Erwin JACKSON, Pеtitioner-Appellant, v. Arthur LEONARDO, Superintendent of Great Meadow Correctional Facility, Respondent-Appellee.
Docket No. 96-2984.
United States Court of Appeals, Second Circuit.
Decided Dec. 3, 1998.
162 F.3d 81
Argued Sept. 25, 1998.
Finally, Near North argues in its reply brief that
III. Conclusion
We conclude that Near North waived its challenge to the Instruction, and we affirm the judgment of the district court.
Lawrence J. Schwartz, Assistant District Attorney, on behalf of Denis Dillon, District Attorney of Nassau County, New York (Tammy J. Smiley, Assistant District Attorney, on the brief), for Respondent-Appellee.
Before: WINTER, Chief Judge, MESKILL and CALABRESI, Circuit Judges.
CALABRESI, Circuit Judge:
Erwin Jackson appeals from a decision of the United States District Court for the Eastern District of New York (Jacob Mishler, Judge) denying his
Jackson was convicted by a Nassau County jury in 1985 of robbery in the first degree, in violation of
In bringing Jackson‘s direct appeal, Jackson‘s new attorney raised only two issues—she argued to the Appellate Division that Jackson‘s guilt was not proven beyond a reasonable doubt and that the trial court improperly admitted into evidence both lineup and in-court identifications of Jackson.1 Jackson‘s appellate counsel did not, on direct appeal, raise a double jeopardy challenge to the two counts on which Jackson had been indicted. Jackson filed a pro se supplemental brief in the Appellate Division, arguing, among other things, that his speedy trial rights (protected under state law) were violated, that improper jury instructions were given at trial, and that he was wrongly sentenced as a prior felony offender.2
The Appellate Division affirmed Jackson‘s conviction. See People v. Jackson, 145 A.D.2d 646, 536 N.Y.S.2d 482 (1988). And Jackson‘s appellate attorney did not seek a certificate for leave to appeal his conviction to the New York Court of Appeals.
In 1989 and 1991, Jackson moved pro se to reargue his appeal before the Appellate Division and in his 1991 motion, for the first time, raised a double jeopardy claim.3 The Appellate Division denied the 1991 motion in 1992. Jackson contemporaneously filed a series of pro se motions in the Supreme Court of Nassau County under
Jackson subsequently filed several petitions for a writ of error coram nobis with the Appellate Division. In two of these petitions, Jackson claimed that his appellate counsel was ineffective on a number of grounds, including her failure to contest Jackson‘s firearm conviction on double jeopardy grounds. These petitions were also summarily denied by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.
In 1993, Jackson sought a writ of habeas corpus in the United States District Court for the Eastern District of New York. His petition raised a number of claims, including the argument that his convictions on both first-degree robbery and first-degree criminal use of a firearm violated the Double Jeopardy Clause and that he had been denied effective assistance of counsel on appeal.4 The district court dismissed his petition, concluding that Jackson had not been deprived of effective assistance of counsel, as his lawyer had “filed a brief [on appeal] challenging several aspects of his trial and conviction including the sufficiency of the evidenсe to support the jury‘s guilty verdict, the suggestiveness of his lineup identifica-
The district court, nonetheless, issued a certificate of appealability to Jackson. We remanded the case to the district court to enable that court to set forth with particularity the issues warranting such a certificate, as required by
DISCUSSION
I
Because Jackson did not raise the double jeopardy claim in his original appeal, the claim is procedurally barred and we may not reach it as such. See
Jackson cannot argue that his double jeopardy claim was so “novel” that, under Reed v. Ross, 468 U.S. 1, 16-20 (1984), and Engle v. Isaac, 456 U.S. 107, 131-34 (1982), he did not have the requisite tools to make the claim at the time of his direct appeal—the Supreme Court‘s standard, prior to passage of the AEDPA, for excusing procedural default.8 The argument that Jackson now raises—that he may not be prosecuted for two crimes when each of the crimes turns on the same factual predicate—was established long ago by the Supreme Court, see Blockburger v. United States, 284 U.S. 299, 304 (1932), and has been reaffirmed on numerous occasions, see, e.g., Ball v. United States, 470 U.S. 856, 861 (1985). Similarly, after trial but before Jackson filed his first appeal, the New York Court of Appeals decided People v. Brown, 67 N.Y.2d 555, 496 N.E.2d 663, 505 N.Y.S.2d 574 (1986) (per curiam). In Brown, a case involving facts very similar to those in the case before us, the New York Court held that “[w]hen use of or display of a firearm is an element of ... [robbеry in the first degree], the use or display of that same firearm cannot also be the predicate for criminal [use] of a firearm in the first degree.” Id. at 560, 505 N.Y.S.2d at 576, 496 N.E.2d at 665. Under the circumstances, it cannot be argued that Jackson, or rather his appellate attorney, lacked the relevant tools with which to raise his double jeopardy claim on direct appeal. That claim, therefore, is procedurally defaulted and cannot be made directly in federal court through a habeas petition.
II
Jackson contends, however, that his appellate attorney‘s failure timely to raise the double jeopardy claim was sufficiently egregious to constitute constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Since he was deprived of his Sixth Amendment right to counsel,
“To prevail on [a] Sixth Amendment claim, [a] defendant must prove that counsel‘s representation ‘fell below an objective standard of reasonableness’ judged by ‘prevailing professional norms.’ He must also show that ‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” United States v. Alli-Balogun, 72 F.3d 9, 11 (2d Cir.1995) (per curiam) (citation omitted) (quoting Strickland, 466 U.S. at 688, 694).9
A.
In reviewing Strickland claims, courts are instructed to “indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance” and that counsel‘s conduct was not the result of error but derived instead from trial strategy. Strickland, 466 U.S. at 689. We are also instructed, when reviewing decisions by counsel, not to “second-guess reasonable professional judgments and impose on counsel a duty to raise every ‘colorable’ claim” on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983).10
Despite the rigorous Strickland standard, this Court has previously noted thаt “a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.1994). Moreover, relief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy. See Kimmelman v. Morrison, 477 U.S. 365, 385 (1986).
In the instant case, we believe that appеllate counsel‘s failure to raise a well-established, straightforward, and obvious double jeopardy claim constitutes ineffective performance. On the face of the indictment, it was apparent that Jackson‘s two charges—first-degree robbery and criminal use of a firearm in the first degree—rested on precisely the same factual predicate. Trial counsel should, at the very outset, have challenged the two-count indictment and have had one count removed. See Brown, 67 N.Y.2d at 560, 505 N.Y.S.2d 574, 496 N.E.2d 663; see also Ball, 470 U.S. at 861; Blockburger, 284 U.S. at 304. Moreover, that counsel‘s omission cannot have been the result of any kind of strategy. Although appellate counsel cannot be blamed for trial counsel‘s errors, her own failure to raise the double jeopardy issue on appeal also could not rеflect a plausible strategy to pursue more promising grounds. This is not a case in which an appellate attorney had several possible arguments to make, one of which was very strong and the others quite weak, and chose to focus on the strong argument rather than allow the weaker ones to dilute its strength. In this case, there was one sure winner—the argument that appellate counsel did not make. We cannot conceive of how making such an argument could possibly have interfered with the making of any other arguments that were available to Jackson. Most likely appellate counsel, when she filed Jackson‘s direct appeal, simply overlooked the holding of the New York Court of Appeals in Brown—a case that was decided between Jackson‘s trial and his appeal, and whose facts mirrored
We have indicated that the usual practice should be to remand Strickland cases to the district court to permit the attorney in question to testify and explain her actions. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.1998) (per curiam); United States v. Dukes, 727 F.2d 34, 41 n. 6 (2d Cir.1984). This procedure, we have also said, might not be necessary in a highly unusual case where no plausible explanation for an attorney‘s actions exists. In such a situation, a remand can only be a waste of judicial time. We adhere to what we said in Dukes and Sparman. But this is the rare case in which a remand is not needed.
B.
To succeed on a Strickland claim, however, a petitioner must also show prejudice. And this, the State contends, Jackson, as he received no additional jail time for the firearm conviction, cannot do. To emphasize the point, the State, at oral argument, declared that this case is “much ado about nothing” and should therefore be dismissed. One may question why the State would devote its time, еnergy, and money to prevent petitioner, on procedural grounds, from making his convictions adhere to settled law, if doing so made no difference. The explanation, of course, is that leaving the double conviction in place may well matter. For, with the multiplication of repeat offender sentencing schemes in various states, it is more than possible that Jackson сould receive enhanced jail time (should he commit future criminal offenses) precisely because of the existence of the improper firearm conviction in his criminal record.12
The federal Sentencing Guidelines already take into account previous felony convictions and enhance sentences accordingly. See
III
Jackson has met the requirements of Strickland. The failure of his appellate counsel to challenge Jackson‘s double conviction on appeal amounts to constitutional ineffectiveness. Had counsel challenged the firearm count, it is surely the case that “the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. Since Jackson may suffer tangible prejudice from the existence of the addi-
The judgment of the district court is reversed and the case is remanded to the district court with instructions to grant petitioner‘s writ.
MESKILL, Circuit Judge, concurring in part and dissenting in part:
I concur with the majority‘s opinion to the extent that it concludes that the conviction of Jackson for both robbery in the first degree and criminal use of a firearm in the first degree runs afoul of the Double Jeopardy Clause.
I dissent, however, from the majority‘s disposition of the case. I believe that before granting the writ we should remand the case and instruct the district court to offer Jackson‘s appellatе counsel an opportunity to explain her actions. Doing so would comport with the preferred procedure we enunciated in Dukes, 727 F.2d at 41 n. 6, and recently reaffirmed in Sparman, 154 F.3d at 52. In short, I believe very strongly that a lawyer‘s interest in his or her professional reputation is great enough to justify affording that lawyer an opportunity to be heard before his or her performance is branded “ineffective.”
I agree that no goоd explanation readily springs to mind for the failure to raise the double jeopardy argument on direct appeal; it nonetheless bespeaks judicial arrogance to assume that counsel‘s failure is indefensible without first offering her the opportunity to explain her failure to raise the issue. It just is not fair to the state court appellate counsel who is not involved in this pеtition and will have no opportunity to defend herself. I believe that the writ should issue only after appellate counsel has been given the opportunity to explain her conduct and has failed to show that her conduct was reasonable under the circumstances and not ineffective representation.