ROBERT A. LYNCH, Pеtitioner-Appellant, v. SUPERINTENDENT DOLCE, Respondent-Appellee.
Docket No. 14-1675-pr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Decided: June 18, 2015
Argued: May 7, 2015
LEVAL, LYNCH, and DRONEY, Circuit Judges.
August Term, 2014
LEVAL, LYNCH, and DRONEY, Circuit Judges.
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the caption above.
MALVINA NATHANSON, New York, NY, for petitioner-appellant.
MICHELLE E. MAEROV, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy
GERARD E. LYNCH, Circuit Judge:
Robert Lynch appeals from the denial of his petition for a writ of habeas corpus based on a claim of ineffective assistance of appellate counsel. The state court refused Lynch’s trial counsel’s request to charge the jury that, to find Lynch guilty of first-degree robbery by using or threatening the immediate use of a dangerous instrument, it had to find that Lynch actually possessed a dangerous instrument аt the time of the crime. Although trial counsel made a full record on that request, and cited the applicable New York Court of Appeals case holding such possession to be a required element of the crime, Lynch’s appellate counsel failed to raise the trial court’s refusal to give the charge as an error. New York law is clear that Lynch was entitled to the requested instruction. Indeed, after the conviction – but before appellate counsel filed her opening brief – the Court of Appeals reaffirmed the possession requirement, making clear that refusal to give the requested instruction is reversible error. Appellate counsel’s failure to raise that issue and her decision instead to raise weaker issues that were unlikely to
Lynch timely raised his ineffective assistance claim in a petition for a writ of error coram nobis, which was denied without explanation by the New York courts. The district court (Michael A. Telesca, Judge) denied Lynch’s federal petition for habeas corpus, holding that the evidence presented at trial was sufficient for a rational jury to find that Lynch possessed his co-defendant’s handgun at the time of the robbery. That was the wrong prejudice standard to apply. Applying the correct standard, and in light of the evidence at trial and the pattern of the jury’s verdicts, we conclude that the state courts’ dismissal of Lynch’s claim was an unreasonable application of clearly established federal law, and that his appellate counsel provided constitutionally ineffective assistance. We therefore REVERSE and REMAND with instructions to grant the writ conditionally.
I. The Crime
On October 28, 2004, Rachel Tally-Verstraten drove to the Family Dollar store in Rochester, NY, with her two children. She parked next to a dark-colored Dodge Stratus, in which she saw two men sitting. Tally-Verstraten got out of her car and opened the back door to get her younger daughter out of a car-seat. She then felt someone come up behind her and “shove[ ] something” into her right side. Joint App’x at 169. Tally-Verstraten’s assailant, later identified as Lynch, told her that he had a gun and would shoot her in front of her children if she did not relinquish her purse. She looked down to see if Lynch did in fact have a gun and asked if he was kidding. He replied, “[N]o, give me your purse or I’ll hurt you and your kids.” Id. Lynch then reached out and touched Tally-Verstraten’s pocket; she pushed him back and told him not to touch her. The two began to struggle over the purse; Lynch grabbed it, but Tally-Verstraten would not let go. Lynch “cock[ed] his fist back” and hit Tally-Verstraten in the face. Id. аt 171. She then released her grip on the purse. Lynch got into the passenger side of the Stratus and he and the other man drove away. Two witnesses saw the robbery: Ediberto Diaz, Sr., and his son, Ediberto Diaz, Jr. By chance, the two Diazes
II. The Trial
Lynch and Brandon were each indicted on two counts of first-degree robbery under
At trial, Tally-Verstraten testified about her encounter with Lynch as follows:
Q: And did he touch you anywhere else at that point?
A: He touched me like one hand on the left-hand side and like shoved something against my right-hand side waist (indicating).
Q: Now could you tell what he was shoving?
A: No.
Q: Could it have been his fist?
A: It could have been.
Q: Once you felt that you must have reacted to it. What did you do?
A: Um, I asked if he was kidding me.
Q: Did you turn to face him?
A: No, I was looking down. I wanted to see if there was a gun cause he said there was.
Q: When you were looking down -- pardon me; what were you looking at? His hands?
A: I was just looking down. It was dark so I didn’t see anything.
Q: Okay. You’re certain once he said he had a gun you took it upon yourself to find out if that was true?
A: That’s right.
Q: Obviously --
A: Yes.
Q: -- you concluded that he didn’t have a gun?
A: Yes.
Joint App’x at 176-77. The Diazes also testified that they never saw Lynch possess or use a weaрon during the robbery.
Lynch did not present a defense,1 but Brandon testified on his own behalf. He said that he had never met Lynch and did not participate in the robbery. Instead, Brandon testified that on the day of his arrest, he had been walking through a field when a man approached him and offered to sell him a gun for $20. Brandon obliged, testifying that he had bought the gun for “no purpose.” Id. at 200. He was then walking down the street when the police accosted him, searched him, found the gun he had just bought, and placed him under arrest.
Later, at the charge conference, counsel for both defendants asked the trial court to instruct the jury that, to convict under
I requested you as to count two to include in your charge an essential element of the commission of that offense, that’s the charge that alleges the use or the threatened use of a dangerous instrument, I’d ask that you charge the additional element that the robber/defendant in fact possessed a dangerous instrument.
Joint App’x at 209. The trial court again denied the request.
The court subsequently instructed the jury that to convict of first-degree robbery under
The jury convicted Lynch of robbery in the first degree, involving the use or threatened use of a dangerous instrument. It acquitted him, however, of robbery in the first degree while armed with a deadly weapon, convicting him instead of the lesser included offense of third-degree simple robbery. It also convicted him of the two counts of robbery in the second degree (aided by another person and causing physical injury to a non-participant). The jury acquitted Brandon of all counts related to the robbery, but convicted him of criminal possession of a weapon. The trial court sentenced Lynch to a 12-year term of imprisonment for the first-degree robbery count, 10-year terms for the second-degree counts, and a 7-year term for the third-degree count, the sentences to run concurrently.
III. The Direct Appeal
Lynch was represented by new counsel on appeal. For reasons that are not clear from the record, appellate counsel did not file her opening brief until August 2010, nearly five years after the sentencing. In the intervening years, the New York Court of Appeals decided People v. Ford, 11 N.Y.3d 875 (2008), which held, relying on Pena, that the trial court in that case had erred in failing to
Lynch’s counsel did not raise any claim of instructional error in his direct appeal, however. Instead, the appellate brief raised six issues, arguing that (1) Lynch was never actually convicted of robbery in the first degree because the trial transcript reflected that the court clerk asked the jury if it found Lynch guilty only of third-degree robbery; (2) the evidence was insufficient to support a conviction for first-degree robbery;3 (3) the evidence presented to the grand jury and petit jury was insufficient to support the convictions for second-degree robbery; (4) the convictions were against the weight of the evidence; (5) the court
The New York Supreme Court Appellatе Division, Fourth Department, affirmed Lynch’s conviction and sentence on February 10, 2011. People v. Lynch, 916 N.Y.S.2d 407 (4th Dep’t 2011) (“Lynch I”). With regard to the court clerk’s error in asking the jury whether they found Lynch guilty of third-degree robbery, the court held that the claim was unpreserved, and, in any event, the verdict sheet and the trial court’s charge made it clear that the jury had in fact convicted Lynch of first-degree robbery. See id. at 408. Regarding the sufficiency and weight of the evidence arguments, the court held, “Contrary to defendant’s further contention, the evidence is legally sufficient to support the conviction. Viewing the evidence in light of the elements of the crimes as charged to the jury, we conclude that the verdict is not against the weight of the evidence.” Id. at 409 (citations omitted). The Appellate Division found Lynch’s additional arguments to be without merit. Leave to appeal to the Court of Appeals was denied. People v. Lynch, 17 N.Y.3d 807 (2011).
IV. Postconviction Proceedings
Lynch timely filed a pro se petition for a writ of error coram nobis in the state
Lynch then filed a federal petition for a writ of habeas corpus, asserting the ineffective assistance of appellate counsel claim, as well as several other issues. The district court denied the petition. Lynch v. Superintendent Dolce, No. 1:12-CV-0974 (MAT), 2014 WL 1600379 (W.D.N.Y. Apr. 21, 2014) (“Lynch II”). As to the ineffective assistance of appellate counsel claim, the district court was “not prepared to say . . . that appellate counsel was outside the wide range of professionally competent assistance in failing to press [the instructional error argument] on appeal.” Id. at *12 (internal quotation marks omitted). The district court noted that respondent argued that the claim of instructional error was unpreserved, and stated that “[c]ourts in this Circuit have consistently held that
The district court did not finally rule on the adequacy of counsel’s performance, however. Instead, it held that Lynch failed to demonstrate prejudice, “because, as the Appellate Division found on appeal, the evidence was legally sufficient for the jury to find that Petitioner ‘actually possеssed’ the handgun found later on [his] co-defendant’s person.” Id. The district court noted that while a robber’s mere assertion that he had a weapon is not enough to convict of first-degree robbery under New York law, here there was more: Tally-Verstraten felt her assailant press “an object” into her back as he announced it
We granted a certificate of appealability solely on the issue of ineffective assistance of appellate counsel. Lynch v. Superintendent Dolce, No. 14-1675 (2d Cir. Aug. 29, 2014), ECF No. 27.
DISCUSSION
I. Standard of Review
We review a district court’s denial of a petition for a writ of habeas corpus de novo and the underlying state court’s denial for “an objectively unreasonable
The
To establish prejudice in the appellate context, a petitioner must show that, had his claim been raised on appeal, there is a reasonable probability that it would have succeeded before the state’s highest court. See Claudio, 982 F.2d at 805. Whereas counsel’s performance is evaluated based “on the facts of the
II. The Standard Applied
At the outset, we pause to note what is at stake in this appeal. This appeal has no effect on Lynch’s well deserved and fairly obtained convictions for the serious crimes of second- and third-degree robbery, or the sentences imposed on those counts. The evidence showed that Lynch forcibly stole from a young mother, threatening violence against her and her children and physically assaulting her in the process, and made his getaway with the aid of another person. That evidence overwhelmingly supports his convictions for second- and third-degree robbery, for which he must serve a 10-year prison term. All legal challenges to those convictions and that sentence have been rejected.
Lynch was further sentenced, however, to two additional years in prison, based on a conviction for first-degree robbery. New York has seen fit to divide the crime of robbery into degrees, reserving the highest degree – carrying the highest penalties – for a select group of the most serious cases of forcible stealing. These cases are marked by specified aggravating circumstances. Lynch was
On the face of the statute on which Lynch was convicted, there is an apparent ambiguity: Can a defendant be guilty for threatening a victim with the use of a dangerous weapon when the threat is, in effect, an empty one, because the defendant did not actually possess any weapon? Lynch’s counsel asked the trial judge to advise the jury that such an empty (though obviously frightening and malicious) threat would not aggravate the crime to first-degree robbery. Trial counsel was astute to raise this issue. If the jury was not told that actual possession of a weapon was required, Lynch was very likely to be convicted of first-degree robbery: the victim’s testimony, which the jury had every reason to believe, was unequivocal that Lynch had threatened to shоot her. But if an empty threat would not suffice, and possession of an actual weapon was
In short, the legal issue that Lynch’s trial lawyer attempted to raise, and that forms the underlying issue Lynch continues to press, could not result in overturning his conviction and 10-year sentence for second- and third-degree robbery, but does affect whether he was also guilty of first-degree robbery.
With these issues in mind, and with full respect for the state’s primary role in reviewing its own convictions, we conclude, based upon a full review of the law and the record of this case, that the district court erred in determining that the state court’s decision denying Lynch’s claim of ineffective assistance of appellate counsel was not an unreasonable application of clearly established federal law.
A. Appellate Counsel’s Performance
As explained above, an appellate lawyer’s performance falls below professional standards when she fails to raise a significant, obvious issue, “while pursuing issues that [are] clearly and significantly weaker.” Mayo, 13 F.3d at 533. The jury instruction issue presented by trial counsel was precisely such a
First, there is no question that the issue had merit, because the trial court’s failure to give the requested instruction was unquestionably error under New York law. The principle that actual possession of a dangerous instrument is a necessary element of first-degree robbery by the threatened use of such an instrument had been established in New York for a generation by the time of Lynch’s trial. In People v. Pena, decided in 1980, New York’s highest court stated, “[d]ecisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard, the jury was required to find that [the defendant] actually possessed a dangerous instrument at the time of the crime.” 50 N.Y.2d at 407 (citations omitted). Although that statement may have been dictum, following Pena, the Fourth Department twice held that an empty verbal threat to use a dangerous weapon was legally insufficient for a conviction for robbery in the first degree and under analogously-worded statutes, because “[a]ctual possession of a dangerous instrument is required for robbery in the first degree.” People v. White, 548 N.Y.S.2d 119, 120 (4th Dep’t 1989); People v. Stefano, 522 N.Y.S.2d 391, 392 (4th Dep’t 1987). Each of the other departments of the Appellate Division had similarly so held by the time of Lynch’s trial. See Grant, 17 N.Y.3d at 618 (collecting cases). Thus, it was clearly error for the trial court to refuse to instruct the jury that possession was an element of first-degree robbery under
To the extent there was any doubt as to that requirement, it was dispelled after Lynch’s conviction, but before his appellate counsel’s filing of the direct appeal brief, when the Court of Appeals decided People v. Ford, 11 N.Y.3d 875 (2008). That case reaffirmed the previously-quoted language in Pena and held that a jury instruction that fails to “use the term ‘actual possession,’ or in any other way cоnvey that requirement to the jury” constitutes reversible error. Id. at 878. Following Ford, but still before counsel filed the appellate brief in this case,
The issue was thus plainly a “significant” one for appeal. Criminal defense lawyers are not often able to argue on appeal that the trial court refused a specific request for a jury instruction that, at the time the appeal is heard, the state’s highest court had recently held (based on long-standing precedent) must be given. Moreover, the issue was patently obvious on the face of the record. Trial
A simple Shepard-search of that precedent would have revealed the recent Court of Appeals case applying the precedent in a highly analogous context, the newly-revised pattern jury instructions including the omitted element, and the multitude of Appellate Division cases holding that proof of actual possession was required for a first-degree robbery conviction. Had appellate counsel conducted that search, she would have recognized the error in the jury instruction and that it was a promising ground for success on appeal. The error, it is true, did not affect most of the counts of conviction. But, as discussed more fully below, Lynch did not have any promising issues that could lead to his full exoneration, or even to a new trial on all counts. An issue that could result in reversal of the first-degree conviction would undo the most serious count of conviction, on which Lynch had received the longest sentence. Further, the omission cannot be explained as a strategic decision to eschew arguments that attacked only the first-degree conviction; the first two arguments raised in Lynch’s appellate brief
Respondent argues that appellate counsel’s performance was not deficient, because counsel’s argument that the evidence presented at trial was legally insufficient to convict Lynch of first-degree robbery and her argument that the conviction was against the weight of the evidence were “essentially the same” as the instructional issue. Resp’t’s Br. 42. Furthermore, the argument goes, attacking the sufficiency of the evidence to support a first-degree robbery conviction offered thе possibility of greater relief, since a finding of insufficient evidence would result in outright acquittal, rather than just a new trial.
But counsel’s decision to challenge the sufficiency and weight of the evidence in relation to the possession requirement does not support any reasonable strategic basis for failing to raise the instructional error as a distinct, alternative argument for relief. Counsel did not face a choice between the two arguments; they could have been presented as alternative grounds for reversal of the first-degree robbery conviction. Moreover, counsel who was aware of the Ford decision would have recognized that raising the sufficiency claim without
Respondent contended at oral argument that the Appellate Division would not have analyzed the sufficiency of the evidence here as the Court of Appeals did in Ford, because here, trial counsel did request the possession charge. But even assuming that the court would have analyzed the sufficiency of the evidence in the context of the correct charge, rather than the charge as given,8 the
The sufficiency issue is analyzed on a standard of whether, viewing the evidence in the light most favorable to the prosecution, a rational juror could have found the essential elements of the crime beyond a reasonable doubt. See People v. Taylor, 94 N.Y.2d 910, 911 (2000). Whether an erroneous jury instruction is harmless, by contrast, is analyzed for whether “in light of the totality of the evidence, there is no reasonable possibility that the [instructional] error affected the jury’s verdict.” People v. Douglas, 4 N.Y.3d 777, 779 (2005). The latter is plainly a far more favorable standard for an appellant.
Further, the evidence that Lynch possessed a dangerous instrument, while less than overwhelming, was (as the Appellate Division ultimately concluded) sufficient for a rational, properly instructed jury to convict him of first-degree robbery: Lynch said he had a gun, Tally-Verstraten felt “something” being shoved against her, and the Diazes identified Brandon, who had a gun, as the
Counsel’s failure to raise the instructional issue, while pursuing other issues that were significantly weaker and had no strategic benefit, fell below prevailing professional norms for an appellate attorney.
The heart of the district court’s decision, however, and of the parties’ dispute, is Strickland’s prejudice prong. In order to find prejudice, we must determine whether there is a reasonable probability that the outcome of the appeal would have been different; in other words, whether the Appellate Division likely would have concluded that the trial court’s failure to give the possession instruction was error, and that the error was not harmless beyond a reasonable doubt. See People v. Clyde, 18 N.Y.3d 145, 153 (2011) (noting that, for errors of constitutional dimension, New York courts “apply [United Stаtes] Supreme Court precedent in deciding whether the error is of a type that may be harmless,” citing Chapman v. California, 386 U.S. 18 (1967)). We have already concluded that the instruction was error. Consequently, the critical question in this case is whether “in light of the totality of the evidence, there is no reasonable possibility that the [instructional] error affected the jury’s verdict.” Douglas, 4 N.Y.3d at 779.10 The district court determined that Lynch was not prejudiced
First, the evidence that Lynch himself possessed a gun during the robbery was minimal. Neither the victim nor the third-party witnesses saw a gun in Lynch’s possession during the robbery. Tally-Verstraten testified that she felt
Moreover, the jury acquitted Lynch of the offense of first-degree robbery while armed with a deadly weapon.
Respondent argues, as the prosecutor did in summation, that the jury still could have found possession based on the gun found on Lynch’s co-defendant, Rodney Brandon, during his arrest. We assume withоut deciding that an accomplice’s possession of a dangerous instrument at or near the scene of the robbery would meet the requirement of a defendant’s possession. The evidence, taken in the light most favorable to the prosecution, was sufficient to permit a reasonable jury to conclude that Brandon was the getaway driver, and that the gun that was in his possession when he was arrested was in his possession in the Family Dollar parking lot while Lynch was threatening his victim. But Brandon testified, offering an alternative account of his activities, and claiming that he had
At best, the evidence at trial was sufficient to convict Lynch of first-degree robbery under
It is not enough, however, for us to conclude that, in our view, appellate counsel provided ineffective assistance. Our review function in habeas cases is limited; we may only grant the writ if the state courts’ denial of a petitioner’s claim was an unreasonable aрplication of clearly established federal law, as determined by the holdings of the United States Supreme Court.
The Appellate Division denied Lynch’s coram nobis petition without opinion. In that circumstance, we must still defer to its decision, and deny relief if there is any reasonable basis on which it can be found consistent with the governing precedent. See Richter, 562 U.S. at 102. We have applied that standard here. As discussed above, we have considered every argument that respondent has offered and that we could ourselves hypothesize. Having considered these arguments, we find no basis on which to conclude that a court could reasonably determine that failing to raise a clearly meritorious claim of jury instruction error that would likely lead to reversal of the most serious count of conviction – accounting for a significant increase in the defendant’s sentence – while raising other, weaker arguments, can be considered a strategic choice
III. Relief
A final word as to appropriate relief. A federal habeas court is authorized by Congressional statute to “dispose of the matter as law and justice require.”
In general, the appropriate remedy for ineffective assistance of appellate counsel is to grant a new appeal. See, e.g., Claudio, 982 F.2d at 806; but see Ramchair v. Conway, 601 F.3d 66, 78 (2d Cir. 2010). We do so here. However, because Lynch has already served a 10-year term of imprisonment, which, for the reasons discussed above, was properly imposed for his convictions for second- and third-degree robbery, he remains incarcerated solely on the flawed first-degree robbery conviction. Thus, if we simply ordered a new appeal without more, Lynch would remain imprisoned based on a conviction that the Appellate Division is likely to reverse, after an appeal that could easily consume much of the time remaining on his sentence for the first-degree robbery conviction. Accordingly, in light of the unusual circumstances of this case and the prolonged delay in Lynch’s first direct appeal, we instruct the district court to order Lynch released pending his new appeal. See Matthis v. Hood, 937 F.2d 790, 796 (2d Cir. 1991).
For the foregoing reasons, we REVERSE the judgment of the district court, and REMAND the cause, with instructions to issue a writ of habeas corpus, unless, within one week of our mandate, the State (1) moves to vacate the prior judgment of the New York Supreme Court Appellate Division, Fourth Department, to the extent that judgment affirmed Lynch’s conviction for first-degree robbery; (2) consents to the reinstatement of Lynch’s direct appeal; (3) certifies that Lynch has been released from custody pending the determination of that appeal; and (4) consents that, absent a reason for confinement that does not depend on his conviction for first-degree robbery, Lynch shall remain at liberty pending further order by the Appellate Division.
The mandate shall issue forthwith.