Perry Bellamy v. William Cogdell, Warden, Brooklyn House of Detention

BELLAMY, Petitioner-Appellant, Perry Warden, COGDELL, Brooklyn

William Detention, Respondent- House

Appellee. 91-2327.

No. Docket Appeals, States Court Circuit.

Second

Argued Before the Banc June 1992.

Court: Sept.

Decided Ciaffa, Mineóla, (Meyer, A. N.Y.

Michael Suozzi, Klein, P.C., counsel), English & petitioner-appellant. for Underwood, Atty. Dist. Barbara D. Asst. Gardens, Queens County, Kew N.Y. Brown, (Richard Atty. Tammy J. A. Dist. Roth, Smiley, Seymour Asst. Dist. At- counsel), Queens County, for re- tys., spondent-appellee. MESKILL, Judge,

Before: Chief NEWMAN, FEINBERG, OAKES, WINTER, KEARSE, CARDAMONE, MAHONEY, MINER, ALTIMARI, PRATT, McLAUGHLIN, WALKER, Circuit Judges. that,

ALTIMARI, exchange evidence at trial in Judge: showed Circuit $5,000, Bellamy Rooney park lured for a banc to consid granted rehearing in Queens where associates of Nichols shot Perry Bella petitioner-appellant whether er Rooney repeatedly Rooney sat in his car. right his denial of my suffered a se trial, including three After almost weeks Amendment. under the Sixth deliberations, days jury jury five a con- appli also invited to brief parties degree of second murder victed 288, 109 Lane, 489 U.S. Teague v. cation degree possession and second criminal of a (1989) to this 103 L.Ed.2d S.Ct. weapon. Bellamy eventually sen- These issues corpus proceeding. habeas years life for the tenced to fifteen mur- judg Bellamy’s appeal from a from arise years der conviction and five to fifteen for District in the United States entered ment conviction, weapon possession the sen- District of New for the Eastern Court concurrently. tences to run York, (Reena denying Bel Raggi, Judge), corpus prior year of habeas Over one the start of Bella- lamy’s petition for a writ (1988). my’s trial, mother contacted At- to 28 U.S.C. pursuant § represent Bellamy. torney Sidney Guran to Judge Raggi opinion, In a well-reasoned retired and Although Guran was then liv- that he'was de- Bellamy’s claims rejected Florida, ing represented Bellamy he had (1) effective assistance nied: agreed past numerous times in the or under Strick- under a se rule either time, again. represent him At that 668, 104 Washington, 466 U.S. land seventy-one years old and had been (1984); (2) due 80 L.Ed.2d 674 S.Ct. duly admitted and successful member (3) opportunity a full fair process; fifty years. the bar for almost competence at a litigate attorney’s preceding during Bel- hearing in connection with In the months held state pursu- lamy’s subject of disci- aside conviction Guran was- motion to set (McKin- Appellate Divi- plinary proceedings Art. 440 in the to N.Y.Crim.Proc.L. ant sion, Department. In 1983). Cogdell, No. 90- First October ney Bellamy v. — -, Disciplinary Departmental F.Supp. 1991 WL Committee 28, 1991). alleged converted client that Guran had (E.D.N.Y. June negligently handled funds in 1976 and had panel of this court reversed A divided in 1977. The Com- real estate transaction court, concluding judgment of the district these mittee scheduled per se denial Bellamy suffered a 11, 1986. On No- charges December for Bella- to counsel. Sixth 10,1986, attorney, Richard vember Cir.1991). 952 F.2d 626 my Cogdell, Baltimore, Jr., hear- requested that the L. review, agree with the banc we On time was adjourned more ing be because narrowly that our court and hold district hear- compile for the needed documents apply does crafted “not men- ing was then and because Guran vacate of this case. We therefore facts hearing.” preparing for the tally capable of judgment opinion and affirm of Guran’s Baltimore based evaluation district court. Gu- capacity phone conversations amount of he found “a certain ran in which BACKGROUND letter, dated Octo- and on disorientation” largely undis- in this case are The facts Dr. physician, from ber 1987, Bellamy went on January puted. Richard P. Cohen. Court, Queens York in New Cohen, suffered According to Dr. in the charged participation County, for his ailments, variety physiological Brian Roo- Officer of State Parole murder diagnosed polyneuro- recently Nichols, including a a notori- ney. Lorenzo “Fat Cat” by periph- “characterized dealer, pathy, a condition Rooney’s Queens drug ordered ous unsteadiness” motor weakness “hit” eral [and] cell. This jail from Nichols’ murder treating Dr. feet. Cohen efforts on one’s killing Rooney’s revenge awas preceding for the for that condition The state’s Guran bars. placing Nichols behind time, problems. Among things, other During as a result of health six weeks. Judge Gallagher: ran emotional stress” associ- informed “physical recently ill- discovered ated with Guran’s might that I had a Dr. You remember medications, Guran had ness and of certain appointment Hospital at N.Y. ... [sic] incapacitated.” Dr. “virtually diagnosis Cohen time a tentative which [a condition, commonly that as a result of that Lou polio also noted known as form inability Needing had “an to con- Gehrig’s Guran “at times” was made. Disease] prognosis prepare disciplinary for Guran’s new- hear- centrate.” The time to [for 11, 1986], ing uncertain at for ly discovered condition was scheduled December miserable, discouraged, time, “anticipated” feeling I but Dr. Cohen [and] and, through my polyneuro- lawyer, home and treatment of the returned evaluation months, copy my medical statement to six sent pathy would take three to Immediately they the Committee. “effectively incapaci- that Guran would be suspend pending my me recov- moved time.” during that tated ery. ... communications, and on these Based on feeling I am better and have secured the Disciplinary underlying charges, Skedelsky, Esq. services of Marvin D. [to notice of with filed a Committee assist me with the trial]. Department on November the First suspended Jury Bellamy’s began im- in trial on seeking to have Guran selection Skedelsky indefinitely practice January Although from the told mediately and accompanying petition that he would be available to assist re- Guran of law. counted, things, Skedelsky unexpectedly among other the substance Guran Bellamy’s occupied with another case when attorney and of the letters that Guran’s result, rep- trial commenced. As a Guran to the Committee. physician had submitted Bellamy resented alone. At no time was response, submitted an affidavit Guran Bellamy disciplinary informed of Guran’s Department First dated December 24, 1987, problems. January or health On he admitted his medical which including three weeks of trial after almost suspension, problems, stated that a deliberations, days jury convict- five stigma, unneces- its attendant with Bellamy degree murder and ed of second Guran, sary. According to he had been degree possession criminal of a second 1984, having essentially retired since taken weapon. except for case. on no new work representation of Bel- prior of his Because 26, 1987, March more than two On familiarity lamy with and because conviction, after months requested per- that he be Guran Department First —sus- —without Bellamy, stating: represent mitted to pended practice from the further Guran I, course, attempt will Department chose to sus- law. First competent by myself. I will have a pend based on his Guran present I must be to assist attorney, but earlier in Decem- made over three months on, strictly Bellamy relies him. then-existing 1986 that his state of ber paid and his mother has trusts me prevented preparing him from health complete disservice to It would be a me. hearing. disciplinary his right to jeopardize his this defendant Having learned that had been sus- Guran permitted if I a fair trial were represented by pro pended, Bellamy, bono in his trial and defense. assist pursuant moved in June 1987 Disciplinary nor the Committee Neither 1983) (McKinney Art. 440 N.Y.Crim.Proc.L. (cid:127) responded Department ever to Gu- First judgment of conviction. to vacate affidavit. Among things, Bellamy other claimed that representa- afforded effective also ad- he was not December On Gallagher, alleged incapacity T. tion due Guran’s judge, John vised the ground. submission, subsequent pending parte about an ex Alternatively, Bellamy requested that a charges and his attendant disciplinary matters if he in a Guran’s com- other situation hearing be held to determine 30, 1987, Judge Galla- him July keep On where it was difficult for petency. Bellamy’s Art. 440 gher denied balance. motion hearing, ruling from the request for a — Cogdell, 1991 WL that: bench - (E.D.N.Y.1991). F.Supp. Significant- trying job an excellent He [Guran] ly, follow-up based on a con- examination any know of mistakes that case. I don’t January day ducted on 1987—the Bella- trying the case. that he made my’s trial commenced and over two months Further, respect after the October letter was written —Dr. Division, came to before Mr. me placed that he Cohen further testified He told me that he he started this case. and, practice restrictions law pending Appel- before the had a matter importantly, unequivocally more stated This was with the First late Division. physical problems that had no ef- Guran’s Depart- the First I called Department. i.e., capacities, fect on his mental there was that Mr. and I told them Guran ment nothing wrong mentally with Guran at the he had a matter my court and was Bellamy’s trial. After the eviden- time of appro- I it was try here and asked if tiary hearing, again the trial court denied try him to priate permit me to conviction, Bellamy’s motion to vacate his case, per- it was they told me that finding that at the time of and that’s me to do that missible for physically capable mentally “was it Mr. exactly what I did and I did at compe- in a the defendant’s case and did so exactly request. He knew Guran’s People Bellamy, v. tent manner.” Ind. doing.... what I was there’s [S]o 31, (Queens Co.Sup.Ct. No. 5382-85 Jan. impropriety respect to Mr. Guran’s 1989). tried the case.... or how he conduct Bellamy’s Division denied added). (emphasis appeal from the trial petition for leave Bellamy’s motion for reconsidera- Upon denial of his Art. 440 motion. Peo- court’s tion, hearing deter- ordered a the court (2d Dep’t ple Bellamy, Ind. No. 5382-85 Nei- competency of trial counsel. mine the Thereafter, 9, 1989). May at nor testified ther Guran affirmed conviction principal witness at hearing. Art. 440 and, opinion, the merits the course Dr. Cohen. Dr. Cohen hearing was entitled rejected argument was authorship of the first testified about right from the denial appeal to an as of letter, 29, 1986 written Guran’s October Bellamy, 160 People v. 440 motion. § Depart- to the First request, that was sent Dep’t 554 N.Y.S.2d A.D.2d to se- support of Guran’s efforts ment summarily Appeals 1990). The Court of disciplinary adjournment of cure an Bellamy’s petition for leave denied let- hearing. regard to the October With conviction. Peo- peal affirmance of his ter, essentially testified that: Dr. Cohen 784, 559 Bellamy, 76 N.Y.2d ple v. opinion the October letter] [in [H]is (1990). 989, 559 N.E.2d 683 N.Y.S.2d “virtually incapacitated” re- remedies, exhausting state court After inability patient’s primarily to his lated of habe- for a writ Bellamy filed home in frequently between his travel District corpus in the United States York, as he understood and New Florida of New York Eastern District Court for the participate in the required to would be in his Art. arguments raised reiterating the ex- hearing. As the doctor disciplinary motion, including claim that he was gave him a ailments plained, un- assistance of denied effective and made him sus- poor sense of balance preju- actual per se or under the der a height- Frequent travel ceptible to falls. Washing- of Strickland dice standard explained He that the this risk.... ened ton, 466 U.S. noted in his letter inability to concentrate (1984). claimed Bellamy also per- L.Ed.2d difficulty he primarily to

related opportu- fair a full and he was denied focusing have ceived Guran would nity litigate my at the state court suffered a se denial of his Sixth or, competence, the issue of Guran’s conse- to counsel. In the ordi- quently, prejudice, the issue of actual be- nary raising a defendant a claim of request cause court declined his com- ineffective assistance of counsel bears the pel hearing. Guran’s attendance at the heavy establishing burden of that his memoranda, representation “counsel’s legal After fell below an submission ob- rejected the district court these jective claims and standard of reasonableness” and denied and dismissed habeas cor- unprofessional “but for counsel’s er- pus petition evidentiary without an hear- rors, proceeding the result of the ing. opinion, In a well-reasoned the court Strickland, different.” held that rule did apply U.S. at 104 S.Ct. at under the facts of this case and that Gu- However, in certain Sixth Amendment con- ran’s deficient un- involving “[ajctual texts or constructive der the Strickland standard. The district counsel,” denial of the assistance of preju- although court further concluded that presumed. dice is Id. at 104 S.Ct. at testify, ran did not testimony of Gu- 2067. treating physician concerning This court has found such se viola- competence mental and the favorable ob- where, tions two limited circumstances: judge the regarding servations of Gu- defendant, unknown to the his or her coun- acuity physical ran’s overall mental and was, (1) sel at the duly time of trial vigor during almost three weeks of trial practice licensed adequate to determine law Guran’s com- because of failure petency. The court therefore ever determined to meet the requirements substantive that another on the issue of law, practice for the of see United States v. competence, or on whether Novak, 883, (2d Cir.1990) 903 F.2d 890 prejudiced by representation, was Guran’s (counsel fraudulently procured license unnecessary, particularly light of misrepresenting that he was entitled to a to set forth any with “fail[ure] special dispensation from the bar examina- particularity what further evidence would tion); States, Solina v. United 709 F.2d adduced had Guran testified that 160, (2d Cir.1983) (counsel 167 repeatedly would have undermined the factual find- failed the bar exam and was not a member ings competency.” thoroughly of After re- bar) any (2) implicated in the defen- record, viewing court, the the district crimes, dant’s see United States v. Cancil- court, agreeing the trial found that la, (2d Cir.1984). 725 F.2d 870 Even any there was “no evidence ... mental occasions, on these applied per we have the infirmity” of Guran at the time of trial that se rule “without enthusiasm.” impeded ability present defense, Aiello, States v. 900 F.2d 532 and that Guran in fact vigor- conducted a Cir.1990). ous defense. have advanced two rationales for Bellamy, again represented by pro bono plying “juris- se rule. The first is court, appealed reiterating to this applies dictional” and in cases where the the claims made to the district court. A attorney duly is not licensed at the time of court, divided reversed the district trial. It stems Court’s holding that on the facts of this Bella- Zerbst, decision in Johnson v. 304 U.S. my suffered a se denial of his Sixth 82 L.Ed. right to counsel. 952 F.2d 626 (2d Cir.1991). (1938), A majority provide of the that the failure to active criminal judges grant of the court then voted to jurisdic- defendant with counsel created “a petition to State’s rehear the case in banc. tional to a bar valid conviction.” See Soli- na, (discerning 709 F.2d at 168-69

DISCUSSION meaningful distinction total between ab- principal appeal representation on sence of issue is counsel). whether under the facts of this case Bella- unlicensed The second ratio- inter- filled of conflict notions is based on nale have been discov- secure co-counsel would where in cases both est, applies arguments unpersua- are Novak, ered. licensed, duly see is not lawyer sive. 890; Solina, F.2d at F.2d at in the implicated lawyer is

where Novak, attorney who was Unlike Cancilla, client, his or her see crimes of duly to the bar certain- never admitted circumstances, In these F.2d at 870. have been ly, hypothetically, would not compromised be- necessarily the defense misrepre- his fraudulent admitted without “cannot be ordinarily the advocate cause sentation, fully, not conditional- Guran was hap- might fear what wholly free from fifty for almost ly, practice admitted lead should vigorous defense pen if a Bellamy’s trial and years at the time inquire into judge to or the trial prosecutor reality and treat to recast there is no basis background and discover [or Moreover, it is [or her] not. him as if he were Solina, F.2d credentials[,]” lack repre- effect, any, if her] Guran’s unclear what Regardless wrongdoing. or own suspen- timing of his sentation application presented, facts Division. Not by the Appellate sion or both under one justified rule must be respond to Division never Aiello, 900 F.2d at See of these rationales. affidavit, not sus- Guran was Bella- two months after pended until over prospec- my’s turn to backdrop, we Against this tive. Relying Bellamy’s claim. the merits of addition, represen- unfulfilled In Novak, Bellamy contends that primarily regarding Department to the First confines tation narrow within the this case falls type of approach Novak, co-counsel does we found a rule. per se of our present behavior intentionally fraudulent Sixth of defendant’s se violation indicates Guran The that Novak. record counsel right to counsel where Skedelsky more than Attorney spoke to by fraud to the bar secured admission had regarding possible collabora- he one occasion state that ulently misrepresenting Skedelsky Bellamy’s trial and that from tion at dispensation special eligible for was available. that he would be promised Guran that exam. We reasoned taking the bar his called for Unfortunately, when Guran defect in a substantive this fraud resulted oc- assistance, Skedelsky unexpectedly was has been no “there in licensure because schedul- of a last minute cupied as a result assumption that defense an foundation alone. tried the case Guran necessary ing conflict and to legal skills had the Gu- Thus, record evidence there no ‘duly admitted’ him become permit misrepresented intentionally ran F.2d at 890. bar.” member would secure co-counsel. Moreover, attorney’s delib because admission, obtaining fraud in erate “[t]here is not Furthermore, although the record vigor underlying risk that remained informed Guran regarding whether clear deeper to a have led could ous defense Appel- his judge trial attorney] discovery that probe and [the' co-counsel, the secure late Division to Id. ‘duly’ admitted.” not been informed that Guran plainly record reveals disciplinary hear- pending Novak, court of Bellamy the this case to Analogizing immediate possible secure, ing, of his re- argues that Guran col- reasons, and of intended for health by law mis- practice license tained In- Skedelsky. Attorney try Bella- laboration that he would not representing judge request, the trial deed, at Guran’s Bellamy, According to my’s case alone. shortly be- have been contacted certainly would almost Guran could whether Guran inquire trial to misrep- fore but for suspended before told was Bellamy at trial and represent argues that Bellamy further resentation. obviously judge also he could. defending Bel- from prevented was Bellamy represented knew that Guran unful- for fear that lamy vigorously circumstances, justify alone. Under these it can- finding attorney’s representa- not be said that Guran’s conduct Rather, tion given ineffective. proached egregious deceptive varying behavior effects problems health can have Novak, Solina, Cancilla, of counsel in on an ability function, individual’s claims way apprised they who of ineffective assistance based on attorney were, respectively, implicated unlicensed or illness are best suited to fact-specific in their wrongdoing. Aiello, client’s prejudice inquiry See mandated Strickland. 900 F.2d at (refusing to extend per se Furthermore, in the instant an Art. “ ‘beyond egregious the sort of con- specifically was held probe present ”) duct in Solina and Cancilla.’ the issue of competence repre- (citation omitted). Bellamy sent in order to Bellamy’s resolve reasons, For similar it cannot be said claim that he was denied effective assis- prevented that Guran mounting tance of counsel because of Guran’s ill robust defense something because he had health. The evidence adduced at the hear- to hide. suspend ing through testimony phy- of Guran’s pending in Department the First at the sician—based on an examination of Guran time of trial was based on Gu- day Bellamy’s trial commenced—clear- health, alleged ran’s ill any promise not on ly demonstrated that Guran had no mental above, to secure co-counsel. As discussed incapacity at the time of trial. This medi- Guran informed the court of his situation. cal evidence was consistent with the trial Compared Novak, Solina, to counsel in and judge’s own favorable observations of Gu- Cancilla, Guran had no skeletons in his physical mental and during condition giving closet rise to a conflict of interest the almost three Although week trial. that would have him inhibited from defend- testify ran did not at the Art. hearing, ing Bellamy vigorously. Indeed, the record the testimony of physician, which indisputably reflects provided that Guran subject cross-examination, to extensive vigorous, competent advocacy Bellamy’s together testimony with the lay witness- behalf. (another Skedelsky, Knapp es Victor attor- ney approached whom Guran on one occa- -Bellamyfurther contends that state regarding possible collaboration) sion incapacity ments of mental made Guran mother, afforded a full Department to the First in connection with and fair opportunity litigate to the issue of postpone efforts to disciplinary competence. evidence, Given the hearing provide upon an alternative basis testimony would have been of little apply which to the se rule. This con value. unavailing tention is as a policy matter Of and on the facts of this case. hearing, After the the state court found that at the time of Guran “was men- As the recently Court has ob tally physically capable the de- served, “[p]er se rules ap should not be fendant's competent case and did so in a plied ... generaliza situations where the- Following manner.” a careful review of matter; tion is empirical incorrect as an the record, the the court district concluded that justification for a presumption conclusive the finding state amply sup- court’s was disappears application when pre of the ported by the evidence. sumption will not reach the correct result most of the time.” Thompson, full, fair, Coleman v. Because had a - -, -, 2546, adequate U.S. 111 hearing, S.Ct. Art. 440 and because the 2558, (1991). 115 L.Ed.2d 640 Unlike the district court concluded that the state presented by “phony” situation attor court’s factual regarding determination Solina, neys by Novak and or the attor competence supported was ney record, involved in his client’s crimes in properly Can- the district court deferred cilla, simply nothing there is inherent an finding, state court’s factual see 28 attorney’s necessarily 2254(d); illness that Mata, will im U.S.C. v. Sumner 455 § pede spirited 1303, a 1307, defense “most of the time” U.S. 102 S.Ct. 71

309 regular are in judges who 2254(d) circuit curiam) (§ (per (1982) 480 L.Ed.2d appeal an may that service order high active a to show courts federal “requires the heard or reheard proceeding be other or factfindings of deference measure appeals in banc. Such by the court courts.”); v. Ventura by the state made is not favored (2d hearing rehearing or 1048, Cir. 1054 Meachum, F.2d 957 except (1) not, ordered ordinarily be will its discretion well within 1992),and was court by the full same this when consideration evidentiary an to hold Sain, uniform- maintain necessary 372 secure or v. See, e.g., Townsend issue. (2) pro- decisions, 745, 759, L.Ed.2d when 9 its or 318, ity of S.Ct. 83 U.S. exception- question grounds, ceeding on other involves (1963), overruled 770 — -, U.S. importance. Tamayo-Reyes, al Keeney v. (1992); 318 118 L.Ed.2d are that in bancs Thus, cautions the Rule Cir.1992). (2d 24 Wood, 963 F.2d Tate v. “ordinarily will be “not favored” circumstances, re these Under or maintain to secure except ... ordered as a incapacity alleged on Guran’s liance “a raises the case uniformity” unless is, se applying ground Nei- importance.” exceptional question matter, unwarranted. factual met has been here. condition ther does not this case Having concluded necessary proceeding inAn banc Amend- our Sixth the ambit fall within uniformity, require or maintain secure need not we jurisprudence, ment panels prevent obviously intended ment presented would be any issues address unless a earlier decisions overruling ruling the merits. contrary by a agrees. See United court majority arguably ruling would contrary note that 38 Valencia, F.2d 669 v. States meaning rule” within a “new constitute J., dissenting); Graafeiland, Cir.1981) (Van 288, 109 S.Ct. Lane, U.S. Teague F.2d Aguon, States proge- its (1989),and 1060, 103 L.Ed.2d J., Cir.1988)(Reinhardt, con (9th n. 6 ny- grounds, Ev on other curring), overruled — -, States, U.S. v. United ans CONCLUSION (1992). Bella- 119 L.Ed.2d S.Ct. remaining claims considered haveWe Guran, faced with Sidney my’s lawyer, peti- support Bellamy in advanced be- of his license—well loss the immediate and find corpus of habeas a writ tion for of Guran’s Bellamy’s trial —because fore on the Based merit. without to be them Division of own admission panel is vacat- opinion of foregoing, keep allowed Guran was incapacity; the district judgment of ed and try the enough long license dismissing denying he did not of a because affirmed. corpus is habeas writ for a first heard fulfill. precedents our under held peal (with whom Judge FEINBERG, Circuit (2d 883 Novak, F.2d 903 States United KEARSE, NEWMAN, OAKES, JON Cancilla, 725 Cir.1990); States WINTER, Circuit and CARDAMONE v. Unit- Cir.1984); Solina (2d 867 F.2d dissenting: join), Judges, Cir.1983),Bella- (2d States, F.2d 160 709 ed should This case dissent. respectfully I of se denial thereby suffered a my an in banc subjected have been never Bella- to counsel. Sixth been, the has it hearing. And now Cir.1991). 626 F.2d 952 Cogdell, my v. incon- is a result reached has majority attempt panel Obviously, the precedents. our sistent is no there so cases earlier overrule procedure banc the in Misuse maintain or secure of for an in banc need merely a dis- here Appel- of uniformity. Rules 35(a) of the Federal Rule toas court of the judges among the pute that: provides Procedure late does not does our Rehearing in whether Hearing or (a) When case,” as the this of facts to the “apply majority of A be Ordered. Will Banc majority puts it. disagreement Such a (1989), L.Ed.2d 334 corpus habeas does not an in justify banc. See In re proceeding. Those issues are whether the Inc., Drexel Burnham Lambert 869 F.2d panel’s decision in this case announced a 116, (2d Cir.1989) (Miner, J., concur “new rule” within meaning of Teague, ring) (finding standard for in banc review so, if whether respondent-appellee panel majority met when “the ap has any arguments waived upon based Teague plied rules specific well-settled to the facts by raising them for the first time ain of reaching decision), case” in its cert. [the] rehearing for panel after the denied, 490 U.S. 109 S.Ct. 104 ruled. banc specifically invit- (1989). L.Ed.2d 1012 briefing ed on those majority issues but the

Moreover, does much of the not address difference be- them. majority tween the minority involves a sum, In the in proceeding banc here was resolution of a factual issue is in required either to maintain uniformity appropriate sense for in banc consideration. or to decide an issue exceptional impor- majority finds that Guran had a firm tance. It is clear that banc majority (Marvin lawyer commitment from another simply does not like the result of the Skedelsky) D. to assist him at trial and that decision. But an in banc for that is reason Skedelsky “unexpectedly” unavailable. contrary spirit to the of FRAP 35. Such below, As stated we find no evidence in the procedure misuse of the in banc bodes ill record of such a firm by commitment Ske- for a court filings whose soared above delsky knowledge or even 4,000 for the first time backlog, and whose date until very eve of trial. despite the devoted efforts of all the judges Nor appeal does this question raise “a court, significantly rose in the statis- exceptional importance.” There nothing is tical year that ended on June 1992. In about the case itself exceptionally that is caseload, the face of such a the waste of important position unless one takes the time and effort caused unnecessary in grant that any a writ of corpus habeas bancs justified. cannot be See Jon O. New- is exceptionally important. We have not man, In Banc Practice the Second Cir- stage reached that of in banc jurispru- cuit: Restraint, The Virtues of 50 Brook. dence, hope I that we never do. This (1984); Newman, L.Rev. Jon O. sport. case is a factual I doubt if there will Banc Practice in Circuit, the Second 1984- ever be another in lawyer: (a) which a (1989). Brook.L.Rev. admits incapacity, including mental inabili- The merits the appeal ty (b) concentrate; makes this admission Appellate Division; (c) promises the Turning to the appeal, merits of the un- get Division that he will another der circumstances, most when a criminal lawyer criminal but does not defendant raises claim of ineffective as- (d) fulfill promise; makes this sistance of the defendant must in response Division’s mo- demonstrate both representa- unreasonable (returnable tion before commencement tion attorney and sufficient preju- trial) the lawyer’s immediate dice render the result of the trial unrelia- (e) suspension; certainly almost be ble. Washington, Strickland v. 466 U.S. suspended prior to the criminal trial but for 668, 687, 80 L.Ed.2d promise; (f) the unfulfilled suspend- (1984). cases, In a small class of how- ed two months after the trial any without ever, we do not apply Strickland’s two- being further record made. pronged test of ineffective assistance but short, In the unique presume facts of this case instead are that has there been preju- “exceptional and it raises no dice. impor- issue in Court Strickland Indeed, tance.” the only spoke issues even re- of such cases when it asserted that motely approaching that threshold are contexts, certain Sixth Amendment “[i]n involving application those the of Teague prejudice presumed. is Actual or construc- Lane, 489 U.S. 103 tive denial of the assistance of counsel alto-

3H to fear in- perhaps less—and more—reason prej- in to result legally presumed gether is representation. adequate at 2067. 466 U.S. at S.Ct. udice.” Novak, again in thor- years ago, we Two Strickland, we after and Both before subject. the The attor- oughly canvassed in unusual presumption applied a such (Joel Steinberg), B. al- ney in that case that a defendant and held circumstances practice during the though to law licensed right to denied the constitutional had been fraudulently had obtained defendant’s Solina, counsel defendant’s In counsel. Kearse, by Judge opinion his license. an In a practice. to admitted never been had holding in and the Solina we reaffirmed Judge Friend- thorough opinion typically representation the at trial consti- held that though the rule even applied per se ly, we a per of coun- tuted se ineffective assistance in law was trained representative sel, notwithstanding. prejudice Our lack of reasonably competent furnished parently reasoning again that technical “mere against the the evidence per result in se Sixth defects need not overwhelming that so defendant was “serious violations” convicted certainly have been almost do. 903 F.2d at 888. substantive defects” him. represented had regardless of who had pointed out that in there Solina We Amend- a defendant’s Sixth held that We inability to meet “a demonstrated been where, is violated right to counsel ment competence in the law threshold criteria knowledge, “his the defendant’s without of the bar (as in counsel’s failure Solina’s prac- to not authorized representative was examination)_” Similarly, in Id. No- state, lack of such and the any in tice law licensure vak, Steinberg’s defect “[t]he seek from failure stemmed authorization instead simply technical but was was not going to a its denial for reason from it or At time of his serious and substantive. pass a bar failure to ability, legal such bar, Steinberg had to the admission character.” examination, of moral or want require- normal substantive met the State’s omitted). (citation We F.2d at 167 York State for admission to New ments of a “[application there concluded had practice law His competence Bar. required in a appears to us be rule tested, entitled and he was not never been the Su- teachings of like at 890. testing.” 903 F.2d bypass such Court_” at 168. We 709 F.2d preme Amend concerning Sixth Our se rule however, out, that we point careful in the a rule is not rooted ment violations any simply technical not intimate author case. As the any particular facts of of a defen- status in the licensed defect pointed in this case opinion majority to a amount representative would dant’s Aiello, F.2d out United States Amendment, F.2d Sixth violation Cir.1990), applicable whenev it is a examples. several gave at we licensing relationship with lawyer’s aer per se rule Cancil- applied next is that he inhibited authorities such “ had attorney at issue In that ‘wholly la. conducting vigorous defense but, licensed, unknown apparently happen if a might fear of what free from in criminal defendant, participated prosecu lead the defense should vigorous for which into his inquire to the conduct judge related conduct or the tor lack Despite the of creden his lack background was convicted. discover defendant ” defendant, Solina, 709 (quoting we prejudice Id. proof tials.’ Aiello, 164). emphasized created participation we such F.2d at As held there that exclusively defendant se rule denied we do not “limit of interest conflict in Soli- found precise The reason we situations at trial. fact Rather, our stan lest in that instance na Cancilla. presumed prejudice relationship sensitive prevented dards undercut may have conflict that the client, repudiate we attorney and representing between vigorously attorney from considera approach in rigid Can client, being discovered. fear of favor of 900 F.2d each case.” the will be seen tion cilla, 870. As at 725 F.2d facts added). (emphasis no at we have below, of this case on the facts application facts of this case call for the Bellamy apparently did not have of our se rule. Accepting majori- the funds to retain other counsel. Guran knew ty’s of facts statement this at supplementing promised the time he Appellate respects record, it in upon some based Division that I he would try not the case think it is clear that because Guran did alone and merely not would assist another at- counsel, torney, have funds to hire other promise he his made was thus mislead- ing. misrepresentations material and omissions that led to avoiding suspension equally misleading in his deal- being try allowed to case himself. ings judge. with the trial Guran’s hand- First, promised he Appellate Division written letter judge to the did not disclose on December that “of course” he lawyer his own had asserted Guran’s alone, would not try Bellamy’s case that he lack of competence participate to in his own would attorney obtain another try to disciplinary proceedings or that Guran case and that merely he would assist that promise would Appellate Division the attorney. However, at the time this com- very day next to obtain other try counsel to made, mitment was Guran conceded that the case. And there nothing is in the spent he had retainer mother suggest record to that Guran otherwise paid. Thus, had going how Guran was to judge informed the of these facts. On this pay to hire unclear, other counsel was record, the call judge the trial to the which bears the sincerity promise. Appellate Division would only have evoked an inquiry into whether Guran was still day before, letter handwritten good standing and would not have trig- Guran had judge informed the trial that he gered a file, review of the entire which had secured the services of Skedelsky to would exposed misrepresen- Guran’s assist him However, at trial. the letter tations. strongly implied that Guran —not Skedel- sky the lead contrary be to We note —would that it is undisputed that at the the representation Guran very made the time of nothing knew about day next Appellate Division. More- charges against Guran, Guran’s admis- over, Guran little carry prom- did to out his sion incapacity or representa- Guran’s get Skedelsky him, ise to to help either as tion that he would attempt not try to “second or seat” as lead counsel. Al- case alone. Bellamy has sworn an affi- though Guran mentioned Skedelsky davit that would he not have allowed Guran he “might” trying seek assistance represent him at trial had he known of Bellamy case, Guran never actually re- above, the facts stated contention quested such assistance until the eve of disputed. Indeed, according to the trial. Skedelsky was apparently thus affidavit, nev- Bellamy got inkling his first er informed of the trial date until the last Guran’s situation sentencing at moment and was never asked to make a April 1987, when the judge commitment to be available particular at a not allow Guran represent Bellamy due time. Notably, Skedelsky was never asked on March 26. to engage any preparation try or Contrary to the majority’s claim that it is Indeed, otherwise to in the assist case. he “unclear” what effect misrepre- testified that Guran would have been lead sentations had on suspension, the only he, if Skedelsky, even partici- reasonable inference is that the pated. This fulfill Guran’s suspended would have Guran im- Division. notably, Also mediately prevented trying him from judge, Guran did ask the trial whom he Bellamy’s if it had known he would enough “Jack,” knew well address not be honoring promise. Guran admit- adjourn the trial to a date which Skedel- ted his incompetence falsely promised sky would available. be preventive to take actions for express The lukewarm efforts to secure a lawyer purpose of avoiding suspension. Without to “assist” the result of the fact that making disclosure, full prevailed he upon Guran, who conceded that he could not the trial court to him try allow the case. repay if retainer was unable to It is unrealistic to assume that Guran’s This ob- of little value.” have been the would bring about not did of conduct course of to assume the content appears no servation result, i.e., suspension and no desired Moreover, one of testimony. not lead coun- Guran’s attorney as hire another need possibly know could these witnesses sel. key questions: Did Guran to the answers governed case that this believe I thus defense aggressive conduct of the fear First, pre- we have decisions. prior by our prosecutor and to the might disclose a law- where per se rule applied a viously promise not of his courts his breach state (Solina) and where yer is licensed so, and, alone, if did such try the case through misrepre- a license lawyer obtains of the defense? his conduct fear affect lawyer, a (Novak). In this sentation attempts to ob- half-hearted Were Guran’s not have that he had admitted who limited another counsel aid of tain the himself, avoided to defend capacity mental Skedelsky’s Was resources? his financial thereby retained suspension and immediate “unexpected at trial inability to assist only else to defend someone authority deny fear of might well Guran Guran?” Division by promise a it), (or consequences of any disclosure Had there unfulfilled. ultimately went him. It question Bellamy had a misrepresentation, been such of as finder up to the court then be place before taken have suspension would any such credibility of assess the fact to could Bellamy’s trial and Guran denials. defended him. Conclusion any law-

Second, doubted can it be unim- is indeed (assuming his mind yer judgment reverse I would therefore putting not be inhibited paired) would At court, did. as the district of to have by a reluctance vigorous defense a a least, I would remand very he find out that prosecutor judge or the hearing. Strickland of alone violation the case trying to act promise attorney, a another to assist order? a to forestall given of arising from fear upon inhibition every bit facts was the true of disclosure KINNEY, Executrix and Sur- A. Joan is in where strong as it Kinney, Spouse viving Frank J. it Perhaps all. licensed lawyer is not Jr., Plaintiff-Appellant, lawyer fears stronger: the unlicensed only claims but does losing a status facts, Guran was unique on these enjoy; DEPART- JUDICIAL CONNECTICUT right duly licensed losing jeopardy Curry, Comptroller, MENT; William in fact befell consequence that practice, Connecticut; L. Francisco State known. facts were once the him Treasurer, State Connecti- Borges, has not if there Even Peters, cut; Chief Justice A. Ellen Amendment, the case the Sixth violation Court; Aar- Connecticut to allow remanded be Administrator, at least should Ment, Court Chief hearing under to conduct court district Court, Defen- Superior Connecticut failure to court’s The state Strickland. dants-Appellees. as a witness Bellamy to call Guran permit 92-7378. Docket No. opportunity Bellamy of fair deprived Appeals, States Court the effectiveness as to develop record Circuit. Second makes much majority counsel. at which Skedel- state 12, 1992. Aug. Argued (another attorney whom Knapp Victor sky, 10, 1992. Sept. Decided col- possible regarding approached and Bella- laboration), physician concludes testified and my’s mother testimony evidence “Guran’s given this

Case Details

Case Name: Perry Bellamy v. William Cogdell, Warden, Brooklyn House of Detention

Court Name: Court of Appeals for the Second Circuit

Date Published: Sep 8, 1992

Citation: 974 F.2d 302

Docket Number: 17-1813

Court Abbreviation: 2d Cir.