651 F. App'x 5
2d Cir.
2016

VALDIN INVESTMENTS CORPORATION, Plaintiff-Appellant, v. OXBRIDGE CAPITAL MANAGEMENT, LLC, Oxbridge Capital Fund I, LLC, Oxbridge Capital Fund II, LLC, Oxbridge Capital Fund III, LLC, Oxbridge Capital Fund IV, LLC, Oxbridge Capital Fund V, LLC, Oxbridge Capital Fund VI, LLC, Oxbridge Capital Fund VII, LLC, Oxbridge Capital Fund VIII, LLC, Oxbridge Capital Fund IX, LLC, Defendants-Appellees.

15-2032-cv

United States Court of Appeals, Second Circuit.

June 1, 2016

Having found that Morales‘s Fifth Amendment rights were violated, we turn to the government‘s argument that Morales defaulted the claim by failing to raise it on direct appeal. “Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent.” Cox v. United States, 783 F.3d 145, 150 (2d Cir.), cert. denied, U.S. , 135 S.Ct. 2907, 192 L.Ed.2d 938 (2015). “We review de novo the question whether procedural default of a claim raised for the first time on collateral review may be excused.” Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012).

Ineffective assistance of appellate counsel can constitute cause to excuse a procedural default. See Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000); United States v. Withers, 638 F.3d 1055, 1065 (9th Cir.2011); Hall v. Vasbinder, 563 F.3d 222, 236-37 (6th Cir.2009). Counsel‘s failure to raise a claim on appeal constitutes “constitutionally inadequate performance” where “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); see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998). Here, counsel‘s failure to raise Morales‘s significant and obvious Fifth Amendment claim—while instead advancing weaker arguments—constituted inadequate performance.

Nor can we say that Morales was not prejudiced by his counsel‘s objectively unreasonable performance—even assuming, without deciding, that Morales‘s Fifth Amendment claim would be reviewed for plain error. Despite the factual finding that Morales rejected the proposed sentence after Marquette communicated it, the record reflects that Morales expressed confusion about the exact terms of the “offer” when offered an opportunity to be heard later during the hearing. And he raised this grievance again in connection with his motion for new counsel. Further, had this Court had the opportunity to consider this claim in conjunction with the claim that the district court erroneously applied a 20-year mandatory minimum, rather than the 10-year mandatory minimum, there is a substantial probability that the original panel would have remanded for resentencing.

Because we find that a resentencing is required based on Morales‘s Fifth Amendment claim, we need not reach his ineffective-assistance-of-trial-counsel claims or any additional arguments. Accordingly, the order of the district court hereby is REVERSED. We REMAND for resentencing.

For Plaintiff-Appellant: Jeffrey L. Rosenberg, Jeffrey L. Rosenberg & Associates, LLC, Old Westbury, NY.

For Defendants-Appellees: Lisa Solbakken, Robert Angelillo, Arkin Solbakken LLP, New York, NY.

PRESENT: Jon O. Newman, José A. Cabranes, Raymond J. Lohier, Jr., Circuit Judges.

SUMMARY ORDER

Plaintiff-appellant Valdin Investments Corporation (“Valdin“) appeals from a May 26, 2015 order of the District Court denying Valdin‘s “motion to enforce court orders and stipulations” against defendants-appellees (collectively, “Oxbridge“).1 Valdin presents 15 issues for review on appeal. We cannot consider any of them, however, because Valdin lacks standing. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

Valdin seeks to enforce three “Settlement Orders,” under which Oxbridge purportedly owes various obligations.2 But Valdin does not argue that Oxbridge owes those obligations to Valdin. Rather, Valdin asserts that it assigned the relevant “interests and entitlements“—including the right to enforce the Settlement Orders—to Pioneer Investment Management Limited, which in turn assigned them to Sun Global Investments Limited.3 Valdin‘s assignment of its rights extinguished its claims against Oxbridge and deprived it of any interest in this litigation. Valdin therefore lacks standing. See Aaron Ferer & Sons Ltd. v. Chase Manhattan Bank, Nat‘l Ass‘n, 731 F.2d 112, 125 (2d Cir.1984). Valdin assigned its rights on August 1, 2010, which means that Valdin also lacked standing when it filed the instant motion on February 27, 2015. Accordingly, the District Court lacked subject-matter jurisdiction to reach the merits of Valdin‘s motion, and its order must be vacated.

It is possible, of course, that Valdin‘s assignee would have standing as the real party in interest. See W.R. Huff Asset Mgmt. Co. v. Deloitte & Touche LLP, 549 F.3d 100, 107-11 (2d Cir.2008). Ordinarily, we would permit the real party in interest to ratify, join, or be substituted into the action pursuant to Rule 17(a)(3) of the Federal Rules of Civil Procedure. See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 20-21 (2d Cir. 1997).4 Here, however, Valdin, the sole plaintiff, lacked standing on all of its claims. Its motion was therefore “a nullity” from the beginning, so that there is “no lawsuit pending for the real party in interest to ‘ratify, join, or be substituted into’ under Rule 17(a)(3) or otherwise.” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l., 790 F.3d 411, 423 (2d Cir.2015).5

CONCLUSION

For the foregoing reasons, we VACATE the May 26, 2015 order of the District Court and REMAND the cause to the District Court with direction to dismiss Valdin‘s motion for lack of subject-matter jurisdiction. Valdin‘s motion to strike portions of Oxbridge‘s supplemental appendix and response brief is DENIED as moot.

Notes

1
As the District Court correctly observed, “there is nothing in the Federal Rules of Civil Procedure styled a ‘motion to enforce.‘” Valdin Invs. Corp. v. Oxbridge Capital Mgmt., LLC, 106 F.Supp.3d 316, 324 (E.D.N.Y.2015) (quoting Martens v. Thomann, 273 F.3d 159, 172 (2d Cir.2001)). Because we resolve this appeal based on lack of standing, we need not address “the potential error of terminology” in Valdin‘s motion. See Hendrickson v. United States, 791 F.3d 354, 357 n. 1 (2d Cir.2015) (internal quotation marks omitted).
2
The Settlement Orders consist of a stipulation of settlement so-ordered by the District Court on March 6, 2009 (the “First Stipulation“); an attachment order of the same date; and a “Second Stipulation” of February 11, 2010, which was not ordered or approved by the District Court, but which provides for that court‘s jurisdiction.
3
We assume that Valdin‘s assignment was effective. Although Oxbridge argues that Valdin could not have assigned its obligations under the relevant agreements, Oxbridge does not dispute that Valdin was permitted to assign its rights. Moreover, Valdin, as the party invoking federal jurisdiction, bears the burden of establishing standing. Keepers, Inc. v. City of Milford, 807 F.3d 24, 39 (2d Cir.2015). Accordingly, we need not question Valdin‘s assertions insofar as they demonstrate the absence of standing.
4
Rule 17(a)(3) provides in relevant part that “[t]he court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action.”
5
The District Court found that Valdin was dissolved in 2010. It is unclear whether a Panama corporation may seek to enforce a court-ordered settlement agreement after that corporation‘s dissolution. See Valdin Invs. Corp., 106 F.Supp.3d at 326-27; Fed. R. Civ. P. 17(b)(2) (providing that a corporation‘s capacity to sue or be sued is determined “by the law under which it was organized“); compare Marsh v. Rosenbloom, 499 F.3d 165, 172 (2d Cir.2007) (“Under the common law, dissolution of a corporation terminated its existence as a legal entity, thus abating all pending actions by and against it and terminating its capacity to sue or be sued.“), with N.Y. Bus. Corp. Law § 1006(a)(4) (providing that a dissolved corporation “may sue or be sued... in its corporate name“). Because we determine that Valdin lacks standing, we need not decide whether Valdin lacked the capacity to bring the instant motion.
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