*1 grants Boy- the attack and the unless during months between ninety days. a new trial within ette Boyette positive first identification her physical in 1982 and that October during torment she suffered

psychological to her need to period contributed note identify an attacker. The accelerant ability to doubt on Ehrlich’s also casts clearly perceive or remember events during her attack.8 These they happened in with the two documents combination NOBLE, Petitioner-Appellee, Casim arresting Boyette suggest long delay positive that Ehrlich did not make a identi- KELLY, Superintendent, long of her attacker until after Walter R. fication Respondent-Appellant. ab- Coupled complete attack. linking Boyette to of other evidence sence No. 00-2154. proof that he

the crime and the substantial Appeals, United States Court of state, was in a different the note and inter- Second Circuit. persuaded view sheet could well have very close jury acquit. Because Argued': Sept. 2000. Ehrlich’s depended solely case credibili- April Decided: ty, applied Kyles Appellate Division it objectively way unreasonable when analysis concluded—without —that

Boyette prejudiced. only was not Not reasonably the cumulative probable fire

impact of the accelerant note and the have in a report marshal’s resulted outcome, different see id. essentially but in the context of this n one-witness their non-disclosure seri-

ously undermines “confidence in the out-

come of the trial.” Id. at 1566. We there- fore reverse.

CONCLUSION discussed, we For the reasons we have judgment reverse the the district court to and remand to proffered expla- argument jury apparently accepted disagree 8. We with the State's merely this evidence is cumulative of other discrepancy, Calvin i.e. that nation for impeachment evidence. The other evi- Boyette underbite. The evidence in had an principally Ruiz’ concern- hand, here, question dence— ing concerns on the other description Ehrlich’s of her attacker— memory reliability and her of Ehrlich’s centered on Ehrlich’s initial statement ability to see her attackers. missing attacker was front teeth. The her *2 JACOBS, CARDAMONE, Before SACK, Judges. Circuit PER CURIAM: a writ of Noble’s ha- Casim *3 corpus challenges his conviction for beas attempted murder offenses on and related Amendment ground his Sixth rights Process were violated Compulsory state trial court ruled that alibi when the testimony would excluded because de- comply counsel failed fense procedural requiring rule advance notice of call alibi intent to witnesses. Alternative- argues his counsel’s non- ly, Noble compliance rendered his counsel’s services - constitutionally The ineffective. United District for the Southern Dis- States J.) (Sand, York granted trict of New No- corpus for a of habeas petition ble’s writ Respondent and directed either re- to retry Noble or him. See Noble v. lease (S.D.N.Y. F.Supp.2d Kelly, 89 2000). affirm the of the district judgment

court.

BACKGROUND

Familiarity with case facts the details of state criminal Noble’s forth trial as set 445-50, is assumed. Noble was convicted of New in the Court of State York, attempted for mur- County, Sullivan and various related offenses. der Noble’s challenges the for habeas relief was in- testimony that Noble exclusion Weinstein, Aid Legal L. The Soci- Philip victim was shot a bar at time the side Division, Appeals ety, Federal Defender in a car outside. York, NY, Bureau, for Petitioner- New York Criminal Law New Procedure Appellee. type. special as a treats an alibi witness govern- Mitzner, provides 250.20 District Bonnie M. Assistant Section defense, up upon the (Stephen may serve County, N.Y. ment Attorney, Sullivan a demand twenty days arraignment, after and Karen Lungen, Attorney, F. District identify any witness who Mannino, Attorney, on the defense District Assistant testify “at the time brief), intends to Respondent-Appellant. the crime trial charged judge [the commission of de- asked defense counsel to place was at some other places fendant] or why explain Yamagata was not an alibi than the scene the crime.” N.Y.Crim. witness whose should have been Proc. L. 250.20. The has eight defense pursuant noticed advance 250.20. days to respond, continuing is under a responded Defense counsel duty to in- respond circumstances and not an because witness the scene change throughout pro- tentions specified crime in the indictment cess, and risks sanction of exclusion for vicinity was the of the Around the Corner comply: failure to “If at the trial the de- Bar, Yamagata’s testimony' and that —'that fendant calls such alibi witness without place Noble was in the bar —would him at having ... served demanded notice the scene rather than furnish the alibi that *4 testimony court may exclude of such taking he was elsewhere. After the mat- relating witness to the alibi defense.” Id. advisement, ter under court adopted the The court accept retains discretion to the that, competing light view in does, testimony, grant if it but it must prosecution’s pre-trial discovery responses, government time to prepare a rebuttal. the scene of the purpose crime for the (“The § See Proc. L. N.Y.Crim. 250.20 analysis, alibi “in was front the [Around court in its may discretion receive such B]ar.” Corner As a sanction for de- testimony, so, must, it doing but before give fense counsel’s failure to notice under upon application of the people, 250.20, the court Yamagata’s excluded adjournment in days.”). not excess of three testimony. prosecution appropriately The served an request counsel, alibi upon witness Noble’s jury convicted of attempted Noble responded which counsel that no alibi in degree, murder the second two counts anticipated. witnesses were At trial and in of criminal use in of a firearm the first proceedings, prosecution habeas degree, and possession criminal weap- of a and disputed Noble have whether Steven on in degree. the second He was sen- Yamagata have should been identified chiefly 12-}é tenced two terms to 25 an alibi in response prosecu- witness to the years of imprisonment and one term of 7/6 tion’s According 250.20 demand. to the years to 15 of imprisonment, all to run prosecution’s trial, evidence at victim concurrently. appeal, On Ap- Noble’s was sitting parked car outside the pellate Division of the New York Bar,” “Around the Corner and was shot at Court did not preclu- decide whether the range close one of three assailants. sion of the was constitu- The victim and other witnesses identified error, tional because it held that if even Noble gunman. as the Following testi- were, any error thereby introduced was witness, mony of the first defense a collo- Noble, harmless. See People v. 209 A.D.2d quy ensued in which prosecution chal- 735, 736, (3d N.Y.S.2d Dep’t lenged Yamagata counsel’s intention to call 1994). The rejected court Noble’s claim witness, as a and the court what asked that his counsel was ineffective on the Yamagata say. Noble’s counsel re- ground that only Noble alleged a “simple sponded “was inside the disagreement with strategies shots, bar when and tac- he heard the he and was tics,” playing and was not pool there, or some therefore game other sufficient to and overturn the Casim was Id. playing ap- [Noble] [a] video convictions. Noble’s game, both they togeth- plication and exited for the bar leave to appeal to the New er.” York of Appeals summarily de- Noble, system mail and lack of prison counsel People v. 84 N.Y.2d nied. See timely filing with the court. See to assure 623 N.Y.S.2d 647 N.E.2d 274,108 S.Ct. 2379. id. at a writ of habeas petitioned for Noble granted court in 1997. The district corpus concluded, correctly theAs district court the trial ground writ on the equal rationale force to applies Yamagata’s testimony preclusion court’s Noble, circumstances. See Noble’s process rights compulsory violated Noble’s F.Supp.2d at 450-53. Noble’s for Amendment. See under the Sixth jail made corpus of habeas from writ Alternatively, the 454-61. at of counsel. As the without the benefit failure to court held that defense counsel’s noted, mailbox prison an alibi procedures calling for follow the variety rule has been extended to constitutionally inef- witness amounted circumstances, including administrative fil- counsel. See id. 461-63. fective Doe, ings, Tapia-Ortiz see do ground the first therefore affirm on Cir.1999) (2d curiam), (per service of not reach second. discovery responses, Upjohn see Faile v. (9th Co., Cir.1993), mo- DISCUSSION tions reconsideration under Fed. *5 Evans, 59, v. see 853 F.2d R.Civ.P. Smith I. Timeliness (3d Cir.1988), 155, 161 and motions for a I Title of Antiterrorism 33, under see new trial Fed.R.Crim.P. of 1996 Penalty Effective Death Act States, 701, No. 89 Cr. Marinez v. United (“AEDPA”), 101, § L. Pub. No. (S.D.N.Y. 51201, Feb.8, *2 1996 WL at (codified 1214, 28 1217 at U.S.C. 110 Stat. 1996). of circuits A number other have 2244), filing for imposes § a time limit petitions pro extended the rule to se for petitions. 28 U.S.C. habeas See Prunty, See Miles v. 187 habeas relief. 2244(d)(1). AEDPA was enacted (9th Cir.1999); 1104, n. 2 1106-07 & F.3d 1996; 24, prisoners whose convic April Bowersox, 1068, 172 F.3d 1077 Nichols v. had one tions became final before date (8th Cir.1999) (en banc); Jones v. Ber- 24, file. April 1997—to See year - until (7th trand, 499, Cir.1999); 171 F.3d 502 (2d 97, Artuz, 103 Ross v. 150 F.3d Cir. Boone, 1223, n. v. 150 F.3d 1226 3 Hoggro 1998). final Noble’s conviction became (10th Cir.1998); Cain, 149 Spotville v. 30, 1995, appeal January when leave to to Morton, (5th Cir.1998); 374, v. Burns 378 Appeals was York Court of de New (3d Cir.1998); 109, In re 134 F.3d 113 peti court his nied. The district received (6th Cir.1997) Sims, 45, (per 111 F.3d 47 1997, deadline; 22, July after the tion on curiam). Moreover, has this Court ob- contends that before time but Noble prisoner proceed- is “[w]hen served petition in the expired placed he had generally ... pro se federal courts ing mailing. authorities for prison hands of the or her for habeas consider his of date it have filed as corpus held Hous to been 2379, Lack, prison forwarding officials for given v. to ton 487 U.S. Stinson, (1988), v. prisoner clerk.” Adeline 101 L.Ed.2d 245 Cir.2000) (2d (per n. 1 the time limit for 206 F.3d appearing pro se satisfies Walker, curiam); v. he Nelson filing appeal if delivers the a notice of cf. (2d Cir.1997) (holding that the 832 n. prison notice to officials within time delivery is the prison officials “prison rule is date of specified. This mailbox” purposes determining for of litigant’s on relevant date justified dependence Constitutionality B. appeal whether notice was filed before AEDPA). the enactment assume, We as did the district court, Yamagata’s anticipated testimo We conclude that the court prop- ny qualifies as alibi under prison erly extended mailbox rule to § 250.20. The state court on that ruling petitions corpus. writs habeas an interpretation score law that is state we will not Estelle review. See II. Preclusion McGuire, 62, 67-68, U.S. S.Ct. (1991) (“[I]t 475, 116 L.Ed.2d 385 is not A. Standard Review province of a federal habeas court to AEDPA, Under federal reexamine state-court determinations on power courts lack a writ under 28 questions.”); Jeffers, state-law Lewis v. § 2254 unless the court ruling U.S.C. state 764, 780, U.S. S.Ct. on the federal constitutional issue is either (“Because (1990) L.Ed.2d 606 federal ha “contrary clearly to ... established Feder beas relief not corpus does lie for errors of al or an law” “involved appli unreasonable ... ... law federal habeas review clearly cation of ... established Federal limited, most, determining whether 2254(d)(1); law.” See id. see also finding arbitrary court’s was so 362, 412, Taylor, Williams v. 120 or capricious as to constitute indepen process Eighth dent due or Amendment however, recently held, AEDPA def violation.”). The state court’s determina compelled only erence is when the claim tion an alibi witness “adjudicated has been on the merits” in arbitrary capricious.2 was not In or *6 court, and further held that if a case, neither party challenged has state court a case citing decides without to finding appeal. law, “pre-AEDPA federal the standard of The district it court held that was applies. review” See Washington v. Schri- constitutional error Yamagata’s to exclude ver, (2d Cir.2001). 101, 240 F.3d 107-10 It testimony finding absent a that defense is not essential to determine whether counsel’s non-compliance with 250.20 here, applies AEDPA as our conclusion is agree. was willful. We the same under either of standard review.1

The Compulso Sixth Amendment’s decision, ry Clause, the district court’s applicable Process to As state we review a decision to habeas relief criminal proceedings through the Due Pro Batista, de novo. See Smalls v. cess of Clause the Fourteenth Amend (2d Cir.1999). 272, 277 ment, Texas, Washington see 388 U.S. decision, 1. predates The court's which attempted could have committed the murder Washington, applies both Williams and the under these circumstances: the witnesses tes- 2254, “contrary portion holding to” of that tified that Noble shot the victim from close inquire the trial court’s failure to into range, standing just outside the victim's car. whether defense counsel's behavior was will- testimony arguably places Yamagata This application ful amounted to “wrong the the within the definition anof alibi witness. See standard.” 89 at 461. (7th 1999) (de- Dictionary Black's Law 72 ed. fining "alibi” as defense based on the "[a] permitted, Yamagata 2. If would have testified physical impossibility guilt by of a defendant’s bar, perpetrator that the was inside the play- placing a the defendant in than location other ing game shooting a video when the occurred. time.”). the scene crime at the relevant Nothing in the record indicates that Noble

99 1920, trial. If 14, witnesses in advance of that L.Ed.2d 87 S.Ct. the (1967), explanation reveals that omission “the shall provides that accused by a and motivated desire to have enjoy compulsory ... right willful advantage obtain a tactical would witnesses in fa obtaining his process for ” minimize the effectiveness cross-ex- Tay .... amend. VI. In vor Const. U.S. ability amination to adduce re- 400, 646, and Illinois, lor v. 484 U.S. S.Ct. evidence, entirely buttal it would be (1988), Supreme Court 98 L.Ed.2d purposes consistent with the excluding testimony upheld an order Compúlsory simply Process Clause as a sanction for coun defense witness testimony. exclude the witness’ (i) noncomplianee discovery sel’s notice of intention to required rule 415, (emphasis Id. at 108 S.Ct. 646 add- (ii) witness, misleading call and ed). The Court concluded con- knowledge of wit concerning his Taylor’s duct of counsel amounted to Although confirming ness’s whereabouts. “willful misconduct” for which exclusion is are more fundamental rights “[f]ew of whether appropriate, “[r]egardless prej- present than accused to wit that of an to the could have prosecution udice been defense,” id. at nesses his own avoided.” Id. at 108 S.Ct. 646. the Court ruled courts must S.Ct. pre-Taylor In a this Court ruled right against State’s inter balance that alibi is so critical that in an orderly process “[T]he est trial: notwithstanding proce- cannot be excluded party if either had an a shambles here, defaults, where, as coun- dural even time and con right absolute control expla- “offered no reasonable sel the court testimony,” id. at tent his witnesses’ non-compliance. nation” for Escalera v. 411, 108 the ease with S.Ct. “Given (2d Cir.1987). Coombe, fabricated, which an can be alibi Only prej- of substantial “demonstration protecting against itself State’s interest case” was prosecution’s udice defense is both obvious eleventh-hour sufficient to warrant exclusion of deemed 17, 108 412 n. legitimate.” Id. at testimony. Id. at 194. Florida, (quoting Williams v. vacated Court’s' 78, 81, 26 L.Ed.2d *7 for Escalera decision and remanded recon- omitted). (1970)) (internal marks quotation Taylor. keeping in with See sideration Escalera, declined to issue Court Coombe for This comprehensive guidelines this balanc Court, turn, matter ing process, stated that trial court in the to the but remanded fundamental inquiry should “the charac court for further consistent consider district to right Taylor: ter of offer the the defendant’s with favor,” in his “[t]he of witnesses judge] did note in his district court [The adversary process,” integrity of the “the attorney’s opinion “ap- that the below interest in the fair and efficient adminis least, or, at the ab- parent bad faith — potential prej tration and “the justice,” a good [wa]s sence of evident” excuse— truth-determining udice to function of the give in the to notice of properly failure trial at process.” the Id. witness]. But [an his intent to call 646. The then held: enough. The this alone not absence is necessarily good is not com- may certainly

A on an excuse judge trial insist conduct and it mensurate with “willful” explanation party’s for a failure to com- identify readily not clear whether Escalera’s ply request to his or her with a was, fact, attorney the that by agree motivated a We with district court ruling satisfy a tactical not advantage. desire to obtain does the constitu- tional standard. (2d Coombe, Escalera v. Cir.1988) curiam) (per (quoting Escalera v. Remedy C. (E.D.N.Y. Coombe, F.Supp. that Having concluded the consti 1987)) (citations omitted). satisfied, tutional was not the standard agree district court the court conducted its own review case, under the circumstances the granted the state trial and writ record the state trial court could have used less oner- finding on the basis of its that the defense (such adjournment) ous an sanctions to attorney’s provide timely failure notice prosecution, minimize to the prejudice Noble, of alibi was in fact willful. not See and that a finding of willfulness was there- F.Supp.2d at 457. The argues required fore justify the exclusion of however, that, appeal, the first time on if Yamagata’s testimony. See else, nothing the district court should (discussing at 457 prosecu- the required evidentiary hearing to hold an familiarity tion’s with the locale of the alibi expand the and record consider additional and ability impeachment its to obtain evi- question evidence on the of willfulness. against dence Yamagata).3 The state trial particular thinkWe that the circumstances court, however, no finding made of willful- justify of this case of the writ argument,

ness. hearing After the trial hearing. without such a court ruled: finding The district court’s de- preclude

This Court will [Yamagata attorney’s provide fense failure to a notice giving testimony with respect from] of alibi was a result of “his misinterpreta- the alibi. The record indicates that no governing tion of the and discovery rules” notice served defense that cannot strategic “be attributed to a they an produce intended to alibi wit- choice,” Noble, F.Supp.2d. has ness. People The first were strong support in the pro- record of the advised of intention their to call this ceedings First, court. witness was after close of the Peo- colloquy between trial court ple’s yesterday. case The record fur- attorney defense indicates that the attor- ther indicates ... scene of this ney thought not crime was in front of the Around the alibi witness because the indictment identi- Corner being Bar. This fied the scene of the crime as in the “vicin- testimony of ity” this witness the defen- Bar, Around Corner which dant was inside the bar at the attorney thought time of included the area *8 the shooting clearly is testimony]. [alibi inside That colloquy the bar. re- also The Court is that attorney not satisfied there is vealed that thought the the that an acceptable for not making reason bar’s proximity close to the shooting meant application sooner. Yamagata’s that the testimony was not an whether, case, present 3. We therefore need not decide only we need conclude that extent, finding to what prejudice a of prosecution willfulness is where the can required ease, every in case. See United States v. minimized with a relative trial court's Portela, 687, (1st Cir.), 705 & n. sup- 16 exclusion of alibi must be cert. Villaman-Rodriguez ported denied sub by finding degree nom. some of willful- States, 917, 273, United ap- ness in defense counsel's violation of the purposes plicable For discovery of the rules. the court’s decision in that case lawyer the to re- If the failure of alibi. in request preceded was thus the Court’s decision alibi witness spond to the mistake, Taylor not on ambiguous it was course and was therefore simply a Escalera, question the of willfulness. See willful. case, contrast, In by 852 F.2d at 48. Second, nothing itself said the court Judge fully task Sand was aware that his attorney that it the had suggest thought was to whether counsel determine defense willfully or in faith. The court bad acted willfully, findings acted and his on that reason for “acceptable” found no simply Noble, F.Supp.2d are score clear. See a notice of attorney’s provide failure to hold an at 462-63. His decision not to (“The Escalera, at 48 F.2d alibi. See when not evidentiary hearing, good necessarily is not absence of a excuse only request hearing such a but failed conduct.”). commensurate ‘willful’ expand opposed attempt petitioner’s repeated Third, contrary state’s to the record, justified by record and was 18, 22, 27, assertions, Appellant’s Br. at see not an of discretion. did constitute abuse Yamagata surprise not a was (2d Smith, See Nieblas v. F.3d witness; pre-trial was on the defense’s he Cir.1999) (a district court has “broad” dis- and his was in witness list name mentioned cretion “to hear evi- whether additional three times. This court in that connection state”) (citing dence on behalf of finding that strong against evidence cases). a re- therefore conclude that We non-compliance willful. was unnecessary.4 mand is of what Finally, proffer state’s bearing on has little prove remand D. Error Harmless on the issue of willfulness. Appellate Division concluded we in Although remanded Escalera fail by that error introduced counsel’s willfulness, evidentiary we hearing harm properly ure to call that because we concluded the rec did so significant in of the otherwise light less “permit[ apply not us to ] ord did evidence Noble. The district against Taylor.'” in standards enunciated persuad disagreed, holding are “[w]e case, however, light at In this “in F.2d 48. ed, thorough after a examination - - - an expla includes which record that the exclusion record in this by possibility counsel negating nation did Yamagata’s testimony have a substan choice,” strategic omission was [his] determining injurious tial and effect required.” ... remand is

we conclude “[n]o jury’s verdict.” States, wn v. United Bro sup 458. Our own review the record (2d Cir.1999). 109, 110 conclusion, for court’s ports the district substantially the same reasons also note that the remand Escal- district court has articulated.5 particularly appropriate era was because be- apply determination we the state trial to our harmlessness Because conclude on the "adjudicated cause harmlessness error in ex- court committed constitutional Appellate It is well- Division. Yamagata's testimony, merits” cluding we decline to review, appellate settled direct a state petitioner’s that on address the alternative claim *9 may error harmless court find constitutional constitutionally ineffective he received assis- beyond only if harmless a reasonable it is tance of counsel. Chapman California, U.S. doubt. v. 386 See 824, 18, 24, 17 L.Ed.2d 705 pre-AEDPA standard 87 S.Ct. We note AEDPA, passage habeas Prior to federal part discussed II.A above does not review 102 bearing little the issue of willful- has

CONCLUSION Maj. Op. at 100-101. ness.” reasons, foregoing For the affirm the we I read differently. the record Noble’s judgment of the district court. The man- an experienced counsel was criminal de- date shall forthwith. issue lawyer presumed fense and can be to un- who is an witness. derstand At the JACOBS, Judge, dissenting: Circuit time, good same counsel had reason to point, As to all but one I concur that Yamagata’s testimony believe was of a majority I opinion. agree Thus that No- only kind would be effective if the (Part I), ble’s timely habeas government was and surprised lacked an necessary it is not to determine to it. opportunity prepare for And Noble’s (Part II.A), that, whether AEDPA applies engineer counsel had the to means Illinois, 400, Taylor under v. 484 U.S. 108 Noble’s surprise: counsel also counsel 646, (1988), S.Ct. L.Ed.2d Yamagata, 98 798 Yamagata to and and Noble court failing erred in to whether prison days. determine friends from were One could defense non-compliance counsel’s Yamagata’s find counsel withheld (Part II.B), 250.20 was willful and that until name such time as could (Part II.D). this failure was not longer harmless no govern- interviewed (as Yamagata’s lawyer, ment Noble’s coun- I respectfully dissent from Part II.C that), fully sel could see to or investigated. only. (“Remedy”) Rather than affirm the In I think that the circumstances writ, grant of I remand sufficiently are ambiguous justify fact- a hearing court for to determine Coombe, See finding. Escalera v. 852 F.2d whether defense counsel’s conduct was (2d Cir.1988) 45, (remanding 48-49 habeas willful, was, if it because the exclusion of petition involving exclusion of alibi witness the testimony was not constitutional error. testimony, holding “in the absence of opinion The majority “strong sup- sees other error requiring proceed- state court port in ascribing the record” for ings, counsel’s it appropriate [is] the district non-compliance §with 250.20 to “his mis- hold its evidentiary own hear- interpretation Illinois, the governing discovery ing.”). Taylor 400, v. 484 U.S. Cf. rules,” posits 17, 646, and further that “the state’s 412 108 n. S.Ct. 98 L.Ed.2d 798 proffer (1988) prove of what would (noting on remand “the ease with which an alibi reviewing (2000) ); courts determi (adhering harmlessness to Brecht employed demanding nations a standard Gibson, less 1298, (10th Hale 227 F.3d 1325 Chapman, asking than whether error Cir.2000) (same); Kemna, Whitmore v. 213 injurious 'had substantial effect or in 431, (8th Cir.2000) (expressing F.3d 433 skep- ” determining fluence in jury's verdict.' Brecht, vitality about ticism but declin- Abrahamson, 619, 637, Brecht v. 507 U.S. issue); Cowan, ing to decide the Anderson v. (1993) (quoting L.Ed.2d (7th Cir.2000) (noting 898 n. 3 States, 750, 776, Kotteakos v. United it). declining the issue but to decide (1946)). 66 S.Ct. 90 L.Ed. 1557 After Appellate apply Division in case failed AEDPA, question arises whether federal Chapman, holding that the error was harm- habeas apply court should continue to Brecht overwhelming "in view less evidence of or determine instead whether the state court's guilt.” A.D.2d to, "contrary decision was or involved an N.Y.S.2d at 124. we Because conclude that application Chapman. unreasonable of” see, the error was not 2254(d)(1); possi- harmless under both U.S.C. e.g., Maurino v.

Johnson, review, Cir.), (6th ble express standards we decline to cert. - denied, -, U.S. apply. view to which standard should *10 v. (quoting Williams be fabricated” can

Florida, (1970))). mandated, new trial we Before a fact has in been assure there should A remand for fact- error. constitutional unnecessary involve- finding may avoid judiciary crimi- in state ment the federal proceedings. nal RELATIONS LABOR NATIONAL BOARD, Petitioner, CO., T TERMINAL PACKAGING G & INC., Sprout, Inc., Chain Truck- Mr. Inc., Tray Wrap, Inc., ing, and Slow Pack, Inc., Respondents.

No. 00-4095. Appeals, United States Court Second Circuit. Argued Dec. 2000. March Decided