Ramchair v. Conway

08-2004-pr
Ramchair v. Conway

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term, 2008

4 (Argued: June 4, 2009; Remanded: June 30, 2009; Resubmitted to

5 Panel: February 12, 2010; Decided: April 2, 2010)

6 Docket No. 08-2004-pr

7 -------------------------------------

8 RACKY RAMCHAIR,

9 Petitioner-Appellee,

10 - v -

11 JAMES CONWAY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY,

12 Respondent-Appellant.

13 -------------------------------------

14 Before: WINTER, CALABRESI, and SACK, Circuit Judges.

15 Appeal from a judgment of the United States District

16 Court for the Eastern District of New York (John Gleeson, Judge)

17 granting a writ of habeas corpus to the petitioner on the grounds

18 of ineffective assistance of state appellate counsel, and

19 ordering a new trial. Pursuant to a Jacobson remand, the

20 district court solicited testimony from appellate counsel, which

21 supported the court's finding of ineffectiveness, and clarified

22 its decision to order a new trial rather than a new state-court

23 appeal.

24 Affirmed.
1 FRANK HANDELMAN, Law Office of Frank
2 Handelman, New York, NY, for Appellee.

3 ROSEANN B. MACKECHNIE, Deputy Solicitor
4 General for Criminal Matters, for Andrew
5 M. Cuomo, Attorney General, New York,
6 NY, for Appellant.

7 Sack, Circuit Judge:

8 This case has returned to us following a remand to the

9 United States District Court for the Eastern District of New York

10 (John Gleeson, Judge) pursuant to United States v. Jacobson, 15

11 F.3d 19, 21-22 (2d Cir. 1994). We sought from the district court

12 additional findings of fact and conclusions of law supporting its

13 order granting Petitioner-Appellee Racky Ramchair's petition for

14 a writ of habeas corpus under 28 U.S.C. § 2254, and a

15 clarification of its decision to grant Ramchair a new trial,

16 rather than a new appeal. Ramchair v. Conway, 335 F. App'x 122,

17 124 (2d Cir. 2009) (summary order) ("Ramchair III").

18 At trial, Ramchair's counsel had moved for a mistrial

19 after the prosecutor elicited testimony that counsel had been

20 present at the lineup procedure during which Ramchair was

21 identified as the perpetrator of the crime with which he was

22 charged, but that counsel had not objected to the lineup. Before

23 moving for a mistrial, trial counsel had requested and been

24 denied permission to testify in rebuttal to the testimony by way

25 of explanation as to why he may not have objected. The motion

26 for a mistrial was denied, and Ramchair was ultimately convicted

27 of first- and second-degree robbery. The district court

28 concluded that Ramchair had been denied effective assistance of

2
1 appellate counsel because appellate counsel had failed to claim

2 on appeal that the trial court had erred in denying Ramchair's

3 motion for a mistrial.

4 Respondent-Appellant James Conway, Superintendent of

5 Attica Correctional Facility (the "State"), appealed from the

6 grant of the writ and the grant of a new trial. We remanded for

7 the district court to solicit evidence from appellate counsel as

8 to her decision not to raise the mistrial claim, and for the

9 district court to set forth its reasons for granting a new trial

10 rather than a new appeal.

11 After holding an evidentiary hearing at which appellate

12 counsel testified, the district court issued an order clarifying

13 its grant of the writ and its grant of a new trial.

14 In light of the testimony elicited at the hearing, we

15 conclude that the district court's decision to grant the writ was

16 correct. Appellate counsel's failure to raise the mistrial claim

17 was not a sound strategic decision, but a mistake based on

18 counsel's misunderstanding that the mistrial claim, which trial

19 counsel explicitly made, had not been preserved. We agree with

20 the district court that this mistake rose to the level of

21 constitutional ineffectiveness, and that the New York Court of

22 Appeals' decision to the contrary was an unreasonable application

23 of clearly established Supreme Court precedent. We also

24 conclude, in light of the reasons provided by the district court,

25 that its choice of remedy -- a new trial -- was not an abuse of

26 discretion.

3
1 We therefore affirm.

2 BACKGROUND

3 The facts of this case, largely undisputed, have been

4 set forth accurately and in painstaking detail by the district

5 court in its first opinion in this case.1 See Ramchair v.

6 Conway, No. 04 Civ. 4241, 2005 WL 2786975, 2005 U.S. Dist. LEXIS

7 25852 (E.D.N.Y. Oct. 26, 2005) ("Ramchair I"); see also Ramchair

8 v. Conway, 671 F. Supp. 2d 365 (E.D.N.Y. 2008) ("Ramchair II");

9 Ramchair v. Conway, 671 F. Supp. 2d 371 (E.D.N.Y. 2009)

10 ("Ramchair IV"). We rehearse them here only insofar as we think

11 it necessary to explain our resolution of this appeal.

12 Facts and Procedural History

13 In June 1995, Ramchair was charged with the robbery of

14 a cabdriver in Queens after being identified by the victim in a

15 lineup approximately seven weeks after the robbery. The victim

16 had told the police that one of the two robbers was Guyanese

17 Indian, which is, indeed, Ramchair's ethnicity. Of the six

18 people in the lineup, at least four were not Guyanese, and at

19 least two, unlike Ramchair, had no facial hair.2 Ramchair's

20 appointed defense counsel, Jonathan T. Latimer, III, was present

21 at the lineup.

22 Ramchair later moved to suppress the identification on

23 the ground that the lineup was unduly suggestive. Detective

1
That opinion is not reported in the Federal Supplement.
2
The police provided carbon paper for those without facial
hair to rub on their faces.

4
1 Robert Winnik, the police officer who was present at the lineup,

2 testified to its circumstances, including the presence of an

3 attorney -- Latimer -- for Ramchair. At the hearing on the

4 motion, the prosecutor did not elicit information about Latimer's

5 conduct during the lineup. The motion to suppress was denied and

6 the case proceeded to trial in Supreme Court, Queens County.

7 During his first trial, Ramchair was assaulted in jail.

8 The court therefore declared a mistrial.

9 Ramchair's second trial revolved around the disputed

10 lineup identification. It also ended in a mistrial, over defense

11 objection, when one of the jurors was hospitalized during

12 deliberations. During the trial, the prosecutor had not sought

13 to elicit testimony regarding Latimer's conduct during the

14 lineup. Indeed, Detective Winnik testified that he could not

15 recall who represented Ramchair at the lineup.

16 At Ramchair's third trial, defense counsel Latimer

17 again disputed the fairness of the lineup. For the first time,

18 Winnik identified Latimer as having been present at the lineup.

19 The prosecution then sought to elicit testimony from the

20 detective about whether Latimer had objected to the lineup at the

21 time. Latimer objected, arguing that the prosecution was making

22 him a witness. The court overruled the objection and Winnik

23 testified that Latimer, although present, had not objected to the

24 lineup.3

3
Latimer cannot recall whether he voiced objections at the
lineup.

5
1 Latimer then requested permission to testify in

2 rebuttal to Winnik's testimony, arguing that the prosecution's

3 examination had improperly made him a witness against his own

4 client. The court denied the request, reasoning that Latimer

5 should have known in advance that he wished to testify to the

6 improprieties of the lineup, and thus should have withdrawn from

7 representing Ramchair before trial. Latimer attempted to explain

8 that he had not planned to testify to any such improprieties, but

9 now thought it necessary to rebut the implication that he had, by

10 his asserted silence at the time, conceded that the lineup was

11 fair. The trial court again denied the request, instructing

12 Latimer that his views about the lineup were not relevant and

13 that in any event, there had been no testimony as to his views of

14 its fairness.

15 After Winnik's testimony, Latimer moved for a mistrial:

16 I have a motion for a mistrial. I think it
17 is completely improper to allow the
18 prosecution to imply through their
19 questioning of this witness that I somehow
20 condoned the line-up and contend that is fair
21 and then not allow me to testify myself or to
22 put on that information in the contrary with
23 respect to that issue.

24 Ramchair I, 2005 WL 2786975 at *6, 2005 U.S. Dist. LEXIS 25852 at

25 *15-*16. The motion was denied. The prosecutor then explicitly

26 relied upon Winnik's testimony as to Latimer's conduct at the

27 lineup in her summation.

6
1 Ramchair was convicted and sentenced to concurrent

2 terms of imprisonment of 10 to 20 years on the first-degree

3 conviction and 5 to 10 years on the second-degree conviction.

4 Ramchair appealed. He was represented by new counsel

5 on appeal. Eventually -- it took five years for Ramchair's

6 lawyers to perfect Ramchair's appeal -- appellate counsel raised

7 two grounds for reversal.

8 First, counsel argued that Ramchair's third trial

9 violated his right not to be placed in double jeopardy. The New

10 York Supreme Court, Appellate Division, Second Department,

11 rejected this argument because, in its view, the declaration of a

12 mistrial in Ramchair's second trial had become "manifestly

13 necessary" when one of the jurors had been hospitalized during

14 deliberations, after the alternate jurors had been dismissed.

15 People v. Ramchair, 308 A.D.2d 601, 602, 764 N.Y.S.2d 725, 726

16 (2d Dep't 2003).

17 Second, appellate counsel argued that Ramchair's

18 constitutional right to present a defense was violated by the

19 trial court's denial of Latimer's request to testify. The court

20 rejected this argument too, citing the provision of the New York

21 Code of Professional Responsibility, and related cases,

22 prohibiting an advocate from acting as a witness on a significant

23 issue of fact, subject to limited exceptions. The court reasoned

24 that "since the defense counsel never requested to withdraw as

25 the defendant's attorney so that he could be the defendant's

26 witness," the trial court did not err in denying defense counsel

7
1 permission to testify, because allowing him to testify would turn

2 him into an advocate-witness. Id., 308 A.D.2d at 602, 764

3 N.Y.S.2d at 726-27. Appellate counsel did not, however, raise

4 before the Appellate Division the issue of the trial court's

5 refusal to grant a mistrial upon Ramchair's trial counsel's

6 motion seeking one.

7 After leave to appeal to the Court of Appeals was

8 denied, Ramchair filed, pro se, for habeas relief in the United

9 States District Court for the Eastern District of New York (John

10 Gleeson, Judge), raising the same claims that were rejected on

11 direct appeal. The district court concluded that while those

12 claims did not warrant habeas relief, a claim of ineffective

13 assistance of appellate counsel raised by court-appointed habeas

14 counsel might have been meritorious. Ramchair I, 2005 WL 2786975

15 at *16, 2005 U.S. Dist. LEXIS 25852 at *50-*51. It therefore

16 held Ramchair's petition in abeyance pending the exhaustion of

17 that claim in state court. Id., 2005 WL 2786975 at *18, 2005

18 U.S. Dist. LEXIS 25852 at *54.

19 Ramchair then sought to exhaust by filing a petition

20 for a writ of error coram nobis with the Appellate Division,

21 arguing that appellate counsel had been ineffective for failing

22 to raise the claim that the trial court had erred in denying

23 defense counsel's motion for a mistrial. The Appellate Division

24 denied the application without comment, see People v. Ramchair,

25 27 A.D.3d 668, 810 N.Y.S.2d 685 (2d Dep't 2006), and the Court of

26 Appeals affirmed, People v. Ramchair, 8 N.Y.3d 313, 316, 864

8
1 N.E.2d 1288, 1290 (2007). The Court of Appeals reasoned that

2 appellate counsel's brief to the Appellate Division had been

3 "comprehensive," and the arguments raised therein "strong." Id.

4 The court concluded that "appellate counsel might have determined

5 as a matter of reasonable appellate strategy that there was a

6 greater likelihood of success pursuing the right to present a

7 defense argument, rather than focusing on the mistrial

8 application." Id., 8 N.Y.3d at 317, 864 N.E.2d at 1291. The

9 court" [could] not say from this record that there was no solid

10 legal basis for appellate counsel's strategy." Id.

11 After the district court resumed and completed its

12 consideration of Ramchair's habeas petition, the court granted

13 it. Ramchair II, 671 F. Supp. 2d at 371. The court concluded

14 that Ramchair's trial had been unfair because the prosecution's

15 "surprise tactic made Latimer an essential witness to the central

16 factual dispute in the case: whether or not [the victim's]

17 identification of Ramchair as the Guyanese Indian perpetrator

18 [was] the result of a suggestive line-up." Id. at 367. The

19 court was of the view that appellate counsel had correctly

20 identified the unfairness, but had sought relief -- allowing

21 Latimer to testify at trial -- that had minimal support in the

22 law, while failing to argue for a mistrial, which "a reasonable

23 appellate court would have granted" and which would have allowed

24 Latimer to testify at a new trial, after Ramchair had obtained

25 new counsel. Id. at 370-71. The district court determined that

26 appellate counsel's failure to raise the mistrial claim was

9
1 constitutionally ineffective, and the Court of Appeals'

2 conclusion to the contrary was unreasonable, because there was no

3 "conceiv[able] . . . strategy that would explain the failure to

4 request the proper relief." Id. at 370. The court directed the

5 State to release Ramchair within 45 days or declare its intention

6 within that time to retry him.

7 The State appealed from the grant of the writ and the

8 grant of a new trial. We remanded under the procedures

9 originally set forth in Jacobson, 15 F.3d at 21-22, under which a

10 case is returned to the district court for it to address specific

11 issues and then returned to the same panel of this Court for

12 disposition of the appeal. Ramchair III, 335 F. App'x at 124.

13 We instructed the district court to conduct an evidentiary

14 hearing to solicit testimony from appellate counsel as to whether

15 there was a strategic reason for not raising the mistrial claim,

16 and to set forth its reasons for awarding a new trial rather than

17 a new state-court appeal. Id.

18 On remand, the district court conducted an evidentiary

19 hearing. Appellate counsel testified that she did not think that

20 Latimer's motion for a mistrial preserved a claim that a mistrial

21 should have been granted for the purpose of enabling new counsel

22 to be appointed for Ramchair, thereby allowing Latimer to testify

23 about the lineup. Appellate counsel was under the mistaken

24 impression that the mistrial motion only preserved the claim that

25 the trial court erred in denying Latimer's request to testify at

26 the third trial. Evidentiary Hr'g Tr. 24, 46 (Sept. 30, 2009),

10
1 appended to Appellant's Ltr. Br. (Jan. 22, 2010) ("Tr. _"). She

2 reasoned that the mistrial motion "was not framed as so [Latimer]

3 can be relieved as counsel and be available to testify at another

4 trial." Tr. 25. She also reasoned that Latimer would not have

5 wanted a new trial because a fourth trial "would . . . [not be]

6 in the interest of judicial economy." Tr. 23. She further

7 testified that she considered the mistrial claim, had it been

8 preserved, and the claim that the trial court erred in refusing

9 Latimer permission to testify at the third trial, to be equally

10 strong arguments each of which could only succeed if the

11 Appellate Division "agree[d] with the issue that the [trial]

12 court erred in not allowing counsel to testify." Tr. 25.

13 Following the hearing, the district court issued an

14 order reaffirming and clarifying its grant of habeas relief and a

15 new trial. Ramchair IV, 671 F. Supp. 2d 371. The court

16 concluded that appellate counsel's failure to raise the mistrial

17 claim was not the product of sound strategy, but a mistake that

18 rose to the level of constitutional ineffectiveness, and that the

19 New York Court of Appeals had applied Supreme Court precedent

20 unreasonably in deciding otherwise. Id.

21 In explaining its decision to grant a new trial rather

22 than a new appeal in state court, the court pointed out the

23 exceptionally long delay that Ramchair has endured -– more than

24 twelve and one-half years –- since his conviction, during which

25 time he has been incarcerated, without having the issue of the

26 constitutional propriety of his conviction finally determined.

11
1 Id. at 384-85. It also noted that the New York Court of Appeals

2 had already expressed a "dim view" of the mistrial claim in its

3 denial of Ramchair's application for a writ of error coram nobis,

4 but that it thought the argument that he was due a new trial was

5 "unassailable." Id. at 384.

6 The case has now been returned to this panel pursuant

7 to Jacobson.

8 DISCUSSION

9 I. Standard of Review

10 "We review a district court's grant or denial of habeas

11 corpus de novo, and the underlying findings of fact for clear

12 error." Rubin v. Garvin, 544 F.3d 461, 467 (2d Cir. 2008). "We

13 review the district court's choice of [a habeas] remedy . . . for

14 an abuse of discretion." United States v. Gordon, 156 F.3d 376,

15 381 (2d Cir. 1998) (28 U.S.C. § 2255 petition); accord Douglas v.

16 Workman, 560 F.3d 1156, 1176 (10th Cir. 2009) (per curiam)

17 (section 2254 petition).

18 II. Analysis

19 A. Standard for Habeas Relief Based on Ineffective Assistance of
20 Counsel

21 "Under the deferential standard of review established

22 by the Antiterrorism and Effective Death Penalty Act of 1996

23 (AEDPA), where the petitioner's claim 'was adjudicated on the

24 merits in State court proceedings,' as here, we may only grant

25 habeas relief if the state court's adjudication 'was contrary to,

26 or involved an unreasonable application of, clearly established

12
1 Federal law as determined by the Supreme Court of the United

2 States,' or 'was based upon an unreasonable determination of the

3 facts in light of the evidence presented.'" Palacios v. Burge,

4 589 F.3d 556, 561 (2d Cir. 2009) (quoting 28 U.S.C. § 2254(d)).

5 "We have held that in light of Strickland v.

6 Washington, 466 U.S. 668[ ] (1984), a Sixth Amendment ineffective

7 assistance of counsel claim necessarily invokes federal law that

8 has been 'clearly established' by the Supreme Court within the

9 meaning of AEDPA." Mosby v. Senkowski, 470 F.3d 515, 518-19 (2d

10 Cir. 2006) (internal quotation marks omitted). "[T]o establish

11 ineffective assistance of appellate counsel, [petitioner] must

12 show that 'counsel's representation fell below an objective

13 standard of reasonableness,' and that 'there is a reasonable

14 probability that, but for counsel's unprofessional errors, the

15 result of the proceeding would have been different." Forbes v.

16 United States, 574 F.3d 101, 106 (2d Cir. 2009) (per curiam)

17 (quoting Strickland, 466 U.S. at 688, 694).

18 In attempting to demonstrate that appellate
19 counsel's failure to raise a state claim
20 constitutes deficient performance, it is not
21 sufficient for the habeas petitioner to show
22 merely that counsel omitted a nonfrivolous
23 argument, for counsel does not have a duty to
24 advance every nonfrivolous argument that
25 could be made. However, a petitioner may
26 establish constitutionally inadequate
27 performance if he shows that counsel omitted
28 significant and obvious issues while pursuing
29 issues that were clearly and significantly
30 weaker.

31 Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (internal

32 citation omitted).

13
1 B. Ramchair Was Denied a Fair Trial

2 "The right to a fair trial[] [is] guaranteed to state

3 criminal defendants by the Due Process Clause of the Fourteenth

4 Amendment . . . ." Cone v. Bell, 129 S. Ct. 1769, 1772 (2009).

5 While "[t]he Constitution guarantees a fair trial through the Due

6 Process Clauses, . . . it defines the basic elements of a fair

7 trial largely through the several provisions of the Sixth

8 Amendment." United States v. Gonzalez-Lopez, 548 U.S. 140, 146

9 (2006) (internal quotation marks omitted). "The right of an

10 accused in a criminal trial to due process is, in essence, the

11 right to a fair opportunity to defend against the State's

12 accusations. The rights to confront and cross-examine witnesses

13 and to call witnesses in one's own behalf have long been

14 recognized as essential to due process." Chambers v.

15 Mississippi, 410 U.S. 284, 294 (1973). "Few rights are more

16 fundamental than that of an accused to present witnesses in his

17 own defense." Id. at 302.

18 Ramchair was denied the opportunity to present a

19 crucial witness in his own defense in connection with the central

20 issue in his case -- the fairness of the lineup which was the

21 sole basis for his identification as the perpetrator of the crime

22 with which he was charged. The need for that witness's testimony

23 did not arise until, in the third trial but for the first time,

24 the prosecutor elicited testimony from Detective Winnik to the

25 effect that trial defense counsel, Latimer, who was present at

14
1 the lineup, did not object to it at the time. The clear

2 implication was that Latimer conceded that the lineup was fair.

3 Because the trial court did not grant a new trial at which

4 Latimer could rebut this testimony as a witness, rather than

5 serve as defense counsel, Ramchair was deprived of the right to

6 present a witness essential to his case.4

7 The state trial court's insistence that the testimony

8 had not implicated Latimer's opinion was mistaken -- that was the

9 plain purpose and likely effect of the testimony. The trial

10 court's statement that Latimer's opinion of the fairness of the

11 lineup was not relevant was also mistaken: The jury could

12 reasonably infer that if the counsel for the defendant thought

13 the lineup was fair, it must have been. Ramchair's right to a

14 fair trial required that he have the opportunity to rebut the

15 detective's testimony by presenting his own witnesses as to

16 Latimer's opinion of the fairness of the lineup. The only such

17 witness was Latimer himself.

18 Because the prosecution elicited the testimony at issue

19 for the first time at Ramchair's third trial, the trial court was

20 mistaken when it faulted defense counsel for not anticipating the

21 need to testify before that trial began and withdrawing in favor

22 of alternative counsel. Indeed, we think it was likely incumbent

23 upon the prosecutor under these circumstances to inform the court

4
As explained below, it was not feasible under the New
York Code of Professional Responsibility for Latimer to testify
at the third trial, because he was acting as Ramchair's lawyer.

15
1 of its plan to elicit the testimony at issue, because the

2 prosecutor had to know that it would likely create a conflict

3 between defense counsel and his client. Cf. United States v.

4 Malpiedi, 62 F.3d 465, 470 n.3 (2d Cir. 1995) ("We . . . trust

5 that it will not take another decision to induce the government

6 to bring any conflict of interest to the district court's

7 attention, rather than remaining silent in order to gain a

8 tactical advantage from that conflict.").

9 Ramchair was thus deprived of his right to a fair

10 trial.

11 C. Appellate Counsel Was Constitutionally Ineffective

12 Latimer sought to vindicate his client's fair trial

13 right by moving for a mistrial at the conclusion of Detective

14 Winnik's testimony. The motion was denied. When the matter was

15 taken by appellate counsel, she grasped the unfairness of the

16 trial, but did not seem to understand that under the

17 circumstances, the grant of that mistrial motion was

18 constitutionally mandatory. She argued that Latimer's request to

19 testify at the third trial, not his motion for a fourth one,

20 should have been granted.5

21 The argument pursued by appellate counsel had minimal

22 chance of success. "It is well established that once

23 representation is undertaken, a lawyer must withdraw as advocate

24 if it appears that he must testify on behalf of his own client."

5
Appellate counsel also made a colorable but ultimately
meritless claim under the Double Jeopardy Clause. Tr. 18.

16
1 People v. Rivera, 172 A.D.2d 633, 568 N.Y.S.2d 435 (2d Dep't

2 1991); see also People v. Paperno, 54 N.Y.2d 294, 299-300, 429

3 N.E.2d 797, 800 (1981) ("The advocate-witness rule . . .

4 generally requires the lawyer to withdraw from employment when it

5 appears that he . . . will be called to testify regarding a

6 disputed issue of fact.") (internal citations omitted). The

7 "advocate-witness" rule was codified in Disciplinary Rule ("DR")

8 5-102(A) of the New York Code of Professional Responsibility

9 effective at the time of Ramchair's appeal.6 DR 5-102(A)

10 provided, at the time of Ramchair's third trial:

11 If, after undertaking employment in
12 contemplated or pending litigation, a lawyer
13 learns or it is obvious that the lawyer ought
14 to be called as a witness on behalf of the
15 client, the lawyer shall withdraw as an
16 advocate before the tribunal, except that the
17 lawyer may continue as an advocate and may
18 testify in the circumstances enumerated in DR
19 5-101(B)(1) through (4).

20 22 N.Y.C.R.R. § 1200.21 (1996).

21 The exceptions listed in DR 5-101(B) were as follows:

22 1. If the testimony will relate solely to an
23 uncontested issue.
24 2. If the testimony will relate solely to a
25 matter of formality and there is no reason to
26 believe that substantial evidence will be
27 offered in opposition to the testimony.
28 3. If the testimony will relate solely to
29 the nature and value of legal services
30 rendered in the case by the lawyer or the
31 lawyer's firm to the client.

6
The rule is now codified in Rule 3.7(a) of the New York
Rules of Professional Conduct, which is substantially the same as
DR 5-102(A). See, e.g., Gabayzadeh v. Taylor, 639 F. Supp. 2d
298, 303 (E.D.N.Y. 2009) (differences "largely stylistic").

17
1 4. As to any matter, if disqualification as
2 an advocate would work a substantial hardship
3 on the client because of the distinctive
4 value of the lawyer as counsel in the
5 particular case.

6 Id. § 1200.20 (1996). There is no indication that replacing

7 Latimer would have worked a substantial hardship on Ramchair, and

8 counsel did not argue to the Appellate Division that any of the

9 other specified exceptions applied -- nor do they appear to.7

10 Latimer's request to testify while continuing to act as

11 an advocate, the denial of which was the basis for this argument

12 on appeal by counsel, ran directly contrary to the advocate-

13 witness rule. Appellate counsel testified in the district court

14 that she raised the request because she thought it fell within

15 "the exception" to the advocate-witness rule. Tr. 23. "[T]he

16 case law . . . noted that [the requested testimony] might be

17 allowed in those instances where counsel was the only person who

7
Appellate counsel testified at the evidentiary hearing
that she "thought that . . . Mr. Latimer was primarily arguing
for this because this was actually the defendant's third trial.
It seemed like it would be a hardship on everybody, and [not] in
the interest of judicial economy to have yet another trial." Tr.
23. In other words, as we understand it, she was telling the
district court that Latimer did not want a fourth trial because
it would be a hardship and not judicially economical. It may be
that Latimer would have preferred to have testified at the third
trial rather than proceeding to a fourth one, but we find nothing
to support the notion that a particular "substantial hardship" to
Ramchair was involved.

Appellate counsel also made a "substantial hardship"
argument in her brief to the Appellate Division, but did not
assert that a fourth trial, leaving Latimer available to testify,
would represent a particular hardship to Ramchair, or explain why
that would be so.

18
1 can testify to that particular matter." Tr. 22. But an

2 advocate's exclusive knowledge of facts material to the trial is

3 not listed as such an exception in DR 5-101(B). And the New York

4 case law relied upon by appellate counsel in pursuing the state-

5 court appeal does not establish such an exception.8 See People

6 v. Baldi, 54 N.Y.2d 137, 148-49 & n.1, 429 N.E.2d 400, 406 & n.1

7 (1981) (concluding that defense counsel was not constitutionally

8 ineffective for, inter alia, testifying on behalf of client where

9 doing so "strengthened the insanity defense").9

10 While appellate counsel pointed the Appellate Division

11 to dicta from two out-of-state cases making reference to such an

12 exception, see United States v. Ewing, 979 F.2d 1234, 1236 (7th

13 Cir. 1992); United States v. Fogel, 901 F.2d 23, 26 (4th Cir.

14 1990), it was highly unlikely that that court would decide that

15 the trial court had committed reversible error and abused its

16 discretion in declining to rely on those cases.10 It was,

8
Appellate counsel did not identify authority to support
such an exception in her testimony to the district court.
9
We also note that in Baldi, "there [was] some evidence
that defendant was wary of strangers and trusted [defense
counsel], so that [defense counsel's] withdraw as counsel might
have been ill-advised." Id., 54 N.Y.2d at 149 n.1, 429 N.E.2d
406 n.1. We offer no view as to whether, under Baldi or
otherwise, it would have been within the trial court's discretion
to allow Latimer to testify at the third trial had it chosen to
do so. Application of the advocate-witness rule is subject to
the trial court's discretion. See Stober v. Gaba & Stober, P.C.,
259 A.D.2d 554, 606 N.Y.S.2d 440 (2d Dep't 1999).
10
Even the out-of-state cases relied upon by appellate
counsel, although referring to an exception for an attorney's
exclusive knowledge of facts material to the trial, did not apply
it, and affirmed the decisions of trial courts prohibiting an

19
1 therefore, unsurprising that the Appellate Division denied

2 Ramchair's state-court appeal without reference to them.

3 Appellate counsel was not wrong to argue for Ramchair's

4 right to present a defense; rather, she was wrong to argue that

5 it had to be vindicated by defense counsel Latimer serving as an

6 advocate-witness in the third trial, and failing to argue that it

7 should have been vindicated through the declaration of a

8 mistrial. Where "conduct . . . has deprived [a criminal

9 defendant] of a fair trial, the appropriate manner for defendant

10 to raise the issue is by a motion for a mistrial." People v.

11 Thompson, 79 A.D.2d 87, 108 n.19, 435 N.Y.S.2d 739, 754 n.19 (2d

12 Dep't 1981). "At any time during the trial, the court must

13 declare a mistrial and order a new trial of the indictment . . .

14 [u]pon motion of the defendant, when there occurs during the

15 trial an error or legal defect in the proceedings, or conduct

16 inside or outside the courtroom, which is prejudicial to the

17 defendant and deprives him of a fair trial." New York Criminal

18 Procedure Law ("CPL") § 280.10. Because Ramchair was denied a

19 fair trial, the state trial court erred as a matter of law in not

20 granting the mistrial motion. Taking into account "the

21 distorting effects of hindsight," Strickland, 466 U.S. at 689, we

22 nonetheless conclude that appellate counsel's failure to raise

23 the mistrial claim falls outside that category of "omissions by

advocate from testifying. See Ewing, 979 F.2d at 1236; Fogel,
901 F.2d at 26.

20
1 counsel that might be considered sound trial strategy," Henry v.

2 Poole, 409 F.3d 48, 63 (2d Cir. 2005) (internal quotation marks

3 omitted).11

4 "[S]tate appellate counsel's failure to argue the

5 [issue in question] was below the standards of reasonably

6 competent performance, for the claims [she] raised were extremely

7 weak, while the [claim based on the issue in question] was

8 particularly strong." Mayo, 13 F.3d at 534. It was also

9 prejudicial. There is a reasonable probability that the

10 Appellate Division and the Court of Appeals would have been

11 swayed by the mistrial claim, because that claim was sound. "[A]

12 defendant need not show that counsel's deficient conduct more

13 likely than not altered the outcome in the case." Henry, 409

14 F.3d at 63 (internal quotation marks omitted) (emphasis in

15 original). We conclude, notwithstanding the district court's

16 observation that the Court of Appeals intimated, after the fact,

17 that it took a "dim" view of the mistrial claim, Ramchair IV, 671

11
A "[d]efendant's motion for a mistrial and [the] Supreme
Court's denial of that motion sufficiently preserved the question
of law for [state-court appellate] review." People v. Smith, 97
N.Y.2d 324, 330, 766 N.E.2d 941, 945 (2002). In its brief
submitted after this case was returned to us, the State cites
People v. Weston, 56 N.Y.2d 844, 438 N.E.2d 873 (1982), for the
proposition that the mistrial claim was not preserved because
although Latimer specified the legal basis for the claim, he did
not specify that he wished to withdraw as Ramchair's counsel.
Weston does not support that proposition. In Weston, a motion
for a mistrial on the ground that the State would not be able to
connect certain evidence to the defendant did not preserve a
claim that the trial judge should have prevented references to
that evidence to avoid prejudice. The court explained that the
claim of prejudice was separate from, and thus not preserved by,
the claim regarding the State's ability to connect the evidence
to the defendant.
21
1 F. Supp. 2d at 384, that there was a reasonable probability that

2 the state courts would have recognized a sound claim had it been

3 timely made, and Ramchair was prejudiced by appellate counsel's

4 failure to raise it.

5 D. The New York Court of Appeals' Application of Clearly-
6 Established Supreme Court Precedent was Unreasonable

7 We assume, as the district court appears to have

8 assumed, that the New York Court of Appeals applied the correct

9 Supreme Court precedent governing ineffective assistance

10 claims.12 We conclude as did the district court, however, that

11 the Court of Appeals applied the law unreasonably. As the Court

12 of Appeals noted, "[a]ppellate advocacy is meaningful if it

13 reflects a competent grasp of the facts, the law and appellate

14 procedure, supported by appropriate authority and argument."

15 People v. Ramchair, 8 N.Y.3d at 316, 864 N.E.2d at 1290 (internal

16 quotation marks omitted). Appellate counsel, as we have

17 explained, did not meet that standard here.

18 The Court of Appeals said that appellate counsel

19 submitted a "comprehensive brief to the Appellate Division

20 raising two strong claims on [the] defendant's behalf." Id.

21 But, having omitted the only claim that was clearly meritorious,

22 we cannot see how the brief can be said to have been

23 "comprehensive."

12
After noting that state criminal defendants have both a
state and federal right to the effective assistance of appellate
counsel, the Court of Appeals discussed only the "meaningful
representation" standard developed under state law. People v.
Ramchair, 8 N.Y.3d at 316, 864 N.E.2d at 1290.
22
1 The Court of Appeals also said that "appellate counsel

2 might have determined as a matter of reasonable appellate

3 strategy that there was a greater likelihood of success pursuing

4 the right to present a defense argument, rather than focusing on

5 the mistrial application." Id., 8 N.Y.3d at 317, 864 N.E.2d at

6 1291. But appellate counsel's testimony in the district court

7 revealed that her decision to forego the mistrial claim was not a

8 product of strategy, sound or otherwise, but of mistake. And, as

9 we have explained, the "right to present a defense" argument was

10 not an alternative to arguing the mistrial application; on the

11 contrary, the mistrial application was the appropriate vehicle

12 for vindicating the right to present a defense.

13 The Court of Appeals thus applied the law governing

14 ineffective assistance of counsel unreasonably, and federal

15 habeas relief is warranted.

16 E. The District Court Did Not Abuse Its Discretion in Granting a
17 New Trial

18 "Federal habeas corpus practice . . . indicates that a

19 court has broad discretion in conditioning a judgment granting

20 habeas relief. Federal courts are authorized . . . to dispose of

21 habeas corpus matters as law and justice require." Hilton v.

22 Braunskill, 481 U.S. 770, 775 (1987) (internal quotation marks

23 omitted); accord, Levine v. Apker, 455 F.3d 71, 77 (2d Cir.

24 2006). "Cases involving Sixth Amendment deprivations are subject

25 to the general rule that remedies should be tailored to the

26 injury suffered from the constitutional violation and should not

23
1 unnecessarily infringe on competing interests." United States v.

2 Morrison, 449 U.S. 361, 364 (1981).

3 In its order following our remand, the district court

4 set forth its reasons for concluding that a new trial was the

5 remedy best tailored to the constitutional violation in this

6 case. Chief among them was the long delay Ramchair has endured

7 since his conviction. Indeed, Ramchair appears already to have

8 served more than half of his maximum sentence as a result of a

9 variety of delays, some of them unreasonable and none of them

10 apparently of his doing. Because remanding for a new appeal

11 would further delay any new trial, and because the district court

12 found the mistrial claim unassailably meritorious due to the

13 unfairness of Ramchair's trial, the district court concluded that

14 remanding for a new trial, without pausing for a new appeal, was

15 appropriate.

16 Requiring a new trial was thus not an abuse of the

17 district court's discretion to fashion a habeas remedy. See,

18 e.g., Eagle v. Linahan, 279 F.3d 926, 944 (11th Cir. 2001)

19 (remanding for new trial where appellate counsel was ineffective

20 for failing to raise Batson challenge). In the cases in this

21 Circuit relied upon by the State for the proposition that a

22 remand for a new trial was beyond the district court's

23 discretion, the court remanded for a new appeal with no

24 discussion of why it was doing so rather than ordering a new

25 trial. See Claudio v. Scully, 982 F.2d 798, 806 (2d Cir. 1992);

26 Jenkins v. Coombe, 821 F.2d 158, 162 (2d Cir. 1987), cert denied,

24
1 484 U.S. 1008 (1988); Barnes v. Jones, 665 F.2d 427, 436 (2d Cir.

2 1981), rev'd on other grounds, 463 U.S. 745 (1983). None of the

3 cases, nor any others of which we are aware, precludes a district

4 court from ordering a new trial in circumstances such as those

5 presented here. But cf. Mapes v. Tate, 388 F.3d 187, 194-95 (6th

6 Cir. 2004)(affirming habeas relief of new state-court appeal for

7 ineffective assistance of appellate counsel, and rejecting

8 petitioner's request for ruling on underlying sentencing issue as

9 "go[ing] far beyond neutralizing the constitutional deprivation

10 suffered by the defendant." (internal quotation marks and

11 alterations omitted).)

12 This is a matter committed to the sound discretion of

13 the district court. We conclude that the district court acted

14 within its discretion.

15 CONCLUSION

16 For the foregoing reasons, the judgment of the district

17 court is affirmed.

18 The mandate shall issue forthwith.

25