14‐1675‐pr Lynch v. Superintendent Dolce
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: May 7, 2015 Decided: June 18, 2015)
Docket No. 14‐1675‐pr
________________
ROBERT A. LYNCH,
Petitioner‐Appellant, — v. —
SUPERINTENDENT DOLCE,
Respondent‐Appellee.*
B e f o r e:
LEVAL, LYNCH, and DRONEY, Circuit Judges.
__________________
* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the caption above. Robert Lynch appeals from the denial of his petition for a writ of habeas
corpus based on a claim of ineffective assistance of appellate counsel. Lynch’s
appellate counsel failed to raise the trial court’s refusal to give a requested
instruction on a necessary element of first‐degree robbery, and instead raised
significantly weaker issues, thus falling below objective standards of professional
competence. The district court (Michael A. Telesca, Judge) denied Lynch’s
petition for habeas corpus, holding that the evidence presented at trial was
sufficient for a rational jury to find that Lynch possessed his co‐defendant’s
handgun at the time of the robbery. That was the wrong prejudice standard to
apply. Applying the correct standard, we conclude that the state courts’
dismissal of Lynch’s claim was an unreasonable application of clearly established
federal law, and that appellate counsel provided constitutionally ineffective
assistance. We therefore REVERSE and REMAND with instructions to grant the
writ conditionally.
MALVINA NATHANSON, New York, NY, for petitioner‐ appellant.
MICHELLE E. MAEROV, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy
2 Solicitor General for Criminal Matters, on the brief) for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for respondent‐appellee.
GERARD E. LYNCH, Circuit Judge:
Robert Lynch appeals from the denial of his petition for a writ of habeas
corpus based on a claim of ineffective assistance of appellate counsel. The state
court refused Lynch’s trial counsel’s request to charge the jury that, to find Lynch
guilty of first‐degree robbery by using or threatening the immediate use of a
dangerous instrument, it had to find that Lynch actually possessed a dangerous
instrument at the time of the crime. Although trial counsel made a full record on
that request, and cited the applicable New York Court of Appeals case holding
such possession to be a required element of the crime, Lynch’s appellate counsel
failed to raise the trial court’s refusal to give the charge as an error. New York
law is clear that Lynch was entitled to the requested instruction. Indeed, after the
conviction – but before appellate counsel filed her opening brief – the Court of
Appeals reaffirmed the possession requirement, making clear that refusal to give
the requested instruction is reversible error. Appellate counsel’s failure to raise
that issue and her decision instead to raise weaker issues that were unlikely to
3 succeed fell below prevailing norms of professional conduct. Further, given the
weakness of the evidence that Lynch in fact possessed a weapon during the
robbery, the instructional error was not harmless, and there is a reasonable
probability that, had counsel raised the issue, the state appellate court would
have reversed Lynch’s conviction on the most serious count.
Lynch timely raised his ineffective assistance claim in a petition for a writ
of error coram nobis, which was denied without explanation by the New York
courts. The district court (Michael A. Telesca, Judge) denied Lynch’s federal
petition for habeas corpus, holding that the evidence presented at trial was
sufficient for a rational jury to find that Lynch possessed his co‐defendant’s
handgun at the time of the robbery. That was the wrong prejudice standard to
apply. Applying the correct standard, and in light of the evidence at trial and the
pattern of the jury’s verdicts, we conclude that the state courts’ dismissal of
Lynch’s claim was an unreasonable application of clearly established federal law,
and that his appellate counsel provided constitutionally ineffective assistance.
We therefore REVERSE and REMAND with instructions to grant the writ
conditionally.
4 BACKGROUND
I. The Crime
On October 28, 2004, Rachel Tally‐Verstraten drove to the Family Dollar
store in Rochester, NY, with her two children. She parked next to a dark‐colored
Dodge Stratus, in which she saw two men sitting. Tally‐Verstraten got out of her
car and opened the back door to get her younger daughter out of a car‐seat. She
then felt someone come up behind her and “shove[ ] something” into her right
side. Joint App’x at 169. Tally‐Verstraten’s assailant, later identified as Lynch,
told her that he had a gun and would shoot her in front of her children if she did
not relinquish her purse. She looked down to see if Lynch did in fact have a gun
and asked if he was kidding. He replied, “[N]o, give me your purse or I’ll hurt
you and your kids.” Id. Lynch then reached out and touched Tally‐Verstraten’s
pocket; she pushed him back and told him not to touch her. The two began to
struggle over the purse; Lynch grabbed it, but Tally‐Verstraten would not let go.
Lynch “cock[ed] his fist back” and hit Tally‐Verstraten in the face. Id. at 171. She
then released her grip on the purse. Lynch got into the passenger side of the
Stratus and he and the other man drove away. Two witnesses saw the robbery:
Ediberto Diaz, Sr., and his son, Ediberto Diaz, Jr. By chance, the two Diazes
5 found themselves several minutes later driving behind the same Stratus they had
seen at the Family Dollar. They observed the car enter a gas station and two men
get out. The Diazes called the police. When the police arrived, the two men ran.
Lynch was apprehended and told the officers, “I knew I shouldn’t have gotten
into that car.” Id. at 184. Meanwhile, other officers arrested a second man,
Rodney Brandon, and recovered an unloaded .22 caliber handgun from him, as
well as ammunition he was carrying in a separate pocket. In a show‐up
procedure in the Family Dollar parking lot, the Diazes identified Lynch and
Brandon; Tally‐Verstraten stated that she was 80% certain that Lynch was the
man who stole her purse, but that she could not identify Brandon. The purse was
found in the Stratus. Lynch later made a statement to police, admitting that he
had “run up on the woman and bumped her in the mouth.” Lynch v.
Superintendent Dolce, No. 12‐cv‐974 (W.D.N.Y. Feb. 26, 2013), ECF No. 11‐3, at
78.
II. The Trial
Lynch and Brandon were each indicted on two counts of first‐degree
robbery under New York Penal Law § 160.15(2) (armed with a deadly weapon)
and § 160.15(3) (using or threatening the immediate use of a dangerous
6 instrument), and two counts of second‐degree robbery under Penal Law
§ 160.10(1) (aided by another person) and § 160.10(2)(a) (causing physical injury
to a non‐participant). Brandon was also indicted on two counts of criminal
possession of a weapon. The defendants were tried together.
At trial, Tally‐Verstraten testified about her encounter with Lynch as
follows:
Q: And did he touch you anywhere else at that point? A: He touched me like one hand on the left‐ hand side and like shoved something against my right‐hand side waist (indicating). Q: Now could you tell what he was shoving? A: No. Q: Could it have been his fist? A: It could have been. Q: Once you felt that you must have reacted to it. What did you do? A: Um, I asked if he was kidding me. Q: Did you turn to face him? A: No, I was looking down. I wanted to see if there was a gun cause he said there was. Q: When you were looking down ‐‐ pardon me; what were you looking at? His hands? A: I was just looking down. It was dark so I didn’t see anything. Q: Okay. You’re certain once he said he had a gun you took it upon yourself to find out if that was true? A: That’s right. Q: Obviously ‐‐
7 A: Yes. Q: ‐‐ you concluded that he didn’t have a gun? A: Yes.
Joint App’x at 176‐77. The Diazes also testified that they never saw Lynch
possess or use a weapon during the robbery.
Lynch did not present a defense,1 but Brandon testified on his own behalf.
He said that he had never met Lynch and did not participate in the robbery.
Instead, Brandon testified that on the day of his arrest, he had been walking
through a field when a man approached him and offered to sell him a gun for
$20. Brandon obliged, testifying that he had bought the gun for “no purpose.”
Id. at 200. He was then walking down the street when the police accosted him,
searched him, found the gun he had just bought, and placed him under arrest.
Later, at the charge conference, counsel for both defendants asked the trial
court to instruct the jury that, to convict under Penal Law § 160.15(3), the count
involving the use or threatened use of a dangerous instrument, the jury had to
find that the defendant possessed a dangerous instrument at the time of the
1 Lynch’s counsel sought to introduce a recording of a telephone call from Tally‐Verstraten to 911, but the court denied the request. See Lynch v. Superintendent Dolce, No. 12‐cv‐974 (W.D.N.Y. Feb. 26, 2013), ECF No. 11‐3, at 282.
8 robbery. For authority, counsel cited the decision of the New York Court of
Appeals in People v. Pena, 50 N.Y.2d 400 (1980).2 In an oral decision, the trial
court acknowledged that case, but declined to give the possession instruction.
Lynch’s counsel then asked the court again:
I requested you as to count two to include in your charge an essential element of the commission of that offense, that’s the charge that alleges the use or the threatened use of a dangerous instrument, I’d ask that you charge the additional element that the robber/defendant in fact possessed a dangerous instrument.
Joint App’x at 209. The trial court again denied the request.
The court subsequently instructed the jury that to convict of first‐degree
robbery under Penal Law § 160.15(3), the jury had to find only two elements:
first, that the defendant forcibly stole property; and second, that “during the
commission of [the] crime or an immediate flight therefrom, the defendant or
another participant in the crime used or threatened the immediate use of a
2 As relevant here, the Court of Appeals stated in that case, “[d]ecisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard, the jury was required to find that [the defendant] actually possessed a dangerous instrument at the time of the crime.” Pena, 50 N.Y.2d at 407 (citation omitted). This statement was arguably dictum, however, as the case did not involve an allegation of instructional error.
9 dangerous[ ] weapon; to wit, a handgun.” Id. at 215.
The jury convicted Lynch of robbery in the first degree, involving the use
or threatened use of a dangerous instrument. It acquitted him, however, of
robbery in the first degree while armed with a deadly weapon, convicting him
instead of the lesser included offense of third‐degree simple robbery. It also
convicted him of the two counts of robbery in the second degree (aided by
another person and causing physical injury to a non‐participant). The jury
acquitted Brandon of all counts related to the robbery, but convicted him of
criminal possession of a weapon. The trial court sentenced Lynch to a 12‐year
term of imprisonment for the first‐degree robbery count, 10‐year terms for the
second‐degree counts, and a 7‐year term for the third‐degree count, the sentences
to run concurrently.
III. The Direct Appeal
Lynch was represented by new counsel on appeal. For reasons that are not
clear from the record, appellate counsel did not file her opening brief until
August 2010, nearly five years after the sentencing. In the intervening years, the
New York Court of Appeals decided People v. Ford, 11 N.Y.3d 875 (2008), which
held, relying on Pena, that the trial court in that case had erred in failing to
10 inform the jury that “actual possession” was an essential, though implicit,
element of dangerous‐instrument robbery, instead merely “parrot[ing] the
statute,” as the trial court did here. Id. at 878. Following Ford, New York
amended its pattern jury instructions for first‐degree robbery under Penal Law
§ 160.15(3) to include language stating that the People must prove that the
defendant “possessed a dangerous instrument.” See People v. Grant, 17 N.Y.3d
613, 619 n.3 (2011), quoting CJI2d(NY) Penal Law § 160.15(3) (revised Jan. 5,
2009).
Lynch’s counsel did not raise any claim of instructional error in his direct
appeal, however. Instead, the appellate brief raised six issues, arguing that (1)
Lynch was never actually convicted of robbery in the first degree because the trial
transcript reflected that the court clerk asked the jury if it found Lynch guilty
only of third‐degree robbery; (2) the evidence was insufficient to support a
conviction for first‐degree robbery;3 (3) the evidence presented to the grand jury
and petit jury was insufficient to support the convictions for second‐degree
robbery; (4) the convictions were against the weight of the evidence; (5) the court
3 The first two issues were raised in the appellate brief as sub‐arguments under one heading. See Joint App’x at 37‐42.
11 erred in excluding a 911 call that the defense sought to admit; and (6) the
sentence was excessively harsh.
The New York Supreme Court Appellate Division, Fourth Department,
affirmed Lynch’s conviction and sentence on February 10, 2011. People v. Lynch,
916 N.Y.S.2d 407 (4th Dep’t 2011) (“Lynch I”). With regard to the court clerk’s
error in asking the jury whether they found Lynch guilty of third‐degree robbery,
the court held that the claim was unpreserved, and, in any event, the verdict
sheet and the trial court’s charge made it clear that the jury had in fact convicted
Lynch of first‐degree robbery. See id. at 408. Regarding the sufficiency and
weight of the evidence arguments, the court held, “Contrary to defendant’s
further contention, the evidence is legally sufficient to support the conviction.
Viewing the evidence in light of the elements of the crimes as charged to the jury,
we conclude that the verdict is not against the weight of the evidence.” Id. at 409
(citations omitted). The Appellate Division found Lynch’s additional arguments
to be without merit. Leave to appeal to the Court of Appeals was denied. People
v. Lynch, 17 N.Y.3d 807 (2011).
IV. Postconviction Proceedings
Lynch timely filed a pro se petition for a writ of error coram nobis in the state
12 court, arguing, inter alia, that his appellate counsel had rendered ineffective
assistance by failing to raise the instructional error in his direct appeal. The
Appellate Division summarily denied the petition, stating only that, having
considered Lynch’s petition and supporting affidavit and the affirmation of the
Assistant District Attorney, “It is hereby ORDERED that the motion is denied.”
Joint App’x at 86; People v. Lynch, 948 N.Y.S.2d 841 (4th Dep’t 2012). Leave to
appeal to the Court of Appeals was again denied. People v. Lynch, 19 N.Y.3d
1027 (2012).
Lynch then filed a federal petition for a writ of habeas corpus, asserting the
ineffective assistance of appellate counsel claim, as well as several other issues.
The district court denied the petition. Lynch v. Superintendent Dolce, No.
1:12‐CV‐0974 (MAT), 2014 WL 1600379 (W.D.N.Y. Apr. 21, 2014) (“Lynch II”). As
to the ineffective assistance of appellate counsel claim, the district court was “not
prepared to say . . . that appellate counsel was outside the wide range of
professionally competent assistance in failing to press [the instructional error
argument] on appeal.” Id. at *12 (internal quotation marks omitted). The district
court noted that respondent argued that the claim of instructional error was
unpreserved, and stated that “[c]ourts in this Circuit have consistently held that
13 appellate counsel should not be faulted for failing to raise an unpreserved claim.”
Id. The district court went on, however, to “question[ ] the conclusion of the
assistant district attorney . . . that the ‘actual possession’ claim was unpreserved,”
id., noting that counsel had requested the charge, was rebuffed by the trial court,
and after the trial court gave its charge to the jury, the court asked whether there
were “any requests or exceptions to the charge other than those previously made a
part of the record.” Id. (emphasis added) (alteration and internal quotation
marks omitted). Thus, the district court stated, “Arguably . . . at least the judge
and the trial attorneys understood the ‘actual possession’ claim to be preserved.”
Id.
The district court did not finally rule on the adequacy of counsel’s
performance, however. Instead, it held that Lynch failed to demonstrate
prejudice, “because, as the Appellate Division found on appeal, the evidence was
legally sufficient for the jury to find that Petitioner ‘actually possessed’ the
handgun found later on [his] co‐defendant’s person.” Id. The district court
noted that while a robber’s mere assertion that he had a weapon is not enough to
convict of first‐degree robbery under New York law, here there was more: Tally‐
Verstraten felt her assailant press “an object” into her back as he announced it
14 was a gun, and, immediately after the robbery, Lynch got into the car with
Brandon, who was later found with a gun.4 Id. at *13. Based on this evidence,
the district court held that there was sufficient circumstantial evidence for a
rational juror to conclude that Lynch had a gun in his possession at the time of
the robbery, and that he used that gun to threaten Tally‐Verstraten and forcibly
steal her purse. Id. Therefore, the district court concluded that the outcome of
Lynch’s direct appeal would not have been different, even if appellate counsel
had raised the instructional issue. Id.
We granted a certificate of appealability solely on the issue of ineffective
assistance of appellate counsel. Lynch v. Superintendent Dolce, No. 14‐1675 (2d
Cir. Aug. 29, 2014), ECF No. 27.
DISCUSSION
I. Standard of Review
We review a district court’s denial of a petition for a writ of habeas corpus
de novo and the underlying state court’s denial for “an objectively unreasonable
4 The district court appears to have assumed that the driver of the car was Brandon, and a reasonable jury could certainly have so found. The actual jury, however, may have had a reasonable doubt about that, as it acquitted Brandon of involvement in the robbery.
15 application of clearly established federal law,” as determined by the Supreme
Court. Rivas v. Fischer, 780 F.3d 529, 546 (2d Cir. 2015) (internal quotation marks
omitted); see 28 U.S.C. § 2254(d)(1). Where, as here, the state court does not
provide reasons for its dismissal of a petitioner’s claim, we consider “what
arguments or theories . . . could have supported[] the state court’s decision,” and
may grant habeas only if “fairminded jurists could [not] disagree that those
arguments or theories are inconsistent with the holding in a prior decision of” the
Supreme Court. Harrington v. Richter, 562 U.S. 86, 102 (2011).
The Sixth Amendment guarantees the right to effective representation on
direct appeal. See Evitts v. Lucey, 469 U.S. 387, 396‐97 (1985). In assessing a
claim that a lawyer’s representation did not meet the constitutional minimum,
we “indulge a strong presumption that counsel’s conduct f[ell] within the wide
range of professional assistance.” Strickland v. Washington, 466 U.S. 668, 689
(1984). To overcome that presumption, a petitioner must establish both parts of
the familiar Strickland test, showing, first, that his attorney’s performance “fell
below an objective standard of reasonableness,” id. at 688, and, second, that there
was prejudice, meaning a “reasonable probability” that, but for counsel’s error,
the outcome would have been different, id. at 694. This test applies in the
16 appellate context as well as at trial. See Smith v. Robbins, 528 U.S. 259, 285
(2000); Clark v. Stinson, 214 F.3d 315, 321 (2d Cir. 2000). In that context, counsel
has no duty to raise every non‐frivolous issue that could be raised. See Jones v.
Barnes, 463 U.S. 745, 754 (1983). Nevertheless, appellate counsel’s performance
must meet prevailing professional norms. See Smith v. Murray, 477 U.S. 527,
535‐36 (1986), citing Strickland, 466 U.S. 668. We have held that “a petitioner may
establish constitutionally inadequate performance [of appellate counsel] if he
shows that 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). “The claim whose omission forms the basis of an ineffective
assistance claim may be either a federal‐law or a state‐law claim, so long as the
‘failure to raise the state claim fell outside the wide range of professionally
competent assistance.’” Id. (alteration omitted), quoting Claudio v. Scully, 982
F.2d 798, 805 (2d Cir. 1992).
To establish prejudice in the appellate context, a petitioner must show that,
had his claim been raised on appeal, there is a reasonable probability that it
would have succeeded before the state’s highest court. See Claudio, 982 F.2d at
805. Whereas counsel’s performance is evaluated based “on the facts of the
17 particular case, viewed as of the time of counsel’s conduct,” Strickland, 466 U.S.
at 690, the prejudice determination “may be made with the benefit of hindsight.”
Mayo, 13 F.3d at 534, citing Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
II. The Standard Applied
At the outset, we pause to note what is at stake in this appeal. This appeal
has no effect on Lynch’s well deserved and fairly obtained convictions for the
serious crimes of second‐ and third‐degree robbery, or the sentences imposed on
those counts. The evidence showed that Lynch forcibly stole from a young
mother, threatening violence against her and her children and physically
assaulting her in the process, and made his getaway with the aid of another
person. That evidence overwhelmingly supports his convictions for second‐ and
third‐degree robbery, for which he must serve a 10‐year prison term. All legal
challenges to those convictions and that sentence have been rejected.
Lynch was further sentenced, however, to two additional years in prison,
based on a conviction for first‐degree robbery. New York has seen fit to divide
the crime of robbery into degrees, reserving the highest degree – carrying the
highest penalties – for a select group of the most serious cases of forcible stealing.
These cases are marked by specified aggravating circumstances. Lynch was
18 convicted of this most serious category of robbery based on the aggravating
factor of using or threatening the immediate use of a dangerous instrument. N.Y.
Penal Law § 160.15(3). Notably, the jury acquitted him of a parallel charge of first‐
degree robbery based on his being actually armed with a deadly weapon. Id.
§ 160.15(2). The only dangerous instrument or deadly weapon of which there
was any evidence was the gun that Lynch claimed to have when threatening his
victim, which the prosecution argued was recovered from Brandon at his arrest.
On the face of the statute on which Lynch was convicted, there is an
apparent ambiguity: Can a defendant be guilty for threatening a victim with the
use of a dangerous weapon when the threat is, in effect, an empty one, because
the defendant did not actually possess any weapon? Lynch’s counsel asked the
trial judge to advise the jury that such an empty (though obviously frightening
and malicious) threat would not aggravate the crime to first‐degree robbery.
Trial counsel was astute to raise this issue. If the jury was not told that actual
possession of a weapon was required, Lynch was very likely to be convicted of
first‐degree robbery: the victim’s testimony, which the jury had every reason to
believe, was unequivocal that Lynch had threatened to shoot her. But if an
empty threat would not suffice, and possession of an actual weapon was
19 required, as discussed more fully below, the defense would have a good chance
to avoid conviction on the most serious, aggravated charge.
In short, the legal issue that Lynch’s trial lawyer attempted to raise, and
that forms the underlying issue Lynch continues to press, could not result in
overturning his conviction and 10‐year sentence for second‐ and third‐degree
robbery, but does affect whether he was also guilty of first‐degree robbery.
With these issues in mind, and with full respect for the state’s primary role
in reviewing its own convictions, we conclude, based upon a full review of the
law and the record of this case, that the district court erred in determining that
the state court’s decision denying Lynch’s claim of ineffective assistance of
appellate counsel was not an unreasonable application of clearly established
federal law.
A. Appellate Counsel’s Performance
As explained above, an appellate lawyer’s performance falls below
professional standards when she fails to raise a significant, obvious issue, “while
pursuing issues that [are] clearly and significantly weaker.” Mayo, 13 F.3d at
533. The jury instruction issue presented by trial counsel was precisely such a
20 significant and apparent issue that a competent appellate attorney should have
pursued.
First, there is no question that the issue had merit, because the trial court’s
failure to give the requested instruction was unquestionably error under New
York law. The principle that actual possession of a dangerous instrument is a
necessary element of first‐degree robbery by the threatened use of such an
instrument had been established in New York for a generation by the time of
Lynch’s trial. In People v. Pena, decided in 1980, New York’s highest court
stated, “[d]ecisional law tells us that, though the statutory ground upon which
the first degree robbery count was brought is not explicit in that regard, the jury
was required to find that [the defendant] actually possessed a dangerous
instrument at the time of the crime.” 50 N.Y.2d at 407 (citations omitted).
Although that statement may have been dictum, following Pena, the Fourth
Department twice held that an empty verbal threat to use a dangerous weapon
was legally insufficient for a conviction for robbery in the first degree and under
analogously‐worded statutes, because “[a]ctual possession of a dangerous
instrument is required for robbery in the first degree.” People v. White, 548
N.Y.S.2d 119, 120 (4th Dep’t 1989); People v. Stefano, 522 N.Y.S.2d 391, 392 (4th
21 Dep’t 1987). Each of the other departments of the Appellate Division had
similarly so held by the time of Lynch’s trial. See Grant, 17 N.Y.3d at 618
(collecting cases). Thus, it was clearly error for the trial court to refuse to instruct
the jury that possession was an element of first‐degree robbery under Penal Law
§ 160.15(3).5
To the extent there was any doubt as to that requirement, it was dispelled
after Lynch’s conviction, but before his appellate counsel’s filing of the direct
appeal brief, when the Court of Appeals decided People v. Ford, 11 N.Y.3d 875
(2008). That case reaffirmed the previously‐quoted language in Pena and held
that a jury instruction that fails to “use the term ‘actual possession,’ or in any
other way convey that requirement to the jury” constitutes reversible error. Id. at
878. Following Ford, but still before counsel filed the appellate brief in this case,
5 Moreover, the issue was fully preserved for appellate review. Respondent no longer presses the argument that it was not. Lynch’s trial counsel unambiguously requested an instruction that the jury must find that “the robber/defendant in fact possessed a dangerous instrument” in order to find Lynch guilty of robbery in the first degree under New York Penal Law § 160.15(3). Joint App’x at 209. After the trial court refused to give such an instruction, and subsequently delivered its jury charge without any reference to possession, the court asked counsel whether there were “any requests or exceptions to the charge other than those previously made a part of the record.” Id. at 216 (emphasis added). There was thus no need for Lynch’s trial counsel to reiterate his request as an exception to the charge.
22 the New York pattern jury instructions were amended to reflect that possession
was an element of robbery in the first degree with the use or threatened use of a
dangerous instrument. See Grant, 17 N.Y.3d at 619 n.3, citing CJI2d(NY) Penal
Law § 160.15(3) (revised Jan. 5, 2009). Consequently, although the charge given
by the trial court in 2005 was based on the then‐current pattern jury instruction,
the Ford decision in 2008 rendered beyond debate the conclusion that the trial
court erred in refusing to instruct on the possession element by the time the
appellate brief was filed in 2010.6
The issue was thus plainly a “significant” one for appeal. Criminal defense
lawyers are not often able to argue on appeal that the trial court refused a specific
request for a jury instruction that, at the time the appeal is heard, the state’s
highest court had recently held (based on long‐standing precedent) must be
given. Moreover, the issue was patently obvious on the face of the record. Trial
6 Furthermore, five months prior to counsel filing the appellate brief, another department of the Appellate Division, relying on Ford, reversed a conviction under Penal Law § 160.15(3) as a result of the trial court’s failure to give a possession instruction. See People v. Cordes, 897 N.Y.S.2d 479, 481 (2d Dep’t 2010), citing Ford, 11 N.Y.3d at 878.
23 counsel had diligently made the charge request, citing the controlling precedent.7
A simple Shepard‐search of that precedent would have revealed the recent Court
of Appeals case applying the precedent in a highly analogous context, the newly‐
revised pattern jury instructions including the omitted element, and the
multitude of Appellate Division cases holding that proof of actual possession was
required for a first‐degree robbery conviction. Had appellate counsel conducted
that search, she would have recognized the error in the jury instruction and that
it was a promising ground for success on appeal. The error, it is true, did not
affect most of the counts of conviction. But, as discussed more fully below,
Lynch did not have any promising issues that could lead to his full exoneration,
or even to a new trial on all counts. An issue that could result in reversal of the
first‐degree conviction would undo the most serious count of conviction, on
which Lynch had received the longest sentence. Further, the omission cannot be
explained as a strategic decision to eschew arguments that attacked only the first‐
degree conviction; the first two arguments raised in Lynch’s appellate brief
7 Appellate counsel in fact cited Pena in the appellate brief, but did so only in the context of the sufficiency of the evidence argument, and did not indicate that there was any request to instruct the jury based on that case. See Joint App’x at 40‐41.
24 addressed only that conviction. Cf. Strickland, 466 U.S. at 690 (“[S]trategic
choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.”).
Respondent argues that appellate counsel’s performance was not deficient,
because counsel’s argument that the evidence presented at trial was legally
insufficient to convict Lynch of first‐degree robbery and her argument that the
conviction was against the weight of the evidence were “essentially the same” as
the instructional issue. Resp’t’s Br. 42. Furthermore, the argument goes,
attacking the sufficiency of the evidence to support a first‐degree robbery
conviction offered the possibility of greater relief, since a finding of insufficient
evidence would result in outright acquittal, rather than just a new trial.
But counsel’s decision to challenge the sufficiency and weight of the
evidence in relation to the possession requirement does not support any
reasonable strategic basis for failing to raise the instructional error as a distinct,
alternative argument for relief. Counsel did not face a choice between the two
arguments; they could have been presented as alternative grounds for reversal of
the first‐degree robbery conviction. Moreover, counsel who was aware of the
Ford decision would have recognized that raising the sufficiency claim without
25 pointing to the error in the jury instruction significantly weakened the sufficiency
argument. While the Court of Appeals held in Ford that failure to instruct on
possession was error, because there was no objection to the erroneous charge in
that case, the court analyzed the sufficiency of the evidence “in light of the [trial]
court’s charge as given without exception.” 11 N.Y.3d at 878. Thus, counsel’s
failure in this case to apprise the appellate court that trial counsel had requested
the correct charge had the additional deleterious effect of framing the analysis of
Lynch’s other claims through the lens of the charge as given. And without the
actual possession instruction, the evidence was clearly sufficient to support a
finding beyond a reasonable doubt that Lynch was guilty of first‐degree robbery
based solely on his threat to shoot the victim.
Respondent contended at oral argument that the Appellate Division would
not have analyzed the sufficiency of the evidence here as the Court of Appeals
did in Ford, because here, trial counsel did request the possession charge. But
even assuming that the court would have analyzed the sufficiency of the
evidence in the context of the correct charge, rather than the charge as given,8 the
8 That assumption is dubious. First, it requires us to suppose that the Appellate Division scoured the record for objections by trial counsel that were not raised on appeal. Even indulging in that supposition, the Appellate Division
26 sufficiency issue was inherently weaker than the instructional issue, both because
of the different standard applied to each kind of claim and because of the merits
of the specific claims in this case.
The sufficiency issue is analyzed on a standard of whether, viewing the
evidence in the light most favorable to the prosecution, a rational juror could
have found the essential elements of the crime beyond a reasonable doubt.
See People v. Taylor, 94 N.Y.2d 910, 911 (2000). Whether an erroneous jury
instruction is harmless, by contrast, is analyzed for whether “in light of the
totality of the evidence, there is no reasonable possibility that the [instructional]
error affected the jury’s verdict.” People v. Douglas, 4 N.Y.3d 777, 779 (2005).
The latter is plainly a far more favorable standard for an appellant.
Further, the evidence that Lynch possessed a dangerous instrument, while
less than overwhelming, was (as the Appellate Division ultimately concluded)
sufficient for a rational, properly instructed jury to convict him of first‐degree
robbery: Lynch said he had a gun, Tally‐Verstraten felt “something” being
shoved against her, and the Diazes identified Brandon, who had a gun, as the
here actually stated – at least with regard to the weight issue – that it was “[v]iewing the evidence in light of the elements of the crimes as charged to the jury.” Lynch I, 916 N.Y.S.2d at 409 (emphasis added).
27 person who was with Lynch at the gas station, and who, a reasonable jury could
infer, was with Lynch during the robbery. The instructional issue, by contrast,
was a clear winner. For the reasons discussed above, the legal error in the
instruction was plain, and the issue had been properly preserved. Moreover,
while the evidence may have been sufficient to allow a jury to convict under the
correct instruction, Lynch had a strong argument that a properly‐instructed jury
might well have had a reasonable doubt about whether he did have a gun: as
discussed more fully below, none of the witnesses saw a gun during the robbery,
Tally‐Verstraten did not believe Lynch actually had one, the evidence about the
struggle suggested it was unlikely that Lynch was holding a gun while snatching
Tally‐Vertraten’s purse with one hand and punching her with the other, and
Brandon denied having been present at the robbery or having possessed a gun in
any relation to Lynch. Nor are these arguments purely hypothetical: the jury
acquitted Lynch of the first‐degree charge that they were properly told did require
Lynch to be “armed” with a weapon, and the jury acquitted Brandon of
participating in the robbery. The sufficiency argument that appellate counsel
raised was accordingly “clearly and significantly weaker” than the “significant
and obvious issue[ ]” of the instructional error. Mayo, 13 F.3d at 533.
28 Respondent argues, however, that the omission of the instructional issue
from the appellate brief was strategic in any event, because counsel could have
made a reasonable strategic choice to raise only issues whose success on appeal
would result in dismissal of the indictment, rather than a new trial in which
Lynch could in theory have been exposed to a harsher sentence if re‐convicted.
Counsel manifestly did not follow such a strategy, however, since she raised an
evidentiary issue (regarding exclusion of the 911 call), which, if successful, would
have entitled Lynch only to a new trial. Forgoing the instructional issue therefore
could not have been a strategic choice to protect Lynch from the prospect of a
new trial and a higher sentence.9 Counsel’s failure to raise the instructional issue,
while pursuing other issues that were significantly weaker and had no strategic
benefit, fell below prevailing professional norms for an appellate attorney.
9 Obviously, counsel’s arguments regarding the convictions for second‐ degree robbery and the sentencing similarly offered no tactical advantage, as neither attacked the conviction on the top count. Absent a trial error requiring a new trial on all counts, Lynch could only avoid conviction and prison by identifying errors affecting each count of conviction. Obtaining reversal of the lesser convictions carrying lesser concurrent sentences would have little benefit to Lynch if the 12‐year sentence for first‐degree robbery remained in place.
29 B. Prejudice
The heart of the district court’s decision, however, and of the parties’
dispute, is Strickland’s prejudice prong. In order to find prejudice, we must
determine whether there is a reasonable probability that the outcome of the
appeal would have been different; in other words, whether the Appellate
Division likely would have concluded that the trial court’s failure to give the
possession instruction was error, and that the error was not harmless beyond a
reasonable doubt. See People v. Clyde, 18 N.Y.3d 145, 153 (2011) (noting that, for
errors of constitutional dimension, New York courts “apply [United States]
Supreme Court precedent in deciding whether the error is of a type that may be
harmless,” citing Chapman v. California, 386 U.S. 18 (1967)). We have already
concluded that the instruction was error. Consequently, the critical question in
this case is whether “in light of the totality of the evidence, there is no reasonable
possibility that the [instructional] error affected the jury’s verdict.” Douglas, 4
N.Y.3d at 779.10 The district court determined that Lynch was not prejudiced
10 Respondent argues that we should apply New York’s harmlessness standard for non‐constitutional error, namely, that an “error is harmless only when there is overwhelming proof of the defendant’s guilt and no significant probability that the jury would have acquitted the defendant were it not for the error.” People v. Robinson, 17 N.Y.3d 868, 870 (2011) (internal quotation marks
30 by appellate counsel’s failure to raise the instructional issue, because “the
evidence was legally sufficient for the jury to find that Lynch ‘actually possessed’
the handgun found later on [his] co‐defendant’s person.” Lynch II, 2014 WL
1600379, at *12. That was the wrong standard. The question is not whether the
evidence was sufficient to permit a conviction under the proper instructions – as
noted above, it was – but, rather, whether there is no reasonable possibility that
the failure to instruct on the possession requirement affected the jury’s verdict.
Analyzing that question in light of the evidence presented at trial and the jury’s
verdicts on the various counts leads inexorably to the conclusion that the error
was harmful.
First, the evidence that Lynch himself possessed a gun during the robbery
was minimal. Neither the victim nor the third‐party witnesses saw a gun in
Lynch’s possession during the robbery. Tally‐Verstraten testified that she felt
omitted). We disagree, because failure to instruct on an element of the offense is error of a constitutional dimension. See United States v. Tureseo, 566 F.3d 77, 86 (2d Cir. 2009). But even under the less exacting non‐constitutional error standard, the evidence here is not so overwhelming that, had counsel raised the issue, there is no reasonable probability that the outcome of the appeal would have been different.
31 Lynch “shove[] something” in her waist, which “[c]ould . . . have been his fist,”11
and that she looked down to see whether he had a gun and concluded that he did
not. Joint App’x at 176‐77. That conclusion was supported by the evidence that,
while Lynch was struggling with the victim over her purse with one hand, he
punched her with his other hand. Finally, in addition to Tally‐Verstraten’s
testimony that she did not believe Lynch had a gun, a reasonable jury could infer
from her courageous behavior – asking her assailant if he was kidding, pushing
him away, and refusing to let go of her purse – coupled with Lynch’s failure to
use or brandish a firearm in response, that Lynch did not possess a gun during
the robbery.
Moreover, the jury acquitted Lynch of the offense of first‐degree robbery
while armed with a deadly weapon. N.Y. Penal Law § 160.15(2). To be sure, the
jury’s decision to acquit Lynch of deadly‐weapon robbery, while convicting him
of dangerous‐instrument robbery, could be explained, as respondent urges, by
the fact that under New York law, a gun must be loaded to qualify as a deadly
weapon, whereas an unloaded gun could be a dangerous instrument if used as a
11 The testimony was not, as the district court stated, that Tally‐Verstraten felt “an object” pressed against her. Lynch II, 2014 WL 1600379, at *13.
32 bludgeon. See Resp’t’s Br. 29‐31. But that argument merely shows that the
evidence could have been sufficient to support the conviction. It remains possible
– indeed, it seems probable – that the jury distinguished between the trial court’s
instructions on the two counts because to be “armed with a deadly weapon,” Joint
App’x at 213 (emphasis added), on its face implies possession in its ordinary
meaning, while to “threaten[ ] the immediate use” of a dangerous instrument, id.
at 215, without the added instruction requiring possession, suggests that mere
threatening words are enough to convict.
Respondent argues, as the prosecutor did in summation, that the jury still
could have found possession based on the gun found on Lynch’s co‐defendant,
Rodney Brandon, during his arrest. We assume without deciding that an
accomplice’s possession of a dangerous instrument at or near the scene of the
robbery would meet the requirement of a defendant’s possession. The evidence,
taken in the light most favorable to the prosecution, was sufficient to permit a
reasonable jury to conclude that Brandon was the getaway driver, and that the
gun that was in his possession when he was arrested was in his possession in the
Family Dollar parking lot while Lynch was threatening his victim. But Brandon
testified, offering an alternative account of his activities, and claiming that he had
33 not been at the scene and had never even met Lynch. While that explanation
does not, on a cold record, sound very compelling, the fact is that the jury
acquitted Brandon of any role in the robbery. It is possible that the jury acquitted
Brandon for some other reason than a finding that he was not present at the
robbery, such as a lack of intent to rob, but either way, it did not find that he was
an accomplice.12 In light of that verdict, it can hardly be said that the
instructional error was harmless beyond a reasonable doubt. Lynch could only
threaten the immediate use of a gun in Brandon’s possession if the two were
acting in concert; Brandon’s acquittal indicates that the jury was not convinced
beyond a reasonable doubt that they were. Therefore, respondent’s contention
that the jury could have found possession of a dangerous instrument by Lynch
based on the gun later recovered from Brandon does not square with the jury’s
12 Respondent insisted at oral argument that the jury must have found that Brandon was present at the robbery because it convicted Lynch of robbery in the second degree, aided by another person. See N.Y. Penal Law § 160.10(1). But the evidence permitted the jury to find that Lynch was aided by another person, namely, the getaway driver, and that Brandon was not that person. In that case, the fact that Brandon was later found with a gun provides no evidence that a gun was actually present when Lynch committed the robbery.
34 verdict as to Brandon.13
At best, the evidence at trial was sufficient to convict Lynch of first‐degree
robbery under New York Penal Law § 160.15(3), but it was not so overwhelming
that there is no reasonable possibility that the failure to charge the jury on the
possession requirement affected its verdict on that count. The prejudice inquiry
in this case is not whether sufficient evidence existed to convict Lynch based on
his or Brandon’s possession of a weapon. The question is whether the Appellate
Division would likely have concluded that it could be certain, beyond a
reasonable doubt, that a properly instructed jury would have seen it that way.
13 Respondent also argues that even if Lynch did not actually possess a dangerous instrument, he could still be convicted on a theory of constructive possession. It is not clear that this is so. While “possession” under New York law generally includes constructive possession, N.Y. Penal Law § 10.00(8), the Court of Appeals in Ford refers to “actual possession,” 11 N.Y.3d at 878 (emphasis added) (internal quotation marks omitted), a term usually used in opposition to constructive possession, see, e.g., People v. Parazino, 366 N.Y.S.2d 440, 442 (1st Dep’t 1975) (“[T]he case is one of actual, as opposed to constructive possession . . . .”). Respondent noted at oral argument that the New York pattern jury instruction for first‐degree robbery requires that the jury find only “possession,” and the Court of Appeals cited this instruction approvingly in Grant, 17 N.Y.3d at 619 n.3. We need not decide whether constructive possession can suffice for a conviction under New York Penal Law § 160.15(3), because even assuming that it does, the jury could only find constructive possession by Lynch of a gun actually possessed by Brandon if it found that the two were accomplices in the robbery. It did not so find.
35 The actual jury, however, apparently did not see it that way, because it acquitted
Lynch of being armed with a deadly weapon and acquitted Brandon of any
involvement in the robbery. Based on the evidence presented at trial, and on the
jury’s verdicts, it is therefore clear that the trial court’s error was not harmless
beyond a reasonable doubt. Consequently, had counsel raised the instructional
error on appeal, there is a reasonable probability that the Appellate Division
would have reversed Lynch’s conviction for first‐degree robbery.
It is not enough, however, for us to conclude that, in our view, appellate
counsel provided ineffective assistance. Our review function in habeas cases is
limited; we may only grant the writ if the state courts’ denial of a petitioner’s
claim was an unreasonable application of clearly established federal law, as
determined by the holdings of the United States Supreme Court. 28 U.S.C.
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412‐13 (2000). That standard is
easily met here. The right to effective assistance of counsel on an appeal as of
right is firmly established by Supreme Court precedent. See Evitts, 469 U.S. at
396‐97; Anders v. California, 386 U.S. 738, 744 (1967). An appellate lawyer need
not raise every plausible claim and has a wide degree of professional discretion
to choose which issues to raise. See Jones, 463 U.S. at 754. But, to meet the
36 constitutional minimum of effective assistance, counsel’s performance, judged on
the facts of the particular case and viewed as of the time of counsel’s conduct,
must be within the range – wide though it is – of professional competence. Cf.
Smith v. Murray, 477 U.S. at 535 (concluding that counsel’s decision not to press
claim on appeal was not “an error of such magnitude that it rendered counsel’s
performance constitutionally deficient under the test of Strickland v.
Washington”).
The Appellate Division denied Lynch’s coram nobis petition without
opinion. In that circumstance, we must still defer to its decision, and deny relief
if there is any reasonable basis on which it can be found consistent with the
governing precedent. See Richter, 562 U.S. at 102. We have applied that
standard here. As discussed above, we have considered every argument that
respondent has offered and that we could ourselves hypothesize. Having
considered these arguments, we find no basis on which to conclude that a court
could reasonably determine that failing to raise a clearly meritorious claim of jury
instruction error that would likely lead to reversal of the most serious count of
conviction – accounting for a significant increase in the defendant’s sentence –
while raising other, weaker arguments, can be considered a strategic choice
37 within the wide range of decisions that constitute professionally competent
assistance. Nor can we conclude, given the minimal evidence of possession in
this case and the jury’s verdicts foreclosing nearly all possible alternative
explanations, that fairminded jurists could disagree as to whether there is a
reasonable probability that, had counsel raised the instructional issue, the
outcome of the appeal would have been different. See id. at 101. The Appellate
Division’s denial of Lynch’s coram nobis petition was therefore objectively
unreasonable, and the district court accordingly erred in denying his petition for
a writ of habeas corpus.
III. Relief
A final word as to appropriate relief. A federal habeas court is authorized
by Congressional statute to “dispose of the matter as law and justice require.” 28
U.S.C. § 2243; see Hilton v. Braunskill, 481 U.S. 770, 775 (1987); Simmons v.
Reynolds, 898 F.2d 865, 869 (2d Cir. 1990). In so doing, we are mindful of the
Supreme Court’s admonition that “Sixth Amendment remedies should be
tailored to the injury suffered from the constitutional violation and should not
unnecessarily infringe on competing interests.” Lafler v. Cooper, 132 S. Ct. 1376,
1388 (2012) (internal quotation marks omitted). “Thus, a remedy must neutralize
38 the taint of a constitutional violation, while at the same time not grant a windfall
to the defendant or needlessly squander the considerable resources the State
properly invested in the criminal prosecution.” Id. at 1388‐89 (internal quotation
marks and citation omitted).
In general, the appropriate remedy for ineffective assistance of appellate
counsel is to grant a new appeal. See, e.g., Claudio, 982 F.2d at 806; but see
Ramchair v. Conway, 601 F.3d 66, 78 (2d Cir. 2010). We do so here. However,
because Lynch has already served a 10‐year term of imprisonment, which, for the
reasons discussed above, was properly imposed for his convictions for second‐
and third‐degree robbery, he remains incarcerated solely on the flawed first‐
degree robbery conviction. Thus, if we simply ordered a new appeal without
more, Lynch would remain imprisoned based on a conviction that the Appellate
Division is likely to reverse, after an appeal that could easily consume much of
the time remaining on his sentence for the first‐degree robbery conviction.
Accordingly, in light of the unusual circumstances of this case and the prolonged
delay in Lynch’s first direct appeal, we instruct the district court to order Lynch
released pending his new appeal. See Matthis v. Hood, 937 F.2d 790, 796 (2d Cir.
1991).
39 CONCLUSION
For the foregoing reasons, we REVERSE the judgment of the district court,
and REMAND the cause, with instructions to issue a writ of habeas corpus,
unless, within one week of our mandate, the State (1) moves to vacate the prior
judgment of the New York Supreme Court Appellate Division, Fourth
Department, to the extent that judgment affirmed Lynchʹs conviction for
first‐degree robbery; (2) consents to the reinstatement of Lynch’s direct appeal;
(3) certifies that Lynch has been released from custody pending the
determination of that appeal; and (4) consents that, absent a reason for
confinement that does not depend on his conviction for first‐degree robbery,
Lynch shall remain at liberty pending further order by the Appellate Division.
The mandate shall issue forthwith.