Boria v. Keane

Decision Date17 July 1996
Docket NumberNo. 1332,D,1332
Citation90 F.3d 36
PartiesOscar BORIA, Petitioner-Appellant, v. John KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee. ocket 95-2688.
CourtU.S. Court of Appeals — Second Circuit

Before OAKES and PARKER, Circuit Judges, and KNAPP, District Judge.

PER CURIAM:

Oral argument 1 occurred in this case on March 29, 1996. The panel issued its decision on May 3, 1996. The panel concluded, and continues to hold, that Oscar Boria's lawyer failed to meet the minimal requirements of constitutional competency when he failed to give his client any advice as to the wisdom of accepting or rejecting the state's initial plea offer, which, if accepted, would have resulted in a sentence of one to three years. Lacking such counsel, Boria rejected the plea offer. Upon his rejection, the state re-charged Boria with a more serious crime. Boria was convicted at trial and sentenced to twenty years to life. Our initial opinion in this case, 83 F.3d 48, held (1) Boria was deprived of his constitutional right to effective counsel, and (2) under the circumstances of this case that deprivation resulted in prejudice to Boria. 2 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The state has petitioned for rehearing. The state argues in its petition that the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132, (hereafter "the new statute") which was signed into law on April 24, 1996, applies to this case and that the new statute's changes in the law of habeas corpus warrant a different outcome. Section 104 of the new statute states in relevant part that the writ of habeas corpus shall not be granted unless the state court adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

The state argues in its petition that the state court proceedings did not violate a clear pronouncement of the United States Supreme Court, notwithstanding the portion of Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), which the initial opinion contains. Boria, pursuant to our order, submitted responsive briefing on the issue of the applicability of the new statute. We summarily reject the state's other arguments in its petition for rehearing.

In this case Boria suffered incompetent counsel prior to the passage of the new act. Furthermore, collaterally attacking his sentence was Boria's only means of vindicating his right to effective counsel. Assuming, without deciding, that the new statute would require a different outcome, application of the new statute to these circumstances would be retroactive. See Landgraf v. USI Film Products, 511 U.S. 244, ----, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994) ("the court must ask whether the new [statute] attaches new legal consequences to events completed before its enactment.").

Because application of the new statute to this case would be retroactive, the next step is to discern whether Congress intended the new statute to apply retroactively. This inquiry is guided by the presumption, "deeply rooted in our jurisprudence," that absent some clear signal from Congress, a statute will...

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74 cases
  • Satcher v. Netherland
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 8 d2 Outubro d2 1996
    ...Second and Tenth Circuits, have held that the Chapter 153 Amendments are not applicable to pending petitions. See Boria v. Keane, 90 F.3d 36, 38 (2nd Cir.1996) (per curiam) ("While Congress has spoken clearly in some portions of the new statute with respect to the application of the statute......
  • Sparman v. Edwards, 95-CV-4689 (JG).
    • United States
    • U.S. District Court — Eastern District of New York
    • 2 d4 Outubro d4 1997
    ...Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) [hereinafter "1996 Act"], does not apply retroactively. Boria v. Keane, 90 F.3d 36 (2d Cir.1996). Therefore, respondent's contention that the 1996 Act's procedural bars and heightened standards of review for habeas corpus proce......
  • Burris v. Parke
    • United States
    • U.S. District Court — Northern District of Indiana
    • 26 d4 Dezembro d4 1996
    ...Tenth Circuits, on the other hand, have held that the AEDPA's changes to § 2254 are not to be applied retroactively. See Boria v. Keane, 90 F.3d 36, 37-38 (2d Cir.), petition for cert. filed, 65 U.S.L.W. 3342 (Oct. 11, 1996); Edens v. Hannigan, 87 F.3d 1109, 1112 n. 1 (10th Cir.1996). Addit......
  • Kowalczyk v. US
    • United States
    • U.S. District Court — Eastern District of New York
    • 21 d3 Agosto d3 1996
    ...in petitions brought pursuant to 28 U.S.C. § 2254 in non capital cases. Two days later, a different appellate penal, in Boria v. Keane, 90 F.3d 36 (2d Cir.1996) on a petition for rehearing by the State, held that the Act provides no indication that Congress intended that it apply to pending......
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1 books & journal articles
  • Padilla v. Kentucky: sound and fury, or transformative impact.
    • United States
    • Fordham Urban Law Journal Vol. 39 No. 1, November 2011
    • 1 d2 Novembro d2 2011
    ...to worry about immigration status since he had been in the country so long." Padilla, 130 S. Ct. at 1478. (27.) See, e.g., Boria v. Keane, 90 F.3d 36, 37-38 (2d Cir. 1996) (holding that in addition to conveying any plea offer to the accused, defense counsel was also required to offer an inf......

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