90 F.3d 36 (2nd Cir. 1996), 1332, Boria v. Keane

Docket Nº:1332, Docket 95-2688.
Citation:90 F.3d 36
Party Name:Oscar BORIA, Petitioner-Appellant, v. John KEANE, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee.
Case Date:July 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 36

90 F.3d 36 (2nd Cir. 1996)

Oscar BORIA, Petitioner-Appellant,

v.

John KEANE, Superintendent, Sing Sing Correctional Facility,

Respondent-Appellee.

No. 1332, Docket 95-2688.

United States Court of Appeals, Second Circuit

July 17, 1996

Submitted May 17, 1996.

Page 37

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,...

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