Lynch v. Dolce
| Decision Date | 18 June 2015 |
| Docket Number | Docket No. 14–1675–pr. |
| Citation | 789 F.3d 303 |
| Parties | Robert A. LYNCH, Petitioner–Appellant, v. Superintendent DOLCE, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
789 F.3d 303
Robert A. LYNCH, Petitioner–Appellant
v.
Superintendent DOLCE, Respondent–Appellee.*
Docket No. 14–1675–pr.
United States Court of Appeals, Second Circuit.
Argued: May 7, 2015.
Decided: June 18, 2015.
Malvina Nathanson, New York, N.Y., for petitioner-appellant.
Michelle E. Maerov, Assistant Attorney General (Barbara D. Underwood, Solicitor
General, Nikki Kowalski, Deputy Solicitor General for Criminal Matters, on the brief) for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for respondent-appellee.
Before: LEVAL, LYNCH, and DRONEY, Circuit Judges.
Opinion
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 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.
BACKGROUND
I. The Crime
On October 28, 2004, Rachel Tally–Verstraten drove to the Family Dollar store in Rochester, N.Y., 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 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 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—
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 robbery. For authority, counsel cited the decision of the New York Court of Appeals in People v. Pena, 50 N.Y.2d 400, 429 N.Y.S.2d 410, 406 N.E.2d 1347 (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.
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