Habeas Corpus - Summary Order (From Yesterday)

Barnes v. Burge, 08-5478-pr, April 21, 2010, available here

  • Affirming Denial of Habeas
  • Panel: Livingston, Lynch
  • Argued: 3/5/10
  • Issues: IAC based on counsel's failure to investigate witnesses, including one witness, who claimed that petitioner was not involved in the crime for which he was convicted

ANALYSIS: Lengthy summary order. Mostly just an analysis of the substance of the claims.

Two quick notes: First, the panel was only two judges because Pooler was originally a member of the panel, but did not participate in the decision.

Second, this is the first time that I have seen the Second Circuit cite the recent Supreme Court decision in Wong for the broad view of prejudice I was worried about when I read that decision. Here's the quote from the summary order:

In assessing prejudice stemming from the failure to investigate and introduce certain evidence, a court must consider “all the relevant evidence that the jury would have had before it” had the evidence been introduced, including unfavorable evidence. Wong v. Belmontes, 130 S. Ct. 383, 386 (2009) (per curiam) (emphasis in original).

As I said at the time of Wong, that's an expansive view of prejudice. I can't say that it's necessarily wrong in all situations, particularly this one where the alleged ineffectiveness was a failure to investigate. But I still believe that this statement in Wong is broader than any prior statement from the Court.