JACK WEINSTEIN, Senior District Judge
On November 29, 2004, pursuant to the Court of Appeals for the Second Circuit's mandate, Cox v. Donnelly, 387 F.3d 193 (2d Cir. 2004), an evidentiary hearing was held to allow petitioner's state trial counsel, Mark Potashnick, to explain his performance as required by Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998). Incorporated in this memorandum by reference are the prior opinion of the court, Cox v. Donnelly, 267 F. Supp. 2d 418 (E.D.N.Y. 2003), and the analysis of the Court of Appeals for the Second Circuit, Cox, 387 F.3d 193.
Petitioner's argument for habeas relief was that counsel was ineffective for failing to object to the state trial court's erroneous instruction on "intent to kill," which had shifted the burden of proof from the prosecution onto him in violation of the Supreme Court's established precedent in Sandstrom v. Montana, 442 U.S. 510 (1979).
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. To prevail on an ineffectiveness of counsel claim, petitioner must show that (1) "counsel's representation fell below an objective standard of reasonableness," Strickland v. Washington, 466 U.S. 668, 688 (1984), and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. "A `reasonable probability' is `a probability sufficient to undermine confidence in the outcome.'" Id. Strategic choices made by counsel after thorough investigation of the facts and law, however, are "virtually unchallengeable." Id. at 690; see also Pavel v. Hollins, 261 F.3d 210, 218 (2d Cir. 2001) (defining a strategic decision as a "conscious, reasonably informed decision made by an attorney with an eye to benefitting his client").
The court found petitioner's state trial counsel credible on his recollection of the facts, but not on his evaluation of the case. Counsel's evaluation of the case is provided in the excerpt of the transcript below:
The Court: I'm going to put it to you flatly in terms of the Court of Appeals' decision in Cox v. Donnelly decided October 22nd, 2004, docket number 03-2440, page 7141 on the slip sheets; I'm reading from 7154 and 7155, the Court says: Where counsel, for no strategic reason, repeatedly fails to object to a clearly unconstitutional charge on the key issue in a criminal case, the rejection of an
ineffectiveness claim on that basis simply cannot be viewed as reasonable.
You read that, didn't you.
The Witness: Yes, Your Honor.
The Court: Did you have any strategic reason for failing to object?
The Witness: Have any strategic reason not to object?
The Court: Yes, or failing to object?
The Witness: Failing to object, I can answer that in two ways; I didn't realize at the time that it was an improper charge and if I had known it was an improper charge, I would have objected but based on the facts of this case, it really didn't matter that much.
[The Court]: Okay. I understand that position.
Then the Court says, and I'm paraphrasing it at 7154 to 7155, I'm putting it in the form of a question: Are you able to offer an explanation to defeat the conclusion that your performance was a result of ignorance?
The Witness: Yes.
The Court: What is that?
The Witness: It didn't matter. In that particular case, in this particular case at that particular time based on my client's wishes and the way I saw the case, it really didn't matter if the judge charged them that he intended to kill him or he didn't because there was no downward from there, there was nothing to fall back on, it was either an all or nothing. So, in my mind at the time if I knew it was a patently improper charge, I believed at the time it came right out of the New York State charge book, which I think it did, I'm not sure, I would have objected if I knew it was an improper charge but based on this entire trial, if the judge had said Rodney intended to kill him, it really didn't matter if the judge had said that, it really didn't matter in regard to what happened in that bedroom at that time, was he protecting himself, was he trying to do whatever he humanly could to get out of that room and so I guess it's — I didn't realize it was an improper charge. Would it have mattered much in my thinking, I don't think so.
The Court: But would you have objected if —
The Witness: If I knew it was improper, yes.
. . . .
The Court: So, you didn't think you could possibly argue that he didn't intend to fire with the threat and the firing happening accidentally or without any intent to fire?
The Witness: Could I have argued that?
The Court: Yes, if you had an intent charge?
The Witness: In my mind and having the videotape of Rodney's confession I would have been saying something that's not true because Rodney told me and he confessed to the police, it was on video that he did shoot him, that he intended to shoot him.
The Court: That he deliberately intended to pull the trigger?
The Witness: Right. So, having a videotape and having the other tape, having a written — I forgot if he wrote a confession.
The Court: Yes, okay.
The Witness: I couldn't do that.
The Court: Okay. I understand.
Is the record now complete?
Ms. Brodt: I believe so, Your Honor.
Mr. Joselson: I believe so, Your Honor.
Tr. of Nov. 29, 2004 ("Tr."), at 25-27, 28-29.
As shown above, counsel had no strategic reason for repeatedly failing to object to a unconstitutional charge on the key issue of intent to kill at petitioner's criminal trial. By his own admission, his failure to object was due to his ignorance of the law on point. Thus, he could not offer an explanation to defeat the conclusion that his failure to object was a result of ignorance. See Cox, 387 F.3d at 201 ("We concede that it is unlikely that counsel will be able to offer an explanation to defeat the conclusion that his performance was a result of ignorance. . . ."). At best, counsel's only "explanation" addressed the prejudice prong of Strickland, i.e., it would not have mattered whether he had objected to the unconstitutional charge. The court's conclusion that the performance prong of Strickland is satisfied remains unrefuted. See Cox, 267 F.Supp. 2d at 424-25; see also Cox, 387 F.3d at 199 ("Instead, on the evidence in the record before us and in the absence of any reasonable explanation by Cox's counsel for his actions, we must conclude that his failure to object to the unconstitutional instruction led to representation that fell below the prevailing norms of the legal profession and that his performance was objectively unreasonable." (emphasis added)).
The court respectfully disagrees — and makes a finding accordingly — with the learned state counsel for petitioner that a proper charge on intent would not have had any impact on the outcome of the trial. The relevant portion of the transcript is as follows:
Q: I just want to draw your attention to the sentencing minutes on page 23. You put in your appeal to the judge to give a less than the maximum sentence, to give the 15 years, when Mr. Cox himself was talking about how he felt justified, when you were talking about the circumstances of the case you also mentioned to the court a conversation you had with the jurors after the verdict; is that correct?
A: Yes.
Q: And what was that conversation?
A: I almost never talk to the jurors but in this particular case they came out just where I was in the Jamaica courthouse and I asked them what they thought and there was a couple of them that were in tears and they actually said to me if there had been one word of justification they would have never found him guilty of the charge.
Q: So, the jury — how many jurors approximately; you mentioned in the sentencing minutes seven out of twelve?
A: Seven, yeah.
Q: So, when the jury struggled with the verdict as it did when it sent back for charges, when it asked for the charge on the mens rea in the case, is it your position that they were wrestling between an intentional or an unintentional act?
A: No, it was — my opinion is that they were wrestling whether to not convict him at all, that his act was justified, or to convict him.
Q: And having not been charged with justification, would you say that given your experience with juries and the way they think and the way they acquit when you sometimes expect them to convict and the way they convict when you sometimes expect them to acquit, that they were looking through the intent charge for a way to find that justification would nullify the intent somehow?
A: I think they were looking for any way they could not to convict him based on the facts of this case.
Tr. at 17-19.
The facts of the case as well as counsel's testimony that after the verdict a number of jurors were crying and indicated that they looked for a method of acquittal, id. at 18-19, strongly suggests that had the intent issue been properly posed it would have provided a vehicle for at least these jurors to express their sentiments favoring petitioner. There is a high probability that a proper charge would have resulted in either a finding of not guilty or a hung jury. Whether a favorable verdict or disagreement would have constituted nullification is not significant as the matter is now posed in this habeas corpus petition. Cf., e.g., Kaimipono David Wenger David A. Hoffman, Nullificatory Juries, 2003 WIS. L.REV. 1115, 1148-56 (discussing the value of jury nullification, including its protective function against government oppression and its equitable function of ensuring that laws are fairly applied to particular individuals; see authorities cited). But see Strickland, 466 U.S. at 694-95 ("In making the determination whether the specified errors resulted in the required prejudice, a court should presume . . . that the . . . jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like." (emphasis added)).
The state courts' denial of petitioner's appeal based on ineffective assistance of counsel was an objectively unreasonable application of Strickland. See Bell v. Cone, 535 U.S. 685, 698-99 (2002) (requiring for habeas relief, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), that a petitioner show that the state court applied Strickland to the facts of his case "in an objectively unreasonable manner"); see also Zappulla v. New York, No. 03-2793, 2004 WL 2601682, at *4 (2d Cir. Nov. 17, 2004) (holding that, "in reviewing a state court's harmless error determination, [the federal court] only may reverse determinations that are objectively unreasonable" and requiring the state to prove "beyond a reasonable doubt" that the error did not contribute to the verdict).
This court, following a hearing, and on the record finds it highly probable that petitioner's constitutional right to effective assistance of counsel was violated and that this violation was caused by the ignorance of petitioner's counsel. It finds it probable that a constitutional charge would probably have had an impact on the jury and the verdict.
The petition for a writ of habeas corpus is granted. The petitioner shall be released unless within sixty days the state commences prosecution or takes other action appropriate in light of this decision. This decision is stayed until all appellate proceedings are completed and a final mandate is received by this court.
SO ORDERED.