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Federal courts must continue to use a deferential standard of review when eyeing state court criminal convictions—even when they elect to conduct additional factfinding on a habeas petition, according to the U.S. Court of Appeals for the Second Circuit. Deciding a case of first impression, the Second Circuit said the deferential standard mandated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), still applies where courts handling a petition for a writ of habeas corpus hold hearings to look more closely into a state trial. Nonetheless, even after deferring to the state on its review, the circuit concluded that the defendant’s rights had been so compromised by the inadequate performance of his counsel at trial that he be released or retried. Judges John M. Walker, Jr., Jose A. Cabranes and Reena Raggi decided the appeal in Wilson v. Mazzuca, 03-2459-pr. Judge Cabranes wrote for the panel. The Second Circuit decision was published July 1 on page 25 of the print edition of the Law Journal, Editor’s Note: This article has been updated to reflect a Correction. George Wilson was seeking habeas review from his state court conviction for the 1992 gunpoint robbery of a scrap metal business in Queens, a conviction he said would not have been reached without ineffective assistance of counsel. Shortly after the robbery on Dec. 22, 1992, Mr. Wilson’s photo was picked out of a mug shot book by the victim, business-owner Roger Erra. Almost two years later, on Oct. 27, 1994, Mr. Wilson was arrested on an unrelated crime. The next day, Mr. Erra picked Mr. Wilson out of a lineup. At trial before Queens County Supreme Court Justice Charles LaTorella (See Profile), defense attorney Frank GaNun opened by asking the jury for acquittal based on mistaken identity and insufficient police investigation. During cross-examination of Mr. Erra, Mr. GaNun elicited details about the police investigation and why Mr. Erra initially failed to appear in court. Mr. Erra responded he feared Mr. Wilson would retaliate against him for testifying. Justice LaTorella ruled that these lines of inquiry opened the door to the admission of Mr. Erra’s initial identification of Mr. Wilson. The defense attorney objected, but nonetheless insisted that, if the mug shot were to come into evidence, he did not want the booking plate redacted. Later, on cross-examination of a police officer, Mr. GaNun introduced the unredacted report from Mr. Wilson’s 1994 arrest for attempted grand larceny and menacing with pipes. Justice LaTorella, at the close of the prosecution’s case, raisedsua sponte the issue of ineffective assistance of counsel, saying “alarm bells are ringing in my head.” The defense attorney reassured the judge that he had a defense strategy and the judge al-lowed him to proceed. After thejury found him guilty, Mr. Wilson was sentenced to 91/2 years in prison. His conviction was upheld on appeal. Eastern District Judge David G. Trager denied Mr. Wilson’s petition for a writ of habeas corpus, adopting the report and recommendation of Magistrate Judge Robert M. Levy after conducting his own independent review. The Second Circuit reversed in 2005 and remanded for additional factfinding to give Mr. GaNun a chance to explain his performance. This time, Magistrate Judge Levy conducted additional factfinding and questioned Mr. GaNun, who has been retired for six years now, and recommended a finding of ineffective assistance. Judge Trager for the most part agreed but ruled there was no prejudice to Mr. Wilson. Standard Remains in Force Back at the Second Circuit, Judge Cabranes held that the Antiterrorism and Effective Death Penalty Act’s standard of review, intended by Congress to limit federal review of state court decisions, “remains in force,” despite the additional factfinding. Judge Cabranes described as “not conditional” the act’s standard of review, one that requires federal courts to presume the state court was correct and places the burden on an appellant to show unreasonable application of clearly established federal law by clear and convincing evidence. Despite the deferential review, Mr. Wilson prevailed, as the circuit ordered the habeas petition be granted because Mr. Wilson Sixth Amendment right to counsel was clearly violated. Judge Cabranes said the court did not have confidence “that the outcome reached by the jury in this case was reliable.” Not only was the prosecution’s case weak, Judge Cabranes said, but Mr. GaNun made several errors that could not be justified as part of a defense strategy. First, he asked whether Mr. Erra feared retaliation and then asked “the open-ended question ‘Why?’,” Judge Cabranes said. Mr. GaNun opened the door to the admission of the initial identification despite being warned by the trial judge, failed to object to the prosecution’s continued reference to photographs of Mr. Wilson as “mug shots,” and declined the judge’s offer to redact the booking plate, Judge Cabranes said. He introduced evidence of a prior arrest, including a non-redacted copy of the police report, Judge Cabranes said, adding that the “trial court’s astonishment is manifest from the record.” And Mr. GaNun “opened the door to the admission of Mr. Wilson’s criminal history by calling a witness to testify about Wilson’s reputation in the community,” the judge said. Erik C. Bierbauer and John A. Laufer of Debevoise & Plimpton represented Mr. Wilson. Assistant Attorney General Malancha Chanda represented the state. @

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