Lynch v. Superintendent Dolce, No. 14-1675 (2d Cir. 2015)
Annotate this CasePetitioner, convicted of first degree robbery, appealed the denial of his petition for a writ of habeas corpus, alleging that he received ineffective assistance of appellate counsel. Petitioner alleged that counsel's failure to raise the trial court's refusal to give a requested charge to the jury - that to find petitioner guilty of first-degree robbery by using or threatening the immediate use of a dangerous instrument, it had to find that petitioner actually possessed a dangerous instrument at the time of the crime - was error. The court concluded that 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; given the weakness of the evidence that petitioner 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 the conviction on the most serious count; and, applying the correct standard, and in light of the evidence at trial and the pattern of the jury’s verdicts, the court concluded that the state courts’ dismissal of petitioner’s claim was an unreasonable application of clearly established federal law, and that his appellate counsel provided constitutionally ineffective assistance. Accordingly, the court reversed and remanded.
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