judgment of conviction at trial. Grate had a winnable Batson claim on his
hands, thanks to the efforts of his trial counsel to preserve his
objection and the fact that the trial court did not comply with Batson
because it was not yet the law at the time of Grate's trial. Once it
became clear that Grate could take advantage of the rule announced in
Batson on direct appeal, therefore, it became constitutional error for
Grate's appellate lawyer to decline to advance that claim, particularly
in light of the arguments that were ultimately made by that attorney,
which were without merit and which would have been subject to harmless
error analysis even had they been meritorious. In light of this
constellation of factors that was clear at the time Grate's appellate
counsel prosecuted the direct appeal, it was not only erroneous for the
Second Department to reject Grate's claim of ineffective assistance, it
was unreasonable. See Francis S. v. Stone, 221 F.3d at 111 ("Some
increment of incorrectness beyond error is required [under section
2254(d)(1)]. We caution, however, that the increment need not be
All of Grate's claims save one are without merit. The one claim that is
meritorious, however, compels this Court to conclude that the Second
Department's resolution of that claim in rejecting Grate's motion for
writ of error coram nobis represented an unreasonable application of
clearly established federal law, specifically the Supreme Court's
decision in Strickland v. Washington. The decision of the Second
Department, therefore, violates 28 U.S.C. § 2254 (d)(1).
Accordingly, the Court GRANTS Grate's petition for writ of habeas
corpus [Docket No. 1], unless the government within 90 days of this order
either allows him an opportunity to present an appeal to the appropriate
state court as if the Batson issue had been properly presented, or
provides Grate with a new trial. See Mayo, 13 F.3d at 537 (approving of
this form of relief after ruling that petitioner's claim of ineffective
assistance of appellate counsel entitled him to relief).
*fn2 Ross held that prisoners whose convictions became "final" before
April 24, 1996 — the date that AEDPA, which instituted the one-year
limitations period for section 2254 petitions, became effective —
have a one-year grace period in which to file a section 2254 petition.
That is, so long as such prisoners file their petitions on or before
April 24, 1997, their petitions are not time-barred. Ross, 150 F.3d at
103. Grate's conviction became final, at the latest, on March 19, 1990,
when the Second Department denied his Pequest for leave to appeal further
to the New York Court of Appeals, Schwarz Aff. in Opp'n to Pet. ¶ 11
("Schwarz Aff."). Grate is thus entitled to the benefit of the one-year
grace period established by Ross. Judge Scybert ruled that Grate's
petition was filed on April 21, 1997, the date on which Grate signed the
petition and presumably handed it to prison officials to be mailed to the
Court, Seybert Mem. at 6, three days before the end of the grace period
established by Ross.
*fn3 This last proposition of law, although unquestionably correct at
the time Judge Seybert issued her Memorandum and Order, is no longer
correct, as the Supreme Court held in Duncan v. Walker, 533 U.S. 167, 121
S.Ct. 2120, 150 L.Ed.2d 251 (2001), that time during which a habeas
petition sits in federal court awaiting resolution does not toll the
limitations period for section 2254 petitions; only time spent pursuing
"post-conviction or other collateral review" in state court so tolls the
limitations period. Id. at 181-82, 121 S.Ct. 2120.
Does this mean that Judge Seybert was wrong to let Grate's petition get
beyond the statute-of-limitations hurdle? Certainly not then, and, in
this Court's view, not now. There are two reasons why this is so. First,
the Second Circuit has observed that the limitations period for section
2254 petitions set out in 28 U.S.C. § 2244 (d)(1) is a statute of
limitations, rather than a jurisdictional bar to suit. Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). This is significant for a
number of reasons, one of which is that a statute of limitations is an
affirmative defense that may be waived. E.g., Kropelnicki v. Siegel,
290 F.3d 118, 130 n. 7 (2d Cir. 2002) (citing Fed.R.Civ.P. 8(c)).
Although the government vigorously litigated the statute of limitations
defense earlier in the lawsuit, it has acquiesced in the ruling of Judge
Seybert on the statute of limitations issue by filing an opposition to
Grate's petition on the merits on June 5, 2002 — almost one year
after the decision by the Supreme Court in Duncan. This Court therefore
considers the respondent to have waived any objection to Grate's petition
on statute-of-limitations grounds.
Second and more important, however, is that Judge Sevbert's ruling,
though relying on a since-reversed Second Circuit decision, Walker v.
Artuz, 208 F.3d 357 (2d Cir. 2000), recognized the inequity that would
result from failing to consider a petition like Grate's on the merits.
Seybert Mem. at 8-10. In response to the Supreme Court's decision in
Duncan, the Second Circuit echoed this concern, ruling in Zarvela v.
Artuz, 254 F.3d 374 (2d Cir. 2001), that district courts confronted with
"mixed petitions" — petitions presenting unexhausted along with
exhausted claims — such as the one presented by Grate (because of
his unexhausted ineffective assistance/Batson claim) should usually
stay, rather than dismiss, the exhausted portion of the petition to allow
the petitioner a reasonable period of time (typically 30 days) to return
to state court to exhaust the previously-unexhausted claims. U. at
380-82. Had Duncan and Zarvela been extant at the time Grate realized
that he had an unexhausted claim, he no doubt would have asked for a
stay, rather than an outright dismissal, see Docket No. 16 (Letter from
Grate to Judge Seybert requesting dismissal), of his habeas petition
pending exhaustion of his ineffective assistance-Batson claim in state
court. Instead, Grate got caucht in the middle of a legal regime change
with respect to the rules governing the time limits for 2254 petitions
that made it difficult, if not impossible, to perfect his mixed petition
in a timely manner. Such a regime change ought not prevent him from
having his petition heard on the merits. See Zarvela, 254 F.3d at 383
("Under the circumstances, especially as the implementation of AEDPA's
limitation requirements is being developed, we do not think this pro se
litigant should lose his opportunity to present his constitutional
challenge to his conviction because he requested the wrong form of
procedural relief."). This Court follows Zarvela's reasoning.
*fn4 The government is incorrect as matter of law that a defendant need
object to the voluntariness of a confession at a suppression hearing and
at trial. The government cites section 470.05(2) of the New York Criminal
Procedure law for the proposition that Grate's failure to object to
admission of his confession at trial imposed a procedural bar to
appellate review of the issue. Resp't's Opp'n at 13. This Court does not
read that provision to require a defendant to object to the admission of
an allegedly coerced confession at trial, at least where the defendant
has challenged the admissibility of the statement at a suppression
hearing and lost. The provision requires only that the party claiming
reversible trial error on appeal register such objection with the trial
court "during a trial or proceeding," N.Y.Crim. Proc. Law § 470.05(2)
(emphasis added). The New York Court of Appeals has observed that this
section requires that "any matter which a party wishes the appellate
court to decide have been brought to the attention of the trial court at
a time and in a way that gave the latter the opportunity to remedy the
problem and thereby avert reversible error." People v. Luperon,
85 N.Y.2d 71, 78, 623 N.Y.S.2d 735, 647 N.E.2d 1243 (1995). Grate gave
the trial court an opportunity to avert reversible error before admitting
his confession at trial by raising the issue at a suppression hearing.
Having lost the issue at the suppression hearing, it was not necessary
for Grate to revive his objection to the statement at trial in order to
preserve the issue for appeal. As the United States Supreme Court noted
with respect to this provision of the New York Criminal Procedure Law,
"once a protest is made, it need not be repeated at each subsequent
disposition of the matter." County Court v. Allen, 442 U.S. 140, 150 n.
8, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Federal law is now the same.
*fn5 A state conviction may also be overturned if a legal determination
made by the state court was "contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the United States,"
28 U.S.C. § 2254 (d)(1). This provision is not at issue here, as the
Court concludes that the state trial court applied the correct legal
framework — the "totality of the circumstances" voluntariness
standard from Supreme Court case law, e.g., Schneckloth v. Bustamonte,
412 U.S. 218, 225-27, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) — even
if it did not identify that framework by name or citation.
*fn6 The Supreme Court in Williams declined to state with greater
precision when a decision by a state court involves an "unreasonable"
application of Supreme Court case law, but expressed confidence that the
word unreasonable "is a common term in the legal world" with which most
federal judges are familiar and could apply easily. 529 U.S. at 410, 120
S.Ct. 1495. The Second Circuit has advanced the ball slightly in this
respect, holding in Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000),
that although "[s]ome increment of incorrectness beyond error is required
the increment need not be great," lest habeas be limited to overturning
state court decisions so far off the mark as to suggest judicial
incompetence," id. at 111 (citation omitted).
*fn7 The Suppression Hearing Transcript is apparently misnumbered; there
are two pages in a row numbered "283." This reference can be found on the
first page numbered 283.
*fn8 This reference can be found on both pages numbered "283."
*fn9 This reference can be found on the second page numbered "283."
*fn10 In order for a Supreme Court decision to be part of the relevant
case law that a state court is to apply under section 2254(d)(1), the
decision must have been extant "as of the time of the relevant
state-court decision." Williams, 529 U.S. at 412. 120 S.Ct. 1495. Here,
the relevant state court decision is that of the Second Department, which
was issued on November 13, 1989. Grate, 155 A.D.2d at 553,
547 N.Y.S.2d 584.
*fn11 According to the transcript, each party was entitled to twenty
peremptory challenges. Id. at 21.
*fn12 The cover sheet of the transcript erroneously refers to this day,
too, as December 2, 1985. The minutes make clear, however, that this day
was in fact December 3, 1985. See id. at 28.
*fn13 This transcript has two pages in a row numbered "46." This
reference can be found on the first of those two pages.
*fn14 This undermines the government's contention in its opposition to
Grate's second motion for writ of error coram nobis that Grate's trial
counsel "never requested below that the prosecutor provide race-neutral
reasons" for the peremptory challenges. Resp't's Opp'n Ex. 8, Memorandum
*fn15 The Court focuses on the legal regime that was in place at the
time Grate's appellate counsel filed his brief on Grate's behalf, because
in assessing the effectiveness of counsel, it is important to consider
only the legal rules that were extant at the time counsel took the action
(or inaction) alleged to be constitutionally deficient. Smith v. Murray,
477 U.S. 527, 536, 106 S.Ct. 2661, 91 L.Ed.2d 434 (1986); Mayo v.
Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
*fn16 To be sure, Mayo is not a Supreme Court case, and Supreme Court
cases are what matter in determining whether a state court unreasonably
applied "clearly established federal law," 28 U.S.C. § 2254 (d)(1), as
this Court must do with respect to the decision of the Second Department
rejecting Grate's coram nobis petition. But as the Supreme Court
suggested in Williams v. Taylor, with respect to claims of ineffective
assistance of counsel, it matters only that the framework laid down in
Strickland is "clearly established," not that a particular analysis of
what constitutes ineffective assistance is "clearly established."
Williams, 529 U.S. at 391, 120 S.Ct. 1495; accord Sellan v. Kuhlman,
261 F.3d 303, 309 (2d Cir. 2001) ("[F]or AEDPA purposes, it matters only
that the Strickland performance and prejudice test has been "clearly
established — not that a particular theory of ineffective
assistance has been clearly established.").
*fn17 One of the black jurors challenged by the prosecution in Scott
bore a characteristic identical to a black prospective juror challenged
by the prosecutor (albeit for cause) in Grate's case. The black juror in
Scott was challenged by the prosecutor because her brother-in-law was
"killed as the result of an assault" in a case involving murder and
robbery. Id. at 424, 522 N.Y.S.2d 94, 516 N.E.2d 1208. Defense counsel
argued that "any bias she might have would favor the victims of violent
crime, and thus the prosecution." Id. Similarly, in Grate's case the
district attorney challenged a black woman for cause because her sister
was murdered, Voir Dire Tr. at 25, a fact which, if it made the juror
biased, would presumably make her biased in favor of the
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