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Univ. of South Carolina School of Law

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Thursday, December 11, 2008

Good Habit?: 2nd Circuit Finds That Magistrate Judge Properly Considered Attorney Habit Evidence In Habeas Appeal

As is evident from the recent opinion of the Second Circuit in Carrion v. Smith, 2008 WL 5120120 (2nd Cir. 2008), if you are an attorney trying to defend a malpractice lawsuit, you might very well want and be able to rely upon habit evidence.

In Carrion, a New York grand jury charged Carlos Carrion with conspiracy in the second degree, criminal possession of a controlled substance, twenty counts of attempted murder, criminal use of a firearm, two counts of criminal possession of a weapon, and reckless endangerment.  And the minimum sentence for the drug possession charge alone was fifteen years to life imprisonment

The state offered Carrion a plea deal, pursuant to which, Carrion would plead guilty to criminal possession of a controlled substance in the second degree in exchange for an indeterminate sentence of ten years to life imprisonment on the condition that Carrion allocute to all of the crimes charged in the indictment. Carrion declined the offer and proceeded to trial, after which the jury found him guilty of criminal possession of a controlled substance in the first degree, five counts of attempted murder in the first degree, criminal use of a firearm in the first degree, two counts of criminal possession of a weapon in the third degree, and reckless endangerment in the first degree.  Carrion was subsequently sentenced to an aggregate indeterminate prison term of 125 years to life.

Carrion later filed a petition for a writ of habeas corpus, arguing, inter alia, that he was denied effective assistance of trial counsel because his lawyer failed fully to inform and advise him about the pretrial plea offer.  Carrion claimed that his trial counsel's representation was insufficient in connection with the plea offer in two respects: (1) counsel failed to advise Carrion of his maximum sentencing exposure, and (2) counsel did not urge Carrion to accept the proffered plea bargain.

Magistrate Judge Maas thereafter held a hearing on the habeas petition, after which he issued a report and recommendation recommending that Carrion's habeas petition be denied on the merits.  And Judge Maas did so despite Carrion's trial counsel, Roy Kulcsar, not remembering much about his representation of Carrion because Kulcsar claimed that it was his established practice to discuss with clients "any aspects relating to sentencing."

Thereafter, District Judge Scheindlin issued an opinion stating that she "disagree[d] with the conclusions reached by the Magistrate Judge regarding the effectiveness of Kulcsar's representation," and granting Carrion's habeas corpus petition. Judge Scheindlin held that "[t]he appropriate remedy here is to give Carrion the benefit of the original plea offer and re-sentence him accordingly."

The Second Circuit, however, disagreed and thus vacated the district court's order and remanded for further proceedings.  And one of its reasons for doing so was that it was concerned because:

     "Judge Scheindlin suggests that she has rejected Judge Maas's conclusion that Kulcsar warned Carrion about his sentencing exposure in part because Judge Maas relied on Kulcsar's testimony of his 'established practice.'  We see no error in Judge Maas's reliance on Kulcsar's testimony concerning his usual practice, particularly in light of the fact that Kulcsar was being asked to remember events that occurred over twelve years earlier. As we have said, '[t]ime inevitably fogs the memory of busy attorneys. That inevitability does not reverse the Strickland presumption of effective performance....'  Indeed, the Federal Rules of Evidence allow habit evidence to be used 'to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice,' Fed.R.Evid. 406, and courts have relied on such evidence in habeas corpus proceedings to find effective assistance of counsel....Thus, while neither Judge Maas nor Judge Scheindlin was required to conclude from Kulcsar's testimony of his usual practice that Kulcsar advised Carrion of his sentencing exposure, it was permissible for either of them to do so."

Frankly, I'm not sure that most attorneys discuss the plea bargaining process with enough frequency and regularity for them to rely upon Rule 406 and I'm not sure whether courts have applied the Rule outside of the habeas context.  But I would be interested to research the issue some more and see if judges have addressed the issue with more detail.

-CM

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