04-1315 -pr
Graham v. Portuondo


                             UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        August Term, 2005

(Submitted: August 23, 2005                                           Decided: October 3, 2007)

                                     Docket No. 04-1315-pr


                      _________________________________________________

DARYL GRAHAM,

                               Petitioner-Appellant,

               — v. —

LEONARD PORTUONDO, SUPERINTENDENT,
SHAWANGUNK CORRECTIONAL FACILITY,

                               Respondent-Appellee.

                      _________________________________________________


BEFORE:

                JACOBS, Chief Judge, KATZMANN and HALL, Circuit Judges:

                      _________________________________________________

Motion for a certificate of appealability to appeal a judgment of the United States District Court

for the Eastern District of New York (Jack B. Weinstein, Judge), denying Graham’s petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254.

MOTION GRANTED. JUDGMENT VACATED AND REMANDED.

                                              ANDREA G. HIRSCH, New York, N.Y., for
                                              Petitioner-Appellant Daryl Graham.
                                               KAROL BAIRD MANGUM, Brooklyn, N.Y., for
                                               Respondent-Appellee Leonard Portuondo.

PER CURIAM:

       Daryl Graham seeks permission to appeal from the district court’s judgment denying his

28 U.S.C. § 2254 petition after an evidentiary hearing. Graham, who was pro se below, argues

that the court’s failure to appoint him counsel at the hearing violated Rule 8(c) of the Federal

Rules Governing § 2254 petitions, which requires that counsel be appointed to indigent

petitioners at such hearings. We agree and further find that the district court’s failure to appoint

counsel to Graham was clear error. We therefore grant Graham’s motion for a certificate of

appealability, vacate the judgment below, and remand for a new evidentiary hearing in

compliance with Rule 8(c).

       In 1996, Graham was convicted in the New York Supreme Court, Kings County, of the

second-degree murder of Roxanne Thomas, his ex-girlfriend. He was sentenced to a term of

incarceration of twenty-five years to life. In August 2001, Graham filed a pro se 28 U.S.C. §

2254 petition challenging his conviction in the United States District Court for the Northern

District of New York, which was subsequently transferred to the Eastern District of New York.

Graham asserted that he had received ineffective assistance of trial counsel in that counsel had

failed to investigate his history of mental illness or to have a psychiatrist evaluate him to assist in

preparing a defense. He also challenged the trial court’s rulings with respect to his competency

hearing before trial and psychiatric evaluation prior to sentencing.

       The district court granted Graham in forma pauperis status in October 2001, and it later

ordered a hearing so that Graham’s trial counsel could have “an opportunity to be heard and to



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present evidence, in the form of live testimony, affidavits, or briefs.” Order filed 10/20/03 at 2.

At the October 2003 hearing, the district court asked Graham whether he was represented by

counsel, and Graham stated that he was not. The district court then asked Graham whether he

wanted time to get an attorney. Graham replied, “I cannot afford an attorney.” The court then

stated, “I will not appoint one at this time. Tell me why you think the habeas petition should be

granted.”

       After Graham presented his arguments to the court and the State offered into evidence

copies of Graham’s competency and pre-sentence evaluations, Graham’s trial attorney testified

extensively. He asserted that Graham had been examined by defense psychiatric experts but that

they had concluded that Graham was competent to stand trial. He also asserted that he personally

believed Graham to be competent based on their discussions prior to trial. Counsel admitted,

however, that he had not obtained Graham’s complete medical records prior to trial but had

relied on the psychiatric assessments of the government-appointed psychiatrists.

       Following the hearing, the district court denied Graham’s § 2254 petition, noting that

“[a]n evidentiary hearing was conducted on this matter, and no further hearing is necessary.”

Memorandum, Judgment & Order at 1. Relying on the hearing testimony of Graham’s trial

counsel, the court concluded that counsel had been effective. The court also found no error in the

state trial court’s handling of the psychiatric evaluations.

       Graham filed a timely pro se appeal of the district court judgment. He now moves for a

certificate of appealability. We asserted jurisdiction pursuant to 28 U.S.C. § 2253(a) and

appointed counsel to brief the issue of whether the district court was required to assign Graham

counsel at the hearing. Having heard from counsel for both sides, we grant the motion for a


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certificate of appealability, vacate the judgment, and remand for appointment of counsel and a

new hearing.

       Pursuant to Rule 8(c) of the Federal Rules Governing § 2254 Cases, “ [i]f an evidentiary

hearing is required [in a § 2254 case], the judge shall appoint counsel for a[n indigent]

petitioner.”1 As the Advisory Committee’s Notes explain, “the furnishing of counsel is made

mandatory” at such evidentiary hearings because “[c]ounsel can perform a valuable function

benefitting both the court and the petitioner. . . . At a hearing, the petitioner’s claims are more

likely to be effectively and properly presented by counsel.” Fed. R. Governing § 2254 Cases 8

advisory committee’s notes. Although we have previously noted in dicta the mandatory nature of

Rule 8(c), see, e.g., Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986), we have, until now,

left undecided the proper disposition on appeal when the district court has not complied with the

rule. We now hold that a district court’s failure to follow Rule 8(c) of the Federal Rules

Governing § 2254 Cases and the Federal Rules Governing § 2255 Cases is clear error.

       All of the circuits to consider the issue have held that Rule 8(c) mandates the appointment

of counsel at required evidentiary hearings and that the district court’s failure to follow the rule is




       1
        Rule 8(c) was amended in 2004 to read: “If an evidentiary hearing is warranted, the
judge must appoint an attorney to represent a[n indigent] petitioner . . . .” The Advisory
Committee noted that the amendment was part of a “general restyling of the rules” and that
“[t]hese changes are intended to be stylistic and no substantive change is intended.” Fed. R.
Governing § 2254 Cases 8 advisory committee’s notes. Because Graham’s evidentiary hearing
took place in 2003, we apply the pre-amendment language of Rule 8 in this case. We see no
reason at this juncture, however, why we would not take a similar approach under the new
language in a properly presented case.

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not subject to harmless error review and requires vacatur or reversal.2 See Green v. United

States, 262 F.3d 715 (8th Cir. 2001); Shepherd v. United States, 253 F.3d 585 (11th Cir. 2001);

United States v. Iasiello, 166 F.3d 212 (3d Cir. 1999); United States v. Duarte-Higareda, 68 F.3d

369 (9th Cir. 1995); Swazo v. Wyo. Dep’t of Corr., 23 F.3d 332 (10th Cir. 1994); United States v.

Vasquez, 7 F.3d 81 (5th Cir. 1993); Rauter v. United States, 871 F.2d 693 (7th Cir. 1989). These

circuits have applied a bright-line rule under the theory that pro se petitioners cannot adequately

prove harm without the aid of counsel. See, e.g., Vasquez, 7 F.3d at 85 (“[I]t is difficult to

accurately assess whether it was harmless error to deny counsel on the basis of a record

developed at an evidentiary hearing conducted in the absence of that counsel. One can only

speculate what the record might have been had counsel been provided.”).

       Counsel was not assigned for Graham at the October 2003 hearing, even though it was

clear from his in forma pauperis status and initial testimony that he was indigent. Much like the

respondents in many of the cases cited above, the respondent here argues that the hearing below

was not an “evidentiary hearing” within the meaning of Rule 8(c). Respondent contends it was a

species of oral argument, and, thus, the district court was not bound to follow Rule 8(c)’s

requirement. This argument is flawed. The District Court referred to the hearing as an

evidentiary hearing twice in its decision denying the § 2254 petition, relied heavily on trial

counsel’s testimony in its determination that counsel was effective, and specified in its October

2003 order that the purpose of the hearing was to offer trial counsel the opportunity to present


       2
         Many of the circuits have addressed this issue in the context of appeals from denials of
28 U.S.C. § 2255 petitions. Although the present case challenges a state conviction, the
appointment of counsel requirement of the Rules Governing § 2254 Cases is identical to that of
the Rules Governing § 2255 Proceedings. See United States v. Iasiello, 166 F.3d 212, 213 n.3
(3d Cir. 1999).

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evidence on his behalf. There is no question that the hearing was evidentiary. See Vasquez, 7

F.3d at 84 (rejecting, based on the record of the district court hearing, the argument that the

hearing was meant to allow the petitioner to develop his claim under oath rather than for

evidentiary purposes); Rauter, 871 F.2d at 696 (same); see also Shepherd, 253 F.3d at 587

(finding the hearing to be an evidentiary hearing despite the district court’s “unwillingness to

categorize it as such”).

       The respondent cautions us against adopting a bright-line rule with respect to the Rule

8(c) appointment of counsel requirement, asserting that it could lead to a waste of public funds or

the curtailment of evidentiary hearings in the district courts. We reject this argument. The

appointment of counsel in these cases is meant to benefit “both the court and the petitioner,” and

to make the hearings more effective. Fed. R. Governing § 2254 Cases 8 advisory committee’s

notes. As Rule 8 makes clear, the representation of indigent petitioners by counsel when district

courts determine that their cases require evidentiary development is an important goal,

irrespective of the cost. Indeed, the voluminous, relevant evidence obtained by the attorney

assigned to Graham by this Court underscores the need for the assignment of counsel to

petitioners who lack the skills or resources to present their cases properly at such hearings.

       Finally, the fact that Graham did not specifically request counsel at the hearing does not

preclude this Court from following the examples of our sister circuits and vacating the judgment

below. See Vasquez, 7 F.3d at 85 (“[I]t would be unfair to place this burden [of requesting

counsel] on an indigent, unrepresented petitioner particularly where . . . there is no record of the

petitioner being made aware of that right.”).




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        The motion for a certificate of appealability is GRANTED, the judgment of the district

court denying Graham’s § 2254 petition is VACATED, and the case is REMANDED to the

district court to appoint counsel and hold a new evidentiary hearing. Graham’s motion to

supplement the record before this Court is GRANTED.




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