10-3636-pr
Daryl Graham v. Leonard Portuondo

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 15th day of November, two thousand eleven.
PRESENT:
            JOHN M. WALKER, JR.,
            DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                      Circuit Judges.

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DARRYL GRAHAM,
          Petitioner-Appellee,

                  -v.-                                  10-3636-pr

LEONARD PORTUONDO, SUPERINTENDENT,
SHAWANGUNK CORRECTIONAL FACILITY,
          Respondent-Appellant.

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FOR PETITIONER-APPELLEE:             ANDREA GAIL HIRSCH, Andrea G.
                                     Hirsch, P.C., New York, New York.



FOR RESPONDENT-APPELLANT:            AMY APPELBAUM, Assistant District
                                     Attorney (Leonard Joblove,
                                     Assistant District Attorney, on the
                                     brief), for Charles J. Hynes,
                                     District Attorney, Kings County,
                                     Brooklyn, New York.
           Appeal from the United States District Court for the

Eastern District of New York (Weinstein, J.).    UPON DUE

CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that

the judgment of the district court is VACATED, and the case is

REMANDED to the district court.

           Respondent-appellant Leonard Portuondo (the "State")

appeals from the district court's judgment entered August 24,

2010, granting petitioner-appellee Darryl Graham's petition for a

writ of habeas corpus.   We assume the parties' familiarity with

the underlying facts, the procedural history of the case, and the

issues on appeal.

           We review a district court's grant of a writ of habeas

corpus de novo.   Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir.

2009).   Under 28 U.S.C. § 2254, a habeas petition "shall not be

granted . . . unless the adjudication of the claim -- (1)

resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law as

determined by the Supreme Court of the United States; or (2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State Court proceeding."   28 U.S.C. § 2254(d)(1)-(2).

           A petitioner must exhaust all available remedies in the

courts of the State.   Id. § 2254(b)(1)(A).   "An applicant shall

not be deemed to have exhausted the remedies available       . . .

if he has the right under the law of the State to raise, by any

available procedure, the question presented."   Id. § 2254(c).


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          Moreover, the Supreme Court recently held that "review

under § 2254(d)(1) is limited to the record that was before the

state court that adjudicated the claim on the merits."   Cullen v.

Pinholster, -- U.S. --, 131 S. Ct. 1388, 1398 (2011).    Here,

§ 2254(d)(1) applies to Graham's claim of ineffective assistance

of counsel.

          After having independently reviewed the record in light

of these principles, and having the benefit of Pinholster, which

was decided after the district court ruled below, we conclude

that Graham did not sufficiently exhaust all available remedies

in the state courts of New York.   Accordingly, we vacate the

district court's judgment so that Graham can pursue all avenues

of relief in state court before seeking further relief before a

habeas court.

          Although Graham perhaps did all that he could to

exhaust his remedies in the prior state court proceedings, the

fact is that with the assistance of his able counsel, Graham has

now acquired additional psychiatric and medical records and been

evaluated by an expert psychiatrist who testified on his behalf.

Both the records and the psychiatrist's testimony presented at

the thorough hearing conducted by the district court yielded

significant, new evidence not previously presented to the state

court.

          In addition, Graham may raise his claim of ineffective

assistance of counsel and present such evidence through a motion

to vacate judgment under New York Criminal Procedure Law


                               -3-
§ 440.10.   See N.Y. Crim. Proc. § 440.10 (McKinney 2010); People

v. Gravino, 14 N.Y.3d 546, 558 (2010) (A "claim of ineffective

assistance of counsel brings up matters not apparent from the

face of the record, which are therefore properly fleshed out by

affidavit in support of a CPL 440.10 motion rather than raised on

direct appeal.").     Graham now has new evidence that the Appellate

Division never previously considered, making a § 440.10

proceeding appropriate in this case.    See People v. Brown 45

N.Y.2d 852, 853-54 (1978) ("[I]n the typical [ineffectiveness of

counsel] case it would be better, and in some cases essential,

that an appellate attack on the effectiveness of counsel be

bottomed on an evidentiary exploration by collateral or post-

conviction proceeding brought under CPL 440.10." (internal

citation omitted)).    Indeed, the State conceded at oral argument

before this Court that "in the 440 context, [Graham]'s not

procedurally barred" and that it would not oppose such a motion

on procedural grounds if Graham were to file the motion.1
            In light of the new evidence obtained by Graham, the

availability of a § 440.10 motion, and the State's concessions

regarding the lack of any procedural bar, we conclude that the

appropriate course is to defer habeas review until Graham has

exhausted his claim in the state courts of New York.




     1
          It is worth noting that the State further conceded the
"competence prong" of Graham's ineffective assistance claim and
contests only the prejudice element of the claim.

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            Accordingly, the judgment of the district court is

hereby VACATED, and the case is REMANDED to the district court

with instructions to hold the petition in abeyance so that Graham

can exhaust his claim in state court by filing a motion under CPL

§ 440.10.



                           FOR THE COURT:
                           CATHERINE O'HAGAN WOLFE, CLERK




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