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Hugh HENRY, a/k/a Hugh Harold Henry, Petitioner-Appellee, v. Charles J. SCULLY, Superintendent, Green Haven Correctional Facility, and Dennis C. Vacco, Attorney General of the State of New York, Respondents-Appellants

United States Court of Appeals for the Second Circuit1996-03-04No. No. 930, Docket 95-2528
78 F.3d 51

Summary

Holding. The court affirmed the grant of the habeas corpus petition, holding that Henry received ineffective assistance of counsel due to the cumulative effect of his attorney's failure to object to a codefendant's confession, failure to object to damaging hearsay, and failure to request a missing witness instruction.

Hugh Henry was convicted in 1981 of drug sale and possession charges and sentenced to fifteen years to life imprisonment. He filed a federal habeas petition arguing he received ineffective assistance of counsel at trial. The district court granted his petition, finding three significant failures by his defense attorney: failure to object to admission of a codefendant's confession and jury instructions allowing consideration of that confession against him, failure to object to damaging hearsay testimony, and failure to request a missing witness instruction regarding a confidential informant who did not testify. The state appealed, arguing these omissions reflected trial strategy and that the prosecution's case was too strong to show prejudice.

The appellate court affirmed the district court's decision. It rejected the state's trial strategy defense, finding no conceivable legitimate strategy underlying the failure to object to the codefendant's confession. The court also found counsel's failure to object to hearsay testimony particularly indefensible because the absence of drugs on Henry's person was his strongest defense point, and the hearsay was used to undermine it. While the court viewed the missing witness instruction failure as less severe than the other two errors, it noted there was no downside to requesting it. The court concluded that the cumulative effect of these three instances of counsel inaction constituted ineffective assistance.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether defense counsel's failure to object to admission of codefendant's confession against defendant constituted ineffective assistance
  • Whether failure to object to damaging hearsay testimony that undermined defendant's strongest defense point was ineffective assistance
  • Whether cumulative effect of multiple counsel failures demonstrates ineffective assistance despite potential individual weakness of some claims

Procedural posture

The appellants, state correctional officials and the state attorney general, appealed from a district court judgment granting Henry's habeas corpus petition on ineffective assistance of counsel grounds.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

Respondents-appellants Charles J. Scully, Superintendent of the Green Haven Correctional Facility, and Dennis C. Yaceo, Attorney General of the State of New York, appeal from a judgment entered July 26, 1995 in the United States District Court for the Southern District of New York, Kimba Wood, Judge, that granted the petition of petitioner-appellee Hugh Henry for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he was denied effective assistance of counsel at his trial. Henry was convicted in 1981 of criminal sale of a controlled substance in the first degree and possession of a controlled substance in the first degree in violation of N.Y.Penal Law §§ 220.43 and 220.21, and sentenced to concurrent prison terms of fifteen years to life.

The district court found that Henry was denied effective assistance of counsel at his trial because his counsel (1) failed to object to the admission in evidence against Henry of his codefendant’s confession and to the trial court’s instruction that the jury could consider that confession as evidence against Henry; (2) failed to object to damaging hearsay testimony; and (3) failed to request a missing witness charge with respect to a confidential informant who did not testify at trial. On appeal, respondents-appellants contend that these asserted deficiencies were consistent with a trial strategy to engage in a straight credibility contest with the prosecution’s witnesses, and in any event that the case against Henry was so strong that he cannot establish prejudice even if his counsel’s performance is deemed deficient. See Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 2064-69, 80 L.Ed.2d 674 (1984).

We affirm the judgment of the district court substantially for the reasons set forth in the opinion of the district court, see Henry v. Scully, 918 F.Supp. 693 (S.D.N.Y.1995), and in the report and recommendation of Magistrate Judge Nina Gershon, see Henry v. Scully, 91 Civ. 7632 (KMW), slip op. (S.D.N.Y. Apr. 24, 1995). First, defense counsel’s failure to object to (a) the admission, against Henry, of a codefendant’s confession; (b) the prosecutor’s reference to the confession as implicating Henry; and (e) the trial court’s instruction that the jury could consider the confession as evidence against Henry, could not have been part of any meaningful defense strategy of which we can conceive, notwithstanding the government’s after-the-fact claim to the contrary. Second, because the absence of any drugs on Henry’s person at his arrest (contrary to the testimony of the one police officer who implicated him) was Henry’s strongest point at trial, defense counsel’s failure to object to hearsay testimony used by the prosecution to explain away this fact was incomprehensible as a defense strategy. Finally, although the failure to request a missing witness charge, when the prosecution faded to call the informant, was perhaps not as egregious as the first two errors, counsel should have made such a request because there was no downside to doing so and there was a potential benefit to be gained. In any event, we express no view regarding whether one or two of these errors would have constituted ineffective assistance, for the aggregate effect of these three instances of inaction by defense counsel convinces us that the magistrate judge and district judge were correct in finding that Henry received ineffective assistance of counsel.

. Dennis C. Vacco has been substituted as a party for Robert Abrams pursuant to Fed. R.Civ.P. 25(d) and Fed.R.App.P. 43(c).