The rules are different in habeas corpus cases

In this habeas corpus case, the State of New York did not raise a defense in opposing the habeas petition. Normally, that's a waiver, and the courts will not consider waived arguments. But in habeas proceedings, the rules are different. While the inmate won his habeas petition in the trial court, the Court of Appeals takes it away.

The case is Whitehead v. LaManna, a summary order issued on December 30. Whitehead was convicted of drug-related crimes. After the convictions were affirmed on appeal, Whitehead filed a petition for habeas corpus, arguing that his trial counsel was ineffective in not filing a motion to dismiss the indictment. The argument that trial counsel could have raised related to the fact that some of the crimes took place in Orange County, not Albany County, where he was indicted and convicted. Whitehead's appellate counsel did not raise that argument either, so appellate counsel was also named in the habeas petition as an ineffective lawyer.

Here is what happened next: in opposing the habeas petition, the State of New York did not raise a particular defense: that since some of the crimes were committed in Albany County, crimes committed in an outside county (such as Orange County) may be included in the conspiracy indictment. Without the benefit of that argument, the federal court in Albany granted Whitehead's habeas petition. The State then filed a motion for reconsideration, asserting that defense for the first time. The federal judge said this argument was waived, and Whitehead sustained his victory.

Off to the Court of Appeals, which reinstates the conviction and discards the habeas win. Under the habeas rules, which require the courts to defer to the state courts in how they handle criminal prosecutions, the federal court is supposed to consider arguments that might sustain the criminal conviction, including hypothetical arguments, even if they were waived by the government in opposing the habeas petition. The Court of Appeals (Bianco, Lee and Menashi) says:

in its effort to search for any hypothetical argument that might support the Appellate Division’s rejection of Whitehead’s venue argument and related ineffective assistance claim, as required under Lynch, the district court apparently did not identify or consider on its own that venue on the substantive counts was proper due to the conspiracy charge and thus Whitehead suffered no prejudice by his appellate counsel’s failure to raise the venue issue.

The hypothetical argument that might have sustained the conviction in the face of Whitehead's habeas challenge may have been waived, but under the habeas rules, the trial court was still required to consider it. This rule does not apply in other cases, but it does in cases like this. The Court of Appeals says the federal court abused its discretion in not considering the State's belated argument, and that this argument is actually meritorious on the basis that the deficiency in the indictment did not prejudice Whitehead, and the case was properly venued in Albany County, after all.