Habeas Granted: Appellate Counsel Ineffective for Not Raising Venue Argument

It's a rare day when the Second Circuit finds appellate counsel to have been ineffective. After all, the defendant needs to satisfy the Strickland standard, showing that counsel's performance was objectively unreasonable and that there exists a reasonable probability of a different result. Given the paucity of successful criminal appeals, that sets a pretty high bar. But in the recent decision by Judge Nathan (Park dissenting) in Purcell v. United States, 23-6985 (2d Cir. November 4, 2025), a case in which Petitioner was convicted of various sex trafficking charges, petitioner had a lot going for him. For one thing, he had already won reversal of his conviction under Count One, charging enticement to engage in unlawful sexual activity, for lack of venue, and for another thing, his appellate lawyer conceded he had failed on appeal to raise the identical, meritorious argument as to Count Two, charging transporting someone in interstate commerce to engage in prostitution, due to simple inadvertence.

It seemed like a slam dunk, but the SDNY didn't go down easily. First, it argued that the court should punt on the issue pursuant to the concurrent sentence doctrine, that says the court may decline to consider a habeas challenge where it is reasonably certain that doing so will not adversely affect the petitioner. Well, we don't have that degree of confidence, said the court, since on resentencing on the remaining counts petitioner could receive a lower sentence.

Next, as reported in the court's decision, "The government and the dissent speculate that Purcell’s counsel made a 'strategic decision[]' to omit the venue challenge in order to 'prioritize other challenges[.]' ... They also contend that counsel could not raise every colorable argument 'given limitations on pages of a brief[.]'”. No way, said the court. There was no good reason to not raise the venue argument as to Count Two: "[W]e cannot conceive of how challenging venue as to Count Two could possibly have interfered with the making of any other arguments that were available to" Petitioner (cleaned up).

There was no reason to remand to give defense counsel an opportunity "to testify and explain his actions," since defense counsel had already acknowledged his mistake and there was no reason to not believe him. Kudos to defense counsel.

Of course, as is the case with many partial reversals, the victory may be pyrrhic, as petitioner is also serving a 216-month sentence on one of the remaining counts of conviction. Which is why, in my annual lecture of Second Circuit Law, I focus on the Circuit's (abysmal) record of complete trial reversals.

Richard Levitt