Michigan Civil Rights Initiative Committee v. Coalition to Defend Affirmative Action Brief in Opposition

    No.

3fa®f)E
S u p re m e  C o u r t  of tfje M n tte b  S ta te s ;

----------------♦----------------

R ic h a r d  R o s a r io , p e t it io n e r ,

V.

P a t r ic k  G r if f in , S u p e r in t e n d e n t , S o u t h p o r t  
C o r r e c t io n a l  F a c il it y , a n d  A n d r e w  M . C u o m o , 

A t t o r n e y  G e n e r a l  o f  N e w  Y o r k

----------------« ----------------

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

-------------- ♦---------------

PETITION FOR A WRIT OF CERTIORARI

John Payton 
Director-Counsel 

Debo P. Adegbile 
Christina Swarns 
Jin Hee Lee
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson St., Suite 1600 
New York, NY 10013
Leah F. W ilson 
M orrison & Foerster llp 
425 Market St.
San Francisco, CA 94105

Deanne E. Maynard 
Counsel of Record 

Brian R. Matsui 
M orrison & Foerster llp 
2000 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 887-1500 
dmaynard@mofo.com
Carl H. Loewenson, Jr. 
Leda A. Moloff 
Morrison & Foerster llp 
1290 Avenue o f the Americas 
New York, NY 10104
Counsel for Petitioner

December 29, 2010

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 
OR CALL COLLECT (402) 342-2831

mailto:dmaynard@mofo.com


QUESTION PRESENTED

In Strickland v. Washington, 466 U.S. 668 (1984), 
this Court set forth a two-part test for demonstrating 
ineffective assistance of counsel under the Sixth 
Amendment. First, a prisoner must demonstrate that 
his “counsel’s performance was deficient.” Second, the 
prisoner must show that “there is a reasonable prob­
ability that, but for counsel’s unprofessional errors, 
the result of the proceedings would have been different.” 
By contrast, New York’s state constitutional standard 
for ineffective assistance of counsel is limited to a 
single inquiry: whether “the evidence, the law, and 
the circumstances of a particular case, viewed in 
totality and as of the time of the representation, 
reveal that the attorney provided meaningful repre­
sentation.” People v. Baldi, 429 N.E.2d 400, 405 (N.Y. 
1981). This state standard “allows the gravity of 
individual errors to be discounted indulgently by a 
broader view of counsel’s overall performance.” App., 
infra, 244a (Jacobs, C.J., dissenting to denial of 
rehearing en banc). In evaluating petitioner’s federal 
constitutional claim of ineffective assistance of counsel, 
the state court applied the New York state constitu­
tional standard instead of Strickland, and denied 
habeas relief.

The question presented is:

Whether application of New York’s state constitu­
tional “meaningful representation” standard to eval­
uate Sixth Amendment claims of ineffective 
assistance of counsel results in decisions that are 
contrary to, or involve an unreasonable application of, 
clearly established federal law.



11

PARTIES TO THE PROCEEDING

Petitioner is Richard Rosario.

Respondents are Superintendant Patrick Griffin, 
Southport Correctional Facility, and New York Attor­
ney General Andrew Cuomo.



I l l

QUESTION PRESENTED......................................  i
PARTIES TO THE PROCEEDING......................  ii
TABLE OF CONTENTS.......................................... iii
TABLE OF AUTHORITIES....................................  vi
PETITION FOR A WRIT OF CERTIORARI....... 1
OPINIONS BELOW.................................................. 1
JURISDICTION........................................................  1
CONSTITUTIONAL AND STATUTORY PRO­

VISIONS INVOLVED........................................... 2
STATEMENT............................................................. 2

A. Constitutional And Statutory Framework .... 4
B. State Court Proceedings..............................  7
C. Proceedings Below........................................  15

REASONS FOR GRANTING THE PETITION.... 20
REVIEW IS NECESSARY BECAUSE NEW 
YORK’S “MEANINGFUL REPRESENTATION” 
STANDARD RESULTS IN DECISIONS THAT 
ARE CONTRARY TO, OR AN UNREASON­
ABLE APPLICATION OF, STRICKLAND V. 
WASHINGTON.....................................................   20
A. The Ruling Below Conflicts With The 

Habeas Decisions Of This Court And 
Other Courts Of Appeals.............................  21
1. Contrary to clearly established federal 

la w ............................................................  21

TABLE OF CONTENTS
Page



IV

2. Unreasonable application of clearly 
established federal law.......................... 31

B. Continued Application Of New York’s 
“Meaningful Representation” Standard 
Will Prejudice Habeas Petitioners And

TABLE OF CONTENTS -  Continued
Page

Burden Federal Courts................................. 35
CONCLUSION........................................................... 38

APPENDIX A: Opinion of the United States 
Court of Appeals for the Second Circuit, dat­
ed April 12, 2010........................................................ la

APPENDIX B: Order granting Certificate of 
Appealability of the United States Court of 
Appeals for the Second Circuit, dated April 
15, 2009..................................................................... 59a

APPENDIX C: Memorandum and Order of 
the United States District Court for the 
Southern District of New York, dated Octo­
ber 22, 2008...............................................................60a

APPENDIX D: Report and Recommendation 
of the United States District Court for the 
Southern District of New York, dated De­
cember 28, 2007....................................................... 99a

APPENDIX E: Certificate Denying Leave of 
the Supreme Court of the State of New York, 
Appellate Division: First Department, dated 
September 8, 2005..................................................205a



V

APPENDIX F: Decision and Order of the 
Supreme Court of the State of New York, 
dated December 28, 2007......................................207a

APPENDIX G: Certificate Denying Leave of 
the State of New York Court of Appeals, dat­
ed March 26, 2002..................................................232a

APPENDIX H: Remittitur of the Supreme 
Court of the State of New York, Appellate 
Division: First Department, dated November 
27, 2001...................................................................234a

APPENDIX I: Order Denying Rehearing and
Rehearing En Banc of the United States 
Court of Appeals for the Second Circuit, dated 
August 10, 2010 .....................................................237a

APPENDIX J: United States Code, Title 28, 
Section 2254........................................................... 250a

TABLE OF CONTENTS -  Continued
Page



VI

Cases

Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003)..... 26
Castillo v. Matesanz, 348 F.3d 1 (1st Cir. 2003), 

cert, denied, 543 U.S. 822 (2004)............................. 27
Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th 

Cir.), cert, denied, 546 U.S. 944 (2005).................. 27
Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003)...........37
Goodman v. Bertrand, 467 F.3d 1022 (7th Cir.

2006).............................................................................25
Henry v. Poole, 409 F.3d 48 (2d Cir. 2005), cert, 

denied, 547 U.S. 1040 (2006).............................37, 38
Hummel v. Rosemeyer, 564 F.3d 290 (3d Cir.), 

cert, denied, 130 S. Ct. 784 (2009)...........................26
Kimmelman v. Morrison, A ll U.S. 365 (1986)..............33
Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001).........37
Loliscio v. Goord, 263 F.3d 178 (2d Cir. 2001)...........37
Magana v. Hofbauer, 263 F.3d 542 (6th Cir.

2001).............................................................................27
Manson v. Brathwaite, 432 U.S. 98 (1977)................35
Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002).......... 27
People v. Baldi, 429 N.E.2d 400 (N.Y. 1981).................6
People v. Benevento, 697 N.E.2d 584 (N.Y.

TABLE OF AUTHORITIES
Page

1998)....................................................................6, 7, 23



V ll

People v. Rosario, 733 N.Y.S.2d 405 (N.Y. App.
Div. 2001), appeal denied, 97 N.Y.2d 760

TABLE OF AUTHORITIES -  Continued
Page

(2002) ...........................................................................................9
People v. Turner, 840 N.E.2d 123 (N.Y 2005)..... 24, 29
Porter v. McCollum, 130 S. Ct. 447 (2009)................ 35
Rose v. Lee, 252 F.3d 676 (4th Cir.), cert, de­

nied, 534 U.S. 941 (2001).......................................... 27
Saranchak v. Beard, 616 F.3d 292 (3d Cir

2010)............................................................................ 26
Skipper v. South Carolina, 476 U.S. 1 (1986)...........34
Spears v. Mullin, 343 F.3d 1215 (10th Cir.

2003), cert, denied, 541 U.S. 909 (2004)..........25, 26
Strickland v. Washington, 466 U.S. 668 (1984)....passim
United States v. Wade, 388 U.S. 218 (1967)..............35
Wiggins v. Smith, 539 U.S. 510 (2003)....................... 31
Williams v. Taylor, 529 U.S. 362 (2000)............ passim
Young v. Dretke, 56 F.3d 616 (5th Cir. 2004).............26
Young v. Sirmons, 486 F.3d 655 (10th Cir.

2007), cert, denied, 552 U.S. 1203 (2008)...............26

Constitutions and  Statutes

U.S. Const, amend. VI...........
28 U.S.C. § 2254(d)(1)............

.passim
passim



V lll

TABLE OF AUTHORITIES -  Continued
Page

Antiterrorism and Effective Death Penalty Act 
(AEDPA), Pub. L. No. 104-132, 110 Stat. 
1214(1996)................................................................... 4

N.Y. Const., art. 1, § 6..................................................... 6
N.Y. Crim. Proc. Law § 440.10.......................................9



PETITION FOR A WRIT OF CERTIORARI

Richard Rosario respectfully petitions for a writ 
of certiorari to review the judgment of the United 
States Court of Appeals for the Second Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 
la-58a) is reported at 601 F.3d 118. The opinion of 
the district court (App., infra, 60a-98a) is reported at 
582 F. Supp. 2d 541. The report and recommendation 
of the magistrate judge (App., infra, 99a-204a) is 
reported at 582 F. Supp. 2d 541.

The order of the court of appeals denying the 
petition for rehearing and rehearing en banc (App., 
infra, 237a-249a) is unreported but is available at 
2010 U.S. App. LEXIS 16675.

JURISDICTION

The Second Circuit issued its opinion on April 12, 
2010. App., infra, la-58a. On August 10, 2010, the 
Second Circuit denied the petition for rehearing and 
rehearing en banc. App., infra, 237a-249a. On Octo­
ber 22, 2010, Justice Ginsburg granted an extension 
of time within which to file a petition for a writ of 
certiorari to and including December 8, 2010, and, on 
November 29, 2010, Justice Ginsburg granted a 
further extension to and including December 29, 
2010.

This Court’s jurisdiction is invoked under 28 
U.S.C. § 1254(1).



2

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

The relevant constitutional and statutory provi­
sions are set forth in an appendix to the petition. 
App., infra, 250a-253a.

STATEMENT

Petitioner Richard Rosario was denied habeas 
relief by a sharply divided Second Circuit—first, a 
two-to-one decision by the panel and then, in four 
separate opinions, a six-to-four denial of rehearing en 
banc. While acknowledging a violation of Rosario’s 
Sixth Amendment right to effective assistance of 
counsel, the court of appeals denied habeas relief 
because it deferred to the state court’s denial of 
Rosario’s claim. The court of appeals so held, even 
though the state court applied only New York’s state 
constitutional “meaningful representation” standard 
to Rosario’s federal claim, instead of the two-part 
standard of Strickland v. Washington, 466 U.S. 668 
(1984). As the dissenting opinions below correctly 
determined, application of that state law standard 
can result—as it did here—in decisions that are 
contrary to, or an unreasonable application of, federal 
law.

Under this Court’s clearly established federal 
law, the Sixth Amendment right to effective assis­
tance of counsel is violated if there is a reasonable 
probability that, but for counsel’s error, the outcome 
at trial would have been different. Id. at 668. The 
New York Court of Appeals, however, has rejected



3

Strickland in favor of New York’s own standard. That 
state constitutional standard examines only whether 
a defendant received meaningful representation—a 
standard that “allows the gravity of individual errors 
to be discounted indulgently by a broader view of 
counsel’s overall performance.” App., infra, 244a 
(Jacobs, C.J., dissenting to denial of rehearing en 
banc). Although New York’s standard differs from 
Strickland in that outcome-determinative errors by 
counsel may not constitute ineffective assistance of 
counsel, the Second Circuit repeatedly has sanctioned 
application of that state standard to federal claims 
raised by New York state prisoners.

Application of New York’s standard to habeas 
petitioners’ federal ineffective assistance of counsel 
claims has made a difference in this and other cases. 
Indeed, this is not even a close case. All five of the 
federal judges who examined Rosario’s claim under 
Strickland—the magistrate judge, the district court 
judge, and all three members of the Second Circuit 
panel—concluded that Rosario had been deprived of 
his Sixth Amendment right to effective assistance of 
counsel. The only basis for denying federal habeas 
relief was deference to the state court’s adjudication 
of the Sixth Amendment claim. But the state court 
never applied Strickland. Instead, in denying relief, 
the state court explained that Rosario’s counsel’s 
error was a mere “misunderstanding or mistake” that 
“was not deliberate” and the error did “not alter the 
fact that both attorneys represented defendant skill­
fully, and with integrity and in accordance with the



4

standards of ‘meaningful representation’ defined by 
[New York] appellate courts.” App., infra, 226a. 
Thus, the state court considered the ultimate effect of 
counsel’s mistake on the trial outcome to be “ rele­
vant, but not dispositive” to the state constitutional 
inquiry. App., infra, 223a (quoting People v. Benevon­
to, 697 N.E.2d 584, 588 (N.Y. 1998)).

This important and recurring issue will not be 
resolved absent this Court’s review. The Second 
Circuit repeatedly has refused to hold that New 
York’s state standard is contrary to Strickland, and it 
denied en banc review here. As the dissent from the 
denial of rehearing en banc observed, the conflict 
between the state and federal standards ‘likely will 
give rise to more cases that will bedevil the district 
courts, which are left to sort out case-by-case a prob­
lem that is systemic.” App., infra, 242a. This Court 
should intervene now and prevent that result. In­
deed, given that the Second Circuit is an outlier 
among the courts of appeals in deferring to a state 
ineffectiveness standard so contrary to Strickland, 
summary reversal may be warranted. Alternatively, 
the case should be set for full briefing and argument.

A. Constitutional And Statutory Framework

1. In 1996, Congress enacted the Anti terrorism 
and Effective Death Penalty Act (AEDPA), Pub. L. 
No. 104-132, 110 Stat. 1214. That act imposed new 
restrictions on the power of federal courts to grant 
writs of habeas corpus to state prisoners. As amended 
by AEDPA, Section 2254(d)(1) of Title 28 of the United



5

States Code provides that a writ of habeas corpus for 
a state prisoner shall not issue unless the state court 
adjudication “resulted in a decision that was contrary 
to, or involved an unreasonable application of, clearly 
established Federal law, as determined by the Su­
preme Court of the United States.” 28 U.S.C. 
§ 2254(d)(1).

In Williams v. Taylor, 529 U.S. 362 (2000), this 
Court explained that Section 2254(d)(1) “defines two 
categories of cases in which a state prisoner may 
obtain federal habeas relief with respect to a claim 
adjudicated on the merits in state court.” Id. at 404. 
First, a state court decision applying federal law is 
“contrary to [the Court’s] clearly established prece­
dent if the state court applies a rule that contradicts 
the governing law set forth in [the Court’s] cases,” or, 
when confronting “facts that are materially indistin­
guishable from a decision of this Court * * * arrives at 
a result different from [the Court’s] precedent.” Id. at 
405-406. Second, “[a] state-court decision that cor­
rectly identifies the governing legal rule but applies it 
unreasonably to the facts of a particular prisoner’s 
case” constitutes an unreasonable application of 
clearly established federal law. Id. at 407-408.

2. The Sixth Amendment to the United States 
Constitution provides, in relevant part, that “[i]n all 
criminal prosecutions, the accused shall enjoy the 
right * * * to have the Assistance of Counsel for his 
defence.” This Court has recognized that “the right to 
counsel is the right to effective assistance of counsel.” 
Strickland, 466 U.S. at 685. In Strickland, the Court



6

held that a defendant’s claim of ineffective assistance 
of counsel has two parts: “First, the defendant must 
show that counsel’s performance was deficient. * * * 
Second, the defendant must show that the deficient 
performance prejudiced the defense.” Id. at 687. The 
latter prejudice component requires the defendant to 
“show that there is a reasonable probability that, but 
for counsel’s unprofessional errors, the result of the 
proceedings would have been different.” Id. at 694.

3. Article I, Section Six of the New York Consti­
tution provides in relevant part: “In any trial in any 
court whatever the party accused shall be allowed to 
appear and defend in person and with counsel * * 
N.Y. Const., art. 1, § 6. The New York Court of Ap­
peals has construed this provision to require “effec­
tive” aid. People v. Benevento, 697 N.E.2d 584, 586 
(N.Y. 1998).

Under the state constitution, whether a defen­
dant received effective assistance is measured by 
New York’s meaningful representation standard. 
Rather than separately examine whether counsel’s 
performance was deficient and resulted in prejudice, 
the meaningful representation standard involves a 
single inquiry: whether “the evidence, the law, and 
the circumstances of a particular case, viewed in 
totality and as of the time of the representation, 
reveal that the attorney provided meaningful repre­
sentation.” People v. Baldi, 429 N.E.2d 400, 405 (N.Y. 
1981). This analysis is less focused on prejudice and 
is “ultimately concerned with the fairness of the 
process as a whole rather than its particular impact



7

on the outcome of the case.” Benevento, 697 N.E.2d at 
588.

B. State Court Proceedings
1. On June 19, 1996, George Collazo was shot 

and killed in the Bronx, New York, while walking 
with a friend. The shooting occurred in daytime, 
minutes after the victim had an argument with two 
men he passed on the street. Two weeks after the 
shooting, Rosario was arrested for the murder, based 
solely on two stranger eyewitness identifications from 
“mug books.” App., infra, 102a. A third eyewitness 
had observed the confrontation between Collazo and 
the two unknown men, but that witness did not 
identify Rosario at trial as a participant in the crime. 
App., infra, 103a. No other evidence linked Rosario 
to the crime or the victim.

Rosario had been in Florida the entire month of 
June 1996. When Rosario learned that police in New 
York were looking for him, he left Florida on June 30, 
1996 and returned to New York. Rosario arrived in 
New York on July 1, 1996 and voluntarily contacted 
the police that day. C.A. App. A-788. Rosario denied 
any involvement in the shooting. He provided the 
police with a detailed alibi statement naming 13 
individuals who could confirm that he had spent the 
entire previous month in Florida. App., infra, 3a. He 
also provided several addresses and phone numbers. 
Neither the detectives who took Rosario’s statement 
nor the prosecutors who handled the case ever sought



8

to confirm the alibi information provided by Rosario 
upon his arrest.

2. Joyce Hartsfield was appointed to represent 
Rosario. Hartsfield filed an application in the trial 
court for fees to send a defense investigator to Florida 
to investigate the 13 alibi witnesses whom Rosario 
had identified to the police. C.A. App. A-1042-1045, 
A-1398, A-1865-1866. The trial court granted the 
application for fees in March 1997. C.A. App. A-1891- 
1892. Although Hartsfield remained Rosario’s coun­
sel for nearly a year after the fee application had 
been granted, she never instructed a defense investi­
gator to travel to Florida to interview Rosario’s alibi 
witnesses. C.A. App. A-1047-1048, A-1050, A-1399- 
1400.

In February 1998, Hartsfield was replaced by 
Steven Kaiser as Rosario’s appointed defense counsel.
C.A. App. A-1935. Kaiser mistakenly believed that 
the trial court had denied the application for investi­
gatory fees, when in fact the court had granted 
the application. C.A. App. A-1127-1128, A-1200. 
Moreover, Kaiser failed to make his own request for 
such fees, and he failed to conduct an investigation in 
Florida of Rosario’s alibi witnesses. C.A. App. A-1136.

At trial, the prosecution called three eyewitnesses 
to testify. Two of the witnesses identified Rosario as 
the shooter; the third eyewitness did not identify 
Rosario as the shooter despite prompting from the 
prosecutor. The defense presented two alibi witnesses 
who testified that Rosario was in Florida at the time



9

of the murder: John Torres, Rosario’s close friend, and 
Jenine Seda, John Torres’s fiancee. Each testified 
that in June 1996 Rosario stayed at their apartment 
in Deltona, Florida until the birth of their first child 
on June 20, 1996. Both testified that they knew that 
Rosario was in Florida on the day of the murder (on 
June 19, 1996) because they specifically recalled 
seeing Rosario on the day before the birth of their 
son. C.A. App. A-741-742. The prosecution chal­
lenged the credibility of Torres’s and Seda’s testimony 
due to their close relationship with Rosario. C.A. 
App. A-929.

Rosario also took the stand in his own defense. 
He testified that he was in Florida at the time of the 
murder. He also said that he had lived with Shannon 
Beane in Florida from February through April 1996. 
The prosecution impeached this latter statement with 
Rosario’s Florida arrest record, which demonstrated 
that he had been arrested in March 1996 and impris­
oned in Florida until April 1996.

Rosario was convicted of second degree murder 
and was sentenced to the maximum sentence of 25 
years to life. The Appellate Division of the Supreme 
Court of New York affirmed the judgment, and the 
New York Court of Appeals denied review. People u. 
Rosario, 733 N.Y.S.2d 405 (N.Y. App. Div. 2001), 
appeal denied, 97 N.Y.2d 760 (2002) (table review).

3. Following his direct appeal, Rosario filed a 
motion to vacate the judgment of conviction, pursuant 
to Section 440.10 of the New York Criminal Procedure



10

Law. Rosario asserted ineffective assistance of counsel 
under the federal and state constitutions.

a. The state trial court conducted an eviden­
tiary hearing into Rosario’s claim of ineffective assis­
tance of counsel. Rosario proffered seven alibi 
witnesses, not including the two who had testified at 
the trial. All of these witnesses had been identified 
by Rosario in his post-arrest statement or in inter­
views with his defense counsel and defense investiga­
tor. They corroborated the statements of Rosario and 
his trial alibi witnesses that he was in Florida 
throughout June 1996, including on the date of the 
murder. Their testimony would have provided cor­
roboration, additional context, and credibility to the 
trial testimony that Rosario was in Florida at the 
time of the murder.

Two of these additional witnesses, Chenoa Ruiz 
and Fernando Torres, specifically recalled seeing 
Rosario in Florida on June 19, 1996, (the day of the 
murder) and would have been more persuasive than 
the trial alibi witnesses because they were not Ro­
sario’s friends. C.A. App. A-1495, A-1501, A-1519; 
C.A. App. A-1302, A-1308-1310. Ruiz was a neighbor 
of John Torres and Jenine Seda. Ruiz recalled in 
particular seeing Rosario in Florida on June 19, 1996, 
because, while Ruiz was accompanying Seda to the 
doctor on the day before Seda would give birth, Torres 
“wasn’t involved like he should have been because he 
was hanging out with” Rosario. C.A. App. A-1495.



11

The second additional witness, Fernando Torres, 
visited his son’s and Seda’s apartment almost every 
day in June 1996, and recalled that Rosario was 
living there. C.A. App. A-1302. On the day of the 
murder (June 19), Fernando specifically recalled 
going with his son and Rosario to purchase car parts 
because his son’s car had broken down. C.A. App. 
A-1308-1310. Fernando Torres also saw Rosario on 
the morning of June 20, when he went to his son’s 
apartment. He learned then from Rosario that his 
son and Seda were at the hospital and that Seda was 
giving birth to his grandson. C.A. App. A-1303-1305. 
Fernando Torres again saw Rosario on June 21, when 
he met his grandson for the first time at his son’s 
apartment. C.A. App. A-1305-1306.

A third witness and a fourth witness, Michael 
Serrano and Ricardo Ruiz, further corroborated that 
Rosario was in Florida around the time of the murder. 
Serrano, a corrections officer, testified that he saw 
Rosario frequently in June 1996. C.A. App. A-1708, 
A-1712. Serrano recalled seeing Rosario among the 
small group that celebrated with John Torres when 
he returned from the hospital on June 20. C.A. App. 
A-1714. Like Ruiz and Fernando Torres, and unlike 
the two alibi witnesses from the trial, Serrano did not 
consider himself to be particularly close to Rosario. 
C.A. App. A-1716.

The fourth additional witness, Ricardo Ruiz, who 
was Chenoa Ruiz’s brother, saw Rosario “[a]ll the 
time” at Torres’s and Seda’s apartment during June 
1996, both before and after their baby was born. C.A. 
App. A-1455.



12

A fifth witness and a sixth witness could have 
testified about a specific incident that occurred in 
Florida around the time of the Bronx murder. Denise 
Hernandez, who dated Rosario throughout June 
1996, and her friend, Lysette Rivera, frequently saw 
Rosario in Florida throughout June 1996. Hernandez 
specifically recalled an argument with Rosario in 
mid-June after he borrowed her car without her 
permission. C.A. App. A-1620-1621. Hernandez was 
upset because a present for her sister’s birthday, 
which was on June 26, had been in the car. C.A. App. 
A-1621.

Rivera also recalled this incident, which she 
believed occurred between five and seven days before 
Hernandez’s sister’s birthday on June 26. C.A. App. 
A-1662-1665. To the extent Hernandez’s testimony 
would have been subject to impeachment due to 
Hernandez’s close relationship with Rosario, Rivera’s 
testimony would have corroborated the testimony.

Finally, a seventh witness, Minerva Godoy, 
testified that Rosario left New York for Florida in 
May 1996. She testified that she did not see him 
again until he returned to New York on July 1, 1996. 
C.A. App. A-1559-1560, A-1565. Godoy explained that 
she was in regular contact with Rosario while he was 
in Florida during this time, that she called him at a 
Florida telephone number, and that she wired money 
to Florida for him via Western Union. C.A. App. A- 
1562-1564. In particular, Godoy recalled that Rosario 
called her from Florida the day after Seda gave birth 
and said that he was going to see the baby. C.A. App. 
A-1564.



13

Rosario’s counsel also testified at the post­
conviction hearing.

Hartsfield testified that she believed it was 
“critical” to speak with Rosario’s alibi witnesses in 
person. C.A. App. A-1042-1043. She further conceded 
that she did not remember that the trial court had 
approved her investigator fee request or why she had 
never conducted an investigation of Rosario’s Florida 
alibi witnesses. C.A. App. A-1047-1048. Moreover, 
Hartsfield acknowledged that the failure to investi­
gate Rosario’s alibi witnesses in Florida was not a 
strategic decision. C.A. App. A-1072.

Trial counsel Kaiser testified that he believed 
that Hartsfield’s request for investigative fees had 
been denied by the court. C.A. App. A-1127-1128, A- 
1200. But he never tried to confirm his understand­
ing with the court, renew the application, or pursue a 
Florida investigation himself. C.A. App. A-1127-1128, 
A-1136, A-1200. Kaiser testified that he would have 
“loved” additional alibi witnesses. C.A. App. A-1183- 
1184, A-1192-1193, A-1963-1966.

b. The state court denied Rosario’s motion to 
vacate the judgment. App., infra, 207a-230a.

The state court noted that both the federal and 
state constitutions guarantee the right to effective 
assistance of counsel. The court explained, however, 
that New York courts had “expressly rejected” the 
Strickland standard in favor of New York’s meaning­
ful representation requirement. App., infra, 222a n*.



14

The state court noted that the New York mean­
ingful representation analysis “is ultimately con­
cerned with the fairness of the process as a whole 
rather than its particular impact on the outcome of 
the case.” App., infra, 222a. As a result, even if a 
“defendant would have been acquitted * * * but for 
counsel’s errors,” that fact is only “ ‘relevant, but not 
dispositive’ ” under the New York constitution. App., 
infra, 223a (quoting Benevento, 697 N.E.2d at 588).

Applying the New York standard, the court 
concluded that both counsel “represented [Rosario] in 
a thoroughly professional, competent, and dedicated 
fashion.” App., infra, 224a. While the court acknowl­
edged that Rosario’s counsel had failed to use court- 
ordered funds to conduct an alibi investigation in 
Florida due to a “misunderstanding or mistake,” that 
failure “was not deliberate” and did “not alter the fact 
that both attorneys represented Rosario skillfully, 
and with integrity and in accordance with the standards 
o f ‘meaningful representation’ defined by [New York’s] 
appellate courts.” App., infra, 226a.

As evidence that Rosario received a fair process, 
the state court also invoked the standard for a claim 
of newly discovered evidence and concluded that the 
discovery of Rosario’s additional alibi witnesses did 
not entitle him to relief. The court reasoned that 
such witnesses would not have been sufficient to 
satisfy the standard for “a motion for new trial based 
on a claim of newly discovered evidence.” App., infra, 
227a. The state court explained that this evidence 
would have been “cumulative to evidence presented



15

at the trial” and should have been discoverable “with 
due diligence.” App., infra, 227a.

4. The Appellate Division denied leave to ap­
peal. App., infra, 232a-233a.

C. Proceedings Below

Rosario filed a petition for a writ of habeas 
corpus in the United States District Court for the 
Southern District of New York.

1. The district court denied habeas relief. Both 
the magistrate and district court judges concluded 
that Rosario received ineffective assistance of counsel 
under the Sixth Amendment. But both also concluded 
that Rosario could not meet 28 U.S.C. § 2254(d)(l)’s 
requirements for habeas relief. App., infra, 61a, 75a, 
137a-138a.

2. A divided court of appeals affirmed. The 
panel majority acknowledged that “some of [its] 
colleagues have cautioned that there may be applica­
tions of the New York standard that could be in 
tension with the prejudice standard in Strickland.” 
App., infra, 12a. And the court recognized that the 
New York standard “creates a danger that some 
courts might misunderstand the New York standard 
and look past a prejudicial error as long as counsel 
conducted himself in a way that bespoke of general 
competency throughout the trial.” App., infra, 15a.

Nevertheless, the court of appeals reaffirmed its 
prior holding that New York’s meaningful representa­
tion standard is not contrary to Strickland under



16

Section 2254(d)(1). App., infra, 15a. The court thus 
explained that Rosario’s only avenue for relief was 
through Section 2254(d)(1)’s unreasonable applica­
tion- criterion. App., infra, 16a. While the court of 
appeals “conclude[d] both prongs of Strickland ha[d] 
been met,” App., infra, 17a, the panel majority never­
theless concluded that Rosario was not entitled to 
habeas relief because the state court’s application of 
Strickland was not unreasonable.

Judge Straub dissented in relevant part, noting 
that the case “presented] an extraordinarily trou­
bling set of circumstances.” App., infra, 21a. The 
dissent explained that Rosario’s “defense attorneys 
* * * failed to investigate his alibi defense adequately 
and did not contact many of the[] potential witnesses.” 
App., infra, 22a. Judge Straub observed that the 
result of this “colossal failure” was the presentation of 
“a relatively weak alibi defense, consisting of only two 
alibi witnesses who were subject to impeachment as 
interested witnesses because they were close friends 
with Rosario.” App., infra, 22a.

As Judge Straub explained, “additional witnesses 
could have made all the difference in the world.” 
App., infra, 37a. Chenoa Ruiz “would have testified 
that she saw Rosario both the night prior to the 
murder, when she took Seda to the hospital, and 
twice throughout the day of the murder, both before 
and after Seda’s doctor’s appointment.” Ibid. Fer­
nando Torres “would have placed Rosario in Florida 
on three consecutive days beginning with the day of 
the murder and would have corroborated [his son’s]



17

testimony that Rosario was with him looking for car 
parts on the nineteenth.” App., infra, 37a-38a. And 
the other alibi witnesses would have provided further 
context “by testifying that they saw Rosario in their 
Florida community throughout June of 1996.” App., 
infra, 37a.

Judge Straub noted that “the state court’s use of 
the ‘meaningful representation’ standard led it to 
focus on certain factors that have little bearing on a 
proper Strickland analysis.” App., infra, 43a. Judge 
Straub explained that the state court “relied heavily” 
on its finding that Rosario’s trial counsel ‘“ represent­
ed [him] in a thoroughly professional, competent, and 
dedicated fashion.’ ” App., infra, 43a (quoting state 
court decision). The dissent noted that the state 
court’s analysis was “entirely at odds with Strick­
land” because it is “axiomatic that, even if defense 
counsel had performed superbly throughout the bulk 
of the proceedings, they would still be * * * found 
deficient in a material way.” App., infra, 44a. And, to 
the extent that state constitutional standard can be, 
and was, applied in a manner less favorable than 
Strickland, that would constitute an error “clearly 
* * * ‘contrary to’ Strickland.” App., infra, 47a.

Judge Straub noted, however, that he did not 
need to confront whether application of the state 
constitutional standard resulted in a decision contrary 
to clearly established federal law because, at a mini­
mum, it was an unreasonable application of Strick­
land. The dissent explained that it was “clear from 
the record that the state court not only unreasonably



18

focused on counsel’s overall performance and mini­
mized their mistakes, but also unreasonably dis­
counted the alibi evidence adduced at the post­
conviction hearing and thus undervalued its prejudi­
cial effect.” App., infra, 48a. Indeed, Judge Straub 
noted that the state court ruling appeared influenced 
by the irrelevant fact that Rosario might not satisfy a 
new trial standard based on “newly discovered evi­
dence” and that it was “unclear when, if ever, the 
court returned to the ineffective assistance of counsel 
analysis.” App., infra, 46a-47a.

3. The Second Circuit denied rehearing en banc 
in a six-to-four vote.

In a five-judge concurrence, Judge Wesley, who 
authored the panel opinion, disagreed that the New 
York constitutional standard was contrary to Strick­
land.

Judge Katzmann, in his separate concurrence, 
noted that the New York standard “could leave room 
for New York courts to find a lawyer effective by 
focusing on the ‘fairness of the process as a whole’ ” 
rather than Strickland’s prejudice requirement, but 
that such a result did not occur in this case. App., 
infra, 241a (quoting Benevento, 697 N.E.2d at 588).



19

Four judges dissented from the denial of rehear­
ing en banc.1 Chief Judge Jacobs’s opinion on behalf 
of the four dissenters explained that New York’s 
meaningful representation standard is “contrary to 
the standard set forth in Strickland.” App., infra, 
242a. The Chief Judge explained that the “New York 
test averages out the lawyer’s performance while 
Strickland focuses on any serious error and its conse­
quences.” App., infra, 244a. This dissent noted that, 
as a result of the state constitutional standard, “the 
gravity of individual mistakes may be submerged in 
an overall assessment of effectiveness, in a way that 
violates the federal Constitution.” App., infra, 247a.

In addition to joining the Chief Judge’s dissent, 
Judge Pooler filed a separate dissent. She empha­
sized that the “state standard can act to deny relief 
despite an egregious error from counsel so long as 
counsel provides an overall meaningful representa­
tion”—a result “contrary to Strickland.” App., infra, 
248a.

While sharply divided as to the outcome of this 
case, the full court of appeals agreed in one respect: 
“that New York state courts would be wise to engage 
in separate assessments of counsel’s performance 
under both the federal and state standards.” App., *

In addition to the four judges dissenting from the denial of 
rehearing, Senior Judge Straub also “endorsed the views ex­
pressed” in Chief Judge Jacobs’s dissenting opinion. App., infra, 
242a n.l.



20

infra, 240a (Wesley, J., concurring). “Such an exer­
cise would ensure that the prejudicial effect of each 
error is evaluated with regard to outcome * * 
App., infra, 240a; see also App., infra, 241a 
(Katzmann, J., concurring); App., infra, 247a (Jacobs, 
C.J., dissenting); App., infra, 248a-249a (Pooler, J., 
dissenting).

REASONS FOR GRANTING THE PETITION
REVIEW IS NECESSARY BECAUSE NEW 
YORK’S “MEANINGFUL REPRESENTATION” 
STANDARD RESULTS IN DECISIONS THAT 
ARE CONTRARY TO, OR AN UNREASONABLE 
APPLICATION OF, STRICKLAND V. WASH­
INGTON

This Court should grant review of the Second 
Circuit’s blanket rule that application of New York’s 
state constitutional meaningful representation 
standard to Sixth Amendment claims of ineffective 
assistance does not result in a ruling contrary to 
clearly established federal law. Under the state 
constitutional standard, New York courts are not 
guided by whether “there is a reasonable probability 
that, but for counsel’s unprofessional errors, the 
result of the proceedings would have been different.” 
Strickland v. Washington, 466 U.S. 668, 694 (1984). 
Rather, as the Second Circuit explained, under the 
state standard, a defendant must “demonstrate that 
he was deprived of a fair trial overall.” App., infra, 
11a. That result squarely conflicts with Williams v. 
Taylor, 539 U.S. 362 (2000), where this Court held 
that it would be contrary to clearly established federal 
law for a state court to compel a prisoner to prove



21

more than Strickland requires. It also conflicts with 
the decisions of other courts of appeals, which have 
not hesitated to grant habeas relief when a state 
court, to a habeas petitioner’s detriment, has substi­
tuted its own standard for Strickland. Here, applica­
tion of New York’s different state standard resulted in 
a decision that was contrary to, and an unreasonable 
application of, Strickland. As Chief Judge Jacobs 
explained in his dissent, absent review, “this defect 
will likely give rise to more cases that will bedevil the 
district courts, which are left to sort out case-by-case 
a problem that is systemic.” App., infra, 242a.

A. The Ruling Below Conflicts With The Habe­
as Decisions Of This Court And Other 
Courts Of Appeals

Review by this Court is warranted because 
application of the New York state constitutional 
standard to federal ineffective assistance of counsel 
claims results in decisions that are “contrary to” or an 
“unreasonable application of” clearly established 
federal law. 28 U.S.C. § 2254(d)(1). 1

1. Contrary to clearly established federal 
law

a. In this case, the Second Circuit once again 
reaffirmed its previous holding that application of 
New York’s state constitutional standard to federal 
ineffective assistance of counsel claims is not contrary 
to Strickland. But, as the dissenting judges explain, 
New York’s state constitutional standard sharply 
departs from Strickland. Thus, in a class of cases,



22

including this one, that different state standard 
results in rulings that are contrary to Strickland.

Indeed, the panel majority and the opinions 
concurring in the denial of rehearing en banc all 
acknowledge, as they must, that “New York’s test for 
ineffective assistance of counsel differs from the 
federal Strickland standard.” App., infra, 10a, 238a 
(Wesley, J., concurring); see also App., infra, 241a 
(Katzmann, J., concurring). For example, rather than 
examine whether “the identified acts or omissions 
were outside the wide range of professionally compe­
tent assistance,” Strickland, 466 U.S. at 690 (empha­
sis added), the state court focused on the fact that the 
error was a “misunderstanding or mistake” and was 
“not deliberate.” App., infra, 226a. And contrary to 
this Court’s requirements, that state standard does 
not examine whether there is a “reasonable proba­
bility that, but for counsel’s unprofessional errors, the 
result of the proceeding would have been different.” 
Strickland, 466 U.S. at 694. Instead, New York’s 
standard asks “whether the error affected the fair­
ness of the process as a whole.” App., infra, 222a 
(citing People v. Benevento, 697 N.E.2d 584, 588 (N.Y. 
1998)).

Application of this state law standard to federal 
constitutional claims can and does result in decisions 
that cannot be reconciled with Strickland. As the 
panel majority recognized, the state law standard 
“creates a danger that some courts might misunder­
stand the New York standard and look past a prejudi­
cial error as long as counsel conducted himself in a 
way that bespoke of general competency throughout



23

the trial.” App., infra, 15a. Similarly, Judge Wesley, 
while concurring in denial of en banc review, 
acknowledged that the state constitutional standard 
can “be misapplied to diminish prejudicial effect of a 
single error.” App., infra, 238a. And Judge 
Katzmann likewise recognized that the state consti­
tutional standard “could leave room for New York 
courts to find a lawyer effective by focusing on the 
‘fairness of the process as a whole,’ rather than on 
whether ‘there is a reasonable probability that. . . the 
result of the proceeding would have been different’ 
absent defense counsel’s mistakes.” App., infra, 241a 
(citations omitted) (ellipses in original).

In short, as the four judges dissenting from the 
denial of rehearing en banc explain, the state consti­
tutional standard “allows the gravity of individual 
errors to be discounted indulgently by a broader view 
of counsel’s overall performance.” App., infra, 244a. 
Whereas Strickland “focuses on any serious error and 
its consequences,” the New York standard “averages 
out the lawyer’s performance.” App., infra, 244a.

And the Second Circuit is not misreading the 
New York state constitutional standard. As the New 
York Court of Appeals has explained, the state law 
standard is more “concerned with the fairness of the 
process as a whole rather than its particular impact 
on the outcome of the case.” Benevento, 697 N.E.2d at 
588. Indeed, the New York Court of Appeals has 
“rejected ineffective assistance claims despite signifi­
cant mistakes by defense counsel,” because that court 
concluded that the counsel’s “overall performance



24

[was] adequate.” People v. Turner, 840 N.E.2d 123, 
126 (N.Y. 2005). To the extent the New York Court of 
Appeals has held that a single error can amount to 
the absence of meaningful representation, it requires 
that error to be “clear-cut and completely dispositive.” 
Ibid. But Strickland does not require such absolute 
proof: a habeas petitioner must demonstrate only 
that, but for counsel’s errors, there is a “reasonable 
probability” that the outcome would have been differ­
ent.

Here, the state court ignored Strickland’s preju­
dice standard, and instead expounded that under the 
state standard, “whether defendant would have been 
acquitted of the charge but for counsel’s errors is 
‘relevant, but not dispositive’ ” to an ineffective assis­
tance of counsel claim. App., infra, 223a.

b. The Second Circuit’s blanket holding that the 
New York standard is not contrary to Strickland— 
even though the state standard can require more 
than Strickland—cannot be reconciled with the 
decisions of this Court and other courts of appeals.

In Williams v. Taylor, 529 U.S. 362 (2000), this 
Court held that a state court decision is contrary to 
clearly established federal law “if the state court 
applies a rule that contradicts the governing law set 
forth in [the Court’s] cases.” Id. at 405. Thus, the 
Court held that the Virginia Supreme Court’s injec­
tion of a “fundamental fairness” requirement into 
federal ineffective assistance of counsel claims was 
contrary to Strickland. Id. at 393. This was so



25

because the state court denied the prisoner’s Sixth 
Amendment claim even when he could “show that his 
lawyer was ineffective and that his ineffectiveness 
probably affected the outcome of the proceeding.” Id. 
at 393. Indeed, like the state court ruling in this 
case, the Virginia Supreme Court’s decision “turned 
on its erroneous view that a ‘mere’ difference in 
outcome is not sufficient to establish constitutionally 
ineffective assistance of counsel.” Id. at 397.

The Second Circuit’s decision also conflicts with 
the rulings of other courts of appeals. The Seventh 
Circuit has held that a state court decision is contrary 
to clearly established federal law if it imposes a 
requirement on a habeas petitioner that is incon­
sistent with Strickland. Goodman v. Bertrand, 467 
F.3d 1022, 1026 (7th Cir. 2006). Thus, the Seventh 
Circuit held that the Wisconsin court’s requirement 
that a habeas petitioner prove that the proceeding 
was “fundamentally unfair” altered Strickland’s 
prejudice requirement in a manner that was “ ‘contra­
ry to’ clearly established federal law.” Id. at 1028 
(citation omitted).

The Tenth Circuit reached a similar conclusion. 
There, the state court held that a “ ‘mere showing 
that a conviction would have been different but for 
counsel’s errors [did] not suffice to sustain a Sixth 
Amendment claim,’ without an additional inquiry into 
the fairness of the proceeding.” Spears v. Mullin, 343 
F.3d 1215, 1248 (10th Cir. 2003) (citation omitted), 
cert, denied, 541 U.S. 909 (2004). The Tenth Circuit 
explained that application of that “more onerous



26

standard was contrary to” Strickland. Ibid.; see also 
Cargle v. Mullin, 317 F.3d 1196, 1203-05 (10th Cir. 
2003) (because Oklahoma’s ineffective assistance of 
counsel test requires habeas petitioners to “establish 
not only a meritorious omitted issue but also an 
improper motive or cause behind counsel’s omission of 
the issue,” state court rulings based on that standard 
are not entitled to deference).

And the Fifth Circuit similarly has explained 
that “to the extent that the state habeas court’s 
‘decision turned on its erroneous view that a “mere” 
difference in outcome is not sufficient to establish 
constitutionally ineffective assistance of counsel,’ the 
court’s analysis was ‘contrary to’ S tricklandY oung  
v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004) (quoting 
Williams, 529 U.S. at 397).

Indeed, the overwhelming precedent of other 
courts of appeals holds that a state ineffective assis­
tance of counsel standard is contrary to clearly estab­
lished federal law when it is applied in a manner that 
compels a state prisoner to prove more than a “rea­
sonable probability” that the outcome at trial would 
have been different. Saranchak v. Beard, 616 F.3d 
292 (3d Cir. 2010) (Pennsylvania Supreme Court 
“subjective review” prejudice requirement contrary to 
Strickland's objective standard); Hummel v. Rosemeyer, 
564 F.3d 290, 305 (3d Cir.), cert, denied, 130 S. Ct. 
784 (2009); Young v. Sirmons, 486 F.3d 655, 680 (10th 
Cir. 2007) (Oklahoma Court of Criminal Appeals’ re­
quirement that a habeas petitioner show prejudice 
by “ ‘clear and convincing evidence’ ” contrary to



27

Strickland), cert, denied, 552 U.S. 1203 (2008); 
Cooper-Smith v. Palmateer, 397 F.3d 1236, 1243 (9th 
Cir.) (Oregon court’s “more probable than not” preju­
dice requirement contrary to Strickland), cert, de­
nied, 546 U.S. 944 (2005); Magana v. Hofbauer, 263 
F.3d 542 (6th Cir. 2001) (Michigan Court of Appeals’ 
standard requiring habeas petitioner to demonstrate 
“an absolute certainty that the outcome of the pro­
ceedings would be different” contrary to Strickland)', 
Rose v. Lee, 252 F.3d 676, 689 (4th Cir.) (North Caro­
lina court “applied the wrong burden of proof with 
respect to the prejudice prong” when it required the 
defendant to prove the result of the proceeding would 
be different “ ‘by the preponderance of the evidence’ ”), 
cert, denied, 534 U.S. 941 (2001).

To be sure, there can be instances where a state 
standard is phrased differently from Strickland, yet it 
is not contrary to clearly established federal law. In 
such cases, however, other courts of appeals have 
held that the state law standard must be “the ‘func­
tional equivalent of Strickland.'1'" Castillo v. 
Matesanz, 348 F.3d 1, 12 (1st Cir. 2003) (quoting 
Ouber v. Guarino, 293 F.3d 19, 31 (1st Cir. 2002)), 
cert, denied, 543 U.S. 822 (2004). For example, the 
First Circuit has explained that the Massachusetts 
and Strickland standards differ only in a “minor 
variation in phraseology.” Id. at 14. But, unlike the 
New York standard applied in this case, that state 
law standard is only linguistically different from 
Strickland. It did not conflate the performance and 
prejudice requirements of Strickland, so that an



28

outcome determinative error by counsel is overlooked 
due to counsel’s otherwise positive performance. By 
endorsing a state law standard that allows outcome- 
determinative errors to be overlooked, the Second 
Circuit is so out of step with the precedent of this 
Court and other courts of appeals that summary 
reversal may be warranted.

c. The state court’s departure from Strickland 
made the difference in this case.

Had the proper standard been applied, Rosario 
unquestionably would have been entitled to relief 
under Strickland. That is established by the opinions 
below. Every federal judge who has reviewed the 
record in this case has found a federal constitutional 
violation. The magistrate judge, the district court 
judge, and all three judges on the Second Circuit 
panel agreed that Rosario received constitutionally 
deficient representation under Strickland and would 
be entitled to relief under de novo review. App., infra, 
137a, 61a, 17a, 21a-23a. It was only because the 
decisions below deferred to the state court ruling 
under 28 U.S.C. § 2254(d)(1) that habeas relief was 
denied. But that deference was unwarranted. The 
state court never applied Strickland (or any standard 
sharing Strickland’s reasoning). Instead, the state 
court applied a state law standard that the state 
court understood as having “expressly rejected” this 
Court’s approach. App., infra, 222a n*.

Nor does the fact that the New York Court of 
Appeals believes that, in some circumstances, the



29

New York standard may be more favorable to defen­
dants than Strickland excuse the outcome in this 
case. App., infra, 11a; see also Turner, 840 N.E.2d at 
125-126 (noting that the “meaningful representation” 
standard may be “somewhat more favorable to de­
fendants”). While the New York standard might be 
more protective for defendants as applied in some 
other cases, the state court’s application of its own 
state law standard here led to a result that fell well 
below (and thus was contrary to) what Strickland 
requires. Rather than examine whether “there is a 
reasonable probability that, but for counsel’s unpro­
fessional errors, the result of the proceedings would 
have been different,” the state court noted that 
Rosario’s counsel “represented defendant in a thor­
oughly professional, competent, and dedicated fashion” 
and that their error was only a “misunderstanding or 
mistake” rather than “deliberate.” App., infra, 226a.

Indeed, to the extent the state court examined 
what effect Rosario’s counsel’s error had on the out­
come at all, it erroneously did so through the prism of 
the state law standard for a new trial based on newly 
discovered evidence. App., infra, 227a. But this 
Court in Strickland rejected that very approach. 
Strickland, 466 U.S. at 694 (rejecting as “not quite 
appropriate” a standard that “comports with the 
widely used standard for assessing motions for new 
trial based on newly discovered evidence”). Neverthe­
less, the state court appeared to explain that Rosario 
would not be entitled to relief under that new trial 
standard because the alibi evidence was “cumulative”



30

to the evidence presented at trial and the “existence” 
of his alibi witnesses “was known to the defendant” 
before the trial began. App., infra, 227a-228a. That 
misses the point: it was Rosario’s counsel’s failure to 
investigate the abundance of known alibi witnesses 
that was at issue. And the state court excused any 
harm it did find based on its belief that Rosario’s 
counsel otherwise performed in a professional man­
ner. App., infra, 229a.

In any event, the missing alibi evidence was 
anything but “cumulative.” As the panel dissent 
explained, “additional witnesses could have made all 
the difference in the world.” App., infra, 37a. As 
discussed below (see pp. 33-35, infra), the additional 
witnesses would have corroborated Rosario’s alibi, 
provided a fuller picture of his presence in Florida 
throughout June 1996, shown additional details at 
and around the time of the murder, and been less 
vulnerable to impeachment than the two friends who 
testified at Rosario’s trial. Moreover, in order to 
convict Rosario, rather than “disbelieving two alibi 
witnesses who were good friends with Rosario and 
Rosario himself, the jury would have had to discredit 
at least seven additional witnesses, who would have 
corroborated Rosario’s alibi, provided further context 
to his defense and testified to additional facts that 
had not been elicited at trial.” App., infra, 31a-32a 
(Straub, J., dissenting in part and concurring in 
part).



31

Because the state court applied a state law 
standard incompatible with and more stringent than 
Strickland, the state court ruling is contrary to the 
“governing law” of this Court. Williams, 529 U.S. at 
405. Application of that standard led to the denial 
of Rosario’s Sixth Amendment claim. Review and 
reversal by this Court is warranted.

2. Unreasonable application o f clearly es­
tablished federal law

Even if New York’s one-part meaningful repre­
sentation standard were not “contrary to” Strick­
land’s two-part test, this Court’s review is 
nevertheless necessary because the different state 
constitutional standard results in decisions that are 
“an unreasonable application of” clearly established 
federal law. 28 U.S.C. § 2254(d)(1).

As this Court has explained, a state court deci­
sion amounts to an unreasonable application of 
Strickland when it applies the “governing legal rule” 
in an unreasonable manner to a particular habeas 
petitioner’s case. Williams, 529 U.S. at 407-408. “In 
order for a federal court to find a state court’s appli­
cation of [the Court’s] precedent ‘unreasonable,’ the 
state court’s decision must have been more than 
incorrect or erroneous.” Wiggins v. Smith, 539 U.S. 
510, 520 (2003). That standard is met here. And, if 
the Second Circuit’s decision is not reversed, such 
unreasonable applications of this Court’s law to 
federal ineffectiveness claims by New York state 
prisoners will no doubt recur.



32

Because the state court applied the New York 
standard to Rosario’s Sixth Amendment claim, the 
state court examined only whether Rosario received 
“meaningful representation.” App, infra, 222a. It did 
not separately examine Rosario’s counsel’s perfor­
mance and resulting prejudice. App., infra, 222a- 
223a. To salvage the state court’s analysis, the Se­
cond Circuit panel majority “translated” the state 
court ruling into Strickland terminology. Id. at 19a. 
But that artificial dissection of the state court ruling 
overlooked the fact that the state court, in applying 
its own test, focused on “certain factors that have no 
bearing” on Strickland. App., infra, 43a (Straub, J., 
dissenting in part and concurring in part). And those 
factors infected the state court’s entire analysis. 
App., infra, 246a (Jacobs, C.J., dissenting to denial of 
rehearing en banc) (“a finding on a mixed question of 
law and fact (such as prejudice) is suspect (at least) if 
it is guided by a defective understanding of the law”).

First, the panel majority read the state court 
ruling as having somehow implicitly addressed 
Strickland’s performance prong. The panel majority 
asserted that the state court found no deficiency in 
Rosario’s counsel’s performance, and the panel con­
cluded that that finding was not an unreasonable 
application of Strickland. The Second Circuit ex­
plained that the state court found that Rosario’s 
counsel acted in a professional manner and that the 
failure to investigate further alibi witnesses did “ ‘not 
alter this finding.’ ” App., infra, 18a (quoting state 
court). But a single error by counsel can amount to



33

deficient performance under Strickland. As the panel 
dissent concluded, Rosario’s “counsel essentially 
turned a blind eye to the existence of substantial 
potentially exculpatory evidence of which it was 
aware and, moreover, did so not on the basis of any 
reasonable professional judgment, but rather as a 
result of pure inadvertence.” App., infra, 48a-49a 
(internal quotation marks and citation omitted). 
Indeed, counsel conceded there was no legal strategy 
to forgoing a more thorough alibi investigation. And 
this Court has long recognized that a failure to inves­
tigate available exculpatory evidence and to make an 
informed judgment about whether to use it at trial is 
rarely, if ever, excusable. Kimmelman v. Morrison, 
477 U.S. 365, 385 (1986). In that regard, the state 
court’s conclusion was an unreasonable application of 
Strickland’s performance prong.

Second, as to Strickland’s prejudice prong, the 
panel majority cobbled together the conclusion that 
the state court implicitly found no prejudice, pointing 
to the state court’s conclusion that Rosario’s counsel 
put on the best witnesses and the alibi evidence was 
largely cumulative. App., infra, 19a-20a. But it was 
objectively unreasonable for the state court to deem 
the alibi evidence cumulative. After all, the state 
court’s reasoning was based at least in part on its 
importation of a state law standard for a “motion for 
new trial based on a claim of newly discovered evi­
dence,” where relief will not be granted if the evi­
dence is “cumulative to evidence presented at trial.” 
App., infra, 227a.



34

Indeed, the state court compared the two trial 
witnesses with the seven post-conviction witnesses, 
concluding that the latter were “not as persuasive” as 
the two who testified at trial. App., infra, 230a. But 
the state court never considered the effect that the 
additional witness testimony would have had in 
confirming and supporting the testimony of the two 
trial witnesses or the mutually reinforcing nature of 
the additional alibi testimony. See Williams, 529 U.S. 
at 397-398 (holding that the state court’s “prejudice 
determination was unreasonable insofar as it failed to 
evaluate the totality of the available * * * evidence— 
both that adduced at trial, and the evidence adduced 
in the habeas proceeding”). As the panel dissent 
explained:

All of the other witnesses * * * would have 
* * * testified] that they saw Rosario in their 
Florida community throughout June of 1996. 
They would have provided specific facts re­
garding where he lived and what he was do­
ing at the time. Several witnesses could have 
corroborated each other’s testimony that 
Rosario was in Florida on the exact day of 
the murder and in the immediately sur­
rounding days.

App., infra, 37a. As this Court has explained, “testi­
mony of more disinterested witnesses” is not cumula­
tive of a defendant’s own self-serving testimony 
because it “would quite naturally be given much 
greater weight by the jury.” Skipper v. South Carolina, 
476 U.S. 1, 8 (1986).



35

And such evidence would have been particularly 
important given the relative weakness of the prosecu­
tion’s case. The prosecution based its entire case on 
the testimony of two stranger eyewitnesses. No other 
evidence linked petitioner to the crime. United States 
v. Wade, 388 U.S. 218, 235 (1967) (noting that eye­
witness accounts of strangers can be “ ‘proverbially 
untrustworthy’ ” (citation omitted)); Manson v. 
Brathwaite, 432 U.S. 98, 112 (1977) (“The witness’ 
recollection of the stranger can be distorted easily by 
the circumstances or by later actions of the police.”).

This missing alibi evidence would have provided 
“indisputably critical data points in establishing that 
Rosario was in Florida, and not over 1000 miles away 
in New York, when the victim was murdered.” App., 
infra, 38a (Straub, J., dissenting in part and concur­
ring in part). In short, the state court “unreasonably 
discounted” the additional evidence that was critical 
to the defense that Rosario’s counsel failed to investi­
gate adequately. Porter v. McCollum, 130 S. Ct. 447, 
454 (2009) (per curiam).

B. Continued Application Of New York’s 
“Meaningful Representation” Standard 
Will Prejudice Habeas Petitioners And 
Burden Federal Courts

1. Absent this Court’s review, New York courts 
will continue to apply the different state constitution­
al standard to federal ineffective assistance of counsel 
claims. Because the Second Circuit has categorically 
held that New York’s “meaningful representation”



36

standard is not contrary to Strickland, federal courts 
will struggle to fit those state court rulings into 
Section 2254(d)(l)’s unreasonable application analysis.

This concern is not inchoate. Each year, the New 
York courts apply the State’s “meaningful representa­
tion” standard to numerous cases where state prison­
ers claim ineffective assistance of counsel. Many of 
these cases subsequently will be filed under Section 
2254 as federal habeas cases. Thus, as Chief Judge 
Jacobs observed in his dissent from the denial of 
rehearing en banc, “this defect likely will give rise to 
more cases that will bedevil the district courts, which 
are left to sort out case-by-case a problem that is 
systemic.” App., infra, 242a.

Indeed, in a tacit acknowledgment that the state 
law standard is contrary to Strickland and will 
continue to impose a significant burden on the federal 
judiciary, every active judge on the Second Circuit 
recommended, in response to Rosario’s petition for 
rehearing en banc, that New York state courts apply 
both the federal and state standards to “ensure that 
the prejudicial effect of each error is evaluated with 
regard to outcome.” App., infra, 240a (Wesley, J., 
concurring); see also App., infra, 241a (Katzmann, J., 
concurring); App., infra, 247a (Jacobs, C.J., dissent­
ing); App., infra, 248a-249a (Pooler, J., dissenting). 
This directive from the Second Circuit to New York 
state courts reveals that the active judges on the 
Second Circuit have no confidence that New York 
courts are actually applying the malleable New York



37

standard in a manner consistent with Strickland. If 
the meaningful representation standard were in fact 
always at least as protective as Strickland, this 
recommendation would have been unnecessary. In 
any event, Strickland is not simply a recommenda­
tion to be followed only as state courts see fit. The 
New York courts’ failure to apply it in this case and 
many others makes this Court’s review imperative.

2. Moreover, it now should be plain that the 
recurring issue raised by this petition will not be 
resolved absent this Court’s review.

While the Second Circuit long has struggled to 
reconcile New York’s meaningful representation 
standard with Strickland, it has done so without 
success. A decade ago, the court of appeals first 
concluded that application of the state constitutional 
standard to Sixth Amendment ineffective assistance 
of counsel claims was not contrary to Strickland. 
Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001); 
Loliscio v. Goord, 263 F.3d 178, 193 (2d Cir. 2001). 
Subsequent decisions have held that the Second 
Circuit is “bound to follow” that precedent. Eze v. 
Senkowski, 321 F.3d 110, 124 (2d Cir. 2003).

Although some members of the Second Circuit 
have expressed the view that the New York state 
standard and Strickland might conflict, the Second 
Circuit has not taken the issue en banc. For example, 
in Henry v. Poole, 409 F.3d 48 (2d Cir. 2005), cert, 
denied, 547 U.S. 1040 (2006), the Second Circuit



38

paused on, but did not address, “whether the New 
York standard is not contrary to Strickland.” Id. at 
70. And, in a separate opinion in Poole, Judge Sack 
concluded that, “assuming that the Supreme Court 
does not give us guidance in the interim, we might be 
well advised to consider the appeal for en banc review 
as a means to reconsider the issue.” Id. at 72-73 
(Sack, J., concurring). The denial of rehearing en 
banc in this case makes clear, however, that a majori­
ty of the full court of appeals has declined to heed 
that advice and that this Court’s guidance is now 
needed.

3. Finally, this case presents an ideal vehicle to 
address the question presented. As shown above, 
application of the New York standard was outcome- 
determinative in this case. Every federal judge who 
has examined Rosario’s Sixth Amendment ineffective 
assistance of counsel claim-—the magistrate judge, 
the district court judge, and all three judges on the 
Second Circuit panel—has concluded that Rosario 
received constitutionally deficient assistance of 
counsel and was prejudiced as a result of counsel’s 
error. App., infra, 137a, 61a, 17a, 21a-23a.

CONCLUSION
For the reasons set forth above, the petition for a 

writ of certiorari should be granted. The Court may 
wish to consider summarily reversing the judgment of



39

the court of appeals; in the alternative, the Court 
should set the case for briefing and oral argument.

Respectfully submitted,
John Payton 

Director-Counsel 
Debo P. Adegbile 
Christina Swarns 
Jin Hee Lee
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson St., Suite 1600 
New York, NY 10013
Leah F. W ilson 
Morrison & Foerster llp 
425 Market St.
San Francisco, CA 94105

Deanne E. Maynard 
Counsel of Record 

Brian R. Matsui 
Morrison & Foerster llp 
2000 Pennsylvania Ave., N.W. 
Washington, D.C. 20006 
(202) 887-1500 
dmaynard@mofo.com
Carl H. Loewenson, Jr. 
Le d aA. Moloff 
M orrison & Foerster llp 
1290 Avenue of the Americas 
New York, NY 10104
Counsel for Petitioner

December 29, 2010

mailto:dmaynard@mofo.com


la

APPENDIX A
UNITED STATES COURT OF APPEALS

For the Second C ircuit

August Term, 2009
(Argued: November 19, 2009 Decided: April 12, 2010) 

Docket No. 08-5521-pr

Richard Rosario,

Petitioner-Appellant,
— v. —

Supt. Robert E rcole, Green H aven Correctional 
Facility , A ttorney General E liot Spitzer,

Respondents-Appellees.

Before:

Cabranes, Straub , W esley, Circuit Judges.

Richard Rosario appeals from a judgment of the 
United States District Court for the Southern District 
of New York (Castel, J.), entered on October 23, 2008, 
denying his petition for a writ of habeas corpus. We 
hold that the state court’s review of Rosario’s ineffec­
tive assistance of counsel claims was neither contrary 
to, nor an unreasonable application of, Strickland v. 
Washington, 466 U.S. 668 (1984).



2a

Affirmed. Judge Straub concurs in part and 
dissents in part in a separate opinion.

Jodi K. M iller, Morrison & Foerster, LLP, New York, 
N.Y. (Carl H. Loewenson, Morrison & Foerster, 
LLP, New York, NY, and Jin Hee Lee, NAACP 
Defense and Education Fund, Inc., on the brief), 
for Petitioner-Appellant.

Joseph N. F erdenzi, Assistant District Attorney, 
Bronx, N.Y. (Christopher J. Blira-Koessler, Assis­
tant District Attorney, Bronx, NY, for Robert T. 
Johnson, District Attorney, Bronx County), for 
Respondents-Appellees.

W esley , Circuit Judge:

This case requires us to examine New York law 
and analyze one sentence in a New York Court of 
Appeals opinion that has troubled our circuit since its 
publication.

Background
On June 19, 1996, George Collazo was shot and 

killed in the Bronx while walking with his friend 
Michael Sanchez. The daytime shooting followed an 
argument sparked by Collazo’s racial epithet to two 
men as he and Sanchez passed them. Sanchez later 
identified appellant Richard Rosario as Collazo’s 
assailant. Robert Davis, a porter working at a nearby 
building, witnessed the murder and also identified



3a

Rosario as the shooter. A third eyewitness was also 
present, but did not identify Rosario as a participant 
in the crime.

Rosario was arrested for the murder on July 1, 
1996, after he voluntarily returned to New York from 
Florida. From the time of his arrest, Rosario claimed 
he was in Florida when Collazo was shot. Rosario 
provided the police with a statement, maintained his 
innocence, and listed the names of thirteen people 
who could corroborate his alibi.

Before Rosario’s trial began, he was assigned 
Joyce Hartsfield as counsel. Hartsfield brought an 
application before the court requesting funds for a 
private investigator to travel to Florida and interview 
the potential alibi witnesses. The court granted the 
application. Hartsfield was eventually replaced as 
counsel by Steven Kaiser in February of 1998. Kaiser 
had a mistaken belief that the application for investi­
gation fees had been denied. Kaiser did not make a 
request for fees; no investigation of alibi witnesses 
was done in Florida.

During the trial, the prosecution called Sanchez 
and Porter, who identified Rosario as the shooter, and 
the third eyewitness, who failed to identify Rosario. 
The defense presented two alibi witnesses -  John 
Torres, a friend of Rosario, and Jenine Seda, John 
Torres’ fiancee. Both testified that Rosario was living 
with them in Florida when the murder occurred. 
They remembered the date because their first child 
was born on June 20th, a day after the murder.



4a

Rosario took the stand in his own defense and 
testified that he was in Florida through June 30, 
1996. Rosario stated he lived with a woman named 
Shannon Beane from February through April of 
1996. The prosecution rebutted this assertion with 
Rosario’s Florida arrest record, which indicated that 
he was arrested in March of 1996 and imprisoned 
until April of that year. The jury convicted Rosario of 
second degree murder, and the court sentenced him to 
25 years to life.

After Rosario’s unsuccessful direct appeal of his 
conviction, see People v. Rosario, 733 N.Y.S.2d 405 
(1st Dep’t 2001), leave denied 97 N.Y.2d 760 (2002), 
he filed a motion to vacate his conviction under 
Section 440.10(1)1 of the New York Criminal Proce­
dure Law on the grounds that he was deprived effec­
tive assistance of counsel at trial. The Bronx County 
Supreme Court held a hearing, at which Rosario’s 
attorneys (Hartsfield and Kaiser), the private inves­
tigator, and seven alibi witnesses testified. Hartsfield 
testified that she did not pursue documentary records 
to support Rosario’s alibi defense, including records 
from Western Union that were subsequently de­
stroyed and a police field report detailing Rosario’s

1 The relevant part of the New York statute governing a 
motion to vacate a judgment reads: “At any time after the entry 
of a judgment, the court in which it was entered may, upon 
motion of the defendant, vacate such judgment upon the ground 
that: .. . (h) The judgment was obtained in violation of a right of 
the defendant under the constitution of this state or of the 
United States.” N.Y. Crim. Proc. Law § 440.10(1).



5a

stop by Florida police on May 30, 1996. She also 
testified that, though she retained a private investi­
gator and received funding from the court to send the 
investigator to Florida to investigate the alibi wit­
nesses, she did not instruct the private investigator to 
do so. She conceded there was no strategic reason 
behind that choice.

Kaiser, for his part, stated that he did not know 
where he got the misimpression that the court had 
denied investigatory funds. He testified that he did 
attempt to locate or contact alibi witnesses in Florida, 
working from New York alone. When asked if the two 
alibi witnesses he called were the best witnesses, he 
replied “they were the only two,” and he would have 
preferred to call additional alibi witnesses.

Jesse Franklin, the private investigator, testified 
that she had a meeting with Rosario where he pro­
vided her with a list of names for alibi witnesses. She 
attempted to reach all the people on the list via 
telephone, though it was difficult to do so because 
many of them had moved. Franklin raised these 
difficulties with Hartsfield, who instructed her to 
draft an affidavit detailing her difficulties for an 
application to the court for additional investigatory 
funds to send Franklin to Florida. She believed 
traveling to Florida was necessary to investigate 
properly Rosario’s alibi. She never heard from Harts­
field again about the application and assumed that it 
had been denied. Despite not traveling to Florida, 
Franklin did manage to contact two of the witnesses 
on the list, Fernando and Robert Torres, both of



6a

whom told Franklin that they had seen Rosario in 
Florida in late June of 1996. Franklin did not contact 
those men again. However, Franklin did later contact 
the two witnesses who were actually called at trial, 
Jenine Seda and John Torres, and was told by John 
Torres that he could provide the names of other alibi 
witnesses. Franklin tried unsuccessfully to telephone 
other witnesses that Rosario had named.

At the end of the hearing, the state court con­
cluded that Hartsfield and Kaiser had provided 
Rosario with “meaningful representation” under New 
York law. The court detailed the testimony of each 
witness, and concluded that the two witnesses pre­
sented at trial were the “most credible among the 
possible alibi witnesses.” Rosario v. Ercole, 582 
F. Supp. 2d 541, 550 (S.D.N.Y. 2008). The court also 
determined that the testimony of several of the 
proffered alibi witnesses could have undermined 
Rosario’s alibi defense in the eyes of the jury.

The state court noted that Rosario’s right to 
effective assistance of counsel was guaranteed by 
both the federal and state constitutions. The court 
contrasted the federal standard set forth in Strick­
land with the New York standard employed under the 
state constitution. After a lengthy analysis under the 
New York constitutional standard, the court con­
cluded that Rosario had received “meaningful repre­
sentation” as required by New York’s constitution. 
The court also concluded that the government’s case 
was “strong”; that the prospective alibi witnesses 
“were, for the most part, questionable and certainly



7a

not as persuasive as the two witnesses who did 
testify”; and that the verdict was “unimpeached, and 
‘amply supported by the evidence.” ’2

Rosario filed a petition for a writ of habeas 
corpus in the United States District Court for the 
Southern District of New York (Castel, J.). Rosario v. 
Ercole, 582 F. Supp. 2d 541 (S.D.N.Y. 2008). The 
district court requested a report and recommendation 
from a magistrate judge (Pitman, M.J.). Id. at 545. 
The magistrate judge and the district court concluded 
that counsels’ performance was in fact deficient under 
Strickland. Id. at 551. However, both determined that 
the state court’s decision to deny Rosario’s motion to 
vacate was not an unreasonable application of, nor 
contrary to, clearly established federal law. Id. at 552- 
53. This appeal followed.

Discussion
Under the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”), a federal court may 
only grant a writ of habeas corpus for a claim that 
has been adjudicated on the merits by a state court if 
the adjudication of the claim:

Upon appeal, the New York Appellate Division, First De­
partment, did not address the ineffective assistance claim. 
People v. Rosario, 733 N.Y.S.2d 405 (1st Dep’t 2001). The New 
York Court of Appeals denied leave to appeal. People v. Rosario, 
97 N.Y.2d 760, 760 (2002) (Ciparick, J.).



8a

(1) resulted in a decision that was contrary 
to, or involved an unreasonable application 
of, clearly established Federal law, as deter­
mined 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).

Rosario argues that the state court decision 
denying his claim for ineffective assistance of counsel 
was both an unreasonable application of, and con­
trary to, the clearly established federal standard 
under the first subsection of § 2254(d). Because the 
state court adjudicated the merits of his claim, 
Rosario must prove that the state court either identi­
fied the federal standard for ineffective assistance but 
applied that standard in an objectively unreasonably 
way, or that the state applied a rule that contradicts 
the federal standard. Lockyer v. Andrade, 538 U.S. 
63, 73, 75-76 (2003); Williams v. Taylor, 529 U.S. 362, 
387-89 (2000). We review the district court’s denial of 
the writ de novo. Jones v. West, 555 F.3d 90, 95 (2d 
Cir. 2009).

Rosario argues that the state court ran afoul of 
federal law when it concluded that he had received 
effective representation. In Rosario’s view, coun­
sels’ failure to investigate Rosario’s alibi witnesses 
and documentary evidence was a violation of his



9a

constitutional right to the effective assistance of 
counsel, and any conclusion otherwise misapprehends 
clearly established law.

In Williams v. Taylor, the Supreme Court deter­
mined that Strickland v. Washington, the seminal 
case defining the contours of the right to effective 
assistance of counsel, qualified as “clearly established 
law” for purposes of AEDPA. 529 U.S. at 390-91. The 
Strickland test for ineffective assistance has two 
necessary components: the defendant must establish 
both that his attorney was ineffective and that the 
attorney’s errors resulted in prejudice to the defen­
dant. Id.; see also Strickland v. Washington, 466 U.S. 
668, 687 (1984). Counsel is ineffective when her 
efforts fall “ ‘below an objective standard of reasona­
bleness.’ ” Williams, 529 U.S. at 390-91 (quoting 
Strickland, 466 U.S. at 688). A defendant satisfies 
the prejudice prong by proving that “ ‘there is a 
reasonable probability that, but for counsel’s unpro­
fessional errors, the result of the proceeding would 
have been different. A reasonable probability is a 
probability sufficient to undermine confidence in the 
outcome.’ ” Id. at 391 (quoting Strickland, 466 U.S. at 
694).

When a federal court reviews a state court de­
cision under § 2254, “[t]he question is not whether 
a federal court believes the state court’s determina­
tion under the Strickland standard was incorrect 
but whether that determination was unreasonable 
-  a substantially higher threshold.” Knowles v. 
Mirzayance,___U .S.___ , 129 S. Ct. 1411, 1420 (2009)



10a

(internal quotation marks omitted). The Strickland 
standard itself is a “general standard,” meaning its 
application to a specific case requires “a substantial 
element of judgment” on the part of the state court. 
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); 
accord Knowles, 129 S.Ct. at 1420. Thus, state courts 
are granted “even more latitude to reasonably deter­
mine that a defendant has not satisfied that stan­
dard.” Knowles, 129 S.Ct. at 1420. In order to prevail, 
a petitioner must overcome that substantial defer­
ence and establish that the state court’s decision on 
ineffective assistance was contrary to, or an unrea­
sonable application of, Strickland.

To be “contrary to” clearly established law, a state 
court must reach a conclusion of law antithetical to a 
conclusion of law by the Supreme Court, or decide a 
case differently than the Supreme Court has when 
the two cases have “materially indistinguishable 
facts.” Williams, 529 U.S. at 412-13. The state court 
examined Rosario’s claims under New York’s constitu­
tional standard for ineffective assistance. New York’s 
constitution, like the U.S. Constitution, affords its 
citizens with the right to competent representation by 
an attorney. See U.S. Const, amend. VI; N.Y. Const, 
art. I, § 6; see also People v. Baldi, 54 N.Y.2d 137, 146 
(1981). However, as noted by the state court, New 
York’s test for ineffective assistance of counsel under 
the state constitution differs from the federal Strick­
land standard. The first prong of the New York test is 
the same as the federal test; a defendant must show 
that his attorney’s performance fell below an objective



11a

standard of reasonableness. People v. Turner, 5 
N.Y.3d 476, 480 (2005). The difference arises in the 
second prong of the Strickland test. Id. In New York, 
courts need not find that counsel’s inadequate efforts 
resulted in a reasonable probability that, but for 
counsel’s unprofessional errors, the result of the 
proceeding would have been different. Instead, the 
“question is whether the attorney’s conduct consti­
tuted egregious and prejudicial error such that defen­
dant did not receive a fair trial.” People v. Benevento, 
91 N.Y.2d 708, 713 (1998) (internal quotation marks 
omitted). Thus, under New York law the focus of the 
inquiry is ultimately whether the error affected the 
“fairness of the process as a whole.” Id. at 714. The 
efficacy of the attorney’s efforts is assessed by looking 
at the totality of the circumstances and the law at the 
time of the case and asking whether there was 
“meaningful representation.” Baldi, 54 N.Y.2d at 147.

The New York Court of Appeals clearly views the 
New York constitutional standard as more generous 
toward defendants than Strickland. Turner, 5 N.Y.3d 
at 480 (“Our ineffective assistance cases have departed 
from the second (‘but for’) prong of Strickland, adopt­
ing a rule somewhat more favorable to defendants.” 
(citing cases)). To meet the New York standard, a 
defendant need not demonstrate that the outcome of 
the case would have been different but for counsel’s 
errors; a defendant need only demonstrate that he 
was deprived of a fair trial overall. People u. Caban, 
5 N.Y.3d 143, 155-56 (2005). A single error by other­
wise competent counsel may meet this standard if



12a

that error compromised the integrity of the trial as a 
whole. Turner, 5 N.Y.3d at 480.

For our part, we have recognized that the New 
York “meaningful representation” standard is not con­
trary to the Strickland standard. Eze v. Senkowski, 
321 F.3d 110, 123-24 (2d Cir. 2003); Lindstadt v. 
Keane, 239 F.3d 191, 198 (2d Cir. 2001). However, 
some of our colleagues have cautioned that there may 
be applications of the New York standard that could 
be in tension with the prejudice standard in Strick­
land. Henry v. Poole, 409 F.3d 48, 70-71 (2d Cir. 
2005). The primary source of this consternation is a 
sentence from a New York Court of Appeals decision, 
Benevento, which notes that “whether defendant 
would have been acquitted of the charges but for 
counsel’s errors is relevant, but not dispositive under 
the State constitutional guarantee of effective assis­
tance of counsel.” 91 N.Y.2d at 714. Of course, under 
Strickland, if a defendant would have been acquitted 
but for counsel’s errors, that fact is both relevant and 
dispositive because it creates more than a reasonable 
probability of a different outcome and thus soundly 
passes the prejudice prong of the test. See Strickland, 
466 U.S. at 694.

The problem is that focusing solely on this sen­
tence leads one to ignore the context in which it was 
written. Benevento recognized that, like Strickland, 
“a claim of ineffective assistance of counsel will be 
sustained only when it is shown that counsel partook 
‘an inexplicably prejudicial course.’ ” Benevento, 91 
N.Y.2d at 713 (quoting People v. Zaborski, 59 N.Y.2d



13a

863, 865 (1983)). However, the New York Court of 
Appeals carefully noted that, prior to Strickland, New 
York had “developed a somewhat different test for 
ineffective assistance of counsel under article I, § 6 of 
the New York Constitution from that employed by the 
Supreme Court in applying the Sixth Amendment.” 
Id. (quoting People v. Claudio, 83 N.Y.2d 76, 79 
(1993)). Benevento explained that in New York “ ‘prej­
udice’ is examined more generally in the context of 
whether defendant received meaningful representa­
tion.” Id. Because the concept of prejudice in New 
York’s ineffective assistance of counsel jurisprudence 
focuses on the quality of representation provided and 
not simply the “but for” causation chain, New York 
has “refused to apply the harmless error doctrine in 
cases involving substantiated claims of ineffective 
assistance.” Id. at 714 (citing cases). In New York, 
even in the absence of a showing that but for counsel’s 
errors the outcome would be different, a defendant 
may still have an ineffective assistance claim under 
New York’s constitution. Even if the errors are harm­
less in the sense that the outcome would remain the 
same, a defendant may still meet the New York 
prejudice standard by demonstrating that the pro­
ceedings were fundamentally unfair. See People v. 
Stultz, 2 N.Y.3d 277, 283-84 (2004). This is not a 
novel view -  New York state courts have repeatedly 
asserted that the New York standard is, in practice 
and in intent, more generous to defendants than the 
federal standard. See, e.g., People v. Ozuna, 7 N.Y.3d 
913, 915 (2006); Turner, 5 N.Y.3d at 480 (collecting



14a

cases). Federal courts faced with the New York 
standard should view it as such.

The concern this Court expressed in dicta in 
Henry v. Poole about the New York state standard 
was misplaced. The Henry panel wrote, “we find it 
difficult to view so much of the New York rule as 
holds that ‘whether defendant would have been ac­
quitted o f the charges but for counsel’s errors is . . . not 
dispositive,’ as not ‘contrary to’ the prejudice standard 
established by Strickland.” 409 F.3d at 71 (internal 
citation omitted). However, it is hard to envision a 
scenario where an error that meets the prejudice 
prong of Strickland would not also affect the funda­
mental fairness of the proceeding. The very opinion 
from which the troublesome phrase was drawn — 
Benevento -  affirmatively stated that even a “harm­
less error” could undermine the fairness of the pro­
cess in such a way that violates the state’s 
constitutional guarantee of effective assistance. See 
Benevento, 91 N.Y.2d at 714. What case, then, could 
present the converse, an error so egregious that it 
most likely influenced the outcome of the trial, but 
did not cripple the fundamental fairness of the pro­
ceedings? We can think of none. Fundamental fair­
ness analysis by its nature must always encompass 
prejudice.

The New York standard is not without its prob­
lems. In defining prejudice to include “the context of 
whether defendant received meaningful representa­
tion,” Benevento, 91 N.Y.2d at 713, New York has, to 
some degree, combined the two prongs of Strickland.



15a

Prejudice to the defendant, meaning a reasonable 
possibility of a different outcome, is but one factor of 
determining if the defendant had meaningful repre­
sentation. New York courts look at the effect of the 
attorney’s shortcomings as part of the equation in 
deciding if the defendant received the benefit of 
competent counsel. This approach, and the language 
of Benevento, creates a danger that some courts might 
misunderstand the New York standard and look past 
a prejudicial error as long as counsel conducted 
himself in a way that bespoke of general competency 
throughout the trial. That would produce an absurd 
result inconsistent with New York constitutional 
jurisprudence and the mandates of Strickland. 
Properly applied, however, this standard is not con­
trary to Strickland and, in the case before us, the 
court properly applied the standard.

The trial court’s decision3 addressing the ineffec­
tive assistance of counsel claim did recite the trouble­
some phrase from Benevento, and added a footnote 
that read: “The federal standard for allegations of 
ineffective assistance of counsel, which was set forth 
in Strickland v. Washington, requires a showing that 
the attorney’s performance was deficient and that, 
but for the attorneys[’] errors, the result of the pro­
ceeding would have been different, was expressly

Because the state court appeals did not address the 
ineffective assistance of counsel claim, we look to the trial 
court’s analysis of the issue. See Ylst v. Nunnemaker, 501 U.S. 
797, 803 (1991).



16a

rejected in this case.” (internal quotation marks and 
citation omitted). Rosario argues that this alone is 
enough to establish his claim under Federal law. But 
as noted above, New York’s rejection of Strickland 
was in the context of recognizing a state constitutional 
right that is more protective of a defendant’s right to 
an effective attorney, and not because Strickland is 
too generous.

As the Henry panel recognized, this Court has 
repeatedly held that application of the New York 
state standard is not contrary to Strickland. See, e.g., 
Eze, 321 F.3d at 123-24. And, as the Henry panel also 
recognized, “in the absence of a contrary decision by 
this Court en banc, or an intervening Supreme Court 
decision, we are bound to follow the precedents . . . 
that the N.Y. Court of Appeals standard is not ‘con­
trary to’ Strickland.” Henry, 409 F.3d at 70. We em­
phasize again that the New York state standard for 
ineffective assistance of counsel is not contrary to 
Strickland.

The only avenue of reprieve available to Rosario 
then is to establish that the state court unreasonably 
applied Strickland. A state court “unreasonably 
applies” clearly established law when it identifies the 
correct legal principle from Supreme Court jurispru­
dence, but unreasonably applies the principle to the 
case before it. Williams, 529 U.S. at 412-13.

In order to prevail, Rosario must first satisfy the 
prongs of Strickland on de novo review of the merits. 
See Henry, 409 F.3d at 67. The magistrate judge and



17a

the district court concluded that Rosario had done so. 
We see no need to quibble with those conclusions 
because, like the magistrate judge and the district 
court judge, we agree that the New York court’s 
application of Strickland -  albeit in the terms of New 
York cases — was not an unreasonable application of 
the federal standard.

For us to find that the state court unreasonably 
applied Strickland, we must uncover an “increment of 
incorrectness beyond error.” Francis S. v. Stone, 221 
F.3d 100, 111 (2d Cir. 2000). The increment need not 
be great, but simply disagreeing with the outcome is 
insufficient. Id.; see also Williams, 529 U.S. at 410. 
This is so even if, as here, we conclude both prongs of 
Strickland have been met. “[A] state prisoner seeking 
a federal writ of habeas corpus on the ground that he 
was denied effective assistance of counsel must show 
more than simply that he meets the Strickland stan­
dard. . . . [T]he state court’s decision rejecting his 
claim is to be reviewed under a more deferential 
standard than simply whether that decision was 
correct.” Henry, 409 F.3d at 67.

As noted above, the state court conducted an 
extensive hearing in response to Rosario’s motion to 
vacate his conviction under New York Criminal 
Procedure Law § 440.10 due to ineffective assistance 
of counsel. The hearing lasted over a month. After the 
hearing, Justice Davidowitz issued a lengthy deci­
sion, reviewing the evidence presented and detailing 
his conclusions on Rosario’s claims. While we may 
disagree with Justice Davidowitz’s findings (and



18a

indeed our dissenting colleague does), we cannot say 
that he unreasonably applied federal law.

As the district court stated: “[tjhough not de­
livered in Strickland terminology, the state court 
opinion ruled that 1.) Rosario was effectively repre­
sented in his alibi defense, and 2.) that his represen­
tation did not undermine confidence in the jury’s 
verdict.” Rosario, 582 F. Supp. 2d at 553. Examining 
both the efforts of counsel and the alibi witnesses 
presented, Justice Davidowitz concluded: “By any 
standard, Ms. Hartsfield and Mr. Kaiser represented 
defendant in a thoroughly professional, competent, 
and dedicated fashion and not in accord with the 
issues of ineffectiveness. . . . [T]he errors or omissions 
suggested by the defendant do not alter this finding 
or rise to that level.” (emphasis added). Justice 
Davidowitz noted that “an investigation was con­
ducted . . . and, most importantly, a credible alibi 
defense was presented to the jury.” He found that the 
two witnesses presented at trial were Rosario’s best 
alibi witnesses. Justice Davidowitz labeled Kaiser’s 
decision not to present the police reports detailing 
Collazo’s fight a “perfectly reasonable and appropri­
ate” strategy. To put it in terms of Strickland, Justice 
Davidowitz did not find that the performance of 
counsel was objectively unreasonable.

Justice Davidowitz then examined in great detail 
the testimony of the alibi witnesses presented at the 
hearing. The court noted that the two alibi witnesses 
that were presented at trial “had the best reason for 
remembering why defendant was present in Florida



19a

on June 19[,] 1996 -  the birth of their son -  an event 
that was more relevant for them than the events 
relied upon by the other witnesses.” He expressed 
skepticism as to the probative value of the witnesses 
presented at the hearing, calling the evidence “in 
some cases questionable and in others [raising] issues 
which could have created questions for a deliberating 
jury. For example, two of the witnesses -  Lisette 
Rivero[] and Denise Hernandez -  could not say 
where the defendant was on June 19 and 20.” The 
judge “studied closely” the alibi witnesses presented 
at the hearing, and concluded they were “for the most 
part, questionable and certainly not as persuasive as 
the two witnesses who did testify, and were rejected 
by the jury” and the testimony they would have 
provided was “largely” cumulative. In spite of the 
failure to call the alibi witnesses, Justice Davidowitz 
determined “this jury verdict was unimpeached and 
amply supported by the evidence.” (internal quotation 
marks omitted and emphasis added). Translated into 
the language of Strickland, Justice Davidowitz con­
cluded that there was not a reasonable probability 
that the outcome of the trial would be different but 
for counsel’s errors.

Justice Davidowitz conducted a thorough hear­
ing, assessing the credibility of the potential witnesses 
first-hand. He concluded that the two witnesses 
called at trial were the best witnesses to represent 
Rosario’s alibi defense, and that the other witnesses 
were “questionable and certainly not as persuasive as 
the two witnesses who did testify, and were rejected



20a

by the jury.” He considered the prejudicial effect of 
the errors, and concluded that the outcome of the 
trial would not have been different but for those 
errors -  the guilty verdict, in his words, remained 
“unimpeached.” He adhered to the New York state 
standard and found counsel to have been effective. 
Whether our own cold reading of the record would 
lead us to this conclusion is of no moment; we must 
presume the state court’s findings of fact are correct 
and can only be rebutted by clear and convincing 
evidence otherwise. Lynn v. Bliden, 443 F.3d 238, 246 
(2d Cir. 2006) (citing 28 U.S.C. § 2254(e)).

Justice Davidowitz’s analysis need not employ 
the language of a federal court’s de novo review 
in order to pass AEDPA muster. See Coleman v. 
Thompson, 501 U.S. 722, 739 (1991). While he did not 
explicitly review the evidence under the Strickland 
standard, the import was the same. Conflating the 
two prongs of Strickland does not violate AEDPA -  
different is not per se unreasonable. Here, Justice 
Davidowitz did not find that counsel’s performance 
was objectively unreasonable, nor did he find that the 
fundamental fairness of the trial was harmed by 
counsel’s errors. On this record, we cannot say that 
the state court unreasonably applied the tenets of 
Strickland. Therefore, consistent with the standards 
of AEDPA, we agree with the district court that the 
writ must be denied.

We have reviewed Rosario’s additional argu­
ments and find them to be without merit.



21a

Conclusion

The district court’s judgment of October 23, 2008, 
denying the petition for the writ of habeas corpus is 
hereby AFFIRMED.

Straub, Circuit Judge, dissenting in part, concurring 
in part:

The principal issue in this appeal is whether the 
state court ruling on Rosario’s motion to vacate his 
conviction pursuant to New York Criminal Procedure 
Law § 440.10 was objectively unreasonable in holding 
that Rosario received effective assistance of counsel 
in accordance with the Sixth Amendment of the 
United States Constitution under Strickland v. 
Washington, 466 U.S. 668 (1984). As I believe it was, I 
must respectfully dissent. Rosario raises two addi­
tional claims on appeal. Because I would conditionally 
grant Rosario’s petition on the basis of ineffective 
assistance of counsel, I believe it unnecessary to 
reach his claim under Batson u. Kentucky, 476 U.S. 79 
(1986). I concur only in the majority’s rejection of 
Rosario’s actual innocence claim.

This appeal presents an extraordinarily troubling 
set of circumstances. During the pendency of his 
prosecution, Rosario consistently maintained, both to 
the police and to his criminal defense attorneys, that 
he was in Florida on the day of the Bronx murder and 
on multiple occasions provided a list of up to thirteen 
alibi witnesses to corroborate this claim. Rosario’s



22a

defense attorneys nevertheless failed to investigate 
his alibi defense adequately and did not contact many 
of these potential witnesses. They offer no strategic 
reason for not doing so and, indeed, concede that such 
an investigation was essential to Rosario’s defense. 
Their explanation for this failure is that they mistak­
enly believed that the state trial court had denied 
Rosario’s application for fees to cover the investigatory 
expenses, when in fact the court had clearly granted 
the application. Such conduct plainly falls below 
acceptable professional standards, satisfying Strick­
land’s performance prong. Strickland, 466 U.S. at 
687.

As a result of this colossal failure, Rosario’s trial 
counsel presented a relatively weak alibi defense, 
consisting of only two alibi witnesses who were sub­
ject to impeachment as interested witnesses because 
they were close friends with Rosario. It is now clear 
that had Rosario’s defense attorneys followed through 
in investigating his alibi defense, they would have 
had the opportunity to call at least seven additional 
alibi witnesses at trial. These witnesses would have 
provided corroboration and supplied distinct facts 
relating to Rosario’s presence in Florida on and 
around the day of the murder, adding further context 
and credibility to his alibi defense; moreover, a num­
ber of these additional witnesses would not have been 
as vulnerable to impeachment as interested witnesses 
as were the two trial witnesses because they are 
not as close with Rosario. Moreover, the prejudice in 
this case is worsened because the only evidence of



23a

Rosario’s guilt was the testimony of two stranger 
eyewitnesses. There is no question, in my opinion, 
that had the additional alibi witnesses who were 
presented in connection with Rosario’s post-conviction 
motion testified at trial, there is a reasonable proba­
bility that the jury’s verdict would have been differ­
ent, satisfying the prejudice prong of the Strickland 
analysis. Id.

While the majority appears to agree with this 
much of the analysis, our opinions diverge where I 
further conclude that the state court’s holding to the 
contrary was not merely error, but an unreasonable 
application of Strickland. I come to this conclusion, as 
I must, because there exists too much alibi evidence 
that was not presented to the jury, and too little 
evidence of guilt, to now have any confidence in the 
jury’s verdict. In sum, I would conditionally grant the 
petition because it was objectively unreasonable both 
to sanction counsel’s failure to investigate Rosario’s 
alibi defense as reasonable and to find no reasonable 
probability that the verdict would have been different 
if the jury had heard the significant alibi evidence 
that Rosario’s defense attorneys neither uncovered 
nor presented. I.

I. Ineffective Assistance of Counsel

The majority does not dispute that Rosario 
received constitutionally ineffective assistance of 
counsel under Strickland, but views the state court’s 
decision to the contrary as within the bounds of



24a

permissible error. Engaging in the Strickland analy­
sis is helpful to underscore why I must disagree with 
the majority’s conclusion that the state court did not 
unreasonably apply the precedent.

Under Strickland, to establish ineffective assis­
tance of counsel, Rosario “must (1) demonstrate that 
his counsel’s performance fell below an objective 
standard of reasonableness in light of prevailing 
professional norms; and (2) affirmatively prove preju­
dice arising from counsel’s allegedly deficient repre­
sentation.” Carrion v. Smith, 549 F.3d 583, 588 (2d 
Cir. 2008) (internal quotation marks omitted). “To 
satisfy the first prong — the performance prong -  the 
record must demonstrate that ‘counsel made errors so 
serious that counsel was not functioning as the 
“counsel” guaranteed the defendant by the Sixth 
Amendment.’ ” Wilson v. Mazzuca, 570 F.3d 490, 502 
(2d Cir 2009) (quoting Strickland, 466 U.S. at 687). 
“[Strategic choices made after thorough investigation 
of law and facts relevant to plausible options are 
virtually unchallengeable,” Strickland, 466 U.S. at 
690, and even “strategic choices made after less than 
complete investigation do not amount to ineffective 
assistance — so long as the known facts made it 
reasonable to believe that further investigation was 
unnecessary,” Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 
2005) (citing Strickland, 466 U.S. at 690-91), cert, 
denied, 547 U.S. 1040 (2006). By contrast, “omissions 
[that] cannot be explained convincingly as resulting 
from a sound trial strategy, but instead arose from 
oversight, carelessness, ineptitude, or laziness,” may



25a

fall below the constitutional minimum standard of 
effectiveness. Wilson, 570 F.3d at 502 (alteration in 
original) (quoting Eze v. Senkowski, 321 F.3d 110, 112 
(2d Cir. 2003)). To satisfy the second prong -  the 
prejudice prong -  “defendant must show that there is 
a reasonable probability that, but for counsel’s unpro­
fessional errors, the result of the proceeding would 
have been different. A reasonable probability is a 
probability sufficient to undermine confidence in the 
outcome.” Strickland, 466 U.S. at 694.

A. Performance Prong

Defense counsel has a “duty to make reasonable 
investigations or to make a reasonable decision that 
makes particular investigations unnecessary.” Wig­
gins v. Smith, 539 U.S. 510, 521 (2003) (quoting 
Strickland, 466 U.S. at 690). Rosario’s pre-trial and 
trial counsel did neither. From his arrest to the 
present, Rosario has consistently maintained that he 
was in Florida on the day of the murder. At every 
juncture of this case, he has disclosed the substance 
of his alibi defense and the names of the individuals 
who could corroborate it, including in his post-arrest 
statement on the day he voluntarily surrendered to 
the police and to both of his defense counsel there­
after. Nevertheless, his attorneys abdicated their 
duty to investigate a majority of these individuals 
because of their mistaken belief that the state trial 
court had denied the application for fees to cover the 
expenses of such an investigation. This clearly satis­
fies the deficient representation prong of Strickland.



26a

To be more specific, the record is undisputed that 
Rosario’s first counsel, Joyce Hartsfield, retained 
investigator Jessie Franklin, and, after Franklin’s 
unsuccessful attempt to contact several potential alibi 
witnesses by telephone, concluded that an on-the- 
ground investigation in Florida was necessary. 
Accordingly, Hartsfield applied to the trial court for 
fees to cover the cost of sending Franklin to Florida. 
The court ultimately granted the application, but 
Hartsfield failed to disclose this fact to Franklin. 
Franklin assumed the court had denied the applica­
tion because Hartsfield never informed her otherwise 
and never ordered her to conduct the investigation. 
Steven Kaiser, Rosario’s second counsel, similarly 
labored under the erroneous impression that the 
court had denied the application and neglected to 
make any further inquiry into the matter. Whatever 
their reasons for harboring this mistaken belief, an 
on-the-ground investigation in Florida was never 
conducted. The direct and proximate result of this 
mistake was that Rosario’s defense team never con­
tacted most of Rosario’s alibi witnesses.

To be clear, neither Hartsfield nor Kaiser claim 
that the failure to conduct this investigation was 
strategic; they admit it was a mistake. Hartsfield 
testified that in this case it was “critical” for the 
investigator to be able to meet the witnesses “in 
person and have a face-to-face conversation,” and that 
had Hartsfield realized that the application for fees 
had been granted she would have asked Franklin to 
go to Florida. Hartsfield unequivocally confirmed that



27a

her failure to interview additional witnesses was not 
strategic. Kaiser likewise testified that he relied upon 
the erroneous belief that the fee motion had been 
denied in limiting his investigation of Rosario’s alibi 
to evidence that could be gathered from New York, 
and repeatedly testified to the effect that he would 
have “loved to” call additional alibi witnesses if only 
they had been available to him.

Under these circumstances, there is simply no 
question that this mistake on the part of Rosario’s 
defense attorneys -  and their resulting failure to 
investigate Rosario’s alibi properly -  was constitu­
tionally deficient under the Sixth Amendment. See, 
e.g., Williams v. Taylor, 529 U.S. 362, 396 (2000) 
(concluding that counsel’s failure to uncover and 
present voluminous mitigating evidence at sentencing 
could not be justified as a tactical decision to focus on 
the defendant’s voluntary confessions because counsel 
had not “fulfilled] their obligation to conduct a 
thorough investigation of the defendant’s back­
ground”); Pavel v. Hollins, 261 F.3d 210, 220 (2d Cir. 
2001) (noting that “an attorney’s failure to present 
available exculpatory evidence is ordinarily deficient, 
unless some cogent tactical or other consideration 
justified it”); Maddox v. Lord, 818 F.2d 1058, 1061-62 
(2d Cir. 1987) (concluding that counsel would be 
constitutionally deficient if he “was aware of -  but 
failed” for non-strategic reasons “to interview -  a 
potential witness . . . who was prepared to testify . . . 
that he had diagnosed [petitioner] as being extremely 
emotionally disturbed prior to, and during, the



28a

commission of the crime”); Garcia v. Portuondo, 459 
F. Supp. 2d 267, 287-88 (S.D.N.Y. 2006) (“[TJhere is 
no reasonable trial strategy that would have excluded 
at least conducting interviews of the alibi witnesses 
to determine whether they could provide exculpatory 
evidence.”)-4

B. Prejudice Prong

I also conclude that Rosario has satisfied the 
prejudice prong of Strickland. Because of defense 
counsel’s failure to properly investigate Rosario’s alibi 
defense, the only two alibi witnesses presented at 
trial were John Torres and Jenine Seda, who both

4 Kaiser’s deficiency extended beyond his failure to investi­
gate. In his limited investigation, Kaiser was able to contact a 
few individuals in Florida beyond the two witnesses he actually 
presented at trial. Specifically, he spoke with Fernando Torres -  
who, it will be seen, could have been an important witness -  
perhaps Fernando’s wife Margarita, and others whose names 
Kaiser could not recall. Kasier would have liked to call some of 
these witnesses; the limited recollection of the conversations he 
had, however, was that those he spoke with could not afford to 
come to New York and may have been reluctant to testify at 
least in part for financial reasons. Kaiser was unaware of a New 
York state statute providing reimbursement of certain expenses 
of out-of-state witnesses and, in any event, operating under the 
belief that the state court had denied the motion for fees to send 
Franklin to Florida, assumed that the court would have likewise 
declined to reimburse the witnesses any expenses. Thus, 
Kaiser’s decision not to pursue additional witnesses was also 
based on an erroneous belief rather than on any “plausible 
strategic calculus or an adequate pretrial investigation” of the 
facts and law. Pavel, 261 F.3d at 222.



29a

testified that Rosario stayed with them in Deltona, 
Florida from approximately the end of April or begin­
ning of May until about June 20, 1996. Specifically, 
they testified that Rosario was in Florida on June 19, 
1996, the day of the murder, and that they remem­
bered this because it was the day before the birth of 
their son. John0 further explained that on June 19, 
his car broke down and he spent the day with Rosario 
looking for car parts before they returned to his 
apartment together. Seda also testified that Rosario 
was at her apartment to see the baby on June 21, 
1996, when she returned from the hospital. Rosario 
took the stand on his own behalf and testified that he 
was in Florida on the day of the murder and was 
staying with John and Seda for most of June 1996.

The prosecution successfully discredited the alibi 
defense presented at trial by convincing the jury that 
John, Seda and Rosario were lying. The first words 
from the prosecution during its summation were: 
“You [the jury] have to determine which witnesses 
were credible, which witnesses were believable, which 
witnesses had an interest in the outcome of this 
case.” The prosecution went on to argue, Rosario’s 
“saying he was in Florida. Look at the testimony to 
determine, can you rely on it? Is it believable? Is it 
credible?” Discrediting Seda and John, the prosecu­
tion argued:

Because a number of relevant witnesses share the sur­
names “Torres” and “Ruiz,” I shall refer to those individuals by 
their first names.



30a

First the two witnesses we heard. Jenine 
Seda and John Torres, the defendant’s 
friends. I would suggest to you, ladies and 
gentlemen, that those witnesses are inter­
ested witnesses, interested because they 
have an interest in the outcome of the case. 
They don’t want to see their friend go to jail. 
They don’t want to see their friend in trouble.

With respect to Rosario’s testimony, the prosecution 
noted at the outset that “the Judge will instruct you 
he is an interested witness.” The prosecution also 
emphasized that Rosario lied about staying with a 
woman in Florida during March and April of 1996 
named Shannon Beane, whom he claimed to have 
been with every day, when in fact he had been incar­
cerated between March 13 and April 12. The prosecu­
tion argued:

Ladies and gentlemen, he took the 
stand. He put his hand on the Bible. He 
swore to tell the truth, and he told you I was 
with Shannon [B]ean[e]. I was with her daily, 
every day, and we know, ladies and gentle­
men, from Captain Bolton that’s not true.

Ladies and gentlemen, I would suggest 
to you he doesn’t want you to know the truth 
about June 19th because to know the truth is 
to know that he was on White Plains Road, 
to know that he was on Turnbull Avenue, and 
to know that he was pumping a bullet [into] 
the head of George Collazo, and ending his 
life.



31a

Ask yourself to what extent he would go 
to preventing you from knowing the truth. If 
he didn’t want you to know where he was in 
March and April of 1996, a time period which 
is insignificant since it has nothing to do 
with the commission of this crime, what 
would he do for the time period that really 
matters?

*  *  *

. . . .  Ladies and gentlemen, use your com­
mon sense. Keep in mind that [Rosario] has 
an interest in this case.

The prosecution thus presented the jury with a 
choice: it could choose to believe two, disinterested 
eyewitnesses, or it could believe Rosario and his two 
good friends. It was a credibility battle. It is not 
shocking, therefore, that the prosecution secured a 
conviction. I conclude, however, that if the jury had 
been presented with the additional alibi evidence 
unearthed only by Rosario’s post-conviction team, 
there is a reasonable probability that the outcome at 
trial would have been different.

Rather than the slim alibi defense actually 
presented at trial, the jury would have been pre­
sented with a much stronger and more credible 
account of Rosario’s presence in Florida on the day of 
the murder and in the immediately surrounding pe­
riod. Instead of disbelieving two alibi witnesses who 
were good friends with Rosario and Rosario himself, 
the jury would have had to discredit at least seven 
additional witnesses, who would have corroborated



32a

Rosario’s alibi, provided further context to his defense 
and testified to additional facts that had not been 
elicited at trial. Moreover, many of the additional 
witnesses are less interested in the outcome of the 
trial than were the trial witnesses and thus would 
have been less vulnerable to impeachment as inter­
ested witnesses.

The following alibi evidence was presented in 
connection with Rosario’s post-conviction motion. 
First, Chenoa Ruiz, neighbor of John and Seda and 
wife of John’s brother Robert Torres, testified that she 
saw Rosario about five times a week when he was 
living with John and Seda in June 1996, but that he 
moved out of their house and in with a friend named 
Ray who lived nearby when the baby was born. 
Chenoa testified that on the night of June 18, 1996 
(the night prior to the murder), John, Seda, Robert 
and Rosario were at her and Robert’s apartment 
when Seda began to have contractions. Chenoa and 
another woman took Seda to the hospital without 
John, who chose instead to remain with Robert and 
Rosario. Seda was not kept in the hospital that night, 
but was told to return the next day for a scheduled 
appointment. The next morning (June 19, the day of 
the murder), Chenoa saw Rosario when she arrived at 
John and Seda’s apartment to take Seda to the doctor 
and saw him again when she and Seda returned 
home several hours later. Chenoa testified that she 
remembers this day in particular because she was 
annoyed that John was “hanging out” with Rosario 
instead of tending to his pregnant girlfriend. Chenoa



33a

would have provided less interested testimony than 
John and Seda because she did not consider Rosario a 
friend.

Second, Fernando Torres, John’s father, testified 
that Rosario lived with John and Seda around the 
time that his grandson was born on June 20, 1996. 
Fernando testified that he was with Rosario in Florida 
on June 19, 1996, the day of the murder, because 
John’s car broke down and Fernando accompanied 
John and Rosario to purchase car parts. Fernando 
also saw Rosario in Florida the following morning: 
early on June 20, Fernando went to his son’s house 
and learned from Rosario that John and Seda were at 
the hospital. Finally, Rosario was again present at 
John and Seda’s apartment when Fernando met his 
grandson for the first time on June 21, the day Seda 
returned from the hospital. Fernando invited Rosario 
to church that day. In addition to providing additional 
facts not supplied by either John or Seda, a jury may 
have found Fernando more credible because he was 
not a friend of Rosario and thus undoubtedly a less 
interested witness. Additionally, Fernando is a gener­
ation older than Rosario, John and Seda, who were 
all in their twenties, which may have further bol­
stered his credibility over the trial witnesses. See, 
e.g., United States v. Liporace, 133 F.3d 541, 545 (7th 
Cir. 1998) (approving instruction to jury that it may 
consider a witness’s age in assessing that witness’s 
credibility); cf. Washington v. Schriver, 255 F.3d 45,



34a

59-60 & n.10 (2d Cir. 2001) (implicitly approving 
same).6

A third witness -  Michael Serrano, a corrections 
officer -  testified that in June of 1996, he saw Rosario 
two or three times a week in the apartment complex 
where John, Seda, Robert and Chenoa lived, includ­
ing in the days prior to the birth of John and Seda’s 
child. Though he did not know Rosario’s whereabouts 
on the day of the murder, Serrano testified that on 
the night that the baby was born (i.e., the day after 
the murder), Serrano and several other people, in­
cluding Rosario, held an impromptu celebration in 
the parking lot of the apartment complex to congratu­
late John when he came home from the hospital.7 As 
with Ruiz, Serrano did not consider himself to be good 
friends with Rosario.

Margarita Torres, Fernando’s wife and John’s mother, 
filed an affidavit in connection with the post-conviction hearing 
stating that she saw Rosario in Florida on June 19, 1996, the 
day of the murder, and again when Seda came home from the 
hospital with her grandson. Along with Fernando, Margarita 
invited Rosario to church that day. Though she did not testify at 
the post-conviction hearing, she indicated that she would be 
“more than willing” to testify on Rosario’s behalf. As with 
Fernando, had Margarita testified, a jury may have viewed her 
testimony as more credible than either John’s or Seda’s because 
she was not a friend of Rosario and is a generation older than 
they.

According to Serrano, John alone came home briefly to get 
a change of clothes before returning to the hospital that night. 
Accordingly, his testimony does not contradict Fernando’s 
account that Seda and the baby remained in the hospital until 
the following day.



35a

Fourth, Denise Hernandez, Rosario’s ex-girlfriend, 
testified that she saw Rosario in Florida around 
the time of the murder because they were dating 
throughout June 1996, and recalled in particular a 
big argument at some point in the middle to end of 
that month. Hernandez explained that one day, she 
and her friend were at her friend’s house getting 
ready to go out to a movie when Rosario took her car, 
without her permission, on a “joyride.” Hernandez 
was particularly upset because this incident occurred 
a few days before her sister’s birthday, which is on 
June 26, and her sister’s birthday present was in the 
car. As a result of this and other issues in their rela­
tionship, Hernandez broke up with Rosario at some 
point between her sister’s birthday and when Rosario 
returned to New York. It is true that Hernandez has 
maintained a close relationship with Rosario, even 
visiting him in prison on several occasions, and thus 
the prosecution presumably would have attacked her 
as an interested witness. Nevertheless, her testimony 
would have provided additional and distinct facts 
relating to Rosario’s whereabouts around the date of 
the murder and would have provided further context 
to his alibi defense.

Furthermore, a fifth witness, Hernandez’s friend 
Lyssette Rivera, testified that she was present when 
Rosario took Hernandez’s car on the joyride and 
recalled the ensuing argument between Hernandez 
and Rosario and its proximity to Hernandez’s sister’s 
birthday (recalling that the argument occurred 
between five days and a week prior to the sister’s



36a

birthday). Thus, to the extent that Hernandez would 
have been subject to impeachment in light of her 
relationship with Rosario, defense counsel could have 
corroborated her testimony with that of Rivera, who -  
though she also had communicated with Rosario 
since his incarceration -  did not have as close a 
relationship with him.

Sixth, Ricardo Ruiz, the brother of Chenoa, 
testified that he saw Rosario at John and Seda’s 
apartment during the month of June 1996 “[a]ll the 
time,” including before and after their baby was born. 
In particular, he testified that Rosario was in Florida 
“[a]t the time that [Seda] gave birth to [the baby].” He 
also testified that after Rosario moved out of John 
and Seda’s apartment, Rosario moved in with a friend 
named Ray, who lived across the street from John and 
Seda.

The seventh witness -  Minerva Godoy, Rosario’s 
ex-fiancee -  testified that Rosario left New York for 
Florida in May 1996, to relocate and find a job, and 
she did not see him again until the morning of July 1, 
1996, when he claims to have returned to New York. 
Godoy testified that she was in regular contact with 
Rosario while he was in Florida, calling him at Fer­
nando’s Florida telephone number and once wiring 
him money in Florida via Western Union. In particu­
lar, she testified that Rosario called her from Florida



37a

the day after Seda gave birth and told her that he 
was going to go see the baby.8

Because the prosecution’s case hinged so much on 
discrediting Rosario’s alibi defense, these additional 
witnesses could have made all the difference in the 
world. Godoy could have provided the necessary 
context by testifying about Rosario’s departure from 
New York to Florida in May 1996, essentially serving 
as the first chapter of his alibi defense, and then 
about their meeting on July 1, 1996, providing the 
final chapter immediately prior to his surrender to 
the police. All of the other witnesses discussed above 
would have filled in the middle by testifying that they 
saw Rosario in their Florida community throughout 
June of 1996. They would have provided specific facts 
regarding where he lived and what he was doing at 
that time. Several witnesses could have corroborated 
each other’s testimony that Rosario was in Florida on 
the exact day of the murder and in the immediately 
surrounding days. Chenoa would have testified that 
she saw Rosario both the night prior to the murder, 
when she took Seda to the hospital, and twice 
throughout the day of the murder, both before and 
after Seda’s doctor’s appointment. John’s father 
Fernando would have placed Rosario in Florida on 
three consecutive days beginning with the day of the

Another potential alibi witness -  Jeremy David Guzman -  
filed a written statement in connection with the post-conviction 
hearing stating that he had spent “hours” with Rosario in 
Florida on June 19, 1996.



38a

murder and would have corroborated John’s testimony 
that Rosario was with him looking for car parts on 
the nineteenth. From Chenoa and Fernando alone, 
the jury would have been provided additional con­
crete facts that Rosario was in Florida the night prior 
to, at various points the day of, and the morning 
following the murder -  indisputably critical data 
points in establishing that Rosario was in Florida, 
and not over 1000 miles away in New York, when the 
victim was murdered.

Additionally, Serrano would have testified that 
he was with Rosario in the parking lot of John and 
Seda’s apartment complex on the night after the mur­
der; Hernandez and Rivera would have provided con­
sistent testimony about the fight between Hernandez 
and Rosario around the date of the murder; and 
Ricardo could have further corroborated Rosario’s 
general presence in Florida throughout June.

This additional evidence that the jury never 
heard would have provided the necessary context and 
corroboration for Rosario’s alibi defense. Moreover, as 
discussed, many of these witnesses were not vulnera­
ble to impeachment as interested witnesses because 
they were not close friends with Rosario.9

9 Nor would have impeachment for criminal history been an 
issue. Notably, Ricardo was the only witness at Rosario’s post­
conviction hearing with any criminal record, consisting solely of 
misdemeanor convictions.



39a

I conclude that this evidence, taken together, 
clearly establishes a reasonable probability that the 
outcome of the trial would have been different had 
defense counsel investigated and presented this addi­
tional alibi evidence, satisfying Strickland’s prejudice 
prong. “Overall,” as Rosario argues, “if presented with 
the additional evidence at trial, a jury must disregard 
nine witnesses, as opposed to two, as mistaken or 
lying about seeing Rosario in Florida on and about 
June 19, 1996, before convicting him of the Bronx 
murder.” Brief for Rosario at 34. See Stewart v. 
Wolfenbarger, 468 F.3d 338, 359 (6th Cir. 2006) (find­
ing prejudice when defense counsel failed to call two 
additional alibi witnesses to corroborate the one alibi 
witness called at trial who was impeached because of 
his close association with the defendant); Washington 
v. Smith, 219 F.3d 620, 634 (7th Cir. 2000) (finding 
prejudice when defense counsel failed to call three 
additional alibi witnesses to corroborate the one alibi 
witness at trial who had knowledge of the defendant’s 
whereabouts during the robbery, particularly when 
none of the additional witnesses, unlike the trial 
witness, had a criminal record); Montgomery v. Pe­
tersen, 846 F.2d 407, 415 (7th Cir. 1988) (finding 
prejudice in failure to call additional, disinterested 
alibi witness, noting that “the jury might well have 
viewed the otherwise impeachable testimony of the 
twelve witnesses who were presented at the . . . trial 
in a different light had the jury also heard the testi­
mony of this disinterested witness”).



40a

Further highlighting the prejudicial effect of 
defense counsel’s error in this case is the paucity of 
the prosecution’s case, which consisted of only two 
stranger eyewitnesses. We have consistently acknowl­
edged that this sort of evidence is “proverbially 
untrustworthy.” Kampshoff v. Smith, 698 F.2d 581, 
585 (2d Cir. 1983); see also Gersten v. Senkowski, 426 
F.3d 588, 613 (2d Cir. 2005) (characterizing direct 
evidence consisting only of eyewitness testimony as 
“underwhelming”), cert, denied sub nom., Artus v. 
Gersten, 547 U.S. 1191 (2006); Lyons v. Johnson, 99 
F.3d 499, 504 (2d Cir. 1996) (“[T]his court has noted 
on more than one occasion that eyewitness testimony 
is often highly inaccurate.”). Indeed, each year thou­
sands of defendants in the United States are con­
victed for crimes that they did not commit, and many 
experts estimate that eyewitness error plays a role 
in half or more of all wrongful felony convictions. 
Richard A. Wise, Clifford S. Fishman & Martin A. 
Safer, How to Analyze the Accuracy o f Eyewitness 
Testimony in a Criminal Case, 42 Co n n . L. Rev . 435, 
440 & n.12 (2009) (citing study showing that eye­
witness error accounts for nearly sixty percent of all 
wrongful convictions).

In this case, there are reasons to be concerned 
with the two eyewitnesses’ accounts: the porter, 
Robert Davis, saw the shooter at a distance of more 
than two car lengths for only a few seconds, and 
although Michael Sanchez testified that he got a good



41a

look at the shooter, it was only for a short moment 
under very stressful conditions.10 This is of course not 
to say there was insufficient evidence to convict 
Rosario. But Strickland makes clear that “a verdict or 
conclusion only weakly supported by the record is 
more likely to have been affected by errors than one 
with overwhelming record support.” 466 U.S. at 696. 
Such is the case here. See Lindstadt v. Keane, 239 
F.3d 191, 204-05 (2d Cir. 2001) (finding prejudice and 
reversing denial of writ of habeas corpus where trial 
counsel failed to investigate evidence that could have 
corroborated the petitioner’s alibi claims, and where 
the prosecution’s case rested on only two eyewit­
nesses and limited corroborating evidence); see also 
Espinal v. Bennett, 588 F. Supp. 2d 388, 402, 407-08 
(E.D.N.Y. 2008) (granting habeas relief when defense 
counsel failed to investigate a statement provided by 
a potential alibi witness who might have corroborated 
the petitioner’s own testimony regarding his where­
abouts on the day of the murder in a prosecution 
consisting primarily of two eyewitnesses, one of 
whose credibility was impeached), aff’d, 342 F. App’x. 
711 (2d Cir. Aug.18, 2009) (unpublished disposition).

10 A third eyewitness, Jose Diaz, believed that he might be 
able to identify the shooter, but failed to identify Rosario in 
court.



42a

II. Habeas Corpus Standards

The majority essentially concedes a Strickland 
violation and that Rosario would be entitled to relief 
if this case arose on direct review but denies the writ 
out of deference to the state court. Pursuant to 28 
U.S.C. § 2254, a federal court may not grant a writ of 
habeas corpus to a state prisoner “with respect to any 
claim that was adjudicated on the merits” by the 
state court unless the state court’s decision “was 
contrary to, or involved an unreasonable application 
of, clearly established Federal law, as determined by 
the Supreme Court of the United States.” 28 U.S.C. 
§ 2254(d)(1). Under this principle of deference, habeas 
relief may not be granted merely upon a “conclusion 
that counsel’s performance was constitutionally 
inadequate.” Carrion v. Smith, 549 F.3d 583, 591 n.4 
(2d Cir. 2008). Rather, “petitioner must identify some 
increment of incorrectness beyond error in order to 
obtain habeas relief.” Jones v. West, 555 F.3d 90, 96 
(2d Cir. 2009) (quoting Sorto v. Herbert, 497 F.3d 163, 
169 (2d Cir. 2007)). Moreover, as the majority notes, 
“because the Strickland standard is a general stan­
dard, a state court has even more latitude to reason­
ably determine that a defendant has not satisfied
that standard.” Knowles v. Mirzayance, 556 U .S .___,
129 S. Ct. 1411, 1420 (2009). Nevertheless, “the 
increment of incorrectness beyond error need not be 
great; otherwise, habeas relief would be limited to 
state court decisions so far off the mark as to suggest 
judicial incompetence.” Georgison v. Donelli, 588 F.3d 
145, 154 (2d Cir. 2009) (internal brackets omitted)



43a

(quoting Hoi Man Yung v. Walker, 468 F.3d 169, 176 
(2d Cir. 2006)).

A close review of the state court’s decision makes 
it entirely clear, however, that -  even affording the 
state court its due deference -  its decision rejecting 
Rosario’s claim was an unreasonable application of 
Strickland and should not stand.

At the outset, I note that the state court’s use of 
the “meaningful representation” standard led it to 
focus on certain factors that have little bearing on a 
proper Strickland analysis. And it appears to have 
done so at the expense of determining whether the 
undisputed mistakes made by Rosario’s defense 
counsel fell below objectively reasonable standards 
and, moreover, whether they caused him prejudice, as 
required under Strickland. Indeed, the state court 
relied heavily upon its finding that Rosario’s pre-trial 
and trial attorneys “represented [him] in a thoroughly 
professional, competent, and dedicated fashion.” It 
emphasized that “[b]oth attorneys filed all appropri­
ate motions; within the scope of the information that 
was then available to them, an investigation was 
conducted; witnesses were examined and cross- 
examined adeptly, professionally and with clarity; 
Mr. Kasier’s opening and closing statements were 
concise and to the point; and, most importantly, a 
credible alibi defense was presented to the jury.” The 
state court went on to emphasize that counsel’s 
mistake as to the denial of the application for investi­
gative fees “was not deliberate” and “does not alter 
the fact that both attorneys represented defendant



44a

skillfully, and with integrity and in accordance with 
the standards of ‘meaningful representation’ defined 
by [the New York state] appellate courts.” It wrote:

Defendant has tried to second-guess his 
trial counsel at almost every level of their 
representation. He has questioned the depth 
of their investigation, the scope and focus of 
cross-examination and argued that his alibi 
defense could have been better if they had 
only followed through on [the state trial 
court’s fee] order. His criticisms ignore the 
fact that Ms. Hartsfield and Mr. Kaiser ably, 
and professionally represented him at every 
stage of the case with integrity and in ways 
that were consistent with the standards of 
‘meaningful representation’ described above.

. . . And Mr. Kaiser at trial was prepared, 
skillful, purposeful, thoughtful and creative.

This type of analysis is entirely at odds with 
Strickland and is not dispositive of whether Rosario’s 
defense counsel were ineffective under the Sixth 
Amendment. It is axiomatic that, even if defense 
counsel had performed superbly throughout the bulk 
of the proceedings, they would still be found ineffec­
tive under the Sixth Amendment if deficient in a 
material way, albeit only for a moment and not delib­
erately, and that deficiency prejudiced the defendant. 
See, e.g., Henry v. Poole, 409 F.3d 48, 72 (2d Cir. 2005) 
(“[R]eliance on counsel’s competency in all other 
respects, . . . fail[s] to apply the Strickland standard 
at all.” (internal citation and quotation marks omitted)), 
cert, denied, 547 U.S. 1040 (2006); cf. Kimmelman v.



45a

Morrison, 477 U.S. 365, 386 (1986) (noting that while 
“[i]t will generally be appropriate . . .  to assess coun­
sel’s overall performance throughout the case in order 
to determine whether the identified acts or omissions 
overcome the presumption that a counsel rendered 
reasonable professional assistance,” a “failure to 
make reasonable investigations or to make a reason­
able decision that makes particular investigations 
unnecessary,” may be constitutionally deficient irre­
spective of trial performance (internal quotation 
marks omitted)).

It is far from clear whether the state court real­
ized this basic principle. In fact, the state court noted 
in a footnote that New York case law, in particular 
People v. Benevento, 91 N.Y.2d 708 (1998), “expressly 
rejected” Strickland’s requirement “that, but for the 
attorneys!”] errors, the result of the proceeding would 
have been different.” This footnote, viewed in context 
with the entirety of the court’s decision, begs the 
question whether the state court understood that 
New York state’s “ineffective assistance cases have 
departed from the second (‘but for’) prong of Strick­
land.,” only to “adopt[] a rule somewhat more favor­
able to defendants.” People v. Turner, 5 N.Y.3d 476, 
480 (2005) (emphasis added) (citing People v. Caban, 
5 N.Y.3d 143, 155-56 (2005); People v. Stultz, 2 N.Y.3d 
277, 284 (2004); Benevento, 91 N.Y.2d at 713-14). 
That is, it is unclear whether the state court appreci­
ated that even if prejudice in the Strickland sense is 
not shown, a defense attorney can be found ineffec­
tive under the New York State Constitution if his



46a

performance was so below par that he did not provide 
“meaningful representation” to his client. See Caban, 
5 N.Y.3d at 156 (“[U]nder our State Constitution, 
even in the absence of a reasonable probability of a 
different outcome, inadequacy of counsel will still 
warrant reversal whenever a defendant is deprived 
of a fair trial. . . . [0]ur state standard thus offers 
greater protection than the federal test. . . .”).

On a different note, at one point in the decision 
the state court sharply detoured into an analysis 
regarding newly discovered evidence. It wrote:

In order to prevail on a motion for a new 
trial based on a claim of newly discovered ev­
idence, a defendant must establish by a pre­
ponderance of the evidence that evidence has 
been discovered since the trial which could 
not, with due diligence, have been produced 
at trial, and which is of such a character 
that, had it been presented at trial, there is a 
probability that the verdict would have been 
more favorable for him. . . .

*  *  *

. . . the existence of these witnesses was 
not new evidence discovered since the trial. 
They were known to defendant, who imme­
diately gave their names to the police after 
his arrest, to his attorneys at their first and 
subsequent meetings, and to Jesse Franklin. 
Efforts were made to speak and interview 
them and the substance of their testimony 
was known to the parties before the trial be­
gan.



47a

It is unclear when, if ever, the court returned to 
the ineffective assistance of counsel analysis, and, 
more importantly, to what extent this detour infected 
that analysis. If this newly discovered evidence analy­
sis did in fact bleed over to the ineffective assistance 
of counsel analysis, the harmful effect is patent, con­
sidering the obvious tension between a newly dis­
covered evidence claim and an ineffectiveness claim 
based on an attorney’s failure to investigate an alibi 
that was disclosed to him by his client prior to trial.

It is true that a New York state court’s applica­
tion of the meaningful representation standard does 
not necessarily result in error affording a petitioner 
habeas relief because the standard, properly con­
strued, is more favorable to defendants. See Henry v. 
Poole, 409 F.3d at 68-71. It is also true that we do not 
grant habeas relief when a state court is merely 
inartful or unclear in its reasoning. But, in this case, 
it is entirely unclear to what extent the state court 
abandoned the Strickland analysis for a rule less 
favorable to defendants. Such an error would clearly 
be “contrary to” Strickland. 28 U.S.C. § 2254(d)(1).

The majority aptly pinpoints the “danger” of New 
York’s “meaningful representation” standard: though 
generally more protective of defendants’ rights than 
Strickland, it risks leading a court that “misunder- 
stand[s] the New York standard” to “look past a 
prejudicial error as long as counsel conducted him­
self in a way that bespoke of general competency 
throughout the trial.” Ante at 18-19. The state court’s 
opinion provides strong indications that this is



48a

precisely what happened here. Yet the majority fails 
to address the very real likelihood that the state court 
fell victim to the danger it identified, merely conclud­
ing that, in general, when properly applied, the New 
York standard is not contrary to Strickland. Id. at 19.

Nevertheless, I “need not make a determination 
under the ‘contrary to’ clause, for [I] conclude that 
the . . . Court’s rejection of [Rosario’s] ineffective- 
assistance-of-counsel claim was at least an objectively 
unreasonable application of Strickland.” Henry, 409 
F.3d at 71. It is clear from the record that the state 
court not only unreasonably focused on counsel’s 
overall performance and minimized their mistakes, 
but also unreasonably discounted the alibi evidence 
adduced at the post-conviction hearing and thus 
undervalued its prejudicial effect.

In terms of Strickland’s performance prong, the 
state court recognized that counsel’s failure to com­
plete their investigation was neither strategic nor the 
result of any sound trial strategy, but rather a “mis­
take.” The state court -  as well as the majority -  
appears to excuse this mistake because it was “not 
deliberate,” counsel’s performance was otherwise 
“skillful[ ] ,” and counsel conducted some investigation 
leading to the presentation of a putatively “credible” 
alibi defense. But none of this excuses the fact that 
counsel essentially turned a blind eye to the existence 
of substantial potentially exculpatory evidence of 
which it was aware and, moreover, did so not on the 
basis of any “reasonable professional judgment,” 
Strickland, 466 U.S. at 690, but rather as a result of



49a

pure inadvertence. Such conduct clearly falls below 
the threshold of minimal competence and, to the 
extent the state court found otherwise, I conclude 
that was an unreasonable application of Strickland.

With respect to prejudice, in relevant part, the 
state court reasoned:

[A]n alibi defense was presented through 
the two witnesses who had the best reason 
for remembering why defendant was present 
in Florida on June 19 [,] 1996 -  the birth of 
their son -  an event that was more relevant 
for them than the events relied upon by the 
other witnesses. . . . Moreover, the alibi evi­
dence offered by defendant at the hearing 
was in some cases questionable and in others 
raised issues which could have created ques­
tions for a deliberating jury. For example, 
two of the witnesses -  Lisette Rivero [sic], 
and Denise Hernandez -  could not say where 
defendant was on June 19 and 20. And 
Fernando Torres, when questioned about the 
purchase of auto parts years later, changed 
the date to three or four days before his 
grandson was born. . . .

. . .  It may not be cumulative to evidence 
presented at the trial -  which largely was 
the case herein -  and it must not be merely 
impeaching evidence. . . .

For instance, Chenoa Ruiz recalled de­
fendant’s presence in the Torres’ apartment 
on June 18 and 19, the two days prior to the 
birth of their child. And, Fernando Torres



50a

testified that he was with defendant and his 
son the day before his daughter-in-law gave 
birth. That testimony was cumulative to his 
son John’s trial testimony.

*  *  *

An investigator was not sent to Florida 
to interview witnesses. Nevertheless, the fact 
remains that the People’s case was strong, 
which was acknowledged by the Appellate 
Division when it affirmed the conviction 
herein. The prospective witnesses now before 
the court, studied closely, were, for the most 
part, questionable and certainly not as per­
suasive as the two witnesses who did testify, 
and were rejected by the jury.

First, the state court’s finding that “a credible 
alibi defense was presented to the jury” is hardly 
relevant to whether there is a reasonable probability 
of a different result had defense counsel presented a 
substantially more credible alibi defense. Second, the 
state court’s recognition that “an alibi defense was 
presented through the two witnesses who had the 
best reason for remembering why defendant was 
present in Florida on June 19, 1996 -  the birth of 
their son -  an event that was more relevant for them 
than the events relied upon by the other witnesses” 
also misses the point. It overlooks the fact that John 
and Seda were subject to impeachment as interested 
witnesses, and at least seven additional witnesses 
were available, a number of whom were less interested 
in the outcome of the trial, to corroborate their testi­
mony, as well as add additional facts.



51a

Third, although the court did find that “the alibi 
evidence offered by defendant at the hearing was in 
some cases questionable and in others raised issues 
which could have created questions for a deliberating 
jury,” it provided just three examples from a volumi­
nous record in support of this finding, none of which 
bear scrutiny. It noted that “two of the witnesses — 
Lisette Rivero [sic], and Denise Hernandez -  could 
not say where defendant was on June 19 and 20.” 
But, as discussed, these witnesses testified to addi­
tional, non-cumulative facts that placed Rosario in 
Florida around the day of the murder. See ante at 46- 
48. The relevancy of this evidence is indisputable. 
The court also noted that “Fernando Torres, when 
questioned about the purchase of auto parts years 
later, changed the date to three or four days before his 
grandson was born.” This is simply not supported by 
the record. In fact, when asked whether he told 
Rosario’s post-conviction counsel that he went looking 
for car parts with his son and Rosario three or four 
days before his grandson was born, Fernando 
responded, “No, I don’t recall that at all,” and main­
tained that the excursion occurred on June 19.

Fourth, the state court found that the additional 
alibi witnesses were “largely . . . cumulative.” To the 
extent that the additional alibi evidence corroborated 
John’s and Seda’s testimony, it is only reasonable to 
conclude that this militates in favor of a showing of 
prejudice. Again, John’s and Seda’s credibility was 
attacked by the prosecution. Corroboration was thus 
desperately needed. See, e.g., Washington v. Smith,



52a

219 F.3d 620, 634 (7th Cir. 2000) (“Evidence is cumu­
lative when it ‘supports a fact established by existing 
evidence,’ Black’s Law Dictionary 577 (7th ed. 1999), 
but Washington’s whereabouts on the day of the 
robbery was far from established -  it was the issue in 
the case. The fact that Pickens had already testified 
to facts consistent with Washington’s alibi did not 
render additional testimony cumulative.”).

Finally, the state court characterized the People’s 
case as “strong.” But, the fact remains that it was 
based solely on the eyewitness accounts of two 
strangers -  the type of evidence that this Court has 
repeatedly characterized as weak.

At bottom, the problem with the state court’s 
decision is its application of the reasonable proba­
bility standard. Contrary to the state court’s apparent 
belief, this standard does not require that the review­
ing court be convinced of Rosario’s alibi defense. 
“[T]he reasonable-probability standard is not the 
same as, and should not be confused with, a require­
ment that a defendant prove by a preponderance of 
the evidence that but for error things would have 
been different.” Wilson v. Mazzuca, 570 F.3d 490, 507 
(2d Cir. 2009) (quoting United States v. Dominguez 
Benitez, 542 U.S. 74, 83 n.9 (2004) (citing Kyles v. 
Whitley, 514 U.S. 419, 434 (1995))). “A reviewing 
court looks instead to whether the probability of a 
different result is sufficient to undermine confidence 
in the outcome of the proceeding.” Id. (internal quota­
tion marks omitted) (quoting Dominguez Benitez, 542 
U.S. at 83 (quoting Strickland, 466 U.S. at 694)); see



53a

also Porter v. McCollum, 558 U .S.___, 130 S. Ct. 447,
455-56 (2009) (per curiam) (“We do not require a 
defendant to show ‘that counsel’s deficient conduct 
more likely than not altered the outcome’ of his 
penalty proceeding, but rather that he establish ‘a 
probability sufficient to undermine confidence in 
[that] outcome.’ ” (alteration in original) (quoting 
Strickland, 466 U.S. at 693-94)).

Under the present circumstances, it is unreason­
able to conclude that the probability of a different 
result is not sufficiently likely so as to undermine the 
confidence in the verdict. Defense counsel failed to 
investigate Rosario’s alibi defense and, as a result, 
did not call at least seven additional alibi witnesses. 
Instead, they proceeded with only two witnesses, both 
of whom were impeached as interested. In a credi­
bility battle, such as this case, there is, to some 
extent, power in numbers -  that is, if presented with 
the additional evidence at trial, the jury would have 
had to disregard a total of at least nine defense 
witnesses claiming to have seen Rosario in Florida on 
and around the day of the murder, as opposed to just 
two interested witnesses. As discussed, the additional 
alibi witnesses would have provided further context 
to and corroboration of Rosario’s alibi defense, would 
have testified to non-cumulative facts, and a number 
of them would have been less subject to impeachment 
than John and Seda.

The prosecution’s principal argument is that the 
additional alibi witnesses are not as reliable or cred­
ible as John and Seda. It emphasizes that Fernando,



54a

Chenoa, Rivera and Godoy provided less detailed 
accounts of their recollection during interviews prior 
to the 440.10 hearing than they did on the stand 
during the actual hearing. We have noted, however, 
that such “silence is so ambiguous that it is of little 
probative force.” Victory v. Bombard, 570 F.2d 66, 70 
(2d Cir. 1978) (quoting United States v. Hale, 422 U.S. 
171, 176 (1975)). The prosecution also emphasizes 
that Chenoa did not recollect certain facts, such 
as when Rosario traveled back and forth between 
Florida and New York during his previous trips and 
the precise date he left Florida at the end of June 
1996. The fact that witnesses do not remember all 
relevant details is hardly surprising and certainly not 
dispositive as to whether they are reliable witnesses 
to the ultimate fact at issue, such as Rosario’s where­
abouts on or about June 19, 1996 -  particularly 
where, as here, there is a significant independent 
event to anchor memories surrounding the relevant 
date. The prosecution also argues that any harm 
created by defense counsel’s failure to call additional 
alibi witnesses is overwhelmed by the harm that 
Rosario caused himself by what it characterizes as 
lying on the stand when he did not disclose that he 
was incarcerated for part of March and April of 1996. 
This argument seems to cut the other way, however. 
That is, to the extent that the jury believed that 
Rosario was being deliberately deceptive, additional 
alibi witnesses were all the more necessary.

At bottom, the prosecution’s brief takes each 
witness’s testimony in isolation, picks it apart, and



55a

makes an assessment as to whether there is a rea­
sonable probability that the inclusion of that partic­
ular witness’s testimony would have affected the 
outcome of the trial. We cannot engage in such a 
piecemeal analysis. Rather, we must analyze the 
cumulative effect of counsel’s failure to call any of the 
additional alibi witnesses. See Lindstadt v. Keane, 
239 F.3d 191, 199 (2d Cir. 2001) (“Strickland directs 
us to look at the ‘totality of the evidence before the 
judge or jury’. . . . We therefore consider these errors 
in the aggregate.” (quoting Strickland, 466 U.S. at 
695-96)). This principle, which the majority’s analysis 
seems to overlook, is essential to the proper applica­
tion of Strickland, as we were yet again reminded by 
the Supreme Court in Porter v. McCollum, 558 U.S. 
__ , 130 S. Ct. 447, 453-54 (2009) (per curiam). I

I find defense counsel’s performance and the re­
sulting prejudice in this case very troubling. “[TJhere 
is nothing as dangerous as a poorly investigated alibi. 
An attorney who is not thoroughly prepared does a 
disservice to his client and runs the risk of having his 
client convicted even where the prosecution’s case is 
weak. A poorly prepared alibi is worse than no alibi at 
all.” 2 G. Schultz, Proving Criminal Defenses H 6.08 
(1991), quoted in Henry v. Poole, 409 F.3d 48, 65 (2d 
Cir. 2005), cert, denied, 547 U.S. 1040 (2006); cf. 
United States v. Parness, 503 F.2d 430, 438 (2d Cir. 
1974) (“It is axiomatic that exculpatory statements, 
when shown to be false, are circumstantial evidence 
of guilty consciousness and have independent prob­
ative force.”), cert, denied, 419 U.S. 1105 (1975).



56a

Defense counsel put forth a half-baked alibi defense, 
leaving substantial additional alibi evidence unex­
plored, and Rosario is paying the price. For all the 
foregoing reasons, I would grant the writ of habeas 
corpus on a conditional basis, providing the State 
with sufficient opportunity to commence a new prose­
cution against Rosario prior to his ordered release. 
Accordingly, I respectfully dissent.

I note that I agree with the majority’s implied 
denial of habeas relief on the basis of Rosario’s actual 
innocence claim. While I conclude it is unreasonable 
to hold that defense counsel performed adequately 
and that there is no reasonable probability that the 
verdict would have been different had the additional 
alibi witnesses testified at trial, I do not think that 
Rosario has surmounted the extraordinary hurdle 
required to succeed on an actual innocence claim, 
assuming such a claim exists under federal law. 
Finally, I would not so quickly dismiss Rosario’s claim 
of racial discrimination in the prosecutor’s use of 
peremptory challenges; however, I need not reach the 
merits of this claim, because I would grant a condi­
tional writ of habeas corpus based upon Rosario’s 
receipt of ineffective assistance of counsel, which 
would warrant a new trial or his release from custody 
— the same or greater relief that would be provided by 
a successful Batson challenge.



57a

MANDATE
UNITED STATES COURT OF APPEALS 

FOR THE 
SECOND CIRCUIT

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 12th day 
of April, two thousand and ten.

PRESENT: JOSE A. CABRANES,
CHESTER J. STRAUB,
RICHARD C. WESLEY,

Circuit Judges.

RICHARD ROSARIO,
Petitioner-Appellant,

v.
SUPT. ROBERT ERCOLE, 
GREEN HAVEN CORREC­
TIONAL FACILITY, 
ATTORNEY GENERAL 
ELIOT SPITZER,

JUDGMENT
Docket No. 08-5521-pr
(Filed Apr. 12, 2010)

Respondent-Appellees.

The appeal in the above-captioned case from the 
United States District Court for the Southern District 
of New York was argued on the District Court’s record 
and the parties’ briefs. Upon consideration thereof,



58a

IT IS HEREBY ORDERED, ADJUDGED and 
DECREED that the judgment of the District Court is 
AFFIRMED in accordance with the opinion of this 
Court.

FOR THE COURT, 
Catherine O’Hagan Wolfe, 

Clerk
[SEAL]

/s/ Catherine O’Hagan Wolf
Joy Fallek, Administrative 

Attorney

A True Copy
Catherine O’Hagan Wolf Clerk 
United States Court of Appeals Second Circuit 

[SEAL]
/s/ Catherine O’Hagan Wolf 
MANDATE ISSUED ON 09/01/2010



59a

APPENDIX B
United States Court of Appeals

FOR THE
SECOND CIRCUIT

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 April, two thousand nine,
Present:

Hon. Ralph K. Winter,
Hon. Jose A. Cabranes,
Hon. Sonia Sotomayor,

Circuit Judges.

Richard Rosario,
Petitioner-Appellant, 

v.
Supt. Robert Ercole, Green 
Haven Correctional Facility, 
et al.,

Respondents-Appellees.

Appellant, through counsel, moves for a certificate 
of appealability. Upon due consideration, it is 
hereby ORDERED that the motion is GRANTED. 
The Clerk’s Office shall issue a scheduling order.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk 
By: /s/ Franklin Perez____________

08-5521-pr 
(Filed Apr. 15, 2009)



60a

APPENDIX C
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
..................................................x
RICHARD ROSARIO, 05 Civ. 8072 (PKC)

Petitioner,
-against-

SUPERINTENDANT 
ROBERT ERCOLE,

MEMORANDUM 
AND ORDER

Respondent.
■............. .......x

P. KEVIN CASTEL, District Judge:

Following a jury trial in the New York Supreme 
Court, Bronx County, petitioner Richard Rosario was 
convicted of one count of murder in the second degree 
under New York Penal Law Section 125.25. The trial 
court sentenced Rosario to a term of imprisonment of 
25 years to life, pursuant to which he currently is 
incarcerated. He directly appealed his judgment and 
conviction to the New York Supreme Court Appellate 
Division, First Department, People v. Rosario, 288 
A.D.2d 142 (1st Dep’t 2001), and on March 26, 2002, 
was denied leave to review by the New York Court of 
Appeals. People v. Rosario, 97 N.Y.2d 760 (2002) 
(table). On September 16, 2005, Rosario filed this 
petition for a writ of habeas corpus pursuant to 28 
U.S.C. § 2254.



61a

The habeas petition asserts four grounds for 
relief. First, he asserts that he was denied the effec­
tive assistance of counsel pursuant to Strickland v. 
Washington, 466 U.S. 668 (1984). Second, he asserts 
that the trial court incorrectly ruled that he failed to 
establish a prima facie case of discrimination pursu­
ant to Batson v. Kentucky, 476 U.S. 79 (1986). Third, 
he asserts that the trial court deprived him of a due 
process right to a fair trial by improperly admitting 
extrinsic evidence of prior incarceration. Fourth, he 
asserts that he is actually innocent of the crime for 
which he was convicted.

I referred the petition to Magistrate Judge Henry 
B. Pitman on December 29, 2005. In a thorough, 107- 
page Report and Recommendation (the “R & R”) 
dated December 28, 2007, Magistrate Judge Pitman 
recommended that Rosario’s petition be conditionally 
granted as to his Batson claim and denied in all other 
respects. Both the petitioner and respondent have 
filed objections to the R & R.

I have reviewed the R & R de novo. R. 72(b), Fed. 
R. Civ. R; 28 U.S.C. § 636(b)(1). For the reasons 
explained below, I modify the R & R to the extent that 
it conditionally recommends granting the petitioner’s 
Batson claim. I adopt the R & R in all other respects. 
The petition is denied.

Background
On June 19, 1996, George Collazo was fatally 

shot in the head on Turnbull Avenue in Bronx County,



62a

New York. (Trial Tr. at 19.) At least three eyewitness­
es observed the incident, (Trial Tr. at 54-56, 133-66, 
286-94.) though only two of them testified that Ro­
sario was the shooter. One witness, Michael Sanchez, 
was a friend of the victim and present with him at the 
time of the shooting. (Trial Tr. at 137-65, 286-94.) He 
testified that an argument arose between Rosario and 
the victim after the victim uttered a racial epithet, 
and stated that he had a clear and unobstructed view 
of Rosario’s face during the verbal quarrel. (Trial Tr. 
at 139-50.) According to Sanchez, Rosario approached 
from behind shortly thereafter, and shot the victim 
with a revolver. (Trial Tr. at 152-55.) Three weeks 
after the shooting, a police lineup was organized, and 
Sanchez identified Rosario as the shooter. (Trial Tr. at 
164-65.) At trial Sanchez again identified Rosario as 
the shooter, and stated that he had no doubt, either 
at the lineup or at trial, that his identification of 
Rosario was correct. (Trial Tr. at 165.) A second wit­
ness, Richard Davis, identified Rosario as the shooter 
after reviewing photographs provided by police; he 
testified at trial that he had an unobstructed view of 
the shooting. (Trial Tr. at 53-66.) A third witness, Jose 
Diaz, testified that he heard the fatal shot and stated 
that he might be able to recognize the persons in­
volved in the dispute preceding the shooting, but he 
did not identify Rosario in the courtroom. (Trial Tr. at 
292-96.)

Two alibi witnesses -  Jenine Seda and John 
Torres — testified at trial that Rosario was with them 
in Florida on the day of the shooting. (Trial TV. at



63a

305-09.) Seda testified that she specifically recalled 
Rosario’s presence in her home, because the date of 
the shooting was one day before she gave birth to a 
son, and she further testified that Rosario was pre­
sent in her home when she returned from the hospi­
tal. (Trial TV. at 328, 334-35.) John Torres, Rosario’s 
friend and the father of Seda’s baby, testified at trial 
that on the day of the shooting, Rosario had spent the 
day with him purchasing auto parts for a broken- 
down car. (Trial TV. at 347.) Rosario also offered the 
testimony of a New York terminal manager for Grey­
hound Busline, who authenticated and explained a 
“readout of a transaction” dated June 30, 1996, 
indicating that Rosario had purchased bus tickets 
from Orlando, Florida to New York City. (Trial Tr. at 
366-69.) The terminal manager also testified that 
passengers generally are not required to submit 
identification when they pay and board, and are not 
required to use the ticket on its date of purchase. 
(Trial Tr. at 371-72.)

Rosario testified in his own defense, and asserted 
that he was present in Florida from late May through 
June 30, 1996, during which he hoped to find work 
and ultimately relocate. (Trial TV. 399-400.) Rosario 
further testified that his New York fiancee Minerva 
Godoy wired money to him in Florida via Western 
Union at least three times, and that the transfers 
were addressed to John Torres because Rosario 
himself lacked valid, government-issued identifica­
tion. (Trial Tr. at 422-24.) He stated that he resided 
with John Torres and Jenine Seda until after the



64a

birth of their child on June 20, 1996 (Trial Tr. at 409- 
10); that he and John Torres spent a day looking for 
auto parts together, even though he could not recall 
the precise date (Trial Tr. at 419.); and that he re­
turned to New York from Florida on June 30, 1996, 
upon hearing from his sister that detectives wished to 
speak to him in connection with the Collazo shooting. 
(Trial Tr. at 388-89.)

In rebuttal, the prosecution offered the testimony 
of Captain Bruce Bolton, records custodian of the 
Department of Corrections in Volusia County, Florida. 
Bolton testified that the Department’s records showed 
that Rosario was in Department custody from March 
13, 1996, through April 12, 1996. (Trial Tr. at 451.) 
Prior to this testimony, Rosario’s counsel objected 
that the rebuttal evidence would be unduly prejudi­
cial, and that Rosario was never directly questioned 
about his incarceration, such that Bolton’s testimony 
constituted extrinsic evidence on a collateral matter. 
(Trial Tr. a[t] 435-38.) The objection was overruled. 
(Trial Tr. at 438-39.)

The jury found Rosario guilty of murder in the 
second degree. (Trial Tr. at 595-98.)

Standard of Review
Under 28 U.S.C. § 2254, as amended by the 

Antiterrorism and Effective Death Penalty Act of 
1996, Pub.L. No. 104-132, 100 Stat. 1218 (“AEDPA”), 
federal courts must accord deference to the state 
court’s determination of a habeas petitioner’s claims.



65a

A federal court should not grant habeas relief to a 
person in custody pursuant to a state court judgment 
unless the state proceedings “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.” 28 U.S.C. § 2254(d)(1). “[T]he meaning of the 
phrase ‘clearly established Federal law, as deter­
mined by the Supreme Court of the United States’ . . . 
refers to the holdings, as opposed to the dicta, of [the 
Supreme] Court’s decisions as of the time of the 
relevant state-court decision.” Williams v. Taylor, 529 
U.S. 362, 412 (2000).

I. Pursuant to the Standard of Review Set Forth
bv AEDPA, the R & R is Adopted, and Petition­
er’s Ineffective Assistance Claim is Dismissed

In support of his claim that he received ineffec­
tive assistance of counsel in violation of the Sixth 
Amendment to the U.S. Constitution, Rosario argues 
that his trial counsel failed to undertake a sufficient 
investigation of his alibi defense, and neglected to 
seek out relevant and readily available witnesses and 
documentary evidence that established his presence 
in Florida on the date of Collazo’s shooting. He con­
tends that counsel’s actions were based in error and 
neglect, rather than conscious strategic decisions.

Rosario’s ineffective assistance claim is directed 
toward two of the four attorneys who represented him 
between his arrest and jury trial. Joyce Hartsfield



66a

represented Rosario from mid-July 1996 through 
mid-February 1998. (Hearing Tr. at 13-14, 117.) 
Steven J. Kaiser then represented Rosario through 
the conclusion of trial. (Hearing Tr. at 117.) The R & 
R recommended that I dismiss Rosario’s ineffective 
assistance claim based on the standard of review set 
forth in Section 2254(d)(1). For the reasons explained 
below, I adopt the R & R’s recommendation.

A. At Rosario’s Post-Conviction 440.10 Hear­
ing. Several Alibi Witnesses Testified that 
He was Present in Florida During June 
1996

The R & R thoroughly and carefully sets forth the 
events and testimony relevant to the ineffective 
assistance claim. I briefly recount them here.

Following Rosario’s unsuccessful direct appeal of 
his judgment and conviction, he filed a motion to 
vacate his judgment of conviction pursuant to Section 
440.10 of the New York Criminal Procedure Law, 
arguing that he had been denied effective assistance 
of counsel in regard to his alibi defense. An eviden­
tiary hearing was conducted before the Honorable 
Edward M. Davidowitz, Justice of the Supreme 
Court, Bronx County. In total, the 440.10 hearing 
included testimony from ten witnesses, including 
seven alibi witnesses, attorneys Kaiser and Harts- 
field, and the private investigator that Hartsfield 
retained. Rosario was represented by counsel and 
presented his ineffective assistance case at length. 
(Miller Dec. Ex. 61.)



67a

The R & R concluded that Rosario exhausted his 
ineffective assistance claim in state court (R & R at 
23-24), a conclusion that I adopt.

At the section 440.10 hearing, Hartsfield testified 
that she sought no documentary records to support 
Rosario’s alibi defense, including, among other things, 
money transfer records from Western Union that 
subsequently were destroyed pursuant to Western 
Union’s routine expunging of business records. (Hear­
ing Tr. at 28, 32; Miller Ex. 53.) Hartsfield did, how­
ever, retain an investigator named Jessie Franklin, 
for the purpose of locating and interviewing prospec­
tive alibi witnesses. (Hearing Tr. at 42-43.) Franklin 
spoke to Fernando Torres (father of trial alibi witness 
John Torres) and Robert Torres (John’s brother). 
(Activity Log of Jessie Franklin, attached at Miller 
Dec. Ex. 17.) On April 16, 1997, Hartsfield successful­
ly applied to the court for funds to further investigate 
the alibi defense, (Miller Dec. Ex. 29) and yet for 
reasons that are not entirely clear, pursued no subse­
quent investigation. She implied that logistical con­
cerns and unawareness of funding availability both 
may have influenced her actions. (Hearing Tr. at 50.) 
Hartsfield stated that there was no conscious strate­
gic decision not to press forward with investigating 
Rosario’s alibi defense:

Q. Miss Hartsfield, while you were repre­
senting Mr. Rosario, did you make a con­
scious strategic decision not to contact 
any particular witness?

A. No.



68a

Q. And while you were representing Mr. 
Rosario, did you make a conscious stra­
tegic decision not to pursue any particu­
lar evidentiary leads?

A. No.

(Hearing Tr. at 73.) In objecting to the R & R, the 
respondent also notes the following testimony from 
Hartsfield:

Q. And you didn’t have a strategic reason 
not to send [Jessie Franklin] during that 
year [to Florida], did you?

A. Not that I can recall, no, no.

(Hearing Tr. at 52.) Hartsfield did, however, testify 
that a successful alibi defense relied on witness 
credibility, and that a non-credible witness could 
jeopardize the defense. (Hearing Tr. at 95.) When 
asked whether John Torres and Jenine Seda were the 
best possible witnesses to provide alibi testimony, 
Hartsfield stated that she was “not in a position to 
make that evaluation.” (Hearing Tr. at 95.)

Hartsfield’s successor, Kaiser, stated via affir­
mation that Hartsfield indicated to him that the 
court had not authorized funds for a Florida investi­
gation, (Miller Dec. Ex. 50)1 but then submitted a 
second affirmation retracting his assertion that 
Hartsfield told him about a lack of funds, noting that

1 Hartsfield stated via affidavit that she did not recall 
making this representation to Kaiser. (Miller Dec. Ex. 51.)



69a

his “recollection is presently unclear” about the 
source of his misimpression concerning the availabil­
ity of investigation funds. (Miller Dec. Ex. 52.) He 
affirmed that he nevertheless attempted to locate and 
contact alibi witnesses in Florida. (Miller Dec. Ex. 
52.) As to the decision not to present additional alibi 
witnesses, he testified at the 440.10 hearing that he 
was under an impression that John Torres’s parents, 
Fernando and Margarita, seemed unwilling to travel 
to New York on grounds of expense, and generally 
seemed reluctant to serve as witnesses. (Hearing Tr. 
at 192-95.) He further testified that additional wit­
nesses merely may have duplicated the testimony of 
John Torres and Jenine Seda in a less-cooperative 
manner. (Hearing Tr. at 196, 276-78.) He stated that 
John Torres and Jenine Seda seemed like the best 
possible witnesses because they could establish the 
date of Rosario’s presence, and had no prior convic­
tions that would leave them vulnerable to impeach­
ment. (Hearing Tr. at 196, 221, 225.) He noted at trial 
that they “weren’t impeached in any way as being bad 
characters.” (Hearing Tr. at 196.) He did, however, 
state that he would have preferred to call additional 
alibi witnesses, including those who did not live with 
Rosario. (Hearing Tr. at 196-98.) Kaiser testified at 
the hearing that he was under the impression that 
funds for an investigation had been denied, so he 
made no effort to pursue one. (Hearing Tr. at 128-29, 
133, 210-11.)

Jessie Franklin, the investigator that Hartsfield 
retained to pursue Rosario’s alibi defense, also



70a

testified at the hearing. Her notes reflected that she 
held an hour-long meeting with Rosario, who pro­
vided contact information for John Torres, Robert 
Torres, Chenoa Ruiz, Ricardo Ruiz, Nerida Colon and 
Denise Hernandez. (Miller Dec. Ex. 19.) She stated 
that prior to drafting an affidavit supporting a grant, 
of additional investigation funds, she had contacted 
only two potential witnesses, Fernando and Robert 
Torres. (Hearing Tr. at 384-85, 403-04.) Both men 
indicated to her that they saw Rosario in Florida in 
late June 1996. (Hearing Tr. 391-92, 437-38; Notes of 
Jessie Franklin, attached at Miller Dec. Ex. 21.) 
Franklin did not subsequently contact Fernando or 
Robert Torres, and assumed that the request for 
investigation funds had been denied in light of lack 
of communication from Hartsfield. (Hearing Tr. at 
403, 407.) She later resumed the investigation, con­
tacted Jenine Seda and John Torres, and was told by 
John Torres that he could provide names of other 
alibi witnesses. (Hearing Tr. at 411-14.) Franklin 
attempted to contact others named by Rosario, but 
was unsuccessful. (Hearing Tr. at 415-17.) She tes­
tified that Kaiser never contacted her as to the inves­
tigation. (Hearing Tr. at 421-22.)

Several alibi witnesses provided testimony 
stating that Rosario was present in Florida in or 
around late June 1996. Fernando Torres testified 
that on the day of Collazo’s murder, he accompanied 
Rosario and John Torres on trips to buy auto parts, 
and that he did not know until several years after 
the fact the crime for which Rosario was convicted



71a

occurred on June 19, 2006 [sic]. (Hearing Tr. at 318- 
19, 364, 371-72, 374-75.) He then submitted a post­
hearing statement stating that he saw Rosario in 
John Torres’s apartment on June 19. (Miller Dec. Ex. 
56.) Chenoa Ruiz, a next-door neighbor to John Torres 
and Jenine Seda, testified that she observed Rosario 
on both June 18 and June 19, and recalled frequently 
feeling irritated with Rosario because he so often was 
“hanging out” with John Torres, who she believed 
should have been tending to Seda’s pregnancy. (Hear­
ing Tr. 497, 503, 527.) Rosario also was memorable to 
her, she added, because he often kept her boyfriend 
out late at night, which caused her problems. (Hear­
ing Tr. at 527.) She stated that she specifically ob­
served Rosario at the home of John Torres and Jenine 
Seda on June 19, when she picked up Seda for a 
doctor’s appointment. (Hearing Tr. at 548, 550.) She 
stated that she was not contacted by any attorney for 
Rosario until after his conviction, and that she would 
have been willing to testify at his trial. (Hearing Tr. 
at 509-10.) Michael Serrano testified that he recalled 
Rosario being present when John Torres returned 
from the hospital after Seda gave birth on June 20 -  
one day after Collazo’s shooting. (Hearing Tr. 719-20.) 
Various other witnesses testified that they observed 
Rosario in Florida in June 1996, and the R & R 
summarizes their testimony in detail. (R & R at 33- 
36, summarizing testimony of Ricardo Ruiz Minerva 
Godoy, Denise Hernandez and Lisette Rivera.)



72a

B. Following the 440.10 Hearing. Rosario’s 
Motion for Relief Based on Ineffective 
Assistance was Denied in the New York 
Supreme Court. Bronx County

Justice Davidowitz issued a 22-page opinion 
denying post-conviction relief. (Miller Dec. Ex. 62.) He 
summarized the testimony provided by witnesses at 
the 440.10 hearing. (Miller Dec. Ex. 62 at 7-15.) 
Justice Davidowitz ruled that Rosario received effec­
tive representation pursuant to the constitutions of 
the United States and the State of New York, and 
evaluated effectiveness pursuant to New York’s “mean­
ingful representation” standard set forth in People v. 
Benevento, 91 N.Y.2d 708 (1998), and People v. Baldi, 
54 N.Y.2d 137 (1981). His opinion noted that it was 
“relevant, but not dispositive” whether, but-for coun­
sel’s errors, Rosario would have been acquitted. 
(Miller Dec. Ex. 62 at 15.) The opinion noted that 
“meaningful representation” is assessed in a broad 
context and considers the attorney’s performance 
during the entire course of representation. (Miller 
Dec. Ex. 62 at 16-17.) Justice Davidowitz held that 
any error concerning the availability of investigation 
funds was due to “a misunderstanding or a mistake” 
and was not deliberate, (Miller Dec. Ex. 62 at 18) and 
also emphasized that two alibi witnesses testified at 
Rosario’s criminal trial. (Miller Dec. Ex. 62 at 18-19.) 
He considered John Torres and Jenine Seda the most 
credible among the possible alibi witnesses, and 
concluded that the other prospective witnesses, 
studied closely, were, for the most part, questionable 

and certainly not as persuasive as the two witnesses



73a

who did testify, and were rejected by the jury.” (Miller 
Dec. Ex. 62 at 21-22.) On September 8, 2005, the 
Appellate Division denied leave to appeal Justice 
Davidowitz’s decision. (Miller Dec. Ex. 63.)

C. AEDPA’s Deferential Standard of Review 
Requires Dismissal of Rosario’s Ineffective 
Assistance Claim

An ineffective assistance claim is determined 
under the well-known criteria of Strickland v. Wash­
ington, 466 U.S. 668 (1984). Strickland established a 
two-prong analysis for considering such a claim. The 
first considers whether counsel’s performance was 
objectively unreasonable. Any errors by counsel must 
be “so serious that counsel was not functioning as 
‘counsel’ guaranteed the defendant by the Sixth 
Amendment.” Id. at 687. Second, the petitioner must 
establish prejudice, as Strickland requires “that 
counsel’s errors were so serious as to deprive the 
defendant of a fair trial, a trial whose result is reli­
able.” Id. Both error and prejudice must be estab­
lished. Id.

“The essence of an ineffective-assistance claim is 
that counsel’s unprofessional errors so upset the 
adversarial balance between defense and prosecution 
that the trial was rendered unfair and the verdict 
rendered suspect.” Kimmelman v. Morrison, A ll U.S. 
365, 374 (1986). Scrutiny of counsel’s performance 
“must be highly deferential” and avoid hindsight. 
Strickland, 566 U.S. at 689. The petitioner bears the



74a

burden of proof to establish a constitutional violation 
in a habeas corpus proceeding. Zappulla v. New York, 
391 F.3d 462, 489 n.19 (2d Cir. 2004).

“An ineffective assistance claim asserted in a 
habeas petition is analyzed under the ‘unreasonable 
application’ clause of AEDPA because it is ‘past ques­
tion that the rule set forth in Strickland qualifies as 
clearly established Federal law, as determined by the 
Supreme Court of the United States . . .  Lynn v. 
Bliden, 443 F.3d 238, 247 (2d Cir. 2006) (quoting 
Williams, 529 U.S. at 391, cert, denied, 127 S.Ct. 1383 
(2007)). The petitioner must do more than “convince a 
federal habeas court that, in its independent judg­
ment, the state court applied Strickland incorrectly. 
Rather, he must show that the [state court] applied 
Strickland to the facts of his case in an objectively 
unreasonable manner.” Cox v. Donnelly, 387 F.3d 193, 
197 (2d Cir. 2004) (alteration in original) (quoting 
Bell v. Cone, 535 U.S. 685, 698-99 (2002)). “Unrea­
sonableness is determined by an objective standard,” 
Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 
2005), cert, denied, 547 U.S. 1191 (2006), and there­
fore “a federal habeas court may not issue the writ 
simply because that court concludes in its independ­
ent judgment that the relevant state-court decision 
applied clearly established federal law erroneously or 
incorrectly.” Gilchrist v. O’Keefe, 260 F.3d 87, 93 (2d 
Cir. 2001) (quoting Williams, 529 U.S. at 411). The 
state court’s application of federal law must reflect 
‘“ [s]ome increment of incorrectness beyond error,’ ” 
Gersten, 426 F.3d at 607 (alteration in original)



75a

(quoting Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 
2005)), although the increment “need not be great; 
otherwise, habeas relief would be limited to state 
court decisions so far off the mark as to suggest 
judicial incompetence.” Yung v. Walker, 341 F.3d 104, 
110 (2d Cir. 2003) (quoting Francis S. v. Stone, 221 
F.3d 100, 111 (2d Cir. 2000)).

In a careful and detailed analysis, the R & R 
independently concluded that both prongs of the 
Strickland test had been violated, (R & R at 42-56) 
before recommending dismissal of petitioner’s ineffec­
tiveness claim pursuant to AEDPA and the law of the 
Second Circuit. (R & R at 56-64.) I adopt Magistrate 
Judge Pittman’s recommendation that AEDPA re­
quires dismissal of petitioner’s Strickland claim.

As Rosario points out, the law of the State of New 
York does not analyze ineffectiveness claims pursuant 
to the Strickland framework. Instead, New York law 
looks to whether a defendant received “meaningful 
representation” during the process as a whole. Bene- 
vento, 91 N.Y.2d at 713-14. As noted by the R & R, 
Justice Davidowitz evaluated counsel’s performance 
pursuant to “a number of issues routinely considered 
by New York courts in analyzing whether or not 
counsels’ errors amounted to ineffective assistance, 
such as did counsel perform competently in other 
respects and were counsels’ errors so seriously preju­
dicial as to compromise a defendant’s right to a fair 
trial.” (R & R at 57 (collecting cases).) The R & R 
summarized Justice Davidowitz’s conclusions, noting 
that Rosario’s counsel filed all appropriate motions,



76a

competently examined witnesses and presented com­
petent opening and closing statements, and offered a 
credible alibi defense. (R & R at 57.) The R & R also 
noted Justice Davidowitz’s conclusion that the alibi 
witnesses not called at Rosario’s criminal trial were 
less persuasive than John Torres and Jenine Seda. 
(R & R at 57-58.)

First, I address whether the state court decision 
was “contrary to” Strickland. A state court decision is 
“contrary to” federal law if it is “diametrically differ­
ent” from, “opposite in character or nature” to, or 
“mutually opposed to” relevant Supreme Court prece­
dent. Williams, 529 U.S. at 405. The Second Circuit 
has held that New York’s standard of “meaningful 
representation” is not “contrary to” Strickland’s 
interpretation of the Sixth Amendment. See, e.g., Eze 
v. Senkowski, 321 F.3d 110, 123-24 (2d Cir. 2003); 
Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001). 
As noted, the Second Circuit also has indicated that 
a habeas petition raising Strickland is subject to 
“unreasonable application” analysis, and not the 
“contrary to” criteria set forth in AEDPA. Lynn, 443 
F.3d at 247.

The R & R notes language from Henry, which 
appeared to question whether New York’s approach 
to ineffectiveness necessarily satisfies Strickland’s 
prejudice prong. A relevant portion of Henry observes:

[I]n light of the Strickland principle that an
ineffective assistance claim is established if



77a

the court concludes that there is a reason­
able probability that but for counsel’s profes­
sional deficient performance the outcome of 
the proceeding would have been different, we 
find it difficult to view so much of the New 
York rule as holds that “whether defendant 
would have been acquitted of the charges but 
for counsel’s errors is . . . not dispositive,” 
as not “contrary to” the prejudice standard 
established by Strickland.

Henry, 409 F.3d at 71 (emphasis and ellipses in 
original; citations omitted). Henry also noted that the 
New York standard considers the fairness of the 
process as a whole, while Strickland’s prejudice prong 
focuses on whether attorney insufficient performance 
was outcome-determinative. Id. at 69. Rosario con­
tends that this potential divergence between the 
Sixth Amendment of the U.S. Constitution and New 
York’s ineffective assistance standard resulted in a 
decision contrary to Strickland, pursuant to 28 U.S.C. 
§ 2254(d)(1).

While Henry may or may not portend an eventual 
differentiation between Strickland and New York’s 
ineffectiveness standard, the R & R correctly noted 
that both Henry, 409 F.3d at 70, and Eze, 321 F.3d at 
123-24, held that in absence of a contradictory hold­
ing by either the Supreme Court of the United States 
or the Second Circuit sitting en banc, the courts of 
this Circuit remain bound by the holding of Lind- 
stadt, which concluded that the New York standard 
does not run afoul of Strickland. See 239 F.3d at 198. 
Justice Davidowitz also held that the jury’s guilty



78a

verdict was supported by the trial record, a consider­
ation consistent with Strickland’s prejudice prong. 
Strickland, 466 U.S. at 696. Thus, as the R & R 
properly observed, the state court believed that the 
prosecution’s case was sufficiently strong that the 
trial outcome would have been the same, even if 
additional alibi evidence had been offered. (R & R at 
62.)

Second, I conclude that the state court decision 
was not an “unreasonable application” of Strickland. 
Under the “unreasonable application” prong of Sec­
tion 2254(d)(1), a federal court may grant relief when 
a state court “ ‘correctly identifies the governing legal 
principle from [Supreme Court] decisions but unrea­
sonably applies it to the facts of a particular case.’ ” 
Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003) 
(quoting Bell v. Cone, 535 U.S. 685, 694 (2002)). 
Though the terminology employed by the state court 
varies from Strickland,2 I cannot conclude that it 
amounted to an unreasonable application of federal 
law. 28 U.S.C. § 2254(d)(1). Justice Davidowitz con­
cluded that the performance of Rosario’s counsel was

2 For example, as Rosario points out in his objections to the 
R & R, the state court’s opinion noted the diligence and integrity 
of counsel in matters of representation unrelated to the alibi 
defense. (Petitioner’s Objections to the R & R at 13-14.) While 
such considerations would not arise under a Strickland analysis, 
their presence in the state court opinion does not, in itself, 
render the state court’s analysis unreasonable under 2254(d)(1). 
To conclude otherwise would be a failure to apply Eze, 321 F.3d 
at 123-24, and Lindstadt, 239 F.3d at 198.



79a

not objectively unreasonable, and that the reliability 
of the trial’s outcome of the jury trial was not jeopard­
ized by the performance of his legal counsel. He noted 
that “most importantly, a credible alibi defense was 
presented to the jury.” (Miller Dec. 62 at 17.) He 
concluded that John Torres and Chenoa Ruiz were 
strong alibi witnesses because their memory of the 
defendant’s presence in Florida was related to the 
birth date of their son. (Miller Dec. Ex. 62 at 18-19.) 
He also noted inconsistencies presented in the testi­
mony of Fernando Torres. (Miller Dec. Ex. 62 at 19.) 
Though not delivered in Strickland terminology, the 
state court opinion ruled that 1.) Rosario was effec­
tively represented in his alibi defense, and 2.) that his 
representation did not undermine confidence in the 
jury’s verdict.

A cold reading of the testimony at the 440.10 
hearing does not point to only one clear conclusion 
concerning the possible impact of calling Chenoa Ruiz 
and Fernando Torres at trial. Yet the record does not 
support the conclusion that the state court’s fact­
finding was objectively unreasonable. A state court’s 
findings of fact are presumed to be correct, and can be 
rebutted only by clear and convincing evidence pro­
duced by the petitioner. Lynn, 443 F.3d at 246-47. A 
district court is not free to engage in de novo review of 
state-court fact-finding. Price v. Vincent, 538 U.S. 
634, 638-39 (2003).

Justice Davidowitz considered testimony from 
ten witnesses, recorded in more than 750 pages of 
hearing transcripts. (Miller Dec. Ex. 61.) His opinion



80a

included firsthand observations as to witness credibil­
ity and the comparative persuasiveness of the various 
witnesses presented, and, while not employing the 
terminology commonly used in a Strickland analysis, 
nevertheless found that 1.) counsel’s handling of the 
alibi defense was not ineffective, and 2.) counsel’s 
performance did not undermine the reliability of the 
trial’s outcome. In light of Justice Davidowitz’s opin­
ion and the record before me, I cannot hold that this 
conclusion was an unreasonable application of Strick­
land.

I therefore adopt the R & R’s recommendation 
that Rosario’s ineffective assistance claim be dis­
missed.3

II. The R & R is Modified as to Petitioner’s Batson 
Claim. Which is Dismissed

Jury selection in Rosario’s trial occurred in three 
rounds. It is undisputed that, before the second round

The R & R evaluated whether Rosario’s representation 
satisfied both Strickland prongs. (R & R at 42-56.) It concluded 
that it did not. However, as the R & R correctly recognized, a 
petitioner “must do more than show that he would have satisfied 
Strickland’s test if his claim were analyzed in the first instance, 
because under § 2254(d)(1), it is not enough to convince a federal 
habeas court that, in its independent judgment, the state-court 
decision applied Strickland incorrectly.” Bell, 535 U.S. at 698-99. 
Rather, in order to grant habeas relief, Strickland must be 
applied objectively unreasonable manner. Id. The state court’s 
ruling was not objectively unreasonable, and survives scrutiny 
under AEDPA.



81a

concluded, the prosecutor exercised six peremptory 
strikes, and that all six were exercised against 
African-American members of the jury pool. Peti­
tioner then raised an objection pursuant to Batson v. 
Kentucky, 476 U.S. 79 (1986), and the following 
exchange occurred:

MR. KAISER: Judge, most respectfully, and 
I hate to do it, but it’s reached the point now 
where I notice a pattern of challenges that 
are consistent only by one factor and that’s 
the race of the person that’s being chal­
lenged, all of whom are black. Every single 
one of them.
Now, granted this is the Bronx and there’s a 
lot of black jurors and there’s a couple or few 
that she didn’t take off, but the ones that she 
did take off without exception are Afro Amer­
icans.
THE COURT: Let’s see if there is a pattern.

(Whereupon, there is a brief pause in the 
proceedings.)
THE COURT: I do not see a prima facie 
case of exercised peremptory challenges by 
race. The People have exercised six 
peremptories of Afro Americans and there 
were four that were not challenged by her, 
three of whom are jurors, one of them whom 
you challenged. I deny your challenge.

(Miller Dec. Ex. 65 at 161-62.) The court then cor­
rected itself and stated that five African-American 
veniremembers went unchallenged by the prosecutor,



82a

not four. (Miller Dec. Ex. 65 at 163.) Jury selection 
resumed. The prosecution exercised five additional 
peremptory strikes, including one of an alternate 
juror. (Miller Dec. Ex. 65 at 164, Ex. 66 at 85-88.) 
Petitioner raised no additional Batson objection, and 
the race of the five additional challenged venire- 
members is not reflected in the record.

In his direct appeal to the Appellate Division, 
First Department, Rosario asserted that because the 
prosecution exercised all of its first six peremptory 
strikes against African-American veniremembers, he 
established a prima facie case of discrimination under 
Batson, and that the prosecution should have then 
been compelled to set forth race-neutral explanations 
for its challenges. The Appellate Division rejected 
the argument. People v. Rosario, 288 A.D.2d at 143. 
I adopt the Magistrate Judge’s conclusion that the 
petitioner exhausted his Batson claim in state court.

To guard against the discriminatory exercise of 
peremptory strikes in violation of the Equal Protec­
tion Clause of the Fourteenth Amendment, Batson 
and its progeny set forth a three-step framework for 
evaluating such a claim. First, the party challenging 
the strikes must establish a prima facie case that its 
adversary’s challenges are race-based. Batson, 476 
U.S. at 96-97. Once a prima facie case is made, the 
party exercising the strikes must provide a race- 
neutral explanation for its peremptory challenges. Id. 
at 97-98. The court must then determine whether the 
challenging party has established that the challenges 
were race-based. Id. at 96, 98.



83a

The threshold for establishing a prima facie case 
merely requires “evidence sufficient to permit the 
trial judge to draw an inference that discrimination 
has occurred.” Johnson v. California, 545 U.S. 162, 
170 (2005). A trial court weighing the existence of a 
prima facie case looks to all relevant circumstances, 
including numerical patterns and the questions and 
answers offered during the voir dire. Batson, 476 U.S. 
at 96-97. A Batson challenge brought via habeas 
petition must defeat the “presumption of correctness” 
afforded to the trial court’s first-hand observation of 
the events in voir dire. Galarza v. Keane, 252 F.3d 
630, 635 (2d Cir. 2001). “[I]t is one thing to conclude 
that a pattern of strikes is prima facie evidence of 
discrimination; it is a very different thing to hold that 
the contrary conclusion would be an unreasonable 
application of Batson.” Sorto v. Herbert, 497 F.3d 163, 
174 (2d Cir. 2007). Because the habeas petitioner 
bears the burden of demonstrating a violation of 
constitutional rights, if a deficiency in the record 
makes it impossible to ascertain the existence of 
discriminatory conduct, the petitioner’s claims must 
be rejected. Id. at 172-73. The Second Circuit also has 
observed that while the burden of showing a prima 
facie case is not onerous, it safeguards “the tradi­
tional confidentiality of a lawyer’s reason for per­
emptory strikes unless good reason is adduced to 
invade it. . . .” Id. at 170 (citing Miller-El v. Dretke, 
545 U.S. 231 (2005)).

The R & R concluded that the state trial court 
unreasonably applied federal law in ruling that



84a

Rosario failed to establish a prima facie case under 
Batson and recommended that the habeas petition be 
conditionally granted as to its Batson claim. (R & R at 
69-82.) It reasoned that “[t]he prosecutor’s dispropor­
tionate strikes of black jurors, despite the fact that 
not all blacks were stricken from the jury, was suffi­
cient to raise an inference of discrimination and, 
therefore, sufficient to establish a prima facie case 
under Batson.” (R & R at 82.) In reaching this conclu­
sion, the R & R relied on United States v. Alvarado, 
923 F.2d 253 (2d Cir. 1991), and emphasized that at 
the time Rosario raised his Batson objection, six of six 
peremptories were brought against African-American 
veniremembers. (R & R at 74-78.)

The Second Circuit often has noted the perils of 
using a snapshot in time amid an incomplete voir dire 
when reviewing a Batson objection raised in a habeas 
petition. To ascertain the existence of a prima facie 
case, “[t]he discharge of this burden may entail a 
review of prosecutorial strikes over the span of the 
selection process.” Sorto, 497 F.3d at 170. This is 
because, in part, “[t]he need to examine statistical 
disparities may commend a wait-and-see approach,” 
and because “an early Batson challenge limits the 
state court’s ability to properly assess a prima facie 
case.” Id.

In Overton v. Newton, 295 F.3d 270, 279 (2d Cir. 
2002), a Batson objection arose partway through voir 
dire. At the time of the objection, the prosecutor had 
exercised seven peremptory strikes against African- 
American veniremembers, whereas three African



85a

Americans had been seated as jurors and one African- 
American veniremember had been struck for cause. 
Id. The state trial court ruled that the petitioner 
failed to establish a prima facie case. Id. The Second 
Circuit held that because the statistics-based Batson 
objection arose partway through jury selection, it was 
not unreasonable for the trial court to deny the 
motion. Id. Overton explained the complications of 
granting habeas relief pursuant to a statistics-based 
Batson objection arising before jury selection com­
pletes:

[T]he trial judge never confronted, and the 
trial record does not reveal, what the statis­
tics would have shown at the conclusion of 
jury selection. If those statistics sufficiently 
established the inference that challenges 
were based on race, the court could then 
have implemented the Batson process to en­
sure that impermissible challenges would 
not be allowed. If, on the other hand, the sta­
tistics at the conclusion failed to support a 
sufficient inference, there would be no need 
to engage in the process. We cannot say, on 
this record, that the trial judge’s refusal to 
implement Batson’s process for testing each 
questioned challenge midway in the process 
was an unreasonable application of the Bat­
son requirements.

Id. at 279-80. Overton noted that this caution is 
particularly warranted when reviewing a state court’s 
Batson determinations pursuant to a habeas petition. 
Id. at 280 n.12. In Williams v. Burge, 2005 WL



86a

2429445, at *4-6 (S.D.N.Y. Oct. 3, 2005), aff’d, 257 
Fed. Appx. 337 (2d Cir. 2007) (table), this Court 
applied Overton and held that it was not objectively 
unreasonable for a state trial court to find no prima 
facie case when a Batson objection arose partway 
through jury selection. Similarly, in Sorto, the Second 
Circuit held that a state court acted reasonably when 
it denied as premature a Batson challenge “after only 
three peremptory strikes.” 497 F.3d at 171.

Subsequent to the R & R in this case, the Second 
Circuit again affirmed dismissal of a habeas petition 
raising a statistics-based Batson objection prior to the 
conclusion of jury selection:

[HJere, petitioner’s Batson challenge was de­
nied as premature, she failed to renew the 
motion, and the status of jury selection at 
the time of the challenge did not insure that 
the statistics would establish a prima facie 
case irrespective of what happened during 
the jury selection process thereafter.

Brown v. Alexander, ___F.3d___ , 2008 WL 4287864,
at *7 (2d Cir. Sept. 22, 2008). In Brown, the defen­
dant’s trial counsel argued partway through jury 
selection that the prosecutor exercised its peremptory 
strikes in a discriminatory fashion when seven of 
eight peremptory strikes were used against African- 
American veniremembers. Id. at *2, *2 n.2. The trial 
court denied the Batson challenge, which was never 
renewed by trial counsel. Id. at **2-3. The Second 
Circuit held that the trial court’s ruling was not 
unreasonable. Id. at **7-8. In so holding, Brown



87a

underscored the holdings of Overton and Sorto, and 
further illuminated the perils posed to a habeas court 
reviewing a Batson challenge “lodged relatively early 
in the jury selection process.” Id. at *6. Of course, 
because Brown post-dates the R & R, it was issued 
without the benefit of Brown’s holding and analysis, 
which makes clear that in many situations, a trial 
court’s “ ‘wait-and-see’ approach” is not an unreason­
able application of Batson.

As in Overton, Sorto and Brown, the record of 
jury selection here precludes me from holding that 
the trial court’s ruling was unreasonable. In this 
instance, the reliance on United States v. Alvarado, 
923 F.2d 253 (2d Cir. 1991), is misplaced. Alvarado, 
which was reviewed under a direct appeal, holds that 
a defendant successfully establishes a prima facie 
case under Batson when there is significant statisti­
cal disparity between the prosecution’s challenge rate 
against minorities and the overall minority composi­
tion of the venire. Id. at 255. As pointed out by the 
respondent in his objections to the R & R, Alvarado’s 
statistical analysis accounted for minority venire- 
persons who went unchallenged by the prosecutor, 
and looked to the overall rate of minority-directed 
challenges in light of those who were unchallenged. 
In its statistical analysis, Alvarado noted that “the 
prosecution challenge rate against minorities was 50 
percent (three of six) in the selection of the jury of 12,



88a

and 57 percent (four of seven) in the selection of the 
jury of 12 plus alternates.” Id. at 255.4

It is true that at the time petitioner raised his 
Batson objection, six of six peremptory strikes had been 
exercised against African-American veniremembers, 
while five other African Americans from the pool 
were unchallenged by the prosecution. (Miller Dec. 
Ex. 65 at 161-63.) Thus, under Alvarado, the rele­
vant focus is that six of 11 -  or slightly less than 55 
percent -  African-American veniremembers were 
challenged, not that 100 percent of peremptory 
challenges were brought against African-American 
veniremembers. The transcript of jury selection 
indicates that at the time of the Batson objection, 
there were 11 African-American veniremembers in a 
pool of 21 potential jurors, excluding those potential 
jurors removed on consent. (Miller Dec. Ex. 65 at, 88, 
90-92, 94, 100-02, 156-63.) Thus, it appears from the 
transcript that at the time of the Batson objection,

4 Alvarado’s statistical breakdown is brief and somewhat 
cryptic, so it is worthwhile to point out the statistical analysis of 
its predecessor opinion, U.S. v. Alvarado, 891 F.2d 439, 444 (2d 
Cir. 1989), vacated on other grounds, 497 U.S. 543 (1990) (per 
curiam). Alvarado I explicitly rejected the argument that the 
relevant strike rate looks to the percentage of peremptories 
directed at minorities (in that case, four minority-striking 
peremptories out of six peremptories used) as opposed to 
considering challenges in light of those waived (in that case, four 
minorities peremptorily struck out of seven minorities in the 
jury pool). Id. The statistical approach of Alvarado I was em­
ployed by its successor upon remand, without reference to the 
rejected approach. 923 F.2d at 255.



89a

African Americans were 52 percent of the jury 
pool, and challenged at a rate of 55 percent. As the 
respondent argues, this challenge rate is not a signif­
icant variant from the overall percentage of African- 
American veniremembers, and is insufficient to 
establish a prima facie case under Batson. See gen­
erally Harrison u. Ricks, 326 F. Supp. 2d 372, 378-79 
(E.D.N.Y. 2004), aff’d 150 Fed. Appx. 95 (2d Cir. 
2005) (table); Barbara v. Goord, 98 Civ. 4569, 2001 
WL 1776159, at *3 n.2 (Dec. 27, 2001) (Raggi, J.) 
(pursuant to Alvarado, “a prosecutor’s percentage of 
minority challenges should be calculated by consid­
ering waived as well as exercised challenges.”); but 
see Truesdale v. Sabourin, 427 F. Supp. 2d 451, 461 
(S.D.N.Y. 2006) (emphasizing that 100 percent of 
peremptory challenges were exercised against minor­
ity veniremembers). I

I also note that in Alvarado, the Second Circuit 
heard a direct appeal from a federal criminal case, 
and was not considering a habeas petition pursuant 
to Section 2254. 923 F.2d at 254. The deference re­
quired under AEDPA is not equivalent to the scrutiny 
of an appellate court exercising direct review. See, 
e.g., Overton, 295 F.3d at 280 n.12 (“Our ruling in this 
case is governed by the deferential standard pre­
scribed by AEDPA for habeas review by a federal 
court of a state court determination. We, therefore, do 
not address the question that would arise if this were 
a direct appeal from a federal criminal trial on the 
same facts and make no suggestion as to how such a 
case should be decided.”); see also Galarza, 252 F.3d



90a

at 635 (“[W]hen reviewing a Batson challenge in the 
context of a habeas petition, a trial court’s conclusion 
that a peremptory challenge was not exercised in a 
discriminatory manner is entitled to a presumption of 
correctness. . .

I conclude that the trial court was not unreason­
able in ruling that petitioner failed to establish a 
prima facie case showing discriminatory exercise of 
peremptory strikes, and that the petition’s claim for 
relief on Batson grounds is denied. The R & R is 
modified accordingly.

III. The R & R Correctly Concluded that Rosario’s 
Constitutional Rights Were Not Violated by 
the Testimony of the Prosecution’s Rebuttal 
Witness

Rosario contends that he was denied his Four­
teenth Amendment right to due process because the 
trial court allowed, over counsel’s objection, the 
testimony of the prosecution’s rebuttal witness, 
Captain Bruce Bolton, the records custodian of the 
Department of Corrections in Volusia County, Florida. 
(Petition, Ground Three.) Bolton testified that 
Rosario was in Department custody from March 13, 
1996, through April 12, 1996. (Trial Tr. at 451.)

First, I adopt the R & R’s conclusion that 
Rosario exhausted this claim in the state courts. 
Consistent with Davis v. Strack, 270 F.3d 111, 122 
(2d Cir. 2001), Rosario alerted the Appellate Division 
of his contention that he was denied due process



91a

under the Fourteenth Amendment, and incorporated 
that contention in his submission to the New York 
Court of Appeals. (Appellate Division Brief at I, 
attached at Blira-Koessler Aff. Ex. 1; R & R at 86-89.) 
The Appellate Division ruled on the merits of this 
claim. People v. Rosario, 288 A.D.2d at 142-43. The 
respondent’s contention that this claim is unex­
hausted lacks merit.

Second, I adopt the R & R’s conclusion that 
Bolton’s testimony did not violate the Fourteenth 
Amendment. As noted by the R & R, evidentiary 
rulings, even erroneous ones, rarely rise to the level 
of a constitutional violation. See, e.g., Estelle v. 
McGuire, 502 U.S. 62, 67-70 (1991). Habeas relief can 
be granted only if improperly admitted evidence is so 
unfair that it violates fundamental concepts of jus­
tice. See, e.g., Dowling v. United States, 493 U.S. 342, 
352 (1990). The erroneous evidence must have pro­
vided the basis for conviction, or else the evidence 
must be so integral that without it, reasonable doubt 
would have existed. Dunnigan v. Keane, 137 F.3d 117, 
125 (2d Cir. 1998).

Rosario’s testimony opened the door for im­
peachment evidence concerning his whereabouts 
during March and April, 1996. He testified that he 
was in Florida until mid-April because he was “hav­
ing a good time” and “enjoying being out there.” (Trial 
Tr. at 384.) He stated that during this time, he “was 
staying in a girl’s house I met over there,” and resided 
with her from February through mid-April 1996. 
(Trial Tr. at 382, 394-95.) Bolton’s testimony was 
introduced for the purpose of impeaching Rosario’s



92a

factual statements. As noted in the R & R, when a 
defendant provides testimony as to a specific fact, the 
prosecutor may offer impeachment testimony show­
ing that the defendant’s testimony was untruthful. 
United States v. Beno, 324 F.2d 582, 588 (2d Cir. 
1963), cert, denied, 379 U.S. 880 (1964). Even if the 
issue is a collateral one, a witness is not permitted to 
benefit from “a gratuitously offered statement.” Id.

Rosario also contends that the rebuttal evidence 
prompted the jury to conclude that he had a propen­
sity toward criminal conduct, and that the resulting 
prejudice violated his due process rights. The trial 
judge, however, issued a limiting instruction directed 
toward Bolton’s testimony:

The defendant’s incarceration in Florida is 
not evidence of the defendant’s guilt in this 
case nor evidence that the defendant is the 
person who was disposed to commit crimes.
You should consider such testimony only in 
determining the credibility of witnesses who 
have appeared before you. You should not 
consider his testimony for any other purpose.

(Trial Tr. at 565.) Jurors are presumed to follow 
instructions, Zafiro v. United States, 506 U.S. 534, 
540 (1993), including limiting instructions. United 
States v. Stewart, 433 F.3d 273, 307 (2d Cir. 2006). 
The risk of prejudice is most likely to outweigh the 
power of a limiting instruction in instances when 
impeachment testimony includes a crime similar to 
the one for which the defendant is on trial. See, e.g., 
United States u. Puco, 453 F.2d 539, 542 (2d Cir.



93a

1971). However, in this instance, the trial judge did 
not specify the crime for which Rosario was incarcer­
ated, and it is unlikely that a juror would infer from 
the brief period of imprisonment that Rosario had 
been convicted of murder or a similarly serious of­
fense.

I adopt Magistrate Judge Pitman’s recommen­
dation that Rosario’s due process claim should be 
denied.

IV. The R & R Correctly Concluded that Rosario’s
Actual Innocence Claim Should Be Dismissed

Rosario asserts that his habeas petition should 
be granted on grounds of actual innocence. (Petition, 
Ground Two.) He contends that relief on grounds of 
actual innocence is appropriate because nine wit­
nesses have provided exculpatory testimony placing 
him in Florida at or around the date of Collazo’s 
murder, and because he was convicted on the basis of 
eyewitness testimony. {Id.)

Actual innocence may excuse a procedural de­
fault, and may arguably provide a basis not to apply 
the statute of limitations imposed by AEDPA. Doe v. 
Meneffee, 391 F.3d 147, 161 (2d Cir. 2004); Whitley v. 
Senkowski, 317 F.3d 223, 225-26 (2d Cir. 2003). 
Neither the Supreme Court nor the Second Circuit 
has recognized a freestanding claim of actual inno­
cence as a basis for habeas relief. See Herrera v. 
Collins, 506 U.S. 390, 400 (1993) (“Claims of actual 
innocence based on newly discovered evidence have



94a

never been held to state a ground for federal habeas 
relief absent an independent constitutional violation 
occurring in the underlying state criminal proceed­
ing.”); United States v. Quinones, 313 F.3d 49, 67 (2d 
Cir. 2002) (citing Herrera and noting that actual 
innocence has not been held to provide an independ­
ent basis for habeas relief). Nevertheless, for the 
purpose of this petition, I will generously assume that 
such a basis for relief exists.

As the R & R notes, a successful claim for actual 
innocence requires the petitioner to come forth with 
new and reliable evidence making it more likely than 
not that no reasonable juror presented with that 
evidence would have convicted the petitioner. Schlup 
v. Delo, 513 U.S. 298, 327 (1995). A reviewing court 
must evaluate the actual innocence claim in light of 
the entire record, including evidence that may have 
been inadmissible. Id. at 162; Doe, 391 F.3d at 161.

In concluding that the actual innocence assertion 
should be rejected, the R & R noted that, even if ad­
ditional alibi testimony had been admitted, Rosario’s 
acknowledgement that he often traveled between 
New York and Florida might prompt a reasonable 
juror to conclude that Rosario was present in New 
York in mid-June. (R & R at 103.) It noted that the 
prosecution’s two eyewitnesses expressed great 
confidence that Rosario was the shooter, and that 
their testimony was unimpeached at trial. (R & R at 
103.) The alibi witnesses all risked impeachment on 
grounds that they were friends of Rosario, the R & R 
noted. (R & R at 103.) I cannot conclude that no



95a

reasonable juror would have been persuaded by the 
prosecution’s case, see Bousley v. United States, 523 
U.S. 614, 623 (1998), in what would have been, at 
heart, a credibility contest.

In addition, as the R & R notes, an actual inno­
cence claim considers “whether the new evidence on 
which the actual innocence claim is based is reliable.” 
Doe, 391 F.3d at 165. The R & R notes that, for exam­
ple, witnesses at the 440.10 hearing had contradicto­
ry recollections as to Jenine Seda’s whereabouts on 
June 19, 1996. Such contradictions would lead to 
further questions about the reliability of the memo­
ries of the alibi witnesses and their placement of 
Rosario at a certain time and place. Given the pas­
sage of time, witness memories inevitably fade. 
Perhaps a jury would fully credit Rosario’s alibi 
witnesses, or perhaps they would not. In either event, 
the alibi testimony is not so ironclad in its reliability 
that it satisfies the criteria for actual innocence.

I adopt in full Magistrate Judge Pitman’s rec­
ommendation that the actual innocence claim be 
dismissed.

Conclusion

The R & R is modified to the extent that it rec­
ommends granting the petitioner relief on his Batson 
claim. It is adopted in all other respects. The petition 
is dismissed.



96a

Petitioner has not made a substantial showing of 
the denial of a constitutional right, and, accordingly, a 
certificate of appealability will not issue. 28 U.S.C. 
§ 2253.

SO ORDERED.

/s/ P. Kevin Castel 
P. Kevin Castel 
United States District Judge

Dated: New York, New York 
October 22, 2008



97a

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK
-— ----- ----------------------- ------X
RICHARD ROSARIO,

Petitioner,
-against-

ROBERT ERCOLE, Super- 
intendant,

Respondent.
------------------------ ------ ------ ------ x

Whereas on December 28, 2007, the Honorable 
Henry B. Pitman, United States Magistrate Judge, 
having issued a report and recommendation (“report”) 
recommending that the petition be conditionally 
granted as to the Batson claim and denied in all other 
respects, and the matter having come before the 
Honorable P. Kevin Castel, United States District 
Judge, and the Court, thereafter, on October 22, 2008, 
having rendered its Memorandum and Order modify­
ing the report to the extent that it conditionally 
recommends granting the petitioner’s Batson claim, 
adopting the report in all other respects, and denying 
the petition, it is,

ORDERED, ADJUDGED AND DECREED:
That for the reasons stated in the Court’s Memoran­
dum and Order dated October 22, 2008, the report is 
modified to the extent that it conditionally recom­
mends granting the petitioner’s Batson claim; the 
report is adopted in all other respects; and the

05 CIVIL 8072 (PKC) 
JUDGMENT

(Filed Oct. 23, 2008)



98a

petition is dismissed; the Court finds that because 
petitioner has not made a substantial showing of the 
denial of a constitutional right, a certificate of 
appealability will not issue.

DATED: New York, New York 
October 23, 2008

J. MICHAEL McMAHON 
Clerk of Court

BY: /s/ [Illegible]__________________
Deputy Clerk.



99a

APPENDIX D
UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF NEW YORK

RICHARDS ROSARIO,
Petitioner,

-against-
ROBERT ERCOLE,
Superintendent of Green 
Haven Correctional Facility

Respondent. 
-----------------------------------------x

PITMAN, United States Magistrate Judge:

TO THE HONORABLE P. KEVIN CASTEL, 
United States District Judge,

I. Introduction
Petitioner Richard Rosario seeks, by his petition 

for a writ of habeas corpus pursuant to 28 U.S.C. 
§ 2254, an Order vacating a judgment of conviction 
entered on November 23, 1998 after a jury trial in the 
Supreme Court of the State of New York, Bronx 
County (Fisch, J.), for one count of murder in the 
second degree in violation of New York Penal Law 
Section 125.25. By that judgment, petitioner was 
sentenced to an indeterminate term of imprisonment 
of twenty-five years to life and is currently incar­
cerated pursuant to the judgment.

05 Civ. 8072 (PKC) 
(HBP)

REPORT AND 
RECOMMENDATION



100a

Petitioner asserts four claims in his petition: 
(1) that petitioner was denied his Sixth Amendment 
right to the effective assistance of counsel, (2) that 
the Trial Court erred when it failed to find that 
petitioner had made out a prima facie case of discrim­
ination under Batson v. Kentucky, 476 U.S. 79 (1986), 
(3) that the Trial Court deprived petitioner of his due 
process right to a fair trial by erroneously admitting 
extrinsic evidence of petitioner’s prior incarceration, 
and (4) that petitioner is actually innocent of the 
crime for which he has been convicted. (Memorandum 
of Law in Support of Petition Under 28 U.S.C. § 2254 
for Writ of Habeas Corpus (“Pet. Mem.”) at 2-3).

For the reasons set forth below, I respectfully 
recommend that the petition be conditionally granted 
with respect to petitioner’s Batson claim and denied 
in all other respects.

II. Background
A. Facts Leading to Petitioner’s Conviction 

1. The Prosecution’s Case
Early in the afternoon on June 19, 1996 petitioner 

shot George Collazo in the head on Turnbull Avenue 
in Bronx County, New York, fatally injuring him 
(Trial Tr.1 at 19). There were at least three eyewit­
nesses to the incident: Michael Sanchez, Collazo’s 
friend; Robert Davis, a porter who was working in the

1 «‘Trial Tr.” refers to the transcript of petitioner’s trial.



101a

vicinity of the shooting when it occurred; and Jose 
Diaz, a food vendor who was also working in the 
vicinity of the shooting that day (Trial Tr. at 54-56, 
133-67, 286-94).

Sanchez testified at trial that he and Collazo 
were walking on White Plains Road when they 
passed two males, one of whom Sanchez described at 
trial as a tall, thin Hispanic male with a fade haircut 
and a moustache; Sanchez described the other male 
as black (Trial Tr. at 139-47). Sanchez testified that 
after he and Collazo passed the two men, Collazo 
stated “why do these niggers always have to front” 
(Trial Tr. at 141). An argument ensued between 
Collazo and the Hispanic male, during which Sanchez 
stood approximately two feet from the Hispanic male 
and had an unobstructed view of the Hispanic male’s 
face (Trial Tr. at 145, 149-50). After about a minute of 
arguing, Collazo and Sanchez walked away, continu­
ing down White Plains Road and then turning on to 
Turnbull Avenue (Trial Tr. at 150, 190).

According to Sanchez, while he and Collazo were 
walking on Turnbull Avenue, the Hispanic male, with 
whom Collazo had just argued, approached them 
from behind and said something to get their attention 
(Tr[i]al Tr. at 153). When Sanchez turned around, the 
male was pointing a chrome revolver at Collazo; he 
then fired a single shot that hit Collazo in the head 
and ran away (Trial Tr. at 152-55). Sanchez ran after 
the shooter for a short distance, but then returned to 
the scene and yelled to nearby workers to call the 
police (Trial Tr. at 156). Sanchez testified that he had



102a

no doubt that petitioner was the shooter both when 
he identified petitioner in a lineup almost three 
weeks after the shooting and when he identified 
petitioner at trial (Trial TV. at 165).

On the day of the murder, Robert Davis, a porter, 
was working on Turnbull Avenue when he heard 
someone say, “You won’t do this anymore” (Trial TV. at 
53-56). Davis then saw three men walking towards 
him when one shot another in the head and ran (Trial 
TV. at 56-57). Davis testified that he was able to see 
the faces of the three men, none of whom he had ever 
seen before and who were approximately two car 
lengths away from him at the time. Although it had 
started to drizzle, Davis had an unobstructed view of 
the incident (Trial TV. at 58).

Davis reviewed “mug books” at the police precinct 
on the day of the shooting, but could not then identify 
the shooter (Trial TV. at 80). Later that day detectives 
went to Davis’ place of work with additional photo­
graphs. Davis believes he looked at 50 to 75 more 
photos before he identified petitioner’s (Trial TV. at 
86). Davis testified that the officers and detectives 
who presented the photographs to him did not tell 
him that he had to select a photograph, and the 
photograph he selected was not marked (Trial TV. at 
85-86). Davis also testified that after he selected 
petitioner’s photograph, he never saw the photo again 
(Trial TV. at 88). Davis testified that when he recog­
nized petitioner in a lineup on July 9 and in court, 
he had no doubt that petitioner was the shooter (Trial 
TV. at 66).



103a

Jose Diaz, a food vendor operating a hot dog 
truck on the day of the shooting, witnessed the argu­
ment between Collazo and the other two males, which 
he believed lasted about ten minutes; Diaz witnessed 
the argument from approximately twenty-eight feet 
away (Trial Tr. at 292-93). Diaz testified that after the 
argument, the males walked in separate directions, 
but one of the males with dark skin ran down the 
street. Diaz did not see the shooting, but heard the 
shot (Trial Tr. at 295). Diaz testified that he might be 
able to recognize the men he saw arguing that day, 
but did not identify petitioner in the courtroom (Trial 
Tr. at 295).

Detective Martinez of the 43rd precinct testified 
that he interviewed both Sanchez and Davis the day 
of the shooting, and that while the men were in the 
precinct they were separated from each other so that 
they could not discuss the incident (Trial Tr. at 116). 
Detective Martinez also testified that when Diaz and 
Sanchez viewed a lineup on July 9 that included the 
petitioner, they were not permitted to speak to each 
other and were kept in separate rooms before viewing 
the lineup (Trial Tr. at 110). 2

2. Petitioner’s Defense
Petitioner presented an alibi defense. Specifically, 

petitioner contended that on the day of the shooting 
he was in Deltona, Florida, where he had been resid­
ing since approximately May 26, 1996, and that he 
did not leave Florida until June 29 after he heard



104a

from his family in New York that the police were 
looking for him.

Petitioner presented two alibi witnesses at trial, 
Jenine Seda and John Torres, who traveled from 
Florida to testify that petitioner was living with 
them, and that they both saw him on the day of the 
murder, June 19.

Seda testified that she had known petitioner 
since December of 1995, and that petitioner was 
staying at her house in Deltona from approximately 
the end of April or beginning of May, 1996 until about 
June 30 (Trial Tr. at 307-08, 323). Seda testified that 
while petitioner was living with her and her boy­
friend, John Torres, petitioner and John2, who were 
good friends, spent most of their time together be­
cause neither of them were working (Trial Tr. at 311). 
Seda testified that she knew petitioner was at her 
house on June 19 (Trial Tr. at 312), and that she 
remembers that day because it was the day before her 
son was born (Trial Tr. at 335). Seda also stated that 
she was admitted to the hospital at about 5:00 a.m. 
on June 20 and that petitioner was at her home when 
she returned from the hospital on June 21 (Trial Tr. 
at 328). Seda testified that while traveling from 
Florida to New York for the trial, she and John Torres 
did not discuss either their memories regarding June 2

2 Because this report and recommendation repeatedly 
refers to witnesses with the same surname, I refer to individuals 
with non-unique surnames by their first name.



105a

19 or the fact that they were testifying (Trial Tr. at 
324-25).

John Torres testified that petitioner was living 
with him from about April until June 19, 1996, when 
petitioner went to live with John’s brother, Robert 
Torres, to make room for John and Seda’s new baby 
(Trial Tr. at 344, 360-61). John testified that on June 
19 his car broke down and he spent the day with 
petitioner looking for car parts before returning to 
John’s home (Trial Tr. at 347). John had no receipts or 
other documents to corroborate that his car had 
broken down or that parts were purchased that day 
(Trial Tr. at 349). John testified further that Seda was 
working on June 19. John also stated that in June, 
1996 he was working at a toll plaza five days a week 
(Trial Tr. at 349). John testified that while he and 
Seda were traveling to New York for the trial they 
discussed the fact that they would be testifying and 
what might happen (Trial Tr. at 351).

Petitioner also offered the testimony of the New 
York terminal manager for Greyhound Busline and 
introduced as evidence a “readout of a transaction” 
for the sale of a bus ticket. The “readout” indicated 
that Richard Rosario had purchased tickets to travel 
from Orlando, Florida to New York on June 30, 1996 
(Trial Tr. at 366-69). The manager testified that while 
the “readout” gives the name of the passenger, date of 
purchase, and destinations, Greyhound does not 
routinely require a passenger to submit identification 
upon paying or boarding (Trial Tr. at 371-72).



106a

Petitioner testified in his own defense regarding 
three different time periods when he was in Deltona, 
Florida. The first was a two-week visit in late Decem­
ber, 1995 until early January of 1996, during which 
he met John Torres and Jenine Seda (Trial Tr. at 377- 
80). The second was a visit from February through 
mid-April, 1996 (Trial Tr. at 386-87). The third was 
from late May, 1996 until June 30, 1996. During the 
second and third trips, petitioner had hoped to find 
work, re-locate to Florida, and have his fiance, 
Minerva Godoy, and their children join him in Florida 
(Trial Tr. 399-400). Petitioner stated that both he and 
his friend John Torres were not working in June 1996 
and that during his trip in May and June, Ms. Godoy 
wired money to him via Western Union on at least 
three occasions (Trial Tr. 422-24). Because petitioner 
did not have a valid, government-issued identification 
that was required to receive a money wire transfer, 
Ms. Godoy transmitted the money to John to give to 
petitioner (Trial Tr. at 423). Petitioner testified that 
he lived at John and Seda’s home from the end of May 
until after the baby was born on June 20, when he 
left to stay with his friend Ray so that John and 
Jenine could have more privacy and space (Trial Tr. 
at 409-10). Petitioner recalled that he was with John 
Torres when John’s car broke down and they went 
looking for parts; however, petitioner could not recall 
whether this occurred on June 19 or a different day 
before the baby was born (Trial Tr. at 419). On June 
30, petitioner left Florida and returned to New York 
after his sister told him that detectives were looking



107a

for him in connection with a murder (Trial Tr. at 388- 
89).

During Cross-examination, the prosecutor ques­
tioned petitioner about his February to April, 1996 
visit to Florida. Petitioner testified that he stayed at 
the home of a friend, Shannon Beane, until he left for 
New York on April 13 (Trial Tr. at 394-95).

3. The Prosecution’s Rebuttal Case
The prosecution presented as a rebuttal witness 

Captain Bruce Bolton of Volusia County, Florida, De­
partment of Correction [sic]. Captain Bolton testified 
that he was the records custodian of the Volusia 
County Department of Corrections in Daytona, Flori­
da and that the Department’s records showed that 
petitioner was in custody in Volusia County from 
March 13, 1996 until April 12, 1996.

Before Captain Bolton testified, petitioner’s attor­
ney, Steven Kaiser, objected to the rebuttal evidence 
on the grounds that: <1) petitioner was never directly 
questioned about whether he was incarcerated during 
the period of time at issue and given the opportunity 
to address the issue before the improper introduction 
of extrinsic evidence on a collateral matter and (2) the 
introduction of this “bad act” evidence would result in 
unjust prejudice against petitioner and that petition­
er had never been given the opportunity of seeking a



108a

SandovalJ hearing outside the presence of the jury 
concerning this period of incarceration (Trial Tr. at 
435-37). The Court allowed the testimony, accepting 
the prosecution’s argument that the captain’s testi­
mony was part of disproving petitioner’s alibi defense 
that he was living with the other witnesses in Florida 
(Trial Tr. at 439).

4. Summations

Defense counsel’s summation focused on incon­
sistencies between the descriptions of the shooter 
that the eyewitnesses gave to detectives and in court, 
such as differences regarding the shooter’s approxi­
mate height, facial characteristics, and clothing. 
Defense counsel also stressed the unreliability of 
eyewitness identifications (Trial Tr. at 488-503). 
Counsel pointed out that if petitioner’s alibi witnesses, 
John and Seda, were conspiring to give false testimony 
on petitioner’s behalf, then their testimonies would be 
more, not less, consistent with each other (Trial Tr. at 
474). Defense counsel suggested to the jury that 
petitioner was not dishonest when he testified that 
he stayed with a friend during a time period that 
included his four weeks in the county jail, as it is 
consistent for a person to say they live in one place 
even if they are temporarily incarcerated elsewhere 
during that time (Trial Tr. at 485). 3

3 People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 314 
N.E.2d 413 (1974).



109a

During its summation, the prosecution focused 
on the credibility of the eyewitnesses, Sanchez and 
Davis, while minimizing the inconsistencies in the 
descriptions they gave to detectives after the shooting 
(Trial Tr. at 520-21). With regard to petitioner’s 
witnesses, the prosecutor explained to the jury “that 
the little things about the testimony [are] what you 
have to look at to determine if you can rely on the 
witnesses” (Trial Tr. at 528-29). The prosecution then 
suggested that Jenine Seda and John Torres “are 
interested witnesses, interested because they have 
an interest in the outcome of the case. They don’t 
want to see their friend go to jail” (Trial Tr. at 529). 
Because John and Seda were inconsistent on “little 
things,” such as whether John was working on and 
around June 19, 1996, the prosecution suggested that 
John and Seda were unreliable witnesses (Trial Tr. at 
530). The prosecution argued that John and Seda’s 
inconsistent testimony about whether they discussed 
the trial while traveling to New York also demon­
strated their unreliability (Trial Tr. at 532). The 
prosecution pointed out that John and Seda both 
testified inaccurately that defendant lived with them 
from early April through June (Trial Tr. at 531). 
Moreover, the prosecution noted that the Greyhound 
ticket evidence offered by the defense does not really 
establish anything since Greyhound does not check 
the identification of its passengers (Trial Tr. at 533).

With respect to petitioner’s testimony that he 
lived with Shannon Bean while he was actually incar­
cerated, the prosecution suggested that petitioner’s



110a

responses were untruthful because he did not want 
the jury to know that he was in jail. According to 
the prosecution, this showed that petitioner was 
willing to lie on the stand and mislead the jury (Trial 
TV. at 536).

5. Jury Instructions
The Trial Judge informed the jury that an inter­

ested witness is one who, “by reason of relationship 
[or] friendship” with either a party or a witness, 
might give biased testimony in favor of that person 
and that an interested witness’ testimony may be 
accepted despite, or rejected in light of, that witness’ 
interest in the outcome of the case (Trial Tr. at 
558-559).

The Trial Judge also gave a limiting instruction 
regarding the evidence concerning petitioner’s incar­
ceration in Florida in March and April of 1996. The 
judge told the jury that the evidence of the incarcera­
tion could not be considered as evidence of petitioner’s 
propensity to commit crimes. He did, however, advise 
the jury that it could be considered “in determining 
the credibility of witnesses who have appeared before 
you” (Trial Tr. at 565).

B. Procedural History
1. Petitioner’s Direct Appeal

Petitioner appealed his conviction to the Appel­
late Division of the New York State Supreme Court,



111a

First Department, arguing: (1) the prosecutor’s intro­
duction of extrinsic evidence that petitioner was 
incarcerated during a period that ended over two 
months before the June 19 shooting deprived peti­
tioner of his Fourteenth Amendment Due Process 
right to a fair trial (Brief for Defendant-Appellant 
(“App. Div. Br.”) at 32-46, annexed as Exhibit 1 to 
Affidavit in Opposition to Habeas Corpus Petition 
(“Resp. Op.”) (Docket Item 12)); (2) the prosecutor’s 
use of all six peremptory challenges to strike prospec­
tive African-American jurors established a prima 
facie case of discrimination under Batson, requiring 
the prosecution to offer race-neutral reasons for its 
challenges (App. Div. Br. at 46-53); and (3) the cumu­
lative impact of the prosecutor’s improper tactics 
misled and unfairly influenced the jury in violation of 
petitioner’s Fourteenth Amendment Due Process 
right to a fair trial (App. Div. Br. at 53-63).

The Appellate Division unanimously affirmed 
petitioner’s conviction on November 27, 2001. The 
Appellate Division held that (1) the Trial Court 
properly exercised its discretion in allowing the 
prosecution to introduce rebuttal evidence that peti­
tioner was incarcerated, as it tended to disprove his 
alibi, was not collateral because petitioner made his 
multiple trips to Florida “integral parts of his alibi 
defense,” and had minimal prejudicial effect particu­
larly in light of the Trial Court’s limiting instruction; 
(2) petitioner had failed to establish a prima facie 
case of racial discrimination by the prosecutor’s use 
of peremptory challenges because the mere number



112a

of the prosecution’s peremptory challenges against 
African-American prospective jurors did not establish 
a prima facie case, and petitioner failed to show 
disparate treatment or other relevant circumstances 
raising an inference of discriminatory purpose; and 
(3) petitioner’s challenges to the prosecutor’s question­
ing of witnesses and comments in summation were 
not preserved, and, in any event, did not present a 
basis for reversal. People v. Rosario, 288 A.D.2d 142, 
142-143, 733 N.Y.S.2d 405, 406-407 (1st Dep’t 2001).

The New York State Court of Appeals denied 
petitioner’s leave to appeal on March 26, 2002. 
People v. Rosario, 97 N.Y.2d 760, 769 N.E.2d 367, 742 
N.Y.S.2d 621 (2002).

2. Petitioner’s Motion to Vacate
On June 11, 2003, petitioner filed a motion 

pursuant to New York Criminal Procedure Law 
Section 440.10 to vacate the judgment of conviction, 
arguing that he had been denied effective assistance 
of counsel. The Honorable Edward M. Davidowitz, 
Justice of New York State Supreme Court, Bronx 
County held an evidentiary hearing at which peti­
tioner presented seven of his purported alibi witnesses, 
two of his defense attorneys (Joyce Hartsfield and 
Steven J. Kaiser) and Hartsfield’s investigator on the 
case, Jessie Franklin. In a twenty-two page opinion, 
Justice Davidowitz denied relief, finding that both 
Hartsfield and Kaiser provided petitioner with “mean­
ingful representation” (Decision and Order of the



113a

Honorable Edward M. Davidowitz, Justice of the 
Supreme Court, dated April 4, 2005 (“440 Order”), 
annexed as Exhibit 17 to Resp. Op., at 18).

The Appellate Division denied leave to appeal 
Justice Davidowitz’s decision on September 8, 2005 
(Certificate Denying Leave, annexed as Exhibit 19 to 
Resp. Op.).

Petitioner filed his petition for a writ of habeas 
corpus on September 16, 2005.

C. The Current Petition
As noted above, petitioner asserts four claims: 

(1) that petitioner was denied his Sixth Amendment 
right to effective assistance of counsel based on his 
attorneys’ failure to adequately investigate and to 
present additional witnesses and documentary evi­
dence in support of his alibi defense; (2) that the Trial 
Court erred when it refused to find a prima facie case 
of discrimination under Batson v. Kentucky, supra, 
476 U.S. 79 and when it refused to require the prose­
cution to give race-neutral grounds for using all of its 
peremptory challenges to strike African-American 
prospective jurors; (3) that the Trial Court deprived 
petitioner of his Due Process right to a fair trial by 
erroneously admitting extrinsic evidence that peti­
tioner had been in jail three months before the mur­
der; and (4) that petitioner is actually innocent of the 
crime of which he was convicted (Pet. Mem. at 2-3).



114a

III. Analysis
A. Standard of Review

Where the state court has decided a habeas 
petitioner’s claims on the merits, a habeas petitioner 
must meet a stringent standard before a federal court 
can issue the writ. Specifically, 28 U.S.C. § 2254(d), 
modified by the Antiterrorism and Effective Death 
Penalty Act of 1996 (“AEDPA”), provides that in such 
a situation, habeas relief may be granted only when 
the Trial Court’s decision

(1) resulted in a decision that was contrary 
to, or involved an unreasonable application of, 
clearly established Federal law, as deter­
mined 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.

The Supreme Court has explained the alterna­
tive standards contained in the former paragraph as 
follows:

First, we have explained that a decision 
by a state court is “contrary to” our clearly 
established law if it “applies a rule that 
contradicts the governing law set forth in our 
cases” or if it “confronts a set of facts that are 
materially indistinguishable from a decision 
of this Court and nevertheless arrives at 
a result different from our precedent.” 
Williams v. Taylor, 529 U.S. 362, 405-406,



115a

120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). See 
also Early v. Packer, 537 U.S. 3, 7-8, 123 
S.Ct. 362, 154 L.Ed.2d 263 (2002) (per 
curiam). . . .

Second, [petitioner] can satisfy § 2254(d) 
if he can demonstrate that the [State] 
Court’s decision involved an “unreasonable 
application” of clearly established law. As we 
have explained:

“[A] federal habeas court may not issue 
the writ simply because that court con­
cludes in its independent judgment that 
the state-court decision applied [a Su­
preme Court case] incorrectly. See Bell u. 
Cone, 535 U.S. 685, 698-699, 122 S.Ct. 
1843, 152 L.Ed.2d 914 (2002); Williams, 
supra, at 411, 120 S.Ct. 1495. Rather, it 
is the habeas applicant’s burden to show 
that the state court applied [that case] to 
the facts of his case in an objectively un­
reasonable manner.”

Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 
S.Ct. 357, 154 L.Ed.2d 279 (2002) (per 
curiam).

Price v. Vincent, 538 U.S. 634, 640-41 (2003); accord 
Brown v. Payton, 544 U.S. 133, 139-40 (2005); see also 
Lockyer v. Andrade, 538 U.S. 63, 70-72 (2003); 
Hawkins v. Costello, 460 F.3d 238, 242-43 (2d Cir. 
2006); Brown v. Artuz, 283 F.3d 492, 500-01 (2d Cir. 
2002).



116a

In addition to the definition of “unreasonable 
application” set forth above, a state court may unrea­
sonably apply Supreme Court precedent “if the state 
court unreasonably extends a legal rule established 
by the Supreme Court or if it unreasonably fails to 
extend a legal rule to a context in which the rule 
reasonably should apply.” Serrano v. Fischer, 412 F.3d 
292, 296-97 (2d Cir. 2005), cert, denied, 546 U.S. 1182 
(2006).

“Unreasonableness is determined by an ‘objective’ 
standard.” Gersten v. Senkowski, 426 F.3d 588, 607 
(2d Cir. 2005), cert, denied, 126 S.Ct. 2882 (2006), 
quoting Williams v. Taylor, 529 U.S. 362, 409 (2000). 
In order for a state court’s application of Supreme 
Court precedent to be unreasonable, “[s]ome incre­
ment of incorrectness beyond error” is required. 
Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005), cert, 
denied, 547 U.S. 1040 (2006) (internal quotation 
marks omitted); accord Brown u. Artuz, supra, 283 
F.3d at 500-01; Aparicio v. Artuz, supra, 269 F.3d at 
94. However, “the increment need not be great; oth­
erwise, habeas relief would be limited to state court 
decisions ‘so far off the mark as to suggest judicial 
incompetence.’ ” Francis S. v. Stone, 221 F.3d 100, 111 
(2d Cir. 2000), quoting Matteo v. Superintendent, SCI 
Albion, 171 F.3d 877, 889 (3rd Cir. 1999) (en banc); 
accord Gersten v. Senkowski, supra, 426 F.3d at 607.

The nature of the rule in issue also impacts the 
assessment of the reasonableness of the state court’s 
action.



117a

[WJhile very specific rules may not permit 
much leeway in their interpretation, the 
same is not true of more general rules, the 
meaning of which “must emerge in applica­
tion over the course of time.” [Yarborough v. 
Alvarado, 541 U.S. 652, 664 (2004)]. “The 
more general the rule, the more leeway 
courts have in reaching outcomes in case by 
case determinations.” Id.

Serrano v. Fischer, supra, 412 F.3d at 297; see also 
Hawkins v. Costello, supra, 460 F.3d at 243.

Both the “contrary to” and “unreasonable appli­
cation” clauses “restrict[] the source of clearly estab­
lished law to [the Supreme] Court’s jurisprudence.” 
Williams v. Taylor, supra, 529 U.S. at 412. “That 
federal law, as defined by the Supreme Court, may 
either be a generalized standard enunciated in the 
[Supreme] Court’s case law or a bright-line rule 
designed to effectuate such a standard in a particular 
context.” Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 
2002). “A petitioner can not win habeas relief solely 
by demonstrating that the state court unreasonably 
applied Second Circuit precedent.” Yung v. Walker, 
341 F.3d 104, 110 (2d Cir. 2003); accord DelValle v. 
Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002).

In order to be entitled to the deferential standard 
of review under subsection 2254(d), the state courts 
must have resolved the petitioner’s claims “on the 
merits.” Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 
1993); see e.g. Ryan v. Miller, 303 F.3d 231, 245 (2d 
Cir. 2001) (“[I]n order for this deferential standard of



118a

§ 2254 to apply, we must first determine that the 
state court considered [petitioner’s claim] on its 
merits”); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d 
Cir. 2001).

For habeas purposes, a state court is deemed to 
have reached the merits of a federal claim when the 
state court’s decision “fairly appear[s] to rest primarily 
on federal law or to be interwoven with federal law,” 
unless there is a “clear and express statement of 
reliance on a state procedural bar.” Jimenez v. Walker, 
458 F.3d 130, 145 (2d Cir. 2006); see Coleman v. 
Thompson, supra, 501 U.S. 722, 739-40 (1991). Habeas 
courts in this circuit examine “the face of the state- 
court opinion, . . . whether the state court was aware 
of a procedural bar, and . . . the practice of state 
courts in similar circumstances” to determine whether 
a state court decision falls into one of the above 
classifications. Jimenez v. Walker, supra, 458 F.3d at 
145 n.16.

I shall address the nature of the state court’s 
disposition of each of petitioner’s claims in connection 
with my discussion of each of the claims.

B. Petitioner’s Claims
1. Ineffective Assistance of Counsel

Petitioner claims that he did not receive effective 
assistance of counsel based on counsel’s failure to 
investigate petitioner’s alibi defense adequately and 
to produce additional witnesses and documentary



119a

evidence that would have supported petitioner’s alibi 
(Pet. Mem. at 18).

Petitioner was represented by at least four 
defense attorneys after his arrest. The representation 
provided by petitioner’s first two attorneys, one of 
whom represented petitioner at arraignment, the 
other at petitioner’s lineup, is not at issue. Petition­
er’s third attorney, Joyce Hartsfield, represented 
petitioner from about mid-July, 1996 until mid- 
February of 1998 (Hrg. Tr.4 at 14). Steven J. Kaiser 
represented petitioner after Hartsfield and through 
his trial (Hrg. Tr. at 117). Petitioner claims that 
Hartsfield and Kaiser’s representation was ineffec­
tive.

Petitioner asserts that he had always maintained 
that he was in Florida on the date of the murder. 
Immediately after turning himself in, petitioner 
wrote a statement for the police describing various 
events in Florida, providing the names of at least 
eleven potential alibi witnesses and identifying poten­
tial documentary evidence that he believed would 
establish his presence in Florida at the time of the 
murder (Pet. Mem. at 18; Petitioner’s Post-Arrest 
Statement (“Post-Arrest Stmnt.”), annexed as Exhibit 
10 to the Declaration of Jodi K. Miller (“Miller 
Decl.”)). In his statement, petitioner claimed that he 
went to Florida on a Greyhound bus around the end

4 “Hrg. Tr.” refers to the transcript of the hearing held in 
connection with petitioner’s 440.10 motion.



120a

of May and did not leave Florida until June 29, 1996. 
Petitioner claimed that several individuals in Florida 
could attest to his presence there, including John 
Torres’ mother, Margarita Torres, and his father, 
Fernando Torres, as well as John Torres, Jenine Seda, 
Robert Torres, David Guzman, Nereida Colon, “Ray 
MH,” “Mike,” “Gordo,” and “Hector.”0 Petitioner had 
addresses for most of these individuals but not tele­
phone numbers. Petitioner also reported in his post­
arrest statement that during June, he and Gordo 
went to a bail bondsman to bail out their friend 
Michael. Petitioner also noted in his post-arrest 
statement that he had been incarcerated during a 
previous trip to Florida, but that he had been re­
leased from jail on April 12, 1996 (Post-Arrest 
Stmnt.).

While Hartsfield was representing petitioner, she 
moved for funds to investigate petitioner’s alibi 
defense in Florida, and the Trial Court granted that 
motion during a hearing in the presence of Hartsfield 
and petitioner (Calendar Call Transcript, dated 
March 19, 1997, annexed as Exhibit 29 to Miller 
Decl.). Nevertheless, for unknown reasons, many of 
those alibi witnesses were never contacted by detec­
tives, prosecutors, investigators, or petitioner’s attor­
neys until petitioner’s appellate counsel found them 
in Florida after petitioner was convicted of Collazo’s 
murder.

The record does not reveal the full names of “Ray MH,” 
“Mike,” “Gordo,” or “Hector.”



121a

a. Petitioner’s 440 Hearing
Because petitioner’s claim of ineffective assis­

tance raised factual issues that were outside the 
record of his trial, he properly asserted and exhaust­
ed the claim by way of a motion to vacate pursuant to 
New York Criminal Procedure Law Section 440.10. 
Arce v. Smith, 889 F.2d 1271, 1272 (2d Cir. 1989) 
(ineffective assistance claim normally raised by col­
lateral proceeding since its resolution “often requires 
evidence not contained in the record”); Washington v. 
Greiger, 00 Civ. 2383 (RWS), 2001 WL 214236 at *3 
(S.D.N.Y. Mar. 1, 2001) (same); Otero v. Stinson, 51 F. 
Supp.2d 415, 418-419 (S.D.N.Y. 1999) (same); Garcia 
v. Scully, 907 F. Supp. 700, 706 (S.D.N.Y. 1995) 
(same); People v. Brown, 45 N.Y.2d 852, 382 N.E.2d 
1149, 410 N.Y.S.2d 287 (1978). Pursuant to peti­
tioner’s motion, the Trial Court conducted an evi­
dentiary hearing at which evidence was offered 
establishing the following facts.

Hartsfield testified that she made no efforts to 
obtain any documentary evidence in support of peti­
tioner’s alibi (Hrg. Tr. at 32). Though Hartsfield was 
aware that petitioner claimed he bailed a friend out 
of jail in Florida in June of 1996, she did not make 
any efforts to contact the bail bondsman identified by 
petitioner (Hrg. Tr. at 27-28). Hartsfield also admit­
ted that although petitioner had told her that his 
fiance had wired money to him in Florida in June 
of 1996, Hartsfield did not contact Western Union to



122a

obtain records of those transactions (Hrg. Tr. at 28).6 
Petitioner also told Hartsfield that his fiance had 
called petitioner in Florida at a public pay phone, yet 
Hartsfield made no effort to obtain toll records of 
those calls (Hrg. Tr. at 30). Petitioner’s counsel ques­
tioned Hartsfield about a police “field contact report” 
that noted that petitioner had been stopped by the 
police in Deltona, Florida on May 30, 1996, but Harts­
field could not recall whether petitioner had told her 
about that event (Hrg. Tr. at 30-31).

Petitioner had told Hartsfield that he knew 
several people who could corroborate that he was in 
Florida on the day of the murder (Hrg. Tr. at 14). 
In response to this information, Hartsfield hired an 
investigator, Jessie Franklin, to assist her in finding 
and interviewing petitioner’s potential alibi witnesses 
(Hrg. Tr. at 43). Hartsfield and Franklin initially 
decided that they would focus their investigation on 
the couple with whom petitioner had lived during 
June, 1996, John Torres and Jenine Seda, because it 
appeared they were in the best position to confirm 
petitioner’s presence in Florida on the day of the 
murder, June 19 (Hrg. Tr. at 88). Hartsfield did not 
know whether other witnesses could also provide an

Petitioner’s post-conviction counsel attempted to obtain 
these records from Western Union in June, 2004, but Western 
Union responded that it only maintained these records for 60 
months, i.e. until June, 2001 (June 17, 2004 letter from Stacy C. 
Anderson of Western Union to Morrison & Foerster, LLP in 
response to subpoena, annexed as Exhibit 53 to Miller Decl.).



123a

alibi for June 19 (Hrg. TV. at 107). On October 25, 
1996, Franklin spoke by telephone with John Torres’s 
father, Fernando Torres, and his brother, Robert 
Torres, but was unable to locate John Torres at that 
time (Jessie Franklin Activity Log, annexed as Exhibit 
17 to Miller Deck).

On October 29, 1996, after Franklin was unsuc­
cessful in her attempts to contact John Torres, Jenine 
Seda, and several other potential witnesses, Harts- 
field filed an omnibus motion on behalf of petitioner 
requesting, inter alia, court authorization to send an 
investigator to Florida to find credible alibi witnesses 
(Hrg. TV. at 43). The motion was accompanied by an 
affidavit signed by Franklin, stating that she had 
only been able to speak with two potential alibi 
witnesses, that her attempts to contact other wit­
nesses who had moved or who did not have access to 
a telephone had been unsuccessful, and that she 
needed to travel to Florida to conduct an effective 
investigation concerning petitioner’s defense (Affi­
davit of Jessie Franklin, sworn to Oct. 29, 1996 
(“Franklin Af.”) attached to Notice of Omnibus Mo­
tion, annexed as Exhibit 25 to Miller Deck). During a 
hearing on March 19, 1997, the Honorable Joseph 
Fisch, Justice of New York State Supreme Court, 
Bronx County, granted Hartsfield’s request to send 
Franklin to Florida (Hrg. TV. at 48). Hartsfield, how­
ever, did not recall whether the request had been 
granted until she reviewed the transcript of the 
March 19, 1997 proceeding in preparation for the 
440.10 hearing (Hrg. TV. at 50).



124a

On September 22, 1997, several months after 
Justice Fisch granted Hartsfield’s request to send 
an investigator to Florida, Franklin finally located 
and interviewed John Torres and Jenine Seda in 
Pennsylvania, where the two were then residing 
(Hrg. TV. at 91).

Hartsfield never sent Franklin to Florida and 
was unable to explain why, although she believed 
there could have been logistical reasons (Hrg. TV. at 
50). Hartsfield also testified that if she had realized 
the motion had been granted, then she would have 
sent Franklin to Florida, suggesting that she had 
been unaware of the outcome of her omnibus motion 
in 1997 (Hrg. TV. at 51). She testified that she did not 
make a conscious strategic decision to limit potential 
alibi witnesses to Jenine Seda and John Torres (Hrg. 
Tr. at 73). Rather, Hartsfield acknowledged the suc­
cess of an alibi defense turned on the credibility of the 
witnesses and that an incredible alibi witness could 
jeopardize the defense (Hrg. IV. at 95).

Kaiser represented petitioner from February 18, 
1998 through pre-trial hearings and his trial (Hrg. Tr. 
at 117). Immediately before petitioner’s 440.10 hear­
ing, Kaiser submitted an affirmation, in which he 
stated that when he took petitioner’s defense, Harts­
field had told him that the Court “had specifically 
denied her request to send the assigned investigator 
to Florida to follow-up on initial alibi evidence al­
ready adduced” (Affirmation of Steven Kaiser, dated 
Dec. 31, 2003, annexed as Exhibit 50 to Miller Decl. 
(“Dec. 31, 2003 Kaiser Affirm.”)). Hartsfield’s [sic]



125a

then submitted an affirmation, stating that after she 
reviewed the transcript of the March 19, 1997 hear­
ing before Justice Fisch, she recalled that the justice 
had granted expenses for a Florida investigation; she 
did not recall telling Kaiser that the judge had denied 
the expenses (Affirmation of Joyce Hartsfield, dated 
Jan. 29, 2004, annexed as Exhibit 51 to Miller Decl.). 
On February 7, 2004 Kaiser submitted another affir­
mation, stating that on January 30, 2004 he received 
and read Hartsfield’s affirmation and the minutes of 
the March 19, 1997 hearing before Justice Fisch, and 
Kaiser retracted his prior statement that Hartsfield 
had told him her request to send an investigator to 
Florida had been denied (Affirmation of Steven 
Kaiser, dated Feb. 7, 2004, annexed as Exhibit 52 to 
Miller Decl. (“Feb. 7, 2004 Kaiser Affirm.”)). Kaiser 
asserted in this second affirmation that he did the 
best he could under the mistaken belief that the 
request for investigative expenses had been denied, 
that he used mail and telephone to try to establish 
contact with witnesses in Florida, and that he made 
arrangements for the known alibi witnesses to be 
able to travel to New York to testify (Feb. 7, 2004 
Kaiser Affirm.).

Kaiser testified that he is not certain who he 
spoke with in Florida other than John Torres and 
Jenine Seda, but he believed he spoke to John’s 
father, Fernando Torres, his wife, Margarita Torres, 
and “contemporaries of Torres and Seda” (Hrg. Tr. at 
124-25). These individuals told Kaiser that they could 
not afford to travel to New York. Kaiser suspected



126a

that lack of finances was being used as an excuse by 
people “not as eager to help Mr. Rosario when [Kai­
ser] was dealing with them as they might have been 
when Mr. Barry, the investigator for Legal Aid Society 
was with them in their home . . . not necessarily 
because they weren’t going to be truthful. But just 
that they weren’t that thrilled about the prospect of 
having to leave whatever they were doing and come 
up and it was more than just the money” (Hrg. Tr. at 
194-95). Because Kaiser believed the court had 
denied funding to send an investigator to Florida, he 
testified that he also believed funding for witnesses to 
travel to New York would likewise be denied. Kaiser 
did not, therefore, request such funds or advise any 
potential witnesses that such costs could be reim­
bursed (Hrg. Tr. at 128).

Kaiser testified that while preparing petitioner’s 
trial, he (Kaiser) believed John Torres and Jenine 
Seda were the best witnesses because they could 
establish the date of petitioner’s presence in Florida 
by virtue of their son’s birth on June 20 and because 
they had no prior convictions that the prosecution 
might use to impeach them (Hrg. Tr. at 196, 221, 
225). Kaiser believed that other potential witnesses 
with whom he spoke would have only provided simi­
lar testimony and were not as cooperative (Hrg. Tr. at 
195). Kaiser also admitted, however, that he would 
have preferred to have had more alibi witnesses, 
especially ones who did not live with petitioner (Hrg. 
Tr. at 196-99).



127a

Jessie Franklin testified that she was hired by 
Hartsfield to investigate petitioner’s alibi defense. 
According to Franklin’s notes, she met with petitioner 
on September 23, 1996 at Rikers Island, and petitioner 
gave Franklin addresses for John Torres, Robert 
Torres and his wife Chenoa, Ricardo Ruiz, and Nerida 
Colon. He also gave Franklin a telephone number 
where he believed another potential witness, Denise 
Hernandez, could be reached (Jessie Franklin’s notes, 
dated Sept. 23, 1996, annexed as Exhibit 19 to Miller 
Deck).

Franklin also testified that prior to drafting an 
affidavit in support of the motion for funding to 
investigate in Florida, she was only able to reach two 
of petitioner’s potential alibi witnesses, Fernando and 
Robert Torres, with whom she spoke for a total of 
approximately one hour (Hrg. Tr. at 384-85, 403-04). 
Franklin’s notes indicate that on October 25, 1996, 
Fernando told her that “in the latter part of June” he, 
his son John and petitioner had looked for car parts 
and that petitioner had contributed thirty dollars 
toward the purchase of the parts because he had been 
using the car and was going to New York (Hrg. Tr. at 
391-92, 438). Franklin testified that, according to her 
notes, Fernando did not specifically tell her that he 
saw petitioner on June 19, and she had not asked 
Fernando about his arrest history as she normally 
would have if a potential witness were cooperative 
(Hrg. Tr. at 437-38). Franklin’s October 25 notes also 
indicate that Robert Torres had reported to her that 
petitioner left John’s home after the baby was born on



128a

June 20 and then stayed with David Guzman (Jessie 
Franklin’s notes, dated Oct. 25, 1996, annexed as 
Exhibit 21 to Miller Deck). Franklin did not contact 
Fernando or Robert again and assumed the request 
for funding for her to investigate in Florida had been 
denied because she never heard otherwise from 
Hartsfield (Hrg. Tr. at 404, 407).

Franklin re-opened her investigation into peti­
tioner’s case in September, 1997 and interviewed 
Jenine Seda and John Torres (Hrg. Tr. at 411). John 
Torres informed Franklin that he could provide a list 
of names of other alibi witnesses in Florida (Hrg. Tr. 
at 413). Franklin also attempted at that time to 
contact a number of other individuals named by 
petitioner, but was unsuccessful (Hrg. Tr. at 416-17). 
When Franklin spoke with Seda and John Torres, she 
did not make any determinations as to whether they 
would be the best witnesses for petitioner. Rather, 
John and Seda were the ones Franklin could contact 
at that time, and Franklin still considered it neces­
sary to investigate petitioner’s alibi further (Hrg. Tr. 
at 418-20, 433). After Kaiser took petitioner’s case, 
Kaiser never contacted Franklin to discuss witnesses 
or to follow up on what she learned in her investiga­
tion (Hrg. Tr. at 422).

Fernando Torres testified he remembered spend­
ing June 19 with petitioner and his son, John Torres, 
after John’s car broke down and the three of them 
looked for car parts. Fernando did not know until 
several years later that the crime for which petitioner 
was arrested had occurred on June 19 (Hrg. Tr. at



129a

318, 364, 372, 374).7 Fernando’s written statement, 
which was also submitted as evidence in support of 
the motion to vacate, asserts that he knew petitioner 
was in Florida on June 19 because he saw petitioner 
in John’s apartment; the statement does not mention 
that Fernando spent time that day with petitioner 
looking for car parts (Statement of Fernando Torres, 
signed Nov. 9, 2002, annexed as Exhibit 56 to Miller 
Deck). Fernando could not recall being contacted by a 
lawyer or an investigator regarding petitioner until 
2004, although he testified that Jessie Franklin’s 
name sounded familiar to him (Hrg. Tr. at 329, 332- 
33). Fernando testified that petitioner’s sisters had to 
pay for John and Seda to travel to New York to testify, 
and that the sisters had told him petitioner’s attorney 
suggested John’s testimony would be sufficient (Hrg. 
Tr. at 332-33). Fernando testified that he would have 
come to New York to testify at petitioner’s trial if he 
had been asked to and been provided with money to 
cover travel expenses (Hrg. Tr. at 333-34).

Ricardo Ruiz testified that he saw petitioner 
about five times a week during the month of June, 
1996, and that he saw petitioner several days after 
John Torres’ baby was born (Hrg. Tr. at 463, 488).

7 During Fernando’s cross-examination at the 440 hearing, 
respondent’s counsel reported that Fernando had informed 
petitioner’s counsel, Jodi Miller, that he, petitioner and John 
looked for car parts three or four days before John’s baby was 
born. Petitioner’s counsel agreed to submit a stipulation regard­
ing this, but no such stipulation has been included in petitioner’s 
habeas submissions (Hrg. Tr. at 344).



130a

Ricardo could not recall whether or not he saw peti­
tioner on June 19 (Hrg. Tr. at 476), but he believed 
petitioner had been in Florida since the winter of 
1995-96 except for a brief period after his release 
from jail in April (Hrg. Tr. at 479).

Chenoa Ruiz lived next door to John Torres and 
Jenine Seda while petitioner was staying with them 
in June, 1996 (Hrg. Tr. at 497). Chenoa testified that 
she did not like petitioner because John was “hanging 
out” with petitioner instead of properly attending to 
Seda during her pregnancy (Hrg. Tr. at 503). Chenoa 
testified that on the night of June 18, 1996, when she 
took Seda to the hospital, she saw petitioner with 
John and some of their friends at John and Seda’s 
home (Hrg. Tr. at 500, 547). Chenoa also testified that 
she saw petitioner at John and Seda’s home on June 
19, both at about 11:30 a.m. when she picked up Seda 
for a doctor’s appointment, and again several hours 
later when she brought Seda back (Hrg. Tr. at 548, 
550). Petitioner’s presence at John and Seda’s home 
on these days stuck in Chenoa’s mind because, in her 
words, petitioner was like a “spotlight” and caused 
problems for her and Seda by staying out late with 
their boyfriends (Hrg. Tr. at 527). Chenoa could not 
recall whether petitioner went to New York after he 
got out of jail in April, 1996. Chenoa also did not 
know when petitioner left Florida after Seda gave 
birth (Hrg. Tr. at 530-31). Chenoa testified that 
petitioner’s appellate counsel was the first person to 
contact her about petitioner's case iHrg. Tr. at 509),



131a

and that she would have testified at petitioner’s trial 
had she been asked to (Hrg. Tr. at 510).

Minerva Godoy is the mother of petitioner’s 
children and was his fiance at the time of his arrest 
(Hrg. Tr. at 566). Godoy testified that petitioner left 
New York in May, 1996 intending to relocate in Florida 
(Hrg. Tr. at 568). Godoy sent money to petitioner 
using Western Union in June 1996, but that money 
had to be sent to John Torres because petitioner did 
not have proper identification to receive a money 
transfer (Hrg. Tr. at 570-72). Godoy testified that she 
informed petitioner’s “female attorney” of the money 
transfer and that she telephoned petitioner in Florida 
on multiple occasions in June, 1996 (Hrg. Tr. at 580). 
Godoy recalled that petitioner called her the day after 
John and Seda’s baby was born and told her that he 
was going to see their baby (Hrg. Tr. at 618).

Denise Hernandez testified that she and peti­
tioner dated in Florida from about February, 1996 
until some time in June of 1996, and that during that 
time she saw petitioner approximately four times per 
week (Hrg. Tr. at 627-28). Hernandez could not attest 
to petitioner’s whereabouts on June 19, 1996 or the 
days immediately before or after that day. All Her­
nandez could recall was that she and petitioner had 
an argument in Florida in mid to late June because 
petitioner had taken her car without permission 
(Hrg. Tr. at 628). Hernandez believed the argument 
occurred close to the day of the shooting because 
her sister’s birthday present was in the car when



132a

petitioner took it, and her sister’s birthday is June 26 
(Hrg. Tr. at 629). Hernandez testified that she broke 
up with petitioner, in Florida, about two weeks before 
he left for New York (Hrg. Tr. at 629).

Lisette Rivera is a friend of Denise Hernandez 
who testified that she was present when petitioner 
took Hernandez’s car in approximately June, 1996 
(Hrg. Tr. at 672). Rivera believed the incident 
occurred about five days before Hernandez’s sister’s 
birthday; however, she also testified that she believed 
the sister’s birthday was in mid-June rather than late 
June (Hrg. Tr. at 673). Before Rivera learned the date 
of the shooting for which petitioner was convicted, 
she submitted an affidavit that she saw petitioner 
regularly in Florida between June and November of 
1996 (Hrg. TV. at 698).

Both Hernandez and Rivera admitted that they 
had been in touch with petitioner since his conviction 
and had written and visited with him at least twice 
(Hrg. Tr. at 633, 677).

Michael Serrano testified that he was a good 
friend of John Torres’ brother, Robert, and knew 
petitioner while he was staying with John Torres in 
June, 1996 (Hrg. Tr. at 718). Though Serrano could 
not recall the date that Jenine and John’s baby was 
born, he remembered that he was with petitioner, 
Robert Torres and Ricardo Ruiz outside Jenine and 
John’s home when John returned from the hospital on 
the day of the child’s birth (Hrg. Tr. at 719, 732). 
Serrano testified he was never contacted by anyone



133a

regarding petitioner’s case until an investigator 
reached him in 2002. Serrano also stated that he 
would have testified at petitioner’s trial had he been 
asked (Hrg. Tr. at 722-24).

After hearing all the foregoing testimony and 
considering additional written submissions, Justice 
Davidowitz denied petitioner’s motion to vacate, 
holding that Hartsfield and Kaiser provided petition­
er with “meaningful representation” as required by 
People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d 584, 
674 N.Y.S.2d 629 (1998). This standard for ineffec­
tiveness is “ultimately concerned with the fairness of 
the process as a whole . . . ” (440 Order at 15, 22). 
Justice Davidowitz found that although both Harts- 
field and Kaiser were mistaken regarding whether 
Justice Fisch had granted funding to investigate in 
Florida, that mistake “was not deliberate” and “does 
not alter the fact that both attorneys represented 
defendant skillfully, and with integrity . . . ” (440 
Order at 18). Justice Davidowitz concluded that 
Kaiser presented a credible alibi defense to the jury 
and a number of the witnesses who testified at the 
post-conviction hearing would not have strengthened 
the alibi defense (440 Order at 17-19). Justice 
Davidowitz also held that trial counsel’s performance 
should not upset the jury’s verdict, as the verdict was 
“amply supported by the evidence” (440 Order at 19- 
22).

In addition, Justice Davidowitz found that the 
testimony of the alibi witnesses petitioner presented 
at his hearing was not “newly discovered evidence”



134a

because: (1) petitioner knew who the witnesses were 
and gave their names to police at the time of his 
arrest; (2) the substance of the alibi witness’ testimony 
was known before trial and (3) counsel had made 
efforts to speak to the witnesses prior to petitioner’s 
trial. Moreover, Justice Davidowitz found that the 
testimony of these witnesses would have been merely 
cumulative of the testimony of the alibi witnesses 
presented at petitioner’s trial (440 Order at 19-20).

Justive [sic] Davidowitz’s decision constitutes a 
ruling on the merits of petitioner’s ineffective assis­
tance claim and is, therefore, entitled to the AEDPA’s 
deferential standard or [sic] review. “An ‘adjudication 
on the merits’ is one that ‘(1) disposes of the claim on 
the merits, and (2) reduces its disposition to judg­
ment.’ ” Bell v. Miller, 500 F.3d 149, 155 (2d Cir. 2007), 
quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 
2001). Justice Davidowitz expressly found that peti­
tioner had received “meaningful representation” (440 
Order at 18). The use of this language, along with the 
absence of any suggestion in Justice Davidowitz’s 
decision of a procedural basis for the ruling, con­
stitutes an adjudication of the merits of petitioner’s 
federal ineffective assistance claim, sufficient to 
entitle Justice Davidowitz’s decision to the AEDPA’a 
[sic] deferential standard of review. Gersten v. Sen- 
kowski, 426 F.3d 588, 698, 606 (2d Cir. 2005); 
Eze v. Senkowski, 321 F.3d 110, 123-24 (2d Cir. 2003); 
Loliscio v. Goord, 263 F.3d 178, 193 (2d Cir. 2001);



135a

Acensio [sic] v. McKinney, 05-CV-1026 (NGG), 2007 
WL 2116253 at *14 & n.19 (E.D.N.Y. July 20, 2007).8

b. Failure to Investigate and Present 
Additional Alibi Evidence as Ineffec­
tive Assistance of Counsel

In order to prevail on a claim of ineffective assis­
tance of trial counsel, the petitioner here must show 
that the State Supreme Court unreasonably applied 
the now familiar two-part test set forth in Strickland 
v. Washington, 466 U.S. 668, 686-87 (1984):

The benchmark for judging any claim of 
ineffectiveness must be whether counsel’s 
conduct so undermined the proper function­
ing of the adversarial process that the trial 
cannot be relied on as having produced a just 
result.

8 As discussed in Henry v. Poole, 408 F.3d 48, 68-72 (2d Cir. 
2005) and in Acensio [sic] v. McKinney, supra, 2007 WL 2116353 
at *14, the Court of Appeals for the Second Circuit has ex­
pressed some doubt as to whether a finding of “meaningful 
representation” will always constitue [sic] a finding that federal 
Sixth Amendment standards have been met. However, it ap­
pears to be the law in this Circuit that a state court’s finding of 
“meaningful representation,” where the state court was aware of 
a defendant’s federal claim and the federal standard, constitutes 
an adjudication on the merits of a Sixth Amendment ineffective 
assistance claim. See Eze v. Senkowski, supra, 321 F.3d at 121- 
22 .



136a

A convicted defendant’s claim that coun­
sel’s assistance was so defective as to require 
reversal of a conviction . . . has two compo­
nents. First, the defendant must show that 
counsel’s performance was deficient. This re­
quires showing that counsel made errors so 
serious that counsel was not functioning as 
“counsel” guaranteed by the Sixth Amend­
ment. Second, the defendant must show that 
the deficient performance prejudiced the de­
fense. This requires showing that counsel’s 
errors were so serious as to deprive the de­
fendant of a fair trial, a trial whose result is 
reliable. Unless a defendant makes both 
showings, it cannot be said that the convic­
tion . . . resulted from a breakdown in the 
adversary process that renders the result 
unreliable.

Accord Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 
2006), cert, denied, 127 S.Ct. 1383 (2007); Davis v. 
Greiner, 428 F.3d 81, 87 (2d Cir. 2005); Greiner v. 
Wells, 417 F.3d 305, 319 (2d Cir. 2005), cert, denied, 
126 S.Ct. 1363 (2006); Aeid v. Bennett, 296 F.3d 58, 
62-63 (2d Cir. 2002); Hernandez v. United States, 202 
F.3d 486, 488 (2d Cir. 2000); Guerrero v. United 
States, 186 F.3d 275, 281-82 (2d Cir. 1999); McKee v. 
United States, 167 F.3d 103, 106-07 (2d Cir. 1999); 
Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998).

In determining whether counsel’s performance 
was objectively deficient, courts “must indulge a 
strong presumption that counsel’s conduct falls 
within the wide range of reasonable professional



137a

assistance; that is, the [petitioner] must overcome the 
presumption that, under the circumstances, the 
challenged action might be considered sound trial 
strategy.” Strickland v. Washington, supra, 466 U.S. 
at 689 (internal quotation marks omitted).

The second prong of the test -  actual prejudice — 
requires the petitioner to show that, but for trial 
counsel’s errors, there is a “reasonable probability” 
that the result of the trial would have been different. 
“A reasonable probability is a probability sufficient to 
undermine confidence in the outcome.” Strickland v. 
Washington, supra, 466 U.S. at 694. Because the test 
is conjunctive, a habeas petitioner’s failure to satisfy 
either prong requires that the challenge to the convic­
tion be rejected. Strickland v. Washington, supra, 466 
U.S. at 697.

Petitioner claims that but for his trial counsel’s 
failure to adequately investigate and present his alibi 
defense there is a reasonable probability that the jury 
would not have found him guilty of Collazo’s murder 
and that Justice Davidowitz’s decision denying peti­
tioner’s ineffective assistance of counsel claims was 
both contrary to, and an unreasonable application of, 
clearly established federal law. I agree with petitioner 
that under the Strickland two-part test, petitioner’s 
counsel performed below constitutionally reasonable 
standards, and counsel’s deficient performance 
caused petitioner to suffer prejudice at his trial. 
However, applying AEDPA’s “objective” standard 
articulated by the Supreme Court in Williams v. 
Taylor, supra, 529 U.S. at 412, I find that the State



138a

Court’s decision denying petitioner’s motion to vacate 
was neither an unreasonable application of, nor 
contrary to, clearly established federal law. Thus 
petitioner’s claim for habeas corpus relief based on 
ineffective assistance of trial counsel should be denied 
because it fails to reach the threshold for relief re­
quired by the AEDPA.

c. The Strickland Standard and the 
Merits of Petitioner’s Claim
i. Deficient Performance

Defense counsel “has a duty to make reasonable 
investigations or to make a reasonable decision that 
makes particular investigations unnecessary.” Strick­
land v. Washington, supra, 466 U.S. at 690-91. Coun­
sel’s duty to investigate “includes the obligation to 
investigate all witnesses who may have information 
concerning [the defendant’s] guilt or innocence.” 
Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005).

After successfully contacting only Robert and 
Fernando Torres, Hartsfield believed that it was 
necessary to send an investigator to Florida in order 
to prepare petitioner’s alibi defense adequately. 
Hartsfield drafted Franklin’s affidavit in which 
Franklin described her difficulties contacting wit­
nesses who had moved or who did not have tele­
phones. Hartsfield also recalled that it was important 
for Franklin to go to Florida to have “face-to-face 
conversation^]” with Robert and Fernando Torres, to 
obtain additional leads for witnesses, and to establish



139a

petitioner’s exact movements (Hrg. TV. at 44-45). Yet, 
the only explanation Hartsfield could offer for not 
sending Franklin to Florida was that funding would 
have been difficult to arrange (Hrg. Tr. at 50-52). 
Even though Franklin eventually located two key 
alibi witnesses, John Torres and Jenine Seda, Harts­
field admitted that she made no conscious strategic 
choice to limit the alibi witnesses to John and Seda 
(Hrg. Tr. at 73). Hartsfield had also been informed, 
either through her investigator or petitioner’s post­
arrest statement, of several possible items of docu­
mentary evidence that tended to support petitioner’s 
alibi, yet she made no efforts to obtain any of them 
(Hrg. Tr. at 32).

Kaiser’s performance was also lackluster. Kaiser 
never contacted Franklin to discuss her investigation 
(Hrg. Tr. at 422). Kaiser never reviewed the record to 
determine if Hartsfield’s motion for funding to send 
an investigator to Florida had been granted. Kaiser 
never conducted an investigation in Florida due to his 
mistaken belief that Hartsfield’s motion for funding 
had been denied. Rather, Kaiser worked “as best he 
could” from New York to secure petitioner’s witnesses 
(Dec. 31, 2003 Kaiser Affirm.).

A failure to investigate that is a result of inatten­
tion rather than strategic judgment is unreasonable 
conduct for defense counsel. Wiggins v. Smith, 539 
U.S. 510, 526 (2003). “Strategic choices made after 
less than complete investigation are reasonable 
precisely to the extent that reasonable professional 
judgments support the limitations on investigation.”



140a

Strickland v. Washington, supra, 466 U.S. at 690-91. 
At the time Justice Fisch granted Hartsfield’s re­
quests for funds for a Florida investigation, Franklin 
had the full names of at least eleven potential alibi 
witnesses that petitioner believed would still be [sic] 
Deltona, Florida. Franklin had acquired addresses for 
at least five of these individuals, whom she had been 
unable to reach by telephone. These include Chenoa 
Ruiz, Ricardo Ruiz, Nerida Colon, John Torres and 
Jenine Seda (Post-Arrest Stmnt.; Jessie Franklin’s 
notes, dated Sept. 23, 1996, annexed as Exhibit 19 to 
Miller Deck). Within three days of his arrival in 
Florida, the investigator working for petitioner’s post­
conviction counsel was able to locate and interview 
several of the named but uncalled alibi witnesses 
whom trial counsel never interviewed, namely Chen­
oa Ruiz, Margarita Torres and Jeremy David Guzman 
(Affidavit of Joseph Barry, sworn to June 4, 2003, 
annexed to motion for an order pursuant to N.Y. 
Crim. Proc. L. § 440.10 vacating judgment, annexed 
as Exhibit 5 to Resp. Op.). The investigator also 
interviewed Fernando Torres, with whom Franklin, 
and possibly Kaiser, had only spoken by telephone. 
Thus, it appears that if Kaiser or Hartsfield had 
initiated an investigation in Florida, they would have 
been able to meet Fernando in person, as well as 
locate and interview Chenoa Ruiz, both of whom 
testified at petitioner’s 440 hearing that they saw 
petitioner in Florida on June 19 and would have 
testified at petitioner’s trial.



141a

In this case, counsels’ failure to locate and inter­
view the potential witnesses whom petitioner had 
identified concerning a viable defense cannot be 
deemed strategic; it was only by contacting the wit­
nesses that counsel could determine whether they 
could help petitioner’s case or lead counsel to addi­
tional defense witnesses or evidence. See Garcia v. 
Portuondo, 459 F. Supp.2d 267, 287-89 (S.D.N.Y. 
2006). Thus, Hartsfield and Kaiser’s failure to con­
duct an investigation that would have uncovered 
additional alibi witnesses, including Chenoa Ruiz, 
and/or other evidence, of whose existence counsel had 
already been informed, was constitutionally deficient 
performance.

Assuming Kaiser knew before petitioner’s trial 
that Fernando Torres could have provided useful 
testimony regarding petitioner’s alibi9, Kaiser’s 
decision not to pursue Fernando as a witness appears 
to have been based on a mistaken belief that he could 
not obtain funds for his travel expenses, and the 
decision was flawed because it was not based on “a 
plausible strategic calculus or an adequate pre-trial 
investigation.” Pavel v. Hollins, 261 F.3d 210, 221-22 
(2d Cir. 2001); see also Tosh v. Lockhart, 879 F.2d 412, 
414 (8th Cir. 1989) (counsel’s performance was defi­
cient for failing to procure witness testimony that 
counsel knew was relevant). Insofar as Kaiser

As noted at page 28 [supra, at 125a], above, Kaiser was 
not sure whether he had spoken to Fernando Torres prior to 
petitioner’s trial (Hrg. TV. at 124).



142a

believed that Fernando did not want to testify for 
reasons of expense and inconvenience, it was still 
unreasonable for Kaiser to forgo Fernando’s testimo­
ny. See Washington v. Smith, 219 F.3d 620, 630 (7th 
Cir. 2000) (“. . . placing witness convenience above the 
vital interests of [a] client does not make [a defense 
attorney’s] decision reasonable -  or even really stra­
tegic.”) Even if Kaiser had been reasonable in his 
mistaken belief that Justice Fisch had not approved 
funding for investigative expenses for a Florida 
investigation, that did not excuse Kaiser from re­
questing assistance under a statute that permitted 
the Trial Court to order reimbursement of a defen­
dant’s indigent witness’ reasonable travel expenses. 
See McKinney’s CPL § 610.50(2). Kaiser’s failure to 
take advantage of available procedural mechanisms 
to help secure the production of key witnesses was 
performance falling below a reasonable professional 
standard. See Batten v. Griener, 97 Civ. 2378, 2003 
WL 22284187 at *9 (E.D.N.Y. 2003). Kaiser’s failure 
to procure witnesses, which was based on Kaiser’s 
failure to review the record and accurately learn the 
outcome of the motion for investigative fees, cannot 
be considered reasonable or strategic. Hence, his 
failure to arrange Fernando’s presence at trial was 
constitutionally deficient. See Noble v. Kelly, 89 F. 
Supp.2d 443, 463 (S.D.N.Y. 2000).

Respondent suggests that since Fernando’s 
testimony “mimicked” his son’s trial testimony, de­
fense counsel might have purposely decided not to use 
it because it was “ ‘unnecessarily cumulative’ ” (Resp.



143a

Op. at 8 quoting United States v. Luciano, 158 F.3d 
655, 660 (2d Cir. 1998)). Hartsfield’s testimony at the 
440 hearing does not indicate she decided to forgo any 
alibi witness testimony as cumulative; to the contra­
ry, she believed additional witnesses could have 
helped depending on how those individuals would 
present at trial (Hrg. TV. at 95). While Kaiser testified 
that Fernando Torres did not have new information to 
add to petitioner’s other alibi witnesses, Kaiser also 
admitted that he was not sure he ever spoke with 
Fernando. Kaiser had no notes documenting any 
conversations with Fernando, and Fernando did not 
recall ever speaking with Kaiser (Hrg. TV. at 193, 353- 
54). Kaiser also testified that he did not ask addition­
al potential witnesses to testify because they had told 
him that traveling to New York would have been a 
hardship for them, and Kaiser believed that they 
would not be reimbursed for traveling expenses (Hrg. 
TV. at 225). Therefore I cannot find that defense 
counsel concluded that Fernando’s testimony would 
have been unnecessary and cumulative, or that 
counsel made any strategic choices regarding Fer­
nando’s testimony.

For the reasons stated above, I find that Harts­
field’s and Kaiser’s performances were objectively 
deficient for failing to adequately investigate peti­
tioner’s alibi and present additional witnesses at his 
trial.



144a

ii. Prejudice
As to the prejudice prong of Strickland, I con­

clude that there was a reasonable probability that 
Fernando and Chenoa’s testimony would have affect­
ed the outcome of petitioner’s trial

To show prejudice as a result of his counsel’s 
failure to call additional alibi witnesses, petitioner 
must show that the uncalled witness would have 
provided relevant, non-cumulative testimony. United 
States v. Luciano, supra, 158 F.3d at 660-67. Only two 
of the seven witnesses presented at the 440 hearing, 
Fernando Torres and Chenoa Ruiz, actually testified 
to seeing petitioner in Florida on June 19.

At petitioner’s 440 hearing, Fernando testified 
consistently with John Torres that he spent part of 
June 19 with petitioner searching for car parts, and 
Chenoa testified that she saw petitioner twice on 
June 19 at the home of John Torres and Jenine Seda. 
Respondents argue that the testimony of Fernando 
and Chenoa was cumulative to John Torres and 
Jenine Seda’s testimony, and therefore, petitioner’s 
counsel cannot be found ineffective for failing to 
present Fernando and Chenoa at trial (Resp. Op. at 8, 
9-10).

A habeas petitioner cannot satisfy the prejudice 
prong of Strickland by showing that defense counsel 
failed to present exculpatory witnesses that would 
have been merely corroborative of or cumulative to 
those who testified at trial. See United States v. 
Luciano, supra, 158 F.3d at 660-67. Even though



145a

Fernando’s testimony about June 19 was repetitive of 
his son’s, cumulative or repetitive evidence will carry 
some weight “in a situation where inconsistent testi­
mony and credibility are at issue.” United States v. 
Puco, 338 F. Supp. 1252, 1254 (1972). Fernando’s 
testimony was significant and non-cumulative be­
cause it would not have been as susceptible to im­
peachment as his son’s testimony. The prosecutor 
argued in summation that both John Torres and 
Jenine Seda were “interested witnesses” who did not 
want to see their friend go to jail (Trial TV. at 529). 
The Trial Judge instructed the jury that it could 
consider a friend of a defendant to be an interested 
witness whose testimony is biased (Trial TV. at 558). 
Fernando, on the other hand, did not have a similar 
personal relationship with petitioner and could not 
have been impeached on that ground. When the jury 
is faced with a pure credibility determination, disin­
terested witnesses can impact the determination and 
should not be considered cumulative. See Montgomery 
v. Petersen, 846 F.2d 407, 413 (7th Cir. 1988) (addi­
tional alibi witness would not have been cumulative 
despite testimony by several other witnesses, where 
the additional witness did not suffer from the same 
credibility problems as the others); Bohan v. 
Kuhlman, 234 F. Supp.2d 231, 251 (S.D.N.Y. 2002) 
(trial court erred in excluding testimony of alibi 
witness who, if credited by the jury, would have 
“bolstered the testimony of [petitioner’s] other alibi 
witnesses.”); see also Bigelow v. Williams, 367 F.3d 
562, 575 (6th Cir. 2004) (disinterested witnesses’ 
testimony would not have been cumulative);



146a

Washington v. Smith, 219 F.3d 620, 634 (7th Cir. 
2000) (rejecting state appellate court’s conclusion that 
uncalled alibi witnesses’ testimony would have been 
repetitive and thus cumulative; petitioner’s wherea­
bouts at the time of the crime was not an established 
fact, and the witnesses would have added credibility 
to petitioner’s alibi defense.)10

Respondent also claims that Fernando’s testimo­
ny is not credible because he may have been “honestly 
mistaken” about seeing petitioner on June 19 (Resp. 
Op. at 7). Respondent points out that Franklin’s notes 
of her conversation with Fernando state that Fernando 
was with petitioner looking for car parts in “latter 
June,” rather than stating that Fernando reported 
doing so specifically on June 19 (Resp. Op. at 7). 
However, respondent offers no evidence that when 
Franklin spoke to Fernando in October, 1996, Frank­
lin had asked Fernando specifically about June 19, or 
that Franklin had told Fernando that June 19 was 
the date of the crime for which petitioner was arrest­
ed. Moreover, respondent’s argument is applicable to 
any uncalled witness, and, if accepted, all claims of

10 Respondent argues that, despite the prosecution’s posi­
tion at trial, Jenine Seda was not an interested witness and that 
petitioner’s counsel did, therefore, offer disinterested alibi 
witness testimony at trial (Resp. Op. at 18-20). At petitioner’s 
trial, the prosecution’s summation clearly accused Seda, with 
whom petitioner had lived, of being interested and potentially 
biased towards petitioner (Trial Tr. at 529). Given the prosecu­
tion’s argument at trial, respondent’s claimed recent epiphany is 
impossible to credit.



147a

ineffective assistance could never be predicated on 
counsel’s failure to call a witness.

Respondent also argues that Fernando’s 2004 
hearing testimony was unreliable because he failed to 
remember other details, such as his conversations 
with Kaiser and Franklin, what day of the week Seda 
was admitted to the hospital to give birth, when John 
and Seda moved to Pennsylvania, when petitioner 
traveled to and from Florida, and when petitioner 
was incarcerated in Florida (Resp. Op. at 7-9). Re­
spondent’s argument is unavailing. Fernando’s inabil­
ity to recall those other details does not necessarily 
mean Fernando’s memory is flawed regarding June 
19, 1996, the day before his first grandson was born. 
Moreover, since Fernando was not a close friend of 
petitioner, he would have no reason to remember 
when petitioner traveled or was incarcerated. Fer­
nando’s inability to remember these details does not 
excuse Kaiser’s failure to communicate more fully 
with Fernando and to produce him as a witness at 
petitioner’s trial.

Respondent argues that Chenoa Ruiz’s testimony 
was also completely cumulative because her testimony 
would have placed petitioner at the same exact loca­
tion during the same time periods as John Torres and 
Jenine Seda (Resp. Op. at 9-10). Chenoa testified, 
however, that she was not friends with petitioner; to 
the contrary, Chenoa testified that she did not like 
petitioner because she believed his presence was 
making things more difficult for Seda during her 
pregnancy (Hrg. Tr. at 500-03). Thus, like Fernando



148a

Torres, Chenoa could not have been impeached on the 
ground of bias, and her testimony would not have 
been cumulative to that of John Torres and Jenine 
Seda.

Respondent also makes several unpersuasive 
attempts to discredit Chenoa.

Respondent first argues that Chenoa was not 
credible because although she recalled seeing 
petitioner on June 19, she could not remember when 
petitioner traveled back and forth between Florida 
and New York during his previous Florida trip, and 
she did not know exactly when petitioner left Florida 
in the end of June, 1996 (Resp. Op. at 10-12). Chenoa 
testified that she specifically recalled seeing petitioner 
at Seda’s apartment on June 19 because she took 
Seda to the doctor that day and Seda’s baby was born 
the following day (Hrg. Tr. at 548, 550). In addition, 
Chenoa testified that she had heard only a few weeks 
after June 19 that petitioner was arrested for a crime 
that occurred that day (Hrg. Tr. at 506-07). Hence, 
Chenoa’s precise memory of seeing petitioner on June 
19 is explainable because there were other significant 
events connected with that day and the following day. 
There were no other similar landmark events in 
Chenoa’s life to mark the other dates about which she 
was asked. Thus I do not agree with respondent that 
Chenoa’s 440 testimony was unreliable because she 
could not recall petitioner’s whereabouts on dates 
other than June 19.



149a

I also disagree with Respondent that the fact 
that petitioner sent a single letter to Chenoa during 
the eight years in which he was incarcerated shows 
that Chenoa was biased. Chenoa testified that when 
petitioner was in Florida, he became friendly with her 
infant children and their father, that petitioner wrote 
mainly to inquire about the children, and that peti­
tioner’s letter did not mention his case (Hrg. TV. at 
524). In addition, there is no evidence of any friendly 
relationship between petitioner and Chenoa prior to 
petitioner’s trial. Respondent’s allegation regarding 
petitioner’s letter to Chenoa is not sufficient to con­
clude that petitioner ever had, let alone maintained, a 
close relationship with Chenoa.

Respondent also contends that Chenoa is unreli­
able because she had previously prepared a written 
statement that lacked some of the details she provided 
in her testimony, and merely stated that she knew 
petitioner was in Florida on June 19 because she saw 
him that day (Resp. Op. at 10). The omission of 
details from Chenoa’s written statement does not call 
her reliability into question. There is no indication 
that anyone requested that Chenoa write a detailed 
statement that included everything she could 
remember about petitioner on June 19. Thus, there is 
no basis to conclude that, because she submitted a 
sparse written statement, Chenoa either lied or 
reconstructed details upon testifying at petitioner’s 
440 hearing. See Victory v. Bombard, 570 F.2d 66, 70 
(2d Cir. 1978) (statements witness made to a detec­
tive were not prior inconsistent statements merely



150a

because they omitted details disclosed by that wit­
ness’ testimony).

No physical evidence was presented at petitioner’s 
trial connecting petitioner to Collazo’s murder; the 
prosecution relied solely on the eyewitness identifica­
tions of two individuals, Sanchez and Davis, neither 
of whom had ever met petitioner. Sanchez testified 
that he only saw petitioner for a minute, and Davis, 
who was about fifteen feet away from the shooting, 
appears to have witnessed the relevant events for 
only several seconds (Trial TV. at 150, 53-58). A third 
eyewitness, Jose Diaz, believed he would be able to 
recognize the perpetrator yet did not identify peti­
tioner in court (Trial Tr. at 295-96).

Eyewitness evidence, uncorroborated by physical 
evidence, is not overwhelming evidence. Griffin v. 
Warden, Maryland Correctional Adjustment Center, 
970 F.2d 1355, 1359 (4th Cir. 1992) (“[ejyewitness 
identification evidence, uncorroborated by a finger­
print, gun, confession, or coconspirator testimony, is a 
thin thread to shackle a man for forty years.”). Eye­
witness identification by a stranger is even more 
susceptible to error than identification by someone 
who is otherwise familiar with an alleged perpetrator. 
See Kampshoff v. Smith, 698 F.2d 581, 585 (2d Cir. 
1983) (“The identification of strangers is proverbially 
untrustworthy” quoting Felix Frankfurter, The Case 
of Sacco & Vanzetti 30 (1927).).

The addition of Fernando Torres and Chenoa 
Ruiz would have presented the jury with a total of



151a

four alibi witnesses to contradict the prosecution’s 
two eyewitnesses, and Fernando and Chenoa were 
substantially disinterested in the outcome of the 
trial.11 “In a case involving identification and 
identification alone, it is not easy to imagine a de­
fense lawyer who would pass on the chance to bolster 
the defense with [additional alibi witnesses] -  partic­
ularly since eyewitness evidence is ‘precisely the sort 
of evidence that an alibi defense refutes best.’ ” See 
Bigelow v. Williams, supra, 367 F.3d at 576 quoting 
Griffin u. Warden, Maryland Correctional Adjustment 
Center, supra, 970 F.2d at 1359.

In light of the thin evidence presented by the 
prosecution at petitioner’s trial, the additional alibi 11

11 None of the other five witnesses at petitioner’s hearing, or 
items of documentary evidence presented and described, estab­
lish petitioner’s presence in Florida on the day of the shooting. 
The failure to offer this evidence could not, therefore, have 
prejudiced petitioner. United States v. Luciano, supra, 158 F.3d 
at 660-67 (to show prejudice from the failure of counsel to call 
witnesses, petitioner must show that the uncalled witnesses 
would have provided relevant testimony); Buitrago v. Scully, 705 
F.Supp. 952, 954 (S.D.N.Y. 1989) (counsel not ineffective for 
failing to present alibi witness where petitioner fails to show 
witness knew where petitioner was at the time of the crime); 
United States v. Puco, 338 F. Supp. 1252, 1254 (D.C.N.Y. 1972) 
(witness’ testimony that he was with the defendant during the 
afternoon the day of the crime is not relevant alibi evidence 
when the crime occurred in the evening). Since the failure to call 
these witnesses and offer this evidence could not have preju­
diced petitioner, there is no need to address whether counsel’s 
failure to offer this evidence constituted deficient performance. 
Strickland v. Washington, supra, 466 U.S. at 697.



152a

testimony from Fernando and Chenoa presented at 
petitioner’s post-conviction hearing was sufficient to 
“undermine confidence in the outcome” of petitioner’s 
trial. Strickland, supra, 466 U.S. at 694. Thus I find 
that petitioner has satisfied both prongs of Strick­
land. Nevertheless, I cannot conclude that the state 
court’s holding to the contrary was an unreasonable 
application of, or contrary to, Supreme Court prece­
dent.

d. Application of the AEDPA Standard 
to Petitioner’s Claim

As discussed above, Justice Davidowitz rejected 
petitioner’s ineffective assistance of counsel claim, 
applying New York State’s “meaningful representa­
tion” standard as articulated by the New York Court 
of Appeals in People v. Benevento, supra, 91 N.Y.2d 
708, 697 N.E.2d 584, 674 N.Y.S.2d 629. This standard 
for analyzing claims of ineffective assistance of coun­
sel “is ultimately concerned with the fairness of the 
process as a whole rather than its particular impact 
on the outcome of the case.” People v. Benevento, 
supra, 91 N.Y.2d at 714, 697 N.E.2d at 588, 674 
N.Y.S.2d at 633. Petitioner argues that Justice 
Davidowitz’s application of the “meaningful represen­
tation” standard was both contrary to, and an unrea­
sonable application of Strickland (Pet. Reply at 16).

In his 440 Decision and Order, Justice 
Davidowitz looked at a number of issues routinely 
considered by New York courts in analyzing whether



153a

or not counsels’ errors amounted to ineffective assis­
tance, such as did counsel perform competently in 
other respects and were counsels’ errors so seriously 
prejudicial as to compromise a defendant’s right to a 
fair trial (440 Order at 16-17, citing People v. Flores, 
84 N.Y.2d 184, 639 N.E.2d 19, 615 N.Y.S.2d 662 
(1994), People v. Aiden, 45 N.Y.2d 394, 380 N.E.2d 
272, 408 N.Y.S.2d 444 (1978), and People v. Adams, 
12 A.D.3d 523, 783 N.Y.S.2d 867 (2d Dep’t 2004)). 
Justice Davidowitz concluded that both attorneys 
filed all appropriate motions, conducted an investiga­
tion that was “within the scope of information” avail­
able to them, competently examined witnesses and 
made competent opening and closing statements, 
and, “most importantly, a credible alibi defense was 
presented to the jury” (440 Order at 17). Without 
specifically addressing the testimony of Fernando 
Torres and Chenoa Ruiz, Justice Davidowitz then 
concluded that the witnesses presented at the hear­
ing were “questionable” and “not as persuasive as 
[John Torres and Jenine Seda] who . . . were rejected 
by the jury” (440 Order at 21-22). Thus, Justice 
Davidowitz found that the outcome of petitioner’s 
trial was “unimpeached and ‘amply supported by the 
evidence’ ” (440 Order at 22, quoting People v. Jack- 
son, 74 A.D.2d 585, 424 N.Y.S.2d 484 (2d Dep’t 1980), 
aff’d, 52 N.Y.2d 1027, 420 N.E.2d 97, 438 N.Y.S.2d 
299 (1981)). Petitioner argues that Justice
Davidowitz’s “meaningful representation” analysis 
was contrary to Strickland (Pet. Mem. at 39).



154a

The Second Circuit has repeatedly held that New 
York’s “meaningful representation” standard for 
analyzing habeas claims of ineffective assistance of 
counsel, as articulated in People v. Benevento, supra, 
91 N.Y.2d at 714, 697 N.E.2d at 588, 674 N.Y.S.2d at 
633, is not contrary to Strickland. See Eze v. 
Senkowski, 321 F.3d 110, 122-23 (2d Cir. 2003); 
Lindstandt v. Keane, supra, 239 F.3d at 198. Never­
theless, petitioner argues that the Second Circuit’s 
more recent opinion in Henry v. Poole, supra, 409 F.3d 
48, “suggested that New York’s ‘flexible’ focus on the 
overall fairness of the petitioner’s trial might dilute 
Strickland’s prejudice standard by requiring some­
thing more than a reasonable probability of a differ­
ent outcome” (Pet. Mem. at 39, quoting Henry v. 
Poole, supra, 409 F.3d at 70-71). Specifically, the 
Court noted in Henry that

in light of the Strickland principle that an 
ineffective assistance claim is established if 
the court concludes that there is a reasona­
ble probability that but for counsel’s profes­
sionally deficient performance the outcome of 
the proceeding would have been different, we 
find it difficult to view so much of the New 
York rule as holds that “whether defendant 
would have been acquitted o f the charges but 
for counsel’s errors is .. . not dispositive,” Be­
nevento, 91 N.Y.2d at 714, . . . as not “contra­
ry to” the prejudice standard established by 
Strickland.

Henry v. Poole, supra, 409 F.3d at 71 (emphasis in 
original). Several District Court decisions within the



155a

Circuit have confirmed that Henry does question the 
continuing vitality of the Second Circuit prior deci­
sions that found New York’s “meaningful representa­
tion” is not contrary to Strickland. Acencio v. 
McKinney, 05-CV-1026 (NGG), 2007 WL 2116253 at 
*14 n.20[,] (E.D.N.Y. July 20, 2007); Remy v. Graham, 
06 CV 3637 (JG), 2007 WL 496442 at *5 (E.D.N.Y 
Feb. 12, 2007); Baskerville v. Dennison, 04 Civ. 10261 
(PKC), 2005 WL 3535067 at *6 (S.D.N.Y. Dec. 27, 
2005). Nevertheless, the panels in both Henry, supra, 
409 F.3d at 70, and Eze v. Senkowski, 321 F.3d 110, 
124 (2d Cir. 2003), expressly noted that, in the ab­
sence of an intervening Supreme Court or en banc 
Circuit decision, they were “bound” by the Circuit’s 
precedents holding that New York’s “meaningful 
representation” standard was not contrary to Strick­
land. Given that the Second Circuit has expressly 
found itself bound by these precedents, it would be 
clearly improper for me to conclude that I had greater 
discretion than the Court with the authority to set 
the law for the Circuit. Accordingly, I am bound by 
precedent to conclude that the “meaningful represen­
tation” standard is not contrary to Strickland. Never­
theless, I will consider petitioner’s arguments that 
Justice Davidowitz’s analysis of petitioner’s ineffec­
tive assistance of counsel claim was contrary to 
Strickland, as doing so would not affect the outcome 
of this case.

Petitioner argues that Justice Davidowitz’s 
analysis was contrary to Strickland because his 
opinion emphasized that Hartsfield and Kaiser’s



156a

misunderstandings regarding the granting of expenses 
to investigate were unintentional errors. Petitioner 
contends this “honest heart” standard imposes a 
heavier burden on petitioner than Strickland’s “rea­
sonable professional” standard because it requires 
petitioner to demonstrate that trial counsel had an 
improper motive for his or her objectively deficient 
performance (Pet. Mem. at 39-40), citing Cargle v. 
Mullin, 317 F.3d 1196, 1204-05 (10th Cir. 2003). I 
disagree with petitioner that Justice Davidowitz’s 
opinion petitioner placed such a burden on petitioner. 
Unlike the petitioner in Cargle, petitioner here was 
not required to establish why his counsel failed to 
find and present additional witnesses or evidence at 
his trial. Cargle v. Mullin, supra, 317 F.3d at 1205. 
Justice Davidowitz’s opinion does not suggest that 
petitioner was required to show anything more than 
what Strickland requires: that his counsel were 
deficient and that because of such deficiency the 
outcome of his trial might have been different. Justice 
Davidowitz’s opinion discussed the positive aspects of 
counsels’ performance and counsels’ “integrity” to 
support his conclusion that petitioner received a fair 
trial; he did not deny petitioner’s motion for failing to 
establish that Kaiser and Hartsfield had improper 
motives. Hence, Justice Davidowitz’s emphasis on 
counsel’s lack of bad intentions was not contrary to, 
nor was it an unreasonable application of, the Strick­
land standard.

Petitioner also argues that Justice Davidowitz’s 
opinion was contrary to Strickland because it relied



157a

on a formulation of prejudice that precludes relief 
where the verdict was “amply supported by the 
evidence” (440 Order at 22, quoting People v. Jackson, 
supra, 74 A.D.2d at 587, 424 N.Y.S.2d at 485), and 
that such a standard is diametrically different from 
Strickland’s requirement that a petitioner show only 
a reasonable probability of acquittal had counsel 
performed adequately (Pet. Mem. at 40). When refer­
ring to People v. Jackson, supra, 74 A.D.2d at 587, 
424 N.Y.S.2d at 485, Justice Davidowitz was not 
saying petitioner’s motion should be denied simply 
because there was ample evidence in support of 
petitioner’s guilt. Rather, he was merely taking into 
consideration the strength of respondent’s case in 
reaching his conclusion. Consideration of the strength 
of the prosecution’s case is completely appropriate 
under Strickland v. Washington, supra, 466 U.S. at 
696 (“[A] verdict or conclusion only weakly supported 
by the record is more likely to have been affected by 
errors than one with overwhelming record support.”); 
Baskerville v. Dennison, supra, 2005 WL 3535067 at 
*10 (“In assessing the question of prejudice, the Court 
must take into account the totality of the evidence 
before the trial court.”). It was not contrary to or an 
unreasonable application of Strickland for the state 
court to find the prosecution’s case was sufficiently 
strong that a jury verdict would have been the same 
if petitioner had presented additional alibi witnesses.

Petitioner also contends that Justice Davidowitz 
unreasonably applied Strickland by focusing on 
counsels’ competent performance in other areas while



158a

assessing whether counsel was ineffective for failing 
to adequately investigate the alibi defense (Pet. Mem. 
at 42). Petitioner argues that the Court in Henry v. 
Poole, supra, 409 F.3d at 72, “noted that when the 
New York Court of Appeals emphasized ‘counsel’s 
competency in all other respects’ in determining 
‘meaningful representation,’ it was failing to apply 
the Strickland standard “ ‘at all’ ” (Pet. Mem. at 39, 
citing Henry v. Poole, 409 F.3d at 72). However, the 
Henry court did not fault the New York Court of 
Appeals for emphasizing counsel’s competency; the 
Court faulted it for “it’s [sic] reliance” on counsel’s 
competent performance in ways that were not the 
subject of the ineffectiveness claims. Henry v. Poole, 
supra, 409 F.3d at 72 (emphasis added). I disagree 
with petitioner’s contention that Justice Davidowitz 
found that “counsel’s competency in some areas of 
their legal representation [can] compensate for signif­
icant deficiencies in other areas” (Pet. Reply at 17). 
Rather, Justice Davidowitz looked at counsel’s per­
formance as a whole, including the alibi evidence that 
was presented at trial, to reach his conclusion that 
petitioner failed to demonstrate that further investi­
gation in Florida could have resulted in a different 
jury verdict. In Strickland terms, Justice Davidowitz 
held that petitioner failed to show he was prejudiced 
by counsels’ deficiencies -  a conclusion which, if rea­
sonable, is sufficient by itself to deny habeas relief. 
Strickland v. Washington, supra, 466 U.S. at 697 (“[A] 
court need not determine whether counsel’s perfor­
mance was deficient . . .  If it is easier to dispose of 
an ineffectiveness claim on the ground of lack of



159a

sufficient prejudice . . . that course should be fol­
lowed.”). Although I would reach a different result if 
the matter were before me for de novo review, the 
evidence is not so one-sided that Justice Davidowitz’s 
conclusion can be characterized as unreasonable. 
Hence I do not find that the state court’s considera­
tion of the totality of counsel’s performance to have 
been contrary to or an unreasonable application of 
Strickland.

e. Summary
Accordingly, despite the merits of petitioner’s 

ineffective assistance of counsel claim, I conclude that 
the state court’s rejection of petitioner’s claim is 
erroneous but not “unreasonable” or “contrary to” the 
United States Supreme Court’s precedent in Strick­
land. Thus, in light of the deference owed to the 
state’s decision under AEDPA, petitioner’s claim for 
relief based on the ineffective assistance of counsel 
should be denied.

2. Petitioner’s Batson Claim
Petitioner next claims that the prosecutor’s use 

of her first six peremptory challenges to strike 
African-American jurors established a prima facie 
case of racial discrimination, and that the Trial Court 
erred by failing to require the prosecutor to provide 
race-neutral explanations for her choices as required 
by Batson v. Kentucky, 476 U.S. 79 (1986). Petitioner 
further argues that the Appellate Division’s rejection



160a

of his Batson challenge was an unreasonable applica­
tion of the Supreme Court’s precedent.

a. Jury Selection and State Court Pro­
ceedings

The twelve jurors and three alternate jurors who 
heard the case against petitioner were selected 
through three rounds of voir dire. Because New York 
classifies murder as a Class A felony, both the prose­
cution and defense had twenty peremptory challenges, 
exclusive of challenges to potential alternate jurors. 
N.Y. Crim. Proc. L. § 270.25(a). It appears from the 
record that the jury was selected using the “jury box” 
system, commonly used in criminal trials in New 
York. Under this system, groups of prospective jurors, 
randomly selected from the venire, are called to the 
jury box and questioned. Counsel then exercise 
challenges for cause. After “for cause” challenges are 
resolved, counsel exercise their peremptory chal­
lenges. The process is repeated until a jury is em­
paneled. See generally Sorto v. Herbert, 497 F.3d 163, 
166 (2d Cir. 2007) (describing “jury box” selection 
system).

During the first round of jury selection in peti­
tioner’s case, sixteen venire persons were called to 
the jury box. Two were removed on consent (Jury 
Tr.12 I at 88). After an unsuccessful challenge to one

12 “Jury Tr.” refers to the transcript of jury selection pro­
ceedings in petitioner’s case.



161a

prospective juror for cause (Jury Tr. I at 90-92), the 
prosecution exercised four peremptory challenges, 
including a challenge to the prospective juror who 
was unsuccessfully challenged for cause (Jury Tr. I at 
91). The defense exercised two peremptory challenges 
(Jury Tr. I at 92-93), and the remaining eight individ­
uals were sworn in as jurors (Jury Tr. I at 94).

In the second round of jury selection, seventeen 
individuals were called to the jury box (Jury Tr. I at 
100-02). After four of these individuals were excused 
on consent (Jury Tr. I at 156-60), Justice Fisch asked 
counsel if they had any peremptory challenges as to 
the first four prospective jurors remaining in the 
second round (Jury Tr. I at 160). The prosecution 
challenged one of those four, and then the defense 
challenged two of them (Jury Tr. I at 161). Justice 
Fisch then invited counsel to exercise their perempto­
ry challenges with regards to the next three jurors 
(Jury Tr. at 161). The prosecution challenged one of 
those three individuals (Jury Tr. I at 161).

At that point, the following colloquy occurred:

[Defense Counsel:] Judge, most respectfully, and 
I hate to do it, but it’s 
reached the point now where 
I notice a pattern of chal­
lenges that are consistent 
only by one factor and that’s 
the race of the person that’s 
being challenged, all of 
whom are black. Every sin­
gle one of them.



162a

THE COURT:

Now, granted this is the 
Bronx and there’s a lot of 
black jurors and there’s a 
couple or a few that she 
didn’t take off, but the ones 
that she did take off without 
exception are Afrfican]- 
Americans.

LetCs] see if there is a pat­
tern.

^Whereupon. there is a brief pause in the pro­
ceedings. '

THE COURT: I do not see a prima faci[e] 
case of exercised peremptory 
challenges by race. The Peo­
ple have exercised six 
peremptories of Afr[ican-] 
Americans and there were 
four that wrere not chal­
lenged by her, three of whom 
are jurors, one of them 
whom you challenged. I deny 
your challenge.

[Defense Counsel:] All right.
* * *

THE COURT: As a matter of fact, I should 
say that five [African- 
Americans] were not chal­
lenged. Six were challenged, 
five were not.



163a

[Defense Counsel:] Yeah, but I don’t think -  it’s
not necessarily who[’s] not 
challenged. I think it is who 
is challenged.

THE COURT: All right, that’s my ruling. I
do not see a prima faci[e] 
case.

(Jury Tr. I at 161-63).

Defense counsel never raised any additional 
arguments concerning the prosecution’s use of its 
peremptory challenges. The prosecution subsequently 
exercised four more peremptory challenges in the 
remainder of the second round and during the third 
round of jury selection (Jury Tr. I at 168, Jury Tr. II 
at 84-87). The record does not reflect the race of any 
of the subsequently challenged venire persons or the 
final racial make-up of the jury.

Petitioner argued on direct appeal that the 
prosecution’s use of its first six peremptory challenges 
exclusively against African-Americans established a 
prima facie case of discrimination under Batson, and 
that the prosecution should have been required to 
provide race-neutral reasons for its challenges (App. 
Div. Br. at 46-49). The Appellate Division rejected 
petitioner’s arguments, stating:

Defendant failed to make a prima facie show­
ing of racial discrimination by the prosecu­
tion in the exercise of its peremptory 
challenges, particularly in light of the racial 
makeup of the panel of prospective jurors



164a

(see, People v Ware, 245 AD2d 85, Iv denied 
91 NY2d 978). The mere number of peremp­
tory challenges exercised by the prosecution 
against African-Americans did not establish 
a prima facie case and defendant failed to 
show disparate treatment of similarly situat­
ed panelists or other relevant circumstances 
to raise an inference of a discriminatory pur­
pose (see, People v Jenkins, 84 NY2d 1001; 
People v Bolling, 79 NY2d 317).

People v. Rosario, supra, 288 A.D.2d at 143, 733 
N.Y.S.2d at 406-07.

The Appellate Division’s decision clearly consti­
tutes a decision on the merits of petitioner’s Batson. 
It addresses the substance of the claim and does not 
remotely suggest any procedural deficiency. Accord­
ingly, the Appellate Division’s decision is entitled to 
the deferential standard of review set forth in 
the AEDPA, and relief can be granted only if the 
Appellate Division’s decision was “contrary to, or 
involved an unreasonable application of, clearly 
established Federal law, as determined by the Su­
preme Court of the United States.” 28 U.S.C. § 2254; 
Sorto v. Herbert, supra, 497 F.3d at 169.

b. Analysis
In Batson v. Kentucky, supra, 476 U.S. at 79, the 

Supreme Court held that a prosecutor may not use 
peremptory challenges to discriminate against poten­
tial jurors along racial lines. “[T]he Equal Protection 
Clause forbids the prosecutor to challenge potential



165a

jurors solely on account of their race or on the 
assumption that black jurors as a group will be 
unable impartially to consider the State’s case 
against a black defendant.” Batson v. Kentucky, 
supra, 476 U.S. at 89.

The Batson Court formulated a three-part test 
“for assessing a prima facie case under the Equal 
Protection Clause.”

The Batson Court . . . established] a 
three-step burden-shifting framework for the 
evidentiary inquiry into whether a peremptory 
challenge is race-based, [476 U.S.] at 96-98, 
106 S.Ct. 1712: First, the moving party -  i.e., 
the party challenging the other party’s at­
tempted peremptory strike -  must make a 
prima facie case that the nonmoving party’s 
peremptory is based on race. Batson, 476 
U.S. at 96-97, 106 S.Ct. 1712; Hernandez v. 
New York, 500 U.S. 352, 358, 111 S.Ct. 1859,
114 L.Ed.2d 395 (1991). Second, the nonmov­
ing party must assert a race-neutral reason 
for the peremptory challenge. Batson, 476 
U.S. at 97-98, 106 S.Ct. 1712; Hernandez, 
500 U.S. at 358-59, 111 S.Ct. 1859. The non­
moving party’s burden at step two is very 
low. Under Burkett v. Elem, 514 U.S. 765,
115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (per 
curiam), although a race-neutral reason 
must be given, it need not be persuasive or 
even plausible. Id. at 768, 115 S.Ct. 1769. 
Finally, the court must determine whether 
the moving party carried the burden of show­
ing by a preponderance of the evidence that



166a

the peremptory challenge at issue was based 
on race. Batson, 476 U.S. at 96, 98, 106 S.Ct. 
1712; Hernandez, 500 U.S. at 359, 111 S.Ct. 
1859.

McKinney v. Artuz, 326 F.2d 87, 97[-]98 (2d Cir. 2003) 
(footnote omitted); accord Sorto v. Herbert, supra, 497 
F.3d at 169-70; Frazier v. New York, 187 F. Supp.2d 
102, 114 (S.D.N.Y. 2002), aff’d mem., 156 Fed. Appx. 
423 (2d Cir. 2005).

“To establish a prima facie case, ‘a defendant 
must show facts and circumstances that raise an 
inference that the prosecutor used the peremptory 
challenge to exclude potential jurors from the petit 
jury on account of their race.’ ” Sorto v. Herbert, 
supra, 497 F.3d at 170, quoting Overton v. Newton, 
295 F.3d 270, 276 (2d Cir. 2002). The burden of mak­
ing a prima facie showing under a Batson challenge is 
not onerous and is analogous to the burden borne by 
the plaintiff in a Title VII case to make out a prima 
facie case under the McDonnell Douglas test. See 
Truesdale v. Sabourin, 427 F. Supp.2d 451, 458-59 
(S.D.N.Y. 2006); see also Williams v. Bruge [sic], 
supra, 2005 WL 2429445 at *5 (“[A] prima facie case 
under Batson demands only a ‘minimal burden’ from 
the claimant.”). The party asserting the challenge 
need not show that it is more likely true than not that 
discriminatory animus underlies the adversary’s 
conduct; all that need be shown to establish a prima 
facie case is “evidence sufficient to permit the trial 
judge to draw an inference that discrimination has



167a

occurred.” Johnson v. California, 545 U.S. 162, 170 
(2005).

There is no formula for determining what show­
ing is sufficient to establish a prima facie case of 
discriminatory use of peremptory challenges. Tankleff 
v. Senkowski, 135 F.3d 235, 249 (2d Cir. 1998). 
Rather,

[i]n deciding whether the defendant has 
made the requisite [prima facie] showing, the 
trial court should consider all relevant cir­
cumstances. For example, a “pattern” of 
strikes against all black jurors included in 
the particular venire might give rise to an in­
ference of discrimination. Similarly, the 
prosecutor’s questions and statements dur­
ing voir dire examination and in exercising 
his challenges may support or refute an in­
ference of discriminatory purpose. These ex­
amples are merely illustrative.

Batson v. Kentucky, supra, 476 U.S. at 96-97; accord 
Overton v. Newton, supra, 295 F.3d at 277-78; see 
Isaac v. Greiner, 01 Civ. 2178 (PKC), 2005 WL 
1713036 at *5 (S.D.N.Y. July 19, 2005).

“[T]he threshold decision concerning the exist­
ence of a prima facie case of discriminatory use of 
peremptory challenges involves both issues of fact 
and an issue of law.” United States v. Alvarado, 891 
F.2d 439, 443 (2d Cir. 1989), vacated on other 
grounds, 497 U.S. 110 (1990). Where the state courts 
have issued a decision on the merits concerning the 
existence of a prima facie case, that decision is



168a

entitled to the deferential standard of review set forth 
in the AEDPA. Overton v. Newton, supra, 295 F.3d at 
277. Thus, a prisoner challenging the trial court’s 
resolution of a Batson challenge through a habeas 
corpus petition has to overcome a “presumption of 
correctness”:

We review a district court’s ruling on a peti­
tion for a writ of habeas corpus de novo. See 
English v. Artuz, 164 F.3d 105, 108 (2d Cir. 
1998). Because a trial court’s determination 
of whether a juror was struck for a discrimi­
natory reason turns largely on the judge’s 
observations of the attorneys and prospective 
jurors and an evaluation of their credibility, 
“a reviewing court ordinarily should give 
those findings great deference.” Hernandez v. 
New York, 500 U.S. 352, 364, 111 S.Ct. 1859, 
114 L.Ed.2d 395 (1991). More particularly, 
when reviewing a Batson challenge in the 
context of a habeas petition, a trial court’s 
conclusion that a peremptory challenge was 
not exercised in a discriminatory manner is 
entitled to a presumption of correctness, ex­
cept, inter alia, to the extent that the trial 
court did not resolve the factual issues in­
volved in the challenge or if the finding is not 
fairly supported by the record. See 28 U.S.C. 
§§ 2254(d)(1) (presumption of correctness not 
applicable if “the merits of the factual dis­
pute were not resolved in the State court 
hearing”) and (d)(8) (1994) (presumption of 
correctness not applicable if state court’s 
“factual determination is not fairly supported 
by the record”); see also Burkett v. Elem, 514



169a

U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 
834 (1995) (“[T]he factual findings of state 
courts are presumed to be correct, and may 
be set aside, absent procedural error, only if 
they are not fairly supported by the record.”) 
(internal quotation marks omitted); Wash­
ington v. Schriver, 240 F.3d 101, 110 (2d Cir. 
2001) (stating that the factual findings of 
state trial and appellate courts are entitled 
to a presumption of correctness absent spe­
cial circumstances, including a determina­
tion that the factual finding is not fairly 
supported by the record).

Galarza v. Keane, supra, 252 F.3d at 635 (footnote 
omitted). The burden is on petitioner to rebut the 
trial court’s presumption of correctness by clear and 
convincing evidence. Williams v. Burge, 04 Civ. 2590 
(PKC), 2005 WL 2429445 at *3 (S.D.N.Y. Oct. 3, 
2005), quoting Parsad v. Greiner, 337 F.3d 175, 181 
(2d Cir. 2003). Hence, “[a] federal court reviewing a 
state court determination that no prima facie [case] 
existed must accord substantial deference to that 
determination.” Williams v. Burge, supra, 2005 WL 
2429445 at *3.

In light of the deferential standard of review 
afforded to state court decisions in the context of a 
habeas corpus petition, the Court of Appeals seems to 
have suggested that a finding on a direct appeal in a 
federal criminal case that a particular set of facts 
supports a Batson prima facie case does not neces­
sarily imply that a state court’s decision reaching the 
opposite result on the same facts is contrary to or



170a

constitutes an unreasonable application of federal 
law. Sorto v. Herbert, supra, 497 F.3d at 172; Overton 
v. Newton, supra, 295 F.3d at 280 n.12.

Finally, since the petitioner in a habeas proceed­
ing bears the burden of demonstrating a violation of 
his constitutional rights, deficiencies in the record 
that make it impossible to determine whether the 
evidence supports an inference of discrimination 
require that the claim be rejected. Sorto v. Herbert, 
supra, 497 F.3d at 172-73.

Petitioner contends that he made out a prima 
facie case under Batson because the prosecution’s use 
of peremptory challenges against African -Am eri can s 
was grossly disproportionate to the percentage of 
African-Americans who made up the pool of prospec­
tive jurors after challenges for cause and after jurors 
had been excused on consent. Specifically, at the time 
the Batson challenge was made, a total of 33 prospec­
tive jurors had been called to be questioned; a total of 
six had been excused on consent; and the Trial Court 
had invited counsel to exercise peremptory challenges 
against a total of 21 prospective jurors.13 The prosecu­
tion made peremptory challenges directed at six

13 In the first round, the Trial Court invited counsel to 
exercise their peremptory challenges against all 14 prospective 
jurors who remained after two were excused on consent. In the 
second round, the Trial Court subdivided the prospective jurors 
into a group of four and then a group of three. Petitioner made 
his Batson challenge after peremptories directed at the group of 
three were made. See pages 64-65 [supra, at 159a-161a], above.



171a

African-Americans; the Trial Court noted that there 
were five African-Americans who the prosecution did 
not challenge. Thus, of the 21 prospective jurors 
against whom the prosecution could have made 
peremptory challenges, 11, or 52%, were African- 
Americans, yet 100% of the prosecution’s peremptory 
challenges were directed at African-Americans.

Analogous facts were presented in United States 
v. Alvarado, 923 F.2d 253 (2d Cir. 1991) in which the 
prosecution exercised its peremptory challenges 
against two African-American prospective jurors, 
two white prospective jurors and one Hipanic [sic] 
prospective juror. The prosecution waived its sixth 
peremptory challenge. In addition, the prosecution 
used the one peremptory challenge it had for alter­
nate jurors to strike an African American. United 
States v. Alvarado, supra, 923 F.2d at 255.

After assuming that minorities represented 29% 
of the pool of prospective jurors, the Court of Appeals 
found that the pattern of peremptory challenges 
“strongly supported] a prima facie case under Bat­
son:

Here, the prosecution’s challenge rate 
against minorities was 50 percent (three of 
six) in the selection of the jury of 12, and 57 
percent (four of seven) in the selection of the 
jury of 12 plus alternates. Whether this rate 
creates a statistical disparity would require 
knowing the minority percentage of the venire; 
for example, if the minority percentage of the 
venire was 50, it could be expected that a



172a

prosecutor, acting without discriminatory in­
tent, would use 50 percent of his challenges 
against minorities. Only a rate of minority 
challenges significantly higher than the mi­
nority percentage of the venire would sup­
port a statistical inference of discrimination. 
We are not informed of the minority percent­
age of the venire in this case, but we may ac­
cept as a surrogate for that figure the 
minority percentage of the population of the 
Eastern District, from which the venire was 
drawn. That percentage is 29. See Alvarado 
I, 891 F.2d at 444 & n.5.

We think a challenge rate nearly twice 
the likely minority percentage of the venire 
strongly supports a prima facie case under 
Batson. The Government opposes this con­
clusion, pointing to the prosecution’s waiver 
of a challenge in the fifth round, when mi­
nority veniremen were in the jury box, sub­
ject to peremptory challenge. Though failure 
to exercise an available challenge against 
minority veniremen has been mentioned in 
the decisions of some courts finding no prima 
facie case of discrimination, see United States 
v. Moore, 895 F.2d 484, 486 n. 5 (8th Cir. 
1990); United States v. Grandison, 885 F.2d 
143, 148 (4th Cir. 1989), cert, denied, 495 
U.S. 934, 110 S.Ct. 2178, 109 L.Ed.2d 507 
(1990), the fifth round waiver here does not 
defeat a prima facie case. The discrimination 
condemned by Batson need not be as exten­
sive as numerically possible. A prosecutor 
may not avoid the Batson obligation to 
provide race-neutral explanations for what



173a

appears to be a statistically significant pat­
tern of racial peremptory challenges simply 
by forgoing the opportunity to use all of his 
challenges against minorities.

923 F.2d at 256. See also Overton v. Newton, supra, 
295 F.3d at 278 (“[W]e have no doubt that statistics, 
alone and without more, can, in appropriate circum­
stances, be sufficient to establish the requisite prima 
facie showing under Batson”).

Similarly, in Truesdale v. Sabourin, 427 
F.Supp.2d 451 (S.D.N.Y. 2006), 19 individuals made 
up the panel of prospective jurors, 14 of whom were 
African-Americans. As of the time the Batson chal­
lenge was made, the prosecution had exercised eight 
peremptory challenges, all of which were directed at 
African-Americans. The Trial Court concluded that 
these statistics were insufficient to establish a prima 
facie case under Batson[,] 427 F. Supp.2d at 454-55, 
and the Appellate Division affirmed the Trial Court’s 
conclusion on direct appeal.

The prisoner then filed a petition for a writ of 
habeas corpus in this Court. After noting that the 
burden at the initial step of Batson is not a signifi­
cant one, the Honorable Denise L. Cote, United 
States District Judge, concluded that petitioner had 
made a prima facie case of a Batson violation.

When a defendant relies on statistical 
arguments to establish a prima facie case of 
discriminatory jury selection, “a rate of mi­
nority challenges significantly higher than



174a

the minority percentage of the venire would 
support a statistical inference of discrimina­
tion.” Alvarado, 923 F.2d at 255. At the time 
the Batson challenge was made in this case, 
the rate of challenges against black members 
of the venire was 100% (8/8), and the per­
centage of blacks in the venire was 74% 
(14/19). Black prospective jurors were thus 
struck at a rate 36% higher than would be 
expected if peremptory challenges were exer­
cised randomly across the venire. To be sure, 
this disparity is far below the greater than 
100% difference relied upon by the Second 
Circuit in Alvarado, id. at 256, but that case 
did not purport to, and should not be read to, 
establish a minimum threshold for prima fa­
cie claims of discrimination. Were it other­
wise, no inference of discrimination would be 
possible where members of the targeted 
group compose more than 50% of the venire.

427 F. Supp.2d at 461.

In this case, as in both Alvarado and Truesdale, 
the prosecution used 100% of the peremptory chal­
lenges actually exercised up to the time of the Batson 
challenge to strike only African-American prospective 
jurors despite the fact that African-American prospec­
tive jurors made up a significantly smaller percentage 
of the pool of prospective jurors. Here, that percent­
age was 52% (11 out of 21). Alvarado teaches that 
this disparity is sufficient to trigger the prosecution's 
obligation to proffer racially neutral reasons for its 
challenges.



175a

In support of his position, respondent cites to a 
number of facts and cases; none of his arguments are 
convincing.

Like the Trial Court, respondent cites the fact 
that a number of African-Americans were not chal­
lenged (Resp. Op. at 47-48). Alvarado, however, 
expressly rejected this argument:

The discrimination condemned by Batson 
need not be as extensive as numerically pos­
sible. A prosecutor may not avoid the Batson 
obligation to provide race-neutral explana­
tions for what appears to be a statistically 
significant pattern of racial peremptory chal­
lenges simply by foregoing the opportunity to 
use all of his challenges against minorities.

United States v. Alvarado, supra, 923 F.2d at 256. 
Moreover, this argument misses the point of Batson. 
Batson was intended, among other things, to prohibit 
the use of a race as a factor in jury selection, regard­
less of whether a minority is entirely excluded from 
the jury or the number of minority jury members is 
merely limited. See Walker v. Girdich, 410 F.3d 120, 
123 (2d Cir. 2005) (“[Ujnder Batson and its progeny, 
striking even a single juror for a discriminatory 
purpose is unconstitutional.”); accord Green v. Travis, 
414 F.3d 288, 297 (2d Cir. 2005); United States v. 
Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (stat­
ing that “[t]o establish a prima facie case, [the de­
fendant] did not need to show that the prosecution 
had engaged in a pattern of discriminatory strikes 
against more than one prospective juror. We have



176a

held that the Constitution forbids striking even a 
single prospective juror for a discriminatory pur­
pose.”); Jones v. Ryan, 987 F.2d 960, 972 (3d Cir. 
1993) (noting that the striking of even a single juror 
based on race violates the Constitution); Reyes v. 
Greiner, 340 F. Supp.2d 245, 266 (E.D.N.Y. 2004) (“[I]t 
is settled law that a Batson violation occurs where 
the prosecution or the defendant has been found to 
have struck a single juror on the basis of race, even 
where the prosecution or the defendant waived per­
emptory challenges, leaving other persons of that 
race on the jury.” (citations omitted)).

Next, respondent argues that the result in this 
case should be governed by the decisions in Overton v. 
Newton, supra, 295 F.3d 270 and Williams v. Burge, 
supra, 2005 WL 2429445 (Resp. Op. at 45-48). 
Although these cases have some similarity to this 
case, I conclude that they are both distinguishable 
and not controlling.

In Overton the Second Circuit rejected a claim by 
a habeas petitioner that a state trial judge had incor­
rectly concluded there was no prima facie case under 
Batson. The petitioner in Overton made his Batson 
challenge after two rounds of jury selection and after 
the prosecution had exercised peremptory challenges 
against seven of the eleven African-Americans poten­
tial jurors and three against non-African-Americans. 
295 F.3d at 273-74. The Batson challenge was not 
renewed at the conclusion of jury selection, and the 
record did not reveal what the actual composition of 
the jury was. Overton v. Newton, supra, 295 F.3d at



177a

279. The Court of Appeals found that the record 
before it did not establish an unreasonably erroneous 
decision by the Trial Court, stating:

Here, the prosecutor used four peremp­
tory challenges in the first round of jury 
selection and struck two of five African- 
American potential jurors from the venire. 
Three African-American jurors were seated.
In the second round, there were six African- 
American potential jurors in the box; one 
was struck for cause and the other five were 
excluded as a result of peremptory strikes by 
the prosecutor. At this point, before jury se­
lection was completed and before the above 
facts were even fully established on the rec­
ord, petitioner made his Batson challenge. It 
was at this stage that the trial court denied 
it; we cannot say that, in doing this, it 
unreasonably applied the Batson principle.

295 F.3d at 279.

In Williams, during the first round of jury selec­
tion, the prosecutor had used his first five peremptory 
challenges against African-American potential jurors 
when the defendant made a Batson motion. The trial 
judge found that the motion was premature at that 
point, stating:

I quite frankly feel that a prima facie case 
has not been made out. . . . Not at this point. 
[Five strikes is] not enough, in my judgment, 
to require the People to present me with 
non-contextural [sic]. It may be when we 
concluded the selection process for the first



178a

17 that I will revisit the issue, but right now,
no.

2005 WL 2429445 at *1. The first round of jury selec­
tion then continued, and the prosecutor exercised 
three additional peremptory challenges, all of which 
were directed at non-African-American potential 
jurors. Williams v. Burge, supra, 2005 WL 2429445 at 
*2.

Your Honor concluded that the Trial Judge’s 
determination that no prima facie Batson claim had 
been established was not an unreasonable application 
of federal law. Williams v. Burge, supra, 2005 WL 
2429445 at *6-7. Although your Honor expressed 
skepticism concerning whether denial of a Batson 
claim prior to the conclusion of jury selection could 
ever constitute an unreasonable application of federal 
law, this does not appear to have been the basis for 
the decision. Williams v. Burge, supra, 2005 WL 
2429445 at *6. Rather your Honor distinguished 
Williams’s claim from Green v. Travis, supra, 414 F.3d 
288 and from Batson itself on the ground that not all 
of the peremptory claims exercised by the prosecution 
were directed at minorities and the challenges were 
not used to eliminate an entire minority from the 
jury. Williams v. Burge, supra, 2005 WL 2429445 at 
* 6. I

I conclude that both Overton and Williams are 
distinguishable because in neither case did the prose­
cution direct its peremptory challenges solely at 
African-Americans, as the prosecutor did in this case.



179a

Moreover, nothing in Overton suggests that the Court 
of Appeals intended to overrule Alvarado, which 
unequivocally held that a disproportionate use of 
peremptory challenges against a minority can satisfy 
the requirement of a prima facie case under Batson. 
Although I appreciate that the Court of Appeals has 
repeatedly noted that Batson claims raised in habeas 
petitions are entitled to more lenient review than 
similar claims raised on direct appeals from federal 
convictions, the rate of challenge here -  100% of the 
challenges exercised against a minority group that 
made up only 52% of the panel — was sufficiently 
disparate to at least require the prosecution to proffer 
a racially neutral reason for its challenges.

Finally, respondent also offers hypothetical 
racially-neutral reasons for the prosecution’s peremp­
tory challenges (Resp. Op. at 52-53). Such after-the- 
fact suggestions are insufficient to remedy a Batson 
violation. “A Batson challenge does not call for a mere 
exercise in thinking up any rational basis. If the 
stated reason does not hold up, its pretextual signifi­
cance does not fade because a trial judge, or an ap­
peals court, can imagine a reason that might not have 
been shown up as false.” Miller-El v. Dretke, 545 U.S. 
231, 252 (2005); accord Rogers v. Artuz, 00 Civ. 2718 
(JBW), 03 Misc. 0066 (JBW), 2007 WL 2815692 at *6 
(E.D.N.Y. Sep. 24, 2007).

The prosecutor’s disproportionate strikes of black 
jurors, despite the fact that not all blacks were 
stricken from the jury, was sufficient to raise an 
inference of discrimination and, therefore, sufficient



180a

to establish a prima facie case under Batson. Thus, 
the Trial Court erred in not requiring the prosecutor 
to offer race-neutral reasons for her peremptory 
challenges and the appellate divisions’ finding other­
wise was an unreasonable application of clearly 
established federal law.

c. Relief
There are three options available to a court in 

fashioning a remedy for a petitioner’s successful 
habeas claim based on a state court’s Batson rulings.

When a state court fails to fulfill its duties 
under Batson, a federal court sitting in ha­
beas review has three options in its selection 
of a remedy. The federal court may “(1) hold 
a reconstruction hearing and take evidence 
regarding the circumstances surrounding the 
prosecutor’s use of the peremptory challenges 
. . . ; (2) return the case to the state trial 
court on a conditional writ of habeas corpus 
so that the state court could conduct the in­
quiry on its own; or (3) order a new trial.” 
Harris, 346 F.3d at 347 (citation omitted). 
There are some limits, however, to the 
district court’s discretion to choose among 
these remedial options. Most importantly, 
the Second Circuit has cautioned that “if ap­
propriate findings may be conveniently 
made” at a reconstruction hearing, “this 
should be done.” Id. at 348 (citation omitted). 
Thus, a district court has the discretion to



181a

order a new trial “only where it is demon­
strably true that the passage of time has im­
paired the trial court’s ability to make a 
reasoned determination of the prosecutor’s 
state of mind when the jury was selected.”
Id. (citation omitted).

Truesdale v. Sabourin, supra, 427 F. Supp.2d at 462, 
see also Tankleff v. Senkowski, 3 F. Supp.2d 278, 280 
(E.D.N.Y. 1998).

Despite the fact that approximately nine years 
have passed since petitioner’s trial, respondent 
reports that the prosecution is still capable of pre­
senting its reasons for its peremptory challenges at a 
reconstruction hearing (Resp. Op. at 56-57).

Accordingly, I respectfully recommend that the 
writ be granted on the basis of petitioner’s Batson 
claim unless, within ninety (90) days of the final 
resolution of this matter, the New York courts conduct 
a reconstruction hearing concerning the prosecution’s 
non-discriminatory reasons for the exercise of its 
peremptory challenges.

3. Prosecutor’s Introduction of Extrinsic 
Evidence that Petitioner Was Incarcer­
ated

Petitioner next claims that his Due Process 
rights were violated by the prosecution’s introduc­
tion of extrinsic evidence that petitioner was incar­
cerated in Florida for a period of time several 
months before the day of the crime charged (Pet.



182a

Mem. at 49). Petitioner argues that not only was the 
introduction of this evidence in violation of New York 
state’s evidentiary rules, but resulted in a “highly 
prejudicial inference of criminal propensity” that 
denied petitioner the right to a fair trial (Pet. Mem. 
at 49).

a. The Trial Testimony
Petitioner testified on his direct examination that 

he first met alibi witness John Torres during a two- 
week visit to Florida in December, 1995 (Trial Tr. at 
379-80). Petitioner returned to Florida in January or 
February of 1996 in the hopes of getting a job with 
John’s father (Trial Tr. at 381). Although, petitioner 
was unable to obtain work with John’s father, he 
stayed in Florida at the house of a female friend until 
mid-April (Trial Tr. at 382-84). When asked why he 
stayed in Florida until April when he had no job, 
petitioner responded that “honestly I was enjoying 
being out there. . . .  I was having a good time out 
there” (Trial Tr. at 384). Petitioner further testified 
that he left Florida in April because he missed his 
children in New York (Trial Tr. at 384).

On cross-examination, petitioner testified more 
specifically regarding his living situation during his 
trip to Florida from February to April. Petitioner 
stated that every day, throughout that entire trip, he 
stayed with his friend, Shannon Beane, until he left 
for New York in mid-April (Trial Tr. 394-98).



183a

Over defense counsel’s objection, the prosecution 
presented as a rebuttal witness Captain Bruce Bolton 
of the Volusia County Department of Correction, who 
testified that petitioner was housed at the Volusia 
County Department of Corrections from March 13, 
1996 until April 12, 1996 (Trial Tr. at 439). The Trial 
Judge also allowed the introduction of petitioner’s 
Florida arraignment photograph (Trial Tr. 452-54). 
No evidence was presented regarding the reason for 
petitioner’s incarceration, or the disposition of the 
Florida case (Pet. Mem. at 50). In addition the jury 
was not advised that petitioner disclosed the fact of 
his incarceration in Florida in his written, post-arrest 
statement (Post-Arrest Stmnt.).

During its summation, the prosecution argued 
that petitioner should not be believed because he had 
lied to the jury about his incarceration in Florida, and 
was, therefore, willing to lie to the jury about his alibi 
for the day of the murder (Trial Tr. at 535-38). The 
Trial Judge subsequently instructed the jury that 
Captain Bolton’s testimony was not offered to show 
guilt or that petitioner has a predisposition to commit 
crimes, but should be used “only in determining the 
credibility of witnesses who have appeared before 
you” (Trial Tr. at 565).

b. Exhaustion
On his direct appeal, petitioner, citing the Four­

teenth Amendment of the United States Constitution, 
argued that his due process right to a fair trial was



184a

violated by the introduction of Captain Bolton’s 
testimony.

The Appellate Division denied this claim on the 
merits, stating:

The trial court properly exercised its discre­
tion in permitting the People to introduce 
rebuttal evidence since it tended to disprove 
defendant’s alibi (see, People v Harrington,
262 AD2d 220, lv denied 94 NY2d 823; see 
also, People v. Marsh, 264 AD2d 647, lv de­
nied 94 NY2d 825). While the rebuttal evi­
dence concerned defendant’s whereabouts 
several months prior to the crime, it was not 
collateral because defendant had made his 
various travels to Florida over an extended 
period of time integral parts of his alibi de­
fense. Furthermore, the prejudicial effect of 
revealing to the jury that defendant had 
served 30 days in jail for an unspecified of­
fense was minimal, particularly in light of 
the court’s limiting instructions, and was 
outweighed by the probative value of the 
rebuttal evidence. In any event, were we to 
find any error, we would find it harmless 
in light of the overwhelming evidence of 
defendant’s guilt.

People v. Rosario, supra, 288 A.D.2d at 142-43, 733 
N.Y.S.2d 405 at 406.

Respondent first argues that petitioner did not 
properly present his federal claim to the State appel­
late courts, and, thus, the claim is procedurally 
barred from habeas review (Resp. Op. at 58).



185a

Respondent contends that even though petitioner’s 
brief to the Appellate Division cited to the Fourteenth 
Amendment of the United States Constitution and 
claimed that petitioner was denied a fair trial, peti­
tioner failed to explain how the evidence violated his 
federal Due Process rights (Resp. Op. at 60). 
Respondent argues that under Second Circuit prece­
dent, petitioner failed to put the state court on the 
required notice of his federal claim because to do so 
he “must demonstrate ‘(a) reliance on pertinent 
federal cases employing constitutional analysis, (b) 
reliance on state cases employing constitutional 
analysis in like fact situations, (c) assertion of the 
claim in terms so particular as to call to mind a 
specific right protected by the Constitution, and (d) 
allegation of a pattern of facts that is well within the 
mainstream of constitutional litigation’ ” (Resp. Op. at 
59 quoting Daye v. Attorney General o f State of New 
York, 696 F.2d 186, 194 (2d Cir. 1982)).

Unlike petitioner here, the petitioner in Daye did 
not, in his briefs to the state courts, cite the provision 
of the United States Constitution on which he relied. 
Daye v. Attorney Gen. o f the State of New York, supra, 
696 F.2d at 192. Thus, the issue in Daye was how the 
exhaustion requirement could be met in the absence 
of an express reference in state court to a provision in 
the federal constitution. In fact, the Second Circuit 
expressly stated that “[ojbviously if the petitioner has 
cited the state courts to the specific provision of the 
Constitution relied on in his habeas petition, he will 
have fairly presented his legal basis to the state



186a

court.” Daye v. Attorney Gen. o f the State of New York, 
supra, 696 F.2d at 192. In a more recent opinion, also 
cited by respondent, the Second Circuit held that a 
mere reference to a provision of the United States 
constitution in a point heading of a brief sufficiently 
asserts a federal claim even where the petitioner’s 
argument only refers to state law. Davis v. Strack, 
270 F.3d 111, 122 (2d Cir. 2001). Petitioner’s brief to 
the Appellate Division contains the exact same text 
that the Second Court found sufficient in Davis, 
namely, that the evidence of petitioner’s incarceration 
in Florida “DEPRIVED APPELLANT OF HIS DUE 
PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST., 
AMEND. XIV” (App. Div. Br. at i). See Davis v. 
Strack, 270 F.3d at 122.

Respondent also argues that petitioner failed to 
exhaust his federal claim in state court because his 
letter to the New York State Court of Appeals did not 
identify any federal, constitutional claims (Resp. Op. 
at 61). This argument is equally without merit. 
Petitioner’s letter to Chief Judge Kaye uses language 
substantially identical to that of the petitioner in 
Davis, and requested that the Court of Appeals 
“consider and review all issues outlined in defendant- 
appellant’s brief” (Jan. 2, 2002 Letter to Chief Judge 
Kaye, annexed as Ex. 3 to Resp. Op.). See also Davis 
v. Strack, supra. 270 F.3d at 122. “[Sjuch a request is 
‘sufficiently specific’ to present any federal constitu­
tional claim set forth in the Appellate Division brief 
to the state Court of Appeals, regardless of whether 
the defendant reiterates the claim in any subsequent



187a

letter to the court.” Davis v. Strack, supra, 270 F.3d at 
122, citing Morgan v. Bennett, 204 F.3d 360, 369-72 
(2d Cir. 2000). Since petitioner’s letter to Judge Kaye 
used the same language approved by the Second 
Circuit in Daye, petitioner fairly presented his consti­
tutional claim to the Court of Appeals, and he may 
assert his claim in this court.

Finally, the Appellate Division’s opinion clearly 
disposed of petitioner’s evidentiary claim on the 
merits. The Appellate Division’s judgment discussed 
the substance of the claim and did not assert any 
procedural issues. Accordingly, the Appellate Divi­
sion’s judgment is entitled to AEDPA’s deferential 
standard of review, and petitioner cannot obtain 
habeas relief on this issue unless that decision was 
either contrary to, or involved an unreasonable 
application of, clearly established federal law. 28 
U.S.C. § 2254(d)(1).

c. Analysis
Generally, erroneous evidentiary rulings do not 

rise to the level of a constitutional violation — the 
essential predicate for habeas relief. Estelle v. 
McGuire, 502 U.S. 62, 67-68 (1991); Sims v. Stinson 
101 F. Supp.2d 187, 194 (S.D.N.Y. 2000); Colon v. 
Johnson, 19 F. Supp.2d 112, 118 (S.D.N.Y. 1998); 
Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y.), 
aff’d, 71 F.3d 406 (2d Cir. 1995); Alvarez v. Scully, 
833 F. Supp. 1000, 1005 (S.D.N.Y. 1993). A habeas 
court will review a trial court’s admission of evidence



188a

“[o]nly where evidence ‘is so extremely unfair that its 
admission violates fundamental concepts of justice.’ ” 
Marsh v. Ricks, 02 Civ. 3449 (NRB), 2003 WL 145564, 
*3 (S.D.N.Y. Jan. 17, 2003) quoting Dowling v. United 
States, 493 U.S. 342, 352 (1990). The erroneous 
admission of evidence will rise to the level of constitu­
tional error only where the petitioner can show that it 
deprived him of a fundamentally fair trial, and in this 
way, of due process of law. See Taylor v. Curry, 708 
F.2d 886, 891 (1983); Alvarez v. Scully, supra, 833 F. 
Supp. at 1005-06. To amount to a denial of due pro­
cess, the evidence in question must have been “ ‘suffi­
ciently material to provide the basis for conviction or 
to remove a reasonable doubt that would have existed 
on the record without it.’ ” Dunnigan v. Keane, 137 
F.3d 117, 125 (2d Cir. 1998), quoting Johnson v. Ross, 
955 F.2d 178, 181 (2d Cir. 1992); Collins v. Scully, 755 
F.2d 16, 18-19 (2d Cir. 1985); see also Mitchell v. 
Herbert, 97 Civ. 5128 (DC), 1998 WL 186766 at *5 
(S.D.N.Y. April 20, 1998). Even if such constitutional 
error is established, habeas relief is warranted only 
where the petitioner demonstrates that the error had 
a “ ‘substantial and injurious effect or influence in 
determining the jury’s verdict.’ ” Brecht v. Abraham- 
son, 507 U.S. 619, 637-38 (1993), quoting Kotteakos v. 
United States, 328 U.S. 750, 776 (1946).

Counsel who seeks to challenge the credibility of 
a witness’ testimony on a collateral matter generally 
may not introduce extrinsic evidence, such as calling 
a subsequent witness, to contradict answers given by 
the witness whose credibility is under attack. See 4



189a

Jack B. Weinstein & Margaret A. Berger, Weinstein’s 
Federal Evidence § 607.06[3][a] (Joseph M. McLaugh­
lin, ed., Matthew Bender 2d ed. 2007). Petitioner 
argues that the Trial Court erred by allowing the 
rebuttal testimony of Captain Bolton because his 
testimony “was collateral and used only to challenge 
Petitioner’s credibility” (Pet. Mem. at 53). However, it 
is not necessarily erroneous to permit a witness to 
testify for the purpose of impeaching another witness’ 
testimony; “[t]he determinative question in deciding 
whether extrinsic evidence contradicting a witness’ 
testimony is admissible is not whether the contradict­
ing extrinsic evidence is material, but rather whether 
the assertions that the impeaching party seeks to 
contradict are themselves material or collateral.” 
Rosario v. Kuhlman, 839 F.2d 918, 925-26 (2d Cir. 
1988); see also People v. Schwartzman, 24 N.Y.2d 241, 
245, 299 N.Y.S.2d 817, 821, 247 N.E.2d 642, 644 
(1969) (“[WJhen a witness testifies concerning a fact 
material to the case, he may be contradicted either by 
cross-examination or by introduction of other evi­
dence.”). Facts that are relevant to a case for reasons 
other than mere credibility are material and not 
collateral. Rosario v. Kuhlman, supra, 839 F.2d at 
926.

Petitioner testified on his direct examination that 
he made three separate trips to Florida in an attempt 
to make a life for himself there (Trial Tr. at 380-83). It 
was during these visits to Florida that petitioner 
came to know his alibi witnesses, John Torres and 
Jenine Seda. During his second visit, from February



190a

to mid-April of 1996, petitioner testified that he 
stayed at a friend’s house near the home of John 
Torres and Jenine Seda, both of whom he saw fre­
quently during that time (Trial TV. at 383). Petition­
er’s presence in John and Seda’s neighborhood and 
his frequent association with them for the entirety of 
his second trip to Florida would tend to show that 
John and Seda were more capable then they might 
otherwise be of vouching for Petitioner’s whereabouts 
during his third trip in June. Thus, petitioner made 
his second sojourn in Florida a relevant material 
piece of his alibi defense. Moreover, when the prose­
cution cross-examined petitioner about the specifics of 
where he stayed in Florida from March to April, 
defense counsel made no objections to the relevancy 
of those questions. Since petitioner’s whereabouts 
from March through April of 1996 were material and 
relevant to his alibi defense, the Trial Court did not 
err by permitting the introduction of extrinsic evi­
dence to contradict petitioner’s testimony on that 
matter.

Not only was it permissible to introduce extrinsic 
evidence impeaching petitioner’s testimony about his 
living arrangements because it was relevant testimony, 
but the evidence was also admissible because peti­
tioner had opened the door for its introduction. Peti­
tioner testified on direct examination that he “stayed 
[at Ms. Beane’s house] until April,” and the reason 
why he remained in Florida until the middle of April, 
even though he had not found employment, was 
because he was “having a good time” (Trial TV. at



191a

384). “[Wjhere a defendant, in his direct testimony, 
falsely states a specific fact, the prosecution will not 
be prevented from proving, either through cross- 
examination or by calling its own witnesses, that he 
lied as to the fact.” United States v. Beno, 324 F.2d 
582, 588 (2d Cir. 1963) citing Walder v. United States, 
347 U.S. 62, 74 (1954); accord United States, v. Bene­
detto, 571 F.2d 1246, 1250 (2d Cir. 1978). This is so 
regardless of whether the issue is collateral, as “a 
defendant should not be allowed to profit by a gratui­
tously offered misstatement.” United States v. Beno, 
supra, 324 F.2d at 588. Because petitioner testified 
falsely on his direct examination about where and 
why he stayed in Florida during his second trip, it 
was not improper for the Trial Judge to permit the 
prosecution to offer Captain Bolton’s testimony 
regarding petitioner’s incarceration.14

Petitioner also argues that there was no need for 
the prosecution’s rebuttal evidence because Rosario 
was not dishonest in his testimony -  “no one could 
have reasonable [sic] expected petitioner to testify

14 Petitioner cites People v. Goggins, 64 A.D.2d 717, 717-18, 
407 N.Y.S.2d 531, 532 (2d Dep’t 1978), for the proposition that 
that a prosecution’s introduction of extrinsic evidence of a 
collateral issue to attack a defendant’s credibility deprives the 
defendant of a fair trial (Pet. Mem. at 52). That case, however, 
involved extrinsic evidence that challenged testimony the 
defendant gave only on cross-examination. People v. Goggins, 
supra, 64 A.D.2d at 717, 407 N.Y.S.2d at 531. The case at bar is 
distinguishable in that petitioner testified falsely during both 
his direct and his cross-examinations.



192a

that he ‘stayed’ in a county jail when asked where he 
lived during his second trip to Florida. It is entirely 
consistent to ‘live’ in a residence while being ‘held’ 
in a correctional facility” (Pet. Mem. at 54). Even if 
I were to accept this logic, the argument still over­
looks the nature of petitioner’s testimony during his 
cross-examination:

Q: How long did you stay with Miss Beane?

A: I stayed at her house until I came back to
New York City.

Q: And you were in her house for the entire 
time?

A: Yes.

Q: And that was from March or February?

A: From February.

Q: Until March?

A: It’s passed March.

Q: Into April in fact, isn’t that correct?

A: Yes.

Q: And during that time from February when
you arrived there until you left for New York 
in April, you are telling this jury you were 
living with Miss Beane?

A: I was staying with her. That’s correct.



193a

Q: And you would stay there on a daily basis,
correct?

A: Yes.
*  *  *

Q: You weren’t staying with Johnny Torres in
April?

A: No, I was not. I was staying with Shannon. I
came back on the 15th. I got here a Monday 
[sic]. No, I got here on Sunday. It was the 
14th. I started working on the Monday. 
That’s how come I remember that date.

Q: But, for the first two weeks in April -

A: Yes

Q: When you were -

A: No. I was staying with Shannon and, yes, I
did see Johnny.

Q: So, Mr. Rosario, for those first two weeks of
April that you were in Florida -

A: [Y]eah.
Q: -  you were with Shannon and not with

Johnny Torres, is that correct?

A: No, I wasn’t, but I did see Johnny in Florida.

Q: In March of 1996, you were in Florida,
correct?

A: Yes.



194a

Q: And again, you were with Shannon and Not
Johnny Torres?

A: Correct

(Trial Tr. 394-98). Petitioner did not just testify that 
he “stayed” and “lived” with Ms. Beane while he was 
incarcerated. Petitioner agreed that from February 
until he left Florida in mid-April, he was “in [Ms. 
Beane’s] house for the entire time,” and that he would 
“stay [at Ms. Beane’s house] on a daily basis” (Trial 
Tr. at 394-397). I cannot agree that petitioner’s testi­
mony regarding his whereabouts from March until 
mid-April of 1996 was truthful or even substantially 
truthful; the simple truth is that even though peti­
tioner stayed with Ms. Beane during his second trip 
to Florida, the last month of that trip was spent not 
at her home, but in a correctional facility. Thus, 
petitioner’s testimony during cross, coupled with his 
misleading testimony on direct (discussed on page 83, 
above) gave cause for the prosecution’s rebuttal 
evidence.

Petitioner also asserts that the rebuttal evidence 
rendered his trial unfair and violated his Due Process 
rights because as a result of that evidence “the jury 
inevitably perceived him as a bad person with the 
propensity to commit crimes, such as the murder at 
issue” (Pet. Mem. at 53). To protect petitioner from 
such an adverse inference, the Trial Judge issued a 
limiting instruction to the jurors that they were not 
to consider evidence of Rosario’s incarceration as 
evidence of a propensity to commit crimes (Trial Tr. at



195a

565). Jurors are presumed to abide by a trial judge’s 
instructions to limit consideration of evidence. Zafiro 
v. United States, 506 U.S. 534, 540-41 (1993) 
(“[J]uries are presumed to follow their instructions” 
quoting Richardson v. Marsh, 481 U.S. 200, 211 
(1987)); accord United States v. Stewart, 433 F.3d 273, 
307 (2d Cir. 2006) (noting it is a “well-settled proposi­
tion” that jurors are presumed to follow limiting 
instructions). Petitioner argues that a limiting in­
struction such as this, “does little -  if anything -  to 
mitigate the severe and wholly unnecessary prejudice 
that subsequently infected the trial” (Pet. Mem. at 
54). As petitioner points out, in some situations a 
limiting instruction to a jury is unlikely to prevent 
the average juror from inferring that a prior convic­
tion shows a defendant has the propensity to commit 
the crime with which he is charged (Pet. Mem. at 54 
citing United States v. Puco, 453 F.2d 539, 542 (2d 
Cir. 1971)). Such an inference, despite a limiting 
instruction, is likely to arise where the government 
seeks to impeach a criminal defendant with evidence 
of a conviction for a crime similar to the crime with 
which he or she is currently being tried. See United 
States v. Puco, supra, 453 F.2d at 542; United States 
v. Ortiz, 553 F.2d 782, 784 (2d Cir. 1977). The prejudi­
cial effect of evidence of prior crimes is also more 
likely to substantially outweigh its probative value 
when the prior crime “negates credibility only slightly.” 
United States v. Puco, supra, 453 F.2d at 542 quoting 
United States v. Palumbo, 401 F.2d 270, 273 (2d Cir. 
1968); see also Simmons v. Ross, 965 F. Supp. 473, 
480 (S.D.N.Y. 1997).



196a

Evidence of petitioner’s Florida incarceration at 
his murder trial does not, however, rise to the level of 
being substantially prejudicial under either theory. A 
month-long incarceration, regardless of what a juror 
may infer regarding its cause, is unlikely to be per­
ceived by a juror as suggesting that a defendant 
committed murder, attempted murder or another 
similar violent offense. Evidence of petitioner’s incar­
ceration was also probative of petitioner’s credibility, 
since it served to impeach his testimony that he was 
living with a friend during the time he was in jail. 
Thus, the prosecution’s rebuttal evidence did not 
result in unfair prejudice that substantially out­
weighed the evidence’s probative value, and it did not 
render petitioner’s trial fundamentally unfair in 
violation of his Due Process rights.

Lastly, it is of no moment that the jury was not 
informed that petitioner had initially told the police 
about his incarceration in Florida. The fact that 
petitioner reported his incarceration to the police is 
irrelevant to whether petitioner mislead the jury at 
trial. Petitioner fails to explain how informing the 
jury of this information could have rehabilitated him.

For all the foregoing reasons, I conclude that the 
Appellate Division’s decision that the Trial Judge 
properly acted within his discretion when he allowed 
the prosecution’s rebuttal evidence was not contrary 
to, or an unreasonable application of, clearly estab­
lished federal law. Thus, this claim should be denied.



197a

4. Actual Innocence Claim
Finally petitioner claims that his habeas petition 

should be granted because he is actually innocent of 
the murder for which he was convicted. This claim is 
denied on the merits.

The doctrine of actual innocence in habeas claims 
developed to prevent a “miscarriage of justice” where 
procedural rules might otherwise prevent a federal 
court from considering a claim by a petitioner who is 
factually innocent of the crime for which he or she 
was convicted. Schlup v. Delo, 513 U.S. 298 (1995), 
citing Murray v. Carrier, 477 U.S. 478, 495 (1986); 
Kuhlmann v. Wilson, A ll U.S. 436 (1986); Smith v. 
Murray, A ll U.S. 527 (1986). The doctrine mitigates 
the harshness of procedural requirements intended to 
protect the interests of finality and comity that are 
threatened by successive or untimely federal review 
of state convictions. Doe v. Menefee, 391 F.3d 147, 160 
(2d Cir. 2004).

Petitioner’s claim of actual innocence was not 
raised in state court and is asserted for the first time 
in his habeas petition. However any procedural 
default that might otherwise exist would not bar a 
meritorious claim of actual innocence.15 Doe v.

16 This is true even after the passage of AEDPA, which 
codifies aspects of the actual innocence doctrine in provisions not 
relevant to this case. See Doe v. Menefee, supra, 391 F.3d at 161 
citing 28 U.S.C. §§ 2244(b); 2254(e)(2).



198a

Menefee, supra, 391 F.3d at 161, citing Schlup v. Delo, 
supra, 513 U.S. at 315-17.

To prevail on a claim of actual innocence, a 
petitioner must present new reliable evidence in light 
of which it is more likely than not that no reasonable 
juror would have convicted petitioner. Schlup v. Delo, 
supra, 513 U.S. at 327; accord Murden v. Artuz, 497 
F.3d 178, 194 (2d Cir. 2007). See also House v. Bell, 
supra, 126 S.Ct. at 2078 (upholding the Schlup 
standard to defaulted habeas claims despite the 
passage of AEDPA-). To meet the Schlup standard, a 
petitioner must “support his allegations of constitu­
tional error with new reliable evidence — whether it 
be exculpatory scientific evidence, trustworthy eye­
witness accounts, or critical physical evidence -  that 
was not presented at trial.” Schlup v. Delo, supra, 513 
U.S. at 324; accord Guity v. Ercole, 07 Civ. 728 (RPP), 
2007 WL 3284694 at *8 (S.D.N.Y. Nov. 6, 2007). Thus, 
a reviewing court that determines new evidence is 
reliable must analyze the claim of innocence in light 
of the entire record, including evidence that may have 
been inadmissible at trial. Doe v. Menefee, supra, 391 
F.3d at 162. After, making its own credibility assess­
ments, if the court then concludes it is more likely 
than not that no reasonable juror would have found 
petitioner guilty beyond a reasonable doubt, the 
actual innocence standard is satisfied and the court 
may review the constitutional challenge. Doe v. 
Menefee, supra, 391 F.3d at 163; accord Sacco v. 
Greene, 04 Civ. 2391 (CLB), 2007 WL 432966 at *7 
(S.D.N.Y. Jan. 30, 2007).



199a

In support of petitioner’s actual innocence claim, 
petitioner cites the total of nine witnesses (Jenine 
Seda, John Torres, and the seven witnesses presented 
at his post-conviction hearing) who testified regard­
ing petitioner’s presence in Florida on or around the 
date of the murder. Petitioner also relies on the 
documentary evidence that petitioner was stopped by 
police in Florida on May 30 and traveled by bus from 
Florida to New York on June 30 (Pet. Mem. at 57). 
Petitioner argues that in light of the totality of the 
evidence, no reasonable juror would find that peti­
tioner returned to New York from Florida after May 
30, failed to contact his fiancee, Minerva Godoy and 
their children, engaged in a random argument with 
the victim after which he shot the victim in the head, 
and traveled back to Florida only to return days later 
and turn himself in to the police. In addition, in order 
to find petitioner guilty, a juror would have to find 
that John Torres, Jenine Seda, Fernando Torres and 
Chenoa Ruiz all lied under oath when testifying that 
they each saw petitioner in Florida on June 19 (Pet. 
Mem. at 57-58).

As I stated in my analysis of petitioner’s ineffec­
tive assistance of counsel claim, the totality of evidence 
presented at petitioner’s trial and post-conviction 
hearing raised a reasonable probability that the jury 
could have found petitioner not guilty of murder had 
Fernando and Chenoa testified. However, in assessing 
all of the evidence presented at petitioner’s trial and 
post-conviction hearing, I cannot conclude petitioner’s 
evidence satisfies the substantially higher standard



200a

necessary to sustain a claim of actual innocence. 
Murden v. Artuz, supra, 497 F.3d at 194 (Actual 
innocence “requires a stronger showing than the 
showing of prejudice necessary to prevail on an 
ineffective assistance claim.” (internal quotation 
marks omitted)). Petitioner’s evidence does not show 
that it is more likely than not that no reasonable 
juror could have found petitioner guilty for the June 
19 murder.

First, in light of the evidence, it would not be 
unreasonable for a juror to find that petitioner was in 
fact in Florida in June of 1996, then returned to New 
York in the middle of the month, only to flee after the 
commission of Collazo’s murder. Petitioner freely 
admitted that he traveled back and forth to Florida 
on a number of occasions with only brief stays in New 
York between those trips (Trial Tr. at 377-80, 386-87, 
399). It is likewise not implausible that petitioner 
would immediately flee New York after committing a 
murder and later turn himself in to the police, who 
were already looking for him, in the hope of prevail­
ing on an alibi defense. At trial the prosecution’s 
eyewitnesses, Sanchez and Davis, testified that they 
were very confident when recognizing petitioner as 
the shooter (Trial Tr. at 165, 66), and their testimony 
has not been impeached. John Torres, Jenine Seda 
and Chenoa Ruiz were all part of a group of friends to 
which petitioner belonged, and Fernando Torres is 
the father of two of those friends. Thus these alibi 
witnesses were all still subject to impeachment based 
on their relationship to petitioner. In light of all the



201a

evidence!,] I cannot conclude that no reasonable juror 
would credit the prosecution’s witnesses over the 
greater number of defense witnesses. See 1 Hon. 
Leonard B. Sand, John S. Siffert, Walter P. Loughlin 
& Steven A. Reiss, Modern Federal Jury Instructions 
Inst. 4-3 (2005) (A jury is free to credit the side offer­
ing a smaller number of witnesses.).

Furthermore, in making an actual innocence 
determination the habeas court must determine 
“whether the new evidence on which the actual 
innocence claim is based is reliable.” Doe v. Menefee, 
supra, 391 F.3d at 165. Chenoa’s testimony at peti­
tioner’s 440 hearing appears to conflict with John 
Torres’ testimony at petitioner’s trial. Chenoa testi­
fied that she recalled seeing petitioner and John at 
Seda’s house on June 19 because she had taken Seda 
to a doctor’s appointment at approximately 11:30 a.m. 
and did not return until later in the afternoon (Hrg. 
Tr. at 548, 550). John testified that Seda worked on 
June 19 (Trial Tr. at 349). In addition, while the 
prosecution’s witnesses testified to events that occurred 
over two years prior, petitioner’s post-conviction 
hearing witnesses testified to events that occurred 
about six years prior. Even where petitioner’s witnesses 
may have absolutely no intention of misleading the 
court, six-year old memories are inherently not as 
reliable as two and a half-year old ones.

Thus, petitioner has failed to establish that “in 
light of all the evidence, it is more likely than not 
that no reasonable juror would have convicted him,” 
and his claim of actual innocence should be denied.



202a

See Bousley v. United States, 523 U.S. 614, 623 
(1998).

IV. Conclusion
Accordingly, for all the foregoing reasons, I 

respectfully recommend that petitioner’s petition for 
a writ of habeas corpus be granted with respect to his 
claim that the prosecutor’s use of peremptory chal­
lenges established a prima facie case of racial dis­
crimination unless within ninety (90) days of the final 
resolution of this proceeding, the New York State 
courts conduct a reconstruction hearing and conclude 
that race did not play a role in the prosecution’s 
exercise of its peremptory challenges. I recommend 
that the habeas petition be denied with respect to 
petitioner’s claims that (1) he received ineffective 
assistance of counsel, (2) the Trial Court erred in 
allowing the prosecutor to introduce extrinsic evi­
dence of his Florida incarceration, and (3) the 
evidence demonstrates he is actually innocent of the 
crime.

Since petitioner has made a substantial showing 
of the denial of a constitutional right with respect to 
his claim of ineffective-assistance, I also recommend 
that a certificate of appealability be issued for that 
claim but that no certificate of appealability be issued 
for his evidentiary and actual innocence claims. 28 
U.S.C. § 2253. To warrant the issuance of a certificate 
of appealability, “petitioner must show that reason­
able jurists could debate whether . . . the petition



203a

should have been resolved in a different manner or 
that the issues presented were adequate to deserve 
encouragement to proceed further.” Middleton v. 
Attorneys Gen., 396 F.3d 207, 209 (2d Cir. 2005) (per 
curiam) (internal quotation marks omitted); see also 
Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005) (per 
curiam). For the reasons set forth above, I conclude 
that there could be a difference of opinion among 
reasonable jurists that petitioner’s federal rights 
were violated with respect to his ineffective- 
assistance claim, but not with respect to his eviden­
tiary or actual innocence claims.

V. Objections
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 

72(b) of the Federal Rules of Civil Procedure, the 
parties shall have ten (10) days from the date of this 
Report and Recommendation to file written objec­
tions. See also Fed.R.Civ.P. 6(a) and 6(e). Such objec­
tions (and responses thereto) shall be filed with the 
Clerk of the Court, with courtesy copies delivered to 
the chambers of the Honorable P. Kevin Castel, 
United States District Judge, 500 Pearl Street, Room 
2260, New York, New York 10007, and to the cham­
bers of the undersigned, 500 Pearl Street, Room 750, 
New York, New York 10007. Any requests for an 
extension of time for filing objections must be 
directed to Judge Castel. FAILURE TO OBJECT 
WITHIN TEN (10) DAYS WILL RESULT IN A 
WAIVER OF OBJECTIONS AND WILL PRECLUDE 
APPELLATE REVIEW. Thomas v. Am, 474 U.S. 140



204a

(1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 
F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 
jr 2d 298, 300 (2d Cir. 1992); Wesolek u. Canadair 
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. 
Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

Dated: New York, New York 
December 28, 2007

Respectfully submitted,
/si Henry Pitman_________________

HENRY PITMAN
United States Magistrate Judge

Copies mailed to:
Christopher Blira-Koessler, Esq.
Assistance [sic] District Attorney
Office of the Bronx County District Attorney’s Office
198 East 161st Street
Bronx, NY 10451
Carl H. Loewenson, Jr.
Morrison and Foerster LLP 
1290 Avenue of the Americas 
New York, NY 10104
Jin Hee Lee
Morrison and Forester LLP 
1290 Avenue of the Americas 
New York, NY 10104
Jodi K. Miller 
Morrison and Forester LLP 
1290 Avenue of the Americas 
New York, NY 10104



205a

APPENDIX E
SUPREME COURT OF THE STATE OF NEW YORK 
APPELLATE DIVISION : FIRST DEPARTMENT
BEFORE: Hon. DAVID FRIEDMAN

Justice of the Appellate Division

................... ....... ............ X
The People of the State of 
New York,

-  against -  
Richard Rosario,

Defendant.
................... -........ X

M-1966
Ind. No. 5142/96
CERTIFICATE 
DENYING LEAVE

(Entered Sept. 8, 2005)
I, DAVID FRIEDMAN, a Justice of the Appellate 

Division, First Judicial Department, do hereby certify 
that, upon application timely made by the above- 
named defendant for a certificate pursuant to Crimi­
nal Procedure Law, section 460.15, and upon the 
record and proceedings herein, there is no question of 
law or fact presented which ought to be reviewed by 
the Appellate Division, First Judicial Department, 
and permission to appeal from the order of the 
Supreme Court, Bronx County, entered on or about 
April 4, 2005, is hereby denied. To the extent that 
defendant seeks poor person relief and assignment of 
counsel, that motion is hereby denied as academic.



206a

Dated: New York, New York 
September 1, 2005

/s/ David Friedman____________
DAVID FRIEDMAN
Justice of the Appellate Division



207a

APPENDIX F
SUPREME COURT OF THE STATE OF NEW YORK 
COUNTY OF THE BRONX:

......... ................. ................. X
THE PEOPLE OF THE DECISION AND ORDER 
STATE OF NEW YORK

-  AGAINST -
Richard Rosario

DEFENDANT

DAVIDOWITZ, J.:

Defendant was convicted after trial on November 
23, 1998 of murder in the second degree. He alleges 
that both pre-trial, and trial counsel rendered ineffec­
tive assistance to him for the following reasons, and 
moves for an order setting aside the verdict pursuant 
to CPL 440.10(1): they did not seek out, interview and 
call additional witnesses who could have testified 
that he was in Florida before, at the time of the crime 
and for a period after the crime was committed; they 
failed to send an investigator to Florida to investigate 
his alibi defense although the court approved travel 
expenses for this purpose; his trial counsel did not 
investigate, and pursue at trial evidence this sug­
gested that another person had a motive to harm the 
deceased; and the witnesses who could support his 
alibi constituted newly discovered evidence; and he is 
innocent of the charges.

INDICTMENT 
NO. 5142/96



208a

The Homicide and the Proceedings Before Trial
George Callazo was murdered on June 19, 1996. 

Two eye-witnesses — Robert Davis and Michael San­
chez — were interviewed at the scene and later at the 
43rd precinct. Each selected defendant’s photo from a 
book of photos and identified him in a line-up on July 
9, 1996 as the shooter.

Defendant was notified that the police were 
looking for him. He left Florida on June 30, 1996 and 
arrived in New York on July 1, when he was arrested. 
He told the police that he was in Florida on June 19, 
1996 and for several months before that date. He 
denied his involvement in the homicide, and provided 
the names of thirteen potential alibi witnesses, their 
Florida addresses and, in some cases, their telephone 
numbers.

Joyce Hartsfield, Esq. was appointed, pursuant to 
Article 18b of the County Law, to represent defendant 
on July 10, 1996. He was arraigned on the indictment 
on August 13 and Ms. Hartsfield filed an omibus [sic] 
motion on October 30. She also requested a court 
order for an investigator to travel to Florida to inves­
tigate defendant’s alibi defense and, in support of this 
request, submitted an affidavit of Jesse Franklin, a 
private investigator. Ms. Franklin stated that she 
was unable at long distance to complete an effective 
investigation and, therefore, it was critical that she 
travel to Florida to interview witnesses. The court’s 
written decision on the omnibus motion on November



209a

25 did not address this request and a Florida investi­
gation was not conducted.

Steven Kaiser, Esq. replaced Hartsfield as de­
fendant’s counsel on February 18, 1998. He did not 
retain an investigator to go to Florida. The trial 
began on November 10, 1998.

The Trial
Ten witnesses testified for the People: four police 

officers, a medical examiner, three eye-witnesses -  
Robert Davis, Michael Sanchez and Jose Diaz -  and a 
rebuttal witness -  Captain Bruce Bolton, of the Valise 
County, Florida Department of Corrections.

Mr. Davis, a porter in a building near the crime 
scene, testified that he was sweeping near the rear of 
the building when he heard angry words: “you won’t 
do this no more.” He turned and saw three men, one 
of whom took a gun from his jacket pocket, held it 
four to five inches from Mr. Callazo’s head, shot him 
and ran. Mr. Davis was standing approximately two 
car lengths from the shooting. He described the 
shooter as a light-skinned Hispanic man, between six 
foot and six foot one inches tall, skinny with short 
curly hair, a mustache, and side burns and wearing a 
short sleeved striped shirt. He identified defendant as 
the shooter in a line-up.

Mr. Sanchez was a friend of the deceased and 
was with him at the time of the shooting. As he and 
Mr. Callazo were walking on White Plains Road, they



210a

were approached from the opposite direction by two 
men, a black and an Hispanic. For a few minutes, 
angry words were exchanged after which Sanchez 
and Callazo walked away. Moments later the His­
panic man approached from behind, held a chrome 
revolver in his hand and, standing two inches from 
Mr. Callazo, shot him in the head. The shooter ran 
toward White Plains Road. Mr. Sanchez described 
him as a tall skinny Hispanic with a mustache and 
goatee and a striped shirt. He too identified defen­
dant in a line-up as the shooter.

Jose Diaz was part owner of a hot dog truck 
parked on White Plains Road. He heard four men 
arguing for almost ten minutes. They were approxi­
mately twenty-eight feet away from him. After the 
argument he heard one shot but did not see the 
shooting. Mr. Diaz said that he might be able to 
recognize the shooter but that he was not completely 
sure. He did not identify defendant.

Detective Gary Whitaker interviewed Mr. San­
chez and Mr. Davis at the 43rd precinct. According to 
his report, based on the interview with Mr. Sanchez, 
the gun was a black revolver and a description of the 
shooter did not include facial hair.

Captain Bruce Bolton, the custodian of records 
for the county Jail in Daytona, Florida testified that 
defendant was incarcerated in the Vales County jail 
from March 13, 1996 to April 12, 1996. This testi­
mony was offered to rebut defendant’s account that



211a

he was living with a woman named Shannon Bean 
from February to April, 1996.

The defense called two alibi witnesses -  Janine 
Seda and John Torres -  and Detective Richard Mar­
tinez, who had testified on the People’s direct case. 
Defendant testified on his own behalf.

Ms. Seda, John Torres’ girlfriend, testified that 
she met defendant through Mr. Torres in late Decem­
ber 1995. Defendant stayed at their apartment from 
the end of April, or beginning of May 1996 until June 
20 1996, when she was admitted to the hospital to 
give birth to her first child. She returned home on 
June 21 and saw defendant at her home after that 
date when he came to see the baby. She learned of 
defendant’s arrest in September or October 1996. An 
attorney called her in October 1997, while she was 
staying in Pennsylvania and asked her if she would 
testify for defendant. She agreed when she was told 
that the crime date was June 19, 1996 because she 
knew that on that date defendant was in her home.

John Torres met Defendant in December 1995 
through his brother Robert. Defendant lived with John 
and Jenine from the end of May until June 19, 1996 
when he moved next door to Robert’s house. On June 
19 he and defendant spent most of the day looking for 
car parts for John’s car. He saw defendant through 
the end of June when defendant left for New York.

In July or August he received a telephone call 
from defendant’s family telling him that defendant 
had been arrested for murder.



212a

Defendant testified that he stayed with Jenine 
and John for about one month prior to the birth of 
their son on June 20, 1996. On June 19 he spent the 
day looking for parts for John’s car. He learned from 
his sister that the police wanted to question him 
about a murder. He took a bus to New York on June 
30, 1996 and called the police when he arrived on 
July 1. Defendant said he would surrender the next 
day. The police arrested him at his mother’s house on 
July 1.

Detective Richard Martinez testified that he in­
terviewed both Mr. Sanchez and Mr. Davis at the 
precinct and prepared a police report (DD-5) of the 
interview. Sanchez described the shooter as an His­
panic, with olive skin tone and about six feet tall. 
Martinez did not ask Sanchez if the shooter had facial 
hair and there was nothing in the report that indi­
cated that the shooter had facial hair.

Defendant was convicted of murder in the second 
degree (RL. §125.25[1]) on November 23, 1998. He 
was sentenced on December 17, 1998 to a term of 
twenty-five years to life. The conviction was affirmed 
by the Appellate Division (288 AD 2d 1423) and leave 
to appeal was denied by the Court of Appeals (97 
N.Y. 2d 760).

The Motion
Defendant moved to vacate his conviction, pursu­

ant to CPL §440.10, on the grounds that he received 
ineffective assistance of counsel. He alleged that: his



213a

attorneys did not investigate or obtain additional alibi 
witnesses from Florida; these witnesses constituted 
newly discovered evidence that he was in Florida on 
the date of the crime; Mr. Kaiser should have investi­
gated a report that someone had once threatened the 
deceased and cross-examined witnesses on this issue 
at trial; and he is actually innocent of this crime. The 
People replied that defendant was provided with 
meaningful representation; that the statements of 
additional alibi witnesses do not qualify as newly 
discovered evidence; and that the trial evidence of 
guilt was very strong.

Affirmations were also submitted by defendant’s 
attorneys. Mr. Kaiser stated that Joyce Hartsfield 
told him “that the court had specifically denied her 
request to send an investigator to Florida”. Accord­
ingly, he “worked as best he could by telephone and 
mail, to secure people who could testify to defendant’s 
presence in Florida at the time of the homicide.” Ms. 
Hartsfield stated that she did not recall telling Mr. 
Kaiser that the travel request had been denied, or 
why the investigator did not travel to Florida before 
she was relieved.

The court obtained minutes of calendar calls. 
Justice Joseph Fisch, during the proceedings on March 
19, 1997, granted Ms. Hartsfield’s application to send 
an investigator to Florida. Mr. Kaiser then submitted 
another affirmation which stated that, after reading 
the transcript of March 19, and Ms. Hartsfield’s 
affirmation of January 29 2004, his recollection was 
unclear as to the source of his belief that the court



214a

denied Ms. Hartsfield’s request. Nevertheless, he did 
operate on that belief, particularly since no investiga­
tor had gone to Florida. A hearing on these issues was 
ordered on February 19, 2004.

The Hearing
The hearing began on August 3, 2004 and ended 

on September 30, 2004. Defendant called seven 
witnesses — Fernando Torres, Ricardo Ruiz, Minerva 
Godoy, Chenoa Ruiz, Denise Hernandez, Lisette 
Rivero, and Michael Serrano -  who testified about his 
whereabouts in Florida in general in the Spring, and 
June, 1996, the attorneys who represented him before 
and during the trial — Joyce Hartsfield and Steven 
Kaiser -  and the investigator who was retained by 
Ms. Hartsfield to work on the case -  Jessie Franklin. 
The relevant elements and portions of their testimony 
are summarized below.

Fernando Torres is the father and father-in-law 
of the alibi witnesses who testified for defendant at 
his trial -  John and Jenine Torres. He saw defendant 
in Deltona, Florida outside defendant’s apartment on 
June 20, 1996, when his grandchild was born, and on 
June 19 when he, defendant and his son went to an 
auto discount store to purchase parts for his son’s car, 
which was disabled, and on June 21 at his son’s 
house. He did not see defendant again after June 21.

Mr. Torres learned that defendant had been 
arrested for a murder in the beginning of July 1996, 
and that the murder occurred on June 19, 1996,



215a

several years later when his family and their friends 
discussed it in his presence. He agreed on cross- 
examination that he told one of defendant’s attorney’s 
on April 15, 2004 that the incident involving the 
disabled car occurred three or four days before his 
grandchild was born on June 20. He did not remem­
ber talking to Mr. Kaiser about the case. A trip to 
New York to testify for defendant would have consti­
tuted a financial hardship. His son and daughter- 
in-law were living in Florida when they came to 
New York to testify, not in Pennsylvania, where 
they moved in 1997.

Ricardo Ruiz was a friend of defendant, his 
girlfriend and the Torres’. He spent at least five days 
a week with them in a parking lot near their home. 
Defendant slept at John Torres’ house since he had no 
other place to stay. He did not remember the events of 
June 19, and 21 and was unclear about June 20. But 
he recalled that defendant left Florida about one 
month after John Torres’ baby was born and that he 
saw him in Deltona before and the day after the baby 
was born. The date of the baby’s birth -  June 20 -  
was provided to him recently. He was not certain how 
long before June 20 that he saw defendant.

Chenoa Ruiz was married to Robert Torres and 
lived at 111 Carribean Street in Deltona in 1996, next 
door to John and Jenine Torres. She saw defendant 
on June 18 with John Torres when she took Jenine to 
a doctor’s office for an appointment, on June 19 at the 
apartment complex and again on June 21 on the 
street. Jenine was angry with defendant and did not



216a

want him to come to the hospital after the baby was 
born.

Ms. Ruiz first learned about defendant’s arrest in 
the middle of July for a murder that occurred on June 
19. She remembered the events of June 19 because 
John and Jenine’s baby was born the next day. She 
did not speak to anyone about this information and 
no one contacted her, except for an investigator three 
or four years later. However, a written statement, 
which she prepared on November 10, 2002, only 
reported that she saw defendant on June 19; it did 
not refer to her visit to the hospital on June 18, the 
doctor on June 19 or the birth of the Torres’ baby on 
June 20.

Ms. Ruiz agreed to take a polygraph examina­
tion; however, an investigator’s report stated that she 
was ill and refused, which, she testified, was not true. 
She remembered the defendant as he was a spot­
light” and she saw him frequently, although she was 
unaware that defendant traveled between Florida 
and New York between February and the end of June, 
1996. He spent a lot of time outside of the Torres’ 
residence. Defendant returned to New York sometime 
between June 20 and the beginning of July 1996.

Minerva Godoy worked for Blue Cross, and Blue 
Shield, lived in Queens and was the mother of two of 
defendant’s children. The defendant left for Florida in 
May 1996 to get a job and they did not live together 
from that time on. Defendant called her the day after 
John Torres’ child was born and said that he was



217a

going to visit them. She spoke to a woman investiga­
tor five or six times and told her about this conversa­
tion. However, Jesse Franklin’s notes other interview 
with Ms. Godoy on October 23, 1996 reported only 
that Ms. Godoy spoke to defendant on the telephone; 
there was no reference to John Torres’ baby or any 
precise dates.

She saw defendant on July 1, the day he was 
arrested, at her house. She did not know where he 
was on June 19. She helped support defendant when 
he lived in New York and in Florida.

Denise Hernandez testified that she lived in Del­
tona in 1996. She met defendant in February 1996, 
and dated him through June 1996, and, during that 
period, saw him from four to seven times each week.

Sometime in June 1996 she and defendant had a 
bitter argument when defendant took her car for a joy 
ride. She recalls that the fight occurred in June 
because her sister’s birthday was on June 26 and she 
had a gift in the car for her. Therefore, the argument 
must have occurred several days before then.

She last saw defendant in Florida when they 
broke up two weeks or so after the fight. But, that at 
least occurred after her sister’s birthday. She did not 
remember exactly how long before June 26 that she 
had the fight with defendant. She testified that it 
might have occurred several weeks to a few days 
before that date. However, an affidavit prepared by 
an investigator reported that the fight occurred 
several days before the birthday.



218a

She first learned about defendant’s arrest in 
1998, but did not learn the date right away; she 
learned from his attorneys that the homicide occurred 
on June 19. She continued to write, speak to and visit 
defendant in prison after his arrest.

Lisette Rivero met defendant in February 1996 
and saw him three to four times a week. She remem­
bered the argument between defendant and Denise 
Hernandez about the use of her car. She believed that 
it occurred about five days to one week before the 
birthday of Denise’s sister, which occurred towards 
the middle or end of June. She remembered that the 
argument occurred in June 1996 but was uncertain 
about the date. Since then she visited defendant in 
prison twice, wrote to him and spoke to him on the 
telephone.

She first learned that defendant had been ar­
rested in 1998 or 1999 from Denise Hernandez. Her 
recollection about the fight may have been refreshed 
by Denise and her belief that it occurred in June 
came “from people directing her to that month.” She 
was interviewed by an investigator in 2002 and she 
did not mention the date of the argument in an 
affidavit which she prepared at the request of de­
fendant’s sister. In fact, she did not know where 
defendant was on June 19 — either in Florida or New 
York -  and did not learn that the homicide occurred 
on June 19 until sometime in 2004.

Michael Serrano is a correction officer who lived 
in Deltona. He worked for a locksmith in June 1996



219a

and remembers that defendant was present and 
congratulated John Torres when he returned from the 
hospital after his son was born. But, he did not re­
member the date when this happened and did not 
remember seeing defendant in Deltona the day before 
the baby was born.

He was interviewed by an investigator in 2002. 
He told him that he saw defendant the night the baby 
was born but he did not remember whether he saw 
him the night before and he was unclear about when 
he saw defendant again -  perhaps the following day.

Jesse Franklin, a private investigator for more 
than twenty-eight years, was retained by Joyce 
Hartsfield to work on the case. Many of the prosecu­
tion’s alibi witnesses were difficult to locate; some 
had moved, the telephone numbers of others were 
disconnected. But, she did interview Fernando and 
Robert Torres, Minerva Godoy, and John and Jenine 
Torres on the telephone. She tried to telephone John 
Torres, and Lizette Rivero and could not reach them; 
she did not have telephone numbers for Chenoa Ruiz 
and David Guzman. Therefore, Ms. Hartsfield asked 
her to draft an affidavit in support of an application 
for expenses to go to Florida to interview witnesses 
whose names she got from defendant. Ms. Hartsfield 
never told her that the application was granted by 
Judge Fisch; she assumed, therefore, that it had been 
denied. In fact, she learned for the first time that 
Judge Fisch granted the application from defendant’s 
current attorneys shortly before the hearing.



220a

Ms. Franklin, in any event, interviewed John 
Torres, Jenine Seda, defendant’s sister, Maria Maldo­
nado and Fernando Torres, who remembered that 
defendant purchased parts for his son’s car “in the 
latter part of June”; there was no reference to June 
19 or 20.

Joyce Hartsfield began her representation of de­
fendant by interviewing him in July 1996. He pro­
vided her with the names of people who could testify 
that he was in Florida on July 19. She believed that 
she spoke to one of the alibi witnesses but could not 
remember his name.

Ms. Hartsfield did not remember that Judge 
Fisch had authorized a trip by an investigator to 
Florida and, had she known about that, she would 
have asked the investigator to go there. And, she did 
not remember telling Ms. Franklin that her applica­
tion was denied. Nor did she remember if she told Mr. 
Kaiser that the application had been rejected. But 
she was certain that she would not have said that to 
them; there was no reason or logic for her to say that 
the motion had been denied when it had been granted 
-  perhaps there was a misunderstanding on financial 
issues. In any event, they concentrated on John and 
Jenine Torres, who could account for defendant’s 
presence in Florida on the date of the homicide. She 
and Ms. Franklin focused on the Torres’ because the 
birth of their child on June 20 provided a special 
reason for remembering defendant’s whereabouts. 
In any event, Ms. Franklin was not satisfied with 
the investigation as she was unable to contact the



221a

prospective alibi witnesses. But not all of them re­
membered his whereabouts on June 19.

Steven Kaiser replaced Ms. Hartsfield on Febru­
ary 18, 1998. He met defendant for the first time on 
March 5, 1998. Defendant said that he was with John 
Torres in Florida on the date of the crime, and named 
thirteen possible alibi witnesses. Kaiser spoke to Fer­
nando Torres and perhaps to his wife Margarita, their 
son, John Torres, and Jenine Seda.

Mr. Kaiser tried to locate other witnesses by 
telephone and mail but was unsuccessful. He did the 
best he could in the belief that the court denied Ms. 
Hartsfield’s application for an investigator to go to 
Florida; Kaiser would have liked to call Fernando and 
Margarita Torres to testify, since they were a genera­
tion older than their twenty year old son John, and 
Jenine Seda. However, he thought that they were 
reluctant to testify and could not afford the trip to 
New York. He spoke also to other potential witnesses 
but could not remember which ones. Some of them 
could not afford to come to New York. And, it was his 
impression that some -  including Fernando and 
Margarita Torres -  were reluctant to help defendant 
by testifying for him. In any event he believed that 
Judge Fisch had denied Ms. Hartsfield’s application 
for investigative expenses.

Mr. Kaiser did contact the Greyhound Bus Com­
pany and obtained documentary evidence to show 
that defendant traveled from Florida to New York on 
June 30, 1996.



222a

Mr. Kaiser had in his file several police reports. 
Names of the interviewees were redacted. They re­
corded an incident when George Collazo allegedly 
slapped a woman, who then filed a harassment 
charge against him. According to the reports, threats 
were also made against Mr. Collazo. Mr. Kaiser, 
nevertheless, decided not to explore this incident, and 
therefore, did not ask the court for unredacted copies 
of the reports or address it on cross-examination. He 
decided to focus on the alibi defense, and this incident 
and the police investigation of it did not, in his 
judgment, “enhance” its credibility.

The Law
The right to the effective assistance of counsel is 

guaranteed by both the Federal and State constitu­
tions (US Const, 6th Amend.; NY Const, Art I, §6). 
Under the State constitution, effective assistance is 
determined generally in the context of whether defen­
dant received “meaningful representation” (People v. 
Benevento, 91 NY 2d 708, 713; People v. Baldi, 54 NY 
137). The claim of ineffectiveness is ultimately con­
cerned with the fairness of the process as a whole 
rather than its particular impact on the outcome of 
the case (People v. Benevento, supra at 714)*. Thus,

* The federal standard for allegations of ineffective assis­
tance of counsel, which was set forth in Strickland v. Wash­
ington, 466 US 668, requires a showing that the attorney’s 
“performance was deficient” and that, but for the attorneys 
errors, the result of the proceeding would have been different, 
was expressly rejected in this case.



223a

whether defendant would have been acquitted of the 
charge but for counsel’s errors is “relevant, but not 
dispositive” (People v. Benevento, supra at 714).

Meaningful representation does not mean perfect 
representation (People v. Ford, 86 NY 2d 397, 404) or 
representation that is errorless (People v. Aiken, 45 
NY 2d 394, 398). It means, basically, that a defendant 
received a fair trial “as a whole” rather than fixing on 
a “particular impact on the outcome of the case” 
(.People v. Benevento, supra at 714).

Defendants must, in other words, demonstrate 
that they were deprived of a fair trial by less than 
meaningful representation; a simple disagreement 
long after trial with strategies employed by attorneys, 
or their tactics, or judgements, or the scope and 
thrust of cross-examination is just not enough (People 
v. Flores, 84 N.Y. 2d 184). In that respect, “courts 
should not confuse true ineffectiveness with losing 
trial tactics or unsuccessful attempts to advance the 
best possible defense.” The issue is, were the trial 
strategies employed by attorneys reasonable, even 
though they were unsuccessful (People v. Henry, 95 
NY 2d 563). An unexplained error or blunder by an 
attorney does not amount to ineffective assistance 
unless “that error was so serious that defendant did 
not receive a fair trial” (People v. Flores, supra; People 
v. Jackson, 52 NY 2d 1027; People v. Bridgefourth, 13 
AD 3d 1165, 1167). Moreover, when applying these 
standards, an attorney’s efforts should not be second- 
guessed “with the clarity of hindsight” to determine 
how the defense might have been more effective



224a

(.People v. Jackson, 52 NY 2d 1027). In that respect 
there is a “strong presumption that a defense counsel 
rendered effective assistance” (People v. Wong, 11 
AD 3d 484).

Some of the issues explored by the courts when 
determining whether meaningful representation stan­
dards were met include, for example: did the attorney 
present a credible defense; were witnesses effectively 
examined and cross-examined; were all appropriate 
and relevant motions perfected; were opening and 
closing statements organized and presented properly; 
and were objections appropriate (People v. Miller, 226 
AD 2d 833 app den 88 NY 2d 939). Other issues are: 
did an attorney’s errors “seriously compromise a 
defendant’s right to a fair trial” (People v. Jones, 30 
AD 2d 1035; People v. Adams, 12 AD 3d 523); were 
these errors “sufficiently egregious and prejudicial” 
(.People v Flores, supra); and was the representation 
“so inadequate and ineffective as to deprive defendant 
of a fair trial” (People v. Aiden, 45 NY 2d 394).

By any standard, Ms. Hartsfield and Mr. Kaiser 
represented defendant in a thoroughly professional, 
competent, and dedicated fashion and not in accord 
with the issues of ineffectiveness set forth above; the 
errors or omissions suggested by defendant do not 
alter this finding or rise to that level. For example, 
defendant argues that Mr. Kaiser should have inves­
tigated the information provided in police reports 
about a dispute between a woman and the deceased 
which, allegedly, resulted in threats against the 
deceased by unknown persons, and then addressed



225a

this issue at trial. Mr. Kaiser explained at the hear­
ing that he felt that cross-examination on this inci­
dent would have diluted, and weakened the alibi 
defense and, therefore, elected not to pursue it. 
Defendant’s complaint really is addressed to Mr. 
Kaiser’s tactics and strategy, which the courts have 
regularly held are not appropriate subjects of a CPL 
§440.40 motion (People v. Henry, supra; People v. 
Jackson, supra), and were perfectly reasonable and 
appropriate.

Both attorneys filed all appropriate motions; 
within the scope of the information that was then 
available to them, an investigation was conducted; 
witnesses were examined and cross-examined adeptly, 
professionally and with clarity; Mr. Kaiser’s opening 
and closing statements were concise and to the point; 
and, most importantly, a credible alibi defense was 
presented to the jury (People v. Barber, 13 AD 3d 848; 
People v. Damphier, 13 AD 3d 663; People v. Sullivan, 
12 AD 3d 1046).

It is true that Judge Fisch granted defendant’s 
application for funds to send an investigator to Flor­
ida and nothing was done. It is equally true that Ms. 
Hartsfield and Mr. Kaiser believed that this applica­
tion had been denied; an impression that all parties 
held at the outset of these proceedings. But, the 
reality is that Ms. Hartsfield would not tell Mr. 
Kaiser that the motion was denied when it had been 
granted. As she said during the hearing: " . . .  I would 
never say that they denied it because there’s no 
reason to say he denied it . . . but I don’t know why



226a

I would say it was denied when it had been granted 
. . . ” And, at page 57: I have no idea why I would say 
it was denied unless at the point in time that Fisch 
had made his ruling, that I misunderstood him. But 
I would not say to her [Jessie Franklin], if I under­
stood him to grant it, “oh, it was denied.” That part 
just does not make sense, that it was denied. If it was 
granted, it seems to me that it was just an issue of 
money for traveling. I can’t honestly put that piece 
together, your Honor.”

The best and most reasonable explanation, then, 
is that there was a misunderstanding or mistake 
which persisted throughout the case and which the 
parties simply cannot explain. But it was not delib­
erate. And that does not alter the fact that both 
attorneys represented defendant skillfully, and with 
integrity and in accordance with the standards of 
“meaningful representation” defined by our appellate 
courts.

In any event, an alibi defense was presented 
through the two witnesses who had the best reason 
for remembering why defendant was present in 
Florida on June 19 1996 -  the birth of their son -  an 
event that was more relevant for them than the 
events relied upon by the other witnesses (People v. 
Fax, 232 AD 2d 734 app den 89 NY 2d 9425). Moreo­
ver, the alibi evidence offered by defendant at the 
hearing was in some cases questionable and in others 
raised issues which could have created questions for a



227a

deliberating jury. For example, two of the witnesses -  
Lisette Rivero, and Denise Hernandez -  could not say 
where defendant was on June 19 and 20. And Fer­
nando Torres, when questioned about the purchase of 
auto parts years later, changed the date to three or 
four days before his grandson was born (People v. 
Benjamin, 151 AD 2d 685).

In order to prevail on a motion for a new trial 
based on a claim of newly discovered evidence, a 
defendant must establish by a preponderance of the 
evidence that evidence has been discovered since the 
trial which could not, with due diligence, have been 
produced at trial, and which is of such a character 
that, had it been presented at trial, there is a prob­
ability that the verdict would have been more favor­
able for him (CPL §§440.10[l][g], 440.20[6]). That 
evidence must be material evidence. It may not be 
cumulative to evidence presented at the trial -  which 
largely was the case herein -  and it must not be 
merely impeaching evidence (People v. Salemi, 309 
NY 208 cert den 348 US 845).*

Nevertheless, the existence of these witnesses 
was not new evidence discovered since the trial. They 
were known to defendant, who immediately gave

* For instance, Chenoa Ruiz recalled defendant’s presence 
in the Torres’ apartment on June 18 and 19, the two days prior 
to the birth of their child. And, Fernando Torres testified that he 
was with defendant and his son the day before his daughter-in- 
law gave birth. That testimony was cumulative to his son John’s 
trial testimony.



228a

their names to the police after his arrest, to his 
attorneys at their first and subsequent meetings, and 
to Jesse Franklin. Efforts were made to speak, and 
interview them and the substance of their testimony 
was known to the parties before the trial began.

A number of cases where alibi witnesses were not 
called, or did not appear, and yet courts found that 
attorneys provided meaningful representation, bear 
important, instructive parallels to this proceeding. 
For instance, a defense attorney in People v. Henry, 
supra, called an alibi witness who could not “account 
for defendant’s whereabouts on the night of the crime”; 
although the People “discredited the alibi testimony,” 
the court said, the attorney in every other respect 
provided meaningful representation “[CJounsel’s failed 
attempt to establish an alibi was at most an unsuc­
cessful tactic that cannot be characterized as ineffec­
tive assistance.” The defendant in People v. Gaito, 98 
AD 2d 909 argued that he was “ineffectively rep­
resented” because his attorney did not call “two 
witnesses who would have provided additional testi­
mony” that another person, not defendant, was in a 
police car when witnesses made an identification. 
That testimony, the court said, was cumulative to 
other “substantial” evidence which was rejected by 
the jury. A flight attendant in People v. Stewart, 248 
AD 2d 414 app den 92 NY 2d 861 was too ill and 
unwilling to testify. But his testimony was “weak, 
at best” and four other alibi witnesses did testify. 
Defense counsel’s failure to call three witnesses did 
not constitute ineffective assistance of counsel in



229a

People v. Warney, 299 AD 2d 956 lv den 99 NY 2d 633 
even though the attorney failed “to learn of the exis­
tence” of one of them; “viewed in totality” defendant 
received assistance of counsel in People v. Park, 229 
AD 2d 598 app den 86 NY 2d 739 since the witnesses 
could not say “with certainty that they were with the 
defendant on the day the crime for which he was con­
victed was committed.” An attorney’s failure to dis­
cover evidence of defendant’s specific whereabouts on 
“the day of the crime” did not deprive him of effective 
assistance of counsel in People v. Miller, 226 AD 2d 
833 app den 88 NY 2d 939, since the case, “viewed in 
totality,” disclosed that he received meaningful repre­
sentation. And, defendant was not denied effective 
assistance of counsel in People v. Adams, 148 AD 2d 
964 app den 74 NY 2d 660 because a witness did not 
testify; the attorney called, left messages, wrote, 
visited her apartment and hired an investigator (See 
also People v. Hamilton, 272 AD 2d 553 lv den 95 
NY 2d 935).

Defendant has tried to second-guess his trial 
counsel at almost every level of their representation. 
He has questioned the depth of their investigation, 
the scope and focus of cross-examination and argued 
that his alibi defense could have been better if they 
had only followed through on Judge Fisch’s order. His 
criticisms ignore the fact that Ms. Hartsfield and Mr. 
Kaiser ably, and professionally represented him at 
every stage of the case with integrity and in ways 
that were consistent with the standards of “meaning­
ful representation” described above.



230a

An investigator was not sent to Florida to inter­
view witnesses. Nevertheless, the fact remains that 
the People’s case was strong, which was acknowl­
edged by the Appellate Division when it affirmed the 
conviction herein. The prospective witnesses now 
before the court, studied closely, were, for the most 
part, questionable and certainly not as persuasive as 
the two witnesses who did testify, and were rejected 
by the jury. And Mr. Kaiser at trial was prepared, 
skillful, purposeful, thoughtful and creative.

The Second Department in People v. Jackson, 
74 AD 2d 585 aff’d 52 NY 2d 1027, in rejecting a 
defendant’s challenge to the ineffectiveness of his 
trial counsel said: “We are not persuaded that trial 
counsel’s performance here should undo a jury verdict 
which was amply supported by the evidence.” I, too, 
believe that this jury verdict was unimpeached, and 
“amply supported by the evidence.” Defendant’s 
attorneys provided him with meaningful representa­
tion and his motion is, therefore, denied.

DATED: April 4, 2005
The Bronx, New York

/s/ Edward M. Davidowitz_______
Edward M. Davidowitz 
Justice of the Supreme Court



TO: HON. Robert T. Johnson
District Attorney, Bronx County 
BY: Chris Blira-Koessler, Esq. 

Daniel McCarthy, Esq.
Carl H. Loewenson, Jr., Esq. 
Kerry Elgarten, Esq. 
ATTORNEYS FOR DEFENDANT

231a



232a

APPENDIX G
State of New York 
Court of Appeals

BEFORE: HON.
CARMEN BEAUCHAMP CIPARICK,

Associate Judge

THE PEOPLE OF THE STATE 
OF NEW YORK,

Respondent,
-  against -  

RICHARD ROSARIO,
Appellant.

CERTIFICATE
DENYING
LEAVE

I, CARMEN BEAUCHAMP CIPARICK, Associate 
Judge of the Court of Appeals of the State of New 
York, do hereby certify that upon application timely 
made by the above-named appellant for a certificate 
pursuant to CPL 460.20 and upon the record and 
proceedings herein,* there is no question of law 
presented which ought to be reviewed by the Court of 
Appeals and permission is hereby denied.

* Description o f  Order: Order of the Appellate Division, 
First Judicial Department, entered November 27, 2001, affirm­
ing a judgment of the Supreme Court, Bronx County, rendered 
December 17, 1998.



233a

Dated: March 26, 2002 
at New York, New York

/s/ Carmen Beauchamp Ciparick 
Associate Judge



234a

APPENDIX H 
REMITTITUR

(Filed Dec. 5, 2001)

Andrias, J.P., Wallach, Lerner, Rubin, Buckley, JJ.
5380 The People of the State 

of New York,
Respondent,

-  against -  
Richard Rosario,

Defendant-Appellant.

John M. Moreira 
[5142/96]
Kerry Elgarten

Judgment, Supreme Court, Bronx County (Joseph 
Fisch, J.), rendered December 17, 1998, convicting 
defendant, after a jury trial, of murder in the second 
degree, and sentencing him to a term of 25 years to 
life, unanimously affirmed.

The trial court properly exercised its discretion in 
permitting the People to introduce rebuttal evidence 
since it tended to disprove defendant’s alibi (see, 
People v Harrington, 262 AD2d 220, Iv denied 94 
NY2d 823; see also, People v Marsh, 264 AD2d 647, Iv 
denied 94 NY2d 825). While the rebuttal evidence 
concerned defendant’s whereabouts several months 
prior to the crime, it was not collateral because 
defendant had made his various travels to Florida 
over an extended period of time integral parts of his 
alibi defense. Furthermore, the prejudicial effect of 
revealing to the jury that defendant had served 30



235a

days in jail for an unspecified offense was minimal, 
particularly in light of the court’s limiting instruc­
tions, and was outweighed by the probative value of 
the rebuttal evidence. In any event, were we to find 
any error, we would find it harmless in light of the 
overwhelming evidence of defendant’s guilt.

Defendant failed to make a prima facie showing 
of racial discrimination by the prosecution in the 
exercise of its peremptory challenges, particularly in 
light of the racial makeup of the panel of prospective 
jurors (see, People v Ware, 245 AD2d 85, Iv denied 91 
NY2d 978). The mere number of peremptory chal­
lenges exercised by the prosecution against African- 
Americans did not establish a prima facie case and 
defendant failed to show disparate treatment of 
similarly situated panelists or other relevant circum­
stances to raise an inference of a discriminatory 
purpose (see, People v Jenkins, 84 NY2d 1001; People 
v Bolling, 79 NY2d 317).

Defendant’s challenges to the prosecutor’s ques­
tioning of witnesses and comments in summation are 
unpreserved and we decline to review them in the 
interest of justice. Were we to review these claims, we 
would find no basis for reversal (see, People v Overlee, 
236 AD2d 133, Iv denied 91 NY2d 976; People v 
D’Alessandro, 184 AD2d 114, 118-119, Iv denied 81 
NY2d 884).



236a

THIS CONSTITUTES THE DECISION 
AND ORDER OF THE SUPREME COURT, 

APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 27, 2001

/s/ Catherine O’Hagan Wolfe 
CLERK



237a

APPENDIX I

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 10th day 
of August, two thousand ten.

RICHARD ROSARIO,
Petitioner-Appellant,

X

— v. —
SUPT. ROBERT ERCOLE, 08-5521-pr
Green Haven Correctional Facility,
ATTORNEY GENERAL ELLIOT 
SPITZER,

Respondents-Appellees. 
-------------------------------------------------------X

ORDER

Following disposition of this appeal on April 12, 
2010, petitioner-appellant Richard Rosario filed a 
petition for rehearing and rehearing in banc. Upon 
consideration by the panel that decided the appeal, 
the petition for rehearing is DENIED. An active 
judge requested a poll on whether to rehear the case 
in banc. A poll having been conducted and there being 
no majority favoring in banc review, rehearing in 
banc is hereby DENIED.



238a

Judge Wesley concurs in an opinion joined by 
Judges Cabranes, Raggi, Hall, and Livingston; Judge 
Katzmann concurs in a separate opinion; Chief Judge 
Jacobs dissents in an opinion joined by Judges Pooler, 
Lynch, and Chin; and Judge Pooler dissents in a 
separate opinion.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK

RICHARD C. WESLEY, Circuit Judge, with whom 
Judge JOSE A. CABRANES, Judge REENA RAGGI, 
Judge PETER W. HALL, and Judge DEBRA ANN 
LIVINGSTON join, concurring in the denial of re­
hearing en banc.

We stand by the panel’s decision in this case and 
support the Court’s decision not to rehear this case 
en banc.

As the lead dissent from the denial of rehearing 
en banc concedes, the New York state standard is 
more protective of defendants than the federal stan­
dard. The New York Court of Appeals has expressed 
this sentiment in decision after decision. See, e.g., 
People v. Ozuna, 7 N.Y.3d 913, 915 (2006); People v. 
Turner, 5 N.Y.3d 476, 480 (2005) (collecting cases). Yet 
because the state standard could be misapplied to 
diminish the prejudicial effect of a single error, mem­
bers of this Court wish to encroach on the province of 
the state to demand that it reframe its standard for 
identifying ineffective assistance of counsel to mimic



239a

the less protective federal model. I believe such a 
drastic measure is unnecessary as a matter of law 
and unwarranted as a matter of comity. As the court’s 
opinion in this case holds, an attorney error that 
prejudiced a defendant under the federal standard 
would necessarily affect the fairness of the process as 
a whole under the state standard. Thus, to the extent 
that any state court failed to afford relief for prejudi­
cial error, that oversight would be contrary to both 
the federal and state standard, and could be dealt 
with on case by case review.

Certainly the failure that the dissent fears did 
not occur in this case. As detailed in the court’s opin­
ion, in his assessment of the alibi witnesses at the 
hearing pursuant to New York Criminal Procedure 
Law 440.10(1), Justice Davidowitz looked specifically 
at the possible prejudicial effects of the very error at 
issue here. He did not minimize the mistake, but 
instead concluded that the omission of the additional 
alibi witnesses could not support an inference that, 
but for that omission, the outcome would have been 
different. The dissent focuses on but one passage 
from the state court opinion, arguing that Justice 
Davidowitz “shifted the focus” away from the error to 
the performance of counsel overall. The dissent fails 
to recount the full extent of the state court inquiry. As 
stated in the court’s opinion:

The [state] court noted that the two alibi 
witnesses that were presented at trial “had 
the best reason for remembering why de­
fendant was present in Florida on June 19[,]



240a

1996 -  the birth of their son -  an event that 
was more relevant for them than the events 
relied upon by the other witnesses.” He ex­
pressed skepticism as to the probative value 
of the witnesses presented at the hearing, 
calling the evidence “in some cases question­
able and in others [raising] issues which 
could have created questions for a deliber­
ating jury. For example, two of the witnesses 
-  Lisette Rivero[] and Denise Hernandez -  
could not say where the defendant was on 
June 19 and 20.” The judge “studied closely” 
the alibi witnesses presented at the hearing, 
and concluded they were “for the most part, 
questionable and certainly not as persuasive 
as the two witnesses who did testify, and 
were rejected by the jury” and the testimony 
they would have provided was “largely” 
cumulative. In spite of the failure to call the 
alibi witnesses, Justice Davidowitz deter­
mined “this jury verdict was unimpeached 
and amply supported by the evidence.” (inter­
nal quotation marks omitted and emphasis 
added).

Rosario v. Ercole, 601 F.3d 118, 127 (2d Cir. 2010).

That said, I agree with the dissent that New York 
state courts would be wise to engage in separate 
assessments of counsel’s performance under both the 
federal and the state standards. See, e.g., People v. 
McNeill, 899 N.Y.S.2d 840, 841 (1st Dep’t 2010). Such 
an exercise would ensure that the prejudicial effect of 
each error is evaluated with regard to outcome, and 
would guarantee that defendants get the quality of



241a

overall representation guaranteed under New York 
state law. This vigilance will also alleviate the risk 
that the federal courts will force state courts to 
abandon New York’s generous standard for one akin 
to the more restrictive federal model.

K atzm ann , Circuit Judge, con cu rrin g  in  the den ia l o f  
reh earin g  in banc.

The dissenters have identified possible chal­
lenges posed by New York’s constitutional standard 
for ineffective assistance of counsel claims. As they 
note, the New York standard could leave room for 
New York courts to find a lawyer effective by focusing 
on the “fairness of the process as a whole,” People v. 
Benevento, 91 N.Y.2d 708, 714 (1998), rather than on 
whether “there is a reasonable probability that . . . 
the result of the proceeding would have been differ­
ent” absent defense counsel’s mistakes, Strickland v. 
Washington, 466 U.S. 668, 694 (1984). See Henry v. 
Poole, 409 F.3d 48, 70-72 (2d Cir. 2005) (“paus[ing] 
to question whether the New York standard is not 
contrary to Strickland”).

As both Chief Judge Jacobs’ dissent and Judge 
Wesley’s concurrence observe, however, such diffi­
culties can be avoided by separate consideration of 
counsel’s performance under the federal standard 
when a federal challenge is presented in the New 
York courts. For the reasons set forth in the panel’s 
decision, see Rosario v. Ercole, 601 F.3d 118, 127 (2d 
Cir. 2010), I am satisfied that the trial court here



242a

engaged in such an inquiry, albeit “not delivered in 
Strickland terminology,” id. (quoting Rosario v. Ercole, 
582 F. Supp. 2d 541, 553 (S.D.N.Y. 2008)). Accord­
ingly, this case does not require us to review New 
York’s standard. Thus, I concur in the decision of the 
Court to deny rehearing in banc.

DENNIS JACOBS, Chief Judge, joined by ROSE­
MARY S. POOLER, GERARD E. LYNCH, and DENNY 
CHIN, Circuit Judges, dissenting from the denial of 
rehearing in banc.

I agree with the panel majority that the New 
York standard for ineffective assistance of counsel is 
more lenient to defendants generally, lacking as it 
does a “but for” prejudice requirement. See People v. 
Turner, 5 N.Y.3d 476, 480 (2005). But it is neverthe­
less contrary to the standard set forth in Strickland v. 
Washington, 466 U.S. 668 (1984). I respectfully dis­
sent from the order denying in banc review because 
this defect likely will give rise to more cases that will 
bedevil the district courts, which are left to sort out 
case-by-case a problem that is systemic.1

1 Senior Circuit Judge Chester J. Straub, the author of the 
panel’s minority opinion concurring in part and dissenting in 
part, was not authorized to participate in the in banc poll, but 
has endorsed the views expressed in this opinion.



243a

I

Under federal law, a lawyer is ineffective when 
conduct that falls “below an objective standard of 
reasonableness,” Strickland, 466 U.S. at 688, creates 
“a reasonable probability that . . . the result of the 
proceeding would have been different,” id. at 694. 
“[UJnder New York law the focus of the inquiry is 
ultimately whether the error affected the ‘fairness of 
the process as a whole.’ ” Rosario v. Ercole, 601 F.3d 
118, 124 (2d Cir. 2010) (quoting People v. Benevento, 
91 N.Y.2d 708, 714 (1998)). The test articulated by 
the New York Court of Appeals thus allows a lawyer 
whose overall performance is adequate to be deemed 
constitutionally effective notwithstanding an isolated 
lapse that calls the result into question -  the very 
scenario that triggers relief under Strickland. The 
New York standard is fairly unambiguous:

Two of our decisions have rejected ineffective 
assistance claims despite significant mis­
takes by defense counsel (.People v. Hobot, 84 
N.Y.2d 1021 (1995); People v. Flores, 84 
N.Y.2d 184 (1994)). Those cases hold, and we 
reaffirm today, that such errors as overlook­
ing a useful piece of evidence {Hobot), or fail­
ing to take maximum advantage of a Rosario 
violation (Flores), do not in themselves render 
counsel constitutionally ineffective where his 
or her overall performance is adequate. But 
neither Hobot nor Flores involved the failure 
to raise a defense as clear-cut and completely 
dispositive as a statute of limitations. Such 
a failure, in the absence of a reasonable



244a

explanation for it, is hard to reconcile with 
a defendant’s constitutional right to the 
effective assistance of counsel.

Turner, 5 N.Y.3d at 480-81 (emphases added). Thus 
the New York test averages out the lawyer’s perform­
ance while Strickland focuses on any serious error 
and its consequences.

In the passage quoted above, the Turner court 
relies on Flores. That is dubious precedent. In Flores, 
a case involving a single serious error, the New York 
Court of Appeals relied on the “totality of representa­
tion” to decide that defense counsel’s waiver of a 
Rosario claim did not constitute ineffectiveness. People 
v. Flores, 84 N.Y.2d 184, 187 (1994). Years later, this 
Court granted habeas relief, finding “at least a 
reasonable probability . . . that had that Rosario 
claim been pressed, Flores would have been granted 
a new trial by the trial court or on appeal.” Flores 
v. Demskie, 215 F.3d 293, 305 (2d Cir. 2000).

Because the New York standard allows the grav­
ity of individual errors to be discounted indulgently 
by a broader view of counsel’s overall performance, 
it is contrary to Strickland.

II

The present case illustrates the constitutional 
defect in the New York standard. Rosario’s pre-trial 
and trial counsel admitted an uncommonly bad mis­
take in believing that the state court had denied an 
application for funds to send an investigator to find



245a

and interview about a dozen alibi witnesses who 
would swear that the defendant was in Florida when 
the charged crime was committed in New York. This 
failure was not a misfire of strategy or tactics; it was 
conceded error. In denying Rosario’s collateral chal­
lenge, the Supreme Court of the State of New York 
acknowledged as much, but then shifted the focus:

The best and most reasonable explanation, 
then, is that there was a misunderstanding 
or mistake which persisted through the case 
and which the parties simply cannot explain.
But it was not deliberate. And that does not 
alter the fact that both attorneys represented 
defendant skillfully, and with integrity and 
in accordance with the standards of “mean­
ingful representation” defined by our appel­
late courts.

It is this shift -  from the specific mistake to the 
broader performance -  that concerns me and should 
concern the entire Court.

I ll

I recognize that some colleagues may not consid­
er this case an ideal vehicle for deciding the issue, in 
view of the state court’s alternative ruling that “an 
alibi defense was presented through the two wit­
nesses who had the best reason for remembering 
why” Rosario was elsewhere when the crime was 
committed, and that the prospective additional alibi 
witnesses “were, for the most part, questionable and



246a

certainly not as persuasive as the two witnesses who 
did testify.”

The panel majority seizes on this alternative 
ground to assert that the state court “considered the 
prejudicial effect of the errors, and concluded that the 
outcome of the trial would not have been different but 
for those errors.” Rosario, 601 F.3d at 128.

The state court’s findings of fact may bear on 
whether the state court unreasonably applied the 
correct federal standard, but they do not obviate the 
need to start with the correct standard; a finding on a 
mixed question of law and fact (such as prejudice) is 
suspect (at least) if it is guided by a defective under­
standing of the law. Moreover, although the state 
court conducted a hearing that included testimony 
from seven prospective alibi witnesses, I am unim­
pressed by the finding that they were “for the most 
part, questionable,” and that the two who testified at 
trial were the best of the lot. First, if a witness is 
without flaw, I tend to suspect perjury; second, cor­
roboration matters. As the panel dissent forcefully 
explains, Rosario was seriously prejudiced by the 
absence of more alibi witnesses. Rosario, 601 F.3d at 
131-37, 140-42 (Straub, J. , dissenting).



247a

IV

The full Court took an in banc poll in this case 
and decided not to revisit the panel’s ruling. But this 
should not be construed as an imprimatur.2

I acknowledge that in most instances the state 
standard is more solicitous of the Sixth Amendment 
right to counsel than ours, and I respect the measures 
taken by the New York courts to administer cases in a 
way that seeks to accommodate a federal standard 
that is not congruent. That said, members of this 
Court entertain serious disquiet that in the courts of 
New York the gravity of individual mistakes may be 
submerged in an overall assessment of effectiveness, 
in a way that violates the federal Constitution.

Unneeded conflict can be avoided by separate 
consideration of counsel’s performance under the 
Strickland standard in the New York courts when a 
federal challenge is presented. No doubt, there are 
other ways to the same end. But without some fur­
ther vigilance in the state courts, the issue will be

2 At different times, this Court has been of different minds 
on the question. Some opinions have said (albeit in dicta or in 
following binding precedent) that the New York test is not 
contrary to Strickland. See Eze v. Senkowski, 321 F.3d 110, 124 
(2d Cir. 2003); Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 
2001); Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001). 
A later panel voiced doubt. See Henry v. Poole, 409 F.3d 48, 70- 
71 (2d Cir. 2005) (pausing “to question whether the New York 
standard is not contrary to Strickland,” but granting habeas 
relief on the unreasonable application ground).



248a

presented to us one day in a case in which fact­
findings do not blur focus on the constitutional 
question, and an in banc panel of this Court may be 
convened to deal with it.

POOLER, J., dissenting in the denial of rehearing en 
banc:

I fully join Chief Judge Jacobs’ dissent from the 
denial of rehearing en banc. I write separately only to 
further highlight the injustice this court’s denial 
permits. It is probably correct that generally the New 
York state ineffective assistance standard is more 
lenient towards defendants than the federal standard. 
Rosario, however, I am sure would disagree. The state 
standard can act to deny relief despite an egregious 
error from counsel so long as counsel provides an 
overall meaningful representation. This is contrary to 
Strickland. See Strickland v. Washington, 466 U.S. 
668 (1984). Far from being a theoretical problem as 
the concurrence suggests, this seems to be exactly 
what happened in Rosario’s case. All three members 
of the Rosario panel agreed that defense counsels’ 
performance was probably ineffective under Strick­
land even though it was not ineffective under the 
state standard. Rosario v. Ercole, 601 F.3d 118, 126 
(2d Cir. 2010); id. at 129 (Straub, J., dissenting).

At least we all can agree that the New York state 
courts would be wise to evaluate counsels’ perform­
ances separately under the federal and the state stan­
dards. Doing so will likely prevent future defendants



249a

from being penalized by a lacuna in a state standard 
that we have upheld because it supposedly works to 
their benefit.



250a

APPENDIX J
United States Code, Title 28

§ 2254. State custody; remedies in Federal 
courts

(a) The Supreme Court, a Justice thereof, a circuit 
judge, or a district court shall entertain an applica­
tion for a writ of habeas corpus in behalf of a person 
in custody pursuant to the judgment of a State court 
only on the ground that he is in custody in violation of 
the Constitution or laws or treaties of the United 
States.

(b) (1) An application for a writ of habeas corpus on 
behalf of a person in custody pursuant to the judg­
ment of a State court shall not be granted unless it 
appears that -

(A) the applicant has exhausted the remedies 
available in the courts of the State; or

(B) (i) there is an absence of available State 
corrective process; or

(ii) circumstances exist that render such pro­
cess ineffective to protect the rights of the appli­
cant.

(2) An application for a writ of habeas corpus may 
be denied on the merits, notwithstanding the failure 
of the applicant to exhaust the remedies available in 
the courts of the State.

(3) A State shall not be deemed to have waived the 
exhaustion requirement or be estopped from reliance



251a

upon the requirement unless the State, through 
counsel, expressly waives the requirement.

(c) An applicant shall not be deemed to have ex­
hausted the remedies available in the courts of the 
State, within the meaning of this section, if he has 
the right under the law of the State to raise, by any 
available procedure, the question presented.

(d) An application for a writ of habeas corpus on 
behalf of a person in custody pursuant to the judg­
ment of a State court shall not be granted with re­
spect to any claim that was adjudicated on the merits 
in State court proceedings unless the adjudication of 
the claim -

(1) resulted in a decision that was contrary to, 
or involved an unreasonable application of, clear­
ly 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 pro­
ceeding.

(e) (1) In a proceeding instituted by an application 
for a writ of habeas corpus by a person in custody 
pursuant to the judgment of a State court, a determi­
nation of a factual issue made by a State court shall 
be presumed to be correct. The applicant shall have 
the burden of rebutting the presumption of correct­
ness by clear and convincing evidence.



252a

(2) If the applicant has failed to develop the factual 
basis of a claim in State court proceedings, the court 
shall not hold an evidentiary hearing on the claim 
unless the applicant shows that -

(A) the claim relies on -

(i) a new rule of constitutional law, made 
retroactive to cases on collateral review by 
the Supreme Court, that was previously un­
available; or

(ii) a factual predicate that could not have 
been previously discovered through the exer­
cise of due diligence; and

(B) the facts underlying the claim would be suf­
ficient to establish by clear and convincing evi­
dence that but for constitutional error, no 
reasonable factfinder would have found the ap­
plicant guilty of the underlying offense.

(f) If the applicant challenges the sufficiency of the 
evidence adduced in such State court proceeding to 
support the State court’s determination of a factual 
issue made therein, the applicant, if able, shall pro­
duce that part of the record pertinent to a determina­
tion of the sufficiency of the evidence to support such 
determination. If the applicant, because of indigency 
or other reason is unable to produce such part of the 
record, then the State shall produce such part of the 
record and the Federal court shall direct the State to 
do so by order directed to an appropriate State offi­
cial. If the State cannot provide such pertinent part of 
the record, then the court shall determine under the



253a

existing facts and circumstances what weight shall be 
given to the State court’s factual determination.

(g) A copy of the official records of the State court, 
duly certified by the clerk of such court to be a true 
and correct copy of a finding, judicial opinion, or other 
reliable written indicia showing such a factual de­
termination by the State court shall be admissible in 
the Federal court proceeding.

(h) Except as provided in section 408 of the Con­
trolled Substances Act, in all proceedings brought 
under this section, and any subsequent proceedings 
on review, the court may appoint counsel for an 
applicant who is or becomes financially unable to 
afford counsel, except as provided by a rule promul­
gated by the Supreme Court pursuant to statutory 
authority. Appointment of counsel under this section 
shall be governed by section 3006A of title 18.

(i) The ineffectiveness or incompetence of counsel 
during Federal or State collateral post-conviction 
proceedings shall not be a ground for relief in a 
proceeding arising under section 2254.