Rosario v Griffin Reply Brief for Petitioner

    No. 10-854

3Sn m *
S u p r e m e  C o u r t  of tfje ® m te b  States?

------------4 ------------

R ichard Rosario, petitioner,
V.

Patrick Griffin, Superintendent, Southport 
Correctional Facility, and Andrew M. Cuomo, 

A ttorney General of N ew Y ork

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

FOR THE SECOND CIRCUIT

REPLY BRIEF FOR PETITIONER

John Payton 
Director-Counsel 

Debo P. A degbile 
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) 887-8740 
dmaynard@mofo.com
Carl H. Loewenson, Jr. 
Leda A. Moloff 
Adam J. Hunt 
Morrison & Foerster llp 
1290 Avenue of the Americas 
New York, NY 10104
Counsel for Petitioner

April 18, 2011

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

mailto:dmaynard@mofo.com


TABLE OF CONTENTS
Page

TABLE OF CONTENTS........................................  i
TABLE OF AUTHORITIES................................... ii
REPLY BRIEF FOR PETITIONER...................... 1

A. New York’s Meaningful Representation 
Standard Is Contrary To, Or At A Mini­
mum Results In Decisions That Are An 
Unreasonable Application Of, Strickland
v. Washington................................................ 2

B. This Is An Ideal Vehicle To Address This
Important Issue...........................................  8

C. If The State Court Had Applied Strick­
land, Rosario Would Have Been Granted 
Relief.............................................................. 10

CONCLUSION........................................................  13



11

TABLE OF AUTHORITIES
Page

Cases:

Flores v. Demskie, 215 F.3d 293 (2d Cir.), cert, 
denied, 531 U.S. 1029 (2000)................................... 8, 9

Goodman v. Bertrand, 467 F.3d 1022 (7th Cir.
2006)........................................................................... 5

Harrington v. Richter, ___U.S. ___ , 131 S. Ct.
770 (2011)...........................................................4,6,7

People v. Benevento, 697 N.E.2d 584 (N.Y.
1998)........................................................................... 3

People v. Hilliard, 73 N.Y.2d 584 (1989)......................6
People v. Ozuna, 7 N.Y.3d 913 (2006).......................... 6
People v. Turner, 840 N.E.2d 123 (N.Y. 2005)..............9
Premo v. Moore, ___ U.S. ___, 131 S. Ct. 733

(2011)......................................................................... 6, 7
Spears v. Mullin, 343 F.3d 1215 (10th Cir.

2003)........................................................................... 5
Strickland u. Washington, 466 U.S. 668 (1984) ...passim
Williams v. Taylor, 529 U.S. 362 (2000).......................5

U.S. Constitution and Statutes:

U.S. Const, amend. VI................................................. 8, 9
28 U.S.C. § 2254(d)........................................................4
28 U.S.C. § 2254(d)(1)....................................................5



REPLY BRIEF FOR PETITIONER

Respondents ignore the sharp division in the 
Second Circuit in denying the petition for rehearing 
en banc in this case. Only a bare majority of the 
active court of appeals judges voted to deny rehearing 
en banc, and even those judges expressed little confi­
dence that the New York state constitutional stand­
ard is being applied consistently with Strickland v. 
Washington, 466 U.S. 668 (1984). Instead, these 
judges took the extraordinary step of advising New 
York state courts to apply both the federal and state 
constitutional standards in order to avoid issuing 
decisions that are contrary to Strickland.

Because the Second Circuit consistently has 
refused to revisit its prior precedent addressing this 
issue, only this Court can determine whether New 
York’s meaningful representation standard—which 
the state court in this case described as having “re­
jected” Strickland—is contrary to clearly established 
federal law. As the Second Circuit judges who dis­
sented from the denial of rehearing en banc ex­
plained, this issue, if left unresolved, will continue to 
bedevil the federal courts that seek to reconcile these 
two contradictory standards.

This is an ideal vehicle to resolve the question 
presented. The application of the state law standard 
instead of federal law made a difference—and all five 
federal judges to have considered the issue accepted 
that Strickland had been violated. Notwithstanding 
respondents’ attempt to distort the record below, that



2

conclusion is amply supported by the facts. Rosario’s 
trial counsel failed to thoroughly investigate his alibi 
defense. This was not a strategic decision; it was 
instead based on the inexplicably mistaken belief that 
the trial court denied funds for such an investigation. 
Seven additional alibi witnesses would have testified 
that Rosario was over a thousand miles away at the 
time of the offense. This would have made a differ­
ence in any case, but particularly so here, where no 
forensic evidence linked Rosario to the crime and the 
prosecution was based solely on two eyewitness 
accounts of strangers—evidence consistently proven 
to be unreliable.

The fact that New York is an outlier in failing to 
follow Strickland (Opp. 9) is not a reason for this 
Court to deny review—New York state prisoners are 
no less deserving of federal constitutional protection. 
The Court should summarily reverse the judgment 
below or, in the alternative, grant plenary review.

A. New York’s Meaningful Representation 
Standard Is Contrary To, Or At A Minimum 
Results In Decisions That Are An Unrea­
sonable Application Of, Strickland v. Wash­
ington

1. Respondents incorrectly state that New 
York’s meaningful representation standard is con­
sistent with Strickland. As Chief Judge Jacobs 
explained in his four-judge dissent from the Second 
Circuit’s denial of rehearing en banc, the “New York 
test averages out the lawyer’s performance while



3

Strickland focuses on any serious error and its conse­
quences.” Pet. App. 244a. Under the New York 
standard, “the gravity of individual mistakes may be 
submerged in an overall assessment of effectiveness, 
in a way that violates the federal Constitution.” Pet. 
App. 247a. Indeed, the New York Court of Appeals 
expressly has held that the state standard is more 
“concerned with the fairness of the process as a whole 
rather than its particular impact on the outcome of 
the case.” People v. Benevento, 697 N.E.2d 584, 588 
(N.Y. 1998). Thus, under the New York standard, it is 
only “relevant, but not dispositive” that a defendant 
like Rosario would have been acquitted but for coun­
sel’s errors. Ibid.

Far from endorsing New York’s meaningful 
representation standard, even the divided Second 
Circuit majority recognized that it creates “a danger 
that some courts might misunderstand * * * and look 
past a prejudicial error as long as counsel conducted 
himself in a way that bespoke of general competency 
throughout the trial.” Pet. App. 15a. Thus, in voting 
to deny Rosario’s petition for rehearing en banc, 
Judge Wesley “agree[d] 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.” Pet. App. 240a.

Review is thus warranted here because the New 
York standard is patently incompatible with Strick­
land.



4

2. Contrary to respondents’ suggestion (Opp. 9- 
10), the state court never applied Strickland. And 
this is not a case where the state court was unaware 
of—or merely silent as to—the standard it applied.
Harrington v. Richter, ___ U.S. ___, 131 S. Ct. 770,
784 (2011) (“[A] state court need not cite or even be 
aware of [this Court’s] cases under § 2254(d).”). 
Rather, the state court in this case acknowledged the 
Strickland standard’s existence, but explicitly de­
clined to apply it because it had been “expressly 
rejected” by the New York Court of Appeals. Pet. App. 
222a n*.

Thus, it is respondents who “distort” the state 
court ruling by claiming, without citation, that Strick­
land was applied. Opp. 10. Rather than identify 
where in the text of the state court opinion Strickland 
was applied, respondents instead point to Judge 
Wesley’s Second Circuit concurring opinion which 
asserts—but also does not indicate where—the state 
court examined prejudice under Strickland. Ihid. 
(citing Pet. App. 239a).

That bald assertion is contradicted by the state 
court ruling itself. Indeed, far from applying any- 
thing compatible with Strickland’s prejudice prong, 
the state court applied the requirements “to prevail 
on a motion for a new trial based on a claim of 
newly discovered evidence” and determined Rosario 
was not entitled to relief. Pet. App. 227a. But 
this Court rejected that standard as “not quite 
appropriate” for the ineffective-assistance-of-counsel



5

analysis. Strickland, 466 U.S. at 694 (“Even when 
the specified attorney error results in the omission of 
certain evidence, the newly discovered evidence 
standard is not an apt source from which to draw a 
prejudice standard for ineffectiveness claims.”). The 
application of a standard expressly rejected by Strick­
land cannot be an application of—and must be “con­
trary to”—“clearly established federal law, as 
determined by the Supreme Court of the United 
States.” 28 U.S.C. § 2254(d)(1).

3. Respondents do not confront the precedent in 
this Court and other courts of appeals holding that a 
state standard providing less protection than Strick­
land is contrary to clearly established federal law. 
See, e.g., Williams v. Taylor, 529 U.S. 362 (2000) 
(holding that it would be contrary to clearly estab­
lished federal law for a state court to compel a pris­
oner to prove more than Strickland requires); 
Goodman v. Bertrand, 467 F.3d 1022 (7th Cir. 2006); 
Spears v. Mullin, 343 F.3d 1215 (10th Cir. 2003).

Instead, respondents assert that the New York 
standard is distinguishable from the “more onerous” 
state law standards applied in those cases because 
the New York standard is “generally understood to be 
more favorable to criminal defendants.” Opp. 9, 11. 
Respondents, however, have identified no case where 
relief was granted under the New York standard, but



6

would have been denied under Strickland.1 Even if 
respondents could point to such a case, the question 
presented would not be any less worthy of this 
Court’s review. The question is not whether New 
York can have a state constitutional standard that is, 
in some circumstances, more protective of some 
defendants’ rights. Rather, it is whether New York 
can have a Sixth Amendment ineffective assistance of 
counsel standard that, at the same time, is less 
protective for a different category of defendants. As 
the petition explains, this Court and other federal 
courts have repeatedly rejected such less protective 
standards. In particular, state law standards—like 
the meaningful representation standard—that rely on 
“fairness” rather than adverse outcomes are consist­
ently held to be “contrary to” clearly established 
federal law. Pet. 25-27.

4. Respondents cite Premo v. Moore, ___ U.S.
___, 131 S. Ct. 733 (2011), and Harrington v. Richter,
___ U.S. ___, 131 S. Ct. 770 (2011), as a basis for
denial of review. Opp. 13-14. But those decisions 
addressed whether a determination is an “unreason­
able application” of clearly established federal law 
and, thus, are entirely inapposite to whether the

1 Respondents cite People v. Ozuna, 7 N.Y.3d 913 (2006), 
and People v. Hilliard, 73 N.Y.2d 584, 586 (1989), as instances 
where the New York standard might have made a difference. 
Opp. 12. But the Ozuna court rejected the ineffective assistance 
of counsel claim and thus did not establish that the New York 
standard is more protective. And Hilliard discussed neither 
Strickland nor the meaningful representation standard.



7

New York standard is “contrary to” the federal stand­
ard for ineffective assistance of counsel.

In any event, neither Premo nor Harrington 
support denying review of Rosario’s additional claim 
that the state court decision was an unreasonable 
application of clearly established federal law. By no 
means was it “arguable that a reasonable attorney 
could decide to forgo” a Florida investigation of Ro­
sario’s alibi. Harrington, 131 S. Ct. at 788. Although 
trial counsel Hartsfield believed it “critical” to speak 
with the alibi witnesses in person and Kaiser would 
have “loved” additional witnesses, neither conducted 
a Florida investigation. C.A. App. A-1042-1043, A- 
1183-1184, A-1192-1193, A-1963-1966. Their failure 
resulted solely from their mistaken belief that the 
trial court had denied funds for such an investigation. 
C.A. App. A-1127-1128, A-1200. While “[cjounsel was 
entitled to formulate a strategy that was reasonable 
at the time and to balance limited resources in accord 
with effective trial tactics and strategies,” id. at 789, 
counsel could not reasonably formulate a strategy 
based on an inexplicable mistake.

Counsel’s unjustified failure to conduct a Florida 
investigation and present disinterested alibi witnesses 
created not just a “conceivable” likelihood of a differ­
ent result, but in fact a “substantial” likelihood. Id. 
at 792. As explained in the petition (Pet. 31-35), the 
additional testimony would have provided “indisput­
ably critical data points in establishing that Rosario 
was in Florida, and not over 1000 miles away in



8

New York, when the victim was murdered.” Pet. App. 
38a (Straub, J., dissenting in part and concurring in 
part).

B. This Is An Ideal Vehicle To Address This
Important Issue

There is no merit to respondents’ claim that this 
case does not present a suitable vehicle to resolve the 
question presented. The issues in this case are 
recurring and affect a category of defendants in one of 
the most populous States.

1. As Chief Judge Jacobs explained in his 
dissent to the denial of rehearing en banc, absent this 
Court’s review, the continued application of the New 
York standard to Sixth Amendment claims “will likely 
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.” Pet. App. 244a.

Respondents suggest that this is not a problem, 
and that district courts can sort out any conflicts 
between New York’s standard and Strickland on a 
case-by-case basis. In support, they cite Flores v. 
Demskie, 215 F.3d 293 (2d Cir.), cert, denied, 531 U.S. 
1029 (2000), as an example where the federal courts 
got it right. But Flores underscores the persistent 
gap between the New York and federal standards, 
and the need for this Court’s review. In Flores, the 
Second Circuit granted habeas relief, rejecting the 
New York court’s holding that, because the counsel 
committed a single, egregious error, counsel’s “totality 
of representation” was adequate. Id. at 297, 305.



9

Nevertheless, the New York Court of Appeals has 
continued to apply—indeed reaffirmed—its own 
holding in Flores that individual errors do not “them­
selves render counsel constitutionally ineffective 
where his or her overall performance is adequate.” 
People v. Turner, 840 N.E.2d 123, 126 (N.Y. 2005).

2. Contrary to respondents’ suggestion, this 
Court should not deny review simply because the 
constitutionality of the meaningful representation 
standard is “virtually unique” to New York. Opp. 9. 
New York accounts for almost all of the Second Cir­
cuit’s population, and the State has jurisdiction over 
more people than either the First or Tenth Circuits. 
And, as amicus National Association of Criminal 
Defense Lawyers explains, the structural deficiencies 
in New York’s indigent defense systems make it 
virtually certain that the deficient representation 
that Rosario received is common, not an outlier. 
NACDL Br. 15-18. Thus, absent this Court’s review, 
an entire category of New York defendants will be 
deprived of the constitutional protections of the Sixth 
Amendment, except through the deferential lens of 
federal habeas, due solely to the random coincidence 
of geography.

Nor are the issues in this case too New York­
centric to warrant full briefing and argument. As the 
petition demonstrates, this is not a close case. And 
because the Second Circuit effectively stands alone 
among the courts of appeals in condoning the use of a 
state standard that is contrary to and less protective 
than Strickland, summary reversal would be appro­
priate.



10

C. If The State Court Had Applied Strickland,
Rosario Would Have Been Granted Relief

The state court’s failure to apply Strickland 
made a difference in this case—just as it will continue 
to make a difference in other cases if this Court 
denies review. There is little doubt that had the state 
court applied Strickland, it would have granted relief. 
Contrary to respondents’ contention, all three mem­
bers of the Second Circuit panel, the district court 
judge, and the magistrate judge accepted that Rosario 
suffered a Strickland violation. Pet. App. 17a. In­
deed, as Judge Pooler’s dissent from the denial of 
rehearing en banc explained: “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.” Pet. App. 248a.

Yet respondents take great pains to muddy the 
record by suggesting that trial counsel made a con­
scious choice to forgo a Florida alibi investigation. 
Opp. 5-7. That bald assertion is not only implausible, 
but easily belied by the record. Pet. App. 26a-27a 
(Straub, J., dissenting in part and concurring in 
part). Trial counsel, Hartsfield, requested court 
approval to send her investigator to Florida for the 
sole purpose of finding all available alibi witnesses. 
C.A. App. A-1032-1034, A-1874. She had no strategic 
reason for not pursuing this investigation. C.A. App. 
A-1046-1050. In support of Hartsfield’s request, 
her investigator affirmed by affidavit that she was 
“unable at a long distance to render an effective



11

investigation on this very serious case” due to her 
inability to contact numerous alibi witnesses. C.A. 
App. A-1876. Kaiser, who represented Rosario at 
trial, believed “alibi witnesses in Florida who were 
only unearthed because of on-the-ground legwork by 
the appellate counsel’s investigator * * * would have 
strengthened” Rosario’s alibi defense and “may have 
caused a very different result in the outcome.” C.A. 
App. A-1965, A-1183-1184; see also C.A. App. A-1192- 
1193. Indeed, even the state court recognized that 
neither Hartsfield nor Kaiser ever explained or 
justified their failure to conduct a Florida investiga­
tion. Pet. App. 225a-226a.

Nor does the record support respondents’ conten­
tion that Rosario’s trial counsel and investigator 
“spoke to many, if not all, of the witnesses” presented 
by post-conviction counsel. Opp. 5. Of the seven 
witnesses who testified at the state post-conviction 
evidentiary hearing, only two—Minerva Godoy and 
Fernando Torres—were contacted by Rosario’s defense 
team before trial. C.A. App. A-1568-1580, A-1323- 
1324, A-1187-1188. None of the five other post­
conviction alibi witnesses was investigated by Ro­
sario’s trial defense team, let alone asked to testify at 
trial. C.A. App. A-1463 (R. Ruiz), A-1500-1502 (C. 
Ruiz), A-1623-1624 (Hernandez), A-1666-1668 (Rivera), 
A-1716-1718 (Serrano). Moreover, any speculative 
concerns that potential witnesses may have had 
about the cost of testifying at trial, Opp. 5-6, would 
have been obviated by New York’s statutory provi­
sions authorizing payment of witnesses’ expenses—



12

provisions of which Kaiser had no knowledge, C.A. 
App. A-1127-1130, A-1184-1187.

Respondents’ discussion of Rosario’s impeached 
testimony, which involved an irrelevant, prior arrest 
and detention in Florida, C.A. App. A-791-793, merely 
highlights the prejudice that resulted from his coun­
sel’s error. As the panel dissent noted, the jury was 
faced with a “credibility battle” between the prosecu­
tion’s two eyewitnesses and the defense’s two alibi 
witnesses along with Rosario himself. Pet. App. 31a 
(Straub, J., dissenting in part and concurring in 
part). Had the jury heard the seven post-conviction 
witnesses—-especially Chenoa Ruiz and Fernando 
Torres, disinterested witnesses who saw Rosario in 
Florida on the day of the Bronx murder, C.A. App. 
A-1302, A-1308-1310, A-1495, A-1501, A-1519—there 
is little reason to doubt that those additional witness­
es “could have made all the difference in the world.” 
Pet. App. 37a (Straub, J., dissenting in part and 
concurring in part). Instead, the only alibi evidence 
at trial came from the testimony of Rosario, whom 
the prosecutor claimed was lying about his brief 
incarceration in Florida, C.A. App. A-935-937, and the 
testimony of John Torres and Jenine Seda, whom the 
prosecutor argued were lying for their friend, C.A. 
App. A-929.

The prejudice to Rosario was compounded by 
what the panel dissent called the “paucity of the pros­
ecution’s case, which consisted of only two stranger 
eyewitnesses”—evidence known to be “proverbially 
untrustworthy.” Pet. App. 40a (Straub, J., dissenting



13

in part and concurring in part) (citation omitted). 
Indeed, as amici the Innocence Project and the Na­
tional Association of Legal Investigators and National 
Defender Investigator Association explain, eyewitness 
identifications are inherently unreliable, and a con­
viction based solely on such evidence is particularly 
suspect. Innocence Project Br. 7-21; Nat’l Ass’n of 
Legal Investigators and Nat’l Defender Investigator 
Ass’n Br. 8.

CONCLUSION
For the reasons set forth above and in the peti­

tion, the petition should be granted and the judgment 
summarily reversed. In the alternative, the case 
should be set for briefing and 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) 887-8740 
dmaynard@mofo.com
Carl H. Loewenson, Jr . 
LEDAA. MOLOFF 
Adam J. Hunt 
Morrison & Foerster llp 
1290 Avenue of the Americas 
New York, NY 10104
Counsel for Petitioner

April 18, 2011

mailto:dmaynard@mofo.com