1

02-2747 Hemstreet

v. Grein er UNITED STATES COURT OF APPEA LS 1 F OR THE S ECOND C IRCU IT 2

_____________________ 3 4 August Term, 2006 5 6 (Argued: November 3, 2006 Decide d: June 20, 2007) 7 8 Docket No. 02-2747-pr 9 10

_____________________ 11 12 C HARLES H EMSTREET , 13 Petitioner-Appellee , 14 15 — v.— 16 17 C HARLES G REINER , 18 S UPERI NTENDENT 19 Respondent-Appellant

. 20 21

___________________ 22 23 24 Before: M ESKILL , S ACK , and B.D. P ARKER , Circuit Judges

. 25 26

___________________ 27 28 Appeal from a judgment of the United States District Court for the Southern District of 29 New York (Brieant, J .) granting the petition for a writ of ha beas corpus.. 30 31 REVERSED and REMANDED with instructions to DISMI SS the petition. 32 Judge Meskill dissents in a separate opinion. 33 34

___________________ 35 36 M ONIC A R. J ACOBSO N , P.C., New York, NY, for Petitio ner37 Appellee

. 382 M ICHAEL E. B ONGIOR NO , D IS TRI CT A TTORNEY , R OCKLA ND 1 C OUNTY (Ann C. Sullivan, Special Assistant 2 District Attorney, of counsel) New City, NY, for 3 Respondent-Appellant

. 4 5

___________________ 6 7 B ARRI

NGTON D. P ARKER , C IR CUI T J UDGE : 8 Following his murder conviction in New York state court, Petitioner Charle s Hemstreet 9 sought a writ of habeas corpus principally on the ground of ineffective assistance of counsel. He 10 claimed t

hat offic ers inve stigatin

g the mur der had i ntimidate d a potent

ially exculpatory

witness, 11 causing her not to testify at trial, and that counsel had omitted to pursue this issue both at trial 12 and on appeal. Based on these allegations, as well as trial counsel’s failure to supply an 13 alternative explanation for not calling the potentially exculpatory witness, the United States 14 District Court for the Southern District of New York (Briea nt, J .) gra nted the p etition an

d this 15 Court affirmed. See Hemstreet v. Greiner , 367 F.3d 135, 136 (2d Cir. 2004) (“ Hemstreet I

”). 16 Shortly after we issued our opinion, the witness contacted the district attorney ’s office 17 resp onsib le for pro secu ting the c ase a

nd re canted he

r pote ntial ly excul pato ry state ments . We 18 then nostra spon tevacated our opinion along with the district court’s judgment a nd, retaining 19 jurisdiction, remanded the case to the district court to evaluate the ef fect of the recantation. See 20 Hemstreet v. Greiner , 378 F.3d 265, 268-69 (2d Cir. 2004) (“ Hemstreet II

”); see also United 21 States v. Jacobson , 15 F.3d 19, 21-22 (2d Cir. 1994). On remand, the district court, following a n 22 evidentiary he aring, adhered to its previous conclusion and, once again, granted the petition. See 23 Hemstreet v. Greiner , No. 02 Civ. 1667 (CLB), 2005 WL 3434412 (S.D.N.Y. Oct. 13, 2005) 241 Familiarity with Hemstreet I , II and III is presumed. 3 (“ Hemstreet III

”). 1 Because we conclude that He mstreet failed to establish that the state court’s 1 resolution of his claim of ineffective assistance of counsel was unreasonable, we reverse a nd 2 remand to the district court with instructions to dismiss the petition. 3 BACKGROUND 4 Hemstreet was convicted in January 1998 in New York Supreme Court, County of 5 Rockland of the second-degree murder in 1992 of his business partner, Kenneth Hiep. On direct 6 appeal, Hemstreet’s counsel challeng ed the sufficiency of the evidence supporting the verdict. 7 The Appellate Division affirmed the conviction. See People v. Hemstreet, 270 A.D.2d 499 (2d 8 Dep’t 2000). Hemstreet petitioned that court for a writ of e rror coram nob is on the ground that 9 he was denied effective assistance of trial and appellate counsel. Specifically, he claimed that 10 appellate counsel had failed to pursue a meritorious ineff ective assistance of counsel claim on 11 direct appeal. The claim aga inst trial counsel was based on his failure to seek a remedy for the 12 prosecu

tion’s all eged in

timidation

of a pote ntially exculpatory

defense witness. T

he Appel late 13 Division denied the petition because Hemstreet had “failed to esta blish that he was denied the 14 effective assistance of appellate c ounsel.” People v. Hemstreet , 290 A.D.2d 458, 459 (2d Dep’t 15 2002). He

mstreet t hen file d the peti

tion for a writ of ha

beas cor pus that un

derlies t his appea l, 16 asserting ineffective assistance of appellate counsel on largely the same grounds. 17 Hemstreet’s petition centers on the alleged intimidation of a potentially exculpatory 18 defense witness, Jeanette Bucci, by officers investigating the Hiep murde r. In a June 1997 19 affidavit prepared and notarized prior to trial by “‘an interim attorney

of sorts’ for Mr. 204

Hemstreet,” Hemstreet III , 2005 WL 3434412, at *4, Bucci swore that on the nig ht of the 1 murder, she had seen Hiep, Hemstreet, and Patric k Bentz (a friend of Hemstreet’s who was 2 separa

tely convicte d of murde

ring Hie p) toge ther at a bar whe re she worked. Accordin g to 3 Bucci’ s affida

vit, the thr

ee men le ft the ba

r at aro und 9:45 tha

t evening but Hiep a

nd Bentz 4 returned at about 10:30 without Hemstreet. Bucci also stated in her affidavit that in 1992 she had 5 given essentially

the same information to investigators from the district attorney ’s office. 6 In November 1997 detec tives visited Bucci’s parents’ home, and the following da y met 7 with Bucci at her workplace. Acc ording to the detectives’ notes from that meeting, B ucci gave a 8 statemen

t mostly consiste nt with her

affida vit. She ad

ded that d espite not seeing

Hemstre et in 9 the bar at 10:30, he “could have been there .” 10 If true, Buc ci’s statements would have supported the defense’s theory that Bentz had 11 taken Hemstreet home prior to killing Hiep. However, a t trial Hemstreet’s attorney informed the 12 court that Bucci was refusing to testify or to meet with him because investigators had visited her 13 mother and sister and warned them that, if Bucci testified, “ they were in for a lot of trouble.” See 14 Hemstreet I

, 367 F.3d at 137. Trial counsel did not seek to remedy this alleged intimidation 15 other than by asking the court to stop any future threats. See id

. 16 In reviewing Hemstreet’s habeas petition, the district court found that this conduct 17 amounted

to ineffe ctive as sistance

of counse l becaus e “‘[n]o pla usible ba sis in tria

l tactics could 18 justify failure to pursue the issue [of Bucci’s alleged intimidation] by demanding a hearing in the 19 trial court.’” Hemstreet I , 367 F.3d at 138 (quoting the district court’s unpublished opinion). 20 Likewise, the court found that “‘ no tactical decision [could] justify failure to raise the issue on 215

direct appeal.’” Id . The cou rt gra nted the p etition. I

t conclud ed that He

mstreet’ s Sixth 1 Amendment rights had been violated and that the Appellate D ivision’s rejection of his ineffective 2 assistance claim was an unreasonable applica tion of clearly e stablished federal law. See id.; 28 3 U.S.C. § 2254(d)(1). 4 On appea

l we conc luded tha

t althoug h “[t]he re cord doe s not defi nitively establish 5 whether the prosecution intimidated Bucci,” the district court did not clea rly err in f

inding that 6 she “became unavailable as a witness to He mstreet because she had been threa tened by dete ctives 7 from the prosecutor’s office.” Hemstreet I , 367 F.3d at 139-40 . Based

on that fin

ding of f act, 8 together with trial counsel’s failure to provide any alternative explanation for not calling Bucci as 9 a witness, we concluded that trial counsel’s performa nce fell below an objective standard of 10 reasonableness. Id . at 140. We further concluded that this deficient performanc e affected the 11 outcome of the trial, and that appellate counsel had an oblig ation to raise the issue on direct 12 appeal. Id . at 140-41. 13 After our opinion was issued, Bucci contacted the Roc kland County District Attorney ’s 14 office and asserted that she had in fac t never been intimidated by the detectives. Hemstreet II , 15 378 F.3d at 268. She admitted to having lied in key portions of her 1997 affidavit, and explained 16 that she now “wanted to make it right.” Id . Based on this recantation, we vacate d our earlier 17 decision, and remanded for the district court to reeva luate the case and to allow Hemstreet the 18 opportunity “to flesh out and otherw ise examine Bucci’s new explanation.” Id . at 269 (f ootnote 19 omitted). 20 On remand, the district court conducted an evidentiary hearing at which several witnesses 216

testified. Hemstreet’s trial counsel, Murray Richman, Esq., testified that he met Bucci for the 1 first and only time around the be ginning of the defense case, after he had informed the court that 2 she refused to appear. He furthe r testified that at that face-to-face me eting, Bucci confirmed that 3 her family ha

d been visited by detec

tives and that she would not testify on Hemstre et’s behalf. 4 He stated that Bucci “seemed re ally disturbed, and I didn’t want to put a witness on that I did not 5 know what she was going to say .” Trial counsel’s daughter, who serve d as co-counsel during the 6 trial, and was present for the meeting, testified tha t Bucci appeared “g enuinely upset.” 7 Bucci o ffere d a stark ly d iffere nt accou nt of this me eting. She testifi ed that tr ial couns el 8 was accompanied not only by his daughte

r but by Hemstree

t himself. Bucci stated that she spoke 9 privately with counsel a nd told him she could not testify because she had falsified her affidavit. 10 She explained that on the night of the murder she left work as soon as her shift ended, and thus 11 was not present to witness Hiep and Bentz return to the bar alone, as she had attested. Bucci 12 further

denied e ver telli ng coun sel or his d

aughte r that the police ha d threat ened he r or her family 13 members. 14 Bucci’s mother testified that she did not remember whether or not the police had visited 15 her in 1997, and she did not remember being threa tened. Bucci’s sister testified that she was not 16 present

for the d etective s’ visit, bu

t that her mother tol d her tha

t the polic e had come to her house 17 asking to speak with Jeanette. She stated that her mother gave no indication that the detec tives 18 had threatened her. The detectives the mselves testified that they only visited Bucci’s mother’s 19 house in or

der to loc ate Buc ci herse lf, and that they never th reatened Bucc i or her f

amily 20 members. They e xplained that their conversation with Bucci’s mother consisted solely of a brief 217

inquiry as to Buc ci’s whe

reabout s. 1 The district court concluded – given the testimony of Bucci’s mother and sister, as well as 2 the detectives who interviewed Bucci in 1997 – that there was not sufficient evidence to support 3 a finding that the police had “actually threatened or intimidated Ms. Bucci or that their conduct 4 would be regarded by a reasonable individual as threatening.” Hemstreet III , 2005 WL 3434412, 5 at *10. Nevertheless, the district court found that Bucci ha d “conveyed clearly

to Mr. Richman a 6 feeling of intimidation, whether or not reasonable.” Id . (emphasis added). 7 The cour

t reasoned that the only

way it could “ justly deny Petitioner ’s habeas petition i s if 8 it were convinced that Bucci’s testimony together with her prior exculpatory statements and 9 affidavit [at the time of the trial] could not have raised a reasonable doubt in the minds of the 10 jurors.” Id . at *13. Applying this standar d, the court concluded that even if it were to find 11 Bucci’ s recan

tation cr edible – w

hich it did n

ot – trial c ounsel ac

ted unre asonably

in failing to 12 compel her testimony base d on what he knew at the time. See id. at *10, *15. 13 The court further concluded that trial counsel’s de ficient performance prejudiced 14 Hemstre et, since

“Bucc i’s exculpa

tory testimony

, even wi th a possib le reca

ntation . . . likely 15 would have raised a reasonable doubt” in the minds of the jury

. Id . at *16. The court found that 16 the outcome of Hemstreet’s direct appeal likely would have been different had appellate counsel 17 raised the issue of trial counsel’s ineffectiveness. See id. at *17. 18 DISCUSSION 19 I. Standards of Review 20 We review a district court’s decision to grant or deny a habeas petition de novo and its 218

findings of fact for clear e rror. Policano v

. Herber t , 430 F.3d

82, 87 (2d

Cir. 2005) ; Gersten v. 1 Senkowski , 426 F.3d 588, 606 (2d Cir. 2005). 2 Under the Antiterrorism and Effective Dea th Penalty Act of 1996 (“ AEDPA”), a federal 3 court ma

y g rant a ha beas pet ition base d on a cla

im that wa s adjudic ated on the merits i n state 4 court where such adjudic ation “r esulted in a decisi on that . . . involved a n unreas onable 5 application of [] clearly established F ederal law, as determined by the Supreme Court of the 6 United Sta

tes.” 28 U .S.C. § 2254 (d)(1) ; see Harris v. Kuhlmann , 346 F.3d 330, 342 (2d Cir. 7 2003). The Appella te Division’s reje ction of H emstree t’s coram nob is petition on the grounds 8 that Hemstreet ha

d “faile d to estab lish that he was deni ed the ef

fective assistanc e of appe llate 9 counsel,” People v. Hemstreet , 290 A.D.2d at 459, represents an adjudication on the merits for 10 purposes of § 2255(d). See Mosby v. Senkowski , 470 F.3d 515, 519 (2d Cir. 2006); Jimenez v. 11 Walker , 458 F.3d 130, 141 (2d Cir. 2006). 12 Hemstreet’s ineffective assistance cla im, moreover, “necessarily invokes federal law that 13 has been ‘clearly established’ by the Supre me Court within the meaning of AEDPA.” Sellan v. 14 Kuhlman , 261 F.3d 303, 309 (2d Cir. 2001). The Supreme Court set forth the test for such 15 claims in Strickland v. Washington , 466 U.S. 668 (1984). To establish ineffective assistance of 16 counsel under Strickland , Hemstreet must demonstrate (1) that his counsel’s performanc e was 17 deficient, and (2) “that the deficient perf ormance prejudiced the defense.” Strickland , 466 U.S. 18 at 687. The first component “requires showing that counse l made errors so serious that counsel 19 was not functioning as the ‘counsel’ gua ranteed the defendant by

the Sixth Amendment.” Id

. 20 The second requires “a rea sonable probability that, but for c ounsel’s unprofessional errors, the 219

result of the proceeding would have be en different.” Id . at 694. 1 To establish eligibility for habe as relief under AEDPA’s defere ntial standard, Hemstreet 2 must demonstrate that the Appellate Division’s application of Strickland was not me rely 3 incorrect, but “‘objectively unreasonable.’” Loliscio v . Goord , 263 F.3d 178, 184 (2d Cir. 2001) 4 (quot ing Williams v. Taylor , 529 U.S. 362, 409 (2000)). An objectively unreasonable application 5 involves “[s]ome increment of incorrectness bey ond error.” Sellan , 261 F.3d at 315 (internal 6 quotation marks omitted). 7 II . Merits 8 The district court summarily conc luded that the Appellate Division’s denial of 9 Hemstre et’s coram nob is petition was an unreasonable application of Strickland because “the 10 trial and direct appeal could not reasonably be relied upon as having produced a just re sult.” 11 Hemstreet III

, 2005 WL 3434412, at *17. Although the district court adverted to AEDPA’s 12 deferential standard of review, we are not persuaded that it was correctly applied. We need not 13 determine conclusively whether the district court misapplied AEDPA because we f ind that 14 Hemstreet failed to carry the less stringent, though still weighty, burden of proving that he 15 received ineffective assistance of counsel. See, e.g. , Greiner v . We lls , 417 F.3d 305, 317 (2d Cir. 16 2005) (noting that because petitioner’s ineffe ctive assistance claim fails, “[w]e need not consider 17 the propriety of the [district court’s] other conclusions – including [its] application of the 18 heighte

ned AEDPA

defere nce of 28 U.S.C. § 225 4(d)”) ; cf

. Eze v. Senkowski , 321 F.3d 110, 112 19 (2d Cir. 2003) (observing that “the heavy burden of showing ineffective assistance ” is “enhanced 20 by the added hur dle posed by the hig

hly defer ential review accorded state cour t adjudications 212 The inverse, of course, would not hold true. Even if we we re to conclude that the Appellat e Division

had err ed in deny

ing Hem street’ s coram nob is petition, and that he had presented a colorable claim under Strickland , AEDPA wo uld never theless r equire u s to defe

r to the state court’s determination unless it was objectively unreasonable. See, e.g. , Sellan , 261 F.3d at 317 (“Were we to consider [the Appellate Division’s] decision under a pre-AEDPA de novo level of deference we mig ht find error. . . . But [petitioner’s] claim was not so strong that it was unreasonable for the cor

am nobis c ourt to conclude that appel late cou nsel's p osition wa s within the bounds of professional conduct under Strickland .”). 10 under [AEDPA]” (citations omitted)). Because Hemstreet ca nnot demonstrate ineffective 1 assistance under Strickland , it follows that he cannot demonstrate that the Appellate Division’s 2 denial of his petition was an unreasonable application of clea rly established fe deral law. 2 3 Under Strickland , we “‘in dulge a strong presumption that cou nsel’s c onduct fa

lls within 4 the wide range of reasona ble professional assistance.’” United Sta tes v. Kurt i , 427 F.3d 159, 163 5 (2d Ci r. 200 5) (qu otin g Strickland , 466 U.S. at 689). A principal basis for the district court’s 6 original decision to grant Hemstreet’s pe tition, as well as for this Court’s now-vacated 7 affirmance of that decision, was “trial counse l’s failure to seek relief for the intimidation of 8 Bucci, a crucial defense witness.” Hemstreet I

, 367 F.3d at 138. But on remand the district court 9 found insufficient evidence to conclude that Bucc i actually had be en intimidated, and also found 10 that a reasonable person would not have perc eived the detectives’ conduct to be intimidating. 11 Hemstreet III

, 2005 WL 3434412, at *10. 12 We believe that these findings, in and of themselves, larg ely eviscer ate Hemstreet’s 13 ineffective assistance claim. Nonetheless, the district cour t relied on Bucci’s allegedly having 14 convey

ed to tria l counsel a subjective fee ling of i

ntimidation, “whet

her or not reasonable,” i

n 15 concluding that counsel had acted unreasonably by failing to pursue the issue. See id. at *10-11. 163 At the hearing before Judge B rieant, Richman contradicted his earlier statement to the

trial court by testify

ing that he had in fact not spoken personally with Bucci when he represented to the trial court that she had been intimidated by the detectives. See Hemstreet III , 2005 WL 3434412, at *5. 11 To reach that conclusion the district court curiously dismissed, as “entitled to little or no weight,” 1 id . at *11, the more direct explanation trial counsel offered for w hy he dec ided not to pursue 2 Bucci’s testimony more aggressively

– namely, that he fe ared her testimony might not be 3 favorable to Hemstreet. I nstead, the district court relied on trial counsel’s 2002 Sparman 4 affida

vit, in whic

h he offe red no expl anation a

t all for n ot calling Bucci a s a witnes s, along with 5 his representation to the trial court that Bucci told him that she had been intimidated. 3 See id.; 6 see also Sparman v. Edwards , 154 F.3d 51, 52 (2d Cir. 1998) (per curiam). We previously found 7 this evidence, however inconclusive, sufficient to support a cla im of ineffective assistance. 8 Hemstreet I

, 367 F.3d at 140. But after our remand our unde rstanding of the circumstances 9 surrounding counsel’s decisions at trial has become more complete. Once we accept the district 10 court’s conclusion that there was no evidence that B ucci had actually been intimidated, we are 11 hard-pressed to understand how trial counsel could be f aulted for not pursuing the issue. 12 Although we do not believe trial counsel’s performa nce was deficient, we are not 13 required to resolve that issue. Even assuming such defic iency, the re cord does not show that 14 Hemstreet suffered prejudice fr om any alleg ed omissions by his counsel. We therefore conclude 15 that Hemstreet cannot satisfy the Strickland standard as to the assistance he received a t trial. See 16 Strickland , 466 U.S. at 697 (“[T]here is no reason for a court deciding a n ineffective assistance 17 claim . . . to address both components of the inquiry if the defendant makes an insufficient 1812

showing on one.”). Hemstreet’s inability to make this showing means that he also cannot 1 demonstrate that his appellate counsel had any obligation to raise the issue of trial counsel’s 2 ineffectiveness on direct appeal. 3 Even though Bucci was not actually intimidated, even though it was unclear what her 4 testimony

would have added

to Hemstr

eet’s de fense, a

nd even th

ough ca lling he r was, in 5 counsel’s view, risky, the district court concluded that Hemstreet was prejudiced be cause trial 6 counsel should have, but failed to, compel the testimony of this “crucial alibi witness.” 7 Hemstreet III

, 2005 WL

3434412, a

t *3; see id. at *16. Specifically, the c ourt found that in light 8 of Bucci’s affidavit, along with her contemporaneous consistent statements to the police, “[t]he 9 actual innocence of Mr. Hemstreet ca nnot be ruled out.” Id . Because we disagr ee that Bucci’s 10 testimony would have been suf ficiently probative to a

lter the outcome of the trial, we cannot 11 conclude that Hemstreet suffered pre judice as a result of her not being called to testify . Unlike 12 the determination of trial counsel’s performance unde r the first prong of Strickland , the 13 determination of prejudice “may be made with the benefit of hindsight.” Mayo v. Henderson , 13 14 F.3d 5 28, 53 4 (2d C ir. 19 94) (ci ting Lockhart v . Fretwell , 506 U.S. 364, 372 (1993)). 15 Since Bucci offered differ ent versions of the salient events at different times, no one – 16 particularly tria

l counsel – can say

with any confidenc e what her testimony would have been. 17 But assuming Bucci would have testified at trial c onsistently with her affidavit and the statement 18 she gave to detectives in November 1997, her testimony would have contra dicted the sequence of 19 events on the night of the murder established by three other witnesses, as well as by Hemstreet 20 himself. 2113

Bucci stated in her affidavit that she saw Hiep, B entz, and Hemstreet enter the L ace bar, 1 where she worked, at around 6:00 PM, and saw the thre e men leave together around 9:45 PM. 2 Bucci further stated that at approximately 10:30 PM she saw Bentz and Hiep walk back into the 3 bar, without Hemstreet. At 10:45 PM, she left the bar and went home. 4 Bu cc i m ad e n o m en ti on in he r a ff id av it or to th e p ol ic e o f a fo ur th me mb er of th e p ar ty, 5 Joseph Patta, who according to other witnesses arrived at the ba r that night with Hemstreet, Hiep, 6 and Bentz. Nor did she mention that Hiep’s son, Kenneth Hiep, Jr., and another man, I rv 7 Kiegler, eventually joined the party. Ac cording to Hiep, Jr., he and Kiegler ar rived at the bar 8 around 4 :30 or 5:30 PM, and the

others we

re alre ady there. B ucci’s a

ccount a lso confl icts with 9 that of two other witnesses who testified they saw Bentz, Hemstreet, and Hiep, Sr. arrive at 10 another local bar at around 8:30 PM – an hour prior to the time Buc ci allegedly saw them leave 11 Lac e. Most impo rtantly , Hemstre et himself

told both Hi ep, Jr. and

the polic e that he

and Ben tz 12 together dropped Hiep, Sr. off at home betwe en 11 and 11:30 PM – after Bucci said she saw 13 Bentz and Hiep, Sr. return alone to the L ace bar, and also after B ucci said she herself had gone 14 home. 15 While Bucci’s testimony would have suffered from these substantial weaknesses, the 16 prosecution’s case against Hemstree t was independently strong . The trial testimony established 17 that Hemstreet ar guably confess ed to murd

ering Hiep to two s eparat e individu

als on two s eparat

e 18 occasions. He told the first , “I

did it” and that he had “made his bones”

with Hiep . He told 19 another witness that “it was a contract hit,” and that two men who had a llegedly ordered the 20 murder “ owed him b ig time.” The pros ecution a

lso estab lished tha

t Hemstre et had a p lausible 2114

motive: allegedly

he told one witness, prior to the murder, that he was angr y at Hiep for

stealing 1 a substantial amount of money fr om the trash-hauling business they jointly owned. On the day of 2 the murde

r, the sa me witnes s observe d Hemstre et and Hie p enga ged in a heated a rgumen t. 3 In addition, significant circ umstantial evidence implicated Hemstreet in the murder. The 4 day afte

r the murder, multiple witnesses observed Hemstreet with fresh cuts on his hands, for 5 which he offered evasive and inconsistent explanations. Hemstree t tried to dissuade Hiep, Jr. 6 from calling the police to report his father’s disappe arance. And though the district court 7 acknowledged that “[o]verwhelming items of fore nsic evidence connected Bentz to the murder,” 8 Hemstreet III

, 2005 WL

3434412, a

t *1, much o f the same

evidenc e – includ

ing Hie p’s blood i

n 9 Hemstre et’s ca

r – also imp licated H emstree t. 10 In lig

ht of this e

vidence , we are

not prepa red to conclude there wa s a reas onable 11 likelihood that the testimony of a witness of questionable ve racity, who, a

t best, would have 12 offered a version of events that was inconsistent with that established by multiple other 13 witnesses, would have changed the outcome of the trial. Cf. Strickland , 466 U.S. a t 694. I t is 14 even less likely that, but for a ppellate counsel’s failure to raise the issue of trial counse l’s 15 ineffectiveness, Hemstreet’s direct appe al would have achieved a differe nt result. We therefore 16 conclude that Hemstreet did not suffer prejudice unde r Strickland as a consequence of trial 17 counsel’s failure to call Bucci. I t necessarily f

ollows that the state court’s denial of Hemstreet’s 18 coram nob is petition was not an unreasonable application of clearly established federal law. 19 CONCLUSION 20 For the f

orego ing reasons, the j udgmen t of the district cou

rt is REVERS ED, and the case 2115

is REMANDED to the district court with instructions to DISMI SS the petition. 1 2 3 4 516

Hemstreet v. Greiner #02-2747 1 2 MESKILL, Circuit Judge , dissenting: 3 I respectfully dissent. 4 The majority opinion holds that Charles Hemstreet’s 5 (Hemstreet) petition for a writ of habeas corpus must be denied 6 because “the record does not show that Hemstreet suffered 7 prejudice from any alleged omissions by his counsel.” The 8 majority marshals the evidence of Hemstreet’s guilt as if the 9 sufficiency of the evidence, considered in light of Jeanette 10 Bucci’s (Bucci) recantation of her June 1997 affidavit, was the 11 reason we remanded this case to the district court. However, 12 earlier when we considered the original grant of the writ 13 petition, we noted the weakness of the prosecution’s case against 14 Hemstreet and “agree[d] with the district court that trial 15 counsel’s deficient conduct affected the outcome of Hemstreet’s 16 trial.” Hemstreet v. Greiner , 367 F.3d 135, 140 (2d Cir. 2004) 17 ( Hemstreet I ). Later, alerted to Bucci’s apparent recantation, 18 we remanded with instructions for the district court to “evaluate 19 the effect of Bucci’s new information on Hemstreet’s habeas 20 petition while at the same time allowing Hemstreet an 21 opportunity, by whatever means it thinks appropriate, to flesh 22 out and otherwise examine Bucci’s new explanation.” Hemstreet v. 231 We clarified that “[w]e do not mean to suggest that the

district court is limited to this inquiry on remand. In addition to any proceedings necessary in light of Bucci’s new information, the district court is free to accept or solicit any other information that bears on the resolution of Hemstreet’s habeas petition.” Hemstreet II , 378 F.3d at 269 n.1. 17 Greiner , 378 F.3d 265, 269 (2d Cir. 2004) ( Hemstreet II ). 1 1 Judge Brieant did exactly what we directed him to do. 2 He held evidentiary hearings over a two-day period, taking 3 testimony from all ten witnesses involved in defense counsel 4 Murray Richman’s (Richman) decision not to call Bucci as an alibi 5 witness. See Hemstreet v. Greiner , 2005 WL 3434412, at *3 6 (S.D.N.Y. Oct. 13, 2005) ( Hemstreet III ). We review the district 7 court’s findings of fact concerning a habeas petition for “clear 8 error,” see Taveras v. Smith , 463 F.3d 141, 146 (2d Cir. 2006). 9 Based on this record, the district court should not be faulted 10 for crediting some but not all of the testimony. For example, 11 Richman declared in his 2002 Sparman affidavit that he could not 12 “with any degree of certainty assert why Ms. Bucci was not called 13 as a witness during the course of the trial.” Judge Brieant 14 understandably was unconvinced by Richman’s refreshed 15 recollection during the proceedings on remand -- testimony that 16 rationalized a decision defense counsel made more than seven 17 years earlier. Judge Brieant also had good reason to question 18 the truthfulness of Bucci’s recantation. She waited more than 192 Judge James L. Oakes authored Hemstreet I , 367 F.3d at 136,

with Judge Parker dissenting. When Judge Oakes retired after the remand, Judge Sack replaced Judge Oakes on this panel. Our earlier decision was vacated, Hemstreet II , 378 F.3d at 269. I am not suggesting that any member of this panel should be bound by the views expressed in Hemstreet I , but rather to suggest that successive panels reviewing essentially the same record should reach the same result. 18 seven years to contact the Rockland County District Attorney’s 1 office to claim that her June 1997 affidavit was false. Had I 2 been the district court judge considering this case on remand, I 3 might have reached different conclusions from Judge Brieant 4 regarding the credibility of the witnesses and their accounts of 5 Bucci’s fears and Richman’s decision not to call her as a 6 witness. However, I was not the district judge on remand. On 7 this cold record I cannot say that the district court’s factual 8 findings are clearly erroneous. 9 The majority does not appear inclined to disturb these 10 factual findings either. Nonetheless, in reversing the district 11 court, the majority considers other evidence of Hemstreet’s 12 guilt, evidence we believed in Hemstreet I so flimsy that the 13 conduct of defense counsel likely prejudiced Hemstreet. Somehow 14 to the majority that evidence is now strong enough to preclude 15 prejudice to the defense from Bucci’s failure to testify. 2 I 16 recognize that Hemstreet II vacated Hemstreet I and that this 17 panel is not bound to follow our initial analysis of prejudice 183 The majority assumes that Bucci would have testified at

trial in conformity with the June 1997 affidavit and her November 1997 statement to detectives. 19 under the second prong of Strickland v. Washington , 466 U.S. 668 1 (1984). Nonetheless, I believe that Hemstreet I correctly 2 concluded that the prosecution’s largely circumstantial case 3 against Hemstreet was far from overwhelming. We observed that 4 the prosecution’s strongest evidence against Hemstreet was that 5 the victim, Kenneth Hiep (Hiep) was last seen in the company of 6 both Patrick Bentz (Bentz), who was separately convicted for the 7 murder, and Hemstreet, and that no one saw Bentz and Hiep alone 8 that night. See Hemstreet I , 367 F.3d at 141. Yet Bucci’s June 9 1997 affidavit stated that “[a]t about 10:30 pm [on the night of 10 the murder] I noticed Mr. Bentz and Mr. Hiep walk into Lace. Mr. 11 Hempstreet [sic] was not with them.” 3 The majority observes that 12 other witnesses provided a different timeline of that night’s 13 events, and that Bucci’s account failed to mention others who 14 joined the party that night. Admittedly this evidence bears on 15 Bucci’s credibility. However, that credibility is a question the 16 jury should have been permitted to assess. Bucci’s 1997 17 affidavit was exculpatory and directly challenged the 18 prosecution’s theory of the case, a case that was built largely 19 on circumstantial evidence. 20 Finally, although the majority does not rest its 2120

holding on the first prong of Strickland , it concludes that trial 1 counsel’s performance was not deficient. I disagree with their 2 conclusion that the district court’s findings on remand “largely 3 eviscerate Hemstreet’s ineffective assistance claim.” Strickland 4 emphasizes that, “[a] fair assessment of attorney performance 5 requires that every effort be made to eliminate the distorting 6 effects of hindsight, to reconstruct the circumstances of 7 counsel’s challenged conduct, and to evaluate the conduct from 8 counsel’s perspective at the time .” Strickland , 466 U.S. at 689 9 (emphasis added). Although the district court ultimately 10 concluded that “there is insufficient evidence to conclude 11 Detectives Murphy and Hill actually threatened or intimidated Ms. 12 Bucci or that their conduct would be regarded by a reasonable 13 individual as threatening,” Judge Brieant nonetheless found that 14 “Bucci conveyed clearly to Mr. Richman a feeling of intimidation, 15 whether or not reasonable.” Hemstreet III , 2005 WL 3434412, at 16 *10. Regardless of its objective basis, it was Bucci’s actual 17 fear that is crucial to assessing Richman’s diligence in pursuing 18 Hemstreet’s defense. Although “strategic choices made after 19 thorough investigation of law and facts relevant to plausible 20 options are virtually unchallengeable,” Strickland , 466 U.S. at 21 690, “counsel has a duty to make reasonable investigations or to 22 make a reasonable decision that makes particular investigations 2321

unnecessary.” Id . at 691. Judge Brieant found that Richman did 1 neither. That finding is not clearly erroneous. Counsel’s 2 decision not to call Bucci as a potential alibi witness is not 3 entitled to deference because he made little effort to discover 4 the source of Bucci’s fear and how any potentially exculpatory 5 testimony might be salvaged. 6 In conclusion, I believe that on remand the district 7 court did exactly what we instructed it to do. The majority, 8 however, faults him for this and reweighs the evidence of 9 prejudice to the defense that the majority of our original panel 10 found troubling. I adhere to my earlier analysis of the 11 prejudice prong of Strickland , and believe that the district 12 court committed no error of law in its analysis. 13 Therefore, I dissent from the majority and would affirm 14 the district court’s issuance of the writ of habeas corpus. 15