08-5521-pr

Rosario v. Ercole

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5

6 At a stated term of the United States Court of Appeals for the Second

7 Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500

8 Pearl Street, in the City of New York, on the 10 day of August, two thousand th

9 ten.

10

11

12 - - - - - - - - - - - - - - - - - - - -X

13 RICHARD ROSARIO,

14

15 Petitioner-Appellant, 

16

17 - v.- 08-5521-pr 

18 

19 SUPT. ROBERT ERCOLE, Green Haven 

20 Correctional Facility, ATTORNEY 

21 GENERAL ELLIOT SPITZER,

22

23 Respondents-Appellees. 

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25

26 ORDER

27 Following disposition of this appeal on April 12, 2010,

28 petitioner-appellant Richard Rosario filed a petition for

29 rehearing and rehearing in banc. Upon consideration by the

30 panel that decided the appeal, the petition for rehearing is

31 DENIED. An active judge requested a poll on whether to

32 rehear the case in banc. A poll having been conducted and

33 there being no majority favoring in banc review, rehearing
2

1 in banc is hereby DENIED. 

2 Judge Wesley concurs in an opinion joined by Judges

3 Cabranes, Raggi, Hall, and Livingston; Judge Katzmann

4 concurs in a separate opinion; Chief Judge Jacobs dissents

5 in an opinion joined by Judges Pooler, Lynch, and Chin; and

6 Judge Pooler dissents in a separate opinion. 

7 FOR THE COURT:

8 CATHERINE O’HAGAN WOLFE, CLERK

9

10

11
1

1 RICHARD C. WESLEY, Circuit Judge, with whom Judge JOSÉ A.

2 CABRANES, Judge REENA RAGGI, Judge PETER W. HALL, and Judge

3 DEBRA ANN LIVINGSTON join, concurring in the denial of

4 rehearing en banc.

5

6 We stand by the panel’s decision in this case and

7 support the Court’s decision not to rehear this case en

8 banc. 

9 As the lead dissent from the denial of rehearing en

10 banc concedes, the New York state standard is more

11 protective of defendants than the federal standard. The New

12 York Court of Appeals has expressed this sentiment in

13 decision after decision. See, e.g., People v. Ozuna, 7

14 N.Y.3d 913, 915 (2006); People v. Turner, 5 N.Y.3d 476, 480

15 (2005) (collecting cases). Yet because the state standard

16 could be misapplied to diminish the prejudicial effect of a

17 single error, members of this Court wish to encroach on the

18 province of the state to demand that it reframe its standard

19 for identifying ineffective assistance of counsel to mimic

20 the less protective federal model. I believe such a drastic

21 measure is unnecessary as a matter of law and unwarranted as

22 a matter of comity. As the court’s opinion in this case

23 holds, an attorney error that prejudiced a defendant under

24 the federal standard would necessarily affect the fairness

25 of the process as a whole under the state standard. Thus,
2

1 to the extent that any state court failed to afford relief

2 for prejudicial error, that oversight would be contrary to

3 both the federal and state standard, and could be dealt with

4 on case by case review.

5 Certainly the failure that the dissent fears did not

6 occur in this case. As detailed in the court’s opinion, in

7 his assessment of the alibi witnesses at the hearing

8 pursuant to New York Criminal Procedure Law 440.10(1),

9 Justice Davidowitz looked specifically at the possible

10 prejudicial effects of the very error at issue here. He did

11 not minimize the mistake, but instead concluded that the

12 omission of the additional alibi witnesses could not support

13 an inference that, but for that omission, the outcome would

14 have been different. The dissent focuses on but one passage

15 from the state court opinion, arguing that Justice

16 Davidowitz “shifted the focus” away from the error to the

17 performance of counsel overall. The dissent fails to

18 recount the full extent of the state court inquiry. As

19 stated in the court’s opinion: 

20 The [state] court noted that the two alibi

21 witnesses that were presented at trial "had the

22 best reason for remembering why defendant was

23 present in Florida on June 19[,] 1996 — the birth

24 of their son — an event that was more relevant for

25 them than the events relied upon by the other
3

1 witnesses." He expressed skepticism as to the

2 probative value of the witnesses presented at the

3 hearing, calling the evidence "in some cases

4 questionable and in others [raising] issues which

5 could have created questions for a deliberating

6 jury. For example, two of the witnesses — Lisette

7 Rivero[] and Denise Hernandez — could not say

8 where the defendant was on June 19 and 20." The

9 judge "studied closely" the alibi witnesses

10 presented at the hearing, and concluded they were

11 "for the most part, questionable and certainly not

12 as persuasive as the two witnesses who did

13 testify, and were rejected by the jury" and the

14 testimony they would have provided was "largely"

15 cumulative. In spite of the failure to call the

16 alibi witnesses, Justice Davidowitz determined

17 "this jury verdict was unimpeached and amply

18 supported by the evidence." (internal quotation

19 marks omitted and emphasis added). 

20

21 Rosario v. Ercole, 601 F.3d 118, 127 (2d Cir. 2010).

22 That said, I agree with the dissent that New York state

23 courts would be wise to engage in separate assessments of

24 counsel’s performance under both the federal and the state

25 standards. See, e.g., People v. McNeill, 899 N.Y.S.2d 840,

26 841 (1st Dep’t 2010). Such an exercise would ensure that

27 the prejudicial effect of each error is evaluated with

28 regard to outcome, and would guarantee that defendants get

29 the quality of overall representation guaranteed under New

30 York state law. This vigilance will also alleviate the risk

31 that the federal courts will force state courts to abandon

32 New York’s generous standard for one akin to the more

33 restrictive federal model. 
-1-

1 KATZMANN, Circuit Judge, concurring in the denial of rehearing in banc. 

2 The dissenters have identified possible challenges posed by New York’s constitutional

3 standard for ineffective assistance of counsel claims. As they note, the New York standard could 

4 leave room for New York courts to find a lawyer effective by focusing on the “fairness of the

5 process as a whole,” People v. Benevento, 91 N.Y.2d 708, 714 (1998), rather than on whether

6 “there is a reasonable probability that . . . the result of the proceeding would have been different”

7 absent defense counsel’s mistakes, Strickland v. Washington, 466 U.S. 668, 694 (1984). See

8 Henry v. Poole, 409 F.3d 48, 70-72 (2d Cir. 2005) (“paus[ing] to question whether the New York

9 standard is not contrary to Strickland”). 

10 As both Chief Judge Jacobs’ dissent and Judge Wesley’s concurrence observe, however,

11 such difficulties can be avoided by separate consideration of counsel’s performance under the

12 federal standard when a federal challenge is presented in the New York courts. For the reasons

13 set forth in the panel’s decision, see Rosario v. Ercole, 601 F.3d 118, 127 (2d Cir. 2010), I am

14 satisfied that the trial court here engaged in such an inquiry, albeit “not delivered in Strickland

15 terminology,” id. (quoting Rosario v. Ercole, 582 F. Supp. 2d 541, 553 (S.D.N.Y. 2008)). 

16 Accordingly, this case does not require us to review New York’s standard. Thus, I concur in the

17 decision of the Court to deny rehearing in banc. 

 
 Senior Circuit Judge Chester J. Straub, the author of 1

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. 

1

1 DENNIS JACOBS, Chief Judge, joined by ROSEMARY S. POOLER,

2 GERARD E. LYNCH, and DENNY CHIN, Circuit Judges, dissenting

3 from the denial of rehearing in banc.

4

5 I agree with the panel majority that the New York

6 standard for ineffective assistance of counsel is more

7 lenient to defendants generally, lacking as it does a “but

8 for” prejudice requirement. See People v. Turner, 5 N.Y.3d

9 476, 480 (2005). But it is nevertheless contrary to the

10 standard set forth in Strickland v. Washington, 466 U.S. 668

11 (1984). I respectfully dissent from the order denying in

12 banc review because this defect likely will give rise to

13 more cases that will bedevil the district courts, which are

14 left to sort out case-by-case a problem that is systemic.1

15

16 I

17 Under federal law, a lawyer is ineffective when conduct

18 that falls “below an objective standard of reasonableness,”

19 Strickland, 466 U.S. at 688, creates “a reasonable

20 probability that . . . the result of the proceeding would

21 have been different,” id. at 694. “[U]nder New York law the
2

1 focus of the inquiry is ultimately whether the error

2 affected the ‘fairness of the process as a whole.’” Rosario

3 v. Ercole, 601 F.3d 118, 124 (2d Cir. 2010) (quoting People

4 v. Benevento, 91 N.Y.2d 708, 714 (1998)). The test

5 articulated by the New York Court of Appeals thus allows a

6 lawyer whose overall performance is adequate to be deemed

7 constitutionally effective notwithstanding an isolated lapse

8 that calls the result into question--the very scenario that

9 triggers relief under Strickland. The New York standard is

10 fairly unambiguous: 

11 Two of our decisions have rejected ineffective

12 assistance claims despite significant mistakes by

13 defense counsel (People v. Hobot, 84 N.Y.2d 1021

14 (1995); People v. Flores, 84 N.Y.2d 184 (1994)). 

15 Those cases hold, and we reaffirm today, that such

16 errors as overlooking a useful piece of evidence

17 (Hobot), or failing to take maximum advantage of a

18 Rosario violation (Flores), do not in themselves

19 render counsel constitutionally ineffective where

20 his or her overall performance is adequate. But

21 neither Hobot nor Flores involved the failure to

22 raise a defense as clear-cut and completely

23 dispositive as a statute of limitations. Such a

24 failure, in the absence of a reasonable

25 explanation for it, is hard to reconcile with a

26 defendant’s constitutional right to the effective

27 assistance of counsel.

28

29 Turner, 5 N.Y.3d at 480-81 (emphases added). Thus the New

30 York test averages out the lawyer’s performance while

31 Strickland focuses on any serious error and its

32 consequences.
3

1 In the passage quoted above, the Turner court relies on

2 Flores. That is dubious precedent. In Flores, a case

3 involving a single serious error, the New York Court of

4 Appeals relied on the “totality of representation” to decide

5 that defense counsel’s waiver of a Rosario claim did not

6 constitute ineffectiveness. People v. Flores, 84 N.Y.2d

7 184, 187 (1994). Years later, this Court granted habeas

8 relief, finding “at least a reasonable probability . . .

9 that had that Rosario claim been pressed, Flores would have

10 been granted a new trial by the trial court or on appeal.” 

11 Flores v. Demskie, 215 F.3d 293, 305 (2d Cir. 2000). 

12 Because the New York standard allows the gravity of

13 individual errors to be discounted indulgently by a broader

14 view of counsel’s overall performance, it is contrary to

15 Strickland. 

16

17 II

18 The present case illustrates the constitutional defect

19 in the New York standard. Rosario’s pre-trial and trial

20 counsel admitted an uncommonly bad mistake in believing that

21 the state court had denied an application for funds to send

22 an investigator to find and interview about a dozen alibi

23 witnesses who would swear that the defendant was in Florida
4

1 when the charged crime was committed in New York. This

2 failure was not a misfire of strategy or tactics; it was

3 conceded error. In denying Rosario’s collateral challenge,

4 the Supreme Court of the State of New York acknowledged as

5 much, but then shifted the focus:

6 The best and most reasonable explanation, then, is

7 that there was a misunderstanding or mistake which

8 persisted through the case and which the parties

9 simply cannot explain. But it was not deliberate. 

10 And that does not alter the fact that both

11 attorneys represented defendant skillfully, and

12 with integrity and in accordance with the

13 standards of “meaningful representation” defined

14 by our appellate courts.

15

16 It is this shift--from the specific mistake to the broader

17 performance--that concerns me and should concern the entire

18 Court. 

19

20 III

21

22 I recognize that some colleagues may not consider this

23 case an ideal vehicle for deciding the issue, in view of the

24 state court’s alternative ruling that “an alibi defense was

25 presented through the two witnesses who had the best reason

26 for remembering why” Rosario was elsewhere when the crime

27 was committed, and that the prospective additional alibi

28 witnesses “were, for the most part, questionable and

29 certainly not as persuasive as the two witnesses who did

30 testify.” 
5

1 The panel majority seizes on this alternative ground to

2 assert that the state court “considered the prejudicial

3 effect of the errors, and concluded that the outcome of the

4 trial would not have been different but for those errors.” 

5 Rosario, 601 F.3d at 128.

6 The state court’s findings of fact may bear on whether

7 the state court unreasonably applied the correct federal

8 standard, but they do not obviate the need to start with the

9 correct standard; a finding on a mixed question of law and

10 fact (such as prejudice) is suspect (at least) if it is

11 guided by a defective understanding of the law. Moreover,

12 although the state court conducted a hearing that included

13 testimony from seven prospective alibi witnesses, I am

14 unimpressed by the finding that they were “for the most

15 part, questionable,” and that the two who testified at trial

16 were the best of the lot. First, if a witness is without

17 flaw, I tend to suspect perjury; second, corroboration

18 matters. As the panel dissent forcefully explains, Rosario

19 was seriously prejudiced by the absence of more alibi

20 witnesses. Rosario, 601 F.3d at 131-37, 140-42 (Straub, J.,

21 dissenting). 

22
 At different times, this Court has been of different 2

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).

6

1 IV

2 The full Court took an in banc poll in this case and

3 decided not to revisit the panel’s ruling. But this should

4 not be construed as an imprimatur. 

2

5 I acknowledge that in most instances the state standard

6 is more solicitous of the Sixth Amendment right to counsel

7 than ours, and I respect the measures taken by the New York

8 courts to administer cases in a way that seeks to

9 accommodate a federal standard that is not congruent. That

10 said, members of this Court entertain serious disquiet that

11 in the courts of New York the gravity of individual mistakes

12 may be submerged in an overall assessment of effectiveness,

13 in a way that violates the federal Constitution. 

14 Unneeded conflict can be avoided by separate

15 consideration of counsel’s performance under the Strickland
7

1 standard in the New York courts when a federal challenge is

2 presented. No doubt, there are other ways to the same end. 

3 But without some further vigilance in the state courts, the

4 issue will be presented to us one day in a case in which

5 fact-findings do not blur focus on the constitutional

6 question, and an in banc panel of this Court may be convened

7 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

Strickland 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’ performances separately under the federal and the state standards. Doing so will likely

prevent future defendants from being penalized by a lacuna in a state standard that we have

upheld because it supposedly works to their benefit.