08-5521-pr

Rosario v. Ercole

1 

### UNI TED ST ATE S C OUR T O F A PPE ALS 2 3 

### FOR TH E S ECOND CIRCUI T 4 5 

### At as t at ed t erm o f the Uni t ed S t at es Courtof Appeal s fo r the S econ d 6 7 

### Cir cui t , hel d atthe Dani el Patri ck Moyni han Unit ed S t at es Courthous e, 500 8 

### Pear l Stre et , i n the Ci ty of New York, on the 1 0 day of Augus t , two thous and th 9 

### t en. 10 11 12 

### - - - - - - - - - - - - - - - - - - - - X RIC HAR D R OSA RIO , 13 14 

### Pet iti one r-A ppe lla nt, 15 16 17 

### - v .- 08- 552 1-p r 18 19 

### SUP T. ROB ERT ER COL E, Gre en Hav en 20 

### Cor rec tio nal Fa cil ity , A TTO RNE Y 21 

### GEN ERA L E LLI OT SPI TZE R, 22 2 3 Respondents-Appellees. 24 

### - - - - - - - - - - - - - - - - - - - - X 25 26 

### ORDER 2 7 Following disposition of this appeal on April 12, 2010, 2 8 petitioner-appellant Richard Rosario filed a petition for 2 9 rehearing and rehearing in banc. Upon consideration by the 3 0 panel that decided the appeal, the petition for rehearing is 31 DENIED . An active judge requested a poll on whether to 3 2 rehear the case in banc. A poll having been conducted and 3 3 there being no majority favoring in banc review, rehearing2 1 in banc is hereby DENIED 

### . 2 

### Jud ge Wes ley co ncu rs in an opi nio n j oin ed by Jud ges 3 

### Cab ran es, Ra ggi , H all , a nd Liv ing sto n; Jud ge Kat zma nn 4 

### con cur s i n a se par ate op ini on; Ch ief Ju dge Ja cob s d iss ent s 5 

### in an opi nio n j oin ed by Jud ges Po ole r, Lyn ch, an d C hin ; a nd 6 

### Jud ge Poo ler di sse nts in a sep ara te opi nio n. 7 FOR THE COURT: 8 CATHERINE O’HAGAN WOLFE, CLERK 9 10 111 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 other3 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 K

AT ZMANN , Circuit Judge , concurring i n the denial of rehearing in banc

. 2 Th e d iss enter s h av e id entif ied po ssi ble ch all en ge s p os ed byNe w Y ork ’s c on sti tut ion al 3 standard for ine ffective assist ance of counsel cla ims. As they note, the New York standard coul d 4 leave room for New York courts to find a lawyer effective by focusing on the “fairnes s of the 5 pro ces s as a who le, ” Pe op le v . B en eve nto , 9 1 N .Y .2 d 7 08 , 7 14 (19 98 ), r ath er than o n whe the r 6 “th ere is a

rea so na ble pro ba bil itythat . . . th e re su lt o f t he pro cee din g w ou ld h av e b een dif fe rent” 7 absent defense counse l’s mistakes, Strickland v. Washington , 466 U.S. 668, 694 (1984). Se e 8 He nr

y v. Po ole , 4 09 F. 3d

48 , 7 0-7 2 (2 d C ir. 20 05 ) (“ pa us [i ng ] t o q

ue sti on wh eth er the Ne w Y ork 9 standard i s not contra ry to Strickland ”). 10 As bo th C hie f Jud ge Jac ob s’ d iss ent an d Jud ge W esl ey ’s c on curre nc e o bs erv e, ho we ve r, 11 such difficulties can be avoided by se parate cons iderati on of counsel’s performance under the 12 federal standa rd when a federal chal lenge is pr esented in t he New York courts. For the r easons 13 set forth in the panel’s de cision, seeRo sa rio v. Erco le , 6 01 F. 3d 11 8, 12 7 (2 d C ir. 20 10 ), I am 14 satisfied that the tr ial courthere engaged i n such an inquiry, albeit “ not deliver ed in Strickland 15 ter

m ino log y, ” id. (quoting Ro sa rio v. Erco le , 582 F. Supp. 2d 541, 553 (S.D.N.Y. 2008)). 16 Accordingly, thi s case does notrequire us to review New York’s st andard. Thus, I concurin the 17 decision of the Courtto deny rehear ing in banc

.

### Sen ior Ci rcu it Jud ge Che ste r J . S tra ub, th e a uth or of 1 

### the pa nel ’s min ori ty opi nio n c onc urr ing in pa rt and dis sen tin g i n p art , w as not au tho riz ed to par tic ipa te in the in ban c p oll , b ut has en dor sedth e v iew s e xpr ess ed in thi s opi nio n. 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 the2 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 Florida4 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). 22At 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 Strickland7 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. , dissenti ng in the denia l of rehearing en banc :

I fully join Chief Judge Ja cobs’ disse nt from the denial of rehearing en banc . I writ e sep aratel y o nly

to f urt he r hi gh lig ht t

he inj us tic e th is c ourt’ s d en ial pe rm its . It is p rob ab ly c orr ect that ge ne ra llythe New York state i neffective assist ance standar d is more lenient towar ds de fe nd ants than th e f

ed era l st an dard. Ro sar io, ho we ve r, I am sure w ou ld d isa gre e. Th e st ate stand ard can act to d eny re lie f d esp ite aneg reg iou s er ror fr om co un sel so lon g a s co un sel provides an over all meaningful represent ation. This i s contrary to Strickland

. Se e S tri ckl an d v

. Washington , 4 66 U. S. 66 8 (1 98 4). Far f rom be inga th eo ret ica l pr ob lem as t he co nc urr en ce suggests, thi s seems to be exactly what happened in Rosario’ s case. All three mem bers of the Ro sa rio pane l ag ree d th at d ef en se c ouns els ’ pe rf

orm an ce w as p rob ab ly i ne ff ect ive un de r Strickland

even though it was notineffective under the state s tandard. Ro sa rio v. Erco le , 601 F. 3d 11 8, 12 6 (2 d C ir. 20 10 ); id . at 129 (Straub, J ., dis sentin g). At lea st w e al l can a gre e th at the Ne w Y ork state c ourts wo uld

be wi se t o e va luate co un sel s’ p erf

orm an ces sep aratel y und er the fe de ral an d th e st ate stand ard s. Do ingso wi ll l ike ly prevent future de fendants from being penalized by a lac una in a stat e standard t hat we have upheld because i t supposedly works t o their bene fit.