Rosario v. Ercole, No. 08-5521 (2d Cir. 2010)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on April 12, 2010.
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08-5521-pr Rosario v. Ercole 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT At a stated term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 10th day of August, two thousand ten. - - - - - - - - - - - - - - - - - - - -X RICHARD ROSARIO, Petitioner-Appellant, - v.- 08-5521-pr SUPT. ROBERT ERCOLE, Green Haven Correctional Facility, ATTORNEY GENERAL ELLIOT SPITZER, Respondents-Appellees. - - - - - - - - - - - - - - - - - - - -X ORDER Following disposition of this appeal on April 12, 2010, 28 petitioner-appellant Richard Rosario filed a petition for 29 rehearing and rehearing in banc. 30 panel that decided the appeal, the petition for rehearing is 31 DENIED. 32 rehear the case in banc. 33 there being no majority favoring in banc review, rehearing Upon consideration by the An active judge requested a poll on whether to A poll having been conducted and 1 2 in banc is hereby DENIED . 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 8 9 10 11 FOR THE COURT: CATHERINE O HAGAN WOLFE, CLERK 2 1 2 3 4 5 6 RICHARD C. WESLEY, Circuit Judge, with whom Judge JOSÃ A. CABRANES, Judge REENA RAGGI, Judge PETER W. HALL, and Judge DEBRA ANN LIVINGSTON join, concurring in the denial of rehearing en banc. 7 support the Court s decision not to rehear this case en 8 banc. 9 We stand by the panel s decision in this case and 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. 12 York Court of Appeals has expressed this sentiment in 13 decision after decision. 14 N.Y.3d 913, 915 (2006); People v. Turner, 5 N.Y.3d 476, 480 15 (2005) (collecting cases). 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. 21 measure is unnecessary as a matter of law and unwarranted as 22 a matter of comity. 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. The New See, e.g., People v. Ozuna, 7 Yet because the state standard I believe such a drastic As the court s opinion in this case 1 Thus, 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. 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. 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. 18 recount the full extent of the state court inquiry. 19 stated in the court s opinion: 20 21 22 23 24 25 He did The dissent focuses on but one passage The dissent fails to As The [state] court noted that the two alibi witnesses that were presented at trial "had the best reason for remembering why defendant was present in Florida on June 19[,] 1996 the birth of their son an event that was more relevant for them than the events relied upon by the other 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 witnesses." He expressed skepticism as to the probative value of the witnesses presented at the hearing, calling the evidence "in some cases questionable and in others [raising] issues which could have created questions for a deliberating jury. For example, two of the witnesses Lisette Rivero[] and Denise Hernandez could not say where the defendant was on June 19 and 20." The judge "studied closely" the alibi witnesses presented at the hearing, and concluded they were "for the most part, questionable and certainly not as persuasive as the two witnesses who did testify, and were rejected by the jury" and the testimony they would have provided was "largely" cumulative. In spite of the failure to call the alibi witnesses, Justice Davidowitz determined "this jury verdict was unimpeached and amply supported by the evidence." (internal quotation marks omitted and emphasis added). Rosario v. Ercole, 601 F.3d 118, 127 (2d Cir. 2010). 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. 26 841 (1st Dep t 2010). 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. 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. See, e.g., People v. McNeill, 899 N.Y.S.2d 840, Such an exercise would ensure that This vigilance will also alleviate the risk 3 1 2 KATZMANN , Circuit Judge, concurring in the denial of rehearing in banc. 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. -1- 1 2 3 4 5 DENNIS JACOBS, Chief Judge, joined by ROSEMARY S. POOLER, GERARD E. LYNCH, and DENNY CHIN, Circuit Judges, dissenting from the denial of rehearing in banc. 6 standard for ineffective assistance of counsel is more 7 lenient to defendants generally, lacking as it does a but 8 for prejudice requirement. 9 476, 480 (2005). I agree with the panel majority that the New York See People v. Turner, 5 N.Y.3d But it is nevertheless contrary to the 10 standard set forth in Strickland v. Washington, 466 U.S. 668 11 (1984). 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 I respectfully dissent from the order denying in 15 16 17 I 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. 1 [U]nder New York law the Senior Circuit Judge Chester J. Straub, the author of the panel s minority opinion concurring in part and dissenting in part, was not authorized to participate in the in banc poll, but has endorsed the views expressed in this opinion. 1 1 focus of the inquiry is ultimately whether the error 2 affected the fairness of the process as a whole. 3 v. Ercole, 601 F.3d 118, 124 (2d Cir. 2010) (quoting People 4 v. Benevento, 91 N.Y.2d 708, 714 (1998)). 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. 10 Rosario The test The New York standard is fairly unambiguous: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Turner, 5 N.Y.3d at 480-81 (emphases added). 30 York test averages out the lawyer s performance while 31 Strickland focuses on any serious error and its 32 consequences. Two of our decisions have rejected ineffective assistance claims despite significant mistakes by defense counsel (People v. Hobot, 84 N.Y.2d 1021 (1995); People v. Flores, 84 N.Y.2d 184 (1994)). Those cases hold, and we reaffirm today, that such errors as overlooking a useful piece of evidence (Hobot), or failing to take maximum advantage of a Rosario violation (Flores), do not in themselves render counsel constitutionally ineffective where his or her overall performance is adequate. But neither Hobot nor Flores involved the failure to raise a defense as clear-cut and completely dispositive as a statute of limitations. Such a failure, in the absence of a reasonable explanation for it, is hard to reconcile with a defendant s constitutional right to the effective assistance of counsel. 2 Thus the New 1 In the passage quoted above, the Turner court relies on 2 Flores. 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. 7 184, 187 (1994). 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 That is dubious precedent. In Flores, a case People v. Flores, 84 N.Y.2d Years later, this Court granted habeas 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 18 II The present case illustrates the constitutional defect 19 in the New York standard. 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 Rosario s pre-trial and trial 3 1 when the charged crime was committed in New York. 2 failure was not a misfire of strategy or tactics; it was 3 conceded error. 4 the Supreme Court of the State of New York acknowledged as 5 much, but then shifted the focus: This In denying Rosario s collateral challenge, 6 7 8 9 10 11 12 13 14 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. The best and most reasonable explanation, then, is that there was a misunderstanding or mistake which persisted through the case and which the parties simply cannot explain. But it was not deliberate. And that does not alter the fact that both attorneys represented defendant skillfully, and with integrity and in accordance with the standards of meaningful representation defined by our appellate courts. 19 20 21 22 III 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. 4 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. 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. 17 flaw, I tend to suspect perjury; second, corroboration 18 matters. 19 was seriously prejudiced by the absence of more alibi 20 witnesses. 21 dissenting). Moreover, First, if a witness is without As the panel dissent forcefully explains, Rosario Rosario, 601 F.3d at 131-37, 140-42 (Straub, J., 22 5 1 2 IV The full Court took an in banc poll in this case and 3 decided not to revisit the panel s ruling. 4 not be construed as an imprimatur. 2 5 But this should 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 15 Unneeded conflict can be avoided by separate consideration of counsel s performance under the Strickland At different times, this Court has been of different minds on the question. Some opinions have said (albeit in dicta or in following binding precedent) that the New York test is not contrary to Strickland. See Eze v. Senkowski, 321 F.3d 110, 124 (2d Cir. 2003); Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001). A later panel voiced doubt. See Henry v. Poole, 409 F.3d 48, 70-71 (2d Cir. 2005) (pausing to question whether the New York standard is not contrary to Strickland, but granting habeas relief on the unreasonable application ground). 2 6 1 standard in the New York courts when a federal challenge is 2 presented. 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. No doubt, there are other ways to the same end. 7 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.
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