*1 grants Boy- the attack and the unless during months between ninety days. a new trial within ette Boyette positive first identification her physical in 1982 and that October during torment she suffered
psychological to her need to period contributed note identify an attacker. The accelerant ability to doubt on Ehrlich’s also casts clearly perceive or remember events during her attack.8 These they happened in with the two documents combination NOBLE, Petitioner-Appellee, Casim arresting Boyette suggest long delay positive that Ehrlich did not make a identi- KELLY, Superintendent, long of her attacker until after Walter R. fication Respondent-Appellant. ab- Coupled complete attack. linking Boyette to of other evidence sence No. 00-2154. proof that he
the crime and the substantial Appeals, United States Court of state, was in a different the note and inter- Second Circuit. persuaded view sheet could well have very close jury acquit. Because Argued': Sept. 2000. Ehrlich’s depended solely case credibili- April Decided: ty, applied Kyles Appellate Division it objectively way unreasonable when analysis concluded—without —that
Boyette prejudiced. only was not Not reasonably the cumulative probable fire
impact of the accelerant note and the have in a report marshal’s resulted outcome, different see id. essentially but in the context of this n one-witness their non-disclosure seri-
ously undermines “confidence in the out-
come of the trial.” Id. at 1566. We there- fore reverse.
CONCLUSION discussed, we For the reasons we have judgment reverse the the district court to and remand to proffered expla- argument jury apparently accepted disagree 8. We with the State's merely this evidence is cumulative of other discrepancy, Calvin i.e. that nation for impeachment evidence. The other evi- Boyette underbite. The evidence in had an principally Ruiz’ concern- hand, here, question dence— ing concerns on the other description Ehrlich’s of her attacker— memory reliability and her of Ehrlich’s centered on Ehrlich’s initial statement ability to see her attackers. missing attacker was front teeth. The her *2 JACOBS, CARDAMONE, Before SACK, Judges. Circuit PER CURIAM: a writ of Noble’s ha- Casim *3 corpus challenges his conviction for beas attempted murder offenses on and related Amendment ground his Sixth rights Process were violated Compulsory state trial court ruled that alibi when the testimony would excluded because de- comply counsel failed fense procedural requiring rule advance notice of call alibi intent to witnesses. Alternative- argues his counsel’s non- ly, Noble compliance rendered his counsel’s services - constitutionally The ineffective. United District for the Southern Dis- States J.) (Sand, York granted trict of New No- corpus for a of habeas petition ble’s writ Respondent and directed either re- to retry Noble or him. See Noble v. lease (S.D.N.Y. F.Supp.2d Kelly, 89 2000). affirm the of the district judgment
court.
BACKGROUND
Familiarity with
case
facts
the details of
state criminal
Noble’s
forth
trial as set
445-50, is assumed. Noble was convicted
of New
in the
Court of
State
York,
attempted
for
mur-
County,
Sullivan
and various related offenses.
der
Noble’s
challenges the
for habeas relief
was in-
testimony
that Noble
exclusion
Weinstein,
Aid
Legal
L.
The
Soci-
Philip
victim was shot
a bar at
time the
side
Division, Appeals
ety, Federal Defender
in a car outside.
York, NY,
Bureau,
for Petitioner-
New
York Criminal
Law
New
Procedure
Appellee.
type.
special
as a
treats an alibi witness
govern-
Mitzner,
provides
250.20
District
Bonnie M.
Assistant
Section
defense, up
upon the
(Stephen
may serve
County, N.Y.
ment
Attorney, Sullivan
a demand
twenty days
arraignment,
after
and Karen
Lungen,
Attorney,
F.
District
identify any witness who
Mannino,
Attorney, on
the defense
District
Assistant
testify
“at the time
brief),
intends to
Respondent-Appellant.
the crime
trial
charged
judge
[the
commission of
de-
asked defense counsel to
place
was at some
other
places
fendant]
or
why
explain
Yamagata was not an alibi
than
the scene
the crime.” N.Y.Crim.
witness whose
should have been
Proc. L.
250.20. The
has eight
defense
pursuant
noticed
advance
250.20.
days to respond,
continuing
is under a
responded
Defense counsel
duty to
in-
respond
circumstances and
not an
because
witness
the scene
change throughout
pro-
tentions
specified
crime
in the indictment
cess, and
risks
sanction of exclusion for
vicinity
was the
of the Around the Corner
comply:
failure to
“If at the trial the de- Bar,
Yamagata’s testimony'
and that
—'that
fendant
calls such
alibi witness without
place
Noble was in the bar —would
him at
having
...
served
demanded notice
the scene rather than furnish the alibi that
*4
testimony
court may
exclude
of such
taking
he was elsewhere. After
the mat-
relating
witness
to the alibi defense.” Id.
advisement,
ter under
court adopted
the
The court
accept
retains discretion to
the
that,
competing
light
view
in
does,
testimony,
grant
if it
but
it
must
prosecution’s pre-trial discovery responses,
government
time to prepare a rebuttal.
the scene of the
purpose
crime for the
(“The
§
See
Proc. L.
N.Y.Crim.
250.20
analysis,
alibi
“in
was
front
the [Around
court
in its
may
discretion receive such
B]ar.”
Corner
As a sanction for de-
testimony,
so, must,
it
doing
but before
give
fense counsel’s failure to
notice under
upon application
of the people,
250.20,
the court
Yamagata’s
excluded
adjournment
in
days.”).
not
excess of three
testimony.
prosecution appropriately
The
served an
request
counsel,
alibi
upon
witness
Noble’s
jury
convicted
of attempted
Noble
responded
which counsel
that no alibi
in
degree,
murder
the second
two counts
anticipated.
witnesses were
At trial and in of criminal use
in
of a firearm
the first
proceedings,
prosecution
habeas
degree, and
possession
criminal
weap-
of a
and
disputed
Noble have
whether Steven
on in
degree.
the second
He was sen-
Yamagata
have
should
been
identified
chiefly
12-}é
tenced
two terms
to 25
an alibi
in response
prosecu-
witness
to the
years of imprisonment and one term of 7/6
tion’s
According
250.20 demand.
to the
years
to 15
of imprisonment, all to run
prosecution’s
trial,
evidence at
victim
concurrently.
appeal,
On
Ap-
Noble’s
was
sitting
parked
car
outside the
pellate Division of
the New York
Bar,”
“Around the Corner
and was shot at
Court did not
preclu-
decide whether the
range
close
one of three assailants.
sion of the
was constitu-
The victim and other witnesses identified
error,
tional
because it held that
if
even
Noble
gunman.
as the
Following
testi-
were, any error
thereby
introduced
was
witness,
mony of the first defense
a collo-
Noble,
harmless. See People v.
209 A.D.2d
quy ensued in which
prosecution
chal-
735, 736,
(3d
N.Y.S.2d
Dep’t
lenged
Yamagata
counsel’s intention to call
1994). The
rejected
court
Noble’s claim
witness,
as a
and the court
what
asked
that his counsel was ineffective on the
Yamagata
say.
Noble’s counsel re-
ground that
only
Noble
alleged a “simple
sponded
“was inside the
disagreement with
strategies
shots,
bar when
and tac-
he heard the
he
and was
tics,”
playing
and was
not
pool
there,
or some
therefore
game
other
sufficient to
and
overturn the
Casim
was
Id.
playing
ap-
[Noble]
[a] video
convictions.
Noble’s
game,
both
they
togeth-
plication
and
exited
for
the bar
leave to appeal to the New
er.”
York
of Appeals
summarily
de-
Noble,
system
mail
and lack of
prison
counsel
People v.
84 N.Y.2d
nied. See
timely filing with the court. See
to assure
623 N.Y.S.2d
647 N.E.2d
274,108
S.Ct. 2379.
id. at
a writ of habeas
petitioned for
Noble
granted
court
in 1997. The district
corpus
concluded,
correctly
theAs
district court
the trial
ground
writ on the
equal
rationale
force to
applies
Yamagata’s testimony
preclusion
court’s
Noble,
circumstances.
See
Noble’s
process rights
compulsory
violated Noble’s
F.Supp.2d at 450-53. Noble’s
for
Amendment. See
under the Sixth
jail
made
corpus
of habeas
from
writ
Alternatively, the
454-61.
at
of counsel. As the
without
the benefit
failure to
court held that defense counsel’s
noted,
mailbox
prison
an alibi
procedures
calling
for
follow the
variety
rule has been extended to
constitutionally
inef-
witness amounted
circumstances, including administrative fil-
counsel. See id.
461-63.
fective
Doe,
ings,
Tapia-Ortiz
see
do
ground
the first
therefore
affirm on
Cir.1999)
(2d
curiam),
(per
service of
not reach
second.
discovery responses,
Upjohn
see Faile v.
(9th
Co.,
Cir.1993),
mo-
DISCUSSION
tions
reconsideration
under Fed.
*5
Evans,
59,
v.
see
853 F.2d
R.Civ.P.
Smith
I. Timeliness
(3d Cir.1988),
155, 161
and motions for a
I
Title
of
Antiterrorism
33,
under
see
new trial
Fed.R.Crim.P.
of 1996
Penalty
Effective Death
Act
States,
701,
No. 89 Cr.
Marinez v. United
(“AEDPA”),
101,
§
L.
Pub.
No.
(S.D.N.Y.
51201,
Feb.8,
*2
1996 WL
at
(codified
1214,
28
1217
at U.S.C.
110 Stat.
1996).
of
circuits
A number
other
have
2244),
filing
for
imposes
§
a time limit
petitions
pro
extended the rule to
se
for
petitions.
28 U.S.C.
habeas
See
Prunty,
See Miles v.
187
habeas relief.
2244(d)(1).
AEDPA was enacted
(9th Cir.1999);
1104,
n. 2
1106-07 &
F.3d
1996;
24,
prisoners whose convic
April
Bowersox,
1068,
172 F.3d
1077
Nichols v.
had one
tions became final before
date
(8th Cir.1999) (en banc); Jones v. Ber-
24,
file.
April
1997—to
See
year - until
(7th
trand,
499,
Cir.1999);
171 F.3d
502
(2d
97,
Artuz,
103
Ross v.
150 F.3d
Cir.
Boone,
1223,
n.
v.
150 F.3d
1226
3
Hoggro
1998).
final
Noble’s conviction became
(10th Cir.1998);
Cain, 149
Spotville v.
30, 1995,
appeal
January
when leave to
to
Morton,
(5th Cir.1998);
374,
v.
Burns
378
Appeals was
York Court of
de
New
(3d Cir.1998);
109,
In re
134 F.3d
113
peti
court
his
nied. The district
received
(6th Cir.1997)
Sims,
45,
(per
111 F.3d
47
1997,
deadline;
22,
July
after the
tion on
curiam). Moreover,
has
this Court
ob-
contends that before
time
but Noble
prisoner
proceed-
is
“[w]hen
served
petition
in the
expired
placed
he had
generally
...
pro se
federal courts
ing
mailing.
authorities for
prison
hands of the
or her
for habeas
consider his
of
date it
have
filed as
corpus
held Hous
to
been
2379,
Lack,
prison
forwarding
officials for
given
v.
to
ton
487 U.S.
Stinson,
(1988),
v.
prisoner
clerk.” Adeline
The Compulso Sixth Amendment’s decision, ry Clause, the district court’s applicable Process to As state we review a decision to habeas relief criminal proceedings through the Due Pro Batista, de novo. See Smalls v. cess of Clause the Fourteenth Amend (2d Cir.1999). 272, 277 ment, Texas, Washington see 388 U.S. decision, 1. predates The court's which attempted could have committed the murder Washington, applies both Williams and the under these circumstances: the witnesses tes- 2254, “contrary portion holding to” of that tified that Noble shot the victim from close inquire the trial court’s failure to into range, standing just outside the victim's car. whether defense counsel's behavior was will- testimony arguably places Yamagata This application ful amounted to “wrong the the within the definition anof alibi witness. See standard.” 89 at 461. (7th 1999) (de- Dictionary Black's Law 72 ed. fining "alibi” as defense based on the "[a] permitted, Yamagata 2. If would have testified physical impossibility guilt by of a defendant’s bar, perpetrator that the was inside the play- placing a the defendant in than location other ing game shooting a video when the occurred. time.”). the scene crime at the relevant Nothing in the record indicates that Noble
99
1920,
trial.
If
14,
witnesses in advance of
that
L.Ed.2d
87 S.Ct.
the
(1967),
explanation reveals that
omission
“the
shall
provides that
accused
by a
and motivated
desire to
have
enjoy
compulsory
...
right
willful
advantage
obtain a
tactical
would
witnesses in
fa
obtaining
his
process for
”
minimize
the effectiveness
cross-ex-
Tay
....
amend. VI.
In
vor
Const.
U.S.
ability
amination
to adduce re-
400,
646,
and
Illinois,
lor v.
484 U.S.
S.Ct.
evidence,
entirely
buttal
it would be
(1988),
Supreme
Court
98 L.Ed.2d
purposes
consistent with the
excluding
testimony
upheld an order
Compúlsory
simply
Process Clause
as a sanction for coun
defense witness
testimony.
exclude the witness’
(i)
noncomplianee
discovery
sel’s
notice of intention to
required
rule
415,
(emphasis
Id. at
A on an excuse judge trial insist conduct and it mensurate with “willful” explanation party’s for a failure to com- identify readily not clear whether Escalera’s ply request to his or her with a was, fact, attorney the that by agree motivated a We with district court ruling satisfy a tactical not advantage. desire to obtain does the constitu- tional standard. (2d Coombe, Escalera v. Cir.1988) curiam) (per (quoting Escalera v. Remedy C. (E.D.N.Y. Coombe, F.Supp. that Having concluded the consti 1987)) (citations omitted). satisfied, tutional was not the standard agree district court the court conducted its own review case, under the circumstances the granted the state trial and writ record the state trial court could have used less oner- finding on the basis of its that the defense (such adjournment) ous an sanctions to attorney’s provide timely failure notice prosecution, minimize to the prejudice Noble, of alibi was in fact willful. not See and that a finding of willfulness was there- F.Supp.2d at 457. The argues required fore justify the exclusion of however, that, appeal, the first time on if Yamagata’s testimony. See else, nothing the district court should (discussing at 457 prosecu- the required evidentiary hearing to hold an familiarity tion’s with the locale of the alibi expand the and record consider additional and ability impeachment its to obtain evi- question evidence on the of willfulness. against dence Yamagata).3 The state trial particular thinkWe that the circumstances court, however, no finding made of willful- justify of this case of the writ argument,
ness. hearing After the trial hearing. without such a court ruled: finding The district court’s de- preclude
This Court will
[Yamagata
attorney’s
provide
fense
failure to
a notice
giving testimony with respect
from]
of alibi was a result of “his misinterpreta-
the alibi. The record indicates that no
governing
tion of the
and
discovery rules”
notice
served
defense that
cannot
strategic
“be attributed
to a
they
an
produce
intended to
alibi wit-
choice,” Noble,
F.Supp.2d.
has
ness.
People
The first
were
strong support in the
pro-
record of the
advised of
intention
their
to call this
ceedings
First,
court.
witness
was after
close of the Peo-
colloquy
between
trial court
ple’s
yesterday.
case
The record fur-
attorney
defense
indicates that the attor-
ther indicates ...
scene of this
ney thought
not
crime was in front of the Around the
alibi witness because the indictment identi-
Corner
being
Bar.
This
fied the scene of the crime as in the “vicin-
testimony of
ity”
this witness
the defen-
Bar,
Around
Corner
which
dant was inside the bar at the
attorney thought
time of
included the area
*8
the shooting
clearly
is
testimony].
[alibi
inside
That colloquy
the bar.
re-
also
The Court is
that
attorney
not satisfied
there is vealed that
thought
the
the
that
an acceptable
for not making
reason
bar’s
proximity
close
to the shooting meant
application sooner.
Yamagata’s
that the
testimony was not an
whether,
case,
present
3. We therefore need not decide
only
we need
conclude that
extent,
finding
to what
prejudice
a
of
prosecution
willfulness is
where
the
can
required
ease,
every
in
case. See United States v.
minimized with
a
relative
trial court's
Portela,
687,
(1st Cir.),
705 & n.
sup-
16
exclusion of alibi
must be
cert.
Villaman-Rodriguez
ported
denied sub
by finding
degree
nom.
some
of willful-
States,
917,
273,
United
ap-
ness in defense counsel's violation of the
purposes
plicable
For
discovery
of the
rules.
the
court’s decision in that case
lawyer
the
to re-
If the failure of
alibi.
in
request
preceded
was thus
the
Court’s decision
alibi witness
spond to the
mistake,
Taylor
not
on
ambiguous
it was
course
and was therefore
simply a
Escalera,
question
the
of willfulness. See
willful.
case,
contrast,
In
by
we conclude
“[n]o
jury’s verdict.”
States,
wn
v. United
Bro
sup
458. Our own review the record
(2d Cir.1999).
109, 110
conclusion, for
court’s
ports the district
substantially
the same reasons
also note that the remand
Escal-
district court has articulated.5
particularly appropriate
era was
because
be-
apply
determination
we
the state trial
to our harmlessness
Because
conclude
on the
"adjudicated
cause harmlessness
error in ex-
court committed constitutional
Appellate
It is well-
Division.
Yamagata's testimony,
merits”
cluding
we decline to
review,
appellate
settled
direct
a state
petitioner’s
that on
address the
alternative claim
*9
may
error harmless
court
find constitutional
constitutionally ineffective
he received
assis-
beyond
only if
harmless
a reasonable
it is
tance of counsel.
Chapman California,
U.S.
doubt.
v.
386
See
824,
18, 24,
CONCLUSION
Maj. Op. at 100-101.
ness.”
reasons,
foregoing
For the
affirm the
we
I read
differently.
the record
Noble’s
judgment of the district court. The man-
an experienced
counsel was
criminal de-
date shall
forthwith.
issue
lawyer
presumed
fense
and can be
to un-
who is an
witness.
derstand
At the
JACOBS,
Judge, dissenting:
Circuit
time,
good
same
counsel had
reason to
point,
As to all but one
I concur
that Yamagata’s testimony
believe
was of a
majority
I
opinion.
agree
Thus
that No-
only
kind
would be effective
if the
(Part I),
ble’s
timely
habeas
government was
and
surprised
lacked an
necessary
it
is not
to determine
to
it.
opportunity
prepare for
And Noble’s
(Part II.A), that,
whether AEDPA applies
engineer
counsel had the
to
means
Illinois,
400,
Taylor
under
v.
484 U.S.
108
Noble’s
surprise:
counsel
also counsel
646,
(1988),
S.Ct.
L.Ed.2d
Yamagata,
98
798
Yamagata
to
and
and Noble
court
failing
erred in
to
whether
prison days.
determine
friends from
were
One could
defense
non-compliance
counsel’s
Yamagata’s
find
counsel withheld
(Part
II.B),
250.20 was willful
and that
until
name
such time as
could
(Part II.D).
this failure was not
longer
harmless
no
govern-
interviewed
(as Yamagata’s lawyer,
ment
Noble’s coun-
I respectfully dissent from Part
II.C
that),
fully
sel could see to
or
investigated.
only.
(“Remedy”)
Rather than affirm the
In
I think that the circumstances
writ,
grant of
I
remand
sufficiently
are
ambiguous
justify
fact-
a hearing
court for
to determine
Coombe,
See
finding.
Escalera v.
852 F.2d
whether defense counsel’s conduct was
(2d Cir.1988)
45,
(remanding
48-49
habeas
willful,
was,
if it
because
the exclusion of
petition involving exclusion of alibi witness
the testimony was not constitutional error.
testimony, holding
“in
the absence of
opinion
The majority
“strong sup-
sees
other error requiring
proceed-
state court
port in
ascribing
the record” for
ings,
counsel’s
it
appropriate
[is]
the district
non-compliance
§with
250.20 to “his mis-
hold its
evidentiary
own
hear-
interpretation
Illinois,
the governing discovery
ing.”).
Taylor
400,
v.
484 U.S.
Cf.
rules,”
posits
17,
646,
and further
that “the state’s
412
108
n.
S.Ct.
Johnson, review, Cir.), (6th ble express standards we decline to cert. - denied, -, U.S. apply. view to which standard should *10 v. (quoting Williams be fabricated” can
Florida, (1970))). mandated, new trial we Before a fact has in been assure there should A remand for fact- error. constitutional unnecessary involve- finding may avoid judiciary crimi- in state ment the federal proceedings. nal RELATIONS LABOR NATIONAL BOARD, Petitioner, CO., T TERMINAL PACKAGING G & INC., Sprout, Inc., Chain Truck- Mr. Inc., Tray Wrap, Inc., ing, and Slow Pack, Inc., Respondents.
No. 00-4095. Appeals, United States Court Second Circuit. Argued Dec. 2000. March Decided