*1 rejected, Zheng’s application. Zheng merits Because made no effort to demon- Zheng represented by was also counsel at strate that the affidavits and additional hearing in documentary before the IJ and her mo- evidence she submitted in reopen, tion to allege support she does not of her reopen motion to met these performance her counsel’s requirements, was deficient at BIA obligated was not stages either of those of the proceedings. to consider them. circumstances,
Under these reconsidera- CONCLUSION Zheng’s tion of the merits of claim of ineffective assistance of counsel is not war- Accordingly, we hold that BIA did ranted.2 not abuse its in rejecting peti- discretion tioner’s ineffective assistance of counsel Finally, respect Zheng’s with conten- claim on ground petitioner failed tion that the BIA abused its discretion comply with requirements set forth (1) (2) refusing to consider her brief and Lozada, see note 1 ante. petition corroborating affidavits she submitted for review is therefore denied. support reopen, her motion to BIA’s decision does not suggest that the
appellate considered,3 was not but brief
only that the BIA Zheng’s found motion
insufficient insofar as it did not comply
with Lozada’s requirements. In its deci- motion, denying moreover,
sion Zheng’s Dwayne HENRY, Petitioner-Appellant, correctly the BIA stated that a motion to reopen “is not to be used as ... a second POOLE, Superintendent Thomas Five proving effort at factual allegations.” And Facility Points Correctional and Eliot true, notes, it petitioner while is as that an Spitzer, Attorney L. General of New alien is invited “to submit previously un- York, Respondents-Appellees. available evidence in support of one’s Docket No. 03-2884. claim” in a reopen, motion to regula- unequivocally provide tions that such evi- United Appeals, States Court of (1) dence will be considered if it is Second Circuit. (2) material, available, was not previously Argued: Feb. 2005. (3) could not have been discovered or May Decided: 2005. presented at hearing. the initial See John- (2d Ashcroft, son v. 378 F.3d
Cir.2004) 1003.2(c)(1)). (citing § 8 C.F.R. underscoring 'reasonable, 2. It bears finding that the BIA supported by stated in it if sub Zheng its stantial, decision that would not have been probative' evidence in the record entitled to relief even if she had demonstrated whole.”) when (quoting considered as a Dial that she suffered ineffective assistance of INS, (2d Cir.2000)). lo v. 232 F.3d Zheng counsel because "successfully had not challenged credibility adverse [IJ's] deter- above, ante, 3. As we observed see note mination.” Were we to reach the merits of that, complying BIA stated in addition to not claim, Zheng's ineffective assistance the BIA's Lozada, motion, Zheng's with which included specific finding affirmation of this factual brief, appeal independently deficient certainly the IJ would where, be entitled to deference Zheng "successfully because had not chal- here, supported by it is substantial lenged credibility the [IJ's] adverse determi- evidence in the record considered as a whole. nation.” INS, See Wu Biao Chen v. 344 F.3d (2d Cir.2003) ("[W]e will not disturb a factual *4 Smith, York, Reed New New York unless the State him affords a new trial (Lawrence Hausman, T. Legal The days. Aid within 90 Bureau, Society, Appeals Criminal New
York, York, brief), New on the for Peti- I. BACKGROUND tioner-Appellant. present case arises out of the armed Aldea, Donna Assistant Attor- District robbery Mitchell, livery of Richard cab (Richard ney, Gardens, Kew New York A Jamaica, driver in Queens, in early- Brown, District Attorney Queens morning hours of Thursday, August Castellano, County, John M. Assistant Dis- 1995. The connecting evidence Hen- Attorney, Gardens, trict York, Kew New ry to the crime was his identification brief), on the for Respondents-Appellees. Mitchell. OAKES, KEARSE, SACK, Before: trial, As testified to at Mitchell com- Judges. Circuit that, plained police at 12:10 a.m. on August five men robbed at gun- him *5 concurs, Judge SACK in separate a point, stealing and his cab. $180 Two of opinion. the robbers had been passengers in the cab, (the one of whom sat in front other KEARSE, Circuit Judge. approached three robbers the when it cab Dwayne Petitioner Henry, New York a destination). requested arrived at the At (“State”) State prisoner of convicted rob- trial, Mitchell described the front-seat pas- bery, appeals judgment from a of the Unit- senger as a man, dark-skinned black 20-22 ed States District Court for the Eastern old, years tall, 5'9" pounds, 160-165 with a York, Weinstein, District of New Jack B. tooth, gold wearing and a striped shirt. Judge, denying petition his a for writ of corpus habeas pursuant to 28 U.S.C. Some three weeks after robbery the of § alleging that he Mitchell, received ineffective Henry, a teenager, black was ar- assistance of counsel when his trial attor- rested in an unrelated case and placed was ney elicited emphasized and an alibi that in lineup a that was by viewed Mitchell. clearly given was for the day. wrong The Mitchell Henry selected as the who robber court district denied petition on the had been the front-seat passenger, and ground that rejection the state court’s of Henry charged was with one count each of Henry’s ineffective-assistance-of-counsel first-degree and second-degree robbery. claim contrary was neither to nor an un- application
reasonable of clearly estab- Henry’s A. at Trial Defense law, lished federal as by determined Henry’s position trial, Court, United States Supreme by as stated see 28 his 2254(d)(1). attorney § U.S.C. Patrick Henry On Watts his appeal, opening that statement rejection jury, contends the state to the court’s of was that Mitchell his claim was constituted an mistaken in ap- unreasonable his identification of Hen- plication ry. of Washington, Strickland v. told Watts that he call U.S. Person, 80 L.Ed.2d Henry’s witness Lakesha girl- (1984) (“Strickland”). friend, For give the reasons who would Henry an alibi for follow, agree and judg- reverse time the robbery, of and that the case ment; we instruct that a judgment new be would turn on jury’s assessments of entered, ordering that Henry credibility be released of Mitchell and Person. other any of the Henry taller was thor- Mitchell cross-examined Watts lineup was arguing participants, identi- that his to show in an effort oughly that he mistaken, Primerano testified bringing suggestive. Henry was fication connection follow-up investigation initial Mitchell’s did no between discrepancies out He “drew robbery robber Mitchell. front-seat with the description Attor- Queens appearance. the case with the District up actual Henry’s and police it.” complaint office,” re- and was about police ney’s “[t]hat introduced Watts (Tr. 274.) description initial reflecting the port after just 20 minutes given
Mitchell Mitchell’s challenged Although Watts ap- it Although robbery occurred. many respects, Henry in identification of after Mitchell, days two some pears as to the date question no there was description police robbery, gave was robbery of which time of the cbsely more robber of the front-seat 12:10 a.m. Mitchell August 10 at accused— trial, gave he description matched testified; report police complaint so Mitchell immedi- given by description indicated; and the Henry so introduced front- that the robbery was ately after the served on particulars, State’s bill tall, old, 5'5" years seat robber discovery re- pretrial to his response hair he had short pounds; weighed Nonetheless, when quest, so stated. or tank T-shirt wearing a white witness, instead as a called Person Watts top. early morning her about asking Police cross-examined thereafter asked Thursday, August Watts he hours Primerano, who arrested night” Peter “th[e] Detective about events her *6 August matter on Henry on an unrelated August 10: robbery of after three weeks 1995, was the 10th Q.On August Henry’s had taken Primerano Mitchell. boyfriend? [Henry] your Henry years was 18 information: pedigree A. Yes. tall, pounds. weighed old, 5'9" Mr; Henry living Q. And where was arrested, that, when dispute is no There time? at that tooth; photo- and the gold no Henry had me .... A. With that time of him at showed taken graph Further, of hair. a full head with him report, complaint Person, your police Now, directing to the
according Q. Miss 10th, initially police August told ... to Mitchell attention words, wearing just a T-shirt your robber was own jurors front-seat tell the however, large Henry had a Henry, top; you Mr. tank them where tell argued chest that Watts approximately on his and at that date tattoo were on top, a tank night. above have been visible twelve o’clockthat around of a no mention had made Mitchell usual- Well, off as day started A. tattoo. early then morning, and in the ly, get up morning to afternoon afternoon, like Henry, Primerano
Before the arrest my with time, park went we rob- to Mitchell assigned not been daugh- my little him and me daughter, Henry, arresting Primer- After bery case. for awhile there stayed And we in a ter. to view called Mitchell ano like dark getting it started until like Henry as identified and Mitchell lineup, time, because evening toward Watts introduced front-seat robber. and it was just going down sun was lineup to show photograph turning like mid-evening Q. time. Then you’re we And then testifying that went home. night you slept with the defendant your and he never left sight, right? stayed
We home for a little while. We were outside for a little while. Then A. Yes. movies, we were supposed go to the Q. So that Thursday would be going mother, but we wasn’t go. My able to Friday, into right? she my didn’t want to daughter watch A. Yes. me, I babysitter, so didn’t have no so Q. Okay. was, you And that testified just stayed in the night house that grand jury well, you as spoke Q. Dwayne Did your sight ever leave Watts, about with Mr. right? night? A. Yes. No, A. he did not. stayed We in. Q. And you when in the testified (Trial (“Tr.”) Transcript (emphases 283-84 grand jury, you also were speaking
added).) about Thursday night Friday into Q.... [W]hy you do remember Au- you defendant, were with the right? gust the 10th? A. Um-hm. A. Because that was the opening Q. Okay.... you Were certain date of the movie [“Virtuosity”] that we you date when went into the grand supposed were go just I see and jury? calculated back to what we did and ev-
erything, and Yes, that’s how I came to that A. I was certain. was, conclusion that we we went to the (Tr. added).) (emphases 287-88 park supposed and we were go Q. you’re And certain that Virtuosity day. movies that came out that date. your That’s testi- (Id. 286.) Person also testified that mony; right? prominent had a tattoo on his chest A. Yeah. and that in years the four she had known *7 him, she had never seen him gold with a Q. And (see question, Person, last Miss 285-86),
tooth Tr. even one that was Thursday 10th, night, (see August you 305-07). were jewelry removable Tr. with you the defendant slept and in The Assistant District Attorney place same defendant, with the never (“ADA”), cross-examining Person, sight lost of the defendant until the next sought received—confirmation that —and morning; right? Person giving only an alibi for A. Yes. night afternoon and August 10 rath- er than early for the morning hours: (Tr. 305, added).) (emphases Q. You’re testifying you that were Watts had given been a copy of Person’s
with the defendant Thursday, on August grand jury testimony, in which the alibi 10th, your that’s testimony; right? period to which she testified was Thursday A. Yes. night into Friday morning, prior to making Q. you’re And testifying that Thurs- opening his statement at trial. On redi- day, 10th, August morning that or that examination, rect Watts had Person con- day you went to park with the de- firm that she had told grand jury that fendant, right? Henry was August with her on 10 and had
A. Yes. her reiterate that he was with her on that lie, and he no motive to having scribed to ask no effort made date; again and he of her find on the basis jury to urged the in the her Henry was with whether Person failed to the State had testimony that (See Tr. of that date. morning hours early 322-23, 325-27, 330- Tr. its case prove {see recross-examination, 308-11.) On alia, 339-40), 32, 334, saying, inter Person, testifying that elicited again ADA [ljook say- Person is L[a]kesha at what had given the grand.jury, before it, gentle- ladies Think about and ing. which to period time same for the “alibi” do, you will you, you to if i.e., I submit trial, men. for referring she possible, and only conclusion hours, come to the Au- early-morning not the night, failed to People that have that 10: gust beyond a reason- guilt my prove client’s -the defen- you testified Q. And doubt. able similarly to what witness an alibi dant as 334.) (Tr. now; right? doing you are the rob- acknowledged that But Watts A. Yes. midnight, on just after bery had occurred similarly to it a fact isn’t Q. And (Tr. Thursday” into “Wednesday going Jury in the Grand you testified now 326), Person had testified and that during the were with you defendant until Fri- “Thursday ... respect to with Friday, right? Thursday into day didn’t {id.); argued “[s]he he and day” A. Yes. the date about” any make mistake going were you show that Q. So 339). (Tr. she testified which Friday you into taken have to see would She from Lakesha Person. heard [ Y]ou morning? does she lie. What motive have didn’t A. Yes. say you, up here to come have added).) (Tr. (emphases yes, he “waswith gentlemen, ladies said summation, She began did she tell us? Watts And what me. In the defense at the reminding the me. We were that he was with of the case discussion his jury statement movies.... opening of his to be- to determine whether reason certainly would have had a .... [SJhe testimony of Mitch- 10th, lieve identification 1995.... August remember testimony {See of Person. ell or Au- said say? She she And what did. 315-16.) his then Watts summarized Tr. I Thursday. 10th, it was gust Mitchell, principally cross-examination district the assistant know what don’t ability to opportunity Mitchell’s as to you knoiu you, but tell attorney would *8 memory of the robbers, his observe the yes, said She Lakesha said. what Miss including appearance, front-seat robber’s with him stayed I Thursday and it was failure to tooth, and Mitchell’s gold Friday morn- he Friday, and until left 319-24, {See, Tr. e.g., a tattoo. mention ing .... 329-30.) jury of reminded Watts at twelve Now, crime occurred this given had initial Mitchell description .the 10th, August o’clock, o’clock twelve robbery, a after the minutes just 20 police 10th, o’clock, August 1995. Twelve in, match not that did description that’s Now it occurred. 1995 is when hair alia, weight, age, height, inter going into Wednesday Thursday, going, 335-36.) 328-29, (See, Tr. e.g., length. And is. what it Thursday. That’s attor- assistant district that’s what emphasized repeatedly Watts also alibiing Well, she’s you. may say ney Person, de- he whom testimony of alibi him day, for the following Thursday go- And that’s what it comes down to. ing Friday. Question belief, into That’s what she’s gentlemen. alibi- ladies and ing him for. Wednesday Not for going (Tr. 325-26, added).) (emphases 339^40 Thursday. into The State in summation of course did argue not Person miscalculated or
Well, us, she told ladies gentle- was mistaken as to the date on which she men, she sat here and told us at twelve and Henry together, were since her testi- night o’clock that where she going was mony not did refer to the time of the August on the 10th 1995. Where was robbery. arguing addition to that the she then? She inwas her home. She testimony credible, of Mitchell was was with Mr. Henry. They going were ADA argued that had an Person obvious movies, and she even mentioned interest in the exoneration of boy- her the movie. simply friend but had given Henry an alibi wrong day: .... facts, Look at the look at Now, defense, course, calls an testimony of parties. both Look at all alibi witness. everybody up And evidence, I because know the assis- edge their seat. big This is a tant attorney district may well, claim thing. This is says where he he was. said, what Well, Miss Person she said very it was interestingly, report this August the 10th and it was a Thursday which the put into evidence defense Friday, to a knows, gives and that’s how she important us some very informa- and because it Thursday tion. Friday then, therefore, she was mistaken with It says this occurred crime Wed- from
regard to the date and time that these nesday to Thursday, and that is when I individuals went to movies. directed Mr. Mitchell’s attention to. He said he started work Wednesday at six gentlemen, Ladies and you she told o’clock and this crime occurred in the what going you on. She told what early evening, Thursday morning. This was happening on the time in which she unequivocal. witness was I wasn’t went they to what were doing. She told trying to trick her. I asked specifi- her you about park. you She told about cally, you testifying are you were daughter. her you told She about where with this defendant from Thursday went, they they where were. Friday morning. gentlemen, Ladies and She didn’t any make mistake about it. now, who cares? Is they are she now She knew on day, because like she going well, say they were with each said, they calculated back go- what was after, other night so that now counts ing on. And is that something wrong for Wednesday night into Thursday? with doing that? Something wrong with That’s irrelevant. It means nothing. calculating back to what happened at (Tr. added).) (emphases 349-50 The ADA particular time? He may you tell reiterated charged “is not *9 with hey, well she calculated wrong. And committing a Thursday crime Friday. into then she’s coming in telling you and one He is accused with committing a crime thing. Wednesday night into Thursday morning,” you She told what grand she told the and that Person in “came and testified jurors. He was with her. (Tr. He was (em- there about wrong day.” the 350-51 at that time. added).) That’s what she told phasis us.
57 an alibi present to proceeded that Watts and Per- Henry that argued The ADA and period, time wrong the for they were defense story that concocted had son that defense press to they continued story that that he because home alone flaw clear after its been even to the might have elsewhere together were Henry, 266 any in exposed. People ly but that disproof, to vulnerable (2d Dep’t “the 129 for 699 N.Y.S.2d the alibi A.D.2d event, concocted they rev’d, 1999) I”), 95 N.Y.2d (“Henry wrong night”: (2000), 112 744 N.E.2d 721 N.Y.S.2d alibi say, easy to very It is for con reversed the Division Appellate were say we here and come in to witness compe victions, notwithstanding counsel’s that alone just were We alone. proceed of the aspects in nobody other is tence there then Became night.... Henry given be him and that ings, ordered she corroborates So to corroborate. Nobody else trial. new her. corroborates and he movies, to went they them. the wit-
saw to questions Defense counsel’s If possibly, stubs ticket be there would August of night on ness focused who saw people be other concerning there testimony resulting ivere say easy very It is them. 24 almost whereabouts the defendant’s stayed something, we to do supposed commit- had been the crime hours after with they went why That’s home. testimo- as the witness’ ted. Inasmuch it was gentlemen, ladies and alibi, And story. coun- heart of the to the ny went anyway. night wrong defense, .... undermined sel’s error for provided added).) representation ADA [and] The (Tr. (emphases any mean- Person, or effective had not Mitchell, adequate unlike argued of the words. ingful sense of case the outcome no interest of recognition his to lie about no motive 565, 699 I, N.Y.S.2d A.D.2d at Henry stated, Henry, omitted). (internal marks quotation just re- up finish going I am permis received sought and The State present- defendant you that the minding New to the that decision appeal sion obviously interested. who is a witness ed (“NY Ap of Court Appeals of Court York date. wrong gave She of the decision reversed which peals”), added).) (Tr. (emphasis Henry, People v. See Appellate Division. 577, N.Y.S.2d of first- and N.Y.2d jury convicted The II”). (2000) The (“Henry sen- N.E.2d robbery. court second-degree estab applying its Appeals, of of terms prison N.Y. to concurrent tenced him of ineffective for claims lished standard years. and 6-12 10-20 stan “flexible” counsel—a assistance Proceed- Posttrial B. The State-Court court the state which under dard ings received the defendant consider whether based representation” “meaningful attorneys, by new Represented case, the circumstances Division, “totality” argu- Appellate appealed shown has the defendant whether inef- alia, he received ing, inter on the fairness [based] “prejudice trial be- counsel at fective assistance [any] par rather a whole process as defense an alibi promised cause Watts outcome on the impact ticular ali- the purported he knew although not re Henry had Henry’s case”—concluded vouch could not witness bi assis- ineffective constitutionally crime, ceived time whereabouts *10 58 II,
tance.
565-66,
to,
95
at
N.Y.2d
721
supra,
N.Y.2d,
91
712,
at
674
(inter-
578-79,
N.Y.S.2d at
tiveness and the federal standard. It de- scribed the federal standard as follows: In evaluating ineffective assistance of The Federal test for evaluating inef- claims, counsel this Court has consis- fective assistance of counsel claims is set tently applied a approach “flexible” (466 forth v. Washington Strickland (People Benevento, v. 708, 91 N.Y.2d 668, U.S. 584). 674 N.Y.S.2d 80 L.Ed.2d 697 N.E.2d 674). To long “So overcome the evidence, law, presumption effective representation, the circumstances particular of a case, defendant (1) viewed in must totality and demonstrate that attorney’s as of the time of representation, performance deficient, (2) reveal that the attor- but ney provided meaningful representa- unprofessional counsel’s errors, tion,” a defendant’s is a right constitutional there “reasonable probability” that to the effective assistance of counsel will outcome of the proceedings would have Baldi, been met (People (id., have been different 137, 147, N.Y.2d 2052). N.Y.S.2d S.Ct. The United States Su- 400). Thus, N.E.2d preme standard in Court has held that “touch- New long York has been whether the stone” prong second analy- “meaningful sis is whether performance defendant counsel’s afforded representation” (see, People v. Beneven- rendered the proceeding fundamentally
59 Indeed, the (see, result unreliable an or left unfair defense. misidentification was 364, thrust of the Fretwell, 369- 506 U.S. v. misidentifica- Lockhart defense was, by 180). tion, buttressed part, which 838, 122 L.Ed.2d 370, S.Ct. 113 testimony. Counsel alibi witness’s the *, 721 n. at 566 II, 95 N.Y.2d Henry vigor- defense supported that further of N.Y. Court n. *. The 579 at N.Y.S.2d reliability of the vic- attacking the ously State by the request rejected a Appeals the highlighting tim’s identification adopted be standard federal description victim’s in the discrepancies York standard: New lieu of the of the extensive In view of defendant. for evalu- test our well-settled Despite and counsel’s defense misidentification counsel of assistance ineffective ating we respects, in all other competency this Court claims, ask People attempt that counsel’s conclude failed standard, maintaining Federal adopt most an unsuc- was at an alibi establish than the State’s precise more is that it be character- cannot tactic cessful standard. representation” “meaningful (see, People assistance ized as ineffective recognized previously has This Court 1029, 1027, Jackson, 438 52 N.Y.2d v. Federal between the differences 97). 299, 420 N.E.2d N.Y.S.2d and has ineffectiveness, tests State 566, 721 II, at N.Y.S.2d 95 N.Y.2d application consistently adhered (footnote omit- 578-79, 112 N.E.2d 744 at test representation” “meaningful our of added). of ted) The N.Y. Court (emphases Benevento, 91 supra, (see, People v. Ap- accordingly remanded Appeals 713-714, N.Y.S.2d N.Y.2d, at any re- of for resolution pellate Division Claudio, su- 584; v. People 697 N.E.2d remand, the Appellate On maining issues. 79-80, N.Y.2d, N.Y.S.2d pra, 83 convictions. See Henry’s Division affirmed so, 384). we doing In N.E.2d 490, 721 A.D.2d Henry, v. People representa- “meaningful have clarified 2001). (2d Dep’t N.Y.S.2d component prejudice to include a tion” trial in the state moved then on which “fairness focuses Law Proc. to N.Y.Crim. [any] pursuant court rather as a whole process 440.10(l)(h) on his convictions to vacate § outcome impact particular trial evidence, beyond the Benevento, supra, 91 the basis (People case” intro- counsel’s record, whether trial as to N.Y.2d, N.Y.S.2d alibi evidence fallacious 584). duction of further clarification No N.E.2d than error. rather strategy result of required. the standard from Watts an affidavit Henry submitted here, con that standard Applying intentionally having denied in which Watts meaning received that defendant clude testimony as alibi the irrelevant introduced prose Although the representation. ful as his use of Person “tactic,” stating that testimony, the alibi discredited cution mis- an honest simply alibi witness an compro “seriously did not this alone take: trial right to a mise” fair defendant’s litiga- appellate the course 5. Hobot, (see, 84 N.Y.2d People v. argued case, People have tion this N.E.2d 1022, 622 N.Y.S.2d I strategy, of trial that, a matter 1102). represented competently Counsel Person Ms. called might have called stages other interests defendant’s attempt to deceive in a deliberate presenta counsel’s proceedings, alibi, irrelevant adopting jury into not di testimony did alibi tion of could not that Ms. Person knowing legitimacy minish of defendant’s *12 [Henry] for night of the crime. Ac- argued before the Appellate Division that cording to People this would have “the record conclusively demonstrated legitimate been a since, trial strategy if that ‘defense counsel ... had actual discrepancy went jury unnoticed the knowledge before trial that defendant’s ali- adopt alibi irrelevant and ac- bi witness could not vouch for appellant’s ’ and, quit if the irrelevance of the alibi whereabouts at the robbery” time of the (State’s exposed was the defense would be no in Affirmation Opposition to Mo- worse off than if it presented had no tion To Vacate Judgment at 7 (quoting alibi at all. Henry’s brief Appellate Division at 22) (emphases in originals)).
6. over The -twenty years practice of State argued also .that prosecutor as a Watts’s affidavit ir- was lawyer, defense I relevant because have never the N.Y. employed Ap- Court of any those or simi- peals had lar trial not decided that the tactics. To have called fallacious Ms. alibi was Person in not the result attorney error; deliberate attempt per- rather, argued, suade State adopt an irrelevant would, Appeals had believe, alibi I decided that simply been unethi- counsel’s have error did not addition, cal. In cause Henry prejudice. I do not Fi- accept that it nally, the argued could State ever make strategic sense to motion jeop- ardize a strong Henry’s meritless because case knowingly pre- claim amounted to senting nothing an irrelevant more his jury. alibi to a dis- agreement with counsel’s strategy and My 7. reason calling Ms. Person for that, in any event, that strategy was not as an alibi witness in this case my harmful. that she knew Mr. Henry’s where- belief abouts at the time the crime. From In a decision dated March her trial testimony it appears now state trial agreed court with the State’s Ms. Person was confused either about interpretation of the N.Y. Court Ap- night on which she and Mr. Henry peals decision and ruled Henry’s inef-
had planned to go to the movies about fective-assistance-of-counsel claim was pro- the night on which the crime was alleged cedurally barred because “the issue raised to have occurred. case, In either it was herein was previously upon determined an honest mistake. I had believed appeal ....” People If v. Henry, Ind. No. that Ms. Person was unable to account (Sup.Ct. Queens County, 4062/95 Mar. Mr. Henry’s whereabouts at the time 2002) ”). for III (“Henry to appeal Leave crime, I would not have called her decision to the Appellate Division was de- anas alibi witness. nied.
(Affidavit of Patrick Watts February dated C. The Decision the District Court (“Watts ¶¶ Aff.”), (emphases 5-7 the Present Proceeding
added)). Having The exhausted § State his opposed motion, state-court 440.10 reme- dies, Henry contending, alia, present filed his peti- inter habeas proce- it was tion, durally pursuing the barred because the ineffective-assistance-of- issues raised counsel either claim he were had decided on the asserted his during merits direct appeals Henry’s § direct his 440.10 appeal or motion. Henry were not raised argued that he appeal direct had been and should have been. argued State that the Watts Affidavit denied the effective assistance of counsel was irrelevant in part because where his lawyer trial promised an alibi Supreme Court by the United States elicit
defense, proceeded “‘strong pre- It noted crime, continued Strickland. night after falls with- conduct that counsel’s sumption on the defense fallacious this press *13 profes- of reasonable range wide ex- in the prosecution after jury even ” (quoting assistance,’ id. at 20 fatally un- irrelevance, thereby sional its posed Strickland, 104 S.Ct. at 466 U.S. poten- a otherwise what was dermining “strategic defense, 2052), rule that general and misidentification tially powerful thorough after by counsel a on made choices capitalized prosecution and where the ex- and law [to investigation of facts reli- ridiculing counsel’s these errors necessary defense] to the reasonably alibi, that tent arguing fallacious on the ance unchallengeable,’” District ‘virtually jury and are had lied witness the alibi Strickland, (quoting at 20 Opinion Court so unreliable was that she suggesting 2052). at alibi 466 concoct an U.S. even not that could she night. correct “[t]he that court found Although the Sup- Law in (Petitioner’s of Memorandum reliance on counsel’s capitalized prosecutor at 9 Corpus for Habeas Petition alia, of port by, inter defense” fallacious on this argued original)). in (emphasis and fabricated alibi was that the “argu[ing] on reliance counsel’s “[d]efense that Person had the fact that that suggesting] blunder, it colossal was a defense day evidence wrong was about testified defense, strong otherwise destroyed an Opinion fabrication,” District Court of the likely therefore, overwhelmingly is, it and that the N.Y. court concluded at at chance [Henry] sound a it cost II was in Appeals decision Court 37.) (Id. at acquittal.” application unreasonable not an in standard. petition court denied Strickland The district Memorandum, dated & Order Judgment a as representation counsel’s Considering (“District Opinion” Court October reason- whole, York Court the New a IV”). observed The court “Henry or provided counsel concluded ably re- Appeals had N.Y. Court of since the representation. with effective petitioner Henry’s ineffective-assistance-of- jected record reveals regard, In this merits, habeas federal on its claim counsel effectively repre- and zealously counsel granted not be could relief corpus stage of the every petitioner sented was court decision state claim unless trial, counsel Before proceedings. un- objectively to, contrary or involved identifi- the victim’s suppress moved of, clearly estab- application reasonable extensively cross-ex- testimony, cation by the law, announced lished federal witness, and police the State’s amined Court, Supreme States United unduly sug- line-up was that the argued determination unreasonable based on an trial, counsel strenuous- .... At gestive evidence, see of the light in the facts ap- ... prosecution’s objected to the ly (2). 2254(d)(1) District §§ U.S.C. introduce evidence [to plications 9-10, 25. Opinion Court ..., conduct- prior convictions] Henry’s ..., deliv- voir dire competent aed Amend- Sixth a defendant’s Noting that statement, opening an effective ered right to counsel is “right ment effec- strong misidentifica- he raised which counsel,” District Court tive assistance prose- emphasized defense and tion (internal marks quotation Opinion at Through- . proof burden Opin- cution’s omitted) District (emphasis trial, counsel the course out set the standard ion), described the court raised objections numerous tooth, the pros- and that large he had a tattoo on questions ecutor’s arguments, many chest, his arguing that these factors also of which were sustained. He also con- supported the conclusion that petitioner ducted extensive cross-examination of not perpetrator .... Counsel witnesses, the State’s efficiently attack- emphasized that eyewitness neigh- ing the victim’s credibility by eliciting bor who had police called the was never testimony that he had a suspended li- questioned, and testify trial, did not cense and a misdemeanor conviction thus implying that there was gap
the State’s evidence .... *14 objected Counsel also presented portions to of Counsel four exhibits to and, court’s charge verdict, after the support defense, his misidentification in- argued sentence, for a lenient citing cluding complaint report, pe- which re- youth titioner’s and family discrepancies background vealed between the vic- as mitigating description petitioner Then, factors .... after tim's initial sentence imposed, appearance, request- counsel his actual and the arrest petitioner ed that receive credit for photograph, although which showed that time he already had petitioner Thus, .... served Mitchell had described as hav- viewed its totality, ing short, wavy hair, petitioner the record demon- had a full strates that counsel zealously, head of hair at the time of the arrest thorough- and effectively ly, represented republished lineup petitioner (cid:127). Counsel also (cid:127) throughout the trial. photo jury, arguing that the line- up suggestive petitioner There is no possibility that, absent because was taller (cid:127) than the five fillers (cid:127) counsel’s decision to elicit the alibi testi- presented mony, the petitioner’s outcome of trial Counsel a defense witness- Person, attempt would have been different. Lakesha not to to petitioner, offer an alibi for but also to District Court Opinion at 28-30. The support the misidentification defense. court denied petition for habeas but vein, peti- granted In this counsel elicited that a certificate of appealabili- large chest, tioner had a tattoo on his ty, finding that he “ha[d] made a substan- by which had not been described tial showing of the possible denial of a victim Counsel also elicited that in right.” constitutional Id. at 30. years know[n] the four that she had II. DISCUSSION petitioner, Person never saw him wear a gold appeal, On tooth in his mouth-a characteristic contends that the dis- the victim had mentioned in this trict court should have granted his habeas description petition because the state court’s holding of the robber During summation, his counsel pre- in Henry II that he not been denied a sented cohesive summary of the evi- constitutionally effective assistance dence supporting the misidentifieation counsel constituted an appli- unreasonable defense. He persuasively argued cation the Supreme Court’s standard Mr. description Mitchell’s of the perpe- established in Strickland. For the rea- trator did not petitioner’s match follow, appear- sons agree.
ance, and specifically highlighted the dif-
A. The Strickland Standard
and the
ferences between Mitchell’s description
Merits Henry’s Claim
and petitioner’s
pedigree information
.... He also referred to Person’s testi-
In Strickland,
the Supreme Court
mony
petitioner
did not have a gold established a two-pronged test for deter-
ineffective
to
not amount
vestigation do
Sixth
defendant’s
a
mining whether
assis-
the effective
long
right
Amendment
assistance-so
as the known facts
that further
believe
it
reasonable
made
violated.
had been
of counsel
tance
690-91,
unnecessary, id. at
investigation was
violation, a convicted
such
prove
order
2052.
(a)
S.Ct.
coun-
“that
show both
must
defendant
objective
an
fell below
representation
sel’s
prong
“prejudice”
The
under
....
reasonableness
standard
court to deter
requires
Strickland test
norms,” 466 U.S.
professional
prevailing
deficient
whether,
counsel’s
but for
mine
(b)
the defi-
“that
S.Ct.
proba
a reasonable
“there is
performance,
defense,”
prejudiced
performance
cient
proceeding
bility that
...
result
serious
so
were
i.e.,
errors
counsel’s
“that
different,”
466 U.S.
have been
trial, fair
of a
defendant
deprive
“error
coun
694, 104 S.Ct.
reliable,”
id.
whose result
trial
unreasonable,
sel,
professionally
if
even
Strickland
2052.
judg
setting aside
does not warrant
prong.
of each
contours
on the
elaborated
*15
if the error
proceeding
criminal
of a
ment
691,
id. at
judgment,”
on the
no effect
had
considering
quality-of-rep
In
Indeed,
the defendant
2052.
104 S.Ct.
i.e.,
counsel’s
whether
prong,
resentation
unprofes
that the
than
show more
must
objective stan
an
fell below
performance
some con
merely “had
performance
sional
reasonableness,
must bear
a court
of
dard
693,
2052.
effect,”
104 S.Ct.
id. at
duty to
ceivable
“has
that counsel
a.
in mind both
probability”
satisfy the “reasonable
To
knowledge
and
skill
such
to bear
bring
not show
test, however,
need
“a defendant
adversarial
a reliable
trial
will render
likely
more
conduct
deficient
2052,
counsel’s
that
688, 104 S.Ct.
id. at
testing process,”
case,”
in the
the outcome
not altered
than
have “wide latitude”
must
counsel
and that
added).
of the
purpose
689,
(emphases
id.
decisions,
at
104
id.
tactical
making
“the Assis
of
guarantee
Amendment
Sixth
Thus,
must make
court
2052.
S.Ct.
VI,
Amend.
Counsel,”
Const.
U.S.
tance
the distort
...
to eliminate
“every effort
“ ‘effec
have
defendants
is to ensure
to
hindsight,
reconstruct
ing effects
”
Strickland,
counsel,
assistance
tive’
challenged con
of counsel’s
circumstances
(quoting
686,
2052
S.Ct.
104
at
466 U.S.
conduct from
duct, and to evaluate
Richardson,
771
397 U.S.
v.
time,”
McMann
and
at
perspective
counsel’s
L.Ed.2d
S.Ct.
n.
strong presumption
indulge
“must
necessary
is,
(1970)),
“the assistance
the wide
falls within
conduct
counsel’s
the outcome
justify
reliance
assis
professional
of reasonable
range
Strickland,
at 691-9
466 U.S.
-proceeding,”
2052.
S.Ct.
at
466 U.S.
tance.”
added).
(emphasis
by counsel
or omissions
Actions
“
any
judging
for
Thus,
benchmark
“[t]he
trial strate
sound
be considered
‘might
”
whether
be
must
claim ineffectiveness
assis
ineffective
not constitute
do
gy’
prop
so undermined
Louisiana,
conduct
counsel’s
Michel
Id. (quoting
tance.
process
the adversarial
functioning of
er
158,
will have
a pervasive
effect on the
provide Henry with an
only
for the
inferences
be
drawn from the evi-
wrong
hardly
date is
a matter of hind-
dence, altering the entire evidentiary
sight. Although Watts stated in his affi-
picture, and some will have had an iso-
that,
davit
in his investigation he had inter-
lated,
Moreover,
trivial effect.
a verdict
viewed Person about Henry’s whereabouts
conclusion
weakly supported by
night
“on the
crime”
had been
record is
likely
more
to have been
told that
was with
by errors
her “that night”
than one with over-
affected
(Watts
¶2),
whelming record
Aff.
support.
and stated that “it now
¶
appears”
(id.
that Person was confused
695-96,
Id. at
thing, we (Tr. (emphasis story.” with that went here, has When, court as state added).) mer claim on the petitioner’s rejected the a habeas its, considering a federal court totality of the sum, “considering] the 2254, § Strickland, under 28 U.S.C. petition corpus jury,” ... before evidence AEDPA, must defer by amended and bear- 104 S.Ct. 466 U.S. claim, and rejection court’s state or conclusion that “a verdict ing in mind (to extent unless deny the writ must record is by the supported only weakly here) adjudica the state-court pertinent by errors have been likely to affected more (2) to,” (1) “involved contrary “was sup- tion overwhelming record than one with of,” clearly es application lack an unreasonable 104 S.Ct. id. port,” “as determined law tablished federal Henry’s trial the result confidence that States,” of the United Supreme any evidence rehable, the lack of given 2254(d)(1); § see Williams U.S.C. other than Henry to the crime to connect 412-13, Taylor, 529 U.S. arguably suggestive from an his selection (2000). Thus, a L.Ed.2d 389 identification subsequent lineup, and received is that he claim whose description petitioner trial, by whose initial a victim not of counsel to, ineffective assistance Henry as from differed *19 of the robber but satisfy Strickland standard hair must alia, weight, and height, age, inter rejec court’s the state conclude, also must show given cannot length. We contrary was either defense, of his claim tion misidentification persuasive applica an unreasonable that, but Strickland probability is no reasonable there Williams, Strickland, see, 529 e.g., tion of repre- professionally deficient for counsel’s 1495; Bell v. 412-13, 120 S.Ct. U.S. at portion significant devoting sentation 1843, 699, 685, 122 S.Ct. Cone, 535 U.S. of false presentation the defense 68 Senkowski, (2002);
152 914 L.Ed.2d Eze v. court though even not all ju reasonable (2d Cir.2003) 110, (“Eze”); 321 F.3d 122 agree rists would the state court’s Goord, 184, 192-93; v. 263 F.3d at application Loliscio was unreasonable. See 529 (2d Keane, 191, 409, Lindstadt v. 239 F.3d 198 U.S. at 120 (appellate S.Ct. 1495 Cir.2001) (“Lindstadt ”). ruling court’s that a state-court decision can constitute an applica “unreasonable A state-court decision is “con tion ... if the state applied court has trary” clearly established federal law federal law in a manner that reasonable 2254(d)(1) § within meaning if it is jurists agree all is unreasonable” “diametrically from, different” “opposite (internal quotation marks “erroneous” to, character or nature” or “mutually op omitted)). Rather, “a federal habeas court posed” Supreme the relevant Court making the application’ ‘unreasonable in Williams, precedent. 405, 529 U.S. 120 quiry should ask whether the state court’s (internal S.Ct. quotation 1495 marks omit application clearly established federal ted). Thus, a may federal court grant law was objectively unreasonable.” Id. at “contrary under the habeas clause “if to” 409, 120 added). S.Ct. (emphasis The court state arrive[d] a conclusion Williams Court concluded that “[u]nder opposite to that Supreme] reached th[e clause, ‘unreasonable application’ a fed question Court on a of law or if the state eral may grant habeas court the writ if the court differently decide[d] case than state court identifies the correct governing th[e] Court has on a materially set of legal principle from this Comb’s decisions indistinguishable Williams, facts.” unreasonably but applies that principle to 413, 120 U.S. at S.Ct. 1495. the facts of the prisoner’s case.” Id. at 413, 120 The application” “unreasonable S.Ct. 1495. is independent standard “contrary light of the Williams discus standard; to” clearly and it is less defined. sion, this Court has concluded that an clear, however, Williams Court made “objectively unreasonable” application of “ that although ‘unreasonable’ is no doubt Supreme precedent falls somewhere define,” difficult to id. at “merely between erroneous and unreason 1495, the term “unreasonable application” jurists.” able to all reasonable Francis S. of federal law means more simply Stone, (2d Cir.2000). 221 F.3d “erroneous” or “incorrect” application, id. “Some increment of beyond incorrectness 1495; see, e.g., S.Ct. Bell v. required,” error but that “increment Cone, 694, 122 535 U.S. at S.Ct. 1843. “[A] need not great.” be at 111. Id.
federal may habeas court not issue the writ simply because that court concludes in Application C. the AEDPA Standards independent its judgment that the relevant II state-court decision applied clearly estab As above, discussed in Part I.B. the N.Y. lished erroneously federal law or incorrect Court of Appeals in II rejected ly. Rather, that application must also be Henry’s ineffective-assistance-of-counsel Williams, unreasonable.” 529 U.S. at claim, using its approach,” “flexible 1495. S.Ct. N.Y.2d at 721 N.Y.S.2d at hand, (internal
On the other
Williams also N.E.2d
quotation
marks omit-
made clear that
ted),
a federal habeas court
which had been enunciated
People
may permissibly
Baldi,
conclude that federal
137, 147,
law v.
54 N.Y.2d
444 N.Y.S.2d
*20
has
unreasonably applied
893,
been
898,
(1981) (“Baldi
the state
”),
69
if the court
claim is established
sistance
1984 decision
Court’s
Supreme
prior to
unprofes
that “but for counsel’s
concludes
approach
Under
in Strickland.
errors,
proba
there is
‘reasonable
sional
law,
evidence,
long as the
“[s]o
proceedings
bility’ that the outcome
case,
particular
of a
the circumstances
II,
different,” Henry
95
would
been
have
the time of
totality and as of
in
viewed
*,
at 579 n.
566 n.
721 N.Y.S.2d
N.Y.2d at
attor
reveal that the
representation,
*
Strickland,
687,
U.S. at
(quoting
466
meaningful representation,
ney provided
2052),
694,
whereas the New
have
will
requirement
the constitutional
...
“prejudice component
York standard’s
Baldi,
N.Y.2d,
54
(People v.
met”
been
as a
process
‘fairness of the
focuses
893, 429 N.E.2d
147, 444 N.Y.S.2d
at
impact
[any] particular
whole rather
400).
whether
inquiry
is
The core of
’ (People v.
the case
on the outcome of
repre
“meaningful
defendant received
N.Y.2d,
714,
Benevento,
674
91
at
supra,
sentation.”
584),”
II,
629,
697 N.E.2d
N.Y.S.2d
708, 712,
Benevento,
N.Y.2d
91
People v.
579,
566,
at
744
at
721 N.Y.S.2d
95 N.Y.2d
632,
629,
N.E.2d 584
697
N.Y.S.2d
674
II)
(em
(brackets
112
N.E.2d
”).
(1998) (“Benevento
The N.Y. Court
ours).
phasis
approach
this
dif
Appeals has noted
Benevento,
Appeals
the N.Y.
Court
forth in Strick
standard set
from the
fers
flexible
stated
while its
II,
See,
N.Y.2d at
e.g., Henry
95
land.
quality
of the
focuses on
inquiry
579,
112
566,
at
744 N.E.2d
721 N.Y.S.2d
accused,
provided to
representation
(“[t]his
recognized
previously
has
ultimately
is
of ineffectiveness
the claim
between
Federal
the differences
pro-
of the
with the
concerned
fairness
ineffectiveness,
has
tests for
State
particular
its
a whole rather than
cess as
application
consistently adhered
of the case....
on the outcome
impact
test”); Be
‘meaningful representation’
our
Thus,
have
whether
713,
nevento,
at
defendant
at
674 N.Y.S.2d
91 N.Y.2d
charges but
acquitted
been
Strickland,
633,
(“prior
584
697 N.E.2d
relevant,
not dis-
but
errors is
counsel’s
‘developed a somewhat different
constitutional
the State
positive under
of counsel
assistance
test for ineffective
assistance
guarantee
I,
Con
of effective
§ 6 of the New York
under article
counsel.
by the Su
employed
from that
stitution
714,
Benevento,
N.Y.S.2d
Amendment’
at
674
the Sixth
91 N.Y.2d
applying
preme Court
(P
added).
79,
Claudio,
76,
633,
(emphasis
N.Y.2d
N.E.2d 584
eople v.
83
697
384).’.’);
“[wjhereas
prej-
912,
Thus,
Peo
tests contain
N.E.2d
both
629
607 N.Y.S.2d
76, 79,
of the
Claudio,
607
component,
N.Y.2d
touchstone
83
udice
ple v.
(1993)
pro-
912, 914,
fairness of
N.E.2d 384
test is ‘the
629
New York
N.Y.S.2d
Baldi,
Benevento,
whole,’
N.Y.2d at
(same)
People
[91
(“compar [ing]
cess as a
893,
633,
the federal
147,
714,]
while
N.Y.S.2d
N.Y.S.2d
N.Y.2d
proceed-
Wash
the outcome
... with Strickland v.
test
N.E.2d
considers
Strickland,
defendant,
466 U.S.
ing
S.Ct.
for the
ington,
U.S.
Eze,
674”).
....”
321 F.3d
S.Ct.
80 L.Ed.2d
at 123.
between
difference
acknowledged
difference,
this
Notwithstanding that
stan-
and the New York
the Strickland
occasions
least
Strickland,
ruled on at
three
has
when Court
that,
under
dards
articulated
as
York standard
that the New
judged
has been
performance
counsel’s
evidence,
{i.e.,
long
deficient,
“[s]o
Baldi
as-
unreasonably
ineffective
*21
law,
(albeit
and the circumstances of a partic
incompetent) does not render
case,
ular
in totality
viewed
and as of the
proceeding unreliable,
result
time of
representation,
reveal that the
hence make the proceeding itself unfair.
attorney provided meaningful representa
sure,
hardly
however,
We are
that com-
tion, the
requirement
constitutional
will parison at
generality
that level of
appro-
is
met,”
have been
54 N.Y.2d at
Williams,
priate.
In
Supreme
Court
400)
N.Y.S.2d at
429 N.E.2d
is not
stated as follows:
“contrary to” the Strickland standard for
A state-court decision will certainly be
2254(d)(1).
purposes
Lindstadt,
§of
See
contrary to our clearly
prec-
established
(“standard
why they story.”)). went with that itAs is
“axiomatic,”
Parness,
v.
United States
503
SACK,
Judge, concurring.
Circuit
438,
presentation
F.2d
that the
of false
in
exculpatory
general,
evidence
and false
fully
I
concur in
thorough
particular,
likely
alibi evidence in
to be
thoughtful opinion
Judge
Kearse.
I
by
evincing
viewed
conscious pause to note that
expresses
it
doubt about
here,
ness of guilt, the
alibi defense
false
our previously stated view that the New
diminishing
while not
“legitimacy”
of York
Appeals
Court of
as to
rule
ineffec
defense,
may
misidentifieation
well
see,
tive
counsel,
assistance of
e.g., People
have diminished its effectiveness. And the
Benevento,
708,
v.
91 N.Y.2d
697 N.E.2d
Henry II Court’s reliance on “counsel’s 584,
(1998),
write to note that I nonetheless CONCLUSION find considerable in Judge merit Kearse’s above, For the stated reasons we re- criticism of the rule. Our decision here judgment verse the of the district court does not turn on its correctness. If. and appeal to decide an required are when we does, Supreme assuming guidance in the give not us does to con-
interim, well advised might be as a for en bane review appeal
sider Landell the issue. to reconsider
means Cf. Cir.2005) (2d Sorrell, 406 F.3d J.,- Katzmann,
(Sack, concurring J. *24 banc). rehearing en
denial of AND MARINE INSUR PAUL FIRE
ST. the Durst Or
ANCE COMPANY a/s/o Inc.,
ganization, and Four Times Association, L.L.C.,
Square Plaintiffs-
Appellants,
v. SUPPLY, BUILDERS
UNIVERSAL
Defendant-Appellee, Corporation
Tishman Construction York, Defendant.
of New SUPPLY, BUILDERS
UNIVERSAL
INC., Third-Party-Plaintiff, Company, AIU Insurance Insurance
TIG Royal
Company, and Insurance Com America, Third-Party-Defen
pany of
dants-Appellees. No. 0004-2076-CV.
Docket Appeals, Court of
United States
Second Circuit. 18, 2005.
Argued: Feb. May 2005.
Decided: