Greiner v. Wells

Decision Date08 August 2005
Docket NumberDocket No. 04-2809-PR.
Citation417 F.3d 305
PartiesCharles C. GREINER, Respondent-Appellant, v. Ronald WELLS, Petitioner-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Phyllis Mintz, Assistant District Attorney (Charles J. Hynes, District Attorney for Kings County, New York, on the brief, Leonard Joblove, Assistant District Attorney, of counsel), Brooklyn, New York, for Respondent-Appellant.

Richard Ware Levitt, New York, New York, for Petitioner-Appellee.

Before: WINTER, SOTOMAYOR, and WESLEY, Circuit Judges.

WESLEY, Circuit Judge.

This case concerns the proper evaluation of defense counsel's performance under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold that trial counsel's inability to recall why he abandoned a possible defense strategy—when queried seven years and seven hundred cases after petitioner's trial—does not establish a Sixth Amendment violation where a justification appears on the record.


Ronald Wells is an inmate in the Green Haven Correctional Facility, incarcerated following his conviction in New York Supreme Court (Kings County) for second degree murder, see N.Y. PENAL LAW § 125.25(1), and criminal possession of a weapon in the second degree, see N.Y. PENAL LAW § 265.03, for the shooting of Ruben Figueroa. The United States District Court for the Eastern District of New York (Bloom, Magistrate Judge) granted Wells's petition for a writ of habeas corpus on the ground that he was denied effective assistance of counsel when his appointed counsel abandoned at trial a theory that someone else — Richie Roman — committed the crime. A detailed description of the events surrounding Wells's arrest and trial assists in reconstructing the perspective of trial counsel.


In the early evening of January 31, 1995, two teenagers sat down on lobby steps in an apartment building at 1400 East New York Avenue in Brooklyn. The teens talked and smoked cigarettes while three men drank beer and smoked marijuana in the hallway. One of the teens, fifteen-year-old Ruben Figueroa, lived in the building, and the other, slightly older teen, José Morales, had been friends with him for three years. Another friend, Danny Roman, stopped by to talk for several minutes before continuing on to his apartment to wait for his girlfriend.

Ten minutes later, as Figueroa and Morales remained on the steps, two men entered the lobby. The men approached, and one asked Figueroa, "[W]hat are you doing here? What I told you?" The fifteen-year-old responded, "I'm just chilling." The man then pulled out a gun and shot Figueroa in the chest. Morales tried to help Figueroa escape down the hallway, but one of the men shot Figueroa again, this time in the leg; Figueroa told Morales he could no longer move. The two men fled. Paramedics arrived shortly thereafter but were unable to save Figueroa. They pronounced him dead at 7:04 pm.

Detective Nicholas Tropiano investigated the homicide. Tropiano interviewed Morales, who was unharmed. Morales described the initial shooter as a black male, about 26 years old, weighing about 150 or 160 pounds, and approximately five feet, nine inches tall. On January 31 and again on February 1, Tropiano showed Morales hundreds of photographs, and Morales could not identify the shooter from any of them. Wells's photograph was not included.

On February 2, 1995, an anonymous caller left the police a tip that Ronald Wells, a black male in his twenties, was the shooter. The following day, Tropiano prepared a six-photograph array including a January 1995 photograph of Wells, and, later that evening, Morales viewed the photos, immediately identifying Wells as "the man that shot my friend." On February 7, Morales picked Ronald Wells out of a six person lineup and again identified him as the shooter. Tropiano placed Wells under arrest and took Wells's pedigree information — Wells reported he was 27, weighed 120 pounds, and stood five feet, seven inches tall.


Just three days later, on February 10, 1995, Wells was assigned Calvin Simons as counsel. Simons had seven years of trial experience with the Legal Aid Society and a year in private practice; in total, he had tried approximately sixty cases. In the month following Simons's assignment, Simons hired a private investigator, David Walker, to aid in Wells's defense.

Simons developed an alibi defense for Wells. Wells's sister stated that Wells and his common law wife were with her from approximately 4:00 pm on January 31 until the following morning. Wells's wife's recollection was similar, although her recall of the timing differed. His wife related that she and Wells left their apartment around 6:00 pm, arrived via subway at his sister's just after 7:00 pm, and remained there until the next morning. In the course of the investigation, Walker informed Simons that Wells knew of another potential alibi witness, a police officer with whom Wells had spoken at a train station the night of the homicide. Unfortunately, the officer, Walker explained, could not be located.

Simons also received information regarding Wells's and others' motives to kill Figueroa. With regard to Wells, Walker reported a rumor that Wells did the shooting in retaliation for the beating of one of his friends at a nearby building. However, there were also indications that someone else may have been motivated to kill Figueroa, the first indication coming to Simons in a redacted police report dated February 7, 1995. The report detailed a window-shooting incident that occurred just a few days prior to the homicide and involved a conflict between Figueroa's brother José and a person named "Richie." Figueroa, purportedly, was present at the incident. The redacted report read:

On January 31, 1995 at approximately 2300 hrs., I interviewed {REDACTED} in reference to this incident. She made the following statement. She is the sister of Richie and Danny. She said, that Richie did have a problem with Jose, Ruben's brother. Several months ago, Richie and Jose got into a fight at Blimpie's. Jose slashed Richie with a razor and scarred him over his right eye. About two days ago, Richie saw Jose in front of the building. Richie and Jose got into a fight again. Richie came inside. About twenty minutes later, Jose, Ruben and Pito came to the apartment door looking for Richie. Jose said, that he was going to kill Richie. She opened the door and argued with them for a few minutes. She said, that Jose had a gun. Richie then came to the door and told her to close the door, he didn't want to be bother with them. She then close the door.

She and her family were all inside the apartment when Richie was looking out the window and a shot was fired at the window. Richie said, that Jose had fired the shot. Her father made a police report. She said, that Richie is presently in Fort Greene with their older brother, {REDACTED}. She said, that her father had taken Richie over there this morning, because he was afraid for him.

Simons received a memorandum from Walker in May confirming pieces of the February 7 report and indicating that the 1400 East New York Avenue tenant most likely to be "Richie" had disappeared. The memorandum explained that two residents of the apartment building had identified a male Hispanic living at 1H as having had disagreements with Figueroa. It also noted that one resident identified a male Hispanic living on the first floor of the building as the person involved in "the window shooting incident." This individual had "disappeared." Walker's report offered Simons the opinion that "[i]n view of the relationship the deceased had with the [male Hispanic] on the first floor, there is a strong possibility that he was the shooter. The fact that this individual has disappeared, gives support to this probability." Walker's memorandum ended with his conclusion that "those persons residing at the location of 1400 East New York Avenue, who have been interviewed to date, are either afraid to divulge any information or are not willing to give up the shooter, for whatever reason."

Simons received more information regarding "Richie" when he received a clean version of the February 7 police report before trial. This unredacted version of the report indicated that the name of the woman interviewed was Valerie Roman and that the name of the older brother with whom "Richie" was staying at that time was Alberto Roman, Jr. The clean report therefore indicated that the "Richie" and "Danny" referenced within the report were likely Valerie Roman's brothers —Richie and Danny Roman.

Using this information, Simons requested that Walker continue his investigation. Simons's specific request targeted Roman family members. In a letter to Walker dated November 30, 1995, Simons noted that, according to a contemporaneous police report, there were shots fired through a window on January 29, 1995, intended for Richie Roman. Simons requested that Walker investigate both the January 31 homicide and the alleged January 29 window-shooting incident. He listed names of potential witnesses and their addresses. His thirteen-person list included Valerie Roman, Richie Roman, Alberto Roman, Jr., Danny Roman, and Alberto Roman, Sr.

A week later, a possible connection between the window-shooting incident and Ronald Wells emerged. On December 7, 1995, Simons attended a pre-trial conference in the Kings County Supreme Court before the Honorable Michael A. Gary. While discussing Sandoval issues,1 the assistant district attorney warned that if Wells testified she would connect Wells to a gang operating out of 1400 East New York Avenue, establish that Wells carried a firearm and had intimidated people at 1400 East New York Avenue, and, significantly, connect Wells with Alberto Roman, Jr. and establish that both were members of the 1400 East New York Avenue gang. The assistant district attorney explained that Alberto Roman, Jr. was...

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