Hemstreet v. Greiner

• Decision Date: 20 June 2007
• Docket Number: Docket No. 02-2747-pr.
• Citation: 491 F.3d 84
• Parties: Charles HEMSTREET, Petitioner-Appellee, v. Charles GREINER, Superintendent, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

491 F.3d 84

Charles HEMSTREET, Petitioner-Appellee, v. Charles GREINER, Superintendent, Respondent-Appellant.

Docket No. 02-2747-pr.

United States Court of Appeals, Second Circuit.

Argued: November 3, 2006.

Decided: June 20, 2007.

Monica R. Jacobson, P.C., New York, NY, for Petitioner-Appellee.

Michael E. Bongiorno, District Attorney, Rockland County (Ann C. Sullivan, Special Assistant, District Attorney, of counsel) New City, NY, for Respondent-Appellant.

Before: MESKILL, SACK, and B.D. PARKER, Circuit Judges.

Judge MESKILL dissents in a separate opinion.

B.D. PARKER, JR., Circuit Judge:

Following his murder conviction in New York state court, Petitioner Charles Hemstreet sought a writ of habeas corpus principally on the ground of ineffective assistance of counsel. He claimed that officers investigating the murder had intimidated a potentially exculpatory witness, causing her not to testify at trial, and that counsel had omitted to pursue this issue both at trial and on appeal. Based on these allegations, as well as trial counsel's failure to supply an alternative explanation for not calling the potentially exculpatory witness, the United States District Court for the Southern District of New York (Brieant, J.) granted the petition and this Court affirmed. See Hemstreet v. Greiner, 367 F.3d 135, 136 (2d Cir.2004) ("Hemstreet I").

Shortly after we issued our opinion, the witness contacted the district attorney's office responsible for prosecuting the case and recanted her potentially exculpatory statements. We then nostra sponte vacated our opinion along with the district court's judgment and, retaining jurisdiction, remanded the case to the district court to evaluate the effect of the recantation. See Hemstreet v. Greiner, 378 F.3d 265, 268-69 (2d Cir.2004) ("Hemstreet II"); see also United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994). On remand, the district court, following an evidentiary hearing, adhered to its previous conclusion and, once again, granted the petition. See Hemstreet v. Greiner, No. 02 Civ. 1667(CLB), 2005 WL 3434412 (S.D.N.Y. Oct.13, 2005) ("Hemstreet III").¹ Because we conclude that Hemstreet failed to establish that the state court's resolution of his claim of ineffective assistance of counsel was unreasonable, we reverse and remand to the district court with instructions to dismiss the petition.

BACKGROUND

Hemstreet was convicted in January 1998 in New York Supreme Court, County of Rockland of the second-degree murder in 1992 of his business partner, Kenneth Hiep. On direct appeal, Hemstreet's counsel challenged the sufficiency of the evidence supporting the verdict. The Appellate Division affirmed the conviction. See People v. Hemstreet, 270 A.D.2d 499, 706 N.Y.S.2d 337 (2d Dep't 2000). Hemstreet petitioned that court for a writ of error coram nobis on the ground that he was denied effective assistance of trial and appellate counsel. Specifically, he claimed that appellate counsel had failed to pursue a meritorious ineffective assistance of counsel claim on direct appeal. The claim against trial counsel was based on his failure to seek a remedy for the prosecution's alleged intimidation of a potentially exculpatory defense witness. The Appellate Division denied the petition because Hemstreet had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Hemstreet, 290 A.D.2d 458, 459, 738 N.Y.S.2d 583 (2d Dep't 2002). Hemstreet then filed the petition for a writ of habeas corpus that underlies this appeal asserting ineffective assistance of appellate counsel on largely the same grounds.

Hemstreet's petition centers on the alleged intimidation of a potentially exculpatory defense witness, Jeanette Bucci, by officers investigating the Hiep murder. In a June 1997 affidavit prepared and notarized prior to trial by "`an interim attorney of sorts' for Mr. Hemstreet," Hemstreet III, 2005 WL 3434412, at *4, Bucci swore that on the night of the murder, she had seen Hiep, Hemstreet, and Patrick Bentz (a friend of Hemstreet's who was separately convicted of murdering Hiep) together at a bar where she worked. According to Bucci's affidavit, the three men left the bar at around 9:45 that evening but Hiep and Bentz returned at about 10:30 without Hemstreet. Bucci also stated in her affidavit that in 1992 she had given essentially the same information to investigators from the district attorney's office.

In November 1997 detectives visited Bucci's parents' home, and the following day met with Bucci at her workplace. According to the detectives' notes from that meeting, Bucci gave a statement mostly consistent with her affidavit. She added that despite not seeing Hemstreet in the bar at 10:30, he "could have been there."

If true, Bucci's statements would have supported the defense's theory that Bentz had taken Hemstreet home prior to killing Hiep. However, at trial Hemstreet's attorney informed the court that Bucci was refusing to testify or to meet with him because investigators had visited her mother and sister and warned them that, if Bucci testified, "they were in for a lot of trouble." See Hemstreet I, 367 F.3d at 137. Trial counsel did not seek to remedy this alleged intimidation other than by asking the court to stop any future threats. See id.

In reviewing Hemstreet's habeas petition, the district court found that this conduct amounted to ineffective assistance of counsel because "`[n]o plausible basis in trial tactics could justify failure to pursue the issue [of Bucci's alleged intimidation] by demanding a hearing in the trial court.'" Hemstreet I, 367 F.3d at 138 (quoting the district court's unpublished opinion). Likewise, the court found that "`no tactical decision [could] justify failure to raise the issue on direct appeal.'" Id. The court granted the petition. It concluded that Hemstreet's Sixth Amendment rights had been violated and that the Appellate Division's rejection of his ineffective assistance claim was an unreasonable application of clearly established federal law. See id.; 28 U.S.C. § 2254(d)(1).

On appeal we concluded that although "[t]he record does not definitively establish whether the prosecution intimidated Bucci," the district court did not clearly err in finding that she "became unavailable as a witness to Hemstreet because she had been threatened by detectives from the prosecutor's office." Hemstreet I, 367 F.3d at 139-40. Based on that finding of fact, together with trial counsel's failure to provide any alternative explanation for not calling Bucci as a witness, we concluded that trial counsel's performance fell below an objective standard of reasonableness. Id. at 140. We further concluded that this deficient performance affected the outcome of the trial, and that appellate counsel had an obligation to raise the issue on direct appeal. Id. at 140-41.

After our opinion was issued, Bucci contacted the Rockland County District Attorney's office and asserted that she had in fact never been intimidated by the detectives. Hemstreet II, 378 F.3d at 268. She admitted to having lied in key portions of her 1997 affidavit, and explained that she now "wanted to make it right." Id. Based on this recantation, we vacated our earlier decision, and remanded for the district court to reevaluate the case and to allow Hemstreet the opportunity "to flesh out and otherwise examine Bucci's new explanation." Id. at 269 (footnote omitted).

On remand, the district court conducted an evidentiary hearing at which several witnesses testified. Hemstreet's trial counsel, Murray Richman, Esq., testified that he met Bucci for the first and only time around the beginning of the defense case, after he had informed the court that she refused to appear. He further testified that at that face-to-face meeting, Bucci confirmed that her family had been visited by detectives and that she would not testify on Hemstreet's behalf. He stated that Bucci "seemed really disturbed, and I didn't want to put a witness on that I did not know what she was going to say." Trial counsel's daughter, who served as co-counsel during the trial, and was present for the meeting, testified that Bucci appeared "genuinely upset."

Bucci offered a starkly different account of this meeting. She testified that trial counsel was accompanied not only by his daughter but by Hemstreet himself. Bucci stated that she spoke privately with counsel and told him she could not testify because she had falsified her affidavit. She explained that on the night of the murder she left work as soon as her shift ended, and thus was not present to witness Hiep and Bentz return to the bar alone, as she had attested. Bucci further denied ever telling counsel or his daughter that the police had threatened her or her family members.

Bucci's mother testified that she did not remember whether or not the police had visited her in 1997, and she did not remember being threatened. Bucci's sister testified that she was not present for the detectives' visit, but that her mother told her that the police had come to her house asking to speak with Jeanette. She stated that her mother gave no indication that the detectives had threatened her. The detectives themselves testified that they only visited Bucci's mother's house in order to locate Bucci herself, and that they never threatened Bucci or her family members. They explained that their conversation with Bucci's mother consisted solely of a brief inquiry as to Bucci's whereabouts.

The district court concluded—given the testimony of Bucci's mother and sister, as well as the detectives who interviewed Bucci in 1997—that there was not sufficient evidence to support a finding that the police had "actually threatened or intimidated Ms. Bucci or that their conduct would be regarded by a reasonable individual as threatening." Hemstreet III, 2005 WL 3434412, at *10. Nevertheless, the district court found that Bucci had "conveyed clearly to Mr....