Hemstreet v. Greiner

• Decision Date: 11 May 2004
• Docket Number: No. 02-2747.,02-2747.
• Citation: 367 F.3d 135
• Parties: Charles HEMSTREET, Petitioner-Appellee, v. Charles GREINER, Superintendent, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

367 F.3d 135

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

No. 02-2747.

United States Court of Appeals, Second Circuit.

Argued October 21, 2003.

Decided May 11, 2004.

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

Vida M. Alvy, New York, NY (Alvy & Jacobson, of counsel), for Petitioner-Appellee.

Before OAKES, MESKILL and B.D.PARKER, Circuit Judges.

Judge B.D. PARKER dissents in a separate opinion.

OAKES, Senior Circuit Judge.

Petitioner Charles Hemstreet seeks habeas relief on the grounds that he received ineffective assistance of counsel from both his trial and appellate counsel, leading to his conviction and incarceration for second-degree murder. Hemstreet argues that counsels' failure to pursue the issue of the state's intimidation of a crucial defense witness prejudiced the outcome of his trial and appeal. The United States District Court for the Southern District of New York, Charles L. Brieant, Judge, granted Hemstreet's habeas petition, finding that Hemstreet's Sixth Amendment right to effective counsel was violated when appellate counsel failed to raise on appeal the issue of trial counsel's performance with respect to the intimidated witness. We agree with the district court that Hemstreet was denied a fair trial and that his appellate counsel's performance was deficient and prejudicial. Accordingly, we affirm the grant of a writ of habeas corpus to Hemstreet.

BACKGROUND

In January 1998, petitioner Hemstreet was convicted of the second-degree murder of his business partner, Kenneth Hiep. Hiep's body, which had numerous stab wounds, was found in a state park in Rockland County in February 1992. Three days earlier, on the last day he was seen, Hiep was with Hemstreet and Hemstreet's friend, Patrick Bentz, at the Old Fashioned Bar in Nyack, New York. At trial, it was the prosecution's theory that when the three left the bar that evening, Hemstreet and Bentz drove Hiep to a secluded place, stabbed him repeatedly, then threw him over an embankment in the state park. The defense theory was that Hemstreet and Bentz dropped Hiep off at the end of his driveway, then drove to Hemstreet's house and dropped him off, at which point Bentz, driving Hemstreet's car, returned to pick up Hiep. Bentz and Hiep then went out partying, after which Bentz killed Hiep.

Bentz was tried and convicted for Hiep's murder. Hemstreet was also convicted, but that conviction was reversed in 1996 due to grand jury error. Prior to Hemstreet's retrial in New York Supreme Court in 1997, his trial counsel learned that a witness named Jeanette Bucci, who at the time of Hiep's murder was a barmaid at a nightclub called Lace, had given exculpatory evidence in 1992 to detectives investigating the case. Bucci swore in a 1997 affidavit that she had told the detectives that she had seen Hiep and Bentz together at Lace, without Hemstreet and after the time at which Hemstreet said he had been dropped off by Bentz.

Hemstreet's trial counsel named Bucci as a potential witness in the retrial and asked the prosecution to turn over any statements Bucci had made to the police in 1992. A few days later, trial counsel informed the court that Bucci had refused to meet with him because detectives from the prosecutor's office had visited her mother and sister and warned them that, if Bucci testified, "they were in for a lot of trouble." Although trial counsel asked the court to stop such threats, counsel did nothing further in response to the fact that Bucci had been intimidated into not testifying. Following the retrial, Hemstreet was again convicted and sentenced by the New York Supreme Court to a term of 25 years to life.

On direct appeal, Hemstreet's appellate counsel did not raise the claim that, in light of trial counsel's failure to seek a remedy for the state's intimidation of a witness, Hemstreet had been denied a fair trial. Hemstreet's conviction was affirmed by the Appellate Division on March 27, 2000. See People v. Hemstreet, 270 A.D.2d 499, 706 N.Y.S.2d 337 (2d Dept.2000).

In August 2001, Hemstreet applied for a writ of error coram nobis in the Appellate Division, arguing that he was deprived of effective assistance of counsel because his appellate counsel had failed to raise the issue of trial counsel's performance with respect to the intimidation of Bucci.¹ Hemstreet's petition was denied in January 2002 in a brief order that did not include any factual findings. See People v. Hemstreet, 290 A.D.2d 458, 738 N.Y.S.2d 583 (2d Dept.2002).

Hemstreet then filed his habeas petition in federal court, relying on the same ineffective assistance of counsel argument that he made in state court. Pursuant to Sparman v. Edwards, 154 F.3d 51 (2d Cir.1998), the district court ordered Hemstreet to request a response to his claims from both his trial and appellate counsel. Trial counsel responded, stating that he could not "with any degree of certainty assert why Ms. Bucci was not called as a witness during the course of the trial." Appellate counsel did not respond.

On November 14, 2002, the district court granted Hemstreet's habeas petition, holding that appellate counsel violated Hemstreet's Sixth Amendment rights by failing to raise valid claims that Hemstreet had been denied a fair trial by virtue of trial counsel's ineffectiveness. The district court found that trial counsel's failure to seek relief for the intimidation of Bucci, a crucial defense witness, was so deficient and prejudicial as to deprive Hemstreet of a fair trial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As the district court stated:

No reasonable basis exists for police to get Bucci's name off the defense trial witness list and then visit her at her home with force and arms, with the intent and foreseeable result that she would become suddenly unavailable to the defense. This is a classic situation of actions tending to prevent a fair trial. No plausible basis in trial tactics could justify failure to pursue the issue by demanding a hearing in the trial court, and no tactical decision can justify failure to raise the issue on direct appeal.

The district court therefore concluded that the Appellate Division's rejection of Hemstreet's ineffective assistance of counsel claim was an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1) and that Hemstreet was entitled to habeas corpus relief. The state respondent subsequently appealed.

DISCUSSION

When considering on appeal a district court's grant of a habeas petition, we review de novo the court's legal conclusions and review its factual findings for clear error. Anderson v. Miller, 346 F.3d 315, 324 (2d Cir.2003). Here, because the state court coram nobis decision did not include any factual analysis, the district court was not required to give deference to state court factual findings as is typically required. See Channer v. Brooks, 320 F.3d 188, 195 (2d Cir.2003) (per curiam) ("[W]here a state court does not resolve a question of fact, no presumption of correctness can possibly attach with respect to that issue."). We therefore must determine whether the district court's determinations of fact were clearly erroneous, such that we are left with "the definite and firm conviction that a mistake has been committed." Ortega v. Duncan, 333 F.3d 102, 106-07 (2d Cir.2003) (internal quotation omitted).

Additionally, as with all habeas petitions brought after the effective date of the Anti-Terrorism and Effective Death Penalty Act of 1996, a federal court cannot grant habeas in a case in which there was an adjudication on the merits in a state court proceeding unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (2003); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this case, the district court correctly found that the state court's denial of Hemstreet's coram nobis application was an adjudication on the merits. The parties do not dispute this finding. Our review is thus focused on whether the state court's denial rested upon an unreasonable application of Strickland, which is the relevant clearly established federal law. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001).

The test for ineffective assistance of counsel established in Strickland requires a defendant to show that counsel's performance "fell below an objective standard of reasonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." 466 U.S. at 688, 694, 104 S.Ct. 2052. This two-prong test applies to the performance of appellate counsel as well as trial counsel. Aparicio, 269 F.3d at 95 (citing Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985)). To determine that the state court applied Strickland in an unreasonable manner, we cannot simply conclude that the court's application was erroneous; rather, we must find that there was "`some increment beyond error.'" See Eze v. Senkowski, 321 F.3d 110, 124-25 (2d Cir.2003) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)).

Appellant argues that the state court's decision was consonant with Strickland because Hemstreet's appellate counsel made a reasonable strategic choice not to present an ineffective assistance of counsel claim and because Hemstreet cannot demonstrate that the outcome of his appeal would have been different if the claim had been raised. Appellant also argues that trial counsel's performance was effective because...