Rosario v. Ercole

• Decision Date: 12 April 2010
• Docket Number: Docket No. 08-5521-pr.
• Citation: 601 F.3d 118
• Parties: Richard ROSARIO, Petitioner-Appellant, v. Supt. Robert ERCOLE, Green Haven Correctional Facility, Attorney General Eliot Spitzer, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

601 F.3d 118

Richard ROSARIO, Petitioner-Appellant, v. Supt. Robert ERCOLE, Green Haven Correctional Facility, Attorney General Eliot Spitzer, Respondents-Appellees.

Docket No. 08-5521-pr.

United States Court of Appeals, Second Circuit.

Argued: November 19, 2009.

Decided: April 12, 2010.

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Jodi K. Miller, Morrison & Foerster, LLP, New York, N.Y. (Carl H. Loewenson, Morrison & Foerster, LLP, New York, NY, and Jin Hee Lee, NAACP Defense and Education Fund, Inc., on the brief), for Petitioner-Appellant.

Joseph N. Ferdenzi, Assistant District Attorney, Bronx, N.Y. (Christopher J. Blira-Koessler, Assistant District Attorney, Bronx, NY, for Robert T. Johnson, District Attorney, Bronx County), for Respondents-Appellees.

Before: CABRANES, STRAUB, WESLEY, Circuit Judges.

WESLEY, Circuit Judge:

This case requires us to examine New York law and analyze one sentence in a New York Court of Appeals opinion that has troubled our circuit since its publication.

Background

On June 19, 1996, George Collazo was shot and killed in the Bronx while walking with his friend Michael Sanchez. The daytime shooting followed an argument sparked by Collazo's racial epithet to two men as he and Sanchez passed them. Sanchez later identified appellant Richard Rosario as Collazo's assailant. Robert Davis, a porter working at a nearby building, witnessed the murder and also identified Rosario as the shooter. A third eyewitness was also present, but did not identify Rosario as a participant in the crime.

Rosario was arrested for the murder on July 1, 1996, after he voluntarily returned to New York from Florida. From the time of his arrest, Rosario claimed he was in Florida when Collazo was shot. Rosario provided the police with a statement, maintained his innocence, and listed the names of thirteen people who could corroborate his alibi.

Before Rosario's trial began, he was assigned Joyce Hartsfield as counsel. Hartsfield brought an application before the court requesting funds for a private investigator to travel to Florida and interview the potential alibi witnesses. The court granted the application. Hartsfield was eventually replaced as counsel by Steven Kaiser in February of 1998. Kaiser had a mistaken belief that the application for investigation fees had been denied. Kaiser did not make a request for fees; no investigation of alibi witnesses was done in Florida.

During the trial, the prosecution called Sanchez and Porter, who identified Rosario as the shooter, and the third eyewitness, who failed to identify Rosario. The defense presented two alibi witnesses — John Torres, a friend of Rosario, and Jenine Seda, John Torres' fiancée. Both testified that Rosario was living with them in Florida when the murder occurred. They remembered the date because their first child was born on June 20th, a day after the murder.

Rosario took the stand in his own defense and testified that he was in Florida through June 30, 1996. Rosario stated he lived with a woman named Shannon Beane from February through April of 1996. The prosecution rebutted this assertion with Rosario's Florida arrest record, which indicated that he was arrested in March of 1996 and imprisoned until April of that year. The jury convicted Rosario of second degree murder, and the court sentenced him to 25 years to life.

After Rosario's unsuccessful direct appeal of his conviction, see People v. Rosario, 288 A.D.2d 142, 733 N.Y.S.2d 405 (1st Dep't 2001), leave denied 97 N.Y.2d 760, 742 N.Y.S.2d 621, 769 N.E.2d 367 (2002), he filed a motion to vacate his conviction under Section 440.10(1)¹ of the New York Criminal Procedure Law on the grounds that he was deprived effective assistance of counsel at trial. The Bronx County Supreme Court held a hearing, at which Rosario's attorneys (Hartsfield and Kaiser), the private investigator, and seven alibi witnesses testified. Hartsfield testified that she did not pursue documentary records to support Rosario's alibi defense, including records from Western Union that were subsequently destroyed and a police field report detailing Rosario's stop by Florida police on May 30, 1996. She also testified that, though she retained a private investigator and received funding from the court to send the investigator to Florida to investigate the alibi witnesses, she did not instruct the private investigator to do so. She conceded there was no strategic reason behind that choice.

Kaiser, for his part, stated that he did not know where he got the misimpression that the court had denied investigatory funds. He testified that he did attempt to locate or contact alibi witnesses in Florida, working from New York alone. When asked if the two alibi witnesses he called were the best witnesses, he replied "they were the only two," and he would have preferred to call additional alibi witnesses.

Jesse Franklin, the private investigator, testified that she had a meeting with Rosario where he provided her with a list of names for alibi witnesses. She attempted to reach all the people on the list via telephone, though it was difficult to do so because many of them had moved. Franklin raised these difficulties with Hartsfield, who instructed her to draft an affidavit detailing her difficulties for an application to the court for additional investigatory funds to send Franklin to Florida. She believed traveling to Florida was necessary to investigate properly Rosario's alibi. She never heard from Hartsfield again about the application and assumed that it had been denied. Despite not traveling to Florida, Franklin did manage to contact two of the witnesses on the list, Fernando and Robert Torres, both of whom told Franklin that they had seen Rosario in Florida in late June of 1996. Franklin did not contact those men again. However, Franklin did later contact the two witnesses who were actually called at trial, Jenine Seda and John Torres, and was told by John Torres that he could provide the names of other alibi witnesses. Franklin tried unsuccessfully to telephone other witnesses that Rosario had named.

At the end of the hearing, the state court concluded that Hartsfield and Kaiser had provided Rosario with "meaningful representation" under New York law. The court detailed the testimony of each witness, and concluded that the two witnesses presented at trial were the "most credible among the possible alibi witnesses." Rosario v. Ercole, 582 F.Supp.2d 541, 550 (S.D.N.Y.2008). The court also determined that the testimony of several of the proffered alibi witnesses could have undermined Rosario's alibi defense in the eyes of the jury.

The state court noted that Rosario's right to effective assistance of counsel was guaranteed by both the federal and state constitutions. The court contrasted the federal standard set forth in Strickland with the New York standard employed under the state constitution. After a lengthy analysis under the New York constitutional standard, the court concluded that Rosario had received "meaningful representation" as required by New York's constitution. The court also concluded that the government's case was "strong"; that the prospective alibi witnesses "were, for the most part, questionable and certainly not as persuasive as the two witnesses who did testify"; and that the verdict was "unimpeached, and `amply supported by the evidence.'"²

Rosario filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York (Castel, J.). Rosario v. Ercole, 582 F.Supp.2d 541 (S.D.N.Y.2008). The district court requested a report and recommendation from a magistrate judge (Pitman, M.J.). Id. at 545. The magistrate judge and the district court concluded that counsels' performance was in fact deficient under Strickland. Id. at 551. However, both determined that the state court's decision to deny Rosario's motion to vacate was not an unreasonable application of, nor contrary to, clearly established federal law. Id. at 552-53. This appeal followed.

Discussion

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may only grant a writ of habeas corpus for a claim that has been adjudicated on the merits by a state court if the adjudication of the claim:

(1) 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; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Rosario argues that the state court decision denying his claim for ineffective assistance of counsel was both an unreasonable application of, and contrary to, the clearly established federal standard under the first subsection of § 2254(d). Because the state court adjudicated the merits of his claim, Rosario must prove that the state court either identified the federal standard for ineffective assistance but applied that standard in an objectively unreasonably way, or that the state applied a rule that contradicts the federal standard. Lockyer v. Andrade, 538 U.S. 63, 73, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Williams v. Taylor, 529 U.S. 362, 387-89, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). We review the district court's denial of the writ de novo. Jones v. West, 555 F.3d 90, 95 (2d Cir.2009).

Rosario argues that the state court ran afoul of federal law when it concluded that he had received effective representation. In Rosario's view, counsels' failure to investigate Rosario's alibi witnesses and documentary evidence was a violation of his constitutional right to the effective assistance of counsel, and any conclusion otherwise misapprehends clearly established law.

In Williams v. Taylor, the Supreme Court determined that Strickland v. Washington, the seminal case defining the contours of the right to effective...