Missing alibi witnesses not enough to win ineffective assistance claim in federal court

It's time for a habeas corpus quiz. A criminal defendant claims on appeal that, in violation of the Sixth Amendment, he was denied effective assistance of trial counsel who did not take the time to check out or interview seven of his nine alibi witnesses who in some form or another claimed that the defendant was in Florida when the victim was murdered in New York City. Does he have a real habeas claim?

The case is Rosario v. Ercole, decided on April 12. The prosecutor claimed that the victim was shot and killed by Rosario on the street in the presence of two eyewitnesses. His first lawyer got money from the court to hire an investigator to check out Rosario's alibi witnesses who lived in Florida. This attorney testified at a subsequent hearing on Rosario's post-trial motion that she did not have the investigator travel to Florida to search them out and she admitted there was no strategic reason behind that choice. When that lawyer was replaced by new counsel, the new attorney mistakenly thought that the court had denied that request for alibi money, though he did try to contact the alibi witnesses by phone (and could not reach them). Despite this negligence, a state trial judge rejected Rosario's ineffective assistance claim. The Court of Appeals (Wesley and Cabranes)affirms, over a lengthy dissent from Judge Straub.

On the face of it, Rosario has a great ineffective assistance claim and should win the habeas corpus petition in federal court. But two factors work against that result. First, a state judge heard extensive evidence, including testimony from the seven alibi witnesses, and decided in the final analysis that Rosario's representation was good enough. Second, under the 1996 habeas corpus law, state courts get the benefit of the doubt once these motions reach federal court. The inmate has to show that the state court unreasonably applied settled Supreme Court precedent in resolving the constitutional issues raised by the habeas corpus petition. So that even if the state court got it wrong, it has to get it really wrong for the inmate to get that second bite at the apple in federal court.

The state judge did say that, in terms of credibility, the two alibi witnesses who testified for Rosario at his criminal trial were the best ones for Rosado, and that the ones whom his lawyers did not round up had various problems with their testimony which would have been largely cumulative in any event. The Second Circuit finds that the state judge did not unreasonably apply the Supreme Court's legal standard governing ineffective assistance claims.

In a 40+ page dissent, Judge Straub lets the majority have it. "This appeal presents an extraordinarily troubling set of circumstances," he writes, before summarizing the record and attacking Rosario's criminal lawyers for neglecting to try to prove his innocence through no less than seven additional alibi witnesses. This is especially galling, Judge Straub suggests, because the affirmative evidence of Rosado's guilt was weak, and the alibi witnesses in Florida could have made the difference at trial. He writes, "there is a reasonable probability that the jury's verdict would have been different" had these alibi witnesses turned up at trial. He adds, "there exists too much alibi evidence that was not presented to the jury, and too little evidence of guilt, to now have any confidence in the jury's verdict."