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August 9, 2002


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Petitioner Robert Bohan ("Bohan") was convicted on July 13, 1995, in New York State Supreme Court, New York County (the "Trial Court") for murder in the second degree. On June 7, 2000, Bohan filed a petition for a writ of habeas corpus in this Court, pursuant to 28 U.S.C. § 2254 ("§ 2254"), asserting, inter alia, that: (1) there was insufficient evidence to sustain his conviction; (2) the Trial Court's preclusion of testimony from an alibi witness violated his rights under the Compulsory Process Clause of the Sixth Amendment; (3) he was deprived of his right to be present at all material stages of the trial; (4) he was denied a fair trial due to prosecutorial misconduct; (5) he was denied effective assistance of counsel at trial; and (6) the Trial Court violated his rights under the Fifth and Fourteenth Amendments by imposing the maximum sentence for his conviction. The Court referred the case to Magistrate Judge James C. Francis IV and on December 28, 2001, he issued a Report and Recommendation (the "Report"), recommending that the writ be granted because Bohan's trial counsel was ineffective and because the preclusion of Bohan's alibi witness violated his Sixth Amendment right to present a defense. The Report is attached and incorporated hereto. For the reasons discussed below, the Court fully adopts the Report and Recommendation of Magistrate Judge Francis and grants Bohan's writ of habeas corpus.


On January 12, 1993, at approximately 10:25 p.m., Joseph Alvarez ("Alvarez") was selling crack cocaine under a streetlight in front of 448 West 167th Street in Manhattan when a man wearing a hood shot him twice in the chest and back, killing him. Bohan was indicted for murder in connection with this incident. At trial, the prosecution argued that Bohan committed the murder on account of a dispute that Bohan and his brother, Nicholas, had with Alvarez and an associate of Alvarez named Junior. The dispute had arisen six months earlier during an incident in which Nicholas Bohan punched Junior and Junior pulled out a gun and fired in response. (Tr. at 66.)*fn1 A prosecution witness named Jamal Williams ("Williams"), who had been a long-time friend of Bohan's, testified that he had witnessed the dispute. After the incident, Williams attended a number of meetings in a nearby McDonald's restaurant with Bohan and Alvarez. According to Williams, in one of the meetings, Bohan threatened to "get" both Williams and Alvarez if they did not help him find Junior. (Tr. at 71.)*fn2

Williams and another prosecution witness, Michael Jenkins, further testified that they saw Bohan murder Alvarez on January 12, 1993. Williams said that he was selling crack cocaine with Alvarez and another associate named Manny Martinez ("Martinez") under a street light when Bohan approached, drew a gun, and shot Alvarez. (Tr. at 74.) Williams stated that, before the shooting, he looked straight at Bohan's face from a distance of approximately three feet. (Tr. at 83.) However, Williams also testified that he was with Martinez in the hallway of a nearby building just before Alvarez was shot. (Tr. at 84, 123.) The day after the shooting, Williams identified Bohan in a police line-up as the shooter (Tr. at 77), but during the trial Williams pointed to Bohan's brother when asked to identify the assailant. (Tr. at 66.) Williams also stated that he was scared to testify because he believed that Bohan had "people on the outside." (Tr. at 113.)

Jenkins testified that on the night of the murder, Bohan approached Alvarez, coming within fifteen to twenty feet of Jenkins, and fired three shots. (Tr. at 187.) Unlike Williams, Jenkins identified Bohan in the courtroom as the person who shot Alvarez. Shawn Criss ("Criss"), the Government's third eyewitness from the murder scene, testified that he was six to seven feet away from Alvarez when the shooting occurred. According to Jenkins, it was dark and he "didn't really look" at the shooter. (Tr. at 139.) The only description he could provide was that the assailant was light-skinned, "Spanish looking" and wearing a sweatshirt with his hood up. (Tr. at 141-42.)

In defense, Bohan called Carmen Rodriguez ("C. Rodriguez"), who was incarcerated at Rikers Island ("Rikers"), to testify. Because C. Rodriguez had tested positive for tuberculosis, the Trial Court took her testimony via video from a room at Rikers and presented a recording of the testimony to the jury. (Tr. 217, 314.) Bohan was present during her testimony but seated in an adjacent room that contained a glass partition through which he could see the interview.

Prior to the trial, Bohan's attorney, Earl Rawlins ("Rawlins") had asked the Government to interview C. Rodriguez, with the hope that she would disclose information that would persuade the Government to dismiss the charges against Bohan. Assistant District Attorney Stuart Silberg ("Silberg"), did meet with C. Rodriguez at that time and she told him that Bohan did not shoot Alvarez. (Tr. at 25.) However, several days later C. Rodriguez met again with Silberg and Police Detective Michael Vasquez ("Detective Vasquez") and told them that she had lied to Silberg because Bohan's father had promised to take care of her if she testified that Bohan was not the shooter. (Tr. at 432-33, 435-36.) C. Rodriguez then also stated that on the night of the murder, she was talking to Alvarez when Bohan approached and shot him. During her meeting with Silberg and Detective Vasquez, C. Rodriguez also signed a statement indicating that Bohan was the shooter. (Tr. at 433-34.) However, in her trial testimony, C. Rodriguez stated that she neither signed the statement nor told anyone that Bohan had shot Alvarez. (Tr. at 324-25.)

After the Government presented its case-in-chief, Rawlins informed the Trial Court and the prosecution that he intended to call three alibi witnesses: Bohan's grandmother, Julia Feci ("Feci"), and two of Bohan's friends, Roberto Cruz ("Cruz") and Bernardo Rodriguez ("B. Rodriguez"). Although Silberg had requested, long before the trial commenced, that Rawlins provide notice of any alibi witnesses he intended to call, Rawlins had failed to do so, as required by section 250.20 of the New York Criminal Procedure Law ("CPL § 250.20").*fn3 Silberg consented to both Feci and Cruz testifying at trial because Feci had appeared before the grand jury and had mentioned Cruz's name, thus alerting the prosecution that these two people might be called by the defense. In contrast, Silberg claimed that he had never known about B. Rodriguez and objected to his testifying at trial. (Tr. at 222-23, 302-03.) Feci testified that, on the night of the murder, Bohan and several of his friends, including Cruz, were in her apartment at 640 West 171st Street. She was upset with them because they had damaged her furniture. At one point, she testified that Cruz said goodnight at 10:15 p.m. (Tr. at 232). According to Feci, soon thereafter, Bohan entered her room, apologized for breaking a bed, and watched a television program with her until 11 p.m. (Tr. at 232-33, 246.) Later in her testimony, she said that Cruz left at 10:30 (Tr. at 233, 243) and that Bohan came to her room at 10:45 p.m. and stayed until 11 p.m. (Tr. at 244-47.)

Cruz testified that, on the night of the murder, he was in the apartment with Bohan, Bohan's brother Nicholas, and two other friends named Angel Zapata ("Zapata") and Jason Pena ("Pena"). According to Cruz, soon after 10 p.m., Feci threw him and the other visitors out of her apartment because they had broken a bed. He testified that he said goodnight to Feci at 10:05 p.m. and left ten minutes later. He arrived at his apartment, which was across the street, at 10:30. He later testified that he was unsure of when he left Feci's apartment but he was sure that he reached his apartment by 10:30. (Tr. at 265, 269-70.)

After Cruz testified, Rawlins indicated that he intended to call B. Rodriguez. The Trial Court held a hearing outside the presence of the jury, pursuant to People v. Dawson, 50 N.Y.2d 311, 321 (1980), to allow Silberg to inquire into the reason for B. Rodriguez's failure to inform law enforcement authorities that Bohan had not committed the murder. B. Rodriguez testified that on the night of the murder, around 10:05 or 10:10 p.m., he was returning from work when he saw Cruz, Zapata, Pena and Albert Montilla ("Montilla") standing on the street in front of 640 West 171st Street. (Tr. at 283.) When he approached them, they explained that Feci had thrown them out of her apartment. At that point, which was around 10:10 or 10:15 p.m., B. Rodriguez looked up at the window of Feci's apartment and saw Bohan standing and talking to Feci. (Tr. at 285). According to B. Rodriguez, Bohan seemed upset. (Id.) He remained at that location on the street until 11:10 or 11:15 p.m. (Tr. at 284.) B. Rodriguez said he learned two days later that Bohan had been charged with killing someone. (Tr. at 287.) He testified that he did not go to the police to report what he had witnessed because he thought that Bohan had been wrongly accused and that Bohan "was going to come home in a couple of days." (Tr. at 288.)

Approximately one month after the murder, B. Rodriguez learned that the murder victim was from West 167th Street. (Tr. at 291.) He could not recall if anyone told him the victim's name. B. Rodriguez knew that Bohan had been arrested for the murder and had not come home yet. (Id.) His family told him to talk to Bohan's attorney. One of his parents told him to talk to the police and the other told him not to. (Tr. at 293.) He testified that he felt he was doing enough by talking to Bohan's attorney. (Tr. at 294.)

Soon thereafter, B. Rodriguez spoke with Rawlins and at his request B. Rodriguez wrote out a statement about what he had seen on the night of the murder. On March 10, 1994, B. Rodriguez faxed the statement to Rawlins. Although Rawlins was required to provide the written statement to Silberg before trial, Rawlins mistakenly asserted that Bohan's previous attorney had received the statement from B. Rodriguez and that he was unaware that Silberg had not received it.*fn4 (Tr. at 297.) Silberg asserted that the Trial Court should preclude B. Rodriguez from testifying at trial not only because "defense counsel did not comply with the alibi statute," but also because of "the prejudice . . . to the people because we had not had enough time to investigate Mr. Rodriguez." (Tr. at 357.) Silberg further asserted that Bohan would not be prejudiced by the exclusion of B. Rodriguez because the Government had consented to the testimony of two other alibi witnesses, namely Feci and Cruz. (Tr. at 358.) The Trial Court precluded B. Rodriguez's testimony, stating:

I'm convinced . . . [that] this is a violation of the alibi statute and something improper has occurred here. The point of these notices is that you have a right to put on a defense, but [the] People have a right to prevent perjurious testimony from being presented to the jury and the way they can do that is if they have an opportunity to investigate prior — we are at the end of the trial. . . . No good cause has been given by you for failure to serve an alibi notice, let alone come up with an entirely new witness who your alibi witness in the grand jury did not mention.

(Tr. at 359-60.) Later, Rawlins claimed that B. Rodriguez had in fact come to his office in 1994, but since he was unfamiliar with B. Rodriguez's name at the time, he decided not to do anything with the statement until other alibi witnesses, with whom he was familiar, came forward. Rawlins claimed that he had forgotten about the statement until the morning of the Dawson hearing, when he happened to be going through Bohan's file because another alibi witness had called him. (Tr. at 345.)

At the conclusion of the trial on July 13, 1995, the jury found Bohan guilty of murder in the second degree. The Trial Court later sentenced him to the maximum term of imprisonment, which was twenty five years to life. On March 19, 1998, Joel Brenner, Bohan's current attorney, appealed Bohan's conviction to the New York Appellate Division, First Department (the "Appellate Division"), asserting, inter alia, that Bohan received ineffective assistance of counsel and that the Trial Court's preclusion of B. Rodriguez violated Bohan's right under both the New York Constitution and the Sixth Amendment of the United States Constitution to present a defense.

In a Memorandum Decision, dated January 12, 1999, the Appellate Division rejected all of Bohan's claims. Regarding the alleged ineffective assistance of counsel, the Appellate Division stated that "defendant received meaningful representation. Counsel's alleged errors could not have deprived defendant of a fair trial." People v. Bohan, 684 N.Y.S.2d 514, 515 (App. Div. 1st Dep't 1999) (citation omitted). Regarding the Trial Court's preclusion of B. Rodriguez's testimony, the Appellate Division stated that "[t]he trial court properly exercised its discretion in precluding defendant from calling a third alibi witness, since the defense concededly failed to give proper alibi notice pursuant to [CPL § 250.20] and since the People were deprived of the opportunity to conduct a proper investigation regarding any of the alibi testimony." Id. Bohan appealed the Appellate Division's decision, and on March 15, 1999, the New York Court of Appeals denied Bohan's application for leave to appeal. See People v. Bohan, 711 N.E.2d 647 (N.Y. 1999).

Bohan filed the instant petition on June 7, 2000. Magistrate Judge Francis held hearings on August 2 and October 1, 2001 to "determine whether Bernardo Rodriguez's testimony would have been cumulative had he been permitted to testify at trial and to explore the circumstances of Mr. Rawlins'[s] failure to serve any alibi notice." (Report at 20.) At the August 2, 2001 hearing, Bohan testified that he told Rawlins in November or early December of 1993 that he had an alibi, more than one year before his trial. (Transcript of August 2, 2002 Evidentiary Hearing before Magistrate Judge James C. Francis IV ("First Fed."), at 12.) Bohan told Rawlins that his grandmother, Cruz, Pena, Zapata, Montilla and B. Rodriguez were all alibi witnesses. (First Fed. at 13.) According to Bohan, after his arrest, B. Rodriguez told Feci that he was "downstairs" on the night of the murder. (First Fed. at 13.) When Bohan learned of this from Feci, he told Rawlins about B. Rodriguez. Rawlins asked Bohan for B. Rodriguez's number.

Before the trial, Bohan asked Rawlins if he was going to call B. Rodriguez. Rawlins replied that "he had a witness" from the scene of the murder who would testify that the shooter was not Bohan. (First Fed. at 20.)*fn5 As discussed above, Rawlins failed to serve the prosecution with an alibi notice as required under New York law. After Bohan was convicted, Rawlins told Bohan that he should appeal on the grounds that the preclusion of B. Rodriguez as an alibi witness was improper. (First Fed. at 14.) According to Bohan, Rawlins told him that "you got a big issue on appeal . . . because I fucked up." (First Fed. at 20.)

On cross examination, Silberg presented Bohan with the transcript from his grand jury testimony. Before the grand jury, Bohan had testified that several friends of his, including Cruz and Montilla, had stayed in his grandmother's apartment with him until 11 p.m. (First Fed. at 29.) This grand jury testimony was inconsistent with B. Rodriguez's March 1994 statement and his testimony in state court and at the federal hearing that when he came to the area in front of 640 West 171st Street, he saw a number of friends on the street, including Cruz and Montilla. At the evidentiary hearing before the Magistrate Judge, Bohan claimed that this inconsistency was due to a mistake in the grand jury minutes, as to the time when he testified that Cruz and Montilla were in the apartment. (First Fed. at 30.) Bohan asserted that, before the grand jury, he actually testified that his friends left the apartment around 10 p.m. and the grand jury minutes incorrectly stated 11 p.m. (First Fed. at 28-29.)

After Bohan testified, his counsel called Silberg to testify about information he received from Rawlins before trial. Silberg testified that he knew, from the grand jury minutes, of the potential that Bohan would put on an alibi defense. (First Fed. at 40.) When asked how he became aware of B. Rodriguez, Silberg testified that, on the first day of the trial, as he and Rawlins "were waiting for the jury panel to assemble," Rawlins indicated that: "he had some witnesses to call . . ., he believed some of those witnesses were alibi witnesses," and that although Silberg was "aware of some of those witnesses because they were mentioned in the grand jury, . . . there might be other witnesses as well." (First Fed. at 40-41.) Silberg further testified, "I'm not sure if [Rawlins] actually told me [B.] Rodriguez's name at that time." (First Fed. at 41.) Later in the hearing, Silberg testified that when Rawlins told him about the potential alibi witnesses off the record, he was "troubled by learning about Mr. Rodriguez." (First Fed. at 48.)*fn6

Silberg testified that he told Rawlins that he was not happy that he had not received an alibi notice and that they would have to discuss the matter on the record with the judge. (Id.) He also stated that he was less concerned about the alibi witnesses whom he knew about and was very concerned about the witnesses he had never heard about. (Id.) Silberg already had information on some of the potential alibi witnesses, such as Pena, Zapata, Montilla and Cruz. After the murder, they had been interviewed by Detective Vasquez and had signed statements. The statement of each of these witnesses indicated that, except for Cruz, they were with Bohan in his grandmother's apartment at the time of the murder. (First Fed. at 43.)

According to Silberg, had he known about B. Rodriguez earlier, he would have "checked into it or, if nothing else, at least think about it and factor it into my case . . . ." (Id. at 42.) When Silberg learned about B. Rodriguez, he made inquiries and discovered that he had no criminal record.*fn7 (Id. at 45.) Silberg also spoke with a detective in the homicide investigations unit who was able provide Silberg with some information about B. Rodriguez and a relative of B. Rodriguez's who was suspected of having connections with a narcotics dealer. (Id. at 46.)

On October 1, 2002, the Magistrate Judge conducted a second hearing to allow Rawlins to testify. Rawlins indicated that he never provided Silberg with notice for any of the alibi witnesses that he called at trial, although they discussed the issue. (Transcript of October, 2002 Evidentiary Hearing before Magistrate Judge James C. Francis IV ("Second Fed."), at 3-4.) When asked why he did not comply with the notice requirement of the alibi statute, Rawlins stated: "I did not recall having specific information prior to the time that I had reviewed the file, just before the trial, and found a specific worthwhile letter in there that would be useful to have testimony, alibi testimony." (Second Fed. at 4.) According to Rawlins, once he became aware of B. Rodriguez's letter, he told Silberg that he had alibi witnesses to call. (Id.) On cross examination, Silberg asked Rawlins whether he was wary about providing information about B. Rodriguez because he was afraid that it "wouldn't work out well if [Silberg] had an opportunity to speak with Mr. Rodriguez." (Second Fed. at 7.) Rawlins replied, "no it's the contrary — I would be more than happy to give you that letter so you could check it out." (Id.) Silberg also asked Rawlins if he told Bohan that he "fucked up with the alibi in the case." (Second Fed. at 10.) Although Rawlins could not specifically recall whether he told Bohan that he had made a mistake, he testified that he told Bohan that his alibi defense presented an appealable issue. (Id.) During the hearing, Rawlins conceded that his handling of Bohan's alibi defense "certainly was a mistake." (Id.)

On December 28, 2001, the Magistrate Judge issued a seventy-four page Report and Recommendation, which carefully analyzed each of the grounds that Bohan raised in his petition. The Report concludes that: (1) there was sufficient evidence to support Bohan's conviction; (2) his absence from the examination room during the questioning of C. Rodriguez did not affect the fairness of his trial and was, at most, harmless error; (3) the Trial Court's rulings on the admissibility of statements by witnesses that they were afraid did not violate Bohan's constitutional rights; (4) the prosecutor did not engage in misconduct during his summation; and (5) the trial judge did not violate Bohan's Fifth Amendment rights when she sentenced him. However, on Bohan's two remaining claims, the Magistrate Judge concluded that: (1) the Trial Court's preclusion of alibi testimony violated the Compulsory Process clause of the Sixth Amendment of the United States Constitution; and (2) Rawlins's failure to comply with the alibi notice statute deprived Bohan of effective assistance of counsel. As a result, the Magistrate Judge recommended that the writ be granted. On January 4, 2002, Bohan filed objections to the Report, asserting, among other things, that the Report: (1) fails to consider "internal inconsistencies" in certain testimony before concluding that there was sufficient evidence to sustain Bohan's conviction; and (2) incorrectly concludes that Bohan's exclusion from the room where C. Rodriguez testified was subject to a harmless error analysis. On January 30, 2002, respondent Robert Kuhlmann, Superintendent of the Sullivan Correctional Facility (the "State") filed objections to the Report, asserting, inter alia, that: (1) the Report does not accurately convey the import of the trial evidence; and (2) Bohan is not entitled to habeas corpus relief based on the preclusion of B. Rodriguez's testimony or on the alleged ineffective assistance of counsel.



1. The Report and Recommendation

The Federal Magistrate Act provides that a district judge may "designate a magistrate to conduct hearings, including evidentiary hearings" in order to "submit to a judge of the court proposed findings of fact and recommendations for the disposition . . . of applications for post-trial relief made by individuals convicted of criminal offenses . . . ." 28 U.S.C. § 636 (b)(1)(B) (2000). In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636 (b)(1) (2000); see Fed. R. Civ. P. 72(b). Any party may object to the Magistrate Judge's findings and recommendations. See id. If an objection is timely filed, as is the case here, the Court is bound to make a "de novo determination of those portions of the report . . . or recommendations to which objection is made." Id. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Having conducted a careful de novo review of the Magistrate Judge's well-reasoned Report, and of the objections by Bohan and the State, the Court fully adopts the findings and recommendation of the Report. The majority of issues raised by Bohan are meritless and the Court declines to add to the findings of the Report.*fn8 However, because Bohan's two meritorious claims present significant issues, the Court addresses them below.

2. Exhaustion

A federal court may entertain a petition for a writ of habeas corpus only where the petitioner has first "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A) (2000). See Picard v. Connor, 404 U.S. 270 (1971); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982). This requirement mandates a habeas petitioner to have "fairly presented" in state court the claims that are raised in the habeas petition. Picard, 404 U.S. at 275. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999), cert. denied, 530 U.S. 1264 (2000); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991).


The Court notes that, because Bohan's petition was filed after the effective date of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), this action is governed by the habeas statute as amended. See Williams v. Taylor, 529 U.S. 362 (2000); 28 U.S.C. § 2254. Pursuant to the various subsections of § 2254, this Court's review is guided by certain restrictions on the nature and extent of review that a federal court can conduct in considering a habeas petition.

In a habeas corpus proceeding, "a determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254 (e)(1) (2000). Petitioner, however, may rebut the presumption by clear and convincing evidence. See id. Consequently, this Court presumes that the factual findings of the New York courts are correct and will not set aside those findings unless "the material facts were not adequately developed at the State court hearing" or the court's factual determinations are not fairly supported by the record. Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999).

4. AEDPA's "Contrary to" and "Unreasonable Application" Prongs

As amended, Section 2254(d) of the AEDPA provides that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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 . . . .

A state court's decision may be held contrary to clearly established Supreme Court precedent in either of two occasions: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 405-06. Regarding the "unreasonable application" prong of § 2254(d)(1), the Court held that a state court decision involves an unreasonable application of its precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 407. The Court further commented that:

[A]n unreasonable application of federal law is different from an incorrect application of federal law. . . . Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.

Id. at 411. The relevant inquiry under this clause, therefore, is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409.

The Court further addressed the meaning of the phrase "clearly established Federal law." See id. at 412. The phrase restricts the source of clearly established law exclusively to the Supreme Court's jurisprudence — "the holdings, as opposed to dicta, of [the] Court's decisions as of the time of the relevant state-court decision." See id. Accordingly, this Court, sitting as a federal habeas court in reviewing Bohan's petition, is guided by and restricted to applicable United States Supreme Court precedent. Because this Court concludes that the New York state courts adjudicated Bohan's claims on the merits, the Court finds that Williams does apply to this case.


1. The Sixth Amendment Right to Present a Defense

Under the Sixth Amendment to the United States Constitution, every criminal defendant has "the right to . . . have compulsory process for obtaining witnesses in his favor." U.S. Const. Amend. VI. Pursuant to the Sixth Amendment, criminal defendants have a right to "the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before the jury evidence that might influence the determination of guilt." Taylor v. Illinois, 484 U.S. 400, 408 (1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987)). Every person accused of a crime has a fundamental right to present witnesses in his own defense. See id. (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)). Such a right is an "essential attribute of the adversary system itself." Id. The right to compel a witness's presence in the courtroom could not protect the "integrity of the adversary process if it did not embrace the right to have the witness's testimony heard by the trier of fact." Id. at 409. It is well-settled that an accused person's right to present witnesses in his defense is fundamental:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Id. (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).

However, this right is not unlimited. See id. at 410; see also Noble v. Kelly, 89 F. Supp.2d 443, 454 (2000), aff'd, 246 F.3d 93 (2d Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 197 (2001). For example, a court may limit the presentation of evidence if it is concerned about "harassment, prejudice, confusion of the issues, the witness's safety or interrogation that is repetitive or only marginally relevant." Noble, 89 F. Supp.2d at 454 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). As the Supreme Court stated in Taylor:

The principle that undergirds the defendant's right to present exculpatory evidence is also the source of essential limitations on the right. The adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments to provide each party with a fair opportunity to assemble and submit evidence to contradict or explain the opponent's case. . . . The State's interest in the orderly conduct of a criminal trial is sufficient to justify the imposition and enforcement of firm, though not always inflexible, rules relating to the identification and presentation of evidence.

484 U.S. at 410-11.

In a criminal trial, the state clearly has a very strong interest in the orderly presentation of evidence that will assist a trier of fact to ascertain the truth. Such an interest includes "protecting itself against an eleventh-hour defense." Id. at 411. To achieve this end, New York, like many other states, has enacted an alibi-notice statute, requiring defendants to provide the prosecution with notice if they intend to pursue an alibi defense and call witnesses to this end. See CPL § 250.20. The Supreme Court has specifically approved of such a statute, as applied in a particular case in Florida:

Given the ease with which an alibi can be fabricated, the State's interest in protecting itself against an eleventh-hour defense is both obvious and legitimate. Reflecting this interest, notice-of-alibi provisions, dating at least from 1927, are now in existence in a substantial number of States. The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played.

Williams v. Florida, 399 U.S. 78, 81-81 (1970).

In the instant case, the Appellate Division rejected Bohan's claim that the Trial Court's preclusion of B. Rodriguez's testimony violated his right to compulsory process under the Sixth Amendment. In his Report, the Magistrate Judge concluded that the Appellate Division's denial of this claim was "contrary to . . . clearly established federal law," as the term is used in § 2254(d)(1). (See Report at 62.) The Report states: "By not considering `whether defense counsel had wilfully or in bad faith failed to comply with the alibi notice requirement,' the Appellate Division did not follow Supreme Court precedent as established in Taylor, 484 U.S. at 415." (Id.) (quoting Noble, 89 F. Supp.2d at 461.) The Magistrate Judge further found that even if the "unreasonable application" clause of § 2254 were controlling, "it would not alter the results." (Report at 62-63.) Furthermore, the Magistrate Judge concluded that the Trial Court's error of precluding the testimony of B. Rodriguez was not harmless.

The State makes numerous objections to the Report's findings that the Trial Court's preclusion of testimony from B. Rodriguez was constitutional error that prejudiced Bohan's defense. It asserts that: 1) the Report did not correctly apply the deferential standard of review mandated by AEDPA;*fn9 2) the Report incorrectly concluded that the state court's rejection of Bohan's Sixth Amendment claim was "contrary to" or "an unreasonable application" of the Supreme Court's opinion in Taylor 3) even if the state court did violate Bohan's constitutional rights, the Report incorrectly found that the error was prejudicial. For the reasons discussed below, the Court disagrees with each of the State's objections.

In its objections to the Report, the State asserts that "to the extent that it purported to analyze petitioner's claims under the AEDPA standard of review, the Report did not correctly apply the relevant components of that standard." (See Respondent's Objections to the Magistrate Judge's Report and Recommendation, dated January 25, 2002 (the "State's Obj."), at 14.) In support of this argument, the State contends that the "contrary to" clause of § 2254 does not apply "since the state court decision did "not explicitly refer to either the federal claim or the relevant federal caselaw, "the federal courts are not in a position to know what the Appellate Division did or did not consider in rejecting that claim." (State's Obj. at 14 (quoting Sellan, 261 F.3d at 311).) This argument is misplaced. Sellan does not support the State's proposition that the decision of a state court is immune to being "contrary to" established federal law simply because the state court failed to articulate its analysis. In fact, the Second Circuit held the opposite to be true. See Sellan, 261 F.3d at 312 ("We recognize that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the `unreasonable application' or `contrary to' tests. However, the absence of an explanation does not absolve us from performing the same task.").

The State also asserts that, even if the "contrary to" language in § 2254 applies to the instant case, the Magistrate Judge "did not correctly interpret and apply the relevant components of that standard." (State's Obj. at 14.) The Court disagrees. In a decision that pre-dated Taylor, the Second Circuit held that alibi testimony is so critical that it cannot be excluded notwithstanding procedural defaults, even when, as in the instant case, counsel "offered the court no reasonable explanation" for failure to comply with the state notice requirements for alibi testimony. Escalera v. Coombe, 826 F.2d 185, 188 (2d Cir. 1987) ("Escalera I"). The Supreme Court vacated Escalera I and remanded the case for reconsideration, in light of its analysis in Taylor. See Coombe v. Escalera, 484 U.S. 1054 (1988). The Second Circuit, in turn, remanded the case to the district court for further inquiry consistent with Taylor:

[The district court judge] did note in his opinion below that the attorney's "apparent bad faith — or, at least, the absence of a good excuse — [wa]s evident" in the failure properly to give notice of his intent to call [an alibi witness]. But this alone is not enough. The absence of a good excuse is not necessarily commensurate with "willful" conduct and it is not readily clear whether Escalera's attorney was, in fact, motivated by a desire to obtain a tactical advantage.

Escalera v. Coombe, 852 F.2d 45, 48 (2d Cir. 1988) (per curiam) ("Escalera II") (quoting Escalera v. Coombe, 652 F. Supp. 1316, 1324 (E.D.N.Y. 1987)) (emphasis added).

In Noble, the district court addressed a similar issue: Whether a state court's preclusion of alibi witness testimony violated a defendant's compulsory process rights under the Sixth Amendment. See Noble, 89 F. Supp.2d at 454-59. There, during the petitioner's trial in state court, his counsel had attempted to call an alibi witness, whose name he had failed to disclose to the prosecution in a timely manner, as required by CPL § 250.20. See id. at 448. The trial court granted the prosecution's application to exclude the alibi testimony, due to defense counsel's failure to comply with CPL § 250.20. See id. In doing so, the trial court considered and rejected defense counsel's assertion that preclusion was unnecessary because a short adjournment would provide the prosecution with sufficient time to prepare for the unnoticed alibi witness. See id. at 449.

On habeas review, the federal district court held that the trial court's failure to inquire into the willfulness of defense counsel's conduct violated the defendant's Compulsory Process rights under the Sixth Amendment. See id. at 457. ("[W]here, as is the case here, the record discloses no indication that the trial court ever considered whether defense counsel's failure to comply with the notice requirement was designed to frustrate the truth-seeking function of the trial, we conclude that the court's exclusion of the alibi evidence violated the defendant's rights under the Compulsory Process Clause."). The district court concluded that this finding was "reinforced by the minimal degree of prejudice that an alternative sanction would have caused the prosecution." Id. More specifically, the court found that: (1) during the state trial in question, "unlike the typical alibi defense," the prosecution had a "wealth of evidence about the place where the defendant claimed to have been and about other witnesses who might contradict that testimony;" (2) since the alibi witness in question was "proffered after the close of the prosecution's case," no prosecution witnesses would have been inconvenienced by a brief delay; and (3) had the trial court allowed the alibi witness to testify, but granted the prosecution additional time to prepare a cross-examination or to adduce rebuttal testimony, "the record from which the jury would be asked to render a verdict would have been more complete and accurate, not less." Id.

The Second Circuit affirmed, stating that "under the circumstances of this case, the state trial court could have used less onerous sanctions (such as an adjournment) to minimize any prejudice to the prosecution, and that a finding of willfulness was therefore required to justify the exclusion of [the precluded witness's] testimony." Noble, 246 F.3d at 100 (citing Noble, 89 F. Supp.2d at 457) (emphasis added). However, the Second Circuit explicitly declined to address the level of willfulness that would provide a trial court with sufficient grounds to properly exclude alibi testimony:

We [] need not decide whether, and to what extent, a finding of willfulness is required in every case. For purposes of the present case, we need only conclude that where prejudice to the prosecution can be minimized with relative ease, a trial court's exclusion of alibi testimony must be supported by a finding of some degree of willfulness in defense counsel's violation of the applicable discovery rules.

Noble, 246 F.3d at 100 n. 3. Accordingly, under the reasoning of Noble, if the Trial Court in the instant case could have used less onerous sanctions to minimize any prejudice to the prosecution, some finding of willfulness was required to justify the exclusion of the testimony of B. Rodriguez.*fn10

Applying this standard, the Magistrate Judge found that: (1) "the trial court could have minimized any prejudice to the prosecution with a short adjournment;" (2) "the prosecution in this case had a wealth of evidence about the place where the defendant claimed to have been and about other witnesses who might contradict Mr. Rodriguez's testimony;" and (3) "Mr. Rodriguez `was proffered as a witness after the close of the prosecution's case and so no prosecution witnesses would have been inconvenienced by a short delay.'" (Report at 58 (quoting Noble, F. Supp.2d at 457).) The Magistrate Judge also found that there was no evidence that Rawlins's failure to "give notice of Bernardo Rodriguez was willful or motivated by a desire to gain a tactical advantage." (Report at 53.) The Court agrees. Crediting Bohan's statement about Rawlins's explanation for failing to provide notice concerning B. Rodriguez's alibi testimony, and Rawlins's own apparently equivocal reasons, the record convincingly supports a finding that Rawlins simply mishandled the matter as opposed to a finding that he sought to achieve some tactical advantage.

The State contends that the Report's conclusion that the prejudice from the testimony of an unnoticed alibi witness could have been minimized by a short adjournment was "erroneous." (State's Obj. at 24-25.) However, in Noble the Second Circuit did not state that, under the facts of that case, a short adjournment would have eliminated all prejudice to the prosecution. It merely stated that the prejudice to the prosecution could have been minimized with relative ease. The same is true in the instant case. Although it is not entirely clear that Silberg had a "wealth of evidence" about the relevance of people loitering on the street below Feci's apartment, the Court agrees with the Report that the Trial Court could have minimized any prejudice to the prosecution with a short adjournment and that the prosecution's witnesses would not have been inconvenienced by a short delay. If the accounts of all of Bohan's alibi witnesses, including B. Rodriguez, were clearly a sham, as the State contends (see State's Obj. at 24), then impeachment of these witnesses should not have been as difficult as the State maintains. Cruz had already testified and Montilla was present during parts of the trial. (See State's Obj. at 24 n. 15.) The State could have used a short adjournment to prepare for further questioning of these two individuals.*fn11

The State also maintains that the Report is incorrect in its conclusion that neither the Trial Court nor the Appellate Division made any findings about the willfulness of Rawlins's conduct. (State's Obj. at 21 n. 13.) The Court disagrees. When the Trial Court precluded B. Rodriguez's testimony it stated: "I'm precluding this witness. It's a clear violation of the Statute. And in my discretion, you have not given me good cause why this man's name [was] not served as an alibi. . . ." (Tr. at 308.) Rawlins later tried to argue that the State was improperly reserving its objections for defense witnesses who had no criminal record. In response, the Court stated:

You are mixing apples and oranges. I'm more convinced this is a violation of the alibi statute and something improper has occurred here. The point of these notices is that you have a right to put on a defense, but [the] People have a right to prevent perjurious testimony from being presented to the jury and the way [that] they can do that is if they have an opportunity to investigate prior [to trial].

(Tr. at 359-360.) Although the Trial Court stated that it was convinced that "something improper has occurred," it made no further inquiries into the reasons for Rawlins's failure to provide "good cause" for not serving an alibi notice. See Escalera II, 852 F.2d at 48 ("The absence of a good excuse is not necessarily commensurate with willful conduct . . . .") (quotation omitted). Furthermore, by emphasizing that the "People have a right to prevent perjurious testimony from being presented to the jury," the Trial Court suggested that what it considered "improper" may have been B. Rodriguez's potential fabrication of testimony. There is simply nothing in the record to indicate that the Trial Court made any clear findings, considered or intended as such, with respect to Rawlins's willfulness, or that Rawlins's failure to comply with the notice requirements of the alibi statute was due to anything more than defense counsel's ill-preparation and blunder.

2. Harmless Error

When a defendant's constitutional rights have been violated due to trial error, habeas relief is warranted only if the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).*fn12 As noted in the Report, the Second Circuit has recently articulated the proper standard for a harmless error analysis of witness preclusion:

[W]hether the exclusion of [witnesses'] testimony violated [defendant's] right to present a defense depends upon whether "the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist." In a close case, "additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." On habeas review, trial errors are subject to lenient harmless error review. The creation of otherwise non-existent reasonable doubt satisfies the "substantial and injurious" standard [of Brecht].

Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) (quoting Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000). In his Report, the Magistrate Judge concluded that "Mr. Rodriguez's testimony places the petitioner at home during the time period unaccounted for by other witnesses, thus providing critical support to Mr. Bohan's alibi. . . ." (Report at 67.)

In its objections to this aspect of the Report, the State contends that even if the preclusion of B. Rodriguez's testimony violated Bohan's constitutional rights, contrary to the findings of the Report, any error was harmless. (See State's Obj. at 31.) In support of this position, the State essentially reiterates arguments that were thoroughly considered and rejected by the Magistrate Judge. It asserts that: (1) the Report understates the strength of testimony identifying Bohan as the murderer; (2) the Report ignores the obvious biases of the alibi witnesses; (3) B. Rodriguez's testimony would have added nothing to the credibility of other alibi witnesses; and (4) B. Rodriguez's failure to approach law enforcement authorities earlier would have drastically undermined the credibility of his testimony. (See State's Obj. at 32-33.) In spite of these objections, the Court agrees with the Report's conclusion that the preclusion of B. Rodriguez as an alibi witness was not harmless error.

As the Report notes, "[i]n his summation, the prosecutor argued that the testimony from the two alibi witnesses was not inconsistent with the prosecution's theory of the case, because neither could account for the petitioner's whereabouts from a little after 10:00 to 10:45 p.m.; thus giving him enough time to commit the murder." (Report at 66.) During summation, Silberg told the jury:

When you put the two witnesses together [Feci and Cruz] . . . what you get is too early and too late. Defense calls the grandmother and Roberto Cruz, they didn't call [Zapata], [Pena] or [Montilla], didn't call any of the other people . . . . Why aren't they calling the people with the defendant at the time of the crime?

(Tr. at 517-18.) It is somewhat disingenuous for the State to now claim that, in making this argument, the prosecutor was only trying to "refrain from a direct, frontal assault on the credibility of petitioner's 79-year old, hard-of-hearing grandmother, and on that of petitioner's long-time friend." (State's Obj. at 35.) Had the prosecutor felt that a "direct, frontal assault" of the alibi testimony would have been more effective in persuading the jury of the State's case, it is highly unlikely that he would have refrained from utilizing such a tactic. Instead, a review of the record reveals that the gap in time, highlighted by the prosecutor on summation "bore on an issue that [was] plainly critical to the jury's decision; . . . was material to the establishment of the critical fact [and was not] instead . . . cumulative; and [concerned issues] emphasized in arguments to the jury." (Report at 68 (quoting Wray v. Johnson, 202 F.3d 515, 526 (2000)).) See also Noble, 89 F. Supp.2d at 458-59. B. Rodriguez would have testified that he saw Bohan and Feci in the window of the apartment at approximately 10:10 or 10:15 and that he stayed on the street until 11:10 or 11:15. (Tr. at 284-85.) If the jury had credited his testimony, it could have potentially bolstered the testimony of Bohan's other alibi witnesses who maintained that he was in Feci's apartment at the time when the murder occurred.

The State's argument that "Bernardo's time estimate is more realistically viewed as a deliberate contrivance to help his long-time friend . . ." (State's Obj. at 36), is of no consequence. As noted in the Report, the degree to which B. Rodriguez's credibility was affected by his interests and by inconsistent statements by other witnesses is a matter for the jury, not the Court. As the Supreme Court has stated:

[T]he conviction of our time is that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court. . . . [W]e believe that [this] reasoning [is] required by the Sixth Amendment.

Washington v. Texas, 388 U.S. at 21 (quoting Rosen v. United States, 245 U.S. 467, 471 (1918); United States v. Doyle, 130 F.3d 523, 543 (2d Cir. 1997). If the jury, or any single member of it, were to credit B. Rodriguez's testimony even partially, so that it created a reasonable doubt about Bohan's guilt, he would have been acquitted or entitled to a new trial. The Court thus finds that the record in this case presents a "grave doubt" as to whether the Trial Court's preclusion of B. Rodriguez's testimony was harmless. O'Neal v. McAninch, 513 U.S. 432, 436-37 (1995). Accordingly, the Court concludes that Bohan's writ for habeas corpus must be granted because: (1) the Trial Court violated Bohan's Sixth Amendment right to compulsory process when it precluded the testimony of B. Rodriguez, absent a finding of willful misconduct; and (2) the Trial Court's error was not harmless.

In reaching this conclusion, the Court is mindful that the record here gives cause for some hesitation. As the Report correctly notes, there was more than sufficient evidence presented at trial for a rational juror to conclude that Bohan committed the murder in question. (See Report at 29-30.) The jury may very well have discredited the testimony of B. Rodriguez, but, given the critical importance of the timing of events in this case, the Court does not find that this outcome was as inevitable as the State asserts. Ironically, although the prosecution adamantly maintained at trial that it would be prejudiced by the presentation of B. Rodriguez's testimony, it now asserts that the same testimony would have been cumulative and inherently incredible. When, as in the instant case, rulings by a state court manifesting constitutional error create grave doubts about their effect on a petitioner's guilty verdict, a federal court has an obligation to grant a writ of habeas corpus. O'Neal, 513 U.S. 432, 436-37 (1995) ("[I]n cases of grave doubt as to harmlessness the petitioner must win"). Although the State has valid interests in the orderly presentation of evidence and preserving its ability to fully prepare for the testimony of alibi witnesses, such interests cannot override a defendant's fundamental right to present witnesses in his defense, absent a finding a willfulness or bad-faith by the defendant or his counsel. See Noble, 246 F.3d at 100; cf. In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) ("In a criminal case, . . . we do not view the social disutility of convicting an innocent man as equivalent to the disutility of acquitting someone who is guilty. . . . [T]he requirement of proof beyond a reasonable doubt in a criminal case is bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.").


In his petition, Bohan asserts that Rawlins made numerous mistakes before and during trial that amounted to ineffective assistance of counsel. With regard to nearly all of these alleged mistakes, the Report concluded that Bohan "has not established that `but for' these failings, the outcome of the trial would have been different." (Report at 49-50 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).) With respect to Rawlins's failure to serve the prosecution with alibi notices, however, the Report concluded that his conduct fell "outside of the wide range of professionally competent assistance," and that there is "more than a `reasonable probability' that the trial result would have been different `but for' [his] errors." (Report at 71 (quoting Strickland, 466 U.S. at 694.) The Report also found that Bohan had exhausted his state remedies for his ineffective assistance claims, since he raised them in his direct appeal to the Appellate Division. (See Report at 46-47.) The Court agrees.*fn13

In the instant case, the State contends that: (1) the Report erroneously concludes that Bohan exhausted his ineffective assistance claims in state court; and (2) Rawlins's deficient performance did not prejudice the defense because B. Rodriguez's alibi testimony was "unreliable and even had it been admitted, would not have affected the outcome of the trial." (State's Obj. at 39.)*fn14

Under New York Criminal procedure Law, § 440.10 ("CPL § 440.10"), a convicted defendant may move a sentencing court to vacate his judgment on the ground that "material evidence adduced by the people at a trial resulting in judgement was procured in violation of the defendant's rights under the constitution of [New York] or of the United States . . . ." CPL § 440.10(1)(d). The State maintains that Bohan's "failure to pursue his ineffective assistance claim in the state courts by way of a motion under CPL § 440.10 contravenes the firmly entrenched New York rule that only by such a motion can a proper record be developed with respect to factual issues that cannot be resolved based on the appellate record alone." (State's Obj. at 39.)

The Court finds that, contrary to the State's objection, Bohan exhausted his ineffective assistance of counsel claim. It is well-settled that "once the state courts have ruled upon a claim, it is not necessary for a petitioner `to ask the state for collateral relief, based upon the same evidence and issues already decided by direct review.'" Castille v. Peoples, 489 U.S. 346, 349 (1989) (quoting Brown v. Allen, 344 U.S. 443, 447-449 (1953)). Once the Appellate Division rejected Bohan's ineffective assistance claim and the Court of Appeals denied leave to appeal, he had exhausted this claim in state court. See Castille, 489 U.S. at 351; Meggett v. Miller, 93 Civ. 7402, 1994 WL 808048, *5 (S.D.N.Y. July 23, 1994) ("[E]ven if the petitioner failed to comply with state procedural requirements, he will be deemed to have exhausted his state-court remedies if the highest state court nonetheless addresses the claim.").

The Court also agrees with the Report's conclusion that there is more than a "reasonable probability" that the trial result would have been different "but for" Rawlins's deficient performance as Bohan's trial counsel. As discussed above in Part B.2, if Rawlins had properly filed a notice for B. Rodriguez's alibi testimony and the jury had heard his testimony, there is at least a reasonable probability that the outcome of the trial might have been different. See Strickland, 466 U.S. at 694. In reviewing this claim on direct appeal, the Appellate Division came to the opposite conclusion: "On the existing record, which [Bohan] has not sought to amplify by a motion pursuant to CPL 440.10, we conclude that defendant received meaningful representation. Counsel's alleged errors could not have deprived defendant of a fair trial." Bohan, 684 N.Y.S.2d at 515 (citing People v. Benevento, 697 N.E.2d 584, 587-88 (N.Y. 1998)). In Benevento, although the New York Court of Appeals acknowledged that Strickland established the federal standard for an ineffective assistance of counsel claim, it applied its own standard that pre-dated Strickland. See Benevento, 697 N.E.2d at 589. Under the New York Constitution, a claim of ineffectiveness is "ultimately concerned with fairness of the process as a whole rather than its particular impact on the outcome of a case. . . . Thus, whether defendant would have been acquitted on the charges but for counsel's errors is relevant, but not dispositive under the State guarantee of effective assistance of counsel." Id. at 588. As noted in the Magistrate Judge's Report, this standard is not "diametrically different" from the standard under Strickland. (See Report at 72-73 (citing Williams, 529 U.S. at 405-06).) In fact, the New York standard is more expansive than Strickland and would provide relief to some defendants who would not be entitled to relief under federal law.

Accordingly, the Court agrees with the Reports' conclusion that the Appellate Division's denial of Bohan's ineffective assistance claim was "an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court . . . ." 28 U.S.C. ยง 2254 (d)(1). The Appellate Division incorrectly concluded that Rawlins's failure to serve the prosecution with an alibi notice for B. Rodriguez's testimony "could not have deprived [Bohan] of a fair trial." Bohan, 684 N.Y.S.2d at 515. As discussed above, if the jury had ...

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