United States District Court, E.D. New York
January 8, 2004.
DAMECHA HARRIS, Petitioner, -against- DANIEL SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
The Court grants petitioner Damecha Harris' ("Harris") habeas
corpus petition challenging, pursuant to 28 U.S.C. § 2254, his
state court robbery conviction, for which he is serving a term of fifteen
years to life. Two aspects of this case are rather remarkable: one, the
abject ineffectiveness of trial counsel for his failure to confront the
victim the sole witness who identified Harris as the perpetrator
at his trial with a totally different description of him given by
her to the police within thirty minutes after the robbery; two, that it
has taken Harris almost twelve years from the date of his conviction to
I. State Court Proceedings
The underlying facts leading to Harris' arrest could not be more
simple. On February 25, 1991, at approximately 9:20 p.m., Leonida Punu
("Punu") was robbed outside her home in Queens, New York. Punu called the
police, who came to her apartment and took her statement. A complaint
report prepared by an Officer Clifton, just thirty minutes after the
robbery, states that Punu described her assailant as a black man twenty
years of age, standing 5' 4" tall and weighing 130 pounds. Punu is
described in the complaint report as an Asian female.*fn1
The next evening, two police officers drove Punu around her
neighborhood in search of her assailant. After 45 minutes, Punu
identified Harris as he was walking on a street; he was accosted and
arrested. Two reports relating to his arrest an On Line Booking
System Arrest Worksheet and a Stop and Frisk Report described
Harris, albeit black, as 26 years old, 6 feet tall and 220 pounds.*fn2
A. Wade Hearing
Prior to trial, a Wade hearing was held to determine whether
Punu's identification of Harris should be suppressed as unduly
suggestive. See United States v. Wade, 388 U.S. 218 (1967).
Police officer Russo ("Officer Russo" or "Russo") was the only one to
testify. On direct examination, Officer Russo recounted that he spoke to
Punu on the day after the robbery; "she gave [Russo] a description of a
male and she told [him] that she had seen him in the neighborhood
before." Wade Hearing Transcript at 5.*fn3 During that
conversation, Russo and Punu arranged "to take a ride around the
neighborhood" later that evening to search for the perpetrator.
Id. Russo testified that as he and a fellow officer drove Punu
home that night, the following occurred: " [S]he pointed to a male across
the street and she said `that's him over there.' And I said, `which
person?' And she described him and she said, `the male running toward the
subway.'" Id. at 6. Harris' counsel sought to cross-examine
Russo about the complaint report:
Q: On February 26th you spoke with Leonida Punn
[sic]; is that correct?
Q: Did she contact you or did you contact her?
A: I contacted her.
Q: By telephone?
Q: And you contacted her, you indicated, because
you were reading a report; is that correct?
Q: Did you take the report?
A: I don't understand what you mean.
Q: In other words, were you the person, the
officer, who filled out the information in the
Q: Did you know who did take the report?
* * *
A: Yeah, the name is on the bottom of the 61.*fn4
Q: Do you have the 61 with you?
A: Yes, I do.
Q: Would it refresh your memory as to who took the
report if you looked at the 61?
A: Yes . . .
Q: Have you refreshed your recollection?
Q: Who was it that took the report?
A: Demayon. (phonetic) . . .
Q: When you spoke to . . . Leonida Punn [sic]
. . . did she ever mention
the name Dematra [sic] Harris to you?
* * *
Q: Did she provide you with a description of the
person that robbed her?
Q: What was that description?
A: I don't recall offhand right now.
Q: Did you write it down as she was taking it
as she was giving it to you?
A: Write it down, no, but I no, I don't
Id. at 10-13.
Harris' counsel did not pursue the matter; he did not attempt to offer
the complaint report into evidence, or call Punu or the officer who wrote
the report to testify. The focus of his cross-examination was limited to
the issue of suggestiveness. In that regard, he questioned Russo about
whether he assisted Punu in identifying Harris by calling her attention
to Harris as they were driving:
Q: Immediately prior to her identifying that one
person, isn't it true that you pointed to that
person and said, Miss Punn [sic], is that him
or isn't that him or words to that effect?
A: I don't recall saying that.
Q: Do you recall saying something to her?
* * *
A: Like, are you sure it's him.
Q: Prior to pointing to that person in the street,
isn't it true you said something to her?
A: I don't recall saying anything, no.
Id. at 14-15.
Because there was no evidence of suggestiveness, and the court never
knew of the description of Punu's assailant in the complaint report, the
suppression motion was understandably denied.
B. The Trial
The entire trial, from opening statements to verdict, took place in one
day, January 15, 1992. Just prior to the commencement of the trial,
Harris' counsel unsuccessfully moved to reopen the Wade hearing
to require Punu to testify because her Grand Jury testimony, which he had
just received, was at variance with Officer Russo's Wade
testimony; she told the Grand Jury that "Russo asked me, what about that
guy on your left hand side." Trial Transcript ("Trial Tr.") at 10*fn5
(quoting Grand Jury Transcript ("Grand Jury Tr.") at 5).*fn6
Punu and Russo were the only ones who testified at the trial. Their
combined testimony covers just thirty-five pages of the trial transcript.
See Trial Tr. at 29-64. As noted by the judge, the testimony
took all of "25 minutes." Id. at 73. Punu's direct
examination comprises eighteen pages, see id. at 29-47;
cross-examination is eleven pages. See id. at 47-58. Russo's
direct examination covers six pages, see id. at 59-63;
cross-examination consisted of six questions. See id. at 63-64.
The following is the totality of Punu's direct testimony describing the
Q: Now approximately what time did you arrive
home that night?
A: It was about approximately 9:20, 9:25.
Q: And when you arrived home, will you please
tell the members of the jury what if
anything did you do?
A: Okay. I was on my way I was walking home
along Avon Street and then in front of my
house it was Monday evening. So they pick
up the garbage in the morning, so the empty
garbage was in front of my house. So I put
it on the side of my house and then after I
drop the garbage and I saw this I
saw a man right behind me on my left side.
I turn around and I saw this man and then I
say "You again?" And then he said "I have a
gun don't scream."
Q: Now, ma'am, when you said you saw him
behind you to the left, where you're
seated, would you please point exactly
where behind you he was?
A: He was I dropped the garbage on
this side. And then I was I turn around and
saw him on my left side. I turn around like
this. I dropped this garbage and then I
turn around and I saw him. I said, "You
Q: Now where you're seated, how far was he in
relationship to where the Judge is seated?
Turn around and look at him.
A: About there. Court: Four to five feet.
Q: You turned and looked at this individual?
Q: Now when you said "You again," what were
you referring to, ma'am?
A: Because three weeks ago, the same day,
Monday, same guy, I saw the same guy I was
walking along Avon Street. And he was
walking in the middle of the street. And I
was walking on the pavement. And the minute
he saw me, he went to me and then I ran in
the middle of the street. And then he said.
He acted like that. And then the following
week I was on vacation, on a Wednesday,
between 5:00 and 6:00, I was again, I was
taking out garbage because I was on
vacation. I was taking out garbage. And
this guy is coming from Avon Street. And
then he went when I saw him, I
remember he was the same guy that was
trying to get me on the week before that
[Harris' Counsel]: Objection to the
characterization, your Honor.
Court: The jury will disregard the statement
"trying to get me."
Q: That was the same person you had seen
Q: So the second time you saw him, describe
how did you see him?
A: I saw him, he was getting near me. When I
look at him, I got really scared. And I ran
upstairs . . . I ran upstairs and kept
ringing my doorbell and I told my daughter,
"Call the police. Call the police." And the
guy said "I'm not going to do anything. I'm
just asking for an address."
* * *
Q: On the 25th of February, when you saw him
again in front of your house, how many
times had that been then?
A: That was the third time.
Id. at 33-36.
With regard to the events of the next night, when she identified
gave the following testimony on direct examination:
Q: Now as you got into the automobile with the
officers, please tell the members of the
jury, where did you go at that point?
A: We drove around started in
Hillside, drove around Downing, and then we
went round Avon and we kept going around
then we went to Midland, went to Wexford.
Kept going around four times.
Q: Okay. Now, when you first went on Midland
Parkway, where did the officers turn at
* * *
A: The officer went to Wexford Terrace.
Q: Is that a right or a left?
A: Its [sic] on the right side.
Q: And what happened as they did that?
A: And when we the officer told me
that maybe they will not he's not
around. So I will take you home. And they
were going to take me home. And then the
officer said did you see anything on your
left? I said no, because I was on the right
hand side of the car and I was thinking
that I was they were going to bring
me home. And then he said okay. We'll drive
one more time around. And then we drove one
more time around and when we got on Midland
Parkway, I saw this man walking, on the
righthand side of Midland and I said,
that's him. That's him.
Q: Now before you said that had the officer
said anything to you?
Q: Now after you said that's him, that's him.
What happened next?
A: And then are you sure? Are you
sure? The officer said, I'm sure, I'm sure,
that's him. That's him. And we made a
U-turn. He made a U-turn on Midland
Parkway. And then parked the car on
Hillside Avenue and Midland Parkway. And
then they said "Stay here." And then I
stayed there . . .
* * *
Q: Tell us what happened.
A: And after that they told me to they
brought the guy and then he said we want
you to relax and we want you to be calm and
we want you to identify one more time. And
when I look at the guy I said "That's him.
Q: Now, Miss Punu I'm going to ask you to look
around this courtroom and tell the members
of the jury, if you see the person in this
courtroom, that you observed that night?
* * *
A: That's him, the guy.
* * *
Court: Indicating the defendant.
Q: Now is that the person you saw, ma'am, on
February 25, 1991?
[Harris' Counsel]: Objection.
A: Yes. That's him.
Q: Is that the person you had seen that
[Harris' Counsel]: Objection.
A: That's him.
Q: Is that the person you had seen that
previous Monday two weeks before?
A: That's him.
Id. at 44-47.
On cross-examination, Punu testified that Hillside Avenue was a
"commercial area," id. at 52, but Avon was not; further, when
asked whether "on February 25, 1991, there wasn't a single male black on
Hillside Avenue anywhere in that area," she answered in the affirmative.
Id. Harris' counsel elicited that there were only two
streetlights in the area. See id. at 53.
Harris' counsel sought to ascertain whether the officers might have
pointed Harris out to her before Punu identified him. He asked her
whether "at some point the officer asked you to look to the left, is that
correct?" Id. at 56. Punu responded in the negative because, as
she explained, she was "on the right side and . . . was thinking of
getting home." Id. Harris' counsel did not confront her with the
contrary testimony she gave to the Grand Jury, that Russo asked her "what
about the guy on your left-hand side." Grand Jury Tr. at 5.
Harris' attorney also asked Punu whether the police "wrote down what
[Punu] said" after she identified Harris. Id. at 55. She
responded that she did not recall; nor did she recall whether she saw "a
note pad in their hands." Id. Harris' attorney never questioned
Punu about the description she gave the police the night of the robbery
that was contained in the complaint report; nor did he question her about
a statement in the complaint report that "[p]erp. did not display a gun."
Complaint Report, Hrg. Ex. A at H0071.
Officer Russo testified about Punu's identification of Harris on the
day after the robbery; it tracked his testimony at the Wade
hearing. See Trial Tr. at 62. During the course of his
testimony, Russo made an in-court identification of Harris as the person
arrested that evening. See id. Harris' counsel's six
questions on cross-examination merely elicited that Russo was not an
eyewitness to the crime and that Harris lived in Brooklyn.
The prosecution offered no other evidence. Harris' attorney did not put
in a case; thus, he did not introduce the complaint report into evidence
or call Officer Clifton to testify.
In his summation, Harris' attorney's sole theory of defense was
mistaken identification. He argued that there were many other black males
in the area, see id. at 80; that Punu was likely "tired,
inattentive," id. at 84, and that it was "dark." Id. He
stated: "Someone is behind you and you'd be very scared. You wouldn't be
able to point to a lot of detail." Id. He also argued that Punu
was "inattentive" when she identified Harris the next day. Id.
After deliberating for a little more than three hours, the jury
convicted Harris of Second Degree and Third Degree Robbery. See
id. at 124, 129-30.
C. Subsequent Proceedings
1. Direct Appeal
Represented by newly-assigned counsel, Harris appealed. Two briefs were
submitted by counsel. The first raised three issues: (1) refusal of the
trial judge to reopen the Wade hearing in light of Punu's Grand
Jury testimony; (2) insufficient evidence of physical injury for a second
degree robbery conviction, and (3) excessiveness of the sentence.
See Brief for Defendant-Appellant, dated December 1992, attached
to Odessky Affidavit, Ex. D. A supplemental brief asked for dismissal of
the third degree robbery conviction on the ground that it was a
lesser-included offense. See Supplemental Brief for
Defendant-Appellant, dated July 1994, attached to Odessky
Affidavit, Ex. D. Appellate counsel did not raise ineffectiveness of
In a rambling, disjointed, handwritten supplemental pro se
brief, Harris specifically referred to the complaint report as further
support for reopening the Wade hearing, and was critical of
Officer Russo's failure at the hearing to acknowledge the 5'4", 130 pound
description in the report. See pro se Supplemental Brief ("Supp.
Br.), dated May 26, 1994, attached to Odessky Affidavit, Ex. F at 8,
14.*fn7 However, there was no focused criticism of his counsel's failure
to elicit the contents of the report at the Wade hearing or
during the trial. In response, the government sought to capitalize on
trial counsel's failure to use the complaint report, thereby injecting
the issue of counsel's effectiveness:
Defendant also raises a number of new issues in
his pro se brief. For example, defendant
challenges for the first time a discrepancy
between the victim's description to the police on
the night of the robbery and defendant's own
physical attributes. Needless to say, Ms. Punu
identified defendant on the street (leading to his
arrest), identified him after his arrest, and
identified him once more at trial. The arresting
officer testified that he arrested the defendant
the person identified by the victim
and, like Ms. Punu, also identified the
defendant at trial. Defendant had the
opportunity, but failed to use it, to
cross-examine both the victim and the police
officer before the jury about any such discrepancy
with the police description.
Supp. Br. at 4 (emphasis added).
On February 6, 1995, the Second Department affirmed the conviction for
second degree robbery, but reversed the third degree conviction because
it was subsumed in the second degree conviction as a lesser-included
offense. In respect to the Wade
hearing, the court concluded that the trial court "acted within its
discretion in denying the defendant's application to reopen [the hearing]
and to compel production of the complainant, as no substantial issues
regarding the constitutionality of the showup identification were
raised." People v. Harris, 623 N.Y.S.2d 128 (2d Dep't 1995). It
buttressed its holding by commenting that "the defendant made no attempt
to impeach the complainant's testimony with her allegedly inconsistent
Grand Jury testimony nor did he argue during summation that the pretrial
identification procedure was unduly suggestive." Id.
Addressing Harris' pro se submission, the appellate court
summarily concluded that the contentions raised therein were "without
merit." Id. The Court of Appeals thereafter denied leave to
appeal on April 19, 1995. People v. Harris, 85 N.Y.2d 939
2. Collateral Attacks
While his direct appeal was sub judice, Harris filed a number
of unsuccessful pro se motions pursuant to N.Y. Crim. Proc. L.
§§ 440.10 and 440.20 to vacate the judgment of conviction. Only in one
did he seem to take issue with his trial counsel's performance, making a
number of garbled, fairly unintelligible comments,*fn8 which elicited a
response from the respondent that Harris' motion papers "fail[ed] to
state the precise grounds, facts, or law upon which he bases his
ineffective assistance of counsel claims." Affirmation in
Opposition to Defendant's Motion to Vacate Judgment, dated Jan. 24,
1994, attached to Odessky Affidavit, Ex. I at 2. The motion was summarily
denied, see People v. Harris, No. 1371-91, Order dated Feb. 8,
1994, and leave to appeal was denied. See Appellate Division
Order, dated Dec. 16, 1994.*fn9
On August 9, 1997, after his direct appeal was rejected, and after he
had initiated, pro se, his habeas proceeding, Harris
filed another pro se collateral motion in state court. Although
he attached a copy of the complaint report as an exhibit, and challenged
his trial attorney's failure to utilize the report,*fn10 the thrust of
his rambling comments seemed to focus, once again, on the Wade
hearing, leading the court to construe this motion as raising "issues
regarding the conduct of the Grand Jury and issues involving
identification and the Wade hearing." People v. Harris,
No. 1371-91, Order and Memorandum, dated Oct. 14, 1997, attached to
Rochon Affidavit, Ex. F. The court denied the motion, summarily ruling
that Harris' claims were procedurally barred and "unsupported by sworn
allegations of fact." Id. Thus, the court did not pass upon the
effectiveness of trial counsel's conduct. The Appellate Division denied
leave to appeal. See People v. Harris, No. 1371-91, Decision and
Order, dated Feb. 18, 1998, attached to
Rochon Affidavit, Ex. G.
II. Federal Proceedings
Harris' habeas petition, dated and notarized April 9, 1996,
was received by the Court on May 2, 1996. Respondent filed a motion for a
more definite statement on January 29, 1997, which the Court summarily
denied on May 19, 1998. Respondent thereafter submitted papers in
opposition to the petition on June 18, 1998. On September 14, 1998, the
Court referred the matter to a magistrate judge for a Report and
Recommendation ("R & R").
A. The Magistrate Judge's R & R
In his R & R, dated May 10, 2000, the magistrate judge construed
Harris' petition as raising the following claims: "(1) improprieties in
the Grand Jury proceedings . . .; (2) the court's refusal to reopen
the Wade hearing based on Punu's Grand Jury testimony, which
allegedly raised the possibility that Officer Russo prompted the
complainant to identify Harris, and (3) the court's imposition of an
allegedly excessive sentence." R & R at 5-6. The R & R thoroughly
and comprehensively addressed and rejected each of these claims;
accordingly, the magistrate judge recommended that the petition be
In discussing Harris' claims relating to the Wade hearing, the
magistrate judge noted:
Harris was described in the initial police
complaint report as measuring five feet four
inches in height and weighing 130 pounds. In the
arrest report filed by Officer Russo, Harris is
described as measuring six feet in height and
weighing 220 pounds. However, this discrepancy
was not raised by defense counsel at trial or on
R & R at 14 (emphasis added).
Because the magistrate judge did not construe Harris' habeas
petition as raising an ineffectiveness claim, the R & R did not
address the issue.
B. Adoption of the R & R
In a Memorandum and Order ("M & O"), dated September 19, 2000, the
Court adopted the R & R, after conducting a de novo review.
As noted in the Court's decision, Harris submitted "thirty-two prolix and
muddled pages" of objections to the R & R, and claimed, inter
alia, that he "was denied effective assistance of counsel," M &
O at 2. Nonetheless, the Court viewed the objections as mirroring "in
essence" the claims "addressed and examined fully by [the magistrate
judge] in the R & R." M & O at 2. In regard to the
ineffectiveness claim, the Court acknowledged in a footnote that the
magistrate judge did not "address the allegation of ineffective
assistance of counsel specifically under that label," id. at 2
n.1; nonetheless, the magistrate judge had "examined the substance of
th[e] claim . . . and properly found the contentions to be meritless"
because "defense counsel [had] cross-examined [Punu] about the show-up
identification and had a full and fair opportunity to make arguments
concerning the identification on summation." Id. (internal
C. Circuit Court Remand and the Amended Petition
On May 14, 2001, the Second Circuit granted Harris' request for a
certificate of appealability "for the limited purpose of remanding to the
district court to permit Harris to amend his habeas petition to
add his ineffective assistance of trial and appellate counsel claims."
Harris v. Senkowski, No. 01-2024, Order dated May 24, 2001.
Harris availed himself of this opportunity and filed an amended petition
on September 6, 2001.*fn12
In his amended petition, Harris squarely claimed that trial counsel was
ineffective because he: (1) failed to cross-examine Punu at trial
regarding the inconsistency between her initial description of her
assailant, contained in the complaint report, and her later
identification of Harris; (2) failed to raise the description given in
complaint report during the Wade hearing, and (3) failed
to impeach Punu with inconsistent Grand Jury testimony. Harris also
claimed ineffective assistance of appellate counsel for failure to
address these claims on his direct appeal. The Court appointed counsel
and ordered a hearing.
D. The Habeas Hearing
The hearing was held on October 20, 2003. The sole witness was Harris'
trial counsel. He conceded that his entire theory of defense was "to show
that Ms. Punu was mistaken when she identified Mr. Harris as her
assailant," Hrg. Tr. at 12, and that "Mr. Harris' conviction rose or fell
based upon the identification of this one eyewitness." Id. at
11. He confirmed that Harris was indeed six feet tall and 220 pounds.
See id. at 29-30.
In respect to the Wade hearing, he explained that he did not
press Officer Russo about the contents of the complaint report because
Russo "wasn't the one who took the original report." Id. at 27.
In respect to the trial, Harris' counsel had no particular reason for not
questioning Russo about the report other than a generalized concern about
being "very careful not to open the door, so to speak, regarding
anything that might have happened during the arrest." Id. at 42.
As he explained in that regard:
I did not want to give the prosecutor any
opportunity to elicit testimony from Officer Russo
regarding any struggle during the arrest. The fact
that there were stolen credit cards. Anything that
might be construed as flight, consciousness of
guilt, or pounding the cell door at the time of
arrest. In so far as knowing that there were these
other things, I was very careful what I asked
In respect to Punu, Harris' counsel made " a conscious decision not to
pursue a line of cross[-]examination regarding the complaint report."
Id. at 43. As best as can be culled from his testimony, he
reasoned that she was "a very strong witness," id. at 28, as
manifested by "her facial expressions" while testifying, id. at
29; she "had recognized [Harris]" from two prior occasions, id.
at 28; "she never locked herself into the [complaint] report,"
id, and he "didn't want to appear to be pushing her or badgering
her in front of the jury." Id. at 43.
The following colloquy transpired when the Court questioned Harris'
Court: It seems to me that we are talking
about the fact that Officer Clifton had a
conversation with the complaining witness
where she described the defendant as five
feet four and 130 pounds. That happened a
half hour after the incident. Did you
speak to Officer Clifton?
Witness: No, I did not.
Court: Did you think of calling him as a
Witness: No, I did not.
Court: Tell me why not . . .
Witness: First, I wouldn't have had the report up
until the Wade. But, again,
unless I can get the witness to say or
either deny that she ever gave a
different description, I can't impeach
Court: Did you ever show her this report that
purports to be the description that she
gave to Officer Clifton 30 minutes after
Witness: I don't believe that I did. No.
Court: Is there any reason why you didn't show
it to her and confront
her with the report? . . . This is
the first contact that she had with the
authorities about it, is that right?
Wouldn't you think that is very
Witness: If I could get her to commit to the
report. Again, her signature does not
appear on that.
Court: Would you not possibly have shown her
this document to see whether or not it
refreshes her recollection or whether or
not she can acknowledge that she made
this statement to the police officer?
* * *
Court: Did you ever ask her whether she told any
of the police officers that the defendant
was five feet four weighed 130 pounds?
Witness: No, I didn't.
Court: I guess that is really what sort of
puzzles me a little bit. You would think
having the report in front of you that
would be the most simple logical question
to ask her. That is not going to open the
door to any possible damaging
testimony. . . . If she said she doesn't
remember then, possibly, you can then show
her the report which is used to refresh
her recollection. Or if she denies it, you
can just call Officer Clifton to testify
to the admissions that she made before
him. It just seems to me logically that
would be the common sense type of cross
examination. The way to handle this
significant variance to the
identification of the perpetrator.
Id. at 31-36.
The Court elicited the following testimony from Harris' counsel in
respect to his concern about "badgering" Punu:
Court: Why would you be badgering her if you
asked her whether she ever told the
police a half hour later that this person
was five foot four inches tall and 130
pounds? I don't understand why that would
Witness: Again, I was trying to get her to testify
that she gave the information to the
police. She was being some more
resistant. She was a strong witness. I
Court: Wouldn't that really go to the heart of
destroying her credibility if she weren't
to have acknowledged when confronted with
this report, that indeed she did say that
to the police. Even if she were to walk
away from that if you called Officer
Clifton, it would place her credibility
in serious doubt if he were to testify
this is what she actually told me. . . .
You have nothing to respond to with
respect to that?
Id. at 43-44.
Under questioning by the respondent's attorney, Harris' counsel
described his defense strategy as follows:
Q: What was your strategy?
A. Again, I was trying to show that Ms. Punu
was coming home from [Midland Park]way.
She was distracted. That the incident
happened quickly. That she really, again,
it is an identification case.
Court: It was dark out, so you really told the
jury that Ms. Punu did not have ample
opportunity to identify the defendant.
That it was dark. This happened very
quickly. That he came from behind and
etcetera, etcetera [sic], is that right?
Witness: Yes, sir.
Court: You flat out told the jury that your
whole case rises or falls on mistaken
identification. Yet you didn't bring out
the one piece of documentary evidence
that you had, because it was dark and
because this happened very quickly she
got it wrong.
Witness: Yes, sir.
Id. at 50-51.
Respondent's counsel sought to establish that, putting the issue of the
complaint report aside, Harris' counsel had provided effective
representation: He was successful in a motion "to suppress the evidence
of other people's credit cards that Mr. Harris had on his person,"
id. at 41; he moved to reopen the Wade hearing "[i]n
order to properly preserve [the] issue for appeal," id. at 49;
he "sent an investigator out to try to talk with the complainant,"
id. at 39; he "went to the place where Mr. Harris was arrested,"
and he explored the prospects of an alibi defense. Id. at 40.
In a post-hearing submission, respondent argues that Harris received
effective representation because Harris' trial counsel "made a conscious
choice not to cross-examine Ms. Punu" regarding her prior description of
the attacker, which respondent contends was a "reasoned," "strategic
decision" entitled to deference, Letter of Susan Odessky, dated November
21, 2003 ("Odessky Letter") at 6; thus, Harris' counsel's failure to
cross-examine Punu with regard to the complaint report did not fall below
"an objective standard of reasonableness [under] prevailing professional
norms." Id. Respondent further contends that counsel's
performance should be evaluated from an overall perspective. In that
regard, respondent points out that Harris' counsel:
[P]ersonally went to the scene of the alleged
robbery, checked out the possible alibi which
petitioner had provided him with, and had an
investigator attempt to speak with the
complainant. . . . [M]ade a number of
[pre-trial] motions[,] . . . was successful in
convincing the hearing judge to suppress the
evidence of the additional stolen credit
cards[,]. . . made a motion to reopen the
Wade hearing[,] . . . [and] ma[de] a
motion at the close of trial to dismiss the entire
Id. at 4-5. Respondent concludes, therefore, that
notwithstanding Harris' counsel's failure to confront Punu with the
complaint report, Harris "cannot overcome the strong presumption that
counsel's conduct was reasonable" when viewed in light of counsel's
overall performance. Id. at 6.
Furthermore, respondent contends that Harris cannot demonstrate
prejudice because the jury had "proof of petitioner's identity beyond a
reasonable doubt in the face of Ms. Punu's strong testimony regarding the
fact that prior to the robbery, she had seen him on two previous
I. Standard of Review
A. The Strickland Standard
It is settled law that ineffective assistance of counsel claims are
evaluated under the two prong standard promulgated by the Supreme Court
in Strickland v. Washington, 466 U.S. 668 (1984): A defendant
must show that counsel's representation "fell below an objective standard
of reasonableness" based on "prevailing professional norms," and that
"there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Id. at 688, 694. Strickland defined a "reasonable
probability" as "a probability sufficient to undermine confidence in the
outcome." Id. at 694.
In gauging counsel's performance, Strickland instructs that
"the court must be `highly deferential must' consider all the
circumstances must make `every effort . . . to eliminate the
distorting effects of hindsight/ and must operate with a `strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.'" Lindstadt v. Keane,
239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at
690). Since Strickland calls for the examination of the totality
of the evidence, no one error need be determinative; rather, multiple
errors should be considered "in the aggregate." Id. A court may,
however, find the right to effective assistance of counsel violated "by
even an isolated error of counsel if that error is sufficiently egregious
and prejudicial." Murray v. Carrier, 477 U.S. 478, 486 (1986).
See also Lindstadt, 239 F.3d at 199 (" Strickland
directs us to look at the totality of the evidence before the judge or
jury, keeping in mind that some errors have . . . a pervasive effect
on the inferences to be drawn from the evidence, altering the entire
evidentiary picture.") (internal quotations and citations omitted). In
the habeas context, where omissions by counsel "cannot be
explained convincingly as resulting from a sound trial strategy, but
instead ar[ise] from oversight, carelessness, ineptitude or laziness,"
courts may find "the quality of representation sufficiently deficient to
grant the writ." Eze v. Senkowski, 321 F.3d 110, 113 (2d Cir.
2003). As aptly noted by the Second Circuit in Eze,"
[n]otwithstanding the rigors of the Strickland standard,
counsel's inability to justify her actions by some plausible
trial strategy could very well lead to the conclusion that her
performance was constitutionally deficient." Id. at 137
(emphasis added). For example, "an attorney's failure to present
exculpatory evidence is ordinarily deficient, unless some cogent
tactical or other consideration justified it." Pavel v. Hollins,
261 F.3d 210, 220 (2d Cir. 2001) (internal citation omitted)
B. Pre-AEDPA Review
Prior to the enactment in 1996 of the Anti-Terrorism and Effective
Death Penalty Act (" AEDPA"), Pub. L. No. 104-132, codified in relevant
part at 28 U.S.C. § 2254, state court adjudications of pure questions
of law, as well as mixed questions of law and fact, were reviewed by
federal habeas courts de novo. See Pavel, 261 F.3d at
215. Findings of fact were presumed correct if they were "evidenced by a
written finding, opinion or other reliable and adequate written indicia,"
and were "fairly supported by the record." Berryman v. Morion,
100 F.3d 1089, 1094 (3d Cir. 1996) (referencing pre-AEDPA § 2254(d)).
See also Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001)
In the context of Strickland:
[A] state court's finding that counsel had a trial
strategy is a finding of fact to which the
habeas court must afford the presumption
of correctness if that factual finding is
supported by the record. However, the question of
whether counsel's strategy was reasonable goes
directly to the performance prong of the
Strickland test, thus requiring the
application of legal principles, and de
Berryman, 100 F.3d at 1095. In the absence of factual
findings, habeas review would, of course, be fully de novo.
See, e.g., Townsend v. Sain, 372 U.S. 293
, 314 (1963), overruled on
other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) ("If
the state court has decided the merits of the claim but has made no
express findings, it may still be possible for the District Court to
reconstruct the findings of the state trier of fact, either because his
view of the facts is plain from his opinion or because of other indicia.
In some cases this will be
impossible, and the Federal District Court will be compelled to
hold a hearing."); 39A C.J.S. Habeas Corpus § 365 ("A plenary hearing
in the federal court may be required where necessary findings of fact
were not made in the state court proceedings").
C. Post-AEDPA Review
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 has been
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; 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
28 U.S.C. § 2254(d).
In Eze, the Second Circuit recently explained the contours and
application of AEDPA in the context of a Strickland challenge.
As the court first noted, AEDPA's deferential standard does not apply
unless the federal claims were adjudicated on the merits; otherwise, the
pre-AEDPA standard of denovo review applies. See Eze,
321 F.3d at 121. In order to adjudicate a federal claim on the merits,
the state court need only dispose of it "on substantive grounds and
reduce that disposition to judgment;" hence, "[no] further articulation
of its rationale or elucidation of its reasoning process is required."
(internal citation omitted). Therefore, "an issue may be considered
to be adjudicated on its merits even when the state court does not
specifically mention the claim but uses general language referable to the
merits." Id. (internal quotation omitted). In such cases, the
federal court will simply "focus its review on whether the state court's
ultimate decision was an unreasonable application of clearly established
Supreme Court precedent." Id. at 125 (internal quotation
As further explained in Eze, an unreasonable application of
Supreme Court precedent means more than that the state court
incorrectly applied the precedent; it had to apply the facts in
an "objectively unreasonable manner." Id. This means that "some
increment beyond error is required," but it "need not be great; otherwise
habeas relief would be limited to state court decisions so far off the
mark as to suggest judicial incompetence." Id. (internal
Although factual determinations by the state court are still presumed
correct if fairly supported by the record, see 28 U.S.C. § 2254(e)(1)
(presumption of correctness), "a state court determination of
a factual issue which was not fairly supported by the record can hardly
be said to be a reasonable determination." Berryman, 100 F.3d at
1104-05. As in pre-AEDPA review, if there are no state court factual
findings, de novo review is still appropriate. See,
e.g., 39A C.J.S. Habeas Corpus § 365 (explaining the nature of
federal habeas hearings, both pre-and post-AEDPA); Nelson v.
Walker, 121 F.3d 828, 833 (2d Cir. 1997) ("If the material facts
were not adequately developed at the State court hearing or the District
Court finds that the factual determination is not fairly supported by the
the presumption of correctness [articulated in 2254(e)] is set
aside.") (internal citations and quotations omitted); Spencer v.
Donnelly, 193 F. Supp.2d 718, 731 (W.D.N.Y. 2002) (where state court
decision "fails to set forth factual findings on the issue of effective
assistance of counsel . . .[the] presumption of correctness is
inapplicable. . . . As a result, the Court is at liberty to make its
own findings of facts").
D. Harris' Petitions
AEDPA applies to non-capital petitions filed after April 24, 1996, the
date the Act became effective. See Lindh v. Murphy,
521 U.S. 320, 322 (1997). Pursuant to the "prison mailbox rule," a pro se
habeas petition is properly considered filed "as of the date it was
given to prison officials for forwarding to the court clerk." Noble
v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001) (quoting Adeline v.
Stinson, 206 F.3d 249, 251 n.1 (2d Cir. 2000) (per curiam)).
Consequently, district courts in this circuit have engaged in a
presumption that "the petition is deemed filed as of the date it was
notarized and presumably handed to correctional officials for mailing."
Owens v. Commissioner of Corrections, 2003 WL 22208496, *2 n.2
(D. Conn. Sept. 4, 2003); see also DeVino v. Duncan,
215 F. Supp.2d 414 n.1 (S.D.N.Y. 2002) (date petition notarized was the
appropriate filing date because "it is likely that [petitioner] handed
the petition over to prison authorities to be mailed on or about that
date"). Respondent has not made any effort to rebut the presumption that
Harris' habeas petition, dated and notarized April 9, 1996,
should be deemed filed on that date, even though received by the Court on
May 2, 1996; hence, the pre-AEDPA standard for review
Realistically, it makes no practical difference in this case whether
pre-or post-AEDPA standards are applied. First, there are no factual
findings by the state courts on any aspect of Harris' trial counsel's
effectiveness; therefore, there is no occasion to apply any factual
presumption of correctness and no basis for the Court to determine under
post-AEDPA review if the state courts' decisions were "based on an
unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2).
Second, since Strickland is clearly established Supreme Court
precedent, it drives the analysis under both standards, and it is
difficult, pragmatically, to imagine how the results would be different
under de novo pre-AEDPA review and the post-AEDPA "unreasonable
application" prong of § 2254(d)(1), assuming that the claim was even
adjudicated on the merits. See Cotto v. Herbert, 331 F.3d 217,
252 (2d Cir. 2003) ("[w]e need not and do not resolve today the question
of whether § 2254(d)'s standard of review applies because nothing
turns on it here") (internal quotation and citation omitted).
In this latter regard, it is not at all clear that the precise issue
now before the Court was ever adjudicated on the merits in any state
proceeding because it was, at best, obliquely presented. A careful review
of the rather convoluted record suggests that Harris
never squarely raised the question of his counsel's failure to
utilize the complaint report at trial; rather, his focus was always on
seeking to reopen the Wade hearing so that Officer Russo could
explain the discrepancy in the complaint report and Punu could be called
to testify about her inconsistent Grand Jury testimony. Nevertheless,
apparently satisfied that Harris' pro se submissions to the
state courts were intended to question the effectiveness of his counsel
at the Wade hearing and the trial, respondent has chosen not to
claim that the ineffective assistance of trial counsel issue is
unexhausted or procedurally barred. See Rochon Affidavit, Ex. M
("respondent withdraws and waives any argument that petitioner's
ineffective assistance of trial counsel claim is unexhausted or
II. Ineffective Assistance of Trial Counsel
A. Identification Testimony in General
Identification testimony is at once the "least reliable" form of
evidence but "among the most influential" to a jury. Kampshoff v.
Smith, 698 F.2d 581, 587 (2d Cir. 1983).
Courts have consistently viewed convictions built upon
uncorroborated eyewitness identification with skepticism. See, e.g.,
id. at 585-86 ("the experience of law and psychology has been that
eyewitness testimony may sometimes be the least trustworthy means to
identify the guilty. . . . Forensic science has . . . thoroughly
impeached the reliability of eyewitness identification."); Jackson v.
Fogg, 589 F.2d 108, 112 (2d Cir. 1978) (testimony of eyewitnesses
"is the least reliable [form of evidence], especially where unsupported
by corroborating evidence"); Phan v. Greiner, 165 F. Supp.2d 385,
398 (E.D.N.Y. 2001) (identification testimony "of a single
eyewitness to whom petitioner [is] a stranger" is "notoriously
unreliable, and is alone sufficient to undermine confidence in [a]
verdict"). See also]on O. Newman, The Madison Lecture:
Beyond "Reasonable Doubt," 68 N.Y.U. L. Rev. 979, 999 (1993)
(arguing that uncorroborated eyewitness identification should be
insufficient to sustain a conviction).
Furthermore, when the identification, as here, is cross-racial, it is
"much less likely to be accurate than same race identifications."
Arizona v. Youngblood, 488 U.S. 51, 72 n.8 (1988) (Blackmun, J.
dissenting). See also Radha Natarajan, Note, Racialized
Memory and Reliability: Due Process Applied to Cross-Racial Eyewitness
Identifications, 78 N.Y.U. L. Rev. 1821 (2003) (surveying studies
showing cross-racial identifications substantially more likely to be
erroneous than same-race identifications due to the psychological
phenomena of own-race bias, and arguing that due process requires an
alternative test for the admissibility of cross-racial identifications).
B. Hams' Counsel's Deficient Performance
The failure of Harris' counsel to confront Punu at trial with her prior
inconsistent statement given to the police within thirty minutes
after she was accosted is simply inexcusable. A more compelling example
of ineffective representation is difficult to fathom. Although,
generally, the decision whether to cross-examine a witness, and "to what
extent and in what manner," is "strategic in nature," United States
v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987), courts can
"second-guess such decisions" if there is "no strategic or tactical
justification for the course taken[.]" United States v. Luciano,
158, F.3d 655, 660 (2d Cir. 1998). Harris' counsel has offered what he
believes were three strategic reasons for abjuring cross-examining Punu
about her prior inconsistent description of her assailant: (1) she was a
"very strong witness"; (2) "she never locked herself into the [complaint]
report," and (3) he "didn't want to appear to be pushing her or badgering
her in front of the jury." Hrg. Tr. at 28, 29, 43. Each is ludicrous.
That Punu was viewed by Harris' counsel as a compelling witness
underscores the very reason why it was so essential to undermine her
credibility. Second, Punu was never given the opportunity to repudiate
the complaint report, nor was she even asked what she had told the police
when they took her complaint, or what she might have told Officer Russo
the next day; she simply testified that she had no recollection of
whether the police had written anything down. This provided a perfect
opportunity to confront her with the complaint report to jog her
recollection or, if necessary, to call Officer Clifton to testify about
what she told him. See People v. Carter, 641 N.Y.S.2d 908, 909
(3d Dep't 1996) (If a "witness denies that the statement was made or does
not remember making it, he or she may be impeached by the testimony of
others who heard the statement") (quoting Richardson on Evidence §
6-411 at 406 (Farrell 11th ed.); People v.
Moore, 597 N.Y.S.2d 444, 445 (2d Dep't 1993) (reversible
error where court "precluded defense counsel from questioning officer
[who took complainant's statement] as to whether the complainant ever
told him that her assailant weighed 250 pounds" when " [a]t trial, the
complainant described her assailant as weighing 200 pounds, and she
denied ever telling a police officer that he weighed 250 pounds");
People v. Raffa, 570 N.Y.S.2d 819 (2d Dep't 1991) ("court erred
in precluding [defendant] from questioning Fire Marshal . . .
regarding a prior inconsistent statement made to him by [witness], which,
at trial [witness] denied making").
In any event, Harris' counsel could have introduced the complaint
report into evidence as a business record. See People v.
Jackson, 338 N.Y.S.2d 760 (2d. Dep't 1972) (allowing complaint
report into evidence as a business record if "the complaining witness was
the source of the information"); see also People v. Selassie,
532 N.Y.S.2d 326, 329 (Sup.Ct. Bronx Cty. 1988) (admitting complaint
report into evidence because "a hearsay statement contained within a
business record shall be admissible to impeach a witness as a prior
inconsistent statement"). Remarkably, Harris' counsel testified at the
habeas hearing that it had never "cross[ed] [his] mind" to speak
to the officer who signed the report or call him to the stand. Hrg. Tr.
at 37. See Lindstadt, 239 F.3d at 200 ("[c]ounsel has a duty to
make reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary") (quoting
Strickland, 466 U.S. at 691).
Finally, Harris' counsel's reluctance to confront Punu about her prior
inconsistent description for fear of "badgering" her is hardly an
acceptable basis for allowing her identification of his client to go
unchallenged. In Eze, the Second Circuit did
not hesitate to find counsel ineffective for inadequate
cross-examination, even when he was "faced [with] the unenviable task of
cross-examining two young girls who, according to the prosecution, were
victims of heinous and brutal sexual abuse." Eze, 321 F.3d at
133. The court noted that "while we understand the reluctance to appear
aggressive toward the victims, one key inconsistency that would have
severely undercut the children's credibility was inexplicably ignored by
defense counsel." Id. While perhaps a sympathetic witness, Punu
was not on a par with the young victims of sexual assault in
There are a number of case precedents in this circuit and in New York
State courts railing against counsel's ineffectiveness for failing to
challenge identification witnesses with prior inconsistent statements, be
they sworn or unsworn, and whether or not made to law enforcement
authorities, especially when, as here, the prosecution turned on the
identifying witness' testimony. See Lindstadt, 239 F.3d at 204
(finding ineffective assistance of counsel where/ inter alia,
counsel failed to "effective[ly] challenge the credibility of the
prosecution's only eyewitness"); Harris v. Artuz,
F. Supp.2d, 2003 WL 22439736, *10 (E.D.N.Y. Aug. 26, 2003)
(finding counsel ineffective where counsel failed to impeach the
credibility of witnesses with evidence that would have aided defense's
theory of misidentification); People v. Winston, 521 N.Y.S.2d 110,
111 (2d Dep't 1987) (counsel ineffective where he "made no attempt
to impeach the victim" with previous inconsistent height description of
assailant and the identification was a "key issue" in the case);
People v. Riley, 475 N.Y.S.2d 691 (2d Dep't 1984) (finding
ineffective assistance of counsel where counsel "did not endeavor to
impeach the undercover officer
with relation to discrepancies which appeared in the record" when
the "resolution of factual issues . . . hinged upon the jury's
assessment of the credibility of the undercover officer, the only witness
who testified that defendant sold him drugs"). See also Eze, 321
F.3d at 126-27, 132-33 (finding counsel ineffective when he failed to
introduce "various inconsistencies" in expert's previous findings and to
cross-examine two victims with "inconsistencies [in their] stories" which
were "critical to the defense"); Sparman v. Edwards, 26 F. Supp.2d 450,
454-55 (E.D.N.Y. 1997) (finding counsel ineffective when he
"failed to cross-examine [child sexual abuse victims] about . . .
inconsisten[t] . . . statements that they made to the police").
Decisions from other circuit courts outside the Second Circuit finding
counsel deficient for failing to confront key witnesses with prior
inconsistent statements, be they identification witnesses or otherwise,
are equally compelling. See, e.g., Moore v. Marr, 254 F.3d 1235,
1241 (10th Cir. 2001) (noting that "counsel's failure to impeach a key
prosecution witness is potentially the kind of representation that falls
outside the wide range of professionally competent assistance") (internal
quotation and citation omitted); Driscoll v. Delo, 71 F.3d 701,
710 (8th Cir. 1996) (failure to question witness with prior inconsistent
statement made to investigators constituted deficient performance since
there was "no objectively reasonable basis on which competent defense
counsel could justify a decision not to impeach a state's eyewitness
whose testimony . . . took on such remarkable detail and clarity over
time"); Tomlin v. Myers, 30 F.3d 1235, 1238 (9th Cir. 1994)
(defense counsel's performance deficient when counsel failed to challenge
an in-court identification made by an eyewitness where the case "hinge[d]
on an eyewitness's
testimony"); Harris v. Reed, 894 F.2d 871, 878 (7th Cir.
1990) (failure to call witnesses to contradict eyewitness identification
of defendant was deficient performance); Nixon v. Newsome,
888 F.2d 112, 115-16 (11th Cir. 1989) (failure to impeach with prior
inconsistent testimony "sacrificed an opportunity to weaken the star
witness' inculpatory testimony"); Blackburn v. Foltz,
828 F.2d 1177, 1183-84 (6th Cir. 1987) (counsel deficient where he failed to
impeach an eyewitness with previous inconsistent identification testimony
when "weakening [the witness'] testimony was the only plausible hope [the
defendant] had for acquittal").
Perhaps the case that best represents this Court's view of Harris'
counsel's inexcusable performance is Berryman. There, the
defendant's counsel failed to raise the victim's prior inconsistent
testimony regarding her assailant's height and weight, where the
defendant's conviction "rested solely on the victim's uncorroborated
out-of-court identification, and her in-court identification."
Berryman, 100 F.3d at 1097. In language equally applicable to
the present case, the court concluded:
It borders on the inconceivable that a trial
attorney would fail to inform a jury of [the
victim's] prior problems with this
identification. . . . The reliability of this
victim's uncorroborated identification [of the
defendant] cuts directly to the heart of the only
evidence against [the defendant]. [Counsel] failed
to use it. That failure simply cannot be condoned
as reasonable trial strategy.
Id. at 1099.
The Court views Harris' counsel's trial performance as questionable in
other respects, such as (1) his failure to confront Officer Russo with
the complaint report at the
Wade hearing*fn15 and at trial to determine if it jogged Russo's
recollection of the description of Punu's assailant when Russo first met
with her; (2) his failure to cross-examine Punu about her inconsistent
Grand Jury testimony, and (3) his failure to inform the jury that the
complaint report stated that Punu had told the police that Harris did not
display a gun. Regardless, because the failure to bring to the jury's
attention Punu's prior identification of her assailant as eight inches
shorter and 100 pounds lighter than the defendant was itself an error so
blatantly egregious, even if one were to conclude that Harris' counsel
otherwise performed competently, the performance prong of
Strickland was clearly violated.
Harris' entitlement to habeas relief hinges on whether the
prejudice prong of Strickland has been satisfied: whether
Harris' counsel's unprofessional errors were sufficient "to undermine
confidence in the outcome of the trial." Eze, 321 F.3d at 137
(citation omitted). "[I]f it is determined following an evidentiary
hearing that counsel's trial performance was constitutionally deficient,
it is highly likely that Strickland's
prejudice component would be satisfied." Id. However, "[e]ven
serious errors by counsel do not warrant granting habeas relief where
the conviction is supported by overwhelming evidence of guilt."
Lindstadt, 239 F.3d at 205.
Respondent argues that, although Punu was the sole identifying witness,
her testimony was sufficiently strong to render the jury's determination
reliable because she had seen the defendant on two fairly recent
occasions and was certain about her identification when she observed him
while she was riding in the police car the night following the incident.
Be that as it may, once again the court's language in Berryman
rings true where, as here, the jury "never learned that [the key witness]
had previously described the height of her assailants very differently
from her [previous] testimony . . .[and was] therefore never able to
properly evaluate the strength of her identification." Berryman,
100 F.3d at 1102. As the court explained:
We note that this is not merely a matter of a
defense attorney deciding to forgo questioning an
identification witness about minor discrepancies
in her description, or the fact that her estimated
height was off by a couple of inches. . . . The
prejudice to Berryman is obvious.
* * *
Berryman's guilt rested entirely on the accuracy
of [the victim's] identification. Trial counsel
had weapons that he could have used to attack that
identification. He used none of them. It should
have been obvious that [the victim's] inconsistent
identification testimony from [previous] trials
could raise serious questions in the minds of the
jurors regarding [her] credibility and/or her
ability to identify her assailants.
Id. See also Griffin v. Warden, Maryland Correctional
Adjustment Center, 970 F.3d 1355, 1359 (4th Cir. 1992) (commenting,
in finding prejudice: " [e]yewitness identification evidence,
uncorroborated by a fingerprint, gun, confession, or co-conspirator
testimony, is a thin thread to shackle a man for forty years");
Nixon, 888 F.2d at 116-17 (granting writ because counsel failed
to introduce eyewitness' inconsistent identification where witness was
the "only eyewitness to the murder to testify at trial" and "other
evidence against [defendant] was far from overwhelming[.]");
Blackburn, 828 F.2d at 1184-86 (affirming grant of writ where
counsel's failure to challenge "critical differences in [witness's]
identification testimony" "left the only credible identifying witness's
testimony virtually unchallenged"); Harris, F. Supp.2d,
2003 WL 22439736 at *9 (finding prejudice where "[a]t the very
least, [witnesses'] observational powers would have been called into
serious question" if counsel had impeached witness with prior
inconsistent statement, and by failing to introduce impeaching evidence,
counsel "was unable to argue to the jury" that another individual was
responsible for the crime).
Notably, the Second Circuit in Lindstadt found prejudice where
counsel's errors "impaired his ability to mount an effective
cross[-]examination" of the corroborating witnesses, Lindstadt,
239 F.3d at 204, and in Eze it concluded that its confidence in
the outcome of the trial was undermined because of the defendant's
counsel's "inability to provide a convincing explanation for . . .
critically important omissions." Eze, 321 F.3d at 138.
The present case is as compelling as any of these exemplars of
prejudice. One need reflect only for a moment about what would likely
have occurred if Harris' counsel had confronted Punu with the description
contained in the complaint report. If she denied giving that description,
all counsel need to have done to totally undermine her
credibility would have been to place the report in evidence or call
Officer Clifton to testify, who would have presumably confirmed the
accuracy of his report. If, on the other hand, she admitted giving the
inconsistent description but attempted to walk away from it by explaining
that it was dark or that she did not have a good view of the assailant,
the certainty of her subsequent description, upon which respondent relies
in arguing that the evidence was overwhelming, would likewise have been
Given that the case "rose or fell" on the strength of Punu's testimony,
Hrg. Tr. at 11, that the jury was never told about the prior strikingly
inconsistent identification by the sole eyewitness, the absence of any
other evidence, the risks inherent in cross-racial identifications, and
considering that" [m]istaken identification probably accounts for more
miscarriages of justice than any other single factor [and]
perhaps . . . is responsible for more such errors than all other
factors combined," Wade, 388 U.S. at 229 (internal quotation
omitted), the Court concludes that trial counsel's errors seriously
undermined the reliability of the jury's verdict.
Petitioner's writ of habeas corpus is granted. Harris shall be
released from custody unless retried within sixty days.