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LYNN v. BLIDEN

United States District Court, S.D. New York


September 23, 2004.

ARNOLD LYNN, Petitioner,
v.
DENNIS BLIDEN, First Deputy Superintendant of the Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: KIMBA WOOD, District Judge

OPINION & ORDER

In June 2000, Arnold Lynn ("petitioner") filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner, who appears pro se, argues that he was denied effective assistance of counsel at his trial, and seeks an order vacating his conviction. In July 2000, this matter was referred for a Report and Recommendation to Magistrate Judge Theodore H. Katz. On April 26, 2004, Judge Katz issued a Report and Recommendation (the "Report"), recommending that the petition be denied with prejudice. For the reasons stated below, the Court rejects the Report's recommendation, and grants the petition.

I. Background

  Because the facts are set forth in the Report, see Report at 2-5, and the Court assumes familiarity with the Report, the Court describes the facts here only briefly. On February 7, 1992, Kendrick Chandler and Jermaine Seippio were shot outside of an apartment building in the Bronx. Chandler died, and Seippio was hospitalized. Once the police arrived, they began to question people about the incident. Pedro Arriaga was soon arrested as the shooter, based on statements made to the police by two apparent eyewitnesses. Arriaga was apprehended one or two blocks away by Detective Beers, who apparently "pulled [Arriaga] out from under the rear of a car, while [Arriaga was] being assaulted by the crowd." (See Brief for Defendant-Appellant ("Def.'s Br."), at 36, attached to the Affidavit of Assistant District Attorney Daniel R. Wanderman, dated Dec. 29, 2000 ("Wanderman Aff."), as Exh. 1) (quoting Det. Beers's Report).

  While Arriaga's case was pending before the grand jury, a third apparent eyewitness told a friend that Arriaga was innocent. That eyewitness, Luis Quinones, had previously been asked by a police officer at the crime scene whether he saw what happened. Quinones told the officer that he did not see anything. After Quinones told his friend that Arriaga was innocent, that friend and Arriaga's mother implored Quinones to tell the police that he had witnessed the shootings, and that Arriaga was innocent. Quinones initially refused to get involved, because he was concerned about his own safety, and the safety of his family. However, approximately two weeks after the incident, and following a conversation with Arriaga's attorney, Quinones informed the police and the Assistant District Attorney ("ADA") that Arriaga was innocent. During that meeting, which took place on February 20, 1992, Quinones apparently told Detective Martinez that he "couldn't recognize the person" who committed the crime. (Wade Hearing Tr. 34).

  The police, who had already closed the investigation, resumed their questioning of area residents, including Seippio (the surviving victim) and the two eyewitnesses who had initially identified Arriaga as the shooter. Following those interviews, the charges against Arriaga were dismissed.

  It is unclear from the record when the reopened investigation began to focus on petitioner. However, on September 16, 1992, Detective Martinez showed Toby Patterson, a fourth apparent eyewitness to the shooting, an array of six photographs, one of which was of petitioner.*fn1 Patterson identified petitioner as the shooter. Petitioner was arrested two days later. Approximately one week after petitioner was arrested, Detective Martinez showed Quinones the same six photographs. Quinones also identified petitioner as the shooter. On September 24, 1992, Patterson and Quinones were transported, separately, to the District Attorney's Office, where they each independently of one another, viewed a lineup containing petitioner, and identified petitioner as the shooter.

  Petitioner's trial attorney, Arthur F.X. Henriksen, Esq. ("Henriksen"), filed a pre-trial motion to suppress the identifications made by Patterson and Quinones. On February 8, 1995, the Honorable John P. Collins conducted a Wade hearing. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). At that hearing, Detective Martinez testified about, inter alia, the circumstances surrounding the presentation of the photo array to Patterson and then Quinones, as well as the procedure followed during the subsequent line-ups. Justice Collins concluded that all of the police procedures were proper, and that the identifications were admissible. (Wade Hearing Tr. 44-45). Given his conclusion, Justice Collins did not consider whether either witness had an independent source upon which to base his identification of petitioner.

  Shortly thereafter, on February 16, 1995, the jury was selected, sworn, and given preliminary instructions. No trial was held the next day. During that day, on February 17, the ADA appears to have spoken with Patterson, and reviewed some police reports, presumably in preparation for trial. It was on that day that the ADA first discovered that Patterson had actually been shown the photo array two, separate times. The first time, Patterson failed to identify petitioner as the shooter. The second time, which took place approximately one week later, Patterson identified petitioner as the shooter. The second occasion is the one that Detective Martinez testified about at the Wade hearing; the first occasion had not been mentioned at the Wade hearing. Once the ADA learned about the earlier display of the photo array, he notified Henriksen by telephone. Upon learning about the earlier display of the photo array, Henriksen did nothing to seek to reopen the Wade hearing, and thus missed an opportunity to explore the circumstances surrounding Patterson's inconsistent identifications, including exploring whether Patterson was contacted by anyone during the week separating the two photo arrays.

  On February 21, the trial was scheduled to begin. Before the jury was called into the courtroom, the ADA informed Justice Collins about the earlier photo array, and told Justice Collins that the ADA found out about the earlier photo array only on Friday, February 17, when he was reviewing the police reports and speaking with Patterson. The ADA then stated that upon learning that Patterson had been shown the photo array on one previous occasion, and had failed to identify petitioner as the shooter, the ADA questioned Patterson about it; Patterson responded that he had recognized petitioner as the shooter "in his own mind" when he first saw the photo array, but he did not identify petitioner to the police at that time because "he was too afraid to say who did it." (Trial Tr. 15). Henriksen did not say anything to Justice Collins after the ADA brought these facts to the court's attention. Opening statements began later that day.

  At petitioner's trial, no physical evidence was offered that linked petitioner to the shootings. The only evidence offered that inculpated petitioner was the eyewitness testimony of Patterson and Quinones, both of whom made courtroom identifications of the petitioner as the shooter. The jury learned limited information about Arriaga's prior involvement in the investigation. In the ADA's opening statement, he told the jury that Arriaga had initially been arrested and charged with the shootings, but that Arriaga was released because the charges against him were unfounded. (See Trial Tr. 32). Detective Martinez testified briefly on direct examination about Arriaga's arrest and subsequent release as well (see id. at 157-58), and he was cross-examined on the subject more extensively by Henriksen (see id. at 208-14, 230-38). Henriksen did not offer any testimony or documentary evidence pertaining to the manner in which Arriaga was apprehended, namely, that he was found near the crime scene hiding underneath a car while being assaulted by a crowd. Henriksen also did not question Quinones about his apparent statement to Detective Martinez that he "couldn't recognize the person" who committed the crime. (Wade Hearing Tr. 34).

  Following his jury trial in Bronx County Supreme Court, petitioner was convicted of Murder in the Second Degree and Attempted Murder in the Second Degree. Petitioner was sentenced to an indeterminate term of incarceration of twenty years to life on the Murder count, and six to twelve years on the Attempted Murder count. Petitioner is serving the sentences concurrently.

  II. Procedural History

  On direct appeal, petitioner's appellate counsel argued that Henriksen was ineffective: (1) for failing to move to reopen the Wade hearing; (2) for failing to cross-examine Quinones about Quinones's statement to Detective Martinez shortly after the crime that "he couldn't recognize the person" who committed the crime, (Wade Hearing Tr. 34); and (3) for failing to properly argue for the admissibility of a portion of Detective Beers's police report containing Detective Beers's personal observation that he "pulled [Arriaga] out from under the rear of a car, while [Arriaga was] being assaulted by the crowd." (See Def.'s Br., at 36, Wanderman Aff., Exh. 1). On June 25, 1998, the Appellate Division, First Department, unanimously affirmed petitioner's conviction. See People v. Lynn, 251 A.D.2d 250, 673 N.Y.S.2d 913 (1st Dep't 1998). On December 2, 1998, petitioner's application for leave to appeal to the New York Court of Appeals was denied. See People v. Lynn, 92 N.Y.2d 1035, 684 N.Y.S.2d 500 (1998).

  On June 24, 1998, petitioner moved, pro se, to vacate his conviction, pursuant to N.Y.C.P.L. § 440.10. Petitioner claimed that Henriksen was ineffective because he failed to investigate petitioner's claim that he was misidentified, and he failed to call two exculpatory witnesses who could have testified that someone else committed the crime. (See Notice of Motion to Vacate Judgment, Wanderman Aff. Exh. 4). On January 21, 1999, the motion was denied as untimely, and as having been previously determined on the merits in petitioner's direct appeal. (See Decision of the Hon. John P. Collins, Wanderman Aff. Exh. 5). Petitioner next sought to reargue his section 440.10 motion, this time attaching the grand jury testimony of the two witnesses who initially identified Arriaga as the shooter. (See Notice of Motion for Reargument, Wanderman Aff. Exh. 6). That motion was denied on July 7, 1999. (See Decision of the Hon. John P. Collins, Wanderman Aff. Exh. 7).*fn2 Petitioner's application for leave to appeal the denial of his section 440.10 motion was denied on October 20, 1999. (See Wanderman Aff. Exh. 8).

  In June 2000, petitioner filed this petition for writ of habeas corpus. Petitioner initially argued that Henriksen was ineffective for the three reasons cited in his direct appeal, as well as the new reason cited in his section 440.10 motion (i.e., that Henriksen failed to elicit testimony from two exculpatory witnesses). Respondent moved to dismiss the petition for failure to exhaust state remedies. In a Memorandum Opinion and Order dated March 16, 2004, Judge Katz concluded that the only unexhausted claim was the one raised in petitioner's section 440.10 motion. Because petitioner had indicated his willingness to abandon that claim and proceed on the exhausted claims, Judge Katz dismissed the petition with respect to the unexhausted claim only, and denied respondent's motion to dismiss the petition with respect to the three fully exhausted claims. Respondent did not appeal that decision. On April 26, 2004, Judge Katz issued a Report recommending that petitioner's claim for ineffective assistance of counsel with respect to his three exhausted claims be denied on the merits. Petitioner filed objections to the Report, dated May 3, 2004, as well as supplemental objections, dated June 4, 2004, pursuant to Court order.*fn3 Respondent filed no objections to the Report, and did not respond to petitioner's objections.

  III. Discussion

  A. AEDPA Standard of Review

  When a prisoner files a section 2254 petition regarding a claim that was adjudicated on the merits by a state court, the state court's decision is entitled to deference. The Appellate Division's denial of relief based on ineffective assistance of counsel constituted an adjudication on the merits. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Pursuant to section 2254(d)(1), the petition must be denied unless petitioner can establish that the state court's adjudication (1) was contrary to clearly established federal law, or (2) involved an unreasonable application of clearly established federal law. See Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding that independent meaning must be given to the phrases "contrary to" and "unreasonable application of" in 28 U.S.C. § 2254(d)(1)). Because the Appellate Division's decision was not contrary to clearly established federal law,*fn4 the only question to be resolved is whether its decision involved an unreasonable application of clearly established federal law to the facts of petitioner's case.

  The Appellate Division's decision would be unreasonable only if it were "objectively unreasonable," Williams, 529 U.S. at 409, which requires a finding that the state court decision involved "[s]ome increment of incorrectness beyond error." Sellin, 261 F.3d at 315 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). That increment need not be great, however, lest habeas relief be limited to those state court decisions that are "so off the mark as to suggest judicial incompetence." Francis S., 221 F.3d at 111 (quoting Matteo v. Superintendant, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999) (in banc)).

  B. Ineffective Assistance of Counsel

  It is well-settled that ineffective assistance of counsel claims are evaluated in accordance with the two-prong test pronounced in Strickland. Under Strickland, a defendant must prove (1) that his counsel's performance "fell below an objective standard of reasonableness" based on "prevailing professional norms," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694.

  In assessing whether counsel's performance was ineffective, courts "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) (internal quotations omitted). In assessing whether there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different, courts must ultimately determine whether the errors have "undermine[d] confidence in the outcome." Id. at 204 (quoting Strickland, 466 U.S. at 694). Thus, where there is overwhelming evidence of the defendant's guilt, counsel's unprofessional errors will often be insufficient to support a defendant's ineffective assistance claim. See United States v. Reiter, 897 F.2d 639, 645 (2d Cir. 1990). However, where a verdict is only weakly supported by the record, it is more likely that the verdict was affected by counsel's errors, and that habeas relief is therefore appropriate. Strickland, 466 U.S. at 696.

  In this case, petitioner argues that Henriksen committed three separate errors, each of which constitutes ineffective assistance of counsel. Although the Court addresses each error in turn, the Court ultimately reviews the totality of the evidence in the case, and therefore considers the effect of Henriksen's errors upon his performance in the aggregate. See Lindstadt, 239 F.3d at 199. The Court is also mindful that in considering the totality of the evidence that was placed before the jury at trial, "some errors [] have . . . a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture. . . ." Id. (quoting Strickland, 466 U.S. at 695-96).

  1. Henriksen's Deficient Performance

  a. Failure to Move to Reopen the Wade Hearing Henriksen failed to move to reopen the Wade hearing after learning that Patterson had actually viewed the same photo array twice within one week, and had identified petitioner to the police only the second time. The purpose of such a motion would have been to inquire into the circumstances surrounding Patterson's inconsistency. In disposing of this claim, the Appellate Division stated that Henriksen "made appropriate pre-trial and trial motions and applications." Lynn, 251 A.D.2d at 250.

  In gauging the effectiveness of an attorney's performance, it is generally appropriate to hold an evidentiary hearing to provide the attorney with the opportunity to discuss his or her decisions at trial. See Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) ("[A] district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs."). See also Harris v. Senkowski, 298 F. Supp. 2d 320, 330-34 (E.D.N.Y. 2004) (describing the Court's questioning of Harris's trial counsel at a habeas hearing). Unfortunately, Henriksen passed away in July 1997 — about six months prior to the date petitioner first challenged Henriksen's effectiveness in a brief to the Appellate Division on direct appeal. (See Respondent's Brief to the Appellate Division, at 11 n. 5, Wanderman Aff. Exh. 2). Although the Court cannot, therefore, question Henriksen about his conduct at trial, the Court also cannot fault petitioner for not developing the record further on this point.*fn5

  Even in the absence of Henriksen's testimony, it is reasonable to infer that his failure to move to reopen the Wade hearing was not due to some "sound trial strategy." Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003). Given the fact that the State's entire case hinged on the eyewitness testimony of Patterson and Quinones, it is inconceivable that Henriksen did not move to reopen the Wade hearing.*fn6 The transcript indicates that Henriksen remained completely silent when the ADA informed Justice Collins of this new information (see Trial Tr. 15-16), and he never spoke a word about it throughout the remainder of the trial. Although the Court agrees with the Appellate Division's general description of Henriksen's conduct at trial, which was, at times, quite good, Henriksen's conduct at other points in the trial cannot excuse his objectively unreasonable failure to seek a new Wade hearing.

  Respondent argues that Henriksen's failure to move to reopen the Wade hearing was reasonable, because no "additional pertinent facts" were revealed subsequent to the resolution of the initial Wade hearing. Cf. N.Y.C.P.L. § 710.40(4). Respondent supports that statement by contending that the ADA disclosed nothing new when he revealed that Patterson had looked at the photo array on a previously-undisclosed occasion. Respondent bases this version of the facts on its contention that Patterson actually identified petitioner both times he viewed the photo array, albeit the first time only "in his own mind." (See Respondent's Brief to the Appellate Division, at 16, Wanderman Aff. Exh. 2) ("Mr. Patterson was not unable to identify appellant when he was shown the array for the first time. On the contrary, he recognized appellant, but refused to disclose this information to Detective Martinez."); Supplemental Affidavit in Opposition, at 6 ("Mr. Patterson stated that he recognized the shooter but was `too afraid to say who did it'"). There is no evidence to support this statement — there is only the ADA's statement to Justice Collins that this is what Patterson told him when asked about the prior display of the photo array. (Trial Tr. 15). Cf. R. Evid. 801(c). Patterson was presumably not under oath when he allegedly made this statement, and Patterson was never questioned about it during the trial. The Court thus rejects respondent's argument.

  b. Failure to Cross-Examine Quinones with Respect to his Earlier Statement to Police

  Detective Martinez testified at the Wade hearing that he spoke with Quinones on February 20, approximately two weeks after the day of the shootings. Detective Martinez testified that Quinones told the police that Arriaga was not the shooter. In response to Henriksen's question at the Wade hearing: "Well, did [Quinones] tell you at that time that he couldn't make an I.D.?", Detective Martinez testified "I believe his exact words was he couldn't recognize the person." (Wade Hearing Tr. 34).*fn7 Although Henriksen questioned Quinones at the trial about the February 20 meeting at the District Attorney's Office, Henriksen failed to ask Quinones about this statement.

  Respondent argues that Henriksen made a strategic decision to forego this line of questioning, because if Quinones had been confronted with his February 20 statement, he would have testified that at the time he spoke with the police he was still concerned about his own safety and the safety of his family. Quinones, however, had already testified on both direct and cross-examination that the reason he initially told the police he saw nothing was that he was afraid to come forward. (See Trial Tr. 281-83, 290). Petitioner would thus have suffered no added prejudice if Henriksen had elicited an admission from Quinones that he told Detective Martinez on February 20 that he was unable to identify the shooter. The jury, however, would have heard testimony about a second occasion on which Quinones spoke with the police, failed to implicate petitioner, and told the police that he was incapable of making an identification of the shooter. This fact, which was otherwise not presented to the jury at trial, would have impeached Quinones's subsequent identification, with little or no risk to petitioner's defense.

  If Quinones were to have denied making such a statement to Detective Martinez on February 20, the jury would have had an additional basis on which to question Quinones's credibility. "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." People v. Carter, 227 A.D.2d 661, 663, 641 N.Y.S.2d 908 (3d Dep't 1996) (quoting Richardson on Evidence § 6-411 at 406 (Farrell 11th ed.). Because Quinones's lack of credibility was central to the defense, Henriksen's failure to attempt to impeach Quinones with this line of questioning fell below the objective standard of reasonableness. See Harris, 298 F. Supp. 2d at 338-39 (collecting cases in which counsel was found to be ineffective for failing to adequately challenge the credibility of identification witnesses).

  c. Failure to Introduce into Evidence a Portion of Detective Beers's Police Report

  During Henriksen's questioning of Detective Martinez, Henriksen attempted to introduce into evidence Detective Beers's police report, which contained both information regarding what Detective Beers personally witnessed, and information from two individuals who told Detective Beers that they witnessed Arriaga shoot the victims. Henriksen argued only that the entire document was admissible as a business record; Henriksen failed to distinguish the portion of the report containing Detective Beers's personal observations from the portion of the report containing information obtained from lay eyewitnesses. (Trial Tr. 220).*fn8 Justice Collins excluded the police report in its entirety, based upon his conclusion that the business records exception to the hearsay rule was inapposite where the citizens whose statements are recorded in the police reports were under no business duty to speak with the police. (Trial Tr. 229). Under New York law, Justice Collins correctly excluded the portion of the police report containing statements of lay witnesses; however, the portion of the report containing Detective Beers's personal observations was admissible under New York law.*fn9 Had Henriksen argued, as he should have, that the report's recitation of what Detective Beers saw was admissible, Justice Collins would likely have admitted that portion of the police report, and the jury would have heard that Detective Beers personally observed Arriaga hiding underneath a car several blocks from the scene of the crime, and that Detective Beers pulled Arriaga out from under the car while Arriaga was being assaulted by a crowd of people.

  The Appellate Division did not address whether Henriksen's failure to pursue the admissibility of that portion of Detective Beers's report was deficient. Judge Katz's Report concludes that Henriksen may have had strategic reasons for choosing not to press the admissibility of that portion of Detective Beers's report. Specifically, the Report posits that the jury was already aware that Arriaga had initially been arrested for this crime, and that further questioning regarding the circumstances surrounding his arrest would have invited additional testimony by government witnesses regarding the reason the charges against Arriaga were dropped. Respondent states that the ADA would have sought to introduce evidence of the dismissal of the charges against Arriaga, if defendant had introduced the portion of Detective Beers's report relevant to Arriaga. The Report concludes that "[i]t was to Petitioner's advantage for that issue to have been kept vague." (Report at 18).

  Henriksen was not pursuing that strategy, however. Rather, the record reflects that Henriksen's failure to argue for the admissibility of the portion of Detective Beers's report containing the detective's own personal observations resulted from Henriksen's lack of understanding of the relevant evidentiary rules, and his failure to distinguish between those portions of the reports that were inadmissible (e.g., recorded, lay eyewitness statements), and the portion of Detective Beers's report that was admissible (e.g., Detective Beers's record of what he personally observed and did). During his colloquy with Justice Collins regarding the business records exception to the hearsay rule, Henriksen admitted to having a "confused understanding of this section [of the C.P.L.R.]. . . ." (Trial Tr. 220). After Justice Collins explained the problem with Henriksen's invocation of that rule, Henriksen asked meekly "but isn't the book keeping rule (i.e., the business records rule] an exception to the hearsay rule?" (Trial Tr. 225). It is clear from the transcript that Henriksen had not made a strategic decision not to introduce this portion of Detective Beers's report. Rather, Henriksen's failure to press the admissibility of this piece of evidence was the result of "oversight, carelessness, ineptitude or laziness," Eze, 321 F.3d at 112, and cannot be excused.

  Even if it were the case that Henriksen was pursuing the trial strategy suggested by the Report, (i.e., that he chose not to press this issue because he did not want to invite the ADA to present evidence about the reason charges against Arriaga were dropped), that strategy cannot be described as "sound" on the facts of the case. It was no secret that Henriksen was going to argue to the jury that Arriaga was the real shooter in this case; the trial transcript demonstrates that in the questions leading up to the respondent's objection to the introduction of the police reports, Henriksen was strongly pursuing a defense that Arriaga was the shooter, notwithstanding the fact that the charges against him had been dismissed. (Trial Tr. 208-14). When trial resumed following Justice Collins's ruling on the inadmissibility of the police reports, Henriksen continued questioning Detective Martinez about the circumstances surrounding Arriaga's arrest. (Trial Tr. 230-34, 237-44, 249-53). There is no basis for concluding that Henriksen was following the proposed strategy of avoidance, and if he was, he certainly does not appear to have been pursuing that strategy consistently and soundly.

  d. Henriksen's Conduct was Objectively Unreasonable

  Taken together, and viewed in light of the evidence presented at trial, Henriksen's errors fell "outside the wide range of professionally competent assistance." Lindstadt, 239 F.3d at 204 (quoting Strickland, 466 U.S. at 690). Henriksen had two principal lines of defense: (1) to attack the credibility of the two eyewitness, and (2) to introduce evidence suggestion that Arriaga was the shooter. He failed to do either competently.

  Henriksen could have renewed his motion to suppress Patterson's identification of petitioner by moving to reopen the Wade hearing. In addition, Henriksen could have used information available to him to impeach Quinones, by questioning Quinones about Quinones's statement to Detective Martinez that he "couldn't recognize the person" who committed the crime. Henriksen inexplicably failed to do either, and Henriksen gave no indication on the record that he was aware of either option. Henriksen also could have introduced potent evidence that Arriaga was the shooter, which would have given the jury a plausible, alternative scenario to one implicating petitioner. He failed to introduce uncontradicted evidence that (1) Arriaga was found hiding under a car near the crime scene right after the shooting, and (2) that Arriaga was being assaulted by a gathering crowd when the police apprehend him. Henriksen's failure to properly argue for the admissibility of this evidence resulted from his unfamiliarity both with the documentary evidence and with the evidentiary rules.

  When viewed in the aggregate, Henriksen's conduct at trial was objectively unreasonable; petitioner has met the first prong of Strickland.

  2. Prejudice

  The next issue is whether petitioner has proven that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "When a defendant challenges a conviction [on the basis of ineffective assistance of counsel], the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695. To make this determination, courts consider whether counsel's errors have undermined the court's confidence in the result reached. See Lindstadt, 239 F.3d at 204. As stated above, this determination is necessarily tied to the strength of the evidence of the defendant's guilt. It is therefore highly relevant that the only evidence in support of petitioner's guilt came from the eyewitness testimony of Patterson and Quinones.*fn10 No other witnesses placed petitioner at the scene of the crime, no physical evidence tied petitioner to the crime, and no firearm was ever recovered.

  a. The Wade Hearing

  The Appellate Division held that petitioner failed to demonstrate that the Wade hearing would have been reopened upon such a motion, "or that a reopened hearing would have resulted in suppression of any evidence." Lynn, 251 A.D.2d at 250-51. The Report concludes that petitioner failed to demonstrate, or even allege, any facts that would make it likely that the outcome of his trial would have been different had the Wade hearing been reopened. (See Report at 14-15).

  On the record developed at trial, it is impossible to conclude what the result of a reopened Wade hearing would have been. The Court is nevertheless concerned about Patterson's inconsistencies. Patterson testified that he was too afraid to tell the police what he witnessed when he was questioned in February 1992 (Trial Tr. 70), and the ADA told Justice Collins that Patterson continued to be afraid in September 1992, seven months later, when Patterson failed to identify petitioner when first shown the photo array. However, just one week later, when Patterson was shown the photo array a second time, Patterson identified petitioner as the shooter. Henriksen's inexplicable failure to move to reopen the Wade hearing prevents the Court from determining whether Patterson's sudden turnaround was the result of any undue suggestiveness or any other impropriety. The Court cannot, therefore, conclude whether Patterson's in-court identification could have been impeached, or even suppressed. However, the Court can conclude that when Henriksen failed to move to reopen the Wade hearing to question Detective Martinez or Patterson about these inconsistencies, neither impeachment, nor suppression, were possible.

  b. Quinones's Testimony

  The Appellate Division concluded that petitioner failed to demonstrate that he was prejudiced by Henriksen's failure to cross-examine Quinones about Quinones's apparent statement to Detective Martinez that he "couldn't recognize the person" who committed the crime. Judge Katz concluded that petitioner was not prejudiced by the omission, in part because Quinones admitted at trial that on the day of the shooting he told police that he did not know anything about the shooting. (See Report at 17; Trial Tr. 290). The Report concludes that it would not have added anything to question Quinones about the statement he apparently made two weeks later that he was unable to identify the shooter.

  The Court disagrees with the Report's conclusion, because there is a clear difference between the testimony that was elicited at trial and the testimony that was not elicited. The testimony that was elicited at trial was that Quinones told the police at the scene of the crime that he did not see anything, but that after speaking with Arriaga's attorney at the urging of Arriaga's mother and Quinones's friend, Quinones decided to meet with the district attorney and the police to tell them what he saw. (Trial Tr. 282-84). The testimony that was not elicited was that when Quinones met with the district attorney and the police and first described to them what he witnessed, Quinones apparently told Detective Martinez that he could not recognize the shooter. Had Henriksen questioned Quinones about this statement, it would have considerably undermined Quinones's identification of petitioner. Had Quinones admitted that he made the statement, the jury would have had another reason to question Quinones's identification. Had Quinones denied that he made the statement, notwithstanding Detective Martinez's sworn testimony, Quinones's credibility would have been substantially impeached.

  c. Detective Beers's Police Report

  The Appellate Division concluded that petitioner failed to show that the outcome of the trial would have been affected if observations recorded by Detective Beers in his police report had been admitted. Lynn, 251 A.D.2d at 251. Judge Katz agreed, and observed that because the jury was already aware that Arriaga had previously been arrested for the shootings, "[t]hat [Arriaga] was pulled out from underneath a car, or that a crowd had assaulted him, was of no material significance." (Report at 18).

  The Court cannot agree with the Report's conclusion. It is true, as the Report notes, that the jury was aware of the fact that Arriaga had been initially arrested for the shooting, and that he had been brought before a grand jury. However, the circumstances surrounding his arrest — that he was pulled out from underneath a car one or two blocks away from the crime scene, while being assaulted by a crowd of people — were never presented to the jury. Far from being of "no material significance," those facts provide strong circumstantial evidence from which the jury could have concluded that Arriaga was, in fact, the shooter.

  Respondent contends that if Henriksen had successfully introduced into evidence these additional details of Arriaga's arrest, the ADA would have chosen to present further evidence concerning the dismissal of charges against Arriaga. This may be true, but it is highly doubtful. The record demonstrates clearly that Henriksen made Arriaga's arrest a key element in his defense, and yet the ADA chose not to attempt to introduce the evidence he claims he had at his disposal. There is no reason to now credit the respondent's post hoc statement that it would have introduced additional evidence had this one piece of evidence been admitted. Even if it were the case that the ADA would have introduced additional evidence pertaining to the dismissal of charges against Arriaga, it is not at all clear that that evidence would have eliminated the reasonable doubt that most probably would have been created in the jury's mind by the evidence contained in Detective Beers's report.

  d. Confidence in the Outcome

  Petitioner was convicted based solely upon the testimony of two eyewitnesses. By failing to move to reopen the Wade hearing, Henriksen forfeited the possibility of exploring facts critical to Patterson's identification of petitioner. Had Henriksen not committed this error, sufficient facts might have been developed to impeach, or even suppress entirely, Patterson's identification of petitioner. By failing to question Quinones about his prior statement to Detective Martinez that he could not identify the shooter, Henriksen missed a crucial opportunity to either substantially undermine Quinones's identification of petitioner, or impeach Quinones's credibility. Finally, by failing to successfully introduce into evidence Detective Beers's report detailing the arrest of Arriaga, Henriksen failed to present to the jury strong circumstantial evidence of Arriaga's guilt that itself probably would have raised a reasonable doubt about petitioner's guilt.

  Together, these errors seriously undermine the Court's confidence in the outcome reached at trial. Had Henriksen's conduct met the professional standard expected, the jury would likely have found reasonable doubt. Cf. Eze, 321 F.3d at 137-38.

  IV. Conclusion

  For the reasons stated above, the Court concludes that the Appellate Division's denial of petitioner's ineffective assistance of counsel claim was more than erroneous — it was "objectively unreasonable." Williams, 529 U.S. at 409. The petition for writ of habeas corpus is GRANTED. Respondent is directed to release petitioner from custody unless he is retried within sixty days.

  The Clerk of the Court is directed to close this case. Petitioner's motion to expand the record [Docket # 20] is GRANTED. Any other pending motions are moot.

  SO ORDERED.


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