The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
Petitioner Jose Garcia was convicted in New York Supreme Court, Bronx
County, in 1993 for the second-degree murder of Cesar Vasquez and
sentenced principally to a term of imprisonment of 25 years to life.
The conviction was affirmed by the First Department, and leave to
appeal to the Court of Appeals was denied,*fn1 as were
motions in the state court for post-conviction relief.*fn2
Garcia now seeks a writ of habeas corpus, contending that he
(a) received ineffective assistance of counsel at trial, and (b)
actually is innocent of the crime of which he was convicted. In a
report and recommendation, dated August 30, 2006 (the "Report and
Recommendation"), Magistrate Judge Kevin N. Fox recommended that the
petition be granted. Respondent objects.*fn3
Cesar Vasquez was murdered on July 16, 1991, around 11:45 p.m. in the Bronx. Petitioner Jose Garcia was apprehended on August 2, 1991, and charged with second degree murder.
Garcia long has maintained his innocence and, indeed, that he was in the Dominican Republic when Vasquez was murdered. He contends that he was arrested at La Union International Airport in Puerto Plata, Dominican Republic, on July 15, 1991, for attempting to travel with false papers. He was jailed overnight and released on July 16, the day of the murder, after his wife posted bail. Garcia claims that he remained in the Dominican Republic until he flew to the United States and was arrested on August 2, 1991, for entering illegally. The jury, however, heard almost nothing of this alibi.
Garcia was represented at trial by Jorge Guttlein, Esq. Before commencement of the trial, Guttlein submitted an amended alibi notice*fn4 stating that he intended to present evidence that Garcia was not in the Bronx at the time of Vasquez's murder, including (1) documents concerning Garcia's August 2, 1991 arrest in California for attempting to enter the United States illegally, (2) "[r]eports from the [Dominican national police] regarding Mr. Garcia's incarceration during the relevant time period in the Dominican Republic on July 16, 1991 for seeking to leave the Dominican Republic with false papers," (3) the testimony of Gabriella Peña regarding Garcia's departure to the Dominican Republic on June 22, 1991, and (4) the testimony of Ana Ortega regarding Garcia's incarceration in the Dominican Republic.*fn5
Guttlein attached documents to the alibi notice tending to show that Garcia was incarcerated in the Dominican Republic on July 15, 1991 and released the following day, including (1) a form reflecting Garcia's release on bail on July 16, 1991 from a Dominican jail, (2) a certification of the form, (3) a certification of the certification by an official of the Dominican State Department, and (4) a certification by a United States Embassy official of the signature and seal of the official of the Dominican State Department (the "Alibi Notice Documents").*fn6
Guttlein twice stated to the trial court that he intended to offer these documents, but that their admissibility might be open to question. He raised the issue first at a pretrial hearing, stating that he had documents "certified by the American consulate as being official records of the Dominican Republic" that tended to show that Garcia was incarcerated in the Dominican Republic on July 16, 1991. He requested the opportunity to address the issue of whether additional certification from the Dominican consulate was required for the documents to be admissible. The trial court postponed discussion of the issue indefinitely.*fn7
Guttlein next raised the issue shortly after opening statements, outside the presence of the jury. He stated again that he was unsure whether the Alibi Notice Documents required additional certification from the Dominican consulate, and the parties and trial court briefly discussed the issue of authentication of foreign public records.*fn8 The trial court expressed doubt as to the documents' admissibility and suggested that Guttlein brief the issue.*fn9 Guttlein, however, filed no brief. Nor did he ever offer the documents into evidence.
The prosecution's case consisted almost entirely of the testimony of Penny Denor.
Denor testified that, on July 16, 1991, the night of the murder, she looked out of her fourth-floor window for her fourteen-year-old son. After seeing her son directly beneath her window, she saw three men with handguns get out of a blue vehicle that was double-parked nearby. She looked at the face of the driver and his gun. She testified that she saw also the man who got out of the right front seat, noticing in particular his flowered shirt, and the other passenger, another man. Fearing for her son's safety, she ran down the hallway and stairs to the courtyard and heard five or more gunshots. When she arrived in the courtyard, she saw a body on the ground and then saw three men run through the gate and get into the blue vehicle.*fn10
Denor made an in-court identification of Garcia as the front seat passenger.*fn11 Further, she testified that she had been present at a lineup approximately five months after the murder. Detective Pezzullo testified that Garcia had been in the number five position.*fn12 Denor said that she initially had identified someone other than the man in the number five position. Immediately upon leaving the lineup room, however, she said she had told Detective Pezzullo that she had identified the wrong person and that she had known all along that the person she meant to identify was the individual in the number five position.*fn13
a. Cross-Examination of Denor
Guttlein vigorously attempted to discredit Denor, establishing on cross-examination that Denor had been under the effects of Valium on the night of the murder, that Valium made her sleepy, and that she was on Thorazine during the trial.*fn14
Guttlein exposed also a number of inconsistencies in Denor's testimony. The first concerned Denor's lineup identification. Denor testified that the first man she identified in the lineup had been in the number four position. At a previous hearing, however, she had acknowledged that the transcript from the lineup reflected that the man she initially identified had been in the number two position.*fn15
The second inconsistency concerned Denor's description of the passenger as having worn a flowered shirt. Guttlein established that Denor had testified at a previous proceeding that it was the driver and not a passenger who had worn the flowered shirt.*fn16 Moreover, a police officer who interviewed Denor on the night of the murder testified that, according to his interview notes, Denor then described the three men as having worn hooded sweatshirts, with no mention of a flowered shirt.*fn17
Guttlein called a single witness, Griselda Vasquez, the victim's sister. Ms. Vasquez testified that, on July 16, 1991, she looked out her window and saw a man get into a car. She then realized that her brother was lying on the ground and ran down the stairs to the courtyard where she found him dead. Ms. Vasquez stated that she had known petitioner as a friend of her brother's, that she had seen him before many times, and that she had not seen him outside her window on the night of the murder.*fn18 In addition, Ms. Vasquez testified that she had spoken to Garcia by telephone shortly after the murder and that he was in the Dominican Republic at the time.*fn19 The prosecution established on cross-examination, however, that Ms. Vasquez had no personal knowledge of Garcia's whereabouts at the time, as she had not dialed the telephone.*fn20
4. The Trial's Conclusion
In closing, Guttlein emphasized the weakness of the prosecution's case, Denor's lack of credibility, and the fact that the victim's own sister exculpated Garcia. He commented upon Ms. Vasquez's belief that Garcia had been in the Dominican Republic when she spoke to him after the murder in a single sentence.*fn21
Garcia was convicted and sentenced. He now contends that Guttlein's failure to present his alibi was constitutionally deficient representation.
The relevant details of Garcia's state post-conviction proceedings are set forth in Garcia v. Portuondo ("Garcia II"),*fn22 familiarity with which is assumed.
On May 10, 1999, Garcia filed a petition for a writ of habeas corpus, raising no claims but asking instead for an extension of time in which to file an application for habeas relief. This Court granted respondent's motion to dismiss the petition as untimely.*fn23 Returning to state court, Garcia on September 1, 2000 filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10.*fn24 The New York Supreme Court, Bronx County, denied the motion on December 7, 2000, stating that "[a] review of the trial record fails to substantiate allegations of ineffective assistance of counsel."*fn25
On April 12, 2002, petitioner sought leave to file a successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b),*fn26 arguing that his initial petition had not been a habeas petition but a request for an extension of time. The Second Circuit denied the successive petition application as unnecessary because Garcia's initial petition had not raised any claims and therefore had not been decided on the merits, and transferred the matter to this Court.
Garcia now argues that the state court's December 7, 2000 decision denying his motion to vacate was "an unreasonable application of clearly established Federal law" under 28 U.S.C. § 2254(d)(1).*fn27
In November 2002, this Court denied respondent's motion to dismiss the petition as untimely, finding that the statute of limitations was tolled because Garcia's was one of the "exceedingly rare case[s] in which the petitioner makes out a credible claim of actual innocence."*fn28 It appointed counsel and referred the matter to Magistrate Judge Kevin N. Fox.
Judge Fox held a hearing that confirmed that Guttlein had documentary evidence that Garcia was in the Dominican Republic on the day of the murder and knew of several witnesses who were willing to corroborate Garcia's story. It revealed also that Guttlein, had he conducted a proper investigation, would have discovered even more evidence to bolster Garcia's defense.
1. Evidence Available at the Time of Trial
Guttlein stated in his affidavit that at the time of trial he had possessed the Alibi Notice Documents, which Garcia's family members provided him.*fn29 In addition, he testified at the hearing that he possessed copies of three additional documents, signed by Dominican police officers, describing Garcia's arrest on July 15, 1991 for attempting to travel on a passport in the name of Ferdinand Caraballo, his detention, and his presentment on a complaint on July 16, 1991 (the "Dominican Police Documents").*fn30 All three listed the number of the flight Garcia attempted to board on July 15, included the number of the fictitious passport and tourist card Garcia was trying to use, and noted that the forged documents were in the name of Ferdinand Caraballo. One of these statements listed Garcia's national identity number,*fn31 and another was certified as being a true copy of the original document.*fn32
Guttlein testified that he made no efforts to verify the authenticity of any of the documents in his possession. Nor did he seek to obtain additional documentary evidence that would have supported Garcia's alibi.*fn33
Guttlein knew also that several witnesses were prepared to testify to Garcia's alibi. As the alibi notice indicated, Guttlein knew that Gabriella Peña, Garcia's girlfriend at the time of the murder,*fn34 could have testified that Garcia traveled to the Dominican Republic on June 22, 1991, and that Ana Ortega, Garcia's wife, could have testified that Garcia was incarcerated in the Dominican Republic and released on the day of the murder.
Further, Guttlein stated in his affidavit that he was aware that Ortega's mother and other witnesses could have testified to Garcia's presence in the Dominican Republic at the time of the murder. He stated that he believed these individuals would have provided truthful testimony, but that he did not interview them because they were relatives and friends of Garcia's wife and therefore were not likely to have been credited by the jury.*fn35 Ortega testified also that she told Guttlein that Garcia had been with her in the Dominican Republic at the time of the murder and that her mother, Isabel Filpo (sometimes Batista), her cousins, Leonora and Cristian Filpo, and her friend, Alsacia Encarnacion, could have backed up her story.*fn36
The hearing revealed also that Guttlein would have discovered more evidence to support Gacria's alibi if he had looked for it. In conducting their own investigation, Garcia's current appointed counsel obtained (1) a copy of Garcia's Dominican national identity card, authenticated through Ortega's testimony,*fn37 bearing Garcia's photograph and national identity number;*fn38 (2) an arrest intake form, identifying Garcia by name and national identity number, showing that Garcia was arrested in the Dominican Republic on July 15, 1991, which the parties stipulated was shown to Garcia's current legal team at the Puerto Plata precinct of the Dominican national police;*fn39 (3) a Dominican bail document ordering Garcia's detention until payment of bail,*fn40 which Ortega testified she was given at the Puerto Plata courthouse after paying Garcia's bail and presented it at the police station to obtain his release;*fn41 (4) a copy of an airline ticket in the name Ferdinand Caraballo for a flight on June 22, 1991 from New York to Puerto Plata, with a return flight scheduled for July 18, 1991,*fn42 which Garcia testified was given to him immediately before his arrest at the Puerto Plata airport on July 15, 1991;*fn43 (5) a receipt for the airline ticket, attached to a declaration of the president of Anabella Tours, Inc., a travel agency located in Bronx County, that the receipt was made during the regular course of the agency's business, maintained in the agency's records, and provided to Garcia's legal team after a search of those records;*fn44 and (6) a photocopy of an unused boarding pass for a July 15 flight from Puerto Plata to New York, again in the name Ferdinand Caraballo,*fn45 which Garcia testified he received at the Puerto Plata airport on July 15, shortly before being arrested for attempting to travel with false documents.*fn46
In addition, a thorough interview of Ortega and the individuals she informed Guttlein could have corroborated the alibi would have produced substantial testimonial evidence supporting Garcia's defense. Five witnesses submitted affidavits stating that Garcia was in the Dominican Republic before and after the murder to attend mourning services for his deceased friend, Australia Maria Sanchez (known as "Niña").*fn47 Two witnesses stated in affidavits that they saw or spoke with Garcia in Matanzas, Dominican Republic, between 7:00 and 8:00 p.m. on July 16.*fn48 One witness swore that she saw Garcia in Matanzas on the night of July 16.*fn49 Another, Alsacia Encarnacion, submitted an affidavit stating that she learned of the Vasquez murder after midnight on July 16, contacted Garcia and Ortega at their house in Matanzas, and brought them back to her house, where Garcia spoke with Griselda Vasquez by telephone.*fn50
Live testimony further corroborated the alibi. Encarnacion and Ortega testified before Judge Fox that Garcia attended Niña's prayer service on the night of July 16 and that Garcia was in Matanzas shortly after midnight when Encarnacion awakened him and he spoke with Griselda Vasquez.*fn51 Isabel Filpo (Batista) testified that Garcia was at her house on the evening of July 16 and that Garcia stayed with her in the Dominican Republic through the beginning of August.*fn52 Leonora Filpo, Cristian Filpo, and Alicia Burgos testified that they saw Garcia at several of Niña's prayer sessions.*fn53 Gabriella Peña testified that she spoke to Garcia by phone when he was in the Dominican Republic several days before the murder and that she discussed the circumstances of his July 15 arrest when they spoke again in early August.*fn54 Finally, Garcia himself testified to his alibi.*fn55
Not all of the new evidence was exculpatory. Respondent produced evidence indicating that Vasquez possibly was responsible for losing drugs that had belonged to Garcia and that both he and Garcia were romantically involved with the same woman,*fn56 thus establishing a motive. Moreover, respondent established that Denor had identified not only Garcia in a lineup, but also his co-defendant, a fellow drug dealer from the same block in the Bronx.*fn57
c. Garcia's Appellate Counsel
Finally, the hearing revealed that the file of Garcia's state court appellate counsel contained a copy of the June 22, 1991 airline ticket to the Dominican Republic in the name of Ferdinand Caraballo, with a return flight scheduled for July 18. It contained also a note from appellate counsel's then-law partner stating that Garcia's wife had visited his office and explained that Garcia had been incarcerated in the Dominican Republic until 3:00 p.m. on July 16, 1991.*fn58
Appellate counsel testified that he had had some correspondence with Garcia from 1993 to 1995, and that Garcia then had mentioned his July 15-16, 1991 detention in the Dominican Republic,*fn59 but had not mentioned the names of individuals who could have ...