Petitioner appeals from a judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge), denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254(d)(1). Petitioner contends that he is entitled to habeas relief because he was deprived of the effective assistance of counsel at trial. Because the District Court conducted additional fact-finding in order to adjudicate his claim, this appeal presents a question of first impression for our Court: Is the standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") for a claim resolved on the merits by a state court displaced when a federal district court conducts additional fact finding? We hold that AEDPA's deferential standard of review is not displaced and applies even when a district court conducts additional fact finding on habeas review. Applying that standard of review to the state court's decision, we conclude that it was an unreasonable application of clearly established federal law within the meaning of 28 U.S.C. § 2254(d)(1) for the state court to conclude that petitioner received the effective assistance of counsel at his trial. Accordingly, we reverse the judgment of the District Court and remand the cause. On remand, the District Court shall issue a writ of habeas corpus to petitioner by the sixtieth calendar day after the issuance of our mandate unless the District Attorney of Queens County has, by that point, taken concrete and substantial steps expeditiously to retry petitioner.
The opinion of the court was delivered by: JOSÉ A. Cabranes, Circuit Judge
Before: WALKER, CABRANES, and RAGGI, Circuit Judges.
Petitioner-Appellant George Wilson appeals from a judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge), denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254(d)(1). See Wilson v. Mazzuca, No. 01-CV-2246, 2007 U.S. Dist. LEXIS 22492, at *1 (E.D.N.Y. Mar. 28, 2007) ("Wilson VII"). Wilson contends that he is entitled to habeas relief because he was deprived of the effective assistance of counsel at trial in violation of the Sixth Amendment to the Constitution. See Strickland v. Washington, 466 U.S. 668 (1984). Because the District Court conducted additional fact finding in order to adjudicate that claim, this appeal presents a question of first impression for our Court: Is the standard of review prescribed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, for a claim resolved on the merits by a state court displaced when a district court conducts additional fact finding in habeas proceedings? We hold that AEDPA's deferential standard of review is not displaced under these circumstances; it applies to Wilson's petition even though the District Court conducted additional fact finding. Applying that standard of review to the state court's decision, we conclude that, but for the substantial errors committed by trial counsel, there is a "reasonable probability" that Wilson would not have been convicted. The state court's decision to the contrary was an unreasonable application of clearly established federal law. Accordingly, we reverse the judgment of the District Court denying habeas relief and remand the cause. On remand, the District Court shall issue a writ of habeas corpus to Wilson by the sixtieth calendar day after the issuance of our mandate unless the District Attorney of Queens County has, by that point, taken concrete and substantial steps expeditiously to retry Wilson.*fn1
At approximately 2:00 p.m. on December 22, 1992, Roger Erra was robbed at gunpoint by two men who entered Erra's scrap metal business in Queens, New York. One of the robbers, whom Erra later identified as Wilson, assaulted him and demanded cash. See Trial Tr. 425-27, Sept. 20, 1995. After the robbery, Erra called the police and described the first robber as "a six-foot tall 'lighter' 'male black,' weighing approximately two hundred thirty pounds." Wilson VII, 2007 U.S. Dist. LEXIS 22492, at *3. At the police precinct on the day of the robbery, Erra reviewed several photo albums or "mug books" containing "mug shots" of people arrested for a variety of felonies, and identified Wilson's photograph in one of these albums. Police were unable to locate or speak with Wilson. On October 27, 1994, Wilson was arrested for an unrelated offense-alleged extortion at a construction site. The following day, Erra picked Wilson out of a line-up, and Wilson was charged with first and second-degree robbery.
I. State Trial Proceedings
Wilson was brought to trial before Justice Charles LaTorella in New York State Supreme Court, Queens County, in September 1995. During his opening statement, Frank GaNun, who represented Wilson at trial, urged acquittal on the grounds of (1) mistaken identity and (2) insufficient police investigation. In light of the second line of defense, the prosecution argued that, during his opening statement, GaNun had "open[ed] the door to [Erra's prior] photo identification[.]"*fn2 Trial Tr. 389:23-24, Sept. 20, 1995. The trial court was ambivalent, but warned GaNun that "[i]f you ask those questions on cross-examination, I think you will have opened up the door[.]" Id. at 392:7-8.
The prosecution's first scheduled witness was Erra, but Erra did not appear, prompting the prosecutor to request a Material Witness Order. At a hearing regarding that application, the trial judge asked the prosecution: "[Erra] is not only your complaining witness, but he's virtually your principal witness and except for peripheral facts, he's essentially your only witness; is that correct?" Trial Tr. 329:18-22, Sept. 19, 1995. The prosecution agreed that it was, and the trial court issued the order.
Pursuant to that order, Erra testified on September 21, 1995. Under direct examination, Erra testified that he had chosen Wilson out of a line-up and made an in-court identification. On cross-examination, GaNun inquired about the reliability of Erra's identification, the contours of the police investigation-including whether the police questioned other witnesses and had made diagrams of the crime scene-and Erra's absence from court. See Wilson VII, 2007 U.S. Dist. LEXIS 22492, at *9-11. GaNun also asked Erra whether he feared Wilson, and Erra testified that he did, and was specifically afraid of "[r]eprisals." Trial Tr. 492:25, Sept. 21, 1995. This was the first time the jury heard testimony from Erra that he feared that Wilson would retaliate against him for testifying.
Following GaNun's cross-examination of Erra, the trial court concluded that, by attacking the reliability of the police investigation in his opening statement and cross-examination, GaNun had opened the door to Erra's initial identification of Wilson's photograph at the police precinct. On redirect examination, Erra confirmed his initial identification of Wilson, responding to the prosecutor's questions about "mug shot[s]." See Wilson VII, 2007 U.S. Dist. LEXIS 22492, at *11-12, *58. Although both terms conveyed to the jury that Wilson had been arrested previously, GaNun did not object. When the court inquired about the matter, GaNun stated, "Unfortunately, I probably didn't hear the word, 'mug[ ]shot.'" Trial Tr. 540:4-5, Sept. 21, 1995. The trial court then dealt with the question of how the "mug shot" itself would be shown to a jury. After initially observing that "there is no way that this jury is going to see the [booking plate] in front of the defendant's body," id. at 536:24-537:2, the trial court asked GaNun whether he wanted the plaque to be redacted from the photograph. GaNun responded, "I want the whole-I don't want any of the photograph going in. If it goes in, it's going to be in over the objection of the defense." Id. at 542:5-8. The trial court overruled GaNun's objection and again asked whether GaNun wanted the plaque to be redacted. GaNun responded, "I don't want it redacted." Id. at 542:12.The trial court then twice confirmed that GaNun waived redaction of the photograph.
Following Erra's testimony, the prosecution called a police officer and a detective who participated in the investigation. On cross-examination of the police officer, GaNun introduced an unredacted arrest report from Wilson's October 1994 arrest, which indicated that Wilson was arrested for "attempt[ed] grand larceny (extortion), menacing with pipes... [and] unlawfully enter[ing a] construction site." Pet'r App'x 61; see also Wilson VII, 2007 U.S. Dist. LEXIS 22492, at *52. The prosecution objected to its introduction as a business record, but the trial court overruled the objection, adding the following during a side-bar conference:
THE COURT:... I'm going to ask the defense, do you really want this in evidence?
THE COURT: All right. It's your choice. You're not asking for redaction or anything else?
MR. GaNUN: No, your Honor.
THE COURT: That's not a problem as long as we all fully understand what we're doing here, I'm sure you do, I'm not going to ask you what your theory of defense is. All I'm going to say to you is, I would not let the jury see this in ten million years unless you specifically wanted it. It's as simple as that. You realize, of course, that it contains a complaint of certain conduct. It's hearsay basically, but if you want it in, I'll put it in. Last chance now, do you want it?
MR. GaNUN: May I look at that one second?...
THE COURT: Okay, what do you want to do?
MR. GaNUN: I want to have it put in evidence.
Trial Tr. 662:6-25; 664:16-17, Sept. 27, 1995. See also Wilson VII, 2007 U.S. Dist. LEXIS 22492, at *53 n.40.
Prior to the close of the prosecution's case, while GaNun was cross-examining the police detective, the trial court called for a recess and raised sua sponte and on the record the possibility that Wilson had received ineffective assistance of counsel. The court stated:
I am becoming increasingly disturbed and I'm going to put it right on the record, at some of the decisions apparently made by defense in this case and I'm not going to probe defense's theories, I don't know what defense has in mind, but I'm going to tell you right here and now, certain questions are being raised in my mind.
I understand that we have retained counsel. But so far, we have had an opening of the door on the investigation. We have had, although that I could see perhaps it was not anticipated but it happened, and it certainly should have been considered before the opening was made. That's number one.
Number two, we had a questioning of the complaining witness as to why he didn't come in which he elicited the answers, as much as I tried to delay it or prevent it, that he was afraid to come in, which was disastrous for the defendant.
Then we had the defense putting into evidence, the warrant and order and the... supporting affirmation by the D.A., which again did not help the defendant.
Then we had several questions today that are going right into areas that I personally, as a defense lawyer, ...