Garcia v. Portuondo

OPINION

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, 1 as were *271 motions in the state court for post-conviction relief. 2 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. 3

Background

Cesar Vasquez was murdered on July 16, 1991, around 11:46 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 Puer-to 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.

A. The Trial

1. The Alibi Notice

Garcia was represented at trial by Jorge Guttlein, Esq. Before commencement of the trial, Guttlein submitted an amended alibi notice 4 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) “[rjeports 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. 5

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”). 6

*272 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. 7

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. 8 The trial court expressed doubt as to the documents’ admissibility and suggested that Guttlein brief the issue. 9 Gutt-lein, however, filed no brief. Nor did he ever offer the documents into evidence.

2. The People’s Case

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. 10

Denor made an in-court identification of Garcia as the front seat passenger. 11 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. 12 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 Pezzul-lo 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. 13

3. The Defense

a. Cross-Examination of Denor

Guttlein vigorously attempted to discredit Denor, establishing on cross-exami *273 nation 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. 14

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. 15

The second inconsistency concerned De-nor’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. 16 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. 17

b. Griselda Vasquez

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. 18 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. 19 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. 20

J. The Trial’s Conclusion

In closing, Guttlein emphasized the weakness of the prosecution’s case, De-nor’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. 21

Garcia was convicted and sentenced. He now contends that Guttlein’s failure to present his alibi was constitutionally deficient representation.

*274 B. Procedural History

The relevant details of Garcia’s state post-conviction proceedings are set forth in Garcia v. Portuondo (“Garcia II”), 22 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. 23 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. 24 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.” 25

On April 12, 2002, petitioner sought leave to file a successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b), 26 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). 27

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.” 28 It appointed counsel and referred the matter to Magistrate Judge Kevin N. Fox.

C. The Hearing

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 *275 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

a. Documentary Evidence

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. 29 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”). 30 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, 31 and another was certified as being a true copy of the original document. 32

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. 33

b. Testimonial Evidence

Guttlein knew also that several witnesses were prepared to testify to Garcia’s alibi. As the alibi notice indicated, Gutt-lein knew that Gabriella Peña, Garcia’s girlfriend at the time of the murder, 34 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. 35 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), *276 her cousins, Leonora and Cristian Filpo, and her friend, Aisacia Encarnación, could have backed up her story. 36

2. New Evidence

a. Documentary Evidence

The hearing revealed also that Guttlein would have discovered more evidence to support Garcia’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, 37 bearing Garcia’s photograph and national identity number; 38 (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; 39 (3) a Dominican bail document ordering Garcia’s detention until payment of bail, 40 which Ortega testified she was given at the Puerto Plata courthouse after paying Garcia’s bail and presented at the police station to obtain his release; 41 (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, 42 which Garcia testified was given to him immediately before his arrest at the Puerto Plata airport on July 15, 1991; 43 (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; 44 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, 45 which Garcia testified he received at the Puerto Plata airport on July 15, shortly before being arrested for attempting to travel with false documents. 46

*277 b. Testimonial Evidence

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”).' 47 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. 48 One witness swore that she saw Garcia in Matan-zas on the night of July 16. 49 Another, Alsaeia Encarnación, 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. 50

Live testimony further corroborated the alibi. Encarnación 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 Encarnación awakened him and he spoke with Griselda Vasquez. 51 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. 52 Leonora Filpo, Cris-tian Filpo, and Alicia Burgos testified that they saw Garcia at several of Niña’s prayer sessions. 53 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. 54 Finally, Garcia himself testified to his alibi. 55

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, 56 thus establishing a motive. Moreover, respondent established that Denor *278 had identified not only Garcia in a lineup, but also his co-defendant, a fellow drug dealer from the same block in the Bronx. 57

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. 58

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, 59 but had not mentioned the names of individuals who could have placed him in the Dominican Republic at the time of the murder. 60

D. The Report and Recommendation

Judge Fox concluded that Guttlein’s performance was unconstitutionally deficient in at least two respects. First, Guttlein failed to present alibi evidence known to him at the time. When the court expressed doubt about the admissibility of the Alibi Notice Documents and asked Guttlein to brief the issue, he conducted no legal research, submitted no brief, and “simply abandoned altogether any effort to establish Garcia’s alibi by this method.” 61 In addition, Guttlein faded to call witnesses he knew could have corroborated Garcia’s alibi.

Second, Judge Fox found that Guttlein failed to investigate Garcia’s whereabouts on July 16, 1991. He did not have an investigator seek police records or other documents in the Dominican Republic relating to Garcia’s incarceration. He failed to investigate relevant travel documents or records of phone calls that Garcia supposedly made from the Dominican Republic on or after July 16. He failed also to interview Ortega about the alibi or to contact the witnesses she told him could corroborate her testimony.

Had Guttlein performed adequately, he would have uncovered additional evidence that, if credited by the jury, would have established that Garcia flew to the Dominican Republic on June 22, 1991, attempted to board a flight back to New York on July 15, was arrested for attempting to board this flight with forged documents, was incarcerated in a Dominican jail that day, was not released until the afternoon of July 16, and remained in the Dominican Republic until well after the murder.

Judge Fox concluded that Guttlein’s failure to investigate Garcia’s alibi, or offer evidence he knew supported it, was ineffective assistance. Furthermore, this deficient performance was prejudicial. The jury heard no evidence that Garcia was in the Dominican Republic at the time of the murder, and the now-complete record does not strongly support the conviction.

*279 Discussion

In reviewing the Report and Recommendation, the Magistrate Judge’s findings are reviewed de novo. The Court may accept, reject, or modify any finding of the Magistrate Judge. 62 Where the Magistrate Judge has made findings regarding witness credibility, however, the Court should not reject such findings unless it has heard the testimony itself. 63

A. Statute of Limitations

Respondent argues that the petition is time-barred because it was filed outside the one-year limitations period provided by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 64 He contends further that the statute was not tolled because Garcia did not make out a credible claim of actual innocence.

The Court already has decided this issue. In November 2002, respondent moved to dismiss the petition as untimely. In Garcia II, the Court found that “the running of the AEDPA statute of limitations is equitably tolled in the exceedingly rare case in which the petitioner makes out a credible claim of actual innocence. This is such a case.” 65 Respondent has offered no persuasive reason to revisit that conclusion. Even if it were revisited, the Court, as will appear, would reach the same result.

1. Alibi Witness Affidavits

First, respondent contends that this Court was misled by the affidavits of Garcia’s alibi witnesses in denying the motion to dismiss in 2002. He relies especially on the affidavit of Isabel Batista, Garcia’s mother-in-law. He claims that Batista had been using her maiden name, Filpo, for many years, and that her failure to use that name in her affidavit concealed Garcia’s relationship to her and other affiants. The claim, however, is without merit. Batista stated in her affidavit that she is Garcia’s mother-in-law. 66

Respondent correctly notes that other affidavits submitted by Garcia on the motion to dismiss failed to disclose the affiants’ family connections to Garcia. Now that the relationships are clear, however, they do not warrant a different conclusion about Garcia’s claim of actual innocence. Even without these affidavits, Garcia’s alibi is supported by ample documentary evidence and other witnesses’ live testimony, which Judge Fox found credible.

2. Denor’s Identification of Garcia’s Co-defendant

Respondent next argues that other evidence at the hearing undermines the claim of actual innocence. He points to the fact that Denor identified at the lineup not only Garcia but also his co-defendant, a fellow drug dealer from the same block in the Bronx. Respondent argues that “it would be an amazing coincidence for Ms. Denor to have independently identified two acquaintances if they had not in fact acted in concert in murdering Mr. Vasquez.” 67 *280 Without knowing the identities of the other men in the lineup, however, no such inference is warranted. It is possible, for example, that they all were acquainted drug dealers from the Bronx, the “usual suspects,” so to speak. If so, Denor’s identification would have been unremarkable. That Denor identified the co-defendant therefore does not dispel doubts about her inconsistent testimony or require rejection of Garcia’s claim of actual innocence.

3. Evidence of Motive

Finally, respondent points to the new evidence that Garcia had a motive to kill Vasquez. The evidence, however, does not undermine the strong evidence that Garcia was in the Dominican Republic on the night of July 16, 1991. Indeed, the fact that Garcia was connected to Vasquez is an important part of his alibi. Several witnesses testified that Encarnación awakened Garcia in Matanzas on the night of July 16 to tell him about Vasquez’s death and that Garcia went to Encarnacion’s house and spoke to Griselda Vasquez by telephone. Moreover, this testimony tends to corroborate Ms. Vasquez’s trial testimony that Garcia was in the Dominican Republic when she spoke to him that night. The existence of a motive therefore goes some way towards supporting the prosecution’s case, but it does not go far enough to warrant any change in the conclusion that Garcia made out a credible claim of actual innocence. 68

B. Ineffective Assistance

1. Deficient Performance

To prevail on a claim of ineffective assistance of counsel, a petitioner must show a deficiency in trial counsel’s performance as well as prejudice. To establish deficiency, the petitioner must show that counsel’s representation fell below an objective standard of reasonableness. That is, he must identify acts or omissions of counsel that were not results of reasonable professional judgment. 69

Representation of a criminal defendant entails certain basic duties, 70 one of which is to investigate the facts of the case so that counsel can prepare a reasonably informed defense. 71 Counsel breach *281 es this duty by failing “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 72 “[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” 73 In assessing the reasonableness of an attorney’s investigation, “a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further.” 74

a. Failure to Offer Documents

Judge Fox found Guttlein’s performance ineffective in part because he did not offer the documents he possessed in evidence. While Guttlein raised the issue of the admissibility of the Alibi Notice Documents, he neglected entirely to conduct legal research and submit a brief as the trial court asked. He failed to offer either the Alibi Notice Documents or the Dominican Police Documents, and the trial judge never was given the opportunity to rule on their admissibility. 75

Respondent argues that this was not unreasonable because the documents Gutt-lein possessed were inadmissible, and no amount of legal research would have revealed otherwise. 76 Researching and briefing the issue of admissibility, according to respondent, would have distracted Guttlein from pursuing more worthy defenses. This argument is erroneous.

(1) Relevance

Both the Alibi Notice Documents and Dominican Police Documents were relevant, as they strongly suggested Garcia’s innocence of the charged crime, particularly in conjunction with Ms. Vasquez’s trial testimony.

(2) Hearsay Exceptions

The documents also probably were admissible under the public records exception to the hearsay rule.

In New York, a public record is an exception to the hearsay rule both under CPLR § 4520 and the common law. 77 Properly authenticated foreign official documents fall within this exception. 78

*282 In order to be admissible under Section 4520, a document must be (1) made by a public officer, (2) in the form of a certificate, (3) authorized by special provision of law, (4) prepared in the course of the officer’s official duty, (5) a memoriali-zation of a fact ascertained or an act performed by the public officer, and (6) on file or deposit in the public office. 79 At common law, an official record is admissible “when a public officer is required or authorized, by statute or nature of the duty of the office, to keep records of acts or transactions occurring in the course of his official duty.” 80

The record does not indicate whether each of the foundational requirements for admission under either Section 4520 or the common law was met. Respondent, however, does not rely on any lack of foundation in making his objection. Moreover, the issue on Strickland’s first prong is not whether Guttlein had the evidence to lay a foundation, but whether a reasonable lawyer would have made an effort to obtain it. A reasonable lawyer at least would have attempted to meet the unexacting requirements of the common law by, for example, researching Dominican law, 81 calling an expert on Dominican law enforcement, 82 or calling a Dominican police officer or lawyer to testify to the nature of the duties of the documents’ authors. 83 The critical point is that there was and is every reason to conclude that the proper foundation could have been laid, even assuming that respondent had raised the point. 84 Moreover, anyone fa *283 miliar with the welter of official reports constantly created by New York and federal officers and agents — UF-61’s, DD-5’s, 302’s, and the like — knows that such reporting is inherent in the law enforcement function and that this likely is so in the Dominican Republic as well.

(3) Authentication

Respondent argues, however, that if the documents had been offered as public records, they would have been inadmissible anyway because they were not properly authenticated under CPLR § 4542. 85

*284 Putting aside whether the documents satisfied Section 4542, 86 respondent ignores the fact that Section 4542’s requirements are not mandatory. The statute provides that a foreign official record “may be evidenced” in the ways there described. 87 It does not say “shall.” Moreover, Section 4543 provides that “[n]othing in this article prevents the proof of a fact or a writing by any method authorized by any applicable statute or by the rules of evidence at common law.” 88 Other means of authentication are permitted. 89

Under the common law, all Guttlein had to do was offer evidence from which a reasonable juror could have concluded that the documents were what they purported to be. 90 No more would have been re *285 quired than the testimony by a person with personal knowledge that the documents were obtained from an official in the Dominican Republic. 91

Such testimony most likely could have been obtained. Ortega testified at the hearing before Judge Fox that she received both the Alibi Notice Documents and the Dominican Police Documents from her stepfather, who traveled to the Dominican Republic before trial. Before he left, Ortega said, she gave him the details of Garcia’s July 15-16 incarceration and asked him to get documents related to the case from the Puerto Plata courthouse. When Ortega’s stepfather returned to the *286 United States, he gave Ortega the Alibi Notice Documents and Dominican Police Documents, which Ortega then gave to Guttlein. Ortega testified also that she told Guttlein how she had obtained the documents and that her stepfather was in the United States at that time. 92 Guttlein therefore could have authenticated the documents by calling Ortega’s stepfather as a witness and having him describe how he obtained the documents from the Puer-to Plata courthouse. 93

Minimal research therefore would have revealed that the documents likely were admissible. Guttlein’s failure to research and brief the issue therefore fell well below objective standards of reasonableness.

b. Failure to Investigate

At the time of trial, Guttlein possessed documents indicating that Garcia was in the Dominican Republic on the day of the murder. He knew of several witnesses who reportedly were prepared to testify that they were with Garcia in the Dominican Republic that day. Any reasonable defense attorney in Guttlein’s position certainly would have undertaken some investigation into the defendant’s whereabouts at the time of the crime. Yet Gutt-lein did not. He made no effort to obtain additional documentary evidence of Garcia’s arrest on July 15, 1991. Nor did he seek to obtain documents pertaining to Garcia’s travels (or attempted travels) to and from the Dominican Republic in June and July 1991. He failed also to interview prospective alibi witnesses or investigate physical evidence that could have been used to corroborate their testimony.

Respondent argues that Guttlein should not be faulted for having failed to interview alibi witnesses because he did not know any who could have placed Garcia in the Dominican Republic at the exact time of the murder. This is irrelevant. After learning that his client was in the Dominican Republic only hours before the crime was committed, Guttlein should have investigated where Garcia went next. His duty was to investigate, not to make do with whatever evidence fell into his lap. 94 Had Guttlein interviewed Ortega, for example, he would have learned that others saw Garcia in the Dominican Republic on the night of July 16,1991.

In failing to conduct any investigation at all, Guttlein’s performance at trial fell well below objective standards of reasonable representation.

c. Trial Strategy

The Supreme Court has cautioned that a court must “apply[ ] a heavy measure of deference to counsel’s judgments” 95 in ineffectiveness cases. “[Strategic choices made after thorough *287 investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 96 Thus, a court should be reluctant to disturb the portion of counsel’s performance that is related to “trial strategy,” or decisions to pursue particular lines of defense when several alternatives were available. 97

(1) Strength of Documentary Evidence

Guttlein stated in his affidavit that he did not recall precisely why he did not investigate Garcia’s alibi. 98 He speculated that he believed a full investigation was unnecessary because the documents he submitted to the trial court would have established Garcia’s innocence with such certainty that the trial judge would have dismissed the case. 99

This does not excuse Guttlein’s performance. Indeed, it exemplifies its inadequacy. If, as Guttlein stated, “he was surprised and dismayed when the trial judge indicated ... that he was not inclined to admit the Dominican Documents into evidence,” 100 then he should have briefed the issue of admissibility and attempted to persuade the court to admit the evidence he thought was essential to Guttlein’s defense. Moreover, he should have presented evidence he knew would have been admissible, such as the testimony of Ana Ortega and other alibi witnesses.

(2) Weakness of the Prosecution’s Case

Guttlein speculated also that his failure to investigate stemmed from his belief that the prosecution’s case was weak. 101 This, however, would have been no excuse. No matter how weak the prosecution’s case, proof that Garcia had been in the Dominican Republic at the time of the murder was central to the truth-finding function of the trial. A perceived paucity of evidence on the prosecution’s side did not absolve Guttlein of the duty to present facts that, if credited, would have been conclusive in his client’s favor. But even this perhaps is beside the point.

As the Second Circuit has held, a decision not to prepare an adequate defense because a defense lawyer thinks the prosecution’s case is weak is not “strategic.” It is motivated by the desire to avoid work, not to serve the best interests of the defendant. 102 “No lawyer could make a ‘strategic’ decision not to interview witnesses thoroughly, because such preparation is necessary in order to know whether the testimony they could provide would help or hinder his client’s case, and thus is prerequisite to making any strategic decisions at all.” 103 Thus, as Judge Fox correctly concluded, “[t]here is no reasonable trial *288 strategy that would have excluded at least conducting interviews of the alibi witnesses to determine whether they could provide exculpatory evidence.” 104

(S) Cost and Time Constraints

Finally, Guttlein speculated that cost and time constraints were potential factors leading to his failure to investigate. 105

Deciding that investigation is costly is not, as Strickland requires, equivalent to a reasonable and informed decision that investigation is unnecessary. Indeed, as one court has held,

“There are costs involved whenever defense counsel is obliged to undertake an investigation. These costs are often substantial.... [However, h]aving accepted the responsibility of representing a criminal defendant, counsel owes a duty to his client that will on occasion require him to make financial outlays that might be considered unfair for an ordinary businessman who, unlike a licensed attorney, has not voluntarily adopted an enhanced ethical obligation to society.” 106

If Guttlein believed that his retainer 107 alone would not have made traveling to the Dominican Republic to retrieve police records financially feasible, he could have petitioned the trial court for public assistance. 108 And even if the court denied his request, Guttlein could have undertaken less costly investigative measures, such as interviewing the witnesses who were prepared to corroborate Garcia’s alibi and subpoenaing airlines and travel agencies to obtain flight records and plane manifests, as well as telephone companies to retrieve call records.

Nor was Guttlein excused from investigating because of time constraints. A decision not to pursue a particular defense is “strategic” if it involves a careful calculation that time would be spent better pursuing other defenses. Guttlein made no such decision here. He failed to investigate the alibi entirely and so could not have decided that another defense was more worthy of his time.

This is not to say that Guttlein was unreasonable in pursuing the defense he did — attacking Denor’s credibility. It is to say that this was not enough. “[Strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 109 Guttlein could not have made a strategic decision not to present the alibi because he did not then know the details of such a defense or how credible it would have been. 110

*289 Judge Fox therefore was correct in concluding that “counsel’s performance did not meet the Strickland standard for effective assistance of counsel.” 111

2. Prejudice

To establish prejudice, a petitioner must show that there is a reasonable probability that the verdict would have been different but for counsel’s unprofessional errors. 112 In making the prejudice determination, a court

“must consider the totality of the evidence before the judge or jury.... Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.” 113

The jury heard virtually nothing about the alibi defense. It saw no documentary evidence about Garcia’s travel to the Dominican Republic or his incarceration there. It heard no testimony from the numerous witnesses who would have placed Garcia in the Dominican Republic before, during, and after the murder. Nor did it hear from the witnesses who could have corroborated Griselda Vasquez’s testimony that Garcia spoke to her from the Dominican Republic on the night of July 16,1991.

Evidently, the jury convicted primarily on the basis of Denor’s testimony and lineup identification of Garcia. Given, however, that Denor admitted she was on Valium at the time of the murder and Thorazine during the trial, as well as the fact that her testimony was rife with inconsistencies, the prosecution’s case was not, to say the least, particularly strong. There is thus little doubt that the alibi evidence, had it been produced at trial, would have altered the landscape substantially. The decision of a jury that did not weigh this evidence is not reliable. Respondent nevertheless objects to Judge Fox’s finding of prejudice for three reasons.

a. Admissibility of Documents

Respondent argues first that Guttlein’s failure to submit documentary evidence of the alibi did not prejudice Garcia because the documents were not admissible. As noted, this argument is erroneous — the documents almost certainly were admissible, and Guttlein could have discovered this with ease. 114 Moreover, respondent’s argument overlooks the fact that numerous alibi witnesses could have testified to Garcia’s alibi and that Garcia’s current counsel has uncovered additional admissible evidence. This evidence alone had a reasonable probability of changing the outcome of the case. Even if the documents Guttlein possessed were inadmissible, Guttlein still failed to investigate and present evidence that was admissible.

b. Alibi Imperfections

Respondent next argues that Garcia was not prejudiced because his alibi was imperfect. That is, if Guttlein had presented the alibi evidence he possessed at trial, the jury would have been “made aware that *290 [Garcia] was released in time to murder Vasquez.” 115

This argument is unavailing. If Guttlein had investigated Garcia’s alibi as a reasonable lawyer would have done, he would have uncovered much more evidence to bolster the alibi, including testimony that placed Garcia in the Dominican Republic at the time of the murder.

Furthermore, as Judge Fox noted, respondent’s theory that Garcia flew to New York immediately after his release from jail makes little sense. On this theory, Garcia was arrested for traveling with false documents on July 15, 1991, incarcerated until July 16, obtained new false papers that same day, and then used them to pass through the same guards at the same airport checkpoint who had arrested him only one day earlier. 116 Respondent’s claim that a reasonable jury necessarily would have convicted on this theory is highly doubtful.

To claim that Garcia was not prejudiced because his alibi was imperfect is to urge an unreasonable application of the Strickland standard. Garcia need not prove with certainty that he would have secured an acquittal. He must show only that there was a strong probability that the verdict would have been different. Given the weakness of the prosecution’s case, the arguable implausibility of its theory, and the evidence supporting the alibi, Judge Fox concluded that Garcia satisfied this burden. This Court agrees entirely.

c. Fabrication

Finally, respondent contends that Garcia’s alibi is recently fabricated and that Judge Fox improperly “assumes the truth of the late-coming and frequently evolving allegations made by petitioner and his wife Ortega.” 117

(1) Post-Conviction Proceedings

Respondent argues that Garcia’s alibi evidence is untrustworthy because it has come to light only now, after years of post-conviction proceedings.

He points first to the fact that the file of Garcia’s appellate counsel did not contain information about the names of alibi witnesses, and argues that this indicates that the witnesses who testified at the hearing before Judge Fox cannot be believed. Nothing in appellate counsel’s file, however, indicates that appellate counsel specifically requested the names of individuals who could place Garcia in the Dominican Republic on the night of the murder. 118 *291 Moreover, appellate counsel testified that he did not interview Ortega, who might have provided the names of alibi witnesses if asked. 119 Garcia therefore may not have supplied the names of alibi witnesses because he was not asked to do so.

Respondent argues also that if the alibi witnesses were credible, Garcia would have mentioned them in the pro se supplemental brief he filed in connection with his appeal 120 and his pro se application for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. 121 However, Garcia’s failure to mention the alibi witnesses in pro se post-conviction papers does not necessarily say anything about the credibility of his alibi. It may say more about his lack of legal training and knowledge of his rights. 122

(2) Guttlein’s Limited Knowledge of Alibi Evidence

Respondent next points to the fact that Guttlein was unaware of alibi witnesses who could have placed Garcia in the Dominican Republic at the exact time of the murder. This, he argues, shows that the alibi was invented recently.

In fact, it shows no such thing. Rather, it highlights Guttlein’s ineffectiveness. If he had done his job, Guttlein would have known of numerous alibi witnesses who could have placed Garcia in the Dominican Republic on the night of the July 16, 1991.

Indeed, it is not surprising that much of Garcia’s alibi evidence has come to light recently. It was not until now that Garcia had counsel willing to interview Ortega extensively, follow leads to other witnesses, and travel to the Dominican Republic to obtain official records. That Guttlein was unaware of the strength of the alibi reinforces Garcia’s claim. It does not undermine it.

(S) Witness Credibility

Finally, respondent claims that the alibi witnesses are not credible and that the documentary evidence is not trustworthy. But he mistakes the function of the habeas court. It is not this Court’s role to try the case. Rather, it is to determine whether Guttlein’s failure to offer alibi evidence at trial, and thus to give the jury the opportunity to evaluate its trustworthiness, prejudiced Garcia’s case.

To be sure, some assessment of credibility is essential in order to make this determination. A federal habeas court certainly is not obliged or entitled to assume that any proposed evidence offered up by petitioner, regardless of how obviously unreliable it might be, is sufficient to justify a conclusion that the petitioner was deprived of constitutional rights. But the evidence offered here is sufficiently credible to persuade this Court that there is a reasonable *292 probability that the verdict in this case would have been different had the jury seen and heard it.

First, Judge Fox explicitly credited the testimony of Encarnación, Burgos, and Leonora and Cristian Filpo, all of whom placed Garcia in the Dominican Republic on or around the night of the murder. 123 Indeed, contrary to respondent’s contention, that the witnesses do not agree about every minor detail of events fifteen years old makes their testimony more credible, not less so.

Second, respondent’s claim that the documentary evidence is or might be fabricated is, at best, perplexing. Nothing in the record supports any such conclusion. The District Attorney, with all of his resources, has conducted no forensic examination or otherwise come forward with any evidence to support the claim. 124 And if the documents were fabricated, one wonders why Garcia did not do a better job in constructing his alibi. If Garcia forged these documents, he just as easily could have made his alibi airtight by creating travel documents in his own name and detention documents placing him in jail at the precise time of the murder.

In the last analysis, there is a reasonable probability that Garcia would have been acquitted if Guttlein had done his job competently. It will be up to a new trial jury, however, to make the final decision of guilt or innocence, assuming the People elect to retry petitioner.

C. AEDPA

Under 28 U.S.C. § 2254(d), a state prisoner’s application for habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in a state court proceeding unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 125

The Bronx County Supreme Court denied Garcia’s motion to vacate in December 2000 in a one-paragraph, handwritten decision that stated simply “the evidence submitted does not establish defendant’s alibi. A review of the record fails to substantiate allegations of ineffective assistance of counsel.” 126 This was an unreasonable application of clearly established federal law under AEDPA. 127

The state court applied an unreasonably strict standard in evaluating Garcia’s claim. To satisfy the second prong of Strickland, Garcia was not required to establish his alibi, as the state court decision held, but only to show that trial counsel’s performance fell below professional standards of competence and that the outcome *293 of the case probably would have been different but for this deficiency.

This Court recognizes that the foregoing discussion of Garcia’s ineffective assistance claim is based partly on evidence that was not before the state court when it decided Garcia’s motion to vacate. Nevertheless, the evidence before the state court was more than sufficient to make out a claim of ineffective assistance under Strickland.

Garcia submitted with his motion to vacate, inter alia, affidavits of five alibi witnesses, 128 the Dominican Police Documents, 129 and all but one of the Alibi Notice Documents. 130 The state court had also the trial transcript, which revealed that Guttlein submitted the amended alibi notice, possessed exculpatory documents, failed to offer the documents in evidence, failed to brief the issue of the documents’ admissibility as the trial court asked, and failed to call alibi witnesses who could have corroborated the testimony of Gri-selda Vasquez.

Accordingly, measured against the record before the state court judge, Garcia is entitled to relief.

D. Remedy

1. Conditional Release

Federal courts have broad discretion in fashioning a remedy for unlawful incarceration. 131 They are authorized to “dispose of [a habeas petition] as law and justice require.” 132

“The typical relief granted in federal habeas corpus is a conditional order of release,” 133 requiring the state either to release the prisoner from custody or retry him in a constitutional manner within a reasonable period of time. 134 In rare cases, however, a court may grant unconditional, immediate release. 135 Such a remedy is warranted when the constitutional violation is “so egregious, its consequences so grave, and the unlawful restraints already imposed on the petitioner’s liberty so lengthy or severe that law and justice mandate unconditional discharge.” 136

*294 Garcia argues that immediate release is warranted because he has been imprisoned for over fifteen years and served nearly two-thirds of the minimum sentence for a crime that he may well have not committed. It would be unjust, he argues, to allow him to remain in prison while respondent appeals or the People retry him. 137

While the Court recognizes that Garcia has been imprisoned for a long time, it is not convinced that unconditional release is appropriate here.

2. Prejudice to Retnal

Garcia nevertheless argues that unconditional release is appropriate because the People should be barred from retrying him.

A court’s broad authority to fashion a remedy includes the authority to bar retrial. 138 Such an extreme remedy is typically reserved for cases where the fact of prosecution itself was unlawful, such as in the double jeopardy and ex post facto contexts, or where a conditional writ was granted but the state failed to correct the constitutional error within a reasonable period of time. 139 A court may bar retrial, however, even where the constitutional violation is capable of correction, but “where the petitioner [has] served [an] extended and potentially unjustifiable period[ ] of incarceration before the writ was granted.” 140

a. The Morales Case

Garcia points to Morales v. Portuondo, 141 where Judge Chin granted unconditional release with prejudice to retrial. Judge Chin there found that an extreme remedy was appropriate for three reasons. First, in light of all the evidence, no reasonable jury could have convicted. The prosecution had no forensic evidence at trial and based its case on a single eyewitness identification of questionable credibility. The petitioners had five alibi witnesses to exculpate them at trial and another individual since had confessed to participating in the crime and exonerated the petitioners. 142

Second, the petitioners had been prejudiced severely by the passage of time. Some of their alibi witnesses were dead or unavailable. The remaining witnesses would have been forced to testify to events that occurred fourteen years earlier. 143

Third, the prosecution’s actions showed that it “was more intent on protecting a conviction than in seeing that justice was done.” 144 Among other things, it failed to disclose evidence that would impeach its main witness, improperly pressured wit *295 nesses into giving incriminating testimony, and failed to interview witnesses timely and adequately who it knew might exonerate the petitioners. 145

b. This Case

This is not a case in which barring retrial would be appropriate. While the People have no forensic evidence and presumably will rely almost entirely on De-nor’s testimony, this Court is not now prepared to say that no reasonable jury could convict. Respondent has produced new evidence establishing a motive and has raised issues about the credibility of the alibi witnesses. Moreover, Garcia’s case has not been prejudiced severely by the passage of time. None of his alibi witnesses is dead or unavailable. Nor has the credibility of the documentary evidence diminished. Indeed, Garcia’s case is quite strong, even fifteen years later.

Finally, while the prosecution has been obdurate and perhaps less than fully dedicated to investigating Garcia’s whereabouts on July 16, 1991, 146 there has been no showing of affirmative misconduct. Garcia has suggested that the prosecution tainted Denor’s lineup identification and concealed the whereabouts of a witness before the hearing. 147 Without a fuller record, however, the Court is not persuaded that the prosecution’s behavior was so outrageous that it should be barred from retrying Garcia.

Conclusion

This is an exceptionally troubling case. The performance of petitioner’s trial counsel was well below minimal standards of competence. In all probability, it resulted in a conviction and fifteen years in prison that otherwise would not have occurred. Nevertheless, despite the plethora of alibi witnesses and other evidence that make out a credible claim of actual innocence, that evidence perhaps is not so conclusive as to preclude a conviction altogether. Given the fact that a murder was committed and the entitlement of the People of the State of New York to a verdict based on all of the probative evidence, the appropriate course is to grant the writ unless petitioner is brought promptly to trial anew.

Respondent’s objections to the Report and Recommendation are overruled. Garcia’s petition for a writ of habeas corpus is granted conditionally. The writ will issue unless he is retried within 60 days. 148

SO ORDERED.