Petition for Writ of Certiorari — Kuhlmann v. Bohan

Court, 8.

a

Cl) riners

O03 877 NOV 142003

No. -

IN THE

Supreme Court of the Gnited States

ROBERT KUHLMANN, Superintendent,

Sullivan Correctional Facility

Petitioner,

- against -

ROBERT BOHAN,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ROBERT M. MORGENTHAU

District Attorney, New York

County

MARK RYAN DWYER*

SYLVIA WERTHEIMER

Assistant District Attorneys

New York County District Attorney’s

Office

~ One Hogan Place

New York, New York 10013

(212) 335-9310

* Counsel of Record for the

Petitioner

December 12, 2003

QUESTIONS PRESENTED

1. Under Taylor v. Illinois, 484 U.S. 400, 108 S. Ct. 646

(1988), may a trial court constitutionally preclude an alibi

witness on account of the defendant’s failure to give alibi

notice only if the failure to provide notice was willful?

2. Did “clearly established Federal law” announced by

this Court provide that an alibi witness cannot be precluded

on account of the failure to give alibi notice except if the

failure to provide notice was willful?

3. May a federal habeas court override a state appellate

court’s conclusion that the defendant was not prejudiced by

his attorney’s failure to give alibi notice, where the federal

court itself acknowledges that the record “gives cause for

some hesitation” as to the impact of the precluded

testimony?

TABLE OF CONTENTS

Page

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JURISDICTION rie ntact acidic tnilliha ite aah ania eae da 2

STATUTORY PROVISIONS INVOLVED................cc-cscsssssessssseones 3

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The Appeal to the Appellate Division........ LE SY PEER 6

The Proceedings in Federal District Court ............eeeeeeeeeeeeeeeee 7

“Fine Seccepend Cth hE ister seen ciitassntnensennticietsinssonces 9

REASONS FOR GRANTING THE WRIT .......0seccsscsscssovssesecsconsess 10

“I. The Circuits are Split as to When a Trial Court

May Properly Preclude a Defense Witness from

Testifying as a Sanction for the Failure to

Comply with Applicable Disclosure Rules...................... 10

II. Under Williams v. Taylor, the court below

wrongly applied Second Circuit law when there

was no clearly established law from this Court............... 15

III. The federal courts did not give proper deference

to the state court’s determination that the

preclusion of Bernardo’s testimony did not

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TABLE OF AUTHORITIES

CASES ‘

Chappee v. Vose, 843 F.2d 25 (Ist Cir. 1988).........::s:seseeee 10

McCambridge v. Hall, 303 F.3d 24 (1st Cir. 2002)................ 18

Noble v. Kelly, 246 F.3d 93 (2d Cir.), cert. denied,

534 U.S. 886 (2001)........:cssseseesereeeesceeseessecsreeseneeneens 8.9, 16

Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052 (1984) .....csssceccscerecsesssseseseessesessesseessssnsseensesenseneenes 17, 18

Taylor v. Illinois, 484 U.S. 400,

108 S. Ct. 646 (1988)............ i, 8,9, 10, 11, 12, 13, 14, 15, 16

Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995), cert.

denied, 516 U.S. 1041 (1996) .......:ceceeeeeeseeseeeseeeesereeeeneeeees 11

United States v. Alexander, 869 F.2d 808 (Sth Cir.

1989), cert. denied, 493 U.S. 1069 (1990)........-sseseeeeeseseees 11

United States v. Johnson, 9/0 F.2d 907 (D.C. Cir.

1992) wo.ccccccsssssscsscececcssscssssessessssscscnsnssesssseaensesensnsnenenaseneneseees 11

United States v. Peters, 937 F.2d 1422 (9th Cir.

L991) voccsccsscsssssececsscescsssssssssssesencnssecessacssesssessensnssesessesssereees 10

United States v. Portela, 167 F.3d 687 (1st Cir. 1999)........... 10

Watley v. Williams, 218 F.3d 1156 (10th Cir. 2000),

cert. denied, 531 U.S. 1089. (2001) ........-seeseeeeeees sesseneenenees 11

Williams v. Florida, 399 U.S. 78, 90 S. Ct. 1893

(1970) .......esececceccscsessssceescesecscesensnsscsrscessaneacnsnsesscsnsosacaseneneaes 13

ill

Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495

CENT icisvsshonictecsadintacesinianiaininseimseshietiommninimonionens 8, 15, 16, 17

Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357

CINE iscsi sis conpinstesddcvsasiccdinmadensiaddacistiacionthntiakensaaeaalanats 17

FEDERAL STATUTES

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28 U.S.C. 62254 iiaaiconvl ss iets ke elaahdacaataaaabtaniael 2

PUR BK. SE rwinstictssniivasssnsesicncsntentin a, 12, 93, 16, 7

Fed. Rules Cr. Proc. Rule 12.1, 18 U.S.C.A (2003

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BU GA, Fee Ee inet tice eneenien Gen 2

STATE STATUTES

Connecticut Rules for the Superior Court §§ 762-68........ 12, 13

New York Criminal Procedure Law § 250.20 .......... eee es

VASES Pe divieinn mn eaeeian RE 12

iv

PETITION FOR WRIT OF CERTIORARI

The petitioner, Robert Kuhlmann, Superintendent of the

Sullivan Correctional Facility, requests that this Court issue a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit, entered in the

above-entitled proceeding, affirming the judgment of the

district court which granted respondent’s petition for a writ

of habeas corpus, thereby setting aside his state court

conviction for intentional murder. '

“OPINIONS BELOW

The Summary Order of the Court of Appeals for the

Second Circuit is not reported, but can be found at 66 Fed.

Appx. 277, 2003 U.S. App. LEXIS 12272 (2d Cir. 2003).

The decision is reprinted in the appendix to this petition at

pp. la-3a.

The Order of the Court of Appeals for the Second Circuit

denying petitioner’s request for a panel rehearing and

rehearing en banc is not reported. It is reprinted in the

appendix at p. 4a.

The Opinion and Order of the United States District

Court for the Southern District of New York (Marrero, J.), is

reported at 234 F.Supp.2d 231 (S.D.N.Y. 2002). It is

reprinted in the appendix at pp. 5a-42a.

' The petitioner is represented in this proceeding by the District

Attorney of New York County, New York, by-agreement with the

Attorney General of the State of New York.

The Magistrate’s Report and Recommendation (Francis

IV) is reported at 2001 U.S. Dist. LEXIS 21852 (S.D.N.Y.

2001). In addition, it is attached to the District Court’s

reported decision and can be found at 234 F. Supp.2d at 254-

83. It is reprinted in the appendix at pp. 43a-106a.

The Decision of the Appellate Division, First Department

unanimously affirming the judgment of conviction is

reported at 257 A.D.2d 443, 684 N.Y.S.2d 514 (1st Dept.

1999). It is reprinted in the appendix at pp. 107a-109a. The

order of the New York Court of Appeals denying Bohan’s

application for leave to appeal from that decision is reported

at 93 N.Y.2d 871, 689 N.Y.S.2d 433 (1999).

JURISDICTION

This petition for a writ of habeas corpus was filed in the

Southern District of New York invoking federal jurisdiction

under 28 U.S.C. §2254. On August 2, 2002, the Southern

District adopted the Report and Recommendation of the

Magistrate Judge and granted the petition.

On June 16, 2003, the Second Circuit affirmed that

disposition in a Summary Order. On June 30, 2003,

Kuhlmann filed a petition for a panel rehearing or a

rehearing en banc. The Second Circuit denied that request by

order dated August 18, 2003, and then issued its mandate on

September 12, 2003.

This petition for certiorari is filed within ninety days of

the date on which petitioner’s petition for a panel rehearing

or rehearing en banc was denied and is therefore timely. Sup.

Ct. R. 13. Petitioner invokes this Court’s jurisdiction under

28 U.S.C. §1254(1).

rs

STATUTORY PROVISIONS INVOLVED ~

Section 2254(d)(1) of Title 28 of the United States Code

provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated ~

on the merits in State court proceedings

unless the adjudication of the claim --

(1) resulted in a decision that was contrary to,

or involved an unreasonable application of,

clearly established Federal law, as determined

by the Supreme Court of the United States . . .

New York Criminal Procedure Law Section 250.20

provides in pertinent part:

1. At any time, not more than twenty

days after arraignment, the people may serve

upon the defendant or his counsel, and file a

copy thereof with the court, a demand that if

the defendant intends to offer a trial defense

that at the time of the commission of the

crime charged he was at some place or places

other than the scene of the crime, and to call

witnesses in support of such defense, he must,

within eight days of service of such demand,

serve upon the people, and file a copy thereof

with-the court, a “notice of alibi,” reciting (a)

the place or places: where the defendant

claims to have been at the time in question,

and (b) the names, the residential addresses,

the places of employment and the addresses

thereof of every such alibi witness upon

3

whom he intends to rely. For good cause

shown, the court may extend the period for

service of the notice.

* * *

3. If at the trial the defendant calls such

an alibi witness without having served the

demanded notice of alibi, or if having served

such a notice he calls a witness not specified

therein, the court may exclude any testimony

_ of such witness relating to the alibi defense.

The court may in its discretion receive such

testimony, but before doing so, it must, upon

application of the people, grant an

adjournment not in excess of three days.

5. Both the defendant and the people

shall be under a continuing duty to promptly

disclose the names and addresses of

additional witnesses which come to the

attention of either party subsequent to filing

their witness lists as provided in this section.

STATEMENT OF THE CASE

The Trial Court Proceedings

The State’s evidence at the jury trial established that, on

the night of January 12, 1993, respondent Robert Bohan shot

18-year-old Joseph Alvarez, in an execution-style killing.

Notably, the murder scene, the sidewalk in front of a

building on West 167th Street in Manhattan, was illuminated

4

by a street light. One eyewitness, the victim’s best friend,

had seen Bohan before, and identified him as Alvarez’s

murderer at a lineup the very day after the shooting. A

second eyewitness joined him at trial in identifying Bohan as

Alvarez’s executioner. In addition, the State presented tral

testimony that there had been an ongoing dispute between

Bohan and the victim, with a number of witnesses testifying ~

that they saw Bohan meet with the victim on various dates,

including the very afternoon preceding the murder.

Bohan called a variety of friends, relatives, and long-time

acquaintances as defense witnesses. Two defense witnesses

claimed that they had been at the crime scene and that Bohan

was not the murderer. Their descriptions of the “true” killer,

however, were starkly contradictory. Further, one defense

witness who reported being at the crime scene, Carmen

- Rivera, was impeached with evidence that she previously

had made oral and written statements that named Bohan as

Alvarez’s killer.

The defense also was allowed to call two alibi witnesses,

even though it never gave any alibi notice, as required by

New York statute (N.Y. Criminal Procedure Law [“CPL”] §

250.20). The alibi witnesses -- Bohan’s grandmother and a

long-time friend -- testified that, at the time of the shooting,

Bohan was at his grandmother’s apartment.

When the defense sought to call yet a third alibi witness

for whom it had not given the requisite statutory notice, the

State objected that, unlike the other two, it had never even

heard of that witness before. According to the defense

proffer, this third witness, Bernardo Rodriguez (“Bernardo”),

had been standing on the sidewalk outside Bohan’s

grandmother’s apartment building and had briefly seen

Bohan standing in the window of his grandmother’s -

bedroom (Tr. 345-46). Defense counsel had been in

possession of a written statement from Bernardo for over a

5

aaa aii i.

year, but had never disclosed it to the State. At the same

time, Bernardo had not come forward even to defense

counsel until more than a year after the murder and Bohan’s

prompt arrest for that crime.

The trial judge noted that the prosecutor had lost the

opportunity to send out his own investigator to try to

question Bernardo (Tr. 306). When defense counsel

questioned the existence of prejudice, the judge noted that

the case was “two and a half years old” (Tr. 310). The

prosecutor reiterated that the State did not have “enough time

to properly investigate” Bernardo (Tr. 357), and accordingly

“would not be able to do a proper cross examination” (Tr.

358). Ruling that she would grant the State’s request to

preclude Bernardo’s testimony, the judge stated, “[t]he point

of these notices is that you have a right to put on a defense,

but [the] People have a right to prevent perjurious testimony

from being presented to the jury and the way they can do that

is if they have an opportunity to investigate” (Tr. 359-60).

The judge added that she did not know “what is going on

here,” and had never before seen a trial “where every day a

new [witness] comes up out of the air in a case that is two

and a half years old” (Tr. 360).

The jury convicted Bohan of intentional murder. On

‘October 11, 1995, Bohan was sentenced to an indeterminate

prison term of from 25 years to life.

The Appeal to the Appellate Division

On appeal, the Appellate Division, First Department, of

the New York Supreme Court (“First Department”) held,

inter alia, that the trial court had properly exercised its

discretion in precluding the defense from calling Bernardo as

an alibi witness where the defense concededly never gave the

requisite alibi notice. 257 A.D.2d at 443, 684 N.Y.S.2d at

6

515. The First Department specifically reriarked that,

because of the failure to provide alibi notice, “the People

were deprived of the opportunity to conduct a proper

investigation regarding any of the alibi testimony.” Id. In

addition, the First Department held that Bohan had received

meaningful legal representation, and that his counsel’s

alleged errors, which included the failure to file-the requisite

alibi notice, “could not have deprived [Bohan] of a fair trial.”

Id. at 444, 684 N.Y.S.2d at 515.

The Proceedings in Federal District Court

On June 7, 2000, Bohan filed a petition for a writ of

habeas corpus in the United States District Court for the

Southern District Of New York. The petition’s seven claims

included two that implicated the preclusion of Bernardo’s

testimony. Bohan claimed that the preclusion of Bernardo’s

testimony deprived him of his constitutional right to present

a defense. In addition, Bohan claimed that the failure to give

the requisite alibi notice rendered trial counsel’s

representation ineffective.

On August 2 and October 1, 2001, Magistrate Judge

Francis held a hearing with respect to those claims. At that

hearing, the State showed that an important aspect of

Bernardo’s proffered alibi testimony was inconsistent with

the version of the alibi given by Bohan, his mother, and his

grandmother before the grand jury. Bernardo’s account also

was at odds with statements to the police by the friends who

allegedly had been with Bohan in his grandmother’s

apartment at the time of the murder.

Nevertheless, on December 28, 2001, the Magistrate

issued a report recommending that the writ be granted on the

grounds that Bohan’s irial counsel “was ineffective in failing

to serve an alibi notice,” and that the resulting preclusion of

7

Bernardo’s testimony “denied the petitioner his right to

present a defense.” 2001 U.S. Dist. LEXIS 21852 at *2.

According to the Magistrate, defense counsel’s failure to

give alibi notice in this case was not willful. Therefore, the

Magistrate concluded, the state courts’ determination that the

preclusion of Bernardo’s testimony was appropriate was

contrary to this Court’s precedent in Taylor v. Illinois, 484

U.S. 400, 108 S. Ct. 646 (1988). Id. at *73 -*74. The

Magistrate relied heavily on the Second Circuit’s decision in

Noble v. Kelly, 246 F.3d 93 (2d Cir.), cert. denied, 534 U.S.

886 (2001). Id. at *61. With respect to the ineffective

assistance of counsel claim, the Magistrate determined that

there “was no reasonable justification” for the state appellate

court’s conclusion that the preclusion of Bernardo’s

testimony “did not result in the deprivation of a fair trial for

the petitioner.” Id. at *88.

The District Court judge adopted the Magistrate’s

Report. The court reached its conclusion “under the

reasoning of Noble” v. Kelly, which, it stated, established

that “if the Tnal Court in the instant case could have. used

less onerous sanctions to minimize any prejudice to the

prosecution, some finding of willfulness was required to

justify the exclusion of [Bernardo’s] testimony.” 234 F.

Supp.2d at 248. The court dismissed the State’s argument

that Noble was not Supreme Court precedent, and thus could

not be the source of “clearly established Federal law” for

purposes of the habeas statute. Judge Marrero asserted that

Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000),

“does not indicate that a district court is required, or even

permitted, to disregard the Circuit’s interpretation of ‘clearly

established Federal law, as determined by the Supreme

Court’.” 234 F. Supp.2d at 248 n.10.

At the same time that it rejected the State’s argument that

any error was harmless, the district court stated that it was

“mindful that the record here gives cause for some

8

hesitation.” 234 F.Supp.2d at 252. In that regard, the court

acknowledged that “there was more than sufficient evidence

presented at trial for a rational juror to conclude that Bohan

committed the murder in question.” Id. The court also

acknowledged that “[t]he jury may very well have

discredited the testimony of’ Bernardo. Id. It stated,

however, that it did “not find that this outcome was as

inevitable as the State asserts.” Id.

The district court’s analysis of the prejudice prong of the

ineffective assistance of counsel claim referred repeatedly to,

and mirrored, its harmless error analysis. The court stated

that the state appellate court had “incorrectly concluded” that

the preclusion of Bernardo’s testimony “could not have

deprived [Bohan] of a fair trial.” 234 F. Supp.2d at 254. The

court opined that, “if the jury had credited [Bernardo’s]

testimony even partially, there is a reasonable probability

that the outcome of the trial would have been different.” Id.

The Second Circuit’s Decision

In a Summary Order, the Second Circuit (Judges Miner,

Jacobs, and Cabranes) “affirm[ed] for substantially the

reasons stated by the district court.” But the panel, while

stating that it was “constrained by” Noble v. Kelly, frankly

expressed reservations about the reasoning in that case. In

particular, the Summary Order stated, “we have doubts as to

whether Taylor v. Illinois prohibits state courts from

precluding an un-noticed alibi witness from testifying if less

onerous sanctions are available, absent a finding of

willfulness” (internal citation omitted).

REASONS FOR GRANTING THE WRIT

I. The Circuits are Split as to When a Trial Court May

Properly Preclude a Defense Witness from Testifying as a

Sanction for the Failure to Comply with Applicable

Disclosure Rules.

In this case, the state trial court allowed two un-noticed

alibi witnesses to testify but precluded the testimony of a

third un-noticed alibi witness, whom the State had never

even heard of before. The state court did not determine that

defense counsel’s failure to give alibi notice had been

“willful,” but found that the State had been deprived of its

opportunity to investigate the precluded witness and to

protect the trial process from the influence of perjurious

testimony. The Second Circuit set aside the state conviction

on the theory that willful misconduct by defense counsel is a

prerequisite to the preclusion of a last-minute alibi witness.

The Ninth Circuit has held similarly. See United States v.

Peters, 937 F.2d 1422, 1426 (9th Cir. 1991). That position,

however, conflicts with that of the majority of the circuits to

have considered the issue.

The First, Fifth, Seventh, Tenth, and District of

Columbia Circuits all have rejected the position that this

Court’s opinion in Taylor v. Illinois, 484 U.S. 400, 108 S.

Ct. 646, prevents a court from precluding alibi testimony not

disclosed to the prosecution in accordance with applicable

notice requirements except upon a finding that defense

counsel’s failure was the result of willful misconduct. For

example, the First Circuit has stated that Taylor “declined to

cast a mechanical standard.” Chappee v. Vose, 843 F.2d 25,

29 (1st Cir. 1988). In that Court’s own words, the First

Circuit has “never held that willfulness is the sole predicate

of an exclusionary sanction,” United States v. Portela, 167

10.

F.3d 687, 705 n.16 (ist Cir. 1999). In the same vein, in

United States v. Johnson, 970 F.2d 907, 911 (D.C. Cir.

1992), the District of Columbia Circuit stated that “any

requirement of bad faith as an absolute condition to

exclusion would be inconsistent with the Taylor Court’s

reference to trial court discretion and its extended discussion

of the relevant factors.”

The Fifth Circuit has stated that Taylor gives “little

guidance for determining when the preclusion sanction is

permissible.” United States v. Alexander, 869 F.2d 808, 812

(5th Cir. 1989), cert. denied, 493 U.S. 1069 (1990). By the

same token, the Seventh Circuit has maintained that Taylor

“appears to leave the question open” of whether the

exclusion of a defense witness is permissible only if the

violation of the discovery order was “deliberate.” Tyson v.

Trigg, 50 F.3d 436, 445 (7th Cir. 1995), cert. denied, 516

U.S. 1041 (1996). That Court further noted that discovery

rules “are empty if they cannot be enforced, and weak if they

can be enforced only against willful violators.” Id. As

articulated by the Seventh Circuit, “[gliven the competing

considerations identified” in Taylor, a federal habeas court

should not disturb a state court’s discovery ruling unless

“convinced” that the ruling was “wnreasonable.” Id.

In Watley v. Williams, 218 F.3d 1156 (10th Cir. 2000),

cert. denied, 531 U.S. 1089 (2001), the Tenth Circuit held

that the state court reasonably applied Taylor in upholding

the preclusion of a defense alibi witness even though the

attorney’s failure to give the requisite notice was not willful.

Just as in this case, the state court had emphasized that the

prosecution would suffer prejudice if the un-noticed alibi

testimony were admitted. 218 F.3d at 1159. In addition, just

as the trial court in this case referred to “perjurious

testimony” (Tr. 359), the state appellate court in Watley had

commented that, “because of its late discovery, [the

precluded witness’s] testimony calls into question the

11

integrity of the judicial process.” 218 F.3d at 1159.

Tellingly, the Tenth Circuit concluded:

Reasonable minds may disagree about the

appropriateness of excluding an alibi witness

whom Petitioner’s counsel did not willfully

omit, but under [section 2254(d)(1)] we are

limited to applying existing Supreme Court

- precedent. Because the New Mexico Court of

Appeals reasonably applied Taylor v. Illinois,

we affirm the district court's denial of

Petitioner’s claim for relief.

Id. at 1159-60.

' Accordingly, there is a split in the circuits as to when a

trial court may properly preclude a defense witness from

testifying as a sanction for the failure to comply with

applicable disclosure rules. The need for resolution of this

split among the circuits cannot be underestimated.

Alibi-notice statutes or rules are commonplace in the

various states. In addition to the New York. alibi-notice

statute, the other two states in the Second Circuit,

Connecticut and Vermont, have rules requiring advance

notice of alibi witnesses. See Connecticut Rules for the

Superior Court §§ 762-68; V.R.Cr.P. 12.1. The federal

judicial system itself is governed by an_alibi-notice

requirement. Fed. Rules Cr. Proc. Rule 12.1, 18 U.S.C.A.

(2003 Pocket Part). Further, as stated in the notes

accompanying the initial enactment of the Federal Rule,

prohibiting the testimony of a witness as to whom the

defense has not given the requisite notice is a “common

provision” in state alibi-notice statutes. Notes of Advisory

Committee on Rules, Rule 12.1, Fed. Rules Cr. Proc. Rule

12.1, 18 U.S.C.A. at 76 (West Publishing 1986). As the

notes explain, “[iJt is generally assumed that the [preclusion]

12

sanction is essential if the notice-of-alibi rule is to have

practical significance.” Id. The judicially-imposed

restriction of the preclusion sanction to those extraordinary

cases in which the record affirmatively shows that defense

counsel’s failure to give alibi notice was the result of willful

misconduct would eviscerate alibi notice requirements.

Certainly, with the decision in this case, courts and

prosecutors can no longer rely on New York’s alibi-notice

statute, and also act at their peril in seeking the preclusion

sanction authorized under Connecticut's and Vermont’s

alibi-notice rules. And, as the law now stands, similar alibi

notice statutes irrationally will have different consequences

depending on the jurisdiction in which a crime is committed.

As this Court has expressly recognized, alibi testimony

“can be fabricated” with “ease.” Williams v. Florida, 399

USS. 78, 81, 90 S. Ct. 1893, 1896 (1970). Because of that

reality, alibi-notice requirements are “designed to enhance

the search for truth in the criminal trial by insuring both the

defendant and the State ample opportunity to investigate

certain facts crucial to the determination of guilt or

innocence.” Id. at 82, 90 S. Ct. at 1896. The current split in

the circuits undermines that salutary goal.

Further, the Second Circuit position does not give effect

to the full panoply of interests and concerns identified by this

Court in Taylor v. Illinois. Taylor held that the Sixth

Amendment right to present a defense does not create an

absolute bar to the preclusion of the testimony of a

previously undisclosed defense witness. See 484 US. at

410-16, 108 S. Ct. at 653-56. This Court stated that “[i]t

would demean the high purpose of the Compulsory Process

Clause to construe it as encompassing an absolute night to an

2 Notably, under Vermont’s rules, preclusion of the testimony of

an un-noticed alibi witness is mandatory, “except for good cause

shown.” V.R.Cr.P. 12.1(e).

13

automatic continuance or mistrial to allow presumptively

perjured testimony to be presented to a jury.” Id. at 416, 108

S. Ct. at 656. With respect to the facts of the particular case,

this Court held that defense counsel’s willful misconduct

supported the use of the preclusion sanction. Id. at 417, 108

S. Ct. at 657. This Court did not, however, further hold that

the preclusion sanction could never properly be employed

where defense counsel did not engage in willful misconduct.

To the contrary, this Court stated that “it is neither necessary

nor appropriate for us to attempt to draft a comprehensive set

of standards to guide the exercise of discretion in every

possible case.” Id. at 414, 108 S. Ct. at 656. Rather than

iron-clad rules, this Court called for a balancing process:

The integrity of the adversary process, which

depends both on the presentation of reliable

evidence and the rejection of unreliable

evidence, the interest in the fair and efficient

administration of justice, and the potential

prejudice to the truth-determining function of

the trial process must also weigh in the

balance.

Id. at 414-15, 108 S. Ct. at 656. °.

By according determinative weight to whether defense

counsel acted in bad faith, the Second Circuit gives

improperly short shrift to the other factors that this Court

expressly identified in Taylor v. Illinois as bearing on the

propriety of the use of the preclusion sanction. Indeed, even

while the Second Circuit gave lip service to the prejudice to

the State from an eleventh-hour defense alibi witness, the

breezy reference to “minimiz[ing]” such prejudice did not

give proper weight to that factor. In addition, the Second

Circuit position essentially ignores what Taylor emphasized

was “the broader public interest in a full and truthful

ina

—

disclosure of critical facts.” 484 U.S. at 412, 108 S. Ct. at

654.

It is of no small moment that the panel that affirmed the

grant of the writ of habeas corpus in this case itself expressed

doubt that the Second Circuit position that un-noticed alibi

testimony cannot be precluded except when there is a finding

of willful misconduct constitutes a proper interpretation of

Taylor v Illinois. Unfortunately, the panel felt constrained —

by Second Circuit precedent not to re-examine that position.

Only this Court therefore can rectify the law in the Second

and Ninth Circuits, make the law across jurisdictions

uniform by resolving the split in the circuits, and establish

that Taylor v. Illinois should not be interpreted in a way that

eviscerates alibi-notice statutes.

Il. Under Williams v. Taylor, the court below wrongly

applied Second Circuit law when there was no clearly

established law from this Court.

The splitin the circuits as to how to understand Taylor v.

Illinois has a special significance in this habeas corpus case

that went unnoticed in the courts below. Under this Court’s

seminal decision in Williams v. Taylor, 529 U.S. 362, 120 S.

Ct. 1495, the mere existence of a dramatic conflict in the

circuits means that the state court rulings here did not run

afoul of “clearly” established Federal law, as required before

a federal habeas court may properly sei aside a state criminal

conviction. As stated in Williams v. Taylor, “Congress

viewed § 2254(d)(1) as an important means by which its

goals for habeas reform would be achieved.” 529 US. at

404, 120 S. Ct. at 1518. To that end, current habeas law

constrains the power of a federal habeas court to set aside

state criminal convictions, see id. at 412, 120 S. Ct. at 1523,

to instances in which a state court decision runs afoul of

“clearly established Federal law, as determined by” this

15

“

Court. 28 U.S.C. §2254(d)(1). When different circuits

interpret the same Supreme Court opinion differently, the

ineluctable conclusion is that there is no “clearly

established’”’ Supreme Court precedent with which a state

court decision could be in conflict.

‘Again, it is telling that the Second Circuit panel itself

stated that, while it felt constrained to reach the result it did

under the Second Circuit’s prior opinion in Noble v. Kelly, it

doubted whether the position that a tnal court could not

preclude an un-noticed alibi witness absent a finding of

willful misconduct by defense counsel was a correct

interpretation of this Court’s opinion in Taylor v. Illinois.

Under Williams v. Taylor, none of the circuit court opinions

discussing the interpretation of Taylor v. Illinois itself

constitutes clearly established federal law for habeas

purposes. The Second Circuit and the district court both

were wrong to feel constrained by Noble v. Kelly, when

Taylor v. Illinois was the true_touchstone.

In fact, for reasons discussed in detail in the briefs below,

but too lengthy for inclusion in a petition for certiorari, the

preclusion of Bernardo’s un-noticed alibi testimony when the

defense was allowed to call two other alibi witnesses, at the

very least, constituted a reasonable balancing of the various

factors mentioned in Taylor v. Illinois. The state court

decisions in this case therefore constituted a reasonable

application of federal law. Thus, the Second Circuit decision

in this case is at odds not only with the law in other circuits

but also with the intent of Congress, as reflected in the

current habeas statute, and as repeatedly recognized in this

Court’s decisions, to give deference to state court decisions.

16

Ill. The federal courts did not give proper deference to

the state court’s determination that the preclusion of

Bernardo’s testimony did not deprive Bohan of a fair

trial.

The analysis in this case of the prejudice prong of the

standard set forth in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984), also conflicts with this Court’s

habeas jurisprudence. Williams v. Taylor established that

“an unreasonable application of federal law is different from

an incorrect or erroneous application of federal law.” 529

U.S. at 412, 120 S. Ct. at 1522 (emphasis in the original).

What that meant, said this Court, was that

[A] federal habeas court may not issue the

writ simply because that court concludes in its

independent judgment that the relevant state-

court decision applied clearly established

federal law erroneously or incorrectly. Rather

that application must also be unreasonable.

Id. Echoing those principles, this Court stated in Woodford

v. Visciotti, 537 U.S. 19, 27, 123 S. Ct. 357, 361 (2002):

[U]nder § 2254(d)(1), it is not enough to

convince a federal habeas court that, in its

_ independent judgment, the _state-court

decision applied Strickland incorrectly. The

fedéral habeas scheme leaves primary

responsibility with the state courts for these

judgments, and authorizes federal-court

intervention only when a state-court decision

is objectively unreasonable.

(internal citation omitted).

17

The district court in this case determined that the state

appellate court’s conclusion that the preclusion of

Bernardo’s testimony “could not have deprived [Bohan] of a

fair trial,” 257 A.D.2d at 444, 684 N.Y.S.2d at 515, was

“incorrect[],” 234 F.Supp.2d at 254. The Second Circuit left

that determination undisturbed. But, in fact, the federal

district court here did precisely what this Court’s decisions

teach that a federal habeas court should not do -- it

substituted its own independent judgment with respect to the

- Strickland prejudice prong for the judgment of the state

appellate court.

Had the district court focused on the correct issue of

whether the state appellate court’s decision was “objectively

unreasonable,” its own statements show that the writ should

not have been granted. After all, how could it have been

objectively unreasonable for the state court to conclude that

the preclusion of Bernardo’s testimony did not prejudice

Bohan when the district court itself stated that the record

“gives cause for some hesitation,” that there was “more than

sufficient evidence presented at trial for a rational juror to

conclude that Bohan committed the murder in question,” and

that “[t]he jury may very well have discredited the testimony

of’ Bernardo? 234 F.Supp.2d at 252. The strength of the

trial evidence of Bohan’s guilt by itself was an appropriate,

‘objective basis for the state court’s conclusion. Another

objective basis was provided by the weakness of the alibi

testimony that the defense did present at trial. And, as the

First Circuit has stated, “[i]f it is a close question whether the

state decision is in error, then the state decision cannot be an

unreasonable application.”” McCambridge v. Hall, 303 F.3d

24, 36 (1st Cir. 2002). W

This Court should use this case to reiterate that a federal

habeas court must conduct the Strickland analysis with the

appropriate deference to the relevant state court. That is

necessary both to give effect to the congressional intent

18

reflected in current habeas law and to prevent claims of

ineffective assistance of counsel from becoming a backhand

vehicle for eviscerating alibi-notice requirements.

CONCLUSION

For the aforementioned reasons, petitioner, Robert

Kuhlmann, respectfully requests this Court to grant this

petition for a writ of certiorari to review the judgment of the

Second Circuit setting aside Bohan’s state murder

conviction.

Respectfully submitted,

ROBERT M. MORGENTHAU

District Attorney, New York County

MARK RYAN DWYER*

SYLVIA WERTHEIMER

Assistant District Attorneys

New York County District Attorney’s Office

1 Hogan Place

New York, New York 10013

(212) 335-9310

*Counsel of Record for the Petitioner

December 12, 2003

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