# Appendix — Kuhlmann v. Bohan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0824%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2004
- **Citation:** 540 U.S. 1213

## Text

—_— met, Uns.

03 877 NOV 142003

IN THE OFPICE OF THE CLERK

Supreme Court of the Gnited States

No.

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

APPENDIX TO 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
November 14, 2003

: |

APPENDIX

TABLE OF CONTENTS

Page
SUMMARY ORDER OF THE COURT OF APPEALS
FOR THE SECOND CIRCUIT .........--:essssssesserseeesesesneenenennensnrensscanenssess la
ORDER OF THE COURT OF APPEALS FOR THE SECOND
CIRCUIT DENYING REHEARING AND REHEARING EN
ABUT o cnvastussunlvcands toesbiueiaaneneilnansusseasiesncienasenyauaenmunndctebeiaeenontreAOFAt 4a
OPINON AND ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
ST WI ao ssicsiccsininssnnevmrcdiovenav enue ncegranedentnnangananenesavnmntiestt nese sD eener 5a
THE MAGISTRATE’S REPORT AND RECOMMENDATION ........ 43a

DECISION OF THE APPELLATE DIVISION, FIRST
DEPARTMENT. ......00:.0scccscescossssscsececsoscssaracncsarsnssoasssnsnccncanssnsnoncessnneots 107a

la

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN
THE FEDERAL REPORTER AND MAY NOT BE CITED AS
PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER
COURT, BUT MAY BE CALLED TO THE ATTENTION OF
THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE
OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE
FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES
JUDICATA.

ROBERT BOHAN, 02-2580(L),
03-2050(XAP)

Petitioner-Appellee-Cross-Appellant,

-against-

ROBERT KUHLMANN, Superintendent,
Sullivan Correctional Facility,

Respondent-Appellant-Cross-Appellee

June 16, 2003, Decided

2a

PRESENT: HON. ROGER J. MINER, HON. DENNIS JACOBS,
HON. JOSE A. CABRANES, Circuit Judges.

APPEARING FOR
PETITIONER-APPELLEE-
CROSS-APPELLANT: JOEL A. BRENNER,
East Northport, NY.
APPEARING FOR
RESPONDENT-APPELLANT-
CROSS-APPELLEE: SYLVIA WERTHEIMER,

Assistant District Attorney,
New York County, NY
(Robert M. Morganthau,
District Attorney,

Mark Dwyer, Assistant
District Attorney, on the
briefs).

Appeal from the United States District Court for the
Southern District of New York (Marrero, J.).

UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that the case is
AFFIRMED.

The government appeals from a final judgment in the
United States District Court for the Southern District of New York
(Marrero, J.) granting Robert Bohan's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. We affirm for substantially

3a

the reasons stated by the district court. See Bohan v. Kuhlmann,
234 F. Supp. 2d 231 (S.D.N.Y. 2002).

The district court optnion relies upon Noble v. Kelley, 246
F.3d 93 (2d Cir.), cert. denied, 534 U.S. 886, 151 L. Ed. 2d 139,
122 S. Ct. 197 (2001). Although this panel is likewise constrained
by that precedent, we have doubts as to whether Taylor v. Illinois,
484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1988), prohibits
state courts from precluding an un-noticed alibi witness from
testifying if less onerous sanctions are available, absent a finding
of wilfulness.

We also granted a Certificate of Appealability on the issue
of whether comments by the prosecution during summation
deprived Bohan of a fair trial. Because Bohan is entitled to habeas
reliefon other grounds, we decline to decide this issue and dismiss
this separately docketed cross-appeal (docket no. 03-2050).

4a

UNITED STATES COURT OF APPEALS
OR THE SECINO CIRCUIT
TMURGCOOD MARSHALL UNITED STATES COURT NOUSE
40 FOLSY SQUARE
NE\Y YORK ‘0007

ROSESMN 3. ACNECM NIE

CUSHA

Docket No. 02-2$80(L}, 03-2050ixap)

RUBLE.

Responcenc -Acce!_anc -cr3ss-Appelilee.

A pec:t:icon for pane! renear:ng and a petition for rehearing en banc
nhaving Seen i:led herein by che acpellanc-cross-acpellee Roper= Kunlmann,

Uocn consideracion by the panel thac decided che aoneal, it is
QOraerecd chac saic pet:tion Cor renear:ing is DENIED.

It is furthers nected thac the pecicion for rehearing en banc has been
Cransmictead £3 the judges for che csurt in regular active service and to any
otner judge tnac heard the appeai and chac no such judge has requesced thac a
voce be taken thereon.

FOR THE COURT:
ROSEANN 3. MACKECHNIE, Clerk
by

‘\
pobar +f. VAI ene

Laura Sass 2enn
Mctions Starf® Attorney

So 3 ece
inbancdn_frm

Sa

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ROBERT BOHAN,
Petitioner-Appellee-Cross-Appellant,
-against-

ROBERT KUHLMANN, Superintendent, Sullivan
Correctional Facility,

Respondent-Appellant-Cross-Appellee.

JOEL A. BRENNER, ESQ.
— Attorney for Petitioner
East Northport, NY

ROBERT M. MORGENTHAU
District Attorney New York County
New York, NY
Attorney for Respondent
By: Sylvia Wertheimer.
Assistant District Attorney
One Hogan Place
New York, New York 10013

VICTOR MARRERO, D.J.

6a

Petitioner Robert Bohan ("Bohan") was convicted on July 13,
1995, in New York State Supreme Court, New York County (the
"Trial Court") for murder in the second degree. On June 7, 2000,
Bohan filed a petition for a writ of habeas corpus in this Court,
pursuant to 28 U.S.C. § 2254 ("§ 2254"), asserting, inter alia,
that:.(1) there was insufficient evidence to sustain his conviction;
(2) the Trial Court's preclusion of testimony from an alibi witness
violated his rights under the Compulsory Process Clause of the
Sixth Amendment; (3) he was deprived of his right to be present at
all material stages of the trial: (4) he was denied a fair trial due to
prosecutorial misconduct; (5) he was denied effective assistance of
counsel at trial; and (6) the Trial Court violated his rights under the
Fifth and Fourteenth Amendments by imposing the maximum
sentence for his conviction. The Court referred the case to
Magistrate Judge James C. Francis IV and on December 28, 2001,
he issued a Report and Recommendation (the "Report"),
recommending that the writ be granted because Bohan's trial
counsel was ineffective and because the preclusion of Bohan's alibi
witness violated his Sixth Amendment right to present a defense.
The Report is attached and incorporated hereto. For the reasons
discussed below, the Court fully adopts the Report and
Recommendation of Magistrate Judge Francis and grants Bohan's
writ of habeas corpus.

1. BACKGROUND

A. The Facts

On January 12, 1993, at approximately 10:25 p.m., Joseph
Alvarez ("Alvarez") was selling crack cocaine under a streetlight in
front of 448 West 167th Street in Manhattan when a man wearing a
hood shot him twice in the chest and back, killing him. Bohan was

Ja -

indicted for murder in connection with this incident. At trial, the
prosecution argued that Bohan committed the murder on account
of a dispute that Bohan and his brother, Nicholas, had with Alvarez
and an associate of Alvarez named Junior. The dispute had arisen
six months earlier during an incident in which Nicholas Bohan
punched Junior and Junior pulled out a gun and fired in response.
(Tr. at 66.)' A prosecution witness named Jamal Williams
("Williams"), who had been a long-time friend of Bohan's, testified
that he had witnessed the dispute. After the incident, Williams
attended a number of meetings in a nearby McDonald's restaurant
with Bohan and Alvarez. According to Williams, in one of the
meetings, Bohan threatened to "get" both Williams and Alvarez if
they did not help him find Junior. (Tr. at hy

Williams and another prosecution witness, Michael Jenkins,
further testified that they saw Bohan murder Alvarez on January
12, 1993>-Witltams said that he was selling crack cocaine with
Alvarez and another associate named Manny Martinez
("Martinez") under a street light when Bohan approached, drew a
gun, and shot Alvarez. (Tr. at 74.) Williams stated that, before the
shooting, he looked straight at Bohan's face from a distance of
approximately three feet. (Tr. at 83.) However, Williams also
testified that he was with Martinez in the hallway of a nearby
building just before Alvarez was shot. (Tr. at 84, 123.) The day
after the shooting, Williams identified Bohan in a police line-up as
the shooter (Tr. at 77), but during the trial Williams pointed to
Bohan's brother when asked to identify the assailant. (Tr. at 66.)
Williams also stated that he was scared to testify because he
believed that Bohan had "people on the outside." (Tr. at 113.)

' “Tr.” refers to the transcript from Bohan’s trial.

? Williams gave contradictory information about who was present
during the meetings in McDonald’s. Furthermore, other witnesses testified that
they attended meetings with Bohan and Alvarez in the same McDonald’s, but
none of them testified that Williams was present. Id.

8a

Jenkins testified that on the night of the murder, Bohan
approached Alvarez, coming within fifteen to twenty feet of
Jenkins, and fired three shots. (Tr. at 187.) Unlike Williams,
Jenkins identified Bohan in the courtroom as the person who shot
Alvarez. Shawn Criss ("Criss"), the Government's third eyewitness
from the murder scene, testified that he was six to seven feet away
from Alvarez when the shooting occurred. According to Jenkins, it
was dark and he "didn't really look" at the shooter. (Tr. at 139.)
The only description he could provide was that the assailant was
light-skinned, "Spanish looking" and wearing a sweatshirt with his
hood up. (Tr. at 141-42.)

In defense, Bohan called Carmen Rodriguez ("C. Rodriguez"),
who was incarcerated at Rikers Island ("Rikers"), to testify.
Because C. Rodriguez had tested positive for tuberculosis, the
Trial Court took her testimony via video from a room at Rikers and
presented a recording of the testimony to the jury. (Tr. 217, 314.)
Bohan was present during her testimony but seated in an adjacent
room that contained a glass partition through which he could see
the interview.

Prior to the trial, Bohan's attorney, Earl Rawlins ("Rawlins")
had asked the Government to interview C. Rodriguez, with the
hope that she would disclose information that would persuade the
Government to dismiss the charges against Bohan. Assistant
District Attorney Stuart Silberg ("Silberg"), did meet with C.
Rodriguez at that time and she told him that Bohan did not shoot
Alvarez. (Tr. at 25.) However, several days later C. Rodriguez met
again with-Silberg and Police Detective Michael Vasquez
("Detective Vasquez") and told them that she had lied to Silberg —
because Bohan's father had promised to take care of her if she
testified that Bohan was not the shooter. (Tr. at 432-33, 435-36.) C.
Rodriguez then also stated that on the night of the murder, she was

9a

talking to Alvarez when Bohan approached and shot him. During
her meeting with Silberg and Detective Vasquez, C. Rodriguez
also signed a statement indicating that Bohan was the shooter. (Tr.
at 433-34.) However, in her trial testimony, C. Rodriguez stated
that she neither signed the statement nor told anyone that Bohan
had shot Alvarez. (Tr. at 324-25.)

After the Government presented its case-in-chief, Rawlins
informed the Trial Court and the prosecution that he intended to
call three alibi witnesses: Bohan's grandmother, Julia Feci ("Feci"),
and two of Bohan's friends, Roberto Cruz ("Cruz") and Bernardo
Rodriguez ("B. Rodriguez"). Although Silberg had requested, long
before the trial commenced, that Rawlins provide notice of any
alibi witnesses he intended to call, Rawlins had failed to do so, as
required by section 250.20 of the New York Criminal Procedure
Law ("CPL § 250.20").° Silberg consented to both Feci and Cruz

* The relevant portion of CPL § 250.20 states:

At any time, not more than twenty days after arraignment, the
people may serve upon the defendant or his counsel. . ., 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 . .
., 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
whom he intends to rely. For good cause shown, the court may
extend the period for service of the notice. . ..

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

re pint oi onto Wa

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10a

testifying at trial because Feci had appeared before the grand jury
and had mentioned Cruz's name, thus alerting the prosecution that
these two people might be called by the defense. In contrast,
Silberg claimed that he had never known about B. Rodriguez and
objected to his testifying at trial. (Tr. at 222-23, 302-03.)

Feci testified that, on the night of the murder, Bohan and
several of his friends, including Cruz, were in her apartment at 640
West 171st Street..She was upset with them because they had
damaged her furniture. At one point, she testified that Cruz said
goodnight at 10:15 p.m. (Tr. at 232). According to Feci, soon
thereafter, Bohan entered her room, apologized for breaking a bed,
and watched a television program with her until 11 p.m. (Tr. at
232-33, 246.) Later in her testimony, she said that Cruz left at
10:30 (Tr. at 233, 243) and that Bohan came to her room at 10:45
p.m. and stayed until 11 p.m. (Tr. at 244-47.)

Cruz testified that, on the night of the murder, he was in the
apartment with Bohan, Bohan's brother Nicholas, and two other
friends named Angel Zapata ("Zapata") and Jason Pena ("Pena").
According to Cruz, soon after 10 p.m., Feci threw him and the
other visitors out of her apartment because they had broken a bed.
He testified that he said goodnight to Feci at 10:05 p.m. and left
ten minutes later. He arrived at his apartment, which was across
the street, at 10:30. He later testified that he was unsure of when he

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.

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.

lla

left Feci's apartment but he was sure that he reached his apartment
by 10:30. (Tr. at 265, 269-70.)

After Cruz testified, Rawlins indicated that he intended to call
B. Rodriguez. The Trial Court held a hearing outside the presence
of the jury, pursuant to People v. Dawson, 50 N.Y.2d 311, 321,
428 N.Y.S.2d 914, 406 N.E.2d 771 (1980), to allow Silberg to
inquire into the reason for B. Rodriguez's failure to inform law
enforcement authorities that Bohan had not committed the murder.
B. Rodriguez testified that on the night of the murder, around
10:05 or 10:10 p.m., he was returning from work when he saw
Cruz, Zapata, Pena and Albert Montilla ("Montilla") standing on
the street in front of 640 West 171st Street. (Tr. at 283.) When he
approached them, they explained that Feci had thrown them out of
her apartment. At that point, which was around 10:10 or 10:15
p.m., B. Rodriguez looked up at the window of Feci's apartment
and saw Bohan standing and talking to Feci. (Tr. at 285).
According to B. Rodriguez, Bohan seemed upset. (Id.) He
remained at that location on the street until 11:10 or 11:15 p.m.
(Tr. at 284.) B. Rodriguez said he learned two days later that
Bohan had been charged with killing someone. (Tr. at 287.) He
testified that he did not go to the police to report what he had
witnessed because he thought that Bohan had been wrongly
accused and that Bohan "was going to come home in a couple of
days." (Tr. at 288.)

Approximately one month after the murder, B. Rodriguez
learned that the murder victim was from West 167th Street. (Tr. at
291.) He could not recall if anyone told him the victim's name. B.
Rodriguez knew that Bohan had been arrested for the murder and
had not come home yet. (Id.) His family told him to talk to Bohan's
attorney. One of his parents told him to talk to the police and the
other told him not to. (Tr. at 293.) He testified that he felt he was
doing enough by talking to Bohan's attorney. (Tr. at 294.)

12a

Soon thereafter, B. Rodriguez spoke with Rawlins and at his
request B. Rodriguez wrote out a statement about what he had seen
on the night of the murder. On March 10, 1994, B. Rodriguez
faxed the statement to Rawlins. Although Rawlins was required to
provide the written statement to Silberg before trial, Rawlins
mistakenly asserted that Bohan's previous attorney had received
the statement from B. Rodriguez and that he was unaware that
Silberg had not received it.{(Tr. at 297.) Silberg asserted that the
Trial Court should preclude B. Rodriguez from testifying at trial
not only because "defense counsel did not comply with the alibi
statute," but also because of "the prejudice . . . to the people
because we had not had enough time to investigate Mr.
Rodriguez." (Tr. at 357.) Silberg further asserted that Bohan would
not be prejudiced by the exclusion of B. Rodriguez because the
Government had consented to the testimony of two other alibi
witnesses, namely Feci and Cruz. (Tr. at 358.) The Trial Court
precluded B. Rodriguez's testimony, stating:

I'm convinced . . . [that] this is a violation of the
alibi statute and something improper has occurred
here. The 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 prior - we

* There is nothing in the record to suggest that this mistaken assertion
was intentional. Bohan did, in fact, have an attorney before Rawlins named
Barry Weinstein. (Tr. 298.) Rather, Rawlins mistaken assertion that he did not
personally receive the statement is consistent with his explanation that he did not
file an alibi notice for B. Rodriguez because he had forgotten about the
statement until the morning of the Dawson hearing. As discussed below, his
mistakes appear to have resulted from carelessness and incompetence rather than
any attempt to gain a tactical advantage during the trial.

13a

are at the end of the trial. . . . No good cause has
been given by you for failure to serve an alibi
notice, let alone come up with an entirely new
witness who your alibi witness in the grand jury did
not mention.

(Tr. at 359-60.) Later, Rawlins claimed that B. Rodriguez had in
fact come to his office in 1994, but since he was unfamiliar with B.
Rodriguez's name at the time, he decided not to do anything with
the statement until other alibi witnesses, with whom he was
familiar, came forward. Rawlins claimed that he had forgotten
about the statement until the morning of the Dawson hearing, when
he happened to be going through Bohan's file because another alibi
witness had called him. (Tr. at 345.)

At the conclusion of the tnal on July 13, 1995, the jury found
Bohan guilty of murder in the second degree. The Trial Court later
sentenced him to the maximum term of imprisonment, which was
twenty five years to life. On March 19, 1998, Joel Brenner,
Bohan's current attorney, appealed Bohan's conviction to the New
York Appellate Division, First Department (the "Appellate
Division"), asserting, inter alia, that Bohan received ineffective
assistance of counsel and that the Trial Court's preclusion of B.
Rodriguez violated Bohan's nmght under both the New York
Constitution and the Sixth Amendment of the United States
Constitution to present a defense.

In a Memorandum Decision, dated January 12, 1999, the
Appellate Division rejected all of Bohan's claims. Regarding the
alleged ineffective assistance of counsel, the Appellate Division
stated that "defendant received meaningful representation.
Counsel's alleged errors could not have deprived defendant of a
fair trial." People v. Bohan, 257 A.D.2d 443, 684 N.Y.S.2d 514,
515 (App. Div. Ist Dep't 1999) (citation omitted). Regarding the

14a

Trial Court's preclusion of B. Rodriguez's testimony, the Appellate
Division stated that "the trial court properly exercised its discretion
in precluding defendant from calling a third alibi witness, since the
defense concededly failed to give proper alibi notice pursuant to
[CPL § 250.20] and since the People were deprived of the
opportunity to conduct a proper investigation regarding any of the
alibi testimony." Id. Bohan appealed the Appellate Division's
decision, and on March 15, 1999, the New York Court of Appeals
denied Bohan's application for leave to appeal. See People _v.
Bohan, 93 N.Y.2d 871, 711 N.E.2¢ 047, 689 N.Y.S.2d 433 (N.Y.
1999).

Bohan filed the instant petition on June 7, 2000. Magistrate
Judge Francis held hearings on August 2 and October 1, 2001 to
"determine whether Bernardo Rodriguez's testimony would have
been cumulative had he been permitted to testify at trial and to
explore the circumstances of Mr. Rawlins'[s] failure to serve any
alibi notice.” (Report at 20.) At the August 2, 2001 hearing, Bohan
testified that he told Rawlins in November or early December of
1993 that he had an alibi, more than one year before his trial.
(Transcript of August 2, 2002 Evidentiary Hearing before
Magistrate Judge James C. Francis IV ("First Fed."), at 12.) Bohan
told Rawlins that his grandmother, Cruz, Pena, Zapata, Montilla
and B. Rodriguez were all alibi witnesses. (First Fed. at 13.)
According to Bohan, after his arrest, B. Rodriguez told Feci that he
was "downstairs" on the night of the murder. (First Fed. at 13.)
When Bohan learned of this from Feci, he told Rawlins about B.
Rodriguez. Rawlins asked Bohan for B. Rodriguez's number.

Before the trial, Bohan asked Rawlins if he was going to call B.
Rodriguez. Rawlins replied that "he had a witness" from the scene
of the murder who would testify that the shooter was not Bohan.

15a

(First Fed. at 20.)° As discussed above, Rawlins failed to serve the
prosecution with an alibi notice as required under New York law.
After Bohan was convicted, Rawlins told Bohan that he should
appeal on the grounds that the preclusion of B. Rodriguez as an
alibi witness was improper. (First Fed. at 14.) According to Bohan,
Rawlins told him that "you got a big issue on appeal . . . because I
fucked up." (First Fed. at 20.)

On cross examination, Silberg presented Bohan with the
transcript from his grand jury testimony. Before the grand jury,
Bohan had testified that several frends of his, including Cruz and
Montilla, had stayed in his grandmother's apartment with him until
11 p.m. (First Fed. at 29.) This grand jury testimony was
inconsistent with B. Rodriguez's March 1994 statement and his
testimony in state court and at the federal hearing that when he
came to the area in front of 640 West 17l1st Street, he saw a
number of friends on the street, including Cruz and Montilla. At
the evidentiary hearing before the Magistrate Judge, Bohan
claimed that this inconsistency was due to a mistake in the grand
jury minutes, as to the time when he testified that Cruz and
Montilla were in the apartment. (First Fed. at 30.) Bohan asserted
that, before the grand jury, he actually testified that his friends left
the apartment around 10 p.m. and the grand jury minutes
incorrectly stated 11 p.m. (First Fed. at 28-29.)

After Bohan testified, his counsel called Silberg to testify about
information he received from Rawlins before trial. Silberg testified
that he knew, from the grand jury minutes, of the potential that
Bohan would put on an alibi defense. (First Fed. at 40.) When
asked how he became aware of B. Rodriguez, Silberg testified that,
on the first day of the trial, as he and Rawlins "were waiting for the

> It appears from the transcript that the witness Rawlins was referring to
was C. Rodriguez. (First Fed. at 21.)

l6a

jury panel to assemble," Rawlins indicated that: "he had some
witnesses to call . . ., he believed some of those witnesses were
alibi witnesses," and that although Silberg was "aware of some of
those witnesses because they were mentioned in the grand jury, .. .
there might be other witnesses as well." (First Fed. at 40-41.)
Silberg further testified, "I'm not sure if [Rawlins] actually told me
[B.] Rodriguez's name at that time." (First Fed. at 41.) Later in the
hearing, Silberg testified that when Rawlins told him about the
potential alibi witnesses off the record, he was "troubled by
learning about Mr. Rodriguez." (First Fed. at 48.)°

Silberg testified that he told Rawlins that he was not happy that
he had not received an alibi notice and that they would have to
discuss the matter on the record with the judge. (Id.) He also stated
that he was less concerned about the alibi witnesses whom he
knew about and was very concerned about the witnesses he had
never heard about. (Id.) Silberg already had information on some
of the potential alibi witnesses, such as Pena, Zapata, Montilla and
Cruz. After the murder, they had been interviewed by Detective
Vasquez and had signed statements. The statement of each of these
witnesses indicated that, except for Cruz, they were with Bohan in
his grandmother's apartment at the time of the murder. (First Fed.
at 43.)

According to Silberg, had he known about B. Rodriguez
earlier, he would have "checked into it or, if nothing else, at least
think about it and factor it into my case... ." (Id. at 42.) When
Silberg learned about B. Rodriguez, he made inquiries and

° In the Report, the Magistrate Judge correctly notes that it appears
from the trial transcript that Silberg actually first heard of B. Rodriguez's name
at the Dawson hearing on July 12, 1995, seven days after the jury selection. (See
Report at 25 (citing Tr. at 303, 355).

17a

discovered that he had no criminal record.’ (Id. at 45.) Silberg also
spoke with a detective in the homicide investigations unit who was
able provide Silberg with some information about B. Rodriguez
and a relative of B. Rodriguez's who was suspected of having
connections with a narcotics dealer. (Id. at 46.)

On October 1, 2002, the Magistrate Judge conducted a second
hearing to allow Rawlins to testify. Rawlins indicated that he never
provided Silberg with notice for any of the alibi witnesses that he
called at tnal, although they discussed the issue. (Transcript of
October, 2002 Evidentiary Hearing before Magistrate Judge James
C. Francis IV ("Second Fed."), at 3-4.) When asked why he did not
comply with the notice requirement of the alibi statute, Rawlins
stated: "I did not recall having specific information prior to the
time that I had reviewed the file, just before the trial, and found a
specific worthwhile letter in there that would be useful to have
testimony, alibi testimony." (Second Fed. at 4.) According to
Rawlins, once he became aware of B. Rodriguez's letter, he told
Silberg that he had alibi witnesses to call. (Id.) On cross
examination, Silberg asked Rawlins whether he was wary about
providing information about B. Rodriguez because he was afraid
that it "wouldn't work out well if [Silberg] had an opportunity to
speak with Mr. Rodriguez." (Second Fed. at 7.) Rawlins replied,
"no it's the contrary - I would be more than happy to give you that
letter so you could check it out." (Id.) Silberg also asked Rawlins if
he told Bohan that he "fucked up with the alibi in the case."
(Second Fed. at 10.) Although Rawlins could not specifically recall
whether he told Bohan that he had made a mistake, he testified that
he told Bohan that his alibi defense presented an appealable issue.

” Silberg could not recall whether the other potential alibi witnesses,
such as Cruz, Zapata, Montilla and Pena, had criminal records. (First Fed. at 47.)

18a

(Id.) During the hearing, Rawlins conceded that his handling of
Bohan's alibi defense "certainly was a mistake." (Id.)

On December 28, 2001, the_Magistrate Judge issued a seventy-
four page Report and Recommendation, which carefully analyzed
each of the grounds that Bohan raised in his petition. The Report
concludes that: (1) there was sufficient evidence to support
Bohan's conviction; (2) his absence from the examination room
during the questioning of C. Rodriguez did not affect the fairness
of his trial and was, at most, harmless error; (3) the Trial Court's
rulings on the admissibility of statements by witnesses that they
were afraid did not violate Bohan's constitutional rights; (4) the
prosecutor did not engage in misconduct during his summation;
and (5) the trial judge did not violate Bohan's Fifth Amendment
rights when she sentenced him. However, on Bohan's two
remaining claims, the Magistrate Judge concluded that: (1) the
Trial Court's preclusion of alibi testimony violated the Compulsory
Process clause of the Sixth Amendment of the United States
Constitution; and (2) Rawlins's failure to comply with the alibi
notice statute deprived Bohan of effective assistance of counsel. As
a result, the Magistrate Judge recommended that the writ be
granted. On January 4, 2002, Bohan filed objections to the Report,
asserting, among other things, that the Report: (1) fails to consider
"internal inconsistencies" in certain testimony before concluding
that there was sufficient evidence to sustain Bohan's conviction;
and (2) incorrectly concludes that Bohan's exclusion from the room
where C. Rodriguez testified was subject to a harmless error
analysis. On January 30, 2002, respondent Robert Kuhlmann,
Superintendent of the Sullivan Correctional Facility (the "State")
filed objections to the Report, asserting, inter alia, that: (1) the
Report does not accurately convey the import of the trial evidence;
and (2) Bohan is not entitled to habeas corpus relief based on the
preclusion of B. Rodriguez's testimony or on the alleged
ineffective assistance of counsel.

19a

II. DISCUSSION
A. STANDARD OF REVIEW

1. The Report and Recommendation

The Federal Magistrate Act provides that a district judge may
"designate a magistrate to conduct hearings, including evidentiary
hearings" in order to "submit to a judge of the court proposed

findings of fact and recommendations for the disposition . . . of
applications for post-trial relief made by individuals convicted of
criminal offenses .. . ." 28 U.S.C. § 636(b)(1)(B) (2000). In

reviewing the Report, this Court "may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate." 28 U.S.C. § 636(b)(1)(2000); see Fed. R. Civ. P.
72(b). Any party may object to the Magistrate Judge's findings
and recommendations. See id. If an objection is timely filed, as is
the case here, the Court is bound to make a "de novo determination
of those portions of the report . . . or recommendations to which
objection is made." Id. See United States v. Male Juvenile, 121
F.3d 34, 38 (2d Cir. 1997). Having conducted a careful de novo
review of the Magistrate Judge's well-reasoned Report, and of the
objections by Bohan and the State, the Court fully adopts the
findings and recommendation of the Report. The majority of issues
raised by Bohan are meritless and the Court declines to add to the
findings of the Report.* However, because Bohan's two

* More specifically, having reviewed the record and Bohan's objections,
the Court finds that: (1) there was sufficient evidence for a rational juror to
conclude, beyond a reasonable doubt, that Bohan committed the charged
murder; (2) Bohan's exclusion from the room where C. Rodriguez testified did
not violate his constitutional rights; (3) the prosecutor did not engage in

20a

meritorious claims present significant issues, the Court addresses
them below.

2. Exhaustion

A federal court may entertain a petition for a writ of habeas
corpus only where the petitioner has first "exhausted the remedies
available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A)
(2000). See Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92
S. Ct. 509 (1971); Caballero v. Keane, 42 F.3d 738, 740 (2d Cir.
1994); Daye v. Attorney General of New York, 696 F.2d 186, 190
(2d Cir. 1982). This requirement mandates a habeas petitioner to
have "fairly presented" in state court the claims that are raised in
the habeas petition. Picard, 404 U.S. at 275. See Duncan v.
Henry, 513 U.S. 364, 365-66, 130 L. Ed. 2d 865, 115 S. Ct. 887
(1995); Strogov v. Attorney General of New York, 191 F.3d 188,
191 (2d Cir. 1999), cert. denied, 530 U.S. 1264, 147 L. Ed. 2d 987,
120 S. Ct. 2723 (2000); Gonzalez v. Sullivan, 934 F.2d 419, 422
(2d Cir. 1991).

3. AEDPA

The Court notes that, because Bohan's petition was filed after
the effective date of the Anti-Terrorism and Effective Death
Penalty Act ("AEDPA"), this action is governed by the habeas
statute as amended. See Williams v. Taylor, 529 U.S. 362, 146 L.
Ed. 2d 389, 120 S. Ct. 1495 (2000); 28 U.S.C. § 2254. Pursuant
to the various sub-sections of § 2254, this Court's review is guided
by certain restrictions on the nature and extent of review that a
federal court can conduct in considering a habeas petition.

misconduct; and (4) the Trial Court's imposition of the maximum sentence did
not violate Bohan's rights under the Fifth and Fourteenth Amendments of the
United States Constitution.

2la

In a habeas corpus proceeding, "a determination of a factual
issue made by a state court shall be presumed to be correct." 28
U.S.C. § 2254(e)(1) (2000). Petitioner, however, may rebut the
presumption by clear and convincing evidence. See id.
Consequently, this Court presumes that the factual findings of the
New York courts are correct and will not set aside those findings
unless "the material facts were not adequately developed at the
State court hearing" or the court's factual determinations are not
fairly supported by the record. Smith v. Mann, 173 F.3d 73, 76 (2d
Cir. 1999).

4. AEDPA's "Contrary to" and "Unreasonable
Application" Prongs

As amended, Section 2254(d) of the AEDPA provides that:

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 ....

28 U.S.C. § 2254(d)(1) (2000). The United States Supreme Court
recently decided the proper interpretation of § 2254(d)(1) and the
manner in which a federal court is to consider the legal conclusions
of a state court. See Williams, 529 U.S. at 362. The Court held that
§ 2254(d)(1) defines two categories of cases, each with
independent meaning, in which a state prisoner may obtain federal
habeas relief with respect to a claim adjudicated on the merits in

22a

state court. See id. at 404-06. Parsing the explicit text of the
statute, the Court stated that a federal court may grant a writ of
habeas corpus if the state court decision is either (1) "contrary to . .
. Clearly established Federal law, as determined by the Supreme
Court of the United States" or (2) "involved an unreasonable
application of . . . clearly established Federal law, as determined by
the Supreme Court of the United States." Id.

A state court's decision may be held contrary to clearly
established Supreme Court precedent in either of two occasions:
(1) "if the state court applies a rule that contradicts the governing
law set forth in [the Court's] cases" or (2) "if the state court
confronts a set of facts that are materially indistinguishable from a
decision of [the] Court and nevertheless arrives at a result different
from [the Court's] precedent." Id. at 405-06. Regarding the
"unreasonable application" prong of § 2254(d)(1), the Court held
that a state court decision involves an unreasonable application of
its precedent "if the state court identifies the correct governing
legal principle from [the] Court's decisions but unreasonably
applies that principle to the facts of the prisoner's case." Id. at 407.
The Court further commented that:

[A]n unreasonable application of federal law is
different from an incorrect application of federal
law. . . . Under § 2254(d)(1)'s "unreasonable
application" clause, then, 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.

23a

Id. at 411. The relevant inquiry under this clause, therefore, is
"whether the state court's application of clearly established federal
law was objectively unreasonable." Id. at 409.

The Court further addressed the meaning of the phrase "clearly
established Federal law." See id. at 412. The phrase restricts the
source of clearly established law exclusively to the Supreme
Court's jurisprudence-- "the holdings, as opposed to dicta, of [the]
Court's decisions as of the time of the relevant state-court
decision." See id. Accordingly, this Court, sitting as a federal
habeas court in reviewing Bohan's petition, is guided by and
restricted to applicable United States Supreme Court precedent.
Because this Court concludes that the New York state courts
adjudicated Bohan's claims on the merits, the Court finds that
Williams does apply to this case.

B. PRECLUSION OF BOHAN'S ALIBI WITNESS

1. The Sixth Amendment Right to Present a Defense

Under the Sixth Amendment to the United States Constitution,
every criminal defendant has "the nght to . . . have compulsory
process for obtaining witnesses in his favor." U.S. Const. Amend.
VI. Pursuant to the Sixth Amendment, criminal defendants have a
right to "the government's assistance in compelling the attendance
of favorable witnesses at trial and the right to put before the jury
evidence that might influence the determination of guilt." Taylor v.
Illinois, 484 U.S. 400, 408, 98 L. Ed. 2d 798, 108 S. Ct. 646
(1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 56, 94 L.
Ed. 2d 40, 107 S. Ct. 989 (1987)). Every person accused of a
crime has a fundamental nght to present witnesses in his own
defense. See id. (citing Chambers v. Mississippi, 410 U.S. 284,

24a

302, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973)). Such a right is an
"essential attribute of the adversary system itself." Id. The right to
compel a witness's presence in the courtroom could not protect the
"integrity of the adversary process if it did not embrace the night to
have the witness's testimony heard by the trier of fact." Id. at 409.
It is well-settled that an accused person's right to present witnesses
in his defense is fundamental:

The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant's version of the facts as well
as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the
purpose of challenging their testimony, he has the
right to present his own witnesses to establish a
defense. This right is a fundamental element of due
process of law.

Id. (quoting Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d
1019, 87 S. Ct. 1920 (1967)).

However, this right is not unlimited. See id. at 410; see also
Noble v. Kelly, 89 F. Supp. 2d 443, 454 (2000), aff'd, 246 F.3d 93
(2d Cir.), cert denied, 534 U.S. 886, 151 L. Ed. 24.139, 122 S. Ct.
197 (2001). For example, a court may limit the presentation of
evidence if it is concerned about "harassment, prejudice, confusion
of the issues, the witness's safety or interrogation that is repetitive
or only marginally relevant." Noble, 89 F. Supp. 2d at 454 (quoting
Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674, 106
S. Ct. 1431 (1986)). As the Supreme Court stated in Taylor:

25a

The principle that undergirds the defendant's right
to present exculpatory evidence is also the source of
essential limitations on the right. The adversary
process could not function effectively without
adherence to rules of procedure that govern the
orderly presentation of facts and arguments to
provide each party with a fair opportunity to
assemble and submit evidence to contradict or
explain the opponent's case. . . . The State's interest
in the orderly conduct of a criminal trial is sufficient
to justify the imposition and enforcement of firm,
though not always inflexible, rules relating to the
identification and presentation of evidence.

484 US. at 410-11.

In a criminal trial, the state clearly has a very strong interest in
the orderly presentation of evidence that will assist a trier of fact to
ascertain the truth. Such an interest includes "protecting itself
against an eleventh-hour defense." Id. at 411. To achieve this end,
New York, like many other states, has enacted an alibi-notice
statute, requiring defendants to provide the prosecution with notice
if they intend to pursue an alibi defense and call witnesses to this
end. See CPL § 250.20. The Supreme Court has specifically
approved of such a statute, as applied in a particular case in
Florida:

Given the ease with which an alibi can be
fabricated, the State's interest in protecting itself
against an eleventh-hour defense is both obvious
and legitimate. Reflecting this interest, notice-of-
alibi provisions, dating at least from 1927, are now
in existence in a substantial number of States. The
adversary system of triai is hardly an end in itself; it

26a

is not yet a poker game in which players enjoy an
absolute mght always to conceal their cards until
played.

Williams v. Florida, 399 U.S. 78, 81-81, 26 L. Ed. 2d 446, 90 S.
Ct. 1893 (1970).

In the instant case, the Appellate Division rejected Bohan's
claim that the Trial Court's preclusion of B. Rodriguez's testimony
violated his nght to compulsory process under the Sixth
Amendment. In his Report, the Magistrate Judge concluded that
the Appellate Division's denial of this claim was "contrary to. . .
clearly established federal law," as the term is used in §
2254(d)(1). (See Report at 62.) The Report states: "By not
considering 'whether defense counsel had wilfully or in bad faith
failed to comply with the alibi notice requirement,' the Appellate
Division did not follow Supreme Court precedent as established in
Taylor, 484 U.S. at 415." (Id.) (quoting Noble, 89 F. Supp. 2d at
461.) The Magistrate Judge further found that even if the
"unreasonable application" clause of § 2254 were controlling, "it
would not alter the results." (Report at 62-63.) Furthermore, the
Magistrate Judge concluded that the Trial Court's error of
precluding the testimony of B. Rodriguez was not harmless.

The State makes numerous objections to the Report's findings
that the Trial Court's preclusion of testimony from B. Rodriguez
was constitutional error that prejudiced Bohan's defense. It asserts
that: 1) the Report did not correctly apply the deferential standard
of review mandated by AEDPA;’ 2) the Report incorrectly

® The Court agrees with the State's assertion that Bohan's claims were
"adjudicated on the merits," such that the AEDPA standard of review applies.
See Sellan v. Kuhlman, 261 F.3d 303, 310 (2d Cir. 2001). However, the Court
notes that the Magistrate Judge's Report essentially agrees with this assertion

27a

concluded that the state court's rejection of Bohan's Sixth
Amendment claim was "contrary to" or "an unreasonable
application" of the Supreme Court's opinion in Taylor; 3) even if
the state court did violate Bohan's constitutional rights, the Report
incorrectly found that the error was prejudicial. For the reasons
discussed below, the Court disagrees with each of the State's
objections.

In its objections to the Report, the State asserts that "to the
extent that it purported to analyze petitioner's claims under the
AEDPA standard of review, the Report did not correctly apply the
relevant components of that standard." (See Respondent's
Objections to the Magistrate Judge's Report and Recommendation,
dated January 25, 2002 (the "State's Obj."), at 14.) In support of
this argument, the State contends that the "contrary to" clause of §
2254 does not apply "since the state court decision did ‘not
explicitly refer to either the federal claim or the relevant federal
caselaw,' the federal courts are not in a position to know what the
Appellate Division did or did not consider in rejecting that claim."
(State's Obj. at 14 (quoting Sellan, 261 F.3d at 311).) This
argument is misplaced. Sellan does not support the State's
proposition that the decision of a state cour: is immune to being
"contrary to" established federal law simply because the state court
failed to articulate its analysis. In fact, the Second Circuit held the
opposite to be true. See Sellan, 261 F.3d at 312 ("We recognize
that a state court's explanation of the reasoning underlying its
decision would ease our burden in applying the ‘unreasonable
application’ or ‘contrary to' tests. However, the absence of an
explanation does not absolve us from performing the same task.").

and applied this standard of review. (See Report at 60 ("[Bohan's claim] appears
to have been adjudicated on the merits").)

a Ri AS ne

28a

The State also asserts that, even if the "contrary to" language in
§ 2254 applies to the instant case, the Magistrate Judge "did not
correctly interpret and apply the relevant components of that
standard." (State's Obj. at 14.) The Court disagrees. In a decision
that pre-dated Taylor, the Second Circuit held that alibi testimony
is so critical that it cannot be excluded notwithstanding procedural
defaults, even when, as in the instant case, counsel "offered the
court no reasonable explanation" for failure to comply with the
state notice requirements for alibi testimony. Escalera v. Coombe,
826 F.2d 185, 188 (2d Cir. 1987) ("Escalera I"). The Supreme
Court vacated Escalera I and remanded the case for
reconsideration, in light of its analysis in Taylor. See Coombe v.
Escalera, 484 U.S. 1054, 98 L. Ed. 2d 971, 108 S. Ct. 1004 (1988).
The Second Circuit, in turn, remanded the case to the district court
for further inquiry consistent with Taylor:

[The district court judge] did note in his opinion
below that the attorney's "apparent bad faith--or, at
least, the absence of a good excuse--was evident" in
the failure properly to give notice of his intent to
call [an alibi witness]. But this alone is not enough.
The absence of a good excuse is not necessarily
commensurate with "willful" conduct and it is not
readily clear whether Escalera's attorney was, in
fact, motivated by a desire to obtain a tactical
advantage.

Escalera v. Coombe, 852 F.2d 45, 48 (2d Cir. 1988) (per curlam)
("Escalera II") (qu. Escalera v. Coombe, 652 F. Supp. 1316,
1324 (E.D.N.Y. 1987)) (emphasis added).

In Noble, the district court addressed a similar issue: Whether a
state court's preclusion of alibi witness testimony violated a
defendant's compulsory process rights under the Sixth

29a

Amendment. See Noble, 89 F. Supp. 2d at 454-59. There, during
the petitioner's trial in state court, his counsel had attempted to call
an alibi witness, whose name he had failed to disclose to the
prosecution in a timely manner, as required by CPL § 250.20. See
id. at 448. The trial court granted the prosecution's application to
exclude the alibi testimony, due to defense counsel's failure to
comply with CPL § 250.20. See id. In doing so, the trial court
considered and rejected defense counsel's assertion that preclusion
was unnecessary because a short adjournment would provide the
prosecution with sufficient time to prepare for the unnoticed alibi
witness. See id. at 449.

On habeas review, the federal district court held that the tral
court's failure to inquire into the willfulness of defense counsel's
conduct violated the defendant's Compulsory Process rights under
the Sixth Amendment. See id. at 457. ("[W]here, as is the case
here, the record discloses no indication that the trial court ever
considered whether defense counsel's failure to comply with the
notice requirement was designed to frustrate the truth-seeking
function of the trial, we conclude that the court's exclusion of the
alibi evidence violated the defendant's mghts under the
Compulsory Process Clause."). The district court concluded that
this finding was "reinforced by the minimal degree of prejudice
that an alternative sanction would have caused the prosecution." Id.
More specifically, the court found that: (1) during the state trial in
question, "unlike the typical alibi defense," the prosecution had a
"wealth of evidence about the place where the defendant claimed
to have been and about other witnesses who might contradict that
testimony;" (2) since the alibi witness in question was "proffered
after the close of the prosecution's case," no prosecution witnesses
would have been inconvenienced by a brief delay; and (3) had the
trial court allowed the alibi witness to testify, but granted the
prosecution additional time to prepare a cross-examination or to
adduce rebuttal testimony, "the record from which the jury would

30a

be asked to render a verdict would have been more complete and
accurate, not less." Id.

The Second Circuit affirmed, stating that "under the
circumstances of this case, the state trial court could have used less
onerous sanctions (such as an adjournment) to minimize any
prejudice to the prosecution, and that a finding of willfulness was
therefore required to justify the exclusion of [the precluded
witness's] testimony.” Noble, 246 F.3d at 100 (citing Noble, 89 F.
Supp. 2d at 457) (emphasis added). However, the Second Circuit
explicitly declined to address the level of willfulness that would
provide a trial court with sufficient grounds to properly exclude
alibi testimony:

We [] need not decide whether, and to what extent,
a finding of willfulness is required in every case.
For purposes of the present case, we need only
conclude that where prejudice to the prosecution
can be minimized with relative ease, a trial court's
exclusion of alibi testimony must be supported by a
finding of some degree of willfulness in defense
counsel's violation of the applicable discovery rules.

Noble, 246 F.3d at 100 n.3. Accordingly, under the reasoning of
Noble, if the Trial 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
the testimony of B. Rodriguez.'°

'° Citing the Supreme Court's ruling in Williams, the State asserts that

the Second Circuit's decision in Noble is irrelevant to the instant petition
because "only Supreme Court precedent is relevant under the AEDPA, and
Noble was not a decision of the Supreme Court." (State's Obj. at 15.) Williams,
however, does not indicate that a district court is required, or even permitted, to
disregard the Circuit's interpretation of "clearly established Federal law, as

3la

Applying this standard, the Magistrate Judge found that: (1)
"the trial court could have minimized any prejudice to the
prosecution with a short adjournment;" (2) "the prosecution in this
case had a wealth of evidence about the place where the defendant
claimed to have been and about other witnesses who might
contradict Mr. Rodriguez's testimony;" and (3) "Mr. Rodriguez
'was proffered as a witness after the close of the prosecution's case
and so no prosecution witnesses would have been inconvenienced
by a short delay." (Report at 58 (quoting Noble, F. Supp. 2d at
457).) The Magistrate Judge also found that there was no evidence
that Rawlins's failure to "give notice of Bernardo Rodriguez was
willful or motivated by a desire to gain a tactical advantage."
(Report at 53.) The Court agrees. Crediting Bohan's statement
about Rawlins's explanation for failing to provide notice
concerning B. Rodriguez's alibi testimony, and Rawlins's own
apparently equivocal reasons, the record convincingly supports a
finding that Rawlins simply mishandled the matter as opposed to a
finding that he sought to achieve some tactical advantage.

The State contends that the Report's conclusion that the
prejudice from the testimony of an unnoticed alibi witness could
have been minimized by a short adjournment was "erroneous."
(State's Obj. at 24-25.) However, in Noble the Second Circuit did

determined by the Supreme Court... ." 28 U.S.C. § 2254. Such a reading of
Williams is inconsistent with the history and structure of our federal courts.
Furthermore, subsequent to the Second Circuit's decision in Noble, at least one
appellate state court in New York has acknowledged that "under the federal
standard, if the explanation proffered by [a] defendant for the untimely
application to file alibi notice reveals that the omission was willful and
motivated by a desire to obtain a tactical advantage, the witness's testimony may
be properly excluded." People v. Walker, 743 N.Y.S.2d 403, 404 (App. Div. Ist
Dep't May 21, 2002). The logical implication of Walker is that if the defendant's

proffered explanation does not reveal that the omission was willful, the witness's
testimony may not be excluded.

32a

not state that, under the facts of that case, a short adjournment
would have eliminated all prejudice to the prosecution. It merely
stated that the prejudice to the prosecution could have been
minimized with relative ease. The same is true in the instant case.
Although it is not entirely clear that Silberg had a "wealth of
evidence" about the relevance of people loitering on the street
below Feci's apartment, the Court agrees with the Report that the
Trial Court could have minimized any prejudice to the prosecution
with a short adjournment and that the prosecution's witnesses
would not have been inconvenienced by a short delay. If the
accounts of all of Bohan's alibi witnesses, including B. Rodriguez,
were Clearly a sham, as the State contends (see State's Obj. at 24),
then impeachment of these witnesses should not have been as
difficult as the State maintains. Cruz had already testified and
Montilla was present during parts of the tnal. (See State's Obj. at
24 n.15.) The State could have used a short adjournment to
prepare for further questioning of these two individuals.''

The State also maintains that the Report is incorrect in its
conclusion that neither the Trial Court nor the Appellate Division
made any findings about the willfulness of Rawlins's conduct.
(State's Obj. at 21 n.13.) The Court disagrees. When the Tnal
Court precluded B. Rodriguez's testimony it stated: "I'm precluding
this witness. It's a clear violation of the Statute. And in my
discretion, you have not given me good cause why this man's name
[was] not served as an alibi... ." (Tr. at 308.) Rawlins later tried to

'' The Court also questions the level of difficulty the State would have
faced in calling Zapata and Pena, who were both incarcerated at the time of the
trial. There is no indication that Bohan or anyone associated with him attempted
to meet with these potential witnesses before or during trial and again, if B.
Rodriguez's account of events was fabricated, as the State maintains, then
testimony by these two individuals potentially could have revealed that falseness
to the jury.

33a

argue that the State was improperly reserving its objections for
defense witnesses who had no criminal record. In response, the
Court stated:

You are mixing apples and oranges. I'm more
convinced this is a violation of the alibi statute and
something improper-has occurred here. The point of
these notices is that you have a right to put on a
defense, but [the] People have a nght to prevent
perjurious testimony from being presented to the
jury and the way [that] they can do that is if they
have an opportunity to investigate prior [to trial].

(Tr. at 359-360.) Although the Trial Court stated that it was
convinced that "something improper has occurred," it made no
further inquiries into the reasons for Rawlins's failure to provide
"good cause" for not serving an alibi notice. See Escalera II, 852
F.2d at 48 ("The absence of a good excuse is not necessarily
commensurate with willful conduct .. . .") (quotation omitted).
Furthermore, by emphasizing that the "People have a nght to
prevent perjurious testimony from being presented to the jury," the
Trial Court suggested that what it considered "improper" may have
been B. Rodriguez's potential fabrication of testimony. There is
simply nothing in the record to indicate that the Trial Court made
any clear findings, considered or intended as such, with respect to
Rawlins's willfulness, or that Rawlins's failure to comply with the
notice requirements of the alibi statute was due to anything more
than defense counsel's ill-preparation and blunder.

2. Harmless Error

When a defendant's constitutional mghts have been violated
due to trial error, habeas relief is warranted only if the error "had
substantial and injurious effect or influence in determining the

ee |

34a

jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637) 123 L.
Ed. 2d 353, 113 S. Ct. 1710 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776, 90 L. Ed. 1557, 66 S. Ct. 1239
(1946)).'* n12 As noted in the Report, the Second Circuit has
recently articulated the proper standard for a harmless error
analysis of witness preclusion:

Whether the exclusion of [witnesses'] testimony
violated [defendant's] right to present a defense
depends upon whether "the omitted evidence
[evaluated in the context of the entire record]
creates a reasonable doubt that did not otherwise
exist." In a close case, "additional evidence of
relatively minor importance might be sufficient to
create a reasonable doubt." On habeas review, trial
errors are subject to lenient harmless error review.
The creation of otherwise non-existent reasonable
doubt satisfies the "substantial and injurious"
standard [of Brecht].

Washington _v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001)
(quoting Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000). In his
Report, the Magistrate Judge concluded that "Mr. Rodriguez's
testimony places the petitioner at home during the time period
unaccounted for by other witnesses, thus providing critical support
to Mr. Bohan's alibi. . .." (Report at 67.)

'? The Court agrees with the Report that, because the Appellate
Division found that the instant case presented no constitutional error, the issue
of harmlessness was not adjudicated on the merits. (See Report at 64 n.29.) As a
result, the Court need not address the question of whether the Brecht standard

applies to post-AEDPA claims that are adjudicated on the merits. See Noble,
246 F.3d at 101 n.5.

35a

In its objections to this aspect of the Report, the State contends
that even if the preclusion of B. Rodriguez's testimony violated
Bohan's constitutional mghts, contrary to the findings of the
Report, any error was harmless. (See State's Obj. at 31.) In support
of this position, the State essentially reiterates arguments fhat were
thoroughly considered and rejected by the Magistrate Judge. !t
asserts that: (1) the Report understates the strength of testimony
identifying Bohan as the murderer; (2) the Report ignores the
obvious biases of the alibi witnesses; (3) B. Rodriguez's testimony
would have added nothing to the credibility of other alibi -
witnesses; and (4) B. Rodriguez's failure to approach law
enforcement authorities earlier would have drastically undermined
the credibility of his testimony. (See State's Obj. at 32-33.) In spite
of these objections, the Court agrees with the Report's conclusion
that the preclusion of B. Rodriguez as an alibi witness was not
harmless error.

As the Report notes, "in his summation, the prosecutor argued
that the testimony from the two alibi witnesses was not
inconsistent with the prosecution's theory of the case, because
neither could account for the petitioner's whereabouts from a little
after 10:00 to 10:45 p.m.; thus giving him enough time to commit
the murder." (Report at 66.) During summation, Silberg told the

jury:

The most important thing about Ms. Feci in the
context of the-defendant's case . . . is [that] she was
too late. . . . She says [she saw the defendant at]
10:45, the murder occurred four or five blocks away
at 10:25, so there is enough time to commit the
murder and get back. .. . You heard from Roberto
Cruz, too early. He said he's playing video games
and leaves defendant around 10:00....

36a

When you put the two witnesses together [Feci and
Cruz] . . . what you get is too early and too late.
Defense calls the grandmother and Roberto Cruz,
they didn't call [Zapata], [Pena] or [Montilla], didn't

call any of the other people . . . . Why aren't they
calling the people with the defendant at the time of
the crime?

(Tr. at 517-18.) It is somewhat disingenuous for the State to now
claim that, in making this argument, the prosecutor was only trying
to "refrain from a direct, frontal assault on the credibility of
petitioner's 79-year old, hard-of-hearing grandmother, and on that
of petitioner's long-time friend." (State's Obj. at 35.) Had the
prosecutor felt that a "direct, frontal assault" of the alibi testimony
would have been more effective in persuading the jury of the
State's case, it is highly unlikely that he would have refrained from
utilizing such a tactic. Instead, a review of the record reveals that
the gap in time, highlighted by the prosecutor on summation "bore
on an issue that [was] vlainly critical to the jury's decision; . . . was
material to the establishment of the critical fact [and was not]
instead . . . cumulative; and [concerned issues] emphasized in
arguments to the jury." (Report at 68 (quoting Wray v. Johnson,
202 F.3d 515, 526 (2000)).) See also Noble, 89 F. Supp. 2d at 458-
59. B. Rodriguez would have testified that he saw Bohan and Feci
in the window of the apartment at approximately 10:10 or 10:15
and that he stayed on the street until 11:10 or 11:15. (Tr. at 284-
85.) If the jury had credited his testimony, it could have potentially
bolstered the testimony of Bohan's other alibi witnesses who
maintained that he was in Feci's apartment at the time when the
murder occurred.

The State's argument that "Bernardo's time estimate is more
realistically viewed as a deliberate contrivance to help his long-
time friend . . ." (State's Obj. at 36), is of no consequence. As noted

37a

in the Report, the degree to which B. Rodriguez's credibility was
affected by his interests and by inconsistent statements by other
witnesses is a matter for the jury, not the Court. As the Supreme
Court has stated:

[T]he conviction of our time is that the truth is more
likely to be arrived at by hearing the testimony of
all persons of competent understanding who may
seem to have knowledge of the facts involved in a
case, leaving the credit and weight of such
testimony to be determined by the jury or by the
court. . . . We believe that [this] reasoning lis]
required by the Sixth Amendment.

Washington v. Texas, 388 U.S. at 21 (quoting Rosen v. United
States, 245 U.S. 467, 471, 62 L. Ed. 406, 38 S. Ct. 148 (1918);
United States v. Doyle, 130 F.3d 523, 543 (2d Cir. 1997). If the
jury, or any single member of it, were to credit B. Rodriguez's
testimony even partially, so that it created a reasonable doubt about
Bohan's guilt, he would have been acquitted or entitled to a new
trial. The Court thus finds that the record in this case presents a
"grave doubt" as to whether the Trial Court's preclusion of B.
Rodriguez's testimony was harmless. O'Neal v. McAninch, 513
U.S. 432, 436-37, 130 L. Ed. 2d 947, 115 S. Ct. 992 (1995).
Accordingly, the Court concludes that Bohan's writ for habeas
corpus must be granted because: (1) the Tnal Court violated
Bohan's Sixth Amendment night to compulsory process when it
precluded the testimony of B. Rodriguez, absent a finding of
willful misconduct; and (2) the Tnal Court's error was not
harmless.

In reaching this conclusion, the Court is mindful that the record
here gives cause for some hesitation. As the Report correctly notes,
_ there was more than sufficient evidence presented at trial for a

38a

rational juror to conclude that Bohan committed the murder in
question. (See Report at 29-30.) The jury may very well have
discredited the testimony of B. Rodriguez, but, given the critical
importance of the timing of events in this case, the Court does not
find that this outcome was as inevitable as the State asserts.
Ironically, although the prosecution adamantly maintained at trial
that it would be prejudiced by the presentation of B. Rodriguez's
testimony, it now asserts that the same testimony would have been
cumulative and inherently incredible. When, as in the instant case,
rulings by a state court manifesting constitutional error create
grave doubts about their effect on a petitioner's guilty verdict, a
federal court has an obligation to grant a writ of habeas corpus.
O'Neal, 513 U.S. 432, 436-37, 130 L. Ed. 2d 947, 115 S. Ct. 992
(1995) ("In cases of grave doubt as to harmlessness the petitioner
must win"). Although the State has valid interests in the orderly
presentation of evidence and preserving its ability to fully prepare
for the testimony of alibi witnesses, such interests cannot override
a defendant's fundamental right to present witnesses in his defense,
absent a finding a willfulness or bad-faith by the defendant or his
counsel. See Noble, 246 F.3d at 100; cf. In re Winship, 397 U.S.
358, 372, 25 L. Ed. 2d 368, 90 S. Ct. 1068, 51 Ohio Op. 2d 323
(1970) (Harlan, J., concurring) ("In a criminal case, . . . we do not
view the social disutility of convicting an innocent man as
equivalent to the disutility of acquitting someone who is guilty. ...
The requirement of proof beyond a reasonable doubt in a criminal
case is bottomed on a fundamental value determination of our
society that it is far worse to convict an innocent man than to let a
guilty man go free.").

C. INEFFECTIVE ASSISTANCE OF COUNSEL

In his petition, Bohan asserts that Rawlins made numerous
mistakes before and during trial that amounted to ineffective

39a

assistance of counsel. With regard to nearly all of these alleged
mistakes, the Report concluded that Bohan "has not established
that 'but for’ these failings, the outcome of the trial would have
been different." (Report at 49-50 (citing Strickland v. Washington,
466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).) With
respect to Rawlins's failure to serve the prosecution with alibi
notices, however, the Report concluded that his conduct fell
"outside of the wide range of professionally competent assistance,"
and that there is "more than a 'reasonable probability’ that the trial
result would have been different ‘but for’ [his] errors." (Report at
71 (quoting Strickland, 466 U.S. at 694.) The Report also found
that Bohan had exhausted his state remedies for his ineffective
assistance claims, since he raised them in his direct appeal to the
Appellate Division. (See Report at 46-47.) The Court agrees. '°

Under Stnckland, a petitioner who seeks a reversal of his
conviction for ineffective assistance of counsel must establish
that: (1) counsel's performance was deficient, meaning that
"counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment;" and (2) the deficient performance prejudiced the
defense, meaning that "counsel's errors were so serious as to
deprive the defendant of a fair trial, a trial whose result is reliable."
Strickland, 466 U.S. at 687. With respect to the first element, the
petitioner must show that "counsel's representation fell below an
objective standard of reasonableness." Id. at 687-88. With respect
to the second element, a petitioner must show that "there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different." Id. at 694.

'° After conducting a de novo review of Report's findings, the Court
agrees that nearly all of Bohan's grounds for ineffective assistance of counsel are
insufficient to warrant the granting of a writ of habeas corpus. Because
Rawlins's failure to serve alibi notices presents a more difficult question, the
Court addresses this aspect of Bohan's ineffective assistance claim below.

(Ut met Eats.
GES 8 ps (os mre. aren eae

40a

A reasonable probability is "a probability sufficient to undermine
confidence in the outcome.” Id.

In the instant case, the State contends that: (1) the Report
erroneously concludes that Bohan exhausted his ineffective
assistance claims in state court; and (2) Rawlins's deficient
performance did not prejudice the defense because B. Rodriguez's
alibi testimony was "unreliable and even had it been admitted,
would not have affected the outcome of the trial." (State's Obj. at
39.)

Under New York Criminal Procedure Law, § 440.10 ("CPL §
440.10"), a convicted defendant may move a sentencing court to
vacate his judgment on the ground that "material evidence adduced
by the people at a trial resulting in judgement was procured in
violation of the defendant's rights under the constitution of [New
York] or of the United States... ." CPL § 440.10(1)(d). The State
maintains that Bohan's "failure to pursue his ineffective assistance
claim in the state courts by way of a motion under CPL § 440.10
contravenes the firmly entrenched New York rule that only by such
a motion can a proper record be developed with respect to factual
issues that cannot be resolved based on the appellate record alone."
(State's Obj. at 39.)

The Court finds that, contrary to the State's objection, Bohan
exhausted his ineffective assistance of counsel claim. It is well-
settled that "once the state courts have ruled upon a claim, it is not
necessary for a petitioner 'to ask the state for collateral relief, based

'* The state presents no objections with respect to the Report's findings
that Rawlins's failure to serve an alibi notice "was caused by his sheer
ineptitude” and that his conduct "clearly falls outside of the wide range of
professionally competent assistance." (Report at 71 (citing Strickland, 466 U.S.
at 690.) Accordingly, the Court adopts this aspect of the Report and need not
conduct a de novo review of the first prong of the Strickland analysis.

sa IRAE SRNR: ALUMS ATIUE ASG ii a
a a rs i

4la

upon the same evidence and issues already decided by direct
review." Castille v. Peoples, 489 U.S. 346, 349, 103 L. Ed. 2d 380,
109 S. Ct. 1056 (1989) (quoting Brown v. Allen, 344 U.S. 443,
447-449, 97 L. Ed. 469, 73 S. Ct. 397 (1953)). Once the Appellate
Division rejected Bohan's ineffective assistance claim and the
Court of Appeals denied leave to appeal, he had exhausted this
claim in state court. See Castille, 489 U.S. at 351; Meggett v.
Miller, 1994 U.S. Dist. LEXIS 20346, 1994 WL 808048, *5
(S.D.N.Y. July 23, 1994) ("Even if the petitioner failed to comply
with state procedural requirements, he will be deemed to have
exhausted his state-court remedies if the highest state court
nonetheless addresses the claim.").

The Court also agrees with the Report's conclusion that there is
more than a "reasonable probability" that the trial result would
have been different "but for" Rawlins's deficient performance as
Bohan's trial counsel. As discussed above in Part B.2, if Rawlins
had properly filed a notice for B. Rodriguez's alibi testimony and
the jury had heard his testimony, there is at least a reasonable
probability that the outcome of the trial might have been different.
See Strickland, 466 U.S. at 694. In reviewing this claim on direct
appeal, the Appellate Division came to the opposite conclusion:
"On the existing record, which [Bohan] has not sought to amplify
by a motion pursuant to CPL 440.10, we conclude that defendant
received meaningful representation. Counsel's alleged errors could
not have deprived defendant of a fair trial." Bohan, 684 N.Y.S.2d
at 515 (citing People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d
584, 587-88, 674 N.Y.S.2d 629 (N.Y. 1998)). In Benevento,
although the New York Court of Appeals acknowledged that
Strickland established the federal standard for an ineffective
assistance of counsel claim, it applied its own standard that pre-
dated Strickland. See Benevento, 697 N.E.2d at 589. Under the

New York Constitution, a claim of ineffectiveness is "ultimately
concerned with fairness of the process as a whole rather than its

42a

particular impact on the outcome of a case. . . . Thus, whether
defendant would have been acquitted on the charges but for
counsel's errors is relevant, but not dispositive under the State
guarantee of effective assistance of counsel." Id. at 588. As noted
in the Magistrate Judge's Report, this standard is not "diametrically
different" from the standard under Strickland. (See Report at 72-73
(citing Williams, 529 U.S. at 405-06).) In fact, the New York
standard is more expansive than Strickland and would provide
relief to some defendants who would not be entitled to relief under
federal law.

Accordingly, the Court agrees with the Reports’ conclusion that
the Appellate Division's denial of Bohan's ineffective assistance
claim was "an unreasonable application of . . . clearly established
Federal law, as determined by the Supreme Court... ." 28 U.S.C.
§ 2254(d)(1). The Appellate Division incorrectly concluded that
Rawilins's failure to serve the prosecution with an alibi notice for
B. Rodriguez's testimony "could not have deprived [Bohan] of a
fair trial." Bohan, 684 N.Y.S.2d at 515. As discussed above, if the
jury had credited B. Rodriguez's testimony even partially, there is a
reasonable probability that the outcome of the trial would have
been different.

III. CONCLUSION AND ORDER

For the reasons set forth above, it is hereby

ORDERED that Bohan's petition for a writ of habeas corpus is
GRANTED.

43a

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ROBERT BOHAN, 00 Civ. 4225 (VM) (JCF)
Petitioner, REPORT AND
RECOMMENDATION
-against-

ROBERT KUHLMANN, Superintendent,
Sullivan Correctional Facility,

Respondent

TO THE HONORABLE VICTOR MARRERO, U.S.D.J.:

Robert Bohan brings this petition for a wnt of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his conviction for
murder in the second degree following a jury trial before the
Honorable Bonnie Wittner in New York State Supreme Court,
New York Couniy. He argues that: (1) there was insufficient
evidence to support the conviction; (2) the preclusion of testimony
from an alibi witness violated his nmght to present a defense as
guaranteed by the Compulsory Process Clause of the Sixth
Amendment; (3) he was deprived of his night to be present during
all material stages of the trial; (4) he was denied a fair trial due to
prosecutorial misconduct; (5) he was denied effective assistance of
counsel; and (6) the trial court imposed the maximum sentence in
violation of his Fifth and Fourteenth Amendment nghts. Because
Mr. Bohan's counsel was ineffective in failing to serve an alibi

44a

notice and because the preclusion of that witness denied the
petitioner his right to present a defense, I recommend that the writ
be granted.

Background

At about 10:25 p.m. on January 12, 1993, Joseph Alvarez was
selling crack cocaine on the street in front of 448 West 167th Street
in Manhattan when a man wearing a hood approached and shot
him twice in the chest and back, killing him. (Tr. 44-45, 73, 138-
39, 141, 210, 226).' There had been an ongoing dispute among Mr.
Alvarez; the petitioner; the petitioner's brother, Nicholas Bohan;
and another drug dealer known as Junior who was an associate of
Mr. Alvarez. At some point prior to the murder, the petitioner's
brother had punched Junior, who responded by firing a gun at him.
(Tr. 36, 66). Afterwards, Robert and Nicholas Bohan met with
Mr. Alvarez several times tc obtain his help in finding Junior, but
Mr. Alvarez apparently demurred. (1.. 97, 71-72). The prosecution
argued that this motivated the petitioner to murder him. (Tr. 36-
38, 515).

A. Prosecution Witnesses°

' “Tr.” refers to the trial transcript.

* Although the prosecutor said in his Opening statement that it was the
petitioner who had been shot at by Junior, it is undisputed that it was the
petitioner's brother. (Respondent's Appellate Brief, included as Exh. B in
Appendix in Support of Answer Opposing Petition for a Writ of Habeas Corpus
("Resp. App."), at 3).

* Only the testimony of those prosecution witnesses relevant to the
habeas petition is described here.

45a

1. Jamal Williams

The prosecution presented the testimony of three eyewitnesses
at trial, the first of whom was Jamal Williams, a long-time friend
of Mr. Alvarez. (Tr. 62-63). He saw Junior shoot at the petitioner's
brother, and sometime after the incident Mr. Williams and Mr.
Alvarez met with Robert and Nicholas Bohan and a friend of the
Bohans in a McDonald's restaurant.* According to Mr. Williams,
Robert Bohan warned that if Mr. Alvarez and Mr. Williams did not
help him find Junior, he would "get" both of them. (Tr. 66-68, 71).
Two other prosecution witnesses also testified that they had gone
with Mr. Alvarez when he met with the petitioner at McDonald's,
but they contended Mr. Williams was not present. (Tr. 152-53,
167-68, 170-72). Mr. Williams further testified that he had seen
Mr. Bohan about three times a week for six weeks prior to the
murder, though in his grand jury testimony he claimed to have only
seen him a total of three or four times. (Tr. 92-94, 105).

On the night of the murder, Mr. Williams was selling crack
cocaine with Mr. Alvarez and a man named Manny Martinez. (Tr.
63). He denied using the drug that evening but admitted to having
smoked marijuana. (Tr. 64, 81). Mr. Williams said that he was on
the street standing three feet away from Mr. Alvarez when a man
wearing a "cap" approached Mr. Alvarez, uttered a few words, and
then shot him. (Tr. 73-75, 89). However, Mr. Williams told the
grand jury he had been in the hallway of a building rolling a

* Mr. Williams gave contradictory information about who was present
at McDonald's. On direct and cross-examination, he first stated that he met with
the petitioner's brother (Mr. Williams referred to him as Mike although his true
name is Nicholas), not the petitioner, but then identified the petitioner as having
been present. (Tr. 66-68, 70, 92-94).

46a

marijuana cigarette with Mr. Martinez when the shots were fired,
although he claimed that he could see what was going on in the
street. (Tr. 83-84, 123). Mr. Williams also testified at trial that the
assailant wore black pants and a black and white leather jacket, but
had earlier given a statement to the police indicating the shooter
was wearing blue jeans. (Tr. 79, 86). Additionally, during the trial
he described the gun used as silver with a black handle (Tr. 98),
but before the grand jury, he denied having seen the gun. (Tr. 100).

The day after the murder, Mr. Williams identified the petitioner
as the shooter in a line-up. At trial, he also named the shooter as
Robert Bohan but identified the petitioner's brother, who was in the
courtroom, as the assailant. (Tr. 66-68, 457-58). Subsequently, he
denied that the perpetrator was in the courtroom. (Tr. 68-69). Mr.
Williams then admitted that the person who shot Mr. Alvarez was
the petitioner's brother, whom Mr. Williams incorrectly called
Mike Bohan. (Tr. 93). Finally, Mr. Williams claimed Robert
Bohan committed the murder. (Tr. 118).

During Mr. Williams' redirect examination by Assistant
District Attorney Stuart Silberg, the following exchange took place
between Mr. Williams, the judge, Mr. Silberg, and the petitioner's
trial counsel, Earl Rawlins:

MR. SILBERG: Mr. Williams, you scared?

MR. WILLIAMS: _ Yes, I am.

MR. SILBERG: What are you scared of?

MR. WILLIAMS: Mylife.

47a

MR. SILBERG: Why is that?

MR. WILLIAMS: _ Because he got people on the outside.
MR. RAWLINS: Objection. Move to strike.

THE COURT: | Overruled. Come up, please.

[Attorneys approach sidebar for a discussion out of the hearing of
the witness and the jury. ]

THE COURT: First of all, I want to put on the record
what occurred, which I think I'm correct.
I'll stand corrected if I'm not. Right
before the break, Mr. Rawlins was cross-
examining and the witness started crying
and couldn't answer any further
questions. In addition, my observations
have been that throughout this trial there
have been at least two brothers, three
sisters and maybe the father here staring
at this witness and they're constantly
going in and out of the Courtroom. It
was also reported to me that they're
reporting to someone outside the
Courtroom who is a potential witness for
the defense.

MR. RAWLINS:

THE COURT:

MR. RAWLINS:

THE COURT:

MR. RAWLINS:

48a

..../'m moving for a mistrial. Basically
the People have elicited the fact that
there is some fear of the witness.

You got him to say, aren't you testifying
because you want to help out poor Joey
Alvarez's mother. He didn't know what
he was saying. I find [the petitioner's
family] very menacing. I said to the
Court Officers last week, and I'm not a
fearful person, and I said I want to be
escorted outside of this Courtroom.

What do you know about my client that
would make you feel that way?

Nothing. Just the way they're presenting
themselves. It's a public courtroom.
They have a right to be here. I can make
my observations. There's something
about them, the way they look at this
witness -- particularly in light of your
cross that this is fair redirect. Plus the
grand jury testimony. This man said he
was threatened -- this defendant
threatened all 3 of them. He threatened
all 3 of them if they didn't give him
Junior's whereabouts.

That's [Mr. Williams'] testimony. . . .

49a

THE COURT: If the jury doesn't believe it that's fine. It
is a question of fact for the jury to
determine.

(Tr. 113-17).

2. Shawn Criss

On the night of the murder, the second eyewitness, Shawn
Criss, was selling drugs six to seven feet away from Mr. Alvarez.
According to Mr. Criss, the assailant walked up to the victim, said
"You remember me, faggot," and shot him three or four times. (Tr.
138-39, 141, 143). Mr. Criss only glanced at the shooter and
"didn't really look at him," but was able to tell that the shooter was
"white, Spanish looking" and wearing a "hoody" covering his
entire head. (Tr. 139, 141-43, 147). When asked at trial to identify
the culprit, Mr. Criss stated that he did not recognize anybody even
though the petitioner was in the courtroom. The prosecutor then
asked, "Are you scared being here today?" and Mr. Criss agreed.
(Tr. 142-43). Mr. Criss also admitted that he was facing felony
drug charges but was allowed to plead to a misdemeanor after he
agreed to testify for the prosecution. (Tr. 135-36).

3. Michael Jenkins

The last eyewitness presented by the prosecution was Michael
Jenkins. Mr. Jenkins, who was also selling crack on 167th Street
on the night of the murder, testified before the grand jury that he
was unable to identify the shooter because the assailant's head was
covered by a "hoody." (Tr. 180, 198-99). However, at trial he
testified that the petitioner shot Mr. Alvarez (Tr. 183-84), even

50a

though on cross-examination he admitted that he could not clearly
see the shooter's face. (Tr. 192).

He also said that Mr. Williams was on the block when the shots
were fired (Tr. 187), and that the only person standing near Mr.
Alvarez was Mr. Criss. (Tr. 204). As with Mr. Criss, Mr. Jenkins
was also facing drug charges that were reduced prior to his
testifying. (Tr. 195-97).

B. Defense Witnesses

1. Carmen Rodriguez

At the time of the trial, Carmen Rodriguez was incarcerated at
Rikers Island and was being held in the Contagious Diseases Unit
("CDU") because she had tested positive for tuberculosis. In light
of her medical condition, the trial court took her testimony at the
CDU and presented it to the jury via videotape. (Tr. 217, 314).
Present at the facility were the trial judge, Justice Wittner; the
prosecutor, Mr. Silberg; the defense attorney, Mr. Rawlins; the
petitioner; Ms. Rodriguez; her attorney; the stenographer; and a
video technician. At the start of the examination of Ms. Rodriguez,
the judge said, "So the way we are going to do this is defendant
will stay in this room, I will, you” and Mr. Silberg and Mr. Rawlins
will be in the room with the witness and her attorney, Ms.
Davidson." (Tr. 217). Ms. Rodriguez testified that she had known
Mr. Alvarez for seven years and the petitioner for three to four
years. Although she used drugs, she was not taking them when the
shooting occurred. (Tr. 316, 318, 336). When Mr. Alvarez was

° It is unclear from the record who "you" refers to.

Sla

shot, she claimed she was standing two feet away but could not see
the shooter's face clearly because he was wearing a hood. (Tr. 317,
341-42). Nevertheless, she knew it was not the petitioner because
the shooter was short (approximately 5'2") and had dark skin. (Tr.
317-18, 331, 342).°

Prior to trial, Mr. Rawlins had invited the prosecution to
interview Ms. Rodriguez in the hopes of getting the charges
against the petitioner dismissed. (Tr. 214). When first interviewed
by the prosecution, Ms. Rodriguez had maintained that the
petitioner was not the shooter. (Tr. 25, 437). However, during a
subsequent interview with Police Officer Michael Vasquez, she
disclosed she had lied because the petitioner's father had promised
to take care of her if she testified the petitioner was not the shooter.
(Tr. 432-33, 435-36). She then gave a written statement
implicating the petitioner as the shooter. (Tr. 434-35). During the
examination at Rikers Island, Ms. Rodriguez claimed that this
statement was not written by her and denied both that the
petitioner's father ever contacted her and that the petitioner
committed the murder. (Tr. 319, 324-29).

At the conclusion of the examination, the following occurred:

THE COURT: On the record. I want to put on the
record Mr. Rawlins consulted with his
client and gave him the opportunity to be
in the room with Ms. Rodriguez and Mr.

° The petitioner is apparently 5'11" and white. (Memorandum of Law in
Support of the Petition for a Writ of Habeas Corpus ("Pet. Memo.") at 12 n.14).

52a
Rawlins and he declined that. Is that
right?
MR. RAWLINS: Yes.

THE COURT: You had an opportunity to talk to him
both before and after?

MR. RAWLINS: Yes.
(Cond. Ex. Tr. 29).’

2. Alibi Witnesses

Just after the prosecution rested, Mr. Rawlins informed the
court and the prosecution that he planned to call three alibi
witnesses: the petitioner's grandmother, Julia Feci, and two friends
of the petitioner, Roberto Cruz and Bernardo Rodriguez. (Tr. 222-
23). Although Mr. Rawlins did not give the prosecutor alibi notices
for the witnesses as required by state law, the prosecutor consented
to both Ms. Feci and Mr. Cruz testifying because Ms. Feci had
previously testified in the grand jury proceeding and had
mentioned Mr. Cruz's name in her testimony, thus alerting the
prosecution to the possibility of their being called as witnesses.
The prosecutor, however, objected to Mr. Rodriguez testifying
because he had been unable to interview this witness before trial
since his name had never come up in any prior proceedings. (Tr.
222-23, 302-03).

” "Cond. Ex. Tr." refers to the transcript from the Conditional
Examination of Carmen Rodriguez included as Exh. D in Resp. App.

53a

a. Julia Feci

Ms. Feci, who was 79 years old, testified that the petitioner was
living with her at 640 171st Street at the time of the murder. That
night the petitioner was home with several of his friends, and Ms.
Feci was upset with them because they had damaged some of her
furniture. (Tr. 228-29, 231-32). First, she said that one of the
petitioner's friends, Roberto Cruz,® said good night to her at 10:15
p.m., at which point she checked in on the petitioner in his room.
(Tr. 232). "A little while later" the petitioner came into her room to
apologize for breaking a bed, and the two sat by the window and
watched the conclusion of a television show that ended at 11:00
p.m. (Tr. 232-33, 246).” She later claimed Mr. Cruz said good
night to her at 10:30 p.m. (Tr. 233, 243), and the petitioner came in
to her bedroom at the same time and remained there until 11:00 p.
m. (Tr. 234). Finally, she testified the petitioner did not come into
her room until 10:45 p.m. and stayed until 11:00 p.m. to finish
watching the program with her. (Tr. 244-47).

b. Roberto Cruz

According to Roberto Cruz, on January 12, 1993, he was at
Ms. Feci's apartment with Robert and Nicholas Bohan end two
other friends, Jason and Angel. (Tr. 253). Soon after 10:00 p.m.,
Ms. Feci threw the visitors out of the apartment because they had

* Throughout Ms. Feci's testimony, she referred to Mr. Cruz by his
nickname, "Pidge."”

” Ms. Feci first testified that the program aired from 11:00 p.m. to
12:00 a.m. (Tr. 239), but her later testimony makes clear that the show was
broadcast from 10:00 p.m. to 1:00 p.m. (Tr. 244-46).

54a

broken a bed. He claimed he said good night to Ms. Feci at 10:05
p.m. and left ten minutes later with Angel and Jason. He arrived at
home, which was across the street, before 10:30 p.m. (Tr. 254,
263-65). Later, he admitted he was not sure what time he left Ms.
Feci's apartment but was confident he arrived home before 10:30
p.m. (Tr. 265, 269-70).

ae
c. Dawson Hearing ,

Before the prosecutor made any objection to the introduction of
Bernardo Rodriguez's testimony, the trial court held a Dawson
hearing to determine whether Mr. Rodriguez could be cross-
examined about his failure to report the murder to the police.
During the hearing, Mr. Rodriguez testified that on his way home
from work the night of January 12, 1993, he spotted his friends,
Roberto Cruz, Jason, Albert, and Angel, in front of 640 171st
Street, and went over to greet them. (Tr. 283). They explained to
him that Ms. Feci had thrown them out of her apartment, at which
point Mr. Rodriguez looked up and observed the petitioner in the
window of Ms. Feci's second-floor apartment. This was at
approximately 10:10-10:15 p.m. Mr. Rodriguez said Roberto Cruz
left the block early to go to work, but he remained with his friends
on 1 71st Street until 11:00 or 11:15 p.m. (Tr. 284-85).

Mr. Rodriguez found out about the murder two days later from
his brother-in-law, Charlie Abarka, also a friend of the petitioner's,

° A Dawson hearing is held to determine whether the prosecutor may
cross-examine a witness about the witness’ failure to relay exculpatory
information to law enforcement officials. See People v. Dawson, 50 N.Y.2d 31 l,

321, 428 N.Y.S.2d 914, 921, 406 N.E.2d 771 (1980).

55a

but never went to the police. (Tr. 285-86, 288). After the
petitioner's lawyer contacted Mr. Rodriguez, he gave the attorney a
written statement about what had happened the night of January
12. (Tr. 289, 296). This statement, which had a fax date of March
10, 1994, was never provided to the prosecutor. (Tr. 297). Mr.
Rawlins, the petitioner's third attorney, claimed that he had not
taken the statement from Mr. Rodriguez although it was in his file.
(Tr. 297-98). When questioned about the origin of the statement,
Mr. Rodriguez responded that he made the statement at Mr.
Rawlins' request sometime in 1993 or 1994 and then faxed it to
him. (Tr. 300-01). He was emphatic about not having spoken with
any other attorneys. (Tr. 301-02).

When the prosecutor indicated that he might not consent to Mr.
Rodriguez testifying, Mr. Rawlins countered that the prosecution
was selectively objecting to witnesses and did not want Mr.
Rodriguez to testify because, unlike other witnesses, he did not
have a criminal history. The judge responded, "[The prosecution
is] bending over backwards so this won't later become ineffective
assistance of counsel on appeal. I've ordered them to do more than
they are required to do. I did more than I am required to do so this
will not be overturned on an issue like that." (Tr. 305-06). Later
Justice Wittner continued,

[The statement from Mr. Rodriguez] is a year sitting in a defense
file since February '94. It is a 3 page wmitten statement from a
witness who you did not serve alibi notice. It is outrageous, not to
mention the fact that you did not tur over the prior written
statement. I'm precluding this witness. It's a clear violation of the
Statute. And in my discretion you have not given me good cause
why this man's name is not swerved [sic] as an alibi ruling.

56a

(Tr. 308). Mr. Rawlins then tried to argue that Mr. Rodriguez was
not an alibi witness because the time of the murder had not been
established, an argument the judge quickly dismissed. (Tr. 309).

After a recess, Mr. Rawlins admitted that he had met with Mr.
Rodriguez in 1994, but that because he was unfamiliar with Mr.
Rodriguez's name and had not come across it in any of the records,
he decided not do to anything further with the statement until the
other alibi witnesses, with whom he was familiar, came forward.
(Tr. 344-45). Mr. Rawlins then claimed to have forgotten about
Mr. Rodriguez until he went back through his file the morning of
the hearing, after one of the other alibi witnesses had contacted
him. (Tr. 345).

The next day, the prosecution presented additional reasons why
Mr. Rodriguez should not testify based on the investigation
conducted after his identity was revealed. Mr. Silberg produced a
photograph of Mr. Rodriguez's brother-in-law, Mr. Abarca,'! and
the petitioner brandishing guns, and stated that Mr. Abarca was
involved in a drug gang with the petitioner. Based on this limited
inquiry, Mr. Silberg argued that a more thorough investigation was
needed. (Tr. 355-58). Justice Wittner then reaffirmed her ruling
and precluded Mr. Rodriguez from testifying based on Mr.
Rawlins' failure to show good cause for not having served any alibi
notice. (Tr. 360).!?

'' Mr. Silberg referred to Mr. Rodriguez's brother-in-law as Juan
Abarca, whereas Mr. Rodriguez called him Charlie in his testimony. (Tr. 286,
356)

'2 One other witness, Jose Rivera, testified for the defense. Mr. Rivera,
who was a friend of the petitioner's, stated that he was talking on a phone on

S7a

C. Prosecution's Closing Statement

During the prosecutor's summation, the following transpired:

MR. SILBERG: Now, speaking about Jamal Williams, I
don't think anyone here has any doubt
that Jamal Williams was not scared. I
don't think anyone has any doubt that
anyone who testifies in a criminal case
who saw a murder would not be scared
to testify. He indicated he was scared of
the defendant and the defendant's
people. Mr. Rawlins will tell you he still
stayed in the neighborhood. He's still out
on the street.

Ladies and gentlemen, . .. . you
observed him when he broke down
crying. Wasn't that because he was
scared? When he couldn't go on wasn't it
because he was scared? Ask yourselves,
ladies and gentlemen, was Jamal
Williams lying to you or was he scared
about the consequences of him testifying
and pointing someone out in a murder
trial. Also make no mistake when he
pointed out the defendant who else was

167th Street when the murder occurred. Although he could not identify the
shooter, he maintained that it was not the petitioner. (Tr. 364-65, 403, 415).

58a

in the audience? The defendant's father
and the defendant's brother [were] in the
audience. It's not an enviable task to sit
on the stand and point out the murderer
with his family even sitting right behind
him. You better believe Jamal Williams
was scared as anyone would be scared.

Now, Mr. Jenkins was an interesting
witness because Mr. Jenkins was
considerably more self-assured, more
confident, he didn't break down crying,
didn't get upset and one thing you might
want to notice is when you compare
Jamal to Jenkins, when Jamal testified
he told you he was scared to death. Mike
Jenkins didn't indicate he was too scared.
One of the differences between when .
Jamal testified and when Mike Jenkins
testified is the defendant's father was
present when Jamal testified, defendant's
brother was present when Jamal
testified, and neither one of them were
present when Mike Jenkins testified, so
consider the fact how much pressure
there was on Jamal and how much less
pressure there was on Mike because
while he had to face [the] defendant, he
didn't have to face [the] defendant's

59a

family. He didn't have to worry about
that.

MR. RAWLINS: Objection.

THE COURT: Sustained to the last part.

MR. SILBERG: [Mr. Criss] didn't identify the defendant.
Whether Mr. Criss actually saw the
person's face is something for you to
determine or whether he was just too
scared to say who the person was is
something for you to consider.

(Tr. 493-94, 505, 513-14).

D. Verdict and Sentence

On July 13, 1995, the jury found Mr. Bohan guilty of murder in
the second degree. (Tr. 351, 570). He was later sentenced to the
maximum term of imprisonment, twenty-five years to life. (Sent.
Tr. 19-20).'* Throughout the sentencing proceeding, the petitioner
maintained his innocence. (Sent. Tr. 14-16). In handing down her
sentence, Justice Wittner found that

when a young man commits a murder like this without
provocation, after he's been in Family Court, after he's been in the

'> “Sent. Tr." refers to the transcript from the sentencing proceeding
held on October 11, 1995.

60a

Dome Project, after he's had probation, I have no other choice but
to give a sentence that I feel reflects the seriousness, the violence
[of] this crime, and the lack of remorse of this defendant.

(Sent. Tr. 19).

E. Post-trial Proceedings

On March 19, 1998, Joel Brenner, the petitioner's current
attorney, filed an appeal on Mr. Bohan's behalf. He argued that: (1)
the conviction was not supported by sufficient evidence; (2) Mr.
Bohan received ineffective assistance of counsel; (3) his right to be
present during all material stages of the trial had been violated; (4)
the prosecutor committed misconduct throughout the trial; (5) a
ruling allowing the prosecutor to question the petitioner about his
previous drug dealing was reversible error; (6) preclusion of
testimony from an alibi witness violated Mr. Bohan's right to
present a defense both under the state Constitution and the Sixth
Amendment of the federal Constitution; and (7) his sentence was
excessive.

The Appellate Division, First Department affirmed the
conviction, finding that (1) there was sufficient evidence of guilt;
(2) on the existing record the defendant received "meaningful
representation;" (3) the conditional examination of Carmen
Rodriguez was "unreviewable" because the petitioner failed "to
provide a sufficient record to establish that the special seating
arrangements deprived him of the right to be present" and because
he had waived his right to be situated in the same room as the
witness; (4) "the trial court properly exercised its discretion in
precluding [the] defendant from calling a third alibi witness, since

ee ere

6la

the defense concededly failed to give proper alibi notice . . . and
- since [the prosecution was] deprived of the opportunity to conduct
a proper investigation regarding any of the alibi testimony;" (5)
there was no "abuse of sentencing discretion" and the sentence was
"not based on any improper criteria;" and (6) all remaining
contentions were meritless. People v. Bohan, 257 A.D.2d 443,
443-44, 684 N.Y.S.2d 514, 515 (1st Dep't 1999). On March 15,
1999, the Court of Appeals denied leave to appeal. People v.
Bohan, 93 N.Y.2d 871, 689 N.Y.S.2d 433 (1999). Mr. Bohan then
filed the instant petition.

F. Hearing in Federal Court

I held a hearing on August 2 and October 1, 2001, to determine
whether Bernardo Rodriguez's testimony would have been
cumulative had he been permitted to testify at trial and to explore
the circumstances of Mr. Rawlins' failure to serve any alibi notice.
The petitioner also elicited testimony about the examination of
Carmen Rodriguez. The following is a summary of testimony
given at the hearing.

1. Robert Bohan

Mr. Bohan testified he told Mr. Rawlins about his alibi and the
names of witnesses who could verify his whereabouts including,
Jason, Angel, Albert, Ms. Feci, Roberto Cruz, and Bernardo
Rodriguez. (First Fed. Tr. 13).'* Contrary to what he said to the
grand jury, Mr. Bohan claimed that his frends all left the house

'* "First Fed. Tr." refers to the transcript from the hearing held before
the Court on August 2, 2001.

62a

around 10:15 p.m.'° (First Fed. Tr. 18, 23). According to Mr.
Bohan, Mr. Rawlins acknowledged at sentencing that he had
“fucked up" the alibi. (First Fed. Tr. 14).

Mr. Bohan also said that during the examination of Carmen
Rodriguez, he and the video technician were in a separate room
from Ms. Rodriguez, the judge, and counsel. (First Fed. Tr. 33).
The rooms were separated by a plexiglass window so that all
parties could see each other and speakers were set up so that the
petitioner could hear the proceeding. (First Fed. Tr. 21-22, 33-35).
Mr. Bohan denied that Mr. Rawlins asked him if he wanted to be
seated in the same room during the examination and denied ever
hearing Mr. Rawlins waive his right to be present. (First Fed. Tr.
33-34).

2. Bernardo Rodriguez

Mr. Rodriguez testified he had lived on 172nd Street his whole
life. At the time of the hearing, he was an instructor at Intermediate
School 90 and a candidate to become a police officer in the Suffolk
County Police Department. (First Fed. Tr. 67-68). He had no
criminal history but was issued a summons for turnstile jumping,
which was subsequently dismissed. (First Fed. Tr. 76-77).

His testimony regarding the night of January 12, 1993, was
very similar to that which he gave at the Dawson hearing in state

'° In the grand jury proceedings, the petitioner testified that Roberto
Cruz and Albert did not leave the apartment until around 11:00 p.m., and Angel
and Jason stayed until after 11:00 p.m. to help fix the bed. (Grand Jury
Testimony of Robert Bohan, included as Exh. G in Resp. App., at 30, 125).

63a

court. Mr. Rodriguez said that after he got off work at City
College, he went to 171st Street. He arrived there sometime around
10:10 p.m. (First Fed. Tr. 70). Roberto Cruz explained to him that
several of their friends had gotten thrown out of Mr. Bohan's
apartment. (First Fed. Tr. 72, 91). He then looked up at the window
at approximately 10:15 p.m. and saw the petitioner and his
grandmother in a window that faced out onto the street on the
second floor of the building. (First Fed. Tr. 72-73, 91-92). In
addition to Mr. Cruz, Angel, Jason, and Albert were also on the
street. (First Fed. Tr. 89). Mr. Cruz left soon after Mr. Rodriguez
arrived, and when Mr. Rodriguez left at 11:15 p.m,'° only Albert
and Angel were still on the street. (First Fed. Tr. 74, 87-88, 94-95).

3. Michael Vasquez

Officer Michael Vasquez stated that he interviewed Albert
Montilla, Jason Pena, Angel Zapata, and Roberto Cruz about the
petitioner's alibi.

Albert Montilla, who was fourteen at the time of the interview,
gave a signed statement detailing how from 8:30 to 11:30 p.m. he
was with the petitioner, Roberto, Jason, and Angel at the Bohans'
apartment. (First Fed. Tr. 108, 117). Also present in the home were
the petitioner's grandmother, mother, and one sister. (First Fed. Tr.
127). According to Mr. Montilla, he stayed until 11:30 p.m., but
Mr. Cruz left at 10:30 p.m. (First Fed. Tr. 108; Resp. Exh. B).'”

'° During the hearing, it came out that in a previous statement given by
Mr. Rodriguez he claimed to have left the block to go home at 10:45 p.m. (First
Fed. Tr. 88).

'’ "Resp. Exh." refers to exhibits admitted during the evidentiary
hearing held in this Court.

ue nad

LE Leesan ee

64a

There was no mention of Bernardo Rodriguez in his statement.
(First Fed. Tr. 109).

Jason Pena, who was fifteen at the time of the interview (First
Fed. Tr. 123), gave a signed statement declaring that he had arrived
at the Bohans' apartment at around 8:00 or 8:30 p.m. and stayed
until 12:30 a.m. with Angel to fix the broken bed. Mr. Cruz left
earlier, at 10:00 or 10:30 p.m., and Albert left at 11:00 or 11:20
p.m. (First Fed. Tr. 110; Resp. Exh. C). Mr. Pena did not mention
Mr. Rodriguez, Ms. Feci, or any other Bohan family members.
(First Fed. Tr. 124-25).

In his signed statement, Angel Zapata, who was fifteen at the
time, reported that he was in the Bohans' apartment from 8:30 p.m.
to approximately 12:30 a.m. with the petitioner, Roberto Cruz,
Albert, Jason, and Nicholas Bohan. (First Fed. Tr. 111-12, 126).
Roberto left at around 10:30 p.m.; Albert left at approximately
11:30 p.m.; and Jason and he left at about 12:30 a.m. (First Fed.
Tr. 112). There was no mention of Mr. Rodriguez or Ms. Feci
having been present, but Mr. Zapata did state that Mr. Bohan's
sisters were in the apartment. (First Fed. Tr. 112; Resp. Exh. D).

Officer Vasquez also interviewed Roberto Cruz, but was called
to another crime scene and was unable to have Mr. Cruz complete
or sign his statement. Nevertheless, Mr. Cruz, who was 23 years
old at the time of the interview, did tell the officer that he arrived
at the apartment at 8:00 or 8:30 p.m., and stayed there with Albert,
Jason, Angel, Nicholas, and the petitioner. (First 113-14, 128).
While there, he overheard an argument between the petitioner and
his grandmother about a broken bed. (Resp. Exh. E). He left to go

|

65a
home ground 10:30 p.m., leaving Robert and his frends. (Resp.
Exh. E).
It is unclear from the written police reports whether Officer
Vasquez or his partner ever asked the witnesses if they saw anyone

on the street after leaving the apartment. (First Fed. Tr. 120, 133).

4. Stuart Silberg

Mr. Silberg testified that Mr. Rawlins first notified him that he
would be calling alibi witnesses during a discussion off the record
that took place before the jury had been selected, approximately
seven to ten days before Mr. Rawlins attempted to call Mr.
Rodriguez as a witness. (First Fed. Tr. 40-42, 45-46). It is unclear
if Mr. Rawlins gave Mr. Silberg any of the names of these
witnesses at that time, although it is undisputed that he did not
disclose Mr. Rodriguez's name.'* After the prosecution had rested,
Mr. Rawlins informed the court he wanted to call Mr. Rodriguez as
a witness. That same day Mr. Silberg ran a rap sheet on him. (First
Fed. Tr. 45-46; Tr. 303, 305). Mr. Silberg also contacted a police
investigator for information about a relative of Mr. Rodriguez's
who was a friend of the petitioner's and who was apparently
involved in dealing drugs. (First Fed. Tr. 46). During the 24-hour
period between the time Mr. Silberg first became aware of Mr.

'S In the federal court proceeding, Mr. Silberg intimated that he was
specifically aware of Mr. Rodriguez before the jury was selected. (First Fed. Tr.
40-41, 45-46). However, the trial transcript makes clear that Mr. Silberg first
heard of Mr. Rodriguez the same day as the Dawson hearing, July 12, 1995,
seven days after the jury was selected. (Tr. 303, 355; Post-Hearing
Memorandum in Support of Answer Opposing Petition for a Writ of Habeas
Corpus ("Resp. Post-Hearing Memo."), at 8 n.8).

66a

Rodriguez and when the trial judge precluded his testimony, Mr.
Silberg never sought to interview Mr. Rodriguez. (First Fed. Tr.
50, 63-64).

5. Earl Rawlins

Mr. Rawlins testified that he never gave written alibi notice but
that he did have conversations with Mr. Silberg prior to the trial
about calling alibi witnesses. (Second Fed. Tr. 3-4).'? He claimed
his failure to give notice was not motivated by any desire to gain
tactical advantage, but rather because he had forgotten about the
alibi witnesses until he reviewed his file immediately before the
trial. (Second Fed. Tr. 4, 11). When asked why he did not give
notice as soon as he realized he had a statement from Mr.
Rodriguez giving the petitioner an alibi, Mr. Rawlins responded,
"At that point, I just told Mr. Silberg, I recall, I have this person
here, and then that's it. I don't recall what I -- no, I'm not sure what
I did or not, to tell you the truth.” (Second Fed. Tr. 4).

Cn cross-examination Mr. Silberg tried to elicit testimony
about defense counsel's possible motivation for failing to provide
notice and suggested that Mr. Rawlins did not give notice because
of his experience with Carmen Rodriguez who had changed her
testimony after speaking to the prosecution. When Mr. Silberg
tried to present this theory of Mr. Rawlins’ failure to provide
notice, the following exchange occurred:

' “Second Fed. Tr.” refers to the transcript from the hearing held
before this Court on October 1, 2001.

MR. SILBERG:

MR. RAWLINS:

MR. SILBERG:

MR. RAWLINS:

67a

So would it be fair to say as a result of
you giving us a witness [Carmen
Rodriguez] whom you thought might
convince us to dismiss the case that that
didn't happen?

The case was not dismissed, that's
correct.

Now, when you became aware of
Bernardo Rodriguez, were you_a little
wary about letting us have information
about him, because you were afraid that
that wouldn't work out well if we had an
opportunity to speak to Mr. Rodriguez?

No, it's the contrary. As I reviewed ihe
letter -- I would be more than happy to
give you that letter so you could check it
out, yes.

(Second Fed. Tr. 7). Mr. Rawlins denied that he disbelieved Mr.
Rodnguez's account of the events. (Second Fed. Tr. 9). He
maintained he did not attempt to call the other alibi witnesses --
Jason, Albert, and Angel -- because he thought they were in jail at
the time. (Second Fed. Tr. 2”

© This is confirmed in part by the state trial transcript, which indicates
that Jason and Angel were incarcerated at the time of the trial. (Tr. 260-61, 275-

76).

68a

Mr. Rawlins also acknowledged that his failure to give alibi

notice was a mistake:

MR. SILBERG:

MR. RAWLINS:

MR. SILBERG:

~ MR. RAWLINS:

MR. SILBERG:

MR. RAWLINS:

(Second Fed. Tr. 10).

Did you go back and tell [Mr. Bohan]
that -- if you'll pardon my language, that
you fucked up with the alibi in the case?
Do you remember telling him that?

Using the word fucked up, I don't know.
I would certainly mention the fact that
that would be an appealable issue, yeah,
and I spoke to him about it, oh, yeah.

That you might have mentioned to him,
in discussing what the next steps would
be, that in filing an appeal that would be
an issue.

Yeah.
But you don't have a direct recollection
of telling him that you made a mistake in

handling [the] alibi.

I don't recall telling him, but it certainly
was a mistake.

Finally, when questioned about whether he had asked the
petitioner to sit at the counsel table during the interview with

Carmen Rodriguez, he answered that he had no recollection.
(Second Fed. Tr. 4-5).

Discussion

A. Insufficient Evidence

Mr. Bohan claims there is insufficient evidence of his guilt. He
maintains that the testimony of the alleged eyewitnesses was
internally contradictory and was belied by other prosecution
witnesses. This argument is without merit.

There is a "very heavy burden placed upon a defendant
challenging the sufficiency of the evidence underlying his
conviction.” Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995)
(internal quotations and citation omitted). To succeed the petitioner
must demonstrate that "no rational trier of fact could have found
proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443
U.S. 307, 324, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); see also
Quartararo v. Hansilmaier, 186 F.3d 91, 97 (2d Cir. 1999), cert.
denied, 528 U.S. 1170, 145 L. Ed. 2d 1100, 120 S. Ct. 1196
(2000); Knapp, 46 F.3d at 178.

In this case, two eyewitnesses, Michael Jenkins and Jamal
Williams, testified that it was the petitioner who shot Mr. Alvarez.
Any inconsistent or contradictory testimony by these witnesses

: *! Because the claims unrelated to the preclusion of the alibi witness

fail under de novo review, ~it is unnecessary to discuss whether the Anti-
Terrorism and Effective Death Penalty Act's more deferential standard applies to
them. See 28 U.S.C. § 2254(d)(1).

70a =

does not render their identification of Mr. Bohan incredible,
because the evidence must be construed in the light most favorable
to the prosecution and this Court must defer to the jury's resolution
of any conflicts in the testimony and its assessment of witness
credibility. See Jackson, 443 U.S. at 319. =

With regard to the defense witnesses, a rational juror could
have discounted Carmen Rodriguez's testimony that Mr. Bohan
was not the assailant because she changed her account of the
events. twice. One of the alibi witnesses, Mr. Cruz, last saw the
petitioner before the crime occurred and could not vouch for his
whereabouts at the time of the shooting, while the other witness,
Ms. Feci, provided several time-frames for the critical events, at
least one of which did not provide an alibi for the petitioner.
Finally, three prosecution witnesses testified that the petitioner had
met with the victim, and one of them, Mr. Williams, stated that the
petitioner had threatened Mr. Alvarez, providing a motive for the
killing. Based on all of this evidence, and in particular the
eyewitness identifications of the petitioner, a rational juror could
have found him guilty beyond a reasonable doubt.

B. Right to be Present During All Material Stages of Trial

The petitioner argues that his absence from the room at Rikers
Island while Carmen Rodriguez was interviewed by the judge and
counsel violated his right to be present during all material stages of
the trial. Although his attorney stated on the record that the
petitioner had waived his right to be present, Mr. Bohan denies that
counsel spoke to him about this issue. The respondent counters that
this claim is not exhausted and should be dismissed or, in the

T7la

alternative, that it fails on the merits. Although this claim is
exhausted, it is meritless.

1. Exhaustion

iw

Pursuant to 28 U.S.C. § 2254(b)(1)(A), a petitioner must
exhaust all state remedies to the highest state court. See also
Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991); Daye v.
Attorney General of the State of New York, 696 F.2d 186, 190-91
& n.3 (2d Cir. 1982). To achieve exhaustion, the petitioner must
inform the state court of both the legal and factual bases of the
claim before proceeding in federal court. See Daye, 696 F.2d at
191; see also Strogov v. Attorney General of the State of New
York, 191 F.3d 188, 191 (2d Cir. 1999), cert. denied, 530 U.S.
1264, 147 L. Ed. 2d 987, 120 S. Ct. 2723 (2000).

Although the petitioner raised this claim on appeal, the
respondent maintains that it is not exhausted because the Appellate
Division found the claim "unreviewable" due to the petitioner's
failure to provide a "sufficient record to establish that the special
seating arrangements deprived him of the right to be present."
Bohan, 257 A.D.2d at 443, 684 N.Y.S.2d at 515. While the
Appellate Division may have wished for more details about where
the parties sat during the examination of Ms. Rodriguez, the
petitioner did raise both the legal and factual bases of his claim in
state court: he alleged that he sat in a different room from Ms.
Rodriguez during the examination thus denying him his right to be
present in violation of the Sixth Amendment. Although the exact
seating arrangements and the configuration of the rooms are
unknown, it is clear from the state record that Mr. Bohan could
both hear and see the examination of Ms. Rodriguez and that she

72a

-

could see him,”? facts sufficient for the state court to have made a
decision on the merits of the claim. Therefore, the petitioner
exhausted his state court remedies.

Furthermore, the Appellate Division did reach the merits in an
alternative holding, stating that "in any event, the existing record
establishes that defendant waived his right to be situated in closer
proximity to the witness and counsel." Id. at 443-44, 684 N.Y.S.2d
at 515. However, the petitioner did not argue in state court that
defense counsel failed to obtain his consent to waive his presence
at the proceeding, nor did Mr. Bohan present any evidence to this
effect to the Appellate Division. Nevertheless, as discussed below,
the waiver issue is not dispositive of this claim; therefore, it is of
no matter that the factual predicate for the waiver issue was not
exhausted in state court.

2. Merits

The petitioner's Sixth Amendment claim raises four issues:
whether Mr. Bohan's right to be present was violated when Ms.
Rodriguez was examined in a separate room; whether Mr. Bohan
validly waived his right to be present; whether harmless error
analysis applies to the claim; and, if so, whether the error was
indeed harmless. Because harmless error analysis does apply and

2 The state transcript reflects that the judge and counsel were in the
interview room with Ms. Rodriguez, while the video technician, stenographer,
and the defendant were in a separate room. (Tr. 217-19, Cond. Ex. Tr. 4). This
indicates that the petitioner could both see and hear the examination of Ms.
Rodriguez. The prosecutor also had to remind Ms. Rodriguez to look at him
rather than at the petitioner, again confirming that the parties in the two rooms
could see each other. (Tr. 327, 329).

73a

the error was harmless, it is unnecessary to rule on the first two
issues. See Yarborough v. Keane, 101 F.3d 894, 896 (2d Cir.
1996).

Violations of the right to be present during all material stages
of the trial may be subject to harmless error analysis. United States
v. Feliciano, 223 F.3d 102, 111-12 (2d Cir. 2000), cert. denied, 532
U.S. 943, 149 L. Ed. 2d 348, 121 S. Ct. 1406 (2001); Yarborough,
101 F.3d at 896; United States v. Vilella, 49 F. Supp. 2d 232, 238
(S.D.N.Y. 1999); see also Rushen v. Spain, 464 U.S. 114, 119 n.2,
78 L. Ed: 2d 267, 104 S. Ct. 453 (1983) ("Violations of the right to
be present during all critical stages of the proceedings [are, in most
cases] subject to harmless error analysis."). However, if the
violation "so fundamentally undermine[s] the fairness or the
validity of the trial," it is properly characterized as a "structural"
error and is subject to automatic reversal. Yarborough, 101 F.3d at
897; see also Arizona v. Fulminante, 499 U.S. 279, 307-10, 113 L.
Ed. 2d 302, 111 S. Ct. 1246 (1991). "To determine whether an
error is properly categorized as structural, we must look not only at
the right violated, but also at the particular nature, context, and
significance of the violation." Yarborough, 101 F.3d at 897.

Mr. Bohan's absence from the examination room during the
questioning of Ms. Rodriguez certainly did not undermine the
fairness or the validity of the trial. He was able to see and hear the
entire interrogation of Carmen Rodriguez, and his attorney was
present in the examination room. There is no indication in the
record that the petitioner was impeded from consulting with
counsel either before or after the examination. Accordingly, his
exclusion from the examination room, assumi

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0824%3A2. Public record. Not legal advice.