Appendix — Kelly v. Noble

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UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2000

(Argued: September 25, 2000 Decided: April 05, 2001 )

Docket No. 00-2154

CASIM NOBLE,

Petitioner-Appellee,

V.

WALTER R. KELLY, Superintendent,

Respondent-Appellant.

Before: CARDAMONE, JACOBS, and SACK, Circuit Judges.

Appeal from the judgment of the United States District Court

for the Southern District of New York (Sand, J.) granting a

petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. At petitioner's criminal trial for attempted murder and

related offenses in the Supreme Court of the State of New

York, Sullivan County, the court precluded alibi testimony

because defense counsel failed to comply with a state procedural

rule mandating advance notice of intent to call such witnesses.

The district court held that the exclusion violated the petitioner's

constitutional right to present witnesses in his own defense and

violated his right to effective counsel. We affirm. Judge Jacobs

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dissents in a separate opinion.

PHILIP L. WEINSTEIN, The Legal Aid Society, Federal

Defender Division, Appeals Bureau, New York, NY, for

Petitioner-Appellee.

BONNIE M. MITZNER, Assistant District Attorney, Sullivan

County, NY (Stephen F. Lungen, District Attorney, and Karen

Mannino, Assistant District Attorney, on the brief), for

Respondent-Appellant.

Per Curiam:

Casim Noble's petition for a writ of habeas corpus challenges his

conviction for attempted murder and related offenses on the

ground that his Sixth Amendment Compulsory Process rights

were violated when the state trial court ruled that alibi testimony

would be excluded because defense counsel failed to comply

with a state procedural rule requiring advance notice of intent to

call alibi witnesses. Alternatively, Noble argues that his counsel's

non-compliance rendered his counsel's services constitutionally

ineffective. The United States District Court for the Southern

District of New York (Sand, J.) granted Noble's petition for a

writ of habeas corpus and directed the Respondent either to

release Noble or to retry him. See Noble v. Kelly, 89 F. Supp.

2d 443, 464 (S.D.N.Y. 2000).

We affirm the judgment of the district court.

BACKGROUND

Familiarity with the facts of the case and the details of Noble's

state criminal trial as set forth in Noble, 89 F. Supp.2d at

445-50, is assumed. Noble was convicted in the Supreme Court

of the State of New York, Sullivan County, for attempted

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murder and various related offenses. Noble's petition for habeas

relief challenges the exclusion of testimony that Noble was

inside a bar at the time the victim was shot in a car outside.

New York Criminal Procedure Law treats an alibi witness as a

special type. Section 250.20 provides that the government may

serve upon the defense, up to twenty days after arraignment, a

demand that the defense identify any witness who intends to

testify that “at the time of the commission of the crime charged

[the defendant] was at some place or places other than the scene

of the crime." N.Y. Crim. Proc. L. § 250.20. The defense has

eight days to respond, is under a continuing duty to respond as

circumstances and intentions change throughout the trial

process, and risks the sanction of exclusion for failure to

comply: “If at the trial the defendant calls such an alibi witness

without having served the demanded notice . . . the court may

exclude any testimony of such witness relating to the alibi

defense." Jd The court retains discretion to accept the

testimony, but if it does, it must grant the government time to

prepare a rebuttal. See N.Y. Crim. Proc. L. § 250.20 ("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."). The prosecution

appropriately served an alibi witness request upon Noble's

counsel, to which counsel responded that no alibi witnesses

were anticipated. At trial and in the habeas proceedings, the

prosecution and Noble have disputed whether Steven Yamagata

should have been identified as an alibi witness in response to the

prosecution's § 250.20 demand. According to the prosecution's

evidence at trial, the victim was sitting in a car parked outside

the "Around the Corner Bar," and was shot at close range by

one of three assailants. The victim and other witnesses identified

Noble as the gunman. Following the testimony of the first

defense witness, a colloquy ensued in which the prosecution

challenged counsel's intention to call Yamagata as a witness, and

the court asked what Yamagata would say. Noble's counsel

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responded that Yamagata "was inside the bar when he heard the

shots, and he was playing pool or some other game in there, and

Casim [Noble] was playing [a] video game, and they both exited

the bar together." The trial judge asked defense counsel to

explain why Yamagata was not an alibi witness whose testimony

should have been noticed in advance pursuant to_§ 250.20.

Defense counsel responded that Yamagata was not an alibi

witness because the scene of the crime specified in the

indictment was the vicinity of the Around the Comer Bar, and

that Yamagata's testimony--that Noble was in the bar--would

place him at the scene rather than furnish the alibi that he was

elsewhere. After taking the matter under advisement, the court

adopted the competing view that, in light of the prosecution's

pre-trial discovery responses, the scene of the crime for the

purpose of alibi analysis, was "in front of the [Around the

Corner B]ar." As a sanction for defense counsel's failure to give

notice under § 250.20, the court excluded Yamagata's

testimony. The jury convicted Noble of attempted murder in the

second degree, two counts of criminal use of a firearm in the

first degree, and criminal possession of a weapon in the second

degree. He was sentenced chiefly to two terms of 12'% to 25

years of imprisonment and one term of 72 to 15 years of

imprisonment, all to run concurrently. On Noble's appeal, the

Appellate Division of the New York Supreme Court did not

decide whether the preclusion of the alibi testimony was

constitutional error, because it held that even if it were, any

error introduced thereby was harmless. See People v. Noble,

209 A.D.2d 735, 736, 618 N.Y.S.2d 123, 124 (3d Dep't 1994).

The court rejected Noble's claim that his counsel was ineffective

on the ground that Noble only alleged a "simple disagreement

with trial strategies and tactics," and was therefore not sufficient

to overturn the convictions. Jd. Noble's application for leave to

appeal to the New York Court of Appeals was summarily

denied. See People v. Noble, 84 N.Y.2d 1036, 647 N.E.2d 464,

623 N.Y.S.2d 192 (1995). Noble petitioned for a writ of habeas

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corpus in 1997. The district court granted the writ on the

ground that the trial court's preclusion of Yamagata's testimony

violated Noble's compulsory process rights under the Sixth

Amendment. See Noble, 89 F. Supp. 2d at 454-61.

Alternatively, the court held that defense counsel's failure to

follow the procedures for calling an alibi witness amounted to

constitutionally ineffective counsel. See id. at 461-63. We

affirm on the first ground and therefore do not reach the second.

DISCUSSION

I. Timeliness

Title I of the Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), Pub. L. No. 104-132, § 101, 110 Stat. 1214,

1217 (codified at 28 U.S.C. § 2244), imposes a time limit for

filing habeas petitions. See 28 U.S.C. § 2244(d)(1). AEDPA

was enacted on April 24, 1996; prisoners whose convictions

became final before that date had one year--until April 24,

1997--to file. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.

1998). Noble's conviction became final January 30, 1995, when

leave to appeal to the New York Court of Appeals was denied.

The district court received his petition on July 22, 1997, after

the deadline; but Noble contends that before the time expired he

had placed the petition in the hands of the prison authorities for

mailing. The Supreme Court held in Houston v. Lack, 487 U.S.

266 (1988), that a prisoner appearing pro se satisfies the time

limit for filing a notice of appeal if he delivers the notice to

prison officials within the time specified. This "prison mailbox"

tule is justified by the litigant's dependence on the prison mail

system and lack of counsel to assure timely filing with the court.

See id. at 270-71, 274.

As the district court correctly concluded, this rationale aprlies

with equal force to Noble's circumstances. See Noble, 89 F.

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Supp. 2d at 450-53. Noble's petition for a writ of habeas corpus

was made from jail without the benefit of counsel. As the district

court noted, the prison mailbox rule has been extended to a -

variety of circumstances, including administrative filings, see

Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (per

curiam), service of discovery responses, see Faile v. Upjohn

Co., 988 F.2d 985, 988 (9th Cir. 1993), motions for

reconsideration under Fed. R. Civ. P. 59, see Smith v. Evans,

853 F.2d 155, 161 (3d Cir. 1988), and motions for a new trial

under Fed. R. Crm. P. 33, see Marinez v. United States, No. 89

Cr. 701, 1996 WL 51201, at *2 (S.D.N.Y. Feb. 8, 1996). A

number of other circuits have extended the rule to pro se

petitions for habeas relief. See Miles v. Prunty, 187 F.3d 1104,

1106-07 & n.2 (9th Cir. 1999); Nichols v. Bowersox, 172 F.3d

1068, 1077 (8th Cir. 1999) (en banc); Jones v. Bertrand, 171

F.3d 499, 502 (7th Cir. 1999); Hoggro v. Boone, 150 F.3d

1223, 1226 n.3 (10th Cir. 1998); Spotville v. Cain, 149 F.3d

374, 378 (Sth Cir. 1998); Burns v. Morton, 134 F.3d 109, 113

(3d Cir. 1998); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997) (per

curiam). Moreover, this Court has observed that "[w]hen a

prisoner is proceeding pro se . . . federal courts generally

consider his or her petition for habeas corpus to have been filed

as of the date it was given to prison officials for forwarding to

the court clerk." Adeline v. Stinson, 206 F.3d 249, 251 n.1 (2d

Cir. 2000) (per curiam); cf Nelson v. Walker, 121 F.3d 828,

832 n.2 (2d Cir. 1997) (holding that the date of delivery to

prison Officials is the relevant date for purposes of determining

whether a notice of appeal was filed before the enactment of

AEDPA).

We conclude that the district court properly extended the prison

mailbox rule to petitions for writs of habeas corpus.

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II. Preclusion

A. Standard of Review

Under AEDPA, the federal courts lack power to grant a writ

under 28 U.S.C. § 2254 unless the state court ruling on the

federal constitutional issue is either “contrary to. . . clearly

established Federal law" or "involved an unreasonable

application of . . . clearly established Federal law." See id §

2254(d)(1); see also Williams v. Taylor, 529 U.S. 362, °412

(2000). We recently held, however, that AEDPA deference is

compelled only when the claim has been "adjudicated on the

merits" in the state court, and further held that if a state court

decides a case without citing to federal law, the "pre-AEDPA

standard of review" applies. See Washington v. Schriver, 240

F.3d 101, 107-10 (2d Cir. 2001). It is not essential to determine

whether AEDPA applies here, as our conclusion is the same

under either standard of review.’

As for the district court's decision, we review a decision to grant

habeas relief de novo. See Smalls v. Batista, 191 F.3d 272, 277

(2d Cir. 1999).

B. Constitutionality

Weassume, as did the district court, that Yamagata's anticipated

testimony qualifies as alibi testimony under § 250.20. The state

court ruling on that score is an interpretation of state law that

we will not review. See Estelle v. McGuire, 502 U.S. 62, 67-68

' The district court's decision, which predates both Williams and

Washington, applies the "contrary to" portion of § 2254, holding that

the state trial court's failure to inquire into whether defense counsel's

behavior was willful amounted to the application of the "wrong

standard." Noble, 89 F. Supp. 2d at 461.

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(1991) ("[I]t is not the province of a federal habeas court to

reexamine state-court determinations on state-law questions.");

Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("Because federal

habeas corpus relief does not lie for errors of state law... .

federal habeas review . . . is limited, at most, to determining

whether the state court's finding was so arbitrary or capricious

as to constitute an independent due process or Eighth

Amendment violation."). The state court's determination that

Yamagata was an alibi witness was not arbitrary or capricious.

In any case, neither party has challenged this finding on appeal.

The district court held that it was constitutional error to exclude

Yamagata's testimony absent a finding that defense counsel's

non-compliance with § 250.20 was willful. We agree.”

The Sixth Amendment's Compulsory Process Clause, applicable

to state criminal proceedings through the Due Process Clause of

the Fourteenth Amendment, see Washington v. Texas, 388 U.S.

14, 17-19 (1967), provides that "the accused shall enjoy the

right. . . to have compulsory process for obtaining witnesses in

his favor... ." U.S. Const. amend. VI. In Zaylor v. Illinois, 484

U.S. 400 (1988), the Supreme Court upheld an order excluding

the testimony of a defense witness as a sanction for counsel's (i)

"If permitted, Yamagata would have testified that Noble was inside

the bar, playing a video game when the shooting occurred. Nothing in

the record indicates that Noble could have committed the attempted

murder under these circumstances: the witnesses testified that Noble

shot the victim from close range, standing just outside the victim's car.

This testimony arguably places Yamagata within the definition of an

alibi witness. See Black's Law Dictionary 72 (7th ed. 1999) (defining

"alibi" as "[a] defense based on the physical impossibility of a

defendant's guilt by placing the defendant in a location other than the

scene of the crime at the relevant time.").

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noncompliance with a discovery rule that required notice of

intention to call the witness, and (ii) misleading the court

concerning his knowledge of the witness's whereabouts.

Although confirming that "[flew rights are more fundamental

than that of an accused to present witnesses in his own defense,"

id. at 408, the Court ruled that courts must balance that right

against the State's interest in an orderly trial: “[T]he trial process

would be a shambles if either party had an absolute right to

control the time and content of his witnesses’ testimony," id. at

411. "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." Jd. at 412 n.17 (quoting

Williams v. Florida, 399 U.S. 78, 81 (1970)) (internal quotation

marks omitted).

The Court declined to issue comprehensive guidelines for this

balancing process, but stated that a trial court should consider

"the fundamental character of the defendant's right to offer the

testimony of witnesses in his favor," "[t]he integrity of the

adversary process," “the interest in the fair and efficient

administration of justice," and "the potential prejudice to the

truth-determining function of the trial process." Jd. at 414-15.

The Court then held: A trial judge may certainly insist on an

explanation for a party's failure to comply with a request to

identify his or her witnesses in advance of trial. If that

explanation reveals that the omission was willful and motivated

by a desire to obtain a tactical advantage that would minimize

the effectiveness of cross-examination and the ability to adduce

rebuttal evidence, it would be entirely consistent with the

purposes of the Compulsory Process Clause simply to exclude

the witness’ testimony. Jd. at 415 (emphasis added). The Court

concluded that the conduct of Taylor's counsel amounted to

"willful misconduct" for which exclusion is appropriate,

"[r]egardless of whether prejudice to the prosecution could have

been avoided." Jd. at 417. .

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In a pre-Zaylor case, this Court ruled that alibi testimony is so

critical that it cannot be excluded notwithstanding procedural

defaults, even where, as here, counsel "offered the court no

reasonable explanation" for non-compliance. scalera v.

Coombe, 826 F.2d 185, 188 (2d Cir. 1987). Only a

"demonstration of substantial prejudice to the prosecution's

case" was deemed sufficient to warrant exclusion of alibi

testimony. /d. at 194.

The Supreme Court vacated this Court's Escalera decision and

remanded for reconsideration in keeping with Zaylor. See

Coombe v. Escalera, 484 U.S. 1054 (1988). This Court, in turn,

remanded the matter 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 ofa good

excuse [wa]s 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 curiam) (quoting Escalera v. Coombe, 652 F. Supp. 1316,

1324 (E.D.N.Y. 1987)) (citations omitted).

We agree with the district court 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 Yamagata's testimony. See

Noble, 89 F. Supp. 2d at 457 (discussing the prosecution's

familiarity with the locale of the alibi and its ability to obtain

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impeachment evidence against Yamagata).> The state trial court,

however, made no finding of willfulness.

After hearing argument, the trial court tuled: This Court will

preclude [Yamagata from] giving testimony with respect to the

alibi. The record indicates that no notice was served by the

defense that they intended to produce an alibi witness. The first

that the People were advised of their intention to call this

witness was after the close of the People's case yesterday. The

record further indicates . . . that the scene of this crime was in

front of the Around the Corner Bar. This being the case, the

testimony of this witness that the defendant was inside the bar

at the time of the shooting is clearly [alibi testimony]. The Court

is not satisfied that there is an acceptable reason for not making

this application sooner.

We agree with the district court that this ruling does not Satisfy

the constitutional standard.

C. Remedy

Having concluded that the constitutional standard was not

Satisfied, the district court conducted its own review of the state

* We therefore need not decide whether, and to what extent, a

finding of willfulness is required in every case. See United States v.

Portela, 167 F.3d 687, 705 & n.16 (1st Cir.), cert. denied sub nom.

Villaman-Rodriguez v. United States, 528 US. 917 (1999). 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.

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trial record and granted the writ on the basis of its conclusion

that the defense attorney's failure to provide a timely notice of

alibi was not in fact willful. See Noble, 89 F.Supp. 2d at 457.

The state argues for the first time on appeal, however, that, if

nothing else, the district court should be required to hold an

evidentiary hearing to expand the record and consider additional

evidence on the question of willfulness. We think that the

particular circumstances of this case justify the grant of the wnt

without such a hearing. The district court's finding that the

defense attorney's failure to provide a notice of alibi was a result

of "his misinterpretation of the governing discovery rules" and

cannot "be attributed to a strategic choice," Noble, 89 F. Supp.

2d. at 463, has strong support in the record of the proceedings

in the state trial court. First, the colloquy between the trial court

and the defense attorney indicates that the attorney thought that

Yamagata was not an alibi witness because the indictment

identified the scene of the crime as in the "vicinity" of the

Around the Corner Bar, which the attorney thought included the

area inside the bar. That colloquy also revealed that the attorney

thought that the bar's close proximity to the shooting meant that

the Yamagata's testimony was not an alibi. If the failure of the

lawyer to respond to the alibi witness request was thus simply

a mistake, it was of course not willful.

Second, the trial court itself said nothing to suggest that it

thought the attorney had acted willfully or in bad faith. The

court simply found no "acceptable" reason for the attorney's

failure to provide a notice of alibi. See Escalera, 852 F.2d at 48

("The absence ofa good excuse is not necessarily commensurate

with 'willful' conduct.").

Third, contrary to the state's repeated assertions, see Appellant's |

Br. at 18, 22, 27, 33, 34, 35, Yamagata was not a surprise |

witness; he was on the defense's pre-trial witness list and his |

name was mentioned in court in that connection three times.

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This is strong evidence against a finding that the non-compliance

was willful.

Finally, the state's proffer of what it would prove on remand has

little bearing on the issue of willfulness. Although we remanded

in Escalera for an evidentiary hearing on willfulness, we did so

because we concluded that the record did not "permit[] us to

apply the standards enunciated in Taylor." 852 F.2d at 48. In

this case, however, "in light of the record . . . which includes an

explanation by counsel negating the possibility that [his]

Omission was a strategic choice," we conclude that "[nJo...

remand is required." Brown v. United States, 167 F.3d 109, 110

(2d Cir. 1999).

We also note that the remand in Escalera was particularly

appropriate because the district court's decision in that case

preceded the Supreme Court's decision in Taylor and was

therefore ambiguous on the question of willfulness. See

Escalera, 852 F.2d at 48. In this case, by contrast, Judge Sand

was fully aware that his task was to determine whether defense

counsel acted willfully, and his findings on that score are clear.

See Noble, 89 F. Supp. 2d at 457, 462-63. His decision not to

hold an evidentiary hearing, when the state not only failed to

request such a hearing but opposed the petitioner's attempt to

expand the record, was justified by the record and did not

constitute an abuse of discretion. See Nieblas v. Smith, 204 F.3d

29, 32 (2d Cir. 1999) (a district court has "broad" discretion

whether "to hear additional evidence on behalf of the state")

(citing cases).

We therefore conclude that a remand is unnecessary.‘

* Because we conclude that the state trial court committed

constitutional error in excluding Yamagata's testimony, we decline to

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D. Harmless Error

The Appellate Division concluded that any error introduced by

counsel's failure to properly call Yamagata was harmless in light

of the otherwise significant evidence against Noble. The district

court disagreed, holding that "[W]e are persuaded, after a

thorough examination of the record in this case, that the

exclusion of Yamagata's testimony did have a substantial and

injurious effect in determining the jury's verdict." Noble, 89 F.

Supp. 2d at 458. Our own review of the record supports the

district court's conclusion, for substantially the same reasons

that the district court has articulated. °

address the petitioner's alternative claim that he _ received

constitutionally ineffective assistance of counsel.

> We note that the pre-AEDPA standard of review discussed in

part II.A above does not apply to our harmlessness determination

because harmlessness was “adjudicated on the merits" by the

Appellate Division. It is well-settled that on direct review, a state

appellate court may find a constitutional error harmless only if it is

harmless beyond a reasonable doubt. See Chapman v. California, 386

U.S. 18, 24 (1967). Prior to the passage of AEDPA, federal habeas

courts reviewing state harmlessness determinations employed a

standard less demanding than Chapman, asking whether an error “had

substantial and injurious effect or influence in determining the jury's

verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting

Kotteakos v. United States, 328 U.S. 750, 776 (1946)). After

AEDPA, the question arises whether a federal habeas court should

continue to apply Brecht or determine instead whether the state court's

decision was "contrary to, or involved an unreasonable application of"

Chapman. 28 U.S.C. § 2254(d)(1); see, e.g., Maurino v. Johnson,

210 F.3d 638, 645 (6th Cir.), cert. denied, 121 S.Ct. 427 (2000)

(adhering to Brecht); Hale v. Gibson, 227 F.3d 1298, 1325 (10th Cir.

2000) (same); Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir. 2000)

(expressing skepticism about the vitality of Brecht, but declining to

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CONCLUSION

For the foregoing reasons, we affirm the judgment of the district

court. The mandate shall issue forthwith.

JACOBS, Circuit Judge, dissenting:

As to all but one point, I concur in the majority opinion. Thus I

agree that Noble's habeas petition was timely (Part I), that it is

not necessary to determine whether AEDPA applies (Part II.A),

that, under Zaylor v. Illinois, 484 U.S. 400 (1988), the state

court erred in failing to determine whether defense counsel's

non-compliance with § 250.20 was willful (Part II.B), and that

this failure was not harmless (Part II.D).

I respectfully dissent from Part ILC ("Remedy") only. Rather

than affirm the grant of the writ, I would remand to the district

court for a hearing to determine whether defense counsel's

conduct was willful, because if it was, the exclusion of the

testimony was not constitutional error. The majority opinion

sees "strong support in the record" for ascribing counsel's

non-compliance with § 250.20 to "his misinterpretation of the

governing discovery rules," and further posits that "the state's

proffer of what it would prove on remand has little bearing on

the issue of willfulness." Maj. Op. at [16, 17].

decide the issue); Anderson v. Cowan, 227 F.3d 893, 898 n.3 (7th Cir.

2000) (noting the issue but declining to decide it). The Appellate

Division in this case failed to apply Chapman, holding that the error

was harmless "in view of the overwhelming evidence of guilt." Noble,

209 A.D.2d at 735-36, 618 N.Y.S.2d at 124. Because we conclude

that the error was not harmless under both possible standards of

review, we decline to express a view as to which standard should

apply.

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I read the record differently. Noble's counsel was an experienced

criminal defense lawyer and can be presumed to understand who

is an alibi witness. At the same time, counsel had good reason

to believe that Yamagata's testimony was of a kind that would

be effective only if the government was surprised and lacked an

opportunity to prepare for it.

And Noble's counsel had the means to engineer this surprise:

Noble's counsel was also counsel to Yamagata, and Yamagata

and Noble were friends from prison days. One could find that

counsel withheld Yamagata's name until such time as Yamagata

could no longer be interviewed by the government (as

Yamagata's lawyer, Noble's counsel could see to that), or fully

investigated. In any case, I think that the circumstances are

sufficiently ambiguous to justify fact-finding. See Escalera v.

Coombe, 852 F.2d 45, 48-49 (2d Cir. 1988) (remanding habeas

petition involving exclusion of alibi witness testimony, holding

that “in the absence of other error requiring state court

proceedings, it [is] appropriate for the district court to hold its

own evidentiary hearing."). Cf Taylor v. Illinois, 484 U.S.400,

412 n.17 (1988) (noting "the ease with which an alibi can be

fabricated" (quoting Williams v. Florida, 399 U.S. 78, 81

(1970))).

Before a new trial is mandated, we should assure that there has

in fact been constitutional error. A remand for fact-finding may

avoid unnecessary involvement of the federal judiciary in state

criminal proceedings.

17a

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

CASIM NOBLE,

Petitioner,

- against -

WALTER R. KELLY,

Superintendent, Respondent.

97 Civ. 6907 (LBS)

February 28, 2000, Decided

February 28, 2000, Filed

| COUNSEL: For Casim Noble, Petitioner: PHILLIP L.

WEINSTEIN, THE LEGAL AID SOCIETY, FEDERAL

DEFENDER DIVISION, APPEALS BUREAU, New York,

N.Y.

| For Walter R. Kelly, Respondent: BONNIE M. MITZNER,

| STEPHEN F. LUNGEN, DISTRICT ATTORNEY,

SULLIVAN COUNTY, Monticello, NY.

HON. LEONARD B. SAND, U.S.D_J.

Casim Noble, a prisoner in state custody, petitions this Court

for a writ of habeas corpus. After a thorough examination of the

record, we conclude that the Petitioner's conviction was

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obtained in violation of his rights to present witnesses in his

defense and to the effective assistance of counsel, both of which

are guaranteed by the Sixth Amendment. The petition is,

therefore, granted.

BACKGROUND

On October 26, 1989, at about 8:00 p.m., Dwight Usher, then

17 years old, was shot four times. Although the shooting was

not fatal, the victim suffered severe injuries to his chest, groin,

thigh, and elbow. After several operations and a week in the

hospital, Usher recovered, though two bullets remain lodged in

his body.

The shooting occurred outside a bar, called the Around the

Corner Bar, in Kiamesha, New York. The Sullivan County

Sheriff's Department conducted an investigation, and on January

24, 1990, a Grand Jury in that county returned a five-count

indictment charging three individuals with various crimes in

connection with the shooting. (See Indictment 38/90.) Those

three individuals were the Petitioner, Derrick Pittman, and

Rufus Middleton. (Jd) Each defendant was charged with

attempted murder, first degree assault, and criminal use (two

counts) and possession of a firearm. (/d.)

A jury trial commenced in New York State Supreme Court in

Sullivan County (Kane, J.) on March 14, 1991. The trial

centered around the conflicting testimony of four individuals

who claimed to have been eyewitnesses to the shooting." Two

' The only physical evidence was presented by Detective

Anthony Suarez of the Sullivan County Sheriff's office, who testified

that he, along with his partner, Lieutenant Whalen, "recovered four

spent cartridges” of 380 caliber from the scene. (See Trial Transcript

("Tr.") at 423.) No gun was ever found. (See id. at 493.) The

19a

of those witnesses -- Troy Leibert and the victim, Dwight Usher

-- testified for the prosecution. The other two witnesses --

Melvin Walker and Raphalena Andrews -- testified for the

Petitioner.” Because of its centrality to our resolution of this

petition, we summarize the eyewitness testimony in some detail.

A. The Eyewitness Testimony

1. Leibert

The first eyewitness to testify was Troy Leibert. Leibert testified

that throughout the summer of 1989, he and his cousin, Terence

Duncan, had been making regular trips to the Sullivan County

area from their homes in New York City. (See id. at 115.)

Although Leibert denied any use of illegal drugs or involvement

in drug trafficking, during cross-examination defense counsel

elicited that he had once been convicted for possession of drug

paraphernalia. (See id. at 186-87.) Leibert testified that on

October 26, 1989, he traveled to Sullivan County by bus with

detective also recovered the victim's coat, which had a bullet hole in

it and was covered with blood. (See id. at 433-35.)

* Because counsel for defendants Pittman and Middleton

opposed the calling of both Walker and Andrews, those witnesses

technically did not testify for those two defendants. (See id. at 586.)

In fact, Pittman and Middleton argued that permitting Noble to call

those witnesses, over their objection, required a severance. (See id. at

563-573, 586). The trial court denied that application (see id. at $73),

and the Appellate Division affirmed, see People v. Middleton, 192

A.D.2d 740, 741, 596 N.Y.S.2d 177, 178 (NY. App. Div., 3d Dept.

1993).

20a

Melvin Walker and with Walker's girlfriend, Raphalena

Andrews. (See id. at 117-18.) Leibert was scheduled to appear

in court that day in Sullivan County in connection with a

trespassing charge. (See id) When his court appearance was

completed, Leibert, along with Walker and Andrews, took a

taxicab to the Around the Corner Bar to meet up with Duncan,

who they believed was inside. (See id. at 120.)

Leibert testified that upon their arrival at the bar, while standing

about 30 to 35 feet away (see id. at 133), he saw Duncan's car

parked outside and noticed that Dwight Usher was seated in the

front passenger seat (see id. at 123-24).

Leibert then saw "three guys come down" a nearby hill and

approach the car. (/d. at 124-26.) One of them (later identified

as Pittman (see id. at 135))* knocked on the window, prompting

Usher to roll it down. (See id. at 126.) Words were exchanged

and Usher eventually got out of the car. (See id. at 127.) While

the argument continued, one of the three (later identified as

Noble (see id. at 137)) "pulled out a gun and . . . shot" Usher,

(id.), after which all three ran back up the hill (see id. at 145).

Leibert, Walker, and Andrews then ran into the bar and told the

bartender to call an ambulance. (See id at 148.) Without

waiting for the ambulance to arrive, however, Leibert, Walker,

and Duncan put Usher in the car and drove him to the Sheriff's

Department headquarters. (See id. at 150-51.)

2. Usher

> Leibert explained that, as of October 26, 1989, he had seen

all three of the defendants before and was able, therefore, to recognize

them. He had seen Middleton and Pittman in New York City and

recognized Noble, having seen him a few times in the Sullivan County

area that summer. (See id. at 135-40.)

2la

The second eyewitness to testify was the victim, Dwight Usher.

Usher, who also resided in New York City, testified that. he

began making trips up to Sullivan County in September, 1989

to sell crack cocaine. (See id. at 221-24.)

His territory was the Around the Comer Bar. (See id.) Usher

explained that initially he worked selling crack for a friend, John

Clairborn, but that, at some point, he met Terence Duncan. (See

id. at 229-30.) Because Duncan offered him more money than

Clairborn had been paying, Usher switched allegiances and

began to sell crack for Duncan. (/d.)

Usher testified that on October 26, 1989, at around 7:45 p.m.,

he saw "a Black male standing on the hill next to the Around the

Corner bar... ." (/d. at 23 7.) Although he had seer that person

a few times and knew that his name was Rufus,* he had never

met him. (See id. at 23 7-38.) Usher explained that because he

had never met Rufus, he "confronted him and asked him why

was he up here. . . ." (/d. at 237, 240-42.) Rufus responded that

it was none of Usher's business and told him "to get out of his

face." (/d. at 240.) Usher then went back to the bar, asked

Duncan for the keys to his car, and waited in the front passenger

seat of the car listening to music on the radio. (See id. at

242-43, 245.) About two or three minutes later, he saw three

males coming down the hill approaching the car (See id. at 244.)

One of the three, later identified as the defendant Derrick

Pittman (see id. at 246), asked him to get out of the car (see id

at 245). According to Usher, Pittman asked him why he had

confronted Middleton (see id. at 247), then backed up (see id.

at 249). "And," Usher concluded, "that's when . . . [Noble]

* Usher subsequently identified that person to be Rufus

Middleton. (See id. at 239.)

22a

pulled out the gun and shot me." (/d.) As Usher fell to the

ground, he saw his three assailants run up the hill. (See id. at

251.)

Usher also testified that he recalled Leibert, Duncan, and

Walker putting him in the car and driving him to the sheriff's

office. (See id at 253.) He recalled a conversation with a

"female sheriff' who asked him who had shot him. He

remembered that he told her that "Casim and Rufus" had shot

him. (/d. ai 253-54.) The sheriff, Corporal Marilyn Cook,

testified at the trial and corroborated Usher's account. (See id.

at 369, 380.)

3. Walker

Melvin Walker, the third eyewitness, was called by the

Petitioner. At the time of the trial, Walker was incarcerated on

narcotics charges and pursuant to a conviction for attempted

rape. On October 26, 1989, however, Walker resided in New

York City. That day, he testified, he traveled to Sullivan County

by car with Troy Leibert because Troy was scheduled to appear

in court. (See id. at 600.) Walker testified that he had been

inside the Around the Corner Bar that evening prior to the

shooting. At one point, he went outside. (/d. at 607.) According

to Walker, when he left the bar, Leibert, Andrews, Duncan,

Noble and Pittman were all inside. (See id. at 609, 692.)°

Walker testified that, upon exiting the bar, he went across the

street to a hotel to make a phone call. (See id.) On his way back

to the bar a few minutes later, while standing only six or seven

feet from Duncan's car, he saw Usher sitting in the car and saw

"three people" talking to him. (/d.) Usher got out of the car and

* Walker claimed that he did not see Middleton at all that day.

uéoreie

oat Aad en aah ea ant Big et ate RY

23a

one of the three men shot him. (See id.) Walker testified that

because it was dark (id. at 612) and because Usher's assailants

had hoods pulled over their faces (see id. at 681), he could not

identify them (id. at 608-09). However, Walker also testified

that he knew Pittman (see id. at 646) and Middleton (see id. at

647) from New York, and recognized Noble from Sullivan

County, and he was certain that those three individuals had not

been involved. (See id. at 695-96.) Finally, Walker testified that

he went to the sheriff's department with Usher, and later visited

him at the hospital. At one point, while they were in the hospital,

Walker testified that Usher asked him "who did it, who did it,"

and Walker responded that he didn't know. (See id. at 615.)

4. Andrews

The final eyewitness to testify was Walker's former fiancee,

Raphalena Andrews. Andrews had not been identified as a

witness in advance of trial. The District Attorney told the court

that he had tried unsuccessfully to locate Andrews. (See id. at

439.) When Andrews testified, she explained that she was

appearing in response to a telephone call she had received

during the trial from the Petitioner's mother, who asked her to

testify. (See id at 762.)

Andrews claimed that, on the night in question, she was

standing with Leibert, having just gotten out of a taxicab, when

the shooting occurred. (See id. at 758.) Like Walker, Andrews

testified that she could not see the shooter (see id. at 760)

because it was dark (see id. at 769) and because he and his two

companions were wearing hoods that covered their faces (see

id at 768).

Moreover, Andrews testified, like Walker, that on the day of the

shooting she was familiar enough with Middleton and Noble that

she could recognize them and was certain that neither of them

24a

had been involved with the shooting. (See id. at 765.)

B. The Alibi and Mistaken Identity Defenses

At trial, Noble and his co-defendants attempted to discredit

Leibert's and Usher's testimony. Defense counsel suggested, on

cross-examination, that Leibert's account was untrustworthy

because of the distance he stood from the shooting (30-35 feet),

the lack of lighting (see id at 202), and the fact that the car

would seem to have blocked his view of the action (see id. at

202-04). Usher's credibility was attacked by the fact that he had

confessed to dealing crack, and by the existence of some

inconsistencies between his trial testimony and his testimony

before the Grand Jury.® Noble also tried to discredit Usher by

calling Valerie Hoar, a nurse who was working in the emergency

room that night, to testify. (See id. at 538-39.) Hoar testified

that she overheard a conversation between Usher and Lieutenant

Whalen (Suarez's partner) in which Whalen asked Usher if he

knew who had shot him and Usher said that he did not. (See id.

at 541.)

In addition to the foregoing challenges to the prosecution's

evidence and the testimony of the two witnesses who claimed

that Noble and his co-defendants had not been involved, Noble

attempted to present two principal defenses at trial. He tried to

establish that (1) he had been inside the bar when the shooting

° Usher told the Grand Jury that he went to the bar on the

night of the shooting with Liebert and Walker (see id. at 310), but

testified at trial that he went there with Duncan. In addition, while

Usher testified at trial that it was after the confrontation with

Middleton that he asked Duncan for his car keys, he had told the

Grand Jury that he asked for Duncan's keys prior to the

confrontation with Middleton. (See id. at 349.)

25a

occurred; and (2) it was three different individuals -- named

Cat, Shaka, and Gary -- who confronted and shot Usher and

that he and his co-defendants had been mistakenly identified.

Several of the witnesses provided circumstantial evidence of the

misidentification theory. Usher testified that just prior to the

confrontation with Rufus Middleton, he had been involved in a

confrontation with Cat, Shaka, and Gary. (See id. at 283-84.)

During that confrontation, according to Usher, Cat held him in

a headlock and broke a gold chain he had been wearing around

his neck. (See id. at 284, 294, 316-23, 327-29.) Walker also

testified that he had witnessed, and even been involved in, the

altercation. (See id. at 607.) Detective Suarez confirmed, on

cross-examination, that he had been involved in drug

investigations in the Sullivan County area and that he was

familiar with the names Cat, Shaka, and Gary in that context.

(See id. at 499.) Finally, Corporal Cook's notes, which she took

during the initial investigation on the night of the shooting,

included a notation which read "Saab 9,000 -- Cat." (/d. at 390,

393.)

The principal evidence, however, that Noble hoped to present

on both his alibi and mis-identification theories was the

testimony of Steven Yamagata. Defense counsel represented to

the court that, if called, Yamagata would testify that "he was

there that night and he saw the prior fight between Cat, Shaka,

and Gary, and that he was inside the bar when he heard the

shots . . . and Casim was playing [a] video game, and they both

exited the bar together." (See id. at 554: see also Yamagata

Aff.) The prosecution objected to both elements of Yamagata's

testimony. With respect to the claim that Yamagata had been in

the bar with Noble when the shooting occurred, the District

Attorney argued that such testimony should be excluded

because it constituted an alibi defense and the Petitioner had

26a

failed to respond to the People's demand for notice of an alibi.’

(See Tr. at 554-56.) After giving Petitioner's counsel an

opportunity to research the question and to present any relevant

information, and after considering and rejecting an adjournment

rather than exclusion, the court sustained the People's objection.

(See id. at 573-74.) With respect to Yamagata's testimony about

7 New York's alibi-notice statute, N.Y. Crim. Proc. L. §

250.20

(McKinney's 1993), provides that:

1. At any time, not more than twenty days after arraignment, the

people may serve upon the defendant or his counsel, and file a copy

thereof with the court, a demand that if the defendant intends to offer

a trial defense that at the time of the commission of the crime charged

he was somewhere other than the scene of the crime, and to call

witnesses in support of such a defense, he must, within eight days of

service of such demand, serve upon the people, and file a copy thereof

with the court, a "notice of alibi,” reciting (a) the place or places where

the defendant claims to have been at the time in question, and (b) the

names, the residential addresses, the places of employment and the

addresses thereof of every such alibi witness upon whom he intends to

rely.

3. If at the trial the defendant calls such an alibi witness without

having served the demanded notice of alibi, or if having secured such

a notice he calls a witness not specified therein, the court may exclude

any testimony of such witness relating to the alibi defense. The court

may in its discretion receive such testimony, but before doing so, it

must, upon application of the people, grant an adjournment not in

excess of three days.

27a

the altercation between Usher and Cat, Gary, and Shaka, the

court initially decided to permit Yamagata to testify. (See id. at

575.) The court explained that it would not permit testimony

from Yamagata as to "the reason for the confrontation" (id. at

580), but that because there had been “testimony that one of the

individuals involved in this altercation was in fact in the area at

the time of the commission of the crime," it would permit "the

testimony with respect to the altercation." (/d. at 581.) Later,

however, after additional argument, the court revised its ruling,

reasoning that because Usher had testified about the altercation,

the purpose of calling Yamagata to testify about the altercation

was only to impeach Usher's testimony. (See id. at 593-94.) The

court then excluded the testimony on the ground that it was a

"collateral issue upon which a third-party witness cannot be

called to impeach the testimony of a witness." (/d.)

Consequently, Yamagata never testified

C. Procedural History

On March 21, 1991, after a little more than one hour of

deliberation, the jury returned guilty verdicts for each defendant

on each count of the Indictment.® The court entered a judgment

of conviction against Noble on May 17, 1991 for attempted

murder in the second degree, criminal use of a firearm in the first

degree (two counts), and criminal Possession of a weapon in the

second degree. He was sentenced to a prison term of 12 1/2 to

* Because assault is a lesser included offense, see N.Y. Crim.

Proc. L. § 1.20(37) (McKinney's 1993), of attempted murder, the jury

was instructed not to consider that charge if they found the defendant

guilty of attempted murder. (See Tr. at 968); N.Y. Crim. Proc. L. §

300.40 (McKinney's 1993).

28a

25 years. (See Answer at P 4.) The Appellate Division affirmed

the convictions. See People v. Noble, 209 A.D.2d 735, 618

N.Y.S.2d 123 (N.Y. App. Div. 1994). With respect to the

exclusion of Yamagata's alibi testimony, the court did not

address the merits but affirmed on the ground that "even if [it]

were to find that [the trial court] committed error when it

precluded this testimony, . . . such error would be harmless in

view of the overwhelming evidence of guilt." /d. at 124. The

Appellate Division also concluded that tnal counsel's

performance satisfied the constitutional standard, noting only

that "simple disagreement with trial strategies and tactics does

not prove ineffectiveness." /d. (citation omitted)

The Court of Appeals denied Petitioner's application for leave

to appeal. See People v. Noble, 84 N.Y.2d 1036, 623 N.Y.S.2d

192, 647 N.E.2d 464 (N.Y. 1995). Petitioner's application for

federal habeas corpus relief was filed with this Court on July 22,

1997. The Court issued an order on September 17, 1997

directing the Petitioner to show cause why his application was

not barred by the one-year statute of limitations prescribed by

Title I of the Anti-Terronsm and Effective Death Penalty Act

("“AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, codified at

28 U.S.C. §§ 2244, 2253-55. Noble responded with an

affirmation asserting, among other things, that his petition was

not time-barred because he delivered it to prison authonties to

be mailed on April 22, 1997, within the one-year statute of

limitations. Nevertheless, applying the standard that, at that

time, governed in this circuit, we dismissed Noble's petition on

the ground that his delay in seeking habeas corpus relief was

unreasonable. See Noble v. Kelly, 1998 U.S. Dist. LEXIS 48,

No. 97 Civ. 6907 (LBS), 1998 WL 8992 (S.D.N_Y. Jan. 7,

1998). In Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), the court

altered the standard to be applied by district courts when

reviewing the timeliness of habeas corpus petitions involving

convictions that predate the enactment of the AEDPA by more

29a

than one year. The Court of Appeals, therefore, vacated our

earlier dismissal of Noble's petition and remanded it to be

reconsidered in light of its holding in Ross v. Artuz. See Noble

v. Kelly, 1998 U.S. App. LEXIS 38808, No. 98-2255 (2d Cir.

Sep. 25, 1998).

On March 3, 1999, Noble filed the amended petition currently

before the Court. The petition cites the exclusion of Yamagata's

testimony, the failure of his lawyer to obtain the testimony of Lt.

Whalen, and statements made to the jury by the prosecutor

about drug gangs as the chief errors entitling him to relief. The

Respondent's Answer argues that Noble has not exhausted state

remedies with respect to some of those claims, and asserts that

the exclusion of Yamagata's alibi testimony was harmless

because it would have been duplicative of the testimony that

Walker was permitted to provide.

After this Court appointed counsel to assist Mr. Noble in the

presentation of his petition, counsel provided the court with a

letter brief elaborating on the arguments raised in Noble's pro se

petition. (See Letter from Weinstein to the Court of January 12,

2000.) The Respondent's reply merely re-iterated the contention

that Walker gave "the same testimony" that Yamagata would

have given. (See Letter from Mitzner to the Court of February

8, 200G.) As is set forth in more detail below, that claim is not

supported by the record. Walker testified that Noble was in the

bar before the shooting occurred; Yamagata would have

testified that Noble was in the bar when the shooting occurred.

30a

DISCUSSION

I. PROCEDURAL REQUIREMENTS

A. The Timeliness of the Petition

The AEDPA established a "1-year period of limitation," running

from the date a conviction becomes final, for any “application

for a writ of habeas corpus by a person in custody pursuant to

the judgment ofa State court." 28 U.S.C.A. § 2244(d)(1) (West

1999). Defendants whose convictions became final more than

one year prior to the enactment of the AEDPA had one year

from the date of that statute's enactment, or until April 24, 1997,

to file an application for habeas corpus relief. See Ross v. Artuz,

150 F.3d 97, 102 (2d Cir. 1998). Casim Noble's convictions

became final on January 30, 1995 when the New York Court of

Appeals denied him leave to appeal. See People v. Noble, 84

N.Y.2d 1036, 623 N.Y.S.2d 192, 647 N.E.2d 464 (N.Y. 1995).

Accordingly, the AEDPA requires him to have filed his petition

on or before April 24, 1997.

As a general rule, a petition for habeas corpus is deemed filed

for statute of limitations purposes when it is received by the

clerk of the district court. See Rule 3, Rules Governing Section

2254 Cases. Because Mr. Noble's petition for habeas corpus was

not received by the clerk of the district court until July 22, 1997,

it would seem at first glance that his petition is time-barred. A

prison inmate proceeding pro se, however, faces “unique”

obstacles when attempting to comply with filing deadlines.

Houston v. Lack, 487 U.S. 266, 270, 101 L. Ed. 2d 245, 108 S.

Ct. 2379 (1988). In particular, the inmate "cannot take the steps

other litigants can take to monitor the processing . .." of his

filings. Jd "Pro se prisoners cannot personally travel to the

courthouse to . . ." ensure that their papers are filed, and while

other litigants may choose to rely on the postal service, "the pro

Rae cg i a a can gern eee cree ans veara

CERAM et ak ie thetllibsile ne

drole acti asian tia IN in bh. Bie DO th

PN ee ee Re

3la

se prisoner is forced to do so by his situation." /d. at 271.

Recognizing those disadvantages, the Supreme Court has held

that a prison inmate proceeding pro se satisfies the 30-day time

limit provided by the Federal Rules of Appellate Procedure if he

delivers his notice of appeal to prison officials within the

thirty-day limit, even if it is not filed with the clerk of the court

until after the time limit has expired. See Houston v. Lack, 487

U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988).? One

threshold question presented by Mr. Noble's petition is whether

a similar "prison mailbox" rule should be applied to an

application for a writ of habeas corpus pursuant to 28 U.S.C. §

2254.

In answering that question, we begin by noting that many federal

courts have drawn upon the Supreme Court's reasoning in

Houston v. Lack, and extended its holding to establish prison

mailbox rules for the filing of other types of court papers. See,

e.g., Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999)

(FTCA administrative filing); McGore v. Wrigglesworth, 114

F.3d 601, 605 (6th Cir. 1997) (motion for extension of time to

correct deficiencies in application to proceed in forma pauperis);

Dory v. Ryan, 999 F.2d 679 (2d Cir. 1993) (civil complaint); /n

re Flanagan, 999 F.2d 753 (3d Cir. 1993) (appeal from

bankruptcy court's final order); Faile v. Upjohn Co., 988 F.2d

985, 988 (9th Cir. 1993) (service of discovery responses); Lewis

v. Richmond City Police Dep't., 947 F.2d 733 (4th Cir. 1991)

(per curiam) (civil complaint); Smith v. Evans, 853 F.2d 155 (3d

” The Federal Rules of Appellate Procedure have codified this

holding in Rule 4(c)(1), which provides that an inmate's notice of

appeal is timely filed "if it is deposited in the institution's internal mail

System on or before the last day for filing.” Fed. R. App. P 4(c)(1).

32a

Cir. 1988) (Rule 59 motion for reconsideration); Marinez v.

United States, 1996 U.S. Dist. LEXIS 1252, No. 89 Cr. 701

(DC), 1996 WL 51201 (S.D.N.Y. Feb. 8, 1996) (Rule 33

motion for new trial); Cabrera v. United States 1995 U.S. Dist.

LEXIS 11547, No. 94 Civ. 4642 (MGC), 1995 WL 479358

(S.D.N.Y. Aug. 11, 1995) (Rule 33 motion for new trial), affd,

112 F.3d 503 (2d Cir. 1996).'° In each of those cases, the court

examined the circumstances surrounding the filing deadline at

issue and tried to determine whether the concerns expressed by

the Supreme Court in Houston v. Lack were present.

In this case, then, we must examine whether the Houston

Court's concerns are present in the context of an inmate filing an

application for habeas corpus relief. In one important sense, they

are not. The Court in Houston was primarily concerned with the

relative obstacles facing prison inmates as compared to

non-incarcerated litigants. See Houston, 487 U.S. at 270-71. In

§ 2254 actions, however, all litigants are prison inmates. In fact,

being an inmate is a statutory prerequisite to filing. See 28

U.S.C. § 2254(a) (authorizing federal courts to entertain

application for a writ of habeas corpus "in behalf of a person in

custody"). The drafters of the Rules Governing Section 2254

actions were obviously aware of this fact and may be assumed

to have drafted Rule 3's filing requirements with the custodial

status of petitioners in mind. A petitioner's custodial status,

however, is only one element of the disadvantage recognized by

the Court in Houston. The other aspect is the lack of

representation by counsel. That disadvantage is not shared by all

applicants for a writ of habeas corpus. See 28 U.S.C. § 2254(a)

(authorizing federal courts to entertain applications for writs of

10 But see Coleman v. Johnson, 184 F.3d 398 (5th Cir. 1999)

(declining to establish prison mailbox rule for filing of application for

state post-conviction remedies).

OD OEM RS thitah PEN LPAI APB 4 hi EM

33a

habeas corpus "in behalf of a person in custody.") (emphasis

added). Although Noble is, at this time, represented by counsel

(by virtue of this Court's appointment of counsel for this

proceeding), when he originally filed his petition he was

proceeding pro se. The Houston Court's concerns with the

relative disadvantages facing inmates proceeding pro se remains,

therefore, a compelling concern in this context.

On at least one occasion, the Supreme Court has rejected the

use of a prison mailbox rule. See Fex v. Michigan, 507 U.S.43,

122 L. Ed. 2d 406, 113 S. Ct. 1085 (1993). The Interstate

Agreement on Detainers ("IAD") permits inmates in one

jurisdiction who are facing prosecution in another jurisdiction to

demand resolution of any pending indictment, information, or

complaint in that other jurisdiction within 180 days by sending

written notice of his incarceration to prosecuting officials. In

Fex v. Michigan, 507 U.S. 43, 122 L. Ed. 2d 406, 113 S Ct.

1085 (1993), the Court held that this 180-day period runs from

the time the prosecuting official receives the notice rather than

from the time the inmate delivers his notice to prison officials to

be mailed. The Court based its reasoning on a careful exegesis

of the IAD's text, which specified that the 180-day period began

"after [the inmate] shall have caused [notice] to be delivered . .

." to prosecuting authorities. To the Supreme Court, it was

apparent that the "cause to be delivered" language referred to

the receipt of the document. Recognizing the Supreme Court's

emphasis on interpretation of the Statutory text, the Court of

Appeals recently explained that the Fex opinion signifies that

"Houston does not apply . . . when there is a specific statutory

regime to the contrary." Tapia-Ortiz v. Doe, 171 F.3d 150, 152

n.1 (2d Cir. 1999).

Although the AEDPA appears to be a "specific statutory

regime," we do not find that it is contrary to the application of

a prison mailbox rule for § 2254 cases. To begin with, the

34a

AEDPA itself is silent with respect to when an application is

filed for statute of limitations purposes. The prevailing rule

comes from the Rules Governing Section 2254 cases, which

predates the enactment of the AEDPA's time limit. Moreover,

the specific language used in that rule is quite different from the

statutory language that was so persuasive to the Court in Fex.

The IAD formulated the statute of limitations in terms of

"causing to be delivered;" Rule 3 simply states that a petition

"shall be filed with the clerk of the district court." Rule 3's

formulation, moreover, is virtually identical to the language at

issue in Houston itself. See Fed. R. App. P. 4(a)(1) ("the notice

of appeal .. . must be filed with the district clerk .. ."). We

understand, of course, that the purpose of the AEDPA was

generally to expedite the filing of habeas corpus petitions, but

we are unble to conclude that Congress did so by silently

amending Rule 3 of the Rules Governing Section 2254 Cases to

prohibit the operation of a prison mailbox rule.

We conclude, therefore, that the prison mailbox rule should

apply to petitions filed by pro se inmates seeking a writ of

habeas corpus, pursuant to 28 U.S.C. § 2254. Accord Jones v.

Bertrand, 171 F.3d 499, 502 (7th Cir. 1999); Miles v. Prunty,

187 F.3d 1104 (9th Cir. 1999); Nichols v. Bowersox, 172 F.3d

1068, 1073-77 (8th Cir. 1999) (en banc); Sporville v. Cain, 149

F.3d 374, 378 (Sth Cir. 1998); Burns v. Morton, 134 F.3d 109,

113 (3d Cir. 1998); Hoggro v. Boone, 150 F.3d 1223, 1226n.3

(6th Cir. 1997); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997);

Torres v. Irvin, 33 F. Supp. 2d 257, 270 (S.D.N.Y. 1998);

Hoyer v. Senkowski, 1998 U.S. Dist. LEXIS 22772, No. 97 Civ.

674, 1998 WL 357339 (N.D.N.Y. May 22, 1998). Ms. Noble's

application will therefore be considered timely if it can be shown

that he delivered it to prison authorities on or before April 24,

1997.

The question of which party bears the burden of proof on this

i

{

i

}

35a

question remains open in this circuit. See Covington v. DiBiase,

1999 U.S. App. LEXIS 1397, *2, n.1, No. 27 2650, 1999 WL

48775, at *1 n.1 (2d Cir. Jan. 29, 1999). ve need not reach

that question in this case, however, because Petitioner has

provided sufficient evidence that he submitted his application to

prison authorities on April 22, 1997, and the Respondent has

not challenged that fact. In an affirmation filed with the Court,

Mr. Noble indicates that his application for habeas corpus "was

placed in the hands of the company C.O. for signature by the

Hall Captain and transfer to Facility Business Office on Apnil 22,

1997." (Pet. Aff. at 3.)'? The affirmation also states that the

"disbursement form" confirms this date, id., and the copy of the

disbursement form that was attached reflects that Noble

submitted it on April 22, 1997. In addition, the Court notes that

the original petition was signed by Mr. Noble on January 15,

1997, and finds that this fact corroborates Mr. Noble's

contention that it was delivered to prison authorities prior to

April 24, 1997. See Torres v. Irvin, 33 F. Supp. 2d 257, 270

(S.D.N.Y. 1998) ("Absent evidence to the contrary, the Court

assumes that Torres gave his petition to prison official for

mailing on the date he signed it... .") (citing Hunter v.

Kuhlman, 1998 U.S. Dist. LEXIS 5378, *4 n.2, 97 Civ. 4692,

1998 WL 182441, at *1n.2(S.D.N_Y. April 17, 1998); Hughes

'’ For an extended analysis of the burden of proof issue in this

context, see Thomas v. Gish, 64 F.3d 323, 324-25 (7th Cir. 1995).

'? See Robinson v. P.O. Nicole Matos et al. , 1999 U.S. Dist.

LEXIS 5447, No. 97 Civ. 7144(TPG), 1999 WL 225938, at *3

(S.D.N.Y. April 19, 1999) (finding that complaint was filed when

delivered to prison authorities when only evidence was plaintiff's own

statement).

36a

v. Irvin, 967 F. Supp. 775, 778 (E.D.N.Y. 1997); Jones v.

Artuz, 1997 U.S. Dist. LEXIS 15581, No. CV 97-2394, 1997

WL 876735, at *1 (E.D.N.Y. Sept. 13, 1997)); Cabrera v.

United States, 1995 U.S. Dist. LEXIS 11547, *3 n.1, No. 94

Civ. 4642, 1995 WL 479358, at *1 n.1 (S.D.N-Y. Aug. 11,

1995). For these reasons, the Court finds that Mr. Noble

submitted his application to prison authorities to be mailed on

April 22, 1997. It is, therefore, timely.

B. The Exhaustion Requirement

A federal court may not grant habeas corpus relief to a person

in custody pursuant to a judgment of a State court unless "the

applicant has exhausted the remedies available in the courts of

the State." 28 U.S.C. § 2254(b)(1)(A). This requirement, which

is grounded in principles of “federalism, comity, and udicial

economy," Murray v. Carrier, 477 U.S. 478, 488-89, 91 L. Ed.

2d 397, 106 S. Ct. 2639 (1986), requires a petitioner to raise all

of his claims in the highest state court available prior to

presenting them to a federal court as part of a petition for a writ

of habeas corpus. See Tyson v. Keane, 159 F.3d 732, 735 (2d

Cir. 1998), cert. denied sub. nom. Tyson v. Greiner, 526 U.S.

1027, 119 S. Ct. 1270, 143 L. Ed. 2d 365 (1999).

Although Respondent disputes exhaustion (see Answer at P 15),

he does not explain his reasoning. In any event, it is apparent

from the Appellate Division's opinion affirming the conviction

that the claims presented in Noble's amended petition are

virtually identical to the claims presented to the state court,

including the claims presented in Noble's supplemental briey to

the Appellate Division. See Daye v. Attorney General, 696 F.. °

186, 192 (2d Cir. 1982) (en banc) (holding that claims are

exhausted when substance of petitioner's claims on direct appeal

is same as substance in petition, even if phrased differently).

37a

Because the Court of Appeals denied Mr. Noble leave to appeal

the Appellate Division's ruling, his claim reached the highest

state court for exhaustion purposes. See Williams v. Smith, 591

F.2d 169, 171 (2d Cir. 1979) (holding that state remedies were

exhausted after decision by the Appellate Division and denial of

leave to appeal by the Court of Appeals), Ramirez v. Headley,

1998 U.S. Dist. LEXIS 17744, 98 Civ. 2603 (RWS), 1998 WL

788782, at *4 (S.D.N.Y. Nov. 10, 1998). The Court finds,

therefore, that Mr. Noble has exhausted state remedies with

respect to all of his claims.

Il. EXCLUSION OF ALIBI TEST ONY

A. Legal Standard

The Sixth Amendment to the Federal Constitution guarantees

every criminal defendant “the right... to have compulsory

process for obtaining witnesses in his favor... ." U.S. Const.

amend. VI. Although some have suggested that the Compulsory

Process Clause only guarantees the power to subpoena

witnesses, see Taylor v. Illinois, 484 U.S. 400, 407-08 nn.

10-12, 98 L. Ed. 2d 798, 108 S. Ct. 646 (1987), the Supreme

Court of the United States has consistently held that such a right

would be meaningless unless it were also interpreted as a right

to present those witnesses at trial. See Michigan v. Lucas, 500

U.S. 145, 149, 114 L. Ed. 2d 205, 111 S. Ct. 1743 (1991);

Taylor, 484 U.S. at 407-08 ("Our cases establish at a minimum,

that criminal defendants have. . the right to put before a jury

evidence that might influence the determination of guilt.")

(citing Pennsylvania v. Ritchie, 480 U.S. 39, 56, 94 L. Ed. 2d

40, 107 S. Ct. 989 (1987)). The right to present exculpatory

testimony is central to the concept of an adversary system, see

Taylor, 484 U.S. at 408-09 (citing United States v. Nixon, 418

U.S. 683, 709, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974)), and

is "a fundamental element of due process of law," 484 U.S. at

38a

409 (citing Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d

1019, 87 S. Ct. 1920 (1967)). See also Chambers v.

Mississippi, 410 U.S. 284, 302, 35 L. Ed. 2d 297, 93 S. Ct.

1038 (1973) ("Few nghts are more fundamental than that of an

accused to present witnesses in his own defense").

Of course, the accused's night to present witnesses in his defense

is not without limits. For example, a court may limit the

presentation of evidence if it is concerned about "harassment,

prejudice, confusion of the issues, the witness' safety, or

interrogation that is repetitive or only marginally relevant."

Delaware v. Van Arsdall, 475 U.S. 673, 679, 89 L. Ed. 2d 674,

106 S.Ct. 1431 (1986). Similarly, it is consistent with the

Compulsory Process Clause for the states to enact discovery or

evidentiary rules that limit a defendant's opportunities to prevent

favorable testimony. See Lucas, 500 U.S. at 149-151 (rape

shield statute); Rock v. Arkansas, 483 U.S. 44, 55-56, 97 L. Ed.

2d 37, 107 S. Ct. 2704 (1987) (citing Chambers, 410 U.S. at

295).

Alibi-notice statutes, such as the one at issue here, have been

reviewed by the Court on two occasions and found to be

constitutional each time. See Wardius v. Oregon, 412 U.S. 470,

474, 37 L. Ed. 2d 82, 93 S. Ct. 2208 (1973) (describing a

similar statute as "a salutary development which, by increasing

the evidence available to both parties, enhances the fairness of

the adversary system"); Williams v. Florida, 399 U.S. 78, 90,

26 L. Ed. 2d 446, 9uU 8. Ct. 1893 (1970) (an alibi-notice statute

"by itselfin no way affected [the defendant's] crucial decision to

call alibi witnesses. . . . At most, the rule only compelled the

defendant to accelerate the timing of his disclosure . . . .").

In Zaylor v. Illinois, 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct.

646 (1987), the Supreme Court addressed the constitutionality

of excluding exculpatory evidence as a sanction for violating a

39a

discovery rule, by articulating a balance between the state's need

to control the evidence presented at trial and an accused's nght

to present a defense. The Court premised its reasoning on the

Proposition that the essential purpose of the Compulsory

Process Clause is to ensure that judgments are not "founded on

a partial or speculative presentation of the facts." Jd. at 411

(quoting Nixon, 418 U.S. at 709). As the court explained,

however, that principle . _ . is also the source of essential

limitations on the right. The adversary process could not

function effectively w'thout 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 trial process would be a shambles if either party had an

absolute right to control the time and content of his witness’

testimony. 484 U.S. at 410-1]. Discovery procedures, like an

alibi-notice statute, “minimize[] the risk that a judgment will be

predicated on incomplete, misleading, or even deliberately

fabricated testimony." /d. at 4] 1-12; see also id. at 412 (noting

state's need to protect itself from "an eleventh-hour defense").

Trial courts, therefore, should administer and enforce those

discovery procedures in light of the principle that the ultimate

goal of the adversary process is to provide the triers of fact with

evidence that is as thorough and complete as possible. "A trial

judge," therefore, "may . . . insist on an explanation for a party's

failure to comply with..." a discovery rule. See id. at 415.

If that explanation reveals that the omission was willful and

motivated by a desire to obtain a tactical advantage that would

minimize the effectiveness of cross-examination and the ability

to adduce rebuttal evidence, it would be entirely consistent with

the purposes of the Compulsory Process clause simply to

exclude the witness' testimony.

40a

Id. (citing United States v. Nobles, 422 U.S. 225, 45 L. Ed. 2d

141, 95 S. Ct. 2160 (1975)). A defendant may not invoke the

Compulsory Process Clause in a manner that undermines the

effectiveness of the adversary system as a means of discovering

the truth. But if no such reason is found, then the extreme

sanction of exclusion may be inappropnate and an alternative

sanction should be considered. See 484 U.S. at 413-14.

In Escalera v. Coombe, 826 F.2d 185 (2d Cir. 1987), which was

decided before 7ay/or, the court reversed a denial of a petition

for habeas corpus on the ground that, in the particular

circumstances of that case, it was unconstitutional for the state

tnal court to preclude the testimony of a proffered alibi witness

because of counsel's failure to file notice of an alibi. The court

noted that "Escalera's counsel offered the court no reasonable

explanation for [his] failure" to comply with the statute, id at

188, but nevertheless found that the tremendous importance of

the proffered alibi outweighed that concern. See id at 191-92.

"There simply is nothing more maternal to Escalera's guilt or

innocence than evidence of his whereabouts during the thirty

minutes immediately preceding the crime." Jd. Applying the

balancing test which then prevailed, see Ronson v. Comm'r of

Correction of New York, 604 F.2d 176, 178-79 (2d Cir. 1979)

(applying balancing test in context of notice of insanity defense

statute); cf Walker v. Hood, 679 F. Supp. 372, 380-81

(S.D.N.Y. 1988),” the court concluded that "preclusion of an

important defense witness solely as a sanction for failure to

comply with New York's alibi notice statute was constitutionally

impermissible absent a demonstration of substantial prejudice to

the prosecution's case." 826 F.2d at 194.

'3 See also Alicea v. Gagnon, 675 F.2d 913, 917-925 (7th

Cir. 1981) (analyzing permissibility of exclusion of defendant's alibi

testimony pursuant to Wisconsin's alibi-notice statute).

hnerrrsnsnsarnerneeertimamemmenssssemmmmmnaannecenenttiniiaiiaiiiiniiiiliaiial

4la

Upon the state's petition for a writ of certiorari, the Supreme

Court vacated Escalera and remanded for reconsideration in

light of its intervening decision in Taylor. See Coombe vy.

Escalera, 484 US. 1054, 98 L. Ed. 2d 971, 108 S. Ct. 1004

(1988); Escalera v. Coombe, 852 F 2d 45, 45 (2d Cir. 1988)

(per curiam). On remand, the court, applying 7aylor, focused on

whether defense counsel's failure to file an alibi notice occurred

in circumstances that might frustrate the integrity of the

adversary process. The court noted that although the district

court had referred to defense counsel's "apparent bad faith -- or,

at least, the absence of a good excuse," that finding was an

insufficient basis for preclusion. Escalera, 852 F 2d at 48 (citing

Escalera v. Coombe, 652 F. Supp. 1316, 1324 (E DN.Y.

1987)). "The absence of a good excuse," the court reasoned, "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." /d. Therefore, the

court remanded the case to the district court for an evidentiary

hearing "as to whether or not the failure of Escalera's counsel to

list . . . a potential alibi witness meets the standards enunciated

in Jaylor ... ." Id; see also United States v. Levy-Cordero, 67

F.3d 1002, 1015 (1st Cir. 1995) (remanding to district court for

evidentiary hearing as to whether defense counsel's failure to

comply with federal alibi notice requirements was willful); Poo

v. Hood, 1991 U.S. Dist. LEXIS 4861, No. 89 Civ. 7574

(MBM), 1991 WL 60389, at *2 (S.D.N.Y. April 12, 1991)

(ordering evidentiary hearing to determine whether defense

counsel's failure to comply with New York's alibi-notice statute

was willful, as articulated in Taylor)."

‘* After an evidentiary hearing, the court concluded that

preclusion was inappropriate because defense counsel's failure was not

willful. See Poo v. Hood, 1992 U.S. Dist. LEXIS 1535, No. 89 Civ.

7874, 1992 WL 30617, at *4 (S.D.N.Y. Feb. 12, 1992). Nevertheless,

the court concluded that the error was harmless in light of the

42a

B. Application to Yamagata's Testimony

When defense counsel offered to call Mr. Yamagata during tnal,

and proffered that Yamagata would testify that he was inside the

bar with Noble when the shooting occurred, the tral court,

appropriately, inquired as to the reason that defense counsel had

failed to provide notice of an alibi defense. Noble's counsel

responded that he did not file an alibi notice because he did not

believe that the testimony being offered constituted an alibi. He

argued that, for purposes of compliance with the alibi notice

statute, the Indictment defined the scene of the crime and that

the Indictment in this case alleged crimes occurring "in the

vicinity of the Around the Corner Bar," which would,

presumably, include the bar's interior. (See Tr. at 555.) Defense

counsel also maintained that Yamagata's testimony would not

constitute an alibi because, even if the crime scene was the front

of the bar, the proffered testimony only placed the defendant a

short distance away. (See id. at 554.)

The trial court rejected both of defense counsel's arguments.

The court noted that the District Attorney had served Noble's

counsel with an alibi demand on April 16, 1990 -- almost a full

year prior to the commencement of the trial. The demand called

for a response if the defendant intended “to offer a trial defense

that at the time of the commission of the crime(s) charged you

were at some place or places other than the scene of the crime

...." (Alibi Demand) A discovery response provided by the

prosecution on the very same day identified the "place. . . of the

alleged occurrence" to be the area "in front of the Around the

Corner Bar . . . ." (Response to Court's 20 Day Order at P 1.)

negligible "potency" of the excluded testimony and therefore denied

relief. Id. at *5. :

a =

43a

According to the court, it was this discovery response rather

than the Indictment that defined the scene of the crime for

purposes of applying the alibi notice statute (See Tr. at 574.)

Moreover, the court rejected defense counsel's other argument

-- that the term "alibi" is limited to those defenses placing the

defendant far from the crime scene -- reasoning that an alibi

correctly describes any defense in which the defendant is

anywhere other than the crime Scene, even someplace quite

nearby. (See id.)

We are not concerned here with whether those two rulings were

correct; they are matters of state law and would not, even if

erroneous, permit this Court to grant habeas corpus relief. See

Lewis v. Jeffers, 497 U.S. 764, 765, 111 L. Ed. 2d 606, 110 S.

Ct. 3092 (1990) ("Federal habeas corpus does not lie for errors

of state law."). Our inquiry relates to whether preclusion of

Yamagata's testimony was an appropriate sanction for counsel's

failure to file a notice of an alibi defense, assuming that he was,

in fact, required to do SO, Or was violative of Petitioner's Sixth

Amendment rights. Our review of the record discloses that the

court excluded Yamagata's testimony without ever finding that

counsel's failure to file the requisite notice was willful or

otherwise motivated by a desire for tactical advantage. The

court stated that it did not find an "acceptable reason" (see Tr.

at 574), but, as the Second Circuit has observed, "the absence

of a good excuse is not necessarily commensurate with ‘willful’ —

conduct... ." Escalera, 852 F.2d at 48. Far from being willful

or tactical, defense counsel's failure to file the notice appears to

have been motivated by a genuine, albeit apparently erroneous,

belief that Yamagata's testimony was not an alibi. The record

reveals no inquiry as to whether defense counsel's position was

taken in bad faith, nor does it did close any reason that the trial

court might have so believed. We are mindful, of course, that

the Supreme Court did not intend for 7: aylor's focus on willful

violation of discovery procedures to serve as an exclusive test

44a

as to the conditions under which preclusion is appropriate. See

Taylor, 414 ("It is neither necessary nor appropriate for us to

attempt to draft a comprehensive set of standards to guide the

exercise of discretion in every possible case."). But where, 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 tnal, we conclude that the

court's exclusion of the alibi evidence violated the defendant's

nghts under the Compulsory Process Clause.

Our conclusion is reinforced by the minimal degree of prejudice

that an alternative sanction would have caused the prosecution.

In the course of the investigation that followed immediately after

the shooting, the sheriff's department secured the bar and

interviewed many of the patrons who had been inside. (See Tr.

at 407-08.) Unlike the typical alibi defense, therefore, in which

the defendant claims to have been at some distant, unknown

locale, the prosecution in this case had a wealth of evidence

about the place where the defendant claimed to have been and

about the other witnesses who might contradict that testimony.

Moreover, Yamagata was in custody at the time he was

proffered as a witness. The prosecution surely possessed

information about him, therefore, which it might have used to

impeach his testimony. Finally, it should be noted that

Yamagata was proffered as a witness after theclose of the

prosecution's case; no prosecution witnesses would have been

inconvenienced by a brief delay. Had the trial court permitted

Mr. Yamagata 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 be asked to

render a verdict would have been more complete and accurate,

not less. In such circumstances, we conclude that the trial

court's decision to exclude the testimony, in the absence of any

finding of bad faith or willful misconduct, violated Noble's rights

Lhnmesenpentemenennenenssitititeesiiiiintiasibaiiiiaii

-

45a

under the Compulsory Process Clause of the Sixth Amendment.

Cf. State v. Harris, 132 Idaho 843, 979 P.2d 1201, 1205 (Idaho

1999) (applying Taylor, and concluding that exclusion of

exculpatory testimony to be unconstitutional when court never

inquired into prejudice caused to prosecution).

C. Harmless Error

Although it was the principal issue raised on direct appeal, the

Appellate Division did not reach the question of whether the

trial court correctly applied state or federal law in precluing Mr.

Yamagata's testimony. The court reasoned that “even if [it]

were to find that [the trial court] committed error when it

precluded this testimony . . . such error would be harmless in

view of the overwhelming evidence of guilt." People v. Noble,

209 A.D.2d 735, 618N.Y.S.2d 123, 124 (N.Y. App. Div. 1994)

(citations omitted). In so ruling, the court seems to have applied

New York's harmless error standard for non-constitutional

errors. See People v. Crimmins, 36 N.Y.2d 230, 326 N.E.2d

787, 791-94, 367 N.Y.S.2d 213 (N.Y. 1975). Although

"verbalization" of that standard as it has been applied over the

years “cannot be nicely harmonized," 326 N.E.2d at 792, one of

its distinguishing characteristics is that it permits a reviewing

court to find an error harmless if it finds "overwhelming proof

of the defendant's guilt," 326 N.E.2d at 793-94.

By contrast, when a state ccurt reviews a conviction on direct

appeal in which a federal constitutional error is established, the

court must "be able to declare a belief that [the trial court's error

was] harmless beyond a reasonable doubt," Chapman vy.

California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824

(1967), in order to find the error harmless. The Chapman

standard provides that an "error is not harmless .__ if ‘there is a

reasonable possibility that the. . . [error] might have contributed

to the convictton;"no matter how “overwhelming may be the

46a

quantum and nature of other proof." Crimmins, 326 N.E.2d at

794 (citing Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d

705, 87 S. Ct. 824 (1967); Fahy v. Connecticut, 375 U.S. 85,

86, 11 L. Ed. 2d 171, 84 S. Ct. 229 (1963)). Because the

Appellate Division failed to consider the causal effect of

Yamagata's exclusion on the jury's verdict, focusing instead on

its assessment that the evidence of guilt was overwhelming, it

clearly applied an incorrect standard. We are not bound,

therefore, by the Appellate Division's conclusion that any error

that occurred here was harmless.

Nevertheless, to grant habeas corpus relief, this Court must also

decide whether the trial court's error and the Appelate Division's

affirmance thereof were harmless. See Brecht v. Abrahamson,

507 U.S. 619, 123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993). But

because this case comes to us on collateral review, rather than

direct review, we do not apply the Chapman harmless error

standard even though the error is constitutional in nature. See

id. at 638.'* To find the error harmless, for habeas purposes, we

must determine that it did not have a "substantial and injurious

effect or influence in determining the jury's verdict." Brecht, 507

U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750,

776, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946)); see also

Kotteakos, 328 U.S. at 764-65 ("If . . . the [court's] conviction

is sure that the error did not influence the jury, or had but slight

_'S Because the exclusion of Yamagata occurred "during the

presentation of the case to the jury” and "may . . . be quantitatively

assessed in the context of other evidence presented . . .,” it is a “trial

error" subject to harmless error review rather than a structural error

requiring immediate reversal. Brecht, 507 U.S. at 629-30; see Wray

v. Johnson, 202 F.3d 515, 525, 2000 U.S. App-LEXIS 1248, *25 (2d

Cir. 2000).

47a

effect, the verdict and judgment should stand... . . But if one

cannot say, with fair assurance, . . . that the judgment was not

substantially swayed by the error," then it is harmful.) If, when

all is said and done, we are in grave doubt as to whether or not

the exclusion of Yamagata's testimony had such an effect, we

must find the error harmful and grant relief. See O'Neal v.

McAninch, 513 U.S. 432, 440, 130 L. Ed. 2d 947, 115 S. Ct.

992 (1995).

We are persuaded, from a thorough examination of the record

in this case, that the exclusion of Yamagata's testimony did have

a substantial and injurious effect in determining the jury's

verdict. The Respondent claims that the exclusion of Yamagata's

alibi testimony was harmless because Melvin Walker offered the

same testimony. However, as the trial court itself noted during

trial (see Tr. at 611), Melvin Walker testified that Mr. Noble

was inside the bar before the shooting occurred, but never

testified that Mr. Noble was in the bar when the shooting

occurred. (See id. at 607-09, 693.)

We note as well that the District Attorney successfully

impeached Walker's testimony on cross-examination by

revealing that Walker had previously identified Noble as the

shooter. Jd at 711.'© The only other defense witness who

'© The District Attomey also demonstrated that Walker's

testimony was inconsistent with the little physical evidence that was

available. For example, Walker testified that the windows of

Duncan's car were tinted (see id. at 663), which was, apparently

contradicted by Detective Suarez's testimony and by the photographs

of the car that were admitted into evidence (see id. at 689-90). Also,

Walker told the sheriff's department that he had never been to the

Around the Comer Bar prior to the night of Usher's shooting (see id.

at 631) and that he came up with Leibert and Andrews on a bus (see

id. at 704) rather than by car, both of which contradicted his trial

48a

claimed that Nobile had not been the shooter, Andrews, was

similarly impeached by the fact that she had made a statement on

the night of the shooting identifying Noble as the shooter.

Although both Andrews and Walker had explanations for that

crucial inconsistency,'’ Yamagata's testimony, as far as the

record discloses, could not have been similarly discredited.

Walker's testimony does not, therefore, render the exclusion of

Yamagata's alibi testimony harmless. Petitioner's trial focused,

almost exclusively, on conflicting identification testimony; we

cannot conclude, as we must to find the error harmless, that

Yamagata's exclusion did not have a substantial and injurious

effect on the jury's verdict. Particularly in light of the

inconsistencies and other problems with Liebert's and Usher's

testimony. Finally, the District Attorney also discredited Walker by

suggesting a possible bias due to the fact that the same District

Attorney was responsible for prosecuting Walker.

'7 Walker claimed that (1) the statement was typed by

someone else and did not accurately reflect what he told the officers

-(see id. at 698-99, 748-49, 753-54); (2) that when he made the

statement he was tired and wanted to leave and therefore told the

officers what they wanted to hear (see id. at 750), and (3) that he

intentionally implicated Noble in the shooting because he was in

competition with Noble for drug sales and wanted to put Noble out of

business (see id. at 747). The only explanation Andrews offered for

her prior inconsistent statement was that before speaking to the sheriff

she had spoken to Leibert and some of his friends (see id. at 795), and

that “everybody else was saying it too” (id. at 786).

49a

testimony and the total lack of any physical evidence,"® a

potential alibi might very well have altered the outcome of the

trial. The exclusion of that witness was not harmless.

D. Standard for Granting Habeas Corpus Relief

When the claims presented in an application for habeas corpus

relief have been fully presented to the highest state court, a

federal court may only grant the application if the State court

adjudication "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.A. § 2254(d)(1) (West 1999). Interpretation

of that convoluted language has engendered a pronounced split

among the federal circuit courts, see Leka v. Portuondo, 76 F.

Supp. 2d 258, 268 n.21 (E.D.N_Y. 1999) (summarizing in detail

the positions of the different circuits), as to which the Second

Circuit has, to date, remained silent, see Smalls v. Batista, 191

F.3d 272, 278 n.5 (1999)."

'’ The 380 cartridges and bloody, bullet-ridden coat are

physical evidence that Usher was shot, but do not, in any way, link

Noble or his co-defendants to the crime.

' The Supreme Court heard oral argument on this question on

October 4, 1999 in Williams v. Taylor, 120 S. Ct. 299, 145 L. Ed. 2d

29. For a transcript of the argument, see Williams v. Taylor, 120 S.

Ct. 299, 145 L. Ed. 2d 29, WL 813784 (Oct. 4, 1999). In light of the

protracted nature of these proceedings, and our concern that the

Petitioner may be detained improperly, we do not believe it would be

appropriate to defer further resolution of this petition pending a

decision in that case. Moreover, for the reasons set forth below, we do

not anticipate that the Court's decision in Williams v. Ti aylor will

50a

According to one view, first advanced in Lindh v. Murphy, 96

F.3d 856 (7th Cir. 1996) (en banc), rev'd on other grounds, 521

U.S. 320, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997), the words

"contrary to. . . clearly established Federal law, as determined

by the Supreme Court of the United States" state the relevant

standard only when a claim involves a pure question of law. See

id. at 870; Neelley v. Nagle, 138 F.3d 917, 923-24 (1998).

When the claim involves a mixed question of law and fact,

however, the federal court acts pursuant to the clause referring

to an “unreasonable application of . . clearly established Federal

law," and exercises more deferential review. See Neelley, 138

F.3d at 924; Drinkard v. Johnson, 97 F.3d 751, 769 (1996);

Lindh, 96 F.3d at 870.” Another approach, originating with

affect the resolution of this case.

*° This approach has been followed in the following cases:

Neelley v. Nagle, 138 F.3d 917, 924 (11th Cir. 1998), cert. denied,

525 U.S. 1075, 119 S. Ct. 811, 142 L. Ed. 2d 671 (1999); Hennon v.

Cooper, 109 F.3d 330, 334 (7th Cir.), cert. denied, 522 U.S. 819,

139 L. Ed. 2d 32, 118 S. Ct. 72 (1997); Drinkard v. Johnson, 97 F.3d

751, 767-68 (Sth Cir. 1996), cert. denied, 520 U.S. 1107, 137 L. Ed.

2d 315, 117 S. Ct. 1114 (1997); Glover v. Portuondo, 1999 U.S.

Dist. LEXIS 7986, 96 Civ. 7616(JGK), 1999 WL 349936 (S.D.N.Y.

May 28, 1999); Millan v. Keane, 1999 U.S. Dist. LEXIS 3884, 97

Civ. 3874(JGK), 1999 WL 178790 (S.D.N.Y. Mar. 31, 1999);

Montalvo v. Portuondo, 1998 U.S. Dist. LEXIS 19137, 97 Civ.

3336(RWS), 1998 WL 851589 (S.D.N.Y. Dec. 9, 1998); Natal v.

Bennett, 1998 U.S. Dist. LEXIS 18868, 98 Civ. 1872(RWS), 1998

WL 841480 (S.D.N.Y. Dec. 3, 1998); Carromero v. Strack, 1998

U.S. Dist. LEXIS 18906, 98 Civ. 3519(LAP), 1998 WL 849321

(S.D.N.Y. Nov. 19, 1998); Rodriguez v. Bennett, 1998 U.S. Dist.

LEXIS 17274, 98 Civ. 580(LBS), 1998 WL 765180 (S.D.N.Y. Nov.

2, 1998); Redd v. Quinones, 1998 U.S. Dist. LEXIS 15753, 98 Civ.

Sla

O'Brien v. DuBois, 145 F.3d 16, 24 (1st Cir. 1998), focuses on

the portion of § 2254(d) that refers to Federal law "as

determined by the Supreme Court of the United States." A

federal court following this approach must review state court

decisions and determine, first, whether the Supreme Court has

prescribed a "governing rule," which exists if a Supreme Court

decision "by virtue of its factual similarity . . . or its distillation

of general federal law precepts into a channeled mode of

analysis specifically intended for application to variant factual

Situations can fairly be said to require a particular result in a

particular case." O’Brien, 145 F.3d at 25. If so, then the court

reviews the state court decision using the "contrary to" clause,

whether the question is a pure question of law or a mixed

question, and grants relief if the state court reached a different

result than that required by the Supreme Court's governing rule.

If not, then the habeas court applies the “unreasonable

application clause," in which case the state court decision "must

be so offensive to existing precedent, so devoid of record

Support, or so arbitrary, as to indicate that it is outside the

universe of plausible, credible outcomes." O'Brien, 145 F.3d at

25; see also Matteo v. Superintendent, SCI Albion, 171 F.3d

877, 891 (1999) ("whether the state court decision, evaluated

objectively and on the merits, resulted in an outcome that cannot

2604(LBS), 1998 WL 702334 (S.D.N.Y. Oct. 7, 1998); Fernandez

v. Dufrain, 11 F. Supp. 2d 407 (S.D.N.Y. 1998); Morgan v. Bennett,

1998 U.S. Dist. LEXIS 8652, 96 Civ. 4106(ERK), 1998 WL 315135

(E.D.N.Y. May 27, 1998); Remirez v. Senkowski, 7 F. Supp. 2d 180

(E.D.N.Y. 1998); Smalls v. Batista, 6 F. Supp. 2d 211 (S.D.NLY.

1998); Smith v. Sullivan, 1 F. Supp. 2d 206 (W.D.NLY. 1998);

Mobley v. Stinson, 1997 U.S. Dist. LEXIS 1885, 94 Civ. 5911(HB),

1997 WL 80587 (S.D.N_.Y. Feb. 26, 1997).

52a

reasonably be justified").7' Finally, the third approach,

articulated in Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998),

cert. granted, 526 U.S. 1050, 119 S. Ct. 1355, 143 L. Ed. 2d

516 (1999), combines elements of both and provides that —

“habeas relief is authorized only when the state courts have

decided the question by interpreting or applying the relevant

precedent in a manner that reasonable jurists would all agree is

unreasonable." Jd. at 865 (quoting Green v. French, 143 F.3d

865, 870 (4th Cir. 1988)) (internal quotation marks omitted).

It is our view that the trial court's decision to exclude

Yamagata's alibi testimony was erroneous, see supra Part II(B),

and harmful, see supra Part II(C). To grant relief, however, we

must determine whether that error was “contrary to" or "an

unreasonable application of" clearly established federal

constitutional law, as those terms have been construed by the

various circuit courts. We believe that under any interpretation

of those terms, the deprivation that occurred here entitles the

Petitioner to a writ of habeas corpus.

The trial court's error, and the Appellate Division's erroneous

affirmance thereof, involve pure questions of law. The trial court

did not consider whether defense counsel had wilfully or in bad

faith failed to comply with the alibi notice requirement; it merely

*! The O'Brien approach has also been adopted, with a slight

modification, in Matteo v. Superintendent, 171 F.3d 877, 891 (3d Cir.

1999), cert. denied, U.S. ,145L. Ed. 2d 62, 120S. Ct. 73 (1999).

It has also been applied in Lurie v. Wittner, 75 F. Supp. 2d 117

(S.D.N.Y. 1999); Chance v. Kupec, 1998 U.S. Dist. LEXIS 18997,

96 Civ. 2204(AHN), 1998 WL 846740 (D. Conn. Nov. 18, 1998);

Bragdon v. Warden, 1998 U.S. Dist. LEXIS 18998, 96 Civ.

1840(AHN), 1998 WL 846738 (D. Conn. Nov. 18, 1998).

53a

stated that there was no "acceptable reason" and, on that basis,

excluded the testimony. The court's error, therefore, does not lie

in its application of the Taylor standard to the particular facts of

this case; it lies in the fact that the court applied the wrong

standard. Similarly, the Appellate Division affirmed that error

while applying the wrong harmless error standard. The Lindh

approach, therefore, requires us to apply the “contrary to"

clause of § 2254(d). Moreover, both the trial court's and the

Appellate Division's decisions were erroneous because they

deviated from directly controlling decisions of the United States

Supreme Court. The trial court's ruling was contrary to 7 aylor,

the Appellate Division's was contrary to Chapman. The O'Brien

approach as well, therefore, would require us to apply the

“contrary to” clause. Because, for the reasons already stated, we

are convinced that the exclusion of Yamagata's testimony was

contrary to clearly established Federal law, Noble's petition is

granted on the ground that his conviction was obtained in

violation of the Compulsory Process Clause.

Il. INEFFECTIVE ASSISTANCE OF COUNSEL

A claim that one has been deprived of the effective assistance of

counsel, on the other hand, involves a mixed question of law and

fact. See Strickland v. Washington, 466 U.S. 668, 698, 80 L.

Ed. 2d 674, 104 S. Ct. 2052 (1984) (citation omitted); Ventura

v. Meachum, 957 F.2d 1048, 1055 (2d Cir. 1992) (citation

omitted). However, it is a mixed question of law and fact as to

which the Supreme Court has set forth a governing rule. While

the Lindh approach would, therefore, require us to apply the

deferential "unreasonable application" clause of § 2254(d)(1),

the O'Brien approach would lead us to ask whether the decision

_ Of the state court was contrary to the governing rule set forth in

Strickland. Nevertheless, we believe that a choice between those

two approaches is not necessary in this case. For the reasons set

forth below, we believe that the Appellate Division's application

-~

54a

of Strickland to this case was an unreasonable application.

Because we cannot conceive of how a decision can be an

unreasonable application of a rule but somehow be not contrary

to that rule, we conclude that under either approach a writ of

habeas corpus is warranted.

A. The Strickland Standard

To prevail on a claim of ineffective assistance of counsel, the

petitioner must show, first, that his counsel's performance at trial

"fell below an objective standard of reasonableness." Strickland,

466 U.S. at 688. In evaluating trial counsel's performance,

courts must be "deferential," making "every effort . . . to

eliminate the distorting effects of hindsight." Jd. at 689. The

"court must indulge a strong presumption that counsel's conduct

falls within the wide range of reasonable professional

assistance." Jd. As a result, "strategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable." Jd. at 690. Consequently,

"the fact that counsel is prepared and familiar with the relevant

facts and legal principles is usually sufficient to defeat a claim

that trial counsel was ineffective." Farrington v. Senkowski, 19

F. Supp. 2d 176, 179 (S.D.N.Y. 1998) (quoting United States

v. DiPaolo, 804 F.2d 225, 234 (2d Cir.1986)).

Secondly, if the Petitioner is able to show that his counsel's

performance fell below an objective standard of reasonableness,

he also must demonstrate that the performance caused him

substantial prejudice. See Strickland, 466 U.S. at 691

(explaining that petitioner must show that ineffectiveness had an

"effect on the judgment."). "The question is whether there is a

reasonable probability that, absent the errors, the factfinder

would have had a reasonable doubt respecting guilt." /d In

other words, counsel's errors must undermine our confidence in

the trial's outcome. /d.

55a

B. Noble's Counsel's Errors

In this case, Petitioner claims that his counsel was ineffective in

four particulars: he (1) failed to provide the government with a

notice of alibi defense; (2) failed to object to improper

statements made by the prosecutor; (3) failed to obtain the

testimony of Lt. Whalen; and (4) offered evidence for credibility

purposes when it should have been offered as substantive

evidence. The Appellate Division rejected Noble's argument on

direct appeal, explaining only that it believed the challenge was

a “simple disagreement with trial strategies and tactics." See

People v. Noble, 209 A.D.2d 735, 618 N.Y.S.2d 123, 124

(N.Y. App. Div. 1994). The court also stated that the alleged

errors did not amount to constitutionally defective

representations "when viewed in totality." Jd.

We believe that only one of counsel's alleged errors -- the failure

to file the alibi notice -- entitles the Petitioner to relief. The

other three errors are either unsupported by the record” or did

” For example, Noble claims that his lawyer offered

Yamagata's testimony about the Cat, Shaka, and Gary altercation for

impeachment rather than as substantive evidence. Although the court

seems to have excluded it on that basis, our review of the record

reveals several instances in which counsel clearly stated that he was

offering the evidence for substantive purposes. (See Tr. at 579, 580,

585, 593.) Similarly, the claim that counsel failed to object to

improper comments made by the prosecutor is belied by the fact that

counsel did object repeatedly. (See, e.g., id. at 870, 871, 877, 881,

885.) On a few occasions, those objections were sustained and

prompted curative instructions. (See, e.g., id at 881, 885.)

56a

not cause substantial prejudice.* With respect to the failure to

file the alibi notice, however, we simply do not see how any

reasonable jurist can attribute that failure to a strategic choice of

trial tactics. To be sure, "the decision . . . to pursue a particular

defense is a tactical choice," Franza v. Stinson, 58 F. Supp. 2d

124, 155 (S.D.N.Y. 1999), and there are numerous cases in

which courts have rejected federal habeas challenges alleging

that trial counsel failed to present alibi testimony, see, e.g.,

Lawson v. Caspari, 963 F.2d 1094, 1096 (8th Cir. 1992); Allah

v. Kelly, 32 F. Supp. 2d 592, 599 (W.D.N.Y. 1998); Nieves v.

Kelly, 990 F. Supp. 255, 264-65 (S.D.N.Y. 1997); Munoz v.

Keane, 777 F. Supp. 282, 288-89 (S.D.N.Y. 1991). But those

cases generally involved a decision not to pursue an alibi

defense, which the reviewing court finds to have been

reasonable. In this case, Noble's lawyer decided to pursue an

alibi defense, but was unable to present that defense because of

his misinterpretation of the governing discovery rules. In no

sense, can that failure be attributed to a strategic choice. The

decision made by Noble's trial counsel not to file an alibi notice

was based on counsel's belief that Yamagata's testimony did not

constitute an alibi -- a belief we are compelled to find to have

been erroneous, see supra at 256. Errors caused by counsel's

ignorance of the law are errors that run afoul of the objective

standard of reasonableness. See Kimmelman v. Morrison, 477

U.S. 365, 385, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986)

(rejecting argument that counsel's errors were strategic choices

because they were based on ignorance of the law). Although

research has not disclosed any New York cases that had been

3 Even if defense counsel's performance was objectively

unreasonable in failing to produce Lt. Whalen as a witness, that error

caused no prejudice since Nurse Hoar testified to the relevant

conversation that Whalen would have, presumably, described.

57a

decided as of the time of Noble's trial, which directly address

the question of whether the “scene of the crime" is defined by

the Indictment or by the Government's discovery responses, nor

any cases indicating that testimony that the accused was inside

a building when the crime occurred outside is an alibi, we

believe that the plain language of the statute”* would lead any

reasonably competent lawyer to err on the side of caution by

filing the requisite notice. Counsel's failure to do so here was

"outside the wide range of professionally competent assistance."

Strickland, 466 U.S. at 690.

Moreover, Noble clearly suffered substantial prejudice as a

result. As set forth above, see supra Part II(C), the prosecution's

contention that Melvin Walker testified to the same alibi is not

supported by the record and, even if it were, would be

inadequate in light of the strong challenges to Walker's

credibility that were made by the prosecution. We are unable to

conclude, as we must to find a lack of prejudice, that the trial

court's exclusion of Yamagata did not effect the verdict. That

exclusion, caused by trial counsel's misinterpretation of state

discovery rules, undermines our confidence in the verdict and,

therefore, leads us to conclude that the performance of Noble's

trial counsel was constitutionally deficient. Ineffective assistance

* At least one decision rendered after Noble's trial, People v.

Rosado, 153 Misc. 2d 477, 583 N.Y.S.2d 130 (N.Y. Sup. Ct. 1992),

reached the same conclusion as the trial court in this case, i.e., that

testimony that a defendant was inside a building when a crime

allegedly occurred outside the building constituted an alibi and

required notice, see 583 N.Y.S.2d at 131, but that a defendant's own

alibi testimony could not be stricken.

>> See supra note 7.

58a

of counsel, therefore, is an alternative ground for our decision

to grant Noble's petition and issue a writ of habeas corpus.

IV. PROSECUTORIAL MISCONDUCT

Petitioner cites four instances of prosecutorial misconduct that,

he alleges, deprived him of a fair trial. He claims that the

prosecutor (1) told the jury he was a member of a drug gang

without there being any basis in the record, (2) asked leading

questions, (3) stated his personal beliefs, and (4) disregarded the

court's instructions. Federal law applies to claims for

prosecutorial misconduct through the Due Process Clause. See

Donnelly v. DeChristoforo, 416 U.S. 637, 642, 40 L. Ed. 2d

431, 94S. Ct. 1868 (1974) (federal review of state prosecutors’

conduct is “the narrow one of due process, and not the broad

exercise of supervisory power that it would possess in regard to

its own trial court.") (internal quotation marks and citation

omitted); see also Tankleff v. Senkowski, 135 F.3d 235, 252 (2d

Cir. 1998) (“In order to grant relief, we would have to find that

the prosecutor's comments constituted more that mere trial

error, and were instead so egregious as to violate the defendant's

due process rights.") (citations omitted). To grant relief, then,

we must conclude that the Appellate Division's decision was an

“unreasonable application" of the Due Process Clause.

The Due Process Clause would justify habeas corpus relief due

to prosecutorial misconduct only if that misconduct was so

severe as to cause an unfair trial. See Donnelly v.

DeChristoforo, 416 U.S. 637, 642, 40 L. Ed. 2d 431, 94 S. Ct.

1868 (1974) ("not every trial error . . . constitutes a ‘failure to

observe that fundamental fairness essential to the very concept

of justice"); Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir.

1998) (petitioner “must show ‘that he suffered actual prejudice

because the prosecutor's comments during summation had a

substantial and injurious effect or influence in determining the

59a

jury's verdict.") (quoting Bentley v. Scully, 41 F.3d 81 8, 823 (2d

Cir. 1994)); United States v. Bautista, 23 F.3d 726, 732 (2d Cir.

1994) (explaining that petitioner must show misconduct and

“substantial prejudice") (citations omitted). After examining the

record, the Appellate Division concluded that the examples of

prosecutorial misconduct cited by Mr. Noble were not “so

pervasive and egregious as to deprive defendant of a fair trial.”

People v. Noble, 618 N.Y.S.2d at 124. We agree. The record

reveals numerous instances in which the trial court sustained

objections to the prosecutor's conduct and instructed the jury

appropriately. (See, e.g., Tr. at 116, 139, 143, 875, 885, 921.)

These kind of curative efforts made by the trial court are

generally sufficient to satisfy the Due Process Clause. See

Tankleff, 135 F.3d at 252. More specifically, one of the

examples of misconduct cited by the Petitioner Mr. Noble --

references to drugs without a basis in the record -- has been

reviewed by a federal court on at least two occasions and found

to not constitute a violation of due process. See Bossett v.

Walker, 41 F.3d 825, 829 (2d Cir. 1994); Bautista, 23 F.3d at

732. We do not conclude, therefore, that the Appellate

Division's conclusion was an “unreasonable application” of the

Due Process Clause, nor was it contrary to any governing rule

articulated by the Supreme Court.

CONCLUSION

Noble's petition for a writ of habeas corpus is granted on the

ground that the preclusion of exculpatory testimony violated the

Compulsory Process Clause and, in the alternative, on the

ground that defense counsel's failure to file notice of an alibi

defense deprived Noble of the effective assistance of counsel.

The petition is denied on the ground of prosecutorial

60a

misconduct.” Respondent is directed either to release the

Petitioner from custody or to retry him within 90 days of this

order. This order shall be stayed pending appeal, provided that

Respondent files a Notice of Appeal within 30 days of this

order.

SO ORDERED.

Dated: New York, New York

February 28, 2000

Leonard B. Sand

U.S.D.J.

2 We have reviewed Petitioner's additional claims and find

them to be without merit.

6la

Supreme Court, Appellate Division,

Third Department, New York.

The PEOPLE of the State of New York, Respondent,

v.

Casim NOBLE, Appellant.

Richard J. Haas, Swan Lake, for appellant

Stephen F. Lungen, Dist. Atty. (Bonnie M. Mitzner, of

counsel), Monticello, for respondent.

Before MIKOLL, J.P., and MERCURE, YESAWICH and

PETERS, JJ.

PETERS, Justice.

Appeal from a judgment of the County Court of Sullivan

County (Kane, J.), entered May 17, 1991, upon a verdict

convicting defendant of the crimes of attempted murder in the

second degree, criminal use of a firearm in the first degree (two

counts) and criminal possession of a weapon in the second

degree.

This is the last of a triune of appeals by three defendants

emanating from the shooting of Dwight Usher outside a bar in

Sullivan County in September 1989. All three were indicted and

jointly tried on charges of attempted murder in the second

degree, assault in the first degree, two counts of criminal use of

a firearm in the first degree, and criminal possession of a

weapon in the second degree. They were convicted on all

charges except assault in the first degree. In People v. Pittman,

189 A.D.2d 918, 592 N.Y.S.2d 812, lv. denied, 81 N.Y.2d 891,

597 N.Y.S.2d 953, 613 N.E.2d 985, and People v. Middleton,

62a

192 A.D.2d 740, 596 N.Y.S.2d 177, lv. denied, 83 N.Y.2d 913,

614 N.Y.S.2d 395, 637 N.E.2d 286, this court affirmed the

convictions of the codefendants. Here, defendant contends that

County Court erred in precluding one of his witnesses from

testifying that he was not a participant in the shooting because

he was inside the bar at the time, that he was denied effective

assistance of counsel and that prosecutorial misconduct denied

him a fair trial.

As to the preclusion of his witness from testifying,

defendant does not deny that he failed to serve the requisite CPL

250.20 notice of alibi, but he contends that the proffered

evidence was not alibi evidence as it did not seek to place him

at a location other than the scene of the crime. Even if we were

to find that County Court committed error when it precluded

this testimony, we conclude that such error would [209 A.D.2d

736] be harmless in view of the overwhelming evidence of guilt

(see, People v. Peralta, 127 A.D.2d 803, 512 N.Y.S.2d 201, Jv.

denied, 69 N.Y.2d 953, 516 N.Y.S.2d 1037, 509 N.E.2d 372,

People v. Ruiz, 159 A.D.2d 656, 553 N.Y.S.2d 173, lv. denied,

76 N.Y.2d 742, 558 N.Y.S.2d 904, 557 N.E.2d 1200; People

v. Bonomo, 47 A.D.2d 862, 366 N.Y.S.2d 42).

We find equally unpersuasive defendant's contention that he

was deprived of effective assistance of counsel. Defendant's

arguments that center on counsel's allegedly ineffective

performance are not substantiated in the record and do not

equate to ineffective assistance as we have already held in both

People v. Pittman (supra) and People v. Middleton (supra).

The wisdom of hindsight is always advantageous (see, People

v. Aiken, 45 N.Y.2d 394, 399, 408 N.Y.S.2d 444, 380 N.E.2d

272), but simple disagreement with trial strategies and tactics

does not prove ineffectiveness (see, People v. Wright, 206

A.D.2d 750, 614. N.Y.S.2d 818, 821). When viewed in totality,

as we must do, counsel's representation satisfied the well-

63a

established criteria set forth in People v. Baldi, 54 N.Y.2d 137,

444 N.Y.S.2d 893, 429 N.E.2d 400; see also, People v. Hope,

190 A.D.2d 958, 959, 594 N.Y.S.2d 360, Jv. denied, 81 N.Y.2d

972, 598 N.Y.S.2d 773, 615 N.E.2d 230.

Finally, we reject the allegation that prosecutorial

misconduct during trial and summation were so pervasive and

egregious as to deprive defendant of a fair trial (see, People v.

Gonzalez, 206 A.D.2d 946, 615 N.Y.S.2d *125. 191; People

v. Gutkaiss, 206 A.D.2d 628, 614 N.Y.S.2d 599).

ORDERED that the judgment is affirmed.

MIKOLL, J.P., and MERCURE and YESAWICH, JJ.,

concur.

64a

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF SULLIVAN

xX

THE PEOPLE OF THE STATE OF NEW YORK,

Plaintiff,

-against-

DERRICK PITTMAN, CASIM NOBLE and

RUFUS MIDDLETON,

Defendants.

March 18, 19, 1991

BEFORE:

The Honorable ANTHONY T. KANE

and a JURY.

Robert Hantman, C.S.R.

Courthouse

Monticello, New York 12701

(914) 794-4260 or 434-4404

65a

THE COURT: Okay. Are you ready?

MR. SCHULMAN: Mr. Flynn wants to call Steven

Yamagata as his next witness.

(Discussion off the record)

MR. LUNGEN: I think we are entitled to, at the very

least, some offer of proof before we get into the

collateral of another guy in Jail and his history.

THE COURT: Do you have a list of witnesses?

MR. FLYNN: It's on the —

THE COURT: The criminal history and prior bad acts?

MR. FLYNN: No convictions. He's in jail for criminal

possession of a controlled substance, and he was there

that night.

(Discussion off the record)

THE COURT: You're going to call Steven Yamagata

and he's going to testify to what?

MR. FLYNN: That he was there that night and he saw

the prior fight between Cat, Shaka and Gary, and that

he was inside the bar when he heard the shots, and he

was playing pool or some other game in there, and

Casim was playing the video game, and they both

exited the bar together.

THE COURT: Right. And why isn't that an alibi?

66a

MR. FLYNN: It's on the scene of the crime. It's 25

yards away.

THE COURT: The scene of the crime as 25 yards

away. The intent of that statute is to give notice that

one of the defendants claims to be in a location other

than —

MR. FLYNN: Heis ina location. Whether it's outside

or inside, it's 20 yards away. I'm not putting him in

New York City or anything.

MR. LUNGEN: An apartment A and Apartment B are

in the same location, this is as thick as the wall. That's

an alibi, my friend. Let the record reflect, I served alibi

notice on every defendant 15 days after arraignment.

It's been a year and a half, one year and half, there

hasn't even been as much as a response by any of the

defendants on alibi notices.

THE COURT: I saw the alibis in the files. To me, this

is an alibi, this is clearly an alibi. "I wasn't at the scene

of the shooting, I was somewhere else and I've got a

witness to place me there, and the somewhere else,

whether it be 20 feet away or a hundred feet away or

in the next county, is still somewhere else, and I've got

a witness to place me there."

MR. FLYNN: It's in the same vicinity as the bar.

THE COURT: It's behind a door and in a building, and

the action occurred or is alleged to have occurred out

in the parking lot. If you've got something that

indicates that that's anything but an alibi, I'll be happy

to hear about it.

67a

MR. FLYNN: The indictment says in the vicinity of the

Around the Corner Bar.

MR. LUNGEN: The statute requires, if I can read it,

250.20, within eight days after —

THE COURT: I know -

MR. LUNGEN: Reciting. Your response has to recite

A, the place or places the defendant claims to have

been at the time in question, and the names, residential

addresses of everyone on which it tends to rely, and it's

very clear the place or places that defendant claimed to

have been at the time of question. The time of

questioning 1s at the time of shooting at the Around the

Corner Bar, and they haven't responded. The Bill of

Particulars says it, the motion practice says it, the facts

Say it.

MR. FLYNN: Your remedies, you can have your three

days.

MR. LUNGEN: The case law also says in the Court's

discretion it can say no.

THE COURT: You can let me have that information

by tomorrow morning as to what — I understand your

argument.

Do you have anything else that would show that this is

not an alibi?

MR. FLYNN: Just part of the record, in the vicinity of

68a

THE COURT: All nght. Do you want to take a

couple minute about calling this next witness?

MR. SCHULMAN: Yes.

THE COURT: I'm not interested in three days. We've

been on trial for a day and a half.

(Discussion off the record)

(Court reconvened at 4:54 p.m.)

THE COURT: Mr. Flynn, as I indicated to you a few

minutes ago off the record, I reviewed the court file,

and it appears that there is in response to the 20-day

order signed with respect to your client, the response

was that the incident complained of in this case took

place in front of the Around the Corner Bar. "In front

of" is what it says, so be prepared to address the

question of alibi in the morning, I'll certainly hear what

you've got to say.

MR. FLYNN: For the record, the defendant contends

that alibi is elsewhere, and that he was not a distant

place from the bar, he was in the bar, only about 20

yards away, and that the notice was not necessary.

THE COURT: That's your position?

MR. FLYNN: Yes, Judge. And second is that we are

still calling Steven Yamagata, as far as testifying about

the earlier fight.

69a

March 19, 1991

(Court reconvened at 9:44 a.m.)

THE COURT: On the application for a severance

made by the defendants Pittman and Middleton, the

fact that one of the defendants may call a witness who

may present some evidence that may be harmful to one

or more of the defendants is not a basis for a

severance, and the Court will deny that application.

Mr. Flynn, I had indicated to you yesterday that I

would take any law that you wish to submit on the alibi

question?

MR. FLYNN: No, Judge. Everything was said on the

record.

MR. LUNGEN: Your Honor, you know my position.

There's case law that gives authority to the Court to

deny it. I haven't done extensive research, but real

quickly, a couple of Second Department cases, I can

cite those to the Court if it feels it needs them.

THE COURT: No. I've done some research on it also.

This Court will preclude giving testimony with respect

to the alibi. The record indicates that no notice was

served by the defense that they intended to produce an

alibi witness. The first that the People were advised of

their intention to call this witness was after the close of

the People's case yesterday.

The record further indicates, pursuant to the discovery

statements by the District Attorney in response to the

20-day order of the motion judge, that the scene of this

70a

crime was in front of the Around the Corner Bar. This

being the case, the testimony of this witness that the

defendant was inside the bar at the time of the shooting

is Clearly an alibi witness.

The Court is not satisfied that there is an acceptable

reason for not making this application sooner.

MR. FLYNN: Your Honor, we still intend to call Mr.

Yamagata. Before I put him on as a witness, I will

advise him that he is not to say anything about the

location of Casim during the shooting, because it might

slip out; so I will advise him, and you have my

assurance of that. But I'm calling him concerning

testimony of what went on that night before the

shooting.