Opinion
02 Civ. 2312 (LAK)(KNF).
August 30, 2006
REPORT and RECOMMENDATION
I. INTRODUCTION
Before the Court is Jose Garcia's ("Garcia") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Garcia contends that his confinement by New York state is unlawful because he received ineffective assistance from his trial counsel. In addition, Garcia maintains that he is actually innocent of the crime for which he was convicted, murder in the second degree. According to Garcia, because evidence that would have established his innocence, by showing that he was in the Dominican Republic at the time the murder took place, was not fully presented at trial, his counsel's performance was deficient under the constitutional standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). Moreover, Garcia contends, there is a reasonable probability that, but for his counsel's ineffectiveness, he would not have been convicted.See id. at 694, 2068. As a consequence, he maintains, the state court's denial, without a hearing, of his motion to vacate the judgment of conviction, see New York Criminal Procedural Law ("CPL") § 440.10, on the ground of, inter alia, ineffective assistance of trial counsel, was "contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). Therefore, Garcia contends, he is entitled to habeas corpus relief.
The respondents oppose the petition. They contend that Garcia has not established that: (a) he is actually innocent of the crime for which he was convicted; or (b) his trial counsel was ineffective.
II. BACKGROUND
Garcia was convicted for the second-degree murder of Cesar Vasquez ("Vasquez"). The murder took place at approximately 11:45 p.m. on the night of July 16, 1991.
Garcia contends that on July 15, 1991, he was detained at La Union International Airport in Puerto Plata, Dominican Republic, and placed under arrest by the National Police for attempting to leave the Dominican Republic with false papers. Garcia contends that he was jailed overnight and released late on the following day, July 16, 1991, after his wife, Ana Ortega ("Ortega") posted his bail. Garcia contends that, later that night, while he was staying at the home of his mother-in-law, Isabel Filpo, a neighbor, Alsacia Encarnacion ("Encarnacion"), came to the home and reported that she had received a telephone call intended for Garcia from a woman in the United States who claimed that her brother had been murdered. Garcia contends that after he learned of Vasquez's murder, he tried to return to the United States to determine the circumstances surrounding Vasquez's death. Garcia maintains that, because he did not possess legal documentation to travel to the United States, he again procured false documents in an attempt to return to this country. However, petitioner was arrested in California on August 2, 1991, for attempting to enter the country illegally. Shortly thereafter, he was arrested for the murder of Vasquez.
A. Notice of Alibi
On February 18, 1992, prior to the commencement of trial, petitioner's trial counsel, Jorge Guttlein, Esq. ("Guttlein"), submitted an Amended Notice of Alibi ("alibi notice") informing the trial court and the prosecution that Garcia "intend[ed] to offer a defense at trial of this action that at the time of the commission of the crime charged in the indictment he was someplace other than the scene of the crime, to wit: In the custody of the Policia Nacional de la Republica on a[n] immigration and naturalization detainer." The alibi notice states further that, in support of his alibi defense, Garcia intended to present to the court: (1) documents concerning his arrest in California on August 2, 1991, for attempting to enter the United States illegally with false documents; (2) reports from the Dominican national police concerning his incarceration during the relevant time period on July 16, 1991, for seeking to leave the Dominican Republic with false papers; (3) the testimony of Gabriella Pena ("Pena") regarding Garcia's departure to the Dominican Republic on June 22, 1991; and (4) the testimony of Ortega regarding Garcia's incarceration in the Dominican Republic.
B. The Trial 1. Opening Statement
In his opening statement to the jury, trial counsel emphasized the weakness of the prosecution's case. Among other things, trial counsel suggested to the jury that the prosecution's main witness, a woman who claimed to have seen the murder, had been influenced by the prosecution to accuse Garcia. Trial counsel made no mention of an alibi defense.
2. Colloquy Concerning Documents
In December 1992, during a colloquy held between the trial judge and the attorneys for the parties, Guttlein introduced the issue of the admission of the documents that were attached to the alibi notice. The documents, which were submitted to the Court in connection with the instant petition, include: (a) a form reflecting Garcia's release on bail on July 16, 1991; (b) a certification of the form; (c) a certification of the certification by an official of the Dominican State Department; and (d) a certification by a United States Embassy official of the signature and seal of the official of the Dominican State Department.
Guttlein argued that the documents were admissible into evidence because they were original records from the Dominican Republic with a certification from the Vice Consul of the United States in the Dominican Republic. The prosecution refused to consent to the admission of the documents. According to the prosecutor, assuming that the documents showed that Garcia was incarcerated in the Dominican Republic on July 15, 1991, the day before the murder, and released from custody on the afternoon of July 16, 1991, the day of the murder, they still would not constitute an alibi because they contained no reference to the actual time of the shooting. He stated:
It is not farfetched at all, if we are going to assume just for a moment, that [Garcia] was down in the Dominican Republic on that date, that he could have obtained a plane, which is a three and a half hour direct flight to [John F. Kennedy International Airport], he would have landed in Queens at approximately 7:40 that night, giving him approximately four and a half hours to drive around the city or do whatever he did, before he found himself [at the scene of the crime], so my contention is that the alibi doesn't cover the time of the shooting.
Guttlein reasserted his contention that the documents "should be admitted since they are clearly certified by the consulate. . . ." In response, the trial judge indicated that defense counsel should brief the issue of the admissibility of the documents because he found the documentary evidence concerning Garcia's presence in the Dominican Republic to be "very unusual." Guttlien elected not to brief the issue and the documents, which he did not offer again, were not admitted.
3. Testimony of Penny Denor
Penny Denor ("Denor") was the only testifying eyewitness to the murder. She stated that on the night of the murder, July 16, 1991, she was looking out of a bedroom window of her apartment at 2820 Bailey Avenue in Bronx County, New York, for her son who had not come home for dinner. Denor testified that she saw her son directly under her window and a blue vehicle double parked nearby. Denor stated that she saw three men, the driver and two passengers, get out of the vehicle; all of the men had handguns. Fearing for her son's safety, Denor ran down the stairs and into the courtyard of her building, where she saw a body lying on the ground. Denor, who stated that she had previously heard five gunshots, saw the men return to the blue vehicle and drive away.
When questioned about the men she had seen, Denor stated that she looked at the face of the driver, at his gun, and back at his face, and also at the face and clothing of the front-seat passenger. She stated that the passenger wore "a very flowery shirt . . . very outstanding shirt." Denor made an in-court identification of Garcia as the front-seat passenger.
Denor also testified that she had been present at a lineup approximately five months after the murder. She said she initially identified someone other than number five as the individual in the lineup whom she recognized. Immediately upon leaving the room, however, she said she had told the detective assigned to the case that she had identified the wrong person, and implied that she had been afraid to identify the person she actually recognized because a defense lawyer had been present. Denor told the detective that she knew all along that the person she recognized had been the individual in the number five position.
Denor testified that at the time of the murder, she was taking Valium, a prescription drug, that she had taken the medication at approximately nine o'clock on the night of the murder and that its affect on her was to "keep [her] quiet." On cross-examination, Denor testified that she was now taking another medication, Thorazine, for severe depression, and that she saw a psychiatrist regularly. When Denor denied that Valium made her sleepy, Guttlein pointed out that she had testified under oath at a previous proceeding that Valium did make her sleepy.
Guttlein also brought out other inconsistencies in Denor's testimony. For example, he elicited testimony from her that although she testified on direct that the individual she initially identified at the lineup was in the number four position, she had testified at a previous hearing that the person was in the number two position. Guttlein also brought out that Denor had testified at a previous proceeding that it was the driver and not a passenger who had worn the flowered shirt. Additionally, Guttlein established that the police officer in the anti-crime unit who responded to the 911 call the night of the murder had testified that he had notes from an interview of Denor on the night of the murder and that she then had described the assailants as three black men wearing hooded sweatshirts with no mention of a flowered shirt.
4. Testimony of Detective Pezzullo
Anthony Pezzullo, a detective employed by the New York City Police Department who was on duty on the night of the Vasquez murder, testified that he was sent to 2820 Baily Avenue, in the Bronx, on the night of July 16, 1991, after his office was notified of a homicide at that address. Det. Pezzullo testified that when he arrived he spoke to another police officer, observed the victim and then interviewed witnesses, including Denor and her son. Det. Pezzullo testified that during his investigation, he received information about an individual named "Cujo." Thereafter, Det. Pezzullo was contacted by an undercover narcotics agent and, based on the information he received from the agent, he identified "Cujo" as the nickname of Garcia.
Detective Pezzullo testified that he took Denor to a lineup in December 1991, and, on that occasion, Garcia was the individual in the number five position. He also made an in-court identification of Garcia.
5. Testimony of Griselda Vasquez
The defense presented one witness, Griselda Vasquez, the sister of the victim. Griselda Vasquez testified that on the night of July 16, 1991, she was sitting with her children in her apartment at 2820 Bailey Avenue, in the Bronx, when she heard several shots. She looked out of the window of her apartment and saw a man getting into a vehicle. She then went to another window, looked out, and saw her brother lying on the ground in the courtyard of the building. She stated that the man she had seen getting into the vehicle had first thrown a bag onto the seat and had then driven away as "if he had just finished doing something; like a rat, he was like trying to get away like he had done something."
When she realized that her brother had been shot, she ran downstairs to the courtyard. She stated that she saw no one on the stairs and that she was screaming as she ran. Later that night, she made several telephone calls, to her mother and others. When asked to identify Garcia, Griselda Vasquez stated that she knew him, that he was her brother's friend, and that she had not seen him outside her window on the night of the murder. She stated that she had spoken to Garcia on the night of the murder and that he was then in the Dominican Republic. However, on cross-examination, the prosecution established that she had no personal knowledge that Garcia was in the Dominican Republic because she did not dial the telephone herself but, rather, had it "handed over" to her by someone else.
6. Testimony of Edmundo Vargas
After the defense presented its witness, the prosecution called Edmundo Vargas ("Vargas"), a neighbor of Griselda Vasquez, to rebut her testimony. Vargas stated that he had seen Griselda Vasquez on the stairs on the night of the murder and that he had heard her speaking to her mother, contradicting her statement that she had seen no one on the stairs and that her mother was not in the country at the time.
7. Closing Statement
In his closing statement, trial counsel urged the jury to acquit Garcia. He stressed the defense's position that Denor's testimony was unreliable and that it was unlikely that the victim's sister, Griselda Vasquez, would fail to identify Garcia as the shooter if she knew that he had committed the crime. Only one reference was made to Garcia's alibi defense: trial counsel referred, briefly, to Griselda Vasquez's testimony that she had spoken to Garcia on the night of the murder and that he was then in the Dominican Republic.
On January 8, 1993, Garcia was convicted in New York State Supreme Court, Bronx County, for murder in the second degree,see N.Y. Penal Law § 125.25, and sentenced to an indeterminate term of imprisonment of twenty-five years to life. C. State Post Conviction Proceedings
The New York State Supreme Court, Appellate Division, First Department unanimously affirmed the conviction on September 26, 1995. See People v. Garcia, 219 A.D.2d 541, 632 N.Y.S.2d 62 (App.Div. 1st Dep't 1995). The New York Court of Appeals denied Garcia's application for leave to appeal on April 4, 1996.See People v. Garcia, 88 N.Y.2d 847, 644 N.Y.S.2d 694 (1996).
On November 26, 1997, the petitioner applied to the Appellate Division for a writ of error coram nobis vacating its decision on the ground of ineffective assistance of appellate counsel. That motion was denied on July 23, 1998.
Thereafter, in August 2000, petitioner filed a motion to vacate the judgment of conviction pursuant to CPL § 440.10, arguing, among other things, that he had received ineffective assistance of trial counsel. Petitioner claimed that counsel was ineffective because, inter alia, he failed to interview or present alibi witnesses at trial and to obtain documentary evidence in support of petitioner's alibi defense. Petitioner cited evidence that was available at the time of trial but was not pursued or investigated including official documents subsequently procured from the Dominican Republic tending to establish that petitioner was in the Dominican Republic at the relevant time and affidavits of alibi witnesses setting forth personal knowledge of petitioner's presence in the Dominican Republic on the night of the murder and their availability to testify at the time of trial.
The motion to vacate the judgment of conviction was denied by the New York State Supreme Court, Bronx County, on December 7, 2000. In a handwritten opinion, the court ruled:
Evidence submitted does not tend to establish defendant's alibi. A review of the trial record fails to substantiate allegations of ineffective assistance of counsel. No other argument presented has demonstrated a sufficient basis to consider any further review.
The Appellate Division denied petitioner's application for leave to appeal on August 9, 2001.
D. Federal Habeas Corpus Proceedings 1. The Petition
On May 10, 1999, Garcia filed his "first" petition for a writ of habeas corpus, raising no claims but, instead, seeking an extension of the time in which to file an application for habeas corpus relief. The respondents' motion to dismiss the petition as untimely was granted on March 3, 2000. See Garcia v. Portuondo, No. 99 Civ. 4519, 2000 WL 246407, at *1 (S.D.N.Y. Mar. 3, 2000).
In April 2002, Garcia sought leave to file a second or successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b). Garcia stated that his first petition "was not a habeas action" but, rather, a request for an extension of time. Garcia also asserted three grounds for habeas corpus relief: (i) his actual innocence of the offense for which he was convicted; (ii)Brady violations; and (iii) ineffective assistance of trial counsel.
Under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), the prosecution is obligated to disclose to a criminal defendant exculpatory information which is known to be material to a defendant's guilt or punishment. The defendant is denied due process of law if the prosecution suppresses such material.
The Court of Appeals for the Second Circuit denied the application for a second petition as unnecessary because the initial petition, which was dismissed as untimely, had not been decided on the merits. See Garcia v. Portuondo, No. 02 Civ 3551 (2d Cir. May 7, 2002). The court ordered the matter remanded to the district court for a consideration on the merits of the petitioner's claims. Id.
Garcia's case was reopened in the district court in June 2002, and the respondents were directed to serve and file an answer to his petition. The assigned district judge denied the respondents' motion to dismiss the petition as time-barred, finding that "the running of the AEDPA statute of limitations is equitably tolled in the exceedingly rare case in which [as in the case at bar] the petitioner makes out a credible claim of actual innocence."Garcia v. Portuondo, 334 F. Supp. 2d 446, 462 (S.D.N.Y. 2004). The case was then referred to the undersigned for a consideration of the merits of the petitioner's claims.
By order dated September 13, 2004, counsel was appointed to represent the petitioner in this matter. Thereafter, petitioner was represented by the law firm Willkie Farr Gallagher LLP ("Willkie Farr"). Through his counsel, petitioner submitted a memorandum of law in support of the instant petition reiterating his claims of ineffective assistance of counsel and actual innocence and asking the Court to hold an evidentiary hearing to examine these claims. Petitioner's application for an evidentiary hearing was granted and a hearing was held on May 3, 4, 5, 6, 9 and 13, 2005. The respondents' request to reopen the evidentiary hearing to receive the testimony of an additional witness was granted, and the hearing was continued and concluded on November 9, 2005. 2. The Hearing
In the memorandum of law prepared by his appointed counsel in support of his habeas corpus petition, Garcia did not press his claim of Brady violations. Consequently, the claim is not addressed in this report.
Thirteen witnesses testified at the hearing held in May and November 2005. A summary of their testimony is presented below.
a. Testimony of Jorge Guttlein
Guttlein, petitioner's trial counsel, submitted an affidavit in connection with petitioner's application for habeas corpus relief. At the evidentiary hearing, the parties agreed that Guttlein's affidavit would stand as the major portion of his direct testimony. In his affidavit, Guttlein stated that he believed at the time of Garcia's trial, and continued to believe, that Garcia was in the Dominican Republic at the time of Vasquez's murder and that his conviction was "a terrible miscarriage of justice." Guttlien stated that none of his decisions about the conduct of Garcia's defense was motivated by a belief that Garcia was guilty.
Guttlein stated that he had been asked to represent Garcia by members of his family including his brother, Jorge Garcia, whom Guttlein had represented in connection with charges of drug trafficking. As part of his preparation of Garcia's defense, he asked Jorge Garcia and other members of the family to obtain documentary evidence of Garcia's arrest in the Dominican Republic on the day before the murder and his incarceration until the day of the murder. The documents they obtained were those that had been attached to the alibi notice.
Guttlein stated that he believed the documents would be admitted into evidence at the trial, although he did not recall conducting any legal research on the issue. He had never attempted to introduce such documents in a criminal case, but had previously succeeded in having similar documents admitted into evidence in immigration proceedings. He believed the documents would either establish that Garcia could not have committed the murder, so that the trial judge would dismiss the case at the close of the evidence, or that they would raise such serious doubts that the jury would acquit Garcia. Guttlein stated that, because he believed that the documents were "such powerful evidence, [he] did not spend a great deal of time preparing for trial in other ways."
Guttlien stated that he was "surprised and dismayed" when the trial judge indicated on December 14, 1992, that he was not inclined to admit the documents into evidence. According to Guttlein, "[a]lthough the trial judge invited my co-counsel and me to brief the admissibility of the [documents], we did not do so because we believed the judge had made up his mind and that we were unlikely to find unambiguous law that would cause him to change his mind." Guttlein also believed that Garcia had a strong likelihood of acquittal because the prosecution's case rested on the testimony of a single eyewitness whose credibility could be attacked successfully. Guttlein stated that he did not make any further attempt to document Garcia's arrest, incarceration and ultimate release from jail in the Dominican Republic, nor did he attempt to determine if there were witnesses or documents available that would corroborate Garcia's defense that he was in the Dominican Republic at the time of the murder. He stated that he did not recall whether his reason for not conducting further investigation in the Dominican Republic was cost, insufficiency of time, his belief that any such evidence was unnecessary because of the weakness of the prosecution's case, or a combination of these factors. In any case, he stated, he was not motivated by a belief or suspicion that Garcia had not in fact been in the Dominican Republic at the time of the murder.
In response to questioning by petitioner's counsel, Guttlein stated that, at the time of Garcia's trial in 1992 and 1993, he had available to him certain Spanish language documents which had been translated into English by a paralegal who was then employed by Guttlein. The documents, which were attached as exhibits to petitioner's motion to vacate the judgment of conviction, included: (1) the sworn statement of an official of the Department of Migration at the International Airport of Puerto Plata, dated July 15, 1991, stating that Garcia (his personal identification number is given) was detained and placed under custody by the National Police for trying to leave the country bearing an American Passport belonging to Ferdinand Caraballo; (2) the sworn statement of a First Lieutenant in the Forgery Investigation Section of the National Police to the Assistant Legal Counsel of the Puerto Plata National Police, reporting on a judicial complaint against Garcia, dated July 16, 1991, for attempting to leave the country illegally on American Airlines flight number 664; (3) the sworn statement of a Second Lieutenant in the National Police attesting to the complaint, along with the certification of a fourth official of the National Police as to its authenticity.
Guttlein also stated in his affidavit that "[a]lthough I knew that Ortega, her mother, and other witnesses were prepared to testify that Garcia was in the Dominican Republic at the time of the murder, and although I believed this testimony to be truthful, I did not interview Ortega at length about the events of the day of the murder, did not speak to her mother or to other witnesses who also placed Garcia in the Dominican Republic, and did not explore ways in which the testimony of any of these witnesses might be corroborated." Guttlein also stated that he encouraged the prosecutor at trial to speak with Pena because he believed that her information would help to corroborate Garcia's alibi. He stated that he did not call Pena as a witness because he was aware that she could not testify from personal knowledge that Garcia was in the Dominican Republic at the time of the murder, and because he was concerned that Pena might give testimony about other illegal activities in which Garcia was alleged to have been involved.
On cross-examination, Guttlein stated that he had previously served as an Assistant United States Attorney, had practiced immigration and criminal law, and, at the time of Garcia's trial, had performed approximately ten or fifteen criminal trials per year over a period of six or seven years. He testified that he had never met Garcia until he represented him. When asked whether he had made a zealous effort to represent Garcia, Guttlein stated that he "[t]ried the best [he] could." Guttlein affirmed that he had submitted pretrial and post trial motions in an effort to defend Garcia's rights. Guttlein stated that he believed the eyewitness's identification of Garcia had been influenced by the district attorney or by the detectives in his office during their investigation of the homicide. Consequently, he attempted to show during questioning of the eyewitness that she had no recollection of who shot Vasquez.
Guttlein stated that Ortega would often appear in court during the trial and that he would discuss the case with her on occasion. Guttlein stated that in 1992 and 1993, the only people he was aware of who might provide alibi testimony were Ortega and Pena. Concerning his attempt to have the documents supporting the alibi defense admitted, Guttlein stated that it was a "tremendous strain" to get documents from the Dominican Republic, which he believed had been a corrupt country for a long time. When asked whether he believed the detectives who had investigated Vasquez's murder had targeted the Garcia brothers, Guttlein stated that he did, although he had no evidence of this "except experience and my suppositions."
Concerning Garcia's alibi, Guttlein stated: "[T]his is not a complicated alibi, he was in jail. . . . That was what I knew and that's what everybody said and there was never any doubt or anybody telling me . . . let's say this and let's do this. . . . It was just common knowledge he wasn't here. He had problems with Ana [Ortega]."
b. Testimony of Ana Ortega
Ortega stated that she first met Garcia in 1978, that they were married in the Dominican Republic in June 1987, and that Garcia was the father of her four children. After the birth of their first child, in 1988, Garcia traveled to the United States. After discovering that Garcia was having an affair with Pena, Ortega filed for divorce; the divorce became final in 1988. Ortega went to the United States for the first time in August 1989, while she was pregnant with her second child by Garcia. The child was born in October 1989.
In March or April 1991, Ortega returned to Matanzas, her hometown in the Dominican Republic, after failing to persuade Garcia to separate from Pena. Garcia followed her on June 22, 1991, in an attempt to repair their relationship. On that occasion, Garcia traveled under the name Ferdinand Caraballo.
Ortega testified that, on July 10, 1991, a neighbor and relative named Australia Sanchez, who was known in her community as Nina, passed away. Her death was followed by a nine-day mourning period. Ortega and Garcia attended the burial the day after Nina's death, several of the prayer services for Nina and the mass on the final day of the mourning period. The prayer sessions were held early in the evening, from around 6:00 p.m. to 9:00 p.m., at Nina's home, which was a short distance from Ortega's. Many friends and relatives attended the prayer sessions.
Garcia told Ortega that he wished to return to the United States and planned to leave on July 15, 1991. Ortega, who was then pregnant with their third child, told him that, if he left, it would be the end of their relationship. However, she agreed to accompany Garcia to the airport in Puerto Plata, to which they were driven by a friend of Ortega's named Luisito. As she was leaving the airport, Ortega was told by a stranger that Garcia had been unable to leave the Dominican Republic, but Ortega did not stay to discover whether this was true and instead went home. That night, while at the prayer service for Nina, Ortega was visited by a police officer who informed her that Garcia had been arrested at the airport with a false passport and was being detained.
Ortega went to the airport the next morning, again driven by Luisito. Before leaving, she told her mother that she might need money for Garcia's bail. In Puerto Plata she went to the police station; there she was told to go to the courthouse, where a court appointed lawyer offered her his services. He explained that bail for Garcia's release would be in the amount of 10,000 Dominican Republic pesos, of which she would need to pay 2,500 pesos. Ortega had only 950 pesos with her and, therefore, sent Luisito to Matanzas to obtain money; he returned with around 2,000 pesos. Ortega gave the money to the lawyer, who paid the bail and obtained a document with which Ortega was able to obtain Garcia's release from the detention center.
Ortega testified that Garcia was released from custody between 3:30 and 4:00 p.m. on July 16, 1991, and that they returned to Matanzas. That evening they went to the prayer service where they spoke to many people from the community. Later that night, after they went to bed, they were awakened by a knocking on the window. Ortega got up and saw that it was her friend, Encarnacion, who often received telephone messages for Ortega on her telephone. Encarnacion informed her that she had received a call for Garcia from New York, and that someone had been killed there.
Garcia and Ortega traveled to Encarnacion's home where Garcia called Griselda Vasquez, the sister of the deceased. About two weeks later, around July 25, 1991, Garcia arranged to obtain travel documents that would enable him to return to New York; shortly thereafter, he left for Panama. The next time Ortega heard from him was when he was arrested in Los Angeles in August 1991.
Ortega returned to the United States in December 1991, after being told by Garcia's sister that Garcia had been charged with the murder of Vasquez. Ortega then participated in the effort to retain Guttlein to represent Garcia, initially paying him $2,000, and later paying him $3,000. Ortega testified that she had brought the money with her from the Dominican Republic. Ortega stated that she told Guttlein that Garcia was in the Dominican Republic on the day of the murder and gave him the names of people besides herself who could testify to that fact, including her mother, Isabel Filpo, her cousins, Leonora Filpo, Christian Filpo, and Alicia Burgos, and her friend, Encarnacion.
At Guttlein's request, Ortega sought to obtain documents that would establish Garcia's alibi. Ortega asked her stepfather, who was returning to the Dominican Republic, to obtain the documents from the courthouse in Puerto Plata. Her stepfather returned several months later with the documents Ortega had requested. The documents, described above, were the sworn statements of three different Dominican police officers, one certified by a fourth Dominican official, describing Garcia's arrest on July 15, 1991, for attempting to travel on the passport of Ferdinand Caraballo, his detention and his presentment on a complaint on July 16, 1991. Ortega testified that she gave the documents to Guttlein prior to trial.
Ortega testified that she attended Garcia's trial almost every day, discussed the case with Guttlein at the time, and asked him why he had failed to call her or others as alibi witnesses. Ortega testified that Guttlein told her that she would not be believed because she was Garcia's wife, and, similarly, her mother would not be believed because she was Garcia's mother-in-law. Ortega stated that she asked Guttlein why he did not call the other individuals Ortega had mentioned and that Guttlein replied, "We'll see about that later on."
Ortega testified about the appeal process, stating that she contacted the court appointed attorney, John H. Wilson, in July 1995. Ortega testified that she informed him that there were witnesses who had seen Garcia in the Dominican Republic on the day of the murder.
Ortega stated that, in 1996, she collected affidavits from witnesses who had seen Garcia in the Dominican Republic on July 16, 1991. She stated that she herself had written down the witnesses' statements and then had taken them to an office to be typed and translated into English. Thereafter, each affiant signed his or her statement and the statements were notarized. A second set of affidavits was obtained in 2000, using the same method. The affiants are Ortega, Isabel Filpo, Leonora Filpo, Christian Filpo and Encarnacion.
c. Testimony of Isabel Filpo
Isabel Filpo, the mother of Ortega and the mother-in-law of the petitioner, testified that Garcia stayed in her home in Matanzas, along with Ortega and their children, during June and July 1991. She stated that she attended most of the prayer sessions for Nina, who was her neighbor and relative by marriage.
On July 15, 1991, she left the prayer session early because she was nervous about Garcia's detention at the airport in Puerto Plata. Before leaving for the airport the following day, Ortega asked her to obtain money to pay for Garcia's bail; later, Isabel Filpo gave about 2,000 Dominican Republic pesos to two assistants of Ortega's driver, Luisito, and they took the money to Ortega. She stated that she had obtained the money from her father.
She stated that Ortega and Garcia returned to her house around 5:30 p.m. or 6:00 p.m. on July 16, 1991. At around midnight, she was awakened by the sound of someone knocking at the window of her home. She learned that it was a friend of Ortega's, who had come to inform Garcia that a woman named Griselda had called from New York to tell them that someone had been murdered. Isabel Filpo was very concerned because she had relatives in New York. She waited for Ortega and Garcia to return in order to find out what had happened.
She testified that Garcia stayed in her home until the end of July or beginning of August and then left the country. During the period that Garcia was on trial, Isabel Filpo lived with Ortega in an apartment in the Bronx, close to the courthouse. She watched Ortega's children while Ortega attended the trial. She never spoke to Guttlein directly but, through Ortega, informed him that she was available to testify along with other witnesses concerning Garcia's presence in the Dominican Republic on the night of the murder.
d. Testimony of Alsacia Encarnacion
Encarnacion testified that she met Ortega and Garcia in 1989 or 1990. She testified that she last saw Garcia at a mass held on the last day of the mourning period following the death of Nina. Encarnacion stated that she did not know Nina personally but attended the mass because of her friendship with Ortega. She stated that, before that day, she had last seen Garcia on the night that she received a telephone call for him from Griselda Vasquez. Encarnacion explained that she sometimes allowed Ortega and Garcia to use her telephone to make and receive calls in the Dominican Republic because Ortega did not have a telephone in her house in Matanzas. Encarnacion speculated that the call was received on July 15 or 16, 1991, at around midnight. She stated that she took a taxi to Ortega's house and, when no one answered the door, knocked on the window. She stated that Ortega and Garcia followed her to her house in their car and Garcia then made the call to Griselda Vasquez.
Encarnacion stated that she attended Garcia's trial once and offered to testify regarding his whereabouts on the night of the murder. However, because she was not required on the day that she attended the trial, she left without testifying. Encarnacion identified the affidavit bearing her signature, dated 1997, attesting to the events about which she had testified. She stated that she had prepared the affidavit in her own home because she was ill at the time, and that Ortega and an attorney or notary had come to her home to obtain her signature on the document. She also identified the affidavit, dated 2000, bearing her signature and attesting to her willingness to be an alibi witness for Garcia.
e. Testimony of Leonora Filpo
Leonora Filpo, a cousin of Ortega's, testified that the last time she saw Garcia was in July 1991. She testified that she saw Garcia at several of the prayer sessions following the death of Nina. She stated that she had signed two written statements in connection with Garcia's case, the first in 1996, and the second in 2000, and identified the documents she had signed. Regarding the 1996 affidavit, which she signed as Leonora Pabon, her married name at the time, she stated that while the document was in English, which she did not understand and could not read, she had been willing to sign it after it was read to her in Spanish by two different people.
f. Testimony of Christian Filpo
Christian Filpo, a relative of Ortega's, testified that he lived in Matanzas in the Dominican Republic in 1991. He testified that he recalled attending the burial of Nina and, in particular, traveling to the ceremony in a bus. He stated that he recalled seeing Garcia on the bus helping people to find their seats. He stated that he was 15 or 16 years old at the time.
g. Testimony of Alicia Burgos
Alicia Burgos testified that she was a cousin of Ortega's and had resided in Manhattan since 1977. She stated that she had been a United States citizen for six or seven years and that the last time she saw Garcia was at prayers for Nina, an aunt of her mother's. She stated that she attended the prayers in June or July of 1991 and that when she saw Ortega they exchanged words of greeting. She recalled that her aunt had told her that Garcia had gone to the airport in Puerto Plata but had been unable to leave the country.
She stated that she never saw Garcia again but inquired about him at the time and was told that he was still in the Dominican Republic. She stated that she never spoke to an attorney about Garcia's case, but became involved when she happened to be visiting Isabel Filpo. According to Alicia Burgos, Isabel Filpo stated on that occasion that she hoped Garcia would be "let out soon" so that he could help Ortega care for their children. She stated that she realized then that she had been at the prayer sessions for Nina, had seen him there, and could help him by testifying to that effect. She stated that her conversation with Isabel Filpo had taken place about six months earlier, at the time Garcia obtained counsel for the instant proceeding.
h. Testimony of Isaias del Carmen Burgos
Isaias del Carmen Burgos, the sister of Alicia Burgos and a cousin of Ortega's, testified that she lived in the Dominican Republic until four years earlier when she moved to New York. She stated that she had last seen Garcia on July 16, 1991, at the time of the death of Nina. She stated that she remembered the occasion because it was her "saint day," that is, St. Carmen's day, and so was special to her.
She testified that she became aware of Garcia's incarceration when she was visiting Isabel Filpo and Ortega a few months earlier. She stated that when she learned what happened to Garcia she called it a "mistake" and said that Garcia could not have been in New York at the time of the murder unless "they could split [Garcia] up the middle."
I. Testimony of Jose Garcia
The petitioner testified that he purchased a ticket under the name of Ferdinand Caraballo on June 21, 1991, at a travel agency in the Bronx, and traveled to Puerto Plata from New York on June 22, 1991. In order to travel under the name Ferdinand Caraballo, petitioner obtained an American passport belonging to a Puerto Rican man and then grafted his photograph onto it.
Petitioner stated that his return ticket was dated July 18, 1991, but after he arrived in the Dominican Republic, he changed the date of his return to the United States to July 15, 1991. On that day, petitioner attempted to leave the Dominican Republic, but was detained in the airport in Puerto Plata. Petitioner testified that, after it was discovered that he was using a false passport, he was interrogated and then turned over to the ministry of justice and brought to the police headquarters. Petitioner stated that he was placed in isolation and then questioned again about how he had obtained the passport. He stated that he was detained until about 3:30 p.m. or 4:00 pm. on July 16, 1991.
After he was released from custody on July 16, 1991, he found Ortega waiting for him, along with two other men. They traveled to Matanzas where they showered and then went to the prayer session that was being held on that day. Later, he heard someone knocking on the window; it was a friend of Ortega's, Encarnacion, who had come to tell him that she had received a phone call for him and that "something happened." Garcia stated that he was very nervous as he got dressed and followed the woman by car to her house. There, he made a call and learned that "they had killed a friend of mine [named Cesar Vasquez]."
Garcia stated that between the time that he received the call and the end of July he did not leave the Dominican Republic because he was unable to do so; then, at the end of July, he was able to obtain documents that would enable him to travel to Panama. When he arrived in Panama, he arranged to buy Panamanian documents for entry into the United States. In August 1991, he traveled to California; there, the immigration officials detected his false papers and arrested him.
On cross-examination, the respondents' counsel suggested that there were at least two inconsistencies in Garcia's testimony on direct examination. First, he noted that the ticket in the name of Ferdinand Caraballo appeared to have been purchased on June 17, not June 21, 1991, as Garcia had stated, and that, contrary to Garcia's testimony, it was paid for with an American Express card, not with cash. Further, respondents' counsel noted that, on previous occasions, for example, in petitioner's state court motion to vacate the judgment of conviction, made pursuant to CPL § 440.10, Garcia had stated that on July 16, 1991, he was released from custody at 2:00 p.m., rather than at 3:30 p.m. or 4:00 p.m. Respondents' counsel also noted that none of the documents that was presented as an exhibit at the instant hearing had been included with petitioner's CPL § 440.10 motion or with any other prior submission.
Garcia stated that his motion papers had been prepared by a law clerk in a correctional facility and, to the extent the papers contradicted his current testimony, it was the fault of the law clerk. Garcia acknowledged that he had not previously mentioned the prayer sessions for Nina in any of his submissions to state or federal court. On redirect examination, Garcia stated that he had not previously presented some of the documents submitted in connection with the instant petition because he was told they would not have "legal weight." Garcia also explained that many of the documents had been translated into English, which he did not read fluently. Therefore, he was unable to determine whether they had been prepared accurately.
j. Testimony of Gabriella Pena
Pena, a former girlfriend of Garcia's and the mother of one of his children, testified that she had last spoken to Garcia in 1993 or 1994, and had not attempted to contact him since then. She stated that she had maintained a relationship with Garcia until the summer of 1991.
At the time of Vasquez's murder, Pena was in Fort Myers, Florida, under what she described as a "witness protection" program arranged by the Bronx District Attorney's Office, in connection with her testimony in an unrelated murder trial.
Pena stated that she spoke to Garcia once while she was staying in Fort Myers, several days before Vasquez's murder. Pena stated that she had called Garcia at his mother's home in San Cristobal, Dominican Republic, because she needed money in order to buy diapers for their son. Garcia had agreed to send her money by way of Pena's mother, who lived in Bronx County, New York. A few days later, Pena called her mother to learn whether the money had arrived; it was at that time that her mother informed her that Vasquez had been murdered.
The next time Pena spoke to Garcia was in August 1991, when she received a collect call from him at her mother's house. Garcia informed her that he had been detained by immigration officials in Los Angeles as he attempted to enter the country illegally from Panama. Garcia called her every day and sometimes twice a day over the next month. Pena stated that in their first conversation, Garcia told her about his arrest in Puerto Plata on July 15, 1991. Pena stated that, according to Garcia, he was arrested on that day, "because he was with false documents . . . and he was there for quite a while, a few — not a few hours, a lot, I think it was a day, the next day or the following day he came out, and then he had been trying to get over back from the Dominican Republic to New York State, the United States, and then that's how we also spoke [about] the days he was in Panama and all that."
Pena denied that the first time Garcia told her about his arrest in Puerto Plata was after she told him that he was the subject of an investigation into the murder of Vasquez, and affirmed that she learned about the arrest earlier, when she first spoke to Garcia after his arrival in California. Pena affirmed that she was in Florida when she heard about the murder of Vasquez. She stated that she knew that Vasquez was Garcia's friend and "right hand man" in a drug operation and that if she had testified at the trial of Garcia, she would have said that he was drug dealer.
k. Testimony of Stephen Vogel
Stephen Vogel ("Vogel"), an associate at Willkie Farr who assisted in the representation of Garcia, testified that he traveled to the Dominican Republic in March 2005, along with Matthew Bosher ("Bosher"), who is also an associate at Willkie Farr, and Oswald Cruz ("Cruz"), a Spanish interpreter. Vogel testified that he, Bosher and Cruz had three purposes in traveling to the Dominican Republic: (1) to meet with any potential alibi witnesses; (2) to look for documents relating to the arrest and release of Garcia in July 1991, and (3) to "see for ourselves where these events occurred." l. Petitioner's Other Evidence
In connection with the evidentiary hearing, petitioner noted that the parties had stipulated to certain facts that would have been the subject of testimony of Bosher, Bosher, while in the Dominican Republic on March 31, 2005, visited the Puerto Plata police station and requested to see any documents maintained in the building relating to the arrest of Garcia on July 15, 1991. The clerk in the records department showed him a document dated July 15, 1991, containing the name of Garcia followed immediately by the number 51917-02.
Additionally, an airline ticket purchased on June 21, 1991, and obtained from Anabella Tours in the Bronx, was admitted into evidence. The document shows that a man using the name of Ferdinand Carabello purchased a ticket for travel from John F. Kennedy ("JFK") International Airport to Puerto Plata, Dominican Republic, on June 22, 1991, on American Airlines flight number 611. The return flight was scheduled from Puerto Plata to JFK International Airport on July 18, 1991, on American Airlines flight number 664. In addition, the Court took judicial notice that St. Carmen's Day occurs on July 16.
m. Testimony of Yuderka Vargas
Yuderka Vargas, a notary public, testified on behalf of the respondents. She confirmed that she had notarized Ortega's affidavit in 2000, Encarnacion's affidavit in 1997 and 2000, and Leonora Filpo's affidavit in 2000. Vargas also testified regarding her practices as a notary and typist; she stated that it was never her practice to perform notarial services outside of her office and that she did not believe that she had typed any of the affidavits which she notarized. Respondents noted that this evidence conflicted with the testimony of Ortega and Encarnacion concerning the location at which Encarnacion's 1997 affidavit was notarized. Both women had testified that it was prepared and notarized at Encarnacion's apartment by an unidentified notary and her assistant.
n. Testimony of Petitioner's Appellate Counsel, John H. Wilson
On November 9, 2005, the evidentiary hearing held in connection with the instant petition was reopened to receive the testimony of John H. Wilson, a Judge of the Civil Court of the City of New York assigned to the Criminal Court of the City of New York, Kings County, who served as Garcia's appellate counsel and whom the parties were unable to locate previously. The hearing was reopened for the limited purpose of receiving testimonial evidence from Judge Wilson that was germane to the matters discussed in the pertinent motion papers.
In his affidavit submitted in connection with the instant proceedings, Judge Wilson stated that, in June 1993, he was assigned by the Supreme Court, Appellate Division, First Department pursuant to County Law 18-b, to represent petitioner in the appeal of his conviction.
On July 12, 2005, Judge Wilson reviewed the file maintained during his representation of petitioner. Judge Wilson asserted that there was no indication that he ever met with any relatives, friends or associates of Garcia or any other party on his behalf. Judge Wilson stated that he knew this because there was no notation in his file concerning such a meeting or meetings and he had no recollection of a meeting or correspondence.
Judge Wilson stated that no one in his office ever called Ortega but she appeared at his office in January 1995, and spoke with Juan San Pedro, Judge Wilson's former law partner. At the hearing, Judge Wilson testified concerning certain documents in his file. Among these was a photocopy of the airline ticket purchased on June 22, 1991 in the name of Ferdinand Caraballo. A note written by San Pedro on the photocopy stated: "[Ortega] stopped by in re Jose Garcia appeal. Defendant's wife [Ortega] said the defendant was incarcerated in Dominican Republic the day before this homicide went down in the Bronx. She says that the Santo Domingo record[s] state that the defendant was released from jail over there at about 3:00 pm. The day of the Bronx homicide defendant was arrested in Santiago Domingo. The defendant was arrested in Santo Domingo for using a fake name. See above. The defendant's wife stated that she was not allowed to testify at trial. The defendant was in jail until 3:00 p.m. in Santo Domingo the day of Bronx homicide."
Judge Wilson acknowledged that a letter he had received from Garcia in June 1993 discussed an alibi defense at some length, and that he had not responded to the letter until January 1995 at which time he stated that he would need more evidence to establish Garcia's claimed alibi. Judge Wilson denied ever having received Garcia's letter dated January 20, 1995, in which Garcia stated that he believed his trial lawyer was ineffective, noted Judge Wilson's opinion that trial counsel was competent, informed Judge Wilson that Ortega could provide him with the names of alibi witnesses, and requested that Judge Wilson help him "clear up the fact" that he was in the Dominican Republic on the night of July 16, 1991, with Ortega, Isabel Filpo and his children.
o. Exhibits
The following documents, submitted as exhibits by the parties, were received into evidence at the hearing: (1) pretrial omnibus motion prepared by Guttlein; (2) pretrial motion to dismiss the indictment prepared by Guttlein; (3) post-trial motion to dismiss the indictment prepared by Guttlein; (4) photograph of Ortega's house in Matanzas, Santiago, Dominican Republic; (5) photograph of Nina's house in Matanzas, Santiago, Dominican Republic; (6) photograph of the police station in Puerto Plata, Dominican Republic; (7) affidavits, dated April 2005, of Dario Filpo and Nazarena Filpo, attesting to Garcia's presence in the Dominican Republic on July 16, 1991; (8) affidavit, dated April 2005, of Franklin Filpo, attesting to Garcia's presence in the Dominican Republic on July 16, 1991; (9) affidavit of Ana Delia Filpo, dated April 2005, attesting to Garcia's presence in the Dominican Republic in July 1991; (10) affidavit of Jose D. Burgos, dated April 2005, attesting to Garcia's presence in the Dominican Republic in July 1991; (11) photograph of Ortega and Garcia on the day of their wedding; (12) contract between Ortega and Guttlein setting forth Ortega's financial obligations in connection with Guttlein's representation of Garcia; (13) stipulation dated May 6, 2005; (14) identification card of Garcia, marriage certificate of Ortega and Garcia, and birth certificate of Garcia; (15) photocopy copy of airline ticket sold by Anabella Tours, Inc. on June 21, 1991, in the name Ferdinand Caraballo for American Airlines flight number 611 from New York to Puerto Plata on June 22, 1991, returning on American Airlines flight number 664 on July 18, 1991; (16) the declaration of the president of Anabella Tours, Inc., a travel agency located in Bronx County, New York, that the agency's copy of the airline ticket sold on June 21, 1991, was a record provided to Vogel, maintained in the records of the agency, made at or near the time of its occurrence and made during the regularly conducted activity of the agency; (17) photographs of the typewriter belonging to Yuderka Vargas; (18) the file of documents assembled and maintained by Garcia's appellate counsel at the time of his direct appeal; (19) a letter from Garcia, written in Spanish and addressed to Judge Wilson, dated January 20, 1995, stating Garcia's belief that his trial lawyer was ineffective, noting Judge Wilson's opinion that trial counsel was competent, informing Judge Wilson that Ortega could provide him with the names of alibi witnesses, and a request that Judge Wilson help him "clear up the fact" that he was in the Dominican Republic on the night of July 16, 1991, with Ortega, Isabel Filpo and his children; and (20) an English translation of the letter of January 20, 1995.
3. Evidentiary Ruling
At the time of the evidentiary hearing, Garcia requested that the Court receive in evidence pursuant to Fed.R.Evid. 803(8) or, alternatively, Fed.R.Evid. 807, a June 10, 2004 "certification of Jose Ramon Mancebo ("Mancebo"), Second Lieutenant N.P. Inspector, Department of Central Record of Investigations, Region North, Puerto Plata, Dominican Republic. Garcia also requested that the Court receive in evidence the November 20, 1996 "certification" of Mary Francisco ("Francisco"), internal secretary of the Civil Penal Chamber of the Jury of the first instance of the judicial district of Puerto Plata, Dominican Republic, pursuant to Fed.R.Evid. 803(8) or, alternatively, Fed.R.Evid. 807. The respondents opposed the application and the Court reserved decision.
Thereafter, by order dated August 30, 2006, the Court denied Garcia's requests. The Court declined to receive in evidence the Mancebo certification, pursuant to Fed.R. Evid 803(8), because it was not properly authenticated, as required by Fed.R.Civ.P. 44(a)(2), and thus lacked trustworthiness. The Court also determined not to receive the Mancebo certification in evidence pursuant to Fed.R.Evid. 807. Similarly, the Court declined to receive in evidence the Francisco certification, finding that it, too, was not authenticated in accordance with Fed.R.Civ.P. 44(a)(2) and, therefore, was not admissible pursuant to Fed.R.Evid. 803(8). The Court also denied Garcia's request that the Francisco certification be received in evidence pursuant to Fed.R.Evid. 807.
III. DISCUSSION
A. Standard of ReviewWhere a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: 1) was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. See 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to" clearly established Supreme Court precedent if "the state court applies a rule that contradicts" Supreme Court precedent or if "the state court confronts a set of facts that are materially indistinguishable from a decision of the [Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams, 529 U.S. at 405-06, 120 S. Ct. at 1519-20. A state court decision involves an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 407-08, 1520-21. A federal habeas court applying the "unreasonable application" standard should ask whether the state court's application of Supreme Court precedent was "objectively unreasonable" and not merely an incorrect or erroneous application of federal law. Id. at 409, 1521; see also Francis S., 221 F.3d at 111 (holding that to permit habeas relief under an "unreasonable application" standard, more is required than an incorrect application of federal law, although the "increment of incorrectness" need not be great).
"A state court adjudicates a petitioner's federal claims on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment." Howard v. Walker, 406 F.3d 114, 122 (2d Cir. 2005) (quoting Norde v. Keane, 294 F.3d 401, 410 [2d Cir. 2002]) (internal quotation marks omitted). Further, to decide a claim on the merits, a "state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required." Eze v. Senkowski, 321 F.3d 110, 122 (2d Cir. 2003) (quoting Aparicio v. Artuz, 269 F.3d 78, 93-94 [2d Cir. 2001]) (internal quotation marks omitted).
In this case, Garcia alerted the trial court to the federal nature of his claim by citing Strickland in his pro se motion to vacate the judgment of conviction, made pursuant to CPL § 440.10. Thus, the trial court was apprised of the governing federal law when it rejected Garcia's ineffective assistance of counsel claim. The trial court disposed of the claim on substantive grounds, finding that "[a] review of the trial record fails to substantiate allegations of ineffective assistance of counsel." Hence, the trial court adjudicated Garcia's ineffective assistance of counsel claim on the merits.
Where a petitioner challenges his conviction based on ineffective assistance of counsel, the question is whether the state court unreasonably applied Strickland. See Williams, 529 U.S. at 390, 120 S. Ct. at 1511; Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001). The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland, 466 U.S. at 686, 104 S. Ct. at 2063. To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id. at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 2068. In order to establish prejudice, a defendant must prove that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id.; see also Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066. Moreover, strategic choices made by counsel after a complete investigation of the relevant law and facts are "virtually unchallengeable."Id. However, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91, 2066. Hence, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 2066; see also Gersten, 426 F.3d at 607. "In assessing the reasonableness of an attorney's investigation . . . a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510, 527, 123 S. Ct. 2527, 2538 (2003).
In evaluating the prejudice component of the Strickland test, a court looks to the "cumulative weight of error in order to determine whether the prejudice reaches the constitutional threshold." Harris v. Artuz, 288 F. Supp. 2d 247, 256 (E.D.N.Y. 2003) (quoting Lindstadt, 239 F.3d at 202) (internal quotation marks omitted). Furthermore, "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Id. (quotingStrickland, 466 U.S. at 696, 104 S. Ct. 2052).
When, as in the case at bar, "a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's ultimate decision was an 'unreasonable application' of clearly established Supreme Court precedent." Eze, 321 F.3d at 125 (quoting Sellan v. Kuhlman, 261 F.3d 303, 311-12 [2d Cir. 2001]) (internal quotation marks omitted); see also Serrano v. Fischer, 412 F.3d 292, 297 (2d Cir. 2005) (noting that where state court summarily rejects claim on the merits without explanation, habeas court must focus on state court's ultimate decision, rather than its reasoning). Therefore, in this case, it is appropriate for the Court to review Garcia's counsel's performance at trial and ascertain whether the trial court's decision was reasonable underStrickland. B. Actual Innocence
"Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400, 113 S. Ct. 853, 860 (1993). "This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact." Id.
As the petitioner recognizes, because a claim of actual innocence, standing alone, is not cognizable on habeas corpus review, whether he actually killed Vasquez on the night of July 16, 1991, is not directly at issue in this proceeding. Rather, as noted above, the direct issue is whether the state court's denial of petitioner's CPL § 440.10 motion to vacate the judgment of conviction — in particular, his claim of ineffective assistance of counsel — was a reasonable application of Strickland. Petitioner suggests, however, that what actually happened on the night of July 16, 1991, is of indirect relevance to the petition because, among other things, the "adversary system assumes a high degree of correlation between the truth and the evidence that effective, motivated counsel are able to present at trial." Petitioner contends, moreover, that the available evidence overwhelmingly supports his actual innocence claim.
The respondents agree that whether petitioner is actually innocent of Vasquez's murder is relevant to this proceeding. They argue, however, that petitioner has failed to provide reliable or credible evidence in support of his claim of actual innocence.
As set forth below, the Court finds that petitioner has demonstrated "an independent constitutional violation occurring in the underlying state criminal proceeding," that is, ineffective assistance of trial counsel and, hence, that the state court's denial of his motion to vacate the judgment of conviction was not a reasonable application of Strickland. Accordingly, while the Court has taken note of the arguments on both sides of the issue to the extent that they are relevant to a consideration of petitioner's application for habeas corpus relief, it does not reach the question whether Garcia has shown that he is actually innocent of the crime for which he was convicted.
C. Ineffective Assistance of Counsel 1. Trial Counsel's Performance
Trial counsel's performance was constitutionally deficient in several respects. Although trial counsel firmly believed that Garcia was in the Dominican Republic at the time of the murder, he failed to present to the jury at trial documentary and testimonial evidence available to him at the time that would have supported Garcia's claimed alibi. Specifically, trial counsel failed to present either documentary evidence attesting to Garcia's presence in the Dominican Republic, even though he possessed documents that potentially were admissible at trial, or testimonial evidence, even though he had been informed of the availability of corroborating witnesses. Moreover, trial counsel failed to conduct an adequate pretrial investigation of additional sources of such evidence, or to make a reasonable judgment that no investigation was necessary.
a. Documentary Evidence
The record shows that, at the time of trial, Guttlein had in his possession at least two sets of documents attesting to Garcia's presence in the Dominican Republic on July 15 and 16, 1991. One set consisted of the documents submitted with the alibi notice, that is, a bail bond document showing that Garcia had been released at an unspecified time on July 16, 1991, in Puerto Plata after posting bail of 10,000 Dominican Republic pesos, certifications by Dominican officials and a certification of the final Dominican signature by the United States Embassy.
A second set of documents consisted of the sworn statements of three Dominican police officers, one certified by a fourth Dominican official, describing Garcia's arrest on July 15, 1991, for attempting to travel on the passport of Ferdinand Caraballo, his detention and his presentment on a complaint on July 16, 1991. One of these documents lists Garcia's national identity number, two list the flight he was attempting to board (American Airlines Flight 664), and all three list the name (Ferdinand Caraballo) and passport number of the fictitious passport he was trying to use. Ortega testified at the hearing that these documents were obtained by her stepfather and given, by her, to Guttlein prior to trial.
Trial counsel also possessed a document obtained by Ortega at the Puerto Plata courthouse on July 16, 1991, which, according to petitioner, could have been admitted through her testimony without resort to certification procedures. However, Garcia is identified in this document by a different surname; hence, its significance as an alibi document is open to question.
Further, it appears that the airline ticket petitioner used to travel to the Dominican Republic under the name Ferdinand Caraballo on June 22, 1991, also was available at the time of trial. At the hearing held in this court, Garcia testified that he had given a copy of the airline ticket to Guttlein prior to trial. Respondents have suggested that this document, among others, was recently fabricated by petitioner and, thus, could not have been available to trial counsel. However, respondent's argument is undermined by the appearance of the document in the file that was assembled by Garcia's appellate counsel, Judge Wilson, during Garcia's appeal proceedings. The appearance of the airline ticket in Judge Wilson's file shows that it existed in or around 1995, the year in which Garcia perfected his appeal, and lends credibility to Garcia's claim that he possessed the document in 1991 and provided it to Guttlein prior to trial. Moreover, Judge Wilson's copy of the ticket, which contains the handwritten note of his former law partner, San Pedro, to the effect that he had received a visit from Ortega, that she had spoken to him about Garcia's incarceration and release, and that she had not been allowed to testify at trial, corroborates Ortega's testimony regarding her communications with Guttlein at the time of trial.
As noted above, the airline ticket in the name of Ferdinand Caraballo was submitted to the Court at the hearing by both the petitioner and the respondents. Respondents' submission is part of the file maintained by Judge Wilson during the prosecution of Garcia's appeal. Petitioner also submitted a copy of a receipt for the ticket attached to the declaration of the president of Anabella Tours, Inc., a travel agency located in Bronx County; the declaration attests that the airline ticket receipt was maintained in the agency's records and provided to Vogel after a search of those records, and was made during the regularly conducted activity of the agency.
The record shows that trial counsel made an initial attempt to have the first set of documents received into evidence, by attaching them to the alibi notice and by presenting oral argument concerning their admission during the December 1992 colloquy before the trial judge. However, when that initial attempt proved unsuccessful, Guttlein simply abandoned altogether any effort to establish Garcia's alibi by this method. Thus, he never prepared or filed a brief on the issue of the documents' admissibility, although invited by the trial judge to do so. As a result of this lapse, the trial judge never ruled that the documents were not admissible. As Guttlein acknowledged in his affidavit prepared in connection with the case at bar, "[a]lthough the trial judge invited my co-counsel and me to brief the admissibility of the [documents], we did not do so because we believed the judge had made up his mind and that we were unlikely to find unambiguous law that would cause him to change his mind."
Further, Guttlein did not conduct any legal research on the issue of the admissibility of the documents, even though he had never attempted to introduce documents of that type in a criminal case, and in spite of his belief that the documents constituted "such powerful evidence" that the case would be dismissed on the strength of them or, at the least, that they would raise such serious doubts about Garcia's guilt that the jury would acquit him. Indeed, because Guttlein believed that the documents were "such powerful evidence, [he] did not spend a great deal of time preparing for trial in other ways."
Moreover, there is no indication in the record that Guttlein ever attempted to have the airline ticket in the name of Ferdinand Caraballo received into evidence at trial. This document, especially if accompanied by the attestation, described above, of the president of the travel agency that issued the ticket, likely would have been admitted into evidence without the difficulties that attended upon documents originating in the Dominican Republic. While not sufficient by itself to establish Garcia's claimed alibi, the airline ticket would have lent support to Garcia's claim that he had traveled to the Dominican Republic in June 1991, and that he had traveled under the name Ferdinand Caraballo.
Furthermore, it does not appear that Guttlein fulfilled his obligation to conduct an investigation that might have led to the discovery of other alibi documents. The record shows that Guttlein never went, nor did he send an investigator, to the Dominican Republic prior to trial in an effort to obtain police or other records attesting to Garcia's arrest and incarceration that may have been available at that time. Instead, Guttlein relied on Garcia's family and Ortega to obtain and provide such records. In addition, no investigation was conducted concerning relevant travel documents or documentary evidence of telephone calls between the petitioner while he was in the Dominican Republic and Griselda Vasquez, Pena and perhaps others. In his affidavit, Guttlein acknowledged that his failure to conduct an investigation of pertinent documentary evidence was not the result of a reasonable judgment that such investigation was unnecessary. Rather, as he stated in his affidavit:
Apart from the [documents] obtained by Garcia's family, I did not make any other efforts to document Garcia's arrest, incarceration, and ultimate release from jail in the Dominican Republic, nor did I attempt to determine if there were witnesses or documents available in the Dominican Republic who could corroborate Garcia's defense that he was in the Dominican Republic at the time of the murder. I do not now recall whether my reason for not conducting further investigation in the Dominican Republic was cost, insufficiency of time, my belief that any such evidence was unnecessary because of the weakness of the government's case, or a combination of these factors.
The duty to investigate exists regardless of trial counsel's confidence that the jury will view the prosecution's case as weak. See Pavel v. Hollins, 261 F.3d 210, 226-28 (2d Cir. 2001). Additionally, trial counsel is not excused from conducting an adequate investigation merely on the basis of the cost of such investigation. See Thomas v. Kuhlman, 255 F. Supp. 2d 99, 110-112 (E.D.N.Y. 2003) ("Having accepted the responsibility of representing a criminal defendant, counsel owes a duty to his client that will on occasion require him to make financial outlays that might be considered unfair for an ordinary businessman who, unlike a licensed attorney, has not voluntarily adopted an enhanced ethical obligation to society.").
Although trial counsel did not recall exactly why he had failed to conduct an investigation into the existence of alibi documents, he stated unequivocally that his reason for not doing so was not "a belief or suspicion that Garcia had not, in fact, been in the Dominican Republic at the time of the murder, because I believed that he had been." In light of his avowed belief in his client's innocence, and the "quantum of evidence" known to him at the time of trial, counsel's failure to investigate further was not reasonable.
The respondents' contention that, since petitioner still has not supplied any admissible evidence to establish that it was he who was arrested in the Dominican Republic on July 15, 1991, trial counsel was not remiss in failing to further investigate the existence of alibi documents is not sound. While it remains an open question whether any alibi documents could have been introduced into evidence successfully during the trial, there can be no doubt that Guttlein was not in a position to know this since he failed to research the issue or to attempt to obtain additional documentation once he concluded that the trial judge had "made up his mind" concerning their admissibility.
Respondents also contend that Guttlein's failure to adduce legal authority in support of the admission of documentation supporting Garcia's claimed alibi did not render his assistance ineffective because, even if Guttlein had briefed the issue, he still would have "lost the legal argument." In support of this contention, respondents cite pertinent provisions of New York's Civil Practice Law and Rules, the United States Code, and the Federal Rules of Civil Procedure, as well as relevant case law.
The matter of the admissibility, under state or federal law, of the documents submitted by counsel at the time of trial is not before the Court on the instant petition. However, given the extent of the legal authority available on this issue, as set forth by the respondents, it appears that petitioner's defense may have benefitted from pertinent research with a view to presenting the relevant legal arguments. Whether, as respondents' maintain, petitioner would have lost those arguments in any case cannot now be determined, but there can be no doubt that trial counsel neglected his duty as counsel to the petitioner by failing even to take up the trial court's challenge to prepare a brief.
Respondents contend further that, even if it could have been established that petitioner was the subject of the documents in question, this would not have precluded a finding of guilt because the documents did not encompass the time the crime was committed. However, even if the only documents presented at trial were those describing petitioner's arrest on July 15, 1991, and his release sometime during the afternoon of the following day, a compelling argument could have been made that it was unlikely that petitioner had succeeded in boarding another flight to New York in time to commit the murder of Vasquez. Moreover, taken together with testimonial evidence of Garcia's presence in the Dominican Republic on the night of July 16, 1991, and for a period of weeks thereafter, the documents describing his arrest and detention on July 15, 1991, would have contributed substantially to establishing his claimed alibi. See Garcia, 334 F. Supp. 2d at 455 ("The fact that petitioner was in jail in another country hours before the murder, especially when considered with all of the other alibi evidence, argues strongly against his participation in the murder, even without knowing whether he could have made the plane to New York.").
As petitioner notes, respondents' suggestion that Garcia flew to New York on July 16, 1991, killed Vasquez, and then returned to the Dominican Republic "makes no sense." It is unlikely that Garcia would have been able to obtain new travel documents in the little time available to him or, if he was able to obtain false papers, that he would have been able to get past the same guards at the same checkpoint at the airport in Puerto Plata the day after he had been arrested for traveling with false papers. Furthermore, if Garcia did travel to New York on July 16, 1991, it is doubtful that he would have returned to the Dominican Republic and then attempted to reenter the United States in early August by way of Panama and Los Angeles, when he had successfully navigated the route from Puerto Plata to New York two weeks earlier.
Thus, viewing counsel's failure to marshal the documentary evidence of Garcia's presence in the Dominican Republic at the time of the murder, or to conduct an adequate pretrial investigation with respect to this aspect of Garcia's alibi defense, from counsel's perspective at the time of trial, and applying considerable deference to counsel's judgment, the Court finds that counsel's performance fell below an objective standard of reasonableness as determined by prevailing professional norms.
b. Alibi Witnesses
Trial counsel's performance was also deficient with respect to the introduction of the testimony of alibi witnesses. The alibi notice prepared by Guttlein prior to trial indicates that he was aware of at least two potential alibi witnesses, Ortega and Pena. Further, as Ortega testified at the hearing in this court, she provided to Guttlein the names of at least four other individuals who could testify concerning Garcia's presence in the Dominican Republic on the night of the murder and thereafter, including her mother, Isabel Filpo, Leonora Filpo, Alicia Burgos and Encarnacion. Indeed, Guttlein conceded this point in his affidavit:
As Guttlein noted in his hearing testimony, Pena's appearance as a witness might well have been problematic. She could not testify from personal knowledge that Garcia was in the Dominican Republic on July 16, 1991, and it is likely she would have mentioned Garcia's drug trafficking activities.
Isabel Filpo testified at the hearing that, while she never spoke to Guttlein directly, she informed him, through Ortega, that she was available to testify at trial. Encarnacion testified that she attended the trial on one occasion and offered to testify about Garcia's presence in the Dominican Republic on the night of the murder, but was told that her testimony was not needed. Leonora Filpo testified that she spoke frequently to Isabel Filpo during the trial but was never asked to appear as a witness. Alicia Burgos testified that she was in New York at the time of the trial but was not asked to appear as a witness.
Although I knew that Ortega, her mother, and other witnesses were prepared to testify that Garcia was in the Dominican Republic at the time of the murder, and although I believed this testimony to be truthful, I did not interview Ortega at length about the events of the day of the murder, did not speak to her mother or to other witnesses who also placed Garcia in the Dominican Republic, and did not explore ways in which the testimony of any of these witnesses might be corroborated.
In addition, no attempt was made to investigate the availability of other potential witnesses or to obtain corroborating evidence in the Dominican Republic.
Trial counsel is not obligated to present each and every witness that is suggested to him. See Pavel, 261 F.3d at 220. However, in this case, in view of the testimony that the alibi witnesses would have offered, and in view of the fact that Guttlein knew of the nature of this testimony before trial, his decision not to call the alibi witnesses was a significant error.
In his affidavit, Guttlein stated that his decision not to call any alibi witnesses was the result in part of his belief that the prosecution's case against Garcia was weak. However, Guttlein decided his theory of the case before conducting an adequate investigation into an alternative defense or deciding that no investigation was necessary. There is no reasonable trial strategy that would have excluded at least conducting interviews of the alibi witnesses to determine whether they could provide exculpatory evidence. See Newton v. Coombe, No. 95 Civ. 9437, 2001 WL 799846, at *5 (S.D.N.Y. July 13, 2001) ("[N]o lawyer could make a 'strategic' decision not to interview witnesses thoroughly, because such preparation is necessary in order to know whether the testimony they could provide would help or hinder his client's case, and thus is prerequisite to making any strategic decisions at all."); Gersten, 426 F.3d at 609-610 (finding that defense counsel's purported "strategic decision" was not reasonable because counsel "settled on a defense theory and cut off further investigation of other theories without having first conducted any investigation whatsoever").
Respondents argue that Guttlein's strategy, that is, to advance the alibi known to him by offering the documents in his possession rather than by offering the interested testimony of petitioner's family members, was sound. Certainly, the credibility of the alibi witnesses would have been a consideration in the preparation and presentation of an alibi defense. It is reasonable to suppose that Ortega, as petitioner's wife, and Isabel Filpo, as his mother-in-law, would have had reason to lie to protect the petitioner. However, Ortega's testimony would have provided a detailed account of the events of July and August 1991, and, thus, a basis for corroborating testimony from less interested witnesses. Additionally, the testimony of Isabel Filpo at the hearing in this Court suggests that she would have been able to provide a credible account of her recollection of the events on the night of the murder. Such testimony, even from a family member, would have reinforced Garcia's alibi. Encarnacion does not appear to be a relative of Garcia's or Ortega's and her testimony would have provided additional corroboration of the testimony of Griselda Vasquez concerning the telephone call to Garcia on the night of the murder. Leonora Filpo, Christian Filpo and Alicia Burgos, as cousins of Ortega's, were related to Garcia only by marriage and, as such, did not have a significant motive to commit perjury.
The respondents also suggest that the witnesses submitted "blatantly perjurious affidavits alleging that various relatives of petitioner's wife were mere neighbors of petitioner [and that] this false allegation of disinterested witnesses was the linchpin to Judge Kaplan's preliminary finding . . . that petitioner made a credible claim of actual innocence." However, as petitioner notes, no affiant denied his or her actual connection to Ortega and, given that Ortega and Garcia are legally divorced, whether they could be considered related to Garcia is a matter of interpretation. In any case, there is no evidence in the record that the affiants deliberately attempted to mislead the court.
Viewing trial counsel's failure to present the testimony of available alibi witnesses, or to conduct an adequate pretrial investigation into the existence of other witnesses who could support Garcia's alibi defense, from counsel's perspective at the time of trial, the Court finds that counsel's performance did not meet the Strickland standard for effective assistance of counsel.
c. Performance at Trial
Trial counsel did not perform incompetently in every respect. For example, he made numerous objections throughout all the witnesses' testimony, repeatedly moved for a mistrial, and vigorously cross-examined Denor, exposing several inconsistencies in her testimony. However, trial counsel's failure to make any mention of an alibi defense in his opening statement or to present any documentary or testimonial evidence of such a defense rendered counsel's assistance, on balance, ineffective. See Harris, 288 F. Supp. 2d at 256 (citing Eze, 321 F.3d at 112) ("Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others.").
Additionally, in his examination of the only defense witness, Griselda Vasquez, trial counsel failed to develop the details of her conversation with Garcia on the night of the murder or to prepare her for cross-examination, in which the prosecutor was able to suggest that, because she had not made the call to the Dominican Republic herself, she had no basis for her belief that Garcia was in that country at the time she spoke to him. Hence, although trial counsel mentioned Griselda Vasquez's testimony in his summation, this single reference to petitioner's presence in the Dominican Republic at the relevant time was not sufficient to alert the jury to petitioner's alibi defense.
2. Prejudice
At trial, the jury heard nothing of Garcia's alibi defense until the final day of testimony when, as noted above, the jury heard testimony from a single uncorroborated witness whose credibility was attacked by the prosecution and who was unable to articulate a basis for her belief that Garcia was in the Dominican Republic when she spoke to him by telephone on the night of July 16, 1991. Thereafter, the jury heard only a brief reference to this testimony during trial counsel's closing statement.
The jury heard no evidence that petitioner could claim to have been in the Dominican Republic until at least the day of the murder, that this could be documented, and that multiple witnesses with no connection to Garcia's drug activities or any other illegal conduct and, in most cases, with only a limited incentive to testify falsely, could place him in the Dominican Republic at the precise time of the murder and could corroborate the details of Griselda Vasquez's testimony at trial. In particular, if Encarnacion had been permitted to testify, her account of the events surrounding the telephone call she received from Griselda Vasquez on the night of the murder would have corroborated Griselda Vasquez's testimony that she spoke to Garcia on that occasion.
As noted above, in evaluating the prejudice prong of theStrickland test, a court must keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Harris, 288 F. Supp. 2d at 256 (quoting Strickland, 466 U.S. at 696, 104 S. Ct. 2052). In this case, there was no physical evidence linking petitioner to the murder. Rather, the prosecution established Garcia's connection to the murder only through Denor's in-court identification of the petitioner as the front-seat passenger and her testimony that she had been present at a lineup approximately five months after the murder. With respect to the lineup, although she initially identified someone other than number five as the individual in the lineup whom she recognized, Denor later told Det. Pezzullo that she had identified the wrong person and that she knew all along that the person she recognized had been the individual in the number five position. Thereafter, Det. Pezzullo testified that he was present at the lineup and that petitioner was in the number five position.
Furthermore, Denor's testimony on cross-examination revealed that she had been under the effects of Valium the night of the murder, that she had admitted that Valium made her sleepy, and that she was on another anti-depressant, Thorazine, at the time of the lineup and during the trial. Additionally, there were a number of inconsistencies in her testimony. Thus, the verdict in this case was not overwhelmingly supported by the record.
In light of the weakness of the prosecution's case, it appears that the petitioner was prejudiced by his attorney's deficient performance. Had Guttlein performed in a constitutionally effective manner by investigating and presenting an alibi defense, there is a reasonable probability that Garcia would not have been convicted for the crime with which he was charged.
The Court finds that trial counsel's performance at trial was constitutionally deficient and that petitioner was prejudiced by counsel's errors at trial. Therefore, the state court's denial of Garcia's motion to vacate the judgment of conviction pursuant to CPL § 440.10 was an unreasonable application of Strickland v. Washington. Accordingly, Garcia is entitled to habeas corpus relief on his claim.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Garcia's petition for a writ of habeas corpus be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis A. Kaplan, 500 Pearl Street, Room 1310, New York, New York, 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 530, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Kaplan. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).