13-2974-pr
Rivas v. Fischer




                                   In the
              United States Court of Appeals
                         for the Second Circuit

                             AUGUST TERM 2014
                              No. 13-2974-pr

                               HECTOR RIVAS,
                             Petitioner-Appellant,

                                      v.

                              BRIAN FISCHER,
               Superintendent, Sing Sing Correctional Facility,
                           Respondent-Appellee.



              On Appeal from the United States District Court
                  for the Northern District of New York



                         ARGUED: DECEMBER 9, 2014
                         DECIDED: MARCH 11, 2015



Before: CABRANES, POOLER, and SACK, Circuit Judges.



      Petitioner Hector Rivas appeals from the judgment of the
United States District Court for the Northern District of New York
(Gary L. Sharpe, Chief Judge) denying his amended petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254(d). On March 25, 1993,
a jury in Onondaga County Court in Syracuse, New York, found
Rivas guilty of second-degree murder for killing his former
girlfriend, Valerie Hill. At trial, the prosecution argued that Rivas
killed Hill on the night of Friday, March 27, 1987. Rivas was
sentenced to an indeterminate term of imprisonment of 25 years to
life, which he has been serving for the last 22 years. In 1999, Rivas
filed a motion for post-conviction relief pursuant to New York
Criminal Procedure Law § 440.10, raising, inter alia, a claim of
ineffective assistance of counsel and presenting essentially
unchallenged expert testimony persuasively demonstrating that Hill
could not have died on Friday, March 27, 1987. The Supreme Court
of the State of New York, Onondaga County, denied Rivas’s § 440.10
motion in its entirety.

       In 2002, Rivas filed an amended petition for a writ of habeas
corpus in the District Court. The District Court dismissed the
petition as time-barred, and we vacated and remanded, holding that
additional fact-finding on the issue of timeliness was required. After
an evidentiary hearing, the District Court again dismissed the
petition as time-barred. We reversed, holding that a ‚credible‛ and
‚compelling‛ showing of actual innocence warrants an equitable
exception to the limitation period set forth by the Antiterrorism and
Effective Death Penalty Act of 1996, allowing a petitioner to have his
otherwise time-barred claims heard by a federal court. We
concluded that Rivas had made such a showing, having produced
essentially unchallenged expert testimony ‚which call*ed+ into
serious doubt the central forensic evidence linking him to the
crime,‛ and, as a result, ‚a reasonable juror, apprised of all the
evidence in the record, would more likely than not vote to acquit.‛
We remanded the cause for Rivas’s petition to be heard on the




                                  2
merits. On remand, the District Court nonetheless denied Rivas’s
petition in its entirety.

       Because we conclude that the state court’s denial of Rivas’s
ineffective-assistance claim involved an ‚unreasonable application‛
of Strickland v. Washington, 466 U.S. 668 (1984), we REVERSE the
judgment of the District Court denying habeas relief and REMAND
the cause. On remand, the District Court shall issue a writ of habeas
corpus to Rivas by the sixtieth calendar day after the issuance of our
mandate unless the state has, by that time, taken concrete and
substantial steps expeditiously to retry Rivas.



                         RICHARD M. LANGONE, Langone &
                         Associates, PLLC, Levittown, NY, for
                         Petitioner-Appellant.

                         PRISCILLA STEWARD, Assistant Attorney
                         General (Barbara D. Underwood, Solicitor
                         General, Nikki Kowalski, Deputy Solicitor
                         General, on the brief), for Eric T.
                         Schneiderman, Attorney General for the
                         State of New York, New York, NY, for
                         Respondent-Appellee.



JOSÉ A. CABRANES, Circuit Judge:

      The question presented is whether we are required to grant a
writ of habeas corpus pursuant to 28 U.S.C. § 2254(d) because the
state court in this case unreasonably applied Strickland v.




                                   3
Washington, 466 U.S. 668 (1984), in rejecting petitioner Hector Rivas’s
claim of ineffective assistance of counsel.

      Rivas was convicted in Onondaga County Court of second-
degree murder for the death of his former girlfriend, Valerie Hill. At
trial, the prosecution argued that Rivas killed Hill on the night of
Friday, March 27, 1987, at her apartment in Syracuse, New York. In
formulating a defense strategy, Rivas’s defense counsel relied
principally on Rivas’s professed alibi, which placed him elsewhere
for most of that weekend. Crucially, however, Rivas did not have an
alibi during a key three-and-a-half hour window—between
approximately 9:00 p.m. on Friday, March 27, 1987, and 12:30 a.m.
on Saturday, March 28, 1987. The prosecution argued that Rivas
killed Hill during this exact time frame. The prosecution’s case was
almost entirely circumstantial and turned on the testimony of the
Chief Medical Examiner, Dr. Erik K. Mitchell.

      At the time of Hill’s murder, Dr. Mitchell had estimated the
time of Hill’s death as sometime after the close of that window—
between Saturday, March 28 and Sunday, March 29, 1987. At trial
nearly six years later, however, Dr. Mitchell expressed a very
different opinion, testifying instead that Hill died one night earlier—
on the evening of Friday, March 27, 1987—during which time Rivas
had no alibi. Despite its critical importance to his client’s case,
defense counsel failed to investigate the basis for Dr. Mitchell’s
apparently revised findings regarding the time of death and instead
relied principally on Rivas’s effectively irrelevant alibi for the
remainder of the weekend. After deliberating for approximately




                                   4
eight hours, the jury in Onondaga County Court found Rivas guilty
of second-degree murder. He was subsequently sentenced to an
indeterminate term of imprisonment of 25 years to life.

      On July 12, 1999, Rivas, with new counsel, filed a motion for
post-conviction relief pursuant to New York Criminal Procedure
Law § 440.10, raising, inter alia, a claim of ineffective assistance of
counsel. In his motion, Rivas presented essentially unchallenged
expert testimony persuasively showing that Hill in fact died
sometime after 3:30 p.m. on Saturday, March 28, 1987, casting grave
doubt on the prosecution’s theory that Hill was murdered on Friday
night. In his § 440.10 filing, Rivas also presented compelling
evidence further discrediting Dr. Mitchell. Rivas’s filing alleged that
Dr. Mitchell had perjuriously purported to base his time-of-death
opinion in part on ‚brain slides‛ that, Rivas later learned, were non-
existent. Rivas also introduced evidence that, at the time of Rivas’s
trial, Dr. Mitchell was under investigation by state and local
agencies (including possibly the office of the prosecutor who
charged Rivas) for various forms of misconduct. At trial, Rivas’s
counsel failed to challenge Dr. Mitchell’s reliance on the non-existent
‚brain slides,‛ or to cross-examine him regarding the investigations
into his alleged misconduct that were pending at the very time of
the prosecution of Rivas.

      On September 8, 2000, the Supreme Court of the State of New
York, Onondaga County, denied Rivas’s § 440.10 motion, holding,
inter alia, that ‚*d+efense counsel employed a trial strategy based
upon a defense that defendant was sufficiently alibied for the entire




                                  5
weekend, . . . and that the People would not be able to prove
defendant’s guilt beyond a reasonable doubt [as to] whether the jury
found that the crime occurred on Friday night or on Saturday
night.‛ People v. Rivas, No. 92-2794, slip. op. at 34–35 (N.Y. Sup. Ct.
Sept. 8, 2000). On June 19, 2002, Rivas filed an amended petition for
a writ of habeas corpus in the United States District Court for the
Northern District of New York, raising substantially the same claims
that he advanced in his § 440.10 motion. The District Court (Gary L.
Sharpe, Judge) dismissed Rivas’s petition as time-barred under 28
U.S.C. § 2254(d). See Rivas v. Fischer, No. 01-cv-1891, ECF No. 21
(N.D.N.Y. Jan. 28, 2005). We vacated and remanded, holding that
additional fact-finding on the issue of timeliness and actual
innocence was required. See Rivas v. Fischer, 294 F. App’x 677, 678–79
(2d Cir. 2008).

      After a hearing, the District Court again dismissed the petition
as untimely. See Rivas v. Fischer, No. 01-cv-1891 (GLS/DEP), 2010 WL
1257935 (N.D.N.Y. Mar. 26, 2010). We reversed, holding as a matter
of first impression in this Circuit that a ‚credible‛ and ‚compelling‛
showing of actual innocence warrants an equitable exception to
AEDPA’s limitation period, allowing a petitioner to have his
otherwise time-barred claims heard by a federal court. Rivas v.
Fischer, 687 F.3d 514, 517–18 (2d Cir. 2012). We concluded that Rivas
had   made        such   a   showing,   having   produced    essentially
unchallenged expert testimony ‚which call*ed+ into serious doubt
the central forensic evidence linking him to the crime,‛ and, as a
result, ‚a reasonable juror, apprised of all the evidence in the record,




                                    6
would more likely than not vote to acquit.‛ Id. at 552. We remanded
the cause for Rivas’s petition to be heard on the merits. After hearing
oral argument, the District Court nonetheless denied Rivas’s petition
in its entirety. See Rivas v. Fischer, No. 01-cv-1891 (GLS), 2013 WL
4026844 (N.D.N.Y. Aug. 6, 2013).

      We now reverse. We hold that, in viewing all the
circumstances at the time, no reasonable argument can be made that
Rivas’s defense counsel satisfied his ‚duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.‛ Strickland, 466 U.S. at 691.
We further hold that no reasonable argument can be made that
defense counsel’s deficient performance did not prejudice the
defense. See Strickland, 466 U.S. at 687. As a result, the state court’s
conclusion to the contrary involved an ‚unreasonable application‛
of Strickland. 28 U.S.C. § 2254(d)(1).

      Accordingly, we REVERSE the judgment of the District Court
denying habeas relief and REMAND the cause. On remand, the
District Court shall issue a writ of habeas corpus to Rivas by the
sixtieth calendar day after the issuance of our mandate unless the
state has, by that time, taken concrete and substantial steps
expeditiously to retry Rivas.

                           BACKGROUND

      We previously set forth the relevant facts in our prior opinion,
Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012). We incorporate those
facts herein by reference and reproduce the relevant portions here:




                                    7
       [BEGINNING OF QUOTED PASSAGES FROM OUR
       PRIOR 2012 OPINION]1

       A.      The Murder of Valerie Hill

              At approximately 11:45 a.m. on Monday, March
       30, 1987, Randall Hill (‚Randall‛) discovered the lifeless
       body of his twenty-eight-year-old daughter, Valerie Hill
       (‚Hill‛), on the living-room floor of her apartment on
       Hickok Avenue in Syracuse, New York. Transcript of
       the Trial of Hector Rivas (March 17, 1993) (‚Trial Tr.‛)
       at 103.

              Randall had last seen his daughter on Friday
       night, March 27, when the two met for dinner at a
       nearby restaurant. He later recalled that Hill seemed
       upset during their meeting and did not eat anything. Id.
       at 96–98. During their conversation, Hill informed her
       father that she was planning to spend the weekend
       visiting a friend in the Albany area and would not
       return until Sunday evening. Id. at 99. Hill left the
       restaurant at approximately 8:15 p.m. on Friday. Id. at
       97–98. The friend Hill planned to visit, Laura Adams,
       later testified that she called Hill ‚dozens of times‛ on
       Friday night and throughout the weekend, but never


       1 Although our previous recitation of the facts drew from both the record
of Rivas’s state collateral proceeding and the evidentiary hearing held by the
District Court, id. at 518, our review under 28 U.S.C. § 2254(d) ‚is limited to the
record that was before the state court that adjudicated the claim on the merits,‛
Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The footnotes within the quoted
passages are numbered as in the original. Brackets are used to correct
typographical errors.




                                        8
reached her, although she encountered at least one
‚busy‛ signal. Id. at 217–19, 221. Randall also had no
success when he attempted to call Hill on Sunday night
and again Monday morning. Id. at 99–100.

      On Monday morning, Randall went to the
hospital where Hill was employed as a pediatric nurse
(and where Randall’s wife was then admitted as a
patient) and discovered that Hill had not reported to
work. Id. at 101, 103. Concerned, he drove to Hill’s
apartment, where he found her car parked in the
driveway. Randall let himself in through the unlocked
side door and discovered Hill lying ‚face down on the
carpet‛ in her living room. She was wearing a bathrobe,
which was pulled ‚up around her shoulders,‛ and was
otherwise naked. Id. at 100–03. The belt of the bathrobe
was wrapped around her neck. Id. at 157.

       Randall immediately called the police, as well as
his son, David. Id. at 104. Arriving at the scene, police
investigators found no signs of forced entry into Hill’s
apartment, which was on the bottom floor of a two-
family house. Id. at 107, 228–29. The apartment was
‚very neat,‛ and nothing appeared to be out of order.
Id. at 228. A number of cigarettes of the brand Rivas
smoked were found in an ashtray in Hill’s kitchen. Id. at
150–51, 638. Later testing revealed that fingerprints on
the ashtray, as well as on a bottle of wine, belonged to
Rivas. Id. at 591–93.2 In addition to Rivas’s and Hill’s


       2Rivas, having dated Hill, had been in her apartment
many times before and it was undisputed at trial that he had been




                               9
fingerprints, an unidentified set of prints was taken
from the telephone. Id. at 588. Missing from the
apartment was an airline ticket that Hill had collected
from her travel agent on the afternoon of Friday, March
27.

       After learning from Randall and David that Hill
had recently broken up with Rivas, police officers went
to Rivas’s house in Cazenovia, a town about twenty
miles southeast of Syracuse. Id. at 235. Rivas agreed to
accompany the officers to the Syracuse police station.
Sergeant John D. Brennan later testified that Rivas
appeared nervous,3 but was cooperative and did not
inquire as to why he was being questioned. Id. at 237–
28. At the police station, Rivas was taken to an
interrogation room where police proceeded to question
him for approximately twelve hours. Despite the fact
that he was interrogated at length regarding his
activities the weekend of Hill’s death, Rivas was never
informed of his Miranda rights because, the police
officers later insisted, he was not regarded as a suspect
at that time. Trial Tr. at 239. At approximately 5:30 p.m.,
after over two hours of questioning, police informed
Rivas that Hill had been killed. According to Brennan,



in her apartment as recently as Thursday, March 26, 1987. Id. at
240.
       3 However, another officer who interviewed Rivas that
day, Frank Pieklik, testified at a pretrial motions hearing that
Rivas ‚appeared, as I recall, quite normal.‛ Transcript of Feb. 24,
1993, Hearing (‚Pretrial Hearing Tr.‛) at 30 (Feb. 24, 1993).




                                10
Rivas exhibited no discernible reaction upon hearing
this news. Id. at 247.

       During the interview, Rivas told the police that he
had last seen Hill four days earlier, on the evening of
Thursday, March 26, 1987, when he had gone to her
house and talked to her for half an hour. Id. at 240. He
had also driven by Hill’s apartment at 2:00 p.m. the
following day, Friday, March 27, and again
approximately four hours later, at 6:00 p.m. He claimed
he did not linger on either occasion after discovering
that Hill was not home. Id. at 240–41. Rivas said that he
had spent most of Friday evening with friends at
various bars in Syracuse and Cazenovia. See Trial Exh.
1. He stated that he was at Coleman’s Bar (‚Coleman’s‛)
in Syracuse from about 6:00 to 11:00 p.m. He then went
to Albert’s Bar (‚Albert’s‛) in Cazenovia and stayed
there until 2:00 a.m., before returning to Syracuse to get
breakfast at an all-night diner. He finally went home
and fell asleep at 4:00 a.m. Rivas claimed that he awoke
at 11:30 a.m. on Saturday and returned to Albert’s to do
some plumbing work. He remained for lunch and then
went home to take care of some yard work. He then
returned to Albert’s to watch Syracuse compete in the
‚Final Four‛ of the NCAA Men’s Basketball
Tournament. He remained at Albert’s until
approximately 8:00 p.m., whereupon he went to a party
at a friend’s house until 4 a.m. on Sunday, March 29,
before returning home to bed. As Rivas stated in the
interview, many people saw him and spoke with him
on Saturday night. Id.




                           11
      While Rivas was being questioned at the station,
other police officers put together an application for a
warrant to search his residence. Attached to the
application was an affidavit signed by Officer Timothy
Phinney, attesting that there was probable cause to
believe that several items would be found in Rivas’s
home, including a key to Hill’s apartment and clothing
soiled with blood, fecal matter, or other contaminants.
See Motion to Vacate Sentence Pursuant to Criminal
Procedure Law 440.10 (‚Section 440.10 Mot.‛) Exhs. 1 &
2. The affidavit also stated that the Onondaga County
Medical Examiner, Dr. Erik Mitchell, had preliminarily
estimated the time of Hill’s death to be ‚sometime
[between] [S]aturday the 28th of March afternoon and
*S+unday morning *the+ 29th of March 1987.‛ Id. Exh. 2.4


       4   Contemporaneous newspaper articles also reported that
Mitchell had estimated the time of death to have been sometime
late Saturday night, March 28, to early Sunday morning, March
29. See, e.g., Mike McAndrew, ‚As Wife Lay Dying, Man Found
His Daughter Slain,‛ The Syracuse Post–Standard, Apr. 1, 1987, at
A1 (‚Onondaga County Medical Examiner Erik Mitchell has
determined that Hill was strangled late Saturday or early Sunday,
Deputy Police Chief Robert Galvin said.‛); John Doherty, ‚Police
Have No Clues into Slaying of Nurse,‛ The Syracuse Post–Standard,
Apr. 1, 1987, at B3 (‚An autopsy has determined that Valerie J.
Hill . . . was strangled to death with the cloth belt of her bathrobe,
police said. The report also indicated that she died sometime
Saturday or early Sunday morning, police said.‛).
        We take judicial notice of ‚the fact that press coverage
contained certain information, without regard to the truth of [its]
contents.‛ Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d
Cir. 2008).




                                 12
      In the basement of Rivas’s house, investigators
discovered a damp jacket draped over a clothesline.
Trial Tr. [at] 274–75. Although a search of household
trash was not expressly contemplated by the warrant,
investigators also seized and reconstructed a torn-up
note, which they found in a trash bag in Rivas’s
kitchen.5 The note was from Hill to another former
boyfriend, Bob Lucas, expressing her thanks for their
time together. See Trial Exh. 5.6 Finally, inside a
bedroom closet, investigators observed what they
described as a ‚shrine,‛ consisting of a large statue of
the Virgin Mary surrounded by two small candles and a
photograph of Hill. Trial Tr. at 270–74, 316. Although
photographs were taken of the trash bag that contained
the note, as well as other items in Rivas’s house, no
photograph was taken of the ‚shrine.‛ See id.



       5 Rivas later argued that the note had been recovered from
Hill’s apartment and not his. See Mem. Supp. § 440.10 Mot. at 34.
       6 The note was admitted at trial over Rivas’s objection. On
direct appeal, the Appellate Division of the New York Supreme
Court held that the note should have been suppressed because it
was not within the scope of the warrant and did not fall under the
‚plain view‛ exception, but that its improper admission at trial
constituted harmless error. See People v. Rivas, 214 A.D.2d 996, 626
N.Y.S.2d 640, 641 (4th Dep’t 1995). [In our prior opinion, we
explained that, because] in reviewing a claim of actual innocence
we consider ‚all the evidence ... without regard to whether it
would necessarily be admitted under rules of admissibility that
would govern at trial,‛ House, 547 U.S. at 538, 126 S. Ct. 2064
(internal quotation marks omitted), we need not ignore the
contents of the note.




                                13
       Despite a thorough investigation, neither Rivas
nor anyone else was charged with, or even publicly
identified as a suspect in, Hill’s murder, which
remained a ‚cold case‛ for five years.

B.    The Indictment of Hector Rivas

       In January 1992, William J. Fitzpatrick was sworn
in as District Attorney of Onondaga County, having
previously served in that office as an Assistant District
Attorney. According to his biography on the Onondaga
County District Attorney’s website, when he was Chief
Assistant District Attorney, ‚Fitzpatrick specialized in
re-opening cases that had previously been considered
inactive and, with the cooperation of various police
agencies in Onondaga County and the state of New
York, he brought numerous killers to justice in cases
that were thought to be un-winnable.‛ See ‚Meet the
DA,‛ Office of the Onondaga District Attorney,
www.ongovda.net/section/meet_the_da/ (last visited
May 30, 2012).

       On November 22, 1992, nearly six years after the
murder of Valerie Hill, a grand jury indicted Rivas on
charges of murder in the second degree and aggravated
sexual abuse. It is not clear what, if any, new evidence
might have come to light that would lead authorities to
pursue, and the grand jury to indict, Rivas nearly six
years after the murder. In its Bill of Particulars,
responding to a defense request for the date when Rivas
was first identified as a possible perpetrator of the
crime, the prosecution stated, simply: ‚It is very
difficult to respond to this request. Defendant was




                           14
indicted in November 1992.‛ See Rivas v. Fischer, No. 01–
cv–1891, (N.D.N.Y. Sept. 18, 2009), ECF No. 55–2 at 56
(Answering Affidavit).

       Rivas contends that, sometime after becoming
District Attorney, Fitzpatrick approached Mitchell, the
medical examiner, and requested that he review Hill’s
autopsy report with an eye toward expanding the time
of death to include Friday, March 27, 1987, when
Rivas’s alibi was not as strong. According to Rivas, at
the time this alleged request was made, Mitchell ‚was
under criminal investigation by DA Fitzpatrick’s office,
as well as by the Department of Health and the
Department of Environmental Conservation‛ for
varieties of misconduct, including improper disposal of
waste and stealing and mishandling of body parts.
Appellant’s Br. at 8.

       The State concedes that Mitchell was accused of
various forms of misconduct as early as 1989, see
Appellee’s Br. at 24, and does not dispute that he was
under investigation by the State Department of Health
at the time he testified against Rivas. It is also
undisputed that Mitchell resigned in November 1993, in
part to avoid prosecution by the District Attorney’s
Office. See Remand Hearing Tr.[, dated Sept. 21 & 22,
2009,] at 205.7 It is not clear from the record, however, at

       7 Mitchell’s decision to resign was widely reported in the
local newspapers. See, e.g., John O’Brien & Todd Lightly, ‚DA:
Mitchell ‘Went Too Far’: Medical Examiner, Accused of
Mishandling Body Parts, Quits Under Pressure,‛ The Syracuse
Post–Standard, Nov. 20, 1993, at A1 (‚Thursday, Fitzpatrick told




                               15
what point the District Attorney’s Office opened its
criminal investigation into Mitchell’s conduct.8 Though
Rivas’s state post-conviction attorneys submitted
requests under New York’s Freedom of Information
Law      requesting    information      regarding    the
investigation, the County provided only one page (a
press release) in response, maintaining that other
materials were non-final agency records and attorney
work product. See Remand Hearing Tr.[, dated Sept. 21
& 22, 2009,] at 208. Rivas’s attorneys also persuaded a


Mitchell’s lawyer that if Mitchell resigned, the criminal
investigation would end.‛). In the separate investigation by the
State Department of Health, Mitchell was later cleared of
wrongdoing. See Jim O’Hara, ‚Ex–Medical Examiner Cleared of
Wrongdoing: Mitchell was Accused of Improperly Harvesting
Body Parts,‛ Syracuse Post–Standard, Nov. 16, 1995, at B1.
       8  The investigation was triggered when two subordinates
publicly accused Mitchell of misconduct. These self-styled
‚whistleblowers‛ submitted statements that were included in the
record of Rivas’s initial appeal to this Court. One subordinate
claimed to have witnessed Mitchell ‚slant the interpretation of
evidence and/or exclude evidence to serve his predetermined
objectives,‛ and averred that ‚Dr. Mitchell’s opinions and
interpretations of evidence cannot be trusted as impartial or
accurate.‛ Aff. of William R. Sawyer at 5–7 (quoted in Joint App’x
at 337 n.7). Another—who was himself fired at the same time
Mitchell resigned, and later had his medical license revoked for
persistent drug and alcohol abuse—claimed that Mitchell had
instructed him to fashion his autopsy reports in a way that would
allow for manipulation of the case findings and had remarked that
‚the medical examiners worked for Onondaga County and were
there to serve the needs of the District Attorney’s Office.‛ Letter of
David A. Rigle at 16 (quoted in Joint App’x at 337 n.7).




                                 16
state Supreme Court justice to conduct an in camera
review of the County’s investigation of Mitchell in 1998,
but the judge determined that the documents would not
be provided to Rivas.9

       In any case, whether it was out of an ‚eager*ness+
to please the prosecutor,‛ Appellant’s Br. at 5, as Rivas
suggests, or based upon an independent reevaluation of
the medical record, it does appear that sometime in
1992, Mitchell reconsidered his estimate of the time of
death. The grand jury’s indictment alleges that Rivas
killed Hill ‚on or about‛ Friday, March 27, 1987. The
State has identified no new evidence that came to light
between March 1987 and November 1992 that led to the
indictment.10 As far as the record reflects, therefore, the
only thing that changed during that span of time was
the medical examiner’s estimation of the time of death.




       9   The judge did, however, inform one of Rivas’s attorneys
that Fitzpatrick was scheduled to attend a meeting with a
legislative committee regarding allegations against Mitchell on
April 13, 1993, just over two weeks after the conclusion of Rivas’s
trial. See Remand Hearing Tr.[, dated Sept. 21 & 22, 2009,] 117–19.
       10  It appears that the only new evidence prosecutors
employed at Rivas’s trial was the testimony of a former friend,
who stated that Rivas made an incriminating statement to the
effect that he ‚didn’t mean to do it‛ shortly after Hill’s death. See
Trial Tr. at 816–17. However, prosecutors evidently did not learn
of this alleged statement until after the indictment was returned,
when the witness’s girlfriend came forward. See id. at 828–29.




                                 17
C.     The Trial of Hector Rivas

       Rivas was tried before a jury in March 1993, with
now-deceased Onondaga County Court Judge J. Kevin
Mulroy presiding. He was represented by Richard J.
Calle, an attorney then practicing in Queens, New York.
Rivas, who had moved downstate, hired Calle because
Calle happened to be representing him in a civil
arbitration matter in the fall of 1992, around the time the
District Attorney’s Office renewed its investigation of
him in connection with Hill’s murder. See Section 440.10
Hearing Tr. at 11. Calle did not work out of a formal
business office and, on the occasions that he met with
Rivas prior to Rivas’s incarceration, those meetings
were typically held in Rivas’s sister’s apartment or at a
local diner.11

       1.      The People’s Direct Case

      The People’s case was almost entirely
circumstantial.12 District Attorney Fitzpatrick, who tried
the case himself, presented Rivas as an obsessive, jilted


       11Calle was later indicted and convicted on federal charges
of obstruction of justice and mail fraud unrelated to his
representation of Rivas. He was disbarred from the practice of law
in New York State nine years after Rivas’s trial. See In re Calle, 301
A.D.2d 218, 749 N.Y.S.2d 528 (1st Dep’t 2002).
       12Several of Rivas’s fingerprints had been found on items
in Hill’s house, including a bottle of wine. However, the
prosecution acknowledged at trial that Rivas had been in the
apartment many times before, including in the week prior to Hill’s
death.




                                 18
lover who harassed Hill following their breakup and
was pushed over the edge when he learned that Hill
was planning to take a trip to the Bahamas alone. Trial
Tr. at 1127–28. As Fitzpatrick summarized: ‚Hector
Rivas stalked this woman [for] two and a half months,
and finally strangled her and killed her in a jealous rage
on March the 27th of 1987.‛ Id. at 1069.

       Trial testimony and exhibits supported at least
part of this theory. Friends of Hill testified that Rivas
persisted in contacting Hill on a regular basis, even after
she had made clear that she did not want to continue or
revive their relationship. In addition, the prosecution
introduced dozens of notes, cards, and letters that Rivas
had written to Hill in the months between their breakup
and her death. See id. at 1092–97. Police investigators
also testified regarding Rivas’s strange behavior when
he was first questioned, including his lack of reaction
when he was told that Hill had died. Id. at 247.

        Several witnesses testified regarding Rivas’s
whereabouts on Friday, March 27, 1987, the alleged date
of the murder. Taken together, the testimony of these
witnesses suggested that there may have been a
window of time during which Rivas could have gone to
Hill’s house and strangled her while en route from
Coleman’s in Syracuse to Albert’s in Cazenovia, about
thirty minutes away. Prosecution witnesses testified
that Rivas left Coleman’s at around 9:00 or 9:30 p.m.
and did not arrive at Albert’s until sometime between
11:00 p.m. and 12:30 a.m. Id. at 461–63, 439–40, 849. One
witness, a clerk at a liquor store near Hill’s apartment,
testified that he saw Rivas enter the store between 9:30




                            19
and 10:00 p.m. Id. at 496–99. Two witnesses testified that
they observed Rivas smoking a cigarette in his car,
which was parked outside Hill’s house, sometime
between 11:00 p.m. and 12:00 a.m. that night—around
the time that the prosecution theorized Hill was
murdered. Id. at 533–34, 936–37.13

        Beyond making the case that Rivas had motive
and the opportunity to murder Hill on Friday night,
Fitzpatrick deftly turned Rivas’s alibi for Saturday
against him. Through witness testimony and in his
opening and summation, Fitzpatrick suggested that
Rivas had contrived to be seen by many people at all
hours of the day Saturday and into Sunday morning, so
that he would have an alibi in the event that police
focused on Saturday evening as the time of death. See,
e.g., id. at 1084, 1124. For example, Elizabeth Lewis, one
of Hill’s friends, testified that Rivas sought her out at a
party Saturday evening and remarked that ‚*i+t’s too
bad Valerie’s not feeling well, that she can’t be here
tonight.‛ Id. at 780. The implication, according to the
prosecution, was that Rivas wanted to plant the idea in
Lewis’s mind that Hill was alive on Saturday evening,



       13 One of these witnesses, Hill’s upstairs neighbor, was in
fact called by Rivas as a defense witness, apparently because she
had initially told police that she had seen Hill in their shared
basement on Saturday morning, March 28. However, under cross
examination by Fitzpatrick, she readily conceded that she was
mistaken in her initial statement to police and had in fact seen Hill
on Friday morning, March 27. Trial Tr. 928–29, 932.




                                 20
knowing that he was at that very moment cementing
his alibi. See id. at 1124.14

      Similarly, Fitzpatrick emphasized a seemingly
exculpatory item of evidence: a Stephen King novel that
Hill had checked out from the Cazenovia Public
Library, and which a witness had seen in the back seat
of Hill’s car on Friday afternoon. See id. at 190–91. The
book was returned to the library’s drop box sometime
between Saturday afternoon and Sunday morning,
suggesting that Hill (the most likely person to have
returned it) was alive at least as late as Saturday
afternoon. But Fitzpatrick theorized that it was Rivas
who returned the book, hoping that it would cause
investigators to believe that Hill was not killed on
Friday night, when his alibi was relatively weaker. Id. at
54–55, 1085.15


       14 Lewis did not testify that Rivas claimed to have spoken
to Hill on Saturday. However, it was her sense, six years later, that
he was trying to convey the impression that he had. This
purported plan backfired, because Lewis—unlike Rivas—knew
that Hill was planning to be out of town that weekend. Rivas’s
comment therefore struck her as odd. Trial Tr. [at] 780.
       15 As Rivas pointed out in his state collateral motion,
however, Hill had requested the book through an interlibrary loan
and all of the markings on the book indicated it was from a
different library, in Utica. Thus, Rivas (belatedly) argued, only
Hill would have known to return it to Cazenovia library and not
the original library. Furthermore, although the prosecution’s
fingerprint expert examined the book and found three prints that
he could not identify, he apparently did not recover any of Rivas’s
prints from the book. See Trial Tr. at 588.




                                 21
       Finally, [Fitzpatrick] elicited testimony from Joe
Fields, an acquaintance of Rivas, who encountered him
at Albert’s bar approximately three weeks after the
murder. Rivas had been drinking heavily and was
crying over Hill’s death. According to Fields, at a
moment when Rivas did not know that Fields was in
earshot, he said to himself, ‚Valerie, Valerie, I didn’t
mean to do it.‛ Id. at 817–18.

       2.     The Medical Examiner’s Testimony

       No matter how much circumstantial evidence the
prosecution could amass tending to link Rivas to the
crime, however, it had no case unless it could prove that
Hill died on Friday night. Fitzpatrick himself
acknowledged that Rivas’s alibi was ‚complete—for
Saturday night.‛ Id. at 55. Indeed, it was the People’s
position that Rivas’s alibi was so strong on Saturday
night precisely because he had concocted it, having
murdered Hill the night before. Therefore, the
prosecution’s case rested almost entirely on the
testimony of Mitchell, the medical examiner, to
persuade the jury that Hill died on Friday night and not
on Saturday as Mitchell had initially determined.

        Mitchell testified that, when he first observed
Hill’s body on the afternoon of Monday, March 30, it
‚was in rigor,‛ and that by the time he performed an
autopsy later that day, ‚*s+he was coming out of rigor.‛
Id. at 869, 872.16 He cautioned that no medical examiner

       16In the ‚scene investigation‛ report that Mitchell
prepared and signed at the time of his initial inquiry into the




                              22
can pinpoint with certainty the time of a person’s death,
id. at 886, but stated that, based on his observations of
the body, there was nothing inconsistent with Hill
having died on either the night of Saturday, March 28,
or Friday, March 27. Id. at 888. However, taking into
account a number of external factors—namely, that
Hill’s cat was seen outside on Saturday morning; that
Hill had not been seen after Friday; that she never
contacted the friend whom she intended to visit that
weekend; that her car had apparently not been driven
since Friday; and that she had not been in touch with
her father despite the fact that his wife was gravely ill—
Mitchell opined that ‚it’s more likely that she died
Friday night, to possibly very early Saturday morning‛
than on Saturday night. Trial Tr. [at] 889–90. He also
stated his opinion ‚within a reasonable degree of
medical certainty‛ that Hill died as a result of being
strangled. Id. at 891.17

      Confronted      on     cross-examination     with
contemporaneous newspaper accounts that reported on
his preliminary findings, Mitchell admitted that he
‚*q+uite possibly‛ had estimated at some point that Hill
died late on Saturday night or early Sunday morning.


cause and time of Hill’s death, he reported that he had found
Hill’s body in ‚full rigor, with fixed anterior livor.‛ See Remand
Hearing Tr. [at] 75–76[, dated Sept. 21 & 22, 2009] (emphasis
added).
       17 Whether by design or oversight, Mitchell did not testify
that his opinion on Hill’s time of death was ‚within a reasonable
degree of medical certainty.‛ Trial Tr. at 891.




                               23
Id. at 895–96.18 Mitchell also conceded that, when he
testified before the grand jury in November 1992, he
had stated that it was merely ‚on the outside edge of * +
possibility‛ that Hill could have been murdered on
Friday night. Id. at 907. At trial, however, he insisted
that he had never ‚tied *himself+‛ to a Saturday night
estimate. Id. at 895. He stressed that the onset and
relaxation of rigor mortis was highly variable and could
be slowed, for example, by cold temperatures. Id. at
905–06. Although Mitchell thus acknowledged that in
most cases rigor mortis relaxes within twenty-four to
forty-eight hours (which would put Hill’s time of death
somewhere between Saturday and Sunday afternoon),
he suggested that the cool temperatures in Hill’s
apartment could have retarded the process.

       On redirect examination, Mitchell explained that,
when he testified before the grand jury several months
earlier, he had not reviewed ‚some of *his+ notes and
slides.‛ Id. at 915. Having had the opportunity to review
the ‚slides‛ before trial, he noticed in them ‚some




       18 Although Calle attempted to impeach Mitchell with
newspaper articles suggesting that Mitchell had initially estimated
the time of death to be [Saturday] night, he did not refer to the
police affidavit supporting the application to search Rivas’s
residence, which stated that Mitchell had preliminarily estimated
the time of Hill’s death to be ‚sometime *between+ *S+aturday the
28th of March afternoon and [S]unday morning [the] 29th of
March 1987,‛ Section 440.10 Mot. Exh. 2. See Section 440.10
Hearing Tr. at 98.




                                24
decomposition to the brain.‛ Id. This, he stated, ‚tends
to push the [time+ limits further out.‛ Id.19

       3.      Belated Disclosure of Exculpatory Evidence

      At the close of the People’s case, Fitzpatrick
disclosed the existence of an August 1988 affidavit from
one Joe Morgan, in which Morgan attested that an
individual named Patsy Barricella had admitted to
Morgan that he (Barricella) murdered Hill. Trial Tr. at

       19  Rivas contends that Mitchell committed perjury when he
testified that he had examined ‚brain slides,‛ because the medical
examiner’s file did not, in fact, contain any such slides. The state
concedes that there were no ‚brain slides‛—that is, sectional
slides containing actual brain tissue. It argues, however, that there
were in fact two photographic slides containing images of Hill’s
brain, and that Mitchell may have been referring to those slides in
his testimony.
         We need not, and therefore do not, address Rivas’s
allegation that Mitchell committed perjury. We note, however,
that Fitzpatrick specifically characterized the slides in question as
‚autopsy sectional slides‛ in his closing argument. Trial Tr. at
1082–83. Furthermore, Rivas’s expert, Dr. Cyril Wecht, has
testified [at the federal evidentiary hearing before the District
Court in 2009] that a forensic pathologist would ‚not use the word
slide synonymously with a photograph.‛ Remand Hearing Tr.[,
dated Sept. 21 & 22, 2009,] at 27. In any case, Wecht has also
testified [before the state collateral review court in 1999] that, even
if Mitchell had examined ‚brain slides‛ (that is, sectional slides),
such a review is ‚totally unreliable‛ as a means of determining the
time of death, because the sections of the brain contained in such
slides continue to decompose for up to ten days after the brain is
placed in a formalin bath for preservation. See Aff. of Cyril H.
Wecht[, dated June 11, 1999,] Supp. Section 440.10 Mot. at 6.




                                  25
947–48.20 Recognizing that this evidence was
‚exculpatory without a doubt,‛ id. at 984, the trial judge
allowed Calle, Rivas’s attorney, to decide whether to
adjourn and attempt to call Morgan or Barricella as
witnesses, or instead to bring out the information
contained in the affidavits by examining the Syracuse
police officer who had interviewed Morgan. Calle opted
to draw the information out of the police officer,
Michael Ostuni. Id. at 987. According to [Officer]
Ostuni, Morgan claimed that he had a conversation
with his friend and neighbor Barricella in March 1988,
at which time Barricella confessed to killing ‚the girl on
Hickok Avenue.‛ Section 440.10 Mot. Exh. 8. In
addition, Barricella had, according to Morgan, driven
by the crime scene several times as police were
investigating Hill’s murder and was stopped by police
as a result. (Indeed, a contemporaneous police report
revealed that Barricella was stopped by police after
driving by the crime scene repeatedly. See Section
440.10 Mot. Exhs. 9 & 10.) However, on cross-
examination by the District Attorney, Ostuni also
testified that Morgan was a con artist and career
criminal who had contacted the police from a county jail
cell, demanding release as a quid pro quo for
cooperation. Trial Tr. at 998–1000. Ostuni further

       20 Though it is unclear when Fitzpatrick first became aware
of or obtained Morgan’s affidavit itself, the trial transcript
suggests that he was in possession of at least some documents
relating to Morgan before opening statements were made, and
thus well before this information was turned over to the defense.
See Trial Tr. at 65.




                               26
testified that Barricella was known to be ‚mildly
mentally retarded.‛ Id. at 1001.

      4.    Rivas’s Direct Case

       Beyond the testimony of Ostuni, Rivas’s direct
case was underwhelming. As Calle later testified, he did
not appreciate at trial that the precise time of Hill’s
death was important because he felt that Rivas had a
strong alibi throughout the entire weekend. He
therefore never considered calling an expert forensic
pathologist to challenge Mitchell’s adjusted findings.
See Section 440.10 Hearing Tr. at 85, 87. He did attempt
to establish that Hill was alive on Saturday by calling a
prosecution witness, Hill’s upstairs neighbor, to read
from an affidavit in which she had stated that she had
seen Hill in their shared basement that morning.
However, on cross-examination by Fitzpatrick, the
witness readily conceded that she had been mistaken in
her affidavit and had in fact seen Hill on Friday
morning, not the following day. See Trial Tr. at 927–932.
Calle also attempted to establish Rivas’s alibi by calling
a single witness who claimed to have seen Rivas at
Albert’s in Cazenovia as early as 7:30 p.m. on Friday. Id.
at 967. Finally, he called a witness who testified that
Rivas was acting normally on Saturday night. Id. at 974.
Rivas did not testify in his own defense, and claims that
Calle never informed him of his right to do so. Section
440.10 Hearing Tr. at 17–18.

      5.    Summations

      In his closing argument, Calle argued that the
Hill murder had been solved backwards: The police and




                           27
the District Attorney’s Office had decided at the outset
that Rivas was the killer and then set out to find, or
fabricate, the proof of the murder from there, ignoring
other potential leads along the way. Trial Tr. at 1044.
With respect to the time of death, Calle argued that
Mitchell had to stretch science beyond the breaking
point to opine at trial that it was more likely that Hill
had been killed on Friday than on Saturday, when
Mitchell had previously testified before the grand jury
that a Friday time of death was only ‚on the outside
limits of possibility.‛ Id. at 1062. Calle did not explicitly
challenge Mitchell’s credibility or suggest that he might
be beholden to the District Attorney’s Office. Indeed,
Rivas claims that neither he nor Calle were aware of the
investigations into Mitchell’s conduct at the time of the
trial, despite their widespread publicity in the weeks
leading up to it, apparently because they both then
lived downstate. See § 2254 Petition at iv; Remand
Hearing Tr.[, dated Sept. 21 & 22, 2009,] at 271–72.

     Fitzpatrick, in       his    summation,       defended
Mitchell’s estimates:

      [A]s [Dr. Mitchell] told the grand jury, rigor
      mortis, the stiffening of the body after
      death, normally begins to pass off within 24
      to 48 hours. If we were looking at a
      calendar, this would put the normal time of
      death or the normal median time of death
      sometime Saturday afternoon. Could it
      have been 16, 17, 18 hours earlier?
      Absolutely. Absolutely. Heating conditions
      refer, first of all, to 75 degrees. It wasn’t the




                             28
       temperature of the house. The temperature
       of the house was 62 degrees. . . . Basement
       underneath her, cold floor. And the nights
       as you might expect, in March of 1987 were
       cold as well.

Trial Tr. at 1082–83.21 Furthermore, Fitzpatrick argued,
Mitchell had ‚had a chance to review autopsy sectional
slides of the brain,‛ id., which tended to expand the
range of possible times of death. This review,
Fitzpatrick claimed, combined with the external
indications Mitchell had identified, had led Mitchell to
opine that it was most likely that Hill died on Friday,
March 27.




       21 In fact, the temperature of the apartment was never
recorded and Hill was lying on a carpeted floor. The record also
reveals that the week of Hill’s death was unusually warm. One
witness told police that the last time she had seen Hill, Hill was
sunbathing in her backyard. Section 440.10 Mot. Exh. 24. Another
witness stated that she had her window open late Saturday night,
when she heard a woman’s scream. Id. Exh. 4.
        Parenthetically, we note that, according to the National
Climatic Data Center, the mean temperature in Syracuse, NY, on
March 27, 1987, was 51° Fahrenheit, with a high of 61° and a low
of 40°. On March 28, the temperature ranged from 37–65° with a
mean of 51°. And on Sunday, March 29, the day before Hill’s body
was discovered, the high temperature was 74° and the low 36[°]
with a mean of 55°. See Local Climatological Data, Monthly
Summary for Syracuse, NY, March 1987, available at
http://www7.ncdc.noaa.gov/IPS/lcd/lcd.html?_finish=0.400803217
488396 (last visited July 3, 2012).




                               29
       Summarizing the evidence against Rivas,
Fitzpatrick theorized that Rivas had paid Hill a visit on
Friday night after he left Coleman’s bar, and had
brought over a bottle of rum and a bottle of wine in
hopes that the two could mend their relationship. When
he discovered that Hill not only did not want to reunite
with him, but was also planning a trip to the Bahamas
alone, he flew into a rage and strangled her. Then,
realizing he needed to cover up the crime, he got rid of
the airline ticket (but left an ashtray full of his
cigarettes), and, on the way to his car, took Hill’s library
book from the back seat of her car, intending to return it
the next day to make it appear as though Hill were still
alive. He then crafted a tight alibi for the rest of the
weekend. Id. at 1125–30.

      The jury deliberated for eight hours over the
course of one day, during which time it asked for
further instructions on the meaning of ‚reasonable
doubt.‛ Id. at 1188. At approximately 10:45 p.m. on
March 25, 1993, nearly six years to the day after Valerie
Hill was killed, Hector Rivas was found guilty of
second-degree murder. He was subsequently sentenced
on May 12, 1993, to an indeterminate term of
imprisonment of twenty-five years to life.

D.    State Post–Conviction Proceedings

      Rivas, with the assistance of new counsel,
appealed his conviction to the Appellate Division of the
New York Supreme Court . . . . On April 28, 1995, the
Appellate Division issued a decision unanimously
affirming Rivas’s conviction. People v. Rivas, 214 A.D.2d




                            30
996, 626 N.Y.S.2d 640 (4th Dep’t 1995) . . . . Rivas’s
application for leave to appeal to the New York Court
of Appeals was denied on August 15, 1995. People v.
Rivas, 86 N.Y.2d 801, 632 N.Y.S.2d 514, 656 N.E.2d 613
(1995) (table).22

       Thereafter, with the assistance of yet another
lawyer, Rivas filed a motion to vacate the judgment of
conviction pursuant to N.Y. Criminal Procedure Law
§ 440.10, which provides the means of collateral attack
on a criminal judgment in New York state courts. In
that application, Rivas alleged that he had been the
victim of a ‚concerted effort to convict that was severed
from concerns over actual guilt very early on in this
investigation and was orchestrated by the District
Attorney himself, William J. Fitzpatrick, who personally
prosecuted this case.‛ Affirmation of H. Mitchell
Schuman in Support of Section 440.10 Mot. at 3.

       Principal among Rivas’s allegations was that
Mitchell, the medical examiner, had altered his original
estimate of the time of Hill’s death in order to satisfy the
District Attorney in hopes of avoiding prosecution for
alleged criminal misconduct. Id. at 4–7. Rivas claimed
not to have known about the investigation of Mitchell
and his office until after the trial, when Mitchell was
indeed forced to resign to avoid prosecution by


       22 Rivas also filed an application for a writ of error coram
nobis, which was denied by the Appellate Division on September
27, 1996. People v. Rivas, 231 A.D.2d 971, 647 N.Y.S.2d 648 (4th
Dep’t 1996) (Table).




                                31
Fitzpatrick’s office. Id. at 6. Additionally, Rivas claimed
to have discovered only after the trial that, despite
Mitchell’s testimony that he had examined ‚slides‛ in
coming to the conclusion that Hill most likely died on
the night of Friday, March 27, 1987, and despite
Fitzpatrick’s characterization of these slides in his
summation as ‚autopsy sectional slides,‛ there were in
fact no sectional slides of Hill’s brain in the medical
examiner’s file. Id. at 6–7.

       Rivas also pointed to ‚new evidence,‛ in the form
of an affidavit by Dr. Cyril H. Wecht, an expert in
forensic pathology, who attested that Mitchell’s
calculations of the cause of death were ‚misguided,‛
and that, in his expert opinion, ‚based upon a
reasonable degree of medical certainty, . . . the length of
time between the death of Valerie J. Hill and the time
she was found was less than 48 hours, and more likely
less than 36 hours.‛ Affirmation of Cyril H. Wecht in
Support of Section 440.10 Mot. (emphasis in original). In
other words, according to Wecht, Hill most likely died
between 3:30 p.m. on Saturday, March 28, and 3:30 a.m.
on Sunday, March 29.

       In addition, Rivas alleged that a significant
amount of exculpatory material was withheld from the
defense at trial. Most saliently for our purposes, Rivas
claimed that he never received an affidavit taken from
one of Hill’s neighbors, Mary Lazarski, and a police
report memorializing an interview with another
unnamed neighbor. In her affidavit, Lazarski attested
that, late in the evening of March 28 or early in the
morning of March 29, while she was watching




                            32
‚Saturday Night Live‛ on television, she heard through
her open window ‚a loud shriek or scream *that+
seemed to cut off.‛ Section 440.10 Mot. Exh. 4. She
stated that ‚*t+he voice was a woman’s voice and it
sounded like someone was in trouble and not like
anyone kidding around.‛ Id. Lazarski’s husband also
signed an affidavit confirming that his wife woke him
up and told him about the incident that night. Id. The
unidentified neighbor told police that he heard a dog
barking and a car speed away from the vicinity of Hill’s
house at around 11:00 Saturday night. Id.

       Beyond these documents, Rivas claimed that the
prosecution failed to disclose: (1) a police report
regarding an interview with a neighbor who had seen
Hill intimately embracing a man other than Rivas a few
days prior to her murder, and another interview stating
that Hill had been involved in an intimate relationship
with a man other than Rivas at the time of her death;
(2) information that one of Hill’s neighbors had
previously been arrested for burglary and was known
to peer through windows in the neighborhood;23


       23 This neighbor appears to have been a member of the
family [that] lived upstairs from Hill at 250 Hickok Avenue. The
individual was interviewed by police in connection with Hill’s
murder and admitted to having been arrested and charged in 1985
with a burglary of 248 Hickok Avenue, the apartment later
occupied by Hill. (He was ultimately convicted of petit larceny,
according to the report.) When questioned about his whereabouts
the weekend of Hill’s death, he mentioned having ‚pass*ed+ by
his parents house at 250 Hickok Avenue.‛ Section 440.10 Mot.
Exh. 18. Although it appears that the individual had an alibi for




                               33
(3) information that an employee at the hospital where
Hill worked had been disciplined after Hill made a
complaint against him; (4) information regarding a
purported ‚sexual deviant‛ who was residing in Hill’s
neighborhood; (5) the fact that one of the prosecution
witnesses had a prior conviction; and (6) the affidavit
stating that Patsy Barricella, not Rivas, had committed
the crime. Section 440.10 Mot. at 7–10.

       Finally, Rivas raised a claim of ineffective
assistance of counsel, alleging that his trial attorney,
Calle, had failed to apprise him of his right to testify in
his own defense, and had failed to ‚investigate or
challenge the false and misleading testimony given by
the medical examiner at trial.‛ Mem. Law. Supp. Section
440.10 Mot. at 34–40.

       On April 7, 2000, Acting Onondaga County
Supreme Court Justice John J. Brunetti conducted an
evidentiary hearing in connection with Rivas’s § 440.10
motion. At the close of the hearing, Justice Brunetti
issued an oral ruling denying relief with respect to
Rivas’s Brady claims and one portion of his ineffective-
assistance claim, finding that Rivas had not borne his
burden of persuasion on those points. See Section 440.10
Tr. at 135–41. After taking the remaining issues under


the relevant time period, the very fact that he was questioned by
police and had previously been arrested for suspicious criminal
activity involving Hill’s apartment, if disclosed to the defense,
would likely have provided grounds for challenging the
credibility of his family members, who testified against Rivas.




                               34
       advisement and receiving post-hearing briefs from the
       parties, Justice Brunetti issued a written decision on
       September 8, 2000, denying relief on the remaining
       claims. See People v. Rivas, No. 92–2794 (N.Y. Sup. Ct.
       Sept. 8, 2000).

       [END OF QUOTED PASSAGES FROM OUR 2012
       OPINION]

Rivas, 687 F.3d at 518–30.

E.     Federal Habeas Proceedings

       On June 19, 2002, Rivas filed an amended petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, raising substantially the
same claims that he advanced in his § 440.10 motion. 24 The District
Court dismissed Rivas’s petition as time-barred under 28 U.S.C.
§ 2254(d), see Rivas v. Fischer, No. 01-cv-1891, ECF No. 21 (N.D.N.Y.
Jan. 28, 2005), and we vacated and remanded, holding that
additional fact-finding on the issues of timeliness and actual
innocence was required, see Rivas v. Fischer, 294 F. App’x 677, 678–79
(2d Cir. 2008).

       After an evidentiary hearing, the District Court again
dismissed the petition as untimely. See Rivas v. Fischer, No. 01-cv-

       24 In addition to his ineffective-assistance claim, Rivas re-raised his
various claims under Brady v. Maryland, 373 U.S. 83 (1963), People v. Sandoval, 34
N.Y.2d 371 (1974), and the Due Process Clause. Because we grant Rivas’s petition
on the basis of his ineffective-assistance claim, we need not address these other
claims.




                                       35
1891 (GLS/DEP), 2010 WL 1257935 (N.D.N.Y. Mar. 26, 2010). We
reversed, holding as a matter of first impression in this Circuit that a
‚credible‛ and ‚compelling‛ showing of actual innocence warrants
an equitable exception to AEDPA’s limitation period, allowing a
petitioner to have his otherwise time-barred claims heard by a
federal court. Rivas v. Fischer, 687 F.3d 514, 517–18 (2d Cir. 2012).25
We concluded that Rivas had made such a showing, having
produced essentially unchallenged expert testimony ‚which call*ed+
into serious doubt the central forensic evidence linking him to the
crime,‛ and, as a result, ‚a reasonable juror, apprised of all the
evidence in the record, would more likely than not vote to acquit.‛
Id. at 552. We remanded the cause for Rivas’s petition to be heard on
the merits.

        After hearing oral argument, the District Court nonetheless
denied the petition on the merits. See Rivas v. Fischer, No. 01-cv-1891
(GLS), 2013 WL 4026844 (N.D.N.Y. Aug. 6, 2013). With respect to
Rivas’s ineffective-assistance claim, the District Court held that the
state court’s determination ‚was comprised of both reasonable
factual determinations and a reasonable application of Strickland.‛
Id. at *22. The District Court reasoned that defense counsel’s decision
to rely on Rivas’s incomplete alibi was sound trial strategy because


        25  The Supreme Court subsequently confirmed in McQuiggin v. Perkins,
133 S. Ct. 1924, 1928 (2013), that ‚actual innocence, if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a procedural
bar . . . or . . . expiration of the statute of limitations.‛ See id. at 1931 (citing Rivas,
687 F.3d at 547–48).




                                            36
‚*e+ven if Rivas employed an expert who reached the same
conclusions as Dr. Wecht . . . the time of death would simply be
limited to sometime between 3:30 P.M. on Saturday and 11:30 A.M.
on Monday,‛ and ‚Rivas was, by his own account, alone during a
large portion of Sunday, beginning at 4:00 A.M.‛ Id. at *33. With
respect to prejudice, the District Court held that ‚*a+s discrediting
Dr. Mitchell would not narrow the time of death to a period during
which Rivas could not have committed the murder, so too would it
fail to alleviate the considerable circumstantial evidence suggesting
his involvement in Valerie’s death.‛ Id. at *34.

       This appeal followed.

                              DISCUSSION

       We review a district court’s denial of a petition for a writ of
habeas corpus de novo, Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir.
2014), and we review the underlying state court’s denial under 28
U.S.C. § 2254(d) for an ‚’objectively unreasonable’‛ application of
clearly established federal law, Wiggins v. Smith, 539 U.S. 510, 521
(2003) (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)).26

       Section 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 (‚AEDPA‛), provides ‚*t+he
statutory authority of federal courts to issue habeas corpus relief for


       26See Harrington v. Richter, 562 U.S. 86, 101–02 (2011) (distinguishing
between de novo review and review for objective unreasonableness).




                                     37
persons in state custody.‛ Harrington, 562 U.S. at 97. Section 2254(d)
provides:

              (d) An application for a writ of habeas
              corpus on behalf of a person in custody
              pursuant to the judgment of a State court
              shall not be granted with respect to any
              claim that was adjudicated on the merits in
              State court proceedings unless the
              adjudication of the claim—

              (1) resulted in a decision that was contrary
              to, or involved an unreasonable application
              of, clearly established Federal law, as
              determined by the Supreme Court of the
              United States; or

              (2) resulted in a decision that was based on
              an unreasonable determination of the facts
              in light of the evidence presented in the
              State court proceeding.

28 U.S.C. § 2254(d).

       Rivas contends that the state court’s denial of his ineffective-
assistance claim involved an ‚unreasonable application‛ of
Strickland under Section 2254(d)(1).27 The Supreme Court has
explained that an ‚unreasonable application‛ is one that is ‚more


       27 There is no dispute that Strickland constitutes ‚clearly established
Federal law.‛ Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011).




                                     38
than incorrect or erroneous‚; it must be ‚objectively unreasonable.‛
Wiggins, 539 U.S. at 520–21 (internal quotation marks omitted). In
other words, the state court’s decision must be ‚so lacking in
justification that there was an error well understood and
comprehended in        existing   law beyond     any   possibility for
fairminded disagreement.‛ Harrington, 562 U.S. at 103.

      Strickland has two components:

             First, the defendant must show that
             counsel’s performance was deficient. This
             requires showing that counsel made errors
             so serious that counsel was not functioning
             as the ‘counsel’ guaranteed the defendant
             by the Sixth Amendment. Second, the
             defendant must show that the deficient
             performance prejudiced the defense. This
             requires showing that counsel’s errors were
             so serious as to deprive the defendant of a
             fair trial, a trial whose result is reliable.

466 U.S. at 687. Where, as here, a petitioner’s claim stems from a
‚strategic choice*+ made after less than complete investigation,‛ such
a choice is reasonable ‚precisely to the extent that reasonable
professional judgments support the limitations on investigation.‛ Id.
at 690–91. ‚In other words, counsel has a duty to make reasonable
investigations or to make a reasonable decision that makes
particular investigations unnecessary.‛ Id. at 691.

      In   assessing    whether     counsel   exercised      ‚reasonable
professional judgment,‛ our ‚principal concern . . . is not whether




                                   39
counsel should have presented‛ the additional evidence that further
investigation would have revealed, but rather, ‚whether the
investigation supporting counsel’s decision not to introduce‛ the
additional evidence ‚was itself reasonable.‛ Wiggins, 539 U.S. at 522–
23. In doing so, we look to ‚not only the quantum of evidence
already known to counsel, but also whether the known evidence
would lead a reasonable attorney to investigate further.‛ Id. at 527.

       Finally, our scrutiny of counsel’s performance must be
‚highly deferential‛ because we must apply ‚a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.‛ Strickland, 466 U.S. at 689. Similarly, under
Section 2254(d), ‚the range of reasonable applications is substantial,‛
so when Strickland and Section 2254(d) apply in tandem our review
must be ‚doubly‛ deferential. Harrington, 562 U.S. at 105 (internal
quotation marks omitted). Therefore, the relevant question ‚is not
whether counsel’s actions were reasonable,‛ but instead ‚whether
there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.‛ Id. at 102. Our analysis must ‚determine what
arguments or theories supported . . . the state court’s decision; and
then [we] must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent‛ with
Strickland. Id.

                                  A.

       Rivas contends that his trial counsel, Calle, was ineffective
because he did not investigate further into the basis of Mitchell’s




                                  40
revised findings as to the time of Hill’s death. Rivas argues that
Calle should have, among other things: (1) consulted with or
retained a competing forensic pathologist, who would have found
that   the   revised   findings   were    not    scientifically   reliable;
(2) researched Mitchell’s qualifications and background, which
would have revealed that he had been accused of, and was under
pending investigation for, various forms of misconduct at the time
of trial; (3) reviewed the documents relied upon by Mitchell, which
would have revealed that he based his revised opinion in part on
nonexistent ‚brain slides‛; and (4) used as impeachment evidence a
search warrant application in which a Syracuse police officer swore
that Mitchell had previously estimated the time of Hill’s death as
‚sometime Saturday the 28th of March afternoon, and *S+unday
morning the 29th of March 1987.‛

       At the state 440.10 hearing, Calle attempted to justify his
limited investigation as reflecting a tactical judgment to pursue an
alternative strategy. He testified as follows:

             Q. Did you consider getting an expert
             witness regarding time of death?

             A. No, I didn’t.

             Q. Okay. Could you tell us what your—
             what your thoughts were on that at the
             time of the trial?

             A. I was under the belief—I was under the
             belief that Mr. Rivas did not commit this
             crime.




                                   41
Q. Mm, hmm.

A. I was under the belief that the cause of
death was not a significant issue to his
defense—

Q. Mm, hmm.

A. —because he wasn’t the one who
committed that.

Q. Mm, hmm.

A. I believe that he had an alibi for the
entire weekend.

Q. Mm, hmm.

A. The Friday there was a number of
affidavits of people at bars in Cazenovia,
Albert’s and another bar, I can’t recall the
name, which placed him at that location
some many miles away. In fact, Mr. Rivas
and myself had gone up there conducting
an investigation together and it didn’t seem
to me to be pertinent—

Q. Mm, hmm.

A. —before the trial to determine if in fact
the cause of death was a significant issue,
because six years before the indictment the
coroner, if that’s what you call him, he had
indicated that death was either Saturday or
Sunday and then six years later determined




                    42
            it was Friday and I thought that I would be
            able to impeach his credibility which
            would prevent the District Attorney’s office
            from proving the crime beyond a
            reasonable doubt. . . .

            THE COURT: Can I just interrupt? You
            used a term ‚cause of death‛. I’m
            understanding you to mean time of death
            or am I incorrect?

            THE WITNESS: No, I did mean cause of
            death. That’s why I think I didn’t give
            significant attention to the—the—the
            retention of an expert coroner to refute the
            findings of Dr. Mitchell.

            THE COURT: And because there was you
            felt he was well alibied?

            THE WITNESS: Yes, sir.

Section 440.10 Hearing Tr. at 85–87; see also id. at 94–95, 97–98. The
state collateral review court credited this explanation, finding that
‚*d]efense counsel employed a trial strategy based upon a defense
that defendant was sufficiently alibied for the entire weekend . . .
and that the People would not be able to prove defendant’s guilt
beyond a reasonable doubt whether the jury found that the crime
occurred on Friday night or on Saturday night.‛ People v. Rivas, No.
92–2794, slip op. at 34–35 (N.Y. Sup. Ct. Sept. 8, 2000). The state
court concluded that ‚counsel formulated a trial strategy, it was an




                                 43
objectively reasonable one, and it was executed in a reasonably
competent manner.‛ Id. at 34. We disagree.

       The record demonstrates that Calle relied on three sources in
formulating his ‚strategy‛: (i) Rivas’s alibi, (ii) a newspaper article
reporting that Mitchell had previously estimated the time of death
as Saturday, March 28, or early Sunday morning, March 29, see Trial
Tr. at 895, and (iii) Mitchell’s grand jury testimony, in which he had
stated that a Friday time of death was ‚on the outside edge of
possibility,‛ Trial Tr. at 907, 1062. Rather than justifying a decision
not to investigate Mitchell’s findings further, however, this evidence
would have led any reasonable attorney to conclude exactly the
opposite: further investigation was absolutely vital.28

       Critically, Rivas’s alibi was uncorroborated and incomplete
for a key three-and-a-half hour window—between approximately
9:00 p.m. on Friday, March 27, 1987, and 12:30 a.m. on Saturday,
March 28, 1987. See Trial Tr. at 440, 461–63, 469, 487–88, 849.29 Not


       28 The Supreme Court explained in Strickland that ‚*t+he proper measure
of attorney performance remains simply reasonableness under prevailing
professional norms.‛ 466 U.S. at 688. The American Bar Association standards in
effect in 1993 stated that ‚*d+efense counsel should conduct a prompt
investigation of the circumstances of the case and explore all avenues leading to
facts relevant to the merits of the case.‛ ABA Standards of Criminal Justice:
Prosecution and Defense Functions § 4-4.1(a) (3d ed. 1993); see also Rompilla v.
Beard, 545 U.S. 374, 387 (2005) (finding ABA Standards useful ‚‘guides to
determining what is reasonable’‛ (quoting Wiggins, 539 U.S. at 524)).
       29Indeed, the two witnesses who demonstrate that Rivas’s alibi was
incomplete for these key three-and-a-half hours, Mark Brosh and Beverly




                                       44
coincidentally, the core of the prosecution’s case was that Rivas
killed Hill during this exact time frame. See, e.g., Trial Tr. at 31, 56,
1069, 1083, 1125–26. The indictment charged Rivas with killing Hill
‚on or about the 27th day of March‛; the People’s Bill of Particulars
stated that Rivas was alleged to have killed Hill ‚*o+n March 27th,
1987 between the hours of 9:00pm and 12:00 midnight at 248 Hickok
Avenue in the City of Syracuse‛; the prosecution argued repeatedly
in its opening and its closing that Rivas killed Hill on Friday, March
27, 1987, Trial Tr. at 31, 56, 1069, 1083, 1105, 1125–26; indeed, it
argued that Rivas’s alibi was ‚complete‛ for Saturday night, March
28, 1987, precisely because he had concocted it, having murdered
Hill on Friday, March 27, Trial Tr. at 55; and finally the Certificate of
Conviction states that Rivas was indicted for, and convicted of,
second-degree murder ‚committed on March 27, 1987.‛ We are not
persuaded by the District Court’s speculation that counsel may not
have wanted to make an issue of ‚a narrowed time of death‛
because of the ‚risk of fixing the jury’s attention on a time frame
during which, by his own account, Rivas’ whereabouts could not be
corroborated [i.e., between 4:00 a.m. and 11:00 a.m. Sunday morning
when Rivas was sleeping+.‛ Rivas, 2013 WL 4026844, at *33. At no
point did the prosecution argue that Rivas murdered Hill on
Saturday or Sunday. The District Court’s conjecture regarding
counsel’s motivations—which appears nowhere in the state


Dorland, were listed on Rivas’s own notice of alibi, albeit apparently misspelled.
See Notice of Alibi, People v. Rivas, Index No. 92-2794 (Onondaga Cnty. Ct.),
available at Rivas v. Fischer, No. 01-cv-1891, ECF No. 55-2 at 42 (N.D.N.Y.).




                                       45
collateral review court’s decision or in Calle’s testimony at the state
440.10 hearing—resembles ‚more a post hoc rationalization of
counsel’s     conduct      than    an     accurate     description      of   [his]
deliberations.‛ Wiggins, 539 U.S. at 526–27.

       The case therefore turned on rebutting the prosecution’s
theory as to the time of death.30 Inexplicably, however, Calle relied
on a strategy that was completely divorced from this central issue:
He relied on an alibi defense when, in fact, Rivas did not have an
alibi for the precise time that the prosecution claimed Rivas had
murdered Hill. In effect, Calle’s alibi defense amounted to no
defense at all. No ‚fairminded jurist[],‛ Harrington, 562 U.S. at 101,
could agree that this decision constituted ‚sound trial strategy,‛
Strickland, 466 U.S. at 689 (internal quotation marks omitted).
Accordingly, the state court’s conclusion to the contrary was
objectively unreasonable. See Wiggins, 539 U.S. at 521.

       As to the newspaper article and grand jury testimony, this
evidence also compelled further investigation. By Calle’s own
admission, this evidence armed him with the knowledge that
Mitchell had apparently changed his estimate as to the time of death
six years after the fact, seemingly on the basis of no new evidence.

       30 As we previously stated, ‚it was the People’s position that Rivas’s alibi
was so strong on Saturday night precisely because he had concocted it, having
murdered Hill the night before. Therefore, the prosecution’s case rested almost
entirely on the testimony of Mitchell, the medical examiner, to persuade the jury
that Hill died on Friday night and not on Saturday as Mitchell had initially
determined.‛ Rivas, 687 F.3d at 524.




                                        46
See Section 440.10 Hearing Tr. at 85–87. Coupled with the fact that
the prosecution’s case turned entirely on linking Hill’s death to a
time when Rivas had an incomplete alibi, this knowledge would
have led any reasonable attorney to conclude that investigating the
basis of Mitchell’s new findings was essential.31 Rather than
investigate further, however, counsel’s investigation inexplicably
stopped there, a decision Calle was unable to justify as consistent
with his constitutional ‚duty to make reasonable investigations or to
make a reasonable decision that makes particular investigations
unnecessary.‛ Strickland, 466 U.S. at 691. Considering all the
circumstances, no ‚fairminded jurist[]‛ could agree that the
quantum of evidence known to Calle at the time justified his
decision to forego further investigation and rely instead on a
critically deficient alibi and two perfunctory items of impeachment
evidence that only scratched the surface of Mitchell’s revised
findings. Harrington, 562 U.S. at 101; see also Wiggins, 539 U.S. at 527
(‚Strickland does not establish that a cursory investigation
automatically justifies a tactical decision . . . .‛).




       31  The Supreme Court has ‚recognized the threat to fair criminal trials
posed by the potential for incompetent or fraudulent prosecution forensics
experts. . . . This threat is minimized when the defense retains a competent expert
to counter the testimony of the prosecution’s expert witnesses.‛ Hinton v.
Alabama, 134 S. Ct. 1081, 1090 (2014); see also id. at 1088 (‚‘Criminal cases will arise
where the only reasonable and available defense strategy requires consultation
with experts or introduction of expert evidence.’‛ (quoting Harrington, 562 U.S. at
106)).




                                          47
       In sum, this is the exceedingly rare and exceptional case
where the state court’s decision involved an ‚unreasonable
application‛ of Strickland. 28 U.S.C. § 2254(d).

                                   B.

       Having established deficient performance, Rivas must also
show ‚a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.‛
Strickland, 466 U.S. at 694. It is well established that ‚*a+ reasonable
probability is a probability sufficient to undermine confidence in the
outcome.‛ Id. ‚When a defendant challenges a conviction, the
question is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt respecting
guilt.‛ Id. at 695.

       We previously held that Rivas had presented a ‚credible‛ and
‚compelling‛ claim of actual innocence for purposes of establishing
an equitable exception to AEDPA’s limitations period—that is, Rivas
established that ‚a reasonable juror, apprised of all the evidence in
the record, would more likely than not vote to acquit.‛ Rivas, 687
F.3d at 552. The Supreme Court has held that this standard, which
we previously concluded Rivas had met, requires ‚a stronger
showing than that needed to establish prejudice‛ under Strickland.
Schlup v. Delo, 513 U.S. 298, 327 & n.45 (1995). Accordingly, for
substantially the same reasons, we now hold that Rivas has
established that, absent his counsel’s unprofessional errors and
omissions, a factfinder would have had a reasonable doubt




                                   48
respecting his guilt. See Strickland, 466 U.S. at 695.32 Specifically, as
we previously observed, those reasons were as follows:

                      Ultimately . . . it does not matter how
               much indirect, circumstantial evidence the
               State amassed to suggest that Rivas killed
               Hill on Friday night, if she in fact died [at
               another time] . . . . Therefore, the question
               turns almost entirely on the relative
               credibility of the prosecution’s expert,
               Mitchell, and Rivas’s expert, Wecht. In this
               regard, we stress once more that the State,
               despite having the opportunity to challenge
               Wecht’s [affirmation before the state
               collateral review court], or to [submit] its
               own expert to support Mitchell’s
               conclusions, failed to raise any serious
               question about Wecht’s qualifications or
               conclusions. We therefore are left to weigh
               the unchallenged [affirmation] of a
               renowned       forensic      pathologist—who
               concluded ‚to a reasonable degree of
               medical certainty‛ that Hill could not have


       32 As we previously noted, our review is limited to the record before the
state court that adjudicated Rivas’s claim. See supra note 1 (quoting Pinholster, 131
S. Ct. 1398). For purposes of the present appeal we do not rely on Dr. Wecht’s
testimony from the federal evidentiary hearing but note that Dr. Wecht’s
unchallenged affirmation, which was submitted to the state collateral review
court, reached the same conclusions. Aff. of Cyril H. Wecht, dated June 11, 1999,
¶ 17, available at Rivas v. Fischer, No. 01-cv-1891, ECF No. 56-2 at 23 (N.D.N.Y.
Sept. 18, 2009).




                                         49
died on Friday—against the testimony of a
disgraced and allegedly beholden medical
examiner, who initially told police that Hill
died on Saturday evening, later told the
grand jury that it was on the ‚outside edge
of possibility‛ that she died on Friday
evening, and finally testified, without
reference to any degree of medical
certainty, that it was ‚more likely‛ that she
died on Friday night. . . .

       Finally, though we do not suggest
that Mitchell intentionally lied on the stand
or that District Attorney Fitzpatrick
suborned perjury, we think a reasonable
juror would discredit Mitchell’s testimony
upon learning that he had been subject to
numerous investigations for misconduct
and official malfeasance and was under
investigation for potentially criminal
misconduct at the very moment that he was
providing testimony in the criminal trial. In
short, based on the record before us, any
reasonable juror would almost certainly
credit Wecht over Mitchell and would
therefore, more likely than not, harbor a
reasonable doubt about Rivas’s guilt.




                     50
Rivas, 687 F.3d at 546.33

       Although the state collateral review court did not make any
express findings as to prejudice, we are required to assume for the
purpose of argument that it would have denied Rivas’s ineffective-
assistance claim also on that basis. See Harrington, 562 U.S. at 98
(holding that habeas petitioner must show ‚there was no reasonable
basis for the state court to deny relief‛ regardless of ‚whether or not
the state court reveals which of the elements in a multipart claim it


       33  The District Court stated that ‚the extent to which Dr. Mitchell’s
investigation was public knowledge . . . is unclear.‛ Rivas, 2013 WL 4026844, at
*27. There were, however, numerous news articles predating Rivas’s March 1993
trial reporting on investigations into Dr. Mitchell and his office. See, e.g., John
O’Brien, Mitchell’s Policies Studied by Miller, SYRACUSE POST-STANDARD, Nov. 25,
1989, at B1 (‚The Onondaga County health commissioner has begun reviewing
the policies and performance of the medical examiner’s office, in light of recent
publicity about questionable activities in the office.‛); Coroner Boiling Bones in
Parking Lot: Report, SCHENECTADY GAZETTE, Oct. 28, 1989, at 47 (‚Medical
Examiner Dr. Erik Mitchell has drawn complaints recently for the way he runs
his office. Last month, Mitchell was directed by County Executive Nick Pirro to
halt his practice of donating body parts for medical research without the consent
of the dead person’s family. . . . Pirro has appointed an independent panel of
three forensic pathologists to review *Mitchell’s handling of a separate+ case.‛);
see also William Kates, Who Really Killed Nanette Gordon?, THE JOURNAL, Oct. 9,
1989, at 1 (‚The *victim’s+ family has assailed the competency of Mitchell’s
investigation and questioned whether the medical examiner could be objective
because he was once a suspect in Gordon’s death.‛); Jim O’Hara, Medical
Examiner Denies He Ordered Staff to Dice Body Parts, SYRACUSE HERALD-JOURNAL,
Mar. 5, 1993, at A1 (‚Onondaga County Medical Examiner Erik Mitchell today
dismissed as ‘lies, insults and slander’ a series of allegations leveled against him
by employees, including a complaint he had staff dice brains and other body
parts to be flushed away.‛).




                                        51
found insufficient‛).34 To the extent it would have so ruled, we
conclude that such a decision would have been objectively
unreasonable for the reasons set forth above and in our prior
opinion.




       34   In denying the other portions of Rivas’s § 440.10 motion, the state
collateral review court held that ‚defendant cannot show that the fact that brain
‘tissue’ slides never existed impacted the jury verdict, because it is still not
apparent that Dr. Mitchell wasn’t referring to a review of the photographic slides
that were contained in the medical examiner’s file.‛ People v. Rivas, No. 92–2794,
slip op. at 8 (N.Y. Sup. Ct. Sept. 8, 2000). This argument, however, overlooks the
fact that the prosecutor told the jury in his closing statement that Dr. Mitchell
had ‚review[ed] autopsy sectional slides of the brain.‛ Trial Tr. at 1083; see also
Rivas, 687 F.3d at 525 n.19. It also overlooks the fact that Dr. Wecht’s
unchallenged affirmation states that ‚[d]ecomposition of internal organs is
highly variable, and cannot be used for the determination of the time of
death. . . . The examination of the brain or brain slides is an unreliable aid in
estimating the time of death.‛ Aff. of Cyril H. Wecht, dated June 11, 1999, ¶¶ 10,
14, available at Rivas v. Fischer, No. 01-cv-1891, ECF No. 56-2 at 21–22 (N.D.N.Y.
Sept. 18, 2009); see also Rivas, 687 F.3d at 525 n.19.
         The state collateral review court also held that the investigation of Dr.
Mitchell ‚revealed misconduct relative to disposal of bodies and body parts by
the office, and while those activities may have contributed to Dr. Mitchell’s
stepping down from his office, there have never been any allegations that he
testified falsely in any trials.‛ People v. Rivas, No. 92–2794, slip op. at 13 (N.Y.
Sup. Ct. Sept. 8, 2000). As noted above and in our prior opinion, however, this
material would have been invaluable in impeaching Dr. Mitchell’s credibility,
not necessarily because of the nature of the investigations themselves, but
because of Dr. Mitchell’s possible conflict of interest in rendering his opinions in
Rivas’s prosecution while under pending investigation by state and local
investigators, including possibly those who were prosecuting Rivas. See Rivas,
687 F.3d at 546.




                                        52
                           CONCLUSION

      To summarize: We hold that it was an unreasonable
application of Strickland for the state collateral review court to deny
Rivas’s claim of ineffective assistance of counsel. Accordingly, we

      (1) REVERSE the judgment of the District Court, and

      (2) REMAND the cause.

      On remand, the District Court shall issue a writ of habeas
corpus to Rivas on the sixtieth calendar day after the issuance of our
mandate unless New York State has, by that time, taken concrete
and substantial steps expeditiously to retry Rivas.

      The mandate shall issue forthwith. If further proceedings
arising from Rivas’s habeas petition are required in this Court, the
parties shall inform the Clerk of this Court. Jurisdiction will then be
automatically restored to this Court without need for a new notice of
appeal. After jurisdiction is restored, the Clerk shall set an expedited
briefing schedule, and, in the interest of judicial economy, the matter
will then be heard by this panel on letter briefs.




                                   53
