No. 10"854

I~[CHARD ROSARIO

Petitioner,

V.

PATRICK GRIFFIN, SUPERINTENDENT, SOUTHPORTCORRECTIONAL FACILITY, AND ANDREW M. CUOMO,

ATTORNEY GENERAL OF NEW YORK

Respondents.

On Petition For A Writ Of Certiorari To TheUnited States Court Of Appeals

For The Second Circuit

BRIEF OF THE NATIONAL ASSOCIATION OFLEGAL INVESTIGATORS AND NATIONAL

DEFENDER INVESTIGATOR ASSOCIATION ASAM/GI GURZAE IN SUPPORT OF PETITIONER

[RINA Y. DMITRIEVAJENNER & BLOCK LLP353 N. Clark StreetChicago, IL 60654(312) 840-7211

MARC A. GOLDMANCounsel of Record

LESLIE V. POPE*JENNER & BLOCK LLP1099 New York Avenue, NWSuite 900Washington, DC 20001(202) 639-6000mgoldman@jenner.com

January 28, 2011 *Admitted only in VA, not admitted in theDistrict of Columbia.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ii

INTERESTS OF AMICI ..............................................1

ARGUMENT ...............................................................3

I. An Adequate Pretrial Investigation IsThe Key To The EffectiveRepresentation Of CriminalDefendants ........................................................3

A. Factual Investigation Is TheMost Critical Stage Of ALawyer’s Preparation ............................3

B. No Pretrial Investigation IsAdequate Without InterviewingAll Potential Witnesses .........................6

II. The Pre-Trial Investigation ConductedBy Rosario’s Counsel Was ObjectivelyUnreasonable Under The PrevailingProfessional Standards .....................................9

III. The Second Circuit’s Decision CreatesAn Important Recurring Issue andConflicts With Decisions Of OtherCircuits ............................................................11

CONCLUSION ..........................................................16

iiTABLE OF AUTHORITIES

CASES

Bigelow y. Ha viland, 576 F.3d 284 (6th Cir.2009) ....................................................... 2, 13, 14

B]ackburn y. foltz, 828 F.2d 1177 (6th Cir.1987) .................................................................14

Bryant v. Scott, 28 F.3d 1411 (5th Cir.1994) .................................................................15

Grooms v. So]em, 923 F.2d 88 (8th Cir.1991) .................................................................15

Hendersen v. Sargent, 926 F.2d 706 (8thCir. 1991) ............................................................7

House v. Balkeom, 725 F.2d 608 (llth Cir.1984) ...................................................................4

Moore v. United States, 432 F.2d 730 (3dCir. 1970) ..........................................................16

Porter v. MeCollum, 130 S. Ct. 447 (2009) ...........13

Sears v. Upton, 130 S. Ct. 3259 (2010) ................13

Strickland v. Washington, 466 U.S. 668(1984) ......................................................2, 11, 12

Tay]or v. I]]inois, 484 U.S. 400 (1988) ....................4

United States v. Nixon, 418 U.S. 683 (1974) .........4

Wiggins v. Smith, 539 U.S. 510 (2003) .................13

Wi]]iams v. Taylor, 529 U.S. 362 (2000) ..............12

OTHER AUTHORITIES111

ABA Standards for Criminal Justice:Prosecution Function and DefenseFunction Standard (3d ed. 1993) ......................5

F. Lee Bailey & Henry B. Rothblatt,Investigation And Preparation OfCriminal Cases (2d ed. 1985) ....................6, 7, 8

Mary Sue Barkus & Paul Marcus, TheRight To Counsel In Criminal Cases, ANational Crisis, 57 Hastings L.J. 1031(2006) ..................................................................4

California Comm’n On The FairAdministration Of Justice, Report AndRecommendations On Funding OfDefense Services In California (Apr. 14,2008) .................................................................15

Kathleen Cunningham, Body Language andIndicators of Deception, 35 LegalInvestigator 4 (2010) .........................................8

Brandon L. Garrett, Judging Innocence, 108Colum. L. Rev. 55 (2008) ...................................8

Samuel R. Gross et al., Exonerations in theUnited States 1989 Through 2003, 95 J.Crim. L. & Criminology 523 (2005) ...................8

1 Randy Hertz et al., Trial Manual forDefense Attorneys in Juvenile Court(1991) ..............................................................5, 6

iv

National Legal Aid & Defender Ass’n,Performance Guidelinos For CriminalDefense Representation, Guideline(199~) .................................................................. 5

Brandon A. Perron, Uncovering ReasonableDoubt: The Component Method (1998) .........6, 8

Jenny Roberts, Too Little, Too Late:Ineffective Assistance of Counsel, TheDuty to Investigate, and PretrialDiscovery in Criminal Cases, 31Fordham Urb. L.~I. 1097 (2004) .........................7

INTERESTS OF AMICI1

The National Association of Legal Investigators,Inc. ("NALI"), established in 1967, is a nationwideorganization of investigative professionals who areactively engaged in criminal defense and plaintiffpersonal injury investigations. Members of NALI,both in-house investigators and licensed privateinvestigators, assist attorneys in developingtestimonial, documentary, forensic, and physicalevidence. NALI investigators are united by acommons goal: to enhance and elevate the professionby establishing a forum and platform from which toprovide professional development and continuingeducation to legal investigators. The association’sCertified Legal Investigator® designation isrecognized throughout the country as one of the mostrespected professional credentials available to thelegal investigator.

The National Defender Investigator Association("NDIA") is an international association ofinvestigators and other professionals who areengaged in criminal defense work on behalf ofindigent defendants. NDIA members assist publicdefenders and court-appointed counsel in conductingfactual investigations and provide continuing

1 Pursuant to Supreme Court Rule 37.6, ~m]ci state that nocounsel for any party authored this brief in whole or in part andthat no entity or person, aside from ~mici, their members, andtheir counsel, made any monetary contribution towards thepreparation and submission of this brief. Counsel of record forall parties received timely notice and have consented to thefiling of tills brief in letters on file with the Clerk’s office.

2education to criminal defense personnel throughoutthe United States and its territories.

Amici believe that their extensive experience withpre-trial factual investigations in criminal defensematters will enable them to contribute substantiallyto this Court’s evaluation of Rosario’s petition forcertiorari. Rosario’s petition asks this Court to grantcertiorari to overturn a Second Circuit decision thatdenied Rosario’s claim that he was entitled to habeasrelief because Rosario’s lawyers failed to conduct anadequate pre-trial investigation into his alibi. Amiciwill explain that investigations are fundamentallyimportant to the legal process and that theprevailing norms for investigations requireinterviewing all alibi witnesses. The Second Circuit’sdecision to deny habeas relief in a case where mostalibi witnesses were not interviewed sets up a legalframework under which courts can apply the NewYork ineffectiveness standard without also applyingthe standard from Striekland v. W~shington, 466U.S. 668, 688 (1984), creating a risk of many futuredecisions that contravene Strickland and permitconvictions to stand despite inadequate pre-trialinvestigations. It also creates a split with the SixthCircuit’s decision in Bigelow v. Haviland, 576 F.3d284 (6th Cir. 2009).

For these reasons, amiei urge this Court to grantcertiorari and make clear that habeas relief iswarranted when a court applies the New Yorkeffectivenessstandard without also applying~trickland.

3ARGUMENT

I. An Adequate Pretrial Investigation Is The KeyTo The Effective Representation Of CriminalDefendants.

As Rosario convincingly argues in his Petition,New York’s "meaningful representation" standardpermits a finding of effectiveness in a significantnumber of cases in which the counsel’s performanceotherwise would be found constitutionallyinadequate under Striekland. Pet. at 20-38. In thiscase, the Second Circuit denied habeas relief where aNew York court applied only the state ineffective-of-assistance standard even though under thatstandard, counsel may avoid a finding of ineffectiveassistance despite having conducted an objectivelyincompetent pretrial investigation that is below clearprofessional standards and that deprived the accusedof important potentially exonerating evidence.Because amici know first-hand that most criminalcases are won or lost on the basis of facts rather thancounsel’s courtroom skills, amici urge this Court toreview this case and reject the notion that criminaldefense counsel can provide effective assistancethrough strong courtroom performance intheabsence of an adequate pre-trial investigation.

A. Factual Investigation Is The Most CriticalStage Of A Lawyer’s Preparation.

This Court has previously explained that, in ouradversary system, "[T]he need to develop all relevantfacts ... is both fundamental and comprehensive,"and that "[T]he ends of criminal justice would bedefeated if judgments were to be founded on a partial

4or speculative presentation of the facts." L~nitedStates v. Nixon, 418 U.S. 683, 709 (1974) (emphasisadded); Taylor v. Illinois, 484 U.$. 400, 408-09(1988).

Because of the centrality of facts, pretrialinvestigation "is, perhaps, the most critical stage of alawyer’s preparation." House v. Ba]kcom, 725 F.2d608, 618 (11th Cir. 1984) (reversing denial of habeasrelief based on inadequate pretrial investigation). Inconducting a thorough pre-trial investigation, trialcounsel or an investigator may uncover potentialalibi witnesses, alternate suspects, or policemisconduct. Counsel also may uncover documentaryor scientific evidence that will support a defendant’salibi, such as surveillance camera footage, bustickets or train tickets purchased by the accused atthe time of the crime, restaurant or store receipts, orphone call records. Because of the importance of pre-trial investigation, a 2002 report concluded that apublic defender "cannot put up a fair defense" to adistrict attorney’s charges without adequateinvestigative resources. Mary Sue Barkus & PaulMarcus, The Hight To Counsel In Criminal Cases, ANational Crisis, 57 Hastings L.J. 1031, 1099 (2006).As one trial manual designed to educate lawyersexplains:

most cases turn primarily on the presentation ofevidence rather than legal argument. The factsare counsel’s most important asset not only inlitigating the case at trial but also in every otherfunction counsel performs: urging the prosecutorto drop or reduce charges, negotiating a pleabargain with the prosecutor, urging a favorable

5sentencing recommendation on a probation officeror judge. Although there are additionalinstruments for fact-gathering, such as discovery... and motion practice, ... they are far lessreliable and comprehensive than the time-honored practice of hitting the streets and lookingfor witnesses.

1 Randy Hertz et a]., Trial Manual for DefenseAttorneys in Juvenile Court § 8.01 (1991).

In setting forth their professional standards,attorneys’ organizations have recognizedtheimportance of a thorough factual investigation.Forinstance, Standard 4-4.1 of the AmericanBarAssociation states that defense counsel has a duty toinvestigate and "should conduct a promptinvestigation of the circumstances of the case andexplore all avenues leading to facts relevant to themerits of the case and the penalty in the event ofconviction." ABA Standards for Criminal Justice:Prosecution Function and Defense FunctionStandard 4-4.1 (3d ed. 1993); see also id. comment("Failure to make adequate pretrial investigationand preparation may also be grounds for findingineffective assistance of counsel."). Likewise,performance guidelines authored by the NationalLegal Aid & Defender Association state that,"Counsel has a duty to conduct an independentinvestigation .... as promptly as possible." NationalLegal Aid & Defender Ass’n, Performance GuidelinesFor Criminal Defense Representation, Guideline 4.1(1995).

6B. No Pretrial Investigation Is Adequate

Without Interviewing All Potential Witnesses.

Locating, interviewing, and taking the statementsof all potential witnesses, especially alibi witnesses,is a fundamental and necessary component of anyadequate criminal investigation. Brandon A. Perron,Uncovering ReasonableDoubt." The ComponentMethod 7-3 (1998). Under the prew~ilingprofessional norms forcriminal defense, suchinvestigative work should begin as soon as counsel isretained. F. Lee Bailey & Henry B. Rothblatt,Investigation And Preparation Of Criminal Cases §1:10 (2d ed. 1985).

In a standard pre-trial investigation, counsel orthe investigator identifies all potential witnesses byinterviewing the accused and reviewing the policefile. Perron at 7-3. The highest priority witnessesare those identified by the accused as his or her alibiwitnesses, even if counsel is skeptical of the alibi,because every client "is entitled at the very least, tothe small comfort of knowing his own lawyer doesnot disbelieve him without a fair inquiry." Bailey &Rothblatt §§ 1:12, 7:9. If there are disinterested alibiwitnesses "who can place the accused somewhereelse" at the time of the crime, such witnesses areinterviewed first and asked to produce any recordsthat can support their testimony. Id. § 7:9. Locatingand interviewing all potential alibi witnesses isimportant because the strength of an alibi defensedepends on the detailed recollection of witnesses ofwhat they and the defendant were doing at theprecise time that the crime took place. Trial Manual§8.03.

7While alibi witnesses should be counsel’s top

priority, the prevailing professional standards callfor a prompt identification and interviewing ofpotential witnesses because counsel "can never besure what facts will turn up or what leads maydevelop." Bailey & Rothblatt § 6:3. As the EighthCircuit has recognized, "Counsel has a duty . . . toinvestigate all witnesses who allegedly possessedknowledge concerning [the defendant’s] guilt orinnocence." Hendersen v. Sargent, 926 F.2d 706,711-12 (Sth Cir. 1991) (affirming the grant of post-conviction relief based on ineffective assistance ofcounsel) (emphasis added; alternations in original;internal quotation marks omitted); see JennyRoberts, Too Little, Too Late: Ineffective Assistanceof Counsel, The Duty to Investigate, and PretrialDiscovery in Criminal Cases, 31 Fordham Urb. L.J.1097, 1109-10 (2004).

Only by interviewing all potential witnesses can adefense counsel assess the strengths and weaknessesof each potential witness and make an informedstrategic decision about "which witnesses willwithstand cross-examination and which are likely toimpress the jury." Bailey & Rothblatt § 11:9. Byidentifying and interviewing all potential witnesses,counsel also avoids placing an undue reliance on thetestimony of a single witness at trial, who may beimpeached by the prosecution. Id. § 6:5. Rather,each witness’s statement is viewed "as a lead to besubstantiated by additional evidence." Id. The leadsprovided by a witness may include not only otherwitnesses but also documentary evidence, such as adate book, movie ticket, or e-mail, that corroborate

8the witness’s recollection and the alibi. Perron at 7-7, 7-6.

Witnesses should be interviewed in person,rather than over the telephone. When counsel or aninvestigator interviews a witness in person, he or shecan observe the witness’s appearance, manner ofspeaking, and body language. As a result, counsel orthe investigator can make a much better assessmentof whether a particular witness is credible andshould be called to testify at trial. KathleenCunningham, Body Language and Indicators ofDeception, 35 Legal Investigator 4 (2010); Bailey &Rothblatt § 3:1.

Interviewing all potential witnesses isparticularly important when the prosecution’s caserests entirely on eye-witness testimony, whichseveral studies have demonstrated is notoriouslyunreliable. For instance, one study of exonerations inthe United States from 1989 through 2003 reportedthat 219 out of 340 wrongful convictions, or nearly65%, were based on eye-witness misidentification.Samuel R. Gross et al., Exonerations in the UnitedStates 1989 Through 2003, 95 J. Crim. L. &Criminology 523, 542-47 (2005). Another study ofexonerations based on post-conviction DNA testingreported an even higher rate: "The overwhelmingnumber of convictions of the innocent involvedeyewitness identification - 158 of 200 cases (79%)."Soe Brandon L. Garrett, Judging Innocence, 108Colum. L. Rev. 55, 78 (2008). To effectively rebuterroneous eyewitness testimony, counsel often needsto present several defense witnesses.

9II. The Pre-Trial Investigation Conducted By

Rosario’s Counsel Was Objectively UnreasonableUnder The Prevailing Professional Standards.

The limited pretrial investigation conducted byRosario’s counsel fell far below the prevailingprofessional standards for a criminal defenseinvestigation. Rosario was arrested solely on thebasis of two stranger eyewitness identifications from"mug books," which are, as noted above, notoriouslyunreliable evidence. Pet. App. 102a. After his arrestRosario consistently maintained to the police, hislawyers, and the defense investigator assigned to hiscase that he was in Florida on the day of the NewYork murder, and he provided the police, hislawyers, and the defense investigator with the namesof thirteen people who could place him in Floridaduring the month of June. Despite having anextensive list of potential alibi witnesses, Rosario’slawyers contacted only a few of them and spoke tothem only over the phone despite acknowledging thatin this case it was "critical" for an investigator to beable to meet the witnesses "in person and have aface-to-face conversation." Id. at 26a.

Besides failing to contact all the known alibiwitnesses whom Rosario had identified, Rosario’strial counsel failed to investigate whether otherpotential alibi witnesses existed. One of theadditional alibi witnesses identified by Rosario,Fernando Torres, testified at the post-convictionhearing that he and Rosario went shopping for carparts on the day of the murder and that, shortlythereafter, he invited Rosario to visit a church.Hence, a thorough investigation would have included

10interviewing people at the car shop and at the churchwho might have remembered seeing Rosario, thuscollaborating his alibi.

Rosario’s lawyers also utterly neglected to collectany documentary evidence of Rosario’s presence inFlorida in June of 1996. During the evidentiaryhearing on Rosario’s ineffectiveness of counsel claim,Rosario’s first lawyer admitted that she failed torequest Western Union records of wire transfers thatRosario said were sent to him in Florida from his ex"fiance~ in New York. These records weresubsequently destroyed and thus were unavailablefor trial. Rosario’s lawyers also made no effortwhatsoever to collect other documentary evidence ofRosario’s presence in Florida in June 1996, such asphone records, store receipts, banking records, orsecurity camera footage from Florida gasolinestations or stores. The failure of Rosario’s lawyers toconduct an adequate investigation cannot beexplained by a lack of funds. They were awardedfees from the court to conduct an investigation. Pet.at 8.

Because the investigation was inadequate,Rosario’s second lawyer was forced to rely on two ofRosario’s close friends - John Torres and JenineSeda - to establish Rosario’s abili. This lawyer laterexplained that he relied on these witnesses, notbecause they were the best witnesses, but because"they were the only two" available. Pet. App. at 5a.Had Rosario’s alibi defense been properlyinvestigated, at least nino alibi witnesses, several ofwhom were not friendly with Rosario, couM havebeen presented at trial. Soe Pet. App. 22a (Straub, J.,

11dissenting). Each of these witnesses had thepotential to corroborate Rosario’s alibi and contributeadditional facts about Rosario’s stay in Florida.

Based on arnicls extensive experience withdefense investigations, it is arnicis opinion thatRosario’s lawyers’ failure to adequately investigateRosario’s alibi was indeed a "colossal failure" that"plainly falls below acceptable profession standards,"Pet. App. 22a (Straub, J., dissenting), and that thereis a "reasonable probability" sufficient to "undermineconfidence" in Rosario’s conviction that but forRosario’s counsels’ failure to investigate his alibidefense, Rosario would not have been convicted.Strickland, 466 U.S. at 694.

III. The Second Circuit’s Decision Creates AnImportant Recurring Issue and Conflicts WithDecisions Of Other Circuits.

Neither the Second Circuit nor any other courtdisagreed that there is a "reasonable probability" theresult would have been different with an effectiveinvestigation. The Second Circuit found no habeasrelief to be warranted, because: (1) the New Yorkstandard was consistent with Strick]~nd, and (2)under a deferential review, the New York courtproperly applied StrJck]~nd. But there was no wayfor the district court or Second Circuit to concludethat the New York court correctly applied Strick]andsince the New York court did not apply Strick]and atall. Certainly, the federal courts could not findcorrect application of Strick]and on the basis ofdeference to a decision that the New York courtnever made.

12The New York court never asked Strickland’~ key

question: whether there is a "probability that, but forcounsel’s unprofessional errors, the result of theproceedings would have been different." Strick]and,466 U.S. at 703 (quotation marks omitted). Instead,as part of a totality-of-the-circumstances inquiry, thecourt applied the standard for newly discoveredevidence and asked whether Rosario would havebeen entitled to a new trial if he had argued for oneon the basis of discovery of these witnesses. Pet. at14; Pet. App. 227a. In Strickland itself, this Courtrecognized that this is a different question than theconstitutional ineffectiveness inquiry. Strickland,466 U.S. at 694. Yet the state court used it as a basisto deny post-conviction relief. And the SecondCircuit held that the district court properly deferredto that decision as if the state court had beenapplying Strickland See Williams v. Taylor, 529U.S. 362, 405-06 (2000) (setting forth separateinquiries on habeas after federal court has concludedthat the state court is applying the correct governingrule).

After the Second Circuit’s decision, state courtswill be able to continue to apply the New Yorkstandard alone and federal courts will defer to theirdecisions on habeas review as if they had appliedStrick]and Such deference will lead to frequentunconstitutional results, because, as the SecondCircuit acknowledged, there is a significant chancethat New York courts will interpret the New Yorkeffectivenessstandard to require less thanStrickland.

13The Second Circuit’s decision will not only lead to

continuing decisions inconsistent with Str]cMandbut will also lead to results, like the one here, thatconflict with rulings of this Court requiringadequate defense investigations and with results insimilar habeas cases in other circuits. This Courthas consistently reversed denials of post-convictionrelief where defense counsel failed to conduct anadequate factual investigation thereby prejudicingthe accused. For instance, in Wiggins v. Sm~’t]~, 539U.S. 510, 524 (2003), this Court reversed denial ofhabeas relief, finding that counsels’ decision not toexpand their investigation of defendant’s life historybeyond the presentence investigation report anddepartment of social services records fell short ofprevailing professional standards. Most recently, inSears v. Upton, 130 S. Ct. 3259, 3264 (2010), thisCourt vacated the denial of post-conviction reliefwhere the trial counsel conducted only a "cursory"investigation into mitigation evidence -"limited toone day or less, talking to witnesses selected by the[accused]’s mother." See also Porter v. McCollum,130 S. Ct. 447, 453 (2009) (reversing denial of habeasrelief where defense counsel "did not even take thefirst step of interviewing witnesses or requestingrecords").

Further, while the Second Circuit upheld a denialof habeas relief here despite counsel’s failure tointerview at least nine alibi witnesses, other circuitshave made plain that failure to interview potentialalibi witnesses constitutes ineffective assistance. Pet.App. 4a, 22a. For instance, in Bigelow y. Haviland,576 F.3d 284 (6th Cir. 2009), the defendant, Michael

14Bigelow, consistently maintained, like Rosario :here,that he was in another city 150 miles away on theday of the crime. Like here, the prosecution’s caseagainst Bigelow rested solely on the eyewitnesstestimony. Even though Bigelow identified severalalibi witnesses, his lawyer called only one of them attrial, and the alibi defense failed. State courts deniedBigelow’s ineffective assistance of counsel claim, butthe Sixth Circuit held habeas relief was warranted.The Sixth Circuit ruled that state courtsunreasonably applied Strickland because Bigelow’scounsel’s failure to take "minimal additionalinvestigative steps" - such as interviewing at leastthree additional alibi witnesses - fell below theprevailing professional standards and prejudicedBigelow: "In a case in which everything turned onthe alibi defense - and in which the prosecution’sability to place Bigelow at the scene of the crimerested entirely on conflicting eyewitness testimony -[Bigelow’s counsel] had ample reasons to do morethan he did with the one alibi witness that his clientfound .... lilt is difficult to see how [counsel] couldhave failed to realize that without seekinginformation that could either corroborate the alibi orcontextualize it for the jury, he was seriouslycompromise[ing] [his] opportunity to present an alibidefense." 576 F.3d at 289 (internal citations omitted;first three brackets in original). The Sixth Circuitalso reached a similar result in Blackburn v. Foltz,828 F.2d 1177, 1183 (6th Cir. 1987), holding thatcounsel’s failure "to investigate a known andpotentially important alibi witness" constitutedineffective assistance of counsel.

15Other circuits have reached similar results. See,

e.g., Grooms v. So]era, 923 F.2d 88, 90 (Sth Cir. 1991)("Once a defendant identifies potential alibiwitnesses, it is unreasonable not to make some effortto contact them to ascertain whether their testimonywould aid in the defense."); Bryant v. Scott, 28 F.3d1411, 1418 (5th Cir. 1994) (holding that counsel’s"complete failure to investigate alibi witnesses fellbelow the standard of a reasonably competentattorney practicing under prevailing professionalnorms").

The repeated holdings by courts that failure toconduct a reasonable factual investigationconstitutes ineffective assistance is evident from aCalifornia study of 121 cases in which counsel’sperformance was found to be ineffective. Forty-fourpercent involved counsel’s failure to investigate.California Comm’n On The Fair Administration OfJustice, Report And Recommendations On FundingOf Defense Services In C~liforni~, at 4 (Apr. 14,2008). But the Second Circuit’s decision here willcontinue to permit cases like this one, in which theconvictions of defendants will be upheld despitefailures by their counsel to conduct remotelyadequate investigations. As the state court did inthis case, courts will balance deficiencies in theinvestigation against counsel’s overall performance.But for the reasons amiei have explained, anadequate pretrial investigation is even moreimportant than "the forensic skill exhibited in thecourtroom" because it "may disclose evidence ofwhich even the defendant is unaware and maysuggest issues and tactics at trial which would

16otherwise not emerge." Moore v. United States, 432F.2d 730, 735 (3d Cir. 1970) (reversing denial of post-conviction relief). By permitting state courts to findcounsel’s performance effective when aninvestigation is fundamentally deficient in a mannerthat has a reasonable probability of affecting theoutcome, the Second Circuit’s decision creates animportant and recurring issue.

CONCLUSION

For the reasons set forth above, amici urge thisCourt to grant Rosario’s petition for a writ ofcertiorari.

Respectfully submitted,

IRINA Y. DMITRIEVA

JENNER & BLOCK LLP

353 N. Clark StreetChicago, IL 60654

(312) 840-7211

January 28, 2011

MARC A. GOLDMANCounsel of Record

LESLIE V. POPE*

JENNER & BLOCK LLP

1099 New York Avenue, NWSuite 900Washington, DC 20001(202) 639-6000mgoldman@jenner.com

*Admitted only in VA, not admitted in theDistrict of Columbia.