Counsel’s Failure to Recall Reason for Not Presenting Certain Evidence Not Ineffective When Reasons for Counsel’s Decision Are Clear from the Record

Greiner v. Wells, Docket No. 04-2809-pr (2d Cir. August 8, 2005) (Op. by Wesley): This opinion, reversing the lower court’s grant of habeas, contains a very thorough discussion of the relevant facts as well as the law governing ineffective assistance of counsel claims on habeas review. It breaks no new ground, however, in concluding that trial counsel’s decision not to introduce certain evidence at trial constituted objectively reasonable strategy, given the obvious downsides of introducing the evidence in question, despite the fact that trial counsel, seven years later, could not recall why he ultimately decided not to introduce this evidence.

Perhaps the only point worth noting is the Court’s decision to discuss counsel’s subjective reasons for not introducing the evidence, even after concluding that the record amply demonstrated an objectively reasonable basis for counsel’s decision. Thus, while Strickland‘s “performance” prong is indeed an objective one, a court evaluating an IAC claim must go beyond merely finding that counsel’s conduct was objectively reasonable. That conclusion, as the Circuit explains, merely “sustains the initial presumption of effective assistance” but “does not end the matter.” Op. at 25. Rather, a court “must also examine counsel’s [actual] decision-making process so that if [it] discovers, for instance, that counsel’s decisions resulted from incompetence, negligence, or pure serendipity, [it] might reconsider any assumption that a ‘choice’ made by counsel was strategic.” Id.; see also Op. at 33 (“[W]here a habeas petitioner establishes that counsel’s choices were not the result of a ‘conscious, reasonably informed decision made by an attorney with an eye to benefitting his client,’ courts may question such choices.”).

In this case, the habeas petitioner demonstrated only that trial counsel (as he testified during a hearing ordered by the habeas court, seven years after the underlying trial) could not recall the reasons for his decision not to introduce the evidence. Petitioner did not show that counsel failed to present the evidence out of laziness, misunderstanding, or ignorance. And a mere failure in memory, the Circuit found, fell far short of “overcom[ing] the presumption that [counsel] rendered effective assistance, a presumption sustained by the transparent logic in avoiding a defense that might actually strengthen the prosecution’s case.” Op. at 33.