On May 11, 2004, in Hemstreet v. Greiner, the Second Circuit affirmed a grant of a petition for habeas corpus on the ground that the petitioner's trial and appellate counsel in his criminal case (homicide) were ineffective. The basis for this finding was that a possible defense witness had been intimidated by the police not to speak with the defense. She purportedly had evidence that was consistent with the defense theory of the case (that he was not present when the victim was murdered). The trial attorney alerted the Court to the intimidation, but did nothing further, and the witness did not testify at the petitioner's trial (his second, his first having been reversed because of a grand jury error). The petitioner's appellate counsel did not raise the issue on appeal. The District Court had found that the witness had not testified because of the intimidation, and the Second Circuit held that that finding was not clearly erroneous. Based on that finding, the Second Circuit held that trial counsel's performance fell below an objective standard of reasonableness and that his performance affected the outcome of the trial. Similarly, the Second Circuit noted that trial counsel's failure to obtain the testimony of the exculpatory witness was an obvious issue for appeal, which he did not advance. This failure prejudiced his appeal.

The decision was not unanimous. Judge Barrington D. Parker dissented. He did not believe that the record established the ineffectiveness of trial counsel. This, of course, meant that the appellate counsel could not be faulted for raising an issue where the record was not properly developed.

The decision and dissent can be found at the Second Circuit website.