dissenting:
I respectfully dissent.
The majority opinion holds that Charles Hemstreet’s (Hemstreet) petition for a writ of habeas corpus must be denied because “the record does not show that Hem-street suffered prejudice from any alleged omissions by his counsel.” The majority marshals the evidence of Hemstreet’s guilt as if the sufficiency of the evidence, considered in light of Jeanette Bucci’s (Bucci) recantation of her June 1997 affidavit, was the reason we remanded this case to the district court. However, earlier when we considered the original grant of the writ petition, we noted the weakness of the prosecution’s case against Hemstreet and “agree[d] with the district court that trial counsel’s deficient conduct affected the outcome of Hemstreet’s trial.” Hemstreet *93v. Greiner, 367 F.3d 135, 140 (2d Cir.2004) (Hemstreet I). Later, alerted to Bucci’s apparent recantation, we remanded with instructions for the district court to “evaluate the effect of Bucci’s new information on Hemstreet’s habeas petition while at the same time allowing Hemstreet an opportunity, by whatever means it thinks appropriate, to flesh out and otherwise examine Bucci’s new explanation.” Hemstreet v. Greiner, 378 F.3d 265, 269 (2d Cir.2004) (Hemstreet II ).1
Judge Brieant did exactly what we directed him to do. He held evidentiary hearings over a two-day period, taking testimony from all ten witnesses involved in defense counsel Murray Richman’s (Rich-man) decision not to call Bucci as an alibi witness. See Hemstreet v. Greiner, 2005 WL 3434412, at *3 (S.D.N.Y. Oct.13, 2005) (Hemstreet III). We review the district court’s findings of fact concerning a habeas petition for “clear error,” see Taveras v. Smith, 463 F.3d 141, 146 (2d Cir.2006). Based on this record, the district court should not be faulted for crediting some but not all of the testimony. For example, Richman declared in his 2002 Sparman affidavit that he could not “with any degree of certainty assert why Ms. Bucci was not called as a witness during the course of the trial.” Judge Brieant understandably was unconvinced by Richman’s refreshed recollection during the proceedings on remand — testimony that rationalized a decision defense counsel made more than seven years earlier. Judge Brieant also had good reason to question the truthfulness of Bucci’s recantation. She waited more than seven years to contact the Rockland County District Attorney’s office to claim that her June 1997 affidavit was false. Had I been the district court judge considering this case on remand, I might have reached different conclusions from Judge Brieant regarding the credibility of the witnesses and their accounts of Bucci’s fears and Richman’s decision not to call her as a witness. However, I was not the district judge on remand. On this cold record I cannot say that the district court’s factual findings are clearly erroneous.
The majority does not appear inclined to disturb these factual findings either. Nonetheless, in reversing the district court, the majority considers other evidence of Hemstreet’s guilt, evidence we believed in Hemstreet I so flimsy that the conduct of defense counsel likely prejudiced Hemstreet. Somehow to the majority that evidence is now strong enough to preclude prejudice to the defense from Bucci’s failure to testify.2 I recognize that Hemstreet II vacated Hemstreet I and that this panel is not bound to follow our initial analysis of prejudice under the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Nonetheless, I believe that Hem-street I correctly concluded that the prosecution’s largely circumstantial case against Hemstreet was far from overwhelming. We observed that the prosecution’s strong*94est evidence against Hemstreet was that the victim, Kenneth Hiep (Hiep) was last seen in the company of both Patrick Bentz (Bentz), who was separately convicted for the murder, and Hemstreet, and that no one saw Bentz and Hiep alone that night. See Hemstreet I, 367 F.3d at 141. Yet Bucci’s June 1997 affidavit stated that “[a]t about 10:30 pm [on the night of the murder] I noticed Mr. Bentz and Mr. Hiep walk into Lace. Mr. Hempstreet [sic] was not with them.”3 The majority observes that other witnesses provided a different timeline of that night’s events, and that Bucci’s account failed to mention others who joined the party that night. Admittedly this evidence bears on Bucci’s credibility. However, that credibility is a question the jury should have been permitted to assess. Bucci’s 1997 affidavit was exculpatory and directly challenged the prosecution’s theory of the case, a case that was built largely on circumstantial evidence.
Finally, although the majority does not rest its holding on the first prong of Strickland, it concludes that trial counsel’s performance was not deficient. I disagree with them conclusion that the district court’s findings on remand “largely eviscerate Hemstreet’s ineffective assistance claim.” Strickland emphasizes that, “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (emphasis added). Although the district court ultimately concluded that “there is insufficient evidence to conclude Detectives Murphy and Hill actually threatened or intimidated Ms. Bucci or that their conduct would be regarded by a reasonable individual as threatening,” Judge Brieant nonetheless found that “Bucci conveyed clearly to Mr. Richman a feeling of intimidation, whether or not reasonable.” Hemstreet III, 2005 WL 3434412, at *10. Regardless of its objective basis, it was Bucci’s actual fear that is crucial to assessing Richman’s diligence in pursuing Hemstreet’s defense. Although “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable,” Strickland, 466 U.S. at 690, 104 S.Ct. 2052, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691, 104 S.Ct. 2052. Judge Brieant found that Richman did neither. That finding is not clearly erroneous. Counsel’s decision not to call Bucci as a potential alibi witness is not entitled to deference because he made little effort to discover the source of Buc-ci’s fear and how any potentially exculpatory testimony might be salvaged.
In conclusion, I believe that on remand the district court did exactly what we instructed it to do. The majority, however, faults him for this and reweighs the evidence of prejudice to the defense that the majority of our original panel found troubling. I adhere to my earlier analysis of the prejudice prong of Strickland, and believe that the district court committed no error of law in its analysis.
Therefore, I dissent from the majority and would affirm the district court’s issuance of the writ of habeas corpus.
. We clarified that "[w]e do not mean to suggest that the district court is limited to this inquiry on remand. In addition to any proceedings necessary in light of Bucci’s new information, the district court is free to accept or solicit any other information that bears on the resolution of Hemstreet’s habeas petition.” Hemstreet II, 378 F.3d at 269 n. 1.
. Judge James L. Oakes authored Hemstreet I, 367 F.3d at 136, with Judge Parker dissenting. When Judge Oakes retired after the remand, Judge Sack replaced Judge Oakes on this panel. Our earlier decision was vacated, Hemstreet II, 378 F.3d at 269. I am not suggesting that any member of this panel should be bound by the views expressed in Hemstreet I, but rather to suggest that successive panels reviewing essentially the same record should reach the same result.
. The majority assumes that Bucci would have testified at trial in conformity with the June 1997 affidavit and her November 1997 statement to detectives.