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Fuentes v. Griffin

United States Court of Appeals, Second Circuit

July 15, 2016

JOSE ALEX FUENTES, Petitioner-Appellant,
v.
T. GRIFFIN, Superintendent, Respondent-Appellee.[*]

          Argued: November 17, 2015

         Appeal from a judgment of the United States District Court for the Eastern District of New York, Sandra L. Townes, Judge, denying amended petition pursuant to 28 U.S.C. § 2254 for habeas corpus on the grounds that the prosecution suppressed a record of the alleged rape victim's psychiatric consultation, in violation of petitioner's due process rights, see Brady v. Maryland, 373 U.S. 83 (1963), and that petitioner's trial counsel provided ineffective assistance. The district court denied the petition on the ground that the state courts' rejections of Fuentes's constitutional claims were neither contrary to nor unreasonable applications of clearly established federal law. We conclude that Fuentes's petition should have been granted on the ground that the state court's rejection of his Brady claim was an unreasonable application of the materiality standard established by Kyles v. Whitley, 514 U.S. 419 (1995).

          COLLEEN P. CASSIDY, New York, New York (Federal Defenders of New York, Inc., Appeals Bureau, New York, New York, on the brief), for Petitioner-Appellant.

          AMY APPELBAUM, Assistant District Attorney, Brooklyn, New York (Kenneth P. Thompson, District Attorney of Kings County, Leonard Joblove, Assistant District Attorney, Brooklyn, New York, on the brief), for Respondent-Appellee.

          Before: KEARSE, STRAUB, and WESLEY, Circuit Judges.

          KEARSE, Circuit Judge:

         Petitioner Jose Alex Fuentes, a New York State ("State") prisoner convicted of rape in the first degree and sodomy in the first degree, appeals from a judgment of the United States District Court for the Eastern District of New York, Sandra L. Townes, Judge, denying his amended petition pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus on the grounds that the prosecution suppressed a psychiatric record of an evaluation of the complainant, in violation of Fuentes's due process rights, see Brady v. Maryland, 373 U.S. 83 (1963), and that Fuentes's trial counsel rendered ineffective assistance by failing to prepare cross-examination or call expert witnesses to counter expert testimony introduced by the prosecution. The district court denied the petition on the ground that the State courts' rejections of Fuentes's constitutional claims were neither contrary to nor unreasonable applications of clearly established federal law, the standard set by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). On appeal, Fuentes contends principally that the rejection by the New York Court of Appeals of his Brady claim was an unreasonable application of the materiality standard established by Kyles v. Whitley, 514 U.S. 419 (1995), and that the decision of the Kings County Supreme Court--the highest State court to address his ineffective-assistance-of-counsel claim on the merits--was an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). For the reasons that follow, we conclude, without need to assess the claim of ineffective assistance of counsel, that Fuentes's petition should have been granted with respect to the Brady claim. The contents of the suppressed psychiatric record provided information with which to impeach the complaining witness and to support the defendant's version of the events. The New York Court of Appeals, as the State concedes, misread the psychiatric record. And although the State argues that the error was harmless, the Court's conclusion that suppression of the document had no prejudicial effect resulted from its lack of understanding of what the psychiatric record stated, along with its failure to balance the evidence in light of the record as a whole and its inability to appreciate the import of the document in the unique context of this case, where (a) the issue was not whether an alleged rapist was the defendant but instead whether what occurred was a rape rather than a sexual encounter in which the complainant participated willingly, (b) the complainant provided the only evidence that what occurred was a crime, and (c) the withheld document was the only evidence by which the defense could have impeached the complainant's credibility as to her mental state. We reverse the decision of the district court and instruct that a new judgment be entered, ordering that Fuentes be released unless the State affords him a new trial within 90 days.

         I. BACKGROUND

         The present case arises out of the alleged sexual assault by Fuentes on a woman--referred to herein as "G.C."--on the roof of her apartment building in the early morning hours of January 27, 2002. It is undisputed that Fuentes and G.C. had oral and vaginal intercourse on that roof; but the only persons present were G.C. and Fuentes, and the issue for trial was whether the sex was consensual. As set out in greater detail below, G.C., who was 22 years old in January 2002, testified that in the wee hours of January 27 she had gone to an arcade with friends; that a few hours later she left with the same friends to go home; and that when she exited the subway alone near her home, a stranger--later identified as Fuentes--followed her home, threatened her with a knife, and raped and sodomized her. In contrast, Fuentes, 23 years old in January 2002, testified that he and G.C. had met in a bar at the arcade, hit it off, left together, went to G.C.'s building for the mutual purpose of having sex, and had done so; however, when G.C. suggested that they see each other again and Fuentes demurred, she became angry and self-deprecating and said he would be sorry. The principal issue on this appeal is whether Fuentes was denied a fair trial by the prosecution's nondisclosure of the psychiatric record made with respect to G.C. later on January 27.

         A. The State's Evidence at Trial

         The State's trial evidence included G.C.'s medical records and the testimony of several witnesses. In addition to G.C., the State's witnesses included one of the friends who had been with G.C. at the arcade on January 27, two police officers, and expert witnesses.

         1. G.C.'s Testimony

         G.C. testified that just after midnight on January 27 she, her friend Tammy Little (or "Tammy"), and Tammy's sister, cousin, and mother were in Manhattan at an arcade in Times Square. Some three hours later, G.C. and her friends left to go home to Brooklyn by subway. At the appropriate stop, G.C. left the others and switched to a G train to the Flushing Avenue station, near the Marcy Projects where she lived with her mother and three sisters. While walking home from that subway station, G.C. noticed a man--identified at trial as Fuentes--walking behind her.

         When G.C. entered her building, Fuentes followed her inside. Having "a bad feeling, " G.C. declined to get into the building's elevator with Fuentes, intending to use it after he had used it. (Trial Transcript ("Tr.") 368-69.) However, when the elevator returned to the ground floor, Fuentes was still inside. He appeared to be exiting, but as G.C. was entering, he pushed her in and followed her; Fuentes put a knife to her neck, and told her, "'don't do nothing stupid or I'll cut you.'" (Id. at 369-70.) They took the elevator to the sixth floor, the top floor and the floor on which G.C.'s apartment was located; they then walked up a flight of stairs to the roof. Once on the roof, Fuentes forced G.C. to engage in oral and vaginal sex. G.C. did not see a condom and did not recall that one was used. (See id. at 375, 426.)

         They then took the stairs and elevator down, with Fuentes holding his knife to G.C.'s neck. After they exited the building, Fuentes put the knife away, put his arm around G.C.'s shoulders as if she "was his girlfriend, " and "asked [G.C.] to walk with him to the train station." (Id. at 377.) On the way, Fuentes apologized and said "he was going through something." (Id. at 377-78.) Fuentes told G.C. his mother was from Honduras, and G.C. testified that she "must have" told him she too was Honduran. (Id. at 403.) Fuentes told G.C. his name was "Alex." (Id. at 378, 428.)

         When they arrived at the subway station and went down the stairs, Fuentes took G.C.'s cell phone, powered it down, wiped its surface, and returned it to her. He warned G.C. not to call the police. (See id. at 379.) When Fuentes asked G.C. "'which side goes to Queens?'" she informed him they were on the wrong side; they went back up to the street, and Fuentes crossed to the side on which the G train goes to Queens. (See id.)

         G.C. watched Fuentes descend toward the Queens-bound platform; she then walked back to her apartment and went to sleep. (See id. at 380-81.) She did not tell her mother she had been raped. Asked why, G.C. responded, "[b]ecause she wouldn't have believed me." (Id. at 381.)

         When G.C. awoke around noon, she got dressed and went to Tammy's home, where she told Tammy and Tammy's sister and mother that she had been raped. After about an hour, G.C. left and went to Woodhull Hospital and reported that she had been raped. A rape kit was prepared, and hospital personnel informed the police. (See id. at 383.) G.C. described her attacker to the police.

         2. Testimony of Tammy Little

         Tammy Little, G.C.'s good friend since high school, testified that she, her mother, and her sister were at the arcade in Times Square with G.C. in the early morning hours of January 27; Tammy testified that the four of them eventually left Manhattan together via subway. (See Tr. 501-02). Tammy did not see Fuentes that night, nor did she see G.C. talk to any men while they were at the arcade. (See id. at 504-05.)

         Tammy testified that G.C. came to her house in the afternoon on January 27 and told Tammy and Tammy's mother that she had been raped "when she was home, she was going into the building." (Id. at 503.) Tammy testified that G.C. did not provide any other details; she "didn't tell [them] she got raped at knifepoint" (id. at 507):

Q. And when she told you she got raped, what did she say to you? What did she say?
A. That was it, that she was raped. (Id.) In response, Tammy and her mother were in shock, did not tell G.C. to call the police, and said nothing. (See id. ("I didn't say anything.").) G.C. departed; Tammy did not know where she went (see id. at 504):
Q. So she came in, told you she was raped and just left? A. Yes. (Id. at 508.)

         3. Police Witness Testimony

         Police officer Kevin Fedynak and his partner interviewed G.C. at Woodhull Hospital on January 27. Fedynak testified that G.C. described her attacker as a well-dressed "male Hispanic, light skin, about six foot two, 200 pounds, going by the name of Alex." (Tr. 456; see id. at 465.)

         Police detective Steven Litwin testified that two years later, in January 2004, he was informed that the male DNA collected in G.C.'s rape kit matched that of Fuentes. He arrested Fuentes in June of that year. (See id. at 676-78.)

         Litwin had interviewed G.C. in September of 2002--her first police interview since January 27, 2002, another detective having made several unsuccessful attempts to interview her in the interim. (See id. at 675-76, 682-83; see also id. at 405-08 (testimony of G.C.).) Litwin testified--after reviewing the record of his September 2002 interview of G.C.--that in describing the January 27 events to him, G.C. told him that Fuentes was not on her building's elevator when it returned to the ground floor; instead, she got on the empty elevator alone, but the elevator then stopped at the second floor. (See id. at 684-85.) (G.C., in her testimony, denied having given Litwin this version of the event (see id. at 419-20).)

         4. Medical and Expert Evidence

         The record of G.C.'s physical examination at the hospital on January 27 indicated that her appearance was within normal limits, as were her skin, sensory organs, and alertness. (See Tr. 568-71, 573.) The examination did not reveal any bruises, swelling, or lacerations anywhere on her body, or any marks on her neck to indicate any trauma. (See id. at 571-72, 576-77, 586-87 ("no signs of trauma to any" "parts of [G.C.'s] body that were examined").) On "the assumption that she [had been] sexually assaulted, " G.C. "was given prophylactic antibiotics for sexually transmitted diseases." (Id. at 565.) The examination had revealed "no external or internal trauma . . . in the pelvic area." (Id. at 564.)

         The State called two expert witnesses with respect to the effects of rapes on victims. One, Daniel McSwiggan, was a Woodhull Hospital nurse who was certified in sexual assault forensic examination. McSwiggan, who had not examined G.C., testified that "the absence of visible trauma to [G.C.'s] vaginal area, " noted during her January 27 pelvic examination, did not mean that she had not been raped. (Id. at 565-66.)

         The other, Dr. Eileen Treacy, was a psychologist who also had not examined G.C. She testified that "a recognizable pattern of behavior that is exhibited by victims of sexual assault, " called "rape trauma syndrome" (id. at 646), may include delayed reporting of the event. However, rapes by strangers are "reported with higher frequency" than non-stranger rapes. (Id. at 653, 659.)

         B. Fuentes's Defense

         Fuentes testified in his own defense and called one additional witness. The latter was Aubry Weekes, a private investigator who was a retired New York City detective and who interviewed G.C. for the defense in February 2005. Weekes testified that G.C. told him she had met Fuentes at the arcade and had left with him; she "[s]aid Mr. Fuentes took her home." (Tr. 711.) (G.C., in her testimony, denied having told Weekes that she met Fuentes at the arcade (see id. at 430-31).) Weekes testified that G.C. did not tell him she had left the arcade with Tammy (see id. at 711); she did not tell him she was raped at knifepoint (see id. at 698); she did not tell him she was raped (see id.).

         Fuentes testified that in the early morning hours of January 27, 2002, he and two friends were at the arcade in Times Square, and there he met G.C. in the bar on the second floor. (See id. at 716-18.) Fuentes told G.C. his name was "Alex Fuentes" (id. at 759); he testified that he is called "Alex" although his first name is "Jose, " because all of the males in his family have the first name Jose and they all go by their middle names (id. at 716). Fuentes testified that he and G.C. conversed, discussing school, their jobs, their birthdays, their shared connection to Honduras, music, and the Honduran singer "Lisa Left Eye Lopez" [sic]. (Id. at 719-20.)

         Around 4 a.m., Fuentes said he was leaving; G.C. said she was leaving too, and Fuentes suggested that they go to a place near where he lived in Queens, or to his apartment. He and G.C. left the arcade together, taking the R train to Queens, and engaging in kissing, heavy petting, and giggling en route (see id. at 742, 744). However, when Fuentes mentioned that they would need to be quiet in his apartment because a relative was living with him, G.C. told him that "she had a better spot [for them] to go to." (Id. at 723.) Fuentes and G.C. changed trains at Queens Plaza and took the G train to the Flushing Avenue stop. G.C. led Fuentes from the subway station to her apartment building, where she took him to the roof. Once on the roof, Fuentes and G.C. engaged in oral and vaginal intercourse. Fuentes stated that he put on a condom prior to the vaginal intercourse, but that it broke during the act; in the heat of the moment, with G.C.'s encouragement, he continued without one.

         When they were done, Fuentes asked G.C. how to get back to the subway, and she offered to walk with him. (See id. at 754-55.) On the way, G.C. suggested that the two of them "go to South Street Seaport and basically hang out again." (Id. at 755.) Fuentes, however, preoccupied with thoughts of the need to get an STD test because he had had unprotected sex with someone he had just met, did not immediately respond. G.C. asked Fuentes if he was listening to her and pointed out that he had not yet asked for her phone number. When Fuentes suggested that they just "'leave things the way they are, '" G.C. asked if Fuentes thought she was "'a ho.'" (Id. at 757.) Fuentes assured G.C. that he was not judging her, but reiterated that it was a "'one-night stand'" and that he would like to "'leave it at that.'" (Id.) Now upset, G.C. told Fuentes that he must think she was "'a ho'" and that he was "'going to be sorry.'" (Id. at 757-58.) Fuentes testified that G.C. was so vehement that a subway employee in the booth looked up at them. Because G.C. "was acting erratic" and seemed "unstable, " Fuentes told G.C. that he was leaving and did not want her phone number. (Id. at 758.) When he walked away, G.C. cursed at him.

         C. The Undisclosed Psychiatric Record

         While in the middle of his closing argument, Fuentes's attorney was leafing through the trial exhibits, including the medical records the State had introduced. He discovered among G.C.'s medical records a page--titled "Record of Consultation"--that the prosecution had not produced to the defense. The Record of Consultation (or "ROC") disclosed that when G.C. was at Woodhull Hospital on January 27 having reported she had been raped, she had a psychiatric consultation. In pertinent part, the Record of Consultation reads as follows:

[G.C.] is a 22 y-o Black female, single, living w/ mothe[r], working in McDonalds x 2m, reporting depression x 2y and ideas of killing herself since then, because she has "family problems" feeling mistreated by mother, frequent crying spells, withdrawn, lack of energy - Now, she feels angry at herself "because she went home late and put herself a[t] risk" - Fair sleep - She has no SI currently and her depression is "as usual"
-PPH: (-) - Substance Abuse Hx: Marijuana use x 2, last y
-PMH: Asthma - LMP: 1/02
-MSE: A 0 x3, mood depressed, denies S/H ideations or A/V hallucinations, no delusions elicited.
IMP: I Dysthymic Disorder: Pt wants someone to talk to about her problems. - Cannabis Abuse.
Suggest: Refer to Psych Clinic ...

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