Argued: November 17, 2015
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.
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.
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:
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.
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.
The State's Evidence at Trial
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.
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.
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.)
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.)
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.)
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.)
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.
Testimony of Tammy Little
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.)
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.
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.)
Police Witness Testimony
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.)
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.)
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
Medical and Expert Evidence
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.)
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.)
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
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.).
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.)
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.
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
The Undisclosed Psychiatric Record
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 ...