Argued: December 12, 2018
Fernandez appeals from a judgment of the United States
District Court for the Southern District of New York (Wood,
J., on recommendation from Gorenstein, J.),
denying his petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The district court concluded that the
high bar for relief under the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA") was not
satisfied, and rejected Fernandez's claims that: (i) the
prosecutors violated his Brady rights, and (ii) the
prosecutors violated his right to a fair trial by knowingly
offering perjured testimony at his trial. We agree with the
district court that the state courts properly rejected
Fernandez's Brady claim. However, we conclude
that the state courts unreasonably determined the facts in
light of the evidence presented in the state court proceeding
when it rejected Fernandez's fair trial claim.
Accordingly, we reverse and remand the judgment of the
district court, with direction to comply with our February 5,
S. Lichtenstein (with David W. Brown, Daniel J. Beller,
Jonathan Silberstein-Loeb on the brief), Paul, Weiss,
Rifkind, Wharton & Garrison LLP, New York, NY.
Anne Marie O'Shea, Assistant District Attorney, for Cyrus
Vance, District Attorney for New York County, New York, NY.
Before: Jacobs, Calabresi, Circuit Judges; Rakoff, [*] District Judge.
JACOBS, CIRCUIT JUDGE:
petitioner, Pablo Fernandez, brings suit under § 2254
challenging his state court conviction for murder-for-hire.
Fernandez was convicted by a jury of murdering Manny
Quintero, a member of a rival gang. Fernandez argues that he
is entitled to a writ of habeas corpus on two bases.
First, Fernandez claims that his rights under
Brady v. Maryland, 373 U.S. 83 (1963), were violated
because the prosecutors failed to promptly disclose evidence
that the lead investigator on his case, Albert Officer
Melino, had been caught selling cocaine to an undercover
police officer before he joined the New York Police
Department ("NYPD"). Second, Fernandez
claims that the prosecutors violated his right to a fair
trial by knowingly offering perjured testimony of two
eyewitnesses--Jesus Canela and Hickliff Rosario, both of whom
recanted years after the trial and claimed that Officer
Melino had pressured them into accusing Fernandez.
York State Supreme Court rejected Fernandez's claims. As
to the Brady claim, the state court held that the
prosecutors' duty to disclose the evidence of Officer
Melino's prior criminal activity was not triggered until
two days after Fernandez was convicted, and was promptly
disclosed then. The court also concluded that there was no
reasonable probability that this evidence would have changed
the outcome of the trial in any event, because of the
overwhelming evidence of guilt, including identifications by
four eyewitnesses. As to the fair trial claim, the state
court found that the recanting witnesses were not credible,
and therefore concluded that the prosecutors had not offered
perjured testimony at Fernandez's trial.
filed a § 2254 petition in the United States District
Court for the Southern District of New York, claiming that
the state courts erred in denying relief. The district court
(Wood, J., on recommendation of Gorenstein, M.J.)
denied the petition, concluding that the high bar for relief
under the Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA") was not surmounted.
conclude that state courts reasonably applied clearly
established federal law by: (1) denying Fernandez's
Brady claim on the ground of materiality; and (2)
denying Fernandez's motion for a new trial based on the
recantation of Hickliff Rosario. However, we conclude that
the state court's rejection of Jesus Canela's
recantation--in part premised on the finding that Canela was
"trying too hard to be convincing," App'x
44--was an "unreasonable determination of the facts in
light of the evidence presented," 28 U.S.C. §
2254(d), and therefore that the state court unreasonably
denied Fernandez's (second) motion for a new trial.
Accordingly, we reverse.
The Crime and Investigation
was convicted of murdering Manny Quintero. The circumstances
of the murder are as follows.
10, 1993, Quintero was standing outside an apartment building
at 504 West 135th Street at Amsterdam Avenue. At
approximately 6:00 p.m., a car arrived at the block, and a
man jumped out of the passenger side. He fired several shots,
killing Quintero, and injuring a bystander, Henry Gomez. The
shooter got back into the car, and drove away. Neither the
shooter nor the driver of the car was apprehended at that
police interviewed several of the bystanders, including two
teenage brothers, Hickliff and George Rosario, who were
cousins of Quintero. Hickliff (we refer to the brothers by
their first name) signed a written statement in which he
described the shooter as a white Hispanic male, approximately
35 years old, about 5'8'' tall, and with gray
hair tied in a ponytail. Hickliff was also brought to the
police station and shown a photo array that did not include a
picture of Fernandez. He selected a picture of a gray-haired
man who he claimed looked like the shooter but was not the
shooter. George was also brought to the police station and
shown three photographs, none of Fernandez. He did not
identify any of the men as the shooter. The investigation
stalled, and the case went cold.
years later, Officer Albert Melino, an investigator at the
NYPD Homicide Investigation Unit, renewed the search for
Quintero's killer, based on information provided by two
cooperators, Martin Mejias and Raymond Rivera, who identified
Fernandez as the murderer hired for $2, 500 by one Jose Luis
Marte to kill Quintero. Marte had murdered a relative of
Quintero, and feared retaliation. Neither of them observed
the murder, but Mejias reported to Officer Melino that
Fernandez had confessed to him.
of his re-investigation, Officer Melino met with the Rosario
brothers at their home in April 1995. They confirmed that
they had witnessed the murder, and described what they had
seen that day. Officer Melino showed Hickliff a photo array,
and Hickliff identified Fernandez as the shooter. At a later
meeting, George was also shown a photo array, and identified
Fernandez as the shooter. On July 20, 1995, Officer Melino
brought the brothers to the District Attorney's Office to
separately show them a line-up. Both identified Fernandez as
the shooter. Later, in recantation, the Rosario brothers
averred that their identification of Fernandez was procured
by Officer Melino's improper suggestions and cues.
Melino had also been canvassing the neighborhood for
additional witnesses. Two weeks before trial, in January
1996, he located two new eyewitnesses: Jesus Canela and
Manuel Medina. Canela, a teenager, told Officer Melino that
he had observed the murder, and described the shooter as
30-40 years old, 5'11'', and with gray hair in a
ponytail. Canela had never spoken to any law enforcement
about the murder. Medina reported to Officer Melino that he
saw the shooter fleeing in the passenger seat of a car that
was stopped at a red light in front of where Medina was
sitting. Medina reported that the passenger was wearing dark
clothing and had medium-length brown or gray hair.
went on trial in February 1996. The following evidence was
presented. (As discussed more below, some of this testimony
was later recanted.)
prosecution offered testimony from Rivera and Mejias, who
testified that Marte had hired Fernandez to kill Quintero.
Rivera testified that he met up with Fernandez and Marte
after the murder, and that Fernandez told them that he shot
Quintero and "left him like a piece of shit on the
floor." App'x 1023. Mejias testified that he
observed Marte give Fernandez money at Marte's home less
than a month after the murder. Neither Mejias nor Rivera
observed the murder.
eyewitnesses testified: Hickliff, George, Canela, and Medina.
testified that he was playing basketball near 504 West
135th Street when a car pulled up in front of the
building, and a man emerged and began shooting. He identified
Fernandez as the shooter. He also testified that he
identified Fernandez as the shooter in a lineup prior to
testified that he was riding his bicycle on West
135th Street when he saw a car make a U-turn on
the block and a man get out. The man fired four or five
shots, and George saw Quintero run toward the building. He
identified Fernandez as the shooter. George also testified
that he identified Fernandez in a lineup prior to trial.
testified that he was standing in front of 504 West
135th Street when he saw a car pull up in front of
the building. A man got out and started shooting an Uzi. He
identified Fernandez as the shooter, and testified that he
recognized his nose, his eyes, and his mouth. He denied ever
viewing a photo array or lineup.
testified that he was playing dominos at the scene when he
heard gun shots. In the passenger seat of a car driving down
the street at a low speed, Medina recognized the right
profile of Fernandez's face, including his cheek bones,
his eyebrows, jaw, nose, and ear. He recalled that the
passenger's hair was brown or gray.
second victim of the shooting, Henry Gomez, did not testify
at Fernandez's trial because he could not be located.
defense case primarily focused on the differences between
Fernandez's appearance at the time of the shooting (he
was a dark-skinned Hispanic, in his 20s, with short hair) and
the description of the shooter given by the eyewitnesses to
the investigators, who described the shooter as a
light-skinned Hispanic male, 30-40 years old, and wearing his
gray hair in a ponytail. A defense witness testified that
Fernandez had short hair, and never wore his hair in a
ponytail. Fernandez also offered one eyewitness who testified
that Fernandez was not the shooter.
February 6, 1996, Fernandez was convicted of Quintero's
murder. He was sentenced to 25 years to life.
February 15, 1996, nine days after the trial concluded, the
prosecution disclosed to the defense that, on February 9,
Officer Melino had been arrested and charged with Criminal
Sale of a Controlled Substance. The charges stemmed from
events that took place in 1991 and 1992, before Officer
Melino had entered the police academy. The prosecutors had
obtained videotape and audiotape evidence from New York State
troopers in which Officer Melino sold a half a kilogram of
cocaine to an undercover cop.
defense filed a motion to set aside the verdict, arguing
under Brady that the prosecution violated his rights
by failing to promptly disclose criminal conduct by the lead
police investigator. The state court held a hearing, at which
the Chief of the Official Corruption Unit of the New York
District Attorney's Office, William Burmeister, set forth
the timeline of the discovery of Officer Melino's
criminal wrongdoing, and offered evidence that the
prosecutors had no more than speculative evidence of the drug
sales prior to February 8, two days after Fernandez was
state court found no Brady violation because the
prosecutors disclosed the evidence promptly after Melino was
arrested, and ruled that any Brady violation would
have been harmless in any event, because trial evidence of
guilt was overwhelming. The Appellate Division, First
Department unanimously affirmed the conviction on the ground
of harmlessness only. A judge on the Court of Appeals denied
leave to appeal.
years later, in 2003, Fernandez filed his first motion for a
new trial. The motion was supported by affidavits in which
the Rosario brothers recanted their identification of
Fernandez, and swore that their pre-trial identifications of
Fernandez in the photo array and at the line-up were coerced
by Officer Melino. Fernandez also offered an affidavit from
Gomez (the second victim of the shooting), who swore that
Fernandez had not shot him.
hearing at which Hickliff and Gomez testified, the state
court found that Hickliff's recantation and Gomez's
negative identification were not credible, and that there was
therefore no basis for a new trial. The Appellate Division,
First Department unanimously affirmed, and a judge on the
Court of Appeals denied leave to appeal.
four years later, in 2010, Fernandez filed a second motion
for a new trial. In support of this motion, Fernandez offered
an affidavit in which Canela also recanted his identification
of Fernandez, and also claimed that his accusation was
coerced by Officer Melino. The trial court held another
hearing and heard testimony from Canela. The court again
denied the motion, finding that Canela's recantation was
not credible, and therefore that there was no basis for a new
trial. The Appellate Division, First Department denied leave
October 10, 2000, Fernandez filed a § 2254 petition for
a writ of habeas corpus in the Southern District of New York.
There is no point in recounting the full procedural history
of this case. As relevant to this appeal, on August 30, 2013,
Fernandez filed a Third Amended Petition for a writ of habeas
corpus, arguing that: (i) the prosecution violated his
Brady rights; and (ii) the prosecution violated his
right to a fair trial by procuring and knowingly using false
testimony at trial. On October 9, 2014, Magistrate Judge
Gorenstein issued a Report and Recommendation concluding that
the petition did not ...