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Fernandez v. Capra

United States Court of Appeals, Second Circuit

February 22, 2019

Pablo Fernandez, Petitioner-Appellant,
v.
Michael Capra, Respondent-Appellee, Christopher Artuz, Philip Heath, Charles greiner, Respondents.

          Argued: December 12, 2018

         Pablo 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, 2019 order.

          Maia S. Lichtenstein (with David W. Brown, Daniel J. Beller, Jonathan Silberstein-Loeb on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY.

          Sheila 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.

          DENNIS JACOBS, CIRCUIT JUDGE:

         The 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.

         The New 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.

         Fernandez 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.

         We 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.

         I. BACKGROUND

         A. The Crime and Investigation

         Fernandez was convicted of murdering Manny Quintero. The circumstances of the murder are as follows.

         On June 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 time.

         The 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.

         Two 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.

         As part 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.

         Officer 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.

         B. The Trial

         Fernandez went on trial in February 1996. The following evidence was presented. (As discussed more below, some of this testimony was later recanted.)

         The 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.

         Four eyewitnesses testified: Hickliff, George, Canela, and Medina.

         Hickliff 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 trial.

         George 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.

         Canela 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.

         Medina 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.

         The second victim of the shooting, Henry Gomez, did not testify at Fernandez's trial because he could not be located.

         The 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.

         On February 6, 1996, Fernandez was convicted of Quintero's murder. He was sentenced to 25 years to life.

         C. Post-Trial Proceedings

         On 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.

         The 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 convicted.

         The 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.

         Seven 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.

         After a 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.

         Another 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 to appeal.

         D. Current Proceedings

         On 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 ...


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