Marcos Poventud and his attorney Julia Kuan at Poventud’s home in Inwood, NY in June. (Kevin Hagen)
A man who had his attempted murder conviction vacated but then pleaded guilty to a lesser offense just to get out of prison can sue the state for civil rights violations without running afoul of U.S. Supreme Court case law, the full U.S. Court of Appeals for the Second Circuit ruled Thursday.
Sitting en banc, nine Second Circuit judges held in Poventud v. City of New York, 12-1011-cv, that Marcos Poventud’s lawsuit alleging that police withheld exculpatory evidence critical to his defense for the 1987 murder of a livery cab driver could proceed without violating the holding of Heck v. Humphrey, 512 U.S. 477 (1994).
Heck held that suits for damages under 18 U.S.C. §1983 are precluded where they would have the effect of challenging existing state or federal criminal convictions. It was cited by Southern District Judge Deborah Batts (See Profile) when she dismissed Poventud’s lawsuit on the grounds that his plea to a lesser offense did just that.
Batts’ decision was overturned by a divided panel of the Second Circuit in April (NYLJ April 24, 2013), a ruling that triggered debate at the circuit, which voted to rehear the case en banc (NYLJ June 10, 2013).
On Thursday, Judges Richard Wesley (See Profile), Robert Katzmann (See Profile), Guido Calabresi (See Profile), Rosemary Pooler (See Profile), Robert Sack (See Profile), Peter Hall (See Profile), Gerard Lynch (See Profile), Raymond Lohier (See Profile) and Susan Carney (See Profile) upheld the April panel’s split decision vacating the Batts dismissal. Wesley wrote for the majority with Lynch and Lohier writing concurrences.
Dissenting were Judges Dennis Jacobs (See Profile), Jose Cabranes (See Profile), Reena Raggi (See Profile), Debra Ann Livingston (See Profile) and Christopher Droney (See Profile). Jacobs and Livingston wrote dissenting opinions and Judge Denny Chin (See Profile) dissented in part and concurred in part.
The case stems from the March 1997 shooting of livery driver Younis Duopo during an attempted robbery in the Bronx. Police recovered a wallet from his vehicle containing an identification card belonging to Francisco Poventud, Marcos Poventud’s older brother.
Duopo saw the photo as part of an array and identified Francisco Poventud as the shooter, but police soon learned that he was in jail when Duopo was shot.
Police then showed Duopo a photo of Marcos Poventud as part of an array once, twice and three times, but Duopo failed to identify him as one of the robbers. It was only when they showed him the photo in a fourth array did he identify Poventud as the shooter.
Detectives did not preserve the photo array, nor did they tell Bronx prosecutors about the mistaken identification of Francisco Poventud.
With Duopo’s identification the centerpiece of the evidence against him, Poventud went on trial in Bronx Supreme Court in 1998 offering an alibi defense.
During deliberations, the jury asked for more information on Duopo’s initial failures to identify Poventud. The jury told the judge they were “hopelessly deadlocked” after four days, but then resumed deliberations and convicted Poventud and co-defendant Robert Maldonado.
Poventud was sentenced to serve 10 to 20 years in prison.
Maldonado’s attorney, Julia Kuan, of Romano & Kuan, won a new trial in 2002 and, at the second trial, the truth about Duopo’s misidentification was revealed.
This led Kuan to successfully argue that the police had violated their disclosure obligations and secure a new trial for Poventud in 2005.
Prosecutors told Kuan they would appeal the new trial order, an appeal which would have kept Poventud in prison beyond the nine years he already served. As an alternative, they offered him immediate release if he would plead guilty to the lowest felony on the ladder—attempted armed robbery.
Poventud took the deal in January 2006, ending a prison term that his attorney, Joel Rubin, said involved numerous violent acts, including sexual assault, committed against his client.
But it was Poventud’s guilty plea to the lesser charge, where he allocated to being at the scene of the crime, that led Batts to dismiss his §1983 civil lawsuit under Heck.
Heck only allows a §1983 plaintiff to seek damages if he shows that his challenged conviction had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal or questioned by a federal judge’s issuance of a writ of habeas corpus.
The April majority of Judges Guido Calabresi and Robert Sack reversed on the grounds that Heck didn’t apply to Poventud’s lawsuit because he was out of prison when the lawsuit was filed and he no longer had access to habeas relief. Jacobs dissented.
On Thursday, the en banc majority upheld that result, but on narrower grounds, without having to decide the issue of the relationship between §1983 and habeas corpus.
Writing for the majority, Wesley said “Poventud did exactly what Heck required of him.”
“He sought a state court determination that his due process rights were violated in his jury trial, he secured a state court judgment vacating his 1998 conviction, and the State chose not to appeal,” Wesley wrote. “Heck, therefore, does not bar Poventud’s claims.”
The difference for the majority was that Heck was challenging the fairness of his 1998 conviction— not the lesser offense he pleaded guilty to—so “his claim does not necessarily imply the invalidity of his outstanding conviction.”
Batts erred, Wesley said, by concluding that Poventud’s 2006 plea “was at odds with his alibi defense at his 1998 trial” so his claim that the State violated his right to exculpatory evidence under Brady v. Maryland “would call his plea into question” and violate Heck.
This view, Wesley said, “incorrectly presumes that, on the facts of this case, the State could violate Poventud’s Brady rights only if Poventud was an innocent man …” a restriction that “has no basis in the Brady case law.”
In dissent, Jacobs said the “majority’s reasoning impairs the future application of Heck and Brady in this circuit.”
Poventud, he said, entered a guilty plea “that made clear that the eyewitness identification was sound, and that Poventud’s alibi defense at the first trial was perjury.”
Jacobs took a very different view of Brady than that of majority, saying “there is no Brady deprivation absent a concern that the truth-finding function of the trial has been thwarted,” and “The majority assumes that Brady is a rule of procedure detached from its ultimate goal.”
Poventud, he said, will be required “to prove by a preponderance that the nondisclosure was material, i.e. that it caused a result that is wrong or unworthy of confidence. But his own guilty plea forecloses that possibility.”
Lynch penned a concurrence saying a state tribunal invalidated the conviction Poventud was challenging by meeting a requirement of Heck, but he also said the answer to the question before the court “is equally simple from the standpoint of simple justice.”
Lynch said anyone in Poventud’s shoes would be hard pressed to turn down the plea offer that would allow him to leave prison, and he asked “…do we not now KNOW that Poventud is guilty as a matter of fact, because of his plea? I submit that we know no such thing.”
In his own opinion, Jacobs faults Lynch, as well as Calabresi and Sack for “impugning” the guilty plea.
Livingston’s dissent emphasized the necessity that a Brady violation be material. “Until today, Brady v. Maryland, 3737 U.S. 83 (1963), and its progeny represented a safeguard against the miscarriage of justice,” she said.
“In this Circuit – at least until such time as today’s error is corrected – Brady now includes, with our imprimatur, the right to recompense for a denial of the opportunity to commit perjury more successfully,” she said.
Joel Rudin argued the appeal for Poventud, who is currently battling cancer, with Kuan on the brief.
“Because the majority accepted the theoretical application of Heck and simply decided Heck does not bar our claim, we are precluded at trial from taking the position he is innocent, so in that sense it constrains how we can try the case,” Rudin said. “In my view the majority opinion makes it crystal clear that guilt or innocence is not an element of our Brady claim – the claim is solely whether he was denied a fair trial by the cover up of favorable evidence.”
Assistant Corporation Counsel Mordecai Newman argued for the City of New York.
Michael Kimberly argued for amici National Association of Criminal Defense Attorneys and New York State Association of Criminal Defense Attorneys.
Caitlin Halligan argued for amicus District Attorneys Association of New York.
Barbara Underwood argued for amici the States of New York, Connecticut and Vermont.
@|Mark Hamblett can be contacted at firstname.lastname@example.org