SIDNEY H. STEIN, District Judge.
Petitioner William Reyes was convicted of rape and sexual abuse in New York state court in 2003 and sentenced to eighteen years in prison. He filed this petition in 2006 pursuant to 28 U.S.C. § 2254. After this Court denied the petition in 2009, the U.S. Court of Appeals for the Second Circuit granted Reyes a certificate of appealability for the limited purpose of remanding the case for further consideration of the merits of two of petitioner's claims, which alleged due process violations resulting from (1) perjury at trial and (2) withholding of exculpatory evidence in disregard of Brady v. Maryland, 373 U.S. 83 (1963). The Second Circuit also directed the Court to make factual findings on three matters relevant to those claims.
For the reasons set forth below, the Court denies Reyes' petition with respect to both remaining claims, but grants a certificate of appealability as to the perjury claim.
In the summer of 2002, petitioner William Reyes was working as a manager at the concession stand of Circle Line Cruises, a sightseeing boat company in Manhattan. He was twenty-nine years old and the father of two young daughters. Jane Martinez was a seventeen-year-old high school student with an infant son, living at Catholic Guardian Society Home, a group home for young mothers. Martinez began working at the Circle Line concession stand, under Reyes' supervision, on June 27, 2002. (See Trial Transcript ("Tr."), Doc. 9 at 34-38, 41-45, 348-57, 372-73, 406-07.)
According to Martinez, Reyes forcibly raped her on a boat at the Circle Line pier on July 2, 2002, her fourth day on the job. Petitioner insists the sex was consensual. (Id. at 52-74, 352-68.) After a jury trial in New York Supreme Court, New York County (Justice Bernard Fried presiding), at which both Reyes and Martinez testified, Reyes was convicted of rape in the first degree and two counts of sexual abuse in the first degree. (Id. at 555-58.) He was sentenced to eighteen years in prison. (Sentencing Transcript, addendum to Doc. 9 at 29.)
After an unsuccessful direct appeal,
Petitioner's Section 440 petition was denied without a hearing by Justice Ruth Pickholz of the New York Supreme Court, New York County. In a July 2006 order, Justice Pickholz reasoned that Reyes failed to exercise due diligence to uncover the report in time for trial and, further, that none of his newly proffered evidence was material or likely to change the verdict. (2006 Pickholz Order, Doc. 7 Ex. I.) The Appellate Division, First Department, denied him leave to appeal the decision. (Certificate Denying Leave, Doc. 7 Ex. L.)
Reyes filed a petition pursuant to 28 U.S.C. § 2254 in 2006, seeking a writ of habeas corpus on the basis of six claimed violations of his constitutional rights.
Reyes then filed an amended petition; in 2009, this Court adopted the Report and Recommendation of Judge Fox to deny the petition and declined to grant a certificate of appealability. Reyes v. Ercole, No. 06-CV-5525, 2009 WL 790104, at *1 (S.D.N.Y. Mar. 25, 2009). Reyes moved for a certificate of appealability in the U.S. Court of Appeals for the Second Circuit. The Second Circuit granted his motion for the limited purpose of remanding the case for further consideration of two of petitioner's claims — based on alleged perjury and Brady violations — and otherwise denied the motion and dismissed the appeal. (Mandate, Doc. 38.)
The Second Circuit's 2009 mandate directed this Court to make factual findings on three separate questions. Based on the decision of the United States Supreme Court in Cullen v. Pinholster that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits," 563 U.S. 170, 181 (2011), this Court declined petitioner's subsequent request for an evidentiary hearing on remand. Reyes v. Ercole, No. 06-CV-5525, 2011 WL 1560800, at *2 (S.D.N.Y. Apr. 25, 2011).
This Court stayed this action for more than four years at the request of petitioner's counsel — from January 13, 2011, until April 22, 2015 — to allow Carvlin and her investigator, Joseph Dwyer, to investigate further and to seek additional relief in New York state court. (See Endorsed Letters, Docs. 50 & 70.) During that time, petitioner filed a second Section 440 petition in New York state court, which was adjudicated and denied by Justice Pickholz. (See Notice of Second 440 Motion, Doc. 78 Ex. 1.) That petition advanced three claims — perjury, actual innocence, and ineffective assistance of counsel — on the basis of a series of affidavits from newly contacted witnesses who had not testified at trial. For reasons addressed in relevant detail below, Justice Pickholz denied the first two claims in a July 2013 order and the third in a December 2013 order, after hearing testimony from several witnesses over three days in October and December 2013. (See 2013 Pickholz Pre-Hearing Order, Doc. 78 Ex. 4; 2013 Pickholz Post-Hearing Order, Doc. 78 Ex. 6; Oct. 2013 Transcript ("H.") & Dec. 2013 Transcript ("H2"), Doc. 71 Ex. C.) The Appellate Division, First Department, subsequently denied Reyes' request for leave to appeal that decision. (See 4/21/15 Letter, Doc. 70.)
Reyes carries a heavy burden on this petition. The governing statute, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), "reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (internal quotation omitted). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA:
In Section 2254(d)(1), "the phrase `clearly established Federal law, as determined by the Supreme Court of the United States' . . . refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is "contrary to" those holdings if it "applies a rule that contradicts the governing law," or if it "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [the Court's] precedent"; the decision constitutes an "unreasonable application" if it "identifies the correct governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner's case," or "either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 405-07. In sum, for the writ to issue, "[t]he state court decision must be so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (internal quotation omitted).
The threshold for establishing an "an unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2), is also very high. Relief cannot be granted if "reasonable minds reviewing the record might disagree about the finding in question." Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (internal quotation and alteration omitted). In addition, in this Circuit a "federal habeas court must assume that all factual determinations made by the state court were correct unless the petitioner rebuts those findings by clear and convincing evidence," pursuant to 28 U.S.C. § 2254(e)(1). Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 120 (2d Cir. 2015).
These highly deferential standards apply here because Reyes' claims were adjudicated on the merits in state court. As recounted above, over the course of petitioner's two Section 440 petitions, the New York County Supreme Court, Justice Pickholz, considered and rejected Reyes' arguments in a series of three detailed and substantive orders, and the Appellate Division, First Department, denied leave to appeal from those decisions. This Court therefore "looks through" those summary orders to Justice Pickholz's "reasoned state judgment," to which it must defer. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991).
However, as to specific factual questions on which "the state court in this case explicitly refused to make any factual finding," no deference can attach. Ortega v. Duncan, 333 F.3d 102, 106 (2d Cir. 2003) (citing Channer v. Brooks, 320 F.3d 188, 195 (2d Cir. 2003) (per curiam)). On such matters, petitioner bears only the normal background burden of proof by a preponderance of the evidence. Id.; see also Epps v. Poole, 687 F.3d 46, 50 (2d Cir. 2012). The Court must also take care to defer to any factual findings implicitly made by the state court. Channer, 320 F.3d at 195.
On the first claim remanded for further consideration by this Court, Reyes contends that the admission of perjury at trial violated his constitutional right to due process. The Supreme Court "has consistently held that a conviction obtained by the knowing use of perjured testimony . . . must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976).
To adjudicate this claim, the Court must determine "(1) whether false testimony was introduced, (2) whether that testimony either was or should have been known to the prosecution to be false, . . . and an whether the false testimony was prejudicial in the sense defined by the Supreme Court in Agurs." Shih Wei Su v. Filion, 335 F.3d 119, 127 (2d Cir. 2003).
Finally, in this Circuit, "at least for purposes of a collateral attack, a defendant is normally required to exercise due diligence in gathering and using information to rebut a lying prosecution witness." Shih Wei Su, 335 F.3d at 127.
For the reasons that follow, although petitioner shows the admission of some perjured testimony at his trial, he has failed to meet at least one of the additional requirements to obtain relief on this claim.
Petitioner proffers evidence purportedly showing that his due process rights were violated when "Ms. Martinez intentionally provided false testimony at Mr. Reyes' trial on five material issues." (Pet.'s Suppl. Mem., Doc. 71 at 5.) In adjudicating this claim on the merits, Justice Pickholz expressly declined to reach the question whether Martinez had in fact perjured herself. Instead, lalssuming for the sake of argument that Ms. Martinez testified falsely," the state court denied the claim on the independently sufficient ground that the prosecution lacked knowledge of the evidence at issue, as addressed below. (2013 Pickholz Pre-Hearing Order at 5.) This Court took much the same tack in its 2009 order denying Reyes' habeas petition. Reyes v. Ercole, No. 06-CV-5525, 2009 WL 790104, at *6 (S.D.N.Y. Mar. 25, 2009).
However, the Second Circuit has directed that:
(Mandate at 2 (emphasis added).) Because there was no state court finding on this issue, it is left to this Court's de novo review whether petitioner has shown the admission of perjury by a preponderance of the evidence. See Channer v. Brooks, 320 F.3d 188,195 (2d Cir. 2003) (per curiam) ("[W]here a state court does not resolve a question of fact, no presumption of correctness can possibly attach with respect to that issue."); Ortega v. Duncan, 333 F.3d 102, 106 (2d Cir. 2003); Black v. Rock, 103 F.Supp.3d 305,317 (E.D.N.Y. 2015).
The state court did, however, make one finding of relevance here. In adjudicating another claim, Justice Pickholz found that Barbara Womack's subsequent testimony — that Martinez was attracted to Reyes and volunteered to accompany him to the boat on July 2 — "would have supported defendant's claim that the sex that occurred on the boat was consensual," had Womack testified at trial. (2013 Pickholz Post-Hearing Order at 3.) Although Justice Pickholz added that she did not think the effect of this support would be great, her endorsement of the testimony suggests that she made an implicit finding of Womack's credibility, which this Court cannot disturb except in accordance with the strictures of Section 2254.
With these standards in mind, the Court will consider each of Reyes' allegations in turn.
First, Reyes contends that Martinez perjured herself by testifying that did not have any "personal" conversations with him before the day of the rape. (Pet.'s Suppl. Mem. at 5-8.) Her account differed markedly from Reyes' narrative. Reyes testified that he spent Martinez's first day at work training her and speaking with her about numerous personal topics, including their respective relationships, and that the two got to know each other in the days before a consensual sexual encounter. (Tr. at 353-59; 405-09.) The key portion of Martinez's trial testimony on direct examination reads as follows:
(Id. at 441-42.)
According to the FLIK Report, however, Martinez previously told an agent of her employer that she and Reyes had indeed discussed topics plausibly deemed "personal":
(FLIK Report, Doc. 71 Ex. B at 4-5.) The interactions involving the hickey and the van are also corroborated by interview notes produced to Reyes by the prosecution pursuant to People v. Rosario, 9 N.Y.2d 286 (1961).
This evidence casts doubt on the accuracy of Martinez's trial testimony denying any personal conversations with Reyes. But petitioner has not shown by a preponderance of the evidence that the discrepancy is the result of perjury, as opposed to "inaccurate testimony due to confusion, mistake, or faulty memory." United States v. Dunnigan, 507 U.S. 87, 95 (1993).
First of all, none of the specific denials by Martinez, as limned above, are directly contradicted by the subsequently discovered evidence. For instance, it would be a stretch to characterize petitioner's inquiry into the source of a hickey on Martinez's neck as a conversation "about her relationship with her boyfriend."
More broadly, the language of the catch-all inquiry that opened the line of questioning on this topic at trial — "Did you talk to him about anything personal?" — is ambiguous enough that Martinez may honestly have considered its scope not to include matters such as the introductory information she provided at the start of her employment, or the communications involved in arranging to help Reyes move an item into his van. Cf. United States v. Kerik, 615 F.Supp.2d 256, 273-74 (S.D.N.Y. 2009) (the question "whether there was anything embarrassing that [the defendant] would not want the public to know about" was phrased at such a "level of abstraction" as to "render[] the term `embarrassing' fundamentally ambiguous," and hence could not support a perjury charge).
On the one hand, petitioner seems correct to say that "talking about receiving a hickey from one's boyfriend clearly falls into the ambit of personal," however the term is defined. (Pet.'s Suppl. Mem. at 8.) But it is possible that Martinez didn't consider this exchange — in which her only participation was to answer a question from Reyes — to count as her talking about something personal. It is also possible, and even likely, that she innocently forgot about this single personal comment when asked a broad question on the stand. After all, she had previously testified that Reyes was "fresh" and "too loose" with her, "act[ing] like he knew me for a long time." (Tr. at 49.) That testimony suggests that Martinez had no intention of concealing from the jury the fact that she had at least some arguably "personal" interactions with Reyes at work. "Differences in recollection do not constitute perjury," United States v. Josephberg, 562 F.3d 478, 494 (2d Cir. 2009), and petitioner has not met his burden to show that Martinez's statements on this subject were willfully false.
Second, petitioner argues that Martinez falsely testified that she had told Charise Pearson — a "mentor" or counselor at the group home where Martinez lived in 2002 — that Reyes kissed Martinez against her will on one of her first three days working at Circle Line. (Pet.'s Suppl. Mem. at 8-11.) The Rosario material indicates that Martinez repeated this claim — that she informed Pearson of the nonconsensual kiss on the day it occurred — in at least four interviews with prosecutors and police officers, including NYPD Detective Lissette Sassok, prior to Reyes' trial.
Subsequently adduced evidence suggests that Martinez did not in fact report the kiss at the time. Pearson, the group home counselor, did not testify at trial, but she later testified — in a 2012 affidavit and again in person at the October 2013 hearing — that Martinez never told her about an unwanted kiss. Pearson further testified that her job protocols would have required her to report to a supervisor if any of the group home's young residents had made any such allegation of sexual harassment at work. (Pearson Aff., Doc. 71 Ex. D ¶¶ 8, 10; H. at 35-36.) At the December 2013 hearing, Martinez testified that she did not tell Pearson about the kiss, (H2 at 7-8, 17-18), and in fact did not tell "anyone" about it. When pressed by Justice Pickholz on the latter assertion, Martinez retreated somewhat, as shown in context below:
(Id. at 22 (emphases added).)
Martinez most likely perjured herself on this topic at trial, although not in the precise manner alleged by petitioner. Two portions of her trial testimony touch on the subject. First, on direct examination, the assistant district attorney asked Martinez if, "when [she] went home that evening," she told "anyone at the group home" about the kiss. Martinez answered "yes" three times. (Tr. at 51-52.)
Second, on cross, Martinez was specifically asked about what she told Pearson, but only in the context of a question about what she later told Sassok:
(Id. at 137 (emphasis added).) Petitioner's counsel then moved on to another topic of cross-examination.
Reyes now focuses on the latter exchange, framing the issue as whether Martinez falsely "testified at trial that the day Mr. Reyes kissed her she told Ms. Charise [Pearson], one of the staff members at the Catholic Guardian Home, about what had happened." (Pet.'s Suppl. Mem. at 8.) The problem for petitioner is that Martinez never said on the witness stand at trial that she had told Pearson about the kiss — perhaps because the question by petitioner's trial counsel was poorly formed. By all accounts, Martinez's trial testimony on cross — that she had told Sassok that she had told Pearson about the kiss — was literally accurate. A "complaint follow up" report completed by Sassok states that Martinez did tell Sassok that "[w]hen she got home she told Ms. Sherise what happened." (Doc. 71 Ex. H.) Martinez's truthful testimony as to what she told Sassok, even if "arguably misleading" by implication, is not perjury. Bronston v. United States, 409 U.S. 352, 353 (1973); cf. United States v. Lighte, 782 F.2d 367, 374 (2d Cir. 1986) ("When a witness testifies that `A' is a fact, and then is asked if he has testified that `A' is a fact, and he says yes, such response is truthful, regardless of whether `A' is a fact. . . . Because these answers are literally true, they obviously cannot support a perjury charge.").
On the other hand, Martinez's more general testimony on direct — that she told some unspecified person about the kiss — appears perjurious. The sum of the evidence clearly suggests that Martinez repeatedly lied to Sassok and other government officials in pretrial interviews when she claimed to have told Pearson about the kiss. There is no reason to doubt the veracity of Pearson's later sworn testimony and affidavit to the effect that Pearson was never told about any kiss. Pearson never met Reyes; she bore no evident grievance against his alleged victim and indeed testified that she liked and had a "rapport" with Martinez, whom she considered intelligent and a good mother. (Pearson Aff. ¶ 5; H. at 35-38.) And after hearing this testimony years later, Martinez contradicted her previous statements both at and prior to trial, stating variously that she did not tell anyone about the kiss or that she "might have" but couldn't recall. (H2 at 7-8, 18-22.)
It is possible to construct innocuous explanations for Martinez's trial testimony on direct examination. She may have told someone else at the group home, besides Pearson, and then forgotten not only that person's name but also the entire interaction by the time of the 2013 hearing ten years later. Or perhaps Martinez did tell Pearson, but both Martinez and Pearson have since forgotten that event so completely that they were both willing to testify under oath in 2013 that it never occurred.
But no evidence supports such chains of conjecture and speculation. The most likely reason that Martinez now says she did not tell anyone about the kiss at the time is that in fact she did not. Her pretrial statements on this topic — which was of obvious interest to government investigators — are loaded with inconsistencies and likely falsehoods. As noted, the Rosario evidence indicates that Martinez claimed in four separate interviews that she reported the kiss to Pearson. In one of those interviews, Martinez added that she also reported it to her boyfriend (but "told him not to do anything") and to Burroughs, a "friend who live[d] w/her" at the group home. (Doc. 71 Ex. G.) But in another interview, Martinez claimed that she did not tell her boyfriend, because she was "scared of [his] reaction." (Doc. 71 Ex. E.) And although Burroughs did not testify at the 2013 hearing, Burroughs submitted an affidavit detailing her interactions with Martinez in 2002, which includes no mention of any such report of a kiss. (See Burroughs Aff. ¶¶ 6-15.)
No other candidate has been identified as the person at the group home whom Martinez testified she told about the kiss. The preponderance of the evidence now suggests that Martinez falsely testified at trial that she reported the kiss to someone at her group home.
Third, petitioner avers that Martinez perjured herself when she stated at trial that Reyes had ordered her to go to the boat where the alleged rape took place. (Pet.'s Suppl. Mem. at 11-14.) The parties agree that on the morning of July 2, 2002, a supervisor radioed Reyes at the concession stand and instructed him to recover several large coffee urns from "Boat Ten" on the pier. Martinez testified that Reyes "told [her] to go to boat ten," a location unfamiliar to her and which she required directions to reach, and then followed her to the boat, where he raped her. (Tr. at 55-59.) By contrast, Reyes testified that Martinez volunteered to accompany him — "[s]he said she would help me," after hearing the radio message — and that they went to the pier together. (Id. at 366.)
Subsequently adduced eyewitness testimony favors Reyes' account over Martinez's. Barbara Womack was a cashier at the Circle Line concession stand in the summer of 2002 and on July 2 in particular. She testified in her 2005 and 2012 affidavits that on that date, she "was present when William Reyes asked for a volunteer from the staff to go to the Circle Line boats to retrieve coffee urns that were missing from one of the stands," after which "Jane Martinez volunteered to go with Mr. Reyes to look for the missing coffee urns." Reyes then "led the way" to the boats, while "Ms. Martinez followed behind him." (Womack 2012 Aff., Doc. 71 Ex. I ¶¶ 8-12; see also Womack 2005 Aff., Doc. 78 Ex. 12 ¶ 3.) Womack attested to the same series of events at the 2013 hearing. (H. at 8-9.)
The preponderance of the evidence suggests the most likely explanation for the discrepancy between the accounts of Martinez and Reyes is that Martinez lied. In counterargument, respondent mounts two relevant attacks on Womack's credibility. (Resp't's Suppl. Mem., Doc. 78 at 38-41.) First, in a separate portion of her 2012 affidavit, Womack stated that, upon returning from the boat, Martinez "did not seem to be distressed or upset. She demonstrated no unusual emotion. Her clothing was not disarranged or disheveled." (Womack 2012 Aff. ¶¶ 14; see also H. at 10.) But that account was contradicted by the trial testimony of another Circle Line employee and eyewitness, Sylina King, that Martinez "looked sad, her eyes were red, her cheeks was red, her hair was kind of messed up, her shirt was tucked out of her pants." (Tr. at 168.) Second, Womack was convicted of two crimes — involving a forged instrument and a drug sale — in the mid-1990s. (H. at 28.)
These objections do not provide sufficient grounds to disregard Womack's testimony in its own right, let alone to disturb an implicit credibility finding already made by the state court, as described above. The characterization of Martinez's appearance and emotional state is of course a matter of interpretation, and in any event not directly relevant to the eyewitness testimony on the issue of whether she volunteered to accompany Reyes to Boat Ten. And two unrelated criminal convictions, both at least sixteen years old, do not comprise a compelling reason to disregard the testimony of a disinterested witness who had no interactions with either of the parties since the time they worked together briefly in 2002.
In sum, Womack's eyewitness testimony moves the needle sufficiently to make it more likely than not that Martinez's contrary account of her trip to the boat constituted intentionally false testimony.
Fourth, petitioner alleges that Martinez falsely testified by repeatedly answering "no" when asked at trial whether she "f[ound] him attractive" or was "sexually attracted to the defendant" at any point during the time they worked together. (Pet.'s Suppl. Mem. at 14-16 (quoting Tr. at 442-43).) At trial, Reyes portrayed their relationship as one based on mutual attraction and flirtation, leading up to consensual intercourse instead of rape, and Martinez's denials of any attraction undercut that defense.
Two witnesses have subsequently provided statements calling Martinez's account into question. Womack testified in her 2012 affidavit and at the 2013 hearing that she observed "more than one" occasion on which Martinez, speaking to a female coworker, expressed romantic or sexual interest in Reyes. Womack recounted witnessing Martinez and her interlocutor "gawking over" Reyes, describing him as "cute" or "hot," representing that they "would do him" (i.e., have sex with him) "in a minute." (H. at 5-6, 20-23; Womack 2012 Aff. ¶ 7.) Burroughs stated in her affidavit that Martinez expressed a feeling that Reyes was "hot" and that "she wanted to become involved with William sexually," asking "whether [Burroughs] knew if William had a girlfriend or wife." (Burroughs Aff. ¶¶ 12, 14.) Womack and Burroughs both also asserted that they had observed Martinez "flirting" with Reyes on July 2, the day of the alleged rape. (Id. ¶ 13; Womack 2012 Aff. ¶ 9.)
Respondent now contends that the behavior witnessed by Womack and Burroughs amounts to "a display of teenage bravado, at most," and the language attributed to Martinez "does not necessarily evidence a genuine sexual attraction." (Resp't's Suppl. Mem. at 42.) The "necessarily" in this sentence gives the game away. Although Martinez's subjective experience of attraction is of course not a matter that any proof could resolve with absolute certainty, the preponderance of the evidence now suggests that her testimony on this point was intentionally false. Petitioner has produced multiple witnesses who observed Martinez stating the opposite of what she testified to at trial, and acting consistently with her out-of-court statements, both in and out of Reyes' presence.
Respondent's contrary "bravado" theory rests on mere speculation rather than any countervailing evidence. It arguably offers a plausible alternative justification for Martinez's behavior at Circle Line, to which several employees have ascribed a sexualized and unprofessional workplace atmosphere in the summer of 2002.
Though the Court cannot know Martinez's mind with certainty, the evidence of her previous statements and behavior suggests that she perjured herself when she testified that she was never attracted to Reyes.
Fifth and finally, petitioner submits that Martinez perjured herself by testifying that she was unable to use her cell phone in the group home where she resided at the time of the alleged rape. (Pet.'s Suppl. Mem. at 16.) This question bears (if rather remotely) on the veracity of Martinez's account of her interactions with Serita Godby, one of three prompt-outcry witnesses who testified for the prosecution. (Tr. at 180-202; see also Pretrial Transcript, Doc. 8 at 17-24.) Martinez spoke to Godby by phone the evening after the rape, but waited until they met in person, the next morning, to tell her what had happened. Martinez testified that the reason for this delay was that the group home's landline phone was in a public area that would not have allowed her privacy during her conversation. (Tr. at 86, 140.) Although she admitted that she had a cell phone and a private bedroom of her own, Martinez testified that she could not have used the cell phone to talk privately with Godby that evening, for two reasons:
(Id. at 141.)
In a 2012 affidavit, Rosalie Davis — a counselor at the group home in 2002 — contradicted much of this testimony. Davis confirmed that the group home's rules prohibited the residents from using cell phones, although they were permitted to possess them. Nevertheless, according to Davis, the residents, "including Ms. Martinez, often used their cell phones while on the premises of the Home," and "[t]here was no difficulty with cell phone reception at the Catholic Guardian Home." (Davis Aff., Doc. 71 Ex. K ¶¶ 14-15.) Davis testified to the same facts at the 2013 hearing. (H. at 47-48.)
These statements cast doubt on the truthfulness of Martinez's testimony here. But Davis's own credibility is undermined by the fact that on the witness stand, she disavowed another, highly significant portion of her own sworn affidavit, where she claimed to have witnessed a social worker "quizz[ing]" Martinez "about whether she had in fact been raped or whether this was another story she was making up." (Davis Aff. ¶ 12.) In fact, as Davis admitted at the 2013 hearing, she was not even in the room during Martinez's conversation with the social worker. (H. at 49-53.) None of the possible explanations for the presence of this blatant falsehood in her affidavit — whether she told the lie herself and then changed her story, or whether it was inserted into her affidavit at the behest of petitioner's unscrupulous investigator, Joseph Dwyer,
Additionally, there is at least some ambiguity as to the meaning of Martinez's statement at trial that there was no reception "in my area" or "in my home." (Tr. at 141.) It is possible that Martinez meant that the signal was bad in her private room, as opposed to the public areas of the home — an interpretation that is at least not expressly contradicted by Davis's testimony. Between these reasons for uncertainty and the equipoise of Martinez's word against Davis's, the preponderance of the evidence does not show that Martinez's testimony regarding her cell phone was perjury.
A showing of perjury at trial does not, without more, establish a due process violation. Petitioner must also show a "reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis added).
The state court did not decide this question. Instead, as noted, Justice Pickholz denied the perjury claim "out of hand" for failure to show the separate necessary element of knowledge on the part of the prosecution.
Justice Pickholz made a somewhat related finding in the course of dismissing petitioner's claim for ineffective assistance of counsel, which is no longer before this Court. Applying the prejudice prong of Strickland v. Washington — which requires a defendant to "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," 466 U.S. 668, 694 (1984) (emphasis added) — the state court found it "not reasonably probable to believe" that the new witnesses' testimony, "alone or in conjunction with the other evidence that the defense presented at trial, would have resulted in a different outcome." (2013 Pickholz Post-Hearing Order at 5-6 (emphasis added).)
That finding — though it is due all proper deference under AEDPA — does not govern the analogous element of Reyes' perjury claim, for which "[t]he standard for setting aside a conviction . . . is less demanding than it is in the case of ineffective assistance of counsel." United States v. Tarricone, 11 F.3d 24, 27 (2d Cir. 1993), withdrawn and superseded on other grounds, 21 F.3d 474 (2d Cir. 1994). Would is not could. See, e.g., Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (per curiam) ("[Defendant] need not show that he more likely than not would have been acquitted had the new evidence been admitted. He must show only that the new evidence is sufficient to undermine confidence in the verdict." (internal quotations and citation omitted)).
Indeed, the "could have" materiality bar is so low that it has been said to make relief "virtually automatic" upon a showing that the prosecution knowingly used perjury at trial. United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991) (internal quotation omitted). This is because "once it is shown that a material witness has intentionally lied with respect to any matter, it is difficult to deny that the jury, had it known of the lie, `might' have acquitted." United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975).
Petitioner has met this burden by a preponderance of the evidence. It is true that Martinez's credibility at trial had already been impeached, most notably when she admitted to lying on the witness stand by denying her responsibility for an incident in which she and other teenagers had set fire to a mattress. (Tr. at 40-41; 456-58.) But "the presence of other impeaching material available to the jury" does not preclude the reasonable likelihood that the newly uncovered perjury could have changed the verdict; the exposure of additional lies "could have created a sufficient doubt in the minds of enough jurors to affect the result." United States v. Seijo, 514 F.2d 1357, 1364 (2d Cir. 1975). Though none of the perjury goes directly to the ultimate issue of Reyes' guilt or innocence, the false testimony touches on enough issues of importance that it is reasonable to suppose that it could have swayed the result at trial.
Supreme Court precedent dictates that even the intentional admission of materially false testimony does not make out a claim for a due process violation if the perjury was not known to the prosecution. The Second Circuit has thus directed this Court to make a factual finding as to "whether the prosecution knew or should have known of the evidence suggesting perjury at trial." (Mandate at 2.) Fatally to petitioner's claim, the answer is no.
Petitioner does not contest those findings; he now concedes, as he must, that "[t]here is no basis for concluding that the prosecution knew or should have known about" the vast majority of the evidence arrayed above. (Pet.'s Suppl. Mem. at 27.) The only evidence he now argues that the prosecution knew or should have known about is the Rosario material allegedly indicating personal conversations between Martinez and Reyes. (Id. at 26-27.) But as discussed, that evidence does not show perjury by Martinez on this point.
The knowledge requirement thus puts petitioner's claim in a difficult spot: he concedes that the prosecution had no actual or constructive knowledge of what evidence does suggest perjury, and the only evidence the state did know about does not show that Martinez perjured herself.
The prosecution's ignorance at trial of any of the evidence now suggesting perjury suffices to defeat petitioner's claim. However, the Second Circuit has directed this Court to make an additional factual finding as to "whether Appellant waived the claim by failing to uncover, through due diligence, the evidence in time for trial or direct appeal." (Mandate at 2.) A defendant can overcome this barrier "by showing that the claim is based on newly discovered evidence that could not reasonably have been discovered before." United States v. Helmsley, 985 F.2d 1202, 1206 (2d Cir. 1993).
Petitioner has met his burden here. As analyzed above, the evidence suggesting that Martinez likely perjured herself comes from affidavits submitted by Womack, Pearson, and Burroughs, as well as live testimony by the first two of these witnesses in 2013. In dismissing petitioner's separate claim for ineffective assistance of counsel, Justice Pickholz reasonably found that Reyes' trial counsel conducted an effective investigation into potential witnesses and could not be faulted for failing to adduce testimony from these individuals at the time. (2013 Pickholz Post-Hearing Order at 2-3, 5-6.) It appears from Womack's testimony that she and other Circle Line employees were indeed approached after the incident by a private investigator for the defense, who "came offering us a card saying he wanted information on what happened."
Justice Pickholz did reasonably rule, as to the FLIK Report, that Reyes "has not established that he could not have discovered its existence before trial with due diligence." (2006 Pickholz Order at 5.) As the state court explained, the document appears to have been "completed well before trial," but Reyes "apparently made no effort to subpoena Circle Line or its parent company for employee records and materials pertaining to the incident" — despite the fact that "the assistant district attorney provided the defense with discovery material clearly indicating that FLIK's human resources department had been notified of the incident and that a department representative was present when [Reyes' boss] Khanii spoke with the complainant." (Id. at 6.) But as iterated and reiterated above, because at least the information in the report does not suggest likely perjury by Martinez, the lack of due diligence on this score makes no difference.
Hence, whatever the other problems with the perjury claim, the doctrine of waiver does not present an independent barrier for Reyes.
Petitioner's second claim on remand is that the prosecution denied him due process by withholding the exculpatory evidence in the FLIK Report from the defense at trial. (Pet.'s Pro Se Mem., Doc. 2 at 5-10.) "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Justice Pickholz denied this claim on two distinct grounds: first, as quoted above, "there is no reason to believe that the prosecution was in possession or control of the timeline, or that it even had actual or constructive knowledge of the document," and second, "none of the statements at issue constitute Brady material" because "although they arguably provide material for impeachment, the statements are not exculpatory." (2006 Pickholz Order at 10 (citation omitted).)
The second of these reasons was incorrect because lilmpeachment evidence, . . . as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676 (1985). But the first reason — the dearth of any evidence that the government possessed or even knew about the FLIK Report — remains uncontradicted. The state cannot suppress evidence of which it is unaware. See, e.g., United States v. Skelly, 442 F.3d 94, 100 (2d Cir. 2006). As addressed above, petitioner has presented no evidence to show that Justice Pickholz's finding on this first point was erroneous, let alone unreasonably so. See Parker v. Matthews, 132 S.Ct. 2148, 2152 (2012) (per curiam) (where one "ground was sufficient to reject [a] claim,. . . it is irrelevant that the court also invoked a ground of questionable validity").
Pursuant to 28 U.S.C. § 2253(c)(2), the Court may issue a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." As interpreted by the Supreme Court, "[t]hat standard is met when `reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner.'" Welch v. United States, 136 S.Ct. 1257, 1263 (2016) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Dismissing Reyes' perjury claim requires a sufficient number of judgment calls — in particular, on the questions whether (and which) discrepancies identified by Reyes amount to willful falsehoods — that reasonable minds can differ with the conclusion reached above.
For the foregoing reasons, the Court finds that:
TT IS HEREBY ORDERED that:
Reyes v. Ercole, No. 06-CV-5525, 2009 WL 790104, at *1 (S.D.N.Y. Mar. 25, 2009). Of these six claims, four are no longer at issue, after this Court denied relief and the Second Circuit declined to grant a certificate of appealability with respect to them.
Reyes also contends that he may obtain relief, even without proving that the prosecution had constructive knowledge of the perjury, "if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." United States v. Ferguson, 676 F.3d 260, 282 n.19 (2d Cir. 2011) (internal quotation and alteration omitted). That additional ground for relief is found only in Circuit precedents arising from direct appeal of a district court decision, and hence is not "clearly established federal law" applicable to this case. See Channer v. Brooks, 320 F.3d 188, 196 (2d Cir. 2003) (per curiam).
Sassok testified at trial and confirmed that Martinez told her that Reyes had kissed Martinez on June 27, 2002. (Tr. at 277.) Sassok did not, however, testify as to whether Martinez told her that Martinez had relayed the same information to Pearson on the day of the kiss.
(FLIK Report at 4, 7.)
(Id. at 489.)
