By Matthew Keller
Lopez v. Miller, No. 02 Civ. 3988
(E.D.N.Y. M&O filed Jan 16, 2013)
When I read this case out of the federal court in Brooklyn back in January, I was excited to post about it. But eventually so much time passed that I was afraid any post would be time-barred (like AEDPA, HCB's head honcho JK sets a high standard for timely blogging). But the Supreme Court's decision in McQuiggin v. Perkins a couple of weeks back opened a door for me. That case confirmed that there is an actual innocence exception to AEDPA's one-year limitations period. However, Lopez v. Miller applied this exception back in January . . . and went on to grant a 2254 petition based on ineffective assistance of trial counsel. A couple of months later, the court took the extraordinary step of forbidding New York from retrying the defendant, and ordered his release. In response to Justice Scalia's anti-habeas diatribe in the McQuiggin dissent (discussed in JK's recent post on McQuiggin), I think it's appropriate to illustrate the type of case that McQuiggin now allows federal courts around the nation to address.
Judge Garaufis’ opinion in Lopez is interesting for several reasons. As I've already said, it foreshadowed McQuiggin by applying an actual innocence exception to an untimely habeas petition. In doing so the court was following the Second Circuit's ruling last year, in Rivas v. Fischer (see HCB post here), that such an exception was required by due process. Lopez is also rare in that the court grounded its habeas grant on a § 2254(d)(2) finding that the state court decision was based on unreasonably determined facts, as opposed to an unreasonable application of Constitutional law.
Lopez is also noteworthy for reasons outside of habeas corpus law. First, it has federalism implications; rarely does a federal judge take a state’s criminal justice system (and, especially, a state judge) to task as roundly as Judge Garaufis did here. Garaufis wrote that the state court judge’s unexplained refusal to hold an evidentiary hearing to explore new evidence of innocence was “baffling” and resulted in a loss of important evidence (by the time the federal court hearing, two alibi witnesses were unavailable).
Second, Lopez is a stark example of justice delayed being justice denied. Mr. Lopez filed his original § 2254 petition pro se in 2002. Eleven years later a habeas court ruled that his state court murder conviction must be vacated because it resulted from a self-evidently bad witness ID, a lying prosecutor, and a baffling indifference to both of these by the state court judge.
A “Rotten” Case
“The case of William Lopez began twenty-three years ago. It was rotten from day one.” So begins Judge Garaufis’ 85-page M&O describing Lopez’s conviction for the 1989 murder of a Brooklyn drug dealer. Pursuant to that conviction Lopez spent 23 years in prison. Garaufis is unusually free with criticism of how New York state's criminal justice machinery operated in this case: at one point he notes that, “the prosecution’s evidence was flimsy to begin with and has since been reduced to rubble by facts arising after trial.” But he saves the real fireworks for the conclusion:
“Lopez’s habeas case presents a number of close legal issues, both because of the stringent standards governing federal habeas review and because of the unavailability of many key players. But what is far from close in the court’s view is that Lopez has been wronged by the State of New York. This wrongdoing has ranged from an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared defense attorneys; to a bewildering jury verdict; and to the incomprehensible [New York Supreme Court] Justice Demarest, who so regrettably failed time and time again to give meaningful consideration to the host of powerful arguments Lopez presented to her. The result is that a likely innocent man has been in prison for over twenty-three years. He should be released with the State’s apology.”
The State should apologize?!? I'm no historian, but I can't help thinking that it was humbling commands like this from Supreme authorities (i.e., the Crown) to the States that led in part to the American revolution. Maybe that's why, even today, such direct criticism of state government by federal authorities is still rare. And criticism in defense of a man convicted of murder? Even when a man has been exonerated, many states in our nation treat him with slightly-concealed disdain (by, for instance, passing laws denying compensation to an exoneree who “contributed” to their wrongful conviction via a coerced confession or a guilty plea).* What could have Judge Garaufis so exercised that he would suggest that a State actually apologize?* Such laws are an affront to our country’s tradition of liberty. But I digress.
Justice Delayed . . . A Really Long Time
Lopez has a long procedural history that is worth summarizing. Elvirn Surria dealt drugs in Brooklyn. Late one night in 1989, two men shot and killed him in a Coney Island crackhouse. A jury convicted Lopez of murder based entirely on the testimony of two witnesses, only one of whom identified Lopez in court. That witness, Janet Chapman, testified that she saw the shooting through a half-open doorway. She also testified that she had smoked ten to twelve vials of crack in the two hours prior to the shooting. The second witness came face-to-face with the shooter, and spoke with him, but could not recognize Lopez when she saw him in the courtroom. During the trial New York Justice Carolyn Demarest stated that it was “not possible this defendant could have committed the crime” based solely upon the second witness’ testimony.
Fast forward ten years. Lopez’s state court appeals have all been denied. In July 2002, he filed a pro se § 2254 Petition. Almost two years later, in April 2004, the district court dismissed the petition as time-barred, since it was filed more than a year after the 1996 passage of AEDPA. (Query number 1: Even granting the huge backlog of habeas cases in the Eastern District of New York, how on Earth does it take a federal court two years to determine that 2002 comes after 1997?)
Lopez moved for reconsideration of the dismissal, arguing actual innocence. Shortly after his trial, Chapman told Lopez’s brother that she had falsely ID’d Lopez because of pressure from the police. Ultimately, she provided an affidavit recanting her ID and stating that she testified falsely based on the trial prosecutor's promise that she’d get out of jail on drug charges if she testified. And the kicker: Chapman also stated that “the district attorney told me never to tell anyone that we cut a deal about my testimony in exchange for my freedom.”
Judge Garaufis was concerned enough about these allegations that he granted the motion to reconsider and, in 2005, appointed a lawyer to investigate. Fast forward another four years. During that time counsel learned, among other things, that Chapman had died (Query number 2: why did that take four years to figure out?) In 2009, Lopez moved to stay and abey his habeas petition so that he could exhaust state remedies. A year later, Justice Demarest denied Lopez’s motion to vacate his conviction on the grounds that there was “strong evidence of guilt” at Lopez’s trial.
One year after that, in November 2011, Lopez filed an amended 2254 petition. In July 2012, Judge Garaufis ordered an evidentiary hearing on Lopez’s gateway actual innocence claim and his 2254 claim of ineffective assistance. The court heard testimony from Lopez, his brother, and the trial prosecutor, Tess Allen. In January 2013, the court reopened the hearing to allow new evidence from Cesar Diaz, who appeared via video conference from the Dominican Republic. Diaz, who was present at the scene of the murder, was shown a mug shot of Lopez taken soon after the crime and testified that he was “certain” that the person in the picture was not the shooter.
Based on the new evidence presented at the habeas hearing, the court found Lopez’s gateway actual innocence claim to be credible (that is, “supported with new reliable evidence . . . not presented at trial”) and compelling (in that it warranted a conclusion that “more likely than not any reasonable juror would have reasonable doubt” if it had heard the new evidence), as required by the Second Circuit’s decision in Rivas. In fact, the court stated that the new evidence was largely beside the point: “Even without the benefit of Lopez’s new evidence, a reasonable juror would likely have serious questions about Lopez’s guilt.” The court called the case as presented to the jury a “toss-up at best” and took another swipe at Justice Demarest’s conclusion (in denying state post-judgment relief) that there was “strong evidence of guilt.” That finding, the district court said, “contains no explanation and is, frankly, outlandish given the circumstances described above. The court gives it no deference.”
Through the Gateway. . . .
After the court admitted Lopez through the actual innocence gateway, it sustained his claim of ineffective assistance on the infrequently-used 2254(d)(2) ground that Justice Demarest’s decision denying Lopez’s IAC claim was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Essentially, the court found that Justice Demarest could not effectively evaluate the claim because she had refused to hold a hearing to resolve a credibility dispute between Lopez’s trial lawyer, who said he interviewed two potential alibi witnesses, and the witnesses themselves, who said he did not. The failure of the state court to resolve this credibility dispute via a hearing led to a “materially incomplete” state court analysis and, as a result, the state court decision was unreasonable.
The court then moved to the merits of Lopez’s IAC claim and found that trial counsel had been ineffective in failing to call either of two potential alibi witnesses. Judge Garaufis ordered New York to release Lopez within sixty days “unless [it] has, by that point, taken concrete and substantial steps expeditiously to retry [him].”
Following the decision, New York re-arraigned Lopez on murder charges, but after that failed to "offer[ ] any other proof that it intends to promptly retry him." Accordingly, on March 20, 2013, Garaufis ordered Lopez to be "immediately and unconditionally released" from custody. He also ordered that "the State is BARRED from retrying him for the August 31, 1989, murder of Elvirn Surria" and "the State shall EXPUNGE Lopez’s conviction from its records and all references to him in the public record." The court stated it was taking the rare step of forbidding a retrial because it was "convinced that this is one of the extraordinary cases that warrants an unconditional discharge with no future threat of retrial." In justifying its order, the court took a final shot at New York's handling of the case: "due to the errors of a State court judge, a State prosecutor, and counsel, Lopez was subjected to an unconstitutional deprivation of liberty for twenty-three years."
I have to say that Lopez did not have a slam-dunk IAC claim. Judge Garaufis seemed to recognize this - he found that trial counsel was not deficient for failing to interview the potential alibi witnesses (there wasn't sufficient evidence to figure out whether he had) but rather for failing to call them at trial. But counsel had explained to Justice Demarest at the trial that he had considered calling them but had decided that the jury would likely not find them credible. In my experience, federal habeas courts almost always defer to such strategic decisions by trial counsel. In any event, I think its safe to say that this IAC claim could have gone either way. What really drove the district court, I think, was the state court's repeated failures to examine the case as the evidence of a wrongful conviction mounted (especially the evidence that the prosecutor had deceived the trial court about its deal with Chapman). Here, the district court was able to justify the habeas grant on an iffy IAC claim in light of several breakdowns during trial. So we will have to keep waiting for the case where a defendant with a credible and compelling claim of innocence does not have a colorable claim of a Constitutional violation.
As far as I can tell, New York State has not yet apologized to Lopez. And as the history of this case shows, the State did not do much to help him, even after it became clear that there were serious problems with his conviction. But karma finds a way: New York ultimately did play a role in helping to free Lopez. Another exoneree, Jeffrey Deskovic (released in 2006 after serving 16 years for rape and murder based on a coerced confession), used some of his $8M settlement with the State to start a foundation to assist other inmates with credible innocence claims. Deskovic's foundation partly funded Lopez's habeas case.