*Judge Jed S. Rakoff, of the United States District Court for the Southern District of New York,

sitting by designation. 16

‐ 4053

Fernandez v. Capra



# United States Court of Appeals

**for the Second Circuit**

A UGUST TERM 2018

No. 16

‐ 4053

P ABLO F ERNANDEZ

,

Petitioner

‐ Appellant

,

v.

M ICHAEL C APRA

, Respondent

‐ Appellee

,

C HRISTOPHER A RTUZ

, P HILIP H EATH

, C HARLES GREINER

, Respondents

.

A RGUED : D ECEMBER 12, 2018

D ECIDED : F EBRUARY 22, 2019

Before: J ACOBS

, C ALABRESI

, Circuit Judges ; R AKOFF ,* District Judge

.

Pablo Fernandez appeals from a judgment of the United States District

Court for the Southern District of New York (Woods, 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 of2 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.

M AIA S. L ICHTENSTEIN ( WITH D AVID W.

B ROWN

, D ANIEL J. B ELLER

, J ONATHAN

S ILBERSTEIN

‐ L OEB ON THE BRIEF ), P AUL

,

W EISS

, R IFKIND

, W HARTON & G ARRISON

LLP, N EW Y ORK

, NY.

S HEILA A NNE M ARIE O’S HEA

, A SSISTANT

D ISTRICT A TTORNEY

, FOR C YRUS V ANCE

,

D ISTRICT A TTORNEY FOR N EW Y ORK

C OUNTY

, N EW Y ORK

, NY.

D ENNIS J ACOBS

, 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 and3 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 (Woods, 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.4 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 135 th 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.5 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.6 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 red7 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 135 th 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.8 George testified that he was riding his bicycle on West 135 th 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 135 th 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.9 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.10 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.11 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 30,12 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 satisfy the

high standard for relief under AEDPA. Judge Wood adopted the

recommendation, largely for the same reasons, and entered judgment in favor of

the respondents.

This appeal ensued.

II. STANDARD OF REVIEW

III. BRADY

“There are three components of a true Brady violation: [1] The evidence at

issue must be favorable to the accused, either because it is exculpatory, or

because it is impeaching; [2] that evidence must have been suppressed by the

State, either willfully or inadvertently; and [3] prejudice must have ensued.”

Strickler v. Greene, 527 U.S. 263, 281–82 (1999).

Fernandez argues that the state court unreasonably applied clearly

established federal law when it concluded: (i) that, because the prosecutors

promptly disclosed the evidence of Officer Melino’s misconduct to his counsel,13 there was no Brady violation; and (ii) that any Brady violation was, in any event,

harmless.

A.

As to the timing of the disclosure, the only witness at the state court

hearing was the Chief of the Official Corruption Unit of the New York County

District Attorney’s Office, William Burmeister, who offered the following

testimony.

Fernandez’s trial ended in the jury verdict on February 6. On January 30,

1996, Burmeister learned in an internal NYPD meeting that the Internal Affairs

unit had received a “log” that morning that Officer Melino had been involved in

the sale of narcotics. The tip had come from the New York State troopers, who

had initially conducted the investigation. On February 5, Burmeister met with

the NYPD officers who had interviewed the troopers. The NYPD officers

reported that they had been told that Officer Melino had been investigated in

1991 and 1992 regarding the sale of 500 grams of cocaine, as well as proposed

additional sales of additional kilos of cocaine.

On February 6, Burmeister interviewed the state troopers, one of whom

had negotiated the drug sale with Officer Melino while undercover. The14 troopers also brought tapes, photographs, and documents that supported their

allegations, and Burmeister reviewed at least part of one of the tapes at the

meeting. The same day, the troopers provided copies of all of the tapes to the

NYPD Internal Affairs Unit. Burmeister began reviewing the tapes on February

7, he finished his review on February 8, and ordered Officer Melino’s arrest that

same day. The prosecutors disclosed the arrest to Fernandez’s counsel on

February 15.

The state court denied the Brady motion, concluding that the prosecutor’s

duty to disclose the evidence was not triggered until February 8, 1996 (two days

after the jury verdict), because until then the evidence of Melino’s drug dealing

was only speculative, and because the prosecution disclosed the evidence

promptly thereafter. 2 See United States v. Agurs, 427 U.S. 97, 109 n.16 (1976)

2 The state court stated in full:

In the instant case, ADA Burmeister had only an unconfirmed

allegation that Officer Melino had sold narcotics approximately four years

ago to an undercover New York State trooper. The court finds that after

receiving this information on January 30, 1996, ADA Burmeister

investigated the allegations in an expedient and professional manner. He

met with the law enforcement agents involved in the investigation

including the undercover officer, examined the documents available and

listened to the audiotapes. Once he decided that the allegations had merit,

he ordered that the defendant be arrested and the arrest took place on15 (noting that the prosecution need not disclose “preliminary, challenged, or

speculative information”). Fernandez argues that this was an unreasonable

application of clearly established federal law. We agree.

On February 6, Burmeister met with the two State Troopers who had

investigated Officer Melino, including the trooper who negotiated the narcotics

sale with Officer Melino while undercover, and questioned the troopers “at some

length.” App’x 1342. Having spoken to the state trooper who actually

participated in the drug sale with Officer Melino, Burmeister’s knowledge of

Officer Melino’s wrongdoing was no longer “preliminary, challenged, or

February 9, 1996. The People promptly notified defense counsel that

Officer Melino had been arrested.

The court finds that the People’s Brady obligation was not

triggered until February 8, 1996, the day the People reviewed the

audiotapes and concomitantly ordered the arrest of the defendant. Up to

this point, the court finds that the allegations were presumed to be more a

matter of supposition than substance. Thus, since the People were under

no duty to disclose this information to the defendant until February 8,

1996, which was after the jury reached its verdict, the defendant’s motion

is denied.

App’x 1392.16 speculative”. Agurs, 427 U.S. at 109 n.16. The source was sufficiently credible to

trigger a disclosure obligation on February 6.

The state court concluded that “[t]he People’s Brady obligation was not

triggered until February 8, 1996, the day the People reviewed the audiotapes and

concomitantly ordered the arrest of the defendant.” App’x 1392. The state court

found that Burmeister “investigated the allegations in an expedient and

professional manner.” App’x 1392. But while Burmeister may have reasonably

sought a high degree of certainty in the credibility of the accusation before

ordering the arrest of a NYPD officer, it was not reasonable for Burmeister to

delay the disclosure to Fernandez of credible evidence from an undercover

officer that Officer Melino had negotiated a sale of cocaine.

The state court also relied on Burmeister’s skepticism of the allegations

against Officer Melino. See App’x 1391 (“ADA Burmeister testified and the court

finds as a fact that he did not attempt to contact anyone regarding Melino prior

to reviewing the audiotapes because he assumed that law enforcement officials

would have followed up on this information sooner if it were reliable.”). But “if

there were questions about the reliability of the exculpatory information, it was

the prerogative of the defendant and his counsel

‐‐ and not of the prosecution

‐‐ to17 exercise judgment in determining whether the defendant should make use of it.”

DiSimone v. Phillips, 461 F.3d 181, 195 (2d Cir. 2006).

Accordingly, we conclude that the state court’s determination that no

Brady obligation arose until February 8, 1996 was an unreasonable application of

clearly established federal law.

B.

However, the state court denied the motion on the alternative ground that

any Brady violation was, in any event, harmless. 3 This was a reasonable

application of clearly established law.

3 The state court concluded:

Impeachment material may be exculpatory in some cases as probative of

the credibility of a witness, especially where the testimony is critical to the

People’s case. See People v. Steadman, supra. However, Melina ʹ s

testimony was largely collateral to the issues at trial. He did not testify to

seeing the defendant commit the murders or fleeing the scene but told the

jury of his unsuccessful attempts to locate certain witnesses. Instead, the

People called four eyewitnesses to the shooting and one witness who was

present when the defendant bragged about committing the murder.

In light of this evidence against the defendant, defense counsel’s claim

that she would have employed a different trial technique is spurious. The

main witnesses against the defendant were the four witnesses to the

homicide and the witness who discussed the defendant’s admissions.

Officer Melino’s prior drug sale is totally irrelevant to this critical

testimony and would have been of no avail to counsel in cross examining

these witnesses.18 Fernandez argues that evidence of Melino’s drug deals would have been

powerful impeachment material at his trial. The state court acknowledged that

“[i]mpeachment material may be exculpatory in some cases as probative of the

credibility of a witness, especially where the testimony is critical to the People’s

case.” App’x 1393. But the court reasonably concluded that the impeachment

material would have been of little value to Fernandez’s counsel given that

Melino’s testimony was “largely collateral to the issues at trial”, “ministerial in

nature”, and “totally irrelevant to th[e] critical testimony” “of four witnesses to

the homicide and the witness who discussed the defendant’s admissions.”

Finally, as the People indicate in their response, if they knew of the

allegation against Officer Melino, they would not have called him as a

witness since his testimony was cumulative.

The court finds that Melino’s testimony was ministerial in nature and not

material to the issue of the defendant ʹ s guilt. Furthermore, the charges

against Melino involve activities that occurred allegedly prior to his

becoming a police officer. In evaluating the allegations against Melino and

the limited nature of his testimony, the court finds that had the defense

been aware that Officer Melino was accused of selling a half

‐ kilo of

cocaine in 1991/92, prior to becoming a New York City Police Officer,

there is no reasonable probability or possibility that the result would have

been different. Although the defendant may have found some productive

use of the undisclosed information concerning Melino, that is simply not

enough to transform it into Brady material. See People v. Howard, 127

A.D.2d 109 (1st Dep ʹ t 1987).

App’x 1393.19 App’x 1393. A review of the record reveals that this characterization of Officer

Melino’s testimony (and the other evidence offered at trial) is well

‐ supported.

Officer Melino testified at trial primarily about his work on the investigation,

including his efforts to locate witnesses and his assistance in arranging lineups

for Hickliff and George. And, at the time the state court considered this motion,

there were four eyewitnesses who had unequivocally identified Fernandez as the

shooter.

On appeal, Fernandez argues that his trial counsel might have uncovered

evidence of witness tampering if his counsel had cross

‐ examined Officer Melino

about his prior drug sales. But the state court reasonably credited the State’s

assertion they would not have called Officer Melino as a witness if they knew of

the drug allegations against him. Moreover, the bad act evidence that would

have been used to impeach Officer Melino (sale of drugs) does not directly

implicate the allegations of wrongdoing at trial (suborning perjury), making it

less likely that cross

‐ examination would have achieved such a revelation.

Fernandez points out that the recantations by the Rosarios and Canela

support his argument that his attorneys would have discovered investigative

misconduct if they were aware of Officer Melino’s drug dealing. But at the time20 the state court made its decision, these witnesses had not recanted, and, as the

First Department then noted, “[t]here is not one iota of evidence that the

identifications were the product of coercion or suggestion, or that Melino

harbored some secret motive to influence four witnesses to falsely implicate the

defendant.” App’x 1444. We review the reasonableness of the state court’s

decision based on the evidence available to the state court at the time it decided

the motion. Given that there was no evidence of such misconduct at the time it

denied this motion, the state court acted reasonably.

Accordingly, the state court’s denial of Fernandez’s motion to set aside his

conviction on the basis of Brady was in no way an unreasonable application of

clearly established federal law.

IV.

Fernandez filed two motions for a new trial on the ground that the

prosecutors violated his right to a fair trial by knowingly offering perjured

testimony at his trial. On this appeal, he argues that the state court’s credibility

findings in these decisions were “unreasonable determination[s] of the facts in

light of the evidence presented at the State court proceeding.” 28 U.S.C.

§ 2254(d).21 “In order to be granted a new trial on the ground that a witness committed

perjury, the defendant must show that (i) the witness actually committed

perjury; (ii) the alleged perjury was material; (iii) the government knew or

should have known of the perjury at [the] time of trial; and (iv) the perjured

testimony remained undisclosed during trial.” United States v. Cromitie, 727

F.3d 194, 221 (2d Cir. 2013) (alteration in original) (quoting United States v.

Josephberg, 562 F.3d 478, 494 (2d Cir. 2009)).

A.

Fernandez’s first motion for a new trial, filed in 2003, was supported by

affidavits from the two Rosario brothers, in which they recanted their

identification of Fernandez as the shooter at trial, 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 the second victim of

the shooting, Henry Gomez, who swore that the person who shot him was not

Fernandez. Gomez had not been located at the time of Fernandez’s trial.

The state court held a five

‐ day hearing on the motion at which, among

others, Hickliff and Gomez testified.22 Hickliff testified that he lied when he testified at Fernandez’s trial; that,

contrary to his trial testimony, Fernandez was not the shooter; and that

“[e]verything is different” about the appearance of the shooter as compared to

Fernandez. App’x 1683. As to his photo array identification, Hickliff testified

that he “d[id]n’t see the shooter [in the photo array],” but was convinced to

choose Fernandez’s photo by Officer Melino, who “had his finger on number

four like that so [Hickliff’s] focus was just there.” App’x 1673

‐ 74. He identified

Fernandez at trial because he was “brain

‐ washed, you know, to pick him out,”

and “never believed it [was him]” but he “just went along with what the

detective was telling [him].” App’x 1685.

Gomez testified that, on the day of the murder, he was standing in front of

504 West 135 th street when “a car pulled up and a man came out and with a like a

type of like an Uzi and he started shooting us all.” App’x 1549. He testified that

he “g[o]t a good look at the man who got out of the car,” and that it was not

Fernandez, who did not look “anything like [the man who shot him].” App’x

1550

‐ 52. Gomez decided to testify after two of Fernandez’s relatives approached

him in prison (where he was serving a term for kidnapping), and showed him a

picture of Fernandez, and explained that he had been convicted of Quintero’s23 murder. Gomez told them that Fernandez was not the shooter, and agreed to

testify in this case “[b]ecause [he] want[ed] to free someone who is innocent.”

App’x 1563.

The Government called Detective Connolly, the NYPD officer who

investigated the recantations of George and Hickliff. Detective Connolly testified

that he met with Hickliff in August 2004, that Hickliff said that he had gone to

Fernandez’s lawyer’s office with his mother (and Fernandez’s mother), and that

he signed a piece of paper that he had not read to “avoid [a] confrontation.”

App’x 1790

‐ 91. He also told Connolly that a man “started coming around the

neighborhood looking for him, [who h]e believed

. . . to be a relative of Pablo

Fernandez,” App’x 1791, and who had “offered him some money to stay

involved in it, but he refused the money and did not take it,” App’x 1791.

Hickliff also told Connolly that he had told the truth at trial when he accused

Fernandez. At the same hearing, Hickliff denied making any of these statements

to Connolly.

George Rosario did not testify at the hearing, and the state court’s decision

did not address his affidavit in which he recanted.24 The state court found that Hickliff’s recantation was incredible and that

there was therefore no basis to find that the prosecutor had offered perjured

testimony at Fernandez’s trial:

I did not find Mr. Rosario to be a credible witness. While he testified

that the defendant was not the shooter and described the

identification process, he avoided virtually every other question that

was put to him, claiming a lack of memory even as to recent events.

I also found credible Detective Connelly’s account that Mr. Rosario

had made statements several months earlier that contradicted his

testimony at the hearing.

. . . Given Hickliff Rosario’s lack of

credibility, I do not believe his recantation testimony would be likely

to affect the verdict.

App’x 35. 4 This was not an unreasonable finding in light of the evidence

presented at the hearing.

The record supports the state court’s finding that Hickliff was extremely

evasive during his testimony. Among other things, Hickliff did not remember:

particulars of the meeting at which he signed his recantation affidavit; details

from his affidavit; what he did when he walked into court on the morning of his

4 The state court also denied Fernandez’s motion for a new trial on the basis of new

evidence, finding that Gomez’s testimony was incredible, and therefore that Fernandez

had not established that the “new evidence is of such a character as to create a

probability that

. . . the verdict would have been more favorable to the defendant.”

App’x 35. Fernandez does not collaterally appeal the denial of his motion on this

ground.25 testimony; and anything about his initial meeting with the private investigator to

whom he recanted.

The state court’s finding that Detective Connolly’s testimony was credible

was supported by Connolly’s clear memory of the details of the meeting he

attended with Hickliff and what Hickliff told him at that meeting (including that

Hickliff had signed an affidavit that he hadn’t read and that he did not lie at

Fernandez’s trial). That testimony was supported by a memorandum that

Detective Connolly wrote soon after he met with Hickliff. Moreover, Connolly’s

testimony

‐‐ specifically, that Hickliff admitted to receiving an offer of money to

recant

‐‐ supplied a motive to lie, notwithstanding Hickliff’s statement that he

refused the money.

Accordingly, we defer to the state court’s reasonable finding that the

recantation of Hickliff was not credible, and conclude that the state court

reasonably denied Fernandez’s motion for a new trial.

B.

Fernandez’s second motion for a new trial, filed in 2010, was supported by

an affidavit from Jesus Canela, which recanted his identification of Fernandez26 and claimed that Officer Melino had coerced his accusation. The state court held

a five

‐ day hearing, at which the following evidence was offered.

1.

Canela testified that he identified Fernandez as the shooter at trial even

though he did not recognize him, did not believe that Fernandez had shot

Quintero, and had “[n]ever [seen Fernandez] in [his] life.” App’x 2523. When

asked why he falsely accused Fernandez, Canela testified that he was scared

because it was his first time in court, and he felt pressure from the detectives.

At Fernandez’s trial, Canela had testified that he was never shown any

photos by the detectives. At the hearing, however, Canela testified that he had

been shown a photo array by Officer Melino when he met with him two years

after the murder, and though he did not recognize anyone in the pictures, he

chose the picture of Fernandez because the detectives “were emphasizing one

specific picture, and that picture was shown to [him] over and over and over

again.” App’x 2522. The detectives told him that they “ha[d] the guy”, and it

was Fernandez; and they “actually helped [him] believe that [Fernandez] was the

guy.” App’x 2589. Canela also testified that the detectives told him where

Fernandez would be sitting in the courtroom when Canela testified.27 Canela’s wife, Edmonds, testified that Canela told her when they first

started dating in the early 2000s that he had falsely identified Fernandez and he

had felt coerced into making an ID.

The Government called Detective Tebbens, the officer who worked with

Officer Melino recanvassing the neighborhood where the homicide took place

before trial. Tebbens testified that, at Canela’s first meeting with them, he told

them what happened on the day of the murder, and gave a physical description

of the shooter. While Canela did not identify the shooter by name, he told the

detectives he would “recognize the shooter again if he saw him.” App’x 2622.

Detective Tebbens and Officer Melino then made arrangements to bring Canela

to the District Attorney’s Office, where he was interviewed by the Assistant

District Attorney. Detective Tebbens testified that he never showed Canela any

mugshots or photos at any time during the investigation; and that he never

observed Officer Melino showing Canela any mugshots or photos. He further

denied that he ever told Canela where Fernandez would be seated at the trial.

Officer Melino did not testify.28 2.

The state court denied Fernandez’s motion, finding that Canela’s

recantation was not credible and that there was therefore no basis to find that the

prosecutor had offered perjured testimony at the trial. Fernandez argues that

this credibility determination was an unreasonable determination of the facts in

light of the evidence presented at the hearing. See 28 U.S.C. § 2254(d). We agree.

A close reading of the state court decision demonstrates that its conclusion is

unsupported and unsupportable.

The state court’s decision opened with an acknowledgment that “the main

issue at the hearing was the credibility of Jesus Canela. Indeed, if his hearing

testimony were to be fully credited, then the defendant would be entitled to a

new trial.” App’x 44. Given the record facing the state court at the time of

Fernandez’s second motion, this was a sound observation. At that time, Officer

Melino had been compromised; two of four witnesses who identified Fernandez

at trial had recanted (one by affidavit); and the second victim of the shooting

(who had not been located at the time of trial) had come forward to say that

Fernandez did not shoot him. In light of this record, the credibility of Canela’s

testimony took on critical weight.29 The state court allowed that, “[a]t first blush, Mr. Canela’s hearing

testimony seemed somewhat plausible. A troubled teenager at the time of the

trial, he has become a responsible adult who has lived a stable, normal life for

some time.” App’x 44. This observation was well

‐ supported by the record.

Canela testified at the hearing that he was living with his parents in Harlem, that

he had been working as a cook at a restaurant for six years, and that he was a few

credits shy of receiving an associate degree from Monroe College in Hospitality

and Culinary Arts.

Moreover, the court found that “there [was no] showing at the hearing that

he had a motive to lie.” App’x 44. Again, this finding was well

‐ supported by the

record. There was no credited evidence at the hearing that Canela had been

threatened or coerced by Fernandez or any of his family members to come

forward with his recantation.

The court then acknowledged that Canela’s testimony had a ring of truth

in light of the allegations against Melino: “[Canela’s] primary assertion at the

hearing

‐‐ that he had been pressured and assisted by corrupt police officers into

giving false testimony at trial

‐‐ could not be rejected summarily, given his youth30 and lack of sophistication at the time coupled with the fact that one of the officers

was terminated for unrelated misconduct.” App’x 44.

The state court’s first negative observation about Canela’s testimony was

that his “demeanor at the hearing

. . . left much room for doubt,” specifically,

that Canela “came across as someone who was trying too hard to be convincing.”

App’x 44. While deference is owed to a judge who observed the witness’s

demeanor, see In re Payne, 707 F.3d 195, 201 (2d Cir. 2013), this observation is

underwhelming. Moreover, that same reason was the only reason given for

disbelieving Canela’s wife, who testified that Canela had confessed to her

‐‐ long

before

‐‐ that he lied at Fernandez’s trial.

The state court went on to question why Canela “had waited so long to

come forward” if he “had felt terrible about the situation for years.” App’x 44.

But the state court did not consider the compelling explanation that Canela

offered: “I did not tell [earlier] about the things I am telling you now, for the

simple fact, the reason that I was afraid myself.

. . . I did not want to get into any

more trouble with the law. So I did not say anything.” App’x 2580. Canela’s

recantation was a confession to a felony (perjury); it was unreasonable for the31 state court to place great weight on a citizen’s prolonged hesitation to voluntarily

place himself in peril of imprisonment.

The state court pointed out that, “like anyone who recants, we now know

that [Canela] has lied under oath on at least one occasion.” App’x 45. True

enough as far as it goes, and it is a useful canon about recantation. But this

observation says nothing about the one critical inquiry here, which is when he

lied, then or now

‐‐ and whether he lied to his wife in the years intervening. It is

not a sufficient basis for discrediting a witness’s recantation testimony, because it

is true of every witness who recants.

The state court then turned away from Canela’s testimony at the hearing,

and focused on his testimony at Fernandez’s trial:

Any lingering doubts concerning Mr. Canela’s credibility at

the hearing were put to rest by his trial testimony which I have read

and re

‐ read countless times. As I said, I can accept the possibility

that in the heyday of the crack epidemic in the 90’s a young person

might have been coached and even coerced by overzealous police

officers. But I find it very hard to believe that such a compromised

witness would be able to withstand the cross

‐ examination of a

highly

‐ skilled defense attorney. Even though Mr. Canela was an

unsophisticated teenager at the defendant’s trial, he not only stuck

to his story but he was also able to provide the kind of details on

direct and cross that one would expect from a truthteller.

App’x 45. As the court conceded, an 18

‐ year

‐ old witness would be vulnerable to

coercion by an overzealous cop. But the state court went on to discredit the32 recantation because Canela’s detailed testimony at trial could be “expect[ed]

from a truthteller”, App’x 45, and drew the (unaccountable) inference that if he

told the truth about facts and circumstances that he did not recant, he likely told

the whole truth. This amounts to very little.

As an initial matter, the state court judge did not preside over Fernandez’s

trial; so his determination that Canela’s testimony at that trial was credible is

therefore entitled to reduced deference. See In re Payne, 707 F.3d at 201 (“We

have given

. . . somewhat lesser deference to credibility findings based on an

analysis of a witness’s testimony.”). More important, much of Canela’s trial

testimony can be reconciled with his recantation. At trial, Canela testified

primarily about the circumstances of the murder: what he was doing that day,

what the car carrying the gunman looked like, where and how the car parked on

the street, what the shooter did when he emerged from the car, who was shot,

how the car left the scene, and who he spoke to after the murder. Canela’s

recantation does not cast doubt on any of these particulars, because, as the state

court acknowledged later in the opinion, Canela “has not recanted his testimony

regarding the manner in which the shooting carried out, including his

description of the car and the gun.” App’x 49.33 Canela’s recantation contradicts only a small part of his trial testimony,

regarding a few discrete (albeit critical) issues: who the shooter was, whether

Canela was shown mugshots by the detectives at any point, whether Canela was

told where the defendant would be sitting in court, and whether anyone took

notes during his meetings with the detectives and the Assistant District Attorney.

Over the nearly 100 pages of testimony on direct and cross

‐ examination, Canela

was asked fewer than 30 questions on these topics, and his answers did not

require detail or elaboration; Canela answered the majority of those questions

with a simple “no”. The credibility of monosyllables is difficult to glean from

reading a transcript. It was, therefore, unreasonable for the state court to infer

that Canela’s recantation was not credible simply because Canela provided

credible “details” and withstood “cross

‐ examination of a highly

‐ skilled defense

attorney” at Fernandez’s trial.

The state court did appropriately consider the portions of Canela’s trial

testimony that were directly contradicted by his recantation, specifically that he

“had not been shown any mug shots by the police, that no one had told him

where the defendant would be sitting, and that no one had been taking notes

when he was interviewed by the Assistant District Attorney.” App’x 46. But34 Canela explained twice during his testimony that he had lied at trial about these

issues because the detectives told him not to testify at trial about their

discussions. See App’x 2523 (“[T]hey mentioned that I don’t have to say

anything that they, you know, they asked me not to say.”); App’x 2588 (“I

testified untruthfully at trial because, when I met with the detectives, they told

me I don’t have to say anything that I speak with them, like anything that I talk

about with them doesn’t have to be said in court.”). A teenager’s admitted fear

of the detectives, and of appearing in court, lends plausibility to testimony that

he felt pressure to follow the detectives’ instructions regarding how to testify in

court (and what to testify about). Having found that Canela was plausible at first

blush, with the ring of truth, and no motive to lie, the state court offered no

reason to disbelieve this explanation.

The state court also discredited Canela because his testimony “regarding

the claimed efforts of police officers to solicit a false identification” was “short on

details.” App’x 45. The record demonstrates that Canela explained several times

how, at some length, and in detail why he felt pressured by the officers to

identify Fernandez in the photo array and to accuse him at trial. Canela testified

that the officers brought him to an office, they showed him some pictures, and35 they pressured him into identifying Fernandez by repeatedly emphasizing that

one photo:

Well, they were showing me pictures of the people they were

showing me, but they were emphasizing one specific picture, and

that picture was shown to me over and over and over again. And I

felt, in a sense, I mean, I felt like if there was some sort of pressure

being applied towards me, when it came to that same picture, and

there came a point where it was asked so many times where I said,

you know what, if that’s the person, then that’s the person. You

know. I pretty much gave into saying it ʹ s obvious that you want me

to point this person out, so I pointed the person out.

App’x 2522. This testimony is a straightforward account that Officer Melino

heavy

‐ handedly encouraged Canela to select Fernandez. Canela also testified

that the detectives directly told him that they “ha[d] the guy,” and it was

Fernandez; and they “actually helped [him] believe that [Fernandez] was the

guy.” App’x 2589. Canela’s account is much too specific to support an adverse

credibility finding based on vagueness. Certainly, the state court did not

mention anything it found missing.

Finally, the state court discredited Canela’s testimony that he lied at

Fernandez’s trial because he was “afraid” and “scared,” finding that Canela

failed to “describe anything the officers said or did to instill such fear in him.”

App’x 47. But Canela testified that he was afraid because he had never been a

witness in court before: “I was afraid. I didn’t know what to do anymore. It was36 my first time in court. I had never seen anything. I had never been in court

before.” App’x 2589. The state court offered no a reason to discount this

explanation. Canela’s statement that he was frightened is corroborated by

testimony he gave at Fernandez’s trial, in which Canela explained that he only

spoke with investigators about the murder “[b]ecause they said that they was

[sic] going to protect me. Nothing would happen to me.” App’x 507.

The state court’s decision contains sound reasons to credit Canela’s

recantation, and no plausible reason to discredit it. Accordingly, the state court’s

rejection of Canela’s recantation was an “unreasonable determination of the facts

in light of the evidence presented,” 28 U.S.C. § 2254(d); therefore, the state court

unreasonably denied Fernandez’s second motion for a new trial.

Based on Canela’s testimony at the state court hearing, Fernandez has

satisfied the first element of his claim for a new trial based on prosecutorial

misconduct: Canela’s perjured testimony at the trial. We still must determine

whether Fernandez has made out the other elements of his claim, namely that:

“(ii) the alleged perjury was material; (iii) the government knew or should have

known of the perjury at [the] time of trial; and (iv) the perjured testimony

remained undisclosed during trial.” Cromitie, 727 F.3d at 221. As the state court37 concluded, the other elements are satisfied: “[I]f [Canela’s] hearing testimony [is]

fully credited, then the defendant would be entitled to a new trial.” App’x 44.

The State does not dispute that knowledge of the perjury is imputed from

Officer Melino to the prosecution team, or that the perjured testimony remained

undisclosed at trial.

As to materiality, Fernandez is entitled to a new trial “if there is any

reasonable likelihood that the false testimony could have affected the judgment

of the jury.” Cromitie, 727 F.3d at 221

‐ 22 (quoting Agurs, 427 U.S. at 103).

“Indeed, if it is established that the government knowingly permitted the

introduction of false testimony reversal is ‘virtually automatic.’” United States v.

Wallach, 935 F.2d 445, 456 (2d Cir. 1991) (quoting United States v. Stofsky, 527

F.2d 237, 243 (2d Cir. 1975)).

There was more than a “reasonable likelihood” that Canela’s eyewitness

testimony influenced the jury. Canela unequivocally identified Fernandez as the

shooter at trial, and “eyewitness testimony is among the most influential, even as

it is among the least reliable, forms of proof.” Kampshoff v. Smith, 698 F.2d 581,

587 (2d Cir. 1983). “Whenever such proof is admitted, there is a genuine

likelihood that the jury will base its decision on it.” Id.38 IV. CONCLUSION

Accordingly, we REVERSE and REMAND to the district court, with

instruction to comply with our February 5, 2019 Order, directing the district

court to issue a writ of habeas corpus to Fernandez by the sixtieth calendar day

after February 5, 2019 unless the state has, by that time, taken concrete and

substantial steps to retry Fernandez.