14‐193‐pr  

Lewis v. Connecticut Commissioner of Correction

1 

2 In the 

3 United States Court of Appeals 

4 For the Second Circuit 

5 ________

6 

7 AUGUST TERM, 2014

8 

9 ARGUED: OCTOBER 22, 2014

10 DECIDED: MAY 14, 2015

11 

12 No. 14‐193‐pr

13 

14 SCOTT LEWIS,

15 Petitioner‐Appellee,

16 

17 v.

18 

19 CONNECTICUT COMMISSIONER OF CORRECTION,

20 Respondent‐Appellant.

21 ________

22 

23 Appeal from the United States District Court

24 for the District of Connecticut.

25 No. 3 Civ. 196 – Charles S. Haight, Jr., Judge.

26 ________

27 

28 Before: WINTER, WALKER, and CABRANES, Circuit Judges.

29 ________

30 

31 In 1990, a jury convicted Petitioner Scott Lewis of murdering

32 Ricardo Turner and Lamont Fields. The government’s case against
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1 Lewis depended almost entirely on the testimony of its key

2 witness―Ovil Ruiz. At the time of Lewis’s trial, however, the State

3 failed to disclose to the defense that Ruiz had repeatedly denied

4 having any knowledge of the murders and only implicated Lewis

5 after a police detective promised to let Ruiz go if he gave a statement

6 in which he admitted to being the getaway driver and incriminated

7 Lewis and another individual, Stefon Morant.    Lewis now seeks

8 habeas relief on the grounds that the State of Connecticut denied his

9 constitutional right to a fair trial when it withheld exculpatory

10 evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).  The

11 United States District Court for the District of Connecticut (Charles

12 S. Haight, Jr., Judge) granted Lewis’s habeas petition on the basis of

13 the Brady violation. We agree with the district court and AFFIRM the

14 grant of habeas corpus.

15 ________

16 

17 BRETT DIGNAM (Elora Mukherjee, on the brief),

18 Morningside Heights Legal Services, Inc., New

19 York, N.Y., for Petitioner‐Appellee.

20 MICHAEL PROTO, Office of the Chief State’s

21 Attorney, Rocky Hill, C.T., for Respondent‐

22 Appellant.
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1 ________

2 

3 JOHN M. WALKER, JR., Circuit Judge:

4 In 1990, a jury convicted Petitioner Scott Lewis of murdering

5 Ricardo Turner and Lamont Fields. The government’s case against

6 Lewis depended almost entirely on the testimony of its key

7 witness―Ovil Ruiz. At the time of Lewis’s trial, however, the State

8 failed to disclose to the defense that Ruiz had repeatedly denied

9 having any knowledge of the murders and only implicated Lewis

10 after a police detective promised to let Ruiz go if he gave a statement

11 in which he admitted to being the getaway driver and incriminated

12 Lewis and another individual, Stefon Morant.    Lewis now seeks

13 habeas relief on the grounds that the State of Connecticut denied his

14 constitutional right to a fair trial when it withheld exculpatory

15 evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).  The

16 United States District Court for the District of Connecticut (Charles

17 S. Haight, Jr., Judge) granted Lewis’s habeas petition on the basis of

18 the Brady violation. We agree with the district court and AFFIRM the

19 grant of habeas corpus.
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1 BACKGROUND

2 On October 11, 1990, Ricardo Turner and Lamont Fields were

3 shot and killed in their apartment at 634 Howard Avenue in New

4 Haven, Connecticut. The State charged Scott Lewis and Stefon

5 Morant with the murders and tried them separately in Connecticut

6 Superior Court. Morant was tried first and convicted of both

7 murders.

8 I. Lewis’s Trial

9 At trial, the State did not introduce any eyewitness testimony

10 or forensic evidence against Lewis. The government’s key witness,

11 Ovil Ruiz, was the only witness who directly implicated Lewis in the

12 murders. Ruiz testified at trial, in substance, as follows.    On the

13 night of the murders, Ruiz drove Lewis and Morant to 634 Howard

14 Avenue and waited in the car while they went inside. While he was

15 waiting, he heard gunshots.  Lewis and Morant then returned to the

16 car with gym bags containing drugs and cash. Ruiz later overheard a

17 conversation in which Lewis admitted to shooting Turner and
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1 Fields. And two to three weeks after the murder, Ruiz saw Lewis

2 throw a gun into the river near the Chapel Street Bridge.  

3 On May 10, 1995, the jury convicted Lewis on two counts of

4 murder and two counts of felony murder, one as to each victim.  The

5 Superior Court sentenced Lewis principally to 120 years’

6 imprisonment. On direct appeal, the Supreme Court of Connecticut

7 affirmed Lewis’s convictions for the murders but vacated his felony

8 murder convictions on double jeopardy grounds. See State v. Lewis,

9 245 Conn. 779 (1998).

10 II. Subsequent Testimony

11 On October 25 and 26, 1999, Michael J. Sweeney, a 37‐year

12 veteran of the New Haven Police Department (“NHPD”)—and one

13 of two police detectives who questioned Ruiz on the night he first

14 implicated Lewis―provided critical information concerning the

15 circumstances in which Ruiz inculpated Lewis at the police station

16 on January 13‐14, 1991. At the hearing on Morant’s motion for a new
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1 trial before the Honorable Judge Jon C. Blue of the Connecticut

Superior Court,1 2 Sweeney testified as follows.  

3 Detective Vincent Raucci arrested Ruiz in connection with

4 another murder on January 13, 1991 and brought him to the New

5 Haven police station. Sweeney, Raucci’s supervising officer, first

6 questioned Ruiz about the Fields‐Turner murders. Ruiz said he did

7 not know anything about them. Then, Sweeney and Raucci jointly

8 interviewed Ruiz, who repeated that he had no information about

9 these murders and was not at the murder scene.   

10 Raucci then began telling Ruiz the facts of the Fields‐Turner

11 case. Raucci described where the murders occurred, the apartment

12 building, and a scenario in which the murderers escaped with guns

13 in a gym bag. At that point, Sweeney asked Raucci to step outside

14 and told him that his interrogation approach was inappropriate.

15 When the detectives returned to the interrogation, Raucci told Ruiz

 

1 In this separate proceeding, Judge Blue denied Morant’s motion for a new

trial based on his conclusion that there was extensive independent evidence

implicating Morant in the murders.    See Morant v. State, No. 398736, 2000 WL

804695 (Conn. Super. Ct. June 5, 2000), affʹd, 68 Conn. App. 137 (2002).    This

decision regarding Morant is not before us.  Relevant here, however, Judge Blue

determined at that hearing that Sweeney was a credible witness, and that the

testimony recounted below should be credited.
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1 that “he would let him go,” and that he wanted him to say “that he

2 was driving the car that night.” S.A. 443. Raucci also warned Ruiz

3 “that it was in his best interest to tell what happened [and] give a

4 detailed statement as to his participation and also the other two.”

5 S.A. 443. At that point, Ruiz started changing his statement.  

6 Sweeney again took Raucci outside and told him to “knock it

7 off.”    S.A. 444. Specifically, Sweeney told Raucci “don’t tell [Ruiz]

8 parts of the case and then five minutes later let him parrot what

9 you’re saying and take it as fact.” S.A. 444. When Judge Blue asked

10 Sweeney to clarify what information Raucci gave Ruiz, Sweeney

11 said, among other things, that Raucci told Ruiz “that he was present

12 with the two individuals, Scott Lewis and Stefon Morant.” S.A. 460.

13 On cross‐examination, Sweeney acknowledged that police officers

14 frequently divulge certain facts in order to extract additional

15 information from a potential suspect, but explained that Raucci was

16 “detailing the whole case” to Ruiz, S.A. 414, rather than telling him

17 “a little to get a lot,” S.A. 337.
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1 Sweeney was then pulled away on another matter, so Raucci

2 interviewed Ruiz alone. When Sweeney returned, Raucci told him

3 that Ruiz wanted to give a detailed statement about his involvement

4 in the murders. Concerned by the significant change in Ruiz’s story,

5 Sweeney spoke to Ruiz alone and asked him if he was “truthful in

6 stating that these two persons were there and [he] drove the car.”

7 S.A. 446. Ruiz said “no . . . . [h]e was not telling the truth,”    he

8 “knew nothing,” and “the information he did give . . . . was all

9 information gathered from Detective Raucci.” Id. Significantly, Ruiz

10 told Sweeney that he changed his story “because Detective Raucci

11 said he was gonna let him go.” Id.

12 Sweeney, again, confronted Raucci. At Raucci’s request,

13 Sweeney gave Raucci one final opportunity to interview Ruiz alone.

14 After that interview, Raucci told Sweeney that Ruiz wanted to say

15 that he “overheard these two people talking about the case, that he

16 wasn’t present.” S.A. 446. At that late point in the evening, Sweeney

17 thought that “might be true,” so he told Raucci to take the statement.  
9 No. 14‐193‐pr

1 S.A. 446‐47. Shortly thereafter, Sweeney’s shift ended, and he did

2 not see Ruiz again.  

3 In 1998, Sweeney retired from the NHPD and volunteered to

4 serve as a U.N. station commander, supervising police officers in

5 post‐war Bosnia.  When he returned to the United States, he read in

6 a local newspaper that Raucci had resigned from the NHPD because

7 of misconduct. Specifically, Raucci was linked to the New Haven

8 drug trade; charged with larceny following an internal NHPD

9 investigation; arrested for a domestic‐violence incident; and, after

10 fleeing Connecticut as a result of the charges against him, was

11 ultimately arrested by the Federal Bureau of Investigation (“FBI”)

12 after a four‐hour standoff in New Mexico. Sweeney later testified

13 during an evidentiary hearing on Lewis’s federal habeas petition

14 that he came forward because he felt Ruiz was “absolutely

15 untruthful,” A. 39, and that the story implicating Lewis and Morant

was “fabricated,” S.A. 37.2 16   At Lewis’s trial in 1990, the prosecution

 

2 We also note that Sweeney’s testimony corroborates evidence obtained by

the FBI during an investigation of Raucci’s conduct. That evidence, which we do

not take into consideration in deciding Lewis’s habeas petition, includes a  letter

Ruiz wrote to the FBI on August 24, 1999 in which he wrote that he “set up”
10 No. 14‐193‐pr

1 failed to disclose to the defense any of the circumstances of Ruiz’s

2 police interrogation to which Sweeney testified.

3 III. The State Habeas Proceedings

4 On January 9, 2001, Lewis filed a pro se habeas petition in

5 Connecticut Superior Court.    He raised three claims: (1) newly

6 discovered evidence that Ruiz perjured himself; (2) a Brady violation

7 based on the State’s failure to disclose evidence of Ruiz’s prior

8 inconsistent statements and Raucci’s coaching of Ruiz’s testimony;

9 and (3) newly discovered evidence of alibi testimony. In support of

10 his petition, Lewis included transcripts of Sweeney’s testimony at

11 the Morant hearing.  

12 The Connecticut Superior Court (Howard Zoarski, Judge)

13 (hereinafter, the “state habeas court”) denied Lewis’s petition. With

14 respect to Lewis’s Brady claim, the state habeas court concluded that

15 “not only was all exculpatory evidence furnished to the defense, but

16 also the alleged evidence was available by due diligence to the

17 defense.” Lewis v. Warden, No. CV‐99‐0424021‐S, 2001 WL 1203354,

 

Lewis for a murder he did not commit at the instigation of a “corrupted cop.”  

S.A. 74.
11 No. 14‐193‐pr

1 at *3 (Conn. Super. Ct. Sept. 19, 2001). The state habeas court

2 determined that Raucci only provided Ruiz with “insignificant

3 facts”―such as the location of the apartment on Howard Avenue,

4 the color of the buildings, and the make of Lewis’s car―and that

5 “the information provided by Detective Raucci . . . did not disclose

6 the names of the petitioner or Morant.” Id. at *2. Notably, the state

7 habeas decision omitted any reference to Sweeney’s testimony that

8 Ruiz initially denied having any knowledge of the murders, that he

9 was parroting what Raucci told him, and, critically, that after he

10 changed his story to inculpate Lewis, Ruiz told Sweeney that he did

11 so because “Raucci said he was gonna let him go.” S.A. 446.

12 Pursuant to Section 52‐470(g) of the Connecticut General

13 Statutes, Lewis, acting pro se, petitioned a justice on the Connecticut

14 Supreme Court for certification to appeal to the Connecticut

Appellate Court. 15 3 On October 22, 2001, the certification was denied

 

3 At the time of Lewis’s petition, Conn. Gen. Stat. Ann. § 52‐470(b) (1983)

provided that a petitioner seeking to bring an appeal before the Connecticut

Appellate Court could seek certification to appeal from the judge who decided

the case, a judge of the Connecticut Appellate Court, or a justice of the

Connecticut Supreme Court.  The Connecticut Legislature revised this statute in
12 No. 14‐193‐pr

1 without opinion by a one‐justice order. Lewis then filed an

2 uncertified appeal with the Appellate Court. In support of his

3 appeal, Lewis provided the Appellate Court with transcripts from

4 his criminal trial, the probable cause hearing, and Sweeney’s

5 testimony at the Morant hearing; the state habeas court decision; and

6 excerpts from the FBI investigation discussing Ruiz’s relationship

7 with Raucci. On November 19, 2002, a three‐judge panel of the

8 Appellate Court issued a per curiam opinion, dismissing Lewis’s

9 appeal on the grounds that he failed to include the transcript from

10 his state habeas trial before Judge Zoarski and thus failed to provide

11 an adequate record for review. Lewis v. Commʹr of Corr., 73 Conn.

12 App. 597, 599 (2002). Thereafter, Lewis sought review by the

13 Connecticut Supreme Court through a petition for certification,

14 which was denied on January 14, 2003 without discussion. Lewis v.

15 Commʹr of Corr., 262 Conn. 938 (2003).

16 

 

2002, eliminating the option to appeal to a Connecticut Supreme Court justice.  

Conn. Gen. Stat. Ann. § 52‐470(g) (2002).
13 No. 14‐193‐pr

1 IV. The District Court Proceedings

2 Lewis filed a petition for federal habeas relief in the District of

3 Connecticut, arguing, in relevant part, that the State denied his right

4 to a fair trial and violated his right to due process when it withheld

5 Brady material during his trial. Judge Haight first considered and

6 rejected the State’s claim that Lewis had procedurally defaulted on

his Brady claim. 7 4 Lewis v. Commʹr of Corr., No. 03 Civ. 196, 2012 WL

8 601773, at *6 (D. Conn. Feb. 23, 2012). Then, on December 16, 2013,

9 following extensive motion practice, a ten‐day evidentiary hearing

10 at which Sweeney testified in person, and oral argument, Judge

11 Haight granted Lewis’s petition for habeas relief in a thorough 68‐

12 page opinion. Lewis v. Commʹr of Corr., 975 F. Supp. 2d 169 (D. Conn.

13 2013). The district court determined that Lewis’s habeas claim

14 survived scrutiny under the Antiterrorism and Effective Death

15 Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), which requires

16 deference to state procedures, because the state habeas decision was

 

4 The district court also determined that Lewis did not fail to exhaust his state

remedies, a determination  not challenged in this appeal.  
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1 based on an “erroneous and unreasonable” determination of the

2 facts, 975 F. Supp. 2d at 180, and “was contrary to [clearly]

3 established Federal law, [as determined by the Supreme Court of the

4 United States],” id. at 181. The district court, after carefully

5 articulating the arguments on both sides and meticulously

6 reviewing all of the evidence, concluded that Lewis was entitled to

7 federal habeas relief. Id. at 198.   

8 The district court therefore directed the Commissioner of

9 Correction of the State of Connecticut to release Lewis from its

10 custody “within sixty (60) days of the date of this Ruling and Order,

11 unless the State of Connecticut within those 60 days declares its

12 written intention . . . to retry [Lewis] on the charges against him

13 . . . .” Id. at 208‐209.  On February 14, 2014, the parties submitted a

14 joint motion to release Lewis, which was granted by the district

15 court.  Accordingly, on February 26, 2014, the district court signed a

16 writ ordering Lewis’s release.  The State timely appealed.
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1 DISCUSSION

2 The State argues that the district court erred in granting

3 habeas relief because: (1) Lewis procedurally defaulted on his Brady

4 claim at the state level, and (2) Lewis did not satisfy either of

5 AEDPA’s substantive conditions under § 2254(d) because the state

6 habeas court’s decision did not contravene clearly established

7 federal law and was not based on an unreasonable factual

8 determination. We disagree.  

9 Lewis, who was a pro se litigant in state court, sufficiently

10 complied with all state‐law procedural requirements capable of

11 barring federal review.  Moreover, Lewis satisfied both of § 2254(d)’s

substantive predicates, even though he only needed to satisfy one.5 12 

13 We conclude both (1) that the state habeas court contravened clearly

14 established federal law as determined by the Supreme Court in

 

5 A federal court may only grant a petitioner relief with respect to any claim

that was adjudicated on the merits in State court proceedings if the State

adjudication:  

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law as

determined by the Supreme Court of the United States; or (2) resulted in

a decision that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.  

28 U.S.C. § 2254(d)(1)‐(2).
16 No. 14‐193‐pr

1 Brady and its progeny when it held the defendant was required to

2 exercise “due diligence” to obtain exculpatory evidence, Lewis, 2001

3 WL 1203354, at *3, and (2) that the state habeas court based its

4 decision on unreasonable findings of fact when it ignored key

5 aspects of the record.  Accordingly, the district court had authority

6 to consider the merits of Lewis’s Brady claim and properly granted

7 habeas relief.   

8 I. Procedural Bars

9 We review do novo the question of whether a procedural

10 ground is adequate to support a state court’s judgment. See Monroe

11 v. Kuhlman, 433 F.3d 236, 240 (2d Cir. 2006).

12 “[F]ederal courts will not review questions of federal law

13 presented in a habeas petition when the state court’s decision rests

14 upon a state‐law ground that ‘is independent of the federal question

15 and adequate to support the judgment.’” Cone v. Bell, 556 U.S. 449,

16 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). A

17 state court’s adjudication of a petitioner’s federal claim only bars

18 federal habeas review when “the last state court rendering a
17 No. 14‐193‐pr

1 judgment in the case clearly and expressly states that its judgment

2 rests on a state procedural bar.” Messiah v. Duncan, 435 F.3d 186, 195

3 (2d Cir. 2006) (internal quotation marks omitted). Additionally, it

4 must be “clear from the face of the opinion” that the state court’s

5 decision rests on a state procedural bar. Coleman, 501 U.S. at 735

6 (internal quotation marks omitted); see also Fama v. Commʹr of Corr.

7 Servs., 235 F.3d 804, 809 (2d Cir. 2000).  However, even if the state

8 court’s decision clearly rests on a procedural bar, federal review will

9 only be precluded if that procedural bar constitutes “a firmly

10 established and regularly followed state practice.” Ford v. Georgia,

11 498 U.S. 411, 423–24 (1991) (internal quotation marks omitted).

12 The State argues that Lewis’s Brady claim was procedurally

13 barred because (a) he failed to provide the Appellate Court with an

14 adequate record for review, and (b) he failed to brief the issue of

15 whether it was an abuse of discretion to deny him certification to

16 appeal.  Neither argument has merit.

17 

18 
18 No. 14‐193‐pr

1 A. The Adequate‐Record Rule

2 The State first argues that Lewis procedurally defaulted on his

3 Brady claim because he did not provide the Appellate Court with a

4 transcript of the state habeas proceedings and thus failed to provide

5 an adequate record for review under Connecticut Rule of Appellate

6 Procedure 61–10. Conn. Practice Book 1998 § 61‐10. This argument

7 fails for several reasons.  

8 First, it is not clear that the Appellate Court recognized the

9 Brady claim that Lewis indisputably raised, let alone dismissed it on

10 procedural grounds. The Appellate Court’s decision described the

11 issues before it as whether the state habeas court erred:

12 (1) in concluding that the testimony of Michael Sweeney, a

13 police detective, did not constitute newly discovered evidence

14 and (2) in failing to draw an adverse inference against the

15 respondent commissioner of correction when Ovil Ruiz, a

16 witness at the habeas trial, invoked his fifth amendment

17 privilege against compelled self‐incrimination.

18 Lewis, 2012 WL 601773, at *5 (internal quotation marks omitted).  
19 No. 14‐193‐pr

1 The Appellate Court appears to have missed Lewis’s Brady

claim entirely.6 2   Yet, in a clear and well‐researched pro se brief to the

3 Appellate Court, Lewis argued that the State failed to disclose

4 evidence that was material and exculpatory, citing Brady, United

5 States v. Bagley, 473 U.S. 667 (1985), and United States v. Agurs, 427

6 U.S. 97 (1976), among other relevant cases. With no reference to the

7 Brady claim in the Appellate Court’s decision, it is certainly not

8 “clear from the face of the opinion” that the state habeas court

9 rejected Lewis’s Brady claim on state‐procedural grounds. Coleman,

10 501 U.S. at 733; see also Messiah, 435 F.3d at 196.

11 Second, Lewis only failed to comply with the adequate‐record

12 requirement of Rule 61–10 if the state habeas transcript was

13 necessary for appellate review.   Chapter 63 of Connecticut’s Rules

14 of Appellate Procedure states that an appellant must file the

15 portions of a trial‐court proceeding transcript that he “deem[s]

 

6 The Appellate Court’s failure to recognize Lewis’s Brady claim is likely due,

at least in part, to the State’s misrepresentation of the issues on appeal. The

State’s brief before the Appellate Court characterized Lewis’s petition as

presenting: (1) “claims of newly discovered evidence” and (2) “claims that the

habeas court abused its discretion by not drawing an adverse inference against

Ovil Ruiz.” S.A. 382. Nowhere in its brief did the State address Lewis’s Brady

claim.     
20 No. 14‐193‐pr

1 necessary” for review, but an appellant may file a statement that no

2 transcript is necessary. See Conn. Practice Book 1998 § 63–8; § 63–

3 4(a)(3). Lewis indicated in a statement to the Appellate Court that

4 the state habeas transcript was not necessary for review. See Lewis,

5 73 Conn. App. at 598.  He was correct.

6 Lewis’s petition first argued that the state habeas court erred

7 as a matter of law by requiring him to exercise “due diligence” to

8 obtain Brady material. In the particular circumstances presented

9 here, the Appellate Court would have been able to decide the purely

10 legal question of whether the state habeas court improperly

11 incorporated a “due diligence” requirement into its opinion without

12 reviewing the transcript from the state habeas proceedings.   

13 Moreover, it is not clear what additional information the

14 Appellate Court would have gleaned from the state habeas

15 transcript that it did not already have. The State did not call

16 witnesses or offer exhibits during the state habeas trial. In support of

17 his appeal, Lewis provided the Appellate Court with transcripts

18 from his criminal trial and the probable cause hearing; Sweeney’s
21 No. 14‐193‐pr

1 testimony at the Morant hearing; the state habeas court decision; and

2 excerpts from the FBI investigation discussing Ruiz’s relationship

3 with Raucci. In these circumstances, the materials provided by

4 Lewis were adequate to enable the Appellate Court to review

5 Lewis’s claims of error, and the state has not explained how the

6 transcript could have improved the record.

7 B. Certification

8 Section 52–470(g) of the Connecticut General Statutes requires

9 a petitioner seeking to appeal a habeas court’s decision to file a

10 petition for certification to appeal. A petitioner may file an

11 uncertified appeal, however, if the denial of certification constituted

12 an abuse of discretion. Simms v. Warden, 230 Conn. 608, 615 (1994).

13 Under Connecticut law, failure to certify an appeal is an abuse of

14 discretion if the appeal is “not frivolous.” Taylor v. Commʹr of

15 Correction, 284 Conn. 433, 448 (2007) (internal quotation marks

16 omitted).

17 The State argues that Lewis procedurally defaulted on his

18 Brady claim following the denial of certification to appeal by a justice
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1 of the Connecticut Supreme Court because he failed to brief the

2 question of whether that denial constituted an abuse of discretion in

3 his petition to the Appellate Court. But the State has not shown that

4 “a firmly established and regularly followed state practice” required

5 Lewis to brief the certification issue. See Ford, 498 U.S. at 423–24. In

6 fact, the State does not identify any Connecticut authority for a

7 certification‐briefing requirement; rather, it argues that Lewis failed

8 to follow the procedure for appeals. Moreover, Connecticut courts do

9 not regularly enforce this procedure. See, e.g., Hankerson v. Comm. of

10 Corr., 150 Conn. App. 362, 368 (2014) (ordering supplemental

11 briefing when the petitioner failed to brief the certification question).

12 Even assuming such a briefing requirement existed, Lewis

13 effectively complied with it by arguing to the Appellate Court that

14 his appeal was not frivolous.  Connecticut courts apply the criteria

15 set forth in Lozada v. Deeds, 498 U.S. 430, 431–32 (1991) (per curiam),

16 when determining whether an appeal is frivolous. Under Lozada, a

17 petitioner must demonstrate one of the following: “that the issues

18 are debatable among jurists of reason; that a court could resolve the
23 No. 14‐193‐pr

1 issues in a different manner; or that the questions are adequate to

2 deserve encouragement to proceed further.” 498 U.S. at 432

3 (emphasis in original) (internal quotation marks and alternations

4 omitted). Thus, in deciding the abuse of discretion question, a court

5 “necessarily must consider the merits of the petitioner’s underlying

6 claims.” Taylor, 284 Conn. at 449.  

7 Lewis fully argued the merits of his Brady claim. Although he

8 did not cite Lozada by name, Lewis contended, inter alia, that the

9 state habeas court “applied the wrong standard of review

10 concerning the evidence of Sweeney’s testimony,” and that its

11 factual findings were “unsupported by the evidence.” S.A. 296. He

12 also provided citations to the portions of Sweeney’s testimony

13 before Judge Blue, see supra note 1, which undermined Ruiz’s

14 credibility. At the very least, Lewis demonstrated that his case

15 presented issues that were debatable among jurists of reason. See

16 Lozada, 498 U.S. at 432. Given that courts interpret pro se filings

17 liberally, see, e.g., Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011);

18 Ajadi v. Commʹr of Corr., 280 Conn. 514, 549 (2006), we easily
24 No. 14‐193‐pr

1 interpret Lewis’s brief to argue that his appeal was not frivolous and

2 thus that it was an abuse of discretion to deny certification.

3 Accordingly, we find no procedural bar to considering the

4 merits of Lewis’s habeas claim and thus turn to AEDPA’s

5 substantive predicates.

6 II. § 2254(d) Substantive Predicates to Federal Habeas Review

7 We review a district court’s decision to grant a petition for a

8 writ of habeas corpus de novo and its factual findings for clear error.

9 Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir. 2007).  

10 AEDPA provides for federal habeas relief when a “person in

11 custody pursuant to the judgment of a State court . . . is in custody in

12 violation of the Constitution or laws or treaties of the United States,”  

13 28 U.S.C. § 2254(a), subject to certain conditions.  AEDPA states that

14 a federal habeas court may only grant a petitioner relief with

15 “respect to any claim that was adjudicated on the merits in State

16 court proceedings” if the State adjudication:

17 (1) resulted in a decision that was contrary to, or involved an

18 unreasonable application of, clearly established Federal law,

19 as determined by the Supreme Court of the United States; or
25 No. 14‐193‐pr

1 (2) resulted in a decision that was based on an unreasonable

2 determination of the facts in light of the evidence presented in

3 the State court proceeding.

4 28 U.S.C. § 2254(d)(1)‐(2); see also, e.g., Brown v. Alexander, 543 F.3d

5 94, 100 (2d Cir. 2008).   A federal habeas court must assume that all

6 factual determinations made by the state court were correct unless

7 the petitioner rebuts those findings by clear and convincing

8 evidence. 28 U.S.C. § 2254(e)(1); see also Bierenbaum v. Graham, 607

9 F.3d 36, 48 (2d Cir. 2010). Given that the Appellate Court denied,

10 erroneously in our view, Lewis’s petition on the basis that he failed

11 to file the transcript of his state habeas proceeding, the only state

12 court that adjudicated Lewis’s habeas petition “on the merits” was

13 the state habeas court.   

14 The phrase “clearly established federal law, as determined by

15 the Supreme Court of the United States” refers to “the holdings, as

16 opposed to the dicta, of [the Supreme] Court’s decisions as of the

17 time of the relevant state‐court decision.” Williams v. Taylor, 529 U.S.

18 362, 412 (2000). A state court decision is contrary to such clearly

19 established federal law if it “applies a rule that contradicts the

20 governing law set forth in the Supreme Court’s cases” or “if the state
26 No. 14‐193‐pr

1 court confronts a set of facts that are materially indistinguishable

2 from a decision of the Supreme Court and nevertheless arrives at a

3 result different from its precedent.” Boyette v. Lefevre, 246 F.3d 76, 90

4 (2d Cir. 2001) (quoting Williams, 529 U.S. at 406) (internal alterations

5 omitted). A state court decision is based on a clearly erroneous

6 factual determination if the state court “failed to weigh all of the

7 relevant evidence before making its factual findings.” Doe v. Menefee,

8 391 F.3d 147, 164 (2d Cir. 2004); see also Milke v. Ryan, 711 F.3d 998,

9 1010 (9th Cir. 2013) (a state court decision is based on an

10 “unreasonable determination of the facts” if the state court fails “to

11 consider key aspects of the record”).

12 In sum, in order to satisfy § 2254(d)’s substantive predicates

13 and merit federal review of his Brady claim, Lewis need only

14 establish either that the state habeas court’s decision: (1) contravened

15 clearly established federal law, as determined by the Supreme

16 Court, or (2) was based on an unreasonable determination of the

17 facts.  Here, Lewis has shown both.

18 
27 No. 14‐193‐pr

1 A. Clearly Established Federal Law: Brady and its Progeny

2 Well‐established Supreme Court precedent holds that the

3 prosecution has a clear and unconditional duty to disclose all

4 material, exculpatory evidence.  See Brady, 373 U.S. at 87.  This duty

5 exists whether or not the defense requests exculpatory evidence. See,

6 e.g., Bagley, 473 U.S. at 681‐2; Giglio v. United States, 405 U.S. 150, 154‐

7 55 (1972) (applying Brady to impeachment evidence). The Supreme

8 Court has never required a defendant to exercise due diligence to

9 obtain Brady material. See, e.g., Agurs, 427 U.S. at 107. The state

10 habeas court’s imposition of such a due diligence requirement

11 plainly violated clearly established federal law under Brady and its

12 progeny.   

13 The State’s argument that the state habeas court’s “due

14 diligence language is reasonably interpreted as directed to the

15 petitioner’s ‘actual innocence’ assertion, rather than his Brady claim,”

16 Resp. Br. at 39, distorts the state habeas court’s decision.    The

17 relevant portion of the decision states:  

18 The claim of the petitioner that exculpatory information was

19 not provided to the defense prior to the trial in 1995, has not
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1 been proven. This court finds not only was all exculpatory

2 evidence furnished to the defense, but also the alleged evidence

3 was available by due diligence to the defense, and the petitioner

4 was obliged to raise his claims before the trial court or the

5 Appellate Court.  

6 Lewis, 2001 WL 1203354, at *3 (emphasis added).    The “due

7 diligence” language patently pertains to Lewis’s claim that

8 “exculpatory evidence was not provided to the defense,” in other

9 words, to his Brady claim.

10 The State also argues that the due diligence finding was an

11 “alternate basis” for the state habeas court’s denial of Lewis’s

12 petition, and therefore the legal error is immaterial. That argument,

13 however, only succeeds if the state habeas court had a valid basis for

14 determining that “all exculpatory information [was] turned over to

15 the defense,” and thus that there was no Brady violation. For the

16 reasons explained below, it did not.

17 B. Unreasonable Determination of the Facts

18 The state habeas court’s determination that “all exculpatory

19 evidence [was] furnished to the defense” was clear factual error. The

20 prosecution never disclosed to Lewis or to defense counsel either

21 prior to or during trial that Raucci had coached Ruiz on the
29 No. 14‐193‐pr

1 testimony he ultimately gave at trial, that Ruiz was parroting what

2 Raucci told him, or that he was doing so because Raucci said he

3 would let him go. Nothing in the record supports a finding to the

4 contrary.  The fact that the information to which Sweeney testified

5 had not been provided to the prosecution at the time of trial is of no

6 import. The State’s failure to disclose exculpatory evidence,

7 including impeachment evidence, in its possession constitutes a

8 Brady violation, irrespective of the good faith or bad faith of the

9 prosecution, Brady, 373 U.S. at 87, and regardless of whether the

10 information is known only by the police and not the prosecutor, see

11 Kyles v. Whitley, 514 U.S. 419, 437‐38 (1995); see also United States v.

12 Triumph Capital Grp., Inc., 544 F.3d 149, 161 (2d Cir. 2008). Moreover,

Judge Blue concluded that Sweeney was a credible witness,7 13 see

14 Morant v. State, No. 398736, 2000 WL 804695, at *9 (Conn. Super. Ct.

15 June 5, 2000) affʹd, 68 Conn. App. 137 (2002), and the state habeas

16 court never questioned Sweeney’s credibility.    Thus, Lewis has

17 rebutted the presumption in favor of the state habeas court’s

 

7 After the federal habeas hearing, Judge Haight reached the same conclusion.

See Lewis, 975 F. Supp. 2d at 194.
30 No. 14‐193‐pr

1 findings by “clear and convincing evidence.” See Bierenbaum, 607

2 F.3d at 48.

3 The State argues that as a “corollary” to its finding that all

4 exculpatory information had been provided to the defense, the state

5 habeas court determined that Sweeney’s testimony was not

6 exculpatory. Nothing in the state habeas court’s decision supports

7 the State’s argument, and we do not owe AEDPA deference to

8 speculation that the state habeas court reached that conclusion. See

9 Boyette, 246 F.3d at 91.

10 In any event, the state habeas court plainly based its decision

11 on an unreasonable determination of the facts. The state habeas

12 court found that Raucci only provided Ruiz with “insignificant”

13 details.  Lewis, 2001 WL 1203354, at *2. But Sweeney’s testimony is

14 replete with evidence showing that Raucci supplied Ruiz with, in

15 Sweeney’s words, “the whole case,” S.A. 317, and told Ruiz to say

16 that “he was present with the two individuals, Scott Lewis and

17 Stefon Morant,” S.A. 460.    The state habeas decision also notably

18 failed to reference the evidence that Ruiz not only denied having
31 No. 14‐193‐pr

1 any knowledge of the murders three different times, but that after

2 implicating Lewis in the murders, Ruiz told Sweeney the

3 inculpatory account was false and that he was lying to protect

4 himself.  In failing to note, much less consider, these key facts, the

5 state habeas court based its decision on an unreasonable

6 determination of the facts. See, e.g., Menefee, 391 F.3d at 164; Milke,

7 711 F.3d at 1010.  

8 Given that Lewis has satisfied AEDPA’s substantive

9 predicates, we finally turn to the merits of his Brady claim.

10 III. Section 2254(a): The Merits of Lewis’s Brady Claim  

11 There are three components of a Brady violation: “The

12 evidence at issue must be favorable to the accused, either because it

13 is exculpatory, or because it is impeaching; that evidence must have

14 been suppressed by the State, either willfully or inadvertently; and

15 prejudice must have ensued.” Boyette, 246 F.3d at 89 (quoting

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

17 We agree with Judge Haight’s thoughtful analysis of Lewis’s

18 Brady claim, summarized as follows.
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1 A. Exculpatory Evidence

2 Sweeney’s testimony and the facts he revealed were clearly

3 favorable to Lewis. “Evidence is favorable to the accused if it either

4 tends to show the accused is not guilty or impeaches a prosecution

5 witness.” Boyette, 246 F.3d at 90 (citing Bagley, 473 U.S. at 676).  

6 Ruiz―the State’s key witness at trial―repeatedly denied to the

7 police that he was at the murder site and that he knew anything

8 about the murders. His statement changed only after Raucci

9 provided critical details about the case, told Ruiz “that it was in his

10 best interest to tell what happened [and] give a detailed statement as

11 to his participation and also the other two,” S.A. 317, and promised

12 to “let [Ruiz] go” if he did so, S.A. 446. That evidence was “of a kind

13 that would suggest to any prosecutor that the defense would want

14 to know about it.” Leka v. Portuondo, 257 F.3d 89, 99 (2d Cir. 2001).   

15 If defense counsel had known this information at trial, he

16 could have cross‐examined Ruiz regarding his prior inconsistent

17 statements and the extent to which Raucci coached him and induced

18 him to testify falsely. See Giglio, 405 U.S. at 154‐55 (applying Brady to
33 No. 14‐193‐pr

1 material that can be used to impeach a prosecution witness).  As the

2 district court concluded, Sweeney’s testimony was clearly

3 exculpatory under Brady or impeachment material under Giglio, if

4 not both.   

5 B. Failure to disclose

6 For the reasons explained above, the State plainly failed to

7 disclose Brady evidence to the defense in Lewis’s case.

8 C. Prejudice

9 To establish prejudice, a plaintiff must show that the evidence

10 was material.  Leka, 257 F.3d at 104 (quoting Kyles, 514 U.S. at 434).  

11 “The touchstone of materiality is a reasonable probability of a

12 different result.” Id. (alteration omitted). As the Supreme Court has

13 explained:

14 The question is not whether the defendant would more likely

15 than not have received a different verdict with the evidence,

16 but whether in its absence he received a fair trial, understood

17 as a trial resulting in a verdict worthy of confidence.    A

18 ‘reasonable probability’ of a different result is accordingly

19 shown when the government’s evidentiary suppression

20 ‘undermines confidence in the outcome of the trial.’

21 Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).
34 No. 14‐193‐pr

1 At trial, no witness other than Ruiz directly implicated Lewis

in the murders,8 2 and the State did not introduce any forensic or eye‐

3 witness testimony against Lewis. As a result, Ruiz’s testimony was

4 critical to the State’s obtaining a conviction.  

5 Sweeney provided credible evidence that Ruiz simply

6 parroted information supplied by an unscrupulous police officer.

7 Sweeney’s testimony thoroughly undermines Ruiz’s credibility and

8 thus any reasonable confidence in the outcome of the trial. See Kyles,

9 514 U.S. at 434. Accordingly, the State’s failure to disclose the

10 evidence relating to Ruiz’s interrogation prejudiced Lewis and

11 deprived him of his Constitutional right to a fair trial.   

12 CONCLUSION

13 For the reasons stated above, we AFFIRM the District Court’s

14 order granting Lewis’s petition for habeas relief under 28 U.S.C.

15 § 2254.  

 

8 The only other witness who offered any testimony connecting Lewis to the

murders, Jose Roque, recanted prior to trial and insisted that Raucci had coached

him on what to say in his statement. S.A. 187‐188.  Significantly, at Lewis’s trial,

Roque also testified that Raucci told him that Raucci “wanted to put Scott Lewis

away.”  S.A. 193.