Argued: November 29, 2017
Appeal from the United States District Court for the Eastern
District of New York
appeal from a judgment of the United States District Court
for the Eastern District of New York (Dearie, J.)
granting habeas corpus relief from a state murder conviction,
see 28 U.S.C. § 2254, respondent challenges the
district court's determinations that (1) petitioner made
the gateway showing of actual innocence necessary for merits
review of his procedurally barred claim of ineffective
assistance of counsel, and (2) the state court's
rejection of that Sixth Amendment claim was an unreasonable
application of clearly established Supreme Court precedent.
For reasons stated herein, we reject the gateway
determination and, therefore, dismiss without addressing the
barred Sixth Amendment claim.
Reversed and Petition Dismissed.
Ranjana C. Piplani, Assistant District Attorney (John M.
Castellano, Assistant District Attorney, on the brief), Kew
Gardens, New York, for Richard A. Brown, District Attorney,
Queens County, for Respondent- Appellant.
A. Garber (Rebecca E. Freedman, on the brief), The
Exoneration Initiative, New York, New York, for
Before: Jacobs, Raggi, and Droney, Circuit Judges.
Raggi, Circuit Judge.
William Brown appeals from a judgment entered on July 13,
2016, in the United States District Court for the Eastern
District of New York (Raymond J. Dearie, Judge),
which, pursuant to 28 U.S.C. § 2254, grants petitioner
Tullie Hyman relief from a New York State judgment convicting
him of, among other crimes, the second-degree depraved
indifference murder of Maria Medina, the innocent victim of a
gunfight bullet gone astray. See Hyman v. Brown, 197
F.Supp.3d 413 (E.D.N.Y. 2016). The district court concluded
that Hyman's conviction had been obtained in violation of
the Sixth Amendment right to effective assistance of counsel
because, as the result of a conflict of interest grounded in
a fee dispute with a private investigator, counsel failed to
call the investigator as a witness at Hyman's trial,
where he could have offered evidence to impeach the
prosecution's lead identification witness. See
id. at 464-66.
Hyman earlier presented this constitutional claim in a
collateral state challenge to conviction, a New York court
rejected it on a state procedural ground, as well as on the
merits. See People v. Hyman, No. 1787/00 (Sup. Ct.
Queens Cty. Aug. 4, 2009) (reproduced in App'x 3285-95).
The independent procedural ruling erected a bar to federal
habeas review that Hyman concedes he cannot overcome by
showing good cause to excuse his procedural failure and
ensuing prejudice. See House v. Bell, 547 U.S. 518,
536 (2006) (collecting cases discussing "cause and
prejudice" exception to procedural bar). Nevertheless,
the law affords another narrow "gateway" to merits
review of defaulted claims for habeas petitioners who can
make credible and compelling showings of actual innocence.
Id. at 538. The district court found that Hyman
satisfied this demanding standard and, thus, reached the
merits of his Sixth Amendment claim. See Hyman v.
Brown, 197 F.Supp.3d at 463. Respondent here challenges
both this gateway finding and the district court's
identification of Sixth Amendment error.
de novo review of petitioner's actual innocence
claim, see Rivas v. Fischer, 687 F.3d 514, 543 (2d
Cir. 2012) (stating that actual innocence determination
presents "mixed question of law and fact" reviewed
de novo), we conclude that Hyman has not carried his
gateway burden. Accordingly, we vacate the challenged
judgment and order Hyman's habeas petition dismissed.
reviewing a gateway claim of actual innocence, a court
"must consider all [record] evidence, old and new,
incriminating and exculpatory, without regard to whether it
would necessarily be admitted under rules of admissibility
that would govern at trial." House v. Bell, 547
U.S. at 538 (internal quotation marks omitted). Our
background discussion is, therefore, necessarily lengthy.
evening of March 10, 2000, Maria Medina was performing
volunteer "tenant patrol" duty in the lobby of 1540
Hassock Street, the Queens apartment building where she
resided within the Redfern public housing
project. At approximately 7:00 p.m., a shootout
erupted in the street in front of that building ("March
10 shootout"). Within minutes, more than thirty bullets
were fired from at least four different weapons. One of these
bullets entered the lobby and killed Ms. Medina.
York State charged four persons with crimes relating to the
March 10 shootout: Jonathan Whitmore and Derek Harris, who
were thought to have been shooting from the fence and walkway
adjoining 1540 Hassock Street toward the street; and Osimba
Rabsatt and petitioner Tullie Hyman, who were thought to have
been shooting from the street toward the building. Only
Rabsatt and Hyman stood trial. Whitmore and Harris each
pleaded guilty to criminal possession of a weapon and were
sentenced to respective prison terms of seven years and two
Rabsatt-Hyman trial, the prosecution's theory was that,
on the night of March 10, these two men drove to 1540 Hassock
Street in a red Acura (Rabsatt) and a green Mazda (Hyman),
double-parked the cars across from 1540 Hassock Street-with
their passenger sides toward the middle of the street and
facing 1540-and proceeded to engage in a gunfight with
Whitmore and Harris. Rabsatt successfully challenged this
theory by offering alibi evidence placing him elsewhere at
the time of the gunfight. The jury acquitted him on all
counts. Not so Hyman, who did not dispute being at the
shootout in a green Mazda, but who maintained that he was an
unarmed victim of, rather than a participant in, the
gunfight. Finding otherwise, the jury returned a guilty
verdict against Hyman for second-degree depraved indifference
murder, see N.Y. Penal Law § 125.25(2);
criminal possession of a weapon in both the second and third
degrees, see id. §§ 265.03(1), (2); and
first-degree reckless endangerment, see id. §
120.25. Sentenced to a total prison term of 21
years to life for these crimes,  Hyman began serving his
sentence in June 2002, and remained incarcerated until
October 2016, when he was released pursuant to the July 2016
habeas judgment granting such relief unless the state took
substantial steps to retry Hyman within 90 days. Failing to
procure a stay of that order, the state released Hyman and
secure Hyman's conviction, the state offered evidence
generally falling into three categories: (1) Hyman's own
statements to the authorities, (2) eyewitness accounts of the
shootout, and (3) forensic evidence of the crime scene. Hyman
offered no evidence in defense.
March 11, 2000
March 11, 2000, upon learning that police were looking for
him in connection with the prior night's shootout, Hyman
voluntarily surrendered himself at the 113th precinct in
Queens, New York. Waiving his Miranda rights, Hyman
admitted being present during the shootout, but denied firing
a weapon. To the contrary, he reported being unarmed when he
went to 1540 Hassock Street to pick up his girlfriend,
Shakina Harris and, there, was ambushed by men shooting
at him. Hyman then gave police a sworn statement, which a
detective read to the jury as follows:
On Friday [i.e., March 10, 2000] when I
[i.e., Hyman] came home from court Shakina called me
and we were going to meet later 8:00 or 9:00. I would pick
her up at her building, the last one. I drove down the
street, the one way and pulled up behind a white civic. I put
[on] my hazard indicators, took the car out of gear, put it
in neutral and pulled the emergency brake up.
I looked over by the stores and the building. No one was
there. Dark station wagon was backing across from me. Then I
heard three or four shots. I looked in my door mirror and saw
two guys coming up behind me from the sidewalk firing. I got
low in the car. I tried to put the car in gear but it stalled
out. I got it back on. I saw two guys get out of the wagon
and they were firing in my angle. I got the car in reverse
and went around the civic. I made a left at the light and
went to my brother's house and told him what happened.
Grabbed some clothes. Called my girlfriend and left.
Tr. at 1388-89.
March 12, 2000
following day, Hyman again waived his Miranda rights
and told police that he had driven to 1540 Hassock Street on
March 10 in a red Acura. After Hyman stopped the car, two men
emerged from the car parked behind his and began shooting at
him. Other persons also fired at Hyman from the side of his
car before he fled the scene.
two hours later, and after Hyman spoke with his mother, he
revised his account, telling police that he had not driven to
Hassock Street in a red Acura, although he had driven such a
car in the recent past. Rather, he had driven to Hassock
Street in a green Mazda that he "just recently
bought." Id. at 870.
June 8, 2000
8, 2000, Hyman testified before a grand jury, maintaining
that he went to 1540 Hassock Street on March 10 to pick up
his girlfriend; that he was unarmed; that after he parked, he
"heard multiple shots coming from the back of [his]
car," id. at 1725; that four people fired at
him, "two from the left side and two from the right
side," id. at 1731; and that, in the course of
the shooting, the glass from the "passenger side
window" of his car "popped in [his] face,"
id. at 1734. Hyman also testified that he had driven
to Hassock Street by himself in a green Mazda MX6, not in a
red Acura. He acknowledged that, before acquiring the green
Mazda, he had driven a red Acura, but he said that car was
not at the shootout scene. Hyman also denied knowing Jonathan
Whitmore, threatening him, or recognizing him at the shootout
Hyman's own statements thus established his presence at
the March 10 shootout as the sole occupant of a green Mazda,
the state relied on four eyewitnesses-Margaret Contreras,
Lynn Burton, Deborah McCoy, and Shaquana Ellis-to establish
that Hyman was not an unarmed ambush victim but a shooting
participant in the gunfire exchange. Each woman testified to
seeing gunshots fired from, or by the occupant of, the green
Mazda, but only Ellis would specifically identify Hyman as
that shooter. Her recantation of that identification is the
basis for Hyman's actual innocence claim.
Contreras testified that she was on tenant patrol with Maria
Medina and Shereda Freeman on March 10, 2000, when she heard
several gunshots, one of which struck Medina. As she and
Freeman pulled the injured Medina toward the elevator,
Contreras saw, through the lobby door, a "dark
greenish" car parked in the street. Id. at
1038. The car's window was down, and Contreras there saw
"something silverish" that "looked like a gun
but it was like a flash." Id. Contreras
acknowledged that she did not mention the car or any gunfire
flash in her initial police interview, explaining that
"[n]o one ever asked" about "what happened
outside of the building." Id. at 1096. She
explained that she disclosed these facts when prosecutors
showed her a photograph of a car-Hyman's green Mazda-and
asked if she had ever seen it. She told them it looked like
the car outside her building on March 10 and then recounted
what she had seen. Contreras testified that things were
happening "really fast" on the night of the
shootout, id. at 1040, and that her focus was on
getting Medina to safety rather than on trying to "see
something" outside, id. at 1049. Nevertheless,
she did not waver in her testimony to seeing a flash of
gunfire coming from the window of the dark green car parked
outside her building on March 10.
Contreras had never told prosecutors that she could identify
anyone involved in the shootout, on cross-examination she
stated for the first time that, on the evening of March 10,
she had seen Whitmore, her neighbor, enter 1540 Hassock
Street carrying a gun. Later that night, Whitmore knocked on
Contreras's door and told her that he was "very
sorry about all this stuff that happened." Id.
at 1084. Contreras stated that she had not previously told
anyone about seeing Whitmore because she was worried for her
16-year-old son. Contreras was, in fact, moved out of her
building soon after the March 10 shootout.
Burton testified that she was in the bedroom of her third-
floor apartment at 1540 Hassock Street when she heard gunfire
erupt on the evening of March 10. From a window of her
apartment facing the street, Burton saw three cars
double-parked in front of the Friendly market across the
street: "a green jeep, a red color car with dark tinted
windows," and "behind that . . . a dark colored
car." Id. at 1594. Burton initially told police
the last car was a black or dark Altima, but, subsequently,
and at trial, she identified the "dark colored car"
as Hyman's green Mazda. Burton testified that she saw
"shots being fired" from "the red vehicle and
the dark colored vehicle that was behind the red
vehicle," but that she did not see who fired them.
Id. at 1594-95. What she saw "was some fire
coming out of a window." Id. at 1628. Burton
did not see anyone standing near or leaning out of the cars.
Nor did she see Whitmore, whom she knew well because his
mother lived at 1540 Hassock Street.
McCoy resided in a building across from 1540 Hassock Street.
She testified that after hearing gunshots on the evening of
March 10, she ran to the kitchen window of her seventh- floor
apartment, from where she saw a red Acura parked in front of
what she initially described as a "black" car, but
which she subsequently stated looked like Hyman's dark
green Mazda as depicted in police photographs. Id.
at 1783. McCoy testified that shots "first came from the
cars." Id. at 1813. She identified one shooter,
standing near the driver's side of the red car, as Osimba
Rabsatt, whom McCoy knew from high school. She saw another
man-whom she could not identify-get out of the dark car, fire
a gun, and then get back into the car. McCoy testified that
she also saw Whitmore and Harris shooting toward the cars as
they ran along a walkway toward the entry of 1540 Hassock
Street. McCoy knew Whitmore because she is his sister's
godmother and Whitmore's mother is godmother to
McCoy's son. McCoy telephoned 911 to report the shootout,
but did not then mention any participants by
Ellis testified that, at the time of the March 10 shootout,
she was standing in the third-floor hallway of 1540 Hassock
Street with two friends, Amanda Benitez and Shaquana Delain.
Through a hallway window, Ellis saw two cars pull up to the
building: a red Acura with tinted windows and a green Mazda.
After the cars "sat there" for a while, Ellis saw
"Tullie," i.e., Hyman, "hanging out
the . . . window, from the passenger side" of the green
car, "just fir[ing] off" gunshots. Id. at
1550-51. Ellis testified that she never actually saw a gun;
rather, she saw about five flashes of light, which looked
like "fire, like red come out of the gun," coming
from Hyman's direction. Id. at 1553. Ellis
stated that she did not see Whitmore, Harris, or anyone else
at the shootout scene.
admitted not reporting these events to the police when first
interviewed. At that time, she told authorities she had not
seen the shooting at all. Ellis, nevertheless, denied telling
friends or a private investigator that she had not seen the
shootout. She also denied that Whitmore had paid her to
incriminate Hyman, although she acknowledged that Whitmore
had corresponded with her from prison.
twenty minutes of the March 10 shootout, police had secured
the area in front of 1540 Hassock Street and started to
collect evidence. Much of the ballistic evidence gathered
indicated that bullets were fired not only at, but also from,
Hyman's green Mazda.
recovery of four discharged .45 caliber shell casings and
fourteen discharged 9mm shell casings from the middle of
Hassock Street indicated gunshots fired in that vicinity,
which was consistent with the location of cars double-parked
there on March 10, including Hyman's green Mazda.
Meanwhile, twelve discharged .380 caliber shell casings were
recovered from the fence and walkway bordering the front of
1540 Hassock Street. This corresponded to Deborah McCoy's
account of Whitmore and Harris firing gunshots at the parked
cars as the two men ran toward the building.
matched most of these shell casings to firearms recovered at
the scene. Specifically, six of the twelve .380 caliber shell
casings-i.e., casings for bullets fired from 1540
Hassock Street-were matched to a .380 caliber handgun found
on the rear lawn of the building. Whitmore would later admit
firing that gun during the March 10 shootout. The other six
.380 caliber casings went unmatched. Meanwhile, all recovered
.45 caliber and 9mm casings- i.e., casings for
bullets fired from the vicinity of the double-parked
cars-were matched to a .45 caliber handgun and an Intratech
9mm semiautomatic pistol found inside the spare tire wheel
well of Whitmore's Ford Taurus. At trial, the prosecution
took the position that the bullet that killed Ms. Medina came
from one of these two guns, which had been fired toward 1540
Hassock Street by Hyman and Rabsatt. To explain how guns fired
by Hyman and Rabsatt wound up in Whitmore's car, the
prosecution suggested that someone might have planted them
there to divert attention from Hyman and Rabsatt. Finally, no
ballistic evidence was matched to another 9mm handgun, found
broken into eight parts in a trash compactor inside 1540
further discovered that bullets had penetrated the door and
rear lobby of 1540 Hassock Street. The height of some bullet
holes-1'10" and 1'5.75" above ground
level-was consistent with shots being fired toward the
building from the window level of a car in the street. Bullet
marks were also found in a second-floor apartment of 1540
Hassock Street, the Friendly market across the street, and
three parked cars.
when police subsequently recovered Hyman's green Mazda,
they saw bullet damage concentrated on the vehicle's
front hood, front passenger door, and right rear bumper,
which was consistent with bullets fired from the direction of
1540 Hassock Street. There was no bullet damage to the
car's rear area or to its left side, although Hyman had
claimed that assailants had fired at him from the rear and
from both sides of the vehicle.
examination also determined that the Mazda's front
passenger window was open during the shootout-as some
eyewitnesses had reported-because the shattered window was
inside the door's window track and there was a bullet
hole in the door below the track.
Conviction and Direct Appeal
the jury found Hyman guilty, and the case proceeded to
sentencing, Hyman's counsel advised the court that a
defense private investigator, Kevin Hinkson, had procured a
statement from Amanda Benitez that impeached Shaquana
Ellis's trial testimony about witnessing the March 10
shootout. Construing the disclosure as a request for
adjournment of sentence in anticipation of a formal motion to
vacate the verdict as required by N.Y. Crim. Proc. Law §
330.30, the trial court declined to grant such relief in
light of two prior adjournments of sentence. Thus, on May 15,
2002, it sentenced Hyman to a total of 21-years-to-life
unsuccessfully appealed his conviction, first to the
Appellate Division, which unanimously affirmed, see
People v. Hyman, 15 A.D.3d 417, 788 N.Y.S.2d 863 (2d
Dep't 2005), and then to the New York Court of Appeals,
which denied review, see People v. Hyman, 4 N.Y.3d
Collateral Challenges to Conviction
First § 440 Motion
April 28, 2005, Hyman moved for collateral relief pursuant to
N.Y. Crim. Proc. Law § 440, seeking DNA testing of the
9mm handgun recovered from Whitmore's car. The state
court denied the motion, concluding that Hyman failed to show
that DNA testing would have resulted in a favorable verdict.
See People v. Hyman, 51 A.D.3d 689, 863 N.Y.S.2d 240
(2d Dep't 2008), denying leave to appeal, 10
N.Y.3d 960 (2008).
Second § 440 Motion
7, 2008, Hyman filed a second § 440 motion based on (1)
newly discovered evidence, specifically, Ellis's
recantation of her trial testimony; and (2) ineffective
assistance of counsel in failing to call investigator Hinkson
as a trial witness to impeach Ellis. Various affidavits were
offered to support the motion.
Hinkson stated that, in anticipation of Hyman's trial, he
had inspected the third-floor hallway at 1540 Hassock Street
and determined that it would have been "impossible"
for Ellis "to observe the events of the shooting"
from windows therein. Second 440, Exh. Q. Hinkson reported
providing defense counsel with photographs and a video
recording of the hallway supporting this
opinion. Also prior to trial, Hinkson provided
counsel with an unsigned statement from Amanda Benitez in
which she admitted that, contrary to what she had told police
and to what Ellis had testified at trial, Benitez and Ellis
had not been at a third-floor window of 1540 Hassock Street
at the time of the March 10 shootout.
stated that trial counsel never discussed any of this
evidence with him and never sought his testimony at
Hyman's trial. Hinkson further stated that he has never
been paid for his services on Hyman's case. While trial
counsel told him that Hyman's family would pay Hinkson
directly, Hyman's father told Hinkson that he had given
counsel $2, 500 to pay the investigator.
March 21, 2002-approximately a week after the jury found
Hyman guilty-Benitez swore to the statement she had earlier
given Hinkson, and Hyman offered that sworn statement in
support of his second § 440 motion. Therein, Benitez
admitted that she had not seen the March 10 shootout from the
third-floor hallway window of 1540 Hassock Street. She stated
that she arrived at the building only after police were
already at the scene. Benitez then went to
"Donald's" third-floor apartment, where
Shaquana Ellis, Shaquana Delain, and others had already
gathered. Second 440, Exh. J. They stayed in the apartment
"all night because the police would not let us
out." Id. When police came to speak with them
the next morning,
Shaquana Ellis pulled me [i.e., Benitez] aside and
told me to lie to the police and tell them I saw what
happened. Shaquana told me a story to tell the police about
my seeing Tully [Hyman] shooting a gun at Jonathan
[Whitmore]. Shaquana Ellis was a friend of Jonathan Whitmore
and Jonathan's friends. I never did see Tully that night
because I was not there when everything happened. . . . I
told the police I was not there when it happened and that I
did not know anything. The police kept telling me that I did
see what happened and if I did not tell them, I would be
arrested. . . . I told them the story Shaquana had told me to
say and they wrote it down.
another affidavit, Ellis's friend, Stacey Manning,
recounted that, in the summer of 2002, Ellis told Manning
that "she [i.e., Ellis] didn't see who was
shooting" during the March 10 gunfight, but she falsely
testified in order "to help her cousin's baby's
father, a guy named Jonathan Whitmore." Second 440, Exh.
T. Manning said Ellis professed fear that authorities
"w[ould] lock her up" if she now said that she had
Blye, a private investigator retained in connection with
Hyman's § 440 motion, submitted an affidavit stating
that, on September 7, 2005, he conducted an audiotaped
interview with Shaquana Ellis who admitted that she had not
seen the March 10 shootout. Ellis said she was inside an
apartment when she heard- but did not see-the shooting occur.
Ellis stated that she testified to seeing Hyman firing a gun
because she had been threatened by "people from the
neighborhood." Second 440, Exh. U.She said that someone
called her home, told her what had happened, and what she
should tell police. See Hyman v. Brown, 197
F.Supp.3d at 439. Ellis told Blye that she had admitted not
seeing the shootout to Amanda Benitez. She did not
withdraw her statement to the police for fear of prosecution,
but she felt "'real bad' because Mr. Hyman does
not deserve to be in jail." Second 440, Exh. U.
§ 440 counsel, Robert DiDio, filed an affirmation
stating that Ellis had confirmed to him what she had told
Blye, i.e., that she had not witnessed the March 10
shootout. Ellis refused, however, to sign an affidavit to