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Hyman v. Brown

United States Court of Appeals, Second Circuit

June 24, 2019

Tullie Hyman, Petitioner-Appellee,
William D. Brown, Superintendent, Respondent-Appellant,

          Argued: November 29, 2017

          On Appeal from the United States District Court for the Eastern District of New York

         On 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.

         Judgment 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.

          Glenn A. Garber (Rebecca E. Freedman, on the brief), The Exoneration Initiative, New York, New York, for Petitioner-Appellee.

          Before: Jacobs, Raggi, and Droney, Circuit Judges.

          Reena Raggi, Circuit Judge.

         Respondent 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.

         When 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.

         On 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.


         In 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.

         I. Overview

         On the 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.[1] 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.

         New 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 years.

         At the 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.[2] Sentenced to a total prison term of 21 years to life for these crimes, [3] 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 timely appealed.

         II. State Proceedings

         A. Trial

         1. Trial Evidence

         To 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.

         a. Hyman's Statements

         i. March 11, 2000

         On 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[4] 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.

         Trial Tr. at 1388-89.

         ii. March 12, 2000

         The 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.

         Approximately 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.[5]

         iii. June 8, 2000

         On June 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 scene.

         b. Eyewitness Testimony

         While 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.

         i. Margaret Contreras

         Margaret 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.[6] 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.

         Although 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.

         ii. Lynn Burton

         Lynn 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.[7] 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.

         iii. Deborah McCoy

         Deborah 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 name.[8]

         iv. Shaquana Ellis

         Shaquana 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.

         Ellis 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.

         c. Forensic Evidence

         Within 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.

         The 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.

         Police 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.[9] 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.[10] 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 Hassock Street.

         Police 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.

         Meanwhile, 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.

         Forensic 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.

         B. Conviction and Direct Appeal

         After 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 imprisonment.

         Hyman 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 854 (2005).

         C. Collateral Challenges to Conviction

         1. First § 440 Motion

         On 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).

         2. Second § 440 Motion

         On July 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.

         a. Kevin Hinkson

         Investigator 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.[11] 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.

         Hinkson 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.[12]

         b. Amanda Benitez

         On 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.


         c. Stacey Manning

         In 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 lied. Id.

         d. Irwin Blye

         Irwin 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.[13] 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.

         e. Robert DiDio

         Hyman's § 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 ...

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