Second Circuit: Brady Claim Not Barred by Heck

by Mark Wilson

The en banc Second Circuit Court of Appeals has held that a Brady claim is not Heck-barred when a defendant’s conviction is vacated but he subsequently pleads guilty to a lesser charge in exchange for immediate release.

During a March 1997 robbery, two men shot New York cab driver Younis Duopo. Only a spent shell casing, five one-dollar bills and a black hat were found during an initial search.

The next day a detective searched the cab again and supposedly discovered a wallet containing two identification cards belonging to Francisco Poventud. The ID cards were used to create a photo array that was shown to Duopo, and he unequivocally identified Francisco as the shooter.

Francisco, however, had an iron-clad alibi: he was incarcerated when Duopo was shot. So detectives focused on Francisco’s brother, Marcos Poventud, even though he did not resemble the photo of Francisco that Duopo had identified as the shooter.

“On consecutive days one week after the crime,” detectives “showed Duopo photo arrays containing [Marcos] Poventud’s picture,” but Duopo did not identify him as the perpetrator. One day later, Duopo was shown Marcos’ photo a third time. He again failed to identify him. Later that day he was shown Marcos’ picture a fourth time and finally “identified him as the shooter.” He then picked Marcos out of a lineup.

In violation of NYPD policy, the detectives did not preserve the photo array in which Duopo had initially incorrectly identified Francisco. They also did not disclose that exculpatory evidence to prosecutors, so the state unknowingly withheld it from the defense.

During Marcos Poventud’s 1998 trial, defense counsel attempted to impeach the credibility of Duopo’s identification by emphasizing the number of times it took him to identify Marcos. No evidence was introduced about Duopo’s incorrect identification of Francisco.

During deliberations the jury asked “for more information about Duopo’s failures to identify” Marcos. After four days of deliberations, the jury was “hopelessly deadlocked.” Nevertheless, deliberations continued and on the fifth day, Marcos was convicted of attempted murder, assault and weapon possession. He was sentenced to a 20-year maximum prison term.

In 2002, the New York Court of Appeals vacated the conviction of Marcos Poventud’s co-defendant. During the re-trial, prosecutors learned about Duopo’s erroneous identification of Francisco and disclosed that evidence to the defense. Marcos’ co-defendant was then acquitted.

In October 2005, the trial court granted Marcos’ motion to vacate his conviction. See: People v. Poventud, 802 N.Y.S.2d 605 (N.Y. Sup. Ct. 2005). Based on the newly disclosed exculpatory evidence, the court found that prosecutors had violated their disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286 (N.Y. 1961).

The state declared its intent to appeal and opposed Marcos’ release on bail. No appeal was filed, however, and he was released in January 2006 after pleading guilty to a non-violent offense with a stipulated one-year sentence.

Marcos then filed suit in federal court, alleging that the 1998 Brady violation had deprived him of due process. The district court granted summary judgment to the defendants, finding that Marcos’ suit was barred by Heck v. Humphrey, 512 U.S. 477 (1994) because his 2006 guilty plea had not been vacated. Heck “precludes the use of § 1983 suits for damages that necessarily have the effect of challenging existing state or federal criminal convictions.”

In April 2013, a panel of the Second Circuit Court of Appeals reversed. See: Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013). The entire appellate court then granted rehearing en banc and affirmed on January 14, 2014, finding that Marcos’ Brady claim was consistent with his guilty plea, and “that Heck does not bar Poventud’s § 1983 suit because his claim does not necessarily imply the invalidity of his outstanding conviction.” Three judges issued concurring opinions and three issued dissenting opinions, and the case remains pending on remand. See: Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014).

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