Lopez v. Miller

Decision Date16 January 2013
Docket Number02-CV-3988 (NGG) (LB)
PartiesWILLIAM LOPEZ, Petitioner, v. DAVID L. MILLER, Superintendent, Eastern Correctional Facility, Respondent.
CourtU.S. District Court — Eastern District of New York

NICHOLAS G. GARAUFIS, United States District Judge.

The case of William Lopez began twenty-three years ago. It was rotten from day one.

In 1989, a man entered a crackhouse in Brooklyn and shot and killed a drug dealer named Elvirn Surria. Lopez was charged with murder for this shooting. After a jury trial before Justice Carolyn Demarest in New York Supreme Court, Lopez was convicted and sentenced to twenty-five years to life in prison. His direct appeal and state collateral proceeding—again before Justice Demarest, twenty years later—were unsuccessful. Lopez now asks this court to grant his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition"), which argues, among other things, that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. The court resolves this Petition today.

Any discussion of Lopez's case must begin with the weakness of the evidence the prosecution presented at trial. Lacking a murder weapon or any forensic evidence connecting Lopez to the shooting, the prosecution relied upon the testimony of two witnesses who were present at the crime scene, only one of whom identified Lopez.

The first, Daisy Guadalupe Flores Lopez ("Flores," and no relation to the Petitioner), came face-to-face and spoke with the shooter but did not recognize Lopez when she saw him in the courtroom. She described the shooter as a "tall, dark, black" man above 6'3" in height. Lopez is around 5'7" and the State later conceded that his "complexion could not be described as black." Justice Demarest agreed that it was "not possible [that] this defendant could have committed the crime based upon [Flores's] description."

The second witness was Janet Chapman. On the morning of the shooting, Chapman was in a room in the basement of the crackhouse in the midst of a two-day crack binge, and admittedly had smoked ten to twelve vials of crack in the two hours prior to the shooting. She told a prosecutor after the crime that she did not witness the shooting but saw Lopez with a gun, went back into her room, and then heard a shot and a body fall. At the trial itself, she switched gears and testified that she did in fact see Lopez shoot Surria through the partially ajar door to her room. After trial, Chapman changed her story yet again, this time even more dramatically— she claimed that Lopez was not present at all at the scene of the crime and that her testimony had been a "pure fabrication" made under duress from the prosecution.

Just as important are those who did not testify. Lopez claims he told his trial attorney that his mother-in-law and sister-in-law (the "alibi witnesses") were ready to testify that Lopez had been with them around the time of the crime. Counsel later stated that he had interviewed one witness and decided not to call her. But both witnesses have since submitted affidavits swearing that counsel never spoke to either of them regarding an alibi defense and describing in detail their interactions with Lopez around the time of the murder.

Another key non-witness was Earline Cafield, who knew Janet Chapman when both of them were inmates at Rikers Island jail. After trial but prior to sentencing, Cafield sent a letter toa prosecutor stating that Chapman had told her that someone other than Lopez had committed the crime. The prosecution forwarded this letter to Lopez's counsel, but counsel never mentioned its contents to Justice Demarest.

Finally, just a few months ago, Lopez's habeas counsel was able to track down a man named Cesar Diaz in the Dominican Republic. At an evidentiary hearing before this court, Diaz testified via videoconference that he was in the crackhouse when Surria was killed and saw the shooting. Diaz described the shooter as a "black, dark-skinned" man approximately 5'3" in height. When shown a mug shot of Lopez taken soon after the murder, Diaz said he was "certain" that the person in the picture was not the shooter.

In short, the prosecution's evidence was flimsy to begin with and has since been reduced to rubble by facts arising after trial. Habeas relief, however, is an extraordinary remedy, particularly for those prisoners who are in custody pursuant to a judgment of a state court. Lopez has a number of challenging hurdles to surpass if he is to receive it.

The first is a procedural hurdle. Lopez's Petition is indisputably untimely under the one-year statutory limitation period prescribed for habeas petitions from state prisoners. See 28 U.S.C. § 2244(d)(1). He argues, however, that he should be excused from this limitation period because he has made a credible and compelling showing that he is actually innocent of the crime. See Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012). To establish a "gateway" claim of actual innocence and thus overcome his procedural default, Lopez must demonstrate using "'new reliable evidence'" that it is "'more likely than not . . . [that] no reasonable juror would find him guilty beyond a reasonable doubt—or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.'" Id. at 541 (quoting House v. Bell, 547 U.S. 518, 538 (2006), and Schlup v. Delo, 513 U.S. 298, 324 (1995)). Based on the weakness of theprosecution's case and the new evidence Lopez has presented since trial, the court concludes that any reasonable juror would have reasonable doubt as to his guilt; he is thus excused from the limitation period. (See Part II.)

The second hurdle is one of state-court deference. Lopez's ineffective assistance of counsel claim was rejected on the merits by Justice Demarest during Lopez's collateral state court proceeding. This means that under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), the court may not grant habeas relief unless Justice Demarest's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). The court concludes that Justice Demarest's analysis of the new evidence Lopez submitted in support of his ineffective assistance claim was an unreasonable determination of the facts under § 2254(d)(2). Indeed, her refusal to hold an evidentiary hearing to develop the central factual disputes underlying Lopez's claim—without so much as an explanation—is baffling, not to mention unfortunate because the two alibi witnesses are now no longer available to testify. (See Part III.A.)

Finally, there is a constitutional hurdle. Putting aside the reasonableness of Justice Demarest's adjudication of his claim, Lopez must show that he is being held in custody in violation of the United States Constitution. See 28 U.S.C. § 2254(a). For his ineffective assistance of counsel claim, he must show: (1) that his counsel's representation "fell below an objective standard of reasonableness"; and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Lopez has satisfied this standardbecause of his trial counsel's failure to call his available alibi witnesses, a decision that had no basis in reasonable trial strategy and undermines the court's "confidence in the outcome" of Lopez's trial. Id. at 694. (See Part III.B.)

For these reasons and those set forth below, Lopez's Petition for Writ of Habeas Corpus is GRANTED.

A. Trial Evidence and Proceedings

The evidence at trial shows that on August 31, 1989, sometime after 2:00 a.m., two men entered the basement of a crackhouse at 3053 Brighton Fifth Street in Brooklyn and demanded money and drugs from a drug dealer named Elvirn Surria. (Trial Tr. (Dkt. 59-2) at 247-50.) One of the men shot Surria twice with a double-barreled shotgun. (Id. at 250-54.) The weapon was not recovered (id. at 427), but Surria was later determined to have died from a single shotgun wound to the abdomen (Trial Tr. (Dkt. (59-1) at 161-62). William Lopez was charged for this shooting in New York Supreme Court, Kings County. (Goodman Aff. (Dkt. 59) ¶ 5.) Following a jury trial before Justice Carolyn Demarest, he was convicted of second-degree murder, second-degree criminal possession of a weapon, and third-degree criminal possession of a weapon. (Trial Tr. (Dkt. 59-3) at 722-23.) He was sentenced to concurrent terms of imprisonment totaling twenty-five years to life. (Sentencing Tr. (Dkt. 59-3) at 21.)

Two eyewitnesses testified at trial. The court will discuss each of their testimony in turn.

1. Testimony of Daisy Guadalupe Flores Lopez

Daisy Guadalupe Flores Lopez was an immigrant from El Salvador. (See Trial Tr. (Dkt. 59-2) at 229.) On August 31, 1989, she was working at the crackhouse for Surria, whom she knew as "Moreno"; her job was to open the door to the crackhouse and hand people drugs. (Id.at 229-30, 232, 247-54.) She "[n]ever" used drugs herself but accepted the job from Surria because she had been unable to secure other employment. (Id. at 254-55.)

Drug deals at the crackhouse took place at a side door entrance into the building. (Id. at 235.) The side door was the only point of entrance and exit into the basement, which was down the stairs past the side door after entry. (Id. at 232-37, 334.) There were five rooms in the basement. (Id. at 331-32.)

At around 2:00 a.m. on the morning of the shooting, Flores went down with Surria to one of the rooms in the basement of the crackhouse, and the two talked for awhile and listened to music. (Id. at 247-48....

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