Ortega v. Duncan

• Decision Date: 18 June 2003
• Docket Number: No. 01-2629.,01-2629.
• Parties: Ruben Ortega, Petitioner-Appellant, v. George Duncan, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

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Ruben Ortega, Petitioner-Appellant, v. George Duncan, Respondent-Appellee.

No. 01-2629.

United States Court of Appeals, Second Circuit, August Term, 2002.

Argued January 27, 2003.

Decided June 17, 2003.

Errata Filed June 18, 2003.

Petitioner convicted of murder sought habeas relief based on the recantation of testimony of a key eyewitness. The United States District Court for the Eastern District of New York, John Gleeson, Judge, denied relief on the ground that petitioner failed to prove that the witness's recantation was credible and that his trial testimony was therefore false.

Reversed.

Steven B. Wasserman, New York, NY (The Legal Aid Society, of counsel), for Petitioner-Appellant.

Monique Ferrell, Assistant District Attorney, Kings County, Brooklyn, NY (Charles J. Hynes, District Attorney, and Leonard Joblove and Jane S. Meyers, Assistant District Attorneys, of counsel), for Respondent-Appellee.

Before OAKES, CALABRESI and SACK, Circuit Judges.

OAKES, Senior Circuit Judge:

Petitioner Ruben Ortega seeks habeas relief on the grounds that his murder conviction in state court was obtained on the perjured testimony of a purported witness to the crime. The witness, Dana Garner, originally testified that he saw Ortega shoot the victim but later recanted this testimony. Garner also recanted testimony in two other cases, both of which resulted in the dismissal of charges against those defendants. The United States District Court for the Eastern District of New York, John Gleeson, Judge, held that the state court had erroneously denied Ortega post-conviction relief and granted a hearing on the truthfulness of Garner's recantation. The district court then denied Ortega's habeas petition, finding Ortega did not meet his burden of proving that Garner told the truth in his recantation and therefore had lied in his trial testimony. Because we find that the district court erred in focusing solely on the credibility of Garner's recantation rather than on the question of whether Garner's trial testimony was perjured, we reverse.

BACKGROUND

In the very early morning of June 25, 1990, three men, Lionel Diaz, Ricardo Betances, and Angel Narvaez, were standing on a street corner in Brooklyn when a car pulled up. Three men exited the car, two carrying guns, and one shot Diaz in the chest at close range. As Betances and Narvaez fled, the men shot at them, hitting both of them in the back. Diaz died at the scene; the other two survived.

On June 27, 1990, Dana Garner went to the local police precinct to discuss a murder that had occurred a week earlier in which he claimed to have seen Jeffrey Blake commit the crime.¹ While he was there, the police asked him if he knew anything about the events of June 25th. Garner admitted to knowing the victims, and identified Ruben Ortega as one of the men in the car. Although Garner did not initially name Ortega as the man who shot Diaz, he later identified Ortega in a photo array as the shooter. Garner confirmed his identification of Ortega in a lineup on June 28, 1990. A grand jury indicted Ortega on charges of second-degree murder on July 26, 1990.

At Ortega's trial, Garner testified as follows. At approximately 4:15 a.m. on June 25th, he was going to meet his mother at the subway station when he saw a small car containing a driver and two passengers approach three men standing at an intersection. Garner then saw two men, one of whom he recognized as Ortega, exit the car carrying guns. He saw Ortega walk toward the three men and shoot Diaz in the chest with a pump-action shotgun. The other gunman then started shooting Diaz with a handgun as Diaz lay on the ground. Ortega then shot Narvaez in the back with the shotgun. As Narvaez began to run away, the other gunman fired at him until he fell. Garner then met his mother, who arrived in time to see the victims lying in the street.

Betances and Narvaez also testified at Ortega's trial. Betances testified that Ortega got out of the back seat of the car, pointing a shotgun at Betances, Narvaez, and Diaz, and approached Diaz. After an exchange of words, Ortega shot Diaz in the chest. As Betances ran away, he heard more shots and was hit in the back by a shot from the shotgun.

Narvaez testified for the defense. He testified to the same sequence of events as Betances, including being shot himself in the back by the shotgun, but stated that Ortega was not the shotgun shooter. He also testified that he did not see Garner, whom he knew, that night. On cross-examination, the prosecution read the description that Narvaez gave of the shotgun shooter a week after the events, which more closely matched a description of Ortega than the one Narvaez gave at trial. On re-direct, Narvaez testified that Ortega's mother visited him after he was released from the hospital, showed him a photo of Ortega, and asked if Narvaez recognized the person. Narvaez said he did not.

In March 1991, Ortega was convicted by a jury of Diaz's murder and began serving his sentence of twenty-five years to life. His appeals in state court were unsuccessful. See People v. Ortega, 214 A.D.2d 591, 625 N.Y.S.2d 574 (2d Dep't 1995); People v. Ortega, 86 N.Y.2d 739, 655 N.E.2d 716 (1995).

In December 1998, the District Attorney informed Ortega's counsel that Garner had testified falsely at Jeffrey Blake's trial. The District Attorney's office investigated Garner's testimony after receiving information that Garner was not in the New York area at the time of the murder for which Blake was tried. Garner recanted his testimony about Blake and, because Blake's conviction was obtained solely on the basis of that testimony, the District Attorney vacated the conviction and dismissed Blake's indictment.

The Legal Aid lawyer who now represents Ortega met with Garner in May 1999. At that time, Garner executed an affidavit in which he stated that he was not present when Diaz, Betances, and Narvaez were shot, and that he had lied when he testified that his mother was with him and witnessed the victims lying in the street. He further stated that when he visited the 75th Precinct on June 27, 1990, two police detectives told him the details of the shooting and suggested he should testify as if he had witnessed it.²

In October 1999, Ortega filed a § 440 Motion with the state court seeking to set aside his conviction on the basis of the newly-discovered evidence of Garner's recantation. The court held a hearing at which Garner reiterated his recantation of his testimony at Ortega's trial. Additionally, an investigator with the District Attorney's office testified that Garner's mother stated in an interview that she did not recall seeing a shooting, that Dana did not typically meet her at the subway, and that it would have been unusual for her to be coming home to Brooklyn at that time. A cousin of Garner's also testified to Garner's reputation in the family as a liar. In response to this evidence, the state offered an affidavit from Narvaez in which he recanted his testimony at Ortega's trial and stated that Ortega was the man who shot Diaz and Narvaez with the shotgun.

The court denied Ortega's § 440 motion on the ground that the issues surrounding Garner's testimony would not lead the jury to reach a different verdict. The court explicitly refused to make a finding on the credibility of Garner's recantation, and later indicated in conference that, because of Narvaez's recantation, the outcome of a new trial for Ortega would be the same regardless of Garner's credibility.

In August 2000, Ortega filed a petition for habeas corpus in federal court, claiming on the basis of newly-discovered evidence that his due process rights were violated when Garner testified falsely at his trial. The district court found that the state court's denial of Ortega's § 440 motion was erroneously predicated on Narvaez's recantation rather than on Garner's trial testimony and the credibility of Garner's recantation. The district court concluded that a hearing was necessary to determine whether Garner's recantation was truthful. At the hearing, Garner again recanted his trial testimony and testified that he had not witnessed Diaz's murder. Garner stated that he was pressured by the police to testify against Ortega.

One of the detectives who interviewed Garner on June 27, 1990, also testified at the hearing and denied giving Garner any information about the Diaz shooting. The hearing record was supplemented with the interview of Garner's mother in which she denied being at the scene of the murder. It was also supplemented with an affidavit of Betances, in which he stated that he did not know who shot him or Diaz with the shotgun, but that the police had visited him two days after the shooting and told him that Garner had identified Ortega as the shooter. Although Betances was unable to pick Ortega out of a photo array, he nevertheless agreed to identify Ortega as the shooter at trial.

Based on the evidence presented at the hearing, the district court held that Ortega had failed to carry his burden of proving by a preponderance of the evidence that Garner was telling the truth when he said he did not witness Diaz's murder and that he lied at Ortega's trial. The district court found that Garner's recantation was unworthy of belief and that Garner's credibility was virtually nonexistent. The district court also rejected Ortega's claims of police and prosecutorial misconduct with respect to Garner's testimony. On the basis of those conclusions, the district court denied Ortega's petition for habeas relief and for a certificate of appealablilty on September 20, 2001.

On May 16, 2002, our court granted Ortega a certificate of appealability on four issues: (1) whether there is precedent of the United States Supreme Court holding that the prosecution's presentation at trial of perjured testimony that it does not know is perjurious violates due process; (2) if there is no such precedent, whether relief...