Poventud v. City of N.Y.

• Decision Date: 19 April 2013
• Docket Number: Docket No. 12–1011–cv.
• Citation: 715 F.3d 57
• Parties: Marcos POVENTUD, Plaintiff–Appellant, v. CITY OF NEW YORK; Robert T. Johnson, in his official capacity as District Attorney for Bronx County; Frankie Rosado, Kenneth Umlauft, Christopher Dolan, and Daniel Toohey, individually and as members of the New York City Police Department, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

715 F.3d 57

Marcos POVENTUD, Plaintiff–Appellant,
v.
CITY OF NEW YORK; Robert T. Johnson, in his official capacity as District Attorney for Bronx County; Frankie Rosado, Kenneth Umlauft, Christopher Dolan, and Daniel Toohey, individually and as members of the New York City Police Department, Defendants–Appellees.

Docket No. 12–1011–cv.

United States Court of Appeals,
Second Circuit.

Argued: Dec. 20, 2012.
Decided: April 19, 2013.

Joel B. Rudin, Esq., Law Offices of Joel B. Rudin, New York, NY, and Julia P. Kuan, Romano & Kuan, New York, NY, for Plaintiff–Appellant.

Mordecai Newman, Larry A. Sonnenshein, and Rachel Seligman Weiss, of

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counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, for Defendants–Appellees.

Before: JACOBS, Chief Judge, CALABRESI and SACK, Circuit Judges.

Chief Judge JACOBS dissents in a separate opinion.

CALABRESI, Circuit Judge:

In June 1998, plaintiff-appellant Marcos Poventud was convicted of attempted murder in the second degree, attempted robbery in the first degree, assault in the first degree, and criminal possession of a weapon in the second degree. He was sentenced to 10 to 20 years in prison. Poventud ultimately succeeded in having his conviction vacated, but the prosecution appealed, and Poventud was denied bail. Rather than await a new trial in custody, Poventud pled guilty to a lesser charge for which the penalty was a one-year sentence—a jail term that Poventud had already served.

In May 2007, Poventud brought the instant action under 42 U.S.C. § 1983, alleging Brady violations against the officials who conducted his original investigation and prosecution. In July 2009, Poventud stayed this proceeding pending the outcome of a state-court motion to invalidate his guilty plea. Poventud later withdrew the state motion without prejudice and resumed this suit. In June 2011, defendants moved for summary judgment. The District Court (Batts, J.) granted the motion in March 2012, ruling that Poventud's § 1983 claims are barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). See Poventud v. City of New York, No. 07 Civ. 3998(DAB), 2012 WL 727802, at *3 (S.D.N.Y. Mar. 6, 2012).

We disagree. Because Poventud is no longer in custody, and therefore can no longer bring a federal habeas suit, Heck's narrow exception to § 1983's otherwise broad coverage does not apply. Poventud may bring suit under § 1983 regardless of any defenses which might arise based on his subsequent guilty plea to the lesser charge. Accordingly, we vacate the District Court's decision granting summary judgment and remand for further proceedings.

BACKGROUND

The parties dispute various points in the factual record. When, as here, we review a grant of summary judgment dismissing a complaint, “we construe the evidence in the light most favorable to the plaintiff, drawing all reasonable inferences and resolving all ambiguities in his favor.” Colavito v. N.Y. Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir.2006).

In March 1997, Younis Duopo was robbed and shot in the head or neck by two men sitting in the back seat of a livery cab that Duopo was driving through the Bronx. Later, Frankie Rosado, a detective, found a wallet on the floor of the cab by the front passenger seat. Somehow the NYPD Crime Scene Unit had missed the wallet. The wallet contained a pair of old photo I.D. cards belonging to Francisco Poventud, brother of the plaintiff-appellant. When investigators showed Duopo a photo array containing one of the photos of Francisco Poventud (who allegedly looks nothing like his brother), Duopo positively identified it as a picture of his assailant. At the time, however, Francisco Poventud was incarcerated and could not possibly have committed the crime. Detectives then showed Duopo photo arrays containing a picture of Marcos Poventud. Only upon seeing Marcos's photo for the fourth time did Duopo identify Marcos as the shooter. Marcos was arrested, identified (by Duopo) at a line-up, and indicted, along

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with a co-defendant, Robert Maldonado, whom Duopo also identified. Investigators left no record of the false identification of Francisco Poventud; they also did not disclose it to defense counsel or to the Bronx County prosecutors; and they did not preserve the photo array.

Marcos Poventud learned all of this only during the 2003 retrial of Robert Maldonado. In December 2004, Poventud filed a motion under N.Y. C.P.L. § 440.10 to vacate his conviction on the ground that the prosecution withheld exculpatory evidence. The New York Supreme Court for Bronx County granted this motion in October 2005. The prosecution filed a notice of appeal; successfully argued that Poventud be denied bail; and offered him immediate release in exchange for a guilty plea to a non-violent, Class E felony charge of third-degree attempted robbery. By this time, Poventud had been incarcerated for nearly nine years. Poventud testifies that during his imprisonment he endured gruesome and repetitive physical and sexual abuse; that he attempted suicide; and that he suffered from depression and post-traumatic stress disorder. In January 2006, Poventud accepted the terms of the plea bargain and went home.

Poventud now contends that he was deceived into pleading guilty. He alleges that the assistant district attorney knew, but did not disclose, that the district attorney's office had decided not to perfect its appeal. Poventud alleges further that the ADA withheld crucial information from the defense. When he learned of these omissions, Poventud stayed the instant federal suit and moved in state court to have his guilty plea vacated as involuntarily given. The New York Supreme Court for Bronx County granted an evidentiary hearing on the question of voluntariness, but Poventud withdrew his motion without prejudice. He says he did this after learning that he had multiple myeloma, after nearly dying from kidney failure, and after undergoing bone and stem cell transplants and chemotherapy. Poventud asserts that he thought the stress and infection risks of a new trial, together with the possibility, however remote, of returning to jail, would kill him. After withdrawing his state motion, Poventud resumed this federal action under 42 U.S.C. § 1983, in which he alleges violations of his federal due process and fair trial rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He also sues the City of New York for failing properly to train its officers.

The district court found that, because plaintiff's guilty plea was to conduct that “necessarily required his presence at the scene of the crime,” success on a § 1983 claim arising out of the suppression of evidence relevant to his alleged misidentification would “logically imply the invalidity” of his guilty plea. Poventud, 2012 WL 727802, at *3. This being so, the court continued, Poventud could survive summary judgment under Heck only by showing “that the challenged conviction has been reversed, expunged, invalidated, or called into question.” Id. Poventud could do none of this, the court concluded, either as to his first conviction or to his guilty plea. Moreover, Poventud's “decision not to pursue in the state court an available remedy by which he could invalidate his [guilty plea] does not relieve him of his obligation to demonstrate its invalidity if he is to avoid the bar established in Heck.” Id. at *4. The district court granted defendants' motion for summary judgment, and this appeal followed.

DISCUSSION

We review grants of summary judgment de novo. See Anemone v. Metro. Transp. Auth., 629 F.3d 97, 113 (2d Cir.2011).

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We conclude that Heck does not bar Poventud's § 1983 claims. Under the law of this Circuit, a plaintiff asserting the unconstitutionality of his conviction or incarceration must have access to a federal remedy. Normally that remedy is through a § 1983 action. If, however, the plaintiff is in custody, Heck may apply and require that the plaintiff assert his claim first in a habeas petition. As Poventud is no longer in custody, Heck does not bar his claims under § 1983. The district court erred, then, in granting summary judgment against him on the basis of Heck. The law of this Circuit in this matter derives from the interplay of two Supreme Court decisions: Heck v. Humphrey itself, and the subsequent Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

Heck and Spencer

The petitioner in Heck was a state prisoner who sought relief under § 1983. Earlier, Heck had twice sought and failed to secure relief under the federal habeas statute. In upholding the dismissal of Heck's § 1983 claims, the Supreme Court held that when the success of a § 1983 claim would “necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement,” the complaint must be dismissed unless the plaintiff can “prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus.” Heck, 512 U.S. at 486–87, 114 S.Ct. 2364. In other words, the Court continued,

when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.

Id. at 487, 114 S.Ct. 2364. This statement tracked the fact pattern in Heck, which involved “a state prisoner”—that is, someone still in custody. In a footnote, and in dicta, the Court suggested, however, that the rule should similarly apply to plaintiffs no longer in custody: “We think the principle barring collateral attacks ... is not rendered inapplicable by the fortuity that...