Poventud v. City of N.Y., Docket No. 12-1011-cv

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtRICHARD C. WESLEY
PartiesMARCOS 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 NumberDocket No. 12-1011-cv
Decision Date14 January 2014

MARCOS POVENTUD, Plaintiff-Appellant,
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


Filed: May 6, 2011
August Term, 2013
Argued: September 25, 2013
Decided: January 14, 2014



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WESLEY, J. filed the majority opinion in which KATZMANN, C.J., CALABRESI, POOLER, SACK, HALL, LYNCH, LOHIER, and CARNEY, JJ., joined.

LYNCH, J. filed a concurring opinion.

LOHIER, J. filed a concurring opinion in which CALABRESI, POOLER, WESLEY, HALL, and LYNCH, JJ., joined.

CHIN, J. filed an opinion dissenting in part and concurring in part.

JACOBS, J. filed a dissenting opinion in which CABRANES, RAGGI, LIVINGSTON, and DRONEY, JJ., joined.

LIVINGSTON, J. filed a dissenting opinion in which JACOBS, CABRANES, RAGGI, and DRONEY, JJ., joined.

Appeal from a decision of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) granting summary judgment to defendants and dismissing plaintiff's 42 U.S.C. § 1983 claims as barred by Heck v. Humphrey, 512 U.S. 477 (1994). A previously constituted panel of this Court held that the plaintiff could sue under § 1983 because he was no longer in custody and had no access to federal habeas relief. Poventud v. City of New York, 715 F.3d 57, 62 (2d Cir. 2013). Pursuant to a vote of the active judges of this Court, that opinion is vacated. Following this rehearing en banc, and for the reasons discussed herein, the Court holds that Heck does not apply to the plaintiff because his claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), does not necessarily imply that his guilty plea is invalid. We need not reach the issue of whether Heck applies to plaintiffs who have been released from prison or otherwise do not have access to habeas.


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JOEL B. RUDIN, Law Offices of Joel B. Rudin, New York, NY (Julia P.
Kuan, Romano & Kuan, New York, NY, on the brief), for
Plaintiff-Appellant Marcos Poventud.

MICHAEL B. KIMBERLY, Mayer Brown LLP, Washington, D.C.
(Richard D. Willstatter, National Association of Criminal
Defense Lawyers, White Plains, NY; Marc Fernich, New York
State Association of Criminal Defense Lawyers, New York,
NY; Charles A. Rothfeld, Paul W. Hughes, Mayer Brown LLP,
Washington, D.C.; on the brief), for Amicus Curiae National and
New York State Associations of Criminal Defense Lawyers.

MORDECAI NEWMAN (Leonard Koerner; Larry A. Sonnenshein; Linda
Donahue; Rachel Seligman Weiss; on the brief), for Zachary W.
Carter, Corporation Counsel of the City of New York, New
York, NY, for Defendants-Appellees City of New York, et al.

CAITLIN HALLIGAN (Hilary Hassler, Assistant District Attorney, New
York County; Steven A. Bender, Assistant District Attorney,
Westchester County; Morrie I. Kleinbart, Assistant District
Attorney, Richmond County; Itamar J. Yeger, Assistant
District Attorney, Rockland County; on the brief), for Kathleen
M. Rice, President, District Attorneys Association of the State
of New York, New York, NY, for Amicus Curiae District
Attorneys Association of the State of New York.

BARBARA UNDERWOOD, Solicitor General (Richard Dearing, Deputy
Solicitor General; Won S. Shin, Assistant Solicitor General; on
the brief), for Eric T. Schneiderman, Attorney General of the
State of New York, New York, NY, for Amici Curiae States of
New York, Connecticut, and Vermont.

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RICHARD C. WESLEY, Circuit Judge:

In June 1998, Marcos Poventud was convicted of attempted murder in the second degree and several other related crimes. New York courts upheld Poventud's conviction on appeal. People v. Poventud, 300 A.D.2d 223 (1st Dep't 2002), leave denied, 1 N.Y.3d 578 (2003). In 2004, Poventud successfully brought a state collateral challenge to his conviction based on Brady v. Maryland, 373 U.S. 83 (1963), and People v. Rosario, 9 N.Y.2d 286 (1961). His conviction was vacated and a new trial ordered. People v. Poventud, 802 N.Y.S.2d 605, 608 (Sup. Ct. Bronx Cnty. 2005). While the State weighed appealing the Brady decision, Poventud pled guilty to the lesser charge of attempted robbery in the third degree, pursuant to a plea agreement that dismissed all other charges and stipulated to a one-year sentence (time already served). Upon entry of the plea, Poventud was immediately released. Thereafter, Poventud sued the City of New York and various police officers alleging a violation of his constitutional rights in his 1998 trial.

Poventud's § 1983 claim is centered on the state court determination that he was denied access to evidence in the government's possession that had a reasonable probability of affecting the result of his trial. The district court was of

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the view that this claim was at odds with Poventud's later plea because, although the withheld evidence supported the alibi Poventud employed at his 1998 trial, his plea colloquy contradicted that defense. As a result, the district court determined that Poventud's § 1983 claims called into question the validity of his 2006 plea and granted summary judgment for the defendants. It based its decision on a long-standing Supreme Court decision, Heck v. Humphrey, 512 U.S. 477 (1994), that precludes the use of § 1983 suits for damages that necessarily have the effect of challenging existing state or federal criminal convictions. Heck requires that "in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the [challenged] 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, 28 U.S.C. § 2254." 512 U.S. at 486-87.

Poventud did exactly what Heck required of him. He sought a state court determination that his due process rights were violated in his jury trial, he secured a state court judgment vacating his 1998 conviction, and the State chose

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not to appeal. Heck, therefore, does not bar Poventud's claims. Accordingly, the district court's summary judgment for defendants is vacated and the case is remanded for further proceedings consistent with this opinion.1


In March 1997, two men robbed livery cab driver Younis Duopo and shot him in the head or neck.2 An initial search of the cab by Crime Scene Unit ("CSU") detectives uncovered only a spent shell casing, five one dollar bills, and a black hat from the back seat. The day after the shooting, and after CSU searched the vehicle, New York City Police Department ("NYPD") Detective Frankie Rosado reported to the garage and conducted his own search of the cab; this search revealed a wallet on the floor of the cab containing two ID cards that

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belonged to Poventud's brother, Francisco Poventud. Sergeant Kenneth Umlauft prepared a photo array using the ID cards recovered from the cab; he showed Duopo the array and Duopo unequivocally identified Francisco as his shooter. The NYPD soon discovered that Francisco had been incarcerated at the time of the crime and turned to Poventud, who did not resemble the photograph of Francisco shown to Duopo, as the most likely carrier of Francisco's wallet.3

On consecutive days one week after the crime, Rosado and NYPD officer Daniel Toohey showed Duopo photo arrays containing Poventud's picture; Duopo did not identify Poventud as the perpetrator on either occasion. The day after the second failed identification, NYPD officers showed Duopo Poventud's picture for a third time. Later that day, Duopo viewed Poventud's picture for a fourth time and he identified him as the shooter. The officers brought Poventud

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in to take his statement, at which point Duopo identified him in a lineup. Despite NYPD policies forbidding such behavior, the officers neither preserved nor disclosed to the Bronx District Attorney's Office the photo array in which Duopo mistakenly identified Francisco.

Assistant District Attorney ("ADA") Gregg Turkin prosecuted Poventud and codefendant Robert Maldonado, whom Duopo also identified in a lineup. Before trial, Turkin asked Umlauft about some stray photographs in the file; Umlauft explained them away without disclosing that he had completed a separate photo array from which Duopo had identified Francisco as the shooter. Turkin, ignorant of this information, did not disclose it to the defense.

At trial in 1998, Duopo was the only witness to identify Poventud as the shooter. Defense counsel tried to impeach the credibility of Duopo's identification by focusing on the multiple attempts that it took to identify Poventud; these efforts were bolstered by Duopo's two additional mistaken identifications of Maldonado's brother as Poventud's partner in crime. Poventud's defense was that he was not present in the cab; he...

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