Marcos Poventud v. City of New York

POVENTUD, Marcos Plaintiff-

Appellant, YORK; OF Frankie Rosa

CITY NEW

do, Umlauft, Christopher Do Kenneth Toohey, individually

lan, and Daniel City

and as members New York Department, Defendants-App

Police

ellees.*

No. 12-1011-cv. Appeals,

United States Court of

Second Circuit.

Argued Sept. Jan.

Decided

* caption The Clerk of the Court is directed to amend as listed above.

Fernich, New York State Association of Criminal Lawyers, Defense York, New NY; Rothfeld, Charles A. Paul W. Hughes, Mayer LLP, Brown Washington, D.C; brief), on the for Amicus Curiae Na- tional and New York State Associations of Criminal Lawyers. Defense (Leonard Mordecai Koerner; Newman Larry Sonnenshein; A. Donahue; Linda Weiss; Rachel Seligman brief), on the for Jeffrey Friedlander, D. Acting Corpora- tion City York, Counsel of the of New New York, NY, for Defendants-Appellees City York, of New et al.

Caitlin Halligan Hassler, (Hilary Assis- tant Attorney, District New York County; Bender, Steven A. Assistant District At- torney, Westchester County; Morrie I. Kleinbart, Assistant District Attorney, County; Richmond Itamar Yeger, J. Assis- tant District Attorney, County; Rockland brief), on the for Rice, Kathleen M. Presi- dent, District Attorneys Association of the York, York, State of New NY, New Amicus Curiae Attorneys District Associa- tion of the State of New York. Underwood, Barbara Solicitor General (Richard Dearing, Deputy Solicitor Gener- al; Shin, Won S. Assistant Solicitor Gener- al; brief), on the for Eric T. Schneider- man, Attorney General of the State of New York, York, NY, New for Amici Curiae Rudin, Joel B. Law Offices of Joel B. York, Connecticut, States of New and Ver- Rudin, (Julia York, Kuan, New NY P. mont. Kuan, York, NY, Romano & New on the brief), for Plaintiff-Appellant Marcos Po- KATZMANN, Before: Chief Circuit ventud. JACOBS, Judge, CALABRESI,

Michael B. Kimberly, Mayer CABRANES, POOLER, SACK, Brown RAGGI, LLP, (Richard Washington, D.C. WESLEY, HALL, D. LIVINGSTON, Wills- tatter, National LYNCH, CHIN, Association of Criminal LOHIER, CARNEY, Lawyers, Plains, Defense NY; DRONEY, White Marc Judges.** Circuit ** Judges Senior Circuit in en banc participate Calabresi and Sack ble rehearing. were three-judge members of panel the initial 46(c)(1). U.S.C. appeal heard this eligi- are therefore served). (time Upon entry already majority opinion tence

WESLEY, filed J. immediately re- Poventud was KATZMANN, C.J., plea, in which Thereafter, sued the HALL, POOLER, SACK, leased. CALABRESI, police offi- City of New York and various CARNEY, JJ., LOHIER, LYNCH, of his constitution- alleging cers a violation joined. trial. rights al in his 1998 concurring opinion. LYNCH, filed a J. claim is centered on concurring opinion LOHIER, filed a J. determination that he was the state court C.J., KATZMANN, in which govern- access to evidence denied POOLER, SACK, CALABRESI, possession ment’s had reasonable LYNCH, HALL, WESLEY, affecting the result probability JJ., CARNEY, joined. was of the view trial. The district court claim was at with Poven- this odds dissenting in CHIN, opinion filed an J. because, although the plea tud’s later with- part. concurring part and Poventud supported held evidence alibi JACOBS, dissenting opinion filed a J. collo- plea at his 1998 his employed CABRANES, RAGGI, which As a re- contradicted that defense. quy JJ., DRONEY, joined. LIVINGSTON, and sult, that Po- court determined the district question § claims called into ventud’s 1983 LIVINGSTON, dissenting J. filed granted and validity plea his 2006 CABRANES, JACOBS, opinion which defendants. It summary judgment for the JJ., DRONEY, joined. RAGGI, and long-standing Su- its decision on a based WESLEY, Judge: decision, Humphrey, v. Circuit Court Heck preme C. RICHARD 2364, 477, 129 L.Ed.2d 114 S.Ct. was con- 1998, Poventud In Marcos June (1994), the use of precludes 383 in the second murder attempted victed necessarily damages 1983 suits for crimes. other related and several degree challenging existing have the effect of con- upheld Poventud’s York courts New Heck or federal criminal convictions. state Poventud, 300 People v. appeal. on viction damages “in to recover requires that order (1st 223, Dep’t N.Y.S.2d 654 A.D.2d 752 conviction allegedly for unconstitutional 578, 2002), 1 N.Y.3d leave denied harm caused or for other imprisonment, (2003). In 807 N.E.2d N.Y.S.2d would render actions whose unlawfulness successfully brought a 2004, Poventud invalid, §a conviction or sentence to his conviction challenge state collateral [challenged] prove that the plaintiff must Maryland, 373 U.S. on v. based reversed or sentence has been conviction (1963), L.Ed.2d 215 by executive appeal, expunged on direct Rosario, 286, 213 9 N.Y.2d People v. order, by a state tribunal declared invalid (1961). His 173 N.E.2d 881 N.Y.S.2d determination, or make such authorized to and a new trial was vacated conviction court’s question by a federal called into Poventud, 10 Misc.3d People ordered. corpus, of habeas issuance of writ (Sup.CtBronx 802 N.Y.S.2d 486-87, 2254.” 512 U.S. U.S.C. ap- weighed Cnty.2005). While State decision, pled pealing re- exactly what Heck Poventud did charge attempted to the lesser court sought He a state quired of him. pursuant to a robbery degree, in the third rights process due that his all other determination agreement that dismissed plea trial, he secured a jury in his were violated one-year to a sen- charges stipulated judgment vacating equivocally state court identified Francisco as his conviction, to ap- the State chose not shooter. The NYPD soon discovered that Heck, therefore, peal. Po- had been does bar Francisco incarcerated at Accordingly, Poventud, time of the crime ventud’s claims. the district and turned to judgment for summary photograph court’s defendants who did not resemble the case is for shown Duopo, vacated and the remanded Francisco as the most proceedings likely further consistent with carrier Francisco’s wallet.3 opinion.1 days On consecutive one week after the crime, Rosado NYPD officer Daniel Background Toohey Duopo photo arrays showed con- livery In March two men robbed taining picture; Duopo Poventud’s did not Duopo cab driver Younis and shot him identify Poventud as perpetrator on An head or neck.2 initial search either day occasion. The after the second (“CSU”) cab Unit detec- Crime Scene identification, failed NYPD officers showed casing, tives a spent uncovered shell Duopo picture for third time. bills, five from one dollar and a black hat day, Later Duopo viewed Poventud’s day shooting, back seat. The after the picture a fourth time and he identified vehicle, and after New CSU searched him shooter. brought as the The officers (“NYPD”) York City Department Police statement, in to Poventud take his reported Detective Frankie Rosado to the him point Duopo which identified in a line- garage and his own of conducted search up. Despite policies NYPD forbidding cab; the this on search revealed wallet behavior, such the pre- officers neither the floor of cab ID containing the two served nor disclosed to Bronx the District brother, cards that to belonged Poventud’s Attorney’s array Office photo which Sergeant Francisco Poventud. Kenneth Duopo mistakenly identified Francisco. prepared photo using Umlauft array cab; (“ADA”)

ID cards from he Attorney recovered Assistant District Duopo array showed un- Duopo Gregg prosecuted Turkin Poventud and Thus, today disputed by our decision has no need to of these 3.Some facts are question plaintiff address the of whether a panel’s dissenting opinion and in the dissents challenges allegedly who unconstitutional opinion today. filed with our See Poventud v. incarceration, longer conviction or but is no York, 57, (2d City New 66 715 F.3d Cir. of custody and therefore has no access to 2013) (Jacobs, ludge, dissenting). At trial the habeas, remedy has recourse to a federal un- are, course, argue defendants of free to to the §der jury disputed their version that of these facts example, Duopo is correct—for wrote 2. These facts are drawn from Second that Francisco Poventud like” the "looks Complaint Amended Re the Plaintiff's shooter, (internal quotation see id. at 66 sponse to Rule Defendants’ 56.1 Statement omitted); marks and Marcos bear a Francisco Although and Statement Additional Facts. 67; resemblance, striking id. at or the see trial, may disputed be "[b]e- these facts "immediately” wallet was found after the cause this to us [defendants’] case comes on Jacobs, Judge hold-up, Dissenting Op. post, summary judgment, motion for ‘the evidence above, granting noted order at 151. As in an believed, justifi be [Poventud] is to and all judgment, genuine summary we all construe able to drawn fa [his] inferences are be ” disputes of material fact in favor of the non- Image vor.' Eastman Kodak Co. v. Techni moving party. Servs., Inc., 451, 456, United States v. Sum cal U.S. 112 $185,336.07 2072, (1992) Currency U.S. Citi Seized (quoting 119 L.Ed.2d 265 from 242, L7N01967, 189, Inc., Liberty Lobby, Account 731 F.3d Anderson v. Bank U.S. zen’s 255, 2505, (2d Cir.2013). (1986)). 106 S.Ct. L.Ed.2d 202 2002, was conviction Maldonado, In Maldonado’s whom Robert

codefendant York Court of by the New lineup. Before overturned identified also Duopo Maldonado, 97 N.Y.2d v. Appeals, People about some Umlauft Turkin asked 389, 769 N.E.2d 1281 file; ex- 743 N.Y.S.2d in the Umlauft stray photographs was af- (2002), conviction while Poventud’s disclosing away without them plained Division and leave array by Appellate separate photo firmed completed he had Appeals Francisco appeal identified Court Duopo had from which Poventud, Turkin, A.D.2d of this v. ignorant People denied. as the shooter. (1st 2002), Dep’t it to the de- information, not disclose N.Y.S.2d 654 did denied, 578, 775 N.Y.S.2d 1 N.Y.3d leave fense. (2003).4 During Mal- N.E.2d 907 Duopo was trial in At retrial, Jeremy ADA Shock- new donado’s as the shoot- identify Poventud witness erroneous iden- Duopo’s about ett learned impeach counsel tried Defense er. disclosed Francisco. Shockett tification of identification fo- credibility Duopo’s counsel. Mal- information to defense it multiple attempts cusing on acquitted. donado Poventud; these efforts identify took to by Duopo’s two additional were bolstered informa- newly revealed Based on of Maldonado’s identifications mistaken moved, to New tion, pursuant partner in crime. as Poventud’s brother 440.10, Law York Criminal Procedure that he was not defense was Poventud, People v. his conviction. vacate cab; that he was in the he testified present (2005). 802 N.Y.S.2d 10 Misc.3d video apartment playing neighbor’s at a obli- a violation of the disclosure Finding posited He further games instead. Maryland, 373 under gations men who were shot three Duopo was 10 L.Ed.2d 215 livery shooting of a for another arrested Rosario, (1963), People v. 9 N.Y.2d driver, Duopo days after the cab seventeen 448, 286, 173 N.E.2d 213 N.Y.S.2d to shoot using gun the same used shooting, (1961), Poventud’s con- the court vacated testified, Although Umlauft Duopo. viction October 2005. defense, mis- unaware of the victim’s still Attorney’s opposed Office The District Francisco, of was unable identifications its release on bail and indicated Poventud’s them. Duopo about question Umlauft § deci- the court’s 440.10 appeal desire to requests for more jury The submitted with the agreement to an sion. Pursuant iden- Duopo’s failures to information about guilty in Janu- pled Poventud prosecution, indicating that it and a note tify Poventud robbery in the third ary attempted 2006 to after four deadlocked” “hopelessly felony, E with a degree, a nonviolent class It both convicted days of deliberations. He was im- one-year sentence. stipulated day; fifth and Maldonado on the Poventud mediately released. mur- attempted was convicted Poventud 2007, initiated this May In Poventud attempted rob- degree, in the der second suit, conviction vio- alleging that his 1998 in the first bery degree, in the first assault right pro- to due lated his constitutional weap- of a possession and criminal degree, 2009, stayed pending this suit cess. In he judge sen- degree. in the second on validity his to the challenge a state court him to an indeterminate sentence tenced col- abandoned that guilty plea. Poventud years’ imprisonment. 10 to 460.20(2). § C.P.L. by Judge See N.Y. denied G.B. Smith. 4. Leave was attack, however, and shooting lateral refocused on and robbery, consistent with the § claim requirements his under U.S.C. 1983. of malicious prosecution alia, claims. Id. inter (citing, Smith- 2011, In the defendants moved for sum Harvey, 191, Hunter v. 196-97, 95 N.Y.2d mary judgment, asserting that Heck v. 438, (2002)). 712 N.Y.S.2d 734 N.E.2d 750 477, Humphrey, 512 Because a plea to a charge lesser-included constitutional tort barred Poventud’s requirement, does not meet Judge argued plea claims. Poventud his had Batts held that Heck barred Poventud’s claim, nothing § to do with which his claim. Id. jury concerned his trial conviction that had vacated as a of his Brady been result appealed panel Poventud to a of this victory. Judge rejected that Batts view April Court In a divided motion, granted finding that Po held that panel did not apply Heck § challenged ventud’s 1983 suit a state Poventud’s lawsuit because he had been (his conviction which plea) court had not released from prison therefore no City vacated. been Poventud New longer had corpus access to habeas reme- York, 07-CV-3998(DAB), No. 2012 WL Poventud, dies. 715 F.3d 60.6 We or- (S.D.N.Y. 2012). at *3 Mar. banc, dered this en rehearing vacated the Judge Batts saw connection between the panel’s opinion,7 and, for the reasons stat- undisclosed exculpatory evidence and Po below, ed find that Heck does not bar defense vеntud’s at trial. She then con 1983 suit because his claim cluded that factually Poventud’s alibi was does necessarily imply the invalidity of inconsistent with subsequent guilty his outstanding conviction.

plea. Id.5 relationship Because of the perceived

she between misidentifica Governing Law tion evidence and the erroneous alibi at Heck, I. 42 U.S.C. and the In- trial, Judge Poventud’s 1998 Batts re validity Outstanding Convictions quired prove favorable termination of In charge arising from Klux passing the Ku Klan Act of criminal transaction that occurred with Congress Stat. created cause fair, 5.Specifically, Judge wrote: request briefing Batts To be our centered provided on the pivot issue that the decisional Plaintiff seeks to avoid conclusion that panel majority relationship for the —the validity his suit calls the of his second con- § access to and the habeas relief use of 1983. by question arguing viction into that his briefing goes The result was that of the some initial conviction was invalidated and that to a much than broader issue that which we he challenge subsequent does not his con- today. decide by guilty plea. argument viction Plaintiff's unavailing. guilty plea, Plaintiff's which essence, In many the want to dissents revisit resulted in his second conviction and sen- separated judges of the issues that on the tence, necessarily was to conduct which panel. initial The dissents' continued unease required presence at his the scene of the opinion with the earlier is irrelevant to the § crime. To succeed on 1983 claim task at hand. As we several note times in this alleged based on an failure to reveal evi- opinion, we decide this matter on the narrow- supporting dence claim to have his been possible grounds est passing any without elsewhere when crime to which he judgments previously expressed on views pleaded guilty occurred would thus call into by panel majority, either the of the members question validity by his of conviction by who considered themselves bound circuit guilty plea. not, precedent way en in a banc Court is Poventud, 727802, by 2012 WL at *3. or the then lone dissenter. 2364, 477, 114 S.Ct. 512 U.S. remedy parties phrey, “a gave action that of (1994), effectively subor- rights, privileges has L.Ed.2d 383 of constitutional deprived his abuse of of remedy an official’s to the writ and immunities dinated 167, Pape, 365 U.S. Monroe v. position.” would the remedies corpus habeas when (1961), 473, L.Ed.2d 492 81 S.Ct. (and extent, to some even when overlap by Monell v. grounds on other overruled not).” Fallon, Jr., Richard H. they do Servs., 658, 98 436 U.S. Dep’t Social Meltzer & Manning, F. Daniel J. John (1978). “It was L.Ed.2d The Shapiro, L. Hart & Wechsler’s David but unavailability of state remedies not the System The Federal Federal Courts & to enforce certain States the failure of (6th ed.2009). furnished the hand that equal with an laws Preiser, denied a Supreme Court In this ‘force behind momentum powerful ” § 1983 for state cause of action under 174-75, Monroe, at 81 S.Ct. bill,’ deprivation their prisoners challenging (citation omitted), now codi- which is pursuant credits good-conduct-time This statute fied at 42 U.S.C. procedures and seek- state administrative provides: [they enti- were] ing “a determination who, any color of under Every person speedier custom, release or tled to immediate statute, ordinance, or regulation, imprisonment.” Territory or the release from any [state] or usage, of State Columbia, subjects, or causes Because the at 93 S.Ct. 1827. District of very citizen Unit- fact subjected, “challenging prisoners be were person within or other imprison- ed States physical duration of [their] deprivation to the jurisdiction thereof ment,” id., the Court described which or immunities se- any rights, privileges, of the writ [of “the traditional function laws, shall cured the Constitution ],” at corpus habeas id. injured an ac- party to the

be liable provid- corpus held that habeas the Court law, prop- or other equity, suit tion relief, id ed the vehicle to seek sole redress, except that proceeding for er prisoners The con- 93 S.Ct. 1827. judicial of- brought against any action challenging prisoner “that a state ceded taken in such ficer for an act or omission on underlying conviction and sentence injunctive re- judicial capacity, officer’s in a grounds federal federal constitutional granted unless declar- lief shall not be corpus,” and the court is limited to habeas declaratory violated or atory decree was recognize a distinction declined to Court pur- unavailable. For relief was a final adminis- challenge was to where section, any Act of Con- poses of this Id. at 93 S.Ct. 1827. trative decision. Dis- exclusively to the gress applicable decided, the year The after Preiser was be considered to trict of Columbia shall process addressed a due Supreme a statute of the District Columbia. Court be that a prisoners alleged claim in which suggests § 1983 language broad procedures deprivation good prison’s involving any con- applicability to cases its constitutionally credits were defective time Indeed, deprivation. stitutional credits, insti- restoration of the sought to appealing § made it breadth of 1983 officials, and plan by prison a new tution of challenge prisoners sought who state rights deprivation for the of civil “damages unconstitutional. their confinement allegedly from the use of the resulting However, Court, in Preiser Supreme “[t]he v. 1827, procedures.” unconstitutional 475, Rodriguez, v. 93 S.Ct. Wolff McDonnell, 539, 553, 94 418 S.Ct. (1973), Hum- U.S. and Heck v. 36 L.Ed.2d 439

129 (1974). 2963, 478, 41 The at L.Ed.2d 935 Court 114 2364. S.Ct. While his direct appeal that foreclosed the com- held Preiser of his conviction pending was quest good-time court,9 “restoration of plaint’s § for state Heck brought a 1983 suit 554, at 94 2963. credits.” Id. S.Ct. How- alleging that Indiana police and investiga- ever, expressly contemplated “Preiser tors “knowingly destroyed had § properly brought claims under 1983 which exculpatory in nature and could go could forward while actual restoration innocence,” proved have 479, [his] id. at good-time sought pro- (internal credits is in state 114 S.Ct. quotation 2364 marks ceedings. prisoners’] damages claim omitted). [The § Heck’s 1983 suit “sought, properly was therefore before District among things, other compensatory pu- required Court and determination of the monetary nitive damages,” but not re- validity procedures employed of the for lease.10 Heck sought Id. reimbursement sanctions, imposing loss of including good for the violation his constitutional rights (citation omitted). time....” Id. based on allegedly his unlawful confine- ment. The trouble Heck was that was still Heck, In the Court noted the distinction prison pursuant to judgment his of con- prisoners’ plea between the fate of the for viction pursued as he his suit. good-time damages and for arising credits process from claims of administrative Rejecting proposals for an exhaustion process. 482, afoul ran of due 512 U.S. at requirement, explicitly Heck Court 114 Critically, S.Ct. 2364. the Court read damages held that actions could be permit prisoners bring “a Wolff brought by prisoners state before exhaust- claim using wrong proce- for ing remedies; however, all state it noted dures, reaching wrong not for result.” that this proposition “may not be true ... 482-83, at Recognizing Id. S.Ct. 2364. when establishing the for the basis dam- a due claim process morph into could ages necessarily claim demonstrates the claim, “wrong result” the Court was invalidity of the In that conviction. situa- damages careful to that the for note tion, the claimant can be to be ‘attack- said ” procedures wrong use did need ing length confinement,’ the fact or by to be of good “measured actual loss which impermissible. 512 U.S. at 481- 482, “Thus, time.” Id. at S.Ct. 2364. 82, Preiser, 2364 (quoting S.Ct. the claim at issue did not call into Wolff 1827) (emphasis U.S. at 93 S.Ct. question plaintiffs the lawfulness of the omitted). alterations “[I]n order recov- continuing confinement.” Id. 114 er damages allegedly for unconstitutional (emphasis original).8 imprisonment, conviction or for other Roy Heck harm voluntary was convicted of caused actions whose unlawful- manslaughter killing wife. U.S. ness would render a conviction or sentence A attempts securing later decision clarified even suits two 10.Heck’s habeas alleging procedures of improper use up petition relief had come short: "his first would be barred where "the nature of the corpus for a writ of habeas in Federal District challenge procedures to the could be such as Court was dismissed because it contained necessarily imply invalidity judg- claims; unexhausted and his second federal Balisok, ment.” Edwards denied, petition habeas the denial (1997). 137 L.Ed.2d 906 affirmed the Seventh Circuit.” Id. at 114 S.Ct. 2364. Supreme upheld Indiana Court Heck's pending conviction while his 1983 case was before the Seventh Circuit. Id. at S.Ct. 2364.

130 of or confine- his conviction invalid, plaintiff prove must unlawfulness § 1983 ment, re- just always applied has been as it to or sentence has conviction the exec- expunged by id. at appeal, prosecution,” for malicious on direct actions versed order, invalid state 486,114 declared utive S.Ct. 2364. make such determi- authorized to tribunal prosecution analogy to malicious by a federal nation, into question or called throughout Heck. The Court continues corpus, habeas of of issuance writ court’s “[jjust action a cause of for held as 486-87, § at 2254.” Id. 28 U.S.C. not accrue until prosecution malicious does relied on civil claim 2364. As Heck’s S.Ct. proceedings have terminated the criminal validity challenged the innocence favor, § so also a plaintiffs in the his incarcer- that secured of the conviction damages for attributable to cause of action criteria; ation, he had it met none of these or sentence an unconstitutional conviction § 1983. cause of action under no the conviction not accrue until does on an analysis, relied In its the Court Id. has been invalidated.” at sentence of mali- the law tort analogy to common (internal 489-90, 114 S.Ct. 2364 citations “because, re- unlike the prosecution cious omitted). However, opinion stops the arrest or of action for false lated cause holding prosecu- of that malicious short damages it for con- permits imprisonment, requirement, tion’s favorable termination imposed pursuant legal pro- finement law, governs at common all applied Heck, 484, 114 at S.Ct. cess.” good § suits—and for reason. The The Court focused on favorable only Heck Court dealt with Heck’s claim requirement, an “element that termination and its interaction with the available writ in a malicious alleged proved must be corpus. no of habeas There was reason of action.” Id. The benefit prosecution divine attempt every for the Court “ litiga- parallel that it ‘avoids this rule is permutation of constitutional possible tort probable the issues cause and tion over of proceedings might related to criminal precludes possibility it of the guilt and way into find its federal courtrooms as a in the tort action succeeding elaimant[’s] § 1983 claim. The issue Heck was underly- in the having been convicted after § brought whether a 1983 claim could be in contravention ing prosecution, criminal invalidity when that claim of suggested the cre- strong judicial against policy existing an state court conviction. conflicting arising ation of two resolutions ” of the same or transaction.’ out identical II. Malicious Prosecution Suits and Krause, Speiser, & (quoting

Id. 8 S. C. A. Favorable Termination 28:5, Gans, Torts American Law of suits (alteration omitted). prosecution Malicious re (1991)) preserve To “ offense, quire, as an ‘the element “finality consistency,” id. in favor proceeding termination hoary applied the Court “the ” Smith-Hunter, 95 the accused.’ N.Y.2d that civil actions are principle tort 191, 195, 734 N.E.2d 750 challenging N.Y.S.2d appropriate vehicles for (2002) (quoting Broughton v. State New validity judgments criminal outstanding York, 451, 457, N.Y.2d ... that neces- 373 N.Y.S.2d damages actions (1975)).11 sarily require prove “[U]nder 335 N.E.2d 310 plaintiff compensated fairly injuries “'Over the the common law caused centuries rules, developed imple- legal rights. These has rules to violation of his de- torts a set of damages pre- principle person fining the that a should be elements of ment

131 of a any Appeals common law final termination United States Courts of have cited in proceeding criminal favor of the ac- Humphrey authority [Heck v.] as for the cused, § proceeding proposition that the cannot be such 1983 claims for mali- again, qualifies as a favorable ter- cious brought prosecution do not accrue until their prose- of a purposes respective prosecutions mination malicious criminal in end ac- Smith-Hunter, 95 quittal.” cution actiоn.” N.Y.2d at Id. 658. 438, 195, at 712 N.Y.S.2d 734 N.E.2d 750. In rightly unaf- decided and DiBlasio — omitted). (citations “A termination is not by today fected our holding panel of —a [however], accused, if favorable this Court addressed Mario DiBlasio’s or charge prosecution is withdrawn DiBlasio, claim prosecution. of malicious to a pursuant compromise abandoned with following jury convicted a trial of criminal Indeed, it the accused. is hornbook law sale of cocaine and charges, related se- charges

that “where are or the withdrawn cured of through vacatur his conviction prosecution is terminated reason of a brought habeas in the Eastern District suit compromise into which the accused has of alleged New York the state voluntarily, entered there is sufficient no identify failed to produce a confidential ” termination in favor of the accused.’ Id. retrial, informant. Id. at 655. On DiBla- 196-97, 438, at 712 N.Y.S.2d 734 N.E.2d only sio was convicted of one of lesser Keeton, 750 (quoting Prosser and Torts included offenses. He then under Id. sued (5th ed.1984)) (alterations 119, § 875 1983, § “alleging prosecution by malicious (Second) omitted); see also Restatement the police officers.” He Id. contended 660(d) (1977). § Torts his conviction of a was a lesser offense favorable result that him dam- entitled In context 1983 malicious ages prosecution for malicious on the more cases, prosecution Heck’s bar coexten is serious crimes. The district court dis- sive with the favorable termination re 656, missed and we affirmed. Id. at 659. See, quirement. e.g., People McNeill v. N.Y., No. 06-CV- City and State in challenging DiBlasio successful 4843(NGG), conviction, 2006 seemingly compli- WL *2-3 initial (E.D.N.Y. 24, 2006), Oct. by summary ance with Heck’s mandate. re- He was aff'd order, (2d Cir.2007); convicted, 242 777 tried Fed.Appx. but for a lesser Brown, 97-CIV-5351(SS), Papeskov v. No. DiBlasio offense. contended that this was (S.D.N.Y. required 1998 at *5 June result WL favorable as Heck. (2d 1998), (table) aff'd, 173 F.3d 845 Cir. Because DiBlasio’s claim was for malicious 1999). cases, prosecution, In panel disagreed. these state malicious “Al- cases, prosecution the tort though cannot stand in some instances habeas court underlying may unless the ‘“fi proceeding criminal cases terminate a criminal ” nally City favor, v. end[ ] failure.’ DiBlasio defendant’s the reversal of a York, (2d Cir.1996) New 102 F.3d conviction and remand for new trial does Smith, 1, 5, (quoting Burt v. 181 N.Y. 73 not constitute such a Di- termination.” omitted). (1905)) Blasio, Court, (emphasis N.E. ap- “It 102 F.3d at therefore, standard, surprising, plying is not prosecution that several the malicious omitted). (1978)) (alteration “Thus, requisites recovery, provide ap- for their deter- propriate starting point inquiry for the under present mine whether there bar to the ” Heck, as well’ suit, U.S. at law we look first to the common Carey (quoting Piphus, Heck, torts." U.S. at 114 S.Ct. 247, 257-58, 55 L.Ed.2d 252 Bureau, Cnty. 135 termi v. Homicide proceeding son the criminal “h[e]ld Suffolk (2d Cir.1998) (“[A] 254, on the claim for convicted 257 DiBlasio was F.3d nated when requisite considered not be lacks the The writ could use of excessive force retrial. DiBlasio since find- relationship [A] of innocence’ to the an ‘indication conviction.... of and sale the possession both in fact been conceded that excessive force had ing ulti fact that the Id. The the cocaine.” the in- necessarily require not used would count was on a lesser conviction.”). conviction was mate of the validation arising out irrelevant, charges because the many vio prosecutions, malicious Unlike had to be criminal transaction of the during rights, of constitutional even lations “[t]he as a whole brought together and process, may criminal remedied be or in in failure case did not end State’s validity of a convic impugning without DiBlasio’s at 659. favor.” Id. DiBlasio’s sues example, suspect For a tion. when claim prosecution § malicious 1983 force, a arresting officer for excessive his (despite Heck-barred properly thus may proceed § even if the sus ‍​​​‌​​‌‌‌‌‌​​​​​​​‌​​​​‌‌​‌‌‌‌​​‌​​‌​‌‌​‌​‌‌​​‌‌‍1983 suit vacated) initial fact that his conviction ultimately resisting of pect is convicted prosecution under New malicious because VanGilder, at 692. arrest. 435 F.3d termination requires “favorable York law unlawfully arrested plaintiff is When a valid conviction proceedings” of cause, § claim probablе his 1983 without court prevented the lesser crime on any v. before Wallace accrues conviction. termination.” finding “favorable from 1091, 166 Kato, 397, 127 549 U.S. S.Ct. in outstanding conviction was Either the (2007); v. L.Ed.2d 973 see Morris also valid, prose malicious or the elements of (10th Noe, n. 2 672 F.3d 1193-94 met; precisely not DiBlasio cution were Cir.2012). acknowledges that Even Heck judgment “a of case which the sort could lead many unreasonable searches necessarily im plaintiff favor of the would independent § actions that of 1983 exist Heck, invalidity of his conviction.” ply proceed of criminal the termination 487, 114 Heck, 512 U.S. at n. ings. 487 § 1983 claim every Not 2364; Superintendent see also Gibson v. of requires that out of a criminal case arises Safety-Div. Dep’t Law N.J. & Pub. reach a underlying process criminal (3d Police, 411 448 Cir. State F.3d “Contrary to the favorable termination. 2005), by Di grounds on overruled other case, Heck does court’s view in this district Police, 181, 188 v. N.J. State 603 F.3d que automatically § claim sim bar a not Cir.2010). (3d criminal processes of the ply because system up plain did end in the justice not Including Claims, § 1983 III. Other prove A plaintiff tiff’s favor. need not Brady Claims incident stemming conviction from an emphatically This invalidated, Court has only a police has with the been Brady-based properly confirmed with that could not be reconciled conviction necessarily imply claims the inval action.” the claims of civil VanGilder Cir.2006) (7th in the Baker, idity conviction challenged 435 F.3d v. (or Brady retained, plea) trial in which the violation quotation internal (emphasis Weiner, omitted); 179 F.3d Jack- occurred.12 Amaker v. marks and alterations cf. (1st Cir.2011); Boston, reject We out of conten- F.3d City hand defendants’ provide a tion that cannot Brady violations City Muskogee Dep’t, v. Police Beck See, Haley e.g., v. basis for claim. (2d Cir.1999). right pre-trial 51-52 That should come a defendant’s disclo- remedy surprise; no for a sure under Brady is conditioned on his judgment violation is vacatur ability demonstrate that he would or in which the conviction and new trial probably prevail even would at trial if the now has the defendant material disclosed,” evidence were much less that available to her. he is in fact innocent. Osborne Dist. “ Dist., Att’y’s Third Jud. Office for components ‘There are three 1118, (9th Cir.2008), F.3d 1132 rev’d on Brady a The of true violation: evidence 52, 2308, other grounds, 557 U.S. 129 S.Ct. accused, to the issue must be favorable (2009). 174 remedy L.Ed.2d 38 The for a it is or exculpatory, either because because trial, claim Brady is a therefore new impeaching; it is must have evidence of proof the constitutional violation need State, by suppressed been either will See, not guilt. be odds with his e.g., fully inadvertently; or prejudice must ” Sipe, 471, United States v. 388 F.3d 493 Rivas, have ensued.’ v. United States (5th Cir.2004). (2d Cir.2004) 195, (quoting 377 F.3d 199 Greene, 263, 281-82, Strickler v. This Brady/Heck Court’s seminal case (1999)). 1936, 119 S.Ct. 144 L.Ed.2d 286 brought pro by Amaker, Anthony se prejudice, plaintiff To establish a must who had been degree convicted of second materiality: show in Brooklyn murder People 1989. See v. Amaker, 605, ‘A showing materiality 605, of re- does not A.D.2d 602 N.Y.S.2d (2d quire 1993). by preponderance demonstration a Dep’t The Appellate Divi- suppressed conviction, disclosure of the sion evi- affirmed his rejecting his dence id.; would have resulted ultimately claim, ineffective of assistance counsel (whether acquittal the defendant’s appeal based by leave was denied the Court of on presence Amaker, reasonable doubt Appeals. People v. 82 N.Y.2d acceptance explanation an for the 940, 604 N.Y.S.2d 624 N.E.2d 1035 inculpate (table decision). crime that (1993) does not the defen- While incarcerated dant). The touchstone of is materiality conviction, pursuant to his Amaker probability reasonable a different §a brought alleging conspiracy 1983 suit result, adjective important. and the is by “police, prosecutors, [his] defense attor- question is not whether defen- neys, eyewitness, the trial an judge, dant likely would more than not have court personnel various ... to secure [his] received a different verdict with the evi- by inculpato- conviction ... manufacturing dence, but whether in its he absence ry subsequently suppressing evidence and trial, received a understood as a рrobative of their misconduct.” fair resulting trial in a worthy verdict Weiner, Amaker v. 179 F.3d at 49. This rejected appropriately argument confidence.’ Court (2d Portuondo, triggered by that Heck was Leka v. 257 F.3d not Amaker’s Cir.2001) Kyles light meaningful “claim his court (quoting Whitley, v. ha[d] access been denied the withhold- L.Ed.2d (1995)) (alterations omitted, ing exculpatory evidence.” Id. at 51. emphasis added).13 Brady “While ensures a fair “In ... claim substance sounds under (10th Cir.1999); course, City proven

F.3d Walker v. a defendant not Of when doubt, York, (2d Cir.1992). beyond only reasonable New 974 F.2d “worthy acquit- an verdict of confidence” is tal, regardless guilt. of the defendant’s actual the district court’s Herein lies Maryland, and therefore does Brady validity of question into his call The district court treated Poven indeed error. it is barred Accordingly, conviction. though case as it were malicious tud’s omitted). (citation on Success Id. Heck.” It measured his ad prosecution claim.15 his con- mean that claim would Amaker’s agreement in the subsequent plea mission viction, not still on the which Brady his claims submis against actually provided the ba- which books but was at plea Because his 2006 odds sion. incarceration, was the ongoing sis for his alibi at his 1998 with his defense (and a mas- of a violation product Judge recovery Batts concluded that his Id. cover-up). sive plea call his into for a claim would present But Heck does That Bra question. view misunderstands where the under 1983-suits same bar dy and its correlation to 1983 claims already been ex conviction has lying asserting only right violations longer the conviction is no “out punged; court’s view in process. due The district See, City v. standing.” e.g., Moldowan of that, correctly presumes on facts of (6th Warren, F.3d 376-77 Cir. 578 case, the violate this State could Poven 2009).14 retried, is Even when a defendant Brady rights only if Poventud is an tud’s concerning § the earlier trial a 1983 suit man. innocent This last restriction has no trial’s result. impeach not the new could law; Brady materiality in the case basis Gonzales, 222 F.3d v. Smith innocence, depend not factual but does on Cir.2000). (10th A “invalidate[s] court proven rather what would have been ab in judgment state criminal trial [a] final scope of a sent the violation. de “[T]he conviction.” vacate[s] Id. [it] [a] when [Bra(%-based] constitutional fendant’s on, § moment 1983 suit would From that right[]is ultimately retrospective defined invalidity of vacat not demonstrate ly, by likely that the to the effect reference Id. not conviction. It also would im ed particular suppression evidence had on retrial, of face could which on its not pugn the outcome the trial.” United States violations at replicate the constitutional is of (2d Cir.2001) Coppa, 267 v. F.3d (since must, by sue the defendant defini added) Strickler, (citing (emphasis tion, the Brady have been made aware of vacatur). 1936).16 281, 119 In material before Id. at this Livingston underlying premise 14.Judge ignores this distinction 15. This is also the of the Switzer,-U.S.-, arguing that Skinner v. dissents. 1289, 1300, 131 S.Ct. 179 L.Ed.2d 233 (2011), comprises general prohibition on course, 16. Of there a distinction between a is Dissenting § Brady-based Op. claims. victory premised at trial the State’s on failure Skinner, Livingston, Judge post, at 165. of prove guilt victory premised to one’s and a on Amaker, citing prisoners bringing notes that misapprehension the law. the court’s of judgment qualifying claims “seek recognize do not this difference and dissents speedier release them for immediate or from Fretwell, therefore misunderstand Lockhart imprisonment,” claims and that such are 122 L.Ed.2d 180 113 S.Ct. “within the traditional core of habeas cor- (1993), in assumed which the Court Skinner, (internal pus.” object then-pre- counsel's failure to based on omitted). Poventud, quotation marks Since vailing but circuit law later-overturned was longer has who is no incarcerated and al- and whether the deficient evaluated defendant relief, ready post-conviction does won not prejudice suffered with an awareness of the language imprisonment, from seek release legal later-established standard. Failure to Livingston Judge excerpts Skinner from advantage likely district court’s misleading take and the issue now irrelevant to application misappre- court's us. the circuit before case, right has the to lect a sum in argue considerable “incаrceration- that, damages” jury with the main State witness based would have impugned the validity of manslaughter been his later convic- impeached, acquitted he would have tion, day as Olsen not in prison did serve a on on based reasonable doubt convicted over his lawful for manslaughter, sentence charge.17 a lesser despite his initial murder conviction. Id. We find the First Circuit’s decision However, the court did not analogous Olsen v. Correiro and instruc- portion jury’s disturb award (1st Cir.1999). tive. 189 F.3d Ol- that was based on of other “evidence dam- sen, degree convicted first ages associated with his trial murder (based murder, secured vacatur on question conviction.” Id. at 55. The investigating officers’ failure disclose damages was left for the which jury, evidence) impeachment pled damages free to award so it long as con- nolo lesser charge contendere fined its consideration the harms that manslaughter, agreement with the State’s flowed from the violation not to time served. Id. recommend He imprisonment attributable to his lawful released; time sentenced to served and manslaughter. conviction for Id. damages he then sued under 1983 “for contexts, In other has recog- Court arising charge from the murder con- procedural nized claims under 1983 even viction.” He Id. was awarded million $1.5 process when the denial due did in compensatory damages based on in injury. Brody Village result concrete v. incarceration; that verdict was over- Chester, (2d Port 345 F.3d 121 of pursuant turned the district to court Cir.2003) (“[Plaintiff] (Sotomayor, Judge) Heck. A trial in second resulted a verdict may declaratory still be to entitled relief favor, again in his but this time with a in damages proce- and nominal the a event $6,000. damages only award of process due proven, dural violation is even

The upheld First Circuit the district if the district court does not that find [he] court’s col- ... permit prevailed” decisions. To Olsen to have in the chal- would prejudicial hension law of the was not be- 171-72. Guilt a lesser not of crime is incon- right cause a defendant has no with the benefit from sistent existence of reasonable doubt a at earlier a court's erroneous view of the law. an trial for more serious crime. plea Poventud's later does some confirm However, neither is the sus- State entitled to liability criminal for the acts that occurred in predicated something tain a conviction on cab, Duopo's but it does not that he reaffirm proof beyond less than a reasonable doubt. indisputably guilty have would been found of right No defendant has the benefit from attempted murder and to at sentenced least law; every mistake of defendant —even years' imprisonment nine at 1998 trial. his guilty right one—has to benefit from Judge Livingston’s heavy State’s burden dissent at a criminal trial. also reveals an inability unwillingness distinguish be- ignore important 17. The dissents fact that argument an that tween Poventud is innocent guilty plea Poventud’s in was argument carry 2006 not to and an that the State did not charges same originally for which proving beyond he guilty its burden of him prison. Judge convicted and sentenced to argues why reasonable doubt. This is she Livingston’s reprisal Judge lengthy of Jacob’s presence that Poventud’s later-established at dissent, particular, ignores precludes that Poventud of the crime him scene from felony lawfully prove convicted of a alleging class E the State did not him year’s imprisonment. beyond and to one Dissenting sentenced a reasonable doubt. Dissenting Op. Judge Livingston, post, Judge post, of Op. Livingston, at at 165-66. 136 damages for the time he collect right “Because the proceeding).18

lenged agreement plea is to his process pursuant due ‘absolute’ served procedural (that depend upon is, impris- not year-long that it does term the sense for substantive asser- onment). Olsen, a claimant’s merits of at 55. With 189 F.3d importance to tions, because of mind, we find that these limitations pro- procedural due society organized §a claim. Poventud has stated 1983 observed, that the deni- we believe cess be alleges face, complaint On its Poventud’s should be procedural process due al of that are en- in his 1998 trial deficiеncies damages for without nominal actionable re- tirely proceedings independent injury.” Carey Piphus, v. of actual proof plea. Second lated to his 2006 See 247, 266, S.Ct. ¶¶ 1, at Complaint 115-39. The Amended (1978) (internal citations omit- L.Ed.2d the defendants complaint alleges that ted). Supreme recognized has Court unconstitutional conviction [his] “caused availability actions “dam- imprisonment by deliber- subsequent civil re- rights for the ages deprivation evidence, ately suppressing exculpatory un- allegedly from sulting the use material,’ lying and also known as Wolff, 418 procedures.” constitutional ¶ Id. misleading prosecutors.” 2. It is for the at of the undis- Poventud was aware Because “to jury court to determine district prior to exculpatory closed material his damages, any, plaintiff] if [such what plea impli- not have guilty plea, his could Brody Village Port Ches- entitled.” cated the constitutional violations issue (2d Cir.2005). ter, F.3d n. 8 Following of his con- in his trial. vacatur Is viction, judgment § 1983 Claim IV. Poventud’s a favorable Guilty Plea Consistent with invalid action would render plea-based judgment against subsequent, foregoing principles Several of the Smith, Poventud. 222 F.3d Cf. Brady- based circumscribe (like Heck, essentially a Brady Amaker First, § 1983 claim. his claim must relate Heck’s, case) prevents bar ensures not to to his 1998 conviction and alleging Brady Poventud from a violation Amaker, at conviction.19 179 F.3d 52. conviction; any with to how- regard valid Second, complaint had sounded Poventud’s ever, Amaker’s, unlike Poventud’s com- prosecution, rather than in a malicious not the conviction plaint challenge does claim, that claim procedural J3radi/-based to the continues to pursuant which State the would have been barred because of is view him a felon. The 2006 conviction a mali favorable termination element the conviction, DiBlasio, Brady “clean” untainted the prosecution cious tort. 102 F.3d convie- associated with the 1998 Finally, at 657. Poventud cannot seek violation Nothing analysis weighs imply 19. in this on whether 18. We should be understood not challeng- precluded Poventud is from not only damages. Poventud is to nominal entitled ing validity of his 2006 conviction a the below, principal explain As we the thrust of Brady § separate 1983 action. A claim can- damages regarding nominal is our comments challenge not a conviction obtained dis- here, after availability light we need that in of their material; Brady closure of the Poventud's stage proceedings the not consider at this relates to his 1998 con- claim therefore whether incarceration- of Poventud’s Having on the nar- decided the case viction. damages a based are Heck-barred. This is ground, we do the rower not reach broader the matter for the court to decide in district panel which the rested its decision. issue on first instance. Poventud, at 715 F.3d 60. necessarily imply as Poventud’s is invalidity tion. Just 1998 conviction Balisok, judgment,” purposes, for future Edwards v. expunged sentencing 641, 645, so, too, expunged is it L.Ed.2d for this (1997), logic applies only when the action. procedures in judgment resulted that has Second, states complaint Poventud’s Moreover, impugned. not been denial “the entirely distinct claims from malicious procedural process due should ac- be The prosecution. complaint never men- nominal damages tionable for without prosecution, allege tions malicious does proof injury.” Carey, of actual at prosecu- most of elements of malicious 266, 98 1042. The extent of Poven- termination), (including tion favorable damages stemming Brady tud’s from the heavily on the defendants’ failure focuses violation that do not call into question the obligations. to their disclosure adhere validity of his 2006 guilty plea is a fact- Amended Unlike Complaint. See Second specific question should be addressed claim, malicious Po- prosecution DiBlasio’s However, first the district court.21 claim compatible ventud’s is with of a cause existence of action clear. validity subsequent of his conviction.20 allocution acknowledged Poventud’s complaint dam seeks presence crime, scene of the which ages his time in prison, for but excludes was with inconsistent his alibi defense pursuant the time he served to his However, trial. this does not defeat unchallenged guilty plea. Second See viability of his claim. explained As ¶ Complaint Amended 1. not de We need above, Brady require does not inno- actual “ damages might cide what be available for cence, and even man ‘[a] is entitled ” Poventud, but Supreme we note that the Buchalter, People to a fair trial.’ “recognized claim Court has (Leh- 181, 225, (1942) N.Y. 45 N.E.2d 225 wrong using procedures,” where even man, Judge, concurring). Brady, In Chief plaintiff could not collect for court’s Maryland the Court held that violated Heck, “reaching wrong result.” constitutional with- rights by defendant’s 482-83, 114 Although U.S. at S.Ct. 2364. holding evidence relevant to his sentenc- circumstances, under some “chal ing, despite even the fact “that in the nothing lenge procedures suppressed could such as confession be could have reduced Assuming arguendo that Poventud’s claims dissents' treatment of causation will regularly startle who toil in world of prosecution, those did sound malicious these (which DiBlasio, tort law. The Restatement Third ex- would claims be barred. 102 F.3d pressly says proximate it will call cause Specifically, at 659. claims that undisclosed liability”) “scope quite is mat- of clear on the innocence,” evidence included “evidence of court, question "Duty is a law ter: of for the ¶ 128, suggest Complaint Amended do Second scope liability, although very §see while However, prosecution a malicious claim. matter, an evaluative is treated as a much complaint alleged while Heck's destruction question fact for the factfinder." Restate- exculpatory which was in "evidence nature § 29 Phys. (Third) ment of Torts: & Emot. Harm innocence,” proved have and could [his] (2010). here, Ultimately, problem as in Heck, (quota- U.S. at 512 114 S.Ct. 2364 dissents, much of the is the confu- dissents’ omitted), complaint tion marks Poventud’s may appropri- sion between factors that be less with his innocence and instead concerned winning ate—and even Poven- —defenses identifying on "evidence that wit- focuses an claims, § instead tud's factors that unreliable, impeaching ness evidence whole would lead to dismissal of the credibility significant prosecution wit- violating § 1983 ab initio for the doc- action ¶ Complaint Second nesses.” Amended 128. Humphrey. trine of Heck victory. Poven- appeal not to mur- elected offense below Brady’s appellant vacated it conviction was because to his tud’s or related degree” in the first der infirmity. on a constitutional rested U.S. at or innocence. guilt omitted). de- previously the information Armed with (internal marks quotation from him, accepted an offer nied Poventud plaintiff “a requires Heck He to a offense. plead lesser the State conviction or sentence prove that the must from those who vio- now seeks to recover by a state ... invalid has been declared He does not right to a fair trial. lated his to make such determi- authorized tribunal (nor plea of his legitimacy contest 486-87, nation,” 512 U.S. inter alia. he). His claim is restricted to could case, Poventud’s In this S.Ct. and dur- police officers before acts of People v. has been. challenged conviction victory in in 1998. Poventud’s ing his trial Poventud, at 608. Heck’s N.Y.S.2d court, jury securing vacatur of his state un- finality would not be core concern conviction, claim and gave life to his trial trial; Po- by Poventud’s success dercut activity that it from the criminal separated unchal- on an premised claim is ventud’s 6, 1997. in the Bronx on March place took in state court.22 lenged finding made entire claimed Had Poventud at trial —far from Poventud to win Were malice, was one borne of process criminal legal status of conclusion—the foregone But be different. then our decision would pre- remain plea would his 2006 are circumscribed to the mis- his claims No element of his served. jury police prior to his deeds of prove his ab- requires claim nothing more. crime; if it of the from the scene sence and the case Judgment is VACATED did, Heck-barred. Po- his claim be would fur- to the district court for REMANDED only at trial would mean ventud’s success opin- with this proceedings ther consistent product that his 1998 conviction was ion. violation; ease, constitutional already court has reached New York State LYNCH, Judge, E. Circuit GERARD vacated the convic- this determination and concurring: tion as a result. See id. join Judge Wesley’s thorough fully

I separately I write Conclusion opinion for Court. simple why terms the Court’s explain process. claim is one of He govern- only is consistent not with decision York that members of the New asserts law, assump- but also with the basic ing willfully City Department Police withheld jurisprudence. our tions of ques- into exculpatory that called is wheth- question before Court testimony tion the witness Humphrey, Heck v. the crime. Po- er the rule of place him at the scene of 477, 486-87, 114 129 L.Ed.2d prison are not the stuff of ventud’s claims (1994), prohibits a criminal de- proven has which self-absorption; idleness or he obtaining damages from the State fendant his claims state court and sistent, courts, (1) judg- why clear and it is not third things the New York As stand in ment, reaffirming the existence of a successfully proved a viola- Poventud trial, trial, suddenly would violation at the first which the State elected tion in his first way (2) in a pled guilty impugn the second conviction appeal; and not to Poventud outstanding judgment based on the same attempted robbery degree. We in the third logically does not. judgments are con- conviction believe these two wrongful prosecution, impris- conviction or bery of a cabdriver named Duopo, Younis until onment and unless the conviction he and sentenced to twenty years ten to overturned, complains of has been pre- imprisonment.2 It is that conviction that plaintiff vents the Marcos from contends, Poventud and that the state for, suing alleges, found, defendants as he court profoundly unfair. obtaining a him against conviction that led The principal evidence against Poventud years his incarceration for almost nine testimony was the of the victim. It does by deliberately suppressing evidence disrespect no Duopo Mr. to note that a cast doubt on the critical identification tes- single-witness identification of this sort is timony of the victim.1 The short answer is hardly proof unassailable of Poventud’s not, it does because the judg- criminal guilt. Well-known scientific gives against ment him was later vacated us sound reasons to believe that eyewit- it, state court that entered because the generally, nesses and violent-crime victims court found that police had indeed specifically, always are not reliable observ- rendered his trial unfair by suppressing reporters. ers or The trauma highly of a exculpatory evidence. The ar- defendants frightening and stressful event and subse- however, gue, that we should nevertheless quent experiences, life including the con- forbid Poventud from seeking damages for founding effects of potentially suggestive that wrongful sentence, conviction and be- police investigatory procedures, often dis- later, cause Poventud after the full facts tort the victim’s recollection.3 But it sides, were known to both pled guilty ato disrespect would Mr. Duopo to use our offense, related but lesser and was sen- knowledge regarding fallibility of hu- year tenced to imprisonment. one memory man disqualify testimony require the dismissal of all charges

I against person he, victim, the crime The fundamental complicating fact about positively has identified as his assailant. this case is that Marcos Poventud has Thus, been although we cannot be certain that subject adjudicate two efforts to Duopo’s correct, Mr. identification was him, charges against with conflicting re- permits law him testify and the defense First, sults. he was tried and him, convicted of to cross-examine jurors, and allows extremely crimes, serious including acting at- as the conscience of community, murder, tempted stemming from the rob- to decide whether the information before appeal grant 1.Because this is an from a 2. Poventud was convicted on four counts: at- summary judgment tempted dismissing degree, murder in the Poventud's second at- tempted robbery degree, in the complaint, first assault in civil the evidence must be con- degree, possession first and criminal of a light strued in the most favorable to him weapon. inferences, drawing all reasonable and resolv- ing ambiguities all in his favor. Colavito v. Young Conway, 3. See 698 F.3d 88-89 Network, Organ NY. Donor 438 F.3d (2d Cir.2012) (collecting regarding studies (2d Cir.2006). case, simply In this that is not unreliability eyewitness testimony), cert. legal requirement; findings of the state - denied, -, post-conviction court on Poventud’s motion to (2013); L.Ed.2d generally see State v. provide vacate strong his conviction reason Henderson, (2011) (reviewing 208 N.J. 208 allegations to believe that these are in fact research, laboratory various social science ex- true. all When of the evidence is heard at a periments, and scientific evidence demon- course, jury civil may may strating array that "an of variables can affect agree with view Poventud's of the evidence. memory and dilute and lead to misidentifica- tions"). Poventud, infor- the additional beyond them identified persuade them is sufficient created a reasonable mation would have guilt. defendant’s of the doubt a reasonable however, any Surely, reasonable fairly apprised of doubt. jury, of the It is the role known, highly this evidence rele- juror would find weigh then the facts vant, damaging to the significantly of the evidence strengths and weaknesses that reliability. For rea- inherent identification’s them, bearing in mind the before son, crystal has made ability Supreme Court ob- on the victim’s limitations that such evidence must be disclosed remember, he saw. clear serve, report what Brady Maryland, to the defense. See first after jury at Poventud’s The 10 L.Ed.2d account and Poven- 373 U.S. hearing the victim’s (1963). defense, beyond persuaded was tud’s alibi guilt. of his

a reasonable doubt up facts so question, covering Without a defendant damaging against to the case relying jury’s on the con- justice of The This legal rights. the defendant’s clusion, however, depends critically on the violates of the just is not a matter of the rules jury knew all of the that the assumption that By failing to disclose evidence reliability of Mr. road. facts about relevant out, princi- on the significant It turned how- would cast doubt Duopo’s identification. guilt, police ever, pal evidence of Poventud’s jury that the had been deceived—not something fabricating tantamount by the authorities who did Duopo, Mr. but guilt: they deceived the about how false evidence important evidence up covered guilt evidence of jury thinking into that the identify Poventud. he came to than it this mis- stronger was. When also convicted of a codefendant When light, came to the state court did conduct trial due to a robbery secured a new law, justice, decency common what the error, fortuitously came legal required, and vacated Poventud’s convic- initial trial had not light that Poventud’s point, presumption tion. At that rules had not been fol- been fair. The Poventud no innocence was restored. lowed, reliable. and the result was not longer legally guilty of the four offenses of technicality; no mere it The breach was conviction, longer pun- and could no be truth-seeking to the function directly went time, however, By ished. point trial. The entire of the first of the nearly years in already had served nine reliability trial of Mr. was to determine crimes of prison punishment which testimony, by fairly putting before Duopo’s presumed innocent. again he was then reasonably jury that would facts stage ac- was now set for a second trial his identification was bear on whether charges. Though pre- eventually original now curate. The state court would innocent, determine, however, Poventud still faced the police offi- sumed deliberately Duopo’s that he was Mr. assail- investigating the ease had accusation cers ant, again fairly and he could be tried Duopo hidden the fact that Mr. had earlier — time, to the jury with all the facts known Perhaps identified someone else. perhaps, though might it seem jury. found And that knew that fact would still have unlikely, jury, exposed a new to all the sufficiently ac- Duopo’s Mr. identification facts, verdict, might still have convicted him. At per- curate to return a however, fact, point, aspect another of our together taken with the which haps know, system play, came into the institution of it was not until the they did prosecution plea bargaining. that the had shown him Neither police fourth time future, predict nor the defense can picture Duopo finally that Mr. effect, likely both were uncertain as to the out- if accepted he the plea bargain, he prosecutors, come of a fair trial. The no would be prison. released from Poventud faith, good they doubt in believed that had thus faced stark choice: he could contin- man, right and that a trial should fight, risking ue to the possibility that his result in another conviction. But up sentence of twenty years to in prison acquittal chances of obviously high. were would be against restored hope aof Even assuming Duopo that Mr. were alive complete Or, acquittal. he could accept testify, and well and available to and would offer, plead guilty, go imme- free again identify assailant, Poventud as his diately. accepted the offer: he nearly passed a decade had since the pled guilty attempted to robbery in the crime; memory clear, his would be less third degree, was sentenced to a fraction ability and his persuasively identify any- of the time he had already spent in prison, considerably one would be less certain. and walked out of the courthouse a free Moreover, jury assessing testimony his man.4 know, would now jury as the first had been recapitulate To the results of the two prevented knowing, from Duopo Mr. trials of Marcos Poventud: at the first had first identified someone everyone who proceeding, corrupted by police miscon- agreed was not in involved the crime. With duct, jury ignorant that was of the truth prosecution’s case significantly weak- witness, about the identification convicted ened, might Poventud’s alibi look much him of attempted murder and three other more persuasive jury. to the leading years crimes to nine imprison- Poventud, however, could be no more ten-to-twenty sentence; ment on a year confident than prosecutors of the out- second, he was plea convicted on his come of a assuming new trial. Even guilty third-degree attempted robbery innocent, he knew himself to be he also and was sentenced to year. one knew that he had been convicted once before, already and he had spent almost Now damages Poventud seeks from years prison. Indeed, nine he remained who, effect, those fabricated evidence of prisoner, because he lacked funds pay guilt by suppressing evidence that Moreover, his bail. prosecutors could shaken, would have perhaps fatally, the appeal conviction, the vacatur of his testimony identification used to convict they successfully attempt resisted his him. The defendants seek to have his suit have his bail reduced so that he could dismissed, based on the same rule that liberty remain at facing while a second prevented would have him suing from trial. while his initial conviction stood unchal- In circumstances, these prosecutors lenged, arguing fairly that a obtained con- (albeit offered Poventud an by guilty alternative to trial: if viction plea to a lesser pled guilty offense, he to a lesser they offense with sharply consequences) limited agree would to a year prevents sentence of one seeking a suit damages for the prison he long had since wrongful served. In conduct that resulted his earli- —time plea legally guilty plea valid. A product deception as the of unfair fully defendant who is aware prosecutors of the conse- claimed that the authori- —he quences pleading guilty may enter a falsely they bind- ties had ap- told him that would ing plea guilty, notwithstanding conviction, powerful peal the vacatur of his even point, inducements to though they do so. At one already Poven- had decided not to. He sought motion, argue guilty plea tud that his later withdrew that so we must treat taken, lawfully by moving plea legally binding. to withdraw his second, fair conviction, again after a serious, same conviction now-vacated

er, more risks; to take those they chose not drastically more serious resulting with its have been or not Poventud would whether punishments. trial, he too elected at a second acquitted majority me, it does to a as It seems to to take his chances. Our best—howev- not Court, legal that the judges of the result of imperfect approximation er — Judge Wesley’s simple. As answer is from a fair trial is that have come would demonstrates, Supreme opinion conviction plea bargain: the result of convic- holding legally that a valid Court’s count, much serious single, on a less damages recover a suit “to prevents tion year prison. in only sentence or conviction allegedly for unconstitutional accept binding must the outcome only until We explicitly applies imprisonment” that proceedings: criminal Poven- re- of these or sentence has been that “conviction tud, much an suffered a unfair expunged by exec- appeal, versed on direct and punishment more serious conviction order, by a state declared invalid utive proceeding, than he received from a fair make such determi- tribunal authorized to By the facts known. the same nation, by a with all question called into federal or token, however, accept Poventud must cor- of a writ of habeas court’s issuance 486-87, legal his Heck, process: other outcome of pus.” added). conviction, by plea guilty, of of the offense Poventud seeks (emphasis degree, attempted robbery of the third his initial conviction damages recover year imprison- and his sentence one lengthy impris- that of his portion and for difficulty his Irrespective of the to that con- ment. onment that was attributable legally plead guilty, choice to Poventud longer; exists no viction. That conviction invalid, may of that He therefore guilty it offense. court and we a state declared wrongly prosecuted that he legal pro- argue not was accept the outcome of must charged; he cannot claim that he was him of those or that holds not cess crime, unfairly convicted of a or that he his suit. offenses. Heck thus does not bar year in wrongly required to serve a equal- It to me that the answer is seems that certainly may argue But he prison. ly standpoint simple from the simple initial, his more serious conviction was that Po- justice. The state court decided wrong, wrongful, and that as result tried, that the fairly not ventud was corrupted pro- deliberately unfair and deliberately suppressed evidence police many to serve addi- cesses he was forced in order to make the helpful to the defense years prison.5 tional it appear stronger him than against case includ- was. His conviction of four crimes II murder, and sentence to 10 ing attempted sense, moral There is thus a certain common years legal is a prison justice that Poventud can deliberately rough a trial to the idea nullity, the result of between damages not seek for the difference corrupted by police. Whether or pro- the outcomes of his first and second might successfully ap- have prosecutors cesses, the first conducted outside pealed judgment, or obtained lawsuit, complaint whether points, Judge but about 5. On these I believe that Chin’s go beyond sought arguments that entirely has to make position is consistent with accordingly majority's permits, and what the Court Court. The difference between portion complaint must Judge whether some of that position and is not about what Chin’s argue may may in his civil be dismissed. rules and the within second them. It is justice weaknesses of our criminal system; ask, however, reasonable to rather, where is the it is a function of the scope limited truth in all of this. I think fair- of human knowledge. Our legal system person agree minded will the trial truth, searches for the but humankind led Poventud’s initial conviction lacks capacity to obtain absolute deeply intentionally corrupted, knowledge of the truth past about events. —and — and that its result is unreliable. But Po- Cognizant limitations, of our we neverthe- (al- admitted, ventud has now under oath less must act on the basis of the best deeply questionable beit under circum- end, information can glean. we To that we stances) that he was indeed involved have system devised a proof, trials and robbery. Are we to award in damages, by which attempt we develop objective effect, for the fact that Poventud lost the in order to make the judg- best opportunity acquitted to be of a crime that ments we can about the facts. As much as he may very well have committed because we strive to improve system, that long so the rules were not followed? human, as remain we our legal system will imperfect. remain Mistakes are inevit-

I believe that we must. As a matter of able. The best we can do is to law, follow our in prevent order to the horror of procedures, imperfect as we they know convicting an person, innocent we insist are, accept upon and act that results charged someone with a may crime they produce. only be punished convicted and if the state prove can guilt by his or her a very de- At the conclusion of Poventud’s first tri- manding proof, beyond standard of a rea- al, on the assumption then-valid that the sonable doubt. If a defendant cannot be jury had been able to make a full and fair proven evidence, thus howev- —if judgment strength of the of the evidence suggestive be, er of guilt may it does not him, against society justified was in pun- rise to a sufficient level of strength, ishing might Poventud. Some argue well defendant must be legally declared not that we could and should devise better guilty of charged. the crime And certain- procedures testing identification evi- ly, if a defendant is found legally guilty by dence, but we must act under the rules we jury deprived has been of the full have been agree present, able to on at story by government misconduct, that con- rules, under those the evidence strong was viction is void. enough legal for a finding guilt. But do we not now know that Poventud It does not jury’s follow from the verdict guilty, fact, as a matter of because of his that, God, in eye of an omniscient plea? I submit that we know no such actually guilty. know, Poventud was We thing. Poventud is legally guilty of the sorrow, to our that there remained some crimes he was by convicted of a putatively Duopo risk that Mr. was mistaken and that fair process. guilt That is as much a he wrong identified the man. If the trial legal matter of convention legal as is his fair, however, it duty was the innocence of the more charges serious impose punishment. court to If at some which he has fairly never been convicted. date, overpowering later proof of his inno-

No one who was not there will ever cence emerge, were to we would vacate his know for certain conviction, whether Marcos Poven- society and a decent would seek participated tud robbery him, compensate Younis necessarily some Duopo on March ignorance 1997. Our inadequate way, tragic for the error. But on that score fair, is not a function if the trial was and the witnesses ability But the of such jury.

honest, have done Poventud unbiased no one would had to find the “real” truth second trial involved—the everyone If legal wrong. police mis- surely compromised. been victim, prosecutor, police, a fair trial only prevented had not conduct honorably just- jury judge —acted place, given lapse but in the first attrib- mistake would be ly, any resulting discover- time before that misconduct was imperfection. At to human simply utable ed, longer possible replicate no it was trial, then, Poventud first the end of his Almost nine original conditions. those four offenses and was legally guilty of later, tes- Duopo’s Mr. identification years or not actual justly punished, whether only by undermined not timony would be those crimes. So fact he had committed evidence, impeaching newly discovered unim- of his trial stood long as the result To that passage sheer of time. but conviction Poventud’s four-count paired, own, of (through no fault of his extent years’ imprison- to 20 and sentence of 10 course), acquittal chances of and, correct, as a matter legally ment was why unfairly That is improved. were law, suing was barred from were moved to offer their prosecutors wrong did him act- anyone he believed proposal, by which Poventud compromise ing dishonorably process within the immediate freedom ex- could obtain led to his conviction. guilt an of to a lesser change for admission consequences could not legal Those crime. however, stand, it clear that once became may justice criminal Critics of American fair, that the rules had the trial was not very plea bargain- of decry the existence followed, that some of the author- not been in arrangements, ing. permit But we such job present was to collect and ities whose that, theory if both sides large part on the honor- fairly the evidence had not behaved like- reasonably aware of the risks and are ably, assumptions that even within the of trial, strength ly outcomes of a and system result was already our fallible the defendant, a com- against of the case the verdict, jury’s not reliable. Just as the may proce- outcome well be both promise erroneously thought premised on what we substantively just. But durally fair and trial, it true that legally was a fair made general merits and demerits whatever or not he guilty, Poventud was whether system, corrupted a it too was of such crimes, actually committed the vaca- had Poven- wrong initial that undermined unfairly conviction re- tur of the obtained prosecutor’s trial. as the tud’s first Just in- legal presumption of stored Poventud’s time, passage of case was weakened nocence, but not mean that Poventud did ability to make a fair so was Poventud’s newly did not commit the crime. The alternatives. The choice of choice between police discovered evidence of misconduct exchange for an admission freedom innocence; it prove does not Poventud’s man, easy guilty for a but even would be only likely makes it somewhat less that he pressed to an innocent one would be hard manipulation guilty. Perhaps police is offer. A hero prosecution’s decline the led to an innocent man’s of the evidence that he might bargain resist the and insist conviction, unfairly perhaps but it falsely accept ignominy of would not strengthened against the case the real rob- reminded of John admitting guilt. One is ber. Proctor, falsely accused of witchcraft Crucible, who play then set for a Arthur Miller’s principle, stage In an second, trial, gallows accept rather than goes all of the evidence to the fairer with new, go him free in ex- that would let to a offer presented available now to be best, only provisional can change produce truth, confession. It is diffi- false truth, a legally accepted cult to of mere mor- an expect approximation such heroism Proctor, based on a historical of the truth though good enough tals. is to act character, upon, figure, though is after all a fictional and known to be imperfect. I understand, signed dissenters, even he false confession with the agree first having before of heart. Poven- that a defendant change legal guilt cannot disavow ordinary tud did I most hu- for an suspect what offense to which he has lawfully situation, man his beings pled guilty, would do in even no how much might matter he claim, they if were innocent. not an impartial whether or believe, might observer that his choice to however, system, Within the rules of our plead guilty was made under circum- having pled crime guilty to a connected to stances under which person an innocent legally is robbery, guilty might plea. Poventud, well enter such We, he, that crime. must accept Ias have as noted and the Court con- fair, new, putatively outcome of pro- cludes, must accept consequences must, ceeding. we Assuming, as that Po- plea. legally taken, guilty plea ventud’s Po- guilty attempted ventud is now legally But the appear dissenters to insist that robbery degree, fairly the third and was guilty plea represents just a legal punished by year imprisonment. one truth, but an one. According existential But certainty, we still do not know with dissenters, plea requires us any better than wе knew before his first to treat him not if he were actually whether Poventud robbed the lesser he legally offense of which Mr. Duopo. open A confession court is guilty, justly subjected to the relative- ordinarily powerful guilt, but ly accepted, short sentence that he but also we know that false confessions have been as if he fairly had been convicted of the far by obtained much pressures imposing less crimes, fairly subjected more serious than subject- those to which was Poventud drastically stringent sentence, to the more ed.6 that resulted when the authorities cheated The legal process, suppressed as the dissenters cor- that might have note, rectly acquittal.7 is a search for truth. The led to his rule That version of “the truth,” however, that police here is one basis in violated that is has no law: Po- designed likely pled guilty make it more that the ventud never to those more offenses, truth will But the truth be found. is elu- serious and he was found sive, deliberately and can never known with of them be certain- after a and tor- ty. legal procedures, tiously process. Our even at their flawed Poventud seeks to See, Wise, 152-53; Jacobs, e.g., People Op. Judge post, 6. at Misc.2d see also (N.Y.Sup.Ct.N.Y.Coun- 752 N.Y.S.2d Dissenting Op. Livingston, post, Judge at 2002) ty (vacating convictions of Central Park plea 167-68. But is no Poventud's more “sol- Five); generally see Steven A Drizin & Rich- emn,” self-serving and no less than his sworn Leo, ard A. The False Problem Confessions testimony Judge Livingston at which World, in the Post-PNA 82 N.C. L.Rev. perjurious. Id. characterizes as at 165-66. In (2004) (analyzing cases in which "indis- case, oath; each under in each putably innocent individuals confessed to case, say he said what was in his interest to at commit”). they crimes did not it respect, the time. With seems to me that it “pick[ing] is the are dissenters who Judges Livingston Jacobs and both would choosfing],” which of by id. Poventud’s plea exalt Poventud’s allocution character- izing Dissenting they prefer it as a believe. "solemn admission.” statements fully a truth that cannot they distorted ration between we because the defendants

sue know, judgments reached inevi- and obtained a and the the truth for the search human fairly tably processes. As the flawed dis- cannot stand. that conviction note, accept plea would not correctly very purpose senters dissenters truth, merely legal but as an absolute defendants violated is that the of the rules that from ac- miscarriage[s] of truth frees defendants that [such] to “ensure truth- Dissenting countability having distorted the occur.” See justice do[] Jacobs, seeking process to his detriment. The post, Op. Judge correctly all of the aspects Court treats system must legal To hold specific legal judgments outcome as with fairly generates it by the results stand very legal consequences, but particular espouse not to rules is according to its ar- nothing more. Poventud now seeks to justice.” Id. at 151. theory of “sporting gue jury to a that he should be awarded results, by fair reached seek accurate We damages for the difference between the can, and do the best we We procedures. consequences legally that resulted from of the the results. The result we live with process conducted and those he was forced is that Poventud is le- legal process here unfair, to suffer as a result of an distorted only of a lesser offense and gally guilty one, persons from the he claims are re- punishment, and that he worthy of a lesser for the obstruction of the truth- sponsible drastically more serious conse- suffered seeking process. correctly per- The Court wrongdo- of deliberate quences as a result opportunity mits him the to make that “sporting theory” It is no more ing. argument. part society stand insist that found Po- judgment criminal resulting LOHIER, JR., RAYMOND J. Circuit portion of his not liable for ventud concurring: Judge, unfairly obtained punishment agree majority opinion. I with the Be- any right argue deny than it him the nature of Poventud’s cause claims lies of the crime to which that he is innocent I write dispute, at the heart of our banc presented with an pled guilty he when separately identify to address how we re- only a hero could perhaps offer that dissenting opin- those claims and how the deeply It to me inconsistent fuse. seems ions misconstrue them. (rightly my for the to insist dissenters view) (the that Poventud is Complaint and the Court’s The Second Amended plea, by legal guilty fact of his “Complaint”) properly bound the alone frames our that he despite very possibility the real understanding of Poventud’s claims. We factually innocent not- might have been in ignore the extraneous assertions Poven then to withstanding plea, summary but refuse judgment tud’s and other briefs that Poventud was accept legal determining to fact in what claims he asserted. Moreover, unfairly subjected greater punishment to Complaint we construe the possibility Poventud, equally because of the real most light favorable factually might have not- non-moving party, he been and draw all inferences inability withstanding prosecution’s ambiguities all in his favor. and resolve Commc’ns, Inc., him crimes for which greater convict See Gould Winstar (2d Cir.2012). 148, 157-58 that punishment. he suffered F.3d dissenting opinions view the Com- system To stand the results that our littered with assertions of Poven- produces simply accept plaint the limitations as result, they tud’s actual innocence. As a knowledge, sepa- of our and the inevitable Complaint ultimately construe the as alleg- innocence. But reading such a again ne- ing actual innocence as the basis for Po- glects duty our to construe the Complaint claim, Brady they ventud’s conclude light in the most favorable to Poventud. “ claim in’ pros- Gould, ‘sounds malicious at F.3d 157-58. As a textual Jacobs, Dissenting Op. Judge matter, ecution.” phrase “there is evidence of post, problems 162. There are two with innocence” synonymous is not with the First, reading. their even if the Complaint Rather, claim “I am innocent.” the more had contained a prosecution malicious natural reading of Poventud’s reference to claim, the dismissal of that claim on sum- “evidence of simply innocence” is that the mary judgment require would not the dis- withheld evidence was Brady material for claim, Brady missal of Poventud’s which words, purposes other it would —in way depends no on a showing of actual have tended to lead to a verdict of not Second, innocence. reading Complaint guilty at trial.

broadly to claim prosecution malicious Confined allegations in the Com- actual neglects innocence our appellate ob- plaint fairly and read narrowly, ligation to read Complaint in a man- they be, should clearly Poventud’s claims here, narrowly favors rather ner — —that concern “the police misdeeds of the prior maligns than position. Poventud’s jury to his nothing Maj. more.”

Indeed, any reading under of the Com- ante, Op., read, they 138. So neither plaint I uncovering have trouble a claim of sound in prosecution malicious pro- nor actual allegations innocence. The concern- claim Poventud’s actual innocence.

ing claim are contained To ensure that the relevant record is in paragraphs Complaint 115 to 125 of the I straight, attach the Complaint in its en- about, and state that the officers “lied and tirety appendix. as an otherwise failed to disclose the ma- See, terial.” e.g., Second Am. Compl. CHIN, DENNY Circuit Judge. ¶ Paragraph alleges that the offi- respectfully I in part concur and dissent cers’ operated deprive “conduct Plaintiff part. I believe the district court cor- of his ... rights timely disclosure of all rectly held that plaintiff-appellant Marcos material evidence favorable to the defense” Poventud’s claims were based on factual “and to punished not be convicted or based allegations that are inconsistent with his upon government’s knowing use of 2006 conviction for attempted robbery. I ¶ false or misleading testimony.” Id. however, agree, judgment that the should Nowhere these paragraphs does Poven- be vacated and the ease remanded for allege tud actually he was innocent. further proceedings to the extent that Po- view, In urging contrary my dissenting ventud’s claims do not imply invalidity colleagues point to paragraph 128. That of his 2006 conviction. paragraph states that the undisclosed ma- “included, to, terial but was not limited I innocence, evidence of evidence that an identifying unreliable, witness question was and evi- presented is whether Po- dence impeaching credibility the signifi- Brady Maryland, ventud’s claims under ¶ prosecution cant 83, 87, witnesses.” Id. I 83 S.Ct. 10 L.Ed.2d grant might (1963), that one be able para- to read Supreme are barred graph broadly 128 as possible as and con- in Humphrey, Court’s decision Heck v. 477, 486-87, clude that it a constitutes claim of actual U.S. 114 S.Ct. men, (1994). one of whom resembled requires the other Heck

L.Ed.2d provided description of the shooter to consider: district court two Duopo, approximately were arrested in of the judgment favor a [WJhether general vicinity in weeks later the same in- necessarily imply the plaintiff would livery cab with same sentence; robbing a if conviction or validity of his used to shoot Duo- weapon that had been would, must be dis- complaint it ¶¶ 42-44). (Id. at least alleges, It po. can demon- plaintiff missed unless not at the implicitly, or sentence that Poventud was the conviction strate that he at a robbery But if the because already been invalidated. scene has plain- playing games that the video neighbor’s apartment determines court district ¶ (Id. 40). successful, action, not if will occurred. even when the crime tiffs invalidity out- demonstrate paint picture All of these factual claims judgment against the standing criminal innocence, necessarily they and thus be allowed to the action should plaintiff, imply invalidity of Poventud’s of some other proceed, in the absence Indeed, Complaint charac- conviction. to the suit. bar exculpatory evi- purportedly terizes the (footnotes 512 U.S. at (id. of innocence” as “evidence dence omitted). majority The en banc concludes ¶ 128), argued, opposi- in his Poventud’s claims. that Heck does not bar summary judgment mo- tion to defendants’ I disagree, part. in (PL’s below, that he “is innocent.” tion (the Complaint The Second Amended J., to Mot. for Summ. at Opp’n Mem. only one cause of ac “Complaint”) asserts (Dkt. 68) (emphasis original); see No. defendants, for against tion the individual to main- (plaintiff also id. “could continue and a fair trial. process denial of due [o]r, ... he could admit tain his innocence 52). 115-25) (Dkt. No. That one (Compl.¶¶ had not committed and be crime he however, action, is based on sev cause of ”) immediately (emphasis released — claims, including eral factual Poventud’s original)).1 police contentions that failed to dis innocent, not, however, Poventud is (Younis Duopo) close that the victim iden pled conviction makes clear. He (Francisco) tified Poventud’s brother robbery in the third attempted up thereafter and lied about this covered degree, and admitted to a state court evidence. place at judge present that he was But there are other factual claims robbery attempted time of the and that he Complaint Complaint alleges, as well. The personal from another property to steal implicitly, that one of the detec- least i.e., force, by using weapon. person Francisco’s wallet in the planted tives Hence, planted, Duopo wallet was ¶¶ (Id. 13-17, livery backseat of the cab. Poventud, correctly identified and Poven- 36-38). that after incor- alleges Duopo It neighbor’s apartment tud was not Francisco, rectly identified the detectives playing games. video targeted manipulated Duopo Poventud and (Id. court, course, decided the falsely identifying into Poventud. The district ¶¶ 45-46). it, 22-33, recognized before and it It asserts that three case establish, innocent”)), appeal, argues he is he On while Poventud that his need to argue dependent continued to that he is in fact claims are not on his innocence has id., ("Poventud Br., (“he (see, (see e.g., had Appellant En Banc at 24 does innocent at 5 claim, assert, not, years.”)). nine purpose for the of his or sworn his innocence for claims jury were centered on to a now that had he known about Duopo’s his claim of innocence. It concluded— misidentification of Francisco in correctly, my view—that he would have been persuade Poventud’s fac- able to jury then that he was present tual into at question assertions called the va- the robbery he was in fact lidity of there. his 2006 conviction. See Poventud —when York, City v. New No. 07-civ- Accordingly, I believe the district court 3998(DAB), 2012 WL at *3 correctly claims, held that Poventud’s (S.D.N.Y. 2012). Hence, Mar. I do not above, the extent discussed call ques- into erred, believe that the district court ‍​​​‌​​‌‌‌‌‌​​​​​​​‌​​​​‌‌​‌‌‌‌​​‌​​‌​‌‌​‌​‌‌​​‌‌‍as the validity tion the of his 2006 conviction. majority en bane suggests, in measuring Poventud’s admissions in guilty plea his II against the factual assertions of his Brady (See 134). ante, Maj. claim. Op., I agree with the majority that there are claims the case that may pur- The majority en banc observes that sue that do not call question into the va- “Brady innocence, does not require actual lidity of his 2006 conviction. Where a ‘ and even man guilty “[a] is entitled to a conviction is set aside because of a Brady ’” ante, (Maj. fair trial.” Op., (quot- violation, a subsequent guilty plea will not Buchalter, ing 181, 225, People v. 289 N.Y. necessarily all foreclose claims for dam- (1942) (Lehman, 45 N.E.2d 225 Chief ages, may for there be claims that do not Judge, concurring))). I disagree. do not impugn integrity guilty plea.2 Moreover, agree I that Poventud was enti- situation, One imagine could such a for ex- tled to the exculpatory disclosure of evi- ample, police where officers withheld ex- dence, regardless of guilty whether he was culpatory presence information about the or innocent. He was entitled to know that of a weapon at the scene in a burglary Duopo Francisco, had identified even case. If the defendant is convicted of bur- though Francisco undeniably glary in degree the second and later dis- trouble, wrong however, man. I have with covers that police failed to disclose ex- the notion that Poventud can jury ask a culpatory evidence about the presence of damages now argument based on the weapon, pur- defendant could still right he had the try persuade sue a claim based on the jury in present— he was not violation if even the conviction is vacated guilty when he admitted in plea that he subsequently and he pleads guilty to bur- present participated in the rob- glary in degree. the third a claim Such Indeed, bery. I accept proposi- do not question would not call into validity tion that Poventud be argue should able to plea, as the defendant could violation, 2. To explained, establish a claimant Court has the "touchstone of mate- must show that “[t]he evidence at issue [is] riality probability’ is a 'reasonable of a differ- accused, favorable to the either because it is result, adjective important. ent and the is exculpatory, impeaching; or because it question is not whether the defendant suppressed by [the] evidence must have been likely would more than not have received a State, willfully inadvertently; either evidence, different verdict with the but wheth- prejudice must have ensued.” DiSimone er in its absence he received a fair (2d Phillips, Cir.2006) v. 461 F.3d resulting understood aas trial in a verdict Greene, (quoting Strickler v. worthy Kyles Whitley, of confidence.” 281-82, 119 S.Ct. 144 L.Ed.2d 286 419, 434, (1999)). 131 L.Ed.2d prejudice plaintiff To establish (1995). materiality. Supreme must show As the (Turkin) prosecutor and defense weapon original was not his and that argue trial. by Brady attorneys violation at time injured that he was 103-06). more serious Poventud also con (Compl.¶¶ of the as he was convicted . degree. Turkin informed that in the second tends that Shockett burglary offense of Brady mate Umlauft never disclosed conviction Poventud’s 2006 Although rial, did not share Turkin’s but Shockett as to his innocence arguments forecloses En (Appellant account with the defense. crime, the scene of the at presence or his 18-19). Br., Accordingly, Banc alleged that defendants’ may he still show opposed State Poventud’s motion sub harm, him as he asserts actions caused mitting false affidavit and re Umlauft’s not call into that do of claims number testimony at an lied on Umlauft’s false validity guilty plea. of his question the 107-10). evidentiary hearing. (Compl.¶¶ alleges, example, for Complaint The Moreover, that, argues Poventud based Duopo’s misidentifi- “knew defendants lies, on Umlauft’s continued State highly Poventud was of Francisco cation appeal of the trial court’s filed a notice of Attorney’s Bronx District relevant to the finding Brady that a violation occurred at strength of the evidence evaluation of successfully op Poventud’s first trial and decision and “to the court’s against [him]” (Appellant Poventud’s bail motion. posed bail.” grant reasonable whether 15-16). Br., are En Banc. These ¶ (“the ¶ 47; court see also id. 53 (Compl. argu claims that Poventud could at least concerning strength was misled integ ably pursue impugning without prohibitively Plaintiff and set against case rity guilty plea. of his $100,000, causing Plaintiff to high bail trial”)). until Poventud incarcerated be Ill Brady that had the may prove able to be disclosed, his bail would evidence been sum, In I that the district while believe amount, at a lower he would have been set correctly held that Poventud’s 2006 court bail, and he would to make have been able any asserting forecloses claims conviction for the full nine imprisoned not have been that he was innocent or that he was not guilty to a lower pleading years crime, before I agree at the scene of the present felony. level claims that Complaint that the sets forth necessarily may pursue Poventud without Furthermore, alleges that at validity guilty plea. of his impugning the (Umlauft) of the defendants least one view, claims, my are not foreclos- These prosecu mislead continued to lie to and by Heck. ed undisclosed by denying tors ¶¶ (Id. occurred. identification had JACOBS, Judge, DENNIS Circuit 120). “right not to Poventud had dissenting: liberty as a result of the deprived of be 477, 114 Humphrey, In Heck v. government of evidence fabrication (1994), 129 L.Ed.2d 383 investigatory capaci in an S.Ct. acting officer proper respect that a Supreme Court ruled Coffey, v. F.3d ty.” Zahrey (2d Cir.2000). judgments finality consistency Complaint contends 42 U.S.C. his motion to bars actions under that after Poventud filed conviction. “impugning” an extant require on the vacate his conviction based In violation, at 486 n. prose lied to the new Id. Umlauft 83, 83 S.Ct. (Shockett), Maryland, 373 U.S. stating he had indeed cutor (1963), progeny, its L.Ed.2d 215 to both the disclosed the misidentification obligation constitutional prosecution’s degree, possession and criminal weap- of a in degree. disclose information that is material to the on the first He was sentenced in to serve an defense has been located the truth-seek- indeterminate sentence of 10 to trial, years. in ing any function of a and not The conviction and sentence were “sporting theory justice.” appeal. Id. at affirmed on People See v. Poventud, majority opinion S.Ct. 1194. The under- 300 A.D.2d (1st 2002). the finality premise Dep’t mines both of Heck N.Y.S.2d 654 truth-seeking Brady. and the foundation of In Supreme Court, the New York Poventud, It holds that Marcos who se- Bronx County, vacated the conviction and cured a new trial from the State of New ordered a retrial on ground that the police York based on a failure officer’s to prosecution had failed to disclose impeach- disclose information that im- might have ment in violation of Brady. Im- peached the victim’s identification of Po- mediately after the hold-up, police found cab, livery ventud as the armed of a robber photo brother, identification of Poventud’s Brady can sue for damages though even Francisco, in a wallet Duopo’s found in charges against Poventud resolved the him photo cab. From a array, Duopo selected (to by entering on remand a guilty plea Francisco, a photograph of ini- which he offense) lesser that made clear that tialed and dated. When it was ascertained eyewitness sound, identification was and that Francisco had in prison been at the that Poventud’s alibi defense at the first crime, time of the Marcos Poventud be- perjury. trial was came a suspect. The state court vacated respectfully I ground dissent from this on the decision that violated and explain why majority’s write to the State’s failure to disclose Duopo’s ini- reasoning impairs the future tial application of identificаtion of Francisco as the as- Heck in Poventud, this Circuit. People sailant. See 337, 341, Misc.3d 802 N.Y.S.2d 605

I (N.Y.Sup.Ct.2005). A new trial was or- dered. evening 6, 1997, On the of March be-

tween Oliver Place and Marion Avenue in The vacatur afforded op- Poventud the Bronx, driver, livery cab Younis Duo- portunity reliability test of the iden- po, up gunpoint was held at in shot retrial, tification jury before a on he but neck. and a co-defendant were chose instead to outstanding resolve the indicted for the armed robbery and at- charges by pleading guilty to the lesser tempted murder. At Poventud’s attempted robbery included offense of in central identity: issue was Poventud and the third degree. ensuing guilty At the some of his friends testified on the plea proceeding, Poventud admitted his date and at the robbery, time of the he presence armed par- the scene and his elsewhere, was with them playing video ticipation robbery: in the victim, games; Duopo, the identified Po- In this charged COURT: case it’s assailant, ventud as his pretrial both from 6, 1997, on or about March approxi- photo array and again at the trial itself. mately evening, 8:40 the the area of

Rejecting Marion, testimony Oliver Place and M-A-R-I-O- identification, crediting N, the victim’s county Avenue here jury Bronx, attempted convicted Poventud of mur- you attempt personal did to steal der in degree, attempted the second property person by rob- from another using bery in degree, force, the first assault you in the first in that weapon your used rejected theory Are and concluded property. dissent

attempt personal to steal not benefit from true? that Poventud did charges those (if exists). exception to Heck one even Yes. THE DEFENDANT: conclusively con- colloquy thus plea This majority judges A of the active voted to key findings of fact: jury’s firmed of the Heck bar scope decide in banc of Marcos ultimate identification Duopo’s (if necessary) any to it. exceptions and that Poventud’s was sound Poventud majority again reverses the The in banc friends) (and that of his testimony trial so, doing In district court’s dismissal. was false. however, majority’s panel it abandons the year re-sentenced to one Poventud was relying point on a of law reasoning, instead and, already served nine having prison merely passing that received reference in re Soon after his years, was released.1 majority’s opinion. the panel a footnote to lease, action under 42 filed this Poventud York, City v. New 715 See Poventud of seeking money damages § for (2d Cir.2013) U.S.C. 57, (expressing F.3d 61 n. Brady right. He alleged violation of § claim doubt that success on would stay a of that action and then obtained guilty plea, but declin- impugn Poventud’s withdrew) (but a chal later motion' issue). filed ing to reach plea. of his On the voluntariness lenging summary judgment defendants’ motion II action, Judge § Batts ruled in the judgment was entered Poventud’s by were barred Poventud’s claims open court and guilty plea, on his made Heck, the case. See Poven and dismissed counsel, of and has not with the assistance York, New No. 07 Civ. City tud v. of Poventud’s solemn ad- been disturbed.2 30763, 3998(DAB), Dist. LEXIS 2012 U.S. places him at the guilt, which mission 2012). (S.D.N.Y. 6,Mar. WL crime, armed, scene of the with the intent Judge Batts’s appeal On robbery, “quite validly to commit removes ruling, three-judge panel of this Court case,” guilt the issue of factual from the City v. New divided. Poventud See York, 62 n. Menna v. New 423 U.S. Cir.2013). (2d York, The ma- 715 F.3d 57 (1975) (per 46 L.Ed.2d 195 96 S.Ct. subject Heck bar is

jority held that the curiam) original), and is ad- (emphasis exception: name- gaping, unprecedented a purposes, for all against missible Poventud any convicted of a crime ly, person States, 526 U.S. Mitchell United necessarily § im- bring can a 1983 action 1307, 143 L.Ed.2d 424 119 S.Ct. if invalidity of that conviction he plying the (1999). currently bring petition— cannot habeas majority opinion dispute does not prison released from including any person that, if 1983 claim would his sentence. The the success of after the service of settled; one-year authoritatively but he treats as true Judge Lynch argues that the sen- (and (1) findings court plea-bargain “approxi- deplores) of the state tence here is an by plea, and that in have come that were discredited mation of the result that would here, trial,” Concurring Op. Judge any bind defendаnt see from a fair event do not ante, 5, (2) though prosecutor allegations Lynch, at 144-45 & n. infra already solely Complaint, the time we true as a would not take account of which treat as (3) negotiating following analysis, plea vacatur. sworn statements served tool of litiga- purpose of made for the only plea Judge Lynch subjects it- Judge Lynch radically skeptical tion. about the knowability. metaphysical tests of plea, though that is self to even it is fact

15~ necessarily impugn conviction, inherently unreliable, a criminal crime scene was complaint even insufficient itself to sustain a convic- must be dismissed unless plaintiff "prove Compi. ¶1136-41, can that the conviction tion. See Second Am. appeal, 69-74, Complaint has been reversed on direct 128. The characterizes expunged by order, the withheld evidence as "evidence of inno- executive declared in ¶ cence." Id. 128. valid a state tribunal authorized to determination, make such or called into Poventud's sworn affidavit submitted in question by a federal court's issuance of a opposition to defendants' motion for sum- corpus." Heck, writ of habeas 512 U.S. at mary judgment grounds on Heck declares 486-87, 2364; 114 S.Ct. see also Wallace v. unequivocal his innocence in terms: "I did Kato, 384, 393, not commit the crime. I am innocent." (2007)(noting L.Ed.2d 973 that Heck bar Poventud, (July 19, ¶ Aff. of Marcos applies where 1983 claim would neces 2011). opposition briefing So too does his sarily "impugn" conviction). an extant impugn guilty plea directly: his "Plaintiff things happened None of those have here. maintaining knew that his innocence had majority The i~ bctnc nevertheless holds spending years prison, resulted in nine (1) may damages that Poventud sue for pressure guilt and bowed to the to `admit' pursuant theory 1983 on the because it would result in his immediate Brady-based § Poventud's 1983 claim does Resp. release." P1's to Defs' Rule 56.1 impugn (extant) judgment not entered Statement and Statement of Additional guilty plea, (2) (vacat- on his and that the Facts, Finally, damages ¶ 269. Poventud's ed) judgment entered on his 1998 convic- theory, summary judg- as set out in his favorably

tion was terminated within the papers, squarely premised ment on hav- meaning of Heck. I will take these two ing jail notwithstanding served time his by one, determinations one to show that or, best, having innocence on served pled Poventud's claim-as and as rewrit- one-year time in excess of the sentence on majority-impugns ten the 2006 his 2006 conviction. judgment, III, IV, V, see infra Points and Moreover, Poventud's briefs to the judgment that the vacatur of the 1998 three-judge panel everywhere declare his not a favorable termination because it cul- reliability guilty plea, innocence and attack the of his minated in the see infra Point guilty plea. papers rehearing VI. So do his on repeats in banc: Poventud the claim that guilty plea through his was obtained coer- III. cion, and thus is entitled to no credence: guilty plea Because Poventud's is central "[Poventud's] allocution to the `facts' con- two-part showing just to the I have sum- answering `yes,' unsworn, sisted of to the marized, begin overarching I with an summary allegations against court's of the point: complaint unambiguous- Poventud's Appellant's him." Br. 16-17. ly impugns validity guilty plea of his by asserting actual innocence. The com- Throughout litigation, then, this entire plaint this, moreover, does both as it is categorically Poventud has insisted that he pled presented and as it is on the motion any participation is innocent of in the Duo- summary judgment. for po robbery plea and that his 2006 Complaint (the through majority The Second Amended obtained coercion. The "Complaint") alleges prosecution's opinion, easy understand, that the for reasons present undertakes to recast Poventud's claim as evidence that Poventud was at the near the crime scene “was nowhere procedural he only for damages seeking Poven- posits and and Marion Avenue.” original Oliver Place of his impairment ¶ just prevail Thus, if he fol might plainly Heck bars tud Aff. 6. lead and seeks dam majority’s can invoke some lows action unless Poventud fact a allegations of different ages on fore- proposition we exception, Heck theory. a different and on different loss Point VII. close.3 See infra Poventud, liti savvy and counseled But complaint,” is the “master gant, IV submissions, underly allegations, liability damages ing theories that Poventud is But let us assume at face value. Holmes be taken should and that he Complaint, of his the master Sys., Air Circulation Inc. v. Grp., Vornado (as majority damages seeks

Inc., it) only procedural for the flaw would have (2002) (internal quotation L.Ed.2d 13 trial. The Heck bar still fore- in his 1998 omitted). Now, amend after two marks going Poventud from forward. stalls summary complaint, ments to Poventud’s otherwise, majority main- urging In grounds, a thor motion on Heck judgment tains that neither Poventud’s extant appeal a full opinion, court ough district (complete with dis nor his vacated 1998 conviction three-judge panel conviction sent), after fur consideration in banc pursuit erects a Heck bar to his it is not briefing argument, and oral majority ther Specifically, the con- damages. the con to decide this case on premature Brady a damages cludes that a award for allegations and theories of sistently-argued in with Poventud’s violation connection plaintiff. the (after trial) not im- 1998 conviction would in 2006 pugn integrity the of the conviction him at guilty plea placing Poventud’s — (based Further, guilty plea). on the the armed, with the intent Duopo’s shooting, majority concludes that the vacatur robbery' simply be “c[an]not to commit — conviction, for 1998 even with remand claims of his civil ac- reconciled with the retrial, Baker, 689, satisfy the favor- was sufficient to tion,” v. 435 F.3d VanGilder Cir.2006): (7th predicate of Heck not- Poventud swears able termination (2d Cir.2010) (considering Judge opinion, ac- reason- Chin’s we are in 3. As Ruiz’s I, analysis ing likely exculpatory doctrinal in Point cord with his also extends to evi- Judge LaFave, al., respectfully dence) differ with supra. We (citing Criminal Pro- et Chin, however, as to the limited reversal he 24.3(b), (3d ed.2007)). By at the cedure following Judge proposes. Chin identifies token, Brady obligation disclosure is same surviving Brady misleading “claims”: the dis- (as assumes) Judge not Chin a defendant’s strength attorney gauged trict when he by prose- right preliminary evaluation (pretrial post-vacatur); and mis- case hearing. cutor or in a bail setting leading court in the of bail. the state event, Judge pur- any Chin In the "claims” Chin, ante, Concurring Op. Judge See ports uphold are not claims or causes However, Brady right, is a trial for- 149-50. action; they damages posited are theories of safeguard mulated to the fairness of trial out- impossible cause of action. in aid of an comes; require disclosure of im- it does not Brady a dis- Whether a violation occurred is events, during pretrial peachment particular inquiry tinct from whether a Ruiz, See United States v. however critical. as the denial of bail—flowed 622, 633, 2450, harm —such 122 S.Ct. And, we demonstrate (2002) from that violation. (holding that the failure to L.Ed.2d 586 below, former, inquiry critical cannot be prior impeachment evidence disclose impugn- answered in Poventud’s case without Brady guilty plea does not amount to a viola- Rehal, tion); guilty plea. ing 618 F.3d Friedman withstanding holding our in Agurs, DiBlasio v. States v. 427 U.S. 96 S.Ct. York, (2d City New 102 F.3d 654 Cir. (1976); 49 L.Ed.2d 342 see also Bra- 1996), because Brady Poventud’s claim dy, 373 U.S. at 83 S.Ct. 1194. prosecution does sound malicious majority The assumes that Brady is a is, event, more focused on rule procedure detached from its ulti- withheld evidence than on actual inno- goal. mate That leads majority cence. allow damages though even The majority’s analysis premised on a (as know) undisclosed evidence is we now fundamental distortion of Brady. The not material to innocence or the serious- goal of Brady is to advance the truth at crime, ness of the and even though trial promote and to a result consistent evidence would have been helpful only to innocence; with underlying guilt or strengthen perjurious alibi. Brady evil of a violation saps is that it This error permeates the majority opinion, confidence in the impairs verdict and all turning its analysis meticulous to error fairness of the trial in terms of its substan- and subverting Brady itself. tive outcome. “Our Court and have others mistake, This ais and a serious one. long recognized violations ob- The majority reconceives Brady as de- ” truth-seeking scurе a trial’s function.... vice for preserving the defendant’s odds of United States v. Mahaffy, 693 F.3d winning an acquittal by any means, (2d Cir.2012). message Brady “The perjury in particular. majority’s progeny and its is that a trial is not a mere faulty premise thereby corrupts Brady, event’; ‘sporting it quest is a truth and diminishes it.

which the prosecutor, by virtue of his of- fice, must seek truth even as he seeks Y Blackburn, victory.” Monroe v. The “truth-finding function” of

1145, 1148, 90 L.Ed.2d 706 inheres Brady-based elements of a (1986) (Marshall, J., dissenting from denial § 1983 namely, materiality, causa- certiorari). of Brady was formulated to action— tion, and damages. But none of these truth, advance the search for not to pro- proven elements can be impugning without vide a sporting defendant with a guilty plea, and that tactic is acquittal; reason, chance at for that up blocked Heck. I take each element in Brady expressly Court refused to raise a turn. “sporting theory justice” of dignity to “the

of a right.” 90, constitutional 373 U.S. at A

83 S.Ct. 1194. Accordingly, there Brady is no depriva- materiality: As to the constitutional tion absent a concern that right the truth-find- by Brady defined progeny and its is ing function of the trial has been thwarted. the criminal procedural defendant’s due See Point why prosecu- V.A. That is process right to the disclosure of “evidence infra tors have no obligation constitutional that is material guilt punish “any disclose might Bell, 449, information that 469, affect ment.” Cone v. 556 U.S. verdict”; jury’s Supreme 1769, (2009) as the Court 129 S.Ct. 173 L.Ed.2d 701 emphasized, has such a (citing Brady, 87, “constitutional 373 U.S. at 83 S.Ct. 1194). standard of materiality approaches the “[E]vidence is ‘material’ within the ‘sporting theory justice’ of which the meaning Brady Court when there is a reason expressly rejected in Brady.” that, probability United able had the evidence

156 exculpatory or to turn over proceed- cutor’s failure disclosed, result of the been violation Id. at evidence is impeachment different.” have been ing would So, error rising to establish to the level of constitutional 469-70, 83 confi only “undermine[s] his civil this failure at when Brady violation impeachment Bag trial.” only that the in the outcome of the not dence must show 682, 3375; him favorable to see is at 105 S.Ct. ley, evidence at issue 473 U.S. undisclosed, 434, it is “material but at 115 S.Ct. Kyles, also 514 U.S. Brady, 678, punishment.” or to guilt either to at 105 S.Ct. (citing Bagley, U.S. 87, 3375) (vacatur at 83 S.Ct. is required 373 U.S. where verdict confidence”). mere “worthy of not retrospective determi- always a This is favorable evidence is failure to disclose material nation, as nondisclosure such a rule “would enough, because could reason- favorable evidence when “the pros impossible an burden on impose the whole case such ably put taken to be undermine the interest ecutor and would confi- light as to undermine a different Bagley, 473 finality judgments.” in the Whitley, Kyles v. in the verdict.” dence Moreover, 7, n. 105 S.Ct. 3375. U.S. 435, 1555, 419, 115 S.Ct. 514 U.S. sufficient, in if alone were nondisclosure (1995). Brady's materiality L.Ed.2d any concern about the relia dependent of underlying implements standard thus outcome, Brady bility the ultimate to “ensure that a Brady itself: purpose of by a could be recovered even de damages justice does not occur.” miscarriage of acquitted proposition who was fendant 667, —a Bagley, States See United district appeals courts of several (1985). 87 L.Ed.2d 481 105 S.Ct. rejected.4 courts in our Circuit have emphasized, has Supreme As the Court [Brady materi- ] standard of proper “[t]he said Accordingly, Supreme as the Court overriding concern reflect our ality must Greene, Brady claim is not in Strickler v. finding guilt.” justice of the with the “any breach of the by showing made out 96 S.Ct. 2392 427 U.S. Agurs, disculpatory obligation to disclose broad (1976); Coppa, also States v. see United evidence,” never a real because “there is (2d Cir.2001) (holding 267 F.3d the nondisclosure ‘Brady violation’ unless is to purpose” the “essential that there is a reasonable was so serious reliability criminal ver- [a] “ensur[e] suppressed probability dict”). verdict.” produced have a different would focus on the Brady's with Consistent (1999). Thus, there is no “[i]f prose- L.Ed.2d

reliability judgments, of criminal 903, Cir.1988) (6th (no Schenck, 340, Rapids, F.2d 907 359 842 4. Livers v. 700 F.3d See (8th Cir.2012) Brady charges were where dismissed (stating that “there was no violation Jonas, trial); v. No. 1:09-CV- plaintiffs] were before Grenier because [the violation 20658, 121, acquit LEXIS 2010 WL plaintiffs 2010 U.S. Dist. where were not convicted” 5, (same); 1307, (D.Vt. 2010) Gеrtz, ted); Mos 883743 Mar. Morgan v. 166 F.3d accord cf. 391, (7th Cir.1999); City Chicago, (10th Kirsopp, ley 614 F.3d 397 v. v. Cannistraci Cir.2010) 1:10-cv-980, (reviewing other circuits’ case law LEXIS 2012 U.S. Dist. No. 16, acquit 68399, (N.D.N.Y. holding in an May that "a trial that results 2012 WL 1801733 York, 2012); lead to a claim for City tal can never v. New Ambrose (S.D.N.Y.2009); produced trial a fair violation because the F.Supp.2d see 467-71 result, (11th Satz, exculpatory evi even without v. 137 F.3d also Flores dence,” issue); (no deciding Cir.1998) curiam) Smith v. Brady § 1983 but not (per Cir.2011) Almada, (9th F.3d 941-42 following prosecution's determination claim D.J., (Gwin, concurring). specially City v. Grand prosecute); McCune not to guilt reasonable doubt about whether or ees in capacities their individual are not in considered,” not the additional evidence is privity with government their employer.” Supreme Agurs, Court said “there is cases)).5 (collecting justification no for a new trial.” 427 U.S. Poventud, therefore, will required be 112-13, prove by preponderance that the nondis- The state court vacated Poventud’s 1998 ie., material, closure was that it caused ground conviction on the that the State’s wrong result that is unworthy of confi- failure to Duopo’s disclose initial identifica- dence. But his guilty plea own forecloses brother, Francisco, tion of Poventud’s that possibility. It beyond establishes — eroded confidence in the verdict. On the doubt—that the impeachment undisclosed court, record before the state confidence only could have been used at impaired because the nondisclosure Poventud’s trial to falsely insinuate that bearing had on the accuracy of the critical Duopo, Younis a truthful witness offering (re- victim, by identification made an accurate identification of Poventud as ciprocally) on Poventud’s alibi defense. In robber, should not be believed. In short, the withheld information was mate- short, the plea establishes that the sup- rial from perspective that court’s in time. posed Brady evidence is wholly immateri- Poventud, however, will be unable to al. rely on the materiality finding of the state The plea gives the necessary assurance

court in this 1983 suit. There can be no categorically, because the nondisclosure estoppel because none of the defendants justified by vacatur (the the state court in police officers, attorney, the district 2005 no longer calls into question cor- and the City) parties were in the criminal rect only resolution of the issue on which appeal, and no defendant in privity here is this nondisclosure bearing. had The vic- any litigant with in the criminal appeal. tim’s identification of York, Poventud was sound. See Brown v. New 60 N.Y.2d provide The failure to 898-99, Poventud with im- N.Y.S.2d 458 N.E.2d 1250 (1983) peachment material with which chal- (concluding preclusion that issue did lenge identification, moreover, apply against the defendant municipal- by shown to be ity a civil immaterial virtue of Poven- action for false arrest and tud’s solemn assault based on own admission. dismissal of a criminal charge ways: cannot have it both because the district he cannot state attorney and municipality guilty, do not he is that he present “stand in on sufficient relationship doctrine”); day apply question participated see Sherman, crime, also Stancuna v. but that he F.Supp.2d preju- was nonetheless (D.Conn.2008) 353-54 diced at his (“Although trial the nondisclosure of Second Circuit does not appear to have evidence that could helped have him held, expressly so number of other suggesting cir- testimony that the accurate government cuits have held employ- of the victim should not be believed. This interpreted law,” Freeman, preclusive Stancuna effect of clusion Pike 266 F.3d judgment. an earlier Although federal (2d Cir.2001); New n. 14 see also Marvel Charac preclusive York law determines the effect aof ters, Simon, 280, (2d Inc. v. 310 F.3d York, judgment Migra entered in New see v. ("The Cir.2002) parties agree that there is no Educ., City Warren Sch. Dist. Bd. 465 U.S. discernible difference between federal and 75, 81, (1984), 104 S.Ct. 79 L.Ed.2d 56 concerning judicata New York law res and significant there is "no difference between estoppel.”). collateral preclusion New pre- York’s law and federal B meaning the flows from conclusion Brady. purpose of must also to causatiоn: Poventud As disregards Poventud’s majority The action satisfy the elements only on the to focus and seeks guilty plea common law of torts—(cid:127) from the derived The judgment. Su- the 1998 vacatur of v. causation. See Smith specifically, however, Court, counseled has preme Wade, 30, 34, 103 S.Ct. 461 U.S. Thus, approach. a blinkered against such (1983). Supreme “The Court L.Ed.2d 632 Fretwell, 364, 113 506 U.S. v. Lockhart principles that crystal made it clear has (1993),a habeas 122 L.Ed.2d 5.Ct. rele- from tort law are causation borrowed assistance be alleged ineffective petitioner brought actions under rights vant to civil an interpose counsel failed cause his Orange Cnty. 1983.” Warner section that precedent circuit objection on based (2d Prob., 1068, 1071 Dep’t 115 F.3d the stan Notably, later overruled. was (alteration Cir.1996) quotation internal is the same assistance dard for ineffective omitted). claim there- marks that is used to as retrospective standard (as it salvaged by recasting fore cannot be materiality: namely, whether sess does) majority potentially as one seek- the probability” that but a “reasonable there is no more than a ing damages nominal for error, the result would claimed for the To process. due procedural violation of Strickland v. Wash have been different. dollar, one money damages of even recover 668, 694, 104 S.Ct. ington, that the undisclosed prove Poventud must (1984). Fretwell, like Bra 80 L.Ed.2d prox- the material was the factual and both approach chance rejects sporting dy, the harm he has identified: justice imate cause of trial and focuses on the criminal causation wrongful imprisonment. Fretwell concluded And of the ultimate result.6 proceeding majority’s the outcome of on the must be shown even object: failure to despite correct counsel’s harm Poventud suffered theory that deprived of petitioner had not been standing the mere inconvenience assistance, only constitutionally effective burden cannot sustain this trial. Poventud the state court make “the chance to have challenging guilty plea without in his favor.” 506 U.S. an error conviction, resulting 2006 which is barred (internal quotation marks 113 S.Ct. by Heck. omitted). prem could not petitioner First, con- Poventud must show that the claim, the Court con ise a constitutional alleges was an stitutional violation he cluded, on “a windfall to which law In injury. of his actual cause not entitle him.” Id. at does context, inquiry “essentially the causation look, under retrospective same 838. The a materiality inquiry with replicates standard, yields the same result the same is, proof’: heightened burden imper an Poventud: he would receive for already “[hjaving shown reasonable damages if afforded missible windfall that he not have been probability wóuld material impeachment the nondisclosure of withholding of evi- for the make convicted but could have used to that he dence, make the same plaintiff must then testimony unreliable. appear accurate Fretwell, forthrightly lays majority's out the majority's tacti- footnote discussion of 6. The way adopts imple- rejects my approach consigned cally to its footnote theory sporting and demon- majority's approach chance ments characterization of operate on remand in this theory. strates how it will advancing "sporting chance” See However, ante, case. See id. Maj. Op., at 134-35 n. 16. morals----’”) showing by preponderance a of the evidence.” Sutherland, (quoting Law of Callahan, mgold (1882)); Dru v. 707 F.3d Damages al., Dobbs et The (1st Cir.2013). Poventud, (2d who can 2011) Law Torts at 622 ed. materiality (“[P]roximate impugn establish without cause is not about causation ing guilty plea, his is likewise blocked from at all but about significance proving factual causation. defendant’s conduct or appropriate scope liability in light of moral and

Second, claim, prevail to on his policy judgments about very particular Poventud must prove that the failure to case.”). facts of the him give impeachment material was a harm, proximate cause of his whether the Poventud cannot establish proximate prison, harm claimed is separаtion from cause in a 1983 trial without impugning friends, family and the inconvenience of his plea. That is because he must sitting through his or some sort of show that the State’s failure to provide premium risk for the increased chance of him with impeachment evidence was a conviction or a longer sentence. all “[I]n substantial in causing factor him injury, cases, § 1983 plaintiff prove must and a factor that renders damages appro- the defendant’s a proximate action was priate as a matter of law. But as already plaintiffs cause of the injury.” Gierlinger established at length, some the undis- Gleason, (2d Cir.1998). v. 160 F.3d closed evidence here could have been useful to

Although proximate generally very particular cause is Poventud one way: question support to be an determined the trier of inference that Poven- fact, tud “where the actual cause of was elsewhere at injury the time of the undisputed, proximate is ... crime. solemnly ... Poventud has now cause is admit- question of law for ted that wholly the court.” inference is false. Caraballo States, (2d Moreover, theory United proximate F.2d Cir. 1987) (citations omitted). ignores causation proximate point the obvious alleged injury cause his inquiry focuses on “whether was caused a cause his own participation is a substantial factor the crime. To find bringing proxi- about harm, mate cause on or whether the cause such facts read moral is too would remotely judgment proximate out of insignificantly cause de- related just harm to termination legal finding materiality be basis for as a liability.” Henrietta D. v. would embrace the Bloomberg, “sporting ap- chance” F.3d (2d Cir.2003) (citations proach 278-79 Brady, the criminal trial. and internal omitted). quotation marks 83 S.Ct. 1194 (refusing to ac- strategy cord a trial of this digni- sort “the proximate This cause determination has ty of a right”). constitutional Accordingly, a moral dimension proximate because prove proximate cannot cause recognizes only cause those causal factors impugning without guilty plea and in- society prepared is legally hold viting the court to disbelieve it. responsible given consequence. for a See Anza v. Supply Ideal Steel Corp., 547 U.S. C 451, 467, 164 L.Ed.2d 720 (2006) (“That is, recover, plaintiff must damages: majority As to opinion ... injury show that his sufficiently appears money to be the first to hold that connected to the tort judg- that ‘the moral damages may be an alleged awarded for practical ment and sense of mankind occurring violation trial [will] of a recognize responsibility in the domain of criminal defendant pleads who thereafter

160 retrial) any do not see (or plea her and sentence. We of is convicted (or for, any any authority supporting, lesser in crime or find underlying basis same offense).7 has twice con periods Our Court two of im separation cluded of these damages § are avail § 1983 sidered whether of a 1983 ac prisonment purposes for cases. We affirmed analogous Westchester, in able Cnty. 410 tion.” Stein v. of claim complaints § (Conner, of two 1983 (S.D.N.Y.2006) dismissal 175, F.Supp.2d a convic damages: when vacated ing such ). authority majority’s for the No J. by subsisting a compromised tion was Judge has materialized since Con position charge initial and when an guilty plea, ner decided Stein. to a lesser included by plea a resolved damages imprison- claim based on To cases, we deemed that In both offense. inherently given Poven- ment is difficult that we decided sufficiently evident result Duopo. Mr. guilty plea holding up tud’s summary McNeill by order. See the issue backup theory, majority opinion a As N.Y., No. 06- City & State People v. of of that “did recognizes Brady as valid claims 77085, CV-4843, Dist. LEXIS injury.” Maj. Op., not result concrete (E.D.N.Y. Oct. 2006 WL ante, a Brady pure at 135. But is not 2006), aff'd, Fed.Appx. summarily were, If it criminal defen- process claim. Cir.2007) (2d (“Although Appel- 778-79 damages claim based on dants could vacated, conviction was lant’s state court probability monetization of the increased bar, plea stands as a subsequent guilty his they by ‍​​​‌​​‌‌‌‌‌​​​​​​​‌​​​​‌‌​‌‌‌‌​​‌​​‌​‌‌​‌​‌‌​​‌‌‍conviction faced reason of the of Heck, action.”); Papes § under to a evidence, of suppression regardless of the Brown, No. 97 Civ. 1998 WL kov v. 1998) (So acquittal ended (S.D.N.Y. prosecution whether at *5 June This, course, J.) (“[A] defy or conviction. of would guilty, even to a tomayor, plea of claim, Heck, Brady for which the was itself a charge lesser than which arrested, Weiner, §a 1983 ac bars 179 F.3d plaintiff well as Amaker (2d tion.”), summarily aff'd, (2d 173 F.3d 845 Cir.1999), majority purports which the Cir.1999). importantly, ap- this to follow. More incompatible purpose with the proach is only judge district this Circuit in the Brady, which is to ensure confidence it as ele- with identical facts viewed deal in terms proceedings outcome of criminal entirety bar the mentary that Heck would materiality Brady’s or innocence. guilt claim, plaintiffs Bracfy-based showing prejudice requires standard plaintiff if seeks however framed: “Even the defen- served, inherently looks to whether time damages solely ‘extra’ was, fact, injured.8 concretely illegitimacy an dant imputes it nevertheless pears composed attorney’s fee and to be of an approaches such a result. In Ol- 7. One case Correiro, (1st Cir.1999), punitive damages F.3d 52 award. sen v. small plaintiff’s conviction was overturned murder Thus, disagree majority we can suppression due of evidence at his first Complaint by successfully salvage plea Poventud's subsequently he entered a damages. recasting one for nominal See manslaughter. Id. at 55. it as nolo contendere to ante, rejected request Maj. Op., at 135-36. Poventud's his for in- The First Circuit "injury” damages, holding could be the frustration of that this carceration-based testimony, ability perjurious went to bolster request was barred either because it truth-seeking thereby func- defeat the trial’s beyond “the actions” or be- limits i.e., “sporting chance” that is prohibited the doctrine of cause it was tion— progeny. and its The line proximate The Court afforded cause. Id. at 67-68. 4, supra, supports cited in footnote permitted rea- of cases nevertheless much —without $6,000, damages are not ap- conclusion that nominal soning' recovery which —the VI come if prosecution is abandoned and charges against the defendant are dis- Heck bars Poventud’s claim for the addi- However, missed. vacatur yield does not tional reason that there has been no favor- when, favorable here, outcome original able outcome of the 1998 conviction within charges are compromised pursuant to a meaning precedent. of that plea agreement that results in a conviction The judgment was neither re- for a DiBlasio, lesser included crime. In ante, “expunged.” Maj. versed nor Op., expressly Court held that a conviction 136-37. entry Reversal would mandate for a lesser included offense after vacatur opposite an judgment that dismisses the does not constitute a favorable termination indictment, and an expungement would purposes of Heck. I think criminal most obliterate, wipe out and annihilate the con- agree defendants would that a vacatur viction, whereas, fact, Poventud’s 1998 leading only is, plea retrial or a general- conviction in contemplation was “vacated” ly speaking, an outcome that can be con- of a retrial. contingent That was a rather a complete victory sidered only for defense than a final outcome. is Vacatur not nec- counsel. essarily an “outcome” if an outcome is how The majority recites that it complies a proceeding comes out at the end. with the favorable termination rule of Di- concedes, majority As the vacatur of Blasio, but then tries to narrow the rule to Poventud’s 1998 conviction with remand particular constitutional claim there at for retrial is not a final favorable termi- issue: prosecution. malicious This nar- nation as that term was understood at rowing Heck, fails because premised itself law, common because at common law a error, on Brady an analogy drew to mali- final favorable termination meant “that the prosecution cious requirements analo- —an proceeding cannot be brought again,” and that, gy as the majority recognizes, was no final favorable termination is obtained not coincidental but “continues throughout prosecution when a is pursu- “abandoned ante, Maj. Op., Heck.” at 130. Heck ex- ant to a compromise with the accused.” that, plains law, under common “a cause of ante, 131; Maj. Op., see also id. at 136. prosecution action for malicious does not

Moreover, the vacatur of the judg- accrue until the criminal proceedings have ment cannot be deemed a favor,” favorable out- plaintiffs terminated come under Heck uncoupling without concluded that “so also a 1983 cause of vaeataur from the plea to which it damages action for attributable to an un- It led. would follow analysis from that constitutional conviction or sentence does —(cid:127) as Poventud argument conceded at oral not accrue until the conviction or sentence majority and as the concedes—that a vaca- 489-90, has been invalidated.” 512 U.S. at tur is a favorable outcome for pur- Heck 114 S.Ct. 2364. Those terms —“terminat- poses if by even it is a plea followed to the ed in plaintiffs favor” and “invalidated”— very same offenses as the vacated convic- synonymous, are rather than distinct. See (rather tion DiBlasio, (“If than to a lesser included of- 102 F.3d at 659 interpreted fense), and even if it is followed literally, convic- this sentence would seem mean tion very on the same offenses after a time a conviction is overturned retrial. That is counterintuitive. Mere corpus a writ of habeas there has been a vacatur can develop into a favorable out- final determination in favor of the accused. (at case).

available for supra violations least in this See at 156 n. 4. exonerated that would have vestigate leads what the that this is convinced are not We him, that would Heck, intended.”); and withheld Court [Heck] cf. identification.9 (Souter, J., impeached the victim’s have 493, 114 S.Ct. U.S. at majority that the Heck (noting concurring) Complaint that the majority thinks law favorable common “transplanted” with innocence” “less concerned claims §to requirement termination impeach- witness concerned with more conviction). an extant impugn flatly alleges Complaint But the ment. “evi- identification is suppressed that the prece- away incompatible explain To Compl. Am. Second of innocence.” majority opinion dence in the dents, a footnote ¶ alleged it to be “evidence 128. And is Brady claims be- a division suggests because, the time of “[a]t innocence” (1) exculpa- involving withheld those tween re- crime, physically did not proved [Poventud] have inno- that could tory evidence brother, resemble [he] nor did malicious semble his suggest thus “do cence and (2) depicted in the old that, as he was claim[,]” [his brother] and those prosecution ¶ by Duopo.” Id. 25. identified Poventud’s, photograph with are “less concerned like Thus, although the evidence was with- on] instead focus[ and [that] ... innocence impeach been useful to held would have identifying witness was an ‘evidence is, bottom, evi- credibility, it Duopo’s unreliable, impeaching and evidence Duopo’s not as- that Poventud was wit- dence prosecution credibility significant' ” run allegations, which ante, sailant. These at 137 n. 20 Maj. Op., nesses.’ ¶ 128). certainly Complaint, throughout Ac- Compl. Am. (quoting Second though prosecution, in” malicious the first subset “sound majority, cording to the ultimately brought under Bra- the claim is termination as final favorable requires a dy.10 this common law and by the understood DiBlasio, does and the second Court between Bra- majority’s The distinction

not. Id. Bra(%-impeaeh- claims and &/-exculpatory is, event, and any novel majority draws ment claims that the The distinction implies It that a defendant majority unworkable. result. The favor its does not pursu- Heck may bear a heavier burden suggest Complaint does thinks that if the withheld evidence ing Brady claim Complaint but the prosecution; malicious merely if actually exculpatory than it is cover-up” is “police a nefarious describes lawyer can impeaching. Even a mediocre attempted murder “wrongful leading to a leaky сategories into blend one of these Am. robbery conviction.” Second Moreover, ¶ justify can the other. what alleged it 1. Thus Compl. “sporting other than the curious distinction Poventud with no evidence police targeted cause), ex- (much chance” view of has been id. probable less guilt of his ¶¶ 35-46, rejected by Supreme Court? 14-17, 24, pressly failed to in- purposely suggest majority fails to how district police investigate 10. The example, the "did not 9. For alibi, simply proceeded complaint allegation-by- with parse but [Poventud’s] courts are to Compl. Am. processing arrest." Second [his] Brady-based allegation which to determine ¶ Duopo gun to shoot 41. And when the used they are Heck-barred because 1983 claims shooting, than “[r]ather a later was linked to prosecution. This doc- in” malicious "sound identify Duopo would Mar- take the risk that novel, high-maintenance as well as trine is shooting] suspect in the later [the tinez unnecessary, and erroneous. [Poventud], against police case undercut their Duopo photo in a not show Martinez to did array lineup." Id. or a proper distinction to be drawn from the three-judge panel, an opinion which progeny Heck and its is not between mali- has in event been vacated. Assuming claims, prosecution cious much arguendo that there are some exceptions less between Brady-exculpatory Heck, and Bra- we conclude that Poventud’s ac- Rather, di/-impeachment claims. it is be- tion could not come within them. (1) tween constitutional claims that impugn On the basis of self-described dicta (whether plaintiff conviction because the signed by five Supreme Court Justices claims he is innocent or because he claims (three of whom longer are no on the the trial’s substantive outcome cannot be Court), a split Circuit opened has as to trusted) (2) constitutional claims that whether some exceptions may Heck be (of do not which excessive force claims are permitted. nutshell, In a these Justices the most example). obvious When dealing posited that “a prisoner, former longer no former, here, with the as we do we should ‘in custody,’ may bring a 1983 action faithfully apply our favorable termination establishing the uneonstitutionality of a precedent, which avoids the pitfalls, incon- conviction or confinement being without sistencies, and surprises majority’s bound satisfy a favorable-termination approach.11 requirement that it would impossible be as compels Precedent us to conclude that a matter law for him to satisfy.” the Heck bar blocks Poventud’s claim. Po- Kemna, Spencer 1, 21, v. 118

ventud’s criminal proceeding did not termi- 978, (1998) S.Ct. 140 (Souter, L.Ed.2d 43 pled nate until he guilty to a lesser includ- J., added). concurring) (emphasis DiBlasio, ed offense. 102 F.3d Therefore, Brady-based § Poventud’s 1983 Several Circuits have that concluded the claim “does indeed call into question the Spencer concurrences cannot override Amaker, validity of his conviction.” 179 See, Heck’s binding precedent. e.g., Entzi F.3d at 51. Redmann, (8th 998, v. 485 F.3d 1003 Cir. 2007); Davis, 197, Gilles v. 427 F.3d 209-

VII (3d Cir.2005); Johnson, 10 Randell v. 227 (5th Cir.2000) Because we conclude that Poventud’s curiam); F.3d (per claim necessarily implies invalidity Rivera, (1st of Figueroa v. 147 F.3d conviction, Cir.1998). his extant we reach the issues These courts hold that Heck’s launched this rehearing absolute, in banc: bar is heeding Supreme whether applies only the Heck bar per- that, Court’s admonition if binding even in custody, sons majority as the precedent “appears to rest on reasons re held; three-judge panel whether jected decisions, there are in some other line of any bar; exceptions to the Heck Appeals Court of should follow the case any whether exceptions may directly controls, exist which leaving to [the Su would save reject Poventud’s claim. preme] We prerogative Court the of overruling the holding of majority opinion Felton, issued its own decisions.” Agostini v. Judge Lynch’s concurrence imperfect reliability eyewitnesses, does little else puts impugn judgment. (Judge but the 2006 Cala- ability anything in doubt the to know about Judge siege bresi and Sack laid to it in the conduct, Op. Concurring Judge human see majority opinion three-judge panel, of the so ante, 139-40, 144-45, Lynch, and concedes so.) judges that makes three to have done To “legal[] validity]” plea only of the in impugn plea, Judge Lynch attacks the grudging perfunctory chiefly in a terms— (as plea-bargaining process though pleas are footnote, id. at 141 4.n. always product pressure), observes satisfy Heck’s favorable termi- thereby L.Ed.2d 203, 237, 117 (internal (1997) quotation simply marks omit he decided not requirement; nation

ted). to. nevertheless held have Other Circuits full banc court point, On this one in recog courts to allows SpencePs dicta majority The dis unanimous. seems be compelling circumstances unusual and nize the broader any claims occasion to “reach holding does not absolute in which Heck’s deci panel on which the rested its issue See, Burd v. e.g., claim. ly foreclose a ante, sion[,]” Maj. Op., at 136 n. which (7th Sessler, 429, 435-36 Cir. 702 F.3d that the Heck bar does not survive is 2012); Longshore, 621 F.3d v. Cohen custody, from see plaintiff release of the Johnson, (10th Cir.2010); v. Wilson Poventud, majority at 60. The 715 F.3d (4th Cir.2008); Pow 267-68 535 F.3d that, if opinion acknowledges nevertheless Cnty. Pub. v. Hamilton ers Defender claim in terms Poventud’s were cast (6th Ch\2007); Comm’n, 592, 603 501 F.3d prosecution, it be of malicious would (9th Gates, 442 F.3d Guerrero DiBlasio, is of course a barred which Pataki, Cir.2006); Harden v. 320 F.3d if happen Heck-bar case. That could not (11th Cir.2003). 1289, 1298 (as three-judge panel majority in need to choose side this There is no case) operates the Heck bar held exception articu- the narrow split because jail, long plaintiff §a is so inapplica- be lated Justice Souter would (as liberty removed when he is at motivating event. ble here been). In acknowl Poventud is and has cir- dicta was that Spencer in the concern analysis edging “circumseribe[s] their of a crimi- beyond the control cumstances Brady-based 1983 claim” him the might deprive nal defendant acknowledges ways, majority several challenge a federal constitu- opportunity challenging to a civil claim the bar court. Poventud in federal tional violation Thus, subsisting judgment. notwith person. is not such a is as free as standing Poventud first conviction challenged his Poventud us, majority’s footnote 20 reflects the it making unnec- in state court and won— could holding that certain of his claims federal re- essary for him seek habeas to. ante, by Maj. Op., well be “barred” Heck.12 op- Poventud had the point, lief. At that Similarly, majority’s foot at 137 n. 20. trial or of defending in an untainted tion of § deny at that a pains note crime on re- pleading guilty to the same im judgment in favor of Poventud would a reduced charges accepting duced conviction, see id. at 137 n. pugn his 2006 plead. sentence. He chose be obviated 21-a consideration would a motion to option filing then had the majority may for the bar of Heck. The but plea of his challenge the voluntariness —(cid:127) passim claim it does not say and so, withdrew it and Poventud did but he custody from re decide whether release It evidentiary hearing. an prior to bar, n. see also id. at 125 moves the Heck “impossible as therefore no means 1; at 127 n. but the text and mandate id. law,” Spencer, matter of 523 U.S. suggest otherwise. J., majority opinion (Souter, concurring), for 118 S.Ct. 978 falling. deny gravity It while conviction and is useless challenge Poventud to his doctrine and as majority that effort fails as a matter of as the endeavors to limit Insofar claims, specifically. claims prosecution I it relates to Poventud’s Heck’s bar to malicious why supra at rely opinion’s as to See 161-63. on this discussion majority The opinion necessarily today’s thus error is Brady now in- corrected — that, cludes, rejects the idea once a criminal de- imprimatur, with our the right to liberty, longer recompense fendant is Heck no bars for a denial of the opportunity § challenging 1983 claims to commit subsisting judg- perjury more successfully. analysis ments —the Heck that we went in I concur fully in Judge Jacobs’s power banc to reconsider. dissent, ful explains which how majori (but

ty effectively unjustifiably) inters VIII Heck v. Humphrey, 477, 114 S.Ct. (1994), 129 L.Ed.2d 383 as it relates majority The corrupts erodes Heck and to convictions obtained after an earlier ver Brady by adopting deeply flawed notion dict is set aside for Brady error. I write process of due process as a “sporting —due separately to make point that Poven chance.” holding This will have conse- claim, tud’s apart from undermining the quences, salutary. none of them premises basic of Heck Humphrey, also moral force of a plea will no simultaneously distorts v. Mary longer “quite validly ] issue removef land and its progeny beyond recognition. case,” guilt Menna, factual from the Disregarding Supreme Court’s recog U.S. at 62 n. 96 S.Ct. 241 (emphasis nition that Brady claims “have ranked omitted), merely but will be an admission within the traditional core of habeas cor to be evaded 1983 lawsuits impugning pus and province 1983,” outside the the results of extant state pro- criminal — Switzer, Skinner v. -, ceedings. Individuals who have been fair- 1289, 1300, (2011), 179 L.Ed.2d 233 ly convicted of serious crimes will seek and the majority ignores single fact that damages being receive deprived of a guilty plea necessarily defeats opportunity better for perjury, peo- while claim on the merits render- ple who actually are innocent and exoner- ing implausible any contention that ated based on new evidence have no cause undisclosed impeachment evidence is ma- damages of action for to mention the —not (as terial. The undisclosed evidence Po- victims of crime such Duopo, as Mr. shot establishes) guilty plea ventud’s now could in the job. neck while on the This case only have been used at trial to support a why illustrates the sporting theory chance perjurious Today’s defense. startling con- justice of criminal rejected by that was circumstances, clusion—that in such a de- Brady Court is beneath the dignity of a fendant can nevertheless state a claim for right. constitutional recompense arising Brady from Mary- v. spells serious trouble for ap- future land — CONCLUSION plications Brady of in this Circuit. For foregoing reasons, I would af- ^[*] v ^[*] firm the decision of the district court. The relevant facts are simple, albeit elid- majority’s First, ed in the presentation. LIVINGSTON, DEBRA ANN Circuit Poventud’s guilty plea 2006 admits Poven- Judge, dissenting: presence tud’s participation and armed in today, Brady Until Maryland, v. 373 a crime that left Duopo deprived Younis of 83, U.S. 83 S.Ct. 10 L.Ed.2d 215 money Second, his in shot the neck. (1963), and progeny represented its a plea, safe- this majority acknowledges, as the is guard against miscarriage justice. wholly diametrically “at odds with In this Circuit —at least until such time as presented [the] alibi” Poventud at his not other- ante, in a reasonable doubt that did trial ates at 134—a Maj. Op., exist, been constitutional error has and intro- wise took the stand

which if not the case— But this is falsely to attest that he committed.” witnesses duced about there is not reasonable doubt question, in “[i]f on the date elsewhere evi- Third, or not the additional guilt whether games. Poventud’s playing video 112-13, considered,” is id. action, Brady, presses dence premised on § 1983 error has oc- constitutional at his S.Ct. 2392—no that Poventud complaint: one but determines, con- majority curred. The deprived impeachment trial was can authority, that Poventud trary to this support have used to he could evidence Brady arising claim from the make out a by suggesting Duopo was defense alibi impeachment him with provide him failure to identifying in as the robber. mistaken though trial even this evidence at his 1998 this 1983 claim to Finally, permitting in (as guilty that Po- undisclosed majority concludes proceed, the establishes) have been plea now could guilty plea notwithstanding ventud’s — a The support perjurious used to defense. fundamentally at odds with his plea is in authority lack of favor significant no obstacle to his poses alibi defense — is an indication surprising such a result Brady claim. caution) (and should have been is, indeed, A startling result. This majority’s analysis in is something an plea is admission “counseled amiss. reliable,” Supreme guilt factual so fidelity said, “that, voluntary something That is a basic where Court has that it is the validly Brady. majority charges The intelligent, quite it removes the court that “misunderstands Bra- guilt from the case.” Men district issue of factual ” that, York, by “incorrectly presuming] on dy 62 n. na v. New 423 U.S. (1975) case, vio- cu the facts of this the State could (per 46 L.Ed.2d 195 riam) оnly if Po- Brady rights late Poventud’s (emphasis original). Su Maj. Op., makes ventud is an innocent man.” preme Brady jurisprudence Court’s ante, sure, moreover, can clear, error at 134. To be work constitutional when, guilty, in favor of the as well as those Brady purposes only present is accused, majority wrongly but it is the considering the undisclosed evidence court) (and whole, misapplies not the district light of the record as a there Thus, safeguard Supreme rule. Fashioned as reasonable doubt.1 justice, see Agurs, against miscarriage v. Court said United States 667, 675, 97, 112, Bagley, L.Ed.2d 342 States v. U.S. 96 S.Ct. United (1985), (1976), that, L.Ed.2d 481 “if the omitted evidence cre- 105 S.Ct. omitted); clear, quotation Kyles assessing Brady marks see also question 1. To be 419, 434, Whitley, materiality likely is not it is more whether (1995) (citing United States been 131 L.Ed.2d 490 than not that defendant would have 667, 678, 3375, Bagley, acquitted 473 U.S. 105 S.Ct. if undisclosed evidence had the whether, (1985)) (or (defining considering a "reason- 87 L.Ed.2d 481 been revealed evidence, probability” proof able of a different result in terms the would have been suffi Rather, whether, cient). probability con- question con of "a sufficient to undermine the is whole, outcome”). sidering in Such is not the the as a the undis fidence the record might simply reasonably case for information that "affect closed evidence "could be taken to verdict,” jury’s sapping confi- light as the without put the whole case in such a different Agurs, the United States v. in the verdict.” dence in result. to undermine confidence 97, 108, 2392, Greene, 263, 290, L.Ed.2d 427 U.S. 96 S.Ct. 49 Strickler v. 527 U.S. 119 1936, (1999) (internal (1976). L.Ed.2d 286 342 S.Ct. 144 Brady imposes obligation Greene, fundamental dence.” See Strickler v. prosecution on the 263, 281, disclose evidence for 119 S.Ct. 144 L.Ed.2d 286 use at trial that is “favorable to ac- [the] (1999); Ruiz, see also United States v. guilt cused” and “material either to or to 622, 628, U.S. 122 S.Ct. 153 L.Ed.2d punishment,” Brady, 373 U.S. at (2002) (noting that “the Constitution nondisclosure of S.Ct. Where such require does not prosecutor the to share occurs, regardless evidence whether defendant”). all useful information with the intentionally undisclosed evidence was or Brady error only occurs when favorable (or, indeed, negligently withheld withheld undisclosed evidence is material when con- any the absence of fault on part sidered in light of the record as a whole. team), prosecution there is constitu- For “[i]f there is no reasonable doubt tional Supreme error: as the has Court guilt about whether or not the additional said, such error occurs “because of the considered, evidence is justifi- there is no evidence, character of the not the charac- trial,” cation for a new and there is no prosecutor.” ter of the Agurs, 427 U.S. at constitutional Agurs, error. 427 U.S. at 110, 96 S.Ct. 2392. The constitutional con- 112-13, 2392; 96 S.Ct. see Bagley, also cern is thus with a verdict at trial in U.S. at 105 S.Ct. 3375 (noting that “a a circumstance in which the nondisclosure constitutional error ... if occurs favorable, material evidence “under- evidence is material in the sense that its outcome,” mines Bagley, confidence suppression undermines confidence at raising U.S. S.Ct. trial”). outcome of the possible miscarriage jus- concern of a tice, now, see At least until Coppa, United States v. 267 F.3d the character of the (2d Cir.2001) (noting Brady right, focused as it is on the central purpose” “essential of Brady prog- and its question of whether the nondisclosure of eny protect “is to right favorable, defendant’s to a material evidence saps confi- fair by ensuring trial the reliability any dence in the ultimate determination of him”). criminal against verdict guilt placed has Brady most claims “within the traditional core of habeas cor- errs, majority so, badly thus pus province § and outside the 1983.” addressing question whether Poventud Skinner, 131 majori- 1300.2 The may proceed with Brady claim however, ty’s analysis, suggests regard without an essential element that § 1983 will hereinafter be available to prove Poventud must at his trial: civil defendant whose initial namely, conviction is vacat- materiality of the undisclosed Brady retrial; ed for evidence. For as error but who awaits Supreme Court has said, vacatur; pleads guilty repeatedly claim after or is even is not made by showing out “any very breach of the broad convicted of the same crime upon obligation to exculpatory cases, disclose evi- retrial. For in none of these as the states, majority erroneously, 2. The "generally judgment that I ar- violations do seek a - Switzer, -, gue "that Skinner v. qualifying speedier them” for immediate or 1289, 1300, 179 L.Ed.2d 233 release, 1300, Brady 131 S.Ct. at claims have (2011), comprises general prohibition on My point most often sounded in habeas. ante, Brady-based Maj. Op., 1983 claims.” merely majority's that the reformulation of simply recog- at 134 n. 14. I do not. Skinner Brady right dispens- reformulation that —a nizes, accurately, that because obligation prove es with Poventud’s materi- "is, definition, always favorable to the de- ality changes at his civil this calculus trial — guilt punish- fendant and material to his insignificant for a not set of cases. ment,” parties asserting Brady and because 168 (as it establishing guilty plea, it, judg- would “a favorable

majority puts does) impeachment the undisclosed § action ... render 1983 in [the] ment complains which Poventud evidence about judg- court subsequent state invalid” by him at trial only have been used could ante, at 136-37. And Maj. Op., ment. accurate identification impeach Duopo’s termination, majority’s in the favorable assailant, forecloses the as his of Poventud associated view, hoary requirement old is a Brady claim that Poventud’s possibility Brady and not prosecution malicious with excuse the This is not to can succeed. claims, fact that Heck itself despite the Po- failing provide in police conduct Heck, claim. 512 a See involved at trial that ventud with the information 479, (stating at 114 S.Ct. U.S. bed, hospital first identi- Duopo, from his alia, complaint alleged, inter pro se Heck’s assailant, as the fied Poventud’s brother “knowingly de- had the defendants all.3 Po- suspect was a before Poventud exculpatory which was stroyed evidence on trial was vacated ventud’s conviction in- proved [Heck’s] and could have nature so. But Poven- ground, properly (internal omit- quotation marks nocence” that he solemnly now admitted tud has ted)). the crime that on March committed evening, left at about in the 8:40 that “im- Supreme has held Court Place Duopo in the area of Oliver Younis in rela- special information is peachment Bronx, bleeding in the and Marion Avenue trial,” so that “the tion to the fairness gunshot from a wound. Poventud’s require does not Govern- Constitution law, establishes, a matter of that he plea ev- impeachment to disclose material ment Duopo and that was the armed assailant entering plea agreement prior to idence identifying him—in was not mistaken Ruiz, defendant.” a criminal with short, impeachment the undisclosed 629, 633, (emphasis S.Ct. Thus, utterly immaterial. even evidence yet But the Court has original). § if Poventud’s claim were not barred one—where a a case like this considered should have been by Heck—and it is—it damages af- plaintiff seeks Poven- pleadings. dismissed on the For trial, having convicted at his being ter tud, guilty plea having admitted vacated for the nondisclosure conviction the truth of what the undisclosed evidence, pleading and then impeachment deny, helped falsely have him could admitting very to the guilty, solemnly now allege cannot the elements of possibly trial evi- that the undisclosed proposition any plead- cognizable Brady claim under impeach. could have been used dence 12(b)(6); Fed.R.Civ.P. ing standard. See understood, however, that long It has been Gibson, Conley 355 U.S. 45- see also v. government’s constitu- scope of the “the (stat- (1957) L.Ed.2d 80 Brady “and, duty” pursuant tional dismissed if ing complaint that a should be — concomitantly, scope defendant’s beyond plaintiff that the appears “it doubt right ultimately defined constitutional support of his prove can no set of facts in —is relief”), at 140. retrospectively.” Coppa, 267 F.3d him to claim which would entitle Twombly, enough abrogated by Corp. to doom Poventud’s Bell Atl. And this is 167 L.Ed.2d claim. states, police learned that accurately on Poventud when Judge dissent focused 3. As Jacobs’s suspect when day became a prison Poventud’s brother his brother was in on photo police recovered his identification from crime. Suspicion Duopo's cab. a wallet found in

169 (2007) Conley in (rejecting favor of the should be tо awarded Poventud “for the 929 standard). plausibility fact that lost opportunity Poventud the to acquitted may be of a crime very that he by majority avoids this conclusion well have committed because the rules reading materiality Brady out a claim— were not at preced- followed” the trial that inexplicably, that suggesting, whenever guilty Concurring ed his plea. Op. of undisclosed, goes favorable and evidence ante, Judge Lynch, at 143. Poventud’s is at the defendant convicted plea, argues, he preclude should not to such ipso prove guilt has failed State facto beyond Brady damages and a because “humankind lacks the a reasonable doubt ca- pacity violation has been The ele- to knowledge established.4 obtain absolute claim, however, Brady ments of a are well past truth about events.” Id. at 143. The require both the (in settled nondisclosure truth, he notes an observation perhaps a showing of favorable evidence and that before), elusive, made once or twice “is the undisclosed evidence is material —that certainty.” can never be with known Id. evidence creates a undisclosed reason- at Judge Lynch that charges guilt to punishment, able doubt as con- dissenters, apparently forgetting “the lim- See, sidering e.g., record as a whole. scope ited of human knowledge,” “appear 553, McKinney, Alexander v. 556 692 F.3d plea to insist that guilty rep- [Poventud’s] (“In (7th Cir.2012) bring Brady order to a just legal truth, resents a an but exis- 1983], claim a plaintiff [under must dem- 143,145. one.” tential Id. at (1) sup- that: the prosecution onstrate respect, With it is majority that (2) evidence; pressed the evidence was give plea refuses to guilty its (3) accused; favorable to the the evi- ordinary, legal material, is, Perhaps effect. because dence was that there was a cognizant of the limits of prejudice en- human knowl- probability reasonable that sued.”); Almada, edge, Supreme Smith v. Court accord 640 F.3d has cautioned (9th Cir.2011); 939 City Ambrose v. that a plea grave a “is and solemn York, New F.Supp.2d act to be care accepted with (S.D.N.Y.2009). Poventud, having admit- States, Brady discernment.” v. United guilty plea present ted that he was 742, 748, S.Ct. crime,

and that he participated can- (1970). plea,” L.Ed.2d 747 “Central to the not at his 1983 trial contend that said, the Court has “and the foundation for impeachment undisclosed evidence raises entering judgment against the defendant is question very these In propositions. open court defendant’s admission short, materiality he cannot establish aas the [charged] that he committed acts.... matter of law. him- against He thus stands as witness Id.; Henderson, concurrence,

Judge Lynch, in his self.” see also Tollett v. simi- larly disregards the element of ma- 411 Brady U.S. (1973)

teriality, asserting damages (noting L.Ed.2d 235 criminal suggests, The majority obliquely Brady, also See with- ishment constitutes error. here, explanation, materiality might out be 1194. But impeachment shown here virtue of the fact undisclosed not ma- pled guilty punishment: solely goes lesser it included offense and terial to the charges Duopo's question not to the same which he was on whether identification of ante, Maj. Op., convicted at trial. See Poventud as one of the was accu- robbers short, majority question 17. The n. is correct that the nondis- rate —in whether Poven- pun- closure of favorable evidence material tud at all. committed crime doubt, no constitu- solemnly dence raises reasonable has admitted his who defendant occurred). “may not thereafter tional error has court guilt open in a materiality as matter of relating claims to the cannot establish independent raise majority that avoids conclu- rights oc- law. And the deprivation of constitutional entry guilty by dispensing with this element only to the of sion prior curred of a claim. plea”). Lynch argues that Poventud’s Judge argues jus- Judge Lynch “simple than his is no more reliable guilty plea sense, rough requires tice” “common cites testimony at trial. But he no alibi here. justice” majority reaches result none) (and prop- is for the authority there ante, Judge Lynch, of at Concurring Op. may pick and choose judges osition that 168-69, . rough Poventud obtаined his be afforded their pleas should guilty which however, court, on justice, when the state matter, a legal As ordinary legal effect.5 that did not include Poventud’s record (and to claim need moreover without subsequent participation to admission omniscience), con- only one of Poventud’s crime, properly determined he was and what flicting accounts of where of initial misidentifi- Duopo’s nondisclosure 6, night March doing he on of was cation of va- required Poventud’s brother 1997, outstanding of an criminal part is catur of Poventud’s trial conviction upon him in binding that is other

judgment inde- remand for a new trial. Poventud’s of col- proceedings including purposes — to 20 was years terminate sentence of 10 estoppel in a civil suit such this. lateral however, Poventud, has now set aside. 90, 102-04, McCurry, 449 See Allen v. U.S. solemnly admitted that he was the rob- (1980) (hold- 66 L.Ed.2d 308 S.Ct. Duopo’s ber—that trial identification was estoppel ing precludes that collateral and, effect, accurate Poventud’s relitigating § facts plaintiff from es- It perjurious. alibi neither defense conviction). in a criminal prior tablished “justice” “common nor to conclude sense” case, negotiates of this in that a counseled defendant who In the circumstances after a trial guilty plea guilty plea affirms the the vacatur of which Poventud’s error, impeachment admitting truth what the conviction for him at truth only helped deny have of what undisclosed evidence could deny, have been at plea renders him unable to could used trial to may negotiated § trial. prove materiality impugn at his Be- thereafter stridently plea, plea volun- 1983 suit in which he cause a counseled where tary intelligent, right issue asserts his innocence and “removes the both his case,” Menna, By compensation. refusing from the substantial guilt factual plea ordinary legal U.S. at 62 n. 96 S.Ct. the omitted afford Poventud’s its effect, majority, contrary Brady creates longer evidence no a reasonable progeny, adopts did exist. its “a constitutional stan- doubt that not otherwise See 112-13, materiality approaches the Agurs, 427 U.S. at 96 S.Ct. 2392 dard of [that] theory justice’ (noting ‘sporting that omitted evidence “must be which the Court rejected Brady.” expressly Agurs, evaluated in the context of the entire rec- at observing ord” and that where such evi- U.S. 96 S.Ct. 2392. will, Ironically, prove materiality Judge Lynch’s 1983 trial concurrence also apparent majority refuses makes what impugning necessity, involve the his extant v. Hum- admit in its disavowal the Heck conviction. phrey namely, effort bar: that Poventud’s majority charges required because, that the tion prior dissenters to Poven- Fretwell, plea,

“misunderstand” Lockhart 506 tud’s the nondisclosure of the im- L.Ed.2d 180 peachment material created a reasonable (1993). ante, Maj. Op., 16. In 134-35 n. accuracy doubt as to ‍​​​‌​​‌‌‌‌‌​​​​​​​‌​​​​‌‌​‌‌‌‌​​‌​​‌​‌‌​‌​‌‌​​‌‌‍the of Duopo’s identi- fact, majority it is the that refuses to take Agurs, fication. See 427 U.S. at case, counsel of that which makes wise (“[I]f omitted evidence cre- apparent materiality that must be assessed ates a reasonable doubt did not other- here, retrospectively requires taking exist, wise constitutional error has been —and guilty plea Poventud’s into account. Fret- committed.”). subsequent Poventud’s well an involved ineffective assistance however, plea, imma- establishes the out, claim. Judge points As Jacobs teriality of the nondisclosure categorically. claims, prejudice component of such as contrary position, And to the majority’s Washing first articulated in Strickland there is no constitutional error from the ton, 104 S.Ct. 80 nondisclosure of immaterial evidence—evi- (1984), courts, L.Ed.2d 674 in de requires nothing dence does than in- more con termining lawyer’s whether defense crease odds at irrespec- defendant’s deprived duct has a defendant of Sixth his overriding tive of “our concern with the rights, Amendment to undertake a retro justice finding For, of guilt.” Id. spective with inquiry —as —into again, once statement of a constitu- “[t]hat produced whether an asserted error has tional materiality standard of approaches Fretwell, an unreliable result at trial. In ‘sporting justice’ theory which the Supreme Court declined to consti find expressly rejected Court in Brady.” Id. at tutional error trial counsel’s failure to 108, 96 S.Ct. 2392. objection that, raise an as Justice O’Con- concurrence, nor her “very said well Judge As

may principal have been been Jacobs’s dissent sustained had it which, clear, trial” easily raised at but the time the makes this case is resolved up question, “wholly Court took with a faithful application Heck. For under governing meritless current law.” the majority while assures Heck us that Fretwell, 506 U.S. at 113 apply does not because “a judg- favorable ap Court determined that it was not § ment in this action not ren- would propriate to assess the effectiveness of “plea-based judg- der invalid” Poventud’s counsel “under existing the laws at the ante, ment,” Maj. is Op., wholly this time of trial” such an approach because the point. beside Heck not bar does would “grant the defendant a windfall § actions that convic- invalidate state which law does not entitle him” and be tions, but a plain- those where success in inconsistent with the focus of Strickland’s damages necessarily tiffs suit would im- prejudice component the reliability on conviction, his pugn implying extant state 369-71, fairness of the result. ultimate Id. at Kato, invalidity. its See Wallace v. (majority opinion). S.Ct. 838 384, 393, U.S. 166 L.Ed.2d (2007) here, that the bar

Similarly (noting ap- Heck guilty plea, § plies necessarily where attesting to the 1983 claim would accuracy Duopo’s identi- conviction). an assailant, “impugn” fication of extant Poventud Poventud as fore- prove Brady-based closes Poventud’s cannot the elements of his immateriality Lynch’s claim claim—cannot establishing prove, Judge words, provide undisclosed evidence as a matter of that the failure to Poventud impeachment law. Vacatur of Poventud’s trial convic- with the omitted material acknowledges, majority As the fact-finding process— trial’s corrupted the en to decide a differ- that the nondisclosed convened banc establishing Court without do today. To material. the one it reaches evidence ent issue from impeachment that consid- this, establish Judge must I concur in Jacobs’s regret, With whole, the omitted as a ering record here majority’s forecast effort creates a reason- material impeachment respect to the we do decide will with issue Duopo’s he as whether able doubt for district courts prove nearly impossible 112, 96 Agurs, assailant. See faithfully jurispru- Heck apply. Our materiality has (noting S.Ct. 2392 our efforts to will suffer. So will dence “if the omitted been established identify rectify Brady error. —and — doubt that did a reasonable creates rep- today, progeny and its Until exist,” considering the record otherwise safeguard, imperfect, resented a however whole). words, he must draw a In other justice. miscarriage of See against veracity of his into question impugn—the — Bagley, at 473 U.S. S.Ct. circumstances, In such plea. own (noting Brady’&purpose is “to ensure clearly applies. Heck bar not oc- miscarriage justice that a does case, however if this were not the Even cur”); at Agurs, accord 427 U.S. (and is), Brady certainly Poventud’s it (observing materiality stan- S.Ct. Judge claim fails the merits. still on overriding our concern dard “must reflect one Lynch says who “[n]o finding of justice guilt”). of the with there know for certain whether will ever In this Circuit—at until such time as least rob- in the participated Marcos Poventud in- today’s Brady error is corrected — Op. of bery Concurring Duopo.” of Younis being to right recompense stead the for ante, affording Judge at 143. But Lynch, commit opportunity perjury denied the to ordinary legal guilty its plea successfully. more (existen- no certitude requires effect such otherwise), take tial but that we APPENDIX Po- himself his solemn word.

Poventud stated, entering has ventud COURT UNITED STATES DISTRICT He plea, he committed crime. OF NEW SOUTHERN DISTRICT and, deny could continued to it if have YORK proceeding, in his court successful state Plaintiff, POVENTUD, MARCOS damages to pursuant thereafter sued for guilty, § Having plead chosen -against- however, pled has also himself YORK; OF DANIEL TOO- CITY NEW Brady-based out claim of his ROSADO, HEY, “FRANKIE” CHRISTO- immateriality of the establishing the utter DOLAN, PHER and KENNETH UM- pro- impeachment evidence that was not LAUFT, Individually and as Members holding trial. otherwise—in duced аt In City Department, the New York Police it both permitting Poventud have Defendants. ways adopts “sporting majority —the materiality approach chance” SECOND AMENDED COPMPLAINT has re- Supreme expressly that the Court jected. Brady, See 339(DAB)(THK) Index 07 Civ. No. be- (rejecting approach such an Plaintiff MARCOS POVENTUD dignity neath “the constitutional (“Plaintiff’), attorneys, & by his ROMANO right”). KUAN, PLLC, STATEMENT LAW OFFICES OF JURISDICTION RUDIN, complaining B. OF JOEL mentioned, 3. At all times herein Plain- Defendants, respectfully alleges, upon in- Bronx, tiff was a County resident belief, formation and as follows: City and State of New York. 4. Defendant CITY YORK OF NEW NATURE OF ACTION (“Defendant CITY”) corpo- is a municipal existing ration by virtue laws of the action, pursuant 1. This is a civil State of New York. v. Maryland, U.S.C. 1983 and 83, 83 10 L.Ed.2d 215 agency The NYPD is an of the De- (1963) ”), monetary (“Brady seeking dam- CITY, fendant and all police officers and ages wrongful attempted for Plaintiffs detectives referred to herein were at all conviction, and robbery murder and im- times complaint relevant em- its years, prisonment approximately seven agents. ployees and during repeatedly which he was assaulted 6. Defendant DANIEL TOOHEY sexually physically, and traumatized. (“Defendant TOOHEY”), Tax No. I.D. 888030, was at all relevant times detec- 2. The Defen- above-named Individual employed by tive the NYPD. He is named dants, City detectives, police all New York here in his official and individual capaci- caused Plaintiffs unconstitutional convic- ties. imprisonment by tion subsequent and de- liberately suppressing exculpatory evi- 7. Defendant “FRANKIE” ROSADO dence, material,” “Brady known as and (“Defendant ROSADO”), Tax I.D. No. lying to misleading prosecutors. also and all was at relevant times a detec- The suppressed material consisted employed by City tive the New York Po- of an erroneous identification the victim Department. lice He is named in his here crime, of the who prosecution’s was the capacities. official and individual witness, sole identification of a man who 8. Defendant DO- CHRISTOPHER in prison was when the crime commit- was (“Defendant DOLAN”), LAN Tax I.D. No. police cover-up ted. The deliberate of all was at relevant times a detec- evidence, police such as well as the lies employed by City tive the New York Po- prosecutors deny- detectives told the when Department. lice He is named here in his ing undisclosed identification had capacities. official and individual occurred, awas substantial and proximate 9. Defendant KENNETH UMLAUFT cause of Plaintiffs his horri- conviction and (“Defendant UMLAUFT”), Tax No. I.D. ble experiences prison which followed. 881484, was at all relevant a times detec- liable, City The of New York is pursuant employed by City tive the New York Po- City to Department Monell Neiu York Department. lice He is named here in his Services, Social capacities. official and individual (1978), 56 L.Ed.2d 611 for the delib- erate indifference of policymaking officials 10. At all times material this Com- City at the New York Police Department De- plaint, the aforementioned individual (“NYPD”) violations, to such constitutional fendants acted toward Plaintiff under color statutes, ordinances, customs, which was a of the substantial cause of the wrongdoing usage City that occurred. of the of New York. State presence in UMLAUFT’s Duopo, TO ALL 20. COMMON

ALLEGATIONS signed photocopy request, and at his OF ACTION CAUSES identification card. Francisco Poventud’s Shooting Investigation NYPD 21. consistent with This was Duopo Younis which a is asked under witness procedure, crimi- underlying in the 11. The victim photograph next sign name livery named cab driver nal case was a positive identification. indicate attempt, During robbery Duopo. Younis identification, Defen- Following 22. approximately head at shot in the he was TOOHEY, ROSADO, DOLAN and dants passengers two p.m. on March Defendants”) (the “Individual UMLAUFT of his in the back seat cab. who were was in- that Francisco Poventud learned but survived. Duopo hospitalized was shooting, carcerated on the date livery vouchered Duopo’s 12. cab was not have one of the therefore could been Crime Scene Unit by trained NYPD men involved. (“CSU”) detectives. Defendants, con- 23. The Individual job It of these detectives to 13. training to the official trary to their taxicab for and to secure all search the Depart- City of the New York Police policy related to the possibly physical ment, prepare any report failed to crime. attention to the erro- would reveal or draw identification. but neous They fingerprints, found They found a hat were Plaintiffs. none to turn to Having nowhere else shell, spent and a but this evidence also case, Detectives “close” the Individual Plaintiff. not linked to investigate Francisco Poven- decided members, Plaintiff, including family tud’s work, the CSU finished its 15. After brother. who is Francisco’s that he claimed found Defendant ROSADO on wallet the floor the a blue canvas crime, At time of Plaintiff 25. the the livery passenger Duopo’s front seat cab. brother, not resemble his physically did nor did Plaintiff resemble Francisco he had searched 16. This area been and identi- depicted photograph was in the old detectives, who CSU photographed fied Duopo. such wallet. did find Nevertheless, 12, 1997, 26. on March that Defendant ROSA- 17. The wallet to the the Individual Defendants went hos- to have found contained two DO claimed array a Duopo photo and pital showed of a man photo old identification cards and photograph, included five Plaintiffs Poventud, nothing and named Francisco “fillers.” else. any identifica- Duopo 27. did not make UMLAUFT, sergeant 18. Defendant tion. charge was in of all the detectives

who investigation, on the working day, on the eve- on 28. next March The Francisco ning of March showed to the the Individual Defendants returned one of picture, photo array. taken from hospital with the same cards, to Duopo. identification in photos Duopo 29. looked not make an identifica- array again Poven- did identified Francisco Duopo 19. tion. tud as one of his assailants. Following arrest,

30. The Individual Defendants indicat- 39. his Plaintiff vol- untarily Miranda rights in waived his report “negative ed this was videotaped made a police. statement result.” said, substance, 40. He in that he had following day, 31. The on March been playing games neighbor’s video at a again the Individual Defendants re- apartment crime, at the time of the hospital, turned to time with a this new provided the names of alibi witnesses. photo array. again It a photo- contained 41. Upon belief, information and Plaintiff, graph of but five different fillers. Individual investigate Defendants did not Thus, 32. Plaintiff was the individ- alibi, this simply proceeded but with pro- depicted photo ual in more than identi- one cessing Plaintiff’s arrest. fact, procedure photo fication —in 23, 1997, 42. about On or March in all three. days Duopo after the shooting, police ap- prehended three men for a gunpoint rob- photo array proce- 33. After the third bery livery of a cab driver committed in a dure, time, Duopo, the first identified similar robbery manner as the Duopo Plaintiff perpetrators. as one of the general vicinity the same in the Bronx. identification, Following 34. 43. gun Ballistics tests with used Defendants, Individual under the direction that robbery conclusively established that UMLAUFT, caused criminal charges to it weapon was the same had been against be filed Plaintiff robbery for the Duopo. used to shoot shooting Duopo. Martinez, 44. gunman Jesus They also searched Plaintiff’s resi- second robbery, compared when with the dence, but no linking found him appearance of the other two men arrested to the crime. him, closely with most resembled the de- scription provided by of the shooter Duo- police theory apparently po. that Plaintiff had dropped somehow 45. Rather than take the risk Duo- containing wallet his brother’s identifica- po identify would Martinez and undercut tion cards onto the floor near the front Plaintiff, their against case police did not taxicab, passenger seat the victim’s even Duopo show photo array Martinez though robbery was committed from or a lineup. the back and the perpetrators seat had no display all, Instead, reason to 46. on April police the wallet at and despite Duopo, showed who knew that an arrest any the absence of evidence that photo had been after his identifica- Plaintiff made carry would his brother’s wallet Plaintiff, tion a lineup containing of Plain- or identifiсation cards. tiff. Unsurprisingly, Duopo identified 37. fingerprints Police found no or Plaintiff. DNA on the or evidence wallet the cards 47. The knew Individual Defendants link to Plaintiff to these items. that Duopo’s misidentification Francisco of

38. The also no police had evidence highly relevant to the Bronx dropped the wallet had during Attorney’s been District evaluation of the robbery, the opposed Plaintiff, as to at some other strength against of the evidence time. grand jury’s to the decision whether to police result the

indict, to 53. As further to court’s decision whether the the mis- cover-up of Francisco Poventud bail, the deci- to court’s grant reasonable identification, con- court was misled the to an Duopo make permit to sion whether the against the case cerning strength identification, to the ultimate and in-court high set bail of prohibitively Plaintiff and jury trial whether to at decision of the $100,000, to causing Plaintiff be incarcerat- convict Plaintiff. ed until trial. knew Defendants The Individual 48. Proceedings The Trial required by policies, the they were indictment, Following Plaintiffs 54. NYPD, of the procedures practices, specific request counsel made Plaintiffs Attorney’s District the Office and of Bronx to disclose whether prosecution the [“BDAO”], all out-of-court iden- to disclose anyone than had “identified other witness han- prosecutors procedures tification or as perpetrators defendant codefendant prosecution, so that such dling the criminal “all charged,” of the crimes to disclose timely be disclosed to the procedures could may ... information which defense. by an exculpate tend to defendant either required to were make such They 49. innocence, by potential indication of his the D.A.’s Office the time disclosure to by impeachment of a witness be called prosecution, meaning Attorney of the initiation within the District of evidence to the presentation Brady Maryland, time of the (1963) Peo trial. 10 L.Ed.2d 215 jury, prior to grand and/or Rosario, N.Y.S.2d ple v. N.Y.2d Nevertheless, Individual Defen- 50. (1961).” 448, 173N.E.2d 881 inform the BDAO of the did not dants rule, Brady disclosure 55. Under the misidentification, be- Francisco Poventud continuing obligation prosecution has fore, In- after Plaintiffs trial. during, or favoring information disclose material deed, BDAO to when disclose asked possession, criminal defendant procedures out-of-court identification all custody Attor- or control District investigation their during utilized ney’s especially where police, Office or the matter, Individual Defendants essen- such demands specifically defendant tially disclosing lied all but the Francis- disclosure. procedures. co Poventud identification case, pros- specific-demand In a arrest, again after Plaintiffs 51. Weeks likely mis- failure to disclose ecutor’s suggestive in- utilizing highly photo and such assuming into lead the defense procedures, police identification person exist, pros- and thus the evidence does not Duopo identify caused Robert Maldona- height- obligation is ecution’s disclosure Plaintiff, do, relationship no with who had ened. perpetrator. second Maldonado addition, under Ro- In the related was arrested. rule, an obli- prosecution the has sario As of police cover-up 52. a result of the prior the all gation to disclose to defense misidentification, the Francisco Poventud each its trial statements of of recorded grand jury deprived witnesses, the was essential the accused so that counsel for Duopo’s information with which to evaluate such statements may determine whether witness, to on the witness’s reliability may an identification and be used cast doubt as testimony. Plaintiff indicted. and Maldonado were prosecutor handwritten notation on 65. The Duopo’s hearing

58. the and the trial was copy photograph Attorney of Francisco Poventud’s Assistant District Gregg [“ADA”] him was a Turkin. mistakenly identifying “state- ment” that had to be under Ro- disclosed trial, Prior during 66. to and the Indi- Brady. sario as under as well evidence, vidual Defendants reviewed the including police the investigation, with However, 59. as a of the police result Turkin, ADA did but still not reveal to him the cover-up of Francisсo Poventud mis- Francisco photo Poventud identifica- identification, the BDAO did not know procedure tion and misidentification. about, defense, and did not to the disclose Duopo’s misidentifying Fran- “statement” Indeed, they 67. deliberately misled cisco Poventud. that, believing ADA Turkin into since was Francisco Poventud incarcerated though 60. was so This even the Indi- committed, they when the crime was had vidual was Defendants knew court to, not, no fact reason and in did conduct holding pretrial hearing, which several any procedure containing identification his testified, concerning them the lawful- photograph. procedures ness of the identification used During 68. the prosecution Duopo’s with Duopo whether in-court did not disclose to Plaintiff or to de- out-of-court identifications Plaintiff fense counsel the Francisco Poventud sufficiently to Maldonado were reliable photo procedure, identification Duopo’s permitted be in evidence. photo, identification of Francisco’s or the 61. The Individual Defendants knew anything existence of written by Duopo Duopo’s misidentification Francisco concerning such proce- an identification highly would be relevant to dure. hearing. court’s determination of such “against” 69. The evidence Plaintiff at Indeed, hearing, 62. at the the court trial extremely limited: it consisted expressed repeated concern that the show- solely Duopo’s testimony identifying ing of Marcos Poventud’s to photograph him, alleged discovery well as the of his Duopo during photo the three identifica- old brother’s wallet and identification procedures unfairly tion suggestive in the of the passenger cards front area ability questions Duopo’s raised about livery taxi. reliable, to make a in-court identification. physical Plain- 70. No evidence linked tiff to the crime. though 63. Even the court re- then quired prosecution present Duopo 71. There un- was substantial evidence as a his independent witness establish dermining reliability identi- Duopo’s ability reliable, to make a in-court identifi- First, testimony. jury fication learned cation, police suppress continued Duopo Plaintiff identify had failed Francisco Poventud evi- identification photo arrays contain- during first two dence, causing prosecution to fail ing likeness. disclose it. Second, jury, in front right result, court Duopo As a ruled that misidentified co-defendant Robert in- Duopo would be to make an as one of his assail- allowed Maldonado’s brother court identification of Plaintiff. ants. cause of Plaintiffs Meanwhile, testimony- proximate stantial and Duopo’s

73. contradicted conviction. was identifying Plaintiff in testified case. Plaintiff the defense 1998, the court sen- 82. On June crime time of the he behalf that the own Plaintiff serve an indeterminate tenced vid- apartment playing a neighbor’s was at years prison. sentence of to 20 watching movies. and games eo conviction, Plaintiffs 83. At the time of gave witnesses also defense 74. Several old, never years he had been was alibi. testimony this supporting before, slight of build. prison and was addition, presented In the defense 75. The Defendants knew of 84. Individual to shoot weapon the used Plaintiff. these characteristics of posses- the Duopo had been recovered They knew that individuals 85. also men, a similar during other sion of three likely were with Plaintiffs characteristics just days after the robbery attempt, sexually to be assaulted physically robbery. Duopo City jails New in New York York “reliability” of Duo- purported The 76. security prisons. State maximum Plaintiff, of as well as po’s identification appealed his 86. Plaintiff convic- While investiga- of the professionalism police the tion, continued the Individual Defendants Duopo’s identifica- who obtained tors had BDAO, knowledge to withhold from defendants, key were the is- of tions defense, of Duopo’s and therefore from the their during both sides sues addressed Poventud. misidentification of Francisco jury. arguments to the closing appeal was denied. See 87. Plaintiffs knowledge Even without 77. Poventud, People v. 300 A.D.2d misidentification evi- Francisco Poventud (1st 2002), Dep’t N.Y.S.2d 654 leave dence, or the Individual Defendants’ denied, 775 N.Y.S.2d appeal N.Y.3d it, initially it cover-up jury said was (2003). N.E.2d 907 deadlocked. Discovery The Violation day of the third morning 78. On the and Vacatur of Plaintiff’s Conviction deliberations, requested a jury “read April 88. the New York On complain- back” of the detectives’ Appeals Court of reversed co-defendant testimony regarding “negative ant’s conviction, and Robert Maldonado’s direct- 13, 1997, photo the March results” from People ed be retried. See that Maldonado photo. array involving Plaintiffs Maldonado, 522, 743 97 N.Y.2d N.Y.S.2d evening, jurors 79. That stated (2002). 389, 769 N.E.2d 1281 they “hopelessly deadlocked” with were in late 89. At the retrial held regard both defendants. Duopo’s ability make a reliable identifi- Nevertheless, the court after re- 80. again principal issue. cation was deliberating continue them to quired retrial, By the time this either jury a verdict days, more returned two BDAO lost the NYPD or the had somehow against both defendants. Francisco destroyed original Poven- failure to disclose prosecution’s tud identification cards. of Francisco Po- Duopo’s misidentification assigned to ventud, cover-up prosecutor 91. A new police as the well evidence, case, Jeremy D.A. Assistant Shockett. concerning sub- lies 92. as a any writings He offered substitute identification and it regarding (hereinafter original photocopy one of them. referred to “Brady cards a as the ma- terial”) years at his trial six before. photocopy illegible 93. The contained 6, 2004, 103. On December and Plaintiffs handwriting, date time— assigned counsel filed a CPL 440.10 mo- hrs.” “3/10/97 tion to vacate conviction. The motion Contending 94. that handwriting that, at asserted the time of Plaintiffs trial case, irrelevant to the was Shockett made Plaintiff attorney and his were not application permission an to the court for told, know, not did the Brady about writing photocopy. to redact the from the material, though even the defense spe- had objected, 95. The and the court defense cifically requested just disclosure of request. denied the type of evidence. attorney 96. Maldonado’s demanded to 104. responding motion, Before to this significance know the of the handwriting. ADA Shockett interviewed UMLAUFT. 97. After speaking with UMLAUFT 105. UMLAUFT lied to Shockett. learning for the first time what the UMLAUFT claimed that he had told then meant, handwriting Shockett then revealed Turkin, ADA during Plaintiffs trial to the handwriting defense was about the material. Duopo’s and concerned a mistaken identifi- 106. UMLAUFT lied by further stat- cation of Francisco Poventud. that, ing direction, at Turkin’s he had dis- UMLAUFT, 98. during his testimony, closed the Francisco Poventud identifica- tried to minimize the impact this evi- procedure tion lawyers to defense during by falsely claiming Duopo, dence from an hallway informal conversation. bed, his hospital simultaneously had writ- 107. result lies, As a of UMLAUFT’s stating ten note photograph Shockett and the oppose BDAO decided to merely “looked like the guy.” They Plaintiffs motion. submitted court However, 99. even though UMLAUFT papers, including UMLAUFT’s false affi- note, knew that such any davit, as recorded any denying withholding of evidence Duopo, absolutely statement any re- under and delaying court deci- to sion quired preserved hearing. be and to be until after disclosed material, to defense Rosario he 108. At evidentiary hearing an held on produce could not it. 15, 2005, June UMLAUFT false gave testi- mony one, repeating what he had told ADA UMLAUFT, 100. No aside from ¶¶ 105-106, supra. Shockett. See has ever such claimed have seen a note. lawyers The defense for Plaintiff time, acquitted jury This Mal- Robert co-defendant Maldonado de-

donado. nied under oath that UMLAUFT had 25, 2004, Plaintiff, 102. On March who made disclosure to them of the Brady indigent, requested, and the court material. thereafter agreed, assign counsel for 110. The BDAO did call Turkin motion, him to prepare pursuant and file a testify at all. 440.10, N.Y. Criminal Procedure Law ground vacate his conviction on the 111. In a decision October dated J.S.C.) prosecution had impermissibly (Hunter, failed to the court credited attorneys disclose to him the Francisco Poventud defense over UMLAUFT (9)Suffered wages permanent and failure to lost prosecutor’s the and held that earning capacity; impairment of information written and docu- turn over and Duopo’s misidentification ments regarding Plain- (10)Incurred Poventud had violated of Francisco items of attendant other rights Brady. damages. under tiffs constitutional con- vacated Plaintiffs 112. The court OF ACTION FIRST CAUSE Poventud, 10 People v. viction. See (42 1983; Denial Due Of U.S.C. (Sup.Ct. 802 N.Y.S.2d Misc.3d Trial; And A Fair All Process Co.2005), hereto as Exhibit annexed Bronx Defendants) Individual Police A. realleges repeats Plaintiff and 115. ruling, Plaintiff the time of its 113. At every allegation each and contained more than been incarcerated seven had fully set through as if paragraphs of, a direct years following, and as result forth herein. unconstitutionally-obtained conviction. his Prior to Plaintiffs conviction 116. Damages thereafter, Injuries the Indi- continuing and and Plaintiff’s Defendants, and acting individually vidual direct, rea- proximate, 114. As a and and with one anoth- conspiracy concert sonably consequence of foreseeable about, er, up, prosecutors lied to covered defendants, by the aforementioned actions knowledge and from the BDAO withheld plaintiff: of, “Brady and Plaintiff material.” (1) and federal Was denied his state knew Defendants 117. Individual liberties; and rights constitutional duties, they had under United States (2) subjected forc- repeatedly to Was regu- as as the and well laws Constitution at knife-point ible sexual assaults City of New of the State and lations otherwise, including anal and and (a) Brady to York, to material disclose sodomy, beatings; physical oral and latter the BDAO so that the could disclose (3) further traumatized wit- Was caused it to the defense and would not be physical assaults nessing sexual and conviction of Plaintiff bring to about the inmates; on other false, misleading, incom- upon based (b) plete argument, under evidence and (4) that he tried to distraught soWas case, of this to dis- unique circumstances himself; kill Brady directly material close the (5) mental, emotional, Suffered severe (c) defense, make state- truthful and/or distress, including sui- physical and prosecution concerning ments to feelings; cidal not to Brady material and existence (6) and permanent Suffered mental or continue Plaintiffs unconstitution- cause harm; emotional injuries by ly- al and -resultant conviction (7) opportunity pur- Was denied the ing about such evidence. relationships and sue normal with their Notwithstanding awareness fami- enjoy companionship Defendants, duties, the Individual their Mends; ly members and to, during, Plaintiffs prior following

(8) shamed, publicly disgraced, recklessly, trial, intentionally, Was with and/or obli- legal and humiliated and suf- to their

ridiculed deliberate indifference material gations, concealed damage reputation; fered about, from, to spirators and otherwise failed un- accomplices, lied known and known, to, directly, substantially, proximately, the BDAO disclose the material foreseeably brought about Plaintiffs and Plaintiff. conviction, imprisonment his until such They knowledge did so with vacated, time conviction and his in the their conduct would result injuries damages. other jury being provided misleading a false or 123. The foregoing violations of Plain- picture Duopo’s reliability as an of identi- rights tiffs amounted to Constitutional thoroughness, fication witness and of the torts and were affected actions taken honesty, professionalism police and under color of State law. investigation, thereby and would substan- 124. forego- Defendants committed the tially of a increase likelihood convic- ing of rights knowing- violations Plaintiffs tion, in of Plaintiffs violation federal con- ly, intentionally, willfully, recklessly, negli- rights. stitutional gently, with deliberate indifference and/or 120. After Francisco Poventud mis- to Plaintiffs rights constitutional or to the identification evidence revealed upon effect of such misconduct Plaintiffs retrial in Maldonado Defendant UM- rights. constitutional sought up perpetuate LAUFT cover and By 125. reason all foregoing, of the defendants’ individual and collective Individual are Plain- Defendants liable to wrongdoing, and caused the continuation tiff, pursuant to 42 com- U.S.C. for of illegal imprisonment Plaintiffs re- and pensatory and punitive damages. damages, by falsely sultant telling the BDAO, false submitting affidavit SECOND CAUSE OF ACTION giving testimony, false that he dis- had (Monell Against U.S.C. 1983: Clаim /42 Brady closed such material to defense City Defendant of New York For counsel at Plaintiffs trial. NYPD) The Actions Of The operated The aforesaid conduct realleges 126. Plaintiff repeats deprive rights Plaintiff of his under the every allegation each and contained Constitution and the of Laws the United fully if paragraphs through set timely States to disclosure of all material forth herein. pursuant evidence favorable to the defense arrest, Prior policy- to Plaintiffs to Brady Maryland, v. NYPD, making including officials at the 1194, 10 (1963), S.Ct. L.Ed.2d Giglio City but not limited to the New York States, United Commissioner, with indif- Police deliberate (1972), 31 L.Ed.2d 104 and their progeny, rights to the of indi- ference constitutional punished and to not be convicted or based suspected charged crimi- viduals of or with upon government’s knowing use activity, nal implemented or tolerated misleading testimony false or argument, or plainly inadequate policies, procedures, all in violation the Due Process Fair customs, regulations, practices, training, Fifth, Sixth, Trial Clauses of the and Four supervision, discipline concerning and/or teenth Amendments to the United States investiga- duty police the constitutional Constitution. timely tors to make Dis- disclosure to the foregoing

122. The violations of Plain- Attorney trict the defense of and/or tiffs rights by material, federal constitutional provide truthful information to crim- prosecutors knowledge Individual Defendants and their co-con- about their conducted, policymaking 130.The aforementioned they have investigations inal properly had the need to officials notice of truthfully, accurately, and testify and to train, instruct, discipline supervise and/or during proceedings criminal completely regard with to their aforemen- employees investigations. concerning such obligations based tioned constitutional ma- above-mentioned 128. The upon, among other circumstances: to, included, limited but was terial a) many allegations, numerous credible innocence, an evidence that decisions, judicial substantiated unreliable, and evi- identifying witness was wrongfully police officers had credibility signifi- impeaching dence withheld, lost, destroyed evidence or prosecution cant witnesses. they favorable to the defense timely disclose required had been procedures, policies, 129. The aforesaid un- prosecution to the the defense (in- customs regulations, practices and/or (see B, Brady Ex. der and Rosario instruct, cluding properly failure to the appended incorporated hereto and train, discipline employ- supervise and/or reference, of by listing some herein thereto) regard implement- with were ees decisions); judicial those by officials policymaking or ed tolerated b) lawsuits, of numerous civil some York, City of New in- for the Defendant in substantial civil set- which resulted to, the York cluding but not limited New tlements, fal- police that had alleging Commissioner, City who knew: Police sified, or evi- exaggerated, withheld a) certainty poli- that such to a moral dence, thereby improperly causing cies, regulations, prac- procedures, sus- injuries unlawful to individuals concern issues tices customs (see C, and/or append- of pected crimes Ex. investiga- in the regularly that arise by incorporated hereto herein ed and of prosecution and criminal reference, tion law- listing some of those cases; suits); c) of numerous decisions the United b) present police that such issues either Court, Supreme the United States of with difficult choices employees Appeals for the Sec- States Court of instruction, training that sort Circuit, New of ond York Court make supervision will less dif- and/or Appeals,, Appellate the New York and ficult, need for further Division, discussing is- the difficult instruction, training, supervision under the regularly sues arise discipline demonstrated and/or Brady rule; history employees of mis- by police d) criticizing judicial directly decisions handling by such and situations failing train and the NYPD for to employees have police incentives supervise officers their obli- wrong make the choice in such to failing adopt ade- gations and for to situatiоns; and see quate Brady policies, disclosure c) by such em- wrong choice Harrison, F.Supp. Carter ployees concerning such issues will (E.D.N.Y.1985) D.J., (McLaughlin, deprivation frequently cause adopting Report Recommen- and rights the constitutional criminal A. then-Magistrate dation Shira Scheindlin), or defendants and cause the NYPD suspects putting and City held injury. on notice that the could be them constitutional Plaintiff, adequately they liable for its failure to to which knowingly and in- breached, tentionally investigators train officers and or to police they which indifferent, deliberately implement were their and truth-tell- to regarding policies, procedures, customs, practices, City ing obligations, see Walker v. training, discipline York, (2d sufficient to de- 974 F.2d Cir. and/or New to prevent ter and conduct his subor- 1992), Harrison, supra; and Carter v. dinates which violates aforementioned e) 7, 1994, report July dated follow- constitutional rights suspects criminal of a ing highly-publicized hearings, or defendants and of other members City investiga- blue-ribbon New York public. police tion into misconduct known Commission,” constitutionally 134. The in- aforesaid the “Mollen and adequate policies, procedures, regulations, f) the inherent obviousness of the need customs, practices, training, disci- and/or train, supervise discipline po- pline of or by Defendant City obligations lice officers in such NYPD were collectively individually pressure counteract the on officers substantial factor in bringing about the cases obtain close and to convictions aforesaid violations Individual Po- powerful they and the incentives have lice Defendants of Plaintiffs rights under discard, record, ignore, fail the Constitution and Laws of the United fail favoring to disclose evidence States. suspect criminal or defendant. By foregoing, 135. virtue of the Defen- 131. principles municipal Under the of City of dant New York is liable for having violations, liability rights for federal civil substantially foregoing caused the viola- (or the City’s Police au- Commissioner his rights tions of Plaintiffs constitutional and (and has) delegates), thorized final had injuries. constitutional responsibility training, for instructing, su- police pervising, disciplining personnel and THIRD CAUSE OF ACTION with to respect investigation pros- and (Defendant City Neg- New York matters, ecution of criminal con- including ligent Hiring, Training, Supervision, requirements stitutional with respect to Claim) Discipline; And Pendent disclosure of material giving of truthful repeats statements and testimo- Plaintiff realleges 136. ny during proceedings. criminal every allegation each and contained in hereby in- paragraphs through Commissioner, 132. The Police person- corporates though fully them as set forth ally through his authorized dele- and/or herein. gates, at all au- relevant times had final timely 137. Plaintiff filed Notice of thority, City policymaker and constitutes a Comptroller City Claim with the liable, City for whom the to respect with York on 2006. New March by compliance employees of the NYPD with the above-mentioned constitutional York Hearings pursuant 138. to New requirements. Municipal General Law 50-h were by City waived Defendant of New York. During

133. all times material to Complaint, policymaking By officials for Defen- foregoing, virtue of NYPD, including, City the Police Commission- dant of New York is liable Plaintiff er, duty injuries negli- owed a public large grossly and for his because its York, New York careless, Dated: New negligent, reckless

gent, and/or hire, train, properly failure deliberate May 6, 2011 supervise agents, its ser- discipline, and/or City To: Corporation Counsel by the employees employed vants and/or New York NYPD, the Individual Defen- including dants, aforementioned regard their with

duties, reasonably foreseeable and was a injuries suffered

proximate cause

Plaintiff. TRIAL DEMAND

JURY The BRONX HOUSEHOLD OF WHEREFORE, judg- Plaintiff demands FAITH, Hall, and Robert Jack against the Defendants follows: ment Roberts, Plaintiff-Appellees, damages in an compensatory a. For determined; amount to be THE BOARD OF OF EDUCATION against damages punitive

b. For CITY OF YORK and Communi- NEW to be Defendants in an amount Individual ty District No. Defendant- School determined; Appellants. fees, attorneys’ to- c. For reasonable disbursements, pur- costs and gether with Docket No. 12-2730-cv. to 42 1988 and the inher- suant U.S.C. Appeals, United States Court Court; powers ent of this Second Circuit. al- For interest as pre-judgment d. Argued: Nov. law; lowed April Decided: other and further relief as e. For such ‍​​​‌​​‌‌‌‌‌​​​​​​​‌​​​​‌‌​‌‌‌‌​​‌​​‌​‌‌​‌​‌‌​​‌‌‍may just deem and proper. this Court KUAN, PLLC

ROMAN AND P. Kuan

/s/Julia 3822) Kuan, (JK Esq

BY: Julia P. Street, Lafayette Suite York, York,

New New

(212) 274-0777 B.

LAW OF JOEL RUDIN OFFICES Joel B. Rudin

/s/ 5645) (JR Rudin, Esq.

BY: Joel B. Street, West 57th Suite York, York

New New

(212) 752-7600

ATTORNEYS FOR THE PLAINTIFF

Case Details

Case Name: Marcos Poventud v. City of New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Jan 16, 2014

Citation: 750 F.3d 121

Docket Number: 12-1011-cv

Court Abbreviation: 2d Cir.