Hyman v. Brown

197 F.Supp.3d 413

Tullie HYMAN, Petitioner,

v.William D. BROWN, Superintendent, Eastern Correctional Facility, Respondent.

10 CV 4065 (RJD)

United States District Court, E.D. New York.

Signed July 13, 2016

Mark Steven DeMarco, Law Offices of Mark S. DeMarco, Bronx, NY, for Petitioner.

John M. Castellano, Ranjana C. Piplani, Queens Coutny District Attorney's Office, Kew Gardens, NY, Kings County District Attorneys Office –Generic, New York State Attorney Generals Office – Generic, New York State Attorney Generals Office, for Respondent.

MEMORANDUM & ORDER

DEARIE, District Judge

TABLE OF CONTENTS

I. OVERVIEW ...416

II. "ALL THE EVIDENCE, OLD AND NEW ..." ...421

A. The Trial ...421

1. Openings ...421

2. Eyewitnesses other than Ellis ...422

a. Margaret Contreras and Shereda Freeman ...422

b. Lynn Burton ...423

c. Deborah McCoy ...424

3. Shaquana Ellis's Trial Testimony ...425

a. Direct Examination ...425

b. Cross-Examination ...427

4. Police Witnesses ...429

a. Ballistics ...429

b. Hyman's Statements; Recovery of the Mazda and the Acura ...431

5. Hyman's Grand Jury Testimony ...433

6. The 911 calls ...433

7. Defense Case ...434

8. The Jury Charge on Accessorial Liability ...434

9. Verdict ...435

10. Sentencing ...435

B. State and Appellate Post-Conviction Proceedings ...436

1. Direct Appeal ...436

2. First State Post-Conviction Motion ...436

3. The Second 440 ...437

4. Coram Nobis ...441

C. The Federal Habeas Proceeding ...441

1. Hyman's Case ...442

a. Shaquana Ellis ...442

b. Amanda Benitez ...447

c. Shaquana Delain ...451

d. Private Investigator Kevin Hinkson ...452

2. The Prosecution's Rebuttal ...453

a. Threshold Legal Concern ...453

b. The Prosecution's Rebuttal Evidence ...456

i. Whitmore's Statement ...456

ii. Joseph Howard ...458

III. STANDARDS AND FINDINGS ...459

A. Actual Innocence ...459

1. Generally ...459

2. The "Credible" Prong ...460

3. "Compelling" ...462

B. Ineffective Assistance of Counsel ...463

1. Legal Standard ...463

2. Analysis ...464

IV. CONCLUSION ...466

I. OVERVIEW

Since June 2002, petitioner Tullie Hyman has been in custody on his sentence of 21 years to life for his conviction of second-degree murder, weapons possession and reckless endangerment. The charges arose out of a multiple-participant shooting in front of an apartment building that resulted in the tragic death of an innocent bystander inside the building's lobby.

Before the Court is Hyman's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.¹ He claims that he was denied his Sixth Amendment right to the effective assistance of counsel because his attorney possessed strong exculpatory evidence but chose, because of a fee dispute with the investigator who produced the evidence rather than for strategic reasons, not to introduce it at trial. Recognizing that this claim is barred from federal review because the state court denied it in the first instance on state procedural grounds, Hyman also advances, in an attempt to lift the bar, a gateway claim of actual innocence premised on the consistent recants offered by Shaquana Ellis, the only witness to implicate him at trial.²

Indeed, outside the four corners of this infrequently invoked procedural claim, Hyman has steadfastly maintained his factual innocence since voluntarily surrendering to police the morning after the shooting more than sixteen years ago.

Hyman's petition presents an especially challenging state court record that raises concerns about his trial and post-conviction proceedings. Among other things, (i) as a factual matter Hyman's ineffectiveness allegation appears to be true—it is undisputed that his attorney failed to present key exculpatory evidence to the jury that would have undermined Ellis's credibility, and the proof is unrefuted that counsel did so because of a fee dispute with the defense investigator rather than for any reason that could be called "trial strategy"; (ii) Ellis's repeated disavowals of her trial testimony over the span of fifteen years, despite certain flaws, indeed ring true on the critical retraction—which means that she did not in fact witness the shooting as she testified at Hyman's trial; and (iii) the state post-conviction court where Hyman first presented each of these serious issues denied any form of relief, including the request for a hearing.

Certain facts are firmly established in the trial record: shortly after 7:00 p.m., on March 10, 2000, a shootout erupted in the middle of Hassock Street in Far Rockaway, Queens, in front of the apartment complex at 1540 Hassock, known as the Redfern Houses. Ballistics established that more than thirty bullets were fired from at least four different weapons and in several directions, as bullet damage was found on several empty cars parked in the street, in the lobby and a second floor apartment in the 1540 building, and in the Friendly Market located across the street from 1540. Maria Medina, on tenant patrol duty inside the 1540 lobby at the time, was struck by one of the bullets, crawled toward and then was helped into the nearby elevator for safety, and died within minutes. The type of bullet that killed Medina remains unknown.³

The shooting participants included two individuals standing along the fence in front of 1540—known to be codefendant Jonathan Whitmore and, mostly likely, Derek Harris, also known as Mark Antony, or Wiz—and two or more individuals in or near two cars double-parked in the middle of Hassock Street. Hyman admits that he was in the driver's seat of one of those double-parked cars, and it was the prosecution's theory at trial that the driver of the other car was the other codefendant, Osimba Rabsatt.

What has been extraordinarily difficult to resolve, however, is the single fact essential to the question of Hyman's guilt: Was he, as he has long claimed, the unarmed, intended victim of an ambush, or did he participate in the shooting?

Hyman did not testify at his trial. His version of events, however, was presented to the jury through the state's introduction of the several statements he made after his voluntary surrender, including written and oral statements to the police and his grand jury testimony. The only direct evidence against Hyman came from prosecution witness Shaquana Ellis, who testified that, from a third-floor window in 1540 Hassock Street, she saw Hyman's arm hanging outside the passenger window of a green Mazda, parked behind a red Acura, "fir [ing] off" gunshots. (T. 1551). Ellis said she saw "flashes" though not the guns, and despite the dark (it was after 7 p.m. in March), she also saw Hyman's face and hoodie, and was sure it was Hyman because she had known him since junior high. In her testimony, Ellis was specific in identifying her alleged vantage point (the window of a hallway on the third floor of 1540 Hassock) and the two individuals allegedly with her at the time (her friends Amanda Benitez and Shaquana Delain). Of necessity, the state showcased Ellis's testimony during summation and, not surprisingly, the deliberating jury asked to have it read back.⁴

Sometime after the verdict, however, apparently later that year (2002), Ellis began telling certain individuals that she had not in fact seen the shooting. Despite several half-starts, Ellis has stood by the essence of her recantation through numerous interviews—with a private investigator, Hyman's post-conviction counsel, Hyman's current habeas counsel, and even the Executive Assistant District Attorney of Queens County Charles Testagrossa, who traveled to Ellis's home in Virginia for that purpose, as part of a limited inquiry triggered by the current petition.

Ellis's most recent iteration of her recant came in the form of sworn testimony before this Court during the hearing on Hyman's gateway innocence claim, a unique vehicle that takes the Court into largely uncharted waters. Under the Supreme Court's standards, adjudication of an actual innocence claim requires that the Court first assess the credibility of the Ellis recant and other testimony offered at the gateway hearing, and then assess how a rational jury faced with the overall record as now supplemented would likely vote: more probing and comprehensive than traditional sufficiency-of-the-evidence analysis, this process requires the Court to re-weigh the entire state's case anew and even reopen issues of trial credibility.⁵

Should Hyman prevail on this claim, he will have succeeded only in lifting the procedural bar that frees the Court to address the merits of his substantive claim that his trial attorney was ineffective for failing to introduce exculpatory evidence. Adjudication of that claim will likewise entail an atypical jurisprudential expedition. Since the enactment of the Antiterrorism and Death Penalty Act of 1996 ("AEDPA"), most ineffectiveness claims that, like Hyman's, have been rejected in the first instance by a state court are, as a practical matter, "doomed," Tavarez v. Larkin, 814 F.3d 644, 647 (2d Cir.2016). Even the most compelling ineffectiveness claims, therefore, will test the outer limits of AEDPA jurisprudence and this Court's authority to entertain the application.

It did not have to come to this.

First, the falsity of Ellis's trial testimony could and should have been exposed at trial , because the exculpatory evidence that Hyman's trial counsel withheld from the jury went directly to the question of her credibility. Kevin Hinkson, a private investigator retained by defense counsel Scott Brettschneider, conducted a sight line study revealing that it was physically impossible for Ellis to have seen what she claimed from the third floor hallway. Hinkson gave Brettschneider his findings along with supporting photographs and a videotape, but Brettschneider did not call him at trial. The proof is unrefuted that Brettschneider declined to call Hinkson because of a fee dispute rather for any reason that could be called "trial strategy."

Second, the state courts had a clear opportunity to right Ellis's wrong, as compounded by Brettschneider's, before recourse...