The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.
Submitted: September 20, 2010
Before: NEWMAN and HALL, Circuit Judges, and RESTANI,*fn1 Chief Judge.
Application, pursuant to 28 U.S.C. § 2244(b)(3), for leave to file in the District Court a second petition for a writ of habeas corpus.
The pending motion for leave of this Court to file in a district court a second petition for a writ of habeas corpus presents an initial issue of whether the petition really is a "second" petition within the meaning of 28 U.S.C. § 2244(b). In this instance, that issue turns on the extent, if any, to which this Court should re-examine the correctness of a district court's dismissal of a previous habeas corpus petition as time-barred. The motion also presents the issue of whether the motion satisfies the standards for filing a second habeas corpus petition. These matters arise on a motion by Ruddy Quezada for leave to file a habeas corpus petition challenging the validity of his 1993 New York state court conviction for second-degree murder. We conclude that reexamination of an untimeliness ruling that was made with respect to a first habeas corpus petition may occur only in limited circumstances, that such circumstances are not present in Quezada's case, and that his current petition is properly considered "second." We also conclude that Quezada has made a sufficient showing to satisfy our "gate-keeping" responsibility under 28 U.S.C. § 2244(b)(3), and we therefore grant the motion for leave to file a second petition for habeas corpus relief.
Trial. Quezada was convicted of killing Jose Rosado. The State's theory of the offense was that Quezada shot Rosado from a moving car while attempting to kill John Delacruz, who had been involved in an altercation with Quezada earlier in the evening of the killing. The State's case was based primarily on the testimony of Sixto Salcedo, a friend of Delacruz. Salcedo testified that he saw the shooting and identified Quezada as the shooter. He was the only witness to do so. A police officer testified that Quezada admitted having had an altercation with Delacruz, during which each shot at the other, but that he also insisted that he had been inside a nearby building in the presence of others when Rosado was shot outside the building. The defense presented three witnesses who confirmed Quezada's version.
First habeas corpus petition. After a guilty verdict by a jury, sentencing, and direct appeal, see People v. Quezada, 218 A.D.2d 819, 631 N.Y.S.2d 59 (2d Dep't 1995), Quezada filed a habeas corpus petition on March 14, 1998, raising claims unrelated to the claims in the pending motion. That petition was dismissed as untimely under the one-year limitations period of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d). On appeal, this Court acknowledged that the petition was untimely, but remanded for consideration of Quezada's claim of equitable tolling, based on his alleged confinement in a special housing unit ("SHU"). See Cole v. Kuhlman, 229 F.3d 1135 (table), No. 98-2348, 2000 WL 1459028 (2d Cir. Oct. 2, 2000) (summary order).
On remand, the District Court rejected the tolling claim, noting that the record revealed that Quezada had been released from the SHU during the relevant time period. See Quezada v. Artuz, No. 98-cv-2593, 2001 WL 1262402 (E.D.N.Y. Oct. 17, 2001). That decision was not appealed.
State Court collateral attack. In March 2003, Quezada moved to vacate his conviction under New York Criminal Procedure Law § 440.10, alleging newly discovered evidence to support his claim of innocence. He contended that Salcedo, the State's key witness, had recanted his trial testimony against Quezada and that Salcedo had reported having been coerced before the trial by a local detective to accuse Quezada. Quezada also contended that a state prisoner, Freddy Caraballo, had told local detectives after the trial that he had participated in the killing for which Quezada had been arrested and that Quezada "did not pull the trigger." At hearings on the section 440.10 motion between 2003 and 2006, Salcedo testified that, contrary to his trial testimony, he had not seen the shooter's face. He also testified that, prior to the trial, a time when he was on parole, a detective had told him that he had to testify against Quezada or else the detective was "going to give [him] ten years." Salcedo also testified that the detective kept him confined in a hotel during the trial. Caraballo appeared at the hearing but invoked his privilege against self-incrimination.
The State trial court denied the section 440.10 motion. See People v. Quezada, 16 Misc. 3d 1113(A), 847 N.Y.S.2d 898 (table) (N.Y. Sup. Ct. 2007).
Pending habeas corpus petition. In December 2008, Quezada filed the pending habeas corpus petition, alleging the recantation by, and the coercion of, Salcedo, and the confession by Caraballo.*fn2 As refined in the pending motion and the supporting memorandum of law, Quezada endeavors to meet the requirements for a second habeas corpus petition by contending that the newly discovered evidence shows two constitutional errors: conviction on the basis of Salcedo's perjured testimony, citing Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988), and pretrial suppression of impeaching evidence, citing Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). Upon the ...