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Lopez v. Miller

United States District Court, E.D. New York

January 16, 2013

William LOPEZ, Petitioner,
v.
David L. MILLER, Superintendent, Eastern Correctional Facility, Respondent.

Order Issued March 20, 2013.

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Richard Ware Levitt, Yvonne Shivers, Levitt & Kaizer, New York, NY, for Petitioner.

Howard Barry Goodman, Phyllis Ruth Mintz, Brooklyn, NY, Kings County District Attorneys Office-Generic, New York State Attorney Generals Office-Generic, for Respondent.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

The case of William Lopez began twenty-three years ago. It was rotten from day one.

In 1989, a man entered a crackhouse in Brooklyn and shot and killed a drug dealer named Elvirn Surria. Lopez was charged with murder for this shooting. After a jury trial before Justice Carolyn Demarest in New York Supreme Court, Lopez was convicted and sentenced to twenty-five years to life in prison. His direct appeal and state collateral proceeding— again before Justice Demarest, twenty years later— were unsuccessful. Lopez now asks this court to grant his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the " Petition" ), which argues, among other things, that he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments. The court resolves this Petition today.

Any discussion of Lopez's case must begin with the weakness of the evidence the prosecution presented at trial. Lacking a murder weapon or any forensic evidence connecting Lopez to the shooting, the prosecution relied upon the testimony of

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two witnesses who were present at the crime scene, only one of whom identified Lopez.

The first, Daisy Guadalupe Flores Lopez (" Flores," and no relation to the Petitioner), came face-to-face and spoke with the shooter but did not recognize Lopez when she saw him in the courtroom. She described the shooter as a " tall, dark, black" man above 6'3" in height. Lopez is around 5'7" and the State later conceded that his " complexion could not be described as black." Justice Demarest agreed that it was " not possible [that] this defendant could have committed the crime based upon [Flores's] description."

The second witness was Janet Chapman. On the morning of the shooting, Chapman was in a room in the basement of the crackhouse in the midst of a two-day crack binge, and admittedly had smoked ten to twelve vials of crack in the two hours prior to the shooting. She told a prosecutor after the crime that she did not witness the shooting but saw Lopez with a gun, went back into her room, and then heard a shot and a body fall. At the trial itself, she switched gears and testified that she did in fact see Lopez shoot Surria through the partially ajar door to her room. After trial, Chapman changed her story yet again, this time even more dramatically— she claimed that Lopez was not present at all at the scene of the crime and that her testimony had been a " pure fabrication" made under duress from the prosecution.

Just as important are those who did not testify. Lopez claims he told his trial attorney that his mother-in-law and sister-in-law (the " alibi witnesses" ) were ready to testify that Lopez had been with them around the time of the crime. Counsel later stated that he had interviewed one witness and decided not to call her. But both witnesses have since submitted affidavits swearing that counsel never spoke to either of them regarding an alibi defense and describing in detail their interactions with Lopez around the time of the murder.

Another key non-witness was Earline Cafield, who knew Janet Chapman when both of them were inmates at Rikers Island jail. After trial but prior to sentencing, Cafield sent a letter to a prosecutor stating that Chapman had told her that someone other than Lopez had committed the crime. The prosecution forwarded this letter to Lopez's counsel, but counsel never mentioned its contents to Justice Demarest.

Finally, just a few months ago, Lopez's habeas counsel was able to track down a man named Cesar Diaz in the Dominican Republic. At an evidentiary hearing before this court, Diaz testified via videoconference that he was in the crackhouse when Surria was killed and saw the shooting. Diaz described the shooter as a " black, dark-skinned" man approximately 5'3" in height. When shown a mug shot of Lopez taken soon after the murder, Diaz said he was " certain" that the person in the picture was not the shooter.

In short, the prosecution's evidence was flimsy to begin with and has since been reduced to rubble by facts arising after trial. Habeas relief, however, is an extraordinary remedy, particularly for those prisoners who are in custody pursuant to a judgment of a state court. Lopez has a number of challenging hurdles to surpass if he is to receive it.

The first is a procedural hurdle. Lopez's Petition is indisputably untimely under the one-year statutory limitation period prescribed for habeas petitions from state prisoners. See 28 U.S.C. § 2244(d)(1). He argues, however, that he should be excused from this limitation period because he has made a credible and

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compelling showing that he is actually innocent of the crime. See Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir.2012). To establish a " gateway" claim of actual innocence and thus overcome his procedural default, Lopez must demonstrate using " ‘ new reliable evidence’ " that it is " ‘ more likely than not ... [that] no reasonable juror would find him guilty beyond a reasonable doubt— or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.’ " Id. at 541 (quoting House v. Bell, 547 U.S. 518, 538, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), and Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Based on the weakness of the prosecution's case and the new evidence Lopez has presented since trial, the court concludes that any reasonable juror would have reasonable doubt as to his guilt; he is thus excused from the limitation period. ( See Part II.)

The second hurdle is one of state-court deference. Lopez's ineffective assistance of counsel claim was rejected on the merits by Justice Demarest during Lopez's collateral state court proceeding. This means that under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (" AEDPA" ), the court may not grant habeas relief unless Justice Demarest's adjudication " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), or " was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). The court concludes that Justice Demarest's analysis of the new evidence Lopez submitted in support of his ineffective assistance claim was an unreasonable determination of the facts under § 2254(d)(2). Indeed, her refusal to hold an evidentiary hearing to develop the central factual disputes underlying Lopez's claim— without so much as an explanation— is baffling, not to mention unfortunate because the two alibi witnesses are now no longer available to testify. ( See Part III.A.)

Finally, there is a constitutional hurdle. Putting aside the reasonableness of Justice Demarest's adjudication of his claim, Lopez must show that he is being held in custody in violation of the United States Constitution. See 28 U.S.C. § 2254(a). For his ineffective assistance of counsel claim, he must show: (1) that his counsel's representation " fell below an objective standard of reasonableness" ; and (2) that " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Lopez has satisfied this standard because of his trial counsel's failure to call his available alibi witnesses, a decision that had no basis in reasonable trial strategy and undermines the court's " confidence in the outcome" of Lopez's trial. Id. at 694, 104 S.Ct. 2052. ( See Part III.B.)

For these reasons and those set forth below, Lopez's Petition for Writ of Habeas Corpus is GRANTED.

I. BACKGROUND

A. Trial Evidence and Proceedings

The evidence at trial shows that on August 31, 1989, sometime after 2:00 a.m., two men entered the basement of a crackhouse at 3053 Brighton Fifth Street in Brooklyn and demanded money and drugs from a drug dealer named Elvirn Surria. (Trial Tr. (Dkt. 59-2) at 247-50.) One of the men shot Surria twice with a double-barreled shotgun. ( Id. at 250-54.) The weapon was not recovered ( id. at 427), but

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Surria was later determined to have died from a single shotgun wound to the abdomen (Trial Tr. (Dkt. 59-1) at 161-62). William Lopez was charged for this shooting in New York Supreme Court, Kings County. (Goodman Aff. (Dkt. 59) ¶ 5.) Following a jury trial before Justice Carolyn Demarest, he was convicted of second-degree murder, second-degree criminal possession of a weapon, and third-degree criminal possession of a weapon. (Trial Tr. (Dkt. 59-3) at 722-23.) He was sentenced to concurrent terms of imprisonment totaling twenty-five years to life. (Sentencing Tr. (Dkt. 59-3) at 21.)

Two eyewitnesses testified at trial. The court will discuss each of their testimony in turn.

1. Testimony of Daisy Guadalupe Flores Lopez

Daisy Guadalupe Flores Lopez was an immigrant from El Salvador. ( See Trial Tr. (Dkt. 59-2) at 229.) On August 31, 1989, she was working at the crackhouse for Surria, whom she knew as " Moreno" ; her job was to open the door to the crackhouse and hand people drugs. ( Id. at 229-30, 232, 247-54.) She " [n]ever" used drugs herself but accepted the job from Surria because she had been unable to secure other employment. ( Id. at 254-55.)

Drug deals at the crackhouse took place at a side door entrance into the building. ( Id. at 235.) The side door was the only point of entrance and exit into the basement, which was down the stairs past the side door after entry. ( Id. at 232-37, 334.) There were five rooms in the basement. ( Id. at 331-32.)

At around 2:00 a.m. on the morning of the shooting, Flores went down with Surria to one of the rooms in the basement of the crackhouse, and the two talked for awhile and listened to music. ( Id. at 247-48.) At one point Flores went upstairs to the side door entrance and sold drugs to a girl. ( Id. ) She then went back downstairs to the basement. ( Id. )

" Seconds later," someone knocked on the side door. ( Id. ) Surria went upstairs to the side door and Flores stayed downstairs. ( Id. at 248-49.) Two armed men, one carrying a double-barreled shotgun, pushed Surria downstairs into the basement room occupied by Flores. ( Id. at 249-50.) The two men demanded money and drugs from Surria and began searching the room. ( Id. at 249.) Surria got angry and tried to grab their weapons. ( Id. at 255-56.)

The man with the shotgun then shot Surria twice and Surria fell to the floor. ( Id. at 249, 251.) He pointed the gun at Flores, but, after Flores pleaded for her life, he did not shoot her. ( Id. at 250.) The two men searched the basement and Surria's pockets and took money and some pills. ( Id. at 251-54.) After the men left, Flores stayed in the basement for a few minutes and then called an ambulance. ( Id. at 251.)

Flores offered a description of the shooter at trial. To fully understand this description, it is important to note the events at a hearing Justice Demarest conducted in the absence of the jury prior to Flores's testimony.

During that hearing, both Lopez's counsel— William Lupo— and Assistant District Attorney Tess Allen (" A.D.A. Allen" ) asked Flores to look around the courtroom to see if she recognized someone. ( Id. at 216-17, 223.) Although Lopez was in the room, Flores stated multiple times— and in response to both attorneys' questions— that she did not recognize anyone and that she did not see the shooter. ( Id. at 217, 223.) After A.D.A. Allen persisted in seeking permission from Justice Demarest to attempt to elicit an identification from Flores during trial ( see id. at 223-26), Justice

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Demarest ordered A.D.A. Allen to instruct Flores that she was not to offer any identification of a person in the courtroom ( id. at 226). Justice Demarest stated: " This ruling is the identification by this witness, she has clearly testified unequivocally, and I see her looking around and saw her look at the defendant, I don't think there's any question that she cannot recognize him. The identification is suppressed in any way, shape or form." ( Id. at 225.)

After Flores's testimony resumed, A.D.A. Allen asked Flores to describe the shooter, and Flores answered that he was " tall, dark, black," " Hispanic," and appeared " drugged." ( Id. at 258-59.) Lupo then cross-examined Flores. In response to Lupo's questioning, Flores testified that the shooter was a " little tall[er]" than Lupo and approximately Lupo's size. ( Id. at 260.)

During a hearing before the court at the end of trial, Lupo stated: " I would ask the Court, for the purpose of this record, to indicate that I am approximately six-feet-three and 245 to 50 pounds, and that the defendant in this case is approximately 150 pounds, about five-feet-seven and is white, or light-skinned." ( Id. at 528.) A.D.A. Allen refused to stipulate to the defense counsel's description of Lopez's height and weight, but stated that " [t]he Court certainly can judicially note at this time that Mr. Lopez's complexion could not be described as black." ( Id. ) Lopez has since submitted documentation showing that he is 5'7" and light-skinned. (Frost Aff. (Ex. P to Resp. Opening Opp'n (Dkt. 59-5)) ¶ 6 (affidavit from Lopez's investigator averring that he met Lopez and that Lopez was approximately 5'7" and " light-skinned" ); Department of Correctional Services Inmate Photographs (Dkt. 109-1) (showing Lopez's height and weight on September 26, 2012, as 5'7" and 165 pounds, respectively, and describing his race as " White" ); Institutional Admission Form (Dkt. 109-1) (indicating on May 13, 1991, that Lopez was 5'7" and white).) In its brief in opposition to Lopez's motion to vacate judgment, the State acknowledged that Lopez was no taller than 5'9" . (People Aff. in Opp'n to Mot. to Vacate J. (Ex. R. to Resp. Opening Opp'n (Dkt. 59-6)) at 9.) [1]

After the jury convicted Lopez, Lupo moved to set aside the verdict on the grounds that it was against the weight of the evidence, arguing again that Flores's description of the shooter did not fit Lopez's characteristics. (Trial Tr. (Dkt. 59-3) at 729-31.) Justice Demarest agreed with Lupo that " it appeared not possible [that] this defendant could have committed the crime based upon [Flores's] description." ( Id. at 732.) Nevertheless, she found that she was required to " assume the jury accepted [Janet Chapman's] testimony," and thus denied Lopez's motion. ( Id. )

2. Testimony of Janet Chapman

Janet Chapman (also known as " Janet Chamber," " Janet Chaplan," and " Ashley Foster" ) was living in a room in the basement of the crackhouse at the time of the shooting. (Trial Tr. (Dkt. 59-2) at 331-32, 350, 381.) She was twenty-two years old, unemployed, and had a $200-per-day

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crack habit, which she supported through prostitution. ( Id. at 382.) Chapman had been previously convicted twice of misdemeanor drug possession, twice of prostitution, and once for a drug sale. ( Id. at 382.)

Chapman testified that at approximately 2:00 a.m. on the morning of the shooting, she was in her room smoking crack with her friend Howie Sachs. ( Id. at 350, 353, 355-56, 389-90.) Sachs had been " shooting up" cocaine (i.e., injecting rather than smoking or snorting it) for several days; he was " very high" and was not " aware of anything that was going [on] around him." ( Id. at 356, 358, 389.) Chapman had not slept for two days and had smoked ten to twelve vials of crack in the two hours before the shooting. ( Id. at 368, 389-91, 485-86, 512-16.)

At some point that morning, Chapman heard " a girl's voice" and Surria's voice speaking in Spanish, a language that Chapman did not understand. ( Id. at 354.) Someone then knocked on the side door to the crackhouse. ( Id. ) Chapman testified that, looking out from the partially ajar door to her room, she saw Surria walk down the stairs with Lopez (a.k.a. " Billy" ), whom she had known from the neighborhood for over a year. ( Id. at 354-55, 359.) The two seemed to be arguing in Spanish; Chapman did not understand what they were saying. ( Id. at 354.)

Through the crack in the door, Chapman saw Lopez point a shotgun at Surria and fire, after which she saw some smoke and heard (but did not see) Surria fall to the ground. ( Id. at 355, 358, 364-66.) She then saw Lopez put his gun down and check Surria's pockets but did not see him take anything. ( Id. at 366.) Chapman then went back into her room. ( Id. at 369.) After Lopez left the crackhouse, Chapman waited for about five minutes and left herself. ( Id. )

Chapman did not call the police after the shooting. ( Id. at 369-70.) She testified that she did not come forward immediately because she was " scared," " didn't believe there w[ere] any innocent people involved," and " was doing drugs at the time." ( Id. at 491.)

On September 29, 1989, Chapman was arrested for prostitution. (Id at 370-71.) She was taken to a police station, was interviewed by a detective, and then gave a sworn audiotaped statement to an assistant district attorney concerning the Surria homicide. ( Id. at 393, 395-96, 468-85.) She subsequently viewed a lineup and identified Lopez as the shooter. ( Id. at 374-75.)

On cross-examination, Lupo attempted to impeach Chapman with a portion of the audiotaped statement she made at the police station. Contrary to her direct testimony, at the police station Chapman stated to the assistant district attorney that she had not been looking at Lopez when the gun was fired but rather saw Lopez with a gun, went back to her room, and then heard a shot and a body fall to the ground in the hallway. ( Id. at 471-72, 477, 479.) When Lupo questioned her about this statement, Chapman said: " Yes. I had seen part of it. Okay, I didn't see the— maybe somethings, but I saw most of it." ( Id. at 483.)

At the time of her testimony, Chapman had been in custody at Rikers Island jail for about five months pursuant to an arrest for a drug sale and a related charge for a violation of probation (" VOP" ). ( Id. at 328.) There is conflicting evidence in the record regarding whether, at the time of her testimony, there was an outstanding deal between the prosecution and Chapman whereby Chapman would receive a sentence of time served on the VOP charge if she testified against Lopez consistently

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with her audiotaped statement at the police department.

Specifically, during jury selection for Lopez's trial on October 15, 1990, A.D.A. Allen volunteered that she did not " have any understanding of any promises or agreements or deals" with Chapman. (Trial Tr. (Dkt. 59-1) at 91.) Defense counsel referenced contrary information that he had gleaned from conversations with A.D.A. Allen. ( See id. at 91-92.) A.D.A. Allen then told Justice Demarest that at an October 10, 1990, hearing on Chapman's VOP before Justice Michael Curci, Justice Curci had the " bright idea [that] what we should do is a contract" with Chapman in exchange for her testimony, requiring that " she would testify consistent with [her] prior statement" at the police department. ( Id. at 94-95.) A.D.A. Allen also told Justice Demarest, however, that the arrangement was never actually discussed with Chapman and that Chapman was not aware of it. ( Id. at 94-96.)

As it turns out, A.D.A. Allen's representation was false. The transcript of the October 10 hearing before Judge Curci shows that the " contract" was discussed in open court in Chapman's presence. ( See Oct. 10, 1990, Hr'g Tr. (Hr'g Exs.[2] (Dkt. 95-1) at 227-32) at 4-5.) [3] Lupo brought this fact to Justice Demarest's attention after he began to cross-examine Chapman. ( See Trial Tr. (Dkt. 59-2) at 401-02.) A.D.A. Allen then shifted her position and represented to Justice Demarest that although there had been an offer, the offer had been " rescinded" and " there st[ood] at th[at] time no such agreement." ( Id. at 403.)

Lupo continued his cross-examination of Chapman. Chapman acknowledged that she had heard Justice Curci's statements about the " contract" at the October 10 hearing and that a contract had in fact been offered to her, but maintained that it had been withdrawn and that she did not expect any benefit in exchange for her testimony. ( Id. at 489-90, 492, 494-95.)

The withdrawal of the deal is not reflected in the transcript of the second appearance in Chapman's VOP case on October, 12, 1990. (Dkt. 94-7.) That hearing took place " outside the presence of [Chapman]" and reflects only an off-the-record discussion between A.D.A. Allen, Chapman's attorney, and the court, and then an adjournment of the case until October 24. ( Id. ) The transcript of the final hearing on the VOP case on October 24, 1990— after Chapman's testimony and Lopez's conviction— suggests that the offer was in fact

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eventually withdrawn. ( See Oct. 24, 1990, Hr'g Tr. (Dkt. 123-1) at 4.) However, as Justice Demarest pointed out in her decision denying Lopez's motion to unseal the October 24 transcript, there was " no indication" in the transcript of whether the offer was withdrawn " prior to or subsequent to [Chapman's] testimony at [Lopez]'s trial." (June 11, 1999, N.Y. Sup.Ct. Decision & Order (Dkt. 64-1) at 3.)

B. Alibi Witnesses

At the time of the shooting and his trial, Lopez was common-law married to a woman named Juliana Guido (" Juliana" ). ( See Sept. 13, 2012, Evidentiary Hr'g Tr. (Dkt. 113) (" First Ev. Hr'g Tr." ) at 8.) Lopez considered Helen Guido (" Guido" ), Juliana's mother, to be his mother-in-law, and Lydia Rivera, Juliana's sister, to be his sister-in-law. ( Id. at 10, 16.)

According to Lopez, both prior to and during the trial he informed his counsel Lupo that both Guido and Rivera were willing to testify that Lopez had been with them at the time of the shooting. ( See Lopez Aff. (Dkt. 55-3) at 1; First Ev. Hr'g Tr. at 15, 19.) Lopez claims Lupo later told him that he had spoken to both of these women and had advised against calling them as witnesses because they were " closely related" to Lopez and therefore would not be believable to the jury. (Lopez Aff. at 1; First Ev. Hr'g Tr. at 17.)

After the State rested, Lupo told Justice Demarest at a hearing that Lopez had " produced for [Lupo] an alibi witness in this case." (Trial Tr. (Dkt. 59-3) at 536.) Lupo stated that he had " interviewed that alibi witness" at " considerable length," that he had advised Lopez and his family not to call this witness, and that Lopez and his family had agreed with that advice. ( Id. at 536-37.) The court asked Lopez whether counsel had spoken truthfully and whether Lopez was " satisfied in not presenting whoever this witness was" ; Lopez responded in the affirmative.[4] ( Id. at 537.) According to Lopez, he agreed with Lupo's decision based upon Lupo's representation that Lupo had spoken to Guido and Rivera. ( See First Ev. Hr'g Tr. at 17-18.)

After Lopez was convicted and incarcerated, his relationship with Juliana ended, and he remarried. (First Ev. Hr'g Tr. at 9.) He began to lose contact with the people he had previously considered his family because they " weren't too happy" about his remarriage. ( Id. at 20.) He testified that sometime in 2003, he had a conversation with Rivera over the phone, and she told him that Lupo had never spoken to her about appearing as a witness. ( Id. at

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20-21.) She later told him that Lupo had not spoken to Guido either. ( Id. ) Lopez asked Rivera if she could make a statement, and she agreed to do so. ( See id. )

In 2005, Rivera and Guido provided signed and notarized affidavits to Lopez. (Rivera Aff. (Hr'g Exs. at 1); Guido Aff. (Hr'g Exs. at 2).)

Guido's affidavit, dated April 4, 2005, states that on August 31, 1989, Lopez was living with Juliana and their daughter in the rear apartment of Guido's home at 84 Brighton 1st Place in Brooklyn. (Guido Aff.) She " vividly" recalled that, at " approximately two to three in the morning" on the day of the shooting, Lopez came by and talked to her for " about an hour or so" about a disagreement he had with Juliana earlier. ( Id. ) Guido was awake at that time because she worked a midnight shift at Coney Island Hospital and normally could not fall asleep until early the next morning. ( Id. ) Guido offered him some advice and then Lopez told her that he was going to his brother's home on Brighton 3rd Street— where Rivera lived in the basement— to spend the night. ( Id.; see also First Ev. Hr'g Tr. at 113.) Besides Lopez's concern about the disagreement with Juliana, Lopez " appeared to be in good spirits." (Guido Aff.) Guido stated that she could " attest with absolute certainty[ ] that [Lopez] could not have committed the crime ... because later after communicating with [her] daughter Lydia Rivera, [she] was informed that [Rivera] was in fact with him during the time frame in which this crime was to have occurred," at " [a]pproximately 3 to 3:30 am." ( Id. ) Guido also stated that she was present during trial and expected to testify, but that Lupo never spoke to her about testifying. ( Id. )

Rivera's affidavit, dated October 21, 2005, states that on August 31, 1989, she resided at 3053 Brighton 3rd Street in Brooklyn with her husband and two children. (Rivera Aff.) She alleges that in the early hours of that " warm summer day," she, Lopez, Juliana, and Rivera's son " were all in the front of the house drinking refreshments and simply talking about different things," including " trying to patch up [the] disagreement" between Lopez and Juliana. ( Id. ) After the start of Lopez's trial, she asked Lopez " how in the world they c[ould] accuse him of doing something as heinous as murdering someone that morning when [they] were all outside in front of the house during that time," and advised him to make clear to his attorney that she was willing to testify on his behalf. ( Id. ) However, she stated, " Lupo never called to speak to [her] nor attempted to inquire about her testimony." ( Id. )

C. Earline Cafield's Letter

On November 2, 1990, after Lopez's conviction but prior to his sentencing, A.D.A. Allen sent Lopez's counsel a letter attaching another letter from a Rikers Island inmate named Earline Cafield.[5] (Allen Ltr. (Hr'g Exs. at 240); Cafield Ltr. (Hr'g Exs. at 233-35).) Cafield's letter, dated October 12, 1990— the day Lopez's jury was selected and sworn— recited conversations that Cafield had with Chapman while the two were housed together at Rikers Island, prior to Chapman's testimony in Lopez's case. ( See Cafield Ltr.)

The letter states, in relevant part:

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[T]here's someone here who claims to have been a witness to a murder and " is cooperating" with the Brooklyn D.A.'s office. Her name is Janice Chaplin A.K.A. Janet Chapman. She says she's here ostensibly on a probation violation but that in actual fact the D.A. had her picked up to make sure she'd be available to testify against this guy she says she saw kill another guy. She's a crack addict and a prostitute. First she told me the guy who got killed [Surria] was a dealer from South America. Then she said at another time that the guy was at the place where he was killed to buy crack. At another time she's told me she was dealing crack for the guy who got murdered. Then, about three weeks ago another girl [" Joyce" ] comes into the jail who was also at the crime scene immediately before and after the murder and she may have been there when it happened. There was also a " Howie" there who went through the victim's pockets after he was killed.... She [Chapman] told me [on October 11, 1989,] that the guy [Surria] had bought some crack for a[ ] girl in exchange for sex (oral sex) and the girl[']s boyfriend came after they'd finished and had an argument with the guy and shot him with a shotgun over the girl going out with him, but last night from a conversation between the three of us [Cafield, Chapman, and Joyce], it came out that the guy [Surria] was lured there to be robbed, she's [Chapman is] the one who lured him there and this Howie did the killing. Howie has a Jewish last name and is a Vietnam veteran.

( Id. )

In other words, Cafield was told on different occasions that the murder was committed by (1) a man whose girlfriend had exchanged sexual favors for crack with Surria or (2) a man named " Howie" with " a Jewish last name" — presumably Howie Sachs— who had conspired with Chapman to lure Surria to the crackhouse to be robbed. ( Id. at 2-3.)

In her cover letter, A.D.A. Allen stated that her office had conducted an investigation of the letter and had learned that Cafield: (1) " underwent a CPL 730 [mental competency] exam at one time and was found unfit" ; and (2) " ha[d] a history of violence that was known to [Chapman]." (Allen Ltr. at 1.) She noted further that cooperating witnesses often sought to " remove the taint of the image of cooperating by putting another gloss on themselves to the other inmates for the purposes of self-protection," that multiple women connected to the Lopez case were in the same facility as Chapman and Cafield, and that Chapman had been confronted in the jail " by an incarcerated girlfriend of [Lopez]." ( Id. ) A.D.A. Allen concluded:

In light of the various people in jail from the neighborhood where Janet [Chapman] lives, and in light of the obvious dangers to people considered as ‘ rats' and so forth, the District Attorney's office is convinced that Janet [Chapman]'s in court testimony should not be upset by a letter from a source as unreliable as Earline Cafield.

( Id. )

The defense never made meaningful use of the Cafield letter. Lopez's trial counsel, Lupo, was incapacitated after the verdict, having undergone heart bypass surgery, and is now deceased. Lopez was represented at sentencing by Irving Anolik. (Sentencing Tr. (Dkt. 59-3).) At the time of Lopez's sentencing hearing before Justice Demarest, Anolik confessed that he had not seen the trial transcript ( id. at 5), that he was " totally unfamiliar" with Lopez's case ( id. at 8), and that he was " totally unprepared to handle the sentence" ( id. at 13), but Justice Demarest

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insisted on proceeding with sentencing ( id. at 16-17).

The following colloquy then occurred:

THE COURT: You don't wish to speak to any issues?
MR. AN[OLIK]: Well, I can just speak to what I was told very briefly. One, I understand that a letter was received during the trial or perhaps shortly after the trial from some individual.
THE COURT: Mr. An[olik], my interest is what you think is fair for your client and whether you wish to draw my attention to anything specifically.

( Id. at 18.)

Anolik then proceeded to discuss Lopez's " steady history of employment," " stable family," non-violent past, and belief that he had not received a fair trial. ( Id. at 18-19.) Anolik never mentioned the Cafield letter again. Justice Demarest then sentenced Lopez to concurrent terms of imprisonment totaling twenty-five years to life. ( Id. at 20-21.)

D. Janet Chapman's Recantation

Lopez's brother, Eugene Lopez (" Eugene" [6]), testified at the September 13, 2012, evidentiary hearing in this court regarding three typewritten statements Chapman gave him in the months after Lopez was sentenced, each of which was admitted into evidence at the hearing. Eugene knew Chapman casually from the neighborhood as a drug addict and a prostitute; Chapman would occasionally purchase drugs and paraphernalia from Eugene, and would sometimes spend time with Lopez's then common-law wife Juliana, who lived with Lopez in the basement of Eugene's apartment and was also a drug user. (First Ev. Hr'g Tr. at 93-94, 113.)

According to Eugene, a couple of months after the trial, Chapman approached Eugene and Juliana as the two of them were sitting on the stoop in front of Eugene's home. ( Id. at 95, 110.) Chapman " apologize[d] for having to testify the way she did against [Lopez]" and told Eugene that Officer Boyle of the NYPD had " pressured" and " threatened" her into testifying, and had held her in custody for three weeks until she testified. ( Id. at 95.) Eugene asked her " if she could help [him] fix what she had done," and " she agreed to write a statement." ( Id. at 95-96.) Eugene testified that he did not threaten Chapman or offer her anything in return for the statement, but rather that Chapman agreed to give the statement " voluntarily." ( Id. at 99.)

A few days later, Chapman came to Eugene's home and gave Eugene a typed statement that was signed but not sworn, dated, or notarized. ( Id. at 96.) Eugene testified that neither he nor Juliana typed this statement— or any of the three statements— for Chapman, but he did not know if anyone else had assisted Chapman in writing it. ( Id. at 101-02.) This letter states:

I Jannet [sic] Chapman of sound mind and judgement [sic] do hereby confess that my testimony relevant to the trial of the People vs. William Lopez was not true. William Lopez was not present at the scene of the crime. The D.A. forced me to testify on behalf of the state under due ress [sic] and the constant threat of going to jail if I did not cooperate with the D.A. office. Let me say again William Lopez is completely innocent

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he was never at the scene of the crime.

(First Chapman Statement (Hr'g Exs. at 237).)

Eugene sent Chapman's statement to Lopez. (First Ev. Hr'g Tr. at 96-97.) Lopez told Eugene that the statement was unacceptable because it was not notarized. ( Id. at 97, 114-15.) Eugene then " waited around" for a few days until Chapman " resurfaced again" and told her that the letter was unacceptable. ( Id. ) Chapman " volunteered" to write another letter. ( Id. at 115.)

A few days later, while Eugene was sitting outside his home with Juliana, Chapman brought Eugene another typed (and again unsworn) statement. ( Id. at 98.) This one states, in relevant part:

I Janet Chapman of sound[ ] mind, and judgement [sic] do hereby confirm that my testimony given on 10/16/90 for the murder trial of the PEOPLE V. WILLIAM LOPEZ ... was not true and William Lopez is completely innocent.... William Lopez was not at the murder scene and never had anything to do with the murder.

(Second Chapman Statement (Hr'g Exs. at 238).)

Eugene, Juliana, and Chapman then took a cab ride over to a nearby pharmacy. (First Ev. Hr'g Tr. at 114.) The statement was signed and notarized at the pharmacy in Eugene's presence. ( Id. at 114, 117.) The three of them then left the pharmacy, got back into the cab, and were driven back to Brighton Beach. ( Id. ) Eugene thanked Chapman and she left. ( Id. at 114.)

Eugene brought the statement to his brother. ( Id. at 99.) Lopez told Eugene that his appellate attorney, Anolik, " had said something about it being shabby or incorrectly written" and that he would " need a better statement." ( Id. )

Eugene testified that Chapman then " disappeared for a while." ( Id. ) When she " showed up back in the neighborhood," Eugene " told her about what had happened" and asked if she could provide a " better" statement; she agreed to do so. ( Id. at 99, 117-18.)

Sometime after that, on a Sunday, Chapman came back to Eugene's house. ( Id. at 100.) She presented Eugene with an unsigned affidavit dated " August, 1991." ( Id.; Third Chapman Statement (Hr'g Exs. at 226).) The affidavit states:

JANET CHAPMAN aka JANET CHAMBERS, being duly sworn under penalty of perjury, deposes and says: The district attorney's representative promised to arrange my early release in exchange for a statement that I saw William Lopez carrying a shotgun-type weapon near the scene of a shooting murder. Although I never saw anything such as the assistant district attorney suggested, I readily agreed to make the statement because I wanted to get out of jail. I attended William Lopez's trial and testified against him when I knew my every word was pure fabrication. I immediately felt guilty for telling a lie that placed a man in prison, but I was also frightened of being sent back to jail on other charges or for perjury; therefore, I kept quiet for a time and only confided in a few close friends. Each person who heard the story of my lie was horrified. I reached the point where I could no longer live with the ...

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