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Fernandez v. Capra

United States District Court, S.D. New York

October 9, 2014

PABLO FERNANDEZ, Petitioner,
v.
MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, Magistrate Judge.

Pablo Fernandez, currently an inmate at Sing Sing Correctional Facility in Ossining, New York, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Fernandez was convicted of one count of Second Degree Murder following a jury trial in New York State Supreme Court held in January and February 1996. After trial, Fernandez received a sentence of 25 years to life imprisonment. For the following reasons, Fernandez's petition should be denied.

I. BACKGROUND

A. Arrest and Indictment

A warrant for Pablo Fernandez's arrest was issued on June 7, 1995, based on a felony complaint filed in the New York City Criminal Court. See Felony Arrest Warrant, dated June 7, 1995 (annexed as Ex. 1 to Declaration of Gabrielle E. Tenzer in Support of Petitioner Pablo Fernandez's Third Amended Petition for Writ of Habeas Corpus, dated Sept. 16, 2013 (Docket # 140) ("Tenzer Decl.")). Fernandez was indicted by a grand jury in New York County for murder in the second degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. See Indictment (annexed as Ex. 2 to Tenzer Decl.). The indictment charged that on June 10, 1993, Fernandez caused the death of Ramon Quintero by shooting him with a pistol. Id.

B. Photographic Identifications and Wade Hearing

On January 10 and 11, 1996, New York Supreme Court Justice Leslie C. Snyder held a hearing on Fernandez's motion to suppress pretrial identifications made by witnesses pursuant to United States v. Wade , 388 U.S. 218 (1967). See Transcript of Proceedings Before the Hon. Leslie C. Snyder, held Jan. 10, 1996 and Jan. 11, 1996 (annexed as Ex. 4 to Tenzer Decl.) ("Wade Hg.").

The hearing testimony showed that on April 4 and 5, 1995, cousins Hickliff Rosario ("Hickliff") and George Rosario ("George"), who were also cousins of the victim, Ramon Quintero, identified Fernandez in photo arrays constructed by Officer Albert Melino, who was then assigned to the Manhattan District Attorney's Homicide Investigation Unit ("HIU"). Hickliff was the first to view a photo array, and he picked picture number "four, " which was a photograph of Fernandez. (Melino: Wade Hg. 11). George then viewed a photo array consisting of the same photos arranged in a different order from the one Hickliff had viewed. (Melino: Wade Hg. 13). George picked out number "one, " which was also a photograph of Fernandez. (Melino: Wade Hg. 15). Melino testified at the hearing that before presenting the photo arrays, he told Hickliff and George separately to "think back to the day in question" and to try to remember who they had seen commit the shooting. (Melino: Wade Hg. 8, 14, 33). Melino never told them they had identified the same person. (Melino: Wade Hg. 46). Hickliff and George later viewed a lineup conducted by Melino on July 20, 1995. Hickliff viewed the lineup first. (Melino: Wade Hg. 53). Hickliff identified the person in position number "five" as the person who killed Quintero. (Mshar: Wade Hg. 112-13). George identified the person in position number "two" as the person who killed Quintero. (Mshar: Wade Hg. 114-15). Both persons identified were Fernandez. (Mshar: Wade Hg. 122).

Following the hearing, Justice Snyder found that there was "no question that all identification procedures were non-suggestive and were not constitutionally impermissible" and denied "any motion to suppress any identification." (Wade Hg. 153).

C. State Court Trial Proceedings

The evidence at trial showed that "[o]n June 10, 1993, a man with a ponytail got out of a car in front of 504 West 135th Street and fired multiple shots from an automatic weapon at the persons in front of the building." People v. Fernandez , 249 A.D.2d 3, 3 (1st Dep't 1998). The surviving victim is referred to variously as "Eddie Serrano, " "Henry Gomez, " or "Macho." The Quintero homicide investigation went "dormant" for two years. (Tr. 92).[1] The investigation was reinitiated almost two years after the incident, when members of a Manhattan drug gang then under investigation for unrelated offenses provided information about the murder of Quintero to HIU.

We next summarize the relevant testimony presented at Fernandez's trial.

1. Detective Steven Mshar

In December 1993, Detective Steven Mshar became involved in investigating the activities of a gang known as the "Yellow Top Crew, " "Young Talented Children, " or simply "YTC." (Mshar: Tr. 571, 595). He also came to be involved in the investigation of another gang called the "Red Top Crew" or "RTC." (Mshar: Tr. 570). Mshar became familiar with Martin "Chango" Mejias, whom Mshar knew to be the leader of the YTC. (Mshar: Tr. 572). Mshar met with Mejias on several occasions, and he discussed with Mejias some of the criminal activity in which Mejias was involved. (Mshar: Tr. 573). Mshar first spoke with Mejias around August 1994. (Mshar: Tr. 596). He spoke with Mejias about fifteen or twenty times, the first time being in August and the next time being "around December." (Mshar: Tr. 597).

Subsequently, Mshar became involved "in the investigation of a homicide that took place on 135th Street... in Manhattan in which the deceased was named as Ramon Quintero." (Mshar: Tr. 574). According to Mshar, "this investigation actually started after Martin Mejias was interviewed... and he gave us information and based upon that information we started this investigation" into the homicide of Quintero. (Mshar: Tr. 593). Mshar testified that he received the "homicide folder" from the 30th Precinct and "had an investigator go out and reinterview and locate witnesses." (Mshar: Tr. 575). Mshar received the folder "[s]ometime in January or February of 1995." (Mshar: Tr. 597). On July 20, 1995, he "supervised a line-up and arranged for that line-up to take place." (Mshar: Tr. 575). The lineup included five "fillers" in addition to Pablo Fernandez. (Mshar: Tr. 579). Two witnesses ultimately viewed this lineup. (Mshar: Tr. 580). When the first witnesses viewed the lineup, Fernandez was seated in the second position and wore the number "five." (Mshar: Tr. 580-81). Officer Melino first brought Hickliff into the viewing room, but Melino did not enter the viewing room with Hickliff. (Mshar: Tr. 581-82). After Hickliff viewed the lineup, Mshar brought him out of the room. (Mshar: Tr. 582). Mshar saw Melino waiting for Hickliff in the hallway when Hickliff left. (Mshar: Tr. 582-83).

The second witness to view the lineup was George. (Mshar: Tr. 583). "Investigator Garcia" (also referred to as "Detective Garcia") brought George to view the lineup, and the two did not come from the same direction as Hickliff and Officer Melino. (Mshar: Tr. 584). After Hickliff viewed the lineup but before George viewed it, the lineup was altered so that Fernandez now wore number "two." (Mshar: Tr. 584-85). This change had been requested by Fernandez and his attorney. (Mshar: Tr. 585). After George viewed the lineup, he left the room and Investigator Garcia was waiting for him in the hallway. (Mshar: Tr. 585).

2. Hickliff Rosario

Hickliff, who was then in the ninth grade and was a cousin of Ramon Quintero, testified at Fernandez's trial. (Hickliff: Tr. 103-04). At the time of his trial testimony, Hickliff was on probation after having pled guilty in Family Court to possession of heroin with intent to sell. (Hickliff: Tr. 295-99).

On June 10, 1993, Hickliff had been playing basketball next to his building at 502 West 135th Street with his cousin Edwin Garcia at about 6:30 pm. (Hickliff: Tr. 106, 148). He was "about thirteen" at the time of the shooting. (Hickliff: Tr. 109). Hickliff testified that "[a]ll of a sudden a car pulls over in front of 504 and a guy comes out. He starts shooting." (Hickliff: Tr. 106). Hickliff testified that there were approximately five people standing in front of building 504 and that when the car pulled up, "[t]hey ran." (Hickliff: Tr. 161). Hickliff and Garcia did not run, however, even after the shooting started. (Hickliff: Tr. 164). When asked if he saw the man in the courtroom that he had seen exit the car and start shooting, Hickliff pointed to Fernandez. (Hickliff: Tr. 107-08). He testified to seeing two people in the car and stated that Fernandez exited from the passenger side. (Hickliff: Tr. 118-19). The car was double-parked and the passenger side was "[c]loser to the curb." (Hickliff: Tr. 122).

Hickliff testified that the gun "looked like an Uzzi [sic]" and it was "dark [] black" in color. (Hickliff: Tr. 126, 177). As the person began to shoot, Hickliff could see the "left part of his body." (Hickliff: Tr. 126). Hickliff saw the person shooting with his left hand extended and his right hand closer to his body. (Hickliff: Tr. 125). Hickliff was approximately 30 to 40 feet away from the shooter. (Hickliff: Tr. 127). After the shooting stopped, the person "ran back inside the car." (Hickliff: Tr. 129). When the person "turned to his left to get back into his car, " Hickliff could "see his face at that point." (Hickliff: Tr. 130). The car then left "[t]owards Amsterdam." (Hickliff: Tr. 130-31). At that point the car "was driving fast" but Hickliff "could see the defendant inside the car." (Hickliff: Tr. 132). Hickliff testified that as the car drove past, and was about ten feet away, the person in the passenger seat was facing Hickliff and "pointed a gun at [him]." (Hickliff: Tr. 132-34). The window was also "rolled down" and there was nothing "blocking [Hickliff's] view of his face." (Hickliff: Tr. 134). Hickliff testified that the shooter "had a ponytail" and that his hair was "grayish." (Hickliff: Tr. 128). When asked how Fernandez's hair was "different today, " Hickliff responded that "[h]e has a low haircut." (Hickliff: Tr. 129). Hickliff did not see the driver and could not testify as to what the driver looked like. (Hickliff: Tr. 173).

After the car made a right turn on Amsterdam Avenue, Hickliff "ran towards 504" and went upstairs to find his grandmother on the third floor, with whom he had been living at the time. (Hickliff: Tr. 135-36, 180). On the way, Hickliff observed that Quintero, whom he called "Manny, " had suffered a head wound and was on the ground. (Hickliff: Tr. 135, 137-38). He also saw "Macho" who "got shot in the throat." (Hickliff: Tr. 135). He did not call 911 or tell any of the other people in the vicinity to do so. (Hickliff: Tr. 179). Hickliff testified that, shortly thereafter, police arrived and that he spoke to some of the police and detectives that day. (Hickliff: Tr. 139). The police also brought Hickliff to the precinct in a police car about an hour after they arrived. (Hickliff: Tr. 194-196). At the precinct, Hickliff "wrote everything that happened" and "put [his] name to a statement." (Hickliff: Tr. 197).

The prosecution and defense stipulated on the record that there was only one recorded statement from Hickliff. (Tr. 205-06). Hickliff was shown this statement and testified that it did not contain his handwriting but that it was read to him at the precinct by a detective "[a]fter [he] signed it." (Hickliff: Tr. 206-07). He clarified that he told the defective what happened, the detective recorded what Hickliff was telling him in writing, and then the detective read to Hickliff what he had written down before Hickliff signed the piece of paper. (Hickliff: Tr. 212, 305). As recounted at trial, Hickliff told the detective that he had seen a white Hispanic male who was five feet, eight inches to five feet, nine inches tall and about 35 years old, with a thin build. (Hickliff: Tr. 215-16). He also said the man had graying hair and a small ponytail. (Hickliff: Tr. 218). He had also said that the person "had a U-21 or Mach ten automatic pistol, " and testified at trial that a "Mach ten" looks like an Uzi. (Hickliff: Tr. 219). That same night (i.e., June 10, 1993) he also "looked at certain pictures" but did not identify any of the pictured individuals as the shooter, instead saying that an individual in one of the pictures "looks like him." (Hickliff: Tr. 229-30). He also told the detective that the "person looked like the perpetrator if the hair was pulled back and the hair was a different color." (Hickliff: Tr. 264).

Two years later, on July 20, 1995, Hickliff was brought by Officer Melino by car to the District Attorney's Office, having been told that he was "going down for a lineup." (Hickliff: Tr. 140-41). Hickliff "had to wait about five minutes" before he viewed the lineup, and Officer Melino brought him to the room where he was to view the lineup. (Hickliff: Tr. 141, 143). Officer Melino did not enter the room with Hickliff. (Hickliff: Tr. 144). When the curtain opened, Hickliff "[saw] the defendant in that lineup" and he was wearing number "five." (Hickliff: Tr. 145).

3. George Rosario

George, a cousin of Quintero and Hickliff, also testified. (George: Tr. 936-37). He was sixteen years old at the time of trial. (George: Tr. 936). On the evening of June 10, 1993, George was riding up the block on his bicycle when he saw a car "make a u-turn" and stop in front of 504 West 135th Street. (George: Tr. 937, 939). The car was a Toyota Corolla of "a beige color" with "silver spray paint on the side" and "patches, " and it consisted of "two or three colors." (George: Tr. 944-45). George then saw a man with a gun exit the car's passenger side and the man "looked at [George's] face" before looking to the other side and beginning to shoot. (George: Tr. 943-44). At that point, George had stopped riding his bicycle in the middle of the street and was about twenty to twenty-two feet from the man who exited the car. (George: Tr. 945-46, 967). George could see Quintero, who was about eighteen to twenty feet away, standing with "Eddie" and a few other individuals. (George: Tr. 968). He could also see that the man who exited the car was holding a machine gun. (George: Tr. 973). When the man started shooting, he was "facing straight at [Quintero]." (George: Tr. 943). There was nothing blocking George's view of the shooter. (George: Tr. 946-47). George testified that the person's hair "looked... grayish like two to three colors but he had grayish hair" and "[y]ou could see the gray." (George: Tr. 996). He added that he "saw more the gray than the other color." Id . George also testified that the person had a "pretty long ponytail, " about four inches long, reaching somewhere between the base of his neck and the hairline. (George: Tr. 996-97).

George saw Quintero "throw himself into" the building. (George: Tr. 947). After the shooting stopped, George saw the shooter get back inside the same car, on the passenger side, and the car went up the block slowly and made a right turn onto Amsterdam Avenue. (George: Tr. 949-50). After the shooting, George cut his wrist punching a window pane because he was angry that his cousin had been shot. (George: Tr. 952, 977). He was taken in an ambulance to St. Luke's Hospital before Quintero was taken away. (George: Tr. 953). The police came to the hospital the next day, while George was still there, and they gave him a business card with instructions to come to the precinct to "see some pictures." (George: Tr. 955, 984-85). While in the hospital, George told one of the officers what he had seen that night. (George: Tr. 985). George went to the precinct approximately two days later, after he was released from the hospital. (George: Tr. 988). When he went to the office, he was shown several pictures. (George: Tr. 991).

On July 20, 1995, George went to the District Attorney's Office to view a lineup. (George: Tr. 961). Officer Melino came to pick up George along with his cousin Hickliff. (George: Tr. 962-63). The two waited in the lunch room until Melino brought Hickliff in to view the lineup while George stayed in the lunch room. (George: Tr. 964-65). Several officers were present with George in the viewing room but nobody told him "whom to pick out" or "which person to pick out." (George: Tr. 1000-01). George testified that when the curtain opened, George picked out the person "who did the murder." (George: Tr. 1001). He testified that Fernandez was wearing number "two." (George: Tr. 965).

When asked if George saw the man who shot his cousin in the courtroom, George pointed to Fernandez. (George: Tr. 938, 942). When asked if there was "anything different" about Fernandez between June 10, 1993, and the day of the trial, George responded, "[h]is hair." (George: Tr. 948). George clarified that on June 10, 1993, Fernandez "had like grayish hair, like a ponytail." (George: Tr. 949).

4. Jesus Canela

Jesus Canela testified that on the evening of June 10, 1993, he was standing between his building, number 506 on West 135th Street, and the building next to it, number 504. (Canela: Tr. 318-19). While he was standing between 504 and 506, he "saw a car coming. And it stopped between both the buildings." (Canela: Tr. 319-20). The car had been "going around the block... like five or six times" that day. (Canela: Tr. 320). It was a Toyota Corolla with a "primed burgundy" color, meaning it was a "burgundy car getting ready to get painted." (Canela: Tr. 320, 326). When the car stopped, it was double-parked. (Canela: Tr. 329). It was between a blue van and a gray car. (Canela: Tr. 320).

After the car stopped, "this man comes out of the car and he starts shooting." Id . The man "got out of the passenger side. He pulled out the gun, stood there for like two seconds and started shooting." (Canela: Tr. 331). Canela testified that the gun "was an Uzi." Id . When asked how the man held the gun while he shot, Canela indicated that the man had his right arm outstretched and his left arm extended, with the left hand under the right hand. (Canela: Tr. 331-32). Canela testified that when the man exited the car and started shooting, the man was "facing straight at the building" and Canela was "facing at him." (Canela: Tr. 332). It was still light out at the time of the shooting, but Canela was "seeing through the window of the bus." Id . Canela could not see the driver because the car had tinted windows. (Canela: Tr. 390). He also testified that the windows on the car were rolled up. (Canela: Tr. 391). At the time of the shooting, Canela was about twelve to fifteen feet away from the shooter. (Canela: Tr. 333). Canela said he saw someone named Carlito run "into the building first, then Manny went after him. Then he started shooting." (Canela: Tr. 334).

Canela testified that the man then got back into the car, and the car "started going slow to the corner and he ate the light, " meaning the car drove through a red light. (Canela: Tr. 335-37). Canela saw the car make a right turn on Amsterdam Avenue. (Canela: Tr. 337). After the shooting, Canela "went straight home." (Canela: Tr. 344).

Canela testified that the shooter's hair was "grayish and black" and that he "had a ponytail." (Canela: Tr. 334). When asked if he would recognize the shooter and whether he saw the person in the courtroom, Canela said "I remember his nose, his eyes and the mouth" and pointed to Fernandez. (Canela: Tr. 330).

Canela, who was eighteen years old at the time of his testimony, testified that he first spoke to authorities about the shooting of Ramon Quintero two weeks prior to his appearance at Fernandez's trial. (Canela: Tr. 315, 358). He said police officers had been "knocking on the apartments to see if [anyone] knew something about Mannie [sic]." (Canela: Tr. 359). Canela's was one of the apartments the police came to, and they "came into [his] apartment and [he] told them what [he] saw" after the police said they would "protect" Canela, meaning "[n]othing would happen" to him. Id . Canela recalled that the officers who came to his home were Mark Tebbens and A.J. Melino. (Canela: Tr. 360-61). The officers asked him how old the person who did the shooting was, and Canela told them "[h]e was in his 30's, 40's." (Canela: Tr. 378). He also told them the person was about his height, with gray hair and a ponytail. (Canela: Tr. 378-79). When asked at trial how old he thought Fernandez was, Canela said "[r]ight now he is in his twenties." (Canela: Tr. 407). When asked what led him to the conclusion that the shooter was in his thirties or forties, Canela responded, "[h]is hair." (Canela: Tr. 409-10).

Prior to trial, Canela also met and spoke with Assistant District Attorney Deborah Hickey and Officer Tebbens about the case. (Canela: Tr. 374, 376). Neither Hickey nor Tebbens asked Canela to make any photographic identifications of anyone other than the victim, Ramon Quintero. (Canela: Tr. 401-02). Although Hickey and Tebbens had told Canela that his trial testimony would entail cross-examination under oath, they did not tell him that Fernandez would be in the courtroom. (Canela: Tr. 384-85). The trial judge asked Canela if he "pick[ed] out this defendant because of where he was sitting, " and Canela answered in the negative. (Canela: Tr. 385-86). He testified that he picked the defendant "[b]ecause [he] recognized his face and that was him." (Canela: Tr. 385-86). Canela clarified that he recognized the defendant "[f]rom the date he shot Manny. Only his hair has changed. Only the hair." (Canela: Tr. 386).

Prior to the visit from Tebbens and Melino, Canela "never went to the police at all" and had never told his family members or anyone else what he saw the day of the shooting. (Canela: Tr. 369-70). He did not speak about the incident because he "was scared." (Canela: Tr. 405). Canela testified that in the days following the shooting, Canela was told by a friend named Petulo that Quintero had been killed, but he did not speak to anybody else about the shooting or what he saw. (Canela: Tr. 363-65). Canela also found out, two or three days after the shooting, that "[s]ome guy named Macho" had been shot in the neck. (Canela: Tr. 366-67).

5. Harold Marcano

Harold Marcano, a twenty-eight-year-old self-employed computer repair technician, testified that on June 10, 1993, he was at home in his apartment at 507 West 135th Street talking on the phone with a friend when he "heard three gunshots." (Marcano: Tr. 411-13). He "turned and looked out the window and [he] saw a man" who had "just finished shooting a gun and he had turned, got into a car and they drove off." (Marcano: Tr. 413). Marcano's window faced out onto 135th Street. (Marcano: Tr. 417). He stated that building 504 was "right across the street" from his apartment. (Marcano: Tr. 417-18). He added that "502, 504, 506 are directly across the street when I look out my windows." (Marcano: Tr. 418). When Marcano looked out his window after hearing the gunshots, he saw a man who "had just put his arm down" and "had a gun in his hand." (Marcano: Tr. 419). The man entered a double-parked car, and the car drove up the street. Id . The car was a "Toyota Corolla, early to mid 80's, burgundy, brownish color. Not in too good condition. It had silver or grayish primer on it, like a car had work done to it." (Marcano: Tr. 420). After hanging up with his friend and turning to the window, Marcano dialed 911 and told the operator what he had seen and heard. (Marcano: Tr. 423). The shooter was a male who was "[n]ot too dark. Like light. Fair complexion, " (Marcano: Tr. 424), by which he meant "[s]lightly brown tanned" (Marcano: Tr. 425). Marcano was able to see that the man had "a light colored shirt" with "vertical stripes" but could not get "a good look at his face" because Marcano's apartment is on the fifth floor. Id . Marcano continued to look out the window "on and off." (Marcano: Tr. 435). He saw "a kid... run out of the building" in front of which the shooting had occurred and "he ran down the street toward Broadway" holding his wrist as if he had been hurt. (Marcano: Tr. 435-36). "[N]ot too long after" the shooting, a police officer came to speak with him. (Marcano: Tr. 432).

6. Manuel Medina

Manuel Medina, a forty-four-year-old limousine driver, was "playing dominos... [on] the northwest corner of Amsterdam across a hundred 35th Street" on June 10, 1993, when he "heard what appeared to [b]e gun fires." (Medina: Tr. 507-09). Although Medina saw "people rushing over" to where the gunfire erupted, he "was more interested on looking what was coming out of the area." (Medina: Tr. 511). Medina testified that he "made eye contact" with "what appeared to [him] to be like an old beat up Toyota with two passengers in there." (Medina: Tr. 512). When the car left the scene, it "came to a stop because there was more traffic ahead of them" and that is when Medina "took a good brief moment to just observe." (Medina: Tr. 519). At that point, Medina was standing approximately fifteen feet away from the car, facing the passenger side of the car and "stareing [sic] right at [the passenger]." (Medina: Tr. 520-21). It was still light out at that time and there was nothing blocking Medina's view of the car. (Medina: Tr. 522-23). Medina was "concentrating... on the face" but testified that "his hair did have just different color. It seems like it was brown or gray." (Medina: Tr. 523). He could not testify as to what the individual on the passenger side was wearing, however, because he could "only see from the shoulder up." (Medina: Tr. 555). Medina stated that the individual's hair was "medium" meaning "not long, not short, " but he could not estimate the person's age. (Medina: Tr. 556). Medina could "vividly recall and see the right side of his face." (Medina: Tr. 556). He testified that the individual was "[l]ight skinned." (Medina: Tr. 558). When asked if he would be able to recognize either of the two passengers, Medina said "I probably will." (Medina: Tr. 513). Medina clarified that "when [he] saw this individual [he] only saw the profile of his right face from the vehicle." (Medina: Tr. 513). Medina then pointed to Fernandez. (Medina: Tr. 514). The judge then ordered Fernandez to stand up and show the right side of his face to Medina, and Medina confirmed that Fernandez was "the man [he] saw in the car" and more specifically, on the passenger side of the car. (Medina: Tr. 515-16).

After the shooting, Medina remained on the corner where he was standing for about an hour and then went home. (Medina: Tr. 536). He spoke to a police officer about what he had seen on that same afternoon. (Medina: Tr. 538).

Officers Melino and Tebbens contacted Medina about two or three weeks before trial, though prior to that he had not been in contact with the authorities since the day of the shooting. (Medina: Tr. 541, 545).

7. Detective William Parsons

Detective William Parsons, a member of the New York City Police Department for fourteen years, testified that he responded to a location at 135th Street between Amsterdam Avenue and Broadway on June 10, 1993. (Parsons: Tr. 602-04). Parsons was the lead detective on this investigation. (Parsons: Tr. 605). When Parsons arrived at the crime scene, he encountered "a lot of people in the street." (Parsons: Tr. 609). There were approximately six uniformed officers on the scene when Parsons arrived, and Parsons, along with Detective Frederick Appel, were the first detectives to arrive. (Parsons: Tr. 612). Parsons did not view the body of the deceased, and he learned that two other individuals had been taken to the hospital. (Parsons: Tr. 614). Parsons remained at the scene for "half an hour, 45 minutes" or "long enough to make the proper notifications" to people within the police department. (Parsons: Tr. 614-15). Parsons did not direct other officers to conduct any interviews. (Parsons: Tr. 615-16). He testified that "that's not the way it's done. You don't interview a witness or a possible witness at the scene of a homicide." (Parsons: Tr. 628-29). A "canvas" was performed later that evening. (Parsons: Tr. 636-37). According to Parsons, a "canvas" involves "a door to door search, apartment by apartment, a person by person search of the area surrounding a crime scene." (Parsons: Tr. 641). This canvas entailed ascertaining the names and addresses of witnesses. (Parsons: Tr. 637). Parsons did not believe that the names "Jesus Canela" nor "Manuel Medina" had been given to any of the officers canvassing the area. (Parsons: Tr. 637-38). Parsons also testified to receiving "certain anonymous telephone calls in regards to this investigation, " but none of the callers had mentioned the name "Pablo Fernandez" or "House."[2] (Parsons: Tr. 638). One anonymous caller also provided a license plate number, but when the police "ran the license plate through the DMV, " they were provided with "a photo of the person and the person really didn't fit the description... of what [they] had been getting as the person who did the shooting." (Parsons: Tr. 644).

While at the scene, Parsons had seen Hickliff, his mother, his aunt, and some other cousins, whom he knew to be family members of the deceased. (Parsons: Tr. 616-17). After finding out "who [Hickliff] was and... that he was present" during the shooting, Parsons "instructed someone to remove [Hickliff] to the 30th Precinct." (Parsons: Tr. 617-18). Parsons believed that Hickliff "was interviewed by someone else at the 30th Precinct, " and Parsons did not speak to any witnesses at the precinct. (Parsons: Tr. 628). Parsons testified that, in addition to being interviewed at the precinct, Hickliff "viewed photos at the precinct." (Parsons: Tr. 630). According to Parsons, Hickliff viewed "a minimum of a hundred photos." (Parsons: Tr. 631-32). Fernandez's photograph was not among those that Hickliff saw. (Parsons: Tr. 634). Hickliff had "chosen a photograph and said this looks like the shooter." (Parsons: Tr. 635). After having his recollection refreshed with a report of the interview with Hickliff, Parsons testified that Hickliff said "the guy looked like [the shooter] but his hair wasn't pulled back as the person that did the shooting was." (Parsons: Tr. 640-41). Hickliff also said "it was a different color" and indicated "it was like grayish or gray spots on the side of the person that did the shooting's head that he recalled." (Parsons: Tr. 641). Hickliff did not indicate the person in the photograph was the shooter, but stated that the person "look[ed] like" the shooter. Id.

Parsons then went to St. Luke's Hospital. (Parsons: Tr. 618). There Parsons met George who had not been shot but who had "cut himself pretty bad" on his hand. Id . Parsons left a business card and asked George to call him when he was released. (Parsons: Tr. 619). Parsons also went to Columbia Presbyterian Medical Center, and spoke with a doctor about Eddie "Macho" Serrano, who had been identified to Parsons as one of the gunshot victims. (Parsons: Tr. 610-11). Serrano was being treated in the operating room at the time of Parsons' visit. (Parsons: Tr. 610, 620). One of the officers present at the crime scene had given Parsons the name "Macho." (Parsons: Tr. 621). Parsons conducted a brief interview of Serrano the next day. (Parsons: Tr. 625). Serrano did not give a written statement. Id . Parsons did not see Serrano again after this encounter, although he made "many attempts to see him." (Parsons: Tr. 626). Parsons testified that he "used the services of everybody in the neighborhood that knew of him" but that Serrano "was very evasive." Id . Parsons testified that he "never really stopped the investigation" but the case "got to a point where [he] had exhausted all the leads that [he] had and [he] was just going over things again." (Parsons: Tr. 627). He said the case "got cold" around eight months later. Id.

8. Officer Albert Melino

Officer Albert Melino became involved in the investigation and arrest of members of the Yellow Top Crew in the summer of 1994. (Melino: Tr. 1178). Melino had been assigned to HIU in February 1994, prior to the arrests of the Yellow Top Crew members. Id . Subsequent to these arrests, Melino met with Mejias and also became involved in the Quintero homicide investigation. (Melino: Tr. 1178-79). Melino began by "read[ing] the case file" and going "through all the detective's notes." (Melino: Tr. 1179). Then he "tried to contact the witnesses they had already spoken to and see if they still remembered the case." (Melino: Tr. 1179-80). However, Melino was not "able to contact all of the witnesses that [he] discovered by perusing that file." Id . Melino contacted Hickliff, George, and Marcano, among other witnesses. (Melino: Tr. 1180-81). Melino also visited the neighborhood where the shooting occurred to "talk to people in [the] neighborhood" and to "recanvass" the area." (Melino: Tr. 1181). During the "early part" of the investigation, Melino and the officers with whom he was working, Garcia and Tebbens, "did not get to talk to very many people." (Melino: Tr. 1183). On July 20, 1995, Melino "brought George and [Hickliff] Rosario down to view a lineup." (Melino: Tr. 1184). Subsequent to the lineup, Melino and Tebbens returned to the neighborhood to "do recanvassing of the area." (Melino: Tr. 1185). During one such visit, during or after a major snowstorm, Melino and Tebbens had more success recanvassing buildings because more people were home than on prior visits. (Melino: Tr. 1185). On the day of the snowstorm, they "found an 18 year old boy named Jesus who was present at the time of the shooting and another gentleman, Manny who was also present at the time of the shooting." (Melino: Tr. 1186). Melino also "put the word on the street" that he wanted to speak to Eddie "Macho" Serrano, but could not locate him after "many attempts to do so." (Melino: Tr. 1186-87).

With respect to the lineup that took place on July 20, 1995, Melino "transported both the Rosarios down to [HIU's] office." (Melino: Tr. 1187). That is, he "picked them up in the car and drove them down." (Melino: Tr. 1188). He then "brought them up to [HIU's] office and put them in the lunchroom." Id . The Rosario cousins waited there "for some time" accompanied by either Melino or Detective Garcia. (Melino: Tr. 1188-89). At some point, Melino and Garcia "brought Hickliff and George down [from the 15th floor to the 9th floor] and put them in the Grand Jury room awaiting the lineup." (Melino: Tr. 1189). Subsequently, Melino brought Hickliff "down the hall to the line-up room" but Melino did not go in, instead waiting "outside the door." (Melino: Tr. 1190). Melino then took Hickliff "back upstairs to [HIU's] office." Id . After Hickliff and George viewed the lineup, Melino brought them home. (Melino: Tr. 1192).

Melino confirmed that, because he knew that Fernandez was scheduled for trial, he "went out... looking for witnesses other than the ones that [he] had." (Melino: Tr. 1196). That is, he "went out to recanvass buildings." Id . Melino testified that he had never "give[n] any money" to Canela or Medina for "coming down" to the District Attorney's Office. (Melino: Tr. 1202). However, Melino and the other detectives had paid for some meals for Canela and Medina, at times out of their own money. (Melino: Tr. 1203-04).

9. Martin Mejias

Martin Mejias, the leader of the Yellow Top Crew, testified at Fernandez's trial pursuant to a cooperation agreement with the District Attorney's Office. According to Mejias, the Yellow Top Crew was a drug-selling operation that operated between 106th and 110th Streets on Columbus Avenue in Manhattan. (Mejias: Tr. 748-49, 753-55, 784-85, 810). Mejias testified that he made "maybe a million dollars" in connection with his drug activity. (Mejias: Tr. 914). Mejias stated that, in addition to his drug activity as the leader of the Yellow Top Crew, he was also involved in "[v]arious shoot-outs and [had] ordered three homicides." (Mejias: Tr. 783). Mejias's last arrest had taken place on May 5, 1994. (Mejias: Tr. 792-93). Mejias was charged with "conspiracy" and pled guilty in exchange for "fifteen to life." (Mejias: Tr. 793). He testified that he entered into a cooperation agreement with the District Attorney's Office pursuant to which he had to "cooperate in full with this case and any crimes [he knew] of truthfully." (Mejias: Tr. 794). The agreement provided that Mejias would receive a sentence of "fifteen to life... if the Judge would permit it." (Mejias: Tr. 922).

In the spring and early summer of 1993, Mejias spoke with Jose Luis Marte, the leader of the Red Top Crew drug gang, about "an argument or a dispute" Marte was having with "a person from 135th Street." (Mejias: Tr. 795).[3] Marte told Mejias that Marte "was having some conflict with a kid on 135th Street named Manny, " and Mejias testified that "[p]revious to that Jose Luis had killed the dude's friend or cousin I believe." Id . According to Mejias, "Manny would make threats at Jose Luis" and "Jose Luis was fed up with that." (Mejias: Tr. 796). Marte "wanted Manny killed." Id . Mejias testified to never having seen Manny "drive around the block or make threats" toward Marte. Id . When asked if Mejias had "agree[d] to aid Jose Luis in some way in this matter, " id., Mejias testified that on one particular day, Marte, Mejias, Fernandez, and several other individuals armed themselves and traveled to 135th Street to see if they could find Quintero. (Mejias: Tr. 797). They "discussed going up to 135th street, going to see Manny or anybody else, to shoot the block up if we see Manny, shoot him." Id . He said there were nine people in the group but they "were two guns short" and that Fernandez "went to 107th Street to get another gun for him." Id . Mejias saw Fernandez return with a gun. (Mejias: Tr. 800). When the group arrived on 135th Street, however, "[n]obody was out there [and] it was already dark, " so they returned back to 109th Street where they had come from. Id . After that night, Marte told Mejias that Marte was going to hire Fernandez to have Quintero killed, and that Marte was going to pay Fernandez twenty-five hundred dollars. (Mejias: Tr. 801-02). During a subsequent conversation, Marte showed Mejias a "gun that he bought so he could give [Fernandez]." (Mejias: Tr. 802-03). Mejias said it was a "Mach-10" gun that was "jungle gray" in color. (Mejias: Tr. 803). The next time Mejias saw Marte after this conversation was the night of the homicide, and Marte told Mejias that "Manny was already dead." (Mejias: Tr. 804). Mejias traveled to 135th Street with Marte and another individual, and they "asked a kid on the block what had happened." Id . They were told that "some kid had got shot." Id.

At some point after June 10, 1993, Mejias had a conversation with Marte "about a disguise that [Fernandez] was supposed to wear to 135th Street." (Mejias: Tr. 808, 866). Mejias testified that Marte told him Fernandez "was going to color his hair with Halloween spray that you use to color your hair, from the previous Halloween. He had a can of dye of white or green." (Mejias: Tr. 808). Marte told Mejias that "they wouldn't be able to [recognize Fernandez] because he had used spray on his hair." (Mejias Tr. 866). Mejias had no knowledge, however, as to how Fernandez was wearing his hair on June 10, 1993. (Mejias: Tr. 867). He had seen Fernandez "a few times... in the month of May, " approximately "[b]etween [May] 15th and 30th of May." (Mejias: Tr. 867-68). When Mejias saw Fernandez during that period, he "would see [Fernandez] with a hat on in his car" and had seen him "with a ponytail" during the period of May "15th towards the end of May before the shooting." (Mejias: Tr. 868). Mejias also testified that Fernandez "had a ponytail about a week before the shooting on 135th Street." (Mejias: Tr. 903). Mejias saw Fernandez and Marte together again "a month later at most" after Quintero had been killed. (Mejias: Tr. 808).[4] At that time, Fernandez came to Marte's house and Marte "gave [Fernandez] some money." (Mejias: Tr. 809). Fernandez then left. Id . By that time, according to Mejias, Fernandez had "shaved [his hair] off completely." Id.

10. Raymond Rivera

Raymond Rivera, another member of the Yellow Top Crew, testified at Fernandez's trial pursuant to a cooperation agreement. (Rivera: Tr. 1134). Rivera was a "lieutenant" in the gang, meaning he "took orders from [another leader] and Chango, the two bosses" and "gave the orders to the rest of the workers." (Rivera: Tr. 1038-39). Rivera was in charge of carrying drugs and guns "from one place to another" and counting money. (Rivera: Tr. 1039). Rivera also admitted to having committed about five hundred felonies during his lifetime. (Rivera: Tr. 1093). He testified that on one particular occasion, he and some other YTC members got into a dispute with another drug dealer during which Rivera shot the drug dealer but did not kill him. (Rivera: Tr. 1040, 1094). Rivera had committed crimes in connection with his drug activity, including serving as a "lookout" for during an armed robbery for which he served two years in prison (Rivera: Tr. 1029-34), absconding from his work release program, and trespassing in connection with a domestic dispute (Rivera: Tr. 1035-36). On another occasion, he robbed a drug supplier of cash and drugs for selling him "garbage" (Rivera: Tr. 1113-14), and also stole "five kilos" of cocaine from a supplier (Rivera: Tr. 1117). Rivera served six months in jail for being "caught... with a bullet proof vest." (Rivera: 1110-11).

During his time as a lieutenant in the YTC, Rivera knew Jose Luis Marte of the RTC. (Rivera: Tr. 1053-54). According to Rivera, Mejias and Marte were "[r]eal tight, close friends." (Rivera: Tr. 1054). Marte told Rivera "he was having a dispute with [a] fellow on 135th Street." (Rivera: Tr. 1058). On one occasion, Marte told Rivera "[h]e planned to kill the kid." Id . Marte apparently said "he was going to kill him himself, " but another man by the name of "Trimboline" said "it can't go down like that because they're going to know... [and] [t]hey were going to point fingers on him." (Rivera: Tr. 1059-60). Marte decided to "pay somebody to do it" in order to avoid "fingers pointing towards them." (Rivera: Tr. 1060). During that conversation, Marte and Trimboline discussed "[w]ho they were gonna hire" and they were "talking about Pito and House." Id . Rivera also testified that Marte was "[a]nxious to see [Manny] dead." (Rivera: Tr. 1061). Rivera stated that, in addition to this conversation, there were "a couple of times" he discussed with Marte "having this person Manny killed on 135th Street." Id . According to Rivera, "every time Manny would drive by around the block, [Marte] would start making faces, cursing at them [sic], pointing the finger making threats." Id.

On the night Quintero was killed, Rivera was on the "block" at 109th and Columbus with Marte. (Rivera: Tr. 1062). At a certain point, when it was "getting dusky" and everybody that had gathered around the area had left, "[Marte] stayed there." (Rivera: Tr. 1063). According to Rivera, Marte "started laughing like about time.' And he goes they already killed him, that's good for his ass.'" Id . At that point, Fernandez "came up to [them]. And he said I go[t] him, I left him like a piece of shit on the floor" in Spanish. Id . Fernandez also "pulled the shell of the bullet" and said "this is the bullet that killed Manny." Id . Rivera testified that Fernandez also made hand gestures mimicking the movements of a pistol. (Rivera: Tr. 1154). Fernandez and Marte were "making jokes and laughing about it." (Rivera: Tr. 1063-64). Marte then said "my worries is over." (Rivera: Tr. 1064). Rivera testified that the only people present for this conversation were himself, Marte, and Fernandez. (Rivera: Tr. 1154).

When Rivera saw Fernandez that day at dusk, Fernandez "had a little ponytail, salt and paper hair, grayish." (Rivera: Tr. 1065). Fernandez's hair was "the same way a couple of days before" the shooting. (Rivera: Tr. 1066). The ponytail had "a little knot in the back... like a little ball." Id . Fernandez "had his hair in a ponytail" about a week before the shooting, but the hair was "shaved" a couple of days later. (Rivera: Tr. 1165-66). A few days before the shooting, Fernandez's hair was "[h]is natural color, " but sometimes Fernandez "would paint it a different color" and "sometimes he would wear a wig." (Rivera: Tr. 1167).

Rivera testified that he had a "falling out" with Mejias and another YTC leader named Tito, and he thereafter became involved in assisting a rival drug dealer in carrying out a "hit" against Mejias and Tito. (Rivera: Tr. 1045-46). Tito and Mejias wanted to kill Rivera because they became aware that Rivera "wasn't doing everything they wanted [him] to do." (Rivera: Tr. 1126). Rivera helped an individual named Ray Reyes identify Tito and Mejias because Reyes was apparently interested in killing those two men. (Rivera: Tr. 1123). Reyes paid a "hit man" to kill Tito and Mejias. (Rivera: Tr. 1124).

Rivera felt that "the more [he] ran from the cops, the worse it would have gotten for [him]" because he was "involved in a contract killing." (Rivera: Tr. 1121). Rivera decided to "hide out for a while, " and when he became aware that "the cops were looking for [him], " he decided to contact the District Attorney's Office. (Rivera: Tr. 1047-48). Rivera "decided to turn [him]self in" because he decided that he did not want to risk being prosecuted and "spen[ding] the rest of [his] life in jail." (Rivera: Tr. 1131-32). He turned himself in "on the advice of [his] lawyer and [his] girlfriend." (Rivera: Tr. 1132). The District Attorney's Office told Rivera that if he were to "speak the truth [about] any criminal activity [he] knew about, anything [he] was involved in, " he would not go to jail. (Rivera: Tr. 1137). The District Attorney's Office paid for Rivera to live in hotels and an apartment, and he also received "living expenses" from the District Attorney's Office. (Rivera: Tr. 1050-51).

C. The Verdict

On February 6, 1996, the jury found Fernandez guilty of murder in the second degree. (Tr. 1537).

D. Motion to Set Aside the Verdict

1. Motion Pursuant to N.Y. Crim. Proc. Law § 330.30

On February 15, 1996, Assistant District Attorney Deborah Hickey sent a letter to Fernandez's attorney, Hermione Perlmutter, stating that Officer Albert Melino had been arrested and charged with Criminal Sale of a Controlled Substance on February 9, 1996, three days after the jury reached its verdict in Fernandez's trial. See Letter, dated Feb. 15, 1996 (annexed as Ex. 6 to Tenzer Decl.). The letter stated that the "charge stems from events that allegedly took place in 1991 and 1992" and that the District Attorney's Office "was not in possession of sufficient information to permit disclosure until after the verdict was returned... on February 6, 1996." Id . On March 5, 1996, Fernandez filed a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30 on the grounds that the prosecution knew or should have known about the investigation of Officer Melino but had engaged in prosecutorial misconduct by failing to disclose this information to the defense during trial. See Motion to Set Aside the Verdict, dated March 5, 1996 (annexed as Ex. 7 to Tenzer Decl.) ("330 Motion"). The motion asserted that "had the defense known" of Melino's misconduct, "the strategy of the defense would have been otherwise." Id . ¶ 8. It further asserted that "had the jury known of [Melino's] history the outcome of this trial would have been otherwise." Id . ¶ 10.

2. Hearing on 330 Motion

An evidentiary hearing on the 330 Motion was held on April 18, 1996. See Transcript of Proceedings Before the Hon. Leslie C. Snyder, held April 18, 1996 (annexed as Ex. 8 to Tenzer Decl.) ("330 Hg."). William Burmeister, the chief of the Official Corruption Unit of the New York County District Attorney's Office, was the only witness who testified at the hearing. (Burmeister: 330 Hg. 17-18). As chief of the Official Corruption Unit, Burmeister was responsible for supervising investigations and prosecutions related to corruption among law enforcement officers. (Burmeister: 330 Hg. 18). Burmeister testified that on January 30, 1996, he had a meeting with Patrick Kelleher, chief of the New York City Police Department Internal Affairs Bureau ("IAB"), to discuss Burmeister's investigation in an unrelated case during which he told Kelleher that he planned to call Officer Albert Melino as a witness before the grand jury. (Burmeister: 330 Hg. 20). Kelleher then told Burmeister that Kelleher had received a "log" (i.e., a complaint) on Melino that morning relating to a "past narcotics sale." (Burmeister: 330 Hg. 21). Burmeister testified that he received approximately 500 to 700 "logs" per year. Id . Burmeister testified that, other than Kelleher telling him the log related to past narcotics activity, Kelleher could not give him "any other detail." (Burmeister: 330 Hg. 22). Burmeister subsequently learned that on or about January 16, officers from IAB had received a phone call from New York State Troopers based in White Plains regarding Melino, and that the IAB sent officers from its "Liaison Unit" to White Plains to interview the state troopers about the matter. (Burmeister: 330 Hg. 22-23). However, the Liaison Unit officers did not notify the IAB chief about the matter until January 30. (Burmeister: 330 Hg. 23).

That same day, Burmeister notified Investigator Walter Alexander, who in turn notified Investigator Andrew Rosenzweig, about the complaint Kelleher had received. (Burmeister: 330 Hg. 34). Rosenzweig was chief investigator for the entire District Attorney's Office. Id . Burmeister did not ask the investigators to check to see what cases Melino was working on or might have been testifying in. Id . Burmeister stated that "the only way you can determine if someone is testifying [] is if they are an arresting officer" and the computer system in his office would not indicate the identity of the witnesses in a particular case. (Burmeister: 330 Hg. 35). There were no notifications sent out to any prosecutors from the office to determine whether Melino was testifying in any pending case. (Burmeister: 330 Hg. 35-36). Additionally, "nothing was done by [the] investigators or by [Burmeister]... to find out exactly where [Melino] was" or "whether he was assigned to a case that was on trial." (Burmeister: 330 Hg. 43). From the time of his first conversation with Kelleher, on January 30, 1996, and the day on which Melino was arrested, February 9, 1996, Burmeister was not aware that Melino was scheduled to testify at Fernandez's criminal trial on February 1, 1996. (Burmeister: 330 Hg. 31). His practice was not to notify prosecutors or judges about an ongoing investigation "on pure allegation, " but to wait until he was "satisfied that there is criminal conduct." (Burmeister: 330 Hg. 39).

Rosenzweig reported back to Burmeister that he was "reaching out to the liaison unit to interview these people who had interviewed the State Troopers, " and a meeting was scheduled for February 5 between Burmeister and, among others, Lieutenants Donaldson and Lotte from the Liaison Unit, who had interviewed the state troopers regarding the complaint against Melino. (Burmeister: 330 Hg. 24-25, 37). During that meeting, Burmeister questioned the Liaison Unit officers about what they had learned from the state troopers, and found out that the complaint concerned an investigation in 1991 and 1992 into the sale of half a kilogram of cocaine and the proposed sale of additional quantities of cocaine. (Burmeister: 330 Hg. 25-26). The alleged conduct took place before Melino became a police officer. (Burmeister: 330 Hg. 25). Burmeister testified that he was "somewhat surprised that an investigation of that magnitude had not culminated in an arrest" and he decided to interview the state troopers himself to "satisfy [him]self why there was never an arrest in this case." (Burmeister: 330 Hg. 26-27).

On February 6, 1996, State Troopers Neal Collello and Charles Caicedo came to Burmeister's office with tapes, photographs, and documents, and Burmeister questioned Caicedo, who had been undercover in the investigation, "at some length regarding what had happened in 1991 and 1992." (Burmeister: 330 Hg. 27-28). Burmeister listened to some of the tape recordings on February 6 with one of his investigators to "see if [they] could recognize the voice of Police Officer [Melino]." (Burmeister: 330 Hg. 29-30). He listened to the remainder of the tapes late on the afternoon of February 7 while he was driving home from work and while he was driving to work on February 8. (Burmeister: 330 Hg. 30). Burmeister explained that he was not "satisfied that an arrest should be made" until he "finally listened to every single tape." (Burmeister: 330 Hg. 41). His approach was informed, in part, by the fact that he "was very skeptical about why no one had ever arrested Officer [Melino]." (Burmeister: 330 Hg. 42). In other words, it "was just a bizarre factual scenario, " so Burmeister "insisted on hearing the tapes to satisfy [him]self." (Burmeister: 330 Hg. 48). After he finished reviewing all of the tapes on February 8, Burmeister made the decision that Melino should be arrested, and Melino was in fact arrested by IAB in Burmeister's office on February 9, 1996. (Burmeister: 330 Hg. 30, 51).

3. Decision on 330 Motion

In a written decision dated June 17, 1996, Justice Snyder denied Fernandez's 330 Motion. See Decision and Order, dated June 17, 1996 (annexed as Ex. 10 to Tenzer Decl.) ("330 Decision"). The court found that Burmeister "had only an unconfirmed allegation" that Melino had sold narcotics four years prior, and that after receiving this information on January 30, 1996, Burmeister "investigated the allegations in an expedient and professional manner." Id . at 3. The court found that "the People's Brady obligation was not triggered until February 8, 1996, the day the People reviewed the audiotapes and concomitantly ordered the arrest of [Melino]." Id . Therefore, "since the People were under no duty to disclose this information to the defendant until February 8, 1996, which was after the jury reached its verdict, " Fernandez's motion was denied. Id . The court found that, in the alternative, "any violation of the People's duty to disclose would have been harmless under the facts and circumstances of this case." Id . That is, there was no "reasonable probability" nor a "reasonable possibility" that disclosure of the evidence would have resulted in a different verdict, and it was "clear to the court that even if the defense had known about the 1991/1992 allegations against Melino, the result would have been the same: the defendant would have been convicted" of murdering Ramon Quintero. Id . at 3-4. The court found that "Melino's testimony was largely collateral to the issues at trial" and "ministerial in nature and not material to the issue of the defendant's guilt." Id . at 4. Additionally, the court concluded that "in light of [the] evidence against the defendant, defense counsel's claim that she would have employed a different trial technique [was] spurious, " and "[a]lthough the defendant may have found some productive use of the undisclosed information concerning Melino, that is simply not enough to transform it into Brady material." Id.

E. Direct Appeal of Conviction and Denial of 330 motion

On April 2, 1998, the Appellate Division, First Department, affirmed both Fernandez's conviction and the denial of his 330 Motion. People v. Fernandez , 249 A.D.2d 3 (1st Dep't 1998). With respect to Fernandez's 330 Motion, the court found that because Fernandez's request for exculpatory material was non-specific, the applicable standard of materiality was "whether there was a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different." Id . at 5 (citations omitted). The court rejected as "based entirely on supposition" Fernandez's argument that Melino's testimony was material to guilt or innocence simply because Melino "had the opportunity to improperly influence the witness's identification of" Fernandez. Id . at 6. The court found there was "not one iota of evidence that the identifications were the product of coercion or suggestion, or that Melino harbored some secret motive to influence four witnesses to falsely implicate [Fernandez]." Id . The court ultimately concluded that "given the overwhelming evidence of [Fernandez's] commission of the murder... there [was] no reasonable probability that had the jury heard of Melino's misconduct, which was unrelated to this case and occurred before he was a police officer, the jury would have rejected the identification evidence and acquitted [Fernandez]." Id . at 7 (citations omitted).

The court also rejected arguments that Fernandez made attacking the merits of his conviction. Id.

E. First Motion Pursuant to N.Y. Crim. Proc. Law § 440.10

Five years later, on April 22, 2003, Fernandez filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10, asserting claims of newly-discovered evidence and prosecutorial misconduct. See Notice of Motion, dated April 22, 2003 (annexed as Ex. 18 to Tenzer Decl.) ("First 440 Motion"). The motion was accompanied by sworn affidavits from Hickliff and George, in which both men recanted their identifications of Fernandez as the person who shot Quintero and asserted that these identifications were procured by police misconduct. See Affidavit of Hickliff Rosario, dated June 27, 2002 (annexed as Ex. B to First 440 Motion); Affidavit of George Rosario, dated Sept. 13, 2002 (annexed as Ex. C to First 440 Motion). A man named Henry Gomez also submitted a sworn affidavit in which he stated that he was the second shooting victim, that he was known by hospital staff as "Eddie Serrano, " and that Fernandez was not the man who shot him. See Affidavit of Henry Gomez, dated Feb. 5, 2003 (annexed as Ex. D to First 440 Motion). Ramon Quintero's mother, Rosa Rosario, also submitted a sworn affidavit in which she stated her belief that Fernandez was innocent and that she was convinced that George and Hickliff, her nephews, were truthful in saying they were coerced into identifying Fernandez. See Affidavit of Rosa Rosario, dated Sept. 13, 2002 (annexed as Ex. E to First 440 Motion).

On June 10, 2004, Justice Bruce Allen ordered that an evidentiary hearing be held on the motion. See Order, dated June 10, 2004 (annexed as Ex. 19 to Tenzer Decl.).

1. Hearing on First 440 Motion

The hearing began on January 18, 2005, and continued on May 24, October 12, October 17, and October 27, 2005. See Transcript of Proceedings Before the Hon. Bruce Allen, dated Jan. 18, 2005; May 24, 2005; Oct. 12, 2005; Oct 17, 2005; and Oct. 27, 2005 (annexed as Ex. 20 to Tenzer Decl.) at 3-413 ("First 440 Hg.") (page citations to this transcript refer to the page numbers assigned by ECF). The relevant testimony from that hearing was as follows:

I. Henry Gomez

Henry Gomez, who was then incarcerated for robbery and kidnapping, testified that he was shot in the neck and left hand at the same time Quintero was shot. (Gomez: First 440 Hg. 14). Gomez was incarcerated because he and an accomplice forced a man into his apartment, tied him up, and stole approximately $43, 000 in cash and about two pounds of cocaine. (Gomez: First 440 Hg. 55-56). Gomez testified that his given name was "Humberto McFarley." (Gomez: First 440 Hg. 54). He also admitted to using numerous aliases on previous occasions in connection with drug sales and arrests, and on numerous pieces of official identification. (Gomez: First 440 Hg. 64-69).

After he was shot, Gomez took a cab to the hospital, where he underwent surgery. (Gomez: First 440 Hg. 19, 74). He testified that while he was in the hospital after the shooting, he was known by the name "Eddie Serrano." (Gomez: First 440 Hg. 20). He did not know where hospital personnel got that name and did not correct anyone. Id . Despite using numerous aliases on numerous occasions, he had never used the alias "Eddie Serrano." (Gomez: First 440 Hg. 116). While he was in the hospital, Gomez spoke with police, and he told them that the shooter was a "[l]ight skinned person." (Gomez: First 440 Hg. 18). The police officer with whom Gomez spoke asked him to contact the police when he was released from the hospital. (Gomez: First 440 Hg. 82). However, Gomez did not contact the police because he is "not a snitch." Id . Approximately two years after the shooting, at the behest of Quintero's family, Gomez went to the police station, but he did not identify anyone in the photographs presented to him because he was not a "snitch." (Gomez: First 440 Hg. 85-86).

Gomez described the shooter at the hearing as a "white skinned person" with a ponytail who could "pass" as Spanish. (Gomez: First 440 Hg. 16, 19). He testified that he did not recognize a photograph of Fernandez shown to him at the hearing, that Fernandez, who was then seated in the courtroom, was not the person who shot him, and that Fernandez did not "look anything like" the shooter. (Gomez: First 440 Hg. 18-19). Gomez had gotten "a good look" at the gunman's face and did not recognize him as someone he knew. (Gomez: First 440 Hg. 111). He testified that there was nothing "about Mr. Fernandez's appearance that resembles the shooter." (Gomez: First 440 Hg. 113). Nobody had offered Gomez or his family members any money, special favors, or anything of value in exchange for his testimony or his affidavit. (Gomez: First 440 Hg. 28-29, 95). He "agree[d] to help" because he "want[ed] to free someone who is innocent." (Gomez: First 440 Hg. 29). There was no doubt in his mind that Fernandez was not the man who shot him and killed Ramon Quintero. Id.

Approximately two years prior to the hearing, Gomez had been visited in prison by Quintero's aunt, Fernandez's brother-in-law, and another friend or relative of Fernandez, and the group showed him photographs of Fernandez. (Gomez: First 440 Hg. 23). Gomez told the visitors that the man in the photographs "wasn't him." (Gomez: First 440 Hg. 91). The visitors then told Gomez they were going to have an attorney contact him. Id . In December 2004, however, Gomez told a Detective "Connolly" during an interview that the only difference between the man who shot him and the person shown to him in that photograph was that the person who shot him had lighter skin. (Gomez: First 440 Hg. 88).

Beginning in July 2002, Gomez began receiving large deposits in his prison commissary account from two of his sisters and from the common law husband of one of his sisters. (Gomez: First 440 Hg. 97). In July 2002, his sister Priscilla McFarland deposited $500, and two days later, his other sister Marie Rodriguez deposited another $500. Id . This was the most money Gomez had in his commissary account during his time in prison. Id . In December 2002, McFarland's common law husband Marvin Monell deposited another $500, and two weeks later, he deposited another $200. (Gomez: First 440 Hg. 97-98). Monell also deposited $400 in April 2003, $400 in July 2003, $500 in August 2003, and $800 in December 2003. (Gomez: First 440 Hg. 98). McFarland deposited another $800 in October 2004. Id . While Gomez was being held at Rikers Island the prior December and waiting to testify at the First 440 Hearing, McFarland and Monell deposited $300 in his commissary account. Id . Gomez said that the money came from funds that these individuals had earned. (Gomez: First 440 Hg. 99).

ii. Hickliff Rosario

Hickliff testified at the hearing that in an interview soon after the shooting, he told police that the shooter was a "light-skinned man with a ponytail, like black and gray-ish hair, and about what seemed to [him] at the time like 35 to 40 years old" with a "thin build." (Hickliff: First 440 Hg. 133). Hickliff testified that some time after the shooting, though he could not remember when, the police showed him a six-person photo array, and he identified a photograph of Fernandez as the shooter. (Hickliff: First 440 Hg. 136-38). He testified, however, that he "didn't pick it out on [his] own" and that the officer "had his finger on number four... so [his] focus was just there." (Hickliff: First 440 Hg. 139).[5] Hickliff interpreted the officer's gesture to mean "pick him." (Hickliff: First 440 Hg. 213). That is, Hickliff "was convinced to pick him out." (Hickliff: First 440 Hg. 173). Hickliff knew "in [his] heart" that he was picking out the wrong person. (Hickliff: First 440 Hg. 174). He also testified that he was picking the wrong person when he identified Fernandez at the lineup. (Hickliff: First 440 Hg. 188). However, he testified that he could not remember any of the following matters: whether he was asked if he recognized anyone at the lineup, whether he answered in the affirmative, whether he identified number "five" as the shooter, whether he was asked where he recognized number "five" from, whether he said he recognized number "five" from the day "they" killed his cousin, or any of the other questions he was asked in the lineup room the day he identified Fernandez. (Hickliff: First 440 Hg. 178-79).

Hickliff also testified that he identified Fernandez as the gunman at trial, but that his trial testimony was not truthful. (Hickliff: First 440 Hg. 142). When asked why he identified Fernandez as the gunman at trial, Hickliff responded that at the time he was "brain-washed... to pick him out" by Melino and that he "never believed it" and "just went along with what the detective was telling [him]." (Hickliff: First 440 Hg. 150-51). He said that Melino instructed him to testify that he was "a hundred percent sure that was the shooter." (Hickliff: First 440 Hg. 192). Therefore, when he testified at Fernandez's trial in 1996, he knew "every time [he] identified [Fernandez] in court it was not the right man." (Hickliff: First 440 Hg. 188-89).

At some point, Hickliff met with a private investigator and spoke with him in a car. (Hickliff: First 440 Hg. 143). He told the investigator "the guy that [he] actually picked out was not the shooter" and that the detective had told Hickliff the person he picked in the photo array was the driver and just as guilty as the shooter. (Hickliff: First 440 Hg. 144, 209). However, Hickliff "forgot" how the meeting was set up and similarly could not remember in what manner the investigator had contacted him or how he came to know the person was an investigator. (Hickliff: First 440 Hg. 180-82).

On June 27, 2002, Hickliff met with David Samel, then Fernandez's attorney, in Samel's office. (Hickliff: First 440 Hg. 157). He did not remember who drove him to the office nor how long he was there. (Hickliff: First 440 Hg. 160-62). While at Samel's office, Hickliff signed an affidavit, but he could not remember if the affidavit was already prepared when he arrived, whether he signed any other documents, or whether he read the affidavit he signed. (Hickliff: First 440 Hg. 162-63). He also testified that he did not remember what the affidavit said. (Hickliff: First 440 Hg. 164). Nor could he remember what he spoke with Samel about on that day nor whether Samel asked him any questions. (Hickliff: First 440 Hg. 166). Also, he could not remember whether in an August 2005 meeting he had told the District Attorney's Office that he had never read the affidavit. (Hickliff: First 440 Hg. 164). He did recall, however, telling Detective Connelly that he "did not want to be involved in this" and that he was "not going to come to court." (Hickliff: First 440 Hg. 185). Hickliff told Connelly that he was offered money to "continue in this" but he could not recall the person who offered him the money. (Hickliff: First 440 Hg. 186). He also testified that he did not accept the money. (Hickliff: First 440 Hg. 215).

At the conclusion of his testimony, Hickliff asked the judge if he could be heard, and he then asked Fernandez and his family to forgive him. (Hickliff: First 440 Hg. 218). He said "I know I'm doing the right thing because the truth will be told" and "I can never point him as the shooter" and that "the fact is that he was never there and I never seen him." Id.

iii. Investigator Francis Connelly

Investigator Francis Connelly began working for HIU in 1996. (Connelly: First 440 Hg. 249).[6] In June 2004, he was assigned to attempt to locate witnesses in connection with the Quintero homicide, including George and Hickliff. (Connelly: First 440 Hg. 250). He had no success in locating George despite speaking with his mother several times and leaving George messages asking that George contact him. (Connelly: First 440 Hg. 251). Connelly located Hickliff in court the prior August while Hickliff was there on an unrelated case. Id . When Connelly approached Hickliff, Hickliff was speaking with Samel, who first told Connelly that he was Hickliff's attorney, but when Connelly stated that Samel did not appear to be actually representing Hickliff in court that day, Samel introduced himself to Connelly as Fernandez's attorney and then handed Hickliff a "subpoena for him to appear in court." (Connelly: First 440 Hg. 252-53). Connelly asked Hickliff to come to his office upstairs within the same building where Connelly and A.D.A. Hickey then both spoke with him. (Connelly: First 440 Hg. 253-54). Connelly asked Hickliff why he had not returned any of Connelly's messages, and Hickliff replied that he did not "want to be involved in this" and "had no intentions of going to court." (Connelly: First 440 Hg. 254). Hickey told him that "the fact that he [had] signed an affidavit made him involved." Id . Hickliff told them that he did not want to be involved because he "sees Manny, his cousin... looking down at him and asking him why are you doing this for the guy who shot me?" (Connelly: First 440 Hg. 258).

Hickliff told Hickey and Connelly that he had gone to Samel's office with his mother and another woman he believed to be Fernandez's mother and that he signed a paper, though he did not read the paper and did not know what it said. (Connelly: First 440 Hg. 256). Hickliff told them he signed it "to avoid confrontation." (Connelly First 440 Hg. 257). He also told them that after the visit with Samel, a "man started coming around his neighborhood looking for him, " asking him to be involved in this matter, but that Hickliff told him he did not want to be involved. (Connelly: First 440 Hg. 257). Hickliff told them he thought the man was related to Fernandez. Id . He told them the man offered him money to stay involved but that he refused the money. Id . Hickliff also told them of an interview he had with a private investigator and that he "felt that the investigator was putting words in his mouth." (Connelly: First 440 Hg. 257-58). Hickliff also spoke with Hickey and Connelly about having viewed a lineup in 1995 and about having testified at Fernandez's trial. (Connelly: First 440 Hg. 258). Hickliff told them he properly picked out the person he saw commit the shooting from the lineup and that he pointed out the shooter when he testified at trial. Id . At the conclusion of the interview, Connelly asked Hickliff to write down a statement regarding what he had said that day. (Connelly: First 400 Hg. 260). Hickliff refused and left, saying that he would come back another time. Id.

Connelly testified that he also interviewed Henry Gomez on two occasions. (Connelly: First 440 Hg. 261). Gomez told Connelly that he was the second shooting victim but that he never used the name Eddie Serrano even though he was admitted to the hospital under that name. (Connelly: First 440 Hg. 261-62). Gomez told Connelly that he saw the gunman "for about a split second" before turning and running into the building. (Connelly: First 440 Hg. 262). Gomez told Connelly he was visited in the hospital by a detective but had little memory of the meeting. (Connelly: First 440 Hg. 263). Gomez went to the police station to view some photographs some time later and was never contacted by the police after that. Id . Gomez also told Connelly that in 2002, Quintero's aunt, Fernandez's uncle, and Fernandez's brother-in-law visited him in prison, and the two men told Gomez that Fernandez was convicted for the shooting but was not the true shooter. (Connelly: First 440 Hg. 264). Gomez told Connelly that the men showed Gomez some photographs and Gomez told them he did not know who the man was. (Connelly: First 440 Hg. 265). However, Gomez told Connelly that the only difference between the shooter and Fernandez was that Fernandez was darker. (Connelly: First 440 Hg. 265, 351).

Connelly also spoke with Priscilla McFarland, the sister of Henry Gomez, about her contributions to Gomez's commissary account. (Connelly: First 440 Hg. 271). McFarland told Connelly that she works as a clerk in a store and "sends him what she can" with the amounts usually being between $20 and $40, with deposits of $60 "infrequently." (Connelly: First 440 Hg. 272). Connelly inquired about any larger deposits, and McFarland responded that she "doesn't make larger deposits, except for Christmas when the family pooled their money together and would send him $100 or $150." Id . She denied ever making deposits in the amount of $500 or more. Id.

2. Decision on First 440 Motion

In a written decision dated June 13, 2006, Justice Allen denied Fernandez's First 440 Motion. See Decision and Order, dated June 13, 2006 (annexed as Ex. 21 to Tenzer Decl.) ("First 440 Decision").

The court began by noting that Fernandez's police misconduct claim was based on the hearing testimony of Hickliff, who testified that police officers "manipulated him into making a knowingly false identification of the defendant in the photo array." Id . at 2.[7] The court found Hickliff not to be a credible witness because, aside from testifying that Fernandez was not the shooter and describing the identification process, "he avoided virtually every other question that was put to him, claiming a lack of memory even as to recent events." Id . By contrast, the court found credible Detective Connelly's account that Hickliff "had made statements several months earlier that contradicted his testimony at the hearing." Id . Given Hickliff's lack of credibility, the court found that his recantation testimony would not be likely to affect the verdict. Id.

As for Henry Gomez, the court found the claim that he was "Eddie Serrano" to be credible but found his testimony regarding the identity of the shooter to be "of questionable strength." Id . In particular, when asked to describe the difference in appearance between the shooter and Fernandez, Gomez testified only that the shooter was lighter-skinned, but Justice Allen noted that this testimony was consistent with the descriptions given by the four witnesses who identified Fernandez at trial. Id . at 2-3. There were also inconsistencies in his hearing testimony and "some instances where he appeared to be caught in falsehoods." Id . at 3. In addition, Gomez was confronted with numerous prior inconsistent statements which, while explained to some extent by the defense, "would likely be effective grounds for impeachment at trial." Id . The court found Gomez's credibility would "also be subject to impeachment based on his criminal record and his failure to come forward earlier [i]n this case." Id . The court also highlighted the circumstantial evidence tending to show Gomez had been paid for cooperating with Fernandez and reasoned that while "this evidence fell short of proof, jurors would undoubtedly be aware that there could be any number of reasons why one prisoner might be persuaded to testify on behalf of another." Id.

Overall, the court found that the defense had not "established a probability that the new evidence would affect the outcome of the trial." Id . at 3. The motion to vacate the judgment was therefore denied. Id . at 5.

3. Direct Appeal of Denial of First 440 Motion

On January 15, 2009, the Appellate Division, First Department, affirmed the denial of Fernandez's First 440 Motion. People v. Fernandez , 58 A.D.3d 494 (1st Dep't 2009). With respect to the credibility of the testimony of Hickliff and Gomez, the court found "no basis for disturbing the [hearing] court's credibility determinations, which are supported by the record" given that the hearing court "saw and heard these witnesses." Id . at 495. The court held that, in any event, even if these witnesses and "another witness who recanted by affidavit only" were to exculpate Fernandez at a new trial "and all other evidence remained the same, the evidence of [Fernandez's] guilt would remain overwhelming, as [the court] found on [his] direct appeal." Id . The court found that Fernandez's claim "rests primarily on the discrepancies between his appearance and that of the described gunman" but that a "jury could find that these discrepancies are explainable." Id . Additionally, the court said that it "ascribe[d] much greater significance to the fact that, despite the brevity of their observations, two untainted, nonrecanting witnesses independently identified the same person... who was also the very same person implicated by two other witnesses, who were [Fernandez's] fellow drug traffickers." Id.

Leave to appeal to the New York Court of Appeals was denied on June 23, 2009. People v. Fernandez , 12 N.Y.3d 915 (2009).

G. Second Motion Pursuant to N.Y. Crim. Proc. Law § 440.10

On March 25, 2010, Fernandez filed a second motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10. See Notice of Motion Pursuant to CPL § 440.10, dated March 25, 2010 (annexed as Ex. 30 to Tenzer Decl.) ("Second 440 Motion"). The motion was accompanied by, inter alia, an affidavit from Jesus Canela in which Canela recanted his trial identification of Fernandez and states that his identification of Fernandez as the shooter was the result of improper influence by police officers whom he met prior to trial. See Affidavit of Jesus Canela, dated Oct. 15, 2009 (annexed as Ex. 31 to Tenzer Decl.). On June 18, 2010, Justice Allen ordered that an evidentiary hearing be held. See Order, dated June 18, 2010 (annexed as Ex. 37 to Tenzer Decl.).

1. Hearing on Second 440 Motion

The hearing commenced on December 6, 2010, and concluded on December 20, 2010. See Transcript of Proceedings Before the Hon. Bruce Allen, dated Dec. 6, 2010 and Dec. 20, 2010 (annexed as Ex. 44 to Tenzer Decl.) ("Second 440 Hearing").[8]

I. Andrew Melnick

The first witness to testify at the Second 440 Hearing was Andrew Melnick, the general counsel of the Mintz Group, a corporate investigations firm. (Melnick: Second 440 Hg. 8). The Mintz Group began working with Fernandez's counsel at Paul, Weiss, Rifkind, Wharton, and Garrison ("Paul Weiss") on a pro bono basis in August 2009. (Melnick: Second 440 Hg. 11). After multiple unsuccessful attempts, Mintz Group investigators located Canela at his home in Manhattan. (Melnick: Second 440 Hg. 12-13). They told Canela they were working pro bono with lawyers from Paul Weiss, a law firm that was representing Fernandez, and asked to speak with him "about his trial testimony and about his interactions with the police officers in the case." (Melnick: Second 440 Hg. 13). When Canela was told what the purpose of the visit was, "his eyes started to well up with tears" and "[h]e took a few seconds to compose himself" and said that "this had been weighing on him for a long time." (Melnick: Second 440 Hg. 237). When asked by the visitors to describe how he came to identify Fernandez at trial, Canela stated that the "police told him exactly where [Fernandez] would be sitting." (Melnick: Second 440 Hg. 239). This first meeting lasted about 10 to 12 minutes. (Melnick: Second 440 Hg. 13).

About a month later, Melnick arranged to bring Canela to his office to meet with defense counsel. (Melnick: Second 440 Hg. 14). He did not offer Canela or his family anything in exchange for coming to the meeting or for his cooperation. Id . That meeting lasted about four to five hours. (Melnick: Second 440 Hg. 23). During the meeting, Melnick introduced Canela to attorneys Gabrielle Tenzer and Jason Williamson, who then spoke with him and prepared a typewritten affidavit that he reviewed and signed. Id . Canela went home after signing the affidavit. (Melnick: Second 440 Hg. 25). Some time after meeting with the investigators and defense counsel, Canela called investigator William Kenny at the Mintz Group to tell him that he had been visited by investigators from the District Attorney's Office and that "they had threatened him with a perjury prosecution if he changed his testimony." (Melnick: Second 440 Hg. 26).

ii. Jesus Canela

Thirty-two-year-old Jesus Canela testified at the hearing that the person who carried out the shooting was wearing a "dark wig" with "streaks as if the person was getting older" and that he could recall the person's nose, chin, lips, and dark complexion but could not remember if the person was wearing glasses. (Canela: Second 440 Hg. 35). He thought the person was "in the thirties." (Canela: Second 440 Hg. 36). In the days after the shooting, when police were going around the neighborhood investigating, Canela's parents would not allow him to speak to anyone because his "mother did not want [him] involved." Id . Some time later, on a date Canela could not recall but probably about two years after the shooting, investigators came to his mother's apartment. (Canela: Second 440 Hg. 37). Canela invited them in and "told them everything that [he] saw" on the day of the shooting. Id . He spoke with investigators at his home once more after that and was eventually asked to visit their office, where he was shown some pictures. (Canela: Second 440 Hg. 38-39). Canela testified that he did not recognize anyone in the pictures shown to him, but that he did "ultimately identify one of the pictures." (Canela: Second 440 Hg. 39). He testified that

they were emphasizing one specific picture, and that picture was shown to me over and over and over again. And I felt, in a sense, I mean, I felt like if there was some sort of pressure being applied towards me, when it came to that same picture, and there came a point where it was asked so many times where I said, you know what, if that's the person, then that's the person. You know. I pretty much gave into saying it's obvious that you want me to point this person out, so I pointed the person out.

Id. Canela also testified that he spoke with police officers before testifying at Fernandez's trial and that they "told [him] where the person was going to be seated in the courtroom... [and] explained to [him] where the jury were going to be seated." (Canela: Second 440 Hg. 40). Canela testified that even though he identified someone at trial as the person who shot Ramon Quintero, he did not recognize that person and had never seen the person before. Id . He stated that he identified that person because he was "very afraid at that point" and that he had "never been [under] so much pressure" and that he "did something that [he] should have never done." (Canela: Second 440 Hg. 41). Canela did not believe the person he identified was the person he saw shoot Quintero. (Canela: Second 440 Hg. 49). Thus, his trial testimony was not truthful. (Canela: Second 440 Hg. 105).

Canela testified that he was contacted by investigators working on behalf of Fernandez about his testimony a few months prior to the hearing. (Canela: Second 440 Hg. 42). When they asked him about the case, he "felt like [he] had been holding onto this for so long, and [he] needed to let it out" so he "told them the truth, [he] told them what had happened, and... told them that [he] lied." Id . When Canela met with lawyers from Paul Weiss, he told them "the same thing that [he] told the investigators when they came around." (Canela: Second 440 Hg. 43). The attorneys then prepared an affidavit for him to sign which, though not prepared by Canela, was based upon him telling them "what should be said in the affidavit." Id . He signed the affidavit on October 15, 2009. (Canela: Second 440 Hg. 56).

Some time later, after Canela had already met with Mintz Group investigators and Paul Weiss lawyers, investigators from the District Attorney's Office came to his mother's home to speak with him about Fernandez's case. (Canela: Second 440 Hg. 47). Canela told them that he would not speak to them without his lawyer present. Id . One of the investigators then told Canela to tell his lawyer he was perjuring himself and that he should "look into perjury." Id.

Canela testified that nobody had offered him or his family anything of value in exchange for his testimony nor had he or his family been threatened. (Canela: Second 440 Hg. 47-48). When asked why he was testifying at the hearing, he responded, "this has been weighing heavy on me for many, many years, and I feel like I have to come out and tell the truth." (Canela: Second 440 Hg. 48).

Before Melnick came to his home in August 2009, Canela had never come forward to say that his testimony at Fernandez's trial was false. (Canela: Second 440 Hg. 84, 109). He testified, however, that he had told his wife when they "first started dating" in 2000 or 2001 about his false testimony. Id . Some time in 1996, Canela was indicted along with several other individuals for conspiracy and criminal sale of a controlled substance in the second degree based upon having sold heroin for six or seven months. (Canela: Second 440 Hg. 85-87). Canela never told the detectives, prosecutors, or his own attorney in that case that he had falsely testified at Fernandez's trial. (Canela: Second 440 Hg. 88-90). Canela entered into an agreement with the District Attorney's Office under which he was allowed to plead guilty to criminal sale of a controlled substance and receive youthful offender treatment and a sentence of five years of probation. (Canela: Second 440 Hg. 94). Canela understood that, among other things, he was agreeing to "provide complete, truthful and accurate information" when he "was asked certain questions at the court." (Canela: Second 440 Hg. 97). He confirmed that he never told anyone aside from his wife that he offered false testimony at Fernandez's trial. (Canela: Second 440 Hg. 103).

iii. Elaine Edmonds Canela

Elaine Edmonds Canela ("Edmonds"), the wife of Jesus Canela, testified at the hearing that Canela had told her in 2000 that he testified in a case involving the murder of his friend, but that "he didn't tell the truth at the time of the case." (Edmonds: Second 440 Hg. 112-13). She stated that she had also lost a friend in a shooting and that she and Canela "started to relate to each other and talk about it and share the stories." (Edmonds: Second 440 Hg. 112). Investigators from the District Attorney's Office had visited Edmonds twice within the last three months at her apartment, the first time looking for her husband who was not there because the couple were separated at the time. (Edmonds: Second 440 Hg. 113-14). Three or four weeks later, Detective Connelly and another officer came back, and Connelly said "we are not sure exactly why Jesus is doing this" and suggested a variety of reasons why he "would throw his whole life away... for this person that he says he doesn't even know." (Edmonds: Second 440 Hg. 117). Edmonds responded that she thought "it was disgusting what they were doing to [her] husband" and that he "was trying to do the right thing" but "they [were] throwing words around like perjury and prison time... [but] he [was] just trying to do the right thing, and he is being persecuted for it, and it's sad." (Edmonds: Second 440 Hg. 118).

iv. Detective Mark Tebbens

Detective Mark Tebbens testified at the hearing that, as a member of HIU, he was assigned in November 1995 to work on locating witnesses in the Quintero homicide investigation. (Tebbens: Second 440 Hg. 133-34). Tebbens worked primarily with Officer Melino from November 1995 until January 1996. (Tebbens: Second 440 Hg. 135-36). Tebbens located Jesus Canela in January 1996, a few weeks before Fernandez's trial was to start, after having "recanvassed" the block of West 135th Street by knocking on doors in the area. (Tebbens: Second 440 Hg. 137). He also located Hickliff, George, and Manuel Medina in the course of knocking on doors. (Tebbens: Second 440 Hg. 134, 137). When Tebbens and Melino first met Canela, they asked if he remembered a murder that took place three years earlier, and Canela said that he did and that he could "identify someone, " meaning that he "could identify the guy who did the shooting." (Tebbens: Second 440 Hg. 138-39, 170). He invited the officers into his apartment where he gave them a "brief description of what happened." (Tebbens: Second 440 Hg. 138). Canela told them the shooter was "a male Hispanic in his 30's or 40's" with gray or black hair, a ponytail, and dark clothing. (Tebbens: Second 440 Hg. 139). Tebbens then made arrangements for Canela to meet with A.D.A. Hickey the following week. Id.

On the day of the meeting with Hickey, Tebbens and Melino picked up Canela and Hickliff and drove them to HIU, where Hickey interviewed Canela. (Tebbens: Second 440 Hg. 140). Tebbens, working alone, brought both Canela and Hickliff back to HIU the next day to meet with Hickey again. (Tebbens: Second 440 Hg. 141). Tebbens testified that neither he nor Melino showed Canela any photographs, nor did anyone in his presence show Canela any photographs. (Tebbens: Second 440 Hg. 142, 170-72). He also testified that he never told Canela where Fernandez would be seated in the courtroom during the trial, nor did anyone ever do that in his presence. (Tebbens: Second 440 Hg. 142-43). Similarly, he never told Jesus that he "had the guy who did it." (Tebbens: Second 440 Hg. 172). Tebbens also testified that while he was working with Melino, he never saw Melino do or hear him say "anything that [he] deemed inappropriate" or "wrong" and that if he had, he "would have definitely reported it or instructed him if [he] thought it was questionable on the proper way of doing things." (Tebbens: Second 440 Hg. 176-77).

v. Investigator Francis Connelly

Investigator Francis Connelly testified that he was assigned in the fall of 2009 by the District Attorney's Office to locate and speak with Jesus Canela. (Connelly: Second 440 Hg. 179). In September 2009, Connelly went to an address in the Bronx where he thought Canela was living, but he was told by Edmonds that Canela was then living with his mother on 135th Street. (Connelly: Second 440 Hg. 180). When Connelly visited Canela at his mother's home, Canela told him "that under advice of his attorney, he did not want to speak" with Connelly. Id . Connelly told Canela to "discuss the issue of perjury with his attorney." (Connelly: Second 440 Hg. 189). About a month later, Connelly visited Edmonds again. (Connelly: Second 440 Hg. 180). She invited Connelly in, and Connelly told her "this was about Jesus and something from his past." (Connelly: Second 440 Hg. 181). Edmonds told him that the night before on the telephone, Canela "was crying about his past coming back to haunt him" and he "didn't understand why this was coming up now." Id . Connelly "asked her if she knew what [Canela] was talking about and she said no, " and Connelly "told her that fifteen years or more ago he had testified at a homicide trial and now more recently he has filed an affidavit changing his story." Id . Edmonds "seemed surprised" and "said she didn't know anything about it." (Connelly: Second 440 Hg. 181-82). Edmonds never told him that "Mr. Canela was just trying to do the right thing" nor did she say that "she thought it was disgusting that [Connelly] was investigating him for this." (Connelly: Second 440 Hg. 250). Rather, Connelly's conversation with Edmonds was "very pleasant" and she "seemed very concerned and very attentive." Id . Edmonds dismissed Connelly's suggestions that Canela might have changed his testimony because he had been paid or threatened to do so. (Connelly: Second 440 Hg. 182). When Connelly suggested that Canela might have a connection to somebody in jail who might have been threatened or was "offered protection, " Edmonds said she did not know anything about that, but would speak with Canela and get back to Connelly. Id . However, she never got back in touch with Connelly, and that conversation was the last occasion on which the two spoke. Id . Connelly also spoke to the owner of a restaurant in Larchmont where Canela worked at the time, as well as to Canela's sister, Ellen. (Connelly: Second 440 Hg. 185). When asked if he ever spoke with Melino as part of his investigation, Connelly said, "I don't know who that is, no." (Connelly: Second 440 Hg. 192). Connelly did not speak with Tebbens either. Id . Connelly's investigation was focused on investigating Canela's "motives for testifying in this proceeding." (Connelly: Second 440 Hg. 192-93).

2. Decision on Second 440 Motion

In a written decision dated March 5, 2013, Justice Allen denied Fernandez's Second 440 Motion. See Decision and Order, dated March 5, 2013 (annexed as Ex. 52 to Tenzer Decl.) ("Second 440 Decision"). The court noted that "the main issue at the hearing was the credibility of Jesus Canela" and stated that "if his hearing testimony were to be fully credited, then [Fernandez] would be entitled to a new trial." Id . at 2. The court found that several factors counseled in favor of finding Canela's hearing testimony plausible, including the lack of any showing that he had a motive to lie at the hearing as well as his "youth and lack of sophistication" at the time of trial coupled with the fact that an officer involved in Fernandez's prosecution had been terminated for unrelated misconduct. Id . The court viewed Canela's demeanor and his failure to come forward sooner, however, as casting doubt on his credibility. Id . at 2-3. The court reasoned that while Canela had explained to some extent why he apparently lied at trial, he "could not explain why he had waited so long to come forward" and "one would expect him to notify the authorities rather than wait in silence for more than a decade." Id . at 2-3. The court reasoned further that any "lingering doubts concerning Mr. Canela's credibility at the hearing were put to rest by his trial testimony" which Justice Allen had "read and re-read countless times." Id . at 3. On this point, the court noted that Canela "not only stuck to his story [at trial] but he was also able to provide the kind of details on direct and cross that one would expect from a truthteller, " whereas "Mr. Canela was short on details at the hearing with respect to the most important part of his testimony - that regarding the claimed efforts of police officers to solicit a false identification." Id . Justice Allen noted that although Canela testified at the hearing that he was "scared" and that is why he lied at Fernandez's trial, "he did not go on to describe anything the officers said or did to instill such fear in him." Id . at 5.

Finally, the court evaluated Canela's recantation as a "newly-discovered evidence" claim." Id . at 6. The court concluded that "even without Mr. Canela's identification, the prosecution still would have a very strong case" and as a result, Fernandez had "not established a probability of a more favorable verdict based on Mr. Canela's hearing testimony." Id . at 7. The motion to vacate the judgment of conviction was therefore denied.

On May 30, 2013, the Appellate Division, First Department, denied Fernandez's application for leave to appeal the denial of his Second 440 Motion. See Certificate Denying Leave, dated May 30, 2013 (annexed as Ex. 56 to Tenzer Decl.).

H. The Instant Petition for a Writ of Habeas Corpus

Fernandez filed the original petition in this matter on October 10, 2000, and the case has been stayed for much of the period since that original filing. The governing petition is now his third amended petition for a writ of habeas corpus, which was filed on August 30, 2013.[9] The respondent filed opposition papers.[10] Fernandez filed a reply.[11]

Fernandez's petition raises two claims. First, Fernandez claims that the prosecution violated the rule of Brady v. Maryland , 373 U.S. 83 (1963), when it failed to disclose to the defense evidence of Melino's misconduct, thereby depriving Fernandez of his due process rights under the Fourteenth Amendment. See Pet. at 6. Second, Fernandez claims that the prosecution engaged in prosecutorial misconduct in violation of his due process rights under the Fourteenth Amendment by procuring and knowingly using false testimony at trial. Id . at 8.

II. APPLICABLE LAW

A. Legal Standard for Petitions Brought Pursuant to 28 U.S.C. § 2254

A petition for a writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in state court unless the adjudication of the claim

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). This statute, the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow , 134 S.Ct. 10, 16 (2013). AEDPA applies to habeas corpus applications filed after April 24, 1996, the statute's effective date. Woodford v. Garceau , 538 U.S. 202, 207 (2003); accord Brown v. Artuz , 283 F.3d 492, 498 n.2 (2d Cir. 2002) ("AEDPA's standards for reviewing state court findings and conclusions apply to any petition filed... after April 24, 1996, the AEDPA's effective date.") (citation omitted).

For a claim to be "adjudicated on the merits" within the meaning of § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect, " and it must be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman , 261 F.3d 303, 311 (2d Cir. 2001) (citations omitted). As long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds, " a claim will be considered "adjudicated on the merits" even if the state court fails to mention the federal claim and cites no relevant federal case law. Aparicio v. Artuz , 269 F.3d 78, 94 (2d Cir. 2001); accord Harrington v. Richter , 131 S.Ct. 770, 784-85 (2011) ("When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.") (citation omitted); see also id. at 784 (§ 2254(d) deference applies even "[w]here a state court's decision is unaccompanied by an explanation"). "[B]lanket statement[s]" by state courts to the effect that a criminal defendant's "remaining contentions are either unpreserved for appellate review or without merit" constitute adjudications on the merits. Howard v. Walker , 406 F.3d 114, 122 (2d Cir. 2005); Ryan v. Miller , 303 F.3d 231, 245-46 (2d Cir. 2002).

A state court's "determination of a factual issue" is "presumed to be correct, " and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); accord Miller-El v. Dretke , 545 U.S. 231, 240 (2005) (a federal court sitting in habeas is to "presume the [state court's] factual findings to be sound unless [the petitioner] rebuts the presumption of correctness by clear and convincing evidence'") (quoting 28 U.S.C. § 2254(e)(1)); Miller-El v. Cockrell , 537 U.S. 322, 324 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)."). "Where reasonable minds reviewing the record might disagree as to the relevant finding, that is not sufficient to supplant the state court's factual determination." Cardoza v. Rock , 731 F.3d 169, 178 (2d Cir. 2013) (citation, internal quotation marks, and brackets omitted). "Nevertheless, the state court's finding might represent an unreasonable determination of the facts' where, for example, reasonable minds could not disagree that the trial court misapprehended or misstated material aspects of the record in making its finding." Id . (citing Wiggins v. Smith , 539 U.S. 510, 528 (2003)). An unreasonable determination of the facts might also be found "where the court ignored highly probative and material evidence." Id . (citing Cockrell , 537 U.S. at 346).

An error that may be cognizable on direct appeal may not present grounds for relief when a case is "reviewed through the lens of § 2254(d)(1)." White v. Woodall , 134 S.Ct. 1697, 1703 (2014). A state court decision is "contrary to" clearly established federal law within the meaning of AEDPA only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor , 529 U.S. 362, 405-06 (2000). Habeas relief is available under the "unreasonable application" of AEDPA clause only "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id . at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id . at 411. Rather, the state court's application must have been unreasonable - a standard that is met only "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" Supreme Court precedent. Harrington , 131 S.Ct. at 786; accord id. ("[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable."). In other words, to demonstrate an "unreasonable" application of Supreme Court law, the habeas petitioner "must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id . at 786-87. Furthermore, "[s]ection 2254(d)(1) provides a remedy for instances in which a state court unreasonably applies [Supreme Court] precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error." White , 134 S.Ct. at 1706.

The "determination of whether a court has unreasonably applied a legal standard depends in large measure on the specificity of the standard in question." Brisco v. Ercole , 565 F.3d 80, 89 (2d Cir. 2009). "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations" inasmuch as the application of a general standard to a specific case "can demand a substantial element of judgment." Yarborough v. Alvarado , 541 U.S. 652, 664 (2004); accord Brisco , 565 F.3d at 90 (court applying a "fact-dependent standard.. to the facts of a specific case is... entitled to significant leeway' when [a habeas court] review[s] its decision for reasonableness") (quoting Yarborough , 541 U.S. at 664).

Only holdings of the Supreme Court are considered for purposes of determining "clearly established federal law." Rodriguez v. Miller , 537 F.3d 102, 106 (2d Cir. 2008) (citation omitted). Thus, "[n]o principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief." Id . at 106-07 (citation omitted). Where there is "[n]o holding" from the Supreme Court on the question presented, Carey v. Musladin , 549 U.S. 70, 77 (2006), or where Supreme Court cases "give no clear answer" to the question presented in the petition, Wright v. Van Patten , 552 U.S. 120, 126 (2008) (per curiam), a state court's decision can be neither contrary to nor an unreasonable application of clearly established federal law. See Knowles v. Mirzayance , 556 U.S. 111, 122 (2009) ("[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court.") (citations and internal quotation marks omitted).

III. DISCUSSION

A. Brady Claim

Fernandez argues that the prosecution violated his due process rights when it failed to disclose information pertaining to Melino's criminal misconduct to the defense in violation of Brady v. Maryland , 373 U.S. 83 (1963). See Pet. at 6. Specifically, Fernandez challenges the prosecution's failure to inform the defense of "information pertaining to the sale of cocaine by Melino, the lead investigating officer in Mr. Fernandez's case, " Pet. Mem. at 55, which was not disclosed until several days after the conclusion of Fernandez's trial. Fernandez argues that the "rejection by the state courts of [his] Brady claim was an unreasonable application of clearly established federal law and an unreasonable determination of the facts." Pet. Mem. at 53 (citing 28 U.S.C. § 2254(d)).

The Supreme Court held in Brady that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87; accord Smith v. Cain , 132 S.Ct. 627, 630 (2012) ("Under Brady, the State violates a defendant's right to due process if it withholds evidence that is favorable to the defense and material to the defendant's guilt or punishment."). "Favorable" evidence under Brady includes impeachment evidence. See United States v. Bagley , 473 U.S. 667, 676 (1985); Giglio v. United States , 405 U.S. 150, 154-55 (1972).

"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene , 527 U.S. 263, 281-82 (1999); accord United States v. Amiel , 95 F.3d 135, 144 (2d Cir. 1996) ("A new trial is warranted under Brady where (1) the government failed to disclose favorable evidence, and (2) the undisclosed evidence was material.") (citations omitted). Evidence is material - that is, prejudice occurs - when "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley , 473 U.S. at 682. "A reasonable probability' of a different result is... shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.'" Kyles v. Whitley , 514 U.S. 419, 434 (1995) (quoting Bagley , 473 U.S. at 678). "A reasonable probability does not mean that the defendant would more likely than not have received a different verdict with the evidence, only that the likelihood of a different result is great enough to undermine[] confidence in the outcome of the trial." Smith , 132 S.Ct. at 630 (quoting Kyles , 514 U.S. at 434) (internal quotation marks omitted) (alteration in original).

1. Timing of the Prosecution's Brady Obligation

With respect to the issue of when the prosecution's Brady obligation was "triggered" in Fernandez's case, Justice Snyder found, after conducting a hearing on the 330 Motion, that "the People's Brady obligation was not triggered until February 8, 1996, the day the People reviewed the audiotapes and concomitantly ordered the arrest of [Melino]." 330 Decision at 3. This conclusion was never explicitly addressed by the Appellate Division, which instead relied on the materiality prong of the Brady analysis. Fernandez , 249 A.D.2d at 5-7. The Appellate Division stated at the conclusion of its decision that it had "considered defendant's remaining contentions" and found them "to be without merit." Id . at 7. We begin by noting that despite the fact that the Appellate Division did not review the timing issue on appeal, the trial court did reach this issue, and thus the trial court's ruling - that the prosecution had no Brady obligation while the trial was taking place - is still subject to review by this Court subject to AEDPA deference as an adjudication on the merits in state court. See generally 28 U.S.C. § 2254(d) (deference owed to any adjudication in "State court proceedings").

Fernandez argues that the state court's conclusion as to the timing of the prosecution's Brady obligation constituted "an unreasonable application of clearly established federal law that deprived [him] of his due process rights...." Pet. Mem. at 67. He contends that "it is the prosecution's possession of information regarding Melino's criminal misconduct, and not merely the District Attorney's decision to arrest Melino, that triggers the prosecution's duty to disclose under Brady." Id . at 66 (some emphasis omitted). He further contends that "[t]o hold otherwise would permit a prosecutor to withhold Brady material from the defense simply by failing to assess it." Id . Fernandez also argues that "the trial prosecutor is charged with constructive knowledge of Melino's misconduct" even if the trial prosecutor did not possess "actual knowledge" of the misconduct. Pet. Mem. at 59. That is, the "knowledge of the District Attorney's Office is imputed to the individual prosecutor" as of January 30, 1996, "and certainly no later than February 5, 1996." Id.

Neither party suggests that information located exclusively at the IAB was subject to the Brady obligation.[12] For his part, respondent does not address - and thus apparently concedes - Fernandez's argument that Burmeister's knowledge of Melino's misconduct gave rise to the Brady obligation. Respondent argues, however, that "the trial court properly determined [that] information about Melino's criminal misconduct was preliminary or speculative prior to February 8, 1996, when Burmeister ordered Melino's arrest." Resp. Mem. at 34. Thus, respondent's argument is that Fernandez's Brady claim fails because the prosecution had "no obligation to disclose" such "preliminary or speculative" information prior to February 8, 1996. Id.

The Supreme Court has made clear that the government has no Brady obligation to "communicate preliminary, challenged, or speculative information." United States v. Agurs , 427 U.S. 97, 109 n.16 (1976) (citation omitted); accord Tate v. Wood , 963 F.2d 20, 25 (2d Cir. 1992). Fernandez argues that the state courts erred in finding that the information about Melino's misconduct fit into these categories because the information did not consist of "mere reports or oral representations from the State Troopers, " but rather, the "allegations against Melino were fully corroborated by both photographic and audiotape evidence of Melino negotiating the sale of kilograms of cocaine with an undercover officer." Pet. Mem. at 61. While there is some force to this argument, the record shows that such materials were not shown to Burmeister until February 6, 1996, the day Fernandez was convicted. See 330 Hg. at 28-29.[13] Whatever may be the merits of a claim that Burmeister should have immediately transmitted this information to Fernandez's attorney, the Court cannot find that it was unreasonable for the state court to conclude that the material remained "preliminary" or "speculative" before the conclusion of Fernandez's trial, as Burmeister certainly needed an opportunity to undertake some kind of review of the materials. We thus need not consider the question of whether the state court could have reasonably concluded that the trigger date did not occur until the date the decision to arrest was ultimately made.

While Fernandez argues that the Agurs rule was unreasonably applied by the state courts in this case, this is a situation where, due to the general nature of this rule, the state courts had "leeway" in making a determination because the application of a general standard to a specific case "can demand a substantial element of judgment." Yarborough , 541 U.S. at 664. The state courts could reasonably have concluded that the documents and other information received from IAB could properly be evaluated for a brief period of time - in this case only a day would be required to take it past the conclusion of the trial - to determine its nature. While we might have reached a different conclusion if this were a case of direct review, we cannot say that the "state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington , 131 S.Ct. at 786-87. Because reasonable jurists could disagree as to whether the prosecution's Brady obligation was triggered while the trial was still ongoing, this claim should be denied. We nonetheless recognize that this is a close question and thus address respondent's alternative argument that Fernandez has not shown prejudice from any Brady violation. See Resp. Mem. at 38-39.

2. Materiality of Evidence Pertaining to Melino's Misconduct

Fernandez contends that the Appellate Division unreasonably applied Brady's materiality standard. See Pet. Mem. at 67. He points to language in the Appellate Division's opinion which stated that "there is no reasonable probability that had the jury heard of Melino's misconduct... the jury would have rejected the identification evidence and acquitted defendant." Fernandez , 249 A.D.2d at 7. Fernandez argues that this decision contravened the Supreme Court's decision in Kyles, which stated that "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Pet. Mem. at 68. Thus, Fernandez argues the Appellate Division should have focused on "the potential impact that the undisclosed evidence might have had on the fairness of the proceedings rather than on the overall strength of the government's case." Id . (citations omitted). Fernandez further argues that the Appellate Division "failed to consider properly Melino's role in building the case against [him], " as well as the "value" of the suppressed evidence "to the defense in impeaching Melino's credibility" and "the resulting doubt that would have been placed in the jurors' minds about the good faith and thoroughness of the prosecution's investigation, the reliability of the identification testimony that was procured by Melino and which served as the cornerstone of the prosecution's case against Mr. Fernandez, and therefore the overall impact the suppressed evidence would have had on the fairness of Mr. Fernandez's trial." Pet. Mem. at 69.

Consistent with AEDPA's text, a habeas court must review the "decision" or the "result" reached in state court, and not the reasoning used by those courts. See Cruz v. Miller , 255 F.3d 77, 86 (2d Cir. 2001) (citing cases). As a result, we restrict our analysis to determining whether the Appellate Division's conclusion - that the Melino misconduct evidence was not "material" - was contrary to or an unreasonable application of federal law as determined by the Supreme Court.

Lower court cases have expounded on the "materiality" requirement of a Brady violation. Thus the Second Circuit has held that "[t]he materiality of undisclosed information which could have served to impeach a government witness is affected by the importance of the witness's testimony, as well as the importance of the disclosed information to the impeachment of the witness." United States v. Spinelli , 551 F.3d 159, 165 (2d Cir. 2008). Additionally, "[e]vidence of impeachment is material if the witness whose testimony is attacked supplied the only evidence linking the defendants to the crime, or where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." Amiel , 95 F.3d at 145 (citation and internal quotation marks omitted). "In contrast, a new trial is generally not required when the testimony of the witness is corroborated by other testimony." United States v. Payne , 63 F.3d 1200, 1210 (2d Cir. 1995) (internal quotation marks and citation omitted). Moreover, "undisclosed impeachment evidence is not material in the Brady sense when, although possibly useful to the defense, ' it is not likely to have changed the verdict.'" United States v. Persico , 645 F.3d 85, 111 (2d Cir. 2011) (quoting Giglio , 405 U.S. at 154).

Here, the state court could reasonably have concluded that even if the evidence of Melino's misconduct had been disclosed during trial, there was no reasonable probability of a different result at trial. This highly fact-based inquiry was well-summarized in the Appellate Division's decision, which bears repeating here in full:

Contrary to defendant's contention, Melino's testimony was hardly "pivotal" in securing his conviction. Melino testified regarding his investigative efforts in attempting to re-contact witnesses in the unsolved Quintero homicide, and recanvassing of the area for additional witnesses. He and another officer were successful in locating two witnesses who observed the shooting and participated in interviewing them. He further testified that he had assisted in escorting two eyewitnesses to a lineup. This type of testimony concerning police investigative work is generally not the type that, if subject to impeachment, is material to a defendant's guilt or innocence (see, People v Shakur, 169 Misc.2d, supra, at 975 [testimony of officer, accused of unrelated misconduct, regarding sexual assault victim's physical appearance and statements was mostly cumulative and peripheral to the People's case]; cf., Kyles v Whitley , 514 U.S. 419 [nondisclosure of informant's statements contributed to Brady violation since disclosure would have raised opportunities to attack the thoroughness and good faith of investigation]).
Defendant suggests that Melino's testimony was material to guilt or innocence because, given his role in interviewing witnesses and in escorting them to a lineup, he had the opportunity to improperly influence the witness's identification of defendant, a contested issue at trial. He claims that had the defense been aware of Melino's misconduct, his cross-examination strategy would have been different and the identifications substantially undermined. This theory is based entirely on supposition. Defense counsel's cross-examination of Melino and the other officers at both the suppression hearing and trial concerning the lineup revealed no irregularities, and, significantly, Melino's testimony was corroborated in nearly every respect by other officers (see, People v Martin, supra; People v Vasquez, supra). There is not one iota of evidence that the identifications were the product of coercion or suggestion, or that Melino harbored some secret motive to influence four witnesses to falsely implicate the defendant. Absent some other indication that the identifications were unreliable, the hypothetical and remote possibility that they were influenced by a corrupt officer is too slender a reed upon which to grant a new trial.
Moreover, Melino's criminal background must be examined in light of the considerable evidence offered by the prosecution at trial. Four eyewitnesses identified defendant as the shooter at trial, and all gave mostly consistent descriptions to the police including the unique characteristic that the shooter had a "grayish" ponytail. Two members of the drug gang Yellow Top Crew, which was affiliated with Marte's Red Top Crew, testified pursuant to cooperation agreements, regarding Marte's plan to kill the deceased and defendant's subsequent boasting as to having shot the deceased. Convincing the jury that all four identifications were the product of Melino's improper influence, and that the remaining testimony implicating defendant in the murder was somehow unworthy of belief, would have been a daunting task for defense counsel, if not an impossible one.

Fernandez , 249 A.D.2d at 5-7

We cannot find that the Appellate Division unreasonably applied Brady and its progeny in concluding that the Brady materiality standard had not been met. As was referenced by the Appellate Division, the evidence presented at trial consisted of eyewitness identification testimony from George, Hickliff, Canela, and Medina. Even more significantly, Mejias and Rivera provided detailed and consistent testimony that Fernandez had been hired to do the shooting and that he ultimately bragged about committing the offense. Specifically, Mejias testified that Marte told Mejias that he hired Fernandez to murder Quintero, and he testified to being present when Marte handed Fernandez cash in the weeks following the shooting. See Tr. 801-02, 809, 1060. Rivera testified to being present when Fernandez displayed what he said was the spent shell of the bullet that killed Quintero and boasted about killing Quintero. See Tr.1063. The jury thus heard testimony about Fernandez's motive to kill Quintero and testimony that Fernandez implicated himself in the shooting, along with testimony from three individuals who saw Fernandez commit the shooting. Melino, by contrast, testified only to seeking out witnesses and securing identifications whose propriety was established after a Wade hearing prior to trial.

Fernandez makes arguments about the various ways in which jurors might question testimony based simply on the fact that Melino had "interacted" with certain witnesses prior to trial or because Melino had a role in locating witnesses. Pet. Mem. at 63, 64-65. These arguments - consisting of claims that counsel might have used the impeachment evidence to elicit from Melino that he lied about the circumstances of the prosecution witness's identifications, Pet. Reply at 14 - rely on highly unlikely inferences.[14] The fact that prosecution witnesses' later recanted testimony focused on Melino as the prime mover behind their alleged trial perjury did not make these inferences any more likely at the time of the Appellate Division's decision. Thus, the Appellate Division did not unreasonably apply Brady in rejecting Fernandez's claim. In other words, the Appellate Division was not unreasonable in deciding that the likelihood of acquittal with the usage of the impeachment material was not "great enough to undermine[] confidence in the outcome of the trial." Smith , 132 S.Ct. at 630.

B. Prosecutorial Misconduct

Fernandez brings a prosecutorial misconduct claim on the basis that "[p]erjured testimony was offered at [his] trial. Pet. Mem. at 72. "[A] conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Agurs , 427 U.S. at 103. In interpreting this requirement, the Second Circuit has held that "[i]n order to be granted a new trial on the ground that a witness committed perjury, the defendant must show that (I) the witness actually committed perjury; (ii) the alleged perjury was material; (iii) the government knew or should have known of the perjury at [the] time of trial; and (iv) the perjured testimony remained undisclosed during trial." United States v. Cromitie , 727 F.3d 194, 221 (2d Cir. 2013) (citation omitted) (alteration in original). In two post-trial hearings, Justice Allen rejected Fernandez's argument that the witnesses's trial testimony was perjured based largely on his finding that their recantation testimony was not credible. Thus, we begin by addressing the credibility findings made by the state court with respect to the recantation testimony of Hickliff and Canela.

As stated above, under 28 U.S.C. § 2254(d)(2), habeas relief is available upon a showing that the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." AEDPA also provides that "a determination of a factual issue made by a State court shall be presumed to be correct" and this presumption can be overcome only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The Supreme Court has stated that it has not resolved the question of "the relationship" between §§ 2254(d)(2) and (e)(1). Burt , 134 S.Ct. at 15. The Second Circuit has held, however, that the "presumption of correctness" mandated by § 2254(e)(1) "is particularly important when reviewing the trial court's assessment of witness credibility." Shabazz v. Artuz , 336 F.3d 154, 161 (2d Cir. 2003) (citations omitted); accord Cotto v. Herbert , 331 F.3d 217, 233 (2d Cir. 2003) ("Under 28 U.S.C. § 2254(e)(1), the fact-findings of the trial court are subject to a presumption of correctness, ' a presumption that is particularly important when reviewing the trial court's assessment of witness credibility.") (citation omitted); Pizarro v. Conway, 2010 WL 5373899, at *5 (S.D.N.Y. Nov. 1, 2010) ("A credibility determination is the type of factual finding to which this Court must generally defer.")

While "the term unreasonable' is no doubt difficult to define... [i]t suffices to say... that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen , 558 U.S. 290, 301 (2010) (internal citations, quotation marks, and alterations omitted). Of course, "[a] federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence." Cockrell , 537 U.S. at 340. But, as the Supreme Court stated in Wood, if "[r]easonable minds reviewing the record might disagree about the finding in question, "on habeas review that does not suffice to supersede the trial court's... determination." 558 U.S. at 301 (citation and internal quotation marks omitted). As the Second Circuit has noted, federal habeas review of state court factual findings is of "extremely narrow scope." Cotto , 331 F.3d at 233.

We discuss next whether Fernandez has met his burden in attacking the state court's factual findings at the section 440 hearings.

1. Hickliff Rosario

Justice Allen found as follows with respect to Hickliff:

The defendant bases his police misconduct claim on the hearing testimony of Hickliff Rosario. Mr. Rosario testified that police officers manipulated him into making a knowingly false identification of the defendant from the photo array. I did not find Mr. Rosario to be a credible witness. While he testified that the defendant was not the shooter and described the identification process, he avoided virtually every other question that was put to him, claiming a lack of memory even as to recent events. I also found credible Detective Connelly's account that Mr.
Rosario had made statements several months earlier that contradicted his testimony at the hearing

First 440 Decision at 2.

Fernandez contends that a review of Hickliff's trial testimony indicates that he "had previously shown an inability to understand and answer questions in a courtroom setting, " so it was unreasonable for Justice Allen to conclude that his inability to answer questions at the First 440 Hearing was "due to a lack of credibility, rather than a lack of understanding." Pet. Mem. at 85-86. Fernandez cites portions of the trial transcript in which Justice Snyder stated that it was "[v]ery easy to confuse" Hickliff and that he "must have a very low IQ" or not understand English very well because he "certainly doesn't understand some very basic things" and "is not very bright." Id . at 86. He also cites to a portion of the prosecution's closing statement in which Hickliff is described as "[o]bviously uneducated" and "[n]ot very bright." Id . at 87. Fernandez argues that it was "unreasonable for the state court not to consider these prior examples and descriptions of Hickliff's testimony when evaluating his hearing testimony" and that it was "also unreasonable for the state court to interpret Hickliff's inability to recall information as a lack of credibility, rather than a consistent handicap in understanding and responding to questions in a courtroom setting." Id.

We do not believe this constitutes "clear and convincing evidence" that Justice Allen's credibility determination was incorrect or that it shows his determination to have been "unreasonable." Instead, Fernandez's assessment of Hickliff's intelligence amounts to one possible explanation as to why Hickliff did not answer the many questions posed to him regarding the circumstances of his recantation at the First 440 hearing. But it is not the only possible explanation, and a lack of credibility is certainly one of them. Moreover, a review of Hickliff's trial testimony indicates that he was capable of answering questions at length and in great detail, and that it was only on a few occasions that he was not able to follow questions asked of him.[15] Thus there is no reason why Justice Allen, who heard Hickliff's testimony, could not have concluded that his assertions of memory loss were caused by his evasiveness rather than lack of intelligence. Notably, Justice Snyder's comments regarding Hickliff's answering of questions related not to his inability to recall events but rather to his inability to understand questions. Justice Allen, by contrast, was faced with testimony in which Hickliff's purported to not recall significant details relating to the trial and his identification of Fernandez in response to simple questions. For example, Hickliff did not remember whether he identified anyone at the lineup conducted in July 1995, see First 440 Hg. at 178-79, but he did remember a police officer placing a finger over photograph number "four" in the photo array shown to him prior to the lineup, see id. at 139. He also stated he could not recall most of the details concerning his interactions with the private investigator, including how the meeting was arranged, who told him he was meeting this person to talk about Fernandez's case, or how he came to learn that the person was a private investigator. See First 440 Hg. at 180-82. Justice Allen was entitled to view his answers to these questions as purposeful evasiveness rather than arising from a lack of intelligence.

Justice Allen was also entitled to credit Detective Connelly's account of his interactions with Hickliff, which reflected that Hickliff had been coerced by Fernandez's investigator and that in fact he had correctly picked the shooter out of the lineup and identified him in court. See First 440 Hg. at 257-58.

We similarly reject Fernandez's argument that Justice Allen's assessment of Hickliff's credibility was questionable because "at the hearing, the prosecution was unable to present a motive for Hickliff to lie." Pet. Mem. at 86. It is not unreasonable for a factfinder to reject testimony as incredible even where there is no apparent motive to testify falsely.

We thus cannot conclude that Justice Allen's assessment of Hickliff's credibility "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented" at the First 440 Hearing, 28 U.S.C. § 2254(d)(2), or that Fernandez has demonstrated the incorrectness of Justice Allen's credibility determination "by clear and convincing evidence, " id. § 2254(e)(1).

2. Jesus Canela

At the Second 440 Hearing, Canela testified along with Canela's wife, a defense investigator, and police witnesses. Justice Allen's findings as to Canela are as follows:

At first blush Mr. Canela's hearing testimony seemed somewhat plausible. A troubled teenager at the time of the trial, he has become a responsible adult who has lived stable normal life for some time. Nor was there any showing at the hearing that he had a motive to lie. Moreover, his primary assertion at the hearing - that he had been pressured and assisted by corrupt police officers into giving false testimony at trial - could not be rejected summarily, given his youth and lack of sophistication at the time coupled with the fact that one of the officers was terminated for unrelated misconduct.
Mr. Canela's demeanor at the hearing, however, left much room for doubt. He came across as someone who was trying too hard to be convincing. (His wife's testimony in support suffered the same failing.) And while Mr. Canela had an explanation, of sorts, as to why he had lied at the trial, he could not explain why he had waited so long to come forward. He claimed that he had felt terrible about the situation for years but still could not come clean. But then when Mr. Melnick finally showed up at his door, he immediately admitted his perjury and cooperated without reservation. This simply does not make sense. If Mr. Canela had truly turned his life around, and knew that his false testimony was keeping another man in jail, one would expect him to notify the authorities rather than wait in silence for more than a decade. Mr. Canela's credibility at the hearing also was suspect because, like anyone who recants, we now know that he has lied under oath on at least one occasion.
Any lingering doubts concerning Mr. Canela's credibility at the hearing were put to rest by his trial testimony which I have read and re-read countless times. As I said, I can accept the possibility that in the heyday of the crack epidemic in the 90s, a young person might have been coached and even coerced by overzealous police officers. But I find it very hard to believe that such a compromised witness would be able to withstand the cross-examination of a highly skilled defense attorney. Even though Mr. Canela was an unsophisticated teenager at the defendant's trial, he not only stuck to his story, but he was also able to provide the kind of details on direct and cross that one would expect from a truthteller.
In contrast, Mr. Canela was short on details at the hearing with respect to the most important part of his testimony - that regarding the claimed efforts of police officers to solicit a false identification. He testified that two detectives, whose names he could not recall, took him to an office somewhere. There they and other officers showed him mug shots, none of which he recognized. In Mr. Canela's words:
"Well, they were showing me pictures of the people they were showing me, but they were emphasizing one picture, and that picture was shown to me over and over and over again. And I felt, in a sense, I mean, I felt like if there was some sort of pressure being applied towards me, when it came to that same picture, and there came a point where it was asked so many times where I said you know what, if that's the person then that's the person. You know, I pretty much gave into saying it's obvious that you want me to point this person out, so I pointed this person out."

He also claimed that the same detectives spoke to him at the District Attorney's office just before he testified at trial. When asked to relate the details of that conversation, he stated:

"Okay. Well when I was speaking to the detectives, they would tell me pretty much to remember things that we went through, that we went over before we were going to the court to see the judge. And they also, they asked me not to say - I don't remember exactly the things, all the things that were said, but I do remember that they told me where the person was going to be seated in the courtroom, and I remember that they explained to me where the jury were going to be seated, and that's what I remember."

At the trial, Mr. Canela testified unequivocally that he had not been shown any mug shots by the police, that no one had told him where the defendant would be sitting, and that no one had been taking notes when he was interviewed by the Assistant District Attorney. At the hearing, he was asked why he had lied about those things at trial. His answer was as follows:

"All right. I testified untruthfully at trial because when I met with the detectives, they told me I don't have to say anything that speak with them, like anything that talk about with them doesn't have to be said in court. And I, I was, I was trying to just get over it. I was trying to get the whole thing over with. I knew was already lying to begin with so I just wanted to get it over with."

He was then asked if his identification of the defendant at trial had been true. He said it had not:

Q. Why did you do that? Why did you testify untruthfully in that case?
A. I was afraid. I didn't know what to do anymore. I did not know how to go about anything. It was my first time in court. I had never seen anything. I had never been in court before.
Q. Did the detectives who interviewed you tell you that Pablo
Fernandez was the guy who did it?
A. They, on occasions they did mention, they said, well, you know we have the guy, this is the guy.
Q. Is that why you identified him?
A. I believe that that actually helped me believe that he was the guy.

The defense also contends that this testimony by Mr. Canela established that the police officers committed fraud by inducing Mr. Canela to commit perjury, including falsely identifying the defendant at trial. Again, this passage lacked the ring of truth. Among other things, it suggested that the Assistant District Attorney, too, would have been complicit in the fraud, since she informed the trial court that there were no notes taken during her interview with Mr. Canela. It is understandable that Mr. Canela might not have complete recall of the details of events that occurred 15 years ago. However, in evaluating the import and credibility of his hearing testimony, I am not going to infer acts of misconduct as to which he did not testify directly. For example, Mr. Canela did not testify at the hearing that he ever told the officers that he did not think the defendant was the shooter. His testimony was that the officers showed him a photograph three or four times and then he told them that it was the guy. If credited his testimony might establish undue suggestiveness in several respects. But it does not establish that anyone knowingly induced him to make a false identification.

If Mr. Canela had been lying at the trial, he had to have been well coached. His testimony at the hearing that the officers "told me I don't have to say anything that I speak with them, like anything that I talk about with them doesn't have to be said in court" would not explain how he knew enough to lie about such things as Rosario material or to describe the shooter's hair (which he now says he did not see) consistently with other witnesses. He testified at the hearing regarding his trial testimony that "I was very afraid at that point. I was scared. I had never been in so much pressure." But he did not go on to describe anything the officers said or did to instill such fear in him. Given Mr. Canela's lack of credibility at the hearing with respect to his interactions with the officers, I find that the defendant has not established those claims based on fraud and improper conduct.

Second 440 Decision at 2-6. Fernandez argues that "the state court's determination regarding the credibility of Jesus Canela was unreasonable, " Pet. Mem. at 76, asserting that Justice Allen "engaged in a flawed analysis in several regards, " id. at 77.

First, Fernandez contends that Justice Allen incorrectly found inconsistencies in Canela's testimony regarding whether or not Canela believed Fernandez was the shooter, and that Justice Allen therefore unreasonably found Canela's testimony on this point unreliable. Id . This argument refers to a passage in Justice Allen's opinion relating to a newly-discovered evidence claim - not quoted above - in which Justice Allen stated as follows:

[S]ince I do not find credible his testimony that he knew affirmatively that the defendant was not the shooter, it follows that I do not believe that he would be able to so testify convincingly at a trial. His testimony at the hearing that he knew that the defendant was not the shooter was inconsistent with his later testimony that "I believe that that actually helped me believe that he was the guy."

Second 440 Decision at 6. Fernandez's argument that the testimony highlighted by Justice Allen is not in fact inconsistent relies on Fernandez's inferences regarding the meaning of Canela's testimony that the officer "actually helped me believe" that Fernandez was the shooter. While Fernandez's inferences as to the meaning of this testimony might be reasonable, it would also have been reasonable for Justice Allen to accept Canela's words at face value and to construe them as making reference to Canela's actual state of belief at the time of the trial. Moreover, even if he accepted that there was some inconsistency, this statement by Justice Allen hardly provided the foundation for Justice Allen's conclusion on Canela's credibility at the hearing. On the contrary, Justice Allen found Canela's testimony at the Second 440 Hearing incredible based upon, inter alia, Canela's demeanor at the hearing, his failure to come forward for so many years, and the lack of detail in his hearing testimony when compared with his trial testimony. See Second 440 Decision at 2-4.

Fernandez next argues the "state court improperly questioned the credibility of Canela's hearing testimony that he was coerced by investigators to identify Mr. Fernandez on the grounds that his hearing testimony was insufficiently detailed." Pet. Mem. at 80. Justice Allen found that the level of detail provided in Canela's trial testimony - especially on cross-examination - indicated that his testimony was truthful, contrasting it with the hearing testimony that he deemed to be "short on details... with respect to the most important part of his testimony - that regarding the claimed efforts of police officers to solicit a false identification." Second 440 Decision at 3. As Justice Allen noted, Canela's testimony at the hearing contradicted his trial testimony regarding whether he had been shown any mug shots prior to trial and whether he had been told where Fernandez would be seated in the courtroom. Id . at 3-4. Importantly, Justice Allen noted that Canela testified at the hearing that he lied at trial because he was "afraid" and "scared, " but he "did not go on to describe anything the officers said or did to instill such fear in him." Id . at 5. Justice Allen also rejected the notion that Canela was induced to commit perjury at trial on the ground that this would have required an unsupported inference of complicity by the Assistant District Attorney. Id . It was not unreasonable for Justice Allen to conclude that Canela's hearing testimony as to the alleged police coercion simply lacked the ring of truth when compared with his trial testimony.

Fernandez gives several reasons why he contends that the state court gave "undue credit" to Canela's trial testimony. Pet Mem. at 81. Fernandez objects to Justice Allen having found that during the trial, Canela was "able to withstand the cross-examination of a highly-skilled defense attorney" on the ground that Fernandez's defense attorney "was repeatedly suspended from the practice of law" and "asked the same questions over and over again [at trial], raising the objections not only of the prosecution, but even of the trial court." Id . This argument does nothing to undermine Justice Allen's credibility determination inasmuch as it provides no explanation of how defense counsel's cross-examination was ineffectual as a whole. This Court's own review of the transcript, Tr. 350-408, reflects that counsel's cross-examination, notwithstanding some occasional repetitiveness, made numerous attacks on Canela's recollection, and notably included an effort to suggest that Canela's courtroom identification of Fernandez resulted only because of Fernandez's placement in the courtroom, id. at 385-86. Thus, we cannot fault Justice Allen for considering this factor in evaluating Canela's credibility, as the trial transcript indeed demonstrates that Canela's testimony was subjected to the rigors of crossexamination.

We also reject Fernandez's argument that the state court "overlooked the questionable circumstances" of Canela's trial testimony and the companion argument that Canela had a motive to lie at trial but no motive to lie at the Second 440 Hearing. Pet. Mem. at 82-83. These alleged "questionable circumstances" consist merely of the presupposition that Canela's trial testimony was unreliable. Inasmuch as Justice Allen explicitly considered the substance of Canela's trial testimony and "read and re-read [it] countless times, " Second 440 Decision at 3, Justice Allen was obviously aware that Canela testified to having "seen the shooter for only a matter of seconds more than two years earlier" and that he also testified to not having been "shown... a photograph of [Fernandez] prior to trial, " Pet. Mem. at 82. He was also obviously aware, as Fernandez points out, see id., that Canela testified to being friends with Quintero and the effect that this friendship would have on his motive to testify truthfully or not at trial. Thus, Fernandez's contention that Justice Allen failed to consider Canela's motives at the trial and the Second 440 Hearing is misplaced. The same is true for Fernandez's argument that Justice Allen failed to consider the possibility that Canela was coached to testify the way he did at trial. See Pet. Mem. at 83. Justice Allen explicitly considered the possibility of coaching and dismissed it after finding that Canela "did not go on [at the Second 440 Hearing] to describe anything the officers said or did to instill such fear in him." Second 440 Decision at 5.

Fernandez contends that Canela "made two prior consistent statements that firmly bolster the reliability of his recantation testimony." Pet. Mem. at 84. One statement occurred when Canela told his wife that he "didn't tell the truth at the time of [Fernandez's] case" and that he "felt that he was coerced into making an ID." Id . The other statement occurred when Canela told Melnick about the misdeeds of investigators and Canela's eventual capitulation and false identification of Fernandez. Id . While a reasonable factfinder might have chosen to give these statements great weight, and to use them to credit Canela's testimony, we cannot say that it was unreasonable for Justice Allen to find they were insufficient to allow him to find Canela's recantation testimony to be credible or his trial testimony to be false. For example, one plausible explanation for Canela's statements to his wife and to Melnick is that Canela had long experienced strong emotions over having helped send another man to jail for life, and that these feelings had caused Canela to convince himself that he must have been incorrect in his original identification.

Finally, Fernandez argues that "the state court improperly questioned Canela's credibility based on his failure to come forward and recant his false identification of Mr. Fernandez sooner." Id . We do not doubt that a trier of fact might reasonably have accepted as consistent with human nature Canela's alleged decision not to reveal his prior perjury until confronted by a defense investigator. But we cannot say that a reasonable factfinder had to draw that inference and could not instead draw the inference that Justice Allen drew.

In sum, as with Justice Allen's assessment of Hickliff's credibility at the First 440 Hearing, we cannot conclude that his assessment of Canela's credibility "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented" at the Second 440 Hearing, 28 U.S.C. § 2254(d)(2), or that Fernandez has shown "by clear and convincing evidence, " id. § 2254(e)(1), that Justice Allen's credibility determination was incorrect.

3. Other Evidence of Falsity of Trial Testimony

As Fernandez correctly notes, see Pet. Mem. at 87-88, the issue in a claim of perjured testimony is not simply whether the recantations of Canela and Hickliff were credible but rather whether these witness's trial testimony was perjured. See Ortega v. Duncan , 333 F.3d 102, 107 (2d Cir. 2003). That is, a court must "weigh all the evidence of perjury before it, including but not limited to the recantation, before reaching" the conclusion that a recanting witness's trial testimony was not perjured. Id.

Fernandez asks us to "weigh the considerable evidence that both of the Rosarios and Canela testified falsely at Mr. Fernandez's trial" even if we "accept[] the state court's finding regarding the credibility of the Rosarios' and Canela's hearing testimony." Pet. Mem. at 88. He argues that a "proper consideration of all the evidence supports the conclusion that [their] trial identifications... were false, and that they testified falsely as a result of undue influence from investigators." Id . at 91.

Fernandez points out that the three eyewitnesses "came to testify at Mr. Fernandez's trial as a result of initial contact with Melino" and that "Melino has shown his willingness to engage in deception and misconduct to further his own goals." Id . at 89. But in the absence of credible hearing testimony from Canela and Hickliff on this point, the argument rests essentially on speculation. Fernandez also points out that Justice Allen never explicitly found Henry Gomez's testimony at the First 440 Hearing to be incredible and that his hearing testimony supports the argument that the Rosarios and Canela testified falsely at Fernandez's trial. Id . at 90. This argument too is rejected on the ground that Gomez's testimony was far too weak, for the reasons pointed out by Justice Allen, to allow us to conclude that the state court unreasonably determined that the Rosarios or Canela did not testify falsely at Fernandez's trial. See First 440 Decision at 2-3. We also reject the argument that because Canela's recantation testimony "now corroborates the Rosarios' prior recantations, " this proves the untruthfulness of their trial testimony. Pet. Mem. at 90. As Justice Allen explicitly found, "Canela's testimony that [Fernandez] was not the shooter is not strengthened by the testimony of [Hickliff] Rosario and Henry Gomez." Second 440 Decision at 6. Fernandez fails to show that this conclusion was unreasonable in light of the evidence presented. Finally, nothing in the trial transcript itself - such as the age of the eyewitnesses, the time gap between the shooting and the identifications, the eyewitness's descriptions of Fernandez, or the testimony of the two cooperating witnesses, see Pet. Mem. at 90-91 - suggests to us that the state court unreasonably determined that the Rosarios and Canela did not offer false testimony at Fernandez's trial. Notably, the testimony from the cooperating witnesses - particularly Rivera - strongly implicated Fernandez in the shooting and thus supports the conclusion that the Rosarios and Canela did not commit perjury at trial.

A federal court does not have the authority to grant a writ of habeas corpus simply on the ground that it believes that a witness's testimony at trial was false. Instead, the Court is obligated to operate within the strictures of 28 U.S.C §§ 2254(d)(2) and (e)(1) to decide whether the state courts unreasonably concluded that perjured testimony was not offered at trial. In light of Justice Allen's reasonable conclusion that Canela and Hickliff's recantations were incredible, and in light of the fact that these witness's trial testimony was supported by other evidence in the case, we cannot find that Fernandez has shown that the state court unreasonably determined that the trial testimony of the Rosarios and Hickliff was not perjured. Thus, Fernandez's claim for habeas relief on this ground fails as well.

IV. CONCLUSION

For the foregoing reasons, the petition for a writ of habeas corpus should be denied.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days including weekends and holidays from service of this Report and Recommendation to serve and file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with a copy sent to the Hon. Kimba Wood at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Wood. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn , 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C. , 596 F.3d 84, 92 (2d Cir. 2010).


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