14‐193‐pr Lewis v. Connecticut Commissioner of Correction

In the United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2014

ARGUED: OCTOBER 22, 2014 DECIDED: MAY 14, 2015 AMENDED: JUNE 22, 2015

No. 14‐193‐pr

SCOTT LEWIS, Petitioner‐Appellee,

v.

CONNECTICUT COMMISSIONER OF CORRECTION, Respondent‐Appellant. ________

Appeal from the United States District Court for the District of Connecticut. No. 3 Civ. 196 – Charles S. Haight, Jr., Judge. ________

Before: WINTER, WALKER, and CABRANES, Circuit Judges. ________

In 1990, a jury convicted Petitioner Scott Lewis of murdering

Ricardo Turner and Lamont Fields. The government’s case against 2 No. 14‐193‐pr

Lewis depended almost entirely on the testimony of its key

witness―Ovil Ruiz. At the time of Lewis’s trial, however, the State

failed to disclose to the defense that Ruiz had repeatedly denied

having any knowledge of the murders and only implicated Lewis

after a police detective promised to let Ruiz go if he gave a statement

in which he admitted to being the getaway driver and incriminated

Lewis and another individual, Stefon Morant. Lewis now seeks

habeas relief on the grounds that the State of Connecticut denied his

constitutional right to a fair trial when it withheld exculpatory

evidence in violation of Brady v. Maryland,

(1963). The

United States District Court for the District of Connecticut (Charles

S. Haight, Jr., Judge) granted Lewis’s habeas petition on the basis of

the Brady violation. We agree with the district court and AFFIRM the

grant of habeas corpus.

________

BRETT DIGNAM (Elora Mukherjee, on the brief), Morningside Heights Legal Services, Inc., New York, N.Y., for Petitioner‐Appellee.

MICHAEL PROTO, Office of the Chief State’s Attorney, Rocky Hill, C.T., for Respondent‐ Appellant. 3 No. 14‐193‐pr

________

JOHN M. WALKER, JR., Circuit Judge:

In 1990, a jury convicted Petitioner Scott Lewis of murdering

Ricardo Turner and Lamont Fields. The government’s case against

Lewis depended almost entirely on the testimony of its key

witness―Ovil Ruiz. At the time of Lewis’s trial, however, the State

failed to disclose to the defense that Ruiz had repeatedly denied

having any knowledge of the murders and only implicated Lewis

after a police detective promised to let Ruiz go if he gave a statement

in which he admitted to being the getaway driver and incriminated

Lewis and another individual, Stefon Morant. Lewis now seeks

habeas relief on the grounds that the State of Connecticut denied his

constitutional right to a fair trial when it withheld exculpatory

evidence in violation of Brady v. Maryland,

(1963). The

United States District Court for the District of Connecticut (Charles

S. Haight, Jr., Judge) granted Lewis’s habeas petition on the basis of

the Brady violation. We agree with the district court and AFFIRM the

grant of habeas corpus. 4 No. 14‐193‐pr

BACKGROUND

On October 11, 1990, Ricardo Turner and Lamont Fields were

shot and killed in their apartment at 634 Howard Avenue in New

Haven, Connecticut. The State charged Scott Lewis and Stefon

Morant with the murders and tried them separately in Connecticut

Superior Court. Morant was tried first and convicted of both

murders.

I. Lewis’s Trial

At trial, the State did not introduce any eyewitness testimony

or forensic evidence against Lewis. The government’s key witness,

Ovil Ruiz, was the only witness who directly implicated Lewis in the

murders. Ruiz testified at trial, in substance, as follows. On the

night of the murders, Ruiz drove Lewis and Morant to 634 Howard

Avenue and waited in the car while they went inside. While he was

waiting, he heard gunshots. Lewis and Morant then returned to the

car with gym bags containing drugs and cash. Ruiz later overheard a

conversation in which Lewis admitted to shooting Turner and 5 No. 14‐193‐pr

Fields. And two to three weeks after the murder, Ruiz saw Lewis

throw a gun into the river near the Chapel Street Bridge.

On May 10, 1995, the jury convicted Lewis on two counts of

murder and two counts of felony murder, one as to each victim. The

Superior Court sentenced Lewis principally to 120 years’

imprisonment. On direct appeal, the Supreme Court of Connecticut

affirmed Lewis’s convictions for the murders but vacated his felony

murder convictions on double jeopardy grounds. See State v. Lewis,

(1998).

II. Subsequent Testimony

On October 25 and 26, 1999, Michael J. Sweeney, a 37‐year

veteran of the New Haven Police Department (“NHPD”)—and one

of two police detectives who questioned Ruiz on the night he first

implicated Lewis―provided critical information concerning the

circumstances in which Ruiz inculpated Lewis at the police station

on January 13‐14, 1991. At the hearing on Morant’s motion for a new 6 No. 14‐193‐pr

trial before the Honorable Judge Jon C. Blue of the Connecticut

Superior Court,1 Sweeney testified as follows.

Detective Vincent Raucci arrested Ruiz in connection with

another murder on January 13, 1991 and brought him to the New

Haven police station. Sweeney, Raucci’s supervising officer, first

questioned Ruiz about the Fields‐Turner murders. Ruiz said he did

not know anything about them. Then, Sweeney and Raucci jointly

interviewed Ruiz, who repeated that he had no information about

these murders and was not at the murder scene.

Raucci then began telling Ruiz the facts of the Fields‐Turner

case. Raucci described where the murders occurred, the apartment

building, and a scenario in which the murderers escaped with guns

in a gym bag. At that point, Sweeney asked Raucci to step outside

and told him that his interrogation approach was inappropriate.

When the detectives returned to the interrogation, Raucci told Ruiz

1 In this separate proceeding, Judge Blue denied Morant’s motion for a new trial based on his conclusion that there was extensive independent evidence implicating Morant in the murders. See Morant v. State, No. 398736,

(Conn. Super. Ct. June 5, 2000), affʹd,

(2002). This decision regarding Morant is not before us. Relevant here, however, Judge Blue determined at that hearing that Sweeney was a credible witness, and that the testimony recounted below should be credited. 7 No. 14‐193‐pr

that “he would let him go,” and that he wanted him to say “that he

was driving the car that night.” S.A. 443. Raucci also warned Ruiz

“that it was in his best interest to tell what happened [and] give a

detailed statement as to his participation and also the other two.”

S.A. 443. At that point, Ruiz started changing his statement.

Sweeney again took Raucci outside and told him to “knock it

off.” S.A. 444. Specifically, Sweeney told Raucci “don’t tell [Ruiz]

parts of the case and then five minutes later let him parrot what

you’re saying and take it as fact.” S.A. 444. When Judge Blue asked

Sweeney to clarify what information Raucci gave Ruiz, Sweeney

said, among other things, that Raucci told Ruiz “that he was present

with the two individuals, Scott Lewis and Stefon Morant.” S.A. 460.

On cross‐examination, Sweeney acknowledged that police officers

frequently divulge certain facts in order to extract additional

information from a potential suspect, but explained that Raucci was

“detailing the whole case” to Ruiz, S.A. 414, rather than telling him

“a little to get a lot,” S.A. 337. 8 No. 14‐193‐pr

Sweeney was then pulled away on another matter, so Raucci

interviewed Ruiz alone. When Sweeney returned, Raucci told him

that Ruiz wanted to give a detailed statement about his involvement

in the murders. Concerned by the significant change in Ruiz’s story,

Sweeney spoke to Ruiz alone and asked him if he was “truthful in

stating that these two persons were there and [he] drove the car.”

S.A. 446. Ruiz said “no . . . . [h]e was not telling the truth,” he

“knew nothing,” and “the information he did give . . . . was all

information gathered from Detective Raucci.”

Significantly, Ruiz

told Sweeney that he changed his story “because Detective Raucci

said he was gonna let him go.”

Sweeney, again, confronted Raucci. At Raucci’s request,

Sweeney gave Raucci one final opportunity to interview Ruiz alone.

After that interview, Raucci told Sweeney that Ruiz wanted to say

that he “overheard these two people talking about the case, that he

wasn’t present.” S.A. 446. At that late point in the evening, Sweeney

thought that “might be true,” so he told Raucci to take the statement. 9 No. 14‐193‐pr

S.A. 446‐47. Shortly thereafter, Sweeney’s shift ended, and he did

not see Ruiz again.

In 1998, Sweeney retired from the NHPD and volunteered to

serve as a U.N. station commander, supervising police officers in

post‐war Bosnia. When he returned to the United States, he read in

a local newspaper that Raucci had resigned from the NHPD because

of misconduct. Specifically, Raucci was linked to the New Haven

drug trade; charged with larceny following an internal NHPD

investigation; arrested for a domestic‐violence incident; and, after

fleeing Connecticut as a result of the charges against him, was

ultimately arrested by the Federal Bureau of Investigation (“FBI”)

after a four‐hour standoff in New Mexico. Sweeney later testified

during an evidentiary hearing on Lewis’s federal habeas petition

that he came forward because he felt Ruiz was “absolutely

untruthful,” A. 39, and that the story implicating Lewis and Morant

was “fabricated,” S.A. 37.2 At Lewis’s trial in 1990, the prosecution

We also note that Sweeney’s testimony corroborates evidence obtained by 2

the FBI during an investigation of Raucci’s conduct. That evidence, which we do not take into consideration in deciding Lewis’s habeas petition, includes a letter Ruiz wrote to the FBI on August 24, 1999 in which he wrote that he “set up” 10 No. 14‐193‐pr

failed to disclose to the defense any of the circumstances of Ruiz’s

police interrogation to which Sweeney testified.

III. The State Habeas Proceedings

On January 9, 2001, Lewis filed a pro se habeas petition in

Connecticut Superior Court. He raised three claims: (1) newly

discovered evidence that Ruiz perjured himself; (2) a Brady violation

based on the State’s failure to disclose evidence of Ruiz’s prior

inconsistent statements and Raucci’s coaching of Ruiz’s testimony;

and (3) newly discovered evidence of alibi testimony. In support of

his petition, Lewis included transcripts of Sweeney’s testimony at

the Morant hearing.

The Connecticut Superior Court (Howard Zoarski, Judge)

(hereinafter, the “state habeas court”) denied Lewis’s petition. With

respect to Lewis’s Brady claim, the state habeas court concluded that

“not only was all exculpatory evidence furnished to the defense, but

also the alleged evidence was available by due diligence to the

defense.” Lewis v. Warden, No. CV‐99‐0424021‐S,

,

Lewis for a murder he did not commit at the instigation of a “corrupted cop.” S.A. 74. 11 No. 14‐193‐pr

at *3 (Conn. Super. Ct. Sept. 19, 2001). The state habeas court

determined that Raucci only provided Ruiz with “insignificant

facts”―such as the location of the apartment on Howard Avenue,

the color of the buildings, and the make of Lewis’s car―and that

“the information provided by Detective Raucci . . . did not disclose

the names of the petitioner or Morant.” Id. at *2. Notably, the state

habeas decision omitted any reference to Sweeney’s testimony that

Ruiz initially denied having any knowledge of the murders, that he

was parroting what Raucci told him, and, critically, that after he

changed his story to inculpate Lewis, Ruiz told Sweeney that he did

so because “Raucci said he was gonna let him go.” S.A. 446.

Pursuant to Section 52‐470(g) of the Connecticut General

Statutes, Lewis, acting pro se, petitioned a justice on the Connecticut

Supreme Court for certification to appeal to the Connecticut

Appellate Court.3 On October 22, 2001, the certification was denied

At the time of Lewis’s petition, Conn. Gen. Stat. Ann. § 52‐470(b) (1983) 3

provided that a petitioner seeking to bring an appeal before the Connecticut Appellate Court could seek certification to appeal from the judge who decided the case, a judge of the Connecticut Appellate Court, or a justice of the Connecticut Supreme Court. The Connecticut Legislature revised this statute in 12 No. 14‐193‐pr

without opinion by a one‐justice order. Lewis then filed an

uncertified appeal with the Appellate Court. In support of his

appeal, Lewis provided the Appellate Court with transcripts from

his criminal trial, the probable cause hearing, and Sweeney’s

testimony at the Morant hearing; the state habeas court decision; and

excerpts from the FBI investigation discussing Ruiz’s relationship

with Raucci. On November 19, 2002, a three‐judge panel of the

Appellate Court issued a per curiam opinion, dismissing Lewis’s

appeal on the grounds that he failed to include the transcript from

his state habeas trial before Judge Zoarski and thus failed to provide

an adequate record for review. Lewis v. Commʹr of Corr.,

(2002). Thereafter, Lewis sought review by the

Connecticut Supreme Court through a petition for certification,

which was denied on January 14, 2003 without discussion. Lewis v.

Commʹr of Corr.,

(2003).

2002, eliminating the option to appeal to a Connecticut Supreme Court justice. Conn. Gen. Stat. Ann. § 52‐470(g) (2002).

13 No. 14‐193‐pr

IV. The District Court Proceedings

Lewis filed a petition for federal habeas relief in the District of

Connecticut, arguing, in relevant part, that the State denied his right

to a fair trial and violated his right to due process when it withheld

Brady material during his trial. Judge Haight first considered and

rejected the State’s claim that Lewis had procedurally defaulted on

his Brady claim.4 Lewis v. Commʹr of Corr., No. 03 Civ. 196,

, at *6 (D. Conn. Feb. 23, 2012). Then, on December 16, 2013,

following extensive motion practice, a ten‐day evidentiary hearing

at which Sweeney testified in person, and oral argument, Judge

Haight granted Lewis’s petition for habeas relief in a thorough 68‐

page opinion. Lewis v. Commʹr of Corr.,

(D. Conn.

2013). The district court determined that Lewis’s habeas claim

survived scrutiny under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”),

(d), which requires

deference to state procedures, because the state habeas decision was

The district court also determined that Lewis did not fail to exhaust his state 4

remedies, a determination not challenged in this appeal.

14 No. 14‐193‐pr

based on an “erroneous and unreasonable” determination of the

facts,

, and “was contrary to [clearly]

established Federal law, [as determined by the Supreme Court of the

United States],”

. The district court, after carefully

articulating the arguments on both sides and meticulously

reviewing all of the evidence, concluded that Lewis was entitled to

federal habeas relief.

.

The district court therefore directed the Commissioner of

Correction of the State of Connecticut to release Lewis from its

custody “within sixty (60) days of the date of this Ruling and Order,

unless the State of Connecticut within those 60 days declares its

written intention . . . to retry [Lewis] on the charges against him

. . . .”

at 208‐209. On February 14, 2014, the parties submitted a

joint motion to release Lewis, which was granted by the district

court. Accordingly, on February 26, 2014, the district court signed a

writ ordering Lewis’s release. The State timely appealed. 15 No. 14‐193‐pr

DISCUSSION

The State argues that the district court erred in granting

habeas relief because: (1) Lewis procedurally defaulted on his Brady

claim at the state level, and (2) Lewis did not satisfy either of

AEDPA’s substantive conditions under § 2254(d) because the state

habeas court’s decision did not contravene clearly established

federal law and was not based on an unreasonable factual

determination. We disagree.

Lewis, who was a pro se litigant in state court, sufficiently

complied with all state‐law procedural requirements capable of

barring federal review. Moreover, Lewis satisfied both of § 2254(d)’s

substantive predicates, even though he only needed to satisfy one.5

We conclude both (1) that the state habeas court contravened clearly

established federal law as determined by the Supreme Court in

A federal court may only grant a petitioner relief with respect to any claim 5

that was adjudicated on the merits in State court proceedings if the State adjudication: (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.

(d)(1)‐(2). 16 No. 14‐193‐pr

Brady and its progeny when it held the defendant was required to

exercise “due diligence” to obtain exculpatory evidence, Lewis,

, at *3, and (2) that the state habeas court based its

decision on unreasonable findings of fact when it ignored key

aspects of the record. Accordingly, the district court had authority

to consider the merits of Lewis’s Brady claim and properly granted

habeas relief.

I. Procedural Bars

We review do novo the question of whether a procedural

ground is adequate to support a state court’s judgment. See Monroe

v. Kuhlman,

(2d Cir. 2006).

“[F]ederal courts will not review questions of federal law

presented in a habeas petition when the state court’s decision rests

upon a state‐law ground that ‘is independent of the federal question

and adequate to support the judgment.’” Cone v. Bell,

(2009) (quoting Coleman v. Thompson,

(1991)). A

state court’s adjudication of a petitioner’s federal claim only bars

federal habeas review when “the last state court rendering a 17 No. 14‐193‐pr

judgment in the case clearly and expressly states that its judgment

rests on a state procedural bar.” Messiah v. Duncan,

(2d Cir. 2006) (internal quotation marks omitted). Additionally, it

must be “clear from the face of the opinion” that the state court’s

decision rests on a state procedural bar. Coleman,

(internal quotation marks omitted); see also Fama v. Commʹr of Corr.

Servs.,

(2d Cir. 2000). However, even if the state

court’s decision clearly rests on a procedural bar, federal review will

only be precluded if that procedural bar constitutes “a firmly

established and regularly followed state practice.” Ford v. Georgia,

, 423–24 (1991) (internal quotation marks omitted).

The State argues that Lewis’s Brady claim was procedurally

barred because (a) he failed to provide the Appellate Court with an

adequate record for review, and (b) he failed to brief the issue of

whether it was an abuse of discretion to deny him certification to

appeal. Neither argument has merit.

18 No. 14‐193‐pr

A. The Adequate‐Record Rule

The State first argues that Lewis procedurally defaulted on his

Brady claim because he did not provide the Appellate Court with a

transcript of the state habeas proceedings and thus failed to provide

an adequate record for review under Connecticut Rule of Appellate

Procedure 61–10. Conn. Practice Book 1998 § 61‐10. This argument

fails for several reasons.

First, it is not clear that the Appellate Court recognized the

Brady claim that Lewis indisputably raised, let alone dismissed it on

procedural grounds. The Appellate Court’s decision described the

issues before it as whether the state habeas court erred:

(1) in concluding that the testimony of Michael Sweeney, a police detective, did not constitute newly discovered evidence and (2) in failing to draw an adverse inference against the respondent commissioner of correction when Ovil Ruiz, a witness at the habeas trial, invoked his fifth amendment privilege against compelled self‐incrimination.

Lewis,

, at *5 (internal quotation marks omitted). 19 No. 14‐193‐pr

The Appellate Court appears to have missed Lewis’s Brady

claim entirely.6 Yet, in a clear and well‐researched pro se brief to the

Appellate Court, Lewis argued that the State failed to disclose

evidence that was material and exculpatory, citing Brady, United

States v. Bagley,

(1985), and United States v. Agurs,

(1976), among other relevant cases. With no reference to the

Brady claim in the Appellate Court’s decision, it is certainly not

“clear from the face of the opinion” that the state habeas court

rejected Lewis’s Brady claim on state‐procedural grounds. Coleman,

; see also Messiah,

.

Second, Lewis only failed to comply with the adequate‐record

requirement of Rule 61–10 if the state habeas transcript was

necessary for appellate review. Chapter 63 of Connecticut’s Rules

of Appellate Procedure states that an appellant must file the

portions of a trial‐court proceeding transcript that he “deem[s]

The Appellate Court’s failure to recognize Lewis’s Brady claim is likely due, 6

at least in part, to the State’s misrepresentation of the issues on appeal. The State’s brief before the Appellate Court characterized Lewis’s petition as presenting: (1) “claims of newly discovered evidence” and (2) “claims that the habeas court abused its discretion by not drawing an adverse inference against Ovil Ruiz.” S.A. 382. Nowhere in its brief did the State address Lewis’s Brady claim. 20 No. 14‐193‐pr

necessary” for review, but an appellant may file a statement that no

transcript is necessary. See Conn. Practice Book 1998 § 63–8; § 63–

4(a)(3). Lewis indicated in a statement to the Appellate Court that

the state habeas transcript was not necessary for review. See Lewis,

. He was correct.

Lewis’s petition first argued that the state habeas court erred

as a matter of law by requiring him to exercise “due diligence” to

obtain Brady material. In the particular circumstances presented

here, the Appellate Court would have been able to decide the purely

legal question of whether the state habeas court improperly

incorporated a “due diligence” requirement into its opinion without

reviewing the transcript from the state habeas proceedings.

Moreover, it is not clear what additional information the

Appellate Court would have gleaned from the state habeas

transcript that it did not already have. The State did not call

witnesses or offer exhibits during the state habeas trial. In support of

his appeal, Lewis provided the Appellate Court with transcripts

from his criminal trial and the probable cause hearing; Sweeney’s 21 No. 14‐193‐pr

testimony at the Morant hearing; the state habeas court decision; and

excerpts from the FBI investigation discussing Ruiz’s relationship

with Raucci. In these circumstances, the materials provided by

Lewis were adequate to enable the Appellate Court to review

Lewis’s claims of error, and the state has not explained how the

transcript could have improved the record.

B. Certification

Section 52–470(g) of the Connecticut General Statutes requires

a petitioner seeking to appeal a habeas court’s decision to file a

petition for certification to appeal. A petitioner may file an

uncertified appeal, however, if the denial of certification constituted

an abuse of discretion. Simms v. Warden,

(1994).

Under Connecticut law, failure to certify an appeal is an abuse of

discretion if the appeal is “not frivolous.” Taylor v. Commʹr of

Correction,

(2007) (internal quotation marks

omitted).

The State argues that Lewis procedurally defaulted on his

Brady claim following the denial of certification to appeal by a justice 22 No. 14‐193‐pr

of the Connecticut Supreme Court because he failed to brief the

question of whether that denial constituted an abuse of discretion in

his petition to the Appellate Court. But the State has not shown that

“a firmly established and regularly followed state practice” required

Lewis to brief the certification issue. See Ford, 498 U.S. at 423–24. In

fact, the State does not identify any Connecticut authority for a

certification‐briefing requirement; rather, it argues that Lewis failed

to follow the procedure for appeals. Moreover, Connecticut courts do

not regularly enforce this procedure. See, e.g., Hankerson v. Comm. of

Corr.,

, 368 (2014) (ordering supplemental

briefing when the petitioner failed to brief the certification question).

Even assuming such a briefing requirement existed, Lewis

effectively complied with it by arguing to the Appellate Court that

his appeal was not frivolous. Connecticut courts apply the criteria

set forth in Lozada v. Deeds,

, 431–32 (1991) (per curiam),

when determining whether an appeal is frivolous. Under Lozada, a

petitioner must demonstrate one of the following: “that the issues

are debatable among jurists of reason; that a court could resolve the 23 No. 14‐193‐pr

issues in a different manner; or that the questions are adequate to

deserve encouragement to proceed further.” 498 U.S. at 432

(emphasis in original) (internal quotation marks and alternations

omitted). Thus, in deciding the abuse of discretion question, a court

“necessarily must consider the merits of the petitioner’s underlying

claims.” Taylor,

.

Lewis fully argued the merits of his Brady claim. Although he

did not cite Lozada by name, Lewis contended, inter alia, that the

state habeas court “applied the wrong standard of review

concerning the evidence of Sweeney’s testimony,” and that its

factual findings were “unsupported by the evidence.” S.A. 296. He

also provided citations to the portions of Sweeney’s testimony

before Judge Blue, see supra note 1, which undermined Ruiz’s

credibility. At the very least, Lewis demonstrated that his case

presented issues that were debatable among jurists of reason. See

Lozada,

. Given that courts interpret pro se filings

liberally, see, e.g., Hill v. Curcione,

(2d Cir. 2011);

Ajadi v. Commʹr of Corr.,

(2006), we easily 24 No. 14‐193‐pr

interpret Lewis’s brief to argue that his appeal was not frivolous and

thus that it was an abuse of discretion to deny certification.

Accordingly, we find no procedural bar to considering the

merits of Lewis’s habeas claim and thus turn to AEDPA’s

substantive predicates.

II. § 2254(d) Substantive Predicates to Federal Habeas Review

We review a district court’s decision to grant a petition for a

writ of habeas corpus de novo and its factual findings for clear error.

Hemstreet v. Greiner,

(2d Cir. 2007).

AEDPA provides for federal habeas relief when a “person in

custody pursuant to the judgment of a State court . . . is in custody in

violation of the Constitution or laws or treaties of the United States,”

(a), subject to certain conditions. AEDPA states that

a federal habeas court may only grant a petitioner relief with

“respect to any claim that was adjudicated on the merits in State

court proceedings” if the State adjudication:

(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 25 No. 14‐193‐pr

(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.

(d)(1)‐(2); see also, e.g., Brown v. Alexander,

(2d Cir. 2008). A federal habeas court must assume that all

factual determinations made by the state court were correct unless

the petitioner rebuts those findings by clear and convincing

evidence.

(e)(1); see also Bierenbaum v. Graham,

(2d Cir. 2010). Given that the Appellate Court denied,

erroneously in our view, Lewis’s petition on the basis that he failed

to file the transcript of his state habeas proceeding, the only state

court that adjudicated Lewis’s habeas petition “on the merits” was

the state habeas court.

The phrase “clearly established federal law, as determined by

the Supreme Court of the United States” refers to “the holdings, as

opposed to the dicta, of [the Supreme] Court’s decisions as of the

time of the relevant state‐court decision.” Williams v. Taylor,

(2000). A state court decision is contrary to such clearly

established federal law if it “applies a rule that contradicts the

governing law set forth in the Supreme Court’s cases” or “if the state 26 No. 14‐193‐pr

court confronts a set of facts that are materially indistinguishable

from a decision of the Supreme Court and nevertheless arrives at a

result different from its precedent.” Boyette v. Lefevre,

(2d Cir. 2001) (quoting Williams,

) (internal alterations

omitted). A state court decision is based on a clearly erroneous

factual determination if the state court “failed to weigh all of the

relevant evidence before making its factual findings.” Doe v. Menefee,

(2d Cir. 2004); see also Milke v. Ryan,

(9th Cir. 2013) (a state court decision is based on an

“unreasonable determination of the facts” if the state court fails “to

consider key aspects of the record”).

In sum, in order to satisfy § 2254(d)’s substantive predicates

and merit federal review of his Brady claim, Lewis need only

establish either that the state habeas court’s decision: (1) contravened

clearly established federal law, as determined by the Supreme

Court, or (2) was based on an unreasonable determination of the

facts. Here, Lewis has shown both.

27 No. 14‐193‐pr

A. Clearly Established Federal Law: Brady and its Progeny

Well‐established Supreme Court precedent holds that the

prosecution has a clear and unconditional duty to disclose all

material, exculpatory evidence. See Brady,

. This duty

exists whether or not the defense requests exculpatory evidence. See,

e.g., Bagley, 473 U.S. at 681‐2; Giglio v. United States,

, 154‐

55 (1972) (applying Brady to impeachment evidence). The Supreme

Court has never required a defendant to exercise due diligence to

obtain Brady material. See, e.g., Agurs,

(“[I]f the

evidence is so clearly supportive of a claim of innocence that it gives

the prosecution notice of a duty to produce, that duty should

equally arise even if no request is made.”).

To be sure, we have held in several cases that “[e]vidence is

not ‘suppressed’ [for Brady purposes] if the defendant either knew,

or should have known, of the essential facts permitting him to take

advantage of any exculpatory evidence.” DiSimone v. Phillips,

(2d Cir. 2006); see also Leka v. Portuondo,

(2d Cir. 1982). The “knew” prong of this requirement is subjective, 28 No. 14‐193‐pr

and the “should have known” prong is objective—meaning that, if a

reasonable defendant in these circumstances should have known the

relevant facts, then the prosecution’s failure to disclose that evidence

does not implicate Brady. This requirement speaks to facts already

within the defendant’s purview, not those that might be unearthed.

It imposes no duty upon a defendant, who was reasonably unaware

of exculpatory information, to take affirmative steps to seek out and

uncover such information in the possession of the prosecution in

order to prevail under Brady.

Here, the Connecticut Superior Court’s ruling imposed just

such an affirmative “due diligence” requirement. See Lewis,

, at *3 (rejecting Lewis’s claim because the exculpatory

evidence at issue “was available by due diligence to the

defense”). Accordingly, the state habeas court’s imposition of such a

due diligence requirement plainly violated clearly established

federal law under Brady and its progeny.

The State’s argument that the state habeas court’s “due

diligence language is reasonably interpreted as directed to the 29 No. 14‐193‐pr

petitioner’s ‘actual innocence’ assertion, rather than his Brady claim,”

Resp. Br. at 39, distorts the state habeas court’s decision. The

relevant portion of the decision states:

The claim of the petitioner that exculpatory information was not provided to the defense prior to the trial in 1995, has not been proven. This court finds not only was all exculpatory evidence furnished to the defense, but also the alleged evidence was available by due diligence to the defense, and the petitioner was obliged to raise his claims before the trial court or the Appellate Court.

Lewis,

, at *3 (emphasis added). The “due

diligence” language patently pertains to Lewis’s claim that

“exculpatory evidence was not provided to the defense,” in other

words, to his Brady claim.

The State also argues that the due diligence finding was an

“alternate basis” for the state habeas court’s denial of Lewis’s

petition, and therefore the legal error is immaterial. That argument,

however, only succeeds if the state habeas court had a valid basis for

determining that “all exculpatory information [was] turned over to 30 No. 14‐193‐pr

the defense,” and thus that there was no Brady violation. For the

reasons explained below, it did not. 7

B. Unreasonable Determination of the Facts

The state habeas court’s determination that “all exculpatory

evidence [was] furnished to the defense” was clear factual error. The

prosecution never disclosed to Lewis or to defense counsel either

prior to or during trial that Raucci had coached Ruiz on the

testimony he ultimately gave at trial, that Ruiz was parroting what

Raucci told him, or that he was doing so because Raucci said he

would let him go. Nothing in the record supports a finding to the

contrary. The fact that the information to which Sweeney testified

The state habeas court also erred to the extent that it concluded that 7

Sweeney’s testimony would not have affected Lewis’s conviction and thus did not satisfy Brady’s materiality requirement. See Lewis v. Warden,

, at *3 (“The petitioner has failed to prove that any critical information was disclosed by Detective Raucci, or that he provided any false information to Ruiz.”). The state habeas court’s implication that Sweeney’s testimony would not have affected Lewis’s conviction also “involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States.”

(d)(1); see also Leka,

(“The touchstone of materiality is a reasonable probability of a different result.”). For the reasons explained in Part V, Sweeney’s testimony satisfied the materiality standard because there is a reasonable probability that its disclosure would have caused a different result. Any legal determination to the contrary, therefore, involved an unreasonable application of clearly established federal law. Additionally, as described in greater detail below, the state habeas court’s decision was based on an unreasonable determination of the facts. See infra Part II.B. 31 No. 14‐193‐pr

had not been provided to the prosecution at the time of trial is of no

import. The State’s failure to disclose exculpatory evidence,

including impeachment evidence, in its possession constitutes a

Brady violation, irrespective of the good faith or bad faith of the

prosecution, Brady,

, and regardless of whether the

information is known only by the police and not the prosecutor, see

Kyles v. Whitley,

, 437‐38 (1995); see also United States v.

Triumph Capital Grp., Inc.,

(2d Cir. 2008). 8

Moreover, Judge Blue concluded that Sweeney was a credible

witness,9 see Morant v. State, No. 398736,

, at *9

(Conn. Super. Ct. June 5, 2000) affʹd,

(2002), and

the state habeas court never questioned Sweeney’s credibility. Thus,

Lewis has rebutted the presumption in favor of the state habeas

We have held that evidence in state possession is not attributed to the 8

prosecution if known only by entities outside the “prosecution team.” See United States v. Stewart,

(2d Cir. 2006) (“[T]he propriety of imputing knowledge to the prosecution is determined by examining the specific circumstances of the person alleged to be an ‘arm of the prosecutor.’” (quoting United States v. Morell,

(2d Cir. 1975)). Here, there is no question that the evidence showing that Raucci coached Ruiz was within the possession of police officers, both Raucci and Sweeney, who were part of the investigative team and thus were “arm[s] of the prosecutor.” 9 After the federal habeas hearing, Judge Haight reached the same conclusion.

See Lewis,

. 32 No. 14‐193‐pr

court’s findings by “clear and convincing evidence.” See Bierenbaum,

.

The State argues that as a “corollary” to its finding that all

exculpatory information had been provided to the defense, the state

habeas court determined that Sweeney’s testimony was not

exculpatory. Nothing in the state habeas court’s decision supports

the State’s argument, and we do not owe AEDPA deference to

speculation that the state habeas court reached that conclusion. See

Boyette,

.

In any event, the state habeas court plainly based its decision

on an unreasonable determination of the facts. The state habeas

court found that Raucci only provided Ruiz with “insignificant”

details. Lewis,

, at *2. But Sweeney’s testimony is

replete with evidence showing that Raucci supplied Ruiz with, in

Sweeney’s words, “the whole case,” S.A. 317, and told Ruiz to say

that “he was present with the two individuals, Scott Lewis and

Stefon Morant,” S.A. 460. The state habeas decision also notably

failed to reference the evidence that Ruiz not only denied having 33 No. 14‐193‐pr

any knowledge of the murders three different times, but that after

implicating Lewis in the murders, Ruiz told Sweeney the

inculpatory account was false and that he was lying to protect

himself. In failing to note, much less consider, these key facts, the

state habeas court based its decision on an unreasonable

determination of the facts. See, e.g., Menefee,

; Milke,

.

Given that Lewis has satisfied AEDPA’s substantive

predicates, we finally turn to the merits of his Brady claim.

III. Section 2254(a): The Merits of Lewis’s Brady Claim

There are three components of a 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.” Boyette,

(quoting

Strickler v. Greene,

, 281‐82 (1999)).

We agree with Judge Haight’s thoughtful analysis of Lewis’s

Brady claim, summarized as follows. 34 No. 14‐193‐pr

A. Exculpatory Evidence

Sweeney’s testimony and the facts he revealed were clearly

favorable to Lewis. “Evidence is favorable to the accused if it either

tends to show the accused is not guilty or impeaches a prosecution

witness.” Boyette,

(citing Bagley,

).

Ruiz―the State’s key witness at trial―repeatedly denied to the

police that he was at the murder site and that he knew anything

about the murders. His statement changed only after Raucci

provided critical details about the case, told Ruiz “that it was in his

best interest to tell what happened [and] give a detailed statement as

to his participation and also the other two,” S.A. 317, and promised

to “let [Ruiz] go” if he did so, S.A. 446. That evidence was “of a kind

that would suggest to any prosecutor that the defense would want

to know about it.” Leka,

.

If defense counsel had known this information at trial, he

could have cross‐examined Ruiz regarding his prior inconsistent

statements and the extent to which Raucci coached him and induced

him to testify falsely. See Giglio, 405 U.S. at 154‐55 (applying Brady to 35 No. 14‐193‐pr

material that can be used to impeach a prosecution witness). As the

district court concluded, Sweeney’s testimony was clearly

exculpatory under Brady or impeachment material under Giglio, if

not both.

B. Failure to disclose

For the reasons explained above, the State plainly failed to

disclose Brady evidence to the defense in Lewis’s case.

C. Prejudice

To establish prejudice, a plaintiff must show that the evidence

was material. Leka,

(quoting Kyles,

).

“The touchstone of materiality is a reasonable probability of a

different result.”

(alteration omitted). As the Supreme Court has

explained:

The 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. A ‘reasonable probability’ of a different result is accordingly shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’

Kyles,

(quoting Bagley,

). 36 No. 14‐193‐pr

At trial, no witness other than Ruiz directly implicated Lewis

in the murders,10 and the State did not introduce any forensic or eye‐

witness testimony against Lewis. As a result, Ruiz’s testimony was

critical to the State’s obtaining a conviction.

Sweeney provided credible evidence that Ruiz simply

parroted information supplied by an unscrupulous police officer.

Sweeney’s testimony thoroughly undermines Ruiz’s credibility and

thus any reasonable confidence in the outcome of the trial. See Kyles,

. Accordingly, the State’s failure to disclose the

evidence relating to Ruiz’s interrogation prejudiced Lewis and

deprived him of his Constitutional right to a fair trial.

CONCLUSION

For the reasons stated above, we AFFIRM the District Court’s

order granting Lewis’s petition for habeas relief under

.

The only other witness who offered any testimony connecting Lewis to the 10

murders, Jose Roque, recanted prior to trial and insisted that Raucci had coached him on what to say in his statement. S.A. 187‐188. Significantly, at Lewis’s trial, Roque also testified that Raucci told him that Raucci “wanted to put Scott Lewis away.” S.A. 193.