Third Circuit Rules Lower Courts Abused Discretion When They Failed to Conduct Evidentiary Hearing on Brady Claim and on Conflict of Interest Claim
by Douglas Ankney
The U.S. Court of Appeals for the Third Circuit ruled that the Superior Court abused its discretion when it failed to conduct an evidentiary hearing on a habeas petitioner’s Brady claim and ruled the Appellate Division abused its discretion when it failed to conduct an evidentiary hearing on a claim that counsel was ineffective due to a conflict of interest.
In September 1993, three men broke into the home of Elroy Connor. When Connor and Daniel Ezekiel interrupted the burglary, Ezekiel was shot and killed. The three men fled. Later James Roach was tried for first-degree murder in connection with Ezekiel’s death. When asked during trial about a co-conspirator named Carl Simon, Roach denied knowing Simon. Roach testified he was at his girlfriend’s house on the night in question and wasn’t involved in the crime. Roach was convicted and appealed, but he later withdrew his appeal in March 1995.
After his conviction, Roach provided a statement to the Government that was completely opposite of his testimony at his trial. Roach now stated that Simon orchestrated the burglary and shot Ezekiel. Simon was arrested shortly after Roach’s conviction. Roach was the Government’s key witness at Simon’s murder trial. Roach claimed he testified differently at his own trial because he was scared that Simon would kill him. When asked by the prosecutor if any promise of a sentence reduction had been made to him by the Government in exchange for his testimony against Simon, Roach answered that he had only been promised protection from Simon.
Augustin Ayala, Simon’s court appointed attorney, asked Roach if the third burglar was named Daryl Ward. Roach testified that Ward fit the description, but Roach didn’t think Ward was the third burglar because Ward was allegedly in jail when the crime occurred. Roach did say, however, that after the three men fled Connor’s home, the third man parted ways where Daryl Ward lives. Additionally, Roach indicated the third man was named Crucian, and Roach testified he had heard people refer to Ward as “Crucian.” Although other people testified at Simon’s trial, Roach was the only one to place Simon in Connor’s house and identify Simon as the one who shot Ezekiel. Simon was convicted.
Years later, Ayala testified in an unrelated proceeding that he believed Ward was the third man in the Connor house. Ayala testified that even though Bureau of Corrections’ records indicated Ward was incarcerated at the time of the crime, Ayala knew Ward was out because Ward was a client of Ayala. Ayala further testified that he didn’t force Ward to testify because “[t]he records would indicate that he would be in jail.”
After Simon’s appeals were exhausted, he filed a habeas petition in federal district court alleging, inter alia, that the Government violated its Brady disclosure obligations. Simon stated that at Roach’s re-sentencing Roach’s attorney testified that “after we had filed our appeal with regards to [Roach’s conviction], we were approached by the Government and we agreed with regards to that matter to testify in Territorial Court. Upon our testimony ... we stipulated to vacate the conviction for first degree murder.” Simon also presented the fact that after Roach’s testimony helped secure Simon’s conviction, Roach withdrew his ongoing appeal.
The U.S. Attorney’s Office then requested Roach’s conviction for first-degree murder be vacated and reduced to second-degree murder based on Roach’s extensive cooperation. The district court obliged and reduced Roach’s sentence to 20 years. Simon’s habeas petition was denied on the grounds that he had failed to prove any “agreement” existed “prior” to Roach’s testimony. Simon appealed to the Appellate Division. Due to a series of procedural errors and missteps, Simon was permitted to add a claim to his habeas in the Appellate Division. In one claim, he alleged that Ayala was ineffective due to a conflict of interest. He argued that Ayala protected Ward by not having Ward present to testify that he was the third man and that either Ward shot Ezekiel or Ward was an eyewitness to who did. The Appellate Division denied the petition, and Simon appealed to the Third Circuit.
The Third Circuit observed that when the Government fails to disclose evidence that could help impeach an opposing witness, it is a violation of due process. Brady v. Maryland, 373 U.S. 83 (1963). To establish a Brady violation, a defendant must show: (1) the government withheld evidence, (2) the evidence was favorable ... because ... of impeachment value, and (3) the withheld evidence was material. United States v. Walker, 657 F.3d 160 (3d Cir. 2011). For evidence to be material, it requires only that there is a reasonable probability the outcome of the proceedings would have been different if the evidence had been disclosed. United States v. Bagley, 473 U.S. 667 (1985). Because only the prosecution alone can know what was undisclosed, a petitioner need only make a prima facie showing of a Brady violation in order to obtain an evidentiary hearing. A lower court abuses its discretion when it denies an evidentiary hearing after the prima facie showing has been made, and the claim is not otherwise procedurally barred or if the factual allegations are not contravened by the existing record. Palmer v. Hendricks, 592 F.3d 386 (3d Cir. 2010). Evidence that the Government agreed to reduce Roach’s sentence in exchange for his testimony would have impeached Roach. The evidence was material because Roach was the only witness to place Simon at the scene of the crime and the only one who identified Simon as the killer, so impeaching him could have altered the jury’s verdict. The Court concluded Simon had made a prima facie showing, and the Superior Court erred when it failed to convene an evidentiary hearing.
A petitioner claiming a conflict of interest must prove (1) multiple representation that (2) created an actual conflict of interest that (3) adversely affected the lawyer’s performance. Sullivan v. Cuyler, 723 F.2d 1077 (3d Cir. 1983). A petitioner may prove the claim by showing that the attorney failed to pursue an alternative strategy that (a) could benefit the instant defendant and (b) would violate the attorney’s duties to the other client. United States v. Morelli, 169 F.3d 798 (3d Cir. 1999). Simon’s allegations, again, made a prima facie showing that his attorney had a conflict of interest by not subpoenaing Ward to testify. The evidence revealed that either Ward was the third man, or he was in jail when the crime occurred.
The Court concluded the Appellate Division erred when it failed to convene an evidentiary hearing to determine the facts. Accordingly, the Third Circuit reversed as to the Brady claim as well as the conflict of interest claim and remanded to the Superior Court with instructions to conduct an evidentiary hearing regarding those claims. See: Simon v. Government of the Virgin Islands, 929 F.3d 118 (3d Cir. 2019).
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Related legal case
Simon v. Government of the Virgin Islands
|Cite||929 F.3d 118 (3d Cir. 2019)|
|Level||Court of Appeals|