Jones v. Bell ( 2023 )

22-312
Jones v. Bell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 16th day of May, two thousand twenty-three.
PRESENT:
RICHARD J. SULLIVAN,
WILLIAM J. NARDINI,
MYRNA PÉREZ,
Circuit Judges.
_____________________________________
ALLEN JONES,
Petitioner-Appellant,
v. No. 22-312
SUPERINTENDENT EARL BELL, CLINTON
CORRECTIONAL FACILITY,
Respondent-Appellee.
_____________________________________
For Petitioner-Appellant: DAVID J. KLEM (Robert S. Dean, on the brief),
Center for Appellate Litigation, New York,
NY.
For Respondent-Appellee: SHEILA O’SHEA, Assistant District Attorney
(Steven C. Wu, Chief of Appeals Division, on
the brief), for Alvin L. Bragg, Jr., District
Attorney for New York County, New York,
NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Colleen McMahon, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Allen Jones appeals from the district court’s denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction for first-
degree manslaughter and first-degree gang assault in connection with the May
2010 shooting and death of Elias Peguero at a bodega in Manhattan. On appeal,
Jones argues that (1) the prosecution violated his rights under Brady v. Maryland,
373 U.S. 83 (1963), by withholding certain information regarding a cooperating
witness, Yandwin Corniel, from the defense, and (2) the state trial court violated
his Sixth Amendment right to confrontation when it refused to strike Corniel’s
testimony after he invoked his Fifth Amendment privilege during cross-
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examination. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
We review the denial of a section 2254 petition de novo. Scrimo v. Lee, 935
F.3d 103, 111 (2d Cir. 2019). A federal court may not grant a writ of habeas corpus
pursuant to section 2254 unless (1) the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly established [f]ederal law, as
determined by the Supreme Court of the United States,” or (2) the state court’s
decision “was based on an unreasonable determination of the facts in light of the
evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d); see also
Harrington v. Richter, 562 U.S. 86, 100 (2011).
I. Brady Claim
“It is well-established by Brady and related authorities that in a criminal
prosecution, the government has an affirmative duty under the Due Process
Clause to disclose favorable evidence known to it, even if no specific disclosure
request is made by the defense.” United States v. Hunter, 32 F.4th 22, 30 (2d Cir.
2022) (internal quotation marks omitted). “That said, not all instances of
governmental nondisclosure violate Brady . . . .” Id. Rather, the Brady doctrine
extends only to evidence that is “(1) favorable, (2) suppressed, and (3) prejudicial.”
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Id. at 31. Moreover, for the withheld evidence to be prejudicial, it must be
“material either to guilt or to punishment.” Brady, 373 U.S. at 87. “[E]vidence is
material only if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.”
United States v. Stillwell, 986 F.3d 196, 200 (2d Cir. 2021) (internal quotation marks
omitted). Undisclosed impeachment evidence concerning a government witness
“may be . . . material where the witness in question supplied the only evidence
linking the defendant to the crime.” United States v. Avellino, 136 F.3d 249, 256 (2d
Cir. 1998). By contrast, “where ample ammunition exists to attack a witness’s
credibility, evidence that would provide an additional basis for doing so is
ordinarily deemed cumulative and hence immaterial.” United States v. Orena, 145
F.3d 551, 559 (2d Cir. 1998).
Jones argues that the prosecution committed a Brady violation by
purposefully withholding information regarding Corniel’s prior bad acts and
criminality. Jones argues that the withheld evidence was material under Brady
because “it went to the heart of Corniel’s credibility,” which was a critical issue in
the case given that he was “the only witness to offer direct evidence of Jones’[s]
intent.” Jones Br. 17–18. Specifically, Corniel testified that Jones had said “pop
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him” shortly before Jones’s co-defendant Nakae Thompson shot Peguero. Jones
Addendum at 8. Jones additionally asserts that the withheld evidence was
relevant to assessing Corniel’s bias because Corniel had entered into a cooperation
agreement and the prospect of immunity for his crimes “provided strong motive
for Corniel to curry favor with the prosecution.” Jones Br. 22–23.
We cannot conclude that the withheld evidence was material under Brady.
At trial, Jones had ample information to impeach Corniel’s credibility; indeed,
Corniel was cross-examined as to his contradictory grand jury testimony, in which
he identified Jones’s associate, Danny Barnhill, as the individual who had said
“pop him” and admitted to being high on the evening of the shooting. And
critically, Corniel admitted on cross-examination that he did not know who said
“pop him,” thus demonstrating that Corniel had been thoroughly impeached on
that issue. Dist. Ct. Doc. No. 16-22 at 52–54.
The jury also knew that there was a then-pending case against Corniel
involving the possession of a weapon and ammunition, that he had entered into a
cooperation agreement with the prosecution, and that he had an extensive criminal
history that included crimes of dishonesty, such as selling fake drugs. See United
States v. Estrada, 430 F.3d 606, 618 (2d Cir. 2005) (recognizing “rule of thumb” that
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“convictions which rest on dishonest conduct relate to credibility whereas those of
violent or assaultive crimes generally do not” (internal quotation marks omitted)).
Accordingly, we agree with the district court that the undisclosed evidence
regarding Corniel’s additional criminal conduct was cumulative.
Furthermore, we have noted that “[w]here the evidence against the
defendant is ample or overwhelming, the withheld Brady material is less likely to
be material than if the evidence of guilt is thin.” Hunter, 32 F.4th at 32 (internal
quotation marks omitted). Here, we agree with the district court that the record
contains ample evidence establishing that Jones acted with the requisite intent for
the manslaughter and gang-assault counts. Surveillance video confirms that
Jones violently assaulted Peguero in the bodega and that he saw Barnhill hit
Peguero in the face with a bag of ice. And, as the district court noted, surveillance
video also shows that Jones looked at Thompson while Thompson had the gun in
his hand, did not appear to react to seeing the gun, and instead continued to
pursue Peguero. The video evidence was corroborated at trial by the testimony
of the bodega clerk, who stated that Thompson could be seen pointing the gun at
Peguero prior to the shooting and that Jones calmly walked out of the bodega after
Peguero had been shot. Given the ample evidence of intent in the record other
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than Corniel’s testimony, we cannot conclude that the withheld evidence was
material under Brady.
II. Confrontation Clause Claim
The Confrontation Clause of the Sixth Amendment provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.” U.S. Const. amend. VI. Supreme Court caselaw
clearly establishes that the Confrontation Clause entitles a criminal defendant to
“a meaningful opportunity to cross-examine witnesses against him.” Alvarez v.
Ercole, 763 F.3d 223, 229–30 (2d Cir. 2014) (internal quotation marks omitted); see
also Davis v. Alaska, 415 U.S. 308, 315–16 (1974). Nevertheless, although the
Confrontation Clause guarantees “an opportunity for effective cross-examination,”
it does not guarantee “cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20
(1985).
“Consistent with these principles, this Court has recognized that in some
instances a defendant’s [S]ixth [A]mendment right to confrontation will be denied
as a result of a witness’[s] invocation of his or her [F]ifth [A]mendment privilege
against self-incrimination.” Bagby v. Kuhlman, 932 F.2d 131, 135 (2d Cir. 1991).
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In order to reconcile these competing interests, a court must consider “(1) whether
the matter about which the witness refuses to testify is collateral to his or her direct
testimony, and (2) whether the assertion of the privilege precludes inquiry into the
details of his or her direct testimony.” Id. While matters that bear only on
witness credibility are collateral, see United States v. Cardillo, 316 F.2d 606, 611 (2d
Cir. 1963), matters “tending to establish a reason to fabricate” are not, Justice v.
Hoke, 90 F.3d 43, 48 (2d Cir. 1996) (internal quotation marks omitted); see also Davis,
415 U.S. at 316 (explaining that “[t]he partiality of a witness” including “possible
biases, prejudices, or ulterior motives,” is “always relevant as discrediting the
witness and affecting the weight of his testimony” (internal quotation marks
omitted)). If a witness invokes the privilege regarding a collateral matter or if
such invocation does not preclude inquiry into the witness’s direct testimony, no
corrective action is necessary. Bagby, 932 F.2d at 135; United States v. Brooks, 82
F.3d 50, 54 (2d Cir. 1996). A witness’s testimony need only be stricken when the
“witness’s assertion of the privilege precludes inquiry into the details of his direct
testimony so that the defense is deprived of the right to test the truth of his direct
testimony.” Brooks, 82 F.3d at 54 (internal quotation marks omitted).
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Jones argues that the state trial court deprived him of the right to confront
Corniel about his cooperation agreement and his possible motivations for
testifying against Jones. Jones also asserts that the stipulation concerning
Corniel’s pending criminal charges and cooperation that was read to the jury was
an insufficient substitute for cross-examination because the stipulation did not
explain the benefits that Corniel was to receive, or that he expected to receive, by
virtue of his cooperation.
We conclude that the district court properly denied habeas relief as to
Jones’s Confrontation Clause claim. Here, the stipulation regarding Corniel’s
cooperation agreement enabled the jury to make a “discriminating appraisal” of
Corniel’s credibility and motive to lie. United States v. Roldan-Zapata, 916 F.2d 795,
806 (2d Cir. 1990) (internal quotation marks omitted). The stipulation set forth
the basic facts regarding Corniel’s then-pending gun charge, noted that he was
facing up to fifteen years in prison if convicted of that charge, and represented that
the prosecution would inform the sentencing court in Corniel’s case as to the
extent of his cooperation. Because the stipulation provided the jury with facts
sufficient to make a discerning appraisal of Corniel’s motives, it was not necessary
that the jury be specifically informed as to Corniel’s subjective understanding of
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the benefits he stood to gain from cooperating. We therefore conclude that there
was no violation of Jones’s Sixth Amendment right.
Even assuming that there had been a violation of Jones’s right to confront
Corniel, we agree with the district court that any such error was harmless. See
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). As explained above in the context
of Jones’s Brady claim, the record contained ample evidence of Jones’s guilt of
manslaughter and gang assault, even without Corniel’s testimony. Indeed, video
surveillance footage and the bodega clerk’s corroborating testimony reflected that
Jones violently assaulted Peguero, witnessed Barnhill assault Peguero, did not
react when he saw Thompson holding a gun, and calmly exited the bodega after
the shooting – evidence which provided abundant support for the jury’s
conclusion that Jones acted with the requisite intent. Because we cannot conclude
that any purported violation of Jones’s Sixth Amendment right had a “substantial
and injurious effect or influence” on the jury’s verdict, the purported
Confrontation Clause violation was harmless. Henry v. Speckard, 22 F.3d 1209,
1215 (2d Cir. 1994) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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