Full Circuit Allows Rights Suit, Despite Guilty Plea

, New York Law Journal


Marcos Poventud and his attorney Julia Kuan
Marcos Poventud and his attorney Julia Kuan at Poventud's home in Inwood, NY in June.

With Duopo's identification the centerpiece of the evidence against him, Poventud went on trial in Bronx Supreme Court in 1998 offering an alibi defense.

During deliberations, the jury asked for more information on Duopo's initial failures to identify Poventud. The jury told the judge they were "hopelessly deadlocked" after four days, but then resumed deliberations and convicted Poventud and co-defendant Robert Maldonado.

Poventud was sentenced to serve 10 to 20 years in prison.

Maldonado's attorney, Julia Kuan, of Romano & Kuan, won a new trial in 2002 and, at the second trial, the truth about Duopo's misidentification was revealed.

This led Kuan to successfully argue that the police had violated their disclosure obligations and secure a new trial for Poventud in 2005.

Prosecutors told Kuan they would appeal the new trial order, an appeal which would have kept Poventud in prison beyond the nine years he already served. As an alternative, they offered him immediate release if he would plead guilty to the lowest felony on the ladder—attempted armed robbery.

Poventud took the deal in January 2006, ending a prison term that his attorney, Joel Rubin, said involved numerous violent acts, including sexual assault, committed against his client.

But it was Poventud's guilty plea to the lesser charge, where he allocated to being at the scene of the crime, that led Batts to dismiss his §1983 civil lawsuit under Heck.

Heck only allows a §1983 plaintiff to seek damages if he shows that his challenged conviction had been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal or questioned by a federal judge's issuance of a writ of habeas corpus.

The April majority of Judges Guido Calabresi and Robert Sack reversed on the grounds that Heck didn't apply to Poventud's lawsuit because he was out of prison when the lawsuit was filed and he no longer had access to habeas relief. Jacobs dissented.

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