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.

A man who had his attempted murder conviction vacated but then pleaded guilty to a lesser offense just to get out of prison can sue the state for civil rights violations without running afoul of U.S. Supreme Court case law, the full U.S. Court of Appeals for the Second Circuit ruled Thursday.

Sitting en banc, nine Second Circuit judges held in Poventud v. City of New York, 12-1011-cv, that Marcos Poventud's lawsuit alleging that police withheld exculpatory evidence critical to his defense for the 1987 murder of a livery cab driver could proceed without violating the holding of Heck v. Humphrey, 512 U.S. 477 (1994).

Heck held that suits for damages under 18 U.S.C. §1983 are precluded where they would have the effect of challenging existing state or federal criminal convictions. It was cited by Southern District Judge Deborah Batts (See Profile) when she dismissed Poventud's lawsuit on the grounds that his plea to a lesser offense did just that.

Batts' decision was overturned by a divided panel of the Second Circuit in April (NYLJ April 24, 2013), a ruling that triggered debate at the circuit, which voted to rehear the case en banc (NYLJ June 10, 2013).

On Thursday, Judges Richard Wesley (See Profile), Robert Katzmann (See Profile), Guido Calabresi (See Profile), Rosemary Pooler (See Profile), Robert Sack (See Profile), Peter Hall (See Profile), Gerard Lynch (See Profile), Raymond Lohier (See Profile) and Susan Carney (See Profile) upheld the April panel's split decision vacating the Batts dismissal. Wesley wrote for the majority with Lynch and Lohier writing concurrences.

Dissenting were Judges Dennis Jacobs (See Profile), Jose Cabranes (See Profile), Reena Raggi (See Profile), Debra Ann Livingston (See Profile) and Christopher Droney (See Profile). Jacobs and Livingston wrote dissenting opinions and Judge Denny Chin (See Profile) dissented in part and concurred in part.

The case stems from the March 1997 shooting of livery driver Younis Duopo during an attempted robbery in the Bronx. Police recovered a wallet from his vehicle containing an identification card belonging to Francisco Poventud, Marcos Poventud's older brother.

Duopo saw the photo as part of an array and identified Francisco Poventud as the shooter, but police soon learned that he was in jail when Duopo was shot.

Police then showed Duopo a photo of Marcos Poventud as part of an array once, twice and three times, but Duopo failed to identify him as one of the robbers. It was only when they showed him the photo in a fourth array did he identify Poventud as the shooter.

Detectives did not preserve the photo array, nor did they tell Bronx prosecutors about the mistaken identification of Francisco Poventud.

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