Ervine v. Smith

     22-1165
     Ervine v. Smith


                            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 A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1                 At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
 3   New York, on the 28th day of June, two thousand twenty-four.
 4
 5   PRESENT:
 6               GERARD E. LYNCH,
 7               SUSAN L. CARNEY,
 8               MICHAEL H. PARK,
 9                     Circuit Judges.
10   _____________________________________
11
12   Moses Ervine,
13
14                           Petitioner-Appellant,
15
16                     v.                                            22-1165
17
18   Joseph T. Smith,
19
20                     Respondent-Appellee.
21   _____________________________________
22
23   FOR PETITIONER-APPELLANT:                            ANDREW H. FREIFELD, Esq., New York,
24                                                        NY.
25
26   FOR RESPONDENT-APPELLEE:                             ROBERT C. MCIVER, Assistant Attorney
27                                                        General, (Ira M. Feinberg, Deputy
28                                                        Solicitor General for Criminal Matters,
29                                                        Barbara D. Underwood, Solicitor
30                                                        General, on the brief ), for Letitia James,
31                                                        Attorney General, New York, NY.
32
 1           Appeal from a judgment of the United States District Court for the Southern District of

 2   New York (Ramos, J.).

 3           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the district court is AFFIRMED.

 5           A New York state jury convicted Moses Ervine of first-degree manslaughter for the May 1,

 6   2006 killing of Johans Gonzalez. Ervine now challenges that conviction via a federal habeas

 7   petition. See 28 U.S.C. § 2254. The district court denied relief as to each of Ervine’s several

 8   claims; we granted a certificate of appealability as to two. First, Ervine challenges the trial court’s

 9   determination that he forfeited by misconduct his Confrontation Clause rights as to one witness,

10   Maurilio Lagunas. Second, Ervine claims that the trial court incorrectly determined that the

11   state’s late disclosure of certain evidence did not violate his rights under Brady v. Maryland, 373

12   U.S. 83 (1963), because Ervine could not demonstrate prejudice.                   We assume the parties’

13   familiarity with the facts, procedural posture, and issues on appeal. 1

14           A.       Legal Standards

15           Section 2254 “functions as a guard against extreme malfunctions in the state criminal

16   justice systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011)


             1
                The government moves to supplement the record on appeal with (1) the judgment roll created in
     the state court proceedings and filed with the Appellate Division during Ervine’s direct appeal; (2) a copy
     of the decision of the Appellate Division; (3) a copy of the New York Court of Appeals’ denial of Ervine’s
     application to appeal; (4) several exhibits from the trial court proceedings; and (5) documents related to the
     deportation of an absent eyewitness. Dkt. 127. On February 26, 2024, a motions panel granted the
     government’s motion as to categories (2) and (3) and referred the remaining aspects of the motion to this
     panel. Dkt. 136. We now grant the motion as to the documents in categories (1) and (4), as they were
     part of the record before the trial court and are “material” to the issues on appeal. Fed. R. App. P. 10(e)(2).
     We deny the motion as to the documents in category (5), as they were not before the trial court. Natofsky
     v. City of New York, 921 F.3d 337, 344 (2d Cir. 2019) (“Rule 10(e) is not a device for presenting evidence
     to this Court that was not before the trial judge.” (cleaned up)).

                                                           2
1    (cleaned up).    For claims adjudicated on the merits, § 2254 offers relief only when such

2    adjudication: (1) “resulted in a decision that was contrary to, or involved an unreasonable

3    application of, clearly established Federal law, as determined by the Supreme Court of the United

4    States”; or (2) “resulted in a decision that was based on an unreasonable determination of the facts

5    in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). We

6    review the denial of a § 2254 petition de novo. Scrimo v. Lee, 935 F.3d 103, 111 (2d Cir. 2019).

7           “Clearly established federal law” refers to “the governing legal principle or principles set

 8   forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade,

 9   538 U.S. 63, 71-72 (2003) (cleaned up). A state-court decision is “contrary to” clearly established

10   federal law “if the state court applies a rule that contradicts the governing law set forth in [the

11   Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially

12   indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a result

13   different from [Supreme Court] precedent.” Id. at 73.           A state-court decision reflects an

14   “unreasonable application of” clearly established federal law “if the state court identifies the

15   correct governing legal principle from th[e Supreme] Court’s decisions but unreasonably applies

16   that principle to the facts of the prisoner’s case.” Id. at 75 (cleaned up).

17          A state court makes an “unreasonable determination of the facts” only when “reasonable

18   minds could not disagree” that such a determination was error. Cardoza v. Rock, 731 F.3d 169,

19   177-78 (2d Cir. 2013); see Rice v. Collins, 546 U.S. 333, 341-42 (2006). Paradigmatic examples

20   of such error include “ignor[ing] highly probative and material evidence,” or “misapprehend[ing]

21   and mistat[ing] aspects of the record.”      Cardoza, 731 F.3d at 178.         A “state-court factual

22   determination is not unreasonable,” however, “merely because the federal habeas court would have

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 1   reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010).

 2          B.      Confrontation Clause Claim

 3          The Confrontation Clause guarantees the accused’s right to cross-examine witnesses.

 4   U.S. Const. amend. VI; see Cotto v. Herbert, 331 F.3d 217, 229 (2d Cir. 2003). But the right may

 5   be forfeited by misconduct. See United States v. Dhinsa, 243 F.3d 635, 651 (2d Cir. 2001);

 6   Reynolds v. United States, 98 U.S. 145, 159-60 (1878). Relevant here, defendants waive their

 7   rights under the Confrontation Clause when they (1) are responsible for procuring the

 8   unavailability of a witness; and (2) act with an intent to procure that witness’s unavailability. See

 9   Dhinsa, 243 F.3d at 653-54; Giles v. California, 554 U.S. 353, 367 (2008).

10          Ample evidence supports the trial court’s conclusion that Ervine waived his right to

11   confront Lagunas. Lagunas testified before the grand jury that Ervine threatened him in various

12   ways. Among them, Ervine promised that the “same thing” that happened to Gonzalez would

13   happen to Lagunas if he were to “say something.” Joint App’x at 314. And, shortly after the

14   homicide, two men attempted to kidnap Lagunas by posing as police officers, an attempt Lagunas

15   escaped only by climbing through the window of the kidnappers’ car. Id. at 317. Other evidence

16   tended to show that Lagunas took these threats seriously. For example, Lagunas agreed to testify

17   before the grand jury only after receiving assurances from a prosecutor that the proceedings were

18   secret. And when officers made contact with Lagunas in 2009 about returning to New York to

19   testify, he said that he would not return because he was “afraid.” Id. at 160, 189. It was thus

20   reasonable for the trial court to find Ervine responsible for intentionally procuring Lagunas’s

21   absence.




                                                      4
 1           Ervine’s arguments to the contrary are unavailing. First, Ervine notes that Lagunas

 2   cooperated with prosecutors and testified before the grand jury even after having been threatened.

 3   This, he suggests, means that any threats were ineffective and could not have been the cause of

 4   Lagunas’s absence. But Ervine overlooks Lagunas’s concern that his grand jury testimony remain

 5   secret. Lagunas’s willingness to testify in secret does not demonstrate that he was willing to

 6   testify in public. Second, Ervine argues that Lagunas may have been afraid to return to the United

 7   States for any number of reasons not related to Ervine, including the risk of being deported again.

 8   But in light of the severity of the threatening conduct in 2006 and Lagunas’s demonstrated

 9   willingness to return to the United States—he returned at least three times between 2006 and

10   2009—the trial court reasonably concluded that Ervine’s misconduct caused Lagunas’s decision

11   not to testify.

12           C.        Brady Claim

13           The trial court’s denial of Ervine’s Brady claim was neither contrary to, nor an

14   unreasonable application of, clearly established federal law, nor was it based on an unreasonable

15   determination of the facts. The court denied Ervine’s claim because he failed to demonstrate that

16   the state’s mid-trial disclosure of an anonymous call log suggesting that “Slice and Dice” were

17   Gonzalez’s killers was prejudicial. See United States v. Hunter, 32 F.4th 22, 31 (2d Cir. 2022).

18           Suppression is prejudicial if “there is a reasonable probability that, had the evidence been

19   disclosed to the defense, the result of the proceeding would have been different.” United States

20   v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995) (quoting United States v. Bagley, 473 U.S. 667, 682

21   (1985) (opinion of Blackmun, J.); id. at 685 (opinion of White, J.)). “The question is not whether

22   the defendant would more likely than not have received a different verdict with the evidence, but

                                                      5
1    whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of

2    confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citing Bagley, 473 U.S. at 678 (opinion

3    of Blackmun, J.)). A new trial is thus required whenever the undisclosed evidence is sufficient to

4    “undermine confidence” in the verdict. See Smith v. Cain, 565 U.S. 73,75 (2012) (cleaned up).

 5           Here, Ervine cannot show a reasonable probability of a different result absent the late

6    disclosure. First, the trial court granted Ervine a continuance after the log’s disclosure, and when

7    trial resumed, Ervine was permitted to recall witnesses and impeach their testimony using the log.

 8   See United States v. Halloran, 821 F.3d 321, 342 (2d Cir. 2016) (finding no Brady violation

 9   because “[t]he continuance gave [defendant] time to make ‘effective use’ of the [evidence].”).

10   Second, the log itself was hearsay and was thus inadmissible for the truth of the “Slice and Dice”

11   identification. Third, any prospect that earlier disclosure of the log would have resulted in the

12   discovery of additional evidence, with that evidence sufficient to create a reasonable probability

13   of a different result, is too speculative to support a Brady claim. See Wood v. Bartholomew, 516

14   U.S. 1, 6 (1995) (reversing Ninth Circuit’s grant of habeas relief on Brady grounds “based on mere

15   speculation” that suppressed polygraph results “might have led respondent’s counsel to conduct

16   additional discovery that might have led to some additional evidence that could have been

17   utilized”).

18                                             *       *       *

19           We have considered Ervine’s remaining arguments and find them to be without merit. For

20   the foregoing reasons, the judgment of the district court is AFFIRMED.

21
22                                                  FOR THE COURT:
23                                                  Catherine O’Hagan Wolfe, Clerk of Court

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