Popal v. Queens County District Attorney's Office

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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FARID POPAL,

Plaintiff, MEMORANDUM & ORDER

23-CV-2933(KAM)(PK)

-against-

QUEENS COUNTY DISTRICT ATTORNEY’S

OFFICE and THE DISTRICT ATTORNEY, in

his official capacity,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Farid Popal, pro se, currently incarcerated at

Wallkill Correctional Facility, brought this action against the

Queens County District Attorney’s Office and the District Attorney

pursuant to 42 U.S.C. § 1983. Plaintiff filed a First and a Second

Amended Complaint without leave of court on July 17, 2023, and

February 23, 2024, respectively. Plaintiff’s request to proceed

in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. For

the reasons discussed below, the Second Amended Complaint is

dismissed.

BACKGROUND

On April 4, 2006, following a jury trial, Plaintiff was

convicted of one count of second-degree murder, two counts of

tampering with physical evidence, and one count of conspiracy in

the fifth degree. Popal v. Superintendent, Wende Corr. Facility,

No. 15-CV-1167 (JG), 2015 WL 5316301, at *1 (E.D.N.Y. Sept. 11,

2015)1. Plaintiff was found guilty of the November 12, 1999,

murder of Samiya Haqiqi (“Haqiqi”). Id. On May 9, 2006, Popal

was sentenced to an indeterminate prison term of twenty-five years

to life on the murder count, one and one-third to four years on

each tampering count, and one year on the conspiracy count. Id.

The latter three sentences were imposed concurrently with each

other but consecutive to the sentence on the murder count. Id.

Plaintiff is currently incarcerated pursuant to this conviction.

(ECF No. 13, Second Amended Complaint (“SAC”), at ¶3.)

Plaintiff brought this action on April 17, 2023, in connection

with the above-referenced 2006 conviction, alleging violations of

his constitutional rights under the 5th, 6th, 8th, and 14th Amendments

by the Queens County District Attorney’s Office. (ECF No. 1,

Complaint.) Plaintiff subsequently filed an Amended Complaint2

1 Plaintiff directs the Court to “his record in both the federal and State

Court” including Judge Gleeson’s decision denying habeas corpus relief under 28

U.S.C. § 2254 in Popal v. Superintendent, Wende Corr. Facility, for the “full

and detailed explanation of each issue” in his case. (SAC at ¶8.) The Court

references Judge Gleeson’s decision for background information on the

circumstances surrounding Plaintiff’s underlying conviction.

2 The original Complaint included voluminous exhibits, labeled A-K, while the

Amended Complaint included the same Exhibits D, G, H, and I, and also included

exhibits labeled M-R. The Second Amended Complaint included Exhibits D, G, H,

I, M, N, O, P, Q, R, 1, and 2, and plaintiff requested that the Court consider

the additional Exhibits attached to the original complaint. (ECF No. 13, SAC,

at ¶9.) Although an amended complaint completely replaces prior pleadings,

the Court has reviewed and considered the exhibits included in all of the

pleadings.

that was received by the Court on July 17, 2023. (See generally

ECF No. 7, First Amended Complaint (“FAC”).) Plaintiff filed a

further “addendum” on February 5, 2024, alleging additional

constitutional violations along with arguments that his rights

were violated based on his counsel’s constitutionally ineffective

performance. (ECF No. 12, Addendum.) On February 23, 2024,

Plaintiff filed a Second Amended Complaint. (See generally SAC.)

Plaintiff has previously launched multiple challenges to his

conviction, including direct appeal and post-conviction motions in

state court, a petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 in this Court, and a prior civil action in this

Court. See People v. Popal, 879 N.Y.S.2d 185 (2d Dep’t 2009)

(appeal dismissed), leave to appeal denied, 914 N.E.2d 1020 (N.Y.

2009), cert. denied, Popal v. New York, 559 U.S. 909 (2010),

rehearing denied, 559 U.S. 1046 (2010); People v. Popal, 986

N.Y.S.2d 341 (2d Dep’t 2014) (appeal of denial of post-conviction

relief pursuant to C.P.L. § 440.30), leave to appeal denied, 18

N.E.3d 1146 (N.Y. 2014); People v. Popal, Ind. No. 2186/02

(subsequent § 440.10 and § 660.10 motions denied); Popal v.

Superintendent, Wende Corr. Facility, No. 15-CV-1167 (JG), 2015 WL

5316301 (E.D.N.Y. Sept. 11, 2015) (habeas petition dismissed);

Popal v. Brown, No. 19-CV-832 (KAM), 2019 WL 11624209, at *6

(E.D.N.Y. June 13, 2019) (dismissing Plaintiff’s civil rights

claims related to a post-conviction proceeding), appeal dismissed,

No. 19-1869, 2020 WL 8184866 (2d Cir. Jan. 15, 2020), cert. denied,

140 S. Ct. 2793 (Mem) (2020).

The instant SAC renews Plaintiff’s claim that the prosecution

by the Queens County District Attorney’s Office violated his

constitutional rights and seeks declaratory and injunctive relief.

Plaintiff claims that a “News Article” published in the Hartford

Courant on November 19, 1999, six days after Haqiqi’s

disappearance, constitutes newly-discovered evidence, namely that

two individuals made statements about a necklace found in Haqiqi’s

car. (SAC at ¶¶10-15; Exhibit H to SAC (ECF p. 53).) Plaintiff

asserts that these statements were exculpatory, because they

contradicted testimony that was presented at trial, and that they

should have been provided as part of the Brady material. (SAC at

¶¶13-14, 38, 40, 62-67.) Plaintiff states that his family learned

about the Hartford Courant piece in or around November 2020. (SAC

at ¶19.) Thereafter, Plaintiff represents that he asked a private

investigator to investigate that information, but that the

relationship broke down and Plaintiff sued the investigator in

state court. (SAC at ¶¶21-22.)

Plaintiff also challenges other evidence that was presented

against him at trial as “worse than guess work and conjecture.”

(SAC at ¶84.) He challenges the credibility of two witnesses who

testified about the actions of Popal and his brother around the

time of Haqiqi’s disappearance. (SAC at ¶¶86-94.) He reiterates

claims he made in the past about alleged misconduct of the trial

prosecutor, before, during, and after the trial. (SAC at ¶¶95-

114.)

Plaintiff’s Second Amended Complaint asserts additional

claims about (1) the prosecutor’s conduct – conduct that Plaintiff

now claims prevented him from arguing that two other individuals

could have had a motive for the murder and that Plaintiff did not

have a motive (SAC at ¶¶67-82); and (2) the alleged ineffectiveness

of his trial counsel (SAC at ¶83.)

In his Prayer for Relief, Plaintiff asks for declaratory

relief regarding violations of his 5th, 6th, 8th, and 14th Amendment

rights, as well as “[a]ny additional relief this Court deems just,

proper, and equitable.” (SAC at ¶¶115-17.)

STANDARD OF REVIEW

A complaint must plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.”

Matson v. Bd. of Educ. of City Sch. Dist. of New York, 631 F.3d

57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). Although all allegations contained in the complaint

are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Iqbal, 556 U.S. at 678. In reviewing a pro se

complaint, the court must be mindful that a plaintiff’s pleadings

should be held “to less stringent standards than formal pleadings

drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976));

see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that

even after Twombly, the court “remain[s] obligated to construe a

pro se complaint liberally”).

Notwithstanding the above, under 28 U.S.C. § 1915(e)(2)(B),

a district court shall dismiss an in forma pauperis action where

the reviewing court is satisfied that the action “(i) is frivolous

or malicious; (ii) fails to state a claim on which relief may be

granted; or (iii) seeks monetary relief against a defendant who is

immune from such relief.” Under 28 U.S.C. § 1915A, a district

court “shall review, before docketing, if feasible or, in any

event, as soon as practicable after docketing, a complaint in a

civil action in which a prisoner seeks redress from a governmental

entity or officer or employee of a governmental entity.” 28 U.S.C.

§ 1915A(a).

DISCUSSION

Plaintiff’s claims are barred by the favorable termination

rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994) and its

progeny, which mandate that “a state prisoner’s § 1983 action is

barred (absent prior invalidation)—no matter the relief sought

(damages or equitable relief), no matter the target of the

prisoner’s suit (state conduct leading to conviction or internal

prison proceedings)—if success in that action would necessarily

demonstrate the invalidity of confinement or its duration.”

Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Where a prisoner

seeks to challenge his conviction or custody as violating his civil

rights, he must rely on habeas corpus and not on a civil rights

action pursuant to 42 U.S.C. § 1983. See Preiser v. Rodriguez,

411 U.S. 475, 488-90 (1973) (“[H]abeas corpus is the appropriate

remedy for state prisoners attacking the validity of the fact or

length of their confinement, and that specific determination must

override the general terms of § 1983.”). In this case, Plaintiff

is directly challenging his confinement pursuant to his

conviction, a conviction that has not previously been invalidated,

as discussed supra. Accordingly, the favorable termination rule

bars his claims.

Plaintiff has already sought habeas relief. To the extent

that he believes he has newly discovered evidence that would meet

the standard for bringing a second or successive habeas corpus

application pursuant to 28 U.S.C. § 2244(b)(2)(B), he must move in

the Second Circuit for authorization to file a successive

application, pursuant to 28 U.S.C. § 2244(b)(3)(A). See Torres v.

Senkowski, 316 F.3d 147, 151 (2d Cir. 2003) (The Antiterrorism and

Effective Death Penalty Act of 1996 “allocates jurisdiction to the

courts of appeals, not the district courts, to authorize successive

habeas motions or applications,” citing 28 U.S.C. §

2244(b)(3)(A).). The Court further notes that Plaintiff’s claims

of ineffective assistance of counsel made in his addendum and the

SAC would be appropriately raised in a habeas petition, as opposed

to the instant complaint alleging violations of his Constitutional

rights by the Queens County District Attorney’s Office. Whether

such claims would meet the standard for a second or successive

habeas petition is a decision reserved to the Second Circuit. See

Torres, 316 F.3d at 151.

Finally, the Court notes that even if Plaintiff’s claims were

not barred by the favorable termination rule, the Court would

likely be required to dismiss his claims against the Queens County

District Attorney’s Office and the District Attorney. Prosecutors

are immune from civil suits for damages for acts committed within

the scope of their prosecutorial duties where the challenged

activities are not investigative in nature but are instead

“‘intimately associated with the judicial phase of the criminal

process.’” Giraldo v. Kessler, 694 F.3d 161, 165 (2d Cir. 2012)

(quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); see also

Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (absolute immunity

is analyzed under a “functional approach” that “looks to the nature

of the function performed, not the identity of the actor who

performed it” (internal quotation marks and citations omitted));

Tigano v. U.S., 527 F. Supp. 3d 232, 243 (E.D.N.Y. 2021). Here,

Plaintiff's claims against the Queens County District Attorney’s

Office and the District Attorney are based on their actions within

the scope of their prosecutorial duties and associated with the

conduct of the criminal proceeding they prosecuted against

Plaintiff. Thus, even if Plaintiff’s claims were not barred by

the favorable termination rule, he would fail to state a claim on

which relief may be granted. 28 U.S.C. § 1915(e)(2)(B).

CONCLUSION

Plaintiff’s motion to proceed in forma pauperis is granted

solely for purposes of this Order. For the foregoing reasons, all

of his claims are dismissed pursuant to 28 U.S.C. § 1915A(b) and

28 U.S.C. § 1915(e) (2) (B). The dismissal is without prejudice to

Plaintiff seeking authorization in the United States Court of

Appeals for the Second Circuit for permission to file a successive

habeas petition pursuant to 28 U.S.C. § 2244 (b).

The Court certifies pursuant to 28 U.S.C. § 1915(a) (3) that

any appeal would not be taken in good faith, and therefore in forma

pauperis status is denied for purpose of an appeal. See Coppedge

v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court

is respectfully directed to enter judgment, close this case, and

to mail a copy of this Order and the judgment to Plaintiff and

note service on the docket by February 28, 2024.

SO ORDERED

merece ec wee nore

ee tare

HON. KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York

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