Hyman v. Brown

16‐2723‐pr

Hyman v. Brown

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2017

No. 16‐2723‐pr

TULLIE HYMAN,

Petitioner‐Appellee,

v.

WILLIAM D. BROWN, Superintendent,

Respondent‐Appellant,

On Appeal from the United States District Court

for the Eastern District of New York

ARGUED: NOVEMBER 29, 2017

DECIDED: JUNE 24, 2019

Before: JACOBS, RAGGI, and DRONEY, Circuit Judges.

________________

On appeal from a judgment of the United States District Court

for the Eastern District of New York (Dearie, J.) granting habeas

corpus relief from a state murder conviction, see 28 U.S.C. § 2254,

respondent challenges the district court’s determinations that (1)

petitioner made the gateway showing of actual innocence necessary

for merits review of his procedurally barred claim of ineffective

assistance of counsel, and (2) the state court’s rejection of that Sixth

Amendment claim was an unreasonable application of clearly

established Supreme Court precedent. For reasons stated herein, we

reject the gateway determination and, therefore, dismiss without

addressing the barred Sixth Amendment claim.

Judgment REVERSED and Petition DISMISSED.

Judge Jacobs concurs in a separate opinion.

RANJANA C. PIPLANI, Assistant District

Attorney (John M. Castellano, Assistant

District Attorney, on the brief), Kew Gardens,

New York, for Richard A. Brown, District

Attorney, Queens County, for Respondent‐

Appellant.

GLENN A. GARBER (Rebecca E. Freedman, on

the brief), The Exoneration Initiative, New

York, New York, for Petitioner‐Appellee.

REENA RAGGI, Circuit Judge:

Respondent William Brown appeals from a judgment entered

on July 13, 2016, in the United States District Court for the Eastern

District of New York (Raymond J. Dearie, Judge), which, pursuant to

28 U.S.C. § 2254, grants petitioner Tullie Hyman relief from a New

York State judgment convicting him of, among other crimes, the

second‐degree depraved indifference murder of Maria Medina, the

innocent victim of a gunfight bullet gone astray. See Hyman v. Brown,

197 F. Supp. 3d 413 (E.D.N.Y. 2016). The district court concluded that

2

Hyman’s conviction had been obtained in violation of the Sixth

Amendment right to effective assistance of counsel because, as the

result of a conflict of interest grounded in a fee dispute with a private

investigator, counsel failed to call the investigator as a witness at

Hyman’s trial, where he could have offered evidence to impeach the

prosecution’s lead identification witness. See id. at 464–66.

When Hyman earlier presented this constitutional claim in a

collateral state challenge to conviction, a New York court rejected it

on a state procedural ground, as well as on the merits. See People v.

Hyman, No. 1787/00 (Sup. Ct. Queens Cty. Aug. 4, 2009) (reproduced

in App’x 3285–95). The independent procedural ruling erected a bar

to federal habeas review that Hyman concedes he cannot overcome

by showing good cause to excuse his procedural failure and ensuing

prejudice. See House v. Bell, 547 U.S. 518, 536 (2006) (collecting cases

discussing “cause and prejudice” exception to procedural bar).

Nevertheless, the law affords another narrow “gateway” to merits

review of defaulted claims for habeas petitioners who can make

credible and compelling showings of actual innocence. Id. at 538. The

district court found that Hyman satisfied this demanding standard

and, thus, reached the merits of his Sixth Amendment claim. See

Hyman v. Brown, 197 F. Supp. 3d at 463. Respondent here challenges

both this gateway finding and the district court’s identification of

Sixth Amendment error.

On de novo review of petitioner’s actual innocence claim, see

Rivas v. Fischer, 687 F.3d 514, 543 (2d Cir. 2012) (stating that actual

innocence determination presents “mixed question of law and fact”

reviewed de novo), we conclude that Hyman has not carried his

gateway burden. Accordingly, we vacate the challenged judgment

and order Hyman’s habeas petition dismissed.

3

BACKGROUND

In reviewing a gateway claim of actual innocence, a court

“must consider all [record] evidence, old and new, incriminating and

exculpatory, without regard to whether it would necessarily be

admitted under rules of admissibility that would govern at trial.”

House v. Bell, 547 U.S. at 538 (internal quotation marks omitted). Our

background discussion is, therefore, necessarily lengthy.

I. Overview

On the evening of March 10, 2000, Maria Medina was

performing volunteer “tenant patrol” duty in the lobby of 1540

Hassock Street, the Queens apartment building where she resided

within the Redfern public housing project.1 At approximately 7:00

p.m., a shootout erupted in the street in front of that building (“March

10 shootout”). Within minutes, more than thirty bullets were fired

from at least four different weapons. One of these bullets entered the

lobby and killed Ms. Medina.

New York State charged four persons with crimes relating to

the March 10 shootout: Jonathan Whitmore and Derek Harris, who

were thought to have been shooting from the fence and walkway

adjoining 1540 Hassock Street toward the street; and Osimba Rabsatt

and petitioner Tullie Hyman, who were thought to have been

shooting from the street toward the building. Only Rabsatt and

Hyman stood trial. Whitmore and Harris each pleaded guilty to

1 Tenant patrol is a program whereby residents of public housing volunteer to provide

services, such as signing in visitors, to enhance the security of their homes. See Trial Tr. at

779–80; see also Engagement, N.Y.C. PUB. HOUS. AUTH., https://www1.nyc.gov/site/ny‐

cha/residents/getting‐involved‐as‐a‐resident.page (last visited June 21, 2019).

4

criminal possession of a weapon and were sentenced to respective

prison terms of seven years and two years.

At the Rabsatt‐Hyman trial, the prosecution’s theory was that,

on the night of March 10, these two men drove to 1540 Hassock Street

in a red Acura (Rabsatt) and a green Mazda (Hyman), double‐parked

the cars across from 1540 Hassock Street—with their passenger sides

toward the middle of the street and facing 1540—and proceeded to

engage in a gunfight with Whitmore and Harris. Rabsatt successfully

challenged this theory by offering alibi evidence placing him

elsewhere at the time of the gunfight. The jury acquitted him on all

counts. Not so Hyman, who did not dispute being at the shootout in

a green Mazda, but who maintained that he was an unarmed victim

of, rather than a participant in, the gunfight. Finding otherwise, the

jury returned a guilty verdict against Hyman for second‐degree

depraved indifference murder, see N.Y. Penal Law § 125.25(2);

criminal possession of a weapon in both the second and third degrees,

see id. §§ 265.03(1), (2); and first‐degree reckless endangerment, see id.

§ 120.25.2 Sentenced to a total prison term of 21 years to life for these

crimes,3 Hyman began serving his sentence in June 2002, and

remained incarcerated until October 2016, when he was released

pursuant to the July 2016 habeas judgment granting such relief unless

the state took substantial steps to retry Hyman within 90 days. Failing

to procure a stay of that order, the state released Hyman and timely

appealed.

2 The jury acquitted Hyman on one count: the second‐degree attempted murder of

Jonathan Whitmore. See N.Y. Penal Law §§ 110.00, 125.25.

3 The state court sentenced Hyman to concurrent prison terms of 21 years to life for second‐

degree depraved indifference murder, 15 years for criminal possession of a weapon in the

second degree, seven years for criminal possession of a weapon in the third degree, and

two to six years for reckless endangerment.

5

II. State Proceedings

A. Trial

1. Trial Evidence

To secure Hyman’s conviction, the state offered evidence

generally falling into three categories: (1) Hyman’s own statements to

the authorities, (2) eyewitness accounts of the shootout, and (3)

forensic evidence of the crime scene. Hyman offered no evidence in

defense.

Hyman’s Statements

i. March 11, 2000

On March 11, 2000, upon learning that police were looking for

him in connection with the prior night’s shootout, Hyman voluntarily

surrendered himself at the 113th precinct in Queens, New York.

Waiving his Miranda rights, Hyman admitted being present during

the shootout, but denied firing a weapon. To the contrary, he

reported being unarmed when he went to 1540 Hassock Street to pick

up his girlfriend, Shakina Harris4 and, there, was ambushed by men

shooting at him. Hyman then gave police a sworn statement, which

a detective read to the jury as follows:

On Friday [i.e., March 10, 2000] when I [i.e., Hyman] came

home from court Shakina called me and we were going

to meet later 8:00 or 9:00. I would pick her up at her

building, the last one. I drove down the street, the one

way and pulled up behind a white civic. I put [on] my

hazard indicators, took the car out of gear, put it in

neutral and pulled the emergency brake up.

4 Shakina Harris is the sister of Derek Harris, one of the charged shooters in the case.

6

I looked over by the stores and the building. No one was

there. Dark station wagon was backing across from me.

Then I heard three or four shots. I looked in my door

mirror and saw two guys coming up behind me from the

sidewalk firing. I got low in the car. I tried to put the car

in gear but it stalled out. I got it back on. I saw two guys

get out of the wagon and they were firing in my angle. I

got the car in reverse and went around the civic. I made

a left at the light and went to my brother’s house and told

him what happened. Grabbed some clothes. Called my

girlfriend and left.

Trial Tr. at 1388–89.

ii. March 12, 2000

The following day, Hyman again waived his Miranda rights

and told police that he had driven to 1540 Hassock Street on March

10 in a red Acura. After Hyman stopped the car, two men emerged

from the car parked behind his and began shooting at him. Other

persons also fired at Hyman from the side of his car before he fled the

scene.

Approximately two hours later, and after Hyman spoke with

his mother, he revised his account, telling police that he had not

driven to Hassock Street in a red Acura, although he had driven such

a car in the recent past. Rather, he had driven to Hassock Street in a

green Mazda that he “just recently bought.” Id. at 870.5

5Police recovered the green Mazda from Hyman’s aunt’s garage. They elsewhere located

a red Acura linked to Hyman by papers found therein, specifically, a benefits card and a

court summons in his name.

7

iii. June 8, 2000

On June 8, 2000, Hyman testified before a grand jury,

maintaining that he went to 1540 Hassock Street on March 10 to pick

up his girlfriend; that he was unarmed; that after he parked, he “heard

multiple shots coming from the back of [his] car,” id. at 1725; that four

people fired at him, “two from the left side and two from the right

side,” id. at 1731; and that, in the course of the shooting, the glass from

the “passenger side window” of his car “popped in [his] face,” id. at

1734. Hyman also testified that he had driven to Hassock Street by

himself in a green Mazda MX6, not in a red Acura. He acknowledged

that, before acquiring the green Mazda, he had driven a red Acura,

but he said that car was not at the shootout scene. Hyman also denied

knowing Jonathan Whitmore, threatening him, or recognizing him at

the shootout scene.

Eyewitness Testimony

While Hyman’s own statements thus established his presence

at the March 10 shootout as the sole occupant of a green Mazda, the

state relied on four eyewitnesses—Margaret Contreras, Lynn Burton,

Deborah McCoy, and Shaquana Ellis—to establish that Hyman was

not an unarmed ambush victim but a shooting participant in the

gunfire exchange. Each woman testified to seeing gunshots fired

from, or by the occupant of, the green Mazda, but only Ellis would

specifically identify Hyman as that shooter. Her recantation of that

identification is the basis for Hyman’s actual innocence claim.

i. Margaret Contreras

Margaret Contreras testified that she was on tenant patrol with

Maria Medina and Shereda Freeman on March 10, 2000, when she

8

heard several gunshots, one of which struck Medina.6 As she and

Freeman pulled the injured Medina toward the elevator, Contreras

saw, through the lobby door, a “dark greenish” car parked in the

street. Id. at 1038. The car’s window was down, and Contreras there

saw “something silverish” that “looked like a gun but it was like a

flash.” Id. Contreras acknowledged that she did not mention the car

or any gunfire flash in her initial police interview, explaining that

“[n]o one ever asked” about “what happened outside of the

building.” Id. at 1096. She explained that she disclosed these facts

when prosecutors showed her a photograph of a car—Hyman’s green

Mazda—and asked if she had ever seen it. She told them it looked

like the car outside her building on March 10 and then recounted

what she had seen. Contreras testified that things were happening

“really fast” on the night of the shootout, id. at 1040, and that her focus

was on getting Medina to safety rather than on trying to “see

something” outside, id. at 1049. Nevertheless, she did not waver in

her testimony to seeing a flash of gunfire coming from the window of

the dark green car parked outside her building on March 10.

Although Contreras had never told prosecutors that she could

identify anyone involved in the shootout, on cross‐examination she

stated for the first time that, on the evening of March 10, she had seen

Whitmore, her neighbor, enter 1540 Hassock Street carrying a gun.

Later that night, Whitmore knocked on Contreras’s door and told her

that he was “very sorry about all this stuff that happened.” Id. at 1084.

Contreras stated that she had not previously told anyone about seeing

Whitmore because she was worried for her 16‐year‐old son.

6Shereda Freeman would also testify at trial, but only to her efforts to assist Maria Medina.

She offered no evidence about the shootout.

9

Contreras was, in fact, moved out of her building soon after the March

10 shootout.

ii. Lynn Burton

Lynn Burton testified that she was in the bedroom of her third‐

floor apartment at 1540 Hassock Street when she heard gunfire erupt

on the evening of March 10. From a window of her apartment facing

the street, Burton saw three cars double‐parked in front of the

Friendly market across the street: “a green jeep, a red color car with

dark tinted windows,” and “behind that . . . a dark colored car.” Id.

at 1594. Burton initially told police the last car was a black or dark

Altima, but, subsequently, and at trial, she identified the “dark

colored car” as Hyman’s green Mazda.7 Burton testified that she saw

“shots being fired” from “the red vehicle and the dark colored vehicle

that was behind the red vehicle,” but that she did not see who fired

them. Id. at 1594–95. What she saw “was some fire coming out of a

window.” Id. at 1628. Burton did not see anyone standing near or

leaning out of the cars. Nor did she see Whitmore, whom she knew

well because his mother lived at 1540 Hassock Street.

iii. Deborah McCoy

Deborah McCoy resided in a building across from 1540

Hassock Street. She testified that after hearing gunshots on the

evening of March 10, she ran to the kitchen window of her seventh‐

floor apartment, from where she saw a red Acura parked in front of

what she initially described as a “black” car, but which she

subsequently stated looked like Hyman’s dark green Mazda as

7 Specifically, Burton was shown two photographs in evidence of the green Mazda that

Hyman admitted to driving to 1540 Hassock Street on March 10 and that police recovered

from his aunt’s garage. Burton testified that it looked like the car from which she had seen

shots fired on March 10.

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depicted in police photographs. Id. at 1783. McCoy testified that

shots “first came from the cars.” Id. at 1813. She identified one

shooter, standing near the driver’s side of the red car, as Osimba

Rabsatt, whom McCoy knew from high school. She saw another

man—whom she could not identify—get out of the dark car, fire a

gun, and then get back into the car. McCoy testified that she also saw

Whitmore and Harris shooting toward the cars as they ran along a

walkway toward the entry of 1540 Hassock Street. McCoy knew

Whitmore because she is his sister’s godmother and Whitmore’s

mother is godmother to McCoy’s son. McCoy telephoned 911 to

report the shootout, but did not then mention any participants by

name.8

iv. Shaquana Ellis

Shaquana Ellis testified that, at the time of the March 10

shootout, she was standing in the third‐floor hallway of 1540 Hassock

Street with two friends, Amanda Benitez and Shaquana Delain.

Through a hallway window, Ellis saw two cars pull up to the

building: a red Acura with tinted windows and a green Mazda. After

the cars “sat there” for a while, Ellis saw “Tullie,” i.e., Hyman,

“hanging out the . . . window, from the passenger side” of the green

car, “just fir[ing] off” gunshots. Id. at 1550–51. Ellis testified that she

never actually saw a gun; rather, she saw about five flashes of light,

which looked like “fire, like red come out of the gun,” coming from

Hyman’s direction. Id. at 1553. Ellis stated that she did not see

Whitmore, Harris, or anyone else at the shootout scene.

8The jury heard that nine 911 calls reported the shootout. Five calls did so generally. One

caller reported a man with a gun in front of the building. Two callers (one of whom placed

two calls) identified Whitmore as a shootout participant.

11

Ellis admitted not reporting these events to the police when

first interviewed. At that time, she told authorities she had not seen

the shooting at all. Ellis, nevertheless, denied telling friends or a

private investigator that she had not seen the shootout. She also

denied that Whitmore had paid her to incriminate Hyman, although

she acknowledged that Whitmore had corresponded with her from

prison.

Forensic Evidence

Within twenty minutes of the March 10 shootout, police had

secured the area in front of 1540 Hassock Street and started to collect

evidence. Much of the ballistic evidence gathered indicated that

bullets were fired not only at, but also from, Hyman’s green Mazda.

The recovery of four discharged .45 caliber shell casings and

fourteen discharged 9mm shell casings from the middle of Hassock

Street indicated gunshots fired in that vicinity, which was consistent

with the location of cars double‐parked there on March 10, including

Hyman’s green Mazda. Meanwhile, twelve discharged .380 caliber

shell casings were recovered from the fence and walkway bordering

the front of 1540 Hassock Street. This corresponded to Deborah

McCoy’s account of Whitmore and Harris firing gunshots at the

parked cars as the two men ran toward the building.

Police matched most of these shell casings to firearms

recovered at the scene. Specifically, six of the twelve .380 caliber shell

casings—i.e., casings for bullets fired from 1540 Hassock Street—were

matched to a .380 caliber handgun found on the rear lawn of the

building. Whitmore would later admit firing that gun during the

March 10 shootout. The other six .380 caliber casings went

unmatched. Meanwhile, all recovered .45 caliber and 9mm casings—

12

i.e., casings for bullets fired from the vicinity of the double‐parked

cars—were matched to a .45 caliber handgun and an Intratech 9mm

semiautomatic pistol found inside the spare tire wheel well of

Whitmore’s Ford Taurus.9 At trial, the prosecution took the position

that the bullet that killed Ms. Medina came from one of these two

guns, which had been fired toward 1540 Hassock Street by Hyman

and Rabsatt.10 To explain how guns fired by Hyman and Rabsatt

wound up in Whitmore’s car, the prosecution suggested that

someone might have planted them there to divert attention from

Hyman and Rabsatt. Finally, no ballistic evidence was matched to

another 9mm handgun, found broken into eight parts in a trash

compactor inside 1540 Hassock Street.

Police further discovered that bullets had penetrated the door

and rear lobby of 1540 Hassock Street. The height of some bullet

holes—1’10” and 1’5.75” above ground level—was consistent with

shots being fired toward the building from the window level of a car

in the street. Bullet marks were also found in a second‐floor

apartment of 1540 Hassock Street, the Friendly market across the

street, and three parked cars.

Meanwhile, when police subsequently recovered Hyman’s

green Mazda, they saw bullet damage concentrated on the vehicle’s

front hood, front passenger door, and right rear bumper, which was

consistent with bullets fired from the direction of 1540 Hassock Street.

There was no bullet damage to the car’s rear area or to its left side,

9Police had secured that car in the vicinity of 1540 Hassock Street on March 10, but did not

search it until a few weeks later.

10 Apparently, the state did not test the bullet killing Ms. Medina to confirm this theory.

13

although Hyman had claimed that assailants had fired at him from

the rear and from both sides of the vehicle.

Forensic examination also determined that the Mazda’s front

passenger window was open during the shootout—as some

eyewitnesses had reported—because the shattered window was

inside the door’s window track and there was a bullet hole in the door

below the track.

B. Conviction and Direct Appeal

After the jury found Hyman guilty, and the case proceeded to

sentencing, Hyman’s counsel advised the court that a defense private

investigator, Kevin Hinkson, had procured a statement from Amanda

Benitez that impeached Shaquana Ellis’s trial testimony about

witnessing the March 10 shootout. Construing the disclosure as a

request for adjournment of sentence in anticipation of a formal

motion to vacate the verdict as required by N.Y. Crim. Proc. Law

§ 330.30, the trial court declined to grant such relief in light of two

prior adjournments of sentence. Thus, on May 15, 2002, it sentenced

Hyman to a total of 21‐years‐to‐life imprisonment.

Hyman unsuccessfully appealed his conviction, first to the

Appellate Division, which unanimously affirmed, see People v. Hyman,

15 A.D.3d 417, 788 N.Y.S.2d 863 (2d Dep’t 2005), and then to the New

York Court of Appeals, which denied review, see People v. Hyman, 4

N.Y.3d 854 (2005).

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C. Collateral Challenges to Conviction

1. First § 440 Motion

On April 28, 2005, Hyman moved for collateral relief pursuant

to N.Y. Crim. Proc. Law § 440, seeking DNA testing of the 9mm

handgun recovered from Whitmore’s car. The state court denied the

motion, concluding that Hyman failed to show that DNA testing

would have resulted in a favorable verdict. See People v. Hyman, 51

A.D.3d 689, 863 N.Y.S.2d 240 (2d Dep’t 2008), denying leave to appeal,

10 N.Y.3d 960 (2008).

2. Second § 440 Motion

On July 7, 2008, Hyman filed a second § 440 motion based on

(1) newly discovered evidence, specifically, Ellis’s recantation of her

trial testimony; and (2) ineffective assistance of counsel in failing to

call investigator Hinkson as a trial witness to impeach Ellis. Various

affidavits were offered to support the motion.

a. Kevin Hinkson

Investigator Hinkson stated that, in anticipation of Hyman’s

trial, he had inspected the third‐floor hallway at 1540 Hassock Street

and determined that it would have been “impossible” for Ellis “to

observe the events of the shooting” from windows therein. Second

440, Exh. Q. Hinkson reported providing defense counsel with

photographs and a video recording of the hallway supporting this

opinion.11 Also prior to trial, Hinkson provided counsel with an

unsigned statement from Amanda Benitez in which she admitted

11Only photocopies of Hinkson’s photographs were attached to his § 440 affidavit, the

original photos and videotape having been lost. Although the copies are dark, they appear

to show that the street area where the shootout occurred could be seen from the third‐floor

hallway window.

15

that, contrary to what she had told police and to what Ellis had

testified at trial, Benitez and Ellis had not been at a third‐floor

window of 1540 Hassock Street at the time of the March 10 shootout.

Hinkson stated that trial counsel never discussed any of this

evidence with him and never sought his testimony at Hyman’s trial.

Hinkson further stated that he has never been paid for his services on

Hyman’s case. While trial counsel told him that Hyman’s family

would pay Hinkson directly, Hyman’s father told Hinkson that he

had given counsel $2,500 to pay the investigator.12

b. Amanda Benitez

On March 21, 2002—approximately a week after the jury found

Hyman guilty—Benitez swore to the statement she had earlier given

Hinkson, and Hyman offered that sworn statement in support of his

second § 440 motion. Therein, Benitez admitted that she had not seen

the March 10 shootout from the third‐floor hallway window of 1540

Hassock Street. She stated that she arrived at the building only after

police were already at the scene. Benitez then went to “Donald’s”

third‐floor apartment, where Shaquana Ellis, Shaquana Delain, and

others had already gathered. Second 440, Exh. J. They stayed in the

apartment “all night because the police would not let us out.” Id.

When police came to speak with them the next morning,

Shaquana Ellis pulled me [i.e., Benitez] aside and told me

to lie to the police and tell them I saw what happened.

Shaquana told me a story to tell the police about my

seeing Tully [Hyman] shooting a gun at Jonathan

[Whitmore]. Shaquana Ellis was a friend of Jonathan

12In a sworn affidavit, Hyman’s father, James Sanders, stated that he was “positive” he

had given trial counsel $2,500 to pay for a private investigator, although trial counsel

claimed never to have received that money. Second 440, Exh. P.

16

Whitmore and Jonathan’s friends. I never did see Tully

that night because I was not there when everything

happened. . . . I told the police I was not there when it

happened and that I did not know anything. The police

kept telling me that I did see what happened and if I did

not tell them, I would be arrested. . . . I told them the story

Shaquana had told me to say and they wrote it down.

Id.

c. Stacey Manning

In another affidavit, Ellis’s friend, Stacey Manning, recounted

that, in the summer of 2002, Ellis told Manning that “she [i.e., Ellis]

didn’t see who was shooting” during the March 10 gunfight, but she

falsely testified in order “to help her cousin’s baby’s father, a guy

named Jonathan Whitmore.” Second 440, Exh. T. Manning said Ellis

professed fear that authorities “w[ould] lock her up” if she now said

that she had lied. Id.

d. Irwin Blye

Irwin Blye, a private investigator retained in connection with

Hyman’s § 440 motion, submitted an affidavit stating that, on

September 7, 2005, he conducted an audiotaped interview with

Shaquana Ellis who admitted that she had not seen the March 10

shootout. Ellis said she was inside an apartment when she heard—

but did not see—the shooting occur. Ellis stated that she testified to

seeing Hyman firing a gun because she had been threatened by

“people from the neighborhood.” Second 440, Exh. U. She said that

someone called her home, told her what had happened, and what she

should tell police. See Hyman v. Brown, 197 F. Supp. 3d at 439. Ellis

told Blye that she had admitted not seeing the shootout to Amanda

17

Benitez.13 She did not withdraw her statement to the police for fear

of prosecution, but she felt “‘real bad’ because Mr. Hyman does not

deserve to be in jail.” Second 440, Exh. U.

e. Robert DiDio

Hyman’s § 440 counsel, Robert DiDio, filed an affirmation

stating that Ellis had confirmed to him what she had told Blye, i.e.,

that she had not witnessed the March 10 shootout. Ellis refused,

however, to sign an affidavit to that effect and was evading a private

detective trying to locate her.

f. Ruling

The state court denied Hyman’s second § 440 motion, rejecting

his newly discovered evidence claim on the ground that Ellis had not

provided a sworn recantation of her trial testimony as required by

N.Y. Crim. Proc. Law § 440.30(1)(a). The court declined to pursue the

matter at a hearing because Ellis then resided outside the court’s

jurisdiction and, thus, could not be compelled to appear. As for

Hyman’s ineffective assistance claim, the court concluded that

Hyman had defaulted the point by not raising it on direct appeal

despite a record basis to do so. See id. § 440.10(2)(c). In any event,

the court rejected the claim on the merits, finding that Hinkson’s

affidavit did not convincingly establish that he had viewed the correct

13Ellis’s claim that it was in a threatening phone call to her home that she was told what to

tell police is at odds with Benitez’s claim that Ellis told her falsely to report seeing the

shooting on the morning of March 11 before these women had been able to leave 1540

Hassock Street. See supra at 16. Ellis’s claim that she lied because she was threatened is

also at odds with Manning’s report that Ellis told her she did so because Whitmore was

the father of her cousin’s baby. See supra at 17.

18

locations in challenging Ellis’s viewpoint, and that counsel’s decision

to forgo Hinkson’s testimony may have been strategic in any event.

3. Coram Nobis Motion

Hyman thereafter moved for coram nobis relief, claiming the

ineffective assistance of appellate counsel. The state court rejected the

claim on the merits. See People v. Hyman, 73 A.D.3d 1211, 900 N.Y.S.2d

918 (2d Dep’t 2010), denying leave to appeal, 15 N.Y.3d 806 (2010).

III. Federal Habeas Proceeding

On August 26, 2010, Hyman filed the instant § 2254 petition pro

se, raising eight grounds for vacating his state conviction. The district

court appointed counsel, who pursued only two claims: the

ineffectiveness of trial counsel and actual innocence. Counsel

maintained that Hyman’s conviction had been obtained in violation

of the Sixth Amendment because his trial attorney had operated

under a conflict of interest grounded in a fee dispute with investigator

Hinkson, which resulted in the attorney not calling Hinkson as a trial

witness to impeach Shaquana Ellis’s identification. Recognizing that

this Sixth Amendment claim was barred from federal review because

the state court had rejected it, in the first instance, on a state

procedural ground, and conceding that Hyman could not excuse the

default through a showing of good cause and prejudice, counsel

attempted to lift the bar by making a gateway showing of Hyman’s

actual innocence. See Schlup v. Delo, 513 U.S. 298, 314–15 (1995).

To make this gateway showing, and to demonstrate a Sixth

Amendment violation, Hyman relied both on evidence proffered in

support of his second § 440 motion (already discussed supra at 15–18)

and on evidence developed at a three‐day hearing conducted by the

district court in December 2015 and January 2016.

19

A. Hyman’s Habeas Hearing Evidence

1. Shaquana Ellis

With the benefit of both court‐appointed counsel and a promise

from the Queens District Attorney not to prosecute her for perjury at

Hyman’s trial, Ellis testified in the district court that she did not

witness the March 10 shootout and, thus, lied in testifying that she

had at Hyman’s trial. Ellis stated that, on March 10, she was outside

1540 Hassock Street when she saw Hyman pull up to that building in

a green car, but she did not see him carrying or firing a gun. When

she heard gunshots, Ellis ran into the building, going to Apartment

3A, where she saw Amanda Benitez and Shaquana Delain. Ellis said

that her trial testimony, professing to have been with these women at

the hallway window when the shooting occurred, was untrue. The

only thing she saw from the hallway window on the night of March

10 was the lights of emergency vehicles responding to the shooting.

Ellis stated that she falsely testified to witnessing the shooting

because “my life and my family life was threatened.” Habeas Hearing

Tr. at 36. Ellis explained that, as she was walking home alone at

approximately 2:00 a.m. on March 11, an unknown individual, who

“had a hoodie and a bandana around [his] face,” exited a vehicle that

had pulled up beside her and pointed a gun at her face. Id. The man

told Ellis that if she “didn’t go and point Tullie out in a lineup, that

they were going to come kill [her] and [her] family.” Id. The hooded

individual, along with the car’s driver, instructed Ellis to tell police

that there were red and green cars at the shootout. Ellis said that she

herself fabricated the detail about seeing flashes coming from

Hyman’s hands to make her account “convincing.” Id. at 72.

20

The district court, whose opinion carefully details

inconsistencies and implausibilities in Ellis’s testimony, found her to

be a “facile liar” and observed that “several features of [her]

testimony were effectively undermined on cross‐examination,”

notably, her account of the threat she claimed to have received the

night of the shooting. Hyman v. Brown, 197 F. Supp. 3d at 445, 461.

Nevertheless, the court concluded that the “critical admission” that

she had not seen the shootout or Hyman firing a weapon, “rings very

true,” a conclusion reinforced by “other” corroborating evidence and

by the state’s failure to “impugn[] Ellis’s motive for recanting.” Id. at

461 (emphasis in original).

2. Amanda Benitez

Amanda Benitez testified that neither she nor Ellis arrived at

1540 Hassock Street until after the shooting was over and police

already had secured the crime scene. Benitez did not speak with Ellis

until the morning after the shooting, when Ellis said that her

boyfriend, Shah, wanted Ellis and Benitez to tell police “that Tullie

[Hyman] was the shooter,” Habeas Hearing Tr. at 132, that the cars

involved were green and red, and that Hyman “was hanging out the

car shooting,” id. at 136. Ellis said she was going to tell this story

because she did not want Shah to go to jail, which led Benitez to think

that Shah might have been involved in the shootout.14 Benitez told

Ellis she did not want to give this story, and when police interviewed

Benitez, she stated that she did not know anything about the shooting

because she did not see it. Only after police insisted that she must

know something, did Benitez tell the story Ellis had given her, making

clear that she had no personal knowledge of events, but was reporting

14 This is the third motive identified for Ellis’s false testimony in the state trial, Ellis herself

ascribing it to death threats and Manning reporting Ellis’s wish to help Whitmore, the

father of her cousin’s baby.

21

only what she had heard. Benitez claimed that a disclaimer to this

effect was written at the top of her police statement when she signed

it, even though no such statement appeared on the signed document

offered into evidence at the hearing.

The district court observed that while, “[i]n many respects,

Benitez exuded credibility,” her testimony was “problematic” in its

“selective disavowals” of certain prior statements and the “patent

incredibility” of her claim to have signed a statement for the police

containing a now‐missing disclaimer. Hyman v. Brown, 197 F. Supp.

3d at 462. On balance, the district court concluded that Benitez’s

“hearing testimony reliably support[ed] the narrow point for which it

was offered, [i.e.,] as independent proof that Ellis was not present

during the shooting and thus as corroboration of the basic premise of

the recant.” Id.

3. Shaquana Delain

Shaquana Delain, who had grown up with Ellis and Benitez,

testified that, on the night of March 10, 2000, she was not with Ellis

and Benitez in the third‐floor hallway as Ellis had testified at trial.

Rather, Delain was inside an apartment at 1540 Hassock Street. She

heard no gunshots and learned about the shootout only when a

building resident told her about it. The district court found Delain’s

testimony wholly believable. See id. at 452.

4. Kevin Hinkson

Finally, the district court heard Kevin Hinkson testify to why

he concluded it would have been impossible for anyone to have

witnessed the shootout from the third‐floor hallway. The court

observed that this testimony “essentially track[ed] the substance of

[Hinkson’s] 440 affidavits” and did not “add materially to the actual

22

innocence analysis.” Id. The court did, however, rely on Hinkson’s

testimony in addressing the merits of Hyman’s Sixth Amendment

claim.

B. Respondent’s Evidence

In rebuttal, respondent offered evidence developed during the

Medina murder investigation but not introduced at trial, specifically,

statements inculpating Hyman by shooter Jonathan Whitmore and

eyewitness Joseph Howard.15

1. Jonathan Whitmore

In a written statement to the police dated March 11, 2000,

Whitmore admitted firing gunshots at Hyman the prior evening, but

characterized his actions as defensive. Whitmore stated that he had

been afraid of Hyman for some weeks after a friend told him about a

note left on another friend’s car stating, “I hope you[‘re] bulletproof,”

signed, “red Ac.” Habeas Exh. G‐14a. Although Whitmore never saw

the note, he interpreted it as a threat to himself, understanding “red

Ac” to refer to Hyman’s red Acura and believing that Hyman was

upset by Whitmore “trying to talk to his girl.” Id.

In a videotaped interview the same day, Whitmore stated that

he had never met Hyman, but knew that he had owned a red Acura

and recently acquired a green Mazda MX6. In the weeks before the

shootout, Whitmore’s friends told him that Hyman was driving

around 1540 Hassock Street looking for Whitmore. Although he

initially tried to hide whenever he saw the red Acura, Whitmore

eventually decided to protect himself and, toward that end, placed a

15Whitmore’s statements were held inadmissible at the Hyman‐Rabsatt trial pursuant to

Bruton v. United States, 391 U.S. 123 (1968).

23

.380 caliber gun inside a box, inside a bag, just over the fence in front

of 1540 Hassock Street.

Whitmore stated that, on the evening of March 10, 2000, he was

outside 1540 Hassock Street, talking with Shaquana Delain and

“Kim,” when he saw a red Acura and green Mazda MX6 arrive at the

building, “the green car in front and the red car [] behind it.” Habeas

Exh. K at 9. As Whitmore told the women to run inside, Hyman and

another person began firing at Whitmore through the open front

passenger window of the green car. Whitmore did not see what guns

the men were using and, therefore, “[c]ouldn’t say this was a 9mm or

that was a .45.” Id. at 23. What he did see was Hyman’s face and arm

extending out of the window, then lights and sparks. Whitmore

retrieved his own gun and “just blast[ed] back,” emptying a seven‐

shot clip. Id. at 10. Running inside the building as he fired, Whitmore

went to his mother’s apartment and threw the gun out a window.

The district court found Whitmore’s accounts “generalized,

unsubstantiated[,] . . . [and] patently incredible.” Hyman v. Brown, 197

F. Supp. 3d at 456. It observed that Whitmore “fail[ed] to offer any

plausible basis” for interpreting the note as “a threat to him,” much

less one requiring him to arm himself for a gunfight. Id. at 458.

Further, his “self‐serving” statements were in “stark conflict” with

other evidence as well as the prosecution’s trial theory. Id. For

example, Whitmore placed himself in the company of two women

when the shooting began, making no mention of Derek Harris, whom

the prosecution had portrayed as his confederate in the shootout.16

Also, Whitmore’s placement of the green Mazda ahead of the red

16As recounted supra at 22, the district court found Shaquana Delain credible in testifying

that she was inside an apartment at 1540 Hassock Street when the March 10 shootout

occurred.

24

Acura conflicted with trial testimony from Ellis, Burton, and McCoy,

which placed the cars in reverse order. And his professed sighting of

two persons in the Mazda was at odds with Ellis’s trial testimony,

which placed Hyman alone in the vehicle. Finally, the district court

thought it more than mere coincidence that Whitmore, in disavowing

knowledge of the type of guns fired from the cars, mentioned the

caliber of two guns actually used and later found in his car. Thus, the

district court concluded that “the prosecution’s resort to Whitmore’s

statement at the gateway hearing as a sort of smoking gun” rebutting

Hyman’s actual innocence claim “is difficult to explain; if introduced

to rational jurors, their reaction would have to be an even further loss

of confidence in the overall investigation.” Id.17

2. Joseph Howard

On March 11, 2000, Joseph Howard told police that he was

walking out of 1540 Hassock Street shortly after 7:00 p.m. the previous

night when he saw a red, four‐door Acura with tinted windows stop

outside the building approximately 20 feet from him. Howard saw

three African‐American men in the vehicle, one of whom exited the

passenger side and began shooting what appeared to be a .45 caliber

or 9mm handgun.

17The conclusion is not ineluctable. The car‐order discrepancy seems of little import to

Whitmore’s credibility as there is no question that he viewed the shootout and Hyman

himself admits that he was at the scene in his green Mazda. Further, because Ellis now

admits that she did not see the shootout, her testimony cannot impeach Whitmore or

anyone else. Nevertheless, Hyman himself stated that he was alone in the green Mazda at

the shootout, not with another person as Whitmore recalled. But Hyman’s admission

corroborates Whitmore, at least to the extent he placed Hyman in the green Mazda at the

shootout. And if Burton’s and McCoy’s testimony as to the cars’ order casts doubt on

Whitmore’s recollection as to that fact, these witnesses support Whitmore’s identification

of Hyman as a shooter: Burton, because she saw gun flashes coming from the green car,

and McCoy because she saw gunshots fired by a person who briefly exited the green car.

See supra at 10–11.

25

In a second interview four days later, Howard stated that he

was actually at a nearby bus stop, approximately 50 feet from the red

Acura, when he saw two men exit the car. Howard heard twenty to

thirty gunshots exchanged. He then saw the two gunmen return to

the Acura, which sped away.

From a photo array—no longer available for review at the

habeas hearing—Howard identified Hyman as one of the March 10

shooters. In neither interview did Howard mention seeing a green

car. Rather, he reported seeing a black jeep with tinted windows

following directly behind the Acura, as if the two cars were together.

But he did not state that he saw any gunshots fired from or by persons

in that car.

The district court concluded that “no rational factfinder would

assign significant weight to” Howard’s statements because, despite

his photo‐array identification of Hyman as one of the shooters, “his

story conflicts too materially with Ellis’s for a jury to accept a

prosecutor’s decision to offer both his and her accounts.” Id. at 459.18

The court further observed that “the dark car Howard says he saw

behind the red Acura was a Jeep, which cannot plausibly be confused

with a green Mazda MX6, a sports car.” Id.19 In any event, the district

court noted that respondent could not offer “a definite reason” for not

calling Howard as a trial witness, reporting only that he was “‘very,

very difficult to find at the time of the investigation and not very

cooperative.’” Id. at 458 (quoting Habeas Hearing Tr. at 5–6).

18 Whatever concerns Howard’s account might raise, inconsistency with Ellis’s trial

testimony would not appear to be one of them once the district court credited her

testimony that she had not, in fact, seen the March 10 shootout.

19 Hyman himself reported seeing a Jeep on Hassock Street at the time of shootout, and his

statements leave no doubt as to the presence of his green Mazda.

26

C. The District Court’s Ruling

1. Actual Innocence

In a 91‐page opinion reviewing the above evidence in detail, the

district court ruled that Hyman had made the gateway showing of

actual innocence necessary to lift the procedural bar to habeas review

of his Sixth Amendment claim. Insofar as the gateway standard

required Hyman to adduce credible new evidence of innocence, the

district court ruled that he carried that burden simply through the

Manning, Blye, and Sanders affidavits offered in support of his

second § 440 motion. See id. at 461. Each of those affidavits cast doubt

on Shaquana Ellis’s trial testimony professing to have witnessed the

March 10 shootout. In any event, Hyman carried his burden through

further new evidence: the hearing testimony of Ellis, Benitez, and

Delain, the first two of whom were credible, if not in whole, at least

on the “narrow” proposition that Ellis was not present during the

shooting and, thus, could not identify Hyman as a participant. Id. at

462.

The district court ruled that this new evidence made a

compelling showing of innocence because “unless Ellis’s [trial]

testimony was believable, there was essentially no case against

Hyman.” Id. The district court further concluded that Ellis’s recant

“would likely breathe new life into the defense theory that she and

other witnesses may have slanted their accounts to promote the

theme that Whitmore was the victim.” Id. at 463. Thus, the district

court concluded that the new evidence made it “‘more likely than

not’” that “‘any reasonable juror would have a reasonable doubt’

about Hyman’s guilt.” Id. at 462 (quoting House v. Bell, 547 U.S. at

538).

27

2. Sixth Amendment Claim

As to Hyman’s Sixth Amendment claim, the district court

concluded that the state court unreasonably applied both prongs of

Strickland v. Washington, 466 U.S. 668 (1984), in denying Hyman relief

from judgment. At the objectively‐reasonable‐conduct prong of

inquiry, the district court ruled that Strickland did not permit the state

court to conclude that trial counsel’s decision not to call Hinkson

could have been reasonable strategy because “there is no articulable,

reasonable, strategic reason” for counsel not to have introduced

Hinkson’s sightline findings. Hyman v. Brown, 197 F. Supp. 3d at 464.

The district court thought that conclusion only reinforced by the fact

that counsel was then operating under an “actual conflict of interest,”

i.e., a fee dispute with the investigator. Id. at 466 (internal quotation

marks omitted). At the prejudice prong of inquiry, the district court

faulted the state court for “fail[ing] to appreciate the pivotal role

Ellis’s testimony played in the state’s case,” which meant that, “had

counsel successfully impeached Ellis” with Hinkson’s findings,

“there is a more than reasonable probability that the result of the

proceeding would have been different.” Id.

DISCUSSION

I. The Actual Innocence Gateway

As the district court recognized, Hyman’s actual innocence

claim plays a “procedural, not substantive” role in this case. Rivas v.

Fischer, 687 F.3d at 541. Even if successful, the claim cannot itself

afford Hyman habeas relief from his state conviction. It can only open

a gateway to federal review of an otherwise procedurally barred Sixth

Amendment claim that, if itself successful, could afford him relief. See

Schlup v. Delo, 513 U.S. at 314.

28

This is not to minimize the importance of an actual innocence

claim. “[C]oncern about the injustice that results from the conviction

of an innocent person has long been at the core of our criminal justice

system,” both state and federal. Id. at 325. But within that system,

“trial is the paramount event for determining the guilt or innocence”

of an accused. Herrera v. Collins, 506 U.S. 390, 416 (1993). An accused

enters trial with “a presumption of innocence” and a right to “insist

that his guilt be established beyond a reasonable doubt.” Id. at 398.

Once guilt is so established, however, a federal habeas court will not

relitigate the question of guilt for a state defendant who protests his

actual innocence. See Rivas v. Fischer, 687 F.3d at 540 & n.34 (observing

that Supreme Court “has never explicitly recognized the existence of

a freestanding actual innocence claim”). Rather, a federal habeas

court will review state convictions for constitutional error. See 28

U.S.C. § 2254.20

The law, nevertheless, affords an actual innocence gateway

claim because “the existence of a concededly meritorious

constitutional violation is not in itself sufficient . . . [to] allow a habeas

court to reach the merits of a barred claim.” Schlup v. Delo, 513 U.S. at

316. Usually, that bar will be lifted only if a petitioner demonstrates

good cause to excuse his default and ensuing prejudice. See House v.

Bell, 547 U.S. at 536 (collecting cases). Even in the absence of that

showing, however, the law recognizes that, in a “narrow class of

20Actual innocence is “‘not itself a constitutional claim’”—except perhaps when raised in

the context of an Eighth Amendment challenge to a capital sentence. Schlup v. Delo, 513

U.S. at 315 (quoting Herrera v. Collins, 506 U.S. at 404); cf. Moore v. Dempsey, 261 U.S. 86, 87–

88 (1923) (observing that issue on habeas review “is not the petitioners’ innocence or guilt

but solely the question whether their constitutional rights have been preserved”). In

Herrera, the Supreme Court presumed, without deciding, that the Eighth Amendment

prohibition of cruel and unusual punishment would preclude the execution of a defendant

who made a “truly persuasive” demonstration of actual innocence. 506 U.S. at 417

(concluding that defendant failed, in any event, to make that showing).

29

cases,” there remains the risk of “a fundamental miscarriage of

justice” if the defaulted constitutional claim is not heard. Schlup v.

Delo, 513 U.S. at 315 (internal quotation marks omitted). That narrow

class of “truly extraordinary” cases consists of those presenting

credible and compelling claims of actual innocence. Id. at 338; see

Herrera v. Collins, 506 U.S. at 404 (“[F]undamental miscarriage of

justice exception[] is grounded in the ‘equitable discretion’ of habeas

courts to see that federal constitutional errors do not result in the

incarceration of innocent persons.”); Murray v. Carrier, 477 U.S. 478,

496 (1986) (limiting “miscarriage of justice” exception to

“extraordinary case[s], where a constitutional violation has probably

resulted in the conviction of one who is actually innocent”). Thus, a

state prisoner who “seek[s] access to a federal habeas court in the face

of a procedural obstacle,” and who cannot overcome that obstacle by

showing cause and prejudice, “must advance both a legitimate

constitutional claim and a credible and compelling claim of actual

innocence.” Rivas v. Fischer, 687 F.3d at 540 (emphases in original).

The petitioner’s burden in making a gateway showing of actual

innocence is deliberately “demanding.” House v. Bell, 547 U.S. at 538;

see Schlup v. Delo, 513 U.S. at 324 (observing that actual innocence

claims are rarely successful); accord McQuiggin v. Perkins, 569 U.S. 383,

386, 401 (2013) (“stress[ing] that the Schlup standard is demanding”

and cases satisfying it “rare”). It requires, first, that petitioner adduce

“new reliable evidence—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical

evidence—that was not presented at trial.” Schlup v. Delo, 513 U.S. at

324. In addition to being reliable, i.e., credible, the evidence must be

compelling. This second requirement demands “evidence of

innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the trial was

30

free of nonharmless constitutional error.” Id. at 316; accord Rivas v.

Fischer, 687 F.3d at 541.21

The standard’s demand for “evidence of innocence,” Schlup v.

Delo, 513 U.S. at 316 (emphasis added), references “factual innocence,

not mere legal insufficiency,” Bousley v. United States, 523 U.S. 614, 624

(1998); accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also

Doe v. Menefee, 391 F.3d 147, 162 (2d Cir. 2004) (Sotomayor, J.) (“As

Schlup makes clear, the issue before [the] court is not legal innocence

but factual innocence.”). The new evidence need not demonstrate

factual innocence to an “absolute certainty.” House v. Bell, 547 F.3d at

538; accord Rivas v. Fischer, 687 F.3d at 542. But it must be sufficiently

credible and compelling to allow a federal court to conclude that

“more likely than not, in light of the new evidence, no reasonable

juror would find [petitioner] guilty beyond a reasonable doubt—or,

to remove the double negative, that more likely than not any

reasonable juror would have reasonable doubt.” House v. Bell, 547

U.S. at 538; see Schlup v. Delo, 513 U.S. at 327; Rivas v. Fischer, 687 F.3d

at 541.

As this court has recognized, this standard is “somewhat

cryptic” in marrying a seemingly absolute requirement (no

reasonable juror) to a probabilistic one (more likely than not). Rivas

v. Fischer, 687 F.3d at 541 (citing Schlup v. Delo, 513 U.S. at 339

(Rehnquist, C.J., dissenting) (characterizing standard as “classic

mixing of apples and oranges”)). Nevertheless, this court has located

21While this gateway standard is demanding, it is less than what would be required to

support a free‐standing claim of actual innocence. See Schlup v. Delo, 513 U.S. at 316

(observing, by reference to Herrera v. Collins, 506 U.S. 391, that, assuming actual innocence

claim could support Eighth Amendment challenge to capital sentence, “evidence of

innocence would have had to be strong enough to make [defendant’s] execution

constitutionally intolerable even if his conviction was the product of a fair trial” (emphasis

in original) (internal quotation marks omitted)).

31

some guidance for its application in contrasts that the Supreme Court

has drawn between the Schlup standard and other familiar ones. See

id.

Notably, Schlup emphasizes that “actual innocence . . . does not

merely require a showing that a reasonable doubt exists in the light

of the new evidence, but rather that no reasonable juror would have

found the defendant guilty.” 513 U.S. at 329. Further, a “more likely

than not” showing as to what “no reasonable juror would have

found” requires “a stronger showing than that needed to establish

prejudice,” but not so strong as that demanded by the “‘clear and

convincing’ standard.” Id. at 327; see Rivas v. Fischer, 687 F.3d at 541.22

Further, the Court has stressed that Schlup’s actual innocence

standard does not equate to the sufficiency‐of‐the‐evidence standard

in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Jackson asks whether the

trial evidence, viewed in the light most favorable to the prosecution,

“could” allow any reasonable trier of fact to find a charged crime

proved beyond a reasonable doubt. Id. By contrast, Schlup’s actual

innocence standard considers a different “mix of evidence” from a

different “vantage point.” Rivas v. Fischer, 687 F.3d at 542.

Specifically, a reviewing court assessing the probability of actual

innocence is not limited to the trial record. To the contrary, it “must

consider all the evidence, old and new, incriminating and

exculpatory,” House v. Bell, 547 U.S. at 538 (internal quotation marks

omitted), and, in doing so, “is not bound by the rules of admissibility

22Compare Strickland v. Washington, 466 U.S. at 694 (holding that, to demonstrate prejudice,

defendant must show “reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different”), with Sawyer v. Whitley, 505 U.S.

333, 336 (1992) (holding that petitioner must show “by clear and convincing evidence that,

but for a constitutional error, no reasonable juror would have found the petitioner” guilty

(internal quotation marks omitted)).

32

that would govern at trial,” Schlup v. Delo, 513 U.S. at 327. This is

because, at the gateway stage of inquiry, a habeas court’s task is not

to identify trial error or to delineate the legal parameters of a possible

new trial. It is to identify those cases in which a compelling showing

of actual innocence would make it a manifest injustice to maintain

conviction unless it was free of constitutional error. Thus,

incriminating evidence obtained in the course of an unlawful search,

or custodial admissions made in the absence of Miranda warnings,

may well be inadmissible at trial. Nevertheless, such evidence is

properly considered in assessing factual innocence, with the manner

of procurement informing reliability and relevance and, therefore,

weight.

The district court concluded otherwise: “all the evidence” does

not mean evidence “unquestionably . . . available” to the prosecution

at the time of trial but “clearly inadmissible” or simply not offered.

Hyman v. Brown, 197 F. Supp. 3d at 454. In support, it cited Schlup’s

quotation of the factual innocence standard proposed in a law review

article by Judge Friendly for all federal habeas review:

The habeas court must make its determination

concerning the petitioner’s innocence in light of all the

evidence, including that alleged to have been illegally

admitted (but with due regard to any unreliability of it)

and evidence tenably claimed to have been wrongly excluded

or to have become available only after the trial.

Schlup v. Delo, 513 U.S. at 328 (quoting Henry J. Friendly, Is Innocence

Irrelevant? Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV.

142, 160 (1970)) (emphasis added). The district court construed the

highlighted phrase to limit a habeas court’s consideration of evidence

known, but not offered, at trial, to evidence that might have been

wrongfully excluded. See Hyman v. Brown, 197 F. Supp. 3d at 455

33

(explaining why Whitmore’s confession inculpating Hyman, and

Howard’s out‐of‐court identification of Hyman, should not be

considered in assessing Hyman’s actual innocence claim—although

concluding that, even on consideration, the claim succeeded). We

cannot agree.23

The plain language of the sentence indicates that Judge

Friendly, and in turn the Supreme Court, were emphasizing the

absence of evidentiary limits on actual innocence review by

explaining that “all evidence, includ[es]” even evidence illegally

admitted at or wrongfully excluded from trial. See, e.g., P.C. Pfeiffer

Co. v. Ford, 444 U.S. 69, 77 n.7 (1979) (construing “including” to mean

part of larger group (citing Webster’s New Collegiate Dictionary 581

(1973))). Indeed, it would make no sense to suggest that an actual

innocence assessment could be informed by illegally admitted

evidence but not by properly excluded evidence. They are opposite

sides of the same coin and equally probative of actual innocence (or

guilt). Much less does it make sense to determine actual innocence

from illegally admitted evidence but not from admissible evidence

that the prosecution chose not to offer, whether because it seemed

duplicative of, or simply less persuasive than, evidence now called

into question by petitioner’s new evidence.

Nor do we draw—as the district court did—an inference that

Schlup was limiting its own pronouncement freeing actual innocence

inquiries from rules of admissibility by following it with the quoted

language from Judge Friendly. See Hyman v. Brown, 197 F. Supp. 3d

at 455. In Kuhlmann v. Wilson, a plurality of the Court, after quoting

23As indicated infra at 55, we accord the Whitmore/Howard evidence little weight, except

to note that it does not support Hyman’s actual innocence claim. We here clarify only that

a court is not barred from considering such evidence because it was properly excluded

from, or available but not offered at, petitioner’s original trial.

34

the same language from Judge Friendly, followed it with the

unqualified conclusion that, “[t]hus, the question whether the

prisoner can make the requisite showing must be determined by

reference to all probative evidence of guilt or innocence.” 477 U.S. 436,

455 n.17 (1986) (emphasis added).

Accordingly, we construe the Supreme Court’s actual

innocence precedents to mean what they say, i.e., that reviewing

courts should assess actual innocence claims in light of “all the

evidence” regardless of admissibility but with proper consideration

for the weight the evidence can bear in light of relevance and

reliability. See House v. Bell, 547 U.S. at 538; Schlup v. Delo, 513 U.S. at

328; Kuhlmann v. Wilson, 477 U.S. at 455 n.17.

Nevertheless, a challenge arises in making an actual innocence

assessment from “all the evidence” because Schlup requires adherence

to the principle, “firmly established in our legal system,” “that the line

between innocence and guilt is drawn with reference to a reasonable

doubt.” Schlup v. Delo, 513 U.S. at 328. Moreover, it is not the court’s

“independent judgment as to whether reasonable doubt exists” that

is determinative. Id. at 329. Rather, the court’s task is to “make a

probabilistic determination about what reasonable properly

instructed jurors would do.” House v. Bell, 547 U.S. at 538 (internal

quotation marks omitted); accord Rivas v. Fischer, 687 F.3d at 542

(observing that Jackson’s use of the word “could” focuses inquiry “‘on

the power of the trier of fact to reach its conclusion,’” whereas Schlup’s

“use of the word ‘would’ . . . ‘focuses the inquiry on the likely behavior

of the trier of fact’” (quoting Schlup v. Delo, 513 U.S. at 330 (emphasis

added in Rivas))). Presumably, properly instructed jurors would be

told not to consider inadmissible evidence. Nevertheless, given the

emphasis the Supreme Court has placed on assessing actual

35

innocence claims in light of “all the evidence . . . without regard to . .

. admissibility,” House v. Bell, 547 U.S. at 538, we do not interpret its

reference to “properly instructed jurors” as a limitation on the

evidence to be considered by the court. Rather, we understand the

phrase to signal that the habeas court should assume the jury has been

properly instructed as to the elements of the charged crime and the

prosecution’s burden of proof when, upon reviewing the totality of

the evidence, the court decides whether it is “more likely than not, in

light of the new evidence, [that] no reasonable juror would find [the

defendant] guilty beyond a reasonable doubt.” Id.; see Schlup v. Delo,

513 U.S. at 331 (referencing juror “conscientiously following the

judge’s instructions requiring proof beyond a reasonable doubt” in

reaching conclusion that no reasonable juror, so instructed, would be

likely to vote for guilt if new evidence there adduced were found

reliable on remand).

Applying these principles here, we conclude that Hyman has

not made a gateway showing of actual innocence.

II. Applying the Gateway Standard

A. Respondent’s Unpersuasive Challenges

In applying the gateway standard here, we begin by explaining

why two of respondent’s challenges to the district court judgment do

not persuade.

1. There Are No Categorical Limits on the Types of

Evidence that Can Support a Claim of Actual

Innocence

The district court found credible and compelling new evidence

that effectively impeached Shaquana Ellis’s trial identification of

36

Hyman as a participant in the March 10 shootout. At the habeas

hearing, Ellis herself recanted her trial testimony, admitting under

oath that she did not see the shootout. That admission was

corroborated by the sworn testimony or affidavits of six persons.

Respondent argues that, even if credible, impeachment

evidence cannot be compelling because it does not fall within any of

the three categories of “new reliable evidence” identified in Schlup.

513 U.S. at 324 (stating that petitioner must present “new reliable

evidence—whether it be [1] exculpatory scientific evidence, [2]

trustworthy eyewitness accounts, or [3] critical physical evidence”).

Respondent’s argument is defeated by House v. Bell, which instructs

that Schlup’s list is illustrative, not exhaustive. See 547 U.S. at 537

(quoting Schlup list, but observing that “habeas court’s analysis is not

limited to such evidence”); accord Munchinski v. Wilson, 694 F.3d 308,

338 (3d Cir. 2012) (observing that Schlup’s list is not exhaustive of

evidence that can be reliable); Wolfe v. Johnson, 565 F.3d 140, 164 n.32

(4th Cir. 2009) (same); Souter v. Jones, 395 F.3d 577, 593 n.8 (6th Cir.

2005) (same).

Thus, we conclude that while certain evidence may bear more

weight than other evidence in demonstrating factual innocence, there

are no categorical limits on the types of evidence that can be offered

to do so.

2. The District Court Did Not Clearly Err in Finding

Ellis’s Recantation Credible

Alternatively, respondent faults the district court for finding

Ellis’s recantation credible. We review a district court’s credibility

assessment of witnesses who testify before it only for clear error. See

Doe v. Menefee, 391 F.3d at 163–64. Nevertheless, when, as here, a

witness is recanting prior sworn testimony supporting a conviction,

37

we expect district courts to look upon the recantation “with the

utmost suspicion.” Haouari v. United States, 510 F.3d 350, 353 (2d Cir.

2007). The district court should consider not only the recantation, but

the motives that may have prompted it, the timing of the submission,

any possible motive for the original testimony, any inconsistencies in

the witness’s account or between that account and other evidence, the

plausibility or implausibility of inferences or assumptions that

crediting the recantation would require, as well as all other factors

generally considered in assessing witness credibility. See generally Doe

v. Menefee, 391 F.3d at 164–65.

Here, respondent argues that the credibility of Ellis’s

recantation is suspect because her hearing testimony was compelled

by federal subpoena, following her earlier refusal to provide a sworn

statement. These circumstances warrant consideration in assessing

Ellis’s credibility, but they do not preclude a finding that her

recantation is credible. So too the fact that Ellis’s hearing testimony

was given under a grant of immunity from prosecution for perjury in

her trial testimony. The grant did not absolve Ellis of the duty to

testify truthfully at the habeas hearing. Thus, this circumstance was

also properly considered in determining credibility, but it did not

compel a finding that Ellis’s recantation was not credible.

As the record shows, the district court well understood these

circumstances and others pertinent to Ellis’s credibility. It did not

hesitate to identify implausibilities and inconsistencies in Ellis’s

testimony. At the same time, the district court observed that Ellis’s

recantation was not recent; she had maintained it for more than a

decade in speaking with various persons. The district court also

noted respondent’s failure to point to any motive Ellis might have for

falsely recanting her trial testimony. In weighing the totality of these

38

circumstances, the district court had a unique advantage unavailable

to this court: it heard directly from Ellis and observed her demeanor

as her recantation was offered on direct examination and tested on

cross‐examination. See id. at 164 (recognizing that “district courts are

generally best placed to evaluate testimony in light of the witnesses’

demeanor”); Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003)

(recognizing “factfinder’s unique ability to assess the witness” in

making credibility determination).

Further, the district court heard testimony or reviewed

affidavits from various persons who reported either that they did not

witness the shootout with Ellis, as she testified at trial, or had heard

her subsequently admit to not seeing the shootout. The district court

conducted a thorough hearing to develop this evidence, proceeded

carefully to assess the extent to which it corroborated or undermined

Ellis’s own account, and ultimately concluded that Ellis’s recantation

and the corroboration supporting it were credible—but only in part.

Specifically, the district court credited Ellis’s recantation on the

narrow point that she did not see the March 10 shootout and,

therefore, could not identify Hyman as a shooting participant.

Otherwise, the district court found Ellis to be a “facile liar” in

explaining both her motives for testifying falsely at trial and her

actual whereabouts at the time of the shootout. Hyman v. Brown, 197

F. Supp. 3d at 461. Similarly, as to corroborating witness Benitez, the

district court credited only her testimony that she and Ellis were not

in the third‐floor hallway of 1540 Hassock Street at the time of the

March 10 shootout and, thus, not in a position to see what occurred.

It found implausible Benitez’s explanation for telling the police

otherwise and problematic her inconsistent accounts of the night’s

events.

39

We are satisfied that the district court viewed Ellis’s recantation

with the appropriate high level of skepticism. But just as the law

permits a factfinder who identifies falsity in part of a witness’s

testimony to discredit the whole, see, e.g., Siewe v. Gonzales, 480 F.3d

160, 170 (2d Cir. 2007) (referencing maxim falsus in uno, falsus in

omnibus), it also affords a factfinder discretion to credit parts of a

witness’s testimony despite discrediting others, see, e.g., United States

v. Norman, 776 F.3d 67, 78 (2d Cir. 2015) (stating that factfinder is “free

to believe all, some, or none of a witness’s testimony” (internal

quotation marks omitted)). On this record of careful evidentiary

review and discernment by the district court, we identify no clear

error in its decision to credit that part of Hyman’s new evidence

indicating that Ellis did not see the March 10 shootout and, thus,

could not identify him as a shooting participant. We defer to that

finding in now assessing whether such credible new evidence made

a compelling showing of actual innocence.

B. Hyman Fails To Show Actual Innocence

The fact that new evidence is credible does not necessarily

make it compelling under the Schlup standard for actual innocence.

Precisely because the gateway standard for actual innocence is

demanding and rarely met, in applying it to Hyman’s claim, we begin

by considering circumstances in which courts have found it satisfied.

See Rivas v. Fischer, 687 F.3d at 543 (being “guided by Supreme Court’s

application of [Schlup] standard in House [v. Bell]” in assessing Rivas’s

claim of actual innocence).

40

1. Precedents Identifying Compelling Showings of

Actual Innocence

a. Schlup v. Delo

In Schlup, petitioner was convicted of murder based largely on

the testimony of two corrections officers who identified him as one of

three white prisoners who attacked a black inmate and stabbed him

to death. Schlup sought federal habeas relief, maintaining his

innocence and arguing that trial counsel had been constitutionally

ineffective in failing to interview and call exculpatory witnesses. See

Schlup v. Delo, 513 U.S. at 306–07. In remanding the case for

application of a more‐likely‐than‐not, rather than clear‐and‐

convincing, standard of actual innocence, see id. at 327, the Supreme

Court highlighted the following new evidence: (1) sworn affidavits

from inmate eyewitnesses to the murder stating that Schlup was not

present for the crime and implicating other inmates by name;24 (2) the

sworn affidavit of a former prison lieutenant reporting a disciplinary

interaction with Schlup at and about the time of the killing, which cast

doubt on Schlup’s ability thereafter to have participated in the

murder and still arrived at the prison dining room 65 seconds before

the distress call prompted by the stabbing, as confirmed by a prison

videotape; and (3) the affidavit of an inmate‐clerk stating that there

was no delay between the stabbing and his placing the distress call,

and identifying the three men who assaulted the victim as persons

other than Schlup, see id. at 331.

The Court acknowledged that this new evidence might be

deemed “unreliable” at an actual innocence hearing on remand. Id.

24While the district court had considered these affidavits suspect, see Schlup v. Delo, 513

U.S. at 309 n.19, the Supreme Court deemed it noteworthy that it was “black inmates

attesting to the innocence of a white defendant in a racially motivated killing,” id. at 316.

41

Nevertheless, it observed that if the evidence were found credible, it

was sufficiently compelling to warrant relief. See id.

b. House v. Bell

The House petitioner was convicted of murdering a woman in

the course of what prosecutors contended was a sexual assault.

Central to the state’s largely circumstantial case were forensic

findings that House’s semen was present on the dead woman’s

clothing and her blood was present on House’s clothing. In claiming

actual innocence, House produced new test results undermining both

conclusions. Based on this evidence, prosecutors themselves

admitted that the semen at issue was from the victim’s husband, not

House. See House v. Bell, 547 U.S. at 540. As for minute quantities of

the victim’s blood on House’s clothes, new evidence prompted even

the state’s Assistant Chief Medical Examiner to acknowledge that the

blood likely got on House’s pants, not during the murder, but while

the pants were in police custody and came into contact with

mishandled autopsy samples of the victim’s blood. See id. at 547.

Nevertheless, the Supreme Court observed that the new forensic

evidence would not, by itself, have allowed petitioner to pass through

the actual innocence gateway. See id. at 548. What tipped the balance

was further new evidence pointing to the victim’s husband as her

murderer.

Most important, in the Court’s view, was testimony from two

sisters who stated that, at a gathering at their home after the murder

at which the victim’s husband was drinking heavily, they heard him

“rambling” about his wife’s death, “crying,” and saying he had

42

“slapped” her, causing her to “hit her head and it killed her,” but “he

didn’t mean to do it.” Id. at 549–50.25

At the habeas hearing, the husband denied killing his wife or

confessing to doing so, and the district court “did not question his

credibility.” Id. at 552. Nevertheless, the Supreme Court noted that

the husband’s hearing account of his whereabouts on the night of the

crime and his denial to ever striking his wife were both impeached by

other evidence, in the latter case by the state itself. See id.

The Court thus characterized House’s actual innocence claim

as a “close” one. Id. at 554; see also id. at 553–54 (cataloguing evidence

that might “still support an inference of guilt”). Nevertheless,

because “the central forensic proof connecting House to the crime—

the blood and the semen—has been called into question, and House

has put forward substantial evidence pointing to a different suspect,”

i.e., the victim’s husband, the Court concluded that House had carried

his Schlup burden because “had the jury heard all the conflicting

testimony—it is more likely than not that no reasonable juror viewing

the record as a whole would lack reasonable doubt.” Id. at 554.

c. Rivas v. Fischer

Finally, in Rivas v. Fischer, a case in which this court ruled that

a Schlup showing of actual innocence could excuse an untimely

habeas petition, see 687 F.3d at 550, we found petitioner to have

carried that burden through new, “largely unchallenged—expert

25The Supreme Court distinguished the sisters’ testimony from an “eleventh‐hour affidavit

vouching for a defendant and incriminating a conveniently absent suspect.” House v. Bell,

547 U.S. at 552. “The confession evidence here involves an alleged spontaneous statement

recounted by two eyewitnesses with no evident motive to lie. For this reason it has more

probative value than, for example, incriminating testimony from inmates, suspects, or

friends or relations of the accused.” Id.

43

testimony, which cast considerable doubt on the ‘central forensic

proof’ connecting him” to the murder of his former girlfriend, id. at

547. That proof was the medical examiner’s opinion as to the time of

death. In 1987, he estimated that the victim had died sometime

between Saturday afternoon March 28, 1987, and early Sunday

morning, March 29, 1987. Because Rivas had a “complete” and

“unchallenged” alibi for that time span, id. at 524, 543, the state “had

no case” against him unless it could prove that the victim died earlier

in the weekend, id. at 525. More than five years after the killing, the

state decided it could make that showing. Although no further

evidence had developed, a new district attorney asked the medical

examiner to review his case file again, whereupon the examiner

revised his opinion to conclude that the victim’s death “more likely”

occurred sometime “Friday night,” March 27, 1987, or “very early

Saturday morning.” Id. at 524.

To support his actual innocence claim, Rivas offered new

contrary evidence from a distinguished forensic pathologist, who

testified with a “reasonable degree of medical certainty” that the

condition of the victim’s body when examined by the medical

examiner at 3:30 p.m. on Monday, March 30, 1987—in “full rigor” and

without “discoloration around the abdominal wall”—meant that her

“death could not have occurred longer than 48 hours prior to the

time” of examination, i.e., could not have happened earlier than 3:30

p.m. on Saturday, March 28. Id. at 531 (internal quotation marks

omitted). The state mounted no “serious challenge” to the expert’s

“credibility or expertise.” Id. at 544. Moreover, it conceded that when

the medical examiner revised his time‐of‐death estimate, he was

under investigation for professional misconduct and, in November

1993, resigned his office, in part, to avoid criminal prosecution. See id.

at 521. On this record, this court concluded that “any reasonable juror

44

would almost certainly credit” “the essentially unchallenged

testimony of a respected forensic pathologist” as “against the word of

a disgraced medical examiner,” and “would therefore, more likely

than not, harbor a reasonable doubt about Rivas’s guilt.” Id. at 543,

546.26 At the same time, the court characterized the case as “close,”

noting that it “would not expect a lesser showing of actual innocence

to satisfy the Schlup standard.” Id. at 546.

2. Hyman’s Credible New Evidence Does Not Make

the Compelling Showing of Actual Innocence

Required by Schlup

With the benefit of these precedents, we apply the Schlup

standard here and conclude that Hyman’s new evidence, even if

credible, is not sufficiently compelling as to his actual innocence to

make it more likely than not that “no reasonable juror,” aware of the

new evidence, would return a guilty verdict on the charged crimes.

Schlup v. Delo, 569 U.S. at 329 (internal quotation marks omitted). This

is evident from (a) the substance of the evidence itself, (b) its

comparison to precedent, and (c) the totality of the evidence.

a. Substance

Plainly, the substance of credible new evidence will bear on

how compellingly it demonstrates actual innocence. The new

evidence established that Ellis did not see the March 10 shootout and,

26The court noted further new circumstantial evidence—“new” because not disclosed by

the prosecution to the defense at trial—that was, at least, consistent with the victim dying

on Saturday night: (1) an identified neighbor of the victim swore in an affidavit that, while

watching “Saturday Night Live” late on Saturday night March 28, she had heard a

“woman’s voice,” “shriek or scream,” “like someone was in trouble and not like anyone

kidding around,” Rivas v. Fischer, 687 F.3d at 529 (internal quotation marks omitted); and

(2) an unidentified neighbor reported hearing a dog barking and a car speeding away from

the vicinity of the victim’s home around 11:00 p.m. on Saturday night.

45

thus, lied in identifying Hyman as a participant. That is quite

different from new evidence that an eyewitness to a crime falsely

identified a person other than the one she actually saw commit it. Such

a false identification can bear on actual innocence because it is more

likely than not that an accused did not commit a crime if someone else

in fact did. But no such conclusion obtains in the circumstance here.

Ellis’s failure to see the shootout means she cannot inculpate

petitioner (or anyone else), but neither can she exonerate him. She

simply has no eyewitness evidence bearing on either petitioner’s guilt

or his innocence. Whatever question that might raise as to the

sufficiency of the prosecution’s case absent Ellis’s testimony, it does

not indicate Hyman’s likely innocence, much less do so compellingly.

See Bousley v. United States, 523 U.S. at 623 (distinguishing factual

innocence from “legal insufficiency”); accord Dunham v. Travis, 313

F.3d at 730.

b. Precedent Comparison

The failure of Hyman’s new evidence to make a compelling

showing of innocence is further demonstrated by a comparison to

Schlup, House, and Rivas. In each of these cases, the new evidence

directly supported petitioner’s factual innocence by indicating either

that he did not commit, or could not have committed, the crimes of

conviction.

In Schlup, inmate‐eyewitnesses to a prison stabbing swore that

petitioner was not one of the three (identified) men whom they saw

participate in that crime. If credible, this new evidence indicated that

petitioner did not commit the crime. Further, in Schlup, a former police

lieutenant swore that he was disciplining petitioner at about the time

of the stabbing. Such new evidence indicated that petitioner could not

have committed the crime within the time between the discipline

46

encounter and his arrival in the prison dining room as indicated on a

timed prison video recording.

In House, credible new tests of forensic evidence used to

identify petitioner at trial as the murderer discredited those

identifications. Further, two witnesses credibly testified to hearing

the victim’s husband admit to killing his wife. Such evidence

indicated that the petitioner did not kill the victim, because her

husband had.

Finally, in Rivas, credible new forensic evidence showed that

the victim died, not at the time reported by a discredited medical

examiner, but at a later time for which petitioner had an unchallenged

alibi. Thus, the new forensic evidence together with the alibi

indicated that petitioner could not have committed the murder at

issue.

Although the evidence in both House and Rivas was thus found

credibly to show that petitioner likely did not commit, or could not

have committed, the crimes of conviction, the courts characterized the

gateway showing in each case as “close.” House v. Bell, 547 U.S. at 554;

Rivas v. Fischer, 687 F.3d at 546. Indeed, in Rivas, this court observed

that it “would not expect a lesser showing of actual innocence” than

that made there “to satisfy the Schlup standard.” 687 F.3d at 546.

The new evidence here makes a far “lesser showing” of actual

innocence than that in Rivas, House, or Schlup. Evidence that Ellis

failed to see the March 10 shootout leaves the trial record with no

eyewitness identification of Hyman as the person firing a gun from

the green Mazda. But the absence of such evidence does not mean

that Hyman did not, or could not, have participated in the shootout.

It means only that Ellis does not know who, if anyone, did. This is

47

not to foreclose the possibility that, in some circumstances, a recanted

identification based on an admitted lack of knowledge, might so

“thoroughly undermine[] the evidence supporting the jury’s verdict”

as to support the probability determination required by Schlup. Id. at

543; see also House v. Bell, 547 U.S. at 553–54. We conclude only that

this is not such a case. To explain, we proceed to review the totality

of the evidence.

c. Totality of the Evidence

The district court concluded that without Ellis’s identification,

the prosecution effectively had no case against Hyman. See Hyman v.

Brown, 197 F. Supp. 3d at 462–63. The totality of the evidence shows

otherwise.

i. Hyman Places Himself at the Shootout

in the Green Mazda

To explain, Ellis’s trial testimony can be understood to consist

of two parts: (1) she saw Hyman at the scene of the shootout parked

outside 1540 Hassock Street in a green Mazda, and (2) she saw Hyman

firing a gun from the car’s passenger window. Ellis did not recant the

first statement. At the habeas hearing, she maintained that on March

10, 2000, she saw Hyman pull up to 1540 Hassock Street in a green

car. When she heard gunshots, she ran inside without seeing who

was doing the shooting. See supra at 20. But even if Ellis had recanted

the first part of her trial testimony, that would not help Hyman

because he does not dispute his presence at the shootout. The jury

heard his statements to the police and grand jury admitting that, at

the time of the shootout, he was indeed double‐parked outside 1540

Hassock Street, alone, in his green Mazda. Moreover, Hyman

acknowledged that he was not coincidentally caught up in the

48

shootout; he professed to be its unarmed target.27 In light of these

admissions, the singular focus of Hyman’s actual innocence claim is

the second part of Ellis’s testimony. Is it more likely than not that,

upon learning that Ellis did not see Hyman firing a gun during the

March 10 shootout—because she did not see the shootout at all—no

reasonable juror would find him guilty beyond a reasonable doubt of

the charged crimes? See Schlup v. Delo, 569 U.S. at 329. The totality of

the record does not admit that conclusion.

ii. Eyewitnesses See Gunfire From Vicinity

of Hyman’s Car

Ellis’s recantation shows that she had no probative evidence as

to whether Hyman fired a gun during the shootout. But not so other

eyewitnesses. Three residents of the area testified at trial to seeing

flashes of gunfire coming from a green (or dark) car or its occupant

during the shootout. Each witness identified the car as resembling

Hyman’s green Mazda.

Margaret Contreras testified that, as she was trying to move the

fatally wounded Maria Medina from the lobby of 1540 Hassock Street

to the relative safety of an elevator, she saw flashes of gunfire coming

from the passenger window of a dark green car. See supra at 9. Lynn

Burton testified that, upon hearing gunfire, she looked out a window

of her third‐floor apartment at 1540 Hassock Street and saw “shots

being fired” from both a red car and the dark car parked behind it,

which she described as “fire coming out of a window.” Trial Tr. at

27Because Hyman did not testify at trial or at the habeas hearing, his ambush claim was

not tested by cross‐examination. Nevertheless, he himself cast doubt on his credibility by

initially lying to police about driving to Hassock Street in a red Acura rather than the green

Mazda that he knew was pocked with bullet marks. See, e.g., United States v. Glenn, 312

F.3d 58, 69 (2d Cir. 2002) (observing that defendant’s “false exculpatory statements to law

enforcement officials may be circumstantial evidence of consciousness of guilt”).

49

1628. Deborah McCoy, who lived across from 1540 Hassock Street,

testified that, after hearing gunfire, she looked out the kitchen

window of her apartment and saw a man she recognized as Osimba

Rabsatt firing a gun from near a red car, while another man, whom

she did not know, got out of a dark car parked behind the red one,

fired a gun, and then got back in the car. See supra at 10–11.

The fact that none of these women could identify the occupant

of the green car is of no import because Hyman himself provided that

evidence. He stated that he was the sole occupant of the green Mazda

that was involved in the shootout. What is significant about these

three women’s testimony, then, is that each of them—viewing the

shootout separately and from different vantage points—reported

seeing gunfire coming from that car or its occupant. None testified to

seeing the car ambushed.

Insofar as the witnesses’ recollections differed on certain

points—e.g., the exact color of the car, whether its occupant fired from

inside or outside the car—these differences are not a product of Ellis’s

recantation. Rather, they were known to the trial jury, which

nevertheless voted to convict. Even with new evidence that Ellis had

not seen the shootout, a reasonable juror would more likely than not

attribute any car‐color confusion among other witnesses to the limited

light available at 7:00 p.m. in March for distinguishing among dark

colors. As for whether Hyman fired some shots from inside or outside

his car—or from both—a reasonable juror would more likely than not

conclude that it was not necessary to resolve differences on this point

because, in any event, the eyewitnesses all testified to seeing flashes

of gunfire coming from the direction of the green car, not only at the

50

car as Hyman told police in claiming to have been ambushed.28 In

light of consistent eyewitness testimony on this point, and Hyman’s

own admissions to being the sole occupant of the green car, Ellis’s

recantation of her gunfire sighting (based on a failure to see the

shootout at all) would not likely preclude any reasonable juror from

finding Hyman’s guilt proved beyond a reasonable doubt.

In concluding otherwise, the district court reasoned that Ellis’s

recantation might heighten juror skepticism about Contreras’s,

Burton’s, and McCoy’s testimony because these women, like Ellis,

had relationships with Whitmore or members of his family, providing

a motive for them to testify in his favor. The district court thought

such bias was evident in Contreras’s belated trial disclosure that she

saw Whitmore enter 1540 Hassock Street carrying a gun. While that

belated disclosure—known to the trial jury—could certainly inform

an assessment of Contreras’s credibility, in the end, it is not likely that

Ellis’s recantation would make every reasonable juror reject

Contreras’s testimony.

To begin, it hardly appears likely that Contreras delayed

reporting Whitmore’s March 10 gun possession to shield him from

police suspicion. After all, on the day after the shootout, March 11,

2000, Whitmore himself told police that he had been in possession of

a gun, firing an entire seven‐shot clip at Hyman during the gunfight.

Whitmore simply attempted to minimize his culpability by saying

28There is some non‐trial evidentiary support for Hyman shooting from outside as well as

inside a car. The Howard statement summarized supra at 25–26, identifies Hyman as one

of two shooters exiting the red Acura. And a police report summarizing interviews with

1540 Hassock Street residents indicates that, although most did not see the shooting, third‐

floor resident Tiffany Weeks stated that she saw two black males exit a red Acura and a

green Mazda, fire guns, and then speed away. In sum, even without Ellis, five

eyewitnesses (six with Whitmore) reported seeing gunfire coming from, not only at, the

parked cars. No person interviewed reported seeing an ambush of the cars.

51

that he acted defensively rather than offensively. The fact that

Contreras had seen Whitmore with a gun at the conclusion of the

March 10 shootout did nothing to support or undermine Whitmore’s

defensive version of events. In any event, when questioned at trial,

Contreras admitted seeing Whitmore. This makes it more, not less,

likely that she would not lie under oath, whether about seeing

Whitmore, seeing gun flashes, or any other part of her testimony.

Burton’s gunfire sighting also sheds no light on who was the

aggressor in the gunfire exchange.

As for McCoy, she testified that she “first” saw gunfire coming

from occupants of the parked cars. Trial Tr. at 1813. But the statement

must be considered in context. The gunshots McCoy first saw

followed the gunshots she heard, which is what prompted her to go

to the window. In short, when McCoy went to the window, the

shootout was already underway. Thus, her testimony also did not

identify either side in the shootout as the aggressor. Moreover, it

hardly appears more likely than not that McCoy’s mutual godmother

relationship with members of Whitmore’s family prompted her to

shade testimony in his favor. She is the one trial witness who, on

direct examination, specifically identified Whitmore as one of the

March 10 shooters. Meanwhile, she did not identify Hyman. At trial,

all she could state was that she saw gunfire coming from a red car and

a dark car. While she identified Rabsatt as the driver of the red car,

McCoy could not identify the driver of the dark car. It is Hyman’s

own statements that, even after Ellis’s recantation, identify him as the

sole occupant of that car.

52

iii. Ballistic Evidence Indicates a Gunfire

Exchange, not an Ambush

Ballistic evidence makes it unlikely that any reasonable juror

would reject eyewitness testimony about seeing flashes of gunfire

coming from Hyman’s car. Notably, .45 caliber and 9mm shell

casings were retrieved from the middle of Hassock Street, which was

right about where they would have been discharged from guns fired

from the passenger side window of a car double‐parked across from

1540 Hassock Street, where Hyman placed his own car. Meanwhile,

.380 caliber shell casings recovered from the walkway bordering 1540

Hassock Street were consistent with guns fired from that area toward

the car, as Whitmore himself admitted. In short, the casings retrievals

indicated gunshots fired both from and at the green car, not an

ambush of the green car’s unarmed occupant.29

As noted supra at 13, the guns that discharged the .45 caliber

and 9mm casings retrieved from the middle of Hassock Street were

themselves recovered from the wheel well of Whitmore’s car. If

Hyman fired one of the guns that discharged some of these casings, it

is curious that the gun would wind up in Whitmore’s car. The record

offers no satisfactory explanation. At trial, the prosecution suggested

that someone planted the guns in Whitmore’s car to deflect blame

29At the habeas hearing, respondent stated that the ballistic evidence was not “probative

as to . . . the defendant’s participation.” Habeas Hearing Tr. at 45. We construe this to

concede that the ballistic evidence could not specifically identify Hyman as the person

responsible for particular ballistic evidence. We do not construe it as a concession that the

ballistic evidence was irrelevant to the chain of circumstances establishing Hyman’s guilt,

much less to Hyman’s ability to make a compelling showing of actual innocence. Indeed,

in the sentence following the “participation” statement, respondent noted the recovery of

“several rounds of shells . . . or ballistics from the car [Hyman] was purportedly driving at

the time.” Id. As noted in text, spent shells would indicate shots fired from the general

location where they were retrieved, i.e., the parked green Mazda, while bullet marks on

that car would indicate shots fired toward it. In sum, the ballistic evidence provides strong

circumstantial evidence of a gunfire exchange, not an ambush.

53

from Hyman and Rabsatt. The hypothesis is pure speculation.

Nevertheless, it was argued to the jury at Hyman’s trial, which either

accepted it or, more likely, did not find it necessary to resolve to

conclude that guilt was established beyond a reasonable doubt. The

important point for purposes of actual innocence is that Ellis’s

recantation neither simplifies nor complicates the puzzle.

Accordingly, we do not think it more likely than not that, with the

addition of Ellis’s recantation to the gun‐location puzzle, no

reasonable juror would find Hyman guilty beyond a reasonable

doubt based on the totality of other evidence.

The conclusion finds further support in ballistic evidence

recovered from the 1540 Hassock Street building. The height of bullet

holes in the lobby door was consistent with gunshots fired toward the

building from a relatively low position, such as the open window of

a parked car, as Contreras and Burton witnessed. That the Mazda’s

window was open during the shootout was confirmed by shattered

glass inside the passenger door window track. The window did not

“pop” in Hyman’s face, as he told police in trying to support his

ambush story. See United States v. Glenn, 312 F.3d 58, 69 (2d Cir. 2002).

Indeed, for bullets entering 1540 Hassock Street—including the

bullet killing Ms. Medina—to have come from persons firing at the

green Mazda as Hyman asserted, rather than from it as eyewitnesses

testified, one or more shooters would have had to have been firing

toward the car’s driver’s side. Hyman told police he was shot at from

both sides of his car. See supra at 8. But that account is convincingly

belied by the complete lack of bullet marks on the Mazda’s driver’s

side. Nor were there bullet marks on the car’s rear to support

Hyman’s story that the men who ambushed him first fired from that

direction.

54

In sum, the totality of ballistic evidence indicates a gunfire

exchange on March 10, not a one‐sided ambush.

As for other evidence, not admitted at trial—such as the

Whitmore, Howard, and Tiffany Weeks statements—we do not here

assume a reasonable juror’s likely reliance on those statements in

finding Hyman guilty. We note only that the statements do not

support his claim of actual innocence.

Any trial perjury is a serious matter and nothing mitigates

Ellis’s willingness to lie under oath—a willingness she appeared to

maintain, at least in part, even at the habeas hearing. Nevertheless,

where, as here, a witness recants a trial identification, not because the

witness knows the accused not to be the person firing a gun during a

shootout, but because the witness did not see the shootout at all, that

new evidence is far less compelling in demonstrating actual

innocence than that in Schlup, House, and Rivas. In light of petitioner’s

own admission that he was the sole occupant of the green car that was

the focal point of the shootout; three eyewitnesses’ testimony to

seeing flashes of gunfire coming from that car or its occupant; and

ballistic evidence indicating that bullets were fired from, not just at,

the car, we cannot conclude that, upon learning of the Ellis

recantation, it is more likely than not that “no reasonable juror”

would still find Hyman guilty beyond a reasonable doubt of the

charged crimes.

Accordingly, we conclude that Hyman has not made the actual

innocence showing necessary to pass through the narrow gateway for

55

federal habeas review of his procedurally barred Sixth Amendment

claim.30

CONCLUSION

To summarize, we conclude:

1. There are no categorical limits on the types of evidence that

can be offered to demonstrate actual innocence and, thus,

the district court did not err in considering impeachment

evidence.

30Because Hyman did not carry his gateway burden, the district court should not have

decided—and we need not review—his barred Sixth Amendment claim. We, nevertheless,

note that the merits of that claim are not apparent.

First, it is not clearly established by Supreme Court precedent that a fee dispute between a

defense attorney and a potential witness gives rise to an “actual conflict” of interest that

allows a petitioner to claim ineffective assistance of counsel without showing prejudice. In

Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980), the Court recognized multiple concurrent

representations to give rise to an actual conflict, but in Mickins v. Taylor, 535 U.S. 162 (2002),

it cautioned against an “expansive application” of Sullivan to such circumstances as when

“representation of the defendant somehow implicates counsel’s personal financial

interests,” Mickins v. Taylor, 535 U.S. at 174–75. In Tueros v. Greiner, 343 F.3d 587 (2d Cir.

2003), this court stated that “we must look to Sullivan, not . . . Mickens” for “‘clearly

established Federal law,’” id. at 593. Nevertheless, we have since expressly relied on

Mickens in refusing to extend Sullivan to circumstances involving an attorney’s ethical

obligation to correct false testimony. See Torres v. Donnelly, 554 F.3d 322, 326 (2d Cir. 2009).

Thus, no clearly established Supreme Court precedent establishes an actual conflict of

interest here.

Second, even if the circumstances indicated such a conflict, Hyman would have to show

that it “‘adversely affected his lawyer’s performance.’” Strickland v. Washington, 466 U.S.

at 692 (quoting Cuyler v. Sullivan, 446 U.S. at 350). The state court found that Hyman failed

to do so because the Hinkson and Sanders affidavits allowed only speculation as to why

trial counsel had not called Hinkson. The conclusion cannot be deemed an unreasonable

application of clearly established law because Hinkson’s own photographs seem to refute,

rather than support, his opinion that it was impossible to see the shootout from the third‐

floor hallway window of 1540 Hassock Street. In these circumstances, the decision to

forego calling a particular witness is generally a matter of strategy falling within the wide

range of reasonable professional assistance. See Greiner v. Wells, 417 F.3d 305, 323 (2d Cir.

2005); see also Bell v. Cone, 535 U.S. 685, 701–02 (2002).

56

2. The district court did not clearly err in finding some of the

new evidence Hyman offered to support his actual

innocence claim credible.

3. Even deferring to that credibility finding, however, on de

novo review, we conclude that Hyman has not made the

compelling showing of actual innocence necessary for

merits review of his procedurally barred Sixth Amendment

claim.

a. The credible new evidence showed only that a

recanting trial witness did not view the shootout at

issue in the charged crimes, not that Hyman did not

or could not have committed those crimes as

indicated by new evidence found compelling in

Schlup, House, and Rivas.

b. The totality of the evidence nevertheless showed:

i. Hyman’s admitted presence at the crime scene

as the sole occupant of the dark green car that

was the focus of the shootout,

ii. Three eyewitnesses, viewing the shootout from

difference vantage points, each saw gunshots

fired from the direction of that car,

iii. Ballistic evidence strongly corroborates that

gunshots were fired from, not only at, Hyman’s

car, and

iv. No evidence (except for Hyman’s own self‐

serving account) supports his ambush claim.

57

On this record, we cannot conclude that, upon learning of the

recanted trial identification by a witness who had not seen the

shootout, it is more likely than not that no reasonable juror would find

Hyman guilty beyond a reasonable doubt.

Accordingly, the judgment of the district court is REVERSED

and the petition for a writ of habeas corpus is DISMISSED.

58

DENNIS JACOBS, Circuit Judge, concurring:

I subscribe to the meticulous opinion of the Court.

The issue of actual innocence is an uncomfortably close question here. Since,

in my view, Hyman’s underlying claim of ineffective assistance of counsel fails,

Hyman’s inability to establish the gateway claim of actual innocence does not alter

the result. Still, it bears notice that actual innocence is a hurdle raised high by

precedents, presumptions, standards of review, and strict deference to state court

rulings that (in my view) command deference without necessarily earning assent.

The new evidence propounded by Hyman amputates chunks of the

prosecution case presented at trial. Hyman was certainly present; but Ellis,

apparently the only witness who testified about seeing seen Hyman at the scene,

credibly recanted her testimony that she saw him fire a gun; moreover, she

testified that she was threatened with a gun to inculpate Hyman. And although

the district court was skeptical of Ellis’s account of the gunman, the thrust of her

testimony is supported by other evidence adduced by Hyman: Benitez’s testimony

that Ellis and Ellis’s boyfriend asked Benitez to lie about what she saw the night

of the shooting. These recantations raise nagging doubts when considered with

the disturbing fact that the gun supposedly used by Hyman just before he fled the

scene by car was found in the spare‐wheel well of the locked trunk of someone

else’s car parked at the scene.

As the Court’s opinion makes plain, Hyman’s actual innocence claim is

“credible.” Op. at 41. However, the limits on our review compel the conclusion

that the evidence is insufficiently “compelling” to clear the gateway finding of

actual innocence. We are forced to this conclusion because, as the Supreme Court

has instructed, it is not enough to show that the prosecution’s case is lacking: a

petitioner must set forth evidence of “factual innocence, not mere legal

insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). This standard

defeats Hyman’s claim. But it is worth mentioning that, if Hyman were on trial

today and the prosecution’s case were critically impaired as it now is, Hyman

would not have to establish his own innocence.

We are required to give deference and to observe these strong limitations on

our own power. But we are not required to do so without disquiet. I have a strong

doubt that the victim was killed by a bullet fired by Hyman from a gun that

unaccountably turned up hidden in a place inaccessible to him. I concede that that

doubt is not enough.

* * *

I commend this case to the attention of the Governor, who alone has power

to grant relief if relief is justified. See, e.g., Fox v. Johnson, 832 F.3d 978, 990 (9th

Cir. 2016) (Hurwitz, J., concurring). In making that determination, the Governor’s

inquiry would be greatly advanced by the detailed account of facts in the opinion

of the Court.