15-2269-pr
Santana v. Lee

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
9th day of March, two thousand seventeen.

Present:   ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

ALBERT SANTANA, JR.,

                              Petitioner-Appellant,
                      v.                                                   15-2269-pr

WILLIAM LEE,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:      Daniel M. Perez, Newton, NJ.

Appearing for Appellee:       Alyson J. Gill, Assistant Attorney General (Barbara D.
                              Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor
                              General for Criminal Matters, on the brief), for Eric T.
                              Schneiderman, Attorney General of the State of New York, New
                              York, NY.

      Appeal from the United States District Court for the Northern District of New York
(Mordue, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

       Albert Santana, Jr. appeals from the July 2, 2015 memorandum-decision and order of the
United States District Court for the Northern District of New York. (Mordue, J.) adopting the
magistrate judge’s report and recommendation denying his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

       On habeas review, “a determination of a factual issue made by a State court shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1). The applicant bears “the burden of rebutting the
presumption of correctness by clear and convincing evidence.” Id. “A state court decision is
based on a clearly erroneous factual determination if the state court failed to weigh all of the
relevant evidence before making its factual findings.” Lewis v. Conn. Comm’r of Corr., 790 F.3d
109, 120 (2d Cir. 2015) (internal quotation marks omitted).

       To establish a violation of Brady v. Maryland, 373 U.S. 83 (1963), a defendant must
show that: (1) the Government suppressed evidence, either willfully or inadvertently; (2) the
evidence at issue is favorable to the defendant; and (3) the failure to disclose this evidence was
material, i.e., it resulted in prejudice to the defendant. Lewis, 790 F.3d at 123.

        Santana argues that the district court erred in holding that the state court’s conclusion that
prosecutors turned over Brady material was not a clearly unreasonable determination of the facts.
Specifically, Santana alleges that the prosecution suppressed information regarding the New
York arrest of Anthony Edwards, an eyewitness who, while being cross-examined by Santana’s
trial counsel, identified Santana as the man who shot and killed one of the victims. There is no
argument as to whether Edwards’s New York arrest, and his subsequent plea of guilty to felony
theft of property, constitute impeachment evidence that would have been favorable to Santana.
See United States v. Estrada, 430 F.3d 606, 621 (2d Cir. 2005) (“[T]heft crimes, and other
crimes involving stealth, nonetheless bear on a witness’s propensity to testify truthfully.”).

        The record establishes that the trial court ordered the district attorney to provide defense
counsel with either a NYSID sheet or certified copy of all convictions for each witness; there is
nothing in the record to indicate that the state failed to comply with the trial court’s order, and
the district attorney’s file included Edwards’s conviction sheet referencing both his Florida
convictions and pending New York felony matters. This is sufficient to support the county
court’s conclusion that the state provided the requisite Brady material. Santana is correct that the
evidence is thin: there is no direct evidence that the material was in fact provided. But there is
also no direct evidence that the material was not provided: Santana argues the material was not
provided because defense counsel failed to question Edwards regarding his pending New York
felonies but did question him regarding old Florida convictions. Santana cannot sustain his
burden of demonstrating that the county court’s factual determination that the state disclosed
Edwards’s pending felony charges is clearly erroneous.

        Even assuming arguendo that the state did not turn over a record of Edwards’s New York
arrest and guilty plea, Santana cannot show that this failure was material, i.e., it resulted in


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prejudice to the defendant. See Lewis, 790 F.3d at 123. “The question is not whether the
defendant would more likely than not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy
of confidence.” Leka v. Portuondo, 257 F.3d 89, 104 (2d Cir. 2001) (quoting Kyles v. Whitley,
514 U.S. 419, 434 (1995)). “[A] new trial is generally not required when the testimony of the
witness is ‘corroborated by other testimony’ or when the suppressed impeachment evidence
merely furnishes an additional basis on which to impeach a witness whose credibility has already
been shown to be questionable.” United States v. Jackson, 345 F.3d 59, 74 (2d Cir. 2003)
(citations omitted).

         While Edwards was the only eyewitness who testified Santana was the shooter as to that
incident, it cannot be said that impeaching Edwards on his New York arrest and guilty plea
would have led to a “reasonable probability” of a different result. First, Santana was charged
with felony murder, which means that the jury only had to find that he was one of the robbers
and that the victim died in the course of the commission of the crime. The jury did not have to
find Santana was the shooter to convict him of felony murder. Second, it is difficult to see how
the evidence of the New York arrest and guilty plea would materially undermine Edwards’s
credibility. There is no evidence that Edwards provided his testimony in exchange for any
consideration on his state felony charges: he testified pursuant to a subpoena. Prior to identifying
Santana on cross examination, Edwards did not provide police or prosecutors with a description
of the shooter. The prosecution called Edwards primarily for the purpose of identifying the
license plate number of the car in which the assailants fled from the shooting. Defense counsel
cross examined Edwards extensively regarding his Florida convictions. Indeed, it was defense
counsel’s theory that Edwards only identified Santana on cross examination because Edwards
was angry about the extensive cross-examination regarding the Florida convictions. Santana
accordingly cannot show that the information about Edwards’s New York arrest and guilty plea
was material.

        We have considered the remainder of Santana’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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