16-1532-pr
Momplaisir v. Capra

                            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
12th day of April, two thousand eighteen.

Present:         JOHN M. WALKER
                 ROSEMARY S. POOLER,
                           Circuit Judges.
                 DENISE COTE,1
                           District Judge.

_____________________________________________________

EDDY MOMPLAISIR,

                              Petitioner-Appellant,

                       v.                                                  No. 16-1532-pr

MICHAEL CAPRA,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:      Bryan J. Leitch, Morrison & Foerster LLP (Marc A. Hearron, on
                              the brief), Washington, D.C.




1
 Judge Denise Cote, United States District Court for the Southern District of New York, sitting
by designation.
Appearing for Appellee:       Margaret Cieprisz, Assistant Attorney General, Office of the
                              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, Albany, N.Y.

Appeal from the United States District Court for the Southern District of New York (Crotty, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED IN
PART, VACATED IN PART, and REMANDED.

        Petitioner-Appellant Eddy Momplaisir appeals from the March 17, 2016 judgment of the
United States District Court for the Southern District of New York (Crotty, J.), denying his
petition for writ of habeas corpus under 28 U.S.C. § 2254. Momplaisir is in custody pursuant to
a judgment of the Supreme Court of the State of New York, New York County, following
convictions for a forcible rape on or about January 4, 2006, for which he was sentenced
principally to 15 years’ imprisonment. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.
        Pursuant to this Court’s certificate of appealability, Momplaisir has raised three
arguments regarding his trial counsel’s allegedly ineffective performance in preparation for trial:
(1) that his lawyer failed to consult a rebuttal expert to challenge the state’s DNA expert
regarding the presence of his DNA on his own boxer shorts; (2) that his lawyer failed to seek the
complainant’s medical records; and (3) that his lawyer failed to investigate whether there were
additional witnesses that could testify to the existence of a romantic relationship between
Momplaisir and the complainant. The state contends each of these arguments is procedurally
barred and meritless.
         These three arguments are not procedurally barred from federal habeas review for failure
to raise them on direct appeal. The state court barred each of these claims under CPL
§ 440.10(2)(c); the key requirement for application of the provision is that the facts supporting
the claim must be apparent from the trial record, making that claim capable of review on direct
appeal. That requirement was not met in this case for these three claims. Claims of inadequate
investigation based largely or entirely on out-of-court conduct are only rarely reviewable on the
trial record, and this is not such a case. See Fulton v. Graham, 802 F.3d 257, 263-64 (2d Cir.
2015) (“Only in cases in which the trial record clearly reflects the adequacy of counsel’s
performance has § 440.10(2)(c) been applied to bar federal review.”). Because each of these
claims “ultimately turns on facts appearing outside the record,” the state court’s application of
this procedural bar to these claims was exorbitant, rendering it inadequate to preclude federal
review. Pierotti v. Walsh, 834 F.3d 171, 179 (2d Cir. 2016); see Fulton, 802 F.3d at 263.
Notably, although the state defends the application of these procedural bars on appeal, the state
itself expressly waived the procedural bar as to the third claim below.




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        The parties agree that, if these claims are not procedurally barred, they are reviewed de
novo. To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that
his counsel’s representation “fell below an objective standard of reasonableness”, and (2) that he
suffered prejudice, which requires a showing that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In order for a petitioner to establish an
entitlement to an evidentiary hearing, he must show that his allegations, taken as true, would
entitle him to federal habeas corpus relief. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007).
These allegations must be supported by “specific facts which he is in a position to establish by
competent evidence,” and “hearsay statements will not normally entitle the applicant to a
hearing.” LoCascio v. United States, 395 F.3d 51, 57 (2d Cir. 2005) (citation omitted)
(addressing 28 U.S.C. § 2255 petition). A petitioner, however, “may need only to identify
available sources of relevant evidence rather than obtain it . . . or seek a discovery order from
the court.” Puglisi v. United States, 586 F.3d 209, 213-14 (2d Cir. 2009) (addressing § 2255
petition).
        Momplaisir’s claims related to the inadequate investigation of the DNA evidence and the
complainant’s medical records do not merit an evidentiary hearing, because the allegations
underlying the claims, taken as true, do not establish prejudice under Strickland. On cross-
examination, defense counsel established that it would not be unusual to find a person’s DNA on
his own underwear. Momplaisir has not adequately shown that any additional expert could have
cast significant additional doubt on the import of this evidence beyond what he had already
established. Nor is this evidence material to the defense offered at trial.
       Similarly, the claim regarding the investigation into the complainant’s gynecological
records is too sparsely supported to show prejudice, and therefore does not merit an evidentiary
hearing. Although petitioner contends that his counsel should have obtained complainant’s
records of past serious gynecological problems, he has failed to articulate what relevant evidence
these medical records could have contained, or how any medical problem complainant had could
have provided an alternate explanation for the visible, recent abrasions that the state’s expert
observed and described as consistent with forcible sex. Accordingly, petitioner is not entitled to
habeas relief on this ground.
         Petitioner’s final claim, regarding counsel’s alleged failure to interview witnesses who
would testify to the existence of a romantic relationship between him and the complainant, may
merit an evidentiary hearing. Petitioner’s allegations, taken as true, go to the heart of his
defense. The existence of a long-term intimate relationship between complainant and petitioner,
in addition to increasing the likelihood that any sexual contact was consensual, would have been
relevant to the complainant’s credibility, and to the complainant’s motivation to fabricate the
charges. Accordingly, if counsel failed to reasonably investigate whether such witnesses existed,
and what they could testify to, that could constitute deficient performance and have resulted in
prejudice. On remand, the district court should determine whether petitioner has shouldered his
burden to establish his entitlement to an evidentiary hearing, in view of the standards above, and
if so, to hold that hearing.



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        We have considered Momplaisir’s remaining arguments and find them to be without
merit. Accordingly, the judgment of the district court is hereby AFFIRMED IN PART and
VACATED IN PART, and the cause is REMANDED for further proceedings consistent with
this Order.



                                                FOR THE COURT:
                                                Catherine O’Hagan Wolfe, Clerk




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