Lewis v. Commissioner

Filing 113

RULING ON RESPONDENT'S PROCEDURAL OBJECTIONS: For the reasons given in the attached Ruling, the Court holds that it is procedurally barred from considering Petitioner's perjury claim. The Court holds that it is not procedurally barred from considering Petitioner's Brady v. Maryland claim. This Court will conduct an evidentiary hearing with respect to Petitioner's Brady claim and third-party confession claim. A date and time for the hearing will be set in a subsequent Order. Signed by Judge Charles S. Haight, Jr on February 23, 2012. (Caldwell, M.)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
SCOTT T. LEWIS,
Petitioner,
v.

3:03-cv-00196 (CSH)

COMMISSIONER OF CORRECTIONS,
Respondent.

RULING ON RESPONDENT'S PROCEDURAL OBJECTIONS

HAIGHT, Senior District Judge:
Petitioner Scott T. Lewis is currently incarcerated by the State of Connecticut following his
conviction by a state court jury of murder in 1995. Lewis challenged his conviction in a number of
unsuccessful proceedings in the Connecticut courts, and then filed this federal application for habeas
corpus relief pursuant to 28 U.S.C. § 2854. In this federal habeas application, Petitioner’s attack
upon his state conviction rests on three claims, discussed in detail in Part I, but summarized for
introductory purposes as (1) the Brady claim; (2) the perjury claim; and (3) the third-party
confession claim.
In its responses to Lewis’s habeas Petition, the Respondent State contends that the first two
of these claims are barred by Lewis’s failure to exhaust state remedies and by his procedural default
under state practices. It follows, the State contends, that this federal Court cannot reach the merits
of those claims. As to the third claim, the State urges neither exhaustion nor procedural default, and
acknowledges that the claim is ripe for a hearing on the merits.
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In these circumstances, this Ruling considers only Respondent’s contentions that the first two
claims are barred. On the issues thus drawn, the parties have submitted able briefs and the Court has
heard oral argument. For the reasons that follow, the Court holds that Petitioner’s first (Brady) claim
is not barred, and his first (perjury) claim is barred. The Court neither expresses nor intimates a view
about the merits of any of the claims.
I.

Background
Petitioner is currently incarcerated in the custody of the Connecticut Department of

Corrections. In 1995, he was convicted in state court of two counts of murder and two counts of
felony murder. Specifically, he was convicted of murdering two drug dealers, Ricardo Turner and
Lamont Fields, in October 1990, as was an associate, Stefon Morant. At Petitioner's trial, the state
presented the testimony of another drug dealer, Ovil Ruiz. Ruiz testified inter alia that he drove
Petitioner and Morant to and from the place where the murders were committed, that Petitioner and
Morant's motive in killing the victims was to steal drugs and money from them, and that he saw
Petitioner dispose of the gun used in the murders. On direct appeal, the Connecticut Supreme Court
vacated the felony murder convictions and upheld the murder convictions. State v. Lewis, 245
Conn. 779 (1998) (Lewis I).
In October and November 1999, the Connecticut Superior Court held evidentiary hearings
(the "Morant 1999 hearings") on a petition for a new trial by Lewis’s co-defendant Morant,
following the disclosure of an FBI report that contained interviews with Ruiz in which he recanted
his testimony at Petitioner's trial. At those hearings, Detective Michael Sweeney gave testimony (the
"Sweeney testimony") that assertedly cast doubt on the truthfulness of Ruiz's testimony at Petitioner's
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trial. However, the Superior Court denied Morant’s petition, holding, inter alia, that Sweeney's
testimony did not lead to the conclusion that Ruiz's trial testimony on the important point, the
identity of the killers, was false. Morant v. State of Connecticut, 2000 WL 804695 (Conn. Super.
Ct. June 5, 2000).
On January 9, 2001, Petitioner filed an amended habeas petition in Connecticut Superior
Court alleging the following three claims: (1) newly discovered evidence that a trial witness
committed perjury; (2) the state's failure to provide the defense with exculpatory evidence; and (3)
newly discovered evidence of alibi testimony. The judge in the habeas trial denied the petition.
Lewis v. Warden, No. CV-99-0424021-S, 2001 WL 1203354, at *1 (Conn. Super. Ct. Sept. 17, 2001)
(Lewis II). Following this denial, and in accordance with Connecticut practice, Petitioner filed a
petition for certification to appeal the habeas denial to the Connecticut Supreme Court on September
26, 2001. That petition was denied without comment on October 22, 2001.
Petitioner then filed an uncertified appeal to the Connecticut Appellate Court on November
13, 2001, which was denied on November 19, 2002. Lewis v. Comm'r of Corr., 73 Conn. App. 597
(2002) (Lewis III). Following this denial, Petitioner sought review by the Connecticut Supreme
Court through a petition for certification on November 22, 2002. The Connecticut Supreme Court
denied certification on January 14, 2003 without discussion. Lewis v. Comm’r of Corr., 262 Conn.
938 (2003) (Lewis IV).
Petitioner then filed this federal habeas petition on January 29, 2003, asserting three claims:
(1) he was denied due process because exculpatory evidence was suppressed (the "Brady claim");
(2) his conviction was based on perjured testimony (the "perjury claim"); and (3) his right to present
a defense was violated because a third-party confession was not admitted at trial (the "third-party
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confession claim"). On July 31, 2003, Respondent filed an Answer to Petition for Writ of Habeas
Corpus (the "Answer") [Doc. 14] which, inter alia, made the procedural objections to this Court's
consideration of the Brady and perjury claims that are considered in this Ruling.
II.

Discussion
Respondent objects to this Court's consideration of two of Petitioner's claims, the Brady and

perjury claims, arguing that he (1) failed to exhaust the claims before the Connecticut Supreme
Court, and (2) procedurally defaulted the claims when he appealed the habeas court's dismissal of
his petition to the Connecticut Appellate Court. Respondent argues that these alleged procedural
failings by Petitioner, who was appearing pro se throughout his state habeas proceedings, prohibit
this Court from hearing the merits of the Brady and perjury claims.1 Respondent does not argue that
this Court is prohibited from hearing the merits of the third-party confession claim, which is
therefore not discussed in this Ruling. The Court addresses each objection in turn.
A.

Failure to Exhaust
1.

Legal Standard

Exhaustion of state remedies is a requirement of the federal habeas statute for state prisoners
challenging their custody in federal court. 28 U.S.C. § 2254(b). To satisfy the requirement, the
petitioner must show that the federal claims have been "fairly presented" to the state courts. Daye
v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982). The Second Circuit has established a twopart inquiry to determine whether a petitioner has properly exhausted his federal claims in state
court. The petitioner must have (1) "set forth in state court all of the essential factual allegations
1

The Court is cognizant of its duty to liberally construe pro se pleadings under both
federal and state law. See Estelle v. Gamble, 429 U.S. 97, 106 (1976); Oliphant v. Comm'r of
Corr., 274 Conn. 563, 569 (2005).
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asserted in his federal petition," and (2) "placed before the state court essentially the same legal
doctrine he asserts in his federal petition." Id. at 191-92. A petitioner may meet this threshold
without citing "book and verse on the federal constitution." Picard v. Connor, 404 U.S. 270, 278
(1971). There are several ways by which a petitioner may meet the "fair presentment" requirement,
including:
(a) reliance on pertinent federal cases employing constitutional
analysis, (b) reliance on state cases employing constitutional analysis
in like fact situations, (c) assertion of the claim in terms so particular
as to call to mind a specific right protected by the Constitution, and
(d) allegation of a pattern of facts that is well within the mainstream
of constitutional litigation.
Daye, 696 F.2d at 194.
2.

Analysis

Respondent argues that Petitioner failed to present the Connecticut Supreme Court with
either his Brady or perjury claims when he petitioned for certification after the denial of his appeal
in Lewis III. Resp. Br. at 3-7. Respondent points to Lewis’s November 22, 2002 “Petition for
Certification to the Supreme Court,” which is Appendix K to Respondent’s Resubmission [Doc.
109]. It is appropriate to focus upon that document, which I will call “the November 2002 Petition,”
because the parties agree it is determinative of whether Lewis’s present federal claims were “fairly
presented” to the Connecticut courts for exhaustion purposes. These exchanges occurred between
the Court and Petitioner’s counsel during the oral argument:
THE COURT: So, is it your view that it is the contents of the
petition for certification to the Supreme Court, November 22, 2002,
which really governs the exhaustion analysis? Is that so, rather than
the Supreme Court’s opinion in 1998? I’m only talking exhaustion
now.

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MS. WASHINGTON [counsel for Petitioner] Correct. . . . I
will note that exhaustion of the third claim, the one regarding thirdparty culpability, does relate back to the direct appeal. . . . Therefore,
the petition for certification, the ne from November 22nd of 2002, is
the only document at issue now before the court, regarding
exhaustion. . . .
THE COURT: All right. So as far as exhaustion is concerned,
the alpha and omega of it is found in the petition for certification?
MS. WASHINGTON: Correct.
Transcript, Hearing on Petition for Habeas Corpus Before the Honorable Charles S. Haight, Jr.,
October 26, 2011, at 29-31.
Respondent relies upon the Supreme Court's holding that "ordinarily a state prisoner does
not 'fairly present' a claim to a state court if that court must read beyond a petition or a brief (or a
similar document) that does not alert it to the presence of a federal claim in order to find
material, such as a lower court opinion in the case, that does so." Baldwin v. Reese, 541 U.S. 27,
32 (2004). Petitioner's November 2002 Petition to the Connecticut Supreme Court, in
Respondent's view, does not sufficiently identify either the Brady or perjury claims as questions
for review. Respondent's Second Supplemental Memorandum of Law ("Resp. Br.") at 6-7. I do
not agree.
Petitioner clearly stated in his November 2002 Petition "that he had been denied a Federal
Constitutional Right." Id. at 6. (emphasis in the original). Further, the issues that Petitioner
presented under "Issues Presented for Review" referred to "evidence of Ovil Ruiz's untruthfulness
in his statements," and raised the issues of whether the Sweeney testimony "was not suppressed" and
whether it was "undisclosed evidence." November 2002 Petition at 1-2. The references to untruthful
statements and "undisclosed evidence" alert the reader to potential federal constitutional violations.
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Later in that Petition, Petitioner states that Sweeney "came forward with 'exculpatory evidence' that
has been suppressed prior to the criminal trial, direct appeal and the investigation by the Federal
Bureau of Investigation." Id. at 4 (emphasis in the original). In the November 2002 Petition, Lewis
summarized the claims he made to the state habeas court as “alleging his conviction was based on
perjured testimony, the State suppressed exculpatory material and actual innocence.” Id.
A fair reading of Lewis's pro se November 2002 Petition demonstrates that the document
fairly presented to the Connecticut Supreme Court the essential factual allegations that support
Lewis's federal claims of a Brady violation and a conviction obtained by perjured testimony. I hold
that the contents of the November 2002 Petition satisfy the Second Circuit's criteria articulated in
Daye. Consequently Lewis has satisfied his statutory obligation to exhaust these two federal claims
in state court,2 and Respondent’s contention based on exhaustion is rejected.
B.

Procedural Default
1.

Standard of Review

"A federal habeas court lacks jurisdiction to evaluate questions of federal law decided by a
state court where the state court judgment 'rests on a state law ground that is independent of the
federal question and adequate to support the judgment ... unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental miscarriage of justice.'" Green v.
Travis, 414 F.3d 288, 294 (2d Cir. 2005), quoting Coleman v. Thompson, 501 U.S. 722, 729, 750

2

Further, the Court adopts Petitioner's counsel's argument that Respondent has judicially
admitted that Petitioner exhausted his Brady claim in Resp. Br. at 14 (stating "Here, only the
petitioner's Brady claim regarding Sweeney's information has been raised to the Connecticut
Appellate Court and the Connecticut Supreme Court") and in the Answer at ¶ 7.
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(1991). "In particular, a state court procedural default will bar federal habeas review when 'the last
state court rendering a judgment in the case clearly and expressly states that its judgment rests on a
state procedural bar.'" Id. at 294, quoting Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996).
Further, "only a firmly established and regularly followed state practice may be interposed by a State
to prevent subsequent review by [a federal court] of a federal constitutional claim." Ford v. Georgia,
498 U.S. 411, 423-24 (1991).
2.

Analysis

Respondent argues that Petitioner procedurally defaulted on his Brady and perjury claims
because on his appeal to the Connecticut Appellate Court, i.e., Lewis III, he "(1) failed to provide
an adequate record when he deliberately chose not to file the transcripts of the state habeas corpus
proceeding and (2) failed to brief the issue of the denial of certification of appeal." Resp. Br. at 11.
a.

Failure to File Transcript

Respondent argues that Petitioner should be procedurally barred from asserting his Brady and
perjury claims because he did not file the complete transcript of his habeas trial with the Connecticut
Appellate Court. The Appellate Court explicitly based its dismissal on the failure to file that
transcript. Lewis III at 598. According to the Appellate Court, "[u]nder those circumstances, we
can only speculate as to the existence of a factual predicate for the habeas court's rulings." Lewis III
at 599. It held that this default was too serious to fall within the latitude granted to pro se parties.
Id. Petitioner argues that no appellate-court rule required him to file a transcript, especially since
the habeas court—in Lewis II—had only discussed documentary evidence. Petitioner's Updated
Response to Respondent's Supplemental Memorandum of Law ("Pet. Br.") at 40-45.
Under Rule 61-10 of the Connecticut Rules of Appellate Procedure, it is the appellant's
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responsibility to provide an adequate record for review. Under Rule 63-8, the appellant must file
those portions of the transcript of the trial court proceeding that he deems necessary for review.
However, under Rule 63-4(a)(3), the appellant may file a statement that no transcript is necessary.
Petitioner did not file any part of the transcript, but did file a letter saying that no transcript was
necessary.
Petitioner failed to comply with the adequate-record rule only if the transcript was necessary
to provide the Appellate Court with an adequate record for review. The Appellate Court held that
a full transcript was required. However, that does not end the present analysis, because the Appellate
Court's inaccurate characterization of the issues leaves this Court to determine whether the transcript
was necessary for review of the Brady and perjury claims. The Appellate Court, adopting its
characterization of the issues directly from Respondent's appellate brief, described the issues raised
as whether the court acted improperly "(1) in concluding that the testimony of Michael Sweeney, a
police detective, did not constitute newly discovered evidence and (2) in failing to draw an adverse
inference against the respondent commissioner of correction when Ovil Ruiz, a witness at the habeas
trial, invoked his fifth amendment privilege against compelled self-incrimination." Lewis III at 597.
It is not clear whether the Appellate Court was aware that Petitioner had also raised the Brady and
perjury issues on appeal or whether it was misled by Respondent's brief. Certainly, Petitioner had
raised those issues in his appeal. See, e.g., Appeal Brief of the Plaintiff-Appellant With Attached
Appendix,3 Statement of Issues (unpaginated).
With respect to the Brady claim, it is possible that the Appellate Court could have reversed
3

A copy of that brief ("App. Br.") constitutes Appendix H to Respondent's Resubmission
[Doc. 109]. A copy of Petitioner's Reply Brief of the Appellant – Plaintiff With Attached
Appendix ("Reply Br.") constitutes Appendix J to Respondent's Resubmission.
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the habeas court solely as a matter of law, for which it would not need the habeas trial transcript.
The habeas court's holding on the Brady claim was as follows: "This court finds that not only was
all exculpatory evidence furnished to the defense, but also the alleged evidence was available by due
diligence to the defense, and the petitioner was obliged to raise his claims before the trial court or
the Appellate Court." Lewis II at 7 (emphasis added). Petitioner argued that the imposition of a duediligence requirement was legal error. App. Br. at 8-9. "In United States v. Bagley, 473 U.S. 667
(1985)– the court held that regardless of request, favorable evidence is material, and Constitutional
error results from its suppression by the government." Id. at 8 (emphasis in original). Petitioner was
correct. See Banks v. Dretke, 540 U.S. 668, 691 (2004) (laying out the essential elements of a Brady
claim). Petitioner supplied a copy of the habeas court's Memorandum of Decision, which might have
enabled the Appellate Court to decide a purely legal question.
However, that conceptual possibility encounters the difficulty resulting from the habeas
court's failure to make it clear what exactly it was holding when it dismissed the Brady claim. The
habeas court stated that "[t]he claim of the petitioner that exculpatory evidence was not provided to
the defense prior to the trial in 1995, has not been proven." Lewis II at *3. In context, it seems
likely, though not certain, that the court's finding was that the information in question was not
exculpatory. On the other hand, the clause stating that the evidence was available to the defense by
due diligence seems to imply that the evidence was, or might have been, exculpatory, at least as
impeachment evidence, and Petitioner's problem was that he had not exercised due diligence to
obtain it.
Likewise, the Appellate Court did not make it clear that it was finding that the Brady claim
could not be decided as a matter of law. In fact, it is not clear that the Appellate Court was aware
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of the Brady claim or Petitioner's argument against it, a point that is the more telling because in this
respect that Court followed Respondent's incomplete description of the issues. Without a clear
explanation of the basis for the decisions of either the habeas court or the Appellate Court on the
Brady claim, this Court cannot be certain whether the Appellate Court could have ruled on the Brady
claim as a matter of law with the materials supplied, thereby absolving Lewis of any adequate-record
transgression.
In the absence of such clarity, this Court declines to hold that Petitioner's Brady claim was
procedurally defaulted by failure to comply with the adequate-record rule.
Moreover, the adequate-record rule constitutes an adequate ground to bar federal review only
if the Appellate Court "clearly and expressly" stated that its decision rested on that rule, Harris v.
Reed, 489 U.S. 255, 269 (1989), and the rule was "firmly established and regularly followed." Ford
v. Georgia, 498 U.S. 411, 423-24 (1991). Although the Appellate Court clearly rested its decision
about the claims it did mention on the adequate-record rule, it is not absolutely clear that it applied
the adequate-record rule to the Brady claim or, if it was not aware of the Brady claim, whether it
would have decided differently if had been aware of that claim. Nor has Respondent established that
the adequate-record rule was "firmly established and regularly followed" in the case of a claim that
arguably raises pure questions of law. See Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) ("the
question is whether application of the procedural rule is 'firmly established and regularly followed'
in the specific circumstances presented in the case").
For these reasons, Petitioner’s Brady claim is not defaulted. I reach a different conclusion
with respect to the perjury claim. Although the Appellate Court did not mention the perjury claim,
its application of the adequate-record rule would certainly have applied as much to the perjury claim
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as to the claims it mentioned. The habeas court's ruling on the perjury claim was based exclusively
on findings of fact. For example, that court found that Ruiz's testimony at the criminal trial was
credible and consistent with other credible evidence, and that Ruiz's statements to the FBI in 1996
were "given under circumstances that are likely to be reliable." Lewis II at *3. Petitioner challenged
the court's ruling on the perjury issue as not supported by the evidence. App. Br. at 2-3.
Because Petitioner's claim to the Appellate Court was that the habeas court's decisions on the
perjury claim was not supported by the evidence, the full transcript was certainly necessary for the
Appellate Court's review. That rule is clearly established and regularly followed. The Connecticut
Supreme Court has squarely held that when an appellant claims that a trial court's decision was not
supported by the evidence, the appellant is required to file a "transcript of all the evidence."
McGaffin v. Roberts, 193 Conn. 393, 409 (1984). "When we are presented with a claim that the
court's decision is not supported by the evidence, our duty on review is to examine not only the
memorandum of decision, but the entire record together with the exhibits and transcripts." Pleines
v. Franklin Const. Co., 30 Conn. App. 612, 615 (1993). "We cannot review a claim of insufficient
evidence where ... we have not been offered the opportunity to review fully all of the evidence which
was before the trial court." In re Lea T., 15 Conn. App. 455, 457 (1988).
Considering the latitude granted to pro se parties, it could perhaps be argued that Petitioner
would have substantially complied with the rule if he had submitted evidence that was sufficient to
enable the Appellate Court to rule on the perjury issue even though he failed to supply any part of
the habeas trial transcript. However, the material Petitioner submitted to the Appellate Court was
not close to being sufficient. At a minimum, that Court could not have known whether there was
other evidence in the record that supported the habeas court's conclusions on the perjury issue with
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the limited material available.
"While we have insisted that the pleadings prepared by prisoners who do not have access to
counsel be liberally construed ... and have held that some procedural rules must give way because
of the unique circumstances of incarceration ... we have never suggested that procedural rules in
ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without
counsel." McNeil v. U.S., 508 U.S. 106, 113 (1993).
This Court concludes that its consideration of the perjury issue is barred by procedural default
based on the adequate-record rule, but that its consideration of the Brady issue is not.
b.

Failure to Brief

Respondent argues that Petitioner is also barred from raising these issues in the present action
by failure to brief the Appellate Court properly when he sought to appeal the habeas court's ruling.
Resp. Br. at 21 et seq. Respondent does not cite Connecticut state authority for a briefing
requirement as such. Instead, Respondent argues that Petitioner failed to follow the procedures for
appealing the habeas court's ruling. However, Petitioner did comply with those procedures.
In order to appeal the habeas court's decision, Petitioner was required by Connecticut General
Statutes § 52-470(b) to file a petition for certification to appeal, which may be directed to the habeas
court or any judge of the Supreme or Appellate Court. On September 26, 2001, he filed such a
petition directed to Justice Katz of the Supreme Court. On October 22, 2001, Justice Katz denied
the petition without explanation. Petitioner then filed an uncertified appeal with the Appellate Court.
The remaining question is whether he complied with the procedure for filing an uncertified appeal.
An uncertified appeal may proceed only if the denial of certification constituted an abuse of
discretion. Simms v. Warden, 230 Conn. 608, 615 (1994). The petitioner bears the burden of
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proving such abuse. Id. at 615-16. If the petitioner makes that showing, he may demonstrate to the
Appellate Court that the decision of the habeas court should be reversed on the merits. Id. at 612.
On this basis, Respondent argues that Petitioner faced a requirement of claiming an abuse of
discretion. Respondent interprets this as a requirement that Petitioner "brief" the claim of abuse of
discretion to the Appellate Court, in order to preserve the issues in his appeal for this Court's review.
However, assuming, without deciding, that there is such a briefing requirement, Petitioner complied
with it.
Specifically, Respondent argues that Petitioner "never mentioned the denial of certification
in his brief to the Appellate Court and did not even attempt to demonstrate that such denial of
certification constituted an abuse of discretion." Resp. Br. at 23. In other words, Petitioner's appeal
was inadequate because his brief failed to make specific reference to Justice Katz's decision denying
certification. The Appellate Court seemed to adopt the same position when it stated that "the
petitioner ... failed to advance any arguments challenging the propriety of Justice Katz's ruling."
Lewis III at 598.
However, because Petitioner briefed the abuse-of-discretion issue, requiring a specific
reference to Justice Katz's ruling elevates form over substance. The Connecticut Supreme Court has
explained what it means to show that the denial of certification to appeal was an abuse of discretion.
The question is whether the appeal is substantively frivolous. "[I]f an appeal is not frivolous, the
habeas court's failure to grant certification to appeal is an abuse of discretion." Taylor v. Comm'r
of Correction, 284 Conn. 433, 448 (2007), quoting Copas v. Comm'r of Correction, 234 Conn. 139,
150-51 (1995). Presumably, this would be equally true of Justice Katz's failure to grant certification.
Thus, the "abuse of discretion" decision involves considering the merits of Petitioner's
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arguments on appeal. Castonguay v. Comm'r of Correction, 300 Conn. 649, 658 (2011). "In
determining whether the habeas court abused its discretion in denying the petitioner's request for
certification, we necessarily must consider the merits of the petitioner's underlying claims to
determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous."
Id., quoting Taylor at 449. Justice Katz's ruling upheld the habeas court's ruling without explanation.
If Petitioner had established that the habeas court's ruling was an abuse of discretion, he would also
have established that Justice Katz's ruling was an abuse of discretion. Petitioner's failure to make
a specific reference to Justice Katz's ruling is merely the failure to invoke certain "magic words" that
need not be rigidly required of a pro se petitioner.
The question, assuming that there is a briefing requirement, is whether Petitioner briefed the
Appellate Court on whether his appeal was frivolous. In determining whether an appeal is frivolous,
the Connecticut courts apply criteria set forth by the United States Supreme Court for consideration
of federal habeas appeals in Lozada v. Deeds, 498 U.S. 430, 431-32 (1991). Only one of the criteria
must be met. "A habeas appeal that satisfies one of the criteria set forth in Lozada ... is not, however,
frivolous." Taylor at 621, quoting Copas at 150-51. The Lozada criteria are: (1) that the issues are
debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; and
(3) that the questions are adequate to deserve encouragement to proceed further. Petitioner did argue
to the Appellate Court that the Brady and perjury issues could be resolved in a different manner.
First, on the Brady issue, Petitioner discussed at some length the alleged suppression of
witness Ovil Ruiz's alleged 1991 admission to a police detective that his testimony implicating
Petitioner was false (App. Br. at 1-3, Reply Br. at 1-4). His "Statement of Issues" included the
question "Whether the habeas court abused its discretion in ruling that former Detective Michael
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Sweeney's testimony ... was not suppressed." He asserted that information regarding Sweeney's
testimony "[w]as not turned over in response to defense motion for disclosure filed March 27, 1997
at the criminal trial." App. Br. at 7. In his reply brief, Petitioner specifically referenced the doctrine
on disclosure of exculpatory evidence from Brady v. Maryland and devoted four pages to discussion
of accusations that the Sweeney evidence was suppressed. Reply Br. at 1-4. Thus, Petitioner's
arguments briefed the Appellate Court on the issue of whether his Brady claim was frivolous.
Petitioner also briefed the issue of whether the state used perjured testimony. In his
"Statement of Issues" he included "Whether the habeas court abused its discretion in ruling that
Detective Michael Sweeney's testimony... failed to prove evidence of Ovil Ruiz's untruthfulness in
his statements." Without using the word "perjury," Petitioner provided a number of examples of
Ruiz's allegedly perjured testimony. Reply Br. at 4-5. Petitioner did not cite the Lozada criteria.
But his arguments clearly were designed to show that his appeal on the perjury issue was not
frivolous.
Petitioner thus did brief the Appellate Court on the issue of whether the denial of certification
was an abuse of discretion. Respondent does not argue that the requirement at issue is a requirement
of adequate or persuasive briefing, rather than merely a requirement of briefing. Resp. Br. at 21-24.
Thus, "failure to brief" is not an adequate ground for denying consideration of the Brady and perjury
issues.

III.

Conclusion
For the foregoing reasons, the Court holds that it is procedurally barred from considering

Petitioner Lewis’s second federal habeas claim, his perjury claim. The Court holds that it is not
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procedurally barred from considering Petitioner’s first claim, his Brady claim.
It follows that this Court will conduct an evidentiary hearing with respect to the Brady claim
and Petitioner’s third claim, which is the third-party confession claim. A date and time for the
hearing will be set in a subsequent Order.
It is SO ORDERED.
Dated: New Haven, Connecticut
February 23, 2012
Charles S. Haight, Jr.
Charles S. Haight, Jr.
Senior United States District Judge

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