Lopez v. Miller
MEMORANDUM AND ORDER: For the reasons set forth in the attached Memorandum and Order, (1) Lopez is immediately and unconditionally RELEASED from any form of State custody; (2) the indictment pending against him in People v. Lopez , No. 14536 -89 (Kings Sup. Ct.) is DISMISSED; (3) the State of New York is BARRED from retrying him for the August 31, 1989, murder of Elvirn Surria; and (4) the State shall forthwith EXPUNGE Lopez's conviction from its records and all references to him in the public record. Ordered by Judge Nicholas G. Garaufis on 3/20/2013. (Edelman, Keith)
UNITED STATES DI STRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
02-CV-3988 (NGG) (LB)
-againstDAVID L. MILLER, Superintendent, Eastern
NICHOLAS G. GARAUFIS, United States District Judge.
Having granted William Lopez’s Petition for Writ of Habeas Corpus, the court now
decides what final remedy to award. For the reasons set forth below, (1) Lopez is immediately
and unconditionally RELEASED from New York State (“the State”) custody; (2) the indictment
pending against him in New York Supreme Court, Kings County is DISMISSED; (3) the State is
BARRED from retrying him for the August 31, 1989, murder of Elvirn Surria; and (4) the State
shall EXPUNGE Lopez’s conviction from its records and all references to him in the public
On January 16, 2013, the court granted William Lopez’s Petition for Writ of Habeas
Corpus. (Jan. 16, 2013, Mem. & Order.) On January 18, 2013, the court entered judgment and
ordered Respondent to “release Petitioner William Lopez within sixty days unless New York
State has, by that point, taken concrete and substantial steps expeditiously to retry him.” (Jan.
18, 2013, Judgment (Dkt. 127).)
The court will discuss only the background pertinent to the issues addressed in this opinion. Additional
background can be found in the court’s decision granting Lopez’s Petition for Writ of Habeas Corpus. (See Jan. 16,
2013, Mem. & Order (Dkt. 124).)
Sixty days have passed, and Respondent has not submitted proof of any steps (let alone
concrete and substantial ones) it has taken to retry Lopez. To the court’s knowledge, New York
State has done no more than arraign Lopez in the days following the court’s grant of Lopez’s
Petition, during which he was released on his own recognizance with the State’s consent. See
People v. Lopez, No. 14536-89 (Kings Sup. Ct.). The court must now determine what final
remedy to fashion.
SCOPE OF HABEAS RELIEF
The Supreme Court has long instructed that habeas corpus relief must be applied with an
eye toward “the ends of justice.” Sanders v. United States, 373 U.S. 1, 12 (1963). It also has
recognized that federal courts have “broad discretion” in fashioning an appropriate remedy upon
a grant of habeas corpus relief. Hilton v. Braunskill, 481 U.S. 770, 775 (1987). The general
habeas corpus statute, 28 U.S.C. § 2243, authorizes district courts to dispose of a habeas petition
“as law and justice require.” Indeed, “a federal court possesses power to grant any form of relief
necessary to satisfy the requirement of justice.” Levy v. Dillon, 415 F.2d 1263, 1265 (10th Cir.
1969) (emphasis added).
This authority gives a federal district court the power to award a particularly
“extraordinary remedy”: an order that unconditionally releases the habeas petitioner from
custody and bars any retrial in state court. Simmons v. Reynolds, 898 F.2d 865, 869 (2d Cir.
1990). In Morales v. Portuondo, 165 F. Supp. 2d 601 (S.D.N.Y. 2001), Judge Chin recognized
federal courts have barred retrial of successful habeas petitioners in only the rarest
of circumstances. The courts have done so in three situations: (1) where the act
of retrial itself would violate petitioner’s constitutional rights, for example, by
subjecting him to double jeopardy; (2) where a conditional writ has issued and the
petitioner has not been retried within the time period specified by the court; and
(3) “where the petitioners had served extended and potentially unjustifiable
periods of incarceration before the writ was granted.”
Id. at 609 (quoting Latzer v. Abrams, 615 F. Supp. 1226, 1230 (E.D.N.Y. 1985)); see also Jones
v. Cain, 600 F.3d 527, 524 (5th Cir. 2010) (“In rare circumstances, a habeas court can end a state
criminal proceeding as part of the habeas remedy.”); Douglas v. Workman, 560 F.3d 1156, 1176
(10th Cir. 2009) (“Barring a new trial may be . . . a permissible form of relief when ‘other
exceptional circumstances exist such that the holding of a new trial would be unjust.’” (citation
omitted)); Garcia v. Portuondo, 459 F. Supp. 2d 267, 294 (S.D.N.Y. 2006) (“A court may bar
retrial . . . even where the constitutional violation is capable of correction, but ‘where the petition
[has] served [an] extended and potentially unjustifiable period  of incarceration before the writ
was granted.’” (alterations in original) (citation omitted)); cf. United States ex rel. Schuster v.
Vincent, 524 F.2d 153, 154, 158, 162 (2d Cir. 1975) (ordering a habeas petitioner’s immediate
release and absolute discharge where he had been confined in a state hospital for thirty-one years
without opportunity for a sanity hearing and he had been in prison for a total of forty-four years).
In Morales, Judge Chin held that the petitioners’ due process rights were violated when
the state trial court “declined to order a new trial in the face of evidence that another individual
had confessed to participating in the murder and exonerated” the petitioners, and granted their
requests for writs of habeas corpus. 165 F. Supp. 2d at 602. Ordinarily, such a violation is
remedied by a new trial. Nonetheless, Judge Chin ordered that the petitioners be “granted an
unconditional discharge” and barred the state District Attorney’s Office from re-trying them, and
ordered that records be expunged for three reasons: (1) “on the record . . . no reasonable jury
could convict [the petitioners] of murder; indeed, the evidence strongly suggests that they are
innocent”; (2) the petitioners had “been severely prejudiced by the passage of time[ in that] they
‘have served extended and potentially unjustified periods [of thirteen years’] incarceration’ and
their ability to defend against the charges in any new trial has been hampered, at least in some
respects”; and (3) “certain aspects of the District Attorney’s Office’s handling of this matter are
troubling.” Id. at 609.
With these legal principles in mind, the court turns to the instant case.
Shortly after this court granted Lopez’s Petition, the parties submitted letters disputing
the appropriate remedy. Lopez asked that the court modify its January 16, 2013, conditional
release and “order Mr. Lopez’s immediate release and bar the state from retrying Mr. Lopez if it
does not take concrete and substantial steps to do so within thirty days.” (Jan. 18, 2013, Pet. Ltr.
(Dkt. 126) at 2.) Respondent objected to any order barring a retrial, arguing that: (1) the court
“has no authority to bar the State from retrying petitioner merely because the State does not
comply with a time limit set by the district court”; (2) “there are no circumstances in this case
that would justify an order barring a retrial” because “the remedy for [a successful ineffective
assistance of counsel claim] is a new trial”; and (3) “[t]he State should be permitted to pursue
further investigation of this case [and/or proceed with its appeal to the Second Circuit] rather
than to proceed with an immediate retrial.” (See Jan. 22, 2013, Resp. Ltr. (Dkt. 128) at 2.) At a
January 24, 2013, conference, this dispute became temporarily irrelevant when the parties agreed
that Lopez would be arraigned in New York State court on the open indictment, where the State
would consent to his release on his own recognizance. The State, however, remained under its
obligation to take concrete and substantial steps to try him within sixty days. (See Jan. 18, 2013,
Having considered the parties’ positions and the events that have since transpired, the
court has determined in its broad discretion that law and justice require that: (1) Lopez be
unconditionally released from State custody; (2) the pending State murder indictment against
him be dismissed; (3) the State be barred from retrying him for murder of Elvirn Surria; and (4)
the State expunge Lopez’s conviction from its records and all references to him in the public
record. Three considerations support this conclusion.
First, it is clear that the State has failed to take “concrete and substantial steps . . . to
retry” Lopez within the timeframe explicitly required. (Id.) To date, the State has arraigned
Lopez on the outstanding indictment, but has not offered any other proof that it intends to
promptly retry him. Its silence these past sixty days speaks volumes.
Second, the court is convinced that this is one of the extraordinary cases that warrants an
unconditional discharge with no future threat of retrial. 2 For one thing, as mentioned above,
aside from a pro forma arraignment, the State has failed to take any action evidencing its desire
(or ability) to retry Lopez. See Morales, 165 F. Supp. 2d at 609 (recognizing that federal courts
have barred retrials where “a conditional writ has issued and the petitioner has not been retried
within the time period specified by the court”).
More importantly, the troubling circumstances of this case warrant such an order. As
should be evident from its opinion that granted the writ, the court considers this case to be
nothing short of exceptional. Without reiterating in detail the basis of its decision, the court has
concluded that due to the errors of a State court judge, a State prosecutor, and counsel, Lopez
was subjected to an unconstitutional deprivation of liberty for twenty-three years. (See generally
Contrary to Respondent’s contention (see Jan. 22, 2013, Resp. Ltr. at 2), federal district courts do have the
power to prevent retrial, even where the underlying constitutional violation is ordinarily remedied by a new trial.
See Garcia, 459 F. Supp. 2d at 294; Morales, 165 F. Supp. 2d at 609; see also DiSimone v. Phillips, 518 F.3d 124,
127 (2d Cir. 2008) (“It is true that in special circumstances federal courts may bar retrial of a successful habeas
corpus petitioner without his having first sought protection from retrial in the state courts.”). Indeed, in Latzer v.
Abrams, 615 F. Supp. 1226 (S.D.N.Y. 1985), cited by Respondent (see Jan. 22, 2013, Resp. Ltr. at 2), the court
declined to bar retrial in part because the petitioner had not “served [an] extended and potentially unjustifiable
period of incarceration before the writ was granted.” 615 F. Supp. at 1230. Unfortunately, unlike the petitioner in
Latzer, Lopez has served an extended and unjustifiable period of incarceration.
Jan. 16, 2013, Mem. & Order.) This weighs strongly against allowing the State to conduct a
retrial. See Morales, 165 F. Supp. 2d at 612 (barring retrial in part because the petitioners had
“served almost 13 years in prison for a crime [the court does] not believe they committed” and
the record contained “a number of troubling indications that the prosecution was more intent on
protecting a conviction than in seeing that justice was done”). And as evidenced by the State’s
failure to demonstrate “concrete and substantial” steps taken towards Lopez’s retrial, the court
finds it virtually impossible that a fair retrial could occur, given that: (1) over twenty-three years
have passed since the murder of Elvirn Surria; and (2) all of the prosecution’s trial witnesses
have died or are missing. This also counsels against allowing a retrial. 3 See id. at 611 (barring
retrial where “[o]n this record . . . it is hard to imagine that any reasonable jury could convict”).
Any desire by Respondent to “pursue further investigation of this case [and/or proceed
with its appeal to the Second Circuit] rather than to proceed with an immediate retrial” does not
affect the court’s conclusion; if anything, these weigh in favor of allowing Lopez to finally and
fully enjoy the liberty he has been deprived of for the past twenty-three years. As to any
supposed State “investigation” into the facts of this case, its failure to timely take any meaningful
steps since Lopez’s arraignment (or, at a minimum, inform the court of any such steps) is telling.
And if Respondent succeeds on appeal to the Second Circuit (see Notice of Appeal (Dkt. 133)),
then Lopez will placed back into State custody with no retrial necessary. If the court’s decision
is affirmed, then even more time will have passed, casting even further doubt on the State’s
ability to conduct a fair and meaningful retrial. The court will not permit Lopez to be subjected
Respondent has suggested that the State may attempt to retry Lopez “using the trial testimony of any
unavailable witnesses under the former testimony exception to the rule against hearsay” (Jan. 22, 2013, Resp. Ltr.
at 1)—that is, it claims it could attempt a retrial based entirely upon a reading of Janet Chapman’s trial testimony to
the jury. The court cannot imagine how a state prosecutor could stand up in court and claim—in the face of the
overwhelming evidence supporting Lopez’s innocence—that he committed this crime beyond a reasonable doubt. It
was only out of principles of comity and federalism that the court gave the State sixty days to embark on this
pursuit, which the State has appropriately declined to do.
to the uncertainty and negative connotations associated with being an indicted murder suspect
awaiting trial any longer.
Given the unique and troubling nature of this case, “law and justice” require
extraordinary measures. Accordingly, (1) Lopez is immediately and unconditionally
RELEASED from any form of State custody; (2) the indictment pending against him in People v.
Lopez, No. 14536-89 (Kings Sup. Ct.) is DISMISSED; (3) the State of New York is BARRED
from retrying him for the August 31, 1989, murder of Elvirn Surria; and (4) the State shall
forthwith EXPUNGE Lopez’s conviction from its records and all references to him in the public
__/s/ Nicholas G. Garaufis_
NICHOLAS G. GARAUFIS
United States District Judge
Dated: Brooklyn, New York
March 20, 2013
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