Jimenez v. Lilley

Filing 31

REPORT AND RECOMMENDATION re: 1 Petition for Writ of Habeas Corpus filed by Rafael Jimenez. For the reasons set forth above, I recommend that Mr. Jimenez be allowed to pass through the actual innocence gateway to have the merits of his claims heard despite his failure to timely file his habeas petition. However, due to the limited scope of the evidentiary hearing, I decline to address the merits of such claims in this Report and Recommendation. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Alison J. Nathan, Room 2102, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. (Objections to R&R due by 10/24/2017.) (Signed by Magistrate Judge James C. Francis on 10/10/2017) Copies Transmitted this Date By Chambers. (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
RAFAEL JIMENEZ,
: 16 Civ. 8545 (AJN) (JCF)
:
Petitioner,
:
REPORT AND
:
RECOMMENDATION
- against :
:
LYNN LILLEY, Superintendent
:
Woodbourne Correctional Facility, :
:
Respondent.
:
- - - - - - - - - - - - - - - - - -:
TO THE HONORABLE ALISON J. NATHAN, U.S.D.J.:
Rafael Jimenez brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction
following a jury trial in New York State Supreme Court, Bronx
County, for second degree murder.

He argues that: (1) he is

actually innocent; and (2) he was denied due process of law in
violation of Brady v. Maryland, 373 U.S. 83 (1963), as a result of
witness tampering by the police.

The respondent argues, among

other things, that the petition should be denied as time-barred
under the statute of limitations established by the Antiterrorism
and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244(d)(1)
(“AEDPA”).

In response, the petitioner asserts that the petition

is timely, and, if it is not, that any procedural bar is excused
because he is actually innocent.

For the reasons set forth below,

I recommend that the “gateway” actual innocence claim be accepted

1

so that the petitioner’s claims may be considered on the merits.1
Background
A.

The Crime

At approximately noon on June 25, 1992, Carmen Velazquez and
her seven-year-old stepdaughter were on their way to a supermarket
in the Bronx when they passed a group of men standing in front of
a convenience store.

(Tr. at 159-61, 182).2

One of the men from

the group began harassing Ms. Velazquez, “throwing kisses” and
calling her names.

(Tr. at 162, 192-93).

She testified at trial

that was too afraid to look at or respond to her harasser.
162, 181, 188).

(Tr. at

On her return home from the supermarket, she and

her stepdaughter again passed the group of men in front of the
store, and one of the men stepped from the crowd and spit at her.
(Tr. at 162-63, 198).
not look at the men.

Ms. Velazquez testified that she again did
(Tr. at 163, 200).

Shortly thereafter, around 1:00 p.m., Ms. Velazquez spoke on
the phone to her husband –– the victim, Michael Brana –– about the
incident.

(Tr. at 163-64, 201).

Upset, Mr. Brana returned home

from work early, at about 3:00 p.m., and spoke to Ms. Velazquez in
1

Even though I am not resolving the petition on the merits,
I am submitting my findings on the gateway issue now in the form of
a report and recommendation because this is potentially a casedispositive question.
2

“Tr.” refers to the transcript of Mr. Jimenez’s trial in
State court.
2

their apartment building at 1105 Jerome Avenue.
02).

(Tr. at 164, 201-

Mr. Brana then went outside and Ms. Velazquez returned

upstairs to their apartment.

(Tr. at 164, 203).

A short time

later, around 4:00 or 4:30 p.m., Ms. Velazquez joined Mr. Brana
outside, where he was standing, drinking a beer, and watching for
the man who had harassed Ms. Velazquez.
208).

(Tr. at 164-66, 203-04,

At some point, Harry Ramos, an acquaintance, joined them in

front of the building.

(Tr. at 251-52).

He and Ms. Velazquez

urged Mr. Brana to go upstairs and avoid a confrontation.

(Tr. at

166-67, 252, 261). Mr. Brana, still upset, refused. (Tr. at 167).
Shortly
approached.

thereafter,

a

group

of

(Tr. at 167, 215, 245, 252).

approximately

five

men

An altercation ensued,

but the recollections of Mr. Ramos and Ms. Velazquez differ.
According to Ms. Velazquez, a short man stepped forward from
the group, pointed to a man standing behind him, and asked Mr.
Brana if that was the man Mr. Brana was looking for.
210, 218).

(Tr. at 167,

Ms. Velazquez stated at trial that based on the short

man’s accent, she believed the group of men to be Dominican.
at 209-10).
anyone.

(Tr.

Mr. Brana responded that he was not looking for

(Tr. at 167-68).

Then the short man stepped aside and the

man who was standing behind him pulled a gun from his waist and
shot Mr. Brana three times.

(Tr. at 168-70, 211).

Ms. Velazquez

testified that she had an unobstructed view of the shooter’s face
3

for about thirty seconds from a distance of about eleven feet.
(Tr. at 169-71). After the shots were fired, Ms. Velazquez fled to
her apartment building, ran upstairs, and called the police.

(Tr.

at 172). Shortly thereafter, an ambulance transported Mr. Brana to
the hospital, where he later died.

(Tr. at 174).

According to Mr. Ramos, the men, whom he believed to be
Dominican, approached Mr. Brana, and they exchanged words about the
harassment of Ms. Velazquez.
group then punched Mr. Brana.

(Tr. at 252).

One member of the

(Tr. at 252-53, 257).

Mr. Brana put

up his fists and moved toward the man that had punched him, but
that man moved out of the way, exposing the shooter.
54, 257-58).

(Tr. at 253-

Mr. Ramos had known the shooter by the nickname

Monaguillo for one or two years.

(Tr. at 254, 263-65).

According

to Mr. Ramos, the shooter said to Mr. Brana, in Spanish, “[H]ey
cocksucker what is it that you want?”3

(Tr. at 254, 258, 264).

The shooter then pulled a gun from his waistband and shot Mr. Brana
three times.

(Tr. at 253-54, 258).

Mr. Brana then tried to grab

the shooter, who fired a fourth shot into Mr. Brana’s forehead.4
3

Mr. Ramos testified in Spanish at trial; his testimony was
translated to English for the court and the jury. (Tr. at 248).
4

Mr. Ramos’ description of the shooting is consistent with
the trial testimony of Associate Medical Examiner Pierre-Marie
Charles, M.D., who performed the autopsy of Mr. Brana. (Tr. at
274). He testified that Mr. Brana was shot four times: in the left
side of the abdomen, right forearm, right leg, and left side of the
head.
(Tr. at 277-83).
The head wound was surrounded by
4

(Tr. at 258).

Mr. Ramos ran inside after Ms. Velazquez and yelled

for her to call the police.

(DD5 Police Report dated June 26, 1992

(“Ramos DD5”), attached as Exh. 2 to Declaration of Glenn A. Garber
dated Nov. 4, 2016 (“Garber Decl.”), at 1).
B.

Pretrial Identifications

Approximately one-half hour after the shooting, Ms. Velazquez
spoke to Detective Floyd Coor and Detective Kenneth Thompson in her
apartment.

(Tr. at 172, 181-82, 246, 286-88, 324).

She told the

detectives about the shooting and described the shooter as twentyfive to twenty-six years old, about five feet six inches tall, with
three to four inch long black hair worn in a Jheri curl style,
tanned olive-colored skin, and a light mustache and goatee, and
wearing a white tank top and khaki-colored shorts.

(DD5 Police

Report dated June 25, 1992 (“Velazquez DD5”), attached as Exh. 1 to
Garber Decl.; Tr. at 172-73, 177, 212-13, 232-34).
also said that he “[s]eemed Dominican.”

Ms. Velazquez

(Tr. at 232).

Following

the interview, Detective Thompson brought Ms. Velazquez to the 44th
Precinct “Rip Unit” to view photographs, but she was unable to
identify the shooter.

(Tr. at 36, 55-57).

According to Detective

Thompson, Mr. Jimenez’s photograph was not among those she viewed

stippling, indicating that the bullet was fired at close range –approximately two to eighteen inches from Mr. Brana’s head. (Tr.
at 279).
5

that day.

(Tr. at 56-58).

The next day, Detective Thompson spoke to Mr. Ramos.
289-90).

Detective

Thompson

did

not

ask

Mr.

(Tr. at

Ramos

for

a

description of the shooter because Mr. Ramos “knew the subject.”
(Tr. at 62, 290).

Instead, Mr. Ramos was brought into the 48th

Precinct “Catch Unit” to view photographs of potential suspects.
(Tr. at 37-38, 57; Ramos DD5 at 1-2).

According to Detective

Thompson, the photographs Mr. Ramos viewed were different from the
photographs Ms. Velazquez had viewed the day before.
58).

(Tr. at 57-

The photographs were displayed in trays, each containing

several hundred photographs.

(Tr. at 38).

From these, Mr. Ramos

positively identified a photograph of Mr. Jimenez. (Tr. at 39, 5862; Ramos DD5 at 2; Lineup Notes, attached as Exh. 7 to Garber
Decl., ¶ 2).
Based on Mr. Ramos’ identification, Detective Thompson ordered
a more recent photograph of Mr. Jimenez from the Police Department
Photo Unit and assembled a photo array, which was shown to Ms.
Velazquez later that day.

(Tr. at 43-44, 46, 63-65).

immediately identified Mr. Jimenez.

She

(Tr. at 44-45; DD5 dated June

26, 1992, attached as Exh. 3 to Garber Decl.).
Based on these identifications, Detective Thompson attempted
to locate and apprehend Mr. Jimenez.

(Tr. at 291, 295).

When his

initial efforts did not succeed, Detective Thompson requested that
6

a wanted poster be prepared and circulated citywide.

(Tr. at 67,

294-95; Wanted Poster dated Sept. 2, 1992 (“Wanted Poster”),
attached as Exh. 4 to Garber Decl.).

On October 14, 1992, Mr.

Jimenez was arrested and brought to the 48th Precinct. (Tr. at 4849, 65, 291).
On October 15, 1992, he was placed in a lineup.
50, 68, 293-94).

(Tr. at 49-

Mr. Ramos viewed the lineup first.

(Tr. at 68).

Detective Thompson testified that Mr. Ramos’ father accompanied him
to the precinct and seemed to discourage Mr. Ramos from getting
involved in the case or making a positive identification.
75-76).

Detective Thompson also stated that Mr. Ramos seemed

apprehensive about viewing the lineup.
viewed

(Tr. at

the

lineup

identification.

for

a

few

(Tr. at 74).

minutes

but

did

Mr. Ramos

not

make

an

(Tr. at 68; Lineup DD5, attached as Exh. 6 to

Garber Decl., ¶ 1).

Though Detective Thompson’s police report

stated only that Mr. Ramos was unable to identify the suspect,
Detective

Thompson

identification.

believed

Mr.

Ramos

refused

make

an

(Tr. at 68, 70, 72-74, 294, 303-04).

Ms. Velazquez viewed the lineup after Mr. Ramos.
174).

to

(Tr. at 68,

She was driven to the precinct by Theresa Brana, the

victim’s sister.

(Tr. at 139-40, 219-20).

Several copies of the

wanted poster were in the car, which Ms. Velazquez looked at
briefly.

(Tr. at 18, 21, 219-20).
7

The posters displayed the same

photograph of the petitioner that Ms. Velazquez had picked out in
the photo array.

(Wanted Poster; Photographic Array, attached as

Exh. 2 to Declaration of Matthew B. White dated March 6, 2017
(“White Decl.”)).

Ms. Velazquez quickly identified Mr. Jimenez

when she arrived at the lineup.
DD5, ¶ 2).

(Tr. at 51, 174-75, 235; Lineup

She later testified at trial that she was able to

identify him based on her memory of the shooting rather than from
viewing the wanted posters.
C.

(Tr. at 235-36).

Pretrial Hearing

On September 12 and 19, 1994, prior to Mr. Jimenez’s trial,
the trial court held a hearing pursuant to United States v. Wade,
388

U.S.

218

identification.

(1967),

to

evaluate

(Tr. at 1-2, 33).

Ms.

Velazquez’s

lineup

After hearing testimony from

Ms. Brana and Detective Thompson, the court denied the petitioner’s
motion

to

suppress

Ms.

Velazquez’s

eyewitness

identification

testimony, finding that her identification at the lineup was not
tainted by her viewing of the wanted poster.

(Tr. at 78).

At the pretrial hearing, petitioner’s defense counsel noted
that he “had three alibi witnesses a long time ago” and was
“attempting to get a hold of them.”

(Tr. at 87).

Indeed, he had

filed a Notice of Alibi on January 26, 1993, announcing his intent
to call Raymond Rosario, one of Mr. Jimenez’s friends, as a witness
at trial.

(Notice of Alibi dated Jan. 26, 1993 (“Notice of
8

Alibi”), attached as Exh. 14a to Garber Decl.). His notes indicate
that he was also aware of other potential alibi witnesses and had
considered calling several of Mr. Jimenez’s friends as witnesses at
trial, including Danny Hernandez.

(Alibi Notes of Rudy Velez

(“Alibi Notes”), attached as Exh. 14 to Garber Decl.).
D.

The Trial

The trial began on September 22, 1994, before Justice Joseph
Fisch.

(Tr. at 95).

The prosecution called six witnesses: Ms.

Brana; Officer John McAndrews, the first officer to arrive at the
scene of the crime; Dr. Charles; Detective Thompson; Ms. Velazquez;
and Mr. Ramos.
Ms. Velazquez testified that she had an unobstructed, close
view of the perpetrator’s face and unequivocally identified Mr.
Jimenez as Mr. Brana’s shooter.

(Tr. at 169-71, 173-75, 178-79,

227-28). Mr. Ramos did not immediately identify Mr. Jimenez as the
shooter.

(Tr. at 254).

He also testified that he did not

recognize anyone at the October 15, 1992 lineup because he “did not
remember too well.”

(Tr. at 255-57).

Despite his initial failure

to identify the petitioner in court, Mr. Ramos eventually admitted
that Mr. Jimenez “look[ed] like” the shooter.

(Tr. at 259).

Finally, on re-direct, Mr. Ramos testified that he believed the
shooter was Dominican because he knew him “for about a year or
two,” and he identified the petitioner as the shooter.
9

(Tr. at

265).

On re-cross, Mr. Ramos affirmed that he “now [] s[aw]

Monaguillo in the courtroom.”

(Tr. at 265).

The defense called Detective Coor, who had interviewed Ms.
Velazquez with Detective Thompson.

Detective Coor admitted that

Ms. Velazquez’s statement to the police had been taken by two
detectives and that the reports may have contained errors. (Tr. at
336-37, 341-42).

The defense also called Andrzej Jachimczyk, who

had been Mr. Jimenez’s probation officer in 1992, and who testified
that he had never seen Mr. Jimenez with Jheri curls.

(Tr. at 363-

64).
During deliberations, the jury requested a read-back of nearly
all of the trial testimony and asked for a read-back of Mr. Ramos’
testimony twice.

(Tr. at 468, 482).

After “a few hours” of

deliberations, they informed the court that they were unable to
reach a verdict, but the trial judge instructed them to continue
deliberating. (Tr. at 473-74). On October 4, 1994, after two days
of deliberations, the jury convicted Mr. Jimenez of murder in the
second degree.

(Tr. at 485).

On October 24, 1994, he was

sentenced to an indeterminate term of twenty-five years to life
imprisonment.
E.

(White Decl., ¶ 31).

The Direct Appeal (1996) and Pro Se Motion (2001)

In June 1996, the petitioner appealed his conviction.

(Brief

for Defendant-Appellant, People v. Jimenez, 232 A.D.2d 210, 647
10

N.Y.S.2d 947 (1st Dep’t 1996) (“Appeal Brief”), attached as Exh. 6
to

White

Decl.).

He

asserted

that

(1)

Ms.

Velazquez’s

identification of him at the lineup was tainted by her viewing of
the wanted posters, (2) the court’s identification charge was
inadequate, and (3) the sentence was excessive.
14, 23, 28).

(Appeal Brief at

On October 8, 1996, the Appellate Division, First

Department, unanimously affirmed Mr. Jimenez’s conviction.

People

v. Jimenez, 232 A.D.2d 210, 210, 647 N.Y.S.2d 947, 947 (1st Dep’t
1996).

The New York Court of Appeals denied leave to appeal on

December 20, 1996.

People v. Jimenez, 89 N.Y.2d 924, 924, 654

N.Y.S.2d 726 (table) (1996).
On July 26, 2001, Mr. Jimenez filed a pro se motion to vacate
his conviction pursuant to New York Criminal Procedure Law (“CPL”)
§ 440.10.

(Affidavit of Raphael Jimenez, People v. Jimenez,

Indictment No. 7631/92 (N.Y. Sup. Ct. July 7, 2001) (“Pro Se § 440
Motion”), attached as Exh. 8 to White Decl.). He asserted that (1)
his

right

to

legal

counsel

was

violated

because

he

was

unrepresented at the October 15, 1992 lineup, (2) the jury verdict
was coerced by the trial judge, (3) Ms. Velazquez’s viewing of the
wanted poster was prejudicial, (4) the victim’s and arresting
officer’s testimony was “bolstering,” (5) an independent source
hearing on Ms. Velazquez’s identification should have been held,
and (6) his counsel was ineffective.
11

(Pro Se § 440 Motion at 1, 3,

5, 10, 13).

On November 14, 2001, the court denied Mr. Jimenez’s

motion as procedurally barred.

(People v. Jimenez, Indictment No.

7631/92 (N.Y. Sup. Ct. Nov. 13, 2001), attached as Exh. 10 to White
Decl.).
F.

He did not appeal.
The 2014 CPL § 440.10 Motion

On July 1, 2014, Mr. Jimenez filed another motion pursuant to
CPL § 440.10 to vacate his conviction based on actual innocence,
newly-discovered evidence, and violations of due process.
Decl., ¶ 28).

Mr. Ramos submitted an affidavit recanting his

identification of Mr. Jimenez.5
the

shooter

mamaguevo?”

(Garber

said,

in

He stated that during the murder,

Spanish,

“[W]hat

is

it

that

you

want,

(Translated Affidavit of Harry Ramos dated April 11,

2013 (“Ramos Aff.”), attached as part of Exh. 10 to Garber Decl.,
¶ 1).

Mr. Ramos stated that this slur, which means cocksucker, is

a Dominican profanity and that the shooter was Dominican.
Aff., ¶ 1).

(Ramos

Mr. Ramos asserted that in or about 2011, he learned

that Mr. Jimenez is of Puerto Rican heritage and therefore no
longer believes Mr. Jimenez is the shooter.

5

(Ramos Aff., ¶ 4).

The affidavit is in Spanish with an English translation
attached to it. While the translation is not certified and the
dates on the documents are inconsistent, I will accept the
translated version because the respondent has not challenged it.
Additionally, the State court accepted the translation when the
court’s interpreter found no substantial errors. See People v.
Jimenez, 46 Misc. 3d 1220(A) (table), 9 N.Y.S.3d 594 (table), 2015
WL 770457, at *5 n.3 (N.Y. Sup. Ct. Feb. 13, 2015).
12

Additionally, Mr. Ramos claimed that the detectives misled him into
believing both that Mr. Jimenez was Dominican and that he was the
shooter.

(Ramos Aff., ¶ 1).

The petitioner also filed an affidavit from Dr. Cecelia
Cutler, Ph.D., a professor of Sociolinguistics, identifying studies
that support Mr. Ramos’ ability to distinguish between ethnicities
based on dialect.

(Affidavit of Dr. Cecelia Cutler dated June 25,

2014 (“Cutler Aff.”), attached as Exh. 8 to Garber Decl., at 2).
In addition, the petitioner submitted affidavits from two alibi
witnesses, Amancio Delgado and Danny Hernandez, who claim that on
the day of the murder, Mr. Jimenez was with them a mile from the
murder until well into the evening.

(Affidavit of Amancio Delgado

dated Jan. 21, 2014, attached as Exh. 9 to Garber Decl. (“Delgado
Aff.”), ¶¶ 5-6; Affidavit of Danny Hernandez dated Dec. 10, 2013,
attached as Exh. 13 to Garber Decl. (“Hernandez Aff.”), ¶¶ 3-4).
On February 13, 2015, Justice Barbara Newman denied the
motion.

See Jimenez, 46 Misc. 3d 1220(A) (table), 9 N.Y.S.3d 594

(table), 2015 WL 770457, at *13.

Justice Newman found that Mr.

Ramos’ affidavit was unreliable and contradicted by the trial
record.

Id., 9 N.Y.S.3d 594 (table), 2015 WL 770457, at *4-8.

The

court also found that the alibi affidavits of Mr. Delgado and Mr.
Hernandez lacked credibility because they were vague and supplied
by persons who had an interest in the case.
13

Id., 9 N.Y.S.3d 594

(table), 2015 WL 770457, at *8-10.

The First Department denied

leave to appeal on November 5, 2015.

(Certificate Denying Leave,

People v. Jiminez, Index No. 7631/92 (1st Dep’t filed Nov. 5,
2015), attached as Exh. 22 to Garber Decl.).
G.

Habeas Corpus Petition

On November 4, 2016, Mr. Jimenez filed the instant petition
for a writ of habeas corpus, raising substantially the same issues
he asserted in the State collateral proceedings.

The respondent

argues, among other things, that the petition is time-barred.

In

response, Mr. Jimenez argues that the petition is timely, and that
he

is

otherwise

entitled

to

an

exception

from

the

one-year

limitations period because he is actually innocent.
Discussion
The AEDPA provides a remedy for a state prisoner when his
continued custody is in violation of federal law. 28 U.S.C §
2254(a).

The AEDPA imposes a one-year period of limitations for

its remedy, running from the latest of:
(A)

the date on which the judgment became final by the
conclusion of direct review or the expiration of
the time for seeking such review;

(B)

the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;

(C)

the date on which the constitutional right asserted
14

was initially recognized by the Supreme Court, if
the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review; or
(D)

the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

However, the AEDPA limitations period can

be equitably tolled in appropriate cases.

See Holland v. Florida,

560 U.S. 631, 645 (2010). Similarly, a prisoner can circumvent the
AEDPA limitations period if he makes “a credible showing of actual
innocence.” McQuiggin v. Perkins, __ U.S. __, __, 133 S. Ct. 1924,
1931 (2013).
Mr. Jimenez’s direct appeal was denied on December 20, 1996.
Jimenez, 89 N.Y.2d at 924, 654 N.Y.S.2d 726 (table).
is therefore untimely under § 2244(d)(1)(A).

The petition

See Williams v.

Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (limitations period for
state prisoner’s habeas petition “begins to run only after . . .
the expiration of time for seeking certiorari” from Supreme Court);
Chrysler v. Guiney, 14 F. Supp. 3d 418, 433 (S.D.N.Y. 2014) (New
York State court judgment becomes final ninety days after decision
by New York Court of Appeals).
petition

is

instead

The petitioner argues that the

timely

pursuant

to

§

2244(d)(1)(D).

Alternatively, he argues that any procedural default is excused
because he is actually innocent.

15

A.

28 U.S.C. § 2244(d)(1)(D)

Section

2244(d)(1)(D)

“resets

the

limitations

period’s

beginning date, moving it from the time when the conviction became
final . . . to the later date on which the particular claim
accrued.”

Ocasio v. Lee, No. 14 Civ. 6097, 2017 WL 456468, at *3

(S.D.N.Y. Feb. 2, 2017) (alteration in original) (quoting Chettana
v. Racette, No. 15 CV 28, 2016 WL 447716, at *5 (N.D.N.Y. Feb. 4,
2016)).

“The determination of the date on which the factual

predicate

for

a

habeas

claim

is

first

discoverable

is

a

‘fact-specific’ inquiry which requires a district court to analyze
the factual bases of each claim and to determine when the facts
underlying the claim were known, or could with due diligence have
been discovered.”
2012).

Rivas v. Fischer, 687 F.3d 514, 534 (2d Cir.

To determine if facts could have been discovered through

the exercise of due diligence, a court needs to evaluate “when a
duly diligent person in [the] petitioner’s circumstances would have
discovered” those facts.
(2d Cir. 2000).

Wims v. United States, 225 F.3d 186, 190

“Evidence is not newly discovered simply because

a petitioner did not possess it until recently; if evidence could
have been obtained earlier, ‘the date when the evidence was
actually obtained has no effect on the AEDPA limitations period.’”
Bryant v. Thomas, __ F. Supp. 3d __, __, 2017 WL 3328241, at *9
(S.D.N.Y. 2017) (quoting Duamutef v. Mazzuca, No. 01 Civ. 2553,
16

2002 WL 413812, at *9 (S.D.N.Y. March 15, 2002)).
In his petition, Mr. Jimenez claims that newly discovered
evidence warrants the grant of habeas relief.

The alleged new

evidence supporting this claim includes four affidavits, the latest
of which was signed on June 25, 2014.

Even assuming that the date

of this affidavit represents the date on which the evidence was
discovered, the plaintiff’s application is still untimely.

Six

days after that affidavit was signed, the petitioner filed the CPL
§ 440.10 motion in State court, which tolled the limitations
period.

See 28 U.S.C. § 2244(d)(2); Hizbullahankhamon v. Walker,

255 F.3d 65, 70 (2d Cir. 2001).

The statute remained tolled for

499 days until November 5, 2015, when the Appellate Division denied
leave to appeal.

See Barrientos v. Lee, No. 14 Civ. 3207, 2015 WL

3767238, at *8 (S.D.N.Y. June 17, 2015).

From that date, another

365 days passed6 before the petitioner filed the instant petition
on November 4, 2016.

Thus, the petitioner waited a total of 371

days to file his habeas petition.

Accordingly, the petition is

untimely.7
6

2016 was a leap year; thus, Mr. Jimenez had one additional
day -- a total of 366 days -- to file his petition. See, e.g.,
Harper v. Ercole, 648 F.3d 132, 134 n.1 (2d Cir. 2011); United
States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000); Lopez v.
Superintendent of New York State -- NYS Oneida County, No. 12 CV
3789, 2013 WL 5445986, at *4 n.2 (E.D.N.Y. Sept. 27, 2013).
7

The petitioner’s argument that “the calculation should
commence [on] the date the denial of a state motion becomes final”
17

B.

Gateway Actual Innocence

The petitioner argues that any procedural default should be
excused because he is actually innocent.
its core, an equitable remedy.”
(1995).

“[H]abeas corpus is, at

Schlup v. Delo, 513 U.S. 298, 319

Accordingly, “in appropriate cases,” the principles of

comity and finality underlying procedural bars on habeas review
“must yield to the imperative of correcting a fundamentally unjust
incarceration.”

Engle v. Isaac, 456 U.S. 107, 135 (1982).

The Supreme Court has applied the “gateway” actual innocence
exception to a number of procedural bars, including the bar imposed
by the AEDPA’s one-year statute of limitations. McQuiggin, __ U.S.
at __, 133 S. Ct. at 1928; Rivas, 687 F.3d at 517.

Such exceptions

are, however, “rare” and will apply only “in the extraordinary
case.”

Schlup, 513 U.S. at 321.

To excuse a petitioner from a

procedural default, “a claim of actual innocence must be both
‘credible’ and ‘compelling.’”

Rivas, 687 F.3d at 541.

This

establishes a two-pronged test.
First,

the

petitioner

must

establish

that

the

claim

is

(Petitioner’s Reply Memorandum of Law at 3) is unconvincing, see,
e.g., Bethea v. Girdich, 293 F.3d 577, 578 (2d Cir. 2002)
(“[S]tate-court applications for collateral relief do not ‘restart’
the AEDPA limitations period . . . .”); Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000) (“If the one-year period began anew when the
state court denied collateral relief, then state prisoners could
extend or manipulate the deadline for federal habeas review by
filing additional petitions in state court.”).
18

credible.

For the claim to be credible, it must be supported with

“new reliable evidence -- whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts or critical physical
evidence -- that was not presented at trial.”

House v. Bell, 547

U.S. 518, 537 (2006) (quoting Schlup, 513 U.S. at 324).

New

evidence is “all evidence that was not presented to the jury during
trial.”8

Lopez, 915 F. Supp. 2d at 400 n.16; see Schlup, 513 U.S.

at 324; Rivas, 687 F.3d at 543.
innocence

claim

need

not

fit

“Evidence supporting an actual
within

one

of

the

categories

explicitly listed in Schlup so long as the court determines it to
be ‘new reliable evidence.’”
(emphasis omitted).

Lopez, 915 F. Supp. 2d at 399 n.14

The court must determine “whether the new

evidence is trustworthy by considering it on its own merits and,
where appropriate, in light of the pre-existing evidence in the
record.”

Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004).

considering

the

reliability

of

evidence

for

actual

In

innocence

purposes, the court “is not bound by the rules of admissibility
that would govern at trial.”

Schlup, 513 U.S. at 327.

8

That is, it

Some circuit courts have held that for evidence to be new,
it must also not have been available at trial.
See Lopez v.
Miller, 915 F. Supp. 2d 373, 400 n.16 (E.D.N.Y. 2013) (collecting
cases). However, Rivas defined new evidence only as “evidence not
heard by the jury.”
687 F.3d at 543 (“What makes the claim
‘credible,’ as Schlup defines that term, is that it is based on new
evidence -- that is, evidence not heard by the jury . . . .”). I
will therefore apply that definition.
19

may “consider the probative force of relevant evidence that was
either excluded or unavailable at trial.”

Id. at 327-28.

The

court may assess the credibility of a new witness by considering
“the potential motives to be untruthful that the witness may
possess, corroboration or lack thereof, internal consistency, and
the inferences or presumptions that crediting particular testimony
would

require.”

Doe,

391

F.3d

at

164-65.

Additionally,

“[u]nexplained delay in presenting new evidence bears on the
determination
showing.”

whether

the

petitioner

has

made

the

requisite

McQuiggin, __ U.S. at __, 133 S. Ct. at 1935.

Second, the petitioner must establish that the claim is
compelling.

“As long as the petitioner has presented ‘some new

reliable evidence,’ the court may proceed to the ‘compelling’ prong
of the claim, at which point the court’s analysis ‘is not limited
to [new reliable] evidence’ but must be based on ‘all the evidence,
old and new.’”

Lopez, 915 F. Supp. 2d at 399 (alteration in

original) (quoting House, 547 U.S. at 537) (emphases added); see
also Rivas, 687 F.3d at 542.

For a claim to be compelling, the

petitioner must demonstrate that “more likely than not, in light of
the new evidence, no reasonable juror would find him guilty beyond
a reasonable doubt -- or to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt.”
Rivas, 687 F.3d at 541 (quoting House, 547 U.S. at 538).
20

“[T]he

inquiry requires a federal court to assess how reasonable jurors
would react to the overall, newly supplemented record,” which may
“include consideration of the credibility of the witnesses to be
presented at trial.” Id. (quoting House, 547 U.S. at 538–39). “It
is not the district court’s independent judgment as to whether
reasonable doubt exists that the standard addresses; rather the
standard requires the district court to make a probabilistic
determination about what reasonable, properly instructed jurors
would do.”

Schlup, 513 U.S. at 329.

This standard “focuses the

inquiry on the likely behavior of the trier of fact.”

Id. at 330.

“[I]t may be enough for the petitioner to introduce credible new
evidence that thoroughly undermines the evidence supporting the
jury’s verdict.”
1.

Rivas, 687 F.3d at 543.

Effect of the 2014 CPL § 440.10 Proceeding

The respondent argues that 28 U.S.C. § 2254(e)(1) applies to
the

petitioner’s

gateway

actual

innocence

claim.

Section

2254(e)(1) provides:
In a proceeding instituted by an application for a writ
of habeas corpus by a person in custody pursuant to the
judgment of a State court, a determination of a factual
issue made by a State court shall be presumed to be
correct.
The applicant shall have the burden of
rebutting the presumption of correctness by clear and
convincing evidence.
While neither the Supreme Court nor the Second Circuit have held
that this presumption applies to gateway actual innocence claims,
21

several other circuits have concluded that it does.

See Reed v.

Stephens, 739 F.3d 753, 772 n.8 (5th Cir. 2014); Carr v. Warden,
Lebanon Correctional Institution, 401 F. App’x 34, 38–39 (6th Cir.
2010); Sharpe v. Bell, 593 F.3d 372, 379 (4th Cir. 2010); Storey v.
Roper, 603 F.3d 507, 524 (8th Cir. 2010); Love v. Roberts, 259 F.
App’x 58, 63 (10th Cir. 2007); Goldblum v. Klem, 510 F.3d 204, 221
n.13 (3d Cir. 2007).

Other courts in this district have also

applied the rule to gateway actual innocence claims.

See Bryant,

__ F. Supp. 3d at __, 2017 WL 3328241, at *12 (“[T]he state court
observed that the New York Court of Appeals had already sustained
an earlier finding that Petitioner voluntarily agreed to accompany
the police to the police station and that Petitioner’s confession
was not the product of coercion; these are findings of fact
entitled to deference under Section 2254(e)(1).”).
While

I

am

not

bound

by

these

decisions,

I

find

them

persuasive, and it is clear from the plain text of the rule that a
state court’s factual determinations are presumed correct in all
federal habeas corpus proceedings.

See 28 U.S.C. § 2254(e)(1).

Therefore, I will presume those determinations are correct absent
a contrary showing by clear and convincing evidence.
v.

Quarterman,

566

F.3d

553,

563

(5th

Cir.

See Richards

2009);

see

also

Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court
can disagree with a state court’s credibility determination and,
22

when guided by AEDPA, conclude the decision was unreasonable or
that the factual premise was incorrect by clear and convincing
evidence.”).
2.
Mr.

Federal Habeas Evidence

Jimenez

has

resubmitted

the

affidavits

he

filed

in

connection with his 2014 CPL § 440.10 motion in this proceeding.
Mr. Ramos, who witnessed the shooting, recounts the murder and
clarifies a detail of his original testimony.

Mr. Ramos testified

at the trial that before shooting Mr. Brana, the shooter said, in
Spanish, “What is it that you want, cocksucker?”
264).

(Tr. at 258,

Mr. Ramos’ affidavit now states that the shooter used the

Dominican version of the profanity, “mamaguevo,” which is distinct
from the Puerto Rican version, “cabron.”

(Ramos Aff., ¶ 2).

According to Mr. Ramos, he formed his belief that the shooter was
Dominican based on his use of the word “mamaguevo.”9
¶¶ 1-2).

(Ramos Aff.,

However, in or around 2011, Mr. Ramos learned Mr.

Jimenez’s actual ethnicity.

Mr. Jimenez’s sister was a tenant in

the building in which Mr. Ramos worked as a superintendent.

One

day, by chance, Mr. Ramos’ wife and Mr. Jimenez’s sister were

9

Mr. Ramos testified in Spanish at trial; his testimony was
translated to English for the court and the jury. The transcript
reflects the English translation of Mr. Ramos’ testimony, such that
it is impossible to determine which version of the profanity Mr.
Ramos used during his testimony. (Tr. at 254, 258, 264).
23

discussing the murder and Mr. Jimenez’s sister revealed that it was
her brother who was convicted for the murder.

(Ramos Aff., ¶ 6).

Upon learning that Mr. Jimenez is of Puerto Rican heritage, Mr.
Ramos claims that he is “completely certain” that Mr. Jimenez is
innocent.

(Ramos Aff., ¶¶ 6-7).

Mr. Ramos further states that when he went to the police
precinct after the shooting to observe a lineup, the shooter
“wasn’t there.”

(Ramos Aff., ¶ 2).

Mr. Ramos asserts that the

detective told him “that [the shooter] was there” and said that Ms.
Velazquez had picked out the shooter, but Mr. Ramos ultimately did
not pick anyone from the lineup.

(Ramos Aff., ¶ 2).

He asserts that, before he was called to testify, he was
brought to a room and shown a picture of Mr. Jimenez.
¶ 4).

(Ramos Aff.,

He alleges that he was still uncertain about whether Mr.

Jimenez was Mr. Brana’s shooter at that time, so he asked the
detective whether Mr. Jimenez was Dominican or Puerto Rican.
(Ramos Aff., ¶ 4).
that

Mr.

Jimenez

Mr. Ramos alleges that the detective told him
was

Dominican

and

that,

based

on

this

representation, he identified Mr. Jimenez in court as the shooter.
(Ramos Aff., ¶¶ 4-5).
The petitioner also filed an affidavit signed by Dr. Cecelia
Cutler,

Ph.D.

in

Sociolinguistics,

to

highlight

the

dialect

differences between Dominican and Puerto Rican Spanish speakers and
24

identify studies that support Mr. Ramos’ ability to distinguish
between ethnicities based on dialect.

(Cutler Aff.).

Mr. Jimenez further relies on the affidavits of two alibi
witnesses, Amancio Delgado and Danny Hernandez, who were friends of
his in 1992.

These affidavits claim that on the day of the murder,

Mr. Jimenez was with them and several other friends celebrating Mr.
Hernandez’s eighteenth birthday at the corner of Mt. Eden Avenue
and Townsend Avenue, approximately one mile from the scene of the
crime.

(Delgado Aff., ¶¶ 5-6; Hernandez Aff., ¶¶ 3-4).

Both Mr.

Delgado and Mr. Hernandez assert that Mr. Jimenez was with them
from about 11:00 a.m. to 10:00 p.m.
Aff., ¶ 4).

(Delgado Aff., ¶ 5; Hernandez

Mr. Delgado’s affidavit also asserts that he himself

is of Dominican heritage, that he is familiar with the Dominican
word “mamaguevo,” and that it is a word “that only Dominicans would
say, and it’s not a word that [Mr. Jimenez] would be expected to
say, and I’ve never heard him say it.”

(Delgado Aff., ¶ 9).

On June 26 and 29, 2017, I held an evidentiary hearing limited
to the issue of Mr. Jimenez’s gateway actual innocence claim.
at 1, 261).10

Mr. Ramos, Dr. Cutler, Mr. Hernandez, Mr. Delgado,

Detective Thompson, and Mr. Jimenez testified at the hearing.
also

viewed

10

(H.

a

videotaped

version

of

Mr.

Ramos’

I

recantation

“H.” refers to the transcript of the evidentiary hearing.
25

statement and the video interview of Mr. Jimenez upon his arrest in
1992.

Shortly after the hearing, I received an Evidentiary

Stipulation from the parties, which disclosed that the Assistant
District Attorney at trial had a folder in his case file labeled
“Alibi,” containing information for Leo Gonzalez, another of Mr.
Jimenez’s friends. (Evidentiary Stipulation (“Stipulation”), ¶ 1).
All of this evidence, along with the affidavits described
above, is “new” for actual innocence purposes because it was not
presented at trial.

See Rivas, 687 F.3d at 543 (“new evidence” is

“evidence not heard by the jury”).

The question before me at this

stage is thus whether it is “reliable” under the credibility prong.
3.

Credibility Prong
a.

Mr.

Delgado

Amancio Delgado and Danny Hernandez
and

Mr.

Hernandez

submitted

affidavits

and

testified at the evidentiary hearing in support of Mr. Jimenez’s
alibi.

They also submitted their affidavits to the State court,

and that court found them unreliable because the affidavits: (1)
described no specific activities supporting their memory of that
day; (2) placed the petitioner within only one mile of the murder;
(3) failed to show the petitioner remained at Mt. Eden and Townsend
throughout the relevant period; (4) corroborated Ms. Velazquez’s
testimony because the petitioner was in a group of males, one of
whom was Dominican; (5) established that the petitioner had a
26

Dominican friend and must therefore know Dominican profanities; and
(6) were submitted by the petitioner’s friends.

Jimenez, 46 Misc.

3d 1220(A) (table), 9 N.Y.S.3d 594 (table), 2015 WL 770457, at *89.

The State court also found that the witnesses must not have

been credible because defense counsel did not call them at trial.
Id., 9 N.Y.S.3d 594 (table), 2015 WL 770457, at *9.
I find that there is clear and convincing rebutting the State
court’s credibility determination.

Although the shooting occurred

approximately twenty-two years before the signing of the affidavits
and twenty-five years before the testimony at the evidentiary
hearing, the statements are detailed and do not show that the
witnesses misremembered the events of the day of the shooting. Mr.
Delgado and Mr. Hernandez state that they had clear memories of
that day because it was Mr. Hernandez’s eighteenth birthday.
at 217; Delgado Aff., ¶ 6).

Both recollect who attended, though

their memories do not precisely align on that point.
62,

217,

246;

Delgado

(H.

Aff.,

¶

5;

Hernandez

(H. at 161-

Aff.,

¶

3).

Nevertheless, each witness remembers when he arrived, where the
party was, and what stores and buildings were near the street
corner.

(H. at 216-18, 239; Delgado Aff., ¶ 5).

They both

remember what they did, including drinking, smoking marijuana,
listening to music, eating, and playing dominoes until late in the
evening.

(H. at 166, 187-88, 191, 217-18, 241-43; Delgado Aff.,
27

¶ 5; Hernandez Aff., ¶ 4).

Mr. Hernandez admits that Mr. Jimenez

was not continuously in his line of sight (H. at 188-90, 206), but
that he was not gone long enough to go to the scene of the murder
and return.

(H. at 206).

He also stated that Mr. Jimenez never

looked agitated that day.

(H. at 206-207).

Mr. Delgado stated

that Mr. Jimenez never left his line of sight.

(H. at 246).

The testimony of each alibi witness is thus detailed and
largely consistent with that of the other.

Cf. United States v.

Leppert, 408 F.3d 1039, 1042 (8th Cir. 2005) (“cross-corroboration”
of statements supported their reliability); McGahee v. United
States,

570

F.

Supp.

2d

723,

736

(E.D.

Pa.

2008)

(minor

contradictions were immaterial given that the alibi statements were
“basically consistent”).

Moreover, once Mr. Jimenez was arrested

and the group of friends realized that the shooting occurred on
Danny Hernandez’s birthday, these witnesses expected that they
would need to remember their interactions with Mr. Jimenez from
that day.

(H. at 219, 252 (Mr. Delgado explains what he did when

he realized date of crime was Mr. Hernandez’s birthday); H. at 221
(Mr. Delgado explains why details have stayed with him); H. at 20002 (Mr. Hernandez states that they went to trial lawyer when they
realized murder occurred on his birthday); Delgado Aff., ¶ 8 (Mr.
Delgado states that he discussed being alibi witness with Mr.
Jimenez’s lawyer but was never called to testify); Hernandez Aff.,
28

¶ 5 (Mr. Hernandez states that he offered to testify on Mr.
Jimenez’s behalf)).

The notes of Mr. Jimenez’s trial counsel also

indicate that Mr. Hernandez was a potential alibi witness.
Notes).

(Alibi

The witnesses’ willingness to testify at the trial -- as

asserted by them and supported by documentation -- at the very
least suggests that they would have repeated the contents of their
affidavits at the trial had they been called by Mr. Jimenez’s
counsel.
The

(H. at 169, 251).
respondent

argues

that

because

Mr.

Delgado

and

Mr.

Hernandez were friends of Mr. Jimenez, they have a personal
interest in the outcome of the case and thus their alibi statements
are unreliable.

The respondent has presented no evidence that Mr.

Delgado and Mr. Hernandez are biased other than the fact that were
once friends with Mr. Jimenez, and that relationship alone does not
undermine their reliability.

See Poindexter v. Booker, 301 F.

App’x 522, 529 (6th Cir. 2008) (holding that district court erred
in

finding

alibi

witnesses

not

credible

based

on

close

relationships with defendant because “alibi witnesses often have
close relationships with the defendant”); Bell v. Howes, 757 F.
Supp. 2d 720, 737 (E.D. Mich. 2010) (“[I]t is the nature of alibi
witnesses that they typically have some sort of relationship with
the defendant.”), vacated and remanded on other grounds by 703 F.3d
848 (6th Cir. 2012); McGahee, 570 F. Supp. 2d at 736 (long-time
29

friends

of

witnesses,

petitioner
especially

consistent”);

Bohan

were
where
v.

not

inherently

their

Kuhlmann,

unreliable

testimony
234

F.

was

Supp.

alibi

“basically

2d

231,

281

(S.D.N.Y. 2002) (noting that friendship with petitioner does not
make

alibi

witness’

testimony

intrinsically

dishonest

or

untrustworthy; rather “the degree to which [the witness’] interest
affects his credibility” is a question of fact).
Moreover, at the time they began correspondence with the
petitioner’s current counsel and submitted their affidavits, Mr.
Delgado and Mr. Hernandez no longer had any relationship with Mr.
Jimenez. After his conviction, Mr. Jimenez’s relationship with his
friends ended.

Mr. Hernandez testified that he lost all contact

with Mr. Jimenez approximately a year after his arrest, and his
affidavit affirms that he never saw or spoke to Mr. Jimenez after
his conviction.

(H. at 169; Hernandez Aff., ¶ 7).

Mr. Delgado

likewise testified that he mostly lost contact with Mr. Jimenez
about a year after his conviction (H. at 220-21, 253-54), and his
affidavit explicitly states that he had not had “any contact with
[Mr. Jimenez] in over 5 years”11 (Delgado Aff., ¶ 11). However, Mr.
Jimenez sent him a few letters during that time, and Mr. Delgado

11

Mr. Delgado admits, however, that he has rekindled his
friendship with Mr. Jimenez since he signed his affidavit in
January 2014. (H. at 221, 254).
30

sent

him

about

$95

between

2003

and

2004.

(H.

at

254).

Additionally, after Mr. Delgado signed his affidavit, he sent Mr.
Jimenez $675 in February 2017 composed of contributions from a
group of friends.

(H. at 254-57).

However, these monetary gifts

were occasional, and the large sum came after Mr. Delgado signed
the affidavit.

Thus, I do not find that the alibi witnesses were

significantly affected by their relationship with the petitioner.
See Lopez, 915 F. Supp. 2d at 402 (finding that alibi witnesses who
had lost contact with petitioner were reliable and unlikely to
commit perjury); cf. Hope v. Cartledge, 857 F.3d 518, 525 n.4 (4th
Cir. 2017) (suggesting that alibi testimony from witness who has
severed his relationship with petitioner is more reliable than
testimony from witness who has continued relationship).
The respondent argues that the witnesses’ accounts of what
they did with Mr. Jimenez on June 25, 1992, are too vague and
implausible to warrant belief.

However, their statements about

what they did that day -- that in celebration of Mr. Hernandez’s
eighteenth birthday, beginning around 11:00 a.m. or noon until
around 10:00 p.m., they drank beer, smoked marijuana, and played
dominoes at their normal hangout spot at the corner of Mt. Eden and
Townsend Avenue with their normal group of friends -- are generally
internally consistent and consistent with each other’s statements.
Respondent has provided no reason why those activities would be
31

implausible.

Additionally, I find that the reason that the

witnesses remembered what happened that day is compelling.

As Mr.

Delgado testified, the alibi witnesses were made aware that Mr.
Jimenez was arrested for murder three or four months after Mr.
Hernandez’s birthday.

At that time, they had a fresher memory of

that day and would have reason to retain their memories of that day
going forward.

As Mr. Delgado testified, the memory of what

happened “never left [his] mind to this day.”

(H. at 221).

The respondent points out that neither Mr. Delgado nor Mr.
Hernandez explains why it took him nearly twenty-two years after
the crime to come forward with information supporting an alibi.
Relatedly,
authorities

the
to

respondent
the

argues

existence

of

reliability of their statements.

that
the

the

failure

alibi

to

undermines

alert
the

To the extent that this argument

attempts to imply that the alibi is a recent fabrication, this
contention is plainly contradicted by the record.

Mr. Delgado and

Mr. Hernandez tried to present the alibi by informing Mr. Jimenez’s
trial counsel -- an undeniably proper course of action -- and were
willing to testify on Mr. Jimenez’s behalf.

(H. at 169, 251;

Delgado Aff., ¶ 7; Hernandez Aff., ¶ 5; Alibi Notes).

Though it

was never presented to the court, it is uncontested that some alibi
evidence existed at the time of trial.
Alibi; Tr. at 87; Stipulation, ¶ 1).
32

(Alibi Notes; Notice of

Additionally, the prosecutor

was apparently aware of the alibi, since his trial folder contained
an “Alibi” file with the name Leo Gonzalez, one of Mr. Jimenez’s
friends.

(Stipulation, ¶ 1).

Mr. Delgado’s and Mr. Hernandez’s failure to go directly to
the authorities after Mr. Jimenez’s conviction does not undermine
the reliability of their statements.

Mr. Delgado testified that

Mr. Gonzalez was the person who was initially in contact with Mr.
Jimenez’s trial attorney about the alibi and that Mr. Delgado only
personally spoke to the trial attorney after the trial attorney
asked Mr. Gonzalez to “bring he and Mr. Hernandez in” to discuss
being alibi witnesses, which was about a year and a half after Mr.
Jimenez was arrested.

(H. at 251-52).

Since Mr. Gonzalez was the

initial liaison regarding the alibi, Mr. Delgado and Mr. Hernandez
could

have

reasonably

inferred

that

going

directly

to

the

authorities would have no additional impact on the case against Mr.
Jimenez.

I do not find the respondent’s argument here persuasive.

See Lopez, 915 F. Supp. 2d at 402 (“[T]he passage of time alone
does

not

convince

the

court

to

reject

the

alibi

witnesses’

testimony.”); Cleveland v. Bradshaw, 693 F.3d 626, 641 (6th Cir.
2012) (“[T]he passage of time is [not] sufficient in and of itself
to render [an alibi] affidavit unreliable.”); McGahee, 570 F. Supp.
2d at 736 (failure to provide “[an] explanation for why they
allowed their friend to sit in jail for years, without contacting
33

his lawyer or the Government to say that Petitioner could not have
committed

the

crime”

did

not

automatically

render

alibi

incredible).
Insofar as the respondent’s implication is that the witnesses
manufactured the alibi at the time of trial and that the witnesses
are still untruthful, the respondent has not presented any evidence
to support this allegation. Mr. Delgado and Mr. Hernandez are only
former friends. Indeed, both would have much to lose by committing
perjury. Both have children they support financially. (H. at 160,
209-10).

Both have steady jobs -- Mr. Hernandez worked in the

construction industry for over five years; Mr. Delgado has worked
for the Metropolitan Transportation Authority for over five years
and was recently promoted to a supervisor.

(H. at 159, 209).

Both

are pursuing college degrees: Mr. Hernandez at Newman College and
Mr. Delgado at Columbia University.

(H. at 159, 209); see, e.g.,

Bohan, 234 F. Supp. 2d at 281 (factors that lend credibility to
friend’s alibi testimony include college attendance and holding
steady job).

Based on all of these considerations, I do not find

that they would revive a false alibi in order to exonerate a former
friend, especially one whom they have hardly spoken to in over
twenty years.
Finally, I find that defense counsel’s failure to call the
alibi witnesses at trial shows little about their credibility. The
34

State court’s conclusion in this respect is speculative, as trial
counsel never testified or even submitted an affidavit in the State
proceeding.

There is nothing in the record suggesting that they

would have been unreliable witnesses at trial.

It is plausible

that they were not called because defense counsel was unable to
reach them, or that the lawyer was incompetent.
For these reasons, the sworn statements of Mr. Delgado and Mr.
Hernandez

constitute

“new

reliable

Jimenez’s actual innocence claim.

evidence”

supporting

Mr.

See Schlup, 513 U.S. at 331

(sworn statements of two people “that cast[ed] doubt on whether
[petitioner] could have participated in the murder” in light of his
whereabouts around time of crime would support petitioner’s actual
innocence claim if found to be reliable); see also Lopez, 915 F.
Supp. 2d at 403 (affidavits of two alibi witnesses “constitute ‘new
reliable evidence’” sufficient to satisfy credibility prong).
Although finding their statements credible is sufficient to proceed
to the “compelling” prong of the gateway actual innocence analysis,
see House, 547 U.S. at 537 (requiring only “some new reliable
evidence” (emphasis added)), I will consider Mr. Ramos’ testimony
as well.
b.

Harry Ramos

“It is axiomatic that witness recantations ‘must be looked
upon with the utmost suspicion.’”
35

Haouari v. Unites States, 510

F.3d 350, 353 (2d Cir. 2007) (quoting Ortega v. Duncan, 333 F.3d
102, 107 (2d Cir. 2003)).

Such evidence must not, however, simply

be dismissed out of hand.

See Schlup, 513 U.S. at 328 (court must

evaluate gateway actual innocence claim “in light of all the
evidence . . . (but with due regard to any unreliability of it)”
(quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral
Attacks

on

Criminal

Judgments,

38

U.

Chi.

L.

Rev.

142,

160

(1970))); Fairman v. Anderson, 188 F.3d 635, 646 (5th Cir. 1999)
(although person’s “status as a recanting witness detracts from the
credibility of [the witness’] new testimony, it is not a bar to the
acceptance

of

such

testimony”

(citation

omitted));

see

also

Cleveland, 693 F.3d at 638-40 (finding recantation reliable).

As

with any witness testimony, “the court evaluates recanted testimony
‘in light of the substance of other evidence, considering the
potential motives to be untruthful that the witness may possess,
corroboration or the lack thereof, internal consistency, and the
inferences or assumptions that crediting particular testimony would
require.’” Castillo v. Ercole, No. 07 Civ. 11256, 2009 WL 1492182,
at *6 (S.D.N.Y. May 27, 2009) (quoting Doe, 391 F.3d at 164-65).
The State court found that Mr. Ramos’ recantation not credible
because: (1) Mr. Ramos testified at trial that he knew the shooter
for a few years; (2) Detective Thompson, at trial, testified that
Mr. Ramos picked the petitioner’s photograph from hundreds of
36

pictures and provided the initial lead; (3) Mr. Ramos appeared to
be

fearful,

not

coerced;

(4)

Mr.

Ramos

made

an

unequivocal

identification in court; and (5) it was not implausible that Mr.
Ramos would mistake a person of Puerto Rican descent for a person
of Dominican descent.

Jimenez, 46 Misc. 3d 1220(A) (table), 9

N.Y.S.3d 594 (table), 2015 WL 770457, at *5-7.
I find that there is clear and convincing evidence to overcome
the State court’s findings.

Overall, the crux of Mr. Ramos’

recantation -- that Mr. Jimenez was not the shooter because Mr.
Jimenez is not Dominican -- is consistent among his affidavit,
deposition testimony, and testimony at the evidentiary hearing: Mr.
Ramos strongly believed the shooter was Dominican; he identified
Mr. Jimenez despite his uncertainty because he believed he was
Dominican; and he now knows Mr. Jimenez is innocent after learning
he is of Puerto Rican heritage.

Additionally, Mr. Ramos was more

insistent at the evidentiary hearing than he was at the trial: at
trial,

he

had

identification.

great

difficulty

with

making

a

courtroom

At the evidentiary hearing, he was certain that

Mr. Jimenez was not the shooter.

(H. at 24-26, 95).

I do not

doubt the sincerity of Mr. Ramos’ belief that he identified the
wrong man at trial.
I also find that Mr. Ramos had ample reason to believe that
the shooter was Dominican and was able to differentiate between
37

Dominicans and Puerto Ricans.

First, he heard the shooter use a

Dominican slur and speak with a Dominican accent.

Second, he

believed the shooter to be “Monaguillo,” a person he had known for
a year or two and knew to be Dominican.

Third, Mr. Ramos testified

credibly about his ability to differentiate between Dominican
Spanish speakers and Puerto Rican Spanish speakers.

(H. at 18-20,

26).
Dr. Cutler’s affidavit and testimony provide support, albeit
weak, for the misidentification theory. The studies that she cites
support Mr. Ramos’ ability to distinguish between Dominican Spanish
speakers and Puerto Rican Spanish speakers when hearing only eight
to forty-five seconds of speech, based on dialect alone.
Aff. at 2).

There are nevertheless reasons to question the force

of Dr. Cutler’s testimony.
basis

of

(Cutler

Mr.

Ramos’

First, she rendered her opinion on the

affidavit

alone,

specifically

on

his

recollection of what the shooter said.

(H. at 126).

It is unclear

whether

purports

be

Mr.

Ramos’

affidavit

even

to

an

exact

recitation. In addition, while Mr. Ramos is a Puerto Rican native,
Mr. Jimenez was born in New York, which Dr. Cutler admits could
affect how he speaks Spanish.

(H. at 109).

Finally, she relies on

studies that differentiate between Dominican and Puerto Rican
Spanish speakers based on dialect, which includes pronunciation,
intonation, the length of syllables, and other simple linguistic
38

cues.

(Cutler Aff. at 2-3; H. at 118).

implies
ethnicity

that

his

relies

identification
solely

on

of

the

Yet Mr. Ramos’ affidavit
the

shooter’s

shooter’s
use

of

Dominican
the

word

“mamaguevo.” (Ramos Aff., ¶ 2). His affidavit makes no mention of
accent,

dialect,

or

pronunciation.

It

was

not

until

the

evidentiary hearing that Mr. Ramos asserted that the shooter spoke
with a Dominican accent. (H. at 19). Nevertheless, when asked why
he was certain that the shooter was Dominican, Mr. Ramos responded,
“Because, mamaguevo[.]”

(H. at 95).

Indeed, Dr. Cutler does not

preclude the possibility that Mr. Ramos was mistaken in his
identification of the shooter as Dominican based on his speech.
(H. at 149-50).
The respondent argues that Mr. Ramos initially hesitated to
identify Mr. Jimenez not because he was uncertain, but because he
was afraid, which explains why he only identified Mr. Jimenez after
he was reassured that no one would hurt him.

At the evidentiary

hearing, however, Mr. Ramos clarified that he was afraid of certain
Dominicans, and “Monaguillo,” not Mr. Jimenez. (H. at 68, 75, 94).
Mr. Ramos also maintained that he eventually identified Mr. Jimenez
because of the pressure he felt and because the prosecutor promised
that Mr. Ramos would be relocated.

(H. at 23, 68, 71-73, 79).

It

is worth noting that there is evidence in the record corroborating
this allegation. The prosecutor stated on the record at trial that
39

he had agreed to help Mr. Ramos and his family move out of the
area.

(Tr. at 249).

Thus, his fear of the shooter in tandem with

the promise of the prosecutor could have resulted in Mr. Ramos
feeling pressure to make an identification, despite any uncertainty
he felt about whether Mr. Jimenez was actually the perpetrator.
Even if it is true that Mr. Ramos was afraid to identify Mr.
Jimenez because at the time he thought he was the shooter, that is
not a sufficient basis for discrediting his subsequent recantation
entirely, since the recantation is predicated on his more recent
discovery that Mr. Jimenez is of Puerto Rican heritage.
The respondent suggests that the recantation is unreliable
because the circumstances giving rise to Mr. Ramos’ newfound
knowledge

that

suspicious.

Mr.

Jimenez

is

of

Puerto

Rican

heritage

are

While it is certainly coincidental that Mr. Ramos

learned of Mr. Jimenez’s ethnicity from Mr. Jimenez’s sister, it is
not inconceivable that this occurred.

Indeed, Mr. Ramos has been

insistent that this interaction occurred (Ramos Aff., ¶ 6; H. at
23-25, 39, 82-84), and it provides a logical explanation for how he
came to believe that Mr. Jimenez is innocent.

The respondent also

suggests that, as a friend of Mr. Jimenez’s sister, Mr. Ramos is
biased and is recanting in order to help her. However, evidence of
Mr. Ramos’ friendship with Mr. Jimenez’s sister is insubstantial
and the respondent has not provided a reason why Mr. Ramos would
40

perjure himself on her behalf; their friendship therefore does not
convince me to reject his testimony.
Finally, the respondent argues that Mr. Ramos’ unreliability
is shown by his convictions for his use and sale of marijuana -both at the time of trial and when he signed his affidavit.
this

evidence

to

be

of

little,

if

any,

probative

I find

value

for

determining Mr. Ramos’ character for truthfulness, particularly
because the convictions do not demonstrate a propensity to lie.
(H. at 11); see Lopez, 915 F. Supp. 2d at 406 (finding convictions
for sale of crack and use of crack and heroin “to be of little if
any probative value for determining [the witness’] character for
truthfulness”); Eagan v. LaPlace Towing, Inc., No. 91-CV-4623, 1993
WL 121237, at *4 (E.D. La. April 14, 1993) (“[P]ossession of an
illegal

substance

is

hardly

probative

of

truthfulness

or

untruthfulness.” (internal quotation marks omitted)).
For these reasons, Mr. Ramos’ recantation statements are
reliable for establishing the limited propositions that he has
provided multiple inconsistent accounts of what precisely he saw on
the day of the shooting, that he has always believed the shooter
was Dominican, and that he is now convinced Mr. Jimenez is not the
shooter.
4.

Compelling Prong

I conclude that, based on the evidence presented to date, any
41

reasonable juror would have reasonable doubt as to Mr. Jimenez’s
guilt.

I draw this conclusion based on: (1) the weakness of the

prosecution’s case at trial; (2) the alibi witnesses’ testimony;
(3) the new evidence undermining Mr. Ramos’ testimony; and (4) Mr.
Jimenez’s testimony.
a.

Weakness of the Prosecution’s Evidence

The prosecution’s evidence at trial was particular weak.
There was no physical or forensic evidence linking Mr. Jimenez to
the crime; the case rested solely on eyewitness testimony.

Cf.

Batten v. Greiner, No. 97 CV 2378, 2003 WL 22284187, at *8
(E.D.N.Y. Aug. 26, 2003) (suggesting that case relying solely on
eyewitness testimony with no physical evidence linking defendant to
crime is weak case).

The first witness, Ms. Velazquez, testified

that she was there alongside her husband, Mr. Brana, when he was
shot.

(Tr. at 167-69).

She testified that she had a clear,

unobstructed view of the shooter from a distance of about eleven
feet for at least thirty seconds.

(Tr. at 169-71).

However, her

description of the shooter at trial is not wholly consistent with
the description she gave to the detectives who took her statement
following the shooting.

Ms. Velazquez insisted at trial that the

shooter was twenty-five to twenty-six years old, five fee six
inches tall, Dominican, with long black Jheri curls, olive-colored
skin, and khaki shorts. (Tr. at 172-73, 177, 212-13, 232-34). She
42

also testified that the shooter held the gun in his right hand.
(Tr. at 168).

The other description she provided was that of a

male Dominican, age twenty-three to twenty-four, with long black
Jheri curls, wearing a white tank top and denim shorts, and driving
a red sports car.

(Tr. at 190; Velazquez DD5).

Most importantly,

Mr. Jimenez matched neither description: he was seventeen years old
at the time of the shooting, had short, close-cropped hair, is
left-handed, of Puerto Rican heritage, and did not have a car or a
drivers’ license.

(Tr. at 296, 301, 362-66; H. at 167-68, 272,

286-87).
Despite these inconsistencies, Ms. Velazquez identified Mr.
Jimenez as the shooter several times without ever abandoning her
original descriptions.
DD5).

(Tr. at 170-73, 181-82, 191; Velazquez

In summation, Mr. Jimenez’s defense counsel noted that her

multiple descriptions and confusing testimony seemed to indicate
that she was “not positive about the identity of the shooter.”
(Tr. at 398).

Even the prosecutor in his closing statement twice

agreed that “[s]he is not the best witness in the world.”

(Tr. at

411).
The only other eyewitness, Harry Ramos, never provided a
description of the shooter at trial other than his neighborhood
nickname, “Monaguillo.”

(Tr. at 254, 263-65).

There was no

evidence presented at trial that Mr. Jimenez ever went by that
43

nickname. In addition, Mr. Ramos equivocated in his identification
of Mr. Jimenez several times both prior to and during the trial
even though he claimed that he “knew” the shooter.

(Tr. at 254-

57).
In short, the testimony of the two eyewitnesses presented by
the prosecution had serious defects.
clear

view

and

gave

a

detailed

Ms. Velazquez, who had a

description

of

the

shooter,

described a person very different from Mr. Jimenez.

Nevertheless,

she

the

unequivocally

identified

Mr.

Jimenez

as

shooter.

Meanwhile, Mr. Ramos, who claimed to “know” the shooter, vacillated
significantly on whether he recognized Mr. Jimenez as the shooter
throughout the entire investigation and trial.12
b.

Alibi Witnesses

Mr. Delgado and Mr. Hernandez have stated that Mr. Jimenez was
with them around the time of the crime.
around 5:00 p.m. on June 25, 1992.

12

The shooting occurred

(Tr. at 150; H. at 48).

It is also worth noting that the jury had difficulty in
reaching a verdict. When they informed the trial judge that they
were at an impasse, he instructed them to continue deliberating.
(Tr. at 473-74). During this time, the jury requested a read-back
of virtually all of the trial testimony.
(Tr. at 468).
Significantly, they requested a read-back of Mr. Ramos’ testimony
twice, signaling a reliance on his in-court identification of Mr.
Jimenez as the shooter. (Tr. at 468, 482). Moreover, it is worth
noting that the jury heard only three days of testimony, (excluding
the days for opening statements and summations), yet they
deliberated for two full days.
Given the short length of the
trial, that ratio is telling.
44

According to Mr. Delgado and Mr. Hernandez, Mr. Jimenez was with
them

and

their

group

of

friends

that

day

celebrating

Mr.

Hernandez’s eighteenth birthday at the intersection of Mt. Eden and
Townsend Avenue.

(H. at 161-62, 217, 231; Delgado Aff., ¶¶ 5-6;

Hernandez Aff., ¶¶ 3, 9).

According to Mr. Hernandez, Mr. Jimenez

arrived between 11:00 a.m. and noon. (H. at 165-66, 192; Hernandez
Aff., ¶ 4).

Similarly, Mr. Delgado asserted that when he arrived

around noon or 1:00 p.m., Mr. Jimenez, who lived nearby, was
already there.

(H. at 217-18, 239; Delgado Aff., ¶ 5).

They

explained, in detail, what they were doing and attested that they
never left the intersection of Mt. Eden and Townsend Avenues until
approximately 10:00 p.m. on the date of the murder.

(H. at 166,

187-89, 216-18, 241-44; Delgado Aff., ¶ 5; Hernandez Aff., ¶ 4).
Moreover, their statements are corroborated by the fact that
Mr. Jimenez’s trial lawyer had additional alibi witnesses at the
time of trial.

(Alibi Notes; Tr. at 87 (stating that he “had

three alibi witnesses”). Importantly, his notes suggest that those
witnesses would have attested to the same alibi provided by Mr.
Delgado and Mr. Hernandez.

(Alibi Notes).

Trial counsel’s notes

and the Notice of Alibi he submitted to the trial court also
identify Raymond Rosario as an alibi witness, and Mr. Delgado and
Mr.

Hernandez

confirmed

Hernandez’s birthday.

he

was

with

them

celebrating

Mr.

(Alibi Notes; H. at 162, 231; Delgado Aff.,
45

¶ 5).

Finally, the prosecutor had a manila folder in his case file

labeled “Alibi” with the name “Leo Gonzalez,” the friend whom Mr.
Delgado testified initially contacted the trial lawyer regarding
the alibi.

(Stipulation, ¶ 1; H. at 251-52).

Taken together,

these facts support the reliability of the asserted alibi.
To be sure, these alibi statements -- even if fully credited
-- do not eliminate the possibility that Mr. Jimenez committed the
crime.

Neither witness recalled the precise time that Mr. Jimenez

arrived or when everyone else arrived that day, although both state
they are certain that Mr. Jimenez arrived before noon. (H. at 16566, 192, 217, 239-41; Delgado Aff., ¶ 5; Hernandez Aff., ¶ 4).

Nor

can they say the exact time that Mr. Jimenez left the birthday
party, though both are certain he was there well into the evening,
until about 10:00 p.m. (H. at
Hernandez Aff., ¶ 4).

166, 217-18, 242; Delgado Aff., ¶ 5;

Mr. Hernandez admits that they occasionally

left the corner to eat, use the bathroom, purchase beer in the
grocery store, and purchase marijuana at the corner of Mt. Eden and
Jerome Avenue.

(H. at 188-90, 206).

Thus, he concedes that Mr.

Jimenez was not continuously in his line of sight.

In addition,

they were about a mile from the murder (approximately a twenty
minute walk each way), and Mr. Jimenez was familiar with the area
because he used to play baseball in the adjacent park and visited
his probation officer near that area.
46

(H. at 173, 329-32).

Thus,

the alibi witnesses’ statements do not preclude the possibility
that

Mr.

Jimenez

could

have

left

committed the crime, and returned.

the

birthday

celebration,

However, I find it unlikely

that Mr. Jimenez could have left the birthday party, walked a mile,
committed a murder, and then returned to the gathering without his
friends noticing a change in his demeanor or otherwise becoming
suspicious.

Indeed, the alibi witnesses stated that Mr. Jimenez

was never gone longer than a few minutes.
As a legal matter, the actual innocence test “does not require
absolute certainty about the petitioner’s guilt or innocence.”
House, 547 U.S. at 538.

The “appropriate question” is not whether

the testimony “conclusively and definitively establish[es] [Mr.
Jimenez’s]

innocence,

but

whether

.

.

.

a

reasonable

juror

considering the entire mix of evidence in the case would more
likely vote to acquit or to convict.”

Rivas, 687 F.3d at 545; see

also id. at 543 (noting that “it may be enough for the petitioner
to introduce credible new evidence that thoroughly undermines the
evidence supporting the jury’s verdict”).

In Schlup, for example,

the petitioner “presented statements from [two alibi witnesses]
that cast doubt on whether [the petitioner] could have participated
in the murder” in light of his location elsewhere around the same
time.

Schlup, 513 U.S. at 331.

The Court noted that if these

statements were “true . . . it surely [could not] be said that a
47

[reasonable] juror . . . would vote to convict.”

Id.

Here,

although the alibi witnesses do not establish with certainty that
Mr. Jimenez did not commit the crime, they certainly “cast doubt”
on the already thin evidence supporting the jury’s verdict, and the
statements would provide reason for reasonable jurors to not
convict.

Id.
c.

Mr. Ramos

Mr. Ramos’ already dubious identification of Mr. Jimenez is
undermined further by the statements he made in the years after the
trial.

Given

the

jury’s

reliance

on

Mr.

Ramos’

in-court

identification, the inability to ascertain how much of the shooting
Mr. Ramos actually witnessed, combined with his repeated waffling
on his identification, his statements severely “undermine[] the
evidence supporting the jury’s verdict.”

Rivas, 687 F.3d at 542-

43.
First, all of Mr. Ramos’ statements vary significantly in
terms of his position during the shooting and how much he actually
did or did not see.

In his statement to the police the day after

the murder, Mr. Ramos said that as the shooter approached and got
closer, he separated himself from Mr. Brana and Ms. Velazquez.
(Ramos DD5 at 1).

During the trial, Mr. Ramos testified that he

was “right there looking at [Mr. Brana] in front of me” during the
encounter and that he saw shooter fire a fourth shot into Mr.
48

Brana’s forehead.

(Tr. at 258).

In his affidavit, Mr. Ramos is

significantly less clear about his position; he stated that he
crossed the street and was looking at Mr. Brana.
1).

(Ramos Aff., ¶

He further stated that he “heard” three or four gunshots.

(Ramos Aff., ¶ 1).

At his deposition for this proceeding, he said

that he heard the shooter call Mr. Brana a “mamaguevo” and shoot
him, but “I don’t know anything from there on.

I just left.”

(Deposition of Harry Ramos dated May 25, 2012 (“Ramos Dep.”),
Respondent’s Evidentiary Hearing Exh. 2, at 12).

When asked if he

ever saw anybody get shot, Mr. Ramos simply responded that he
“heard

the

shots.”

(Ramos

Dep.

at

12).

Finally,

at

the

evidentiary hearing, Mr. Ramos first asserted that he stayed “there
like more or less like next to [Mr. Brana]” during the encounter.
(H. at 49).

However, when asked whether he remembered whether Mr.

Brana was shot in the forehead, Mr. Ramos responded that he was
“hidden right beneath the almond tree.”

(H. at 53).

He clarified

that he saw when Monaguillo “shot [Mr. Brana] the first time, and
then [he] hid.”

(H. at 53).

Mr. Ramos claimed that he “hid, and

then when [the shots] happened, everybody went running.”

(H. at

53).
Mr. Ramos’ position during the shooting is also called into
question by Ms. Velazquez’s trial testimony.

She stated that she

only remembered Mr. Ramos speaking to Mr. Brana “about going back
49

upstairs” before the shooting occurred. (Tr. at 166, 221-22). She
testified that “[Mr. Ramos] was around, but I don’t recall him
joining us.”

(Tr. at 166).

Moreover,

Mr.

Ramos

identification of Mr. Jimenez.

repeatedly

vacillated

in

his

First, he selected a photo of Mr.

Jimenez at the precinct the day after the shooting.

(Tr. at 39,

58;

to

Ramos

DD5

at

2).

However,

identification at the lineup.

he

then

failed

(Lineup Notes, ¶ 3).

make

an

At the trial,

Mr. Ramos first testified that he did not see the shooter in the
courtroom, then stated that Mr. Jimenez “looks like” the shooter,
and finally identified him as the shooter.

(Tr. at 254, 258-59,

265).
Since the trial, upon learning that Mr. Jimenez is of Puerto
Rican

heritage,

Mr.

Ramos

has

unequivocally

recanted

his

identification by his affidavit, at his deposition, and at the
evidentiary hearing, stating repeatedly that Mr. Jimenez was not
the shooter.

(H. at 22-23, 26, 56-57, 61-62, 64-66, 72, 89; Ramos

Aff., ¶ 4; Ramos Dep. at 19). Given that Mr. Ramos’ identification
of

Mr.

Jimenez

at

the

time

of

trial

was

so

equivocal,

his

insistence now that Mr. Jimenez was not the shooter would give
reasonable jurors an additional reason not to convict.
d.

Mr. Jimenez’s Testimony

Finally, Mr. Jimenez testified that on June 25, 1992, he
50

attended the birthday party at the corner of Mt. Eden and Townsend
Avenue.

He stated that although he does not remember their

activities hour-by-hour, he does remember generally what they did,
including “punch[ing]” Mr. Hernandez eighteen times to celebrate
his birthday.

(H. at 282, 295, 302, 314-15, 358).

He testified

that he arrived between 11:00 a.m. and noon and left the party
around 8:00 p.m. that evening.

(H. at 281).

Furthermore, Mr.

Jimenez has always insisted the eyewitnesses were mistaken and has
maintained his innocence since the date of his arrest.

(Interview

of Rafael Jimenez dated Oct. 15, 1992, at 4, 14-15; H. at 283, 345,
354, 356).
Needless to say, a habeas petitioner’s own testimony must be
treated with suspicion. But I have observed Mr. Jimenez’s demeanor
and found him to be a believable witness.
sufficiently

detailed,

and

His account was cogent,

substantially

consistent

with

the

testimony of the alibi witnesses, and it was not undermined in any
significant way on cross-examination.

His testimony thus lends

additional (albeit limited) support to his actual innocence claim.
Based on all of the evidence, both old and new, I conclude
that Mr. Jimenez has established a compelling claim of actual
innocence.

See House, 547 U.S. at 537.

That evidence -- Ms.

Velazquez’s description that does not match Mr. Jimenez, Mr. Ramos’
dubious identification and eventual recantation, Mr. Jimenez’s
51

plausible alibi supported by two reliable witnesses, and the
weakness of the prosecution’s case -- I find it “more likely than
not any reasonable juror would have reasonable doubt” as to Mr.
Jimenez’s guilt.

House, 547 U.S. at 538.

Because Mr. Jimenez has

presented a “credible” and “compelling” claim of actual innocence,
his is one of those “‘extraordinary cases’ warranting an equitable
exception to AEDPA’s limitation period.” Lopez, 915 F. Supp. 2d at
417 (quoting Rivas, 687 F.3d at 518).
Conclusion
For the reasons set forth above, I recommend that Mr. Jimenez
be allowed to pass through the actual innocence gateway to have the
merits of his claims heard despite his failure to timely file his
habeas

petition.

However,

due

to

the

limited

scope

of

the

evidentiary hearing, I decline to address the merits of such claims
in this Report and Recommendation.

Pursuant to 28 U.S.C. §

636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of
Civil Procedure, the parties shall have fourteen (14) days from
this

date

to

Recommendation.

file

written

objections

to

this

Report

and

Such objections shall be filed with the Clerk of

the Court, with extra copies delivered to the chambers of the
Honorable Alison J. Nathan, Room 2102, and to the chambers of the
undersigned, Room 1960, 500 Pearl Street, New York, New York 10007.
Failure to file timely objections will preclude appellate review.
52