22-2855 Marquez v. Barrone
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of June, two thousand twenty-four.
PRESENT:
DENNIS JACOBS, RICHARD J. SULLIVAN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
JULIAN MARQUEZ,
Petitioner-Appellant,
v. No. 22-2855
C BARRONE,
Respondent-Appellee. _____________________________________ For Petitioner-Appellant: RANDA D. MAHER, Maher & Pittell LLP, Great Neck, NY.
For Respondent-Appellee: JO ANNE SULIK, Senior Assistant State’s Attorney, Office of the Chief State’s Attorney, Rocky Hill, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Sarala V. Nagala, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s September 27, 2022
judgment is AFFIRMED.
Petitioner Julian Marquez appeals from a judgment of the district court
denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
following his conviction in Connecticut state court for felony murder, two counts
of first-degree robbery, and attempted robbery. On appeal, Marquez argues that
(1) his Fourteenth Amendment right to due process was violated when the state
trial court denied his motion to suppress and permitted the introduction of pretrial
and in-court identifications made by two eyewitnesses, and (2) his rights under
Brady v. Maryland, 373 U.S. 83 (1963), were violated when the prosecution failed to
disclose an alleged cooperation agreement between the prosecutors and a
cooperating witness and failed to correct the witness’s allegedly perjured
2 testimony on this point. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
A federal court may issue a writ of habeas corpus under section 2254 only if
the state court’s decision (1) “was contrary to, or involved an unreasonable
application of, clearly established [f]ederal law, as determined by the Supreme
Court of the United States,” or (2) “was based on an unreasonable determination
of the facts in light of the evidence presented in the [s]tate court proceeding.” 28
U.S.C. § 2254(d). We review the denial of a section 2254 petition de novo. Scrimo
v. Lee, 935 F.3d 103, 111 (2d Cir. 2019).
I. Identification Claim
The Connecticut Supreme Court affirmed Marquez’s conviction and
rejected his claim that the state trial court had erroneously denied his motion to
suppress the pretrial and in-court identifications made by two eyewitnesses.
Marquez argues that this ruling was contrary to, or involved an unreasonable
application of, clearly established federal law. In particular, Marquez contends
that the photographic identification procedures were unduly and unnecessarily
suggestive, and that section 2254 relief is accordingly warranted, because (1) the
photos were presented simultaneously instead of sequentially, (2) the officer
3 administering the array did not utilize a “double-blind” technique whereby
neither the witness nor the detective presenting the photographic array knew who
the suspect was, (3) Marquez’s photograph was the only one with a white ruler in
it and had a brighter background than the others in the array, and (4) the detective
showing the array made a confirmatory remark after one of the eyewitnesses
identified Marquez. We disagree.
In general terms, an out-of-court identification may not be admitted at trial
if the identification procedure used by law enforcement was (1) unduly and
unnecessarily suggestive, and (2) so unreliable that there is a very substantial
likelihood of misidentification. See Manson v. Brathwaite, 432 U.S. 98, 114–17
(1977); Simmons v. United States, 390 U.S. 377, 384–85 (1968). The Connecticut
Supreme Court expressly acknowledged both Manson and Simmons, see State v.
Marquez, 291 Conn. 122, 141–42 (2009), before concluding that the identification
procedures, while “not ideal, . . . satisfy the requirements of due process,” id. at
165.
Although Marquez disagrees with the Connecticut Supreme Court’s
conclusion, he identifies no authority from the United States Supreme Court
holding – or even suggesting – that an eyewitness identification procedure may
4 not include a simultaneous presentation of photographs in the form of an array,
as was done here. Nor does he cite any Supreme Court precedent that requires
law enforcement officers to employ a double-blind procedure. 1
With respect to the detective’s post-identification comments confirming the
accuracy of the witness’s identification, the Connecticut Supreme Court concluded
that the comment “may affect the weight or even the admissibility of a subsequent
in-court identification, [but] it is irrelevant to our analysis regarding the
suggestiveness of the [out-of-court] procedure itself.” Id. at 164. Marquez
insists that this statement is inconsistent with clearly established federal law and
that a post-identification confirmatory comment from a law enforcement officer to
an eyewitness is relevant to the admissibility of both the original pretrial
identification and the later in-court identification. But the only authorities
Marquez cites for this proposition are opinions by the Second Circuit – not the
United States Supreme Court – which by definition cannot constitute “clearly
established [f]ederal law” under section 2254. 28 U.S.C. § 2254 (defining “clearly
established [f]ederal law” as that “determined by the Supreme Court of the United
1 Marquez’s counsel essentially conceded at oral argument that no Supreme Court authority
prohibits the identification procedures employed here. Oral Argument Audio Recording at 06:40-06:45, Marquez v. Barrone, No. 22-2855 (2d Cir.) (“I would argue that there is not clearly established Supreme Court law that I can point to . . . .”).
5 States”); see also Williams v. Taylor, 529 U.S. 362, 381 (2000) (“If [the Supreme] Court
has not broken sufficient legal ground to establish an asked-for constitutional
principle, the lower federal courts cannot themselves establish such a principle
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22-2855 Marquez v. Barrone
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 4th day of June, two thousand twenty-four.
PRESENT:
DENNIS JACOBS, RICHARD J. SULLIVAN, WILLIAM J. NARDINI, Circuit Judges. _____________________________________
JULIAN MARQUEZ,
Petitioner-Appellant,
v. No. 22-2855
C BARRONE,
Respondent-Appellee. _____________________________________ For Petitioner-Appellant: RANDA D. MAHER, Maher & Pittell LLP, Great Neck, NY.
For Respondent-Appellee: JO ANNE SULIK, Senior Assistant State’s Attorney, Office of the Chief State’s Attorney, Rocky Hill, CT.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Sarala V. Nagala, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s September 27, 2022
judgment is AFFIRMED.
Petitioner Julian Marquez appeals from a judgment of the district court
denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
following his conviction in Connecticut state court for felony murder, two counts
of first-degree robbery, and attempted robbery. On appeal, Marquez argues that
(1) his Fourteenth Amendment right to due process was violated when the state
trial court denied his motion to suppress and permitted the introduction of pretrial
and in-court identifications made by two eyewitnesses, and (2) his rights under
Brady v. Maryland, 373 U.S. 83 (1963), were violated when the prosecution failed to
disclose an alleged cooperation agreement between the prosecutors and a
cooperating witness and failed to correct the witness’s allegedly perjured
2 testimony on this point. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
A federal court may issue a writ of habeas corpus under section 2254 only if
the state court’s decision (1) “was contrary to, or involved an unreasonable
application of, clearly established [f]ederal law, as determined by the Supreme
Court of the United States,” or (2) “was based on an unreasonable determination
of the facts in light of the evidence presented in the [s]tate court proceeding.” 28
U.S.C. § 2254(d). We review the denial of a section 2254 petition de novo. Scrimo
v. Lee, 935 F.3d 103, 111 (2d Cir. 2019).
I. Identification Claim
The Connecticut Supreme Court affirmed Marquez’s conviction and
rejected his claim that the state trial court had erroneously denied his motion to
suppress the pretrial and in-court identifications made by two eyewitnesses.
Marquez argues that this ruling was contrary to, or involved an unreasonable
application of, clearly established federal law. In particular, Marquez contends
that the photographic identification procedures were unduly and unnecessarily
suggestive, and that section 2254 relief is accordingly warranted, because (1) the
photos were presented simultaneously instead of sequentially, (2) the officer
3 administering the array did not utilize a “double-blind” technique whereby
neither the witness nor the detective presenting the photographic array knew who
the suspect was, (3) Marquez’s photograph was the only one with a white ruler in
it and had a brighter background than the others in the array, and (4) the detective
showing the array made a confirmatory remark after one of the eyewitnesses
identified Marquez. We disagree.
In general terms, an out-of-court identification may not be admitted at trial
if the identification procedure used by law enforcement was (1) unduly and
unnecessarily suggestive, and (2) so unreliable that there is a very substantial
likelihood of misidentification. See Manson v. Brathwaite, 432 U.S. 98, 114–17
(1977); Simmons v. United States, 390 U.S. 377, 384–85 (1968). The Connecticut
Supreme Court expressly acknowledged both Manson and Simmons, see State v.
Marquez, 291 Conn. 122, 141–42 (2009), before concluding that the identification
procedures, while “not ideal, . . . satisfy the requirements of due process,” id. at
165.
Although Marquez disagrees with the Connecticut Supreme Court’s
conclusion, he identifies no authority from the United States Supreme Court
holding – or even suggesting – that an eyewitness identification procedure may
4 not include a simultaneous presentation of photographs in the form of an array,
as was done here. Nor does he cite any Supreme Court precedent that requires
law enforcement officers to employ a double-blind procedure. 1
With respect to the detective’s post-identification comments confirming the
accuracy of the witness’s identification, the Connecticut Supreme Court concluded
that the comment “may affect the weight or even the admissibility of a subsequent
in-court identification, [but] it is irrelevant to our analysis regarding the
suggestiveness of the [out-of-court] procedure itself.” Id. at 164. Marquez
insists that this statement is inconsistent with clearly established federal law and
that a post-identification confirmatory comment from a law enforcement officer to
an eyewitness is relevant to the admissibility of both the original pretrial
identification and the later in-court identification. But the only authorities
Marquez cites for this proposition are opinions by the Second Circuit – not the
United States Supreme Court – which by definition cannot constitute “clearly
established [f]ederal law” under section 2254. 28 U.S.C. § 2254 (defining “clearly
established [f]ederal law” as that “determined by the Supreme Court of the United
1 Marquez’s counsel essentially conceded at oral argument that no Supreme Court authority
prohibits the identification procedures employed here. Oral Argument Audio Recording at 06:40-06:45, Marquez v. Barrone, No. 22-2855 (2d Cir.) (“I would argue that there is not clearly established Supreme Court law that I can point to . . . .”).
5 States”); see also Williams v. Taylor, 529 U.S. 362, 381 (2000) (“If [the Supreme] Court
has not broken sufficient legal ground to establish an asked-for constitutional
principle, the lower federal courts cannot themselves establish such a principle
with clarity sufficient to satisfy the [section 2254] bar.”). Absent contrary United
States Supreme Court authority, we cannot conclude that the Connecticut
Supreme Court’s decision is contrary to federal law.
II. Brady Claim
Marquez next argues that the Connecticut Supreme Court unreasonably
applied clearly established federal law when it determined that the prosecution’s
failure to disclose an alleged cooperation agreement between the prosecution and
a witness, Edwin Soler – and the prosecution’s subsequent failure to correct Soler’s
purportedly perjured testimony on this point – did not constitute a Brady violation.
Again, we disagree.
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
to punishment.” Brady, 373 U.S. at 87. “[E]vidence is material only if there is a
reasonable probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.” United States v. Bagley, 473
6 U.S. 667, 682 (1985). Undisclosed impeachment evidence concerning a
government witness may be material if the witness in question supplied the only
evidence linking the defendant to the crime. See Giglio v. United States, 405 U.S.
150, 154–55 (1972).
Marquez argues that Soler’s testimony was material because it “fleshed out
the State’s case and provided jurors with a full story,” as “only Soler was uniquely
situated to” testify about the planning and lead-up to the crime, as well as what
happened after. Marquez Br. at 59. But given the weight of the other evidence
against Marquez, the Connecticut Supreme Court’s conclusion that Soler’s
testimony was not a but-for cause of Marquez’s conviction was a reasonable
application of federal law. As noted by the Connecticut Supreme Court, the proof
of Marquez’s guilt was overwhelming and included: (1) Marquez’s own
statement to the police that he was present during the incident that caused the
victim’s death, and that he had, at some point, held the gun used in the murder;
(2) Valle’s and Clement’s identifications of Marquez – not Soler – as the gunman;
and (3) testimony from Marquez’s fellow inmate, David Williams, who stated that
Marquez confessed to shooting the victim and asked Williams to help him frame
Soler by drafting a letter that repeated the events of the murder but reversed the
7 roles of Marquez and Soler. See Marquez v. Comm’r of Corr., 330 Conn. 575, 595–
99 (2019). Notably, whether Marquez was the person who shot the victim was
not dispositive of his felony murder conviction – the trial court instructed the jury
that “[a] person is guilty of [felony] murder when, acting either alone or with one
or more persons, he commits or attempts to commit robbery and in the course of
and in furtherance of such crime or of flight therefrom, he, or another participant,
if any, causes the death of a person other th[a]n one of the participants,” App’x
1877–78. Weighing the evidence against Marquez in isolation from Soler’s
testimony, we cannot conclude that the Connecticut Supreme Court unreasonably
applied clearly established federal law when it concluded that “Soler’s testimony
served only to corroborate [the] independent testimony” already in the record.
Marquez, 330 Conn. at 599.
The record also supports the Connecticut Supreme Court’s conclusion that
the additional impeachment material would have been largely cumulative. As
the court noted, Soler admitted to hoping that his attorney could do “whatever she
c[ould] do” to get him a deal with the prosecution, id. (alterations and internal
quotation marks omitted), which prompted Marquez’s lawyer to argue in
summation that Soler “likely testified as a means to have the felony murder
8 charge, and its mandatory minimum sentence, dropped in exchange for testimony
favorable to the state,” id. at 600. Defense counsel also vigorously cross-examined
Soler on his belated efforts to speak with police, his prior drug use, his
participation in the armed robbery, and the fact that Soler’s nickname was the
Spanish word for monster.
Lastly, Marquez asserts that the Connecticut Supreme Court unreasonably
applied federal law when it concluded that Soler’s purportedly perjured testimony
concerning his agreement with the prosecution was immaterial. Marquez Br. at
60 (citing Napue v. Illinois, 360 U.S. 264 (1959)). Again, we disagree. The
Connecticut Supreme Court correctly acknowledged that, in cases involving
perjured testimony, “reversal is virtually automatic . . . unless the state’s case is so
overwhelming that there is no reasonable likelihood that the false testimony could
have affected the judgment of the jury.” Marquez, 330 Conn. at 594 (internal
quotation marks and emphasis omitted). Nevertheless, after reviewing the
record before it, the court still concluded that, given the overwhelming evidence
against Marquez, “Soler’s allegedly false testimony and the prosecutor’s failure to
correct it were immaterial under Brady.” Id. at 603. Reviewing the record de
novo, including the ample evidence linking Marquez to the crimes, we cannot say
9 that the Connecticut Supreme Court’s materiality determination involved an
unreasonable application of clearly established federal law. The district court
therefore did not err in denying Marquez’s petition.
We have considered Marquez’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court