Friedman v. Rehal

08-0297-pr
Friedman v. Rehal

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________________

August Term, 2008
(Argued: July 8, 2009 Decided: August 16, 2010)

Docket No. 08-0297-pr
__________________

JESSE FRIEDMAN ,
Petitioner-Appellant,
—v.—

JOE REHAL , Parole Officer,
ROBERT DENNISON , Chairman of the New York State Division of Parole, and
ANDREW CUOMO , Attorney General of the State of New York,

Respondents-Appellees.
__________________

Before:
POOLER and RAGGI, Circuit Judges, and KORMAN , District Judge.*
__________________

An appeal from a judgment of the United States District Court for the Eastern District of

New York (Seybert, J.) which dismissed as untimely a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254.

AFFIRMED . Judge Raggi concurs in part in a separate opinion.

JENNIFER BONJEAN (Ronald L. Kuby, David Pressman, on the brief),
Law Offices of Ronald L. Kuby, New York, N.Y., for
Petitioner-Appellant.

JUDITH R. STERNBERG , Assistant District Attorney (Kathleen M.
Rice, District Attorney, Peter A. Weinstein, Assistant District

*
The Hon. Edward R. Korman, of the United States District Court for the Eastern
District of New York, sitting by designation.
 Attorney of Counsel, on the brief), Nassau County, N.Y., for
Respondents-Appellees.

EDWARD R. KORMAN , District Judge:

This is an appeal from the denial of a writ of habeas corpus in a case in which petitioner who

pled guilty seeks habeas corpus relief on the ground that exculpatory evidence was withheld from

him. Because his petition was not filed timely, he also argues that his failure to do so should be

excused on the ground that he is actually innocent. We affirm the judgment of the United States

District Court for the Eastern District of New York (Seybert, J.) denying the writ without reaching

the latter issues, because we conclude that the grounds asserted in the petition would not justify

habeas corpus relief.

BACKGROUND

We summarize below the facts as alleged in the petition, as well as the affidavits and

supporting materials, including the transcript used in the documentary film Capturing the

Friedmans, and the memoranda of interviews taken in preparation for the film. These materials,

some of which were also filed as part of the record in petitioner’s post-judgment motion in the

Nassau County Court, are included as part of the record in the district court. The District Attorney’s

submission in opposition to the petition focused principally on whether the petition was timely filed

and not on the merits of the allegations in the petition.

A. The Investigation

In 1982, Arnold Friedman, a retired school teacher, began teaching computer classes to

children in his family’s home in Great Neck, New York. In September 1984, Arnold asked

petitioner, Jesse Friedman, the youngest of his three sons, to assist him in teaching classes. Petitioner

2
was fifteen years old, and in tenth grade, at the time. Petitioner continued to assist his father until

September 1987, when he left to attend college.

After a customs agent intercepted a package containing child pornography addressed to

Arnold Friedman, federal agents obtained a search warrant and executed a search of the Friedman

home. During the search, they seized a list of names and phone numbers of eighty-one students

enrolled in Arnold Friedman’s computer classes. Subsequently, Detective Sergeant Fran Galasso,

head of the Nassau County Police Department’s Sex Crime Unit, sent out two-detective teams to

interview students who were currently or formerly enrolled in Arnold Friedman’s computer classes

about possible abuse.

On November 25, 1987, Arnold Friedman and petitioner were arrested on a felony complaint

alleging child sexual abuse. Between December 1987 and November 1988, petitioner was charged

with two hundred and forty-three counts of sexual abuse in three separate indictments and arraigned

in the County Court, Nassau County (Boklan, J.). The indictments originally included allegations

from fourteen complainants, all male children ranging in age from eight to twelve years old.

Prosecutors had no physical evidence and relied entirely on allegations made by computer students

after being questioned by Nassau County detectives. No student had ever complained of abuse, nor

had any parent ever observed suspicious behavior, prior to the investigation. Indeed, Assistant

District Attorney Onorato acknowledged that “there was a dearth of physical evidence.” [Capturing

the Friedmans Tr. 36, A-316.] Nor was this what he described as “the best case scenario,” where

“you would like to find videotapes of Mr. Friedman actually sexually abusing the children or at the

very least some photographs of some of the children in sort of compromising sexual positions.”

3
Onorato admits that “[w]e didn’t find any of that.” [Jarecki Aff. ¶ 10 (quoting “DVD Extra

Material”), A-429.]

The Nassau County Police Department never produced transcripts, recordings, or videotapes

of the student interviews that preceded the indictments. Moreover, because Arnold Friedman and

petitioner ultimately pled guilty, the circumstances surrounding the interviews were not explored

at trial. Some former students and their parents, however, recall with great consistency that

detectives employed aggressive and suggestive questioning techniques to gain statements from

children who had attended Arnold Friedman’s computer classes. Detectives generally entered an

interview with a presumption that a child had been abused and refused to accept denials of abuse.

If a child denied being the victim of abuse on a first visit, detectives would often visit the child

repeatedly for followup interviews, each lasting as long as four hours, until the child admitted abuse.

In one case, detectives visited a child fifteen times and assured the child’s mother before the final

visit that they were going to stay “as long as it takes.” [Kuhn Aff. ¶ 10, A-530.]

Likewise, detectives often insisted that they knew that the child they were interviewing had

been abused. For example, detectives would often tell children that Arnold Friedman or petitioner

had already admitted molesting them or that other students had claimed to have observed them being

molested. As one former student described it,

I remember that they made specific suggestions to me about things that they believed
happened in the computer classes, and that they told me repeatedly that other
students in my class had already told them that they had been abused, and that they
were certain that in fact I had also been abused and that I should tell them so.

[Brian Tilker Aff. ¶ 5, A-790.] This strategy was designed to force children to agree with the

detectives’ story. Detective Squeglia, who conducted many interviews in the case, explained in a

recorded interview:

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 Well, if you talk to a lot of children, you don’t give them an option, really. . . . [Y]ou
have to tell them pretty honestly that we know you went to Mr. Friedman’s class, we
know how many times you’ve been to the class. You know – we go through the
whole routine. We know there was a good chance that he touched you or Jesse
touched you or somebody in that family touched you in a very inappropriate way.

[Squeglia Tr., Capturing the Friedmans Interview, A-459.]

The detectives would reward cooperative children with “pizza parties” and police badges.

When children did not admit to experiencing sexual abuse, however, detectives would persist in their

questioning, sometimes taunting the children for failing to offer the desired answers. The tactics

were so aggressive that several former students admit that they responded to them by falsely alleging

instances of abuse. Although these children were aware that they were lying to the detectives, they

ultimately surrendered to the pressure and “remembered” instances of abuse just to “get [the

detectives] off [their] back[s].” [See Capturing the Friedmans Tr. 99, A-379; Brian Tilker Aff.

¶¶ 8–9, A-790.]

These questioning techniques were used in the police interview of Gary Meyers, a former

computer student, which was secretly videotaped by his mother. The videotape portrayed detectives

using “hostile techniques,” including “suggestive and harassing questioning,” while interrogating

Meyers, who was then thirteen years old. Throughout the videotape, detectives pressured Meyers

to admit that he was sexually abused. Nevertheless, Meyers maintained that he was never exposed

to or witnessed any abuse. When Meyers refused to admit sexual abuse, a detective told Meyers’s

mother that he did not “like his answers” and referred to Meyers as a “wise guy.” [See Meyers Tr.,

A-804.] At some point before the third indictment was handed down, either Arnold Friedman or

petitioner informed petitioner’s attorney, Peter Panaro, about the videotaped interview. Panaro

claims that after viewing the videotape, he informed Assistant District Attorney Joe Onorato about

5
it and requested that Onorato provide any evidence of similar “hostile” techniques employed during

eyewitness interrogations. The prosecution did not turn over any evidence that detectives used

similar techniques during other interviews.

As the detectives continued to aggressively pursue potential victims, the charges against

petitioner expanded dramatically in both number and scope. While the first indictment included

fifty-four counts, ten of which were against petitioner, the third indictment included three hundred

and two counts, one hundred and ninety-eight of which were against petitioner. The allegations also

grew increasingly bizarre, sadistic, and even logistically implausible. For example, the third

indictment described several group molestation exercises, including “Leap Frog,” in which Arnold

Friedman and petitioner allegedly sodomized an entire class of naked boys by “leaping” from one

to the next.

As the case expanded, members of the Nassau County District Attorney’s office also began

to speculate that a “sex ring” had been operating from the Friedman home and that other teenagers

had been involved. Petitioner alleges that, through great pressure, the District Attorney was able to

secure a cooperation agreement from an acquaintance of petitioner, Ross Goldstein, in exchange for

a favorable plea agreement. Goldstein had until then vehemently denied any knowledge or

involvement. Indeed, more than half of the charges against Goldstein were alleged to have taken

place before the petitioner and Goldstein had even met. According to John Roe, who was one of two

additional teenagers suspected of involvement in a “sex ring,” Goldstein later admitted that he had

falsely implicated others under “intense pressure from the police to come up with anything that

seemed like cooperation.” [Jarecki Aff. ¶ 12 (quoting “DVD Extra Material”), A-430.]

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 Due to the “nature of the charges” and the extent of allegations, “the community [was] in an

uproar.” [Richard Tilker Aff. ¶ 10, A-787.] The Parent-Teacher Association of Great Neck

(“P.T.A.”) sponsored letter writing campaigns and community meetings to reach out to former

computer students and their families. In December 1987 and January 1988, Great Neck held two

community meetings, sponsored by the school district and the P.T.A., designed to advise parents on

the community resources available to deal with child abuse. See William S. Dobkin, Great Neck

Community Marshals its Resources to Deal with Child Abuse and Child-Sex Crime, Great Neck

Record, Feb. 4, 1988, at 5A. About fifty parents attended the first meeting and about three hundred

parents attended the second meeting. Id. The meetings presented “expert advice” from such speakers

as Detective Sergeant Fran Galasso, Assistant District Attorney Joe Onorato, id., and Dr. Sandra

Kaplan, a therapist treating many of the alleged victims in the case. Id. The expert advice was

simple: every former student should be considered a victim and should seek therapy immediately.

Parents of non-complainants recall “a tremendous amount of [social] pressure for children

to join the case.” [Richard Tilker Aff. ¶ 10, A-787.] When a child denied abuse, their parents were

told that the child was “in denial.” [See Capturing the Friedmans Tr. 38–39, A-318–19; Richard

Tilker Aff. ¶¶ 9–10, A-786–87; Brian Tilker Aff. ¶ 10, A-791; Forrest Aff. ¶ 5, A-798.] Great Neck

had defined itself as a “victimized community,” and those who refused to define themselves as

victims no longer “fit in[.]” [Capturing the Friedmans Tr. 38, A-318.]

Local newspapers published numerous stories with detailed allegations from the case and

extensively covered the community’s outreach programs. The P.T.A. organized car-pools to

transport community members to court appearances. Despite the highly explosive nature of the

charges, accompanied by what Judge Abbey Boklan, the presiding judge, described as a “media

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frenzy” [Jarecki Aff. ¶ 9 (quoting “DVD Extra Material,” Capturing the Friedmans), A-429], Judge

Boklan permitted the case to become the first in Nassau County in which cameras were allowed in

the courtroom. As Judge Boklan explained, “It was something the community was very interested

in, the media was very interested in . . . . I wasn’t that concerned about protecting the defendants.

Their pictures[,] their names were all over the newspapers, so their reputation [sic] at that point was

[sic] not too good.”[Jarecki Aff. ¶ 9 (quoting “DVD Extra Material,” Capturing the Friedmans), A-

429.] Notwithstanding the atmosphere she described, Judge Boklan denied petitioner’s application

for a change of venue.

On March 25, 1988, Arnold Friedman pled guilty to forty-two counts of child sexual abuse,

at least in part because he believed petitioner would have a better chance at a fair trial that way.

Nevertheless, the plea had the opposite effect. Specifically, after Arnold Friedman pled guilty, he

was compelled to give the police a “close-out” statement in which he was asked to confirm that he

had molested each child on a list of students. He was told that he would be granted immunity if he

confessed to misconduct, but that any child he declined to admit molesting could be the source of

further charges against him. In response, Arnold Friedman admitted to molesting each child on the

list. Detectives proceeded to share the close-out statement with families of non-complainants to elicit

further accusations against petitioner and to discourage former students from publicly supporting

petitioner or agreeing to testify on his behalf. Moreover, on June 24, 1988, Newsday, the newspaper

with the largest circulation in Nassau County, published a story that disclosed that Arnold Friedman

“identified about 80 [additional] boys he had sexually abused” in the close-out statement. [See Pet’r

Aff. ¶ 29, A-157.]

B. Petitioner’s Guilty Plea & Sentencing

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 Petitioner—who was then only nineteen years old—alleges that he faced enormous pressure

to plead guilty. The motion he made for a change of venue had been denied. The leak described

above significantly added to the already hostile atmosphere that made a fair trial impossible. The

Nassau County District Attorney’s office did everything it could to force petitioner to plead guilty.

After the second indictment, for example, Assistant District Attorney Onorato advised petitioner’s

attorney, Panaro, that if petitioner refused to plead guilty his office would obtain a third indictment

which would include “many more charges than both previous indictments combined, and those

charges would be much more serious.” [Panaro Aff. ¶ 5, A-762.] When petitioner declined to plead

guilty, Onorato followed through with his threat. Petitioner was also aware that investigations were

brewing against his two brothers and many of his high school friends, a threat which he took

seriously in light of the growing magnitude of allegations.

Morever, Judge Boklan acknowledged that “[t]here was never a doubt in [her] mind” as to

petitioner’s guilt. [Capturing the Friedmans Tr. 33, A-313], and even before she had heard any of

the evidence she expressly informed Panaro that, if petitioner went to trial, she intended to sentence

him consecutively on every count. Petitioner had until then strenuously resisted the efforts to coerce

a plea and vehemently maintained his innocence. Panaro had also been convinced that petitioner was

innocent:

I already found it quite incredible that sexual abuse of that scope and severity alleged
could have taken place without a single child complaining or showing other signs of
abuse. I also believed that the hysteria surrounding the case could well be responsible
for the ever growing number of charges . . . . My common sense and logic told me
that scores of children, including the 14 children who were complainants against
[petitioner], could not be repeatedly sodomized and sexually abused hundreds of
times, over a period of four years, day in and day out, and say nothing. After all these
were not 3 and 4 year old boys. They were between 8 and 11 years old. I felt that the
idea that no one would have said a word, and that in fact some of the most significant

9
 complainants would sign up for multiple classes after having been violently abused
in the prior classes, was ridiculous.

[Panaro Aff. ¶ 19, A-766–67.]

Nevertheless, after Judge Boklan’s threat, petitioner told Panaro that he wanted to plead

guilty “because he believed that if he went to trial he would be found guilty and would spend almost

the remainder of his life in jail.” [Panaro Aff. ¶ 12, A-764.] Panaro told him that he “would not

represent him on a guilty plea unless he was guilty and that [Panaro] could not ethically allow

[petitioner] to plead guilty if he was maintaining his innocence to [Panaro].” [Panaro Aff. ¶ 12, A-

764.] In response to Panaro’s erroneous insistence on an admission of guilt,1 petitioner told Panaro

that he had committed the charged offenses, that he had been a victim of sexual abuse by his father,

and that his father had coerced him into molesting students.

On December 20, 1988, petitioner pled guilty to Sodomy in the First Degree (seventeen

counts), Use of a Child in a Sexual Performance (one count), Sexual Abuse in the First Degree (four

counts), Attempting Sexual Abuse in the First Degree (one count), and Endangering the Welfare of

a Minor (two counts), in full satisfaction of the three indictments filed against him. The minutes of

1
Both the Supreme Court and the New York Court of Appeals have held that a
defendant may plead guilty without explicitly admitting his guilt provided that it is a knowing and
voluntary plea. See North Carolina v. Alford, 400 U.S. 25, 37–38 (1970); People v. Serrano, 15
N.Y.2d 304, 310 (1965). “Thus a conviction based on [such] a plea of guilty simply reflects the fact
that for some reason, sufficient to the defendant, he decided to waive his trial rights.” People v.
Grant, 45 N.Y.2d 366, 379 (1978). Panaro’s insistence on an admission of guilt as a condition to
agreeing to representing him in the guilty plea is difficult to reconcile with these cases.

10
the plea are not available.2 Judge Boklan sentenced petitioner to multiple concurrent terms, the

longest of which was six to eighteen years. Petitioner did not appeal.

A few weeks after petitioner pled guilty, he gave a televised interview to Geraldo Rivera in

which he repeated his confession and the story that his father had sexually abused him. Petitioner

explains that he confessed to Panaro only so that Panaro would permit him to plead guilty, and that

he submitted to the television interview “in what [he] believed to be a last-ditch effort to obtain

public sympathy and explain [him]self in some way.” [Pet’r Aff. ¶ 40, A-161–62.] Specifically, he

made up the story about his father molesting him as a child because he believed it might insulate him

from attacks in prison and might persuade Judge Boklan to ask the parole board for leniency on his

behalf.

While in prison, petitioner was denied parole four times apparently because he refused to

reiterate his guilt during a sex-offense therapy treatment program, as would have been required to

successfully complete the program. See Susan Bandes, The Lessons of Capturing the Friedmans:

Moral Panic, Institutional Denial and Due Process, 3 Law Culture & Human. 293, 304–05 (2007).

After serving thirteen years in prison, petitioner was ultimately paroled on December 7, 2001. Judge

Boklan held a sex offender registration classification hearing on January 7, 2002, in which she

classified petitioner a level III “violent sexual predator” under the Sex Offender Registration Act

(New York Correction Law article 6-C).

2
Because petitioner did not take a direct appeal, the transcript of the plea of guilty was
never prepared. Petitioner alleges that he and his attorneys made “exhaustive efforts to obtain those
transcripts subsequent to his release from prison but have been repeatedly told that the transcripts
are unavailable because the stenographer is no longer employed by Nassau County and did not leave
behind [stenographic] notes from [petitioner’s] guilty plea proceedings.” [Pet’r Supplemental Br.
at 13 n.6.]

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 C. Post-Conviction Proceedings

In 2000, documentary filmmaker Andrew Jarecki began a three-year investigation of Arnold

Friedman and petitioner’s story for his film, Capturing the Friedmans. Jarecki interviewed many

individuals who were involved with the original criminal investigation of Arnold Friedman and

petitioner, including former computer students, detectives, attorneys, and family members. Petitioner

first viewed the completed film on January 10, 2003. The film’s producers permitted petitioner to

view the underlying documents and footage from the film in July 2003.

Through the film, petitioner claims to have discovered a large volume of information he had

never seen before regarding tactics used by detectives and therapists to obtain accusations of abuse

from some of the complainants. The film also depicted an anonymous student, described as the

source of thirty-five sodomy counts, claiming he was subjected to hypnosis prior to recalling abuse.

According to the anonymous student, whom the third indictment referred to as “Gregory Doe” [see

Indictment 69783, A-96–103], he did not recall any sexual abuse until after he went through

hypnosis: “I just remember that I went through hypnosis, came out, and it was in my mind” [Gregory

Doe Tr. 28, A-692]. This former student’s therapist, however, claims that “[a]t no time during this

patient’s treatment did [she] ever use hypnosis” [Parks Aff. ¶ 4, A-867], and Assistant District

Attorney Onorato claims that he was unaware of any specific treatment undergone by any

complainant. Petitioner argues that other evidence suggests hypnosis was used more broadly.

On January 7, 2004, petitioner filed a post-judgment motion in the County Court, Nassau

County, seeking to vacate the December 20, 1988 judgment based on evidence he first discovered

after watching Capturing the Friedmans on January 10, 2003. Petitioner argued that, pursuant to

Brady v. Maryland, 373 U.S. 83 (1963), he was entitled to the disclosure of the newly discovered

12
information prior to the entry of his guilty plea. Relying on United States v. Ruiz, 536 U.S. 622

(2002), the Nassau County Court denied the petitioner’s motion. On March 10, 2006, the Appellate

Division denied petitioner’s application for leave to appeal, at which point petitioner had exhausted

his state remedies.

On June 23, 2006, petitioner filed a petition for a writ of habeas corpus in the Eastern District

of New York. Petitioner argued that the film Capturing the Friedmans brought to light new evidence

that (1) some eyewitnesses had initially denied sexual abuse, (2) detectives used interrogation

methods known for eliciting false accusations, and (3) at least one suggestive memory recovery

tactic—hypnosis—was used to induce memory recall by Gregory Doe before he made an accusation.

Petitioner alleged that he would not have pled guilty if he had been aware of this undisclosed

evidence.

On July 20, 2007, the district judge dismissed petitioner’s first and second claims as untimely

but reserved decision on the third claim. On January 4, 2008, the district judge held that petitioner’s

third claim, which alleged that the prosecution failed to disclose the use of hypnosis on at least one

accuser, was untimely. The district judge subsequently granted a certificate of appealability.

DISCUSSION

I.

The only claim petitioner presses on appeal is the Brady claim that the prosecution should

have disclosed the use of hypnosis to induce complainants to recall instances of sexual abuse. We

conclude that this claim is untimely. Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a defendant has one year from the

date his conviction becomes final to file a petition for habeas relief. Nevertheless, AEDPA provides

13
several exceptions. Wims v. United States, 225 F.3d 186, 190 (2d Cir. 2000). One such exception

restarts the statute of limitations period from “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)(D).

Petitioner invokes this factual predicate exception. Specifically, he alleges that he did not

become aware of the relevant evidence until he viewed the film Capturing the Friedmans on January

10, 2003. Nevertheless, petitioner’s Brady claim was untimely because, although he knew, or should

have known through the exercise of due diligence, that the prosecution may have withheld the

relevant information when or soon after he viewed the film on January 10, 2003, he failed to file a

habeas petition within one year of that date. Instead, on January 7, 2004, three hundred and sixty-

two days after petitioner first viewed Capturing the Friedmans, he filed a post-judgment motion to

vacate his conviction. This ultimately unsuccessful effort to obtain relief ended on March 10, 2006,

when the Appellate Division denied his application for leave to appeal. Petitioner then had three

days remaining within the statutory period to file a writ of habeas corpus. Petitioner did not file the

petition until June 23, 2006, more than three months late.3

A claim of actual innocence could provide a basis for excusing this late filing even though

petitioner pled guilty. See Doe v. Menefee, 391 F.3d 147, 161 (2d Cir. 2004). While petitioner did

not expressly raise such a claim, he argues that the allegations contained in the petition, along with

3
On January 18, 2006, petitioner submitted an application for leave to appeal to the
New York Court of Appeals, but the application was unauthorized under N.Y. Criminal Procedure
Law §§ 450.10 & 450.15 and was dismissed on May 24, 2006, see People v. Friedman, 6 N.Y.3d
894 (2002). An effort to exhaust state remedies by procedures that are not authorized by state law
does not toll the one-year statute of limitations. See Artuz v. Bennett, 531 U.S. 4, 9 (2000); see also
Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000).

14
evidence submitted in support of those allegations, were sufficient to alert the district judge to

consider actual innocence as a basis for excusing his untimely filed petition. We need not resolve

the issue here, however, because we conclude that, even if the petition is deemed to be timely,

petitioner’s Brady claim fails on the merits.

Under AEDPA, to prevail on a petition for a writ of habeas corpus, a petitioner confined

pursuant to a state court judgment must show that the court’s “adjudication of the claim . . . resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

“[C]learly established Federal law” refers to holdings of the Supreme Court, as opposed to dicta, as

of the time of relevant state court decisions. Carey v. Musladin, 549 U.S. 70, 74–75 (2006); Williams

v. Taylor, 529 U.S. 362, 412 (2000). A decision is “contrary to” federal law “if the state court arrives

at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state

court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable

facts.” Williams, 529 U.S. at 413. An “unreasonable application” occurs when a “state court

identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts

of the [petitioner’s] case.” Id. “Unreasonableness is determined by an ‘objective’ standard.” Gersten

v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005) (quoting Williams, 529 U.S. at 409). Moreover, the

Supreme Court has held that “unreasonableness” should not be conflated with “clear error” because

“[t]he gloss of clear error fails to give proper deference to state courts.” Lockyer v. Andrade, 538

U.S. 63, 75 (2003).

In United States v. Ruiz, 536 U.S. 622 (2002), the Supreme Court reaffirmed its earlier

holding that a defendant is entitled to information necessary to ensure that his plea is voluntary, and

15
that any related waiver of his rights are made ‘knowing[ly], intellingent[ly], [and] with sufficient

awareness of the relevant circumstances and likely consequences.’” Id. at 629 (quoting Brady v.

United States, 397 U.S. 742, 748 (1970)) (alterations in original). Nevertheless, because

“impeachment information is special in relation to the fairness of a trial, not in respect to whether

a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficient[ly] aware’),” Ruiz, 536 U.S. at 629

(emphasis in original), the Supreme Court held that the failure to disclose such information prior to

a guilty plea does not violate the Due Process Clause. While the Supreme Court acknowledged that

“the more information the defendant has, the more aware he is of the likely consequences of a plea,

waiver, or decision, and the wiser that decision will likely be,” it held that “the Constitution does

not require the prosecutor to share all useful information with the defendant.” Id.; cf. Padilla v.

Kentucky, 130 S. Ct. 1473, 1480 (2010) (holding that because “deportation is an integral part . . . of

the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes,”

defense counsel must apprise a pleading defendant of that consequence (footnote omitted)).

Petitioner characterizes the use of hypnosis as “exculpatory” evidence, a type of material

Ruiz did not explicitly address. We disagree. The fact that hypnosis may have been used to stimulate

memory recall and potentially induce false memories of abuse is a circumstance that would fit

comfortably under the general understanding of impeachment evidence—evidence that “is offered

to ‘discredit a witness . . . to reduce the effectiveness of [her] testimony by bringing forth evidence

which explains why the jury should not put faith in [her] or [her] testimony.’” Chiasson v. Zapata

Gulf Marine Corp., 988 F.2d 513, 517 (5th Cir. 1993) (alterations in original). There are generally

five types of evidence used for this purpose, one of which relates to the capacity of a witness to

observe, remember, or recount events. 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal

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Evidence § 6.75, at 504 (3d ed. 2007).

Even if hypnosis evidence comes within Brady’s broader definition of exculpatory evidence,

the petition must still be denied. Before Ruiz, in proceedings to which the AEDPA standard of

review did not apply, we held that “[t]he government’s obligation [under Brady] is pertinent not only

to an accused’s preparation for trial but also to his determination of whether or not to plead guilty.”

United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998).4 Petitioner is correct that Ruiz did not

expressly abrogate this holding as applied to all Brady material. Nevertheless, the Supreme Court

has consistently treated exculpatory and impeachment evidence in the same way for the purpose of

defining the obligation of a prosecutor to provide Brady material prior to trial, see United States v.

Bagley, 473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150, 153–54 (1972), and the

reasoning underlying Ruiz could support a similar ruling for a prosecutor’s obligations prior to a

guilty plea, see 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 24.3(b), at 369

(3d ed. 2007).5

4
Some commentators argue that, because not all of the reasoning in Ruiz would “apply
with equal force to disclosure of purely exculpatory information,” it is “unclear whether Ruiz
overrules all of the Second Circuit precedent in this area or whether the Second Circuit’s recognition
of a right to disclosure of purely exculpatory information prior to a guilty plea survives.” Gordon
Mehler, John Gleeson, & David C. James, Federal Criminal Practice: A Second Circuit Handbook,
§ 18-6, at 302 (10th ed. 2010). Specifically, they refer to the Supreme Court’s observation that
impeachment information provides limited help to defendants at the plea stage and a rule requiring
disclosure prior to trial would potentially endanger government witnesses whose identities were
disclosed prior to trial. See id. (citing Ruiz, 536 U.S. at 629–32.) “The same reasoning would not
apply with equal force to disclosure of purely exculpatory information, since such information
would presumably be of greater assistance to a defendant in deciding whether to plead guilty and
would not necessarily create a danger to government witnesses.” Id.
5
This reading of Ruiz finds support in its additional holding, “for most (though not all)
of the reasons” given for its holding relating to impeachment evidence, rejecting the argument that
the Constitution requires the pre-plea disclosure of information supporting any affirmative defense.
Ruiz, 536 U.S. at 633.

17
 We need not, however, address this issue here. It is enough to say that the holding of the

Nassau County Court, consistent with prior holdings of the Appellate Division from which this case

arises, see, e.g., People v. Day, 541 N.Y.S.2d 463, 467 (2d Dep’t 1989),6 does not constitute an

“unreasonable application” of Supreme Court precedent as 28 U.S.C. § 2254(d)(1) requires. See,

e.g., Carey, 549 U.S. at 77 (“No holding of this Court required the [state] Court of Appeal to apply

the test of [prior holdings to the] conduct [relevant] here. Therefore, the state court’s decision was

not contrary to or an unreasonable application of clearly established federal law.”); see also

Rodriguez v. Miller, 537 F.3d 102, 106 (2d Cir. 2008). Indeed, in a pre-AEDPA habeas corpus case,

decided prior to Ruiz, the Fifth Circuit held that a defendant’s Brady claim was not cognizable on

habeas review because the application of Brady to a guilty plea would, at best, constitute a “new

rule—one that seeks to protect a defendant’s own decision making regarding the costs and benefits

of pleading and of going to trial.” Matthew v. Johnson, 201 F.3d 353, 362 (5th Cir. 2000) (en banc).

Thus, even if petitioner succeeds in establishing his actual innocence as a predicate to avoiding the

time-bar, the petition would have to be denied.

II.

While the law may require us to deny relief in this case, it does not compel us to do so

without voicing some concern regarding the process by which the petitioner’s conviction was

obtained. The magnitude of the allegations against petitioner must be viewed in the context of the

late-1980’s and early-1990’s, a period in which allegations of outrageously bizarre and often

6
Although the New York Court of Appeals has never addressed the issue of whether
Brady material must be disclosed to a defendant prior to a guilty plea, various departments of the
Appellate Division are split on this issue. See 7 N.Y. Prac., New York Pretrial Criminal Procedure
§ 11:15 n.12 (citing cases).

18
ritualistic child abuse spread like wildfire across the country and garnered world-wide media

attention. See, e.g., Susan Bandes, The Lessons of Capturing the Friedmans: Moral Panic,

Institutional Denial and Due Process, 3 Law Culture & Human. 293, 294 (2007) (noting that the

accusations against Arnold and Jesse Friedman arose at “a time at which concern about day care

sexual abuse had reached a fever pitch both in the United States and abroad”). The media

sensationalized these allegations, generating a national perception that sex rings were widespread

and had infiltrated average communities. See, e.g., Devil Worship: Exposing Satan’s Underground,

Geraldo Rivera (NBC television broadcast Oct. 28, 1988).

Vast moral panic fueled a series of highly-questionable child sex abuse prosecutions.7 See

Samuel P. Gross, Exonerations in the United States 1989 through 2003, 95 J. Crim. L. &

Criminology 523, 539–40 (2005). See generally Dorothy Rabinowitz, No Crueler Tyrannies:

Accusation, False Witness, and Other Terrors of Our Times (2003). By 1991, for example, 25

percent of prosecutors had handled at least one case involving satanic abuse. See Elizabeth F. Loftus

& Deborah Davis, Recovered Memories, 2 Annu. Rev. Clin. Psychol. 469, 477 (2006). Although

many of these cases included “fantastical accusations,” such as those of satanic abuse—a strand of

accusations which has been discredited entirely—others involved allegations of real and serious

7
See, e.g., Commonwealth v. Amiraults, Nos. 85-69, 85-70, 85-72, 85-75, 85-77, 85-
80, 85-2653, 85-2654, 85-2657, 85-2659, 85-2662, 85-2668 (Mass. Super. Ct. Middlesex County
1985), 677 N.E.2d 654, 424 Mass. 618 (1997) (“Fells Acre case”); State v. Jones, 643 N.E.2d 547,
71 Ohio St. 2d 293 (1994); State v. Michaels, 625 A.2d 489 (N.J. Super. App. Div. 1993) (“Wee
Care Nursery School case”); State v. Kelly, No. 91-CRS-4250-4363 (N.C. Super. Crim. Ct. Apr. 22,
1992) (“Little Rascals Day Care case”); State v. Fijnje, No. 89-43952 (Fla. Cir. Ct. Dade County
May 4, 1991) (“Old Cutler Presbyterian case”); People v. Buckey, No. A-750900, A-753005 (Cal.
Mun. Ct. L.A. County 1984), No. A-A750900 (Cal. Super. Ct. L.A. County 1990) (“McMartin
Preschool case”); State v. Fuster, No. 84-19728 (Fla. Cir. Ct. Dade County Oct. 9, 1985) (“Country
Walk Babysitting Service case”); People v. Kniffen, Nos. 33610, 33624, 33700 (Cal. Mun. Ct. Kern
County), No. 24208 (Cal. Super. Ct. Kern County 1982) (“Bakersfield case”).

19
crimes committed in an impossible manner. Bandes, supra, at 301. In the Fells Acre case, for

example, Gerald Amiraults, a member of a family which owned the Fells Acre pre-school, allegedly

“plunged a wide-blade butcher knife into the rectum of a 4-year-old boy, which he then had trouble

removing.” Dorothy Rabinowitz, Martha Coakley’s Convictions, Wall St. J., Jan. 15, 2010, at A19.

According to a child witness, a teacher in the school saw Amiraults with the knife, asked what he

was doing, and then told him not to do it again. “On this testimony, Gerald was convicted of a rape

which had, miraculously, left no mark or other injury.” Id.

Overall, at least seventy-two individuals were convicted in nearly a dozen major child sex

abuse and satanic ritual prosecutions between 1984 and 1995, although almost all the convictions

have since been reversed. See Gross, supra, at 540 & n.40. Some defendants, fearing trial, pled

guilty or “no contest” to impossible acts of ritualistic abuse, and in some cases they provided

detailed confessions in exchange for immunity or generous plea bargains. See Debbie Nathan &

Michael Snedeker, Satan’s Silence: Ritual Abuse and the Making of a Modern American Witch

Hunt 160–77 (1995). Many have described these widespread prosecutions as a modern-day “witch

hunt.” See generally, e.g., Richard Guilliatt, Talk of the Devil: Repressed Memories and the Ritual

Abuse Witch-Hunt (1996); Nathan & Snedeker, supra; Elizabeth Loftus & Katherine Ketcham, The

Myth of Repressed Memory: False Memories and Allegations of Sexual Abuse (1994); Richard A.

Gardner, Sex Abuse Hysteria: Salem Witch Trials Revisited (1992).

These prosecutions were largely based on memories that alleged victims “recovered” through

suggestive memory recovery tactics, including those petitioner claims were used in this case. Indeed,

the dramatic increase in conspiratorial charges of child sexual abuse has been traced to a relatively

small group of clinical psychologists who supported the psychoanalytic notion of “repressed

20
memories” and encouraged patients to employ extensive “memory recovery procedures” to “break

through the barrier of repression and bring memories into conscious awareness.” Loftus & Davis,

supra, at 470–71, 483–86; see also Kamala London et al., Disclosure of Child Sexual Abuse: What

Does the Research Tell Us About the Ways Children Tell?, 11 Psychol. Pub. Pol. & L. 194, 213

(2005). Popular memory recovery procedures included hypnosis, age regression, dream

interpretation, guided abuse-related imagery, use of photographs to trigger memories, journaling,

and interpretation of symptoms as implicit memories. Loftus & Davis, supra, at 483–84. These

procedures and others commonly employed have great potential to induce false memories. See id.

at 484. Hypnosis, for example, has been shown to produce bizarre and impossible memories,

including memories of ritualistic satanic abuse, memories from early infancy, memories from past

lives, and memories from the future. Id.; see also Rock v. Arkansas, 483 U.S. 44, 59–61 (1987);

Borawick v. Shay, 68 F.3d 597, 603–04 (2d Cir. 1995). The prevailing view is that the vast majority

of traumatic memories that are recovered through the use of suggestive recovery procedures are

false, and that almost all—if not all—of the recovered memories of horrific abuse from the late-

1980’s and early-1990’s were false. See id. at 477.

Moreover, many highly-publicized and large-scale investigations into alleged child abuse

conspiracies were also accompanied by a variety of interviewing techniques designed to assist

children in recalling abuse—techniques which an extensive body of research suggests can induce

false reports. See, e.g., Sena Garven et al., More Than Suggestion: The Effect of Interviewing

Techniques From the McMartin Preschool Case, 83 J. Applied Psychol. 347, 347 (1998). Garven

et al. describes a “package” of techniques that, although based on a different highly-publicized

21
1980’s abuse case,8 are remarkably similar to the techniques employed in petitioner’s case. The

package included (1) “Suggestive Questions,” (2) “Other People” (telling the child that the

interviewer has already received information from other people regarding the topics of the

interview), (3) “Positive and Negative Consequences” (responding positively to accusations of abuse

and negatively to denials of abuse), (4) “Asked-and-Answered” (re-asking a child a question he or

she has already unambiguously answered), and (5) “Inviting Speculation.”9 Id. at 348–50.

Scholars have suggested that each interviewing technique can induce false reports on its own.

For example, they cite research which indicates that children often change their answer when asked

the same question more than once during an interview, either because they assume that the first

answer was incorrect or because they would like to please the adult interviewer. See Thomas D.

Lyon, Applying Suggestibility Research to the Real World: The Case of Repeated Questions, 65 Law

& Contemp. Probs. 97, 106 (2002). But the techniques have their greatest impact in combination.

Garven et al. examined the effect of the “package” of techniques described above on false

allegations of wrongdoing compared with suggestive questioning alone. See Garven et al., supra,

at 350. They found that children exposed to the package of techniques falsely alleged wrongdoing

over three times as often (58 percent of the time, compared to 17 percent of the time). Id. at 354.

8
The techniques were based on those used in the McMartin Preschool case, People
v. Buckey, No. A750900 (Cal. Super. Ct. 1990), in which seven teachers were accused of abusing
several hundred children over a ten-year period. None of the teachers were actually convicted. The
case, which took place in a Los Angeles suburb, began in 1983 and ran through 1990, and it remains
one of the longest and most expensive trials in California history. See Garven et al., supra, at 347.
9
These interviewing techniques are consistent with the theory that child abuse victims
tend to deny abuse at first but will eventually admit abuse if repeatedly questioned. This theory,
known as child sexual abuse accommodation syndrome (“CSAAS”), is now highly controversial.
See London et al., supra, at 195–96. Indeed, empirical support for the theory was largely based on
children who claimed they had experienced ritualistic satanic abuse. See id. at 211–13.

22
This error rate of nearly 60 percent occurred after less than five minutes of exposure to the combined

techniques. Id. Though the study examined children who were somewhat younger than the

complainants in petitioner’s case, see id. at 350, the results are instructive as to the general dangers

of suggestive interviewing techniques.

Finally, once individuals “recovered” memories of abuse or otherwise labeled themselves

victims of abuse, they were generally encouraged to participate in various activities on an individual

and community level to reinforce and develop existing memories of abuse. Loftus & Davis, supra,

at 483. There, proponents of recovered memories advised alleged victims to expand on existing

memories through suggestive memory recovery procedures (both in and out of therapy),

participation in survivor groups, and solicitation of consistent information from others, “all with

significant potential both to bias construction of historical narratives and to lead to confabulation

of false memories.” Id. When allegations of abuse span an entire community, these activities can

provide an outlet for community reinforcement—an outlet which can strengthen survivor identities

and foster the collective growth of increasingly inaccurate memories. See id.

When viewed in its proper historical context, petitioner’s case appears as merely one

example of what was then a significant national trend. This was a “heater case”—the type of “high

profile case” in which “tremendous emotion is generated by the public.” Bandes, supra, at 310. In

heater cases, the criminal process often fails:

Emotions like fear, outrage, anger and disgust, in situations like these, are entirely
human. The question is what the legal system can do to correct for the excesses to
which they lead. The crux of the moral panic dynamic is that the legal system, in
such cases, does not correct for them. It gets swept up in them instead.

Id. at 312. The record in this case suggests this is precisely the moral panic that swept up Nassau

County law enforcement officers. Perhaps because they were certain of Arnold Friedman and

23
petitioner’s guilt, they were unfazed by the lack of physical evidence, and they may have felt

comfortable cutting corners in their investigation. After all, “[t]horoughness is a frequent casualty

of such cases.” Id. at 309. The actions of the prosecution are also troubling. In representing the

sovereign, a prosecutor is a “servant of the law, the twofold aim of which is that guilt shall not

escape or innocence suffer.” Berger v. United States, 295 U.S. 78, 88 (1935). “[W]hile [a prosecutor]

may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from

improper methods calculated to produce a wrongful conviction as it is to use every legitimate means

to bring about a just one.” Id. Thus, prosecutors have an obligation to curb police overzealousness.

In this case, instead of acting to neutralize the moral panic, the prosecution allowed itself to get

swept up in it.

Petitioner has come forward with substantial evidence that flawed interviewing techniques

were used to produce a flood of allegations, which the then-District Attorney of Nassau County

wrung into over two hundred claims of child sexual abuse against petitioner. Petitioner never had

an opportunity to explore how the evidence against him was obtained. On the contrary, the police,

prosecutors, and the judge did everything they could to coerce a guilty plea and avoid a trial. Thus,

with the number of counts in the indictments and Judge Boklan’s threat to impose the highest

conceivable sentence for each charge, petitioner faced a virtually certain life sentence if he was

convicted at trial. And the likelihood that any jury pool would be tainted seemed to ensure that

petitioner would be convicted if he went to trial, regardless of his guilt or innocence. Nor could he

have reasonably expected to receive a fair trial from Judge Boklan, the former head of the Nassau

County District Attorney’s Sex Crime Unit, who admitted that she never had any doubt of the

defendant’s guilt even before she heard any of the evidence or the means by which it was obtained.

24
Even if innocent, petitioner may well have pled guilty.

As such, this case is unlike other appeals which raise concerns about the quality of the

evidence and the guilt of the defendant. In those appeals, we defer to the judgment of the jury after

the defendant has received a fair trial. We take comfort in “[t]he established safeguards of the

Anglo-American legal system [which] leave the veracity of a witness to be tested by cross-

examination, and the credibility of his testimony to be determined by a properly instructed jury.”

Hoffa v. United States, 385 U.S. 293, 311 (1966). In this case, the quality of the evidence was

extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a

properly instructed jury.

Judge Friendly observed in his seminal essay on habeas corpus that, “[a] remedy that

produces no result in the overwhelming majority of cases, . . . an unjust one to the state in much of

the exceedingly small minority, and a truly good one only rarely, would seem to need consideration

with a view to caring for the unusual case of the innocent man without being burdened by so much

dross in the process.” See Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal

Judgements, 38 U. Chi. L. Rev. 142, 148 (1970) (footnote omitted). The Supreme Court has not

finally resolved the issue of whether there is a federal Constitutional right to be released upon proof

of actual innocence. As Chief Justice Roberts recently observed, “Whether such a federal right exists

is an open question. We have struggled with it over the years, in some cases assuming, arguendo,

that it exists while also noting the difficult questions such a right would pose and the high standard

any claimant would have to meet.” District Attorney’s Office v. Osborne, 129 S. Ct. 2309, 2321

(2009) (citations omitted).

Nevertheless, even if we also assumed that such a federal right exists, and that petitioner

25
could meet the “high standard any claimant would have to meet” to obtain relief, we could not reach

that issue here. This is so because petitioner has not exhausted that claim in the New York State

courts even though the New York cases suggest that relief on this basis may be available pursuant

to N.Y. Crim. P. § 441.10(1)(h). See, e.g., People v. Day, 26 Misc. 3d 1205(A), 2009 WL 5191433,

*13 (N.Y. County Ct. Dec. 31, 2009); People v. Bermudez, No. 8759/91, 2009 WL 3823270, *22

(N.Y. Sup. Ct. Nov. 9, 2009); People v. Wheeler-Whichard, 884 N.Y.S.2d 304, 313 (Sup. Ct. 2009);

People v. Bozella, 25 Misc. 3d 1215(a), 2009 WL 3364575, *16 (N.Y. County Ct. Oct. 14, 2009);

People v. Cole, 766 N.Y.S.2d 477, 484–85 (Sup. Ct. 2003). Considering the facts of the case and

the circumstances that caused him to plead guilty, this case may be one in which the New York

courts may be particularly sympathetic to a proceeding seeking such relief.

The focus on the impediment to legal relief, however, should not obscure the continuing

ethical obligation of the District Attorney to seek justice. We refer here especially to New York

Rules of Professional Conduct 3.8, Comment 6B, which explains that “[t]he prosecutor’s duty to

seek justice has traditionally been understood not only to require the prosecutor to take precautions

to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable

remedial measures when it appears likely that an innocent person was wrongly convicted.” N.Y.

Rules Prof’l Conduct 3.8, cmt. 6B. In language particularly pertinent here, the Comment goes on

to say:

26
 [W]hen a prosecutor comes to know of new and material evidence creating a
reasonable likelihood that a person was wrongly convicted, the prosecutor should
examine the evidence and undertake such further inquiry or investigation as may be
necessary to determine whether the conviction was wrongful. The scope of the
inquiry will depend on the circumstances. In some cases, the prosecutor may
recognize the need to reinvestigate the underlying case; in others, it may be
appropriate to await development of the record in collateral proceedings initiated by
the defendant. The nature of the inquiry or investigation should be such as to provide
a “reasonable belief” . . . that the conviction should or should not be set aside.

Id.

The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully

convicted. The “new and material evidence” in this case is the post-conviction consensus within the

social science community that suggestive memory recovery tactics can create false memories and

that aggressive investigation techniques like those employed in petitioner’s case can induce false

reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was

aware of the suggestive questioning techniques that were used by the Nassau County police.10 More

importantly, the record does not speak to whether the then–District Attorney of Nassau County,

whose principal role was administering and overseeing the activities of one of the largest such

offices in the United States,11 was aware of the techniques used by the Nassau County detectives,

10
Although there are conflicting affidavits relating to whether Assistant District
Attorney Onorato was aware of the videotape made by the mother of Gary Meyers, a former
computer student, which vividly illustrates the suggestive techniques that the Nassau County
detectives employed to elicit accusations from Arnold Friedman’s former students, Onorato filed
an affidavit denying knowledge of the videotape or that petitioner’s attorney informed him that
“police officers were using inappropriate interviewing techniques.” [Onorato Aff. ¶ 5–6, A-869.]
11
The population of Nassau County in the late 1980s was approximately 1.3
million—the same as it is today. See 1 Nassau County Community Health Assessment, 2010 Update,
Demographic & Health Resource Data, at 4, available at http://www.nassaucountyny.gov/agencies/
Health/documents/VolumeOne-DemographicandHealthResourceDataCHA2010-2013withCover
Page.pdf. The staff of the District Attorney’s Office today exceeds 370. See Nassau County District
Attorney, ADA Career Opportunities, available at http://www.nassaucountyny.gov/agencies/da/

27
who were not members of his staff.

Only a reinvestigation of the underlying case or the development of a complete record in a

collateral proceeding can provide a basis for determining whether petitioner’s conviction should be

set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the

current Nassau County District Attorney, who was not responsible for the investigation and

prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case

suggested in the Comment to Rule 3.8.

III.

We add these brief words in response to Judge Raggi’s concurring opinion. While she joins

in the affirmance in the denial of the writ, she questions the need to “engage in a lengthy discussion

of the facts and circumstances that Friedman asserts led to his conviction,” and she expresses

understandable concern that these facts and circumstances were not developed at an evidentiary

hearing. Concurring Op., ante at 30. Nevertheless, she agrees with us that “the facts alleged are

disturbing and may well warrant further inquiry by a responsible prosecutor’s office,” although she

“cannot predict whether the outcome of any such inquiry will be favorable to petitioner, whose

conviction is based on a plea of guilty that he thereafter publicly confirmed.” Id.

Notwithstanding her reluctance to join “in the remainder of the opinion” beyond the

discussion necessary to resolve petitioner’s Brady claim, it bears emphasizing that all three members

of the panel are in agreement that this case “may well warrant further inquiry by a responsible

ada_career.html. While statistics relating to the size of the District Attorney’s Office are not
available for the period during which the events at issue took place, the fact that the population of
Nassau County has remained stable, combined with a reduced crime rate and serious fiscal problems,
if anything, suggests that the size of the office has not grown.

28
prosecutor’s office.” Id. We are likewise in agreement that it is not possible to “predict whether the

outcome of any such inquiry will be favorable to petitioner.” Id. Moreover, we too would have

preferred if the facts and circumstances were developed at a hearing. Nevertheless, we could not

order a hearing over the objection of the District Attorney, who declined to waive the defense of the

statute of limitations and permit such a hearing to be held.

Under these circumstances, the purpose of our “lengthy discussion of the facts and

circumstances that Friedman asserts led to his conviction,” id., is to make the case that a “further

inquiry by a responsible prosecutor’s office” is justified despite a guilty plea entered under

circumstances which clearly suggest that it was not voluntary. Indeed, passing over all of the

pressures described above that were brought to bear on petitioner, the threat Judge Boklan made to

petitioner’s counsel, Peter Panaro, that, “if Jesse were to go to trial, she intended to sentence him

to consecutive terms of imprisonment for each count that he was convicted on” [Pet’r Aff. ¶ 26, A-

156; Panaro Aff. ¶ 11, A-764] would be sufficient by itself to sustain a challenge to the plea if

Panaro’s affidavit is credited.12 Moreover, petitioner offered a plausible explanation for his post-plea

admission. Specifically, he made up a story attributing his conduct to the fact that he was molested

by his father as a child in the hope that it might insulate him from attacks in prison and might

persuade Judge Boklan to ask the parole board for leniency on his behalf.

12
See Gains v. Murray, No. 03-CV-016A, 2008 WL 4890249, at *5 (W.D.N.Y. Nov.
12, 2008) (collecting and summarizing New York caselaw regarding the propriety of comparable
judicial threats); see, e.g., People v. Stevens, 748 N.Y.S.2d 589, 590–91 (1st Dep’t 2002) (holding
that a defendant is coerced in pleading guilty when a trial judge indicates that the defendant is likely
to receive a much heavier sentence after trial); cf. Fielding v. LeFevre, 548 F.2d 1102, 1106 (2d Cir.
1977) (“[The trial judge’s] alleged threat of a more severe sentence should [the defendant] go to
trial[, i]f true, . . . would establish a per se violation of the defendant’s Sixth Amendment right to
a trial, and require resentencing before a different judge [for a defendant who went to trial].”).

29
 In sum, an appellate court faced with a record that raises serious issues as to the guilt of the

defendant and the means by which his conviction was procured, yet unable to grant relief, is not

obligated to become a silent accomplice to what may be an injustice.

CONCLUSION

The judgment of the district court is AFFIRMED.

30
REENA RAGGI, Circuit Judge, concurring in part:

I join only in so much of the court’s opinion as holds (1) that petitioner’s Brady claim is

untimely and (2) that this court need not decide whether to excuse such untimeliness on actual

innocence grounds because the Brady claim does not merit habeas corpus relief in any event. To

reach these conclusions, the court need not engage in a lengthy discussion of the facts and

circumstances that Friedman asserts led to his conviction, much less assume the truth of those facts

or the misconduct of police officers, prosecutors, defense counsel, and the presiding state court judge

before a hearing. Accordingly, I do not join in the remainder of the opinion. While the facts alleged

are disturbing and may well warrant further inquiry by a responsible prosecutor’s office, I cannot

predict whether the outcome of any such inquiry will be favorable to petitioner, whose conviction

is based on a plea of guilty that he thereafter publicly confirmed.

31