The opinion of the court was delivered by: SOFAER
MEMORANDUM OPINION AND ORDER
Jose Laureano has advanced seven claims in support of his petition for habeas corpus relief. Although several of these claims are meritless, one is substantial and would normally warrant thorough consideration. But because petitioner has failed to exhaust his available state remedies, the petition must be dismissed without prejudice.
I. The State Court Proceedings
Between December 1973 and March 1975, thirty-nine combined rape-sodomy-robbery-burglaries were committed in one South Bronx neighborhood. The crimes shared a common modus operandi. The perpetrator, armed with a knife or gun, would enter the victim's apartment through a bedroom window and would shout a Spanish vulgarity ("punyetta"). He would force the victim to engage in fellatio and sexual intercourse, then would rob her and burglarize the apartment. The perpetrator usually obscured his face with a handkerchief, although he occasionally pulled a turtleneck shirt over his face.
The two crimes involved in this petition (hereinafter referred to as the Cartagena and Rivera crimes) occurred on July 18 and August 6, 1974. Both followed the common pattern. Petitioner was identified by the two victims as the perpetrator and was arrested on October 18, 1974. While petitioner was in jail, fourteen more rapes occurred in the area, all following the same common pattern. The series of rapes ended on March 16, 1975, with the arrest of Jose Caraballo. Caraballo was charged with twelve separate incidents of rape, sodomy, robbery, and burglary. Pursuant to a guilty plea to one rape charge, Caraballo was sentenced to between twelve and one-half and twenty-five years of imprisonment.
A hearing pursuant to United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) was held, and the prosecution's identification evidence was found admissible. Petitioner was then tried for the Cartagena and Rivera crimes. The prosecution's case rested on the identification of petitioner by the two victims.
After the government's case, petitioner's counsel requested permission to call as witnesses Jose Caraballo and various members of the Bronx Sex Crimes Unit. Petitioner made an extensive offer of proof. He contended that the police officers would testify that Caraballo had been arrested as the pattern rapist in the South Bronx neighborhood, that Caraballo's modus operandi and physical appearance were extremely similar to those of the perpetrator of the Cartagena and Rivera crimes, and that in their opinion Laureano had not committed those crimes. Petitioner sought to call Caraballo to prove that he was the perpetrator and to permit the jury to compare Caraballo's appearance with Laureano's.
The trial judge refused to permit petitioner to call these witnesses. The court stated that it would not put Caraballo on the stand merely to have him exercise his Fifth Amendment rights. The Court ruled:
Because of the anticipated evidence proffered by defendant, would be highly suggestive, unduly suggestive, unduly inflammatory and because it would lead to speculation on the trial jurors ... all of this anticipated evidence shall be excluded and that none of these witnesses may be called to the stand when we resume here in front of the jury.
Petitioner called one witness, a former roommate, who testified that petitioner had been at home when the crimes occurred.
On November 7, 1975, the jury convicted petitioner of rape, sodomy, two counts of burglary, robbery, attempted robbery, and menacing. The court sentenced him on January 7, 1976 to two consecutive terms of imprisonment of between eight and one-third and twenty-five years.
Petitioner filed a direct appeal. He contended that five reversible errors had occurred: the court should have granted his motion to sever the two crimes; the eyewitness testimony of the victim Cartagena should have been suppressed; the court should have permitted him to call Caraballo and the police officers as witnesses; the court should not have stated during the charge to the jury that the prosecution's evidence was uncontroverted; and the court should have instructed the jury differently as to his alibi testimony. The Appellate Division (First Department) affirmed petitioner's conviction without opinion. People v. Laureano, 54 A.D.2d 836, 387 N.Y.S.2d 1012 (1st Dep't 1976). Leave to appeal to the New York Court of Appeals was denied.
On May 30, 1977, petitioner moved in the trial court to set aside his conviction pursuant to New York Criminal Procedure Law § 440.10, contending that comments made by the presiding judge at the Wade hearing had denied him a fair trial. The court denied that motion on June 23, ruling that the issue should have been raised on direct appeal. Petitioner did not seek leave to appeal that ruling.
On June 6, 1978, Jose Caraballo confessed to the Cartagena and Rivera crimes. Caraballo wrote the confessions one month after arriving at Green Haven Correctional Facility, where petitioner was also incarcerated. Upon receipt of the confession, the Bronx District Attorney's Office reopened the case to determine whether Caraballo's confession was credible enough to cast doubt upon Laureano's guilt. An Assistant District Attorney interviewed Caraballo on July 12 and 13, 1978. Caraballo was represented by court-appointed counsel at the ...