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March 29, 1983

JAMES GUYTON, Petitioner,
EUGENE LeFEVRE, Superintendent, Clinton Correctional Facility, Respondent

The opinion of the court was delivered by: STEWART


 STEWART, District Judge:

 Before us is a pro se1 habeas corpus petition brought pursuant to 28 U.S.C. § 2254 (1976). The petitioner is currently serving a sentence of twenty-five years to life following his conviction for felony murder, robbery, and attempted robbery in January 1975. The petitioner argues that he was convicted in contravention of the due process clause of the fourteenth amendment, and sets forth five "points" in support of this claim. Points one and two assert that a witness' in-court identification of the petitioner was rendered unreliable by a previous and impermissibly suggestive pre-indictment photo identification by the same witness. Point three avers that the jury charge at petitioner's trial improperly shifted the burden of proof to the petitioner. Point four contends that a statutory presumption rule improperly shifted the burden of proof to the petitioner. Point five asserts that a deal between a prosecution witness and the prosecution was not disclosed to the petitioner at his trial.

 Since the time of his conviction, petitioner has sought to overturn his conviction via three separate motions to vacate (motions coram nobis), a direct appeal, and one previous federal habeas corpus petition. The latter was dismissed for failure to exhaust state remedies and need not concern us further. However, the procedural history behind petitioner's other attacks on his conviction is relevant to our analysis on this petition and so is briefly recounted.

 The Procedural History

 Petitioner's first motion to vacate was made in November 1975, pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1971). In support of his motion, petitioner argued that a suggestive pre-indictment photo identification tainted the identifying witness' subsequent in-court identification of the petitioner. The trial court denied the motion but issued no opinion to indicate whether it had considered the merits of petitioner's claim or denied the motion because the allegations concerned matters which were in the record and, therefore, could be raised on appeal, a separate procedural ground requiring denial of a motion to vacate under section 440.10(2)(b). Because these same identification claims had been decided in a pre-trial Wade2 hearing, the issues presented in the motion to vacate were indeed "in the record," and the prosecutor argued for denial solely on this procedural ground. In a subsequent motion for rehearing, petitioner contended that the procedural bar to a review on the merits should not be invoked where the prosecutor has not attempted to refute the movant's allegations. This motion was also denied.

 A year later, petitioner moved for a second time and pursuant to the same statute to vacate his judgment of conviction. He again asserted the unreliability of the photo and therefore the in-court identification, but the nature of his argument was somewhat different. This second motion to vacate was denied, apparently by endorsement and without opinion. There is no indication as to what if anything the prosecutor argued in opposition to this motion.

 Apparently, even prior to the time he first moved to vacate, the petitioner initiated a direct appeal of his conviction. On appeal the petitioner had the benefit of counsel -- his motions to vacate, including a third one not yet discussed, were all pro se. The claims raised on appeal had nothing to do with the allegedly unreliable identification of the petitioner by the testifying witness, and are also completely distinct from all other claims raised in this petition. The conviction was affirmed without opinion by the Appellate Division and leave to appeal to the New York Court of Appeals was subsequently denied.

 In July of 1981, petitioner asked the state trial court to vacate his judgment of conviction for a third time, this time alleging precisely the same five "points" presented in this petition. The motion was again denied and this time the trial court issued a brief opinion setting forth its reasons. That opinion reads in its entirety:

The defendant has moved pursuant to CPL § 440.10(1)(h) to vacate the judgment against him on the ground that it was obtained in violation of his rights under the constitution of the United States. Specifically, Guyton challenges the constitutionality of the in-court identification of him made by Anna Barrows, the victim's widow. An extensive " Wade " hearing was held prior to trial; and the defendant failed to raise the " Wade " issues on appeal. Thus, this court must deny the motion pursuant to CPL 440.10(2)(c) since no justification for the failure to raise that issue has been demonstrated.
The defendant's other points are without merit.
The motion is denied.

 Subsequently, petitioner sought and was denied leave to appeal this decision to the Appellate Division. This petition followed.

 Exhaustion of State Remedies and Procedural Bypass

 Before a federal court may consider a habeas corpus petitioner's claims, it must make certain that (1) every one of his claims has been fairly presented to the highest state court possible, Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982); Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 190 n. 3 (2d Cir. 1982) (en banc), and (2) the petitioner was not barred in state court from having his claims considered on the merits due to his disregard for or "bypass" of state procedural requirements. Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); Gulliver v. Dalsheim, 687 F.2d 655, 658 (2d Cir. 1982). With regard to the procedural bypass rule, if a state court reaches the merits of a claim even though it could have found the claim defaulted for procedural reasons, a federal habeas court is not barred from passing on the merits of that claim. See, e.g., Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981), cert. denied, 455 U.S. 951, 71 L. Ed. 2d 666, 102 S. Ct. 1455 (1982); Kelly v. Smith, 425 F. Supp. 184, 185 (E.D.N.Y. 1977). *fn3"

 On this petition, respondent concedes petitioner has exhausted his state remedies but argues that his claims are barred from our review under the procedural bypass doctrine. We conclude that some of petitioner's claims are procedurally barred and that some are not. We agree that the claims which are not procedurally barred have been adequately exhausted.

 On petitioner's first motion to vacate, petitioner asserted claims substantially the same (with one exception discussed below) as those presented under the headings "Point One" and "Point Two" here. As noted, the trial court issued no opinion to indicate whether it denied the motion on the merits or for procedural reasons. However, where the prosecutor has argued procedural grounds for denial, as here, a federal habeas court should presume that the state court based its rejection of the claim on those adequate and independent state procedural grounds. The federal court should, therefore, abstain from habeas review. Martinez v. Harris, 675 F.2d 51, 54-55 (2d Cir.), cert. denied, 459 U.S. 849, 103 S. Ct. 109, 74 L. Ed. 2d 97 (1982). See Johnson v. Harris, 682 F.2d 49, 51 (2d Cir. 1982). Accordingly, we conclude that unless the state courts have reached the merits of the issues raised in points one and two in some other proceeding, we are procedurally barred from considering them absent a showing of cause and prejudice by the petitioner. See Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).

 Petitioner did raise identification claims in his second motion to vacate, and with this motion, unlike the first, there is no evidence to show what the prosecutor argued. Respondent contends that it does not matter what the prosecutor argued or, more to the point, whether the trial court reached the merits of petitioner's claims in denying the motion, since the issues raised in petitioner's second motion to vacate are different from those raised here. We disagree. While the thread of petitioner's argument on his motion to vacate is slightly different from that here, both arguments go to the ultimate question of whether the witness' in-court identification of petitioner was sufficiently reliable. In addition, petitioner's brief in support of the second motion to vacate is framed as though it were asking for reconsideration of the first motion to vacate. The second argument assumes familiarity with the first. Insofar as both motions were made to the same trial judge who also conducted the Wade hearing on the same underlying issues, we conclude that the issues raised in the second motion should be considered the same as those raised in the first. Since we have up to now held these issues to be procedurally barred by the denial of the first motion to vacate, it is indeed important to know whether the trial court reached their merits on the second motion to vacate, thus removing the procedural bar.

 We see two possible interpretations as to what the trial court intended when it denied petitioner's second motion to vacate. Neither is helpful to petitioner. First, we might conclude that the trial court reached the merits of petitioner's claim. This conclusion is supported by dictum in Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 103 S. Ct. 109, 74 L. Ed. 2d 97 (1982). As previously noted, the Martinez court held that where the prosecutor has argued the procedural ground for denial before the state court, this is adequate to create a presumption that the state court based its adverse ruling on that procedural ground. However, the Martinez court also stated that "if ...

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