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BARSHAI ALLAH v. LEFEVRE

December 9, 1985

BARSHAI ALLAH, a/k/a ALLAH BARSHAI, Petitioner,
v.
EUGENE LeFEVRE, Superintendent of Clinton Correctional Facility, Respondent



The opinion of the court was delivered by: LASKER

LASKER, D.J.

Petitioner Barshai Allah seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) on the ground that his conviction was obtained in violation of his Sixth Amendment right to effective assistance of counsel. Four years ago this court dismissed a nearly identical petition by Allah for failure to exhaust state remedies. Allah v. Henderson, 526 F. Supp. 282 (S.D.N.Y. 1981), aff'd mem., 697 F.2d 287 (2d Cir. 1982). We conclude that an evidentiary hearing is necessary and appropriate under the circumstances in order to develop the factual record.

I.

 As stated in the earlier decision:

 
Allah was convicted of robbery, assault, and criminal possession of a weapon on September 7, 1977, following a trial by jury in the Supreme Court of New York County. The conviction was affirmed by the Appellate Division, First Department, sub nom. People v. Barshai, 72 A.D.2d 503, 420 N.Y.S.2d 526 (1979). Leave to appeal to the New York Court of Appeals was denied by certificate dated November 26, 1979.
 
Allah and his co-defendant, Wise Gillette ("Gillette") were arrested together approximately an hour after the robbery in question. According to the police officers' testimony, at the time of the arrest Allah and Gillette were in possession of property which was later determined to be the proceeds of the robbery. Prior to trial, Gillette, who was represented by separate counsel, moved to suppress the property found in his possession. A hearing was held on Gillette's suppression motion at which one of the arresting officers stated that Gillette and Allah were stopped "because they looked like two suspicious black males in a predominantly white neighborhood." Gillette's motion was granted on the grounds that, at the time of the stop, the police officers did not have "a founded suspicion or reasonable belief that the defendant was armed or otherwise engaged in any criminal activity." The indictment against Gillette was ultimately dismissed. Allah's attorney did not join in Gillette's motion to suppress, nor did he make a separate suppression motion after Gillette's motion was granted.
 
At Allah's trial, the only witnesses were the arresting officers, a witness to the arrest, and the victim. The victim was unable to identify Allah (see Trial Transcript at 55, Colloquy, Assistant District Attorney Kosloff: "Well, Judge, obviously this witness cannot make an identification.") There were no witnesses to the incident other than the victim. Thus, the only evidence presented at trial which linked Allah to the robbery was the stolen property.

 Allah v. Henderson, 526 F. Supp. at 283.

 In the present petition, as in the previous one, Allah contends that his constitutional right to effective assistance of counsel was violated by the failure of his attorney to move to suppress the physical evidence that Allah argues was the fruit of an illegal stop. Allah maintains that since his co-defendant's suppression motion was granted based on facts similar to those surrounding his own arrest, had his own attorney made a suppression motion it would likely have been successful. Allah also urges that but for his attorney's omission he would not have been convicted because a successful suppression motion would have removed from the case the only evidence linking him to the crime.

 The prior habeas petition was dismissed because:

 
[O]n th[e] record [before the court] it [was] simply not possible to divine what strategy impelled counsel to refrain from making the suppression motion in question. In the absence of any clue as to counsel's motivation, the question of the adequacy of Allah's counsel [could not] be properly resolved.

 Allah v. Henderson, 526 F. Supp. at 284. Because the exhaustion requirements contained in 28 U.S.C. § 2254 had not been met, that is, because the additional, necessary facts had not been presented to the state courts, the petition was dismissed. Id. at 284-85.

 Following dismissal of his habeas petition, Allah returned to the state courts and raised his ineffective assistance claim in a motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law 440.10(1)(h) (McKinney 1983). Included in the moving papers was an affirmation by Allah's present counsel stating that he had learned by telephone from petitioner's former trial attorney that although the latter had been aware of the co-defendant's successful suppression motion, he believed Allah lacked standing to move to suppress. Petitioner's Memorandum of Law at 11-12. Without holding an evidentiary hearing, Justice Rothwax of the New York Supreme Court denied the motion in an oral opinion on April 11, 1983.

 On appeal, the Appellate Division unanimously affirmed the lower court's decision. People v. Barshai, 100 A.D.2d 253, 474 N.Y.S.2d 288 (1st Dept. 1984). In his opinion for the court, Judge Sandler concluded that "in the then existing state of the law, defense counsel had a solid basis for the judgment that defendant lacked standing to move to suppress items of property which he denied owning or possessing," id. at 256, 474 N.Y.S.2d at 290, and that the trial attorney "could reasonably have believed that a motion to suppress, even if the standing obstacle was overcome, had little chance of success," id. at 261, 474 N.Y.S.2d at 293. Notwithstanding the decision to reject Allah's ineffective assistance claim, Judge Sandler recognized "that the central importance of the items of evidence in question to the outcome of defendant's trial was such that any reasonable doubt counsel entertained as to the viability of a motion to suppress should have been resolved in favor of making the motion." Id. at 256, 474 N.Y.S.2d at 289-90. Moreover, Judge Sandler acknowledged as "troublesome" and "disquieting" the fact that Allah's co-defendant did not confront standing obstacles in making his motion to suppress. Id. at 261, 474 N.Y.S.2d at 292. Presiding Judge Murphy and Judge Carro concurred in a brief opinion by Presiding Judge Murphy. Id. at 262, 474 N.Y.S.2d at 293.

 Leave to appeal to the New York Court of Appeals was denied. 62 N.Y.2d 804, 477 N.Y.S.2d 1028 (1984). The Supreme Court denied a petition for certiorari on October 9, 1984. 469 ...


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