The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner, proceeding pro se, seeks a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. For the reasons discussed below, the petition is
Petitioner, charged with two counts of burglary in the third degree and
one count of burglary in the second degree, was convicted on all three
charges following a jury trial in the County Court of Nassau. On March
9, 1983, the sentencing court classified petitioner as a second felony
offender, and sentenced him to concurrent terms of three-and-one-half to
seven years imprisonment on the third degree burglary counts and
seven-and-one-half to fifteen years imprisonment on the second degree
Petitioner later pled guilty under a separate indictment to attempted
burglary in the second degree and on May 31, 1983, was sentenced to serve
a two to four year term of imprisonment, running concurrently with the
sentences imposed earlier.
On direct appeal of both the conviction and his plea, petitioner
challenged (1) the lawfulness of his arrest; (2) the trial court's ruling
that if petitioner testified, evidence of certain prior crimes would be
admissible to impeach his testimony; (3) the sufficiency of evidence
adduced at trial; and (4) ineffective assistance of counsel. The
Appellate Division unanimously affirmed both the jury's verdict and the
guilty plea. Petitioner did not seek leave to appeal to the New York
Court of Appeals.
On April 26, 1988, petitioner filed a writ of error coram nobis in the
Appellate Division, alleging ineffective assistance of appellate
counsel. The Second Department denied the writ and on August 18, 1988,
the New York Court of Appeals dismissed the subsequent appeal on that
Petitioner never sought timely leave to appeal to the New York
Court of Appeals. The state previously argued that petitioner's
failure to seek leave to the New York Court of Appeals, for
whatever reason, constituted a failure to exhaust state remedies,
thereby warranting dismissal of petitioner's claim for federal
habeas corpus relief. In an Order dated June 30, 1989, this Court
pointed out that under Fay v.
Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963),
petitioner's procedural default would not preclude the Court from
reaching the merits of his claim unless the petitioner had
"deliberately by-passed the orderly procedure of the state
courts," id. at 438, 83 S.Ct. at 849, by a personal waiver of the
claim amounting to "`an intentional relinquishment or abandonment
of a known right or privilege.'" Id. at 439, 83 S.Ct. at 849
(quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,
1023, 82 L.Ed. 1461 (1938)).
At that juncture, the Court deemed itself ill-equipped to determine
whether the Noia standard had been met, and directed respondents to
submit additional papers on the issue. After a careful review of all
submitted memoranda, the Court is now convinced that there was no
deliberate bypass of orderly state court procedure. Consequently, Noia in
no way precludes this Court from addressing the merits of petitioner's
A review of the record, however, discloses that petitioner has not
fully exhausted his ineffective assistance of counsel claim in the state
courts. Despite petitioner's request during trial, defense counsel failed
to produce a fingerprint expert to refute expert evidence submitted by
the prosecution. Apparently, testimony by the state's expert provided the
linchpin for conviction. The Appellate Division never had a fair
opportunity to address this critical facet of the ineffective assistance
of counsel claim solely by reviewing the trial record.
Clearly, "it would be better and in some cases essential, that an
appellate attack on the effectiveness of counsel be bottomed on an
evidentiary exploration by collateral or post-conviction proceeding
brought under CPL 440.10." People v. Brown, 45 N.Y.2d 852,
410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978). It does not matter that the
ineffective assistance of counsel issue had been raised, though in a
seemingly cursory fashion, on direct appeal because "`the mere
presentation' of the ineffective assistance of counsel issue on direct
appeal `[does] not create a fair opportunity for decision, and
consequently [does] not authorize petitioner to proceed to federal court
without seeking a state post-conviction remedy.'" United States ex rel.
La Salle v. Smith, 632 F. Supp. 602, 606 (E.D.N.Y. 1986) (Korman, J.)
(citing Kellotat v. Cupp, 719 F.2d 1027, 1031 (9th Cir. 1983)).
Petitioner, by failing to seek an evidentiary hearing, made it impossible
for the New York Appellate Division to resolve this claim because his
argument was dependent on facts outside the record. Id. at 607. See
Walker v. Dalsheim, 669 F. Supp. 68 (S.D.N.Y. 1987).
Because petitioner may still move pursuant to N.Y.Civ.Prac.L. &
R. 440.10, he has failed to ...