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July 12, 1990


The opinion of the court was delivered by: Glasser, District Judge:


This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the court grants the petition in its entirety.


Petitioner was convicted following a jury trial of murder in the second degree, attempted robbery in the first degree, and criminal use of a firearm in the second degree. On May 21, 1982, petitioner was sentenced to concurrent indeterminate terms of imprisonment from twenty-five years to life for his conviction of felony murder, and from seven and one-half to fifteen years for each of his attempted robbery and criminal use of a firearm convictions.

Petitioner appealed the judgment to the Supreme Court of the State of New York, Appellate Division, Second Department which unanimously affirmed the judgment. People v. Fernandez, 121 A.D.2d 562, 503 N.Y.S.2d 612 (2d Dept. 1986). Relying on People v. Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14, 485 N.E.2d 221 (1985), later reversed and remanded by the Supreme Court, the Appellate Division stated that the "defendant's contention that the refusal of the trial court to grant his motion for severance resulted in the denial of his right to confrontation and a fair trial, pursuant to the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), is without merit, since the codefendant's statement interlocked with the defendant's confession, and the jury was given appropriate limiting instructions."

Petitioner, appealed to the Court of Appeals asserting that the admission of the nontestifying codefendant's confession constituted reversible error. Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1986). However, the Court of Appeals affirmed the judgment of the trial court on the grounds that petitioner's claim "was not preserved for our review", barred under the contemporaneous objection rule of CPL § 470.05[2]. People v. Fernandez, 72 N.Y.2d 827, 530 N.Y.S.2d 547, 526 N.E.2d 38 (1988).


Petitioner claims that the admission into evidence of the statement of his nontestifying codefendant was a violation of his Sixth Amendment right of confrontation and a fair trial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).


On November 19, 1980, Rosa Acosta went to visit a friend, Omar Martinez, who had been in a car accident. At approximately 12:30 a.m., on November 20, 1980, Luis Martinez, Omar's cousin, offered to drive Acosta and her friends home. After dropping off the friends, Martinez drove Acosta to her house on 99th Street in Corona, Queens. As they were saying goodnight, two men, one of whom was carrying a gun, approached the car. According to Acosta, both men repeatedly demanded in English and Spanish, "Ten dollars or your life."

Acosta responded that they had no money. However, she believed she recognized the men from the neighborhood, and offered her watch to them. The man with the gun began to take the watch but suddenly slammed her hand down, stepped back, and fired two or three shots into the car. Martinez was taken to the hospital where he died on the operating table.

On April 7, 1981, Detective Howard Nordstrum arrested petitioner Bienbenito Fernandez in connection with the November 19, 1980 shooting death of Luis Martinez.

With Detective Ray Diaz acting as interpreter, Nordstrum informed petitioner that he had been identified as a suspect in Martinez's death, and advised him of his constitutional rights. Petitioner responded that he understood his rights and was willing to answer questions. Petitioner confessed that he had shot the deceased in order to buy liquor, and that he had consumed a bottle and a half of liquor and had smoked a bag of marijuana on the day of the homicide. Petitioner confessed that he had used a .45 caliber handgun. He stated that a second man had been with him the night of the shooting but petitioner would not provide police with his name, claiming that this individual was not involved.

One month after petitioner's arrest, codefendant Expedito Valerio was arrested, and made a statement to Detective Nordstrum with Detective Roy Pena acting as interpreter. Valerio was advised of his constitutional rights and, after indicating that he understood them, made a statement to police regarding the night of the homicide. Valerio stated that, at approximately midnight on November 19, 1980, he and petitioner were walking along 99th Street in Corona, Queens. He said that he saw petitioner approach a car, demand ten dollars, point a gun in the car and fire two shots. Valerio maintained that this was the last time that he saw petitioner. A tape recording was made of Valerio's statement and played for the jury at trial.

In addition, at a sidebar conference during the trial, Detective Nordstrum testified that the defendant told him "Let this female come forward and I will have to say this female sent me to do it. I do not know her name, but she will get locked up with me." This evidence was to be introduced by the codefendant in support of his theory that the homicide was motivated by revenge.

On April 12, 1982, the eve of trial, the court granted the State's motion to consolidate the cases of petitioner and his codefendant.*fn1 Defense counsel made no objection to this motion.

Immediately following opening statements, defense counsel for petitioner and codefendant, claiming an irreconcilable difference in their approaches to the defense, moved for severance. The trial court, failing to perceive any undue prejudice in the consolidation, denied the motion.

A second motion to sever was made during codefendant's cross-examination of Detective Nordstrum on the grounds that petitioner's and codefendant's defenses were antagonistic. The codefendant sought to prove that the motive for the murder was revenge, whereas the petitioner sought to prove that the murder was motivated by robbery. The court denied this motion holding that the codefendant had a right to present his defense and that the presentation of his defense was no reason to grant a severance at that time.

A third motion to sever was made after conclusion of the closing arguments. That motion was based on the antagonistic nature of the defenses and the fear that the jury would improperly consider the codefendant's confession against the petitioner despite the trial court's limiting instructions. The trial court denied this motion claiming that it had taken all necessary steps to protect the interests of the petitioner and codefendant by its limiting instructions to the jury.


I. Procedural Bar

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . ." U.S. Const. amend. VI. The right to compulsory process was applied to the states, through the due process clause of the Fourteenth Amendment. See Washington v. Texas, 388 U.S. 14, 18-19, 87 S.Ct. 1920, 1922-23, 18 L.Ed.2d 1019 (1967).

Where defendants are tried jointly, a confession of a codefendant implicating a defendant may not be introduced at trial unless the defendant is permitted to cross-examine the confessing codefendant. Cruz v. New York, 481 U.S. 186, 189-90, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162 (1986). Petitioner claims that the Confrontation Clause bars the admission at his joint trial of the incriminating statement of his nontestifying codefendant, even if the jury is instructed not to consider that statement against him, and even if his own confession is admitted against him. Id. at 189-90, 107 S.Ct. at 1717.

Before addressing the merits of petitioner's claim, this court must determine whether this petition for a writ of habeas corpus is properly before this court. The State argues that Fernandez, by not objecting before trial to consolidation of the cases or to the introduction of the nontestifying codefendant's statement, forfeited any claim based on the admission of this statement as a matter of New York criminal procedure law. It is the State's position that under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), Fernandez may not be permitted to present this claim as a ground for federal habeas corpus relief.

In Wainwright v. Sykes, supra, the Court discussed the availability of federal habeas corpus to review a petitioner's constitutional claim, where the state courts have previously refused to consider the claim on the merits because of noncompliance with a state contemporaneous-objection rule. Id. at 74, 97 S.Ct. at 2499. In that case, the Supreme Court set forth the "cause and prejudice" test, which bars federal habeas corpus relief under these circumstances "absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation." Id. at 84, 97 S.Ct. at 2505.

The Court stated that principles of federalism and respect for state determinations as well as the need for finality in criminal litigation counsel for adherence to state procedural rules.

    We believe the adoption of the Francis rule in
  this situation will have the salutary effect of
  making the state trial on the merits the "main
  event," so to speak, rather than a "tryout on the
  road" for what will later be the determinative
  federal habeas hearing. There is nothing in the
  Constitution or in the language of § 2254 which
  requires that the state trial on the issue of guilt
  or innocence be devoted largely to the testimony of
  fact witnesses directed to the elements of the
  state crime, while only later will there occur in a
  federal habeas hearing a full airing of the federal
  constitutional claims which were not raised in the
  state proceedings.

Id. at 90, 97 S.Ct. at 2508.

Thus, pursuant to Wainwright v. Sykes, this court must make two distinct determinations with respect to the argument that petitioner's federal constitutional claim is barred from consideration because of his forfeiture of that claim as a matter of state law. First, this court must determine whether the relevant New York state criminal procedural law was validly applied to bar petitioner's habeas corpus petition. Second, assuming that the state court held that the petitioner was precluded, by virtue of a procedural default, from presenting his federal constitutional claim in state court, this ...

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