United States District Court, Eastern District of New York
July 12, 1990
BIENBENITO FERNANDEZ, PETITIONER,
ARTHUR A. LEONARDO, RESPONDENT.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
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
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. People v. Fernandez, 72 N.Y.2d 827, 530 N.Y.S.2d
547, 526 N.E.2d 38 (1988).
GROUND FOR RELIEF
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
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
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
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 court
must consider whether there was adequate cause for the
petitioner's default and sufficient prejudice to satisfy the
Wainwright v. Sykes standard.
In this case, we hold that a procedural default has occurred
as a matter of New York law, thus triggering the "cause and
prejudice" analysis pursuant to Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594.
A. New York State Criminal Procedural Law
Petitioner contends that the trial court erred in admitting
into evidence at their joint trial his nontestifying
codefendant's inculpatory statement. This court must determine
whether that issue has been validly preserved for review, or
rather, barred as untimely under New York state procedural law.
A question of law is preserved for appeal in New York only
when the party claiming error protests at the time of the
ruling or at a later time when the court is able to change the
ruling. N.Y.Crim.Proc.Law § 470.05(2) provides in pertinent
For purposes of appeal, a question of law with
respect to a ruling or instruction of a criminal
court during a trial or proceeding is presented
when a protest thereto was registered, by the
party claiming error, at the time of such ruling
or at any subsequent time when the court had an
opportunity of effectively changing the same.
The admission of codefendant Valerio's taped statement was
admitted into evidence during the direct examination of
Detective Pena, the translator during the questioning of
Valerio, as follows:
MR. KIRSCH: At this time, Your Honor, I would
offer this tape as People's 6 for identification.
THE COURT: All right.
QUESTION [District Attorney Kirsch]: Detective,
have you ever listened to this tape?
ANSWER [Detective Pena:]: Yes, sir, I have.
Q: And is this tape a true and accurate account of
what occurred in that conversation between
yourself, Detective Nordstrom, the ADA, and
defendant Valerio at the time in question?
A: To the best of my recollection, yes. MR.
KIRSCH: At this time, Your Honor, I would offer
this tape-recording into evidence.
MR. SIMON [counsel for codefendant Valerio]: No
THE COURT: Let it be received as People's 6 in
Trial Transcript ("Tr.") at 118-19.
At a sidebar, the attorneys and judge discussed the playback
of the tape. Petitioner's counsel failed to object to the
playback of the taped statement for the jury and, when the
judge appeared dubious as to the quality of the tape recorder,
said, "Why don't we try and see if there's a problem." (Tr. at
Based on the above, this court holds that petitioner failed
to object to the admission of the taped statement at the time
of the ruling. Moreover, as the tape was immediately thereafter
played for the jury, there was no "subsequent time when the
court had an opportunity of effectively changing the same."
Petitioner, thus, committed a procedural default at trial by
failing to make a contemporaneous objection to the trial
judge's admission into evidence of the nontestifying
codefendant's statement.*fn2 See N.Y.Crim.Proc.Law §
In addition, petitioner contends that the trial court's
failure to grant his motions to sever the joint trial of
petitioner and his codefendant deprived him of his Fourteenth
Amendment right to a fair trial. New York criminal procedure
law provides that all pre-trial motions be served or filed
within forty-five days after arraignment and before
commencement of trial. N.Y.Crim.Proc.Law § 255.20(1). It is
uncontested that petitioner failed to make a motion to sever
before commencement of the joint trial. Petitioner's failure to
make a timely motion to sever contravened New York state law.
Thus, we hold that the New York state courts properly invoked
the state procedural rule of contemporaneous objection to
preclude review of Fernandez's federal constitutional
challenge. Accordingly, Fernandez has, for the purposes of
federal habeas corpus review, waived that claim unless it fits
under the "cause-and-prejudice" exception. To determine whether
this court is permitted to review the constitutional
sufficiency of petitioner's claim, we therefore proceed to a
cause and prejudice analysis.
B. Cause-and-Prejudice Test
In Wainwright v. Sykes, the Court held that a federal habeas
petitioner who has failed to comply with a state's
contemporaneous-objection rule at trial must show cause for the
procedural default and prejudice attributable to it in order to
obtain review of the defaulted constitutional claim. 433 U.S.
at 87, 97 S.Ct. at 2506. See also Reed v. Ross, 468 U.S. 1, 11,
104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1983) ("[w]hen a procedural
default bars litigation of a constitutional claim in state
court, a state prisoner may not obtain federal habeas corpus
relief absent a showing of "cause and actual prejudice"); Engle
Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783
(1981) ("We reaffirm, therefore, that any prisoner bringing a
constitutional claim to the federal courthouse after a state
procedural default must demonstrate cause and actual prejudice
before obtaining relief"); United States v. Frady, —
456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1981); Francis
v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149
(1976); Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36
L.Ed.2d 216 (1973); Murray v. Carrier, 477 U.S. 478, 496-97,
106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1985) ("The cause and
prejudice test . . . is, we think, a sound and workable means
of channeling the discretion of federal habeas courts.").
The Supreme Court clearly stated that default of a
constitutional claim pursuant to a trial strategy or tactical
decision does not constitute cause. See Reed v. Ross,
468 U.S. 1, 13, 104 S.Ct. 2901, 2908-09, 82 L.Ed.2d 1 (1984)*fn3; Smith
v. Murray, 477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d
434 (1985) ("Our cases, however, leave no doubt that a
deliberate, tactical decision not to pursue a particular claim
is the very antithesis of the kind of circumstance that would
warrant excusing a defendant's failure to adhere to a State's
legitimate rules for the fair and orderly disposition of
criminal cases."). However, the Supreme Court left open "for
resolution in future decisions the precise definition of the
`cause-and-prejudice' standard." Wainwright v. Sykes, supra,
433 U.S. at 87, 97 S.Ct. at 2507.
In Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639,
2645, 91 L.Ed.2d 397 (1985), the Court held that the existence
of cause for a procedural default "must ordinarily turn on
whether the prisoner can show that some objective factor
external to the defense impeded counsel's efforts to comply
with the State's procedural rule." Without attempting to
construct an exhaustive listing of objective impediments, the
Court noted that "a showing that the factual or legal basis for
a claim was not reasonably available to counsel" is an example
of such an impediment to compliance with a procedural rule. The
We think, then, that the question of cause for a
procedural default does not turn on whether
counsel erred or on the kind of error counsel may
have made. So long as a defendant is represented
by counsel whose performance is not
constitutionally ineffective under the standard
established in Strickland v. Washington,
[466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] supra,
we discern no inequity in requiring him to bear the
risk of attorney error that results in a procedural
default. Instead, we think that the existence of
cause for a procedural default must ordinarily turn
on whether the prisoner can show that some
objective factor external to the defense impeded
counsel's efforts to comply with the State's
Id. at 488, 106 S.Ct. at 2645. See Reed v. Ross, 468 U.S. 1
18-20, 104 S.Ct. 2901, 2911-12, 82 L.Ed.2d 1 (1984) (sufficient
cause to excuse the procedural default of a claim that shifting
the burden of proof to the defendant on the issue of malice
violated due process. Claim was `novel' because `burden
shifting' was not held unconstitutional until several years
after the procedural default.); Dutton v. Brown, 812 F.2d 593
596 (10th Cir.) (en banc) (cause existed to excuse default when
counsel could not reasonably have known that prosecutor's
suggestion to jury that ultimate responsibility for death
sentence lay with appellate court was unconstitutional because
Supreme Court did not determine such action
unconstitutional until seven years after trial.) cert. denied,
484 U.S. 836
, 108 S.Ct. 116
, 98 L.Ed.2d 74 (1987).
Petitioner asserts that his failure to object to the
admission of codefendant's statement was caused by reliance on
an exception to the Bruton proscription for "interlocking"
confessions*fn4. In Bruton, 391 U.S. 123, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968), the Supreme Court held that a defendant is
deprived of his rights under the Confrontation Clause when his
codefendant's incriminating confession is introduced at their
joint trial, even if the jury is instructed to consider that
confession only against the codefendant. The Court stated:
"[T]here are some contexts in which the risk that
the jury will not, or cannot, follow instructions
is so great, and the consequences of failure so
vital to the defendant, that the practical and
human limitations of the jury system cannot be
ignored. Such a context is presented here, where
the powerfully incriminating extrajudicial
statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately
spread before the jury in a joint trial. Not only
are the incriminations devastating to the
defendant but their credibility is inevitably
suspect . . ."
391 U.S. at 135-36, 88 S.Ct. at 1627-28 (citations omitted).
However, in Bruton the codefendant had confessed that he and
the defendant had committed the armed robbery. The defendant
himself had made no such statement. In this case, unlike
Bruton, both the defendant and codefendant have confessed.
In Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d
713 (1979), the Court considered the question of whether Bruton
applied to a codefendant's confession, corroborating that of
the defendant, if introduced against him. In Parker, supra, a
plurality of four Justices found no violation of the right of
confrontation where the confessions of the defendant and the
codefendant were so similar as to "interlock". The Parker
plurality held that the interlocking nature of the two
confessions served to mitigate the effect of the codefendant's
confession. It interpreted Bruton to apply only in cases where
the admission of a codefendant's incriminating confession was
"devastating" to the defendant's case. If the codefendant's
incriminating statement did not differ in any substantial
aspect from that of the defendant's confession, the statement
was considered harmless and thus, admissible against the
The Court was not to revisit this issue until 1987, five
years after petitioner's trial. See Cruz v. New York,
481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). In Cruz, supra, the
Court reaffirmed the ruling in Bruton that "where two or more
defendants are tried jointly . . . the pretrial confession of
one of them that implicates the others is not admissible
against the others unless the confessing defendant waives his
Fifth Amendment rights so as to permit cross-examination." 481
U.S. at 190, 107 S.Ct. at 1717.
The Cruz Court rejected the Parker plurality's concept of
"interlocking" confessions as an exception to the Bruton rule.
It stated that the interlocking nature of the confessions
renders the defendant's confession more harmful. The Court
recognized that the introduction of the defendant's own
interlocking confession might, in some cases, render the
violation of the Confrontation Clause harmless, "but could not
cause introduction of the nontestifying codefendant's
confession not to constitute a violation." 481 U.S. at 191, 107
S.Ct. at 1718 citing Parker, supra, 442 U.S. at 77-80, 99 S.Ct.
at 1718. The Court stated:
In fact, it seems to us that "interlocking" bears
a positively inverse relationship to devastation.
A codefendant's confession will be relatively
harmless if the incriminating story it tells is
different from that which the defendant himself is
alleged to have told, but enormously damaging if
confirms, in all essential respects, the
defendant's alleged confession. It might be
otherwise if the defendant were standing by his
confession, in which case it could be said that the
codefendant's confession does no more than support
the defendant's very own case. But in the real
world of criminal litigation, the defendant is
seeking to avoid his confession — on the ground
that it was not accurately reported, or that it was
not really true when made.
Id. at 192, 107 S.Ct. at 1718.
The Court in United States v. Johnson, 457 U.S. 537, 102
S.Ct. 2579, 73 L.Ed.2d 202 (1982), identified three situations
in which a "new" constitutional rule, representing a `clear
break with the past' would constitute cause, excusing an
attorney's failure to raise an issue at a given time. The Court
outlined the following situations:
(1) A decision of the Court which explicitly overruled a
precedent of the Court;
(2) A decision which would overturn a longstanding and
widespread practice to which the Court had not spoken, but
which a near-unanimous body of lower court authority had
expressly approved; and
(3) A decision which disapproved of a practice that the Court
arguably had sanctioned in prior cases.
In Reed v. Ross 468 U.S. 1, 17, 104 S.Ct. 2901, 2910, 82
L.Ed.2d 1 (1983), the Court affirmed a decision holding that
Ross' claim was sufficiently novel in 1969 so as to excuse his
attorney's failure to raise the issue earlier and such a new
constitutional claim constituted cause within the meaning of
Wainwright v. Sykes. The Court stated that "whether an attorney
had a reasonable basis for pressing a claim challenging a
practice that this Court has arguably sanctioned depends on how
direct his Court's sanction of the prevailing practice had
been, how well entrenched the practice was in the relevant
jurisdiction at the time of defense counsel's failure to
challenge it, and how strong the available support is from
sources opposing the prevailing practice." Reed v. Ross, supra,
at 17, 104 S.Ct. at 2911.
In Cruz, the Court resolved the issue of the applicability of
Bruton to interlocking confessions which it had considered in
Parker. The Court disapproved of the Parker plurality's
determination and reversed and remanded the New York court's
decision. It was not until 1987, when the Supreme Court decided
Cruz, that it clarified its position with regard to the
admissibility of a nontestifying codefendant's statement when
there are interlocking confessions.
Consequently, we hold that the failure of petitioner's
attorney to have pressed an objection to the introduction of
codefendant's statement is sufficiently excusable to satisfy
the cause requirement under Wainwright v. Sykes.
The showing of prejudice required under Wainwright v. Sykes
is actual and substantial disadvantage. Engle v. Isaac,
456 U.S. 107, 135, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1981).
Petitioner has the burden to show "not merely that the errors
at . . . trial created a possibility of prejudice, but that
they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional
dimensions." United States v. Frady, 456 U.S. 152, 170, 102
S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1981).
In this case, there is evidence of actual and substantial
disadvantage. Petitioner's defense that he was misidentified
and his confession was coerced is undermined by the admission
of his codefendant's inculpatory statement. The reliability of
petitioner's alleged confession is confirmed by codefendant's
statement which corroborates the essential facts of the case
including the time and place of the crime as well as
petitioner's participation in the crime.
The actual prejudice suffered in this case is similar to that
involved in Cruz. Here, as in Cruz, the eyewitness testimony
was the only direct evidence that linked the defendant to the
Petitioner effectively raises doubts regarding the
credibility of the eyewitness testimony to suggest that the
State had less than overwhelming proof. Rosa Acosta
identified petitioner inconsistently before and at trial.
Immediately after the crime, Acosta described the gunman as
taller and 10 pounds lighter than his accomplice. But at the
trial, she changed her testimony and said that the accomplice
was the taller and thinner of the two. She initially reported
to have seen petitioner in the neighborhood 10-20 times, but at
trial changed her testimony to having seen petitioner
previously on 150 occasions. In addition, Acosta described the
gunman as having a crew cut, though it was later established
that she had not seen his hair at the time of the shooting.
It appears evident that the codefendant's statement was
introduced into evidence for the purpose of corroborating
Acosta's testimony. The codefendant's statement did not
inculpate him, instead it completely exonerated him at
The codefendant's statement worked to the actual and
substantial disadvantage of petitioner in that it undermined
his defense, corroborated the eyewitness testimony against him
and contributed to his conviction. The nontestifying
codefendant's statement was not harmless beyond a reasonable
doubt. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.
824, 828, 17 L.Ed.2d 705 (1966); Harrington v. California,
395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (harmlessness
stems from the fact that other evidence in case is so
inculpatory that even absent codefendant's confession,
defendant would clearly be convicted.); Delaware v. Van
Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986).
In this case, even assuming the damaging potential of the
improperly prohibited cross-examination was fully realized, the
error would not have been harmless beyond a reasonable doubt.
Furthermore, in this case, there is a risk of a fundamental
miscarriage of justice. A showing of pervasive, actual
prejudice constitutes a showing that the petitioner was denied
fundamental fairness at trial. See Murray v. Carrier,
477 U.S. 478, 494, 106 S.Ct. 2639, 2648, 91 L.Ed.2d 397 (1985). The
admission into evidence at their joint trial of the
nontestifying codefendant's confession, which exonerated the
codefendant and implicated the petitioner, was sufficient to
infect petitioner's entire trial with error of constitutional
II. The Retroactivity of Cruz
The retroactive application of new rulings*fn5 to
convictions which are challenged by a petition for a writ of
habeas corpus are generally disfavored. See Teague v. Lane,
489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In Teague,
supra, the Supreme Court held that a new rule of constitutional
law established after a petitioner's conviction has become
final may not be used to attack the conviction on federal
habeas corpus unless the rule (1) places an entire category of
primary conduct beyond the reach of criminal law, or prohibits
imposition of a certain type of punishment for a class of
defendants because of their status or offense, or (2) applies a
new watershed rule of criminal procedure that enhances accuracy
and is necessary to the fundamental fairness of the criminal
proceeding. See Sawyer v. Smith, ___ U.S. ___, 110 S.Ct. 2822,
111 L.Ed.2d 193 (1990) (new rule of constitutional law which
prohibits prosecutorial argument during penalty phase of
capital trial that diminishes jury's sense of responsibility
for sentencing decision as violation of Eighth Amendment is not
to be applied retroactively on federal habeas review because it
was not watershed rule of criminal procedure necessary to
fundamental fairness of criminal proceeding within meaning of
exception to Teague's doctrine of non-retroactivity.).
Here, petitioner's claim falls squarely within the second
Teague exception. In this case, unlike that it in Sawyer v.
Smith, supra, the rule at issue not only improves accuracy, but
also "alter[s] our understanding of the bedrock procedural
elements" essential to the fairness of a proceeding. Teague,
489 U.S. at 311, 109 S.Ct.
at 1076. The new ruling regarding the Confrontation Clause
articulated in Cruz satisfies not only the first, but the
second, half of the definition of the second Teague exception,
i.e., it goes to the issue of fundamental fairness. The Supreme
Court has stated that "[t]here are few subjects, perhaps, upon
which this Court and other courts have been more nearly
unanimous than in their expressions of belief that the right of
confrontation and cross-examination is an essential and
fundamental requirement for the kind of fair trial which is
this country's constitutional goal." Pointer v. Texas,
380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965). See also
Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20
L.Ed.2d 255 (1967); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct.
1074, 13 L.Ed.2d 934 (1965); Mattox v. United States,
156 U.S. 237, 242-43, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895). The
introduction of the nontestifying codefendant's statement
against the petitioner rendered his joint trial "fundamentally
unfair". Thus, the ruling in Cruz may be applied retroactively
in this habeas corpus proceeding as it comes within the second
In addition, the Court has applied new rulings to final
convictions where the rulings would have "a fundamental impact
on the integrity of factfinding." Allen v. Hardy, 478 U.S. 255,
259, 106 S.Ct. 2878, 2880, 92 L.Ed.2d 199 (1986); see also
Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18
L.Ed.2d 1199 (1967); Jackson v. Denno, 378 U.S. 368, 84 S.Ct.
1774, 12 L.Ed.2d 908 (1963); Gideon v. Wainwright,
372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Reck v. Pate,
367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1960); Linkletter v. Walker,
381 U.S. 618, 639, n. 20, 85 S.Ct. 1731, 1743, n. 20, 14
L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719,
727-728, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Brookhart v.
Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).
In Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921,
1922, 20 L.Ed.2d 1100 (1968), the Supreme Court held that
Bruton was to be applied retroactively to cases on collateral
review because the constitutional error at stake in Bruton
"presents a serious risk that the issue of guilt or innocence
may not have been reliably determined." Roberts, 392 U.S. at
295, 88 S.Ct. at 1922. The Court stated:
Despite the cautionary instruction, the admission
of a defendant's confession which implicates a
codefendant results is such a "serious flaw." The
retroactivity of the holding in Bruton is therefore
required; the error "went to the basis of fair
hearing and trial because the procedural apparatus
never assured the [petitioner] a fair
determination" of his guilt or innocence.
Linkletter v. Walker, 381 U.S. 618, 639 n. 20, 85
S.Ct. 1731, n. 20, 14 L.Ed.2d 601 (1965).
Id. at 294, 88 S.Ct. at 1922.
The Supreme Court has also applied Cruz retroactively. In
Sanders v. Lane, 481 U.S. 1026, 107 S.Ct. 1950, 95 L.Ed.2d 523
(1987), the Court vacated the judgment of the Seventh Circuit
which had affirmed the denial of a petition for a writ of
habeas corpus on the ground that the state trial court had
improperly admitted an incriminating statement of a codefendant
at petitioner's joint trial. The case was remanded to the
district court for further consideration in light of Cruz v.
In a recent case in this circuit, the district court applied
Cruz retroactively to a petitioner's collateral attack on his
conviction on the basis of a violation of his Sixth Amendment
right to confront witnesses against him. In Reddy v. Coombe,
730 F. Supp. 556 (S.D.N.Y. 1990), the court wrote:
Thus, whether Cruz is taken as doing "no more than
reaffirm [Bruton's] central proposition" and as
being "indistinguishable from Bruton with respect
to those factors that the Court has deemed relevant
in this area" as it states, Cruz, 481 U.S. at 193,
107 S.Ct. at 1719, or as applying the confrontation
clause in a way which goes to the basis of a fair
hearing and trial, Roberts, 392 U.S. at 294, 88
S.Ct. at 1922, it must apply retroactively.
Id. at 566.
III. Harmless Error Test
Since this court is compelled to apply Cruz retroactively to
this petition for a
writ of habeas corpus, it next must determine whether the
present violation of the Confrontation Clause constituted
"harmless error" under Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967). In applying the harmless
error rule, "the correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully realized
. . . [the constitutional restriction upon the scope of
cross-examination] was harmless beyond a reasonable doubt."
Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 483-84, 102
L.Ed.2d 513 (1988) (quoting Delaware v. Van Arsdall,
475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986)).
The sufficiency of the evidence is irrelevant to our
determination whether the admission of the nontestifying
codefendant's statement was harmless constitutional error.
See Anderson v. Smith, 751 F.2d 96, 105 (2d Cir. 1984). In
Anderson, supra, the Court stated:
The question is not whether there is legally
"sufficient evidence [of guilt] on which the
accused could have been convicted without the
evidence complained of." Indeed, even if a court
considers the evidence overwhelming, it should not
automatically assume that a constitutional error
is harmless. The test rather is simply whether
"there is a reasonable possibility that the
improperly admitted evidence contributed to the
conviction." (citations omitted).
Here, we think there was such a "reasonable possibility." It
would be difficult to say that the recorded statement in which
codefendant Valerio admitted that he was with petitioner the
night of the homicide and that he saw petitioner point a gun in
a car, ask for ten dollars and heard two shots, did not
contribute to petitioner's conviction for felony murder,
attempted robbery and criminal use of a firearm convictions.
Though there was eyewitness testimony and the defendant's own
confession, it cannot be said beyond a reasonable doubt that
the nontestifying codefendant's confession did not contribute
to petitioner's conviction.
The rights of confrontation and cross-examination are
essential to a fair trial. Under Cruz, which applies
retroactively to Fernandez's collateral attack on his
conviction, the admission of Valerio's statement violated
Fernandez's Sixth Amendment right to confront a witness against
him and so distorted the truthfinding process as to undermine
the fairness of petitioner's joint trial.
Accordingly, because the error was not harmless, the petition
for a writ of habeas corpus is granted in its entirety. The
State is directed to release the petitioner unless within sixty
days from the date of this order the State begins new trial
proceedings against him.