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
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).
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.
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.
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 ...