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August 30, 1990


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

Pasquale Maiorino, appearing pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). In 1980, after a jury trial in the New York State Supreme Court, New York County, Maiorino was convicted of murder in the second degree (New York Penal Law § 125.25[1]) for having intentionally caused the death of Clay Delauney, and attempted murder in the second degree (New York Penal Law §§ 110.00, 125.25[1]) for the stabbing of Kevin McCullough. His co-defendant, Nicholas Letterese, was convicted of manslaughter in the first degree and assault in the first degree.

At trial, Maiorino and Letterese claimed that they mistakenly entered a bar frequented by gay men, Uncle Charlie's South, where they met the victims, Clay Delauney and Kevin McCullough. They then accompanied the victims to Delauney's apartment in order to purchase some marijuana. Maiorino and Letterese testified that, after setting a scene for seduction that included candlelight and several attempts to ply Maiorino and Letterese with alcohol and narcotics, Delauney and McCullough attempted to forcibly sodomize them and that Mariorino and Letterese were justified in using deadly physical force in order to repel the attack. The prosecution argued that Maiorino and Letterese approached Delauney and McCullough intent on robbing them. In support of the prosecution's theory, McCullough testified that, after entering Delauney's apartment, Letterese attacked Delauney and McCullough with a candlestick holder and Maiorino stabbed them repeatedly with a letter opener and a clasp knife. Delauney died the next day from his wounds and McCullough was permanently disabled.

The Appellate Division affirmed Maiorino's conviction without opinion, People v. Maiorino, 92 A.D.2d 1090, 461 N YS.2d 663 (1st Dep't 1983). The Court of Appeals subsequently denied Maiorino's application for leave to appeal, People v. Maiorino, 59 N.Y.2d 975, 466 N.Y.S.2d 1036, 453 N.E.2d 560 (1983).

Maiorino argues that his constitutional rights were violated in two respects. First, he contends that the trial judge, Justice Edwin Torres, improperly failed to instruct the jury that Maiorino was justified in using deadly force if he reasonably believed that the victims intended to forcibly sodomize Maiorino or Letterese.

Second, he claims that his appellate attorney deprived him of effective assistance of counsel on appeal by failing to raise two arguments. He contends that Justice Torres erred by instructing the jury that if Letterese were found guilty of manslaughter in the first degree Maiorino could be convicted of murder in the second degree without, according to Maiorino, having caused the death of Delauney, thereby relieving the prosecution of its burden of proof as to causation. Maiorino also asserts that the limitation of defense counsel's opportunity to comment on the witness McCullough's civil lawsuit against Maiorino deprived Maiorino of a fair trial.


A. Procedural Default

The state concedes that Maiorino raised all of his present claims in his brief to the Appellate Division and in his application for leave to appeal to the Court of Appeals and has therefore exhausted all available state remedies. However, the state argues that this court is precluded from reviewing Maiorino's claim regarding the sodomy-justification defense because Maiorino failed to make the objection at trial required by New York Criminal Procedure Law § 470.05(2) to preserve this claim for appellate review. Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-08, 53 L.Ed.2d 594 (1977). The state points out that when Maiorino raised the sodomy-justification claim on appeal, the state alerted the Appellate Division to Maiorino's procedural default, in addition to arguing that Maiorino was mistaken on the merits. The Appellate Division subsequently affirmed the conviction without opinion. People v. Maiorino, 92 A.D.2d 1090, 461 N YS.2d 663 (1st Dep't 1983). The state argues that the affirmance without opinion of Maiorino's conviction indicates that the Appellate Division held that Maiorino's appeal was barred because of his state procedural default.

The argument is unpersuasive in light of the recent United States Supreme Court decision, Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), in which it was held that, on a petition for a writ of habeas corpus, a federal court may review a federal claim rejected by the state appellate court "unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." 489 U.S. at 263, 109 S.Ct. at 1043, 103 L.Ed.2d at 317. The Harris court concluded that "the mere fact that a federal claimant failed to abide by a state procedural rule does not, in and of itself, prevent this Court from reaching the federal claim: `the state court must actually have relied on the procedural bar as an independent basis for its disposition of the case.'" Id. at 261, 109 S.Ct. at 1042, 103 L.Ed.2d at 316.

The state contends that the Harris ruling is limited to ambiguous state opinions and that the controlling law in the Second Circuit on affirmances without opinion continues to be Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982) (Appellate Division's silent affirmance, where procedural default is raised as an issue, constitutes a determination of procedural default). However, the Second Circuit indicated that Martinez v. Harris was no longer controlling when it stated that "Harris [v. Reed] changes the law in this circuit" and cited Martinez. Peterson v. Scully, 896 F.2d 661, 664 (2d Cir. 1990). Moreover, a number of district courts have explicitly interpreted Harris' "plain statement" rule to apply to affirmances without opinion. In Flores v. Scully, 1989 WL 123097, 1989 U.S. Dist. LEXIS 12180 (S.D.N.Y. 1989) (Cedarbaum, J.), the court held that Harris allowed federal habeas review despite the petitioner's possible procedural default where the Appellate Division affirmed his conviction without opinion. See also Fagon v. Bara, 717 F. Supp. 976, 986-87 (E.D.N.Y. 1989) (where last state court to review conviction affirmed without opinion and did not expressly rely on a procedural default, federal habeas review is not precluded); Lopez v. Scully, 716 F. Supp. 736, 738-39 (E.D.N.Y. 1989) (affirmance without opinion insufficient to bar federal habeas review; "a clear and unambiguous reliance of procedural default by the state court" is necessary); Maxwell v. Smith, 722 F. Supp. 7, 8 (W.D.N Y 1989) (federal court petitioned for writ of habeas corpus is not precluded from reviewing federal claim that was procedurally defaulted in state court unless the last state court "clearly and expressly" stated that its decision rested on the procedural bar).

Thus, Harris makes clear that a "plain statement" that the affirmance is based on a state procedural default is required in order to bar federal habeas review. 489 U.S. at 263, 109 S.Ct. at 1043, 103 L.Ed.2d at 317. An affirmance without opinion does not "clearly and expressly" indicate whether the appellate court relied upon the merits of the claim or the procedural default in rendering its judgment. Id. at 263, 109 S.Ct. at 1043, 103 L.Ed.2d at 317. In light of the Harris ruling, this court need not "discern what really is not discernable" and therefore may review the petitioner's claim regarding the sodomy-justification instruction on its merits. Maxwell, 722 F. Supp. at 8.

B. Jury Charge

Maiorino contends that Justice Torres' refusal to instruct the jury pursuant to New York Penal Law § 35.15 that Maiorino and Letterese would have been justified in using deadly force if they reasonably believed that Delauney and McCullough intended to forcibly sodomize them deprived Maiorino of due process under the Fourteenth Amendment. The state replies that the evidence was insufficient to support a sodomy-justification charge.

"When evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense, and must when so requested." People v. Watts, 57 N.Y.2d 299, 301, 456 N YS.2d 677, 678, 442 N.E.2d 1188, 1189 (1982) (defendant's statement that the victim threatened him with a kitchen knife was held insufficient to require a justification charge). Conversely, where no reasonable view of the evidence ...

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