The opinion of the court was delivered by: Nickerson, District Judge.
Petitioner applies for a writ of habeas corpus.
In 1982 in Supreme Court, Kings County, New York, petitioner,
then nineteen years old, was convicted after a jury trial of
murder in the second degree and robbery in the first degree.
The court sentenced him to concurrent terms of twenty years to
life on the murder conviction and twelve and one half to twenty
five years on the robbery conviction.
Before trial the court denied petitioner's motion for a
severance of his case from that of his codefendant, Benjamin
Stephens, despite the court's ruling that "interlocking"
confessions by the two defendants would be admitted in
On appeal to the Appellate Division, Second Department,
petitioner contended, among other things, that his pretrial
motion for a severance was erroneously denied. The Appellate
Division affirmed on May 12, 1986, stating in a memorandum
opinion, among other things, that the "admissions" of
petitioner and Stephens "while cross-inculpatory to some
degree, were so similar that they interlocked; therefore, it is
unlikely that any prejudice to this defendant resulted from the
admission of his codefendant's confession," citing People v.
Cruz, 66 N.Y.2d 61, 495 N.Y.S.2d 14, 485 N.E.2d 221 (1985).
People v. Graham, 120 A.D.2d 611, 502 N.Y.S.2d 83 (2 Dept.
On September 12, 1986 the New York Court of Appeals denied
petitioner's application for leave to appeal. 68 N.Y.2d 812,
507 N.Y.S.2d 1030, 499 N.E.2d 879 (1986).
On February 20, 1987 petitioner moved in Supreme Court, Kings
County, under N.Y. C.P.L. § 440.10, claiming that he had been
denied the effective assistance of appellate counsel. The
motion was denied on May 7, 1987.
On July 10, 1987 petitioner made a second motion under
Section 440.10, contending that the United States Supreme Court
decision in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95
L.Ed.2d 162 (1987), was applicable to his case and should be
retroactively applied. The Cruz case held that it was error to
admit a codefendant's confession inculpating another defendant
even though that defendant had made an "interlocking"
Justice Ronald A. Zweibel denied the motion, deciding that
while the Supreme Court decision in Cruz should be
retroactively applied and petitioner's right to confrontation
had been violated, the error was harmless beyond a reasonable
doubt. 140 Misc.2d 417, 531 N.Y.S.2d 172 (1988).
The Appellate Division affirmed the denial of the motion,
stating, among other things, that petitioner's confession was
detailed and comprehensive and "satisfactorily explained his
part in the crime" and that "in addition" petitioner "did not
repudiate his confession, and he was identified in court by a
witness to the crime." The court held that any error in
admitting the codefendant's interlocking statements was
harmless beyond a reasonable doubt. 158 A.D.2d 714, 552
N YS.2d 162 (2 Dept. 1990).
On May 1, 1990 the Court of Appeals denied petitioner's
application for leave to appeal. 76 N.Y.2d 735, 558 N.Y.S.2d
897, 557 N.E.2d 1193 (1990).
In this court petitioner makes several arguments, all of
which were exhausted in the state courts and only one of which
has any merit, namely, the contention that petitioner's
confrontation rights under the Sixth and Fourteenth Amendments
were violated by the admission Stephens' confession.
The only questions are whether the Supreme Court decision in
Cruz v. New York, supra, decided after the trial in this case
and after the direct appeal from the judgment of conviction,
should be retroactively applied and, if it is, whether
admission of Stephens' statement was harmless error.
It would serve no purpose to rehearse the history of the
Supreme Court decisions discussing retroactive application of
new rulings to convictions challenged by habeas corpus
petitions. The law is well summarized by Judge Stanton in
Reddy v. Coombe, 730 F. Supp. 556, ...