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January 15, 1993

GEORGE BARTLETT, Superintendent, Respondent.

The opinion of the court was delivered by: DAVID N. EDELSTEIN

 EDELSTEIN, District Judge:

 Mr. Winston Holmes has petitioned for a writ of habeas corpus. For the reasons stated below, all claims in the petition are denied except the one based upon an allegedly improper ruling at trial that restricted defense counsel's ability to cross-examine a witness. The merits of this claim will be reviewed in a subsequent order.


 Mr. Holmes was convicted on October 28, 1977, in Supreme Court of the State of New York, Bronx County, of two counts of felony murder and two counts of manslaughter in the first degree. The Court sentenced petitioner to terms of 25 years to life on the felony murder counts and 8 1/3 years to 25 years on the manslaughter counts, all terms to run concurrently. This conviction resulted from a retrial of petitioner, who, along with a co-defendant, Mr. Ernest Welcome, obtained a writ of habeas corpus in the Southern District of New York that overturned his 1970 conviction. See Holmes v. Bombard, No. 76 Civ. 747 (VLB) (S.D.N.Y. 1977). Mr. Welcome received a new trial because the trial court restricted his right to examine a witness concerning a Mr. Albert Cunningham's confession to the charged crimes. See Welcome v. Vincent, 549 F.2d 853 (2d Cir.), cert. denied, 432 U.S. 911, 53 L. Ed. 2d 1084, 97 S. Ct. 2960 (1977). Noting that Mr. Holmes' application for collateral relief presented the precise issue decided by the Court of Appeals in Welcome, Honorable Vincent L. Broderick granted petitioner's application. On retrial, Mr. Welcome was acquitted and, as noted, Mr. Holmes was convicted of four counts of homicide. Petitioner's other co-defendant, Mr. Charles Gale, also successfully obtained federal collateral relief, but the Second Circuit later overturned this decision. Gale v. Harris, 450 F. Supp. 375 (S.D.N.Y.), rev'd, 580 F.2d 52 (2d Cir. 1978), cert. denied, 440 U.S. 965, 59 L. Ed. 2d 781, 99 S. Ct. 1515 (1979).

 Petitioner appealed his conviction to the Appellate Division, First Department, which affirmed the conviction without comment. See People v. Holmes, 75 A.D.2d 723 (1st Dep't 1980). The New York Court of Appeals denied petitioner leave to appeal. See People v. Holmes, 51 N.Y.2d 772 (1980).

 On December 19, 1989, petitioner unsuccessfully sought collateral relief, in the form of a writ of coram nobis, from the Appellate Division, First Department, due to ineffective assistance of counsel. In addition, petitioner has sought federal collateral relief on two prior occasions. In his first federal petition, Mr. Holmes sought relief because: (1) he was the subject of an uncounselled lineup, which allegedly tainted in-court identifications; (2) the trial court improperly admitted evidence concerning eyewitness identifications made at a Wade hearing and a prior trial; (3) petitioner was denied the right to cross-examine a Detective Farrell concerning Mr. Cunningham's allegedly exculpatory confession; and (4) petitioner was denied the right to cross-examine Detective Farrell on rebuttal concerning the employment of a Mr. James Branch. Honorable John E. Sprizzo dismissed the petition because petitioner had exhausted only ground three. See Holmes v. LeFevre, No. 81 Civ. 6580 (S.D.N.Y. Oct. 1, 1982).

 Petitioner's second application for federal habeas relief was premised on: (1) improper in-court identifications; (2) denial of the right to cross-examine Detective Farrell concerning Mr. Cunningham's confession; (3) the trial court's supposed error in admitting evidence concerning eyewitness identifications made at a Wade hearing and a prior trial; and (4) the prosecutor's statement in a brief, submitted in federal court in connection with an action by Mr. Gale, that Mr. Cunningham's confession was true (the "Second Circuit brief claim"). After petitioner withdrew ground three as a basis for relief, Judge Sprizzo dismissed the petition due to petitioner's failure to exhaust ground one. See Holmes v. LeFevre, No. 85 Civ. 186 (S.D.N.Y. Jul. 31, 1985).

 Petitioner now seeks a writ of habeas corpus on the grounds that: (1) he was denied the right to cross-examine Detective Farrell concerning Mr. Cunningham's confession; (2) the prosecutor indicated in a Second Circuit brief that Mr. Cunningham's confession was true; (3) petitioner was denied effective assistance of counsel on appeal because his attorney failed to advocate the claims listed as (4) and (5) in the present petition; (4) he was subjected to an uncounselled lineup, which led to improper in-court identifications; and (5) he was denied a speedy trial because he was not arraigned until January 5, 1970, eighteen months after his return to New York on a fugitive warrant.

 This matter was referred to Magistrate Judge Kathleen A. Roberts, who issued a Report and Recommendation dated June 4, 1992, in which she recommended dismissing the petition under Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), due to failure to exhaust state remedies. Magistrate Judge Roberts reasoned that petitioner has filed two previous petitions seeking writs of habeas corpus, both of which, like the present petition, asserted that his conviction resulted from impermissible in-court identifications. Both prior petitions were dismissed because petitioner had failed to exhaust this claim by presenting it to New York State courts. The Second Circuit also found that petitioner had failed to exhaust this claim in an order dated May 14, 1987. Because petitioner has not alleged that he has presented the unexhausted claim to the state courts, Magistrate Judge Roberts found that the claim had not been exhausted and thus federal review was inappropriate. See Rose, 455 U.S. at 522.

 Although petitioner has not filed objections to the Report and Recommendation, the Office of the District Attorney, Bronx County (the "D.A."), has filed objections. The D.A. asserts that Magistrate Judge Roberts erred in finding that petitioner had failed to exhaust state remedies. The D.A. acknowledges that Mr. Holmes never raised certain claims on direct appeal, and that due to this omission, petitioner has forfeited his right to present these claims to the New York State courts under Criminal Procedure Law § 440.10(2)(c). The D.A. reasons, however, that petitioner's procedural default, and the resulting inability to present these claims in a state tribunal, implies that these claims are deemed exhausted. The D.A. further contends that Mr. Holmes' application should be dismissed because he has abused the writ.


 A. Exhaustion of State Remedies

 This Court agrees with the D.A. that petitioner has exhausted state remedies. Before a federal court may grant habeas relief to a state prisoner, the petitioner must first exhaust available state remedies. See 28 U.S.C. § 2254 (b)-(c); Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Irvin v. Dowd, 359 U.S. 394, 404-05, 3 L. Ed. 2d 900, 79 S. Ct. 825 (1959). The exhaustion doctrine is not jurisdictional, but rather is based on principles of comity and federalism. See Castille v. Peoples, 489 U.S. 346, 349, 103 L. Ed. 2d 380, 109 S. Ct. 1056 (1989); Rose, 455 U.S. at 515. Exhaustion requires that petitioner give state tribunals a fair opportunity to decide any federal constitutional claims. See Rose, 455 U.S. at 515; Picard, 404 U.S. at 275.

 A fair opportunity consists of informing a state court of both the factual and legal premises of a constitutional claim. See Castille, 489 U.S. at 351; Picard, 404 U.S. at 276-77; Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). This requirement is satisfied if the legal and factual bases of a petitioner's federal habeas claim is the substantial equivalent of claims presented to the state court. See County Court v. Allen, 442 U.S. 140, 147-48, 60 L. Ed. 2d 777, 99 S. Ct. 2213 n.5 (1979); Picard, 404 U.S. at 278. Exhaustion requires presenting federal claims to the highest court of the state. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam). "Adherence to exhaustion principles does not require a petitioner to raise his claims by citing chapter and verse of hornbook law; it simply mandates that the state be given a fair opportunity to hear the claim." Blissett v. Lefevre, 924 F.2d 434, 439 (2d Cir.) (quoting Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990)), cert. denied, 112 S. Ct. 158, 116 L. Ed. 2d 123 (1991).

 The Second Circuit, in analyzing the exhaustion doctrine's fair opportunity requirement, has stated that:

 even if a particular matter is not treated generally as having constitutional dimension, if the courts of the state in question have themselves previously treated the fact pattern as appropriate for constitutional analysis, it would be unreasonable to suppose that they are not alert to constitutional considerations. Thus we consider that a defendant who cites state [or federal] precedent that employs pertinent constitutional analysis has adequately put the state courts on notice of the constitutional thrust of his claim.

 Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc).

 In this case, petitioner raised his claims based upon denial of a speedy trial and restrictive cross-examination on direct appeal. Moreover, he raised his claim based on ineffective assistance of appellate counsel in a petition for coram nobis. Accordingly, as Judge Sprizzo found, these claims are exhausted. Indeed, the D.A. concedes as much. See Letter from Billie Manning, Assistant District Attorney, Bronx County, to Judge David N. Edelstein (June 10, 1992) (on file in the Southern District of New York).

 Thus, petitioner has exhausted all his claims except the one based upon allegedly improper in-court identifications and the Second Circuit brief claim. A habeas petition that contains both exhausted and unexhausted claims must be dismissed. See Rose, 455 U.S. at 522. Nevertheless, petitioner has satisfied the exhaustion requirement. The twin claims not presented to the state courts are deemed exhausted because petitioner is precluded from presenting these claims to any New York State court. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Twitty v. Smith, 614 F.2d 325, 332 n.9 (2d Cir. 1979); see also Duckworth v. Serrano, 454 U.S. 1, 3, 70 L. Ed. 2d 1, 102 S. Ct. 18 (1981) (per curiam) (exhaustion required unless futile to attempt to exhaust state remedies); Daye, 696 F.2d at 190 n.3 (failure to comply with state procedural rules, which bars subsequent assertion of challenge to conviction, implies exhaustion of state remedies).

 This conclusion follows from an analysis of New York's Criminal Procedure Law and New York's Rules of Practice. New York law prohibits petitioner from seeking more than one appeal in the New York Court of Appeals, and thus, petitioner has no further recourse to the Court of Appeals on direct appeal. See Rules of Practice, New York Court of Appeals § 500.10(a); Grey, 933 F.2d at 120; Gatto v. Hoke, 809 F. Supp. 1030 (E.D.N.Y. 1992); see also Wilwording v. Swenson, 404 U.S. 249, 30 L. Ed. 2d 418, 92 S. Ct. 407 (1971) (per curiam) (claims exhausted upon presentation to state's highest court, and presentation to state ...

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