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October 15, 1993

MICHAEL ROBERTS, Petitioner, against CHARLES J. SCULLY, Warden, Green Haven Correctional Facility, Respondent.


The opinion of the court was delivered by: MICHAEL H. DOLINGER


 Pro se petitioner Michael Roberts seeks a writ of habeas corpus to challenge his 1987 conviction in New York State Supreme Court, Bronx County, on a charge of Burglary in the Second Degree. Petitioner is serving a prison term of fifteen years to life on this conviction.

 In his petition, Roberts originally asserted five enumerated grounds for one of which encompassed multiple claims that had previously been raised on two state court post-appeal motions to vacate his conviction. By Opinion and Order filed June 17, 1992, the District Court found that petitioner had failed to exhaust available state court remedies with respect to his third and fourth claims, which challenged, respectively, one aspect of the trial court's jury instructions and the court's refusal to grant a hearing on his motion to suppress eyewitness identification testimony. Accordingly, the District Court denied petitioner's application for appointment of counsel and directed petitioner to withdraw the unexhausted claims or face dismissal without prejudice of the entire petition. (See Opinion & Order at 8-13.)

 For the reasons that follow, I recommend that the writ be denied and the petition dismissed with prejudice.

 A. Petitioner's Current Claims

 Petitioner now asserts, in substance, eight claims. First, he challenges a ruling by the trial court precluding testimony by him that would assertedly have established bias on the part of the complaining witness. Second, he attacks a ruling by the trial court precluding his counsel from cross-examining the wife of the complaining witness concerning her possible knowledge of her husband's earlier narcotics conviction. Third, petitioner in effect reiterates all of the grounds that he had previously raised on two motions filed in state court under N.Y. Crim. Proc. L. § 440.10 to vacate the conviction. In the course of these two motions, petitioner argued that the prosecutor had improperly resubmitted to the grand jury an as-yet unfiled indictment in order to elicit additional evidence, that the evidence presented to the grand jury was insufficient to justify indictment, that the prosecutor had engaged in misconduct before the grand jury, that the indictment was facially insufficient, that the prosecutor had violated Crim. Proc. L. § 710.30 by failing to give timely notice that the State would call two witnesses to give identification testimony, and that petitioner had been denied effective assistance of trial counsel.

 B. Prior Proceedings

 Petitioner's current predicament is an outgrowth of events that occurred on January 29, 1987, when he was arrested for having allegedly entered the Bronx apartment of Mr. Clarence White and Ms. Vilma Escobar for the purpose of stealing money and property. Roberts was indicted on one count of Burglary in the Second Degree, one count of Petit Larceny, and one count of Criminal Possession of Stolen Property in the Fifth Degree.

 Petitioner's trial began on December 8, 1987 before the Hon. George Covington and a jury. At trial, both Mr. White and Ms. Escobar *fn1" testified that on the evening of January 29, 1987, they and their ten-year-old son had locked the apartment and gone to dinner. (Tr. 30A-32A *fn2" , 56, 78.) On their return later that night, they discovered that the apartment lights had been turned on, and they found petitioner crouched in the living room, holding a television that had been taken from the bedroom. (Tr. 31A-34A, 43A, 13, 57-60.) Nearby on the floor was a vase containing money that had also been removed from the bedroom. (Tr. 33A, 60, 78.) According to both witness, petitioner sought to escape through an opened window, and, despite Mr. White's efforts to restrain him, he leaped down to the courtyard below and began to flee. (Tr. 34A-37A, 5-6, 30-31, 59.)

 Mr. White testified that he had chased petitioner for a number of blocks, until his quarry stopped, apparently from fatigue, and crouched on the street near a parked car. (Tr. 35A-40A, 5-6.) At that point, according to Mr. White, he saw a police patrol car approach and waved for it to stop. Petitioner then stood up and began to walk briskly away. (Tr. 40A-41A, 6-7, 32-33, 35-36.) Mr. White gave chase, caught the fugitive, and held him until police officers from the patrol car arrived and arrested Roberts. (Tr. 41A-43A, 7.)

 The arresting officer, Lola Chong, corroborated the testimony of Mr. White. She recounted that he had flagged down her patrol car, and that she had then observed him chase and seize the petitioner. (Tr. 45, 48.) She and her fellow officer separated the two men and, on learning of what had led to the altercation, they arrested petitioner. (Tr. 45-47.)

 The State also called a second officer, Sergio Ruiz, who reported on the Police Department's unsuccessful effort to find identifiable fingerprints in the apartment. (Tr. 91-92.) According to Officer Ruiz, the only prints located were too smudged for identification. (Tr. 92.)

 Roberts testified in his own defense. He denied ever having entered the apartment. (Tr. 116-17.) Instead, he claimed, White had approached him on the street in an apparently menacing fashion, and that he had fled, with Mr. White in pursuit. (Tr. 114-15, 122-23, 124.) Petitioner claimed that it was he who had flagged down the patrol car (Tr. 124-26), and he attempted to attribute Mr. White's alleged animus, and his assertedly false charges, to a prior incident in which he and White had been involved in a fight. (Tr. 99-101, 107.)

 The jury returned a verdict of guilty on the top charge of second-degree burglary. (Tr. 214-15.) In the wake of that verdict, the court sentenced petitioner, as a predicate felon, to a term of fifteen years to life. (See Supplemental Affidavit of Assistant District Attorney Magda Vives, sworn to Oct. 9, 1992, at P 6.)

 Petitioner filed an appeal in the Appellate Division, First Department. In his brief he challenged the trial court's limitation of both of his own testimony concerning the alleged prior altercation with Mr. White, and the cross-examination of Vilma Escobar concerning her knowledge of a prior drug conviction of her husband. Petitioner also attacked the trial court's instructions concerning the significance of his "flight," and the court's summary denial of his pre-trial Wade motion. On February 21, 1989, the Appellate Division affirmed the conviction without opinion. People v. Roberts, 147 A.D.2d 991, 537 N.Y.S.2d 940 (1st Dep't 1989).

 Petitioner thereafter applied to the New York Court of Appeals for leave to appeal. That application was denied on April 20, 1989. People v. Roberts, 73 N.Y.2d 1021, 541 N.Y.S.2d 775, 539 N.E.2d 603 (1989).

 In September 1989, petitioner filed a motion in the trial court seeking relief under N.Y. Crim. Proc. L. § 440.10, based solely on the claim that the prosecutor had improperly resubmitted to the grand jury an already approved indictment so as to permit additional testimony to be taken. Justice Covington denied the motion and then adhered to his decision on petitioner's motion for reargument. (See Vives Supp. Aff. at PP 9-11 & Exhs. 7-11.) Petitioner then sought leave to appeal from those decisions, and the Appellate Division denied the application. (Id. at 12 & Exh. 12.)

 Petitioner filed a second motion to vacate on June 6, 1990. In that motion he raised the previously noted objections to the indictment and the prosecutor's conduct in the grand jury, as well as his claim of ineffective assistance of trial counsel. Justice Covington denied this motion on October 3, 1990, and the Appellate Division denied petitioner's application for leave to appeal on January 8, 1991. (See id. at P 13, 15-16 & Exhs. 13-14, 16-17.)

 Petitioner filed his current habeas petition in 1991, after the last denial of relief by the state courts.


 A. The Exhaustion Issue Briefly Revisited

 In holding that two of petitioner's claims were unexhausted, the District Court concluded that petitioner had failed to identify either one to the state appellate courts as being of constitutional magnitude. One of these claims was that the trial court had ...

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