VI. Petitioner was denied notice and an opportunity to give evidence at the second grand jury proceedings in violation of the Fifth, Sixth and Fourteenth Amendments.
VII. The court's jury charge concerning § 265.11(2), that "a person intends to sell a firearm when his conscious aim or objective is to sell such firearm," established a mandatory presumption of his guilt on the basis merely of his state of mind, in that it required the jury to speculate as to his state of mind, omitted reference to an overt act tending to effect the commission of a crime, and failed to instruct the jury that the presumption could be overcome, in violation of the Fifth, Sixth and Fourteenth Amendments.
VII. The court failed to instruct the jury that "a mere showing of an intent to commit a crime coupled with some act, or acts, in the furtherance of the intent does not necessarily trigger the operability of the statute making a person guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such a crime," in violation of the Fifth, Sixth and Fourteenth Amendments.
VIII. The car search was warrantless, there were no exigent circumstances and it was based on illegally obtained statements by Alberto in violation of the Fourth and Fourteenth Amendments.
VIII. Petitioner was denied the opportunity at a pretrial hearing to contest the legality of his arrest and of the car search in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments.
IX. Petitioner's alleged post-arrest statements were the result of beatings, injury and coercion and were admitted into evidence in violation of the Fifth, Sixth and Fourteenth Amendments.
IX. The court denied petitioner the opportunity to introduce medical records and expert testimony that would have shown the extent of his injuries and that the statements attributed to him were involuntary in violation of the Fifth, Sixth and Fourteenth Amendments.
IX. There was no corroboration of petitioner's alleged statement about selling the .38-caliber revolver as required by N.Y. Crim. Proc. Law § 60.50 in violation of the Fifth, Sixth and Fourteenth Amendments.
IX. Petitioner was denied effective assistance of trial counsel, in violation of the Fifth, Sixth and Fourteenth Amendments, in general and in particular for:
[i]. failing to raise the issue of excessive prearraignment delay [see Claim "II"];
[ii]. failing to challenge the indictment [see Claim "V"];
[iii]. failing to challenge the car search;
[iv]. failing to succeed in introducing medical records and expert testimony;
[v]. failing to object to or challenge the use of the illegally-obtained statements;
[vi]. failing to call a physician designated as a witness;
[vii]. failing to argue that there was no corroboration of petitioner's alleged statement about selling the .38-caliber revolver; and
[viii]. failing to object to the omission of jury instructions based on N.Y. Crim. Proc. Law § 60.45(2) (when an admission or other statement is "involuntarily made") and § 60.50 (requiring corroboration of an admitted crime) [see Claim "XI"].
IX. Petitioner was denied effective assistance of appellate counsel in violation of the Fifth, Sixth and Fourteenth Amendments, in general and in particular for:
[i]. failing to challenge the legality of the car search [see Claim "VIII"]; and
[ii]. failing to argue the absence of the corroboration required by N.Y. Crim. Proc. Law § 60.50.
XI. The court failed to instruct the jury on N.Y. Crim. Proc. Law § 60.45(2) and § 60.50
in violation of the Fifth, Sixth and Fourteenth Amendments.
XI. The jury instructions omitted "any reference to presumption of innocence, reasonable doubt, coercion, threats, the time between arrest, arraignment and the time the statements were allegedly made and the critical issue of credibility," in violation of the Fifth, Sixth and Fourteenth Amendments.
XII. The prosecution falsified Brady material by scribbling over statements on a "voluntary disclosure form" that 33 yellow capsules and 49 blue capsules were found on petitioner, thus showing that the prosecution was aware that petitioner was buying drugs from Willie Jones, not robbing him or attempting to sell him a firearm, in violation of the Fifth, Sixth and Fourteenth Amendments.
XIV. The state withheld at trial legible copies of notes taken by a police officer on the scene on the night of petitioner's arrest and other exculpatory material that petitioner has now obtained under New York's Freedom of Information Law, in violation of the Fifth, Sixth and Fourteenth Amendments.
The requirement of the federal habeas corpus statute, 28 U.S.C. § 2254, that a person in state custody exhaust his or her state remedies before seeking federal habeas corpus review is based on considerations of comity between federal and state courts, ensuring that the state courts have an opportunity to consider and correct any violations of their prisoners' federal constitutional rights. See, e.g., Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984); Mercado v. Henderson, 733 F. Supp. 19, 21 (S.D.N.Y. 1990); Castillo v. Sullivan, 721 F. Supp. 592, 593 (S.D.N.Y. 1989). Exhaustion requires a petitioner to have fairly presented at each available level of the state courts the same federal constitutional claims, legally and factually, raised in his or her petition to the federal court so that the state courts, including the state's highest court, will have had the opportunity to pass on them. Picard v. Connor, 404 U.S. at 275-76; Daye v. Attorney General of New York, 696 F.2d at 191; Klein v. Harris, 667 F.2d 274, 282-83 (2d Cir. 1981). However, "for exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989)). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Id. See also Coleman v. Thompson, 501 U.S. 722, 735 n.1, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991).
A "mixed" petition, presenting both exhausted and unexhausted claims, must be dismissed in its entirety. A petitioner may then exhaust his unexhausted claims and subsequently come back to the federal court if he or she does not obtain the relief sought from the state courts or file a new petition dropping the unexhausted claims. Rose v. Lundy, 455 U.S. 509, 514, 522, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Grey v. Hoke, 933 F.2d at 120; Rodriguez v. Hoke, 928 F.2d 534, 537-38 (2d Cir. 1991); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990).
Another doctrine applicable to petitioner's case herein is the federal procedural forfeiture doctrine:
When a state prisoner has failed to raise his federal constitutional claim in the state courts in accordance with state procedural rules, including those requiring that claims of constitutional defects in the trial be raised on direct appeal from a conviction, there has been a procedural default that bars federal habeas review unless the petitioner shows both cause for the noncompliance and prejudice resulting from the alleged constitutional violation. The principle is relaxed when the state courts themselves have disregarded the default and decided the constitutional claim on the merits.
Roman v. Abrams, 822 F.2d 214, 222 (2d Cir. 1987), cert. denied, 489 U.S. 1052, 103 L. Ed. 2d 580, 109 S. Ct. 1311 (1989). See Coleman v. Thompson, 501 U.S. at 728-33; Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977).
Petitioner can be seen to have raised claims V, V, IX, IX and IX in his direct appeal and sought leave to appeal their denial to the New York State Court of Appeals. Claims IX[i] and IX[ii] (ineffective assistance of appellate counsel) arguably were implicit in petitioner's application for a writ of error coram nobis. Ground II was raised in petitioner's second § 440.10 motion and leave to appeal was denied by the Appellate Division. Therefore, petitioner has exhausted state remedies with respect to these claims.
With respect to petitioner's other 23 claims, I find that they were not fairly presented to the New York courts. Claims VIII and IX[iii] appear never to have been raised at any point prior to this petition. In his application for a writ of error coram nobis to the Appellate Division, as mentioned above, petitioner raised not only instances of ineffective assistance of appellate counsel but also issues of ineffective assistance of trial counsel and numerous other claims of trial court error and prosecutorial misconduct in their own right. Thus, he argued what can be seen in this petition as claims similar to I, I, I, III, IV, VI, VII, VII, VIII, IX[i], IX[ii], IX[iv], IX[v], IX[vi], IX[vii], IX[viii], XI, XI, XII and XIV. However, petitioner did not present those claims directly to the New York courts in his direct appeal or his § 440.10 motions, and his application to the Appellate Division for a writ of error coram nobis was an improper procedural vehicle to raise them under New York law and did not allow that court to consider them. Under New York law, only his claims concerning his appellate counsel were before that court.
For exhaustion purposes, a petitioner "must have employed the proper state law procedural vehicle so that the state courts were afforded the opportunity to consider the claims raised on their merits." Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N.Y. 1987) (citing Dean v. Smith, 753 F.2d 239 (2d Cir. 1985)). See also Bentley v. Scully, 851 F. Supp. 586, 603 (S.D.N.Y. 1994) (petitioner having "employed an incorrect procedure to litigate [this] ground...[, it] remain[s] unexhausted and may not be reviewed by this Court.") Under New York law "an application for a writ of error coram nobis is not an appropriate vehicle" for claims that would properly be addressed to the trial court in a § 440.10 motion, including a claim of ineffective assistance of trial counsel like petitioner's here. Cortez v. Scully, 717 F. Supp. 224, 226 (S.D.N.Y. 1989). Accord: People v. Gordon, 183 A.D.2d 915, 584 N.Y.S.2d 318 (2d Dep't 1992). See also Walker v. Dalsheim, 669 F. Supp. at 70-72; People v. Ramos, 63 N.Y.2d 640, 643, 479 N.Y.S.2d 510, 512, 468 N.E.2d 692 (1984); People v. Brown, 45 N.Y.2d 852, 853, 410 N.Y.S.2d 287, 382 N.E.2d 1149 (1978). The essence of an application for a writ of error coram nobis is that it is addressed to the very court which rendered the judgment or order from which relief is sought. People v. Bachert, 69 N.Y.2d 593, 599, 516 N.Y.S.2d 623, 627, 509 N.E.2d 318 (1987); see also Mathis v. Hood, 851 F.2d 612, 614-15 (2d Cir. 1988). Thus, in People v. Gordon, the Appellate Division denied an application for a writ of error coram nobis based on an alleged Sandstrom error in the trial court's jury charge, making it clear that "in a criminal action, the writ of error coram nobis lies in this court only to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel." 183 A.D.2d at 915, 584 N.Y.S.2d at 318.
The above notwithstanding, however, with the exception of claims IX[i], IX[ii], IX[iii], IX[iv], IX[v], IX[vi], IX[vii], IX[viii] (all of petitioner's claims of ineffective assistance of trial counsel) and claim XIV (relating to evidence discovered after trial), the remaining 14 claims, even though not ever presented or presented only in the coram nobis application, are exhausted for purposes of federal habeas corpus review because it is clear the state courts would now hold that such claims are procedurally barred from their review and, as discussed at page 16 above, in such circumstances, "a petitioner no longer has 'remedies available in the courts of the State,'" Grey v. Hoke, 933 F.2d at 120, and, thus, has satisfied the exhaustion requirement.
With respect to the ineffective assistance of trial counsel claims (IX[i]-[viii]), review may still be available by means of a § 440.10 motion in the trial court. Although petitioner has already filed three § 440.10 motions without including these claims, the trial court retains the discretion to consider another motion raising them. See N.Y. Crim. Proc. Law § 440.10(3). Therefore, "petitioner has not exhausted his state remedies with respect to his ineffective assistance of counsel claim[s]." Castillo v. Sullivan, 721 F. Supp. at 594. See also Rodriguez v. Hoke, 928 F.2d at 537-38; Sanford v. Senkowski, 791 F. Supp. 66, 68-69 (E.D.N.Y. 1992); Cortez v. Scully, 717 F. Supp. at 226; Williams v. Scully, Civ. No. 87-742, 1989 WL 113164 at *2 (E.D.N.Y. Sept. 15, 1989). With respect to ground XIV, wherein petitioner claims to have discovered new evidence that the New York courts necessarily would have had no opportunity to review, he must present it to them in order to exhaust this claim under N.Y. Crim. Proc. Law § 440.10(1)(g).
Given the presence of grounds IX[i-viii] and XIV, which remain unexhausted, and the other grounds which have been exhausted, the petition is a "mixed" one under Rose v. Lundy.
However, but for the possibility petitioner can establish cause and prejudice, the 14 claims of I, I, I, III, IV, VI, VI, VII, VII, VIII, VIII, XI, XI and XII would be barred from our review under the procedural forfeiture doctrine because of the defaults and forfeitures in the state courts (see p. 20 and footnote 3, above). The sole "cause" petitioner has advanced for such defaults is the alleged ineffective assistance of trial counsel. To prevail on any of these claims on that basis, however, petitioner must still demonstrate ineffective assistance under the standard established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). "Attorney error short of ineffective assistance of counsel does not constitute cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 492, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). It is important for petitioner to be hereby advised that failure to properly claim ineffective assistance of trial counsel in the New York courts bars him from pleading it as a cause for procedural defaults. See, e.g., Murray v. Carrier, 477 U.S. at 489; Gonzalez v. Sullivan, 934 F.2d at 422; Hamilton v. Hood, 806 F. Supp. 429, 433 (S.D.N.Y. 1992). Therefore, unless petitioner properly presents his ineffective assistance claims to the state courts and properly exhausts them, claims I, I, I, III, IV, VI, VI, VII, VII, VIII, VIII, XI, XI and XII of his petition herein would be wholly barred from this court's review.
Given the presence in the petition of both exhausted and unexhausted claims, it must be dismissed without prejudice pursuant to Rose v. Lundy and its progeny. See also, e.g., Rodriguez v. Hoke, 928 F.2d at 537-38; Pesina v. Johnson, 913 F.2d at 54. Petitioner has the options of (a) exhausting his state remedies with respect to the unexhausted claims and then, should he not have obtained relief from the state courts, refiling his petition here, or (b) refiling his current petition omitting the unexhausted claims. He is hereby cautioned, however, that, in the event he chooses the second option, any subsequent petition he may seek to file thereafter asserting those claims may be dismissed as an abuse of the writ. See McCleskey v. Zant, 499 U.S. 467, 489-496, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991); Rose v. Lundy, 455 U.S. at 520-21. Furthermore, as explained above, if he chooses the second option, this court will dismiss claims I, I, I, III, IV, VI, VI, VII, VII, VIII, VIII, XI, XI and XII because they will be procedurally barred from review because of his failure to show cause for the procedural defaults pertaining to them during the state proceedings.
Accordingly, I respectfully recommend that your Honor dismiss this petition at this time without prejudice to refiling after petitioner has either exhausted his unexhausted claims or submitted a petition dropping them.
Copies of the foregoing report and recommendation have been mailed October 19, 1994 to:
Mr. Robert Camarano