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October 19, 1994

ROBERT CAMARANO, Petitioner, against FRANK IRVIN, Superintendent, Wende Correctional Facility, Respondent.

The opinion of the court was delivered by: GRUBIN


 SHARON E. GRUBIN, United States Magistrate Judge:

 Petitioner, currently an inmate at the Green Haven Correctional Facility, pro se seeks a writ of habeas corpus under 28 U.S.C. § 2254 to obtain his release from custody pursuant to a February 14, 1983 judgment of the New York State Supreme Court, New York County (Galligan, J.), convicting him after a jury trial of criminal sale of a firearm in the second degree, see N.Y. Penal Law § 265.11(2) (McKinney 1989), and three counts of criminal possession of a weapon in the third degree. See N.Y. Penal Law § 265.02(1) (McKinney 1989). Petitioner was sentenced as a persistent felony offender to four concurrent indeterminate terms of 15 years to life. I respectfully recommend that the petition be dismissed at this time without prejudice pursuant to the doctrine of Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), because it contains unexhausted as well as exhausted claims.


 Viewing the facts in a light favorable to the state, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 102 L. Ed. 2d 334, 109 S. Ct. 316 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986), the evidence established that on February 9, 1982 at about 4:45 a.m. petitioner and a friend, Ellen Alberto, were parked in a station wagon on East 123rd Street between Park and Lexington Avenues in Manhattan. Two police officers driving in the area observed a young man, Willie Jones, in the street next to the station wagon who shouted at them, pointed to the car and said "They just robbed me. He has a gun." When the officers exited their car to investigate, petitioner and Alberto, who was driving, sped off, going north on Park Avenue and then east on 124th Street. After a high-speed chase through the Bronx ending on the George Washington Bridge and a struggle after petitioner tried to run from the officers, he was arrested and read his Miranda rights. After complaining of head pains petitioner was taken to Harlem Hospital and then to Central Booking where, after being read his Miranda rights again, he told a detective "I didn't rob the nigger. I was there to sell him the .38." Police found a 12-gauge sawed-off shotgun and a .9mm automatic pistol in the tire compartment of the station wagon. After interrogating Alberto, they went to 124th Street near Park Avenue to search for another weapon where, later, a .38-caliber revolver was found.

 Witnesses called by the state at trial included Nick Santo and Thomas Galucci. Santo testified that in the early part of February 1982 and perhaps on the evening of February 8, 1982, after petitioner's brother and Santo's son had been arrested for burglarizing a stereo store, petitioner had told Santo that there were guns in Santo's house and that he wanted to find them and get rid of them. Petitioner, Alberto and Santo's wife had searched Santo's house and found a sawed-off shotgun and two guns which were given to petitioner to dispose of. Galucci, who was a gun store owner, testified that the .9mm automatic pistol found in the station wagon and the .38-caliber revolver found on 124th Street were among weapons that had been stolen from his store during a robbery on January 7. Petitioner was convicted of criminal possession of the 12-gauge sawed-off shotgun, the .9mm automatic pistol and the .38-caliber revolver and criminal sale of the .38-caliber revolver.

 Petitioner appealed his conviction to the Appellate Division of the New York State Supreme Court on the following grounds: (1) there was insufficient evidence of possession of or intent to sell the .38-caliber revolver, petitioner's post-arrest statement having been "uncorroborated," and insufficient evidence of possession of the two guns found in the car, because, if not for certain erroneous evidentiary rulings, the jury would not have made the presumption provided by N.Y. Penal Law § 265.15(3) of possession of firearms found in automobiles; (2) petitioner's post-arrest statements were obtained in violation of his Fifth and Sixth Amendment rights because they were obtained in violation of the Miranda doctrine and due to the physical brutality and lengthy waiting period before arraignment inflicted upon him by the police; (3) three counts of the original indictment that had been originally dismissed were resubmitted to a new grand jury without a proper order under state law; (4) petitioner was denied a fair trial by the admission of evidence of uncharged crimes, the exclusion of certain medical records and expert testimony regarding petitioner's admission to hospitals on the day of his arrest and the following day which would have enabled him to attack the credibility of testimony as to his physical condition at the time of his post-arrest statements, the use of a "disfavored" jury instruction as to burden of proof, and improper summation remarks by the prosecutrix; and (5) petitioner was improperly adjudicated a persistent felony offender, and his sentence was excessive. On February 27, 1986 the Appellate Division affirmed petitioner's conviction without opinion, People v. Camarano, 117 A.D.2d 1024, 499 N.Y.S.2d 565 (1st Dep't), and on April 7, 1986 the Court of Appeals of the State of New York denied leave to appeal. People v. Camarano, 67 N.Y.2d 940, 502 N.Y.S.2d 1032 (Hancock, Jr., J).

 Petitioner also filed four motions for collateral relief following his conviction. On March 8, 1985, prior to the Appellate Division's decision on his appeal, petitioner moved to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10(1)(g) & (h), claiming that "newly discovered" medical records, which had been withheld by the District Attorney's office in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), reflecting his physical condition at the time of his alleged post-arrest statements showed that "perjured testimony" had been given against him and that he never made such statements at all or, even if it were assumed he had, they were involuntary. He also argued that new evidence showed one of the firearms had not been obtained from a gun store burglary and argued that the resubmission of charges to a new grand jury had been in violation of state law. On May 16, 1985 Justice Galligan denied the motion because petitioner made no showing that the evidence concerning his medical condition or the firearm could not have been produced prior to trial. Moreover, the medical evidence bore "at most only on an issue tangential to that of guilt or innocence," petitioner failed to show in what way the firearm evidence would have affected the jury verdict, and petitioner's allegations were insufficient to warrant any further inquiry. People v. Camarano, Indictment No. 4583/82, slip op. at 2-3. I can find no record of petitioner's having sought leave to appeal this decision to the Appellate Division.

 On June 17, 1986 petitioner filed a second motion pursuant to § 440.10(1)(g) & (h), claiming again that "newly discovered" medical records showing the extent of his injuries after arrest, which had been withheld by the District Attorney's office with the complicity of Harlem and Beekman Hospitals in covering up police brutality and manipulating patient records and which he now attached to his motion, required a new trial and that his rights were violated by excessive delay prior to arraignment and by admission of his "involuntary" statements at trial which were, he contended, never even made at all. On September 11, 1986 Justice Galligan denied this motion, ruling (1) that the issues raised had already been raised and determined in petitioner's direct appeal of his conviction and in his prior § 440.10 motion and thus, under N.Y. Crim. Proc. Law §§ 440.10(2)(a) & (3)(b), could not be raised again; (2) that, in any event, the information contained in his medical records existed at the time of trial and petitioner had had a fair opportunity to litigate those issues at trial; and (3) the "new" evidence "contains nothing which could have created even a remote probability that had it been received at trial (assuming arguendo its admissibility) it could have resulted in a verdict more favorable to defendant." With respect to petitioner's other arguments, they could have but had not been raised on appeal and thus were barred under N.Y. Crim. Proc. Law § 440.10(2)(c), and, in any event, "they wholly lack in substance." People v. Camarano, Indictment No. 4583/82, slip op. at 2-3. On January 6, 1987 petitioner was denied leave to appeal this decision to the Appellate Division.

 On March 2, 1989 petitioner applied for a writ of error coram nobis in the Appellate Division, claiming then and in supplemental submissions on June 26, 1989 and October 16, 1989 that his appellate counsel denied him effective assistance by not having raised numerous claims on his appeal. He also argued that his trial counsel had rendered ineffective assistance, and, in addition to ineffective assistance of counsel claims, argued numerous substantive issues, including some of those raised on direct appeal and in his § 440.10 motions, as well as additional ones. On March 27, 1990 the Appellate Division denied petitioner's application without opinion. People v. Camarano, 1990 N.Y. App. Div. LEXIS 3556 (1st Dep't).

 On March 14, 1991 petitioner filed a third § 440.10 motion, contending that the trial court had not had jurisdiction over the action or over his person. He argued this was so because the indictment contained a nonwaivable jurisdictional defect with respect to N.Y. Penal Law § 265.11(2) (criminal sale of a firearm in the second degree) in that it charged that he had "possessed a firearm...with the intent to sell said firearm to another," but had not included the statutory language that he was "not authorized" to possess the firearm. He contended that because the indictment omitted this essential element of the offense, the state was never required to prove that he was not authorized to possess a firearm, evidence was not adduced that he was not authorized, the burden of proof was shifted to the defense to show that he fell within one of the exemptions for possession under the statute, and he was thus found guilty without the state's having proved every element of the crime. On June 6, 1991 Justice Galligan denied the motion, ruling that the indictment had given petitioner notice of the charges against him and, moreover, that authorization to possess a weapon is in the nature of a defense and need not be alleged in the indictment. People v. Camarano, Indictment No. 4583/82, slip op. at 3. On November 14, 1991 petitioner was denied leave to appeal this decision to the Appellate Division. People v. Camarano, 1991 N.Y. App. Div. LEXIS 14734 (1st Dep't).

 In May 1990 petitioner filed this petition in the United States District Court for the Western District of New York. Following its transfer to this court, on October 23, 1990 then Chief Judge Charles L. Brieant dismissed the petition without prejudice because petitioner had failed to allege that grounds denominated as VI, VIII, IX, X and XIII were exhausted. In a letter to the court petitioner withdrew grounds X and XIII but set forth allegations concerning exhaustion of the other three grounds. In an order of March 6, 1991 Judge Brieant restored the petition to the active calendar, stating, "Construed liberally, petitioner's allegations in his letter appear sufficient to justify a preliminary finding that he has demonstrated exhaustion of state remedies for grounds VI, VIII and IX".

 The petition, which incorporates a 95-page memorandum of law supplemented by a 22-page "expansion of the record" asserting additional claims as well as numerous exhibits, nominally sets forth 14 grounds for relief. However, at least half set forth two or more discrete claims, and additional claims are contained throughout the body of petitioner's discussion. Liberally construing the petition so as to address all the claims petitioner appears to seek to set forth, the following alleged grounds for review are presented: *fn1"

 I[1]. Petitioner was arrested without probable cause in violation of the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

 I[2]. The prosecution improperly superseded the original felony complaint with another complaint in violation of the Fifth, Sixth and Fourteenth Amendments.

 I[3]. The superseding complaint contained perjury in violation of the Fifth, Sixth and Fourteenth Amendments.

 II. Statements by petitioner to the police were taken during a 72-hour delay between his arrest and his arraignment in violation of the Fifth, Sixth and Fourteenth Amendments.

 III. N.Y. Penal Law § 265.11(2) is unconstitutional under the Fifth, Sixth and Fourteenth Amendments because it states no crime in that it "establishes no elements," is "vague, ambiguous and overbroad" and impermissibly shifts the burden of proof to the defendant.

 IV. The indictment was defective because, with respect to N.Y. Penal Law § 265.11(2), it failed to name the person to whom petitioner allegedly intended to sell a firearm and thus failed to include all the elements of the crime in violation of the Fifth, Sixth and Fourteenth Amendments.

 V[1]. There was insufficient evidence of petitioner's actual or constructive possession of any firearm in violation of the Fifth and Fourteenth Amendments.

 V[2]. The application in petitioner's case of N.Y. Penal Law § 265.15(3)'s presumption of possession by persons occupying an automobile of a firearm found in it created an impermissible mandatory presumption, shifting the burden of proof to petitioner, in violation of the Fifth and Fourteenth Amendments.

 VI[1]. The indictment returned by the second grand jury was jurisdictionally defective because it was obtained without a court order in violation of the Fifth, Sixth and Fourteenth Amendments.

 VI[2]. 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[1]. 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 ...

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