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November 10, 1995

WINSTON MOSELEY, Petitioner, against CHARLES J. SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.

The opinion of the court was delivered by: BLOCK

 BLOCK, District Judge:

 This case involves one of the most infamous and brutal murders committed this century, which shocked the nation when it was committed in 1964, and continues to trouble the public today. As recently reported by the New York Law Journal, the 1964 murder of Katherine "Kitty" Genovese ("Genovese") in Queens, New York "symbolized urban apathy [since] 38 people heard her screams but did nothing." N.Y. L.J., July 25, 1995, at 1, col. 1. This Court is now called upon to decide whether it should grant the plea for freedom requested almost 25 years later by Genovese's confessed murderer, Winston Moseley ("Moseley"), pursuant to his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

 The focus of this proceeding is on a disclosure made during the sentencing phase of Moseley's trial by his lead lawyer, Sidney Sparrow, Esq. ("Sparrow"), that he had previously represented Genovese, and his rather startling admission that, as a result, he "didn't try this case . . . objectively, calmly, just as a lawyer defending a client [should]." Record on Appeal to New York Court of Appeals ("Record") at 484-85. This disclosure and admission compelled the Court to conduct a hearing on July 24, 1995 to inquire into the nature, duration, breadth and bounds of this prior representation for the purpose of determining whether Sparrow labored under a Constitutionally impermissible conflict of interest that adversely affected his representation. *fn1" The Court addresses this issue, which it decides against Moseley, only after determining that neither the passage of time nor other procedural grounds bar Moseley's claim, and that the "automatic reversal rule," applicable to a trial court's failure to inquire into a possible conflict, post-dates both the time Moseley's trial concluded in June 1964 and his conviction became final in June 1967.



 A. The Confessed Murder

 At his trial, Moseley took the stand in support of an insanity defense and confessed to killing Genovese. According to his testimony, he left his house in the early morning hours of Friday the 13th, March 1964, with a hunting knife for the purpose of "finding a woman and killing her." Record at 233. At approximately 3:00 a.m., he spotted a red car, driven by Genovese, which he followed for approximately ten blocks. Id. at 235. Both Genovese and Moseley got out of their respective cars, and upon seeing Moseley, Genovese started to run. Id. at 236. Moseley caught her and, as he stated, "stabbed her twice in the back." Id. Because someone had called out from an open window, Moseley returned to his car and moved it, but he "could see that [Genovese] had gotten up and that she wasn't dead." Id. Since he "did not think that the person that called would come down to help [Genovese] regardless [of] the fact that she had screamed, [he] came back and . . . look[ed for her] in[] the Long Island Railroad station." Id. Not finding her there, Moseley looked in some nearby apartment buildings, where he found her in a hallway. Id. As he testified: "As soon as she saw me, she started screaming[,] so I stabbed her a few other times to stop her from screaming, and I had stabbed her once in the neck. . . . She only moaned after that." Id.

 During the commission of this brutal attack, Moseley could hear that he had awakened residents of the apartment building. He heard a door open "at least twice, maybe three times, but when [he] looked up . . ., there was nobody up there." Id. at 238. Since he "didn't feel that these people were coming down the stairs anyway," id., he decided to rape Genovese. He removed her undergarments and, upon discovering that she was menstruating, took "the knife and stuck it in her vaginal tract." Id. at 239. He said that he "would have pulled the knife straight up, but the bone [had] stopped [him] from being able to do that." Id. Thereafter, Moseley attempted to rape her, but could not because of impotence. Id. He nevertheless had an orgasm. Id. After stealing her wallet, keys and some cosmetics, Moseley left Genovese dead. Id.

 B. Arrest Through Appeal

 Five days later, when Moseley was arrested for an unrelated burglary, he confessed to all of the above and also to murdering two other women, raping a third, attempting to rape yet another, and numerous burglaries. Moseley was indicted on March 23, 1964 for first-degree murder under former N.Y. Penal Law § 1045 for killing Genovese. Two days later, Justice J. Irwin Shapiro assigned Sparrow as lead counsel to represent Moseley at trial, along with two co-counsel, Julius Lipitz, Esq. ("Lipitz") and Martha Zelman, Esq.

 Given Moseley's confession, the strategy at trial, which commenced on June 8, 1964, was to rely on the insanity defense. In addition to his testimony admitting killing Genovese, Moseley also repeated his confessions to the other murders, the rape, the attempted rape, and the burglaries. He expressed no regret or sorrow. Two noted psychiatrists testified for the defense, opining that Moseley could not distinguish right from wrong. Sparrow cross-examined the prosecution's psychiatrist on the ground that he had not personally examined Moseley. Ultimately, however, the jury rejected the insanity defense and rendered a guilty verdict.

 On June 15, 1964, pursuant to former N.Y. Penal Law § 1045-a, a separate sentencing proceeding commenced before the same jury to determine whether the trial court should impose the death penalty. See People v. Moseley, 20 N.Y.2d 64, 66, 228 N.E.2d 765, 766, 281 N.Y.S.2d 762, 764 (1967). In his final argument to the jury, Sparrow told the jury (in Moseley's presence): "I didn't try this case involving Kitty Genovese objectively, calmly, just as a lawyer defending a client, because I knew Kitty Genovese, and represented her for years." Record at 484-85. Justice Shapiro immediately interrupted Sparrow and forbade him from continuing with this argument, stating that "we don't know anything about that; that's not in the record," id. at 485, whereupon Sparrow concluded without further comment on the issue.

 On July 6, 1964, after the jury recommended that the court sentence Moseley to death, Justice Shapiro imposed that sentence. Moseley, 20 N.Y.2d at 66, 228 N.E.2d at 766, 281 N.Y.S.2d at 764. Sparrow moved to set aside the conviction and sentence, which motion was denied. Thereafter, Sparrow appealed directly to the New York State Court of Appeals pursuant to former N.Y. Crim. Proc. Law § 517(1). On June 1, 1967, the Court of Appeals affirmed the conviction, but set aside the sentence because the trial court had barred Sparrow from recalling two psychiatrists to testify on Moseley's behalf during the sentencing phase. 20 N.Y.2d at 70, 228 N.E.2d at 768, 281 N.Y.S.2d at 767. On remand, Moseley was sentenced to life imprisonment, in conformity with the Court of Appeals' directive. *fn2" Id.; see also former N.Y. Penal Law § 1045-a(6) (requiring automatic sentence of life imprisonment where the Court of Appeals remands after finding substantial error in the sentencing proceeding).

 C. Post-Appeal Proceeding

 On February 1, 1989, Moseley, proceeding pro se, moved under N.Y. Crim. Proc. Law § 440.10 to set aside his conviction on the ground that Sparrow's prior representation of Genovese created an actual conflict of interest that violated his Sixth Amendment right to effective assistance of counsel. This marked the first time Moseley raised this ineffective assistance of counsel claim. Moseley submitted with his § 440.10 motion a letter sent to him by a newspaper columnist at Newsday in which the columnist discussed Sparrow's prior representation of Genovese and the possibility of challenging the conviction on that ground. The letter was dated May 23, 1979, nearly ten years prior to his motion.



 Moseley again claims that Sparrow's prior representation of Genovese created a Constitutionally impermissible conflict of interest resulting in ineffective assistance. He also argues that the trial court's failure to conduct an inquiry regarding this purported conflict mandates automatic reversal of his conviction. Respondent, on the other hand, argues that Moseley is barred on procedural grounds from raising these claims in federal court. Respondent also argues that, if the Court determines that Moseley is not so barred, he has failed to establish that Sparrow rendered Constitutionally infirm assistance or that the trial court erred in failing to conduct a conflict inquiry. For the reasons that follow, the Court holds that Moseley is not barred on procedural grounds from raising his claims in this tribunal, but concludes, after carefully considering all of the evidence adduced at the hearing, reviewing the record of the state court proceedings and analyzing applicable caselaw, that he has failed to establish entitlement to habeas relief.

 A. Moseley's Claims Are Not Barred On Procedural Grounds

 Respondent erects two procedural barriers which he argues preclude review of Moseley's claims in this court. First, he argues that because Justice Thomas' decision denying Moseley's post-judgment motion rested in part on a state procedural rule -- the barring of review by post-judgment motion of claims that could have been raised on direct appeal -- the adequate and independent state ground doctrine mandates that this Court defer to and accept as conclusive Justice Thomas' ruling. Second, respondent argues that Moseley's unjustified delay in bringing this petition has prejudiced respondent, requiring dismissal pursuant to Rule 9(a) of the Rules Governing § 2254 Proceedings. 28 U.S.C. § 2254 (1994).

1. Justice Thomas' Decision Does Not Bar Review In This Court

 In denying Moseley's motion to vacate his conviction, Justice Thomas relied in part on N.Y. Crim. Proc. Law § 440.10(2)(c) for the proposition that claims forsaken on direct appeal cannot be resurrected in a post-judgment 440.10 motion. Section 440.10(2)(c) provides in pertinent part:

The court must deny a motion to vacate a judgment when . . ., although sufficient facts appear on the record . . . to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustified failure to raise such ground or issue upon an appeal actually perfected by him.

 Id. (emphasis added). Justice Thomas concluded that because "the record reveals sufficient facts to have allowed the defendant to raise this issue on appeal and for the Court of Appeals to review and evaluate how the defense was conducted in light of counsel's prior representation of the victim," he was bound to dismiss Moseley's motion to vacate. Thomas Decision at 4-5.

 Respondent asserts that because Justice Thomas "expressly invoked [§ 440.10(2)(c) as] a procedural bar to [Moseley's] ineffective assistance of counsel claim . . ., this holding constitute[s] an independent and adequate state procedural ground supporting the state court's determination." *fn3" The adequate and independent state ground doctrine, as articulated by the Supreme Court in Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991), provides that a federal habeas corpus court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Id. at 729. Claims barred under this doctrine can be reviewed only if the petitioner establishes cause for the default and resulting prejudice, see Bossett v. Walker, 41 F.3d 825 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 316, 115 S. Ct. 1436 (1995), or if the failure to review would result in a fundamental miscarriage of justice. Murray v. Carrier, 477 U.S. 478, 495, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).

 Although courts frequently struggle with the question of whether a state court decision is "independent of the federal claim," Coleman, 501 U.S. at 732, the issue squarely presented here is whether Justice Thomas' reliance on § 440.10(2)(c) as a bar is "adequate" to support his decision. In examining this issue, the Second Circuit's opinion in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), is instructive. In Billy-Eko, the Second Circuit established rules for determining whether a federal habeas corpus petitioner -- a petitioner seeking habeas corpus review under 28 U.S.C. § 2255 for a conviction in federal court, rather than the habeas corpus review sought by Moseley under 28 U.S.C. § 2254 for his state court conviction -- is procedurally barred due to the failure to raise an ineffective assistance of counsel claim on direct appeal. The court held that a petitioner is not barred where represented by the same counsel on appeal as at trial or evidence concerning the ineffectiveness claim exists outside of the trial record. 8 F.3d at 114-15; see also Ciak v. United States, 59 F.3d 296, 303 (2d Cir. 1995) ("In Billy-Eko we held that the procedural default rules . . . do not apply to ineffective assistance of counsel claims where a petitioner was represented by the same attorney at trial and on direct appeal or where such claims depend on 'matters outside of the record on direct appeal'"). The Billy-Eko court based its decision on common-sense notions:

In many instances, an accused will be represented by the same counsel at trial and during direct appeal. In such cases, it would be unrealistic to expect that trial counsel would be eager to pursue an ineffective assistance claim. Moreover, even the scrupulous attorney searching the record in good faith would likely be blind to his derelictions at the trial level.
. . . .
In addition, ineffective assistance claims are often based on assertions that trial counsel made errors of omission, errors that are difficult to perceive from the record: for example, neglecting to call certain witnesses or introduce certain evidence. The claims might also be based on a conflict of interest not apparent at trial. . . . Even if a new attorney represents the accused on direct appeal, she might not come across reasons to suspect ineffective assistance in preparing a direct appeal.

 8 F.3d at 114 (emphasis added; citations omitted). Cf. Wood v. Georgia, 450 U.S. 261, 265 n.5, 67 L. Ed. 2d 220, 101 S. Ct. 1097 (1981) ("The party who argued the appeal and prepared the petition for certiorari was the lawyer on whom the conflict-of-interest charge focused. It is unlikely that he would concede that he had continued improperly to act as counsel").

 Logic dictates that no different result should occur. Nevertheless, because the adequate and independent state ground doctrine "is grounded in concerns of comity and federalism," Coleman, 501 U.S. at 730, federal courts give great deference to state court decisions. As a result, federal courts will find as "adequate" the application of a particular state's procedural rule "unless the procedural rule is [not] 'strictly or regularly followed.'" Wedra v. Lefevre, 988 F.2d 334, 339-40 (2d Cir. 1993) (quoting Johnson v. Mississippi, 486 U.S. 578, 587, 100 L. Ed. 2d 575, 108 S. Ct. 1981 (1988)); see also Amos v. Scott, 61 F.3d 333, 339 (5th Cir. 1995) ("The test for the adequacy of a [state procedural] rule is that it is strictly or regularly followed by the cognizant state court") (citing Johnson, 486 U.S. at 587; Dugger v. Adams, 489 U.S. 401, 410 n.6, 103 L. Ed. 2d 435, 109 S. Ct. 1211 (1989); Hathorn v. Lovorn, 457 U.S. 255, 263, 72 L. Ed. 2d 824, 102 S. Ct. 2421 (1982)); Oxford v. Delo, 59 F.3d 741, 744 (8th Cir. 1995) ("Federal review is not barred where a state procedural rule is inconsistently enforced or the state court undertakes a novel application of the rule"); Upshaw v. Singletary, 54 F.3d 718, 720-21 (11th ...

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