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August 21, 1996

DARIL AMAKER, Petitioner, against PETER J. LACY, Superintendent, Bare Hill Correctional Facility, Respondent.

The opinion of the court was delivered by: TRAGER

 TRAGER, Judge:

 This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by Daril Amaker who is represented by counsel. Petitioner claims that he received ineffective assistance of counsel during his trial because inter alia his attorney did not object to the admission of a videotaped confession by his co-defendant which, the petitioner maintains, implicated him.


 (1) Procedural History

 Petitioner was tried in New York State Supreme Court, Kings County beginning July 29, 1991. He was convicted of manslaughter in the first degree and on September 4, 1991 sentenced to the maximum allowed by law -- a minimum of eight and one-third and a maximum of twenty-five years.

 Prior to perfecting his direct appeal, petitioner, represented by counsel, filed a N.Y. C.P.L. § 440.10 motion to vacate his judgment of conviction claiming that he had been denied the effective assistance of counsel in that: (1) counsel failed to move to sever defendant's trial from that of his co-defendant Logan whose videotaped statement was admitted at their joint trial; (2) counsel failed to assure that co-defendant Logan's videotaped statement was effectively redacted; (3) counsel failed to "protect defendant from impeachment with the co-defendant's statement"; and (4) counsel failed to object to the prosecutor's use during summation of co-defendant's videotaped statement. Resp. Ex. B. The Supreme Court, Kings County (Beldock, J.), summarily denied the § 440.10 motion, on April 13, 1993, finding that all his claims could be raised on his, as yet unperfected, direct appeal. C.P.L. § 440.10(2)(b); Resp. Ex. D; Mem. Decision and Order, dated April 13, 1993. The decision went on to note that even if the court were to consider the merits of his claim, it would fail. The court recalled that prior to trial petitioner's counsel moved to sever, and after discussion in court, he had withdrawn the motion. The court found this withdrawal to be "a legitimate trial strategy." Resp. Ex. D at 1. Petitioner's application for leave to appeal this denial was rejected by the Appellate Division, Second Department, on May 26, 1993. Donhauser Aff. P 11.

 Petitioner then directly appealed from his judgment of conviction to the Appellate Division, Second Department on two grounds. First, he maintained that he received ineffective assistance of counsel. Specifically, he raised the same four grounds that were raised on the § 440.10 motion. Second, he claimed that his alleged absence when the court questioned sworn jurors regarding their ability to continue serving on the jury deprived him of his right to be present at all material stages of his trial. Resp. Ex. E.

 After filing his brief in the Appellate Division, but prior to a decision on his direct appeal, petitioner, again represented by counsel, filed a second motion to vacate the judgment of conviction pursuant to C.P.L. § 440.10 motion. Resp. Ex. G. In this motion, dated October 22, 1993, petitioner claimed that at his trial the prosecution failed to disclose alleged Rosario material, specifically an autopsy audiotape, and therefore, that his conviction had to be vacated.

 Five days later, on March 15, 1994, the Supreme Court denied petitioner's second motion to vacate his judgment of conviction determining that the motion papers were insufficient to warrant any relief. Resp. Ex. I, Mem. Decision and Order, dated March 15, 1994 at 2. Petitioner then applied for leave to appeal this decision to the Appellate Division, which, on April 13, 1994, denied his application. *fn1" Donhauser Aff. P 17.

 On October 25, 1995, more than a year after the denial of leave of his direct appeal to the Court of Appeals, petitioner filed this habeas corpus petition claiming that he was denied effective assistance of counsel because his defense counsel failed to protect him adequately from the prosecutor's use of the alleged inculpatory confession of a non-testifying co-defendant. *fn2" This, petitioner maintains, violates Bruton v. United States, 391 U.S. 123, 136, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).

 Petitioner's brief on his direct appeal to the Appellate Division is almost identical to the brief presented here. However, one difference has arisen here that was not presented to the state courts. Upon listening to the videotape confession, petitioner realized that the redaction was allegedly ineffective as the co-defendant, Logan, mentions petitioner's nickname, "Snake", on the tape. The assistant district attorney, in the midst of questioning Logan, asked: "Who were you with [when you returned to the corner where the shooting began]?" And, Logan replied: "There's me, Snake, I can't really tell, there was a whole bunch of us."

 (2) Pre-Trial

 Amaker was arrested on April 3, 1990 and charged with a murder that occurred on March 31, 1990 in Kings County, New York. Pet'r Mem. at 1. He was indicted, along with Earl Logan and Cory Williams, for intentional murder in the second degree, reckless murder in the second degree, reckless endangerment in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. Id. ; Donhauser Aff. P 5. On June 11, 1990, Amaker's defense counsel, assigned to the case by the court, moved for a bill of particulars and discovery, inspection of the grand jury minutes, and for various pre-trial hearings including one "as to the admissibility of any pre-trial statements." Pet'r Mem. at 5. That motion did not include a request to sever defendant's trial from that of Earl Logan. No written motion to sever appears in the court file or on the record. There was, however, an oral motion by defense counsel to redact Logan's videotape.

 After the redaction process, defense counsel expressed to the court a fear that the detective who obtained co-defendant Logan's statement may inadvertently divulge redacted material during his testimony. Defense counsel noted that if co-defendant Logan's counsel elicited "any suggestions or innuendo or any answers come out indicating my client was present, I would be in the same situation I was if the statement were not redacted and I would ask for a mistrial and severance." Tr. at 169-70.

 (3) People's Case

 Later that evening, at the scene of the earlier argument, the Greene Avenue gang returned. Mitchell saw Amaker, the petitioner, co-defendants Logan and Williams and another individual down the street. Id. at 500. Mitchell testified that petitioner stepped from behind a car and started to fire a gun in the direction of where Mitchell's group was standing. Id. at 500-01. Mitchell was a block away from the shooter. Even though, he had never seen petitioner before that evening and he could not see his face from where he was standing, Mitchell claimed that he could identify the petitioner as the shooter because the coat the shooter was wearing was the same as the one slashed in the first altercation and because the shooter was the same height and weight as petitioner. Id. at 501, 516. Mitchell ran when the gunshots were fired and, as he did so, saw Richards fall over wounded. Id. at 503-04. Mitchell later identified petitioner in a lineup. Id. at 508.

 On cross-examination of Mitchell, petitioner's counsel brought out that immediately after the killing, Mitchell told the assistant district attorney investigating the homicide that he found Richards wounded only after he heard sirens. Id. at 527-28. Mitchell's explanation for the inconsistency was that he lied to the investigators at first because he feared being involved. Id. at 489, 528, 532.

 Hayward Johnson, also a member of the Greene Avenue gang, testified that he was with Mitchell and Richards as well on March 31, 1990. Id. at 332, 334. He saw petitioner shoot at the Greene Avenue gang. Id. at 347-48, 407. Johnson also saw Logan with a gun and Williams holding his hands out as if he were shooting. Id. at 349-50; 375. He also believed that more than one gun was being fired. Id. at 376. Johnson recognized Logan, Williams and Gargumel, another member of petitioner's Gates Avenue gang but did not know petitioner.

 Johnson admitted that he lied to the Grand Jury when he swore that only one person had a gun and that person was Earl Logan, id. at 409, and when he told the grand jury that the shooter was wearing a brown jacket. Id. at 410. In addition, during a lineup which included petitioner he did not identify petitioner as one of the shooters. His explanation for lying to the Grand Jury and prosecutors was that his gang originally had planned to "take care of" petitioner by themselves. Id. at 357.

 Arlander Jones, a member of petitioner's Gates Avenue gang and a friend of petitioner, also testified for the prosecution. Id. at 299-311. He was present when petitioner and King began fighting and petitioner's coat was slashed. Significantly, he testified that after the coat was slashed, they all ran away. Id. at 302. He also implied that there were more than four members of the Gates Avenue gang at the scene. Id. at 300-04. He was not present at the time of the shooting.

 Michael Richards, the brother of the victim, saw the argument from Gates Avenue. Id. at 38. He, too, recognized Logan and Williams out of a group of about ten to fifteen. He said he did not recognize the others. Id. at 39-40, 42, 59-60. He claimed that when the group returned, "Snake" (petitioner's nickname) was shooting a gun. Id. at 41. This is the only person that Michael Richards saw with a gun. Id. at 63, 104. However, when Richards was asked to point out "Snake" he pointed to and described Williams, a co-defendant who was acquitted.

 The court informed the jury that the tape had been redacted and that the jury did not need to be concerned with the "missing portions." It further instructed the jury that this was the statement of Earl Logan and that "such evidence is not applicable to nor is it binding upon any of the other defendants." Id. at 176-77.

 In the videotape, Logan described how he fought with the other group and then went to a party in which an individual named Black "gave us" guns. "All of us had guns who went back down there [referring to the intersection where the fight occurred]." See Videotape.

 On the videotape, the prosecutor first asked Logan if he was at the corner of Greene and Stuyvesant Avenues at the time of the shooting. When he responded affirmatively to that question, Logan then was asked by the district attorney who was at the crime scene. Logan answered: "Me, Snake, I can't really tell there was a whole bunch. . ." This reference to Snake was to be redacted, but evidently escaped notice by the court, prosecutor and defense counsel. In fact, only while reviewing the tape for the habeas petition, was this reference discovered.

 Logan's confession recalled how the two groups met for the second time that evening. The groups were at different ends of the street and each group did not see the other group. Thus, "we were getting ready to go home . . . and then 'he' had saw [sic] them, and that's when he started shooting." Videotape. The "he" in this statement was one of the redactions of Snake's name in Logan's videotape confession.

 Logan then stated numerous times that he himself did not "shoot at them," and said that he could bring witnesses in "to tell you I didn't do nothing." Videotape. He also claimed that Corey Williams was not at the scene until after the shooting occurred.

 Detective Parker then testified identifying the blue coat that was slashed with a knife and worn by petitioner when he came into the precinct on April 3. Tr. at 184.

 Finally, Esau Crosland, another member of the victim's Greene Avenue gang, witnessed the shooting and testified that there were normally about six guys in the petitioner's group. Id. at 253. He then described the argument between "Snake" and "King" which ended in the cutting of petitioner's jacket. Id. at 257.

 (4) Defense Case

 Petitioner testified in his own defense. Unlike all of the People's eyewitnesses, petitioner had never been convicted of a crime. He testified that on the night of this incident, he argued with King and King's gang. Tr. at 632, 636. He claimed that during that argument, Joseph Richards, the victim, grabbed petitioner as he tried to walk away and, consequently, petitioner pulled out a razor in order to escape. Id. at 634. As petitioner was running away, he heard gunshots. Id. at 635-36. Petitioner maintained that he did not have a gun that night, that there was only one interaction between him and King's gang, and that he did not shoot Joseph Richards. Id. 648, 657. Rather, he claimed that the shots were fired from King, the "bully" in the victim's Greene Avenue gang, and others in King's group. Id. at 698. Petitioner also stated: "I had an argument with a group of boys from Greene Avenue and I was stabbed under the coat. And, you know, they had tried to stab me. I got away, I ran home." Id. at 632. He acknowledged that Priest, Arlander, Gargamel and Jesse were with him. Id.

Q. Now, you watched the videotape of Priest [Logan's ...

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