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WALKER v. MILLER

March 11, 1997

VINCENT WALKER, Petitioner, against DAVID MILLER, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Lawrence M. McKenna, United States District Judge:

 Petitioner Vincent Walker seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that: (1) his waiver of the right to counsel during interrogation by the police was not voluntary (Petition, dated 3/14/96, at pp. 1-4); (2) he was not proven guilty beyond a reasonable doubt at trial (Petition at pp. 5-12; (e) he received ineffective assistance of counsel by reason of his counsel's failure to: (a) call and/or investigate witnesses; (b) move to prevent the assistant district attorney from trying the case because the ADA was a witness to the videotaped confession; (c) effectively cross-examine witnesses; (d) pursue a Rosario violation; (e) present the facts as to an affirmative defense; (f) object and request curative and additional jury instructions; and (g) file a notice of appeal (Petition, unnumbered pages after p. 12).

 For the reasons set forth below, Walker's petition is a "mixed" petition containing both exhausted and unexhausted claims, and I therefore recommend that Walker's habeas petition be denied.

 PROCEDURAL BACKGROUND

 Proceedings in State Court

 On April 4, 1989, petitioner Walker was convicted of second degree murder in Supreme Court, New York County, and on May 7, 1990 was sentenced to fifteen years to life imprisonment. (Petition, PP 1-4.) See People v. Walker, 181 A.D.2d 636, 636, 582 N.Y.S.2d 108, 108 (1st Dep't 1992). The state at trial presented evidence that Walker and two accomplices robbed David Berquist, and that Walker was present when his accomplices stabbed and shot Berquist. (See, e.g., Appendix to State Br. (hereafter, "App.") at A1-3, A15-18, A29.)

 Walker appealed his conviction to the Appellate Division, First Department, on the sole ground that his pretrial statements should have been suppressed. People v. Walker, 181 A.D.2d at 636, 582 N.Y.S.2d at 108. (See also Petition P 9; App. A5-37.) By decision dated March 31, 1992, the First Department unanimously affirmed Walker's conviction, holding that Walker was not in custody when he made his first statement and that his first and subsequent statements to the police were admissible. People v. Walker, 181 A.D.2d at 636-37, 582 N.Y.S.2d at 108-09. The Court of Appeals denied leave to appeal. People v. Walker, 79 N.Y.2d 1055, 584 N.Y.S.2d 1023 (1992).

 Two years later, Walker moved to set aside his conviction pursuant to N.Y.C.P.L. § 440.10, *fn1" alleging that his trial counsel had rendered ineffective assistance. (App. A88-116.) Walker alleged that counsel did not adequately investigate the case or call his co-defendant Collozo to testify for him. (App. A91, A93-95, A103.) The bulk of his C.P.L. § 440.10 motion, including its "addendum," continued to challenge the voluntariness of his confession (and his attorney's alleged failure to adequately challenge the confession's validity). (See generally App. A88-133.) On May 7, 1995, Justice Schlesinger denied Walker's motion. (App. A141-45.) The state court found that defense "counsel's skillful cross-examination of police witnesses was precisely designed to raise issues" before the jury as to the truthfulness and voluntariness of Walker's statements to the police, and that defense "counsel had a trial strategy which was lucidly presented to the jury in summation." (App. A144.) The state court concluded that "there is no indication that counsel's representation was inadequate." (App. A145.) Walker's motion, pursuant to N.Y.C.P.L. § 460.15, for leave to appeal to the First Department was denied on September 21, 1995. (App. A146-60, A168.)

 Walker's Present Federal Habeas Petition

 Walker's present habeas petition raises three grounds for habeas relief. First, Walker asserts that his waiver of his right to counsel during his interrogation by the police was not voluntary, knowing or intelligent, and therefore that his statements to the police should not have been admitted at trial. (Petition at pp. 1-4.) Second, Walker alleges that he was not proven guilty beyond a reasonable doubt at trial. (Petition at pp. 5-12.) Third, Walker alleges that he received ineffective assistance of counsel by reason of his counsel's failure to: (a) call and/or investigate witnesses; (b) move to prevent the assistant district attorney from prosecuting the case because the ADA was a witness to his videotaped confession; (c) effectively cross-examine witnesses; (d) pursue a Rosario violation; (e) present the facts as to an affirmative defense; (f) object and request a curative and additional jury instructions; and (g) file a notice of appeal. (Petition at pages after p. 12.)

 ANALYSIS

 WALKER'S HABEAS PETITION SHOULD BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO EXHAUST STATE COURT REMEDIES AS TO MANY OF HIS CLAIMS

 Because (as discussed below) Walker has failed to exhaust his state court remedies with respect to most of the grounds of his federal habeas petition, I recommend that the Court dismiss his entire habeas petition without prejudice.

 A. Prior to the Antiterrorism and Effective Death Penalty Act, the Court Was Required to Dismiss "Mixed" Petitions Containing Both Exhausted and Unexhausted Claims

 This section discusses the law as to "mixed" petitions in effect prior to enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA").

 A federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b). *fn2" While pre-amendment Section 2254 did not directly address the problem of "mixed" habeas petitions, that is, those containing both exhausted and unexhausted claims, the Supreme Court adopted a rule of ...


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