MEMORANDUM AND ORDER
WEXLER, District Judge.
Pro se petitioner Oscar A. Arroyo ("Arroyo") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent opposes the petition.
Arroyo was indicted for criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first and third degrees, arising from the sale of over two ounces of cocaine to an undercover police office, Knorland Carroll ("Carroll"), on April 28, 1976. By judgment rendered May 20, 1977, after a jury trial, Arroyo was convicted of criminal sale of a controlled substance in the first degree and sentenced to an indeterminate term of imprisonment of twenty years to life.
On May 14, 1979, the Appellate Division, Second Division, affirmed Arroyo's conviction. People v. Arroyo, 70 A.D.2d 787 (2d Dep't 1979). The New York Court of Appeals denied leave to appeal on June 22, 1979. People v. Arroyo, 47 N.Y.2d 1013 (1979).
Arroyo filed a federal habeas corpus petition in the Eastern District of New York in 1979, asserting five claims (the "first petition"). By Memorandum and Order dated April 17, 1980, familiarity with which is assumed, then-District Judge George Pratt determined that Arroyo failed to exhaust state remedies as to two of his claims and that the remaining three claims were without merit. The two unexhausted claims were (1) that the prosecution's failure to disclose exculpatory evidence violated his right to due process, and (2) that the prosecution failed to prove all elements of the crime beyond a reasonable doubt as required by the constitution. Accordingly, Judge Pratt dismissed the first petition without prejudice as to the unexhausted claims and dismissed the remaining three claims with prejudice. Judge Pratt later denied Arroyo's motion to reargue and his request for a certificate of probable cause to appeal. The Second Circuit also denied a certificate of probable cause to appeal.
Beginning in July 1977, Arroyo filed the first of nine motions to vacate his judgment of conviction in the state court pursuant to § 440.10 of the New York Criminal Procedure Law. All of these motions were denied, the last one on September 20, 1994.
In the meantime, in March 1984, Arroyo moved, pro se, in the Appellate Division to reargue his appeal on the ground that his appellate counsel was ineffective for failing to raise, inter alia, the following claims: (1) prejudicial matter discussed at a bench conference was overheard by the jury; (2) the prosecutor improperly elicited testimony concerning Arroyo's commission of uncharged crimes; and (3) ineffective assistance of trial counsel. On September 9, 1985, the Appellate Division denied the motion. Arroyo subsequently moved for a writ of coram nobis in the Appellate Division in May 1988 based on alleged ineffective assistance of appellate counsel. On June 16, 1989, the Appellate Division denied the motion.
Arroyo then filed the present petition (the "second petition"), which was randomly assigned to the undersigned.
In the second petition, Arroyo claims denial of his constitutional rights based on: (1) the trial court's failure to prevent the jury from overhearing prejudicial matter emanating from a bench conference; (2) prosecutorial misconduct by the prosecutor's introduction of inadmissible evidence, namely, evidence of uncharged crimes that resulted in an earlier mistrial; and (3) ineffective assistance of trial counsel. None of these claims were raised in Arroyo's first petition. However, Arroyo raised each of these claims in his § 440.10 motions, although each was held procedurally barred and, alternatively, found to be without merit. He also raised each of these claims in his motion for a writ of coram nobis as claims his appellate counsel failed to raise on direct appeal, allegedly demonstrating ineffective assistance of appellate counsel.
Respondent argues that this Court should dismiss the petition for abuse of the writ. Alternatively, respondent argues that Arroyo's claims are procedurally barred and, in any event, without merit.
A federal court may dismiss a writ of habeas corpus if it is a "second or successive petition . . . that . . . fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." Rule 9(b) of the Rules Governing § 2254 Cases; see also 28 U.S.C. § 2244(b); Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963). The Supreme Court clarified the standard for determining what constitutes abuse of the writ in McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). In McClesky, the Supreme Court adopted the Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), "cause" and "prejudice" standard as the standard for determining whether there has been an abuse of the writ through inexcusable neglect. See McClesky, 499 U.S. at 490-96; see also Russo v. Mann, 785 F. Supp. 34, 37 (E.D.N.Y. 1992). In opposing a second or subsequent petition, the respondent "bears the burden of pleading abuse of the writ." McClesky, 499 U.S. at 494. The respondent meets this burden "if, with clarity and particularity, it notes petitioner's prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ." Id. If respondent meets its burden, the burden shifts to the petitioner to disprove abuse. Id. Petitioner can disprove abuse by showing "cause for failing to raise [the new or different claim] and prejudice therefrom." Id. "'Cause . . . requires a showing of some external impediment preventing counsel from constructing or raising the claim.'" Id. at 497 (quoting Murray v. Carrier, 477 U.S. 478, 492, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). The abuse-of-writ doctrine "examines petitioner's conduct": the question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process." Id. at 498. "The requirement of cause in the abuse-of-writ context is based on the principle that petitioner must conduct a reasonable and diligent investigation aimed at including all relevant claims and grounds for relief in the first federal habeas petition." Id. If the petitioner cannot show cause, petitioner's failure to raise the claim earlier might still be excused if the petitioner can show that a "fundamental miscarriage of justice" would result from the failure to entertain the claim. 499 U.S. at 494-95; see also Kuhlmann v. Wilson, 477 U.S. 436, 451-54, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986) (concluding that "'ends of justice' require federal courts to entertain [successive] petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence").
Respondent has met its burden of pleading abuse of the writ as to all three claims raised in the second petition. Arroyo does not attempt to show cause in his supporting papers and does not submit any reply papers in response to respondent's opposition. Despite Arroyo's failure to attempt to show cause, it appears clear from the record that he possessed, or by reasonable means could have obtained, a sufficient basis to allege in the first petition, filed over 15 years ago, his present claims. Moreover, even if Arroyo could show cause for failing to raise these claims in the first petition, he cannot show actual prejudice. See McClesky, 499 U.S. at 502; Russo, 785 F. Supp. at 37-38.
As for the first claim, Arroyo contends that the jury overheard a bench conference concerning the prosecutor's request that the witness on the stand, Phefilia Harkless ("Harkless"), be allowed to testify to certain statements that she overheard Arroyo make implicating him in prior drug dealing with an accomplice, Alberto Morales ("Morales"). Minutes of Trial ("Tr.") 155-58. The record does not support Arroyo's claim. The record demonstrates that before the bench conference began, defense counsel asked the trial court to excuse the jury because defense counsel's investigator told defense counsel that the bench conferences of the previous day were audible from the back of the courtroom. The trial court refused defense counsel's request, and the bench conference was held. The trial court ruled that the proffered testimony was inadmissible. Neither during nor after the bench conference did defense counsel complain or object that the jury overheard the prosecutor's remarks at the bench conference. Any claim that the jury heard or was prejudiced by statements made during the bench conference is entirely speculative. As there was no basis for the trial court to believe that the jury overheard the bench conference at issue, there was no obligation on the trial court to probe the jurors. Because this claim is without merit, Arroyo cannot show actual prejudice from the failure to entertain this claim.
As for the second claim, as the record shows, a first trial ended in a mistrial after Morales testified to Arroyo's commission of uncharged crimes, specifically, other drug transactions involving Arroyo. Tr. 45. Arroyo claims that the prosecution introduced that same evidence in the retrial. Arroyo primarily complains about Morales' testimony of a conversation between himself and Arroyo on April 25, 1976, three days before the transaction charged in the indictment, concerning a drug transaction on April 25, 1976. Morales' testimony included the following exchange:
[Prosecutor]: Mr. Morales, on or about April 25, 1976, did you have occasion to see the defendant?
[Morales]: April 25? Yes, I saw him.