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May 19, 1997

ROBERT SIMMONS, Petitioner, against BERT ROSS, Superintendent, Arthur Kill Correctional Facility, Respondent.

The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The petitioner, Robert Simmons, who is currently incarcerated at Arthur Kill Correctional Facility, has filed a petition for habeas corpus, pursuant to 28 U.S.C. ยง 2254, challenging his March 17, 1992 conviction for attempted robbery in the first degree.


 The relevant facts for this petition are as follows. At Simmons' trial, Luis Cardona, the alleged victim of the attempted robbery, identified Simmons as the man who on September 13, 1991, approached him and asked him for change of a five dollar bill. (Trial Court Transcript ("Tr.") at 68-69). Cardona further testified that when he told Simmons that he did not have change, Simmons pulled a .38 caliber gun from the waist band of his pants, and ordered Cardona not to walk away from him. (Tr. at 68-70). Cardona testified that he ran away, rounded up a few of his co-workers, chased Simmons, and pinned him down. (Tr. at 70-76). Soon thereafter, Simmons was apprehended by the police. (Tr. at 76-77). According to the testimony of one of the arresting officers, Simmons, upon his capture, stated that "If I had a gun why [] would I run." (Tr. at 174). Simmons made this statement before the officer told him that a gun had been involved in the crime.

 Romere Sierra, who worked for Cardona and was with him the night that Cardona was allegedly accosted, also testified at Simmons' trial. Sierra testified that he was waiting for Cardona in Cardona's car when the alleged incident occurred. (Tr. at 139). Sierra testified that Cardona returned to the car and told him that someone had attempted to rob him. (Id.). Sierra further testified that he then looked out the car window and saw a man standing near their car. (Tr. at 139-40). Sierra identified Simmons as the man he saw that night. (Tr. at 142).

 The jury also heard the testimony of Nestor Anavitate, another of Cardona's co-workers. Anavitate testified that after Simmons' arrest, Simmons had come to Cardona and Anivatate's job site. (Tr. at 158). In response to a question from the prosecutor about what he and Simmons had talked about, Anavitate said that he and Simmons had talked "about the case. His probation or something like that." (Tr. at 160.). The trial court struck the statement and told the jury to disregard it. (Id.). No curative instruction about this reference to Simmons' apparent criminal record was requested at that time. (Id.). Later in the trial, Simmons was asked by the court if he wished that a curative instruction concerning Anavitate's statement be given, but Simmons declined the court's offer. (Tr. at 186-87). Instead, Simmons sought a mistrial, which the Court denied. (Tr. at 187).

 During the trial, pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974), the court held a "Sandoval " hearing to determine which, if any, of Simmons' prior criminal convictions would be admissible should Simmons decide to take the stand in his own defense. (Tr. at 20-25). The court ruled that some but not all of Simmons' convictions would be admissible, and limited the degree to which the prosecution could refer to the details of the admissible convictions. (Tr. at 23-24). The defense did not object to the judge's Sandoval ruling. (Tr. at 25). Simmons did not testify at his trial.

 After his conviction on the charge of attempted robbery in the first degree, Simmons appealed to the Appellate Division, First Department. In his appeal, Simmons raised three issues: 1) that the court's refusal to charge the jury with a lesser included offense violated his right to due process; 2) that the court's Sandoval ruling denied him the right to a fair trial; and 3) that the prosecutor had improperly elicited information from Anavitate about Simmons' probation status. (Brief For Defendant-Appellant at i, attached as Exhibit A to Affidavit of Christy L. Reuter ("Reuter Aff.")).

 Prior to a decision being issued by the Appellate Division, Simmons petitioned that court for permission to file a supplemental pro se brief. In that brief, Simmons sought to raise three additional grounds on appeal: 1) that the jury's verdict was against the weight of the evidence; 2) that his guilt had not been proven beyond a reasonable doubt; and 3) that the judge's instructions to the jury deprived him of a fair trial. (Affidavit in Support of Motion to File a Supplemental Brief on Appeal at P6, attached at Exhibit C to Reuter Aff.).

 Prior to this supplemental brief being filed, Simmons wrote to his attorney, Dawn E. Scott, requesting that these additional arguments be included in his brief to the Appellate Division. (Simmons Letter, attached as Exhibit B to Petition). Scott responded in writing, setting forth the reasons that she believed that these arguments were without merit. (Dawn Scott Letter, attached as Appellant's Exhibit C to Petition). In her letter, Scott listed the specific pieces of evidence presented at trial that she believed would defeat Simmons' claim that the evidence against him was insufficient. This evidence included the two eyewitness identifications, Simmons' post-arrest statement to the police, and his flight and subsequent apprehension in the vicinity of the scene of the crime. (Id.).

 Simmons was denied leave to appeal to the New York Court of Appeals. People v. Simmons, 84 N.Y.2d 872, 618 N.Y.S.2d 18, 642 N.E.2d 337 (1994). Simmons then filed a writ of error coram nobis, claiming ineffective assistance of appellate counsel. (Notice of Motion, attached as Exhibit E to Reuter Aff.). He based this claim on Scott's decision not to raise a sufficiency of the evidence claim in her appellate brief. (Affidavit in Support of Motion for a Writ of Error Coram Nobis at P13, attached as Exhibit E to Reuter Aff.). The Appellate Division, First Department, denied this petition on March 14, 1995. People v. Simmons, No. 14347/91, (1st Dep't March 14, 1995).

 Simmons has raised four issues in his habeas petition. First, Simmons claims that his conviction was based on evidence legally insufficient to prove his guilt beyond a reasonable doubt. Second, Simmons alleges that he was denied effective assistance of appellate counsel. Third, Simmons alleges that the outcome of the Sandoval hearing conducted at his trial deprived him of his right to due process. Finally, Simmons argues that the testimony given by Anavitate about his probation status deprived him of a fair trial.


 In opposition to the petition, the respondent first argues that the entire petition must be dismissed because Simmons has failed to exhaust all currently available state court remedies. The respondent argues that Simmons failed to exhaust the available state court avenues for bringing his claim that the evidence presented at trial was insufficient to support his conviction. The existence of this unexhausted claim, argues the respondent, means that this is a "mixed petition," containing both exhausted and un-exhausted claims, which should be dismissed in its entirety. Rose v. Lundy, 455 U.S. 509, 510, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Levine v. Commissioner ...

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