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October 15, 1997

EDDIE STEELE, Petitioner,
HANS G. WALTER, Superintendent, Auburn Correctional Facility, Respondent.

The opinion of the court was delivered by: HECKMAN


 This petition for habeas corpus relief under 28 U.S.C. § 2254 has been referred to the undersigned by Hon. Richard J. Arcara pursuant to 28 U.S.C. § 636(b)(1). Petitioner has moved to amend the petition to delete unexhausted claims, and respondent has moved to dismiss the petition. For the following reasons, petitioner's motion to amend is granted, and it is recommended that respondent's motion to dismiss be granted.


 Petitioner filed this action seeking federal court habeas corpus review of his state court judgment of conviction for murder in the second degree and criminal possession of a weapon in the second degree. Respondent Hans G. Walter is the Superintendent of the Auburn Correctional Facility, maintained by the New York State Department of Correctional Services ("DOCS"), where petitioner was incarcerated at the time he filed this action.

 The pertinent facts are as follows. On November 4, 1989, petitioner was indicted by the Erie County Grand Jury on one count of murder in the second degree under N.Y. Penal Law § 125.25(1), and one count of criminal possession of a weapon in the fourth degree under N.Y. Penal Law § 265.01(2). The indictment charged petitioner with causing the stabbing death of Robert Steele (no relation to petitioner). The stabbing occurred at approximately 1:30 a.m. on October 18, 1988, near the intersection of Virginia and Locust Streets in the City of Buffalo, New York. On December 5, 1988, Erie County Judge Timothy Drury assigned Frank Buffamonte, Esq., to represent petitioner at trial (State Court Records, Ex. A).

 Petitioner's trial commenced on July 18, 1989. After jury selection, the prosecution delivered to defense counsel material deemed responsive to defense counsel's pretrial request for witness statements under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866 (1961); see N.Y. Crim. Proc. Law ("N.Y.C.P.L.") § 240.45(1)(a). *fn1" Included in these materials was an interdepartmental communication signed by Buffalo Municipal Housing Authority ("BMHA") Officer Thomas Mulhern, which stated as follows:

We attempted to keep the scene clear. We also spoke with Jeanette Hines of Virginia Street who told us that the dead man had an argument with the man who lives at 103 Locust, a B/M Max Ridgeway, date of birth 7/6/57, about a half hour before we found the dead man.

 (T. 27). *fn2" Defense counsel objected on the basis that this statement should have been produced earlier in response to defendant's request for exculpatory material under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). The prosecutor argued that Ms. Hines' statement to the BMHA officer was not Brady material. The trial judge agreed with the prosecutor. The judge advised defense counsel that the material had been made available for use at trial, and that if he needed an adjournment to look into the matter further, she would grant it. No adjournment was requested (T. 26-29).

 At trial, Max Ridgeway testified that on October 18, 1988 he was with his "girlfriend" Juanita Nelson at her upstairs apartment on the corner of Virginia and Locust Streets. At about 1:30 a.m., Juanita went downstairs to answer a loud banging on the side door. It was the victim, Robert Steele. Max heard hollering, and went downstairs to see what was happening. He recognized Robert, but did not know him personally. Robert was drunk, and he was talking loudly. He had a large bottle of beer in a paper bag. He wanted to come in out of the rain. He also wanted to pay Juanita five dollars that he owed her. Max told Robert to leave because it was late and people were trying to sleep. He told Robert to come back at another time. Robert left, and Max went back inside (T. 82-87).

 Max and Juanita returned to the upstairs front room where they were watching television. Max was sitting on the couch next to an open window. He heard two men "arguing or talking" on the street (T. 88). He looked out of the window and saw Robert Steele talking to petitioner. Max had seen petitioner several times in the neighborhood. Petitioner was wearing overalls and a yellow hardhat, and he was carrying a reddish-colored hardhat (T. 87-90).

 Max testified that he heard petitioner ask Robert for a cigarette. Robert turned toward petitioner and approached him while reaching in his pocket for a cigarette. Max heard petitioner say, "I told you about fucking with me" (T. 91). Max saw petitioner hit Robert in the chest with "something in his right hand" (T. 92). Robert grabbed himself and backed up. He spun around, spilling foam out of his beer bottle. He made it across the street, and fell to the ground (T. 93). Max saw petitioner put the object in his pocket and walk down Virginia Street toward Lemon Street (T. 94).

 Max testified that Juanita asked him to help Robert, but he told Juanita he did not want to get involved. He did not call the police. He saw some people standing around Robert as he lay on the ground. The police arrived about a half-hour later (T. 97).

 On cross-examination, defense counsel questioned Max about a January, 1984 charge of attempted reckless endangerment (T. 154-57) and bail revocation proceedings in February, 1984 (T. 157). Defense counsel then questioned Max about a March 5, 1984 incident involving police officers Panicali and Lewis. The prosecutor objected on the ground that the March, 1984 matter had been dismissed and sealed by the court (T. 158-59). After dismissing the jury and hearing argument, the judge sustained the prosecutor's objection, stating as follows:

I believe that the District Attorney is correct and it would not be proper to ask about matters that were sealed and/or dismissed unless there was further investigation by [the] defense attorney indicating that they were dismissed . . . not on the merits, but for some other reason.

 (T. 162).

 The prosecution called a total of twelve witnesses during the course of the trial. Petitioner did not put on a defense. On July 25, 1989, the jury returned a verdict of guilty on both counts of the indictment (T. 420). On September 1, 1989, petitioner appeared before the trial judge for sentencing. Petitioner moved to set aside the verdict pursuant to N.Y.C.P.L. § 330.30. After hearing argument on the motion, the judge denied petitioner's motion (S. 8). *fn3" Petitioner was sentenced to an indefinite prison term of twenty years to life on the murder conviction, and a concurrent definite term of one year on weapons conviction (S. 13-15).

 Petitioner appealed, and Barbara Davies Eberl, Esq., from the Legal Aid Bureau of Buffalo was assigned as appellate counsel. Petitioner stated the following grounds for appeal:

1. The trial court improperly limited cross-examination of Max Ridgeway as to the underlying facts of his prior bad acts;
2. The prosecution failed to disclose the statement of Jeannette Hines as exculpatory evidence under Brady ;
3. The verdict was against the weight of the evidence; and,
4. The sentence was harsh and excessive.

 (See Petitioner's Appellate Brief dated August 15, 1990, State Court Records, Ex. B).

 On December 21, 1990, the Appellate Division, Fourth Department unanimously affirmed the conviction. People v. Steele, 168 A.D.2d 937, 565 N.Y.S.2d 339 (4th Dept. 1990). The appellate court expressly ruled on the merits of each of the grounds raised on appeal. Id. On April 19, 1991, petitioner's application for leave to appeal was denied by the New York Court of Appeals. People v. Steele, 77 N.Y.2d 967, 570 N.Y.S.2d 501, 573 N.E.2d 589 (1991).

 On May 8, 1995, petitioner made a motion pro se pursuant to N.Y.C.P.L. § 440.10 *fn4" to vacate the judgment of conviction on the ground of ineffective assistance of trial counsel. Petitioner claimed that his trial counsel was ineffective because he failed to request an adjournment in order to investigate the exculpatory nature of Jeannette Hines' statement to the BMHA police (see Petitioner's § 440.10 Motion, State Court Records, Ex. C). On June 21, 1995, Judge Wolfgang denied petitioner's motion. According to the trial judge, "the record contained sufficient acts to have permitted appellate review of counsel's handling of the issue . . .," and trial counsel's performance was not constitutionally deficient in any event (June 21, 1995 Memorandum and Order, State Court Records, Ex. C). On September 29, 1995, the Fourth Department denied petitioner's application for leave to appeal from Judge Wolfgang's June 21, 1995 order (State Court Records, Ex. C).

 On November 28, 1995, petitioner made an application pro se for a writ of error coram nobis, raising the same claim of ineffective assistance of trial counsel that he raised in his § 440.10 motion (State Court Records, Ex. D). Petitioner also raised the additional claim that his appellate counsel's assistance was constitutionally deficient because she failed to assert ineffective assistance of trial counsel as a ground for appeal ( id.). On February 2, 1996, the Fourth Department denied petitioner's application (id.).

 On January 27, 1997, petitioner filed this action seeking federal court habeas corpus review on the following grounds:

1. The trial court improperly limited Max Ridgeway's cross-examination;
2. The prosecution failed to disclose Brady material;
3. The verdict was against the weight of ...

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