The opinion of the court was delivered by: NICKERSON
NICKERSON, District Judge:
Petitioner George Ramirez, brought this proceeding under 28 U.S.C. § 2254 seeking a writ of habeas corpus.
In 1992 Ramirez was charged in a Kings County, New York indictment with Murder in the Second Degree, New York Penal Law § 125.25, Criminal Possession of a Weapon in the Second Degree, New York Penal Law § 265.03, and Criminal Possession of a Weapon in the Third Degree, New York Peal Law § 265.02 . He is now in Clinton Correctional Facility.
Ramirez's first trial before Supreme Court Justice Joel Goldberg resulted in a mistrial because the jury was unable to reach a verdict. He was found guilty at his second jury trial before Justice Goldberg of Manslaughter in the First Degree and Criminal Possession of a Weapon in the Second Degree.
On December 15, 1993, Justice Goldberg sentenced Ramirez to concurrent terms of imprisonment of eleven to twenty-two years for manslaughter and seven and one-half to fifteen years for possession of a weapon. On January 22, 1996, the Appellate Division affirmed. People v. Ramirez, 223 A.D.2d 656, 636 N.Y.S.2d 847 (2d Dep't 1996). The presiding Justice Cornelius J. O'Brien dissented. An application for leave to appeal to the Court of Appeal was denied on March 14, 1996. People v. Ramirez, 87 N.Y.2d 1023, 644 N.Y.S.2d 157 (1996).
The petition, filed in this Court by the Legal Aid Society on April 29, 1996, claims that petitioner was denied his due process right under the Fourteenth Amendment to a fundamentally fair trial because Justice Goldberg gave the jury an Allen charge, Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896), suggesting, based on the judge's speculation, that some jurors might be improperly basing their verdict on racial considerations. In affirming the majority in the Appellate Division stated that "while the charge in this case was unusually and unnecessarily lengthy, a review of the charge as a whole demonstrates that it was essentially neutral, directed at the jurors in general, and did not coerce them to reach a verdict or to achieve a specific result." 223 A.D.2d at 656, 636 N.Y.S.2d at 847-48.
Presiding Justice O'Brien dissented, stating that although the Allen charge instructed the jurors "not to give up their conscientiously held beliefs", it "coerced conformity among the jurors and shamed them into reaching a verdict." 223 A.D.2d at 659, 636 N.Y.S. 2d at 849.
The same prosecutor and defense attorney appeared in both trials. The prosecutor, Jeff Kern, is a white male. The defense attorney, Julie Clark, is a black female. The judge presumably was white. The record is not clear as to the racial composition of the jury. But the defense counsel's comments at the trial, not disputed by the judge or the prosecutor, indicate that at least one juror was Black and one Hispanic.
The evidence offered by the prosecutor showed the following. On August 16, 1992, at about 5:30 p.m., George Ortega saw two Hispanic men and one Black man, all unknown to him, having a conversation in front of 130 Third Avenue in Brooklyn, near the Wyckoff Projects. He heard two shots, and then saw one of the Hispanic men, a light skinned man with a small mustache, shoot the Black man, who also had a gun. The Hispanic man than ran towards Third Avenue and Wyckoff Street, past Ortega. He was holding a silver revolver in his hand, and wearing what "looked like a silver rain coat or windbreaker" with a hood and blue jeans.
The other Hispanic man, later identified as Hector Caraballo, was moving away toward the corner of a building. The Black man, later identified as Wilson Rodriguez, followed him and shot him repeatedly. Hector Caraballo then fell over a fence and collapsed in front of a building.
Ortega went to see the body of Caraballo, whom he had not seen with a gun earlier. Nor did Ortega see any gun nearby. During the entire incident, Ortega saw only two guns, the one Rodriguez held and the one the first Hispanic man held.
On the same afternoon Joseph Alicea was waiting for friends in front of 130 Third Avenue when he saw three men, Rodriguez and the two Hispanic men. Alicea recognized petitioner as one of the Hispanic men and identified him as wearing a hooded green jacket. Alicea saw a struggle between Rodriguez and petitioner, who pointed a silver revolver at Rodriguez and shot him several times. Alicea then ran toward Third Avenue, and looking back saw petitioner continue to shoot and then run toward Wyckoff Street while Rodriguez was lying on the ground in front of 130 Third Avenue. When Alicea reached the corner of Third Avenue and Wyckoff Street, he dialed 911 and reported the shooting. He then went back to 130 Third Avenue and saw Caraballo lying in the bushes.
When police arrived at the scene, Caraballo was dead, and Rodriguez had what appeared to be a bullet hole in his chest. The emergency medical service then treated Rodriguez at the scene, and took him to the hospital where he died.
Although the police remained at the scene for about five hours and made a preliminary search for weapons, they found none on Rodriguez or Caraballo and none in the area. Later that afternoon, detective Ward from the Crime Scene Unit found in Rodriguez's clothing ten nine-millimeter rounds, a black leather pouch, two hundred and three dollars and twenty-one cents in U.S. currency, a beeper, eighty glassine envelopes containing what appeared to be heroin, a yellow ring, and a gold chain. The Unit also recovered four nine-millimeter shell casings in front of 130 Third Avenue lying between the bodies of Rodriguez and Caraballo and a spent round from Caraballo's jacket.
On the same day detectives went to Methodist Hospital and spoke to petitioner, who was conscious, alert, and appeared to be scared. He had been shot once in the shoulder. He told the detectives that his wife gave him fifteen dollars and a shopping list, that he was going to the store to buy groceries, and that as he was leaving the store, two men tried to rob him and shot him. He said he could not provide a description of the two because it had been raining and "he really didn't see" them. While speaking to petitioner the detectives noticed next to the stretcher on which he was lying a pile of wet and bloody clothes, a green hooded jacket, a pair of jeans, a shirt, and sneakers. The detectives searched for the alleged fifteen dollars and a grocery list, but found neither.
Detectives checked the police computer network for reports of street crimes and found no reports of such crimes in the vicinity of 36th Street and Fourth Avenue, where the grocery store was located.
The next day detectives again talked to petitioner and asked how he got shot. Petitioner said he had lied in the previous interview but wished now to tell the truth. Petitioner then told the detectives that on the way to the grocery store he changed his mind and went to visit his friend Hector Caraballo. They were together until about 4:00 p.m., when they decided to visit two other friends. According to petitioner, as they walked past the Wyckoff projects, they saw three men standing outside the building. One of them said something in Spanish that sounded like "that's him" or "Yo, that's him." Caraballo then said, "I had a prior beef with them," and "Let's jet," meaning let's leave.
One of the three men, who had dark skin, pulled a gun from his waistband and began shooting at them. When petitioner "felt" that he had been shot, he turned and ran, and got a car service to take him to Methodist Hospital.
Petitioner also told the detectives that while he was in the hospital, his wife told him that Hector Caraballo had died. Detectives thereafter confirmed with a car service company that it had taken petitioner to the hospital.
On September 8, 1992, detectives arrested petitioner for the murder of Rodriguez. They advised him of his Miranda rights. He said he understood his rights and agreed to answer questions. He then made a statement, later reduced to a writing which he signed.
In the statement petitioner repeated the story he had given the day after the incident but added that he took the train to Caraballo's house after going to the store. He also stated that he and Caraballo met a friend of Caraballo's named Willie with whom Caraballo had a disagreement over some money, which Willie then refused to pay him. Because of this, Caraballo pulled out a gun and shot Willie.
Petitioner also said that when he and Caraballo went to look for petitioner's friend, there were two men standing in front of the building, not three as he had previously stated. Petitioner said he heard one of them say to the other, "Yo, that's him", and then, one of the two men, the tall, dark-skinned one, pulled out a gun and shot petitioner. This time petitioner stated that Caraballo also had a gun and got mad after petitioner was shot, and shot the dark-skinned man.
Later that day, Alicea identified petitioner in a line-up as someone he recognized from the day of the shooting. A ballistics expert testified that all the bullets recovered from the scene, including two from Caraballo's body and one from petitioner's body, were nine-millimeter bullets, that the four nine-millimeter discharged shells were all fired by the same gun, and four twenty-two-caliber bullets received from the morgue were fired from a different gun.
Petitioner offered no evidence at the trial.
The jury, having heard the judge's initial charge, retired to deliberate at 11:50 A.M. on November 22, 1993. At 2:20 P.M. the jury asked for the photographs of the line-up, petitioner's grand jury testimony, a diagram of the street in question, and also asked to hear a 911 tape. After receiving the exhibits and listening to the tape the jury retired to continue to deliberate at about 3:00 p.m.
The jury asked at 3:45 for the medical, examiner's diagram and for a read back of Alicea's testimony. After the reading the jury retired at 4:35 P.M. At 6:15 P.M. the judge sent them out for dinner and the night at a hotel.
On November 23, 1993 the jury returned to deliberate at 9:30 A.M. In about an hour they asked to hear certain direct testimony of Ortega and for petitioner's written statement. At 11:10 they heard the read-back and retired to deliberate. At 11:50 the jury asked to hear further testimony by Ortega concerning his identification of what the "shooter" was wearing, and as to whether he could identify the shooter in court. They left the courtroom at 12:35 P.M.
Within ten minutes the jury sent a note reading: "We are a hung jury, we cannot agree." The judge gave a charge urging the jury to continue to deliberate, to listen to each other, to refrain from getting emotional, and to be fair and objective. At 1:05 P.M. the jury retired to deliberate.
At 3:05 P.M. the jury sent another note reading: "At this point we find it impossible to come to agreement. Any further deliberations we all felt are useless." After consulting with counsel the court gave a further charge, telling the jury they had not deliberated long enough and telling them not to be stubborn, to discuss the case rationally and "in an unemotional way."
The jury went out for dinner at 5:30 P.M. and returned to continue deliberating at 7:45 P.M. At 9:05 P.M. the jury sent another note saying that: "after discussing the case, with calm and open minds, we the jury could not come to an agreement at this time." The judge, telling the jury that he was "not satisfied that you can't reach a verdict on this case", sent them to a hotel for the night.
On the next day, November 24, 1993, the judge told the attorneys that in addition to the usual Allen charge he would tell the jury, among other things, that they should not let "personal feelings for or against the attorneys", or "feelings of sympathy for the victim or the defendant", or "any racial considerations that may be in the mind of any one of the jurors", influence their verdict.
Ms. Clark objected, saying that there was "nothing about race in the case", that neither attorney brought race into the case, and that the judge was "trying to speculate" as to what the jury was doing. The judge said, "I am speculating as to what the problem might be" with the jury, and said he had a duty to be of assistance in resolving the problem. When Ms. Clark asked the judge, "what does race have to ...