station on Spur Drive in Central Islip. (S.34). He described the
gas station as a main building and small glass booth in the
middle of the island from which the gas is pumped. (S.35-37). At
approximately 11:45 p.m., Bailey was measuring the amount of
gasoline in the tanks when he noticed a black male riding a
ten-speed bike on the sidewalk approximately 150 to 200 feet
away. (S.37-38). The man, whom Bailey identified at trial as the
Rodolfo Taylor, (S.51-52), rode past the entrance "up to the
Shell emblem sign, looking behind him." (S.38). Taylor then
turned around and entered the station. Id. Bailey testified
that when he was within five or six feet of him, Taylor said
"Hey, what's up, dude?," and pulled out a knife with a brass rim
handle and five inch blade. (S.39, 77). When Bailey saw the knife
he ran across the street to an Exxon station and called the
police to report the robbery. (S.40, 41).
Bailey testified that from across the street he observed Taylor
inside the station's glass booth. (S.41). According to Bailey,
Taylor opened the cash drawer and removed a bundle of money.
Id. During the robbery, Bailey observed a white car pull into
the station. (S.43). Bailey saw Taylor walk between the building
and the gas tanks where he could not see him. Id. Bailey
momentarily lost sight of Taylor (S.43-44), but he reappeared,
approached Bailey and said "Stop, or I'll shoot." Id. Bailey
ran back to the Shell station and when he turned around he saw
Taylor on his bicycle heading north on Route 111. (S.45). When
Bailey checked the cash drawer, $50 in singles that had been
wrapped in a rubber band were missing. (S.47).
At trial, Bailey testified that the station had been well lit
on the night of the robbery. He described the station as having
"two poles with canopy lights  point[ing] down towards the
street, signs on the corner," "four canopy-type lights on the
island, and lights around the rim and on the inside of the
building." (S.47). Bailey also testified that the perpetrator had
been a little over 6'0" tall, in his early twenties, with hollow
checks, a "very short afro haircut, very close to the scalp," and
wearing a blue short sleeve shirt. (S.46, 74). Bailey also
testified that on July 3, 1984, he visited the Third Precinct to
view a two lineups in which he identified Taylor as the
individual who robbed the Shell station that night (S.50-51).
B. The Defendant's Case:
First, the defense called Jacqueline Davis, the driver of the
white car, who described the person she saw that night as a young
black male with a short afro and slim build. Although she claimed
that she only saw the robber for "just a second," she testified
that Taylor was not the man she had observed. (S.136, 130). Davis
also denied having seen a knife. (S.132) She admitted that her
son knew Taylor, but denied knowing him personally. (S.146).
Beverly Woods was called to testify that she had been with
petitioner from 11 a.m. to 7:45 p.m., on June 10, 1984, and that
at approximately 8 p.m., she accompanied him to the Taste of
Honey bar, where she remained with him until about midnight.
(S.172-175). When it was brought to her attention that petitioner
had been in police custody that day on an unrelated criminal
charge, Woods recanted her testimony. (S.199). Finally, Taylor
took the stand and testified on his own behalf that he had been
at the Taste of Honey bar on the night in question from 8 p.m.
until about 12:30 p.m. with another friend Debbie Dixon.
The trial court charged the jury as to robbery in the first
degree. The jury found Rodolfo Taylor guilty as charged.
Thereafter, both convictions were consolidated for purposes of
On appeal, Taylor was represented by new counsel.
Under 28 U.S.C. § 2254, a federal court may not review the
substantive merits of a writ, unless the petitioner has exhausted
his remedies in state court. 28 U.S.C. § 2254(b) (1988); Picard
v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438
(1971). Exhaustion is not a jurisdictional requirement. Velez v.
New York, 941 F. Supp. 300, 309 (1996), citing, Castille v.
544 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). It is
predicated on principles of federal-state comity by giving the
state the initial opportunity to pass upon and correct alleged
violations of its prisoner's federal constitutional rights. Id.
The Second Circuit has set forth a two pronged test to
determine whether an applicant for federal habeas corpus relief
has exhausted the state remedies available to him. First, the
grounds asserted must have been "fairly presented" to the state
courts. Levine v. Comm'r of Correctional Serv., 44 F.3d 121,
124 (2d Cir. 1995); Reid v. Senkowski, 961 F.2d 374, 376 (2d
Cir. 1992); Daye v. Att'y Gen., 696 F.2d 186, 190 n. 3 (2d Cir.
1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79
L.Ed.2d 184 (1984). A petitioner has "fairly presented" his
federal claims when he has set forth in the state courts all the
essential factual allegations and substantially the same legal
doctrines he asserts in the federal petition. Daye, 696 F.2d at
191-92. This may be done in a number of ways, including: 1)
citing specific provisions of the Constitution; 2) relying on
pertinent federal cases employing constitutional analysis or
state cases employing constitutional analysis in similar fact
situations; 3) asserting the claim in particular terms calling to
mind a specific right protected by the Constitution; or 4)
alleging a fact pattern which is well within the mainstream of
constitutional litigation. Daye, 696 F.2d at 194.
The second prong of the Second Circuit's exhaustion test
generally requires that the habeas petitioner utilize all
available avenues of appellate review within the state-court
system before proceeding to federal court. Bacchi v. Senkowski,
884 F. Supp. 724 (E.D.N.Y. 1995), citing, Daye, 696 F.2d at 190.
While this criterion typically requires a direct appeal to the
highest court of the state, Bossett v. Walker, 41 F.3d 825, 828
(2d Cir. 1994), it may also be satisfied where the applicant has
collaterally attacked the judgment of conviction within the state
courts and thereafter appealed the denial of this application to
the highest state court. See, Dorsey v. Irvin, 56 F.3d 425, 426
(2d Cir. 1995); Velez, 941 F. Supp. at 310; Bacchi, 884
F. Supp. at 730; Lloyd v. Walker, 771 F. Supp. 570, 574 (E.D.N Y
Petitioner appealed both of his convictions to the Appellate
Division, Second Department. On direct appeal, he raised the
following arguments: 1) that he was in custody and entitled to
counsel when he appeared in various lineups; 2) that the trial
court erroneously excluded evidence at the Wade/Dunaway
hearing; 3) the lineups were unduly suggestive and 4) the trial
court erred by entering a guilty verdict of robbery in the first
degree rather than robbery in the second degree. The Appellate
Division issued a written opinion affirming both convictions.
People v. Taylor, 133 A.D.2d 866, 520 N.Y.S.2d 419 (2d Dep't
1987). Petitioner then sought leave to appeal to the Court of
Appeals, which was denied. People v. Taylor, 70 N.Y.2d 960,
520 N.E.2d 562, 525 N.Y.S.2d 844 (1988).
Petitioner attempted to collaterally attack his convictions
pursuant to New York Criminal Procedure Law ("CPL") § 440.10
(McKinney's 1994) and raised the following grounds in support of
his motion: (i) that he was illegally seized by his parole
officer in violation of his fourth amendment rights and (ii) that
his trial counsel's assistance was ineffective because defense
counsel failed to investigate his parole officer's conduct and
his subsequent placement in the lineups.*fn6 On November 15,
1993, the trial court issued a written decision denying
petitioner's § 440 motion,*fn7 and on November 24, 1993,
petitioner appealed the denial of the § 440 motion to the
appellate division, but leave was denied.*fn8 Therefore, all six
of the claims which petitioner now raises have been exhausted.
Once the court is satisfied that a habeas petitioner has
exhausted his state remedies,
it does not necessarily follow however that the applicant's
substantive claims are amenable to federal review. A federal
court is generally precluded from reviewing any claim in a habeas
petition for which a "state court rests its judgment on an
adequate and independent state procedural bar," Jones v. Vacco,
126 F.3d 408, 414 (2d Cir. 1997), citing, Glenn v. Bartlett,
98 F.3d 721, 724 (2d Cir. 1996) (citations omitted), unless the
petitioner can "show cause for the default and prejudice
attributable thereto or demonstrate that failure to consider the
federal claim will result in a fundamental miscarriage of
justice." Bacchi, 884 F. Supp. at 731, citing, Harris v. Reed,
489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989)
(internal quotations omitted.); see also, Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Wedra v.
LeFevre, 988 F.2d 334, 338 (2d Cir. 1993).
"A state procedural bar arises through a failure to make a
timely appeal or through a failure to preserve a claim of appeal
by contemporaneous objection." Reid 961 F.2d at 377; see also,
Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir. 1989) cert.
denied, 495 U.S. 937, 110 S.Ct. 2185, 109 L.Ed.2d 513 (1990)
(under New York law, failure to raise a claim that could have
been raised on direct appeal constitutes a procedural default),
and "a federal court will not hold a claim procedurally barred
unless the last state court rendering a judgment in the case
clearly and expressly states that its judgment rests on a
state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109
S.Ct. 1038, 103 L.Ed.2d 308 (1989) (internal quotations omitted);
Rollins v. Leonardo, 938 F.2d 380 (2d Cir. 1991) (federal
habeas petitioner barred by procedural default where state
decision based on plain statement of procedural default under
state law); Lloyd v. Walker, 771 F. Supp. 570 (E.D.N.Y. 1991).
In cases in which numerous claims are asserted, the state court's
judgment must "unequivocally refer to a state procedural bar as
to each specific claim; for a state court's ambiguous invocation
of a procedural default does not bar federal habeas review."
Bacchi, 884 F. Supp. at 731, citing, Harris, 489 U.S. at 264,
109 S.Ct. 1038.
Petitioner procedurally defaulted in the state courts with
respect to his illegal arrest and ineffective assistance of
counsel claims since he failed to raise these claims on direct
appeal. Instead, he first raised these arguments on collateral
attack pursuant to CPL 440.10.*fn9 This court is not, however,
precluded from addressing the merits of these claims despite the
procedural default since the state trial court did not clearly
and expressly rest its denial of these claims on a procedural
bar. The trial court's § 440 decision reads in pertinent part:
In the supporting affidavit, the defendant claims
that he was deprived of the effective assistance of
counsel . . . based on the failure of defense counsel
to raise certain issues. The defendant questions the
propriety of the viewing of the Photo spread by
[Bailey], a subsequent lineup . . . and
the part played by his parole officer and two Suffolk
County detectives in placing him in the line-up.
Although a post-conviction motion pursuant to §
440.10 is an appropriate remedy in addressing the
effectiveness of counsel on matters de hors the
record . . . [h]ere we have a complete Wade hearing
with the actions of counsel appearing on the record.
Moreover, on appeal, the issues were raised in the
The trial court then concluded: