The opinion of the court was delivered by: Baer, District Judge.
I referred this habeas corpus petition to Magistrate Judge Peck
on October 28, 1998. On March 19, 1999, Judge Peck issued a
Report and Recommendation which recommended that petitioner's
request for habeas relief be dismissed without prejudice as a
I have found no clear error in the Report and Recommendation.
Therefore, I adopt the Report and Recommendation in all respects
and direct the Clerk of the Court to close this case.
REPORT AND RECOMMENDATION
To the Honorable Harold Baer, Jr., United States District Judge:
Petitioner Richard Otero seeks a writ of habeas corpus alleging
four grounds for relief: (1) violation of his Fifth Amendment
privilege against self-incrimination when he was cross-examined
at trial about his failure to inform the police of his trial
explanation, and the trial court's instructions to the jury did
not cure the error (Am.Pet. ¶ 12(A)); (2) marshaling only
evidence helpful to the prosecution about the show-up
identification of Otero (Am.Pet. ¶ 12(B)); (3) ineffective
assistance of trial counsel (Am.Pet. ¶ 12(C)); and (4)
ineffective assistance of appellate counsel (Am.Pet. ¶ 12(C)).
For the reasons set forth below, because Otero has failed to
exhaust his ineffective assistance of trial counsel claim, I
recommend that Otero's habeas petition be dismissed without
prejudice as a mixed petition.
On March 24, 1993, petitioner Otero was convicted, after a jury
trial, in Supreme Court, New York County, of two counts of
attempted murder in the first degree, three counts of attempted
murder in the second degree, robbery, weapons possession and
related counts. (Am.Pet.¶¶ 1-4.) Otero was sentenced to 20 years
to life and a concurrent five to ten-year sentence. (Am.Pet. ¶ 3;
see also Answer ¶ 2 & n. *.)
Otero's direct appeal to the First Department raised the
following issues: (1) improper cross-examination of Otero and a
defense witness (Ex. A:*fn1 Otero 1st Dep't Br. at 26-35); (2)
erroneous jury instruction about the identification of Otero in
a show-up (id. at 35-38); (3) the second degree attempted murder
convictions were redundant of the first degree attempted murder
convictions (id. at 39); and (4) adoption of applicable arguments
made by co-defendant Carlos Rivera.*fn2 (Ex. A: Otero's 1st Dep't
Br. at 2, 3.) The First Department vacated the second degree
attempted murder convictions and otherwise affirmed. People v.
Otero, 225 A.D.2d 489, 489-90, 639 N.Y.S.2d 819, 820-21 (1st
Dept. 1996). The Court of Appeals denied leave to appeal. People
v. Otero, 88 N.Y.2d 968, 647 N.Y.S.2d 722, 670 N.E.2d 1354
Otero's First Federal Habeas Petition
Otero's original habeas petition, dated March 24, 1997 and
received by the Court's Pro Se Office on April 4, 1997 (Pet. at
pp. 2, 7), raised two claims: Otero's Fifth Amendment privilege
claim (Pet. ¶ 12(A)), and erroneous show-up jury charge (Pet. ¶
12(B)). By letter dated October 24, 1997, Otero requested that he
be allowed to withdraw his habeas corpus petition in order to
raise a claim of ineffective assistance of appellate counsel in
state court. (10/24/97 Otero letter; see also Answer ¶ 7.) By
order dated December 3, 1997, Magistrate Judge Bernikow advised
Otero that if he withdrew his petition, a later petition might be
time barred, but granted Otero's application to withdraw his
petition unless Otero informed the Court by December 26, 1997
that he did not wish to withdraw his petition. (See Dkt. No. 8:
Bernikow 12/3/97 Order; see also Answer ¶ 7.) Otero responded
that rather than withdraw his petition, he be allowed to amend it
to include an ineffective assistance of appellate counsel claim.
(12/9/97 & 12/31/97 Otero Letters.) By Order dated July 10, 1998,
Judge Bernikow denied Otero's request on the ground that such an
amended petition would be subject to dismissal as a ...