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OTERO v. STINSON

April 27, 1999

RICHARD OTERO, PETITIONER,
v.
JAMES STINSON, SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Baer, District Judge.

ORDER

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 mixed petition.

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.

SO ORDERED.

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.

PROCEDURAL BACKGROUND

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

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 (1996).

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 ...


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