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ORRACA v. WALKER

June 18, 1999

JOSE ORRACA, PETITIONER,
v.
HANS G. WALKER, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, DEFENDANT.



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

MEMORANDUM AND ORDER

By Report and Recommendation dated May 26, 1999 (the "Report"), Magistrate Judge Peck recommended that the above petition for a writ of habeas corpus be denied without prejudice as a mixed petition. No timely objections having been filed (and petitioner having, apparently, see his letter to the Court dated June 14, 1999, commenced a proceeding to raise his unexhausted claims in state court), and upon consideration of the Report, this Court accepts the recommendation of the Magistrate Judge.

The petition is dismissed without prejudice as a mixed petition.

SO ORDERED.

REPORT AND RECOMMENDATION

Petitioner Jose Orraca filed this timely habeas corpus petition on or about April 27, 1998 alleging that: his manslaughter conviction was against the weight of the evidence; he was denied a fair trial because of erroneous evidentiary rulings and prosecutorial misconduct; Brady violations; issues regarding eyewitness identification; and errors in his sentencing. (E.g., Pet. ¶ 12(A); Orraca Br. at 1.)

For the reasons set forth below, because Orraca's petition raises claims that have not been exhausted in State court, I recommend that Orraca's petition be dismissed without prejudice as a mixed petition.

PROCEDURAL BACKGROUND

On November 17, 1993, Orraca was convicted in Supreme Court, New York County, of first degree manslaughter, second degree assault and first degree reckless endangerment, and sentenced to consecutive sentences totaling 19 1/2 to 39 years imprisonment. (Pet. ¶¶ 1-4.) See People v. Orraca, 237 A.D.2d 148, 148, 655 N.Y.S.2d 7, 8 (1st Dep't), appeal denied, 90 N Y2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062 (1997). Orraca's conviction arose from the June 1, 1992 shooting death of Israel Martinez, and the July 30, 1992 police chase and arrest of Orraca. (See, e.g., Orraca 1st Dep't Br. at 3.)

Orraca's Direct Appeal

On August 5, 1996, Orraca's counsel filed a 62-page brief to the First Department, raising the following issues: (1) insufficiency of the evidence and the verdict was against the weight of the evidence (Orraca 1st Dep't Br. at 15-25; Orraca 1st Dep't Reply Br. at 12-15); (2) exclusion of defense evidence (Orraca 1st Dep't Br. at 25-28); (3) prosecutorial misconduct during summation and related evidentiary errors (id. at 28-54; Orraca 1st Dep't Reply Br. at 2-12); (4) identification evidence should have been suppressed (Orraca 1st Dep't Br. at 57-60; Orraca 1st Dep't Reply Br. at 15-19); (5) Orraca was erroneously sentenced as a second violent felony offender (Orraca 1st Dep't Br. at 60-61; Orraca 1st Dep't Reply Br. at 19); and (6) consecutive sentences were excessive (Orraca 1st Dep't Br. at 61-62).

The First Department affirmed Orraca's conviction on March 13, 1997, and on June 16, 1997 the Court of Appeals denied leave to appeal. People v. Orraca, 237 A.D.2d 148, 655 N.Y.S.2d 7 (1st Dep't), appeal denied, 90 N.Y.2d 861, 661 N.Y.S.2d 188, 683 N.E.2d 1062 (1997).

Orraca's N.Y. CPL § 440.10 Motion

On or about June 19, 1998, Orraca filed a CPL § 440.10 motion in the trial court alleging ineffective assistance of trial counsel. (Orraca Traverse Aff. ¶¶ 20-21; Affirmation of ADA Susan Axelrod, dated 11/17/98, ¶ 10.) On or about October 9, 1998, the trial court denied Orraca's CPL § 440.10 motion. (Orraca Traverse Aff. ¶ 21 & Ex. A: 10/9/98 Order; see Axelrod Aff. ¶ 10.) On February 26, 1999, the First Department denied leave to appeal from the trial court's denial of the CPL § 440.10 motion, and the New York Court of Appeals denied leave to appeal on March 16, 1999. (See Docket No. 8: Orraca 3/17/99 Letter to Court: Enclosures.)*fn1

Orraca's Current Federal Habeas Petition

Orraca's current federal habeas petition is dated April 27, 1998 and was received by the Court's Pro Se Office on April 30, 1998. (See Pet. at pp. 2, 7.) Orraca agrees with the following summary by the State of his Petition:

  In that petition, he sought relief on a number of
  grounds: 1) that his conviction for manslaughter
  had been obtained in violation of his due process
  rights; 2) that the trial court had erred in
  permitting the People to introduce evidence of the
  lineup identifications; 3) that all of the court's
  pretrial rulings were unfair; 4) that the trial
  court precluded the introduction of exculpatory
  evidence; 5) that the trial court prevented him
  from asserting his defense; 6) that the police and
  ...

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