The opinion of the court was delivered by: Hellerstein, District Judge.
Later, Detective Farrell was recalled, and the prosecutor sought to
mark for identification a written copy of Rivera's statement. (Tr. 640).
The Court, in the jury's hearing, commented, "I believe you have it, I
have a photocopy of it, mine is an unredacted copy." (Tr. 641). Rivera's
and Bermudez's attorneys moved for a mistrial, but the Court denied the
motion, commenting, "I told them yesterday certain changes were made in
the statement by me to eliminate what I considered material that
shouldn't be in there. They were told that yesterday." (Tr. 644).
Petitioner's attorney pressed and argued that "[t]he Court cannot ever
tell the jury that any changes have been made" to a confession, (Tr.
644). The Judge replied, "[t]hat was told to them yesterday" and "[t]he
jury knew about this all along." (Tr, 645).
b. Rivera's Second Statement
Petitioner's first statement, a brief one, began with the admission
that "[w]e met at someone's house," left with "one guy," returned to
Petitioner's home, found that Petitioner's wife was not there, and "went
back to one of the guy's houses." (Tr. 619-20). Then, with Petitioner in
"another guy's car" and Colon "in the other guy's car," and one car
following the other, the two cars arrived at the gas station. (Tr. 620).
Petitioner stated that the others "decided to stick up the gas station,"
but Petitioner "told them [he] did not want any part of it." (Tr. 620).
Petitioner stated that he left "the guy's car" and walked across a nearby
bridge. (Tr. 620). After Colon and the two other guys finished robbing
the gas station, Petitioner stated that "one guy" picked him up. (Tr.
620). Two days later, Petitioner saw "two of the guys" and asked if
someone had been shot at the gas station. One of the guys responded, "I
don't know. I don't know." (Tr. 620).
d. Petitioner's Second Statement
Twenty minutes later, still in the police station, Petitioner gave a
second statement. (Tr. 624). Petitioner now stated that when he went with
the three guys to the gas station, he "knew they were going to stick it
up." (Tr. 624). Petitioner told his friends that he did not want to go
into the gas station, but "one guy" "told me to shut up." (Tr. 624-25).
"One guy and Tony" then went into the gas station's office and both of
them had guns. (Tr. 625). Petitioner withdrew from the scene and went,
not to a nearby bridge as he had claimed in his first statement, but to
the back of one of the bays in the gas station:
(Tr. 625). In answer to the detective's question, Petitioner answered
that "[t]here were four of us," including "Tony Colon," and that one of
the guys told him that Colon had fled to Puerto Rico. (Tr. 625, 627).
At the gas station, Petitioner saw that "[a] guy had a nine millimeter
and Tony had a big long gun, I think it was a 45." (Tr. 627). Petitioner
said that "[s]omeone hit [Hendricks] with the nine millimeter and
[Hendricks] fired a shot. I heard clapping like an automatic trigger
being pulled without one in the chamber," and a "kid" got hit in the
hand, and that he heard another shot, perhaps three shots in all. (Tr.
628-629). Petitioner got into a car and left with another guy. (Tr.
628-29). The detective asked Petitioner about the "sawed-off rifle," and
Petitioner said it "was in the other car." (Tr. 629).
e. Petitioner's Third Statement
Petitioner gave a third statement that night, to an Assistant District
Attorney. Petitioner stated that "me and two guys, and [Tony] Colon" went
to the station and bought some stuff. (Tr. 708). Petitioner was in "one
guy's car" and Colon was in the other car. (Tr. 708-09). Petitioner
stated that he was in the "back of the station," "back by the far end of
the corner." (Tr. 709). Someone came into the station, and Colon
"snatched" him and brought him to the back of the station. (Tr. 709).
Colon and "another guy" both had guns, and Petitioner, although not
seeing anyone get shot, heard two shots go off. (Tr. 709-10). Petitioner
then tried to further distance himself from the critical events:
(Tr. 710). Petitioner got into "another guy's car," and Colon and "the
other guy" got into "the red car." (Tr. 710).
Petitioner stated that he did not know there was going to be a
robbery, and saw the guns for the first time when Colon showed one inside
the gas station. (Tr. 711-12). Petitioner's statement to the Assistant
District Attorney continued:
Answer: Also, myself, I went inside.
Answer: No, no, I went to the back.
Answer: Hisself [sic] personally.
Answer: No, sir.
(Tr. 711-12). Continuing further, and discussing the events at the gas
station after they returned the second time, Petitioner stated:
Answer: Yes, sir.
At this point, O'Hara and Hendricks each drove into the station. (Tr.
714). Colon took O'Hara to the back of the office, and Petitioner
continued to try to distance himself:
Answer: No, sir, they were hanging out separately,
that was the. whole thing, you see, a guy
followed him, he followed him and they went
in the gas station. They went in the gas
station and Colon got out, you know, walked
straight in, another guy after him. Then a
guy was arguing, see, there was a
misunderstanding inside the gas station
between me and a guy.
Question: What do you mean, misunderstanding?
Answer: What I mean is that I told him I didn't want
to get involved, I told him I want to go
Question: And what did he say?
Answer: He told me to shut up.
(Tr. 715). Petitioner said that he heard two gun shots, and the noise
from someone trying to fire a gun without bullets, but he was "in the far
end of the gas station" and could not see what was happening inside the
office. (Tr. 716-17).
D. Bermudez's Testimony
After the People rested and motions to dismiss the indictments were
denied, Bermudez elected to testify in his defense. (Tr. 921-22).
Bermudez testified that he was asleep at home during the time that the
robbery took place, that he made dinncr for himself, took a walk around
his neighborhood and went to sleep around 12:00 or 12:30 a.m. (Tr.
926-28). Bermudez testified that he did not own a red Vega, that he did
not have a driver's license and that he had never met Ortiz and
Martinez. (Tr. 929-30).*fn4 In short, he denied having participated in
the robbery. (Tr. 930).
On cross-examination, Bermudez denied owning the .38 caliber revolver
that was found in the car where he was arrested, or the holster that was
found on his person. (Tr. 953-56). Bermudez testified that he and
Petitioner had been friends "for a couple of years," (Tr. 963), but
denied having called Petitioner or having asked him to alert Bermudez's
girl friend, Idalia Martinez or "Chickie." (Tr. 958). Bermudez
Q: Do you remember calling up Carlos?
Q: Carlos Figueroa?
Q: And telling Carlos to tell Chickie to go to the
house because the cops were going to come?
A: I requested a phone call, but they denied the fact
for me to make a phone call. I wanted to call my
(Tr. 959). Petitioner's attorney chose not to question Bermudez. (Tr.
1043). The People, through detective Farrell, rebutted Bermudez's denial
that he was not at the scene, and elicited that, after he was arrested,
he called Rosa Martinez, Petitioner's mother, and told her, "Tell Carlos
to go over to Chickie's and get the stuff." (Tr. 1059-60).
E. The Summations
1. Petitioner's Summation
The summation on behalf of Petitioner, although disjointed and
rambling, argued that Petitioner did not participate in the crime at the
gas station, that no witness placed him there, that there was no evidence
that he possessed a gun, and that his statement that he had argued with
the perpetrators was corroborated by the testimony of a witness. (Tr.
1158-71). Counsel argued that Bermudez's phone call to Petitioner's
mother was not incriminating vis-a-vis Petitioner, (Tr. 1153-54, 1170 &
1172), and that the lack of evidence against Petitioner explained why the
police did not arrest Petitioner until five to six weeks after the robbery
2. The People's Summation
The prosecutor argued that Petitioner's statements established his
presence at the robbery and that the eye witnesses saw the perpetrators
acting in concert. (Tr. 1215). Furthermore, he said, the statements of
Petitioner and Rivera tied into each other. Quoting from Rivera's
statement, the prosecutor told the jury that "one guy," the phrase
inserted by the trial judge in place of the redacted names, actually
referred to Petitioner:*fn5
"Answer: I was standing at the driver's side of my car
and one guy and Tony, Tony and me and one guy
were taking the safe out."
That one guy, I submit, Carlos Figueroa, because
[Bermudez] was in the office.
(Tr. 1245). Thus, the prosecutor, by telling the jury that "guy" stood
for Figueroa, undid the very purpose of the redaction, to prevent one
co-defendant's statement from inculpating another. Continuing, the
prosecutor told the jury that "one guy" in Rivera's statement meant
Figueroa, and "another guy" meant Bermudez:
"He [Mr. Hendricks] didn't go down, he pulled a gun. I
heard a shot, I think he fired. I saw one guy ducking
down behind my car." Carlos Figueroa. "Behind my car.
He got up, looked and then I hear another shot. . . ."
"One guy and another guy went to the red Vega."
Raymond Bemudez. "But one of the guys left his keys
behind and had to go back in." Raymond Bermudez.
(Tr. 1246-1252) (prosecutor's summation reading Rivera's statement).
Turning to Petitioner's statements, the prosecutor again filled in the
blanks for the jury:
"One guy and Tony went in, they both had guns. The
other guy and I went into the bay." That's Carlos
[Figueroa] and Hector [Rivera]. . . . "I heard a shot
so I ran and got into the car with another guy."
(Tr. 1249). And, again:
"Question: Name the guys who were with you?"
"Answer: Well, there were four of us."
Again, four, him [Petitioner], Raymond [Bermudez],
Hector [Rivera], Tony Colon. . . .
F. The Verdicts
Initially, the jury returned a verdict of guilty against Rivera and
Bermudez only, finding them guilty of murder in the second degree. (Tr.
1336-38). The jury reported that it had not reached a verdict as to
Petitioner and, to aid its deliberations concerning Petitioner, requested
Rivera's grand jury testimony and Petitioner's third statement. The Court
allowed a read-back of Petitioner's statement, but refused to provide the
jury with Rivera's statement, instructing that the evidence was not
relevant because the jury had already returned a verdict against Rivera.
(Tr. 1338-39). The jury then returned a verdict of guilty of murder in
the second degree against Petitioner. (Tr. 1342). The Court sentenced
Petitioner to twenty-five years to life. (Sentencing Tr. 17).
G. Petitioner's Appeal to the Appellate Division
On appeal to the Appellate Division, Petitioner, represented by the
same attorney who had represented him at trial, raised only one ground of
error: the trial court's refusal to honor the jury's request for a
read-back of Rivera's statement. (See Brief for Appellant, Ex. 3 to
Appendix in Support of Petition for Habeas Corpus ("Pet.App.")).
Petitioner's counsel argued. that Rivera's statement that Petitioner did
not carry a weapon on the night of the robbery would have helped
Petitioner's defense. (Id. at 5). Counsel was apparently not concerned
that Rivera's statements inculpated Petitioner in the robbery, regardless
whether Petitioner carried a gun. Petitioner's counsel also failed to
argue that Petitioner's constitutional rights were prejudiced, in
violation of Bruton v. United States, supra, by the trial court's flawed
redactions of Rivera's and Bermudez's out-of-court statements, and by the
prosecutor's improper summation over-riding whatever benefit the flawed
The prosecutor opposed Petitioner's appeal, arguing that the trial
court had ruled properly in not permitting Rivera's statement to be read
back to the jury after the jury had delivered its verdict against
Rivera. (Id. at 16).
Indeed, in view of the court's earlier instruction to
the jury, that Rivera's grand jury testimony, from
which all references to appellant and co-defendant
Bermudez had been redacted, should only be considered
as evidence against Rivera, and that the jury was not
to speculate concerning Rivera's references to any
other persons (T. 1296), it is obvious that the jury's
consideration of this evidence, at this juncture,
would have been inappropriate, and that, therefore,
the court's response was proper. Bruton v. United
States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
(Id. at 18). Implicitly, the prosecutor's appellate brief conceded the
impropriety of the prosecutor's summation in the trial court. If, as the
appellate brief stated, "the jury was not to speculate concerning Rivera's
references to any other person," and the jury's "consideration of [such]
evidence . . . would have been inappropriate" (Id.), the prosecutor
should not have argued, in summation, that "one guy" meant Figueroa, and
that "another guy" meant Bermudez.
By memorandum order dated June 18, 1985, the Appellate Division denied
the appeal and affirmed the judgment of conviction. (Pet.App.Ex.2).
Petitioner's attorney did not seek leave to appeal to the New York Court
of Appeals. (See Petition ¶ 10).
H. Petitioner's Writ of Coram Nobis
Some ten years later, new counsel for Petitioner filed a writ of coram
nobis in the Appellate Division, First Department, alleging that
Petitioner's appellate counsel had rendered ineffective assistance and
that Petitioner should be released from custody because: (1) the
admission and inadequate redaction of Rivera's statements violated
Bruton; and (2) the admission of Bermudez's statement, and the
prosecutor's cross-examination of Bermudez, denied Petitioner a fair
trial. See Pet.App.Ex. 16. By Order dated January 21, 1997, the Appellate
Division denied the writ without elaboration, but with citation only to
People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386 (1st Dep't
1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940, 521 N.E.2d 1083
(1988).*fn6 See Pet.App.Ex. 1.
II. The Standard for Habeas Review
Petitioner filed this action on April 23, 1997, seeking relief under
28 U.S.C. § 2254, on the ground, inter alia, that the admission of
Rivera's statement, and their flawed redaction violated his Sixth
Amendment rights under Bruton. Under recent amendments to the governing
law as provided by the Antiterrorism and Effective Death Penalty Act
("AEDPA"), Petitioner must show that his conviction was obtained in
violation of clearly established Federal law, as determined by the United
States Supreme Court. Section 2254(d), as amended, provides:
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
My inquiry, therefore, focuses on whether Petitioner's judgment of
conviction is inconsistent with Federal law, as determined by the United
States Supreme Court, as of June and July, 1981, the date of trial.*fn7
III. Federal Law, as Determined by the Supreme Court, at the Time
Federal law regulating the use of out-of-court statements of one
co-defendant to prove the culpability of another co-defendant was
developed prior to June 1981 in two decisions of the United States
Supreme Court: Bruton v. United States,
, 88 S.Ct. 1620, 20
L.Ed.2d 476 (1968) and Parker v. Randolph,
, 99 S.Ct. 2132, 60
L.Ed.2d 713 (1979).
In Bruton, two defendants, Evans and Bruton, were jointly tried for
armed postal robbery. At their trial, Evans's confession was introduced
into evidence. Evans confessed to having committed the crime, and his
confession also directly inculpated Bruton. Evans did not take the
witness stand. The trial court instructed the jury that Evans' confession
could be used only against Evans, and that the jury should disregard the
references to Bruton. See id. at 124-25, 88 S.Ct. 1620. Notwithstanding
this instruction, the Supreme Court held that the admission of Evans'
confession violated Bruton's Sixth Amendment right to confront the
witnesses testifying against him. See id. at 126 & 136-37, 88 S.Ct.
1620. The Court reasoned that "there are some contexts in which the risk
that the jury will not, or cannot, follow instructions is so great, and
the consequences of failure so vital to the defendant, that the practical
and human limitations of the jury system cannot be ignored." Id. at 135,
88 S.Ct. 1620. Thus, the Supreme Court held, a limiting instruction
cannot cure the prejudice that results from admitting a co-defendant's
out-of-court confession into evidence; the "risk" to the other defendant
"is so great," "and the consequences of [jury] failure so vital," as to
require a new trial.
In Parker, the Court divided four to four on whether an interlocking
confession — a confession of one defendant that "interlocks" with
the confession of another — could create an exception to Bruton.
Four Justices held that there was an exception.*fn9 They reasoned that
Bruton excludes out-of-court confessions because they are devastating,
even in the context of limiting instructions by the trial judge. If,
however, the defendant's case "has already been devastated" because of
the defendant's own confession, the exclusionary rule of Bruton can serve
no purpose and the out-of-court confession of the co-defendant may be
admitted. Parker, 442 U.S. at 75 &. a. 7, 99 S.Ct. 2132. Four other
Justices held that introduction of a non-testifying co-defendant's
confession is always a violation of the Sixth Amendment, but that the
error may, in some cases, be harmless where the defendant confessed. See
id. at 77-80, 99 S.Ct. 2132.*fn10 In Parker; five Justices agreed that
the error was harmless and, on that ground, affirmed the conviction five
votes to three.*fn11
As I discuss below, I hold, as did the trial court, that Petitioner's
three statements did not "interlock" with Rivera's two statements, and
that the trial court's flawed redactions of Rivera's statements
implicated Petitioner in the gas station robbery and murder in violation
IV. Petitioner's Statements Were Not Interlocking
Not all statements made by a defendant are confessions, and not all
confessions are interlocking simply because co-defendants make separate
confessions regarding the same charged conduct. A confession is an
admission of guilt; confessions are "interlocking" if they overlap by
describing critical events in a substantially similar way without
significant discrepancies. See Parker, 442 U.S. at 67-68, 99 S.Ct. 2132
(confessions could be deemed interlocking because they "clearly
demonstrated the involvement of each, as to crucial facts such as time,
location, felonious activity, and awareness of the overall plan or
scheme") (internal quotation
marks and citation omitted); id. at 76 n. 8, 99 S.Ct. 2132 (defendant's
statement that "Tennessee was an easy place to commit a robbery" held not
to be an interlocking confession because "[t]his extrajudicial
statement, while inculpatory, was by no stretch of the imagination a
`confession'" (quoting and discussing Roberts v. Russell, 392 U.S. 293,
88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968))). Later decisions that applied
Bruton and Parker are to similar effect. See, e.g., Lee v. Illinois,
476 U.S. 530, 545, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) ("If those
portions of the co-defendant's purportedly `interlocking' statement which
bear to any significant degree on the defendant's participation in the
crime are not thoroughly substantiated by the defendant's own
confession, the admission of the statement poses too serious a threat to
the accuracy of the verdict to be countenanced by the Sixth Amendment. In
other words, where the discrepancies between the statements are not
insignificant, the codefendant's confession may not be admitted.");
Holland v. Scully, 797 F.2d 57, 66 (2d Cir.), cert. denied, 479 U.S. 870,
107 S.Ct. 237, 93 L.Ed.2d 162 (1986) (interlocking confessions must be
"substantially the same and consistent on the major elements of the crime
involved" and "identical on all key points"); United States v. Fritz,
476 F.2d 37, 39 (2d Cir.), cert. denied, 414 U.S. 1075, 94 S.Ct. 591, 38
L.Ed.2d 482 (1973) (interlocking confessions must be the same "[a]s to
motive, plot and execution of the crime").*fn12
The trial court correctly held that Petitioner's statements did not
interlock with the statements of Rivera or Bermudez. Although
Petitioner's statements are not altogether consistent as to his presence
in the vicinity of the robbery, Petitioner throughout maintained his
opposition to, and lack of participation in, the intention of some or all
of the others to rob the gas station. (Tr. 620, 624-25, 710, 711-12, 713
& 715). The others, Petitioner stated, told him to "shut up." (Tr. 713 &
715). Rivera's statements, in contrast, inculpate all, Petitioner
included. Thus, Rivera's first statement begins: "We were driving around
and decided to stick up the gas station." (Tr. 530). I hold that
Petitioner's statements are not confessions and are not interlocking.
Respondent argues that Petitioner's second statement, where he stated
that he "knew they were going to stick it up" (Tr. 624), and his second
and third statements, where he admitted presence but not participation
(Tr. 625) (Tr. 710), constitute confessions of guilt. I disagree; they do
not. Presence, without function or intent to participate, is not enough.
There is no material overlap between Petitioner's and Rivera's
The prosecutor's argument of "interlocking"
confessions was properly rejected by
the trial court. (Tr. 14). As the trial court ruled, Bruton is not
avoided merely because one statement refers to the other. "It is more
than that. It is more than just referring to the other. It is where the
statements are substantially the same."
I come now to the redactions of Rivera's out-of-court statements, and
their inculpation of Petitioner.
V. Admission of Rivera's Confession Violated Bruton
If a confession is redacted so that it does not inculpate
co-defendants, Bruton is not implicated, for the redacted confession
proves the guilt only of the party who gave it. See, e.g., Richardson v.
Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ("[W]e
continue to apply Bruton where we have found that its rationale validly
applies," citing Cruz v. New York, supra). That assumes, of course, that
the redaction sufficiently masks the identities of co-defendants.
In the case at bar, the trial court told the jury that Rivera's
confession had been redacted in order to mask the identity of
co-defendant Figueroa; thus, the name of Tony Colon, the fugitive, had
not been redacted. [Tr. 531]. However, Judge Learned Hand observed years
before Bruton was decided,
[T]here could not have been the slightest doubt as to
whose names had been blacked out. . . . [E]ven if
there had been, that blacking out itself would have
not only laid the doubt, but underscored the answer.
United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956),
affirmed, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), overruled by
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476
Bruton itself has been applied to void convictions by improperly
redacted confessions of non testifying co-defendants for, as in Bruton,
no matter the limiting instruction, the "devastating" nature of the
hearsay proof cannot dependably be kept from mind by the jury. In Gray
v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), for
example, the co-defendant's confession was redacted by reading "blank"
rather than the petitioner's name. As the Supreme Court held, the jury
was not fooled, for the name of the defendant was easily substituted.
Redactions that simply replace a name with an obvious
blank space or a word such as "deleted" or a symbol or
other similarly obvious indications or alteration,
however, leave statements that, considered as a
class, so closely resemble Bruton's unredacted
statements that, in our view, the law must require the
Id., at 1152. Indeed, the Supreme Court went on, "By encouraging the jury
to speculate about the reference, the redaction may overemphasize the
importance of the confession's accusation — once the jurors work
out the reference." Id.;
cf. United States v. Kyles,
526 (2d Cir. 1994), cert. denied, 514 U.S. 1044, 115 S.Ct. 1419, 131
L.Ed.2d 302 (1995) ("[A] redacted confession runs afoul of Bruton only if
it standing alone, would clearly inculpate the [non-declarant] without
, 1135 (2d Cir. 1989),
, 107 L.Ed.2d 1044 (1990)
("[A] redacted statement in which the names of co-defendants are replaced
by neutral pronouns, with no indication to the jury that the original
statement contained actual names . . . may be admitted without violating
a codefendant's Bruton rights."); United States v. Wilkinson,
, 1435 (2d Cir.), cert. denied,
, 105 S.Ct.
3482, 87 L.Ed.2d 617 (1985) (finding no Bruton error where "there was no
reason for the jury to believe that anything had been redacted"). In this
case, the redaction failed and the jury was aware that Rivera's
confession inculpated Petitioner.
The trial court committed serious and repeated error by informing the
jury that Rivera's statements were redacted. Prior to the introduction of
Rivera's first statement, the Judge instructed the jury that Rivera's
statement referred to other people and that the jury should not speculate
whether Rivera "was talking about the other persons involved in this
trial."*fn15 (Tr. 529). The Court then instructed the jury as follows:
(Tr. 529). In other words, according to the trial judge, the officer was
allowed to read the statement to make sure that he did not identify the
persons whose identities were cloaked by substituting references to "other
persons." Unfortunately, however, the trial court's instruction gave the
jury the very information that the trial court wanted to keep from the
jurors; the jury could readily infer from the fact of redaction that
"other guy" meant Petitioner.
Later, the trial judge commented in open court that he possessed an
"unredacted" copy of Rivera's statement. Defendant Bermudez and
Petitioner moved for a mistrial, arguing that it was improper for the
court to tell the jury that an out-of-court confession was changed, or
redacted. (Tr. 644). The Court denied the motion, and commented: "I told
them yesterday certain changes were made in the statement by me to
eliminate what I considered material that shouldn't be in there. They
were told that yesterday. . . . The jury knew about this all along."
As one of the officers read Rivera's first statement, the Court
interrupted to tell the jury that the officer had read Tony Colon's name
as a participant in the event because Colon was not on trial:
(Tr. 531). Thus, the jury knew that the references to "one guy" and
"other persons" in Rivera's out-of-court confession were to Petitioner
and co-defendant Bermudez. Minutes later, that was confirmed, as Rivera's
confession specifically named four: Colon, himself and "two others:"
The trial court intended, by redactions, to avoid prejudice that, under
Bruton, violates the Sixth Amendment. Unfortunately, those very
redactions created a Sixth Amendment violation.
VI. The Bruton Violation was Harmful Error
Not all Bruton violations justify granting a petition for habeas
corpus. The error must be harmful; it must have had a "substantial and
injurious effect or influence in determining the jury's verdict." Brecht
v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353
(1993); Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340
(1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d
284 (1969). Because it is "virtually impossible to determine whether a
jury did or did not ignore an inculpatory statement," courts review "a
host of other factors" to determine whether Bruton errors were harmful,
Latine v. Mann, 25 F.3d 1162, 1167 (2d Cir. 1994), among them:
Id. (citing Delaware v. Van Arsdall,
, 684, 106 S.Ct. 1431, 89 L.Ed.2d
674 (1986)). In addition, the court "must
also consider the nature and content of the
defendant's own statement, in particular,
`whether it satisfactorily explains his or
her part in the crime without reference to
the co-defendant's statement.'" Samuels v.
, 527 (2d Cir. 1993) (citation
omitted), cert. denied, 513 U.S. 849,
, 130 L.Ed.2d 85 (1994).
"The strength of the prosecution's case is
probably the single most critical factor."
United States v. Castano,
618 (2d Cir. 1993) (per curiam).
Applying this standard here, I find
that the error was harmful. None of the
dozen witnesses called by the prosecution
could place Petitioner at the scene of the
robbery. Nor was there any physical evidence
linking Petitioner to the crime: he
was not carrying a weapon when he was
arrested; his fingerprints were not found
on any of the weapons used in the shooting;
and nothing left at the scene implicated
him, Although Petitioner's own statements
placed him at the scene, it is as a
person not wishing to be present and not
taking part in the criminal activities of the
others. Such evidence is not sufficient to
excuse a violation of Bruton. See Holland
v. Scully, 797 F.2d 57 (2d Cir.), cert. denied,
479 U.S. 870, 107 S.Ct. 237, 93
L.Ed.2d 162 (1986) (Bruton error held
harmful where, in a felony murder case,
Petitioner's statement did not admit inducing
co-defendants to commit the crime nor
did Petitioner admit to participating in the
planning of the crime); Cotto v. Mann,
991 F. Supp. 124, 132 (E.D.N.Y. 1998) (Bruton
error held harmful where Petitioner's
statements did not show awareness of a
planned robbery or agreement to participate
or facilitate robbery). Rivera's statements,
improperly redacted by the court
and commented on by the prosecutor, were
the sole evidence establishing Petitioner's
complicity in the robbery and shooting.
Without such evidence, the record is inadequate
to show that Petitioner knowingly
and willfully participated in the robbery or
Significantly, the jury requested a read
back of Rivera's grand jury testimony after
it returned a guilty verdict against
Rivera, and while still considering the case
against Petitioner. (Tr. 1338). Although
the Court refused to provide Rivera's
statement, explaining that it was not relevant
against Petitioner (Tr. 1338-39), the
damage had already been done. As Bruton
holds, the prejudice arising from the
admission of a co-defendant's out-of-court
confession cannot be undone by a limiting
instruction. Bruton, 391 U.S. at 135, 88
S.Ct. 1620 ("[T]here are some contexts in
which the risk that the jury will not, or
cannot, follow instructions is so great, and
the consequences of failure so vital to the
defendant, that the practical and human
limitations of the jury system cannot be
ignored.").*fn17 There is no reasoned basis to
believe that the Court's last instruction
avoided error where the previous instructions
so clearly failed.
VII. Petitioner Exhausted His State Court Remedies
"[A] state prisoner must normally
exhaust available state judicial remedies
before a federal court will entertain
his petition for habeas corpus." Picard v.
Connor; 404 U.S. 270, 275, 92 S.Ct. 509, 30
L.Ed.2d 438 (1971). A Petitioner who
seeks to upset his state conviction on federal
grounds "must first have given the
state courts a fair opportunity to pass
upon his federal claim," pursuing his claim
to the highest State court capable of reviewing
the matter. Daye v. Attorney
General of the State of New York,
696 F.2d 186, 190 a. 3 & 191 (2d Cir. 1982) (en banc).
Section 2254(b) of title 28 codifies the requirement:
28 U.S.C. § 2254(b)(1)(A). As the Supreme
Court held just this last term, the
rule reduces the "friction between the
state and federal court systems by avoiding
the `unseem[liness]' of a federal district
court's overturning a state court conviction
without the state courts having had an
opportunity to correct the constitutional
violation in the first instance." O'Sullivan
1732, 144 L.Ed.2d 1 (1999) (alteration in
Here, Petitioner's brief on direct appeal
to the New York State Appellate Division
failed to raise the Bruton issue, and Petitioner
failed to seek leave to appeal to the
New York Court of Appeals. Petitioner
did not, therefore, exhaust the procedures
available on direct review with respect to
the Bruton issue. Nonetheless, Petitioner's
coram nobis application addressed the
Bruton issue in the context of raising his
claim of ineffective assistance of appellate
counsel. See Pet.App.Exs. 14-16. The issue,
therefore, is whether raising the Bruton
issue in the context of an ineffective
assistance of counsel claim in a coram nobis
proceeding satisfies the exhaustion requirement.
For the reasons that follow, I
hold that it does.
The courts of this circuit have recognized
that raising issues on coram nobis
that were not raised on direct appeal can
satisfy the exhaustion requirement. See,
e.g., Klein v. Harris, 667 F.2d 274, 282 (2d
Cir. 1981) (where a Petitioner has not exhausted
his claims on direct appeal, Petitioner
"must utilize available state remedies
for collateral attack of his conviction
in order to satisfy the exhaustion requirement"
(citing Johnson v. Metz,
609 F.2d 1052, 1055-56 (2d Cir. 1979) (instructing habeas
Petitioner who did not fairly present
claim in the course of his direct appeals to
proceed by filing a motion to vacate judgment
pursuant to N.Y.Crim.Proc, Law
§ 440.10))); Bellavia v. Fogg,
613 F.2d 369, 371 & n. 3 (2d Cir. 1979) (holding that
claims not raised on direct review were
nonetheless exhausted because they had
been raised in a coram nobis motion);
Fielding v. LeFevre, 548 F.2d 1102, 1106
(2d Cir. 1977) ("In order to meet the exhaustion
requirement, a Petitioner must
have presented his claim to the state
courts at least once, on direct or collateral
review."); DaCosta v. Mitchell, No. 95 Civ.
1667(JG), 1996 WL 1088898, at *2
(E.D.N.Y. Dec. 12, 1996); Sanford v. Senkowski,
791 F. Supp. 66, 69 (E.D.N.Y. 1992).
A leading treatise in this area summarizes
the point well:
2 James S. Liebman & Randy Hertz, Federal
Habeas Corpus Practice and Procedure
§ 23.3b, at 883 (3d ed. 1998) (emphasis
Here, Petitioner's writ of coram
nobis raised an ineffective assistance
of appellate counsel claim that encompassed
the Bruton issue and was indeed
predicated directly on it. The Appellate
Division denied that application on January
21, 1997. See Pet.App.Ex. 1. A writ of
coram nobis is the proper means of raising
a claim of ineffective assistance of appellate
counsel. See Mathis v. Hood,
851 F.2d 612, 614-15 (2d Cir. 1988) (citing People
v. Bachert, 69 N.Y.2d 593, 599,
516 N.Y.S.2d 623, 509 N.E.2d 318 (1987)).
And, because an order of the Appellate
Division denying a writ of coram nobis is
not appealable to the New York Court of
Appeals, Petitioner has given the highest
state court capable of addressing the issue
an opportunity to do just that. See, e.g.,
Ramirez v. Headley, No. 98 Civ.
2603(RWS), 1998 WL 788782, at *4
(S.D.N.Y. Nov. 10, 1998); Garcia v. Keane,
973 F. Supp. 364, 369-70 (S.D.N.Y. 1997);
see also O'Sullivan, 119 S.Ct. at 1734
("[N]othing in our decision today requires
the exhaustion of any specific state remedy
when a State has provided that that remedy
is unavailable"). Thus, Petitioner has
exhausted the available remedies with respect
to his claim of ineffective assistance
of appellate counsel. The lingering issue
is whether exhausting a claim of ineffective
assistance of appellate counsel that subsumes
a Bruton issue also exhausts the
Bruton issue. For the reasons that follow,
I hold that it does.
In order to satisfy the exhaustion
requirement, a habeas Petitioner must
have "fairly presented" the federal claims
to the state courts. See, e.g., Picard, 404
U.S. at 275, 92 S.Ct. 509. The Court of
Appeals addressed this requirement at
some length in its en banc opinion in Daye:
696 F.2d at 191-92 (citations omitted).
Particularly relevant here is the requirement
that the Petitioner place before the
state court "essentially the same legal doctrine"
as raised in the habeas application.
Id.; see also Fielding, 548 F.2d at 1107
(characterizing the requirement as imposing
a burden to present the "substantial
equivalent" of the federal claim); Steele v.
Walter; 11 F. Supp.2d 252, 256 (W.D.N Y
1998) (Petitioner must raise "substantially
the same legal doctrines"). The Court of
Appeals in Daye elaborated on this requirement
and noted that it does not mean
that "there can be no substantial difference
in the legal theory advanced to explain
an alleged deviation from constitutional
precepts" and that the important
point is that the state courts be given an
opportunity to pass on the "substantial
equivalent" of the habeas claim. 696 F.2d
at 192 & n. 4.
Respondent has failed to make the
particularized showing necessary to support
its defense of laches. Respondent has
not shown prejudice in its ability to respond
to the petition. Nor is there any
suggestion of prejudice in connection with
a possible retrial. The prosecutor lacked
witnesses and evidence to prove a case
against Petitioner in 1981, and points to no
additional proofs that might have been
available to him since that time — even assuming
that prejudice in connection with a
retrial is a relevant factor to a defense of
laches. Vasquez v. Hillery, supra. The
violation of Bruton that is the basis of this
petition is clear from the trial record and
does not require a hearing or the submission
of further proofs. I therefore hold
that the defense of laches has not been
For the reasons stated, the petition for a
writ of habeas corpus is granted. Respondent
shall release Petitioner from custody
unless, within 30 days from the date of this
Order, the People announce their intention
to retry Petitioner or notice an appeal to
the Court of Appeals.