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February 27, 2002


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


By Report and Recommendation dated October 16, 2001 ("Report"), Magistrate Judge Gorenstein has recommended that the above petition for a writ of habeas corpus be denied. Petitioner has filed timely objections to the Report. This Court has considered those objections, and concurs with Judge Gorenstein's recommendation, for the reasons set forth in the Report. The writ is denied and the petition is dismissed.*fn1


This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is brought by Genaro Campos, currently an inmate at Clinton Correctional Facility in Dannemora, New York. On January 20, 1994, a jury returned a guilty verdict against Campos for Criminal Possession of a Weapon in the Third Degree under New York Penal Law § 265.02(4). On August 18, 1994, Campos was sentenced by Justice Steven Lloyd Barrett to 12 years-to-life.


A. Evidence at Trial

The People called two witnesses at trial: Officer Craig Rudiger and Sergeant Michael Mulligan. They testified that on February 9, 1991, while on duty in the Bronx, a passerby directed their attention to Campos and a woman, who were having "possibly an argument" on Leland Avenue. (Tr. Rudiger 577-78; Mulligan 745).*fn1 After Campos saw that there were officers approaching him, he began to cross the street. (Tr. Rudiger 578-79). As the officers were following Campos on the street, Officer Rudiger saw Campos remove a large silver firearm from his waistband. (Tr. Rudiger 579). Officer Rudiger stopped and watched as Campos placed the firearm beneath an automobile. (Id.).

After the officers arrested Campos, Rudiger went to retrieve the handgun (Tr. Rudiger 579). The handgun turned out to be a fully loaded .357 Magnum. (Tr. Rudiger 580). When Campos was subsequently searched, Officer Mulligan recovered nine additional rounds of ammunition from Campos' pocket which fit the .357 Magnum. (Tr. Rudiger 580; Tr. Mulligan 748). Both officers identified Campos in open court. (Tr. Rudiger. 581; Tr. Mulligan 747). The defense presented no evidence. (Tr. 808, 815).

B. Juror Nine and Juror Deliberations

Following Officer Rudiger's testimony (but before Sergeant Mulligan testified), Juror Nine requested to be discharged because he said he had to return to work on the following day. (Tr. 701). The Judge informed him that he was expected to continue on the case as a juror and that his employer could take no adverse action against him because of his jury service. (Tr. 702). The next day, the juror told the judge that "maybe I may have judged the case before it is over." (Tr. 706). After further colloquy, the Judge concluded that the juror sought to be excused because of his desire to return to his job rather because of than any concern regarding bias. (Tr. 709).

Nonetheless, prior to summations, the trial court sua sponte called up Juror Nine to ask if he could continue to serve as an unbiased juror and offered that if he could not do so he would be excused. (Tr. 818-20). Juror Nine conceded that his partiality had not really been at issue and that he could continue to be "fair to both sides." (Tr. 821). The defense nonetheless made a motion to excuse Juror Nine, which the court denied. (Tr. 823). Counsel thereafter delivered summations and the jury was charged. (Tr. 832-917).

Later that same day — the first day of deliberations, January 18, 1994 — the jury asked for a readback of portions of the officers' testimony. (Tr. 925). The case was adjourned until the next day. (Tr. 934).

Ladies and gentlemen, I received both of your last notes. The first one announces a verdict. The second note rescinds that note.
And I have determined the following is the course of action, that may or may not be a popular one among you, but is based on many years of experience that I have concerning extended deliberations. That is to take into account the amount of deliberations that have occurred particularly during the day in question, and I therefore seen this particular sequence, I think that the only appropriate thing to do now is to send you out overnight. So stop the deliberations for today. Send you to a hotel now. We like you all to relax. Stop thinking about the case for few hours. We will guarantee you not only a good meal tonight but actually put the heat on in the rooms. I hope that's not terribly unpopular or difficult for any of you. I know that you had not planned to be here overnight again, but it appears to the court that further discussions among the jurors should be had.
That's not to say, I want to emphasize this, that the second note indicating an impasse is unacceptable to the court. I'm not saying that at all. I'm simply saying that coming as it did after an apparent agreement I think that it would be best if we took a period of relaxation and make one final effort on the part of the jury to see if we can resolve this case.
I reiterate what I told you before which is that you're not required to reach a verdict. I want to emphasize to you that I am not holding you hostage for the purpose of retaining you. I'm simply recognizing the notes that were received and came close to the time we normally would break. I have a responsibility to you to assure that you are taken care of in an appropriate manner and that means fed at a reasonable time and if need be housed. I don't see further deliberations now could be appropriate.
It is very close now to 8:00. You gone [sic] about seven hours. Also I don't believe sending you to a dinner break, you come back here until ten o'clock would serve any purpose. Certainly many of you look very tired.
At this time I can't accept the last note that you reached an impasse unequivocally and categorically because it follows very closely on the note that you reach a decision. Of course we prefer a decision. Just simply not the case that you must. You are obliged only to do what you believe in your conscience is required. Listen to your fellow jurors. Offer your views but ultimately you have an absolute right to stand by your views regardless what the other jurors say. I just simply indicate to you that I like you to make an effort to discuss the case tomorrow. If possible, I like to see if you can reach a verdict. If it is not possible, that's perfectly acceptable to the court.
Having said that I think I can break it down in thirty or forty words. We will send you down to a hotel, have dinner, have a nice rest. I'm going to call in advance right now to turn on the heat. And try not to discuss the case in small groups on any other matter from this point until tomorrow when you return to court after dinner. Have a good night's sleep.
I certainly want to say I appreciate the effort you put in the case regardless how this matter ultimately is resolved. I very greatly appreciate the effort. I know it's very difficult to be a juror and very difficult to discuss the case over a long period of time, we do appreciate that.

(Tr. 952-56).

The next morning, January 20, 1994, the trial judge opened the proceedings by informing counsel that he had a note from Juror Nine stating: "Your Honor, please [!] I would like to exercise the option you gave me last week, Thursday," (Tr. 95758) an apparent reference to the judge's offer to Juror Nine prior to summations that he could be excused if he wished (Tr. 818-21). The Judge was about to inform the jury that the court would only consider notes by the foreman. (Tr. 960). While the court officer was going to get the jury, however, the jury sent out a note signed by the foreperson stating: "No further amount of deliberation will ever overcome the impasse." (Tr. 960-61). The time was 11:45 a.m. (Tr. 961). Defense counsel sought a mistrial. (Id.). The prosecutor, however, noted that "the day is still young" and that the jury had previously stated that it had reached a verdict, only to state thereafter that ...

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