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September 17, 2002


The opinion of the court was delivered by: Larimer, Chief Judge



Before the Court is the pro se petition of Jesse Hammock ("Hammock") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted after trial in New York Supreme Court, Monroe County of four counts of murder, 2d degree, and five counts of attempted robbery, 1st degree. He was sentenced to two consecutive indeterminate terms of twenty-five years to life on the murder convictions, and two terms of seven and one-half to fifteen years on the attempted robbery convictions, to be served concurrently with the murder sentences. The Supreme Court, Appellate Division, Fourth Department affirmed the convictions, People v. Hammock, 255 A.D.2d 957 (4th Dept. 1998), and the Court of Appeals denied leave to appeal. People v. Hammock, 93 N.Y.2d 899 (1999). For the reasons set forth below, the § 2254 petition is dismissed.


On October 12, 1984, petitioner was indicted for murder and attempted robbery in connection with an incident in which three masked men entered a bar with handguns and a sawed-off shotgun and attempted to rob the occupants. During the attempted robbery, two people were shot to death.

Hammock had been convicted of the murder at a prior trial, but his conviction was reversed by the Appellate Division, Fourth Department, based on prosecutorial misconduct. People v. Hammock, 182 A.D.2d 1114 (4th Dept. 1992). Although the Appellate Division reversed the conviction, it affirmed the denial of a suppression motion that Hammock had made in which he claimed that the warrant had been impermissibly altered by the executing officers. The Appellate Division ruled that the trial court correctly determined that there was no basis to suppress evidence seized pursuant to the warrant. The case was then remanded for retrial.

Prior to the retrial, Hammock once again moved to suppress items obtained during execution of the search warrant. In addition, he moved to dismiss the indictment on double jeopardy grounds. Both motions were denied.


Petitioner's writ of habeas corpus raises three claims. First, he claims that his Fourth Amendment rights were violated in connection with the execution of the search warrant at his home. Next, he claims that the retrial violated his right not to be twice put in jeopardy. In addition, he claims that he was denied effective assistance of counsel at trial based on a single comment of his trial counsel during voir dire and other alleged failings during the trial. For the reasons discussed, infra, I find that none of these claims warrant the relief requested and, therefore, the petition must be dismissed.


I. Exhaustion

Before examining the merits of petitioner's claims, it is necessary to consider whether petitioner exhausted state court remedies. Generally, a federal court will not entertain a habeas corpus petition from a state prisoner unless the prisoner has exhausted state court remedies. Picard v. Connor, 404 U.S. 270, 275 (1971). Exhaustion of state remedies requires presentation of the claim to the highest state court from which a decision can be obtained. Daye v. Attorney General of the State of New York, 696 F.2d 186, 190 n. 3 (2d Cir. 1982). In addition, a petition that contains both exhausted and unexhausted claims should be dismissed so that the state courts have an opportunity to decide the unexhausted issues. Rose v. Lundy, 455 U.S. 509, 510 (1982). A petitioner must exhaust his judicial remedies with regard to each claim that he seeks to assert in a federal habeas proceeding. 28 U.S.C. § 2254(b)(1)(A).

In the instant case, respondent argues that petitioner has not exhausted each aspect of his claim that trial counsel was ineffective. Specifically, respondent argues that the claim that counsel failed to introduce exculpatory evidence was not fully exhausted. The Court notes that petitioner filed a Pro Se supplemental brief on the appeal, in which he raises ineffective assistance of counsel and argues that counsel's "blunders" deprived him of a fair trial. He cites to the statement that counsel made during voir dire that implied he was guilty of killing the two victims, counsel's failure to present letters from a prosecution witness that would have exonerated him, and counsel's failure to move for the trial judge's recusal. Answer, Appendix D at 15-16.

Respondent acknowledges that petitioner raised the claim on his direct appeal, but argues that he presented the issue in such a conclusory fashion that the issue was not adequately before the state appellate court. Further, respondent argues that the appellate court was referring to this aspect of the claim when stating "[t]o the extent that defendant's contention concerning ineffective assistance of counsel arises from matters outside the record, the facts underlying that contention should be developed through a postjudgment motion under CPL article 440 . . . ." People v. Hammock, 255 A.D.2d 957, 959 (citations omitted), and Answer, Memorandum of Law at 1-2. Respondent avers that, because petitioner did not pursue a collateral attack regarding this claim, he has not exhausted the claim.

The state appellate court determined that the issue regarding the allegedly exculpatory evidence was not properly before the court on direct appeal, and directed petitioner to pursue his claim in a collateral attack. See Lloyd v. Walker, 771 F. Supp. 570, 574 (E.D.N.Y. 1991) (Exhaustion requirement met where state collateral review had been obtained through filing of a motion to vacate judgment, pursuant to N.Y.Crim.Proc.L. § 440.10, followed by eventual appeal to New York Court of Appeals). CPL § 440.10 provides that "[a]t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment . . . ." N.Y. CPL § 440.10(1). Petitioner's ineffective assistance of trial counsel claims based on the failure to produce evidence should have been raised by a CPL § 440.10 collateral attack in the trial court. Petitioner did not pursue such an avenue, and therefore has not adequately exhausted his state court procedures. Nevertheless, federal courts may deny an application on the merits, notwithstanding a petitioner's failure to exhaust state court remedies. 28 U.S.C. § 2254(b)(2). This allows courts to deny ...

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