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United States District Court, Southern District of New York

April 28, 2003


The opinion of the court was delivered by: Michael H. Dolinger, United States Magistrate Judge


Petitioner Manuel Pena seeks a writ of habeas corpus to challenge his 1995 conviction in New York State Supreme Court, New York County, on a charge of Attempted Burglary in the Second Degree. The trial court found Pena to be a persistent violent felony offender and sentenced him to an indeterminate prison term of fifteen years to life.

By his petition, Pena asserts eight grounds to vacate his conviction, several of which involve complaints about his attorneys' performance at trial and on appeal. First, Pena argues that he was denied the effective assistance of trial counsel because his attorney failed to object to the sufficiency of evidence before the grand jury. Second, he argues that the State failed to make full disclosure of Rosario material and complains that defense counsel failed to object to the States nonproduction. Third, he asserts that the prosecutor erroneously failed to seek a court ruling before introducing evidence of uncharged crimes. Fourth, Pena argues that he received ineffective assistance of counsel due to counsel's failure to comply with the mandates of People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922 (1993), when seeking Dunaway/Wade and Huntley hearings. Fifth, he asserts that his right to appeal was abridged through ineffective assistance of appellate counsel. Sixth, he argues he was denied his right to a full Fourth Amendment hearing under Dunaway. Seventh, he argues that the mandates of N.Y.C.P.L § 440.10 are constitutionally infirm because they limit the petitioner's right of access to the court by allegedly suspending the state writ of habeas corpus. Finally, he complains that under state judicial practice, he has no access to copies of any trial records.

Respondent argues that the first four claims are procedurally barred and otherwise meritless. He argues that petitioner's remaining four claims have yet to be exhausted in state court, and are also meritless.

For the reasons outlined below, we conclude that all except one of petitioner's claims are without merit and dismiss those claims with prejudice.*fn1 We further conclude that petitioner's fifth asserted ground for relief — for ineffective assistance of appellate counsel — is unexhausted and should therefore be dismissed without prejudice.

Prior Proceedings

Pena's conviction stems from a May 16, 1995 attempted entry by an intruder into a second-floor apartment at 233-235 Henry Street in Manhattan. (See Appellant's Brief ("App's Br.") at 5-6; Respondent's Brief ("Resp't's Br.") at 1-2). Petitioner was arrested after Henara Cruz, a resident of the apartment, identified him at the scene as the man who had attempted to enter her apartment from a ledge outside the building.

1. Indictment and Pre-Trial Hearings

On May 19, 1995, a New York County grand jury returned an indictment charging petitioner with Attempted Burglary in the Second Degree under N.Y. Penal Law §§ 110.00, 140.25(5). (See App's Br. at 5; Resp't's Br. at 2).

Before trial commenced, defense counsel moved to suppress the on-the-scene identification of Pena by Cruz, and also moved to suppress an on-the-scene admission Pena allegedly had made to Cruz's sister. On September 27, 1995, the Honorable Budd G. Goodman, S.C.J., held a combined Dunaway/Wade hearing to determine whether police officers had had probable cause to arrest Pena and whether the "show-up" identification before Cruz had been unduly suggestive. (Transcript of Dunaway/Wade hearing ("Dun.") at 8-10).*fn2

Testimony at the hearing established that on May 16, 1995, at approximately 3:30 p.m., the police had received a radio run of a burglary in progress by a male Hispanic, twenty years old, wearing a white t-shirt and a black leather vest. (Dun. at 19-20). Sergeant Allen Cooper responded to the call, as did Police Officer Kenneth Perez. (Id. at 18-19, 66-67)

Upon arrival at the scene, Sgt. Cooper saw the complainant in her apartment window; she threw him her keys to unlock the front door of her apartment building. (Id. at 21-23). In her apartment, Ms. Cruz told the officers that a man had tried to enter her bedroom but had run away. (Id. at 23). Ms. Cruz also provided a further description of the intruder — a male Hispanic, twenty years old, five foot seven to five foot ten in height, thin build, medium skin, wearing blue jeans, white sneakers, white t-shirt, and a black vest.*fn3 (Id. at 24, 73). Sgt. Cooper subsequently broadcast this description over the police radio. (Id. at 24).

Sgt. Cooper then left Ms. Cruz in her apartment and proceeded to the roof of her building, which adjoined the roof of the building next door, 231 Henry Street. (Id. at 25). Sgt. Cooper then broadcast instructions for officers to search the adjacent building. (Id. at 25-26). When P.O. Perez tried to enter 231 Henry Street, he found the front door locked. (Id. at 69). However, Officer Perez remained by the building's door, and after approximately five minutes, he observed Manual Pena leaving the building. (Id. at 70).

Pena "somewhat" matched the description given by Cruz — he was a male Hispanic, approximately five foot ten, wearing blue jeans. (Id. at 27, 83-84). However, Pena was wearing black boots (not white sneakers), a plaid shirt (not a white t-shirt), and a black jacket (not a black vest). (Id.).

P.O. Perez asked Pena what he was doing in the building. (Id. at 70). Pena responded that he had been visiting a friend. (Id.). Upon request, Pena took Officer Perez to the apartment where his friend allegedly lived. (Id. at 70-71). When nobody answered the door at the apartment, P.O. Perez radioed in a request for a further description of the suspect. (Id. at 73-74). No further details were provided, but Sgt. Cooper instructed Officer Perez to bring Pena to the front of the building for a "show up". (Id. at 27, 74)

Once Pena was in front of the building, Sgt. Cooper brought Ms. Cruz to a window overlooking the scene and asked her if Pena was the person who had attempted to enter her apartment. (Id. at 30). At the time, Pena was not in handcuffs, but several uniformed and plainclothes officers were standing close to him. (Id. at 53-54). When Ms. Cruz first viewed Pena, she stated that she was unsure whether he was the intruder. (Id. at 31). She twice asked to see profile views of the suspect. (Id.). When she saw Pena's left profile, she positively identified him as the intruder. (Id.). Pena was thereafter handcuffed and placed under arrest. (Id. at 32).

Justice Goodman denied Pena's motion to suppress in its entirety, finding that probable cause had existed for his arrest and that the "show-up" had not been unduly suggestive. (Id. at 97-99). The court apparently credited the testimony of the officers in making this determination. (Id. See also App's Br. at 7; Resp't's Br. at 7).

2. Trial Proceedings

Jury selection proceeded before Justice Goodman on October 3, 1995, and the trial began on October 6, 1995. (Tr.I*fn4 at 13, 102).

Henara Cruz testified that she had been at home on May 16, 1995 when she saw a man on the ledge of her building attempting to enter her apartment through a partially-open window. (Tr.II at 64-65). Upon seeing this, Cruz coughed and made other noises to scare away the intruder, which apparently succeeded in causing him to retreat. (Id. at 67-69). During her testimony, Cruz identified petitioner in open court as the man who had attempted to enter her apartment. (Id. at 68). Ms. Cruz further testified that Pena had been wearing blue jeans, black sneakers, a striped shirt, a black leather vest, and glasses on the day of the incident. (Id. at 76). On cross-examination, Ms. Cruz denied ever telling the police that the intruder had worn white sneakers and a white t-shirt. (Id. at 98-99)

Sgt. Cooper and P.O. Perez recounted the sequence of events of the day in their testimony, which was substantially similar to that given at the Dunaway/Wade hearing described above. However, upon cross-examination, Sgt. Cooper admitted that he did not have a description of the suspect until he personally interviewed Ms. Cruz — and that his previous testimony to the contrary had been mistaken. (Id. at 22, 28-29). Furthermore, both Sgt. Cooper and Officer Perez recounted on cross-examination that Ms. Cruz's description to them had been of a male Hispanic, twenty years old, wearing a white t-shirt, white sneakers, and black vest, with no mention of glasses. (Id. at 31-33, 183-84)

Henara Cruz's sister, Maricella, also gave testimony. She explained that she resided in the same apartment with Cruz and that she had been previously acquainted with petitioner. (Id. at 121, 131-33). On the day of the crime, she had noticed police activity in front of her building after a stroll in Tompkins Square Park. (Id. at 126-28). Maricella ran upstairs to her apartment, found her sister in a hysterical condition, and tried to calm her down. (Id. at 128-29). When Maricella saw Pena being detained in front of her building, she went downstairs and confronted him with angry curses and questions about what he had done. (Id. at 131-32). According to Maricella, petitioner responded, "I'm sorry. I didn't know it was your apartment . . . I'm sorry MC." (Id. at 132).

Police Officer Dennis Morales also testified about the general sequence of events leading to the "show-up" and arrest of Pena. On direct, P.O. Morales stated that he had arrived on the scene approximately one minute after the radio call, and that nobody had left any of the buildings in the vicinity of 233-235 Henry Street after he arrived. (Tr.I at 200, 213-14). Upon cross-examination, Morales admitted that he had previously told Detective Lopez that he had indeed seen people exiting the building. (Id. at 220-23). Officer Morales maintained that his earlier statement had been a mistake. (Id. at 221)

Police Officers Dean Leser and Kaymoon Shen provided corroborating testimony about the general sequence of events leading to Pena's arrest. Police Officer Charles Covatti recounted that he had searched for fingerprints at the crime scene, but had been unable lift any prints due to "dirt and grime." (Tr.II at 220)

In closing argument, defense counsel stressed the inconsistencies between the testimony of Henara Cruz and that of Sgt. Cooper. (Tr.II at 243-50). Counsel also focused on the weakness of Cruz's identification testimony and argued that the "show-up" had been unduly suggestive. (Id. at 248-60). Finally, counsel attacked the credibility of the People's witnesses and highlighted contradictions that had been brought out on cross-examination. (Id. at 260-77).

In his closing argument, the prosecutor stressed the strength and simplicity of the case against Manuel Pena. (Id. at 278-305).

On October 16, the jury convicted petitioner of Attempted Burglary in the Second Degree. (Id. at 353). On November 9, 1995, Justice Goodman sentenced Pena, a persistent violent felony offender, to an indeterminate prison term of fifteen years to life. (Transcript of sentencing hearing dated November 9, 1995 ("Sen.") at 14)

3. Collateral Proceedings & Direct Appeal

Petitioner's first effort at attacking his conviction was a pro se motion made pursuant to N.Y.C.P.L. § 440.10. On May 8th, 1998, Pena filed his section 440.10 motion. (See Section 440 Decision dated August 10, 1998 ("440 Dec."), annexed as Ex. F to Affidavit of Hillary A. Tennant, Assistant Attorney General, sworn to January 23, 2001 ("Tennant Aff."); Notice of Motion to File Supplemental Brief dated October 23, 1998 ("Supp. Br."), annexed as Ex. G to Tennant Aff). Pena advanced three grounds for relief: (1) that he had been denied effective assistance of trial counsel because his attorney (a) had "failed to object to the insufficiency of the evidence" presented to the grand jury, and (b) had failed to include factual allegations in support of his motion seeking suppression of evidence; (2) that the State had failed to comply with its Rosario obligations by making available pretrial statements of prosecution witnesses; and (3) that the State had failed to seek a pretrial ruling under People v. Ventimiglia, 52 N.Y.2d 350, 438 N.Y.S.2d 261 (1981), authorizing its introduction of evidence of uncharged crimes. (440 Dec. at 1)

In July 1998, while Pena's pro se motion was pending, his appellate counsel appealed petitioner' s conviction to the Appellate Division, First Department. In his appellate brief, petitioner's attorney argued: (1) that Pena's guilt had not been proven beyond a reasonable doubt; (2) that the police had lacked probable cause to arrest him; (3) that the police-arranged show-up had been unduly suggestive; and (4) that his sentence of fifteen years to life was unduly harsh and should be reduced. (App's Br. at 10-19).

On August 10, 1998 Justice Goodman ruled on Pena's pro se section 440.10 motion, denying it in its entirety. (440 Dec. at 1). The court concluded that Pena's motion suffered from two technical defects that independently required dismissal without regard to the merits of Pena's claim. First, the court held that petitioner's motion papers lacked any factual allegations tending to substantiate his claims, despite the requirement of section 440.30 that the moving party provide sworn allegations of fact. (Id. at 1-2) (citing N.Y.C.P.L. § 440.30(4)(b)). Second, the court concluded that Pena was procedurally barred from obtaining relief under section 440.10, since sufficient facts appeared in the record to permit direct appellate review of all of his claims. (Id. at 2) (citing N.Y.C.P.L. § 440.10(2)(c)).

Despite these defects, the court also proceeded to reject Pena's claims on the merits. With regard to the ineffective-assistance claims, the court held that Pena had failed to show that he had suffered any prejudice as a result of his counsel's conduct or that the alleged omissions were not merely part of counsel's trial strategy. (Id. at 3). Moreover, the court noted: (1) that defense counsel had requested that the court review the sufficiency of the evidence presented to the grand jury (Id. at 4); and (2) that the failure to provide sufficient allegations in support of a request for a suppression hearing cannot, as a matter of law, constitute ineffective assistance. (Id.) (citing People v. Wall, 531. N.Y.S.2d 383, 142 A.D.2d 883 (3d Dep't 1988)). With respect to Pena's two other claims, the court held that he had failed to show any prejudice from the alleged Rosario violations, and that a Ventimiglia hearing had been unnecessary before "introduc[ing] into evidence a witness' testimony describing the defendant's actions during the crime being tried." (Id. at 4-5).

On October 23, 1998, with Pena's appeal still pending in the Appellate Division, he filed a motion with the First Department seeking: (1) approval to file a supplemental brief; (2) review of the trial court's denial of his section 440.10 motion; and (3) consolidation of that appeal with his pending direct appeal from the conviction and sentencing. (Supp. Br.). In support of the application, Pena reiterated the grounds that he had asserted in his section 440.10 motion and also added nine new claims. The new claims were: (1) that the trial court, in considering his section 440.10 motion, had erred in disregarding sworn testimony due to the lack of notary services at the facility; (2) that Justice Goodman should have recused himself in deciding the section 440.10 motion; (3) that the court misapplied the mandates of N.Y.C.P.L. § 240.43 and Ventimiglia by allegedly allowing the State to introduce evidence of uncharged crimes without a hearing; (4) that the State had erred in redacting sections of disclosed Rosario material; (5) that the trial court had improperly withheld transcripts of the grand jury proceedings from him; (6) that the court had erred in holding that defense counsel's omission of factual detail in his suppression motion papers had been harmless; (7) that the court had failed to appropriately respond to petitioner's complaints about his attorney's conduct and representation; (8) that the court had erred in not requiring a hearing on his motion to vacate; and (9) that these issues could not have been raised on direct appeal because they depended upon evidence outside of the record. (Id. at p. 7-10)

On December 29, 1998, the Appellate Division denied Pena's motion for leave to appeal the trial court's decision on his section 440.10 motion and denied his request to file a supplemental brief. (Certificate Denying Leave dated December 29, 1998, annexed as Ex. I to Tennant Aff.). The court held that Justice Goodman's August 10, 1998 decision on Pena's pro se section 440.10 motion presented "no question of law or . . . which ought to be reviewed." (Id.). The court did not specifically address Pena's application to file a supplemental brief on his direct appeal.

On July 1, 1999, the Appellate Division rejected petitioner's direct appeal and affirmed the conviction and sentence. People v. Pena, 263 A.D.2d 363, 693 N.Y.S.2d 538 (1st Dep't 1999) The court concluded:

Defendant's suppression motion was properly denied in all respects. During the initial police encounter when defendant exited the building adjoining the crime scene, he was asked what he was doing in the building. He then voluntarily accompanied the officers to the apartment that he claimed to have been visiting. At no time was he physically restrained or told that he was under arrest. These circumstances constituted, at most, a common-law inquiry . . . There was ample foundation f or such an inquiry, since defendant partially matched the description, radioed minutes earlier, of the perpetrator of a burglary in progress, and was the only person present. When his explanation was brought into question by the absence of anyone in the apartment to which he brought the officers, defendant was properly detained for a prompt on-the-scene show. . . . We do not find the showup to have been unduly suggestive.
Id. (internal citations omitted). The court also concluded that Pena's verdict "was based on legally sufficient evidence and was not against the weight of the evidence." Id. Finally, the court conveyed that it "perceive[d] no abuse of sentencing discretion." Id. at 364.

On July 30, 1999, petitioner sought leave to appeal to the New York Court of Appeals. (See Exhibit D annexed to Tennant Aff.). In his pro se application, Pena requested the Court of Appeals to review: (1) all the claims he had asserted in his section 440.10 motion and subsequently reasserted in his application to file a supplemental brief; (2) his claims that his appellate counsel had been ineffective, and that the Appellate Division had failed to act upon his complaints to that effect; and (3) his claim that his trial attorney, appellate counsel, and the justices of the Appellate Court had all failed to uphold their constitutional duties towards him. (Id. at p. 2-20).

On November 16, 1999, the Court of Appeals denied petitioner's application in a one-word order. People v. Pena, 94 N.Y.2d 827, 702 N.Y.S.2d 598 (1999)

on January 14, 2000, Pena filed a petition for a writ of habeas corpus in New York State Supreme Court, Westchester County. In his petition, Pena asserted: (1) that the state's processes governing the assignment of counsel to an accused are constitutionally infirm; (2) that the mandates and provisions of section 440.10 are constitutionally infirm because it limits a criminal defendant's access to the courts; (3) that the court erred in denying him a Ventimiglia hearing; (4) that the Appellate Division had violated his constitutional rights by refusing to review his claims without setting forth its findings; (5) that his right to appellate court review had been denied when his appellate attorney filed a brief that did not include issues that he had wanted to raise; (6) that his right to appellate review was denied when counsel left issues unpreserved for appellate court review; (7) that his right to appellate review was abridged when the Appellate Division denied his request to file a supplemental brief; (8) that his right to appellate review was abridged by the Court of Appeals when it failed to consider his pro se constitutional arguments about the denial of his rights; and (9) that the totality of these practices had deprived him of his statutory rights to challenge his conviction. (See Habeas Petition at 6-10; Resp't's Memo at 7).

The state court denied his application for a habeas writ on May 25, 2000. (Decision and Order dated May 25, 2000 ("State Habeas Dec.")). The court initially held that petitioner' s habeas petition did not lie because his "various claims have been (or could have been) the subject of his appeals and/or CPL § 440.10 motion or they should have been brought in a common-law coram nobis proceeding." (Id. at 4). Additionally, the court held that petitioner was not entitled to habeas relief because "the relief or remedies available to [him] as established by his framing of the issues in his papers would not result in his immediate release." (Id.)

On June 27, 2000, the Pro Se Clerk's Office of this court received petitioner's current application for a federal writ of habeas corpus.


As noted, on his current petition Pena has asserted eight claims in attacking his conviction.

A. Petitioner's First Four Claims

1. Procedural Bar

Under the procedural-bar doctrine, a federal court may not undertake "review of any state court decision that `rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Cox v. Miller, 296 F.3d 89, 100 (2d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The doctrine "applies whether the state law ground is substantive or procedural." Coleman, 501 U.S. at 729. However, there is a presumption that no procedural bar exists where "the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Id. at 734-35. This presumption can be overcome by a "plain statement" by the state court that its decision rests on a state procedural bar. Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)

Respondent argues that petitioner's first four claims are procedurally barred since he raised the exact same claims before the state trial court in his section 440.10 proceeding, and the court "explicitly held that petitioner was `procedurally barred from obtaining relief . . .', because he failed to raise these issues on direct appeal." (Resp't's Memo at 12 (quoting 440 Dec. at 2) (emphasis in original)). Respondent further contends that Pena cannot show cause for his default or prejudice resulting therefrom, and that Pena cannot prove that a fundamental miscarriage of justice would result if his claims were found procedurally-barred. (Resp't's Memo at 12-13)

The procedural history of this case is more complicated than respondent implies. Pena maintains that he asked his appellate attorney to raise the contested four claims on direct appeal, but to no avail. (Habeas Petition at 21-22). As a consequence, Pena raised them pro se by a section 440.10 motion. Pena actually moved under section 440.10 before his appellate attorney filed his brief on direct appeal.

When Justice Goodman explicitly held that Pena's section 440.10 claims were procedurally barred, all that he was saying was that the claims should have been asserted on Pena's direct appeal. At that time, petitioner's direct appeal was still pending, and accordingly, having been instructed by the court that his section 440.10 claims needed to be raised on direct appeal, Pena presented those claims to the appellate court by requesting leave from the Appellate Division to file a supplemental pro se brief on his direct appeal, consolidating his section 440.10 claims with his pending appeal. Then, as noted, the Appellate Division denied Pena's request.

In so doing, the Appellate Division did not state that Pena's application to consolidate his section 440.10 claims with his pending appeal was barred under state procedural law. The court's only clear holding was that Justice Goodman's August 10, 1998 decision on Pena's pro se section 440.10 motion presented "no question of law or fact . . . which ought to be reviewed." This ruling cannot be read to be a "plain statement" of an independent state procedural bar. See, e.g., Harris v. Reed, 489 U.S. 255, 263 (1989); Jones, 229 F.3d at 118. Moreover, insofar as the court effectively denied Pena the opportunity to have his claims heard on the direct appeal, it is not clear that the ground for the denial was "adequate."*fn5

After the Appellate Division denied petitioner' s direct appeal on the grounds raised by counsel, Pena sought review from the Court of Appeals. In his application, Pena once again raised his section 440.10 claims and protested the Appellate Division's decision to deny his request to file a supplemental brief consolidating those claims with his direct appeal. The Court of Appeals denied Pena review without analysis or reference to procedural bars.

Given this record, we conclude that Pena is not procedurally barred from raising his first four claims in this court. He attempted to raise the claims with both the Appellate Division and the Court of Appeals, and neither of these courts suggested the existence of a procedural bar.*fn6 Justice Goodman's clear statement in his section 440.10 decision preceded this history and consequently cannot be relied upon as holding conclusively that petitioner could not obtain merits review of his claims in the state-court system.

2. The Merits of the Claims

Since Pena's first four claims are not procedurally barred, we now consider them on the merits.*fn7

(a). State Grand Jury/Ineffective Assistance of Counsel Claim

In ground one of his petition, petitioner claims that there was insufficient evidence before the grand jury to support his indictment, and that he was denied effective counsel by his attorney's failure to object to that insufficiency of evidence.

The first part of this claim is not cognizable on habeas review since claims regarding state grand jury proceedings raise no federal constitutional issues. See Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (since Fifth Amendment right to grand jury was not incorporated by Fourteenth Amendment, there is no federal right to a grand jury in state criminal proceeding); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) ("federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, [and] similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack.")

The fact that Pena's underlying claim is not cognizable does not automatically bar us from considering the second part of his claim — that he was deprived of effective assistance when his counsel failed to object to the sufficiency of evidence before the grand jury. See Kimmelman v. Morrison, 422 U.S. 365, 383 (1986) ("[w]e hold that federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error")

The Supreme Court has defined a two-part test for evaluating ineffective-assistance-of-counsel claims. See Strickland v. Washington, 466 U.S. 668 (1984). First, "the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, "the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. While a petitioner must prove both incompetence and prejudice, "there is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.

It bears emphasis that the Strickland standard is quite deferential, and that a claim of constitutional dimension does not arise unless a lawyer's error is so egregious as to amount to a failure to provide minimal professional representation. Thus, a habeas court weighing an ineffective-assistance claim "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . . and must `determine whether, in light of all the circumstances, . . . [counsel's] acts or omissions were outside the wide range of professionally competent assistance.'" Strickland, 466 U.S. at 690. Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 192 (2d Cir. 2001) In making this determination, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.

The burden of proving prejudice is equally onerous. As noted, the petitioner must demonstrate "a reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different. "A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal." Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (citing Strickland, 466 U.S. at 694)

In this case, petitioner fails to satisfy either prong of his Sixth Amendment challenge. First, petitioner's counsel cannot be said to have been deficient because — in spite of Pena's claim to the contrary — he apparently did object to the sufficiency of the evidence before the grand jury. (See 440 Dec. at 4). Second, even if we assume that counsel failed to object, Pena cannot prove prejudice from this failing. Petitioner concedes that Henara Cruz testified before the grand jury that she had seen him attempting to enter her apartment. (Habeas Petition at 12). Ms. Cruz's testimony was also the lynchpin of the case presented against Pena at trial, which was sufficient to persuade the jury to convict Pena.*fn8 Given Cruz's critical testimony before the grand jury, it is impossible to conclude that, but for counsel's alleged failure to object, the grand jury would have declined to return an indictment against Pena, or that any indictment would have been found legally insufficient, or that the outcome of Pena's trial would have been different.

In view of these failings, petitioner's first claim is dismissed with prejudice.

(b). Rosario/ Ineffective Assistance of Counsel Claim

In ground two of his petition, petitioner claims that the State erred in failing to fully disclose Rosario material*fn9, and that he was denied effective assistance of counsel when his attorney failed to object to these alleged Rosario violations on the part of the State.

Once again, the first part of this claim is not cognizable on habeas review. "[F]ederal courts have consistently held that Rosario claims are not subject to federal habeas corpus review because they arise exclusively under state law." Moe v. Walker, 1999 WL 58691, at *4 (S.D.N.Y. Feb. 5, 1999) (citing cases). See also Alston v. Ricks, 2003 WL 42144, at *6 (S.D.N.Y. Jan. 7, 2003); Johnson v. Filion, 232 F. Supp.2d 98, 100 (S.D.N.Y. 2002).

Petitioner's claim that his trial counsel was ineffective for failing to object to the allegedly incomplete Rosario disclosures is also well wide of the mark. Initially, we note that Pena does not claim that no materials were disclosed to counsel — only that some of the disclosed materials contained deleted or whited-out sections. However, Pena does not allege that any of the censored portions*fn10 of the Rosaria materials contained exculpatory information. Without such an allegation, we cannot conclude that trial counsel's failure to object was unprofessional error or that it could have prejudiced Pena's defense. Accordingly, Pena's second claim is dismissed with prejudice.

(c). Ventimiglia Claim

In ground three of his petition, petitioner claims that the State failed to seek a Ventimiglia*fn11 ruling before introducing evidence of "uncharged crimes". Pena bases his claim on the fact that the jury heard testimony at trial that could be understood to support charges of trespass or burglary, even though he was not charged with those crimes.

This argument is meritless. First, Ventimiglia claims are rooted in state law, and Pena does not suggest that any of his federal rights were violated by the state's failure to seek Ventimiglia review. In other words, petitioner's claim does not appear cognizable for federal habeas review. See, e.g., Jones v. Artuz, 2002 WL 31006171, at *9 (E.D.N.Y. Aug. 30, 2002) (right to Ventimiglia hearing derives from state law, not federal constitution) Second, and more importantly, the evidence of alleged "uncharged crimes" introduced at trial was an integral part of the sequence of events of the crime with which Pena was charged. As Justice Goodman pointed out in the section 440.10 decision, "Contrary to defendant's contention, a Ventimiglia hearing need not be held to introduce into evidence a witness' testimony describing the defendant's actions during the crime being tried." (440 Dec. at 5) (citing People v. Graves, 598 N.Y.S.2d 885, 194 A.D.2d 925 (3d Dep't 1993)). See also, e.g., United States v. Brennan, 798 F.2d 581, 589 (2d Cir. 1986) (when evidence of uncharged crimes is part of the history of the charged crime, it is admissible); Diaz v. Garvin, 1995 WL 459250, at *2 (S.D.N.Y. Aug. 3, 1995) (finding no violation of federal constitutional rights when evidence of history of crime was introduced without Ventimiglia hearing).

Thus, petitioner's third claim must also be dismissed with prejudice.

(d). Mendoza/ Ineffective Assistance Claim

In ground four of his petition, petitioner claims that he was denied effective assistance of counsel because his attorney failed to comply with People v. Mendoza, 82 N.Y.2d 415, 604 N.Y.S.2d 922 (1993), when seeking Dunaway/Wade and Huntley hearings. Under Mendoza, a defendant moving f or suppression of allegedly unconstitutionally gathered evidence has the burden of alleging sufficient supporting facts on which a hearing can be based.

Since Pena's trial counsel was successful in securing a Dunaway and Wade hearing, it is not clear how he tailed to comply with Mendoza's requirements. However, we read Pena's petition as complaining generally about the conduct of counsel during the suppression hearing. Pena's complaint is without merit.

The record demonstrates that counsel vigorously cross-examined the police witnesses during the Dunaway and Wade hearing and forcefully argued for the suppression of identification testimony. His conduct cannot be said to fall "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Furthermore, even if Pena's counsel had argued with more vigor, Pena has not shown that the outcome would have been any different. The evidence against Pena was clearly strong enough to preclude suppression, and the jury also found the evidence was strong enough to support a guilty verdict.

Because Pena has not proved his trial counsel's performance to be deficient in any meaningful way, his fourth claim is dismissed with prejudice.

B. Petitioner's Fifth Claim: Ineffective Assistance of Appellate Counsel
In ground five of his petition, petitioner claims that his right to appeal was abridged through ineffective assistance of appellate counsel. Specifically, petitioner alleges that his appellate counsel raised "pointless" issues on direct appeal, while failing to press meritorious ones. We conclude that Pena has not exhausted this claim in state court.

It is well established that before seeking federal habeas review, petitioners must exhaust all state judicial remedies. 28 U.S.C. § 2254 (b)(1)(A); Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). However, under the terms of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(2). See Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001)

In this case, petitioner has not properly presented his claim of ineffective assistance of appellate counsel to the state courts. Although he did raise his ineffective-assistance-of-appellate counsel claim in his state habeas petition, the reviewing court noted that a habeas petition was an improper way to raise the issue. (State Habeas Dec. at 3). Instead, "the proper avenue for raising the issue of ineffective assistance of appellate counsel is a common-law coram nobis proceeding brought in the proper appellate Court." (Id.) (citing People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623 (1987)). Since Pena has never raised his ineffective-assistance-of-appellate-counsel claim through a coram nobis application, his claim is unexhausted in state court.

Because the record concerning this claim is unclear at best, we decline to exercise the option under AEDPA of denying an unexhausted claim on the merits. In this regard, we note that there is no time limit for moving for a writ of error coram nobis alleging ineffective assistance of appellate counsel, and thus the remedy is still available. See, e.g., Cowans v. Artuz, 96 F. Supp.2d 298, 304 (S.D.N.Y. 2000) (citing cases). Accordingly, we conclude that Pena's fifth ground, asserting ineffective assistance of appellate counsel, should be dismissed without prejudice. See, e.g., Santana v. Artuz, 2001 WL 47207, at *2 (S.D.N.Y. May 1, 2001); Rodriguez v. People, 2000 WL 962748, at *4-5 (S.D.N.Y. July 11, 2000)

C. Petitioner's Remaining Claims

Although we agree with respondent that petitioner's remaining three claims are all unexhausted, we find that the record is clear that none of the remaining claims has merit. Thus, we exercise the option provided under AEDPA to deny these claims on the merits.

In ground six of his petition, petitioner claims that he was denied his right to a full Fourth Amendment hearing under Dunaway v. New York, 442 U.S. 200 (1979). A Dunaway hearing allows a defendant to litigate whether his detention constituted a "seizure" and whether the police had "probable cause" for seizing him.

If the state "has provided an opportunity for full and fair litigation of a Fourth Amendment claim," the claim is not cognizable on habeas review. Stone v. Powell, 428 U.S. 465, 482 (1976); see also Martin v. McClellan, 2000 WL 640662, at *2 (S.D.N.Y. May 17, 2000); Faber v. Garvin, 2000 WL 869496, at *2 (S.D.N.Y. June 29, 2000). The Second Circuit has repeatedly held that Article 710 of the New York Criminal Procedure Law provides such a constitutionally adequate opportunity. See Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986); McPhail v. Warden, 707 F.2d 67, 69 (2d Cir. 1983); Gates v. Henderson, 568 F.2d 830, 836-37 (2d Cir. 1977), cert. denied, 434 U.S. 1038 (1978)

Petitioner not only had the opportunity to assert the claim, but in fact litigated it at his Dunaway hearing before the trial court and on his section 440.10 motion. He was given the opportunity to litigate issues concerning his detention, his arrest, and the admissibility of identification testimony obtained after he had been detained by police officers at the scene. (Dun. at 64-96). Having had his day in court on this claim on these two occasions, he is precluded from re-litigating it here.

We therefore dismiss ground six of his petition.*fn12

In ground seven of his petition, petitioner claims that the mandates of N.Y.C.P.L. § 440.10 are constitutionally infirm and limit his right of access to the courts. Specifically, petitioner claims that section 440.10(2)(c), which denies collateral relief if facts on the record would have permitted direct appeal of the issue, is in conflict with Art. I, § 4 of the New York State Constitution. Petitioner's claim is that section 440.10(2)(c) suspends the state writ of habeas corpus, in contravention of Art. I, § 4, which forbids suspension of the state writ except in case of rebellion or invasion.

By its own terms, this claim fails to raise an issue of federal constitutional dimension, and therefore is not cognizable on federal habeas review. See McFarland v. Scott, 512 U.S. 849, 861 (1994) ("[F]ederal habeas review exists only to review errors of constitutional dimension."). The alleged conflict is between the state constitution and the state criminal procedure law. It is not the role of this court to review the application of state laws unless they violate the federal constitution in some way; petitioner fails to make such a showing.

Furthermore, we note that the section 440.10(2)(c) prohibition on collateral appeal of issues that could have been directly appealed does not raise any due-process concerns. Indeed, the Second Circuit has specifically held that a court's reliance on section 440.10(2)(c) constitutes an adequate and independent state ground that precludes federal habeas review. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)

Because this claim lacks any federal constitutional dimension, it is dismissed with prejudice.

In ground eight of his petition, petitioner claims that under standard New York judicial practice, he has no way to obtain any court records. Specifically, he complains that he was not provided copies of trial records, such as pretrial hearing minutes and grand jury transcripts. He does not claim that his counsel was not provided copies of the trial record or that his representation was hindered by it, only that he himself received no copies.

Once again, petitioner fails to assert a federal constitutional dimension to this claim. Furthermore, we can imagine no constitutional basis for a right to personal copies of all trial records. Therefore, ground eight of petitioner's petition is dismissed by this Court.


For the reasons stated, we dismiss all except one of petitioner's claims with prejudice. We dismiss petitioner's fifth ground for relief — that his appellate counsel was constitutionally ineffective — without prejudice.

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