The opinion of the court was delivered by: Henry Pitman, Magistrate Judge
On June 4, 2003, I issued an Amended Report and Recommendation ("Am. R & R") in this case recommending that the petition for a writ of habeas corpus be denied in its entirety.*fn1
Although agreeing with my ultimate recommendation that the petition be denied, respondents objected to parts of the Amended R & R, arguing, among other things, that I erred in concluding "that a state court's decision based on New York Criminal Procedure Law § 440.10(2)(a) is not a disposition on independent and adequate state grounds" sufficient to preclude federal habeas review (Respondents' Memorandum of Law ("Respondents' Mem."), at 2, annexed to affidavit of Cheryl D. Harris Object[ing] to Magistrate's Report and Recommendation, sworn to June 6, 2003). [ Page 2]
Treating respondents' objection as a motion to reargue this aspect of my Amended R & R, the motion is denied for the following reasons.
New York Criminal Procedure Law Section 440.10(2)(a) provides:
2. [T]he court must deny a motion to vacate a
(a) The ground or issue raised upon the motion
was previously determined on the merits upon
an appeal from the judgment, unless since the
time of such appellate determination there
has been a retroactively effective change in
the law controlling such issue
(N.Y. Crim. Proc. L. § 440.10(2)(a)).
Upon review of respondents' objection, I write to clarify my conclusion that "the denial of a motion pursuant to Section 440.10(2)(a) is a disposition that does not result in a procedural bar" (Am. R & R at 51). Although I agree that under some circumstances the denial (or prospective denial) of a claim pursuant to Section 440.10(2)(a) can result in a claim being procedurally barred, none of the circumstances that would give rise to a procedural bar were present in this petition. Whether Section 440.10(2)(a) gives rise to a procedural bar appears to turn on whether the claim in issue was properly exhausted for the purposes of federal habeas review.
For example, let us assume that a defendant raises his or her claims on direct appeal, where they are denied on the [ Page 3]
merits by the New York Court of Appeals. Thereafter, defendant raises a new claim through a Section 440.10 motion to vacate and erroneously re-asserts the same claims asserted on direct appeal. Pursuant to Section 440.10(2)(a), the court must deny the claims that were raised on direct appeal because they were "previously determined on the merits upon an appeal from the judgment." Here, Section 440.10(2)(a) operates as a procedural device to prevent a defendant from relitigating his or her claims in a state court collateral attack once they have been decided on direct appeal. However, since the claims were raised on direct appeal to the highest court in New York, there is no logical reason why their erroneous assertion in a state collateral proceeding should give rise to a procedural bar.
Under other circumstances, however, a dismissal pursuant to Section 440.10(2)(a) would give rise to a procedural bar. For example, assume a defendant raises his or her claims in the Appellate Division, where they are denied on the merits, but fails to assert these claims before the New York Court of Appeals. Thereafter, the defendant attempts to raise the same claims denied on direct appeal by way of a Section 440.10 motion. Here, defendant's claims are also denied on the basis of Section 440.10(2)(a) since they were "previously determined on the merits upon an appeal from the judgment." However, in this situation, on federal habeas review, the claims should be found to be [ Page 4]
exhausted, but procedurally barred, because the claims can no longer be asserted in the state courts. In this example, the claims would not have been appealed to the highest court in New York on direct appeal and state collateral relief pursuant to Section 440.10 is unavailable.*fn2
I concluded that the situation presented in this case was indistinguishable from the former example. In support of my conclusion that Section 440.10(2)(a) does not constitute a procedural bar under these circumstances, I cited the following passage from Taylor v. Kuhlmann, 36 F. Supp.2d 534, 546 (E.D.N.Y. 1999):
"A dismissal under § 440.10(2)(a) is not based
on any procedural default. To the contrary, it is
premised on a prior decision." Anderson v.
Scully, No. Civ. 90-0171, 1991 WL 156234 at
*3 (Aug. 7, 1991 S.D.N.Y.); see also,
Hartley v. Senkowski, No. Civ. 90-0395,
1992 WL 58766 at *10 (Mar. 18, 1992 E.D.N.Y.) ("A
procedural rule such as § 440.10(2)(a) acts
neither as a procedural bar nor as a decision on
the merits."). Thus, this "subsection applies only
to claims that have been previously decided on the
merits and does not constitute a state law ground
for dismissal that is independent of the merits of
petitioner's federal claims." Anderson,
1991 WL 156234 at *3, citing, Ylst v.
Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590,
115 L.Ed.2d 706 (1991). Therefore, since the trial
court expressly relied on CPL § 440.10(2)(a)
to deny petitioner's application,
[ Page 5]
it cannot be said that the court relied
on a procedural bar, and this court is not
precluded from turning to the merits of these
Respondents argue that "the Eastern District has taken an opposite position in decisions subsequent to Taylor" (Respondents' Mem. at 6, citing Artuz v. Bennett, 531 U.S. 4, 10 (2000); Jelinek v. Costello, 247 F. Supp.2d 212, 288 (E.D.N.Y. 2003); Katowski v. Greiner, 212 F. Supp.2d 78, 88 (E.D.N.Y. 2002); Harris v. Artuz, 99 Civ. 5019 (SAS), 2000 WL 358377 at *2-*3 (S.D.N.Y. Apr. 7, 2000)). However, these cases are distinguishable from the facts presented in this petition and, for the most part, are examples of the second set of facts described above which do not affect the holding in Taylor v. Kuhlmann.
First, in Artuz v. Bennett, supra, 531 U.S. at 10, as respondents correctly assert, the Supreme Court does describe Section 440.10(2)(a) as a state procedural bar. The decision explains that as a result of this state procedural bar, "[m]otions to vacate that violate [this] provision will not be successful. . . ." Artuz v. Bennett, supra, 531 U.S. at 10 (emphasis added). The issue in Artuz v. Bennett, however, was the timeliness of the petition; not whether a claim denied pursuant to Section 440.10(2)(a) is procedurally barred on federal habeas review. Thus, the Supreme Court's characterization of Section 440.10(2)(a) is dicta. [ Page 6]
Second, the habeas corpus cases that have found Section 440.10(2)(a) to constitute a procedural bar have all involved situations where the claim in issue was not completely exhausted on direct appeal. For example, in Harris v. Artuz, supra, 2000 WL 358377 at *2-*3, the Honorable Shira A. Scheindlin, United States District Judge, found the petitioner's "third claim" was procedurally barred under Section 440.10(2)(a) because he "only raised his third claim on direct appeal to the Appellate Division" and "never sought leave to appeal to the New York Court of Appeals." Judge Scheindlin noted that Section 440.10(2)(a) prevented petitioner from attempting to exhaust this claim by way of a 440.10 motion to vacate. ...