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United States District Court, Southern District of New York

September 2, 2003


The opinion of the court was delivered by: Lewis Kaplan, District Judge


Lionel Ledesma, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because petitioner has filed a so-called "mixed petition," the petition hereby is stayed in order to permit him to exhaust his state remedies.


Petitioner was convicted after a jury trial of attempted manslaughter in the first degree and assault in the first and second degrees. He appealed his conviction and sentence to the New York State Appellate Division, arguing that: (1) his conviction for attempted first-degree manslaughter should be vacated because it is a non-existent crime for which a verdict cannot be rendered; (2) he was denied effective assistance of counsel by virtue of his lawyer's failure to cross-examine the alleged victim, failure to make various objections, and failure to call eyewitnesses; (3) the prosecutor failed to prove the charges of assault beyond a reasonable doubt; (4) he was denied a fair trial by virtue of the trial court's failure to inquire into possible juror misconduct; (5) the prosecutor improperly inflamed and prejudiced the jury and denigrated the defense and the defendant; (6) the trial court improperly admitted into evidence inflammatory photographs; (7) the trial court's charge on justification was incorrect; and (8) the sentence was unduly harsh. Pet. Ex. A.

On December 10, 2002, the Appellate Division unanimously affirmed Petitioner's conviction.*fn1 As to the ineffective assistance of counsel claim, the court stated: Page 2

"Since defendant's claim of ineffective assistance of counsel primarily involves matters outside the record, including trial counsel's strategic decisions as to whether to call certain witnesses, it should have been brought by way of a CPL 440.10 motion. To the extent the existing record permits review, it establishes that counsel pursued reasonable strategies and that defendant received meaningful representation."*fn2
Petitioner sought leave to appeal to the Court of Appeals on all of the grounds previously raised. The Court denied petitioner's application on June 18, 2003 (Ciparick, J.).

Petitioner filed this petition on or about July 12, 2003. He raises the same claims raised before the Appellate Division and Court of Appeals.


The Antiterrorism and Effective Death Penalty Act ("AEDPA") governs this petition. 28 U.S.C. § 2254. Under § 2254(b) (1) (A), a writ of habeas corpus may not be granted unless, inter alia, a petitioner has exhausted all available state remedies. To exhaust an ineffective assistance of counsel claim, "all allegations must be presented to the state court through an appropriate procedural vehicle, thus allowing the court to examine all of the circumstances and cumulative effect of the claims."*fn3 As the Appellate Division noted in its brief opinion, the proper procedural vehicle for bringing an ineffective assistance of counsel claim involving matters outside the record is by motion to the trial court to vacate the judgment under N.Y. CRIM. PROC. LAW § 440.10.*fn4

As the Appellate Division's denial of petitioner's ineffective assistance of counsel claim was based solely on the trial record, and petitioner's claim encompasses matters outside the record, the Appellate Division was not able to rule fully on the merits of the claim. A section 440.10 motion is still available to Petitioner. Accordingly, his ineffective assistance of counsel claim remains unexhausted. Page 3

Outright dismissal of petitioner's claims pending exhaustion of his unexhausted claim could foreclose federal review because of the AEDPA's one-year limitations period. The Second Circuit therefore permits district courts to stay the exhausted portion of a petition and direct the petitioner to exhaust or withdraw his remaining claims.*fn5

Accordingly, the petition is stayed to permit petitioner to seek appropriate collateral relief in state court. The stay is issued on the following conditions: (1) within thirty (30) days of the date of this Order, petitioner must file the appropriate motion in state court seeking collateral review of the unexhausted claim under N.Y. CRIM. PROC. LAW § 440.10 or advise the Court that he wishes to proceed only on the exhausted claims; and (2) within thirty (30) days after the state courts have completed their review of his unexhausted claim, petitioner must file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition. If petitioner fails to fulfill both of these conditions, the Court may vacate the stay nunc pro tunc as of the date of this Order, and the petition may be dismissed.*fn6

This action hereby is transferred to the suspense docket pending further order of this Court.


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