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United States District Court, S.D. New York

February 13, 2004.

MICHAEL HERNANDEZ, Petitioner, -against- GARY FILION, Superintendent, Coxsackie Correctional Facility, Respondent

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


Pro se petitioner Michael Hernandez seeks a writ of habeas corpus from his September 22, 1998 conviction in Supreme Court, Bronx County, of first degree assault and fourth degree grand larceny and sentence of sixteen years imprisonment. (Dkt. No. 2: Pet. ¶ 5.) Hernandez's habeas petition alleges that: (1) the trial court erred in allowing testimony of a pre-trial photographic identification (Pet. ¶ 15(A)); (2) volunteered references to Hernandez's prior arrest violated his due process rights (Pet. ¶ 15(B)); (3) he was denied the right to fully cross-examine Detective Lauro (Pet. ¶ 16); and (4) trial counsel rendered ineffective assistance by (a) failing to object to admission of Hernandez's statement to the police and (b) failing to call a police officer who "recorded statements describing the perpetrator as someone other than" Hernandez (Pet. ¶ 17).

For the reasons set forth below, Hernandez's petition should be DENID. Page 2


  On October 13, 1997, Hernandez attacked an 83 year old woman, Florence Schiering, and stole her food stamps and cash in order to buy crack cocaine. (Dkt. No. 6: McGarvey-Depuy Aff. Ex. 4: State 1st Dep't Br. at 5.)*fn1 On October 17, 1997, Hernandez was arrested by Detective Lauro. (State 1st Dep't Br. at 9; Lauro: Trial Transcript ["Tr."] 54-55.)

  A pretrial suppression hearing was held on June 15, 1998. (6/15/98 Hearing Transcript ["H."].) Detective Lauro was the sole witness at the suppression hearing. (Id.) At the conclusion of the hearing, Justice Steven Lloyd Barrett held that the photographic arrays shown to witness Davilla and to the complainant Schiering were not suggestive and thus their identifications would not be suppressed (H. 85-88.) Justice Barrett also found that Hernandez was given his Miranda warnings by Detective Laura, was not mistreated, and thus Hernandez's statements to the police were admissible. (H. 88-90.)

  After jury selection, trial began on June 22, 1998. (Trial Transcript ["Tr."] 1-2.) Detective Lauro testified to, among other things, the inculpatory statement that Hernandez made to him (Lauro: Tr. 87-88), as follows: Hernandez said that another drug addict (Davilla) suggested that he rob this "old lady" who lived in Davilla's building. (Lauro: Tr. 87.) Inside the building, Hernandez "`put [his] hand inside her sweater pocket and took out a purse. She told [him] to give her back her money, and [he] told her to shut up.'" (Lauro: Tr. 88.) Hernandez ran to a "crack spot" and gave half the food stamps in the purse to the other addict. (Lauro: Tr. 88.) Page 3

  The victim, Ms. Schiering, similarly described the robbery at trial: her attacker reached inside her pocket, took out her purse containing $30 of food stamps, "put his face" into hers and said "`just don't holler.'" (Schiering: Tr. 705-06.) The next thing she knew she woke up in the hospital. (Schiering: Tr. 706, 733-34.) In the hospital, Detective Lauro and another officer showed her a large photo book, with twelve to fifteen pages full of photographs and then a smaller photo book with six Polaroid photos per page, and in that second book she identified Hernandez's picture as that of her attacker, although only with a "90 percent" certainty. (Schiering: Tr. 735-37, 740-42.)

  The Court will not review the balance of the trial testimony, which is summarized in the parties' briefs to the First Department (see Ex. 3: Hernandez 1st Dep't Br. at 4-16; Ex. 4: State 1st Dep't Br. at 5-11), except for the testimony relevant to Hernandez's habeas claims.

 Detective Lauro's Trial Testimony: Describing An Area Search As Where Someone Has Been Arrested Before

  Detective Lauro testified that as part of his investigation of the robbery and attack of Schiering, he went to the scene of the crime, 3400 Tryon Avenue in the Bronx, and interviewed several witnesses. (Lauro: Tr. 61-67.) On direct examination by the prosecutor, Detective Lauro testified that he conducted a further investigation, including an "area search":

Q. Can you describe what type of investigation you conducted afterwards?
A. An area search.
Q. Can you define for the members of the jury what is an area search?
  A. An area search is basically a drive by. walk by of an area where a person that is a subject of an investigation has been previously arrested. Page 4

  MR. RAMOS [Defense Counsel]: Objection.


THE COURT: Yes. This is more than we need to know, just general.
(Lauro: Tr. 68, emphasis added.) Detective Lauro testified that it was during this search that he arrested Hernandez. (Lauro: Tr. 69-70.) After a lunch recess, before the jury was brought back in, defense counsel Mr. Ramos moved for a mistrial:
MR. RAMOS: I have an application for a mistrial based on the Officer's testimony that he went to the location where he arrested Mr. Michael Hernandez based on the record of prior arrests, I think.
THE COURT: Based on what?
MR. RAMOS: Records of prior arrests.
THE COURT: I don't believe that was the testimony.
MR. RAMOS: We can read back the record. I asked to approach.
THE COURT: We can read back the testimony. You are saying the witness said. . . . He said a prior arrest record?
MR. RAMOS: He made reference to a prior arrest. The record will speak for itself. I ask that we refer to the record.
THE COURT: We will refer to the record, not right now.
It is my recollection that that was not the type of reference that would impress upon the jurors what you are suggesting. Jury in.
(Tr. 76-77.) The next day, when defense counsel renewed his application for a mistrial and read back Detective Lauro's testimony (Tr. 189-91), the judge again denied a mistrial: "The issue of a mistrial requires showing of substantial prejudice. I don't believe there is substantially [sic] prejudice. I don't applaud the use. I don't think it was intentional. I certainly don't applaud the Page 5 reference to the prior arrest. . . . I think a mistrial is a little excessive remedy. I'll hear your application for any other remedy. I sustained the objection. If you feel there is something else you would like me to do in the way of instruction or striking, I will do it." (Tr. 192.) The judge noted that such an instruction "might call unnecessary attention to a matter that [the judge] believe[s] went right pas[t] this jury as it just now went pas[t]" the judge. (Tr. 193.) Defense counsel dropped the issue, moved on to other issues (Tr. 193), and never asked for a curative instruction (see Ex. 4: State IstDep'tBr. at 27).

 Detective Lauro's Trial Testimony; Photographic Identification

  On cross-examination, Hernandez's attorney questioned Detective Lauro about conversations that he had with the victim, Florence Schiering:

Q. When you spoke to Mrs. Schiering, what date was that?
A. That would be the 16th. 10/16/97. Three days after the incident.
Q. And would it be fair to say that by that date you had a picture of Michael Hernandez?
A. Yes, I did.
Q. Okay. Have you spoken to Miss Schiering since that date?
A. Yes, I have.
Q. How many times?
A. Three or four times since that date.
Q. And in connection with what?
  A. In connection with getting ready for this case to come to trial. Page 6


Q. Okay. And on those — any of those occasions when you spoke to Miss Schiering, did you show her the picture of Michael Hernandez?
A. Never.
Q. Never at all?
A. After the first time?
Q. That's correct.
A. Miss Schiering identified defendant Hernandez —
MR. RAMOS: Objection, may I be heard off the record?
A. She saw a picture on the 16th. and she — that was shown to her by me and I never after that date showed her any other photos of the defendant or anybody else for that matter.
MR. RAMOS: Objection, Your Honor. I'd like to be heard outside the presence of the jury.
(Lauro: Tr. 167-68, emphasis added.) After the jury was excused, the following colloquy occurred:
MR. RAMOS: Your Honor, at this time I'm moving for a mistral. At this moment we have two very egregious errors admitted by the witness on the stand.
MR. RAMOS: As I indicated initially, he testified earlier about him going to the area where Mr. Hernandez was arrested, based on prior arrest records, something to that effect. I don't recall his exact —
THE COURT: We have to check the record on that.
MR. RAMOS: On this occasion, I asked him whether he had ever shown the photograph to Miss Schiering and he basically testified about out-of-court identification. Clearly improper.
  THE COURT: What did he do? Sorry, you asked him whether he showed a photograph of the defendant to Miss Schiering and he apparently Page 7 answered that he showed a photograph of the defendant to Miss Schiering —


MR. RAMOS: And that she made an out-of-court identification. He testified about an out-of-court identification, Your Honor.
THE COURT: Can I have a read back of that. (Whereupon, the requested testimony was read back by the Court Reporter.)
THE COURT: Counsel, there's no basis for a mistrial.
(Tr. 170-71.) The court pointed out that an out-of-court identification is improper if the district attorney elicits it on direct examination, but this was elicited by defense counsel, who "went right to into this point." (Tr. 172: see also Tr. 173-74, 176-78.)

  Before his redirect examination, the Assistant District Attorney made an application to further explore the issue of the photographic identification brought up by the defense during Detective Lauro's cross-examination:

[A.D.A.] FERRERA: My application is to ask them both [Detective Lauro and Ms. Scheiring about the photographic identification] because impressions have been left upon this jury that an improper identification was done. Mr. Ramos this morning asked repeatedly questions about whether or not any photos were shown by either this officer or even myself during any period of trial prep . . . is leaving a very clear impression to a very intelligent jury, and that it is that the police department did something inappropriate in this case. . . .
. . . .
  Mr. Ramos asked [Detective Lauro] questions about showing a photograph when we in fact know that it wasn't a single photograph that was shown to this complainant, that in fact there was a whole series of photographs a whole book shown to this complainant and that she leafed through approximately forty to fifty photographs and then picked out the defendant. Page 8


The questioning regarding showing Miss Florence Schiering a single photograph leaves the impression that even if she does make a court identification it's based only on that showing of one single photograph, that an intelligent jury looking at the testimony . . . will say the detective showed her a photograph of the guy they arrested, one photograph. She looked at that, yeah, so she picked him out.
. . . .
Mr. Ramos chose to ask those questions. No one told him to ask those questions. He knew what the responses would have been. . . . He was on full notice of what the circumstances of the identification were, and yet he elicited only the fact that a photograph was brought to Frances Schiering and that elicited the evidence that a photograph was actually identified by Florence Schiering clearly misleading this jury . . . [although] this Court has ruled on the record [at the suppression hearing] that the detective showed forty to fifty photos to this complainant and at that point she made her identification.
(Tr. 247-49.) The trial judge agreed with the prosecutor, noting that the line of questioning explored by the defense was not in good faith:
THE COURT: The identification that anybody heard on a good faith basis only occurs at the hospital in which a book of photos was shown.
MR. RAMOS: Correct.
THE COURT: She selected a photo that was created to look like other photographs in that format.
MR. RAMOS: Correct.
THE COURT: No single photograph identification was ever done.
MR. RAMOS: I didn't refer to that date. I referred to showing of a picture afterwards, jury trial preparation I specifically asked.
  THE COURT: Why did you ask that question? What basis did you have to believe that a single photo identification, a suggestive photo identification that has not been noticed was in fact made by the DA's office? Page 9


MR. RAMOS: No, what I'm saying is that during the period of trial preparation.
THE COURT: Trial preparation still is a period that you would be required to be noticed on. If they made an identification, if they showed a single photo to a witness during preparation, they are required to notice that. It's still a pretrial identification. Did you get notice of any such thing?
MR. RAMOS: No, I didn't.
THE COURT: The clear impression I think, the officer had the clear impression which the Court had was that you were speaking of the photographic identification that was the subject of the pretrial hearing because that is the only photographic identification procedure that any of us knew occurred, and to this moment that is the only one that I believe any of us have any right to believe did occur.
That being so I am denying a mistrial motion. I believe the Officer acted and answered in a manner that was appropriate in light of the fact he expected your question went only to the identification procedure this was had.
But, moreover, the DA now makes a very fair point, that this jury clearly has the impression, and I can go back to my own notes to confirm this, that you were talking about showing a photo, a single photo.
MR. RAMOS: I was.
THE COURT: A suggestive procedure.
MR. RAMOS: I was inquiring whether a single photo was shown . . . after the photo array on October 16th.
THE COURT: How is that a good faith question? . . . There was no basis that this was done. Your client didn't tell you it happened, and you are not given notice.
. . . .
  [W]hatever the motivation of counsel, I certainly don't find that he had a basis to believe a single photographic identification was ever connected in this case, and I think the District Attorney will have a Page 10 large latitude to correct the misimpression that the identification procedure utilized with respect to the complainant in this case was a single photo procedure.


I'll allow the DA to elicit the full dimensions of the identification procedure as mounted by the Detective, that being the presentation of a book containing Polaroid pictures that were all similar in nature and the manner in which the witness examined the book and made her selection. . . .
The purpose of this ruling is simply to allow this clarification of the methodology to negate the improper suggestion that a single photographic identification was elicited.
In light of the Trowbridge rule I will not allow the DA to elicit through this witness the fact that the complaining witness made an identification when shown this book.
(Tr. 251-56; see also Tr. 257-64.)

  On re-direct examination, the prosecutor asked Detective Lauro to describe the circumstances in which he showed Hernandez's photograph to Schiering:

Q. Did you have anything with you at the time that you went to the hospital [to interview the victim, Schiering]?
A. Yes.
Q. And can you describe for the members of the jury what it was that you brought with you to the hospital?
A. I had two binders, standard college student, three ringed style binders and each contained plastic sleeves which in turn contained one book contained polaroid photographs of male Hispanics and the other book contained official Police Department mug shots of male Hispanics.
  . . . . Page 11


Q. Directing your attention to the book that had the poloroid photographs, can you describe how many sleeves were in that book?
A. I believe . . . there was about 30 to 40 pages of sleeves inside that book.
Q. How many photographs were on each page?
A. Well, when you open up the first page it would be initially, open up the book you would be looking at one page with six photos on the first. And as you start flipping the pages into the book you have photos on the righthand side page and lefthand side page . . .
. . . That book contained anywhere from 50 to 60 photographs . . .
Q. Now, you indicated that you had taken a polaroid photograph of the defendant at the 52 precinct; right?
A. That's correct.
Q. What did you do with respect to that particular photograph?
A. I added it to the book. . . . It was towards the very end.
(Lauro: Tr. 296-300, emphasis added.) The prosecutor asked Detective Lauro further questions about the circumstances surrounding Schiering's viewing of the photo book, but did not ask him, and Detective Lauro did not volunteer, whether Schiering identified Hernandez when she looked through the book. (Lauro: Tr. 300-03.) The prosecutor ended his examination of Detective Lauro by asking him how many pages in the book Schiering viewed, and Detective Lauro responded that she went through the entire book. (Lauro: Tr. 303.) Page 12

 Detective Lauro's Trial Testimony; Davilla's Intimidation of Witnesses and Police Reports

  During re-cross-examination, defense counsel Mr. Ramos attempted to question Detective Lauro about a police report that was not in evidence:

Q. Okay.Now, in the report that was previously marked as Defense Exhibit E, Okay, that is the — a complaint report relating to Jesus Davilla?
A. Yes.
Q. You make reference to Miss Conroy in that report, correct?
A. She — her name appears on that report.
Q. And it appears within the section of the narrative that describes the acts done by Jesus Davilla, correct?
A. No, her name appears.
THE COURT: No, no. I'm sorry. Neither one of you are permitted to discuss the contents of this report. It is not in evidence. My recollection is it was used for limited purposes or did — it's been used in that matter. I think it was to refresh his recollection, that's all you can do with it. It was not before the jury and the jury — it's not in evidence.
(Lauro: Tr. 340.) Mr. Ramos, however, continued his attempt to bring in testimony about the report, the possible involvement of Jesus Davilla in the robbery, and Davilla's arrest. (Lauro: Tr. 341-45.) On hearsay grounds, the judge again stopped the line of questioning. (Tr. 346-49.) Mr. Ramos told the judge that he wished to question Detective Lauro on the DA's write-up, stating that "[i]n the DA's redirect he brought out an entire line of questioning about how he had no reason to suspect Jesus Davilla." (Tr. 349.) The judge pointed out that those questions were in response to Mr. Ramos' earlier questioning of Detective Lauro about Davilla. (Tr. 349-65.) The judge instructed defense Page 13 counsel that he "may not use these documents in the fashion you are using them. And you may not ask the detective unless you are prepared to squarely ask him about a prior out of Court statement [by a witness] and waive any objection on your . . . part to the hearsay, you are not going to put it in indirectly through these reports." (Tr. 364.)*fn2

 Verdict and Sentence

  The jury found Hernandez guilty of fourth degree grand larceny and first degree assault. (Tr. 1036-37.) On September 22, 1998, the judge sentenced Hernandez to sixteen years imprisonment. (See Dkt. No. 2: Pet. ¶ 5.)

 Hernandez's Direct Appeal

  On September 20, 2001 the First Department affirmed Hernandez's conviction, holding in relevant part:

The court properly exercised its discretion in denying defendant's request for a mistrial based upon testimony from the arresting detective concerning a photo identification by the complainant, since defendant opened the door to such testimony and actually elicited it during cross-examination. Likewise, the court properly exercised its discretion in denying defendant's mistrial motion based upon the detective's fleeting reference to what could have been construed as a prior arrest of defendant. Significantly, defendant did not accept the court's offer to provide a curative instruction.
  The court properly exercised its discretion in limiting the cross-examination of the detective concerning the contents of a document not in evidence, since the questions asked sought to elicit hearsay that was not admissible under any hearsay exception and lacked a good faith basis. Accordingly, there was no violation of defendant's right of confrontation. Page 14

 People v. Hernandez, 286 A.D.2d 623, 623-24, 730 N.Y.S.2d 229, 230 (1st Dep't 2001) (citations omitted).

  The New York Court of Appeals denied leave to appeal on December 19, 2001. People v. Hernandez. 97 N.Y.2d 682, 738 N.Y.S.2d 298 (2001).

 Hernandez's C.P.L. $440.10 Motion

  On February 6, 2001, Hernandez filed a pro se C.P.L. § 440 motion to vacate the judgment asserting, inter alia, ineffective assistance of counsel. (Dkt. No. 6: Ex. 1: Hernandez § 440 Motion.) Hernandez alleged that he was denied effective assistance of counsel because his attorney: (a) failed to produce Officer Collopy's testimony at trial that a witness described the assailant as having black hair (Ex. 1 at 11-17), and (b) failed to object at trial to the admission of evidence of Hernandez's statement to the police (Ex. 1 at 17-19.)

  On August 16, 2002, Justice Barrett denied Hernandez's § 440 motion on procedural grounds pursuant to C.P.L. § 440.10(2)(b), and alternatively on the merits, holding that "neither claim advanced by defendant established a basis for finding that counsel's representation was ineffective." (Ex. 9: Justice Barrett 8/16/02 Order.)

  Hernandez initially failed to appeal Justice Barrett's order to the First Department. (See Ex. 10:10/29/03 Letter from ADA McGarvey-Depuy to this Court.) On October 29, 2003, this Court stayed the petition and ordered Hernandez "to seek leave to appeal to the 1st Department within 30 days, or the issues raised in his habeas petition decided by the 440 court will be procedurally barred." (Dkt. No. 5: Order, reproduced in Ex. 11.) Hernandez did not thereafter seek leave to appeal the § 440 decision to the First Department. Page 15

 Hernandez's Federal Habeas Corpus Petition

  On or about September 10, 2003, Hernandez filed his federal habeas corpus petition alleging that: (1) the trial court erred in allowing testimony of a pre-trial photographic identification (Dkt. No. 2: Pet. ¶ 15(A)); (2) volunteered references to Hernandez's prior arrest violated his due process rights (Pet. ¶ 15(B)); (3) he was denied the right to fully cross-examine Detective Lauro (Pet. ¶ 16); and (4) trial counsel rendered ineffective assistance by (a) failing to object to admission of Hernandez's statement to the police and (b) failing to call a police officer who "recorded statements describing the perpetrator as someone other than" Hernandez (Pet. ¶ 17).



  Before the Court can determine whether Hernandez is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

  In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor. 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

  (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any Page 17 claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —


(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2). . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1) — (2).*fn4

  The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.*fn5 Both, however, "restrict[] the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.*fn6 "That federal law, as defined by the Page 18 Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller. 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker. 296 F.3d at 135; accord, e.g., DelValle v. Armstrong. 306 F.3d at 1200.

  As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.
Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.*fn7

  In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the Page 19 facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.*fn8 However, "[t]he term `unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.*fn9 Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.*fn10 "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far Page 20 off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone. 221 F.3d 100, 111 (2d Cir. 2000)).*fn11

  Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller. 289 F.3d at 45.*fn12

  Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker. 296 F.3d at 134.

  Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3d at 312: accord Jenkins v. Artuz. 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference.").*fn13 "By its terms, § 2254(d) requires such deference only with respect Page 21 to a state-court `adjudication on the merits,' not to a disposition `on a procedural, or other, ground.' Where it is `impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).*fn14 Of course, "[i]f there is no [state Page 22 court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

  In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

  Here, the First Department decided Hernandez's evidentiary issues (photographic identification testimony and reference to prior arrest) and scope of cross-examination of Detective Lauro (Dkt. No. 2: Pet. ¶¶ 15-16) on the merits (see pages 13-14 above), and thus the deferential AEDPA review standard applies. Because the Court finds Hernandez's ineffective assistance claims (Pet. ¶ 17) to be barred from habeas review (see Point IV below), the Court need not decide what review standard would apply to those claims.


  Hernandez's first two habeas claims allege that his constitutional rights were violated by state evidentiary rulings. (Dkt. No. 2: Pet. ¶¶ 15(A)-(B).) Page 23

 A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings*fn15

  "In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire. 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that `federal habeas corpus relief does not lie for errors of state law.'").*fn16 Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . ."); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial") (emphasis in original), cert. denied. 464 U.S. 1000, 104 S.Ct. 503 Page 24 (1983). That is a "heavy burden, for `generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v. McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).*fn17

  The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional.*fn18 See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp.2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).*fn19 Page 25

  Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system.*fn20 Here, Hernandez asserts that his Fifth and Fourteenth Amendment rights of due process were violated by the trial court's evidentiary rulings. (Pet. ¶ 15.) Page 26

  Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only `"where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman. 839 F.2d at 925 (emphasis in original).*fn21 The test for "fundamental fairness" is whether the excluded evidence, `"evaluated in the context of the entire record,'"*fn22 `"create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry. 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S.Ct. at 2401-02).*fn23

  The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v. Keane. 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been Page 27 `sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quoting Johnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied. 522 U.S. 1123, 118 S.Ct. 1068 (1998); Collins v. Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp.2d at 276.*fn24

  The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue addressed by the Second Circuit in Jones v. Stinson. 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial. Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard. Id. at 120-21. Page 28

  In sum, for Hernandez to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) under Agurs, that admission/exclusion of evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of the Agurs standard.

 B. Application of This Standard to Hernandez's Photographic Identification Claim

  Hernandez claims that his constitutional fair trial and due process rights were violated when (a) Detective Lauro, in response to defense counsel's questions, stated that the victim identified Hernandez from a photograph, and (b) the trial court improperly allowed the prosecution to further question Detective Lauro on the issue on the ground that the defense had opened the door to the photographic identification. (Dkt. No. 2: Pet. ¶ 15(A), incorporating Ex: 3: Hernandez 1st Dep't Br. at 8-9, 18-21.)

  In making this claim, Hernandez refers to the legal rules outlined in People v. Hines, 112 A.D.2d 316, 316, 491 N.Y.S.2d 764, 765 (2d Dep't 1985) ("A witness may not testify on the People's direct case regarding a photographic identification of the defendant; to do so constitutes improper bolstering."), and People v. Melendez, 55 N.Y.2d 445, 451-52, 449 N.Y.S.2d 946 (1982) (discussing New York standard as to "opening the door").

  Hernandez's argument fails as a matter of law and of fact. As a legal matter, the rule forbidding "bolstering" is a state law standard, and a claim that a witness's testimony constituted improper bolstering does not state a federal constitutional claim cognizable on habeas corpus. See, e.g., Ouinones v. Miller. 01 Civ. 10752, 2003 WL 21276429 at *49 n.77 (S.D.N.Y. June 3, 2003) Page 29 (Peck, M.J.) ("Bolstering is generally not a cognizable federal claim."); Bailey v. People of State of New York. 01 Civ. 1179, 2001 WL 640803 at *8 (S.D.N.Y. June 8, 2001) (Peck, M.J.) (& cases cited therein); Diaz v. Greiner. 110 F. Supp.2d 225, 235 (S.D.N.Y. 2000) (Berman, D.J.) ("Bolstering claims have been (expressly) held not to be cognizable on federal habeas review."); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *32 n.23 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Benitez v. Senkowski. 97 Civ. 7819, 1998 WL 668079 at *5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. & Peck, M.J.); Orr v. Schaeffer. 460 F. Supp. 964, 967 (E.D.N.Y. 1978) (Weinfeld, D.J.) ("This Circuit has never regarded the practice [of bolstering] as inimical to trial fairness.").

  As a factual matter, Detective Lauro's testimony was not elicited by the prosecutor on direct examination; rather Detective Lauro testified during cross-examination, in response to a confusing line of defense questioning, that Schiering saw Hernandez's picture. (See page 6 above.) The trial judge thus correctly held that the defense had "opened the door" to that answer and to the prosecution's further explanation of the photographic identification procedures. (See pages 6-7 above.) In New York, "where . . . the opposing party `opens the door' on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect `to explain, clarify and fully elicit [the] question only partially examined' on cross-examination." People v. Page 30 Melendez, 55 N.Y.2d 445, 451, 449 N.Y.S.2d 946, 949-50 (1982).*fn25 More specifically, the New York Court of Appeals has held:

The "opening of the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances.
People v. Melendez. 55 N.Y.2d at 451, 449 N.Y.S.2d at 950.

  Here, the trial judge correctly found that the defense's questioning of Detective Lauro about showing "a" photograph of Hernandez to the victim created a misleading impression and opened the door to re-direct explanation that Hernandez's photo was one of many in two books of photos presented to the victim. (See pages 8-10 above.) The First Department found that the trial court "properly exercised its discretion." People v. Hernandez. 286 A.D.2d 623, 623, 730 N.Y.S.2d 229, 230 (1st Dep't 2001). Under the deferential AEDPA review standard, this Court cannot say that Page 31 the state court unreasonably applied Supreme Court precedent. Indeed, even under a de novo review standard, this Court would agree with the state court decisions.

  Hernandez's photo identification habeas claim should be denied.

 C. Application of This Standard to Hernandez's "Prior Arrest" Evidence Claim

  Hernandez claims that Detective Lauro's explanation of an "area search" revealed that Hernandez had a prior arrest history, thus denying his rights to due process and a fair trial under the Fifth and Fourteenth Amendments to the Constitution. (Dkt. No. 2: Pet. ¶ 15(B), citing Ex. 3: Hernandez 1st Dep't Br. at 6, 21-23.)

  The trial judge found that the passing reference was unintentional and not likely to have made any impression on the jury and denied a mistrial. (See page 7 above.) The First Department affirmed, holding:

Likewise, the court properly exercised its discretion in denying defendant's mistrial motion based upon the detective's fleeting reference to what could have been construed as a prior arrest of defendant. Significantly, defendant did not accept the court's offer to provide a curative instruction.
People v. Hernandez, 286 A.D.2d 623, 624, 730 N.Y.S.2d 229, 230 (1st Dep't 2001) (citations omitted).

  This Court agrees. The area search reference was fleeting and did not directly refer to Hernandez. Even assuming arguendo that the trial court's ruling was erroneous as a matter of state law, Hernandez has failed to show how this testimony deprived him of a fundamentally fair trial in light of all the other evidence against him, and he has failed to show that the state court's ruling constituted an objectively unreasonable application of the Agurs standard. See cases cited on pages 26-27 above; see also, e.g., Witt v. Fisher. 01 Civ. 8034, 2002 WL 1905946 at *6 (S.D.N.Y. Page 32 Aug. 19, 2002) (Erroneous admission of defendant's eighteen prior convictions was not a basis for habeas relief. "Indeed, it is a petitioner's burden to show that the erroneous admission of evidence was not harmless error by showing that it was the basis for his conviction."); Vincent v. Bennet, No. CV 99-7244, 2001 WL 1590521 at *2 (E.D.N.Y. Nov. 8, 2001) (Weinstein, D.J.) (Habeas denied where "[t]estimony suggesting a prior conviction might have been damaging, but there was no indication that the prosecutor expected or induced it. The court offered a curative instruction, but it was rejected in a rather muddy interchange. . . .").

  Hernandez's "area search" habeas claim should be denied.


  Hernandez asserts that his right of confrontation was denied when the trial court limited the cross-examination of Detective Lauro to exclude testimony about a document that was not in evidence. (Dkt. No. 2: Pet. ¶ 16, incorporating Ex. 3: Hernandez 1st Dep't Br. at 24-26.)

  The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const, amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama. 380 U.S. 415. 418. 85 S.Ct. 1074, 1076 (1965): Pointer v. Texas. 380 U.S. 400, 404, 85 S.Ct. 1065, 1068 (1965).*fn26 The primary purpose of the Confrontation Clause is to Page 33 prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. E.g., Douglas v. Alabama. 380 U.S. at 418-19, 85 S.Ct. at 1076-77.*fn27

  The right to cross-examination, however, is not unlimited:

As long as a defendant's right to confront the witnesses against him is not violated, limitations on cross-examination are not grounds for reversal. . . . Cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a "discriminating appraisal" of the particular witness's credibility.
United States v. Roldan-Zapata. 916 F.2d 795, 806 (2d Cir. 1990), cert. denied, 499 U.S. 940, 111 S.Ct. 1397 (1991).*fn28 "[T]rial judges retain wide latitude insofar as the Confrontation Clause is Page 34 concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall. 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986).*fn29

  The Confrontation Clause "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer. 474 U.S. 15, 21, 106 S.Ct. 292, 294 (1985).*fn30

  Thus, "the Confrontation Clause is unlikely to be violated when judges apply traditional rules of evidence that, for example, limit inquiry into collateral matters or prevent the introduction, in the guise of cross-examination, of hearsay or opinion evidence not otherwise admissible. The exercise of discretion based on such rules is routinely affirmed even in federal cases, where the scope of review is much broader." Munoz v. Barkley. 2003 WL 21373349 at *2 Page 35 (citations omitted); see also, e.g., United States v. Flaharty, 295 F.3d 182, 190 (2d Cir.) ("The trial court has wide discretion to impose limitations on the cross-examination of witnesses."), cert. denied. 537 U.S. 936, 123 S.Ct. 37 (2002); United States v. Griffith. 284 F.3d 338, 352 (2d Cir.) ("District courts are afforded wide discretion to impose limitations on the cross-examination of witnesses."), cert. denied. 537 U.S. 976, 123 S.Ct. 461 (2002); Lombard v. Mazzuca. No. 00 CV 74622, 2003 WL 22900918 at *8 (E.D.N.Y. Dec. 8, 2003) ("The Confrontation Clause does not prohibit a trial judge from imposing reasonable limits on a defense attorney's cross of a government witness. . . . Here, the trial judge was simply enforcing New York hearsay rules . . .").

  The First Department denied Hernandez's confrontation claim, stating:

The court properly exercised its discretion in limiting the cross-examination of the detective concerning the contents of a document not in evidence, since the questions asked sought to elicit hearsay that was not admissible under any hearsay exception and lacked a good faith basis. Accordingly, there was no violation of defendant's right of confrontation.
  People v. Hernandez, 286 A.D.2d 623, 624, 730 N.Y.S.2d 229, 230 (1st Dep't 2001) (citations omitted). The First Department's decision is not an unreasonable application of Supreme Court precedent. Defense counsel had already developed through cross-examination of Detective Lauro that, according to two witnesses, Davilla had tried to intimidate them. (See page 12 above.) The further questioning, that the judge disallowed, attempted to get Detective Lauro to read from a report that was not in evidence (see page 12 above), which is classic hearsay. See, e.g., Hutchinson v. Groskin, 927 F.2d 722, 725 (2d Cir. 1991) (By asking witness to comment on hearsay documents, "defense counsel used [the witness] as a conduit for hearsay testimony," which was error). The trial judge instructed defense counsel that if he wanted to establish a witness's prior statement to the authorities and waive any hearsay objection, he should do that directly instead of indirectly through Page 36

 the reports; defense counsel declined that invitation. (See page 13 above.) Thus, the state court did not err, much less unreasonably apply Supreme Court precedent.

  Even if the Court were to assume, arguendo, that the limitation of Detective Lauro's cross-examination was erroneous, however, any such error was harmless.

  It is settled law that "violations of the confrontation clause may, in an appropriate case, be declared harmless" error. Klein v. Harris. 667 F.2d 274, 290 (2d Cir. 1981), overruled on other grounds by Dave v. Attorney General. 696 F.2d 186, 195 (2d Cir. 1982); see, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438 (1986) (harmless error applies to Confrontation Clause issue); Carracedo v. Artuz, No. 02-2569, 81 Fed. Appx. 741, 744, 2003 WL 22055115 at *3 (2d Cir. Sept. 4, 2003); Cotto v. Herbert. 331 F.3d 217, 253-54 (2d Cir. 2003); Khan v. Portuondo, No. 97-2942, 1 Fed. Appx. 16, 17-18, 2001 WL 11048 at *l-2 (2d Cir. Jan. 4, 2001), cert. denied. 533 U.S. 904, 121 S.Ct. 2247 (2001).*fn31 Page 37

  In conducting a Confrontation Clause harmless error analysis, the Supreme Court and the Second Circuit have set forth the appropriate factors to consider:

   In conducting this analysis, we must consider (1) how important the witness' testimony was to the prosecution's case, (2) whether the testimony was cumulative, (3) whether other evidence in the record corroborated or contradicted the witness on relevant matters, (4) whether other cross-examination of the witness was permitted and the extent of it, and (5) what effect the testimony would have on proof of defendant's guilt. See Van Arsdall. 475 U.S. at 684, 106 S.Ct. at 1438. Page 38

  Tinsley v. Kuhlmann. 973 F.2d at 166.*fn32 "[T]he weight of the prosecution's case against the defendant is the most significant" factor in determining whether a trial error is harmless. Samuels v. Mann. 13 F.3d at 526, 527 ("In order to find the [Confrontation Clause] error in this case to be harmless, we need not conclude that the evidence against Samuels was overwhelming. Indeed, in Brecht, the Court found the evidence of the petitioner's guilt to be `if not overwhelming, certainly weighty.'").*fn33

   The evidence against Hernandez was overwhelming (or at least weighty). Among other evidence, the jury heard Detective Lauro's testimony that Hernandez admitted to stealing from the victim, and the victim identified Hernandez as the man who stole from and injured her. (See page 3 above.) Moreover, defense counsel was able to establish through cross-examination of Detective Lauro that two witnesses had reported that Davilla had tried to intimidate them — the very point he was trying to bring out through the inadmissible reports. Page 39

   Hernandez's habeas claim, that his Confrontation Clause rights were violated by the limitation on cross-examination of Detective Lauro, should be denied.


   In his habeas petition (Dkt. No. 2: Pet. ¶ 17) and his CPL § 440 motion (Ex. 1), Hernandez asserts that his counsel was ineffective. However, despite being advised by this Court to appeal the trial court's denial of his § 440 motion to the First Department, Hernandez failed to do so. His ineffective assistance claims shouldbe denied under the "unexhaustedbut deemed exhausted and procedurally barred" doctrine.

   A. The Unexhausted But Deemed Exhausted and Procedurally Barred Doctrine*fn34 Page 40

   Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A).*fn35 As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 So. Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 119 S.Ct. at 1732.

   The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

   First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim. Page 41

  Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. & Peck, M.J.) (emphasis added; quoting Klein v. Harris. 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel. 119 S.Ct. at 1732-34.

   B. Application to Hernandez's Ineffective Assistance Claim

   New York allows ineffective assistance of counsel claims to be brought via a collateral attack pursuant to C.P.L. § 440.10. See Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *8 (S.D.N.Y. Oct. 18, 2002) (Peck M.J.); Hernandez v. Lord. 00 Civ. 2306, 2000 WL 1010975 at * 3 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (citing federal and New York State cases).*fn36

   In this case, Hernandez brought his ineffective assistance of counsel claim via a § 440 motion, which the trial court denied (Ex. 9: Justice Barrett 8/16/02 Order), but Hernandez did not appeal to the First Department. (See page 14 above.) On October 29, 2003, this Court stayed Hernandez's habeas petition and ordered Hernandez to appeal the denial of his § 440 motion to the Page 42

   First Department within thirty days, and admonished him that if he did not seek leave to appeal to the First Department within that 30 day period, "the issues raised in his petition decided by the 440 court will be procedurally barred." (Dkt. No. 5: Order, reproduced in Ex 11.) See, e.g., Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.) (where some of petitioner's claims are unexhausted, action should be stayed and petitioner given thirty days in which to file state action to exhaust unexhausted claims), cert. denied. 534 U.S. 1015, 122 S.Ct. 506 (2001).

   Over three months later, it appears that Hernandez did not appeal the denial of his § 440 motion to the First Department, and it is now too late for Hernandez to do so, both as a matter of state procedure and, more importantly, as a matter of habeas jurisprudence under Zarvela. See, e.g., Wilson v. Senkowski. 02 Civ. 0231, 2003 WL 21031975 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Costello v. Hodges. 01 Civ. 2172, 2003 WL 359460 at *4 (S.D.N.Y. Feb. 18, 2003) (failure to comply with order to exhaust claims under Zarvela procedures could result in the Court's "vacat[ing] the stay nunc pro tunc . . . and the [claims] may be dismissed . . ."); Figueroa v. Greiner. 2002 WL 31356512 at *8-9 (petitioner's "ineffective counsel claim should be dismissed for failure to comply with the Court's order to exhaust the claim); Rodriguez v. Greiner. 99 Civ. 4475, 2002 WL 511555 at *4-5 (S.D.N.Y. Apr. 3, 2002) (dismissing habeas claim because, in violation of order, petitioner failed timely to return to state court to exhaust claim); cf. Reyes v. Keane. 118 F.3d 136, 139-40 (2d Cir. 1997) (unexhausted claims may be "deemed exhausted" and procedurally barred where petitioner no longer has remedies available in state court); Soto v. Greiner. 2002 WL 1678641 at *14-15 (& cases cited therein) (discussing unexhausted but deemed exhausted and procedurally barred doctrine). Page 43

   Accordingly, Hernandez's ineffective counsel claim should be dismissed as unexhausted but deemed exhausted and procedurally barred.*fn37


   For the foregoing reasons, Hernandez's habeas petition should be DENIED, and a certificate of appealability should not issue.


   Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Herman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Brman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049. 1054 (2d Cir. 1993), cert. denied. 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson. 968 F.2d 298, 300 (2d Cir.), cert. denied. 506 U.S. 1038, 113 S.Ct. 825 (1992): Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16(2d Cir. 1989): Wesolek Page 44 v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

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