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
REPORT AND RECOMMENDATION
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.
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:
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
Q. Can you describe what type of investigation you
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
MR. RAMOS [Defense Counsel]: Objection.
THE COURT: Yes. This is more than we need to know,
(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
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
It is my recollection that that was not
the type of reference that would impress
upon the jurors what you are suggesting.
(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
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
Detective Lauro's Trial Testimony; Photographic
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
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.
Q. Okay. And on those any of those
occasions when you spoke to Miss
Schiering, did you show her the picture
of Michael Hernandez?
Q. Never at all?
A. After the first time?
Q. That's correct.
A. Miss Schiering identified
MR. RAMOS: Objection, may I be heard off the
THE COURT: No.
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
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
answered that he showed a
photograph of the defendant to Miss
MR. RAMOS: And that she made an out-of-court
identification. He testified about an
out-of-court identification, Your
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
(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
[A.D.A.] FERRERA: My application is to ask them
both [Detective Lauro and Ms.
Scheiring about the photographic
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.
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
(Tr. 247-49.) The trial judge agreed with the prosecutor, noting
that the line of questioning explored by the defense was not in good
THE COURT: The identification that anybody heard
on a good faith basis only occurs at
the hospital in which a book of photos
MR. RAMOS: Correct.
THE COURT: She selected a photo that was created
to look like other photographs in that
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
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?
MR. RAMOS: No, what I'm saying is that
during the period of trial
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
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
. . . .
[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
large latitude to correct the
misimpression that the identification
procedure utilized with respect to the
complainant in this case was a single
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
Q. Did you have anything with you at the time
that you went to the hospital [to interview
the victim, Schiering]?
Q. And can you describe for the members of the
jury what it was that you brought with you to
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.
. . . .
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
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.)
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?
Q. You make reference to Miss Conroy in
that report, correct?
A. She her name appears on that
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
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.
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
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.
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).
I. THE AEDPA REVIEW STANDARD*fn3
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
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
claim that was adjudicated on the merits in
State court proceedings unless the adjudication of
(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
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
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
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
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
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
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
"By its terms, § 2254(d) requires such deference
only with respect
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
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.
II. HERNANDEZ'S CLAIMS THAT HE WAS DENIED HIS CONSTITUTIONAL
RIGHTS BASED ON STATE EVIDENTIARY ERRORS DO NOT PROVIDE A BASIS FOR
Hernandez's first two habeas claims allege that his constitutional
rights were violated by state evidentiary rulings. (Dkt. No. 2: Pet.
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
(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
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.)
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
`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.
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
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)
(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.
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
People v. Melendez. 55 N.Y.2d at 451, 449 N.Y.S.2d at
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
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
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.
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.
III. HERNANDEZ'S CLAIM THAT HE WAS DENIED THE RIGHT TO FULLY
CROSS-EXAMINE DETECTIVE LAURO 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
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
"[T]rial judges retain wide latitude insofar as the
Confrontation Clause is
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
(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
(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
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
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.
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.
Hernandez's habeas claim, that his Confrontation Clause rights were
violated by the limitation on cross-examination of Detective Lauro,
should be denied.
IV. HERNANDEZ'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
SHOULD BE DENIED AS UNEXHAUSTED BUT DEEMED EXAUSTED AND PROCEDURALLY
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
A. The Unexhausted But Deemed Exhausted and
Procedurally Barred Doctrine*fn34
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.
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.
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
B. Application to Hernandez's Ineffective
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
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
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.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
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
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).