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United States District Court, S.D. New York

March 16, 2004.


The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge

This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636 (b)(1)(B) and (C) and Rule 72.1(d) of the Local Civil Rules of the Southern District of New York.

Petitioner Arnold Lynn was convicted after a jury trial in New York Supreme Court, Bronx County, of Murder in the Second Degree (N.Y. Penal Law § 125.25[1]), and Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00, 125.25 [1]), and was sentenced to concurrent, indeterminate terms of imprisonment of from twenty-five years to life and from six to twelve years, respectively. Petitioner seeks habeas relief pursuant to 28 U.S.C. § 2254, claiming that he received ineffective of assistance of counsel. Respondent has not addressed the merits of Petitioner's claim, contending instead that the claim is procedurally barred. For the reasons discussed below, the Court disagrees. Page 2


 I. Procedural History

  Upon his conviction, Petitioner, represented by counsel, brought a direct appeal, claiming that he was denied effective of assistance of counsel at his trial because his attorney (1) failed to move to reopen the Wade hearing after learning of new facts relating to Petitioner's identification, (2) failed to cross-examine a witness concerning his previous statement to the police that he would be unable to identify the perpetrator of the murder, and (3) failed to introduce evidence indicating that someone other than Petitioner was the shooter who killed the victim. (See Brief for Defendant-Appellant ("Def.'s Br."), attached to Affidavit of Assistant District Attorney Daniel R. Wanderman, dated Dec. 29, 2000 ("Wanderman Aff.") as Exhibit ("Ex.") 1.) On June 25, 1998, the Appellate Division, First Department, unanimously affirmed Petitioner's conviction, holding that his counsel's representation was effective and meaningful, and that any errors alleged by Petitioner would not have affected the outcome of his trial. See People v. Lynn, 251 A.D.2d 250, 673 N.Y.S.2d 913 (1st Dep't 1998), Wanderman Aff. Ex. 3. The Appellate Division noted that Petitioner did not seek to amplify his claims by collaterally challenging his conviction pursuant to N.Y. Crim. Proc. Law § 440.10, where his counsel's strategic decisions could have been explored. Id. On December 2, 1998, Petitioner's application to appeal to the New Page 3 York Court of Appeals was denied. See People v. Lynn, 92 N.Y.2d 1035, 684 N.Y.S.2d 500 (1998).

  On June 24, 1998, Petitioner filed a motion, pursuant to N.Y. Grim. Proc. Law § 440.10, claiming that his trial attorney was ineffective for failing to call two witnesses "who could have testified that someone else shot and killed the decedent." (Affidavit in Support of Motion to Vacate, Wanderman Aff. Ex. 4 ¶ 1.) On January 21, 1999, the motion was denied because the court concluded that the motion was untimely and the claim had been decided by the Appellate Division on direct appeal. (See Wanderman Aff. Ex. 5.) Petitioner sought to reargue the denial of the § 440.10 motion, attaching testimony before the Grand Jury in a related case, in which two witnesses testified that the victim was killed by Pedro Arriaga. (See Wanderman Aff. Ex. 6.) On July 7, 1999, the motion for reargument was denied on the grounds that it was procedurally barred because the issue raised had already been decided on the merits on direct appeal, and sufficient facts existed on the record to have permitted adequate appellate review.*fn1 See Decision of the Hon. John P. Collins, Wanderman Aff. Ex. 7. Petitioner's application for leave to appeal the denial of his § Page 4 440.10 motion was denied on October 20, 1999. (See Wanderman Aff. Ex. 8.) Petitioner subsequently filed this habeas corpus proceeding.

 II. Procedural Bar

  "It is now axiomatic that in `cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991)); see also Cox v. Miller, 296 F.3d 89, 100 (2d Cir. 2002). Accordingly, a federal court may not review a claim when there is a plain statement from the state court that it relied on a procedural default. See Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1989); Coleman, 501 U.S. at 737, 111 S.Ct. at 2558; Jones v. Vacco, 126 F.3d 408, 414 (2d Cir. 1997). "[I]n order for federal habeas review to be procedurally barred, a state court must actually have relied on a procedural bar as an independent basis for its disposition of the case, and the state court's reliance on state law must be unambiguous and clear from the face of the opinion." Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001); see also Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).

  Respondent argues that Petitioner's claims are procedurally barred because the court addressing Petitioner's claim of Page 5 ineffective assistance of counsel, in his § 440.10 proceeding, concluded that Petitioner's motion was untimely, and that the Appellate Division had already addressed the issue on Petitioner's direct appeal. (See Wanderman Aff. Ex. 2.) Moreover, for the same reason, the court denied Petitioner's motion to reargue the denial of his § 440.10 motion. (See Wanderman Aff. Ex. 11.) However, Respondent ignores the fact that at least some of Petitioner's claims of ineffective assistance of counsel were considered and rejected on their merits by the Appellate Division.

  On direct appeal, Petitioner argued that his counsel was ineffective because (1) he failed to seek to reopen the Wade hearing, (2) failed to cross-examine one of the witnesses who identified Petitioner at the line-up about earlier statements he made to the police about a different person being the shooter and about his inability to identify the shooter, and (3) failed to introduce in evidence a portion of a police report that contained a statement which implicated someone else as the shooter. The Appellate Division rejected these claims on their merits. (See Wanderman Aff. Ex. 4.) Petitioner sought, and was denied, leave to appeal that decision to the Court of Appeals. See People v. Lynn, 92 N.Y.2d 1035, 684 N.Y.S.2d 500 (1998). Thus, the ineffective assistance claims raised on direct appeal were fully exhausted.

  The only claim which is procedurally barred is Petitioner's claim that his attorney failed to investigate evidence supporting Page 6 his misidentification defense, and failed to call two witnesses who would have testified that he was not the shooter. That is the claim he raised in his § 440.10 motion, which the court concluded was procedurally barred.

  Moreover, Petitioner has stated explicitly that he does not seek to raise the claim raised in his § 440.10 proceeding in this action. (See Petitioner's Traverse at 6 & 8.) Indeed, to the extent that his Petition can be construed to raise that claim, Petitioner has moved to amend the Petition to delete it. (See Declaration of Arnold Lynn, dated Apr. 1, 2001.)

  Accordingly, Petitioner's claims cannot be dismissed because of a procedural bar.

  * * * *

  The parties have not addressed the merits of Petitioner's claims in their submissions, and have reserved the right to do so should the Court determine that the claims are not procedurally barred. The Court is prepared to rely on the state court briefs, from Petitioner's direct appeal, which addressed the claims now raised in the Petition. Should either party wish to supplement those briefs, he shall promptly advise the Court. Such submissions must be filed by April 21, 2004.

 So Ordered.

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