The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge
MEMORANDUM OPINION AND
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
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), and Attempted Murder in the Second Degree (N.Y.
Penal Law §§ 110.00, 125.25 ), 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.
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
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 §
440.10 motion was denied on October 20, 1999. (See Wanderman Aff. Ex. 8.)
Petitioner subsequently filed this habeas corpus proceeding.
"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
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
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
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,
Accordingly, Petitioner's claims cannot be dismissed because of ...