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April 9, 2004.

ALEJANDRO LOPEZ, Petitioner; -v.- CHARLES R. GREINER, Superintendent, Greenhaven Correctional Facility, and HON. ELLIOT L. SPITZER, Attorney General, State of New York, Respondents

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


Alejandro Lopez, an inmate at Greenhaven Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He argues that he received ineffective assistance of counsel at his state trial and that Justice Leslie Cracker Snyder, who presided at that trial, should have recused herself because of her alleged participation in certain pretrial investigative activities. For the reasons that follow, the petition will be denied.


  On November 17, 1988, a New York jury convicted Lopez of criminal possession of a controlled substance in the first degree, N.Y. Penal Law § 220.21, and conspiracy in the second degree, id. § 105.15, crimes for which he was sentenced to consecutive terms of incarceration of, respectively, twenty — five years to life and eight and one — third to twenty — five years. At trial, the State presented evidence to show that between 1985 and 1987, Lopez controlled a narcotics trafficking and distribution ring known as the "Rock Organization," which sold glassine envelopes of crack — cocaine labeled "Rock," "Solid" or "Rock Solid," in the vicinity of 507 East 11th Street in Manhattan. (Resp. Br. 4-5.) Then — New York City police officers Frank Bose and Bob Barchiesi played the chief roles in the investigation that culminated in Lopez's conviction, and in 1992, they published a book about the case entitled Rock Solid.*fn1 (Lopez's arguments refer frequently to this book.) The investigation continued for several years and involved numerous incidents ancillary to Lopez's offenses of conviction. Only facts relevant to the present petition will be recited here.

 I. The Search of the Loft

  On August 21, 1985, a federal magistrate judge issued a warrant to search the fifth floor apartment of 405 Greenwich Street in Manhattan ("the Loft"). (Pet., Ex. I.) Lopez contests the factual basis for and validity of the warrant, and the evidence before the Court fails to disclose or make clear several important facts relevant to the somewhat atypical circumstances of its issuance. Despite being the principal police investigators with knowledge of Lopez's Rock Organization, neither Bose nor Barchiesi signed the affidavit presented in support of the search warrant; and despite the apparent absence of a relationship between the Loft and any ongoing federal investigation, the warrant application was presented to a federal magistrate without, at least insofar as the record discloses, the participation of a prosecutor, state or federal.*fn2 Patrick Marshall, whom Lopez identifies as a policeman designated to work on a state — federal narcotics task force (Pet ¶ 24), prepared the warrant affidavit (Pet, Ex. I.)

  Marshall's affidavit avers that he spoke with two confidential informants, CM and CI — 2. CI — 1 told Marshall that (1) he had numerous contacts with a cocaine distribution organization, which tried to recruit him on several occasions; (2) in June 1985, he saw cocaine and assorted narcotics paraphernalia in the Loft; (3) through his observations of and conversations with members of the organization, he became aware of the trademark manner in which the organization packages and distributes cocaine; (4) "on August 19, 1985, [he] saw two members of the organization leaving [the Loft] carrying packages which appeared to contain cocaine"; and (5) the organization sells cocaine labeled "Solid" in the vicinity of 507 East 11th Street in Manhattan. (Id. ¶¶ 1-3.)

  CI — 2 told Marshall that (1) on or about June 1, 1985, while present in the hallway outside the Loft, members of the organization tried to recruit him "to aid the sale of cocaine"; (2) on two prior occasions, while present in the Loft, he observed large quantities of cocaine stored in shoe boxes situated in an area referred to by a member of the organization as the "office"; and (3) the office held a safebox containing cash and cocaine, which CI — 2 saw a member of the organization put inside the safebox. (Id. ¶ 4.)

  Marshall also testified that "through independent investigation," he learned that one Raul Feliciano, a member of the organization, had been charged in a New York State complaint with a felony murder related to narcotics trafficking. On August 20, 1985, New York City police officers saw Feliciano "posing as a blind man" outside of 405 Greenwich Street, as well as "another member of the organization." Feliciano shouted something to the other member, and "three other men and a woman exited 405 Greenwich Street, joined [him, and] hurriedly entered an automobile," which "began driving in an evasive manner." The police arrested them. (Id. 15.)

  Rock Solid does not mention Marshall. Bose and Barchiesi relate that they initially brought Irma Garcia (a/k/a "Blondie") and Raphael Martinez (a/k/a "Juahito"), a married couple that sold a brand of cocaine called "Pony — Pak," id. 32, to a meeting with a number of state prosecutors. Id. 52. The prosecutors listened to the witnesses, and then one of the prosecutors said, "Everything here is hearsay, not admissible in a state court," an appraisal with which the others agreed. Id. 53. Another prosecutor characterized the evidence as "stale." Id. Frustrated by the prosecutors' refusal to help them, Bose and Barchiesi spoke with John McCormack, a police officer "deputized to seek a warrant through the federal courts," and in the early afternoon, "they received word that a search warrant for the [Loft] had been issued." Id. 54.

  Rock Solid's account thus suggests that all of the evidence in support of the warrant had been gathered by August 21, 1985, the same date on which, in the morning, Bose and Barchiesi had their unsuccessful meeting with state prosecutors, and in the early afternoon, received word that a federal court had issued the warrant. Indeed, Chapter Seven, which describes these events, is subtitled "August 21, 1985." Id. 52. But the District Attorney disputes this chronology. In a brief dated June 14, 2000, filed in response to Lopez's motion to vacate his sentence pursuant to N.Y. Crim. Proc. Law § 440.10, the District Attorney asserted:
Bose and Barchiesi met with ADAs [at] the Office of the Special Narcotics Prosecutor on August 16, 1985, not August 20. The Warrant was not signed until August 21, 1985. Thus, the police officers had several days to investigate the Rock Organization further before the Warrant was issued. This is borne out by the supporting affidavit itself. The affidavit references information related to events occurring on August 18 — 20.
(Pet., Ex. D at 39 n. 10.) Other evidence before the Court — in particular, hearing transcripts of proceedings related to the District Attorney's prosecution of Lopez's brother Eduardo — suggest that Bose and Barchiesi arrested Garcia and Martinez on August 15; that the police interviewed them separately; that under interrogation, Garcia and Martinez made certain statements against penal interest; that their statements corroborated one another, that they served as confidential informants from August 15 to 21; and that the police independently corroborated at least some of the factual details, including those related to criminal activity, provided by Garcia and Martinez. (Pet. Ltr. dated Oct. 9, 2002, App.; Resp. Ltr. dated Oct. 30, 2002, Annex.) Moreover, in one of the transcripts, Bose testifies that "Garcia and Martinez were taken in before the [federal] district court, reaffirmed their information and the warrant was issued." (Resp. Ltr. dated Oct. 30, 2002, Annex at 12.) Many of these facts, if verified, would bear significantly on the warrant's validity. This evidence will be reviewed, to the extent relevant, in connection with the discussion below. On the strength of Marshall's affidavit, then — Magistrate Judge Leonard Bernikow issued a warrant authorizing a search of the Loft for narcotics, narcotics paraphernalia, and records or proceeds of narcotics transactions. (Pet., Ex. I.) When the police executed the warrant, they recovered four and three — eighths ounces of cocaine, assorted narcotics paraphernalia, firearms, financial records of the Rock Organization's cocaine sales, and paperwork bearing Lopez's name and address, including his lease and various utilities bills. (Resp. Br. 7-8.) Largely on the basis of this evidence, a jury convicted Lopez of criminal possession of a controlled substance in the first degree. (Pet. ¶ 4.) While the State presented ample additional evidence of Lopez's guilt of the conspiracy charge, Lopez's conviction for the possession charge, which carried the more severe sentence of twenty — five years to life, depended fundamentally on the fruits of the warrant. (Id. ¶¶ 4, 28.)

 II. Alleged Judicial Impropriety

  Then — New York State Supreme Court Justice Leslie Crocker Snyder presided at Lopez's trial. Lopez alleges, again relying principally on purported facts derived from Rock Solid, that in "the two years leading up to [his] arrest, [Bose and Barchiesi] consulted Judge Snyder about this investigation, and she gave them advice and provided assistance to help them build their case." (Pet. ¶ 16.) According to Lopez, Bose and Barchiesi "repeatedly consulted, and were aided in their investigation by, Judge Snyder." (Id. ¶ 8 3.) Only two passages in Rock Solid, however, conceivably support this allegation.

  The first recounts Bose and Barchiesi's decision to fly to Puerto Rico themselves, in their personal capacity and without formal police authorization, to arrest Lopez. Rock Solid 236-38. At that time, according to Rock Solid, Bose and Barchiesi decided "that, rather than be accused of running a totally clandestine operation, they would notify everyone and anyone who was not in a position to stop them. That translated to anyone outside of the job who did not have the will or the authority to sabotage their plans." Id. 238. This group included Justice Snyder. Rock Solid says nothing, however, about consultations or participation by Justice Snyder in this or any other aspect of the investigation; only that Bose and Barchiesi informed her, as an individual "who was not in a position to stop them," of their intention to travel to Puerto Rico. to arrest Lopez.

  The second passage describes Justice Snyder's alleged response upon learning that Lopez had been taken into custody in Puerto Rico, but not extradited because of certain turf and public relations battles among federal, New York, and Puerto Rican law — enforcement agencies. At that time, Rock Solid relates, Barchiesi notified, among others, "ADA Patrick Conlon and Judge Leslie Crocker Snyder, both of whom responded without hesitation." Id. 260. Rock Solid does not make explicit the nature of Justice Snyder's "respon[se]," but Barchiesi and Bose relate that, shortly thereafter, they received offers of assistance from various law — enforcement agencies. Id. 260-61. Again, Rock Solid does not indicate the Justice Snyder did anything to assist or advise the investigating police officers. In her disposition of Lopez's post — conviction motion pursuant to N.Y. Crim. Pro. Law § 440.10, which, like the present petition, relied heavily on alleged facts and inferences drawn from Rock Solid. Justice Snyder stated emphatically that she "had nothing to do with writing the book nor did [she] verify or approve anything contained in it." (Pet., Ex. F at 3.)

 III. Defense Counsel's Preparation for and Conduct at Trial

  While the gravamen of Lopez's Sixth Amendment claim is that his trial counsel failed to challenge the warrant for the Loft, Lopez makes two other arguments in support of his claim that he received ineffective assistance of counsel. First, counsel's opening statement allegedly made promises that he failed to keep — for example, that he would present evidence to show that Lopez ran a legitimate business, not a narcotics organization; that he would show that Lopez did not live on a palatial estate in Puerto Rico; and that he would present certain witnesses. (Pet. ¶¶ 12, 37-54.) Second, because of counsel's alleged failure to review certain discovery materials, he "opened the door" to the elicitation of inflammatory evidence about threats ascribed to Lopez by the prosecution's chief witnesses, Bose and Barchiesi, which otherwise would not have been admitted into evidence and which prejudiced Lopez. (Id. ¶¶ 13, 60-81.) These negligent acts and errors, Lopez argues, combined with counsel's failure to make a suppression motion, denied him the effective assistance of counsel guaranteed by the Sixth Amendment.

 IV. Procedural History

  On December 13, 1988, Justice Snyder sentenced Lopez to consecutive terms of incarceration of twenty — five years to life and eight and one — third to twenty — five years. For reasons not clear from the record, it took nearly ten years to resolve Lopez's direct appeal. On November 10, 1998, the Appellate Division affirmed, People v. Lopez. 682 N.Y.S.2d 127 (1st Dep't 1998), and on December 28, 1998, the New York Court of Appeals denied leave to appeal. 92 N.Y.2d 1034 (1998) (Bellacosa, J.). Lopez then brought a collateral attack on his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. He argued, as he does here, that he received ineffective assistance of counsel and that Justice Snyder should have recused herself because of her alleged participation in the investigation culminating in Lopez's arrest. In view of the latter claim, Lopez asked Justice Snyder to recuse herself from hearing his § 440.10 motion. (Pet., Ex. C at 43.) By order of December 7, 2001, Justice Snyder found no basis to recuse herself and denied the § 440.10 ...

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