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May 10, 2004.

BORYS DIAZ, Petitioner
VICTOR HERBERT Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Pro se prisoner Borys Diaz ("Diaz") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"). Diaz was convicted by a jury in New York State Supreme Court of murder in the second degree and of conspiracy in the second degree, for which he was sentenced to indeterminate terms of imprisonment from 25 years to life and from 8 1/3 years to 25 years for the two charges respectively. Diaz alleges that his rights under both the federal and New York State Constitutions were violated during different portions of his criminal proceedings in state court. Specifically, Diaz asserts four grounds for relief: (1) his absence during certain off-the-record sidebar conferences during the voir dire of four prospective jurors violated his right to be present at all material stages of his trial; (2) the New York State appellate court failed to correct alleged errors in the trial court's accomplice corroboration charge to the jury; (3) his sentences for the two charges for which he was convicted should have been imposed concurrently rather than consecutively; and (4) his counsel rendered ineffective assistance at the trial by stipulating to the unavailability of an unindicted co-conspirator, thereby permitting the admission of out-of-court statements; and that his appellate counsel was likewise ineffective for failing to challenge on appeal the actions of trial counsel. Respondent Victor Herbert, Superintendent of the Attica Correctional Facility (the "State") where Diaz is imprisoned, interposes both procedural and substantive arguments in opposition to Diaz's petition. For the reasons discussed below, Diaz's petition is denied in its entirety.



  On December 14, 1993, Lillian DeJesus ("DeJesus") was killed by a single gunshot wound to the head as she walked out of her place of employment in Bronx County, New York. DeJesus was the newly-hired Chief Financial Officer of Promesa, a non-profit organization that provides community services related to substance abuse, among them, financial assistance to individuals suffering from substance abuse problems. Diaz, who also worked at Promesa, and two co-defendants, Jeffrey Rivera ("Rivera") and Wayne Haywood ("Haywood"), all were charged with DeJesus's murder and with conspiracy to commit the crime.

  According to the Indictment and the evidence adduced at Diaz's trial, Diaz conspired with others to murder De Jesus for about a month before the shooting occurred. On the day of the murder, to carry out the crime, Diaz provided Rivera and Haywood with the pistol used in the shooting and transported his accomplices to where DeJesus worked. Rivera and Haywood, lying in wait outside Promesa's headquarters, shot and killed DeJesus when she emerged from the building with two co-workers. Diaz paid Rivera and Haywood moments later. Diaz apparently had DeJesus murdered because DeJesus had initiated an investigation into discrepancies in Promesa's accounting records. At the time of the murder, the investigation had revealed that large sums of money were unaccounted for in a division of Promesa where Diaz worked as a caseworker and where he had access to cash.

  A New York State Supreme Court jury convicted Diaz on charges of murder in the second degree and conspiracy in the second degree.*fn2 For the murder conviction, the court (the "trial court") sentenced Diaz to an indeterminate term of imprisonment from 25 years to life. For the conspiracy conviction, Diaz received an indeterminate sentence of imprisonment from 8 1/3 years to 25 years, to be served consecutively with the sentence for the murder charge.*fn3

  With new counsel, Diaz appealed his conviction to the New York State Supreme Court, Appellate Division, First Department (the "Appellate Division"). Diaz raised four arguments on direct appeal: (1) his absence from sidebar conferences with prospective jurors that were excused from jury service violated his right to be present at all material times during his trial; (2) the trial court committed errors in its accomplice corroboration charge to the jury; (3) his sentences should have been imposed concurrently rather than consecutively; and (4) the sentences imposed were unduly harsh and excessive in light of his criminal history. Diaz's appellate counsel did not raise an ineffective assistance of trial counsel claim on direct appeal to the Appellate Division.

  The Appellate Division held Diaz's sentence in abeyance and remanded the case to the trial court for a reconstruction hearing on the first issue, namely, to determine whether four members of the venire that were called to off-the-record sidebar conferences in the presence of counsel for both parties were ultimately dismissed for cause or on consent. See People v. Diaz, 690 N.Y.S.2d 454 (App. Div. 1st Dep't 1999). The trial court held the reconstruction hearing on October 22, 1999, where the assistant district attorney who prosecuted Diaz at trial (the "ADA") and Diaz's trial counsel testified with regard to the discussions held at sidebar regarding the four particular prospective jurors.

  After considering the testimony at the reconstruction hearing, and based upon its own recollection of the trial, the trial court concluded that the four members of the jury pool in question, whose excusals form the grounds for Diaz's claim that he was not present at all material stages of his proceedings, were excused for cause, notwithstanding that the trial court stated on the record that they were excused on consent. (See Hearing Tr. at 39:16-40:10.) Specifically, the trial court found that during the voir dire, these four potential jurors were excused because they represented that they had some connection with law enforcement and upon further questioning, they expressed doubt as to whether they would be able to weigh the testimony of a law enforcement officer on the same basis as that of any other witness and/or as to whether, based upon their ties to law enforcement, they could maintain impartiality while deliberating. (See id. at 41:6-43:4.)

  On appeal, the Appellate Division affirmed Diaz's conviction. See People v. Diaz, 706 N.Y.S.2d 23 (App. Div. 1st Dep't 2000). In affirming, the court found no basis to disturb the trial court's holding that these venire persons were, in fact, excused for cause and that "such excusals are in the nature of an uncontested excusal for cause, and thus defendant could not have made a meaningful contribution to any of the sidebar discussions with the jurors. . . ." Id. at 23 (internal quotations and citation omitted).

  Diaz, through his appellate counsel, then requested leave to appeal the first three issues raised before the Appellate Division to the New York State Court of Appeals, namely, his absence from sidebars during questioning of prospective jurors, the alleged errors in the trial court's corroboration charge, and the propriety of the trial court's imposition of consecutive sentences. In a decision without published opinion, the New York Court of Appeals denied Diaz's leave to appeal. See People v. Diaz, 735 N.E.2d 420 (N.Y. 2000).

  In September 2001, Diaz proceeded to file his pro se habeas corpus petition before this Court asserting the same issues raised to the Appellate Division with the exception of the excessive sentence claim. The following year, Diaz filed a pro se petition before the Appellate Division for a writ of error coram nobis. In this petition and subsequent amendment thereto, Diaz asserted an ineffective assistance of appellate counsel claim on a host of grounds, among them, his counsel's failure to raise on appeal trial counsel's ineffectiveness for stipulating to the unavailability of three co-defendants, which permitted the admission at trial of inculpatory out-of-court statements. (See Addendum at Att. B.)

  Diaz sought and obtained from this Court a stay of his habeas corpus petition until he could exhaust his ineffective assistance of counsel claim through his writ of coram nobis. The Appellate Division denied Diaz's coram nobis petition in a decision without a published opinion. See People v. Diaz, 762 N.Y.S.2d 866 (App. Div. 1st Dep't 2003). Diaz again filed leave to appeal to the New York Court of Appeals, and again, leave was denied without a published opinion. See People v. Diaz, 798 N.E.2d 353 (N.Y. 2003). Diaz then filed an addendum to his habeas corpus petition to add his claim of ineffective assistance of trial and appellate counsel, which the Court considers together with his original petition.


  As discussed above, Diaz advances four arguments in the instant petition. First, Diaz contends that he was deprived of his federal constitutional right under the Sixth Amendment to be present at all material stages of his trial when he was not present at four off-the-record sidebar discussions with individual members of the jury pool. (See Petition at 25-29.) The State counters that this claim is unexhausted for habeas corpus review, and is otherwise meritless. (See St. Mem. at 2-7.)

  Second, Diaz argues that the trial court provided the jury an erroneous charge on the issue of accomplice corroboration in violation of the New York State Constitution and the Due Process and Confrontation Clauses of the United States Constitution. (See Petition at 29-36.) The State argues that the Court should decline to review this claim because it was rejected by the Appellate Division on independent and adequate state grounds, and because such a claim is not cognizable on habeas corpus review. (See St. Mem. at 8-13.)

  Third, Diaz argues that the Appellate Division failed to modify the trial court's imposition of consecutive sentences and that this alleged error violated his rights under the federal and New York State Constitutions. According to Diaz, the act that formed the basis of the murder conviction was also a material element of the conspiracy conviction, and thus, the sentences for these two crimes should have been imposed to run concurrently. (See Petition at 37-39.) The State argues that such a claim is not proper for review under habeas corpus and that the sentences imposed were not in violation of applicable New York State law. (See St. Mem. at 14-16.)

  Finally, Diaz contends that his trial counsel was ineffective for stipulating to the unavailability of an unindicted co-conspirator who made incriminating out-of-court statements about Diaz to an accomplice. These out-of-court statements were introduced through the accomplice who testified at trial. (See Addendum at 3-5.) Diaz also raises a claim of ineffective assistance of appellate counsel on the grounds that his appellate counsel failed to raise his trial counsel's alleged errors on direct appeal. The State opposes this basis for relief on the grounds that Diaz has failed to make the requisite showing for such a claim. (See St. Mem. at 17-21.)



  1. General Principles

  A petitioner in custody pursuant to a judgment of a state court is entitled to habeas relief only if he can show that his detention violates the United States Constitution or federal law or treaties of the United States. See 28 U.S.C. § 2254(a). The purpose of federal habeas review of state court convictions is to "assure that when a person is detained unlawfully or in violation of his constitutional rights he will be afforded an independent determination by a federal court of the legality of his detention, even though the issue may already have been decided on the merits by a state tribunal." United States ex rel. Radich v. Criminal Court of New York, 459 F.2d 745, 748 (2d Cir. 1972).

  2. Exhaustion Doctrine

  Generally, a petitioner must have exhausted the remedies available to him in state court before seeking habeas corpus relief unless there is no state corrective process or it otherwise appears that such process would be ineffective to protect the petitioner's rights. See 28 U.S.C. § 2554 (b)(1). In order to meet this exhaustion requirement, a petitioner must present "the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it." Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003) (citation omitted). In other words, a habeas petitioner must have "fairly presented" in state court the claims that are raised in the habeas petition. Picard v. Connor, 404 U.S. 270, 275 (1971); see also Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Strogov v. Attorney General of New York, 191 F.3d 188, 191 (2d Cir. 1999); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). A federal court, however, retains discretion to entertain the merits of a petitioner's federal claim even if it is not exhausted in state court. See 28 U.S.C. § 2554 (b)(2).

  3. Standard of Review

  Pursuant to the various sub-sections of § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, this Court's review is guided by certain restrictions on the nature and extent of review that a federal court can conduct in considering a habeas petition. Under § 2254, if a state court adjudicates a petitioner's federal claim on the merits, a federal court on habeas corpus review must defer to the state court's determination of that claim unless such adjudication resulted in a decision that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or 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).

  A state court adjudicates a petitioner's federal claim "on the merits," and thus triggers the highly-deferential AEDPA standard of review, when it: (1) disposes of the claim on the merits; and (2) reduces its disposition to judgment. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). In so doing, the state court need not explicitly refer to either the particular federal claim or to any federal caselaw. See id. The only requirement is that the claim be finally resolved, with res judicata effect, on substantive rather than procedural grounds. See id. at 311.

  If the state court does not adjudicate a petitioner's federal claim on the merits, the state court's decision on the federal claim is entitled to no deference and instead, the federal court must apply a pre-AEDPA de novo review to the state court's disposition of the federal claim. See ...

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