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September 23, 2004.

ARNOLD LYNN, Petitioner,
DENNIS BLIDEN, First Deputy Superintendant of the Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: KIMBA WOOD, District Judge


In June 2000, Arnold Lynn ("petitioner") filed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner, who appears pro se, argues that he was denied effective assistance of counsel at his trial, and seeks an order vacating his conviction. In July 2000, this matter was referred for a Report and Recommendation to Magistrate Judge Theodore H. Katz. On April 26, 2004, Judge Katz issued a Report and Recommendation (the "Report"), recommending that the petition be denied with prejudice. For the reasons stated below, the Court rejects the Report's recommendation, and grants the petition.

I. Background

  Because the facts are set forth in the Report, see Report at 2-5, and the Court assumes familiarity with the Report, the Court describes the facts here only briefly. On February 7, 1992, Kendrick Chandler and Jermaine Seippio were shot outside of an apartment building in the Bronx. Chandler died, and Seippio was hospitalized. Once the police arrived, they began to question people about the incident. Pedro Arriaga was soon arrested as the shooter, based on statements made to the police by two apparent eyewitnesses. Arriaga was apprehended one or two blocks away by Detective Beers, who apparently "pulled [Arriaga] out from under the rear of a car, while [Arriaga was] being assaulted by the crowd." (See Brief for Defendant-Appellant ("Def.'s Br."), at 36, attached to the Affidavit of Assistant District Attorney Daniel R. Wanderman, dated Dec. 29, 2000 ("Wanderman Aff."), as Exh. 1) (quoting Det. Beers's Report).

  While Arriaga's case was pending before the grand jury, a third apparent eyewitness told a friend that Arriaga was innocent. That eyewitness, Luis Quinones, had previously been asked by a police officer at the crime scene whether he saw what happened. Quinones told the officer that he did not see anything. After Quinones told his friend that Arriaga was innocent, that friend and Arriaga's mother implored Quinones to tell the police that he had witnessed the shootings, and that Arriaga was innocent. Quinones initially refused to get involved, because he was concerned about his own safety, and the safety of his family. However, approximately two weeks after the incident, and following a conversation with Arriaga's attorney, Quinones informed the police and the Assistant District Attorney ("ADA") that Arriaga was innocent. During that meeting, which took place on February 20, 1992, Quinones apparently told Detective Martinez that he "couldn't recognize the person" who committed the crime. (Wade Hearing Tr. 34).

  The police, who had already closed the investigation, resumed their questioning of area residents, including Seippio (the surviving victim) and the two eyewitnesses who had initially identified Arriaga as the shooter. Following those interviews, the charges against Arriaga were dismissed.

  It is unclear from the record when the reopened investigation began to focus on petitioner. However, on September 16, 1992, Detective Martinez showed Toby Patterson, a fourth apparent eyewitness to the shooting, an array of six photographs, one of which was of petitioner.*fn1 Patterson identified petitioner as the shooter. Petitioner was arrested two days later. Approximately one week after petitioner was arrested, Detective Martinez showed Quinones the same six photographs. Quinones also identified petitioner as the shooter. On September 24, 1992, Patterson and Quinones were transported, separately, to the District Attorney's Office, where they each independently of one another, viewed a lineup containing petitioner, and identified petitioner as the shooter.

  Petitioner's trial attorney, Arthur F.X. Henriksen, Esq. ("Henriksen"), filed a pre-trial motion to suppress the identifications made by Patterson and Quinones. On February 8, 1995, the Honorable John P. Collins conducted a Wade hearing. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). At that hearing, Detective Martinez testified about, inter alia, the circumstances surrounding the presentation of the photo array to Patterson and then Quinones, as well as the procedure followed during the subsequent line-ups. Justice Collins concluded that all of the police procedures were proper, and that the identifications were admissible. (Wade Hearing Tr. 44-45). Given his conclusion, Justice Collins did not consider whether either witness had an independent source upon which to base his identification of petitioner.

  Shortly thereafter, on February 16, 1995, the jury was selected, sworn, and given preliminary instructions. No trial was held the next day. During that day, on February 17, the ADA appears to have spoken with Patterson, and reviewed some police reports, presumably in preparation for trial. It was on that day that the ADA first discovered that Patterson had actually been shown the photo array two, separate times. The first time, Patterson failed to identify petitioner as the shooter. The second time, which took place approximately one week later, Patterson identified petitioner as the shooter. The second occasion is the one that Detective Martinez testified about at the Wade hearing; the first occasion had not been mentioned at the Wade hearing. Once the ADA learned about the earlier display of the photo array, he notified Henriksen by telephone. Upon learning about the earlier display of the photo array, Henriksen did nothing to seek to reopen the Wade hearing, and thus missed an opportunity to explore the circumstances surrounding Patterson's inconsistent identifications, including exploring whether Patterson was contacted by anyone during the week separating the two photo arrays.

  On February 21, the trial was scheduled to begin. Before the jury was called into the courtroom, the ADA informed Justice Collins about the earlier photo array, and told Justice Collins that the ADA found out about the earlier photo array only on Friday, February 17, when he was reviewing the police reports and speaking with Patterson. The ADA then stated that upon learning that Patterson had been shown the photo array on one previous occasion, and had failed to identify petitioner as the shooter, the ADA questioned Patterson about it; Patterson responded that he had recognized petitioner as the shooter "in his own mind" when he first saw the photo array, but he did not identify petitioner to the police at that time because "he was too afraid to say who did it." (Trial Tr. 15). Henriksen did not say anything to Justice Collins after the ADA brought these facts to the court's attention. Opening statements began later that day.

  At petitioner's trial, no physical evidence was offered that linked petitioner to the shootings. The only evidence offered that inculpated petitioner was the eyewitness testimony of Patterson and Quinones, both of whom made courtroom identifications of the petitioner as the shooter. The jury learned limited information about Arriaga's prior involvement in the investigation. In the ADA's opening statement, he told the jury that Arriaga had initially been arrested and charged with the shootings, but that Arriaga was released because the charges against him were unfounded. (See Trial Tr. 32). Detective Martinez testified briefly on direct examination about Arriaga's arrest and subsequent release as well (see id. at 157-58), and he was cross-examined on the subject more extensively by Henriksen (see id. at 208-14, 230-38). Henriksen did not offer any testimony or documentary evidence pertaining to the manner in which Arriaga was apprehended, namely, that he was found near the crime scene hiding underneath a car while being assaulted by a crowd. Henriksen also did not question Quinones about his apparent statement to Detective Martinez that he "couldn't recognize the person" who committed the crime. (Wade Hearing Tr. 34).

  Following his jury trial in Bronx County Supreme Court, petitioner was convicted of Murder in the Second Degree and Attempted Murder in the Second Degree. Petitioner was sentenced to an indeterminate term of incarceration of twenty years to life on the Murder count, and six to twelve years on the Attempted Murder count. Petitioner is serving the sentences concurrently.

  II. Procedural History

  On direct appeal, petitioner's appellate counsel argued that Henriksen was ineffective: (1) for failing to move to reopen the Wade hearing; (2) for failing to cross-examine Quinones about Quinones's statement to Detective Martinez shortly after the crime that "he couldn't recognize the person" who committed the crime, (Wade Hearing Tr. 34); and (3) for failing to properly argue for the admissibility of a portion of Detective Beers's police report containing Detective Beers's personal observation that he "pulled [Arriaga] out from under the rear of a car, while [Arriaga was] being assaulted by the crowd." (See Def.'s Br., at 36, Wanderman Aff., Exh. 1). On June 25, 1998, the Appellate Division, First Department, unanimously affirmed petitioner's conviction. See People v. Lynn, 251 A.D.2d 250, 673 N.Y.S.2d 913 (1st Dep't 1998). On December 2, 1998, petitioner's application for leave to appeal to the New 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 moved, pro se, to vacate his conviction, pursuant to N.Y.C.P.L. § 440.10. Petitioner claimed that Henriksen was ineffective because he failed to investigate petitioner's claim that he was misidentified, and he failed to call two exculpatory witnesses who could have testified that someone else committed the crime. (See Notice of Motion to Vacate Judgment, Wanderman Aff. Exh. 4). On January 21, 1999, the motion was denied as untimely, and as having been previously determined on the merits in petitioner's direct appeal. (See Decision of the Hon. John P. Collins, Wanderman Aff. Exh. 5). Petitioner next sought to reargue his section 440.10 motion, this time attaching the grand jury testimony of the two witnesses who initially identified Arriaga as the shooter. (See Notice of Motion for Reargument, Wanderman Aff. Exh. 6). That motion was denied on July 7, 1999. (See Decision of the Hon. John P. Collins, Wanderman Aff. Exh. 7).*fn2 Petitioner's application for leave to appeal the denial of his section 440.10 motion was denied on October 20, 1999. (See Wanderman Aff. Exh. 8).

  In June 2000, petitioner filed this petition for writ of habeas corpus. Petitioner initially argued that Henriksen was ineffective for the three reasons cited in his direct appeal, as well as the new reason cited in his section 440.10 motion (i.e., that Henriksen failed to elicit testimony from two exculpatory witnesses). Respondent moved to dismiss the petition for failure to exhaust state remedies. In a Memorandum Opinion and Order dated March 16, 2004, Judge Katz concluded that the only unexhausted claim was the one raised in petitioner's section 440.10 motion. Because petitioner had indicated his willingness to abandon that claim and proceed on the exhausted claims, Judge Katz dismissed the petition with respect to the unexhausted claim only, and denied respondent's motion to dismiss the petition with respect to the three fully exhausted claims. Respondent did not appeal that decision. On April 26, 2004, Judge Katz issued a Report recommending that petitioner's claim for ineffective assistance of counsel with respect to his three exhausted claims be denied on the merits. Petitioner filed objections to the Report, dated May 3, 2004, as well as supplemental objections, dated June 4, 2004, pursuant to Court order.*fn3 Respondent filed no objections to the Report, and did not respond to petitioner's objections.

  III. Discussion

  A. AEDPA Standard ...

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