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June 22, 2005.

GARY FILION, Superintendent, Coxsackie Correctional Facility, Respondent.

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Julio Camerena ("Camerena") has made an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Camerena contends that his confinement by the state of New York is unlawful because: (1) his constitutional right to be present at all material stages of his trial was denied to him; (2) his conviction for third-degree criminal possession of a weapon should have been dismissed because the charge underlying that conviction is a non-inclusory concurrent charge to second-degree criminal possession of a weapon, for which he was also convicted; and (3) his sentence, concurrent indeterminate terms of 6 to 12 years for second-degree weapon possession and 2½ to 5 years for third-degree weapon possession, is excessive in light of mitigating factors pertinent to the incident out of which his conviction arose, and in light of the minimal nonviolent criminal record he had amassed at the time the sentence was imposed on him. The respondent opposes Camerena's application for a writ of habeas corpus. He maintains that Camerena failed to exhaust the remedies available to him in the state courts with respect to the claims raised in the instant petition. However, the respondent contends that the court, in accordance with 28 U.S.C. § 2254(b)(2), may consider the merits of the claims raised by Camerena in this petition and deny him the relief he seeks.


  Camerena was charged in an indictment returned by a Bronx County grand jury with murder in the second degree, manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third-degree. The charges stemmed from a mid-day shootout that Camerena had with an acquaintance and a concomitant scuffle he had with that person, during which Camerena fired a fatal shot into his opponent's head.

  Camerena elected to proceed to trial before a petit jury. During the voir dire phase of the proceedings, Camerena, through his trial counsel, advised the court that, in accordance with New York law, Camerena wished to exercise his right to be present at any sidebar conferences that would be held to discuss prospective jurors. See People v. Antommarchi, 80 N.Y.2d 247, 590 N.Y.S.2d 33 (1992); New York Criminal Procedure Law ("CPL") § 260.20. Throughout the first day of voir dire examination, Camerena accompanied his counsel to the sidebar whenever prospective jurors requested an opportunity to be heard outside the presence of all other prospective jurors. The transcript of those sidebar conferences notes Camerena's presence. The transcript of the second day of voir dire examination failed to indicate whether Camerena accompanied his counsel to the sidebar conferences. This predicament caused the New York State Supreme Court, Appellate Division, First Department, to which the petitioner had appealed from the judgment of conviction, to find that the record was "sufficiently ambiguous with respect to whether or not [Camerena] was present at the sidebar conferences during the second round of jury selection." People v. Camarena, 282 A.D.2d 210, 211, 722 N.Y.S.2d 380 (App. Div. 1st Dep't 2001). Therefore, the Appellate Division remanded the matter to the trial court for a reconstruction hearing.

  The trial court held the hearing, as it was directed to do, in order to resolve the factual ambiguity concerning Camerena's presence at the sidebar conferences held during the second day of voir dire examination. The trial court received testimony at that hearing from Camerena, his trial counsel, the trial prosecutor and the court reporter who recorded the jury selection proceedings stenographically. Following the conclusion of the hearing, the trial court transmitted to the Appellate Division the record generated during that proceeding, as well as a writing containing the court's factual findings and conclusions.

  The trial court concluded that, during the second day of voir dire examination, Camerena elected to remain at counsel table and to use headphones through which he could hear the official court interpreter's recitation of the conversations that the court, counsel and prospective jurors had at the sidebar conferences. The court indicated to the Appellate Division that Camerena was able to participate in those sidebar conferences because: (a) he was able to see the prospective jurors in profile; and (b) he had frequent conferences with his attorney to discuss the sidebar proceedings and to discuss whether the prospective jurors who participated in them should serve as trial jurors. By participating in this fashion in the sidebar conferences held during the second day of voir dire examination, the trial court concluded that the right conferred upon Camerena, to attend his trial and, in particular, the right conferred upon him, through New York law, see CPL § 260.20; Antommarchi, supra, to attend sidebar conferences with prospective jurors, was honored. According to the trial court, Camerena was able to participate in a meaningful way in that portion of the trial proceedings.

  After the trial court made its submission to the Appellate Division, the parties filed supplemental briefs with that court concerning the reconstruction hearing. Thereafter, the Appellate Division affirmed Camerena's conviction. It determined that the procedure employed during the second day of voir dire examination, and consented to by Camerena and his counsel, whereby Camerena remained "a short distance from a sidebar and [listened] on a headset to a simultaneous translation, by the official court interpreter, of the sidebar proceeding . . . in lieu of his physical presence at sidebars was beneficial as it would avoid contact with prospective jurors and the display of [Camerena's] incarcerated status as a result of his escort by court officers [during each trip to the sidebar]." People v. Camerena, 295 A.D.2d 109, 110, 743 N.Y.S.2d 433, 434 (App.Div. 1st Dep't 2002). Thus, in the circumstance of the underlying criminal trial, the Appellate Division found the procedure employed to permit Camerena to participate in sidebar discussions, while remaining at counsel table and using headphones, satisfied the dictates of Antommarchi.

  The Appellate Division also found that, with respect to the claim raised by Camerena, that his sentence should be reduced based upon his limited prior criminal history and case-specific mitigating factors, no basis for a sentence reduction existed. Furthermore, the Appellate Division found that Camerena's claim that his convictions for third-degree weapon possession should be set aside because the underlying charge was a non-inclusory, concurrent charge with the second-degree weapon possession charge made against him, was not preserved for appellate review; therefore, the court declined to entertain that claim. However, the Appellate Division noted that were it to review the claim, it would reject it.


  Exhaustion of Remedies

  Before a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254(b) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997); Daye v. Attorney General of New York, 696 F.2d 186, 190 (2d Cir. 1982) (en banc). Premised on the principles of comity, the exhaustion doctrine assures the "respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions," Daye v. Attorney General of New York, 696 F.2d at 191, and "increas[es] the likelihood that the factual allegations necessary to a resolution of the claim will have been fully developed in state court, making federal habeas review more expeditious." Id. Although the writ of habeas corpus provides a remedy for imprisonment in violation of federal law, id., state courts, as well as federal courts, are charged with protecting a criminal defendant's federal rights, and the exhaustion doctrine requires that state courts "be given the opportunity to consider and correct any violations of federal law." Jones, 126 F.3d at 413.

  To satisfy the exhaustion doctrine, a habeas corpus petitioner must meet a two-prong test. First, the petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye, 696 F.2d at 190-91 n. 3. A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Daye, 696 F.2d at 191. In particular, the same material factual allegations asserted in the federal habeas corpus petition must have been brought before the state court, in order to provide the state court with "a fair opportunity to rule on the claim." Daye, 696 F.2d at 191. Additionally, "the petitioner must have placed before the state court essentially the same legal doctrine [asserted] in [the] federal petition." Id. at 192. A petitioner must alert a state court ...

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