The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT and RECOMMENDATION
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
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
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.
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 ...