The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD J. HOLWELL, U.S.D.J.:
Eddie Rivera brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for second degree burglary following a jury trial in New York State Supreme Court, Bronx County. Mr. Rivera argues that he was deprived of effective assistance of appellate counsel by virtue of counsel's failure to argue that: (a) Mr. Rivera's conviction was repugnant to his co-defendant's acquittal on the same charge, and (b) the admission in evidence of a tape-recorded 911 call violated Mr. Rivera's Sixth Amendment right to confront and cross-examine witnesses against him. Mr. Rivera contends that, due to a conflict of interest, the appellate attorney also failed to argue that trial counsel was ineffective for failing to raise both of these claims in a timely manner. For the reasons that follow, I recommend that the petition be denied.
At approximately 4:30 p.m. on November 16, 1999, police responded to a report by an anonymous 911 caller that she had just seen two men, who the caller assumed were robbers, using toilet paper to cover peepholes in apartment doors on the third floor of her apartment building at 2339 Arthur Avenue in the Bronx. (H. 273, 281).*fn1 The caller described the men as Hispanic, one darker-skinned than the other, wearing hats and jackets, and carrying one or more bags. (H. 286). The radio transmission received by the arresting officers was of a "burglary in progress" at 2339 Arthur Avenue, where "two males with black jackets, one light skin, one dark skin, [were] carrying bags and covering peepholes." (Tr. 76, 131, 175).*fn2
When police arrived within approximately one minute of receiving this transmission, they observed the petitioner, a dark-skinned Hispanic man, and Luis Ortiz, a light-skinned Hispanic man, exiting the apartment building. (Tr. 38, 76-77, 133). Both men wore black jackets, but neither wore a hat. (Tr. 49, 77). Mr. Ortiz carried a white plastic shopping bag. (Tr. 58, 77). Mr. Rivera and Mr. Ortiz fled from the police officers and were apprehended after a short chase, after which they gave evasive responses to the officers' questions. (Tr. 78-79, 85, 103-04, 106, 134-35). The plastic bag carried by Mr. Ortiz contained an unopened package of toilet paper and a lockbox. (Tr. 80, 117, 162). A police search of Mr. Rivera's pockets revealed one black glove, a watch, approximately $32.00 in coins, and a change purse. (Tr. 127-28, 186, 190-91). A "lock picking device" was later found in his jacket pocket. (Tr. 44).
The lockbox was identified by the complaining witness, Luz Vega, as having been stolen from her apartment at 2339 Arthur Avenue. (Tr. 180, 207). Police observed white toilet tissue covering the peepholes in at least four apartment doors on the third floor of the building, and Ms. Vega's door appeared to have been pried open. (Tr. 40, 176-78, 221-24). A glove found in Ms. Vega's apartment matched the one in Mr. Rivera's pocket. (Tr. 224, 330). Procedural History
Mr. Rivera and Mr. Ortiz were tried jointly before a jury on October 4, 2000. The two-count indictment charged each defendant with burglary in the second degree, a class C felony, and criminal possession of stolen property in the fifth degree, a misdemeanor. Mr. Rivera was represented by Edmund Byrnes, an attorney employed by the Legal Aid Society. (Petition for a Writ of Habeas Corpus ("Petition"), ¶ 15; Affidavit of Dimitri Maisonet in Opposition to Petition for Habeas Corpus dated Aug. 15, 2005 ("Maisonet Aff."), ¶ 6). At trial, the prosecution was permitted to introduce into evidence a redacted recording of the 911 call. The court overruled defense counsel's hearsay objection, finding that the 911 tape fit within New York's "present sense impression" exception to the rule against hearsay. (Tr. 356-57).
The jury found Mr. Rivera guilty of second degree burglary in violation of New York Penal Law § 140.25(2). Mr. Ortiz was acquitted of the burglary charge and convicted of the lesser charge of criminal possession of stolen property. On December 1, 2000, Mr. Rivera was sentenced as a persistent violent felony offender to an indeterminate term of 16 years to life in prison.
Mr. Rivera challenged his conviction on direct appeal to the Appellate Division, First Department, in October 2002. On appeal, he was represented by Lorraine Maddalo, who, like trial counsel, was an attorney with the Legal Aid Society. (Petition, ¶ 15). Appellate counsel raised a single claim: that the glove and other evidence found on Mr. Rivera should have been suppressed as the fruit of an illegal search because the police lacked reasonable suspicion to stop and search him. (Petitioner's Appellate Brief ("Pet. App. Br."), attached as Exh. 1 to Maisonet Aff., at 12). Finding that the police had probable cause for the search and that Mr. Rivera's suppression motion had been properly denied, the Appellate Division affirmed his conviction on January 28, 2003. People v. Rivera, 756 N.Y.S.2d 1, 301 A.D.2d 463 (1st Dep't 2003). Mr. Rivera's application for leave to appeal to the Court of Appeals was denied on April 21, 2003. People v. Rivera, 99 N.Y.2d 657, 760 N.Y.S.2d 122 (2003).
On May 20, 2004, Mr. Rivera applied to the Appellate Division pro se for a writ of error coram nobis, claiming that he was denied the effective assistance of appellate counsel guaranteed to him by the Sixth Amendment. (Petitioner's Memorandum of Law in Support of a Writ of Error Coram Nobis ("Pet. Memo.") at 3, attached as Exh. 5 to Maisonet Aff.). Mr. Rivera's application raised the same claims that are the basis for his present habeas petition. The Appellate Division denied his application without opinion on December 16, 2005. (Order of the Appellate Division dated Dec. 16, 2004, attached as Exh. 7 to Maisonet Aff.).
Mr. Rivera filed this petition on April 15, 2005. The prosecution concedes that the petition is timely and opposes the petition on the merits. (Maisonet Aff., ¶ 17; Respondent's Memorandum of Law in Opposition to Petition for Habeas Corpus ("Resp. Memo"), attached to Maisonet Aff., at 4).
To obtain habeas corpus relief on grounds of ineffective assistance of appellate counsel, Mr. ...