The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Jeremiah Brinson ("Brinson"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court on charges of first degree robbery (N.Y. Penal Law § 160.15(3)) and third degree criminal possession of a weapon (N.Y. Penal Law §265.02(1)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Brinson's conviction stems from the alleged robbery of Jeremy M . Gavin ("Gavin"). Gavin, the complainant and the sole witness to the crime, testified that at about 1:30 a.m. on May 28, 1997, he was walking down Main Street in the City of Geneva after leaving a local bar, the Rum Runner. T.43.*fn1 According to Gavin, a black man whom he did not know approached him and asked if he could spare a few dollars. T.44. Gavin stated that as he was attempting to extract a few bills from his wallet, the man grabbed at the wallet. T.45. Gavin testified that he "tried to defensively push him away" but "ended up sprawled on the ground." T.45. Gavin related that the man then pulled out a razor knife, raised it up about shoulder-height, bent down, picked up the money that had fallen out of the wallet (about $60) and started to walk away. T.46-47. Gavin stated that as the man drew the knife from his pocket, a piece of paper fell out; this turned out to be Brinson's Social Security card which Gavin brought to the police station when he reported the crime. Gavin testified that he followed his assailant "for a little while" but "gave it up" because he "figured it was pretty much a lost cause" and he "didn't want to get hurt." T.48. Gavin described the person who robbed him as a black man wearing jeans, a white sweatshirt and a black baseball cap. T.52.
Shortly thereafter, Officer Mark Cirone ("Cirone") observed Brinson about one-tenth of a mile from the alleged robbery scene. Since Brinson matched the description given by Gavin, Cirone transported him to the police station where Gavin identified Brinson at a show-up identification procedure. The police found Brinson to be in possession of a razor knife which Gavin eventually identified as the knife with which he was threatened. However, Brinson did not have any money on him. Brinson's Social Security number was confirmed during the arrest procedure; it was the same number as the one on the card Gavin claimed fell out of the robber's pocket. See T.91-112.
Brinson's version of the events of that evening as told by him and his supporting witness was poles apart from Gavin's version. Defense counsel called Joel Richardson ("Richardson") who testified that on the night of the incident, he was driving around downtown Geneva with Brinson and Shawn Dunson ("Dunson"). T.126. As they passed by the Rum Runner, a "white dude" asked if he could get a ride to Pulteney Street. They agreed, and the man got into the car.
According to Richardson, the man never identified himself. T.126. Richardson testified that he asked the passenger for gas money, but the man said that he did not have any. T.127. Richardson then dropped the man off and drove away. Defense counsel did not ask Richardson whether the white man to whom he had given a ride was present in the courtroom. The prosecutor then moved to have the testimony stricken in its entirety, and the court agreed. Defense counsel did not object or attempt to recall the witness. T.128.
Next, Brinson testified that as he was driving around with Richardson and Dunson, they encountered Gavin coming down the street. T.137. According to Brinson, Gavin came up to him and said, "[C]ould you hook me up with a dime bag of weed[?]" T.138. Gavin explained that he and his girlfriend had just broken up, and his "connection" was out of town. T.138. According to Brinson, Gavin got into the back seat of Richardson's car and sat next to Brinson. Brinson explained that he had taken his razor knife out of his back pocket and placed it on the car seat because he could not sit on the knife and was afraid of breaking it. T.141. Brinson testified that he used the knife, which he called a "carpet cutter" at his job at the Ramada Inn. T.141. When they got to Pulteney Street, Brinson got out of the car and put the knife back in his pocket. Gavin said he could only get a "nick" (a nickel bag) because he only had $5. At that point, Brinson became suspicious that Gavin was a "narc" and said, "[G]et away from me, man, I'm going home." T.142. Brinson then started to walk to his sister's house on Pulteney Street. According to Brinson, Gavin started following him saying, "[J]ust go half with me . . . . all I want to do is get high . . . I'm having a bad night." T.143. At that point, Brinson spied a police car and was worried what the police would think if they saw a "black and white guy [sic] walking around" at that late hour. T.144. Brinson testified that Gavin, who was still following him, "made some kind of motion" to the police. Brinson said to Gavin, "[Y]ou are a narc, aren't you" and kept walking hurriedly away. T.144. Gavin then yelled after him, "[Y]ou Nigger, come here, Nigger[.]" T.145. Brinson testified that he was walking home when a police car pulled up and an officer took him into custody because he fit the description of the perpetrator of a robbery that had been reported earlier.
Brinson also testified that he had lost his Social Security card approximately one month prior to the incident, and that he had requested and been re-issued a new one because he needed identification for his job at the Ramada Inn, where he was employed at the time of the incident.
T.150. Brinson claimed that he did not have the new card on his person that night.T.150-51. He also testified that the card found at the scene and introduced into evidence was the card that had been missing for a little over a month. T.174. He admitted that the card appeared to be in the same condition as when he had lost it. T.174-75.
The jury convicted Brinson of both counts of the indictment. On the robbery charge, he was sentenced to a determinate term of imprisonment of eighteen years with a five-year concurrent sentence on the criminal possession charge.
On direct appeal, the Appellate Division of New York State Supreme Court unanimously affirmed his conviction on October 1, 1999. People v. Brinson, 265 A.D.2d 879, 697 N.Y.S.2d 221 (App. Div. 4th Dept. 1999). The New York Court of Appeals denied leave to appeal on December 3, 1999. People v. Brinson, 94 N.Y.2d 860, 725 N.E.2d 1097, 704 N.Y.S.2d 535 (N.Y. 1999).
Represented by counsel, Brinson collaterally attacked his conviction by means of an application pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court.
Counsel argued that trial counsel was ineffective in failing to demand a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), to suppress Gavin's identification of Brinson on the basis that the show-up identification procedure conducted at the police station was inherently suggestive. Counsel also argued that trial counsel should have asserted that Brinson's arrest was without probable cause; should have introduced documentation from the Social Security Administration that Brinson had requested a new Social Security Card prior to the date of the alleged robbery; and failed to properly question defense witness Joel Richardson, which led to the striking of Richardson's testimony on motion of the prosecutor. This motion was denied on January 6, 1999 without opinion in a summary order. It appears that counsel filed a notice of appeal, but apparently leave to appeal the denial of the C.P.L. § 440.10 motion was not sought.
In January 2001, represented by counsel, Brinson challenged the effectiveness of his appellate counsel in an application for a writ of error coram nobis and argued that the prosecutor's cross-examination of him was improper. This application was summarily denied by the Appellate Division on May 2, 2001. Brinson's habeas petition followed on June 7, 2001. During the petition's pendency, Brinson filed another coram nobis application on November 9, 2001; it was denied on April 26, 2002.
As grounds for habeas relief, Brinson states that he "relies on the issue's [sic] within his direct appeal dated January 14, 1998. The issue's [sic] within his C.P.L. 440.10 Motion dated December 30, 1998. And the issue's [sic] within his Motion for Writ of Error Coram Nobis dated January 18, 2001. For Federal Habeas corpus review . . . ." Upon review of the foregoing pleadings, the Court concludes that Brinson has raised the following grounds for federal habeas relief: (1) improper limitation of cross-examination; (2) denial of effective assistance of trial counsel; (3) prosecutorial misconduct on summation; (4) harsh and excessive sentence and vindictive sentence; (5) insufficiency of the evidence with regard to the charge of first degree robbery; (6) and ineffective assistance of appellate counsel. Respondent answered the petition and interposed the defenses of untimeliness*fn2 and non-exhaustion. For the reasons set forth below, the petition is granted.
Respondent raises the defense of non-exhaustion with regard to a number of Brinson's claims. In particular, respondent argues that the ineffective assistance of counsel claims and the claim of newly discovered evidence*fn3 brought in support of the C.P.L. § 440.10 motion are not exhausted because Brinson failed to appeal the denial of the motion and therefore did not complete one full round of state court review as to those issues. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). Respondent also contends that Brinson's claims of prosecutorial misconduct and evidentiary insufficiency are unexhausted because Brinson failed to fairly present these claims in federal constitutional terms to the state courts for review.
With respect to the C.P.L. § 440.10 claims, I note that Brinson raised the exact same claims, almost verbatim, on his earlier direct appeal. Thus, the claims raised on the C.P.L. § 440.10 motion have been through one full round of appellate review in state court: they were raised before the appellate division on direct appeal, and leave to appeal was sought with respect to them. Therefore, respondent is incorrect in its assertion that the claims are unexhausted. For some reason, in denying the C.P.L. § 440.10 motion, the county court did not rely on C.P.L. § 440.10(2)(a) which provides that a court must deny a § 440 motion when the issues raised therein were previously determined on the merits upon direct appeal. N.Y. Crim. Proc. Law § 440.10(2)(a). Had the county court done so, the claims arguably would have been procedurally defaulted. However, the county court denied them on the merits, so the Court must consider them here.
With respect to Brinson's claims of prosecutorial misconduct and insufficiency of the evidence, it is true, as respondent claims, that counsel did not explicitly cite federal law in support of his arguments. However, a habeas petitioner has a number of ways to fairly present a claim in state court without citing "chapter and verse" of the Constitution, including "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc); accord, e.g., Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir. 1999).
Turning first to the insufficiency-of-the-evidence claim, the test for sufficiency of the evidence to support a conviction is the same under both New York and federal law. Compare Jackson v. Virginia, 443 U.S. 307, 319 (1979) (holding that, when evaluating a federal habeas petitioner's challenge to the sufficiency of the evidence the question for the court is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt") with People v. Bleakley, 69 N.Y.2d 490, 515 N.Y.S.2d 761, 763 (N.Y. 1987) ("For a court to conclude . . . that a jury verdict is supported by sufficient evidence, the court must determine whether there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law satisfy the proof and burden requirements for every element of the crime charged.") (internal citation omitted). As such, the method of analysis to be used in deciding the federal claim was readily available to the state court. Bisaccia v. Attorney Gen'l of the State of New Jersey, 623 F.2d 307, 310 (3d Cir.), cert. denied, 449 U.S. 1042, 101 S.Ct. 622, 66 L.Ed.2d 504 (1980). Consequently, I conclude that Brinson "fairly presented" his evidentiary insufficiency claim to the state courts. See Strogov, 191 F.3d at 193 (citing Evans v. Court of Common Pleas, 959 F.2d 1227, 1231-33 (3d Cir. 1992) (citing Daye with approval and finding exhaustion where petitioner had presented a state claim of insufficient evidence to the state courts and then raised a functionally equivalent federal constitutional claim of insufficient evidence on her habeas petition)).
I likewise agree with Brinson that the prosecutorial misconduct claim is exhausted as well. Appellate counsel cited state court cases which in turn relied upon federal constitutional decisions in order to analyze a defendant's claim that the prosecutor's misconduct denied him a fair trial. See Petitioner's Appellate Brief at 18 (citing, e.g., People v. Tassiello, 300 N.Y. 425, 430 (1950) ("Knowing, as we do, that statements, such as those now challenged, addressed to a jury by a prosecuting officer in the trial of a criminal case 'are apt to carry much weight against the accused when they should properly carry none' . . .") (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). Indeed, New York's case law proscribing certain behavior by the prosecution is grounded in Fifth Amendment due process concerns. See, e.g., People v. Crimmins, 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975) (comment of the prosecutor in summation with respect to defendant's failure to testify on her own behalf was improper and constituted constitutional error under the Fifth Amendment of the Federal Constitution and Article 1, § 6 of the New York State Constitution). I note that appellate counsel also cited People v. Crimmins, supra, in his brief. Moreover, the facts alleged by Brinson are "well within the mainstream of constitutional litigation," see Daye, 696 F.2d at 194, as petitioners routinely raise similar claims of prosecutorial misconduct as grounds for habeas relief.
Respondent does not assert the defense of non-exhaustion with respect to the remainder of Brinson's claims, and indeed, they appear to be fully exhausted and properly before the Court on habeas review.
To prevail under 28 U.S.C. § 2254, as amended in 1996 by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication on the merits of his federal constitutional claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
C. Merits of the Petition
1. Ineffective Assistance of Trial Counsel and Appellate Counsel
In order to prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), a habeas petitioner must satisfy a two-part test. First, a petitioner must demonstrate that counsel's performance was so deficient that counsel was not functioning as "counsel" within the meaning of the Sixth Amendment to the Constitution. Id. at 688. In other words, a petitioner must show that his attorney's performance "fell below an objective standard of reasonableness." Id. Second, a petitioner must show that counsel's deficient performance prejudiced him. Id. at 694. To establish the "prejudice" prong of the Strickland test, a petitioner must show that a "reasonable probability" exists that, but for counsel's error, the outcome of the trial would have been different. Id. at 694. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel's performance was inadequate. "[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697.
A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993)). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and that absent counsel's deficient performance, there was a reasonable probability that defendant's ...