The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Robert C. Mullins ("Mullins"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in New York State Supreme Court (Monroe County) on two counts of first degree assault and two counts of second degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
Mullins's conviction stems from two separate assaults with a firearm that occurred in the City of Rochester. Under indictment #454/94 filed July 14, 1994, Mullins was charged as an accomplice in the July 16, 1993, shooting of Everton Brown, and as a principal in the January 1, 1994, shooting of Bobby Lee. Mullins's severance motion was denied by Monroe County Court (Malloy, J.). Mullins was tried before a jury and found guilty of all counts in the indictment. The following factual recitation is taken from the briefs of the petitioner and district attorney on direct appeal. Citations to the trial transcript are those of the parties.*fn1
On July 16, 1993, Everton Brown ("Brown") was shot on the front porch of his home at 195 Adams Street in the City of Rochester. Brown had come to the front door in response to someone calling his name. T.157. When Brown opened the door, he was able to see the person who was calling him, and he identified Mullins as this individual at trial.*fn2 As soon as Brown came into sight, Mullins stepped aside and a man by his side began shooting at Brown. T.161. The shooter was never identified. Brown turned and ran back inside the house, but the shooter continued firing shots, hitting Brown three times. T.162. At the time of trial, Brown still had a bullet lodged in his hip. Immediately following the assault, Brown was in the hospital for about two months. At the time of trial, he had not been able to work in two years. T.165, 172-74.
Gladys Weems ("Weems"), Brown's girlfriend, told the police that she could identify Mullins as one of the two persons whom she saw on the night of the assault. At trial, however, she testified that she had done so only upon Brown's instruction, and that she now was certain that Mullins was not the person whom she saw that night. T.391-92. To rebut Weems's recanting testimony, the prosecution called Wendy Blaesi ("Blaesi"), an employee of the district attorney's office who had spoken with Weems. Blaesi testified that Weems told her that she (Weems) had changed her story and refused to identify Mullins at trial because she was afraid of Mullins.
On January 1, 1994, Bobby Lee ("Lee") answered a knock on his front door and, when he stepped outside, found Mullins standing there. T.43. Lee knew Mullins from having worked for him as a deejay in the past. T.45. Lee testified that he and Mullins stood face-to-face and were talking for a while. According to Lee, Mullins was saying that he had been robbed and that he knew Lee knew the "niggers" who did it. T.45, 50. Lee described Mullins as "fidgety" during their conversation. Suddenly, Mullins pulled out a .38 caliber gun. Lee began to run away, but he fell down. Mullins then walked up and shot Lee twice as he laid on the ground. Several months after the shooting, however, Lee signed an affidavit for an investigator employed by the defense in which he stated that Mullins was not the shooter. Lee repudiated this affidavit at trial, stating that it was the result of intimidation by Mullins. T.105-30. Lee's girlfriend, Wanda Cajigas ("Cajigas") witnessed the assault from inside Lee's house and testified at trial that she recognized Mullins after having met him once on the night before the shooting. T.140-45.
Some months after the January shooting, a .38 Beretta was recovered during an unrelated arrest of an individual who was not involved in the Lee and Brown incidents. According to the ballistics expert's examination of the bullet casings found at the crime scenes, this .38 Beretta was the same pistol that had been used to fire the shots at both Brown and Lee. T.314-16, 323-25. The expert testified that a spent bullet found at the scene of the Lee shooting was fired from the .38 Beretta and that a bullet recovered from the victim was consistent with having been fired from that pistol as well. (The remains of the second bullet were insufficient to make a final determination.)
Mullins did not testify in his behalf or call any witnesses but rather relied upon a defense of mis-identification with respect to both incidents. The jury convicted Mullins of all counts in the indictment. He was sentenced to twelve years to life on each of the four counts, with the sentences for the two charges arising from each incident to be served concurrently to each other but consecutively to the sentences for the other incident.
Represented by new counsel, Mullins appealed to the Appellate Division, Fourth Department, of New York State Supreme Court, which unanimously affirmed the conviction. People v. Mullins, 668 N.Y.S.2d 799 (App. Div. 4th Dept. 1998). The New York Court of Appeals denied leave to appeal. People v. Mullins, 680 N.Y.S.2d 649 (N.Y. 1998).
On June 17, 1999, Mullins petitioned the Appellate Division, Fourth Department, for a writ of error coram nobis on the ground that his appellate counsel was ineffective in failing to raise on direct appeal a properly preserved claim under Batson v. Kentucky, 476 U.S. 79 (1986). The Appellate Division denied Mullins's application in a summary order. Mullins appealed the decision to the New York State Court of Appeals; on January 12, 2000, that court dismissed the appeal because, at that time, denials of coram nobis applications were not appealable under New York's Criminal Procedure Law § 450.90(1).
This pro se habeas petition pursuant to 28 U.S.C. § 2254 followed in which Mullins asserts three grounds for relief: (1) that he was denied his right to due process when the trial court denied his severance motion; (2) that he was denied his right to due process because the evidence was insufficient to convict him with respect to all four counts of the indictment; and (3) that he was denied his Sixth Amendment right to effective assistance of appellate counsel due to his attorney's failure to raise a Batson argument on direct appeal. In its answer to the petition, respondent argued that the severance claim and the evidentiary insufficiency claim were "without foundation or merit." Respondent also alleges that the insufficiency claim is unexhausted.
On March 20, 2003, the Federal Public Defender's Office was appointed to represent Mullins. During a status conference held on April 21, 2003, respondent moved to dismiss the ineffective assistance of counsel claim on several grounds, including that the claim improperly was raised as part of an untimely second petition. The Court denied the motion in an order entered May 26, 2005 (Docket #21), and directed respondent to bear the costs of producing the voir dire transcripts necessary for disposition of Mullins's ineffective assistance of counsel claim. The matter is now fully submitted and ready for decision. For the reasons set forth below, the petition is granted.
A petitioner must exhaust all available state remedies either on direct appeal or through a collateral attack of his conviction before he may seek a writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). The exhaustion of state remedies requirement means that the petitioner must have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). A claim is properly exhausted when the state court is fairly apprised of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20.
Respondent raises non-exhaustion as a defense only with respect to Mullins's insufficiency-of-the-evidence argument, stating that petitioner "failed to raise this in the New York State Court of Appeals." Respondent's Answer at 4 (Docket #7). It appears, however, the Mullins has withdrawn his insufficiency-of-the-evidence claim. First of all, in his reply memorandum of law, Mullins only argued the ineffective assistance of appellate counsel claim and the denial of severance claim. See Petitioner's Reply Memorandum of Law (Docket #11). In addition, Mullins wrote that "[p]petitioner concedes to point II of respondent's answer." Petitioner's Memorandum of Law at 4 (Docket #11). Mullins evidently is referring to Point II of respondent's memorandum of law, which is attached to its answer to the petition.
In Point II, respondent argues that Mullins's insufficiency-of-the-evidence claim is without merit. See Respondent's Memorandum of Law at 4 (Docket #). In the last paragraph of the memorandum, respondent adds that the claim is also unexhausted for unspecified reasons; respondent provides no further argument on this point. Based upon Mullins's failure to argue the insufficiency claim in his reply memorandum of law, and his unequivocal statement that he does not contest respondent's arguments regarding his insufficient evidence claim, the Court concludes that Mullins has ...