Petitioner, Thomas Steward, acting pro se, commenced this action seeking habeas corpus relief under 28 U.S.C. § 2254. Petitioner is presently an inmate at the Auburn Correctional Facility. In 1996, he was convicted in a New York State court of Second Degree Murder, two counts of First Degree Robbery, and Fourth Degree Criminal Possession of a Weapon and was thereafter sentenced to a term of imprisonment. Petitioner contends that his conviction was imposed in violation of his constitutional rights and should be vacated.
This matter was referred to the undersigned by the Honorable Norman A. Mordue, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and is presently before this Court for a report and recommendation. (Docket No. 58).
II. FEDERAL HABEAS CORPUS PROCEEDINGS
Petitioner commenced this action on April 19, 2001, by filing a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1). On May 17, 2001, Petitioner was ordered by the Court to file an Amended Petition to clarify his claims and to help the Court determine whether his Petition was timely. (Docket No. 3).
Petitioner filed an Amended Petition on May 31, 2001. (Docket No. 5). In his Amended Petition, Petitioner asserted the following seven grounds for habeas relief: (1) that the trial court's conduct during jury deliberations deprived him of a fair trial, (2) that the verdict was against the weight of the evidence, (3) that his statement to police was involuntarily made, (4) that the trial court prevented him from presenting a defense, (5) that the trial court erred in admitting a brown leather coat and white Nike sneakers into evidence, (6) that the trial court erred in allowing the prosecution to raise his drug use in their direct case, and (7) that the cumulative errors deprived him of a fair trial. (Docket No. 5). Thereafter, Respondent filed submissions in opposition, asserting that some of Petitioner's claims were unexhausted and the rest were without merit. (Docket No. 15 & 16).
In May of 2003, Petitioner moved for a stay of his habeas proceedings so that he could exhaust "numerous federal claims" contained in his Amended Petition. (Docket No. 21).*fn1 Petitioner's motion was granted in an Order dated July 1, 2003. (Docket No. 23). On September 20, 2003, Petitioner filed a third CPL § 440 motion with the trial court, claiming ineffective assistance of trial counsel. Petitioner's motion was denied on January 21, 2004. On February 24, 2004, Petitioner moved for leave to appeal that denial to the Appellate Division Fourth Department. (Exhibit 8)*fn2 . Petitioner's leave to appeal was denied by the Appellate Division on April 14, 2004. (Exhibit 10)*fn3 . Nothing in the record denotes whether Petitioner exhausted any of his other "numerous federal claims."
Thereafter, Petitioner filed a Second Amended Petition on June 7, 2005. (Docket No. 50). Petitioner's Second Amended Petition lists only three grounds in support of habeas corpus relief, which included two claims from his previous petition and one new claim of ineffective assistance of counsel. Specifically, Petitioner's three claims are (1) that he was deprived of effective assistance of counsel, (2) that his statement was involuntarily made on March 25, 1993 and should have therefore been excluded from evidence, and (3) that the trial court erred in allowing evidence of Petitioner's drug use at trial. See (Docket No. 50). Thereafter, the Respondent filed a response in opposition. (Docket No. 55).
Ineffective Assistance of Counsel
Petitioner's first claim for habeas relief is based upon alleged ineffective assistance of trial counsel.*fn4 Specifically, Petitioner claims that Mr. Rossi and Mr. Vavonese were ineffective because they allegedly failed to review over 700 pages of exculpatory documents. Petitioner claims that these documents would have proven the theory that someone else committed the murder. Petitioner argues that various forensic reports and other reports mentioning interviews with potential witnesses could establish his innocence. See (Docket No. 21 p. 5).
Petitioner raised this specific aspect of his claim of ineffective assistance of counsel in his third CPL § 440 motion before the trial court. In a decision dated January 21, 2004, the trial court held that "[d]espite the procedural bars to the Defendant's claim, the court has reviewed the documents submitted by the Defendant, as well as, the entire trial transcript and there is no merit to the Defendant's claim." (Exhibit 7 at 7).*fn5
However, whether the records are exculpatory in the trial court's view is not the threshold issue that needs to be addressed. Rather, this Court must address whether Petitioner's trial counsel reviewed the documents. There is nothing in the record to suggest that the trial court ever asked Petitioner's attorneys whether they reviewed the alleged exculpatory documents. Respondent does not point to and there does not appear to be any evidence in the record that counsel reviewed the documents. Additionally, Respondent fails to adequately address whether, in light of the evidence at trial, Petitioner would have been prejudiced by trial counsel's failure to review these documents. See (Docket No. 55 at 7-10). Respondent simply asserts that "there is no reasonable probability that, but for counsel's alleged errors, th[e] result of the trial would have been different." (Docket No. 55 at 9). Respondent does not direct this Court's attention to specific instances in the trial transcript or evidentiary record linking this Petitioner to the crime.
"Where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry." Drake v. Portuondo, 321 F.3d 338, 346-47 (2d Cir. 2003)(internal quotation marks omitted; alterations from original omitted). The Second Circuit has stated that a "district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs." Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998). A full evidentiary hearing may not be necessary to resolve the type of factual dispute presented in this case. See Chang v. United States, 250 F.3d 79 (2d Cir. 2001). Instead, an affidavit from both of Petitioner's trial counsel explaining whether they reviewed the documents Petitioner is referring to, and if so, why they decided to pursue other avenues for ...