The opinion of the court was delivered by: Hugh B. Scott United States Magistrate Judge Western District of New York
Before the Court is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 filed by James "Pinky" Brown ("Brown").*fn1 Brown challenges his state court conviction on the following grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) not being present during his Sandoval hearing and (4) not being present during the trial court's handling of jury notes before further instructions were given on a fourth note.
Brown and Lawrence Close ("Close") were charged in connection with the murder of Frank Reiter on August 5, 1980. In connection with that crime, Brown and Close were charged with four counts of murder in the second degree, robbery in the first degree and burglary in the second degree. Close testified at Brown's trial.
More specifically, on August 5, 1980, the petitioner and Close entered the home of eighty-eight year old Reiter at 705 Sycamore Street in Buffalo. (Vol. 1, Dec. 7, 1981, at 108-109, 318)*fn2 While Brown and Close attempted to take a television from Reiter's home, Close noticed Reiter looking out from his bedroom. (Vol. 1 at 318-323, 403-409). He told Brown and Brown proceeded to Reiter's bedroom. (Vol. 1 at 409). Close then went into the bedroom and saw the petitioner hitting Reiter in the face, chest and arms with his fists. (Vol. 1 at 324-325, 410). Brown told Close to beat Reiter and to ask Reiter where his money was located. (Vol. 1 at 326, 411, 413). Close did not do as Brown asked. (Vol. 1 at 326, 414). Brown then left the bedroom, came back and again began to beat Reiter with his fists. (Vol. 1 at 326-327, 414, 420-422).
Close told the petitioner to "stop hitting the man because he is an old man." (Vol. 1 at 327). Close then told Brown he was going to leave and made his way towards the door. (Vol. 1 at 327-328). Close testified that he saw Jimmy Coons in the doorway as he left the apartment and went to the front of the house. (Vol. 1 at 327-330). The petitioner and Coons also left. (Vol. 1 at 332). Fifteen or twenty minutes later, Close walked past Reiter's apartment and saw Brown and Coons carrying a television into the backyard. (Vol. 1 at 333). The next day, around one o'clock in the afternoon, Patricia Rhodes returned to her apartment above Reiter's. (Vol. 1 at 108-110). Rhodes noticed Reiter's inside door was partially opened and that the panel closest to the door knob had been kicked out. (Vol. 1 at 116). Rhodes saw Reiter's feet sticking out from his bedroom door, when she called a friend to come over. (Vol. 1 at 116-119). Together they entered Reiter's apartment and saw Reiter's injuries, at which point they called 911. (Vol. 1 at 119-123).
Reiter suffered a broken nose; semi-circular bruises and other injuries of his chest; burn marks on his right arm, including a burn which went through the skin, subcutaneous tissue and muscle of the forearm; a collapsed lung, pneumonia contracted as a result of his other injuries, and a series of broken ribs (Vol. 2 at 262-264). Reiter died as a result of these injuries. (Vol. 2 at 272).
A jury trial took place from December 7, 1981 to December 17, 1981. The petitioner testified on his own behalf and denied ever knowing or seeing the victim or being involved in any way in the crimes with which he was charged. The petitioner suggested that Close and the other witnesses were motivated to falsely testify against him because they disliked him and wished to exculpate Close. Two defense witnesses gave testimony to undermine Close's credibility, and other witnesses corroborated Close's testimony.
The petitioner was convicted of two counts of Murder in the Second Degree (Penal Law 125.25-3), a class A felony, Robbery in the First Degree (Penal Law 160.15-1), a class B felony and Burglary in the Second Degree (Penal Law 140.25-1(b), a class C felony. The court determined that the brutality of the crime shocked the conscience of the community and the court, and sentenced Brown to an indeterminate term of incarceration of 25 years to life for the felony murder charges, an indeterminate term of 12 1/2 to 25 years for the robbery and an indeterminate term of 7 1/2 to 15 years for the burglary.
In the interests of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairly presented" to the state courts.*fn4 See Ayala v. Speckard, 89 F. 3d 91 (2d Cir. 1996), citing Picard v Connor, 404 U.S. 27, 275, 92 S.Ct 509, 512, 30 L.Ed 2d 438 (1971); Daye v Attorney General of New York, 696 F. 2d 186, 191 (2d Cir. 1982) (en banc), cert denied, 464 U.S. 1048 (1984).
A state prisoner seeking federal habeas corpus review of his conviction must first exhaust his available state court remedies with respect to issues raised in the federal habeas petition. Rose v Lundy, 455 U.S. 509 (1982) To meet this requirement, the petitioner must have raised the question in a state court challenge to his conviction and put the state appellate court on notice that a federal constitutional claim was at issue. See Grady v. Le Ferve, 846 F. 2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F. 2d 684, 688-89 (2d Cir. 1984).
Respondent does not contest the petitioner's exhaustion of state court remedies. Based on the record before the Court, it appears that the petitioner has exhausted his state court remedies and therefore review of the claims ...