The opinion of the court was delivered by: Block, Senior District Judge
In 1996, Patrick Keating ("Keating") was convicted after a jury trial in the Supreme Court of New York, Richmond County, for depraved-indifference murder for causing the death of Roseann Sorrentino while he was driving drunk. The trial received extensive news coverage, undoubtedly fueled by the fact that the victim was the wife of a New York City police officer.*fn1
Keating was sentenced to, and is presently serving, 25 years to life on the murder charge. The jury also found Keating guilty on every other charge for which he was indicted: second-degree manslaughter, first-degree vehicular manslaughter, second-degree vehicular manslaughter, two counts of driving while intoxicated, and two counts of leaving the scene of an accident; the top counts of this batch of convictions -- second-degree manslaughter and first-degree vehicular manslaughter -- each drew a sentence of 5 to 15 years. All sentences were concurrent.
After numerous failed efforts to overturn his convictions in state court, Keating then resorted to seeking relief in federal court by timely bringing this proceeding for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising numerous exhausted and unexhausted claims. His cause is a textbook example of the value of the writ as a means for challenging the constitutionality of a state-court conviction in federal court since one of Keating's claims -- albeit unexhausted --raises a serious constitutional issue as to the legitimacy of the depraved-indifference murder conviction. See Engle v. Isaac, 456 U.S. 107, 126 (1982) ("Today, as in prior centuries, the writ is a bulwark against convictions that violate fundamental fairness." (citation and internal quotation marks omitted)); Rosado v. Civiletti, 621 F.2d 1179, 1179 (2d Cir. 1980) ("When all other avenues of relief have been closed, our nation's courts have consistently vindicated the fundamental guaranties of due process of law by invoking their general jurisdiction . . . to free those unlawfully restrained through the issuance of a writ of habeas corpus.").*fn2
Keating's habeas petition was referred to Magistrate Judge Pollak, who issued a Report and Recommendation (the "R&R") recommending that the petition be denied. Keating timely objected to certain aspects of the R&R, requiring the Court to review them de novo. See 28 U.S.C. § 636(b)(1).
For the following reasons, the Court stays the proceeding to allow Keating to exhaust his constitutional claim that his appellate counsel was ineffective for failing to challenge the admission by the trial judge, over trial counsel's strenuous objection, of an irrelevant and prejudicial videotaped statement made by Keating to the police after his arrest. All other unexhausted claims are denied on the merits pursuant to 28 U.S.C. § 2254(b)(2). All exhausted claims are held in abeyance.
A. State-Court Proceedings
The Court need not repeat Magistrate Judge Pollak's detailed recounting of the facts leading to Keating's convictions and his numerous attempts to overturn them; the following summary suffices.
At trial, the prosecution established that Keating was driving while heavily intoxicated on the night of September 8, 1995. Driving well above the speed limit and ignoring traffic lanes and signals, he was involved in one minor accident and two near collisions on Sand Lane in Staten Island at around 10:30 p.m. Fifteen minutes later, Keating was speeding down Father Capodanno Boulevard on the southeastern shore of the island. At approximately 10:50 p.m., he sideswiped the car of Vincent and Roseann Sorrentino as the latter was getting her twin infant daughters out of the back seat. The impact shattered the rear window of the Sorrentinos' car, causing the two girls minor injuries. More tragically, Mrs. Sorrentino was carried on the hood of Keating's van for several hundred feet before she was thrown to the ground. She died almost immediately.
Some three hours after the accident, Keating was asked to take a blood alcohol concentration ("BAC") test; he consented:
Yes, sir. I will take the test. I will not release the police department or the doctors from responsibility of the needle breaking off in my arm, et cetera et cetera, but I will take the test freely and of my own will.*fn3 The statement was videotaped.
The prosecution referred to the videotape in its opening statement: "You'll be able to see [Keating]. Evaluate him for yourself. You'll see a videotape and listen closely to what he says and who he's concerned about roughly two hours after mowing Roseann Sorrentino down." Trial Tr. at 38 (emphasis added). Keating's counsel immediately objected, but was overruled. See id.
On the second day of trial, Keating's counsel challenged the prosecutor's anticipated proffer of the videotape into evidence on the ground that Keating's statements about needles and liability "ha[d] no relevance to these proceedings." Id. at 265. In response, the prosecutor argued that that portion of the videotape was "indicative of [Keating's] mind set on that night." Id. at 266. The trial judge was initially skeptical:
My gut feeling is I don't see where it has any relevance . . . his saying to the officers, "I'm going to hold the hospital responsible if they draw the blood." What does that have to do with the accident?
It would be a different story if we were talking about intent because the jury would then be able to consider what the defendant said or acted - what he said and how he acted before, during and after the event. But there's no intent in this case.
* * * [The prosecution wants] to have a retrospective of his application of the blood test to reflect upon and be a mirror into his conduct at the time. I think that's a stretch. I think that's a stretch.
Id. at 267-71. The prosecution persisted:
[The statement] certainly is relevant. It's what the defendant said. It's indicative of his mind set on that night and it's the actual words that he spoke some two hours after he struck and killed a young woman.
Judge, depraved indifference goes to not just his mind set of recklessness . . . . [The statement is] exactly relevant [because] it shows depravity . . . . [Depravity is] not just the physical acts. It can be what's in a person's mind and that can be evidence with regard to what they say.
It's relevant in whether or not when objectively viewed, it made him so uncaring, so callous, and so dangerous and inhuman as to demonstrate an attitude of total and utter disregard for the life of a person or persons in danger.
Id. at 266, 268-69, 272 (emphases added). In response, Keating's trial counsel argued that the prosecution's theory of relevance was a plain misstatement of the law of depraved indifference murder:
What [the prosecution] is addressing is the mental element, that goes to my client's state of mind. If it does, then the mental element is recklessness. I don't believe that statement in any way goes to the issue of recklessness and if he's addressing the issue of depraved indifference, then my argument is simply that the incident is over. It's completed. This is ex post facto and it's therefore ...