The opinion of the court was delivered by: John F. Keenan, United States District Judge:
Before the Court is Eddy and Luis Marte's (collectively, "Petitioners") petition for a pre-trial writ of habeas corpus, pursuant to 28 U.S.C. § 2254, and accompanying request, pursuant to 28 U.S.C. § 2251, to stay criminal proceedings in the Supreme Court of the State of New York. For the reasons that follow, the petition is denied, and the application for a stay is denied as moot.
A.New York Supreme Court Trial
In a New York Supreme Court indictment dated May 12, 2008, Eddy and
Luis Marte were charged with one count of attempted robbery in the
first degree and two counts of attempted robbery in the second degree.
A jury trial before the Honorable John Cataldo commenced on February
19, 2009. At trial, the People endeavored to prove that Eddy Marte
paid an employee $16,000 to withdraw a worker's compensation claim,
and that once the claim was withdrawn, Eddy Marte displayed a gun and
demanded return of the $16,000 payment. The People also sought to
prove that when the employee tried to flee, Luis Marte chased him into
a bodega and assaulted him. On Thursday, March 5, 2009, the court
submitted the case to the jury. Along with the three counts in the
indictment, the court submitted for each count the lesser included
offense of attempted robbery in the third degree. (A4).*fn1
During deliberations on March 5, 2009, the jury sent several
notes requesting further explanation of the charges, readbacks of
testimony, and exhibits. (A5-A9). The jury did not reach a verdict
Deliberations resumed on Friday, March 6, 2009. The jury sent back two notes at 11:15 a.m. requesting additional exhibits, readback of testimony, and legal instruction. (A10- A11). Before the court had responded to those notes, the jury sent another note at 11:50 a.m. informing the court that:
We are decided about 1 count. We are very close to a decision on another. We are evenly split on the remaining counts and are at an impasse, barring the testimony & items we have requested. We request guidance. (A12). The court shared the contents of the note with counsel and solicited their input on how to respond. Counsel told the court that "we have conferred with the defendants, and we will accept a partial verdict at this time." (A20). The court declined to take a partial verdict and instructed the jury to continue deliberating. (A23). At 12:20 p.m., the jury sent another note stating:
We need clarification on how the 3rd degree attempted robbery charge applies on the separate charges, particularly for those of us who believe one or more defendants are guilty on some counts and not guilty on others. (A13). The court conferred with counsel and then gave the requested instruction. (A25-A28).
Juror No. 2 had previously informed the court of a plane trip, and the parties stipulated that if the jury had not reached a verdict by 1:00 p.m. on Friday, March 6, 2009, the only remaining alternate would be substituted for Juror No. 2. At approximately 12:40 p.m., the court confirmed that Juror No. 2 could not continue deliberating past 1:00 p.m. and, in accordance with the parties' agreement, seated the alternate in Juror No. 2's place. (A28-A29). The court instructed the jury to "begin deliberations anew" as "[y]ou are not bound by the determination that you made [when Juror No. 2] was part of that jury." (A30). Counsel then objected for the record to the court's decision not to take a partial verdict prior to dismissing Juror No. 2. (A31-A37).
Soon after, two jurors asked to speak with the trial judge. Juror No. 3 said that he was going to Philadelphia on Sunday and would not return until Tuesday, March 10, 2009. However, the court informed the juror that "you're going to have to come back and be available for Monday at 9:30 should you not reach a determination by the end of the day. I'll hold everybody until six o'clock, if that's possible, but I'm going to have to have you return." (A39). Similarly, Juror No. 8 told the judge that he could not serve the following week because he planned to attend a conference in San Diego. The judge repeated that since there were no remaining alternates, Juror No. 8 would be required to appear on Monday, March 9, 2009 to resume deliberations if the jury did not reach a verdict that day. (A41-A42).
Around the end of the day on Friday, March 6, 2009, the jury sent back two final notes. The first note, which did not bear a time, stated: "We are unanimous on 2 charges of 6. We are at an impasse on 4 charges of 6." (A17). The judge informed counsel that the jury had reached a verdict as to two of the counts, but, in the judge's words, were "deadlocked" on the third count. (A43). The second note, sent at 5:23 p.m., renewed Juror No. 8's request to be released from jury duty to attend the conference in San Diego. (A18). After conducting a conference with counsel pursuant to People v. O'Rama, 579 N.E.2d 189 (N.Y. 1991), to discuss how the court should respond to the jury's notes, the following exchange took place:
THE COURT: My inclination is to take the verdict and declare a mistrial as to the other charges. [The prosecutor]: I guess that sounds like where we're going, Judge.
THE COURT: Do counsel want to be heard? [Counsel for Eddy Marte]: No.
THE COURT: Okay. If there is nothing else, we'll bring them in.
COURT OFFICER: Yes, Judge. [Counsel for Eddy Marte]: Judge, you'll take a partial?
THE COURT: I'll take a partial verdict. (A43). The court proceeded to take not guilty verdicts on Counts One and Two as to both Eddy and Luis Marte. (A44-A47). After recording the partial verdict, the court inquired, "Counsel, anything for the record?" (A47). The prosecutor replied, "Nothing for the record, Your Honor." (Id.). Both defense counsel were silent.
Justice Cataldo then addressed the jury: All right. I want to thank you very much. I know we kept you much longer than I originally indicated it would take. I think you've performed an excellent service, clearly by virtue of your notes and your attention that you have truly ...