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Pepe v. Walsh

United States District Court, N.D. New York

May 24, 2012

VINCENT PEPE, Petitioner,
v.
JAMES WALSH, Superintendent, Sullivan Correctional Facility, Respondent

Order Filed: November 28, 2011

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For Petitioner: BARRY FALLICK, ESQ., JILLIAN S. HARRINGTON, ESQ., OF COUNSEL, PLATZER LUCA & PEARL, LLP, New York, New York.

For Respondent: JODI A. DANZIG, ESQ., Assistant Attorney General, OF COUNSEL, HON. ANDREW M. CUOMO, Attorney General for the State of New York, New York, New York.

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DECISION and ORDER

Hon. Glenn T. Suddaby, U.S. District Judge.

Currently before the Court, in this habeas corpus proceeding filed by Vincent Pepe (" Petitioner" ) against Sullivan Correctional Facility Superintendent James Walsh (" Respondent" ), pursuant to 28 U.S.C. § 2254, is a Report-Recommendation (1) recommending that (a) Petitioner's application for a writ of habeas corpus be denied, and (b) the Court issue a Certificate of Appealability, and (2) referring the professional conduct of two attorneys for review by (a) the Chief United States District

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Judge of the Northern District of New York, and (b) the Appellate Division, Fourth Department. (Dkt. No. 102.) For the reasons stated below, the portions of the Report-Recommendation that address Petitioner's application for a writ of habeas corpus are accepted and adopted in their entirety, except the portion of the Report-Recommendation recommending that the Court issue a Certificate of Appealability; the portions of the Report-Recommendation referring the professional conduct of two attorneys for review by the Chief Judge and the Appellate Division will be addressed by Chief United States District Judge Gary L. Sharpe separate and apart from this Decision and Order; and Petitioner's application for writ of habeas corpus is denied.

I. RELEVANT BACKGROUND

A. Factual and Procedural History

Because the parties have submitted memoranda of law throughout the seven-and-a-half year duration of this case that demonstrate an accurate understanding of the factual and procedural history of this case, the Court will not provide a detailed recitation of that history in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court refers the reader to the Report-Recommendation for a detailed description of the factual and procedural history of the case. (Dkt. No. 102.)

B. Summary of Petitioner's Claims

Petitioner asserts the following three grounds for relief. First, Petitioner claims that he was denied the effective assistance of counsel due to a conflict of interest involving the simultaneous representation of prosecution witnesses by Attorneys Joseph Hobika, Jr. (" Hobika" ) and George Farber Aney (" Aney" ). ( See generally Dkt. No. 5.) Second, Petitioner claims that the prosecution violated its Brady disclosure obligations by failing to turn over exculpatory and impeachment evidence. ( Id.) Third, Petitioner claims that he was denied the effective assistance of counsel because his trial counsel, Kenneth P. Ray (" Ray" ), failed to procure expert forensic testimony. ( Id.)

C. The Report-Recommendation's Findings

On November 28, 2011, the Magistrate issued a Report-Recommendation recommending that Petitioner's application be denied. (Dkt. No. 102.) Generally, in pertinent part, the Report-Recommendation makes the following seventeen findings in support of its recommendations. First, because Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney were adjudicated on the merits, those claims are subject to the deferential standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). ( See generally Dkt. No. 102.) Second, consideration of evidence presented to the County Court in support of Petitioner's first[1] motion pursuant to New York Criminal Procedure Law (" CPL" ) § 440.10 (" 440.10 motion" ) based on a claim of ineffective assistance of counsel against Hobika and Aney is precluded, because the County Court " rested [its] decision upon an adequate and independent state law ground." ( Id.) Third, because a

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recent U.S. Supreme Court case, Cullen v. Pinholster, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), limits the Court's review of Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney to the record presented to the Appellate Division, Fourth Department (" Appellate Division" ), the Court is precluded from considering any evidence adduced at the Sparman hearing.[2] ( Id.) Fourth, Petitioner failed to rebut, with clear and convincing evidence, the trial court's holding that Petitioner had not established the existence of an attorney-client relationship with either Hobika or Aney during the pre-arrest period. ( Id.) Fifth, because there was no evidence before the Appellate Division to suggest that Hobika simultaneously represented Petitioner and Dominic Crocilla (" Crocilla" ) and/or Matthew Cuda (" Cuda" ) during the post-arrest/pre-indictment phase,[3] Petitioner failed to establish ineffective assistance of counsel by Hobika. ( Id.) Sixth, even assuming that evidence was presented to the Appellate Division demonstrating that Aney simultaneously represented Petitioner and Crocilla and/or Cuda during the post-arrest/pre-indictment phase, there was no evidence to support a finding that Petitioner's defense was adversely affected by Aney's simultaneous representation. ( Id.) Seventh, the Sparman hearing adduced evidence demonstrated that Hobika and Aney simultaneously represented Petitioner and Crocilla and/or Cuda; and, although that finding can have no bearing on Petitioner's habeas corpus application, the Report-Recommendation referred Hobika and Aney (a) for review by the Chief Judge of the Northern District of New York pursuant to Local Rule 83.4 of the Local Rules of Practice for this Court, and (b) to the Attorney Grievance Committee of the Appellate Division. ( Id.) Eighth, because the County Court deciding Petitioner's ineffective-assistance-of-counsel claim against Ray in Petitioner's 440.10 motion did not decide the claim either upon the merits or upon " an adequate and independent state law ground," consideration of Sparman hearing evidence is permitted. ( Id.) Ninth, Ray's affirmation dated September 8, 2008, was untruthful. ( Id.) Tenth, the Assistant Attorney General (" AAG" ) obtained and sought admission of " fraudulent, false, or perjured testimony" in the form of Hobika and Aney's testimonies, and Ray's affirmation. ( Id.) Eleventh, under either a denovo or AEDPA standard of review, the ineffective-assistance-of-counsel claim against Ray fails. ( Id.) Twelfth, Petitioner's claims against the trial court and District Attorney (" DA" ) for failing to investigate and/or address potential conflicts of interest are without merit, and, in any event, the claim against the DA is time-barred. ( Id.) Thirteenth, Petitioner's claim that the prosecution failed to turn over any police notes taken during interviews with Petitioner's accomplice, David Benner (" Benner" ), is purely speculative. ( Id.) Fourteenth, Petitioner suffered no prejudice when the prosecution failed to provide Petitioner with Benner's polygraph test results because, as a matter of

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law, Petitioner could not offer them as evidence at trial. ( Id.) Fifteenth, Petitioner's claim that Benner's arrest report was altered is unsupported by the evidence. ( Id.) Sixteenth, the trial court's finding that any non-disclosure of third-party suspects was harmless was not an unreasonable application of existing law, nor was it an unreasonable determination based on the facts in light of the evidence. ( Id.) Seventeenth, Petitioner's ineffective-assistance-of-counsel claim against Ray for failing to investigate forensic irregularities involving Benner's testimony fails, because (a) Petitioner has not offered any authority in support of his position that such failure was unreasonable, (b) Ray effectively cross-examined Benner, and (c) Petitioner has not established a substantial likelihood that the jury would have acquitted him based on a forensic expert's testimony. ( Id.)

Based on these findings, the Report-Recommendation recommended the following: (1) Petitioner's application for a writ of habeas corpus should be denied, and (2) the Court should issue a certificate of appealability (" COA" ) if it denies Petitioner's application for a writ of habeas corpus. ( See generally Dkt. No. 102.) Also based on these findings, the Report-Recommendation referred the professional conduct of Hobika and Aney for review by the Chief Judge of the Northern District of New York and the Appellate Division, Fourth Department. ( Id.)

D. Petitioner's Objection

On February 23, 2011, Petitioner filed an Objection to the Report-Recommendation. (Dkt. No. 114.) Generally, Petitioner's Objection asserts the following eleven arguments. First, the recent U.S. Supreme Court case, Pinholster, does not preclude the Court from considering the evidence adduced at the Sparman hearing. ( See generally Dkt. No. 114.) Second, the Appellate Division's decision was not a reasonable application of clearly established federal law, nor was it based on a reasonable determination of the facts. ( Id.) Third, the Court is permitted to consider the evidence submitted to the County Court in support of Petitioner's 440.10 motion as that evidence relates to Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney. ( Id.) Fourth, the Report-Recommendation erred in finding that the trial court's factual findings during the Huntley hearing are entitled to a presumption of correctness. ( Id.) Fifth, the evidence adduced at the Sparman hearing established that Hobika and Aney represented Petitioner prior to his arrest. ( Id.) Sixth, whether or not the Court considers the evidence adduced at the Sparman hearing, there is sufficient evidence to support a conclusion that Hobika and Aney suffered from actual conflicts of interest during the post-arrest/pre-indictment phase. ( Id.) Seventh, Hobika and Aney's actual conflicts of interest adversely affected Petitioner's defense. ( Id.) Eighth, Hobika and Aney's conflicts of interest pervaded and prejudiced Petitioner's state court proceedings. ( Id.) Ninth, Ray's representation of Petitioner amounted to ineffective assistance of counsel, because he failed to (a) call Hobika and Aney as witnesses at the Huntley hearing, (b) investigate whether Hobika and Aney suffered from conflicts of interests while they represented Petitioner, and (c) request preclusion of Crocilla and Pugliese's testimonies at trial. ( Id.) Tenth, there is sufficient evidence to support a conclusion that the trial court erred in failing to inform Petitioner of the conflicts of interest. ( Id.) Eleventh, notwithstanding the fact that the claim is time-barred, the Report-Recommendation erred in concluding that the DA did not have a duty to inform Petitioner of the conflicts of interest. ( Id.)

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On March 8, 2011, Respondent filed its Response to Petitioner's Objection. (Dkt. No. 115.) Respondent argues that, even if Hobika and Aney suffered from a conflict of interest at any time during their alleged representations of Petitioner, Petitioner failed to establish that such conflicts adversely affected the performance of either Hobika or Aney. ( Id. at 3.)

E. Respondent's Objection

On February 23, 2011, Respondent filed an Objection to the Report-Recommendation. (Dkt. No. 113.) Generally, Respondent's Objection asserts the following nine arguments. First, the Report-Recommendation mischaracterized the law on what constitutes an " actual conflict of interest." ( See generally Dkt. No. 113.) Second, because the record before the Court (including the evidence adduced at the Sparman hearing) does not demonstrate that Hobika and Aney simultaneously represented Petitioner and Crocilla and/or Cuda, Hobika and Aney could not have testified untruthfully at the Sparman hearing, and the AAG could not have knowingly introduced untruthful testimony. ( Id.) Third, the Report-Recommendation mischaracterized the evidence adduced at the Sparman hearing as suggesting that Aney encouraged Cuda to convince Petitioner to accept a plea bargain. ( Id.) Fourth, the Report-Recommendation improperly considered a claim that Petitioner did not raise in his application for a writ of habeas corpus. ( Id.) Fifth, the record before the Court, including the evidence adduced at the Sparman hearing, does not support the Report-Recommendation's finding that Ray's affirmation was demonstrably false, or that the AAG induced Ray to sign the affirmation " under seriously questionable circumstances." ( Id.) Sixth, the Report-Recommendation erred in finding that the County Court did not adjudicate Petitioner's ineffective-assistance-of-counsel claim against Ray in his 440.10 motion on the merits. ( Id.) Seventh, the Court should reject each and every instance in which the Magistrate overruled an objection by Respondent and sustained an objection by Petitioner in the Sparman hearing. ( Id.) Eighth, the Report-Recommendation erred in recommending that the Court issue a COA because the Magistrate's interpretation of Pinholster is " manifestly correct" ; and in any event, even if the Court considered the evidence adduced at the Sparman hearing, Petitioner did not make " a substantial showing of the denial of a constitutional right." ( Id.) Ninth, the Magistrate improperly used the Report-Recommendation to commence attorney misconduct investigations against Hobika and Aney. ( Id.)

Petitioner did not submit a Response to Respondent's Objection. ( See generally Docket Sheet.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review Governing a Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be " specific," the objection must, with particularity, " identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).[4]

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When performing such a de novo review, " [t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.[5]

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2),(3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition.[6] Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.[7] Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a " clear error" review, " the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.[8]

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After conducting the appropriate review, the Court may " accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

III. ANALYSIS

A. The Report-Recommendation's Findings Regarding Potential Attorney Misconduct

As noted above in Part I.C. of this Decision and Order, the Report-Recommendation includes findings that relate to potential attorney misconduct by Hobika and Aney during the early stages of the state court proceedings against Petitioner, and by the AAG during the Sparman hearing. (Dkt. No. 102 at 42-47, 54-55, 64.) Specifically, the Magistrate's seventh and tenth findings, as described above in Part I.C. of this Decision and Order, address these issues. ( Id.) Additionally, Respondent's second, third, fifth, and ninth arguments contained in its Objection, as described above in Part I.E. of this Decision and Order, object to these findings. (Dkt. No. 113 at 13-42, 43-45, 46-62.)

The Court will not address the Report-Recommendation's findings regarding potential attorney misconduct, as well as Respondent's objections to those findings, in this Decision and Order. This is because, after careful consideration, the Court finds that the outcome of Petitioner's application for a writ of habeas corpus is not contingent, in any way, on whether it adopts the Report-Recommendation's findings as they relate to these issues. Instead, as noted earlier, these issues have been submitted to Chief Judge Sharpe for his review, determination, and decision.

B. Petitioner's Objections

In accordance with Local Rule 72.1(c) of the Local Rules of Practice for this Court, the Court finds that all of Petitioner's objections are specific in nature because Petitioner identified the portions of the Report-Recommendation to which he objects with particularity, and Petitioner cited legal authority in an effort to support the objections. ( See generally Dkt. No. 114.) As a result, the Court subjects those portions of the Report-Recommendation to which Petitioner objects to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C).

After careful consideration of the parties' submissions and the Report-Recommendation, the Court rejects all of Petitioner's arguments in his Objection. Specifically, the Court finds Petitioner's arguments to be unpersuasive and/or reinventions of Petitioner's previous arguments contained in Petitioner's Sparman hearing summation (Dkt. No. 81), which the Magistrate had the opportunity to consider before issuing the Report-Recommendation. Moreover, the Court finds the Report-Recommendation's findings to which Petitioner objects are well-reasoned and supported by the relevant facts and law.

The Court would add only two points. First, the Court respectfully disagrees with the Report-Recommendation's finding that the Sparman hearing evidence adequately demonstrates that Hobika and Aney simultaneously represented Petitioner and Crocilla and/or Cuda during the post-arrest/pre-indictment phase, and that such simultaneous representation gave rise to an actual conflict of interest. (Dkt. No. 102 at 32-35.) The Second Circuit has determined that an " actual" conflict of interest (as opposed to a " per se" or " potential" conflict of interest) arises " when the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action." Armienti v. U.S., 234 F.3d 820, 823 (2d Cir. 2000);

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see also U.S. v. Fulton, 5 F.3d 605, 609 (2d Cir. 1993) (" In the multiple representation context, an attorney has an actual, as opposed to a potential, conflict of interest when 'during the course of the representation, the defendants' interests . . . diverge with respect to a material factual or legal issue or to a course of action.'" ) (quoting Cuyler v. Sullivan, 446 U.S. at 356 n.3 [1980]).[9] Once an actual conflict of interest has been established, the petitioner is then required to demonstrate his defense was adversely affected by the conflict of interest. Strouse v. Leonardo, 928 F.2d 548, 555 (2d Cir. 1991) (" If the court finds that [the petitioner's] representation was infected by an actual conflict of interest, it should then determine whether this conflict 'adversely affected' his performance." ) If the petitioner is able to demonstrate this, he is exempt from proving the " prejudice" prong of the Strickland test.[10] U.S. v. White, 174 F.3d 290, 295 (2d Cir. 1999) (holding that, where a petitioner's ineffective assistance of counsel claim is based on alleged conflict of interest, the petitioner " is entitled to a presumption of prejudice if he can demonstrate that his attorney labored under an actual conflict of interest and that the actual conflict of interest adversely affected his lawyer's performance" ).

Here, with regard to Aney, the Court is unable to find that the hearing evidence demonstrates that Aney simultaneously represented Petitioner and Crocilla and/or Cuda during the post-arrest/pre-indictment phase. (Dkt. No. 102 at 35 n.16.) Rather, the Court finds that the Sparman hearing evidence does not demonstrate that Aney's and Petitioner's " interests diverge[d] with respect to a material factual or legal issue or to a course of action" ( Armienti, 234 F.3d at 823) because there is insufficient evidence to conclusively establish when Aney's representation of Petitioner terminated. Although it is clear that Aney made an appearance at Petitioner's arraignment on March 16, 1994, the Sparman hearing testimony is inconclusive (and therefore unconvincing) as to whether Aney's representation terminated (1) immediately after the appearance,[11] (2) after the meeting on the same

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day with Petitioner's family,[12] (3) the night of March 16, 1994, when Aney visited Petitioner in jail,[13] (4) on March 18, 1994, when Petitioner and Ray executed a retainer agreement,[14] or (5) on March 22, 1994, when Ray made his first appearance on behalf of Petitioner.[15] In addition, it is clear that Aney acted as Crocilla's attorney on March 17, 1994, when Crocilla testified before the Grand Jury for three reasons: (1) Aney testified he met Crocilla at the DA's office on the morning of the Grand Jury proceedings at Crocilla's request (Dkt. No. 70 at 211); (2) Aney testified that he explained the Grand Jury procedure to Crocilla (Dkt. No. 70 at 211); and (3) Judge Dwyer testified that he declined, upon Aney's request, to discuss with Crocilla the substance of Crocilla's pending Grand Jury testimony before Crocilla testified (Dkt. No. 70 at 147-48). See In re Bonanno, 344 F.2d 830, 833 (2d Cir. 1965) (" We recognize that an attorney-client relationship arises when legal advice of any kind is sought from a professional legal adviser in his capacity as such." ). However, it is not clear when Aney's representation of Crocilla began, or whether his representation of Petitioner overlapped

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with his representation of Crocilla. Without knowing when Aney's representation of Petitioner ended and when Aney's representation of Crocilla began, the Court can only speculate as to whether Aney actually engaged in simultaneous representation. Because the Court cannot determine whether Aney actually engaged in simultaneous representation of Petitioner and Crocilla[16] during the post-arrest/pre-indictment phase, the Court cannot conclude that Aney operated under an actual conflict of interest.

Moreover, even if the Court were to find (or assume for the sake of argument, as the Appellate Division did) that Aney engaged in simultaneous representation of Petitioner and Crocilla, the Court finds that the Sparman hearing testimony did not demonstrate that Petitioner and Aney's " interests diverge[d] as to a material factual or legal issue or to a course of action." Armienti, 234 F.3d at 823. More specifically, the Sparman hearing evidence is unclear (and therefore unconvincing) as to whether (and if so, when), (1) Petitioner divulged information to Aney regarding Pugliese,[17] (2) Aney prohibited Petitioner from testifying before the Grand Jury,[18] and (3) Petitioner and Aney discussed a pre-indictment plea offer.[19] For all of these reasons, the Court finds that the Sparman hearing evidence does not demonstrate that Aney operated under an actual conflict of interest giving rise to a meritorious ineffective-assistance-of-counsel claim.

With regard to Hobika, the Court respectfully disagrees with the Report-Recommendation's finding that the Sparman hearing evidence demonstrates that Hobika simultaneously represented Petitioner and Crocilla and/or Cuda during the post-arrest/pre-indictment phase. (Dkt. No. 102 at 33 n.13.) The Report-Recommendation specifically found that, at the Sparman hearing, (1) " Cuda testified credibly that Hobika attended the grand jury proceedings as [Cuda's] attorney," and (2) to explain why he accompanied Cuda, " Hobika offered the preposterous claim that he accompanied Cuda . . . as a 'learning experience' and for 'moral support,' but not as his lawyer." ( Id.)

As for the first finding, after carefully reviewing the Sparman hearing record,

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the Court finds that Cuda inconsistently testified about who represented him (if anyone at all) at the Grand Jury proceedings. ( Compare Dkt. No. 71 at 100 [" I think Joseph Hobika represented me in the grand jury proceedings." ] and Dkt. No. 71 at 105 [" George Aney represented Dominick [Crocilla], Joseph Hobika represented myself." ] with Dkt. No. 71 at 122 [" Never, [Hobika] was never my lawyer once, George Aney was my attorney then for many years." ].)[20] Because of these inconsistencies, the Court cannot conclude that Cuda testified that Hobika represented him at the Grand Jury proceeding with any credibility.

As for the second holding, the Court finds that Hobika did not admit " that he accompanied Cuda to the grand jury." (Dkt. No. 102 at 33.) Instead, to be precise, Hobika testified as follows:

Q Did you go with [Cuda] the day that he testified in the grand jury?
A I was present there, I was asked to go by Dominick Crocilla for basically moral support. I knew his family, his brother, his dad, I think he passed away at that time, and I went there basically to get to see what happened on the inside. I had never seen anything like that before or participated in anything like that, so I kind of took it as a learning experience and that's what I was doing there.
Q So you were there on behalf of Dominick Crocilla, not Matthew --
A I was not there in any - as a lawyer I guess is the way you would put it. I was there watching something and basically learning, or trying to learn, I should say.

(Dkt. No. 70 at 111-12.) In the Court's view, this testimony demonstrates Hobika's attempt to (1) resist any conclusion that he " accompanied" or " went with" anyone to the Grand Jury proceedings, and (2) insist that his presence was unrelated to legal representation. Based on this testimony, the Court cannot conclude Hobika " accompanied Cuda to the grand jury." (Dkt. No. 102 at 33.)

For all of these reasons, the Court respectfully disagrees with the Report-Recommendation's findings that, if the Court was permitted to consider the Sparman hearing evidence, the evidence would mandate a finding that Hobika and Aney (1) simultaneously represented Petitioner and Crocilla and/or Cuda, and (2) operated under an actual conflict of interest.

The Court hastens to add, however, that it agrees with the Report-Recommendation's ultimate holding that, notwithstanding the Sparman hearing evidence, the evidence presented during the state court proceedings does not support a finding that Hobika and Aney simultaneously represented Petitioner and Crocilla and/or Cuda during the post-arrest/pre-indictment phase, for the reasons stated in the Report-Recommendation. (Dkt. No. 102 at 32, 35-36.)

Second, the Court finds the Report-Recommendation's finding regarding the outcome of the Huntley hearing in state court to be superfluous for the following two reasons. (Dkt. No. 102 at 28 n.10.) First, the Magistrate Judge's findings and comments on this subject are immaterial given that he is not, in fact, permitted to review the state-court Huntley hearing proceeding under a de novo standard of review. Second, and more importantly, the Court respectfully disagrees with the notion that

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Hobika's and Aney's credibility at a federal court hearing could change the outcome of the admissibility of Petitioner's statements to law enforcement at a hearing in 1995 (thirteen years before the federal court hearing).

B. Respondent's Objections

In accordance with Local Rule 72.1(c) of the Local Rules of Practice for this Court, the Court finds that all of Respondent's objections are specific in nature because Respondent identified the portions of the Report-Recommendation to which he objects with particularity, and Respondent cited legal authority in an effort to support the objections. ( See generally Dkt. No. 113.) As a result, the Court subjects those portions of the Report-Recommendation to which Respondent objects to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C).

After careful consideration of the parties' submissions and the Report-Recommendation, the Court rejects the first, fourth, and sixth arguments asserted by Respondent, as described above in Part I.E. of this Decision and Order. Specifically, the Court finds these arguments to be unpersuasive and/or reinventions of Respondent's previous arguments contained in Respondents's Sparman hearing summation (Dkt. No. 98), which the Magistrate had the opportunity to consider before issuing the Report-Recommendation. Moreover, the Report-Recommendation's findings, as they relate to Respondent's first, fourth, and sixth arguments, are well-reasoned and supported by the relevant law.

The Court would add only three points. First, as to Respondent's sixth argument (i.e., that the Report-Recommendation erred in finding that the County Court did not adjudicate Petitioner's ineffective assistance of counsel claim against Ray in his 440.10 motion on the merits), the Court finds this argument meritless. (Dkt. No. 113 at 63-66.)

In support of its argument, Respondent asks the Court to find that, when the County Court determined that Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney had already been decided by the Appellate Division on the merits, the County Court deduced (or, " necessarily" found) that Petitioner's ineffective-assistance-of-counsel claim against Ray also failed on the merits. (Dkt. No. 113 at 65.) Therefore, Respondent argues that the Court is required to review the claim under the AEDPA standard of review rather than de novo. ( Id.) A careful review of the County Court's Decision and Order, however, does not support such a conclusion.

Without specifying the particular ineffective-assistance-of-counsel claims to which it referred,[21] the County Court concluded that " [t]he issue of conflicting representation was raised by appellate counsel before the Appellate Division. The Appellate Division reviewed that argument, and specifically denied the same." (Dkt. No. 13, Exh. H at 3 [traditionally filed, not filed electronically] [citations omitted]; Dkt. No. 123, Attach. 1 at 189-94.) In rejecting the unspecified ineffective-assistance-of-counsel claim, the County Court held that " [t]he issue was raised on direct appeal, and denied. This Court will not review [the] same, nor does this Court have the authority to so." ( Id.)

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According to the Report-Recommendation, this holding by the County Court applied only to the ineffective-assistance-of-counsel claims against Hobika and Aney because those are the claims that were raised on appeal to the Appellate Division. (Dkt. No. 102 at 4-50.) The Court agrees with this reasoning because, in the County Court's Decision and Order, it stated that it reviewed the letter that Petitioner issued in support of his request for leave to appeal to the New York State Court of Appeals (" Court of Appeals" ) that included " the exact issues of alleged simultaneous representation as raised . . . in the present motion were highlighted." (Dkt. No. 13, Exh. H [traditionally filed, not filed electronically]; Dkt. No. 123, Attach. 1 at 189-94 [emphasis added].) Because the only ineffective-assistance-of-counsel claims based on " simultaneous representation" that have ever been raised in this case are against Hobika and Aney, it follows that the County Court's holding on this point applied only to Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney. In addition, a review of Petitioner's letter in support of his request for leave to appeal to the Court of Appeals supports this finding, because Petitioner's letter addresses ineffective-assistance-of-counsel claims only against Hobika and Aney. (Dkt. No. 13, Exh. E at 2-3 [traditionally filed, not electronically filed]; Dkt. No. 123 at 224-50.)

For all of these reasons, the Court rejects Respondent's sixth argument that the Report-Recommendation erred in finding that the County Court did not address Petitioner's ineffective-assistance-of-counsel claim against Ray on the merits.[22]

Second, as to Respondent's seventh argument (i.e., regarding the Magistrate's evidentiary rulings at the Sparman hearing), the Court finds this argument moot because, as discussed more completely in the Report-Recommendation, the Supreme Court's decision in Pinholster precludes the Court from considering any evidence adduced at the Sparman hearing. ( See generally Dkt. No. 102 at 15-23.)

Third, as to Respondent's ninth argument (i.e., relating to the Report-Recommendation's recommendation that it should issue a COA if the Court denies Petitioner's application for a writ of habeas corpus), the Court agrees with Respondent. Pursuant to 28 U.S.C. § 2253(c), a district court may issue a COA if a petitioner " has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c); see also Blackman v. Ercole, 661 F.3d 161, 163 (2d Cir. 2011) (" The federal habeas appeals statute, as amended by the [AEDPA], provides that a district court may issue a certificate of appealability only if the applicant has made a substantial showing of the denial of a constitutional right." ) (internal quotation marks, brackets and ellipse omitted).

To satisfy this showing where the district court rejected a petitioner's application for a writ of habeas corpus on the merits, a " petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); see also Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (" A petitioner satisfies this standard by demonstrating

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that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." ).

Here, the Court declines to issue a COA because it does not believe that reasonable jurists would find the Court's assessment of Petitioner's claims " debatable or wrong." McDaniel, 529 U.S. at 484. Specifically, even if the Court were to accept as true Petitioner's allegations that Hobika and Aney operated under an actual conflict of interest by simultaneously representing Petitioner and Crocrilla and/or Cuda during any time prior to, or after, Petitioner's arrest, the evidence contained in the state-court record is insufficient to suggest that Hobika and/or Aney's representation of Petitioner was adversely affected by the conflict of interest. In coming to this conclusion, the Court has reviewed the following state-court records: (1) Petitioner's brief on appeal to the Appellate Division following his conviction (Dkt. No. 13, Exh. A [filed traditionally, not filed electronically]; Dkt. No. 123 at 5-123); (2) the Appellate Division's Opinion dismissing Petitioner's appeal (Dkt. No. 13, Exh. D [filed traditionally, not filed electronically]; Dkt. No. 123 at 221-23); (3) Petitioner's request for leave to appeal the Appellate Division's dismissal of his appeal to the Court of Appeals (Dkt. No. 13, Exh. E [filed traditionally, not filed electronically]; Dkt. No. 123 at 224-50); (4) Petitioner's 440.10 motion, including the memorandum of law in support and the accompanying supporting exhibits (Dkt. No. 13, Exh. G [filed traditionally, not filed electronically]; Dkt. No. 123, Attach. 1 at 4-188); (5) the Oneida County Court's Decision and Order denying Petitioner's 440.10 motion dated November 26, 2001 (Dkt. No. 13, Exh. H [filed traditionally, not filed electronically]; Dkt. No. 123, Attach. 1 at 189-94); (6) Petitioner's request for leave to appeal the Oneida County Court's Decision and Order denying his 440.10 motion (Dkt. No. 13, Exh. I [filed traditionally, not filed electronically]; Dkt. No. 123, Attach. 1 at 195-200); (7) the Appellate Division's denial of Petitioner's leave to appeal the Oneida County Court's Decision and Order denying his 440.10 motion (Dkt. No. 13, Exh. J [filed traditionally, not filed electronically]; Dkt. No. 123, Attach. 1 at 201-02); (8) Crocilla's Grand Jury testimony (Dkt. No. 117 at 2-57); (9) Cuda's Grand Jury testimony (Dkt. No. 117 at 58-92); (10) Crocilla's trial testimony (Dkt. No. 121 at 67-111); (11) Pugliese's trial testimony (Dkt. No. 121, Attach. 2 at 131-71); (12) the transcripts of the Utica City Court proceedings on March 15 & 16, 1994 (Dkt. No. 118 at 1-23); (13) the transcript of the Oneida County Court proceedings on March 22, 1994 ( Id. at 24-30); (14) Petitioner's affidavit submitted in support of his motion to suppress his statements made to Utica Police Department dated August 17, 1994 (Dkt. No. 122 at 85-87); (15) Petitioner's trial testimony (Dkt. No. 121, Attach. 1 at 41-200; Dkt. No. 121, Attach. 2 at 1-109); (16) the Huntley hearing transcript (Dkt. No. 118 at 93-200; Dkt. No. 118, Attach. 1 at 1-200; Dkt. No. 118, Attach. 2 at 1-334); (17) the Huntley hearing exhibits (Dkt. No. 122 at 131-42 and Dkt. No. 117, Attach. 6); and (18) the trial court's Huntley hearing Decision (Dkt. No. 122 at 176-94).

After carefully reviewing the matter, the Court finds that none of the above-referenced state-court records contain evidence demonstrating that Hobika's and Aney's alleged conflicts adversely affected Petitioner's decision not to testify before the Grand Jury such that reasonable jurists

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would disagree.[23] Additionally, none of those records contain evidence demonstrating that Hobika's and Aney's alleged conflicts of interest adversely affected whether Petitioner would have been offered, would have considered, or would have accepted a pre-indictment plea offer from the prosecution such that reasonable jurists would disagree.[24] Finally, none of those records contain evidence demonstrating that Hobika's and Aney's alleged conflicts of interest adversely affected petitioner's defense as it relates to either Pugliese's decision to testify at trial or the content of Pugliese's testimony at trial such that reasonable jurists would disagree.[25]

Finally, the Court declines to issue a COA because it does not believe that " the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327. The Court finds the Report-Recommendation's interpretation of Pinholster [26] is adequately supported by Pinholster's language, as well as the case law that has developed since Pinholster was issued in April 2011.[27] For all of these reasons, the Court declines to issue a COA.

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ACCORDINGLY, it is

ORDERED that the Report-Recommendation (Dkt. No. 102) is ACCEPTED and ADOPTED in its entirety, except for the portion recommending that the Court issue a Certificate of Appealability; and it is further

ORDERED that Petitioner's application for a writ of habeas corpus (Dkt. No. 1) is DENIED.

The Clerk of the Court is directed to enter judgment in favor of Respondent and close this action.

REPORT AND RECOMMENDATION

Victor E. Bianchini, United States Magistrate Judge.

I. INTRODUCTION

Vincent Pepe (" Petitioner" ), by and through his counsel, commenced this action seeking habeas corpus relief under 28 U.S.C. § 2254. Petitioner is an inmate at the Sullivan Correctional Facility. In 1995, he was convicted after trial in a New York State court of four counts of Second Degree Murder, one count of Third Degree Criminal Possession of a Weapon, one count of Second Degree Criminal Possession of a Weapon, two counts of First Degree Robbery and Third Degree Arson and sentenced to a term of imprisonment. Petitioner contends his conviction was imposed in violation of his federal constitutional rights and should be vacated.

This matter was referred to the undersigned by the Honorable Norman A. Mordue, Chief United States District Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 19).

II. BACKGROUND

A. Facts

The background and procedural history of this matter are relatively complex. Numerous factual and legal issues are subject to sharp disagreement among the parties. The facts and proceedings will be discussed during the course of this Report and Recommendation as they relate to specific claims and issues in controversy.

The following brief summary of the factual background is derived from the state court records: On October 7, 1993, John Zajac and Charles Brewer were shot and killed at the North Utica Cleaners, a dry cleaning establishment owned by Petitioner's parents and located in Utica, New York. (TT at 487, 497-500, 958-973).[1] The victims' bodies were placed in the trunk of Zajac's car and driven to the parking lot of a nearby shopping mall. (TT at 509-517). Gasoline was poured into the vehicle and ignited. (TT at 189-195, 513-517). The Utica Police and Fire Departments responded to the fire and began an investigation. (TT at 189-195, 211-213, 222-223, 234, 242).

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The following day, Petitioner asked Dominic Crocilla, his boss and friend, to help him dispose of various blood-stained items. (TT at 1114). When Crocilla inquired as to what had happened, Petitioner said " You don't want to know right now." (TT at 1114). Petitioner and Crocilla traveled to Crocilla's house and burned bloody clothes and cloths in an open pit located in the rear of Crocilla's property. (TT at 1118-1123). Later, Petitioner told Crocilla that he and an associate, David Benner, had " a bad drug deal" at the North Utica Cleaners. (T at 1127). Petitioner said that Benner had beaten one of the victims and repeated that Crocilla " didn't want to know" who shot the victims. (T at 1128-29). Petitioner did, however, tell Crocilla that he had stepped on one victim's neck. (T at 1130).

During the course of their investigation, the Utica Police Department learned that the burned vehicle belonged to Carol Zajac, John Zajac's mother. Mrs. Zajac informed police that her son worked at a local bar with Brewer (the other victim). (TT at 160-166, 887-889). The police learned that Zajac and Brewer had been seen with Petitioner (who was 19 at the time) and Benner (who was 21). (TT at 891-894). The police interviewed Petitioner and Benner. Both denied any involvement in the murders. No arrests were made, but the investigation continued.

On or about March 2, 1994, Benner provided a statement to the police implicating Petitioner in the murders of Zajac and Brewer. (TT at 917-918). On March 11, 1994, Benner, wearing a wire and acting as an undercover agent of the police, had a conversation with Petitioner, during which Petitioner made incriminating statements about the murders. (TT at 545-55). Petitioner was taken into custody on March 15, 1994, given his Miranda rights, and interrogated. He admitted that Zajac and Brewer were present at the dry cleaners under the pretense of completing a marijuana purchase, admitted helping to burn the bodies, and acknowledged possessing a gun at the murder scene, but suggested he was not the shooter. (TT at 930-935, 1012, 1016, 1020). Petitioner was arrested shortly after making his statement.

On March 18, 1994, an Oneida County Grand Jury returned Indictment Number 94-101, charging Petitioner with two counts of Murder in the Second Degree, in violation of New York Penal Law (" NYPL" ) § 125.25(1); two counts of Murder in the Second Degree, in violation of NYPL § 125.25(2); two counts of Murder in the Second Degree, in violation of NYPL § 125.25(3) (felony murder); one count of Criminal Possession of a Weapon in the Third Degree, in violation of NYPL § 265.02(4); one count of Robbery in the First Degree, in violation of NYPL § 160.15(2); and one count of Arson in the First Degree,[2] in violation of NYPL § 150.20(1).

B. State Trial Court Proceedings

The Honorable Nathaniel Merrell, Oneida County Court Judge, presided over Petitioner's trial, which began on January 30, 1995. Petitioner was represented at trial by Kenneth P. Ray, Esq. On March 9, 1995, the jury found Petitioner guilty on all charges.[3] (TT at 1920-1922).

On April 25, 1995, Petitioner was sentenced to concurrent indeterminate sentences

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of 25 years to life for two of his murder convictions to run consecutively with concurrent sentences of 25 years to life for his other two murder convictions. (TT at 2117-2118). For his conviction of Criminal Possession of Weapon in the Second Degree, Petitioner received an indeterminate sentence of five to 15 years, and for his conviction of Criminal Possession of a Weapon in the Third Degree, Petitioner was sentenced to two and one third years to seven years imprisonment. (TT at 2118-2119). For each of his two convictions of Robbery in the First Degree, Petitioner received an indeterminate sentence of eight and one third years to 25 years. (TT at 2119). For his conviction for Arson in the Third Degree, Petitioner received a sentence of five to 15 years. (TT at 2120). Petitioner's other sentences were to run concurrently with the two murder sentences. (TT at 2120). Therefore, Petitioner's total aggregate sentence was fifty (50) years to life. (TT at 2121-2122).

C. State Appellate Proceedings

Petitioner, represented by John Cirando, Esq., appealed his conviction to the Appellate Division, Fourth Department, of the New York State Supreme Court. Petitioner asserted twelve (12) arguments in support of his direct appeal: (1) he was denied the timely disclosure of Brady material; (2) he was denied effective assistance of counsel due to conflicts of interest; (3) he was denied the opportunity to fully cross-examine prosecution witnesses; (4) the trial court erred in allowing improper and prejudicial rebuttal evidence; (5) the trial court improperly admitted his statements and oral admissions; (6) the accomplice testimony was uncorroborated; (7) there was prosecutorial misconduct; (8) the prosecution failed to disclose Rosario material; (9) the trial court made improper pre-trial rulings; (10) a recorded conversation between Petitioner and Benner was improperly admitted; (11) certain exhibits were improperly admitted into evidence; and (12) the sentences imposed were harsh and excessive.

In a decision issued on March 19, 1999, the Appellate Division unanimously affirmed Petitioner's conviction and sentence. People v. Pepe, 259 A.D.2d 949, 689 N.Y.S.2d 310 (4th Dep't 1999). Petitioner's application for leave to appeal to the Court of Appeals was denied on August 13, 1999. People v. Pepe, 93 N.Y.2d 1024, 719 N.E.2d 944, 697 N.Y.S.2d 583 (1999).

On October 16, 2000, Petitioner moved pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction. (Exhibit G).[4] Petitioner asserted four grounds for relief: (1) conflict of interests adversely impacted his defense; (2) the prosecution withheld Brady and Rosario material; (3) trial counsel failed to investigate and present exculpatory forensic evidence that would have revealed David Benner's inconsistent description of the crime scene; and (4) Petitioner's right to counsel was violated when a state agent conducted an illicit jailhouse interrogation. (Id.).

On November 26, 2001, the Honorable Joseph D. McGuire, Acting Oneida County Court Judge, denied Petitioner's motion. (Exhibit H). On May 17, 2004, the Appellate Division, Fourth Department denied Petitioner permission to appeal. (Exhibit J).

On March 28, 2003, Petitioner made a second motion pursuant to CPL § 440.10 on the grounds that the prosecution suppressed newly discovered evidence in the

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form of a police " lead sheet" [5] and the arrest report for accomplice David Benner. (Exhibit K).

On August 22, 2003, the Honorable James McCarthy, Oswego County Court Judge, denied the motion. (Exhibit L). On October 27, 2003, the Appellate Division, Fourth Department denied Petitioner permission to appeal. (Exhibit M).

Thereafter, Petitioner moved for a writ of error coram nobis. The Appellate Division, Fourth Department denied the writ on December 31, 2003. People v. Pepe, 2 A.D.3d 1491, 769 N.Y.S.2d 442 (4th Dep't 2003). Leave to appeal was denied by the Court of Appeals on March 18, 2004. People v. Pepe, 2 N.Y.3d 744, 810 N.E.2d 922, 778 N.Y.S.2d 469 (2004).

D. Federal Habeas Corpus Proceedings

Petitioner, represented by Barry Fallick, Esq., commenced this action on July 19, 2004, by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1). The Petition asserts three grounds for relief: (1) Petitioner was denied the effective assistance of counsel due to a conflict of interest involving the simultaneous and subsequent representation of prosecution witnesses by Attorneys Joseph Hobika, Jr. and George Farber Aney; (2) the prosecution violated their Brady disclosure obligations by failing to turn over exculpatory and impeachment evidence; and (3) Petitioner was denied the effective assistance of counsel because his trial counsel failed to procure expert forensic testimony.

Petitioner's counsel filed a memorandum of law in support of the Petition. (Docket No. 5). On January 21, 2005, Respondent, by and through the Attorney General of the State of New York, filed an affidavit and memorandum of law in opposition to the Petition. (Docket Nos. 14 & 15). Petitioner's counsel filed a reply memorandum of law on March 10, 2005. (Docket No. 16).

On June 13, 2008, this Court issued a Memorandum-Decision and Order finding that an evidentiary hearing was necessary with respect to Petitioner's first ineffective assistance claim pursuant to Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir.1998). (Docket No. 32). This Court presided over a four (4) day Sparman hearing in Syracuse, New York, beginning on September 15, 2008, and ending on September 18, 2008. Counsel for the parties thereafter submitted written closing statements (Docket Nos. 81, 86, 91) and this Court reserved decision. In 2011, at the direction of this Court, the parties submitted memoranda of law concerning the impact of the Supreme Court's decision in Cullen v. Pinholster, 131 S.Ct. 1388, 179 L.Ed.2d. 557 (2011). (Docket Nos. 92, 96, 98, 100).

For the reasons that follow, the Court recommends that the Petition be denied.

III. DISCUSSION

A. Federal Habeas Corpus Standard

Federal habeas corpus review of a state court conviction is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). Under AEDPA, federal courts must give substantial deference to a state court determination that has adjudicated a federal constitutional claim " on the merits." 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir. 2001). The Second Circuit has stated that

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an " adjudication on the merits" is a " substantive, rather than a procedural, resolution of a federal claim." Sellan, 261 F.3d at 313 (quotation omitted). The Second Circuit has also held that even a one-word denial of a petitioner's claim is sufficient to constitute an " adjudication on the merits" for purposes of AEDPA. Id. at 312-313.

Specifically, AEDPA requires that where a state court has adjudicated the merits of a Petitioner's federal claim, habeas corpus relief may not be granted unless the state court's adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

While both AEDPA and its predecessor statute recognize that a presumption of correctness shall apply to state court findings of fact, Whitaker v. Meachum, 123 F.3d 714, 715 n. 1 (2d Cir. 1997), AEDPA also requires a Petitioner to rebut that presumption by " clear and convincing evidence." 28 U.S.C. § 2254(e)(1); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002). A presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir. 2001); Whitaker, 123 F.3d at 715 n.1.

In Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court defined the phrases " contrary to" and " unreasonable application of" clearly established federal law. A state court decision is " contrary to clearly established federal law . . . if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts." Id.

A state court decision involves " an unreasonable application of" Supreme Court case law if it " identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id.

Under this standard, " a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be " some increment of incorrectness beyond error," although " the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

B. Ground One - Ineffective Assistance of Counsel (Conflict of Interest)

In his first claim for habeas relief, Petitioner contends he was denied the effective assistance of counsel in violation of his rights under the Sixth Amendment because of conflicts of interest involving Attorneys Joseph Hobika Jr. and George Farber Aney. This claim actually contains two (2) distinct arguments.

First, Petitioner asserts that he was represented by Attorneys Hobika and Aney from the initial police investigation in October 1993 until his March 22,1994 arraignment on the grand jury indictment. Petitioner

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argues that Aney and Hobika were operating under a conflict of interest during this time period, as they were simultaneously representing Dominic Crocilla and Matthew Cuda, other potential targets of the police investigation and government witnesses before the grand jury.

Petitioner claims these conflicts of interest tainted the grand jury and trial proceedings, causing the allegedly erroneous admission of prejudicial evidence. Petitioner further asserts that Aney and Hobika failed to explore the possibility of a pre-indictment plea agreement, never advised him of his right to testify before the grand jury, and may have improperly revealed confidential information obtained during the course of their representation.

Second, Petitioner argues that Attorney Kenneth Ray, his trial counsel, was ineffective for failing to adequately address the Hobika/Aney conflict of interest issue during the pre-trial and trial proceedings. Although not expressly designated as a separate claim in the Petition, it is clear that Petitioner seeks relief on this additional and alternative ground. This Court will address each of Petitioner's ineffective assistance arguments in turn.

1. Ineffective Assistance/Conflict of Interest (Hobika & Aney)

It is well-settled that " [t]he right to counsel under the Sixth Amendment entails 'a correlative right to representation that is free from conflicts of interest.'" United States v. Levy, 25 F.3d 146, 152 (2d Cir.1994) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)); accord Armienti v. United States, 313 F.3d 807, 811 (2d Cir.2002).

Generally, the guidepost for determining whether a criminal defendant's counsel was unconstitutionally ineffective is the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which constitutes clearly established law on this point. The Strickland test requires the petitioner to show (1) that counsel's performance was deficient and (2) that he or she was prejudiced by the deficient performance.

However, with regard to ineffective assistance claims based upon conflicts of interest, a more lenient standard will apply. Specifically, " [a] defendant will have suffered ineffective assistance of counsel in violation of his Sixth Amendment rights if his attorney has a 'per se' conflict, a potential conflict of interest that results in prejudice to the defendant, or an actual conflict of interest that adversely affects the attorney's performance." Armienti, 313 F.3d at 811 (citing, inter alia, Levy, 25 F.3d at 152).

a. State Court Determination

On direct appeal, Petitioner, through his appellate counsel, argued that he was denied the effective assistance of counsel because Attorneys Aney and Hobika were operating under an actual conflict of interest during the pre-indictment and grand jury phases of the case. The Appellate Division, Fourth Department denied Petitioner's claim, finding that:

Even assuming, arguendo, that the same attorneys represented defendant and some prosecution witnesses during the Grand Jury investigation, we conclude that, because defendant was represented by different counsel at his arraignment and through the completion of the trial, he failed to establish that the continued representation of those prosecution witnesses by his former attorneys bore a substantial relation to the conduct of his defense.

People v. Pepe, 259 A.D.2d 949, 689 N.Y.S.2d 310, 313 (4th Dep't 1999).

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As noted above, the Court of Appeals denied Petitioner's request for leave to appeal from the Appellate Division's decision. As such, the Appellate Division's decision is the last reasoned state court ruling.

Thereafter, Petitioner, through counsel, filed a motion pursuant to the New York Criminal Procedure Law (commonly referred to as a " 440 motion" ), arguing inter alia that Hobika and Aney were operating under a conflict of interest, which denied him the effective assistance of counsel. Petitioner submitted several affidavits in support of his motion and requested an evidentiary hearing. (Exhibit G).

In a Decision & Order issued on November 26, 2001, Acting County Court Judge Joseph D. McGuire denied Petitioner's 440 motion. (Exhibit H). Judge McGuire noted that the " issue of conflicting representation was raised by appellate counsel before the Appellate Division." (Id., at p. 3). Accordingly, Judge McGuire concluded that he was barred from reconsidering the question pursuant to CPL § 440.20 (2), which prevents the rehearing of issues previously raised and decided on the merits via direct appeal. (Id., at p. 4). Petitioner sought leave to appeal from Judge McGuire's Order, but his request was denied on July 2, 2002. (Exhibits I & J).

b. Factual Background/Contentions

Petitioner contends that Hobika and Aney acted as his attorneys from the outset of the police investigation. He further alleges that he shared privileged information concerning the case with those attorneys during the course of this representation. According to Petitioner, during some or all of this time, Hobika and Aney were also representing Dominic Crocilla and Matthew Cuda in connection with the same murder investigation. (Because Crocilla and Cuda helped Petitioner dispose of evidence related to the murders, they were potential suspects). Petitioner also suggests that one or both of the attorneys agreed to accept legal fees from Crocilla on Petitioner's behalf.

The following facts are undisputed: On March 15, 1994, Petitioner was arraigned in the Utica City Court on two counts of second degree murder. At that hearing, Petitioner advised the court that he was being represented by Attorneys Aney and Hobika. (PE # 8, at 2, 4).[6] He explained that Aney was out of town and indicated that he would attempt to contact Hobika. (PE #8, at 2, 4). At that point, a court clerk advised that she believed Hobika had called the court, although she had not spoken with him. (PE #8, at 5).

Attorney Aney appeared on Petitioner's behalf at a court hearing in Utica City Court the next day, March 16, 1994 (PE # 9). Aney indicated that he would be representing Petitioner and intended to make a bail application shortly. (PE #9, at p. 11). Aney visited Petitioner in jail later than evening. (Court Exhibit #1). Petitioner was indicted by the grand jury on March 18, 1994.

In support of his 440 motion, Petitioner submitted affidavits from his mother (Santa Pepe), father (Joseph Pepe), and uncle (Joseph Papandrea), stating that they were present at a meeting with Aney and Crocilla, during which Crocilla agreed to pay Petitioner's legal fees. (Exhibit G & PE # 6-7). Petitioner also provided the 440 court with an affidavit from Charles Wason, a former associate of Kenneth Ray, Petitioner's trial counsel. (Exhibit G & PE#1). Wason stated that he had two conversations with Attorney Hobika. According

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to Wason, during the first conversation, Hobika acknowledged representing Petitioner during the investigative stages of the case and explained that he told Petitioner to refer police questions to Aney or Hobika. Wason stated that he contacted Hobika a second time concerning his possible testimony at a suppression hearing, whereupon Hobika denied the representation and warned that, if called as a witness, his testimony " would not be to [Petitioner's] benefit." (Exhibit G & PE#1).

Petitioner contends that Aney/Hobika's dual representation of Crocilla and Cuda during the police investigation and grand jury proceedings gave rise to an actual conflict of interest. Specifically, Petitioner argues that Aney and Hobika were forced to choose between Crocilla and Cuda on the one hand (who received immunity and testified before the grand jury, thereby benefitting from early cooperation against Petitioner) and Petitioner (whose cooperation with the police at the outset would have left Crocilla and Cuda exposed to prosecution for their conduct in covering up the murders). Petitioner asserts that the dual representation conflict adversely affected Aney and Hobika's performance. In particular, Petitioner contends that Aney and Hobika failed to discuss the benefits of cooperation and never advised Petitioner of his right to testify before the grand jury. In addition, Petitioner suggests the attorneys may have revealed his confidences to them and that their multiple representation tainted the suppression hearing, which caused the erroneous admission of prejudice evidence. In addition, Petitioner suggests that Aney revealed confidences to James Pugliese, another Aney client who testified as a rebuttal witness for the prosecution.

Respondent argues that Petitioner's claims are without merit. To that end, Respondent notes that Attorney Hobika never appeared in any legal proceeding or filed a notice of appearance on Petitioner's behalf. Respondent argues that Petitioner's suggestion that Aney and/or Hobika shared unspecified " confidences" with prosecution witnesses is wholly speculative. Respondent also contends that the Appellate Division's rejection of Petitioner's claim on the grounds that any pre-indictment representation by Aney and/or Hobika did not bear " a substantial relation" to the conduct of Petitioner's defense was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.

c. Consideration of Sparman Evidence

After reviewing the parties' initial submissions and receiving further briefing, this Court determined that an evidentiary hearing was warranted pursuant to Sparman v. Edwards, 154 F.3d 51(2d Cir. 1998). (Docket No. 32). In Sparman, the United States Court of Appeals for the Second Circuit held 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." Id. at 52.

The Sparman hearing was held in Syracuse, New York, beginning on September 15, 2008, and ending on September 18, 2008.

While this matter was under submission, the Supreme Court rendered its decision in Cullen v. Pinholster, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). In that case, the habeas petitioner was convicted of murder in state court and sentenced to death. He unsuccessfully appealed his conviction via state court proceedings. Id. at 1394. After conducting an evidentiary hearing, a federal district

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court concluded that the petitioner's trial counsel had been unconstitutionally ineffective during the penalty phase of the trial. The Ninth Circuit Court of Appeals considered the new evidence adduced at the district court's evidentiary hearing and concluded that the state court's decision affirming the conviction " was contrary to, or involved an unreasonable application of, clearly established Federal law," pursuant to 28 U.S.C. § 2254 (d)(1). Id.

The Supreme Court reversed. The Court gave careful consideration to the language of 28 U.S.C. § 2254 (d), which applies to claims that have been " adjudicated on the merits in State court proceedings," and which limits the granting of habeas relief to cases in which the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Id. at 1398 (quoting 28 U.S.C. § 2254 (d)).

Interpreting the language of this subsection, the Court held that " review under § 2254 (d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. at 1398. The Court explained that " review under § 2254 (d)(1) focuses on what a state court knew and did" and " measure[s]" the State-court decision against Supreme Court " precedents as of 'the time the state court renders its decision.'" Id. at 1399 (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)). The Court found that it " would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court." Id.

Thus, the question presented in the instant case is whether and to what extent this Court may consider the evidence adduced at the Sparman hearing. Petitioner contends that this Court may consider evidence presented for the first time in the Sparman hearing, notwithstanding the Pinholster decision.

First, Petitioner contends that Pinholster is distinguishable on its facts because, unlike the petitioner in that case, Petitioner here made diligent efforts to present additional evidence to the State courts in support of his claim. There is arguable support for this assertion in Justice Sotomayor's dissenting opinion. See Pinholster, 131 S.Ct. at 1417 n. 5 (" I assume that the majority does not intend to suggest that review is limited to the state-court record when a petitioner's inability to develop the facts supporting his claim was the fault of the state court itself." )(Sotomayor, J., dissenting).

However, Justice Sotomayor's reference to the inability to develop facts during the state court proceedings was made in the context of additional facts or evidence giving rise to a " new claim." Id. Here, the question is whether this Court may consider evidence not presented to the State courts in support of a claim raised in the State courts and adjudicated by the State courts on the merits. The majority holding in Pinholster explicitly forecloses such consideration and expressly limits this Court's review to " the record that was before the state court that adjudicated the claim on the merits." Id. at 1398.

Second, Petitioner argues that the Supreme Court's decision in Pinholster does not forbid the introduction of additional evidence in hearings held pursuant to the Second Circuit's Sparman decision. As

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noted above, in Sparman v. Edwards, the Second Circuit held 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, 154 F.3d at 52. Hearings held pursuant to the Second Circuit's decision have customarily been referred to as " Sparman hearings."

This Court finds it difficult to discern a rationale under which Sparman survives post-Pinholster with regard to ineffective assistance of counsel claims adjudicated on the merits in the State courts. Indeed, in an unpublished summary order issued shortly after Pinholster was decided, a panel of the Second Circuit suggested that Sparman hearings are no longer permitted. Ridgeway v. Zon, 424 F.App'x 58, 2011 WL 2357311 (2d Cir. 2011). The panel noted that " additional information proffered before the District Court" appeared to " lend credence" to the petitioner's ineffective assistance claim. 424 F.App'x 58 [WL] at *2. The court further indicated that it might have remanded the case to give petitioner's counsel " an opportunity to explain behavior that does not appear to have been the product of 'appropriate strategic considerations,'" but declined to do so on the grounds that the Supreme Court had " now apparently foreclosed that avenue . . . here." 424 F.App'x 58 [WL] at *2 (citing Pinholster). At least one other circuit court has reached the same conclusion. See Pape v. Thaler, 645 F.3d 281, 288 (5th Cir. 2011)(" Under Pinholster, however, the district court erred by conducting the evidentiary hearing and by relying on evidence from that hearing to conclude that the state habeas court had unreasonably applied Strickland." ).

Lastly, and most importantly, Petitioner suggests that Pinholster does not apply because a particular aspect of the Aney/Hobika ineffective assistance claim was not adjudicated on the merits by the State courts. While Petitioner concedes that the Appellate Division reached adversely the merits of his claim that the Aney/Hobika conflict of interest prejudiced his defense at trial, he argues that the Appellate Division did not reach the merits of his argument that the conflict of interest prejudiced him during the pre-indictment phase. This Court finds Petitioner's argument unavailing.

Petitioner clearly raised the alleged pre-indictment conflict on direct appeal. (Exhibit A, at p. 17-21). The Appellate Division did not directly discuss this particular conflict. Indeed, the court did not make an explicit finding regarding whether there was, in fact, dual representation by Aney and/or Hobika at any time. Rather, the court simply assumed " arguendo, that the same attorneys represented [Petitioner] and some prosecution witnesses during the Grand Jury investigation" and then concluded that because Petitioner was " represented by different counsel at his arraignment and through the completion of the trial," he could not " establish that the continued representation of those prosecution witnesses by his former attorneys bore a substantial relation to the conduct of his defense." People v. Pepe, 259 A.D.2d 949, 689 N.Y.S.2d 310, 313 (4th Dep't 1999).

Thus, the Appellate Division did not expressly answer (or even address) the question of whether Petitioner was prejudiced by attorney conflicts of interest during the pre-indictment phase. As to that aspect of the ineffective assistance claim, it was not the continued representation of prosecution witnesses by Petitioner's former attorneys at issue. With respect to the pre-indictment

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period, Petitioner's claim was based upon the alleged simultaneous representation of prosecution targets by his (then) current attorneys. However, for the reasons outlined below, under well-settled Second Circuit law, this Court must conclude that the Appellate Division adjudicated this aspect of Petitioner's ineffective assistance claim on the merits, even though the state court did not specifically mention the argument, let alone provide a rationale for rejecting it.

The Appellate Division ended its decision by stating that it had reviewed Petitioner's " remaining contentions and conclude[d] that they lack[ed] merit." Id. It is well-settled in the Second Circuit that " to qualify as an adjudication 'on the merits,' a state court decision need not mention a particular argument or explain the reasons for rejecting it." Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir. 2003)(quoting Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002); and citing Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir.2001); Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)).

Where, as in the present case, " 'there is no basis either in the history of the case or the opinion of the Appellate Division for believing' that the claim at issue 'was denied on procedural or any other nonsubstantive grounds,' a terse statement that 'remaining contentions are without merit' suffices to trigger AEDPA's heightened standard of review." Dallio, 343 F.3d at 560 (quoting Brown, 283 F.3d at 498).

Accordingly, in light of the language used by the Appellate Division, this Court makes the following findings: (1) all aspects of Petitioner's Aney/Hobika ineffective assistance claim were adjudicated on the merits by the State courts, (2) all aspects of the claim are therefore subject to review under AEDPA's heightened standard, and (3) pursuant to Pinholster, this Court's review of the Aney/Hobika ineffective assistance claim is limited to the record presented to the Appellate Division.

Before proceeding to a review of the Appellate Division's decision, a further clarification is necessary. Petitioner also raised the Aney/Hobika conflict claim in his first 440 motion and articulated the claim in a more extensive and vigorous fashion. (Exhibit G).

The County Court denied that aspect of the 440 motion, citing CPL § 440.10 (2)(a), which provides that " the court must deny a motion to vacate a judgment when: ... [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue...." (Exhibit H).

The County Court noted that Petitioner had raised the Aney/Hobika conflict claim on direct appeal and in a thoroughgoing fashion via his motion for leave to appeal to the Court of Appeals, which motion was denied. Id. Thus, the County Court unambiguously rested its denial of this claim on the procedural state law ground that Petitioner had previously raised and unsuccessfully litigated the claim on direct appeal.

Federal courts are not permitted to " review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citations omitted). " This rule applies whether the state law ground is substantive or procedural." Id. (citations omitted).

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The courts in this Circuit have generally concluded that a denial pursuant to C.P.L. § 440.10(2)(a) is an " adequate and independent" state procedural ground barring federal habeas review. See, e.g., Encarnacion v. Walker, No. 96CV329FJSGLS, 1998 WL 34002608, at *4 (N.D.N.Y. Aug. 21, 1998) (" The state trial court's ruling rested on an adequate and independent state procedural rule, N.Y.Crim. Proc. Law § 440.10(2)(a) & (b), which provides that a court must deny a motion to vacate a judgment if the issue raised was previously determined on appeal from the judgment, or the judgment is appealable or pending on appeal and sufficient facts appear on the record to permit adequate review." ); D'Alessandro v. Fischer, No. 01 Civ. 2551 LTS/DF, 2005 WL 3159674, at *19 (S.D.N.Y. Nov. 28, 2005) ( " [T]he trial court's express reliance on CPL § 440.10(2)(a) indicates that the court rejected Petitioner's ineffective assistance claim on an independent and adequate state procedural ground, precluding federal habeas review." ); McClarin v. Smith, No. 05-CV-2478, 2007 WL 2323592, at *17 (E.D.N.Y. Aug. 10, 2007)(" In addition, the court found the due process claim procedurally barred by New York Criminal Procedure Law § 440.10(2)(a) because it had been adjudicated on the merits during petitioner's direct appeal. As such, petitioner's ineffective assistance of counsel claim is procedurally barred because the state court rejected it on an adequate and independent state procedural ground." ); but see Douglas v. Hollins, No. 00 Civ. 7928, 2004 WL 187130, at * 6 n. 5 (S.D.N.Y. Jan. 29, 2004) (finding that state court ruling under CPL § 440.10(2)(a) " does not constitute a finding of procedural default that precludes federal habeas review of the merits" ); Guzman v. Couture, No. 99-CIV-11316, 2003 WL 165746, at *11 (S.D.N.Y. Jan. 22, 2003) (" A dismissal under § 440.10(2)(a) is not based on any procedural default. To the contrary, it is premised on a prior decision." ).[7]

In accord with the majority view in this Circuit, this Court finds that the County Court's citation of CPL § 440.10 (2)(a) in support of its denial of the Aney/Hobika conflict claim rested the court's decision upon an adequate and independent state law ground, thereby precluding habeas review of that aspect of the County Court's decision. Accordingly, habeas review concerning the Aney/Hobika conflict claim is limited to the Appellate Division's decision and to the record before that court.

e. AEDPA Review of Aney/Hobika Claim

As noted above, Petitioner was arrested on March 15, 1994, and charged with murder. It is undisputed that Attorney Aney appeared in court on March 16, 1994, and indicated that he would be acting as Petitioner's attorney. It is further undisputed that Aney visited Petitioner at the jail during the evening hours of that same day. The grand jury indicted Petitioner on March 18, 1994. On that same date, Petitioner retained Attorney Ken Ray as his trial attorney and Ray appeared as Petitioner's counsel on March 22, 1994, when Petitioner was arraigned on the indictment. Attorney Hobika never entered a formal appearance as Petitioner's counsel

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in any court with regard to the murders. Petitioner entered into a written retainer agreement with Attorney Ray, but there is no evidence of any retainer agreements between Hobika/Aney and Petitioner. There is likewise no evidence that Hobika or Aney ever received any payment for legal services rendered to Petitioner in connection with the case.

As discussed above, Petitioner contends that (a) Aney and Hobika were his attorneys throughout the pre-arrest period ( i.e. following the murders and during the police investigation) and following his arrest, until Attorney Ray was retained on March 18th; (b) Aney and Hobika were simultaneously representing other prosecution targets ( i.e. Crocilla and Cuda); and (c) their conflicting interests prejudiced Petitioner and deprived him of right to effective assistance of counsel, as guaranteed by the U.S. Constitution.

i. Pre-Arrest Period (October 7, 1993 - March 14, 1994)

The question of whether Attorneys Aney and/or Hobika represented Petitioner during the pre-arrest period was presented to and decided by the State courts. On January 27, 1995, following a multi-day, pre-trial Huntley hearing,[8] the trial court issued a Memorandum and Decision finding that Petitioner was not represented by Attorneys Aney or Hobika (or, indeed, any attorney) with regard to the murder investigation prior to the date of his arrest (March 15, 1994). (PE #18). The Appellate Division affirmed the trial court's decision. People v. Pepe, 259 A.D.2d 949, 689 N.Y.S.2d 310, 312 (4th Dep't 1999)(" We perceive no basis in the record to disturb the court's findings that the statements were made voluntarily, that defendant voluntarily waived his right to counsel when he was in custody and did not ask for counsel when he was interviewed, and that defendant was not represented by counsel when the statements were made." ).

The background concerning the Huntley decision may be summarized as follows: Petitioner challenged the admissibility of three (3) statements made during the pre-arrest period, arguing that he was represented by Attorneys Aney and Hobika when those statements were made and, thus, the statements were taken in violation of his right to counsel. The Huntley hearing spanned several days, with the trial court receiving testimony from numerous witnesses, including Petitioner, David Benner (Petitioner's accomplice), and members of the Utica Police Department.

In particular, Petitioner sought to suppress a statement he made to the police on October 12, 1993, on the grounds that the police had taken the statement even though Petitioner repeatedly referred them to Aney and Hobika. The trial court concluded that Petitioner's testimony was not consistent with his contemporaneous conduct and that he had not established the existence of an attorney-client relationship with either Aney or Hobika during October of 1993. (PE #18, at p. 4-5).

Specifically, Petitioner testified that he had been questioned by the police several times between the murders and October 12, 1993, but had refused to make a statement and repeatedly referred the police to Aney and Hobika. Petitioner claimed he told the police that he would not make a statement without Aney or Hobika present. (PE # 18, at p. 4-5). Petitioner then visited the police station on two occasions

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shortly thereafter, ultimately providing a statement on October 12th without an attorney present. (PE # 18, at p. 5). Although Petitioner claimed that he attempted unsuccessfully to contact Hobika to request his presence during the October 12th police interview, he never sought to postpone the meeting until a time when Hobika could be present and provided the statement even though neither Hobika nor Aney was present. (PE # 18, at p. 5). The trial court noted that requesting a postponement " would have been the logical course of action" if Petitioner had actually been represented and wanted Hobika present. (PE # 18, at p. 5). The trial court also referenced the lack of documentary or other evidence supporting Petitioner's claim of a verbal retainer agreement with Attorney Hobika. (PE # 18, at p. 5).

On March 11, 1994, the Utica Police used co-defendant David Benner as their agent to tape-record a conversation with Petitioner. During the recorded conversation, Petitioner made incriminating statements.[9] The trial court found that although Petitioner made reference to calling an attorney during his conversation with Benner, his " mere assertion that he called an attorney [did] not unequivocally prove that he requested counsel or that he retained counsel." (PE #18, at p. 13). In addition, the trial court credited testimony from Benner to the effect that he had never seen Petitioner contact an attorney regarding the murders and that Petitioner never told him that he had spoken with Aney, Hobika, or any other attorney regarding his involvement in the murders. (PE #18, at p. 13).

Petitioner made a further statement to the Utica Police on March 15, 1994 (the day of his arrest). Before making the statement, Petitioner signed a Miranda waiver. (PE #18, p. 16). Petitioner admitted that the incident with Zajac and Brewer was a drug deal/robbery gone awry. (TT at 1015-16). He acknowledged possessing a gun at the murder scene. (TT at 1016-17, 1020). Petitioner admitting being present at the murder scene and hearing gunshots, but was vague about whether he pulled the trigger. (TT at 1020). The trial court declined to suppress this statement, finding that Petitioner knowingly and voluntarily waived his Miranda rights. The court also found no evidence that Petitioner ever requested the assistance of counsel during the interview, which lasted an hour and a half. (PE #18, at p. 17). As noted above, the trial court's decision was affirmed by the Appellate Division. Pepe, 689 at 312.

The trial court's factual findings are entitled to a presumption of correctness, which may only be rebutted under 28 U.S.C. § 2254 (e)(1) by clear and convincing evidence. Specifically,§ 2254 (e)(1) provides that " a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

Petitioner contends that the " clear and convincing evidence" standard does not

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apply here because the state court's determination concerning pre-arrest representation was made in a specific context, namely, deciding whether Petitioner's statements should be suppressed as taken in violation of his right to counsel (as opposed to whether Petitioner's attorneys were operating under an actual conflict of interest). This Court views that argument as making a distinction without a difference. The state court held an evidentiary hearing, weighed the evidence (including testimony from numerous witnesses), and concluded that Petitioner was not represented by counsel during the pre-arrest phase. That is the same factual issue relevant to this Court's review of the Aney/Hobika ineffective assistance claim - i.e. was Petitioner represented by Aney and/or Hobika during the pre-arrest period.

This Court is not at liberty to revisit or reconsider de novo the Huntley hearing evidence to reach its own conclusion about whether the evidence supported Petitioner's claim that he was represented by Aney and Hobika during the pre-arrest period. The trial court's decision makes it clear that the evidence presented at the Huntley hearing, which lasted several days, was carefully considered and weighed. Although reasonable jurists might reach different conclusions regarding the interpretation of that evidence,[10] Petitioner has not overcome the presumption of correctness afforded to the trial court's findings. See Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006)(" Reasonable minds reviewing the record might disagree about the prosecutor's credibility, but on habeas review that does not suffice to supersede the trial court's credibility determination" ). In other words, Petitioner has not sufficiently demonstrated that the trial court's decision was " unreasonable" or based upon a factual premise contradicted by clear and convincing evidence. See Miller--El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 1040-41, 154 L.Ed.2d 931 (2003).

Petitioner attempts to overcome the AEDPA deference problem by arguing that Respondent admitted that Aney and Hobika represented Petitioner during the pre-arrest period in a brief submitted with respect to the direct appeal. This argument is unavailing.

The prosecution's brief in opposition to Petitioner's direct appeal contained the following statement: " [E]arlier in the proceedings, the defendant had been represented initially by Joseph Hobika, Jr. and then briefly by George Farber Aney, III. Later, both attorney's [ sic ] represented witnesses who testified at trial for the People." (Exhibit B, at p. 22). The brief does not contain a citation in support of these factual statements or indicate the

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basis for the prosecutor's knowledge concerning these matters. The reference to Attorney Aney's representation is unremarkable - all are agreed that Aney at the very least briefly represent Petitioner " earlier in the proceedings" ( i.e. at a court appearance held the day after his arrest). The fact that the prosecutor referenced this fact does not necessarily constitute an admission that Aney represented Petitioner during the pre-arrest period. The prosecutor's statement that Aney represented Petitioner " earlier in the proceedings" from the reference point of the trial could readily be interpreted to refer to the single court appearance Aney made on Petitioner's behalf during the post-arrest, pre-indictment period.

The question is whether the prosecutor's statement in the brief conceded that Attorney Hobika represented Petitioner " earlier in the proceedings," a point very much in dispute. (Respondent argues that Hobika never represented Petitioner). On this point, however, this Court concludes that it cannot find a reason under the current case law constraints to disregard the factual findings of the trial court based upon the prosecution's unguarded statement contained in an appellate brief.

The trial court reached its Huntley hearing decision based upon actual testimony from witnesses with direct involvement in the pre-arrest proceedings. Even if the prosecutor's statement in the brief is liberally construed as having some evidentiary weight, it cannot constitute clear and convincing evidence sufficient to overcome the presumption of correctness afforded under AEDPA to the trial court's factual finding that Aney and Hobika did not represent Petitioner during the pre-arrest period.

Moreover, the balance of the prosecutor's argument makes the point that Hobika's representation and alleged conflict of interest did not warrant reversal of the conviction. As such, it appears that the prosecutor reasoned that he could concede the fact of Hobika's representation without risking reversal. If true, this provides an explanation (but not an excuse) for the prosecutor's apparent failure to verify his facts and undermines the suggestion that the statement constitutes a deliberate admission of fact by the prosecution.

Indeed, but for this single reference, the prosecution consistently took the position that Hobika never represented Petitioner. For example, the District Attorney's letter in opposition to Petitioner's application for leave to appeal to the Court of Appeals references the lack of proof that Hobika ever represented Petitioner. (Respondent's Exhibit D)(" While Appellant makes the self-serving claim that Hobika represented him during [the] police investigation of the matter, no proof of such representation was ever set forth." ).[11] Likewise, the District Attorney's opposition to the 440 motion contends that " save for" Petitioner's allegations, " there is no proof whatever that Joseph Hobika ever represented [petitioner] at all on the instant matter." (Respondent's Exhibit E). While the Court disagrees with the District Attorney's position on this issue, his otherwise consistent position tends to nullify the concession expressed in the appellate brief.

Accordingly, this Court finds unavailing Petitioner's claim that Respondent conceded

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or admitted the fact of Attorney Hobika's representation. Moreover, even if the stray reference in the appellate brief to Hobika's alleged representation of Petitioner was considered an admission of some evidentiary value, it would not constitute clear and convincing evidence sufficient to overcome the trial court's Huntley findings.

In sum, Petitioner has not established that the State court's factual finding that he was not represented by Attorneys Aney or Hobika during the pre-arrest period was based upon a factual premise contradicted by clear and convincing evidence. As such, because Petitioner cannot overcome this factual determination, his ineffective assistance of counsel claim with regard to Attorneys Aney and Hobika must fail as it relates to the pre-arrest period. This aspect of Petitioner's ineffective assistance claim is based upon an alleged conflict of interest, which requires, as a threshold matter, a showing that Attorneys Hobika and/or Aney represented Petitioner during the pre-arrest period while simultaneously representing other prosecution targets. Given the high degree of deference afforded to state court factual findings under AEDPA, this Court finds that Petitioner has not made such a showing.

ii. Post-Arrest, Pre-Indictment Period (March 15 - March 18, 1994)

As discussed above, the following facts were clearly established in the state court records and are not disputed by the parties:

Following his arrest on March 15, 1994, Petitioner was arraigned in Utica City Court, whereupon he advised the court that he was represented by Attorney George Aney. (PE #8, at p. 8a). Petitioner explained that he had called Aney's office and had been told that Aney was in Florida. (Id.). Petitioner also indicated that Attorney Hobika was his lawyer and inquired as to whether Hobika could appear on his behalf until Aney returned from Florida. (Id. at 10a). A court clerk stated that she believed Hobika might have called the court. (Id. at 11a).

Attorney Aney appeared on Petitioner's behalf at a court hearing in Utica City Court on March 16, 1994, whereupon Aney indicated that he would be representing Petitioner and intended to make a bail application shortly. (PE #9, at p. 19a). Aney visited Petitioner in jail that evening. (Court Exhibit #1). Petitioner was indicted by the grand jury on March 18, 1994. Attorney Ken Ray was retained by Petitioner's family pursuant to a written retainer agreement dated that same day. (Respondent's Exhibit A). Attorney Ray appeared on Petitioner's behalf at the arraignment held on March 22, 1994. (PE #3).

Petitioner contends that during the three-day period between his arrest (on March 15th) and the indictment/retention of Ray (on March 18th), Attorneys Aney and Hobika were acting as his attorneys while they simultaneously represented prosecution targets and grand jury witnesses Dominic Crocilla and Matthew Cuda, thereby creating an actual conflict of interest that deprived Petitioner of the effective assistance of counsel. For the sake of convenience, this three-day period will be referred to as the " post-arrest, pre-indictment period."

With regard to Attorney Hobika, Petitioner's claim must fail. There was simply no evidence presented to the trial court or Appellate Division regarding Hobika's alleged simultaneous representation of Petitioner and the prosecution witnesses (Crocilla and Cuda) during the post-arrest, pre-indictment period. As discussed above, Petitioner offered testimony at the Huntley

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hearing to the effect that Hobika was his attorney during the pre -arrest period, but the trial court found that testimony not credible.

There was some evidence in the state court record suggesting that Hobika represented Crocilla in January of 1995, shortly before the start of Petitioner's trial and nearly a year after the post-arrest, pre-indictment period.[12] However, there was no evidence presented to the state court that Hobika simultaneously represented Petitioner, Crocilla, or Cuda during the three-day post-arrest, pre-indictment period.[13] Accordingly, this Court cannot find, based upon the evidentiary record, limited by Pinholster to the record presented to the state courts, that the Appellate Division's decision regarding Attorney Hobika was " resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." [14]

The situation is more complicated as it relates to Attorney Aney. There is no question that Aney represented Petitioner for at least one court appearance on March 16, 1994. During that court appearance Aney advised that he would be appearing for Petitioner from that point forward. Indeed, Attorney Aney stated that he would be preparing and bringing a bail application on behalf of Petitioner. It is clear that Aney's representation ended no later than March 18, 1994, when Petitioner's parents retained Attorney Ray to act as Petitioner's counsel. The State court record is inconclusive as to whether Aney's representation ended at some point prior to March 18, 1994.

As discussed above, the Appellate Division assumed for the sake of argument that Aney represented Petitioner during the post-arrest, pre-indictment period and concluded that any possible conflict of interest during that period was not prejudicial

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to Petitioner. In the absence of evidence that Aney's representation terminated prior to March 18th, it seems reasonable to adopt the Appellate Division's presumption that the representation continued until the point at which the retainer agreement with Ray was executed. As such, this Court will presume, as did the Appellate Division, that Attorney Aney represented Petitioner between March 16, 1994, and March 18, 1994 (the entire post-arrest, pre-indictment period).[15] With that assumption as foundation, this Court proceeds to an examination of the impact of an actual conflict of interest on the constitutional right to counsel.

The Sixth Amendment guarantees criminal defendants " the right . . . to have the Assistance of Counsel for his defense." U.S. Const. Amend. VI. The right to counsel implies the right to an attorney unburdened by a conflict of interest. See Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)(noting that " [w]here a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest" ).

In this Circuit, there are three general categories of conflicts to be considered when assessing a defendant/petitioner's claim that his constitutional right to counsel was violated by a conflict of interest: (1) per se conflicts, which do not require any showing of prejudice by the defendant/petitioner; (2) actual conflicts, which carry a presumption of prejudice; and (3) potential conflicts, which require a showing of both deficient performance by counsel and prejudice. See United States v. Doe No. 1, 272 F.3d 116, 125 (2d Cir. 2001).

The present case does not implicate the very narrow category of per se conflicts, which exist only when the attorney was unauthorized to practice law or was implicated in the criminal activity with which his or her client is charged. See United States v. Rondon, 204 F.3d 376, 379-80 (2d Cir. 2000). Rather, this case involves a claim that Attorney Aney was operating under an actual conflict by virtue of his concurrent representation of Petitioner and witnesses before the grand jury ( i.e. Crocilla and/or Cuda). The concurrent representation of multiple defendants is an " actual conflict of interest" sufficient to invoke the presumption of prejudice under applicable Supreme Court precedent. See Mickens v. Taylor, 535 U.S. 162, 175, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002).

However, Petitioner's claim faces an immediate proof problem due to the lack of evidence in the state court records that Aney represented Crocilla and/or Cuda during the post-arrest, pre-indictment period.[16] Petitioner does not even have an arguable actual conflict of interest claim

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unless there was, in fact, concurrent representation of Petitioner and one (or more) prosecution targets/grand jury witnesses. Given the lack of evidence in the state court record concerning Aney's alleged representation of Crocilla and/or Cuda during the relevant time period, this Court cannot conclude that the Appellate Division's decision rejecting Petitioner's conflict of interest claim was " based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," as would be required to grant relief under the AEDPA standard.

Moreover, for the reasons outlined below, habeas relief is not available even if one assumes for the sake of argument that Aney simultaneously represented Petitioner and Cuda/Crocilla.

Although a defendant must ordinarily establish prejudice to prevail on an ineffective assistance of counsel claim, " [p]rejudice is presumed . . . if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.'" Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)(emphasis added). These components are " considered in a single, integrated inquiry" and, as such, an " actual conflict," in the context of the Sixth Amendment, is " a conflict of interest that adversely affects counsel's performance." Eisemann v. Herbert, 401 F.3d 102, 107 (2d Cir. 2005)(quoting Mickens, 535 U.S. at 172 n. 5).

The Circuits have reached different conclusions with regard to how a defendant demonstrates that a conflict " adversely affected" counsel's performance. The Second Circuit has held that the defendant " need suggest only a 'plausible' alternative strategy that was not pursued at trial, not necessarily a 'reasonable' one." Eisemann, 401 F.3d at 107 (quoting United States v. Feyrer, 333 F.3d 110, 116, 118 (2d Cir. 2003)). Furthermore, the Second Circuit has concluded that " [w]ith respect to the substance of the plausible alternative strategy, the defendant need not show that the defense would necessarily have been successful had it been used, only that 'it possessed sufficient substance to be a viable alternative.'" Id. (quoting Feyrer, 333 F.3d at 116).

In contrast, other Circuits have taken a " slightly more demanding approach, requiring suggestion of a defense that was objectively reasonable." Id. (collecting cases). Under that standard, the defendant must: (1) " identify a plausible alternative defense strategy or tactic that defense counsel might have pursued," (2) " show that the alternative strategy or tactic was objectively reasonable under the facts of the case," and (3) " establish that the defense counsel's failure to pursue the strategy or tactic was linked to the actual conflict." Mickens v. Taylor, 240 F.3d 348, 361 (4th Cir. 2001); see also Covey v. United States, 377 F.3d 903, 908 (8th Cir. 2004), Quince v. Crosby, 360 F.3d 1259, 1264-65 (11th Cir. 2004).

Here, Petitioner offers two defense strategies that he contends Aney could have pursued during the post-arrest, pre-indictment period and argues that Aney failed to pursue those strategies because they were inherently in conflict with his concurrent representation of Crocilla and Cuda. Specifically, Petitioner argues that Aney could (and should) have pursued a plea agreement on Petitioner's behalf during this time period and should have encouraged Petitioner to testify before the grand jury.

With regard to the alleged failure to pursue a plea agreement, this Court is not persuaded that pursuit of a plea bargain during the post-arrest, pre-indictment period

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was a plausible defense strategy, let alone an objectively reasonable one. As such, Petitioner's claim fails whether one applies the " objectively reasonable" standard for determining adverse effects or the Second Circuit's more lenient " plausible alternative" test.

The " failure to obtain a plea bargain is not evidence of ineffective assistance of counsel when the record does not contain evidence that one might have been offered." Eisemann, 401 F.3d at 109 (citing Burger v. Kemp, 483 U.S. 776, 785-89, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)).

In the present case, as in Burger and Eisemann, the " notion that the prosecutor would have been receptive to a plea bargain is completely unsupported by the record." Id. (quoting Burger, 483 U.S. at 785). Once Benner (Petitioner's accomplice) began cooperating, it is not clear what evidence Petitioner might have offered the prosecution against Crocilla, Cuda, Benner, or anyone else that might have induced the prosecutor to plea bargain. Indeed, given the strength of the prosecution's case against Petitioner, which included statements from Benner and incriminating statements by Petitioner (wherein he admitted being present at the murder scene in possession of a gun and admitted covering up the murders), it is difficult to envision a scenario in which the prosecution would have been interested in offering Petitioner any meaningful benefit in exchange for his cooperation.[17]

While Petitioner does not need to prove " that the negotiation of a plea bargain would have been successful, the strategy must nevertheless 'possess [ ] sufficient substance to be a viable alternative." Eisemann, 401 F.3d at 110 (quoting Winkler v. Keane, 7 F.3d 304, 309 (2d Cir. 1993)); see also Armienti v. United States, 313 F.3d 807, 811 (2d Cir. 2002)(rejecting ineffective assistance claim based upon failure to pursue plea agreement due to lack of evidence that defendant " had any information to offer" against third party and absence of " convincing evidence that the prosecution was interested in obtaining information from [defendant]" ). For the reasons outlined above, this Court finds that the plea bargain strategy did not possess sufficient substance to be a viable alternative during the post-arrest, pre-indictment period.

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Moreover, Petitioner's repeated claims of innocence and the fact that he ultimately proceeded to trial undermine his suggestion that pursuing a plea bargain during the post-arrest, pre-indictment period was a plausible (or objectively reasonable) defense strategy. It is not clear that Petitioner would have accepted a plea bargain even if one had been sought and an offer had been made. See Armienti, 313 F.3d at 815 (" The facts surrounding [defendant's] own refusal to pursue a plea agreement, however, negate the notion that it was a plausible alternative under the adverse effects standard." )(citing United States v. Yost, No. 98 CR. 974, 2001 WL 536937, at *7 (S.D.N.Y. May 21, 2001)).

With regard to the possibility of counseling Petitioner to exercise his right to testify before the grand jury, Petitioner has not demonstrated that this was a plausible defense strategy (or, for that matter, an objectively reasonable one). It is difficult to understand how waiving his Fifth Amendment rights and testifying before the grand jury was likely to prevent an indictment or otherwise help Petitioner, particularly given the strength of the prosecution's case. Indeed, encouraging Petitioner to waive his protection against self-incrimination and testify before the grand jury would have been highly imprudent under the circumstances. See, e.g., Kohler v. Kelly, 890 F.Supp. 207, 213 (W.D.N.Y.1994)(" There are a number of valid, tactical reasons for counsel to decide that [a defendant] should not testify before the grand jury. If [defendant] had testified, he would have exposed himself to cross-examination by the prosecution, and could have been questioned about his previous crimes. In addition, he would have waived the privilege against self-incrimination with regard to the information he volunteered. This provides the prosecution with valuable pretrial discovery, and also gives the prosecution material with which to impeach the defendant if he testifies at trial." ).

As such, counseling Petitioner to testify before the grand jury was not a plausible (let alone objectively reasonable) alternative strategy. Moreover, common to both of the " adverse effects" approaches is the requirement that the defendant establish a link between counsel's failure to pursue the strategy in question and the conflict of interest. See Eisemann, 401 F.3d at 108 (" In order to demonstrate that a conflict of interest adversely affected representation even under this Circuit's lenient standard, [the defendant] must show that at least some plausible defense strategy was forgone as a consequence of [counsel's] conflict of interest." )(emphasis added); United States v. Nicholson, 611 F.3d 191, 212 n. 19 (4th Cir. 2010)(noting the " link" requirement is common to both approaches).

In this case, given the legitimate tactical reasons for not encouraging Petitioner to testify before the grand jury, Aney's alleged conduct in that regard cannot be said to have been " linked to" or inherently connected with any alleged concurrent representation of Crocilla and/or Cuda. In other words, ample legitimate reasons existed for encouraging Petitioner not to testify before the grand jury, separate and apart from any difficulties such testimony might have theoretically posed for Aney's other clients.

Petitioner also contends that Aney shared his confidences with James Pugliese, a prosecution witness. Pugliese was called by the prosecution as a rebuttal witness at trial. Pugliese testified with Attorney Aney acting as his attorney and with Aney sitting right next to him. (TT at 1575, 1589). Pugliese testified that on October 6, 1993 (shortly before the murders), he overhead a conversation in which Petitioner told a third party (William Bullis)

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that he [Petitioner] needed a gun. (TT at 1571-72). Petitioner now claims that, following his arrest, he confided concerns to Aney about what Pugliese may have overheard. Petitioner further alleges that Aney shared that confidence with Pugliese and encouraged Pugliese to divulge that information to the prosecution to obtain a favorable disposition of a narcotics charge lodged against him. Petitioner also suggests that Aney may have divulged confidences to Crocilla as part of an effort to obtain a more favorable disposition for Crocilla in connection with the murder investigation.

Petitioner's claim must fail. The record before the trial court and Appellate Division did not contain any details concerning the nature of the confidences allegedly shared with Aney, let alone any evidence that those confidences were divulged or that any such disclosure was prejudicial to Petitioner. Petitioner's brief on direct appeal makes generic reference to " confidential and strategically valuable information" allegedly obtained by Aney (and Hobika) while representing Petitioner. (Exhibit A, at p. 20)(emphasis in original). Petitioner's affidavit in support of his 440 motion likewise contains a vague reference to the fact that Petitioner " openly discussed" the details of the case with Aney and Hobika. (V. Pepe Affidavit, attached as part of Exhibit G). While it is certainly possible that Petitioner shared information with Aney and Hobika, given the lack of specific evidence related to this claim (and mindful of the evidentiary restriction recognized in Pinholster), this Court cannot find that the Appellate Division's decision rejecting this claim was " based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Accordingly, for the reasons outlined above, this Court finds that Petitioner is not entitled to habeas relief with respect to his claim that he was deprived of his Sixth Amendment right to the effective assistance of counsel based upon alleged conflicts of interest involving Attorneys Joseph Hobika and/or George Aney.

f. Recommendation of Attorney Misconduct Referral/Investigation

Notwithstanding the finding that Petitioner did not establish a constitutional violation arising from Attorney Aney and Hobika's conduct sufficient to warrant habeas relief, this Court finds that the evidence presented at the Sparman hearing credibly and conclusively established serious lapses in legal ethics and professional judgment by Attorneys Hobika and Aney. This Court has no doubt that Hobika and Aney simultaneously represented Petitioner and grand jury witnesses during the relevant time periods. Further, this Court believes that Hobika and Aney were untruthful during their Sparman hearing testimony. Their demeanor evidenced a casual disregard for the truth and their testimony was transparently tailored to avoid responsibility.

Attorney Hobika's claim that he did not represent Petitioner during the pre-arrest period was contradicted by Charles Wason, an attorney with no apparent motive to misrepresent. Wason was an associate of Kenneth Ray, Petitioner's trial counsel. Wason testified that Petitioner told him that Hobika had represented him during the police investigation and that Hobika had instructed Petitioner to refer all police questions to Hobika or Aney. (SH at 30). In anticipation of the pre-trial Huntley hearing, Wason telephoned Hobika. According to Wason, Hobika confirmed his communications with Petitioner and acknowledged telling Petitioner to refer police questions to Aney or Hobika. (SH at 37). Wason thereafter re-contacted Hobika to explain that he would be subpoenaed

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as a Huntley hearing witness. Wason stated that Hobika became angry, said that he would hurt Petitioner's case if called to testify, and threatened to deny representing Petitioner. (SH at 37-38). Hobika denied ever speaking with Petitioner about the murders and disputed Wason's testimony concerning their telephone conversations. (SH at 103-104, 119-120). Having observed the testimony of the witnesses, this Court finds Wason's testimony on this point vastly more credible than Hobika's denials.

With regard to the post-arrest period, Hobika admitted that he accompanied Matthew Cuda to the grand jury proceedings held on March 17, 1994. Hobika then denied that he was acting as Cuda's attorney, offering the ludicrous explanation that he attended " for basically moral support" and as a personal " learning experience." (SH at 110-112, 129). In addition to being inconsistent with common sense, this claim is contradicted by Matthew Cuda, who testified that Hobika represented him in connection with the grand jury (SH at 370-71, 375). Although he certainly has a checkered record, Cuda's testimony on this and other points was highly credible. Moreover, Hobika's credibility is suspect in light of his conviction for criminal solicitation in the fourth degree and suspension from the practice of law due to his involvement with a scheme to present false testimony at a workers' compensation hearing. (SH at 137).

Attorney Aney acknowledged entering a general appearance as Petitioner's attorney on March 16, 1994. (SH at 205-206). Aney also testified that he met with Petitioner in jail later that evening to discuss the case, wherein Aney advised Petitioner not to testify before the grand jury. (SH at 223-25). Aney then admitted being present at the courthouse the next day, when Crocilla and Cuda testified before the grand jury -- his attendance having been arranged at the request of Crocilla. (SH at 210, 255). Aney testified that he spoke with the Assistant District Attorney about immunity for Crocilla. (SH at 212, 231, 256). Aney said he did not " recall" whether he had discussed immunity for Cuda. (SH at 231). Aney told the Assistant District Attorney that he was not representing Petitioner and in fact had " never" represented Petitioner. (SH at 212, 215, 217).

In his Sparman testimony, Aney testified that he never represented Petitioner. (SH at 219). He further suggested that, although he was present in the courthouse during the grand jury proceedings and discussed immunity for Crocilla with the prosecutor, he was not acting as an attorney for either Crocilla or Cuda. (SH at 200-01, 217, 255-56). Further, Aney testified that he did not represent anyone in connection with this case (SH at 217)(" I really represent nobody" ), notwithstanding the fact that he appeared at a court proceeding on behalf of Petitioner (and discussed making a bail application on his behalf), visited Petitioner in jail to discuss the case (and advised Petitioner not to testify before the grand jury), and discussed immunity with the prosecutor on behalf of Crocilla.

Aney's preposterous claims were contradicted by Attorney Hobika (who testified that Aney was acting as the attorney for Crocilla and Cuda -- SH at 112, 114-16), Crocillia (who testified that Aney was acting as his attorney -- SH at 625), and Cuda (who testified that Aney was acting as Crocilla's attorney -- SH at 375). The claim that Aney never represented Petitioner is obliterated by the undisputed facts -- Aney made a general appearance on Petitioner's behalf at a court proceeding, indicated he would a prepare bail application on his behalf, discussed the facts

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of the case during a jailhouse visit, and advised Petitioner not to testify before the grand jury.

In addition and most importantly, Judge Michael Dwyer (who prosecuted the case and handled the grand jury proceedings) testified that Aney and Hobika accompanied Crocilla and Cuda to a meeting at the District Attorney's Office on the day of the grand jury proceedings, that he discussed the possibility of immunity for Crocilla and Cuda with Aney, and that he advised Aney of the inherent conflict created by the fact that Aney had appeared the day before on behalf of Petitioner and was now representing potential prosecution witnesses. (SH at 146-49, 153-54).

Accordingly, the overwhelming weight of the evidence presented at the Sparman hearing leads to the conclusion that Attorneys Hobika and Aney simultaneously represented Petitioner and prosecution witnesses during critical phases of the proceedings. It is likewise apparent to this Court that Hobika and Aney were untruthful in their Sparman testimony.

Having made these findings, three critical observations are necessary. First, as discussed at length above, Pinholster constrains the scope of this Court's review, foreclosing consideration of the compelling evidence presented at the Sparman hearing. This Court's review has thus been limited to the record presented before the state courts and, for the reasons outlined above, this Court finds that Petitioner has not established that the state courts' adjudication of this particular claim " resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(emphasis added).

Second, for the reasons set forth supra, even if this Court was permitted to consider the Sparman evidence and conclude that Aney and Hobika represented Petitioner while burdened by an actual conflict of interest during the post-arrest, pre-indictment period, Petitioner cannot establish the requisite " adverse effects" to warrant habeas relief.

Third, violations of the Code of Professional Responsibility by Attorney Aney and Hobika are not equivalent to violations of the constitutional right to effective assistance of counsel. In other words, Aney and Hobika may have acted unethically, even though their ethical lapses did not " adversely affect" their representation of Petitioner sufficient to warrant habeas relief. The ethical duties imposed upon attorneys at law are much greater than the limited scope of conduct that constitutes the ineffective assistance of counsel. See Nix v. Whiteside, 475 U.S. 157, 165, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (" [B]reach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel" ); Mickens v. Taylor, 535 U.S. 162, 176, 122 S.Ct. 1237, 1246, 152 L.Ed.2d 291 (2002)(" This is not to suggest that one ethical duty is more or less important than another. The purpose of our . . . exceptions from the ordinary requirements of Strickland, however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant's Sixth Amendment right to counsel." ).

Accordingly, this Court is constrained by the applicable law to find that Petitioner is not entitled to habeas relief and to recommend denial of his ineffective assistance claim on that basis. However, this

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Court hereby directs the Clerk of the Court to provide a copy of this Report and Recommendation and the Sparman hearing transcript to the Chief Judge of the Northern District of New York for review pursuant to Rule 83.4 of the Local Rules of Practice and referral to the Attorney Grievance Committee of the Appellate Division, Fourth Department. It appears both Attorneys Aney and Hobika are admitted to practice in the Northern District of New York.

This Court recommends and urges the Chief Judge to institute and pursue proceedings to investigate and address evident lapses in professional responsibility and potential criminal conduct on the part of Attorneys Aney and Hobika (including, but not limited to, whether Aney and/or Hobika simultaneously represented Petitioner and prosecution witness and whether the testimony offered before this Court at the Sparman hearing was knowingly false).

2. Ineffective Assistance (Kenneth Ray)

The second major aspect of Petitioner's ineffective assistance of counsel claim relates to the performance of Kenneth Ray, his trial counsel. In sum, Petitioner alleges that Ray knew of the Hobika/Aney conflict issue and should have moved on that basis to quash the indictment and, further, that Ray should have more effectively established the Hobika/Aney conflict in support of his efforts to suppress Petitioner's pre-arrest statements.

a. State Court Determination

Petitioner did not assert an ineffective assistance claim with respect to Attorney Ray on direct appeal. (Exhibit A). The claim was first advanced in support of Petitioner's first 440 motion. (Exhibit G). However, the County Court's decision denying the 440 motion makes no reference to the Ray ineffective assistance claim. (Exhibit H). The Appellate Division denied Petitioner's motion for leave to appeal from the County Court's decision without opinion. (Exhibit J).

As discussed above, the County Court did address the Aney/Hobika conflict claim itself, denying the claim on the procedural, state law ground that the claim had been determined on direct appeal and could not, therefore, be re-litigated.

The Ray ineffective assistance claim, which was not raised on direct appeal, could not have been denied on that basis. As such, one would reasonably expect it to have been given separate consideration. This raises the question of whether the Attorney Ray ineffective assistance claim was " adjudicated on the merits" by the state court.

The answer to this question is potentially significant because a claim raised but not adjudicated on the merits by the state courts is given de novo habeas review (as opposed to the highly deferential review required under AEDPA), Brown, 283 F.3d at 498. In addition, Pinholster would not bar consideration of the Sparman hearing evidence regarding the claim. See Pinholster, 131 S.Ct. at 1400-01(limiting application to claims adjudicated on the merits by the state courts).

As discussed above, in the Second Circuit, " to qualify as an adjudication 'on the merits,' a state court decision need not mention a particular argument or explain the reasons for rejecting it." Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir. 2003)(quoting Brown v. Artuz, 283 F.3d 492, 498 (2d Cir.2002); and citing Aparicio v. Artuz, 269 F.3d 78, 93-94 (2d Cir.2001); Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)).

Where, " 'there is no basis either in the history of the case or the opinion of the

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Appellate Division for believing' that the claim at issue 'was denied on procedural or any other nonsubstantive grounds,' a terse statement that 'remaining contentions are without merit' suffices to trigger AEDPA's heightened standard of review." Dallio, 343 F.3d at 560 (quoting Brown, 283 F.3d at 498).

In a recent decision, the Supreme Court held that " [w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 784-85, 178 L.Ed.2d 624 (2011). " The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.

In the present case, the County Court concluded its decision denying Petitioner's first 440 motion as follows: " In light of the findings herein, pursuant to Sections 440.10 and 440.30 of the Criminal Procedure Law, the Defendant's motion is in all respects denied." (Exhibit H, at p. 5).

The County Court's language suggests four possibilities concerning the Ray ineffective assistance claim: (1) the County Court overlooked the claim; (2) County Court (erroneously) believed the claim had been raised and decided on direct appeal and rejected it on that basis; (3) County Court reviewed the claim, deemed it lacking in merit and not worthy of discussion, and rejected the claim on the merits when it denied the motion " in all respects; " or (4) County Court considered the claim procedurally barred by CPL 440.10 (2)(c) (which provides for the denial of claims the defendant could have raised on direct appeal, but unjustifiably failed to) and denied the claim on that procedural basis without saying so explicitly.

A careful review of the County Court's decision strongly indicates that the first two possibilities ( i.e. that County Court overlooked the Ray claim or incorrectly thought the claim had been litigated on direct appeal) are more likely than the latter two options. In denying the motion " in all respects," the County Court related its decision back to " the findings herein." [18] This suggests the court believed it had addressed all of the claims raised and articulated its reasons for rejecting them in its " findings." This is unlike, for example, a summary denial in which the court rejects the defendant's " remaining contentions," which indicates that the court is summarily disposing of claims not otherwise discussed in its decision.[19] The County Court's reference back to " the findings herein" suggests it believed (incorrectly) that it had addressed the Ray claim. As such, this Court tends toward the view

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that the Ray ineffective assistance claim was not adjudicated on the merits by the state courts and may thus be considered de novo on habeas review. However, out of an abundance of caution, this Court will review the claim under both the deferential AEDPA standard and de novo. For the reasons outlined below, Petitioner is not entitled to relief under either standard.

b. Review of Ray Ineffective Assistance Claim

Ineffective assistance claims are generally evaluated under the test set forth in Strickland v. Washington, 466 U.S. at 686, and recently reaffirmed in Pinholster, 131 S.Ct. at 1403. Under that test, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Pinholster, 131 S.Ct. 1403 (emphasis original)(quoting Strickland, 466 U.S. at 686).

Because " the 'tempt[ation] for a defendant to second-guess counsel's assistance after conviction or adverse sentence,' . . . counsel should be 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment . . . .'" Id. (quoting Strickland, 466 U.S. at 690).

" To overcome that presumption, a defendant must show that counsel failed to act 'reasonabl[y] considering all the circumstances.'" Id. (quoting Strickland, 466 U.S. at 688). " The Court cautioned that '[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.'" Id. (quoting Strickland, 466 U.S. at 690).

In addition, to prevail on an ineffective assistance claim under Strickland, the defendant must establish prejudice. In particular, " [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Strickland, 466 U.S. at 694). " A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. " That requires a 'substantial,' not just 'conceivable,' likelihood of a different result." Id. (quoting Richter, 131 S.Ct. at 791).

In the present case, Petitioner asserts that Attorney Ray was ineffective for the following reasons: he should have more effectively addressed the Aney/Hobika conflict issue in connection with the Huntley hearing, he should have alerted the trial court to the conflict of interest, and he should have used the conflict of interest to prevent the trial testimony of Pugliese and Crocilla. This Court will consider each argument in turn.

i. Huntley Hearing

As discussed above, Attorney Ray filed a pre-trial motion to suppress incriminating pre-arrest statements made by Petitioner pursuant to People v. Huntley, 15 N.Y.2d 72, 204 N.E.2d 179, 255 N.Y.S.2d 838 (1965), on the grounds that the statements were taken while Petitioner was represented by counsel.

Petitioner claimed that he was represented by Attorneys Aney and Hobika during this period and that he repeatedly invoked his right to counsel while interacting with the police and David Benner (who acted undercover as an agent of the police). The trial court denied Petitioner's motion because he found, inter alia, that

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Petitioner was not represented by counsel during the pre-arrest period. (PE #18).

In the course of rendering that decision, the trial court opined as follows: " Defendant could have easily met this burden by subpoenaing either Attorney Aney or Attorney Hobika to establish the attorney-client relationship, but defendant failed to do so." (PE #18, at p. 6). Petitioner contends that Ray's failure to subpoena Aney or Hobika as witnesses at the Huntley hearing fell below an objective standard of reasonableness and amounted to ineffective assistance of counsel. This Court finds Petitioner's argument unavailing under either de novo or AEDPA review.

Although the trial court indicated that Petitioner could have met his burden of proof by subpoenaing Aney and/or Hobika, that is true only if the attorneys were subpoenaed and testified that they did, in fact, represent Petitioner during the pre-arrest period. Attorney Ray could quite reasonably have feared that Aney and/or Hobika would deny the representation, thereby seriously damaging the prospects of Petitioner's suppression motion. If Aney and Hobika had made such denials, the trial court could not have granted the motion without concluding that the attorneys were lying, an outcome Ray could reasonably have believed was unlikely.[20]

Consideration of the Sparman hearing testimony lends further credence to the view that Attorney Ray's decision not to subpoena Aney and/or Hobika was a strategic choice, which is " virtually unchallengeable" in habeas corpus proceedings. See Strickland, 466 U.S. at 690-91.

Before discussing the Sparman hearing testimony, however, consideration of Attorney Ray's Sparman affirmation is necessary. Attorney Ray was unable to testify at the Sparman hearing due to a terminal illness.[21] In lieu of his testimony, Respondent submitted an affirmation from Attorney Ray dated September 8, 2008. (Docket No. 82-2).

In his affirmation, Ray stated that he was " fully familiar with the facts of the case" and that, to his " knowledge," Hobika " did not handle felony criminal matters" and never represented Petitioner in the case. (Docket No. 82-2, at ¶ 3, 4). Ray further stated his belief that Aney's representation was limited to a single pre-indictment court appearance. (Docket No. 82-2, at ¶ 5).

These statements are curious (to say the least) among many curiosities in this case in that the pre-trial suppression motion, which was brought by Attorney Ray, was based upon the allegation that Hobika and Aney represented Petitioner during the pre-arrest period. Moreover, Ray clearly had " knowledge" that Hobika and Aney represented Petitioner during that period. During the Huntley hearing, upon questioning by Ray, Petitioner testified that he told the police he was represented by Aney and Hobika. (T at 755a). On cross-examination, with Ray present in the courtroom, Petitioner testified that he contacted Hobika regarding the murder investigation and

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considered Hobika retained as his attorney in that regard. (T at 797a-798a).

These facts simply cannot be reconciled with the statements in Attorney Ray's September 2008 affirmation. In the Court's view, Ray's affirmation was untruthful. The affirmation's glaring inconsistency leads to the following conclusion: either Ray's memory of the events in question was impacted by age and/or illness[22] or someone other than Ray was the source of the information contained in the affirmation.

Indeed, at the Sparman hearing, the Assistant Attorney General advised that she prepared the affirmation after speaking with Judge Dwyer (who prosecuted the case against Petitioner) about a conversation Judge Dwyer said he had with Ray concerning the case. (SH at 599-600). It is apparent from her representations that the Assistant Attorney General used Judge Dwyer's statements about his conversation with Ray as the sole source of the content of the affidavit. (SH at 601). It is also clear that the Assistant Attorney General did not obtain the facts contained in the affidavit in any preparation session with Attorney Ray. (SH at 599-600). Rather, the Assistant Attorney General presented Ray's affidavit to the court, after obtaining the signature of the affiant under seriously questionable circumstances, given Ray's incapacity. (SH at 601). The Assistant Attorney General prepared an affirmation based upon what Judge Dwyer said Ray said and then offered a signed copy of that affirmation as evidence to this Court. (SH at 599-602).[23] In any event, this Court affords no weight whatsoever to Attorney Ray's September 2008 affirmation.[24]

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In contrast, the Sparman hearing testimony of Ray's associate, Charles Wason, is credible and offers insight into Ray's strategic decision-making with regard to the Huntley hearing. Wason testified that it was his understanding that Petitioner was represented by Hobika during the pre-arrest period, that Hobika told Petitioner to refer any law enforcement inquires to him or George Aney, but that Aney was " more of just a name," rather than someone with whom Petitioner had an attorney-client relationship. (SH at 35). As discussed above, Wason testified that he spoke with Hobika on the telephone prior to the Huntley hearing and that Hobika confirmed that he had represented Petitioner and had advised Petitioner to refer law enforcement questions to Aney or Hobika. (SH at 36-37). Wason then had a subsequent conversation with Hobika, in which Hobika stated that he would deny any representation of Petitioner in connection with the murders and would " hurt" Petitioner's defense if subpoenaed to testify at the Huntley hearing. (SH at 37). Wason conveyed this information to Attorney Ray. (SH at 37-38). Wason and Ray discussed the conversation and Ray made the decision not to call Hobika as a witness. (SH at 40).

Under the circumstances, this Court cannot conclude that Ray's decision not to call Hobika was objectively unreasonable. Ray could have concluded that Hobika would deny representing Petitioner (a likely outcome given his statement to Wason) and that the trial court would credit Hobika's denial even if Wason was permitted to contradict the denial via rebuttal testimony. In other words, Ray appears to have been concerned that a denial by Hobika would operate as a " trump card," obviating all other evidence in the eyes of the court. As such, Ray elected to rely on other evidence to establish Hobika's representation (e.g. the testimony of Petitioner and David Benner), rather than undertaking the risk of calling Hobika and inviting a credibility contest between Hobika and Wason.[25]

Regarding Attorney Aney, Wason testified that it was his understanding that George Aney was " just a name" to Petitioner during the pre-arrest period and that Hobika had given Aney's name to Petitioner to provide to the police, but that Aney and Petitioner had never met and there was no retainer agreement. (SH at 72, 93). Wason then explained the decision not to subpoena Aney to the Huntley hearing as follows:

Ken [Ray] and I determined when we were strategizing that -- not to call George Aney, we didn't think he was going to help in our defense of [Petitioner] and help create -- help demonstrate or prove that he had counsel at the time the two statements were taken, so we didn't call him.

(SH at 73). As such, it appears Ray made the strategic choice not to call Aney either because he believed Aney did not actually represent Petitioner during this time period or because he surmised that Aney would deny the representation, thereby damaging Petitioner's credibility and distracting

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the court from the question of whether Hobika represented Petitioner, which might well have seemed to be the stronger argument.

Although reasonable defense counsel might disagree as to whether Ray's strategic choices were correct, they cannot be considered objectively unreasonable. See Skinner v. Duncan, Nos. 02-CV-3430, 03-MISC-0066, 2003 WL 21386032, at *40 (S.D.N.Y. Jun. 17, 2003) (citing Ryan v. Rivera, No. 00-2153, 21 F.App'x 33, 34 (2d Cir.2001) ( " [W]hen a party challenges matters of trial strategy, such as the decision not to call a witness, even greater deference is generally warranted: '[A]n appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification for the course taken.'" ) (quoting United States v. Luciano, 158 F.3d 655, 660 (2d Cir.1998))); see also Pinholster, 131 S.Ct. at 1403 (noting that " [t]here are countless ways to provide effective assistance in any given case," and that " [e]ven the best criminal defense attorneys would not defend a particular client in the same way" )(quoting Strickland, 466 U.S. at 689). Accordingly, this Court finds that Petitioner is not entitled to habeas relief as to this claim.

2. Failure to Alert the Trial Court and/or Move to Preclude

Petitioner also contends that Attorney Ray was unconstitutionally ineffective because he (a) failed to alert the trial court to the conflict of interest posed by Attorney Hobika and Attorney Aney's simultaneous representation of prosecution witnesses and (b) did not move to preclude the testimony of the witnesses. This Court finds Petitioner's claim unavailing for the following reasons.

In order for Ray to have even arguably been ineffective in this regard he would have had to know of the alleged conflicts at the relevant time. To the extent Petitioner's claim is based upon Ray's failure to investigate and discover the conflicts, Ray would need to have had some reason to conduct that investigation. See Polanco v. United States, Nos. 99 Civ. 5739(CSH), 94 CR. 453(CSH), 2000 WL 1072303, at *10 (S.D.N.Y. Aug. 3, 2000) (" Such undetailed and unsubstantiated assertions that counsel failed to conduct a proper investigation have consistently been held insufficient to satisfy either Strickland prong." ); Matura v. United States, 875 F.Supp. 235, 237 (S.D.N.Y.1995) ( " Petitioner's bald assertion that counsel should have conducted a more thorough pretrial investigation fails to overcome the presumption that counsel acted reasonably." ).

Although the evidence establishes that Attorney Ray had reason to believe that Hobika represented Petitioner during the pre-arrest period (as discussed above, that alleged representation was one of the grounds asserted in Ray's Huntley motion), there was no evidence presented to the state courts suggesting that Attorney Ray knew or had reason to know that Attorney Hobika represented prosecution witnesses at any time relevant to the case, which is fatal to the claim under AEDPA review.[26]

In addition, the claim lacks sufficient support even if considered de novo with the Sparman evidence. At the Sparman hearing, Wason testified that he and Ray were aware of Hobika's " social relationship" with Crocilla and Cuda (SH at 30-32, 37), but there was no evidence that Ray

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knew or reasonably should have known that Hobika represented Crocilla and/or Cuda at the grand jury or at any other time in connection with the case.

For the same reason, Petitioner's argument that Ray should have moved to quash the indictment based upon the Hobika conflict of interest must be rejected because the record lacks evidence to the effect that Ray knew or reasonably should have known about Hobika's simultaneous representation of Petitioner and grand jury witnesses.

Likewise, Petitioner's claim fails as it relates to Attorney Aney. As a threshold matter, there was no evidence in the state court records that, prior to the start of the trial, Ray knew or had reason to know that Aney represented Crocilla, Cuda, or Pugliese. As such, the fact that Ray did not advise the trial court of any arguable pre-trial conflict of interest involving Attorney Aney cannot constitute ineffective assistance of counsel. In like manner, Petitioner's suggestion that Attorney Ray should have sought to quash the indictment due to Aney's simultaneous representation of prosecution witnesses is unavailing because there is no evidence that Ray knew or reasonably should have known that Aney represented grand jury witnesses at the time of the grand jury proceedings.

With that said, Attorney Ray was aware (or reasonably should have been aware) of a potential conflict of interest at trial when Aney appeared on behalf of two prosecution witnesses, Crocilla and Pugliese. At that point, Ray would have been aware that (a) Aney had represented Petitioner and (b) that Aney was now representing two prosecution witnesses. Petitioner suggests that Ray should have sought to bar the testimony of these two witnesses on the grounds that he (Petitioner) shared confidences with Aney, which Aney then shared with Crocilla and Pugliese.

However, Petitioner has not satisfied Strickland prejudice prong because he has not demonstrated a substantial likelihood that Attorney Ray would have succeeded with an attempt to bar the testimony of Crocilla or Pugliese. Petitioner has not provided any legal authority to suggest that Crocilla and/or Pugliese were prohibited from testifying per se because they were represented by Petitioner's former counsel. Rather, it would appear that their testimony would only have been precluded if (a) Petitioner was willing to reveal the confidences he allegedly shared with Aney to the trial court and (b) the trial court was persuaded that the testimony of Crocilla and/or Pugliese was based upon confidences divulged by Aney.

There is insufficient evidence in the state court records to demonstrate a substantial likelihood that either of these conditions would have been satisfied, thereby rendering Petitioner unable to satisfy Strickland's prejudice prong under AEDPA review. See Strickland, 466 U.S. at 687 ( granting relief based upon ineffective assistance of counsel requires " a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that " but for" the claimed errors of counsel, the trial result would have been different" ). To wit, as discussed below, there is a strong likelihood that Petitioner would not have disclosed the confidences to the trial court and that, even if he did, the trial court would have concluded that the testimony of Crocilla and Pugliese was based upon their personal knowledge, rather than information improperly obtained from Attorney Aney.

Petitioner's claim is not materially improved by consideration of the Sparman evidence. Petitioner was extremely reluctant

Page 495

to disclose the confidences he allegedly shared with Aney to this Court. Indeed, Petitioner's counsel moved unsuccessfully to preclude any mention of those confidences during Petitioner's Sparman testimony on the grounds that Petitioner did not wish to incriminate himself. (SH at 483-487). This strongly indicates that Petitioner would not have been willing to disclose the confidences to the trial court even if Attorney Ray had urged him to do so. Petitioner's reluctance to disclose the confidences after being convicted of the murders would only have been heightened before the conviction.

Moreover, Petitioner has not established a substantial likelihood that the trial court would have found that the testimony of Crocilla and/or Pugliese was based upon the alleged confidences even if (a) Attorney Ray had advanced such an argument and (b) Petitioner had disclosed the confidences to the trial court. See Harrington, 131 S.Ct. at 792 (holding that, under Strickland, the " likelihood of a different result must be substantial, not just conceivable" ).

Crocilla testified at trial that Petitioner told him that he (Petitioner) had stepped on the neck of one of the victims. (T at 1130). At the Sparman hearing, Petitioner denied making this admission to Crocilla and testified that, during a private conversation during Aney's jailhouse visit on March 16, 1994, he asked Aney whether " stepping on a neck" could subject him to criminal liability. (SH at 520). Petitioner suggests that Aney divulged this confidence to Crocilla and was the source of Crocilla's incriminating testimony. (SH at 521). Crocilla reaffirmed at the Sparman hearing that Petitioner told him directly about stepping on the neck of one of the murder victims. (SH at 624).

Although Crocilla's credibility was generally suspect, his testimony on this point was more credible than Petitioner's. In an October 2000 affidavit submitted in support of his first 440 motion, Petitioner stated that he " openly discussed the case" with Crocilla during his pre-trial incarceration. (Exhibit G). Moreover, the testimony established that Crocilla was Petitioner's boss and acted as a mentor and confidante to Petitioner. When asked at the Sparman hearing whether he had conversations with Crocilla about his involvement in the murders, Petitioner answered " Absolutely." (SH at 521). Petitioner also testified that he confided in Crocilla about the murders and that he spoke about the case prior to his arrest while both Aney and Crocilla were present. (SH at 496, 499). Accordingly, this Court finds that, even upon consideration of the Sparman evidence, Petitioner has not established a substantial likelihood (a) that Aney was the source of Crocilla's testimony and (b) that the trial court would have precluded Crocilla from testifying on that basis if Ray had raised the prior representation issue.

Petitioner has likewise not made the requisite showing regarding the testimony of James Pugliese, another Aney client who testified as a rebuttal witness for the prosecution. Again, this argument hinges upon the assumption that Ray could have successfully moved to preclude Pugliese's testimony by citing the fact that Pugliese was represented by Petitioner's former attorney. Petitioner has not offered any support for a per se rule of exclusion under such circumstances and has also not shown that the trial court would have prevented Pugliese from testifying on the grounds that his testimony was based upon confidences revealed by Aney. Certainly no such support exists in the state court records, which is fatal to the claim under AEDPA review.

Page 496

At the Sparman hearing, Petitioner testified that during the March 16, 1994, jailhouse conference with Aney, he told Aney he was concerned that Pugliese might have overheard a conversation Petitioner had with a third party, in which Petitioner discussed his need for a gun. (SH at 539-40). Petitioner then suggests that Aney, using this confidence, reached out to the prosecution and/or Pugliese during Petitioner's trial to make them aware that Pugliese might have valuable testimony to offer against Petitioner. Aney's alleged motivation for this gambit was to gain a favorable disposition for Pugliese, whom he was representing on unrelated drug charges.

This proposition is wholly speculative and, indeed, strains credulity. Petitioner's argument rests upon the supposition that Aney knew about Pugliese's potentially valuable testimony for nearly a year, but waited until four days after the prosecution rested its casein-chief against Petitioner to offer Pugliese's testimony as a rebuttal witness in exchange for leniency with regard to drug charges filed several months prior. Pursuing such a strategy would have risked the possibility that the prosecution would decline to call Pugliese (on the grounds that it was confident in the proof already presented) or that the trial court would preclude the testimony as improper rebuttal.

In contrast, Pugliese offered a credible explanation during his trial testimony regarding how he came to be a rebuttal prosecution witness. After being subpoenaed by Attorney Ray's office as a possible defense witness, Pugliese called Aney to tell him that he had potentially valuable information to offer the prosecution. (TT at 1592-93, 1601-03).

Lastly, Petitioner has not established a substantial likelihood that he would have been acquitted even if Ray had successfully precluded the testimony of Crocilla and Pugliese. Given the overall strength of the prosecution's case (including incriminating statements by Petitioner), it is unlikely the jury would have reached a different result even if it had not heard testimony from Crocilla and/or Pugliese.

Accordingly, this Court finds that, even upon consideration of the Sparman evidence, Petitioner has not established a substantial likelihood that the trial court would have precluded Crocilla or Pugliese from testifying even if Ray had raised the prior representation issue or, in the alternative, that he would have been acquitted if Ray had successfully precluded the testimony of either or both of these witnesses.

However, it should be noted that while Petitioner has not established that the testimony of Crocilla and Pugliese was based upon improperly disclosed client confidences, there may have nevertheless been a violation of professional responsibility by Attorney Aney. See Disciplinary Rule 5-108 of the New York Code of Professional Responsibility. (" [A] lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure . . . [t]hereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client." ).[27]

In this case, there is no question that Attorney Aney appeared as Petitioner's attorney and thereafter represented at least two prosecution witnesses who provided testimony materially adverse to Petitioner's interests. Moreover, Aney himself

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admitted discussing grand jury immunity for Crocilla with the prosecutor just hours after he appeared on Petitioner's behalf at a court hearing and held a jailhouse conference with Petitioner. This Court strongly recommends that this issue be considered by the District Judge in connection with proceedings pursuant to Rule 83.4 of the Local Rules of Practice.

Petitioner also suggests that he is entitled to habeas relief because the trial court and District Attorney failed to comply with their independent duties to investigate and address potential conflicts of interest. This argument likewise lacks merit. There is insufficient evidence that the trial court knew or had reason to know of any potential conflict of interest. This is particularly so, given the trial court's Huntley hearing finding that Petitioner was not represented by Aney or Hobika during the pre-arrest period. Moreover, as discussed above, even if the trial court had inquired, Petitioner has not shown a substantial likelihood that the indictment would have been quashed, that the testimony of Crocilla and/or Pugliese would (or should) have been precluded, or that the conflict bore " a substantial relation to the conduct of his defense." People v. Conte, 71 A.D.3d 1448, 1449, 896 N.Y.S.2d 770, 772 (4th Dep't 2010)(" Although the court failed to conduct that inquiry, we nevertheless conclude that defendant was not denied effective assistance of counsel based on defense counsel's failure to move to withdraw. Defendant has failed to establish that the conflict of interest arising from the prior representation 'affected, ... operated on, or [bore] a substantial relation to the conduct of the defense.'" )(citations omitted).

With regard to the claim that the District Attorney should have brought the alleged conflict of interest to the trial court's attention, this claim was raised for the first time in Petitioner's Sparman hearing summation.[28] The claim is thus time-barred and not properly before this Court. Further, even if this Court was inclined to review the claim on the merits and to conclude that the District Attorney should have brought the conflict issue to the trial court's attention, Petitioner has not shown a substantial likelihood that the outcome of the trial would have been different but for the District Attorney's inaction. In other words, Petitioner has not shown a substantial likelihood that the indictment would have been dismissed, that the testimony would have been precluded if the conflict issue had been raised, or that he would have been acquitted if Crocilla and Pugliese had been barred from testifying. Petitioner has thus not established the requisite prejudice arising from the District Attorney's arguable violation of his disclosure duty. See People v. Harris, 288 A.D.2d 610, 614, 732 N.Y.S.2d 664, 668 (3d Dep't 2001) aff'd, 99 N.Y.2d 202, 783 N.E.2d 502, 753 N.Y.S.2d 437 (2002)(" We also are mindful, however, that the District Attorney, like defense counsel, is under a mandatory affirmative obligation both to recognize the existence of a potential conflict and to alert the court to the facts and circumstances surrounding that potential conflict. . . . While we find inexcusable the District Attorney's failure to bring to light this overlapping representation, we find that it neither affected Albanese's pretrial representation of Harris nor the ultimate trial representation of Harris." )(internal citations omitted).

Page 498

For the foregoing reasons, this Court finds that Petitioner has not satisfied the Strickland standard with respect to his ineffective assistance claim concerning Attorney Ray. This result obtains whether the claim is reviewed with AEDPA deference and limited to the evidence produced in the state courts or de novo and with consideration to the evidence presented at the Sparman hearing. Accordingly, Petitioner is not entitled to habeas relief with regard to this claim.

C. Ground Two -- Brady

Petitioner's second ground for habeas relief alleges that the prosecution withheld crucial exculpatory and impeachment evidence, in violation of its disclosure obligation pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Under Brady v. Maryland, the prosecution is obligated to disclose material evidence that is favorable to the accused. The Supreme Court has held that " there are three components of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued." Id.; see also Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir.2001).

Petitioner's argument in this regard may be divided into two general categories: (a) information and evidence concerning David Benner and (b) information and evidence concerning a third party suspect. This Court will address each category in turn.

1. Disclosure Regarding David Benner

David Benner, Petitioner's accomplice, cooperated with the police prior to Petitioner's arrest and provided highly damaging trial testimony against Petitioner. In support of his Brady claim, Petitioner argues that the prosecution withheld notes from Benner's interviews with the police. In sum, Petitioner suggests that it is implausible to believe, as the prosecution contended, that no notes were taken, given the large number of meetings between Benner and the prosecution.

This claim was raised on direct appeal. (Exhibit A, at p. 67). The Appellate Division rejected the argument, finding " no merit to the contentions that the People failed to disclose Brady material . . . ." Pepe, 689 N.Y.S.2d at 312. Petitioner has not established that this ruling resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Other than the speculation that notes of the Benner interviews would likely have been taken under the circumstances, Petitioner offered no proof to the Appellate Division that the notes actually existed and/or were withheld by the prosecution. Speculation is insufficient to warrant the extraordinary remedy of habeas relief. See Mallet v. Miller, 432 F.Supp.2d 366, 377 (S.D.N.Y. 2006) (" [T]he mere speculation that exculpatory evidence was withheld is insufficient to warrant habeas relief." ) (citing Strickler v. Greene, 527 U.S. 263, 286, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Petitioner also contends that the prosecution violated its Brady obligation by failing to disclose the results of a polygraph test performed on Benner. This argument is without merit as a matter of clearly-established

Page 499

law. See Wood v. Bartholomew, 516 U.S. 1, 6, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995)(" The information at issue here, then- the results of a polygraph examination of one of the witnesses-is not 'evidence' at all. Disclosure of the polygraph results, then, could have had no direct effect on the outcome of trial, because respondent could have made no mention of them either during argument or while questioning witnesses." ).

Lastly, Petitioner suggests possible manipulation of Benner's arrest record. As discussed above, Benner cooperated with the police and facilitated the March 11, 1994 recording of a conversation with Petitioner, in which Petitioner made incriminating statements ( e.g. he admitted burning evidence and reminded Benner that the shooting was " just business" ). According to Benner, his cooperation with the police was voluntary and he was not arrested for the murders until March 15, 1994 ( i.e. after he recorded the conversation with Petitioner). (TT at 585). The arrest report is consistent with Benner's testimony as to the date of the arrest. However, Petitioner argues that the arrest report was intentionally altered to change the actual date of arrest (March 7th) to March 15th, to cover up the fact that Benner was under arrest when he recorded Petitoner. This argument was advanced in support of Petitioner's second 440 motion and was rejected by the County Court. (Exhibit L).

The County Court cited CPL § 440.30 (4)(b) in support of its decision and noted that Petitioner's claim was supported only by " counsel's conclusory assertion that the arrest report had been intentionally altered to conceal the true arrest date of the witness . . . ." Section 440.30 (4)(b) of the New York Criminal Procedure Law gives the trial court discretion to deny 440 relief when the motion is " based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts."

There is a split of authority within the Second Circuit as to whether denial of a motion pursuant to CPL § 440.30(4) is an " independent and adequate" state procedural bar to federal habeas corpus review. Compare Williams v. McGinnis, No. 04-CV-1005, 2006 WL 1317041, at *10 (E.D.N.Y. May 15, 2006); Marsh v. Ricks, No. 02 Civ. 3449, 2003 WL 145564, at *6-7 & n. 7 (S.D.N.Y. Jan. 17, 2003); Roberts v. Scully, 875 F.Supp. 182, 192-93 n. 9 (S.D.N.Y.1995) (all holding that denial under § 440.30(4)(b) due to inadequacy of petitioner's papers would be an independent and adequate state law ground) with Edwards v. Mazzuca, No. 00 Civ. 2290, 2007 WL 2994449, at *15 (S.D.N.Y. Oct. 15, 2007)(finding that denial pursuant to § 440.30(4)(b) was a decision on the merits subject to habeas review). This Court previously adopted the view that a § 440.30 (4)(b) denial is not a procedural bar. See Gonzalez-Pena v. Herbert, 369 F.Supp.2d 376, 388-89 (W.D.N.Y.2005).

The question of procedural default need not be resolved in this case, however, because Petitioner's claim fails on the merits. The suggestion that the apparent alteration of the arrest report was a deliberate attempt to conceal the true date of Benner's arrest (as opposed to a typographical correction) is wholly speculative and lacking in evidentiary support. Habeas relief cannot be granted on the basis of " unsubstantiated conclusions, opinions, or speculation." Headley v. Ercole, No. 07-CV-979, 2010 WL 3808685, at *8 n.4 (N.D.N.Y. Sep't 22, 2010)(citing Wood, 516 U.S. at 8)(holding that courts should not grant " habeas relief on the basis of little more than speculation with slight support" ).

Page 500

3. Disclosure Regarding Third Party Suspect

An October 1993 report prepared by Cayuga County Deputy Sheriff John Lamphere contains the following information: on October 7, 1993, at approximately 9:34 in the evening, Deputy Lamphere received a telephone call from Michael Yarema, a former student. Yarema advised that he had learned of a double homicide in Utica, indicated that he knew John Zajac (one of the victims), and that a friend of Yarema's (identified as " Jason" ) had information concerning the murder. " Jason" was then placed on the phone and spoke with Lamphere. According to " Jason," he was present at a Utica bar approximately six weeks prior to the murders and observed a confrontation between John Zajac and a drug dealer named Tony " Rosario" (" Jason" was uncertain as to the spelling of " Tony's" last name). According to " Jason," Tony accused Zajac of having an affair with his wife and told Zajac that he would be in " big trouble" if the affair continued. Deputy Sheriff Lamphere's report indicates that he advised the Utica Police Department of the foregoing both verbally and in writing. (See Exhibit H to Petition, Docket No. 1).

It is not clear whether any follow-up investigation was conducted by the Utica Police Department or whether the District Attorney's office was apprised of the Lamphere report. In any event, there appears to be no question but that Petitioner and his counsel were not provided with the Lamphere report or any information concerning its contents prior to trial. Petitioner argues that the prosecution had either actual or constructive possession of the Lamphere report and violated its Brady obligations by failing to disclose it.

This claim was raised in Petitioner's second 440 motion and rejected by the County Court. (Exhibit L). In a detailed ruling, the County Court explained that any non-disclosure concerning the Lamphere report was harmless error because the evidence of possible third-party culpability was too remote and speculative to have been admissible at trial in any event. (Exhibit L, at p. 5-8).

In sum, the County Court found that the probative value of " Jason's" statement would have been outweighed by the risk of delay, prejudice, and jury confusion. In addition, the Court noted the strong evidence adduced a trial contradicting any suggestion that a third party committed the murders and persuasively establishing that Petitioner was present at the murder scene and participated in the crime (e.g. Petitioner's own statements to the police and Benner concerning the events in questions). (Exhibit L, at p. 5-8).[29]

Petitioner has not established that the state court's ruling resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See Wade v. Mantello, 333 F.3d 51, 60 (2d Cir. 2003)( " That a third party may have borne animus towards the victim, standing alone, does little to establish that the third party committed the crime." ); Hughes v. Phillips, 457 F.Supp.2d 343, 360 (S.D.N.Y. 2006)(" As the Supreme Court stated, there is never a 'real' Brady violation unless the non-disclosure was so serious that there is a reasonable

Page 501

probability that the suppressed evidence would have produced a different verdict." )(citing Strickler v. Greene, 527 U.S. 263, 281, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

D. Ground Three -- Ineffective Assistance (Failure to Investigate)

In his third and final ground, Petitioner argues that Attorney Ray was ineffective for failing to investigate certain forensic irregularities involving the testimony of David Benner. Specifically, Petitioner argues that (a) Ray should have consulted with a crime scene reconstruction expert and (b) that, if Ray had done so, he could have provided the jury with an expert opinion to the effect that Benner's testimony concerning the sequence of events was physically impossible.

At trial, Benner testified that he traveled with Petitioner to the North Utica Dry Cleaners on the night of October 7, 1993. Benner claimed that he remained in the vehicle upon their arrival at the dry cleaners, reclined in the passenger seat. (T at 493). According to Benner, he saw Petitioner open the back door to the dry cleaners and allow two men to enter through the door (one of whom Benner identified as John Zajac). (T at 496-97). Benner testified that as the other men entered the dry cleaners, Petitioner used his left hand to hold open the door and his right hand to shoot the two men. (T at 497-500).

In October of 2000, Petitioner obtained an affidavit from William Sullivan, who identified himself as the owner of Forensic Consulting Services. (Exhibit I to Docket No. 1). In sum, Sullivan opined that a forensic analysis of the crime scene revealed " significant irregularities" in Benner's testimony. To wit, according to Sullivan, the exterior lighting and size/location of the door frame made it virtually impossible for Benner to observe what he says he observed from a reclined position in the passenger seat of a parked vehicle. (Id. at ¶ 3-5).

Petitioner raised this argument in support of his first 440 motion. (Exhibit G). The County Court denied the motion, but did not specifically address this claim. (Exhibit H) Respondent suggests that the court was referring to this claim when it concluded that " CPL 440 motions that rely upon allegations which are speculative or conclusory do not warrant hearings or vacature of conviction." (Exhibit H, at p. 5). However, Petitioner's claim is neither speculative nor conclusory. Indeed, it is rather specific and supported by an affidavit from a purported expert. As such, this Court is not inclined to conclude that the 440 court adjudicated this claim on the merits. Determination of this question is not necessary, however, because Petitioner's claim fails under either AEDPA or de novo scrutiny.

First, Petitioner has not provided any authority for the proposition that Ray's failure to consult with a forensic event reconstruction expert under these circumstances was objectively unreasonable or that the trial court would have permitted Mr. Sullivan (or a like expert) to testify at trial. Indeed, Mr. Sullivan's affidavit offers opinions on questions of sense perception that are typically within the lay purview of the jury ( e.g. whether a witness's testimony was credible considering distances and lighting conditions). " 'Where an expert would only marginally assist the jury in its role as fact finder, an attorney's decision not to call an expert is more likely to fall within the bounds of reasonable performance and less likely to prejudice the defendant.'" Massaro v. United States, No. 97 Civ.2971 MGC, 2004 WL 2251679, at *4 (S.D.N.Y. Oct. 5, 2004) (quoting United States v. Aliotta,

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No. 97 Cr. 311, 1998 WL 43015, at *3 (S.D.N.Y. Feb. 3, 1998)).

Second, Attorney Ray engaged in extended and effective cross-examination of Benner during the trial. (TT at 585-684). The cross-examination included questions designed to undermine Benner's credibility based upon the physical conditions and lighting. (TT at 639-651).

Third, Petitioner has not established a substantial likelihood that the jury would have acquitted him even if Ray had successfully offered the testimony of a forensic expert. Indeed, it is quite possible the jury did not believe Benner's rather incredible claim that he remained reclined in the vehicle during the shooting. A finding that Benner understated his role in the murders would not necessarily lead to an acquittal, particularly given the additional evidence of Petitioner's guilt (including Crocilla's testimony about the disposal of evidence and Petitioner's admissions concerning his actions in connection with the shootings and the cover-up). The jury quite reasonably could have concluded that Benner was not entirely truthful about his location during the shooting, but that he was nevertheless telling the truth when he testified that Petitioner was the shooter. For these reasons, this Court finds that Petitioner is not entitled to habeas relief as to this claim.

IV. CONCLUSION

For the reasons stated above, this Court recommends that Vincent Pepe's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied, and that his petition be dismissed. As outlined above, the scope of this Court's habeas review was substantially impacted by its interpretation of a very recent Supreme Court decision, Cullen v. Pinholster, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).[30] As such, if the District Court adopts this Court's interpretation of that decision and the recommendation that habeas be denied, it is further recommended that a certificate of appealability be issued. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705-06, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (holding that " to obtain a certificate of appealability a prisoner must 'demonstrat[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'" ) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003)).

This Court also recommends that the Chief Judge institute proceedings in the Northern District of New York pursuant to Rule 83.4 of the Local Rules of Practice and refer this matter to the Appellate Division, Fourth Department concerning possible attorney misconduct on the part of Attorney Joseph Hobika, Jr. and George F. Aney. While this Court is constrained by the applicable law to find that Petitioner is not entitled to habeas relief and to recommend denial of the Petition on that basis, there is a sufficient evidentiary basis to conclude that Aney and/or Hobika simultaneously represented Petitioner and

Page 503

prosecution witnesses and offered testimony at the Sparman hearing that was knowingly false. Likewise, there is strong reason to question the circumstances under which Attorney Ray's affirmation was prepared. Lastly, it appears Attorney Aney may have violated the applicable rules of ethics by representing prosecution witnesses at Petitioner's trial after appearing as Petitioner's counsel, discussing the case with him during a jailhouse visit, and providing him legal advice.

The Clerk of the Court shall provide a copy of the Sparman hearing transcript and this Report and Recommendation to the Chief Judge.

V. ORDERS

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report & Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report & Recommendation to all parties.

It is further ordered that the Clerk shall provide a copy of the Sparman hearing transcript and this Report and Recommendation to the Chief Judge for review pursuant to Rule 83.4 of the Local Rules of Practice.

ANY OBJECTIONS to this Report & Recommendation must be filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this Report & Recommendation in accordance with 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, as well as NDNY Local Rule 72.1(c).

FAILURE TO FILE OBJECTIONS TO THIS REPORT & RECOMMENDATION WITHIN THE SPECIFIED TIME, OR TO REQUEST AN EXTENSION OF TIME TO FILE OBJECTIONS, WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT ORDER BY THE DISTRICT COURT ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN.

Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d. Cir. 1995); Wesolek v. Canadair, Ltd., 838 F.2d 55 (2d Cir. 1988); see also 28 U.S.C. § 636(b)(1), Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure, and NDNY Local Rule 72.1(c).

Please also note that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Paterson-Leitch Co. v. Massachusetts Municipal Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).

SO ORDERED.


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