The opinion of the court was delivered by: Cogan, District Judge.
MEMORANDUM DECISION AND ORDER
By Memorandum Decision and Order entered December 14, 2012, I analyzed the claims raised in petitioner's habeas corpus petition brought pursuant to 28 U.S.C. § 2254. Kelly v. Griffin, No. 12 Civ. 3384 (BMC), 2012 WL 6569769 (E.D.N.Y. Dec. 14, 2012) (the "December Order"). Although familiarity with the December Order is assumed, it can be summarized as follows.
First, review of petitioner's Fourth Amendment challenge to the state courts' holding that an eyewitness had an independent basis for identifying petitioner at trial, notwithstanding suppression of the witness's lineup identification of him (the "Fourth Amendment claim"), appeared to be barred for two reasons: (a) Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037 (1976), does not permit review of Fourth Amendment claims on federal habeas corpus;*fn1 and (b) although petitioner had obtained leave to appeal that claim (along with others) from and to the New York Court of Appeals, it had not been briefed in that Court. Its abandonment, the December Order stated, suggested that it should be deemed exhausted but procedurally barred from federal habeas corpus review. December Order, at *3.
Second, petitioner's claim that the jury had improperly been allowed to deliberate with one of its members absent for a few minutes (the "Jury Deliberation claim") was procedurally barred because no objection had been raised at trial, and the Appellate Division had deemed it unpreserved. December Order, at *6.
Third, the Appellate Division had also held that petitioner's challenge to the constitutionality of his sentence as a persistent violent felony offender pursuant to New York Penal Law § 70.08 (the "§ 70.08 claim") under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), was unpreserved, and thus my review was procedurally barred. December Order, at *6. In addition, the Second Circuit had previously rejected the same challenge to § 70.08. See Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010).
Fourth, the proper disposition of petitioner's claim of ineffective assistance of trial counsel (the "§ 440.10 claim") appeared to be to deem it exhausted but procedurally barred, because although petitioner had brought a pro se challenge under New York Crim. Proc. Law § 440.10 based on the claim, he had not sought leave to appeal the denial of his claim to the Appellate Division, and the time to do so appeared to have passed. December Order, at *6-7.
I did not enter a final ruling on any of these points except the § 70.08 claim. As to the others, I afforded petitioner an opportunity to show cause why I should not rule in the manner indicated, as he had not addressed these points in his petition. Petitioner responded to the December Order as follows:
(1) As to the Fourth Amendment claim, petitioner argued (a) that he did not receive a full and fair hearing in the state court and, thus, review was not precluded by Stone v. Powell; and (b) that the Court should stay and abate his petition pending his filing and exhaustion of a coram nobis motion in the Appellate Division, in which he intended to argue that his appellate counsel was ineffective for abandoning the Fourth Amendment point in his brief to the New York Court of Appeals;
(2) As to his claim of ineffective assistance of trial counsel, petitioner submitted a letter from the Appellate Division showing that he had, in fact, moved for leave to appeal the denial of his § 440.10 motion, and that the motion had been calendared for December 28, 2012.
Petitioner did not further address his Jury Deliberation claim or his New York Penal Law § 70.08 claim. Those claims are therefore denied for the reasons stated in the December Order. The two remaining claims are disposed of as follows.
I. The Fourth Amendment (Independent Source) Claim
By letter dated March 15, 2013, petitioner filed in this Court a copy of the coram nobis petition that he was concurrently prosecuting in the Appellate Division. Because petitioner is asking for a stay and abatement of these proceedings pending disposition of his coram nobis petition, the addition of the new and unexhausted ineffective assistance of appellate counsel claim might suggest that petitioner now has a "mixed petition" subjecting the case to evaluation under Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528 (2005). However, petitioner, as part of his submissions in this proceeding, has included a letter that he had received from his appellate counsel at the time of the proceedings before the New York Court of Appeals. In it, appellate counsel explained that notwithstanding the Court of Appeals' failure to specify the issues on which it was granting leave to appeal, the Court of Appeals could not hear the Fourth Amendment claim, and he was therefore not going to brief it:
When we were in the Appellate Division, I also argued that, at the independent source hearing, the prosecution failed to prove that Wang had a basis independent of the tainted lineup identification, for making a potential in-court identification. However, because that argument was "fact" based, it could not be made in the Court of Appeals. Except in a capital murder case, the Court of Appeals has no power to overturn a lower court's factual determination.
Although not phrased in a precisely accurate manner, counsel's position was essentially correct, and this Court's December Order was in error insofar as it found petitioner's Fourth Amendment claim unexhausted. The lower state courts' determination that there was an independent source for the witness (Wang) to identify petitioner notwithstanding the suppressed lineup was not technically a question of fact; it was a mixed question of law and fact. But as to mixed questions of law and fact, especially in the Fourth Amendment context (where they frequently arise), the New York Court of Appeals has consistently held that, like questions of fact, it has no power of review unless there is no evidence in the record to support the lower courts' conclusion. See People v. Vandover, 20 N.Y.3d 235, 239, 958 N.Y.S.2d 83 (2012) ("The conclusion that no probable cause existed to arrest defendant is a mixed question of law and fact for which there is support in the record and is therefore otherwise unreviewable") (internal citations omitted); People v. Omowale, 18 N.Y.3d 825, 827, 938 N.Y.S.2d 831 (2011) ("The Appellate Division's determination that the police reasonably could have concluded that a weapon was located in defendant's vehicle . . . was a mixed question of law and fact for which there is support in the record. The court's determination is therefore beyond our further review.") (internal citations omitted); People v. Williams, 17 N.Y.3d 834, 835, 930 N.Y.S.2d 530 (2011) ("The reasonableness of a seizure, the existence of probable cause or reasonable suspicion, the classification of a detention as an arrest and the attenuation of evidence from ...