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00 Civ. 2306 (AJP)
July 21, 2000
OPINION AND ORDER
Anna Hernandez filed this timely pro se habeas corpus petition, challenging her July 15, 1997 conviction for first degree assault and aggravated criminal contempt, for which she was sentenced as a second felony offender to a determinate term of 13 years on the assault conviction and a concurrent term of two and one-half to five years on the contempt conviction. Hernandez's petition raises two claims: (1) her trial counsel was ineffective for failing to call the complainant as a witness at trial (Pet. ¶ 12(A)), and (2) her conviction was based on insufficient evidence in violation of her due process rights under the Fifth and Fourteenth Amendments (Pet. ¶ 12(B); see page 5 below).
For the reasons set forth below, because Hernandez has not exhausted her ineffective assistance of counsel claim in State court, and still can bring a state collateral proceeding to raise that issue, her petition is dismissed without prejudice as to that claim; her sufficiency of the evidence claim is denied as unexhausted and procedurally barred.
FACTS Trial Evidence
Since the Court is dismissing Hernandez's habeas petition on procedural grounds, only a brief statement of the facts follows.
On February 23, 1997, Hernandez and her domestic partner Gina Villanueva were in their apartment on 230 West 131st Street in Manhattan, where they apparently lived together despite the fact that Hernandez was under an order of protection to stay away from Villanueva due to a previous assault. (Tr. 229-30, 291-92, 469-81.) At about 3:00 a.m., while Villanueva was lying in bed, Hernandez splattered nail polish remover containing acetone on Villanueva's shirt and face, and then ignited the nail polish remover. (Tr. 210-23, 260-70, 321-35, 367-70, 416-17, 456-60.) Villanueva's shirt burst into flames and burned Villanueva's face and body. (Tr. 326, 367-70, 456-60.)
Firefighters, police officers, and EMS personnel arrived at the apartment and found Villanueva repeatedly "screaming, quite loudly and it sounded like she was in pain that she was on fire and that was burning." (Tr. 213; see also Tr. 213-17, 220-22, 267, 271, 323-24.) Villanueva was also yelling, "Why did she do this to me?," and she told an EMS technician: "She threw nail polish remover on me, she burned me, she lit me up." (Tr. 416; see also id. at 216, 222, 267, 272, 323-24, 328.) When an officer asked her who had done this to her, Villanueva replied, "Anna Hernandez." (Tr. 218, 267-70, 283-84.)
As Villanueva was taken out of the apartment to the hospital, she saw Hernandez by the elevator and identified Hernandez as the person who had burned her. (Tr. 218-19, 267-68, 283-84, 333-35, 346-48.) Villanueva's daughter, who was standing nearby, motioned with her eyes toward Hernandez and said, "She was there." (Tr. 346-48.) The police arrested Hernandez. (Tr. 222, 224.)
When Villanueva arrived at the hospital three minutes later, she told two police officers that Hernandez "had stood over her with the nail polish remover[,] sprinkled it on her and set her on fire." (Tr. 219-22.) Villanueva sustained second degree burns on twelve percent of her body, including on her face, ears, hand, forearm, abdomen, and right leg. (Tr. 363-65, 374-75.)
Verdict and Sentence
The jury found Hernandez guilty of first degree assault and aggravated criminal contempt. (Tr. 638-40.) On July 15, 1997, Hernandez was sentenced, as a second felony offender, to a determinate term of 13 years on the assault conviction and a concurrent term of two and one-half to five years on the contempt conviction. (6/15/97 Sentence Tr. 641, 642-43, 657.)
Hernandez's Direct Appeal
Represented by counsel, Hernandez appealed to the First Department, arguing only that the trial court erred in denying her request for a missing witness charge concerning Villanueva's failure to testify at trial. (Ex. A: Hernandez 1st Dep't Br. at 19-34.)
References to Exhibits are to those attached to the Affirmation of Assistant Attorney General Edward Rodriguez.
In the course of bringing her missing witness charge claim, Hernandez stated in her First Department brief: "The failure to give such [a missing witness] instruction could not possibly have been harmless here, where the issues of which complainant possessed personal knowledge encompassed virtually the prosecution's entire case, a case built primarily on complainant's excited utterances." (Id. at 31.) She also stated in support of this line of reasoning: "the prosecution's case rested primarily on the excited statements that Villanueva uttered, but which were untested by cross-examination and were not corroborated in any substantial way." (Id. at 34.)
On December 1, 1998, the First Department affirmed Hernandez's conviction, holding:
The court properly rejected defendant's request for a missing witness charge concerning the victim, defendant's former domestic partner, since "she was unavailable based upon her refusal to testify . . . and was not under the control of the People such that she could be expected to give testimony favorable to the prosecution." . . . In any event, defendant was given ample latitude on summation to comment on the victim's absence, and there was overwhelming evidence of defendant's guilt, including the victim's excited utterances at the scene implicating defendant.
People v. Hernandez, 256 A.D.2d 18, 19, 680 N.Y.S.2d 27, 28 (1st Dep't 1998).
Represented by counsel, Hernandez sought leave to appeal to the New York Court of Appeals on January 14, 1999. (Ex. D: 1/14/99 Leave to Appeal Letter.) In her initial leave letter and in a supplemental letter dated March 1, 1999, Hernandez argued only that the trial court erred in not giving a missing witness charge. (Id.; Ex. F: 3/1/99 Supplemental Leave Letter.) On March 10, 1999, the New York Court of Appeals denied leave to appeal. People v. Hernandez, 93 N.Y.2d 874, 689 N.Y.S.2d 436 (1999).
Hernandez's Federal Habeas Petition
Hernandez's present federal habeas petition is dated February 20, 2000 and was received by the Court's Pro Se Office on February 24, 2000. Hernandez's petition alleges that: (1) her trial counsel was ineffective for failing to call the complainant as a witness at trial (Pet. ¶ 12(A)), and (2) her conviction was based on circumstantial evidence, hearsay, and conflicting testimony (Pet. ¶ 12(B)), which the Court construes as an insufficiency of the evidence claim.
ANALYSIS HERNANDEZ'S HABEAS PETITION IS DISMISSED WITHOUT PREJUDICE BECAUSE HER INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM IS UNEXHAUSTED AND CAN STILL BE BROUGHT IN STATE COURT VIA A CPL § 440.10 MOTION A. Hernandez's Ineffective Assistance of Trial Counsel Habeas Claim is UnexhaustedHernandez alleges that her trial counsel afforded her ineffective assistance by failing to call the complainant as a witness at trial. (Pet ¶ 12(A).) Hernandez failed to raise her ineffective assistance of trial counsel claim on direct appeal or via a CPL § 440.10 collateral attack in the trial court. (See Ex. B: Hernandez 1st Dep't Br. at 19-34; Ex. D: 1/14/99 Leave to Appeal Letter; Pet. ¶ 10.)
The New York Court of Appeals has stated that "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of [trial] counsel be bottomed on an evidentiary exploration by collateral or postconviction proceeding brought under CPL 440.10," since ineffectiveness of counsel is usually not demonstrable on the trial record. People v. Brown, 45 N.Y.2d 852, 853-54, 410 N.Y.S.2d 287, 287 (1978); see, e.g., Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (claim based on "a matter clearly outside of the trial record — allegations that his attorney conducted his defense under the influence of drugs" should be raised in a § 440.10 motion, which is the "preferred avenue for inadequate representation claims in New York"); Otero v. Stinson, 51 F. Supp.2d 415, 417-420 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334, at *4 (S.D.N.Y. Oct. 7, 1998); Walker v. Miller, 959 F. Supp. 638, 643-44 (S.D.N.Y. 1997) (McKenna, D.J. Peck, M.J.) (finding that state court remedies were not exhausted where § 440.10 motion did not advance all of the ineffective assistance of trial counsel allegations raised in habeas petitions); Ehinger v. Miller, 928 F. Supp. 291, 294 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.) ("Ineffective assistance of trial counsel motions . . ., ordinarily are made by a CPL § 440.10 motion before the trial court, or direct appeal where trial counsel's alleged incompetence could be determined from the existing record."); Mercado v. Senkowski, 736 F. Supp. 28, 29 (E.D.N Y 1990); Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N.Y. 1987) ("The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level."); United States ex rel. LaSalle v. Smith, 632 F. Supp. 602, 603 (E.D.N.Y. 1986).
See also, e.g., People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 55 (1988); People v. Love, 57 N.Y.2d 998, 1000, 457 N.Y.S.2d 238, 239 (1982); People v. Brown, 28 N.Y.2d 282, 286-87, 321 N.Y.S.2d 573, 577 (1971); People v. Rosa, 682 N.Y.S.2d 845 (1st Dep't Jan. 19, 1999) (ineffective assistance of trial counsel claim "would require expansion of the record by way of a CPL 440.10 motion"); People v. Figueroa, 679 N.Y.S.2d 304 (1st Dep't Oct. 29, 1998) ("Since defendant failed to raise his contention of ineffective assistance of counsel in his motion to vacate the judgment of conviction pursuant to CPL 440.10, the claim is not reviewable on direct appeal since it is based on facts dehors the record and trial counsel has had no opportunity to explain her trial tactics."); People v. Arroyo, 678 N.Y.S.2d 722 (1st Dep't Oct. 6, 1998), ("Defendant, by failing to make a CPL 440.10 motion alleging ineffective assistance of trial counsel, has not provided an adequate record upon which to review his claim."), aff'd, 93 N.Y.2d 990, 695 N.Y.S.2d 537 (1999); People v. Frias, 673 N.Y.S.2d 416, 417 (1st Dep't May 21, 1998); People v. Thornton, 250 A.D.2d 398, 671 N.Y.S.2d 654 (1st Dep't May 7, 1998); People v. Petty, 204 A.D.2d 125, 612 N.Y.S.2d 8, 9 (1st Dept. 1994) ("Since defendant failed to seek post judgment relief pursuant to CPL Article 440, he has not presented us with an adequate record to review his claim of ineffective assistance of trial counsel."); People v. Steele, 135 A.D.2d 673, 673, 522 N.Y.S.2d 248, 249 (2d Dep't 1987) ("As we have previously held, the appropriate vehicle by which to obtain review of the defendant's claim of ineffective assistance of counsel is through the commencement of a proceeding pursuant to CPL article 440."); People v. Harris, 109 A.D.2d 351, 360, 491 N.Y.S.2d 678, 687 (2d Dep't 1985).
The trial record here does not reveal why Hernandez's trial counsel did not call the complainant as a witness. Since Hernandez never filed a CPL § 440.10 motion alleging ineffective assistance of trial counsel, and since there is no time limit for filing such a motion, that remedy appears to still be available to her in state court. E.g., Rodriguez v. People, 00 Civ. 1399, 2000 WL 962748 at *2 (S.D.N.Y. July 11, 2000) (Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d at 419. Hernandez's ineffective assistance claim, therefore, clearly is unexhausted. See, e.g., Rodriguez v. People, 2000 WL 962748 at *2; Otero v. Stinson, 51 F. Supp.2d at 419.
CPL 440.10(1) provides: "At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that . . . [t]he judgment was obtained in violation of a right of the defendant under the constitution . . . of the United States." N Y CPL § 440.10(1)(h) (emphasis added).
As this Court stated in Otero, "[i]n any event, the `Court believes that any uncertainty as to this is best resolved by allowing the state courts to decide the claim first.'" Id. at 419 n. 3 (quoting Walker v. Miller, 959 F. Supp. at 644 n. 6).
Hernandez's second claim — insufficiency of the evidence — is both unexhausted and procedurally barred because Hernandez did not, although she was required to do so, raise that claim on direct appeal. See, e.g., Bond v. Walker, 68 F. Supp.2d 287, 294-95 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.) (where petitioner could have but failed to raise sufficiency of the evidence claim on direct appeal, he cannot raise claim in collateral attack pursuant to CPL § 440.10; claim is therefore unexhausted and procedurally defaulted) ( cases cited therein), cert. of appealability granted, 2000 WL 460592 at *1 (S.D.N.Y. April 19, 2000) (McKenna, D.J.). Accordingly, Hernandez's sufficiency of the evidence claim is denied.
B. Effect of the AEDPA
The Antiterrorism and Effective Death Penalty Act ("AEDPA") gives the Court discretion to deny on the merits habeas petitions containing unexhausted claims, but it does not require the Court to determine unexhausted claims. See 28 U.S.C. § 2254(b)(2). Thus, 28 U.S.C. § 2254 now states, in relevant part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State;
. . .
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.28 U.S.C. § 2254 (b)(1)-(2).
Section 2254(b)(2), however, "does not contain the standard for determining when a court should dismiss a petition on the merits instead of insisting on complete exhaustion." Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied, 522 U.S. 844, 118 S.Ct. 126 (1997). Neither the Supreme Court nor the Second Circuit has established what standard a district court should use to determine when to dismiss a petition on the merits rather than requiring complete exhaustion.
Accord, e.g., Rodriguez v. People, 00 Civ. 1399, 2000 WL 962748 at * 3 (S.D.N.Y. July 11, 2000) (Peck, M.J.); Oleva v. Bintz, 00 Civ. 1398, 2000 WL 378034 at *3 (S.D.N.Y. April 12, 2000) (Peck, M.J.), report rec. adopted, slip op. at 1-2 (S.D.N.Y. May 5, 2000) (Wood, D.J.); Orraca v. Walker, 53 F. Supp.2d 605, 610 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Morris v. Reynolds, 48 F. Supp.2d 379, 381 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 420 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Rivera v. New York State Parole Div., 98 Civ. 7555, 1999 WL 246752 at *3 (S.D.N Y April 1, 1999) (Rakoff, D.J. Peck, M.J.); Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *3 n. 3 (S.D.N.Y. Oct. 7, 1998); Lum v. Penarosa, 2 F. Supp.2d 1291, 1292-93 (D. Haw. 1998); Cowans v. Artuz, 14 F. Supp.2d 503, 506 (S.D.N.Y. 1998) (Preska, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *3 (S.D.N.Y. May 19, 1998) (Cote, D.J. Peck, M.J.); Gaylor v. Harrelson, 962 F. Supp. 1498, 1499 (N.D.Ga. April 3, 1997).
The Court agrees with the decision in Duarte v. Hershberger, 947 F. Supp. 146 (D.N.J. 1996), where the court explained:
Pursuant to the 1996 AEDPA amendments, however, the Court may exercise discretion to hear and deny petitioner's non-exhausted claim; the total exhaustion rule is no longer binding. . . . The Court, however, declines to exercise the discretion to hear and dismiss petitioner's application in this case.
By refusing to exercise the discretion provided under section [2254(b)], this Court endorses the rationale of the "total exhaustion rule" and continues to furnish state appellate courts the initial opportunity to correct trial court decisions. Moreover, the refusal to exercise discretion here does not conflict with the intent of Congress. In fact, enforcing the "total exhaustion rule" in this context will "encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition." Rose [v. Lundy], 455 U.S. [509] at 520, 102 S.Ct. [1198] at 1204 [(1982)]. This will serve to avoid piecemeal litigation and eventually decrease the burden on federal courts. Id.
Finally, the Court notes that applying the "total exhaustion rule" in cases such as this one does not unduly prejudice petitioners. Those who misunderstand the requirement and submit unacceptable "mixed petitions" may resubmit their application pending either the removal of the unexhausted claim, or exhaustion of the offending claim at the state level.
Duarte v. Hershberger, 947 F. Supp. at 150. Duarte does not provide a standard, but makes clear that even under the AEDPA, the federal courts usually should defer to the state courts on unexhausted habeas claims.
Accord, e.g., Rodriguez v. People, 00 Civ. 1399, 2000 WL 962748 at * 3 (S.D.N.Y. July 11, 2000) (Peck, M.J.); Oleva v. Bintz, 2000 WL 378034 at *2; Orraca v. Walker, 53 F. Supp.2d at 611; Morris v. Reynolds, 48 F. Supp.2d at 384; Otero v. Stinson, 51 F. Supp.2d at 421; Rivera v. New York State Parole Div., 1999 WL 246752 at *3-4; Fennell v. Artuz, 14 F. Supp.2d at 506; Fennell v. Artuz, 14 F. Supp.2d 374, 379 (S.D.N.Y. 1998) (Preska, D.J. Peck, M.J.); Benitez v. Senkowski, 1998 WL 265245 at *3-4; Espinal v. Walker, 97 Civ. 3187, 1998 WL 151273 at *4 (S.D.N Y March 27, 1998) (Patterson, D.J. Peck, M.J.); Diaz v. Coombe, 1997 WL 529608 at *4; Fluellen v. Walker, 975 F. Supp. 565, 568 (S.D.N.Y. 1997) (Wood, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. at 116; Walker v. Miller, 959 F. Supp. at 642.
The Court notes that several district judges in this Circuit have expressed the test as whether the unexhausted claim is "patently frivolous." E.g., Turner v. Senkowski, No. 97-CV-653, 1998 WL 912011 at *4 (W.D.N.Y. Nov. 23, 1998); Youngblood v. Greiner, 97 Civ. 3289, 1998 WL 720681 at *6 (S.D.N.Y. Oct. 13, 1998); Colon v. Johnson, 19 F. Supp.2d 112, 120, 122 (S.D.N Y 1998); Hogan v. Ward, 998 F. Supp. 290, 293 (W.D.N.Y. 1998); Edkin v. Travis, 969 F. Supp. 139, 142 n. 1 (W.D.N.Y. 1997); Rodriguez v. Miller, 96 Civ. 4723, 1997 WL 599388 at *3 (S.D.N Y Sept. 29, 1997); Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *3 n. 5 (S.D.N.Y. May 29, 1997); see also, e.g., Terrence v. Senkowski, 97 Civ. 3242, 1999 WL 301690 at *5 n. 4 (S.D.N.Y. May 12, 1999) (exercising discretion to dismiss unexhausted claims under § 2254(b) where "all of petitioner's claims lack merit," citing Youngblood's "patently frivolous" language); Cuadrado v. Stinson, 992 F. Supp. 685, 687 (S.D.N.Y. 1998) (it is perhaps appropriate for court to decide unexhausted claim on merits "where a petition was `patently frivolous,' . . . but this is not such a case. The Court believes that it is still the best policy to `allow the State an initial opportunity to pass upon and correct alleged violations of prisoners' federal rights.'"); Brown v. Miller, 97 Civ. 1874, 1998 WL 91081 at *2 (S.D.N Y March 3, 1998) (Sotomayor, D.J.) (same).
Other courts, relying on the pre-AEDPA Supreme Court decision in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671 (1987), express the test as whether "`"it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,"'" in which case the Court should dismiss the unexhausted claim on the merits (or rather the clear lack thereof). Jones v. Morton, 195 F.3d 153, 156 n. 2 (3d Cir. 1999); see also, e.g., Gassaway v. Cody, 132 F.3d 42 (table), 1997 WL 767560 at *2 n. 1 (10th Cir. Dec. 15, 1997) (the AEDPA codified Granberry's holding that the merits of an unexhausted claim can be reached where "`the interests of comity and federalism will be better served by addressing the merits forthwith'"), cert. denied, 525 U.S. 1076, 119 S.Ct. 813 (1999); Hoxsie v. Kerby, 108 F.3d at 1242-43; Lum v. Penarosa, 2 F. Supp.2d at 1293 ("This Court agrees with the Tenth Circuit's sound analysis, that when a habeas petition is clearly without merit, the interests of comity and federalism, which underpin the exhaustion doctrine, are better served if the federal court addresses the merits pursuant to § 2254(b)(2), rather than sending the petitioner back to the state courts on a futile quest to exhaust ultimately meritless claims."); Gaylor v. Harrelson, 962 F. Supp. at 1500 ("the test is whether it is `perfectly clear' that the petitioner has failed to state `even a colorable claim.' . . . [This] requires only a cursory examination of the petitioner's claims. If this brief examination arouses the slightest suspicion that the claims have merit, dismissal without prejudice is appropriate to allow the State court an opportunity to consider the claims."); Delaney v. Commissioner of Dept. of Mental Health, No. C.A. 92-12025, 92-12026, 1998 WL 113852 at *5 (D.Mass. March 5, 1998) ("under both the old habeas statute, see Granberry, . . . and the new habeas statute, 28 U.S.C. § 2254(b)(2), a court may deny an unexhausted petition on the merits if it clearly does not raise a colorable federal claim"); United States ex rel. Walton v. Gilmore, No. 96 C 2375, 1997 WL 51703 at *5 (N.D.Ill. Feb. 4, 1997) (dismissal without prejudice granted where "nothing on the face of the petition suggests that [petitioner's] claims are frivolous").
The Court here need not decide whether the "patently frivolous" or some other standard is appropriate to use to determine when to consider the merits of unexhausted claims pursuant to § 2254(b). Suffice it to say that in this case, where Hernandez's only viable claim — her ineffective assistance of trial counsel claim — has not been addressed by the State courts and the record on it can benefit from further development, the Court believes it appropriate to decline to exercise its discretion to decide Hernandez's ineffective assistance claim on the merits. This best comports with the pre-AEDPA rule of total exhaustion adopted by the Supreme Court in Rose v. Lundy, 455 U.S. 509, 510, 518-20, 102 S.Ct. 1198, 1199, 1203-04 (1982), and the rationale of Duarte v. Hershberger, discussed above.
Whatever the stated standard used by other decisions, the Court strongly suspects that the real standard being used by the federal courts is whether it is easier to dismiss as a mixed petition or easier to reach the merits of the unexhausted claim. Thus, for example, where the issue of whether the claim is exhausted is somewhat questionable, but the lack of the merit of the claim is easily shown, it may be more appropriate for the Court to reach the merits. See, e.g., Rodriguez v. People, 2000 WL 962748 at *4 n. 7; Oleva v. Bintz, 2000 WL 378034 at *4 n. 10; Orraca v. Walker, 58 F. Supp.2d at 612 n. 9; Morris v. Reynolds, 48 F. Supp.2d at 385 n. 8; Otero v. Stinson, 51 F. Supp.2d at 422 n. 8; Rivera v. New York State Parole Div., 1999 WL 246752 at *4 n. 4; Cowans v. Artuz, 14 F. Supp.2d at 507 n. 5; Benitez v. Senkowski, 1998 WL 265245 at *4 n. 5.
See, e.g., Rodriguez v. People, 2000 WL 962748 at * 4 n. 8; Oleva v. Bintz, 2000 WL 378034; Oppenheimer v. Kelly, 97 Civ. 3035, 1999 WL 435159 at *3-4 n. 1 (S.D.N.Y. June 24, 1999) ("The Court notes . . . that although it has the option to deny petitioner's claims on the merits [under § 2254(b)], it would not be appropriate to do so here because of the undeveloped factual record with respect to petitioner's ineffective assistance claim."); Orraca v. Walker, 53 F. Supp.2d at 612 (declining to decide petition on merits where three claims had not been addressed by state courts and parties would need to make record as to some of the claims); Benitez v. Senkowski, 1998 WL 265245 at *4 (declining to decide petition on merits where one of the claims — that evidence did not prove petitioner's guilt beyond a reasonable doubt — was unexhausted; "it is particularly appropriate for the state courts to review such a fact-based claim in the first instance"); see also, e.g., Morris v. Reynolds, 48 F. Supp.2d at 385 (declining to exercise power to decide petition on merits where three of four claims not presented to any state appellate court); Rivera v. New York State Parole Div., 1999 WL 246752 at *4 (declining to decide petition on merits where petitioner asserted a single claim that was not presented to state appellate courts); Cowans v. Artuz, 14 F. Supp.2d at 507 (declining to decide petition on merits where none of petitioner's five habeas claims had been presented to state courts); Fennell v. Artuz, 14 F. Supp.2d at 379.
The Court notes that Hernandez should not be heard to complain about the Court's decision as to her ineffective assistance claim, since under the AEDPA, this Court can reach the merits as to unexhausted claims only if it denies them. See 28 U.S.C. § 2254 (b)(2) (1998) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
CONCLUSION
For the reasons set forth above, Hernandez's federal habeas petition is dismissed without prejudice as to her ineffective assistance claim, which has not been exhausted and can still be raised in state court, but Hernandez's sufficiency of the evidence claim is denied as unexhausted and procedurally barred. The Court warns Hernandez that when she returns to State court to exhaust the ineffective assistance claim, any federal habeas petition that she brings thereafter will be subject to the AEDPA's one-year statute of limitations, as tolled by the time state collateral motions are pending and as tolled by the pendency of this petition. Walker v. Artuz, No. 98-2572, 2000 WL 309980 at *2-4 (2d Cir. March 27, 2000); Oleva v. Bintz, 00 Civ. 1398, 2000 WL 378034 at *4 (S.D.N.Y. April 12, 2000) (Peck, M.J.). Hernandez, therefore, would be well advised to immediately file a CPL § 440.10 motion in state court raising her ineffective assistance of trial counsel claim, to toll the AEDPA limitations period. See, e.g., Oleva v. Bintz, 00 Civ. 1398, 2000 WL 378034 at *4 (S.D.N.Y. April 12, 2000) (Peck, M.J.).
Since Hernandez has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2258.
SO ORDERED.