Otero v. Eisenschmidt

Full title: RICHARD OTERO, Petitioner, v. THOMAS C. EISENSCHMIDT, Respondent

Court: United States District Court, S.D. New York

Date published: Nov 8, 2004

01 Civ. 2562 (HB) (AJP) (S.D.N.Y. Nov. 8, 2004)

Opinion

01 Civ. 2562 (HB) (AJP).

November 8, 2004

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Harold Baer, Jr., United States District Judge:

Petitioner Richard Otero, represented by counsel, seeks a writ of habeas corpus from his conviction, on March 24, 1993, of two counts of attempted first degree murder, three counts of attempted second degree murder, two counts of aggravated assault upon a police officer, first and second degree robbery, and weapons and related counts, and sentence to an aggregate prison term of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶ 14.) See Otero v. Stinson, 51 F. Supp. 2d 415, 416 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.) (dismissing Otero's prior habeas petition as a "mixed" petition containing exhausted and unexhausted claims); People v. Otero, 225 A.D.2d 489, 489-90, 639 N.Y.S.2d 819, 820 (1st Dep't), appeal denied, 88 N.Y.2d 968, 647 N.Y.S.2d 722 (1996).

Otero's habeas petition raises five grounds: (1) violation of his Fifth Amendment privilege against self-incrimination when he was cross-examined at trial about his failure to inform the police of his trial explanation (Pet. ¶ 12(A)); (2) deprivation of his right to a fair trial when his alibi witness was cross-examined about her failure to volunteer exculpatory information to the police which she offered at trial (Pet. ¶¶ 12(A)(6)-(7)); (3) deprivation of his right to a fair trial when the trial court marshaled only evidence helpful to the prosecution about the show-up identification of Otero (Pet. ¶ 12(B));¹ (4) ineffective assistance of trial counsel (Pet. ¶ 12(C)); and (5) ineffective assistance of appellate counsel (Pet. ¶ 12(D)).²

1 Otero's heading for this ground is "Petitioner's due process right [sic] were violated when the conviction was obtained by use of evidence pursuant to an unlawful arrest." (Pet. ¶ 12(B).) However, the substance of this ground contends that the court's jury instruction about the show-up identification was one-sided and therefore improper. This decision reviews the substance, not the title, of this ground of the petition.

2 Otero includes a fifth point: "Identification [p]rocedure pursuant to which police made arrangement to have the complainant present when petitioner was arrested, was highly suggestive." (Pet. ¶ 12(A)(i).) This point appears not to be an independent ground for relief, but rather that Otero is claiming the prosecutor's cross-examination of Otero and his alibi witness "cannot be declared harmless." (Pet. ¶ 12(A)(i)(14).) This ground was not raised at trial nor in Otero's direct appeal in state court and therefore would be unexhausted and procedurally barred if considered a separate habeas ground.

FACTS

The Prosecution Case at Trial

On Thursday, June 11, 1992, Gervasio Rivera³ was working in the basement of a New York City Housing Authority building in Manhattan, the Wagner Houses on Twenty Paladino Avenue, which employed him as a cleaning person. (G. Rivera: Trial Transcript ["Tr."] 55-56, 130.)⁴ That morning, Gervasio picked up his paycheck in the amount of $696.02 and cashed it at the bank, as was his usual practice on pay-day. (G. Rivera: Tr. 57-59, 62, 137-38.) Gervasio bought lunch for $4 and returned to work with $692 in his pants pocket. (G. Rivera,: Tr. 62-64, 139-40, 142-43.) Gervasio had no other money on him at that time. (G. Rivera: Tr. 63.)

3 To distinguish the victim, Gervasio Rivera, from Otero's co-defendant, Carlos Rivera, they will be referred to by first name. No disrespect is intended.

4 The Trial Transcript is Docket Numbers 21 and 23 in his prior habeas case, 97 Civ. 2794.

At approximately 2:55 p.m., two men followed Gervasio into the compactor room in the basement. (G. Rivera: Tr. 70-71, 79-80, 144-45.) The two men, identified at trial as petitioner Richard Otero and co-defendant Carlos Rivera, brandished silver pistols, threatened to kill Gervasio if he moved and ordered him to give them his money. (G. Rivera: Tr. 80-87; Colon: Tr. 213.) Gervasio was facing the defendants, even though they had approached him from behind. (G. Rivera: Tr. 87-88.) At this point, Otero was wearing a blue shirt. (G. Rivera: Tr. 87.)

With guns pointed at Gervasio, Otero took the money that was in Gervasio's pants pocket and put it inside his own pocket. (G. Rivera: Tr. 88-90.) Otero hit Gervasio, knocking him to the ground. (G. Rivera: Tr. 92-93.) Otero and Carlos fled the room. (G. Rivera: Tr. 94-96.) Gervasio went out into the hall where he told a co-worker, Rafael Colon, who had heard the commotion from the next room and had gone into the hallway with a shovel to see what had happened (Colon: Tr. 213-14), that he had "been mugged" and that the perpetrators had left and were "running away." (G. Rivera: Tr. 98-100.) Gervasio and Colon pursued Otero and Carlos as they ran away from the building. (G. Rivera: Tr. 100.) Gervasio, Colon and another co-worker, Carlos Hernandez, whom Colon recruited to help in the pursuit, chased the two men west on Paladino and then north up First Avenue to the Willis Avenue Bridge. (G. Rivera: Tr. 102-03; Colon: Tr. 214, 216-17, 225-26.)

Detectives Michael Hernandez and Victor Harris were in an unmarked van on 124th Street and First Avenue as part of an unrelated buy and bust operation when they saw the chase occurring as the men crossed First Avenue.⁵ (Heranandez: Tr. 291-93, 360-61; Harris: Tr. 501-02.) Co-defendant Carlos Rivera turned around, pulled out his silver gun and pointed it in Gervasio's direction. (Hernandez: Tr. 293, 295-96, 365.) Once Detective Hernandez saw the gun, he told Detective Harris what he had seen, pulled out his shield so that it hung outside his bulletproof vest, and "took [off] in the van after" the two defendants. (Hernandez: Tr. 293, 297-98; Harris: Tr. 581.) The detectives described Otero as wearing a blue shirt and dark colored sweat pants at this point. (Hernandez: Tr. 296, 374; Harris: Tr. 527, 531, 536-37.)

5 Detectives Hernandez and Harris were in charge of guarding in their van anyone arrested as a result of the buy and bust operation; at the time that the chase crossed their path, they had one arrestee in their custody. (Hernandez: Tr. 274-78, 291-92; Harris: Tr. 492, 499-500.)
Detective Hernandez was wearing civilian clothes with a bulletproof vest over his shirt and his shield around his neck on a chain, tucked into his vest. (Hernandez: Tr. 277-78, 284.) Detective Harris was wearing civilian clothes with his "police issue bullet proof vest" over his clothing and his shield on the outside of his vest. (Harris: Tr. 493-94, 497; Hernandez: Tr. 278-79.)

Detectives Hernandez and Harris drove up First Avenue to the foot of the Willis Avenue Bridge, parked the van on the sidewalk and jumped out "yelling police, police" and "police, stop, police stop." (Hernandez: Tr. 299, 470-72, 478; Harris: Tr. 503, 506, 566.) Gervasio was already at the foot of the Bridge, behind a pillar, when they arrived. (G. Rivera: Tr. 103-05.) Otero and Carlos were on the stairs leading to the Bridge. (G. Rivera: Tr. 108, 191-93; Hernandez: Tr. 293; Harris: Tr. 503-04.) Both Otero and Carlos had silver guns in their hands, pointed in the direction of Gervasio and Detectives Hernandez and Harris. (G. Rivera: Tr. 109-10; Colon: Tr. 220; Hernandez: Tr. 293-94, 299, 306-07; Harris: Tr. 503-04, 509.) Detective Harris repeated approximately six times "police, stop, police stop." (Colon: Tr. 219, 234; Harris: Tr. 506-08.) Upon seeing the guns drawn, Detective Hernandez and Detective Harris, their own guns drawn, took cover behind the pillar where Gervasio was standing. (Colon: Tr. 220; Hernandez: Tr. 294, 299, 306-07, 368, 453, 458-59, 478; Harris: Tr. 504.) Gervasio explained to the Detectives that the men on the Bridge stairs had mugged him at gunpoint. (G. Rivera: Tr. 106; Hernandez: Tr. 479.)⁶ Gervasio testified that the police then yelled, in a "loud voice," for the defendants on the Bridge to "stop right there, police." (G. Rivera: Tr. 106-08; Harris: Tr. 507.) According to Gervasio, Carlos fired his gun, and immediately thereafter Gervasio heard four shots fired. (G. Rivera: Tr. 109-09A.) Detective Hernandez heard four shots fired, while Detective Harris "heard three to four shots." (Hernandez: Tr. 299, 308, 453, 458; Harris: Tr. 504, 509, 521, 573.)⁷

6 Detective Hernandez testified that this exchange occurred after the shots were fired. (Hernandez: Tr. 309-10.)

7 Rafael Colon was standing at the corner of 126th street, approximately 60 feet behind Gervasio, when the shots rang out, and Carlos Hernandez was near the police van. (G. Rivera: Tr. 116; Colon: Tr. 220-21.)

Once the shots were fired, Otero and Carlos turned and ran up the Bridge stairs. (G. Rivera: Tr. 116; Hernandez: Tr. 294, 299, 306, 309; Harris: Tr. 521.) Detective Harris radioed in that shots had been fired and raced up the stairs in pursuit. (Harris: Tr. 504, 544; G. Rivera: Tr. 116; Hernandez: Tr. 309, 311.) Detective Harris testified that he never lost sight of the two men once he started chasing them up the steps. (Harris: Tr. 522.)

Detective Hernandez, after telling Gervasio to wait for other officers to pick him up, drove the van in pursuit of the suspects. (Hernandez: Tr. 309-10.) Otero, who was running in front, darted ahead as he saw Detective Hernandez coming. (Hernandez: Tr. 311.) Detective Hernandez cut-off Carlos with the van, jumped out and arrested him. (Hernandez: Tr. 285-86, 311, 314, 374.) He seized a gun from Carlos' waistband. (Hernandez: Tr. 311, 315-16, 347, 451; Harris: Tr. 524.)⁸ It was approximately 3:05 p.m. when the arrest took place. (Hernandez: Tr. 287; Harris: Tr. 490-91.) Detective Harris arrived and told Detective Hernandez that he "got him," allowing Detective Hernandez to set off again in the van to pursue Otero, who he observed going to the "Bruckner side of the Bridge." (Hernandez: Tr. 311, 316, 382; Harris: Tr. 524.)

8 The gun that was recovered from Carlos had three "live rounds" — bullets that had not yet been fired — and one "spent round" — a bullet that had been fired. (Hernandez: Tr. 348-49, 455-56.)

Detectives Walter Johnson and Daisy Ortiz⁹ arrived on the Bridge with Gervasio, whom they had picked up at the foot of the Bridge. (G. Rivera: Tr. 117-18; Ortiz: Tr. 615-16; Johnson: Tr. 651-52.) Detective Harris explained to them that they should go help Detective Hernandez, who was chasing the second suspect (Otero) but did not have a radio.¹⁰ (Harris: Tr. 525; Ortiz: Tr. 617, 632; Johnson: Tr. 652.) Gervasio exited the van and identified Carlos as "the guy." (G. Rivera: Tr. 117-19; Harris: Tr. 525, 562.) Less than five minutes had passed since the shooting. (G. Rivera: Tr. 119-20.)

9 Detectives Ortiz and Johnson, who had been working the same buy and bust as Detectives Harris and Hernandez, received a radio communication from Detective Harris that there was a chase in progress and one man had a gun and, shortly thereafter, that shots had been fired. (Ortiz: Tr. 628-29; Johnson: Tr. 649-50.) Detective Ortiz responded to the area where she last knew Detective Harris to have been, which was 124th Street and First Avenue. (Ortiz: Tr. 629.) When neither Detective Harris nor Detective Hernandez were there, Detectives Ortiz and Johnson questioned civilians in the area as to what, if anything, they had seen. (Johnson: Tr. 650-51.) They were directed toward the Willis Avenue Bridge. On their way to the Bridge they picked up Gervasio. (Johnson: Tr. 651.) They arrived at the Bridge at the point where Detective Harris was guarding the newly-arrested Carlos. (Ortiz: Tr. 614-17; Johnson: Tr. 652.)

10 Gervasio's co-workers, Colon and Hernandez, were not taken in the police van; Colon returned to work. (G. Rivera: Tr. 157-58; Colon: Tr. 222.)

Meanwhile, Detective Hernandez, in the van, pursued Otero towards Bruckner Boulevard. (Hernandez: Tr. 316.) He watched Otero jump "over to a dirt side behind the gas station on the Bronx side. [He] saw him climb the fence going behind the fence and he climbed one fence and went towards another fence, started climbing." (Hernandez: Tr. 316-17.) Detective Hernandez stopped chasing Otero because he still had a prisoner in his van from the unrelated buy and bust and he did not have a radio. (Hernandez: Tr. 317, 321-22.) Instead, Detective Hernandez stopped at a Sunoco gas station and asked the attendant to call 911 for back-up. (Hernandez: Tr. 317-19, 321-22, 432.) The attendant told Detective Hernandez that there was a man with a gun behind the gas station, but when Detective Hernandez turned around to look he saw the prisoner he had been guarding in his van running down the block, so Detective Hernandez ran after the prisoner and brought him back into custody. (Hernandez: Tr. 322-23, 292, 294, 399, 432.) By the time Detective Hernandez had re-apprehended the prisoner, other police units had arrived. (Hernandez: Tr. 327, 399, 432.)¹¹

11 Detective Hernandez left his van with the prisoner inside with one of the responding uniformed police officers. (Hernandez: Tr. 323, 432.)

Meanwhile, Detectives Ortiz and Johnson and Officer Terence McGee continued looking for Otero. Officer McGee was driving toward Bruckner Boulevard in response to the radio call that police officers were pursuing suspects. (McGee: Tr. 595-97.) As Officer McGee was heading east on Bruckner Boulevard near the Merit self-service gas station, he "observed an individual . . . running from the rear of the gas station towards the sidewalk." (McGee: Tr. 598.) Officer McGee began to pull over and when the individual, identified in court as Otero (McGee: Tr. 598-99), looked in Officer McGee's direction and saw that he had stopped his police car, Otero "immediately leaned on the driver's side window of the vehicle that was parked there getting gas." (McGee: Tr. 598; Harris: Tr. 638.) Otero leaned into the window as Officer McGee stopped his car and looked back at Officer McGee who was then getting out of his car, and then Otero "turned back and looked in towards the driver of that vehicle." (McGee: Tr. 600.)

At the same time, Detective Ortiz noticed "a person that [she] classified as a possible perpetrator" at the Merit gas station. (Ortiz: Tr. 619; Johnson: Tr. 654.) The person she noticed was standing at the gas pumps, leaning over a car, near the driver's side window. (Ortiz: Tr. 619-20; Johnson: Tr. 654-55.) Detective Ortiz's partner, Detective Johnson, spoke to someone who was pumping gas into the car, who pointed out Otero and said that he did not know him even though Otero was leaning on his car. (Johnson: Tr. 656.) Officers McGee and Ryan moved in close to Otero so that he would not be able to get away. (Johnson: Tr. 656.) Officer McGee had Otero move away from the driver's side window of the car he was leaning on. (McGee: Tr. 600-01.)

Detectives Ortiz and Johnson and Officer McGee noticed that Otero was "wet with perspiration," "very sweaty," had "scratches on his arms," and appeared nervous. (Ortiz: Tr. 620-21; Johnson: Tr. 654-55; McGee: Tr. 599-601.) Both Detectives Ortiz and Johnson described Otero as wearing a black tank top and blue shorts and black sneakers. (Ortiz: Tr. 621; Johnson: Tr. 654; Harris: Tr. 527, 538-40.) Officer McGee and Detective Ortiz frisked Otero for weapons, and Detective Ortiz radioed for Detective Hernandez to come to the Merit gas station. (McGee: Tr. 606; Ortiz: Tr. 621-22, 641-42; Hernandez: Tr. 323-24, 401-02.)

When Detective Hernandez arrived at the Merit gas station, he saw Otero flanked by police officers and identified him. (Hernandez: Tr. 324-25, 405; Johnson: Tr. 657.) At approximately 3:15 p.m., Otero was arrested. (Hernandez: Tr. 288-89; Harris: Tr. 491; Ortiz: Tr. 622, 642-43; Johnson: Tr. 657.) Detective Hernandez told the officers that Otero was wearing a different shirt than what he had seen him wearing before and that Otero had had a gun with him even though no gun was found on Otero. (Hernandez: Tr. 325-26, 328, 405; Harris: Tr. 527, 538.) Detective Hernandez also testified that Otero was sweating. (Hernandez: Tr. 326-27, 416.)

$692 were seized from Otero and a blue t-shirt was recovered from a dumpster at the rear of the gas station. (Hernandez: Tr. 327-28, 342, 345-56; Ortiz: Tr. 622-24, 643; Johnson: Tr. 657, 659.) A bag of marijuana was recovered from Otero's pocket. (Ortriz: Tr. 644.) No gun was recovered from Otero or from the surrounding area. (Hernandez: Tr. 328, 350, 430-31.)

Another police van brought Gervasio to the Merit gas station where he, without any direction to do so, walked up to a van, looked through the window, and identified both Otero and co-defendant Carlos Rivera to Detective Hernandez as "the guys" who "had mugged" him. (G. Rivera: Tr. 120-23, 149-53; Harris: Tr. 525-26, 562-63.)¹² Approximately fifteen minutes had elapsed between the time of the shooting and the time that Gervasio identified both defendants in the van. (G. Rivera: Tr. 123.)¹³

12 Detective Harris testified that both Gervasio and co-defendant Carlos were put into the same van to go from the Bridge to the Merit gas station. (Harris: Tr. 526, 562-63.)

13 Gervasio saw Otero and Carlos again at the police station as they passed the front desk. (G. Rivera: Tr. 155-56.) Gervasio was never asked to view them in a lineup. (G. Rivera: Tr. 156-57.)

Gervasio testified at trial that he had "no doubt" that Otero and Carlos were the people who had mugged and shot at him. (G. Rivera: Tr. 124-25, 195-97.)

Defense Cross Examination of the Prosecution's Witnesses

On cross-examination, Gervasio, described Otero as having a "little" mustache, "very big" lips, short, curly black hair, and wearing a light blue shirt, white sneakers, light jeans. (G. Rivera: Tr. 145-48.) This testimony differed from the detectives' who described Otero's hair style as being a "high-low" style — short on the sides and high on top. (See Hernandez: Tr. 326; Harris: Tr. 583.)

Also on cross, defense counsel questioned Gervasio about the number of police officers he came in contact with before identifying Otero; Gervasio explained that at the Merit gas station, no police officers had told him to get out of the van nor to go over to the van in which Otero, in handcuffs, was seated. (G. Rivera: Tr. 149-54.)

On cross-examination by co-defendant Carlos Rivera's counsel, Gervasio testified that Carlos fired one shot directly at Gervasio before the detectives came over to him. (G. Rivera: Tr. 170-71.) Gervasio further testified that he was not sure who fired the subsequent shots and that the detectives were there with him when that first shot was fired. (G. Rivera: Tr. 172, 178-79.) However, co-defense counsel brought out that Gervasio had testified to the Grand Jury that it was his co-workers who were with him when that first shot was fired. (G. Rivera: Tr. 172-74.) On redirect, the prosecution used the Grand Jury testimony to show that Gervasio had also told the Grand Jury that the detectives were there when the shots were fired. (G. Rivera: Tr. 179-81, 186-88.)

On the cross examination of Detective Hernandez, defense counsel brought out that, at a prior proceeding (i.e., the suppression hearing), Detective Hernandez had testified that Otero was wearing a blue shirt and dark shorts. (Hernandez: Tr. 376-77, 379, 406-09, 436.) In an attempt to clarify, since he had testified at trial that Otero was wearing pants, Detective Hernandez said that he had gone through the case in his mind and with other officers since the prior hearing and now remembered that Otero had been wearing jogging pants during the chase, but shorts at the time of his arrest. (Hernandez: Tr. 379, 438-39.)

On cross-examination of Detective Harris, defensecounsel questioned his opportunity to have observed Otero during the chase, questioned the reliability of his identification of the blue shirt found in the dumpster as Otero's, questioned why he took no notes about Otero's appearance and asked whether he had had any conversations with other officers following the incident, to which Detective Harris replied that he had not since a few weeks after the incident. (Harris: Tr. 533, 536, 537, 540, 548-52.)

The Defense Case

Defense counsel's motions to dismiss counts six and seven of the indictment, which charged attempted murder of co-workers Colon and Hernandez were granted, with no real opposition from the prosecution. (Tr. 677-79.)

Otero testified and presented an alibi defense, asserting that he was not one of the men who robbed Gervasio and not one of the men on the steps to the Willis Avenue Bridge where the shooting took place:

As of June 11, 1992, Otero was living with his girlfriend Lisa Butler and their daughter at 345 Cypress Avenue in the Bronx. (Butler: Tr. 743, 745, 763; Otero: Tr. 851, 853.) On the morning of June 11, 1992, Otero got dressed in a pair of shorts and a black tank top, took $700 that Lisa Butler had given to him, and went to his mother's house. (Otero: Tr. 854, 856-57; Butler: Tr. 765-66, 775, 793.) The $700 was from an approximately $2,000 tax refund Butler had received a month before. (Butler: Tr. 750-51, 765-67, 777, 793; Otero: Tr. 856.) Otero took the $700 to pay for two storage rooms that he and Butler had rented on June 6, 1992 at a storage company on Bruckner Boulevard and Brown Place. (Otero: Tr. 858, 860; Butler: Tr. 753-54, 758, 761, 765-67.) Otero and Butler rented two storage rooms which they planned to use for six or seven months. (Butler: Tr. 760, 804; Otero: Tr. 858, 861, 864.) The rent for both the rooms for the first four months was $51.¹⁴ Otero planned to pay for six or seven months in advance, using the $700. (Otero: Tr. 865, 898-99; Butler: Tr. 768, 775-76, 793, 804-05, 811-14.)

14 $51 for the first room, and $1 for the second room, a rate given as part of a deal they were given for renting two rooms. (Otero: Tr. 861-64; but see Butler: Tr. 802-03 (rate was $61 for one room and $1 for the second room for the first four months).) After four months, the rent would go up to $70 for the room that he would have been paying $1 for, and the other room would remain at $51 per month. (Otero: Tr. 864; Butler: Tr. 803.)

Otero's mother lived at 141st Street between Cypress and Jackson Avenue, around the corner from Otero's and Butler's apartment. (Otero: Tr. 857.) Otero went from his apartment, with the $700, to his mother's apartment to check in on her and to make a phone call since he did not have a phone in his apartment. (Otero: Tr. 866-68.) Otero stayed at his mother's apartment until approximately 2:30 p.m., when he went downstairs and stood in front of the building for about ten minutes. (Otero: Tr. 869-70.)

At approximately 2:40 p.m., Latasha Jones came to the building. (Otero: Tr. 870; Jones: 691-94, 698, 700-02, 706.) Jones had known Otero and his family for over twenty years; Otero and Jones' brother went to junior high school together and Otero's brother was Jones' god-brother.¹⁵ (Jones: Tr. 690, 693-94.) Their families were close friends. (Jones: Tr. 695-96.) Otero and Jones spoke for a couple of minutes, then she asked Otero if his brother was upstairs and proceeded to go upstairs. (Otero: Tr. 870; Jones: Tr. 693-94, 700-01, 705.) Otero stood there for about two more minutes, then he walked to a store on 138th street and bought "a forty ounce of beer, a bag of potato chips and a [fifty] cent Philly blunt" cigar. (Otero: Tr. 870-71.) Otero went to 137th Street between Cypress Avenue and St. Ann's and bought a nickel bag of marijuana. (Otero: Tr. 871.) He drank his beer and then cut through the walkway of the Millbrook Projects, walking toward St. Ann's Avenue and 135th Street, where he ran into Regina Haddock. (Otero: Tr. 872-74.)

15 Jones' brother baptized Otero's brother and Otero's son. (Jones: Tr. 690.)

Haddock lived in the Millbrook Projects and was the mother of Otero's brother's child. (Otero: Tr. 874; Haddock: Tr. 720, 722, 728.) By this time it was approximately 2:40 p.m. or 2:45 p.m., according to Regina Haddock. (Haddock: Tr. 722-23, 735-36.) Otero stopped and talked with Regina Haddock and played with his nephew in the park in the middle of the projects for ten to twelve minutes. (Otero: Tr. 874; Haddock: Tr.723-26, 632-33.) Otero left his nephew and Regina Haddock and continued on through St. Ann's Avenue to Bruckner Boulevard to go to the storage room. (Otero: Tr. 874-75; Haddock: Tr. 624-25.)

Otero testified that, as he was walking along Bruckner Boulevard, near the Merit gas station, a police car drove up to him. (Otero: Tr. 875.) The police "came out [of] their car with their guns up," and told Otero to "put [his] hands up, [and] threw [him] on top of a car that was parked inside the gas station getting gas." (Otero: Tr. 875.) Otero testified that:

I put my hands up in the air, asked the officer what seems to be the problem. They just told me to shut my — they roughed me up, threw me on the ground. They handcuffed me. They also questioned me where was the gun at. . . . I told them I didn't have no gun. What seems to be the problem, officer?

(Otero: Tr. 876, 882.) Otero was left standing in handcuffs for a while during which time Detective Daisy Ortiz patted him down and searched him. (Otero: Tr. 877.) She took from his pocket the money and marijuana that he had been carrying. (Otero: Tr. 877.)

Otero testified that he had $692 in his pocket at the time of his arrest, after using $8 of the $700 to buy the groceries and marijuana.¹⁶ (Otero: Tr. 878.) Otero was placed inside Detective Ortiz's van for fifteen or twenty minutes. (Otero: Tr. 879.) Co-defendant Carlos Rivera was brought into the same van. (Otero: Tr. 880.) While Otero sat in the van, someone came over to the van to look at him. (Ortiz: Tr. 879.)

16 Otero testified that he paid 25 cents for the bag of potato chips, $2.25 for the forty ounce beer, 50 cents for the blunt cigar and $5 for the bag of marijuana, adding up to $8. (Otero: Tr. 894-96.)

Otero further testified that he was not at or near First Avenue and the Willis Avenue Bridge and 124th Street on June 11, 1992 at around 3:00 p.m., nor was he carrying a gun that day, nor did he rob or shoot at anybody on that day. (Otero: Tr. 881, 884.)

Otero testified that he was sweating when the police stopped him because it was a warm day, he had just finished drinking a beer, and he had been playing with his nephew which got him sweated up. (Otero: Tr. 883, 891.)

Otero denied having worn a blue t-shirt on that day and denied having any scratches or bruises on his arms. (Otero: Tr. 882-84.) The Prosecution's Cross-Examination of Latasha Jones

The prosecution, on cross-examination of Latasha Jones, brought out that Otero's brother, Elvin, contacted Jones a couple of days after Otero was arrested to tell her the news; Jones testified that they discussed the case, and she asked Elvin what and when it had happened. (Jones: Tr. 697.) Jones testified that she mentioned to Otero's brother that she did not understand how Otero could have been arrested since she had seen him in front of the building on that day, near in time to the arrest. (Jones: Tr. 697.) The cross-examination focused on impeaching Jones' credibility as to whether she really knew exactly what time she saw Otero on June 11th, 1992. (Jones: Tr. 694-715.) On re-cross-examination, the prosecutor asked Jones if she "knew [she] had information [she] thought could have helped him . . ." to which Jones replied "If I could, yes." (Jones: Tr. 717.) The re-cross continued:

Q: And you in fact knew that this — you had this information for months, isn't that correct?

A: Yes.

Q: And you knew how to contact the police, isn't that correct?

(Id.) Co-defendant Carlos Rivera's counsel objected, arguing that "this is not a police state, nobody ever has any obligation to come forward and talk to the police, Judge. This is improper." (Id.) The trial judge overruled the objection and commented that "nobody said she had to do anything." (Id.) The judge asked the prosecutor if "there [was] a question whether she went to the police or the district attorney," to which the prosecutor replied that there had not been such a question yet. (Id.) The judge added: "that's a fair question if she did. There is no legal obligation. That's not the question. No speeches, please." (Id.)

Jones answered that she knew how to contact the police if she needed to. (Jones: Tr. 717-18.) The prosecutor continued:

Q: [Y]ou know where your local precinct is?

A: In my neighborhood, yes.

Q: And yet you had the information that the defendant was with you approximately [twenty] minutes before this robbery and could not have robbed this person, is that correct?

A: Yes.

Q: And you never went to them, did you?

A: No, I had no reason to go to the police.

(Jones: Tr. 718.)

The Prosecution's Cross-Examination of Richard Otero

On cross-examination, the prosecutor questioned petitioner Otero about his conversations with Detectives Ortiz and Johnson at the Merit gas station:

Q: [D]o you remember having a conversation with a Detective David [sic] Ortiz at the time?

. . . .

A: I really didn't have no conversation with Daisy Ortiz. I was already in handcuffs.

Q: Do you remember having a conversation with Detective Walter Johnson when you were stopped?

A: No, I did not have no conversation with Walter Johnson.

Q: Do you remember saying anything to either of them?

A: Nothing.

Q: And isn't it a fact, Mr. Otero, that at the time you were stopped you told them that you were pumping gas?

A: No, I did not tell them that.

Q: Isn't it a fact, Mr. Otero, that at the time you were stopped you told them that you had been at the gas station pumping gas all day?

A: No, I did not tell them that.

. . .

Q: You didn't offer any explanation then to them at the time as to where you were going?

(Otero: Tr. 901-02.) Defense counsel objected, but Otero answered the question:

A: Offered what explanation? I was already in cuffs. I feel I didn't have to explain nothing.

Q: I am talking about immediately when you were stopped, you didn't say anything?

A: Immediately when I was stopped they told me put my hands up in the air. I told them what seems to be the problem. They told me to shut up, so what is there to explain?

Q: Okay, so you didn't offer any explanation of what you were doing in the Merritt [g]as station?

A: All I did —

(Otero: Tr. 902-03.) Defense counsel again objected, but Otero finished his answer to the question: "A: Follow orders when the officers told me, he told me to put my hands up in the air, get against the car and shut up." (Otero: Tr. 903.) The judge explained to the jury that there "is no legal obligation to speak to an officer when somebody is seized. . . ." (Tr. 903.) The judge told the jury that he had allowed "the exploration of this issue for reasons that [he was] not going to discuss now. The whole transaction has been testified about and we can discuss it further." (Id.)

The Prosecution's Rebuttal Case

Detective Walter Johnson testified for the prosecution in rebuttal that when he stopped Otero at the Merit gas station, Otero told him that he worked at the gas station and had been there most of the day. (Johnson: Tr. 912-13, 916-17.) Detective Daisy Ortiz also testified in rebuttal that as she approached Otero at the Merit gas station, he volunteered "something to the effect of what's going on. I have been here all day. I have just been pumping gas." (Ortiz: Tr. 921.)

The Judge's Charge to the Jury on the Identification of Otero

At the pre-charge conference, the judge told counsel that he planned to give "the full identity charge" which would include "a charge that [the jury has] to scrutinize the show-ups." (Colloquy: Tr. 942.) The judge explained in detail what exactly he planned to say to the jury on the issue of the show-up identifications and that he would be using the Criminal Jury Instructions "adopted to [the] trial." (Colloquy: Tr. 942-43.)

The judge began his instructions to the jury by reminding them of the presumption of innocence, that the State had the burden of proving guilt beyond a reasonable doubt, and that each defendant had to be considered separately. (Charge: Tr. 1072-74, 1079, 1095-99.) The judge addressed the general issue of identity in his charge to the jury, instructing that "[i]dentification is a question [of] fact for you [the jury] to decide" (Charge: Tr. 1100) and that the identity of a defendant must be proven beyond a reasonable doubt (Charge: Tr. 1100-01). The judge also instructed the jury on the "paramount" importance of "the reliability of witnesses" and that "the testimony of any witness on the issue of identity should be scrutinized with care." (Charge: Tr. 1101-02.) The judge explained that the "value" of the identification testimony "depends upon the opportunity and the ability of the witness to observe the alleged offenders at the time of the event and to make an accurate identification later." (Charge: Tr. 1102.) Moreover, the judge charged that "[i]t is for you [the jury] to decide how such testimony impresses [you] and how much weight [you] should place upon it." (Id.) The judge continued with his explanation of how the jurors should go about weighing witness credibility in the context of identification testimony. (Charge: Tr. 1102-04.)

The judge also specifically instructed the jury on the issue of the show-up identifications. (Charge: Tr. 1104.) The judge explained that both Gervasio Rivera and Detective Hernandez testified that they identified Otero at the Merit Gas Station. (Charge: Tr. 1105.) The judge explained that the show-up identifications that took place are relevant "to establish that shortly after the commission of the crime while the witness' memory was presumably fresher than at present, that both Gervasio Rivera and Detective Michael Hernandez picked out and identified the defendants at those respective . . . identification procedures." (Charge: Tr. 1106.)

The judge instructed that "a witness' prior identification of a defendant and a show-up type procedure should be scrutinized by [the jury] with care." (Charge: Tr. 1107.) The judge addressed the arguments by each side as to the propriety of the identifications. First the judge explained:

The People contend that such evidence tends to establish that the witnesses in identifying the defendant here in court as the perpetrators and not relying solely on their now possibly stale memory of the perpetrators on the date and time in question.

They are also relying on that chance that they had to identify them right after the or soon after the alleged incidents.

(Charge: Tr. 1107.) On the other hand, the judge explained that the defense was arguing:

among other things, . . . the witnesses were mistaken when they identified them as the perpetrators at those respective locations and . . . partially because of those previous mistakes they are now identifying them here in court, not as the actual perpetrators, but because they made a mis-identification at the scene or shortly thereafter the incident at the Merritt Gas Station. In other words, the defendant is contending that the wrong man is on trial and that witnesses made a mistake at the previous identification procedures at the show-ups.

(Charge: 1107-08.)

The judge reiterated his previous charge that the jury must be "satisfied beyond a reasonable doubt that the defendant is the perpetrator" in order to find either of the defendants guilty. (Charge: Tr. 1108-09.) The judge then proceeded to discuss Otero's alibi defense evidence and the law applicable thereto. (Charge: Tr. 1109-11.)

Defense counsel made no objections to the charge. (See Tr. 1125-26, 1165-66.) Jury Questions During Deliberations

The jury asked several questions during their deliberations regarding the meaning of certain charges. They returned first with one note containing four questions. Their first question asked if "murder in the first degree mean[s] that defendants knew or should have known they were firing at cops?" (Tr. 1172.) The judge answered "yes" and re-read the pertinent element of the crime and offered a hypothetical as further explanation. (Tr. 1172-75.)

The second question asked whether "murder in the second degree mean[s] the defendants were firing at civilians?" (Tr. 1175.) The judge answered "yes" and briefly explained what that meant for each relevant count. (Id.)

The third question from the jury asked "what's the distinction between robbery in the first degree and robbery in the second degree?" (Tr. 1176.) They asked that the distinction be explained in "simple" terms. (Id.) The judge explained that first degree robbery requires "the defendant or another participant [to be] armed with a deadly weapon," whereas second degree robbery requires that "force be utilized" and that "two people [are] involved and they both [are] present at the time of the commission of the alleged robbery." (Tr. 1176-77.)

The fourth question from the jury asked for clarification on first degree reckless endangerment — "does it refer to police in any way?" The judge answered "no." (Tr. 1177.)

The jury returned with two more questions. First, they asked for the difference between "possession of a weapon in the second degree and . . . possession of a weapon in the third degree." (Tr. 1183.) The judge answered by defining each crime using the statutory language, and explaining that second degree involves "the intent to use [a weapon] . . . unlawfully against another" whereas third degree requires "merely possessing a loaded firearm not in one's home or place of business." (Id.)

The jury also asked what is "attempted aggravated assault on a police officer?" (Tr. 1184.) The judge read the definition that he had used in his charge and read each element that the prosecution was required to prove beyond a reasonable doubt, tailoring them to the facts of the case. (Tr. 1184-86.)

In all but two answers (the answer to the fourth question of the first note and the second question in the second note), the trial judge specifically noted to the jurors that he had discussed the questions with the attorneys beforehand. (Tr. 1172, 1175, 1176, 1183.) These discussions were not on the record.

Verdict and Sentence

On February 3, 1993, the jury found petitioner Richard Otero and co-defendant Carlos Rivera guilty of all charges. (Verdict: Tr. 1193-1200.)

On March 24, 1993, the judge sentenced Otero to an aggregate sentence of twenty-five years to life imprisonment. See People v. Otero, 225 A.D.2d 489, 489-90, 639 N.Y.S.2d 819, 820 (1st Dep't), appeal denied, 88 N.Y.2d 968, 647 N.Y.S.2d 722 (1996).¹⁷

Otero's C.P.L. § 330.30 Motion

17 Co-defendant Carlos Rivera's conviction was upheld on appeal by the First Department. See People v. Rivera, 225 A.D.2d 392, 640 N.Y.S.2d 483 (1st Dep't), appeal denied, 88 N.Y.2d 969, 647 N.Y.S.2d 723 (1996).

On March 3, 1993, represented by trial counsel, Otero moved to set aside the jury verdict pursuant to C.P.L. § 330.30(1), on the grounds that "the inconsistent testimony of Detective Hernandez at the [suppression] hearings and at trial irreversibly tainted the decisions denying the motions to suppress and such error, if raised on appeal, would require a reversal of the judgments of conviction herein. . . ." (Dkt. No. 12: State Answer Ex. T: Otero § 330 Motion.)¹⁸ Specifically, Detective Hernandez had testified at the suppression hearing that Otero was wearing a blue shirt and shorts, while at trial, Detective Hernandez testified that Otero was wearing a blue shirt and sweat pants and it was that description that he had given to the police officers who searched for the "perpetrator." (Ex. T: Schwartzberg Aff. at 1-2.) Therefore, according to Otero, the "stop and detention" of Otero was illegal because Otero did not fit Detective Hernandez's description when Otero was stopped. (Id. at 2.) Further, according to Otero's motion, Detective Hernandez's trial testimony "totally undermined" the findings of the suppression hearing. (Id. at 3.) Therefore, on appeal, the appellate court would be unable to review the decision of the suppression hearing because its findings were "invalidated by the subsequent trial testimony." (Id. at 3-4.)

18 Unless otherwise indicated, references to Exhibits are to the Exhibits in the Appendix to the State's Answer in this case, Dkt. No. 12.

On March 23, 1993, the trial judge denied the motion on the grounds that the claims were not preserved at trial through a failure to object. (Ex. A: Otero 1st Dep't Br.: Addendum C: 10/15/03 Justice Andrias Order at C3.) In any event, the judge held that the motion had no merit because the discrepancy in Detective Hernandez' testimony did not concern information on which Detective Ortiz based her seizure of Otero. (Id.) Moreover, the judge found that Detective Ortiz had acted with reasonable suspicion when she stopped Otero, using the information she had obtained from Detective Harris. (Id. at C4.)

Otero's Direct Appeal

Otero's direct appeal to the First Department raised the following issues: (1) improper cross-examination of Otero and a defense witness (Ex. A: Otero 1st Dep't Br. at 26-35); (2) erroneous jury instruction about the identification of Otero in a show-up (id. at 35-38); (3) the second degree attempted murder convictions were redundant of the first degree attempted murder convictions (id. at 39); and (4) adoption of applicable arguments made by co-defendant Carlos Rivera (id. at 3, 40).

The First Department vacated the second degree attempted murder convictions but otherwise affirmed Otero's conviction. People v. Otero, 225 A.D.2d 489, 489-90, 639 N.Y.S.2d 819, 820-21 (1st Dep't 1996). The New York Court of Appeals denied leave to appeal on July 24, 1996. People v. Otero, 88 N.Y.2d 968, 647 N.Y.S.2d 722 (1996).

Otero's First (1997) Federal Habeas Petition

Otero's original federal habeas petition (filed in 97 Civ. 2794) raised two claims: Otero's Fifth Amendment privilege claim (97 Civ. 2794, Dkt. No. 1: Pet. ¶ 12(A)), and erroneous show-up jury charge (id. ¶ 12(B)). By letter dated October 24, 1997, Otero requested that he be allowed to withdraw his habeas corpus petition in order to raise a claim of ineffective assistance of appellate counsel in state court. By order dated December 3, 1997, Magistrate Judge Bernikow advised Otero that if he withdrew his petition, a later petition might be time barred, but granted Otero's application to withdraw his petition unless Otero informed the Court by December 26, 1997 that he did not wish to withdraw his petition. (See 97 Civ. 2794, Dkt. No. 8: 12/3/97 Order.) Otero responded that rather than withdraw his petition, he be allowed to amend it to include an ineffective assistance of appellate counsel claim. (12/9/97 12/31/97 Otero Letters.) By Order dated July 10, 1998, Magistrate Judge Bernikow denied Otero's request on the ground that such an amended petition would be subject to dismissal as a mixed petition since the ineffective assistance of appellate counsel claim was unexhausted. (97 Civ. 2794, Dkt. No. 11: 7/10/98 Order.) However, Magistrate Judge Bernikow allowed Otero to file an amended petition "despite the potential consequences," if he notified the Court by July 31, 1998. (Id.)

Otero's Coram Nobis Application to the First Department

Meanwhile, in October 1997, Otero filed a motion for a writ of error coram nobis in the First Department raising his ineffective assistance of appellate counsel claim. (Ex. I: Otero 10/30/97 Coram Nobis Aff. ¶¶ 4(A) 18-29.) Otero's coram nobis application also appears to have requested relief pursuant to C.P.L. § 440.10, claiming that his trial attorney was ineffective based on his failure to adequately investigate the facts surrounding his case (id. ¶¶ 1(C) 8-13), although Otero also claimed appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness (id. ¶¶ 19, 21, 23, 25, 27, 29). In opposing Otero's coram nobis application, the State noted that "[i]f defendant thereby means now to challenge trial counsel's performance directly, his application must be rejected, for he can only make a motion to vacate judgment in the trial court," citing C.P.L. § 440.10(1). (Ex. J: State 12/97 Coram Nobis Opp. Br. at 14 n. *.)

On March 26, 1998, the First Department denied Otero's coram nobis application "in its entirety," citing People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988), the leading First Depatment decision on ineffective assistance of appellate counsel. (Ex. L: 3/26/98 1st Dep't Order.) People v. Otero, 248 A.D.2d 1033, 671 N.Y.S.2d 575 (table) (1st Dep't 1998).

Otero's Second Amended (1998) Habeas Petition

Otero's second amended federal habeas petition raised the claims in the original habeas petition (97 Civ. 2794, Dkt. No. 12: Am. Pet. ¶¶ 12(A)-(B)), and added claims of ineffective assistance of trial and appellate counsel (Am. Pet. ¶ 12(C)).

On March 19, 1999, my Report and Recommendation recommended dismissal of Otero's amended habeas petition without prejudice as a mixed petition, and Judge Baer adopted my Report and Recommendation on April 27, 1999. Otero v. Stinson, 51 F. Supp. 2d, 415, 415 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.). Otero's ineffective assistance of trial counsel claim was held unexhausted because it had been raised in his coram nobis petition to the First Department, but the trial court is the proper forum in which to raise a C.P.L. § 440.10 motion alleging ineffective assistance of trial counsel. Id. at 417-19. Therefore, "because Otero failed to properly raise this claim in a § 440.10 motion in the trial court, and he still [could] do so, his ineffective assistance of trial counsel claim [was] not exhausted." Id. at 419.

Otero's C.P.L. § 440 Motion

Accordingly, on August 4, 1999, Otero filed in the state trial court a C.P.L. § 440.10 motion alleging ineffective assistance of trial counsel. (Ex. M: 8/4/99 Otero § 440 Motion Papers.) Otero argued that his trial counsel was ineffective because he: (1) failed to investigate "the substance of the mitigating factors of the case"; (2) failed to research the applicable law; (3) failed to request the trial court clarify the charges for which the jury, during its deliberations, had sent a note asking the court for such clarification;¹⁹ and (4) failed to request that the court charge the jury on the lesser included offense of attempted first degree assault for attempted first degree murder. (Ex. M: 8/4/99 Otero Aff. ¶¶ 6-9.)

19 The charges that Otero argues should have been clarified by his trial counsel were: attempted first degree murder, attempted second degree murder, attempted aggravated assault upon a police officer and first degree reckless endangerment. (Ex. M: 8/4/99 Otero Aff. ¶ 7.)

On January 12, 2000, the § 440 court denied Otero's § 440 motion. (Ex. P: 1/12/00 Justice Stackhouse Order.) The judge noted the habeas and coram nobis petitions that Otero had previously filed and concluded that Otero "has failed to provide any new or persuasive factual support for the allegations in the moving papers. [Otero] has repeatedly raised these issues at the appellate and Federal levels. As many justices have noted, his arguments are groundless." (Id.) The First Department denied leave to appeal from the denial of Otero's § 440 motion on December 14, 2000. (Ex. S: 12/14/00 1st Dep't Order.)

Otero's Current (2001) Habeas Petition and Related Proceedings

Otero's current federal habeas petition raises the Fifth Amendment privilege claim and the erroneous show-up jury instruction claims that were raised in his original petition, as well as the claim that the cross-examination of a defense witness was improper and denied him his right to a fair trial. (Dkt. No. 2: Pet. ¶¶ 12(A)-(B).) He also raises the ineffective assistance of trial and appellate counsel claims raised in his amended petition. (Pet. ¶¶ 12(C)-(D).)

On January 13, 2004, Otero filed a "Notice of Motion to Substitute Counsel" (Dkt. No. 15) which the Court treated as a notice of appearance of counsel and granted that application. (Dkt. Nos. 18-19: 2/26/04 3/3/04 Orders.)

On January 13, 2004, Otero's new counsel submitted a "Memorandum of Law in Opposition to Respondent's Request That Petition Be Denied." (Dkt. No. 15: 1/13/04 Otero Br. in Opp. to Request to Deny Pet.) Included in this brief was a request to hold the petition in abeyance to allow further exhaustion in state court. (Id. at 11; see also id. at 9-10.) Otero's counsel argued that because Otero previously had been proceeding pro se, he "ha[d] not clearly set forth the required fact regarding the errors complained of in the instant petition which revolve around [i]neffective [a]ssistance of counsel." (Id. at 2.) The brief pointed out only one new basis for finding ineffective assistance of trial counsel: That the failure to preserve the claims that the prosecutor improperly cross-examined Otero and a defense witness rendered trial counsel's assistance ineffective. (Id. at 2.) All other claims repeated the grounds already raised in Otero's previous ineffective assistance of counsel motions.

On March 4, 2004, the Court "denie[d] [Otero's] request to hold the petition in abeyance to allow further exhaustion in state court, without prejudice to renewal by March 31, 2004 with, as an exhibit, the proposed coram nobis petition or C.P.L. § 440 motion that petitioner would file in state court if this petition were held in abeyance." (Dkt. No. 19: 3/4/04 Order.)

On March 5, 2004, Otero's counsel submitted his renewed application and attached proposed C.P.L. § 440 and coram nobis motions. (Dkt. No. 20: 3/5/04 Otero Renewed Application.) On March 15, 2004, this Court denied the application without prejudice to renewal, by March 31, 2004, on the ground that the proposed state filings did not "alert the state courts to the alleged errors by counsel. . . ." (Dkt. No. 21: 3/15/04 Memo Endorsed Order.)

On March 29, 2004, Otero's counsel submitted further proposed C.P.L. § 440 and coram nobis motions, and on April 5, 2004, the Court placed Otero's habeas petition on the suspense docket "to allow petitioner to file the § 440 and coram nobis motions in state court." (Dkt. No. 23: 4/5/04 Memo Endorsed Order.) This Court required the state court motions to be filed by April 9, 2004 and required that Otero "supplement or amend his petition in this court within 30 days after final state court decision(s) on the motions, or the claims will be barred from habeas review." (Id.)

Otero's 2004 C.P.L. § 440 and Coram Nobis Motions

Accordingly, Otero filed his coram nobis petition and C.P.L. § 440 motion in state court.

On June 24, 2004, the First Department denied Otero's coram nobis petition without opinion. (6/24/04 1st Dep't Order.)

On August 6, 2004, the § 440 court denied Otero's § 440 motion, holding:

Defendant's claims here repeat the claims of his application before Judge Stackhouse. Under CPL § 440.10(3)(b), a court may deny a motion to vacate a judgment when the issue was previously determined on the merits upon a prior motion. This Court denied the motion because the defendant has repeated the claims here that he previously raised. Although defendant raises one new issue, that [trial counsel] Schwartzberg was ineffective for failing to properly preserve cross-examination and identification errors for his direct appeal and habeas petitions, this Court denies the motion since defendant was in a position to adequately raise this issue but failed to do so. CPL § 440.10(3)(c)).

As to defendant's claims of ineffective assistance of counsel by his trial attorney, that motion is also denied.

. . . .

First, trial counsel's performance was effective. As Judge Stackhouse found regarding defendant's first CPL § 440.10 motion, defendant's motion lacks any factual support for these claims. Several of defendant's claims were rejected in the decision of the Appellate Division; making them again, here in the guise of an ineffective counsel, does not make them more viable. Second, Schwartzberg is not ineffective for not making baseless trial objections; furthermore, defendant has failed to show that he was prejudiced by such failure. [Citing, inter alia, Strickland v. Washington.]

(8/5/04 Justice Stone decision at 5-7.) By letter dated October 29, 2004, Otero's counsel informed this Court that in light of the state court § 440 decision and coram nobis decision, "at this stage we are ready to proceed in the federal forum on behalf of Petitioner Otero." (10/29/04 Dilmaghani Letter to Court.) Thus, it appears that Otero did not seek leave to appeal from the decisions denying his § 440 or coram nobis motions. (See also 11/1/04 Letter of A.D.A. Gadlin to Court: "To my knowledge, petitioner has made no further state court application.")

ANALYSIS

I. THE AEDPA REVIEW STANDARD ²⁰

20 For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *10-14 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *7-9 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *11-13 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.);Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *6-8 (July 29, 2004) (Peck, M.J.); Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 (S.D.N.Y. July 23, 2004) (Peck, M.J.); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *7-9 (S.D.N.Y. July 21, 2004) (Peck, M.J.); Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *8-10 (S.D.N.Y. June 16, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 1656568 (S.D.N.Y. July 23 2004) (Berman, D.J.); Brown v. Fischer, 03 Civ. 9818, 2004 WL 1171277 at *4-6 (S.D.N.Y. May 27, 2004) (Peck, M.J.);Rodriguez v. Goord, 02 Civ. 6318, 2004 WL 540531 at *10-13 (S.D.N.Y. Mar. 19, 2004) (Peck, M.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *22-24 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *8-10 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *14-16 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *12-14 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) (citing my earlier cases);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.),aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18, 2004); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 537 U.S. 1245, 123 S. Ct. 1353 (2003); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 538 U.S. 978, 123 S. Ct. 1787 (2003).

Before the Court can determine whether petitioner Otero is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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) . . . 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)(1)-(2).²¹

21 See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S. Ct. 1713 (2004);Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519.²² Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523.²³ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v.Walker, 296 F.3d at 135; accord, e.g., DelValle v.Armstrong, 306 F.3d at 1200.

22 Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S. Ct. 962 (2003); Jones v.Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v.Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 865 (2001).

23 Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. 2140, 2147 (U.S. 2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v.Smith, 539 U.S. 510, 123 S. Ct. 2527, 2534 (2003); Lockyer v.Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 124 S. Ct. 2171 (2004); Parsad v.Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (2002);Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.²⁴

24 Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S. Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523.²⁵ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. ²⁶ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521.²⁷ "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . 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.'" Jones v. Stinson, 229 F.3d at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).²⁸ "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v.Alvarado, 124 S. Ct. at 2149.²⁹

25 Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.

26 See also, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Eze v.Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

27 Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

28 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v.Hollins, 2003 WL 22299216 at *3.

29 The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

Yarborough v. Alvarado, 124 S. Ct. at 2149.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.³⁰

30 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135; see Yarborough v.Alvarado, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Early v.Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir.) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.), cert. denied, 125 S. Ct. 110 (2004); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference.").³¹ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).³² Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA,de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

31 Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S. Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v.Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

32 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)). II. OTERO'S IMPROPER CROSS-EXAMINATION OF DEFENSE WITNESSES CLAIMS ARE BARRED FROM FEDERAL HABEAS REVIEW BECAUSE THEY WERE DECIDED ON ADEQUATE AND INDEPENDENT STATE GROUNDS AND, IN ANY EVENT, LACK MERIT A. Adequate and Independent State Ground Doctrine ³³

33 For additional decisions by this Judge discussing the adequate and independent state ground doctrine in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *21-23 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *18-21 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.);Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *7-11 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *18-21 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (citing my prior decisions); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.), aff'd, No. 01-2701, 77 Fed. Appx. 546, 2003 WL 22134571 (2d Cir. Sept. 15, 2003); Owens v.Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, No. 99-2416, 205 F.3d 1324 (table), 2000 WL 246226 (2d Cir. Feb. 22, 2000).

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989) (citations internal quotations omitted).³⁴

34 See also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S. Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991); Murray v.Carrier, 477 U.S. 478, 485-88, 496, 106 S. Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999);Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9;accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law.").³⁵ Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10. B. Otero's Claim That His Fifth Amendment Right Against Self-Incrimination Was Violated Is Procedurally Barred and In Any Event Without Merit

35 See, e.g., Garcia v. Lewis, 188 F.3d at 77-82;Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred.").

With respect to Otero's claim that his Fifth Amendment rights were violated when the prosecutor cross-examined him about what he had said, or not said, to the police at the Merit gas station, the First Department held:

Defendant's claim that the prosecutor should not have been permitted to question him about his pre-arrest silence is unpreserved by his general objection. In any event, the prosecutor properly inquired into defendant's silence since it was first brought out on direct examination. Moreover, defendant did not remain silent, but rather stated prior to his arrest that he did not have a gun.

People v. Otero, 225 A.D.2d 489, 490, 639 N.Y.S.2d 819, 820 (1st Dep't 1996) (citations omitted emphasis added).

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. 722, 739, 111 S. Ct. 2546, 2559 (1991).

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review,³⁶ here the First Department explicitly stated that it found Otero's claim to be "unpreserved," People v. Otero, 225 A.D.2d at 490, 639 N.Y.S.2d at 820, and the fact that the First Department also stated the conclusion it would reach on the merits "in any event," id., does not change the result. See, e.g., Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds); Campos v.Portuondo, 193 F. Supp. 2d 735, 744 n. 4 (S.D.N.Y. 2002) ("The language used by the Appellate Division in Campos' case is in contrast with the language used in those cases where the state court found a claim to be 'either meritless or unpreserved.' Unlike the conjunctive 'and,' the use of the disjunctive 'or' in such cases obviously does not clarify whether the court's ruling rests on a procedural bar."), aff'd, 320 F.3d 185 (2d Cir.),cert. denied, 124 S. Ct. 415 (2003); Jones v. Duncan, 162 F. Supp. 2d 204, 211 (S.D.N.Y. 2001) (Peck, M.J.) ("The First Department's use of the conjunctive 'and' rather than the disjunctive 'or' clearly shows that the First Department found these claims to be unpreserved.").³⁷ Thus, the First Department's decision here unambiguously rested on a state procedural ground.³⁸

36 See, e.g., Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) ("We have found a state court's reliance on a state procedural bar to be ambiguous, and thus refused to invoke a procedural bar, where . . . the state court rejected defendant's claims on appeal as 'either meritless or unpreserved.'");Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998);Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992).

37 See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10; Kanani v. Phillips, 03 Civ. 2534, 2004 WL 2296128 at *23 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *10 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) (decision that claim is unpreserved but were it to be reviewed is without merit, sufficient for procedural bar); Velasquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *8 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.);Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *12 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *9 n. 8 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *9 n. 9 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.), report rec. adopted, 2003 WL 1936191 (S.D.N.Y. Apr. 23, 2003) (Mukasey, D.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 n. 19 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.);Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *10 (S.D.N.Y. May 21, 2001) (Peck, M.J.) (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Yeung v.Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (same); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12-13 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp. 2d 281, 287 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp. 2d 257, 274 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.) (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits"); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1998); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).

38 The New York Court of Appeals denied Otero's application for leave to appeal. People v. Otero, 58 N.Y.2d 968, 697 N.Y.S.2d 722 (1996). The Supreme Court held in Ylst v.Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S. Ct. at 2594. Petitioner has presented no facts to rebut that presumption here.

Under New York law, a party's failure to specify the grounds for its general objection renders its argument unpreserved for appellate review. E.g., People v. Everson, 100 N.Y.2d 609, 610, 767 N.Y.S.2d 389, 390 (2003) ("A party's failure to specify the basis for its general objection renders its argument unpreserved for [appellate] review."); People v. Clarke, 81 N.Y.2d 777, 778, 593 N.Y.S.2d 784, 785 (1993); People v.Vidal, 26 N.Y.2d 249, 254, 309 N.Y.S.2d 336, 340 (1970) ("A general objection, in the usual course, is to no avail when overruled if not followed by a specific objection directing the court, and the adversary, to the particular infirmity of the evidence."); People v. Freeman, 305 A.D.2d 331, 331, 760 N.Y.S.2d 470, 471 (1st Dep't), appeal denied, 100 N.Y.2d 594, 766 N.Y.S.2d 169 (2003); see generally C.P.L. § 470.05(2).³⁹

39 C.P.L. § 470.05(2) provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

Here, defense counsel objected after the prosecutor asked Otero: "[S]o you didn't offer any explanation of what you were doing in the Merritt gas station?" (Otero: Tr. 902.) The trial judge overruled the objection and defense counsel did not make any further protest. (Id.) This objection was deemed "general" by the First Department and therefore did not preserve Otero's claim of violation of his Fifth Amendment right against self-incrimination. See People v. Otero, 225 A.D.2d at 489, 639 N.Y.S.2d at 820.

Both the Supreme Court and the Second Circuit have held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground. See, e.g., Wainwright v.Sykes, 433 U.S. 72, 86, 90, 97 S. Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. at 485-92, 497, 106 S. Ct. at 2644-48, 2650 (same); Garcia v. Lewis, 188 F.3d at 79 ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules") (citingBossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05(2) as adequate bar to federal habeas review), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995), Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S. Ct. 236 (1991));Glenn v. Bartlett, 98 F.3d at 724-25 (failure to object constituted adequate and independent state ground); Velasquez v. Leonardo, 898 F.2d at 9 (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *20 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Figueroa v. Greiner, 2002 WL 31356512 at *11-12 ("The Second Circuit has held that the failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate and independent state ground."); Cooper v. LeFevre, No. 94 CV 5958, 1998 WL 386340 at *2 (E.D.N.Y. July 8, 1998) ("[T]he Second Department held that [the petitioner's claim was unpreserved because] the Petitioner violated the contemporaneous objection rule by failing to 'raise specific objections to the evidence . . . 'he cited in his appeal as having deprived him of a fair trial. . . . This Court finds that the Second Department's basis for denying Petitioner's claim was both independent of the federal question raised by such claim and adequate to support the judgment. As a result, this Court is procedurally barred from reviewing the merits of Petitioner's claim"); Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review.").

Because there is an adequate and independent finding by the First Department that Otero procedurally defaulted on his Fifth Amendment claim, Otero would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S. Ct. at 2565.⁴⁰ Ineffective assistance of counsel can, of course, represent cause for a procedural default. See, e.g., Murray v. Carrier, 477 U.S. 478 at 488, 106 S. Ct. at 2645 (1986);Reyes v. Keane, 118 F.3d at 139; Montalvo v. Annetts, 2003 WL 22962504 at *21.⁴¹ Since Otero does raise such a claim of ineffective counsel, this Court reviews the merits of Otero's Fifth Amendment claim.⁴²

40 See also, e.g., Schlup v. Delo, 513 U.S. at 324-27, 115 S. Ct. at 865-67 (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence").

41 See also, e.g., Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.);Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 22093466 at *32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.); Sanchez v. Green, 02 Civ. 4803, 2003 WL 132538 at *2 (S.D.N.Y. Jan. 16, 2003) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6 n. 7 (S.D.N.Y. Oct. 15, 2002) ( cases cited therein).

42 Otero raised this ineffective assistance claim in his most recent § 440.10 motion in state court. (See Dkt. No. 23: Dilmaghani Proposed C.P.L. § 440 Motion at 4.) The § 440 court denied the motion (8/5/04 Justice Stone decision), and Otero has not appealed the decision, nor indicated any intent to do so (10/29/04 Dilmaghani Letter; 11/1/04 A.D.A. Gadlin Letter). Since this was the first time Otero had raised this ground in state court, his ineffective assistance claim is unexhausted but deemed exhausted and procedurally barred. See, e.g., Gillespie v.Miller, 04 Civ. 0295, 2004 WL 1689735 at *9-10 (S.D.N.Y. July 29, 2004 (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *16-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (petitioner's ineffective assistance of counsel claim unexhausted but deemed exhausted and procedurally barred because petitioner "did not appeal the denial of his § 440 motion to the First Department, and it is now too late for [him] to do so, both as a matter of state procedure and, more importantly, as a matter of habeas jurisprudence under Zarvela."). In any event, the claim lacks merit.

On direct examination by his defense counsel, Otero testified that when the police asked him where his gun was, he responded that he "didn't have no gun" and asked "what seems to be the problem, officer?" (Otero: Tr. 876, 882; see page 14 above.) On cross-examination, the prosecutor asked Otero whether he told the police that he had been at the gas station pumping gas all day, and Otero denied that. (Otero: Tr. 902.) The prosecutor followed up by asking (twice) "so you didn't offer any explanation of what you were doing . . .?," to which defense counsel twice objected, but each time Otero ignored counsel's objection and responded. (Otero: Tr. 902-03; see page 18 above.) Otero claims that this violated his Fifth Amendment right by commenting on his silence (Pet. ¶ 12(A)), and that counsel was ineffective for only making a general objection (Dkt. No. 23: Dilmaghani Proposed C.P.L. § 440 Motion at 4.).

The prosecutor's line of questions was not directed at Otero's silence, but rather at the false story (that he had been at the gas station all day pumping gas) that he told the police, as confirmed by the detectives' rebuttal testimony. While it is a violation of a defendant's Fourteenth Amendment right to due process⁴³ to be questioned at trial about his post-Miranda silence, Doyle v. Ohio, 426 U.S. 610, 618-20, 96 S. Ct. 2240, 2245-46 (1976), where a defendant does not remain silent after his arrest and then gives testimony at trial that is inconsistent with those post-arrest statements, the defendant may be impeached by those statements. E.g., Anderson v.Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 2182 (1980) ("Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. . . . The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement."); see, e.g., United States v. Cruz, No. 97-1042, 125 F. 3d 845 (table), 1997 WL 626490 at *1 (2d Cir. Oct. 9, 1997) (Doyle rule does not apply to post-Miranda statements that are inconsistent with defendant's testimony at trial).⁴⁴

43 Otero claims that it was his Fifth Amendment right against self-incrimination that was violated. However, the constitutional right triggered here is Fourteenth Amendment due process. Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 2240, 2245 (1976) ("[I]t would be fundamentally unfair and a deprivation of due process to allow the arrested person's [post-Miranda] silence to be used to impeach an explanation subsequently offered at trial.").

44 See also, e.g., Brogdon v. Butler, 838 F. 2d 776, 781 (5th Cir. 1988) ("The prosecuting attorney's questions regarding [defendant' s] failure to tell police the same story he told at trial was permissible to impeach [defendant' s] prior inconsistent statement" where defendant had made his statement to police after he received Miranda warnings.); Grieco v.Hall, 641 F.2d 1029, 1036 (1st Cir. 1981) ("Doyle does not apply to inquiry regarding post-arrest[, post-Miranda,] statements inconsistent with exculpatory trial testimony.").

Further, Otero does not even claim to have been given Miranda warnings before he started talking, and none of the police officers testified to giving them to Otero at that time. If Otero did not receive Miranda warnings, then even if the prosecutorwas questioning him about a post-arrest silence, his due process rights would not have been triggered and therefore not violated. See, e.g., Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312 (1982) (the record did not indicate anyMiranda warnings having been given during the period in which the defendant remained silent, therefore, "[i]n the absence of [Miranda warnings], we do not believe that it violates due process of law for a State to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand."); United States v. Vega, 589 F. 2d 1147, 1151 (2d Cir. 1978) ("[T]he appellant received no Miranda warnings and indeed was entitled to none since she had not been placed in custody. Thus, both factors which the Supreme Court recited in . . .Doyle as giving rise to constitutional difficulties that the defendant was in custody and had been given Miranda warnings are absent in this case.").

Moreover, Otero opened the door to these questions about his statements, or lack thereof, by his direct testimony that he told the police that he had no gun and "what seems to be the problem, officer?" (See Otero: Tr. 876.) It is within the discretion of the trial judge to decide whether and how wide the door had been opened. See, e.g., People v. Massie, 2 N.Y.3d 179, 184, 777 N.Y.2d 794, 797 (2004) ("[A] trial court should decide 'door-opening' issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression.") (citing the leading case on opening the door, People v. Melendez, 55 N.Y.2d 445, 449 N.Y.S.2d 946 (1982)); People v. Wise, 46 N.Y.2d 321, 327, 413 N.Y.S.2d 334, 338 (1978) ("[D]efendant by his direct testimony must 'open the door' to impeachment; otherwise such cross-examination would be impermissible. But this is merely another way of saying that there must be an inconsistency between the trial testimony and the previous statement. . . . So long as defendant recounts the events to which the prior inconsistent statement relates, he has opened the door to impeachment.") (citations omitted); People v. Sandel, 299 A.D.2d 373, 374, 749 N.Y.S.2d 554, 555 (2d Dep't 2002) ("[T]he defendant opened the door to [cross-examination] about [his statement that was suppressed by a pretrial ruling] by giving testimony on direct examination about the events surrounding his arrest which differed from those which could be inferred from his statement."), appeal denied, 99 N.Y.2d 585, 755 N.Y.S.2d 721 (2003); People v. Lewis, 177 A.D.2d 421, 421, 576 N.Y.S.2d 262, 263 (1st Dep't 1991) (defendant opened the door to cross-examination about why he "neither called the police nor explained to the bystanders that he was a victim of an assault and not the perpetrator of the robbery" when he testified that the complainant was the first aggressor), appeal denied, 79 N.Y.2d 949, 583 N.Y.S.2d 203 (1992). Otero put his statements to the police in issue through his direct testimony. The prosecution was free to ask, in leading question form, whether Otero had told the police a lie (that he was at the gas sation all day) to impeach Otero's credibility and to make sure the jury heard about all statements Otero made at the gas station that day. See, e.g., People v. Wise, 46 N.Y.2d at 327-28, 413 N.Y.S.2d at 338 ("[W]here a defendant's trial testimony offers one version of the events in question, and his prior remark to a police officer suggests a contrary view of those events, the jury is entitled to hear the previous statement so that it may fully assess the witness' credibility."); People v. Collins, 287 A.D.2d 271, 271-72, 730 N.Y.S.2d 511, 513 (1st Dep't 2001) ("After defendant elicited the fact that he had made an exculpatory statement to the police at the scene, the prosecutor was clearly entitled to elicit on redirect examination that defendant's statement contained significant and unnatural omissions."). The additional question that Otero "didn't offer any explanation" was not a comment about Otero's "silence," but rather reinforcing Otero's denial that he said he was at the gas station, to set up the detectives' rebuttal testimony that Otero indeed had given them a false alibi. See, e.g., People v.Griffith, 231 A.D.2d 530, 530, 647 N.Y.S.2d 249, 250 (2d Dep't) ("[W]hen the defendant denied making this statement during cross-examination, the Supreme Court properly determined that a proper foundation had been laid for the admission of rebuttal testimony by the officer who heard the statement when she came to the scene."), appeal denied, 89 N.Y.2d 923, 654 N.Y.S.2d 725 (1996).

Thus, Otero's Fifth Amendment habeas claim is procedurally barred but in any event without merit, and should be DENIED. C. Otero's Claim that He Was Denied a Fair Trial by the Cross-Examination of an "Alibi" Witness Is Procedurally Barred and In Any Event Without Merit

The First Department similarly denied as unpreserved Otero's claim that he was denied a fair trial when the prosecution cross-examined his "alibi" witness, Latasha Jones, about why she did not come forward earlier:

Defendant's claim of error regarding the prosecutor's question of an alibi witness as to whether she had advised he police of defendant's alibi was not preserved, since the only objection was by counsel for codefendant. In any event, the question was proper because of the close friendship between defendant's family and that of the alibi witness, such that the witness's natural inclination would be to come forward with the information at the earliest possible moment. Additionally, since defense counsel had brought out on direct examination that the alibi witness told defendant's brother of the alibi shortly after the arrest, the door was opened to further inquiry.

People v. Otero, 225 A.D.2d 489, 490, 639 N.Y.S.2d 819, 820-21 (1st Dep't 1996) (citations omitted emphasis added).

The only objection to the prosecutor's cross and re-cross-examination on the subject of Jones' failure to provide the alibi information to the police came from co-defendant's counsel, not Otero's counsel. (Jones: Tr. 697, 717-18; see page 16 above.)

The First Department denied Otero's appeal on this issue as "not preserved, since the only objection was by counsel for codefendant." People v. Otero, 225 A.D.2d at 490, 639 N.Y.S.2d at 820. This is an adequate and independent state law ground.

Pursuant to New York law, when there is more than one defendant on trial, an objection by one defendant's counsel will not preserve the issue for appeal for the non-objecting defendant.See, e.g., People v. Buckley, 75 N.Y.2d 843, 846, 552 N.Y.S.2d 912, 914 (1990); People v. Peralta, 261 A.D.2d 101, 102, 689 N.Y.S.2d 89, 90 (1st Dep't), appeal denied, 93 N.Y.2d 1024, 697 N.Y.S.2d 583 (1999);Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *9 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) ( cases cited therein). The New York contemporaneous objection rule requires objection to be made "by the party claiming error." C.P.L. § 470.05(2) (quoted at page 44 n. 39 above). Here, although counsel for co-defendant Carlos Rivera objected to the prosecution's cross-examination of Latasha Jones regarding her failure to contact the police, Otero's attorney did not. (See page 16 above.) Thus, as to Otero, this issue was not preserved for appeal. The First Department's decision rests on an adequate and independent state law ground. (See cases cited at pages 45-46 above.) See also, e.g., Simpson v. Portuondo, 01 Civ. 8744, 2002 WL 31045862 at *3-4 (S.D.N.Y. June 4, 2002) (First Department's finding that petitioner's claim was unpreserved for appellate review because objection was made only by co-defendant's counsel was an adequate and independent state law ground.).

Again, however, because Otero claims that his trial counsel was ineffective for failing to object (Dkt. No. 23: Dilmaghani Proposed C.P.L. § 440 Motion at 4), the Court will address the merits of this claim.⁴⁵

45 As is the case with Otero's claim that his counsel was ineffective for failing to preserve his Fifth Amendment right, this claim was raised for the first time in Otero's most recent C.P.L. § 440 motion, was denied (8/5/04 Justice Stone decision), and no further appeals are pending (see page 31 above). This claim, therefore, is unexhausted but deemed exhausted and procedurally barred. (See cases cited at page 47 fn.42 above.) In any event, the claim lacks merit.

Under New York law, while a witness has no obligation to volunteer exculpatory information to police officers, that witness' previous silence may be used to impeach her testimony at trial in appropriate circumstances, such as where she is a family member or close friend of the defendant. E.g., People v. Dawson, 50 N.Y.2d 311, 317-18, 428 N.Y.S.2d 914, 918-19 (1980) ("[A]bsent a specific legislative directive, a citizen ordinarily has no legal obligation to volunteer exculpatory information to law enforcement authorities. . . . Accordingly, it would be improper for a District Attorney to suggest through his questioning that a witness has a flawed moral character or is generally unworthy of belief solely because he or she failed to come forward prior to the trial. . . . It does not necessarily follow, however, that an individual's previous silence may never be used as a basis for impeaching his testimony at trial."). The New York Court of Appeals, in People v. Dawson, recognized that there are situations in which impeachment of an alibi witness regarding her failure to come forward are probative of that witness' truthfulness. Id. at 318, 428 N.Y.S.2d at 919. Particularly, when the witness is "a friend or loved one," "the natural impulse of [such] a person possessing exculpatory information would be to come forward at the earliest possible moment in order to forestall the mistaken prosecution. . . . In such situations, the failure to speak up . . . might well cast doubt upon the veracity of the witness' exculpatory statements at trial." Id.

In order for a prosecutor to cross-examine a witness about her failure to come forward before trial, a proper foundation must be laid. Id. at 321, 428 N.Y.S.2d at 921. The State should "demonstrat[e] that: [1] the witness was aware of the nature of the charges pending against the defendant, [2] had reason to recognize that he possessed exculpatory information, [3] had a reasonable motive for acting to exonerate the defendant and, finally, [4] was familiar with the means to make such information available to law enforcement authorities." Id. at 321 n. 4, 428 N.Y.S.2d at 921 n. 4.⁴⁶

46 The Dawson court also ruled that the trial judge should hold a bench conference "when such questioning begins . . . to ascertain whether the witness refrained from speaking under the advice of defense counsel," because then the questioning would be improper. People v. Dawson, 50 N.Y.2d at 323, 428 N.Y.S.2d at 922. Here, no bench conference was held. When a proper foundation has been laid, however, New York courts generally have not reversed for failure to hold a bench conference. See e.g., People v. Hadden, 210 A.D.2d 546, 548, 621 N.Y.S.2d 110, 111 (3d Dep't 1994) (finding "no impropriety in the cross-examination of [the alibi] witness regarding his failure to come forward at an earlier date, particularly since a proper foundation had been laid for this line of questioning. Although it is preferable that a bench conference be held prior to questioning a witness as to reasons for an earlier silence, in this case any error was harmless as it did not deprive defendant of a fair trial."),appeal denied, 85 N.Y.2d 910, 627 N.Y.S.2d 332 (1995); People v. Martinez, 153 A.D.2d 957, 957-58, 545 N.Y.S.2d 764, 765 (2d Dep't) (no error where court did not hold bench conference but proper foundation was laid for cross-examination of alibi witness for failing to go to the police), appeal denied, 75 N.Y.2d 772, 551 N.Y.S.2d 914 (1989); but cf., People v. Muniz, 89 A.D.2d 611, 611, 452 N.Y.S.2d 450, 451 (2d Dep't 1982) (court "improperly permitted" the prosecutor to cross-examine defense witnesses about their failure to come forward to the police or grand jury without first "determining the good faith basis for such questioning or holding a Bench conference to determine the reason for the witnesses' silence" or giving a curative instruction when requested by defense counsel).

Here, the prosecutor laid a proper foundation under theDawson standard. First, the prosecutor brought out during cross-examination that Latasha Jones had learned that Otero had been arrested a few days after it occurred when Otero's brother called her, that they "discussed" it and she asked when and "what happened." (Jones: Tr. 697; see page 16 above.) Second, Jones testified that in that same conversation she told Otero's brother that she did not understand how Otero could have gotten arrested since she had seen him in front of the building on that day, near in time to the arrest. (Jones: Tr. 697.) Further, the prosecution asked Jones whether she knew she had information that could have helped Otero, to which Jones answered yes. (Jones: Tr. 717.) Third, Jones was a close family friend of Otero's. (See page 13 above.) Finally, the prosecution established that Jones knew how to contact the police and knew where her local precinct was. (Jones: Tr. 717-18.) After laying this foundation, the prosecutor pointed out that Jones knew she had this exculpatory information and yet failed to contact the authorities; Jones replied that she had not seen a reason to contact the police. (Jones: Tr. 718.)

Moreover, the judge sua sponte informed the jury that Jones had "no legal obligation" to go to the police (Tr. 717), which is consistent with the teaching of Dawson, 50 N.Y.2d at 322-23, 428 N.Y.S.2d at 922 ("Additionally, the Trial Judge should inform the jurors, upon request, that the witness has no civic or moral obligation to volunteer exculpatory information to law enforcement authorities and that they may consider the witness' prior failure to come forward only insofar as it casts doubt upon the witness' in-court statements by reason of its apparent inconsistency.").

The questioning of Otero's alibi witness Jones therefore was proper under New York law, and trial counsel cannot be found ineffective for failing to make a meritless objection.

Otero's habeas claim about the cross-examination of Latasha Jones should be DENIED. III. OTERO'S SHOW-UP IDENTIFICATION JURY CHARGE CLAIM SHOULD BE DENIED

Otero claims that the trial judge gave a "one-side[d]" charge to the jury regarding the show-up identification evidence thereby depriving Otero of his right to a fair trial. (Dkt. No. 2: Pet. ¶ 12(B).) A. Standard of Review of a State Court's Jury Instructions ⁴⁷

47 For additional decisions by this Judge discussing the standard of review of a state court's jury instructions in language substantially similar to that in this entire section of this Report and Recommendation, see, e.g., Rodriquez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *24 (S.D.N.Y. March 15, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *22 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.),report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *27 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *9 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *4-5 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Gillette v. Greiner, 76 F. Supp. 2d 363, 370 (S.D.N.Y. 1999) (Stein, D.J. Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4 (S.D.N.Y. Sept.17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5 (S.D.N.Y. April 29, 1998) (Cote, D.J. Peck, M.J.).

It is well-established that a federal habeas court "is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'") (quoting Lewis v. Jeffers, 497 U.S. 764, 780, 110 S. Ct. 3092, 3102 (1990)).

As the Second Circuit has stated: "'In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); accord, e.g., Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001); Sams v. Walker, 18 F.3d 167, 171 (2d Cir. 1994).⁴⁸ Failure to give a properly requested jury charge does not by itself violate a petitioner's right to due process. E.g., Blazic v.Henderson, 900 F.2d at 541 ("A mere error of state law does not deny a defendant his right to due process.").⁴⁹ Moreover, "[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court." Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736 (1977).

48 See, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400 (1973); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *12 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *5 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Holden v. Miller, 00 Civ. 0926, 2000 WL 1121551 at *13 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.).

49 See also, e.g., Schaefer v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied, 404 U.S. 939, 92 S. Ct. 277 (1971).

"For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.2d at 541 (quoting Cupp v. Naughten, 414 U.S. at 147, 94 S. Ct. at 400); see also, e.g., Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985); Carmona v. Artuz, 96 Civ. 8045, 1997 WL 876737 at *11 (S.D.N.Y. Oct. 7, 1997) ("Jury charges that contain errors, even if they lead to the jury misapplying state law, do not ordinarily give rise to federal habeas corpus relief in non-capital cases. . . . Rather, an erroneous jury charge must have 'infected the entire trial' to be a cognizable claim in a habeas corpus proceeding."), report rec. adopted, 1998 WL 213781 (S.D.N.Y. Apr. 29, 1998). B. The Trial Judge's Identification Charge Was Proper And His Marshaling the Evidence Was Balanced

Pursuant to New York law, a jury charge on identification is an "'accurate statement of the law'" so long as the judge gives "'a general instruction on weighing witnesses' credibility and . . . states that identification must be proven beyond a reasonable doubt.'" Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quoting People v. Whalen, 59 N.Y.2d 273, 279, 464 N.Y.S.2d 454 (1983)); see also, e.g., People v. Knight, 87 N.Y.2d 873, 874-75, 638 N.Y.S.2d 938, 939 (1995) (identification charge was proper where the court instructed the jury on its duty to determine credibility and that it had to find each element of the crimes charged proven beyond a reasonable doubt, even though the trial court had not given the reasonable doubt charge specifically about identification because "[i]n People v.Whalen, . . . we considered a similar claim and stated that although an expanded identification charge was the 'better practice,' particularly when, as there, an alibi defense was presented, the failure to so charge did not constitute reversible error. Whether the charge is appropriate in an individual case is, we said, a matter for the Trial Judge's discretion.");People v. Smith, 203 A.D.2d 396, 396, 610 N.Y.S.2d 81, 82 (2d Dep't) (where the identification at issue was a show-up, trial judge's instructions on "weighing the witness' credibility, and . . . that identification must be proven beyond a reasonable doubt" were adequate to properly charge the jury on identification, citing People v. Whalen), appeal denied, 83 N.Y.2d 972, 616 N.Y.S.2d 25 (1994).

Here, the trial judge instructed the jury on its responsibility to find that identification was proven beyonda reasonable doubt and the "paramount" importance of scrutinizing the witnesses' testimony and weighing their credibility. (See page 20 above.) The judge relied, almost verbatim, on the Pattern Criminal Jury Instructions. See Howard G. Leventhal, Charges to the Jury and Requests to Charge in a Criminal Case in New York, CTJNY § 4:48 (West 2004). The judge's identification charge therefore was appropriate under New York law. Indeed, Otero's habeas petition does not challenge the judge's instructions on the law, but rather the judge's marshaling of the evidence on the identification charge.

The trial judge is required to "state the material legal principles applicable to the particular case, . . . but it need not marshal or refer to the evidence to any greater extent than is necessary for such explanation." C.P.L. § 300.10(2). The judge is not required to "explain all the contentions of the parties or outline all the inconsistencies in the evidence." People v.Saunders, 64 N.Y.2d 665, 667, 485 N.Y.S.2d 250, 251 (1984);see also, e.g., People v. Baxter, 232 A.D.2d 196, 197, 648 N.Y.S.2d 433, 433 (1st Dep't 1996), appeal denied, 89 N.Y.2d 939, 655 N.Y.S.2d 890 (1997). Here, the trial judge explained what the show-up identifications were in this case: Gervasio Rivera's and Detective Hernandez's testimony regarding their identification of Otero at the Merit gas station. (See page 20 above.) The judge explained that show-up identifications are premised on the view that the memory of the identifying witnesses "was presumably fresher" at the time of the show-up than at the time of trial. (See page 20 above.)

The judge then explained the parties' contentions. He explained the State's argument that the show-up identification

tends to establish that the witnesses in identifying the defendant here in court as the perpetrators and not relying solely on their now possibly stale memory of the perpetrators on the date and time in question.

They are also relying on that chance that they had to identify them right after the or soon after the alleged incidents.

(Charge: Tr. 1107.) On the other hand, the judge explained that the defense claimed

among other things . . . the witnesses were mistaken when they identified them as the perpetrators at those respective locations and . . . partially because of those previous mistakes they are now identifying them here in court, not as the actual perpetrators, but because they made a mis-identification at the scene or shortly thereafter the incident at the Merritt Gas Station. In other words, the defendant is contending that the wrong man is on trial and that witnesses made a mistake at the previous identification procedures at the show-ups.

(Charge: Tr. 1107-08.) The judge finished by reiterating the reasonable doubt standard for identity. (Charge: Tr. 1108-09.)

While the judge did not instruct the jury about inconsistencies between the identifying witnesses' descriptions of Otero, he was not required to do so. The judge summed up the arguments of each side with respect to the show-up identifications; the judge did not need to go further into all of the evidence presented at trial. See, e.g., People v. Saunders, 64 N.Y.2d at 667, 485 N.Y.S.2d at 251. The judge devoted equal time to each party's claims and did not emphasize one side's position over the other.Compare, e.g., People v. Seegars, 172 A.D.2d 183, 187, 568 N.Y.S.2d 361, 363 (1st Dep't) (court's charge was error where it devoted "[s]everal pages of the record" to the State's identification evidence and only two sentences to the defense of mis-identification), appeal dismissed, 78 N.Y.2d 1069, 576 N.Y.S.2d 216 (1991); with People v. Bryant, 165 A.D.2d 693, 693, 564 N.Y.S.2d 250, 250 (1st Dep't 1990) (Trial court's marshaling of the evidence was balanced where it "set forth the People's contentions and balanced that statement by setting forth defendant's contentions including claims that he had been misidentified by one victim. . . ."), appeal denied, 77 N.Y.2d 959, 570 N.Y.S.2d 492 (1991).

Finally, Otero's claim that the charge mis-stated the defense's position by leaving out that the defense was arguing that the identifications had been "suggested by the suggestive circumstances and . . . that the suggestive circumstances influenced the in-court-testimony" is misguided. (Dkt. No. 2: Pet. ¶ 12(B)(5).) The judge correctly characterized the defense position that the wrong man was arrested but did not claim that this was the defense's only contention. (See Tr. 1107 ("the defendants are contending that among other things, that the witnesses were mistaken when they identified them. . . .").) The judge was not required to set forth every nuance of the parties' arguments. See, e.g., People v. Saunders, 64 N.Y.2d at 667, 485 N.Y.S.2d at 251.

Therefore, Otero's habeas claim about the identification charge should be DENIED. IV. OTERO'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ⁵⁰ 1. Strickland and Trial Counsel

50 For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Kanani v.Phillips, 03 Civ. 2534, 2004 WL 2296128 at *25-27 (S.D.N.Y. Oct. 13, 2004) (Peck, M.J.); Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *20-21 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *13-15 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.); Gillespie v.Miller, 04 Civ. 0295, 2004 WL 1689735 at *14-16 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.);Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.);Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my prior decisions);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S. Ct. 1787 (2003).

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.⁵¹

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).⁵²

51 Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1850 (2002).

52 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S. Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "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. at 694, 104 S. Ct. at 2068.⁵³

53 See also, e.g., Wiggins v. Smith, 123 S. Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S. Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S. Ct. at 1953; cf. id. at 297-301, 119 S. Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process.Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.⁵⁴

54 Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S. Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.⁵⁵

55 See also, e.g., Yarborough v. Gentry, 540 U.S. 1, 124 S. Ct. 1, 5-6 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.

2. Strickland and Appellate Counsel

The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764 (2000).⁵⁶ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S. Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v.Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *18 n. 30 (S.D.N.Y. May 31, 2002) (Peck, M.J.) (discussing the issue of whether a federal or state standard should apply), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.), aff'd, No. 02-2540, 368 F.3d 179 (table), 2004 WL 1094269 (2d Cir. May 18, 2004).

56 Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S. Ct. 830, 836-37 (1985); Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 197 (2d Cir. 2002),cert. denied, 537 U.S. 1146, 123 S. Ct. 946 (2003); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v.Kuhlman, 261 F.3d 303, 319 (2d Cir. 2001); McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 520, 115 S. Ct. 81 (1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S. Ct. 2347 (1993);Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S. Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S. Ct. 3308, 3312-14 (1983)).⁵⁷ Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp. 2d 347, 371-72 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.).⁵⁸ Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85. 3. Strickland and the AEDPA Review Standard

57 Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); Mayo v. Henderson, 13 F.3d at 533.

58 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S. Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 216 (1984).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).⁵⁹ "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S. Ct. at 1852; see also Yarborough v. Gentry, 540 U.S. 1, 124 S. Ct. 1, 4 (2003).

59 See also, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S. Ct. 1843, 1852 (2002); Sellan v. Kuhlman, 261 F.3d at 315.

B. Otero's Ineffective Assistance of Trial Counsel Claims Lack Merit

Otero argues that he received ineffective assistance from his trial counsel because his counsel: (1) failed to investigate the "mitigating factors" of the case (Pet. ¶ 12(C)(2)); (2) failed to research the applicable law (Pet. ¶ 12(C)(3)); (3) failed to request clarifying instructions from the trial judge, or to submit alternate charges, in response to questions from the jury during their deliberations (Pet. ¶¶ 12(C)(3)-(4)); (4) failed to request that the Mapp hearing be reopened (Pet. ¶¶ 12(C)(5)-(6)); (5) failed to request that a lesser included offense be submitted to the jury (Pet. ¶¶ 12(C)(6)-(10)); (6) failed to "insist that the jury be called upon to deal with the vagueness of the prosecutor's testimony" (Pet. ¶ 12(C)(13)); (7) failed to preserve his claim that the prosecution's cross-examination of him concerning his pre-trial silence violated his Fifth Amendment rights; and (8) failed to preserve his claim that the prosecution's cross-examination of his alibi witness similarly was unconstitutional error.⁶⁰ Additionally, Otero claims that the cumulative effect of counsel's errors constituted ineffective assistance of counsel. (Pet. ¶ 12(C)(11).) Finally, Otero argues that it was error for the "lower state court," presumably the § 440 court, to dismiss his motion without a hearing. (Pet. ¶ 12(C)(15).)

60 As to the latter two claims, the Court has already held that the trial court's rulings were correct. (See pages 47-51, 53-56 above.) Accordingly, Otero cannot show prejudice from counsel's failure to properly and specifically object. The Court therefore need not discuss these two ineffective assistance claims any further.

1. Otero's Claim That Trial Counsel Was Ineffective For Failing To Investigate the Facts, Research the Law and Assist the Jury With the Vagueness of the Prosecution Case, is Too Vague And Conclusory to Merit Habeas Relief

Otero's allegations that his trial counsel failed to investigate the mitigating factors of his case, failed to research the applicable law, and failed to "insist that the jury be called upon to deal with the vagueness of the prosecutor's testimony" (Pet. ¶¶ 12(C)(2), (3) (13)), fail because they are vague and conclusory. Moreover, Otero has not shown that he suffered prejudice as a result of these alleged errors.

It is well established that conclusory allegations, such as these, are insufficient to meet the rigorous standard underStrickland v. Washington. See, e.g., United States v.Vargas, 920 F.2d 167, 170 (2d Cir. 1990) (petitioner's affidavit making allegations in a "conclusory fashion" failed to demonstrate that counsel's decision not to call a witness was unreasonable),cert. denied, 502 U.S. 826, 112 S. Ct. 93 (1991); Smalls v.McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *23 n. 41 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.) (citing cases); Angel v.Garvin, 98 Civ. 5384, 2001 WL 327150 at *8 (S.D.N.Y. Apr. 3, 2001) (citing cases) ("A habeas petition may be denied 'where the allegations are . . . vague, [or] conclusory . . ."); Slevin v.United States, 98 Civ. 0904, 1999 WL 549010 at *5 (S.D.N.Y. July 28, 1999) (§ 2255 case; "Petitioner's conclusory allegations that counsel evinced 'a general lack of preparation' do not demonstrate that absent the alleged errors, the outcome of the trial would have been different. Petitioner has not elaborated on how counsel's alleged general lack of preparation prejudiced the outcome of his trial. Accordingly, such purported lack of preparation cannot be deemed ineffective assistance of counsel."), aff'd, 234 F.3d 1263 (2d Cir. 2000); Cromwell v.Keane, 98 Civ. 0013, 2002 WL 929536 at *19 (S.D.N.Y. May 8, 2002) (Peck, M.J.).⁶¹

61 See also, e.g., Muhammad v. Bennett, 96 Civ. 8430, 1998 WL 214884 at *1 (S.D.N.Y. Apr. 29, 1998) ("petitioner's speculative claim about the testimony of an uncalled witness" is insufficient to show ineffective assistance of trial counsel);Vasquez v. United States, 96 Civ. 2104, 91 CR 153, 1997 WL 148812 at *1-2 (S.D.N.Y. Mar. 28, 1997) (§ 2225 case; "[P]etitioner's allegations with regard to alleged counsel errors in pre-trial preparation and investigation and trial advocacy are 'vague, conclusory, and unsupported by citation to the record, any affidavit, or any other source,' and, accordingly, . . . '[t]he vague and unsubstantiated nature of the claims' defeated petitioner's claim of ineffective assistance of counsel. . . .");Parnes v. United States, 94 Civ. 6203, 91 CR 152, 91 CR 165, 1995 WL 758805 at *3 (S.D.N.Y. Dec. 21, 1995) (§ 2225 case; "[V]ague allegations do not permit the Court to conclude that the alleged errors of Petitioner's counsel fell below 'prevailing professional norms'. . . . Accordingly, the Court rejects Petitioner's claim that he received ineffective assistance of counsel."); Hartley v. Senkowski, No. CV-90-395, 1992 WL 58766 at *2 (E.D.N.Y. Mar. 18, 1992) ("In light of this demanding [Strickland] standard, petitioner's vague and conclusory allegations that counsel did not prepare for trial or object to errors carry very little weight."); Matura v. United States, 875 F. Supp. 235, 237-38 (S.D.N.Y. 1995) (§ 2255 case; mere conclusory allegations that counsel was ineffective fails "to establish that his counsel's performance was deficient [and]. . . . fails to overcome the presumption [under Strickland] that counsel acted reasonably. . . .").

Here, Otero's claim that his trial counsel failed to investigate the "substance of the mitigating factors of the case" (Pet. ¶ 12(C)(2)), without specification of what the mitigating factors were, is insufficient to show that counsel acted objectively unreasonably with respect to the extent of his investigation. See United States v. Vargas, 920 F.2d at 170. Similarly, Otero's mere mention of a "failure to research the applicable law" is not enough to alert the Court to a deficient performance of counsel on this ground. See, e.g., Sirotnikov v. United States, 97 Civ. 3295, 97 Cr. 374, 1998 WL 770557 at *4 (S.D.N.Y. Nov. 2, 1998) ("Petitioner's naked assertion that his trial counsel 'failed to adequately perform pretrial research and investigation,' does not establish ineffective assistance of counsel.").

Otero's claim that his counsel failed to "insist the jury be called upon to deal with the vagueness of the prosecutor's testimony" (Pet. ¶ 12(C)(3)) also is too vague for the Court to discern the nature of the alleged deficiency in his trial counsel's performance. Therefore, this claim must fail as well.

The Court also notes that while Otero brought this petition pro se, counsel later appeared for him in this habeas case. Thus, Otero is no longer entitled to the extra leeway given pro se petitioners. 2. Counsel's Failure to Request Clarifying Instructions or Submit an Alternate Charge In Response to the Jury's Notes

During its deliberations, the jury requested that the judge distinguish between various counts using "simple" terms. (See page 22 above.) Otero claims that his counsel should have requested alternate charges or clarifying charges in response to these questions. (Pet. ¶¶ 12(C)(3)-(4), (6)-(10).) The trial judge answered each of the jury's questions, noting for the jury that he was trying to use simple terms as requested, and stated that he had discussed with the attorneys the jury questions and his proposed responses. (See pages 21-23 above.)⁶²

62 Because the judge consulted with counsel off the record, this Court does not know whether defense counsel, in fact, requested supplemental instructions. However, for purposes of this habeas petition, this Court assumes that counsel made no such request.

The fact that the judge consulted with the attorneys on the jury's questions⁶³ means that Otero's defense counsel had the opportunity to object to the proposed supplemental instructions or submit his own versions. See, e.g., C.P.L. § 310.30; United States v. Ronder, 639 F.2d 931, 934 (2d Cir. 1981) ("It is settled law that messages from a jury should be disclosed to counsel and that counsel should be afforded an opportunity to be heard before the trial judge responds. . . . Counsel should be afforded an opportunity to suggest appropriate responses. During this colloquy, it is also helpful for the judge to inform counsel of the substance of his proposed response. . . ."); People v. O'Rama, 78 N.Y.2d 270, 277, 574 N.Y.S.2d 159, 162 (1991) (an "important purpose [of the requirement in § 310.30 that notice of a jury note be given to counsel] is to ensure that counsel has the opportunity to be heard before the response is given. . . . Such an opportunity is essential to counsel's ability to represent the client's best interests and, further, to ensure the protection of the client's constitutional and statutory rights at these critical postsubmission proceedings.") (emphasis in original).

63 The trial judge pointed out, before answering all but two questions, that he had discussed the answer with the attorneys. (See page 23 above.) The answers that he gave without mentioning his consultation with the attorneys was in response to the fourth question of the first note and the second question in the second note. (See page 23 above.) The judge answered all four questions from the note in succession, with the jury assembled, without interruption, and the same for both questions in the second note. Logic suggests that counsel was notified of all the questions in each note.

The trial judge's supplemental instructions to the jury were proper. The trial judge followed the language of the pertinent sections of the Penal Law when issuing his supplemental instructions and applied the statutory elements to the facts of the case at bar. He gave a simple answer to clarify a distinction between two different counts when necessary. His instructions were therefore proper. See C.P.L. § 300.10(4) ("In its charge, the court must define each offense . . . submitted [to the jury]."); People v. Ellis, 183 A.D.2d 534, 536, 585 N.Y.S.2d 177, 178 (1st Dep't 1992) ("[S]ince the trial court is in the best position to interpret the jury's request, it has discretion to fashion the appropriate response and may even respond by repeating its earlier instructions on the same subject."),aff'd, 81 N.Y.2d 854, 597 N.Y.S.2d 623 (1993). Indeed, Otero does not challenge the correctness of the judge's supplemental instructions, nor does he indicate what supplemental instructions his counsel should have suggested. It is significant in this regard that although Otero brought his habeas petition pro se, he subsequently obtained counsel, and counsel has not suggested any supplemental instruction that trial counsel should have requested nor how the absence of any such instruction prejudiced Otero.

Because the judge's supplemental instructions were proper, Otero's counsel cannot be deemed ineffective for failing to assert a meritless objection or failing to request additional instructions. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir. 2001) ("[W]hen a trial court's instruction is legally correct as given, the failure to request an additional instruction does not constitute deficient performance."); United States v. Javino, 960 F.2d 1137, 1145 (2d Cir.) (failure to request instructions did not constitute ineffective counsel, because the court's instructions on those topics "were correct as given"), cert. denied, 506 U.S. 979, 113 S. Ct. 477 (1992);Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *35 n. 61 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) ("Because there was no basis for [petitioner's] counsel to object to the jury charge, counsel cannot be faulted for failure to make a meritless objection."); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *15 n. 27 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Manning v. Walker, No. 99-CV-5747, 2001 WL 25637 at *19 (E.D.N.Y. Jan. 3, 2001) (because "court committed no error in its jury charges, it follows that [petitioner's] defense counsel was not constitutionally ineffective by failing to object").⁶⁴

64 See also, e.g., United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance."), cert. denied, 531 U.S. 811, 121 S. Ct. 33 (2000); United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.) ("the failure to make a meritless argument does not rise to the level of ineffective assistance"),cert. denied, 516 U.S. 927, 116 S. Ct. 330 (1995); United States v. Moland, No. 94-1032, 39 F.3d 1193 (table), 1994 WL 600985 at *2 (10th Cir. Nov. 3, 1994) ("counsel cannot be ineffective for not pursuing a strategy doomed to failure");Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S. Ct. 1354 (1987); McPherson v.Greiner, 02 Civ. 2726, 2003 WL 22405449 at *22 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.) ("[C]ounsel cannot be found to be ineffective for failing to assert a meritless objection.");Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *22 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.) ("Because there would have been no merit to any of the objections [petitioner] contends defense counsel should have made, counsel's failure to object does not constitute ineffective assistance."); Franza v.Stinson, 58 F. Supp. 2d 124, 148 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Duncan v. Greiner, 97 Civ. 8754, 1999 WL 20890 at *10 (S.D.N.Y. Jan. 19, 1999) (since trial counsel's objection would have been fruitless, "the failure to so object is not evidence of ineffective assistance of counsel"); Perez v.United States, 89 CR 800, 96 Civ. 7702, 1997 WL 661426 at *4 (S.D.N.Y. Oct. 23, 1997) ("Defense counsel's failure to object, then, cannot have resulted in actual prejudice to petitioner, as the objection would have been meritless."); United States v.Corcoran, 855 F. Supp. 1359, 1367-68 (E.D.N.Y. 1994) (where identification found not improper, "counsel's failure to pursue the motion to suppress the in-court identification clearly did not deny defendant the effective assistance of counsel."),aff'd, 100 F.3d 944 (2d Cir.), cert. denied, 517 U.S. 1228, 116 S. Ct. 1864 (1996); Arce v. Smith, 710 F. Supp. 920, 926-27 (S.D.N.Y.) (inasmuch as there was no constitutional error or reversible error under state law, petitioner was not prejudiced by counsel's failure to object and counsel was not ineffective), aff'd, 889 F.2d 1271 (2d Cir. 1989), cert. denied, 495 U.S. 937, 110 S. Ct. 2185 (1990).

Otero's habeas claim on this ground should be DENIED. 3. Trial Counsel's Failure to Request That the Jury Be Charged on Lesser Included Offenses

Otero argues that his trial counsel was ineffective for failing to request that the judge instruct the jury on attempted first degree assault as a lesser included offense of attempted first degree murder.⁶⁵ (Pet. ¶ 12(C)(8), (10)).

65 Contrary to the State's argument (Dkt. No. 13: State Br. at 34), attempted first degree assault is a lesser included offense of attempted first degree murder. See, e.g., Rosa v. Herbert, 277 F. Supp. 2d 342, 347 (S.D.N.Y. 2003) (noting that attempted first degree assault is a lesser included offense of attempted first degree murder) (citing People v. Cabassa, 79 N.Y.2d 722, 729, 586 N.Y.S.2d 234, 236, cert. denied, 506 U.S. 1011, 113 S. Ct. 633 (1992); People v. Lucious, 285 A.D.2d 968, 970, 730 N.Y.S.2d 384, 387 (4th Dep't), appeal denied, 97 N.Y.2d 657, 737 N.Y.S.2d 58 (2001); People v.Colon, 113 A.D.2d 897, 897, 493 N.Y.S.2d 614, 615 (2d Dep't 1985) ("The evidence produced at trial established beyond a reasonable doubt that defendant was guilty of . . . attempted murder in the first degree rather than the lesser included offense of attempted assault in the first degree."), appeal denied, 66 N.Y.2d 918, 498 N.Y.S.2d 1032 (1985); People v.Teasley, 73 A.D.2d 548, 548-49, 423 N.Y.2d 4, 5 (1st Dep't 1979) (holding it reversible error where the trial judge informed counsel he would charge the jury on attempted first degree murder and the lesser included offenses of attempted first degree assault and first and second degree reckless endangerment, but failed to charge the jury on the reckless endangerment counts).

Trial counsel's strategy, however, was to present a defense of misidentification. Such a defense which denies guilt is "a strategy that 'practically precludes a request for an instruction on a lesser included offense.'" Yu v. United States, 97 Civ. 2736, 1997 WL 423070 at *3 (S.D.N.Y. July 29, 1997); see also, e.g., Brown v. Rick, 01 Civ. 4310, 2003 WL 22801397 at *6 (S.D.N.Y. Nov. 25, 2003) (Counsel not ineffective for failing to inform defendant of right to request lesser included offense because such a request is a matter of strategy.); Smith v.Walsh, 02 Civ. 5755, 2003 WL 21649485 at *7 (S.D.N.Y. July 14, 2003) (Counsel not ineffective for failing to request charge on lesser included offense because such a charge "would have undermined counsel's strategy of seeking an acquittal.");Domingo v. Greiner, 99 Civ. 1906, 2002 WL 362761 at *2 (S.D.N.Y. Mar. 5, 2002) ("While with hindsight, counsel's decision not to seek a lesser included offense charge did not prove successful, his decision not to give the jury an option that could result in a compromise verdict was not unreasonable. . . . For petitioner's counsel to make an argument that petitioner should be found guilty of [the lesser included offense] would severely undermine his basic argument that petitioner should not be found guilty of any crime."); Franza v. Stinson, 58 F. Supp. 2d 124, 150 (S.D.N.Y. July 1, 1999) (Kaplan, D.J. Peck, M.J.) (counsel not ineffective for failing to agree to submit assault as alternative to attempted murder where trial counsel's strategy was to present a defense denying guilt);Vasquez v. United States, 96 Civ. 2104, 91 Cr. 153, 1997 WL 148812 at *2 (S.D.N.Y. Mar. 28, 1997) (dismissing petitioner's ineffective assistance claim because counsel's decision not to request a lesser included offense instruction was "a strategic decision that 'fit in with petitioner's overall defense theory . . .' [and] a strategic decision cannot be held to fall belowan objective standard of reasonableness' and therefore cannot satisfy the first [Strickland] prong"); Rios v. United States, No. CV-91-4384, 1992 WL 328931 at *6-7 (E.D.N.Y. Oct. 13, 1992) ("Courts have declined to find ineffective assistance of counsel where counsel pursues an exculpatory defense although such a choice practically precludes a request for an instruction on a lesser included offense. . . . The tactical decision to pursue a complete, exculpatory defense rather than a partial one enjoys substantial deference. . . . Having presented no evidence on a partial defense, counsel had no reason or basis to request an instruction on the lesser included offense."); Van Allen v.Coughlin, 90 Civ. 7342, 1991 WL 64175 at *4 (S.D.N.Y. Apr. 16, 1991) (Petitioner's "claim that [his] counsel should have included a lesser included offense charge . . . [does not] show ineffective assistance of counsel. The inclusion of a lesser offense would have cut against counsel's strategy of seeking an acquittal by discrediting the testimony of [the] victims, many of whom had attempted to extort money from [petitioner]. Therefore, counsel's decision not to include such a charge falls within the realm of lawyer competence."); Colon v. Smith, 723 F. Supp. 1003, 1008 (S.D.N.Y. 1989) ("A failure to request charges on all possible lesser included offenses may be proper trial strategy . . . and this decision therefore did not constitute ineffective assistance of counsel.").

Otero's trial counsel was not ineffective for not requesting the lesser included assault charge, and this habeas claim should be DENIED. 4. Failure to Request That the Mapp Hearing Be Reopened

Otero did not raise this claim in either of his two C.P.L. § 440 motions. Because Otero could have raised this ground in his § 440 motions, but failed to do so, this claim is procedurally barred from review.

i. The Exhaustion Doctrine: Background ⁶⁶

66 For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language similar to that in this section of this Report Recommendation, see, e.g., Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *9-10 (S.D.N.Y. July 29, 2004 (Peck, M.J.); Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *26-27 (S.D.N.Y. July 23, 2004); Del Pilar v. Phillips, 03 Civ. 8636, 2004 WL 1627220 at *10-11 (S.D.N.Y. July 21, 2004);Hernandez v. Fillion, 03 Civ. 6989, 2004 WL 286107 at *16-17 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004) (Berman, D.J.);Maldonado v. Greiner, 01 Civ. 0799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *6-9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *30-32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.), report rec. adopted, 2003 WL 22681429 (S.D.N.Y. Nov. 13, 2003) 2003 WL 22846044 (S.D.N.Y. Dec. 2, 2003) (Kaplan, D.J.); Figueroa v.Greiner, 02 Civ. 2126, 2002 WL 31356512 at *6-8 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, M.J.);Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, M.J.) (citing my prior decisions);Jordan v. LeFevre, 22 F. Supp. 2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).

Section 2254 codifies the exhaustion requirement, providing that "[a]n 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. . . ." 28 U.S.C. § 2254(b)(1)(A).⁶⁷ As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S. Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S. Ct. at 1732.

67 See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S. Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney Gen., 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S. Ct. 723 (1984).

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.

Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v.Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S. Ct. at 1732-34.

"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v.Attorney Gen., 696 F.2d at 191.⁶⁸ The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue.E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney Gen., 696 F.2d at 191. InDaye, the Second Circuit en banc stated:

68 Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S. Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S. Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir.), cert. denied, 124 S. Ct. 804 (2003); Cox v.Miller, 296 F.3d 89, 99 (2d Cir. 2002), cert. denied, 123 S. Ct. 1273 (2003); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye v. Attorney Gen., 696 F.2d at 194.⁶⁹ ii. Otero's Claim is Unexhausted But Deemed Exhausted and Procedurally Barred Because He Failed to Present It to the Trial Court in His Two Prior C.P.L. § 440 Motions

69 Accord, e.g., Cox v. Miller, 296 F.3d at 99;Ramirez v. Attorney Gen., 280 F.3d 87, 95 (2d Cir. 2001);Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S. Ct. 1112 (1997);Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.

Otero has raised the claim that his trial counsel was ineffective for failing to move to reopen the suppression hearing for the first time in his current federal habeas petition.⁷⁰

70 Otero did mention in a footnote of his first § 440 motion that his trial counsel did not request to have the Mapp hearing reopened. (Dkt. No. 12: State Answer Ex. M: 8/4/99 Otero § 440 Motion Papers ¶ 15 n. 4.) However, a mere passing reference in a footnote does not serve to adequately raise the issue for review.See, e.g., Norton v. Sam's Club, 145 F. 3d 114, 117 (2d Cir.) ("[A]n argument made only in a footnote was inadequately raised for appellate review."), cert. denied, 525 U.S. 1001, 119 S. Ct. 511 (1998).

"'For exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S. Ct. 1038, 1043 n. 9 (1989))).⁷¹ "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., McKethan v.Mantello, 292 F.3d at 122-23; Ramirez v. Attorney Gen., 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v.Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S. Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.

71 Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"); Ramirez v. Attorney Gen., 280 F.3d at 94;Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S. Ct. 1436 (1995) ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.").

In this case, Otero is now barred from raising this claim in state court because it could have been raised in his two prior C.P.L. § 440 motions, but was not.⁷² Otero has filed two separate § 440 motions in the long, winding road that his attacks on his convictions have taken, but neither § 440 motion raised this claim. As the Second Circuit explained in Washington v.James:

72 C.P.L. § 440.10(3) states, in pertinent part:

3. Notwithstanding the provisions of subdivision one, the court may deny a motion to vacate a judgment when:

. . . .

(c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so.

Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.

. . . .

As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.

996 F.2d at 1446-47.⁷³ The result is the same where a petitioner brought a C.P.L. § 440 motion and failed to include the current claim in it, such that the claim would be barred pursuant to C.P.L. § 440.10(3)(c). See, e.g., Hernandez v.Goord, No. 02-CV-3807, 2003 WL 23199521 at *14 (E.D.N.Y. Nov. 12, 2003) (Weinstein, D.J.) (where trial court, in considering petitioner's second § 440 motion, dismissed petitioner's ineffective assistance of counsel claim pursuant to § 440.10(3)(c) because he had failed to raise it in his first § 440 motion, petitioner therefore was procedurally barred from raising it in his habeas petition); Caicedo v. Garvin, No. 95 CV 3896, 1999 WL 221648 at *2 (E.D.N.Y. Apr. 9, 1999) (claim of ineffective of assistance of counsel that was not raised in petitioner's C.P.L. § 440 motion was unexhausted but deemed exhausted and procedurally barred because C.P.L. § 440.10(3)(c) would bar further state court review).⁷⁴

73 See also, e.g., Jones v. Keane, 329 F.3d at 296 ("[Petitioner] has procedurally defaulted his vagueness claim since New York's procedural rules now bar [petitioner] from raising it in New York courts. Further direct review by the Court of Appeals is no longer available. . . ."); Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added).

74 Indeed, Justice Stone denied Otero's most recent C.P.L. § 440 motion pursuant to C.P.L. § 440.10(3)(c). (8/5/04 Stone Decision at 5.)

To avoid such a procedural default, Otero would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claims will result in a 'fundamental miscarriage of justice,'" i.e., a showing of "actual innocence." Harris v. Reed, 489 U.S. at 262, 109 S. Ct. at 1043 (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S. Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d at 415; Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Here, Otero has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of this claim is procedurally barred. 5. Trial Counsel's Aggregate Performance Was Not Ineffective and Did Not Prejudice Otero

As noted above (see page 65 above), any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v.Washington, 466 U.S. 668, 695-96, 104 S. Ct. 2052, 2069 (1984)); (see page 65 above).

Strickland, of course, teaches that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id.

Even if Otero's trial counsel's actions resulted from error rather than strategy, trial counsel's performance must still be accorded a certain degree of deference, as the Sixth Amendment does not guarantee "error-free, perfect representation," Morris v. Garvin, No. 98-CV-4661, 2000 WL 1692845 at *3 (E.D.N.Y. Oct. 10, 2000), but merely a "wide range of professionally competent assistance," Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065. Otero must show that trial counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v.Washington, 466 U.S. at 687, 104 S. Ct. at 2064; see, e.g., Smith v. Robbins, 528 U.S. 259, 284, 120 S. Ct. 746, 763 (2000) ("'We address not what is prudent or appropriate, but only what is constitutionally compelled.'") (quoting United States v. Cronic, 466 U.S. 648, 665, n. 38, 104 S. Ct. 2039, 2050 n. 38 (1984)); Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 3126 (1987) (same); United States v. Di Tommaso, 817 F.2d 201, 216 (2d Cir. 1987) (although, "[t]o put it charitably," trial counsel's performance did not "furnish a full model for aspiring advocates," it did not fall outside the "wide range of reasonable professional assistance"); Wise v. Smith, 735 F.2d 735, 739 (2d Cir. 1984) (defendant "was not entitled to a perfect defense, and the cumulative effect of the errors and omissions that we might find do not amount to a denial of effective assistance of counsel").⁷⁵

75 See also, e.g., Castro-Poupart v. United States, No. 91-1877, 976 F.2d 724 (table), 1992 WL 240655 at *2 (1st Cir. Sept. 30, 1992) ("Effective assistance is not necessarily error free assistance.); Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) ("petitioner was not entitled to error-free representation, only representation that fell within the range of competence demanded of attorneys in criminal cases"); Smalls v.McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *__ (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *63 (S.D.N.Y. June 3, 2003) (Peck, M.J.);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *26 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.);Solomon v. Comm'r of Corr. Servs., 786 F. Supp. 218, 226 (E.D.N.Y. 1992) ("Although petitioner's counsel undoubtedly made certain errors, this record indicates that viewed in the context of the entire record, he did a reasonable job.").

The Court has read the entire trial transcript. Judged in context and without the benefit of hindsight, trial counsel's performance as a whole did not constitute ineffective assistance in violation of Otero's Sixth Amendment rights. Moreover, applying the deferential AEDPA standard, this Court cannot say that the § 440 court's and First Department's rejection of Otero's ineffective counsel claims constituted an objectively unreasonable application of Supreme Court precedent. See, e.g., Jones v. Stinson, 229 F.3d 112, 121 (2d Cir. 2000) (although the Second Circuit might have found error had question been presented on direct review, under deferential AEDPA standard the appellate division's ruling was held not objectively unreasonable).

Even assuming arguendo that Otero's complaints about trial counsel had merit (which they do not), he cannot establish prejudice. Otero's counsel faced an up-hill battle to try to overcome the evidence against Otero. Within minutes of the crime, Otero was captured and Gervasio Rivera identified Otero as the "mugger" and Gervasio and Detectives Hernandez and Harris identified Otero as one of the persons who shot at them. Otero was arrested near the area where Detective Hernandez lost sight of him. Otero was arrested with the exact same amount of cash in his pocket as had been stolen from Gervasio Rivera, and the blue t-shirt which witnesses said the shooter was wearing was found in a dumpster at the gas station where Otero was arrested. Otero's testimony that despite debts, he was taking $700 to pay six or seven months advance rent on storage rooms was not very credible. The evidence against Otero at trial thus was quite strong.

Otero's claims of ineffective assistance of trial counsel should be DENIED in their entirety.⁷⁶ C. Otero's Ineffective Assistance of Appellate Counsel Claim Should Be Denied

76 Federal habeas relief is not available for claims of procedural defects in state post-conviction proceedings. Jones v. Duncan, 162 F. Supp. 2d 204, 217-18 (S.D.N.Y. 2001) (Peck, M.J.) ("All the circuits that have considered the issue, except one, have held that 'federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings.'") (quoting Franza v. Stinson, 58 F. Supp. 2d 124, 151 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.) citing other cases). Otero's claim that the § 440 court erred in denying him an evidentiary hearing (Pet. ¶ 12(C)(15)) thus is not cognizable on habeas review.

Otero claims that he received ineffective assistance of his appellate counsel because she: (1) refused to raise the issue of ineffective assistance of trial counsel on appeal (Pet. ¶ 12(D)(3)-(4), (7)); (2) failed to "make the diligent efforts to research the records and submit the law that would have supported the allegations as to the issues raised in the instant application" (Pet. ¶ 12(D)(4)); and (3) refused to bring non-frivolous issues "to the attention of the court" (Pet. ¶ 12(D)(5)-(6)).⁷⁷ 1. Failure to Argue Ineffective Assistance of Trial Counsel

77 Otero's most recent coram nobis petition was denied by the First Department. (6/24/04 1st Dep't Order.) Otero has not sought leave to appeal to the New York Court of Appeals nor does he intend to do so. (10/29/04 Dilmaghani Letter; 11/1/04 A.D.A. Gadlin Letter.) Otero is now time-barred from seeking leave to appeal because it has been more than thirty days since the First Department's decision. See C.P.L. § 460.10(5)(a); see also Castro v. Fisher, 04 Civ. 0346, 2004 WL 1637920 at *26 (S.D.N.Y. July 23, 2004) (Peck, M.J.) ("'In 2002, the New York Criminal Procedure Law was amended to allow permissive appeals to the New York Court of Appeals from the denial of coram nobis petitions.'") (quoting McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *12 n. 14 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.) (citing C.P.L. § 450.90(1))). While normally, Otero would be procedurally barred from raising the ineffective assistance of counsel claims that were raised in this latest coram nobis petition, since they were duplicative of the claims made in his earlier coram nobis application, they are not deemed procedurally barred and are reviewed herein on the merits.

Otero argues that his appellate counsel provided ineffective assistance because she failed to allege on appeal claims of ineffective assistance of trial counsel. (Pet. ¶ 12(D)(3)-(4), (7).) This claim fails for two reasons. First, trial counsel was not ineffective. (See Point IV. B above.) Second, claims of ineffective trial counsel usually are brought not on direct appeal but via a collateral C.P.L. § 440 motion, and counsel is appointed for the direct appeal but need not bring a collateral § 440 motion for a defendant.⁷⁸ "'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 judgement 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.'"Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *17 n. 36 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.) (quoting Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N.Y. 1987)), report rec. adopted, 2004 WL 555722 (S.D.N.Y. Mar. 19, 2004); accord, e.g., Smalls v.McGinnis, 2004 WL 1774578 at *32.

78 See, e.g., Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *32 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *16 (S.D.N.Y. July 29, 2003) (Peck, M.J.) (Appointed appellate counsel is not required to bring a C.P.L. § 440 motion for petitioner.).

2. Failure to Abide By Requests Made By Otero To Bring Certain Claims

While Otero makes general claims that his appellate counsel refused to bring the claims that he wanted, he does not specify to which "non-frivoluous" claims he is referring. However, in a letter dated June 30, 1995, Otero's appellate counsel informed him of the arguments she planned to make on appeal as well as why she had decided not to make certain arguments. (See Ex. I: Otero 1997 Coram Nobis Papers Ex. A: 6/30/95 Nathanson Letter to Otero.) In this letter, appellate counsel informed Otero that she was not intending to argue that his arrest had been illegal because the evidence adduced at the suppression hearing demonstrated that it had, in fact, been legal. (Id.) Further, appellate counsel recognized that the evidence at trial showed that Detective Ortiz had gotten a different description than the one she testified to having received at the suppression hearing, but since trial counsel had not moved to reopen the hearing, she could not raise the issue on appeal. (Id.) Next, appellate counsel wrote that she did not intend to make a sufficiency of the evidence argument because the evidence was sufficient to support the verdict. (Id.) Finally, appellate counsel decided not to raise the issue that Detective Hernandez had approached the defense witnesses before trial as there was no claim nor evidence that the behavior actually discouraged any witnesses from testifying. (Id.)

The decision of which claims to raise on appeal is within the discretion of appellate counsel. In fact, as the Supreme Court and the Second Circuit have held, appellate counsel should not raise every non-frivolous claim on appeal. (See page 67 above) Here, appellate counsel clearly used her discretion to decide which arguments should be made on appeal and which arguments, because of their weaknesses (or because they could only be made via a § 440 motion rather than via appeal), should be left out. Appellate counsel was not ineffective for making these strategic decisions.

3. Failure to Research Record and the Applicable Law

Otero's claim that appellate counsel failed to research the record and the applicable law is, again, vague and conclusory, and as such, does not meet the "rigorous" standard ofStrickland. (See pages 66-68 above.) Otero's appellate counsel submitted a forty-page brief which cited to the record and cited relevant law for each argument presented. (Ex. A: Otero 1st Dep't Br.)

CONCLUSION

For the reasons discussed above, Otero's habeas petition should be DENIED, and a certificate of appealability should not issue.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Harold J. Baer, Jr., 500 Pearl Street, Room 2230, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Baer. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).