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Stapleton v. Greiner

United States District Court, E.D. New York
Jul 10, 2000
98 CV-1971 (RR) (E.D.N.Y. Jul. 10, 2000)

Opinion

98 CV-1971 (RR)

July 10, 2000.

Caesar Stapleton, Petitioner Pro Se

Sholom J. Twersky, Marie-Claude Wren, THE HONORABLE CHARLES J. HYNES DISTRICT ATTORNEY OF KINGS COUNTY, Assistant District Attorneys, Attorneys for Respondents.


Memorandum and ORDER


Caesar Stapleton, proceeding pro se, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1994 Supp. 2000). Stapleton was convicted on June 24, 1991, after a jury trial in kings County of Rape in the First Degree, see N.Y. Penal law § 103.35[1] (McKinney 1998). Sodomy in the First Degree, see N.Y. Penal law § 103.50[1] (McKinney 1998), and two counts of Assault in the Second Degree, see N.Y. Penal Law § 120.05[2] (Mckinney 1998). He is presently incarcerated serving eight and one-third to twenty-five years for rape, a consecutive term of eight and one-third to twenty-five years for sodomy, and concurrent terms of two and one-third to seven years for each assault charge.

The petition named then-Attorney General Dennis C. Vacco a respondent. As Elliot Spitzer has succeeded Mr. Vacco in that office, the court substitutes Mr. Spitzer as respondent for Mr. Vacco. See Fed.R.Civ.P. 25(d)(1).

A liberal reading of petitioner's papers suggests that he is challenging his conviction before this court on the grounds that (1) the trial court erroneously admitted evidence procured in violation of the Fourth Amendment; (2) a stricken reference to uncharged bad acts deprived him of due process; (3) limitations on his attorney's cross-examination of the crime victim violated due process; (4) he was denied his constitutional right to a public trial; (5) erroneous jury instructions violated due process; (6) prosecutorial misconduct in offering perjured testimony denied him a fair trial; and (7) both his trial and appellate attorneys were constitutionally ineffective.

Respondent opposes the petition on the grounds that many of the claims are procedurally barred from federal review having been resolved against Stapleton on independent and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 750 (1991) (holding that procedural default of a claim under state law can bar federal review unless petitioner shows both good cause to excuse the default and ensuing prejudice or a fundamental miscarriage of justice such as the conviction of a person who is actually innocent); accord Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). Having carefully reviewed the record of state proceedings, this court finds that the state courts did not clearly indicate whether their rejections of petitioner's claims were based on procedural default or lack of merit. In general, this court need not linger over the procedural issue. Assuming that petitioner could clear this hurdle, all but one of his claims would have to be rejected on the merits. The single exception concerns petitioner's claim that his trial counsel was ineffective in failing to secure expert witnesses. For the reasons discussed herein, the court will explore this issue further at a hearing.

Factual Background

1. The Attack on Lizzette Rodriguez

On December 5, 1988, Lizzette Rodriguez was brutally assaulted, raped, and sodomized by petitioner, Caesar Stapleton. As the principal prosecution witness against Stapleton, Ms. Rodriguez testified that she became romantically involved with petitioner in 1987, when she was 17-years old. Because Stapleton was then married with five children, he and Ms. Rodriguez carried on their amorous relationship at various apartments rented by petitioner. One of these was located in the basement of 1353 Myrtle Avenue in Brooklyn, the very building where Stapleton resided with his family. In November 1988, Ms. Rodriguez ended her affair with Stapleton and left Myrtle Avenue to return to her mother's home.

A few weeks later, on the evening of December 5, 1988, Stapleton approached Ms. Rodriguez on the street and, on the pretext that he needed a baby-sitter for his children, lured her back to Myrtle Avenue. Once in the basement apartment, Stapleton accused Ms. Rodriguez of leaving him for another man. She denied the charge, prompting Stapleton to push her to the floor and to kick and punch her. He then handcuffed her around a pole, gagged her mouth, ripped off her clothes, and proceeded to assault and threaten her for several hours. Among other things, Stapleton whipped Ms. Rodriguez with an electric cord, stuck heated straight pins into her legs, and burned parts of her body with cigarettes and a lit paper bag. At various times, he threatened to subject her to a homosexual assault and to abuse her sexually with the neck of a wine bottle. In the end, he raped and sodomized her.

Twice during this ordeal, Ms. Rodriguez managed to free herself from one of the handcuffs while Stapleton was out of the basement. The first time she did this, Stapleton quickly foiled her escape attempt, beat her, and again secured her to the pole with another pair of handcuffs. The second time Ms. Rodriguez broke free, she successfully fled the building and sought refuge in a nearby bodega.

Juan Hernandez, the owner of the bodega, testified that when Ms. Rodriguez appeared in his store, she was naked except for a dark top and two sets of handcuffs. She was plainly hysterical, and bruises and blood were visible on her face and body. Hernandez gave Ms. Rodriguez a man's jacket to cover herself and called the police.

Meanwhile, Ms. Rodriguez flagged down a police car and reported her attack to Lt. Steven O'Brien. The officer testified that Ms. Rodriguez was bruised and black and blue when he first saw her, with notable red marks around her wrists. She was also sobbing and having difficulty speaking coherently. Eventually, Lt. O'Brien escorted Ms. Rodriguez back to Myrtle Avenue, but neither Stapleton nor Ms. Rodriguez's clothes could be found there.

Thereafter, Officer Ismael Hernandez took Ms. Rodriguez to Woodhull Hospital where the two pairs of handcuffs were cut from her wrists. Ms. Rodriguez's sister, Madelyn Marcano, soon arrived at the hospital. Both Officer Hernandez and Ms. Marcano testified that bruises, scratches, and blood were visible on various parts of Ms. Rodriguez's body. Ms. Marcano also pulled a pin from her sister's leg and gave it to one of the doctors. Ms. Rodriguez testified that she told the emergency room doctor that she had been beaten, but could not recall saying that she had been raped. Thus, Dr. Jean Fleurantin testified that when he examined Ms. Rodriguez on December 5, 1988, he diagnosed blunt trauma to the chest and abdomen but did not perform any gynecological examination.

On the night of December 5, 1988, Ms. Rodriguez also spoke with Police Detectives Michael Russell and Michael Gomez, who proceeded to Myrtle Avenue where, with the consent of Iris Stapleton, petitioner's wife, they entered the basement apartment and recovered a wine bottle, six straight pins, and some white tape, all of which were offered into evidence.

This search was the subject of a pre-trial suppression hearing at which Mrs. Stapleton denied giving the officers her consent to enter the apartment. The state judge, after hearing the conflicting testimony and assessing the credibility of the witnesses, rejected Mrs. Stapleton's account and credited that of the police.

The following day, December 6, 1988, Ms. Rodriguez again spoke with Detective Russell and first reported that she had been raped and sodomized. She was subsequently interviewed by Detective Louis Hernandez, to whom the investigation was formally assigned. He testified to seeing bruises on Ms. Rodriguez's face, wrists, and upper body, photographs of which were received in evidence. He also noticed small hole marks in her thigh.

2. The Defense Case

The crux of the defense case was that petitioner was not at 1353 Myrtle Avenue on the evening of December 5, 1988, and that Ms. Rodriguez was falsely accusing him of rape. Petitioner's wife testified that her husband had left their home at approximately 5:00 P.M. with one of their children and a friend, Basilio Ramos. As the prosecution noted, this was at odds with her statement to the police on December 5, 1988, that she had not seen her husband at all on the day of the charged crimes. Nevertheless, her trial testimony was somewhat corroborated by Joseph Castillo, who testified that Stapleton, his son, and Basilio Ramos came to his home at approximately 7:30 P.M. so that Ramos could collect money owed by Castillo.

Mrs. Stapleton and Joseph Castillo further testified that Lizzette Rodriguez was infatuated with petitioner and that in the months before December 5, 1988, they had frequently heard her threaten to report him to the police if he ever broke off their affair. The court would not, however, allow Mrs. Stapleton to testify about a purported telephone conversation among Lizzette Rodriguez, petitioner, and herself, sometime after the charged crimes, during which Mrs. Stapleton recalled Ms. Rodriguez saying that the reason she was making accusations against petitioner was because she still loved him and did not want him to go back to his wife. Mrs. Stapleton and one of her daughters were permitted to testify to the events of December 6, 1988, the day after the charged crimes, when they saw Ms. Rodriguez and members of her family come to Myrtle Avenue and throw Molotov cocktails at the Stapletons' building.

Also testifying for the defense were petitioner's neighbor, Angela Sierra, and his co-worker, Justino Cruz, both of whom stated that they were at the Stapleton home for parts of the evening of December 5, 1988, and that Stapleton was never there. Cruz testified that at one point in the evening he went to the basement to retrieve some musical equipment. He reported seeing Ms. Rodriguez in a room drinking with two unknown men. This was consistent with testimony from Joseph Castillo that he had frequently seen Ms. Rodriguez in the company of other men and that she and petitioner frequently fought about this subject.

3. Verdict and Direct Appeal

The jury found Stapleton guilty of first degree rape, first degree sodomy, and two counts of second degree assault.

Represented by new counsel on appeal, the Legal Aid Society, petitioner challenged his conviction on the ground that (1) the introduction of uncharged bad acts deprived him of a fair trial. Stapleton also filed a pro se supplemental brief claiming that (2) the trial court had erroneously denied his motion to suppress evidence recovered from the Myrtle Avenue basement apartment; (3) the prosecution had failed to disclose psychological records of the victim, as required by Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961); (4) the government had relied on perjured testimony from Lizzette Rodriguez to satisfy its burden of proof; and (5) there was prosecutorial misconduct in summation.

On May 16, 1992, the Appellate Division, Second Department, rejected these claims on the merits and affirmed Stapleton's conviction. See People v. Stapleton, 204 A.D.2d 580, 612 N.Y.S.2d 178 (2d Dep't 1994). On September 28, 1994, the New York Court of Appeals denied Stapleton's motion for leave to appeal from this decision. See People v. Stapleton, 84 N.Y.2d 872, 618 N.Y.S.2d 18 (1994) (Ciparick, J.).

4. First § 440 Motion

While his appeal was pending, Stapleton filed a pro se motion pursuant to N.Y. Crim. Proc. Law § 440.10 (McKinney 1994) to vacate his conviction on the ground that (1) he had been denied effective assistance of trial counsel in no less than thirty respects. He subsequently amended the motion to add the claim that (2) the prosecution had failed to meet its disclosure obligations under Brady and Rosario. The trial court denied this motion on May 12, 1994. See People v. Stapleton, No. 8904/89 (N.Y.Sup.Ct. Kings Co. May 12, 1994). Addressing itself exclusively to the Sixth Amendment claim, the court found generally that the vast majority of petitioner's complaints about his trial counsel concerned matters that were part of the trial record. As such, they were properly raised on direct appeal and procedurally barred from § 440 review. In the alternative, the court found that petitioner's claims about his attorney were either vague, ambiguous, or without sufficient factual support to satisfy the standard set by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, they were rejected as without merit.

On December 5, 1994, the Appellate Division denied Stapleton's motion for leave to appeal the denial of his § 440 motion. See People v. Stapleton, No. 94-097 16 (2d Dep't Dec. 5, 1994). Petitioner then filed a notice of appeal with the Court of Appeals, which application was dismissed. See People v. Stapleton, Ind. No. 89-4/89 (N.Y. Dec. 27, 1994) (Ciparick, J.); N.Y. Crim. Proc. Law § 450.90(1) (McKinney 1994).

5. Coram Nobis Motion

In October 1994, Stapleton also challenged his conviction by moving for a writ of error coram nobis on the ground that he had been denied effective assistance of appellate counsel. The motion was denied as without merit on December 12, 1994. See People v. Stapleton, 210 A.D.2d 358, 620 N.Y.S.2d 275 (2d Dep't 1994). Petitioner's request for leave to appeal was dismissed on January 10, 1995, the Court of Appeals finding that the Appellate Division ruling was not appealable under N.Y. Crim. Proc. Law § 450.90(1) (McKinney 1994). See People v. Stapleton, 84 N.Y.2d 1039, 623 N.Y.S.2d 195 (1995) (Ciparick, J.).

Undeterred, Stapleton promptly filed another coram nobis petition on January 24, 1995, which the Appellate Division treated as a motion for reconsideration. This motion was denied on April 4, 1995. See People v. Stapleton, No. 91-06759 (2d Dep't April 4, 1995). Once again, petitioner sought leave to appeal to the New York Court of Appeals. That court again dismissed the application pursuant to N.Y. Crim. Proc. Law § 450.90(1). See People v. Stapleton, 85 N.Y.2d 943, 627 N.Y.S.2d 1005 (1995) (Ciparick, J.).

Stapleton moved to renew his application for reconsideration on July 31, 1997. The motion was denied on December 1, 1997, see People v. Stapleton, 245 A.D.2d 319, 667 N.Y.S.2d 264 (2d Dep't 1997), and the Court of Appeals dismissed petitioner's motion for leave to appeal pursuant to N.Y. Crim. Proc. Law § 450.90(1),see People v. Stapleton, 91 N.Y.2d 881, 668 N.Y.S.2d 579 (1997) (Ciparick, J.).

6. Second and Third § 440 Motions

In papers dated January 23, 1997, Stapleton filed a second motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. Petitioner complained that (1) he had been denied his right to a public trial, and (2) errors in the jury charge had denied him a fair trial. Before the court could rule on this application, Stapleton filed a third motion pursuant to § 440.10 on May 15, 1997. In this submission, he argued that (1) the prosecution had procured his conviction by misrepresentation and fraud; (2) limitations on his ability to cross-examine Ms. Rodriguez violated both New York's Rape Shield Law see N.Y. Crim. Proc. Law § 60.42[1], [3] (McKinney 1992), and his federal constitutional rights to confront witnesses and have a fair trial; and (3) the imposition of consecutive sentences for rape and sodomy was illegal. The motions were summarily denied on October 20, 1997, the trial court noting that there was no merit to the claims and that petitioner had exhausted all remedies available to him on his direct appeal. See People v. Stapleton, No. 8904/89 (N.Y.Sup.Ct. Kings Co. Oct. 20, 1997).

The record before this court indicates that petitioner did seek leave to appeal this denial, but was unable to do so because of procedural difficulties encountered in securing a copy of the actual order. In seeking to resolve the situation, petitioner wrote in December 1997 to the Clerk of the Supreme Court in Brooklyn, Administrative Judge Ronald J. Aiello, and Court of Appeals Chief Judge Judith S. Kaye and Associate Judge Carmen Beauchamp Ciparick. See Correspondence attached to Petition for Writ of Habeas Corpus. In light of this record, respondent raises no exhaustion challenge to the petition.

7. Habeas Corpus Petition

In papers dated March 5, 1998, Stapleton petitioned this court for a writ of habeas corpus.

Discussion

I. Standard of Review

This court's review of Stapleton's petition is governed by the standards articulated in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 100 Stat. 1214, 1220 (1996), which significantly amended the federal habeas corpus statute, 28 U.S.C. § 2254. Subsection (d) of § 2254 now provides:

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

Recently, the Supreme Court provided some guidance for lower courts in applying these statutory standards, particularly subpart (1). In Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000), Justice O'Connor, writing for the Court, stated that the phrase "clearly established Federal law, as determined by the Supreme Court of the United States" should be understood to refer to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." The Court then identified two circumstances under which a state court decision could be deemed "contrary to" clearly established Federal law: when the state court (1) "arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law," or (2) "decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. As to the alternative "unreasonable application" clause, the Court held that habeas relief was warranted only "if the state court identifies the correct governing legal principle from [Supreme Court] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The Court ruled that reasonableness was to be assessed objectively rather than subjectively. See id. at 1521-22. Moreover, whatever difficulty there might be in defining the term "unreasonable," courts were cautioned that "an unreasonable application of federal law" did not equate with "an incorrect application of federal law." Id. at 1522. For this reason, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id.

Applying these principles to this case, it is apparent that petitioner is not entitled to federal habeas relief.

II. Use of Evidence Seized from Myrtle Avenue Basement

Stapleton submits that the state court's refusal to suppress evidence seized in a warrantless search of the Myrtle Avenue basement apartment violated his Fourth Amendment rights. In fact, the Supreme Court has erected a substantial barrier to federal habeas review of Fourth Amendment claims. In Stone v. Powell, 428 U.S. 465 (1976), it ruled that

where the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Id. at 481-82. Thus, the issue for this court is not whether it agrees or disagrees with the state judge's ruling on the challenged search. Before this court can even reach petitioner's Fourth Amendment claim, Stapleton must show that New York did not provide an opportunity for full and fair litigation of the issues. See Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992);McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983); Gates v. Henderson, 568 F.2d 830, 839-40 (2d Cir. 1977) (en banc). Petitioner cannot satisfy this burden.

Section 710 of New York's Crim. Proc. Law (McKinney 1984 Supp. 1988) clearly provided Stapleton with the opportunity to move for the suppression of unlawfully seized evidence. That procedure has been approved as facially adequate by federal courts in this Circuit. See Capellan v. Riley, 975 F.2d at 70 n. 1 (and cases cited therein). Nothing in the record indicates that there was any "unconscionable breakdown" in this otherwise adequate state process when applied to Stapleton's case. See id. (discussing extraordinary circumstances that would qualify as an "unconscionable breakdown"). To the contrary, it appears that the state court found the warrantless search "reasonable" under the Fourth Amendment only after holding a full evidentiary hearing on the issue of whether there had been a consent to search. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (consensual searches are an exception to Fourth Amendment warrant requirement);accord McCardle v. Haddad, 131 F.3d 43, 48 (2d Cir. 1997).

Under these circumstances, not only can Stapleton not show that he was denied a full and fair opportunity to litigate his claim, he cannot show that the court's decision was "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254 (2). Petitioner's Fourth Amendment claim is denied.

III. Uncharged Bad Acts

Stapleton submits that he was denied due process when the trial court refused to declare a mistrial after Lizzette Rodriguez volunteered information about uncharged bad acts committed by petitioner. Specifically, Ms. Rodriguez testified that when petitioner pressed her as to whether she had left him for another man, she told him she had broken off their relationship because she "couldn't take the beatings anymore." Trial Tr. at 82. In response to a defense objection, the court promptly struck this testimony from the record, but declined to grant a mistrial.

Apparently, there had been a pre-trial ruling that the prosecution would not be allowed to ask Ms. Rodriguez about prior physical assaults by petitioner. At the sidebar held after Ms. Rodriguez made the remark at issue, the prosecutor reported that she had cautioned the witness not to testify about such matters, and the court apparently accepted this representation. See Trial Tr. at 85.

A state trial court's rulings regarding evidentiary matters will generally not implicate federal due process unless an error is committed that is sufficiently serious to deny petitioner his fundamental right to a fair trial. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); accord Blisset v. LeFevre, 924 F.2d 434, 439 (2d Cir. 1991). Rulings with respect to uncharged crimes or similar act evidence rarely rise to this level since federal and state trial courts enjoy considerable discretion in deciding when such evidence is properly placed before a jury. See generally United States v. Bok, 156 F.3d 157, 165 (2d Cir. 1998) (trial judge's rulings on uncharged crime evidence will not be disturbed on appeal unless they were "arbitrary or irrational").

In this case, the trial court did not permit the jury to consider Ms. Rodriguez's testimony regarding past alleged assaults by the defendant. Her statements on this subject were struck, and the jury was specifically advised in the court's closing instructions that stricken evidence was to be disregarded during deliberations. Courts "presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987). This principle applies to instructions that a jury disregard inadmissible references to uncharged crimes. See. e.g., United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993) (jury presumed to follow instruction that it not consider stricken tape recording referring to uncharged firearms); see also People v. Santiago, 52 N.Y.2d 865, 866, 437 N.Y.S.2d 75, 76 (1981) (instruction that jury disregard uncharged crime evidence adequate to cure error). Such instructions are particularly appropriate where, as here, the inadmissible statement forms only a small and easily isolated portion of a witness's testimony. In such cases, a jury is not required "to perform olympian mental gymnastics" to follow the instruction. United States v. Paone, 782 F.2d 386, 395 (2d Cir. 1986); see also Greer v. Miller, 483 U.S. at 766 n. 8 (due process implicated only if there is an "overwhelming probability" that the jury will not be able to follow court's instructions (quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)).

Because the court's decision to strike the uncharged bad act evidence and its subsequent instruction to the jury were adequate to protect Stapleton's right to a fair trial, his due process complaint that he was entitled to a mistrial is rejected as without merit.

IV. Limitations on Use of Tape Recording and Related Cross Examination

Stapleton submits that he was denied his due process right to a fair trial and his Sixth Amendment right of confrontation by trial court rulings that prevented him from putting a certain tape recording into evidence and restricted his cross-examination of Ms. Rodriguez pursuant to New York's Rape Shield Law. See N.Y. Crim. Proc. Law § 60.42.

As already noted in connection with the last point considered by this court, habeas corpus is not warranted every time a state trial judge makes an erroneous evidentiary ruling. Due process is violated only if an evidentiary error is so serious as to violate a petitioner's fundamental right to a fair trial. See Estelle v. McGuire, 502 U.S. at 71-72; accord Blisset v. LeFevre, 924 F.2d at 439. That, is not this case.

The tape at issue purported to record a conversation between petitioner and Ms. Rodriguez occurring in late January 1990. On the tape, the male participant does most of the talking, commenting at length and in very negative ways about the female's family, her drug use, and her relationship with men. Neither speaker refers to the charged rape. The defense proposed to play the tape at trial and thereafter to question Ms. Rodriguez regarding her relationship with various men referred to thereon.

Precisely because the female speaker on the tape says so little, it appears that Stapleton's real purpose in offering the recording was to broadcast to the jury his own attack on the witness's character. Plainly, a defendant cannot offer his own hearsay statements to achieve this end. See People v. Weston, 249 A.D.2d 496, 496, 671 N.Y.S.2d 518, 518-19 (2d Dep't 1998) (defendant's self-serving videotaped statement inadmissible when offered in his favor).

At a pre-trial hearing regarding the admissibility of the recording, Ms. Rodriguez specifically denied that she was the woman whose voice was overheard. This raised a serious question as to how the tape would be authenticated for the jury. The defense did not intend to have Stapleton testify at trial nor did it proffer any other authenticating witness. Instead, counsel proposed to play the conversation — which was in Spanish — and to allow the jury to decide if Ms. Rodriguez was one of the participants. The trial court rejected this suggestion. This ruling was neither erroneous under New York law nor at odds with clearly established federal law as stated by the Supreme Court.

For a tape recording to be admitted in a New York trial, the proponent is required to offer proof of authenticity. See People v. Ely, 68 N.Y.2d 520, 527, 510 N.Y.S.2d 532, 536 (1986). Authenticity can be established in a variety of ways depending upon the circumstances of the particular case: (1) by eliciting testimony from a participant in the conversation that the recording is a complete and accurate reproduction of the conversation, (2) by eliciting similar testimony from a witness to the conversation or to its recording, (3) by proffering participant testimony together with that of an expert whose analysis reveals no alterations, and (4) by establishing an unbroken chain of custody. Id. at 527-28, 510 N.Y.S.2d at 536-37. In this case, since Ms. Rodriguez was not prepared to authenticate the tape, it was incumbent upon Stapleton to meet his burden in some other way. He did not do so. His attorney simply proposed to have the jury make a voice comparison. While this may be a permissible way of establishing identity in some cases, see United States v. Sliker, 751 F.2d 477, 499-500 (2d Cir. 1984) (holding that jury could compare voice on tape with that of witness on the stand), "identity and authenticity are separate facets of the required foundation, both of which must be established," People v. Ely, 68 N.Y.2d at 528, 510 N.Y.S.2d at 537 (emphasis added). In Ely, a defendant admitted that the voice on a tape was hers, nevertheless, the Court of Appeals ruled that more was required to receive the tape since the circumstances raised broader questions about its fairness and accuracy.

In Stapleton's case, there were similar reasons to question authenticity. For example, the defense conceded that the conversation had not been recorded continuously. At the pre-trial hearing, petitioner testified that he had periodically stopped and re-started the tape recorder whenever he perceived there to be noisy distractions in the vicinity of his meeting with Ms. Rodriguez. How he managed these maneuvers without alerting Ms. Rodriguez was never explained, much less what was said during the parts of the conversation that were thus not preserved on tape. Similarly perplexing was the fact that the recording apparently begins with an introduction by petitioner's wife outlining what would follow. Confronted with such curious circumstances, the trial court acted well within its discretion in refusing to receive the tape recording in evidence without proper identification. The ruling did not deny petitioner due process of law.

Stapleton further complains that the trial court impermissibly limited his attorney's ability to cross-examine Ms. Stapleton about her sexual relations with other men. In fact, New York's Rape Shield Law gives a trial judge broad discretion to limit such examination when the evidence would be more distracting than probative. See N.Y. Crim. Proc. Law § 60.42. The Supreme Court has ruled that such shield laws do not, on their face, violate a defendant's right to confront witnesses or present a defense, see Michigan v. Lucas, 500 U.S. 145, 151-52 (1991), and the Second Circuit has reached the same conclusion in rejecting a constitutional challenge to the New York statute, see Agard v. Portuondo, 117 F.3d 696, 702-03 (2d Cir. 1997), rev'd on other grounds 120 S.Ct. 1119 (2000).

In any event, Stapleton was hardly prejudiced by the rulings. Even without the tape recording and even with the limitations placed on the cross-examination of Ms. Rodriguez, the defense took every opportunity to elicit from other witnesses suggestions that Ms. Rodriguez was purportedly involved with many other men both in the Myrtle Avenue apartment and elsewhere.

After carefully reviewing the entire record, the court is satisfied that neither the exclusion of the tape nor any limitations on the cross-examination of Ms. Rodriguez denied petitioner his due process right to present his defense nor his right to confront witnesses.

V. Denial of Public Trial

Stapleton submits that his conviction was obtained in violation of his Sixth Amendment right to a public trial. See Duncan v. Louisiana, 391 U.S. 145, 148 n. 10 (1968) (holding that Fourteenth Amendment extends Sixth Amendment right to public trials to state proceedings). He complains that the courtroom was closed during voir dire and the jury charge, thereby preventing family and friends from attending those portions of his trial.

Both a criminal defendant and the public at large have a strong interest in open trials. Such proceedings can "improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public the opportunity to observe the judicial system." Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979). Nevertheless, the right to a public trial is not absolute. The Supreme Court has specifically ruled that closure is constitutionally permissible, even over defense objection, when certain conditions are satisfied. See Waller v. Georgia, 467 U.S. 39, 48 (1984) ((1) the party seeking closure must advance an overriding interest that is likely to be prejudiced by open proceedings, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closure, and (4) adequate factual findings must support the closure); accord English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998); Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997) (en banc).

Further, a defendant can waive his right to a public trial. Indeed, the right can be waived by failing to object when closure is apparent. See Levine v. United States, 362 U.S. 610, 619-20 (1960) (rejecting challenge to contempt adjudication made in closed proceeding where defendant had not requested that courtroom be opened to the public); Martineau v. Perrin, 601 F.2d 1196, 1198-1200 (1St Cir. 1979) (defendant who failed to object when he realized courtroom had been inadvertently locked during trial thereby waived right to public trial); Vineski v. Scully, 1993 U.S. Dist. LEXIS 930, at *14 (S.D.N.Y. Jan. 28, 1993) (defendant who failed to object to closure of suppression hearing waived right to public proceeding).

In this case, the record reveals that Stapleton plainly waived his right to Liave the courtroom open during the jury charge.

THE COURT: Do you consent to closing the courtroom during the charge?

What is not clear from the record is whether the court proposed to exclude all members of the public during the charge, or whether, as is more common, it allowed public attendance provided persons arrived before the court began its instructions. Many judges lock their courtrooms once they begin to charge a jury to avoid the distractions caused by persons entering and exiting at will.

MR. KRINSKY [Defense counsel]: Whatever you want.

THE COURT: I am asking for your consent.

MR. KRINSKY: I have no objection . . . I explained it to Mr. Stapleton through the Court interpreter. There's no problem. He consents to having it closed.

Trial Trans. at 708-09. This part of his Sixth Amendment claim is patently without merit.

The trial transcript supplied to this court is consecutively numbered through page 915. Thereafter, for proceedings occurring on June 4, 1991, the page numbering inexplicably reverts to 708. The cited colloquy is from pp. 708-09 of that day's transcript.

As to his complaint about closed voir dire proceedings, the court notes that Stapleton adduces no evidence to support this claim. There is no transcript of these proceedings, a factor that does not weigh in petitioner's favor since trial counsel could have requested a court stenographer to record the voir dire or any part thereof if he wished to preserve for future review any objection to how it was conducted. See N.Y. Jud. Law § 295 (McKinney 1983). Further prompting skepticism about the bona fides of Stapleton's claim is the fact that he did not complain about a closed voir dire in his pro se brief on direct appeal nor in his first § 440 motion, nor in his coram nobis petition. It was only in his second § 440 motion, filed in 1997, some six years after his conviction, that Stapleton asserted that "the courtroom was constantly closed" during voir dire. This conclusory claim is not enough to warrant habeas review.

Even if Stapleton could establish that (1) the courtroom was closed during voir dire, (2) he did object to this procedure, and (3) the court nevertheless ordered closure without considering the factors identified in Waller, he would not automatically be entitled to habeas corpus relief. As the Second Circuit recognized in Brown v. Kuhlmann, 142 F.3d 529, 544 (2d Cir. 1998), some closures, even if erroneous, are not so substantial as "to undermine the values furthered by the public trial guarantee." In Brown, the trial judge excluded the public from the courtroom during the testimony of an undercover officer. The Court of Appeals assumed that the closure was unwarranted. Nevertheless, it ruled that a new trial was a disproportionate remedy for the error. Id. at 541, 544. The Court explained:

If the remedy of a new trial without a showing of prejudice is intended to deter unjustified courtroom closures, then the necessity for that remedy should depend on the degree to which it "could be charged that the judge deliberately enforced secrecy in order to be free of the safeguards of the public's scrutiny." Levine [v. United States], 362 U.S. at 619.
Id. at 541. In Stapleton's case, petitioner alleges no prejudice from the alleged voir dire closure. Certainly, he has never challenged the fairness of the jury selection process in any proceeding. Neither does he assert that the state trial judge's purpose was to enforce secrecy to be free of the safeguards of public scrutiny. To the contrary, he states that the court closed the voir dire because of the sexual nature of the charged offense. Whether this was or was not warranted cannot be determined in the absence of any transcript, but even assuming that the courtroom should not have been closed, the circumstances of this case, like those in Brown v. Kuhlmann simply do not call for the extraordinary remedy of a new trial.

VI. Challenge to Jury Instructions

Stapleton contends that the trial judge's instruction as to the "forcible compulsion" element of the rape and sodomy charges improperly shifted the burden of proof onto the defense.

The Due Process Clause provides that a defendant in a state criminal case cannot be convicted unless the prosecution "persuade[s] the factfinder `beyond a reasonable doubt' of the facts necessary to establish" the elements of the charged offense. Sullivan v. Louisiana, 508 U.S. 275, 278 (1993); In re Winship, 397 U.S. 358, 364 (1970). "A jury instruction that permits conviction on a lesser standard — by shifting the burden of proof from the prosecution to the defendant . . . — is constitutionally deficient." Vargas v. Keane, 86 F.3d 1273, 1276 (2d Cir. 1996). In Stapleton's case, there was no impermissible shifting of the burden of proof. Indeed there was no error whatsoever in the forcible compulsion charge.

The trial judge instructed the jury that "forcible compulsion means physical force or a threat expressed or implied that places a person in fear of immediate death or physical injury to herself." Trial Tr. at 810-11, 813 (emphasis added). This charge was entirely consistent with New York law. See N.Y. Penal Law § 130.00(8) (McKinney 1998) (defining "forcible compulsion" as "either: a. use of physical force; or b. a threat, express or implied, which places a person in fear of immediate death or physical injury . . ."); see also CJI(NY)2d 130.35(1) at 398-402 (1996) (state pattern jury instructions).

Stapleton nevertheless submits that the charge was defective because it allowed the jury to convict him on proof of either actual force or the threat of force. In support, he cites People v. Grega, 132 A.D.2d 749, 517 N.Y.S.2d 105 (3d Dep't 1987). That case is totally inapposite. Its concern was an impermissible variance between the indictment and the proof at trial. In Grega, the indictment for rape and sodomy specifically alleged forcible compulsion only by use of physical force. The Third Department ruled that where an indictment specifically limits the forcible compulsion element to one theory, i.e., use of physical force, it was error to instruct the jury that the element could be satisfied in some other way, i.e., through threats. See id. at 749, 517 N.Y.S.2d at 106 (quoting Art. I, Sect. 6, of New York State Constitution: "no person shall be held to answer for a capital or otherwise infamous crime . . . unless on indictment of a grand jury").

The indictment against Stapleton is readily distinguishable from that in Grega. It alleged forcible compulsion generally, without limiting the prosecution's theory either to the use of force or the threat of force. Neither New York law nor the federal due process clause prohibits alternative means of proving compulsion where, as here, no single method is pleaded in the indictment. See People v. Aybinder, 215 A.D.2d 181, 182, 626 N.Y.S.2d 150, 151 (1st Dep't 1995) (upholding court's decision to charge jury that forcible compulsion could be proved by evidence of either physical force or threat of force where "neither the indictment, motion papers nor the prosecutor's opening statement limited the prosecution" to any one theory); People v. McChesney, 160 A.D.2d 1045, 1046, 553 N.Y.S.2d 882, 883 (3d Dep't 1990) (holding that where bill of particulars gave defendant notice that prosecution would rely on both force and threat theories of forcible compulsion, jury was properly instructed that proof of either would satisfy the element). Indeed, in such circumstances, a general verdict of guilty will be upheld as long as there is sufficient evidence to support either theory. See generally Griffin v. United States, 502 U.S. 46, 56-57 (1991) (holding that due process is not violated by general verdict simply because one of the possible bases of conviction was unsupported by sufficient evidence). In this case, the evidence amply supported both theories of forcible compulsion. Over the course of several hours, Ms. Rodriguez was subjected to both physical abuse and the threat of such abuse before she was raped and sodomized.

The court finds that Stapleton's challenge to the trial judge's instruction on forcible compulsion is without merit.

VII. Prosecutorial Misconduct/Perjured Testimony

Stapleton submits that his due process right to a fair trial was violated by the prosecutor's use of perjured testimony from Ms. Rodriguez. In fact, Stapleton adduces no evidence that any statement made by this witness on the stand was false. He simply advances reasons why she should not have been believed. For example, he argues that (1) Ms. Rodriguez testified that Stapleton gagged her, but could not remember when this occurred; (2) she testified that Stapleton doused her with coffee and alcohol in the hours she was held in the Myrtle Avenue basement, yet no police detective or examining doctor testified to smelling those substances; (3) she never testified that she attempted to kick petitioner or otherwise move unrestricted parts of her body during the charged rape and sodomy, undercutting the assertion of forcible compulsion.

These arguments were properly considered, and obviously rejected, by the jury, which is "exclusively responsible for determining a witness' credibility." United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993). " 28 U.S.C. § 2254(d) gives federal habeas courts no license to redetermine the credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Marshall v. Lonberger, 459 U.S. 422, 434 (1983). Instead, a federal court considering a petition for a writ of habeas corpus must view all disputed facts in the light most favorable to the government and draw all inferences, including those relating to witness credibility, in its favor.See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Applying these principles to this case, it is apparent that petitioner's claim of prosecutorial misconduct through the use of perjured testimony must be rejected.

VIII. Ineffective Assistance of Counsel

Stapleton asserts that both his retained trial counsel and his court appointed appellate counsel were constitutionally ineffective. A prisoner asserting a claim of ineffective assistance of counsel must demonstrate both (1) that counsel's performance was so unreasonable under prevailing professional norms that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Strickland v. Washington, 466 U.S. 668, 687 (1984), and (2) that counsel's ineffectiveness prejudiced the defendant such 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. Accord United States v. Trzaska, 111 F.3d 1019, 1029 (2d Cir. 1997).

When applied to a challenge to the representation afforded by appellate counsel, Strickland requires a prisoner to show that "counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), and that `there was a `reasonable probability' that [the omitted claim] would have been successful before the [appellate court]," id. at 534 (quotingClaudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). In considering the first prong of this test, a reviewing court must bear in mind that appellate counsel is not required to raise every colorable claim of error, even if requested to do so by a client. See Jones v. Barnes, 463 U.S. 745, 754 (1983).

Furthermore, whether Strickland is applied to trial or appellate counsel, a reviewing 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 [legal] strategy.'" Strickland v. Washington, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). Paramount to the court's consideration of any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial [or appeal] cannot be relied on as having produced a just result." Id. at 686.

Stapleton's complaints about his counsel's performance on appeal do not satisfy the strict criteria of Strickland. Petitioner faults his Legal Aid attorney for not urging reversal on the grounds that (1) his conviction was secured by Ms. Rodriguez's perjury; and (2) the trial court had erred in preventing defense counsel from questioning Ms. Rodriguez about her sexual history. Petitioner was not prejudiced by the first omission, since he presented the perjury claim himself in his pro se brief to the Appellate Division. That court summarily rejected the point as without merit. For the reasons stated in Points IV and VII, supra, this court also finds no merit to either the perjury or cross-examination claims. Certainly, appellate counsel cannot be held constitutionally ineffective for failing to raise arguments that are plainly without merit. Indeed, one of the crucial tasks that must be performed by an effective appellate advocate is to isolate out of a voluminous trial record the few key issues most likely to persuade a reviewing court to reverse and not to bury these in a verbal mound made up of strong and weak contentions." Jones v. Barnes, 463 U.S. at 753.

As for trial counsel, Stapleton culls from the "verbal mound" of complaints presented in his § 440 motion the following defects in representation: (1) trial counsel's neglectful pre-trial investigation as evidenced by his failure (a) to retain expert witnesses to authenticate certain potential defense exhibits, and (b) to obtain certain discovery regarding Ms. Rodriguez's mental health; and (2) counsel's willingness to have petitioner's case languish for two years prior to trial.

These alleged omissions must be considered in the context of a record that reveals trial counsel to have been a forceful and determined advocate for his client. See generally Kimmelman v. Morrison, 477 U.S. 365, 386 (1986) (court may consider counsel's overall performance in assessing a Sixth Amendment claim). In both pre-trial motions and throughout trial, counsel thoughtfully advanced legal challenges to certain incriminatory evidence relied on by the prosecution. He vigorously cross-examined prosecution witnesses, exposing motives to falsify, inconsistent statements, and inadequate investigative techniques. He presented a plausible alibi defense supported by the testimony of a number of witnesses. He delivered a cogent and carefully constructed summation urging the jury to find that the proof presented was simply not enough to establish guilt beyond a reasonable doubt.

In light of this record, certain of Stapleton's Sixth Amendment challenges warrant little discussion. For example, although Stapleton faults trial counsel for failing to demand disclosure of a mental health professional consulted by Ms. Rodriguez, the record reveals that he made numerous requests for the witness's psychiatric records. In response, the prosecution turned over one doctor's report for in camera review, after which the trial judge ruled that nothing contained therein warranted disclosure to the defense. See Transcript, May 8, 1991, at 70. Apparently, Ms. Rodriguez had also consulted another psychiatrist or psychologist, but despite repeated questioning by the prosecutor, she could not recall the doctor's name. Defense counsel vigorously argued that the matter should be pursued further, but the court ruled that the government had fulfilled its obligation to investigate. See id. at 73. Trial counsel is not constitutionally ineffective simply because he fails to persuade the court on a given point.

Similarly without merit is petitioner's claim that counsel unreasonably allowed his case to languish. As Stapleton conceded in his § 440 motion, it was his own failure to pay his attorney that caused the delay in trial. Although he now argues that counsel should have used the time to develop helpful and exculpatory evidence, this claim, as the state court noted, is too vague to permit collateral review.

This leaves only the argument that counsel was ineffective in failing to procure expert witnesses to authenticate potential exhibits such as (1) the excluded tape recorded conversation discussed in Point IV, supra; (2) an unsigned vulgar poem written in Spanish and dated May 20, 1989, that Stapleton claims was written to him by Ms. Rodriguez; and (3) two letters purportedly written by Ms. Rodriguez's mother. Preliminarily, the court notes that Stapleton's argument is conclusory. Certainly, he comes forward with no affidavits or other admissible evidence indicating that any expert witness could have identified the voices or handwriting as he proposes. Absent such evidence it is difficult to imagine any prejudice. See Strickland v. Washington, 466 U.S. 693 (petitioner must show that attorney error "actually had an adverse effect on the defense"). Indeed, as to the tape recording, even assuming that a voice expert could identify the female speaker as Ms. Rodriguez, this court has already explained in Point IV, supra, why proof of identity would not have been enough by itself to authenticate the recording and have it received in evidence.

As to the poem and letters, however, a closer question is presented as to whether petitioner would have benefitted from an expert identification of authorship. This is because these items do contain statements suggesting that Ms. Rodriguez intended falsely to accuse Stapleton of rape and assault. For example, the poem, which is dated "5/20/89," concludes with the statement: "You have a prior case and with my lies you're going to jail." The first letter from "Maria Mercano," dated "8/5/89," states in part: "Cesar, . . . Lizette [sic] accused you falsely. But you deserve it for having spurned her for your wife and for making her suffer so much. Now it is her turn and ours to take revenge." The second letter, dated "12/17/89" and also signed "Maria Mercano," states more ambiguously: "We promise you something of Lizzette, she is under our control, now you have your promise." Plainly, it was part of the defense strategy to suggest that Ms. Rodriguez was falsely accusing Stapleton of the crimes charged. Toward this end, counsel offered testimony from Iris Stapleton and Joseph Castillo that they had heard her threaten to report Stapleton to the police if he ever ended their affair. Indeed, there is no question that trial counsel appreciated the significance of the poem and letters to bolstering this defense since he asked Ms. Rodriguez about them on cross-examination. With respect to the poem, he took particular pains to mark it for identification and to quote from it in an effort both to unnerve the witness and impeach her credibility before the jury.

Q: Miss Rodriguez, did you write any poem or letter to Mr. Rodriguez — to Mr. Stapleton?

A: Never.

. . .

Q: Never?

A: I am not — I can't write Spanish very well.

Q: Do you write in Spanish?

A: I don't write in Spanish very well and I never wrote any poems to him, anyway, never.
Q: You never in any form, be it a poem or in any written form, whatever you want to call it, did you ever write to him in which you told him in written form that, "With my lies you will go to jail"?

A: Never.

MR. KRINSKY (defense counsel): Perhaps I could have this marked?

. . .

THE COURT: Yes, you may show it to the witness.

THE WITNESS: That's definitely not my handwriting.

. . .

Q: Is that a letter or poem that was written by you to Cesar Stapleton on May 20, 1989?

A. No. Definitely not.

. . .

Q: It's not your handwriting?

A: Not my handwriting?

Q: And it wasn't written by you?

A: Not at all.

Q: Had you ever seen that before?

A: No, I haven't.

Tr. Trans. at 342-45. What counsel did not do, however, was seek to offer the poem in evidence through a handwriting expert. Neither did he seek to call Ms. Rodriguez's mother or any handwriting expert with respect to the letters. As already noted, although petitioner cites these omissions in support of his Sixth Amendment claim, he fails to demonstrate that any expert, much less the rape victim's mother, would have testified favorably to him. Nevertheless, this court is of the view that this issue is better resolved after further inquiry of trial counsel as to his reasons for not pursuing the question of who penned the documents.

The court remains mindful that the decision whether or not to call an expert witness generally falls within the wide sphere of strategic choices for which counsel will not be second-guessed on habeas review. See United States v. Kirsh, 54 F.3d 1062, 1072 (2d Cir. 1995) (rejecting direct appeal challenge to trial counsel's failure to call a fingerprint expert); see generally United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial"). While in some circumstances, an attorney's failure to arrange for an independent expert examination of critical evidence maybe so objectively unreasonable as to violate the Sixth Amendment, see generally Sims v. Livesay, 970 F.2d 1575, 1578-79 (6th Cir. 1992) (holding that in a homicide case where defendant claimed the victim committed suicide, it was constitutionally ineffective for counsel to fail to have an independent expert examine a quilt containing three gunshot holes), that is not so obviously this case. The poem and letters at issue were, after all, exhibits conveniently produced by the petitioner under circumstances that might well have given an experienced defense attorney pause about their authenticity.

Furthermore, in this case it appears that trial counsel's effort to impeach Ms. Rodriguez's credibility with extrinsic evidence of her willingness to lie was rejected by the trial court. Specifically, defense counsel had established through Ms. Rodriguez and Mrs. Stapleton that Ms. Rodriguez had called the Stapleton home at approximately 2:30 A.M. in January 1991. Counsel sought to question Mrs. Stapleton about the conversation, proferring that her testimony, not unlike the poem and letters, would show Ms. Rodriguez's "bias to fabricate these charges against this defendant." Tr. Trans. at 794. Mrs. Stapleton would testify that she heard Ms. Rodriguez tell petitioner that "she still loves him, the only reason she was doing this was she didn't want him to be with any other woman, and that's the reason why she caused all this trouble." Id. Generally, New York courts will permit a witness to be impeached with proof of prior statements that establish a motive to lie or a willingness to suborn perjury. See United States v. Haggett, 438 F.2d 396, 399-400 (2d Cir. 1970) (citing various New York cases and treatises on evidence in holding that prosecution witness could be impeached with testimony from other persons whom he encouraged to commit perjury and to whom he stated that he was "out to get" defendant and would do so by whatever means necessary). Nevertheless, in this case, the trial judge sustained objection to the conversation: "I am exercising my discretion. I am not permitting it." Tr. Trans. at 797. Whether, in light of this ruling, which Stapleton has never challenged in the state courts, petitioner can complain about his counsel's failure to offer other extrinsic evidence of bias, is questionable. Rather than speculate, however, the court will conduct a hearing to ascertain the reason for counsel's choice.

Conclusion

For the reasons stated, the court rejects as without merit all of Caesar Stapleton's federal challenges to his state conviction with the exception of that part of his Sixth Amendment claim faulting trial counsel for not securing expert testimony to identify handwriting on certain documents. Since resolution of this claim may benefit from further development of the record, the court directs the clerk of the court to appoint counsel for petitioner, after which an evidentiary hearing will be scheduled.

SO ORDERED.


Summaries of

Stapleton v. Greiner

United States District Court, E.D. New York
Jul 10, 2000
98 CV-1971 (RR) (E.D.N.Y. Jul. 10, 2000)
Case details for

Stapleton v. Greiner

Case Details

Full title:CAESAR STAPLETON, Petitioner, v. CHARLES GREINER, Superintendent, Sing…

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

Date published: Jul 10, 2000

Citations

98 CV-1971 (RR) (E.D.N.Y. Jul. 10, 2000)

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