Rosario v. Bennett

Full title: MARCOS ROSARIO, Petitioner, v. FLOYD BENNETT, JR., Respondent

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

Date published: Dec 20, 2002

01 Civ. 7142 (RMB) (AJP) (S.D.N.Y. Dec. 20, 2002)

Opinion

01 Civ. 7142 (RMB) (AJP)

December 20, 2002.

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge

To the Honorable Richard M. Berman, United States District Judge:

Pro se petitioner Marcos Rosario seeks a writ of habeas corpus from his 1995 conviction after a jury trial in Supreme Court, New York County, of second degree murder, first degree assault, and second degree criminal possession of a weapon, in connection with the shooting death of Raheem Winkfield and wounding of Sean McCullough. In his petition, Rosario claims that the trial court improperly granted the State's for-cause challenge of a selected but unsworn juror based on the juror's memory lapses. (Dkt. No. 1: Pet. ¶ 13(A).) In addition, Rosario alleges that his privately-retained trial counsel rendered ineffective assistance by: (1) eliciting at trial Rosario's otherwise inadmissible confession of the crime to his girlfriend (Pet. ¶ 13(B)); (2) failing to investigate the facts of the case (Pet. ¶ 13(C)); (3) failing to consult Rosario about the facts of the case or the conduct of the trial, failing to offer sound legal advice, and failing to prepare Rosario to testify (id.); (4) permitting material evidence (i.e., the car driven by the victims) to be released to the car's owner before the defense could test or investigate it (id.); (5) failing to request a jury charge defining the terms "statement," "admission," and "confession" (Pet. ¶ 13(D)); and (6) failing to object to the imposition of consecutive sentences (id.).

For the reasons set forth below, Rosario's petition should be DENIED.

FACTS

Huntley Suppression Hearing

On May 1, 1994, the police arrested Rosario for the April 24, 1994 shooting and killing of Raheem Winkfield and wounding of Sean McCullough. (Hodge: Huntley Hearing ["H."] 11-12, 36-37, 48.)

On February 10, 14 and 15, 1995, the state trial court held a pretrial Huntley hearing, see People v. Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 843-44 (1965), to determine whether Rosario's statements to the police should be suppressed. (H. 1-366.)¹ Specifically, Rosario moved to suppress four statements that he allegedly made to Detectives Kim Hodge and Darryl Hayes while in the 28th Precinct over the course of a thirteen-hour period on May 1, 1994, the date of his arrest. (See H. 336.)

1 The cases cited by Cummings in his reply brief are inapplicable since they involved instructions that improperly failed to differentiate among the charges that the jury was asked to consider. See People v. Payne, 241 A.D.2d 466, 467, 660 N.Y.S.2d 147, 148 (2d Dep't 1997) (supplemental instructions in assault case improperly advised jury that "all three injuries were part of the charges without differentiating between any of the three counts"); People v. Archer, 238 A.D.2d 183, 656 N.Y.S.2d 237, 238 (1st Dep't 1997) (trial court "failed to assign specific gun to specific count"); People v. Jackson, 174 A.D.2d 444, 445, 572 N.Y.S.2d 891, 892 (1st Dep't 1991) ("Because of the court's instructions . . . as to accessorial criminal liability, any juror could have voted appellant guilty based on his possession of any of the [four] weapons mentioned at trial."); People v. Scott, 159 A.D.2d 975, 976, 552 N.Y.S.2d 764, 765 (4th Dep't 1990) (jury could have convicted without being unanimous as to which of two alternative theories applied).

At the hearing, Detectives Hodge and Hayes testified that in response to a phone call request, Rosario voluntarily appeared for an interview at the station house on May 1, 1994 at approximately 11:30 a.m. (Hodge: H. 13-17, 65-71; D. Hayes: H. 167-68.)² Detective Hodge interviewed Rosario through 2:05 p.m. and he signed a written statement (his "first" statement, see H. 336) exculpating himself. (Hodge: H. 19-29, 77, 84-87, 90-93, 97-107; D. Hayes: H. 168-70.) According to the detectives, Rosario voluntarily agreed to remain at the station house after the interview while they investigated further, although he was free to leave at any time. (Hodge: H. 29-31, 106-07, 111, 113, 118-22, 126-27; D. Hayes: H. 170, 221-29.) Rosario was given food at around 5:00 p.m., went to the bathroom at least twice, and was given cigarettes. (D. Hayes: H. 174, 206, 208-12, 214, 221-29.)

2 Defense counsel asked questions to try to establish that Rosario was a suspect at that time because shooting victim McCullough had stated that "Markie" shot him. (Hodge: H. 62-63, 79-80, 93; A. Hayes: H. 272-75.) But McCullough had not seen the shooter, was reporting the "word on the street," only stated that Rosario had had a dispute with him, and identified others who had a motive for the shooting. (Hodge: H. 156; A. Hayes: H. 274-76.)

From approximately 4:00 to 5:30 p.m. and from about 7:20 to 7:40 p.m., Detective Hodge interviewed Rosario's "girlfriend," 16 year-old Jessica Perez, at the station house. (Hodge: H. 32-35, 111-17, 131; D. Hayes: H. 171-73.) Detective Hodge elicited a signed statement from Perez that Rosario had confessed to her that he committed the shooting. (Hodge: H. 33, 122-25.)³

3 Perez's statement to the detectives, however, was not at issue at the Huntley hearing. (See H. 336.)

At approximately 8:00 p.m., Detective Darryl Hayes told Rosario that his girlfriend, Perez, was pregnant, and that "she wanted [him] to tell the truth." (D. Hayes: H. 175-77, 216-21, 230; see Hodge: H. 107-10, 128-30.) Rosario immediately responded by describing his problems with the car purchase and "he started telling [Detective Hayes] that he followed the car up to 115th and Lenox Avenue at which time he said he started shooting" (Rosario's "second" statement, see H. 336). (D. Hayes: H. 176-80; see also id. at 230-32, 248.) Detective Hayes "stopped [Rosario] at that time and told him, `Don't say no more. We have to read you your Miranda,'" and went to get Detective Hodge. (D. Hayes: H. 179-80, 235-37, 248-49; see Hodge: H. 128.)

At approximately 8:45 p.m., Detective Hodge read Rosario his Miranda rights, placed Rosario under arrest, and Rosario signed a written waiver of his Miranda rights. (Hodge: H. 30, 36-42, 48-49, 107, 114, 122, 127-28, 130-32; D. Hayes: H. 179-81, 236-37, 248-49.) Detective Hodge asked Rosario to tell him what happened on April 24; Detective Hodge did not threaten Rosario or discuss what Perez said. (Hodge: H. 130-32.) Rosario described to the detectives the details of the shooting and signed a written confession (the "third" statement, see H. 336). (Hodge: H. 42-49, 132-35, 137-44; D. Hayes: H. 181-82, 249-58.) That interview ended at approximately 9:55 p.m. (Hodge: H. 47-48, 133-34, 141-43.)⁴

4 After Rosario's third statement, the police allowed Perez to talk with Rosario. (Hayes: H. 182.)

At approximately 12:30 a.m., Rosario gave a videotaped confession in the presence of the detectives and an Assistant District Attorney (the "fourth" statement, see H. 336). (Hodge: H. 49-55, 146, 148-51.)

At the Huntley hearing, Rosario's counsel vigorously cross-examined Detectives Hodge (Hodge: H. 57-155) and Darryl Hayes (D. Hayes: H. 182-259), and also called Detective Alan Hayes to testify (A. Hayes: H. 264-76). At the close of the hearing testimony, Rosario's counsel argued that the police had effectively held Rosario, their only suspect, in custody at the station house — barring him from speaking to anyone (H. 313) or from leaving — from 11:30 a.m. until 8:45 p.m. when he made his first confession, and then until after midnight when he made his videotaped confession. (H. 303-26.) Counsel thus argued that Rosario's oral statements to the police should be suppressed because they were elicited while he was in custody and prior to being Mirandized, and his later written and videotaped confessions were inadmissible as fruit of the poisonous tree. (E.g., H. 315, 320, 325-26.) In addition, defense counsel argued that Rosario's second statement, to Detective Hayes, should be suppressed because the State failed to give notice that the statement would be offered. (H. 321-22, 329-35.)

In detailed findings of fact (H. 336-66), the judge concluded that Rosario was not "in custody" when he made his first (exculpatory) statement to Detective Hodge starting at approximately 11:30 a.m. and his second (inculpatory) statement to Detective Hayes between 7:00 and 8:00 p.m. (H. 340-41, 345, 348-59, 362-63.) Following the statement to Detective Hayes, the police read Rosario his Miranda rights, which Rosario knowingly and intelligently waived, and then Rosario made full written and videotaped confessions (the third and fourth statements). (H. 346-47, 359-66.) The court thus held that all of the statements were admissible (H. 363-65), but nevertheless suppressed the second statement (to Detective Darryl Hayes) because the State had failed to give notice of its intent to offer the statement. (H. 363.)⁵

5 Defense counsel objected to going to trial immediately after the Huntley hearing, saying he needed more time to prepare, since "[m]uch of this case is going to depend, going to revolve around the statements [Rosario] made, the voluntariness of the statements. . . ." (H. 277-78.) The trial judge denied the application. (H. 278-82.)

Jury Voir Dire

Trial began on February 15, 1995 with jury voir dire. After both parties had asserted challenges "for cause" and peremptory challenges as to the first voir dire panel (Voir Dire Transcript ["V.D."] 28-29), but before those jurors were sworn (V.D. 29, 39), panelist Ivar Morris announced the following:

Over the last few months or so I've been having a lot of trouble with my memory and whatever. Perhaps it's something to do with, you know, senility. My mother and father, they died of Alzheimer's disease and my brother older brother, has it already and I don't know, sometimes, you know some days are better than others, some days I can't remember phone numbers and whatever, so I don't know whether that will affect my being able to remember facts and whatever.

(V.D. 32.) Although Morris recalled the prior day's proceedings, he stated that he was "over 65" years old, his memory "goes and comes," and thus his memory "might" "affect [his] ability to sit as a juror." (V.D. 32-35.) The State moved to excuse Morris for cause. (V.D. 36.) Rosario's counsel objected, arguing that Morris was able to comprehend the proceedings and it would be unfair to excuse him after Rosario had already exercised his peremptory challenges. (V.D. 36-37.) The court ordered Morris excused because his forgetfulness "might affect his ability to . . . sit in a trial and recall testimony and be able to deliberate." (V.D. 37-38.)⁶ Trial: Opening Statements

6 On February 17, 1995, after the jury was impaneled, Rosario's counsel also moved under People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974), to have Rosario's prior criminal record suppressed in the event that he testified. (Trial Transcript ["Tr."] 7-13.) The court suppressed one crime committed while Rosario was a minor and suppressed cross-examination regarding a rape conviction, but allowed the State to ask Rosario if he had ever been convicted of a misdemeanor. (Tr. 12-13.)

Both the prosecution and defense openings focused on Rosario's confession. The prosecution called the videotaped confession "the most compelling evidence":

And how do we expect to prove these allegations?

Well Ladies and Gentlemen, the most compelling evidence that you're going to hear during the course of this trial will come from the defendant's own mouth in the form of a videotaped confession that you're going to see. . . . I submit that you will conclude that the statement that he made at that time was given freely, voluntarily. . . .

(Prosecution Opening: Trial Transcript ["Tr."] 36-37.) The prosecutor noted that initially Rosario said he was merely "in the vicinity visiting friends," but after Detective Hayes told Rosario that his girlfriend said he should tell the truth — "a ploy designed to get the defendant to speak and it worked" — "Detective Kim Hodge spoke to the defendant, she administered Miranda warnings, and the defendant confessed." (Prosecution Opening: Tr. 44-45.) The prosecutor predicted: "I expect that during the course of this trial you'll hear quite a big deal made about this ploy, but nevertheless I submit to you that you will find that the defendant's statements were made voluntarily. . . ." (Prosecution Opening: Tr. 45.)

The defense's opening immediately attacked the lack of evidence aside from the videotaped statement, and attacked the voluntariness of that statement:

She [the prosecutor] states to you that the most compelling evidence is a videotaped statement by Marcos Rosario and I submit to you that the only evidence is a videotaped statement by Marcos Rosario, a videotaped statement taken of him after he was in police custody for over 13 hours. A videotaped statement taken of him when he voluntarily entered the police station to answer any and all questions.

. . . .

So I want you to pay close attention and you will see that the only evidence here is that video. And the question is what happened in that police station regarding the time Marcos Rosario was in there that resulted in that video?

. . . .

And I suggest to you, ladies and gentlemen, that before you can understand that video you have to understand what happened at the police station.

. . . .

I suggest to you, ladies and gentlemen, that this case will deal greatly with what happened to Marcos Rosario during the thirteen hours or more inside that police station when he went in there voluntarily to make a statement. What happened at the end that caused him to make that videotaped statement? That's what this case is about.

(Defense Opening: Tr. 58, 61, 63.)

Trial: The Prosecution Case

In 1993, Sean McCullough met and became "good friends" with Rosario, who he called "Marky." (McCullough: Tr. 80-82.) In Fall 1993, McCullough sold his 1988 "Sterling" automobile to Rosario in exchange for a cellular phone, a gun, and Rosario's promise to pay $1,500 at some later date. (McCullough: Tr. 83-86, 106-10.)

About six months after the car sale, Rosario had still not paid McCullough the $1,500, so McCullough repossessed the car. (McCullough: Tr. 86-88, 90-91, 111-12, 115-17.) A few days later, Rosario demanded that McCullough return the car and when McCullough refused, Rosario said, "I'm gonna kill you." (McCullough: Tr. 91, 122-24.)

On April 24, 1994, at around 10:50 p.m., McCullough was sitting in the Sterling, waiting behind another car at a stoplight at 115th Street and Lenox Avenue in Manhattan. (McCullough: Tr. 92-95; Dawkins: Tr. 193-95.) McCullough was in the front passenger seat and his friend Raheem Winkfield was driving because McCullough had difficulty seeing at night. (McCullough: Tr. 92-93, 129; Dawkins: Tr. 194.) Another friend, Lamar Dawkins, was in the back seat. (McCullough: Tr. 93, 136-37; Dawkins: Tr. 190, 193-94, 205, 210, 212.)

Suddenly, several gunshots shattered the driver's side window, hitting both Winkfield and McCullough. (McCullough: Tr. 95-97; Dawkins: Tr. 196-200, 212-14; see Lusk: Tr. 236-40.) Dawkins did not see the shooter. (Dawkins: Tr. 197, 217.) Seconds after the shooting ended, McCullough looked to his left through the windshield and saw Rosario about two to three feet in front of the car. (McCullough: Tr. 97-99, 137-44.) Rosario was wearing a cap, and his face was illuminated by the car's headlights. (McCullough: Tr. 138-42.) Rosario then cycled away. (McCullough: Tr. 98-99, 143-45.)

Upon hearing shots, the driver of the car in front of the Sterling, Rafael Gonzalez, looked in his car's rearview mirror and saw a man on a bicycle, "one to two feet away" from the driver's side door of the car behind his, shooting into the car. (Gonzalez: Tr. 66-70, 73.) It was nighttime, Gonzalez's car had tinted windows, and the headlights of the car behind him "somewhat blind[ed]" him, so Gonzalez did not see the shooter's face. (Gonzalez: Tr. 69, 74-75.) At trial, Gonzalez did not recognize Rosario. (Gonzalez: Tr. 71-72.) Defense counsel established that Gonzalez described the shooter as a "dark-skinned," "skinny" male, approximately five feet, five inches tall, wearing a T-shirt and a cap. (Gonzalez: Tr. 69, 76-77.) Defense counsel also brought out that Gonzalez would not describe Rosario as dark-skinned. (Gonzalez: Tr. 78.) Notably, defense counsel established that McCullough had told the police that Winkfield, the murder victim, had had "a problem" with an individual named "Andre" (McCullough: Tr. 126-27; see Hodge: Tr. 355), who was dark-skinned, skinny, and about five feet, five inches tall (McCullough: Tr. 132.)

McCullough was shot three times in the left arm and once in the back. (McCullough: Tr. 99-100, 135.) "Within a second or so" or "about half a minute" after the shooting, Dawkins looked up and saw McCullough "crouched" over, with his "head down" "leaning forward towards his lap" and "looking towards" Winkfield. (Dawkins: Tr. 198-99, 217-21, 229, 231.) Dawkins asked McCullough several times whether he was all right, but McCullough simply "moaned" and "didn't appear to hear" Dawkins. (Dawkins: Tr. 218-21, 223-24; Lusk: Tr. 265.)

The medical examiner testified that Winkfield was killed by two bullets to the left side of his head. (Smiddy: Tr. 645, 648-52.) Both bullets were later extracted from Winkfield's head, which had no exit wounds. (Smiddy: Tr. 649-50.) The gun was fired from a few inches to three feet from his head. (Smiddy: Tr. 652-53.) The police found eight to ten bullet casings at the scene. (DeGuilio: Tr. 171-73; Lusk: Tr. 245-47, 254-58; Hodge: Tr. 344.) Police Officer James Lusk, who was first at the scene, spoke to bystanders immediately after the shooting, but "[n]obody knew anything." (Lusk: Tr. 235, 242.)

Police Officer Nicholas Gadaleta testified that in the ambulance on the way to the hospital, McCullough told him that he was shot by "a guy named Markie from 108th and Madison." (Gadaleta: Tr. 660, 662-63, 668-69.)⁷ However, aside from this alleged statement to Officer Gadaleta (which surfaced for the first time at trial), McCullough repeatedly told both the police and the grand jury that he could not identify the shooter. (Lusk: Tr. 264-67; McCullough: Tr. 103-05, 113-15, 124-26, 130-31, 141-42, 146; Hodge: Tr. 354-55; see Dawkins: Tr. 226.) Eventually, just days before trial, McCullough admitted to the prosecutor that Rosario was the shooter. (McCullough: Tr. 131-32, 148.) McCullough testified that he lied to the authorities earlier because he "was just thinking about taking revenge [him]self." (McCullough: Tr. 104-05, 142, 145-46.) McCullough finally accused Rosario because "as far as [McCullough] was concerned, it was over" — McCullough could no longer take revenge himself because Rosario was "already incarcerated." (McCullough: Tr. 148-49, 152-54.)

7 Detective Hodge also testified that one day after the shooting, McCullough said that "he had a beef with a guy named Marky." (Hodge: Tr. 355, 372-75.)

Rosario's Confessions

At trial, Detectives Kim Hodge and Darryl Hayes substantially repeated their Huntley hearing testimony regarding Rosario's interviews with, and ultimate confession to, them on May 1, 1994. (Hodge: Tr. 273-320; Hayes: Tr. 521-38.) Among other things, they testified that prior to being arrested or Mirandized, Rosario was not handcuffed and was not held at the station house against his will, but rather was merely asked to "wait a while," during which time he was fed and allowed to go to the bathroom. (Hodge: Tr. 290-92, 449-50, 459-61, 480-82; Hayes: Tr. 523-25, 574-77.) Detective Hodge read into the record Rosario's first exculpatory statement (Hodge: Tr. 287-89), and also read to the jury Rosario's written confession (i.e., the third statement), and the jury viewed Rosario's videotaped confession (the fourth statement) — the latter two of which were elicited after Rosario waived his Miranda rights in writing. (Hodge: Tr. 295-311, 313-16, 318-19A.)⁸

8 The court reporter did not transcribe the videotaped confession (Hodge: Tr. 319-19A), and this Court has not been provided with a copy or transcript of the videotape.

In his signed, written confession, Rosario stated the following: He bought a Sterling automobile from McCullough in December 1992 in return for a cellular phone, a gun, and a promise to pay $750 at a later date. (Hodge: Tr. 304.) After a dispute regarding payment for the car, McCullough repossessed the car from Rosario. (Hodge: Tr. 304-07.) Subsequently, McCullough "went around causing problems" by telling individuals named "Dred" and "Smiley" that Rosario "had something to do with them getting shot." (Hodge: Tr. 308.) Because Rosario "was worried about Dred and [McCullough] and Smiley being out to get him," he went into hiding. (Hodge: Tr. 308.) A month later, on April 24, 1994, Rosario was riding a bicycle on 115th Street when he saw his old Sterling car stopped at a red light. (Hodge: Tr. 308-09.) Rosario took a gun from his pocket and "started shooting at the driver's side of the car." (Hodge: Tr. 309.) Although he thought he was shooting at McCullough in the driver's seat, he realized after he finished shooting that McCullough was actually in the passenger seat. (Hodge: Tr. 309.) Rosario threw away his gun and pedaled off. (Hodge: Tr. 309.)

Rosario's counsel extensively cross-examined Detectives Hodge and Hayes in an effort to show, among other things, that Rosario was the only suspect, he was held at the precinct for thirteen hours (e.g. Hodge: Tr. 449-51, 459-61), and that Rosario's confession was not voluntary. (Hodge: Tr. 321-491, 498-510; Hayes: Tr. 538-603.) On cross-examination, Rosario's counsel elicited from Detective Hodge the statement of Rosario's girlfriend, Jessica Perez, that Rosario had "told her that he had shot somebody and that it was a mistake." (Hodge: Tr. 463-64.) Because the State had earlier indicated that it would not call Ms. Perez as a witness (Tr. 454), Detective Hodge could not have testified regarding Perez's hearsay except on cross-examination by Rosario's counsel. Rosario's counsel also offered into evidence Perez's signed statement. (Hodge: Tr. 500-02.)

During cross-examination, Rosario's counsel also followed up on the direct testimony from Detective Hayes that he told Rosario his girlfriend was pregnant and wanted him to tell the truth. (Hayes: Tr. 526, 577-78, 589-90, 593.) Defense counsel elicited Detective Hayes' testimony that prior to being read his Miranda rights, Rosario told Detective Hayes that because of a money dispute, "he rolled up on his bicycle and started shooting into the car" (Hayes: Tr. 594-99) — the "second" statement, which had not been elicited on direct since it had been suppressed for failure to give notice (see page 5 above; see also Tr. 440-42). It appears that defense counsel brought this out to undermine the credibility of Detectives Hodge and Hayes, who testified that they never spoke to each other about what Rosario allegedly told Detective Hayes. (E.g., Hodge: Tr. 485-86; Hayes: Tr. 598-99.)

The Defense Case at Trial

Rosario, the sole defense witness (see Tr. 706-836), testified that after he purchased the Sterling from McCullough, McCullough repossessed the car because of a payment dispute. (Rosario: Tr. 738-53.) Rosario denied threatening to kill McCullough; rather, McCullough threatened Rosario and Rosario told Winkfield out of anger that "if [McCullough] didn't bring the car back [Rosario] was going to flip on him and eventually [they would] bump heads," that is, "fight." (Rosario: Tr. 733, 753-61.) Rosario also denied shooting Winkfield or McCullough. (Rosario: Tr. 727.)

On the morning of May 1, 1994, the police told Rosario over the telephone to come to the station house for an interview. (Rosario: Tr. 708-10.) During the initial morning interview with Detective Hodge, Rosario explained his whereabouts on the day of the shooting and denied any involvement in the shooting. (Rosario: Tr. 710-17.)

After Detective Hodge concluded this initial interview, three or four other detectives, including Detective Hayes, began interrogating Rosario for virtually the entire day. (Rosario: Tr. 718-22, 788, 790, 793-97.) The detectives did not give him food or allow him to use the bathroom, and denied his repeated requests to be allowed to leave. (Rosario: Tr. 797-98) Rosario was "already tired and frustrated" (Rosario: Tr. 729); he "didn't really get no sleep at all" the night before, as he had been "drinking very heavy" (Rosario: Tr. 710). He told the detectives "I am tired and hungry and I want to leave." (Rosario: Tr. 789-90.)

Some time in the "late evening," Detective Hayes told Rosario that his girlfriend, Jessica Perez, was in the station house and that she was pregnant. (Rosario: Tr. 723-24, 726.) The detectives repeatedly threatened to charge Rosario with the statutory rape of Perez, and told Rosario that his probation on an unrelated misdemeanor charge would be revoked if he was charged with statutory rape. (Rosario: Tr. 724-27, 802.)

Eventually, Rosario falsely confessed to the shooting, both to avoid the statutory rape charge and because the detectives told him that if he cooperated he could claim that the shooting was in self defense. (Rosario: Tr. 726-29, 733-34, 780, 802-06.) The detectives told him "that the sooner [he] cooperate[d] the sooner [he] could leave," and "that they was going to make it seem all it was was self-defense" (Rosario: Tr. 730, 805-10, 821). In his signed written confession and videotaped confession, Rosario simply repeated what the detectives told him to say. (Rosario: Tr. 730-35, 805-15.)⁹ Defense Counsel's Summation

9 Oddly, Rosario admitted to signing his written confession (the "third" statement) (Rosario: Tr. 733-35, 780, 806), but denied giving or signing the initial, exculpatory written statement (the "first" statement) (Rosario: Tr. 716, 766-73, 776-80). Further, Rosario denied confessing to his girlfriend, Jessica Perez, that he committed the shooting. (Rosario: Tr. 830-31.) Rosario admitted, however, that he kept a gun in a dresser drawer in Perez's house, but stated that he got rid of it in early April 1994. (Rosario: Tr. 831-32.)

Rosario's counsel began his summation by attacking McCullough's in-court identification of Rosario as the shooter, pointing out that McCullough had repeatedly stated that he could not identify the shooter, including under oath to the grand jury. (Defense Summation: Tr. 848-51.) Moreover, McCullough's night vision was poor, and he was in such pain after the shooting that he could not even speak — hardly the hallmarks of a reliable eyewitness. (Tr. 849-50, 855-56.) Defense counsel also attacked Officer Gadaleta's testimony that on April 24, McCullough identified the shooter as "Markey from 107th [sic]" and Madison, by arguing that the police would not have waited until May 1 to pick up Rosario if the victim had identified him as the shooter one week earlier. (Tr. 851-52.) Defense counsel pointed out that the only occupant of the car who was not shot, Dawkins, did not identify Rosario as the shooter. (Tr. 855.)

Rosario's counsel asserted that the testimony of Mr. Gonzalez — the driver of the other car at the stoplight — was, if anything, exculpatory. (Tr. 852-54.) Gonzalez testified that the shooter was "dark-skinned" and five foot, five inches tall. (Tr. 853.) That description did not fit Rosario, but did fit "Andre" — an individual who had allegedly had "a problem" with Winkfield, the murder victim. (Tr. 852-54.)

Defense counsel argued that Rosario was kept in the station house against his will, as no sane person would make an exculpatory statement and then voluntarily sit in an interview room for another ten hours. (Tr. 856-58.) According to defense counsel, only the credulous would believe that Rosario suddenly confessed to the shooting upon being informed that his girlfriend was pregnant and wanted him to tell the truth. (Tr. 860-61.) And if the police really had a statement from Perez that Rosario confessed to her, why would the police not use it to question Rosario, defense counsel asked. (Tr. 862.) He introduced that written statement to compare to her signature on the search permission form, to show that it was not her signature on the statement. (Tr. 862.)

According to his counsel, Rosario clearly looked exhausted on the videotape and had even stated in the videotape that he could not "think too well." (Tr. 863-64.) Given Rosario's state of mind, and the detectives' threat to revoke Rosario's probation by charging him with statutory rape, defense counsel argued that Rosario's statement was coerced and thus illegal. (Tr. 864, 867-68, 871-72.)

Finally, defense counsel argued that Rosario's videotaped description of the shooting did not match the facts. (Tr. 864.) Among other things, Rosario stated on the videotape that he shot from eight feet away, while the medical examiner testified that Winkfield was shot from close range — no more than two or three feet. (Tr. 866.) Similarly, given the close-range of the shooting, the real shooter would not have stated, as Rosario did on the videotape, that he did not know whether he shot Winkfield. (Tr. 865-66.)

The Jury Charge

At Rosario's counsel's request (see Tr. 839-46, 870-71), the court charged the jury to consider whether Rosario made statements to the police and, if so, whether the length of time Rosario spent at the station house affected the voluntariness of his statements to the police and whether his Miranda waiver was knowing and intelligent. (Charge: Tr. 922-27.) Rosario's counsel took no exception to the jury charge as given. (Tr. 954-55.)

Verdict and Sentence

Rosario was found guilty of second degree murder, first degree assault, and second degree criminal possession of a weapon. (Tr. 979-83.)

On March 17, 1995, despite defense counsel's impassioned speech for leniency (Sentencing Transcript ["S."] 11-21), Rosario was sentenced to fifteen years to life for murder, three and one-third to ten years for assault (to be served consecutively with the murder sentence), and two to six years for gun possession (to be served concurrently with the other two sentences) (S. 25-26).

Rosario's Direct Appeal

Rosario's newly-appointed counsel (the Legal Aid Society) appealed to the First Department, claiming violation of Rosario's federal and state constitutional rights on two grounds: (1) the trial court improperly granted the State's for-cause challenge of a selected but unsworn juror (the "Juror Discharge Claim"), and (2) trial counsel rendered ineffective assistance by eliciting Rosario's otherwise inadmissible confession of the crime to his girlfriend (the "Confession Claim"). (Ex. B: Rosario 1st Dep't Br.)¹⁰

10 Unless otherwise indicated, references to exhibits are to the exhibits in the State's Appendix, Dkt. No. 7.

The First Department unanimously affirmed, holding:

The court properly exercised its discretion in excusing a juror who revealed that he was having significant memory problems and expressed doubt about his ability to sit as a juror. The juror's statement that both of his parents had died of Alzheimer's disease and that the disease had already fully manifested itself in his older brother indicated the seriousness of the juror's concerns about his memory lapses.

Defendant's claim of ineffective assistance of counsel was never raised in a CPL 440.10 motion, where crucial background facts might have been developed on proper inquiry, and therefore this Court cannot evaluate the issue without resort to "supposition and conjecture." On the instant record, within the context of trial counsel's performance as a whole, we conclude that defendant received effective assistance, and that counsel's deliberate elicitation of, and simultaneous attack upon, certain potentially damaging testimony, was part of a plausible strategy aimed at discrediting the police.

People v. Rosario, 248 A.D.2d 283, 283, 670 N.Y.S.2d 461, 462 (1st Dep't 1998) (citations omitted).

On June 29, 1998, the New York Court of Appeals denied leave to appeal. People v. Rosario, 92 N.Y.2d 860, 677 N.Y.S.2d 90 (1998).

Rosario's First C.P.L. § 440 Motion

On May 27, 1999, Rosario mailed a pro se C.P.L. § 440.10 motion to the trial court to vacate the judgment on the grounds that trial counsel rendered ineffective assistance by:

(1) failing to investigate the facts of the case; (2) failing to consult Rosario about the facts of the case or the conduct of the trial, failing to offer sound legal advice, and failing to prepare Rosario to testify; and (3) permitting material evidence (i.e., the car driven by the victims) to be released to the car's owner before the defense could test or investigate the evidence. (Ex. H: Rosario 5/27/99 § 440 Motion.) Although given to prison authorities to mail on May 27, 1999, the § 440 motion was not received and "filed" with the trial court until June 3, 1999. (Dkt. No. 7: A.D.A. Farrington 11/7/01 Aff. ¶ 7.)

Rosario also filed on May 27, 1999 a pro se "Addendum" to his § 440 motion, asserting that his trial counsel rendered ineffective assistance by: (4) failing to request a jury charge defining the terms "statement," "admission," and "confession;" and (5) failing to object to the imposition of consecutive sentences. (Ex. I: Addendum to Rosario § 440 Motion.) Rosario failed, however, to raise the Confession Claim in his § 440 motion or Addendum, despite the First Department's statement on direct appeal that the Confession Claim would be better brought "in a CPL 440.10 motion, where crucial background facts might have been developed on proper inquiry." People v. Rosario, 248 A.D.2d 283, 283, 670 N.Y.S.2d 461, 462 (1st Dep't 1998).

In its opposition, the State argued that the § 440 motion should either be (1) denied on the merits, or (2) summarily dismissed under C.P.L. § 440.10(2)(b)¹¹ because "[t]here are sufficient facts appearing in the record to permit direct appellate review of defendant's claim that he received ineffective assistance of counsel." (Ex. J: Hobbs 7/6/99 Aff. ¶ 3.) The trial court issued an order dated July 8, 1999, summarily denying Rosario's § 440 motion, cryptically noting: "See People's Response." (Ex. K.) By order dated December 23, 1999 and entered January 4, 2000, the First Department denied leave to appeal from the denial of the § 440 motion. (Ex. N.) By order dated March 22, 2000, the New York Court of Appeals dismissed Rosario's application to appeal that denial. (Ex. P.)

11 C.P.L. § 440.10(2)(b) provides that:

the court must deny a motion to vacate a judgment when: . . . (b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal. . . .

Given that Rosario's direct appeal had already been decided at the time of his § 440 motion, the State should have referenced C.P.L. § 440.10(2)(c), which provides:

the court must deny a motion to vacate a judgment when: . . . (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .

Rosario's Federal Habeas Corpus Petition

Rosario's present federal habeas corpus petition is dated June 25, 2001 and was received by the Court's Pro Se Office on June 29, 2001. (Dkt. No. 1.) Rosario's habeas petition asserts that the trial court improperly granted the State's for-cause challenge of a selected but unsworn juror based on the juror's memory lapses. (Dkt. No. 1: Pet. ¶ 13(A), citing Ex. B: Rosario 1st Dep't Br. at 17-22.) The petition also asserts that Rosario's privately-retained trial counsel rendered ineffective assistance by: (1) eliciting at trial Rosario's otherwise inadmissible confession of the crime to his girlfriend (Pet. ¶ 13(B), citing Ex. B: Rosario 1st Dep't Br. at 22-30); (2) failing to investigate the facts of the case (Pet. ¶ 13(C), citing Ex. H: Rosario § 440 motion); (3) failing to consult Rosario about the facts of the case or the conduct of the trial, failing to offer sound legal advice, and failing to prepare Rosario to testify (id.); (4) permitting material evidence (i.e., the car driven by the victims) to be released to the car's owner before the defense could test or investigate it (id.); (5) failing to request a jury charge defining the terms "statement," "admission," and "confession" (Pet. ¶ 13(D), citing Ex. I: Rosario § 440 Addendum); and (6) failing to object to the imposition of consecutive sentences (Pet. ¶ 13(D)).¹²

12 The "Addendum" to Rosario's § 440 motion claimed that trial counsel rendered ineffective assistance by (1) failing to request a jury charge providing legal definitions for the terms "statement," "admission," and "confession," and (2) failing to object to the imposition of consecutive sentences. (Ex. I.) Petition ¶ 13(D) references the § 440 Addendum, but specifically describes only the "legal definitions" claim, and not the consecutive sentences claim. (Pet. ¶ 13(D).) Nevertheless, liberally construing Rosario's pro se habeas petition, see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999), this Court will deem the petition to have asserted the consecutive sentences claim as well.

Rosario also alleged that he had given the same petition to prison officials to mail to this Court on May 4, 2000 — over a year before the filing of the operative June 25, 2001 petition — but that the earlier petition somehow never arrived in Court. (See Pet., attachment of 6/25/01 Letter, 5/4/00 Pet., and other letters to the Court about the status of his May 2000 petition; Dkt. No. 9: Rosario 10/18/01 Aff. ¶ 1 Ex. A.)¹³ The Court ordered the State to respond to the petition and to address whether or not Rosario gave the petition to prison authorities on or about May 4, 2000 (Dkt. No. 3), and ordered Rosario to submit an affidavit particularizing the filing of the May 4, 2000 petition (Dkt. No. 4). The State filed an answering affirmation and brief in which it asserted, inter alia, that Rosario's petition should be dismissed as untimely because Rosario did not give the petition to prison authorities on May 4, 2000. (Dkt. Nos. 7 8.) Rosario filed an affidavit detailing when and how he filed the May 4, 2000 petition. (Dkt. No. 9: Rosario 10/18/01 Aff.)

13 A copy of the May 4, 2000 petition is attached to the June 25, 2001 petition. (Dkt. No. 1: 6/25/01 Pet. Attachment.) All general references to Rosario's claims will be to the June 25, 2001 petition (Dkt. No. 1).

Rosario's Second § 440 Motion

Although Rosario asserted the Confession Claim on direct appeal, the First Department held that: "Defendant's claim of ineffective assistance of counsel was never raised in a CPL 440.10 motion, where crucial background facts might have been developed on proper inquiry . . ., and therefore this Court cannot evaluate the issue without resort to `supposition and conjecture.'" People v. Rosario, 248 A.D.2d 283, 283, 670 N.Y.S.2d 461, 462 (1st Dep't 1998). Subsequently, Rosario failed to include the Confession Claim in his first C.P.L. § 440 motion and addendum. (Exs. H I: Rosario § 440 Motion Addendum.) Having thus declined the First Department's written invitation to assert the Confession Claim by way of collateral attack, the claim was unexhausted and not procedurally barred in state court, as Rosario could raise the claim in a second C.P.L. § 440 motion. Accordingly, this Court gave Rosario the option of either (1) withdrawing the Confession Claim with prejudice, or (2) pursuing the Confession Claim in state court by way of a second C.P.L. § 440 motion. (Dkt. No. 10:1/8/02 Order at 3, citing Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001); see also Dkt. No. 13:2/20/02 Order.)

Rosario duly filed with the trial court a second § 440 motion, asserting the Confession Claim. (Dkt. No. 23:2/26/02 Rosario § 440 Motion.) The State opposed the motion solely on the procedural ground that in his first § 440 motion, Rosario "was in a position adequately to raise the ground or issue underlying the present motion but did not do so." (Dkt. No. 22:10/25/02 State Letter to the Court, enclosing 4/1/02 A.D.A. Hobbs Aff. to N.Y.Sup.Ct. ¶¶ 18-19, quoting C.P.L. § 440.10(3)(c).)

The trial court denied Rosario's second C.P.L. § 440 motion in a Decision and Order dated April 4, 2002, that reads in relevant part as follows:

The motion is denied. There appeared to be overwhelming evidence of defendant's guilt. This court agrees with the Appellate Division that counsel for the defendant was effective. People v. Baldi, 54 N.Y.2d 137. For these reasons as well as for the procedural grounds raised by the People, the motion is denied.

(Dkt. No. 22:10/25/02 State Letter to this Court, enclosing 4/4/02 N.Y.S.up. Ct. Order.) On June 20, 2002, the First Department denied Rosario's application for leave to appeal. (Dkt. No. 18: 7/30/02 State Letter to this Court, enclosing 6/20/02 1st Dep't Order.)

ANALYSIS

I. ROSARIO'S HABEAS CORPUS PETITION IS UNTIMELY UNDER THE AEDPA

The Antiterrorism and Effective Death Penalty Act ("AEDPA") instituted a one-year statute of limitations for habeas corpus petitions:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;. . . .

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

28 U.S.C. § 2244(d)(1)-(2).

A. The Petition Date: May 4, 2000 or June 25, 2001

The Court faces a threshold factual issue. Rosario asserts that on May 4, 2000, he placed a notarized petition in the Elmira Correctional Facility mailbox for delivery to this Court (the "5/4/00 Pet."). (Dkt. No. 9: Rosario 10/18/01 Aff. ¶ 1 Ex. A; Dkt. No. 1: Pet. attachment: 5/4/00 Pet.) If, however, as the State asserts (Dkt. No. 8: State Br. at 38), Rosario did not actually file a petition until June 25, 2001, then it is undisputed and indisputable that his claims would be time-barred.

The State concedes that it bears the burden of proof regarding affirmative defenses such as the statute of limitations. (Dkt. No. 8: State Br. at 35-36.)¹⁴ In addition, although the Second Circuit has not yet decided the issue, Covington v. DiBiase, No. 97-2650, 172 F.3d 37 (table), 1999 WL 48775 at *1 n. 1 (2d Cir. Jan. 29, 1999), other circuit courts have held that prison officials must bear the burden of proving the date papers were delivered by a pro se petitioner, because prison officials are in the best position to establish the delivery date. See, e.g., Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001); United States v. Grana, 864 F.2d 312, 316 (3d Cir. 1989). Indeed, at least one unpublished Second Circuit decision and several district court decisions in this Circuit (including decisions by this Judge) have held that, "in the absence of other evidence," the prisoner's petition will be considered filed on the date he signed the petition or related papers. E.g., Cromwell v. Keane, No. 99-2156, 27 Fed. Appx. 13, 14, 2001 WL 1168546 at *1 (2d Cir. Sept. 28, 2001) (citing Rhodes v. Senkowski, 82 F. Supp.2d 160, 165 (S.D.N.Y. 2001) (Buchwald, D.J. Peck, M.J.) ("Absent evidence to the contrary, the Court assumes that [petitioner] gave his petition to prison officials for mailing on the date he signed it.") (collecting cases)).

14 See, e.g., Acosta v. Artuz, 221 F.3d 117, 121-22 (2d Cir. 2000) (AEDPA statute of limitations is an affirmative defense, not a jurisdictional bar, and State bears burden of proof); Smith v. McGinnis 208 F.3d at 13, 17 (2d Cir.) (AEDPA limitations period is statute of limitations not jurisdictional bar), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000); Overall v. Estate of Klotz, 52 F.3d 398, 403 (2d Cir. 1995) ("Because the statute of limitations is an affirmative defense, the defendant bears the burden of establishing by prima facie proof that the limitations period has expired since the plaintiff's claims accrued.").

Rosario's May 4, 2000 Petition was sworn to before a notary on May 4, 2000. (Dkt. No. 1: Pet. Attachment, 5/4/00 Pet. Last Page.) Rosario has submitted an affidavit in which he describes placing the May 4, 2000 Petition in the prison mailbox on May 4, 2000. (Dkt. No. 9: Rosario 10/18/01 Aff. ¶ 1 Ex. A.)

Unfortunately, the Elmira prison authorities dispose of their mailing records after a year (Dkt. No. 7: A.D.A. Farrington Aff. ¶ 10(a)), depriving this Court of documentary evidence that could have definitively proven whether Rosario mailed the May 4, 2000 Petition. Accordingly, based on the notarized date of May 4, 2000, and Rosario's affidavit that he mailed it on that date, and in the "absence of other evidence," Cromwell v. Keane, 2001 WL 1168546 at *1, Rosario's habeas petition will be deemed filed on May 4, 2000. See also, e.g., Washington v. United States, 243 F.3d at 1301 ("Absent evidence to the contrary in the form of prison logs or other records, we will assume that [petitioner's] motion was delivered to prison authorities the day he signed it. . . ."); Rhodes v. Senkowski, 82 F. Supp.2d at 165.

B. Since the State Does Not Utilize the Mailbox Rule to Determine the Filing Date of the § 440 Petition, the May 4, 2000 Federal Habeas Petition Still is Untimely By Just a Few Days

On June 29, 1998, the New York Court of Appeals denied Rosario leave to directly appeal. People v. Rosario, 92 N.Y.2d 860, 677 N.Y.S.2d 90 (1998). As the State concedes (Dkt. No. 8: State Br. at 37), the AEDPA one-year limitations period began running ninety days later, on September 28, 1998, when Rosario's time to file a petition for certiorari expired. See, e.g., Williams v. Artuz, 237 F.3d 147, 150-51 n. 1 (2d Cir.) ("We . . . hold that the AEDPA limitations period specified in Section 2244(d)(1)(A) does not begin to run until the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or — if the prisoner elects not to file a petition for certiorari — the time to seek direct review via certiorari has expired."), cert. denied, 122 S.Ct. 279 (2001).¹⁵

15 Accord, e.g., Pratt v. Greiner, No. 01-2460, 2002 WL 31285784 at *5 n. 1 (2d Cir. Oct. 4, 2002); Brown v. Artuz, 283 F.3d 492, 497 n. 1 (2d Cir. 2002); Matias v. Artuz, No. 00-2203, 8 Fed. Appx. 9, 10, 2001 WL 300543 at *1 (2d Cir. Mar. 27, 2001), cert. denied, 122 S.Ct. 93 (2001); Wheeler v. Artuz, No. 00-2250, 6 Fed. Appx. 57, 57, 2001 WL 253093 at *1 (2d Cir. Mar. 13, 2001); Martin v. Walker, 02 Civ. 5880, 2002 WL 31509876 at *1 n. 1 (S.D.N.Y. Nov. 12, 2002) (Peck, M.J.); King v. Greiner, 02 Civ. 5810, 2002 WL 31453976 at *1 (S.D.N.Y. Nov. 5, 2002) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2002 WL 1424584 at *3 (S.D.N.Y. July 1, 2002) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Bonilla v. Ricks, 00 Civ. 79225, 2001 WL 253605 at *2 (S.D.N.Y. Mar. 14, 2001) (Peck, M.J.); Shaw v. Mazzuca, 00 Civ. 6941, 2001 WL 66404 at *2 (S.D.N.Y. Jan. 26, 2001) (Peck, M.J.); 28 U.S.C. § 2244(d)(1)(A).

The Second Circuit has held that the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew; such an interpretation would allow an inmate to avoid the effect of the AEDPA's one-year statute of limitations by bringing a belated state collateral attack. E.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied, 531 U.S. 840, 121 S.Ct. 104 (2000).¹⁶ "Rather, § 2244(d)(2) merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Torres v. Miller, 1999 WL 714349 at *4 (citing cases).¹⁷

16 See also, e.g., Bethea v. Girdich, 293 F.3d 577, 578-79 (2d Cir. 2002) ("state-court applications for collateral relief do not `restart' the AEDPA limitations period") (citing Smith v. McGinnis, 208 F.3d at 17); Smaldone v. Senkowski, 273 F.3d 133, 138-39 (2d Cir. 2001) ("[T]he attorney's mistaken belief that the tolling period reset after each state collateral appeal does not constitute the `extraordinary' circumstances warranting equitable tolling."), cert. denied, 122 S.Ct. 1606 (2002); Steadman v. Senkowski, No. 99-2449, 234 F.3d 1263 (table), 2000 WL 1591268 at *1 (2d Cir. Oct. 23, 2000) ("the tolling provision of 28 U.S.C. § 2244(d)(2) excludes time while a state relief application is pending but does not reset the date on which the limitations period begins"); Martin v. Walker, 2002 WL 31509876 at *1 n. 2; Jimenez v. United States, 02 Civ. 1187, 2002 WL 1870060 at *3 (S.D.N.Y. Aug. 14, 2002); Gomez v. Duncan, 2002 WL 1424584 at *3; Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *9 (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.); Stokes v. Miller, 216 F. Supp.2d 169, 174-75 (S.D.N.Y. 2000) (Berman, D.J. Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *6 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Mojica v. David, 99 Civ. 1990, 2000 WL 631385 at *2 (S.D.N.Y. May 16, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 991391 (S.D.N.Y. July 19, 2000) (Cote, D.J.); Martinez v. Stinson, 98 Civ. 7718, 2000 WL 284191 at *3 (S.D.N.Y. Mar. 9, 2000) (Sprizzo, D.J. Peck, M.J.); Torres v. Miller, 99 Civ. 0580, 1999 WL 714349 at *3 (S.D.N.Y. Aug. 27, 1999) (Mukasey, D.J. Peck, M.J.); Lucidore v. New York State Div. of Parole, 99 Civ. 2936, 1999 WL 566362 at *4 (S.D.N.Y. Aug. 3, 1999) (Peck, M.J.), aff'd, 209 F.3d 107 (2d Cir.), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000); Varsos v. Portuondo, 98 Civ. 6709, 1999 WL 558147 at *3 (S.D.N.Y. July 9, 1999) (Batts, D.J. Peck, M.J.); DeVeaux v. Schriver, 98 Civ. 7563, 1999 WL 1216298 at *4 (S.D.N.Y. Apr. 29, 1999) (Peck, M.J.), report rec. adopted, 1999 WL 1095580 (S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.).

17 Accord, e.g., Bethea v. Girdich, 293 F.3d at 578-79; Smith v. McGinnis, 208 F.3d at 17; Martin v. Walker, 2002 WL 31509876 at *1 n. 3; Gomez v. Duncan, 2002 WL 1424584 at *3; Bonilla v. Ricks, 2001 WL 253605 at *2; Shaw v. Mazzuca, 2001 WL 66404 at *2; Mercado v. Portuondo, 2000 WL 1663437 at *9; Stokes v. Miller, 216 F. Supp.2d at 174-75; Foreman v. Garvin, 2000 WL 631397 at *6; Mojica v. David, 2000 WL 631385 at *2; Lucidore v. New York State Div. of Parole, 1999 WL 566362 at *4.

As noted above, Rosario's conviction became final and the AEDPA limitations period started on September 28, 1998. The AEDPA limitations period ran until tolled by Rosario's § 440 motion. If the AEDPA tolled when the § 440 motion was "mailed" on May 27, 1999 (Ex. H), then 241 days ran (and 125 days remained). If, however, as the State asserts (Dkt. No. 8: State Br. at 37 n. 14; Dkt. No. 7: A.D.A. Farrington Aff. ¶ 7), the AEDPA collateral proceeding toll did not begin until the trial court actually received the § 440 motion (i.e., when the motion was actually "filed") on June 3, 1999, then 248 days ran (and 117 days remained).

It is undisputed that Rosario's limitation period began running again on January 4, 2000, when the First Department denied Rosario leave to appeal the trial court's denial of his § 440 motion. (Ex. N; see page 20 above.)¹⁸ The AEDPA limitations period thus ran from January 4, 2000, through the May 4, 2000 date of Rosario's habeas petition, totaling an additional 120 days.¹⁹ See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988) (incarcerated pro se litigants are deemed to have filed their federal habeas petition on the date the papers were handed to prison officials for mailing); Adeline v. Stinson, 206 F.3d 249, 251 n. 1 (2d Cir. 2000) (same).

18 Because the First Department's order denying leave to appeal the § 440 decision was not itself properly appealable, Rosario's appeal to the New York Court of Appeals did not further toll the statute of limitations. See, e.g., Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir.) cert. denied, 551 U.S. 1018, 121 S.Ct. 581 (2000); Martin v. Walker, 2002 WL 31509876 at *1-2 ( cases cited therein); Evans v. Senkowski, No. CV 98-4488, 2002 WL 31360281 at *4 (E.D.N.Y. Oct. 17, 2002).

19 The "leap day" of February 29, 2000, is excluded from AEDPA statute of limitations calculations. See, e.g., Catlett v. Greiner, 01 Civ. 2549, 2001 WL 1267194 at *3 n. 1 (S.D.N.Y. Oct. 23, 2001).

Accordingly, if the AEDPA limitations period was tolled when Rosario mailed his § 440 motion on May 27, 1999, then Rosario's federal habeas petition is timely, but if the toll only began on June 3, 1999 when the state trial court actually received the motion, then Rosario's federal habeas petition is three days untimely. This issue turns on whether the federal "prisoner mailbox rule" announced in Houston v. Lack applies to Rosario's state § 440 motion.

The federal "prisoner mailbox rule" has its genesis in Houston v. Lack, where the Supreme Court interpreted the Federal Rules of Appellate Procedure and held that notice of appeal was timely when the pro se prisoner delivered his papers to prison authorities for mailing to the federal court. 487 U.S. at 270, 108 S.Ct. at 2382. While speaking eloquently about how a pro se prisoner has no choice but to hand his appeal papers to prison authorities for forwarding to the Court,²⁰ it is clear that the Supreme Court was construing federal statutes and rules and not announcing a rule of Constitutional dimension. See, e.g., Davies v. McCaughtry, No. 99-3460, 215 F.3d 1329 (table), 2000 WL 387147 at *1 (7th Cir. Apr. 14, 2000) (rejecting argument that Houston's mailbox rule rests on due process grounds and therefore must be followed by states), cert. denied, 531 U.S. 962, 121 S.Ct. 392 (2000); Jenkins v. Burtzloff, 69 F.3d 460, 461 (10th Cir. 1995) ("The rationale of Houston was not constitutional or equitable in nature; rather, it was based on an interpretation of the word `filed' in the rule and statute governing the timeliness of notices of appeal."); Nigro v. Sullivan, 40 F.3d 990, 995 n. 1 (9th Cir. 1994) (although Houston "rests on policy arguments and some notion of fairness," it contains no explicit reference to due process and the Court "cannot in the name of sympathy rewrite a clear procedural rule").

20 The Supreme Court stated:

The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped "filed" or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk's process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. . . . Worse, the pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay.

Houston v. Lack, 487 U.S. at 270-71, 108 S.Ct. at 2382.

The Second Circuit has extended the Houston v. Lack prisoner mailbox rule to, inter alia, federal civil complaints and habeas corpus petitions in federal court. See, e.g., Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.) ("We conclude that the district court properly extended the prison mailbox rule to petitions for writs of habeas corpus.") ( citing cases for other federal applications of the rule), cert. denied, 122 S.Ct. 197 (2001); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 n. 1 (2d Cir. 1999) (extends prison mailbox rule to Federal Tort Claim Act administrative proceeding, but notes that "Houston does not apply, of course, when there is a specific statutory regime to the contrary"); Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (extends Houston rule to prisoner § 1983 complaint in federal court under the Federal Rules of Civil Procedure), modified on other grounds, 25 F.3d 81 (2d Cir. 1994).²¹

21 See also, e.g., Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *7 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (applying Houston rule to federal habeas petition, citing cases); Rhodes v. Senkowski, 82 F. Supp.2d 160, 165 (S.D.N.Y. 2000) (Buchwald, D.J. Peck, M.J.) (same).

The AEDPA limitation period is tolled during the time in "which a properly filed application for State post-conviction or other collateral review . . . is pending." 28 U.S.C. § 2244(d)(2). Whether a state collateral attack is "properly filed" is a question of state, not federal, law. See Artuz v. Bennett, 121 S.Ct. 361, 363-64 (2000) ("An application is `filed,' as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record. And an application is `properly filed' when its delivery and acceptance are in compliance with the applicable [state] laws and rules governing filings.") (citations omitted). Thus, the question is whether New York would apply the Houston v. Lack prisoner mailbox rule to Rosario's § 440 motion.

Under New York's "commencement-by-filing system" established by C.P.L.R. 304, a special proceeding is commenced by "filing" the petition or motion with the Clerk of Court. See Grant v. Senkowski, 95 N.Y.2d 605, 608-09, 721 N.Y.S.2d 597, 599 (2001) (citing C.P.L.R. 304). In Grant, the New York Court of Appeals rejected the federal prisoner mailbox rule for state proceedings noting that the holding in Houston v. Lack "was based, in part, upon the [Supreme] Court's interpretation of the term `filing' as used in the Federal Rules of Appellate Procedure," and the New York Court of Appeals held that the "Supreme Court's authority in interpreting its own rules exceeds [the New York Court of Appeals'] authority in interpreting the CPLR." Grant v. Senkowski, 95 N.Y.2d at 608, 721 N.Y.S.2d at 599. The New York Court of Appeals concluded:

We recognize the greater impediments pro se prisoners may face over most other litigants in filing their legal papers on time. But, absent any evidence that the Legislature intended to vary for their benefit the filing-by-receipt requirement established in CPLR 304, we cannot depart from the statutorily mandated filing requirements by incorporating a pro se prisoner mailbox exception.

Grant v. Senkowski, 95 N.Y.2d at 609, 721 N.Y.S.2d at 599; accord, e.g., Johnson v. Goord, 288 A.D.2d 811, 812, 733 N.Y.S.2d 766, 767 (3d Dep't 2001) (prisoner's Article 78 proceeding petition deemed filed when received by clerk of court); Thompson v. Selsky, 283 A.D.2d 752, 752, 724 N.Y.S.2d 369, 369 (3d Dep't 2001) (same); James v. Goord, 281 A.D.2d 825, 826, 722 N.Y.S.2d 609, 610 (3d Dep't) (same; prisoner's papers put in prison mail system before limitations period expired but not received by court clerk until after limitations period expired), appeal denied, 96 N.Y.2d 721, 733 N.Y.S.2d 373 (2001).

It appears, therefore, that the New York Court of Appeals would not apply the prisoner mailbox rule to the filing of a C.P.L. § 440 motion with the trial court, but would strictly construe the rule that the papers are "considered filed only upon receipt" by the court.

Accordingly, Rosario's § 440 motion was not filed under New York rules until received by the trial court on June 3, 1999. Hence Rosario's federal habeas petition is untimely. See, e.g., Adams v. LeMaster, 223 F.3d 1177, 1181 (10th Cir. 2000) ("the federal mailbox rule announced in Houston v. Lack does not apply to § 2244(d)(2) for purposes of determining when the tolling period for a properly-filed state petition begins. . . . [w]e too hold state law must determine when a state [collateral attack] is considered filed."), cert. denied, 531 U.S. 1195, 121 S.Ct. 1198 (2001); Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) ("We decline to extend the mailbox rule to the determination of filing dates for state habeas applications."), cert. denied, 529 U.S. 1057, 120 S.Ct. 1564 (2000); Fernandez v. Artuz, 00 Civ. 7601, 2001 WL 506889 (S.D.N.Y. May 15, 2001) (Peck, M.J.), superseded by, 175 F. Supp.2d 682 (S.D.N.Y. 2001) (Wood, D.J.)). The result might seem harsh, but Congress gave prisoners one year to file a habeas petition, cognizant of the delays inherent in prison life.²² See, e.g., Brooks v. Olivarez, No. C 98-134, 1998 WL 474160 at *2 (N.D. Cal. Aug. 5, 1998) ("Congress gave prisoners one year to get to federal court after their convictions became final. . . . That one year gives the prisoner plenty of time to get to federal court and leaves room for the inevitable delays in mail, unpredictable lockdowns, as well as interruptions in research and writing time common in prison."). While prison authorities may have caused a seven-day delay, the balance of time was attributable to Rosario. There is always a risk in litigation, for pro se prisoners or even lawyers, that if one waits until the last minute, something might go wrong.²³ New York State's rules clearly hold that a motion is filed upon "receipt" by the court. Accordingly, Rosario's habeas petition is untimely.

22 Although Congress, of course, is free to amend the AEDPA to apply the prisoner mailbox rule to state filings for AEDPA statute of limitations purposes, it has not done so to date.

23 If prison authorities unreasonably or egregiously delayed delivery of papers to court, a prisoner might be entitled to equitable tolling. In this case, delivery to the court within seven days of mailing was not unreasonable.

This Court recognizes, however, that there is a split of authority on this issue: other district court decisions in this Circuit, an unpublished Second Circuit decision, and decisions in other Circuits have reached a contrary result and applied the prisoner mailbox rule to state filings. See, e.g., Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (applying Houston's mailbox rule to determine date on which state petition was filed for purposes of § 2244(d)(2) even though state had not applied the rule), cert. denied, 533 U.S. 941, 121 S.Ct. 2576 (2001); Milbank v. Senkowski, No. 98-2958, 229 F.3d 1135 (Table), 2000 WL 1459030 at *2 (2d Cir. Sept. 29, 2000) (prison mailing date, rather than court filing date, of motion in state court for collateral relief tolled statute of limitations under AEDPA); Fernandez v. Artuz, 175 F. Supp.2d at 684 (same); Catlett v. Greiner, 01 Civ. 2548, 2001 WL 1267194 at *4 (S.D.N.Y. Oct. 23, 2001) (same).

Accordingly, while this Court recommends dismissing Rosario's petition as time-barred, the issue is not free from dispute, and therefore this Court will also review Rosario's claims on the merits. (In the event the Court affirms on the basis of this issue, it should issue a cetificate of appealability.)

II. ALL OF ROSARIO'S CLAIMS WERE FULLY EXHAUSTED IN STATE COURT OR ARE SO PATENTLY FRIVOLOUS THAT THEY MAY BE CONSIDERED ON THE MERITS EVEN THOUGH UNEXHAUSTED

The State originally argued that Rosario's Confession Claim (Dkt. No. 1: Pet. ¶ 13(B)) was unexhausted because it was raised on direct appeal rather than by way of a C.P.L. § 440 motion. (Dkt. No. 8: State Br. at 25-26.) However, Rosario thereafter exhausted the claim by returning to state court to assert the claim in a second C.P.L. § 440 motion and appealing the denial of the motion to the First Department. (See pages 22-23 above.)

The State also argued that Rosario failed to properly exhaust his Juror Discharge Claim on direct appeal. (Dkt. No. 8: State Br. at 15-17.) Specifically, while the point heading and first paragraph of Rosario's First Department brief on direct appeal cited the Fourteenth Amendment, the brief's argument relied exclusively on state law. (State Br. at 15-16, citing Ex. B: Rosario 1st Dep't Br. at 17-22.) Indeed, Rosario claimed a violation of the constitutional "right to be tried by a jury in whose selection he has had a voice," which, as the cited decisions make clear, is a state law concept. (Ex. B: Rosario 1st Dep't Br. at 17-22, citing People v. Guzman, 76 N.Y.2d 1, 4-6, 556 N.Y.S.2d 7, 11 (1990), People v. Buford, 69 N.Y.2d 290, 297-99, 514 N.Y.S.2d 191, 195-96 (1987).)

A habeas petitioner may "fairly present" his federal claims in state court by, inter alia, asserting "explicit constitutional argument[s], . . . relying on federal and state cases that employ a constitutional analysis, asserting the claim in terms that `call to mind a specific right protected by the Constitution,' or alleging facts that fall `well within the mainstream of constitutional litigation.'" Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995) (quoting Daye v. Attorney General, 696 F.2d 186, 192-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984)), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997). Rosario's summary citation to the Fourteenth Amendment appears to have satisfied this standard, as the Second Circuit has held that "if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court." Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001) (citations omitted) (claim fairly presented where petitioner mentioned due process right to a fair trial and the Fourteenth Amendment in point heading in state appellate brief).²⁴ Although Rosario failed to specifically refer to the "Due Process Clause," his citation to the Fourteenth Amendment combined with his claim that a juror was improperly discharged likely "call[ed] to mind" a due process violation. Levine v. Comm'r of Corr. Servs., 44 F.3d at 124.

24 Accord, e.g., Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even "a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement"; citation to the Fourteenth Amendment in the heading to point one of petitioner's brief, along with framing the question on appeal as one of "due process," satisfied the exhaustion requirement for habeas review purposes); McRae v. Senkowski, 01 Civ. 2916, 2002 WL 1880730 at *7 (S.D.N.Y. Aug. 15, 2002) ("While [petitioner] did not cite to any federal case law, he did make specific reference to `due process' and to his right to a `fair trial' and cited to the 14th Amendment. . . ."); Calderon v. Keane, 97 Civ. 2116, 2002 WL 1205745 at *12 (S.D.N.Y. Feb. 21, 2002) (reference to "due process" and the Fourteenth Amendment satisfied exhaustion requirement); Santana v. Kuhlmann, 97 Civ. 3882, 2001 WL 1143182 at *7 (S.D.N.Y. Sept. 26, 2001) (exhaustion requirement satisfied by, inter alia, reference to Fourteenth Amendment in point heading); McCaskell v. Keane, 97 Civ. 2999, 2001 WL 840331 at *7-8 (S.D.N.Y. July 26, 2001) (claim of denial of "fair trial" and passing reference to Fourteenth Amendment held sufficient to raise claim of denial of federal due process); Monserrate v. Greiner, 00 Civ. 4785, 2001 WL 812151 at *7 (S.D.N.Y. July 19, 2001) (although petitioner failed to refer to either the Fourteenth Amendment or due process, his insufficiency of the evidence claim "call[ed] to mind" the federal Due Process Clause); Flores v. Keane, 211 F. Supp.2d 426, 433-34 n. 13 (S.D.N.Y. 2001) (Berman, D.J.) (reference to Fourteenth Amendment in point headings was sufficient to raise federal due process claim); Ford v. Crinder, 97 Civ. 3031, 2001 WL 640807 at *6 (S.D.N.Y. June 8, 2001) ("Although courts in this Circuit have criticized the practice of merely making passing reference to a constitutional claim in a point heading, they have nevertheless recognized that this satisfies the minimal requirements of Daye.").

The Court need not, however, decide the exhaustion issue, because under § 2254(b)(2), the Court has the discretion to deny claims "on the merits, notwithstanding the failure . . . to exhaust. . . ." Although the Second Circuit has yet to enunciate a standard for determining when unexhausted claims should be denied on the merits,²⁵ the majority of district court decisions in this Circuit have embraced a "patently frivolous" test for dismissing unexhausted claims. See, e.g., Hammock v. Walker, No. 99-CV-6354, 2002 WL 31190945 at *2 (W.D.N.Y. Sept. 17, 2002); Cruz v. Artuz, No. 97-CV-2508, 2002 WL 1359386 at *8 (E.D.N.Y. June 24, 2002); Pacheco v. Artuz, 193 F. Supp.2d 756, 761 (S.D.N.Y. 2002); Rowe v. New York, 99 Civ. 12281, 2002 WL 100633 at *5 (S.D.N.Y. Jan. 25, 2002); Love v. Khulman, 99 Civ. 11063, 2001 WL 1606759 at *5 (S.D.N.Y. Dec. 12, 2001); Shaw v. Miller, No. 99 CV 5020, 2001 WL 739241 at *2 n. 2 (E.D.N.Y. June 26, 2001); Santana v. Artuz, 97 Civ. 3387, 2001 WL 474207 at *3-4 (S.D.N.Y. May 1, 2001). A minority of courts have expressed the test as whether "`it is perfectly clear that the [petitioner] does not raise even a colorable federal claim,' in which case the Court should dismiss the unexhausted claim on the merits (or rather the clear lack thereof)." Hernandez v. Lord, 00 Civ. 2306, 2000 WL 1010975 at *4-5 n. 8 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (internal quotations omitted; citing cases, and analyzing the diverging views without deciding which standard is appropriate); accord, e.g., Padilla v. Keane, 00 Civ. 1235, 2000 WL 1774717 at *3 (S.D.N.Y. Dec. 4, 2000); Orraca v. Walker, 53 F. Supp.2d 605, 611 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); see also, e.g., Basnight v. Keane, No. 99-CV-5907, 2001 WL 901139 at *5 n. 1 (E.D.N.Y. July 31, 2001) (articulating "nonmeritorious" standard rather than "patently frivolous," although claims failed either standard).

25 Although in Jones v. Senkowski, No. 00-2145, 2001 WL 1230800 at *4 (2d Cir. Oct. 5, 2001), the Second Circuit opted for the "patently frivolous" test, that decision was later vacated and withdrawn, Jones v. Senkowski, No. 00-2145, 2002 WL 246451 (2d Cir. May 22, 2002), amended by Jones v. Senkowski, No. 00-2145, 42 Fed. Appx. 485, 2002 WL 1032589 (2d Cir. May 22, 2002). Some of the decisions in the "patently frivolous" line relied on Jones.

As detailed below, Rosario's Juror Discharge Claim fails either standard, as it is both patently frivolous and entirely meritless, and hence the Court can address all of Rosario's claims including the Juror Discharge Claim.

III. ROSARIO'S CONFESSION CLAIM IS BARRED ON ADEQUATE AND INDEPENDENT STATE GROUNDS ²⁶

26 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 Recommendation, see Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *9-11 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *7-10 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *11-13 (S.D.N.Y. July 24, 2002) (Peck, M.J.); 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.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20-21 (S.D.N.Y. May 15, 2002) (Berman, D.J. Peck, M.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8-11 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (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 *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 209-14 (S.D.N.Y. 2001) (Peck, M.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.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); 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) (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); 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.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).

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); 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).

Rosario first raised his Confession Claim on direct appeal, to which the First Department responded: "Defendant's claim of ineffective assistance of counsel was never raised in a CPL 440.10 motion, where crucial background facts might have been developed on proper inquiry . . ., and therefore this Court cannot evaluate the issue without resort to `supposition and conjecture.'" People v. Rosario, 248 A.D.2d 283, 283, 670 N.Y.S.2d 461, 462 (1st Dep't 1998). The First Department nevertheless denied the claim on the merits based on the record before it. Id. Although Rosario subsequently filed a (first) C.P.L. § 440 motion, he failed to include his Confession Claim despite the First Department's express invitation to do so. (Exs. H I: Rosario § 440 Motion Addendum.) As a result, when Rosario filed his federal habeas petition, this Court deemed the Confession Claim to be unexhausted. (Dkt. No. 10:1/8/02 Order at 3; see page 22 above.) Rosario returned to state court and raised the Confession Claim in his second § 440 motion. (Dkt. No. 23: 2/26/02 Rosario § 440 Motion.) The trial court rejected the second § 440 motion both on the merits and on the procedural ground that, under C.P.L. § 440.10(3)(c), the claim should have been raised in Rosario's first § 440 motion. (Dkt. No. 22:10/25/02 State Letter to this Court, enclosing 4/4/02 N.Y.S.up. Ct. Order, quoted at page 23 above page 41 below.)

The question of whether the Confession Claim is barred on adequate and independent state grounds raises a number of issues.

The first issue is whether the First Department's decision on the merits effectively exhausted the claim. This Court adheres to its earlier order that the First Department's decision on direct appeal did not exhaust the claim. While the First Department did reject the claim on the merits, it also held that the claim should have been brought via a § 440 motion. People v. Rosario, 248 A.D.2d at 283, 670 N.Y.S.2d at 462. Similar holdings have repeatedly been held to require further exhaustion via § 440 motions.²⁷

27 C.P.L. § 440.10 motions to vacate a judgment are the usual vehicles for post-conviction ineffective assistance of counsel claims. The New York Court of Appeals has stated that "in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of [trial] counsel be bottomed on an evidentiary exploration by collateral or postconviction proceeding brought under CPL 440.10," since ineffectiveness of counsel is usually not demonstrable on the trial record. People v. Brown, 45 N.Y.2d 852, 853-54, 410 N.Y.S.2d 287, 287 (1978); see, e.g., Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994) (claim based on "a matter clearly outside of the trial record — allegations that his attorney conducted his defense under the influence of drugs" should be raised in a § 440.10 motion, which is the "preferred avenue for inadequate representation claims in New York"); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *8-10 nn. 15-16 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.) (finding claim unexhausted based on similar 1st Dep't decision) ( citing state cases holding proper vehicle for ineffective assistance claim usually is C.P.L. § 440 motion); Otero v. Stinson, 51 F. Supp.2d 415, 418 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.) (further evidentiary exploration by the trial court through CPL § 440 motion necessary where the trial record could not reveal whether trial counsel failed to adequately investigate the facts); Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at *4 (S.D.N.Y. Oct. 7, 1998); Walker v. Miller, 959 F. Supp. 638, 643-44 (S.D.N.Y. 1997) (McKenna, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 294 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.) ("Ineffective assistance of trial counsel motions . . . ordinarily are made by a CPL § 440.10 motion before the trial court, or direct appeal where trial counsel's alleged incompetence could be determined from the existing record."); Walker v. Dalsheim, 669 F. Supp. 68, 70 (S.D.N.Y. 1987) ("The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level.").

The second issue is whether the "state court explicitly invoke[d] a state procedural bar rule as a separate basis for decision," Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10, thus satisfying the standard for procedural bars. The second § 440 decision dismissed on the merits and then, in the alternative, dismissed based on the "procedural grounds" raised by the State:

There appeared to be overwhelming evidence of defendant's guilt. This court agrees with the Appellate Division that counsel for the defendant was effective. . . . For these reasons as well as for the procedural grounds raised by the People, the motion is denied.

(Dkt. No. 22:10/25/02 State Letter to this Court, enclosing 4/4/02 N.Y.S.up. Ct. Order.) The decision incorporated by reference the "procedural grounds" contained in the State's brief, which relied solely on the argument that pursuant to C.P.L. § 440.10(3)(c), the Confession Claim should have been raised in Rosario's first § 440 motion.

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."); 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 of the State of New York, 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."). 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. 10.²⁸

28 State courts, however, are not required to use any particular language in announcing procedural bars:

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. at 739, 111 S.Ct. at 2559.

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, see, e.g., Rudenko v. Costello, 286 F.3d 51, 70 (2d Cir. 2002); Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992), here the second § 440 decision plainly relied on the procedural bar as a conjunctive, rather than a disjunctive, holding. See, e.g., Gonzalez v. Miller, No. 99-2514, 1 Fed. Appx. 71, 74, 2001 WL 38248 at *2-3 (2d Cir. Jan. 12, 2001) (state holding that "error was both unpreserved and harmless" constituted adequate and independent state ground); Fama v. Comm'r 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 at 9 (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."); 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.").²⁹ Thus, the second § 440 decision rested on a state procedural ground.³⁰

29 See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Figueroa v. Greiner, 2002 WL 31356512 at *10 (decision that claim is unpreserved but were it to be reviewed is without merit, sufficient for procedural bar); Velasquez v. Murray, 2002 WL 1788022 at *8; Soto v. Greiner, 2002 WL 1678641 at *12; Larrea v. Bennett, 2002 WL 1173564 at *9 n. 8; Martinez v. Greiner, 2001 WL 910772 at *9 n. 9; Ferguson v. Walker, 2001 WL 869615 at *8 n. 19; Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at *10 (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, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *12-13 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274 (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. at 285; Liner v. Keane, 1996 WL 33990 at *7.

30 The First Department denied, without explanation, Rosario's appeal from the denial of his second § 440 motion. (Dkt. No. 18.) 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. Rosario has presented no facts to rebut that presumption here.

The third issue is whether the state procedural bar is "adequate" in the sense that it is applied "evenhandedly to all similar claims." Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426 (1982) ("Our decisions, however, stress that a state procedural ground is not `adequate' unless the procedural rule is `strictly or regularly followed.' . . . State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims."); accord, e.g., Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) ("a procedural bar will be deemed `adequate' only if it is based on a rule that is `firmly established and regularly followed' by the state in question.") (quoting Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 857 (1991)).

Here, C.P.L. § 440.10(3)(c) — the rule that § 440 courts may dismiss claims not raised in prior § 440 motions — is a "firmly established and regularly followed" rule. See, e.g., People v. Dover, 294 A.D.2d 594, 596, 743 N.Y.S.2d 501, 503 (2d Dep't 2002) (dismissing under, inter alia, C.P.L. § 440.10(3)(c) because defendant could have raised ineffective counsel claim in prior § 440 motion); People v. Dominguez, 257 A.D.2d 511, 512, 685 N.Y.S.2d 14, 15 (1st Dep't) ("The court properly denied defendant's CPL 440.10 motion alleging ineffective assistance of counsel, on the ground that defendant had filed a previous CPL 440.10 motion and could have raised the issues set forth in the second application on the first but failed to do so (CPL 440.10 [3] [c])."), appeal denied, 93 N.Y.2d 872, 689 N.Y.S.2d 434 (1999).³¹ Moreover, district courts in this Circuit have consistently held that C.P.L. § 440.10(3)(c) constitutes an adequate and independent state ground barring habeas review. See, e.g., Jones v. Artuz, No. 97-CV-2063, 2002 WL 31006171 at *4 (E.D.N.Y. Aug. 30, 2002)); Lamberty v. Schriver, 99 Civ. 9245, 2002 WL 1226859 at *3 (S.D.N.Y. Apr. 9, 2002); Pujols v. Greiner, 98 Civ. 0373, 2001 WL 477046 at *6-7 (S.D.N.Y. May 4, 2001); Ryan v. Mann, 73 F. Supp.2d 241, 248 n. 7 (E.D.N.Y. 1998), aff'd, 201 F.3d 432 (2d Cir. 1999); Witt v. Walker, 92 Civ. 2085, 1993 WL 330503 at *4 (S.D.N.Y. Aug. 19, 1993), aff'd, 35 F.3d 553 (2d Cir. 1994); Gil v. Kelly, No. CV-90-0603, 1992 WL 151901 at *3 (E.D.N.Y. June 16, 1992).

31 See also, e.g., People v. Moolenaar, 207 A.D.2d 711, 711, 616 N.Y.S.2d 590, 591 (1st Dep't 1994) ("The court also properly denied defendant's additional CPL 440.10 motion regarding a jury note issue, on the ground that defendant did not raise this issue in his previous CPL 440.10 motion, although in a position adequately to do so (CPL 440.10[3][c])."), appeal denied, 85 N.Y.2d 864, 624 N.Y.S.2d 384 (1995); People v. Thomas, 147 A.D.2d 510, 512, 537 N.Y.S.2d 600, 601 (2d Dep't) ("The court found that the defendant's contentions in his CPL 440.10 motion appeared to be a `recent fabrication' in light of his failure to testify in his own behalf at trial and of his two prior CPL 440.10 motions in which he could have raised the issue but did not do so. CPL 440.10(3)(c) affords the court discretion to deny a motion to vacate a conviction when the defendant in a previous motion `was in a position adequately to raise the ground or issue underlying the present motion but did not do so.'"), appeal denied, 74 N.Y.2d 669, 543 N.Y.S.2d 412 (1989); People v. Washington, 180 Misc.2d 838, 844-46, 694 N.Y.S.2d 296, 300 (Sup.Ct. N.Y. Co. 1999).

The question, however, is not only whether New York "generally" applies § 440.10(3)(c), but whether the rule has been applied evenhandedly to all claims similar to Rosario's claim. See, e.g., Garcia v. Lewis, 188 F.3d at 79 (Although "New York's contemporaneous objection rule is not rendered `inadequate' on account of novelty or sporadic application, . . . [petitioner] does not object to New York's contemporaneous objection rule generally, but rather contends that the rule was misapplied in his case in particular."). Specifically, Rosario asserts that because his trial counsel was disbarred on June 8, 1998 — prior to the May 27, 1999 filing of his first § 440 motion — Rosario's failure to assert the Confession Claim as part of that motion should be excused and his claim should be heard on the merits. (Dkt. No. 23:2/26/02 Rosario 2d § 440 Br. at 15-16.) Rosario relies upon People v. Gil, 285 A.D.2d 7, 729 N.Y.S.2d 121 (1st Dep't 2001), a case involving the same disbarred attorney who represented Rosario at trial, Julio Cesar Rojas. In Gil, the defendant moved under C.P.L. § 440.10 to vacate his conviction on the grounds that his attorney, Rojas, had rendered ineffective assistance. People v. Gil, 285 A.D.2d at 10-11, 729 N.Y.S.2d at 124-25. The trial court denied the motion because, inter alia, defendant had failed to support his motion with an affidavit from attorney Rojas. Id. at 11, 729 N.Y.S.2d at 125. The First Department reversed and remanded for a new trial because, inter alia: (1) the disbarment of attorney Rojas prior to the motion excused defendant's failure to submit an attorney affidavit; and (2) "this appears to be the `rare case' where the trial record itself permits review of an ineffective assistance of counsel claim on the direct appeal." Id. at 11-12, 729 N.Y.S.2d at 125.

Gil, however, is inapposite. The procedural default in this case was caused, not by Rosario's failure to submit an attorney affidavit on his first § 440 motion, but by his complete failure to include the Confession Claim in his first § 440 motion.³² Upon failing to obtain Rojas' affidavit, Rosario could have included (as in Gil) his own affidavit describing Rojas' disbarment and his efforts to obtain Rojas' affidavit. If Rosario had taken this course, and if the § 440 court and First Department had then denied him relief based on his failure to submit an attorney affidavit, then Rosario would have grounds to complain, a la Gil, that the state court procedural default was not an adequate and independent state ground barring habeas relief. Rosario's failure to assert the Confession Claim as part of his first § 440 motion mandates dismissal of that claim under the adequate and independent state ground doctrine.

32 Rosario's direct appeal to the First Department was filed in March 1997, long before Rojas' June 8, 1998 disbarment. (See Ex. B: Rosario 1st Dep't Br.) As a result, the First Department had no knowledge of Rojas' disbarment when it confirmed Rosario's conviction. The First Department simply followed well-settled procedure in observing that Rosario should have asserted the Confession Claim via a § 440 motion.
The Court also notes that § 440 motions are designed to expand the record to include not only attorney affidavits, but also other admissible material, such as the affidavit Rosario submitted on his first § 440 motion complaining about Rojas' failure to consult. Thus, even if the First Department had known about Rojas' disbarment, the necessity to exhaust Rosario's claim via the § 440 process would not have been an exercise in futility, as Rosario could at least have submitted his own affidavit relating to the Confession Claim.
Moreover, the Gil Court ultimately found not merely that the attorney affidavit should have been excused, but that the trial record was sufficient to decide Gil's ineffective assistance claim. Here, by contrast, the First Department expressly held that absent further development of the record via a § 440 motion, it could not "evaluate the issue without resort to `supposition and conjecture.'" People v. Rosario, 248 A.D.2d 283, 283, 670 N.Y.S.2d 461, 462 (1st Dep't 1998).

Because there is an adequate and independent finding by the trial court that Rosario procedurally defaulted on his Confession Claim, Rosario 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 2565.³³ Rosario has failed to allege cause and prejudice or that a fundamental miscarriage of justice would result if his Confession Claim is not addressed.

33 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").

Accordingly, Rosario's Confession Claim is barred from habeas review.³⁴ IV. THE APPLICABLE AEDPA REVIEW STANDARD ³⁵

34 Even if the Court were to review the Confession Claim, it is without merit. Rosario's trial counsel was unable to suppress Rosario's confessions at the Huntley hearing, and thus was faced with a trial at which the jury would see his client's videotaped confession. His trial strategy, therefore, was to attack the confessions as involuntary. (See pages 7-8 16 above.) He introduced the girlfriend's written statement referring to Rosario's alleged confession to her in order to compare that signature with another document with her signature, and argue that she did not sign that "confession" document. (See pages 12-13 16 above.) This was part of his strategy of attempting to show that the police testimony made no sense and that all of Rosario's confessions were involuntary. The Court cannot say that, faced with his client's videotaped confession, this strategy demonstrated ineffective assistance. The Court also notes that counsel Rojas was not disbarred for ineffectiveness, but rather for financial irregularities (and misrepresenting his disciplinary history). See In re Rojas, 242 A.D.2d 198, 674 N.Y.S.2d 91 (2d Dep't 1998); see also United States v. Rondon, No. 98-1717, 99-1181, 205 F.3d 1326 (table), 2000 WL 232274 at *2 (2d Cir. Feb. 25, 2000) (Rojas not ineffective at Rondon's trial, despite having been disbarred), cert. denied, 531 U.S. 915, 121 S.Ct. 271 (2000). See also discussion at pages 63-65 below.

35 For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); 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.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); 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); 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).

Before the Court can determine whether Rosario is entitled to federal habeas relief for his claims, 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).

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 1519.³⁶ 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 1523.³⁷ "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, 2002 WL 31299838 at *2.

36 Accord, e.g., 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).

37 Accord, e.g., DelValle v. Armstrong, No. 01-2675, 2002 WL 31299838 at *1 (2d Cir. Sept. 5, 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 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 1519-20.³⁸

38 Accord, e.g., DelValle v. Armstrong, 2002 WL 31299838 at *1; 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. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id.³⁹ 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 1521.⁴⁰ 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 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord, e.g., Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184. 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; accord Yung v. Walker, 296 F.3d at 135. 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.

39 See also, e.g., DelValle v. Armstrong, 2002 WL 31299838 at *1 ("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.").

40 Accord, e.g., 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.

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, e.g., Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, No. 02-7208, 2002 WL 31520415 (Dec. 16, 2002); 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."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).⁴¹ On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).⁴²

41 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., Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93.

42 Where the Appellate Division states that the claims are "`either unpreserved for appellate review or without merit,'" but it is clear from the record that a claim was preserved so that the decision must have been on substantive grounds, the Second Circuit "read[s] the state court's opinion as having adjudicated [the petitioner's] claim on its merits [and] [t]hus, the unreasonable application standard of AEDPA applies." Ryan v. Miller, 303 F.3d at 246 (citations omitted).

Turning to the facts of this case, there is no dispute that the Juror Discharge Claim was adjudicated on the merits, as the First Department offered no procedural grounds for dismissal. People v. Rosario, 248 A.D.2d 283, 283, 670 N.Y.S.2d 461, 462 (1st Dep't 1998). Thus the AEDPA deferential review standard clearly governs the Juror Discharge claim.

By contrast, it is unclear whether the remaining four ineffective counsel claims (asserted in Rosario's first C.P.L. § 440 motion) were adjudicated on the merits. The trial court disposed of all four claims by way of a summary denial that stated, in handwriting, "See People's Response." (Ex. K.) However, the "People's Response" (i.e., the State's opposition brief) argued that the § 440 motion should be either (1) denied on the merits, or (2) summarily dismissed under C.P.L. § 440.10(2)(c)⁴³ because "[t]here are sufficient facts appearing in the record to permit direct appellate review of defendant's claim that he received ineffective assistance of counsel." (Ex. J: Hobbs 7/6/99 Aff. ¶ 3.)

43 As noted above, the State's § 440 brief actually referenced C.P.L. § 440.10(2)(b), which provides that:

the court must deny a motion to vacate a judgment when: . . . (b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal. . . .

Given that Rosario's direct appeal had already been decided at the time of his § 440 motion, the State should have referenced § 440.10(2)(c), which provides:

the court must deny a motion to vacate a judgment when: . . . (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him. . . .

The cryptic, handwritten statement on a summary denial ("See People's Response") is an insufficient basis for this Court to conclude that the § 440 court intended to adopt the State's entire brief, such that all four claims were dismissed on both the merits and procedural grounds.

Nor is there any evidence that the decision must have been based on the merits or that it could not have been based on procedural grounds.⁴⁴ New York State courts often dismiss § 440 claims for failure to raise the claims on direct appeal, citing C.P.L. § 440.10(2)(c). See, e.g., Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) (dismissal of ineffective trial counsel claim under § 440.10(2)(c) was adequate and independent state ground); Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997) (same); Funderbird-Day v. Artuz, 97 Civ. 7786, 2002 WL 31427345 at *3-4 (S.D.N.Y. Oct. 29, 2002) (state court dismissed under § 440.10(2)(c) petitioner's claim that trial counsel "failed to familiarize himself with" certain evidence; habeas court found such dismissal an adequate and independent state ground). Rosario did submit with his § 440 motion two affidavits (Ex. H: Rosario 3/27/99 § 440 Aff. Rosario 5/27/99 § 440 Aff.) in which he decried his trial attorney's failure to consult with him, which relates to one of the ineffective counsel claims (Pet. ¶ 13(C)). Moreover, three of the four remaining ineffective counsel claims (failure to investigate, failure to consult, and permitting evidence to be released before investigating) could not reasonably be adjudicated based on the trial record alone. But our task at this juncture is to determine whether the state court could have dismissed on procedural grounds, and this Court cannot say as a matter of law that the State court's dismissal could not have been on procedural grounds.

44 Cf. Ryan v. Miller, 303 F.3d at 246 n. 6 (even though the Appellate Division dismissed the claim as "`either unpreserved for appellate review or without merit,'" "[g]iven that neither party disputes that [petitioner] properly objected and preserved his Confrontation Clause challenge for review, and given that `there is nothing in [the state court's] decision to indicate that the claims were decided on anything but substantive grounds,' Aparicio, 269 F.3d at 94, we read the state court's opinion as having adjudicated [petitioner's] claim on its merits.").

We thus are effectively left with a disjunctive dismissal — the equivalent of a dismissal on "either" procedural grounds "or" on the merits. The Second Circuit has offered conflicting views on whether such an "either/or" dismissal should be considered an adjudication on the merits so as to trigger the deferential AEDPA review standard.

In Rudenko v. Costello, the Second Circuit held that either/or dismissals neither foreclosed federal habeas corpus review nor qualified for the deferential AEDPA standard:

Such a formulation does not foreclose federal habeas review, because it is not a clear statement of an independent state ground for the Appellate Division's rejection of the claim. But that formulation neither discloses the basis on which the Appellate Division might have found a particular claim barred by state law nor the basis on which that court might have found the claim meritless.

. . . .

. . . Because the state court may not have decided these claims on their merits, no AEDPA deference by the district court on these claims was warranted. Rudenko v. Costello, 286 F.3d at 70-71 (citations omitted).⁴⁵

45 See also, e.g., Cox v. Miller, 296 F.3d 89, 101 (2d Cir. 2002) (to determine whether "either/or" dismissal was adjudicated on the merits, court "would ordinarily apply the distinct analysis adopted by our decision in Sellan"; such analysis held unnecessary, because disposition would be the same under de novo and AEDPA standards); Fluellen v. Walker, No. 01-2474, 41 Fed. Appx. 497, 500 n. 1, 2002 WL 1448474 at *3 n. 1 (2d Cir. June 28, 2002) (declining to determine Rudenko's effect on Sellan; affirming habeas court's treatment of "either/or" dismissal as an adjudication on the merits, as disposition would be same whether using de novo or AEDPA standards).

In Ryan v. Miller, by contrast, faced with an Appellate Division holding that petitioner's claims were "either unpreserved for appellate review or without merit," the Second Circuit came to the opposite conclusion:

There is no reason . . . to doubt that AEDPA applies in this situation because the only alternative to finding the claim adjudicated on the merits would be finding the claim procedurally barred, in which case we would not have entertained the claim in the first instance (absent a showing of cause and prejudice).

303 F.3d at 246.⁴⁶

46 The Ryan court attempted to distinguish Rudenko on the ground that Rudenko involved district court habeas decisions so lacking in rationale that they did not "permit meaningful appellate review." Ryan v. Miller, 303 F.3d at 246 n. 6 (quoting Rudenko v. Costello, 286 F.3d at 65). This statement in Ryan, however, appears to be dicta: the Ryan court emphasized that because the parties had stipulated that the claim at issue had been "properly preserved," the Appellate Division's decision must have been on the merits. Ryan v. Miller, 303 F.3d at 246 n. 6.

While this Court believes Rudenko is correct, this Court need not resolve the apparent Rudenko — Ryan conflict because, as explained in greater detail below, the four remaining ineffective counsel claims should be dismissed under either the de novo or the deferential AEDPA standard. See, e.g., Cox v. Miller, 296 F.3d at 101 (unnecessary to determine whether "either/or" dismissal constituted an adjudication on the merits, because "our disposition of this appeal would be the same whether we were to review the petitioner's claim de novo or with AEDPA deference"); Fluellen v. Walker, 41 Fed. Appx. at 500 n. 1, 2002 WL 1448474 at *3 n. 1 (same; refusing to decide Rudenko's effect on Sellan).

V. ROSARIO'S JUROR DISCHARGE CLAIM SHOULD BE DISMISSED AS PATENTLY FRIVOLOUS

Rosario alleges that the trial court improperly granted the State's for-cause challenge of a selected but unsworn juror based on the juror's memory lapses. (Dkt. No. 1: Pet. ¶ 13(A) citing Ex. B: Rosario 1st Dep't Br. at 17-22.) In support, although Rosario superficially references the Fourteenth Amendment, he offers nothing but state law arguments that are not cognizable on federal habeas review.

Indeed, under federal law, courts have "broad discretion . . . to replace a juror at any time before the jury retires if there is reasonable cause to do so, and a reviewing court will only find abuse of that discretion where there is `bias or prejudice to the defendant.'" United States v. Purdy, 144 F.3d 241, 247 (2d Cir.) (quoting United States v. Gambino, 951 F.2d 498, 503 (2d Cir. 1991)), cert. denied, 525 U.S. 1020, 119 S.Ct. 548 (1998). "`Prejudice' in this context exists when the discharge is without `factual support, or for a legally irrelevant reason.'" United States v. Purdy, 144 F.3d at 247 (citation omitted); accord, e.g., United States v. Fama, No. 01-1233, 38 Fed. Appx. 70, 72, 2002 WL 538005 at *2 (2d Cir. Apr. 11, 2002); United States v. Padilla, Nos. 98-1360, 98-1374, 98-1543, 205 F.3d 1326 (table), 2000 WL 234427 at *4 (2d Cir. Feb. 7, 2000). "`[S]ubstitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any party.'" United States v. Millar, 79 F.3d 338, 342 (2d Cir. 1996) (quoting United States v. Floyd, 496 F.2d 982, 990 (2d Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 654 (1974)).⁴⁷

47 While this federal standard is derived from the Federal Rules of Criminal Procedure, it has consistently been applied to state decisions on federal habeas corpus review. See, e.g., Carrasco v. David, 00 Civ. 5693, 2002 WL 1205750 at *6 (S.D.N.Y. June 4, 2002); see also cases cited at page 58 n. 48.

Here, after conducting a reasonable factual inquiry, the trial judge decided to discharge an unsworn juror because the juror's self-described memory lapses "might affect his ability to . . . sit in a trial and recall testimony and be able to deliberate." (V.D. 37-38; see page 6 above.) That factual determination must be accorded broad deference under the AEDPA. 28 U.S.C. § 2254(d)(2). Rosario has offered nothing but generalities to dispute the trial court's decision, and has certainly not proffered any Batson or other constitutional challenges. "[T]he court merely replaced one impartial juror with another impartial juror, an action that surely cannot have deprived petitioner of his right to a fair trial." Ocasio v. David, 99 Civ. 10760, 2001 WL 930847 at *1 (S.D.N.Y. Aug. 16, 2001) (quotations omitted).⁴⁸ Given the broad deference that must be accorded the trial court's plainly reasonable decision, Rosario's Juror Discharge claim should be denied as patently frivolous.

48 See also, e.g., Cruz v. Artuz, No. 97-CV-2508, 2002 WL 1359386 at *13 (E.D.N.Y. June 24, 2002) ("proper exercise of the trial court's discretion not to remove the jurors"); Carrasco v. David, 2002 WL 1205750 at *6; Shepard v. Artuz, 99 Civ. 1912, 2000 WL 423519 at *5-6 (S.D.N.Y. Apr. 19, 2000) (denying habeas claim relating to state court's discharge of juror to attend parent's funeral); Edmonds v. McGinnis, 11 F. Supp.2d 427, 432-33 (S.D.N.Y. 1998) (denying habeas claim regarding court's discharge of sworn juror who asked to be released to attend upcoming real estate closing); Rivalta v. Artuz, 96 Civ. 8043, 1997 WL 401819 at *5-6 (S.D.N.Y. July 16, 1997) (denying habeas claim re discharge of sworn juror for lateness); Taxiarhopoulos v. Spence, No. CV 92-0790, 1992 WL 403112 at *5-6 (E.D.N.Y. Dec. 28, 1992) (Raggi, D.J.) (denying habeas discharge of jurors for failing to appear on time).

VI. ROSARIO'S REMAINING INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SHOULD BE DENIED

Rosario's ineffective assistance — Confession Claim should be denied as barred from review on adequate and independent state grounds (see Point III above), leaving for discussion in this section the following ineffective assistance of trial counsel claims: (1) failing to investigate the facts of the case (Pet. ¶ 13(C), citing Ex. H: Rosario § 440 motion); (2) failing to consult Rosario about the facts of the case or the conduct of the trial, failing to offer sound legal advice, and failing to prepare Rosario to testify (id.); (3) permitting material evidence (i.e., the car driven by the victims) to be released to the car's owner before the defense could test or investigate it (id.); (4) failing to request a jury charge defining the terms "statement," "admission," and "confession" (Pet. ¶ 13(D), citing Ex. I: Rosario § 440 Addendum); and (5) failing to object to the imposition of consecutive sentences (Pet. ¶ 13(D).).

A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ⁴⁹

49 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 Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); 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.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

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. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064; accord, e.g., Bell v. Cone, 122 S.Ct. 1843, 1850 (2002).

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); accord, e.g., Bell v. Cone, 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 2068.⁵⁰

50 See also, e.g., Bell v. Cone, 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. 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). Rather, the phrase describes 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) (quoting Strickland 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 2069.⁵¹

51 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 2066.⁵²

52 See also, e.g., 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.

B. The Disbarment of Rosario's Counsel is Not A Strickland Factor

Rosario's counsel, Julio Cesar Rojas, was disbarred "on default" by the Second Department on June 8, 1998 for failing to answer a petition charging him with "four charges of professional misconduct, including making material misrepresentations about his disciplinary history, making material misrepresentations under oath, and failing to refund money paid to him for services not yet completed at the time he was relieved by new counsel." Matter of Cesar Rojas, 242 A.D.2d 198, 199-200, 674 N.Y.S.2d 91, 91 (2d Dep't 1998); see United States v. Rondon, 204 F.3d 376, 378 n. 1 (2d Cir.) (describing Cesar Rojas' disbarment), cert. denied, 531 U.S. 915, 121 S.Ct. 271 (2000).⁵³ Rosario has asserted that counsel's disbarment proves his incompetence. (Dkt. No. 16: Rosario 5/3/02 Aff. ¶ 15.) This Court disagrees.

53 Certain of Rosario's affidavits refer to his counsel as "Julio Manuel Rojas" (e.g., Ex. H: Rosario 3/27/99 Aff. ¶ 2), the disbarment decision and other documents refer to "Julio Cesar Rojas" (Dkt. No. 23: Rosario 2d § 440 Motion App. Ex. A), and the transcripts in this case alternatively refer to both "Manuel" (H.1) and "Cesar" (Tr. 1). Because the State has not asserted that "Manuel" and "Cesar" are different people, the Court will assume that Rosario's counsel was, in fact, the "Julio Cesar Rojas" who was disbarred on June 8, 1998.

Counsel's disbarment clearly did not render him per se ineffective, as he was disbarred over three years after Rosario's March 17, 1995 sentencing, for reasons having nothing to do with his representation of Rosario. See, e.g., United States v. Rondon, 204 F.3d at 379-18 (no per se ineffective counsel from Rojas' representation of Rondon at trial during time Rojas was disbarred); Bellamy v. Cogdell, 974 F.2d 302, 306-07 (2d Cir. 1992) (en banc) (attorney not per se ineffective, where he was suspended from practice after trial based on pretrial admission of mental and physical incapacity), cert. denied, 507 U.S. 960, 113 S.Ct. 1383 (1993). Further, counsel's disbarment is not even a factor in this Court's Strickland analysis. Courts must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066. Rojas must be judged solely based on his performance at Rosario's trial. See, e.g., United States v. Eugenio, No. 00-1391, 33 Fed. Appx. 3, 5, 2002 WL 491931 at *1 (2d Cir. Apr. 1, 2002) ("[Defendant] claims ineffective assistance because his counsel failed to inform [defendant] of the disciplinary charges that led to the counsel's disbarment. But given that the disbarment proceedings were unrelated to his prosecution, [defendant] fails to demonstrate how those proceedings caused him prejudice."); Shark v. Artuz, 97 Civ. 5961, 1998 WL 647197 at *1 (S.D.N.Y. Sept. 22, 1998) ("While petitioner has presented evidence that his trial counsel was subsequently disbarred because of his improper handling of criminal cases, petitioner has not established that counsel was ineffective in this case. . . . A review of the record demonstrates that petitioner received competent representation from counsel whose tactical decisions, though unsuccessful, were well within the range of reasonable professional judgment."); Badia v. Artuz, No. 95 CV 3212, 1998 WL 199828 at *1-3 (E.D.N.Y. Mar. 16, 1998) (counsel's disbarment for drug use while conducting trial not evidence of ineffectiveness); United States v. Mak, 83 CR. 742, 1988 WL 125677 at *11 (S.D.N.Y. Nov. 15, 1988) (Counsel's "disbarment was not grounded in any way on events relating to the representation of [petitioner]. [Petitioner's] Sixth Amendment claim of ineffective counsel must be judged on the basis of what occurred at the trial of this case, not on the basis of disbarment on unrelated charges."), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 857, 110 S.Ct. 164 (1989). In fact, in United States v. Rondon, No. 98-1717, 99-1181, 205 F.3d 1326 (table), 2000 WL 232274 (2d Cir.), cert. denied, 531 U.S. 915, 121 S.Ct. 271 (2000), the Second Circuit denied an ineffective counsel claim as to this particular attorney, Rojas, without once mentioning the attorney's disbarment as a factor in the court's Strickland analysis.

C. Application of the Strickland Standard to Rosario's Remaining Ineffective Counsel Claims

1. Rosario's Ineffective Assistance Claim Regarding the Failure to Consult With Rosario or Offer Sound Legal Advice Should Be Denied

Rosario claims that his trial counsel rendered ineffective assistance by failing to consult Rosario about the facts of the case or the conduct of the trial, failing to offer sound legal advice, and failing to prepare Rosario to testify. (Dkt. No. 1: Pet ¶ 13(C), citing Ex. H: Rosario § 440 Br. at 7-8, 12-14.) This claim should be denied, both because it is hopelessly vague and because there is no evidence Rosario was prejudiced by his counsel's alleged failures.

Rosario asserts that he retained Rojas as his trial counsel in February 1995, and then met with Rojas on two occasions prior to the Huntley hearing, which was held on February 10, 14 and 15, 1995 (H. 1-366). (Ex. H: 3/27/99 Rosario § 440 Aff. ¶ ¶ 2-5.)

After the hearing [Rosario] advised Mr. Rojas that his family had no more funds with which to pay the remaining fees owed him.

Thereafter [Rosario's] communication was completely cut off with Mr. Rojas. No calls made by [Rosario] were accepted, nor did Mr. Rojas visit [Rosario] in Rikers Island as they had agreed upon.

At trial Mr. Rojas took no time to consult with deponent as to what was transpiring, nor did he give deponent any sound legal advi[c]e as to any offers made by the people or if evidence he had seen could be overcome, also there was no pre-trial investigation done by Mr. Rojas pertaining to the car.

(Id. ¶¶ 6-8.) According to Rosario, "[t]he five minute conversations between trial counsel and [Rosario] in the courthouse bullpens were not sufficient to appraise [sic] [Rosario] of what would be transpiring on any given day of the proceedings." (Ex. H: 5/27/99 Rosario § 440 Aff. ¶ 7.)⁵⁴ "Trial counsel also knew well in advance that his client wished to testify at trial and did nothing whatsoever to prepare his client for this experience, another prevailing professional practice. . . ." (Ex. H: Rosario § 440 Br. at 14.)

54 In his C.P.L. § 440 brief, Rosario stated "The longest counsel ever spoke with his client were several five minute conversations in the courthouse bullpen's while awaiting his appearances before the court, which was totally insufficient." (Ex. H: Rosario § 440 Br. at 8; see id. at 13-14.)

Rosario's claim as to lack of communication is somewhat corroborated by the hearing and trial record. Just before the Huntley hearing began on February 10, 1995, Rosario asked the court to "relieve" his attorney "[d]ue to lack of communication and there has been no motion put in for me." (H. 3.) At the same hearing, Rosario's counsel informed the court: "I already stated previously that I wished to be relieved from this case because only a minimal down payment had been set, no money seems to have been forthcoming." (H. 6.) It is unclear, however, whether Rosario has accurately described the extent of his communications with Rojas, as Rosario appears to be an unreliable affiant.⁵⁵

55 For example, although Rosario states that he retained Rojas in February 1995 (Ex. H: 3/27/99 Rosario § 440 Aff. ¶ 2), the actual retention date appears to have been earlier, as Rojas stated at the February 1995 Huntley hearing that he attempted to pick up certain evidence from the State around Christmas — presumably December 1994 (H. 283-84). Moreover, Rosario asserts that his counsel called no witnesses at the Huntley hearing (3/27/99 Rosario § 440 Aff. ¶ 5), even though his counsel called Detective Alan Hayes (H. 265-76).

However, even if the Court were to accept Rosario's averments regarding his lack of communication with counsel, his ineffective assistance claim should still be denied. Because Strickland admonishes against mechanical standards for ineffectiveness, there is no set rule for the number of times counsel must meet with a defendant. See, e.g., United States ex rel. Testamark v. Vincent, 496 F.2d 641, 642-43 (2d Cir. 1974) (rejecting failure to consult claim where attorney conducted an initial interview, "another interview occurred on the eve of trial," and petitioner "was before the court with counsel on various calendar calls and was aware of all plea bargaining efforts."), cert. denied, 421 U.S. 951, 95 S.Ct. 1685 (1975); Wojtowicz v. United States, 550 F.2d 786, 792 (2d Cir.) ("In evaluating claims of ineffective assistance of counsel it has long been the rule that `time consumed in oral discussion and legal research is not the crucial test. . . . The proof of the efficiency [sic; efficacy] of such assistance lies in the character of the resultant proceedings, . . .'") (citation omitted), cert. denied, 431 U.S. 972, 97 S.Ct. 2938 (1977); United States ex rel. Bradley v. McMann, 423 F.2d 656, 657 (2d Cir. 1970) (rejecting ineffective counsel claim even though attorney "did not interview or consult with [defendant] until the day trial was to begin"), cert. denied, 400 U.S. 994, 91 S.Ct. 464 (1971); Byas v. Keane, 97 Civ. 2789, 1999 WL 608787 at *5 (S.D.N.Y. Aug. 12, 1999) (Petitioner meeting with counsel twice for five or ten minutes held sufficient. "To require that counsel meet with petitioner a specific number of times would effectively establish a mechanical rule in defiance of Strickland."). Rosario's claim cannot, therefore, rest on a bare allegation that his counsel did not consult with him long enough.

Rather, Rosario has the burden of proving that the alleged lack of communication with counsel prejudiced his defense. Rosario cannot meet that burden. This Court has read the entire record of the Huntley hearing and trial, which reveals that trial counsel had a firm grasp of all relevant facts, effectively cross-examining the State's witnesses at the Huntley hearing and at trial, examining Rosario at trial, and arguing both at the Hunley hearing and on summation at trial that Rosario's confessions were involuntary.

As the Second Circuit held in a similar case:

[A] review of the trial record reveals that [petitioner's] counsel performed more than adequately in his direct examination of [petitioner]. He demonstrated ample familiarity with the particulars of [petitioner's] background, which shows that he had sufficient preparation. Most importantly, [petitioner] does not point to any specific act his attorney should have performed to prepare the defense better, or what would have been achieved by additional face-to-face communication.

Billy-Eko v. United States, 8 F.3d 111, 118 (2d Cir. 1993); accord, e.g., United States v. Wilson, No. 00-1042, 216 F.3d 1074 (table), 2000 WL 778021 at *3 (2d Cir. June 15, 2000) ("[I]t is far from clear that Wilson's affidavit, read in its totality, even alleges that his trial counsel failed adequately to consult and inform him about his right to testify and the progress of his case. Even assuming arguendo that appellant was not so advised, he has made no showing that his failure to testify somehow prejudiced his defense."), cert. denied, 531 U.S. 945, 121 S.Ct. 343 (2000); United States v. Patasnik, 89 F.3d 63, 68 (2d Cir. 1996) (rejecting defendant's ineffective counsel claims based on, inter alia, alleged failure to prepare and failure to listen to defendant's version of events, because "in [counsel's] well-researched and articulate statement before the district court, he raised numerous objections to the presentencing report and demonstrated a thorough knowledge of [defendant's] background and the record"); United States ex rel. Testamark v. Vincent, 496 F.2d at 642-43 (petitioner failed to show that attorney's infrequent visits impaired his defense); Lou v. Mantello, No. 98-CV-5542, 2001 WL 1152817 at *10 (E.D.N.Y. Sept. 25, 2001) ("[A]t trial petitioner was bound by the story he had given to the police in his oral, written and videotaped statements. Thus, even if he could demonstrate that his counsel failed to consult with him, [petitioner] could not establish that further consultation would have altered the defense in a manner that `undermine[d] confidence in the outcome of the case.'") (quoting Strickland); Byas v. Keane, 1999 WL 608787 at *7 ("petitioner does not show that the relatively few meetings between himself and his appointed counsel adversely impacted counsel's preparation and performance during the pretrial hearing or at trial"); Slevin v. United States, 98 Civ. 0904, 1999 WL 549010 at *5 (S.D.N.Y. July 28, 1999) ("petitioner has not explained how further discovery, additional research or increased communication would have uncovered facts or arguments to support a successful defense"); Farrington v. Senkowski, 19 F. Supp.2d 176, 178 (S.D.N.Y. 1998) (Parker, D.J.) ("The fact that counsel is prepared and familiar with the relevant facts and legal principles is usually sufficient to defeat a claim that trial counsel was ineffective.") (citing United States v. DiPaolo, 804 F.2d 225, 234 (2d Cir. 1986)), aff'd, 214 F.3d 237 (2d Cir. 2000).

In this case, the evidence against Rosario was overwhelming, consisting of, inter alia, Rosario's written and videotaped confession to the police (i.e., the third and fourth statements). It is highly unlikely that additional communication between Rosario and his counsel would have changed the trial outcome. See, e.g., Byas v. Keane, 1999 WL 608787 at *7 ("Given the weight of this evidence, it follows that petitioner was not prejudiced by counsel's" alleged failure to consult with petitioner.); Slevin v. United States, 1999 WL 549010 at *5 ("Even assuming counsel's preparation was professionally deficient, the overwhelming record support for petitioner's conviction belies any finding of prejudice."). As the Second Circuit previously has expressed, where the evidence of guilt is very strong, "`there is not too much the best defense attorney can do.'" United States ex rel. Testamark v. Vincent, 496 F.2d at 643 (citation omitted). Rosario's claim therefore should be denied.

2. Rosario's Ineffective Assistance Claim Regarding The Failure to Investigate and Permitting Material Evidence to be Released Should Be Denied

Rosario asserts that "[t]rial counsel was not prepared to deal with a case of this magnitude, due to his lack of investigation and unpreparedness in case law and procedures pertaining to a murder case." (Ex. H: 5/27/99 Rosario § 440 Aff. ¶ 6; see also id. ¶ 8; Dkt. No. 1: Pet ¶ 13(C), citing Ex. H: Rosario § 440 Br. at 7-12, 14-15.) This claim should also be denied for vagueness and lack of evidence of prejudice.

Rosario claims that at their first meeting, he "advised Mr. Rojas that an investigator should be retained to canvas the area to interview possible witnesses." (Ex. H: 3/27/99 Rosario § 440 Aff. ¶ 3.) At their second interview, Rosario "requested that Mr. Rojas inspect the vehicle." (Id. ¶ 4.) According to Rosario, Rojas simply ignored his suggestions, conducting no investigation whatsoever:

That fact that no investigators were employed by defense Counsel in a murder case to check the area where the incident occurred to ascertain if anyone had seen the shooting or could corroborate the identification given by the only person who readily admitted seeing the shooting, Rafael Gonzalez and gave the police a description of the shooter as "Dark Skinned, 5' 5" tall and skinny" or if anyone had seen the shooting in question. If any of the occupants in the car that was being fired into had enemies who could have done the shooting instead of his client. In a case such as this it was very important to send investigators for the defense to the neighborhood because there were many people in the street on a spring evening who witness the shooting but would not have spoken to the police, yet would speak to an investigator for the defense, also the fact that his client and family have lived in the neighborhood where the incident took place for many years could have disclosed some information not privy to the police or prosecution. The description given by Rafael Gonzalez if corroborated could have created reasonable doubt for the jury. . . .

Trial counsel did not even interview the ambulance attendants or paramedics who were in the ambulance when Sean McCullough was transported to the hospital on the day of the incident; Where there was important testimony given by police officer Nicholas Gadaleta, that Sean McCullough had told him he had seen defendant do the shooting, however no police reports were produced to prove this transpired.

(Ex. H: Rosario § 440 Br. at 10-11.) In addition, Rosario alleged that

The car driven by the victims in this case was release[d] to the owner prior to trial, in total disregard to the defense as well as in violation of preservation of evidence rules. This evidence was important because had the defense independently tested the evidence the possibility exist that the test would have shown that the shooter was further tha[n] the witnesses in the car claim or that the shooter came from another position, thereby refuting the evidence put forth by the prosecution.

(Ex. H: Rosario § 440 Br. at 15.)⁵⁶

56 While Rosario alleged this "car release" claim separately (Rosario § 440 Br. at 14-15), it is really a subset of his claim that counsel failed to conduct a proper investigation (id. at 9-12).

Rosario's allegation of "unpreparedness in case law and procedures pertaining to a murder case" is far too vague to support a habeas claim. 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); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *19 (S.D.N.Y. May 8, 2002) (Peck, M.J.) (rejecting, as conclusory, allegations that counsel, inter alia, "failed to make appropriate objections and demonstrated ignorance of basic principles of criminal law and procedure"); 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); Vasquez v. United States, 96 Civ. 2104, 91 CR 153, 1997 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. . . .").

Moreover, as noted in the previous section (Point VI.C.1, above), the Court has read the entire Huntley and trial transcripts, which reveal that Rosario's counsel was well-prepared: he conducted an entirely adequate defense, ably cross-examining witnesses, moving for suppression of Rosario's confessions, excluding evidence of Rosario's prior convictions, objecting to prosecution testimony, and presenting a compelling summation. See, e.g., Cromwell v. Keane, 2002 WL 929536 at *20 (denying claim that counsel failed to prepare adequately, in light of court's review of counsel's adequate trial performance).⁵⁷ Once the judge declined to suppress Rosario's written and videotaped confessions, there was little counsel could do to avoid a conviction other than arguing, as he did, that the confessions were involuntary as a result of police coercion.

57 See also, e.g., Jeremiah v. Artuz, 181 F. Supp.2d 194, 203 (E.D.N.Y. 2002) (examining "counsel's overall performance" and finding no ineffective assistance where "[t]rial counsel ably presented petitioner's justification defense throughout the trial and attempted in cross-examination to develop grounds for questioning the testimony of prosecution witnesses that was harmful to petitioner's defense. Counsel also helped elicit petitioner's trial testimony in an intelligible fashion. His summation was an organized and coherent presentation of the defense position which focused on the justification defense. Notwithstanding the apparent strength of the prosecution's case, counsel forcefully urged the jury to find a reasonable doubt based on an evaluation of the evidence and gaps in the evidence. . . . [E]ven assuming that counsel committed an oversight or error in judgment . . . petitioner was not deprived of his right to the effective assistance of counsel. . . ."); Walker v. McGinnis, 99 Civ. 3490, 2000 WL 298916 at *7 (S.D.N.Y. Mar. 21, 2000) ("[A] thorough review of the trial transcript reveals that [petitioner]'s counsel was, in fact, competent, tenacious, and thorough throughout the proceeding."); Harris v. Hollins, 95 Civ. 4376, 1997 WL 633440 at *6 (S.D.N.Y. Oct. 14, 1997) ("Petitioner offers a laundry list of alleged errors made by defense counsel during trial, which he claims denied him his constitutional right to effective assistance of counsel. . . . Taken in its totality, petitioner's claim must fail because he has not demonstrated that counsel's conduct fell below that of a reasonable attorney, or that the jury would have found him not guilty but for counsel's ineffective performance. The record indicates that defense counsel aggressively pursued pretrial motions . . . cross-examined witnesses, made objections and motions, and gave a comprehensive summation that tied together defense strategies in an effort to discredit the State's case."); White v. Keane, 90 Civ. 1214, 1991 WL 102505 at *6 (S.D.N.Y. June 6, 1991), aff'd, 969 F.2d 1381 (2d Cir. 1992); Sanchez v. Kuhlman, 83 Civ. 4758, 1984 WL 795 at *4 (S.D.N.Y. Aug. 23, 1984) ("Careful review of the entire transcript demonstrates that petitioner's trial counsel was both zealous and competent.").

Rosario is somewhat more specific regarding counsel's alleged failure to investigate, as he asserts that counsel should have searched for witnesses at the site of the shooting, interviewed the ambulance driver, and inspected the car before it was released. See Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2066 (1984) ("[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."). Even if the Court accepted, arguendo, Rosario's allegation that counsel conducted no independent investigation, his claim should nevertheless be denied.⁵⁸ A petitioner may not merely allege that certain unidentified witnesses "might" have supplied relevant testimony, but must state exactly what testimony they would have supplied and how such testimony would have changed the result. See, e.g., Lawrence v. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) ("To affirmatively prove prejudice [from counsel's failure to investigate], a petitioner ordinarily must show not only that the testimony of uncalled witnesses would have been favorable, but also that those witnesses would have testified at trial. Moreover, if potential trial witnesses are not called to testify at a postconviction review hearing, the petitioner ordinarily should explain their absence and `demonstrate, with some precision, the content of the testimony they would have given at trial.'") (citations omitted); Lou v. Mantello, No. 98-CV-5542, 2001 WL 1152817 at *10 (E.D.N.Y. Sept. 25, 2001) ("Habeas claims based on `complaints of uncalled witnesses are not favored, because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have testified [to] are largely speculative.'") (citations omitted); Lamberti v. United States, 95 Civ. 1557, 1998 WL 118172 at *2 (S.D.N.Y. Mar. 13, 1998) (Leval, C.J.) ("The allegations of failure to investigate or to communicate are vague and conclusory. They do not identify counsel's asserted failings with any specificity or show how any different conduct might have changed the result."); Madarikan v. United States, No. 95 Civ. 2052, 1997 WL 597085 at *1 (E.D.N.Y. Sept. 24, 1997) (denying ineffective assistance claim based on failure to investigate or interview witnesses; petitioner's "allegations of ineffective assistance are conclusory, and give no indication as to what exculpatory evidence may have been revealed by an investigation"); Matura v. United States, 875 F. Supp. 235, 238 (S.D.N.Y. 1995) ("Petitioner has not stated why his counsel's investigation was inadequate, what his counsel should have investigated, what this investigation would have produced, or how the fruits of this investigation would have aided petitioner's case.").⁵⁹ Rosario does nothing but assert that an investigation might have revealed witnesses who might have supplied relevant testimony that might have been exculpatory. Such speculation satisfies neither Strickland's deficient performance nor prejudice prongs.

58 It is also quite possible that counsel consulted with Rosario, determined that Rosario was the shooter, and rather than search for non-existent exculpatory evidence, concentrated on suppressing the confessions. See Strickland v. Washington, 466 U.S. at 691, 104 S.Ct. at 2067 ("[W]hen the facts that support a certain potential line of defense are generally known to counsel because of what defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.").

59 See also, e.g., Polanco v. United States, 99 Civ. 5739, 94 Cr. 453, 2000 WL 1072303 at *10 (S.D.N.Y. Aug. 3, 2000) (denying claim of failure to investigate, because petitioner "does not say precisely what counsel would have learned or how counsel would have learned it"); 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); United States v. Vargas, 871 F. Supp. 623, 624 (S.D.N.Y. 1994) (Rejecting ineffective assistance claim based on failure to investigate, since "[t]here is no evidence that avenues suggested by the client which might have altered the outcome were ignored."); Gossett v. Henderson, 87 Civ. 5878, 1991 WL 135601 at *7 (S.D.N.Y. July 18, 1991) (denying claim of ineffective assistance for failure to investigate and develop an alibi defense based on entirely conclusory allegations which failed to show that any omission was prejudicial), aff'd, 978 F.2d 705 (2d Cir. 1992), cert. denied, 510 U.S. 997, 114 S.Ct. 564 (1993); Croney v. Scully, CV-86-4335, 1988 WL 69766 at *2 (E.D.N.Y. June 13, 1988) ("Petitioner's contention that assignment of an investigator would have been helpful to his defense is conclusory and speculative. Petitioner must show not only that the testimony would have been favorable, but also that the witness would have testified at trial."), aff'd, 880 F.2d 1318 (2d Cir. 1989).

3. Rosario's Claim that Counsel Erred by Failing to Request a Jury Charge Defining the Terms "Statement," "Confession," and "Admission" Should Be Denied

Rosario asserts that his counsel erred by failing to request a jury charge defining the terms "statement," "confession," and "admission." (Pet. ¶ 13(D), citing Ex. I: Rosario § 440 Addendum at 1-7.) Citing no relevant authority, Rosario baldly argues that failure to charge such definitions "actually relieved the prosecution of its duty to establish that guilt was proven beyond a reasonable doubt." (Id. at 3.)

Construed liberally, Rosario's claim may be that the trial court should not have characterized Rosario's confession as an "admission," but should rather have employed the more neutral term "statement." The commentary to New York Pattern Criminal Jury Instructions described the difference between these terms:

A "confession" is a direct acknowledgment of guilt made by the defendant in a criminal prosecution. An "admission" is a declaration by the defendant from which, either alone or with other evidence, his guilt may be inferred. A "statement" is a declaration by a defendant which is either a confession, an admission, an inculpatory statement which does not measure up to a confession or admission, or an exculpatory statement.

1 CJI (N.Y.) 11.00 at 608-09 (citations omitted); see People v. Bretagna, 298 N.Y. 323, 325-26, cert. denied, 336 U.S. 919, 69 S.Ct. 642 (1949); People v. Greenwaldt, 72 A.D.2d 836, 837, 421 N.Y.S.2d 679, 681 (3d Dep't 1979); People v. Kelly, 157 Misc.2d 554, 556-58, 598 N.Y.S.2d 423 (Sup.Ct. Bx. Co. 1992).⁶⁰ In order "to avoid the implication that the judge has evaluated the [defendant's] statement and determined it to be a confession in the sense the jury will understand that word," 1 L. Sand, J. Siffert, W. Loughlin, S. Reiss, Modern Federal Jury Instructions, Inst. 5-19 Cmt. at 5-51-52 (2000), both federal and New York pattern charges avoid the term "confession" and instead use the neutral term "statement." Id. at 5-51 ¶ 5.07; 1 CJI (N.Y.) 11.00 at 609 ("In the criminal jury instructions which follow, the term `statement' is used throughout."); People v. Pray, 99 A.D.2d 915, 916, 473 N.Y.S.2d 267, 269 (3d Dep't 1984) ("County Court took the prudent course in not characterizing the [alleged inculpatory] statements and permitting the jury to draw its own conclusions as to the effect of the recorded statement."). Indeed, it is reversible error for a charge to describe a defendant's statement as a "confession" when it was merely a "statement" or "admission," see People v. Greenwaldt, 72 A.D.2d at 837-38, 421 N.Y.S.2d at 681; see also People v. Bretagna, 298 N.Y. at 326, or to describe a neutral statement as an "admission of guilt," United States v. Grunberger, 431 F.2d 1062, 1069 (2d Cir. 1970).

60 Rosario could prevail if he proved that counsel's performance was objectively unreasonable in failing to object to a charge that was erroneous under federal or state law. See Sellan v. Kuhlman, 261 F.3d at 309-10 (petitioner may claim ineffective assistance of appellate counsel based on counsel's failure to raise state law claim on appeal); Mayo v. Henderson, 13 F.3d at 533-36 ("The claim whose omission forms the basis of an ineffective assistance claim may be either a federal-law or a state-law claim. . . ."); Claudio v. Scully, 982 F.2d at 803-05 n. 5 ("The federal constitutional right to effective assistance of counsel may be violated by an attorney's failure to raise a meritorious state law claim or defense."); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *12 (S.D.N.Y. May 25, 2000) (Peck, M.J.) (trial counsel was not ineffective for failing to object to Allen charge, because charge was correct under both federal and state law).

In this case, however, the trial court's charge entirely avoided characterizing Rosario's statements as a "confession":

There was, as you recall, evidence at the trial with regard to the four statements allegedly made by the defendant after his arrival at the precinct on May 1 of 1994. More specifically, there was evidence with respect to a statement allegedly made by the defendant to Detective Hodge which was allegedly reduced to a writing which was received into evidence as People's Exhibit 16. There was also testimony with respect to a second oral statement allegedly made to Detective Hayes later in the day. There was also testimony with respect to a third statement allegedly made to Detective Hodge which was allegedly reduced to a writing, which was received into evidence as People's Exhibit 18. And there was also a statement allegedly made by the defendant to the District Attorney in the precinct which was the subject of a videotape, which was received into evidence as People's Exhibit 19 in evidence.

As triers of the facts, you will be first called upon to determine on the basis of all the evidence, whether any of those statements were or were not made by the defendant. If you determine that a statement was indeed made by the defendant, then there are a number of pivotal and basic principles which must be applied before you may consider that statement for any purpose whatsoever. The Criminal Procedure Law of this state provides that a written or oral admission or other statement made by a defendant may not be used as evidence against him if the same was involuntarily made.

An admission or statement is involuntarily made by a defendant within the meaning of that statute, if it is obtained or extracted from the defendant, first, by any person or by the use of or threatened use of physical force upon the defendant; or by means of any improper conduct or undue pressure which impaired the defendant's physical or mental condition to the exten[t] of undermining his ability to make a choice as to whether or not to make a statement; or, two, by a public servant engaged in law-enforcement activity by means of any promise, or statement of fact which promise or statement creat[e]s a substantial risk that the defendant might falsely incriminate himself or in violation of such rights that the defendant may derive under the Constitution of the United States or of this State.

(Jury Charge: Tr. 922-24, emphasis added.) The charge thus carefully referred to Rosario's "statements"; when it used the term "admission or statement," it was only in the context of the C.P.L. involuntariness issue, and not a direct reference to what Rosario said.

Error only lies where a charge characterizes a neutral statement as an "admission of guilt," or characterizes a statement or admission as a "confession." See United States v. Grunberger, 431 F.2d at 1069; People v. Bretagna, 298 N.Y. at 326; People v. Greenwaldt, 72 A.D.2d at 837-38, 421 N.Y.S.2d at 681. Here, by contrast, Rosario's statements clearly qualified as a "confession," as they were Rosario's "direct acknowledgment of guilt," 1 CJI (N.Y.) 11.00 at 608-09, while the court's charge only referred to them as "statements." See People v. Velez, 220 A.D.2d 786, 786-87, 633 N.Y.S.2d 333, 334 (2d Dep't 1995) ("The defendant argues that reversal is warranted on the basis of the trial court's charge which characterized the defendant's statements, if believed, as a confession. . . . This case is unlike People v. Greenwaldt . . ., relied upon by the defendant, because in that case the defendant's statement to a police officer . . . did not clearly refer to the crime he was charged with committing. In this case, the defendant's statements clearly inculpated him for the crime of robbery."), appeal denied, 88 N.Y.2d 887, 645 N.Y.S.2d 462 (1996).

Because there was no basis for Rosario's counsel to object to the jury charge, counsel cannot be faulted for failure to make a meritless objection. 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. 1992) (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); 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").⁶¹

61 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); 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).

Finally, even if the Court were to assume arguendo that the charge was erroneous (which it was not), it could hardly have prejudiced Rosario, given the overwhelming proof of his guilt. See People v. Daniels, 77 A.D.2d 745, 746, 430 N.Y.S.2d 881, 883 (3d Dep't 1980) (characterization of defendant's statement as a "confession" not reversible error, in light of "overwhelming proof" of guilt). Rosario's ineffectiveness claim would therefore fail on Strickland's prejudice prong.

Rosario's ineffective assistance "definitions" claim should be denied.

4. Rosario's Claim that Counsel Improperly Failed to Object to the Imposition of Consecutive Sentences Should Be Denied

Rosario asserted in his C.P.L. § 440 Addendum that since the prosecution did not prove beyond a reasonable doubt that Rosario committed separate acts to justify the imposition of consecutive sentences on the murder and assault convictions, his trial counsel was ineffective for failing to object to consecutive sentences. (Ex. I: Rosario § 440 Addendum at 7-9.) It is not clear if Rosario was intending to raise this claim in his habeas petition (see page 21 n. 12 above), but even if he was, the claim is meritless.

New York Penal Law § 70.25(2) bars the imposition of consecutive sentences "on a person for two or more offenses committed through a single act or omission."⁶² Thus, if a shooter injures two victims with a single bullet, the two offenses are considered to be "committed through a single act." Penal Law § 70.25(2); see, e.g., People v. McFadden, 180 A.D.2d 825, 826-27, 580 N.Y.S.2d 406, 407 (2d Dep't) (concurrent, rather than consecutive, sentences imposed where single bullet caused injuries to two victims), appeal denied, 79 N.Y.2d 1004, 584 N.Y.S.2d 458 (1992); People v. Luster, 148 A.D.2d 305, 306, 538 N.Y.S.2d 273, 274 (1st Dep't) (same), appeal denied, 74 N.Y.2d 666, 543 N.Y.S.2d 409 (1989). If, however, the two victims were hit by separate bullets, consecutive sentences are appropriate under New York law, even if the shooter's intent was to hit only one of the victims. See People v. Brathwaite, 63 N.Y.2d 839, 843, 482 N.Y.S.2d 253, 256 (1984) (consecutive sentences upheld; "although the two deaths may be said to have occurred in the course of a single extended transaction — the robbery — it was separate `acts' which caused the deaths of the owner and the clerk (i.e., there is no contention that it was the firing of the same shot that killed both the owner and the clerk), and neither was a material element of the other.").⁶³

62 Penal Law § 70.25(2) provides:

When more than one sentence of imprisonment is imposed on a person for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently.

63 Accord, e.g., Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *12-13 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.) (where facts showed that petitioner shot two victims with separate bullets, and not a "single bullet," petitioner could be sentenced consecutively under New York law for the two injuries); People v. Rivera, 262 A.D.2d 31, 31, 692 N.Y.S.2d 313, 313 (1st Dep't) ("A review of the trial evidence, including evidence of the firing of five to six shots, each of which constituted a separate act . . ., as well as the circumstances surrounding the shooting of the two individuals, establishes that there was a sufficient factual basis for the court to conclude that the victims were wounded by different bullets, thereby supporting the imposition of consecutive sentences in connection with the assault convictions. . . ."), appeal denied, 93 N.Y.2d 1013, 1025, 697 N.Y.S.2d 572, 584 (1999); People v. Saulters, 255 A.D.2d 896, 896, 682 N.Y.S.2d 740, 741 (4th Dep't) ("Because defendant fired several shots into the car and because there is no proof and no contention by defendant that the same shot injured both complainants we conclude that defendant was properly sentenced to consecutive sentences . . ."), appeal denied, 92 N.Y.2d 1038, 684 N.Y.S.2d 503 (1998); People v. Reyes, 239 A.D.2d 524, 525, 658 N.Y.S.2d 353, 354 (2d Dep't) ("The defendant's accomplices fired several gunshots, killing George Poulopoulos and injuring Jesus Jiminez and Fernando Jiminez. The sentencing court did not improvidently exercise its discretion in imposing consecutive sentences on the convictions for assault in the first degree and murder in the second degree, as each firing of the gun constituted a separate act (see, Penal Law § 70.25[2] . . .) However, . . . the sentencing court erred in ordering the defendant's sentence for criminal possession of a weapon in the second degree to run consecutively to his sentences on the convictions for assault in the first degree and murder in the second degree, since these convictions arose out of a single incident."), appeal denied, 90 N.Y.2d 909, 663 N.Y.S.2d 521 (1997); People v. Sumpter, 203 A.D.2d 605, 605, 610 N.Y.S.2d 614, 614 (2d Dep't) ("The defendant fired two gunshots, with each bullet killing a separate victim. Although the shots were fired in rapid succession, and were part of the same transaction, the court did not improvidently exercise its discretion in imposing consecutive sentences since the defendant committed separate acts neither of which was a material element of the other."), appeal denied, 84 N.Y.2d 833, 617 N.Y.S.2d 153 (1994).

Here, Rosario was sentenced to fifteen years to life for murdering the driver of the car, Winkfield, and 3-1/3 to ten years for assault for shooting the passenger of the car, McCullough, the two sentences to be served consecutively. (S. 25-26; see Tr. 928-41.)⁶⁴ Based on the trial testimony, Rosario approached the car from the driver's side and then sprayed the inside of the car with bullets through the driver's side window, killing the driver, Winkfield, and wounding the front-seat passenger, McCullough. (See pages 9, 11-13 above.) The medical examiner testified that Winkfield was killed by two bullets to the head, and that both bullets were extracted from Winkfield's head, which showed no exit wounds. (Smiddy: Tr. 648-52.)

64 He was also sentenced to two to six years for criminal possession of a weapon in the second degree, to be served concurrently with the other two sentences. (S. 26.)

Accordingly, since there was no evidence that a single bullet could have killed Winkfield, exited his head, and injured McCullough, the jury reasonably could have concluded that Winkfield's murder and McCullough's assault were caused by separate bullets, i.e., separate "acts" under Penal Law § 70.25(2), and the trial court could properly order the murder and assault sentences to run consecutively. Because an attorney's failure to proffer a meritless objection cannot support a claim of ineffective counsel, Rosario's claim should be dismissed. See, e.g., Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *14 n. 25 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.) (failure to make meritless objection cannot support ineffective counsel claim, citing cases); see also cases cited at page 79 n. 61 above.

CONCLUSION

For the reasons set forth above, Rosario's habeas corpus petition should be DENIED and a certificate of appealability should not issue (except as to the AEDPA mailbox rule issue).