269 F.3d 78 (2nd Cir. 2001), 00-2350, Aparicio v Artuz

Docket Nº:00-2350
Citation:269 F.3d 78
Party Name:DAVID APARICIO, Petitioner-Appellant-Cross-Appellee, v. CHRISTOPHER ARTUZ, Superintendent, Green Haven Corr. Facility, Respondent-Appellee-Cross-Appellant.
Case Date:October 05, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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269 F.3d 78 (2nd Cir. 2001)

DAVID APARICIO, Petitioner-Appellant-Cross-Appellee,


CHRISTOPHER ARTUZ, Superintendent, Green Haven Corr. Facility, Respondent-Appellee-Cross-Appellant.

No. 00-2350

United States Court of Appeals, Second Circuit

October 5, 2001

June 7, 2001, Argued


Amended October 30, 2001.

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DONNA R. NEWMAN, New York, NY, for Petitioner-Appellant-Cross-Appellee.

PHYLLIS MINTZ, District Attorney's Office Kings County, Brooklyn, NY, (Leonard Joblove, on the brief) for Respondent-Appellee-Cross-Appellant.

Before: McLAUGHLIN, CABRANES, Circuit Judges, and COTE, District Judge.[*]

McLAUGHLIN, Circuit Judge:


This case arises out of a short-lived crime spree on the morning of January 29, 1991. Around daybreak, Carlos Medina was riding the subway through Brooklyn, when another passenger tried to rob him at gunpoint. A New York City Transit Police officer happened upon the crime in progress and attempted to intervene; the gunman fired four shots, hitting the police officer twice. At the next stop, the gunman fled the subway.

Immediately thereafter, near the same subway station, car service driver David Ramos was warming up his vehicle when he was held up at gunpoint and his car was hijacked. Ramos rushed to the car service's office to tell his dispatcher and both men chased the carjacker in the dispatcher's vehicle. They located the carjacker

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just a few blocks away, marooned in New York City morning traffic. When they finally pulled alongside the stolen vehicle, the carjacker pointed a gun at them, jumped out of the car and ran toward a nearby house. About two hours later, the police found Petitioner David Aparicio cowering under a stairway in the backyard of a house a few blocks away. No gun was recovered.

At the request of the police, Ramos then came to the scene and identified a handcuffed Aparicio as the person who stole his car. Later that day, Medina and another witness picked Aparicio out of a lineup, identifying him as the perpetrator of the subway robbery and the shooting.

The State Proceeding

Aparicio was charged with attempted murder in the first degree and assault in the first degree in connection with the shooting of the police officer; attempted robbery in the first degree of the subway passenger; robbery in the first degree (based on the car theft); and criminal possession of a weapon in the second or, alternatively, third degree.

At his trial, Aparicio did not call any witnesses or present other evidence on his behalf. Rather, he asserted a misidentification defense, arguing that the police had arrested and the witnesses had identified the wrong person.

In its charge, the court instructed:

Before a person may be convicted of a crime by a verdict of a jury the evidence must establish to the jury's satisfaction, beyond a reasonable doubt, each and every element of the crime and that the defendant on trial is the person who committed the crime.

The court then charged the jury on the elements of each of the offenses, repeatedly reminding the jury that the State was required to prove that the defendant was the person who committed each element. At the conclusion of the jury charge, Aparicio's counsel did not object to any aspect of the charge or request any further instructions.

Aparicio was convicted of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4), and criminal possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03(2). He was acquitted of the attempted murder charge, and the jury failed to reach a verdict on assault or attempted robbery charges. Adjudicated a persistent felony offender, Aparicio was sentenced to a term of twenty-five years to life imprisonment for the first degree robbery offense and a concurrent term of eight years to life imprisonment on the weapons possession count.

On direct appeal to the Appellate Division, Aparicio raised a number of issues, including a contention that, in a trial where identification was the core issue, the court's failure to deliver a thorough eyewitness identification charge deprived him of a fair trial. The Appellate Division affirmed the convictions, ruling that Petitioner's claim concerning the identification instruction was unpreserved for appellate review, and, even if it were preserved, was meritless because the jury charge was adequate in this respect. People v. Aparicio, 208 A.D.2d 638, 618 N.Y.S.2d 246 (2d Dep't 1994). Petitioner's petition to appeal to the New York Court of Appeals was denied in December 1994. People v. Aparicio, 84 N.Y.2d 1009, 622 N.Y.S.2d 920, 647 N.E.2d 126 (1994).

The Federal Proceeding

In April 1997, Aparicio filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York (Weinstein, J.), raising the same claims he previously presented to the Appellate Division. In November 1998, Petitioner filed a supplemental

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habeas brief (this time with the assistance of counsel) claiming that he was denied effective assistance of trial counsel when his lawyer failed to request a specific eyewitness identification charge or object to the trial court's failure to deliver one. Petitioner also contended that his appellate counsel was equally ineffective for failing to raise the ineffectiveness of his trial counsel.

Because the ineffective assistance claims had never been raised in state court, the district court stayed the habeas petition (rather than dismissing it under Rose v. Lundy, 455 U.S. 509, 510, 71 L.Ed. 2d 379, 102 S.Ct. 1198 (1982), for containing unexhausted claims) pending state court review of those claims. In May 1999, Petitioner returned to state court, filing a pro se motion for a writ of error coram nobis from the Appellate Division. There he raised for the first time in state court the ineffectiveness of both his trial and appellate counsel with regard to the identification instruction.1 The following September, Petitioner amended his coram nobis petition to add a claim that his appellate counsel was ineffective for failing to raise a claim that his convictions for first-degree robbery and second-degree criminal weapons possession violated the Double Jeopardy Clause of the Fifth Amendment.2 His argument was that his indictment was multiplicitous because, when both convictions arose out of the same nucleus of facts, the weapons possession charge was a lesser included offense of the robbery count. The Appellate Division denied coram nobis relief that October, stating only, "appellant has failed to establish that he was denied the effective assistance of appellate counsel." People v. Aparicio, 265 A.D.2d 335, 696 N.Y.S.2d 697 (2d Dep't 1999). Notably, the Appellate Division did not mention Petitioner's claim of ineffective assistance of trial counsel with regard to the eyewitness identification charge.

Having concluded that he had now exhausted his state remedies, Aparicio resuscitated his federal habeas petition in the

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district court. The amended habeas petition yoked together four claims: (1) ineffective assistance of trial counsel for failing to request the eyewitness identification instruction; (2) ineffective assistance of appellate counsel for failing to raise claim (1) on direct appeal; (3) ineffective assistance of trial counsel for failing to object to the indictment on double jeopardy grounds; and (4) ineffective assistance of appellate counsel for failing to raise claim (3) on direct appeal.

The last two double jeopardy claims (3 & 4) were not exactly the same claims that Aparicio had presented to the Appellate Division in the state coram nobis proceeding. In the amendment to his coram nobis petition, Petitioner argued only that appellate counsel was ineffective for failing to raise double jeopardy on direct appeal. He did not attack trial counsel.3 Thus, the third claim had never been raised in state court, and the fourth claim mischaracterized the argument that was actually presented. Nevertheless, the State did not raise any objection to the presentation of the double jeopardy claims. The district court thus addressed the merits of all four claims, granting the petition in part, and denying it in part. Aparicio v. Artuz, No. CV-97-2183(JBW), 2000 WL 713744 (E.D.N.Y. May 25, 2000).

The district court granted the petition on the double jeopardy claim, finding that criminal weapons possession in the second degree was a lesser included offense of robbery in the first degree and that the jury's verdict left open the possibility that both offenses had their genesis in the same factual nucleus--the robbery of the car service driver. Id. at *3-5. Conceding that the requirement that the weapon be both loaded and operable was an element of the weapon possession offense but was not an element of the robbery offense, the district court, nevertheless, found a violation of the Double Jeopardy Clause. Under New York law, it is an affirmative defense to first degree robbery that the firearm was not loaded or operable. Id. at *3; N.Y. Penal Law § 160.15(4). Therefore, the district court concluded that Petitioner's trial counsel was, "at the very least, . . . constitutionally ineffective . . . not to request that the court clearly instruct the jury as to which time frame the weapons possession count involved." Id. at *5. Furthermore, the district court deemed appellate counsel to be ineffective for failing to raise the ineffectiveness of Petitioner's trial counsel on direct appeal. Id. at *5.

As to the eyewitness identification instruction, the district court denied the habeas petition, concluding that there was no error in the...

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