Otero v. Stinson

• Decision Date: 27 April 1999
• Docket Number: No. 97 Civ.2794(HB)(AJP).,97 Civ.2794(HB)(AJP).
• Citation: 51 F.Supp.2d 415
• Parties: Richard OTERO, Petitioner, v. James STINSON, Superintendent, Great Meadow Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

51 F.Supp.2d 415

Richard OTERO, Petitioner, v. James STINSON, Superintendent, Great Meadow Correctional Facility, Respondent.

No. 97 Civ.2794(HB)(AJP).

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

April 27, 1999.

Richard Otero, Stormville, NY, pro se.

Alan Gadlin, Asst. District Attorney, New York City, for Respondent.

ORDER

BAER, District Judge.

I referred this habeas corpus petition to Magistrate Judge Peck on October 28, 1998. On March 19, 1999, Judge Peck issued a Report and Recommendation which recommended that petitioner's request for habeas relief be dismissed without prejudice as a mixed petition.

The Report and Recommendation advised the parties of their obligation to file timely objections under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), 6(a) 6(e). On April 2, 1999, I granted the petitioner's request to extend until June 1, 1999 the date by which he must file his objections, if any. By letter dated April 16, 1999, however, the petitioner indicated to the Court his decision not to file any objections.¹

I have found no clear error in the Report and Recommendation. Therefore, I adopt the Report and Recommendation in all respects and direct the Clerk of the Court to close this case.

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

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

Petitioner Richard Otero seeks a writ of habeas corpus alleging four grounds for relief: (1) violation of his Fifth Amendment privilege against self-incrimination when he was cross-examined at trial about his failure to inform the police of his trial explanation, and the trial court's instructions to the jury did not cure the error (Am.Pet. ¶ 12(A)); (2) marshaling only evidence helpful to the prosecution about the show-up identification of Otero (Am.Pet. ¶ 12(B)); (3) ineffective assistance of trial counsel (Am.Pet. ¶ 12(C)); and (4) ineffective assistance of appellate counsel (Am. Pet. ¶ 12(C)).

For the reasons set forth below, because Otero has failed to exhaust his ineffective assistance of trial counsel claim, I recommend that Otero's habeas petition be dismissed without prejudice as a mixed petition.

PROCEDURAL BACKGROUND

On March 24, 1993, petitioner Otero was convicted, after a jury trial, in Supreme Court, New York County, of two counts of attempted murder in the first degree, three counts of attempted murder in the second degree, robbery, weapons possession and related counts. (Am.Pet. ¶¶ 1-4.) Otero was sentenced to 20 years to life and a concurrent five to ten-year sentence. (Am.Pet. ¶ 3; see also Answer ¶ 2 & n. *.)

Otero's Direct Appeal

Otero's direct appeal to the First Department raised the following issues: (1) improper cross-examination of Otero and a defense witness (Ex. A:¹ Otero 1st Dep't Br. at 26-35); (2) erroneous jury instruction about the identification of Otero in a show-up (id. at 35-38); (3) the second degree attempted murder convictions were redundant of the first degree attempted murder convictions (id. at 39); and (4) adoption of applicable arguments made by co-defendant Carlos Rivera.² (Ex. A: Otero's 1st Dep't Br. at 2, 3.) The First Department vacated the second degree attempted murder convictions and otherwise affirmed. People v. Otero, 225 A.D.2d 489, 489-90, 639 N.Y.S.2d 819, 820-21 (1st Dept. 1996). The Court of Appeals denied leave to appeal. People v. Otero, 88 N.Y.2d 968, 647 N.Y.S.2d 722, 670 N.E.2d 1354 (1996).

Otero's First Federal Habeas Petition

Otero's original habeas petition, dated March 24, 1997 and received by the Court's Pro Se Office on April 4, 1997 (Pet. at pp. 2, 7), raised two claims: Otero's Fifth Amendment privilege claim (Pet. ¶ 12(A)), and erroneous show-up jury charge (Pet. ¶ 12(B)). By letter dated October 24, 1997, Otero requested that he be allowed to withdraw his habeas corpus petition in order to raise a claim of ineffective assistance of appellate counsel in state court. (10/24/97 Otero letter; see also Answer ¶ 7.) By order dated December 3, 1997, Magistrate Judge Bernikow advised Otero that if he withdrew his petition, a later petition might be time barred, but granted Otero's application to withdraw his petition unless Otero informed the Court by December 26, 1997 that he did not wish to withdraw his petition. (See Dkt. No. 8: Bernikow 12/3/97 Order; see also Answer ¶ 7.) Otero responded that rather than withdraw his petition, he be allowed to amend it to include an ineffective assistance of appellate counsel claim. (12/9/97 & 12/31/97 Otero Letters.) By Order dated July 10, 1998, Judge Bernikow denied Otero's request on the ground that such an amended petition would be subject to dismissal as a mixed petition since the ineffective assistance of appellate counsel claim was unexhausted. (Dkt. No. 11: Bernikow 7/10/98 Order.) However, Judge Bernikow allowed Otero to file an amended petition "despite the potential consequences," if he notified the Court by July 31, 1998. (Id.; see also Answer ¶ 7.)

Otero's Coram Nobis Application to the First Department

Meanwhile, in October 1997, Otero filed a motion for a writ of error coram nobis in the First Department raising his ineffective assistance of appellate counsel claim. (Answer Ex. A: Otero 10/30/97 Coram Nobis Aff. ¶¶ 4(A) & 18-29.) Otero's coram nobis application also appears to have requested relief pursuant to N.Y. CPL § 440.10, claiming that his trial attorney was ineffective based on his failure to adequately investigate the facts surrounding his case (id. ¶ 1(C) & 8-13), although Otero also claimed appellate counsel was ineffective for failing to raise trial counsel's ineffectiveness (id. ¶¶ 19, 21, 23, 25, 27, 29). In opposing Otero's coram nobis application, the State noted that "[i]f defendant thereby means now to challenge trial counsel's performance directly, his application must be rejected, for he can only make a motion to vacate judgment in the trial court." (Answer Ex. B: State 12/97 Coram Nobis Opp.Br. at 14 n. *, citing CPL § 440.10(1).) On March 26, 1998, the First Department denied Otero's coram nobis application "in its entirety," citing People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dept. 1987). (Answer Ex. D: 3/26/98 1st Dep't Order.) People v. Otero, 248 A.D.2d 1033, 671 N.Y.S.2d 575 (1st Dept. 1998) (table). The De La Hoz decision cited by the First Department dealt only with ineffective assistance of appellate counsel.

Otero's Current Amended Habeas Petition

Otero's current amended federal habeas petition is dated April 30, 1998 and was received by the Court's Pro Se Office on May 6, 1998. (Am.Pet. at pp. 2, 7.) Otero's amended petition raised the claims in the original habeas petition (Am.Pet. ¶¶ 12(A)-(B)), and added claims of ineffective assistance of trial and appellate counsel (Am. Pet. ¶ 12(C)).

ANALYSIS

I. OTERO'S CURRENT HABEAS PETITION SHOULD BE DISMISSED WITHOUT PREJUDICE AS A "MIXED" PETITION BECAUSE HIS INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIM IS UNEXHAUSTED

A. Otero Failed to Raise His Ineffective Assistance of Trial Counsel Claim Through a CPL § 440.10 Collateral Attack in the Trial Court

Otero did not exhaust his ineffective assistance of trial counsel claim in state court. In his petition, Otero alleges that his trial counsel was ineffective because of his attorney's failure "to adequately investigate the facts," "research the law" and submit proper lesser included offense charges. (Am.Pet. ¶ 12(C)(i)-(viii).) 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, 382 N.E.2d 1149 (1978); see also, 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"); Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334, at *4 (S.D.N.Y. Oct.7, 1998); Walker v. Miller, 959 F.Supp. 638, 643-44 (S.D.N.Y.1997) (McKenna, D.J. & Peck, M.J.) (finding that state court remedies were not exhausted where § 440.10 motion did not advance all of the ineffective assistance of trial counsel allegations raised in habeas petitions); Ehinger v. Miller, 928 F.Supp. 291, 294 (S.D.N.Y. 1996) (Mukasey, D.J. & Peck, M.J.) (A "coram nobis motion to the Appellate Division addresses errors at the appellate level, including ineffectiveness of appellate counsel, not trial errors.... Ineffective assistance of trial counsel motions, on the other hand, ordinarily are made by a CPL § 440.10 motion before the trial court, or direct appeal where trial counsel's alleged incompetence could be determined from the existing record."); Mercado v. Senkowski, 736 F.Supp. 28, 29 (E.D.N.Y.1990); Walker v. Dalsheim, 669 F.Supp. 68, 70 (S.D.N.Y.1987) ("The proper procedural vehicle under New York law for raising a claim of ineffective assistance of trial counsel is generally not a direct appeal but a motion to the trial court to vacate the judgment under New York Criminal Procedure Law Section 440.10. This is so because normally the appellate court has no basis upon which it would be able to consider the substance of such a claim until a record of the relevant facts has been made at the trial court level."); United States ex rel. LaSalle v. Smith, 632 F.Supp. 602, 603 (E.D.N.Y.1986); People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 55, 525 N.E.2d 698 (1988); People v. Love, 57 N.Y.2d 998, 1000, 457 N.Y.S.2d 238, 239, 443 N.E.2d 486 (1982); People v. Brown, 28 N.Y.2d 282, 286-87, 321 N.Y.S.2d...