Aramas v. Donnelly

Full title: LUIS ARAMAS, aka LUIS ARAMIS, aka LUIS ARENAS, Plaintiff, v. EDWARD R…

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

Date published: Oct 15, 2002

99 Civ. 11306 (JSR) (AJP) (S.D.N.Y. Oct. 15, 2002)

Opinion

99 Civ. 11306 (JSR) (AJP)

October 15, 2002

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge

To the Honorable Jed S. Rakoff, United States District Judge:

Luis Aramas, pro se, petitions for a writ of habeas corpus from his March 8, 1989 conviction in Supreme Court, Bronx County, for six counts of second degree murder (and other counts) and sentence to three consecutive sentences of twenty-five years to life imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-4; Dkt. No. 11: 3/9/00 Affidavit of Asst. District Atty. Raffaelina Gianfrancesco, ¶ 6.) On June 27, 2000, the Court dismissed Aramas' initial habeas petition, holding that the First Department's decision that Aramas waived his Confrontation Clause claims when his counsel failed to object at trial or to request a severance constituted an adequate and independent state law ground. Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (S.D.N.Y. Apr. 13, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 827708 (S.D.N.Y. June 27, 2000) (Rakoff, D.J.). Aramas's current, amended petition alleges that his trial counsel was ineffective, which also constitutes cause for the procedural default on his Confrontation Clause claims. (Dkt. No. 29: Am. Pet. at 9.) Aramas claims that his trial counsel rendered ineffective assistance by (1) failing to move for a severance of his trial from that of his co-defendant; and (2) failing to object to or request redaction of an inmate's trial testimony about the co-defendant's confession referring to his "friend's" involvement in the crime. (Id.; Dkt. No. 31: 8/12/02 Aramas Reply Br. at 1.)

For the reasons discussed below, Aramas' petition should be denied.

FACTS

The Trial Evidence

On February 17, 1987, Aramas was arrested and charged, along with co-defendant Charles Sanders, with intentional and felony murder (and related lesser counts) stemming from three shooting deaths during the attempted robbery of a drug seller in his apartment. (Dkt. No. 11: Gianfrancesco 3/9/00 Aff Ex. 1: Aramas 1st Dep't Br. at 2-3.)¹

1 The State has been unable to locate the trial transcript. (See Gianfrancesco 3/9/00 Aff. ¶ 4.) Accordingly, the Court mostly takes the facts from Aramas' brief to the First Department, prepared for Aramas by the Legal Aid Society.

Jose Matil, Sanders' cousin, testified at trial that on February 13, 1987, Sanders and Aramas asked Matil if anyone in his building sold cocaine. (Aramas 1st Dep't Br. at 3.) Matil testified that the three of them then went to the sixth floor apartment of Juan Batiste. (Id.) According to Matil's trial testimony, Aramas and Sanders pulled out guns, told Matil not to look, and shot Batiste, Batiste's wife, and a third person. (Id. at 4-5.) Seven months later, Matil identified Aramas in a lineup. (Id. at 5-6.) When asked by defense counsel whether he had sold the murder weapon to Aramas after the shooting, Matil denied doing so. (Id. at 18.) On summation, Aramas' counsel spent a considerable amount of time trying to explain Aramas' possession of one of the murder weapons, contending that Aramas was not present during the shooting and was guilty of nothing more than "stupidly" buying the gun from Matil. (See State 1st Dep't Br. at 18.)

Grisel Fuentes, a neighbor of the Batistes, testified that she saw Aramas, Sanders, and Matil in Batiste's apartment, heard gunshots, and saw Aramas and Sanders flee the apartment, with Aramas holding a gun. (Aramas 1st Dep't Br. at 8-9.) At trial, she identified Aramas and Sanders. (Id. at 5-6, 8.)

On February 17, 1987, the police separately arrested Sanders and Aramas. (Id. at 12.) When arrested, Aramas was carrying a gun that balistics proved shot Batiste's wife and others in the apartment. (Id. at 13.)

Anthony Skelton testified that he met Sanders in Rikers Island in May 1997 and had a conversation about "an incident." (Id. at 14.) "Immediately prior to the [trial] testimony of Anthony Skelton, [Aramas'] counsel made an application to the court, stating, "I would ask your Honor to instruct the jury that whatever this witness says in no way is binding upon my client and cannot be used against him in any way.' The court responded, 'Let me hear what he says first and then I will rule on your application.'" (Id. at 13, record citations omitted.) Aramas' "counsel requested the court to instruct the jury that the testimony was being offered only against Sanders and could not be used against [Aramas]. The court then instructed the jury, "[w]hat this witness is about to say concerning the conversation with the defendant Sanders is binding on the defendant [Sanders] only and is not to be taken as any evidence against the defendant Aramas.'" (Id. at 14-15.) "Counsel did not request that the statement, prior to its admission to the jury, be redacted to exclude reference to [Aramas]; nor did counsel request that [Aramas'] trial be severed from that of his co-defendant." (Id. at 15.)

Skelton then testified about Sanders' statement to him as follows:

He said we — . . . we went to go stick up a drug spot in the Bronx, him, his cousin and his — and the next guy, his friend and when they went up there him and the next guy decide to take off a lady, two or three mens, you know, over drugs. Got the drugs and money. You know, he never said, like, himself . . . He said — he said, we shot the people. He never said myself. You know, he said, we.

(Gianfrancesco 3/9/00 Aff. Ex. 2: State 1st Dep't Br. at 15, quoting Skelton's trial testimony, emphasis added; see also Aramas 1st Dep't Br. at 15.) Skelton also testified that "Sanders told Skelton that he had been arrested on a murder charge and that his friend, who had not been arrested with him, later 'got busted with a gun.'" (Aramas 1st Dep't Br. at 15.) Aramas' counsel did not ask Skelton any questions. (Aramas 1st Dep't Br. at 16.)

During the jury charge, the trial judge instructed the jury

not to consider the testimony of the witness Anthony Skelton, who testified to the alleged admissions made to him by the defendant Sanders, as any evidence against [Aramas]. Such testimony is not to be considered by you in determining the guilt or nonguilt [sic] of [Aramas] but may only be considered by you in determining the guilt or nonguilt [sic] of the defendant Sanders.

(State 1st Dep't Br. at 16, quoting jury instruction; see also Aramas 1st Dep't Br. at 19.) Aramas' trial counsel did not object to this charge. (State 1st Dep't Br. at 16.)

Aramas and Sanders were found not guilty of the intentional murder counts and guilty of felony murder counts for each of the three deceaseds, and lesser charges. Both defendants were sentenced to three consecutive twenty-five years to life sentences, for aggregate sentences of seventy-five years to life. (Aramas 1st Dept Br. at 19-20.)

Aramas' Direct Appeal

On direct appeal, represented by Legal Aid, Aramas argued that the admission of Skelton's testimony as to Sanders' confession violated Aramas' Confrontation Clause rights in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968). (Dkt. No. 11: Gianfrancesco 3/9/00 Aff. Ex. 1: Aramas 1st Dep't Br. at 20-28.) Mamas also argued that he received ineffective assistance of trial counsel "for failing to seek redaction of the references to [Aramas] or to seek to sever [Aramas'] trial from that of his codefendant." (Id. at 28; see also id. at 29-31.)

The State opposed, arguing that the "Bruton claim was unpreserved and waived because [Aramas] acquiesced in joinder with his co-defendant's indictment, failed to object to the statements which were admitted against his co-defendant, and specifically asked the court to give the jury limiting instructions regarding this statement." (Gianfrancesco 3/9/00 Aff. ¶ 8; see also id. Ex. 2: State 1st Dep't Br. at 15-17.) The State also argued that counsel's decision to allow Skelton's testimony was strategic, as part of counsel's strategy to shift blame from Aramas (who was arrested in possession of one of the murder weapons) to Sanders. (Id. at 17-21.)

On May 19, 1998, the First Department affirmed Aramas' conviction.People v. Aramas, 250 A.D.2d 478, 672 N.Y.S.2d 702 (1st Dep't 1998). The First Department held:

By consenting to the joinder of defendant's and the co-defendant's indictment, by failing to request severance and by explicitly requesting a limiting instruction when the court admitted the statement of the non-testifying co-defendant, defendant has waived his present claim that he was denied the right of confrontation. In any event, given the overwhelming evidence of guilt, the Bruton error was harmless beyond a reasonable doubt.

Review of defendant's claim of ineffective assistance of counsel would require a further record to be developed by way of an appropriate motion pursuant to CPL 440.10. Based on the existing record, we find defendant was afforded the effective assistance of counsel.

Id. at 478, 672 N.Y.S.2d at 702 (citations omitted).

The New York Court of Appeals denied leave to appeal on September 29, 1998. People v. Aramas, 92 N.Y.2d 922, 680 N.Y.S.2d 463 (1998).

Aramas' Initial Federal Habeas Corpus Petition and Prior Proceedings Herein

Aramas' initial timely-filed² federal habeas corpus petition raised a single claim — that Aramas' Confrontation Clause rights were violated by the admission of inmate Skelton's testimony concerning co-defendant Sanders' confession implicating Aramas. (Dkt. No. 2: Pet. ¶ 12(A).)

2 The State did not challenge the timeliness of Aramas' habeas petition. (See generally Dkt. No. 11: Gianfrancesco 3/9/00 Aff. State Br.)

By letter application dated January 18, 2000, Aramas sought to have the Court hold his petition in abeyance to enable him to return to state court to bring a C.P.L. § 440.10 motion to exhaust his ineffective assistance of counsel claim. (See Dkt. No. 6.) By Opinion and Order dated February 3, 2000, this Court denied Aramas' request, and gave Aramas the choice of dismissing his petition without prejudice to allow him to exhaust the ineffective assistance claim, or having the Court consider only the Confrontation Clause claim. Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 124994 at *1-2 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.). By letter dated February 11, 2000, Aramas wrote that "[u]pon receipt of your [Opinion] dated and ordered February 3, 2000, and upon further reflection, I would agree with you and would like to withdraw the claim of ineffective assistance of counsel." (Dkt. No. 10: 2/11/00 Aramas Letter at 1.) By Order dated February 18, 2000, the Court dismissed without prejudice Aramas' ineffective assistance of counsel claim. (Dkt. No. 9: 2/18/00 Order.)

The Court found that Aramas' Confrontation Clause claim was barred from federal habeas review because the First Department's decision — that Aramas' Confrontation Clause claim was waived because of his counsel's failure to object at trial or to have requested a severance — was based on an adequate and independent state law ground. Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *3-4 (S.D.N.Y. Apr. 13, 2000) (Peck, M.J), report rec. adopted, 2000 WL 827708 (S.D.N.Y. June 27, 2000) (Rakoff, D.J.). The Court noted that because Aramas had not exhausted his ineffective assistance claim in state court, it could not be used to establish "cause" for a procedural default. Aramas v. Donnelly, 2000 WL 559548 at *4 n. 5.

Aramas appealed to the Second Circuit. (Dkt. No. 17: 7/19/02 Notice of Appeal.) On November 15, 2001, the Second Circuit ordered the judgment vacated and the petition remanded and treated as if the petition had been stayed pending exhaustion of the ineffective assistance claim in state court. (Dkt. No. 19: 2d Cir. Mandate.)

Aramas' C.P.L. § 400.10 Motion

Aramas filed a C.P.L. § 440.10(h) motion in Bronx County Supreme Court on December 20, 2001. (Dkt. No. 30: Gianfrancesco 7/12/02 Aff. ¶ 8 Ex. 1: Aramas 12/20/01 § 440 Motion Papers.) Aramas claimed that he was denied effective assistance of counsel because his trial counsel "at no time sought redaction of the statement regarding the references to defendant [Aramas] and did not move to sever the trials." (Dkt. No. 30: Gianfrancesco 7/12/02 Aff. Ex. 1: Aramas § 440 Br. at 13).

On January 15, 2002, the Supreme Court denied Aramas' § 440 motion, stating, in full, that "[t]he ineffective assistance issue raised here is a matter which entirely involves the record and therefore could be or should have been raised on appeal." (Gianfrancesco 7/12/02 Aff. Ex. 2: 1/15/02 Decision.) On April 9, 2002, the First Department denied Aramas permission to appeal the denial of the § 440 motion. (Gianfrancesco 7/12/02 Aff. Ex. 3: 4/9/02 Certificate Denying Leave).³ Aramas' Amended Federal Habeas Corpus Petition

3 The First Department stated that "there is no question of law or fact presented which ought to be reviewed by the Appellate Division, First Judicial Department, and permission to appeal from the Order of the Supreme Court, Bronx County, entered on or about January 15, 2002, is hereby denied." (Id.)

On June 11, 2002, Aramas filed his amended federal habeas petition. (Dkt. No. 29: Am. Pet.). Aramas' amended petition asserts that his trial counsel rendered ineffective assistance, which resulted in both a Bruton error in violation of his Confrontation Clause rights and waiver of his claims for Confrontation Clause violations.⁴ (Am. Pet. at 9.) Aramas alleges that a Bruton error arose because his trial was joined with his co-defendant, testimony was admitted about this codefendant's confession that implicated Aramas, and counsel failed to protect his Confrontation Clause rights under the Sixth Amendment under any of three available remedies: (1) "separate trials could have been ordered" under C.P.L. § 200.40; (2) "the prosecution could have waived use of codefendant's statement"; or (3) "the statement could have been redacted to omit any inculpatory reference to defendant." (Am. Pet. at 10.) Instead of seeking any of those remedies, "counsel requested an instruction that the co-defendant's statement not be considered against [Aramas, which is] the precise instruction that the Supreme Court in Bruton explicitly held was inadequate to protect a defendant's confrontation rights." (Id.)

4 The State notes that "Petitioner raised, in his objections to [this Court's 4/13/00] Report and Recommendation and in his motion for a Certificate of Appealability, the ineffectiveness of trial counsel as cause for the procedural default of the Bruton claim. However, he does not raise it in his amended habeas petition." (Dkt. No. 30: State 7/02 Br. at 9 n. 3). Nevertheless, the State's brief analyzes the "cause and prejudice" claim (e.g., State 7/02 Br. at 9), and the Court liberally construes Aramas' per se amended petition in his favor to assert both an ineffective assistance claim and a cause and prejudice claim. See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "'to raise the strongest arguments that they suggest'"); Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *5 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.).

The State responded that Aramas received effective assistance of trial counsel and therefore he also cannot establish cause and prejudice for the procedural default of his Bruton claim. (Dkt. No. 30: State 7/02 Br. at 4.) The State argues that Aramas' counsel was not deficient for failing to oppose joinder of Aramas and Sanders' trial because opposition likely would have been unsuccessful, in light of the judicial preference for joint trials. (Id. at 6.) Furthermore, the State claims that Aramas' trial counsel permitted Skelton's statement into evidence pursuant to a trial strategy: Aramas "was arrested holding the murder weapon. . . . Trial counsel faced the insurmountable task of explaining [Aramas'] possession of the murder weapon. Thus, his codefendant's admission that [the co-defendant] was a participant and used a gun could reasonably have been an attempt to shift the blame from [Aramas] to Sanders." (Id. at 11.) Even if the admission of Skelton's statement constituted a Bruton violation, the State argues the statement "did not work to petitioner's "actual prejudice'" because "[c]o-defendant's Sander[s'] statement to Mr. Skelton, made no specific reference to [Aramas] and added nothing more to the overwhelming evidence admitted against" Aramas. (Id. at 9.)⁵

5 The State mentions that Skelton's testimony about his conversation with Sanders was "carefully tailored to omit [Aramas'] name in favor of the terms 'next guy,' or "friend.'" (Id. at 7.) This implies that the State instructed Skelton to use these terms and, in effect, to redact his testimony. Also Aramas notes in his Reply Brief that "the admission of Skelton's statement and reference to the noun ['friend'], and their flawed redaction violated his Sixth Amendment rights under Bruton." (Dkt. No. 31: Aramas Reply Br. at 10, emphasis added.) Whether the State instructed Skelton to refer to Sanders' "friend" or whether that was exactly what Sanders had said to Skelton is of no importance; what is important is the undisputed fact that what the jury heard was "friend" and "next guy." (See page 30 below.)

As to the possibility that his counsel's alleged action or inaction was strategic, Aramas argues that "where the record is silent as [to] counsel's reasoning behind the failure to seek severance of trial or redaction of the statement, a hearing is required in order to expand the record with respect to the reasons for trial counsel's strategic choices." (Dkt. No. 29: Am. Pet. at 11.) In addition, Aramas argues that "[t]o suggest that reasonable counsel would purposefully subject his client to the prejudice of a clearly inculpatory confession by a non-testifying co-defendant for the virtually nonexistent gain of having before the jury the fact that Sanders' and defendant used a .25 caliber weapon is implausible and ridiculous." (Id. at 10-11.)

ANALYSIS

The Court has already ruled that Aramas' Confrontation Clause claims are barred by an independent and adequate state ground, specifically waiver by trial counsel's failing to object at trial. Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (S.D.N.Y. Apr. 13, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 827708 (S.D.N.Y. June 27, 2000) (Rakoff, D.J.). The issue now before the Court is whether Aramas' trial counsel was ineffective and, if so, whether that constitutes cause and prejudice to overcome the procedural default on the Confrontation Clause claim. See Aramas v. Donnelly, 2000 WL 559548 at *4 ( cases cited therein).⁶ Ineffective assistance of counsel can represent cause for a procedural default. See e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2646 (1986) ("Ineffective assistance of counsel, then, is cause for a procedural default."); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Aramas v. Donnelly, 2000 WL 559548 at *4 n. 5.⁷ I. THE AEDPA REVIEW STANDARD ⁸

6 As this Court stated in its earlier Report Recommendation:

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 omitted).

Aramas v. Donnelly, 2000 WL 559548 at *4 n. 3 (citing cases).

7 See also, e.g. Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *15 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 365 n. 1 1 (S.D.N.Y. 1999) (Peck, M.J.); Bond v. Walker, 68 F. Supp.2d 287, 297 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.), aff'd, No. 00-2274, 242 F.3d 364 (table), 2000 WL 1804557 at *1 (2d Cir. Dec. 7, 2000); Avincola v. Stinson, 60 F. Supp.2d 133, 146 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Simmons v. Ross, 965 F. Supp. 473, 478 (S.D.N.Y. 1997); Hurd v. Keane, 97 Civ. 2991, 1997 WL 582825 at *2 (S.D.N.Y. Sept. 17, 1997).

8 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 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 *67 (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 *89 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *1243 (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.); 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, 2002 WL 1448474 (2d Cir. June 28, 2002).

Before the Court can determine whether Aramas is entitled to federal habeas relief for his claims that his Confrontation Clause rights were violated and that he was denied his right to receive effective assistance of counsel, 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 1519.⁹ Both, however, "re strict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.¹⁰ "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.

9 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).

10 Accord, e.g., v. Walker, 296 F.3d 129, 135 (2d Cir. 2002);Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 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 1519-20.¹¹

11 Accord, e.g., 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 prisoners 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. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409 120 S.Ct. at 1521.¹²

12 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.

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., 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.

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. 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).¹³ 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).¹⁴ ______A. The Deferential AEDPA Standard Applies Because the First Department Denied Aramas' Ineffective Assistance Claim On The Merits

13 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.

14 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.

On his direct appeal, the First Department rejected Aramas' ineffective assistance claim, stating:

Review of defendant's claim of ineffective assistance of counsel would require a further record to be developed by way of an appropriate motion pursuant to CPL 440.10. Based on the existing record, we find defendant was afforded the effective assistance of counsel.

People v. Aramas, 250 A.D.2d 478, 478, 672 N.Y.S.2d 702, 702 (1st Dep't 1998) (citations omitted).¹⁵ To fully exhaust his ineffective assistance claim in the state courts, Aramas brought a C.P.L. § 440.10 motion in the trial court, which summarily denied it, stating that "[t]he ineffective assistance issue raised here is a matter which entirely involves the record and therefore could be or should have been raised on appeal." (Dkt. No. 30: Gianfrancesco 7/12/02 Aff. Ex. 2:1/15/02 Decision.)

15 CPL § 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 post conviction 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"); 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. Ouinones, 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.) ("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."); 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 in effective 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.");People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 55 (1988); People v. Love, 57 N.Y.2d 998, 1000, 457 N.Y.S.2d 238, 239 (1982); People v. Brown, 28 N.Y.2d 282, 286-87, 321 N.Y.S.2d 573, 577 (1971); People v. Rosa, 257 A.D.2d 471, 472, 682 N.Y.S.2d 845, 845 (1st Dep't) (ineffective assistance of trial counsel claim "would require expansion of the record by way of a CPL 440.10 motion"), appeal denied, 93 N.Y.2d 929, 693 N.Y.S.2d 512 (1999); People v. Figueroa, 254 A.D.2d 226, 226, 679 N.Y.S.2d 304, 304 (1st Dep't 1998) ("Since defendant failed to raise his contention of ineffective assistance of counsel in his motion to vacate the judgment of conviction pursuant to CPL 440.10, the claim is not reviewable on direct appeal since it is based on facts dehors the record and trial counsel has had no opportunity to explain her trial tactics."), appeal denied, 92 N.Y.2d 1049, 685 N.Y.S.2d 427 (1999);People v. Aroyo, 254 A.D.2d 55, 55, 678 N.Y.S.2d 722, 722 (1st Dep't 1998) ("Defendant, by failing to make a CPL 440.10 motion alleging ineffective assistance of trial counsel, has not provided an adequate record upon which to review his claim."), aff'd, 93 N.Y.2d 990, 992, 695 N.Y.S.2d 537, 538 (1999); People v. Frias, 250 A.D.2d 495, 496, 673 N.Y.S.2d 416, 417 (1st Dep't), appeal denied, 92 N.Y.2d 982, 683 N.Y.S.2d 763 (1998); People v. Thornton, 250 A.D.2d 398, 398, 671 N.Y.S.2d 654, 654 (1st Dep't), appeal denied, 92 N.Y.2d 931, 680 N.Y.S.2d 472 (1998); People v. Petty, 204 A.D.2d 125, 126, 612 N.Y.S.2d 8, 9 (1st Dep't) ("Since defendant failed to seek post judgment relief pursuant to CPL Article 440, he has not presented us with an adequate record to review his claim of ineffective assistance of trial counsel."), appeal denied, 85 N.Y.2d 938, 621 N.Y.S.2d 535 (1994); People v. Steele, 135 A.D.2d 673, 673, 522 N.Y.S.2d 248, 249 (2d Dept 1987) ("As we have previously held, the appropriate vehicle by which to obtain review of the defendant's claim of ineffective assistance of counsel is through the commencement of a proceeding pursuant to CPL article 440."),appeal denied, 70 N.Y.2d 1011, 526 N.Y.S.2d 946 (1988); People v. Harris, 109 A.D.2d 351, 360, 491 N.Y.S.2d 678, 687 (2d Dep't), appeal denied, 66 N.Y.2d 919, 498 N.Y.S.2d 1034 (1985).

This Court's comparison of Aramas' First Department brief and his § 440.10 motion papers clearly shows that Aramas presented no new information in his § 440 ineffective assistance claim. (Compare Dkt. No. 11: Gianfrancesco 3/9/00 Aff. Ex. 1: Aramas 1st Dep't Br. with Dkt. No. 30: Gianfrancesco 7/12/02 Aff. Ex. 1: Aramas § 440 Motion Papers.) Indeed, a significant amount of Aramas' § 440 motion papers were taken verbatim from his First Department direct appeal brief It is not surprising that there were no material differences since Aramas argued to the § 440 court that a hearing was required to expand the record because his "ineffective assistance claim rests

primarily on matters of trial strategy, . . . the record is silent as [to] counsel's reasoning behind the failure to seek severance of trial or redaction of the statement," and the trial transcript was lost. (Aramas § 440 Br. at 17.) Aramas informed the § 440 court that his trial "counsel failed to reply" to Aramas' "attempt to obtain a response from defense counsel as to counsel's reasoning, if any, behind the failure to object to the admission of [Sanders'] confession, other than a request for limiting instruction, and as to whether counsel, at the time of trial, was familiar with the relevant law applicable to the case." (Aramas § 440 Br. at 17.)

"Whether the Appellate Division's holding is binding on a court addressing a Section 440.10 motion will depend on whether it is presented with the same set of facts before the Appellate Division." Davis v. Herbert, 00 Civ. 6691, 2001 WL 1464634 at *4 (S.D.N.Y. Nov. 19, 2001). "The court hearing the Section 440.10 motion on an expanded evidentiary record would not be bound by the Appellate Division's decision." Id. On the other hand, absent 'additional proof' outside the record, the § 440 court would be bound by the Appellate Division's holding. See, e.g., Holland v. Irvin, No. 98-3728, 45 Fed. Appx. 17, 2002 WL 1990774 at *2 (2d Cir. Aug. 28, 2002) ("[T]he Section 440.10 court correctly denied [petitioner's] motion to vacate" because his "ineffective assistance of counsel claim was squarely based on the record; he neither submitted additional proof nor alleged that he had additional proof of his trial counsel's ineffectiveness."); People v. Smith, 169 Misc.2d 581, 583, 643 N.Y.S.2d 315, 315-16 (Sup.Ct. Kings Co. 1996) (after Appellate Division rejected defendant's ineffective assistance of counsel claim on direct appeal record, § 440 court could only consider matters outside that record because "not only [is the 440 court] bound by the recent decision of the Appellate Division, but also must not consider matters in the original trial record which were or could have been raised on direct appeal."), aff'd, 237 A.D.2d 388, 655 N.Y.S.2d 416 (2d Dep't 1997).

Here, the First Department suggested that Aramas bring a C.P.L. § 440 motion in order to supplement the record concerning his ineffective assistance claim, but the First Department also ruled that "on the existing record, we find [Aramas] was afforded the effective assistance of counsel." People v. Aramas, 250 A.D.2d at 478, 672 N.Y.S.2d at 702. That last sentence of the First Department's opinion clearly is a decision on the merits of Aramas' ineffective assistance claim.

The trial court denied Aramas' § 440 motion on a procedural ground — that since Aramas had not expanded the record, the claim "could be or should have been raised on appeal." (Dkt. No. 30: Gianfrancesco 7/12/02 Aff. Ex. 2:1/15/02 Decision on § 440 Motion.) Had Aramas not raised the ineffective assistance claim on direct appeal, the § 440 court's decision would have been an adequate and independent state ground barring federal habeas review. See, e.g., Holland v. Irvin, 2002 WL 1990774 at *2.

Since, however, Aramas had raised the same ineffective assistance claim on direct appeal and the First Department ruled on the merits of that claim, the trial court's decision on the § 440 motion does not preclude this Court's habeas review of the claim's merits.¹⁶ And since the First Department ruled on the merits, this Court must employ the AEDPA's deferential standard. Cf. Velasquez v. Murray, 2002 WL 1788022 at *12-14 (where First Department found claim unpreserved but also ruled on merits, and habeas court found the claim was not procedurally barred, "deferential AEDPA review standard applies" to First Department's alternative holding on the merits); Green v. Herbert, 2002 WL 1587133 at *11 (same); Rivera v. Duncan, 2001 WL 1580240 at *8 (same).

16 The State does not argue that Aramas' ineffective assistance claim is procedurally barred. Rather, it candidly concedes the circularity of the First Department's and § 440 court's rulings: "The 440 court apparently mistakenly denied petitioner's motion on the ground that [it was] "a matter which entirely involves the record and therefore could be or should have been raised on appeal' [because], as noted, the claim was raised on appeal, and the Appellate Division, at least partially ruled that a CPL § 440 motion was the appropriate vehicle to bring the claim." (Dkt. No. 30: State Br. at 6 n. 2.)

II. THE FIRST DEPARTMENT'S DENIAL OF ARAMAS' INEFFECTIVE ASSISTANCE CLAIM WAS NOT AN UNREASONABLE APPLICATION OF THE STRICKLAND v. WASHINGTON STANDARD, NOR WAS THERE A BRUTON CONFRONTATION CLAUSE ERROR A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ¹⁷

17 For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see 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 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL929536 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 2068.¹⁸

18 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).

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. 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." Id. at 697, 104 S.Ct. at 2069.¹⁹

19 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 2066.²⁰

20 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 reviewingStrickland 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 191, 199 (2d Cir. 2001).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant "clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254 (d)(1)); see also, Bell v. Cone, 122 S.Ct. at 1852; Sellan v. Kuhlman, 261 F.3d at 315. "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly . . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 122 S.Ct. at 1852.²¹

B. There Was No Bruton Confrontation Clause Violation and Counsel Was Not Ineffective for Failing to Object to the Testimony About the Co-Defendant's Prison Confession That Referred to His "Friend"

21 Arguably, Aramas' ineffective trial counsel claim should be reviewed not only under the federal Strickland standard, but also under the state standard for ineffectiveness of counsel, see People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 898 (1981), which looks to whether counsel supplied "meaningful representation" as a whole. See generally Larrea v. Bennett, 2002 WL 1173564 at *18 n. 30, *24 n. 38. Because of the absence of the trial transcript, the Court limits its analysis to the federal Strickland standard.

At the joint trial of Aramas and Sanders, Skelton testified as to Sanders' jailhouse confession to him about the crime, while Sanders did not testify. (Dkt. No. 29: Am. Pet at 9; see pages 3-4 above.) Aramas claims that trial counsel failed to protect his Sixth Amendment Confrontation Clause rights by failing to request a severance from his co-defendant and failing to object to admission of Skelton's testimony about Sanders' confession. (Id.)

The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068 (1965); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *9 (S.D.N.Y. Jun. 8, 2001) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *29 (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); Avincola v. Stinson, 60 F. Supp.2d 133, 153 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.). The primary purpose of the Confrontation Clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. E.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S.Ct. at 1076-77; Ryan v. Miller, 303 F.3d 231, 247 (2d Cir. 2002); Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir. 1991); James v. People, 2001 WL 706044 at *9; Mendez v. Artuz, 2000 WL 722613 at *29;Avincola v. Stinson, 60 F. Supp.2d at 153.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), the Supreme Court held "that a defendant is deprived of his rights under the Confrontation Clause when his nontestifying codefendant's confession naming him as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant." Richardson v. Marsh, 481 U.S. 200, 201-02, 107 S.Ct. 1702, 1704 (1987) (explaining Bruton). Thus, if Skelton had testified that Sanders told him that Sanders and Aramas shot the victims, there would be a clear Bruton error.

On the other hand, if Skelton merely had testified that Sanders confessed to shooting the victims, without mentioning that anyone else was involved, there would not be a Bruton confrontation issue. InRichardson v. Marsh, the Supreme Court held that "[w]e hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 48 U.S. at 211, 107 S.Ct. at 1709. The Supreme Court in Richardson "express[ed] no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Richardson v. Marsh, 418 U.S. at 211 n. 5, 107 S.Ct. at 1709 n. 5.

The Supreme Court in 1998 — long after Aramas' trial — answered in part the question left open by Richardson. In Gray v. Maryland, the Supreme Court was called on to "decide a question thatRichardson left open, namely, whether redaction that replaces a defendant's name with an obvious indication of deletion, such as a blank space, the word 'deleted,' or a similar symbol, still falls withinBruton's protective rule. We hold that it does." Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 1155 (1998). The Supreme Court inGray explained:

Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result.

For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way, for the jury will often realize that the confession refers specifically to the defendant. This is true even when the State does not blatantly link the defendant to the deleted name, as it did in this case by asking whether Gray was arrested on the basis of information in Bell's confession as soon as the officer had finished reading the redacted statement. Consider a simplified but typical example, a confession that reads "I, Bob Smith, along with Sam Jones, robbed the bank." To replace the words "Sam Jones" with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase "I, Bob Smith, along with, robbed the bank," refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge's instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime.

For another thing, the obvious deletion may well call the jurors' attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession's accusation — once the jurors work out the reference.

Gray v. Maryland, 523 U.S. at 192-93, 118 S.Ct. at 1155-56.

Even after Gray (and certainly before Gray and at the time of Aramas' trial), however, the Second Circuit has found no Bruton Confrontation Clause violation where the co-defendant's confession referred to the complaining defendant not by name or by a blank, but by a neutral pronoun like "another person" or "friend," so long as the confession alone is not incriminating to the complaining defendant, even if it along with other evidence at trial implicates that defendant, and so long as the judge gives a proper limiting instruction. See, e.g., United States v. Wimbley, No. 01-1048, 18 Fed. Appx. 24, 27-28, 2001 WL 998061 at *3 (2d Cir. Aug. 29, 2001) (Plea allocution admitted in which former co-defendant admitted to drug conspiracy with "'another person.'" "The Second Circuit has repeatedly held that redacted confessions, in which the names of co-defendants were replaced by neutral pronouns or other neutral references, may be admitted into evidence. This Circuit has also ruled that "we view the redacted confession in isolation from the other evidence introduced at trial.' Under this holding, so long as the confession standing alone is not incriminating, even if the confession taken together with other evidence implicates the defendant, the confession may be admitted.") (citations omitted); United States v. Williams, 936 F.2d 698, 700-01 (2d Cir. 1991) ("Since Richardson, we have on several occasions admitted redacted confessions in which names of codefendants were replaced by neutral pronouns [— here, "'this guy'" —] and "where the statement standing alone does not otherwise connect co-defendants to the crimes.' These decisions have uniformly held that the appropriate analysis to be used when applying the Bruton rule requires that we view the redacted confession in isolation from the other evidence introduced at trial. If the confession, when so viewed, does not incriminate the defendant, then it may be admitted with a proper limiting instruction even though other evidence in the case indicates that the neutral pronoun is in fact a reference to the defendant. This analysis is adopted directly from Richardson itself, and the principal extension ofRichardson by our decisions is that they allow redacted confessions to refer to accomplices with neutral pronouns.") (citations omitted); United States v. Tutino, 883 F.2d 1125, 1135 (2d Cir. 1989) (Confession redacted defendants' names and "referred to 'others,' 'other people,' and "another person.'" The Second Circuit held "that a redacted statement in which the names of codefendants are replaced by neutral pronouns, with no indication to the jury that the original statement contained actual names, and where the statement standing alone does not otherwise connect co-defendants to the crimes, may be admitted without violating a co-defendant's Bruton rights. . . . In this case, the jury never knew that Tutino's original statement named names, and could easily have concluded that Tutino did not want to reveal the identity of his coconspirators to the agent."), cert, denied, 493 U.S. 1081, 1082, 100 S.Ct. 1139 (1990); United States v. Martinez-Mantilla, 135 F. Supp.2d 422 (S.D.N.Y. 2001) ("The Second Circuit has gone even further [than the Supreme Court in Richardson v. Marsh] to approve the use of neutral pronouns in redacted statements with a proper limiting instruction as sufficient to eliminate any potential Bruton problem. The Second Circuit has further held that the Bruton rule is not violated even where the interlocking of the redacted statements with other evidence at trial could conclusively lead to the identification of the individual referred to through neutral pronouns as the co-defendant; thus, the redacted statements must be viewed in isolation from other evidence to determine whether it is incriminating on its face.") (citations omitted); Ortega v. United States, 897 F. Supp. 771, 779 (S.D.N.Y. 1995) ("[T]he confrontation problem may be eliminated by redacting the [co-defendant's] statement so that it no longer connects the nondeclarant defendant to the crimes charged, by replacing the names of the codefendants with neutral pronouns. . . . Thus, a defendant's statement implicating both himself and his co-defendants, which has been redacted to exclude the co-defendants' names, and which would be incriminating only when linked with other evidence in the case, is properly admitted into evidence [at joint trial], and does not violate the co-defendants' constitutional rights.").²²

22 See also, e.g., United States v. Smith, 198 F.3d 377, 385 (2d Cir. 1999) (within trial court's discretion to admit co-conspirator's plea allocution that referred to "other co-conspirators without naming them," even though Smith was the only person on trial for conspiracy; "the plea allocution was not incriminating on its face because it did not directly implicate Smith. Therefore we find no violation of Gray," where trial court gave limiting instruction), cert. denied, 531 U.S. 864, 121 S.Ct. 156 (2000); United States v. Alvarado, 882 F.2d 645, 652-53 (2d Cir. 1989) (rejecting Bruton claim where co-defendant's statement referred to "'another person'"), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114 (1990); United States v. Knuckles, 581 F.2d 305, 312-13 (2d Cir.) (co-defendant's statement that referred to "other persons" and "one of the people" did not constitute Bruton error because it did not mention defendant by name and did not implicate defendant except when combined with other evidence at trial), cert. denied, 439 U.S. 986, 99 S.Ct. 581 (1978); People v. Sutter, 162 A.D.2d 644, 644, 556 N.Y.S.2d 959, 959 (2d Dep't) ("The redacted videotaped statement referred to the codefendant's accomplices . . . not by name but only as 'my friend, ' 'they' or 'three guys' and never referred to the defendant by name" was "neither facially nor inferentially incriminating."), appeal denied, 76 N.Y.2d 897, 561 N.Y.S.2d 559 (1990).

Here, consistent with Second Circuit case law,²³ Skelton's testimony about Sanders' jailhouse confession did not refer to Aramas by name, and did not leave "blanks" or say "redacted," but properly referred to "'the next guy, his friend'" (see page 4 above). Aramas' counsel properly sought, and received from the trial judge, a limiting instruction. Moreover, counsel had a strategic reason for wanting the confession to be heard by the jury (see page 3 above). Thus, there was noBruton error, and counsel's conduct not only was not ineffective underStrickland's first prong, but was appropriate and effective.²⁴

23 Even if it could be argued that the logic of the Supreme Court'sGray v. Maryland decision (see pages 26-27 above) should be extended to cover confessions that use pronouns instead of blanks (and the Second Circuit even to date has not taken that step), Gray was not decided until long after Aramas' trial.

24 Compare Henry v. Scully, 918 F. Supp. 693, 698-99, 705, 713-18 (S.D.N.Y. 1995) (counsel ineffective for failing to object to admission of codefendant's confession that named defendant, failing to object to prosecution's summation that confession proved defendant's guilt, failing to request limiting instruction, and failing to object to judge's instruction that confession could be considered against both defendants, and where there could be no strategic reason to allow confession into evidence), aff'd, 78 F.3d 51 (2d Cir. 1996).

Because Skelton's testimony did not violate Aramas' Confrontation Clause rights under Bruton, Aramas's counsel's conduct was not "objectively unreasonable" so as to constitute ineffective assistance.E.g. Ramirez v. United States, 185 F. Supp.2d 246, 262 (E.D.N.Y. 2001) (no ineffective assistance when counsel failed to object to co-defendant's redacted statement because "[n]ot only were all names deleted but all specific locations were removed."); Galvin v. Kelly, 79 F. Supp.2d 265, 280 (W.D.N.Y. 2000) (since redacted statement did not violate the Confrontation Clause, counsel's failure to object to its admission was neither deficient nor prejudicial); see, e.g., Aparicio v. Artuz, 269 F.3d 78, 99 n. 10 (2d Cir. 2001); 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. Diaz, 176 F.3d 52, 113 (2d Cir.) (where there were "sound evidentiary bases for the admission of the challenged co-conspirator statements . . . trial counsel was not ineffective for failing to object."), cert. denied, 528 U.S. 875, 957, 120 S.Ct. 181, 314, 315, 386 (1999); United States v. Brooks, 82 F.3d 50, 54 (2d Cir.), cert. denied, 519 U.S. 907, 117 S.Ct. 267 (1996); United States v. Kirsch, 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"); United States v. DiPaolo, 804 F.2d 225, 234 (2d Cir. 1986) (no ineffective assistance where attorney failed to make an objection that "appears without merit"); Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354 (1987); Mance v. Miller, 01 Civ. 5423, 2002 WL 377533 at *8 (S.D.N.Y. Mar. 8, 2002) (counsel's failure to move for dismissal "was not unreasonable" because "there is no reasonable probability that the New York trial court would have granted Petitioner's motion"); 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.").²⁵

C. Severance Was Not Required Because Joinder Was Proper and Aramas' Confrontation Rights Were Not At Risk; Counsel Thus Was Not Ineffective for Failing to Seek A Severance

25 See also, e.g., 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"); United States v. Corcoran, 855 F. Supp. 1359, 1367-68 (S.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, No. 95-1357, 100 F.3d 944 (table), 1996 XVL 75765 at *3 (2d Cir. Feb. 20, 1996),cert. denied, 517 U.S. 1228, 116 S.Ct. 1864 (1996); Perez v. United States, 89 C.R. 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."); 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).

Aramas also alleges that he was denied effective assistance because his counsel consented to a joint trial with co-defendant Sanders and failed to move for a severance.²⁶ (Dkt. No. 29: Am. Pet. at 9-10.) This Court finds that opposition to joinder or a motion for severance would not have been successful, and counsel's performance was not deficient in this respect.

26 "On December 18, 1987, the trial court had granted the People's motion to consolidate [Aramas'] case with that of his co-defendant because the charges were based on the same incident. There is no indication in the court file papers that defense counsel filed papers opposing the People's motion." (Dkt. No. 11: Gianfrancesco 3/9/00 Aff Ex. 1: Aramas 1st Dep't Br. at 15 n. 4; Doc. No. 29: Am. Pet. at 4 n. 3.) Because joinder of two defendants charged with the same criminal act would be proper under New York law, and because any motion made by counsel to oppose joinder or request severance would be judged by the same standard, the Court will consider this issue under the severance line of cases.

"Although the Second Circuit has not articulated a standard against which to assess a habeas petitioner's severance claim, it has said that the petitioner's burden is 'at least' as great as that of a federal defendant raising the same claim on direct appeal." Campbell v. Andrews, No. 97 Civ. 2534, 1999 WL 997277 at *5 (E.D.N.Y. Oct. 19, 1999) (citingGrant v. Hoke, 921 F.2d 28, 31 (2d Cir. 1990)); accord, accord, e.g., Calhoun v. Walker, No. 97CV0550, 1999 WL 33504437 at *3 (N.D.N.Y. Feb. 26, 1999) ("In a habeas proceeding, the Petitioner must demonstrate at least [as] much" as a defendant in a federal trial would need show for a severance.).

"In federal court, decisions on pretrial severance motions are discretionary, and a defendant will win a new trial only by showing that the district court abused its discretion. In addition, the defendant "must show that he was so severely prejudiced by the joinder as to have been denied a fair trial, not that he might have had a better chance for acquittal at a separate trial.'" Campbell v. Andrews, 1999 WL 997277 at *5 (citations omitted) (quoting Grant v. Hoke).

There is a strong presumption of a joint trial where two (or more) defendants are charged with having committed the same crime. As the Supreme Court has explained:

It would impair both the efficiency and the fairness of the criminal justice system to require . . . that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability — advantages which sometimes operate to the defendant's benefit. Even apart from these tactical considerations, joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.

Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708-09 (1987) (fn. omitted); accord, e.g., Zafiro v. United States, 506 U.S. 534, 537-40, 113 S.Ct. 933, 937-38 (1993); United States v. Nachamie, No. 00-1806, 28 Fed. Appx. 13, 21-22, 2002 WL 108341 at *5 (2d Cir. Jan. 25, 2001); United States v. Shareef, 190 F.3d 71, 77 (2d Cir. 1999) ("[I]n the federal system, there is a preference for the joint trial of defendants indicted together. . . . A severance need not be granted simply because codefendants have made incriminating statements."); United States v. Salameh, 152 F.3d 88, 115 (2d Cir. 1998), cert. denied, 525 U.S. 1112, 119 S.Ct. 885 (1999); United States v. Hernandez, 85 F.3d 1023, 1029 (2d Cir. 1996); United States v. Aulicino, 44 F.3d 1102, 1116-17 (2d Cir. 1995); United States v. Gigante, 979 F. Supp. 959, 962 (S.D.N.Y. 1997) (Rakoff, D.J.) ("in considering the motion to sever . . . the Court is obliged to "pay heed to the powerful institutional interests in judicial economy favoring joint rather than separate trials.'"); United States v. Matos-Peralta, 691 F. Supp. 780, 789 (S.D.N.Y. 1988); United States v. Persico, 621 F. Supp. 842, 852-53 (S.D.N.Y. 1985); United States v. Kahaner, 203 F. Supp. 78, 80-81 (S.D.N.Y. 1962) (Weinfeld, D.J.), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 73, 74 (1963).

"[T]o warrant a severance, each defendant must meet the 'heavy burden' of showing that he will be so severely prejudiced by a joint trial that he will in effect be denied a fair trial. In this regard, a defendant must demonstrate "substantial prejudice from a joint trial, not just a better chance of acquittal at a separate one.' Finally, a defendant must show that the prejudice resulting from joinder is so compelling that the trial court will be unable to afford protection." United States v. Matos-Peralta, 691 F. Supp. at 789 (citations omitted); see also, e.g., United States v. Diaz, 176 F.3d 52, 104 (2d Cir.) ("even when the risk of prejudice is high, measures less drastic than severance, such as limiting instructions, often will suffice to cure any risk of prejudice.'") (quoting Zafiro v. United States, 506 U.S. at 539, 113 S.Ct. at 938),cert. denied, 528 U.S. 875, 957, 120 S.Ct. 181, 314, 315, 386 (1999);United States v. Haynes, 16 F.3d 29, 32 (2d Cir. 1994); United States v. Beverly, 5 F.3d 633, 637-38 (2d Cir. 1993) ("Even if prejudice is shown, severance is not required."); United States v. Tutino, 883 F.2d 1125, 1130 (2d Cir. 1989), cert. denied, 493 U.S. 1081, 1082, 100 S.Ct. 1139 (1990); United States v. Potamitis, 739 F.2d 784, 790 (2d Cir.), cert. denied, 469 U.S. 918, 105 S.Ct. 297 (1984); United States v. Sotomayor, 592 F.2d 1219, 1228 (2d Cir.) (abuse of discretion standard for severance is a "difficult burden"), cert. denied, 442 U.S. 919, 99 S.Ct. 2842 (1979); United States v. Ricco, 549 F.2d 264, 274 (2d Cir.), cert. denied, 431 U.S. 905, 97 S.Ct. 1697 (1977); United States v. Fantuzzi, 463 F.2d 683, 687 (2d Cir. 1972); United States v. Martinez-Montilla, 135 F. Supp.2d 422, 423-24 (S.D.N.Y. 2001); United States v. Persico, 621 F. Supp. 842, 852.²⁷

27 The Court notes that the New York standard is not significantly different. "New York permits joinder where 'all the offenses charged are based on a common scheme or plan.' N.Y.C.P.L. § 200.40(1)(b). The decision to deny a severance motion rests in the sound discretion of the trial judge. People v. Jackson, 671 N.Y.S.2d 329 (2d Dep't 1998)[,appeal denied, 92 N.Y.2d 899, 680 N.Y.S.2d 63 (1998)]; People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769 (1989). Severance is compelled only where "the core of each defense is in irreconcilable conflict with the other and where there is a significant danger . . . that the conflict alone would lead the jury to infer defendant's guilt.' Id. at 774. The defendant's burden to show that the trial court abused its discretion by failing to sever the trial is 'substantial.' People v. Mahboubian, 544 N.Y.S.2d at 773." Torres v. Irvin, 33 F. Supp.2d 257, 266, 278 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.).

Aramas argues that counsel should have sought a severance to protect his Confrontation Clause rights because of Skelton's testimony about Sanders' confession. (Dkt. No. 29: Am. Pet. at 9; Dkt. No. 11: Gianfrancesco 3/9/02 Aff. Ex. 1: Aramas 1st Dep't Br. at 28; Dkt. No. 30: Gianfrancesco 7/12/02 Aff. Ex. 1: Aramas § 440 Br. at 13.)²⁸ The Court has ruled in the prior section that there was no Confrontation Clause error (nor ineffective counsel) because Sanders' confession only referred to "the next guy" and "the friend." (See pages 25-32 above.) Aramas' counsel sought and received a limiting instruction as to that testimony.

28 "To obtain a severance on the ground of antagonistic defenses, a defendant must show that the conflict is so irreconcilable that acceptance of one defendant's defense requires that the testimony offered on behalf of a codefendant be disbelieved." United States v. Tutino, 883 F.2d at 1130 (citing United States v. Potamitis, 739 F.2d at 790, United States v. Carpentier, 689 F.2d 21, 27-28 (2d Cir. 1982), cert. denied, 459 U.S. 1108, 103 S.Ct. 735 (1983)). Aramas does not argue here (nor did he argue in state court) that severance was warranted because his defense was antagonistic to Sanders.
Aramas's trial defense appears to have been misidentification at the scene of the shooting and that he purchased the murder weapon after the shooting, perhaps from Matil. (See page 3 above.) Aramas argues that "apart from the statement of the non-testifying co-defendant, petitioner's guilt depended primarily on the credibility of Matil, the sole witness to the incident. Indeed, Fuentes was not a witness to the alleged offenses, and her identification testimony was highly suspect, as her only identification of petitioner made at trial, over a year and a half after the incident. Fuentes' credibility was also undermined by her decision not to speak with the police until the month of her trial testimony. Further, the credibility of Matil, the sole eyewitness was also highly suspect." (Dkt. No. 31: Aramas Reply Br. at 4.)

In similar cases, the courts have held that a severance is not warranted because of a co-defendant's confession if the confession is properly redacted and a limiting instruction given. See e.g., Richardson v. Marsh, 481 U.S. at 211, 107 S.Ct. at 1709 ("We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence."); United States v. Shareef, 190 F.3d at 77-78 ("A severance need not be granted simply because codefendants have made incriminating statements," where the statements can be redacted for a joint trial); United States v. Martinez-Montilla, 135 F. Supp.2d at 423-25 ("Given the strong policy in favor of joint trials delineated by the Supreme Court, however, defendants seeking severance [on Bruton grounds] have a difficult burden to meet, particularly where less extreme remedies such as limiting instructions are available to cure any potential risk of prejudice. . . . [T]he statements viewed as redacted do not facially incriminate the co-Defendants, and a jury would identify co-Defendants only if it disregarded a limiting instruction given by this Court. . . . [N]o prejudice results where a limiting instruction is given and thus, severance is not warranted."); Ortega v. United States, 897 F. Supp. 771, 779 (S.D.N.Y. 1995) (motion for severance properly denied because statement did not infringe petitioner's confrontation clause rights when "the redaction of [co-defendant's] statement effectively removed all manifest references to Ortega from the statement, and was not incriminating on its face [and so] did not infringe on Ortega's rights under the Confrontation Clause"); United States v. Jackson, 90 C.R. 109, 1990 WL 151098 at *1 (S.D.N.Y. 1990) ("Because the redacted confessions proposed here by the Government substitute neutral pronouns for all references to codefendants, the statements do not, standing alone, inculpate any codefendant; thus all defendants' motions for severance pursuant to United States v. Bruton are denied."); United States v. Cornwell, No. 89-CR-196, 1990 WL 3573 at *1 (N.D.N.Y. Jan. 8, 1990) (limiting instruction sufficient and severance not warranted because co-defendant's statement did not include defendant's name and was "therefore not facially incriminating"), aff'd, Nos. 90-1337, 90-1347, 90-1348, 940 F.2d 649 (table) (2d Cir. Jun. 25, 1991); United States v. Matos-Peralta, 691 F. Supp. at 790 ("The motions to sever are denied on the condition that certain portions of [the co-defendant's] post-arrest statement may be redacted prior to its introduction at trial."); United States v. Kahaner, 203 F. Supp. at 81 ("The fact that a declarant's statement contains incriminating references to his alleged co-conspirators is not sufficient in and of itself to require a separate trial. . .").

Aramas's claim that trial counsel was ineffective for failing to request a severance (or oppose joinder) lacks merit because the Court "see[s] no likelihood that a severance motion would have been granted."United States v. Shareef, 190 F.3d at 78; Henry v. Scully, 918 F. Supp. 693, 714 n. 7 (S.D.N.Y. 1995) (ineffective assistance claim denied because petitioner "show[ed] no federal constitutional right to a severance . . . and he would not have been entitled to a severance under New York law either."), aff'd, 78 F.2d 51 (2d Cir. 1996); see also, e.g., United States v. Holmes, 44 F.3d 1150, 1158-59 (2d Cir. 1995) ("rarely should such [severance] motions be granted; even more rarely are convictions reversed when severance motions have been denied."); Negron v. Sullivan, No. CV-88-1136, 1989 WL 35931 at *3 (E.D.N.Y. Apr. 10, 1989) (where co-defendant's statement did not infringe petitioner's Confrontation Clause rights, "there was thus no reason for petitioner's counsel to move for a severance, his performance could not have been 'deficient' under the standard set forth in Strickland."), aff'd, No. 89-2173, 891 F.2d 278 (2d Cir. Nov. 6, 1989); see also cases cited at page 31-32 above (for the proposition that counsel cannot be ineffective for failing to make a nonmeritorious motion).

D. Even If A Bruton Error Occurred, It Was Harmless, and Counsel's Performance Did Not Prejudice Aramas

The First Department held that even if Aramas had not waived his Confrontation Clause claim, "given the overwhelming evidence of guilt, the Bruton error was harmless beyond a reasonable doubt." People v. Aramas, 250 A.D.2d 478, 478, 672 N.Y.S.2d 702, 702 (1st Dep't 1998) (citations omitted). Even if the Court were to assume, arguendo, that the admission of Skelton's testimony resulted in a Bruton error, the Court agrees with the First Department's alternative holding that any such error was harmless.²⁹

29 Similarly, under Strickland, even if counsel's performance was unreasonable, Aramas cannot establish prejudice, the second prong of theStrickland analysis.

It is settled law that "violations of the confrontation clause may, in an appropriate case, be declared harmless" error. Klein v. Harris, 667 F.2d 274, 290 (2d Cir. 1981), overruled on other grounds by Dave v. Attorney General, 696 F.2d 186, 195 (2d Cir. 1982); see also, e.g., Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438 (1986) (harmless error applies to Confrontation Clause issue); Khan v. Portuondo, No. 97-2942, 1 Fed. Appx. 16, 17-18, 2001 WL 11048 at *1.2 (2d Cir. Jan. 4, 2001); Yarborough v. Keane, 101 F.3d 894, 896 (2d Cir. 1996) (citing Arizona v. Fulminante, 499 U.S. 279, 307, 111 S.Ct. 1246, 1263 (1991)), cert. denied, 520 U.S. 1217, 117 S.Ct. 1706 (1997); United States v. Aulicino, 44 F.3d 1102, 1109 (2d Cir. 1995) ("Testimony admitted over a defendant's valid Confrontation Clause objection, however, is subject to harmless-error analysis, "citing Delaware v. Van Arsdall); Samuels v. Mann, 13 F.3d 522, 526-27 (2d Cir. 1993), cert. denied, 513 U.S. 849, 115 S.Ct. 145 (1994); Tinsley v. Kuhlmann, 973 F.2d 163, 165-66 (2d Cir. 1992) (holding that any violation of defendant's confrontation rights was harmless), cert. denied, 506 U.S. 1081, 113 S.Ct. 1050 (1993); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *29 (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); Mercado v. Stinson, 37 F. Supp.2d 267, 277 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.);Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *5 (S.D.N.Y. May 29, 1997) ("Confrontation Clause violations are subject to harmless-error analysis," citing Delaware v. Van Arsdall).³⁰

30 The Second Circuit has not yet determined "which harmless error standard applies to post-AEDPA habeas cases." Ryan v. Miller, 303 F.3d 231, 253-54 (2d Cir. 2002):

Before the enactment of AEDPA, courts applied two different harmless error standards. For cases on direct appeal, courts applied the Chapman standard, holding an error was harmless if it was "harmless beyond a reasonable doubt," meaning that the reviewing court found "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). For cases on collateral review, courts applied the more stringent Brecht standard, holding that an error was harmless if it did not result in "actual prejudice," that is, it did not have a "'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

After the enactment of AEDPA, many courts have questioned whether they should continue to apply the pre-AEDPA Brecht standard to cases on collateral review, or whether courts should now apply a mixed AEDPA/Chapman standard, examining "whether the state court's decision was 'contrary to, or involved an unreasonabl[e] application of Chapman." Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir.) (per curiam) (quoting 28 U.S.C. § 2254 (d)(1)), cert. denied, 122 S.Ct. 197 (2001). Post AEDPA Second Circuit cases have declined to rule on this issue, finding instead that the result is the same under either standard.

Ryan v. Miller, 303 F.3d at 254. Because in this case any error was harmless under either standard, the Court need not decide the issue that the Second Circuit has left open.

In conducting a Confrontation Clause harmless error analysis, the Supreme Court and the Second Circuit have set forth the appropriate factors to consider:

In conducting this analysis, we must consider (1) how important the witness' testimony was to the prosecution's case, (2) whether the testimony was cumulative, (3) whether other evidence in the record corroborated or contradicted the witness on relevant matters, (4) whether other cross-examination of the witness was permitted and the extent of it, and (5) what effect the testimony would have on proof of defendant's guilt. See Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438.

Tinsley v. Kuhlmann, 973 F.2d at 166; accord, e.g., Latime v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994), cert. denied, 514 U.S. 1006, 115 S.Ct. 1319 (1995); Blount v. Artuz, No. 98-2923, 189 F.3d 460 (table), 1999 WL 710251 at *2 (2d Cir. Sept. 2, 1999); Mendez v. Artuz, 2000 WL 722613 at *30; Mercado v. Stinson, 37 F. Supp.2d at 277-78; see also, e.g., Ojeda v. Artuz, 1997 WL 283398 at *5. "[T]he weight of the prosecution's case against the defendant is the most significant" factor in determining whether a trial error is harmless. Samuels v. Mann, 13 F.3d at 526, 527 ("In order to find the [Confrontation Clause] error in this case to be harmless, we need not conclude that the evidence against Samuels was overwhelming. Indeed, in Brecht, the Court found the evidence of the petitioner's guilt to be "if not overwhelming, certainly weighty.'"); accord Khan v. Portuondo, 1 Fed. Appx. 16, 18, 2001 WL 11048 at *2 ("In this Circuit, the weight of the evidence is the most important factor in determining prejudice."); Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir. 1996) ("The most dispositive factor in this [harmless error] analysis is the overall strength of the prosecution's case. . . . The Appellate Division considered the evidence supporting Glenn's conviction overwhelming' even without [the] statement, but we need not go that far. It is enough if we believe (as we do) that, [the] statement notwithstanding, Glenn's conviction was based on 'weighty' evidence."),cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Latime v. Mann, 25 F.3d at 1167-68.

The evidence against Aramas was overwhelming (or at least weighty) even without Skelton's testimony about Sanders' confession. Aramas was arrested with the murder weapon, and two eyewitnesses positively identified him. (See pages 2-3 above.) Jose Matil testified that he took Aramas and Sanders to the victims' apartment, saw Aramas holding a gun, was present during the shootings, and later identified Aramas in a line-up. (See page 2 above.) Another eyewitness, Grisel Fuentes, saw Aramas, Matil, and Sanders in the victims' apartment, heard three gunshots from within, and saw Aramas and Sanders flee the apartment, with Aramas holding a gun, then saw the three victims dead. (See page 3 above.) Balistics also established that bullet fragments recovered from the victims were fired from the gun Aramas was carrying at the time of his arrest. (Id. at 13.)³¹

31 Compare, e.g., Khan v. Portuondo, 1 Fed. Appx. at 18, 2001 WL 11048 at *2 (Bruton error harmless when overwhelming independent evidence consisted of(i) testimony of eyewitness to shooting; (ii) Khan's ownership of murder weapon; (iii) Khan's admission that he shot victim; and (iv) Khan's inculpatory statements to an undercover agent shortly after the shooting.), and Ruiz v. Kuhlmann, 97 CV 6620, 2001 WL 579788 at *9 (E.D.N.Y. May 30, 2001) (in trial of three defendants, Bruton error harmless when overwhelming evidence consisted of uncontroverted testimony of two eyewitnesses who saw petitioner at crime scene, holding and discharging his weapon, and medical and balistics evidence supporting the theory that there were three shooters); with, e.g., Figueroa v. Portuondo, 96 F. Supp.2d 256, 275 (S.D.N.Y. 1999) (Bruton error harmful because none of twelve prosecution witnesses could place petitioner at crime scene, there was no physical evidence linking petitioner to crime scene, and he was not carrying a weapon when arrested).

Similarly, even assuming arguendo that counsel was deficient in not moving for severance or requesting a redaction of Skelton's statement, Aramas has failed to prove prejudice, the second prong of the Strickland standard. Frankos v. Sendowski, 937 F. Supp. 227, 234 (S.D.N.Y. 1996) (Parker, D.J.) (Bruton error harmless and counsel not ineffective because no prejudice, where eyewitness evidence was strong), aff'd, No. 96-2704, 116 F.3d 465, 1997 WL 321610 at *3 (2d Cir. Jun. 9, 1997); accord, e.g., Solomon v. Harris, 749 F.2d 1, 3 (2d Cir. 1984) (failure of petitioner's counsel to raise a Bruton objection did not constitute ineffective assistance of counsel, because failure did not undermine the defense),cert. denied, 470 U.S. 1087, 105 S.Ct. 1851 (1985); Brinkley v. Lefeyre, 621 F.2d 45, 47 (2d Cir.) ("Since the failure to give a Bruton-type instruction regarding [the co-defendant's] admissions would be harmless error, the failure to request it was hardly ineffective assistance."),cert. denied, 449 U.S. 868, 101 S.Ct. 203 (1980); Bisnett v. Kelly, No. 97 CV 2127, 2002 WL 2022222 at *15 (E.D.N.Y. July 8, 2002) ("failure of [petitioner's] counsel to move for severance or redaction satisfies neither prong of Strickland" where the statement was admissible without implicating the Confrontation Clause.); see also, e.g., United States v. Smith, Nos. 00-4890, 01-4089, 43 Fed. Appx. 529, 533, 2002 WL 482561 at *3 (4th Cir. Apr. 1, 2002) ("even assuming the admission of [co-defendant's] statement without a limiting instruction constituted Bruton error, the error did not affect [defendant's] substantial rights because other overwhelming evidence established [defendant's] guilt. Furthermore, because the redacted statement conformed with Bruton and Richardson, the record does not conclusively show counsel's performance fell below a reasonable standard" of effectiveness.) (citations omitted).

Because Aramas's ineffective assistance claim is meritless, it may not serve as "cause" for the procedural default of his ineffective trial counsel claim, which is therefore barred from habeas review. See e.g., Aparicio v. Artuz, 269 F.3d 78, 92-93 (2d Cir. 2001); 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.).

CONCLUSION

For the reasons set forth above, Aramas' habeas corpus petition should be DENIED. Because Aramas has not made a "substantial showing of the denial of a constitutional right," a certificate of appealability should not issue. 28 U.S.C. § 2253.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).