Larrea v. Bennett

Full title: LEONARDO LARREA, Petitioner, v. FLOYD G. BENNETT, Superintendent…

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

Date published: May 31, 2002

01 Civ. 5813 (SAS) (AJP) (S.D.N.Y. May. 31, 2002)

Opinion

01 Civ. 5813 (SAS) (AJP).

May 31, 2002

REPORT AND RECOMMENDATION

Andrew J. Peck, United States Magistrate Judge

To the Honorable Shira A. Scheindlin, United States District Judge:

Petitioner Leonardo Larrea, represented by retained counsel, seeks a writ of habeas corpus from his 1990 conviction in Supreme Court, New York County, for two counts of second degree murder, for which he was sentenced to two consecutive terms of fifteen years to life. (Pet. ¶¶ 6-7.) Larrea's petition alleges that: (1) the trial court violated his due process rights by giving an improper Allen charge (Pet. ¶¶ 47-57); (2) his trial counsel rendered ineffective assistance by not objecting to the Allen charge (Pet. ¶¶ 58-68); and (3) his appellate counsel rendered ineffective assistance by failing to raise on direct appeal (as opposed to a C.P.L. § 440 motion) an ineffective assistance of trial counsel claim (Pet. ¶¶ 69-78).

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

FACTS

The Trial Evidence ¹

1 The Court relies on the statement of facts in Larrea's petition and the parties' briefs to the First Department for these background facts, as the Court has only been supplied with the trial transcript beginning with the parties' summations, and including the trial court's charge and supplemental charges that are at issue in this habeas petition.

Larrea's jury trial on two counts of second degree murder commenced on February 14, 1990, in Supreme Court, New York County, before Justice Frederick Berman and a jury. (Pet. ¶¶ 2-6.) Larrea was represented at trial by retained counsel, David Segal, Esq. (Pet. ¶ 5.)

According to Larrea's habeas petition, "[o]n July 9, 1987, shortly before 10:00 p.m., Victor Martin Gomez and Victor 'Cacaito' Duran were slain, execution style, in the streets of Manhattan." (Pet. ¶ 18;see Dkt. No. 3: State Answer Ex. A: Larrea 1st Dep't Br. at 1.) The prosecution's main witness was Miguel Tejeda, who testified in exchange for a deal in another, unrelated case. (Pet. ¶ 22.) "According to Tejeda, three men — Leonardo Larrea, 'Royce' Gonzalez and 'Quilin' Fernandez — killed Duran and Gomez. Tejeda supposedly witnessed the entire incident from across the street." (Pet. ¶ 28; see Larrea 1st Dep't Br. at 8-10.) Other witnesses, however, could not identify Larrea, since the lighting at the scene was "very poor." (Pet. ¶¶ 30-32; see Larrea 1st Dept Br. at 2-7.) The murder weapon was not recovered, and "no forensic evidence implicated Mr. Larrea in the killings." (Pet. ¶¶ 34-35.) Larrea did not testify at trial. (See Larrea 1st Dep't Br. at 11.)

The Trial Court's Jury Charge

On February 22, 1990, the trial judge delivered the main jury charge, including the following explanation of the reasonable doubt standard and the prosecution's burden of proof:

Under our law in this and every criminal case, the accused is presumed to be innocent and that presumption remains with him throughout the trial until his guilt is proved beyond a reasonable doubt. That presumption of innocence continues right through the trial and exists now at this very moment and accompanies you into the jury room. The only way it can be destroyed is by all of you agreeing on the basis of the evidence, that the defendant is guilty.

You must start by saying he must be innocent and only if the evidence which you accept and which you believe, convinces you beyond a reasonable doubt that presumption must be discarded, and a verdict of guilty returned, only then is the presumption destroyed.

Now, this burden remains upon the prosecution throughout the trial and never shifts to the defendant. No defendant is required to prove his innocence and each element of any crime submitted to you, as I will define those elements, must be proved beyond a reasonable doubt.

Now, the rule of law is that the defendant's guilt as to each and every element of any crime submitted to you by the Court must be proved beyond a reasonable doubt by the prosecution. If this burden is not fulfilled, you must acquit the defendant. If that burden is fulfilled, you would be justified in convicting the defendant.

What is the meaning of the term reasonable doubt? In order to understand this term, I will first tell you what it is not. It is not just any kind of a doubt, a mere whim, or guess, or feeling or surmise that an accused may not be guilty. The human mind can conceive of a doubt on almost anything. It is not a requirement of proof beyond all doubt. It is not proof to a mathematical or scientific certainty.

On the other hand, it is not proof that the defendant is guilty by a mere preponderance of the weight of the credible evidence, as some of you who have sat in civil cases understand the rule to be in civil cases. Proof of the defendant's guilt by a mere preponderance of the weight of the credible evidence, is not sufficient to prove the defendant's guilt in this or any other criminal case.

Having indicated to you what it is not, let me attempt to tell you what a reasonable doubt is.

Reasonable doubt is a doubt which you conscientiously have after the use of your powers of reasoning. which arises out of the evidence, or the lack of credible evidence.

It is a doubt for which you can give a reason, if called upon to do so by a fellow juror in the jury room.

The standard of reason must prevail and when you are convinced that you have no doubt in reason of the defendant's guilt, then that is sufficient and you would be justified in rendering a verdict accordingly.

Consequently, after fully, fairly, and conscientiously considering and weighing all the evidence and lack of evidence, using the same powers of reasoning and power of decision that you would apply and do apply to weighty and important matters, relating to your personal and business affairs, if you then believe that each element of the particular crime submitted to you has been established beyond a reasonable doubt, then you would be justified in finding the defendant guilty of that crime.

On the otherhand, if you have such a reasonable doubt arising out of the credible evidence, or lack of it, as to any element of a particular crime submitted to you, the benefit of that doubt must be given to the defendant, and your verdict must be not guilty.

(Dkt. No. 13: Trial Transcript ["Tr."] 813-17, emphasis added.) Larrea's counsel had no objections to the charge. (Tr. 832.)

The jury commenced deliberations at around one p.m. (Tr. 837-38; see also Pet. ¶ 38.) At around seven p.m., the jury sent the judge a note stating: "'We the jury has not yet reached a verdict since 1:15 p.m.'" (Tr. 840-41; see also Pet. ¶ 38.) The judge informed the jury that, since the note was unclear as to what the jury wanted the court to do, the jury should return to the jury room and clarify the note. (Tr. 841.) The jury resumed deliberations at 7:04 p.m. (Tr. 841.) At 7:32 p.m., the judge adjourned deliberations and sequestered the jury for the night. (Tr. 841-43.)

Deliberations resumed the next day, February 23, 1990, at 9:45 a.m. (See Tr. 845; see also Pet. ¶ 39.) At 10:56 a.m., the jury sent a note requesting that the entire charge be read back. (Tr. 844-45.) After further consultation, the jury requested that the court read back the first part of the jury charge dealing with "general principles of law that apply to every criminal case," as opposed to the remainder of the charge dealing with the specific crime at issue. (Tr. 845-51.) The judge then read back, virtually verbatim, the entire first half of his main charge (Tr. 851-72), including the reasonable doubt standard and the burden of proof (Tr. 869-72). The jury resumed deliberations at 12:54 p.m. (Tr. 872.)

The Preliminary Allen Charge

At 1:58 p.m., the jury sent the judge a note stating: "'We, the jury, are at a deadlock.'" (Tr. 873; see also Pet. ¶ 39.)² The judge read the note to counsel and informed counsel that "[u]nder those circumstances I will give them a preliminary Allen charge. I have two Allen charges that I give. This is a preliminary one and I will give them that Allen charge at this time." (Tr. 873.) The jury was brought into the courtroom and the judge instructed them:

2 Although the judge stated that the jury was being brought in at "12:15" (Tr. 873), this appears to be erroneous, as the jury previously resumed deliberations at 12:54 (Tr. 872), the judge stated on the record that the jury sent the note in at "1:58" (Tr. 873), and the jury continued deliberations at "2:18" (Tr. 874).

Madam forelady and members of the jury, I have your latest note which has been marked as Court Exhibit VI in which you say, "We the jury are at a deadlock."

You know, of course, that your function as jurors is to deliberate and make every effort to reach a verdict. That function to reach a fair conclusion from the law and the evidence is a very important one.

When you are in the jury room it is essential, of course, that you listen to each other, discuss the evidence and the issues in the case among yourselves and it is the duty of each of you as jurors to consult with each other and to deliberate with a view of reaching an agreement on a verdict.

Now, obviously you are not being asked to violate your individual judgment and your conscience. While you should not surrender conscientious convictions of what the truth is and the weight of the evidence, and while each of you must decide the case for yourselves and not merely acquiesce in the conclusions of your fellow jurors, it is essential that you examine the issues and the evidence before you with candor and frankness and with proper deference to and regard to the opinions of each other.

Remember in your deliberations that this case is very important to both parties. . . . They and I rely upon you to give full and conscientious consideration to the evidence before you. By so doing you carry out to the fullest your oath as jurors to well and truly try the issues of this case and render a true verdict.

Consequently, I'm going to ask you to return to the jury room to resume your deliberations and attempt to see if you can reach a verdict.

The jury will retire and continue at 2:18.

(Tr. 873-74.) Neither side objected to this charge. (See Tr. 874-75.)

The Second Allen Charges and Verdict and Sentence

At five p.m., the jury sent out a third note which the judge read to counsel: "'We the jury cannot reach a verdict. We are at a deadlock at 11 to 1 since 1:15 Thursday February 22, 1989 [sic]. Further deliberations will be useless.'" (Tr. 875; see also Pet. ¶ 41.) The judge then brought the jury into the courtroom at 5:15 p.m. and stated:

Madam forelady and members of the jury, I have your latest note in which you say that the jury cannot reach a verdict, we are deadlocked at 11 to 1 since 1:15 p.m. on Thursday February 22, 1990, further deliberations will be useless.

As you all know the purposes [sic] of a trial is a search for the truth and therefore if at all possible it is desirable that a jury [reach] a verdict one way or the other.

Now, I'm not suggesting that you should agree to a verdict that you do not consider to be a just verdict, but I am suggesting that you attempt to resolve your differences and agree on a proper verdict that is in accordance with your findings of fact and the law as I have explained it to you.

You will recall that when you were selected as jurors you took a solemn oath that you would decide this case on the evidence or the lack of evidence alone. You swore that you would apply the law to the facts, even though you might not like the law or might disagree with it. You swore that you would be completely objective in arriving at your final determination. You swore that you would put aside all passion, all prejudice, all bias in arriving at your final determination on each of the count[s].

Now, you swore that if you had a reasonable doubt. I mean a reasonable doubt on any relative point or material element or on the evidence or lack of it and that one or more of your fellow jurors questions you about it that you would be willing to give him or her what you believe is a fair and calm explanation for your position based upon the evidence and the lack of evidence.

Finally, you swore that no matter how you stood before the final determination and before making up your mind on the count, on any on[e] count, if you found some evidence that might indicate that you were wrong, that you would not hesitate to change your position.

Consequently, I'm going to ask you to go back into the jury room and make a further effort to reach a verdict. Go over the testimony of the witnesses sensibly, weight the evidence carefully, discuss it calmly, dispassionately. Listen to the views and arguments of your fellow jurors.

This is what I mean by deliberations. I stress that the verdict must be that of each individual jurors and not mere acquiescence in the conclusions of other jurors.

Please do not close your eyes or shut your minds. It may be that your fellow jurors recall some portion of the evidence that inadvertently you overlooked. This may or may not effect your decision in this case. Reason with each other, discuss the law and then apply the law as I have explained it to you.

Being under oath you must continue to deliberate until it is clear that the continuation of deliberations would no longer be warranted in this case. This does . . . not mean that a verdict must be reached, but if at all possible a verdict should be reached. But it does not [sic] mean that every effort should be made by you consistent with your obligation to arrive at [a] verdict and you should continue that process until either your reach a verdict or are satisfied that further deliberations would be fruitless.

In either event I ask you to keep me informed. I'm now going to ask you to go back into the jury room and attempt to come to such an agreement. if I can be of help to you or assistance to you please do not hesitate to send whatever requests you may wish concerning the trial.

The jury will now retire to the jury room to continue deliberations at 5:21.

(Tr. 875-78, emphasis added; see also Pet. ¶ 42.)

Immediately after this second Allen charge, defense counsel objected:

MR. SEGAL: So the record is clear, I'm going to move for a mistrial at this time based upon that note that the jury sent out. I think as the jury says further deliberations would be useless and I think anything at this hour is coercive and I would ask a mistrial be granted.

THE COURT: Well, counsel you should have made that application before I gave them the Allen charge.

MR. SEGAL: No matter what I'm making it now.

THE COURT: Now that I've given it I do not intend to give any further Allen charges.

The jury has been informed that they should continue until they . . . have reached a verdict or are satisfied that any further deliberations will be fruitless and that they are to advise me of what their conclusion is.

We will now wait for the next note from the jury which presumably will either be that they have reached a verdict or want some read back of testimony or that further deliberations will be fruitless.

MR. SEGAL: You are denying my application?

THE COURT: Yes.

(Tr. 878-79, emphasis added; see also Pet. ¶¶ 43-44.)

At 5:23 p.m., two minutes after resuming deliberations, the jury sent out a final note stating that they had reached a verdict. (Tr. 879-80.) The jury found Larrea guilty on both murder counts. (Tr. 880-81; see also Pet. ¶ 45.)

On March 21, 1990, Larrea was sentenced to two consecutive terms of fifteen years to life imprisonment. (Pet. ¶ 7.)

Direct State Appeal

On or about November 26, 1997, Larrea's retained appellate counsel, Philip B. Abramowitz, Esq., directly appealed to the First Department. (Dkt. No. 3: State Answer Ex. A: Larrea 1st Dep't Br.) Larrea's appellate brief claimed, inter alia, that under People v. Antommarchi, 80 N.Y.2d 247, 252, 590 N.Y.S.2d 33, 36 (1992), the second Allen charge violated Larrea's federal and state due process rights by requiring the hold-out juror to articulate concrete grounds for acquittal. (Larrea 1st Dep't Br. at 21-33.)

On June 11, 1998, the First Department unanimously affirmed Larrea's conviction, rejecting Larrea's Allen charge argument on procedural grounds and, in the alternative, on the merits:

The [trial] court properly exercised its discretion by refusing to declare a mistrial based on the jury's purported deadlock. . . . Defendant failed to preserve his remaining claims concerning the court's communications with the deliberating jury, each of which requires preservation (see, People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 650 N.E.2d 387 [1995]), and we decline to review them in the interest of justice. Were we to review them, we would find them to be without merit.

People v. Larrea, 251 A.D.2d 113, 114, 674 N.Y.S.2d 39, 39 (1st Dep't 1998). On August 20, 1998, the New York Court of Appeals denied leave to appeal. People v. Larrea, 92 N.Y.2d 900, 680 N.Y.S.2d 64 (1998). On March 22, 1999, the United States Supreme Court denied certiorari. Larrea v. New York, 526 U.S. 1025, 119 S.Ct. 1267 (1999).

State Collateral Proceedings

On February 15, 2000, still represented by Mr. Abramowitz, Larrea moved the trial court pursuant to C.P.L. § 440.10 to vacate his conviction, on the single ground that trial counsel rendered ineffective assistance by failing properly to object to the allegedly erroneous second Allen charge. (Dkt. No. 11: State Supp. Resp. Ex. D; see also Pet. ¶ 12.) On or about May 3, 2000, the trial court denied Larrea's § 440 motion. (Pet. ¶ 13 Ex. D.) First, the court held that under C.P.L. § 440.10(2)(c), Larrea waived the claim by not raising it on direct appeal, as the "sole basis for the alleged claim of ineffectiveness of counsel appears clearly in the record." (Pet. Ex. D: 5/3/00 Order at 2.) Second, the trial court denied the claim on the merits:

Moreover, upon review of the merits the court would deny the motion. While the right to effective assistance of counsel is guaranteed by both the federal and state constitutions, an unsuccessful result at trial does not automatically indicate ineffective representation. U.S. Const., 6th Amend; N.Y. Const., Art I, § 6. Generally, the question of effective representation "is satisfied when the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal the attorney provided meaningful representation." People v. Baldi, 54 N.Y.2d 137 (1981). Defendant has the burden to show that the representation was less than meaningful or that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984). Defendant has failed to satisfy this burden.

(Pet. Ex. D: 5/3/00 Order at 2.) On July 13, 2000, the First Department denied leave to appeal from the denial of Larrea's C.P.L. § 440 motion. (Pet. ¶ 14 Ex. E: 7/13/00 1st Dep't Certificate Denying Leave.)

On or about July 19, 2000, represented by his current retained counsel, Jason H. Sterne, Esq., Larrea petitioned the First Department for a writ of error coram nobis, arguing that Larrea's appellate counsel had rendered ineffective assistance by raising the ineffective assistance of trial counsel claim in a C.P.L. § 440 motion rather than on direct appeal. (Dkt. No. 3: State Answer Ex. D: Larrea Coram Nobis Pet.; see also Pet. ¶ 15.) On April 24, 2001, the First Department denied Larrea's coram nobis petition, without explanation other than a citation to People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988). (Pet. Ex. F: 4/24/01 1st Dep't Order; see also Pet. ¶ 16.)

Larrea's Federal Habeas Corpus Petition

On May 18, 2001, represented by Mr. Stern, Larrea filed his current federal habeas corpus petition alleging that: (1) the trial court violated Larrea's due process rights by giving an improper Allen charge (Pet. ¶¶ 47-57); (2) Larrea's trial counsel rendered ineffective assistance by not objecting to the Allen charge (Pet. ¶¶ 58-68); and (3) his appellate counsel rendered ineffective assistance by failing to raise on direct appeal (as opposed to a C.P.L. § 440 motion) an ineffective assistance of trial counsel claim (Pet. ¶¶ 69-78).³

3 Larrea had filed an earlier habeas corpus petition in this district on or about January 9, 2001. (01 Civ. 2398, Dkt. No. 1.) At Larrea's request, the Court dismissed that petition without prejudice to allow Larrea to exhaust his state remedies. (01 Civ. 2398, Dkt. No. 8.) The State has not challenged the timeliness of Larrea's current habeas petition (see generally Dkt. No. 4: State Br.), which was filed in the United States District Court for the Western District of New York and transferred to this Court.

ANALYSIS

I. LARREA'S DUE PROCESS AND INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS ARE BARRED FROM HABEAS REVIEW BECAUSE THEY WERE DENIED ON ADEQUATE AND INDEPENDENT STATE LAW GROUNDS A. Larrea's Due Process Claim

Larrea asserts that the trial court's second Allen charge violated his due process rights by requiring a hold-out juror to articulate concrete reasons for acquittal, thus impermissibly shifting the burden of proof. (Pet. ¶¶ 47-57.) In support, Larrea cites a number of state court decisions issued after Larrea's 1990 trial, principally People v. Antommarchi, 80 N.Y.2d 247, 252, 590 N.Y.S.2d 33, 36 (1992), which reversed convictions based on similar jury charges. (Pet. ¶¶ 47-57.)

It is well settled, however, that errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law'. . . . Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."). Accordingly, in order to obtain habeas relief, Larrea may not rely solely on state law grounds (i.e., Antommarchi), but must demonstrate that the jury charge at issue violated federal law. See also, e.g., Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *9 (S.D.N.Y. May 25, 2000) (Peck, M.J.) ("Antommarchi is a state decision, not controlling as to federal constitutional questions . . .").⁴

4 See also, e.g., Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at * 15 n. 24 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v. Demskie, 75 F. Supp.2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd, 234 F.3d 1262 (2d Cir. 2000); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4-5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).

Larrea's federal due process claim,⁵ that the second Allen charge shifted the burden of proof by requiring jurors to articulate grounds for acquittal, was raised and exhausted in state court. (See Dkt. No. 3: State Ans. Ex. A: Larrea 1st Dep't Br. at 31-32.)⁶ The First Department, however, deemed the claim procedurally barred because of trial counsel's failure to specifically object: "Defendant failed to preserve his remaining claims concerning the court's communications with the deliberating jury, each of which requires preservation . . . ." People v. Larrea, 251 A.D.2d 113, 114, 674 N.Y.S.2d 39, 39 (1st Dep't 1998) (citing People v. Starling, 85 N.Y.2d 509, 516, 626 N.Y.S.2d 729, 733 (1995) ("counsel's silence at a time when any error by the court could have been obviated by timely objection renders the claim unpreserved and unreviewable")). The First Department then declined to review the claim "in the interest of justice," while stating that if it were to review the claim it would find it to be without merit. People v. Larrea, 251 A.D.2d at 114, 674 N.Y.S.2d at 39.

5 In addition to the "articulation" due process claim discussed in text, Larrea's habeas petition, which despite being submitted by counsel was not a model of clarity, also appeared to raise a second due process claim: that the First Department violated Larrea's federal due process rights by failing to apply retroactively governing New York state law as embodied in People v. Antommarchi. (See Pet. ¶¶ 56-57.) Because Larrea's retroactivity due process claim did not appear to have been exhausted in state court, this Court ordered the parties to address the exhaustion issue. (Dkt. No. 10: 1/18/02 Order.) See Acosta v. Artuz, 221 F.3d 117, 124-26 (2d Cir. 2000) (vacating dismissal of habeas petition because district court, in raising AEDPA untimeliness defense sua sponte, failed to give petitioner notice and an opportunity to be heard). Petitioner's counsel responded: "Because Petitioner never intended to raise a claim based on [retroactivity] grounds, and because the claim necessarily contradicts Petitioner's position that the Appellate Division did not address the Antommarchi claim on the merits, Petitioner has no objection to dismissal of the [potential habeas] retroactivity claim on procedural grounds." (Dkt. No. 12: 1/31/02 Sterne Letter to Court: see also Dkt. No. 11: State Supp. Response at 1-3.) Accordingly, Larrea has expressly waived any due process retroactivity claim, and the Court will not consider it further.

6 Both Larrea's habeas petition and his brief to the First Department appeared to ignore the federal aspect of this claim, asserting merely that the charge violated Antommarchi and its state court progeny. (Pet. ¶¶ 47-57; Larrea 1st Dep't Br. at 21-33.) Nevertheless, becauseAntommarchi held that an erroneous Allen charge "violated the Due Process Clauses of both the State and Federal Constitutions," 80 N.Y.2d at 252, 590 N.Y.S.2d at 36, Larrea's repeated citations to Antommarchi in his habeas petition will be construed as a claim that the Allen charge violated Larrea's federal due process rights. Cf. Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982) (en banc) (habeas petitioner may exhaust federal constitutional claim in state court by relying on "state cases employing constitutional analysis in like fact situations"), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984).

1. The "Adequate and Independent State Ground Doctrine": Background ⁷

7 For additional decisions authored by this Judge discussing the "adequate and independent state ground" doctrine in language substantially similar to that in this section of the Report Recommendation, see Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20-21 (S.D.N.Y. May 15, 2002) (Berman D.J. Peck, M.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *89 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.);Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *4 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (April 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N Y Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.);Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), see 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (BaerD.J. Peck, M.J.); Torres v. Irvin 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N Y June 19, 1996) (Cote, D.J.).

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); see also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S.Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Murray v. Carrier, 477 U.S. 478, 485-88, 496, 106 S.Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999); Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997);Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent state law grounds doctrine], the last state court to render judgment must 'clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9; accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. at 739, 111 S.Ct. at 2559. Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found to be too ambiguous to preclude habeas review, see, e.g., Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1991), here the First Department explicitly stated that it found Larrea's claim to be unpreserved, and the fact that the First Department also stated the conclusion it would reach "[w]ere we to review" the claim does not change the result. See, e.g., Fama v. Commissioner of Correctional Services, 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("where a state court says that a claim is "not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 (state decision which denied claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice");Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds).⁸ Thus, the First Department's decision rested on an independent state procedural ground.⁹ See, e.g., Garcia v. Lewis, 188 F.3d at 77-82 ("There is no question that the Appellate Division's explicit invocation of the procedural bar constitutes an 'independent' state ground, . . . even though the court spoke to the merits of [petitioner's] claim in an alternative holding . . .

8 See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10; Marbury v. Greiner, 2001 WL 910772 at *9 n. 9 ( cases cited therein); Simmons v. Mazzuca, 2001 WL 537086 at * 10 (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Jones v. Duncan, 2001 WL 322190 at *5 (same); Yeung v. Artuz, 2000 WL 145103 at *10 (same); Cruz v. Greiner, 1999 WL 1043961 at *1243 (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review); Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irvin, 33 F. Supp.2d at 274 (adequate and independent ground even though First Department "went on to dismiss the claim on the merits"); Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 (E.D.N.Y. 1998) (claim that Appellate Division held to be unpreserved for appellate review not cognizable on habeas even though Appellate Division found, in an alternative holding, that the prosecutor's challenged remarks constituted a fair response to defense counsel's summation).

9 The New York Court of Appeals denied Larrea's application for leave to appeal without opinion, People v. Larrea, 92 N.Y.2d 900, 680 N.Y.S.2d 64 (1998), and on March 22, 1999, the United States Supreme Court deniedcertiorari, Larrea v. New York, 526 U.S. 1025, 119 S.Ct. 1267 (1999). The Supreme Court held in Ylst v. Nunnemaker, 501 U.S. 797, 111 S.Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S.Ct. at 2594. Larrea has presented no facts to rebut that presumption here.

2. Was the First Department's Procedural Ground "Adequate"?

The Court next considers whether the First Department's procedural basis was "adequate."

Under New York law, in order to preserve for appellate review his claim that the jury charge was erroneous, Larrea's trial counsel was required to object to the charge at trial. See C.P.L. § 470.05(2) ¹⁰;People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 909 (1990); People v. Jackson, 76 N.Y.2d 908, 909, 563 N.Y.S.2d 42, 43 (1990); People v. Cadorette, 56 N.Y.2d 1007, 1009, 453 N.Y.S.2d 638, 638 (1982); People v. Mallory, 258 A.D.2d 343, 343, 685 N.Y.S.2d 663, 663 (1st Dep't), appeal denied, 93 N.Y.2d 876, 689 N.Y.S.2d 438 (1999); People v. Charleston, 56 N.Y.2d 886, 887-88, 453 N.Y.S.2d 399, 400 (1982); see also, e.g., Lugo v. Kuhlmann, 68 F. Supp.2d 347, 372-73 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.). Larrea does not dispute that his counsel failed to appropriately object at trial to the final Allen charge, and thus failed to preserve the alleged error for appeal.¹¹ (E.g., Pet. ¶¶ 55, 59.) The Second Circuit has generally held that failure to object at trial when required by New York's contemporaneous objection rule, C.P.L. § 470.05, is an adequate state ground.¹²

10 N.Y. C.P.L. § 470.05(2) provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

11 Although Larrea's trial counsel did object to the court's finalAllen charge, he did not object on the specific ground that the charge shifted the burden of proof. (Tr. 878-79; see page 8 above.) See, e.g., People v. Jackson, 76 N.Y.2d 908, 909, 563 N.Y.S.2d 42, 43 (1990) (objection to jury charge preserves the objection only on the specific ground stated at trial, and does not preserve other possible objections to the same charge); People v. Melendez, 269 A.D.2d 292, 292-93, 704 N.Y.S.2d 213, 215 (1st Dep't) ("Since defendant's challenge to the court's Allen charge . . . was on different grounds, his present claim that it obligated jurors favoring acquittal to articulate the bases for their doubts and thereby shifted the burden of proof . . . is unpreserved and we decline to review it in the interest of justice."), appeal denied, 95 N.Y.2d 868, 715 N.Y.S.2d 223 (2000).

12 See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86, 90, 97 S.Ct. 2497, 2506-08 (1977) (contemporaneous objection rule is an adequate and independent state ground); Murray v. Carrier, 477 U.S. 478, 485-92, 497, 106 S.Ct. 2639, 2644-48, 2650 (1986) (same); Garcia v. Lewis, 188 F.3d 71, 79 (2d Cir. 1999) ("we have observed and deferred to New York's consistent application of its contemporaneous objection rules" (citingBossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994) (respecting state court's application of C.P.L. § 470.05[2] as adequate bar to federal habeas review), Fernandez v. Leonardo, 931 F.2d 214, 216 (2d Cir.) (noting that failure to object at trial constitutes adequate procedural default under C.P.L. § 470.05(2)), cert. denied, 502 U.S. 883, 112 S.Ct. 236 (1991)); Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996) (failure to object constituted adequate and independent state ground);Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (violation of New York's contemporaneous objection rule is an adequate and independent state ground); Jones v. Duncan, 162 F. Supp.2d 204, 213 n. 12 (S.D.N.Y. 2001) (Peck, M.J.); (collecting cases); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *11 (S.D.N.Y. Aug. 13, 2001); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *11 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *6 (S.D.N Y Apr. 3, 2001) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *9 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.);Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Davis v. Miller, 99 Civ. 2423, 1999 WL 1125055 at *45 (S.D.N.Y. Dec. 8, 1999); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *14 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *6 (S.D.N.Y. June 9, 1999) (Peck, M.J.),aff'd, 205 F.3d 1324 (2d Cir. 2000); Torres v. Irvin, 33 F. Supp.2d 257, 263-64, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.) (petitioner's failure to appropriately object to judge's actions at trial constituted adequate and independent ground barring judicial misconduct claim from habeas review); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.) ("Failure to object at trial is an independent and adequate state procedural bar."); Liner v. Keane, 1996 WL 33990 at *7; Jamison v. Smith, 94 Civ. 3747, 1995 WL 468279 at *2 (E.D.N.Y. July 26, 1995) ("Courts in this circuit have consistently held that the failure to object contemporaneously . . . constitutes an adequate and independent basis for barring habeas review."); Anderson v. Senkowski, No. CV-92-1007, 1992 WL 225576 at *4 (E.D.N.Y. Sept. 3, 1992), aff'd mem., 992 F.2d 320 (2d Cir. 1993).

The question, however, is not whether New York "generally" applies the contemporaneous objection rule, but whether the rule has been applied evenhandedly to all claims similar to Larrea's claim. See, e.g., Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426 (1982) ("Our decisions, however, stress that a state procedural ground is not 'adequate' unless the procedural rule is 'strictly or regularly followed.' . . . State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims."); Garcia v. Lewis, 188 F.3d at 79 (Although "New York's contemporaneous objection rule is not rendered 'inadequate' on account of novelty or sporadic application, . . . [petitioner] does not object to New York's contemporaneous objection rule generally, but rather contends that the rule was misapplied in his case in particular.").

Garcia v. Lewis is the leading Second Circuit case on this issue, and is worth quoting at length:

2. Standard for Determining the Adequacy of a State Ground of Decision

The Supreme Court repeatedly has held that "'the question of when and how defaults in compliance with state procedural rules can preclude . . . consideration of a federal question is itself a federal question.'"

"State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims." Accordingly, a procedural bar will be deemed "adequate" only if it is based on a rule that is "firmly established and regularly followed" by the state in question. When a federal court finds that the rule is inadequate under this test the rule should not operate to bar federal review. Nonetheless, the principles of comity that drive the doctrine counsel that a federal court that deems a state procedural rule inadequate should not reach that conclusion "lightly or without clear support in state law."

Our responsibility to ensure that the state rule is "adequate" obligates us to examine the basis for and application of state law. In making that determination, however, some degree of deference is required. The Supreme Court has suggested that in determining the adequacy of a state procedural bar that precludes consideration of a federal claim, we should inquire whether there was a "fair or substantial basis" in state law for the default. To this end, when "'there can be no pretence that the [state] Court adopted its view in order to evade a constitutional issue, and the case has been decided upon grounds that have no relation to any federal question, this Court accepts the decision whether right or wrong.'"

In line with these cases, we have deferred to findings of procedural default as long as they are supported by a "fair or substantial basis" in state law.

Accordingly we will deem a state court's finding of procedural default "adequate" if there is a "fair and substantial" basis in state law for the state court's determination.

3. Was There a "Fair or Substantial Basis" in State Law for Application of the Procedural Bar in Garcia's Case?

Here, the Appellate Division applied New York's codified contemporaneous objection rule, which preserves for review only those questions of law as to which "a protest . . . was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." N.Y. C.P.L. § 470.05. The New York Court of Appeals has explained that this rule "require[s], at the very least, that any matter which a party wishes the appellate court to decide have been brought to the attention of the trial court at a time and in a way that gave the latter the opportunity to remedy the problem and thereby avert reversible error." As another New York Court has explained, "a question of law will be considered preserved for appellate review when it is interjected at the fact-finding level in such a manner and at such a time as to fairly apprise the court and the opposing party of the nature and scope of the matter contested."

The Supreme Court has recognized that contemporaneous objection rules of this kind serve a legitimate state interest.

We, too, have recognized the propriety of such rules, noting that "[i]f a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with . . . a 'contemporaneous objection' rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review." As a result, we have observed and deferred to New York's consistent application of its contemporaneous objection rules. Accordingly, New York's contemporaneous objection rule is not rendered "inadequate" on account of novelty or sporadic application, as sometimes is the case.

In this case, however, Garcia does not object to New York's contemporaneous objection rule generally, but rather contends that the rule was misapplied in his case in particular. This, he contends, demonstrates that New York does not apply its rule "evenhandedly to all similar claims" within the meaning of Hathorn, 457 U.S. at 263, 102 S.Ct. 2421.

Garcia v. Lewis, 188 F.3d at 77-79 (citations omitted).

Here, as in Garcia v. Lewis, the C.P.L. § 470.05(2) contemporaneous objection rule clearly is an independent and adequate procedural rule generally. (See also cases cited in fn. 12 above.) However, the contemporaneous objection rule also is intertwined with the Appellate Division's discretionary power. New York law provides the Appellate Division with the discretionary power to rule on a forfeited claim "in the interest of justice." C.P.L. §§ 470.15(3)(c), 470.15 (6)(a).¹³ In four other reported decisions, the Appellate Division was asked to review an unpreserved objection to an Allen charge similar to the offending charge given in this case, and in all four cases the Appellate Division reversed the conviction in the "interest of justice."People v. Travis OO, 237 A.D.2d 646, 647-48, 654 N.Y.S.2d 467, 468 (3d Dep't 1997); People v. Arce, 215 A.D.2d 277, 278, 627 N.Y.S.2d 15, 15 (1st Dep't 1995), appeal denied, 91 N.Y.2d 835, 667 N.Y.S.2d 689 (1997);People v. Jones, 216 A.D.2d 324, 325, 627 N.Y.S.2d 778, 779 (2d Dep't 1995); People v. Allan, 192 A.D.2d 433, 596 N.Y.S.2d 793 (2d Dep't 1993). Accordingly, Larrea could have asserted in his habeas petition that his trial counsel's failure to object to the Allen charge did not constitute an "adequate" state ground for denying relief, because the Appellate Division failed to apply the contemporaneous objection rule "evenhandedly to all similar claims." See, e.g., Wedra v. Lefevre, 988 F.2d 334, 339-40 (2d Cir. 1993) ("We are not convinced that simply because New York law allows some discretion to be exercised in the granting of extensions that a dismissal on the basis of untimeliness does not constitute an adequate procedural bar. Adequacy only requires application of the rule evenhandedly to all 'similar claims.'" Procedural bar found to be adequate because cases in which New York courts had granted a discretionary exception were factually distinguishable.);McLaurin v. Kelly, No. 94-CV-1560, 1998 WL 146282 at *6 (N.D.N.Y. Mar. 27, 1998) (Pooler, D.J.) (The Appellate Division's "application of the contemporaneous objection rule was thus atypical because New York often allows claims like petitioner's to be raised for the first time on appeal. . . . Consequently, its finding of procedural default does not bar federal habeas review of petitioner's claim."); Gagne v. Coughlin, 995 F. Supp. 268, 275-77 (E.D.N.Y. 1996) (analyzing whether discretionary New York procedural bar was applied consistently enough to satisfy adequacy standard), aff'd, 129 F.3d 254 (2d Cir. 1997).

13 C.P.L. § 470.15, entitled "Determination of appeals by intermediate appellate courts," provides in relevant part:

3. A reversal or a modification of a judgment, sentence or order must be based upon a determination made:

(a) Upon the law; or
(b) Upon the facts; or
(c) As a matter of discretion in the interest of justice; or
(d) Upon any two or all three of the bases specified in paragraphs (a), (b) and (c).

6. The kinds of determinations of reversal or modification deemed to be made as a matter of discretion in the interest of justice include, but are not limited to, the following:

(a) That an error or defect occurring at a trial resulting in a judgment, which error or defect was not duly protested at trial as prescribed in subdivision two of section 470.05 so as to present a question of law, deprived the defendant of a fair trial . . . .

Larrea, however, did not raise the "adequacy" issue either in his petition or his reply brief (Dkt. No. 6). Although it appears that the Second Circuit has not decided which party bears the burden of proof as to adequacy,¹⁴ the best-reasoned position is that:

14 In Garcia v. Lewis, the Second Circuit stated: "Our responsibility to ensure that the state rule is 'adequate' obligates us to examine the basis for and application of state law." 188 F.3d at 77. This implies that the federal court must address the issue sua sponte once a state default has been alleged, although the petitioner in Garcia seems to have raised the issue. See id. at 79. By contrast, in Wedra v. Lefevre, the Second Circuit implied that the petitioner had the burden of proving inadequacy. 988 F.2d at 340 (Petitioner "has not sufficiently demonstrated to us that New York courts do not strictly and regularly apply these rules evenhandedly to similar claims to allow us to find that the procedural default in question was not an adequate state ground.");see also Ranta v. Bennett, No. 97 Civ. 2169, 2000 WL 1100082 at *33 (E.D.N.Y. May 23, 2000) ("Petitioner's failure affirmatively to demonstrate that the Appellate Division's application of the contemporaneous objection rule to his case was inconsistent with prevailing New York law may fairly be said to end the inquiry, . . . particularly in light of the Second Circuit's affirmative recognition of the consistency of the New York Court's application of the contemporaneous objection rule under C.P.L. § 470.05[2].").

Once the state pleads the affirmative defense of an independent and adequate state procedural bar, the burden to place that defense in issue shifts to the petitioner. This must be done, at a minimum, by specific allegations by the petitioner as to the inadequacy of the state procedure. The scope of the state's burden of proof thereafter will be measured by the specific claims of inadequacy put forth by the petitioner.

Hooks v. Ward, 184 F.3d 1206, 1217 (10th Cir. 1999); accord Smallwood v. Gibson, 191 F.3d 1257, 1268 (10th Cir. 1999), cert. denied, 531 U.S. 833, 121 S.Ct. 88 (2000).¹⁵ Although Larrea cited People v. Arce andPeople v. Jones, and noted that Arce reversed the conviction in the interest of justice despite counsel's failure to preserve the error at trial (Pet. ¶¶ 49-51; Dkt. No. 6: Larrea Reply Br. at 10), nowhere did Larrea assert that because the procedural bar was inconsistently applied, it was not an "adequate" state ground barring relief, even in his reply to the State's brief which had raised the independent and adequate procedural bar argument. (See Larrea Reply Br. at 10.) Where, as here, petitioner is represented by counsel, this Court will not infer arguments that have not been expressly made. Larrea has thus waived the adequacy issue.

15 By requiring that the state initially plead the default, the Tenth Circuit recognized that "state court procedural default . . . is an affirmative defense, and that the state is 'obligated to raise procedural default as a defense or lose the right to assert the defense thereafter.'" Hooks v. Ward, 184 F.3d at 1216 (quoting Gray v. Netherland, 518 U.S. 152, 165-66, 116 S.Ct. 2074, 2082 (1996)). Once a default has been pleaded, however, it makes sense to require the petitioner to raise the adequacy issue (at least where, as here, the habeas petitioner is represented by counsel), as it would be unduly burdensome to require the state (or the Court, sua sponte) to conduct an exhaustive survey of whether all similar litigants were treated ""consistently," where petitioner has not even disputed the issue.
Courts that place the burden entirely on the petitioner to prove "inadequacy" effectively ignore the state's obligation to raise and preserve procedural default as a defense. See e.g., Tarrer v. Wood, No. 99-35635, 229 F.3d 1159 (table), 2000 WL 890985 at *2 n. 8 (9th Cir. 2000) ("We note that the petitioner bears the burden of demonstrating that a procedural bar has not been consistently applied."); Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996) ("The burden is on [petitioner] to establish that the Mississippi procedural bar rule was not strictly and regularly followed at the time of his direct appeal."); Lott v. Hargett, 80 F.3d 161, 165 (5th Cir. 1996) ("A state procedural rule enjoys a presumption of adequacy when the state court expressly relies on it in deciding not to review a claim for collateral relief."); Tillman v. Cook, 25 F. Supp.2d 1245, 1274 (D. Utah 1998) ("The burden is on the petitioner to show uneven application of the state rule."), aff'd on other grounds, 215 F.3d 1116 (10th Cir.), cert. denied, 531 U.S. 1055, 121 S.Ct. 664 (2000). In contrast, courts that place no burden on the petitioner effectively ignore the inefficiency of requiring the state to prove "adequacy" where the issue is not even in dispute. See, e.g., Coleman v. Calderon, No. C 89-1906, 1996 WL 83882 at *24 (N.D. Cal. Feb. 20, 1996) (although describing the burden issue as unclear, placing on the state the burden of proving "state procedural rule is adequate" in death penalty case), aff'd on other grounds, 150 F.3d 1105 (9th Cir.),rev'd on other grounds, 525 U.S. 141, 119 S.Ct. 500 (1998); Bell v. Prunty, No. C-94-0298, 1995 WL 648403 at *5 (N.D. Cal. Oct. 26, 1995) (State has burden of proving consistency of procedural bar, as the "Supreme Court has placed the burden of both pleading and proving a procedural default defense on the state."); Karis v. Vasquez, 828 F. Supp. 1449, 1463 n. 21 (E.D. Cal. 1993) (same), aff'd, 283 F.3d 1117 (9th Cir. 2002).

Finally, even if the burden were on the State, the cases that reversed erroneous Allen charges after Antommarchi are distinguishable. In bothPeople v. Travis OO, 237 A.D.2d at 646, 654 N.Y.S.2d at 467, and People v. Arce, 215 A.D.2d at 277-78, 627 N.Y.S.2d at 15, the defendants' trials had occurred after the New York Court of Appeals rendered itsAntommarchi decision. A reversal "in the interest of justice" in that situation is an exercise of the appellate court's supervisory authority over trial judges, who should know to follow Court of Appeals' decisions. Larrea's trial, of course, occurred two years beforeAntommarchi was announced. In People v. Jones, trial occurred beforeAntommarchi, but the Second Department was reversing because of an objected to error in the instructions on intent, and then stated that "[r]eversal of the defendant's conviction is also warranted" because of the Allen charge error, which it addressed "in the interest of justice." 216 A.D.2d at 324-25, 627 N.Y.S.2d at 778. Similarly, in People v. Allan, where trial occurred before Antommarchi, the First Department reversed in the interest of justice because of the "cumulative effect of all the errors in the case," of which the erroneous Allen charge was one of the last discussed. People v. Allan, 192 A.D.2d at 434-35, 596 N.Y.S.2d at 794.¹⁶

16 Larrea also cited People v. Diaz, 245 A.D.2d 526, 666 N.Y.S.2d 684 (2d Dep't 1997), and People v. Roche, 239 A.D.2d 270, 658 N.Y.S.2d 16 (1st Dep't), appeal denied, 91 N.Y.2d 879, 668 N.Y.S.2d 577 (1997). Diaz's trial occurred after Antommarchi, and the Second Department reversed "on the law" (rather than "in the interest of justice") meaning that there had been an objection to the charge. People v. Diaz, 245 A.D.2d at 527, 666 N.Y.S.2d at 684. Roche's trial also was afterAntommarchi, defense counsel specifically objected to the Allen charge, and the First Department reversed "on the law." People v. Roche, 239 A.D.2d at 270-71, 658 N.Y.S.2d at 16-17.

Thus, even if Larrea has not waived the adequacy argument, the cases cited by Larrea (or found by the Court) are distinguishable so that Larrea has not been treated differently by the State courts from similarly situated defendants. In fact, this Court has not found a single reported case where the Appellate Division reversed a pre-Antommarchi trial "in the interest of justice" because of an unobjected to Allen charge error, unless other trial errors required reversal. The Court therefore finds that there is a fair or substantial basis in New York law for the contemporaneous objection rule and the interest of justice appeals exception to that rule. Accordingly, Larrea's challenge to theAllen charge is barred by an independent and adequate state procedural ground.

3. "Cause and Prejudice"

Because there is an independent and adequate finding by the First Department that Larrea procedurally defaulted on his due process challenge to the trial court's second Allen charge, Larrea would have to show in his habeas petition "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565 (1991).¹⁷

17 See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence"); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *11 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.);Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *11 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 00 Civ. 3307, 2001 WL 322190 at *6 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145-46 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *6 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, 205 F.3d 1324 (2d Cir. 2000); Torres v. Irvin, 33 F. Supp.2d 257, 264, 274 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.);Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1998); Farrington v. Senkowski, 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998) ("The miscarriage of justice exception applies where a petitioner is 'actually innocent' of the crime of which he was convicted or the penalty which was imposed."), aff'd, 214 F.3d 237 (2d Cir. 2000).

Larrea implicitly appears to assert that the ineffectiveness of his trial counsel, in not objecting to the Allen charge, supplies the "cause" and "prejudice" to avoid the procedural default. (See Pet. ¶¶ 58-78.) 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. Donelly, 99 Civ. 11306, 2000 WL 559548 at *4 n. 5 (S.D.N.Y. Apr. 13, 2000) (Rakoff, J. Peck, M.J.) (collecting cases). "[T]he exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. at 489, 106 S.Ct. at 2646; Reyes v. Keane, 118 F.3d at 139-40; Aramas v. Donelly, 2000 WL 559548 at *4 n. 5 (collecting cases). Larrea presented an independent ineffective assistance of trial counsel claim to the state court through his C.P.L. § 440 motion. (See page 10 above.)

As explained in the next section, however, Larrea's independent ineffective assistance of trial counsel claim also is procedurally barred. Accordingly, the ineffectiveness of his trial counsel may not serve as the "cause" for the procedural default of his due process claim, which is therefore barred from habeas review.

B. Larrea's Ineffective Assistance of Trial Counsel Claim

Larrea has asserted that the ineffectiveness of his trial counsel serves as an independent claim for relief (Pet. ¶¶ 58-68), and, implicitly, as "cause" to erase procedural default for the failure to object to the Allen charge at trial (see Point I.A.3, above). Larrea, however, is procedurally barred from raising the ineffective assistance of trial counsel claim.

After Larrea's direct appeal, he moved the trial court pursuant to C.P.L. § 440.10 to vacate his conviction on the ground that trial counsel rendered ineffective assistance by not properly objecting to theAllen charge. (Pet. ¶ 12 Ex. D; see page 10 above.) The trial court denied Larrea's C.P.L. § 440 motion, holding first that under C.P.L. § 440.10(2)(c), Larrea waived the claim by not raising it on direct appeal, as the "sole basis for the alleged claim of ineffectiveness of counsel appears clearly in the record," and second, denied the claim on the merits. (Pet. Ex. D.) The First Department summarily denied permission to appeal from the denial of Larrea's C.P.L. § 440 motion. (Pet. Ex. E.)

New York law bars consideration via collateral attack of an issue that could have been raised on direct appeal. C.P.L. § 440.10(2)(c);see, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 505 (1986); People v. Byrdsong, 234 A.D.2d 468, 469, 651 N.Y.S.2d 903, 903 (2d Dep't 1996) ("Pursuant to C.P.L. 440.10(2)(c) a court must deny a post judgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on a direct appeal and the defendant unjustifiably failed to raise the claim on appeal."), appeal denied, 89 N.Y.2d 1033, 659 N.Y.S.2d 863 (1997); People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 935 (1st Dep't) ("defendant's failure to present his constitutional attack upon his conviction after trial in the course of his direct appeal forecloses any consideration of it [in a § 440.10 proceeding]"), appeal denied, 76 N.Y.2d 796, 559 N.Y.S.2d 1001 (1990).

The Second Circuit has held C.P.L. § 440.10(2)(c) to be an adequate and independent state ground. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 92-93 (2d Cir. 2001); Ellison v. Keane, No. 98-2742, 201 F.3d 431 (table) 1999 WL 1212485 at * 1-2 (2d Cir. Dec. 15, 1999);Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Arce v. Smith, 889 F.2d 1271, 1272-73 (2d Cir. 1989), cert. denied, 495 U.S. 937, 110 S.Ct. 2185 (1990).¹⁸

18 Accord, e.g., Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *20 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 (S.D.N Y Aug. 2, 2001) (Peck, M.J.); Lou v. Mantello, No. 98-CV-5542, 2001 WL 1152817 at *8 (E.D.N.Y. Sept. 25, 2001); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at *2 (S.D.N.Y. May 7, 1997); Wells v. LaFavre, 96 Civ. 3417, 1996 WL 692003 at *3 (S.D.N Y Dec. 2, 1996).

Thus, Larrea's ineffective trial counsel claim is barred from habeas review unless he can show "cause and prejudice." (See cases cited at page 28 above.) Larrea asserts that the ineffectiveness of his appellate counsel provides the "cause" to excuse the procedural default of his claim for ineffective assistance of trial counsel. (Pet. ¶¶ 69-78.) Because, however, Larrea's independent ineffective appellate counsel claim is meritless (see Point II.C, below), 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) (because petitioner's claim for ineffective assistance of appellate counsel was meritless, that claim could not serve as the cause to excuse the procedural default of petitioner's claims for ineffective assistance of trial counsel).

II. THE FIRST DEPARTMENT'S DENIAL OF LARREA'S INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM WAS NOT AN UNREASONABLE APPLICATION OF THE STRICKLAND V. WASHINGTON STANDARD A. The AEDPA Review Standard ¹⁹

19 For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N Y Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); 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.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).

Before the Court can determine whether Larrea is entitled to federal habeas relief on his ineffective appellate counsel claim, 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 1519.²⁰ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.²¹ "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, 2002 WL 769444 at *5.

20 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).

21 Accord, e.g., Kennaugh v. Miller, No. 01-2281, 2002 WL 769444 at *4 (2d Cir. Apr. 12, 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 1519-20.²²

22 Accord, e.g., Kennaugh v. Miller, 2002 WL 769444 at *4; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. 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 1521.²³

23 Accord, e.g., 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)); see also, e.g., 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, 2002 WL 769444 at *7.

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., Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 2002);Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).²⁴ 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).

24 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, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.

In denying Larrea's application for coram nobis relief regarding his claim for ineffective assistance of appellate counsel, the First Department offered no explanation other than a citation to People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987),appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988). (Pet. Ex. F.) The cited portion of De La Hoz states that, in light of the "ever burgeoning number of applications which raise a claim of ineffective assistance of appellate counsel," the "burden lies with those raising the issue to rebut the presumption that counsel has been effective. The mere existence of an unraised issue will not suffice. A defendant must show that had the issue been raised a greater likelihood would exist that the judgment would have been reversed, or at least, modified." People v. De La Hoz, 131 A.D.2d at 158, 520 N.Y.S.2d at 388. In light of the First Department's substantive, albeit summary, ground (via citation to De La Hoz) for denying Larrea's petition, this Court concludes that the First Department adjudicated Larrea's ineffective appellate counsel claims "on the merits," and therefore that the deferential AEDPA review standards apply. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 87, 94 (2d Cir. 2001) (summary coram nobis decision denying ineffective appellate counsel claim considered an adjudication on the merits because no indication "that the claims were decided on anything but substantive grounds"); Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (same); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *8 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.) (same); Shaw v. Artuz, 99 Civ. 9754, 2001 WL 1301735 at *6 (S.D.N.Y. Oct. 19, 2001) (same).

B. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ²⁵

25 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 Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at * 15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001); 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.

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."

Id. at 689, 104 S.Ct. at 2065 (citation omitted); accord, e.g., 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 2068.²⁶

26 See also, e.g., 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 2069.²⁷

27 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 2066.²⁸

28 See also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to "second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (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).

The Strickland test applies to appellate as well as trial counsel.See, e.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764.²⁹ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court.³⁰ E.g.,Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34; Rivera v. Duncan, 2001 WL 1580240 at *10.

29 Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 319; McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d at 533; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).
For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of appellate counsel, in language substantially similar to the balance of this section of this Report Recommendation, see Rivera v. Duncan, 2001 WL 1580240 at *10;Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 277;Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. Peck, M.J.).

30 Arguably, although this Court must apply the federal standard to the ineffective appellate counsel claims, it should evaluate the underlying trial counsel's performance under the state standard for ineffective counsel. See People v. Henry, 95 N.Y.2d 563, 565-66, 721 N.Y.S.2d 577, 578-79 (2000) (New York law rejects Strickland standard in favor of "meaningful representation" standard). The question is, after all, whether Larrea's appellate counsel erred by failing to appeal in state court the ineffective trial counsel claim. In other words, this Court should determine whether an appeal on grounds of ineffective trial counsel would have succeeded before the New York Court of Appeals under that court's standards. "The federal constitutional right to effective assistance of counsel may be violated by an attorney's failure to raise a meritorious state law claim or defense." Claudio v. Scully, 982 F.2d at 803-05 n. 5; see also Mayo v. Henderson, 13 F.3d at 533-36 (appellate counsel rendered ineffective assistance under Strickland by not raising argument based on state disclosure rule in state appellate court).
Nevertheless, in adjudicating a claim of ineffective state appellate counsel predicated on ineffective trial counsel, the Second Circuit recently applied the Strickland standard to both trial and appellate counsel. See Aparicio v. Artuz, 269 F.3d at 95, 99-100 (citing 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. Javino, 960 F.2d 1137, 1145 (2d Cir.), cert. denied, 506 U.S. 979, 113 S.Ct. 477 (1992), for theStrickland standard applicable to trial counsel); see also, e.g., Wright v. Duncan, 00 CV 530, 2001 WL 761193 at *4 (E.D.N.Y. July 5, 2001) (habeas court dismissed ineffective trial counsel claims underStrickland standard, and dismissed independent claim of ineffective appellate counsel because based on ineffective trial counsel claims);Flores v. Keane, 94 Civ. 5096, 2001 WL669152 at *8-10 (S.D.N.Y. June 13, 2001) (habeas court dismissed claim for ineffective appellate counsel predicated on failure to raise ineffective trial counsel claim, because trial counsel was not ineffective under Strickland standard); Franza v. Stinson, 58 F. Supp.2d at 148-51 (where petitioner asserted ineffective assistance of appellate counsel based on failure to appeal claim of ineffective trial counsel, habeas court analyzed predicate ineffective trial counsel claim under Strickland standard); Geraci v. Senkowski, 23 F. Supp.2d 246, 254-55 (E.D.N.Y. 1998) ("petitioner's claim that his trial counsel rendered ineffective assistance of counsel by failing to call [a witness] is without merit; it follows that his claim that his appellate counsel rendered ineffective assistance by failing to raise the [ineffective trial counsel] issue on appeal is also meritless."), aff'd, 211 F.3d 6 (2d Cir.), cert. denied, 531 U.S. 1018, 121 S.Ct. 581 (2000); but see Shaw v. Artuz, 99 Civ. 9754, 2001 WL 1301735 at *7 (S.D.N.Y. Oct 19, 2001) (analyzing ineffective appellate counsel claim underStrickland, but appearing to analyze predicate ineffective trial counsel claim under state's "meaningful representation" standard); Hernandez v. Edwards, 98 Civ. 6704, 2001 WL 575594 at *7 (S.D.N.Y. May 29, 2001) (applying Strickland standard to petitioner's federal claim of ineffective appellate counsel, but evaluating the predicate trial counsel's performance under the state Henry "meaningful representation" standard). Applying the state standard would not change the result in this case, as trial counsel's performance satisfied the State "meaningful representation" requirement.

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).³¹ Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72.³² Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

31 Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."); Jackson v. Leonardo, 162 F.3d at 85; Mayo v. Henderson, 13 F.3d at 533.

32 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984); Fluellen v. Walker, 2000 WL 684275 at *12.

Finally, where trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel. See, e.g., Aparicio v. Artuz, 269 F.3d at 99 n. 10 ("Because the double jeopardy claim was meritless, Petitioner's trial counsel was not ineffective for failing to raise it. And thus, Petitioner's appellate counsel was not ineffective for failing to raise the ineffectiveness of trial counsel.").³³

33 See also, e.g., Marel v. Lord, 95 Civ. 9968, 1998 WL 17730 at *4 (S.D.N.Y. Jan. 16, 1998), aff'd, 173 F.3d 845 (2d Cir. 1999); Bradford v. Keane, CIV. A. No. CV-94-4665, 1996 WL 361593 at *20 (E.D.N.Y. June 3, 1996); Adams v. People of the State of New York, No. 95-CV-687, 1996 WL 345793 at *4 (E.D.N.Y. June 4, 1996); Todd v. Berry, 86 Civ. 9875, 1988 WL 103351 at *6 (S.D.N.Y. Sept. 27, 1988).

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, e.g., 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. The question before this Court, therefore, is whether the First Department's denial of Larrea's ineffective appellate counsel claim involved an "unreasonable application" of the legal principles established by the Supreme Court in Strickland and its progeny.

C. Application of the Strickland v. Washington Standard to Larrea's Claim for Ineffective Assistance of Appellate Counsel

Larrea asserts that his appellate counsel rendered ineffective assistance by not raising on direct appeal a claim of trial counsel ineffectiveness. (Pet. ¶¶ 69-78.) Larrea's ineffective appellate counsel claim thus depends on the merits of his ineffective trial counsel claim. As detailed below, the failure of Larrea's trial counsel to object to the Allen charge did not rise to the level of a Sixth Amendment violation. Because, therefore, Larrea's predicate claim for ineffective trial counsel is meritless, his claim for ineffective appellate counsel must be dismissed. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 99-100 (2d Cir. 2001).

1. The State of the Law in 1990

Larrea concedes that "no controlling decision squarely addressed the particular jury instruction at issue" until over two years after Larrea's trial, when the New York Court of Appeals handed down People v. Antommarchi, 80 N.Y.2d 247, 251, 590 N.Y.S.2d 33, 35 (1992). (Pet. ¶¶ 61, 64). Larrea nevertheless faults his trial counsel for not objecting to the second Allen charge, claiming that "sufficient warnings had been given in various opinions to place [Larrea's trial counsel] on notice" that the Allen charge, if objected to, would be reversed on the grounds later announced in Antommarchi. (Pet. ¶¶ 62, 64.)

The question presented here is not whether the charge at issue constitutes reversible error under Antommarchi, as the performance of Larrea's trial counsel may not be judged in "hindsight." Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065. Rather, the question is whether federal or state decisional law presaged Antommarchi, such that at the time of Larrea's 1990 trial, his counsel should have known to object to the Allen charge at issue on grounds similar to those later announced in Antommarchi.³⁴

a. Background: The 1992 Antommarchi Holding and the Instant 1990 Allen Charge

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

The New York Court of Appeals in Antommarchi found acceptable the following main jury charge:

"A reasonable doubt is a doubt based upon reason. It is a doubt for which a juror can give a reason if he or she is called upon to do so in the jury room. It must be a doubt based upon the evidence or the lack of evidence in this case."

80 N.Y.2d at 251, 590 N.Y.S.2d at 35. The New York Court of Appeals, however, held that the following Allen charge constituted reversible error:

"You swore that, if you have a reasonable doubt, I repeat, a reasonable doubt, on any relative point or material element or on the evidence or lack of it, and when one or more of your fellow jurors questioned you about it, you would be willing and able to give him what you believe is a fair, calm explanation for your position based upon the evidence or the lack of evidence in this particular case."

Id. According to the New York Court of Appeals: "The difference is between a charge which essentially defines the degree of clarity and coherence of thought necessary for the jurors to conclude they harbor a reasonable doubt and one which imposes an affirmative obligation on the juror to specifically articulate the basis for such doubt." Id. The Court of Appeals further explained:

[I]t is not surprising, nor improper, for a court to instruct the jury that a reasonable doubt is one for which a reason can be given, nor to augment that definition with an explanation that the doubt should be sufficiently clear so that the juror would be capable of giving a reason for his or her views . . . .

The language used in the Allen charge, however, went beyond permissible bounds by placing on each juror the express duty of giving a "fair, calm explanation for your position." Manifestly, the burden of proving guilt beyond a reasonable doubt in a criminal proceeding must always remain with the People. An instruction that requires jurors to supply concrete reasons "based upon the evidence" for their inclination to acquit implicitly imposes on defendants the burden of presenting a defense that supplies the jurors with the arguments they need to legitimize their votes. As such, the charge actually reverses the constitutionally required principles that the defense bears no burden and that it is the prosecution that must introduce evidence sufficient to persuade the fact finder, beyond a reasonable doubt, of the defendant's guilt. Consequently, the instruction in the court's Allen charge violated the Due Process Clauses of both the State and Federal Constitutions. While the instructions contained in the court's main charge did not constitute reversible error, to avoid error trial courts would be wise if using similarly worded instructions in the future to follow them with a clarifying statement that the jurors have no obligation to articulate the basis for their doubts.

Id. at 252-53, 590 N.Y.S.2d at 35-36 (citations omitted emphasis added).

The trial court's final Allen charge in Larrea's case contained language virtually identical to the offending Allen charge inAntommarchi, as follows:

Now, you swore that if you had a reasonable doubt, I mean a reasonable doubt on any relative point or material element or on the evidence or lack of it and that one or more of your fellow jurors questions you about it that you would be willing to give him or her what you believe is a fair and calm explanation for your position based upon the evidence and the lack of evidence.

(Tr. 876-77.)

b. Federal Law at the Time of Larrea's 1990 Trial

Pre-1990 Second Circuit decisions in direct criminal appeals disapproved of, but held not erroneous, charges tying "reasonable doubt" to a doubt for which a juror "can give a reason," or, in the more passive formulation, "for which a reason can be given." See United States v. Farina, 184 F.2d 18, 21 (2d Cir.) (divided court found "perhaps . . . unwise" charge that reasonable doubt "'is a doubt for which a juror who says that he has such a doubt about a defendant's guilt, can give a reason for entertaining,'" but did not reverse, as the proof was "ample," defendant failed to object to the charge, and "the charge as a whole as well as the conduct of the trial was eminently fair" the argument "that the charge given might lead some juryman to suppose that he would be called upon to give his reason "rejected as "fanciful"), cert. denied, 340 U.S. 875, 71 S.Ct. 121 (1950); United States v. Woods, 66 F.2d 262, 265 (2d Cir. 1933) (charge that a "reasonable doubt was one for which a reason could be assigned" was disapproved, but not erroneous in light of precedent, although noting "divergent view" other courts have taken); see also, e.g., United States v. Kelly, 349 F.2d 720, 764 (2d Cir. 1965) (approving charge that reasonable doubt is "a doubt for which a reason can be given"), cert. denied, 384 U.S. 947, 86 S.Ct. 1467 (1966); United States v. Davis, 328 F.2d at 867-68 (charge defining "a 'reasonable doubt' as one for which, when asked what it is by a fellow juror, 'you can give a reason,'" under binding precedent, was "'not approved' and 'perhaps unwise' but is 'not erroneous.'"); United States v. Eury, 268 F.2d 517, 521 (2d Cir. 1959) (disapproving, but finding not reversible error, charge that "a reasonable doubt was a doubt which a juror could give a reason for entertaining"); Marshall v. United States, 197 F. 511, 512-13 (2d Cir.) (no error in charge stating that "by the term reasonable doubt is meant not a capricious doubt, but a substantial doubt — a doubt that you can give a reason for if the court called on you to give one"), cert. denied, 226 U.S. 607, 33 S.Ct. 112 (1912).³⁵

35 The Second Circuit extended this line of cases to hold unwise but not erroneous charges that a reasonable doubt is a doubt for which a juror could give a "valid" or "good" reason. See United States v. Klock, 210 F.2d 217, 223-24 n. 1d (2d Cir. 1954) (disapproving but holding not erroneous the charge that "reasonable doubt is such a doubt that a man of reasonable intelligence can give some good reason for entertaining if he is called upon to give a reason"); see also Leecan v. Lopes, 893 F.2d 1434, 1443 (2d Cir.) (on habeas petition from state court, where no objection was lodged, upholding definition of reasonable doubt as "a doubt for which a reasonable man can give a valid reason"), cert. denied, 496 U.S. 929, 110 S.Ct. 2627 (1990); Barber v. Scully, 557 F. Supp. 1292, 1296 (S.D.N.Y. 1983) (denying habeas challenge to reasonable doubt charge as "a doubt for which a reasonable man or woman of reasonable intelligence can give some good reason for entertaining if called upon to give such a reason."), aff'd on other grounds, 731 F.2d 1073 (2d Cir. 1984); contra Adams v. South Carolina, 464 U.S. 1023, 1023-26, 104 S.Ct. 558, 558-60 (1983) (Marshall, J., dissenting from denial of certiorari);Butler v. South Carolina, 459 U.S. 932, 935, 103 S.Ct. 242 (1982) (Marshall, J., dissenting from denial of certiorari); Dunn v. Penn, 570 F.2d 21, 23 (1st Cir.) (charge was improper, but not reversible error standing alone), cert. denied, 437 U.S. 910, 98 S.Ct. 3102 (1978).

The federal courts' rationale for criticizing charges stating that a juror ought to be able to articulate to fellow jurors a reason for acquittal, is that such charges: (1) present the danger of shifting the burden of proof because the jury may look to the defendant to supply that reason, and (2) may intimidate a hold-out juror by suggesting that he may be called upon to explain his doubts. See United States v. Davis, 328 F.2d 864, 867 (2d Cir. 1964) (Friendly, C.J.); United States v. Farina, 184 F.2d at 23-24 (Frank, C.J., dissenting); Pettine v. Territory of New Mexico, 201 F. 489, 495-97 (8th Cir. 1912) (habeas relief granted based on error in reasonable doubt charge); see also Vargas v. Keane, 86 F.3d 1273, 1277-79 (2d Cir.) (post-Antommarchi decision describing grounds for attacking instant charge but upholding the challenged language in the context of the charge as a whole), cert. denied, 519 U.S. 895, 117 S.Ct. 240 (1996).

Antommarchi distinguished between an approved charge that merely requires a juror to formulate in his mind a reason for his doubt, and an erroneous charge (such as the instant charge) that appears to require a hold-out juror to articulate to fellow jurors the reason for his doubt. 80 N.Y.2d at 251-53, 590 N.Y.S.2d at 35-36. The charges affirmed (albeit "disapproved") by the Second Circuit seem to fall into the former category, requiring merely that a juror formulate a reason for his doubt. See, e.g., United States v. Kelly, 349 F.2d at 764 (reasonable doubt is "a doubt for which a reason can be given").

In Marshall v. United States, the Second Circuit held:

There was no error in charging the jury that "by the term reasonable doubt is meant not a capricious doubt, but a substantial doubt — a doubt that you can give a reason for if the court called on you to give one." The definition of "reasonable doubt" as being a doubt for which a reason can be given is frequently adopted by trial judges. The criticism that the charge carried with it an implied threat that the jury might be called upon to explain to the court the reasons which induced them to acquit if they found a verdict of not guilty, is hypercritical.

197 F.2d at 512-13.

In United States v. Farina, the charge stated that a reasonable doubt "is a doubt for which a juror who says that he has such a doubt about a defendant's guilt, can give a reason for entertaining." 184 F.2d at 20. Citing Marshall, the majority rejected as "fanciful" the objection that "the charge given might lead some juryman to suppose that he would be called upon to give his reason." 184 F.2d at 21.

Finally, in United States v. Davis, the charge defined "a 'reasonable doubt' as one for which, when asked what it is by a fellow juror, 'you can give a reason.'" 328 F.2d at 867. Judge Friendly noted defendant's objection that the charge "might intimidate a juror by suggesting that he may be called upon to explain his doubts, although it surely does not require him to justify them." Id. He opined that "but for subsequent judicial commentary," the Second Circuit would be "inclined to agree" with the Marshall court's holding that objections to the charge were "hypercritical." Id. Judge Friendly further noted that the "objection that the judge's illustration demands not mere formulation of the doubt but some attempt at articulation seems . . . rather inconsistent" with the 'Allen charge.'" Id. at 867-68. Given that no objection had been lodged against the charge, Judge Friendly in Davis followed earlier precedent holding that the instruction was "'not approved' and perhaps unwise' but is 'not erroneous.'" Id. at 868.

In short, pre-1990 the Second Circuit had not reversed any reasonable doubt jury charge on "articulation" grounds, and had rejected arguments that reasonable doubt charges that used the passive "a doubt you can give a reason for if called upon" language, were coercive. (See cases cited at pages 45-46 above.) Indeed, the Second Circuit to this day has not been presented with a case involving a mandatory articulation charge and thus has not adopted Antommarchi as a federal standard. See, e.g., Beverly v. Walker, 118 F.3d at 903 (upholding reasonable doubt instruction as a doubt that a juror is able to communicate if asked by a fellow juror, in context of entire charge); Vargas v. Keane, 86 F.3d at 1277-79 (upholding in context of entire charge a definition of reasonable doubt as "'doubt for which you can give a reason if called upon to do so by a fellow juror'"; "The challenged language does not suggest — any more than the 'for which a reason can be given' formulation standing alone — that a juror will be called upon to articulate his doubts, or that hemust articulate them if so called upon."); Fluellen v. Walker, 2000 WL 684275 at *8 (in context of original charge as opposed to Allen charge, "[T]he Court agrees with the State that a charge that jurors have to give reasons for their doubts differs only slightly from a charge that jurorsmust be able to give reasons if called upon to do so by a fellow juror in the jury room and that the former charge carries no greater potential for minimizing the reasonable doubt standard or shifting the burden of proof") (internal quotations omitted, emphasis in original); Mason v. Schriver, 14 F. Supp.2d 321, 330 (S.D.N.Y. July 7, 1998) (Preska, D.J. Peck, M.J.) (in context of entire jury charge, upheld against habeas challenge a jury instruction that if during deliberations a juror says he has a doubt and another juror says what is the reason for your doubt, "'[i]f you can then give a reason based on the evidence or lack of evidence, that is reasonable doubt.'").

Thus, the Court cannot say that based on Second Circuit case law in 1990, Larrea's counsel should have known to object to the trial court's second Allen charge.

c. State Law at the Time of Larrea's Trial

New York decisions bear out the New York Court of Appeals' statement inAntommarchi that "for over 100 years we have approved language defining a reasonable doubt as one which a juror could, if called upon to do so, express or articulate." People v. Antommarchi, 80 N.Y.2d 247, 252, 590 N.Y.S.2d 33, 36 (1992) (collecting New York decisions). E.g., People v. Malloy, 55 N.Y.2d 296, 300-03 n. 2, 449 N.Y.S.2d 168, 169-71 n. 2 (1982) (in context, supplemental charge that repeated original reasonable doubt charge held proper: "It's a doubt for which you can conscientiously express a reason, based on logic and the credible evidence or lack of credible evidence."), cert. denied, 459 U.S. 847, 103 S.Ct. 104 (1982);People v. Jones, 27 N.Y.2d 222, 225-27, 316 N.Y.S.2d 617, 618-19 (1970) ("An instruction defining reasonable doubt as a doubt for which there is a substantial reason is not reversible error, when given in connection with other instructions intended to impress upon the jury the distinction between reasonable doubt and a vague or imaginary doubt."); People v. Guidici, 100 N.Y. 503, 509-10 (1885) (no specific objection lodged; "A doubt for which some good reason arising from the evidence can be given."); see, e.g., 1 CRIMINAL JURY INSTRUCTIONS (New York) § 3.07, at 92 (1983) (New York pattern jury instructions at the time of Larrea's trial defined reasonable doubt in part as "a doubt for which some reason can be given").³⁶

36 See also, e.g., People v. Hammond, 143 A.D.2d 1043, 1044, 533 N.Y.S.2d 755, 756 (2d Dep't 1988) ("overall-effect" of jury charge was proper: "It is a doubt for which you can give a reason."); People v. Rivera, 142 A.D.2d 615, 615, 530 N.Y.S.2d 270, 270 (2d Dep't), (no objection lodged; reasonable doubt "is a doubt for which a juror can give a reason if he is called upon to do so in the jury room." "[A] reading of the entire charge indicates that the concept of reasonable doubt was properly explained to the jury."), appeal denied, 72 N.Y.2d 1049, 534 N.Y.S.2d 948 (1988); People v. Quinones, 123 A.D.2d 793, 793, 507 N.Y.S.2d 417, 418 (2d Dep't 1986) ("overall, . . . when considered with the rest of the charge on reasonable doubt" the following charge was "proper": a reasonable doubt "is a doubt for which a juror can give a reason if he is called upon to do so in the jury room"), appeal denied, 69 N.Y.2d 749, 512 N.Y.S.2d 1053 (1987); People v. Lagroppo, 90 A.D. 219, 231-32, 86 N.Y.S. 116, 126 (1st Dep't 1903) (reasonable doubt is a doubt a "man of reasonable intelligence" could give a "good reason for entertaining if he is called upon to do so"), aff'd, 179 N.Y. 126 (1904);

These state decisions did not presage Antommarchi's prohibition against mandatory articulation charges. Quite the contrary, and with all due respect to the New York Court of Appeals, this Court believes that any juror hearing that a reasonable doubt "is a doubt for which a juror can give a reason if he is called upon to do so in the jury room," e.g., People v. Quinones, 123 A.D.2d at 793, 507 N.Y.S.2d at 417, would expect to be required to explain any doubts he had to his fellow jurors. Indeed, in support of the prohibition on mandatory articulation charges, the Antommarchi Court cited only decisions from Indiana, Iowa, and the Eighth Circuit, not New York cases. People v. Antommarchi, 80 N.Y.2d at 252, 590 N.Y.S.2d at 36. One thus can infer that Antommarchi's rejection of an articulation Allen charge, far from being presaged by prior New York precedent, marked a break with the past.

While a few pre-Antommarchi Appellate Division decisions involving mandatory articulation charges reversed the conviction or found the charge language problematic, they are largely distinguishable. In People v. Jackson, 155 A.D.2d 329, 329, 547 N.Y.S.2d 593, 593-94 (1st Dep't 1989), aff'd on other grounds, 76 N.Y.2d 908, 909, 563 N.Y.S.2d 42, 43 (1990), the First Department stated that "[w]hile a more permissive choice of words ('can' instead of 'has to') might have been preferable in explaining the jurors' articulation of their reasonable doubt in the jury room, the charge, in its overall context, did not improperly shift the balance in favor of the prosecution . . . ." The First Department thus frowned upon language requiring jurors to articulate grounds for acquittal, but did not reverse on that ground.³⁷

37 The cryptic nature of the Jackson decision ultimately vitiates its precedential effect. While the Court of Appeals described the relevant charge language in greater detail, People v. Jackson, 76 N.Y.2d at 909, 563 N.Y.S.2d at 43, its decision was not issued until months after Larrea's trial. Thus, Larrea's counsel cannot be credited with that information.

In People v. La Rosa, 112 A.D.2d 954, 954, 492 N.Y.S.2d 633, 634 (2d Dep't 1985), the Second Department reversed a conviction, at least in part because of the jury charge "indicating . . . that the jury had to come up with a 'substantial' and 'articulable' reason for its doubts, and . . . suggesting that they might even be required to "tell what that doubt is.'" Id. at 954, 492 N.Y.S.2d at 634. La Rosa appears to be the sole pre-Antommarchi decision to strike down a jury charge on articulation grounds. The decision, however, reversed based on "numerous prejudicial errors," "the cumulative effect" of which "necessarily deprived defendant of a fair trial." People v. La Rosa, 112 A.D.2d at 954-55, 492 N.Y.S.2d at 634-35. Given that the "articulation" portion of the charge merely "aggravated" the error, it might not have been a sufficient, independent ground for reversal.

People v. Mitchell, 124 A.D.2d 977, 977-78, 508 N.Y.S.2d 814, 815 (4th Dep't 1986), like La Rosa, involved a charge that contained various alleged, albeit unpreserved, errors, including "that each juror had to come up with substantial reasons for his or her doubt and be able to explain it to the other jurors." The Mitchell court, however, affirmed the conviction because the charge, "when viewed as a whole, conveyed the proper standard to the jury." Id. The dissent would have reversed in the interest of justice because of the combination of errors including the reasonable doubt jury charge. Id. at 978, 508 N.Y.S.2d at 815 (dissenting opinion).

In short, state law at the time of Larrea's trial was far from clear. One decision found reversible error based in part on a mandatory articulation charge, People v. La Rosa, 112 A.D.2d at 954, 492 N.Y.S.2d at 634, and another decision affirmed but deemed similar charge language problematic, People v. Jackson, 155 A.D.2d at 329, 547 N.Y.S.2d at 593-94. The remaining decisions involving mandatory articulation charges, People v. Mitchell, 124 A.D.2d at 977-78, 508 N.Y.S.2d at 815, or, less egregious "formulation" charges, see, e.g., People v. Rivera, 142 A.D.2d at 615, 530 N.Y.S.2d at 270; People v. Quinones, 123 A.D.2d at 793, 507 N.Y.S.2d at 417, affirmed on the basis of the overall charge context. Accordingly, we are left with the possibility that, as of Larrea's 1990 trial, state appellate courts might have deemed the instantAllen charge to be reversible error, but there was no clear precedent that would have guided Larrea's trial counsel (or the trial court).

2. Larrea's Trial Counsel's Performance Was Not Deficient Under Strickland, Because Counsel's Failure to Object to The Allen Charge Was Not "Objectively Unreasonable"

Strickland requires a petitioner to prove both that (1) trial counsel performed "deficiently" (i.e., objectively unreasonable), and (2) prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984).³⁸ Ineffective counsel claims are often denied on the ground that (1) counsel's actions, or lack thereof, were the product of "trial strategy" rather than incompetence, or (2) the petitioner failed to prove prejudice. Neither option is available here.

38 Arguably, Larrea's 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). (See fn.30, above.) In his habeas reply brief, however, Larrea renounced the state Baldi standard as "obsolete," effectively waiving its application in this case. (Dkt No. 6: Larrea Habeas Reply Br. at 15-16.) Larrea obviously recognized that the Baldi standard is less likely to result in a finding of ineffective counsel in a case such as this involving only one alleged error, as Baldi looks to whether counsel supplied "meaningful representation" as a whole. See, e.g., People v. Flores, 84 N.Y.2d 184, 189, 615 N.Y.S.2d 662, 664-65 (1994) (holding that counsel was not ineffective, despite failure to preserve alleged Rosario error, because, among other things, counsel performed competently at opening, closing, cross-examinations, and motion practice), habeas writ granted sub nom,Flores v. Demskie, 215 F.3d 293 (2d Cir.), cert. denied sub nom. Keane v. Flores, 531 U.S. 1029, 121 S.Ct. 606 (2000).

As to trial strategy, there was no downside to counsel voicing a specific objection to the instant charge. Indeed, counsel did object to the second Allen charge on the ground that it was improperly coercive to deliver an Allen charge after the jury twice pronounced itself deadlocked. (Tr. 878-79.) Having objected to the charge as a whole, counsel had no strategic reason not to object to the specific charge language. Compare United States v. Quintero-Barraza, 78 F.3d 1344, 1350 (9th Cir. 1995) (denying ineffective counsel claim for failure to object to Allen charge, as counsel was "apparently employing trial strategy in not objecting to the charge" — hoping that jury would "possibly come to a decision [acquittal] with additional time"), cert. denied, 519 U.S. 848, 117 S.Ct. 135 (1996); United States v. Hynes, 424 F.2d 754, 758 (2d Cir.) (defense counsel's failure to object, in general, to delivery of an Allen charge could be ascribed to trial strategy, as the charge could have "broken the deadlock in favor of acquittal"), cert. denied, 399 U.S. 933, 90 S.Ct. 2270 (1970).

Trial counsel's failure to object, moreover, clearly prejudiced Larrea's case. The instant charge (Tr. 876-77, quoted at pages 6-8 above) was virtually identical to the charge deemed reversible error inAntommarchi. 80 N.Y.2d at 251-52, 590 N.Y.S.2d at 35-36. Although Larrea's trial took place two years before Antommarchi, the First Department decided the direct appeal six years after Antommarchi. See People v. Larrea, 251 A.D.2d 113, 114, 674 N.Y.S.2d 39, 39 (1st Dep't 1998). Had trial counsel preserved the error by objecting to the instant charge on articulation grounds, the First Department would have had little choice but to reverse under Antommarchi. See Mayo v. Henderson, 13 F.3d at 534 (Strickland's prejudice prong, unlike the performance prong, may be determined "with the benefit of hindsight"). Since there is, at the very least, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068, the prejudice prong has been satisfied.

We thus face a pure question of attorney competence, complicated by the fact that, at the time of Larrea's trial, the second Allen charge given was not clearly erroneous.³⁹

39 Larrea does not argue that the Allen charge at issue in this case was erroneous under binding appellate authority at the time of trial. (Pet. ¶ 61; "no controlling decision squarely addressed the particular jury instruction at issue until after the trial had concluded.") Rather, he argues that, "while Antommarchi did not decide the issue until over two years after Mr. Larrea's [February, 1990] trial, sufficient warnings had been given in various opinions to place [Larrea's trial counsel] on notice that a significant appellate issue existed in the supplemental Allen charge." (Pet. ¶ 64.)

It is settled law that "when a trial court's instruction is legally correct as given, the failure to request an additional instruction does not constitute" ineffective assistance of counsel under Strickland. See e.g., Aparicio v. Artuz, 269 F.3d at 99; United States v. Brooks, 82 F.3d 50, 54 (2d Cir.) (counsel not deficient for failing to object to "proper" jury charge), cert. denied, 519 U.S. 907, 117 S.Ct. 267 (1996);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"); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *15 n. 27 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.) (collecting cases).

Larrea's trial counsel also was not required to forecast a true change in the law. "In assessing the attorney's performance, a reviewing court must judge his conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess his strategy choices. Counsel is not required to forecast changes in the governing law." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citations omitted).⁴⁰ Accordingly, if Antommarchi effectuated a true change in the law, Larrea's trial counsel could not be faulted for failing to foresee it.

40 Accord, e.g., Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 ("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."); Sellan v. Kuhlman, 261 F.3d 303, 317 (2d Cir. 2001) ("it was reasonable for the coram nobis court not to have expected appellate counsel to predict changes in state law or to anticipate the Court of Appeals' [later] decision"); Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir.) (quotingLilly v. Gilmore, 988 F.2d 783, 786 (7th Cir.) ("The Sixth Amendment does not require counsel to forecast changes or advances in the law . . . ."),cert. denied, 510 U.S. 852, 114 S.Ct. 154 (1993)), cert. denied, 513 U.S. 888, 115 S.Ct. 232 (1994); Walker v. Jones, 10 F.3d 1569, 1573 (11th Cir.) (rejecting petitioner's ineffective assistance of counsel claim for failure to object to a jury charge later found erroneous, where the lower courts had rejected challenges to the charge and the Supreme Court had not yet ruled on the issue), cert. denied, 511 U.S. 1111, 114 S.Ct. 2111 (1994); Fluellen v. Walker, 2000 WL 684275 at *12 ("Even assuming that, as [petitioner] argues, People v. Antommarchi . . . suggests that the charge in [petitioner's] case was erroneous, that case was decided nearly three years after [petitioner's] trial, and is therefore irrelevant to an assessment of trial counsel's performance.");Stanley v. Kuhlman, 10 F. Supp.2d 250, 255 (E.D.N.Y. 1998) ("an attorney's performance must be evaluated in light of the prevailing legal practice at the time, without the benefit of hindsight"); Dixon v. Miller, 56 F. Supp.2d 289, 299 (E.D.N.Y. 1999); Mingo v. Artuz, No. 95 CV 1087, 1999 WL 301686 at *3 (E.D.N.Y. May 5, 1999); Paulino v. United States, 97 Civ. 2107, 95 Cr. 116, 1998 WL 214877 at *5 (S.D.N.Y. April 28, 1998) ("A defendant is entitled to a competent lawyer, not an omniscient one."); Stanley v. Kuhlman, 10 F. Supp.2d 250, 255 (E.D.N.Y. 1998) ("defense counsel was not ineffective for failing to foresee" change in law effected by Court of Appeals decision, as it "was not widely anticipated"); Marino v. United States, 97 Civ. 1884, 89 Cr. 341, 1997 WL 714879 at *3 (S.D.N.Y. Nov. 17, 1997) ("Counsel's failure to predict a change in the law does not constitute a performance falling below objectively reasonable professional standards.").

But what of the instant situation, in which no binding precedent at the time of trial squarely deemed the charge either clearly erroneous or correct as given? That is, what degree of deference should be accorded trial counsel for failing to object to a possibly erroneous charge that is later deemed erroneous? Second Circuit decisions appear to be in conflict.

In Bloomer v. United States, 162 F.3d 187 (2d Cir. 1998), the Second Circuit explained:

Although an attorney is not usually faulted for lacking the foresight to realize that a higher court will subsequently identify a defect injury instructions similar to those used at his client's trial, . . . an attorney nonetheless maybe held responsible for failing to make such an objection when precedent supported a "reasonable probability" that a higher court would rule in defendant's favor.

Id. at 193. The phrase "reasonable probability," denotes a fairly low likelihood that an event will take place.⁴¹ In the context of an ineffective trial counsel claim, a requirement that counsel raise all claims with a "reasonable probability" of success essentially would require counsel to raise all non-frivolous objections, absent strategic considerations.

41 The Bloomer court appears to have borrowed the phrase "reasonable probability" from the test for materiality under Strickland's prejudice prong, which states that "a reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995). Rather, the phrase describes a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; see generally id. at 297-301, 119 S.Ct. at 1955-58 (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight") (Souter, J., concurring and dissenting).

That seems far too stringent a standard to apply to trial counsel. While the "reasonable probability" standard is appropriate for the prejudice prong — after counsel's performance has already been deemed deficient — it makes less sense in the performance prong, as it appears to violate Strickland's admonition that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065.

The Bloomer Court's "reasonable probability" standard appears to be dicta as the decision found counsel ineffective based on his failure to object to a charge containing "clear and previously identified errors."Bloomer v. United States, 162 F.3d at 193. In fact, more recent Second Circuit authority effectively limited Bloomer to its facts: "Generally, this Court has concluded that counsel's failure to object to a jury instruction (or to request an additional instruction) constitutes unreasonably deficient performance only when the trial court's instruction contained 'clear and previously identified errors.'" Aparicio v. Artuz, 269 F.3d at 99 (quoting Bloomer v. United States, 162 F.3d at 193). Applied to the facts of this case, Aparicio would not find trial counsel ineffective, as the instant charge did not contain a clear and previously identified error. Yet Aparicio's language requiring "clear and previously identified errors" also is dicta, as Aparicio involved the failure to object to a charge that was clearly proper under New York law. 269 F.3d at 99; see Romero v. United States, 00 Civ. 3513, 2001 WL 921167 at *9 (S.D.N.Y. Aug. 15, 2001) ("if at the time of Petitioner's trial, there was evidence that the law on [relevant jury] instructions might change, Petitioner's attorneys may have been obliged to object, even though the instructions given had not yet been declared erroneous. However, a review of the case law developing in the 1990s does not support Petitioner's claim that there was sufficient possibility of change such that his attorneys should have had the foresight to object."); but see Malizia v. Sculley, 86 Civ. 9484, 1988 WL 45585 at *5 (S.D.N.Y. 1988) ("That some scholarly and judicial opinion held the testimony inadmissible, however, did not impose upon counsel the obligation to make a motion or to raise an objection that he reasonably considered meritless.").

Absent clear guidance from the Second Circuit, this Court will apply the general principles enunciated in Strickland regarding the standard of performance to which trial counsel should be held. Strickland, of course, teaches that "[j]udicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. "[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.'" Id.

Even if Larrea's trial counsel's failure to object was the result of error rather than strategy, trial counsel's performance must still be accorded a certain degree of deference, as the Sixth Amendment does not guarantee "error-free, perfect representation," Morris v. Garvin, No. 98-CV-4661, 2000 WL 1692845 at *3 (E.D.N.Y. Oct. 10, 2000), but merely a "wide range of professionally competent assistance," Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Larrea must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064; see Burger v. Kemp, 483 U.S. 776, 794, 107 S.Ct. 3114, 3126 (1987) ("in considering claims of ineffective assistance of counsel, '[w]e address not what is prudent or appropriate, but only what is constitutionally compelled'"); Castro-Poupart v. United States, No. 91-1877, 976 F.2d 724 (table), 1992 WL 240655 at *2 (1st Cir. Sept. 30, 1992) ("Effective assistance is not necessarily error free assistance.);Lancaster v. Newsome, 880 F.2d 362, 375 (11th Cir. 1989) ("petitioner was not entitled to error-free representation, only representation that fell within the range of competence demanded of attorneys in criminal cases"); United States v. Di Tommaso, 817 F.2d 201, 216 (2d Cir. 1987) (although, "[t]o put it charitably," trial counsel's performance did not "furnish a full model for aspiring advocates," it did not fall outside the "wide range of reasonable professional assistance"); Wise v. Smith, 735 F.2d 735, 739 (2d Cir. 1984) (defendant "was not entitled to a perfect defense, and the cumulative effect of the errors and omissions that we might find do not amount to a denial of effective assistance of counsel"); Solomon v. Commissioner of Correctional Servs, 786 F. Supp. 218, 226 (E.D.N.Y. 1992) ("Although petitioner's counsel undoubtedly made certain errors, this record indicates that viewed in the context of the entire record, he did a reasonable job.").

In the related context of what constitute "cause" for a procedural complaint, the Supreme Court has pointed out that there is some level of attorney mistake that, though prejudicial to the defendant, does not amount to ineptitute of constitutional proportions:

[T]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default. At least with respect to defaults that occur at trial, the Court of Appeals' holding that ignorant or inadvertent attorney error is cause for any resulting procedural default is plainly inconsistent with Engle. It is no less inconsistent with the purposes served by the cause and prejudice standard.

So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, supra, we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default.

Murray v. Carrier, 477 U.S. 478, 486-88, 106 S.Ct. 2639, 2644-45 (1986);see Engle v. Isaac, 456 U.S. 107, 133-34, 102 S.Ct. 1558, 1575 (1982) ("Counsel might have overlooked or chosen to omit respondents' due process argument while pursuing other avenues of defense. We have long recognized, however, 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.").

Judged in context and without the benefit of hindsight, Larrea's trial counsel's failure to object to the allegedly erroneous Allen charge did not constitute ineffective assistance sufficient to violate Larrea's Sixth Amendment rights. As described in Section II. C. 1, above, at the time of Larrea's trial, the charge at issue was not clearly erroneous under binding federal or state authority. The Court here has been assisted by briefs from Larrea s counsel and the State and assisted in additional research by my law clerk, and after conducting an in-depth analysis of the relevant jurisprudence and the context of the charge, the Court has not been able to conclude that the challenged Allen "articulation" charge would have been found erroneous under federal or state precedent in 1990. Larrea's trial counsel, of course, had to make his decision without advance warning (or research help) during trial. See Bloomer v. United States, 162 F.3d at 193 (recognizing greater difficulty of perceiving error in oral jury instruction at trial than written record on appeal); United States v. Birbal, 62 F.3d 456, 459 n. 1 (2d Cir. 1995) (noting difficulty of discerning specific flaws in oral jury charges). Although Larrea's trial counsel objected to the Allen charge on the reasonable basis that it was unduly coercive (Tr. 878-79), he is now alleged to be incompetent for failing also to object on the specific grounds at issue here. Given both the ambiguity and the complexity of the law on this subject, that is simply too high a bar to set in the name of "professional competence."⁴² Moreover, the New York Court of Appeals in Antommarchi itself opined that over 100 years of state law supported a charge virtually indistinguishable from the charge the New York Court of Appeals held erroneous. Further, the Antommarchi Court did not cite a single New York decision to support its holding that the Allen charge at issue violated the state and federal constitutions. One could thus infer that the Antommarchi decision, far from being presaged by prior New York precedent, marked a clean break with the past. Competent counsel cannot be expected to foresee or divine such changes.

42 "An attorney's performance must be evaluated in light of the prevailing legal practice at the time . . . ." Stanley v. Kuhlman, 10 F. Supp.2d at 255. The instant charge was apparently taken from a widely-used pattern charge treatise, 1 Howard G. Leventhal, Charges To The Jury Requests To Charge In A Criminal Case — New York, § 2.40 at 99 (Lawyers Cooperative 1988) (quoting unpublished Allen charge delivered in People v. Sharff, 38 N.Y.2d 751, 381 N.Y.S.2d 48 (1975) (Lane, J.)).

In short, counsel's failure to object at trial to the judge's finalAllen charge did not satisfy the Strickland standard for deficient performance.

3. The First Department's Denial of Larrea's Claim For Ineffective Assistance of Appellate Counsel Was Not an Objectively Unreasonable Application of Strickland

Larrea faults his appellate counsel for raising the ineffective trial counsel claim in a C.P.L. § 440.10 motion rather than on direct appeal. (Pet. ¶¶ 69-78; Dkt No. 6: Larrea Reply Br. at 10-13.) Correspondence reveals that appellate counsel erroneously believed that Larrea's ineffective trial counsel claim would be best asserted in a C.P.L. § 440 motion. (Larrea Reply Aff. Ex. D.) The state trial court ultimately denied the C.P.L. § 440 motion, holding that (1) Larrea waived the claim by not raising it on direct appeal, and (2) in any event, the claim was meritless. (Pet. Ex. D at 2.) Subsequently, the First Department summarily denied Larrea's petition for a writ of error coram nobis asserting an ineffective appellate counsel claim. (Pet. Ex. F.)⁴³

43 The First Department's decision offered no explanation other than a citation to People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988). (Pet. Ex. F.)

Under the AEDPA, this Court's only inquiry is whether the First Department's coram nobis decision rejecting Larrea's ineffective appellate counsel claim "amounted to an unreasonable application of theStrickland standard." Aparicio v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001). A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 764 (2000); Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994); see discussion on pages 39-41 above.

As to the performance prong, counsel clearly erred by not raising the trial counsel claim on direct appeal. However, because Larrea's ineffective trial counsel claim was meritless (see Point II. C. 2. above), his appellate counsel had no obligation to raise that claim inany forum. See, e.g., Aparicio v. Artuz, 269 F.3d at 99 n. 10, 100 n. 11 (appellate counsel not ineffective for failing to raise meritless claims of trial counsel ineffectiveness); Fluellen v. Walker, 2000 WL 684275 at *12 ("Since Fluellen's trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel."). Because the performance prong turns on whether counsel acted "objectively" unreasonably, see, e.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764, it is irrelevant that Larrea's appellate counsel intended to raise the claim — the failure to raise through the correct procedure a meritless claim cannot form the basis for a Sixth Amendment violation. The Court therefore need not reach the prejudice prong. (See discussion at page 38 above.)

CONCLUSION

For the reasons set forth above, Larrea's habeas corpus petition should be denied. Because the issues addressed herein are not altogether free of doubt, however, the Court should issue a certificate of appealability.See, e.g., Slack v. McDaniel, 529 U.S. 473, 475, 120 S.Ct. 1595, 1599 (2000) (certificate of appealability should issue where "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further'"); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (certificate of appealability should issue "if the issues involved in a petition are debatable among jurists of reason, could be resolved in a different manner, or are adequate to deserve encouragement to proceed further"), cert. denied, 531 U.S. 873, 121 S.Ct. 175 (2000).

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 Shira A. Scheindlin, 500 Pearl Street, Room 1050, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. 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, ¶ (a), ¶ (e).