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August 5, 1983

NORMAN CLOUD, Petitioner, against CHARLES SCULLY and ROBERT ABRAMS, Attorney General of the State of New York, Respondents.

The opinion of the court was delivered by: CONNER



 Norman Cloud ("Cloud"), currently incarcerated at the Auburn Correctional Facility, has petitioned this Court for a writ of habeas corpus to obtain his release from the custody of the State of New York. On January 12, 1978, petitioner was sentenced to a term of imprisonment of from fifteen years to life following his conviction by a jury on a charge of murder in the second degree. Cloud also pleaded guilty to two counts of robbery in the first degree for which he received terms of imprisonment of six to eighteen years, both to run concurrently with the sentence on the murder conviction.

 Following his sentencing, petitioner moved pursuant to § 440.10 of the New York Criminal Procedure law to vacate his conviction on the ground that he had been denied effective assistance of counsel at the pretrial suppression hearing. That motion was denied on March 21, 1979. Cloud then appealed his convictions to the Appellate Division, First Department, which affirmed the convictions without opinion on March 6, 1980. On June 27, 1980, Judge Bernard Meyer denied petitioner's application for leave to appeal to the New York Court of Appeals.

 Petitioner now challenges the constitutionality of his convictions on three grounds. First, he contends that he was denied his right to effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Second, he claims that the circumstances of his warrantless arrest violated rights protected by the Fourth Amendment. Finally, Cloud asserts that his inculpatory post-arrest statements were involuntarily rendered and, consequently, should have been suppressed. Because I conclude that petitioner has not exhausted his available state court remedies concerning the constitutionality of his arrest, see 28 U.S.C. §§ 2254(b)-(c), the entire petition must be dismissed pursuant to the Supreme Court's mandate in Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).


 The drama surrounding petitioner's arrest involves a scenario which might well have come from a grade-B Hollywood movie. In the early morning hours of October 6, 1977, the police received a tip from Monk Corachio, who had just been arrested on a weapons charge, concerning the September 30, 1976 murder of a grocery store clerk during the course of a robbery at 366 Second Avenue. Corachio informed the police that the murder had been committed by a man known to him as "Moose," who could be found in Room 908 of the Holiday Inn on West 57th Street in Manhattan. See Tr. 145-54. He indicated to Police Officer Baezler that he had been in Moose's hotel room just two days earlier and had been shown a .38 caliber gun which Moose stated he had stolen from a supermarket guard during a prior robbery and had subsequently used to shoot the grocery store clerk. See Tr. at 152. Accordinng to Officer Baezler, Corachio also told him that in addition to the .38 caliber gun, there were two shotguns in the hotel room. See Tr. at 153-54.

 Following verification of Corachio's information, six or seven police detectives proceeded to the Holiday Inn, arriving at approximately 10:45 A.M. See Tr. at 20. Led by Sergeant Makon, the detectives went straight to the ninth floor, where they questioned Mrs. Turner, the chambermaid. According to Sergeant Makon, Mrs. Turner described the occupants of Room 908 as one black male in his early twenties, standing about six feet tall and weighing approximately 200 pounds, a white male in his mid-twenties and several white females. See Tr. at 22-23. Mrs. Turner's description of the black male matched both the description of Moose given by Corachio and the descriptions of the suspect in the Second Avenue delicatessen murder given to police by witnesses.

 After obtaining a pass key from Mrs. Turner, the detectives attempted unsuccessfully to enter Room 908. *fn1" Mrs. Turner then let the detectives into Room 910, where they attempted to telephone Room 908 in an effort to flush the suspects. That ruse failed, however, because the telephone line to Room 908 was busy. See Tr. at 25. The police detectives next tried to gain entrance to Room 908 by posing as hotel maintenance men. That pretext also failed. See Tr. at 25-26.

 After this third unsuccessful attempt at deception, the detectives finally entered Room 908 by a more direct route: they kicked in the connecting door between Rooms 908 and 910. See Tr. at 26-27. The actual kicking was done by Detective Connally, who was equipped with a bullet-proof vest and a double-barrel shotgun. See Tr. at 180-81. As the officers entered with their guns drawn, see Tr. at 29, petitioner, clothed only in his underwear, began to rise from the bed to the detectives' left and another male, later identified as Robert Nappe, started to get out of the bed to their right. As Cloud made a move toward a revolver located in plain view on the second shelf of a bedside table, Sergeant Makon rushed forward, grabbed his wrist and forced him back on the bed. See Tr. at 33. At gunpoint, both Cloud and Nappe were handcuffed by the officers. See Tr. at 34.

 At the time the detectives burst into Room 908, there were also two other persons, a 30-year-old male and an 18-year-old female, in the room. According to Sergeant Makon, the female, who at the time of the police invasion was undressed, asked the officers for her clothes and pointed toward the dresser. When Detective Makon opened the lower left dresser drawer in an attempt to retrieve the woman's clothes, he saw two sawed-off shotguns which he promptly seized. See Tr. at 37.

 Immediately after his arrest, petitioner was taken to the First Homicide Zone offices in the 13th Precinct. After being advised of his rights, see Tr. at 287, Cloud was questioned by Detective Ferrick. During the course of that interrogation, petitioner admitted that he had shot the grocery clerk. Detective Ferrick reduced Cloud's statement to writing and asked petitioner to sign it; however, Cloud stated that he was unable to read or write. The detective then read the written statement to petitioner who acknowledged that it was correct and printed his name underneath it. See Tr. at 300-03. Later that evening, Assistant District Attorney Mirabile was called to the police station to interview Cloud. Under Mirabile's questioning, in the presence of Detective Ferrick and a stenographer, petitioner again admitted shooting the grocery clerk. See Respondent's Ex.B at 12. During the course of Mirabile's interview, petitioner also confessed, inter alia, to having committed at least three other armed robberies of grocery stores or supermarkets. See generally Respondent's Ex.B.

 Prior to the commencement of petitioner's trial, the court held a hearing on Cloud's motions to suppress his post-arrest statements and the weapons seized by the police from his hotel room. Those motions were denied by the court and both the weapons *fn2" ...

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