The opinion of the court was delivered by: EUGENE H. NICKERSON
NICKERSON, District Judge:
John Meatley brought this pro se action under 28 U.S.C. § 2254 for a writ of habeas corpus challenging his 1987 conviction in Queens County Supreme Court for attempted murder, robbery, assault and criminal possession of a weapon.
In his petition Meatley says that he was denied due process because (1) the trial court "refused to suppress all statements attributed to him," (2) the trial court "refused to suppress all identification testimony" pertaining to him, (3) the trial court denied him his right to be present when it answered a note from the jury during deliberations, and (4) he was denied effective assistance of trial and appellate counsel.
In a memorandum of law Meatley also contends that he was denied due process because his arraignment was unreasonably delayed so the police could question him. Because he proceeds pro se, the court will treat the memorandum as incorporated into his petition. See generally Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972).
The evidence produced at trial and the state court proceedings may be summarized as follows.
At approximately 12 p.m. on May 9, 1986 Anthony Rhodes, Lasson Ross and Ronald Kirby were in the living room of an apartment in Queens generally known as a narcotics trafficking location when three men, one of whom wore his hair in dreadlocks, entered and announced a robbery.
Ross led the dreadlocked man and one of his companions to another room where the stash was hidden. The men then returned to the living room and the dreadlocked man, not satisfied that Ross had relinquished all of the money and drugs, again struck Ross and Rhodes and began knocking over furniture and searching the apartment.
At that point, Harold Campbell, a neighbor, entered the apartment. The dreadlocked man hit Campbell, brought him into the living room and then forced Rhodes, Ross, Kirby and Campbell to turn over their jewelry. After firing another shot that lodged in a chair the dreadlocked man and his companions fled with the money, drugs and jewelry. The witnesses estimated that the entire incident took between eight and twenty minutes.
Police Officer Thomas McGovern and others arrived at the scene about ten minutes later and began an investigation. At approximately 1:00 a.m. five days later, on May 14, 1986, McGovern arrested Meatley for the robbery and gave him a so-called Miranda warning. Meatley said that he understood his rights and that he did not wish to answer any questions. McGovern then went to another location to arrest another suspect and returned to bring Meatley to the 105th precinct station house, placing him in a holding cell at about 2:00 a.m.
At about 4:00 a.m. McGovern brought Meatley to Central Booking in Queens where he remained until 10:30 a.m. At that time, McGovern returned Meatley to the station house holding cell. At about 2:15 p.m. McGovern again gave Meatley a Miranda warning, and Meatley again declined to answer any questions.
At about 2:30 p.m. Meatley was placed in a lineup with five "fillers." Unlike the fillers, Meatley wore his hair in dreadlocks. The police provided Meatley and the fillers with baseball-type caps to cover their hair.
Rhodes, Campbell and Ross separately viewed the lineup. Each recognized Meatley as the man who had pistol-whipped him or another and shot Kirby.
Sometime between 2:35 and 3:00 p.m. McGovern told Meatley that he had been identified by the witnesses. Meatley then began crying and stated that he had "not meant to shoot" Kirby and that he had told Kirby "not to go to sleep" because he had not wanted Kirby to die.
On October 14 and December 1, 1986 the trial court held a Wade/Huntley hearing upon Meatley's motions to suppress testimony regarding the identifications and inculpatory statements. Meatley contended that the lineup was improperly suggestive because his hair was visible beneath his cap and that the inculpatory statements were made involuntarily. The trial court denied the motions on January 12, 1987.
After Meatley was convicted by a jury in the Queens County Supreme Court, the trial judge sentenced him to concurrent terms of twelve and one-half to twenty five years for the attempted murder, eight and one-third to twenty five years on each of three of the nine robbery counts, twelve and one-half to twenty five years on each of the remaining robbery counts, five to fifteen years for the assault, and five to fifteen years for possession of a weapon.
Meatley appealed the conviction to the Appellate Division, Second Department. Represented by different counsel, he made six arguments. He claimed a denial of due process on the grounds that (1) his arraignment was unreasonably delayed, (2) the trial court refused to suppress his alleged statements, and (3) the trial court refused to suppress identification testimony. Appellate counsel also contended that, as a matter of state law, (4) the trial court should have given a "missing witness" charge, (5) the trial court should have set aside the verdict as to attempted murder because the jury found Meatley's co-defendant not guilty and the verdict was inconsistent in light of the court's charge, and (6) the sentence was excessive.
By letter application that did not raise any issue, even in general terms, but attached his thirty-four page Appellate Division brief, Meatley sought leave to appeal to the New York Court of Appeals. The Court of Appeals denied leave on October 17, 1990. People v. ...