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January 29, 1997

MARTIN H. TANKLEFF, Petitioner, against D.A. SENKOWSKI, Superintendent, Clinton Correctional Facility, PHILLIP COOMBRE, Jr., Acting Commissioner N.Y. State Department of Correctional Services, DENNIS C. VACCO, Attorney General, Respondents.

The opinion of the court was delivered by: PLATT

 PLATT, District Judge.

 Petitioner MARTIN TANKLEFF has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

 Petitioner seeks the writ on the grounds that (1) the trial court erred by introducing statements made by petitioner to the detectives in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and its progeny; (2) petitioner's statements to the police were "involuntary, unreliable, and uncorroborated and, accordingly, the Fourteenth Amendment prohibited their use against him at trial"; (3) the jury was unconstitutionally selected because (a) petitioner was not present during the pre-screening process conducted in the judge's chambers and (b) he was not allowed to challenge the prosecutor's use of peremptory strikes against all potential African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991); (4) the prosecution withheld material that it was obligated to turn over to petitioner pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963); and (5) the prosecution's summation was "in bad faith" and violated petitioner's due process right to a fair trial.


 On October 23, 1990, following a jury trial in Suffolk County Court (Tisch, J.), petitioner was convicted of one count of Intentional Murder in the Second Degree, in violation of New York Penal Law Section 125.25, subdivision 1, for the killing of his father, Seymour Tankleff, and one count of Depraved Indifference Murder in the Second Degree, in violation of New York Penal Law Section 125.25, subdivision 2, for the killing of his mother, Arlene Tankleff. Thereafter, he was sentenced to two consecutive indeterminate terms of incarceration of twenty-five years to life.

 By Decision and Order dated December 27, 1993, the New York Supreme Court, Appellate Division, Second Judicial Department (by a 3-to-2 majority vote) affirmed the trial court's judgment of conviction. People v. Tankleff, 199 A.D.2d 550, 606 N.Y.S.2d 707 (2nd Dept. 1993).

 By Order dated February 10, 1994, Associate Justice O'Brien granted petitioner leave to appeal to the Court of Appeals.


 After three State court decisions, this Court presumes a certain familiarity with the factual background; accordingly, the Court will only provide a summary of the facts. Having reviewed the record, this Court concurs with the factual findings of the State courts. See Purkett v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (quoting 28 U.S.C. § 2254(d)(8) and citing Marshall v. Lonberger, 459 U.S. 422, 432, 74 L. Ed. 2d 646, 103 S. Ct. 843 (1983) ("In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and, absent some procedural error, may be set aside 'only if they are not fairly supported by the record.'")).

 At approximately 6:17 a.m. on September 17, 1988, two police officers responded to a 911-telephone call in Belle Terre, New York. Upon arriving at the home of petitioner, the police discovered petitioner, soiled with blood, and the bodies of Arlene and Seymour Tankleff. Arlene Tankleff had been beaten severely and stabbed to death; Seymour Tankleff had been beaten severely and stabbed, but was still breathing. An ambulance took Seymour Tankleff to the hospital, where he died shortly thereafter.

 At approximately 9:20 a.m., petitioner volunteered to accompany the police to the station house. At 9:40 a.m., detectives K. James McCready and Norman Rein began questioning him. Initially, petitioner provided an exculpatory version of events and accused Jerry Steuerman, Seymour Tankleff's former business partner, of the crimes in question. At approximately 11:45 a.m., however, McCready devised a stratagem to test petitioner's veracity.

 This stratagem took advantage of the fact that Seymour Tankleff initially had survived and had been taken to the hospital. Detective McCready staged a pseudo telephone call to the hospital to which Seymour Tankleff had been taken and said, in a voice loud enough to be overhead, "Yeah, John, yeah. You're kidding? No kidding, he came out. Okay. Thanks a lot." (Tr. at 2887-2888, 3486-3487.) McCready then advised petitioner that Seymour Tankleff had come out of a coma and had accused petitioner of being the assailant. McCready testified, "I told him that his father told Detective Pfalzgraf [stationed at the hospital] that he, Marty, was the one who did this to his father; that he beat and stabbed his father." (Tr. at 2887, 3486, 3819-20.) At this time, the detectives had not advised petitioner of his constitutional rights to counsel and to remain silent.

 Petitioner's first response was to attempt to reconcile his prior exculpatory version with his father's putative accusation. He said, "If my father said that, that's because I'm the last person he saw." (Tr. at 2887, 3487.) Detective Rein then stated, "Marty, maybe your father was conscious when you came in and stabbed him." (Tr. at 2887.) At this point, petitioner volunteered to take a lie detector test, but the police refused his request. (Tr. at 3823.) Detective Rein continued the questioning by asking, "What do you think we should do to the person who did this to your mother and father?" (Tr. at 3487.) At this point, petitioner responded, "Whoever did this needs psychological help." (Tr. 2287-88, 3487-88, 4156.) After this statement, petitioner continued speaking. He asked, "Could I have blacked out and done it?" (Tr. 2887, 3487.) Detective Rein then asked whether petitioner thought he had blacked out. Petitioner responded, "that it wasn't him, but it was like another Marty Tankleff that killed them." (Id.) Then petitioner asked, "Could I be possessed?" and Detective Rein responded "Marty, I think that's what happened to you." (Id.) Finally, at approximately 11:54 a.m., petitioner said, "It's coming to me." (Tr. at 2887-88, 3487-88.) At this point, Detective McCready intervened and advised petitioner of his constitutional rights. At approximately 11:56 a.m., petitioner made a full confession. (Tr. 2892, 3490, 4156.)


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