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DEFEO v. ARTUZ

March 17, 1997

RONALD JOSEPH DEFEO, JR., Petitioner, against CHRISTOPHER ARTUZ, et al., Respondents.


The opinion of the court was delivered by: WEXLER

 WEXLER, District Judge,

 Pro se petitioner Ronald J. DeFeo, Jr. brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, his third such petition in this Court. Respondents oppose the petition.

 I. BACKGROUND

 
In November 1974, the defendant was living with his two parents, two sisters and two brothers at 112 Ocean Avenue in Amityville, New York. He was employed at his grandfather's automobile agency in Brooklyn, and commuted to work there daily. In the early morning hours of November 13, 1974, the defendant shot and killed his parents and four siblings as they lay in their beds, with a .35 caliber Marlin lever action rifle. After cleaning up and collecting incriminating evidence, including clothing, the expended cartridge cases and other items, he left the house and threw the rifle into the water at the foot of Ocean Avenue. Enroute [sic] to Brooklyn, he placed the incriminating items in a storm drain and then went to the automobile agency. He drove back to Amityville in the afternoon, entered the house and then told friends that everyone in the house was dead. During the ensuing police investigation, he initially told police that the killing had been done by a mob hit-man. Subsequently, on the afternoon of November 14, 1974, he gave an oral statement to the police admitting he had killed his family and telling them of the location of the rifle and the secreted evidence.

 See People v. DeFeo, Indictment No. 1251/74, at 1-2 (N.Y. Sup. Ct., Suffolk County, Jan. 6, 1993) (the "January 6, 1993 Order"). Petitioner testified at trial and admitted that he killed his family, allegedly in self-defense, believing they planned to kill him, and that he acted alone. He was sentenced in December 1975 to six consecutive indeterminate terms of incarceration of twenty-five years to life.

 On March 27, 1978, the Appellate Division, Second Department, unanimously affirmed the conviction, see People v. DeFeo, 403 N.Y.S.2d 165 (2d Dep't 1978), and on May 23, 1978, the Court of Appeals denied leave to appeal, see People v. De Feo, 44 N.Y.2d 952, 408 N.Y.S.2d 1032, 380 N.E.2d 342 (1978).

 Meanwhile, in December 1975, prior to his sentence, petitioner brought his first petition for a writ of habeas corpus in this Court. By Memorandum and Order dated December 1, 1975, Judge Weinstein dismissed the petition for failure to exhaust state remedies. See United States ex rel. DeFeo. v. Warden, Suffolk County Jail, No. 75C 2025 (E.D.N.Y. Dec. 1, 1975). Petitioner brought his second petition for a writ of habeas corpus in August 1982, raising two grounds: (1) denial of his Sixth Amendment right to counsel; and (2) denial of his Fifth Amendment right against self-incrimination based on an alleged failure of the police to read him his Miranda warnings. By Memorandum and Order dated May 16, 1984, familiarity with which is assumed, this Court denied the second petition on the merits. See DeFeo v. LeFevre, CV 82-2565 (E.D.N.Y. May 16, 1984). By order dated October 19, 1984, the Court of Appeals for the Second Circuit affirmed the denial of the second petition. See DeFeo v. LeFevre, No. 84-2193 (2d Cir. Oct. 19, 1984).

 In March 1990, petitioner moved before Justice Stark pursuant to § 440.10 of the New York State Criminal Procedure Law ("CPL") to vacate his conviction, principally claiming ineffective assistance of counsel because: (1) his attorney, William Weber ("Weber"), "prevented him" from presenting to the jury the true facts of what happened; (2) Weber "forced him" to present an insanity defense; (3) Weber told "many of his witnesses to falsely testify as to irrational acts" by petitioner to support the insanity defense; (4) Weber told one prospective witness, who refused to testify as directed by Weber, to "get lost"; and (5) Weber was "motivated by a plan to obtain financial rewards from book and movie rights." In deciding the motion, Justice Stark conducted an evidentiary hearing, at which petitioner testified. Justice Stark denied the motion in all respects in his January 6, 1993 Order, finding petitioner's testimony to be "false and fabricated." See January 6, 1993 Order, at 3. Justice Stark also found the following:

 
(2) William Weber did not tell Linnea and Roger Nonnewitz to testify falsely, nor did he forbid them from testifying as to their knowledge of the defendant and his family. Linnea Nonnewitz was employed as a cleaning woman for the DeFeo family for five years prior to the deaths, and testified on trial as to the normal family relationships she observed during that period.
 
(3) William Weber did not tell John Carswell and Charles Tewksbury to testify falsely and forbid them from giving truthful testimony, nor did William Weber tell Barry Springer to avoid the trial.
 
(4) During the trial, William Weber had no intent or plan to obtain book and movie rights for himself concerning the DeFeo murders. After defendant's conviction, he became involved with others in an unsuccessful venture to ...

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