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April 2, 1998

ERIC M. SMITH, Petitioner,
PATRICK SULLIVAN, Director, Brookwood Secure Center, Respondent.

The opinion of the court was delivered by: LARIMER


 Petitioner, Eric M. Smith, while in custody at Brookwood Secure Center, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Smith was convicted at a jury trial in Steuben County Court on November 7, 1994 of one count of murder in the second degree. He was sentenced to a term of incarceration from nine years to life.

 Petitioner appealed his conviction to the Appellate Division, Fourth Department, which affirmed his conviction on November 15, 1995. People v. Smith, 217 A.D.2d 221, 635 N.Y.S.2d 824 (4th Dep't 1995). The Court of Appeals denied leave to appeal on February 6, 1996. Petitioner also filed a motion to vacate his conviction under N.Y. Crim. Proc. L. § 440.10 in Steuben County Court. That court denied his motion on August 20, 1997, and the Appellate Division denied leave to appeal on November 12, 1997. In addition, petitioner sought a writ of error coram nobis from the Appellate Division, which denied that application on September 30, 1997.

 The petition in this case was filed on November 17, 1997. Petitioner alleges that his conviction was obtained in violation of several of his constitutional rights, which will be discussed in detail below. Because I believe that no errors implicating the Constitution occurred at petitioner's trial, the petition for habeas corpus relief must be dismissed.


 The relevant facts in this case, which are for the most part not in dispute, are extensively set forth in the decision of the Appellate Division, familiarity with which is assumed. In short, the evidence in the record shows that on the morning of August 2, 1993, in Savona, New York, petitioner, who was then thirteen years old, encountered four-year-old Derrick Robie, who was walking by himself to a nearby park. Smith, who knew Robie, persuaded him to take a "shortcut" to the park through a wooded area. Once they had reached a secluded spot, Smith put his arm around Robie's throat from behind and began choking him. Robie eventually stopped resisting, whereupon Smith let him fall to the ground. Smith then threw a large rock on Robie's head several times. Smith left the scene shortly thereafter.

 When Robie failed to return home from the park, his mother reported him missing, and police found his body that afternoon. The State Police immediately took charge of the investigation, and over the next several days, police interviewed some 500 witnesses. On the morning of August 5, Smith and his mother went to the police command post to offer information that Smith's mother thought might be helpful in the investigation. Smith stated that he had been in and out of the park three or four times on the morning of August 2, but he had not seen Robie.

 At about 5:00 p.m. on August 5, investigators went to Smith's home and interviewed him, with his parents' permission, to clarify some minor discrepancies between Smith's statements and those of other witnesses. The interview took place at a picnic table in the Smiths' yard. During that interview, which lasted forty-five to fifty minutes, Smith revealed for the first time that, while riding near the park on August 2, he had in fact seen Robie walking on the other side of the street, not far from the murder scene. Smith's account of seeing Robie, however, put Robie some fifty to seventy-five yards away from the area where other witnesses said they had seen him. Upon hearing that, the officer who was conducting the interview pressed the point further, asking Smith exactly where he had seen Robie. At one point during this discussion, Smith spontaneously burst out, "You think I killed him, don't you?" State Court Record ("R.") at 1525. *fn1" The officer replied that he did not think that at all, but merely wanted whatever information Smith had. Smith then said, "I'm not the type of person that would kill, hurt or sexually molest anyone." R. at 1526.

 Again the officer assured Smith that he did not think Smith was involved in the murder, and the interview continued. Smith described Robie's clothing and lunch bag in some detail, which prompted the police to have Smith perform an impromptu eye test by trying to read nearby house numbers and automobile license plates. Smith was not able to see very well because he was not wearing his glasses, which had broken several weeks earlier. After the officers asked Smith a few more questions, Smith's great-grandfather, a retired sheriff's deputy, asked the officers to leave, which they did.

 About an hour later, at 7:00 p.m., State Police investigators, accompanied by Steuben County District Attorney John Tunney, returned to Smith's home to ask if they could resume the interview. The officers assured Smith's great-grandfather that they were not accusing Smith, but merely trying to obtain accurate details from him, since he was the last known person to have seen Robie alive. Ultimately, the family agreed to allow Eric to accompany the police to the spot where Smith said he had seen Robie, so that Smith could reenact his movements and observations on August 2, the day of the murder.

 During the reenactment, Smith pointed out where he had seen Robie, but he could make out only the outline of an investigator playing the role of Robie. Because it was getting dark, the parties agreed to return the next day to reenact the scene.

 The next morning, Smith and his great-grandfather accompanied the police to the same spot, and the reenactment was videotaped. Again there were problems with Smith's account because Smith described others' movements inconsistently, and he was unable to see or describe an object carried by the officer portraying Robie. The officers questioned whether Smith really had seen Robie, and said that they needed to know before wasting time pursuing a false lead.

 Police investigators subsequently interviewed Smith for two hours at their command post in the presence of Smith's great-grandfather. During the interview, Smith equivocated whether he had seen Robie. At the end of the interview, the police remained unsure whether Smith had seen Robie.

 On August 8, Smith confessed to his mother, grandfather, and great-grandfather that he had killed Robie. Through an intermediary, Smith's great-grandfather arranged a meeting between himself and District Attorney Tunney at the Steuben County Office Building in Bath, New York. Smith's great-grandfather told Tunney that he wanted to handle the matter as "peaceful and as quiet as we can," and specifically asked to avoid the involvement of the State Police, the prospect of public arrest, and the possibility of a grand jury proceeding or other preliminaries. Tunney, however, persuaded Smith's great-grandfather that the State Police had to take Smith's statement. Tunney called for Bureau of Criminal Investigation Captain Walter DeLap to come to Tunney's office, and Smith's great-grandfather called his family to have Smith brought there.

 Smith was taken to Tunney's office by his mother, stepfather, and grandfather shortly after 10:00 p.m. The family decided that only Smith's stepfather and great-grandfather would stay with Smith while he was being questioned by DeLap. Tunney left the room before the interview began because, as he had earlier explained to Smith's great-grandfather, he would have to prosecute the case and did not want to witness the statement. There is no evidence that the authorities ever promised that Smith would not be prosecuted criminally, though they did acknowledge to Smith's family that he needed psychiatric help and that he would be evaluated within a few days.

 At the outset of the interview, DeLap sat directly across from Smith and explained the "ground rules" of the questioning, specifically that both Smith and DeLap must speak the truth. DeLap later testified that he gave Smith his Miranda warnings as follows:

You have the right to remain silent. ... That means you don't have to talk to me. ... Furthermore, that is only the first part of that. If you give up the right to remain silent, anything you say, good or bad, can be used in a court of law or used anywhere against you. If it goes against you, so be it. ... That means you don't have to talk to me and if you do and it goes against you, so be it, but it will be the truth so it's not bad. ... Also you have the right to an attorney.

 DeLap testified that he asked Smith whether he knew what an attorney was, and Smith said that he did not. DeLap told him, "It's a lawyer. Do you know what a lawyer is? Okay." DeLap then continued:

You have a right to a lawyer. That means you have the right to a lawyer right now. We can stop right now and you can go buy a lawyer, have yourself a lawyer. If you can't afford one or your mom and dad can't afford one because they don't work or [are] out of work, whatever the case may be, one will be appointed to represent you before any questions.

 R. at 464-66.

 DeLap testified that several times while he was advising Smith of his rights, DeLap asked Smith if he understood what DeLap had just told him, and that Smith nodded, said, "Yes," or said, "I understand." R. at 467. DeLap also stated that he asked Smith's stepfather and great-grandfather if they understood and that they stated that they did. R. at 265-66.

 Over the next three hours, Smith gave his account of the murder, the details of which were consistent with the physical evidence found at the scene. At no time did either Smith or his family ask to stop the interview or request a lawyer. Smith's confession was then typed as DeLap dictated from his interview notes. Smith suggested a minor change to the statement, initialed each page, and then signed the statement, as did each of the adults present. The statement also stated that Smith had been advised of his rights to remain silent, to an attorney, and to stop the interview at any time, and that he "freely and voluntarily gave up those rights ..." R. at 1675-77.


 I. Admission of Petitioner's Statements to Police

 Petitioner alleges that his Fifth Amendment right against self-incrimination was violated because his confession to DeLap was not made knowingly and intelligently. Petitioner contends that the warnings given to him by DeLap were inadequate, and that there was no unambiguous statement by Smith expressing a knowing and voluntary waiver of his rights.

 As a threshold issue, I must determine the appropriate standard of review here, since both the trial court and the Appellate Division made a number of findings concerning Smith's confession. Both courts concluded that Smith waived his rights and confessed knowingly and voluntarily. Both courts also made certain findings about the circumstances under which Smith gave his confession.

 State court findings of "historical" facts, and inferences drawn from those facts, are entitled to a presumption of correctness. Matusiak v. Kelly, 786 F.2d 536, 543 (2d Cir.), cert. denied, 479 U.S. 805, 93 L. Ed. 2d 172, 107 S. Ct. 248 (1986). Section 2254(d) of Title 28 provides that a habeas corpus petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of that 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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

 Section 2254(e)(1) also states that "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." The presumption of correctness attaches to findings both by state trial courts and by state appellate courts. Nevius v. Sumner, 852 F.2d 463, 469 (9th Cir. 1988), cert. denied, 490 U.S. 1059, 104 L. Ed. 2d 441, 109 S. Ct. 1972 (1989).

 Prior to the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, which substantially amended the habeas corpus statutes, § 2254(d) provided that a state court "determination after a hearing on the merits of a factual issue ... shall be presumed to be correct," unless certain specified exceptions existed. AEDPA, then, changed the language dealing with the presumption of correctness of state court findings of fact and moved it to § 2254(e), and also added the current version of § 2254(d). The new version of § 2254(d) has clearly raised the bar for habeas petitioners, placing on them the burden to show by clear and convincing evidence that the state court decision was defective in some way. The amended statute "requires federal courts 'to give greater deference to the determinations made by state courts than they were required to do under the previous law.'" Ford v. Ahitow, 104 F.3d 926, 936 (7th Cir. 1997) (quoting Emerson v. Gramley, 91 F.3d 898, 900 (7th Cir. 1996) cert. denied, 117 S. Ct. 1260 (1997)); see also Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997) ("AEDPA increases the deference to be paid by the federal courts to the state court's factual findings and legal conclusions").

 Prior to AEDPA, courts in habeas cases involving the voluntariness of a waiver and confession had held that state court findings that a defendant was given and understood his Miranda rights were presumed correct, but that the ultimate issue of the voluntariness of a waiver or confession was subject to de novo review. See, e.g., Carter v. Johnson, 131 F.3d 452, 461-62 (5th Cir. 1997); Derrick v. Peterson, 924 F.2d 813, 822 (9th Cir. 1990), cert. denied, 502 U.S. 853, 116 L. Ed. 2d 126, 112 S. Ct. 161 (1991).

 Despite the language of the present version of § 2254(d), petitioner contends that this court should review de novo the issue of whether he voluntarily waived his rights and confessed to Robie's murder. On the contrary, I believe that de novo review is not the proper standard. Section 2254(d) precludes habeas relief on a claim that was adjudicated on the merits by a state court unless the adjudication itself was contrary to or unreasonably applied clearly established federal law, or was "based on an unreasonable determination of the facts ..." Under the new standard, then,

federal habeas courts are no longer authorized to exercise de novo review over the ultimate issue of voluntariness, a mixed question of law and fact. Instead, [the court is] obliged to respect the judgment of the state court, provided it does not constitute an "unreasonable ...

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