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October 11, 2001


The opinion of the court was delivered by: Narrero, Judge



On July 16, 1986 the decomposed body of Ms. Veora Turner ("Turner") was found stuffed in a refrigerator located in an abandoned building in the Bronx. Turner had been reported missing in 1985 and at the time her body was identified she had been dead for approximately one year. The coroner determined that the cause of death was strangulation. Along with the body police found a wire ligature that investigators suspected was used to strangle Turner before her body was placed inside the refrigerator.

Detective Michael Burke ("Burke") was assigned to investigate Turner's death. In 1987, police in New Jersey spoke with a man named Gregory Capers ("Capers") who stated in connection with an investigation into other crimes that in 1986 his childhood friend, Crawford, had told him that he had strangled a woman named "Veora" in the Bronx. Contacted by New Jersey police, Burke interviewed Capers about his statements. Capers agreed to cooperate with Burke's investigation of Turner's death. Specifically, he undertook to visit Crawford, who was then imprisoned in a Georgia correctional facility on another conviction, and to record his conversation with Crawford. To this end, Capers requested an invitation to visit Crawford and Crawford put Capers on his visitor list.

Accompanied by Burke, Capers traveled to Georgia. He was wired by Burke with a recorder that Capers was unable to control once it was activated. Capers's visit with Crawford occurred in a separate room occupied by only the two of them, with a guard stationed outside a closed door containing a glass panel. During the recorded conversation, Crawford admitted to and described the murder of Turner in substantial detail corresponding to the manner of her death, and the place and circumstances in which her body had been discovered.

Before trial, Crawford's attorney sought to suppress the tape recording at a hearing conducted pursuant to People v. Huntley, 204 N.E.2d 179 (N.Y. 1965). At the hearing, Crawford asserted that because Capers was acting as a law enforcement agent for the government, Capers should have administered Miranda warnings before conversing with him. State Supreme Court Justice Leslie Crocker Snyder (the "Trial Justice"), rejected Crawford's argument. The Trial Justice, finding that Burke was credible, made factual findings consistent with his testimony. Then, following Illinois v. Perkins, 496 U.S. 292 (1990), she found that the conversation between Capers and Crawford was not a "custodial interrogation" requiring Miranda warnings because Crawford was unaware of Capers's status as police agent and because Crawford "clearly relished `boasting'" to "Capers" about the murder. People v. Crawford, 578 N.Y.S.2d 814, 820 (N.Y. Sup. Ct. 1991). Subsequently, the tape recording were used at trial.

Crawford apparently then made a collateral attack to his conviction, raising the same grounds for relief as are at issue here, in state court under N.Y. Crim. P. Law § 440.10. However, the documents comprising the petition were lost and, despite Crawford's diligent efforts to pursue it, the state courts never decided the petition. Crawford filed the instant petition with this Court in October 1998. Respondent (the "State") moved to dismiss the petition, claiming it was time- barred and precluded for failure to exhaust state remedies. Based on demonstrable evidence that the papers constituting Crawford's 440.10 submission were duly filed with the state courts but lost, and that his petition would remain unresolved despite Crawford's efforts, this Court ruled that the instant petition was not time-barred and that the State may not rely on exhaustion of State remedies as its defense to the petition. See Crawford v. Artuz, 116 F. Supp.2d 442 (S.D.N Y 2000)



1. Degree of Deference Owed to State "Adjudication on the Merits"

A district court may grant an application for a writ of habeas corpus on behalf of a person in custody pursuant to a state court judgment if that state court adjudication either "(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. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 376 (2000) Where federal claims were not "adjudicated on the merits" a district court may examine pure questions of law and mixed questions of law and fact de novo. See Washington v. Schriver, 255 F.3d 45, 54-55 (2d Cir. 2001)

The choice of an appropriate standard of review is not automatic in this case. The habeas corpus statute, as amended, does not clearly identify a standard of review and the circuit courts disagree over the deference to be given to state court decisions. Compare, e.g., Bell v. Jarvis, 236 F.3d 149, 163 (4th Cir. 2000) (en banc), petition for cert. filed (U.S. Mar. 29, 2001) (No. 00-9290); Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999); Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999), with Hameen v. Delaware, 212 F.3d 226, 248 (3d Cir. 2000), cert. denied, ___ U.S. ___ (2001); see also Washington, 255 F.3 at 53 (summarizing the split regarding when a state court decision constitutes an "adjudication").

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