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September 30, 2002


The opinion of the court was delivered by: Young, District Judge[fn1] [fn1] Of the District of Massachusetts, sitting by designation.



The government countered with a motion to dismiss on the ground that Grate's petition was not timely under the one-year limitations period established for section 2254 petitions, 2244(d)(1). See Docket Nos. 23, 24. The Court denied the motion on grounds that Grate had filed his initial petition within the one-year grace period after the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") established in this Circuit by Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998),*fn2 and that the time Grate's petition spent in federal court under consideration did not count for purposes of calculating whether his 2254 petition was timely under 28 U.S.C. § 2244 (d)(2), see Seybert Mem. at 5, 7 (citing Walker v. Artuz, 208 F.3d 357 (2d Cir. 2000), rev'd sub nom. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)).*fn3

The government responded with an Affidavit and Memorandum of Law in Opposition to Grate's Petition. Having received the government's opposition papers, the Court is now prepared to consider Grate's arguments on the merits.


A. Grate's Voluntariness Claim

Grate's first argument in support of his petition is that the confession he gave to police on July 30, 1984 was involuntary and the product of excessive police coercion, and thus taken by the police in violation of the Fifth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment. Pet. ¶ 12(A). In that statement, which was written down "by the police, read to Grate after he appeared to have difficulty reading it himself, and signed by him, Resp't's Opp'n Ex. 3 (Government's brief on direct appeal to the Second Department) at 8, 12, Grate admitted to shooting the victim in the case, Arthur Licurse ("Licurse"), accidentally during the course of robbing General Oil Distributors in East Rockaway, New York, along with an accomplice, Charles Clink ("Clink"). See generally id. at 13-17 (reprinted version of Grate's statement); id. Ex. 1 (Brief of Grate's attorney on direct appeal to the Second Department), at Ex. B (original version of Grate's statement, handwritten by the police).

The government responds to this argument by stating that Grate never raised this argument at trial, and thus cannot be allowed to raise this claim on collateral review in federal court. In the government's view, the sentence in the decision of the Second Department rejecting Grate's voluntariness claim on direct appeal — "We have examined the defendant's remaining contentions, including those raised in this supplemental pro se brief, and find them to [be] either unpreserved for appellate review or without merit," People v. Grate, 155 A.D.2d 553, 554, 547 N.Y.S.2d 584 (2d Dep't 1989) — constitutes an independent and adequate state ground for the Second Department's rejection of Grate's Fifth Amendment claim, and thus bars a federal court from entertaining the claim.

It is generally true, as the government suggests, that when a defendant fails to raise a federal constitutional issue at trial, and is told by an appellate court that the issue will not be considered on appeal because the defendant failed to raise it below, the decision of the state appellate court constitutes an independent and adequate state law ground for rejecting the defendant's federal claim that bars a federal court from considering the issue on collateral review. Coleman v. Thompson, 501 U.S. 722, 729-32, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). It is also generally true that, when an appellate court affirms without explanation an argument by the government that a defendant's claim is both unpreserved for appellate review and meritless, the appellate court's decision should be presumed to rest on state procedural grounds. E.g., Epps v. Comm'r of Corr. Servs., 13 F.3d 615, 618 (2d Cir. 1994).

These rules have no application here, however, because Grate did in fact raise the issue of the voluntariness of his confession several times — at a suppression hearing, Suppression Hr'g Tr. at 557-86, at a pre-trial hearing, Pre-Trial Hr'g Tr. at 42-44, at trial, Trial Tr. at 461-69, 479-90, and on direct appeal, Resp't's Opp'n Ex. 1 (Brief of Grate's attorney on direct appeal to the Second Department), at 37-40; id. Ex. 2 (Grate's pro se supplemental brief), at 16-21. The trial judge wrote an opinion deciding matters raised at the suppression hearing that addressed, among other things, "the validity of the statement[] taken from the defendant[]." Id. Ex. 3 (Government's brief on direct appeal to the Second Department), at Ex. 1, p. 1 (Findings of fact and conclusions of law by the trial court on Grate's motion to suppress). The trial court ultimately concluded that Grate's statement was admissible at trial. Id. at p. 6. This suffices, in this Court's view, to establish that Grate did make an issue of the voluntariness of his confession at trial, even if, as the government suggests, Grate did not object to the admission of Grate's statement at the trial itself, Resp't's Opp'n at 13.*fn4 He has not defaulted on this claim, and the Court will proceed to consider it.

That this Court will proceed to the merits of Grate's Fifth Amendment voluntariness claim does not mean, however, that the Court will make its own independent determination of whether Grate voluntarily confessed to the police. Prior to the enactment of AEDPA, the Supreme Court held with respect to the voluntariness of a confession that a federal court investigating the issue on habeas was empowered to opine de novo on the ultimate legal question of the voluntariness of a confession, even though it had to apply a "presumption of correctness" to state court findings of predicate facts, such as whether the police engaged in intimidation tactics. Miller v. Fenton, 474 U.S. 104, 112, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985).

The landscape has changed since enactment of AEDPA, however. What remains the same is that a federal court conducting a collateral review must still presume state court findings of fact to be correct, 28 U.S.C. § 2254 (e), although it is probably harder now for a habeas petitioner to overcome this presumption, as the petitioner must now present clear and convincing evidence that the finding of fact was erroneous, id. But what has changed significantly in light of AEDPA is that a federal court exercising its habeas jurisdiction over a petitioner's federal claim that was adjudicated in state court "on the merits" may not disturb the state court judgment unless the decision "involved an unreasonable application of[] clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254 (d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2).*fn5 In both of the relevant provisions of section 2254(d), the key word is "unreasonable." The Supreme Court has held that the word unreasonable found in section 2254(b)(1) means something worse than merely "erroneous" or incorrect." Williams v. Taylor, 529 U.S. 362, 410-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, it means that a state court must have applied extant Supreme Court case law or found facts based on the evidence presented to it in an objectively unreasonable manner before a federal court may overturn the state court's decision. Id. at 409, 120 S.Ct. 1495.*fn6

Prior to AEDPA, then, a federal court exercising its power to grant writs of habeas corpus could decide questions of law or mixed questions of law and fact — such as the voluntariness of a confession — de novo, even if it was required to presume that state court findings of fact were correct. After AEDPA, however, so long as the issue has been raised and decided in state court on the merits, it appears that, even with respect to mixed questions of law and fact, the federal court may overturn the decision of the state court only if the decision was objectively unreasonable. Cf. Sellan v. Kuhlman, 261 F.3d 303, 314 (2d Cir. 2001) (applying deferential "unreasonable application" standard of section 2254(d)(1) to a claim of ineffective assistance of counsel claim, despite the fact that, prior to AEDPA, the effectiveness of counsel, like the voluntariness of a confession, was a mixed question of law and fact that a habeas court adjudicated de novo, Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). With this deferential standard in mind, the Court turns to Grate's voluntariness claim.

Grate was stopped by Detectives Robert Dempsey ("Detective Dempsey" or "Dempsey") and James Dempsey ("Detective James Dempsey") in the Bronx at around 1:30 p.m. on July 30, 1984. Suppression Hr'g Tr. at 280. Detective Dempsey identified Grate walking on the street based on a photograph of Grate from a prior arrest card that Detective Dempsey brought with him in the police cruiser after learning from Clink, Grate's accomplice in the crime, that Grate was the trigger man in the robbery-turned-homicide. Id. at 280-81, 276. Detective Dempsey got out of his police cruiser, stopped Grate, placed him under arrest for murder, and placed him in the police cruiser. Id. at 281-82. At that time, Dempsey noticed that Grate had sutures sticking out of his ear. Id. at 565. He asked Grate what happened; Grate said that his jaw had been broken in a fight with "some Puerto Rican guy who hit him in the face or the jaw with a brick." Id. Grate also told Dempsey that his jaw was wired, id., although this fact apparently did not prevent Grate from communicating effectively with the detectives. As the detectives were driving Grate from the Bronx to the Nassau County homicide squad headquarters in Mineola, and before Grate had been apprised of his Miranda safeguards, Detective Dempsey told Grate that "we knew the whole story, that we had arrested Charles Clink and Charles Clink told us that [Grate]'s the one who shot the dispatcher in the oil depot." Id. at 282. Grate said nothing in response, and no other conversation took place between the detectives and Grate. Id.

The detectives and Grate arrived at the homicide squad headquarters at around 2:45 pm. Id. Detective Dempsey seated Grate at a chair opposite a wooden desk in a vacant office, id. at 283,*fn7 and handcuffed him to the chair, id. at 573. Shortly thereafter, Dempsey apprised Grate of his constitutional rights. Id. at 283.*fn8 After mentioning each constitutional protection, Dempsey asked Grate if he understood it. Id. at 283, 568. Grate replied that he did. Id. Dempsey then asked Grate if he was willing to talk about what happened without a lawyer or others present; Grate said yes. Id. at 283, 568-69.

Detective Dempsey then reiterated his earlier statement to Grate that "Charles Clink told us how this murder went down and [h]ow you took that gun, put it in that boy's back and you pulled the trigger after smiling." Id. at 283. At this point, Grate broke down and cried. He said "Let me tell my side of the story, man. I'm no murderer. You got to believe me. It was an accident." Id.*fn9

Over the course of the next hour and a half to two hours, Grate orally gave his version of the events to Detective Dempsey, answering questions about what happened at the scene of the crime. Id. at 571-72, 284. Dempsey then asked Grate if he was willing to give a written statement recounting what he had just told Dempsey orally; Grate said yes. Id. at 284. At around 4:00 pm, Dempsey began taking down a written statement from Grate. Id. at 574. Dempsey would ask Grate a question, Grate would answer, and Dempsey would record the answer in the process of compiling a narrative of the events. Id. at 284. After Dempsey completed the statement, he handed it to Grate and asked Grate to read it. Id. at 285. After Grate informed Dempsey that he had difficulty reading, however, Dempsey asked Grate if Grate wanted Dempsey to read the statement out loud; Grate said yes. Id. Dempsey read the statement in its entirety to Grate and asked him if it was the truth; Grate said that it was. Id. Dempsey then asked Grate to sign the statement, and watched as Grate signed each page. Id. The written statement was completed at around 5:50 pm. Id. at 286.

During the interview, the police allowed Grate to use the restroom several times. Id. at 573. While Grate was at the homicide squad headquarters, but after he signed the written statement, he was allowed to make several phone calls. Id. at 287. After the interview, the police took Grate to dinner en route to a store in the Bronx where Grate said he had given away the murder weapon. Id. at 288-89. Throughout the interview, Grate made no complaints to Detective Dempsey regarding the conditions of his interrogation. Id. at 573.

Based on these facts adduced at the suppression hearing, the trial court concluded that Grate's statement was admissible. The trial judge made the following findings of fact:

Grate was arrested on July 30, 1984 at 1:30 pm in the Bronx by Dempsey. Grate was brought back to Nassau County. . . .
Grate was advised of his rights and told that Clink had talked. He started to cry and said it was an accident, that the gun went off accidently [sic]. The hammer had been cocked when he got the gun from Clink. He gave a statement that was written down in a narrative. When it was given to him to read he had difficulty so Dempsey read it to him. He then signed it as did Dempsey. It was completed at about 5:50 pm.
While at headquarters [Grate] made two phone calls. One to [his girlfriend] Renee about 7 pm and another to his father in the bronx [sic].

Resp't's Opp'n Ex.3 (Government's brief on direct appeal to the Second Department), at Ex. 1, p. 4 (Findings of fact by the trial court on Grate's motion to suppress). Because these findings of fact are not unreasonable in light of the record as reviewed by this Court, the Court will not disturb them under 28 U.S.C. § 2254 (d)(2). Grate has done nothing to rebut the presumption of correctness with respect to these findings, see id. § 2254(e)(1), so the Court presumes them to be correct.

Other facts adduced at trial bear on the voluntariness inquiry. Thomas Darnowski ("Darnowski"), an administrator at a special education school that Grate attended until 1980, Trial Tr. at 726-27, 729, 733, testified about Grate's performance in school as well as his educational abilities. Darnowski testified that Grate had an IQ between the mid-70s and low-80s, id. at 732, which Darnowski characterized as "dull normal" and "borderline" mentally retarded, id. at 732. When Grate left school, he was performing at the second grade level in terms of reading ability. Id. at 733. Darnowski also indicated that Grate was possibly dyslexic. Id. With respect to Grate's statement written down by Detective Dempsey, Darnowski opined that "[t]he type of language used, the sentence structure, the grammar . . ., the descriptive words used" were too complex to have been written by Grate. Id. at 764. Darnowski also presumed that Grate would have been unable to read it by himself. Id. Darnowski did admit on cross-examination, however, that Grate would be able to understand and respond to concrete questions. Id. at 767-68. He also acknowledged on cross-examination the report of a psychologist which indicated that Grate had "street knowledge," id. at 781, and a "potential intelligence [that] would seem to be higher than his tested IQ," id. at 782.

The important question for purposes of Grate's voluntariness claim is whether, assuming these facts to be true, the decision of the trial court to admit Grate's confession after the suppression hearing and at trial was a reasonable one in light of the clearly established law of voluntariness as announced by the Supreme Court. 28 U.S.C. § 2254 (d)(1). Though not a Supreme Court case, the Second Circuit's decision in Green v. Scully, 850 F.2d 894 (2d Cir. 1988), contains a useful summary of the voluntariness standard articulated by the Supreme Court:

No single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances. . . .
In applying the totality of the circumstances test, those factors that a court should consider to determine whether an accused's confession is voluntary center around three sets of circumstances: (1) the characteristics of the accused, (2) the conditions of interrogation, and (3) the conduct of law enforcement officials. The relevant characteristics of the individual who confessed are the individual's experience and background, together with the suspect's youth and lack of education or intelligence. See Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. The second circumstance, the conditions under which a suspect is questioned, includes the place where an interrogation is held, Mincey [v. Arizona], 437 U.S. 385, 398, 98 S.Ct. at 2416, 57 L.Ed.2d 290 [(1978)] ("It is hard to imagine a situation less conducive to the exercise of `a rational intellect and a free will' than [interrogation in a hospital's intensive care unit]."); see also Bram [v. United States], 168 U.S. [532,] 563, 18 S.Ct. at 194, 42 L.Ed. 568 [(1897)], and the length of detention, Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. The presence or absence of counsel is a significant condition because counsel can "assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process." Miranda [v. Arizona], 384 U.S. [436,] 469, 86 S.Ct. at 1625[, 16 L.Ed.2d 694] [(1966)].
The final and most critical circumstance for purposes of this appeal is the law enforcement officers' conduct. Facts bearing on that conduct include the repeated and prolonged nature of the questioning or the failure to inform the accused of his constitutional rights, Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047; whether there was physical mistreatment such as beatings, see Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); or long restraint in handcuffs, and whether other physical deprivations occurred such as depriving an accused of food, water or sleep, see Schneckboth, 412 U.S. at 226, 93 S.Ct. at 2047; or even of clothing, see Bram, 168 U.S. at 561, 18 S.Ct. at 194 (suspect was taken to police detective's office and there "he was stripped of his clothing") for a prolonged period. In addition — as specifically raised in the instant case — such police conduct might include psychologically coercive techniques such as brainwashing or promises of leniency or other benefits.

Id. at 901-02. (Second Circuit citations omitted).

Against this legal standard, it is clear that the decision of the trial court to admit Grate's confession was not unreasonable. To be sure, Grate was quite young at the time he was arrested (20 years old, see Resp't's Opp'n Ex. 1 (Brief of Grate's attorney on direct appeal to the Second Department), at Ex. B, p. 1 (original version of Grate's statement, handwritten by the police)). He also has a very low IQ, and his reading and writing abilities appear to be quite poor. He was characterized by one evaluator as having "street knowledge," Supp. Hr'g Tr. at 781, however, and he appeared to have had prior experience with the criminal justice system at the time of his arrest, as evidenced by the fact that Detective Dempsey was able to pull a photograph and arrest card of Grate from police records as a means to identify him on the street at the time of his arrest, id. at 280-81, 276.

Nothing about the conditions of the interrogation itself suggest that Grate's will was overborne. He apparently was handcuffed from the time he was arrested until the time Detective Dempsey completed the written statement. On at least one occasion during the interview, however, he was allowed to get up and go to the bathroom. Later, he was allowed to call a girlfriend and his father, and was taken to dinner. Importantly, at no time during the interview did Grate complain of the conditions of his interrogation. He did not take the witness stand, at the suppression hearing or at trial, to counter the version of events inside the interrogation room put forth by Detective Dempsey.

Finally and most importantly, no aspect of the police conduct during the interrogation suggests that Grate was coerced into giving a confession. There are no allegations that the police beat Grate, confronted him with trumped-up or false evidence, or made false offers of leniency to him in exchange for his confession. The only tactic they used was to confront Grate with an actual statement already given to the police by Clink suggesting that Grate killed Licurse deliberately. The police then read Grate his rights, asked if he wished to speak to them, and gave him an opportunity to respond to Clink's statement. What followed was Grate's version of the story.

Nothing in this litany of characteristics of the police interrogation of Grate suggests to this Court that the trial court's application of the Supreme Court's totality-of-the-circumstances standard to the facts of this case was erroneous, much less unreasonable. The ...

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