The opinion of the court was delivered by: Young, District Judge[fn1] [fn1] Of the District of Massachusetts, sitting by designation.
Daryl Grate ("Grate") petitions this Court for a writ of habeas corpus
to 28 U.S.C. § 2254 ("section 2254"). He asks this Court to overturn
his conviction for second degree murder and first degree robbery after a
trial by jury in Nassau County Court in 1985. He advances four reasons
why his conviction should be vacated: (1) The confession he gave to
police on July 30, 1984 was involuntary, in violation of his rights under
the Fifth and Fourteenth Amendments to the United States Constitution,
Pet. ¶ 12(A) [Docket No. 1]; (2) The admission at trial of a statement
made by a codefendant violated his rights under the Confrontation Clause
of the Sixth Amendment, id. ¶ 12(B); (3) His appellate counsel was
ineffective for failing properly to frame the Confrontation Clause
issue, which caused the Second Department of the New York Supreme Court,
Appellate Division (the "Second Department") perfunctorily to dismiss
Grate's claim with respect to this issue on direct appeal, id. ¶ 12(C);
and (4) His appellate counsel was ineffective for failing to argue before
the Second Department that the prosecution exercised peremptory
challenges against prospective jurors on the basis of race, in violation
of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
(1986), see Memorandum & Order at 10 and n. 2, Grate v. Stinson,
97-CV-2236 (JS) (E.D.N.Y. May 5, 2000) (Seybert, J.) ("Seybert Mem.")
[Docket No. 30] (allowing Grate to amend petition to include Batson
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
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).
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
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
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
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.
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].
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
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
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
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.