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TIBBS v. GREINER

United States District Court, Southern District of New York


April 16, 2003

VIRGIL TIBBS, PETITIONER,
v.
CHARLES GREINER, RESPONDENT

The opinion of the court was delivered by: Andrew J. Peck, Magistrate Judge.

REPORT AND RECOMMENDATION

Pro se petitioner Virgil Tibbs seeks a writ of habeas corpus from his 1995 conviction in Supreme Court, New York County, following a guilty plea, of second degree murder, two counts of first degree robbery, and two counts of first degree attempted robbery, for which Tibbs was sentenced to concurrent terms totaling fifteen years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.) See People v. Tibbs, 265 A.D.2d 217, 217-18, 697 N.Y.S.2d 254, 255 (1st Dep't 1999). Tibbs' habeas petition alleges that: (1) he was interrogated before receiving Miranda warnings, and that his pre-Miranda statements tainted his post-Miranda statements; and (2) he was arrested without probable cause, so his post-arrest statements and identifications should be suppressed as fruit of an unlawful arrest. (Pet. ¶¶ 12(A)-(D) & Attachment at 1-5.)

For the reasons set forth below, Tibbs' habeas petition should be DENIED.

FACTS

Virgil Tibbs was arrested on May 26, 1993 (Hearing Transcript ["H."]: Martin: H. 244-45; Lindahl: H. 378-80), in connection with a May 23 homicide and armed robbery at a grocery store on West 114th Street in Manhattan and three other armed robberies, for which Tibbs and his co-defendant, Camar Cabness, were indicted on twenty-one charges on June 18, 1993 (Dkt. No. 7: State Answer ¶ 9 & Ex. A: Indictment; Ex. C: Tibbs 1st Dep't Br. at 4-5).*fn1

Tibbs' Pretrial Suppression Hearing

The Prosecution Case

Tibbs moved to suppress his four post-arrest statements*fn2 and two line-up identifications*fn3 (Ex. C: Tibbs First Dep't Br. at 7; H. 2.) A combined Huntley and Wade hearing*fn4 was held on April 19, 20 21, 27, 28, 1994. (See generally H. 1-43.; Dkt. No. 7: State Answer ¶ 10.)

Detective Alan Hayes was assigned to investigate the homicide of Dafir Albarati on May 23, 1993 during a robbery of at a grocery store on West 114th Street. (Hayes: H. 3.) Hayes spoke with the store's cashier, Adballa Hussein, who stated that at the time of the robbery, four men entered the store, and one of them brought a bottle of ginger ale up to the counter. (Hayes: H. 3-4, 36.) There was a "scuffle" between one of the men and Albarati, during which "[t]he person who was scuffling with [Albarati] pulled out a gun and fired twice." (Hayes: H. 5.) About an hour after the shooting, the Crime Scene Unit lifted a fingerprint from the ginger ale bottle left on the store counter. (Hayes: H. 5-6, 36.) The following day, Detective Barry informed Detective Hayes that the Latent Print Unit identified the fingerprint as Tibbs'. (Hayes: H. 6-7.)

On May 24, Detective Clarke brought Hussein from home to the Detective Squad Office after informing Hussein that he "was going to show him an array of photos to see if he could pick out any of the persons that were involved in the incident." (Clarke: H. 301-03.) Hussein selected Tibbs' photograph from the array. (H. 303.) Detective Hayes was informed about this on May 26, 1993. (Hayes: H. 7, 38.)

On May 26, 1993, Lieutenant Lindahl and Detective Martin arrested Tibbs at his parole program on Hudson Street. (Hayes: H. 40-41; Martin: H. 244-45, 251-53; Lindahl: H. 382.) They arrived at the 28th precinct with Tibbs around 4:30 p.m. and placed him in an interview room. (Martin: H. 245-46.) Detective Martin testified that neither he nor anyone else questioned Tibbs during the trip from Hudson Street to the precinct or while the officers were waiting for Detective Hayes to arrive at the precinct. (Martin: H. 246-47.) Detective Martin did not read Tibbs Miranda warnings at any time. (Martin: H. 254.)

Detective Hayes received a phone call from the 28th precinct around 6:30 p.m. that day, informing him that Tibbs was at the precinct. (Hayes: H. 7-8, 41, 419-20.) Detective Hayes arrived at the precinct around 7:30 p.m., and first spoke to Tibbs around 8:40 p.m. (Hayes: H. 8-9, 41, 420, 422.) Tibbs was alone in the interview room before Detective Hayes entered. (Hayes: H. 42.) Detective Hayes introduced himself to Tibbs as the case officer, told Tibbs the police were going to hold line-up identifications, and "let him know that he had been picked in a photo array and we had a bottle with his prints on it putting him at the scene of the crime." (Hayes: H. 9.) Tibbs began saying "we all met up at 111th Street," but Detective Hayes stopped Tibbs, got a Miranda sheet, and read it to him. (Hayes: H. 9-10, 39.) Tibbs wrote in "yes" for the "blanks after each question in the M[i]randa asking whether he understands." (Hayes: H. 10.) Both Tibbs and Detective Hayes signed the form, which was received in evidence at the hearing as People's Exhibit 1. (Hayes: H. 10-11.) Detective Hayes told Tibbs "to start his story over and just explain what happened." (Hayes: H. 11.) Tibbs provided an oral statement that Detective Hayes wrote down "[w]hen he was finished and [Detective Hayes] thought [he] understood what [Tibbs] was saying." (Hayes: H. 11-12.) Detective Hayes' written version, with the time indicated as 8:45-9:45 p.m., was signed by Tibbs and received in evidence at the hearing as People's Exhibit 2. (Hayes: H. 12-14, 46.)

Detective Hayes next began to ask Tibbs about other robberies in which he was involved and started to write Tibbs' statement about these incidents. (Hayes: H. 14.) Tibbs told Detective Hayes about several other robberies, including (1) at an Amoco Station, (2) on Lakes Avenue, (3) at a grocery store on 116th Street and 8th Avenue, (4) at a grocery store between 115th and 116th Streets, and (5) at 100th Street and 8th Avenue. (Hayes: H. 14, 16.) Tibbs stated that guns were displayed in all the robberies (Hayes: H. 17), and that Tobie Jones, Cory Miller, and Camar Cabness participated in the robberies with him (Hayes: H. 17, 22-23). Because the Manhattan Robbery Squad detectives were "feeding [Detective Hayes] questions to ask [Tibbs] about the other robberies and [Detective Hayes] couldn't keep track," Detective Hayes left the room, asked the other detectives to go in to the interview room, and did not ask Tibbs to sign the statement he had started about the other robberies. (Hayes: H. 15.)

Detective Kennedy of the Manhattan Robbery Squad arrived at the precinct around 6:45 p.m. on May 26, but did not began questioning Tibbs until around 9:45 p.m., after Detective Hayes had spoken to Tibbs. (Kennedy: H. 131-35, 154-55.) During those three hours he was doing "[b]asically nothing" because "homicide takes precedence over robberies." (Kennedy: H. 155, 166-68.) Detective Kennedy read Tibbs his Miranda rights, even though Tibbs told him, "`don't worry about it. I already got my rights from the last detective.'" (Kennedy: H. 133-35.) Tibbs denied participating in a robbery that occurred "the night before or 2 nights before up in the 25th Precinct," but did admit to two robberies of an Amoco station on Eighth Avenue. (Kennedy: H. 135-36.) Detective Kennedy was asked to stop interviewing Tibbs because the "ADA was on her way." (Kennedy: H. 137.) Detective Kennedy did not interview Tibbs any further that night. (Id.)

At around 2:00 a.m. on the morning of May 27, Tibbs gave a videotaped statement to an Assistant District Attorney, which was received in evidence as People's Exhibit 4. (Hayes: H. 23-24.)

The Defense Case

At the hearing, Tibbs called as his first witness Lieutenant Kenneth Lindahl, the "[c]ommanding officer of the 28th Squad" and "supervisor of [the] detectives in that squad." (Lindahl: H. 377-78.) Lt. Lindahl ordered Tibbs' arrest and accompanied Detective Martin to arrest Tibbs. (Lindahl: H. 379.) Lt. Lindahl testified that as of the time that Tibbs was arrested, Cory Miller was already a suspect in a homicide at the 114th Street grocery "because of the information that was delivered to the detective squad by the anti-crime officers." (Lindahl: H. 380.) However, according to Lt. Lindahl, there were no fingerprints or witness identifications connecting Cory Miller to the 114th Street homicide. (Lindahl: H. 380-81.)

To Lt. Lindahl's knowledge neither he nor Detective Martin nor any other detective read Tibbs his Miranda warnings or questioned him before Detective Hayes questioned him. (Lindahl: H. 382-83.) From the time Tibbs was brought to the station at 4:30 p.m. until 8:30 p.m. when Detective Hayes began questioning him, "nothing [was] done with him" — for example, Tibbs was not taken to central booking nor arraigned. (Lindahl: H. 392.) Lt. Lindahl figured that because Detective Hayes was the "most knowledgeable about the case [he] would have the best chance of getting a statement" from Tibbs. (Lindahl: H. 393.) Lt. Lindahl denied the suggestion that he was delaying Tibbs' arraignment to prevent him from obtaining counsel. (Lindahl: H. 393.) Lt. Lindahl testified that he never spoke with Tibbs in the interview room on May 26 and never asked him what happened in the grocery store on 114th Street or who was there with him. (Lindahl: H. 395.) Specifically, Lt. Lindahl denied that Tibbs told him that he was at the grocery store with Cory Miller. (Lindahl: H. 395-96.)

Tibbs took the stand on his own behalf (H. 397), testifying that when he was placed in the interview room at 4:30 p.m. on the day of his arrest, no one read him Miranda rights. (Tibbs: H. 398.) Tibbs testified that Detective Martin and Lt. Lindahl were questioning him by "playing good cop-bad cop," but did not read him the Miranda rights. (Tibbs: H. 398.) Detective Martin brought a ginger ale bottle into the room and "said [Tibbs'] fingerprints were on the bottle, and [Tibbs] was in the store on . . . May 23rd." (Tibbs: H. 399.) In response, Tibbs told Detective Martin that he and his nephew, Cory Miller, went to the store, and that Miller lived on Eighth Avenue. (Tibbs: H. 399-400.) But Tibbs told the police that he did not know what they were talking about when they said they were investigating a robbery-homicide. (Tibbs: H. 400.)

According to Tibbs, when Detective Hayes began questioning him, he "didn't read [Tibbs] Miranda warnings right away. [Detective Hayes] just sat in there and kept asking [Tibbs] questions so that's when he kept bringing pictures . . . of my nephew and the rest of them." (Tibbs: H. 401.) Tibbs testified that Detective Hayes read him Miranda warnings "at the end" and that was the first time Tibbs had heard the warnings that day. (Tibbs: H. 401.)

On cross-examination, the prosecutor got Tibbs to clarify that "at the end" meant the point in the interview after Tibbs told Detective Hayes that he and his nephew were in the store. (Tibbs: H. 401-02.) Tibbs also noted that Detective Hayes did not actually read the Miranda rights; rather, Detective Hayes gave him a paper to sign. (Tibbs: H. 402.) Tibbs testified that his vision is not that good and that Detective Hayes "kept his hand over the paper," but that Tibbs did not ask to read the form. (Tibbs: H. 402-03, 409-12.)

Tibbs admitted that May 26, 1993 was not the first time he was in a police station or had a conversation with the police. (Tibbs: H. 403-04.) In fact, Tibbs testified on cross-examination that he had been arrested at least six prior times. (Tibbs: H. 404-06.) Nevertheless, Tibbs denied having any knowledge of what Miranda rights were because his prior arrests were "drug cases, and on drug cases they don't read you your rights." (Tibbs: H. 405-06.) Tibbs further testified that he was "totally unaware" of Miranda rights, that no police officer had ever read Miranda to him during any of his arrests, and that "[t]his is the first time [he has] ever been involved in a heavy case like this so [he doesn't] understand Miranda rights, anything like this." (Tibbs: H. 406-07.) However, Tibbs then stated that before this arrest he did know he had a right not to speak to the police and that he had a right to an attorney if he wanted one. (Tibbs: H. 407.) Later when asked if it was his testimony that on his prior arrests and convictions he was never informed of his Miranda rights by any police officer, Tibbs responded that he had been informed "[o]nce or twice." (Tibbs: H. 413.)

The Judge's Decision

Justice Atlas denied Tibbs' suppression motions, ruling from the bench on August 10, 1994. (Ex. B: Hearing Court's Decision on Motion to Suppress ["D."].) The judge noted that all of Tibbs' counsel's arguments "proceed[] from one factual notion," that is, "that [Tibbs] was unlawfully questioned and that everything flowed from that unlawful questioning" and thus should be suppressed. (D. 2.)

As to whether there was the probable cause to arrest Tibbs, the judge found that during the investigation of the May 23 bodega robbery and shooting, Detective Hayes questioned a store worker named Mr. Hussein and learned that one of the perpetrators had attempted to purchase a bottle of soda, which remained untouched at the crime scene. (D. 8-9.) The police dusted the bottle for fingerprints and, sometime between May 24 and 26, the prints on the bottle were identified as Tibbs'. (D. 9.) The police placed Tibbs' photograph in a photo array, and Hussein selected Tibbs' as one of the perpetrators. (D.10.) The judge concluded that "there was ample basis to arrest" Tibbs given that "[h]is fingerprints [were] on a bottle which had been left on the counter identified by a witness as having been left by one of the perps. of the crime, and his photograph had been selected from a . . . properly prepared photo array, and not an unduly suggestive one." (D. 25-26.)

As to Tibbs' motion to suppress his post-arrest statements, the judge stated that he did "indeed credit [Detective Martin and Lt. Lindahl's] testimony that they did not question Mr. Tibbs in an automobile on the way uptown" to the precinct. (D. 11.) The judge rejected Tibbs' testimony that Detective Martin and Lt. Lindahl questioned him at the precinct (D. 11, 27), instead finding that "Detective Martin was truthful when he said that he did not question Mr. Tibbs, but rather, they waited until they could get a hold of Detective Hayes" (D.12). The judge "believe[d] the first questioning did occur with Detective Hayes and it did begin with Miranda warnings and then the defendant was fully advised of his right to counsel amongst other rights, and the defendant waived those rights." (D. 27; see also D. 12-13.) The judge also found that Tibbs' subsequent statements to the robbery detectives about the other robberies came after additional Miranda warnings and was not coerced. (D. 14-15.) Finally, the judge noted that as to Tibbs' videotaped statement to the A.D.A., Tibbs "received the Miranda warnings clearly on the tape [and] voluntarily wa[ive]s his rights and agreed to speak with the District Attorney." (D. 24.)

The judge concluded that Tibbs' "statements to Detective Hayes, to the robbery detective that followed, and of course to the District attorney, were all given fully advised of his rights, . . . having voluntarily waived his rights, fully aware of what . . . his rights and indeed, the consequences might be, and all of those statements . . . were taken in a manner . . . which makes them constitutionally admissible at trial." (D. 29.) The judge therefore denied Tibbs' motions to suppress his statements. (D. 30.)

Tibbs' Guilty Plea and Sentencing

On October 12, 1995, Tibbs pled guilty to second degree murder, two counts of first degree robbery, and two counts of first degree attempted robbery, with an agreed sentence of 15 years to life. (10/12/95 Plea Transcript ["P."] at 3, 4-7, 10-12, 15-23; see also State Answer ¶ 11 & Ex. A: Indictment.) On November 8, 1995, Tibbs was adjudicated a second felony offender (Sentencing Transcript ["S."] at 4-5) and sentenced per the plea agreement to fifteen years to life for second degree murder to run concurrently with a four and one-half to nine-year term for one count of first degree attempted robbery and with three six to twelve-year terms for one count of first degree attempted robbery and two counts of first degree robbery, respectively (S. 7-8).

Tibbs's Direct Appeal

On appeal to the First Department, counsel for Tibbs argued that the hearing court's finding that Tibbs was not subjected to pre-Miranda questioning was clearly erroneous, and that all of Tibbs' post-Miranda statements should have been suppressed because they were tainted by his pre-Miranda statement. (Ex. C: Tibbs 1st Dep't Br. at 24-34.) Tibbs' counsel also argued that Tibbs was arrested without probable cause, and therefore his statements and line-up identification should be suppressed. (Ex. D: Tibbs Supp. 1st Dep't Br. at 1-12.)*fn5

On October 19, 1999, the First Department unanimously affirmed Tibbs' conviction, holding:

Defendant's suppression motion was properly denied. We see no reason to disturb the court's credibility determinations, which are supported by the record. The court properly found that defendant was given Miranda warnings prior to his being questioned by the police. Furthermore, the eyewitness's description of defendant's conduct during the crime clearly provided probable cause to believe that he was one of the perpetrators.
People v. Tibbs, 265 A.D.2d 217, 218, 697 N.Y.S.2d 254, 255 (1st Dep't 1999). On February 29, 2000, the New York Court of Appeals denied leave to appeal. People v. Tibbs, 94 N.Y.2d 907, 707 N.Y.S.2d 392 (2000).

Tibbs' Federal Habeas Petition

Tibbs' timely-filed pro se federal habeas petition, dated April 19, 2001, postmarked April 23, 2001, and received by the Court's Pro Se Office on April 25, 2001 (Dkt. No. 1: Pet.), raises the same claims that Tibbs' counsel raised before the First Department (Pet. ¶¶ 12(A)-(D)). Specifically, the petition alleges that: (1) Tibbs' "post-Miranda statements should be suppressed as the detectives failed to issue Miranda warnings before taking a prior custodial statement" (Pet. ¶ 12(A)); (2) "The questioning of petitioner continued without a pronounced break through and until the video taped statement at 2:00 A.M." (Pet. ¶ 12(B)); (3) Tibbs' "post-Miranda statements should be suppressed because such were tainted by the prior unlawfully obtained statement" (Pet. ¶ 12(C)); and (4) Tibbs "was arrested without probable cause and as a result his statements and identification must be suppressed" (Pet. ¶ 12(D)). In his reply to the State's opposition, Tibbs further argues that "the hearing court's factual finding that petitioner was not subjected to pre-Miranda interrogation is clearly erroneous and not supported by the record." (Dkt. No. 12: Tibbs Reply Br. at 19-20.) These claims raise two issues: (1) was the state court determination correct that Tibbs was not questioned before Detective Hayes gave Tibbs Miranda warnings?, and (2) did the police have probable cause to arrest Tibbs? Only if either one of these questions is answered in the negative (which, as discussed below, it is not) would the Court need to further address the post-Miranda statements.

ANALYSIS

I. TIBBS' HABEAS CLAIMS THAT HE WAS QUESTIONED IN VIOLATION OF MIRANDA SHOULD BE DENIED BECAUSE HE HAS FAILED TO REBUT THE STATE COURT'S FINDING THAT HE WAS NOT QUESTIONED BEFORE HE WAS GIVEN HIS MIRANDA WARNINGS
Tibbs' habeas petition alleges that his post-Miranda statements (to Detective Hayes and the robbery detectives) were tainted by statements he made when questioned by Detective Martin and Lt. Lindahl prior to receiving Miranda warnings. (Dkt. No. 1: Pet. ¶¶ 12(A)-(C); see also Pet. Attachment at 1-4; Dkt. No. 12: Tibbs Reply Br. at 19-31.) As discussed in detail below, Tibbs' Miranda-related habeas claims should be denied because the state court credibility determination that he received Miranda warnings prior to any questioning is presumptively correct, and Tibbs has failed to rebut this presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). In light of the factual determination that Tibbs was advised of his Miranda rights prior to any questioning (D. 11-12, 29-30), there is no "pre-Miranda statement" to taint his post-Miranda statement.

After a five-day suppression hearing during which eight detectives and Tibbs testified, the hearing judge found that, prior to being advised of his Miranda rights by Detective Hayes around 8:40 p.m. on May 26, Tibbs was not questioned and did not make any statements to police. (See pages 2-8, 8-10 above.) On appeal, the First Department found "no reason to disturb the court's credibility determinations, which are supported by the record. The court properly found that defendant was given Miranda warnings prior to his being questioned by the police." People v. Tibbs, 265 A.D.2d 217, 218, 697 N.Y.S.2d 254, 255 (1st Dep't 1999). Tibbs claims that the state court's factual finding is "clearly erroneous and not supported by the record." (E.g., Dkt. No. 12: Tibbs Reply Br. at 19.) The Court disagrees.

According to Tibbs, the fact that Detective Price and Sergeant Ortiz left the precinct with a photo array including a picture of Cory Miller before Detective Hayes arrived at the precinct "amply demonstrates that petitioner was questioned on May 26, 1993 between 4:30 p.m., the time of his arrival at the 28th precinct, and 8:30 p.m., the time at which Detective Hayes entered the interview room." (Tibbs Reply Br. at 19-20.) Specifically, Tibbs claims that "in response to such interrogation, petitioner informed members of the 28th precinct that he was with Corey Miller at the grocery store at 301 West 114th Street on May 23, 1993." (Tibbs Reply Br. at 20.) Given that Miller did not arrive at the 28th precinct to see Tibbs until approximately 7:30 p.m. and Detective Hayes did not begin questioning Tibbs until 8:30 p.m., Tibbs suggests that Miller's photograph must have been included in the photo array solely because Tibbs implicated Miller during pre-Miranda questioning by Lieutenant Lindahl and Detective Martin. (Id. at 19-21.) On the other hand, Sergeant Ortiz testified that while Miller was a suspect in the robberies as early as May 20, 1993 (Ortiz: H. 369), the decision to include him in the photo array was prompted by Miller's presence at the precinct on the day of Tibbs' arrest and the fact that he was a relative of Tibbs' (Ortiz: H. 369). Lt. Lindahl also testified that Miller was a suspect prior to Tibbs' arrest. (Lindahl: H. 380.)

The hearing judge specifically found that Detective Prince and Sergeant Ortiz could not have obtained information implicating Miller in the May 20 robbery at 100 Lenox Avenue from any early statement by Tibbs because Tibbs never testified at the hearing that he told police that either he or Miller were involved in the 100 Lenox Avenue robbery. (D. 20-22.) The photo array including Miller's photograph was shown to witnesses to the May 20, 1993 robbery at 100 Lenox Avenue, not the May 23, 1993 grocery store robbery on 114th Street for which Tibbs allegedly implicated himself and Miller before Detective Hayes arrived at the precinct. (Ortiz: H. 359-60; Prince: H. 292; see also Dkt. No. 8: State Habeas Br. at 10 n. 2). While Tibbs testified that, before he received Miranda warnings, he told Lt. Lindahl and Detective Martin that he and Miller were at the grocery store where the homicide occurred on May 23, Tibbs "never testified any where that he was ever questioned by [Detective] Martin or [Lt.] Lindahl regarding any other robbery." (D. 21.) Moreover, the judge specifically "credit[ed] [Detective Martin and Lt. Lindahl's] testimony that they did not question Mr. Tibbs in an automobile on the way uptown." (D. 11.) The judge further "found that Detective Martin was truthful when he said that he did not question Mr. Tibbs, but rather, they waited until they could get a hold of Detective Hayes." (D. 12.) The judge did not credit Tibbs' testimony that Detective Martin and Lt. Lindahl questioned him at this time. (D. 11.) These findings were affirmed by the First Department. People v. Tibbs, 265 A.D.2d at 218, 697 N.Y.S.2d at 255.

Pursuant to the AEDPA, "`a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'" Boyette v. Lefevere, 246 F.3d 76, 88 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(e)(1)); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *10 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report & rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.). As the Second Circuit recently stated, a federal habeas court should

review the state court's findings only to determine whether they were unreasonable in light of the evidence presented, 28 U.S.C. § 2254(d)(2), or whether the presumption that they are correct was rebutted by "clear and convincing" evidence, 28 U.S.C. § 2254(e)(1). . . . In accordance with 28 U.S.C. § 2254, as modified by AEDPA, our review of the state court determinations of facts is limited to an inquiry into whether the conclusion of the state trial court was unreasonable based on the evidence presented and whether petitioner has presented evidence in the District Court that clearly and convincingly rebuts the presumption that the state court's factual findings are correct.
Channer v. Brooks, 320 F.3d 188, 195-96 (2d Cir. 2003); accord, e.g., Miller-El v. Cockrell, 123 S.Ct. 1029, 1041 (2003) ("Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding, § 2254(d)(2)."); Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003) ("Under AEDPA, a state court's factual findings enjoy a presumption of correctness and may not be disturbed except upon a showing of `clear and convincing evidence.'"); Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003) ("Under the AEDPA, we must accept [the state court's] finding of fact unless it is controverted by `clear and convincing evidence.'"); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002) ("In reviewing habeas petitions, we must presume the state court's findings of fact are correct, unless the petitioner meets `the burden of rebutting th[is] presumption of correctness by clear and convincing evidence.") (brackets in original); Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) ("We presume that the state court's factual findings are correct unless they are rebutted by clear and convincing evidence."); Yung v. Walker, 296 F.3d 129, 134 (2d Cir. 2002) ("We must presume the state court's factual findings to be correct and may overturn those findings only if petitioner offers clear and convincing evidence of their incorrectness."); Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) ("[T]he AEDPA instructs that state court findings of fact `shall be presumed correct,' rebuttable only upon a showing of `clear and convincing evidence.'")*fn6

Whether Tibbs was questioned before being advised of his Miranda rights by Detective Hayes is a matter of historical fact subject to the presumption of correctness under 28 U.S.C. § 2254(e)(1). See, e.g., Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465 (1995) (The inquiry into the "circumstances surrounding the interrogation . . . is distinctly factual."); Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998) (The inquiry into the circumstances surrounding the interrogation is "purely factual, and the state court's answer to it is afforded a presumption of correctness . . ."); Holland v. Donnelly, 216 F. Supp.2d 227, 231 (S.D.N.Y. 2002) ("[A]ccount of the events leading up to [petitioner's] confession" were "findings of historical fact [that] must be `presumed to be correct' for purposes of [habeas] petition. . . .") (citing 28 U.S.C. § 2254(e)(1) & Boyette v. Lefevre, 246 F.3d at 88), aff'd, No. 02-2358, 2003 WL 163417 (2d Cir. Mar. 31, 2003); Dallio v. Spitzer, 170 F. Supp.2d 327, 338 (E.D.N.Y. 2001) ("[A] state court's determinations of `subsidiary questions such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and familiarity with the Miranda warnings' are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).") (citing Miller v. Fenton, 474 U.S. 104, 117, 106 S.Ct. 445, 448 (1985)); Ortiz v. Artuz, 113 F. Supp.2d 327, 338 (E.D.N.Y. 2000) ("While the voluntariness of a habeas petitioner's confession is a question of law . . ., subsidiary factual questions relevant to this determination are entitled to the presumption of correctness under 28 U.S.C. § 2204(e)(1). Because subsidiary questions (such as the length and circumstances of the interrogation, the defendant's prior experience with the legal process, and the defendant's familiarity with the Miranda warnings) often require the resolution of conflicting testimony of police and defendant, the law is clear that state-court findings on such matters are conclusive on the habeas court if fairly supported in the record. It is a petitioner's burden to overcome the presumption of correctness by showing that the state court's holding was wrong by clear and convincing evidence.") (citations omitted), aff'd, No. 00-2713, 36 Fed. Appx. 1, 2002 WL 126131 (2d Cir. Jan. 28, 2002), cert. denied, 536 U.S. 909, 122 S.Ct. 2367 (2002).

Tibbs has presented no evidence, much less clear and convincing evidence, for his claim that the hearing court's finding is "clearly erroneous." (Tibbs Reply Br. at 19).*fn7 At base, his argument is that the hearing court erred in crediting the detectives' version of events over his own. The conflicting aspects of the suppression hearing testimony that he brings to this Court's attention were all before the hearing judge, resolved by the judge in the prosecution's favor (D. 11-12, 29-30), and deemed by the First Department to be adequately supported by the record. People v. Tibbs, 265 A.D.2d at 218, 697 N.Y.S.2d at 255. Absent clear and convincing evidence, this Court is not permitted to re-evaluate the credibility of witnesses not before it, and has no basis here to disturb the state court's credibility determinations.*fn8 E.g., Tirado v. Walsh, 168 F. Supp.2d 162, 170 (S.D.N.Y. 2001) ("It is not within the purview of a federal court on habeas review to reassess and pass judgment upon the credibility of a witness whose testimony and demeanor it has not observed." Thus, where petitioner took "issue with the trial court's assessment of [the detective's] credibility and its decision to . . . credit [the detective's] testimony at the suppression hearing . . ., [the habeas] Court decline[d] to entertain [petitioner's] credibility claim . . ."); La Torres v. Walker, 216 F. Supp.2d 157, 167 (S.D.N.Y. 2000) ("It is well settled that on habeas corpus review deference is to be given to factual findings made by state courts. . . . This is particularly the case when a witness's credibility is in question. `[AEDPA] gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them.'"); see, e.g., Sanna v. DiPaolo, 265 F.3d 1, 10 (1st Cir. 2001) (Where suppression hearing judge credited officers' testimony about the interrogation over petitioner's conflicting testimony, and the state appellate court "resoundingly endorsed its credibility assessment" on appeal, habeas court rejected Miranda claim where petitioner "simply insist[ed] that the officers' testimony was untrustworthy" and offered no clear and convincing evidence to rebut the factual finding. "Credibility is quintessentially a matter of fact, reserved in almost every circumstance for the trier. . . . [I]t would be wholly inappropriate for a federal court to repastinate soil already thoroughly plowed and delve into the veracity of the witnesses on habeas review."); see also cases cited at page 21-22 below.

Tibbs has not presented clear and convincing evidence to rebut the trial court's factual conclusion, which this Court must otherwise presume to be correct. 28 U.S.C. § 2254(e); see, e.g., Avincola v. Stinson, 60 F. Supp.2d 133, 164 (S.D.N.Y. 1999) (Scheindlin, D.J. & Peck, M.J.); Rivas v. Keane, 97 Civ. 2560, 1998 WL 804741 at *3 (S.D.N.Y. Nov. 17, 1998) (Parker, D.J.); Rodriguez v. Bennett, 1998 WL 765180 at *3. Furthermore, this Court cannot say that the hearing court's factual determination that the officers read Tibbs Miranda warnings before questioning him was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).*fn9 See, e.g., Whitaker v. Meachum, 123 F.3d 714, 715-16 (2d Cir. 1997) (where detectives testified at suppression hearing that they gave petitioner Miranda warnings and he testified to the contrary, and state courts credited detectives' testimony, petitioner did not meet his burden of proving confession involuntary on habeas petition); Barratt v. Gavin, 98 Civ. 1532, 2000 WL 1364352 at *7 (S.D.N.Y. Sept. 21, 2000) (After a suppression hearing was held on petitioner's statements and the officer testified and was cross-examined by petitioner's counsel, the hearing court "explicitly credited the officer's description of the interrogation, found that [petitioner] had been read and understood his Miranda rights." Habeas court deferred to the this factual finding in "the absence of any `clear and convincing' evidence rebutting" it.); see also, e.g., Grate v. Stinson, 224 F. Supp.2d at 503-04 (Trial judge stated in his suppression hearing findings of fact that petitioner was advised of his Miranda rights. "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). [Petitioner] 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."); Mackenzie v. Portuondo, 208 F. Supp.2d 302, 325 (E.D.N.Y. 2002) (Petitioner's Miranda claim dismissed where "[t]he trial court [at the suppression hearing] and the jury found [the detective's] testimony [that petitioner received and understood his Miranda rights] to be credible, and the Petitioner has not presented any evidence to dispute this finding."); Dallio v. Spitzer, 170 F. Supp.2d at 339 (Where "the Appellate Division specifically found that [petitioner] agreed to speak to the officers after signing the Miranda waiver" and petitioner had not "rebutted the presumption that should be accorded this finding," habeas court found that "the strictures of Miranda were adequately observed."); Bilbrew v. Gavin, No. 97-CV-1422, 2001 WL 91620 at *6 (E.D.N.Y. Jan. 10, 2001) ("[T]he hearing court explicitly credited [the detective's] testimony and found that [petitioner] had been administered, and had voluntarily waived, his Miranda rights. The Appellate Division refused to disturb that ruling. . . . [S]ubsidiary factual questions, such as whether Miranda warnings were in fact given, are entitled to the statutory presumption of correctness. Where, as here, the only Miranda issue is one of historical fact that was the subject of an evidentiary hearing in state court, and petitioner has failed to rebut the presumption of correctness attending the adverse factual determination in that forum, the claim must be rejected.") (citations omitted); Towndrow v. Kelly, No. 9:98-CV-0509, 2000 WL 33743385 at *4 (N.D.N.Y. Dec. 20, 2000) (Where petitioner did "not provide[] the court with any evidence, much less clear and convincing evidence that rebuts the[] findings of the trial court," habeas court deferred to the hearing court's factual "findings as to the circumstances surrounding the questioning of" petitioner, including the fact that petitioner received and understood his Miranda rights and indicated that he was willing to talk to police without counsel.).

Because this Court finds that Tibbs was not subject to any pre-Miranda interrogation, his habeas claims (Pet. ¶¶ 12(A)-(C)) that pre-Miranda statements tainted his post-Miranda statements should be denied.

II. UNDER STONE V. POWELL, TIBBS' REMAINING HABEAS CLAIM THAT HIS STATEMENTS AND IDENTIFICATIONS WERE FRUITS OF AN UNLAWFUL ARREST CANNOT PROVIDE A BASIS FOR HABEAS RELIEF
Tibbs' remaining habeas claim is that his post-arrest statements and line-up identifications should be suppressed as fruits of an unlawful arrest. (Dkt. No. 1: Pet. ¶ 12(D)). Tibbs argues that "there was no reasonable basis to conclude that petitioner had committed a crime and thus no probable cause exis[t]ed to arrest" (Pet. Attachment at 4-5) where (1) Detective Barry informed Detective Hayes that Tibbs' fingerprint was found on the ginger ale bottle at the crime scene (Hayes: H. 6); (2) Detective Clarke conducted the photo array from which Mr. Hussein identified Tibbs (Clarke: H. 302-03); and (3) Lieutenant Lindahl and Detective Martin arrested Tibbs based on this information (Martin: H. 244-45; Lindahl: H. 378-80). According to Tibbs, while "[i]t is generally permissible to determine the exis[t]ence of probable cause on the basis of the col[l]ective information know[n] to the law enforcement organization as a whole . . . there is no evidence in the record tending to show a police channel [of] communication or any commu[n]ication between Detective Hayes and Sergeant Ortiz or Lieutenant Lindahl. There is no evid[e]nce that both Detective[s] had the benefit of Hayes' information." (Pet. Attachment at 5.)

Tibbs' Fourth Amendment claim must be assessed by reference to the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:

[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.
Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (fns. omitted).*fn10

The Second Circuit, sitting en banc, has concluded that Stone v. Powell permits federal habeas review of exclusionary rule contentions only in limited circumstances:

If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.
Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978).*fn11

Here, Tibbs litigated his Fourth Amendment claim at the pretrial suppression hearing and on direct appeal to the First Department. (See pages 2-11 above.) Thus, state corrective process was not only available but was employed for Tibbs' Fourth Amendment claims, which therefore cannot support a petition for a writ of habeas corpus. See, e.g., Gandarilla v. Artuz, 322 F.3d 182, 185 (2d Cir. 2003) ("[T]he merits of a Fourth Amendment challenge are not reviewable in a federal habeas proceeding if a defendant has had a fair opportunity to litigate that question in State court . . ."); Graham v. Costello, 299 F.3d at 134 ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief."); Blagrove v. Mantello, No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at *2 (2d Cir. Sept. 24, 1996) (where defendant's "Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief" defendant's "Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts."); Capellan v. Riley, 975 F.2d at 70 & n. 1 (noting that "the `federal courts have approved New York's procedure for litigating Fourth Amendment claims. . . .'"); McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims); Fayton v. Goord, 01 Civ. 2912, 2001 WL 694573 at *1 (S.D.N.Y. June 18, 2001) ("Since this petition is based on a fully and fairly litigated Fourth Amendment claim . . . such relief cannot be granted.") (Knapp, D.J.).*fn12

Tibbs' claim that the police lacked probable cause to arrest him is a Fourth Amendment claim that is not cognizable on habeas review. E.g., Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986) (Even where state conceded that petitioner's arrest lacked probable cause, petitioner's claim that his post-arrest questioning was fruit of the illegal arrest was barred because New York "clearly provided" petitioner with "an opportunity fully and fairly to litigate" the Fourth Amendment claim.); Chavis v. Henderson, 638 F.2d 534, 538 (2d Cir. 1980) (Petitioner's claim "that his arrest was without probable cause and that therefore the identification evidence should have been excluded, was properly rejected by the district court. [Petitioner] made no showing . . . that he had been precluded from a full and fair opportunity to litigate this issue in the state courts. Under Stone v. Powell . . ., he may not urge the same grounds for federal habeas corpus relief."); Roberson v. McGinnis, 2000 WL 378029 at *5 (Under Stone v. Powell, the Court was precluded from reviewing petitioner's claim that his conviction was based on his confession and the identification testimony obtained as a result of his unlawful arrest. Petitioner had the opportunity to fully and fairly litigate this Fourth Amendment claim during his pretrial suppressing hearing and First Department appeal.); see, e.g., Pina v. Kuhlmann, 239 F. Supp.2d 285, 289 (E.D.N.Y. 2003) (Habeas review unavailable for petitioner's claim that since the police lacked probable cause to arrest him, his post-arrest statements should have been suppressed. "It is well settled that such claims are not cognizable for habeas corpus review where the State has provided a full and fair opportunity to litigate this issue."); Manning v. Strack, No. CV 99-3874, 2002 WL 31780175 at *4 (E.D.N.Y. Oct. 11, 2002) (Raggi, D.J.) ("Stone v. Powell prohibits habeas review of [petitioner's] Fourth Amendment claim" that "he was arrested without probable cause" and that his "identifications and . . . statements should have been suppressed as the fruits of this unlawful arrest." Petitioner "was afforded a full evidentiary hearing on his arrest challenge, as well as one appeal of right and one opportunity to move for leave to appeal."); Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612 at *10-11 (E.D.N.Y. Sept. 18, 2002) (Habeas claim barred where petitioner argued that he was arrested without probable cause and lineup identifications therefore should have been suppressed. Petitioner "cannot claim that the state lacked sufficient procedures for redress of his Fourth Amendment claims because the courts in this circuit have expressly approved New York's procedure for litigating such claims . . ." nor has petitioner "alleged that an unconscionable breakdown in the process occurred."); Bilbrew v. Garvin, No. 97-CV-1422, 2001 WL 91620 at *4-5 (E.D.N.Y. Jan. 10, 2001) (Where petitioner "was not denied the opportunity to litigate his Fourth Amendment claims in the state courts, [the habeas court] will not consider" petitioner's claims "that his statements to the police and the station house identifications of him should have been suppressed as `fruits' of an unlawful arrest. . . . made without probable cause."); Ortiz v. Artuz, 113 F. Supp.2d 327, 335-36 (E.D.N.Y. Sept. 8, 2000) ("Petitioner argue[d] that he was arrested without probable cause in violation of the Fourth Amendment and that his pretrial statement and the identification procedure should have been suppressed as the fruit of the illegal arrest." Because "[t]he hearing court conducted a reasoned inquiry into petitioner's claim and determined that there was probable cause for his arrest, and the Appellate Division affirmed on the merits. . . . petitioner's Fourth Amendment claim is unreviewable by this Court.").*fn13

Moreover, in any event, the police clearly had probable cause to arrest Tibbs. His fingerprints were found on a bottle that one of the perpetrators left on the grocery counter, and a witness picked his photo out of a photo array. (See page 3 above.) This clearly gave the police probable cause to arrest Tibbs. See, e.g., People v. Snipes, 289 A.D.2d 116, 116, 735 N.Y.S.2d 32, 33 (1st Dep't 2001) ("Probable cause for defendant's arrest for the robbery of a jewelry store was established by evidence that defendant's fingerprints were found in an area of the store that had been thoroughly cleaned immediately before the robbery. . . . Since probable cause does not require proof beyond a reasonable doubt, the People were not required to rule out any reasonable possibility that defendant left his fingerprints at some time prior to the robbery.") (citations omitted), appeal denied, 98 N.Y.2d 655, 745 N.Y.S.2d 514 (2002); People v. Glia, 226 A.D.2d 66, 75, 651 N.Y.S.2d 967, 972 (1st Dep't 1996) (Victim's identification of defendant from photo array established probable cause to believe defendant committed the crime.); People v. Pickney, 156 A.D.2d 182, 182, 548 N.Y.S.2d 226, 227 (1st Dep't 1989) (same), appeal denied, 75 N.Y.2d 870, 553 N.Y.S.2d 302 (1990).

CONCLUSION

For the reasons set forth above, Tibbs' Miranda-related claims lack merit and his Fourth Amendment claim is not cognizable on habeas review (and, in any event, lacks merit). Accordingly, Tibbs' habeas corpus petition should be DENIED. Since Tibbs has not made a substantial showing of a constitutional right, a certificate of appealability should not issue. In light of this Report and Recommendation, Tibbs' application for appointment of counsel (Dkt. No. 2) also is denied.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Whitman Knapp, 40 Centre Street, Room 1201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Knapp. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).


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