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July 6, 2004.

JOSEPH M. ALLEN, Petitioner,
GARY H. FILION, Respondent.

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Petitioner, Joseph M. Allen ("Allen"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Allegany County Court following a guilty plea to one count of first degree manslaughter. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, Allen's § 2254 petition is denied.


  Allen was indicted by an Allegany County Grand Jury on one count of second degree murder, four counts of first degree robbery, one count of third degree arson, and one count of first degree conspiracy. The People charged that on May 21, 1998, Allen and an accomplice, Fred E. Perry, Jr. ("Perry"), went to the home of James Doan ("Doan") in the rural town of Alma, New York. Doan, who lived by himself, previously had dated Allen's mother. Apparently, Allen and Perry intended to kill Doan prior to killing themselves.*fn1

  Perry, armed with a shotgun, and Allen, with a rifle, approached Doan's house from the woods so as not to be seen. After secreting their weapons outside the door, Perry and Allen entered Doan's house and had a conversation with him. Perry asked Doan for a glass of water, which Doan provided. Perry then stepped outside the door, retrieved and loaded his shotgun, and re-entered Doan's dining room. Perry fired into the left rear part of Doan's skull, killing him instantly.

  Allen and Perry then left Doan's house carrying two of the victim's horse saddles. After a failed attempt to saddle the horses, the two perpetrators retreated to the woods to discuss their plans. Ultimately, Allen and Perry returned to scene of the crime whereupon they lashed Doan's body to a riding lawn mower and dragged the body across the road and into a barn. There, Allen and Perry relieved the victim of $614 in cash and some cigarettes.

  Allen and Perry returned to Doan's house where they washed as much blood and brain matter as possible from the walls and floor. They dumped the cleaning materials in the barn along with the victim's body, which they covered with hay. The perpetrators then doused the barn with gasoline and set it afire. Since they were in a rural area, no one responded to the blaze. Allen and Perry returned to their respective homes. Allen gave his portion of the stolen money to his roommate and asked him to purchase car parts with it.

  Later in the day, after the incinerated barn and Doan's remains were discovered, Allen was questioned by police regarding his whereabouts on the previous evening. Allen was questioned a second time later in the evening of May 22, 1998, and gave a different story. Due to the inconsistencies between his two accounts, Allen was questioned a third time on May 23, 1998. Apparently, in the interim, Allen also confided to an unidentified friend that he had been involved in Doan's murder.

  During this time, the police picked up Perry on a probation violation warrant and sent him to Allegany County Jail. Once there, Perry confessed his involvement in the Doan murder to a fellow inmate, Michael Lopez ("Lopez"), who then contacted the police. Lopez met with Investigator Fish of the state police on May 24, 1998, and gave a statement concerning Perry's admissions. (Lopez testified at a pre-trial hearing that he received no promises of leniency from the police in exchange for this information.) The same day, after receiving this information from Lopez, Investigators Fish and Harris went to Allen's home and requested that he come down to the police barracks. Allen, accompanied by his mother, followed the troopers to the barracks. Once there, Investigator Fish read Allen his Miranda rights. Allen asked for a lawyer, whereupon Investigator Fish left the room. Immediately thereafter, Allen informed Investigator Harris that he had something to tell him and spontaneously began recounting the events of May 21, 1998. Investigator Harris transcribed Allen's oral statements, but Allen did not sign a written statement or the officer's notes.

  Allen then was placed under arrest and detained at the Allegany County Jail where he, too, made admissions to an unidentified person or persons about the Doan murder which were heard by Lopez. Lopez gave a second written statement to Investigator Fish on May 28, 1998, with respect to additional inculpatory statements by Allen and Perry.

  A hearing pursuant to People v. Huntley, 15 N.Y.2d 72, 78 (1965) ("Huntley"), was held before County Court Judge Euken on October 30, 1998, to determine the voluntariness of Allen's oral statements to the police. Lopez, the jailhouse informant, and Investigator Harris were the only witnesses at the hearing. Investigator Harris testified that when Allen arrived at the barracks on May 24, 1998, he was present when Investigator Fish read Allen his Miranda warnings, at which point Allen requested the services of a lawyer. Investigator Fish then left the room while Investigator Harris remained. According to Investigator Harris, Allen suddenly said, "I have something I have got to tell you," and spontaneously began recounting the events surrounding the Doan murder. See Transcript of Huntley Hearing at 42-43, Respondent's Appendix of Exhibits ("App.")*fn2 at 166-67. Investigator Harris indicated that he just listened to Allen and wrote down what he said. Investigator Harris testified that he did not ask Allen any questions other than "can [you] repeat what [you] said" or "could you say it louder" Id. According to Investigator Harris, he did not ask for additional details, such as information regarding dates or places or times. Id. at 45, App. at 169. Allen was not asked to give a written statement, nor was he asked to sign Investigator Harris's notes. Id. at 46, App. at 170.

  Investigator Harris testified that Allen did not leave the interrogation room to go use the telephone before he started confessing to the murder. Nor did Investigator Harris offer to have a lawyer contact Allen at that time. Id. at 60, App. at 183. Investigator Harris conceded that Allen was not free to go, even before Allen began making inculpatory oral statements that afternoon. Id. at 62-63, App. at 185-86. Once Allen completed giving his oral statement, he was placed under arrest.

  Judge Euken issued a written decision denying Allen's motion to suppress on November 30, 1998. The court observed that under New York law, "[o]nce an attorney has entered the proceeding, the police may not question a suspect in the absence of counsel unless there is an affirmative waiver in the presence of counsel of the defendant's right to counsel." 11/30/98 County Court Order, App. at 227 (citing People v. Arthur, 22 N.Y.2d 325, 329 (1968)). However, the court noted, the rule in People v. Arthur "does not apply when the defendant makes spontaneous admissions that are not the product of police interrogation." Id. (citing People v. McKie, 25 N.Y.2d 19, ...

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