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July 6, 2004.

FLOYD G. BENNETT, JR., Superintendent, Elmira Correctional Facility, and ELIOT SPITZER, New York State Attorney General, Respondents.

The opinion of the court was delivered by: RICHARD CASEY, District Judge


Eleutorio Cortijo ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 challenging his state-court conviction on the ground that he was denied due process of law. Petitioner argues that the trial judge's supplemental jury instructions impermissibly reduced the prosecution's burden of proving its case beyond a reasonable doubt. Specifically, Petitioner contends that the supplemental instructions suggested to the jury that he bore the burden of proving that his inculpatory statements were false, and/or that the prosecution did not bear the burden of proving beyond a reasonable doubt the truthfulness of the statements.

This Court referred the matter to Magistrate Judge Gabriel W. Gorenstein, who issued a Report and Recommendation ("Report") recommending that the Court grant the petition. Floyd G. Bennett, Jr., Superintendent of Elmira Correctional Facility, and New York State Attorney General Eliot Spitzer ("Respondents") objected to the Report. For the reasons stated below, the Court declines to adopt the Report, and the petition is DENIED.


  The Court briefly states the relevant facts here. For a more complete statement, see Judge Gorenstein's Report, No. 03 CV 5102 (RCC)(GWG), 2004 WL 418091, at * *1-15 (Mar. 8, 2004).

  A. The Charges and Petitioner's Confession

  On December 12, 1977, the body of Petitioner's father, José Antonio Cortijo, was found in the office building where he had worked as a superintendent. Petitioner lived in that same building. An autopsy revealed that the victim died as a result of a shotgun wound to the back of the head. According to the pathologist, the shotgun was fired no more than two feet from Cortijo's head. The murder weapon was never located.

  In 1995, Petitioner became a suspect in the murder investigation. On April 11, 1995, a New York State probation officer interviewed Petitioner for a presentence report before Petitioner's sentencing on a drug conviction. During the interview, the probation officer asked about Petitioner's father. Petitioner at first responded that he had killed his father; he then retracted the statement and said someone else killed his father. After the officer inquired further, Petitioner repeated that he killed his father.

  The probation officer contacted Detective Frank Colaianni, who was investigating the murder, and informed him of Petitioner's statements. Detective Colaianni and two other officers interviewed Petitioner on October 12, 1995. At trial, Colaianni testified that Petitioner told him that he was hearing voices telling him that he shot his father. After the officers read Petitioner Miranda warnings, he refused to answer any further questions.

  Detective Daniel Danaher interviewed Petitioner on April 2, 1998. Petitioner waived his Miranda rights and again stated that he had killed his father. When asked why, Petitioner said he killed his father because "he felt like it."

  Detective Colaianni contacted Petitioner's brother Richard in April 1997. Richard said that in November 1986, Petitioner had told him that he killed his father. Richard repeated these statements in January 1998 to Detective Danaher. Petitioner was charged with second degree murder in connection with his father's death.

  B. Trial Testimony and Closing Arguments

  Petitioner was tried in June 1998.*fn1 At trial, Petitioner presented the testimony of Dr. Robert Berger, director of forensic psychiatry at Bellevue Hospital. Dr. Berger opined that Petitioner suffered from paranoid schizophrenia, a disorder which includes symptoms such as hallucinations, delusions, and hearing voices. Dr. Berger testified that "[a] delusion is an idea. It's an inaccurate false idea that the person maintains in spite of any logic or reason that he is confronted with still maintains that false idea." (Trial Transcript at 414.) Petitioner's medical records led Dr. Berger to conclude that Petitioner began hearing voices and having sensations of lights flashing shortly after his father's death. Dr. Berger believed that Petitioner's disorder affected his ability to perceive reality, and that Petitioner's statements to the probation officer, the detectives, and his brother may have been distortions and the product of hearing voices.

  During closing arguments, Petitioner's counsel argued that the jury should disregard the statements because of Petitioner's mental disorder. Defense counsel argued, "[The prosecutors] have a number of problems and the first problem is they have to prove that Cortijo's statements are truthful when every single person in this courtroom knows you can't believe what he says and that his statements can never be proven as truthful." (Id. at 666.) He also maintained, "[T]his case always comes back to the exact same issue, the statements of that mental patient, the mental patient, are they truthful and [has the prosecution] proved that his statements are truthful. The answer is no, not now, not ever. It cannot be done." (Id. at 695.)

  The prosecution responded to the defense attorney's argument about Petitioner's statements:
What is [Petitioner's] diagnosis from Dr. Berger and from everyone else's treatment? He's a paranoid schizophrenic. Absolutely true. Does that prevent him from being truthful? No. Dr. Berger said no. Does that prevent him from being accurate? No, Dr. Berger said so. Is there any evidence whatsoever that the defendant is more or less likely to be truthful, to be accurate? No, none whatsoever. There is no single piece of evidence in the record that ...

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