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October 5, 2004.

NAIM BRUNO, Petitioner,
RAYMOND J. CUNNINGHAM, Superintendent, Woodbourne Correctional Facility, Respondent.

The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District


Naim Bruno petitions pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (2000), challenging his 1998 state court conviction for assault in the first degree and the resulting sentence of 10 to 20 years in prison. Petitioner specifically argues that (i) incriminating oral statements he made while in police custody resulted from renewed interrogation after he had invoked his right to remain silent, (ii) his subsequent written confessions were the involuntary product or tainted fruit of psychologically coercive interrogation, and (iii) his sentence was "grossly disproportionate, harsh and excessive" in violation of the Eighth Amendment. In a Report and Recommendation ("Report") dated December 15, 2003, Magistrate Judge Douglas F. Eaton recommended that Bruno's petition be denied, concluding that petitioner had voluntarily waived his Miranda rights prior to making each post-arrest statement and that he had "utterly failed to show that his sentence violated the United States Constitution." Bruno v. Cunningham, No. 03 Civ. 937, at 3 (Dec. 15, 2003). For the reasons set forth below, the Report is adopted, the writ is denied, and the petition is dismissed. I.

  The following facts, drawn primarily from the trial transcript, are either undisputed or taken in the light most favorable to the prosecution. See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

  A. The Crime

  Naim Bruno and his friend, Mario Omar Reyes, began a long night of heavy drinking and aimless walking around midnight on June 14, 1997. After they met at a McDonald's restaurant at 96th Street and Broadway in Manhattan, Bruno and Reyes traversed the Upper West Side, talking about old times while they drank eight 40-ounce bottles of St. Ides beer. Over three hours later, feeling "real loose" and "buzzed" from having consumed about 160 ounces of beer each, Bruno and Reyes found themselves about 50 blocks from where they had started, at 47th Street and 11th Avenue. (Trial Tr. at 128-35.)

  Reyes was familiar with the neighborhood. It was there, about two years earlier, that a man named "Shadow" had pulled a box cutter on Reyes in a fight over a girl. As Bruno and Reyes walked through that neighborhood again, Reyes spotted an approaching man who appeared to him to be Shadow. Reyes reminded Bruno of the love triangle turned sour, at which point Bruno announced "it's on" and both readied themselves for a fight. Reyes picked up an empty glass Pepsi Cola bottle from the sidewalk, while Bruno took out a silver bicycle chain that he hung from his pants pocket to secure his wallet. As the man came closer, Reyes hurled the bottle, striking his target on the left side of his head and drawing blood. The man fell back and lay motionless against a nearby parked car. Bruno whipped his bicycle chain against the left side of the man's face, striking him on or near the eye four times with great force. (Id. at 146-54.)

  The man spotted by Reyes was not Shadow, but Michael Ayalew, the manager and owner of a local Ethiopian restaurant who had immigrated to the United States as a refugee. Ayalew was on his way home at 3:45 a.m. after closing his restaurant for the night when he saw two men approaching and shortly thereafter felt a "big explosion" in his left eye. (Id. at 41.) Ayalew had friends nearby. Now bleeding profusely, Ayalew ran into a delicatessen across the street and told those inside of the assault. Soon, a group of eight to ten people began chasing Bruno and Reyes, who split up and ran in different directions. As the crowd zeroed in on Bruno, he turned around and started swinging his chain back and forth at the group, nearly hitting Ayalew again. But as Bruno reached the corner, waiting for him there, in Bruno's words, was a "big fat white guy," a customer at the deli named Cornelius Merich, who grabbed Bruno and held him down on the ground until the police arrived. (Id. at 49-55.)

  Several officers arrived on the scene, finding a disheveled but coherent Bruno, as well as Ayalew, who at this point was covered in blood and holding his eye in great pain.*fn1 At Bruno's feet lay a bloody chain. Officer Thomas West interviewed Ayalew, who identified Bruno and the chain as the sources of his injury, and the officers then arrested Bruno and transported him to the Midtown North police precinct. (Id. at 268-75.) Ayalew, meanwhile, was hospitalized, having sustained a deep laceration on his left eye and a fractured zygoma, the orbital bone around the eye. Due to the severity of his injury, Ayalew underwent four surgeries in ten days in a vain effort to save his left eye, which ultimately had to be removed. (Id. at 69-81.)

  B. The Statements

  Upon arriving at the Midtown North stationhouse, at approximately 5:10 a.m., Officer West read Bruno his Miranda rights while Bruno was in a holding cell. After Bruno stated that he understood his rights and was willing to make a statement, Officer West began filling out the paperwork to process Bruno's arrest. (Hearing Tr. at 16-19.)

  Possibly as long as ten minutes later, as West worked at a table about five feet away from Bruno, West overheard Bruno complain to his cellmate, "This is all bullshit. I'm the one that's not being understood here. I was stopped for no reason." (Id. at 20.) West asked Bruno what he meant, to which Bruno responded, "I was hanging out with my friends, then, bam, all these people is on top of me and you guys showed up and saved my ass." (Id. at 21.) When West asked Bruno if he was all right and whether he had been drinking, Bruno stated that he was "fine" but acknowledged that "yes, I had a few forties." (Id.) West then asked Bruno if he remembered anything, and Bruno replied, "Maybe I did something when I was fucked up. I don't even remember." (Id.) During this questioning, although Bruno at times appeared confused or paused briefly before answering, Bruno's speech was not slurred and West had no difficulty communicating with him. (Id. at 22.)

  At approximately 5:50 a.m., while still in his cell, Bruno spontaneously asked West, "Where is my bike chain? Like I hit anybody." (Id.) Bruno volunteered this statement in the absence of any comments or questioning by West. After West told Bruno that the chain was being vouchered as evidence, Bruno boasted, "My bike chain fucked them all up. I bet there is not even blood stains on it." (Id. at 23.) West then continued with his paperwork and took a few phone calls, and at some point, Bruno slept for an unspecified period. (Id. at 56.)

  At approximately 8:30 a.m., Officer West escorted Bruno to the second floor to meet with Detective Humphreys, who advised Bruno of his Miranda rights again and gave him a form with the warnings written at the top. Bruno read and initialed the form and agreed to waive his rights. During the questioning that followed, Bruno was allowed to make a telephone call and go to the bathroom, and was also given a cigarette. According to the record, Humphreys and West made no promises or threats to Bruno throughout this process. (Id. at 28-29.)

  However, after interrogating Bruno for about an hour, the officers realized that Bruno had blood stains on his t-shirt and jeans. The officers took the items believing they might be relevant to the investigation, leaving Bruno in a button-down shirt, boxer shorts, and sneakers for about 30 minutes while the questioning continued. (Id. at 38-39.) During this time, only West and Humphreys were present in the room with Bruno while he was partially undressed, and Bruno's pants were returned to him before he left the room for Central Booking. (Id. at 59-60.) At the end of the interrogation, Bruno signed a written confession, which stated in relevant part: [S]ome guy looked at us and we looked at him and I decided to hit him and run. As I ran I was calling for help because the guy was chasing me with some of his friends. . . . I did not realize but I had hit the guy who was chasing me with the wallet chain and he was bleeding severely out of his nose. He was screaming and he looked in pain. I felt so bad for him, but what I did was in the hands of the law now because I was handcuffed and in the back of a police car. I am sorry for what I did and hope the courts and victim forgive me.

 (Id. at 27.)

  Later that day, at approximately 6:30 p.m., Bruno was taken to the District Attorney's office, where he was again advised of his Miranda rights. Bruno signed a card stating that he understood the warnings and was willing to waive his rights. An assistant district attorney then interviewed Bruno while West prepared a written statement based on Bruno's answers. During this process, Bruno was given a soda, and he was allowed to use the bathroom, make a telephone call, and go to sleep. (Id. at 35-36.) Bruno then read and corrected the statement prepared by West before signing it. Although the statement largely tracked the details in Bruno's first written confession, it included additional information about the source of Ayalew's injury and the blood on Bruno's shirt:
I have a bicycle chain that I use as a wallet chain. And I had it on me this day. I had the chain when I purchased the beer; I did not when I entered the police car. When I first exchanged words and looks with the guy on the street, I did not have blood on my shirt. I have no cuts or wounds that bled. My friend Omar did not have any cuts that bled. (Id. at 33-35.)
  This second statement also referred back to the circumstances under which Bruno made his first confession. In it, although Bruno acknowledged that Detective Humphreys ...

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