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United States District Court, S.D. New York

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 and Officer West did not threaten him or force him to confess the first time, Bruno also stated that "I was in my underwear and felt pressure from Detective Humphreys. . . . Neither of the police officers believed that I could not remember what happened. I did not want to go in the cell in my underwear, so I made the statement." (Id.)

  In accordance with People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838 (1965), Justice Michael Obus of Supreme Court, New York County, held a pre-trial hearing on the admissibility of Bruno's inculpatory statements. At the Huntley hearing, the Court expressly credited the testimony of Officer West, emphasizing that Bruno had been advised of his Miranda rights on three occasions prior to making each of his statements. (Id. at 65-66.) Justice Obus held that Bruno's initial oral statements made while he was in the holding cell were not prompted by Officer West but rather were spontaneous comments made shortly after Bruno had waived his rights. (Id. at 67.) With respect to Bruno's claims of coercion, the Court found that the removal of Bruno's t-shirt and pants did not render his statement involuntary, given that he had already been speaking to the officers for some time and because he remained partially dressed during the relatively brief period his clothing was taken for testing. (Id.) Finally, regarding Bruno's alleged intoxication, the Court noted that West "did not himself see any indication of intoxication" from Bruno and that, despite appearing confused at times, Bruno "respond[ed] in a sensible way to whatever statements were made to him." (Id. at 66-67.) Viewing this evidence under the totality of the circumstances, Justice Obus concluded that "throughout the period of time that these statements were made, the defendant was sufficiently aware of what was going on to comprehend [his] rights" and had made a "knowing and intelligent waiver" of those rights. (Id. at 68.)

  C. Trial, Sentence, and Appeals

  Because Bruno does not challenge the sufficiency of the evidence that led to his conviction, it need not be recounted in great detail here. However, by far the most compelling testimony came from Bruno's accomplice, Mario Reyes, who testified for the prosecution under a cooperation agreement,*fn2 and Bruno's victim, Michael Ayalew. The jury convicted Bruno of first degree assault. The trial court heard Ayalew testify to the life-changing consequences wrought by the assault (Sentencing Tr. at 15-20) and then sentenced Bruno to an indeterminate term of 10 to 20 years in prison. On appeal, Bruno challenged his conviction and sentence on many of the same grounds raised in his petition here — namely, the admissibility of his post-arrest statements and the alleged excessiveness of his sentence. The Appellate Division rejected Bruno's arguments, People v. Bruno, No. 4997/97 (N.Y.App. Div. Jan. 15, 2002), and the Court of Appeals denied further direct review, People v. Bruno, No. 4997/97 (N.Y. Feb. 28, 2002) (Graffeo, J.). Bruno then filed this petition, and Magistrate Judge Eaton issued his Report recommending that Bruno's petition be denied.


  A district court reviewing a magistrate judge's report follows the standard established in 28 U.S.C. § 636(b)(1) (2000) and Fed.R. Civ. P. 72(b). The district judge must make a de novo determination of those parts of the report to which timely written objection has been made by any party, but the uncontested portions of the magistrate judge's report may be adopted unless they show clear error. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Raddatz, 447 U.S. 667, 673-76 (1980). Because petitioner objects to the Report's conclusions regarding the admissibility of his post-arrest statements and the length of his sentence, I will review these issues de novo. What is required in reviewing disputed sections of a magistrate judge's report de novo is "a de novo determination" rather than a de novo hearing. Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). Bruno's request for an evidentiary hearing on his habeas petition, therefore, is denied.


  A. Invocation of Right to Remain Silent

  Bruno's first claim is that he was impermissibly interrogated without being re-read his Miranda rights after he had invoked his right to remain silent. Because Bruno's direct appeal on this claim was rejected by the state courts on the merits, he is entitled to habeas relief under § 2254 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") only if the state courts' denial of his claim was either 1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or 2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (2000); see Williams v. Taylor, 529 U.S. 362, 404-05 (2000). Although application of § 2254(d) sometimes entails subtle legal niceties, particularly regarding the definition of reasonableness, see Yarborough v. Alvarado, 124 S.Ct. 2140, 2149 (2004), the Supreme Court has established a well-worn path for courts to follow with respect to the admissibility of post-arrest statements. Under Miranda v. Arizona, 384 U.S. 436 (1966), the police must recite a familiar litany of warnings prior to questioning a suspect in order to dispel the inherently coercive effects of custodial interrogation. Once a suspect is warned of his right to remain silent and to have counsel, retained or appointed, present during interrogation, "the subsequent procedure is clear":

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.
Id. at 473-74. Miranda thus requires that the police "scrupulously honor[]" any invocation by a suspect of his "right to cut off questioning" by immediately "ceas[ing]" interrogation. Id. at 474, 479; see also Michigan v. Mosley, 423 U.S. 96, 101-06 (1975) (clarifying Miranda by allowing post-invocation questioning under certain circumstances).

  Bruno does not dispute that his Miranda rights were explained at the outset of his detention at the Midtown North police station, and that he waived them. He disputes vigorously, however, the legal consequences of what happened next. According to Bruno, after Officer West read Bruno the Miranda rights, Bruno then invoked his right to remain silent:

West gave petitioner his rights, and [petitioner] was willing to answer questions but made no statement. West asked petitioner no questions, then petitioner was put in a holding cell and West walked to his desk to start his paperwork. The inference from West's actions is that petitioner indicated his wish to remain silent, West broke off his interrogation and "scrupulously honored" petitioner's right to remain silent (Michigan v. Mosley, 423 U.S. 96, 103-04, 96 S.Ct. 321, 326 [1975]).
(Points of Objection to United States Magistrate Judge Eaton's Report and Recommendations at 8 ("Points of Objection").) It was while West began his paperwork to process Bruno's arrest that he heard Bruno, in his cell less than five feet away, announce to his cellmate that the circumstances of his arrest were "all bullshit." West then asked Bruno what he meant.

  Although Bruno accurately restates the sequence of events reflected in the record, Bruno's proposed "inference" that he had "indicated his wish to remain silent" rests solely on a few lines in the Huntley hearing:

Officer West: I stated, "Now that you [sic] I've advised you of your rights, are you willing to answer questions?" And the defendant stated, Yes.
. . . .
ADA Kollmar: Did you have to explain any of the rights?
West: No. Kollmar: And did the defendants [sic] make a statement at that time?
West: At that time, no.
(Hearing Tr. at 18-19.) It is from this exchange that Bruno alleges, with no evidentiary support in the record, that he had invoked his right to remain silent. He cites no affirmative statement by him to Officer West that he wished to remain silent; nor does he allege that he remained silent in response to any actual questioning by West. Rather, Bruno argues that because he failed to volunteer a statement immediately after waiving his rights, "by all intents and purposes . . . Bruno had chosen to remain silent." (Mem. of Law in Reply to Respondent's Opp'n to Pet. for a Writ of Habeas Corpus at 7 ("Mem. of Law").)

  The invocation of the right to remain silent, however, requires more than "intents and purposes." Rather, in order to assert his right to silence, a suspect must unequivocally and unambiguously state his desire not to be subject to further questioning. See Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989). This is not to say that a suspect must invoke his right to silence with respect to all further questioning on any topic — a suspect, in other words, may waive his rights selectively. See Michigan v. Mosley, 423 U.S. 96, 105 (1975) (finding unequivocal invocation of right to remain silent where suspect expressly "declined to answer" questions about the robberies at issue, but allowing subsequent questioning for an unrelated murder investigation). Nor must a suspect always expressly assert his right to remain silent through the rote incantation of a formula. Miranda, 384 U.S. at 473 (suspect may invoke right to remain silent "in any manner"); see also United States v. Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) ("A suspect need not rely on talismanic phrases or any special combination of words to invoke his Fifth Amendment right to remain silent."). "[W]here a suspect has invoked his right equivocally or ambiguously, the officers are permitted to ask narrow questions only for the purpose of clarifying the ambiguity." Ramirez, 79 F.3d at 304 (emphasis added).

  Bruno's alleged invocation of his right to remain silent, however, was not even ambiguous or equivocal; it was non-existent. See id. Bruno alleges that he invoked his right to silence by failing to volunteer a statement immediately after he was read his Miranda rights. This may have been the case if he had actually been asked any questions by Officer West at that time (other than, of course, those questions directly a part of the Miranda warnings). For example, in United States v. Montana, 958 F.2d 516 (2d Cir. 1992), a case on which Bruno relies heavily, the Second Circuit found that a suspect had invoked his rights by remaining silent in response to all pedigree questions by the interrogating agent. Citing the agent's notation in his report that, after being advised of his rights, "Montana elected not to make any statements," the Court concluded that "[t]he clear inference is that the agent understood Montana's silence as an invocation of his Fifth Amendment privilege." Id. at 518.

  Bruno concedes, however, that unlike the agent in Montana, "West asked petitioner no questions" after Bruno waived his rights. (Points of Objection at 8.) It was not until after Officer West overheard Bruno's spontaneous comments to his cellmate that he commenced the interrogation. In an even starker contrast to Montana, the record reflects that at some earlier point in the process, Bruno actually answered the very kind of pedigree questions that Montana refused to answer.*fn3 Although silence in the face of "repeated" questioning by an officer may be sufficient to indicate invocation of the right to remain silent, see Mosley, 423 U.S. at 105-06, Bruno's failure to volunteer a spontaneous statement to Officer West in the absence of any interrogation whatsoever did not, by any standard, constitute an invocation of his right to remain silent. See Fare v. Michael C., 442 U.S. 707, 727 (1979) (no assertion of right to remain silent where suspect stated he "could not, or would not, answer" certain questions); United States v. Ramirez, 79 F.3d 298, 305 (2d Cir. 1996) (no invocation where suspect "simply answered some questions and did not respond to others"); Holland v. Donnelly, 216 F. Supp. 2d 227, 239 (S.D.N.Y. 2002) (no implied invocation where suspect remained silent and beat his head on interview table in response to particular question). Police officers must be sensitive to an equivocal invocation of rights so as to clarify its meaning; they are not required to be psychic so as to detect an unexpressed desire to invoke rights.

  Absent an assertion by a suspect of his right to remain silent, the police are free to continue questioning a suspect who has validly waived his Miranda rights at an earlier time without re-advising him of those rights. See United States v. Mabie, 580 F. Supp. 1382, 1385 (E.D.N.Y. 1984) (noting that the Second Circuit "has insisted upon neither a significant hiatus, nor a second recitation of rights as a condition to renewed interrogation"). In arguing to the contrary, Bruno relies primarily on Michigan v. Mosley, 423 U.S. 96 (1975). In Mosley, the suspect unambiguously invoked his right to remain silent in response to police interrogation about a series of robberies. The next morning, however, different officers interrogated Mosley about a different crime, a murder, after renewed Miranda warnings. The Supreme Court, addressing when "a resumption of questioning is permissible," rejected the argument that Miranda's command that "interrogation must cease" precluded any and all subsequent questioning. The Court ruled that although Miranda required more than a "momentary cessation" of interrogation after a suspect invoked his rights, it did not create a "per se proscription of indefinite duration upon any further questioning." 423 U.S. at 101-02.

  In his Memorandum of Law, Bruno argues that since he "made no statement [upon being advised of his rights], the first Miranda warning is a nullity." (Mem. of Law at 7.) As a result, when West allegedly "engaged Bruno in conversation specifically designed to convince him to change his mind and waive his right to remain silent" upon hearing Bruno's comment to his cellmate, West "should have repeated the warnings" in accordance with Mosley. (Id.) Despite the superficial applicability of Mosley, this simply is not the case, as a matter of fact or of law. While it is true that the Mosley Court emphasized that the interrogating officers had readvised Mosley of his rights before additional questioning, the inquiry in Mosley was triggered by a finding that the suspect had actually invoked his right to remain silent. See, e.g., Gandia v. Hoke, 648 F. Supp. 1425, 1432 (E.D.N.Y. 1986) ("Mosley deals with resumption of questioning after the right to remain silent is invoked. If the right is never invoked, Mosley has no relevance."). Unlike Bruno, Mosley, as the Court repeatedly noted, "said he did not want to answer any questions about the robberies," 423 U.S. at 97, "stated that he did not want to discuss the robberies," id. at 104, and "declined to answer" any such questions, id. at 105. Bruno, by contrast, did not expressly or even impliedly invoke his right to remain silent in response to any actual interrogation by Officer West. Gandia, 648 F. Supp. at 1432 ("Inasmuch as Gandia never invoked his right to remain silent, there was nothing coercive in continuing to question him after a short break; there was no `cooling off' period required because Gandia never asked his interrogator to `cool off.'").

  Courts have been reluctant to impose arbitrary time limits on the subsequent questioning of a suspect who has already waived his rights knowingly and voluntarily. See, e.g., Wilson v. Henderson, 584 F.2d 1185, 1188 (2d Cir. 1978) ("We are not of the belief . . . that the crucial factor in determining a Fifth Amendment violation should be the length of time between questioning."). Thus, the passage of ten minutes between a suspect's valid waiver of his Miranda rights and the commencement or continuation of custodial interrogation by a police officer, as occurred here, does not render the suspect's waiver stale. Officer West was free to advise Bruno of his Miranda rights, begin paperwork, and then commence interrogation without renewed warnings upon overhearing Bruno's comments to his cellmate. In any event, the state courts' decisions rejecting Bruno's claims on such grounds did not constitute an unreasonable application of the Supreme Court's precedents in Miranda and Mosley. B. Involuntary Confession

  The constitutionally-based protocol of Miranda v. Arizona, however, does not provide the one and only basis for constitutional attack against an incriminating statement or confession: A suspect who has knowingly waived his Miranda rights may nevertheless claim that his confession was coerced in violation of the Due Process Clause. Dickerson v. United States, 530 U.S. 428, 433 (2000) (noting "two constitutional bases for the requirement that a confession be voluntary to be admitted into evidence: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment"). Relying on this distinction, Bruno argues that his first written confession, drafted about three hours after his initial oral statements to Officer West, violated due process because he was intoxicated and partially undressed during the interrogation. Like his Miranda claim, Bruno's due process argument was rejected by the state courts on the merits, and thus Bruno may prevail only if the state courts' conclusions were "contrary to, or involved an unreasonable application of" Supreme Court precedent, § 2254(d)(1), or were based on unreasonable factual determinations rebutted by clear and convincing evidence, §§ 2254(d)(2), (e)(1). Because the state courts' conclusions were neither, Bruno's claim fails. In Dickerson v. United States, 530 U.S. 428, 434 (2000), the Supreme Court distilled its precedents for determining whether a statement is voluntary or coerced under the Due Process Clause, stating that the appropriate inquiry entails


"whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession. Schneckloth [v. Bustamonte], 412 U.S. [218,] 226, 93 S.Ct. 2041 [1973]. The due process test takes into consideration "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation." Ibid.
See also Green v. Scully, 850 F.2d 894, 901-02 (2d Cir. 1988) (applying totality of the circumstances test). The Supreme Court has held that "the ultimate issue of `voluntariness' is a legal question requiring independent federal determination" under a de novo standard of review. Miller v. Fenton, 474 U.S. 104, 110 (1985); see also Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997). However, a state court's findings of fact, 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 entitled to a presumption of correctness under 28 U.S.C. § 2254. Miller, 474 U.S. at 117.

  A close review of the record in Bruno's case shows that the state courts applied the totality of the circumstances standard in a manifestly reasonable manner. First, and most significantly, Bruno was advised of his Miranda rights on three separate occasions prior to making each of his incriminating oral and written statements. As the trial court found after a thorough evidentiary hearing, the Miranda warnings given to Bruno fully apprised him of his rights to silence and counsel, and Bruno knowingly waived those rights on each occasion (Hearing Tr. at 66) ("[T]here is no doubt that the defendant was advised of his Miranda warnings. He stated that he understood them and agreed to speak and make a statement prior to any of the statements that the People intend to offer at this trial."). This alone provides compelling evidence that Bruno spoke voluntarily when he made the statements at issue. See Missouri v. Seibert, 124 S. Ct. 2601, 2608 (2004) ("[G]iving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver.").

  Miranda warnings alone, however, are not always enough. The Supreme Court has cautioned that the mere giving of Miranda warnings does not by itself "dispense with the voluntariness inquiry." Dickerson, 530 U.S. at 444. At the same time, the Court has also expressed skepticism over the viability of due process claims where the police have satisfied Miranda, stating that "[c]ases in which a defendant can make a colorable argument that a self-incriminating statement was `compelled' despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare." Berkemer v. McCarty, 468 U.S. 420, 433 n. 20 (1984). The question thus becomes whether the facts here make Bruno's petition one of those "rare" cases envisioned by the Court in Berkemer.

  To show that his is such a "rare" case, Bruno argues that he was a "prime candidate for coercion, a drunk suspect whose perceptions were inhibited after drinking three an[d] a half (40 ounce) bottles" of beer "on an empty stomach" and with little to no sleep since the previous day. (Mem. of Law at 10-11, 18.) Bruno's compelling characterization of the facts, however, is inconsistent with the record, as well as the trial court's factual findings, which are presumed to be correct absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1) (2000). At the Huntley hearing, the trial court expressly credited the testimony of Officer West, concluding that "the sequence of events took place essentially as [he had] testified." (Hearing Tr. at 65.) According to West, although Bruno at times seemed "confused" or paused before answering some of his questions, Bruno's speech was not slurred, his breath did not smell of alcohol, and when asked how he was doing, Bruno responded that he was "fine." (Id. at 21-22, 66.) Viewing this and other evidence under the totality of the circumstances, the trial court thus concluded that Bruno was aware of the surrounding circumstances, understood his rights, and had voluntarily agreed to speak after making a knowing and intelligent waiver of those rights. (Id. at 68.)

  Apart from accusing Officer West of perjury, Bruno has failed to present any evidence to refute this conclusion. Even if the facts were exactly as Bruno presented them in his petition, the trial court's conclusions were not unreasonable as a matter of law. Several courts have held that "[e]ven evidence of a defendant's intoxication with alcohol or a controlled substance does not preclude a finding of a knowing and intelligent waiver provided that they appreciate the nature of the waiver." Alvarez v. Keane, 92 F. Supp. 2d 137, 150 (E.D.N.Y. 2000); see also Parsad v. Greiner, 337 F.3d 175, 184 (2d Cir. 2003) ("The mere fact that petitioner is an alcoholic is insufficient to render his pre-Miranda statements involuntary."); United States v. Turner, 157 F.3d 552, 555-56 (8th Cir. 1998) (declining to "adopt a per se rule . . . when confronted with intoxication" and holding that despite suspect's PCP intoxication, evidence showed he understood and knowingly waived his rights); United States v. Brooks, 125 F.3d 484, 491 (7th Cir. 1997) (statement voluntary despite claim that suspect was experiencing effects of crack cocaine, sleep deprivation, and a hand injury because defendant was alert, coherent, and able to make informed and voluntary choices); United States v. Casal, 915 F.2d 1225, 1229 (8th Cir. 1990) (coherent confession not involuntary even though defendant had recently used methamphetamine and had not slept for five days); Avincola v. Stinson, 60 F. Supp. 2d 133, 160 (S.D.N.Y. 1999) (valid waiver despite physical manifestations of drug use by defendant when Miranda warnings given); United States v. DiLorenzo, 94-CR-303, 1995 WL 366377, at *8-9 (S.D.N.Y. June 19, 1995) ("[A] claim that a defendant was exhausted or suffering from the effects of alcohol is not, in the absence of coercive law enforcement activity, sufficient to characterize his confession as involuntary.").

  Bruno's second ground for arguing that his confession was involuntary is that he was "partially naked" during the interrogation. (Mem. of Law at 15.) Specifically, about an hour into Bruno's interrogation by Officer West and Detective Humphreys, the officers took his bloodied clothing for testing and left him wearing a button-down shirt, boxer shorts, and sneakers for about 30 minutes while he continued to be interrogated. Bruno recalls that he was terrified by this turn of events, particularly emphasizing two statements in his second written confession as evidence that he was coerced: (i) "I was in my underwear and I felt pressure from Detective Humphreys" and (ii) "I did not want to go in the cell in my underwear, so I made the statement." (Points of Objection at 13.) Like his intoxication defense, this claim is also without merit.

  Bruno asserts that his clothes were taken as punishment for his uncooperativeness and that in a gambit to secure Bruno's confession, the officers threatened to send Bruno back into the holding cell wearing only his boxer shorts and shirt. (Points of Objection at 12-13.) Bruno, however, presented no evidence whatsoever at the Huntley hearing that Officer West and Detective Humphreys had threatened that they would put him back in the cell in only his boxer shorts. Nor did he present any such evidence at trial, on his direct appeal, in his initial habeas petition, or even his Memorandum of Law. It is only in his Points of Objection to Magistrate Judge Eaton's Report, the very last paper that he has filed in this matter, that he reveals such a claim. This allegation cannot rest on Bruno's bare assertions.

  Bruno, moreover, was not stripped of all his clothing and made to cower in fear for a prolonged period of time, see Bram v. United States, 168 U.S. 532, 561-62 (1897); Malinski v. New York, 324 U.S. 401, 406-07 (1945); rather, some of his clothes were taken for a limited time and a limited purpose, and they were returned to him before he left the room. The questioning during that brief period was a mere continuation of the prior hour of interrogation, and although Bruno said he felt "pressure" to confess, he also acknowledged in the same statement that West and Humphreys did not threaten him in any way. (Hearing Tr. at 33-35.) Bruno was not handcuffed during the interrogation, he was given a soda and cigarette, and he was allowed to make a telephone call and go to the bathroom. Of course, Bruno's experience was by no means stress-free, but his questioning involved little more coercion than is inherent in the process of custodial interrogation — precisely what the Miranda warnings are designed to dispel. United States v. Heatley, 32 F. Supp. 2d 131, 137 (S.D.N.Y. 1998).

  The facts here are in no way comparable to those in cases where courts have found confessions to be involuntary. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (considering "the youth of the accused, his lack of education, or his low intelligence, the lack of any advice to the accused of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of physical punishment such as the deprivation of food or sleep") (citations omitted); Mincey v. Arizona, 437 U.S. 385, 398-99 (1978) (nearly comatose suspect, suffering "unbearable" pain from a serious wound, was subjected to relentless interrogation while "lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus"); Arizona v. Fulminante, 499 U.S. 279, 287 (1991) (coercion resulted from a "credible threat of physical violence" where government informant promised defendant protection from fellow inmates in return for confession). The state courts' conclusion that Bruno's confession was voluntary was not an unreasonable application of clearly established federal law.

  C. Attenuated Confession

  Bruno also argues that his second written confession, made during an interrogation by Officer West and an assistant district attorney about eight hours after his first written confession, was likewise involuntary because it was not sufficiently attenuated from the previous allegedly coerced statements. For the reasons stated below, this claim too is rejected.

  Under the "fruit of the poisonous tree" doctrine, developed in the Fourth Amendment context in Wong Sun v. United States, 371 U.S. 471 (1963), "evidence otherwise admissible but discovered as a result of an earlier [constitutional] violation is excluded as tainted" in order to discourage future violations. Missouri v. Seibert, 124 S. Ct. 2601, 2610 n. 4 (2004). Although this exclusionary doctrine does not ban evidence obtained as a result of a "mere failure[] to warn" a defendant of his Miranda rights, United States v. Patane, 124 S. Ct. 2620, 2629 (2004), it does serve to exclude the tainted fruits of direct violations of the Due Process Clause or the Self Incrimination Clause. Id. at 2628 ("[T]hose subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.") (citation omitted). Any such derivative evidence, however, may still be admitted at trial if the causal connection between it and the unlawful police conduct is so attenuated that the taint of the initial misconduct has dissipated. See Wong Sun, 371 U.S. at 488 (holding that the proper inquiry is whether the evidence was obtained through exploitation of the initial constitutional violation or by means sufficiently distinguishable as to be purged of the primary taint).

  Bruno's invocation of the fruit-of-the-poisonous-tree doctrine fails for two reasons. First, tainted fruit can grow only on poisonous trees — that is, as a threshold matter, derivative evidence may be excluded as tainted only when the court has actually found a prior constitutional violation. Oregon v. Elstad, 470 U.S. 298, 308 (1985) (holding Wong Sun inapplicable where there was "no actual infringement of the suspect's constitutional rights"). In this case, the state courts properly ruled that Officer West and his colleagues did not coerce Bruno into giving his first written confession. Given that the interrogating officers administered the Miranda warnings at all relevant times and did not engage in any "deliberately coercive or improper tactics" to obtain the earlier confession, see Elstad, 470 U.S. at 314, Bruno's subsequent confession cannot by extension be viewed as tainted. Absent an underlying wrong, the fruit-of-the-poisonous-tree doctrine simply does not apply. Id. at 312 ("When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.").

  Second, even if Bruno's prior statement had in fact been coerced, Bruno's second statement was sufficiently separated from the first and thus was no longer tainted. In Elstad, the Court held that "[w]hen a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession." Id. at 310. In this case, all three factors point in favor of a finding of attenuation: (i) Bruno's interrogation session with the ADA was over eight hours after his first written statement; (ii) the interrogation took place in the District Attorney's office rather than the Midtown North police precinct; and (iii) the interrogation was conducted by the ADA and Officer West rather than Detective Humphreys and West. See Bush v. Portuondo, No. 02 CV 2883, 2003 WL 23185751, at *13-14 (E.D.N.Y. Oct. 29, 2003) (finding attenuation where defendant's initial statement to a detective was followed five hours later by a second statement to an assistant district attorney because the second statement was "removed in time and circumstance from the first statement").

  Nor were the conditions under which Bruno made his second written confession in and of themselves more unduly coercive than those present when he made his earlier oral and written statements. Prior to the interrogation in the ADA's office, Bruno was readvised of his Miranda rights and initialed a rights card indicating that he understood and waived those rights. Bruno was fully clothed during this final interrogation with Officer West and the ADA, and whatever effects of intoxication, if any, that Bruno had felt in the run-up to his first written confession were diminished or absent over eight hours later. Moreover, contrary to his unsupported assertions that he had been awake for over 32 straight hours (Points of Objection at 15), according to the uncontradicted testimony of Officer West, Bruno had an opportunity to sleep between his initial processing and his first interrogation, as well as before his final interrogation (Hearing Tr. at 36, 56). Finally, Bruno was not handcuffed or threatened during the interrogation, he was given a soda, and he was allowed to use the bathroom and make a telephone call. (Id. at 35-36.) Bruno thus made a knowing and voluntary waiver of his rights prior to giving his second written confession and the trial court did not act unreasonably by admitting it into evidence.


  A. Excessive Sentence

  After the jury convicted Bruno of assault in the first degree, the State requested that Bruno be sentenced to the maximum statutory term of 12 1/2 to 25 years and the victim delivered an impassioned plea recounting the life-changing impact of the assault. Justice Obus, in an oral decision carefully reviewing the arguments presented, sentenced Bruno to an indeterminate term of 10 to 20 years in prison. This sentence was affirmed by the Appellate Division, which "perceive[d] no basis for reduction of sentence." People v. Bruno, No. 4997/97 (N.Y.App. Div. Jan. 15, 2002). Bruno now challenges the sentence as "so grossly disproportionate, harsh and excessive" that it violates the Eighth Amendment's proscription against "cruel and unusual punishment," pointing in particular to the more lenient sentence imposed on his accomplice Mario Reyes and emphasizing Bruno's alleged intoxication at the time of the assault as a mitigating factor. (Mem. of Law at 28-30.) As explained below, the state court determinations in this case were reasonable as a matter of law, and therefore Bruno's claim is denied. Ordinarily, a claim arising out of a state court's sentencing decision is not reviewable in a federal habeas court, particularly when the sentence falls within the limits imposed by state law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law."); Alvarez v. Scully, 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993). A petitioner who challenges his sentence must show that the decision amounted to an arbitrary or capricious abuse of discretion, Alvarez v. Scully, 91 Civ. 6651, 1993 WL 15455, at *8 (S.D.N.Y. Jan 11, 1993), or that an error of law resulted in the improper exercise of the sentencing court's discretion. See Gonzalez v. Kulhman, 911 F. Supp. 120, 125 (S.D.N.Y. 1995) (citing Haynes v. Butler, 825 F.2d 921, 924 (5th Cir. 1987)); Jones v. Hollins, 884 F. Supp. 758, 762 (W.D.N.Y. 1995).

  Bruno's sentence of 10 to 20 years falls within the statutory guidelines and is less than the 12-1/2 to 25 year maximum that could otherwise have been imposed under state law. Nor did the sentence result from any arbitrary or capricious decision by the sentencing court. Bruno's claims, for example, that he was intoxicated at the time of the assault and was no more responsible for what happened than his accomplice Mario Reyes are belied by the record. Bruno was convicted by a jury of assault in the first degree, which means that the jury found intoxication did not negate his criminal intent, and his role as principal perpetrator of the crime was different from that of Reyes. (See Sentencing Tr. at 34 (expressing reservations about the lenient disposition received by Reyes but acknowledging the need for his testimony at trial and concluding that "although [Reyes] may have precipitated this incident, he is not the one who wielded this chain . . . and who caused this terrible injury").) The trial judge distinguished Bruno's role from Reyes's; that distinction shows a valid exercise of discretion, not an abuse of discretion. Cf. Solem v. Helm, 463 U.S. 277, 289-90 (1983) (finding of unconstitutional disproportionality in sentencing is "exceedingly rare"). Because Bruno's sentence was within state statutory guidelines and did not result from an abuse of discretion, the current petition presents no federal constitutional claim deserving of habeas relief.

  B. Bruno's Factual Arguments

  Bruno also seeks to relitigate the facts that led to his conviction, cataloguing alleged inconsistencies in the evidence and witness testimony presented at trial. (Mem. of Law at 23-25; Points of Objection at 16-21.) A federal court reviewing a habeas petition, however, is not a forum in which to relitigate facts; rather, this court's jurisdiction is limited to claimed violations of federal constitutional rights. Pulley v. Harris, 465 U.S. 37, 41 (1984); Tankleff v. Senkowski, 135 F.3d 235, 246 (2d. Cir. 1998). Under AEDPA § 2254(e)(1), determinations of fact by a state court are "presumed to be correct," and a habeas court reviewing the trial record "must credit every inference that could have been drawn in the State's favor, whether the evidence being reviewed is direct or circumstantial." Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir. 1988) (citations omitted). It is not for such a court to reassess issues of witness credibility or evidentiary weight. See Herrera v. Collins, 506 U.S. 390, 400-01 (1993); Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999). Bruno's factual arguments, therefore, do not provide any basis for relief. For the reasons stated above, the Report is adopted, the writ is denied, and the petition is dismissed. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Reasonable jurists could not conclude that Bruno's petition should have been resolved in a different manner, and the issues presented are not "adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).


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