The opinion of the court was delivered by: DAVID TRAGER, District Judge
In this petition for a writ of habeas corpus, pursuant to
18 U.S.C. § 2254, petitioner Victor Acosta challenges his New
York State murder conviction. The petition, previously dismissed
by this court, has been remanded by the Second Circuit for the
sole purpose of determining if petitioner's incriminating
statement following a lineup was obtained in violation of his
Sixth Amendment right to counsel. For the reasons that follow,
the petition is dismissed.
On the evening of November 1, 1991, Dennis Cetter was fatally
stabbed inside an abandoned factory at North 10th Street and Kent
Avenue. Debra Perry, a homeless prostitute who lived in the
factory, was with Cetter during the attack. According to Perry,
she and Cetter had been using illegal drugs together when petitioner entered her room and tried to rob her and Cetter.
Cetter tried to strike petitioner with a bat, whereupon
petitioner stabbed Cetter thirteen times and then fled.
Darryl Higgs, a homeless drug user who lived with Perry at the
factory but was standing outside at the time, heard Perry's
screams, whereupon he came to her aid and witnessed petitioner
running away from the factory. Cetter, covered in blood, emerged
from the factory and collapsed in Higgs' arms. Higgs heard Cetter
speak of petitioner and heard Perry screaming "Green Eyes" the
name by which both Higgs and Perry knew petitioner. Perry then
summoned firemen from a nearby firehouse. Higgs and Perry both
spoke to police detectives who arrived shortly thereafter.
On November 3, 1991, the police arrested petitioner after
responding to a tip. Higgs and Perry identified petitioner in a
lineup that same day. After the lineup, petitioner made a
statement to the arresting officer, claiming he had stabbed
Cetter in self-defense.
Petitioner was charged by a Kings County Grand Jury with two
counts of Murder in the Second Degree (N.Y. Penal Law §
125.25, ); one count of Robbery in the First Degree (N.Y.
Penal Law § 160.15); and one count of Criminal Possession of a
Weapon in the Fourth Degree (N.Y. Penal Law § 265.01).
A pretrial suppression hearing, held August 13-14, 2002 before Justice James Starkey, established the following: On the
evening of November 1, 1991, New York City Detectives Nancy
Gaffney and Ramon Aguilar*fn1 were assigned to investigate
Cetter's murder. Detective Gaffney interviewed Perry, while
Detective Aguilar interviewed Higgs, both of whom reported they
hade known "Green Eyes" from before the attack. They described
"Green Eyes" as a male Hispanic with long dark hair, 5'8" tall,
and weighing 150 pounds. Perry also told Gaffney that "Green
Eyes" had previously been arrested for stabbing a man named
"Indio." Through a computer search, detectives were then able to
obtain a photograph of petitioner along with his real name. On
November 2, Detective Aguilar showed this photograph to Perry,
who identified the person depicted as Green Eyes.
On November 3, Detective Gaffney and two other officers
arrested petitioner at the corner of North 7th Street and Kent
Avenue after responding to a phoned-in tip. Several hours after
petitioner's arrest, at about 5:45 p.m., Detective Aguilar
informed petitioner of his Miranda rights. Petitioner then
asked for an attorney, and the police ceased questioning him
about anything other than pedigree information. Then, at about
6:19 p.m., Perry, Higgs and a third witness separately viewed a
six-member lineup and identified petitioner as the murderer.
After the lineup, petitioner informed Detective Aguilar that he
wished to speak to the district attorney. Detective Aguilar,
after consulting with the assistant district attorney, informed
petitioner that the district attorney could not speak to him
without an attorney present. See Hr'g. Tr. at 22-25. Shortly
thereafter, Detective Aguilar took petitioner to a second-floor
bathroom to prevent petitioner from seeing any of the witnesses.
See id. at 25. There, petitioner told Detective Aguilar that
he had entered the factory on November 1 with the intent to
commit a robbery and had stabbed Cetter in self-defense after
Cetter attacked him with a baseball bat. He also mentioned that
he had been smoking crack that night and believed that Cetter and
Perry had smoked crack as well. See id. at 25-26. Detective
Aguilar claimed that he did not interrogate petitioner or restate
any Miranda warnings. He could not recall whether or not he had
discussed the results of the lineup with him. See id. at
The hearing court credited the testimony of prosecution
witnesses and issued findings of fact consistent with the above
summary. See id. at 83-89. Specifically, the hearing court
found that Detective Aguilar had taken petitioner to the men's
room in order to avoid contact with witnesses, and that while in
the men's room, petitioner made a statement without any
interrogation or invitation to speak on the part of Detective Aguilar. See id. at 87. The hearing court made no findings of
fact concerning whether petitioner had been informed of results
of the lineup before making his statement.
Petitioner went to trial in April 1993 before Justice Jerome
Kay. Higgs and Perry both testified for the prosecution in a
manner consistent with summaries given above. A third witness, a
prostitute, testified that on the day of the killing, petitioner
had given her a bloody knife, told her he had just stabbed
someone and ordered her to clean the knife. Various law
enforcement officers and medical examiners provided additional
testimony regarding the cause of death, the recovery of the
knife, the lineup procedures and other aspects of the
investigation. Of most importance for current purposes was
testimony by Detective Aguilar who stated that, in fact, he had
told petitioner the results of the lineup. Moreover, the context
of Aguilar's testimony seems to indicate that petitioner made his
spontaneous statement shortly after receiving this information.
See Trial Tr. at 266. Although this testimony ...