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ACOSTA v. ARTUZ

July 6, 2005.

VICTOR ACOSTA, Petitioner
v.
C. ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM AND ORDER

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.

Background

  (1)

  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.

  (2)

  Petitioner was charged by a Kings County Grand Jury with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25[1], [3]); one count of Robbery in the First Degree (N.Y. Penal Law § 160.15[3]); and one count of Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01[2]).

  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 43-44.

  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 ...


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