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Attawwab v. Gurdich

July 23, 2007

HAMZA ATTAWWAB, PRO SE, PETITIONER,
v.
ROY A. GURDICH, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM AND ORDER

On September 14, 2000, Hamza Attawwab ("Petitioner" or "Attawwab") was convicted in New York State Supreme Court, Kings County, after a trial by jury, of two counts of murder in the second degree and of criminal possession of a weapon in the second degree. The trial court sentenced petitioner to concurrent prison terms of twenty-five years to life for each of the murders and to fifteen years for the weapon possession. The Appellate Division, Second Department, affirmed petitioner's conviction on April 14, 2003. People v. Attawab, 304 A.D.2d 672, 757 N.Y.S.2d 485 (2d Dep't 2003). The New York Court of Appeals denied petitioner's application for leave to appeal on July 17, 2003. People v. Attawwab, 100 N.Y.2d 578, 764 N.Y.S.2d 388 (2003). On May 7, 2003, while petitioner's application for leave to appeal to the Court of Appeals was pending, petitioner made a motion pro se for a writ of error coram nobis in the Appellate Division claiming ineffective assistance of appellate counsel. On August 18, 2003, the Appellate Division denied petitioner's coram nobis application. People v. Attawwab, 307 A.D.2d 1000, 763 N.Y.S.2d 496 (2d Dep't 2003). Petitioner did not apply for leave to appeal the denial of his coram nobis motion to the Court of Appeals.

Petitioner challenges his conviction through the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the grounds that (1) petitioner's right against self-incrimination was violated because his videotaped statement was coerced, and (2) the trial court's preclusion of petitioner's medical records from evidence denied petitioner a fair trial. For the reasons set forth below, the petition is denied.

I. Facts

On February 16, 1999, at approximately 5:00 a.m., petitioner served as a lookout while two unapprehended others shot and killed Clifford Josephs and Alan Howard in the lobby of 351 Howard Avenue in Brooklyn. On February 27, 1999, a detective with the 73rd Precinct, Detective Ferro, asked Officer Cocco, a police officer with the 73rd Precinct, to bring petitioner into the police station.

(R. at 78-79.)*fn1 Around 8:00 p.m., Officer Cocco returned with petitioner and placed him in the Robbery Apprehension Module Office, a windowless room of ten to twelve by fifteen feet, with a one-way mirror on one wall. (Id. at 108-09, 111, 132-33.)

At 11:10 p.m., without telling petitioner that he was under arrest, Detective Ferro and another detective, Detective Bazatta, explained that they were investigating a murder that had occurred on February 16, 1999, at 351 Howard Street, and wanted to talk to him because they believed he had been in the area at the time of the shooting. (Id. at 109-12, 125.) Detective Ferro then read petitioner the Miranda warnings. (Id. 112-13.) At 11:23 p.m., petitioner waived his Miranda rights and gave a statement that he was at his grandmother's house in Allentown, Pennsylvania from February 12, 1999 through February 26, 1999. (Id. at 113-15, 152.) The detectives wrote down petitioner's statement, and after reading it back to him, petitioner told the detectives that he did not want to talk anymore. (Id. at 117, 142.)

Nevertheless, around 2:00 a.m. on February 28, 1999, Officer Cocco questioned petitioner for about three to five minutes, without knowing that he had invoked his Miranda rights. (Id. at 83, 87-88.) Specifically, Officer Cocco asked petitioner if the story he told the detectives was truthful. Petitioner responded, "no, not really." (Id. at 237.) Officer Cocco then asked petitioner to explain what happened on February 16, 1999. (Id.) Petitioner stated that he stood on the corner during the incident serving as a look-out. (Id.) When asked what he meant by lookout, petitioner said "I was supposed to go like 'woop-woop' to let them know that the cops were coming." (Id. at 225, 238.) Officer Cocco then asked petitioner if he would be willing to tell the two detectives what he had just said. Petitioner said that he would. (Id. at 238.) Officer Cocco testified that he did not use any "force" to change petitioner's mind about speaking with the detectives and that he did not notice any physical injuries on petitioner at that time. (Id. at 89.)

Shortly after 2:00 a.m., Detective Ferro and Detective Bazatta rejoined Officer Cocco and petitioner in the interviewing room and, without administering new Miranda warnings, obtained an oral and a written statement from petitioner. (Id. at 238.) Detective Ferro denied that upon reentering the interrogation room, petitioner started to cry and said that Officer Cocco had hit him. (Id. at 134.) Rather, Detective Ferro testified that no one hit petitioner through his coat, nor did anyone hit him at all while he was in police custody. (Id. at 140-41.) Officer Cocco further testified that he never told petitioner to say that he had been the lookout, nor to implicate Michael Cunningham ("Cunningham") and Chris "Iceberg" Tirado ("Tirado") so that he could testify as a witness against them. (Id. 252-53.)

In relevant part, petitioner's statement was that at 3:00 a.m. on February 16, 1999, he was at 2065 Dean Street with Cunningham, Tirado and others. Cunningham decided to kill Clifford Josephs to make 2065 Dean Street "his spot," and told petitioner to see who was around outside. Petitioner checked for police and was to say "woop-woop" if he saw any. Cunningham and Tirado took the victims, Clifford Josephs and Alan Howard, inside. Five minutes later, petitioner heard a gun shot and saw Cunningham run out. A few seconds later, petitioner heard another shot and saw Tirado run out. Petitioner fled with them into an apartment at 2065 Dean Street where both Cunningham and Tirado admitted killing one of the victims. Cunningham told petitioner to keep the gun in his apartment, but petitioner's sister would not allow him to bring it in the apartment. Instead, petitioner went to Tirado's apartment where Tirado wiped off the gun, removed the clip and placed it under his mattress. Afterwards, petitioner returned to the apartment at 2065 Dean Street, where he stayed until 7:00 a.m., and then went home. (Id. at 223-26.)

The written statement covered four and one-half to five pages, and after reading the statement back to petitioner, Detective Ferro, Detective Bazatta and petitioner each signed the statement. (Id. at 144-48, 153, 222-23.) Detective Ferro then typed the statement on a DD-5 report and petitioner read and signed the DD-5. (Id. at 223.) Officer Cocco testified that he brought food to petitioner following the interview, and that he neither injured petitioner nor did petitioner appear to have any injuries at that time. (Id. at 89.)

Over twenty hours later, at 10:30 p.m. on February 28, 1999, petitioner gave a videotaped statement to Assistant District Attorney Stan Irvin ("A.D.A. Irvin") that was later introduced at trial. Petitioner's videotaped statement was consistent with the second set of statements he had given to Detective Ferro and Detective Bazatta. (Id. at 75.) Before proceeding, A.D.A. Irvin read petitioner the Miranda warnings from a printed sheet of paper and petitioner verbally waived his rights. Petitioner then asked A.D.A. Irvin what the charges were against him and about being a witness. A.D.A. Irvin clarified that no charges had been brought against petitioner yet, and that no promises were being made to him in exchange for his statement. (Id. at 34-35.) While giving the statement, petitioner twice asked the detectives the building numbers of certain buildings. A.D.A. Irvin responded, "Has anyone told you what to say? Has anyone told you we want you to say this or is this what you're telling me happened?" Petitioner answered, "Nah." Later in the statement, petitioner denied that anyone had forced him to give the statement. At trial, A.D.A. Irvin testified that, if petitioner had complained about mistreatment from Detective Ferro during the videotaped statement, he would have had another officer replace Detective Ferro in the room so that petitioner could speak freely. (Id. at 33.) Following the making of the videotaped statement, petitioner was arrested and charged with two counts of murder in the second degree (P.L. § 125.25[3]), criminal possession of a weapon in the second-degree (P.L. § 265.03[2]), and criminal possession of a weapon in the third degree (P.L. § 265.02[4]). Throughout the time petitioner was at the station house, he was allowed to eat, drink and use the restroom. (Id. at 122.)

Petitioner was brought to Central Booking on the morning of March 1, 2006. (Id. at 397.) Soon thereafter, petitioner complained that the detectives had coerced him into confessing by assaulting and threatening him. An officer referred petitioner to the Internal Affairs Bureau after seeing a bump on the back of his head. (Id. at 398-99.) After interviewing petitioner about his assault claim, the Internal Affairs Bureau took petitioner to the hospital where his bump and other complaints were noted. X-rays and CAT scans were performed, and he was given instructions for treatment of a head injury, sprain and bruises. (Def.'s Appellate Brief at 4.)

At a suppression hearing held before trial, the trial court granted petitioner's motion to suppress the statements made to Officer Cocco, Detective Ferro and Detective Bazatta after 2:00 a.m. because Officer Cocco failed to honor petitioner's earlier request not to speak anymore. (Suppression Hr'g Tr., Aug. 28, 2000, at 12.) However, the trial court denied petitioner's motion to suppress the videotaped statement because petitioner validly waived his Miranda rights to the assistant district attorney. (Suppression Hr'g Tr., ...


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