The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Theinstant petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 was referred to the Hon. George H. Lowe, United States Magistrate Judge, for a Report and Recommendation. See 28 U.S.C. § 636(b); Local Rule 72.4. The Report and Recommendation dated April 12, 2007 recommended that the Petition be denied and the action dismissed. Dkt. # 67. Petitioner, through counsel, filed objections to the Report and Recommendation. Dkt. # 69.
When objections to a magistrate judge's Report and Recommendation are lodged, the Court reviews the record de novo. See 28 U.S.C. § 636(b)(1). After such a review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]. The [Court] may also receive further evidence or recommit the matter to the magistrate [judge] with instructions." Id.
Having review the record de novo and having considered the issues raised in the petitioner's lengthy objections, this Court has determined to accept and adopt the recommendation of Magistrate Judge Lowe for the reasons stated in the April 12, 2007 Report and Recommendation. Only one issue bears discussion.
Petitioner claims that he was subjected to an unconstitutional custodial interrogation by an unknown officer between the time he was transported to the police station and the time he discussed and admitted his involvement in the crimes of conviction at the police station. In addressing this claim, Magistrate Judge Lowe wrote:
Petitioner asserts that "[d]uring the trial, it was established that Roy Bolus was questioned three times by three different officers" (Dkt. No. 53 at 11), and that he was advised of his "Miranda" rights only prior to the "third" interrogation. This process of "question first" and then provide "Miranda" warnings was rejected by the Supreme Court, Petitioner argues, in Missouri v. Seibert, 542 U.S. 600 (2004).
The Appellate Division's decision addresses police questioning of Petitioner on two occasions, not three:
It appears from the testimony at the suppression hearing that defendant was arrested in Ulster County at approximately 11:00 A.M. on March 9, 1988. He was turned over to State Trooper Anthony Barrera for transport to State Police headquarters in Albany County. When Barrera got into the troop car, he asked defendant his name and then inquired, without advising defendant of his Miranda rights, what happened, to which defendant replied "I guess I hung out with the wrong crowd". There was no further conversation between Barrera and defendant during the one-hour drive to State Police headquarters. It further appears that defendant slept during most of the trip. When Barrera and defendant arrived at State Police headquarters, defendant was met by [Albany Police Detective] Keegan who advised him of his Miranda rights and asked him if he was willing to give a statement. Defendant acknowledged his understanding of his rights and agreed to cooperate and give a statement.
The alleged third questioning by an "unknown officer" is described in graphic detail in Petitioner's affidavit dated November 30, 2004, (some sixteen years after it allegedly took place), submitted as an attachment to his "Corrected Traverse" in this proceeding ("the unknown officer questioning"). Dkt. No. 56, Attach. However, at the County Court suppression hearing, Petitioner's trial attorney addressed only two questionings, by State Trooper Barrera ("the Barrera questioning") and by Albany Police Detective Keegan ("the Keegan questioning"). Suppression Hr'g at 473-85. He made no mention whatsoever of the unknown officer questioning, nor did the District Attorney (Suppression Hr'g ("SH") at 495-98), nor did the Court in its Decision (SH at 516-17). Similarly on direct appeal to the Appellate Division, in "Appellant's Brief & Appendix," at Point V, Petitioner's appellate attorney addressed only the Barrera questioning and the Keegan questioning. However, Petitioner himself submitted a pro se "Supplementary Brief for the Appellant" to the Appellate Division, and here he did reference an unknown officer questioning, at pages nine through eleven. This reference, however, was brief, and without any description of what occurred during the questioning. It stands in stark contrast to the graphic description provided by Petitioner in his affidavit of November 30, 2004.
Following the Appellate Division's affirmance, Petitioner's appellate counsel sought review from the Court of Appeals, based in part upon the Miranda claim, but again he made no reference to the unknown officer questioning. Letter from Colin J. Kenneally, Esq. to the Court of Appeals (September 21, 1992). Petitioner submitted a pro se letter to the Court of Appeals, enclosing his pro se brief, but in the letter he did not address his Miranda claim at all nor did he mention in any way the unknown officer questioning. Letter from Roy J. Bolus to the Court of Appeals (September 28, 1992).
Rep. Rec. pp. 13-16 (footnotes omitted, emphasis in original).
Magistrate Judge Lowe opined that Petitioner's due process claim arising from the purported interim interrogation was procedurally barred because it had not been presented to the State court. See Rep. Rec. pp. 13- 18. Magistrate Judge Lowe also correctly noted:
Federal courts may only consider the substance of procedurally barred claims where the petitioner can establish both cause for the procedural bar and prejudice, or alternatively, that a fundamental miscarriage of justice would occur absent federal court review. See St. Helen v. Senkowski, 374 F.3d at 184 ("[i]n the case of procedural default (including where an unexhausted claim no longer can proceed in state court), [federal courts] may reach the merits of the claim 'only if the defendant can first demonstrate either 'cause' and actual 'prejudice,' or that he is actually ...