The opinion of the court was delivered by: Trager, J.
Nelson Rivera ("petitioner" or "Rivera") files this pro se petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2254, claiming that he was denied due process of law and equal protection under the Fourteenth Amendment of the United States Constitution. For the following reasons, the petition is denied.
Petitioner and his co-defendant, Robert Molina ("Molina"), were indicted for the burglary and robbery of Bonnie Mejia ("Mejia"). Queen County Indictment 1894/94. Mejia was to be the main testifying witness against petitioner and Molina in the upcoming burglary/robbery trial. However, three days before the burglary/robbery case was to go to trial, Mejia was reported missing by her family.
When the Nassau County detectives assigned to the burglary/robbery case learned of Mejia's disappearance, they sought out Rivera and Molina at the Criminal Court building in Queens County, where the two men had been for a proceeding related to the burglary/robbery trial. Traill Aff. at ¶ 8. As Rivera and Molina were exiting the courthouse, the detectives asked Rivera and Molina if they would accompany them to the Nassau County precinct to answer questions about Mejia's disappearance. Rivera and Molina agreed. Traill Aff. at ¶ 8. Once at the Nassau County precinct, the pair were separated and questioned over several hours; they were read Miranda warnings on multiple occasions, each time refusing to exercise those rights. Traill Aff. at ¶ 9. After hours of questioning, during which time the suspects remained unhandcuffed, were offered food and beverages and given access to a restroom, Molina eventually confessed, giving detectives a detailed description of both the burglary/robbery and the murder/kidnapping perpetrated against Mejia and implicating Rivera in the crimes. Traill Aff. at ¶¶ 9-12. Police then accompanied Molina to the place where Rivera and Molina had buried Mejia. Traill Aff. at ¶ 12.
Upon returning to the precinct, Molina provided police with a written confession, implicating himself and Rivera in the burglary/robbery, witness tampering, kidnapping and murder of Mejia. After detectives showed Rivera a copy of Molina's written statement and read him his Miranda warnings, Rivera made a signed statement, implicating himself in the murder and kidnapping of Mejia. Dunaway/Mapp/Huntley Hearing Transcript ("Hearing Tr.") at 460-69. Rivera also placed a telephone call during which further incriminating statements were made. Hearing Tr. at 469-71; Traill Aff. at ¶ 12.
Evidence adduced at trial explained the events leading to Mejia's death as follows. Rivera and Molina had kidnapped Mejia hoping to intimidate her so that she would not testify in the burglary/robbery trial. Traill Aff. at ¶ 4. When she refused, Rivera and Molina drove Mejia to a location in Queens where they had already dug a grave for her and strangled her to death. Traill Aff. at ¶¶ 6-7. They removed Mejia's teeth and fingertips and poured and sulfuric acid on her face and body so that if Mejia was found, she could not be identified. Traill Aff. at ¶ 7. They then covered Mejia with lime and earth until the grave was completely covered. Traill Aff. at ¶ 7. The two gathered Mejia's personal property and items used to commit the crime and disposed of them in various locations throughout Brooklyn and Queens. Traill Aff. at ¶ 7.
For these crimes, both petitioner and Molina were charged with two counts of Murder in the Second Degree (New York Penal Law §§ 125.25(1) and (3)), Kidnaping in the First Degree (New York Penal Law § 135.23(3)) and Tampering with a Witness in the First Degree (New York Penal Law § 215.13(1)). Queens County Indictment 699/95; Traill Aff. at ¶ 13.
In a joint suppression hearing, Rivera and Molina each attempted to suppress the incriminating statements they had made to police, alleging that the statements were coerced and obtained despite an indelibly attached right to counsel. Traill Aff. at ¶ 14. The court denied both suppression motions. Traill Aff. at ¶ 14.
After the joint-suppression hearing, Molina and Rivera were tried separately. Rivera exercised his right to a jury trial on the murder/kidnapping/witness tampering charges, which was held in the New York Supreme Court in Queens County. The jury found Rivera guilty of all counts charged. He was sentenced to two 25-year to life terms, one for each murder count, one 25-year to life term for the kidnaping count and one 8 1/3-year to 25-year term for the witness tampering count. The kidnaping count was ordered to run consecutively to the murder counts while all other sentences were ordered to run concurrently.*fn1
Once the murder/kidnapping/witness tampering trial was complete, the state then pursued the original burglary/robbery charge against Rivera. Rivera pled guilty to all of the charges covered by Indictment 1894/94, including robbery, burglary, weapons possession and possession of stolen property, with the understanding that: (1) any new jail time would be served concurrently with the already ordered terms of imprisonment for murder, kidnaping and witness tampering; and (2) any reversal of the murder/kidnapping/witness tampering charges would allow Rivera to withdraw his guilty plea on the burglary/robbery charges. Traill Aff. at ¶ 23.
a. Molina's and Rivera's Direct Appeals
On March 9, 1998, Rivera's co-defendant, Molina, filed a direct appeal with the Appellate Division, Second Department, arguing that the trial court erroneously admitted incriminating statements obtained in violation of his right to counsel. The Appellate Division succinctly concluded that "the statements obtained following the discovery of the body should have been suppressed" but held that "their admission constituted harmless error in light of the overwhelming evidence of the defendant's guilt." People v. Molina, 248 A.D.2d 489, 490, 670 N.Y.S.2d 44, 46 (2d Dep't 1998) (citing People v. Cohen, 90 N.Y.2d 632, 687 N.E.2d 1313, 665 N.Y.S.2d 30 (1997) and People v. Burdo, 91 N.Y.2d 146, 690 N.E.2d 854, 667 N.Y.S.2d 970 (1997)).
Following Molina's appeal, Rivera, by counsel, filed a direct appeal with the Appellate Division, Second Department, arguing that, just as the Appellate Division had found in People v. Molina, 248 A.D.2d 489, 490, 670 N.Y.S.2d 44, 46 (2d Dep't 1998), the incriminating statements Rivera made violated his right to counsel, and, therefore, should have been suppressed. Specifically, Rivera argued: 1) that police exploited Rivera's right to counsel by questioning him on the robbery matter, for which he was represented, to get information about the murder/kidnapping, for which Rivera was not represented, Brief for Defendant-Appellant ("Def. App. Br.") at 54 (citing People v. Ermo, 47 N.Y.2d 863, 392 N.E.2d 1248, 419 N.Y.S.2d 65 (1979)); and 2) because he was represented by counsel on the burglary/robbery charge, and the murder/kidnapping/witness tampering case was so intertwined with the burglary/robbery case, Rivera could not waive his Miranda rights without his attorney present, Def. App. ...