The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
REPORT AND RECOMMENDATION
On May 18, 2004, Petitioner Bruce Eckhardt, represented by counsel, filed a Petition under 28 U.S.C. § 2254for a writ of habeas corpus. He challenges the judgment entered on July 23, 2001, in New York Supreme Court, Otsego County, convicting him, after a jury trial, of Murder in the Second Degree (New York Penal Law § 125.25(1)), and sentencing him to an indeterminate term of from 25 years to life. Petitioner's conviction was affirmed by the Appellate Division, Third Department, and leave to appeal to the Court of Appeals was denied. People v. Eckhardt, 761 N.Y.S. 2d 338 (N.Y. App. Div. 2002); leave denied 100 N.Y.2d 620 (Exhibits C, E).
The Petition for habeas relief is based upon the following grounds:
1. His Fourth Amendment rights were violated when evidence was used against him that had been obtained pursuant to an unconstitutional search and seizure.
2. His Fifth and Sixth Amendment rights were violated when statements were used against him that were obtained without Miranda warnings and without his attorney being present.
III. THE RELEVANT FACTUAL BACKGROUND
Petitioner was indicted for allegedly murdering his estranged girlfriend, Donna Evans. Prior to trial he moved to suppress physical evidence that had been seized, without a warrant, from the residence that he had shared with Ms. Evans and from a rental car. He also sought to suppress statements that he had made that were obtained without prior Miranda warnings and at a time that he claims he was represented by counsel.
Since I find, as discussed in Part IV.A below, that Petitioner's Fourth Amendment claim is not cognizable in this habeas proceeding, I will not address the facts underlying that claim. With respect to his Fifth and Sixth Amendment claims, on several occasions statements were obtained from Petitioner during the period August, 1998, through December 16, 1999, when he was arrested*fn1 .
At the County Court suppression hearing, attorney William Schebaum testified that from June or July through September of 1998, he represented Petitioner in an Otsego County Family Court matter involving Ms. Evans. (Trial Transcript, Vol. 1, Hearing of 8/28/00 at 43-44.) At some point during that period he had a telephone conversation with a member of the New York State Police. He initiated the call because Petitioner had told him that the State Police wanted to talk to Petitioner and also because there was an issue concerning Petitioner's access to the residence he had been sharing with Ms. Evans. (Id. at 45-46.) Mr. Schebaum testified that in the telephone conversation with an unidentified member of the State Police "I indicated that I was [Petitioner's] attorney and I was representing him and that should they want to speak with him, that they could let me know or contact me in some fashion and maybe something could be arranged". (Id. at 47.) He could not recall giving the officer a specific instruction not to question Petitioner in his absence (Id. at 48); indeed, he specifically disavowed a statement he had made in an affidavit that he had instructed the police not to question Petitioner. He testified: "That affidavit probably needs to be corrected somewhat." (Id. at 48-49.)
Mr. Schebaum also could not recall whether he was told that the police wanted to talk to Petitioner about Ms. Evans' disappearance. (Id. at 48, 61.) He could not recall ever saying anything to the police specifically related to the disappearance of Ms. Evans. (Id. at 69.) Although his affidavit stated that this conversation occurred on August 1, 1998, and it was with the State Police in Keesville, New York, in his testimony Mr. Schebaum disavowed these statements. (Id. at 55.) He made no notes about the conversation. (Id.. at 56.)
A New York State Police Investigator, Kevin More, testified that on August 13, 1998, he had a telephone conversation with Mr. Schebaum. Investigator More testified that Mr. Schebaum called up and wanted to talk about, he said was a matter of some checks, that a subject by the name Bruce Eckhardt had some dealings with his employer over some checks. He said that, he asked if I was investigating the case and I told him that I wasn't and I mentioned that he had spoken to Sergeant Brown a couple weeks prior to that time about the checks and he also mentioned that he was representing Mr. Eckhardt in a Family Court matter. He said that -- he said he had spoken to Mr. Eckhardt and told him that if the State Police were looking for him, to come on in and get whatever matter taken care of that he had to. He also said that Mr. Eckhardt was staying at his brother's house and that if we needed to get a hold of him, that Mr. Schebaum could get him and have him come in the following day.
(Id. at 86.) According to Investigator More, Donna Evans was not discussed during the conversation. (Trial Transcript, Vol. 2, Hearing of 9/25/00 at 9.) The investigator made notes of the conversation after it concluded. (Id. at 8.)
In his decision the County Court Judge ruled:
Mr. Schebaum's testimony, at odds as it was with his previously submitted affidavit, significant portions of which he disavowed at the hearing, cannot be relied upon to establish that he communicated to the New York State Police that he represented the Defendant in connection with the disappearance of Donna Evans. Mr. Schebaum's testimony not only disavowed certain factual statements in his affidavit, the sum and substance of his testimony was extremely vague as to dates, to whom he spoke and about what he spoke ... Schebaum's claim that he specifically told some member of the state police that he represented Defendant in connection with the disappearance of Donna Evans is simply not established by the credible evidence. His testimony did not establish that he represented the defendant in connection with the disappearance of Ms. Evans, nor that he or the Defendant ever communicated this to the police.
(State Court Records, Ex. I at 106-07.) The Judge further found:
To the extent Mr. Schebaum's testimony at the hearing was inconsistent with that of Investigator More's, the Court resolves those discrepancies in favor of the People's evidence. (Id. at 108.) The Court also found that Petitioner's right to ...