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Bennett v. Poole

August 5, 2008

JAMES TIMOTHY BENNETT, PETITIONER,
v.
THOMAS POOLE, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner James Timothy Bennett ("Bennett" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his April 12, 2000 conviction on charges of second degree murder and first degree robbery. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

A. Pre-trial Proceedings

Bennett's first contact with law enforcement occurred in the spring of 1997. Investigator Patrick J. Finnerty ("Inv. Finnerty") of the Erie County District Attorney's was investigating a series of financial crimes involving a missing person named Ralph Lindeman. Inv. Finnerty's investigation led him to Bennett, who appeared to have been involved in the fraudulent cashing of checks belonging to Lindeman. R.81-82.*fn1 Inv. Finnerty contacted Bennett by telephone, reaching him at his home in Medina in Orleans County. Bennett agreed to meet with Inv.

Finnerty at a Napa Auto Parts store parking lot on Wehrle Drive outside of the City of Buffalo on the afternoon of May 8, 1997. Inv. Finnerty waited in his vehicle; his colleague, Inv. Cleary, also was present but in a different car. Bennett arrived on a motorcycle and voluntarily entered Inv. Finnerty's vehicle, where Finnerty showed him various checks payable to Lindeman and photographs of individuals cashing these checks. R.83-84. Inv. Finnerty testified at the suppression hearing that he showed Bennett one particular photograph which he believed clearly depicted Bennett. R.85. When asked if he recognized anyone in those photographs, Bennett stated that one individual looked like him, but was not him. See Resp't Ex. F at A:208. Inv. Finnerty said that he had additional photographs that he wished to show Bennett and asked if he would be willing to continue their discussion at the nearby state police barracks in Clarence. Bennett agreed. R.86. Bennett did ask something to the effect of, "do you think I should call a lawyer." R.120-21; see also. Resp't Ex. F at A:160. Inv. Finnerty said that he could not give him legal advice." R.121. Inv. Finnerty said words to the effect of, "you could make the decision or you could make a determination about getting a lawyer after you see all the stuff . . . ." R.121. Bennett did not mention calling a lawyer again during his interview with the investigators.

R.121, 167.

Bennett was not under arrest and Inv. Finnerty was not intending to arrest Bennett based on the information he had then. Inv. Finnerty was trying to determine how he would have had the financial instruments of Lindeman, but he obviously had not spoken to Lindeman to know if this was authorized or not. R.86.

Once at the barracks, both investigators continued to discuss the matter with Bennett and were joined some time later by Inv. Cooley. During their conversation, Bennett admitted that he had negotiated a number of Lindeman's checks, used his credit cards, sold several of Lindeman's vehicles, all of which was done in conjunction with an individual named Jeremiah Cordero.

R.89. Inv. Finnerty began to type up a statement which Bennett reviewed, read aloud, made corrections to, and signed. R.91-95. The written statement included a preamble notifying Bennett of his rights under Miranda. However, Inv. Finnerty did not read Bennett the Miranda warnings at any time during their discussions on the 8th of May 1997.

In the typewritten statement, Bennett indicated that in November 1996, he cashed various checks and financial instruments payable to Ralph Lindeman with identification given to him by Jerry Cordero. Cordero never told him how he had gotten Lindeman's identification. Bennett said that he kept 20% of the proceeds and gave the remaining 80% to Cordero. According to Bennett, he did not know what had happened to Lindeman.*fn2 At that point, Inv. Finnerty was not intending to arrest Bennett. Bennett did not ask to leave at any point, and never asked to stop the interview or anything of that nature. R.97-98.

Shortly thereafter, while Bennett was still at the state police barracks, a couple of other investigators took Inv. Finnerty aside and informed him that they had performed a check of the motorcycle driven by Bennett and discovered that it had been reported stolen. R.96. According to the investigators, up until this point, Bennett had been free to leave the barracks had he chosen to do so. R.97. However, once the information about the stolen motorcycle came to light, the investigators informed Bennett that he was going to be criminally charged with regard to that.

R.98. They did not charge Bennett with any crimes regarding the Lindeman matter at that time. Id.

2. The July 22, 1999 Statement

As the investigation progressed, the police focused their attention on Bennett and Cordero, the individual whom Bennett had mentioned in his previous statement. On July 22, 1999, Bennett appeared at the Orleans County District Attorney's Office in Albion, New York, along with his attorney, the Orleans County Public Defender. Also present were prosecutors from the Orleans County and Erie Count district attorneys' offices, an investigator from the Orleans County Sheriff's Department, and Inv. Finnerty. R.11. Before the interview started, Inv. Finnerty advised Bennett of his rights under Miranda. R.103-04. At that time, Bennett was not under arrest for the Lindeman matter.

At the July 22, 1999, conference, Bennett was questioned by both of the assistant district attorneys, and his statement was recorded stenographically and transcribed. This statement provided more inculpatory details regarding Bennett's involvement with Lindeman. Bennett testified that on the night in question in November 1996, the plan was for him to drop Cordero off near Lindeman's house and wait for Cordero to come back. R.18. Cordero "was planning on going into the house and getting checks from Ralph Lindeman and possibly tying him up" to "persuade [Lindeman] to sign the checks or give Jerry [Cordero] the checks." R.18-19. Before this occurrence, Bennet had already cashed a check written by Lindeman for approximately $9,000. R.19. Bennett testified that he did not know why Lindeman had given checks to them earlier, but in November, Cordero decided to tie Lindeman up in order to get him to sign the checks. R.20. About an hour and a half later, Cordero returned driving Lindeman's car, a Ford Crown Victoria LTD sedan. They drove back to their apartment building on Delaware and parked Lindeman's car. Bennett did not remember what they did once back at the apartment.

At a later time, Cordero told Bennett "that Ralph Lindeman had died, he said that when he had tied him up he had strangled him and Ralph had died from that." R.22. Bennett was "pretty sure" that the strangling had occurred on the night in November. Id. At Cordero's request, Bennett accompanied him to Lindeman's house and helped remove Lindeman's corpse, which was wrapped in a blanket. R.22-a. Bennett stated that neither he nor Lindeman removed any financial items, credit cards, checks from the house. R.23.

He and Cordero talked about taking the body to a "place that was quiet, isolated[,] where we could dispose of [it] and he said . . . he had a gas can in the car, he said he was going to torch it." R.24. They just drove around Orleans County until they found a spot they both agreed was appropriate, and they removed the body from the car and carried it about 100 yards from the road. R.24. Bennett stated that he could and would assist the investigators in locating the body.

R.24-25. Cordero doused the corpse with gasoline and sit it on fire, and they both drove away as the body was still burning. R.25. He and Cordero drove back out to the site about three to six weeks later, and Cordero used a folding knife to sever Lindeman's head from his body. R.35. Cordero said that he "wanted to make it harder for them to identify the body." R.36. Cordero and he transported the head to Mix Road where Cordero lit the head on fire and tossed it about ten to twenty feet off the road. R.36.

They returned to Buffalo that night. Some time later, they went to Lindeman's house and "got like a stereo and some cash that was lying around . . . [but] didn't get any financial instruments there or any identification." R.26. Bennett did not know if Cordero picked up any financial instruments at that time. R.26-27.

Bennett eventually sold Lindeman's Crown Victoria to a car dealership in Hamburg for about $10,000. Bennett cashed the checks on two separate days and gave the money to Cordero who gave him back "upwards of about one-thousand dollars." R.27.

Bennett admitted that some time after that, he conducted a series of about eight financial transactions impersonating Lindeman--he cashed checks, made credit card purchases, and cashed certificates of deposit. R.27-28. He diverted a total of about $35,000 by impersonating Lindeman. R.28.

At some point in time, Bennett became aware that Lindeman also had a country home in Akron, New York. R.28. Bennett believed that he had been there but did not remember loading a quantity of Lindeman's property from that residence into Lindeman's white Ford pick-up truck.

R.28. However, he did remember unloading the truck and recalled selling several items from the truck, such as a battery charger. R.29. Bennett's father was present during some of the sales of these items. R.30. Bennett stated that he drove the pick-up down to Long Island where he sold it.

R.30.

Bennett stated that he had "a very good suspicion that Jerry [Cordero] had obtained a loan from Mr. Lindeman and was not paying it back and he was, I don't know, used this opportunity to get him out of the picture so-to-speak." R.37. The questioning of Bennett terminated at this point.

Bennett was not under arrest at the conclusion of this statement. R.103-11. Afterwards, Inv. Finnerty and Inv. Larkin drove Bennett to the locations where Bennett had stated the parts of Lindeman's body were thrown. R.112-13. They returned to the district attorney's office where further discussion occurred between the lawyers. Charges were filed against Bennett later that day. R.114.

3. The Grand Jury Proceeding

On September 30, 1999, Bennett, accompanied by his attorney, appeared before an Orleans County grand jury. Bennett executed a waiver of his right to immunity from testifying before the grand jury and a waiver of his right to remain silent. Bennett acknowledged that he was under no obligation to testify, and that in exchange for his testimony and cooperation in the prosecution of Cordero, he would be permitted to "enter a plea to a [class] B violent felony . . . , and that in addition thereto, [he] would be pleading to . . . burglary second, grand larceny third and a [sic] forgery in the second degree . . . ," R.820-21.

In his sworn grand jury testimony, which was later read into the record at petitioner's trial, R.819-882, Bennett told yet another story. Bennett repeated his admissions that he had forged checks and other financial instruments belonging to Lindeman, and that he stolen and sold numerous items of Lindeman's property. However, Bennett told the grand jury, for the first time, that he had been present at the time of Lindeman's death. According to Bennett's grand jury testimony, instead of simply waiting for Cordero in the car, he joined Cordero in Lindeman's apartment. He understood beforehand that he was to be there when Cordero confronted Lindeman, and that Cordero "was going to tell [Lindeman], he was going to tell him that he wanted cash from him." R.837. Bennett acknowledged, "I knew it wasn't legal, that it wasn't a legal method we were going to use to get the money." R.839.

Bennett testified that when he entered the apartment, "Jerry had begun raising his voice to Mr. Lindeman [saying] he wanted him to give him some money, to give him, he wanted him to give him some checks." R.841. Then Cordero attacked Lindeman, striking him with his fists. Bennett testified that he attempted to get Cordero to stop, but he was unsuccessful. R.842. Eventually, Bennett realized that Cordero had killed Lindeman. R.843. Cordero threatened Bennett and warned him not to say anything about what had happened. R.847-48.About three days later, Bennett and Cordero returned to Lindeman's apartment and removed the body. They drove the corpse to Orleans County where they disposed of it in the manner described by Bennett in his earlier statements. R.848-54.*fn3

The grand jury returned an indictment later that day charging both Bennett and Cordero with three counts of murder (one count of intentional murder and two felony murder counts), first degree burglary, and first degree robbery. See R.5-8.

4. Petitioner's Subornation of Perjury in the Grand Jury

Subsequently, the District Attorney revoked his previous offer to allow petitioner to plead guilty to a class B violent felony (first degree manslaughter) in satisfaction of the charges against him. R.61, 260. The District Attorney stated that it had been discovered that Bennett had procured perjury from two individuals--his fiancée, Amy Wasnock, and a friend of hers, Karen Beu--to corroborate Bennett's testimony that Cordero was involved in the murder. R.67, 260.*fn4 Bennett then moved to dismiss the indictment based on the prosecution's revocation of the cooperation agreement. R.61. The trial court consequently ordered an evidentiary hearing on the issue of Beu's and Wasnock's perjury. R.175, 260-61.

The hearing was held on December 28, 1999. See R.177-259. Beu said that Wasnock had approached her and given her a letter that she wanted Beu to memorize and tell to the authorities and at any court hearings. R.183-87. The letter described an incident one night in which Beu supposedly had overheard an argument between Cordero and Bennett over a check, during which Cordero admitted killing Lindeman. Beu said that the contents of the letter were untrue. Beu testified that she subsequently had met with Bennett at the Orleans County Jail; Wasnock was present, too. Bennett asked "if I would tell this story before any future hearings or investigation, that sort of thing." R.189. Bennett acknowledged that he had written the letter to Wasnock.

R.189. Beu told Bennett that she would do it, but in her mind she still was not sure. R.190-91. Beu later told the false story to Inv. Larkin and before the grand jury. R.194, 196. Beu indicated that she had been charged with a felony as the result of her perjury, and had agreed to plead guilty to a misdemeanor charge. R.203-04.

Rodney Banks ("Banks"), an inmate with Bennett at the Orleans County Jail, testified for the prosecution at the hearing. According to Banks, Bennett said that "he needed to be backed up, things had to be said to back up what was said at the grand jury." R.222. Bennett told Banks that he needed "two girls that would come in and testify for him to back up what was testified [sic] at the grand jury." R.224. Bennett then gave Banks two letters and "to give them to the two girls, Nikky and Jennifer,*fn5 so they could read them and practice them so they would know what to say when it came time to testify." R.227. Bennett offered Banks $4,000 for transmitting these letters to "Nikky" and "Jennifer." Instead, Banks gave the letters to his wife to give to his attorney. R.236.

At the conclusion of the hearing, the trial court ruled that the prosecution had demonstrated, beyond a reasonable doubt, that Bennett had procured perjury on the part of Beu and Banks. R.255, 256. Beu and Banks "did clearly commit perjury" and "perjured themselves to support his [Bennett's] testimony." R.255. According to the trial court, Bennett thereby significantly undermined the People's case as it relate[d] to both him and to the former defendant, Cordero. By undermining the prosecution, he negated the plea offer that was made to him as set forth in the papers and he caused the plea bargain to become unraveled by his own criminal conduct.

R.255 (citing People v. Curdgel, 83 N.Y.2d 862 (N.Y. 1994)). The trial court concluded that the prosecution was permitted to use petitioner's grand jury testimony at trial. R.257-58; see also

R.260-61.

B. The Trial

Bennett's five-day trial was conducted on January 12-14, 2000; January 18, 2000; and January 20, 2000 in Orleans County Court (Punch, J.). A summary of the relevant trial testimony follows.

1. The Victim's Disappearance

Ruth Morrish, Lindeman's half-sister, testified first for the prosecution. The last contact Mrs. Morrish had with her brother was in early November 1996. Lindeman had called her and said that he was "afraid" and had pinned his drapes shut. Prior to this time, she typically spoke with him one to three times a week. When she returned home on or about December 1, 1996, after being away for Thanksgiving, she received a phone call from Dave Klimchuk, a neighbor of her brother's. As a result of this phone call, Mrs. Morrish and her husband, William Morrish, went over to Lindeman's house on West Avenue to check on him. R.363-65; R.373-79.

When Mr. and Mrs. Morrish arrived at the house, it was locked and the keys that they had been given by Lindeman did not work. The drapes were pinned shut so they could not see inside the house. Neither of Lindeman's vehicles was there.

When Mr. and Mrs. Morrish were still unable to get in the next day, they called the police and informed them that they were going to try and break in. With the police present, Mr. Morrish pushed the door down and officers then searched the house. Lindeman was not there, but all of his belongings seemed to be in order. However, there were no sheets or blankets on the bed.

R.379-82.

They closed the house back up and left a note asking Lindeman to contact them when he got home. Mr. and Mrs. Morrish were told by the police to "give it another week." The two left and went to Lindeman's other property located in Akron, New York, where there was no sign of Lindeman. The Morrish's left another note for him and departed. R.383-86.

The next day, Mr. Morrish returned to the house on West Avenue and changed the lock. The premises were in the same condition as before. At the end of the week, however, when Mr. Morrish went back to his brother-in-law's house, it was obvious that someone else had been there: Lindeman's microwave was gone, along with a pewter cup, various pieces of silver, and a stereo. R.387-89.

Now the Morrishs were very worried. Mr. Morrish changed the locks at West Avenue again. The next day, he and Mrs. Morrish went to the police station to file a missing persons report. Mr. Morrish began to check Lindeman's mail frequently, and noticed that some checks had been cashed and money was being spent. Mr. Morrish attempted to figure out where the checks were being cashed, but was unsuccessful. R.390-93.

On January 5, 1997, Mr. Morrish was notified by the Orleans County Sheriff's Department that some of Lindeman's property had been found. About five days later, Mr. Morrish went to the sheriff's office where he was shown the items--handguns, rifles, bows and arrows, and some personal ...


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