The opinion of the court was delivered by: John Gleeson, District Judge
Ivan Michael Suphal, currently incarcerated in Sing Sing Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his conviction in New York State Supreme Court of depraved indifference murder. Suphal alleges that the trial judge erred in his administration of a pre-trial suppression hearing and in denying Suphal's motion to dismiss the depraved indifference count, that the government submitted falsified evidence during the litigation of Suphal's motion to vacate his conviction, and that his trial counsel and appellate counsel were constitutionally ineffective for various reasons. For the reasons stated below, the petition is denied except to the extent it contends that trial and appellate counsel ineffectively addressed the use of an eavesdropping device to locate and apprehend Suphal. Thomas Nooter, Esq., is hereby appointed as counsel for Suphal to investigate that claim. A supplemental submission shall be served and filed by appointed counsel on or before May 29, 2009. Respondent shall respond to any such submission on or before June 19, 2009.
A. The Crimes and the Investigation
The government's evidence at trial established that on November 15, 1999, Suphal shot and killed Jubar "Snoop" Saunders in Brooklyn, New York. After the incident, witnesses interviewed by the police said Suphal was at the scene at the time of the shooting, and the police began to search for him.
After unsuccessful attempts to locate Suphal, the police visited an apartment shared by Melody Maria Borrero, the mother of Suphal's child, and Maria de Carmen Matos, Ms. Borrero's mother. Ms. Borrero was not present when the police arrived, but they spoke to Ms. Matos. As a result of that conversation, the police department's Technical Assistance Response Unit ("TARU") installed a device on the phone in the apartment that recorded incoming calls and identified their numbers of origin ("the listening device"). Using this device, the police intercepted an incoming call from Suphal. The call originated from a pay phone near the Belmont Motel in Queens.*fn1
At approximately 2:20 A.M. on November 18, 1999, apparently as a result of the intercepted call, the police arrived at the motel. They discovered that Suphal was registered under his own name in Room 103. Three officers proceeded to the area outside the closed window of the room while three others approached the door. The officers were in plain clothes and had their weapons drawn. As the officers approached the door, Suphal opened it, saw the officers, and slammed the door shut. He then jumped through the closed window and was restrained and handcuffed by the police. As he was being handcuffed, Suphal stated "I didn't kill anybody. I am no killer . . . You might as well kill me now. I didn't see any blood. He had on a blue jacket. I just kept shooting. I didn't see any blood." Trial Tr. 184.
At approximately 3:05 the same morning, Suphal was taken to the 60th Precinct. After Detective Robert Bush read Miranda warnings to him, Suphal stated that he understood his rights and signed a form to that effect. He then indicated that he was willing to speak without an attorney, and told the police he had shot Saunders.
Suphal also made a written statement. His statement indicated that he had driven to West 36th Street in Brooklyn to help his mother with a broken car. When he arrived, an individual he referred to as "Nonnie" (identified at trial as Antwon Flowers) came to his car. While Suphal and Flowers sat in the car, Saunders approached the car and began speaking to Flowers. When Suphal told Saunders that Suphal had to leave, they "got into words." Trial Tr. 222. Saunders said, "Shut the hell up," and stated "that he would be right back." Id. at 222. As Saunders walked away, Suphal and Flowers exited the car. At this point, Mark "Miz" Smith came up to Suphal and asked what was wrong with Saunders and Suphal. Id. Suphal continued to watch Saunders, and asked Smith whether Saunders had a gun. According to Suphal, "[Smith] said, no; but [Suphal] wasn't sure and neither was [Smith], the way that he answered back to [Suphal]." Id. When Saunders was "about five feet in front of" Suphal, Suphal stated that "[h]e starts back arguing about how [Suphal] think[s] he is a crab nigger for what happened about a month earlier." Id. at 223. Suphal then saw Saunders reaching for "a big, black gun," which Suphal wrested away from him and aimed "at his left shoulder and arm." Id. Suphal fired the gun several times, and, when he saw that Saunders had tripped, he turned and ran back to his car, dropping the gun along the way. Suphal was charged with both depraved indifference homicide and intentional homicide, as well as other crimes. At a pre-trial suppression hearing, the trial judge ruled that the statements Suphal made during and after his arrest would be admissible at trial.
At trial, the government submitted evidence from police investigators and the physician who performed the autopsy on Saunders. These witnesses testified that seventeen shell casings, all from the same gun, were recovered from the scene, and that Saunders had six bullet wounds. The government also called three witnesses who saw Saunders and Suphal together at or near the time of the shooting. Smith testified that he was Suphal's brother-in-law, and that the two were friends. He was also friends with Saunders, and they both sold drugs on West 36th Street. At the time of the shooting, Smith was walking up and down the block selling drugs, and he saw Suphal and Saunders arguing in the entrance of 2844 West 36th Street.*fn2 While Smith was in an alley off of West 36th Street making a sale, he heard shots and ran back into the street, where he saw Saunders running towards him and Suphal a few feet behind Saunders. Although he did not see a gun, he saw "something like sparks" flashing between Suphal and Saunders. Trial Tr. at 91. After the shots ceased, he returned to the entrance of 2844, where he saw Saunders on the ground coughing up blood. On cross-examination, Smith stated that he was about six feet away from the pair when he first saw them, and was "a couple of buildings" away when he heard gunshots. Id. at 106. He also stated that he and Saunders had once robbed Suphal. Id. at 114.
Patricia Duffy, who lived next door to 2844, testified that at the time of the shooting, she was taking her garbage out. She heard voices arguing. Returning to her building, she saw Suphal, Smith, and Saunders standing in the entrance of 2844 arguing about money. She also heard Suphal say something like "I should put a cap in your ass." Id. at 203. She stood in her doorway to eavesdrop on the conversation, and heard gunshots. She ran to her apartment, then returned to the street a "couple of minutes later" to see Saunders lying in the street. Id. at 207.
Mary Watkins testified that she was in her second-floor apartment in a nearby building on the evening in question. She went to the window to call down to her niece, and saw "Mike [Suphal], Miz [Smith], Snoop [Saunders], and Nonnie [Flowers]" standing in front of a nearby building. Id. at 240. She stated that they appeared to be in "a little slight argument." Id. at 241. She closed her window, and "[a] couple of seconds later," heard "10 to 15" gunshots from that direction. Id. at 243. Diving to the floor for cover, Watkins heard footsteps, a car door slam, and a car starting and driving away. She stated that "[i]t was the sound of [Suphal]'s car because he has a funny sound to his car." Id. at 244. Fearing that her niece had been shot, she ran downstairs, where she saw Smith, Nonnie, and a body on the ground. She also testified that she spoke to the police about the incident a half hour later.
Detective Bush testified to the circumstances surrounding Suphal's post-arrest confession and read Suphal's statement into the record. He also stated that the police were unable to locate or interview Flowers, although he believed that Flowers was on parole and required to report to a parole officer. Id. at 225.
At the close of the government's case, Suphal's attorney moved to dismiss the depraved indifference homicide count. The judge noted that it did not appear to be a traditional depraved indifference case, and expressed concern that the government had charged depraved indifference murder only because it was uncertain it could carry its burden of proving intentional murder. The government argued that, given Suphal's post-arrest statement, the jury could find that he "exhibited depraved indifference to human life by firing a gun 17 times at another human being, even if he did not intend to hit him." Id. at 264. The judge ultimately decided to reserve decision on the motion.
The defense case consisted of Suphal's testimony, which was largely consistent with his post-arrest statement. Revisiting the motion to dismiss the depraved indifference count, the court denied the motion, because "based on the testimony now on the record, . . .there is sufficient basis now to charge that." Trial Tr. 336-37. Suphal was found guilty of depraved indifference homicide, and sentenced to seventeen and one-half years' imprisonment.
B. Appeal and Collateral Proceedings
On appeal, Suphal filed a counseled brief arguing that the government failed to disprove the defense of justification beyond a reasonable doubt. He also filed a pro se brief arguing that the trial judge committed reversible error by reopening the pretrial hearing.
On May 3, 2004, the Appellate Division affirmed Suphal's conviction, finding that the trial court had not abused its discretion in reopening the suppression hearing, and that Suphal's justification argument was not preserved for appellate review. People v. Suphal, 776 N.Y.S.2d 101 (2d Dep't 2004). The Court of Appeals denied leave to appeal on August 16, 2004. People v. Suphal, 3 N.Y.3d 682 (2004).
On July 14, 2005, Suphal moved to vacate his conviction pursuant to N.Y. C.P.L. § 440.10. Suphal argued that his trial counsel was constitutionally ineffective, that his Sixth Amendment rights were violated by the introduction of hearsay at trial, and that the depraved indifference murder count should not have been submitted to the jury. Counsel was appointed to represent Suphal, and argued that Suphal's conviction should be vacated under People v. Payne, 3. N.Y.3d 266 (2004), and that appellate counsel was constitutionally ineffective for failing to argue the applicability of Payne.
In a December 8, 2006 Decision and Order, Justice Gustin L. Reichbach discussed at length the "sea change in the law of depraved indifference murder initiated by People v. Payne" and its potential effect on Suphal's conviction. Dec. 8 Order 3. He concluded that "the Court is faced with a procedural bar to considering defendant's motion regarding depraved indifference murder since the issue was not raised" on direct appeal. Id. at 5. He also noted that the proper vehicle for arguing Suphal's ineffective assistance of appellate counsel claim was a petition for a writ of error coram nobis. Id. Justice Reichbach then explained why, "even if the Court were to reach the merits of the issue," the evidence introduced at trial supported a depraved indifference conviction, even after Payne. Id. at 5-8. He concluded that "[t]herefore, the defendant's motion is denied in its entirety." Id. at 8.
Suphal then filed an error coram nobis petition and an application for leave to appeal Justice Reichbach's order. The Appellate Division summarily denied leave to appeal on August 22, 2007, and summarily denied the coram nobis application on October 2, 2007. The Court of Appeals denied leave to appeal the coram nobis denial on December 28, 2007. Suphal initiated a second coram nobis proceeding, alleging ineffective assistance of appellate counsel on other grounds, on January 25, 2008. The Appellate Division denied this petition on May 27, 2008, and leave to appeal was denied on October 3, 2008. Suphal placed the instant petition for a writ of habeas corpus in the prison mail system on October 16, 2008.
A. Review of State Court Adjudications under AEDPA
A federal habeas court may overturn a state court's ruling on the merits of a claim only if the state decision was "contrary to, or an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A decision is "contrary to" clearly established federal law if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A decision is "an unreasonable application" of clearly established federal law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. at 413. An unreasonable application is more incorrect than a merely erroneous one, Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams, 529 U.S. at ...