The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Edward Brown ("Petitioner" or "Brown") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court. Petitioner cites twelve grounds for habeas relief, including claims that: (1) the trial court took insufficient action to remedy the admission of improper evidence; (2) the trial court improperly denied suppression of Petitioner's confession to police; (3) he was denied effective assistance of trial counsel; and (4) he was denied effective assistance of appellate counsel.
For the reasons set forth below, the Court finds that Petitioner's claims are not cognizable or without merit. Brown's § 2254 petition is therefore dismissed.
On June 29, 1995, Petitioner, who at the time was seventeen years old, was arrested in connection with the homicide of Tyshawn Flagler ("Flagler" or "the victim"). (Huntley Hearing, Dec. 19, 1995, ("H.H.1") at 3-5.) Petitioner's mother, Mahalia Cash ("Cash"), was present when her son was arrested, and, according to her testimony, told Petitioner in the presence of the arresting officers to get himself a lawyer. (Huntley Hearing, Jan. 2, 1996, ("H.H.2") at 40-41; Trial Transcript ("Tr.") at 765.)
The officers then transported Petitioner to the Public Safety Building in Rochester, where they led Petitioner to an interrogation room and informed him of his Miranda rights. (H.H.1 at 5, 10; H.H.2 at 67) Petitioner stated that he understood those rights. (H.H.2 at 67-68.) Petitioner then took part in an interview with Detective Vito D'Ambrosio and Sergeant Deral Givens of the Rochester, New York, police department. (H.H.2 at 14.) According to Det. D'Ambrosio, Petitioner confessed to chasing Flagler and firing at him with an AK-47 assault rifle. (H.H.2 at 19-20; Tr. at 657-58.)
At a pre-trial hearing pursuant to People v. Huntley, the trial court heard testimony from Cash that, at the time Petitioner was arrested, she informed one of the arresting officers, Off. Felix Montalvo, that her son needed a lawyer. (H.H.2 at 42.) Both of the other arresting officers testified that they did not overhear Cash tell Off. Montalvo that Petitioner needed a lawyer. (H.H.1 at 8; H.H.2 at 13.) Cash further testified that she visited the Public Safety Building that same day, while Petitioner was being interviewed. (H.H.2 at 44.) Cash asserted that she subsequently re-encountered Off. Montalvo shortly after 10:00am and inquired whether her son had requested an attorney. (Id.) According to Cash, Off. Montalvo replied that Petitioner had not asked for a lawyer and that Petitioner had confessed. (H.H.2 at 44-45.)
Off. Montalvo did not testify at the Huntley Hearing. However, Sgt. Givens testified that he saw Cash at the Public Safety Building at approximately 1:00pm the day Petitioner was arrested. (H.H.2 at 24-25.) Sgt. Givens further stated that he had a brief conversation with Cash, during which she inquired if he had been questioning Petitioner. (H.H.2 at 24.) When Sgt. Givens confirmed that he had been questioning her son, Cash reportedly asked, "Shouldn't he have an attorney?" (Id.) Sgt. Givens testified that he responded it was up to Petitioner to request an attorney. (Id.) According to Sgt. Givens, neither Det. D'Ambrosio nor Off. Montalvo was present during this conversation with Cash. (H.H.2 at 24-25.)
Petitioner's trial attorney argued at the Huntley Hearing that Petitioner's confession had not been obtained voluntarily. By the Rochester Police Department's own account, Petitioner did not actually confess until approximately 12:10pm on June 29. (Tr. 701.) When Off. Montalvo allegedly informed Cash that Petitioner had already confessed shortly after 10:00am, Petitioner's attorney argued that Montalvo disingenuously characterized Petitioner's situation as a fait accompli, calculating that this would discourage Cash from seeking legal assistance for her minor son with any urgency. Petitioner's counsel argued that Off. Montalvo employed deception and trickery to seal off the most likely avenue by which the seventeen-year-old Petitioner could gain the assistance of counsel.*fn1 (Court Appearance, Feb. 7, 1996, at 4-5.)
After evaluating all of the evidence presented at the Huntley Hearing, the trial judge determined as a matter of fact that the police did not isolate Petitioner from his mother in violation of Townsend. (Court Appearance, Jan. 31, 1996, at 2.) The court further found as a matter of law that Petitioner's confession was voluntary and admissible at trial. (Id.)
At trial, Petitioner testified that he was with his girlfriend, Loriette Henderson ("Henderson"), in a different area of Rochester when Flagler was killed on Jefferson Terrace. (Tr. at 824-26.) Henderson, however, testified that she was not in fact with Petitioner at that time. (Tr. at 886.) Additionally, three witnesses placed a blue four-door Honda with tinted windows at the scene of the crime. (Tr. at 541, 580, 632-33.) Two witnesses testified that Petitioner was driving that vehicle near the crime scene just prior to the shooting. (Tr. at 544-45, 632-33.) Two witnesses also testified that the shooter was standing next to that vehicle while he shot at the victim. (Tr. at 551, 583.) One witness positively identified Petitioner as the shooter. (Tr. at 553.)
Det. D'Ambrosio testified regarding the details of Petitioner's confession. (Tr. at 656-59.) According to Det. D'Ambrosio, Petitioner confessed that he was driving on Jefferson Avenue when he saw Tyshawn Flagler standing on the sidewalk. (Tr. at 657.) Brown allegedly told Det. D'Ambrosio that Flagler pulled out a handgun and pointed it at Petitioner, but then ran away without firing a shot. (Id.) Petitioner allegedly told Det. D'Ambrosio that he then chased Flagler to Jefferson Terrace, where he "jumped out" of his vehicle and "opened up" on Flagler with an AK-47 assault rifle. (Tr. at 657-58.)
Toward the end of his testimony on direct examination, Det. D'Ambrosio stated that Petitioner revealed how he disposed of the crime vehicle following the shooting. (Tr. at 659.) On cross examination, Det. D'Ambrosio repeated his testimony regarding Petitioner's admitted disposition of the crime vehicle. (Tr. at 676-77.) Sgt. Givens also testified on cross examination that Petitioner's confession included how he disposed of the crime vehicle. (Tr. at 716.)
At the conclusion of the prosecution's evidence, Petitioner's trial counsel moved to strike those portions of the testimony given by Det. D'Ambrosio and Sgt. Givens pertaining to Petitioner's alleged confession regarding the disposition of the crime vehicle. (Tr. at 739-744.) Trial counsel's stated grounds were that the information in question was not included in the prosecution's pre-trial notice to Petitioner regarding evidence of Petitioner's statements to police that the prosecution planned to use at trial. (Id.) Such disclosure is required by New York Criminal Procedure Law § 710.30. (Id.) The trial court initially reserved judgment, and the defense proceeded to call witnesses. (See Tr. at 744, 746.) Just before the jury heard closing arguments, the trial court granted Petitioner's motion, striking the testimony elicited during the direct and cross-examinations of Det. D'Ambrosio and Sgt. Givens regarding how Brown allegedly disposed of the vehicle observed at the crime scene. (Tr. at 892.) The trial court further gave a curative instruction to the jury to disregard that testimony. (Id.)
The jury found Petitioner guilty of intentional second degree murder. (Tr. at 964-65, 979.) After the jury returned its verdict, but prior to sentencing, Petitioner's trial attorney moved to set aside the verdict pursuant to C.P.L. § 330.30 on grounds that striking a portion of the police officers' testimony from the record followed by a curative instruction was insufficient to remedy the "severe damage" from Sgt. Givens's and Det. D'Ambrosio's testimony regarding Petitioner's alleged confession regarding the disposition of the crime vehicle. (State Court Records received in Docket Oct. 3, 2006, Appendix ("App.") C at 60-64.) Trial counsel argued that it was "impossible" for the jury to put this testimony out of their minds, and that it seriously undermined the defense's contention that there was no evidence linking Petitioner to the crime vehicle. (Id.) The trial judge denied Petitioner's motion to set aside the verdict. (Sentencing, May 3, 1996, ("Sentencing") at 9.) Petitioner was subsequently sentenced to an indeterminate period of incarceration with a maximum of life and a minimum of twenty-five years. (Sentencing at 16.)
On direct appeal, Petitioner's appellate counsel argued two points. First, he claimed that the trial court improperly denied Petitioner's motion to set aside the verdict pursuant to C.P.L § 330.30. (App. B at 19-23.) Specifically, appellate counsel echoed trial counsel by contending that striking the record and giving a curative instruction was insufficient to remedy Sgt. Givens's and Det. D'Ambrosio's testimony regarding Petitioner's alleged confession about the disposition of the crime vehicle. (Id.) Second, appellate counsel claimed that there was insufficient proof at Petitioner's Huntley Hearing to show that Petitioner's confession was voluntary. (App. B at 24-26.) In arguing this point, appellate counsel did not repeat trial counsel's argument that Petitioner had been improperly isolated from his mother, stating explicitly that "there is no contention in this case that the police engaged in the same kind of isolationist tactics as in [People v.] Bevilaqua and Townsend." (App. B at 25.) Instead, appellate counsel argued that Petitioner's mother, Mahalia Cash, invoked Petitioner's right to counsel prior to Petitioner's interrogation at the Public Safety Building. (See App. B at 24-26.)
Petitioner filed a pro se supplemental brief along with his appellate counsel's brief. While also arguing that the trial court improperly denied his motion to set aside the verdict pursuant to C.P.L. § 330.30 because the trial court's remedy was insufficient, Petitioner's focus was that the trial court authorized a read-back of Det. D'Ambrosio's testimony given on direct examination, allowing the jury to hear the same information that had been stricken from cross examination. (App. E at 25-26.)
The New York State Appellate Division, Fourth Department, upheld Petitioner's conviction. See People v. Brown, 309 A.D.2d 1258 (4th Dept. 2003). The court held that Petitioner had not properly preserved his § 330.30 argument because he "neither objected further nor requested a mistrial" when the trial court gave its curative instruction. See Id. at 1258. Since Petitioner first raised his insufficiency argument in his § 330.30 motion rather than when the trial court implemented its remedy, that argument was not preserved for appeal. See Id. (citing People v. Hines, 97 N.Y.2d 56 (2001), rearg. denied 97 N.Y.2d 678 (2001); People v. Laraby, 92 N.Y.2d 932 (1998)).
The Appellate Division found the particular argument presented in Petitioner's supplemental brief to be similarly unpreserved. See Id. at 1258-59. Because Petitioner did not register a protest when Det. D'Ambrosio's testimony from direct examination was read back to the jury, the Appellate Division declined to review Petitioner's argument "as a matter of discretion in the interest of justice." See Id. (citing C.P.L. § 470.15(6)(a)). "In any event," the Appellate Division further held, "the curative instructions must be deemed to have corrected the error to the defendant's satisfaction" under the circumstances. See Id. at 1258 (citing People v. Heide, 84 N.Y.2d 943 (1994)).
Second, the Appellate Division held that Petitioner's mother could not invoke his right to counsel on his behalf, based on the general rule that a third party cannot so invoke on behalf of an adult defendant. See Id. (citing People v. Grice, 100 N.Y.2d 318, 324 n.2 (2003)). Because of this, the Appellate Division upheld the trial court's denial of Petitioner's motion to suppress his confession. See Id. The New York Court of Appeals denied Petitioner's motion to appeal. See People v. Brown, 1 N.Y.3d 595 (2004).
Petitioner then moved pro se in Monroe County Court to vacate the trial court's judgment pursuant to C.P.L. § 440.10(1)(h). (See App. J at 1.) Petitioner again claimed that the trial court erred when it allowed portions of Det. D'Ambrosio's testimony from direct examination to be read back to the jury even though it struck from the record the same testimony given during cross examination. (See Id. at 5.) Petitioner also claimed that he was denied effective assistance of counsel because trial counsel neglected to object (1) when the improper testimony was first brought in during Det. D'Ambrosio's direct examination, and (2) when the trial court limited its remedy to striking the testimony given during cross examination and giving a curative instruction to the jury. (See Id. at 8, 10.)
The county court denied Petitioner's motion to vacate. (See App. M.) The court held that, because the record "clearly demonstrates the absence of an objection by defense counsel" to the instances complained of by Petitioner cited, the matter was not preserved for review in a § 440 motion. (See Id. at 4-5.) The court also dismissed Petitioner's first claim as having been decided by the Appellate Division. (See Id. at 5-7.) The Appellate Division, ...