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McKeehan v. Zon

October 20, 2009


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge



Petitioner Michael McKeehan ("McKeehan" or "Petitioner"), who is represented by counsel, filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody. Pursuant to a judgment after a jury trial, entered January 3, 2000 in Steuben County Court, Petitioner was convicted of Assault in the First Degree (N.Y. Penal Law § 120.10(3)) and Endangering the Welfare of a Child (N.Y. Penal Law § 260.10).

For the reasons set forth below, the petition is denied.


A. Factual Background

In late February 1999, Heather Kittl ("Kittl") left her home in Wisconsin with her 10-month old daughter and traveled to New York to meet Petitioner, with whom she interacted via computer and telephone since meeting him in an internet chat room the previous month. Trial Transcript ("T.") 208-210. During her first week in New York, Kittl and her daughter stayed with Petitioner. At the end of that week, Kittl noticed bumps and bruises on her daughter's head and face. After asking Petitioner if he knew anything about the injuries, he told her the child probably bumped herself in the night. T. 217, 218, 223.

During Kittl's stay, she and Petitioner slept upstairs at Petitioner's house and Kittl's daughter slept on a couch downstairs. T. 220-223. Kittl stayed with Petitioner for approximately four weeks total, during which Petitioner would often wake up early in the morning (between midnight and 1:00 a.m.) and leave the upstairs bedroom for four or five hours. T. 223, 225. During the second and third weeks of her stay with Petitioner, Kittl noticed swelling on her daughter's head and that the child's eyes started to swell shut. T. 224. Kittl denied hitting her daughter or that she caused the injuries, but testified that she observed Petitioner "cuff" her daughter "on the back of her head openhanded" a number of times. T. 254-255, 262. Kittl also said that Petitioner was physically abusive towards her [Kittl] on two occasions, and threatened to kill her and her daughter and bury them in the back yard. T. 226-29, 243-45.

On March 21, 1999, Petitioner awakened Kittl and told her that something was wrong with her daughter. When Kittl went downstairs to check on her, she noticed that her daughter was bruised, her head was swollen, her eyes were swollen shut and she was limp. T. 248-249. Kittl and Petitioner revived the girl with a cold bath.

T. 249-250. A few days later on March 23, Kittl slept downstairs on the couch with her daughter. Id. Petitioner came downstairs around 2:30 a.m. and told Kittl to leave her daughter on the couch and come upstairs to bed. T. 250-251. Petitioner woke up around 5:30 a.m., went downstairs, picked up Kittl's daughter and brought her to the upstairs bed. He then went back downstairs. T. 251. Kittl laid her daughter in the middle of the upstairs bed and went downstairs to prepare her a bottle and, at the same time, Petitioner proceeded back upstairs. Id. When Kittl approached the bottom of the stairs to give her daughter the bottle, she observed Petitioner grab her daughter by the arm, and throw her backwards onto her back saying, "she's doing it again," referring to the fact that the girl went limp. Id.

Petitioner said he did not know what happened to her, but finally agreed to call the paramedics after Kittl asked him to do so three times. Id. He insisted that Kittl tell the paramedics that her daughter fell off the couch and hit her head on the coffee table, and to be sure to stick to that story. T. 252-253. Upon arrival, the paramedics classified the situation as life threatening and transferred Kittl's daughter to Corning Hospital where a nurse noted that she suffered "massive trauma of her face and head" and was oxygen-deprived and hypothermic. T. 305-6, 321-322.

Her severe condition required her to be transported to Strong Memorial Hospital in Rochester, New York where she underwent emergency surgery to correct internal bleeding in her skull that caused swelling and pressure on her brain and impaired her ability to breath. T. 359-361. The treating doctor testified that, in his opinion, the child's injuries could not have been caused by a fall from the couch and bumping her head on the coffee table, but were more consistent with several beatings of considerable force. T. 363, 364. The doctor opined that her injuries were more consistent with injuries from a motor vehicle accident or a fall from a third or fourth story building.*fn1 T. 363-364.

B. Petitioner's Arrest

On March 23, 1999, Steuben County Police Investigator, Mark Procopio, reported to the parking lot of a Wegman's supermarket in Painted Post, New York, in response to a call that a child was being transported by helicopter from the parking lot to Strong Memorial Hospital in Rochester, New York. Huntley Hearing ("H.H.__") 14-15.*fn2 Initially, Procopio interviewed Petitioner at the scene to determine what happened to the child, and asked Petitioner if he would return with him to the Painted Post Police Barracks. Petitioner was not under arrest. H.H. 15-17, 45. Given the option of riding with the officer or driving himself to the station, Petitioner chose to ride with Procopio. H.H. 17.

Procopio and Petitioner (who was unrestrained) went to an empty office at the station. H.H. 17-18. Procopio informed Petitioner that he wanted to interview him because the doctors said the child's injuries were inconsistent with the initial account of how she was injured. H.H. 19. Procopio started the interview at about 8:44 a.m. and continued until about 12:20 p.m., during which time he repeatedly asked Petitioner if he was hungry, thirsty, needed to use the bathroom, or wanted or needed to leave. H.H. 20-23, 30. Petitioner was given water and bathroom breaks but he never asked to leave or speak to an attorney. H.H. 20-23. Around 12:20 p.m. Investigator Alan Morse joined the interview, at which point Procopio told Petitioner he did not have to stay and asked him if he wanted an attorney or lunch, but Petitioner declined. H.H. 30.

Throughout the interview, Petitioner insisted that Kittl's daughter suffered her injuries by falling off the couch and hitting her head on the coffee table. H.H. 20; T. 333, 335. However, later that afternoon, he admitted to "tapping" the girl on her head. H.H. 26, 48. Both Petitioner (at Procopio's request) and Procopio tapped the table and the wall to determine how hard Petitioner had "tapped" the girl. H.H. 26, 35-36. Petitioner tapped the table lightly, but Investigator Procopio told Petitioner that such a contact would not leave a mark, and asked him if he ever hit her any harder. H.H. 28. Petitioner then hit the table a little harder. Id. Investigator Procopio hit the wall hard and asked Petitioner if he hit the girl in that way. Id. Petitioner acknowledged it was in between the intensity he tapped the table and the force used by Procopio to hit the wall. Id.

Immediately following this exchange, Investigator Morse gave Petitioner Miranda warnings, and Petitioner stated that he understood his rights. Id. During the next hour, Morse prepared a written statement, which Petitioner read and signed. H.H. 26, 28, 37, 48-54. Petitioner then commented to another officer who was sitting nearby, "what's the big deal, so I beat the baby." H.H. 9. Petitioner was later arrested at approximately 6:00 p.m.

C. Petitioner's Trial

On October 29, 1999, following a jury trial, Petitioner was convicted of Assault in the First Degree and Endangering the Welfare of a Child for the injuries he inflicted upon Kittl's daughter, and was sentenced to a determinate term of twenty years on January 3, 2000. Sentencing Tr. 15-16. He appealed his conviction to the Appellate division, Fourth Department, claiming that: (1) the trial court erred in allowing testimony of an uncharged prior bad act; (2) the evidence was insufficient as a matter of law and the verdict was against the weight of the evidence with respect to the assault charge; (3) the depraved indifference section of the assault statute under which he was charged was unconstitutionally vague; (4) the court erred in not instructing the jury regarding the voluntariness of statements petitioner made to the police; (5) the oral and written statements made by Petitioner to the police should have been suppressed; and (6) the sentence was unduly harsh and excessive. Resp't Ex. A.*fn3 The conviction was unanimously affirmed, People v. McKeehan, 2 A.D.3d 1421 (4th Dept. 2003), lv. denied, 3 N.Y.3d 644 (2004).

McKeehan then filed the instant petition for habeas relief ("Pet.") in which he made the following claims: (1) that his conviction resulted from a statement taken from him in violation of his constitutional protection against self-incrimination; (2) ineffective assistance of trial and appellate counsel; (3) the trial court erred in admitting testimony from the victim's mother concerning alleged incidences of violence and threatened violence against the mother; (4) the verdict was against the weight of the evidence; (5) the statutory provision upon which the conviction rests is unconstitutionally vague; (6) the trial court's sentence violated petitioner's right to demand a jury trial and (7) the trial court's failure to memorialize pre-trial plea negotiations violated Petitioner's constitutional rights. Pet. ¶22(a-f)(Docket No. 1). Petitioner's claims that he received ineffective assistance of trial and appellate counsel were not exhausted at the state level at the time he filed his habeas petition. This Court dismissed Petitioner's unexhausted claims without prejudice and granted a stay for the exhausted claims so the state court could hear and decide the unexhausted issues. (Docket No. 11).

Subsequently, Petitioner filed a Criminal Procedure Law ("CPL") § 440.10 motion to vacate the judgment in Steuben County Court, arguing ineffective assistance of trial counsel. Resp't Ex. I. The county court denied the motion on the merits, and the Appellate Division denied leave to appeal. Resp't Ex. K, P. Petitioner also filed a writ of error coram nobis in the Appellate Division claiming ineffective assistance of appellate counsel. Resp't Ex. Q. On September 30, 2005, the Appellate Division denied the motion on the merits and permission to appeal to the New York State Court of Appeals was denied. Resp't Ex. R, T.

Since Petitioner exhausted his claims of ineffective assistance of trial and appellate counsel in state court, this Court lifted the previously ordered stay, reinstated the dismissed claims, and ordered respondent to serve an answer and memorandum of law addressing the issues raised by Petitioner. (Docket No. 14).


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