The opinion of the court was delivered by: Seybert, District Judge
Petitioner, Theodore Brown ("Brown" or "Petitioner"), petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons below, the Petition is DENIED.
Commission of the Crime and Investigation This case involved Petitioner and Anthony McGhee, his co-defendant, committing several armed robberies in Wyandanch. On May 28, 1998, during one attempted robbery on a public street in Wyandanch, Petitioner fired a shotgun into a woman's head. A few days later, on June 3, 1998, Police arrested McGhee. Petitioner was arrested on June 4, 1998. Detectives testified that Petitioner did not speak on the way to the precinct and never asked for a lawyer. (H1. 21-26.)
Petitioner was taken into custody at about 7:45 p.m. They drove to Yaphank in about twenty minutes. Petitioner was placed in the interview room and handcuffed to the desk. He was told that his custody related to a homicide investigation and advised of his constitutional rights. Petitioner initialed next to the waiver questions on the Miranda card. He said no to the question about contacting a lawyer and was willing to speak to the police. Detectives completed the advice of rights at about 8:20 p.m., and testified that they made no threats or promises. (H1. 43-52).
Detectives asked Petitioner about the death of a woman, Keisha Greenridge ("Victim"), in Wyandanch in May 1998. He denied any involvement, admitted having been to Harrison Avenue in Amityville, New York, but denied spending time in Wyandanch. In response, the detectives told him that he had been seen in Wyandanch in May, and that they had information that Petitioner was involved in the shooting of Keisha Greenridge. Brown said he did not shoot anyone. After additional questioning, Petitioner admitted knowing "Shanky"--Anthony McGhee--for about eight months. When confronted, Brown said he could not explain why McGhee said they knew each other for two years while he had thought it was only eight months. Then Petitioner asked for time to pray (H1. 63-65).
When questioning resumed, Petitioner was asked if he owned a shotgun. He said no. He admitted, however, to seeing a shotgun, but he would not say to whom it belonged. Detectives next told Petitioner that his garage would be searched, and he still denied owning a shotgun. In fact, Petitioner insisted if the police found a shotgun in his garage, it would not belong to him.
At about 1:30 a.m., Petitioner was brought to the First Precinct. Four people were ready to view the lineups in the basement. Lawrence Johnson ("Johnson") and Dillon John ("John") had been robbed shortly before and not very far away from where the Victim was killed. Arthur Greenridge ("Greenridge") and Cedric Hardeman ("Hardeman") were with the victim when she was shot. Everyone in the lineup was African-American, about the same age, and wore jumpsuits. Each lineup was photographed twice, so there were four photographs. Hardeman viewed first. He picked someone other than Petitioner. Petitioner held placard number five, but Hardeman picked the man holding placard number two. Johnson selected Petitioner. At 2:45 a.m., Greenridge also selected Petitioner. Last to view, John also selected Petitioner. The lineup participants were then shuffled and each witness took a second look. Now Petitioner chose to hold placard number six. Johnson looked first and again picked Petitioner. Greenridge went next and also picked Petitioner. Hardeman selected the man holding placard number four, who was not Petitioner. John picked Petitioner again. All of the witnesses were kept separated throughout this process. Three written statements were taken from the witnesses who selected Petitioner. After the lineup, when Petitioner again rejoined the Detectives, he asked if they had picked him out and he was told they had. Petitioner said, "I figured that." (H1. 68-86.)
On the ride back to Yaphank, Petitioner told the detectives they were good and asked how they figured it all out. The detectives explained they had talked to many people, but they still wanted to hear his side of the story. Petitioner said he felt bad for three days. When asked, "What happened?" Petitioner said it was an accident. He was with "Shanky" when they stole the car from apartments on Harrison Avenue in Amityville. Then they both went to Wyandanch to rob some drug dealers and get some crack. He said they robbed two men up the street from the shooting, but did not get any drugs. When he and Shanky saw the Victim, they decided to attempt another robbery. Petitioner admitted he was the driver. When he went to get out of the car--it was still moving at the time--the shotgun got caught on the seatbelt and just went off. He agreed to give a written statement when they got back to Yaphank. Thirty seconds later, Petitioner said, "I never thought I would feel good about telling on myself." They got back to Yaphank around 3:45 a.m. (H1. 87-90.)
While Petitioner was in custody, he used the bathroom several times and was given water, coffee, and cigarettes. After detectives re-advised Petitioner of his rights, and he waived them, Petitioner began the written confession, at approximately 4:00 a.m. Petitioner initialed corrected errors twice on the second page and once on the third page. He also identified a photograph of Anthony McGhee as "Shanky." (H1. 91-104, H2. 2-24.) At 5:20 a.m., the confession was completed, and Petitioner swore to the truth of its contents. The detectives next wanted Petitioner to draw a sketch of the crime scene and look at photographs, but they were informed by Sergeant Fandrey that Phil Murphy had called to stop the interrogation. At 5:45 a.m., Petitioner then signed a video refusal form (H2. 5-12). Based on the evidence, including Petitioner's confession, McGhee eventually chose to plead guilty. Petitioner went to trial.
Petitioner's trial took place in January and February 2001. During the trial in the County Court of Suffolk County, New York, Petitioner raised two arguments that are relevant for purposes of his current Petition: (1) he disputed the voluntariness of his confession; and (2) he opposed the court's modification of its prior Sandoval ruling.
At a hearing held on July 31, August 3, and September 11, 2000, defense counsel claimed Petitioner was not advised of his constitutional rights and was coerced to sign a written statement he did not read or understand. He also argued that the lineup was too suggestive. (H1. 2-10.)*fn1 After hearing testimony by multiple witnesses that Petitioner was advised of his rights on several occasions, on October 5, 2000, Judge Mullin issued a decision holding (1) that Petitioner's oral and written statements were voluntary beyond a reasonable doubt; (2) that ...