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Clark v. Cunningham

United States District Court, E.D. New York

April 10, 2014

ROBERT CLARK, Petitioner,

Petitioner is proceeding pro se.

Respondent is represented by Thomas J. Spota, District Attorney of Suffolk County, by Thomas C. Costello, Assistant District Attorney, District Attorney's Office, Riverhead, NY.


JOSEPH F. BIANCO, District Judge.

Robert Clark ("petitioner" or "Clark") petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254, challenging his conviction entered on August 20, 2002, in the Supreme Court of the State of New York, Suffolk County, for burglary in the second degree. Petitioner was sentenced to a term of imprisonment of twenty years to life. Petitioner challenges his conviction on seven grounds. Specifically, petitioner asserts that: (1) there was no probable cause for his arrest; (2) his written confession, which contained information obtained prior to the administration of Miranda warnings, should have been suppressed; (3) he was illegally searched and seized; (4) his Sixth Amendment right to counsel was violated; (5) he was denied the effective assistance of pre-trial and appellate counsel; (6) African Americans were systematically excluded from both the grand jury and petit juries; and (7) his sentence was illegal.

For the reasons set forth below, the Court denies the petition in its entirety. Specifically, the Court finds that petitioner's Batson claim is unexhausted and, therefore, procedurally barred from review. Moreover, the Court concludes that none of the claims are meritorious, and they provide no basis for habeas relief.


A. Factual Background

The Court has adduced the following facts from the instant petition and underlying record.

1. Pre-Trial Hearing

Petitioner appeared with pre-trial counsel, Robert Macedonia, for a combined Huntley and Mapp pre-trial hearing on June 14, 2002 before Judge Michael Mullen of the Supreme Court, Suffolk County, State of New York. (Hr'g 4.)[1] Suffolk County Police Department Detectives Nicholas Weisse and Jeffrey Mahon testified. (Hr'g 8-108.)

At approximately 4:00 p.m. on October 24, 2001, Detective Weisse reported to a Texaco gas station located about one-quarter mile from the scene of a burglary at 159 Harned Road in Commack, New York. (Hr'g 9-10.) Two uniformed police officers and petitioner, who was not handcuffed. were present when Detective Weisse arrived. (Hr'g 11-12.) Upon his arrival. Detective Weisse observed petitioner's ID card and seven or eight pawn tickets from pawn shops in both Suffolk County and the Bronx displayed on the hood of the police vehicle. (Hr'g 12.)

Officer William Popielaski told Detective Weisse "that he had been traveling southbound on Harned Road, and that he had observed a black male standing by the LILCO right-of-way where it meets Harned Road." (Hr'g 13.) Officer Popielaski then heard the report of the burglary at 159 Harned Road. (Hr'g 13.) As he continued driving back towards the man he observed. he realized that the man had been standing directly in front of the scene of the burglary when Officer Popielaski first saw him. (Hr'g 13-14.) While waiting for a marked sector car to arrive at the scene, Officer Popielaski saw the same male now running northbound on Harned Road. (Hr'g 14.) Officer Popielaski also told Officer Weisse that petitioner was on parole for burglary, and that a blue 1995 Ford Taurus may have been a part of the crime. (Hr'g 14.)

Detective Weisse remained at the Texaco with petitioner for twenty to thirty minutes, and then drove petitioner to a Shell gas station at the corner of Jericho Turnpike and Harned Road, where the Ford Taurus and a female were located. (Hr'g 15.) Petitioner went voluntarily. (Hr'g 15.) Detective Weisse testified that petitioner was not handcuffed, but was also not free to leave. (Hr'g 15.) Based on the information Detective Weisse received from Officer Popielaski, along with his own observations of the pawn tickets and his knowledge of Clark's parole status, Detective Weisse now considered petitioner a suspect in the burglary. (Hr'g 16.) Petitioner was not questioned during the drive. (Hr'g 18.)

When they arrived at the Shell, about one-half mile from the scene of the burglary, Danielle Alvarado was in the back seat of a police vehicle. (Hr'g 18.) The Ford Taurus was in the garage bay of the gas station. (Hr'g 19.) Five or six other police officers were at the Shell station as well. (Hr'g 19.) Initially, Alvarado was not handcuffed, but after she spoke with Detective Weisse, she and the petitioner were both handcuffed and arrested for burglary in the second degree (Hr'g 20-22). Petitioner became extremely agitated, screaming, "[W]hy are you arresting her?", and threatening to bite Detective Weisse. (Hr'g 22.) Petitioner was not read his Miranda rights at this point. (Hr'g 23-24.)

After the arrests, Detective Weisse drove back to the scene of the burglary, along with petitioner, to do a walk-through of the scene. (Hr'g 24.) Petitioner was not questioned during the drive, but when they arrived, he said, "[T]hat's the house." (Hr'g 25.)

According to Detective Weisse, upon returning to the Fourth Precinct, petitioner was handcuffed to a desk inside an interview room. (Hr'g 26-27.) He was advised of his constitutional rights using a "rights statement." (Hr'g 28.) Petitioner was instructed to initial next to each right after Detective Weisse read it off the rights statement. (Hr'g 31-33.) Petitioner said he understood his rights. (Hr'g 33.) Detective Weisse then took a written statement from petitioner about the burglary. (Hr'g 29.) Additionally, Detective Weisse ascertained that petitioner could read and understand English, by having him read the first line of his written statement out loud. (Hr'g 35.) Once the statement was completed, petitioner read and signed it. (Hr'g 39.) Petitioner also signed consent forms for searches of the Ford Taurus (Hr'g 41), and his motel room at the Townhouse Motor Inn in Smithtown (Hr'g 44). Petitioner never requested an attorney or expressed a desire to stop talking to Detective Weisse. (Hr'g 45.) Petitioner never indicated that he did not understand what was happening, nor was he threatened or coerced. (Hr'g 45.)

The Ford Taurus was brought back to the Fourth Precinct and searched by Detective Weisse, who found three cameras inside. (Hr'g 47-48.)

Detective Jeffrey Mahon testified that, on October 12, 2001, he investigated a burglary at 16 Ledgewood Avenue in Smithtown, New York. (Hr'g 86.) Three cameras, assorted jewelry, and some cash were stolen. (Hr'g 86.) On October 24, 2001, Detective Mahon learned that three cameras were recovered from the vehicle involved in the Harned Road burglary. (Hr'g 87.) Upon investigation, Detective Mahon discovered that the serial numbers on the recovered cameras matched the serial numbers of the cameras stolen in the October 2001 burglary. (Hr'g 87-88.) Additionally, the homeowner from the Smithtown burglary, Mr. Hillebrand, physically identified the cameras and made an identification statement to the police. (Hr'g 88.)

After Mr. Hillebrand identified the cameras, Detective Mahon proceeded to read petitioner his Miranda rights, prepare a rights statement, and interview him. (Hr'g 88-89.) Petitioner initialed and dated the rights statement, indicating that he was waiving his rights. (Hr'g 91.) Detective Mahon then took a statement from petitioner, which the detective reduced to writing. (Hr'g 94.) Petitioner never asked for an attorney, never indicated that he had changed his mind about cooperating, and was never threatened or made any promises regarding Alvarado. (Hr'g 98.)

2. Trial

At trial, Detectives Weisse and Mahon provided the testimony already described from the pre-trial hearing. Additionally, they testified to the following.

When Detective Weisse responded to the Texaco gas station on October 24, 2001, Police Officers Popielaski and Massaro were there. (Tr. 569.)[2] Petitioner was in the back of Officer Popielaski's car. (Tr. 572.) Officer Popielaski showed Detective Weisse property he had taken from petitioner, including petitioner's New York ID card and pawn tickets. (Tr. 573.) Sometime between 3:30 p.m. and 4:30 p.m. ( see Tr. 652, 577), Detective Weisse spoke with Clark about the Ford Taurus and his girlfriend, who had argued with Clark and driven off without him (Tr. 664). When Detective Weisse learned that the Taurus had been discovered at a Shell station, he informed petitioner that they had located "his girlfriend and his vehicle, " and he drove with a Detective Stewart and petitioner to the Shell station. (Tr. 574-75). Detective Weisse testified that when he and Detective Stewart arrived with the petitioner at the Shell station, Alvarado was not handcuffed, but she was also not free to leave. (Tr. 685.)

Once Detective Weisse had returned to the scene of the burglary at 159 Harned Road, he learned that a microwave oven and a pillowcase filled with other personal items that had been stolen were found in some bushes near the residence. (Tr. 579-80.) No additional property was found in petitioner's motel room. (Tr. 625.) In addition to the three cameras found in the Ford Taurus (Tr. 617-18), a black plastic case and a watch were also found (Tr. 620). After returning to the Fourth Precinct, Detective Weiss removed the remaining items from petitioner's wallet and discovered ten pawn slips and three pawn identification cards. (Tr. 626.) Detective Gottlieb recovered jewelry from one of the pawn shops using these pawn slips (Tr. 636), and Detective Weisse showed the jewelry to the Hillebrands (Tr. 640). The jewelry was pawned on October 22, 2001 and included one eighteen carat chain, one bracelet, and three pairs of earrings. (Tr. 635.) Mrs. Hillebrand identified the jewelry as the jewelry that was stolen from her residence in Smithtown on October 12. (Tr. 641).

At the Fourth Precinct, at approximately 7:45 p.m., petitioner was informed of his Miranda rights and was interviewed. (Tr. 584, 599-600.) At about 8:30 p.m. (Tr. 611), Detective Weisse produced a written statement (Tr. 600):

I, Robert Clark, being duly sworn, deposes and says: I am thirty two years of age, having been born on May 25th, 1969 at Amityville, New York. I have been staying at the Town House Motor Inn, Jericho Turnpike, Smithtown, with my girlfriend, Crystal Behling. I also sometimes stay with another friend, Danielle Alvarado, who lives in Wyandanch.
Today, October 24th, 2001, at about 9:30 a.m., I was driving my girlfriend, Crystal's 1995 coupe Ford Taurus, New York Reg AEX-4715, and I went and picked up Danielle at her house. We both went to the Bronx.
At about 1:30 p.m., we left the Bronx and we were coming back to Long Island. I got off the Sagtikos Parkway at the Harned Road Exit. Me and Danielle were fighting about money because she needed money for our baby and I didn't have any to give her. I got out of the car that was stopped at a traffic light and Danielle drove away. I was walking around, and a little while later, Danielle came back in a different car with a stranger.
Danielle got out of the car. She told me that my car broke down and it was at the gas station and that she left the keys with the attendant. So we started arguing again because she left the keys with the guy at the gas station. Danielle tells me she's going to tell Crystal about our baby. I am mad that my car is broken down. Danielle tells me that my baby is more important than that f****ng car. I'm trying to calm her down, telling her, I don't got no money. What do you want me to do?' Danielle tells me that I got to do something. I say to Danielle, There's nobody in this house here, ' which was on Harned Road.
We both go to a basement window on the right side of the house. I kicked out the window and Danielle went in. After a couple of minutes, she tripped the alarm in the house. I was standing in the back of the house, waiting for her. After the alarm tripped, Danielle came to the back door and asked me what I wanted her to do. I told her to hurry up. She went upstairs and came down with a pillowcase filled with stuff she had stolen and she, then, handed it to me.
I took the pillowcase with the stolen stuff and stashed it in the bushes. I went back to the rear door and Danielle had a microwave. I took that from her and I put it next to the pillowcase in the bush.
We were walking to see about my car. I then, saw a squad car pull up to the house we had just broken into. I then jogged to the Getty gas station on Vets Highway, but it was the wrong one. I then went to a Texaco gas station. On the way to the gas station, I talked to a police officer in an unmarked car. I asked him if he could take me to a Getty gas station. I told him I had an argument with my girlfriend and my car broke down. He asked me why I was breathing so hard, and I told him it was because I had just run from the Getty Gas Station, but I really had been running from the first time I saw the police car.
I have read the above three-page statement that Detective Weisse has written for me and I swear it is all true.

(Tr. 601-606.)

Petitioner's written statement included information that he had told the detective at the Texaco station, before he had been read his rights. (Tr. 666.) Detective Weisse testified that petitioner never asked for the consent forms for the Ford Taurus and motel room to be explained further, and that there was no indication that he did not understand them. (Tr. 616, 625.) While in the interview room, petitioner was given a cigarette that was later collected by a police officer and sent to a crime lab. (Tr. 699-700.)

Detective Mahon testified that he investigated the October 12, 2001 burglary at 16 Ledgewood Drive (Tr. 709), and that he came to learn about the three cameras discovered on October 24, 2001 (Tr. 734). One of the cameras was a digital and had a picture of a young Black male standing in front of an older Black male who was lying on a couch. (Tr. 747.) A photo developed from another camera revealed a TV set and was likely taken in a motel room. (Tr. 750, 752.) The film from the third camera had been removed. (Tr. 750.)

Detective Mahon read petitioner his Miranda rights and interviewed him. (Hr'g 88-89.) Detective Mahon then took a written statement from petitioner:

I, Robert Clark, being duly sworn, deposes and says: I am thirty two years old, born on 5-25-69 and I am living at the Town House Motel in Smithtown. I'm at the Fourth Precinct talking to and giving this statement to Detectives Mahon, Cicci and Weisse.
About two weeks ago I was with Danielle Alvarado who met me at the Town House Motor Inn. We walked up to the pizza place. I had no money. I got high with a couple of white kids in a car. Danielle was watching my stuff at the bus stop. I went over to her. I was coming down and wanted to get high again. I called Crystal but she wasn't coming until 12:30. I knew I could rob a house and get back before then.
I told Danielle I was going to take a walk. She said she'd go with me. I walked up a hill. She asked where I was going. I said to find some money or something.' I was craving for more drugs by now feelings for crack.
We came to a house up on a hill, rang the doorbell, banged on the door, no cars were there and no one was home. We went around the back. There was a shovel on the ground. The pool up on the hill. Tried to pry open the sliding door. It didn't go. I kicked in a basement window, it went in, the screen, no glass broke. Danielle went in the window. I couldn't because I'm too big. She went up and opened the side door next to the garage for me. I went in.
We were in the house maybe fifteen, twenty minutes, got some jewelry, nothing good, cash, a lot of change in jars, and a fifty-dollar bill. Costume jewelry, three cameras. (I took pictures with the camera with the T.V. on the back later, Danielle in the hotel, my niece and nephew, Crystal my girlfriend.)
We put all the stuff in a backpack from the house. We had checked all the rooms, then left out the side door. We went back to the bus stop. This was between 10:00 and 12:30 in the morning. We threw out the jewelry, spent the cash and kept the cameras.
Danielle told me the basement window went into an old bathroom. There was a big chain saw in the kitchen, too big to carry. It was a bad decision for both of us to do this. We realized it later.
I've read this three-page statement and it is all true.

(Tr. 768-771.)

Detective Theodore Cicci testified that on October 24, 2001, he assisted Detective Mahon with Clark and Alvarado. (Tr. 789.) Detective Cicci photographed Clark's and Alvarado's shoes to compare them with footwear impressions found at the scene of the burglary at 159 Harned Road in Commack. (Tr. 789.)

Police Officer Christopher McDonald was assigned to the Suffolk County Crime Scene Section on October 24, 2001, and investigated the burglary at Harned Road. (Tr. 805-06). He testified that the point of entry was a basement window and the point of exit was a sliding glass door on the east side of the house. (Tr. 809.) However, he was only able to theorize about how an individual would have gotten themselves through that window. (Tr. 857-859.) Officer McDonald photographed the crime scene. (Tr. 810.) He also dusted the items found outside by the street (Tr. 819), and found latent fingerprints on a Stern's paper box top. (Tr. 820-22.) A magnifying glass found inside the home also revealed a latent fingerprint. (Tr. 824). He also discovered a fingerprint on the banister in the basement (Tr. 827), and a footwear impression on a glass table (Tr. 832). He had not been told that petitioner had been brought to the crime scene that day. (Tr. 863.) Officer McDonald testified that fingerprints are very fragile evidence and easily damaged, which affects their reliability. (Tr. 871.)

Officer Popielaski testified that, on October 24, 2001, he was driving an unmarked Chevrolet Camaro (Tr. 879), and wearing a windbreaker to disguise his uniform (Tr. 911-912). At about 3:00 p.m., he drove past a right-of-way on Harned Road, and saw a Black male standing on the curb between a residence and the right-of-way. (Tr. 883.) Officer Popielaski continued driving to a firehouse substation, where he encountered Officer Kramer. (Tr. 884-85.) He then heard a radio call dispatched for a house alarm at 159 Harned Road (Tr. 885), and both officers responded to the residence (Tr. 886). Officer Popielaski testified that he knew this address was "right around" where the right-of-way was. (Tr. 886). En route to the residence, he saw the same individual from earlier, now about 300 feet from where he had originally been, running northbound. (Tr. 887.) Officer Popielaski continued toward the residence to confirm that there had been a burglary. (Tr. 888.) He stayed inside the residence for thirty seconds, and then immediately traveled northbound in his vehicle to look for the running individual. (Tr. 888.) Officer Popielaski eventually found the individual, still running, and pulled his vehicle over about fifty feet in front of the individual. (Tr. 892.) The individual he encountered was petitioner. (Tr. 893.)

Petitioner approached Officer Popielaski's car, and they had a short conversation. (Tr. 894.) Officer Popielaski then followed petitioner, who was on foot, to a Texaco gas station at the corner of Veterans Highway and Harned Road. (Tr. 894.) No words were exchanged between Officer Popielaski and petitioner en route to the Texaco station. (Tr. 922.) Petitioner never attempted to run. (Tr. 923.)

Once at the Texaco, Officer Popielaski used a pay phone to request for additional police units to respond to the gas station. (Tr. 896.) While waiting for assistance, Officer Popielaski asked petitioner for identification. (Tr. 897.) While petitioner was taking identification out of his wallet, Officer Popielaski noticed pieces of paper appearing to be pawn receipts, sticking out of the wallet. (Tr. 897-898.) Officer Popielaski asked him what these items were, and petitioner responded "receipts." (Tr. 930.) Petitioner took them out of his wallet, and Officer Popielaski took them from petitioner to observe them. (Tr. 930.) Officer Popielaski testified that petitioner was not free to leave at this point. (Tr. 931.) When petitioner became "fidgety, " Officer Popielaski handcuffed him so petitioner would not try to run. (Tr. 899.) Officer Popielaski testified that, although petitioner was under suspicion for the burglary, there was not yet probable cause to make an arrest. (Tr. 933-34.) While petitioner was handcuffed, Officer Popielaski had a conversation with him about what he had been doing prior to seeing Officer Popielaski. (Tr. 935.) Petitioner was never read his Miranda rights while at the Texaco station. (Tr. 958-59.)

After being at the Texaco for about ten to fifteen minutes, Sergeant Massaro arrived (Tr. 899), and instructed Officer Popielaski to remove the handcuffs from petitioner (Tr. 900). Petitioner had been handcuffed for approximately five minutes. (Tr. 965.) Officer Popielaski informed Sergeant Massaro about the situation, and Sergeant Massaro left the Texaco to look for petitioner's girlfriend and vehicle at other gas stations. (Tr. 902.) Detectives Weisse and Stewart arrived at the Texaco (Tr. 902), and conversed with petitioner for five to ten minutes (Tr. 959). Weisse and Stewart then left the Texaco station with petitioner. (Tr. 902.) Officer Popielaski returned to the scene of the burglary at 159 Harned Road to assist with paperwork. (Tr. 903.)

Michael Hillebrand testified that he lives at 16 Ledgewood Drive in Smithtown. (Tr. 972.) When he returned home on October 12, 2001, he found his side door to the garage open, everything in his home thrown around, and items missing from inside his home. (Tr. 973.) The missing items included constitutional issue to a claim against a term rm of a sentencr. Hillebrand filled out an inventory of missing items. (Tr. 974-75.) On October 24, 2001, Detective Mahon called Mr. Hillebrand down to the Fourth Precinct to identify cameras that had been discovered. (Tr. 975-76.) Mr. Hillebrand compared the serial numbers of the cameras stolen from him to the cameras in the precinct, and made a positive identification. (Tr. 976.) Mr. Hillebrand testified that one of the pictures on the digital camera and one of the pictures developed off the film camera had not been taken by him. (Tr. 985-86.) He did not know the people or the locations depicted in the pictures. (Tr. 986.) Mr. Hillebrand and his wife also positively identified the jewelry in the precinct as the jewelry that had been taken from their home. (Tr. 987.) Mr. Hillebrand testified that he never gave petitioner or Alvarado permission to come into his home or to take his property. (Tr. 987.)

Detective Michael Mongan testified that he was working on October 24, 2001, and became involved in the burglary at Harned Road. (Tr. 991-92.) When Mongan arrived at the residence, the homeowner showed him inside and pointed out what had been disturbed. (Tr. 1012.) Detective Mongan testified that he believed someone slipped in through a forced-open window. (Tr. 1027.) After returning to the precinct, Detective Mongan took down petitioner's pedigree information, including his description, height, weight, etc. (Tr. 1010.)

Detective Ronald Gottlieb is part of the Property Recovery Unit. (Tr. 1040-41.) After speaking with Detective Weisse, Detective Gottlieb travelled to Good Fortune Pawn Brokers in the Bronx to recover proceeds. (Tr. 1041-42.) At the pawn shop, he examined the shop's records of transactions (Tr. 1042), searching for the names Robert Clark, Crystal Behling, and Danielle Alvarado (Tr. 1043). Detective Gottlieb discovered a sale made by Clark on October 22, 2001, and recovered the merchandise from that ...

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