United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. Cogan, U.S.D.J.
seeks federal habeas corpus relief under 28 U.S.C. §
2254 from his conviction for first degree murder, first
degree attempted robbery, and second degree weapons
possession. The facts will be set forth below as necessary to
address each of petitioner's points of error, but to
summarize, as one member of a group of men who determined to
randomly rob someone on the street, petitioner fired five
shots at the victim as the victim fled, killing him. Two
police officers, having been alerted to the attack, saw
petitioner near the scene throw a gun under a parked car,
which they retrieved, still warm, at the time they arrested
him, and which tested positive as the murder weapon with
petitioner's DNA on it. In addition, petitioner confessed
twice to the police after he was arrested (although he
challenges the admissibility of these confessions), and once
to his grandmother on a recorded call from jail.
raises three points of error: (1) the suppression court erred
in crediting the testimony of the detective who took his
confession, and without that error, his confession should
have been suppressed; (2) the trial court erred in
restricting cross-examination of the detective about another
case in which he had been involved where he testified to
similar, incredible circumstances in obtaining a confession;
and (3) petitioner's appellate counsel was
constitutionally ineffective for failing to (a) argue
insufficiency of the evidence of intent to kill as to the
first degree murder count, and (b) object to the jury
instructions because the jury instructions did not adequately
distinguish between first and second degree murder.
Crediting the Detective's Testimony
detective who obtained petitioner's confessions knew
petitioner as the victim from a prior shooting. According to
that detective, after his arrest in the instant case, he read
petitioner his Miranda rights, and petitioner gave
an exculpatory statement, acknowledging the attack by his
friends but stating that he had removed himself from it. He
then said he did not want to talk about it any further, and
the detective left the room to interview other witnesses and
conduct lineups involving petitioner's accomplices.
hours later, the detective testified, petitioner knocked on
the door of the interview room. The detective, who was in the
next room obtaining a statement from another witness, went to
petitioner, and petitioner told him that he wanted to tell
the detective what really happened. He then gave a full
confession orally, after which he wrote out his confession
and signed it. The next morning, after additional
Miranda warnings, he gave the same video confession
to an Assistant District Attorney (“ADA”).
argued that it was simply not credible that he would have
changed his mind over the nine-hour period, and that the
suppression court erred in crediting the detective's
testimony. The Appellate Division rejected his argument,
the testimony given by a detective at the suppression hearing
was not manifestly untrue or contrary to experience, and the
testimony did not appear to have been patently tailored to
nullify constitutional objections. Although, upon the
exercise of our factual review power, this Court may make its
own findings of fact if it determines that the hearing court
incorrectly assessed the evidence, we cannot say that the
hearing court was incorrect in crediting the detective's
People v. Cruz, 131 A.D.3d 706, 706-07, 15 N.Y.S.3d
692 (2d Dep't) (citations omitted), leave to app.
denied, 26 N.Y.3d 103, 22 N.Y.S.3d 168 (2015) (table).
state court's decision to credit the detective's
testimony resolves a factual dispute, and therefore attracts
the restricted review standard of 28 U.S.C. §
2254(d)(2). The statute provides that in reviewing a state
court conviction, the federal habeas corpus court can only
grant relief from a factual determination if it 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)(2). Moreover,
“a determination of a factual issue made by a State
court shall be presumed to be correct. The applicant shall
have the burden of rebutting the presumption of correctness
by clear and convincing evidence.” 28 U.S.C. §
2254(e)(1); see also Burt v. Titlow, 134 S.Ct. 10,
15 (2013). The review standard is “substantially
higher, ” and even if a determination of fact turns out
be incorrect, it can still be reasonable. Schriro v.
Landrigan, 550 U.S. 465, 473 (2007). “[E]ven if
‘[r]easonable minds reviewing the record might
disagree' about the finding in question, ‘on habeas
review that does not suffice to supersede the trial
court's . . . determination.'” Wood v.
Allen, 558 U.S. 290, 301 (2010) (quoting Rice v.
Collins, 546 U.S. 333, 341-42 (2006)). Rather, a
petitioner must prove that the state court's finding was
“objectively unreasonable.” Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003). Objective
unreasonableness means that the state court's factual
determination “cannot reasonably be reconciled”
with the record that was before the state court. Jones v.
Murphy, 694 F.3d 225, 235 (2d Cir. 2012).
does not come anywhere near meeting this standard. He simply
asserted that it was “patently incredible” that
he would have changed his mind between the time of that he
denied participation and his first inculpatory statement. But
such spontaneous changes of heart in the course of pre-trial
confinements are not at all uncommon. In this case, as the
ADA pointed out to the Appellate Division, petitioner knew
that the detective was conducting lineups. There was no
evidence that petitioner knew that the victim had died, which
would have made a confession seem less consequential than it
ultimately was. Petitioner also knew that the police had seen
him toss the gun. His reflection on these facts over the
course of his confinement could easily have made him realize
that the jig was up.
fact that a more-than-reasonable argument can be made for
crediting the detective's testimony removes this claim
from the scope of federal habeas corpus review. Thus,
petitioner's point of error is denied.
Restriction on Cross-Examination
second argument on direct appeal is effectively built on his
first. By serendipity, his trial counsel, in another,
unrelated case (referred to as the “Willie
Mays” case), had cross-examined the same detective
who had obtained petitioner's confession. In the
Willie Mays case, according to trial counsel, the
detective had testified that, after first denying
involvement, Willie Mays had ...