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Cruz v. M. Kirkpatrick

United States District Court, E.D. New York

August 4, 2017

MICHAEL CRUZ, Petitioner,
v.
M. KIRKPATRICK, Respondent.

          MEMORANDUM DECISION AND ORDER

          Brian M. Cogan, U.S.D.J.

         Petitioner 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.

         He 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.

         I. Crediting the Detective's Testimony

         The 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.

         Nine 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”).

         Petitioner 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, holding that

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 testimony.

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).

         The 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).

         Petitioner 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.

         The 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.

         II. Restriction on Cross-Examination

         Petitioner's 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 ...


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