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GHEE v. ARTUZ

United States District Court, E.D. New York
Sep 22, 2004
Case No. 97-CV-2191 (FB) (E.D.N.Y. Sep. 22, 2004)

Opinion

Case No. 97-CV-2191 (FB).

September 22, 2004

HELENE LANDAU, ESQ., Heller, Ehrman White McAuliffe LLP, New York, NY, for the Petitioner:

CHARLES J. HYNES, ESQ., District Attorney for Kings County, ANN BORDLEY, ESQ., Assistant District Attorney, Brooklyn, New York, for the Respondent:


MEMORANDUM AND ORDER


Petitioner Dennis Ghee ("Ghee") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his March 28, 1986 convictions in the New York Supreme Court, Kings County, for murder in the second degree, attempted robbery, and criminal possession of a weapon. Ghee bases his petition on two Sixth Amendment claims: first, that one of his attorneys rendered ineffective assistance in relation to a polygraph examination; and second, that an inculpatory statement he gave following that polygraph examination should have been suppressed. Because the actions of Ghee's attorney fall within the wide range of professionally competent assistance, and because the admission of Ghee's statement was appropriate under the leading Supreme Court case concerning waiver of the right to counsel during a post-polygraph examination, Wyrick v. Fields, 459 U.S. 42 (1982), the petition is denied.

BACKGROUND

Ghee was arrested on January 2, 1985, in connection with the December 25, 1984 murder of George Stewart ("Stewart") in Coney Island. Within one week of his arrest, Ghee submitted to a polygraph examination. Immediately after being told by the detective who administered the polygraph that he had failed the examination, Ghee gave an oral statement implicating him in Stewart's murder.

A. The Huntley Hearing

Ghee moved to suppress his post-polygraph statement. In March of 1986, the trial court held a suppression hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965). Because much of Ghee's habeas petition turns on the testimony disclosed at the Huntley hearing, the Court recounts that testimony in some detail.

Three individuals testified at the hearing: Detective James Rooney ("Detective Rooney"), who oversaw Ghee's arrest and took an initial statement from him, Detective-Investigator Joseph Ponzi ("Detective Ponzi"), who administered the polygraph examination and took Ghee's incriminating post-polygraph statement, and Frank Marcus ("Marcus"), Ghee's former attorney. 1. Detective Rooney's Testimony

Marcus withdrew his representation on January 31, 1985, approximately three weeks after Ghee failed the polygraph. He was replaced by John Avanzino ("Avanzino"). On May 5, 2003, in connection with Ghee's habeas petition, the Court appointed pro bono counsel. The Court extends its gratitude to counsel for her able assistance.

Detective Rooney testified that after Ghee's arrest, he "advised Ghee of his constitutional right[s]" by reading those rights from a preprinted card he and other officers carried. Huntley Transcript 1 (" Huntley Tr. 1") at 7. The card was admitted into evidence but is not part of the record before the Court. Detective Rooney testified that after waiving each of the rights he had read to Ghee, Ghee had told him that "he had met Reggie Reed ["Reed"] and Louis Siders ["Siders"] Christmas night, about 7 p.m. in Red Hook," that Reed and Siders had "pulled a gun on [a] cabdriver," that "[Reed] took the [cabdriver's] money[,]" and that "they went to [Reed's] apartment" in Coney Island. Id. at 12. According to Detective Rooney, Ghee related that "when they were there, he said a man came out and that [Reed] told [Siders] that that man had money. [Siders] went over and the next thing he heard was two shots." Id. at 13. The man who had been shot was Stewart, who lived on a floor above Reed.

The Huntley transcript consists of three volumes, each of which begins with page number 1. For clarity, "Huntley Tr. 1" shall refer to the volume dated March 14, 1986, " Huntley Tr. 2" shall refer to the volume dated March 20, 1986, and marked "Take 1," and " Huntley Tr. 3" shall refer to the volume dated March 20, 1986, and marked "first take."

From the context of the transcript it is plain that Detective Rooney was referring to Miranda rights, namely that the suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Dickerson v. United States, 530 U.S. 428, 435 (1990) (citing Miranda v. Arizona, 384 U.S. 436, 479 (1966)).

Shortly after giving his statement to Detective Rooney, Ghee repeated it to Assistant District Attorney Nora Band ("ADA Band") on videotape. The Court will refer to the oral statement Ghee gave to Rooney and the videotaped statement he gave to ADA Band together as the "Rooney statement."

2. Detective Ponzi's Testimony

The transcript of Detective Ponzi's testimony is apparently irretrievably lost. However, as reflected below, in making its determination not to suppress Ghee's post-polygraph statement, the Huntley court had the transcript of his testimony and read a portion of that transcript into the record; therefore, some of Detective Ponzi's Huntley testimony is extant. In addition, the Court has before it Detective Ponzi's trial testimony, which, based on the absence of objections by trial counsel, apparently was consistent with his Huntley hearing testimony. Based on these two sources, the Court is confident that the following constitutes an accurate summary of Detective Ponzi's Huntley testimony. See U.S. ex rel. Preston v. Mancusi, 422 F.2d 940 (2d Cir. 1970) (rejecting argument that district court erred in denying habeas petition because state court Huntley record was incomplete: "[T]he district judge had the transcript of the voir dire testimony and an adequate substitute for the testimony of the two ` Huntley' witnesses before him concerning all the testimony and allegations pertinent to his decision. The trial transcript, including the extensive voir dire examination prior to the admission of the three confessions and parts of the ` Huntley' hearing transcript were made available to the district court.").

Detective Ponzi was a Certified Polygraph Examiner assigned to the District Attorney's Polygraph Unit. He testified that on January 9, 1985, Marcus, Ghee, and ADA Eric Seidel ("ADA Seidel") arrived at his office because Marcus and ADA Dan Saunders ("ADA Saunders") had agreed that Ghee would be given a polygraph.

Detective Ponzi began by explaining to Ghee and Marcus the three-phase procedure that would be used. During the first phase, the pre-polygraph phase, he would ask Ghee "[q]uestions about his background, his pedigree information." Trial Tr. at 35. He would also ask Ghee "to read and sign an agreement stating that he was taking the test voluntarily[,]" would "ask [Ghee] to go back to the night of [the] incident and offer [Ponzi] a pre-test statement about that incident[,]" and, based on Ghee's statement, "would formulate questions for the polygraph examination [and] review those questions with Mr. Ghee in advance of the examination[.]" Id.

Detective Ponzi testified that he then explained to Ghee and Marcus that, during the second phase, he would actually administer the polygraph test, using the questions he had formulated and reviewed with Marcus and Ghee during the pre-polygraph phase. He told Marcus that no one was permitted in the polygraph room other than the examiner and the suspect, but that Marcus could observe the testing from an adjoining room through a window and listen via a microphone.

During the third and final phase, the post-polygraph, Detective Ponzi would "speak to [Ghee] if any problems arose from that examination." Id. Detective Ponzi testified that at some point prior to the examination, Marcus told him that he might not stay for all three phases.

After the procedure was explained, ADA Seidel advised Ghee of his Miranda rights. Marcus gave permission for the procedure to begin and "[d]id [not] put any restrictions on the extent of the interview[.]" Huntley Tr. 2 at 35. Ghee then signed a polygraph release form, titled "Agreement," that stated:

I, Dennis Ghee, do hereby voluntarily, without duress, coercion or promise of reward of immunity, submit to a Polygraph (Lie Detector) examination, having had said technique explained to my satisfaction, and hereby release Kings County District Attorney's Office, their employees, and the examiner Joseph J. Ponzi, administering this examination from all claims resulting from, or arising out of, this examination.

Appendix to Supplemental Memorandum of Law ("Appx."), Exh. G.

Commencing the first phase, ADA Seidel asked Ghee to explain his whereabouts on December 25, 1984. According to Detective Ponzi, Ghee, while still in Marcus' presence, stated that:

on December 25th of '84 at about 6 p.m. he had Christmas dinner with his family . . . that at about 8 o'clock that night, he left his mother's apartment to purchase some beer. He went down to a local grocery store and purchased some beer. In that grocery store, he met Louis Siders and Reginald Reed . . . [h]e had a beer with those two individuals and then returned to his mother's residence.
He stayed at his mother's house until about 8:30. At this point, he left with his wife Demetria, went to a friend's house in the Red Hook section . . . and stayed there until about 1:30 that night, at which time he returned home.
He told me he never planned any crimes with Louis Siders or Reginald Reed that night and never entered Coney Island at any point that night.

Trial Transcript ("Trial Tr.") at 43. The Court will refer to this statement as Ghee's "pre-polygraph statement." The pre-polygraph statement was radically inconsistent with the Rooney statement because in the former, Ghee denied being present in Coney Island, the scene of the crime, whereas in the latter, Ghee admitted he was in Reed and Stewart's Coney Island apartment building during the murder. The record before the Court does not reflect whether Detective Ponzi or ADA Seidel were aware of the existence or substance of the Rooney statement.

Based on Ghee's pre-polygraph statement, Detective Ponzi and ADA Seidel formulated several questions, three of which directly concerned the crime:

1. On last December 25th, was it you who shot that man on the tenth floor of that building on West 30th Street?
2. Did you take part in the shooting of that man on the tenth floor of that building in Coney Island last December 25th?
3. Were you present when that man was shot on the tenth floor of 2930 West 30th Street last December 25th?
Id. at 44. Phase one took "[f]ifteen, 20 minutes." Id. at 17.

After reviewing with Ghee and Marcus the questions that would be asked, the examination was administered. Only Detective Ponzi and Ghee were in the examination room. Detective Ponzi asked the three questions cited above three times each, and each time Ghee responded "No." Id. at 44. Phase two took "[t]wenty minutes, a half hour." Id. at 17. At the conclusion of the examination, Detective Ponzi left the polygraph room to consider the results in the adjoining room. He noticed that Marcus was not in that adjoining room. ADA Seidel was also absent.

After analyzing the test results for ten minutes, Detective Ponzi concluded that Ghee was not being truthful and returned to the polygraph room, where Ghee was waiting. Detective Ponzi told Ghee that "he had not been truthful when he responded `no' to the three relevant questions." Id. at 48. Ghee immediately agreed and "told [Detective Ponzi] that he was prepared to tell [him] what happened on that night." Id. at 49. Ghee told Detective Ponzi that he, Reed and Siders had all been carrying guns and that they went to Reed's apartment. Detective Ponzi related the remainder of Ghee's post-polygraph statement:

Once inside that apartment, Reginald Reed informed Mr. Ghee and Mr. Siders of a plan to rob someone upstairs in that building that night. Mr. Ghee told me that Mr. Reed told him that [Stewart, the victim] was a reefer seller and that [Stewart's apartment] was upstairs in the building[.] [After climbing the stairs to the higher floor and meeting an unnamed fourth person], Mr. Reed stated to Mr. Ghee, `Are you ready'? At that point, Mr. Ghee told me that he stood near the stairwell of that landing as the lookout as the other three individuals proceeded down the hallway. While standing near the stairwell, Mr. Ghee told me that he heard someone say, `Okay, let's get him.' He then heard two shots and all the individuals fled out of the building in different directions.
Id. at 50-51. The Court will refer to this statement as the "post-polygraph statement." At trial, Detective Ponzi admitted that he did not "ask for or receive any separate waiver" prior to speaking with Ghee during the post-polygraph phase, Trial Tr. at 15; the record does not indicate whether Detective Ponzi was asked during the Huntley hearing whether he requested or received such a separate waiver.

After Ghee gave the post-polygraph statement, Detective Ponzi asked if he would repeat it on an audiotape. Ghee initially agreed but soon thereafter stated that he would prefer that Marcus be present. Detective Ponzi searched for Marcus but, unable to find him, terminated the interview. Ghee was returned to his cell. The third phase took "[t]en, 15 minutes." Id. at 17. Thus, the entire polygraph procedure took no more than sixty-five minutes.

3. Marcus' Testimony

At the time of the Huntley hearing, Marcus, then 73, had retired, having practiced for "approximately 47 or 48 years." Huntley Tr. 2 at 18. He testified that Ghee's wife had retained him. On January 4, 1985, after entering a not guilty plea on his behalf, Marcus met with Ghee. Marcus testified that he "reviewed the facts with [Ghee]. I told him who I was. I said, `Look, I am your lawyer. You've got to tell me the truth so that I know how to defend your case.'" Id. at 10. Ghee assured him he would be truthful, and related to Marcus that "he had been having supper at his mother's home, I think it was Christmastime of 1984; that after he had the supper, he went out for a walk and that he had nothing to do with any holdup, or anything like that." Id. at 11. The Court will refer to this statement as the "Marcus statement."

Based on his belief that Ghee was being truthful, Marcus' "honest opinion [was] that the easiest way to get him out of jail, if he is innocent, [was to] have him take a lie detector test." Id. Marcus testified that the polygraph "was my suggestion. If the man was innocent, I wanted him out of jail soon. If he was not innocent, that's another story." Id. at 13.

Having obtained Ghee's consent to take a polygraph, Marcus contacted the District Attorney's office to propose that one be administered. His offer was accepted, and arrangements were made for Ghee to be delivered from his cell to Detective Ponzi's office on January 9, 1985.

As agreed, Marcus met Ghee and Detective Ponzi on January 9, 1985. According to Marcus, Detective Ponzi "told me that they would ask some innocuous questions, just to test out whether this man was telling the truth or not." Id. at 14-15. Marcus claimed he "never saw [the] release form" and that "[i]t was not signed in [his] presence." He could not recall ADA Seidel advising Ghee of his constitutional rights, "but he didn't have to because my client had already been advised of his right. . . . I know that when he was arrested he was advised of his rights. He didn't have to be advised a hundred times of his rights. He had already been advised." Id. at 16. He also testified that he could not recall whether he was present when Ghee gave his pre-polygraph statement.

Marcus stated that he stayed "[t]ill [the second phase of the polygraph examination] was finished, and then I was told after it, there were two polygraphs taken. I was told that the first one was inconclusive. They took a second polygraph and they said . . . that the second one showed that he had not been telling the truth. I was very much surprised in view of what I — what information I had available at the time." Id. at 18.

4. Recapitulation of Statements

To recapitulate, the Huntley court heard evidence of four separate statements Ghee gave concerning the Stewart murder:

(1) the Rooney statement (given on January 2, 1985, to Detective Rooney) (`on Christmas night of 1984, I was present when Reed and/or Siders robbed a cab and later killed Stewart');
(2) the Marcus statement (given on January 4, 1985, to Marcus) (`on Christmas night of 1984, I had dinner at my mother's home and later went for a walk');
(3) the pre-polygraph statement (given on January 9, 1984, to Detective Ponzi and ADA Seidel) (`on Christmas night of 1984, I had dinner at my mother's home and later went for a walk, where I met Reed and Siders, had a beer with them, returned to my mother's home, and then spent the rest of the evening with my wife at a friend's house in Red Hook'); and
(4) the post-polygraph statement (given on January 9, 1984 to Detective Ponzi) (`on Christmas night of 1984, I acted as a lookout while Reed and/or Siders killed Stewart').
5. The Huntley Court's Decision

At the conclusion of the Huntley hearing, Ghee's new attorney, Avanzino, argued that Ghee had waived his right to counsel only for the limited purpose of being questioned during the polygraph examination, not during all three phases of the test, and Ghee's post-polygraph statement should, therefore, be suppressed.

The trial court denied the motion. Finding that "Detective Ponzi was entirely credible[,]" that Marcus' "memory [was] . . . somewhat selective[,]" that Ghee's Miranda rights "were given to [Ghee] orally by ADA Seidel[,]" and that Marcus "was present when the rights were read to [Ghee] . . . and he was present during all of the stages up to when the defendant went in with Detective Ponzi into the polygraph room[,]" the court concluded:

I therefore find beyond a reasonable doubt that the defendant did knowingly and voluntarily waive his rights in the presence of counsel at the time the test was administered and that waiver covered the post-polygraph part of the examination.

* * *

I find in the context of this case, the procedures held, the fact that the request for the polygraph is advanced not by the People, not suggested by the People but by defense counsel, for the defendant, and that he was present during the formulation of the test, scope of it, the manner in which it would be conducted, the nature and scope of the questioning, even in the general sense, I find that the defendant's rights were fully protected and all statutory requirements were met and complied with and all constitutional safeguards and requirements were scrupulously observed.
Huntley Tr. 3 at 7-8, 10.

B. Trial and Direct Appeal

Ghee's trial commenced on March 20, 1986. The government presented its case principally through the testimony of Detectives Rooney and Ponzi; over Ghee's objection, the post-polygraph statement was placed in evidence. Ghee did not testify. On March 28, 1986, a jury returned a verdict finding Ghee guilty of all three crimes charged. His judgment of conviction was entered on April 16, 1986.

On direct appeal, Ghee claimed, among other things, that Marcus rendered ineffective assistance by abandoning him in the middle of the polygraph examination and that the trial court wrongly admitted the post-polygraph statement. On September 25, 1989, the Second Department affirmed the convictions. As for the ineffective assistance claim, the Second Department wrote:

The decision of the first attorney retained by the defendant to submit his client to a polygraph examination conducted by an investigator for the District Attorney was made after consultation with his client, the defendant, who professed his innocence. This strategy was apparently employed to induce the District Attorney to drop the charges against his client and was one that might well have been pursued by a reasonably competent attorney ( see, People v. Satterfield, 66 N.Y.2d 796, 497 N.Y.S.2d 903, 488 N.E.2d 834). It would be incongruous to find the attorney ineffective for believing his client's assertions of innocence and attempting to gain his release from prison. Moreover, we are not prepared to second-guess whether a course chosen by the defendant's counsel was the best strategy, or even a good one, so long as the defendant was afforded meaningful representation ( see, People v. Satterfield, supra, at 799-800, 497 N.Y.S.2d 903, 488 N.E.2d 834). Although counsel would have better served his client by remaining in the area until the three-part polygraph examination was completed, he could not have known that his client was going to change his story and confess after being confronted with the polygraph results. The defendant waived his Miranda rights, signed a polygraph release form and then knowingly lied on the polygraph examination. In sum, we find that the conduct of counsel was not ineffective.
People v. Ghee, 545 N.Y.S.2d 760, 762 (2d Dep't 1989).

As for Ghee's claim that his post-polygraph statement should have been suppressed, the Second Department stated:

Finally, we agree with the Supreme Court that the defendant knowingly, voluntarily and intelligently waived his right to counsel in the presence of counsel and that such waiver applied to the post-polygraph interview during which the defendant made an inculpatory statement ( see, People v. Smith, 63 N.Y.2d 41, 479 N.Y.S.2d 706, 468 N.E.2d 879, cert. denied 469 U.S. 1227, 105 S.Ct. 1226, 84 L.Ed.2d 364, reh. denied 471 U.S. 1049, 105 S.Ct. 2042, 85 L.Ed.2d 340; People v. Beam, 57 N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093). Accordingly, the defendant's motion to suppress his statement was properly denied.
Id. at 763.

On April 18, 1990, the New York Court of Appeals denied leave to appeal. See People v. Ghee, 76 N.Y.2d 735 (1990). Because Ghee did not seek a writ of certiorari from the United States Supreme Court, his judgment of conviction became final ninety days thereafter. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (a "conviction bec[omes] final for [AEDPA] purposes when [the] time to seek direct review in the United States Supreme Court by writ of certiorari expire[s]"); Sup. Ct. R. 13 (unless otherwise provided by law, petitions fo certiorari must be filed within ninety days after "a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals").

The parties agree that Ghee fairly presented the ineffective assistance of counsel claim to the Court of Appeals in his letter seeking leave to appeal, thereby exhausting that claim. See Morgan v. Bennet, 204 F.3d 360, 369 (2d Cir. 2000) (federal claim is exhausted when the highest court of the state has had a fair opportunity to pass on it). As addressed below, however, they disagree as to whether Ghee's claim regarding his post-polygraph statement was fairly presented to the Court of Appeals.

C. Post-Conviction Proceedings

Ghee pursued two motions pursuant to New York Criminal Procedure Law § 440.10 while his appeal was pending. Both motions principally claimed that Marcus was ineffective; neither alleged that Ghee should have been re- Mirandized at the conclusion of the polygraph examination.

In connection with his first § 440.10 motion, Ghee submitted an affidavit in which he averred that he had "told Mr. Marcus that I had an alibi for the evening of December 25, 1984 and that I had not committed the crimes charged. I also advised Mr. Marcus that I had given statements to the police at the time of my arrest, but he did not ask me anything about them." Petitioner's Exh. C ("Affidavit [of Dennis Ghee dated December 15, 1987 in] Support of Motion") at 2. Ghee also averred that Marcus had told him that "the [polygraph] test could not hurt me in any way." Id.

Marcus submitted a counteraffidavit in which he stated, in part, that:

After my client's arraignment, I spoke with him at the Brooklyn House of Detention. Defendant claimed to be innocent and said that he had an alibi. After questioning him closely, defendant convinced me that he was not present during the shooting of George Stewart and that he was not involved in any way.
During my conversation with defendant, he told me that he had made no incriminating statements to the police.
Prior to the polygraph test, I was informed by an assistant district attorney that my client had made statements to the police, but I was not told the contents of those statements. I did not learn until after the polygraph test that defendant had admitted to the police that he had been present at the scene of the crime.

Respondent's Exhibit S [Untitled Affidavit of Frank Marcus dated February 1988] at 1-2.

Ghee's first § 440.10 motion was denied on July 15, 1986. The court wrote that "[a]s regards the claim of inadequate counsel, defendant's bare allegation, devoid of evidentiary facts, fails to raise an issue warranting a hearing." Respondent's Exhibit H [Memorandum dated July 15, 1986, No. 2514/85]. There is no indication in the record that Ghee sought leave to appeal.

On January 15, 1988, Ghee filed a second § 440.10 motion, again claiming ineffective assistance of counsel. In support of his motion, Ghee submitted an affidavit from Ellen Schutz ("Schutz"), one of his appellate attorneys. According to the affidavit, Schutz, while investigating Ghee's case, had contacted ADA Saunders, who related that when Marcus had contacted him about arranging a polygraph, Marcus had said, "if [Ghee]'s not telling the truth, then fuck him." Appx., Exhibit D (Affirmation [of Ellen L. Schutz] in Support of [Second § 440.10] Motion) at 6. ADA Saunders told Schutz that "he would never forget [Marcus' `fuck him' statement] for as long as he lived." Id. at 7.

Ghee's second § 440.10 motion was denied on March 1, 1988; the reasons for the denial are not before the Court. By order dated April 26, 1988, a judge of the Appellate Division denied Ghee's motion for leave to appeal. See N.Y. Crim. Proc. Law § 460.15.

Neither party has argued that Ghee's apparent failure to seek leave to appeal the denial of his first § 440.10 motion has any procedural effect upon his habeas claims. The Court observes that a claim presented in a § 440.10 motion is fully exhausted once the Appellate Division denies leave to appeal because further leave to the Court of Appeals is not available. See N.Y. Rules of Court, Court of Appeals, § 500.10(a). In any event, Ghee's ineffective assistance of counsel claim was adjudicated on the merits by the Appellate Division on direct appeal.

DISCUSSION

Only federal issues can be raised on habeas review. See 28 U.S.C. § 2254(a). Because Ghee's conviction became final prior to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Ghee had a one-year grace period, or until April 24, 1997, to file his habeas petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). He filed his petition on that date; accordingly, it is governed by AEDPA.

Under AEDPA, habeas relief may not be granted for claims that were adjudicated on their merits by the state court unless the state court adjudication of the claim (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) 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). "To adjudicate a claim on the merits, the state court `need not mention the argument raised or cite relevant case law,' or even `explain its reasoning process.' Rather, a state court adjudicates a claim on its merits by `(1) dispos[ing] of the claim `on the merits,' and (2) reduc[ing] its disposition to judgment.'" Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir. 2003) (quotations omitted).

"A state-court decision is `contrary to' [the Supreme Court's] clearly established precedents if it `applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or if it `confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Early v. Packer, 123 U.S. 362, 365 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). "The court may grant relief under the `unreasonable application' clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case." Bell v. Cone, 535 U.S. 685, 695 (2002).

The Supreme Court has made it clear that "an unreasonable application is different from an incorrect one[.]" Id. "In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous. The state court's application must have been `objectively unreasonable.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (citing Williams, 529 U.S. at 409). See also Bell, 535 U.S. at 695 ("[t]he focus . . . is on whether the state court's application of clearly established federal law is objectively unreasonable"). Although "some increment beyond error is required" for a state court's application of clearly established Supreme Court precedent to be unreasonable, that increment "need not be great; otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Eze, 321 F.3d at 125 (internal citations omitted).

Further, whether a particular state court application of clearly established Supreme Court precedent is "unreasonable" may depend on the specificity of that precedent. As the Supreme Court recently explained,

The term `unreasonable' is `a common term in the legal world and, accordingly, federal judges are familiar with its meaning.' At the same time, the range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.
Yarborough v. Alvarado, ___ U.S. ___, 2004 WL 1190042 at *8 (June 1, 2004) (citations omitted). In addition, "[a]lthough [the court's] inquiry . . . is to determine whether the state courts reasonably applied clearly established Supreme Court law[,] . . . it [is] appropriate to make some examination of how the federal courts of appeals have analyzed the issue." Cruz v. Miller, 255 F.3d 77, 85 (2d Cir. 2001); see also Kennough, 289 F.3d 36, 46 n. 3 (2d Cir. 2001) ("The views of Circuit Courts [concerning unreasonable application analysis] are relevant because, as Williams stated, the lower federal courts retain their `independent obligation to say what the law is' under governing Supreme Court precedents.").

The state courts do not, however, always explain the basis for their decisions. See, e.g., Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (providing guidance for analysis of habeas petitions when state court concluded simply that "[d]efendant's remaining contentions are without merit"); Ryan v. Miller ( 303 F.3d 231, 246 (2d Cir. 2002) (state court stated that "[t]he defendant's remaining contentions are either unpreserved or without merit"). As the Second Circuit has observed, "[n]othing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process. Nowhere does [ 28 U.S.C. § 2254] make reference to the state court's process of reasoning." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). In such situations, Sellan instructs:

[W]hen a state court fails to articulate the rationale underlying its rejection of a petitioner's claim, and when that rejection is on the merits, the federal court will focus its review on whether the state court's ultimate decision was an `unreasonable application' of clearly established Supreme Court precedent.

* * *

We recognize that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the `unreasonable application' or `contrary to' tests. However, the absence of an explanation does not absolve us from performing the same task.
Id. at 311-12 (emphasis added). Thus, when confronted with the question of whether a state court decision that fails to adequately set forth its basis constitutes an `unreasonable application' of clearly established Supreme Court precedent, the habeas court must focus on whether the state court's result, not its reasoning process, accords with the factual circumstances before it and with Supreme Court precedent. See Bell v. Jarvis, 236 F.3d 149, 162 n. 10 (4th Cir. 2000) (noting that it is "[c]learly . . . acceptable" "for a federal habeas court to conclude that the state court decision was correct and, therefore, not an unreasonable application of Supreme Court precedent."); Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997) ("It doesn't follow that the criterion of a reasonable determination is whether it is well reasoned. It is not. It is whether the determination is at least minimally consistent with the facts and circumstances of the case. Which it was here, however deficient the discussion of the reasons for so believing by the state appellate court.").

Finally, § 2254(e)(1) provides that "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."

A. Ineffective Assistance Of Counsel

1. Ghee's Contentions

Ghee argues that Marcus was ineffective in the following ways: (1) by exposing him to the risks of a polygraph examination without exacting assurances from the District Attorney that Ghee would benefit if he passed the exam; (2) by failing to ascertain the nature of the Rooney statement prior to submitting Ghee to a polygraph; (3) by failing to interrupt the polygraph proceedings after hearing Ghee's pre-polygraph statement, which differed from the Marcus statement; and (4) by abandoning Ghee during the critical post-polygraph phase.

Recognizing AEDPA's constraints, Ghee argues that by failing to consider the totality of Marcus' performance, the Second Department unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984), in which the Supreme Court set forth the familiar two-prong test for evaluating ineffective assistance of counsel claims. Specifically, Ghee observes that the Second Department held only that Marcus' strategy to gain Ghee's freedom via a polygraph was sound and that Marcus' absence during the post-polygraph phase was excusable because he could not have known that Ghee would change his story. Ghee argues:

This myopic view of Mr. Marcus' shortfalls fails the "consider[ation] of all the circumstances" test as required by Strickland. First, Mr. Marcus should have known Mr. Ghee's story would change since it had already changed between the time Mr. Marcus visited Mr. Ghee in jail, and the time Mr. Ghee participated in the pre-polygraph examination. Second, Mr. Marcus never acted in Mr. Ghee's interests. Mr. Marcus' errors, while exemplified by the abandonment of his client and the ineptness in submitting him to a polygraph, go beyond these actions. He lacked the sense of duty of loyalty that is required by the Sixth Amendment. His callousness, as demonstrated in his statements to the ADA and at the Huntley Hearing, permeated his representation of Mr. Ghee. His interest in representing only an innocent client, his laziness by not investigating the availability of a non-adversarial polygraph examiner, and his carelessness in giving Ponzi carte blanche at the polygraph go beyond bad strategy. By not looking at all these errors, indeed, `all the circumstances,' the appellate court could not have reasonably applied Strickland. Accordingly, Mr. Ghee's ineffective assistance claim must prevail.

Supplemental Memorandum of Law In Support of Dennis Ghee's Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. Section 2254 ("Supp. Mem.") at 23-24. 2. Clearly Established Supreme Court Precedent

"It is past question that the rule set forth in Strickland qualifies as `clearly established Federal law, as determined by the Supreme Court of the United States.'" Williams, 529 U.S. 390-91. The first prong of Strickland requires that the defendant "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690. "In making that determination . . . the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id.

Under the second prong, the petitioner must establish that there is "a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome" of the proceeding. Id. If the court identifies more than a single instance of deficient performance, counsel's errors should be "consider[ed] . . . in the aggregate" because " Strickland directs [courts] to look at the `totality of the evidence before the judge or jury,' keeping in mind that `[s]ome errors have . . . a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture[.]'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (citing Strickland, 466 U.S. at 695-96). A court may find the right to effective assistance of counsel violated "by even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Murray v. Carrier, 477 U.S. 478, 486 (1986); see also Harris v. Senkowski, 298 F.Supp.2d 320, 320 (E.D.N.Y. 2004) (attorney's failure to challenge victim regarding prior inconsistent statement sufficiently egregious and prejudicial to warrant grant of writ of habeas corpus).

3. Analysis

For the reasons set forth below, the Second Department's determination that Marcus' performance was not deficient was not an unreasonable application of Strickland. i. Exposure to risks of polygraph examination without receipt of benefits

The Court agrees with the Second Department's assessment that Marcus' strategy in proposing a polygraph was a sound one. If Ghee could convince the polygraph examiner that he was truthful, the chances that Ghee would not be prosecuted undoubtedly would have been enhanced; conversely, because polygraph results are inadmissible under New York law, see People v. Shedrick, 66 N.Y.2d 1015, 1018 (1985), a negative result could not have been used against Ghee. That Marcus sought a polygraph examiner affiliated with law enforcement, rather than an independent examiner, also strikes the Court as reasonable: The District Attorney's office would likely be more favorably disposed toward a suspect who satisfied an examiner connected to the District Attorney's office rather than one not so affiliated.

ii. Failure to investigate

Ghee is correct that Marcus, like all attorneys, had a duty to make reasonable investigations of the factual circumstances as part of his representation. See Strickland, 466 U.S. at 690-91 ("counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary"). However, "[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id.

As Marcus testified at the Huntley hearing, his strategy was aimed at attempting to gain Ghee's freedom as soon as possible; toward that end, he met with Ghee immediately following the arraignment, learned from Ghee that Ghee had not made any prior incriminating statements, explored Ghee's alibi defense with him, was assured by Ghee that Ghee was being truthful, and, satisfied with Ghee's protestations of innocence, recommended a polygraph, which was conducted just five days later. In light of the information available to him at the time, Marcus had no reason to suspect that the Rooney statement was inconsistent with Ghee's alibi defense, and therefore had no reason to investigate the Rooney statement further. Considering all the circumstances, and affording Marcus the requisite deference, the Court concludes that Marcus was not ineffective for failing to ascertain the substance of the Rooney statement.

iii. Failure to interrupt the polygraph proceedings on basis of pre-polygraph statement

Marcus was not ineffective for failing to interrupt the polygraph proceedings when, during the pre-polygraph phase, Ghee related a version of his alibi that differed from the Marcus statement. The two statements were not inconsistent; the pre-polygraph statement simply added additional details to the statement Ghee had previously given to Marcus. In both statements Ghee maintained his innocence; that he provided additional details regarding his whereabouts to Detective Ponzi is hardly evidence that he was lying. While in hindsight it may appear that the additional details Ghee provided in his pre-polygraph statement perhaps should have raised red flags in Marcus' mind, hindsight is not the lens through which the Court views such claims. See Strickland, 466 U.S. at 689 ("every effort [must] be made to eliminate the distorting effects of hindsight"). At the time Ghee gave his pre-polygraph statement, Marcus had no reason to believe that Ghee was not being truthful.

iv. Absence during post-polygraph phase

In rejecting Ghee's argument that Marcus was ineffective for failing to be present during the post-polygraph phase, the Second Department acknowledged that "counsel would have better served his client by remaining in the area until the three-part polygraph examination was completed[,]" but stated that Marcus "could not have known that his client was going to change his story and confess after being confronted with the polygraph results." Ghee, 545 N.Y.S.2d at 762. The Court agrees on both scores; as set forth above, Marcus had no reason to believe that Ghee would lie during the polygraph examination and later confess to a crime that he had consistently told Marcus he did not commit.

Finally, Marcus' "fuck him" statement to ADA Saunders could reasonably be interpreted as having been intended to convey to the Assistant a strongly-held belief that Ghee was innocent, while Marcus' testimony at the Huntley hearing ("if he was not innocent, that's another story") may well have been meant to convey that it was his honest belief in Ghee's innocence that led him to recommend a polygraph in the first instance. In short, Marcus' comments are open to interpretation and do not necessarily carry with them the abandonment of loyalty that Ghee ascribes to them. In any event, it was not Marcus' alleged lack of loyalty to Ghee that prejudiced Ghee — it was Ghee's oral statement to Detective Rooney, his videotaped statement to the ADA, and his confession to Detective Ponzi during the post-polygraph phase. Having lied to Marcus, lied to Detective Ponzi, and then having blurted out a confession, Ghee should not be heard to complain that his downfall was attributable to Marcus.

4. Conclusion

In concluding that Marcus was not ineffective, the Second Department did not cite Strickland. It did, however, rely upon People v. Satterfield, 66 N.Y.2d 796 (1985), an ineffective assistance case which, in turn, relied upon the New York Court of Appeals' prior decision in People v. Baldi, 54 N.Y.2d 137 (1981). While Baldi enunciated an ineffectiveness standard that is "somewhat different" than Strickland, the Second Circuit has "held that the Baldi test is not contrary to the Strickland test for purposes of § 2254(d)(1)." Eze, 321 F.3d at 123 ("[t]he standard applied by the state court is not `diametrically different, opposite in character or nature, or mutually opposed' to the standard articulated in Strickland") (quoting Lindstadt, 239 F.3d at 198)). The Second Department also assessed, as Strickland commands, whether Marcus' professional behavior was deficient in light of all the facts available to him at the time. In so doing, its resolution of Ghee's ineffectiveness claim was neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. Accordingly, habeas relief is not warranted on this ground.

B. Admission Of Post-Polygraph Statement

1. Exhaustion

As is noted above, the government contends that Ghee's suppression claim was not fairly presented to the New York Court of Appeals. Relying on Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), the government argues that Ghee abandoned his suppression claim because, even though that claim was set forth in his appellate brief to the Second Department, it was not explicitly raised in either his petition or supplemental petition for leave to appeal to the New York Court of Appeals.

A state court is afforded a "fair opportunity" to rule on a federal claim when "the nature or presentation of the claim [was] likely to alert the court to the claim's federal nature." Daye v. Attorney General, 696 F.2d 186, 192 (2d Cir. 1982). Citing a specific constitutional provision will alert the state court to the constitutional nature of a claim. Jones v. Vacco, 126 F.3d 408, 413-414 (2d Cir. 1997). While such specificity is sufficient, it is not necessary; the Second Circuit has identified "other ways in which a petitioner may alert the state court to the constitutional nature of a claim without referring chapter and verse to the U.S. Constitution[.]" Ramirez v. Attorney Gen. of State of New York, 280 F.3d 87, 95 (2d Cir. 2001). These "other ways" are: "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation." Id.

Although Ghee's supplemental petition did not cite any specific provision of the United States Constitution, it did reference his "fundamental right to counsel under the federal and state constitutions." See Respondent's Exh. D (supplemental letter brief of November 21, 1989) at 7 (emphasis added). Further, while Ghee's supplemental petition did not cite any pertinent federal cases, it did rely on New York state cases employing constitutional analysis in similar fact situations. Notably, Ghee's supplemental petition relied on People v. Claudio, 59 N.Y.2d 556 (1983), which involved a motion to suppress an inculpatory statements given after the right to counsel had been invoked. Although Claudio was an ineffective assistance case, its resolution turned on the question of whether the defendant's right to counsel under the "Sixth Amendment of the United States Constitution" had yet attached at the time he made an inculpatory statement. Id. at 557.

In addition, the Court agrees with Ghee that his challenge to the effectiveness of his counsel with regard to the polygraph examination is inextricably linked to the issue of whether he waived his right to have counsel present during the post-polygraph phase. For example, the supplemental petition asserts that Ghee was "subjected to interrogation by the authorities in counsel's absence" and "interrogated by the authorities alone" and goes on to discuss at some length the question of whether Ghee "waive[d] any of his fundamental rights outside counsel's presence." Respondent's Exh. D at 5, 6-7. Although raised in the context of his ineffective assistance claim, these assertions call clearly to mind the constitutional right, absent a waiver, not to be questioned by the authorities outside the presence of counsel once the right to counsel is asserted. Further, these assertions are based on facts well within the mainstream of constitutional litigation in this area; as is addressed below, these facts are strikingly similar to those in Wyrick, the leading United States Supreme Court case concerning the waiver of the right to counsel during a post-polygraph examination.

This is not, therefore, a case where in order to be alerted to Ghee's federal constitutional claim, the New York Court of Appeals was required "to look for a needle in a paper haystack." See Grey, 280 F.3d at 120. Rather, Ghee's supplemental petition asserted a violation of his right to counsel under the United States Constitution, relied on state cases employing constitutional analysis in like fact situations, described his claim in terms so particular as to call to mind the federal constitutional right to have counsel present during an interrogation, and alleged a pattern of facts that is well within the mainstream of litigation regarding that right. Viewing in the aggregate the assertions, citations and allegations in Ghee's supplemental petition, a "reasonable jurist would have perceived such a claim to have been made." Ramirez, 280 F.3d at 96.

Accordingly, the Court concludes that Ghee exhausted his second Sixth Amendment claim and turns to the parties' substantive arguments.

2. Ghee's Contentions

Ghee contends that his post-polygraph statement should have been suppressed because he was not re- Mirandized before Detective Ponzi proceeded with the post-polygraph phase of the examination. Ghee asserts that the waiver he signed did not explicitly contemplate post-polygraph questioning. In Ghee's view, that he was told that there might be post-polygraph questioning did not constitute a waiver of his right to have counsel present during the post-polygraph phase.

3. Clearly Established Supreme Court Precedent Wyrick v. Fields, 459 U.S. 42 (1982), represents clearly established Supreme Court precedent addressing the admissibility of inculpatory statements given after a polygraph examination. In light of the striking similarities in the facts underlying Wyrick and the present case, the Court discusses Wyrick in some detail:

The defendant, Fields, was charged with rape; after consulting with counsel, he requested a polygraph examination. Fields' counsel was not invited to be present at the examination, nor was he informed as to what day the examination would be given. Prior to undergoing the examination, Fields signed a written consent form informing him of his Miranda rights. He was also read a statement that included the following warning: "If you are now going to discuss the offense under investigation, which is rape, with or without a lawyer present, you have a right to stop answering questions at any time or speak to a lawyer before answering further, even if you sign a waiver certificate." Id. at 44. Fields and his attorney were not, however, informed specifically that he would be asked questions after the examination. See Id. at 47. Nonetheless, at the conclusion of the polygraph, the examiner told Fields that there had been "some deceit" and "asked him why his answers were bothering him," at which point Fields gave an inculpatory statement. Id. at 44-45. At his state court trial, Fields' motion to suppress testimony regarding his statement was denied, the testimony was admitted, and Fields was convicted.

Eventually, Fields brought a federal habeas petition challenging his state court conviction. The petition was denied by the district court. On appeal, the Eighth Circuit reversed based on its opinion that, under the Fifth Amendment, the inherently coercive nature of a polygraph examination required that a suspect be re-advised of his Miranda rights before being subjected to post-polygraph questioning. See Fields v. Wyrick, 682 F.2d 154, 159-162 (8th Cir. 1982).

The Supreme Court rejected this per se rule as a misapplication of Edwards v. Arizona, 451 U.S. 477 (1981), which requires that, in determining the validity of a waiver of the right to counsel, courts must examine the totality of the circumstances. Examining the circumstances surrounding Fields' post-polygraph interrogation, the Supreme Court explained:

By requesting a polygraph examination, [the defendant] initiated interrogation. That is, Fields waived not only his right to be free of contact with the authorities in the absence of an attorney, but also his right to be free of interrogation about the crime of which he was suspected. Fields validly waived his right to have counsel present at "post-test" questioning, unless the circumstances changed so seriously that his answers no longer were voluntary, or unless he no longer was making a "knowing and intelligent relinquishment or abandonment" of his rights.
Wyrick, 459 U.S. at 47 (citation omitted; emphasis added). The Supreme Court rejected Fields' contentions that (1) merely disconnecting the polygraph equipment was a significant change in the character of the interrogation, and (2) that he and his counsel reasonably anticipated that no questions would be asked after the examination. It held that because Fields had been informed prior to the test that he could stop the questioning and request his lawyer to join him at any time, and because "[m]erely disconnecting the polygraph equipment could not remove this knowledge from Fields' mind," id., his knowing and intelligent relinquishment of his right to counsel perdured during the post-test questioning. Based on these conclusions, the Supreme Court reversed the Eighth Circuit's holding that Fields' statement had been obtained in violation of his Fifth Amendment right to have counsel present at his interrogation.

In deciding that Fields' Fifth Amendment rights had not been violated, the Supreme Court left open the question of whether his post-polygraph interrogation violated his Sixth Amendment rights. See id. at 49; id. at 52 (Marshall, J., dissenting). On remand, the Eighth Circuit granted Fields' petition to consider this question and, applying the same analysis that the Supreme Court had applied to Fields' Fifth Amendment claim, concluded that he had also waived his Sixth Amendment right to have counsel present at the post-polygraph interrogation. See Fields v. Wyrick, 706 F.2d 879, 880 (8th Cir. 1983); see also United States v. Eagle Elk, 711 F.2d 80, 82 (8th Cir. 1983) (concluding that "the appropriate standard for reviewing the validity of the sixth amendment right to have counsel present at an interrogation is essentially the same standard applied to waivers of the fifth amendment right to counsel where the right to counsel has been previously invoked.") (footnote omitted). In a more recent decision, the First Circuit also applied Wyrick to a Sixth Amendment challenge to the admission of a post-polygraph inculpatory statement. See United States v. Leon-Delfis, 203 F.3d 103, 110-11 (1st Cir. 2000). As previously noted, it is appropriate under AEDPA to examine these circuit court decisions. See Cruz, 255 F.3d at 85; Kennough, 289 F.3d at 46 n. 3. In addition, although the Supreme Court has not squarely addressed the question in the context of post-polygraph questioning, it has applied the standard for reviewing the validity of a waiver of the Fifth Amendment right to counsel to a waiver of the Sixth Amendment right to counsel where, as in the present case, the right to counsel has been previously invoked. See Michigan v. Jackson, 475 U.S. 625, 636 (1986). Accordingly, the Court analyzes Ghee's Sixth Amendment claim under the standard articulated in Wyrick and subsequent Fifth and Sixth Amendment case law applying that standard.

The Fifth Amendment protects the right to request that counsel be present during custodial interrogation as a safeguard of the accused's right to remain silent. See Edwards, 451 U.S. at 485. The Sixth Amendment protects the right to representation by counsel during a criminal prosecution, and attaches after the initiation of formal charges. See Michigan v. Jackson, 475 U.S. 625, 631 (1986).

Several courts have articulated relevant facts to be examined in determining whether a waiver of the Fifth or Sixth Amendment right to counsel for the purpose of a polygraph test carries over to post-polygraph questioning. These circumstances include: whether the suspect had consulted with counsel; whether the suspect requested the polygraph examination; whether the suspect was informed that he or she would be asked questions about a specific offense under investigation; whether the suspect was informed of the possibility of post-examination questioning; whether the signed waiver clearly specified that it applied to post-polygraph questioning or only to the polygraph test; who initiated the post-polygraph questioning; how much time passed between the polygraph and post-polygraph phase; and whether the post-polygraph examination was conducted by the same person who conducted the polygraph examination. See Wyrick, 459 U.S. at 47; Leon-Delfis, 203 F.3d at 111; United States v. Johnson, 816 F.2d 918, 921 n. 4 (3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426, 1427-1429 (9th Cir. 1984); Eagle Elk, 711 F.2d at 82.

4. Analysis

In determining that Ghee's post-polygraph statement was properly admitted because his pre-polygraph "waiver applied to the post-polygraph interview[,]" the Second Department did not cite Wyrick or any other federal case interpreting or applying it; rather, it relied upon People v. Smith, 63 N.Y.2d 41 (1984) and People v. Beam, 57 N.Y.2d 241 (1982), neither of which cited Wyrick. Neither Smith nor Beam addresses the issue of a defendant's right to counsel under the United States Constitution. Instead, they analyze that right under the New York State Constitution. New York courts have recognized that the right to counsel under the New York State Constitution "extends well beyond the right to counsel afforded by the Sixth Amendment of the United States Constitution and other State Constitutions." People v. Davis, 544 N.Y.S.2d 450 (N.Y. 1990). It appears, then, that in affirming Ghee's conviction, the Second Department did not "apply" clearly established Supreme Court precedent; rather, it applied its own state law precedent. Accordingly, pursuant to the Second Circuit's opinion in Sellan and the cases cited approvingly therein, including Bell and Hennon, the Court applies Wyrick to the Second Department's decision — that Ghee's pre-polygraph waiver extended to his post-polygraph statement — in light of the facts and circumstances underlying his claim.

The Huntley court expressly found that (1) after consulting with Ghee and obtaining his permission, Marcus proposed the polygraph to ADA Saunders; (2) Ghee was represented by counsel up to and during the pre-polygraph phase; (3) the three phases of the polygraph procedure, including the possibility that Detective Ponzi would speak to Ghee during the post-polygraph phase if any questions arose, were explained to Ghee and Marcus prior to the examination; and (4) Ghee was read and waived his Miranda rights in Marcus' presence. These findings are fairly supported by the record and therefore presumed correct pursuant to 28 U.S.C. § 2254(e)(1). Based on its review of the record, the Court concludes that the Huntley court also implicitly found that (5) the examiner and post-polygraph questioner were the same person; (6) at most, sixty-five minutes passed from the commencement of phase one to the completion of phase three; and (7) Ghee requested counsel after Detective Ponzi asked him to repeat his inculpatory post-polygraph statement on audiotape. The presumption of correctness applies to implied as well as express findings of fact. See Reyes v. Grenier, ___ F. Supp. 2d ___, 2004 WL 2059572, *12 (E.D.N.Y. Sept. 15, 2004).

These findings support a conclusion under Wyrick and its progeny that Ghee's waiver remained valid throughout the post-polygraph phase. Like the defendant in Wyrick, Ghee initiated interrogation by requesting a polygraph examination, consulted with counsel before requesting that examination, was given a Miranda warning prior to commencement of the examination, and knew before the examination commenced that he would be questioned about the specific offense under investigation. Also like Wyrick, the examiner and post-polygraph questioner were the same person, and only a short period of time pased from the commencement of phase one to the completion of phase three.

Of paramount importance is that, unlike Wyrick, where the defendant and his attorney were not informed specifically of the possibility of post-polygraph questioning, Ghee and his attorney were informed before the examination commenced about the possibility of post-polygraph questioning. Thus, there is an even stronger argument in the present case for finding a valid waiver of the right to have counsel present during post-polygraph questioning than there was in Wyrick, unless, as Wyrick instructs, the circumstances changed so seriously that Ghee's answers were no longer voluntary, or unless he no longer was making a "knowing and intelligent relinquishment or abandonment" of his rights. See Wyrick, 459 U.S. at 47.

Ghee argues that the circumstances changed such that his waiver was no longer voluntary because Ponzi analyzed the test results, discovered that Marcus was no longer in Ponzi's office, and then went forward with the post-polygraph questions, taking advantage of Marcus' apparent absence. As the Supreme Court explained in Wyrick, the fact that the examiner confronted the defendant with the examination results "effectuated no significant change in the character of the interrogation." Id. Because the examiner "could have informed [the defendant] during the examination that his answers indicated deceit; asking [him], after the equipment was disconnected, why the answers were bothering him was not any more coercive." Id. So too in the present case. Ponzi could have confronted Ghee with the examination results during the examination itself; accordingly, the fact that he did so during the post-polygraph phase, regardless of whether Marcus was in Ponzi's office, did not effectuate a change in circumstances. In Wyrick, the Supreme Court also explained that merely disconnecting the polygraph equipment could not remove from the defendant's mind knowledge of his right to counsel. Id. at 47-48. The same is true in the present case. Notably, Ghee asked for Marcus during the post-polygraph phase, suggesting that throughout all phases of the examination he understood that he had the right to stop the questioning at any time and speak to his attorney.

Ghee also argues that he was no longer making a knowing and intelligent relinquishment or abandonment of his rights during the post-polygraph phase because the Miranda warning he was given was generic and did not specifically address the possibility of post-examination questioning. This contention is untenable in light of the fact that Ghee, in Marcus' presence, was advised of the possibility of post-polygraph questioning, yet chose to waive his Miranda rights and proceed with the investigation, and that Ghee asked for Marcus during the post-polygraph phase, suggesting that he understood his right to stop the interrogation and speak to his attorney.

Given the totality of the circumstances, the Court concludes that the Second Department's determination that Ghee's pre-polygraph waiver extended to the post-polygraph stage was not contrary to, or an unreasonable application of, clearly established Supreme Court precedent. The Court concludes, therefore, that habeas relief is not warranted on this claim.

CONCLUSION

The petition is denied. A certificate of appealability will not issue because petitioner has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.

SO ORDERED.


Summaries of

GHEE v. ARTUZ

United States District Court, E.D. New York
Sep 22, 2004
Case No. 97-CV-2191 (FB) (E.D.N.Y. Sep. 22, 2004)
Case details for

GHEE v. ARTUZ

Case Details

Full title:DENNIS GHEE, Petitioner, v. CHRISTOPHER ARTUZ, Superintendent, Green Haven…

Court:United States District Court, E.D. New York

Date published: Sep 22, 2004

Citations

Case No. 97-CV-2191 (FB) (E.D.N.Y. Sep. 22, 2004)