Opinion
No. 03 CV 4514 (JG).
October 12, 2004
ABDUL PULLIAM, DIN: 00-A-6203, Elmira Correctional Facility, Elmira, New York, Petitioner Pro Se.
CHARLES J. HYNES, District Attorney, Kings County, Brooklyn, New York, By: Anthea H. Bruffee, Assistant District Attorney, Attorney for Respondent.
MEMORANDUM AND ORDER
Petitioner Abdul Pulliam, seeks habeas corpus relief from manslaughter and weapon possession convictions entered after a jury trial in state court. I held oral argument by teleconference on October 8, 2004, and for the reasons set forth below, deny the petition.
I regret having to inform Pulliam that he will not receive a copy of the transcript of oral argument for his petition, as was promised him during the argument. As is my custom in these cases, I respectfully requested that the District Attorney order a copy of the transcript and send it to Pulliam. However, I was informed after the argument that it is no longer the policy of the Kings County District Attorney's Office to honor such requests by the Court.
BACKGROUND
On December 23, 1998, Faisel Smith had an argument with Ian and Iver Gabourel in front of 1225 Bushwick Avenue in Brooklyn, the Gabourel residence. The next day, Pulliam, who was a friend of Smith's, returned to the scene of the argument with two or three of his friends, including Peter Ramos. Smith and Manny Cintron were also present, and the group was armed. After an unsuccessful attempt by Pulliam to kick open the door, he and Peter Ramos fired 17 bullets through the door of the Gabourel apartment. Five shots hit Eustace Gabourel, Ian and Iver's father, killing him.The police apprehended Smith and Cintron about 20 minutes after the shooting. They, along with two other witnesses, told the police that Pulliam was involved. The police in turn contacted Pulliam's mother, Nancy Holston, in an effort to bring Pulliam in for questioning. On January 5, 1999, Holston went to attorney Gregory Reid's office and asked Reid to represent Pulliam. She made a payment to him at that time. On February 9, 1999, Detectives O'Keefe and Dixon visited Holston in her home. She told them that she had retained Reid to represent Pulliam, and that Pulliam had refused to contact Reid and to turn himself in. Detective Dixon contacted Reid and learned that Pulliam had made no contact with Reid himself.
The detectives eventually learned that Pulliam was in Hartford, Connecticut and on March 18, 1999, Pulliam was arrested and taken to Hartford Police Department Headquarters. There, he was advised of his Miranda rights. He indicated that he understood them, and he subsequently gave oral and written statements describing the events of December 24, 1999. Pulliam was then taken back to New York. He was read hisMiranda rights again, and he waived them a second time. Pulliam then gave a videotaped statement to Assistant District Attorney Vicki Ma of the Investigations Bureau of the King's County District Attorney's Office.
Pulliam was charged with murder in the second degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. A suppression hearing was held on April 11 and 12, 2000, to determine the admissibility of Pulliam's oral, written and videotaped confessions. The trial court held as follows:
The confessions, oral, written, videotaped, were all preceded by knowing and voluntary waivers of [Pulliam's] Miranda rights.
Now, there has been some evidence that defendant's mother wanted to retain Mr. Reid as counsel for her son and that Mr. Reid did consider himself as retained, at least preliminarily in this matter. However, Mr. Reid never spoke to or was otherwise in contact with defendant prior to arraignment. Also, there is strong evidence from the mouth of defendant's own mother that defendant did not want to be represented by counsel and did not even want to speak to counsel, and there's no indication that this was limited to any issue regarding surrender but was just a general refusal to speak to counsel.
The mother is not the client and has no right to retain counsel for her son in light of her son's apparent refusal to accept such retention of counsel.
Accordingly, the motion to suppress is denied. . . .
(Hrg. Tr. 81-82.)
On September 5, 2000, after a jury trial, Pulliam was convicted of manslaughter in the second degree, and criminal possession of a weapon in the second degree. Pulliam was sentenced to a five to fifteen-year term of imprisonment for the manslaughter conviction and a fifteen-year term of imprisonment for the weapons conviction, to run concurrently with each other and with a one and one-third to four-year term of imprisonment for Pulliam's violation of probation imposed on a prior first-degree robbery conviction.
Pulliam appealed his conviction to the Appellate Division, Second Department, arguing that his right to counsel was violated because the police elicited written and videotaped confessions from him knowing that he had retained counsel. The Appellate Division affirmed the conviction on March 2, 2002, holding that:
. . . the Supreme Court correctly concluded that the right to counsel had not indelibly attached at the time the defendant made the inculpatory statements and videotape in question. The defendant made the inculpatory statements only after he had declined to accept the attorney allegedly provided by his mother and after he knowingly, intelligently, and voluntarily waived his Miranda rights.People v. Pulliam, 738 N.Y.S.2d 593 (2d Dep't 2002) (internal citations omitted). Pulliam requested leave to appeal on this ground, which was denied on October 3, 2002. People v. Pulliam, 98 N.Y.2d 771 (2002) (Wesley, J.).
In this petition, filed on September 5, 2003, Pulliam claims that the trial court's admission of his inculpatory oral, written, and videotaped statements warrants habeas relief.
DISCUSSION
A. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
However, there is "force" to the argument "that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision"; "[§] 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law." Yarborough v. Alvarado, 540 U.S. 1, 124 S. Ct. 2140, 2150-51 (2004). The Supreme Court has concluded, however, that while "the difference between applying a rule and extending it is not always clear," "[c]ertain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt." Id. at 2151.
Under the "unreasonable application" standard set forth inWilliams, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-21 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the 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." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
The Supreme Court recently explained that the specificity with which the rule of law at issue is defined may affect whether the state court's determination was "unreasonable":
[T]he 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.Alvarado, 124 S. Ct. at 2149.
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, the Act sets standards for review of factual bases for judgments and for individual factual determinations. Habeas relief may not be granted unless the state court's judgment "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). Essentially, "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
AEDPA has a separate standard for review of individual factual determinations made by state courts. 28 U.S.C. § 2254(e)(1);See Miller-El, 537 U.S. at 341-42 ("It [is] incorrect . . . when looking at the merits, to merge the independent requirements of §§ 2254(d)(2) and (e)(1). AEDPA does not require petitioner to prove that a decision is objectively unreasonable by clear and convincing evidence."); see also Parsad v. Greiner, 337 F.3d 175, 181 (2nd Cir. 2003). A state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This clear and convincing evidence standard applies to "state-court determinations of factual issues rather than decisions."Miller-El, 537 U.S. at 341.
However, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)). Mixed questions of law and fact, however, such as the ineffective assistance of counsel inquiry, are reviewed in accordance with Section 2254(d). Thompson v. Keohane, 516 U.S. 99, 111-12 (1995); Rodriguez v. Schriver, No. 99 Civ. 8660 (FM), 2003 WL 22671461, at *8 (S.D.N.Y. Nov. 12, 2003).
B. Pulliam's Claims
1. The Denial of Pulliam's Right to Counsel Under New York Law
Pulliam claims that habeas relief is warranted because under New York law, the right to counsel attaches when an uncharged individual has retained a lawyer in the matter at issue. See Pet. Reply at 3. Under 28 U.S.C. § 2254(a), habeas review of state convictions is available "only on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." As the statute clearly states, I cannot grant habeas relief on Pulliam's argument that his right to counsel was violated under state law.
2. The Denial of Pulliam's Fifth Amendment Rights
The Supreme Court has laid out bright line tests with respect to the right to counsel during custodial interrogation as a safeguard of the Fifth Amendment right against selfincrimination. First, under Miranda v. Arizona, "[a] suspect must be apprised of his rights against compulsory self-incrimination and to consult with an attorney before authorities may conduct custodial interrogation." Texas v. Cobb, 532 U.S. 162, 171 (2001) (citingMiranda v. Arizona, 384 U.S. 436, 479 (1966), and Dickerson v. United States, 530 U.S. 428, 435 (2000)). The suspect, however, may waive this right to remain silent or to consult with counsel as long as the waiver is made both voluntarily as well as knowingly and intelligently. North Carolina v. Butler, 441 U.S. 369, 374-75 (1979); see also Edwards v. Arizona, 451 U.S. 477, 482-83 (1981). Law enforcement officers are free to interrogate suspects who effectively waive these rights after being given adequate Miranda warnings. Davis v. United States, 512 U.S. 452, 458 (1994).
However,
. . . when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [A]n accused . . . is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.Edwards, 451 U.S. at 484-85 (emphasis added). To trigger the right to counsel under the Fifth Amendment, "the suspect must unambiguously request counsel. . . . [H]e must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Davis, 512 U.S. at 459. In other words, to stop interrogation, a suspect must clearly request the presence of counsel while he is in custody.
In this case, Pulliam does not claim that he requested the presence of counsel during the interrogations in which he made the oral, written and videotaped statements in question. Instead, he argues that the Appellate Division's determination that his right to counsel had not attached because of his refusal to accept the counsel his mother had retained for him was incorrect, and therefore, his statements were inadmissible under Miranda and its progeny. I disagree.
The Supreme Court has made clear that the right to counsel under the Fifth Amendment attaches only if a suspect "unambiguously" requests the presence of counsel while in custody. See Davis, 512 U.S. at 459. Pulliam did not make such a request. The trial court's factual determination that Pulliam had refused representation is not relevant to this inquiry. Moreover, based on the record, I do not find that Pulliam has contradicted this finding by clear and convincing evidence, as required by AEDPA. See 28 U.S.C. § 2254(e)(1).
Thus, I hold that the Appellate Division's determination that "the right to counsel had not indelibly attached" and that Pulliam made the statements in question "after he knowingly, intelligently, and voluntarily waived his Miranda rights" was neither contrary to nor an unreasonable application of federal law. People v. Pulliam, 738 N.Y.S.2d 593 (2d Dep't 2002). Accordingly, Pulliam cannot prevail on this ground for relief.
3. The Denial of Pulliam's Right to Counsel Under the Sixth Amendment
Pulliam also claims that his right to counsel under the Sixth Amendment was violated by the police interrogation of him without the presence of his attorney. The law is equally clear here. "[T]he Sixth Amendment right to counsel does not attach until after initiation of formal charges." Moran v. Burbine, 475 U.S. 412, 431 (1986). In this case, Pulliam had not yet been formally charged when he made the statements to the police and the Assistant District Attorney. Thus, I find that the state court's holding that Pulliam's right to counsel had not attached before the statements were made was neither contrary to nor an unreasonable application of federal law.
CONCLUSION
For the foregoing reasons, the petition is denied. As Pulliam has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.