Maldonado v. Greiner

Full title: CHARLES MICHAEL MALDONADO, Petitioner -against- CHARLES GREINER…

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

Date published: Oct 28, 2003

Ol Civ. 0799 (KMW) (AJP) (S.D.N.Y. Oct. 28, 2003)

Opinion

Ol Civ. 0799 (KMW) (AJP)

October 28, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

To the Honorable Kimba M. Wood, United States District Judge:

Charles Michael Maldonado, represented by counsel, petitions for a writ of habeas corpus from his September 5, 1996 conviction in Supreme Court, Bronx County, of second degree murder and sentence of twenty years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4, 6.) Maldonado alleges that: (A) his conviction was based on a violation of his privilege against self-incrimination under the Fifth Amendment and Miranda (Dkt. No. 1: Pet. ¶ 12(A)); (B) his "conviction was based upon his coerced confession" (Pet. ¶ 12(B)); (C) his "conviction was based upon his 'involuntary confession'" and he was "denied the right to a proper pretrial hearing on the issue" (Pet. ¶ 12(C)); and (D) under the "totality of the circumstances," his conviction was "based on statements that were not provided voluntarily" (Pet. ¶¶ 12(D)). Maldonado argues that the claims asserted in paragraphs 12(B)-(D) of the petition were not raised on direct appeal "due to the ineffective assistance of appellate counsel." (Pet. ¶ 13.) Maldonado's claims come down to challenges to the admission of his confessions at trial as "involuntary" (psychologically coerced) and in violation of his Miranda rights, with the voluntariness claim reviewed via a claim of ineffective assistance of appellate counsel.

For the reasons set forth below, Maldonado's petition should beDENIED.

FACTS

On February 16, 1994, Linda Padilla was strangled and her body placed in the trash compactor at 3333 Henry Hudson Parkway in the Bronx. (Ex. 1: Maldonado 1st Dep't Br. at 2, 14; Trial Transcript ("Tr.") 101-02, 276-77, 339, 343, 383.)¹ At the time, Maldonado was 19 years-old and lived in the apartment with Padilla, her boyfriend Harvey Wessler, and Maylene Perez (Maldonado's 15-year old girlfriend). (E.g, Dkt. No. 7: Maldonado Reply Br. at 1, ¶ 1; Dkt. No. 5: State Br. at 3.)

Pre-Trial Suppression Hearing

On August 1 and 5, 1996, a combined Huntley/Dunaway hearing² was held in Supreme Court, Bronx County, to determine whether statements that Maldonado made both before and after receiving his Miranda warnings would be admissible at trial. (Hearing Transcript ("H.") 1-241; Ex. 2: State 1st Dep't Br. at 3.)³ Detective Joseph Flannino, "the detective in charge of this investigation" (Flannino: H. 50), testified at the suppression hearing for the State, and Maylene Perez, Maldonado's girlfriend, testified for the defense (Perez: H. 164-65).

2 See People v. Huntley, 15 N.Y.2d 72, 78, 255 N.Y.S.2d 838, 843-44 (1965); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248 (1978).

3 At this hearing, as well as at trial and sentencing, Maldonado was represented by Richard Berne, Esq. (See. e.g., H. 1; Tr. 1.)

Detective Flannino's Testimony

On February 18, 1994, Detective Flannino and another detective responded to a call that a woman was found in a trash compactor at 3333 Henry Hudson Parkway. (Flannino: H. 6.) The detectives arrived in the "basement compactor room" around 8:45 a.m. (Flannino: H. 6-7, 49, 52.) At 9:15 a.m in the compactor room, Detective Flannino spoke with Harvey Wessler, whom he described as "the acquaintance or the boyfriend of Ms. Padilla, and . . . also a friend who looked after or took care of Mr. Maldonado." (Flannino: H. 8-9.) Around 9:35 a.m., Wessler identified the victim as Linda Padilla. (Flannino: H. 9.) Wessler explained that Padilla had been staying at his apartment, as was Maldonado and Maldonado's girlfriend, Perez, who was nine months pregnant. (H. 10.) Wessler consented to a search of his apartment. (Flannino: H. 11, 52-53, 57).

"[F]our or five" police officers entered the apartment with Wessler "[s]hortly after 10 o'clock." (Flannino: H. 57, 58.) The police found Maldonado and Perez "sound asleep in the living room area." (Flannino: H. 12, 58.) Maldonado "had . . . a little bit of difficulty in just waking up" and was "rather groggy." (Flannino: H. 14, 39.) Because "it took a little while" to wake up Maldonado, his "first contact with the police was sometime around 10:15 to 10:20." (Flannino: H. 58-59.) Detective Flannino believed Maldonado "was a little irritated until Mr. Wessler calmed things down and explained . . . the police were here and why they were there." (Flannino: H. 14, 59.) Maldonado "was a little agitated . . . about being startled under those circumstances, being surrounded by police officers." (Flannino: H. 60.) Maldonado and Perez got dressed. (Flannino: H. 14.) It was "quite obvious" to Detective Flannino that Perez was "nine months pregnant" and "by all appearances ready to give birth at any time." (Flannino: H. 65.)

At Detective Flannino's request, Maldonado, Perez, and Wessler agreed to go to the 50th Precinct Detective Squad Office. (Flannino: H. 15.) Detective Flannino wanted them to speak to them at the precinct "just to be able to understand what happened and could have happened at the location." (Flannino: H. 15.) At this time, none of the three individuals were "in custody in connection with the investigation" or "restrained in any way." (Flannino: H. 16.) Detective Flannino was not present when Officers Hennelly and Parmely drove them to the precinct "between 10:30 and 11" a.m. (Flannino: H. 61-62.) Detective Flannino remained at the apartment building and returned to the precinct "around 12 o'clock." (Flannino: H. 61, 64.)

When Detective Flannino arrived at the precinct, Maldonado "was sitting in a corner of the 50 Detective Squad office," Perez was "[i]n the opposite corner" of the room, and Wessler was in a third corner. (Flannino: H. 64-66.) Detective Flannino testified that although Maldonado, Perez, and Wessler "were free to leave at any time" (Flannino: H. 67, 106), none of them asked to leave the precinct after they were interviewed (Flannino: H. 81-82). Detective Flannino" [a]bsolutely [did] not" do or say "anything that suggested to them that they weren't free to leave." (Flannino: H. 82.) "The three parties . . . never left . . . the precinct, because at that point they were periodically being spoken to or interviewed." (Flannino: H. 24.)

During their time in the precinct, Maldonado, Wessler, and Perez "were all separate in various corners of the office." (Flannino: H. 22, 100.) The individuals were kept separated because the officers "didn't want any of the parties talking to each other to possibly come up with a story." (Flannino: H. 100.) During the course of the day, when Maldonado and Perez would try to speak to each other or blow kisses to each other, the police "would ask [them] just to stop. But . . . they did make attempts to talk, communicate. . . . They didn't have any on going or large standing conversation with each other." (Flannino: H. 135.) However, Detective Flannino acknowledged that he would not have been aware of any conversation that took place while he was in the interview room with Wessler (Flannino: H. 135), but "to the best of [his] knowledge" no conversation took place "between either Harvey Wessler [and] Charles Maldonado, or Maylene Perez and Charles Maldonado." (Flannino: H. 69.)

Maldonado's First Statement: 1:05 p.m. ⁴

4 Prior to speaking to Maldonado, Detective Flannino spoke to Perez at 12:20 p.m. (See pages 12-13 below.)

Around 1:05 p.m., Detective Flannino spoke to Maldonado at the precinct "within the Anti-crime office, which is located right off [the] Detective Squad office." (Flannino: H. 17.) Detective Flannino did not "advise him of . . . the Miranda Warnings prior to this . . . initial interview," which lasted "fifteen, twenty minutes or so." (Flannino: H. 18, 21-22, 46.) According to Detective Flannino, at that time, Maldonado was not "in custody in any way," not "restrained or handcuffed," and was not "a suspect in the case at that time." (Flannino: H. 18.)

During this interview, Maldonado stated that he was "raised on and off by Mr. Wessler for the last fifteen years, [a]nd that for the past year or so he had been residing there at 3333 Henry Hudson Parkway with Mr. Wessler." (Flannino: H. 18-19, 74.) Wessler "had an approximate fifteen year relationship" with Maldonado's mother. (Flannino: H. 19, 74.) Padilla was "his mother's best friend, and in fact introduced Ms. Padilla to Mr. Wessler," who "was helping her out." (Flannino: H. 19, 74.) Maldonado "referred to Ms. Padilla as an aunt" and stated that "at the time he got along very well with" her and that she "used to babysit him." (Flannino: H. 19-20, 74.)

The night before Padilla was killed, Maldonado and Perez "had stayed up late watching television" and "Harvey [Wessler] was awake in his bedroom." (Flannino: H. 20.) Around midnight, Maldonado went to the bathroom and "Ms. Padilla began banging on the bathroom door calling out for . . . Mr. Wessler." (Flannino: H. 20, 74-75.) As Padilla "entered the bathroom, then exited it . . . [Maldonado] noticed she was wearing a black pouch," and Maldonado "closed the door behind her." (Flannino: H. 20-21, 75.) Maldonado remained in the bathroom for "approximately five or six minutes . . ." (Flannino: H. 21.) "After [Maldonado] left the bathroom, Harvey Wessler went back to bed . . . [and] Linda [Padilla] left." (Flannino: H. 21, 75.) Maldonado also told Detective Flannino that "he remembered locking the front door after leaving . . . the bathroom, and at the time Mr. Wessler began yelling at him." (H. 21, 75.) Maldonado "laid down with Maylene Perez to watch T.V. and he fell asleep." (Flannino: H. 21.) Maldonado stated that "throughout the evening he smoked four blunt cigarettes . . . [which] were cigars that were filled with marijuana and crack." (Flannino: H. 20.) The blunts "knocked him out and he didn't wake up until the police . . . entered and woke him and Ms. Perez." (Flannino: H. 21.) Maldonado's Second Statement: 9:50 p.m. ⁵

5 After Maldonado's 1:05 p.m. statement and before his 9:50 p.m. statement, Detective Flannino interviewed Wessler at 1:45 p.m., Perez at 3:35 p.m., and Wessler at 5:25 p.m. (See pages 13-15 below.) In addition, at around 7p.m., Wessler left the precinct. (See pages 15-16 below.)

Between the conclusion of Maldonado's first interview around 1:25 p.m. (Flannino: H. 22, 46) and his second interview at 9:50 p.m., Maldonado ate food from McDonald's and "was sitting down falling asleep in the chair that he was sitting in." (Flannino: H. 23-24, 26, 83-84.) Maldonado" [a]bsolutely" was allowed to sleep and was not "questioned further by anyone between 1:05 and 9:50." (Flannino: H. 26-27.) Detective Flannino decided to interview Maldonado again at 9:50 p.m.; "[a]t that point it was just a matter of talking to him again to go over what was previously discussed." (Flannino: H. 108.) Maldonado was not advised of his Miranda rights prior to the second interview, as he was not "in custody" and was "free to leave." (Flannino: H. 27.)

During this second interview,

[Maldonado] explained that Linda [Padilla] and Harvey, Mr. Wessler, were arguing. That she was attempting to leave the apartment. He then saw Harvey, Mr. Wessler, choking and shaking Linda . . . from behind while the two of them were facing the front door of the apartment. Mr. Maldonado explained that he noticed a string on the floor, possibly from Linda using a needle. . . . He then saw Linda's feet being dragged away. And Harvey was saying that let me get a piece, that he wanted sex. This was all taking place as Mr. Maldonado was walking from the bathroom into the living room?. At that point, there came a lull in the interview. Moments later, Mr. Maldonado explained that [Maldonado] had kicked her, meaning Ms. Padilla . . . and that [Maldonado] threw her, Ms. Padilla, out the door. Then at that point he just stopped talking on his own accord.

(Flannino: H. 28-29; see also Flannino: H. 114.)⁶

6 At the hearing on August 1, 1996, Detective Flannino testified that at no point prior to Maldonado's second statement did Flannino have "any indication that any violence had been directed at Ms. Padilla," and Flannino did not have "any information about how she had died." (H. 29-30.) This second statement by Maldonado "was the first time any form of violence was actually taking shape." (Flannino: H. 115-16.) However, the State recalled Detective Flannino on August 5, 1996 to testify that at 10:20 a.m. at the crime scene, the Medical Examiner informed Flannino that Padilla had died as a result of strangulation by use of a white shoelace. The detective stated that on his way home from testifying on August 1, 1996, he was troubled because "common sense dictated that I should have realized" Ms. Padilla was strangled. (Flannino: H. 141-42.) He reviewed his notes once he arrived home and said "it was just an oversight while testifying and . . . apologize[d] for that mistake." (Flannino: H. 142.) The detective stated that he was unable to provide this testimony when first called due to "nervousness" or "just unfortunately not remembering." (Flannino: H. 142.)

Detective Flannino testified that he "absolutely [did] not" do "anything at all to induce Mr. Maldonado . . . to suddenly start talking about this crime and to implicate Mr. Wessler." (Flannino: H. 117.) Specifically, the detective denied pressuring Maldonado or telling Maldonado that he or Perez would be arrested if he did not tell the police what happened. (Flannino: H. 117.) According to Detective Flannino, although Maldonado stopped talking, he did not "indicate in any way by words that he wanted to invoke his right to remain silent, that he had nothing else to say . . ." and did not "ask for an attorney at that point." (Flannino: H. 30.) Detective Flannino gave Maldonado "a couple of minutes to relax and possibly regroup or whatever, he was left alone." (Flannino: H. 31, 119.)

Maldonado's Third Statement: 10:05 p.m.

"[A]bout five or ten" minutes after Maldonado's second statement (Flannino: H. 31, 119), Detective Flannino returned to the interview room and "that is when [Maldonado] started talking again" (Flannino: H. 31, 118). Detective Flannino "sat down with him, asked him if he wanted to continue . . ." and "the interview continued again on his own accord. There was no provoking, nothing intimidating. . . ." (Flannino: H. 32, 119.) Again, Maldonado was not given Miranda warnings, because, according to Detective Flannino, he was not under arrest and had not been restrained or handcuffed in any way. (Flannino: H. 31.) At 10:05, Maldonado

explained that at approximately 4:00 a.m. while Maylene Perez, his girlfriend, was high and asleep that Harvey, Mr. Wessler, was choking Linda as she was trying to leave . . . [f]acing away from Mr. Maldonado. He explained that Harvey wanted sex and that . . . Mr. Wessler choked her. . . . Mr. Maldonado was high on marijuana but that he knew what he was doing . . . Harvey strangled her, picked her up by the string. He then explained that Harvey grabbed the string, tied two knots around her neck. . . . Mr. Maldonado then grabbed her, Ms. Padilla, by the legs with Harvey dra[gg]ing her by the white string. They both dragged her to the service elevator. He went back inside the apartment and Harvey . . . went downstairs with the body.

(Flannino: H. 32-33; see also Flannino: H. 120-21.) "[A]t that point [Maldonado] just stopped on his own accord" and there was a break in the interview. (Flannino: H. 33.)

Even though Maldonado had admitted that he helped Wessler remove Padilla's body from the apartment, Detective Flannino did not read Maldonado his Miranda rights because the police were "kind of calling his bluff a little bit . . . to see if . . . what he was actually saying was the actual truth, or if he was just basically giving like a false facade." (Flannino: H. 121.) Detective Flannino testified that "each progressive interview kept on getting more and more. So it was just a matter of just finally calling his bluff or whatever." (Flannino: H. 122.)

Maldonado's Fourth Statement: 11:50 p.m.

After the third interview, Maldonado and Perez both sat in the Detective Squad office, neither one indicating that they wanted to leave. (Flannino: H. 122-23.) At 11:50 p.m., "the interview began again." (Flannino: H. 33-34). Detective Flannino was "playing devil's advocate in [his] own mind . . . [b]y not totally believing what [Maldonado] was saying." (Flannino: H. 124.) Detective Flannino communicated his doubts about Maldonado's statements "[j]ust by continuing talking to him," although the detective "may have said" "[tjhat's a lie." (Flannino: H. 124.) Maldonado "repeated that Harvey had choked Ms. Padilla and dragged her by the string. Minutes later, literally minutes later, [Maldonado] explained that he would tell the truth of what really happened." (Flannino: H. 34, 125.)

"At that point the interview ceased . . . [and Maldonado] was read hisMiranda rights via a card." (Flannino: H. 34.) Maldonado read and "signed and dated the actual Miranda card." (Flannino: H. 34: see also id. at 35-38, 125-26.) Maldonado "responded in the affirmative" each time the detective asked him if understood the Miranda rights being explained to him. (Flannino: H. 37-38, 126.) Maldonado also read and signed the notes Detective Flannino took during the course of this fourth interview. (Flannino: H. 38-39, 41-42.)

Reading from these signed notes, Detective Flannino testified about Maldonado's post-Miranda statements:

[Maldonado] explain[ed] that he always bothered Linda, Ms. Padilla. That he was always picking on her because he felt that it was because of her that his mother was gone . . . [Maldonado] described the mother was found lying in the street dead. She had nothing. He explained . . . numerous times that Ms. Padilla would call him a fagot [sic] or a pato in Spanish. He explained [that] about 4:00 o'clock in the morning that while he was inside the bathroom while he was on the toilet, Linda began knocking at the door. She wanted to get in saying that [her] shit was in the bathroom. Let me in. Let me get it. She began to yell, wanting Harvey to open the door. Michael, Mr. Maldonado, then opened the door. And Linda entered and got her drugs from under the sink. As she left the bathroom, Mr. Maldonado kicked the door closed. Striking the door against the back of her foot. As she left the apartment, she threatened that she was going to get her brother after him. She was saying that her brother was going to kill him, meaning Mr. Maldonado. While Ms. Padilla was by the front door, with Maylene Perez lying down in the living room, Harvey was in his bedroom. Mr. Maldonado started to choke Linda around her neck with his hands until she fell unconscious. Mr. Maldonado then removed the white shoe lace from around her left bicep . . . placed it around Ms. Padilla's neck. He loosened the knot from her arm and wrapped it around her neck and placed another knot around her. Linda was still unconscious. Michael [Maldonado] dragged her alone by her arm to the freight elevator. Mr. Maldonado then took her downstairs to the basement and threw her in a garbage compactor. He took the freight elevator back up stairs and with the front door unlocked, [he] entered the apartment and smoked one more blunt. He did this in the living room. He explained that he couldn't fall asleep, but eventually he did fall asleep on the sofa.

(Flannino: H. 42-44; accord H. 127-29.) Detective Flannino read Maldonado's confession "back to him basically the way it was here. He [Maldonado] then looked it over. He signed, dated it, 2/19/94 at 12:30 a.m." (Flannino: H. 44, 129.) Maldonado then agreed "to go on videotape and speak to an assistant district attorney in connection with the case." (Flannino: H. 45.)

Maldonado's Fifth Statement: 2:00 a.m.

Detective Flannino was present when Assistant District Attorney Jeffrey Schwartz took Maldonado's statement on videotape (Flannino: H. 45), which the court noted began at "almost 2 o'clock in the morning" (H. 134). Although Maldonado was no longer free to leave once he signed and dated his fourth, written statement (Flannino: H. 130-31), Maldonado "was finally arrested after the video statement was made" (Flannino: H. 132).

Detective Flannino testified that the first four interviews with Maldonado — at 1:05, 9:50, 10:05, and 11:50 p.m. — each "lasted probably for more than twenty minutes, fifteen, twenty minutes." (Flannino: H. 46.) The remainder of the time, Maldonado was "in and out, sleeping, and . . . dozing off. . . . He wasn't just sitting up right in a chair for those ten, twelve hours." (Flannino: H. 117-18.) During the "approximately" eleven hours that Maldonado was in the precinct, Maldonado never asked to leave, was never given any indication that he could not leave, and "could have left at any time." (H. 106.) Detective Flannino testified that it "was probably explained to" Maldonado that he was free to leave the precinct. (Flannino: H. 119.)

Although Maldonado was "[i]nitially . . . a little slow or slurred" when he first woke up, this was the only time during the day when Maldonado "appear[ed] . . . to be under the influence of drugs that he had indicated that he had smoked." (Flannino: H. 39-40). During the second interview, which took place around 1:00 p.m., "[t]here was never any problem communicating or explaining anything" to Maldonado. (Flannino: H. 40.) "[T]o [Detective Flannino's] knowledge [Maldonado had not] been permitted to have anything to drink or partake of any drugs" from the time Maldonado arrived at the precinct until he received hisMiranda warnings at 11:50. (Flannino: H. 40.) Detective Flannino testified that at the time he read Maldonado the Miranda warnings, Maldonado "appeared to be a little fatigued. Other than that, he was coherent. He understood everything that was being explained at the time." (Flannino: H. 41.)

Detective Flannino's Interviews with Maylene Perez

After Detective Flannino arrived at the precinct on February 18, 1994, his first interview of the day was with Maylene Perez at about 12:20 p.m. (Flannino: H. 72-73). Ms. Perez stated that "at about 4 o'clock that morning, Mr. Wessler was asleep, and Mr. Maldonado went to the bathroom." (Flannino: H. 72.) Padilla "began to bang on the bathroom door and scream. She was yelling out to Harvey [Wessler] that I left my shit [drugs] in there, tell Michael [Maldonado] to get out." (Flannino: H. 72.) "Harvey got up, told Michael to get out." (Flannino: H. 72-73.) After removing her things from the bathroom, Padilla "then threatened Mr. Maldonado about her brother's coming back to get him. Then after that she left?. Harvey and Mr. Maldonado argued." (Flannino: H. 73.)

Detective Flannino interviewed Perez a second time at 3:35 p.m. (Flannino: H. 80-81, 82, 84.) Perez told the detective that on the previous day, Wessler took her to the hospital for a sonogram while Maldonado and Padilla remained in the apartment. (Flannino: H. 84-85.) When she returned to the apartment, Padilla was "sound asleep." (Flannino: H. 85.) In the evening, Wessler and Padilla "left to buy drugs for" Padilla. (Flannino:H. 85.) When they returned, Wessler, Maldonado, and Perez left to take Perez's sister home and went to McDonald's. (Flannino: H. 85.) Later, Wessler, Perez, and Padilla all did the laundry downstairs. (Flannino: H. 85.) Perez returned to the apartment around 9:30 p.m. (Flannino: H. 85-86.) Padilla returned to the apartment around 1:00 a.m. with the laundry and left again. (Flannino: H. 86.) Perez said that around 4:00 a.m., Padilla "returned to the apartment and she went straight to the bathroom. . . . She closed the door then exited and then entered . . . the closet by the kitchen. . . . [W]hen she was in the closet, Mr. Maldonado then entered the bathroom." (Flannino: H. 86.) Padilla then "began yelling" for Maldonado to get out of the bathroom; Wessler then "got up, [and] banged on the door." (Flannino: H. 87.) When Maldonado opened the door, "Ms. Padilla entered, got what she wanted and she left." (Flannino: H. 87.) Perez told Detective Flannino that as Padilla left the bathroom, Maldonado "kicked the door, striking Linda in the back of the foot." (Flannino: H. 87.) Padilla "threatened" Maldonado "with her brother." (Flannino: H. 87.) Perez stated that Padilla left the apartment wearing the black waist pouch. (Flannino: H. 87.) Maldonado locked the door, then unlocked it after Wessler yelled at him. (Flannino: H. 87.) After the conclusion of the 3:35 p.m. interview, Detective Flannino did not speak with Perez again. (Flannino: H. 107.)

According to Flannino, Perez was asked "[b]y the district attorney who showed up if she would be willing to make a steno statement . . . she agreed to make it, and . . . remained around long enough to make the steno statement." (Flannino: H. 134-35.) She left the precinct "after . . . Mr. Maldonado's [videotaped] statement." (Flannino: H. 67.)

Detective Flannino's Interviews with Harvey Wessler

Detective Flannino interviewed Harvey Wessler at 1:45 p.m. (Flannino: H. 76) and again at 5:25 p.m. (Flannino: H. 25). At 1:45, Wessler explained that he met Padilla thirteen or fourteen years ago through "a friend," Maria Martinez.⁷ (Flannino: H. 76). When he invited Padilla to live in his apartment about two or three months ago, Ms. Martinez left and then Padilla "shared his bed." (Flannino: H. 76). Wessler told Detective Flannino that he and Padilla "spent the previous day together at his work." (Flannino: H. 76). After work, he went to Crotona Avenue and East 183rd Street to purchase heroin. (Flannino: H. 76-77.) Then, he "went to McDonald's" and "returned home around 8 P.M." (Flannino: H. 77.) At "approximately 10 o'clock," Wessler and Padilla "went downstairs to do the wash," Wessler returned to the apartment alone and fell asleep, leaving Padilla downstairs. (Flannino: H. 77).

7 Maria Martinez was Maldonado's mother. (Perez: H. 165.)

"[A]approximately 4:15 in the morning, [Wessler] awoke with Miss Padilla banging on the door [saying] I want to get my shit. [Maldonado] opened the door, Linda [Padilla] entered, went to the sink of the bathroom." (Flannino: H. 77.) Wessler further stated that "Miss Padilla argued with [Maldonado] and threatened him with her brothers, and she left." (Flannino: H. 78.) Wessler "began arguing with Michael, Mr. Maldonado, about locking the door, and the condition of the apartment." (Flannino: H. 78.) "Mr. Wessler then unlocked the front door and he went to sleep." (Flannino: H. 78.) Wessler woke up at "about 8:58" a.m. and found Padilla's "black waist pouch beside her side of the bed." (Flannino: H. 78.) Because the front door was locked again and Padilla's house keys were on the dining room table with The New York Times. Wessler thought Padilla had spent the night at his contracting business. (Flannino: H. 78-79.) Wessler "packed up all of her belongings inside his attache case, and then he left for work until the officers approached him in the lobby." (Flannino: H. 79.)

Detective Flannino interviewed Wessler again at about 5:25 p.m. for "fifteen or twenty" minutes. (Flannino: H. 90, 92.) The detective told Wessler that Perez's account of the previous day differed from his. (Flannino: H. 91.) "At this point, . . . [Wessler] recanted the story, he explained that Linda Padilla was not with him at work. And he explained that he forgot. He explained that she stayed in bed that day, because he was unable to wake . . . her. He specified that only he and Linda did the laundry that evening . . . [a]nd that Maylene Perez was never involved, even though Ms. Perez did say she was one of the three." (Flannino: H. 91.)

"A couple of hours after that last interview" (Flannino: H. 25-26) at "approximately 7, 7:30 in the evening" (Flannino: H. 67, 92) "Mr. Wessler chose to leave the precinct" and "was . . . permitted to do so" (Flannino: H. 25-26). Wessler "asked if there would be any problem with him leaving," saying he had "been there long enough" and "enough is enough." (Flannino: H. 93-94, 96.)

Someone who "identified himself as an attorney" and "friend of Mr. Wessler's," but did not say that he was representing Wessler, had called the precinct and spoken to Wessler "[a]t least two times" during the afternoon. (Flannino: H. 93-95.) Wessler asked if he could leave while he was sitting in the Squad Office, where Perez and Maldonado were also sitting. (Flannino:H. 103-04.) Maldonado did not ask to leave with Wessler. (Flannino: H. 104.) Detective Flannino testified that "[a]t that time, [Maldonado] may have been sleeping. He kept on conking out. But he was right in the same room when Mr. Wessler decided to leave on his own accord." (Flannino: H. 104.) Wessler was allowed to leave. (Flannino: H. 95-96, 103.)

Maylene Perez's Hearing Testimony For The Defense

Maldonado's girlfriend, Maylene Perez, testified for Maldonado at the suppression hearing. (See H. 163.) On the day of the precinct interviews, Perez was fifteen years old and "was nine months pregnant . . . had three days left to give birth and . . . had asthma." (Perez: H. 168.) Perez "was told" that she "had to go" to the precinct — "they didn't give [her] a choice." (Perez: H. 166-67.) She conceded, however, that she, Maldonado, and Wessler were not handcuffed in the police car. (Perez: H. 178.)

Perez testified that she when she first arrived at the precinct, she did not know what happened to Padilla, and only learned about Padilla's death from the officers a half-hour later. (Perez: H. 180.) Perez later testified, however, that Wessler told her about Padilla's death when Perez, Maldonado, and Wessler left the apartment building to go to the precinct. (Perez: H. 189.)

Perez told the police that Michael had an argument with Padilla the night before "over a dollar he thought she took from him" and then because Padilla did not "want to get out of the bathroom." (Perez: H. 181, 182.) Although Perez "asked three times" to call her mother, the police told her that she "couldn't talk to [her] mother until [she] finished answering all their questions." (Perez: H. 168, 183.) The police treated her "terribly" — "screaming at [her] if [she] didn't answer any of their questions, they made [her] get hysterical." (Perez: H. 169.) According to Perez, the officers showed her photographs of Padilla in the trash compactor and said: "[L]ook what kind of man I have. Look what he can do to me. Do I want a man like that in my life or do I want to have a man like that behind bars." (Perez: H. 171.)

Perez testified that: the officers "told me that if I didn't answer the questions and I didn't tell them who did it, when I gave birth to my child, they [were] going to take the baby away from me right there." (Perez: H. 169, 182-83, 195.) According to Perez, she told Maldonado about this statement around 7p.m., "[w]hen they brought me back out to the front and they asked my name and address and my phone number" (Perez: H. 170, 182, 184). She testified that Maldonado "was sitting in a seat next to me and I was standing and he asked me why was I crying and I had explained to him that the lady cop told me that if I didn't tell her who did it, when I gave birth to my child, she was going to take him away or if not, I was going to get locked up. . . . Michael [Maldonado] started crying and they took him back in because she heard me tell him that." (Perez: H. 170.) However, Perez later testified that the female officer removed her, not Maldonado, from the room when she saw them talking. (Perez: H. 194-95.)⁸ When Perez next saw Maldonado, he had made a videotaped statement to the police, "because he didn't want them to take [her] baby away." (Perez: H. 176.)

8 Also, Perez admitted that she gave the officers her mother's address as her own, even though she was living with Maldonado at the time. (Perez: H. 185.)

Perez testified that she was never told that she could leave the precinct. (Perez: H. 172.) She learned that Wessler had left the precinct when the officers told her around 8 p.m. that "[t]hey had let him go." (Perez: H. 186.) She then said that she also wanted to leave, but the officers "told [her] they weren't finished with [her] yet." (Perez: H. 187.) She testified that she was kept "[i]n a room all the way to the back" and that Michael "was kept in the front area. . . . locked in a room at the front." (Perez: H. 172.) "About every half an hour" Detective Flannino and a female officer "would come in and ask [her] the same thing over and over." (Perez: H. 173.) She was given nothing to eat "until nighttime," around 11:30 to midnight when "[t]he officer" brought her a "hamburger and french fries" but no drinks. (Perez: H. 173-75.) According to Perez, in the 18 hours between 11 a.m when she arrived at the precinct and 5 a.m. when the police brought her home, she never had the opportunity to use the bathroom — even though she was nine months pregnant. (Perez: H. 175, 184.) Perez also testified that she never saw Maldonado napping or dozing in his chair at the precinct. (Perez H: 196-97.) Counsels' Arguments at the Close of the Suppression Hearing

At the conclusion of the suppression hearing, Maldonado's defense counsel argued that Maldonado's statement was involuntary due to psychological coercion. (H. 199, 202). Defense counsel argued that it was "patently incredible. . . . to believe that Michael Maldonado chose voluntarily to sit, according to Detective Flannino, in a chair for close to eighteen hours for no apparent reason." (H. 202.) Noting that Maldonado denied receiving food from McDonald's and Perez testified that she was not fed until around midnight, the defense argued that the detectives only claimed that Maldonado, Perez, and Wessler were fed in order to "go along with the drill [that] the police aren't holding him against his will for eighteen hours." (H. 203.)⁹ The refusal to feed Maldonado and Perez was therefore part of the "overall tenor of intimidation." (H. 203.) Counsel also derided Detective Flannino's "incredible explanation" for testifying on the first day of the hearing that he was unaware of Padilla's cause of death at the time he questioned Maldonado. (H. 200, 203-04.) Furthermore, despite the fact that Wessler recanted his first statement when confronted with Perez's version of the days events, the police did not arrest Wessler because "they long since made up their mind . . . that [Maldonado] was it"; the police kept "hammering" Maldonado until he incriminated himself. (H. 204-07, 216, 217.) Without any supporting evidence in the record, defense counsel argued that when Detective Flannino said they called Maldonado's "bluff," that meant "[t]hey started yelling at him. They started screaming at him. We don't believe you." (H. 215.) They kept "hammering" at Maldonado, and when that still did not work, defense counsel argued that to convince Maldonado to incriminate himself, the police threatened to take away Perez's baby, and then allowed Maldonado to see her crying and let her tell him about the threat — all "part of the psychological war that they were waging on Michael Maldonado." (H. 216.)¹⁰

9 Defense counsel noted that in his videotaped confession, Maldonado said he had not had anything to eat," [a]nd they said what about McDonald's? He said no. Even on the videotape he denied being fed." (H. 203.)

10 Defense counsel added: "They are threatening to take away her baby. [Maldonado] knows that because I frankly think it probably has been such a coincidence that when she refuses to testify with this threat they bring her out where she can have a conversation with Michael [Maldonado], and he can see her in tears, I am not so sure that wasn't part of the psychological war that they were waging on Michael Maldonado." (H. 216.) The judge responded that defense counsel was "doing a lot of hypothesizing." (H. 218.)

During defense counsel's arguments, the court sought clarification on the relevant standard for suppressing an involuntary confession. (H. 208-11, 218-20.) When the court first asked whether, "before [he] can suppress any statement, that it has to be the product of custodial interrogation," defense responded "no," that "[a]t this point I'm arguing the voluntariness," not custody. (H. 208.) Defense counsel continued:

[DEFENSECOUNSEL]: But you're addressing the Miranda issue [of custodial interrogation]. You're not addressing voluntariness. Because if the police Mirandized someone and then start smacking him until he confesses it is still an involuntary statement.

THE COURT: We are talking physical.

[DEFENSE COUNSEL]: Put aside physical but any sort of coercion if it overbears the will that by definition is an involuntary statement. Voluntariness is a separate issue. . . . [and] I am arguing Voluntariness.

(H. 210-11.) Defense counsel also argued Miranda as a separate ground:

[DEFENSE COUNSEL]: I submit as to the issue of voluntariness, that there is no way that the People can have satisfied you beyond a reasonable doubt that these confessions were voluntary beyond a reasonable doubt.

THE COURT: Yes, I know what you mean.

[DEFENSE COUNSEL]: Now, on the issue of Miranda, obviously the earlier statement was not Miranda and I submit that custody was right from the beginning and that would have been the perception of anyone in Michael Maldonado's position or [Maylene] Perez' position or Harvey Wessler's position kept there in a room hour after hour after hour I submit that it is clear that the earlier statements would have to fall just on Miranda grounds. The post Miranda statement I submit is, has to go on the Voluntariness issue. Obviously there is a Miranda card.

THE COURT: Wait, wait. . . . He gave him the Miranda warnings and then he wrote it all out and your client signed it.

[DEFENSE COUNSEL]: If there is anything following that, the reading of his Miranda rights and signing the Miranda card, obviously there is no Miranda issue. I am not disputing that my client was read his rights and signed the card, but I submit they were involuntary because of the psychological injuries that had been brought to bear the whole day. And if they were involuntary, Miranda is not a cure. You cannot cure a voluntariness issue by Miranda. Miranda cures the right to counsel issue. It cures the Fifth Amendment issue. It does not cure a voluntariness issue.

If you physically or psychologically coerce someone through a statement telling them they have a right to counsel, there is not a cure [for] that.

This issue is whether his will was over born by the conduct of the police officers and I submit that it was and I submit that the People have clearly not maintained their burden of proof that that was not the way this statement was elicited. THE COURT: Okay.

(H. 218-20.)

In response, the prosecution argued that Maldonado, Perez, and Wessler all went to the precinct voluntarily and were not restrained at any time. (H. 221.) The atmosphere in the precinct was not coercive, particularly given that Wessler was permitted to leave and did so "at a time when the defendant had reason to know it." (H. 222.) As to custody, the State likened the situation to People v. Centano, 76 N.Y.2d 837, 560 N.Y.S.2d 121 (1990), where "the defendant appeared at the precinct voluntarily eager to assist in investigating [the] death"; "[t]he questioning was investigative, not accusatory and . . . pretty much up until the time when Miranda was given this defendant was putting himself forth as a witness to the homicide; not as a perpetrator of the homicide"; "[t]he defendant was never handcuffed or physically restrained"; and "questioning was not continuous but was interrupted frequently." (H. 225-26.)

Defense counsel responded that "there was nothing in the record to suggest that [Maldonado] was eager to assist," given that "[h]e was awoken by a number of police officers out of sound sleep, told to go to the precinct and was kept there for 18 hours." (H. 227.) Defense counsel further argued that "when a police officer says that we went back in there to call his bluff; we were going to play devil's advocate with him, that is I think by definition what they mean when they say accusatory, not investigative." (H. 228.) As to the prosecutor's assertions that Wessler was permitted to leave the precinct, defense counsel noted Perez's testimony that all three individuals were not in the same room. (H. 228-29.) Further, unlike Maldonado and Perez, Wessler had a witness — the caller who claimed to be his attorney — to testify that Wessler was told if the police "don't want to arrest you they have to let you go." (H. 229.)

The Court's Ruling Denying the Suppression Motion

At the conclusion of arguments, the court denied Maldonado's motion to suppress. (H. 241.) The court found "that nobody was coerced under the circumstances" when Maldonado, Perez, and Wessler accompanied the police to the precinct the morning Padilla's body was discovered. (H. 232-33.) The court further found that "at the precinct all three individuals were placed in the detective squad office in different areas of the detective squad office so that they were not able to communicate with each other." (H. 233.) The judge credited Detective Flannino's testimony that "much much before" midnight, the police provided food from McDonald's to Maldonado, Perez, and Wessler. (H. 235-36.) In contrast, given the discrepancies in Perez's testimony, the court discredited Perez's assertion that she was not allowed to call her relative, go to the bathroom, or drink water, or that she was not allowed to eat until midnight. (H. 236.)

The court denied the defendant's motion to suppress the statements as involuntarily, finding that Maldonado's statements were in no way psychologically coerced:

[T]he issue, number 1, is whether one can in anyway come to a conclusion that the statement made by the defendant was not voluntary. And clearly it was voluntary in the traditional sense that he was not physically [coerced.] There was no allegation here that there was physical coercion. So the allegation by [defense counsel] as I understand it is that because of the psychological pressure or mental pressure under which the defendant was placed the statement made by the defendant was the result of that kind of coercion.

I don't buy it. It seems to me and I so find that this testimony by the detective that for the most time the defendant was in the precinct he spent sleeping or dozing on and off is to a great extent corroborated, 1, by the fact that the defendant had been admittedly using drugs. 2. That he had gone to sleep rather late the night before. And also the fact that even when he was being video taped during his confession to the Assistant he kept on yawning.

. . . I was waiting for him to fall asleep during the time that the video was taking place. He seemed sleepy you know is the only way I can put it so I find this officer's testimony for the most part the defendant was dozing on and of[f] to be credible and I find and I reject the testimony of [Perez] when she testified that during all this time the 18 hours they simply sat on their respective chairs and that was it.

So I don't see that there is any basis whatsoever here to find that the defendant was in anyway coerced.

It seems to me that when, that what this detective did was simply to investigate the issue of what ever happened to the decedent and while it is true he knew that she had been the victim of a homicide, there was no reason that I can see . . . for him to have any problem at all to come to the conclusion that it was the defendant who had done it, no more than it was Mr. Wessler who had done it.

So, I don't understand why the focus would be on the defendant. It seems to me that the whole idea behind the investigation was simply to find out what happened, if these three individuals who knew what had really happened to Ms. Padilla and how she ended up dead in the compactor. And the detective did what he did and I don't see how that engages in any kind of illegal activity that would lead me to conclude that these statements have to be suppressed.

(H. 237-40.)

The court further denied Maldonado's motion to suppress on the ground that he made statements while in custody before receiving Miranda warnings:

Now, as far as the Miranda warnings are concerned, . . . I don't see that there should have been any indication whatsoever to the defendant that he was in custody. . . . [A]t no time was he handcuffed, at no time were any officers restricting his freedom of movement.

There may be some indication that he knew that Mr. Wessler had been permitted to leave the precinct and it seems to me that if you apply the test from People versus Yukl, [ 25 N.Y.2d 585, 307 N.Y.2d 857 (1969), cert. denied, 400 U.S. 851, 91 S.Ct. 78 (1970)], whether a reasonable person in the defendant's position [who] can be deemed innocent of any crime would reasonably come to the conclusion that he was not in custody and I see nothing of any significance that would lead me to conclude that at anytime the defendant believed that he was in custody and not permitted to leave.

(H. 240-41.) The court therefore denied the motion to suppress Maldonado's statements "in all respects." (H. 241.)

Trial. Verdict, and Sentence

Maldonado's written and videotaped statements were admitted during trial through the testimony of Detective Flannino. (Flannino: Tr. 151-56.) The defense did not present any evidence at trial. (See Ex. 2: State 1st Dep't Br. at 17.)

The jury found Maldonado guilty of second degree murder. (Tr. 605-07; Pet. ¶¶ 4, 6.) On September 5, 1996, the court sentenced Maldonado to twenty years to life imprisonment. (Pet. ¶¶ 2-3; Ex. 1: Maldonado 1st Dep't Br. at I5.) ¹¹ Maldonado's Direct State Appeal

11 Maldonado also was sentenced to a concurrent term of one and one-third to four years on his plea of guilty to first degree attempted assault of a court officer. See People v. Maldonado, 259 A.D.2d356, 356, 687 N.Y.S.2d 62, 62 (1st Dep't 1999). (See also Ex. 2: State 1st Dep't Br. at 17.)

In December 1998, represented by newly-appointed counsel (the Legal Aid Society), Maldonado appealed his conviction, arguing solely that his confessions violated Miranda, (See Ex. 1: Maldonado 1st Dep't Br. at 16-23.)

On March 18, 1999, the First Department affirmed Maldonado's conviction:

The evidence supports the hearing court's determination that defendant's statements made prior to Miranda warnings were not the product of custodial interrogation, since a reasonable innocent person in defendant's position would not have thought that he was in custody. We conclude that it would have been unreasonable for defendant to assume that his admission to helping another person move the murder victim's body a slight distance rendered the interview custodial. Such an assumption would have been inconsistent with the noncoercive circumstances of the interview, including the fact that the police continued to treat defendant as a witness rather than a suspect even after he made this admission. In any event, were we to find these statements to be inadmissible, we would find that defendant's videotaped statement was attenuated as the result of a pronounced break in the interrogation.

People v. Maldonado, 259 A.D.2d 356, 356, 687 N.Y.S.2d 62, 63 (1st Dep't 1999) (citations omitted).

The New York Court of Appeals denied leave to appeal on July 6, 1999.People v. Maldonado, 93 N.Y.2d 1004, 695 N.Y.S.2d 750 (1999).

Maldonado's First Coram Nobis Petition to the First Department

On June 21, 2000, represented by his current counsel, Maldonado filed his first coram nobis petition in the First Department, arguing that he

was denied the effective assistance of appellate counsel because of counsel's failure to raise issues on direct appeal that would have likely resulted in reversal or modification; specifically, whether the hearing court failed to apply the correct principles of law in determining if defendant's confession was voluntary, and whether defendant's statement was indeed voluntarily given.

(See, e.g., Ex. 6: Gardner 6/21/00 Coram Nobis Aff. ¶ 5.)

On January 18, 2001, the First Department denied Maldonado's coram nobis petition without opinion. People v. Maldonado, 279 A.D.2d 948, 721 N.Y.S.2d 855 (1st Dep't 2001). At that time, no appeal to the New York Court of Appeals was available under New York law.

Maldonado's Federal Habeas Corpus Petition

Maldonado's federal habeas petition, timely filed on January 31, 2001 raises several issues concerning his confessions — that the confessions were "coerced" and "involuntary," and he was denied a proper pretrial hearing as to his confessions. (Pet. ¶¶ 12(A)-(D).) Maldonado also argues that the failure to raise certain of these issues on direct appeal should be excused because of ineffective assistance of appellate counsel. (Pet. ¶ 13.) (See generally Dkt. No. 7: Maldonado Reply Br. at 5-26.)

Maldonado's Second Coram Nobis Petition to the First Department

This Court advised Maldonado that one of his habeas claims appeared to be unexhausted — specifically, the claim that "appellate counsel was ineffective for failing to argue that petitioner's post-Miranda statements were inadmissible 'because the extreme coercive nature of the interrogation had not ceased due to the Miranda warning [and so petitioner] did not knowingly and voluntarily waive those rights.'" (Dkt No. 10: 5/28/02 Order, quoting Dkt. No. 7: Maldonado Reply Br. at 22.) The Court ordered Maldonado to advise "whether he (a) wishe[d] to withdraw that [ineffective assistance] claim . . . to allow the Court to rule on the remaining claims, or (b) wishe[d] his federal habeas petition to be placed on the suspense calendar to allow petitioner to bring a further coram nobis petition in the First Department." (5/28/02 Order.) Maldonado chose the latter option (see Dkt. No. 13:6/11/02 Letter) and filed a second coram nobis petition in the First Department on July 8, 2002 (Dkt. No. 22: Gardner 10/7/03 Aff. ¶ 3 Ex. 3: Maldonado 2d Coram Nobis Petition.)

Maldonado's second coram nobis petition asserted that his appellate counsel was ineffective for failing to argue on direct appeal that Maldonado's "post-Miranda statements were inadmissible because the extreme coercive nature of the interrogation had not ceased due to theMiranda warnings, and so a voluntary and knowing waiver of those rights did not occur." (Dkt. No. 22: Gardner 10/7/03 Aff. Ex. 3: Maldonado 7/9/02 2d Coram Nobis Br. at 2.) In opposition, the State argued that Maldonado's petition should be denied because "(1) he faile[d] to present any new law or facts that were not contemplated by [the First Department] in rejecting his prior petition, (2) the issue defendant now claims should have been raised was unpreserved for appellate review, and (3) the issue would not have resulted in a greater likelihood of reversal or modification of the judgment." (State 11/22/02 2d Coram Nobis Br. at 4.)

On May 22, 2003, the First Department denied Maldonado's second coram nobis application without opinion. People v. Maldonado, No. M-5766, 2003 N.Y. App. Div. LEXIS 6062 at *1 (1st Dep't May 22, 2003). (See also Dkt No. 17: 6/2/02 Letter, Attached 5/22/03 Coram Nobis Order.) The New York Court of Appeals denied leave to appeal on September 25, 2003. (Dkt. No. 17: Gardner 10/7/03 Aff. Ex. 1: 9/25/03 N.Y. Ct. App. Order.) ANALYSIS I. THE AEDPA REVIEW STANDARD¹²

12 For additional decisions by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *12-14 (S.D.N.Y. Oct. 22, 2003) (Peck, MJ.);Wilder v. Herbert, 03 Civ. 0397, 2003 WL 22219929 at *4-6 (S.D.N.Y. Sept. 26, 2003) (Peck, MJ.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *14 (S.D.N.Y. Sept. 10, 2003) (Peck, MJ.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *7-9 (S.D.N.Y. July 29, 2003) (Peck, M J.): Skinner v. Duncan, Ol Civ. 6656, 2003 WL 21386032 *11-13 (S.D.N.Y. June 17, 2003) (Peck, MJ.); Quinones v. Miller, Ol Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wjlson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *5-6 (S.D.N.Y. May 7, 2003) (Peck, M. J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, MJ.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M. J.);Djckens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, MJ.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, DJ.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, MJ.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, MJ.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M. J.);Green v. Herbert, Ol Civ. 11881, 2002 WL1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, MJ.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at * 10-11 (S.D.N.Y. July 12, 2002) (Peck, MJ.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, MJ.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, DJ.); Jamison v. Berbarv, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, MJ.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, MJ.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, MJ.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, MJ.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, MJ.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M. J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, MJ.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, MJ.),report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, DJ.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, MJ.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, MJ.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, DJ.), aff'd, 303 F.3d 411 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, MJ.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Maldonado is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners."Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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)(1)-(2).¹³

13 See also. e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003); Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019.122 S.Ct. 1611 (2002)): Christie v. Hollins, 01 Civ. 11605.2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, DJ.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a beavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at I5I9.¹⁴ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at I523.¹⁵ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord. e.g., DelValle v. Armstrong, 306 F.3d at 1200.

14 Accord. e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000): Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000). cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001): Clark v. Stinson, 214 F.3d 315. 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

15 Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003);Lockver v. Andrade, 123 S.Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); Parsad v. Greiner, 337 F.3d at 181: DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court 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.

Williams v. Taylor, 529 U.S. at 405-06, 120 So. Ct. at 1519-20¹⁶

16 Accord. e.g., Price v. Vincent, 123 S.Ct. 1848, 1853 (2003);Lockyer v, Andrade, 123 S.Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135: Kennaugh v. Miller, 289 F.3d at 42: Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that" [u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.¹⁷ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. ¹⁸ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1521.¹⁹ "Objectively unreasonable" is different from "clear error." Lockyer v. Andrade, 123 S.Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).²⁰

17 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35: Parsad v. Greiner, 337 F.3d at 181.

18 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535: Price v. Vincent, 123 S.Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 360 (2002)); Lockver v. Andrade, 123 S.Ct. at 1175; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

19 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Price v. Vincent, 123 S.Ct. at 1853; Lockver v. Andrade, 123 S.Ct. at 1174-75;Woodford v. Visciotti, 537 U.S. at 25-27, 123 S.Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135: Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

20 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v. Hollins, 2003 WL 22299216 at *3.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed."Kennaugh v. Miller, 289 F.3d at 45.²¹

21 Accord, e.g., Tueros v. Greiner, 343 F.3d at 591; Yung v. Walker, 296 F.3d at 135. Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22: Norde v. Keane, 294 F.3d at 410: Aparicio v. Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDP A 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.

Sellan v. Kuhlman, 261 F.3d at 312; accord. e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81:Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Ezev. Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Add v. Bennett, 296 F.3d 58, 62 (2d Cir.),cert. denied, 537 U.S. 1093, 123 S.Ct. 694 (2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).²² "By its terms, § 2254(d) requires such deference respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).²³ Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

22 The Second Circuit "recognize[d] 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." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

23 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

Here, the First Department affirmed Maldonado's conviction on the merits, holding that the trial court properly admitted all of his statements. People v. Maldonado, 259 A.D.2d 356, 687 N.Y.S.2d 62 (1st Dep't 1999). The Court finds that Maldonado's first and second coram nobis petitions also were denied on the merits. See People v. Maldonado, 2003 N.Y. App. Div. LEXIS 6062 at *1 (1st Dep't May 22, 2003): People v. Maldonado, 279 A.D.2d 948, 721 N.Y.S.2d 855 (1st Dep't Jan. 18, 2001). Although the First Department did not provide an explanation for its decisions, neither Maldonado's coram nobis petitions nor the State's replies suggest any procedural ground on which the coram nobis petitions may have been denied.

Thus, the First Department's decisions on direct appeal and on both coram nobis petitions were on the merits and are entitled to AEDPA deference.

II. MALDONADO'S CLAIM THAT HIS MIRANDA RIGHTS WERE VIOLATED SHOULD BE DENIED

While not well drafted, Maldonado's habeas claims raise issues as to admissibility of his confessions under the interrelated but distinct issues of voluntariness and Miranda, As the Second Circuit has explained:

[Petitioner] argues that his confession should have been suppressed because it was involuntary and because it was obtained in violation of Miranda v. Arizona, These two claims are interrelated, but analytically distinct. If a defendant's confession was obtained by "'techniques and methods offensive to due process' or under circumstances in which the suspect clearly had no opportunity to exercise 'a free and unconstrained will,'" the statements are inadmissible under the Fifth Amendment. The prophylactic rule of Miranda sweeps more broadly than the Fifth Amendment itself, however, and requires the suppression of some confessions that, while perhaps not actually involuntary, were obtained in the presumptively coercive environment of police custody.

Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir. 1998) (citations omitted). Because Maldonado's Miranda claim was raised on direct appeal in state court, while his voluntariness claim was not exhausted in state court and must be analyzed via an ineffective assistance of appellate counsel claim, the Court turns first to the Miranda claim. A. Miranda v. Arizona: Background

Prior to Miranda, the Supreme Court utilized "due process jurisprudence . . . to exclude confessions that were obtained involuntarily." Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 2331 (2000)²⁴ Because of the "coercion inherent in custodial interrogation," the Supreme Court in its well-known decision in Miranda v. Arizona, 384 U.S. 436, 86 So. Ct. 1602 (1966), "laid down 'concrete constitutional guidelines for law enforcement agencies and courts to follow.'" Dickerson v. United States, 530 U.S. at 435, 120 S.Ct. at 2331 (quoting Miranda v. Arizona, 384 U.S. at 442, 86 S.Ct. at 1611).²⁵ As the Supreme Court summarized in Dickerson in reaffirming Miranda in 2000:

24 Accord, e.g., Legree v. Greiner, 00 Civ. 6680, 2001 WL 527423 at *5 (S.D.N.Y. May 17, 2001) (Peck, MJ.), report rec. adopted, 2001 WL 1231535 (S.D.N.Y. Oct. 16, 2001) (Cote, DJ.).

25 Accord, e.g., Legree v. Greiner, 2001 WL 527423 at *5.

Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a 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. at 435, 120 S.Ct. at 2331 (quotingMiranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630)²⁶ The"Miranda warnings" are familiar to everyone from watching television or movies: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States, 530 U.S. at 443. 120 So. Ct. at 2336.²⁷

26 Accord, e.g., Legree v. Greiner, 2001 WL 527423 at *6.

27 Accord, e.g., Legree v. Greiner, 2001 WL 527423 at *6.

It goes without saying that statements obtained in violation ofMiranda generally must be suppressed. See. e.g., Dickerson v. United States, 530 U.S. at 443-44, 120 S.Ct. at 2336 ("our subsequent cases have . . . reaffirm[ed] the [Miranda] decision's core ruling that unwarned statements may not be used as evidence in the prosecution's case in chief); Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 1297 (1985) ("When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief.").²⁸

28 See also, e.g., United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002) ("Miranda instructs generally that an uncounseled statement made by a defendant during custodial interrogation should be suppressed from use by the government in its case-in-chief unless the prosecution proves that the suspect voluntarily waived his right to counsel and privilege against self-incrimination."): United States v. Mathuria 148 F.3d 68, 69 (2d Cir. 1998): United States v. Morales, 788 F.2d 883, 885 (2d Cir. 1986) ("It is axiomatic that a statement obtained in violation of Miranda is ordinarily inadmissible at trial."); Legree v. Greiner, 2001 WL 527423 at *5-6.

"A suspect is entitled to Miranda warnings only if he or she is interrogated while 'in custody.'" Parsad v. Greiner, 337 F.3d 175.181 (2d Cir. 2003): accord. e.g., Stansbury v. California. 511 U.S. 318, 322, 114 S. Ct 1526, 1528 (1994) ("An officer's obligation to administer Miranda warnings attaches . . . 'only where there has been such a restriction on a person's freedom as to render him in custody.'") (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714 (1977)) ("Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody.'").²⁹

29 See also, e.g., United States v. Badmus, 325 F.3d 133, 138 (2d Cir. 2003) ("Miranda warnings must be given when a person is interrogated while 'in custody.'"); United States v. Mazzeo, No. 99-1223, 205 F.3d 1326 (table), 2000 WL 232032 at *1 (2d Cir. Jan. 21, 2000) ("A criminal suspect must be informed of his or her rights only when the suspect is subjected to custodial interrogation."); Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir. 1998) ("A suspect is entitled to Miranda warnings only if he or she is interrogated while 'in custody.'"); United States v. Kirsh, 54 F.3d 1062, 1067 (2d Cir.) ("Miranda warnings are not required unless law enforcement agents interrogate a person who is in custody."), cert. denied, 516 U.S. 927, 116 S.Ct. 330 (1995); Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *9 (S.D.N.Y. Feb. 20, 2002) ("[T]he provision of Miranda rights is not required unless the person being questioned is in custody."); Hurdle v. Hoke, 86 Civ. 8749, 1990 WL 52126 at *2 (S.D.N.Y. Apr. 17, 1990) (Wood, DJ.) (Where "[petitioner was not under custodial interrogation . . . no Miranda warnings were required."), aff'd, No. 90-2275, 930 F.2d 908 (table) (2d Cir. 1991).

"A court evaluating whether a person is in custody for Miranda purposes must consider 'the circumstances surrounding the interrogation; and . . . [whether] given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'" United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001) (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465 (1995)); accord. e.g., Parsad v. Greiner, 337 F.3d at 181-82.³⁰

30 See also. e.g., United States v. Badmus, 325 F.3d at 138; Nova v. Bartlett, 211 F.3d 705, 707 (2d Cir. 2000) (" [W]hether a reasonable person in [petitioner's] situation would have felt free to terminate the interrogation and leave [is] the ultimate 'in custody determination for purposes of Miranda,"): United States v. Mazzeo, 2000 WL 232032 at *1 ("The two-part test for determining whether a person is in custody is firmly established. Courts first consider the circumstances surrounding the interrogation, and then determine whether a reasonable person would have felt at liberty to end the interrogation and leave under those circumstances."); Tankleff v. Senkowski, 135 F.3d at 243 ("[C]ustody exists for Miranda purposes if a reasonable person in [the suspect's] position would 'have felt he or she was not at liberty to terminate the interrogation and leave.'") (quoting Thompson v. Keohane, 526 U.S. at 112, 116 S.Ct. at 465); United States v. Kirsh, 54 F.3d at 1067; United States v. Troche, 181 F. Supp.2d 340, 349 (S.D.N.Y. 2002).

The Second Circuit has explained:

"The test used in determining whether a defendant was in custody is an objective one that (a) asks whether a reasonable person would have understood herself to be subjected to restraints comparable to those associated with a formal arrest, and (b) focuses upon the presence or absence of affirmative indications that the defendant was not free to leave. An accused is in custody when, even in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave."

Tankleff v. Senkowski, 135 F.3d at 243-44 (quoting United States v. Kirsh, 54 F.3d at 1067). Determining whether the subject was in custody therefore "'depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.'" Vega v. Artuz, 2002 WL 252764 at *9 (quoting Stansbury v. California, 511 U.S. at 323, 114 S.Ct. at 1529). Factors relevant to the custody inquiry include: "whether a suspect is or is not told that [he or] she is free to leave; the location and atmosphere of the interrogation; the language and tone used by the police; whether the suspect is searched, frisked, or patted down; and the length of the interrogation." Tankleff v. Senkowski, 135 F.3d at 244 (citations omitted).³¹ The Second Circuit has held that "[t]o be considered 'in custody' a defendant must have 'understood himself to be subject to restraints comparable to those associated with a formal arrest.'" United States v. Remache. No. 99-1113.201 F.3d 433 (table), 1999 WL 1212535 at *1 (2d Cir. Dec. 15, 1999) (quoting United States v. Mitchell, 966 F.2d 92, 98 (2d Cir. 1992)), cert. denied, 529 U.S. 1080, 120 S.Ct. 1702 (2000). "An accused is in custody when, even 'in the absence of an actual arrest, law enforcement officials act or speak in a manner that conveys the message that they would not permit the accused to leave.'" United States v. Kirsh, 54 F.3d at 1067 (quotingCampaneria v. Reid, 891 F.2d 1014, 1021 n. 1 (2d Cir. 1989). cert denied, 499 U.S. 949, 111 S.Ct. 1149 (1991)); accord. e.g., United States v. Badmus, 325 F.3d at 138: see also. e.g., United States v. Mitchell, 966 F.2d at 98 (Custody inquiry "focuses upon the presence or absence of affirmative indications that the defendant was not free to leave.").

31 Accord. e.g., Vega v. Artuz, 2002 WL 252764 at * 10; United States v. Troche, 181 F. Supp.2d at 349.

The Supreme Court has "made it clear that Miranda warnings are not required simply because 'the questioning took place in a "coercive environment,"'" such as the police station. Cruz v. Miller, 255 F.3d 77, 81-82 (2d Cir. 2001) (quoting Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714 (Miranda warnings not required "simply because the questioning takes place in the station house"; suspect who came to police station voluntarily and questioned in a closed room not "in custody"):United States v. Rogers, 99 Cr. 710, 2000 WL 101235 at *12 (S.D.N.Y Jan. 27, 2000) ("In the context of determining whether an individual is in custody under the Fifth Amendment, the courts have long recognized that the setting of a police station or a police interrogation room, without more, is not so coercive as to preclude a reasonable person from feeling free to leave.") (citing Oregon v. Mathiason). aff'd, 225 F.3d 647 (2d Cir. 2000).

B. Maldonado Was Not "In Custody" Before His Miranda Warnings.

Before receiving Miranda warnings, Maldonado was questioned three times (at 1:05 p.m., 9:50 p.m. and 10:05 p.m.), made a partially incriminating statement at 10:05 p.m., and told police at 11:50 p.m. that he finally would tell them the truth. (See pages 5-10 above.) On direct appeal, Maldonado's appellate counsel argued that Maldonado was "in custody" for the purposes of Miranda at the point when Maldonado admitted that he had helped Harvey Wessler dispose of Padilla's body during the third interview at 10:05 p.m. (Ex. 1: Maldonado 1st Dep't Br. at 16, 19.) According to Maldonado's counsel: "Only someone who had completely taken leave of his senses could possibly imagine that the police would let him walk out of the stationhouse doors after making those admissions." (Id. at 19.)³² Maldonado's appellate counsel argued that Maldonado's Fifth Amendment rights were violated by the admission of his statement from the subsequent interview at 11:50 p.m. (M.) Furthermore, Maldonado's counsel argued, Maldonado's written statement should have been suppressed because there was "initially no break at all between the pre-and post-Miranda questioning" (id. at 22), and the videotaped statement should also have been suppressed "as the less than 1 1/2hours between it and the written confession was plainly insufficient under the [People v.] Chappie [, 38 N.Y.2d 112, 115, 378 N.Y.S.2d 682, 686 (1975)] test." (Maldonado 1st Dep't Br. at 22.)

32 Maldonado's habeas papers further argue:

It is difficult to fathom how after: (i) being segregated in the precinct, and, (ii) not being free to go to or even speak to Ms. Perez, and (iii) petitioner's 10:05 p.m. inculpatory statement regarding disposing of the victim, a reasonable person would have believed they were not in custody. In the 10:05 p.m. statement, after being with the police for over 13 hours, he admitted to helping Mr. Wessler dispose of the victim's body after she was strangled by Mr. Wessler. No reasonable person under these circumstances and after this inculpatory statement would believe the police would simply let them walk out the door.

(Dkt. No. 7: Maldonado Reply Br. at 24.)

It is difficult to fathom how after: (i) being segregated in the precinct, and, (ii) not being free to go to or even speak to Ms. Perez, and (iii) petitioner's 10:05 p.m. inculpatory statement regarding disposing of the victim, a reasonable person would have believed they were not in custody. In the 10:05 p.m. statement, after being with the police for over 13 hours, he admitted to helping Mr. Wessler dispose of the victim's body after she was strangled by Mr. Wessler. No reasonable person under these circumstances and after this inculpatory statement would believe the police would simply let them walk out the door.

The First Department held that the statements were admissible because Maldonado was not in custody prior to his Miranda warnings, even after he admitted to helping Wessler move Padilla's body:

The evidence supports the hearing court's determination that defendant's statements made prior to Miranda warnings were not the product of custodial interrogation, since a reasonable innocent person in defendant's position would not have thought that he was in custody. We conclude that it would have been unreasonable for defendant to assume that his admission to helping another person move the murder victim's body a slight distance rendered the interview custodial. Such an assumption would have been inconsistent with the noncoercive circumstances of the interview, including the fact that the police continued to treat defendant as a witness rather than a suspect even after he made this admission.

People v. Maldonado, 259 A.D.2d 356, 356, 687 N.Y.S.2d 62, 63 (1st Dep't 1999) (citations omitted).

Maldonado's habeas petition alleges that the First Department's determination that Maldonado was not in custody before he receivedMiranda warnings "was an unreasonable application of clearly established federal law, [and] it involved an unreasonable application of Supreme Court precedent." (Dkt. No. 7: Maldonado Reply Br. at 22.)

The Court disagrees. The First Department's determination that Maldonado was not in custody prior to being given Miranda warnings was not "contrary to, or involve 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).

Given the circumstances at the time of Maldonado's pre-Miranda statements at 1:05, 9:50, 10:05, and 11:50 p.m., the Court finds that a reasonable person in Maldonado's position would have felt that he or she was at liberty to terminate the interrogation and leave the precinct.See. e.g., United States v. Romaszko, 253 F.3d 757, 760 (2d Cir. 2001);see also cases cited at pages 39-41 nn. 30-31 above. First, Maldonado was not arrested at Wessler's apartment or told that he was required to go the police precinct; rather, the police asked him, Perez, and Wessler to accompany them. (Flannino: H. 15-16.) Maldonado agreed and voluntarily went to the precinct along with Perez and Wessler. (M.) Second, Maldonado was not handcuffed or restrained in any way on his way to the station house or at any point during the day. (Flannino: H. 15-16, 18, 31.)³³ Third, there is no evidence that Maldonado ever asked to leave the station or was told that he was not permitted to leave. (Flannino: H. 27, 106.) Fourth, Maldonado was present when Wessler asked and was permitted to leave the precinct. (Flannino: H. 103-05.) Fifth, the record shows that the total time that Maldonado was questioned by Detective Flannino was only about sixty to eighty minutes over the course of 13 hours.³⁴ (Flannino: H. 46.) Sixth, the detectives permitted Maldonado to sleep in his chair at the precinct and allowed him to eat food from McDonald's. (Flannino: H. 23-24, 26-27, 83-84, 117-18.) Seven, there is no evidence that the police questioned Maldonado in a hostile or aggressive manner. (Flannino: H. 117.)³⁵ All of these factors lead to the conclusion that Maldonado was not in custody. See. e.g., Maine v. Thibodeau, 475 U.S. 1144, 1146, 106 S.Ct. 1799, 1801 (1986) (Supreme Court held that defendant was not in custody where, inter alia, defendant "voluntarily accompanied the officers [in their police car and] never asked to leave. The police never told him that he was not free to leave, never used any physical restraint of any kind, never threatened him, never confronted him with any incriminating evidence."); Vega v. Artuz, 2002 WL 252764 at *10 (petitioner not in custody where he arrived at precinct with other family members, was not arrested, handcuffed, searched or frisked, and was briefly interviewed in a non-coercive manner, even though he was not explicitly informed he was free to leave); White v. Keane, 95 Civ. 10754, 1996 WL 527340 at *1 (S.D.N.Y. Sept. 16, 1996) (Petitioner who "voluntarily accompanied the police officer to the station, never indicated that he wanted to leave and was allowed to go unescorted to the bathroom" "was not in custody at the time statements were made. . . .Miranda warnings are not required 'simply because the questioning takes place in a station house.'").³⁶

33 See. e.g., Hurdle v. Hoke, 86 Civ. 8749, 1990 WL 52126 at *2 (S.D.N.Y. Apr. 17, 1990) (Wood, DJ.) (Petitioner was not in custody at station house where "[tjhere was no evidence that petitioner, who was not then a suspect, went to the station house involuntarily or that he was held there against his will.").

34 Compare Wilson v. Walker, No. 00-CV5348, 2001 WL 1388299 at *3 (E.D.N.Y. Nov. 2, 2001) (Court did not need to determine whether petitioner was in custody, but given that "petitioner was questioned at the police station for nearly seven continuous hours, the Court is skeptical of the state courts' . . . conclusion] that [petitioner] was not in custody at the time he initially confessed.") (emphasis added).

35 Compare Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *11 (S.D.N.Y. Feb. 20, 2002) (not custody where detectives "expressed skepticism" about petitioner's story, and told him to tell the truth; "[t]elling a suspect not to lie is not so coercive that it amounts to custodial interrogation."), with United States v. Rogers, 99 Cr. 710.2000 WL101235 at * 14 (S.D.N.Y. Jan. 27, 2000) ("repeated, accusatory statements from two interrogating officers over the course of more than two hours" amounted to custody in totality of the circumstances), aff'd, 225 F.3d 647 (2d Cir. 2000).

36 Compare Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998) (pre-AEDPA; suspect was in custody after six-hour intermittent questioning when during "the last two hours, he had been subjected to increasingly hostile questioning at the police station, during which the detectives had accused him of showing insufficient grief, had said that his story was 'ridiculous' and 'absurd,' and had added that they simply 'could not accept' his explanations," then told him that the victim, his father, "had woken up from a coma and accused him of the attack."); United States v. Romaszko, 255 F.3d at 760-61 (Custody found where postal inspectors accused defendant of stealing money at beginning of interview, and defendant was told at least five times that she could not leave); United States v. Troche, 181 F. Supp.2d 340, 349 (S.D.N.Y. 2002) (Defendant was "in custody" after his vehicle was stopped and searched, advised that he "would have to accompany officers to the Customs office to obtain a receipt for the money seized from his car," patted down, handcuffed, and placed in a police vehicle, remained in an arrest processing area for several hours and "extensively debriefed."); United States v. Guzman, 11 F. Supp.2d 292, 296-97 (S.D.N.Y.) (Custody found where police decided to bring petitioner in to take his statement, then went to petitioner's home and told petitioner he would "have to come" with them to the station, and never told petitioner he did not have to come to the station or that he was free to leave. Petitioner was questioned by "a number of different officers throughout the night for more than twelve hours, and his interrogators repeatedly told him that they knew the answers he was giving were contradicted by facts known to the police . . . [and] was never free to move around the stationhouse unescorted."), aff'd, 152 F.3d 921 (2d Cir. 1998).

The issue, however, is not whether this Court would find custody on ade novo review of the issue. "Whether or not we would find custody on ade novo inquiry, we do not think the New York courts unreasonably applied clearly established Supreme Court law in concluding that [petitioner] was not in custody for purposes of Miranda." Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001). "In the instant case, both the trial court and the Appellate Division determined that petitioner was not in custody. Accordingly, with respect to this determination, we apply the deferential standard of review prescribed by the AEDPA." Parsad v. Greiner, 337 F.3d 175, 180 (2d Cir. 2003); See. e.g., Cruz v. Miller, 255 F.3d at 80; Vega v. Artuz, 2002 WL 252764 at * ³⁷ Under that standard, because of the "difficulty of determining 'custody for purposes of Miranda . . ., unless the facts clearly establish custody, a state court should be deemed to have made a reasonable application of clearly established Supreme Court law in concluding that custody for Miranda purposes was not shown." Cruz v. Miller, 255 F.3d at 85-86.

37 See also. e.g., Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 465 (1995) (pre-AEDPA; determination of "what were the circumstances surrounding the interrogation . . . is distinctly factual. State-court findings on these scene-and-action-setting questions attract a presumption of correctness under 28 U.S.C. § 2254(d).").

In this case, the trial court and First Department decisions that Maldonado was not in custody are not based on an unreasonable determination of the facts in light of the evidence presented at the suppression hearing, nor do they involve an unreasonable application ofMiranda and its progeny. Maldonado's Miranda habeas claim — that his pre-Miranda statements should have been suppressed as custodial interrogation in violation of his Miranda rights — should be DENIED.

C. Any Error in Admitting Maldonado's Pre-Miranda Statements Was Harmless

Even assuming arguendo that Maldonado's pre-Miranda statements were made while he was "in custody" and therefore inadmissible, any error in admitting the pre-Miranda statements was harmless error. E.g., Parsad v. Greiner, 337 F.3d 175, 185-86 (2d Cir. 2003); Cruz v. Miller, 98 Civ. 4311, 1999 WL 1144280 at *5-6 (S.D.N.Y. Dec. 2, 1999) (Jones, DJ. Peck, M. J.), aff'd, 255 F.3d 77 (2nd Cir. 2001).

Miranda violations are subject to harmless error analysis. See. e.g., Parsad v. Greiner, 337 F.3d at 185 (error in admitting pre-Miranda statement "was harmless, as petitioner's post-Miranda statements, which we have held were properly admitted, were cumulative of his pre-Miranda statements."); Tankleff v. Senkowski, 135 F.3d 235, 245-46 (2d Cir. 1998) (applying harmless error doctrine to Miranda violation); Rollins v. Leonardo, 93 8 F.2d 380, 382 (2d Cir. 1991) (per curiam) (applying harmless error doctrine to Miranda violation), cert. denied, 502 U.S. 1062, 112 S.Ct. 944 (1992); Cruz v. Miller, 1999 WL1144280 at *5: see also. e.g., Arizona v. Fulminante, 499 U.S. 279, 306-12, 111 S.Ct. 1246, 1262-66 (1991) (applying harmless error analysis to a coerced confession).

In Brecht v. Abrahamson, the Supreme Court held that the appropriate harmless error standard to apply on habeas corpus review of trial errors, such as the admission of evidence, is whether the error "'had substantial and injurious effect or influence in determining the jury's verdict.'" 507U.S. 619.638.113 S.Ct. 1710.1722 (1993) (quoting Kotteakos v. United States, 328 U.S. 750. 776, 66 S.Ct. 1239, 1253 (1946)).³⁸

38 See. e.g., O'Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992 (1995); Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 729 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Brewer v. Reynolds, 51 F.3d 1519, 1529-30 (10th Cir. 1995), cert. denied, 516 U.S. 1123, 166 S.Ct. 936 (1996); Cruz v. Miller, 1999 WL 1144280 at *5; Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *6 (S.D.N.Y. Sept. 17, 1998) (Cote, DJ. Peck, MJ.);James v. Senkowski, 97 Civ. 3327, 1998 WL 217903 at *9 (S.D.N.Y. Apr. 29, 1998) (Cote, DJ. Peck, MJ.); Bovd v. Hawk, 965 F. Supp. 443, 445 (S.D.N.Y. 1997) (Batts, DJ. Peck, MJ.) (under the Brecht standard "a Petitioner is not entitled to habeas relief based on trial error unless he or she can establish that the error resulted in actual prejudice"); see also Parsad v. Greiner, 337 F.3d at 185 n. 5 (findingMiranda error harmless whether Brecht or Chapman v. California, 386 U.S. 18, 87 S.Ct. 824 (1967), harmless error "standard of review applies to post-AEDPA cases," which is an open issue in the Circuit).

This Court cannot conclude that Maldonado's pre-Miranda statements had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. at 638, 113 S.Ct. at 1722. In Maldonado's first statement at 1:05 p.m., he "referred to Ms. Padilla as an aunt," stated that "he got along very well with" her and that she "used to baby sit him." (Flannino: H. at 19-20, 74.) Maldonado said that while he was in the bathroom, Padilla began banging on the bathroom door and then left the apartment, Maldonado went to sleep and was awakened by the police the next morning. (Flannino: H. 21; see page 6 above.) In his second statement at 9:50 p.m., Maldonado told the detective that he saw Harvey Wessler "choking and shaking" Padilla, that Maldonado kicked Padilla and threw her out the door, and that Maldonado saw Padilla being dragged away (Flannino: H. 28-29, 114) — again, an entirely exculpatory statement. (See page 7 above.) In Maldonado's third interview at 10:05 p.m., he stated that he saw Wessler choking Padilla and that he helped Wessler drag her body to the service elevator. (Flannino: H. 32-33; see page 9 above.) At the beginning of the fourth interview at 11:50 p.m., Maldonado repeated that Wessler had choked Padilla and then said that he was going to tell Detective Flannino the truth about what really had happened. (Flannino: H. 34, 125; see page 10 above.) Maldonado was given Miranda warnings, waived his rights, and confessed to Padilla's murder, in both a written statement at 12:30 p.m. and on videotape around 2 a.m. (H. 34-38, 42-45, 127-29, 134.)

In light of Maldonado's admissible post-Miranda confessions, see Point IV.B.2 below, the Court cannot find that the admission of Maldonado's initial exculpatory and minorly inculpatory pre-Miranda statements had "substantial and injurious effect or influence in determining the jury's verdict." See. e.g., Parsad v. Greiner, 337 F.3d at 185 (harmless error to admit petitioner's pre-Miranda, custodial statements where his post-Miranda statements were properly admitted and cumulative of pre-Miranda statements); Tankleff v. Senkowski, 135 F.3d at 245 (State court's error in admitting petitioner's "inculpatory pre-Miranda statements. . . . was harmless beyond a reasonable doubt" where the statements were "brief and substantially the same as some of his later, admissible confession."); Nova v. Bartlett, 211 F.3d 705, 709 (2d Cir. 2000) ("in light of the fact that [petitioner] made complete, detailed [oral, written, and videotaped] confessions after having been read his [Miranda] rights, the admission of his pre-warning statements [agreeing to tell the truth], even if inappropriate, would amount to no more than harmless error."); Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *11 (S.D.N.Y. Feb. 20, 2002) (Even if petitioner was in custody before receiving Miranda warnings, any error in admitting pre-Miranda statements harmless where pre-Miranda statement that he was going to tell the truth was not inculpatory and post-Miranda oral and videotaped statements were admissible.); Wilson v. Walker, No. 00-CV-5348, 2001 WL 1388299 at *3-4 (E.D.N.Y. Nov. 2, 2001) (where petitioner's "full and detailed" "subsequent post-warning confessions were properly admitted, any possible error in the admission of the pre-warning confession was harmless."); Vasquez v. Senkowski, 54 F. Supp.2d 208, 214 (S.D.N.Y. 1999) (Admission of petitioner's first confession harmless where petitioner gave several more confessions following Miranda warnings and " [w]ith each confession, petitioner revealed new information to the detectives, culminating in a full, videotaped confession . . .").

Accordingly, Maldonado's first ground for habeas corpus relief, alleging Miranda violations, should be DENIED.

III. MALDONADO'S REMAINING HABEAS CLAIMS ARE UNEXHAUSTED BUT DEEMED EXHAUSTED AND PROCEDURALLY BARRED

Maldonado concedes that he has exhausted his state remedies only as to his first habeas claim (his Miranda claim), addressed in Point II above. (Dkt. No. 1: Pet. ¶ 13.) Maldonado's remaining three habeas grounds "were not presented [on appeal]. . . due to the ineffective assistance of appellate counsel," but "were presented at hearing and to the trial court- [and] in an application for a writ of coram nobis to the Appellate Division, First Department based upon the ineffective assistance of appellate counsel." (Pet. ¶ 13.) A. The Unexhausted But Deemed Exhausted and Procedurally Barred Doctrine³⁹

39 For additional decisions by this Judge discussing the unexhausted but deemed exhausted and procedurally barred doctrine in language substantially similar to that in this entire section of this Report Recommendation, see Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *6-9 (S.D.N.Y. Sept. 26, 2003) (Peck, MJ.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *30-32 (S.D.N.Y. Sept. 10, 2003) (Peck, MJ.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *6-8 (S.D.N.Y. Oct. 18, 2002) (Peck, MJ.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *13-15 (S.D.N.Y. July 24, 2002) (Peck, MJ.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *15-16 (S.D.N.Y. May 15, 2002) (Peck, MJ.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. Jul. 12, 2001) (Peck, MJ.); Bailey v. People of State of New York, 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. Jun. 8, 2001) (Peck, MJ.); Bryant v. Bennett, OO Civ. 5692, 2001 WL 286776 at *7-9 (S.D.N.Y. Mar. 2, 2001) (Peck, MJ.); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, MJ.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at * 5 (S.D.N.Y. Aug. 18, 2000) (Peck, MJ.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (S.D.N. Y. June 6, 2000) (Peck, MJ.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, DJ.). aff'd, 303 F.3d 411 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003); Foreman v. Garvia 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, MJ.); Thomas v. Greiner, Ill F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, DJ. Peck, MJ.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, MJ.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, DJ. Peck, MJ.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, DJ. Peck, MJ.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, DJ. Peck, MJ.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, DJ. Peck, MJ.),aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).

Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A);see. e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Dave v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord. e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732.

The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:

First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts?. Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.

Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, DJ. Peck, MJ.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord. e.g., O'Sullivan v. Boerckel, 526 U.S. at 843-48, 119 S.Ct. at 1732-34.

"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Dave v. Attorney General, 696 F.2d at 191 ⁴⁰ The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Cox v. Miller, 296 F.3d at 99; Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Dave v. Attorney General, 696 F.2d at 191. In Dave, the Second Circuit en banc stated:

40 Accord. e.g., O'Sullivan v. Boerckel, 526 U.S. at 844, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Keane, 329 F.3d 290, 294-95 (2d Cir. 2003); Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002), cert. denied, 123 S.Ct. 1273 (2003); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).

[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (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.

Dave v. Attorney General, 696 F.2d at 194.⁴¹

41 Accord. e.g., Cox v. Miller, 296 F.3d at 99; Ramirez v. Attorney General, 280 F.3d 87, 95 (2d Cir. 2001); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688.

"Tor exhaustion purposes, 'a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))).⁴² "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., McKethan v. Mantello, 292 F.3d at 122-23; Ramirez v. Attorney General, 280 F.3d at 94; Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828;Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993). cert. denied. 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.

42 Accord. e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); McKethan v. Mantello, 292 F.3d 119, 122-23 (2d Cir. 2002) (claims deemed exhausted where they were "procedurally barred for not having been raised in a timely fashion"); Ramirez v. Attorney General, 280 F.dat 94; Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted.").

In this case, it is clear that Maldondo is now barred from raising his remaining confession "voluntariness" habeas claims in federal terms in state court because such claims could have been raised on direct appeal, but were not.⁴³ As the Second Circuit explained in Washington v. James:

Consequently, we do not believe [Petitioner] has fairly presented to the state courts his constitutional objection. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim.

As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore [petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . . Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.

996 F.2d at 1446-47.⁴⁴

43 New York C.P.L. § 440.10(2)(c) states, in pertinent part:

2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:

(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to . . . raise such ground or issue upon an appeal actually perfected by him. . . .

44 See also. e.g., Jones v. Keane, 329 F.3d at 296 ("[Petitioner] has procedurally defaulted his vagueness claim since New York's procedural rules now bar [petitioner] from raising it in New York courts. Further direct review by the Court of Appeals is no longer available-"); Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added).

To avoid such a procedural default, Maldonado would have to "show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. at 262, 109 S.Ct. at 1043 (citations omitted). Ineffective assistance of counsel can, of course, represent cause for a procedural default. See. e.g., Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645 (1986); Reyes v. Keane, 118 F.3d at 139; Wilder v. Herbert, 03 Civ. 397, 2003 WL 22219929 at *9 (S.D.N.Y. Sept. 26, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 22093466 at *32 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Sanchez v. Green, 02 Civ. 4803, 2003 WL 132538 at *2 (S.D.N.Y. Jan. 16, 2003) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6 n. 7 (S.D.N. Y. Oct. 15, 2002) (Peck, MJ.) ( cases cited therein). However, because this Court finds that Maldonado was not denied the effective assistance of appellate counsel, see Point IV below, he has no grounds to excuse the failure to raise his remaining confession voluntariness habeas claims in state court, and they are thus unexhausted but deemed exhausted and barred from federal habeas review. IV. BECAUSE MALDONADO WAS NOT DENIED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL, MALDONADO CANNOT SHOW CAUSE AND PREJUDICE FOR THE PROCEDURAL DEFAULT OF HIS CONFESSION VOLUNTARINESS CLAIMS

Maldonado has exhausted his ineffective assistance of appellate counsel claims through his first and second coram nobis petitions. See. e.g., Avincola v. Stinson, 60 F. Supp.2d 133, 165 (S.D.N.Y. July 9, 1999) (Scheindlin, DJ. Peck, MJ.); Ramirez v. Headley, 98 Civ. 2603, 1998 WL 788782 at *4 (S.D.N.Y. Nov. 10, 1998) ("the filing and consideration of a petition for writ of error coram nobis, which alleges ineffective assistance of appellate counsel, by the Appellate Division satisfies the exhaustion requirement"); Garcia v. Keane, 973 F. Supp. 364, 370 (S.D.N.Y. 1997); Meatley v. Artuz, 886 F. Supp. 1009, 1013 (E.D.N.Y. 1995).

Maldonado alleges that the ineffective assistance of his appellate counsel represents cause for the procedural default on his confession voluntariness habeas claims. (Dkt. No. 7: Maldonado Reply Br. at 6.) Because his ineffective appellate counsel claims are meritless, see Point IV.B.4 below, however, they may not serve as "cause" for the procedural default of his involuntariness claims, which are therefore barred from habeas review. See. e.g., Aparicio v. Artuz, 269 F.3d 78, 92-93 (2d Cir. 2001) (because petitioner's claim for ineffective assistance of appellate counsel was meritless, that claim could not serve as the cause to excuse the procedural default of petitioner's claims for ineffective assistance of trial counsel); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, MJ.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, DJ.). A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel⁴⁵

45 For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at * 17-18 (S.D.N.Y. Oct. 22, 2003) (Peck, M. J.); Besser v. Walsh, 02 Civ. 6775, 2003 SL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, MJ.); Guzman v. Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at * 14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y Dec. 20, 2002) (Peck, M. J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-ll (S.D.N.Y. May 15, 2002) (Peck, M. J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M. J.); Rivera v. Duncan, OO Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, OO Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.);Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, DJ. Peck, MJ.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, MJ.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34 (S.D.N.Y. 1999) (Kaplan, DJ. Peck, MJ.);Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, DJ. Peck, MJ.); Bovd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, DJ. Peck, MJ.).

In Strickland v. Washington, 466 U.S. 668, 104 So. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord. e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064.⁴⁶

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).⁴⁷

46 Accord, e.g., Wiggins v. Smith, 123 So. Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 So. Ct. 1843, 1850 (2002).

47 Accord, e.g, Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852:Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance.Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 So. Ct. at 2068.⁴⁸

48 See also. e.g., Wiggins v. Smith, 123 S.Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850: Aparicio v. Artuz, 269 F.3d at 95: Sellan v. Kuhlman, 261 F.3d at 315: DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).
"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord. e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct., 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"):Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cf Id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 So. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one."Strickland v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.⁴⁹

49 Accord. e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In 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." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.⁵⁰

50 See also. e.g., Yarborough v. Gentry, No. 02-1597, 2003 WL 22382563 at *4-5, S.Ct.
(U.S. Oct. 20, 2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81(1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d at 199.

The Strickland test applies to appellate as well as trial counsel.See. e.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764.⁵¹ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mavo v. Henderson, 13 F.3d at 533-34; see also Larrea v. Bennett, 2002 WL 1173564 at *18 n. 30 (discussing the issue of whether a federal or state standard should apply).

51 Accord, e.g.,Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Frederick v. Warden. Lewisburg Corr. Fac., 308 F.3d 192, 197 (2d Cir. 2002), cert. denied, 537 U.S. 1146, 123 S.Ct. 946 (2003); Aparicio v. Artuz, 269 F.3d at 95: Sellanv. Kuhlman, 261 F.3d at 319; McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mavo v. Henderson, 13 F.3d at 533; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993);Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990); Ortiz v. United States, 01 Civ. 9990, 2002 WL 31427356 at *4 (S.D.N.Y. Oct. 30, 2002);Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612 at *8 (E.D.N.Y. Sept. 18, 2002); King v. Greiner, 210 F. Supp.2d 177, 182-83 (E.D.N.Y. 2002).
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of appellate counsel, in language substantially similar to the balance of this section of this Report Recommendation, see Besser v. Walsh, 2003 WL 22093477 at *34; Guzman v. Fischer, 2003 WL 21744086 at *11; Larrea v. Bennett, 2002 WL1173564 at * 18: Rivera v. Duncan, 2001 WL1580240 at *10: Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 277;Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, DJ. Peck, MJ.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, DJ. Peck, MJ.).

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).⁵² Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72.⁵³ Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533; see also. e.g., Jackson v. Leonardo, 162 F.3d at 85.

52 Accord. e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."); Jackson v. Leonardo, 162 F.3d at 85; Mavo v. Henderson, 13 F.3d at 533.

53 Accord. e.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).⁵⁴ "For AEDP A purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S.Ct. at 1852; see also Yarborough v. Gentry, 2003 WL 22382563 at *3. B. Maldonado's Claims of Ineffective Appellate Counsel are Meritless

54 See also. e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Sellan v. Kuhlman, 261 F.3d at 315.

Maldonado concedes that the single claim appellate counsel raised in the First Department had merit (Ex. 6: Maldonado 1st Coram Nobis Br. at 4; Dkt. No. 7: Maldonado Reply Br. at 25), but claims that three issues appellate counsel did not raise are "overwhelmingly stronger and less murky than the one point raised on appeal" (Dkt. No. 7: Maldonado Reply Br. at 25). Maldonado argues that in contrast to the People v. Chappie issue as to the post-Miranda statements that appellate counsel did raise.

The more pressing question regarding the issue of Miranda warnings is the unraised issue of was the interrogation of such a coercive nature that the administration of the warnings did not cause post-Miranda statements to be admissible. Here the circumstances were indeed so coercive that the petitioner could not make a voluntary and knowing waiver of such rights. Had Miranda occurred earlier in the questioning many of the coercive circumstances would not have occurred. Here however there was explicitly no change in the outward coercive circumstances after the Miranda warnings were administered; it was the same location, same officers, and the affirmative misrepresentations regarding removal of his child or arresting of Ms. Perez was still present based upon her very presence at the precinct.

(Dkt. No. 7: Maldonado Reply Br. at 25, citations omitted.)

1. Appellate Counsel's Single Argument To The First Department Was Not "Objectively Unreasonable"

As to the People v. Chappie claim that Maldonado's appellate counsel raised in the First Department, Maldonado argues while "there is merit to this argument in New York," (Dkt. No. 7: Maldonado Reply Br. at 22) "as is apparent from appellate counsel's state court brief, he was unable to find any recent cases that actually employed this standard to overturn a conviction based upon a confession." (Maldonado Reply Br. at 25 n. 16). It is unclear whether Maldonado faults appellate counsel for failing to cite recent New York cases employing thePeople v. Chappie standard or is claiming that, at the time of his appeal, the Appellate Divisions had not overturned any convictions on this basis. This Court finds thatChappie was a valid and potentially successful argument on appeal in New York at the time and, indeed, was used by the Appellate Divisions to suppress post-Miranda confessions and overturn convictions in the relevant time period. See. e.g., People v. Bethea, 67 N.Y.2d 364, 366, 502 N.Y.S.2d 713, 714 (1986) (New York rejects the Supreme Court's decision in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1985), and reaffirms that "[t]he rule of the Chappie case, therefore, continues as a matter of State constitutional law, to govern the admissibility of statements obtained as a result of continuous custodial interrogation."); People v. Robbins, 236 A.D.2d 823, 824-25, 654 N.Y.S.2d 494, 495 (4th Dep't), appeal denied, 90 N.Y.2d 863, 661 N.Y.S.2d 190 (1997): People v. Hardy, 223 A.D.2d 839, 841, 636N.Y.S.2d459, 462 (3d Dep't 1996); People v. Macklin, 202 A.D.2d 445, 447, 608 N.Y.S.2d 509, 511 (2d Dep't), appeal denied. 83 N.Y.2d912.614N.Y.S.2d 394 (1994):People v. Robertson. 133 A.D.2d 355, 356. 519 N.Y.S.2d 256, 258 (2d Dep't 1987): People v. Campbell, 123 A.D.2d 878, 878, 507 N.Y.S.2d 479, 480 (2d Dep't 1986). Indeed, theChappie argument continues to thrive as a valid appellate argument in New York; since Maldonado's appeal, the Appellate Divisions have continued to reverse convictions and grant new trials under People v. Chappie, See. e.g., People v. Kollar, 760 N.Y.S.o.2d 449, 453-54, 305 A.D.2d 295, 300 (1st Dep't 2003); People v. Evans, 294 A.D.2d 918, 919, 741 N.Y.S.2d 811, 813 (4th Dep't), appeal dismissed. 98 N.Y.2d 768.752 N.Y.S.2d 8 (2002):People v. Mover, 292 A.D.2d 793, 794, 738 N.Y.S.2d 810, 813 (4th Dep't 2002); People v. Gundersen, 255 A.D.2d 454, 454-55, 682 N.Y.S.2d 215, 216 (2d Dep't 1998); see also Delay in Administering Miranda Warnings, 32 Carmody-Wait 172:558 (2002) ("Despite the holding of the Supreme Court in Oregon v. Elstad, the rule of the Chappie case continues, as a matter of state constitutional law, to govern the admissibility of statements obtained as a result of continuous custodial interrogation.").

2. Maldonado's Post-Miranda Statements Were Properly Admitted at Trial

Maldonado claims that his appellate counsel was ineffective for failing to claim on appeal that Maldonado's pre-Miranda statements rendered his post-Miranda statements inadmissible under Oregon v. Elstad, 470 U.S. 298, 105 S. Ct 1285 (1985). (Dkt. No. 7: Maldonado Reply Br. at 23). Specifically, Maldonado argues his confession was psychologically coerced because "his confession to the murder came only after he learned that the police threatened to take away [his] unborn child if information was not provided." (Dkt. No. 1: Pet. ¶ 12(B).) Maldonado argues that due to these coercive circumstances, any waiver of Miranda rights could not have been knowing and voluntary and therefore his post-Miranda statements should have been suppressed. (Dkt. No. 1: Pet. ¶ 12(A).)

The Court has clear guidance from the Supreme Court and the Second Circuit on this issue. The Supreme Court has made clear that even if a petitioner's initial statements are considered "incriminating and obtained in violation of the Miranda rule, that does not render his later, fully warned confessions inadmissible." Nova v. Bartlett, 211 F.3d 705, 708 (2d Cir. 2000) (citing Oregon v. Elstad, 470 U.S. 298, 311-14, 105 S.Ct. 1285, 1294-96 (1985). "[T]he Supreme Court expressly rejected the 'cat out of the bag' theory under which, once an incriminating statement has been made, no subsequent confession can be truly voluntary." Nova v. Bartlett, 211 F.3d at 708 (citing Oregon v. Elstad, 470 U.S. at 318, 105 S.Ct. at 1297-98); see also. e.g., Legree v. Greiner, 00 Civ. 6680, 2001 WL 527423 at *7 (S.D.N.Y. May 17, 2001) (Peck, MJ.), report rec. adopted, 2001 WL 1231535 (S.D.N.Y. Oct. 16, 2001) (Cote, D.J.).

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285 (1988), the Supreme Court determined that where a defendant makes a pre-Miranda statement and then a post-Miranda statement, the latter is admissible if "knowingly and voluntarily made":

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made,

We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement, In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.

Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made, As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth amendment proscription against use of compelled testimony are fully satisfied . . . by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings,

Oregon v. Elstad , 470 U.S. at 309, 314, 318, 105 So. Ct. at 1293, 1296, 1297-98 (emphasis added); see, e.g., Parsad v. Greiner, 337 F.3d 175, 183 (2d Cir. 2003); Nova v. Bartlett, 211 F.3d at 708-09; Casellas v. McGinnis, No. 99-2127, 199 F.3d 1321 (table), 1999 WL 980948 at *3 (2d Cir. Oct. 22, 1999) (" [I]t is not enough to say that the first confession was obtained in violation of Miranda[,] [f]or the later confessions would still be admissible under Elstad unless the circumstances surrounding this first statement entailed coercion so great that there could not have been a voluntary waiver of rights as to the subsequent confessions."), cert. denied, 529 U.S. 1091, 120 S.Ct. 1729 (2000); United States v. Orellana-Osorio, No. 95-1541, 101 F.3d 1393 (table), 1996 WL 460797 at *2 (2d Cir. Aug. 14, 1996) ("When an unwarned admission has been made without coercion, the admissibility of additional statements, made after the subsequent administration of Miranda warnings, turns on whether these latter statements were also freely given."), cert. denied, 519 U.S. 1069, 117 S.Ct. 713(1997).⁵⁵

55 See also. e.g., United States v. Ullah, 02 Cr. 899, 2003 WL 1396300 at *7 (S.D.N.Y. Mar. 20, 2003) ("A second confession by a defendant after a Miranda warning and waiver is not subject to suppression just because the previous statement was obtained withoutMiranda warnings."); United States v. Tavares, 01 Cr. 1115, 2002 WL 31571662 at *8 (S.D.N.Y. Nov. 18, 2002) (Under Elstad, "[t]he fact that the defendants were subjected to some questioning before the reading of their Miranda rights does not render inadmissible the statements made by the defendants after the reading of their Miranda rights."); Legree v. Greiner, 2001 WL 527423 at *7-8; Vasquez v. Senkowski, 54 F. Supp.2d 208, 213-14 (S.D.N.Y. 1999): United States v. Ford, 96 Cr. 672, 1997 WL 538813 at *10 (S.D.N.Y. Aug. 29, 1997) ("[T]he fact that the Defendants were subjected to some questioning prior to the reading of their Miranda rights does not render inadmissible the statements made by the Defendants after the reading of their Miranda rights.").

The issue, therefore, is whether the circumstances surrounding Maldonado's initial, pre-Miranda statements "were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his 'second,' [and third] warned confession." Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998); accord. e.g., Legree v. Greiner, 2001 WL 527423 at *8: see, e.g., Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522 (1986) ("coercive police activity is a necessary predicate to the finding that a [post-Miranda] confession is not 'voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment"); Parsad v. Greiner, 337 F.3d at 183 (" [W]e must consider whether the circumstances surrounding petitioner's unwarned confessions were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his post-Miranda confession."); Casellas v. McGinnis, 1999 WL 980948 at *3; United States v. Amerv, 02 Cr. 143, 2002 WL 31027514 at *1 (S.D.N.Y. Sept. 10, 2002) ("A Miranda waiver . . . [is] involuntary where it is the result of coercive governmental activity. In order to make a finding of involuntariness, the coercive governmental activity must overbear the defendant's will.") (citations omitted).⁵⁶

56 See also. e.g., United States v. Troche, 181 F. Supp.2d 340, 350 (S.D.N.Y. 2002) ("Unless 'the circumstances surrounding [the defendant's] first unwarned confession were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights,' the second warned confession will be admissible.") (quoting Tankleff v. Senkowski, 135 F.3d at 244, internal quotations omitted): Heron v. People of the State of New York, 98 Civ. 7941, 1999 WL 1125059 at *8 (S.D.N.Y. Dec. 8, 1999); Vasquez v. Senkowski, 54 F. Supp.2d at 213-14.

Even assuming arguendo that Maldonado was "in custody" (which this Court finds he was not), custody alone is not sufficient to prove coercion. "Serious pressures inherent in custodial interrogation will inevitably be present in any case under[Oregon v.] Elstad — which, after all, addresses situations in which a defendant was in custody and entitled to Miranda warnings at some point before those warnings were given. Thus, we cannot rely solely on theMiranda presumption that custodial interrogation is coercive in determining whether [petitioner's] second confession must be suppressed."Tankleff v. Senkowski, 135 F.3d at 244; accord. e.g., Parsad v. Greiner, 337 F.3d at *183; Legree v. Greiner, 2001 WL527423 at *8.

The Court must look at the "totality of the circumstances" to determine if the circumstances surrounding Maldonado's initial statements were so coercive as to require suppression of his post-Miranda statements. See. e.g., Parsad v. Greiner, 337 F.3d at 183 ("in determining the voluntariness of petitioner's post-Miranda confessions, we must examine the totality of the circumstances"); Casellas v. McGinnis, 1999 WL 980948 at *2 (defendants statements "can be suppressed on Miranda grounds only if the circumstances surrounding the first confession were sufficiently coercive so that the defendant could not have been said to have knowingly and intelligently waived his rights with respect to these subsequent admissions"); Tankleff v. Senkowski, 135 F.3d at 244-45 fciting Campaneria v. Reid. 891 F.2d 1014.1019-20 (2dCir. 1989), cert. denied. 499U.S. 949, 111 S.Ct. 1419 (1991)); United States v. Orellana-Osorio, 1996 WL 460797 at *2 ("When an unwarned admission has been made without coercion, the admissibility of additional statements, made after the subsequent administration of Miranda warnings, turns on whether these latter statements were also freely given."); United States v. Valdez, 16 F.3d 1324, 1328 (2d Cir.) ("Under standard voluntariness analysis, [the Court must] inquire 'into all the circumstances surrounding the law enforcement officials' conduct to ascertain whether it overcame the accused's will to resist and brought about a confession that was not freely self-determined.'"), cert. denied, 513 U.S. 810, 115 S.Ct. 60 (1994);United States v. Valencia, 826 F.2d 169, 177 (2d Cir. 1987); Heron v. People, 1999 WL 1125059 at * 8 ("In determining voluntariness, this Court must consider whether the circumstances surrounding petitioner's 'first' unwarned statements were so coercive as to prevent him from making a subsequent knowing and voluntary waiver of his rights, thereby requiring the suppression of his 'second' warned statement. . . . [T]his Court must look to the totality of the circumstances."): Vasquez v. Senkowski, 54 F. Supp.2d at 213-14: United States v. Ford, 1997 WL 538813 at *11.

The Second Circuit has emphasized the "fact-specific nature" of the "totality of the circumstances" determination. Tankleff v. Senkowski, 135 F.3d at 245.⁵⁷ The Court must "look to Miranda's twin rationales — trustworthiness and deterrence — to see whether suppression of the second statement would serve the general goal of deterring unlawful police conduct and the Fifth Amendment goal of assuring the receipt of trustworthy evidence." Tankleff v. Senkowski, 135 F.3d at 245 (internal quotations omitted); accord. e.g., Legree v. Greiner, 2001 WL 527423 at *9. "In applying the totality of the circumstances test, the pertinent factors which merit consideration are (1) the characteristics of the accused, (2) the conditions of [the] interrogation, and (3) the conduct of [the] law enforcement officials. In connection with the third factor, whether a suspect has been advised of his rights under Miranda is an important consideration in determining whether a confession is voluntary." Vasquez v. Senkowski, 54 F. Supp.2d at 215 (citations internal quotations omitted); accord. e.g., Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 2332 (2000) (The test to determine whether a statement is voluntary is "'whether a defendant's will was overborne' by the circumstances surrounding the giving of a confession. The due process test takes into consideration 'the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.'"); Parsad v. Greiner, 337 F.3d at 183; United States v. Anderson, 929 F.2d 96.99-100 (2dCir. 1991): United States v. Tutino, 883 F.2d 1125.1138 (2d Cir. 1989) (Wood, DJ., by designation) ("The test of voluntariness of a confession is whether all the relevant circumstances show that the conduct of law enforcement officials 'was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined."), cert. denied. 493 U.S. 1081.110 S.Ct. 1139 (1990): Greeny. Scully. 850 F.2d 894, 901-02 (2d Cir.) (citing cases), cert. denied, 488 U.S. 945, 109 S.Ct. 374 (1988): Wilson v. Walker, No. 00-CV-5348. 2001 WL1388299 at *4 (E.D.N.Y. Nov. 2, 2001) ("[T]he totality of the circumstances [for purposes of Oregon v. Elstad] includ[es] the characteristics of the accused, the conditions of the interrogation, and the conduct of the law enforcement officials."); Legree v. Greiner, 2001 WL 527423 at *9; Heron v. People, 1999 WL 1125059 at *8: United States v. Zerbo, 98 Cr. 1344, 1999 WL 804129 at *8 (S.D.N.Y. Oct. 8, 1999): United States v. Ford, 1997 WL 538813 at * 10-11: United States v. Rodriguez, 92 Cr. 452, 1993 WL 78060 at *2 (S.D.N. Y. Mar. 16, 1993) (Wood, DJ.) ("A confession is not voluntary when obtained under circumstances that overbear the defendant's will at the time it is given. Whether a confession is a product of coercion may only be determined after a careful evaluation of the totality of all the surrounding circumstances, including the accused's characteristics, the conditions of interrogation, and the conduct of law enforcement officials.").⁵⁸

57 Accord. e.g., Legree v. Greiner, 2001 WL 527423 at *9; see also. e.g., United States v. Gilmore, No. 99-1084, 205 F.3d 1325 (table), 1999 WL 1253987 at *1 (2d Cir. Dec. 15, 1999) ("We have previously stressed the 'fact-specific nature' of these sorts of determinations. . . .").

58 The Second Circuit has upheld the admission of post-Miranda confessions obtained after inculpatory pre-Miranda statements in cases which present more compelling facts for petitioner. See. e.g., Nova v. Bartlett, 211 F.3d at 707-10 (petitioner "gave two extensive confessions after voluntarily waiving his Miranda rights, and those confessions were admissible at trial," even though, before receiving Miranda warnings, "police employed several tactics to induce [petitioner] to make statements implicating himself in the crime" and did not give petitioner "an opportunity to contact a lawyer, friend, or family member."); cf Casellas v. McGinnis, 1999 WL 980948 at * 1-3 (post-Miranda statements admitted even though pre-Miranda statements were obtained after police grabbed the arm of extremely religious defendant and forced him to swear on a cross which the police untruthfully represented had been blessed by the Pope):Tankleff v. Senkowski, 135 F.2d at 240-41, 244-45 (upholding the admission of petitioner's second counseled statement where the petitioner's first statements occurred before he was advised of hisMiranda rights but after the police interrogated him, and told him untruthfully, that his victim regained consciousness and accused him of the crime).

The Second Circuit has further explained the three factors in the "totality of the circumstances." First, "[t]he relevant characteristics of the individual who confessed are the individual's experience and background, together with the suspect's youth and lack of education or intelligence." Green v. Scully, 850 F.2d at 902. Second, the conditions of interrogation include "the place where an interrogation is held," "the length of detention" and "the presence or absence of counsel." Green v. Scully, 850 F.2d at 902. Third, the conduct of law enforcement officials includes consideration of:

the repeated and prolonged nature of the questioning or the failure to inform the accused of his constitutional rights, whether there was physical mistreatment such as beatings, or long restraint in handcuffs, and whether other physical deprivations occurred such as depriving an accused of food, water or sleep, or even of clothing, for a prolonged period. In addition . . . such police conduct might include psychologically coercive techniques such as brainwashing or promises of leniency or other benefits.

Green v. Scully, 850 F.2d at 902 (citations omitted).

Applying these factors to the record, the Court finds that the circumstances surrounding petitioner's pre-Miranda statements to Detective Flannino were not so coercive as to render petitioner's subsequent post-Miranda statements involuntary⁵⁹ "The record provides no indication that the initial interrogation of petitioner involved physical or psychological coercion." Heron v. People, 1999 WL 1125059 at *8; see also. e.g., Legree v. Greiner, 2001 WL 527423 at *9; Vasquez v. Senkowski, 54 F. Supp.2d at 215.

59 The appropriate AEDPA review standard on the issue of voluntariness gives deference to the state court's findings of fact but independently determines the ultimate legal issue of Voluntariness. While giving deference to the state court's factual findings, the habeas court has "the responsibility to decide independently of the judgment of the state court whether [petitioner's] confession was unconstitutionally obtained." Graham v. Leonardo, No. 98-2042, 166 F.3d 1200 (table), 1998 WL 852942 at *4(2d Cir. Dec. 1, 1998). cert. denied. 526 U.S. 1029, 119 S.Ct. 1275 (1999): see also. e.g., Davis v. Johnson, 258 F. Supp.2d 93.100 (S.D.N.Y. 2003) (While the "'ultimate issue of voluntariness [of a confession] is a legal question requiring independent federal determination,'" factual questions underlying that legal determination "are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).") (brackets in original) (quoting Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997)); Mackenzie v. Portuondo, 208 F. Supp.2d 302, 324 (E.D.N.Y. 2002) ("The ultimate question of whether a confession was voluntary or involuntary is a legal question requiring independent federal determination. Subsidiary factual questions underlying a legal determination, however, are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).") (citations internal quotations omitted); Basnight v. Keane, No. 99-CV-5907, 2001 WL 901139 at *4 (E.D.N.Y. July 31, 2001) ("While the ultimate question of the Voluntariness of such a statement is a matter for independent federal review on a habeas petition, state court determinations of underlying factual questions are entitled to the statutory presumption of correctness."); Richter v. Artuz, 77 F. Supp.2d 385, 396 (S.D.N.Y. 1999) (Parker, DJ.) ("The Supreme Court has held that 'sthe ultimate question, whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.' However, a state court's determinations of subsidiary questions such as the length and circumstances of the interrogation . . . are considered questions of fact, which are entitled to a presumption of correctness under 28 U.S.C. § 2254(d).").

To the contrary, there is no credible evidence that the detectives were hostile or abusive or that Maldonado asked for the interrogation to stop or requested an attorney, and all evidence indicates that Maldonado was talking voluntarily to the officers; thus, the police conduct was not coercive. See. e.g., Legree v. Greiner, 2001 WL 527423 at *9; United States v. Gilmore, 1999 WL1253987 at * 1 (despite initial unwarned statement, subsequent statement was knowing and voluntary where "questioning proceeded without coercion, threats, [or] any show of force"); Vasquez v. Senkowski, 54 F. Supp.2d at 216 (police conduct "not coercive" where police were not abusive toward petitioner and merely reiterated what petitioner said before he was advised of his rights).

The pre-Miranda questioning was relatively brief and reasonable in length: although Maldonado was in the precinct for about twelve hours before receiving Miranda warnings, the total time that Maldonado was questioned by Detective Flannino was only about sixty to eighty minutes. (Flannino: H. 46; see pages 5-11 above.). See. e.g., Green v. Scully, 850 F.2d at 902 (duration of interrogation not coercive where interview lasted "for just over two hours"); United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987) (duration of interrogation not coercive where interview lasted "'approximately two and one-half hours.'"): Legree v. Greiner, 2001 WL 527423 at *9 (one hour and 25 minutes of questioning not coercive); United States v. Ford, 1997 WL 538813 at *10-11 n. 9 (post-Miranda statements were admitted where there was "no indication that the statements made by the Defendants prior to the reading of theirMiranda rights were in fact coerced or involuntary" since, among other things, "[t]he pre-Miranda questioning lasted a relatively short period of time"); United States v. DiLorenzo, S1 94 Cr. 303, 1995 WL 366377 at *6 (S.D.N.Y. June 19, 1995) ("The interrogation was reasonable in length, lasting approximately 21/2 hours.").

The detectives did not use dishonesty or misrepresentation to elicit statements from Maldonado. Compare. e.g., United States v. Anderson, 929 F.2d at 98-103 (post-Miranda confession suppressed because "the agent told defendant that if he asked for a lawyer it would permanently preclude him from cooperating with the police."); United States v. Zerbo, 1999 WL 804129 at *2-14 (agents isolated low intelligence, mentally ill defendant from his family);with. e.g., Legree v. Greiner, 2001WL 527423 at *9 ("The detectives did not use dishonesty or misrepresentation to elicit statements from [petitioner"!."): United States v. Ford, 1997 WL 538813 at *10 ("No psychologically coercive tactics were used. . . .").

There is nothing in the record that indicates Maldonado did not knowingly waive his Miranda rights. Maldonado's present counsel argues that Maldonado "was a high school dropout who in each of the two CPL Article 730 exams was found to be of low intelligence." (Dkt. No. 7: Maldonado Reply Br. at 1, ¶ 2; Maldonado Reply Br. Ex. A.) The argument, however, is not cognizable on this habeas petition because it was not made at the suppression hearing. (See pages 19-23 above.) Even were this Court to consider it, however, it would not change the result. Although Maldonado's intelligence was found to be "low average," he was also deemed "literate," "denie[d] a history of special education," and was found to have "a clear understanding of the courtroom proceedings." (Dkt. No. 7: Maldonado Reply Br. Ex. A: Dr. Brewer-Gizzarelli C.P.L. Article 730 Exam.) Despite Maldonado's alleged low intelligence, he was able to understand the Miranda rights when they were given to him: Maldonado answered "yes" when Detective Flannino read each right listed on the pre-printed Miranda card and asked if Maldonado understood it. (Flannino: H. 37, 126.) See. e.g., United States v. Male Juvenile, 121 F.3d 34, 40 (2d Cir. 1997) (Government demonstrated knowing and voluntary waiver of Miranda rights despite evidence of defendant's mental disabilities where defendant (1) said he understood agent's informal explanation, (2) said he understood each right after the agent read it, and (3) again stated that he understood his rights and signed the waiver form before confessing.) ( cases cited therein); Toste v. Lopes, 861 F.2d 782, 783 (2d Cir. 1988) ("Despite his low intelligence level, [petitioner] validly waived his rights under" Miranda, After petitioner was read his rights, "he orally indicated that he understood and signed a written form acknowledging that he comprehended his rights. At a second questioning session, [petitioner] was again warned of his rights in the same explicit fashion [and] again indicated that he understood and signed a statement acknowledging this. . . . A waiver of the right to remain silent is not invalid merely because a defendant is of limited mental capacity.") (citations omitted), cert. denied, 490 U.S. 1112, 109 S.Ct. 3170 (1989);United States v. Ford, 1997 WL 538813 at *12 ("[T]he record establishe[d] that [defendant's] waiver was made 'with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it'" where, among other things, agent "testified that he read [defendant] his rights sentence-by-sentence, stopping after each sentence to obtain an indication from [defendant] that he understood what was just read to him" and defendant then signed the preprinted Miranda form.) (quoting Moran v. Burbine, 475 U.S. 412. 421. 106 S.Ct. 1135 (1986));United States v. Murgas, 967 F. Supp. 695, 706-08 (N.D.N.Y. 1997) ("[W]hile [defendant] presented evidence that he has a below average IQ, limited education, and impaired reading ability, these limitations do not preclude a finding that he made a knowing and intelligent waiver of hisMiranda rights.") ( cases cited therein) (fn. omitted); Farinaro v. Kirk, 675 F. Supp. 75, 80-81 (E.D.N.Y. 1987) (McLaughlin, DJ.) (The late hour police awakened petitioner and the detective's abrupt manner were "outweighed by the factors suggesting that the statements were made voluntarily: petitioner was read his Miranda rights and indicated that he understood them, he was an adult of at least average intelligence, and he had had previous contact with the criminal justice system."), appeal dismissed, 872 F.2d 1021 (2d Cir. 1989).

Furthermore, Maldonado's videotaped confession was taken by an assistant district attorney, not Detective Flannino, nearly two hours after Detective Flannino first read Maldonado his rights. See. e.g., Vasquez v. Senkowski, 54 F. Supp.2d at 217-18 (Videotaped confession was voluntary where petitioner had already received and waived Miranda rights three times, the assistant district attorney, rather than the detectives, conducted the taped interview at a different station house approximately sixteen hours after petitioner's initial interview with detectives.); Pabon v. Hake, 763 F. Supp. 1189, 1191, 1194 (E.D.N.Y. 1991) (Videotaped statement was voluntary where it was petitioner's third statement, taken eight hours after petitioner's second statement, and was taken by a different person, an assistant district attorney.); McIntyre v. Scully, No. 89 C 903, 1989 WL 69893 at *3 (E.D.N.Y. June 19, 1989) ("Since [petitioner's] first, unwarned confession was not coerced, there was no constitutional reason to exclude the third, videotaped confession. Petitioner made that statement over three hours later after having twice received Miranda warnings and twice waived his rights. An assistant district attorney who had not heard the earlier admissions conducted the interrogation, although the police detective who took down the written confession was also present. This break in the interrogation and change in personnel, coupled with reiteration of the warnings and waiver, suffice to remove the taint of the unwarned statement. By then petitioner knew that he was free to speak or to remain silent. Having chosen to speak, he must live with the consequences of his choice."). Maldonado's main argument, at the suppression hearing and on this habeas petition, is that his confession was involuntary because of the police's psychological coercion by threatening his pregnant girlfriend and their unborn child. (See. e.g, H. 216; Dkt. No. 7: Maldonado Reply Br. at 9-13.) The problem with this argument is that it relies entirely on Perez's testimony (H. 169-70, 176, 182-89, 194-95; see pages 16-18 above), while ignoring Detective Flannino's testimony denying threatening Maldonado or Perez with arrest or anything else. (E.g,. Flannino: H. 117.) The suppression court found other aspects of Perez's testimony to be incredible and Detective Flannino's testimony credible (see H. 235-36 pages 23-24 above), and in general (without specific reference to Perez and the baby) the suppression judge held that he did not "buy" Maldonado's psychological coercion argument (H. 237-40, quoted at page 24 above).⁶⁰

60 Indeed, in his First Department Brief, Maldonado conceded that the hearing court discredited all of Perez's testimony: "But even discounting entirely Perez's testimony, as the hearing court did, appellant was clearly in custody after his 10:05p.m. statement." (Ex. 1; Maldonado 1st Dep't Br. at 19, emphasis added.)

Even if this Court were to independently review the credibility of Perez's testimony, based solely on the cold transcript (see fn.59 above), the Court would find her testimony unbelievable. Perez testified that when she first arrived at the precinct, she did not know about Padilla's death, but several pages later contradicted herself and admitted that Wessler had told her about Padilla's death as they were on the way to the police station. (Compare Perez: H. 150 with Perez: H. 159.) Perez testified that she asked three times to call her mother (H. 161, 183), but in contrast, even though she was none months pregnant, she said she was too scared to ask to use the bathroom. (H. 175, 184.)

Perez's testimony about her conversation with Maldonado about the alleged police threat to take her baby away also does not make sense. Perez testified that at around 7 p.m., after she had been at the precinct for eight hours, the police took her to the "front" to obtain pedigree information. (Perez: H. 170, 182, 184.) It seems strange that, according to her testimony, the police had time to scream at her and upset her but no time to take her name, address and telephone number until she had been at the station for eight hours. Perez also told two different stories as to how she and Maldonado were separated after she told him about the alleged threat — Perez first said the police took Maldonado away and later said the police removed her from the room. (Compare Perez: H. 170 with Perez: H. 194-95.)

Most importantly, however, the uncontradicted chronology of Maldonado's statements demonstrates that his will was not overcome by the alleged threat to his unborn child. Perez testified that the highly upsetting upsetting discussion about the loss of their child tookplace at around 7 p.m. (Perez: H. 170, 182, 184.) Maldonado thereafter was questioned at 9:50p.m. (See pages 7-8 above.) Maldonado's 9:50 p.m. statement still was exculpatory — he said Wessler choked Padilla. (Flannino: H. 28-29, 114.) If Perez's alleged discussion with Maldonado at 7 p.m. about the alleged police threat to take their baby away so psychologically coerced Maldonado, one would have expected him to confess to protect the baby at the next available opportunity, i.e,. at 9:50 p.m. He did not do so. Nor did Maldonado confess at the next opportunity — in his third statement at 10:05 p.m., Maldonado still said Wessler choked Padilla, but now admitted that he helped Wessler put her body in the elevator. (H. 32-33, 120-21.) Only at 11:50 p.m., almost five hours after the alleged Perez-Maldonado discussion about the alleged threat to their baby, did Maldonado tell the police that he would "tell the truth." (H. 34, 125.) At that point, Detective Flannino explained to Maldonado his Miranda rights, and Maldonado waived those rights. (H. 34-38, 125-26; see page 10 above.)

The state suppression court generally found Detective Flannino credible and Perez incredible, and specifically found that Maldonado was not psychologically coerced. Even on a de novo review of the suppression transcript, this Court agrees that Perez's story does not make sense. But even accepting her story, the five-hour gap between her alleged conveyance of the police threat to Maldonado, and his two intervening statements to the police claiming that Wessler killed Padilla, clearly demonstrates that Maldonado's post-Miranda 11:50 p.m. statement was not the result of psychological coercion. Cf. United States v. Casal, 915 F.2d 1225, 1228-29 (8th Cir. 1990) (Confession found voluntary over defendant's argument that the police "improperly used [defendant's] pregnant girlfriend as a "bargaining chip' to coerce a confession. [Defendant] argues that the police took the girlfriend to the police station and kept her there, distraught and crying, to create emotional pressure on [defendant]. . . . Whether they brought her to the station to protect her or to question her, they did not attempt to recruit her to persuade [defendant] to confess or make any threats to [defendant] concerning her."), cert. denied, 499 U.S. 941, 111 S.Ct. 1400 (1991).

One additional point. There was no evidence that the police ever directly threatened Maldonado about the loss of their baby. At most, Perez's testimony is that she was threatened (by unidentified police officers), she managed to tell Maldonado but as soon as the policewoman saw Perez and Maldonado talking, the policewoman separated them. (See pages 17-18 above.) Thee was no evidence that Detective Flannino, the only officer who questioned Maldonado, was involved in any of the alleged threats to Perez. While defense counsel argued that this was orchestrated to coerce Maldonado (H. 216), that was pure speculation, as the suppression court pointed out (H. 218).⁶¹ Thus, even assuming arguendo that the police threatened Perez with the loss of her baby, but did not so threaten Maldonado, that conduct would not render involuntary Maldonado's post-Miranda confession. "The Fifth Amendment privilege is not concerned 'with moral and psychological pressures to confess emanating from sources other than official coercion.'" Colorado v. Connelly, 479 U.S. at 170, 107 S.Ct. at 523 (quoting Oregon v. Elstad, 470 U.S. at 305, 105 S.Ct. at 1290); see also. e.g., United States v. Mullens, 536 F.2d 997, 1000 (2d Cir. 1976) (Record "bereft of any indication of police overreaching" where defendant admitted his guilt after it was defendant's "cousin, not the police, who notified appellant that his mother and father were being detained" leading him to go to police station and "blurt out" a statement); Vega v. Artuz, 97 Civ. 3775, 2002 WL 252764 at *11 (S.D.N.Y. Feb. 20, 2002) (Post-Miranda statement was voluntary where detectives statement to petitioner "in substance that his wife and mother were suspects because they were also in the household with the victim and that if the petitioner had done it, he should save his family further trouble . . . was not so coercive as to overbear [petitioner's] will.") ( cases cited therein.): United States v. Morrill, No. 97-CR-56.1998 WL135819 at *2 (W.D.N.Y. Mar. 11, 1998) (Confession was not involuntary where defendant's "concern for his brother and his brother's girlfriend and children" motivated his confession.).

61 Nor did Maldonado's counsel explain why the police would not directly threaten Maldonado with the loss of his unborn child, instead of engaging in this elaborate plot.

The Court also rejects any suggestion that because Maldonado was "very tired throughout the questioning," his post-Miranda confession was not voluntary. (E.g,. Dkt. No. 7: Maldonado Reply Br. at 3, ¶ 9.) Perez testified that during the entire time they were at the precinct, Maldonado was kept awake. (Perez: H. 196-97.) Detective Flannino testified to the contrary, that Maldonado spent most of the time at the precinct dozing on and off. (Flannino: H. 23-24, 26-27, 41, 83-84, 118.) The state suppression court specifically found Detective Flannino's testimony on this subject credible and Perez's contradictory testimony incredible. (H. 237-40: "I was waiting for [Maldonado] to fall asleep during the time that the video was taking place. He seemed sleepy you know is the only way I can put it so I find this officer's testimony for the most part the defendant was dozing on and of[f] to be credible and I find and I reject the testimony of [Perez] when she testified that during all this time the 18 hours they simply sat on their respective chairs and that was it.") Thus, this was not a case where the police intentionally kept a suspect awake for long periods so that he would be more easily manipulated into confessing. Maldonado was allowed to sleep; any tiredness here was of Maldonado's doing, not that of the police, and does not render his post-Miranda confession involuntary. See. e.g., United States v. Guzman, 11 F. Supp.2d 292, 298 (S.D.N.Y.) (petitioner's suggestion that he was coerced by sleep deprivation rejected where no evidence "to suggest that [petitioner] expressed any fatigue he felt, or that he indicated a desire to end the interrogation.") ( cases cited therein), aff'd, 152 F.3d 921 (2d Cir. 1998); United States v. DiLorenzo, 94 Cr. 303, 1995 WL 366377 at *8 (S.D.N.Y. June 19, 1995) ("[A] claim that a defendant was exhausted or suffering from the effects of alcohol is not, in the absence of coercive law enforcement activity, sufficient to characterize his confession as involuntary.") ( cases cited therein.); cf United States v. Ortiz, 99 CR 532, 1999 WL 1095592 at *3 (S.D.N.Y. Dec. 3, 1999) (Voluntariness claim failed for lack of "coercive police activity" where defendant alleged that "the effects of heroin withdrawal" prevented him from knowingly and voluntarily waiving his Miranda rights and that he had "informed the police of his 'condition.'".).

Therefore, "'in view of the totality of the circumstances, the detectives' conduct was entirely appropriate, and, indeed, there is nothing in the record to support a finding that the detectives' conduct prevented petitioner from freely and intelligently waiving his rights and agreeing to speak to the detectives' upon being given Miranda warnings."Legree v. Greiner, 2001 WL 527423 at *9 (quoting Vasquez v. Senkowski, 54 F. Supp.2d at 215-16) (conditions surrounding interrogation not coercive where petitioner voluntarily accompanied the police to the stationhouse from his apartment, was not handcuffed, questioning "did not last long" and "the conduct of the detectives conducting the questioning of petitioner was not coercive" or abusive); see also. e.g., Nova v. Bartlett, 211 F.3d at 709 (There has been no "evidence presented to indicate that the questioning of [petitioner] was coercive or that his statements were otherwise involuntary. His later, fully warned confessions were therefore admissible."); Diaz v. Senkowski, 76 F.3d 61, 63, 65 (2d Cir. 1996) (Totality of the circumstances indicated petitioner's statements were voluntary where "(1) [petitioner] was legally an adult; (2) there was no evidence that [petitioner] had below-average intelligence; (3) there was no evidence that [petitioner] was denied food, access to the bathroom, or sleep during his [stationhouse] interrogation; (4) [petitioner] was not beaten, otherwise abused, or even handcuffed; (5) the [four-hour] duration of the interrogation did not by itself establish that the statement was involuntary; and (6) '[t]he threat of speaking to [petitioner's grandmother] is not the type of coercion that, without more, would overbear a normal person's will and cause [him] to confess involuntarily . . .'"); Holland v. Donnelly, 216 F. Supp.2d 227, 231-34 (S.D.N.Y. 2002) (no coercion where petitioner voluntarily accompanied officers to police headquarters, never asked to leave, was not told by the police that he was or was not free to leave, spent the night at headquarters "sleeping in his chair at least some of that time," was twice offered food and drink in over 19 hours, was allowed to use the bathroom, was questioned not continuously but on four separate occasions.). aff'd, 324 F.3d 99 (2d Cir. 2003), cert. denied, No. 02-10678, 2003 WL 21303061, — S.Ct. — (U.S. Oct. 6, 2003); Grate v. Stinson, 224 F. Supp.2d 496, 505 (E.D.N.Y. 2002) (confession voluntary under the totality of the circumstances where petitioner was 20 years-old with a "very low IQ" but had prior experience with the criminal justice system, was handcuffed from the time of his arrest until completion of his written statement, was allowed to go to the bathroom and call his girlfriend and father and was taken to dinner, and there were "no allegations that the police beat [petitioner], confronted him with trumped-up or false evidence, or made false offers of leniency to him in exchange for his confession."); Wilson v. Walker, 2001 WL 1388299 at *4 (Post-Miranda statements admissible where petitioner was questioned for seven continuous hours but "was never told that he could not leave"; "was allowed to go to the bathroom unattended and was given food and drink"; "questioning . . . was not overly aggressive and did not employ trickery or deceit"; "nothing about [petitioner's] individual characteristics . . . made him particularly vulnerable to police interrogation"; and "there is no indication that [petitioner] did not understand his rights once he was given the [Miranda] warnings or that his waiver was not knowing and voluntary."); Richter v. Artuz, 77 F. Supp.2d at 396 (No coercion found where petitioner was "present at the police barracks for a considerable amount of time, [but] was questioned only intermittently and not continuously . . . was offered and refused food and drink. . . . [and] did not express his desire to leave . . . [or] to speak with an attorney. ").⁶²

62 The Court also notes that Maldonado never complained to the detectives about conditions at the precinct, asked to leave, or stated that he was tired or hungry. Nor did he testify at the suppression hearing to rebut Detective Flannino's version of events. See. e.g., Grate v. Stinson, 224 F. Supp.2d 496, 505 (E.D.N.Y. 2002) ("Importantly [in the court's voluntariness analysis], at no time during the interview did [petitioner] complain of the conditions of his interrogation. He did not take the witness stand, at the suppression hearing or at trial, to counter the version of events inside the interrogation room put forth by [the questioning detective].").

Maldonado has failed to demonstrate that the "totality of the circumstances" here rendered the Miranda warnings ineffective.⁶³ There is no evidence of psychological or other police coercion surrounding Maldonado's pre-Miranda statement which would taint his post-Miranda confessions. Maldonado's post-Miranda written and videotaped confessions were properly admitted at his trial.

63 The cases cited by Maldonado (Dkt. No. 7: Maldonado Reply Br. at 10-12) in support of his coercion claim are distinguishable. Lvnumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917 (1963); People v. Keene, 148 A.D.2d 977, 539 N.Y.S.2d 214 (4th Dep't 1989): People v. Helstrom, 50 A.D.2d 685, 375 N.Y.S.2d 189 (3d Dep't 1975), aff'd, 40 N.Y.2d 914, 389 N.Y.S.2d 366 (1976). Unlike Lvnumn. Helstrom, and Keene, in which the police explicitly and directly made threats to the petitioners, Maldonado only alleges coercion via a threat to his girlfriend that she allegedly passed on to him. The cases also are distinguishable because here the state court and this Court have found Perez's testimony to not be credible, found that no threat was made to her, and even if it was, it did not coerce Maldonado.

3. The Hearing Court Evaluated Maldonado's Confession Under the Correct Standard, And This Court's Independent Review of Maldonado's Confession Confirms That It Was Voluntary

Maldonado's third habeas claim is that his" conviction was based upon his involuntary confession" because he "was denied the right to a proper pre-trial hearing on the issue." (Dkt. No. 1: Pet. ¶ 12(C).) Maldonado alleges that the hearing court "was under the misimpression" that custody was a pre-requisite for involuntariness and "specifically refused to apply a totality of the circumstances evaluation." (Dkt. No. 1: Pet. ¶ 12(C).) Maldonado's petition alleges that:

The hearing court clearly articulated that it was under the misimpression that to find a statement to be involuntary it would first have to determine that custody existed. Counsel at the suppression hearing attempted to impart to the court that it was applying a standard particular to the Miranda question rather than analyzing under the circumstances whether the statements were coerced. However, the court specifically refused to apply the due process totality of the circumstances evaluation. In so doing it utilized an incorrect legal test and standard to determine whether petitioner's statements were voluntarily given. Accordingly, petitioner's fundamental constitutional rights protected by the Fifth and Fourteenth amendments to the United States Constitution were violated.

(Pet. ¶ 12(C).) This Court finds that the hearing court did apply the correct standard and considered the totality of the circumstances. Even if the hearing court may have been under the initial impression that custody was a pre-requisite to involuntariness as Maldonado claims, the court specifically asked defense counsel to state the appropriate standard and responded by conveying its understanding of counsel's position:

THE COURT: What's the standard?

[DEFENSE COUNSEL]: The standard is People v. Yuk[l] where an innocent person of any crime wouldn't believe that he was free to leave.

. . . .

I submit [that] as to the issue of voluntariness, that there is no way that the People can have satisfied you beyond a reasonable doubt that these confessions were voluntary . . .

THE COURT: Yes, I know what you mean.

(H. 211, 218.) Defense counsel then moved on to argue the Miranda issue, but continued to emphasize to the court the distinction between Maldonado's claims under Miranda and his Voluntariness claims. (H. 218.) Again, the court showed its understanding of counsel's argument:

[DEFENSE COUNSEL]: If there is anything following that, the reading of his Miranda rights and signing the Miranda card, obviously there is no Miranda issue. I am not disputing that my client was read his rights and signed the card, but I submit they were involuntary because of the psychological injuries that had been brought to bear the whole day. And if they were involuntary, Miranda is not a cure. You cannot cure a voluntariness issue by Miranda, Miranda cures the right to counsel issue. It cures the Fifth Amendment issue. It does not cure a voluntariness issue.

. . . .

This issue is whether his will was over born [sic] by the conduct of the police officers and I submit that it was and I submit that the People have clearly not maintained their burden of proof that that was not the way this statement was elicited.

THE COURT: Okay.

(H. 218-20.)

Furthermore, it is not the suppression court's colloquy with counsel but its decision that controls. The suppression court's holding plainly shows consideration of the totality of the circumstances that defense counsel argued, and clearly considered both voluntariness and Miranda issues, separately. See. e.g., United States v. Cerreta, No. 02-1527, 63 Fed. Appx. 585, 587, 2003 WL 21105365 at *2 (2d Cir. May 15, 2003). The suppression court found that all three individuals went to the precinct voluntarily, none of the them were handcuffed, the police provided food "much before 12:00" midnight, and "that nobody was coerced under the circumstances." (H. 232-33, 236). In its holding on the issue of voluntariness, the court also specifically rejected the allegation of psychological coercion, commented on Maldonado's sleepiness, noted that Detective Flannino's testimony was investigatory rather than accusatory, and found that the Detectives did not engage in an illegal activity during questioning. (H. 232-40.) The court stated:

[T]he issue, number 1. is whether one can in anyway come to a conclusion that the statement made by the defendant was not voluntary, And clearly it was voluntary in the traditional sense in that he was not physically [coerced.] There was no allegation here that there was physical coercion. So the allegation by [defense counsel] as I understand it is that because of the psychological pressure or mental pressure under which the defendant was placed the statement made by the defendant was the result of that kind of coercion,

I don't buy it, It seems to me and I so find that this testimony by the detective that for the most time that the defendant was in the precinct he spent sleeping or dozing on and off is to a great extent corroborated, 1, by the fact that the defendant had been admittedly using drugs. 2. That he had gone to sleep rather late the night before. And also the fact that even when he was being video taped during his confession to the Assistant he kept on yawning.

. . . I was waiting for him to fall asleep during the time that the video was taking place. He seemed sleepy you know is the only way I can put it so I find this officer's testimony for the most part the defendant was dozing on and of[f] to be credible and I find and I reject the testimony of [Perez] when she testified that during all this time the 18 hours they simply sat on their respective chairs and that was it.

So I don't see that there is any basis whatsoever here to find that the defendant was in anyway coerced.

It seems to me that when, that what this detective did was simply to investigate the issue of what ever happened to the decedent and while it is true he knew that she had been the victim of a homicide, there was no reason that I can see . . . for him to have any problem at all to come to the conclusion that it was the defendant who had done it, no more than it was Mr. Wessler who had done it.

So, I don't understand why the focus would be on the defendant. It seems to me that the whole idea behind the investigation was simply to find out what happened, if these three individuals knew what had really happened to Ms. Padilla and how she ended up dead in the compactor. And the detective did what he did and I don't see how that engages in any kind of illegal activity that would lead me to conclude that these statements have to be suppressed.

(H. 237-40, emphasis added.) Accordingly, the Court finds that the hearing court properly considered the "totality of the circumstances" and found that Maldonado's confession was voluntary.

In any event, this Court's analysis (see pages 73-85 above) has found Maldonado's confessions voluntary.

4. Maldonado's Appellate Counsel Was Not Ineffective Because The Claims Maldonado Claims Counsel Should Have Raised are Meritless

Because each of the grounds on which Maldonado bases his ineffective assistance of appellate counsel claim lacks merit, appellate counsel's failure to raise those claims on direct appeal does not constitute ineffective assistance. See. e.g., Diaz v. Senkowski, 76 F.3d 61, 66 (2d Cir. 1996) (Where Second Circuit held that petitioner's substantive coerced confession claims lacked merit, "[wjhatever deficiencies there may have been in state appellate counsel's performance . . ., they could not have had any bearing on the outcome [of petitioner's appeal] in view of our conclusion [that] . . . the confession was not involuntary."):Castro v. Miller, 01 Civ. 8967, 2002 WL 31556381 at *2 (S.D.N.Y. Nov. 15, 2002) (Court found "no basis for finding that appellate counsel was ineffective in failing to assert [the arguments that petitioner claims counsel should have raised] and even less basis for concluding that had they been advanced, petitioner's conviction would have been reversed."):Thompson v. Lord, No. CIVA997CVO792, 2002 WL 31678312 at *15 (N.D.N.Y. Nov. 8, 2002) (where "appellate counsel had no legal basis upon which to challenge . . . the admissibility of [petitioner's] statement[s]" Appellate Division's rejection of "petitioner's coram nobis application was neither contrary to, nor an unreasonable application of, Strickland."): Key v. Artuz, No. 99-CV-161, 2002 WL 31102627 at * 10 (E.D.N. Y. Sept. 16, 2002) (Where court "concluded that the claims relating to the videotaped confession have no merit,. . . petitioner cannot demonstrate that . . . there was a reasonable probability of a different outcome on appeal had appellate counsel raised these issues."); Harvey v. Portuondo, No. 98-CV-7371, 2002 WL 2003210 at *6, 8 (E.D.N.Y. Aug. 5, 2002) (Petitioner's ineffective assistance of appellate counsel claim is meritless where "the reason this coerced confession claim was never raised in state court is obvious from the petitioner's own statements. He never asserted facts that could amount to coercion." Ineffective assistance of appellate counsel claim fails because "there was no Fifth Amendment violation."); see also. e.g., United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance."), cert. denied. 531 U.S. 811, 121 S.Ct. 33 (2000); United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir.) ("the failure to make a meritless argument does not rise to the level of ineffective assistance"), cert. denied, 516 U.S. 927, 116 So. Ct. 330 (1995); United States v. Moland, No. 94-1032, 39 F.3d 1193 (table), 1994 WL 600985 at *2 (10th Cir. Nov. 3, 1994) ("counsel cannot be ineffective for not pursuing a strategy doomed to failure"); Cuevas v. Henderson, 801 F.2d 586, 592 (2d Cir. 1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354 (1987); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at * 22 (S.D.N.Y. Oct. 22, 2003) (Peck, MJ.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *53 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Rosarjo v. Bennett, 01 Civ. 7142, 2002 WL31852827 at*35 n. 61 (S.D.N.Y Dec. 20, 2002) (Peck, MJ.) ("counsel cannot be faulted for failure to make a meritless objection"); Ennis v. Walker, OO Civ. 2875, 2001 WL 409530 at *22 (S.D.N.Y. Apr. 6, 2001) (Peck, MJ.) ("Because there would have been no merit to any of the objections [petitioner] contends defense counsel should have made, counsel's failure to object does not constitute ineffective assistance."); Franza v. Stinson, 58 F. Supp.2d 124, 148 (S.D.N.Y. 1999) (Kaplan, DJ. Peck, MJ.).⁶⁴

64 See also. e.g., Duncan v. Greiner, 97 Civ. 8754, 1999 WL 20890 at *10 (S.D.N.Y. Jan. 19, 1999) (since trial counsel's objection would have been fruitless, "the failure to so object is not evidence of ineffective assistance of counsel"); Perez v. United States, 89 CR 800, 96 Civ. 7702, 1997 WL 661426 at *4 (S.D.N.Y. Oct. 23, 1997) ("Defense counsel's failure to object, then, cannot have resulted in actual prejudice to petitioner, as the objection would have been meritless."): United States v. Corcoran, 855 F. Supp. 1359, 1368 (E.D.N.Y. 1994) (where identification found not improper, "counsel's failure to pursue the motion to suppress the in-court identification clearly did not deny defendant the effective assistance of counsel."), aff'd, 100 F.3d 944 (2d Cir.), cert. denied, 517 U.S. 1228, 116 S.Ct. 1864(1996); Arce v. Smith, 710 F. Supp. 920, 926-27 (S.D.N. Y.) (inasmuch as there was no constitutional error or reversible error under state law, petitioner was not prejudiced by counsel's failure to object and counsel was not ineffective), aff'd, 889 F.2d 1271 (2d Cir. 1989), cert. denied. 495 U.S. 937, 110 S.Ct. 2185 (1990).

CONCLUSION

For the reasons set forth above, Maldonado's habeas petition should be DENIED, and a certificate of appealability should not issue.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kimba M. Wood, 500 Pearl Street, Room 1610, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Wood. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd,. 838 F.2d 55, 57-59 (2dCir. 1988): McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).