Conklin v. Huliman
OPINION AND ORDER: For the foregoing reasons, the Petition is denied. The remaining issue is whether to grant a certificate of appealability ("COA"). For a COA to issue, a petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to show that he would prevail on the merits, but merely that reasonable jurists could disagree as to whether "the petition should have been resolved in a different manner or [whether] the issues presented were 'adequate to deserve encouragement to proceed further."' Petitioner has made no showing. Thus, I decline to grant a COA. The Clerk of the Court is directed to close this Petition and this case. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/17/2015) (ajs)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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OPINION AND ORDER
- against l 1-cv-4635 (SAS)
SUPERINTENDENT WILLIAM F.
HULIHAN, Mid-State Correctional Facility,
SHIRA A. SCHEINDLIN, U.S.D.J.:
Petitioner Joshua Conklin brings this pro se habeas corpus petition
pursuant to section 2254 of Title 28 of the United States Code challenging his state
court conviction following a jury trial in New York County Court, Orange
County. 1 After being convicted of burglary in the second degree2 and grand
See Petition for a Writ of Habeas Corpus at l; Respondent's
Memorandum of Law at 1.
See N.Y. Penal Law§ 140.25.
larceny in the fourth degree,3 Conklin was sentenced to concurrent terms of eight
years for the burglary conviction and two to four years for the grand larceny
conviction, as well as five years post-release supervision.4
On June 13, 2011, Conklin filed the instant Petition, challenging his
conviction on the following grounds: (1) juror misconduct; (2) ineffective
assistance of counsel; (3) the conviction was based on insufficient evidence and/or
was against the weight of the evidence; and (4) his incriminating statements were
not voluntary. For the following reasons, the Petition is denied.
The Offending Conduct and Arrest
The crimes underlying Conklin’s conviction occurred on September
13, 2007.5 At approximately 12:30 p.m., Shaun Parker noticed a person riding a
bicycle through a parking lot next to the home of his parents, Don and Esther
Parker, who were out at the time.6 Parker walked around the house and saw the
same bicycle laying in the backyard.7 Parker noticed that the back door was open,
See id. § 155.30.
See 7/9/08 Transcript of Sentencing Proceeding at 11.
See Jury Trial Transcript at 275–290.
See id. at 299–300, 304.
See id. at 306–308.
called the police, and reported that someone was in the house.8 Conklin then came
out of the house through the open back door.9 Parker yelled at him, asking what he
was doing in the house, and Conklin yelled back that he was looking for Mr.
Parker.10 Parker then told Conklin that the police were on their way.11 Conklin ran
away, and Parker chased him, while calling the police on his cell phone.12
Officer Kelly Decker arrived, and Parker told him that Conklin was
behind the house located on Seward Avenue next to Church Street Park.13 Decker
drove to the park, walked to the entrance, and saw Parker about 300 to 400 feet
away at the other end of the park.14 Decker saw Parker jump over the fence and
start to run.15 Decker chased him and took him into custody.16 Detective Worden,
See id. at 309, 311.
See id. at 312.
See id. at 313.
See id. at 313–314.
See id. at 278, 314.
See id. at 278.
See id. at 278–279.
See id. at 284.
several other officers, and Parker all arrived at that time.17 Conklin looked at
Worden and said that all he did was go into Mr. Parker’s house and look around.18
Worden told Decker to take Conklin to the station and that no one was to talk to
him until Worden returned.19 Worden went back to the home and saw Don
Parker’s wallet on top of a dresser.20 Another officer found Don Parker’s credit
card on the ground near the fence that Conklin had climbed over, and reported it to
While driving to the station, Conklin asked Decker what was going
on.22 Decker stated that Conklin would have to talk to somebody, and Conklin
replied that Mr. Parker had told him to come in.23 Decker stated that he was not
asking any questions and that Conklin would have to speak with the detective at
See id. at 332.
See id. at 333.
See id. at 327–328.
See id. at 285.
See id. at 285–286.
At the police station, Worden advised Conklin of his Miranda rights,
which Worden read from a preprinted card.25 Worden read each right separately,
asked Conklin if he understood, and Conklin nodded his head up and down to
indicate that he understood.26 Conklin then agreed to speak with Worden.27
Conklin admitted that he had gone into the home and taken a credit card, and
signed a written statement to that effect.28
Later that day, Conklin was brought to the medical unit for an urgent
medical assessment.29 Conklin told Gina Barbusci, a registered nurse, that he had
taken three OxyContin, 80 milligrams each, and then another three at around noon
that day.30 Barbusci examined Conklin and found that his pupils were constricted
and did not react to light, that he appeared pale, and that he had an altered mental
status.31 Based on this, Barbusci sent Conklin to the emergency room for further
See id. at 336.
See id. at 337–338.
See id. at 340.
See id. at 340–341.
See id. at 394.
See id. at 398.
See id. at 399–400.
evaluation.32 At the emergency room, Patricia Moran, a registered nurse, examined
Conklin and found him alert and without slurred speech.33 Conklin was discharged
less than two hours later.34
On June 5, 2008, Conklin was convicted by a jury of second degree
burglary and fourth degree grand larceny.35 Conklin appealed his conviction to the
Appellate Division, Second Department, raising the following claims: (1) the trial
court should have granted the motion to suppress Conklin’s statements; (2) the trial
court should have granted Conklin’s request for assignment of new counsel; and
(3) the burglary conviction was based on insufficient evidence and/or was against
the weight of the evidence.36
On March 2, 2010, the Appellate Division unanimously affirmed
Conklin’s conviction.37 Conklin then submitted a letter seeking leave to appeal to
See id. at 403.
See id. at 450.
See id. at 451.
See Affirmation in Opposition to a Petition for a Writ of Habeas
Corpus ¶ 3.
See Appellant’s Brief, Ex. 6 to Respondent’s Record of Exhibits.
See People v. Conklin, 897 N.Y.S.2d 149 (2d Dep’t 2010).
the New York Court of Appeals, raising the same issues, which was denied on June
15, 2010.38 Conklin then filed a motion under New York Criminal Procedure Law
section 440.10, seeking to vacate judgment on the grounds of juror misconduct and
ineffective assistance of counsel.39 On April 27, 2011, the County Court denied the
motion, because the issues could have been raised on a direct appeal.
Deferential Standard for Federal Habeas Review
This petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (the “AEDPA”). The AEDPA provides that a federal court
may not grant a writ of habeas corpus to a prisoner in custody40 pursuant to the
judgment of a state court with respect to any claim, unless the state court’s
adjudication on the merits of the claim: “(1) was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
See Certificate Denying Leave, Ex. 10 to Respondent’s Record of
See Motion to Vacate Judgment, Ex. 11 to Respondent’s Record of
The meaning of “in custody” is not limited to situations where an
individual is being held in prison or jail. A person is also considered “in custody”
where, as here, the person is on probation or parole. See Jones v. Cunningham,
371 U.S. 236, 239–41 (1963).
Supreme Court of the United States;”41 or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
A state-court decision is contrary to clearly established federal law, as
determined by the Supreme Court, in the following two instances:
First, a state-court decision is contrary to this Court’s precedent if
the state court arrives at a conclusion opposite to that reached by
this Court on a question of law. Second, a state-court decision is
also contrary to this Court’s precedent if the state court confronts
facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to ours.43
With regard to the “unreasonable application” prong, the Supreme
Court has stated:
[A] state-court decision can involve an “unreasonable application”
of this Court’s clearly established precedent in two ways. First,
a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing
legal rule from this Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case. Second, a statecourt decision also involves an unreasonable application of this
Court’s precedent if the state court either unreasonably extends a
legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that principle
28 U.S.C. § 2254(d)(1).
Id. § 2254(d)(2).
Williams v. Taylor, 529 U.S. 362, 405 (2000).
to a new context where it should apply.44
In order for a federal court to find a state court’s application of
Supreme Court precedent to be unreasonable, the state court’s decision must have
been more than incorrect or erroneous. Rather, “[t]he state court’s application of
clearly established law must be objectively unreasonable.”45 This standard “‘falls
somewhere between merely erroneous and unreasonable to all reasonable
jurists.’”46 While the test requires “‘[s]ome increment of incorrectness beyond
error, . . . 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.’”47
Furthermore, section 2254(d) applies to a defendant’s habeas petition even where
the state court order does not include an explanation of its reasoning.48
Where a state court’s decision is unaccompanied by an
Id. at 407.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (emphasis added).
Accord Renico v. Lett, 559 U.S. 766, 773 (2010) (stating that “[t]his distinction
creates ‘a substantially higher threshold’ for obtaining relief than de novo review”)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Williams, 529 U.S. at
409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones
v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999)).
See Harrington v. Richter, 562 U.S. 86, 98 (2011).
explanation, the habeas petitioner’s burden still must be met by
showing there was no reasonable basis for the state court to deny
relief. This is so whether or not the state court reveals which of
the elements in a multipart claim it found insufficient, for
[section] 2254(d) applies when a “claim,” not a component of one,
has been adjudicated.49
Section 2254(d) also applies where a state court does not explicitly
state in its opinion that it is adjudicating a claim on the merits.50 “When a federal
claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”51
The deferential standard of review created by the AEDPA also
extends to state-court factual determinations. Such determinations are presumed to
be correct, and the petitioner must rebut them by clear and convincing evidence.52
Id. (citing, inter alia, Sellan v. Kuhlman, 261 F.3d 303, 311–12 (2d
Cir. 2001) (“[W]hen a state court fails to articulate the rationale underlying its
rejection of a petitioner’s claim, and when that rejection is on the merits, the
federal court will focus its review on whether the state court’s ultimate decision
was an unreasonable application of clearly established Supreme Court precedent.”
(quotation marks and citation omitted))).
Id. at 99.
See 28 U.S.C. § 2254(e)(1).
Section 2254 provides that a habeas petition by a state prisoner may
not be granted unless “the applicant has exhausted the remedies available in the
courts of the State.”53 In order to satisfy this exhaustion requirement, a prisoner
must have “‘fairly presented to an appropriate state court the same federal
constitutional claim that he now urges upon the federal courts,’”54 either in the
form of “explicit constitutional arguments” or simply by “alleging facts that fall
‘well within the mainstream of constitutional litigation.’”55 Fair presentation of a
claim, for exhaustion purposes, includes petitioning for discretionary review in the
state’s highest appellate court.56 However, “a federal habeas court need not require
that a claim be presented to a state court if it is clear that the state court would hold
the claim procedurally barred.”57 In such cases, a district court may deem the
Id. § 2254(b)(1)(A).
Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quoting Klein v.
Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir.
1995) (quoting Dave v. Attorney Gen., 969 F.2d 186, 192 (2d Cir. 1982) (en
See O’Sullivan v. Boerckel, 526 U.S. 838, 847–48 (1999); see also
Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005) (stating that in New York,
exhaustion requires that a “criminal defendant . . . first appeal his or her conviction
to the Appellate Division, and then . . . seek further review of that conviction by
applying to the Court of Appeals for a certificate granting leave to appeal”).
Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997).
claims to be exhausted.58
When a habeas petition under the AEDPA contains both exhausted
and unexhausted claims, a district court “can offer the petitioner ‘the choice of
returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims.’”59 A district court may also
deny a petition on the merits, even if it contains unexhausted claims.60 The
Supreme Court has noted that “plainly meritless” claims should be denied on the
merits rather than dismissed for failure to exhaust.61 Finally, in limited
circumstances, a district court may stay a mixed petition and hold it in abeyance
until it has been properly presented to the state courts.62
Under the adequate and independent state ground doctrine, if the last
state court to render judgment clearly and expressly states that its judgment rests
McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002) (quoting
Rose v. Lundy, 455 U.S. 509, 510 (1982)).
See 28 U.S.C. § 2254(b)(2).
Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that in light of the
discretion to deny unexhausted claims on the merits, the decision to stay a habeas
petition to allow a petitioner to exhaust plainly meritless claims would be an abuse
See id. at 277–78.
on a state procedural bar, federal habeas review is precluded.63 Even if the state
court alternatively rules on the merits of the federal claim, federal habeas review is
precluded if an adequate and independent state ground would bar the claim in state
court.64 Federal habeas review of procedurally barred claims is foreclosed unless
the prisoner can demonstrate either (1) “‘cause for the default and actual
prejudice;’” or (2) “‘that failure to consider the claims will result in a fundamental
miscarriage of justice.’”65 To show cause for a default, a prisoner must put forth
some objective factor, external to the defense, explaining why the claim was not
previously raised.66 The Supreme Court has provided little guidance as to what
constitutes “prejudice,” but it can be inferred that prejudice is shown when the
claim, if proven, would bear on the petitioner’s guilt or punishment.67 The
See Jones v. Duncan, 162 F. Supp. 2d 204, 210 (S.D.N.Y. 2001)
(citing Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997)).
See, e.g., Harris v. Reed, 489 U.S. 255, 264 n.10 (1989); Garcia v.
Lewis, 188 F.3d 71, 72–82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d 721, 724–25
(2d Cir. 1996).
Glenn, 98 F.3d at 724 (quoting Coleman v. Thompson, 501 U.S. 722,
750 (1991)). Accord Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991); Epps v.
Commissioner of Corr. Servs., 13 F.3d 615, 617–18 (2d Cir. 1994).
See Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999).
See Banks v. Dretke, 540 U.S. 668, 671 (2004) (stating that “prejudice
within the compass of the ‘cause and prejudice’ requirement exists when
suppressed evidence is ‘material’ for Brady purposes” (quoting Strickler v. Greene,
527 U.S. 263, 281–82 (1999))).
fundamental miscarriage of justice exception to the procedural bar rule is available
only upon a showing of actual innocence.68 Finally, a habeas petitioner may not
avoid the exhaustion requirement by waiting until federal habeas review to bring
claims properly raised in state court. If such claims would be procedurally barred
on the state level, they are deemed exhausted and procedurally defaulted for the
purposes of federal habeas review.69
Sufficiency of the Evidence
The Due Process Clause of the Fourteenth Amendment prohibits
conviction “except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which [the defendant] is charged.”70 A habeas corpus
petitioner is therefore entitled to relief when the federal court determines that
“upon the record evidence adduced at the trial no rational trier of fact could have
found proof of guilt beyond a reasonable doubt.”71 The evidence must be viewed
See Murray v. Carrier, 477 U.S. 478, 496 (1986) (“[W]e think that in
an extraordinary case, where a constitutional violation has probably resulted in the
conviction of one who is actually innocent, a federal habeas court may grant the
writ even in the absence of a showing of cause for the procedural default.”).
See Coleman, 501 U.S. at 735 n.1; see also Woodford v. Ngo, 548
U.S. 81, 92–93 (2006).
In re Winship, 397 U.S. 358, 364 (1970).
Jackson v. Virginia, 443 U.S. 307, 324 (1979).
in the light most favorable to the prosecution.72
In New York, a person is guilty of burglary in the second degree when
he knowingly enters or remains unlawfully in a building with the intent to commit
a crime therein and when the building is a dwelling.73
Juror Misconduct and Ineffective Assistance of Counsel (Grounds
1 and 2)
Conklin alleges that his Sixth Amendment rights were violated by
juror misconduct — because he alleges a member of the jury was friends with the
victim — and by ineffective assistance of counsel. First, Conklin argues that one
member of the jury stated that she and her family were friends with the victim and
did business with him, but does not identify the particular juror. Second, Conklin
contends in his petition that his counsel was constitutionally deficient because he
did not allow a subpoenaed witness to testify, and instead told the witness outside
of the courtroom that his testimony was not needed.74
See id. at 319.
N.Y. Penal Law § 140.25.
Conklin also argues in his reply that the trial court should have
granted his request for assignment of new counsel. “It is well settled . . . that a
party may not raise an argument for the first time in a reply brief.” Concepcion v.
United States, 181 F. Supp. 2d 206, 231 (E.D.N.Y. 2002). Moreover, this
argument has no merit, as a review of the record indicates that the Appellate
Conklin has failed to satisfy the exhaustion requirement for these
claims. Though Conklin raised them in a post-judgment motion under section
440.10, he did not seek leave to appeal after his motion was denied.75 Therefore,
the claims are unexhausted.76 However, both claims may be deemed exhausted, as
there is no further state remedy. The time to appeal the denial of his motion has
run. Even if he could seek leave to appeal, it is clear that an appellate court would
hold that the claims are procedurally barred. Section 440.10(2)(c) “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.”77
Conklin is therefore deemed to have exhausted these claims.
For the same reasons, the claims are procedurally barred. As
discussed above, “the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims
procedurally barred,” and therefore the claims are procedurally defaulted.78
Division correctly determined that Conklin failed to demonstrate good cause for
substitution of counsel.
See N.Y. Crim. Proc. Law § 450.15.
See O’Sullivan, 526 U.S. at 847–48.
Reyes, 118 F.3d at 139.
Coleman, 501 U.S. at 735.
Conklin has shown no cause for his failure to raise these claims on direct appeal,
nor is there a fundamental miscarriage of justice.
Conklin’s claims regarding juror misconduct and ineffective
assistance of counsel are therefore denied.
Sufficiency of the Evidence (Ground 3)
Conklin argues his burglary conviction was based on insufficient
evidence and/or against the weight of the evidence. Specifically, Conklin contends
that the evidence was insufficient to establish that he entered the residence
unlawfully with the intent to commit a crime therein. The Appellate Division
found that there was a “valid line of reasoning and permissible inferences which
could lead a rational person to the conclusion reached by the fact finder on the
basis of the evidence of trial.”79 Reviewing the evidence under the deferential
standard of review, I conclude that the Appellate Division’s decision is not
contrary to or an unreasonable application of clearly established federal law.
The jury heard evidence that Conklin entered the Parker residence
when no one was home, and that Conklin had spoken with Don Parker earlier that
day and knew Parker had left his wallet at home. The jury also heard evidence that
Conklin ran from the scene after Shaun Parker told him that he had called the
Conklin, 897 N.Y.S.2d at 150 (citations omitted).
police. Based on this evidence, a rational fact finder could infer that Conklin
entered the house unlawfully with the intent to commit a crime. Because there is
sufficient evidence in the record to allow a rational juror to find that Conklin
committed each element of the crime beyond a reasonable doubt, the state court’s
decision is not contrary to or an unreasonable application of clearly established
Conklin’s alternative claim that the conviction is against the weight of
the evidence is not properly before this Court. A federal habeas court cannot
address “weight of the evidence” claims because “a challenge to a verdict based on
the weight of the evidence is different from one based on the sufficiency of the
evidence. Specifically, the ‘weight of the evidence’ argument is a pure state law
claim . . . whereas a legal sufficiency claim is based on federal due process
Conklin’s claims regarding the sufficiency of the evidence are
Voluntariness of Conklin’s Statements
Conklin makes two separate arguments relating to the voluntariness of
his statements. First, he argues that the statements he made at the scene and in the
Douglas v. Portuondo, 232 F. Supp. 2d 106, 116 (S.D.N.Y. 2002).
patrol car should have been suppressed because he had not been given Miranda
warnings. Second, he contends that the statements he made after receiving
Miranda warnings and waiving his rights should have been suppressed because his
waiver was not voluntary.
The trial court determined in a pre-trial hearing that Conklin’s initial
statements were spontaneous. Detective Worden testified that as he approached
Conklin, Conklin stated “I didn’t do anything but walk around Mr. Parker’s
house.” This statement was not in response to any question from Worden.
Similarly, in the patrol car, Conklin stated, “I only went into his house. Mr. Parker
told me to come in.” Officer Decker, who was driving the patrol car, testified that
he did not ask Conklin any questions — in fact, he informed Conklin that he was
not asking him any questions. Based on this evidence, the trial court found that,
although Conklin was in custody at the time, the statements were not made as a
response to any interrogation, and therefore Miranda warnings were not required.
I find no error in this conclusion. Miranda warnings are required only
when a person in custody is subjected to “express questioning or its functional
equivalent.”81 The trial court found, based on his evaluation of the witnesses’
testimony, that Conklin’s statements were spontaneous, and not in response to any
Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980).
interrogation. As such, Miranda warnings were not necessary, and the trial court
did not err in admitting the statements.
The trial court next concluded that Conklin’s statements made in the
police station after receiving Miranda warnings and waiving his right against selfincrimination and his right to a lawyer were voluntary and admissible. Conklin
argued that he was under the influence of drugs — specifically OxyContin, a
powerful narcotic — and therefore was in such an altered mental state that he could
not knowingly and intelligently waive his rights. The Appellate Division affirmed
the trial court’s ruling.
“To establish a valid waiver [of these rights], the State must show that
the waiver was knowing, intelligent, and voluntary . . . .”82 In reviewing a
determination of voluntariness, a habeas court must distinguish between questions
of law and questions of fact. As the Seventh Circuit has explained:
The ultimate issues of . . . whether a waiver of Miranda rights is
voluntary are issues of law reviewed de novo. The determination
of the historical facts is the proper domain of the trial court. . . .
[F]requently the State and the petitioner offer conflicting
testimony as to what the historical facts were. Thus, even though
the ultimate issue of voluntariness is a question of law, the state
court’s determination regarding factual issues are presumed
Maryland v. Shatzer, 599 U.S. 98, 104 (2010).
correct under 28 U.S.C. § 2254[e].83
At the pre-trial hearing, several witnesses testified that Conklin did
not appear to be in an altered mental state. Moreover, Worden testified that when
he administered the Miranda warnings, he paused between each provision, looked
at Conklin, and asked him if he understood.84 Conklin nodded his head up and
down to indicate his understanding of each provision.85 After speaking with
Conklin for a few minutes, Worden typed a statement and gave it to Conklin.86
Conklin took the statement and appeared to read each page.87 Worden then asked
Conklin to read aloud the last two questions on the third page of the statement, and
to write his responses and initial next to them.88 Worden testified that Conklin
appeared coherent and healthy.89
Conklin presented two witnesses to testify to his altered mental state.
Everett v. Barnett, 162 F.3d 498, 500 (7th Cir. 1998) (citations
See Hearing Transcript at 35.
See id. at 37.
See id. at 38.
See id. at 39–40.
See id. at 50.
The first, Officer Conklin (no relation to defendant), testified that he checked a box
on a form indicating that Conklin was apparently under the influence of alcohol or
drugs.90 Officer Conklin stated that he checked the box because Conklin told him
that he had taken prescribed OxyContin, but that Conklin appeared responsive,
understood the questions he was asked, and did not have any impaired motor
coordination or slurring of his speech.91 The second witness, Gina Barbusci, was
the only witness to state that Conklin appeared to be in an altered mental state. She
testified that his pupils were constricted and did not respond normally to light, and
that he was pale.92 She also testified that he seemed confused and disoriented
because he appeared to be confused about how many pills he had taken that day.93
Based on this evidence, the trial court found that almost all evidence
of the defendant’s alleged intoxication was self-reported. In reviewing Barbusci’s
testimony, the court concluded that the only empirical evidence of his intoxication
was Conklin’s constricted pupils, which Barbusci testified could have been normal
for someone taking a prescribed course of OxyContin. Weighing all of the
See id. at 71.
See id. at 71–73, 77.
See id. at 87–89.
See id. at 89.
testimony, the court concluded that Conklin voluntarily waived his rights, and
therefore the statements were admissible.
This Court must presume that the trial court’s factual determinations,
based on credibility determinations, are correct. Based on the testimony of the
witnesses, the trial court determined that Conklin was not in an altered mental state
and waived his rights voluntarily. The evidence discussed above supports this
determination. Thus, the Appellate Division’s conclusion that the statements were
voluntary is not contrary to or an unreasonable application of clearly established
Conklin’s claim that his statements were not voluntary is therefore
For the foregoing reasons, the Petition is denied. The remaining issue
is whether to grant a certificate of appealability (“COA”). For a COA to issue, a
petitioner must make a “substantial showing of the denial of a constitutional
right.”94 A “substantial showing” does not require a petitioner to show that he
would prevail on the merits, but merely that reasonable jurists could disagree as to
whether “the petition should have been resolved in a different manner or [whether]
28 U.S.C. § 2253(c)(2).
the issues presented were 'adequate to deserve encouragement to proceed
further. "'95 Petitioner has made no showing. Thus, I decline to grant a COA. The
Clerk of the Court is directed to close this Petition and this case.
New York, New York
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks and citation omitted)).
Accord Middleton v. Attorneys Gen. of the States ofNew York and Pennsylvania,
396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not
debate whether the district court's dismissal of the petition was correct).
- Appearances Petitioner (Pro Se):
c/o Michelle Cayo, Parole Officer
201 South James Street, Basement Level
Peekskill, NY 10566
Andrew R. Kass
Assistant District Attorney, Orange County
15 Matthews Street
Goshen, NY 10924
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