McKeon v. Heath

Filing 17

-CLERK TO FOLLOW UP-ORDER denying 9 Motion to Stay with prejudice; denying the Petitioner's request for a writ of habeas corpus; and dismissing the petition. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 10/29/13. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RICHARD J. McKEON, Jr.,
Petitioner,
-vs-

No. 1:12-CV-0485(MAT)
DECISION AND ORDER

P.D. HEATH, Superintendent,
Respondent.

I.

Introduction
Richard J. McKeon, Jr. (“McKeon” or “Petitioner”) has filed a

pro se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, alleging that he is being held in Respondent’s custody in
violation of his federal constitutional rights. Petitioner is
incarcerated following a judgment entered on February 27, 2009, in
New York State, Orleans County Court, convicting him, after a
guilty plea, of Manslaughter in the First Degree (N.Y. Penal Law
§ 125.20(2)).
II.

Factual Background and Procedural History
A.
On

Overview
March

7,

2008, the

charred

body

of

Maureen

Migliore

(“Migliore” or “the victim”) was found along a road in the Town of
Barre in Orleans County, New York. Migliore had been strangled to
death and then doused with an accelerant and set on fire. By the
following day, the police had identified McKeon, who had been the
victims’s boyfriend, as the sole suspect. On March 8, 2008, the
police executed a search warrant at Petitioner’s home on Route 240

in the Town of West Valley in Cattaraugus County and seized several
items incriminating him in the crime. McKeon also voluntarily made
several incriminating statements to the police, although he did not
expressly admit to murdering his girlfriend.
On March 31, 2008, an Orleans County grand jury charged McKeon
with second degree (intentional) murder (N.Y. Penal Law § 125.25(2)
and unlawful transportation of human remains (N.Y. Public Health
Law § 4144(1).
B.

The Suppression Hearing

A suppression hearing pursuant to People v. Huntley, 15 N.Y.2d
72 (1965), was conducted on July 15, 2008, and July 24, 2008.
New York State Police Investigator Joshua Keats (“Inv. Keats”) and
Orleans County District Attorney’s Office Investigator Joseph Sacco
(“Inv. Sacco”) testified that they traveled to McKeon’s home on
Route 240 to speak with him about Migliore’s disappearance. After
inviting the officers inside, McKeon stated that he had last seen
Migliore during the afternoon of March 6, 2008. She had packed her
belongings in Wal-Mart shopping bags, walked to the end of the
driveway, and turned left. McKeon said he had not seen Migliore
since that time.
McKeon explained that he was a police officer and had begun
his day on March 6, 2008, by working at traffic court. Later that
day,

he

went

to

the

hospital

to

see

his

daughter,

who

was

undergoing cancer surgery. While there, he spoke to Migliore on the

-2-

phone numerous times; they had argued because Migliore was jealous
of the time he was spending with his daughter and ex-wife.
When he returned home later that night, they talked and agreed
to end their relationship. After returning some jewelry to him,
Migliore left his house on foot with her belongings packed in
Wal-Mart bags. McKeon mentioned that Migliore’s ex-husband had once
poured gasoline on her and set her afire; she still had scars on
her neck from that attack.
The investigators asked McKeon whether he would be willing to
accompany them to the police barracks. McKeon asked if he was in
trouble and inquired whether he would be permitted to return home
after the interview. Inv. Sacco stated that he could not remember
how he answered these questions. Ultimately, McKeon agreed to go
back to the barracks with the investigators. H.9, 74.1
During the car ride, the investigators talked with McKeon
about his career (he was a police officer at Buffalo State College)
and his personal life (he was divorced and had two daughters from
his previous marriage). McKeon explained that Migliore had a
drinking problem, which caused tension in their relationship.

1

Citations to “H.__”, “P.__”, “PW.__” and “S.__” refer to pages
from transcripts of the Huntley hearing, the plea proceeding, the
hearing on the motion to withdraw the plea, and the sentencing
proceeding, respectively. Copies of these trancripts have been
submitted by Respondent in connection with his answer to the habeas
petition.
-3-

They arrived at the barracks in Machias about 6 p.m., and
McKeon

was

brought

to

an

interview

room.

After

Inv.

Keats

questioned the veracity of McKeon’s claim that Migliore had started
walking down Route 250, a busy roadway, by herself with no cell
phone or money, McKeon lowered his head and stated, “I don’t know
what I should do now.” At that point, Inv. Keats read McKeon his
Miranda2 warnings, and McKeon agreed to continue speaking with the
investigators. H.24-25.
Over the next four hours,

McKeon gave multiple iterations of

the events of the night Migliore died, although he stopped short of
admitting that he killed her. In his final, written statement,
McKeon stated that when he returned home from the hospital on the
night of March 6, 2008, finding Migliore highly intoxicated. She
was “on [him] immediately” in a jealous rage. Migliore, who had
taken off all her clothes, threatened to run to the neighbors’
house and tell them he was abusing her. She asked him what his
employer would think if she made such a complaint and began to
throw things and smash dishes. McKeon said that Migliore spat in
his face during the argument because she knew how much he hated
that; he commented that “it was almost like she wanted [him] to
hurt her.” H.29.
McKeon stated that the next thing he remembered was Migliore
lying on the floor on her stomach with her head turned to the side
2

Miranda v. Arizona, 384 U.S. 436 (1966).
-4-

and her eyes partially closed. McKeon remembered driving in his
car, but he could not recall where and he did not know where
Migliore was at the time. McKeon remembered returning home and
falling asleep in his recliner.
McKeon concluded his review of his written statement at about
11:45 p.m. and excused himself to use the lavatory. When he
returned, he asked whether it would be possible to keep the matter
out of the media to protect his parents.
Meanwhile, New York State Police Investigator Darryl O’Shei
(“Inv. O’Shei”) had returned to the barracks after executing a
search warrant at McKeon’s house. After reviewing Petitioner’s
statement, he went in to speak to McKeon at about 12:25 a.m. Inv.
O’Shei asked McKeon whether he, as a police officer, would believe
his statement if someone presented it to him. McKeon replied, “No.”
H.81. Inv. O’Shei asked McKeon to try to fill in some of the gaps
in his story. McKeon stated that Migliore had angrily knocked over
the kitchen table. He repeated that he had blacked out, and when he
came to, Migliore lay immobile on the floor. McKeon remembered
getting into his car; he thought that Migliore’s body must have
been in the trunk. He recalled that there was a gasoline can in the
trunk that he threw out the window after he removed Migliore’s body
from the trunk.

-5-

The conversation between Inv. O’Shei and McKeon lasted for
about half an hour. Inv. O’Shei transcribed McKeon’s statement from
memory after he went home.
Following the suppression hearing, Judge Punch ruled from the
bench that there was no basis to deem the statements inadmissible
as McKeon had never been subjected to custodial interrogation and
even if he had been, he validly waived his rights. H.102.
C.

The Plea Proceeding

Just over two weeks prior to the trial’s scheduled start-date,
the parties appeared before Orleans County Court Judge James Punch.
The prosecution conveyed the following plea offer: In exchange for
McKeon’s plea of guilty to first degree manslaughter in full
satisfaction of the indictment, the trial court would impose a
determinate sentence of no less than 15 and no more than 20 years,
plus 5 years of post-release supervision. McKeon indicated that he
understood the terms of the offer, and he accepted it.
During his plea colloquy, McKeon stated that on the night of
March 6, 2008, he and the victim got into an argument. He said that
he was trying to defend himself from her (she was trying to burn
him with cigarettes) when he “just snapped . . . and went too far
and apparently [he] strangled her.” P.8. Judge Punch asked McKeon
whether he “could have left the house rather than kill her.” P.8-9.
McKeon replied that he “[p]robably” could have, but “it would have
taken a lot of force . . . to get passed [sic] her and get out of

-6-

the door.” P.9. He conceded that he would not have been required to
use “deadly force” to leave his home. P.9.
McKeon explained that he strangled Migliore with one hand by
squeezing her neck for five to ten minutes and intentionally
compressing her windpipe. P.9, 11-12. He did not release her until
she collapsed on the ground. P.12-13. When Judge Punch asked if he
intended to kill her, McKeon responded, “[y]es.” P.13.
Judge Punch next inquired as to what McKeon did with his
girlfriend’s corpse. McKeon stated that he put it in his car and
transported it somewhere in Orleans County, but he did not know the
location. Then he “[d]umped her out of the car.” P.13-14.
When McKeon denied having discussed a potential justification
defense with his attorney, Judge Punch explained that “use of force
is permitted to protect you against oncoming force from another
person” but “you can’t use deadly force when you still have the
ability to retreat.” P.15. Judge Punch added that deadly force
cannot be used “unless it appears reasonably [sic] to you that
deadly force is about to be used against you.” P.15. Judge Punch
asked McKeon whether it was “clear” to him that “self-defense or
justification would not apply to what [he] did[.]” P.15. McKeon
responded affirmatively and proceed to enter a guilty plea to first
degree manslaughter. P.16.

-7-

D. The Motion to Vacate the Plea
On December 3, 2008, McKeon sent a letter to the County Court
in which he alleged that: (1) his attorney, the prosecutor, and the
County Court had mishandled his case; (2) he was only given
15 minutes to consider the plea deal and was “forced” to lie during
the plea allocution; (3) unspecified ex parte communications had
occurred between the prosecutor and the court; and (4) Judge Punch
should have

recused

himself

because

he

was biased,

had done

“improper things,” and was in poor health. See Respondent’s Exhibit
(“Resp’t Ex.”) A. After the prosecutor filed opposition papers,
Petitioner converted his letter to a formal motion in which he
additionally asserted that, in order to force him to take the plea
to first degree manslaughter, his attorney had “falsely informed”
him that he “would be sentenced or serve a minimum period of
imprisonment of thirty-five years” if convicted of second degree
murder. See Resp’t Ex. C. New defense counsel was appointed, who
adopted McKeon’s prior filings.
On February 2, 2009, County Court Judge Robert C. Noonan
denied the motion but ordered a hearing on the limited issue of
whether “counsel misled [McKeon] as to the potential sentence he
could have received had he exercised his right to trial.” Resp’t
Ex. F at 2 (citation omitted). With regard to McKeon’s other
claims, Judge Noonan found that the plea was knowing and voluntary
and that the “record belie[d] [McKeon’s] current contentions that

-8-

he was forced to lie to receive a favorable plea bargain, that he
had insufficient time to consider the plea offer and that counsel
did not prosecute the defense in a satisfactory manner.” Id.
(citations omitted). Judge Noonan further found that it did not
“appear from the court’s inquiry and [McKeon’s] own detailed
recitation of the facts that any justification defense exist[ed] to
the manslaughter charge.” Id. (citations omitted).
On February 27, 2009, Petitioner and his newly appointed
attorney appeared for a hearing on the motion to withdraw the plea
and, if applicable, sentencing. McKeon at first testified that the
only time

he

and

his

attorney

ever

discussed

his

sentencing

exposure was on the day that he pleaded guilty. PW.7, 9. He stated
that they had a 15 or 20 minute meeting in the attorney visiting
area of the county jail, in which his attorney told him that his
maximum

sentence

for

a

second

degree

murder

conviction

was

35 years, but if he took the plea deal, he could serve as little as
17

years,

one

month,

and

22

days.

PW.8.

Apart

from

that

conversation, McKeon stated that the only other communication from
his attorney regarding sentencing came in the form of letters, the
contents of which he could not describe consistently. For instance,
he testified on the one hand that he did not recall what the
letters said because he “wasn’t interested” but later stated that
the letters might have mentioned a 25-year sentencing maximum for
second degree murder. PW.7, 10. Finally, however, he confirmed that

-9-

he “did have information that the maximum sentence . . . is
twenty-five to life.” PW.13. McKeon denied having independent
knowledge of his sentencing exposure, claiming that in his 30 years
as a police officer, he never investigated a homicide. PW.9-10.
McKeon’s

previous

attorney,

John

Nuchereno,

Esq.

(“Plea

Counsel”), testified for the prosecution that he had advised McKeon
on “numerous” occasions of the “repercussions of a conviction for
murder in the second degree[,]” including the potential sentencing
exposure. PW.18-19. Plea Counsel explained that he had described
McKeon’s sentencing exposure as a minimum of 15 to 25 years and a
maximum of life. PW.19. Plea Counsel told McKeon that “based upon
the nature of the crime,” he believed that the sentence could be in
the range of 25 years to life. PW.19.
Plea Counsel explained that the only plea offer previously
made had been to second degree murder, but in September of 2008,
the District Attorney expressed an openness to resolving the case
with a manslaughter plea. PW.21-22. Plea Counsel testified that he
and

McKeon

had

discussed

all

potential

sentencing

options,

including that a plea to manslaughter “could guarantee his release
in his early 60’s” whereas a second degree murder conviction could
mean “possibly dying in prison.” PW.24. Plea Counsel stated that he
believed that McKeon had comprehended their discussions. PW.25.
Judge Noonan denied the motion to vacate the plea from the
bench, noting that McKeon’s own testimony did not support his

-10-

allegation that counsel had misinformed him. PW.25. According to
Judge Noonan, McKeon’s testimony was so weak that he was “not even
sure [Plea Counsel’s] testimony was necessary.” Id. In sum, Judge
Noonan found, Plea Counsel provided McKeon with “accurate legal
advice” and “did not in any fashion provide ineffective assistance
or mislead [Petitioner] with respect to the plea. . . .” PW.26.
With

regard

to

sentencing,

the

prosecutor

argued

that

Petitioner had not accepted responsibility, and asked that in light
of the nature of the crime, the maximum agreed-upon sentence of
20 years be imposed. S.31. Defense counsel asked the court to
consider his client’s 30-year career in law enforcement. McKeon
declined to address the court as to sentencing, instead asking for
permission to “preserve some points for appellate review.” S.33.
Judge Noonan informed McKeon that the only issues he would preserve
for appellate review “revolve[d] around [his] sentence.” S.33.
McKeon asserted that he wished to preserve a challenge to the
search warrant, to which Judge Noonan responded, “You can preserve
[this issue] on appeal; you haven’t waived that.” S.33. Noting that
McKeon’s plea colloquy was “one of the most chilling things [he] .
. . ever read[,]” S.34, Judge Noonan sentenced McKeon to 20 years
in prison and 5 years of post-release supervision. In addition,
Judge Noonan issued orders of protection as to several of the
victim’s relatives. S.35.

-11-

F.

Post-Conviction Proceedings

Petitioner, through counsel, filed a brief in the Appellate
Division, Fourth Department, of New York State Supreme Court in
which he argued that (1) his waiver of appeal was ineffective
because his attorney and the County Court assured him at sentencing
that his appellate claims were not subject to waiver; (2) the
County Court misled him as to his duty to retreat during the plea
colloquy, which invalidated his guilty plea; (3) the search warrant
inaccurately

described

the

subject

premises;

(4)

the

police

obtained statements in violation of his Miranda rights; and (5) the
orders

of

protection

should

be

vacated

because

the

victim’s

survivors were neither witnesses nor victims as defined in the
relevant statutory provision.
On November 12, 2010, the Appellate Division unanimously
affirmed the conviction. People v. McKeon, 78 A.D.3d 1617 (4th Dep’t
2010). The New York Court of Appeals denied leave to appeal on
February 27, 2011. People v. McKeon, 16 N.Y.3d 799 (2011).
This timely habeas petition followed, in which Petitioner
argues that (1) he did not knowingly and intelligently waive his
right to appeal; (2) his guilty plea was not knowing, intelligent,
and voluntary; (3) the search warrant evidence should have been
suppressed; (4) his statements to the police should have been
suppressed; and (5) the orders of protection issued at sentencing
in favor of the relatives of the victim should be vacated.

-12-

III. Discussion
A.

Ground One: Invalid Waiver of Right to Appeal

At sentencing, Judge Noonan expressly advised Petitioner that
he had preserved his appellate rights, including the right to
challenge

the

issuance

of

the

search

warrant.

Petitioner

specifically noted on the record that defense counsel had confirmed
that his appellate rights had been preserved, while the prosecutor
remained silent during this exchange. However, when accepting his
plea at an earlier date, Judge Punch advised Petitioner that by
pleading

guilty,

Petitioner

“you

argues

that

will

give

although

up

your

apparently

right
Judge

to

appeal.”

Punch

was

referring only to those appellate rights that are automatically
forfeited upon entering a guilty plea, his explanation at the plea
colloquy was ambiguous. Therefore, Petitioner argues, as he did on
direct appeal, such a general waiver of appeal was ineffective
regarding the appellate rights that routinely survive a guilty
plea.
The Appellate Division upheld the appellate-rights waiver,
observing that the record of the plea proceeding established that
McKeon “‘understood that the right to appeal [was] separate and
distinct from those rights automatically forfeited upon a plea of
guilty’ and that his waiver of the right to appeal was knowingly,
voluntarily, and intelligently entered.” McKeon, 78 A.D.3d at 1617
(quotation omitted).

-13-

McKeon relies on a line of New York state court cases holding
that a general waiver of appeal is invalid if the court fails to
distinguish
forfeited

on

the

record

upon entering

a

between
guilty

those

rights

plea and

those

automatically
rights

that

survive. E.g., People v. Lopez, 6 N.Y.3d 248, 257 (N.Y. 2006).
Thus, under New York state law, advising a defendant that when he
pleads guilty, he waives his right to appeal, has been deemed an
insufficient inquiry to ensure that the defendant’s waiver was
knowingly and voluntarily given. Id. at 257; see also People v.
Cain, 29 A.D.3d 1157, 2006 N.Y. Slip Op. 03939, at **2 (3d Dep’t
2006) (finding waiver invalid where court “enumerated several
rights that defendant was relinquishing by pleading guilty and
concomitantly inquired whether he understood that he also ‘[gave]
up [his] right to appeal this process we’re now going through’” but
“failed to adequately distinguish defendant’s waiver of the right
to appeal from those rights which are automatically forfeited upon
a plea of guilty”) (citing Lopez, 6 N.Y.3d at 256-57; alterations
in original).
McKeon is correct that as a matter of New York state law, the
record “must establish that the defendant understood that the right
to appeal is separate and distinct from those rights automatically
forfeited upon a plea of guilty. . . .” Lopez, 6 N.Y.3d at 256; see
also id. at 256–57. However, federal habeas relief is not available
to redress mere errors of state law. Estelle v. McGuire, 502 U.S.

-14-

62, 67 (1991) (citations omitted). McKeon has not cited, nor is the
Court aware of, any federal precedent standing for the proposition
that the trial court must employ specific language when apprising
a defendant pleading guilty of the individual rights relinquished.
Accordingly, McKeon has not alleged an error of constitutional
magnitude redressable in this habeas proceeding. Accord, e.g.,
Salaam v. Giambruno, 559 F. Supp.2d 292, 298 (W.D.N.Y. 2008)
(finding petitioner’s claim that his appellate-rights waiver was
invalid because the trial court “did not ask petitioner to explain
in his own words his understanding of what this waiver meant” did
not state a basis for habeas relief); Nicholas v. Smith, No. 02 CV
6411(ARR), 2007 WL 1213417, at *10–11 (E.D.N.Y. Apr. 24, 2007)
(“[W]hile petitioner’s argument that the appeal waiver was invalid
may

have

some

basis

in

New

York

law,

petitioner

has

not

demonstrated that the enforcement of the waiver denied him of any
rights under the federal Constitution[.]”).
B.

Ground Two: Involuntary Guilty Plea

When Petitioner recited the events leading up to the homicide,
he described a physical confrontation in his home, initiated by the
victim. According to Petitioner, the victim was “yelling and
screaming and throwing things and hitting [him] and trying to burn
[him] with cigarettes.” Petitioner asserted that he “was defending
[him]self.” Upon hearing this, Judge Punch erroneously advised
Petitioner that even though he was in his home, he could not use

-15-

deadly force when he still had the ability to retreat. P.15. Judge
Noonan, who presided over subsequent proceedings in Petitioner’s
case, noted that this was an incorrect statement of the law on
justification.
Petitioner argues that Judge Punch’s misstatement of the law
tainted the proceedings and undermined his ability to explore a
viable affirmative defense before entering his plea. Depending upon
what the victim was throwing at him, how and where she was striking
him, and what threats she may have been making, Petitioner asserts,
he may have reasonably believed that his life was in danger and
that his actions were justified under the law. He asserts that
Judge Punch did not conduct a sufficient inquiry on the record to
ascertain the material facts relevant to a potential defense.
The

Appellate

Division

held

that

McKeon

had

“failed

to

preserve” his claim that his plea was not knowingly and voluntarily
entered “by failing to move to withdraw his guilty plea or to
vacate the judgment of conviction on that ground.” 78 A.D.3d at
1618

(citation

omitted).

The

Appellate

Division

found

that

contention, in the alternative, to be without merit. Id. Although
Judge

Punch

“mistakenly

advised

him

concerning

his

duty

to

retreat[,]” the “error did not render the plea invalid[,]” because
McKeon “did not indicate in his recitation of the facts underlying
the crime that he reasonably believed that the victim was using or
was about to use deadly physical force.” Id. (citing N.Y. PENAL LAW

-16-

§ 35.15 (2)(a); other citations omitted). This conclusion was not
incorrect as a matter of federal law.
A

guilty

“represents
alternative
Carolina

v.

a

plea

will

voluntary

courses
Alford,

of

be

upheld

and

action

400

U.S.

as

constitutional

intelligent
open
25,

to
31

the

choice

among

defendant.”

(1970).

if

it
the

North

Accordingly,

a

petitioner must receive “real notice of the true nature of the
charge against him[.]” Henderson v. Morgan, 426 U.S. 637, 645
(1976). It is incumbent on the trial court to “assure that the plea
is entered voluntarily and represents an intelligent choice between
the different

courses

open to

a

defendant[,]”

but

“[w]hen

a

defendant fails to bring any matter to the trial court’s attention,
such as a denial of guilt, that would suggest the need for a
factual inquiry, one is not required.” Tate v. Wood, 963 F.2d 20,
23 (2d Cir. 1992) (citing Panuccio v. Kelly, 927 F.2d 106, 110-11
(2d Cir. 1991); Willbright v. Smith, 745 F.2d 779, 780 (2d Cir.
1984) (per curiam)); see also Ames v. New York State Div. of
Parole, 772 F.2d 13, 15 (2d Cir. 1985) (“Due process . . . does not
require that a defendant be advised of every basis on which he
might escape or receive a lesser punishment for an offense that he
has committed[,] particularly where the burden of persuasion with
respect to the appropriate defense rests on the defendant.”).
Under New York law, a person may not raise a justification
defense to his use of deadly force unless he “reasonably believes

-17-

that such other person is using or about to use deadly physical
force.” N.Y. PENAL LAW § 35.l5(2)(a). “If a defendant who

is

confronted with deadly physical force knows he can retreat with
complete safety but fails to do so, the justification defense is
lost.” Jackson v. Edwards, 404 F.3d 612, 623 (2d Cir. 2005) (citing
In re Y.K., 87 N.Y.2d 430, 434 (1996); N.Y. PENAL LAW § 35.15(2)(a)).
If, however, a defendant is not the initial aggressor and is
attacked within his dwelling, he is not required to retreat. N.Y.
PENAL LAW § 35.15(2)(a)(i). Because the use of deadly physical force
in this case occurred while McKeon was in his own home, the duty to
retreat did not apply. See id.
Nevertheless,

as

the

Appellate

Division

concluded,

justification was not a viable defense based upon Petitioner’s own
statements during the plea colloquy. Notably, McKeon specifically
allocuted to the fact that he did not need to use deadly physical
force to “get out of” his house and remove himself from the
argument he was having with the victim. P.9. Judge Punch asked
Petitioner whether he had to “kill her” in order to defend himself,
and Petitioner replied, “I guess not.” P.9. Therefore, the Court
agrees with Respondent that the knowing and voluntary nature of
Petitioner’s plea was not affected by Judge Punch’s misstatement
because Petitioner’s own description of the events antecedent to
the murder precluded him from raising a defense of justification.
In other words, the error by Judge Punch in failing to acknowledge

-18-

the “dwelling” exception to the duty-to-retreat was harmless. See
Diaz

v.

Mantello,

115

F.

Supp.2d

411,

414

(S.D.N.Y.

2000)

(rejecting plea court’s misstatement regarding the count to which
petitioner was pleading guilty as basis for habeas relief; error
was harmless and had no effect on the validity of the plea).
C.

Ground Three: Invalidity of the Search Warrant

The police originally submitted a written application for a
search warrant which incorrectly described Petitioner’s residence
as being located along Route 40 instead of Route 240. When the
affiant-police officer realized the error and contacted the issuing
judge, by telephone, the judge simply told him to insert the proper
address and initial the correction. The police officer did not
recall being placed under oath during the telephone call. McKeon
argues that the police officer either was offering oral testimony
in support of the original written application or he was making an
oral

application

for

a

new

warrant.

In

either

case,

McKeon

contends, his testimony should have been taken under oath and
recorded for later review, and the failure to do so rendered the
warrant defective.
Because Petitioner had a full and fair opportunity to litigate
this Fourth Amendment claim, he may not seek redress by means of a
petition for a writ of habeas corpus. See Stone v. Powell, 428 U.S.
465, 481-82 (1976) (“[W]here the State has provided an opportunity
for full and fair litigation of the Fourth Amendment claim, the

-19-

Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained
in an unconstitutional search or seizure was introduced at his
trial.”); accord, e.g., Gates v. Henderson, 568 F.2d 830, 837
(2d Cir. 1977) (en banc).
In order to bring his case outside the purview of Stone v.
Powell, supra, McKeon must show that the State of New York failed
to provided him with the “opportunity for full and fair litigation
of his Fourth Amendment claim.” Gates, 568 F.2d at 837. This
showing cannot be made on the present record. Indeed, Petitioner
took full advantage of the statutory mechanism provided under
New York state law for litigating suppression claims. He received
a hearing before the trial court regarding his claim that the
search warrant was improperly amended, see H.103-28, and the court
rendered a written decision. See Resp’t Ex. M. McKeon’s appellate
counsel subsequently argued the merits of the issue on direct
appeal. Clearly,

he

received

a

full

and

fair

opportunity

to

litigate his Fourth Amendment claim in the state court. Further
review by this habeas court therefore is unavailable.
D.

Ground Four: Erroneous
Statements to the Police
1.

Admission

of

Petitioner’s

Overview

Petitioner claims that certain statements he made initially
should have been suppressed because the police obtained them during
a custodial interrogation without having first apprised Petitioner
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of his Miranda rights. Petitioner also claims that because his
first statements were tainted by the police officers’ failure to
administer Miranda warnings, his subsequent, warned statements also
should have been suppressed.
Following the suppression hearing, the trial court ruled from
the bench that with regard to the pre-Miranda statements, “the
defendant was not in custody, and no reasonable person would assume
that his liberty was restrained based on the facts as they were
presented.” H.102. The trial court found that the post-Miranda
statements likewise were non-custodial, but “[i]n the event they
were to be considered custodial[,]” the trial court found that “the
Miranda warnings were adequately given and waived.” Id.
The Appellate Division declined to review Petitioner’s Miranda
claims, finding that they were encompassed by his appellate-rights
waiver. McKeon, 78 A.D.3d at 1618 (citation omitted). Given that
Petitioner has challenged the validity of his waiver, this Court
will address the merits of the Miranda claims.
2.

Pre-Miranda Statements

“Miranda stated that its requirements apply to ‘custodial
interrogation,’

which

the

[Supreme]

Court

explained

was

‘questioning initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of his freedom of
action in any significant way.’” Cruz v. Miller, 255 F.3d 77, 81
(2d Cir. 2001) (quoting Miranda, 384 U.S. at 444). The Supreme

-21-

Court also observed that its decision in Miranda was not meant to
apply

to

“[g]eneral

on-the-scene

questioning

as

to

facts

surrounding a crime or other general questioning of citizens in the
fact-finding process.” 384 U.S. at 477. In Oregon v. Mathiason, 429
U.S. 492 (1977) (per curiam), the Supreme Court clarified that
Miranda warnings are not required simply because “the questioning
took place in a ‘coercive environment.’” Id. at 495. “Miranda did
not . . . establish that police questioning of a suspect at the
station house is always custodial.” Howes v. Fields, ___ U.S. ___,
132 S.Ct. 1181, 1188 (2012) (citing Mathiason, 429 U.S. at 495
(declining to find that Miranda warnings are required “simply
because the questioning takes place in the station house, or
because the questioned person is one whom the police suspect”)).
The Supreme Court explained in Howes that
[i]n determining whether a person is in custody . . . ,
the initial step is to ascertain whether, in light of
“the objective circumstances of the interrogation,”
Stansbury v. California, 511 U.S. 318, 322–323, 325, 114
S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam), a
“reasonable person [would] have felt he or she was not at
liberty to terminate the interrogation and leave.”
Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133
L.Ed.2d 383 (1995).
Howes, ___ U.S. at ___, 132 S. Ct. at 1189. In order to determine
how a suspect would have assessed his ability to terminate the
interview, courts must examine all of the relevant circumstances,
including the location of the questioning, its duration, statements
made during the interview, the presence or absence of physical

-22-

restraints

during

the

questioning,

and

the

release

of

the

interviewee at the end of the questioning. Id. (citations omitted).
Petitioner’s argument regarding the pre-Miranda statements
relies on a brief portion of Inv. Sacco’s hearing testimony on
cross-examination:
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Q.
A.
Q.
A.

Did Mr. McKeon say before he left the house, I have
got to report for work tonight at 11:00?
I think at one point he had indicated what time he
had to go to work.
He indicated concern didn’t he, because he knew he
would have to come back home to get items to take
to work up in Buffalo; true?
That could be, yes.
You knew that he was a police officer working
security at Buffalo State College?
Yes.
And he wanted to know if he was going to go to
Machias to talk further and come back, if he would
have enough time; true?
At one point he asked me if he was in trouble and
if he was going to come back. I’m not sure what I
told him. But I did tell him that we are going to
the state police barracks.
You don’t recall if you told him he was in trouble
or not?
He asked me if he was in trouble and if he was
coming back.
But did you answer that question?
If I did, I don’t recall what I told him.

H.73-74. Petitioner argues that because he specifically asked the
police officers if he was in trouble and if he would be permitted
to return home after accompanying them to the police barracks, he
expressly advised the police that he did not feel free to decline
their request. Thus, Petitioner argues, the police should have
advised him of his Miranda rights before proceeding further.

-23-

However, as Petitioner concedes, the Miranda standard is an
objective, not a subjective, one. Under the circumstances present
here, Petitioner objectively could not have believed that he was in
custody when he asked whether he was “in trouble and if he was
coming back [to his house].” H.74. Petitioner was in his own home
at

the

time,

and

he

had

not

been

arrested.

Neither

of

the

investigators told Petitioner that he was required to accompany
them to the police barracks. Instead, they asked Petitioner to come
with them for purposes of giving a statement to assist in their
investigation into the whereabouts of Petitioner’s missing live-in
girlfriend. In addition, Petitioner had not made any statements to
the investigators during their conversation at his house that were
incriminating or would have provided probable cause to arrest him.
Moreover, Petitioner rode to the police barracks unrestrained in
the front seat of the officers’ car. While at the barracks, he was
not

restrained

in

any

way

and

was

provided

cigarettes

and

beverages. Finally, Petitioner was never told that he was under
arrest or that he was not free to leave the barracks. See, e.g.,
Maine v. Thibodeau, 478 U.S. 1144, 1146 (1986) (holding that
defendant who voluntarily accompanied the officers to the police
station, who was never told that he was not free to leave, and who
was never physically restrained or threatened, was not in custody);
see also Maldonado v. Greiner, No. 01 Civ. 0799, 2003 WL 22435713,
at *21 (S.D.N.Y. Oct. 28, 2003) (holding that petitioner who was

-24-

not under arrest or required to go to the police precinct, who
agreed to accompany the police officers to the precinct and did so
unrestrained, who was not told that he could not leave, and who was
questioned for 60 to 80 minutes over the course of 13 hours, was
not in custody).
Even under a subjective analysis, the same conclusion is
compelled. Petitioner, as a veteran police officer, plainly knew
that he was free to decline the request to go to the barracks or to
stop

talking

to

the

investigations.

During

his

subsequent

conversations with the police, when he was asked if he understood
the Miranda warnings, Petitioner essentially told the investigators
stated that as a police officer, he well understood their import.
2.

Post-Miranda Statements

As noted above, the suppression court found that Petitioner
was properly advised of his Miranda rights prior to any custodial
interrogation, and knowingly and voluntarily waived those rights.
Petitioner

has

presented

no

evidence,

much

less

clear

and

convincing evidence, see 28 U.S.C. § 2254(e)(1), for his claim that
the

suppression

court’s

finding

was

erroneous.

Indeed,

the

suppression court’s finding is amply supported by the record. In
light of this factual determination that Petitioner was advised of
his Miranda rights prior to giving his recorded statement, there is
no “pre-Miranda statement” that could have tainted his post-Miranda
statement. Tibbs v. Greiner, 01-Civ-4319, 2003 WL 1878075, at *7,

-25-

*11 (Apr. 16, 2003) (“Because this Court finds that Tibbs was not
subject to any pre-Miranda interrogation, his habeas claims that
pre-Miranda statements tainted his post-Miranda statements should
be denied.”) (internal citation to record omitted), report and
recommendation adopted (S.D.N.Y. July 2, 2003) (unpublished opn.).
In any event, the Supreme Court has stated that “there is no
warrant for presuming coercive effect where the suspect’s initial
inculpatory statement, though technically in violation of Miranda,
was voluntary.” Oregon v. Elstad, 470 U.S. 298, 318 (1985). The
“relevant

inquiry”

is

whether

the

second

statement

also

was

voluntarily made, id., as it was in McKeon’s case. Under these
circumstances, the Supreme Court has declined to “imput[e] ‘taint’
to subsequent statements obtained pursuant to a voluntary and
knowing waiver” of Miranda rights. Id. (holding 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”).
E.

Ground Five: Erroneous Issuance of Orders of Protection

McKeon argues that because the victim’s family members did not
testify against him or witness the crime, the sentencing court
erroneously issued protective orders in their favor under New York
Criminal Procedure Law (“C.P.L. § 530.13), the statute governing
the procedure for issuing orders of protection for non-family
offenses.

The

Appellate

Division

-26-

declined

to

consider

this

argument, finding that it was not preserved. McKeon, 78 A.D.3d at
1618.
Respondent argues, inter alia, that the protective orders are
not a sufficient restraint on Petitioner’s liberty to meet the “in
custody” requirement

of

the

habeas

statute,

see 28

U.S.C. §

2254(a); and that McKeon merely alleges an error of state law not
cognizable in this federal habeas proceeding.
Even

assuming

arguendo

that

McKeon

had

satisfied

the

jurisdictional “in custody” requirement of 28 U.S.C. § 2254(a), the
Court would not be able to grant habeas relief on this claim.
McKeon

contends

that

the

protective

orders

were

unauthorized

because the family members in whose favor the orders issued were
not witnesses to the crime and did not testify at any trial. Under
New York law, C.P.L. § 530.13(4) “authorizes a court to issue a
permanent order of protection in favor of a victim or witness in a
criminal action.” People v. Konieczny, 780 N.Y.S.2d 546, 813 N.E.2d
626, 626 (N.Y. 2004). A court “cannot rely on [C.P.L. §] 530.13 to
issue

an

order

of

protection

for

a

party

unrelated

to

the

underlying criminal action.” Id. (emphasis added). Petitioner is
correct that the family members in question were not witnesses or
named victims in this case. Therefore, the orders of protection
should not have been issued pursuant to C.P.L. § 530.14, and they
are

defective.

See

Konieczny,

813

N.E.2d

at

626;

Dewall

v.

Superintendent, Mohawk Corr. Fac., No. 05-CV-5583 (NGG)(RLM), 2008

-27-

WL 3887603, at *17 (E.D.N.Y. Aug. 20, 2008) (finding that orders of
protection in favor of non-witnesses to the trial, a woman who
testified only at the sentencing hearing and her daughter, were
defective under C.P.L. § 530.13(4) (citation omitted).
Neverthless, the defective orders of protection had no impact
on McKeon’s sentence. An “order of protection issued incident to a
criminal proceeding . . . is not a part of the sentence imposed.”
People v. Nieves, 2 N.Y.3d 310, 778 N.Y.S.2d 751, 811 N.E.2d 13, 13
(N.Y.

2004)

“ameliorative
victims

and

(holding

that

measure[s]
witnesses

orders

intended

both

prior

of
to
to

protection

safeguard
and

after

are

the

merely

rights

of

conviction”).

Additionally, defective orders of protection “do not render [a
defendant’s] sentence of incarceration invalid.” Id. Thus, under
Nieves, the defective orders of protection in this case do not
render McKeon’s sentence invalid. Id.
As noted above, this Court is limited to deciding whether a
conviction “violated the Constitution, laws, or treaties of the
United States.” McGuire, 502 U.S. at 67-68. McKeon’s argument
impermissibly seeks to repackage an error of state statutory law as
a federal constitutional matter. See Johnson v. Rosemeyer, 117 F.3d
104, 111 (3d Cir. 1997) (stating that alleged “errors of state law
cannot be repackaged as federal errors simply by citing the Due
Process Clause”) (cited in DiGuglielmo v. Smith, 366 F.3d 130, 136
(2d Cir. 2004)). The orders of protection, although defective under

-28-

New York state law, do not infringe on any rights guaranteed by the
federal constitution. See Dewall, 2008 WL 3887603, at *17 (finding
that

orders

of

protection

did

not

violate

petitioner’s

constitutional due process rights under the Confrontation Clause to
face his accusers where neither individual had been witnesses at
petitioner’s trial).
IV.

Motion to Stay
After Respondent answered the petition and interposed the

defenses of non-exhaustion and procedural default, Petitioner filed
a motion to stay (Dkt #9) on or about August 1, 2012. Petitioner
asked the Court to hold the petition in abeyance so that he could
return to state court to exhaust the “unpreserved issues”. Dkt #9
at 1. Petitioner asserted that defense counsel was ineffective for
failing to “fairly present” the claims in constitutional terms on
appeal and

in

failing

to

make

the

appropriate

objections to

preserve Grounds Two and Five. Id. at 1-2. As directed by the Court
(McCarthy, M.J.), Respondent filed a responsive pleading in which
he argued that the motion to stay should be denied because the
petition is not a “mixed petition.”
The Court agrees with Respondent that the petition is not a
mixed petition, that is, it does not contain any truly unexhausted
claims. All of the unexhausted claims (Grounds One, Two, and Five)
pertain to matters that appear on the trial record. They cannot be
raised in a collateral proceeding in state court because the court

-29-

would

be

required

to

dismiss

them.

See

N.Y. CRIM. PROC. LAW

§ 440.10(2)(c) (mandating that the state court deny any C.P.L.
§ 440.10 motion where the defendant unjustifiably failed to raise
a claim

on direct appeal despite a sufficient record to do so).

McKeon has already used the one direct appeal to which he is
entitled under New York state law. See N.Y. R. CT. § 500.20(a)(2)
(providing that a leave letter seeking permission to appeal to the
New York Court of Appeals must indicate that “that no application
for the same relief has been addressed to a justice of the
Appellate

Division,

Accordingly,

McKeon

as

only

one

no

longer

application

has

any

is

available

available”).
state-court

remedies, and the claims must be deemed exhausted. See, e.g.,
Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (“[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.”); see
also Grey v. Hoke, 933 F.2d 117, 120–21 (2d Cir. 1991).
As the petition contains no unexhausted claims for which
remedies remain available in the state court system, there is no
need

to

invoke

the

stay-and-abeyance

procedure.

Accordingly,

Petitioner’s motion to stay is denied.
V.

Conclusion
For

the

foregoing

reasons,

Petitioner’s

motion

to

stay

(Dkt #9) is denied with prejudice. Petitioner’s request for a writ
of habeas corpus is denied, and the petition (Dkt #1) is dismissed.

-30-

Because Petitioner has failed to make a substantial showing of the
denial of a constitutional right, no certificate of appealability
shall issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is
requested to close this case.

SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

October 29, 2013
Rochester, New York

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