Doll v. Chappius
Filing
30
DECISION AND ORDER denying 1 Petition for Writ of Habeas Corpus filed by Scott F. Doll and denying a certificate of appealability. Signed by Hon. Michael A. Telesca on 12/03/2018. (AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
SCOTT F. DOLL,
Petitioner,
No. 6:15-cv-06400(MAT)
DECISION AND ORDER
-vsPAUL CHAPPIUS, as Superintendent of
Elmira Correctional Facility,
Respondent.
INTRODUCTION
Represented by counsel, Scott F. Doll (“Petitioner”) brings
this petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 challenging the constitutionality of the judgment entered
against him on July 2, 2010, in New York State Genesee County Court
(Noonan, J.), following a jury verdict convicting him of one count
of Murder in the Second Degree(New York Penal Law (“P.L.”) §
125.25(1)). For the reasons discussed herein, Petitioner’s request
for a writ of habeas corpus is denied.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petitioner does not raise any claims regarding his trial or
sentencing but instead presents issues concerning his detention,
interrogation, and transport to the police station and trial
counsel’s representation at the suppression hearing. Therefore, the
following factual recitation is mainly confined to these areas, and
is gleaned mainly from the transcript1 of the suppression hearing
held before Judge Noonan (“the Trial Court”) on June 16, 2009.
On
February
16,
2009,
at
8:44
p.m.,
Deputy
James
Diehl
(“Diehl”) of the Genesee County Sheriff’s Office heard a dispatch
regarding a suspicious person observed by Jamie Waff (“the 911
caller”), a member of the Pembroke Fire Department. Diehl found
Petitioner, who met the description provided by the 911 caller,
walking on Route 5 and North Lake Road in the Town of Pembroke. It
was a
very
cold
night,
but Petitioner
was
wearing
one-piece
camouflage coveralls that were unzipped and a white firehood that
completely covered his head except his eyes. Diehl noticed a
12½-half inch metal object (later identified as a car jack) fall
from Petitioner’s pocket and a black cylinder (later identified as
a lug wrench), sticking out of Petitioner’s right waist pocket.
Diehl also noticed what appeared to be fresh, wet blood on the
knees and thighs of Petitioner’s coveralls; a blood mark about the
size of a quarter on his right knuckle; and a screwdriver in his
pocket.
In
response
to
Diehl’s
query
about
what
he
was
doing,
Petitioner replied that he was walking and “trying to lower his
heart rate and cholesterol” because he had a doctor’s appointment
1
The transcript of the suppression hearing (hereinafter referred to as
“Supp. Tr.”) is located in Docket No. 12-1 at pages 36 to 173. These page numbers
refer to the pagination assigned by the Court’s CM/ECF system. However, when
citing to particular pages in the transcript, the Court will use the original
page numbers in the transcript.
-2-
the next morning. Petitioner supplied his driver’s license and an
identification card indicating he was a state corrections employee.
Petitioner told Diehl that he had parked his mother’s van, a red
Ford, on the corner and that he lived in Corfu. Diehl asked
Petitioner why he was walking in the area if he lived in Corfu.
Petitioner replied that he had just dropped off a car at an
automobile auction, and on his way back he stopped to walk. Diehl
acceded to Petitioner’s request to drive him back to get his van.
Diehl then noticed that Petitioner was wearing extremely worn
sneakers
that
appeared
to
have
blood
on
them.
Diehl
asked
Petitioner where he was going with the items (lug wrench, car jack,
and screwdriver), and Petitioner said that he was going to a
friend’s house “just up the road.” However, he was unable to
remember the name of the road or provide correct directions.
As Petitioner and Diehl were speaking, the 911 caller arrived
and confirmed to Diehl that when he had seen Petitioner at the
corner of Route 5 and North Lake Road, Petitioner turned away from
him and crouched down between two parked vehicles. The passenger
who was with the 911 caller confirmed this account.
Diehl then asked Petitioner to step out of the back of his
patrol car, placed handcuffs on him, and patted down his outer
layer of clothes, finding a cigarette lighter, a key to a Pontiac,
and a receipt. Diehl remarked that he did not know what was going
on, but some of Petitioner’s statements did not make sense, and he
-3-
was detaining
Petitioner
until
he
could
figure
out
what had
happened. Diehl asked Petitioner about the fresh blood on his
clothing; Petitioner replied that he “butchered deer.”
Diehl then drove Petitioner to the location where he had
parked his mother’s van, a garage on the corner of Route 5 and
North Lake Road. Parked next to Petitioner’s mother’s van were a
blue car and a white van. On the hood of the blue car, Diehl
noticed a pair of winter work gloves with blood on them. Diehl
radioed a request to have Deputy Patrick Reeves (“Reeves”) come to
the scene to assist him.
Reeves, who had known Petitioner and his family for quite some
time, soon arrived on the scene. Reeves described the work gloves
on the blue car as “blood soaked.” Reeves and Diehl also saw blood
on the exterior of the Petitioner’s mother’s van, on the steering
wheel and armrest, on the driver’s side door, on the exterior of
the blue car, and in the snow between the two cars. Shining his
flashlight in the rear of Diehl’s car, Reeves saw that Petitioner
had blood on various areas of his face, as well as a lot of fresh
blood on his right thigh and on the “knee area” of his coveralls.
Reeves
knew
that
Petitioner
processed
deer
in
the
past;
he
testified that he thought Petitioner had probably just shot a deer
or something, but he also “absolutely” was concerned that it might
be from a victim who was seriously injured or dead.
R e e v e s
addressed Petitioner by his first name and asked, “What’s going
-4-
on?” Petitioner “just shrugged his shoulders” and said, “I’m taking
a walk, getting a cardio workout.” When Reeves asked where he was
headed, Petitioner responded “just up the road[,] going to a
friend’s house,” but he “couldn’t come up with the name of the
road.” When Reeves asked why he was covered in blood, Petitioner
did not respond initially but mentioned that he was wearing “his
old coveralls and [it] was deer blood on them[.]” Reeves responded
that it was “obvious that this [was] fresh blood” and asked whether
Petitioner had shot a deer out of season, as that was not uncommon
in the rural area where they lived. Petitioner responded, “I can’t
tell you that.” Reeves asked Petitioner if it was human blood and
inquired if should he get an ambulance for someone. Petitioner
again responded, “I can’t tell you that[,]” and added, “Pat, you
know me better than that. . . .”
Petitioner admitted to Reeves that he did not have permission
from the garage owner to park his van there. He then told Reeves
that it was his mother’s van and he borrowed it because his
daughter borrowed his car. Petitioner again claimed he was just out
getting a “cardio workout.” Reeves pleaded with Petitioner to just
let him know if it was deer blood, telling Petitioner that if he
shot a deer out of season, the worst-case scenario was that he
might lose his hunting license for three to five years and be
required to pay a fine. Petitioner replied, “I’m a few months from
retiring. . . . I can’t tell you that.”
-5-
Reeves then had Petitioner get out of the car, and showed him
the fresh blood on the front fender of his mother’s van. When
Reeves asked him why the blood was there, Petitioner again replied,
“I can’t tell you that.” Reeves
pointed out the blood spots in the
snow that were coming from holes in Petitioner’s sneakers. Again,
Petitioner said that “he couldn’t tell” Reeves about that. Reeves
told Petitioner that he was hoping it was just a deer in the ditch,
and pleaded with Petitioner to show him where it was so they could
all go home. Otherwise, Reeves said, he would have to call an
investigator and tow the van. To that, Petitioner responded, “[D]o
what you got to do.”
Toward the end of Reeves’ conversation with him, Petitioner
mentioned that he “guess[ed]” he wanted an attorney. Reeves asked
him the name of his attorney; Petitioner referred to his “divorce
attorney”
but could not remember his name.
After he had been at the scene for about ten minutes, Reeves
called Investigator Kristopher Kautz (“Kautz”) and requested his
presence. On arrival, Kautz saw blood on the steering wheel of
Petitioner’s mother’s van, as well as the driver’s arm rest and the
floor board area. Kautz asked Petitioner if someone had been
injured; Petitioner replied that “he did not know of anyone” and
that there was nothing that he could tell Kautz.
Kautz had the van seized and transported to the Sheriff’s
Department, where it was placed in the garage; he also seized the
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bloody gloves that were lying on the hood of the blue car. At 11:45
p.m.,
about
three
hours
after
Diehl
arrived
on
the
scene,
Petitioner was driven to the Sheriff’s Department so his clothing
could be collected and he could be photographed. At about 1:30
a.m., after he was photographed, but before the police seized his
clothing, Kautz and Petitioner heard a live radio dispatch stating
that the police had found a dead body on Knapp Road in Pembroke, in
the vicinity where Petitioner was found walking. Kautz observed no
reaction
from
Petitioner.
Kautz
then
collected
Petitioner’s
coveralls, sneakers, socks, pants, sweat shirt, and swabbed two
drops of blood from Petitioner’s face.
At about 3:30 a.m., Petitioner’s girlfriend, Stacy Allen, and
his friend,
Teresa
Zelaszkiewicz
corrections
officer,
arrived
at
(“Zelaszkiewicz”),
the
Sheriff’s
a
retired
Department.
Zelaszkiewicz asked repeatedly to speak with Petitioner but Kautz
declined. Eventually, Kautz permitted it, but made clear to her
that he would be physically present during the entire conversation
and might write down any of Petitioner’s comments. Kautz told
Petitioner
that
Zelaszkiewicz
wanted
to
speak
with
him,
and
Petitioner did not object. Zelaskiewicz asked Petitioner several
questions about what had happened. Petitioner told her, inter alia,
“I was there, but I didn’t do anything.”
The dead body discovered by the police was identified as
Joseph E. Benaquist (“Benaquist”), Petitioner’s friend and business
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partner. The cause of Benaquist’s death was blunt force trauma to
the head, caused by seven to eight blows with a blunt instrument.
Benaquist’s body was left between two parked cars in the driveway
of his home.
On February 17, 2009, Petitioner was arrested and charged with
Benaquist’s murder. On February 19, 2009, a grand jury returned an
indictment charging Petitioner with one count of second-degree
(intentional) murder.
On October 7, 2009, the Trial Court issued a written decision
and order denying suppression of Petitioner’s statements and all
other evidence except for the results of the buccal swab. (State
Court Records (“SR.”)2 820-32).3 The Trial Court
found that the
deputies had “reasonable grounds to believe that there was an
emergency at hand and an immediate need to intervene . . . which
justified the continued detention of [Petitioner] without counsel
or Miranda warnings[.]” (SR.830 (citations omitted)).
Petitioner’s trial was held from May 3, 2009, to May 19, 2009,
before Judge Noonan. On May 20, 2009, the jury returned a verdict
convicting Petitioner as charged in the indictment. On July 2,
2
Citations in parentheses to “SR.” refer to pages in the state court records
submitted by Respondent in connection with his Response to the Petition.
3
Buccal swabs of Petitioner were later obtained with his consent, after the
Trial Court issued an order to show cause.
-8-
2010,
Petitioner
was
sentenced
to
an
indeterminate
term
of
imprisonment of 15 years to life.
Represented by new counsel, Petitioner appealed his conviction
to the Appellate Division, Fourth Department, of New York State
Supreme Court (“Appellate Division”). In a three-two decision, the
Appellate Division affirmed the conviction on July 6, 2012. People
v. Doll, 98 A.D.3d 356, 948 N.Y.S.2d 471 (4th Dep’t 2012). On
August 20, 2012, one of the dissenting Appellate Division justices
granted Petitioner leave to appeal to the New York Court of Appeals
(“Court of Appeals”). People v. Doll, 19 N.Y.3d 1003 (2012). On
October 17, 2013, the Court of Appeals affirmed Petitioner’s
conviction. People v. Doll, 21 N.Y.3d 665, 672 (2013), rearg.
denied, 22 N.Y.3d 1053 (2014), cert. denied, 134 S. Ct. 1552
(2014).
Petitioner
presented
an
ineffective
assistance
of
trial
counsel claim in a counseled motion to vacate the judgment pursuant
to New York Criminal Procedure Law (“C.P.L.”) § 440.10. Petitioner
alleged that trial counsel failed to properly present an argument
pursuant to Dunaway v. New York, 442 U.S. 200 (1979), that he was
subjected to a full arrest, without probable cause, when he was
transported to the Sheriff’s Department. The Trial Court denied the
motion without a hearing in a written decision. SR.3378-81. The
Appellate Division denied leave to appeal on June 13, 2015.
-9-
This timely Petition (Docket No. 1) followed. For the reasons
set
forth
below,
the
Court
finds
that
Petitioner
has
not
demonstrated entitlement to a writ of habeas corpus.
MERITS OF THE PETITION
I.
Admissibility of Petitioner’s Statements at the Garage to the
Sheriff’s Deputies (Ground 1(a))
Petitioner reasserts his claim, raised on direct appeal, that
his statements at the garage to the sheriff’s deputies should have
been suppressed because he was questioned while in custody without
being provided with Miranda warnings and after invoking his right
to counsel, and the public safety exception to Miranda did not
apply because there was no known victim. The Appellate Division
found that a reasonable person under those circumstances would not
have felt free to leave, and thus Petitioner was in custody for
Miranda purposes. Doll, 98 A.D.3d at 363 (citations omitted).
However, the deputies did not violate Petitioner’s right to counsel
or his Miranda rights under the particular circumstances because
their “need to gain information about a possibly injured victim or
victims permitted the deputies to continue questioning defendant,
despite his request for an attorney, under the doctrine that is
variously
known
as
the
rescue,
emergency,
or
public
safety
doctrine.” Id. (citation omitted).
The Court of Appeals affirmed, finding that the “unusual
circumstances,” Doll, 21 N.Y.3d at 669, presented to the deputies
made it “reasonable for the police to believe that a person may
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have been seriously injured and in need of imminent emergency
assistance.”
Id.
at
671.
Therefore,
“the
emergency
doctrine
justified the police questioning[,]” id., notwithstanding “the fact
that police did not know definitively whether a crime had occurred
or the identity of the potential victim . . . because the emergency
doctrine
is
premised
on
reasonableness,
not
certitude[.]”
Id. (citations omitted).
“When[,
as
here,]
a
state
court
adjudicates
a
habeas
petitioner’s claim on the merits, the reviewing court “must afford
that decision the deferential standard of review established by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) in
28 U.S.C. § 2254(d).” Hawkins v. Costello, 460 F.3d 238, 242 (2d
Cir. 2006) (citation omitted). Under § 2254(d)(1)’s “unreasonable
application” prong, “a federal habeas court may grant the writ if
the state court identifies the correct governing legal principle
from th[e] [Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Williams v.
Taylor, 529 U.S. 362, 413 (2000). “Under the ‘contrary to’ clause
[of § 2254(d)(1)], a federal habeas court may grant the writ if the
state court arrives at a conclusion opposite to that reached by
[the Supreme] Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams, 529 U.S. at 412–13.
-11-
After reviewing the state courts’ decisions in light of the
Supreme Court’s precedents, it appears that the state courts
conflated
the
Supreme
Court’s
“emergency
doctrine,”
which
is
applicable in the Fourth Amendment context permits police action
without a warrant, e.g., Fisher, 558 U.S. at 47,4 with the “public
safety” exception to the Miranda rule the Supreme Court carved out
in New York v. Quarles, 467 U.S. 649, 655-56 (1984). It is beyond
debate, however, that habeas relief under AEDPA may not be granted
based on a mere error by the state courts in applying clearly
established federal law. E.g., Cullen v. Pinholster, 131 S. Ct.
1388, 1411 (2011). Rather, the state courts’ application must be
“objectively unreasonable[,]” 529 U.S. at 409, a “distinction
[which] creates ‘a substantially higher threshold’ for obtaining
relief than de novo review.” Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “A
state court’s determination that a claim lacks merit precludes
federal habeas relief [under AEDPA] so long as ‘fairminded jurists
could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)). Thus, AEDPA “demands that
4
In Fisher, the Supreme Court held that police officers do not need ironclad
proof of a likely serious, life-threatening injury to invoke the emergency aid
exception to the Fourth Amendment’s warrant requirement. 558 U.S. at 49. Fisher
and the Supreme Court’s other “emergency doctrine” cases did not involve the
Fifth Amendment’s privilege against self-incrimination or the issue of whether
the police are exempted from issuing Miranda warnings prior to a custodial
interrogation, such as occurred in this case.
-12-
state-court
decisions
be
given
the
benefit
of
the
doubt[.]”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
The
“clearly
established
Federal
law”
in
this area is
comprised of Miranda, 384 U.S. at 454, and Quarles, 467 U.S. at
655-59. Miranda held that statements made by a suspect in custody
in
response
to
police
interrogation
are
inadmissible,
unless
preceded by certain warnings regarding the suspect’s constitutional
rights. See Miranda, 384 U.S. at 444-45. In Quarles, the Supreme
Court announced a “public safety” exception to the per se rule
barring admission of custodial statements made without Miranda
warnings. Quarles, 467 U.S. at 655–59. The Supreme Court explained
in Quarles that where “the need for answers to questions in a
situation posing a threat to the public safety outweighs the need
for
the
prophylactic
rule5
protecting
the
Fifth
Amendment’s
privilege against self-incrimination,” the police may ask questions
related to public safety before reading a suspect the Miranda
warnings. 467 U.S. at 657.
5
Subsequent to Quarles, the Supreme Court decided Dickerson v. United
States, 530 U.S. 428, 437–44 (2000), in which it reaffirmed Miranda and clarified
that “the Miranda rule is of constitutional magnitude.” United States v. Reyes,
353 F.3d 148, 152 (2d Cir. 2003) (citing Dickerson, 530 U.S. at 432); see also
Dickerson, 530 U.S. at 441. Courts have observed that Dickerson has, to some
extent, called into question the rationale supporting Quarles’ public safety
exception. E.g., Allen v. Roe, 305 F.3d 1046, 1050 n.4 (9th Cir. 2002) (citing
Quarles, 467 U.S. at 654, 656–57 (stating that because Miranda was not
constitutionally mandated, concern for the public safety outweighed the rule’s
prophylactic benefits)). However, the Supreme Court has never overruled Quarles.
Therefore, the Court applies it, as it is the controlling precedent on this
issue.
-13-
In this case, the state courts agreed with Petitioner that he
was
subjected
to
custodial
interrogation
when
the
sheriff’s
deputies questioned him about the source of blood on his clothing
and shoes, and asked him about a possible victim or victims. And,
it is undisputed that Petitioner did not receive Miranda warnings
at any point that night. The question is whether Quarles’ public
safety exception applies in this case and would excuse the police
officers’ failure to give Miranda warnings to Petitioner.
The breadth of the Quarles holding is open to debate. United
States v. Jones, 154 F. Supp.2d 617, 624 (S.D.N.Y. 2001) (Lynch,
D.J.). On the one hand, portions of the Quarles decision overtly
state that it is carving out a “narrow exception to the Miranda
rule in this case.” 467 U.S. at 658 (emphasis supplied). The
majority also emphasized the “kaleidoscopic situation” facing the
police, which involved “the immediate necessity of ascertaining the
whereabouts of a gun” that the accused had removed from his holster
and tossed aside in a public place where “an accomplice might make
use of it,” or “a customer or employee might later come upon it.”
Id. at 657. “[O]n these facts,” id. at 655 (emphasis supplied), the
majority determined that informing Quarles about his Miranda rights
might have discouraged him from making statements to the police
that would enable them to locate the firearm before it could pose
a danger to the public at large. Id. at 657. Other language in the
Quarles opinion suggests that the majority envisioned a broader
-14-
application
of
the
new
exception.
See
467
U.S.
at
658–59
(explaining that the exception “lessens the necessity of that
on-the-scene balancing process” police must conduct and stating
that “police officers can and will distinguish almost instinctively
between questions necessary to secure their own safety or the
safety of the public and questions designed solely to elicit
testimonial evidence from a suspect”); id. at 659 (predicting that
public safety exception would “free [officers] to follow their
legitimate
instincts
when
confronting
situations
presenting
a
danger to the public safety”).
Since Quarles, the Supreme Court has not issued any decisions
defining the boundaries of the public safety exception. The Second
Circuit applied the exception in a case where the potential dangers
to public safety—a bomb discovered in the accused’s apartment—were
more extreme than in Quarles. See United States v. Khalil, 214 F.3d
111, 115 (2d Cir. 2000). However, a survey of federal caselaw
“reveals a strong majority tendency to apply the public safety
exception to situations that go far beyond the ‘loose weapon’
scenario of Quarles and Khalil.” Jones, 154 F. Supp.2d at 626
(collecting circuit authority; citing, inter alia, United States v.
Brady, 819 F.2d 884, 887–88 (9th Cir. 1987) (officer responding to
report of a man beating a woman asked if arrested suspect had a
gun; court acknowledged distinctions from Quarles including “no
indication that [suspect] possessed a weapon [or] had placed an
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unguarded weapon in a public place” and “extended” questioning;
officer was trying to “control . . . a dangerous situation”
involving gathering crowd)).
While Petitioner’s case is not a classic “loose weapon”
scenario such as that presented in Quarles, “fair minded jurists
could disagree,” Harrington, 562 U.S. at 101 (quotation omitted),
on the reasonableness of the Court of Appeals’ conclusion that the
police were presented with exigent circumstances giving them reason
to believe that the public safety was endangered.6 The deputy who
initially encountered Petitioner observed what appeared to be wet
blood stains on the knees and thighs of Petitioner’s camouflage
suit, and on his sneakers and hands. Petitioner gave an odd and
internally inconsistent explanation of where he was going and why
he
was
walking
on
the side
of
the
road
at
night
in
frigid
temperatures, wearing clothing that was inappropriate for the
weather, and carrying a car jack, lug wrench, and screw driver.
Upon driving Petitioner to the location where he had parked his
van, the deputy observed blood in several places on both the inside
and outside of the van, and on the ground next to the van, along
6
Given the lack of the clarity on the breadth of Quarles’ holding, and the
material differences between the facts of this case and those of Quarles, the
Court cannot find that the state courts’ rulings were contrary to Quarles. See,
e.g., Bell v. Cone, 535 U.S. 685, 694 (2002) (“A federal habeas court may issue
the writ under the ‘contrary to’ clause if the state court applies a rule
different from the governing law set forth in our cases, or if it decides a case
differently than [the Supreme Court] ha[s] done on a set of materially
indistinguishable facts.”).
-16-
with an apparently blood-soaked pair of gloves on top of a car near
the van. Other deputies arrived and noticed several additional
blood spots on Petitioner’s face, and questioned him about the
blood. Petitioner initially told them that the blood was old, but
the
deputies
observed
that
it
was
fresh,
pointing
out
that
Petitioner’s worn-out sneakers were leaving bloody footprints in
the snow. This evidence reasonably supported the deputies’ belief
that one
or
more persons
had
sustained severe
injuries, and
justifiably created an immediate and heightened concern for the
safety of
those
individuals.
The
record also
shows
that the
officers’ questions were addressed to discovering the location of
any
potentially
injured
person
or
person,
and
were
thus
in
furtherance of their concern for the public safety rather than the
investigation
of
a
crime
or
elicitation
of
incriminating
statements. Although the New York Court of Appeals’ majority
opinion
did
not
cite
Quarles,
its
ultimate
holding—that
the
deputies did not violate Petitioner’s rights under Miranda—does not
represent an
“unreasonable application” of Quarles’ public safety
exception.
II.
Ground 1(b): Admissibility of Petitioner’s Statements to His
Friend at the Police Station
Petitioner
claims,
as
he
did
in
state
court,
that
his
conversation with Zelaskiewicz at the police station, overheard by
Kautz, was the functional equivalent of interrogation. Therefore,
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Petitioner argues, the Trial Court improperly allowed evidence of
his statements to Zelaskiewicz to be admitted at trial.
At approximately 1:30 a.m., while photographing Petitioner at
the Sheriff’s Department, but prior to collecting his clothes for
evidentiary purposes, Kautz and Petitioner heard a live radio
transmission that a deputy had discovered a “man down” on Knapp
Road. Kautz did not observe any reaction from Petitioner. About two
hours later, Kautz was informed that two women wanted to speak with
Petitioner; one was his girlfriend and the other was his close
friend, Zelaszkiewicz. Kautz spoke to them but did not reveal that
a dead body had been discovered. Kautz testified that Zelaszkiewicz
was insistent about seeing Petitioner. After initially rebuffing
her request, Kautz decided to permit her to speak with Petitioner.
Kautz reminded her that the request was completely her idea and
that he would be present and taking notes during her entire
conversation
with
Petitioner.
Kautz
informed
Petitioner
that
Zelaszkiewicz wanted to talk with him, and Petitioner did not
object.
During the discussion, Petitioner, Zelaszkiewicz, and Kautz
were within five to six feet of each other. Kautz took notes of
Zelaszkiewicz’s conversation with Petitioner in their presence.
Kautz testified,
I recall [Zelaszkiewicz] asking, you know, what happened,
and [Petitioner] replied, you know, I was there but I
didn’t do anything. She also asked if something went
-18-
wrong in your head, and he responded no to that. She also
asked if this
involved an animal, and he responded no. She also asked
if she—I believe she posed it as, Tell me there’s no dead
body, and he responded, I can’t do that. . . .
Supp. Tr. at 121-22. Kautz testified about additional statements
made by Petitioner that were not in response to any question by
Zelaszkiewicz, which included the following: (1) “Let the chips
fall where they may[;]” (2) “Oh, I’m going to be in jail somewhere
I’m sure[;]” (3) “It doesn’t matter what attorney I get[;]” (4)
“It’s going to turn out the same[;]” (5) “It’s an open and shut
case[;]” and (6) “I will get what I deserve I guess.”
Id.
Following the suppression hearing, the Trial Court rejected
the contention that Zelaszkiewicz was acting as an agent of the
police when she conversed with Petitioner, and further found that
Petitioner, “being aware that his statements to [Zelaszkiewicz]
were being monitored and recorded by Kautz,” “volunteered” the
statements
“without
solicitation
by
the
police[.]”
SR.831
(citations omitted). On direct appeal, a majority of the Appellate
Division found that Zelaszkiewicz’s conversation with Petitioner
did not occur at the instigation of the police, that Kautz did not
participate in any way in the conversation between the two and did
not suggest to Zelaszkiewicz any questions she should ask or
otherwise advise her how to conduct her conversation, and that
Zelaszkiewicz’s acts were not undertaken on behalf of the police to
further a
police
objective but
rather
-19-
were
motivated
by
her
personal concern for Petitioner’s well-being. Accordingly, the
Appellate
Division
affirmed
the
Trial
Court’s
ruling
denying
suppression of these statements.
The Court of Appeals granted leave to appeal and held that
Petitioner, though he had previously asserted his right to counsel,
was not subjected to interrogation or its functional equivalent
when the police allowed Zelaszkiewicz to speak with him in the
presence of Kautz, even though the officer was aware of the
possibility that Petitioner would incriminate himself while talking
to his friend. Therefore, the Court of Appeals held, “the courts
below did not err in finding that [Petitioner]’s assertions [to
Zelaszkiewicz] were voluntary and admissible at trial.” Doll, 21
N.Y.3d at 672.
The clearly established Supreme Court precedent here consists
of Miranda, 384 U.S. 436, supra, as interpreted by the Supreme
Court in later cases such as Arizona v. Mauro, 481 U.S. 520 (1987).
The purpose of the Miranda holding is to “prevent[ ] government
officials from using the coercive nature of confinement to extract
confessions
that
would
not
be
given
in
an
unrestrained
environment[.]” Mauro, 481 U.S. at 529–30; brackets in original).
Thus,
the
key
inquiry
is
whether
particular
police
conduct
constitutes “interrogation” such as would “compel[ ] [a defendant]
in any criminal case to be a witness against himself[,]” U.S.
CONST.,
amend V. See Mauro, at 481 U.S. at 525 n. 3 (citing Malloy
-20-
v. Hogan, 378 U.S. 1 (1964) (holding that the Fourteenth Amendment
requires observance of the Fifth Amendment privilege in state-court
proceedings)). Miranda’s “safeguards extend[ ] not only to express
questioning, but also to ‘its functional equivalent.’” Mauro, 481
U.S. at 526 (citation omitted). The Supreme Court has “explained
the phrase ‘functional equivalent’ of interrogation as including
‘any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response from
the suspect.’” Mauro, 481 U.S. at 526-27 (quoting Rhode Island v.
Innis, 446 U.S. at 301; footnotes omitted in original)). The latter
portion of this definition—whether there is a reasonable likelihood
of eliciting an incriminating response aspect—“focuses primarily
upon the perceptions of the suspect, rather than the intent of the
police.” Innis, 446 U.S. at 301 (emphasis supplied); accord Mauro,
481 U.S. at 527.
Here, the Court of Appeals recognized the applicable clearly
established Supreme Court precedent and, in fact, quoted Mauro in
its decision. As the Court of Appeals noted, it was “undisputed
that
the
investigator
did
not
converse
with
or
question
[Petitioner] during this encounter.” Id. at 672. The Court of
Appeals found it significant that Kautz “initially refused to allow
[Zelaszkiewicz] to meet with [Petitioner] but he relented only
after she persistently demanded to speak with [Petitioner]—and
-21-
after she was specifically informed that the officer would be in
the room taking notes of the conversation.” Id. (citing Mauro, 481
U.S. at 528). Moreover, Petitioner “was also clearly aware that the
police officer was listening to the verbal exchange since the
investigator was only a few feet away when the friends conversed.”
Id.
(citing Mauro, 481 U.S. at 528 (“There is no evidence that the
officers sent Mrs. Mauro in to see her husband for the purpose of
eliciting incriminating statements. As the trial court found, the
officers tried to discourage her from talking to her husband, but
finally
‘yielded
to
her
insistent
demands[.]’”)
(citation
omitted)).
The Court of Appeals further found that Petitioner had not
“established that a discussion of this nature rose to the level of
a
‘psychological
functional
ploy
equivalent
that properly
of
could
interrogation’
or
be
treated
a
as
subterfuge
the
to
circumvent attachment of the indelible right to counsel.” Id. at
672 (quoting Mauro, 481 U.S. at 527 (noting that there was no
suggestion or any evidence that the sergeant’s “decision to allow
Mauro’s wife to see him was the kind of psychological ploy that
properly
could
be
treated
as
the
functional
equivalent
of
interrogation”). Likewise, there is no evidence that the police
gave Zelaszkiewicz any instructions to say certain things to, or
ask specific questions, of Petitioner. There was nothing about the
presence of Zelaszkiewicz, who was simply a platonic friend and
-22-
former co-worker of Plaintiff, which would have made Petitioner
feel compelled to unburden himself to her or make any incriminating
statements. Cf. United States v. Gaddy, 894 F.2d 1307, 1311 (11th
Cir. 1990) (suspect in custody was not interrogated when aunt, who
was employed by the police department, urged him to tell police
what he knew about a crime); Snethen v. Nix, 885 F.2d 456, 457 (8th
Cir. 1989)
(suspect
in
custody
was
not
interrogated
when
he
confessed after a conversation with his mother, who had told police
before the conversation that “if [my son] did this, he will tell
me”). The fact that Kautz’s intent in allowing Zelaszkiewicz to
converse with Petitioner was to obtain incriminating evidence does
not require a finding that Kautz subjected Petitioner to the
functional equivalent of interrogation. See Mauro, 481 U.S. at 529
(“Officers do not interrogate a suspect merely by hoping that he
will incriminate himself.”) (citing Innis, 446 U.S. at 299-300;
Miranda, 384 U.S. at 478).
However, this Court agrees that, as the concurring Court of
Appeals judge observed, Mauro is distinguishable from Petitioner’s
case insofar
as
“in
Mauro,
security reasons
for
observing
acknowledged
the
the
possibility
officers
Mauro
that
and
Mauro
asserted
his
safety
wife,
might
and
but also
incriminate
himself[,]” Doll, 21 N.Y.3d at 675, n.* [sic] (concurring opn.).
Here, on the other hand, “the investigator’s only reason for being
present in the room with [Petitioner] and his friend was to
-23-
overhear
and
record
[Petitioner]’s
potentially
incriminating
statements.” Id.; see also Supp. Tr. at 126 (Kautz testified on
cross-examination
that
he
“certainly
wasn’t
discounting
th[e]
possibility” that Petitioner “would say something [the police]
could use”). Thus, the Court agrees with the concurring Court of
Appeals judge that the majority in Doll incorrectly recited the
facts in Mauro. Nonetheless, their ultimate decision did not
constitute
an
unreasonable
application
of
clearly
established
federal law as established by the Supreme Court; nor was it
contrary to clearly established law.
III. Ground 2: Fourth Amendment Violation During the Transport of
Petitioner
Petitioner reprises his claim, made on direct appeal, that the
deputies violated his Fourth Amendment rights by transporting him
to the Sheriff’s Department without probable cause, contrary to
Dunaway v. New York, 442 U.S. 200 (1979). In Dunaway, the defendant
made inculpatory statements after receiving Miranda warnings during
custodial interrogation, following his seizure by police officers
who acted on a superior’s directive to “pick up” Dunaway and “bring
him in,” even though that officer acknowledged that there was not
enough information to supply probable cause to arrest Dunaway. Id.
at 204. In Dunaway, the Supreme Court concluded that the police
violated
the
Fourth
probable
cause
to
and
Fourteenth
arrest,
they
-24-
Amendments
took
Dunaway
when,
into
without
custody,
transported him to the police station, and detained him there for
interrogation. Id. at 206-07.
Here, Petitioner argued on appeal that “[s]eizing a suspect
‘without probable cause in the hope that something might turn up’
is prohibited.” Defendant’s Appellate Brief (“Def. App. Br.”), 2012
WL 9512010, at *64-*65 (quoting Dunaway, 442 U.S. at 218). Absent
consent, he argued, probable cause was required for his seizure and
transport to the Sheriff’s Department. Id. Petitioner contends that
all derivative evidence from his arrest without probable cause,
including physical evidence and any statements he made, should have
been suppressed as “fruit of the poisonous tree.”
Respondent argues that Petitioner’s Dunaway claim is a Fourth
Amendment claim and, as such, is barred from habeas review by the
doctrine of Stone v. Powell, 428 U.S. 465 (1976) (“Stone”), because
New York provided an opportunity for full and fair litigation of
the claim. Stone, 428 U.S. at 494–95. “Notably, all that must be
shown is that the State has provided an opportunity to litigate the
habeas petitioner’s Fourth Amendment claim; it matters not whether
the petitioner actually ‘took advantage of the State’s procedure.’”
McClelland v. Kirkpatrick, 778 F. Supp.2d 316, 330 (W.D.N.Y. 2011)
(quoting Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002)).
Petitioner does not, and cannot, contend that New York failed to
provide a corrective procedure to redress his Fourth Amendment
claims. The Second Circuit has repeatedly stated that New York has
-25-
“complied with the requirement to make available ‘a statutory
mechanism’ for suppression of evidence tainted by an unlawful
search or seizure.” McPhail v. Warden, Attica Corr. Fac., 707 F.2d
67, 69 (2d Cir. 1983) (citing N.Y. Crim. Proc. Law § 710 et seq.).
Petitioner asserts instead that there was an “unconscionable
breakdown,” Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)
(en banc), in the existing process, namely, trial counsel’s alleged
ineffectiveness at the suppression hearing. Habeas
courts in this
Circuit have observed that petitioners may not make an end-run
around Stone v. Powell by equating ineffective assistance of
counsel with an “unconscionable breakdown.” E.g., Shaw v. Scully,
654 F. Supp. 859, 864 (S.D.N.Y. 1987). Even assuming that mere
ineffectiveness on the part of trial counsel could be so extremely
disruptive to state’s corrective process as to constitute an
“unconscionable breakdown,” the Court has found that trial counsel
was not ineffective. See infra, Section IV.
Petitioner also suggests that the failure of the state courts
to
explicitly
address
the
Dunaway
argument
amounts
to
an
“unconscionable breakdown” in the available corrective procedures.
Petitioner
correctly
specifically
mention
notes
the
that
Dunaway
the
trial
case;
nor
court
did
did
the
not
Fourth
Department. However, the Second Circuit rejected a similar argument
by a state habeas petitioner in Capellan, holding that “the mere
fact
the
Appellate
Division
did
-26-
not
explicitly
address
the
[petitioner’s Fourth Amendment] claim but rather adhered to its
original outcome without comment concerning [certain case law] does
not mean that the Appellate Division failed to conduct ‘“a reasoned
method of inquiry into relevant questions of fact and law.”’”
Capellan, 975 F.2d at 71 (quoting Shaw, 654 F. Supp. at 864
(quotation omitted in original; other citation omitted). Thus,
under the authority of Capellan, the state courts’ failure to
mention Dunaway is insufficient to establish an “unconscionable
breakdown” in the corrective process utilized by Petitioner here.
See, e.g., Williams v. Artus, No. 06-CV-0356VEB, 2007 WL 2712338,
at *3 (W.D.N.Y. Sept. 13, 2007) (no “unconscionable breakdown”
where petitioner asserted that “the Appellate Division neglected to
address his claim of ‘reasonableness’ in connection with the
stopping of his car via the use of explosives, along with the added
fact that the Appellate Division simply affirmed the trial courts
[sic] unsupported decision of probable cause to arrest”).
Finally, Petitioner’s belief that the state courts incorrectly
decided the relevant issues at the suppression hearing and on
direct appeal does not prove that an “unconscionable breakdown”
occurred in the corrective process. It is well established that “a
mere disagreement with the outcome of a state court ruling is not
the equivalent of an unconscionable breakdown in the state’s
corrective process.” Capellan, 975 F.2d at 72. Accordingly, the
-27-
Court finds that Petitioner’s Dunaway claim is barred from federal
habeas review. See id.
IV.
Ground 3: Ineffective Assistance of Trial Counsel at the
Suppression Hearing
Petitioner reasserts his claim, raised in his C.P.L. § 440.10
motion, that trial counsel was ineffective in the manner in which
he litigated the Fourth Amendment issues at suppression hearing. In
particular, Petitioner faults counsel for failing to “substantively
address[ ] or litigate[]” a Dunaway claim. Petitioner submitted an
affidavit from his attorney at trial, Daniel M. Killelea, Esq.
(“Trial
Counsel”),
“specifically
in
challenge
which
the
he
averred
legality
of
that
he
did
[Petitioner]
not
being
transported to the police station in Batavia from Lake Road,” and
that he had no strategic reason for failing to make that claim. The
Trial Court denied the C.P.L. § 440.10 motion without a hearing,
concluding that the issue of the lawfulness of Petitioner’s custody
was “effectively litigated” and that Petitioner “was provided
meaningful representation.”7
As an initial matter, the Court notes that this claim is not
subject to the Stone bar. See Kimmelman v. Morrison, 477 U.S. 365,
382–83 (1986) (holding that Stone’s restriction on federal habeas
7
The Second Circuit has recognized that New York State’s “meaningful
representation” standard for judging counsel’s effectiveness, set forth in People
v. Baldi, 54 N.Y.2d 137, 147 (1981), is not contrary to the Strickland standard
for purposes of applying § 2254(d)(1) of AEDPA. Rosario v. Ercole, 601 F.3d 118,
124 (2d Cir. 2010) (citations omitted).
-28-
corpus review of Fourth Amendment claims does not extend to Sixth
Amendment
ineffective
assistance
claims
founded
on
counsel’s
inadequate litigation of a Fourth Amendment issue). Therefore, the
Court may consider Petitioner’s ineffective assistance claim.
A petitioner challenging his conviction based on ineffective
assistance of counsel has the burden of showing that (a) the
counsel’s
performance
fell
below
an
objective
standard
of
reasonableness, and (b) a reasonable probability exists of a
different result in the proceeding, but for the errors of counsel.
Strickland v. Washington, 466 U.S. 668, 688 (1984). In evaluating
counsel’s performance under the first prong, courts must “indulge
a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” Id. at 689. The
second prong of the Strickland test requires the petitioner to
prove that his attorney’s deficient performance prejudiced the
defense.
Id.
reasonable
at
692–93.
probability
Prejudice
that,
but
requires
for
demonstrating
counsel's
“a
unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694.
question
is
“In
not
assessing
whether
a
prejudice
court
can
under Strickland, the
be
certain
counsel’s
performance had no effect on the outcome or whether it is possible
a reasonable doubt might have been established if counsel acted
differently.” Harrington v. Richter, 562 U.S. at 111 (citations
omitted). A reviewing court may review the Strickland prongs in
-29-
either order, and there is no reason to consider both if a
petitioner makes an inadequate showing on one. Strickland, 466 U.S.
at 697. The Court here addresses the prejudice component first.
Petitioner acknowledges that the Dunaway issue was, in fact,
raised on direct appeal, but he claims that it was not preserved
due to Trial Counsel’s failure to raise it before the Trial Court,
and therefore the issue was not addressed by either the Appellate
Division or the Court of Appeals. These assertions are belied by
the record.
In his Defendant’s Notice of Motion dated April 20, 2009,
Trial Counsel cited the Dunaway case. SR.413. Trial Counsel’s postsuppression hearing brief challenged the detention and transport of
Petitioner to the police station, arguing that “[a]t the time
[Petitioner] was handcuffed and placed into the rear of a police
car from which he could not leave, there were no facts known to
Deputy Diehl which rose to the level of probable cause to believe
defendant had committed any offense.” SR.785.
Trial Counsel
acknowledged that the police may lawfully detain someone for a
brief period prior to the existence of probable cause, but here,
Petitioner was detained in the police car “following his initial
detention and handcuffing for several hours before the police ever
contacted the owner of the business located at the intersection of
Route 5 and North Lake Road[,]” and he “wasn’t free to leave.”
Trial Counsel concluded by arguing that Petitioner remained in
-30-
handcuffs and police custody for nearly five hours prior to the
“potential existence of probable cause to effect his lawful arrest”
and that all the evidence that flowed from the arrest must be
suppressed. SR.789.
The Trial Court, in its decision denying suppression, observed
that Petitioner’s “detention ripened into a custodial situation
when, after additional evidence of a bloody confrontation was found
at
the
parking
lot,
[Petitioner]
remained
handcuffed,
was
personally searched, and transported to the Sheriffs Office. . . .
There being no corpus delicti, the Police had no probable cause to
arrest [Petitioner] based on his suspicious circumstances.” Thus,
the Trial Court acknowledged Petitioner’s challenge to all phases
of his custodial detention.
Then, in his brief on direct appeal, Petitioner’s appellate
counsel asserted that, “[a]s argued below, [Petitioner] challenges
the legality of his being placed in custody for such an extended
period of time, as well as his eventual transport to the station.”
SR.043. In his subsequent appeal to the Court of Appeals, appellate
counsel reiterated the argument that Petitioner’s constitutional
rights were violated by his “pre-warrant arrest and subsequent
transport to the station, as there was no probable cause.” SR.1325.
Furthermore, neither the Appellate Division nor the Court of
Appeals held that a Dunaway issue was unpreserved. The Appellate
Division rejected Petitioner’s “contention that the deputies were
-31-
only permitted to detain him briefly while they searched the
immediate
area
for
a
victim”
because
“[a]n
emergency
that
unquestionably threatened the life of a victim or victims existed,
. . . and [he] provided the deputies with the best avenue of
attempting to provide assistance to such victim or victims.” People
v. Doll, 98 A.D.3d at 368. In light of the “‘exigencies of the
situation,’”
id.
(quotation
omitted),
the
Appellate
Division
concluded, the actions of the deputies in detaining him were
“‘objectively
reasonable
under
the
Fourth
Amendment.’”
Id.
(quotation omitted).
Subsequently, the Court of Appeals held that Petitioner’s
challenge to the legality of his detention by the police was
without merit. Doll, 21 N.Y.3d at 672-73. Based on the foregoing
evidence that both appellate courts considered the legality of the
entire period of Petitioner’s detention, notwithstanding Trial
Counsel’s purported failure to adequately brief a claim based on
Dunaway, Petitioner cannot demonstrate that he was prejudiced. See,
e.g., Swail v. Hunt, 742 F. Supp.2d 352, 364 (W.D.N.Y. 2010)
(habeas petitioner could not demonstrate that he was prejudiced by
trial counsel’s failure to preserve the insufficiency claim by
means of a renewed motion for a trial order of dismissal after the
defense case, because the Appellate Division considered the merits
of
the
insufficiency
preservation).
claim,
As Petitioner
notwithstanding
cannot
-32-
fulfill
the
lack
Strickland’s
of
two-
pronged test even under de novo review, he necessarily cannot
demonstrate that the Trial Court unreasonably applied Strickland in
rejecting his claim of ineffective assistance.
CONCLUSION
For the reasons discussed above, Petitioner’s request for a
writ of habeas corpus is denied, and the petition is dismissed.
Because Petitioner has not made a substantial showing of the denial
of
a
constitutional
right,
the
Court
declines
to
issue
certificate of appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
December
, 2018
Rochester, New York
-33-
a
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