Opinion
00 Civ. 5518 (LTS)(FM).
June 14, 2004
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA T. SWAIN
I. Introduction
Petitioner Joe Hotchkiss ("Hotchkiss") brings this pro se habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction, on one count each of Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degrees, following a jury trial in Supreme Court, New York County. (Pet. ¶¶ 1, 4, 6). On August 1, 1996, Justice Michael J. Obus, before whom the case was tried, sentenced Hotchkiss to concurrent prison terms aggregating to a term of twenty-five years to life. (See id. ¶¶ 2-3).
Following his arrest, Hotchkiss made three statements to the police over the course of approximately twenty-two hours. The first of these statements was exculpatory; the other two were inculpatory. In his petition, Hotchkiss contends that the police intentionally delayed his arraignment so that they could secure the second and third statements before Hotchkiss obtained counsel. (See id. ¶ 12.A(A)). Hotchkiss further alleges that the police failed to repeat the Miranda warnings before he gave his second statement, thereby also tainting his third statement. (See id. ¶ 12.A(B)). Hotchkiss contends that the improper questioning conducted by the police and the prosecutor violated his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. (See id.).
For the reasons that follow, Hotchkiss' petition should be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Hotchkiss should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
II. Facts
A. Suppression Hearing
1. Testimony
On June 13, 1996, Justice Obus conducted a multifaceted suppression hearing at which four prosecution witnesses testified: Detective Carlton Berkley ("Berkley") and Police Officers Jesse Murphy ("Murphy"), John Deresto ("Deresto") and Josh Ulan ("Ulan"). Their testimony established that on December 2, 1995, shortly before 10:30 p.m., Ronald Mondie ("Mondie") was shot in the vicinity of 370 Convent Avenue in Manhattan. (See S. 21, 31, 141, 244). A witness at the scene told Ulan that the suspects were two black males who were running south on Convent Avenue. (Id. at 245-46). The same witness also told Ulan that one of the men was wearing a black leather jacket, and the other a white jacket with black stripes. (Id. at 246). Ulan transmitted this description over his police radio. (Id. at 246). While seated in his patrol car on Convent Avenue, Murphy heard the transmission. (Id. at 141-42, 179-80). Soon thereafter, he saw two men wearing jackets that matched Ulan's description jump a fence and run into St. Nicholas Park. (Id. at 142-44). One of the men was later identified as Hotchkiss. (Id. at 143). Murphy began chasing the men on foot. (Id. at 144). Although he identified himself as a police officer, the men ignored his directive to stop. (Id. at 145, 165). Once in the park, Murphy saw that the two men were running with a third suspect. (Id. at 145). Murphy eventually apprehended Andrew Jackson ("Jackson") when Jackson fell while trying to climb a fence. (Id. at 145-47). Deresto also had responded to Ulan's radio transmission, and he apprehended Hotchkiss outside the park. (Id. at 221-28).
"S." refers to the transcript of the suppression hearing.
The officers took Hotchkiss and Jackson to 370 Convent Avenue, where Mondie was lying in an ambulance. (See id. at 155). Mondie identified the two suspects as having participated in the shooting. (Id. at 155-56, 192-94). The third man running in the park also was apprehended and brought to 370 Convent Avenue. (Id. at 155, 175). When Mondie was asked if this man was also a "shooter," he responded "no." (Id. at 155).
Hotchkiss and Jackson were brought to the 30th Precinct, where Murphy read them their Miranda rights using a printed insert in his memo book. (Id. at 156-61). Although Hotchkiss responded affirmatively to each of Murphy's questions, indicating that he understood his rights and was willing to be questioned, the police did not ask him about the shooting at that time. (See id. at 161-63).
At approximately 11:55 p.m., Detective Angelo Rosario ("Rosario") debriefed Hotchkiss in the presence of Berkley. (See id. at 24, 27, 30, 51). Before beginning the interview, Rosario advised Hotchkiss of his Miranda rights. (Id. at 25-26). After Hotchkiss signed a written waiver form, he made a statement ("Exculpatory Statement"), in which he denied any involvement in the shooting. (See id. at 26, 28, 97). That Exculpatory Statement was later reduced to writing and reviewed and signed by Hotchkiss. (Id. at 28-29).
At approximately 3 a.m. on December 3, Murphy took Hotchkiss and Jackson to Central Booking, where they were placed in separate cells. (See id. at 163, 196-97). At Central Booking, the police typically continue the processing of arrestees. (Id. at 120-21). Unbeknownst to Murphy, Mondie had died at approximately 2:30 a.m. (See id. at 60, 163). After learning of Mondie's death, Murphy returned to the precinct at approximately 8 a.m. (Id. at 164). Shortly after he arrived, Hotchkiss and Jackson also were returned there from Central Booking. (Id.). At approximately 8:30 a.m., Berkley also was advised of Mondie's death. (Id. at 61). He returned to the precinct from his house between noon and 1 p.m. (Id. at 61-62). Berkley testified that he was uncertain how far the processing of Hotchkiss at Central Booking had proceeded before Hotchkiss was returned to the precinct. (Id. at 120-21).
At approximately 2 p.m., Berkley told Hotchkiss that he was now facing a murder charge because Mondie had died. (Id. at 33-34, 81, 122-24). Hotchkiss indicated that he was willing to talk, but Berkley spent time with him only intermittently because Jackson was also being questioned. (Id. at 122-24).
At approximately 5:40 p.m., Berkley began a more extensive session with Hotchkiss. (Id. at 110, 122-23). Berkley was unable to recall whether he read Hotchkiss his Miranda rights again at the outset of that session. (Id. at 104-05). Eventually, after approximately twenty-five minutes of questioning, Hotchkiss admitted some involvement in the shooting. (Id. at 111). Berkley later reviewed the facts with Hotchkiss a second time so that he could prepare a "word-for-word" written statement ("First Inculpatory Statement"), which Berkley and Hotchkiss both signed. (Id. at 35, 37). In that First Inculpatory Statement, Hotchkiss evidently admitted shooting Mondie because he believed that Mondie had been involved in an attempted robbery at his apartment. (See id. at 282). During the one and one-half hours that Berkley spent with Hotchkiss to secure the First Inculpatory Statement, Hotchkiss never asked to speak with an attorney. (Id. at 106, 111).
Later that evening, Assistant District Attorney Alex Busansky ("Busansky") came to the precinct with a video technician. (Id. at 41). After reading Hotchkiss his Miranda rights and securing a written acknowledgment, Busansky conducted a videotaped interview with Hotchkiss' permission. (See id. at 41-43). In his statement to Busansky ("Videotaped Statement"), Hotchkiss reaffirmed the truthfulness of his First Inculpatory Statement. (See id. at 282-83).
After the four prosecution witnesses testified at the hearing, Hotchkiss rested without adducing any additional evidence of his own. (Id. at 251).
2. Ruling
On June 17, 1996, Justice Obus issued an oral ruling regarding Hotchkiss' suppression motions. Justice Obus found that Berkley had not repeated the Miranda warnings before asking the questions that elicited Hotchkiss' First Inculpatory Statement. (Id. at 282). Nevertheless, the Justice concluded that Hotchkiss' rights were not violated. (Id. at 286-87). As the Justice explained:
although approximately 15 hours had gone by and the investigation was now one for murder, [Hotchkiss] had already been advised of and waived his Miranda rights twice, the second time in writing. He was in continuous custody and was a focus of the investigation of the shooting which was a very serious matter throughout.
(Id. at 286).
Rejecting Hotchkiss' Sixth Amendment claim, Justice Obus also found that Hotchkiss' right to counsel had not yet attached even though he was brought back to the precinct from Central Booking before making his First Inculpatory Statement. (Id. at 286-87).
Finally, Justice Obus concluded that Hotchkiss appeared "quite lucid and comfortable" on the Videotaped Statement and "confirmed that he was aware of his rights throughout and was still willing to waive them and give his statement, which he did." (Id. at 287).
Based on these findings and conclusions, Justice Obus denied Hotchkiss' motion to suppress his post-arrest statements.
B. Trial and Sentencing
Because Hotchkiss challenges only Justice Obus' pretrial rulings, there is no need to review the trial proof in detail. Suffice it to say, the jury found Hotchkiss guilty of Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degrees after hearing evidence which included both the First Inculpatory and Videotaped Statements. (See Pet. ¶¶ 4, 6; Def.'s Br. on Appeal at 16-20; People's Br. on Appeal at 25).
On August 1, 1996, the court sentenced Hotchkiss to concurrent prison terms aggregating twenty-five years to life. (Pet. ¶¶ 2, 3).
C. Subsequent Legal Proceedings
Hotchkiss appealed his conviction to the Appellate Division, First Department. In his brief on appeal, Hotchkiss alleged that Justice Obus should have suppressed his First Inculpatory and Videotaped Statements because the police delayed his arraignment unnecessarily in order to obtain those statements before he had the benefit of counsel. (See Def.'s Br. on Appeal at 27-33). Hotchkiss further contended that his First Inculpatory Statement should have been suppressed because the police failed to readvise him of hisMiranda rights before beginning their renewed interrogation, and that his Videotaped Statement, although preceded by a waiver of his Miranda rights, was tainted by his First Inculpatory Statement because there was an insufficient interval between the two statements. (Id. at 33-37). Hotchkiss also argued that the introduction of the Videotaped Statement at trial was not harmless error. (See id. at 38-39).
On April 15, 1999, the Appellate Division, First Department, unanimously affirmed Hotchkiss' conviction. People v. Hotchkiss, 691 N.Y.S.2d 3, 3-4 (1st Dep't 1999). The court held that the questioning that led to Hotchkiss' First Inculpatory and Videotaped Statements was properly conducted without defense counsel present because, even though his arrest processing had commenced, the "judicial process had not yet begun." Id. at 4. The Appellate Division noted that "[t]here was no evidence that [Hotchkiss'] arraignment was 'imminent' or that there was an unnecessary delay in arraignment" before the statements were taken. Id. Indeed, the court concluded that the further questioning was warranted once the police learned that Hotchkiss "faced a more serious charge." Id.
The Appellate Division further held that the police had no duty to readminister Miranda warnings to Hotchkiss before securing the First Inculpatory Statement because he previously had been advised of his rights, had waived them, and was "not a novice to the criminal justice system." Id. As the court noted, because Hotchkiss had "remained in continuous custody, nothing occurred that would have induced [him] to believe he was no longer the focal point of the investigation, and there was no reason to believe that [he] had forgotten or no longer understood his constitutional rights." Id. (internal quotation marks omitted).
The Appellate Division also observed that, even if Hotchkiss' First Inculpatory Statement were inadmissible, the Videotaped Statement would not have been tainted because it was made four hours later and was preceded by Hotchkiss' acknowledgment that "he had previously been advised of and understood his rights, was aware of his rights throughout the proceedings, and willingly waived them again." Id.
Finally, the Appellate Division concluded that any error in admitting Hotchkiss' First Inculpatory Statement was harmless because it simply repeated the essence of his Videotaped Statement, which was taken after he "no longer [was] under the influence of the prior questioning." Id.
On July 13, 1999, the New York Court of Appeals summarily denied Hotchkiss' application for leave to appeal. People v. Hotchkiss, 93 N.Y.2d 1003 (1999). His habeas petition, which was received by the Pro Se Office of this Court on June 22, 2000, is therefore timely.
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, 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] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists all would agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)). Section 2254(d)(2) further authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Taylor, 529 U.S. at 389.
B. First Inculpatory Statement
Hotchkiss' petition advances two arguments with respect to the First Inculpatory Statement. First, he argues that the decision to interrupt the Central Booking process, and therefore his arraignment, violated his Sixth Amendment right to counsel. Second, he contends that his Fourteenth Amendment due process rights were violated because the First Inculpatory Statement was elicited without first reminding him of his Miranda rights and securing a separate waiver.
1. Sixth Amendment
The Sixth Amendment right to counsel attaches "at or after the time that adversarial judicial criminal proceedings have been initiated." Kirby v. Illinois, 406 U.S. 682, 688 (1972); see also Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000) (accused is entitled to representation "at all critical stages of a criminal proceeding, including the pretrial stages, trial, and sentencing"). In habeas proceedings, federal courts look to state criminal procedure law to determine when such proceedings have commenced. See Deshawn E. v. Safir, 156 F.3d 340, 349 (2d Cir. 1998); Meadows v. Kuhlmann, 812 F.2d 72, 76-77 (2d Cir. 1987); Hemphill v. Senkowski, No. 02 Civ. 7093 (DC), 2004 WL 943567, at *8 (S.D.N.Y. May 3, 2004). In New York State, Section 100.05 of the Criminal Procedure Law provides that criminal proceedings are commenced by the filing of an accusatory instrument, such as a felony complaint. N.Y. Crim. Proc. Law § 100.05 (McKinney 2000). The New York courts also have indicated that the right to counsel can attach at an arraignment or upon the issuance of an arrest warrant. See Hemphill, 2004 WL 943567, at *8; Kirby v. Senkowski, 141 F. Supp.2d 383, 398 (S.D.N.Y. 2001); Gonzalez v. Sullivan, No. 88 Civ. 1459 (JBW), 1990 WL 126189, at *1 (E.D.N.Y. Aug. 30, 1990).
Here, there is no indication that any accusatory instrument was filed against Hotchkiss before he was removed from Central Booking. Moreover, the record is devoid of any evidence that Hotchkiss' arraignment was imminent. Indeed, the only witness who was questioned about this subject was Berkley. He testified that he was unsure how far along in the process Hotchkiss was at the time that he was taken back to the precinct following Mondie's death. Thus, in the absence of any showing that Hotchkiss' arraignment was imminent or that he was removed from Central Booking solely for the purpose of delay, Hotchkiss cannot show, as he must, that Justice Obus's determination that his "right to counsel certainly had not yet attached" when he made his First Inculpatory Statement, (S. 286-87), was an unreasonable application of clearly established federal law.
Similarly, in its decision, the First Department held that Hotchkiss' First Inculpatory Statement was properly secured without counsel present because the judicial process had yet to begin and there was no evidence that his arraignment was "imminent" or that his arraignment was unnecessarily delayed. Hotchkiss, 691 N.Y.S.2d at 4. The court further concluded that the additional investigation which took place following Hotchkiss's return to the precinct was warranted because he "faced a more serious charge" than he had when he gave his Exculpatory Statement. See id. Hotchkiss has not adequately rebutted the presumptive correctness of these findings, nor has he shown that the Appellate Division's decision was either contrary to, or an unreasonable application of clearly established federal law.
Hotchkiss consequently has not shown that his Sixth Amendment rights were violated in connection with the taking of his First Inculpatory Statement. See Sease v. Goord, No. 01 Civ. 1378 (HB), 2003 WL 23100261, at *7 (S.D.N.Y. Dec. 30, 2003) (habeas petition denied although the petitioner's arraignment was delayed as a consequence of his return to the Manhattan Robbery Squad from Central Booking so that he could participate in lineups concerning unrelated robberies); see also Haywood v. Portuando, 288 F. Supp.2d 446, 466-67 (S.D.N.Y. 2003) (Rakoff, J., adopting Report and Rec. of Gorenstein, Mag, J.) (rejecting Fourteenth Amendment due process claim "[b]ecause the delay in bringing [the petitioner] to court for arraignment was justified based on the circumstances of the ongoing investigation"); Irons v. Ricks, No. 02 Civ. 4806 (RWS), 2003 WL 21203409, at *9-*11 (S.D.N.Y. May 22, 2003) (denying habeas petition in the absence of any evidence that the twenty-seven hour delay in arraignment was caused by anything other than the need to investigate petitioner's role in several robberies).
2. Fourteenth Amendment
The Fifth Amendment protection against self-incrimination is incorporated into the Fourteenth Amendment due process clause,Malloy v. Hogan, 378 U.S. 1, 6-11 (1964), and therefore prohibits a state's use of coerced statements in the prosecution of a criminal defendant, Rogers v. Richmond, 365 U.S. 534, 540-41 (1961). In his petition, Hotchkiss claims that his Fourteenth Amendment due process rights were violated because the First Inculpatory Statement was taken without giving him renewedMiranda warnings, much less securing a separate waiver.
Under the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), a criminal suspect must be advised of his rights and waive them before a statement that he makes during a custodial interrogation may be used against him. However, "once an arrested person has received a proper Miranda warning, the fact that questioning is stopped and then later resumed does not necessarily give rise to the need for a new warning." United States v. Banner, 356 F.3d 478, 480 (2d Cir. 2004) (citingUnited States v. Weekley, 130 F.3d 747, 751 (6th Cir. 1997)). Instead, the voluntariness of any subsequent statement depends on the totality of the circumstances. Deshawn E., 156 F.3d at 346 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);Haynes v. Washington, 373 U.S. 503, 513-14 (1963); and 18 U.S.C. § 3501(b)). Renewed warnings generally are unnecessary "unless the circumstances [have] changed so seriously that [the suspect's] answers no longer [are] voluntary, or . . . he no longer [is] making a 'knowing and intelligent relinquishment or abandonment' of his rights."Wyrick v. Fields, 459 U.S. 42, 47 (1982) (quoting Edwards v. Arizona, 451 U.S. 477, 482 (1981)).
By the time that Hotchkiss gave his First Inculpatory Statement to Berkley, he had been read his Miranda rights twice (first by Murphy and then by Rosario), had waived his rights both times, and had signed a written waiver form at Rosario's request. (S. 24-28, 156-63). While there admittedly was a considerable gap between the warnings given by Rosario and the initiation of Berkley's interrogation, Hotchkiss was in "continuous custody" and remained "the focal point of the investigation" throughout this period. See Hotchkiss, 691 N.Y.S.2d at 4. Accordingly, when Hotchkiss learned of Mondie's death and that the potential charges were now murder charges, he had no reason to believe that he would not remain a suspect.
At the suppression hearing, Berkley testified that he did not remember if Hotchkiss had eaten anything from the time of his arrest until the time he had made his First Inculpatory Statement. (S. 96). He also conceded that he had lied to Hotchkiss about statements allegedly made by Jackson in order to induce Hotchkiss to make a confession. (See id. at 101). Nevertheless, Berkley also indicated that he did not raise his voice above a conversational tone, did not use strong language, and never slapped Hotchkiss during his interrogation. (Id. at 69, 105). It also appears that Hotchkiss was well aware of his rights during his interrogation by Berkley since he had been through the criminal justice system before. In fact, Hotchkiss subsequently confirmed during his Videotaped Statement that he had been "aware of his rights throughout" the time that he was being questioned. (Id. at 282-83, 287).
In these circumstances, as both Justice Obus and the Appellate Division concluded, there is no reason to believe that the First Inculpatory Statement should have been preceded by a third set ofMiranda warnings (and a third waiver) or that the Statement was involuntary. See, e.g., Mitchell v. Gibson, 262 F.3d 1036, 1058 (10th Cir. 2001) (petitioner's rights not violated by the use of an inculpatory statement taken without renewed Miranda warnings where "he was experienced in the juvenile criminal justice system" and the "nature of the interrogation itself did not change" even though he "progressed from a witness to a suspect" during the questioning); James v. Ricks, No. 01 Civ. 4106 (SJ), 2003 WL 21142989, at *7 (E.D.N.Y. Mar. 6, 2003) (rejecting Miranda claim where there was no showing of intimidation or coercion and "[p]etitioner [did] not contest that he understood his rights and voluntarily decided to waive them").
In his reply memorandum, Hotchkiss advances the further argument that his First Inculpatory and Videotaped Statements should be deemed involuntary pursuant to 18 U.S.C. § 3501(c) because they were not obtained within six hours of his initial arrest or detention. (See Pet'r's Reply at 6 n. 3). That provision, by its terms, applies only to prosecutions brought "by the United States or by the District of Columbia." 18 U.S.C. § 3501(c). Ironically, the statute was enacted as part of a Congressional effort to repeal Miranda. In Dickerson v. United States, 530 U.S. 428, 444 (2000), the Supreme Court rejected this attempt on the ground that "Miranda announced a constitutional rule that Congress may not supersede legislatively."
In sum, because the state courts properly concluded that the First Inculpatory Statement was preceded by adequate Miranda warnings and voluntarily made, Hotchkiss is not entitled to habeas relief on the basis of the People's use of it at trial.
C. Videotaped Statement
Assistant District Attorney Busansky read Hotchkiss hisMiranda rights and secured an express waiver before he took Hotchkiss' Videotaped Statement. (S. 41-43). Hotchkiss contends that his Videotaped Statement nevertheless was tainted by his First Inculpatory Statement because the prosecution failed to establish that there was a "pronounced break" between the two. (Pet. ¶ 12.A(B)). In advancing this argument, Hotchkiss necessarily assumes that he was inadequately advised of hisMiranda rights before he gave his First Inculpatory Statement. However, because the state court properly concluded that no such violation occurred, the Videotaped Statement clearly was not tainted by anything that occurred before Busansky questioned Hotchkiss.
In any event, even if the First Inculpatory Statement violated Hotchkiss' rights, this does not mean that his Videotaped Statement was inadmissible. As the Supreme Court observed inOregon v. Elstad, 470 U.S. 298 (1985):
[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.Id. at 314.
Here, the state courts concluded that Hotchkiss' First Inculpatory Statement was not coerced. (See S. 286-87;Hotchkiss, 691 N.Y.S.2d at 4). Moreover, Hotchkiss did not introduce any evidence to suggest that this conclusion was wrong. Having failed to rebut the presumptive correctness of the state courts' findings, Hotchkiss is not entitled to habeas relief on the theory that his Videotaped Statement was tainted by his earlier First Inculpatory Statement. See, e.g., Nova v. Bartlett, 211 F.3d 705, 709 (2d Cir. 2000) (even if petitioner's first statement were deemed incriminating, his later confession after proper warnings would still be admissible in the absence of "any evidence presented to indicate that the questioning . . . was coercive or that [the] statements were otherwise involuntary"); Tankleff v. Senkowski, 135 F.3d 235, 245 (2d Cir. 1998) (petitioner's second statement was admissible despite his earlier "unwarned" confession because the earlier questioning "did not entail that degree of coercion that would irredeemably taint [the] 'second' Mirandized confession," and because there was "no indication in the record that [petitioner] did not understand his rights once he was given the warnings or that his subsequent waiver of those rights was anything but knowing and voluntary"); Mastin v. Senkowski, 297 F. Supp.2d 558, 605 (W.D.N.Y. 2003) (denying relief because petitioner "provided no new evidence, apart from his own testimony at trial, to refute the [state courts'] factual findings concerning the circumstances of his interrogation, which are presumed to be correct").
IV. Conclusion
For the foregoing reasons, Hotchkiss' petition should be denied. Furthermore, because Hotchkiss has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Laura Taylor Swain, at the United States Courthouse, 40 Centre Street, New York, N.Y. 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N.Y. 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Swain. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).