Opinion
02 Civ. 0824 (MBM) (GWG)
October 31, 2003
REPORT AND RECOMMENDATION
To the Honorable Michael B. Mukasey, United States District Judge
Sean Pritchett brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York County Supreme Court, Pritchett was convicted of one count of Manslaughter in the First Degree. As a persistent violent felony offender, Pritchett was sentenced to a term of twenty years to life in state prison. Pritchett is currently incarcerated pursuant to that judgment in the Shawangunk Correctional Facility in Wallkill, New York.
I. BACKGROUND
Pritchett's conviction stems from a homicide at a bar in midtown Manhattan on October 13, 1995.
A. The Crime
1. The Prosecution's Case
At some point during the evening of October 13, 1995, Pritchett went to the Blarney Stone Bar in Manhattan to join his girlfriend, Vanity. (Pritchett: Tr. 772-73). At approximately 8:30 p.m., while Pritchett was outside waiting to leave, Vanity engaged in an argument with Denise (Doris) Bynum. (Pritchett: Tr. 776; Bynum: Tr. 369). Bynum was the girlfriend of Carmelo (Tony) Quinones, a bouncer at the bar, and she was five months pregnant. (Bynum: Tr. 365-68). Bynum "mushed [Vanity] in the face" and "kicked at her." (Bynum: Tr. 370). Vanity left the bar and returned with Pritchett, who approached Quinones and his friends by the ice machine. (Lewis: Tr. 70; Dent: Tr. 533). After some hostile talk, Pritchett said to Bynum, "Bitch, I'll blow your fucking head off." (Lewis: Tr. 70, 73-74; Ferguson: Tr. 179; Bynum: Tr. 373; Dent: Tr. 535, 571). Bynum replied, "What, you going to shoot me?" and in response, Pritchett pulled out a black automatic pistol. (Lewis: Tr. 71, 74).
Quinones moved in front of Bynum to protect her (Lewis: Tr. 71; Bynum: Tr. 374; Dent: Tr. 535) and said, "You're not going to shoot anybody." (Bynum: Tr. 374; Pritchett: Tr. 778). Then, Pritchett shot Quinones in the stomach. (Lewis: Tr. 71, 74; Bynum: Tr. 374; Dent: Tr. 535). Quinones ran out of the bar clutching his abdomen and collapsed on the sidewalk outside. (Bynum: Tr. 374, 376; Dent: Tr. 535-36, 540). Inside the bar Pritchett threatened to shoot Bynum, who pleaded: "Please don't shoot me. I'm pregnant." (Ferguson: Tr. 161-62; Bynum: Tr. 375). Pritchett yelled, "Anybody move, I'll shoot your fuckin' brains out," and then walked out of the bar. (Ferguson: Tr. 160; Bynum: Tr. 375).
Quinones died from his gunshot wound later that day at St. Vincent's Hospital (Blumenthal: 266-67).
2. The Defense Case
Pritchett's defense at trial was justification. He testified that after he returned to the bar with Vanity, there was a confrontation during which a man identified as "Deon" hit him, causing him to fall backwards and hit the wall. (Pritchett: Tr. 777-78, 806). Bynum's brother (James Dent), Quinones and Bynum were all nearby. (Pritchett: Tr. 778). Pritchett then pulled out a gun and told Bynum to "Back the fuck up," whereupon she said "What you gonna do, shoot me?" (Pritchett: Tr. 778). Quinones then rushed at Pritchett and grabbed his jacket. (Pritchett: Tr. 779, 845). In response, Pritchett grabbed Quinones' arm and Quinones grabbed Pritchett's other arm, which held the gun. (Pritchett: Tr. 779, 845). Quinones then let go of Pritchett's arm and reached for his pocket. (Pritchett: Tr. 779). Pritchett, who had seen the outline of a knife in Quinones' pocket earlier in the evening (Pritchett: Tr. 774), feared that Quinones was reaching for a knife. (Pritchett: Tr. 779-80). Pritchett shot Quinones, intending to hit him in the leg, but "couldn't get low enough" and instead shot him in the stomach. (Pritchett: Tr. 779-80, 844). After seeing Quinones stagger out of the bar, Pritchett took a cab to the Village and then a train to the Bronx where he threw the gun down a sewer. (Pritchett: Tr. 782).
B. The Arrest
Detectives Frank Hopkins and Brian Costello testified that they went to the Blarney Stone Bar at approximately 8:45 p.m. to investigate the death of Quinones. (Costello: Tr. 325-26; Hopkins: Tr. 440). The detectives learned from a witness that a photographer had photographed the perpetrator and his girlfriend shortly before the shooting. (Hopkins: Tr. 443; Lewis: Tr. 82-83). Detective Costello located the photographer, Bill Butterworth, and developed the photos. (Costello: Tr. 328-29; Butterworth: Tr. 139). The police made "wanted" posters using the picture and distributed them at the Port Authority and at various precincts. (Hopkins: Tr. 445-46, 460-61). The photograph of the shooter appeared in the New York Post on November 14, 1995. (Hopkins: Tr. 448, 462). The police eventually identified the man in the photo as Sean Pritchett. (Hopkins: Tr. 449).
On December 16, 1995, the police went to 3506 21st Street, Apartment 3C, in Queens, where they had been informed Pritchett might be staying. (Hopkins: Tr. 450). A shoot-out between Pritchett and the police ensued. (Hopkins: Tr. 453; Finn: Tr. 499-501). Pritchett was taken into custody by the Emergency Services Unit and transported to Bellevue Hospital. (Hopkins: Tr. 452-53). Pritchett sustained numerous gunshot wounds which resulted in serious injuries, including the amputation of one of his legs, loss of a testicle, and damage to the occipital area of his brain.See Medical Records of Sean Pritchett ("Medical Records") (annexed as Ex. G to Affidavit of Meredith Boylan, dated June 30, 2003 ("Boylan Aff.")); Affidavit of Sean Pritchett, dated July 13, 2003 ("Pritchett Aff"), ¶¶ 4-8.
Pritchett was not arrested for the Blarney Stone shooting until December 28, 1995. A New York County Grand Jury charged Pritchett with Murder in the Second Degree on January 19, 1996. Brief for Defendant-Appellant, dated January 22, 2001 ("Pet. App. Div. Brief") (annexed as Ex. A to Boylan Aff.), at 10; Boylan Aff. ¶¶ 5-6.
C. Statements Made to the Police
On August 12 and October 21, 1996, a combined Huntley/Wade hearing was conducted by the Honorable Carol Berkman, New York County Supreme Court. The evidence showed that four days after the shoot-out, on the evening of December 20, 1995, Lieutenant Roger Parrino and Detective Valentine Troll went to speak with Pritchett in the Intensive Care Unit ("ICU") at Bellevue Hospital. (Troll: Hr'g Tr. L 90-91; Parrino: Hr'g Tr. H. 64). Hospital staff informed them that Pritchett had not taken morphine since that morning and appeared coherent and responsive. (Troll: Hr'g Tr. I. 92; Parrino: Hr'g Tr. n. 65). The officers began interviewing Pritchett but terminated the interview because Pritchett was "fading in and out" of consciousness and stated that he had to have an operation on his leg — apparently not realizing that it had already been amputated. (Troll: Hr'g Tr. I. 92-94; Parrino: Hr'g Tr. H. 66-67).
Citations to Hr'g Tr. I. and Hr'g Tr. IL refer to the transcripts of August 12, 1996 and October 21, 1996 respectively, the days on which a pre-trial suppression hearing was held.
The following evening, December 21, 1995, the officers returned to Bellevue and discovered that Pritchett had been transferred from the ICU to recovery. (Troll: Hr'g Tr. I. 95; Parrino: Hr'g Tr. II. 67-68). A doctor told them that Pritchett was stable and responsive. (Troll: Hr'g Tr. I. 95; Parrino: Hr'g Tr. n. 68). Lieutenant Parrino testified that upon introducing himself, he read Pritchett his Miranda rights and Pritchett gave a positive verbal response to each one as he read it. (Parrino: Hr'g Tr. II. 69-72). Detective Troll was talking to a nurse, and saw, but did not hear, Parrino reading Pritchett his rights. (Troll: Hr'g Tr. II. 23-24).
Pritchett then recounted the events surrounding the Blarney Stone shooting. (Troll: Hr'g Tr. I. 98-100; Parrino: Hr'g Tr. II. 72-75). He admitted shooting Quinones and told the officers that he "should have shot the bitch instead." (Troll: Hr'g Tr. I. 99; Parrino: Hr'g Tr. II. 73-75).
On December 23, 1995, the officers again returned to the hospital to interview Pritchett. (Troll: Hr'g Tr. I. 101-02; Parrino: Hr'g Tr. II. 76). Without re-issuing Miranda warnings, they spoke with Pritchett about the circumstances of his arrest and confronted him with his December 21st statement. (Troll: Hr'g Tr. n. 3-6; Parrino: Hr'g Tr. II. 77-78). In explaining the confession he gave on the 21st, Pritchett stated that he could "just say you didn't read me my rights." (Troll: Hr'g Tr. n. 5; Parrino: Hr'g Tr. II. 77). When they asked if he would speak with an assistant district attorney, Pritchett said "only with an attorney now," so they left without questioning him further. (Troll: Hr'g Tr. I. 6; Parrino: Hr'g Tr. H. 77-78).
Pritchett moved to suppress identification evidence and the statements taken by the police. In a written decision, Justice Berkman denied the motion to suppress with respect to Pritchett's December 21, 1995 statements on the grounds that (1) Pritchett was not under arrest when the confession was made, had no constitutional right to be arrested, and thus any delay in his being arrested did not violate his right to counsel, and (2) he was able to voluntarily and knowingly waive hisMiranda rights notwithstanding his physical and mental condition. See Decision of Justice Berkman, dated January 15, 1997 ("Hr'g Decision") (annexed as Ex. F to Boylan Aff), at 7-9. The court suppressed any statements made on December 23, 1995, however, because Pritchett'sMiranda warnings had not been re-issued. Id. at 9. Prosecutors had informed the court and Pritchett prior to the hearing that they would not seek to introduce the December 20th statements in their direct case at trial. See id., at 8 n. 4.
Following trial, Pritchett was convicted of Manslaughter in the First Degree. (Tr. 1172-75). He was adjudicated as a persistent violent felony offender and sentenced to a term of twenty years to life on July 31, 1998. (Tr. 1-25).
D. Pritchett's Direct Appeal
Pritchett appealed his conviction to the Appellate Division, First Department on January 22, 2001, raising the following three points in his appellate brief:
1. Whether the court erred in refusing the defense request to charge the lesser offense of second-degree manslaughter when defendant testified that he tried to aim his shot as low as possible, at the deceased's leg, to minimize any injury and he "wasn't trying to hurt" anybody — only to protect himself ( U.S. Const. Amend. XIV; N.Y. Const. Art. 1, § 6).
2. Whether appellant's custodial hospital statements were involuntary, in violation of his privilege against self-incrimination and his right to counsel and due process of law ( U.S. Const. Amends. V, VI, XIV; N.Y. Const. Art. 1, § 6).
3. Whether appellant was denied due process of law (a) when the court permitted the prosecution to call a disfigured police officer even though his testimony about the arrest-scene shootout was cumulative (b) by the prosecutor's inflammatory comments about appellant's own responsibility for his injuries and (c) when the court changed its initial Sandoval ruling to permit the prosecutor to ask appellant if he had been "sticking up whore houses" ( U.S. Const. Amend. XIV; N.Y. Const. Art. 1, § 6).
Pet. App. Div. Brief at 2. On May 24, 2001, the Appellate Division, First Department, affirmed the conviction. People v. Pritchett 283 A.D.2d 328 (1st Dep't 2001). The court held that (1) the trial court had properly declined to charge the jury on second-degree manslaughter because there was no rational basis for the jury to conclude that Pritchett's act was reckless but not intentional and (2) the totality of the circumstances established that the confession was voluntary and that, while the statement was taken in a hospital where Pritchett was recovering from serious injuries, there was "no evidence that defendant's medical condition affected the voluntariness of his statement." Id. at 328-29. The court stated that it had considered and rejected Pritchett's remaining claims. Id. at 329.
Pritchett requested leave to appeal to the New York Court of Appeals on June 6, 2001.
By letter to Chief Judge Judith Kaye, Pritchett sought review of all issues raised in his brief to the Appellate Division and enclosed copies of that brief. See Letter to The Honorable Judith Kaye from Abigail Everett, dated June 6, 2001 (annexed as Ex. D to Boylan Aff). In a separate letter to Judge George Bundy Smith, Pritchett again sought review of all arguments raised in his brief to the Appellate Division but specifically discussed the court's refusal to charge second-degree manslaughter as "particularly leave worthy." See Letter to The Honorable George Bundy Smith from Abigail Everett, dated June 18, 2001 (annexed as Ex. D to Boylan Aff), at 1. The Court of Appeals denied leave to appeal on July 11, 2001. People v. Pritchett 96 N.Y.2d 906 (2001).
E. Pritchett's Habeas Petition
Pritchett timely submitted his petition to this Court on January 2, 2002. See 28 U.S.C. § 2244(d)(1). The petition raises the same three grounds raised before the Appellate Division, although Pritchett has limited his third claim, relating to due process, to challenging the validity of the prosecutor asking Pritchett whether he had been "sticking up whorehouses" (Ground 3(c), above). See Addendum (annexed to Petition for a Writ of Habeas Corpus, filed February 4, 2002), at 1-7.
II. APPLICABLE LAW ON HABEAS REVIEW
Prior to applying for federal habeas relief, a habeas corpus petitioner must pursue all available state court remedies to challenge his state conviction. See 28 U.S.C. § 2254(b)(1)(A). In this case, Pritchett appealed his conviction to the Appellate Division. He also requested that the New York Court of Appeals consider all claims contained in his brief submitted to the Appellate Division. This was sufficient to meet the exhaustion requirement. See. e.g., Morgan v. Bennett, 204 F.3d 360, 369-71 (2d Cir.) (initial request for Court of Appeals to review all claims contained in brief deemed sufficient even though supplemental letter only discussed two of those claims), cert. denied, 531 U.S. 819 (2000). In addition, Pritchett fairly presented the constitutional nature of his claims to the state courts. See. e.g., Dave v. Attorney Gen., 696 F.2d 186, 190 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).
Under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See. e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). To be entitled to habeas relief a petitioner must demonstrate that the conviction resulted from a state court decision that violated federal law. See. e.g., id. at 68.
In addition, habeas corpus relief may not be granted unless a state court decision (1) was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Moreover, a state court determination of a factual issue is "presumed" to be correct and that presumption may be rebutted only "by clear and convincing evidence."Id. § 2254(e)(1).
A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it unreasonably applies a governing legal rule to the particular facts of a case. Id. at 413. The federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was simply incorrect. Id. at 409-10. Where the state court does not set forth an explicit holding as to the federal constitutional claim, a federal court must apply the deferential 28 U.S.C. § 2254(d) standard to the state court's "implicit holding." See Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003); see also Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (statute satisfied as long as "neither the reasoning nor the result" of the state court decision contradicts governing Supreme Court law).
With this standard in mind, the Court examines each ground raised in the petition.
III. GROUND ONE OF THE PETITION
In his first claim for relief, Pritchett maintains that he was deprived of his right against self-incrimination, right to counsel, and right to due process with respect to the admission of his December 21 confession. Essentially, he makes two arguments challenging the confession: that it was not voluntary and that it was obtained in violation of his right to counsel.
A. Voluntariness
Pritchett argues that "there was no evidence . . . to support the detectives' claims" that they read him his Miranda rights on December 21, 1995. Addendum at 2. He also seeks to discredit the medical personnel who informed the police officers that he was "coherent" by arguing that he was "not fully aware of what was going on until December 23, 1995."Id. Further, he reasserts that he "was still under the influence of the same mind altering drugs and suffering from the same injuries [as he was on December 20th]." Id.
The Due Process Clause of the Fourteenth Amendment is violated if statements that are a product of coercion are admitted against a criminal defendant. See. e.g., Rogers v. Richmond, 365 U.S. 534, 540-41 (1961). Before the State can introduce a statement made by a defendant in custody during an interrogation without the presence of an attorney, the State must show that the defendant made a voluntary, knowing, and intelligent waiver of his right to counsel and his right not to incriminate himself.See generally Miranda v. Arizona, 384 U.S. 436, 475 (1966). Nonetheless, case law makes clear that a seriously ill patient — even one confined to a hospital — may give such a waiver of his Miranda rights. See. e.g., United States v. Cristobal, 293 F.3d 134, 143-44 (4th Cir.) (confession given by seriously injured patient following emergency surgery voluntary where patient never indicated a desire for questioning to stop and account was lucid and detailed), cert. denied, 537 U.S. 963 (2002); Campaneria v. Reid, 891 F.2d 1014, 1029 (2d Cir. 1989) (statement given in ICU found voluntary because defendant, despite being in significant pain, was alert and awake, and the interrogation relatively short), cert. denied, 499 U.S. 949 (1991); United States v. Martin, 781 F.2d 671, 673-74 (9th Cir. 1985) (statement made while suffering great pain and under the influence of Demerol found voluntary where accused was awake and relatively coherent). In Mincey v. Arizona, the Supreme Court made clear that the "[d]etermination of whether a statement is involuntary . . . requires careful evaluation of all the circumstances of the interrogation." 437 U.S. 385, 401 (1978).
Here, the issue of the voluntariness of the confession was addressed during a two-day pre-trial suppression hearing. At the hearing, testimony was received from the two detectives who were at the hospital on the date of the confession. Following the hearing, the trial court issued a written ruling finding that on December 21
the officers . . . learned that the defendant had been removed from the Intensive Care Unit. Hospital personnel further advised the officers that defendant was responsive and in stable condition. Lieutenant Parrino read the defendant his Miranda rights and defendant acknowledged the warnings and agreed to make a statement. Over the next hour, defendant spoke with the officers and gave a detailed statement. Defendant appeared lucid and oriented during the course of this interview.
. . . .
[T]he court finds . . . the officers' testimony regarding the submission of Miranda warnings and the generally alert state of defendant at the time of questioning to be credible. The evidence reveals that Detective [Troll] saw [Lieutenant Parrino] with the Miranda rights card in his hand by defendant's bedside and [Lieutenant Parrino] recalls giving such warnings. Moreover, the hospital records support the police officers' testimony that defendant was mentally alert at the time of this interrogation. Defendant had been removed from the Intensive Care Unit and the detectives had received medical clearance to speak with the defendant. Moreover, defendant's detailed account, which apparently contained information that the officers did not know independently prior to questioning, further supports the People's contention that defendant was coherent at the time he spoke with police.
Hr'g Decision at 5, 8-9. The Appellate Division agreed that "[a]lthough the statement was taken in a hospital where defendant was recovering from serious injuries, there is no evidence that defendant's medical condition affected the voluntariness of his statement." Pritchett 283 A.D.2d at 328-29.
Pritchett's burden is to show that the state court's finding as to the voluntariness of his statement was "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d)(2). Under the statute, fact-based determinations of state courts are "presumed to be correct." Id. § 2254(e)(1). That presumption of correctness can only be overcome by "clear and convincing evidence." Id.
Pritchett asserts in his petition that he was not coherent on December 20 and that "The record is devoid of any evidence that there was any change in my physical condition from 12-20-95 to 12-21-95 other than the fact that I was moved from the intensive care unit to the recovery unit." Addendum at 2. He also asserts that he was under the influence of "mind altering drugs." Id. In a later submission, Pritchett describes his medical condition in more detail, emphasizing that he was being administered morphine and an anti-psychotic drug and that a doctor described him as experiencing delirium. See Pritchett Aff. ¶¶ 4-10.
The mere fact that Pritchett was being administered medication, however, would not show that he was unable to knowingly waive hisMiranda rights. The "delirium" note in the medical record dates from December 20, not December 21, and describes the delirium as "intermittent." Medical Records at 16. The same December 20 record describes him as "awake, responsive, speech — clear fluent" and "neurologically stable." Id. at 16, 18. Moreover, the December 21 medical record — from the date he was interviewed — states that he was "stable" with no complaints. Id. at 18. The testimony at the hearing showed that medical personnel indicated that Pritchett was "coherent," "stable," "responsive" and "able to talk" on December 21. (Troll: Hr'g Tr. I. 95; Troll: Hr'g Tr. IL 12, 17; Parrino: Hr'g Tr. II. 68). Pritchett's own detailed recounting of the events further supports the finding that he was lucid and thus able to waive his Miranda rights free of coercion. (Troll: Hr'g Tr. I. 98-99; Parrino: Hr'g Tr. n. 72-73).
Pritchett misunderstands his burden in overturning the trial court's determination of his medical condition. He asserts that the respondent's submission "fell well short of proving that the state court's determination regarding the voluntariness of the statements used against me were [sic] not unreasonable." Pritchett Aff. ¶ 3. In fact, the burden is just the opposite. Under 28 U.S.C. § 2254(e)(1), it is Pritchett who must prove the unreasonableness of the state court's factual determination. Based on the evidence available to the trial court, Pritchett has not shown by "clear and convincing" evidence that the state court made "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2).
Pritchett suggests that Mincey requires a different outcome. See Petitioner's Memorandum of Law, filed February 4, 2002 ("Pet. Mem."), at 6. In Mincey, the Supreme Court found a confession given by a seriously injured person to be the product of coercion rather than free will. 437 U.S. at 398-401. Mincey's confession, however, was obtained in the intensive care unit just hours after the event, id. at 396; Pritchett's statement was taken after he had been moved out of the ICU five days after his injuries (Troll: Hr'g Tr. I. 95; Parrino: Hr'g Tr. n. 67-68). Mincey was unable to talk and had to write answers to the detective's questions on pieces of paper, 437 U.S. at 396; Pritchett had no difficulty communicating, (see generally Parrino: Hr'g Tr. n. 72-73). After being read his Miranda warnings, Mincey repeatedly asked that the interrogation stop until a lawyer was present, 437 U.S. at 396; after being read his Miranda warnings, Pritchett did not request counsel (Troll: Hr'g Tr. I. 100). Despite Mincey's repeated requests for counsel, his interrogation continued for approximately four hours, 437 U.S. at 396; Pritchett spoke to the police for approximately one hour (Troll: Hr'g Tr. I. 100).
In sum, this Court has no basis for disturbing the state court's conclusion that Pritchett's statement was voluntary. Thus, this claim must be denied.
B. Denial of the Right to Counsel
Pritchett further argues that his statement on December 21, 1995 was taken in violation of his Fifth and Sixth Amendment right to counsel because of the twelve-day delay between the date he was taken into custody (December 16, 1995) and the date of his arrest (December 28, 1995). See Pet. Mem. at 8-9. Citing New York law, Pritchett argues that his right to counsel for the instant case had been triggered by the fact that the case had "move[d] from the investigatory stage to the accusatory stage." Id. at 8. Thus, Pritchett argues that delaying his arrest until December 28, 1995 was calculated only "for the police to get a statement . . . in [the] absence of counsel." Id. Pritchett also appears to argue that the delay in arraigning him on charges stemming from the shoot-out with the police in Queens was calculated to ensure that he would not be appointed counsel. See id. at 10.
Justice Berkman considered this argument and found that "[w]hile the cases cited by defendant support the proposition that suppression may be warranted where the police delay arraignment in order to circumvent the defendant's right to counsel, such cases are not applicable where, as here, the police have not even effected an arrest." Hr'g Decision at 7. The court held that "a defendant enjoys no constitutional right to be arrested" and thus Pritchett's right to counsel was not implicated. Id. at 8 (citing, inter alia. United States v. Hoffa, 385 U.S. 293, 309-10 (1966)). The Appellate Division affirmed this ruling, holding that "there was no evidence that defendant was represented by counsel on charges stemming from the circumstances of his apprehension, that he had been arraigned on that case, or that the commencement of criminal proceedings in that case or the instant case was delayed for any reason other than the defendant's hospitalization." Pritchett 283 A.D.2d at 329.
Pritchett does not cite any "clearly established" law of the Supreme Court that was unreasonably applied by the Appellate Division in reaching this result. Nor is the Court aware of any such law. Furthermore, he has not presented "clear and convincing evidence" which would warrant setting aside the factual determination made by the state courts regarding the circumstances surrounding his December 21, 1995 statements.
Pritchett's main argument is that his arrest was delayed in order to deprive him of his right to counsel. This argument fails for several reasons. First, whether his right to counsel had attached or not, Pritchett gave a knowing waiver of that right. In United States v. Yousef, the Second Circuit held that a criminal defendant who had waived his Miranda rights could not later argue that he should have been provided with counsel nevertheless. 327 F.3d 56, 143-44 (2d Cir. 2003). The court summarily dismissed the argument as "inconsistent with the entire body of law that has developed under Miranda . . . including the principle that an individual can waive his or her rights against self-incrimination and to have an attorney present during questioning."Id. at 144. Because Pritchett affirmatively waived his right to counsel after being given full Miranda warnings, the delay in his arrest did not deprive Pritchett of his right to counsel during questioning.
Any claim that Pritchett's Sixth Amendment right to counsel was violated also must fail. The Sixth Amendment right to counsel does not attach until "adversary judicial criminal proceedings have been initiated against [the defendant]." Kirby v. Illinois, 406 U.S. 682, 688 (1972) (citing cases). As of December 21, 1995, adversary proceedings — such as the filing of an accusatory instrument — had not been initiated against Pritchett in either the Queens shoot-out case or the Manhattan homicide case. Indeed, even if Pritchett had already been charged with the shoot-out charges, it would make no difference to the outcome here as the Sixth Amendment right to counsel is "offense-specific." E.g., Texas v. Cobb, 532 U.S. 162, 167-68 (2001) (citing McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). Thus, Pritchett could have been questioned regarding the homicide even in the absence of counsel.
Finally, any argument that the delay in arrest by itself required the suppression of his statements must also fail. While a delay between arrest and arraignment can provide a basis for suppressing statements made during that period, it is merely one factor to be examined as part of the consideration of the voluntariness of the confession. See. e.g., Sklar v. Ryan, 752 F. Supp. 1252, 1264 (E.D. Pa. 1990) ("An undue delay between arrest and arraignment only gives rise to a constitutional claim when the delay results in a confession that was coerced." (citations omitted)), aff'd, 937 F.2d 599 (3d Cir. 1991); Holmes v. Scully, 706 F. Supp. 195, 202 (E.D.N.Y. 1989) ("[T]o the extent that federal habeas courts have even considered the constitutionality of delaying arraignment of state defendants, they have only done so as part of a Fifth Amendment based analysis of the voluntariness of confessions."). Here, the confession was not taken following Pritchett's arrest but rather prior to his arrest. Thus, any delay between arrest and arraignment would be irrelevant to an evaluation of the voluntariness of his confession. Moreover, as already noted, the circumstances surrounding Pritchett's confession indicate that it was voluntary. Pritchett has not met his burden of proving by clear and convincing evidence that the trial court unreasonably so found. See 28 U.S.C. § 2254(e)(1).
Pritchett's citations to Escobedo v. Illinois, 378 U.S. 478 (1964), andMaine v. Moulton, 474 U.S. 159 (1985), are unavailing. See Pet. Mem. at 10. Escobedo is a pre-Miranda case in which the suspect was not warned of his right to remain silent and requested but was denied an opportunity to consult with counsel. 378 U.S. at 490-91. In Moulton, adversarial judicial criminal proceedings had commenced against the accused, implicating his Sixth Amendment right to counsel. 474 U.S. at 162-66, 170-71. None of those circumstances are present in this case.
In sum, Pritchett has not established that the use of his December 21, 1995 statement violated his right against self-incrimination, right to due process of law, right to counsel or any other federal right.
IV. GROUND TWO OF THE PETITION
Pritchett's second claim for habeas relief relates to the trial court's failure to charge the jury on the lesser-included offense of Manslaughter in the Second Degree. The court charged the jury on Murder in the Second Degree and Manslaughter in the First Degree. (Tr. 1131-37). Pritchett was convicted of Manslaughter in the First Degree.
Under New York law, a person commits Manslaughter in the Second Degree when he "recklessly causes the death of another person." N.Y. Penal Law § 125.15(1). The term "reckless" is defined as being "aware of and consciously disregard[ing] a substantial and unjustifiable risk" that a particular result will occur. N.Y. Penal Law § 15.05(3). Pritchett argues that in light of the evidence presented at trial, the jury reasonably could have concluded that he consciously disregarded the risk he posed to Quinones because he was in fear of his life at the time of the shooting. See Addendum at 5. The State responds that even if a reasonable view of the evidence would support such a finding, the decision of a state court in a non-capital case not to charge the jury on a lesser-included offense does not violate Supreme Court precedent. See Boylan Aff. ¶ 43.
The Supreme Court has held that due process requires a trial court to submit jury instructions regarding lesser-included offenses in capital cases if the evidence would support such a verdict. Beck v. Alabama 447 U.S. 625, 637-38 (1980). However, the Court explicitly declined to consider "whether the Due Process Clause would require the giving of such instructions in a non-capital case." Id. at 638 n. 14. The Second Circuit also has not decided the issue of lesser-included offense instructions in non-capital cases. See Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir. 1996) (per curiam); Knapp v. Leonardo, 46 F.3d 170, 179 (2d Cir.), cert. denied, 515 U.S. 1136 (995): Rice v. Hoke, 846 F.2d 160. 164 (2d Cir. 1988). Thus, because there is no "clearly established" federal due process right to a charge on lesser-included offenses, a state court's decision not to instruct the jury on a lesser-included offense in a non-capital case necessarily cannot be "contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1).
Furthermore, in Jones the Second Circuit explicitly held that because "a decision interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases would involve the announcement of a new rule, we hold that Teague [V1 Lane, 489 U.S. 288 (1989)] precludes our consideration of the issue." 86 F.3d at 48; accord Till v. Miller, 1998 WL 397848, at *4 (S.D.N.Y. July 16, 1998) ("[A] claimed error in failing to include a lesser included offense instruction in a non-capital case is not a cognizable claim in a habeas corpus proceeding."). Teague bars a habeas court from "announc[ing] a new rule [that is] not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301. Jones held that neither of the limited exceptions to Teague applies to a defendant's request to submit a lesser-included offense in a non-capital case. 86 F.3d at 48. Thus, even assuming arguendo that the trial court committed constitutional error in failing to submit the lesser-included offense to the jury, Pritchett's claim for habeas corpus relief would still have to be denied.
V. GROUND THREE OF THE PETITION
Pritchett argues that he was denied due process under the Fourteenth Amendment when the trial court changed its original Sandoval ruling and permitted the State to ask him on cross-examination whether he had been "sticking up whorehouses" at the time of the crime. In his brief to the Appellate Division, Pritchett's due process claim also included arguments concerning the testimony of a disfigured police officer and allegedly inflammatory comments by the prosecutor concerning how Pritchett obtained his injuries. See Pet. App. Div. Brief at 2. Pritchett does not raise these arguments in the present petition.
On May 18, 1998, before the jury was chosen, the trial court held aSandoval hearing to determine the use of Pritchett's prior bad acts for impeachment. See generally People v. Sandoval, 34 N.Y.2d 371 (1974) (trial court may hold a preliminary hearing to determine what prior crimes or bad acts may be used to impeach a defendant's credibility should he testify in his own defense). The court held that if Pritchett were to testify, the People would be allowed to inquire into his two prior felony convictions. (Tr. 102). The court otherwise precluded inquiry into other uncharged conduct and the use of guns in the two prior convictions "given the fact that such evidence shown to the jury might indicate the defendant has a propensity to use a weapon and shoot another person." (Tr. 102-03).
Soon after the trial began, but a week before Pritchett actually testified, the People sought to reopen the issue and asked specifically to be allowed to impeach Pritchett with his statement on December 21, 1995 that "he was supporting himself by robbing whorehouses in Queens." (Tr. 196-98). Pritchett objected on prejudice grounds. (Tr. 197). Over this objection, the trial court held that the statement was "extremely relevant to his credibility" and "not unfairly prejudicial in the sense that it makes no reference to the defendant actually firing any weapon or hurting anybody in the course of any such robberies." (Tr. 250-51). When the prosecutor asked Pritchett about this statement on cross-examination, Pritchett responded that he could not remember what he had talked about with the detectives on December 21, 1995 but that he "couldn't have" made the statement. (Pritchett: Tr. 813-14).
Pritchett's claim regarding the admission of uncharged conduct reveals no constitutional error. Federal habeas review of state court convictions is limited to determining whether an error rose to the level of a constitutional violation. See. e.g., Estelle, 502 U.S. at 68. Rulings by state trial courts on evidentiary matters are generally a matter of state law and pose no federal constitutional issue, Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y.), aff'd, 71 F.3d 406 (2d Cir. 1995), unless the alleged errors resulted in a trial that "deprive[d] the defendant of fundamental fairness," thereby violating the defendant's constitutionally guaranteed due process rights, Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). A decision to permit impeachment using a defendant's prior bad acts under Sandoval constitutes an evidentiary ruling. See Senor v. Greiner, 2002 WL 31102612, at * 12 (E.D.N.Y. Sept. 18, 2002) ("A claim based on an alleged Sandoval violation . . . deals with an evidentiary question and may present an issue for habeas relief, but only if the petitioner establishes that the trial court committed error that constitutes a deprivation of a constitutionally recognized right."); see also Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) ("[A]dmission of prior convictions for the purpose of impeaching the defendant has been characterized as evidentiary in nature and is therefore not redressable in a federal habeas corpus proceeding absent a showing that the particular errors were of constitutional magnitude.").
Here, the prosecutor only briefly questioned Pritchett regarding whether he had ever told a police officer that he had been "sticking up whorehouses." (Pritchett: Tr. 813-14). When Pritchett denied that he had made the statement, the prosecutor turned to other matters. (Pritchett: Tr. 814). Pritchett does not argue that the prosecutor lacked a good faith basis for making the inquiry and, after Pritchett denied the statement, it was not again adverted to. Under these circumstances, and given the other significant evidence against Pritchett, the pursuit of this line of questioning hardly deprived Pritchett of "fundamental fairness." Rosario, 839 F.2d at 924. Certainly Pritchett has not shown that the decision to admit this evidence was "contrary to" or involved an "unreasonable application of Supreme Court law.
Conclusion
For the foregoing reasons, the petition should be denied.
PROCEDURE FORFILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Honorable Michael B. Mukasey, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Mukasey. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Am, 474 U.S. 140 (1985).