Hill v. Colvin

GARTH HILL, Petitioner, v. JOHN COLVIN, Respondent.

9:16-CV-1301 (MAD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 6, 2018

APPEARANCES:

GARTH HILL

Petitioner, pro se

11-B-2398

Five Points Correctional Facility

Caller Box 119

Romulus, New York 14541

HON. ERIC T. SCHNEIDERMAN

Attorney for Respondent

New York State Attorney General

120 Broadway

New York, New York 10271

OF COUNSEL:

ALYSON J. GILL, ESQ.

Ass't Attorney General

MAE A. D'AGOSTINO United States District Judge

DECISION and ORDER

I. INTRODUCTION

Petitioner Garth Hill seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet.").¹ Respondent opposes the petition. Dkt. No. 15, Respondent'sAnswer; Dkt. No. 15-1, Respondent's Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("R. Mem."); Dkt. No. 16, 16-1, State Court Records ("SCR"); Dkt. No. 16-2, Transcripts ("T.").² Petitioner was advised that he could, but was not required to, file a reply. Dkt. No. 18. No reply was submitted.

For the reasons that follow, petitioner's habeas petition is denied and dismissed.

II. BACKGROUND

A. Arraignment

On January 3, 2011, petitioner was arraigned pursuant to a grand jury indictment. T. 4-8; see also SCR 49-51 (Indictment). The first count, burglary in the third degree (N.Y. Penal Law ("Penal Law") §140.20), alleged that on October 29, 2010, petitioner knowingly entered and unlawfully remained in McKinley Brighton School, with the intent to commit a crime therein. SCR 49; T. 5. The second count, sexual abuse in the first degree (Penal Law §130.65(1)), alleged that while inside the school, petitioner subjected a female victim to sexual contact by forcible compulsion. SCR 49; T. 5. The final two counts, forcible touching (Penal Law §130.52), contended that petitioner intentionally and illegitimately forcibly touched the sexual or intimate parts of two female victims for the purpose of degrading or abusing the victims or gratifying petitioner's sexual desires. SCR 49, T. 5. Petitioner pleaded not guilty. T. 6.

B. The Suppression Hearing

Petitioner requested a Wade/Huntley³ hearing: (1) seeking suppression of the victims' identification of petitioner; (2) claiming that the combination of a photographic array and live line-up was improper; (3) alleging the lineup was unduly suggestive, and (4) arguing petitioner's statements to the police were involuntarily made. SCR 91-92. Respondent opposed the motion. SCR 93-95. On April 29, 2011, a suppression hearing was held in the Onondaga County Court. T. 42-65.

1. The People's Evidence

On October 29, 2010, Detective Raul Santana, of the City of Syracuse Police Department's abused persons unit, was assigned to investigate claims that a man had sexually assaulted two teachers at McKinley Brighton school. T. 49-51. Upon arrival, Santana met with the responding officer, several staff members, and the two victims. T. 51, 66. Santana presented one of the victims with a photographic array⁴, but the victim did not recognize anyone from the array. T. 62-63; SR 155-56. Similarly, the other victim also did not recognize anyone depicted in the photographic array when it was later presented to herby Detective Jeff Bernozzi.⁵ T. 68-69, 109-10, 116-17; SR 162-63.

Santana was informed that the possible suspect had dropped his wallet, which contained identification, and a pack of cigarettes. T. 52, 66-67. The identification belonged to petitioner. T. 52. Santana discovered that petitioner was on parole and was reporting to his parole officer later that day; Santana spoke with petitioner during that meeting. T. 52-53. At that time, petitioner was presented with a form that explained his Constitutional rights. T. 54; SCR 154.

Petitioner reported that he could read, so Santana asked him to read the first point on the form regarding petitioner's right to remain silent. T. 54-56. Petitioner attempted to read the line; however, his pace was slow and he sounded groggy, as if he was under the influence of drugs or alcohol. T. 55-58, 86, 88-89. Petitioner's parole officer conducted a drug screen and found that petitioner was under the influence of psychotropic drugs, specifically PCP. T. 61, 86.

Despite his demeanor, petitioner indicated that he understood his right to remain silent, and every additional right that was thereafter communicated to him by Santana. T. 58, 89. Those rights included the right to an attorney (which could include appointed counsel) and the right to terminate the conversation and wait for an attorney to be present. T. 59, 90-92. Throughout the conversation, petitioner continually indicated his understanding (and memorialized it by placing his initials after each individual clause on the form); Santana perceived these representations to be genuine. T. 59-60, 89-92.

After the Constitutional rights form was read and signed, Santana and petitioner engaged in a limited discussion. T. 60. Santana testified that petitioner understood and answered the questions that followed in a manner that further solidified his belief that petitioner comprehended the conversations that were occurring. T. 94-96. Petitioner indicated that he did not have any identification on him, but did not answer where it might be. T. 60, 92-93. Petitioner admitted that he was at McKinley Brighton school; however, he never gave any reason for being there. T. 60, 93. At that time, petitioner asked for an attorney and all questioning ceased. T. 60, 94.

On February 9, 2011, petitioner participated in a court-ordered, live lineup at the Justice Center. T. 14-15, 63-64; see also SCR 1-5, 157-61 (pictures taken prior to and during the lineup). The procedure was on the record and petitioner's attorney, the prosecutor, and several law enforcement individuals attended. SCR 140-153, 164. The petitioner was the only individual that was common to both the photographic array and the live lineup. T. 78-79, 84.

The lineup consisted of six men. T. 77; SCR 142-43. A pool of potential "fillers" - the other individuals who would stand in the lineup with petitioner - were chosen independently by staff at the Justice Center; however, Detective Rory Gilhooley was able to make the final selection regarding which five additional individuals would be in the lineup. T. 77, 128, 142-44. Petitioner's attorney objected to the "fillers", specifically stating that none of them had "distinguishable marks on [their] neck[s]" like petitioner did; petitioner was the tallest person, in some instances by a sizeable amount, in the lineup; petitioner was placed in the center, next to men with starkly different complexions; and petitioner's face was shaped differently, specifically much rounder, than the other "fillers." SCR 140-41, 143. Petitioner's attorneychose the position in which he stood - position number four - but Detective Gilhooley determined where to place the other five "fillers." T. 79-80, 83, 129-30, 144; SCR 141.

Both victims attended the lineup, although they were always separated from one another. T. 73-76, 119-21, 125-26; SCR 145-46. Before the lineup commenced, both women were given identical instructions by Gilhooley, the detective who conducted the lineup. T. 127, 133, 135; SCR 146-51, 166, 169. They were informed that the men would file in, step forward, step back, and then the victim would be asked if she needed the process repeated or if she would like for any or all of the men to turn to the side. T. 133-34, 136; SCR 146-51, 166, 171. The victims were also told that they were free to move about and walk up and down the length of the one-sided glass to get a better look at the individuals within the lineup. T. 80-81, 83-84; SCR 146, 149, 166, 171. Both women stood stationary, before position number four, and identified petitioner as the man who assaulted them on October 29, 2010.⁶ T. 83-84, 134-36, 138, 147, 151-52, 166-73.

2. Petitioner's Defense

The defense did not call any witnesses or present any evidence. See SCR 45 (minutes from the Wade/Huntley hearing).

3. The Court's Decision

On June 20, 2011, the court handed down its decision. T. 162-176; see also SCR 53-66 (written Decision/Order dated June 17, 2011). The findings of fact were consistent with the People's case.

Specifically, regarding the Miranda waiver, the court foundthat despite the fact that [petitioner] appeared to be under the influence of drugs, he was able to understand the questions asked of him as evidenced by the appropriateness of his response. After being advised of his rights, [petitioner] then waived his rights and agreed to speak with the police. [Petitioner] was asked if he had identification on him to which he replied that he did not. [Petitioner] indicated that he was in the area of McKinley Brighton school. [Petitioner] then stated he wanted to speak with his lawyer at which point all questioning . . . ceased.

SCR 55-56. The court's findings of fact regarding the lineup were also consistent with the testimony outlined above. SCR 57-61.

The court denied petitioner's motion to suppress, finding that (1) there was nothing improper with having a live lineup for the victims after they were both unable to identify petitioner in a prior photo array; therefore, any related in court identification by said victims was admissible and (2) petitioner was capable of understanding the Constitutional rights contained in the Miranda form and knowingly, voluntarily, and intelligently waived said rights. T. 163-64. Specifically, the court relied upon the credible testimony from the officers to determine that "the line up identification was not the result of undue suggestiveness even though [petitioner] was the only person common to both the line up and photographic array." SCR 62. Citing to state law, the court held that "identification procedure[s are] not unduly suggestive if the witness viewed a defendant in a line up after viewing that defendant's photo in an array even if the witness was unable to make an identification from the photo array." SCR 62 (...