Linnen v. Poole

766 F.Supp.2d 427

Anthony M. LINNEN, Petitioner,

v.Thomas POOLE, Respondent.

No. 05–CV–6484(VEB).

United States District Court, W.D. New York.

Feb. 4, 2011.

Anthony H. Linnen, Romulus, NY, pro se.J. Michael Marion, Erie County District Attorney's Office, Buffalo, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Pro se petitioner Anthony M. Linnen (“Linnen” or “petitioner”) has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Linnen challenges the constitutionality of his state custody pursuant to a judgment convicting him, after a jury trial in Erie County Court of New York State Supreme Court, of one count of second degree (intentional) murder (N.Y. Penal Law § 125.25(1)). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. Events Leading to Petitioner's Arrest

The conviction here at issue stems from the homicide of sixteen-year-old John Watson, a drug dealer who had a room in the back portion of petitioner's house at 1203 Kensington Avenue in the City of Buffalo. By agreement with Linnen, Watson conducted his drug-selling business out of Linnen's house. Watson's dead body was found on January 22, 1999, on Tariko Place, an alleyway that runs parallel to Kensington Avenue. Tariko Place consists of a network of garages and alleyways connected to each other or separated by fences, making it difficult to traverse from Kensington Avenue (where Linnen's house was located) to Tariko Place. Indeed, the only way to get from one to the other would be by climbing over a fence or a building. T.461, 484, 622, 624–28, 639.¹

Watson was found tied up in a fetal position with a telephone cord; his body was wrapped in a bed sheet and was lying on two squares of cardboard. T.314–15. He was dressed in the clothing that his father had last seen him wearing on January 18, 1999 (a black “hoody” sweatshirt, a t-shirt, a blue Army jacket, black pants, and Timberland-brand boots. T.270, 315, 316. There was a piece of paper on the decedent's body that said, in scrawled handwriting, “BSC, one down, two to go, payback”. A pager and a set of keys were found on the body, but no wallet, identifying documents, or money were recovered. T.316–18.

The following day, January 23, 1999, Detectives Ortiz, Krawczyk and Masecchia of the Buffalo Police Department went to 1203 Kensington Avenue in response to a message left on the homicide department's answering machine that a person named “Tony” at that address might know something about the murder of John Watson. Transcript of Suppression Hearing dated June 29, 1999 (“6/29/99 Tr.”) at 5, 18. Petitioner answered the door and spoke with the officers. The police did not issue the Miranda warnings on that date. When asked if he knew why the officers were there, petitioner responded “because of Baby John,” id. at 6, meaning John Watson. Petitioner invited the detectives inside to talk about the investigation, but denied knowing anything about it. Petitioner told the police officers that he had last seen Watson in their apartment and in the company of two women on January 19, 1999, sometime between 7:00 and 8:00 P.M. Id. at 13–14, 16. Linnen mentioned that the way the body was found sounded like the modus operandi of some people from Box Street he had met while he was in prison; they had had told him they would wrap people up and beat them and then dump their bodies. Id. at 8, 16.

Detective Ortiz testified that on January 23rd petitioner was co-operative and was “more than willing to let us do or ask him anything that we wanted” 6/29/99 Tr. at 8. Petitioner never asked them to leave or stated that he did not wish to speak any further with them. Before leaving, the police requested and obtained petitioner's signature on a consent-to-search form, and then allowed the detectives to go through the apartment. Id. at 9–10; see also Suppression Hearing Exhibit No. 6. Although the officers did not seize anything, Detective Ortiz took note of an assortment of Ramen Noodles in petitioner's kitchen cupboards, believing them to be of some significance given the autopsy finding that the victim had consumed noodles close in time to his death. 6/29/99 Tr. at 11–12. The detectives left petitioner's apartment at about 2:15 p.m.

On January 25, 1999, petitioner failed to report to parole. On January 26, Detective Ortiz called defendant's parole officer to ask about defendant's history and why he was on parole (a manslaughter conviction involving a female acquaintance). Transcript of Suppression Hearing dated October 27, 1999 (“10/27/99 Tr.”) at 53, 107.

On January 28, 1999, two other detectives from the BPD, Detective Chella and Detective Giardina, went to 1203 Kensington at 5:15 p.m. in continuation of the Watson homicide investigation. The officers did not read the Miranda warnings. Petitioner maintained a cooperative manner, answered questions, and signed a new consent-to-search form. Detective Chella told petitioner he did not have to sign the form if he did not want to, but petitioner signed the form without any signs of reservation. Id., 38, 41.

The officers seized some blank lined paper, some paper with handwriting on it, a telephone bill, a pre-test questionnaire for AIDS education, and nine sheets of paper dealing with self-image. 10/27/99 Tr. at 44–45. Detective Chella then asked petitioner if he would accompany the detectives back to police headquarters to provide a statement regarding the last time he had seen the decedent. Petitioner agreed, expressing no hesitation or reservations about doing so. Transcript of Suppression Hearing dated October 19, 1999 (“10/19/99 Tr.”) at 25. Petitioner was not handcuffed. No threats were made to defendant and the only promise made to him was that he would be given a ride back home. 6/29/99 Tr. at 45–46. The officers drove Linnen downtown to police headquarters where they conducted an interview and then took a formal statement. See Suppression Hearing Exhibit No. 3. At no time did petitioner tell the detectives that he no longer wished to speak with them or inquire about an attorney. See 6/29/99 Tr. at 46; 10/19/99 Tr. at 29–30. In fact, petitioner acknowledged at the suppression hearing that he voluntarily gave the police this statement. 10/29/99 Tr. at 20.

Afterwards, the detectives drove petitioner home as promised. 6/29/99 Tr. at 46. Petitioner was still co-operative and consented to letting the detectives look through his house again. When Detective Chella asked the defendant if he could take a blue sheet used as an ironing board cover, petitioner demurred but did allow the officer to cut off a piece of fabric and take that. With petitioner's permission, the detectives also seized a cream-colored telephone cord. Id. at 48; see also 10/19/99 Tr. at 37–38. The detectives gave Linnen their cards and asked him to call if he heard anything about Watson's death. 6/29/99 Tr. at 48. Linnen claimed at the suppression hearing that, at the end of that meeting, he told the officers the next time they spoke he wanted to have an attorney with him. 10/29/99 Tr. at 22, 23, 79. The police officers testified that Linnen at no time mentioned having an attorney present at that meeting or any future meetings.

Detective Chella's next contact with petitioner was on February 3, 1999, when he received a phone call from a frightened and upset Linnen, who said that he had been beaten up by a group of gang members and had spent most of the evening at the hospital emergency room. He told Detective Chella that he had gotten assaulted because the police were following him and telling people that he had something to do with Watson's death. Detective Chella told petitioner that he was unable to speak with him at the time but agreed to see him the following morning. Petitioner said that he had to report to Parole Officer Humphrey's office on February 4, at 9:00 A.M., the next morning. Linnen told Detective Chella he could speak with him before or after the parole meeting. 10/19/99 Tr. at 41, 43–44; see also 6/29/99 Tr. at 50.

The following morning, February 4, 1999, Detective Chella telephoned Senior Parole Officer Henry Conforti and asked to be made aware if petitioner showed up for his meeting so that the detective could speak with him. By that point, Detective Chella considered petitioner a suspect in the Watson investigation. 6/29/99 Tr. at 48–49, 51.

Petitioner failed to report for his meeting with Parole Officer Humphrey on February 4th. 10/27/99 Tr. at 110. After making an unsuccessful attempt to locate the petitioner in the area of Colorado and East Ferry Streets, Humphrey returned to his office. Id. at 112. At 12:45 P.M., petitioner telephoned Humphrey from 76 Hedley Street and said that he had not reported because he had been in the hospital and again explained that he was afraid to come in. Id. at 113. Humphrey offered to pick petitioner up in a state vehicle and to bring petitioner in to make his report. Petitioner claimed that Humphrey directed him to stay where he was and told him he would be there to pick him up. When Humphrey and his partner pulled up to 76 Hedley Street and “honked on the horn,” petitioner came out and got in the car. 10/27/99 Tr. at 113. Humphrey stated that petitioner appeared to be happy to see the parole officers and “relieved” to be in the car with them. There was no hesitation on petitioner's part. Id. at 122. Petitioner acknowledged, in fact, that he voluntarily went back to the parole office with the officers. 10/29/99 Tr. at 39.

On the way there, petitioner told Humphrey that he was “very afraid to be in Buffalo”. 10/27/99 Tr. at 114. According to petitioner, Humphrey told him that he would have to speak with Conforti who was “pissed off” because petitioner did not show up on time for his parole interview. 10/29/99 Tr. at 40. Petitioner...