Acosta v. Artuz

• Decision Date: 04 August 2009
• Docket Number: Docket No. 05-4196-pr.
• Citation: 575 F.3d 177
• Parties: Victor ACOSTA, Petitioner-Appellant, v. C. ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

575 F.3d 177

Victor ACOSTA, Petitioner-Appellant, v. C. ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.

Docket No. 05-4196-pr.

United States Court of Appeals, Second Circuit.

Argued: April 7, 2008.

Decided: August 4, 2009.

Monica R. Jacobson, New York, NY, for Petitioner-Appellant.

Morgan J. Dennehy (Leonard Joblove, Victor Barall, on the brief), on behalf of Charles J. Hynes, District Attorney, Kings County, Brooklyn, NY, for Respondent-Appellee.

Before: WALKER, CABRANES, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Petitioner Victor Acosta was convicted after a jury trial on one count of murder in the second degree on a theory of felony murder. See N.Y. Penal Law § 125.25[3]. Presently incarcerated serving an indeterminate prison term of twenty-four years to life, Acosta appeals from the July 20, 2005 judgment of the United States District Court for the Eastern District of New York (David G. Trager, Judge), which denied his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Acosta v. Artuz, 375 F.Supp.2d 173 (E.D.N.Y.2005). Acosta claims, inter alia, that his conviction is infected by constitutional error because the jury was allowed to hear a confession made by Acosta in purported violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). We granted a certificate of appealability on two issues related to this claim: (1) whether Acosta adequately exhausted state remedies before seeking federal habeas relief by "fairly presenting" his Miranda/Innis claim to the state courts, and (2) whether Acosta demonstrated Miranda/Innis error warranting habeas relief. We answer both questions in the negative and, accordingly, affirm the district court judgment.

I. Background

A. The Murder of Dennis Cetter

Yvonne Martinez, a Brooklyn prostitute, testified that sometime between 7:00 p.m and 8:00 p.m. on November 1, 1991, Victor Acosta, whom she knew as "Green Eyes," told her that he "was going to catch a herb," street slang that Martinez understood to mean that Acosta was going to rob someone.¹ Soon thereafter, Acosta entered an abandoned factory building at North 10th Street and Kent Avenue and, armed with a knife, demanded money from Debra Perry, another prostitute who lived in the building, and Dennis Cetter, the man with whom Perry had spent part of the day.

Perry testified that she knew Acosta from the neighborhood, having seen him almost daily for the last month, and having used drugs with him. As Acosta searched through the couple's clothing looking for money, Perry reached for a baseball bat, but Cetter took it from her and used the bat to hit Acosta. A fight ensued during which Acosta stabbed Cetter thirteen times, inflicting wounds that would ultimately cause Cetter's death.

Darryl Higgs, a homeless drug user who lived with Perry at the factory and who was nearby at the time of the incident, testified to hearing Perry screaming and, moments later, seeing Acosta — whom he had known for several years as "Green Eyes" — flee the building. Soon after, Cetter also emerged from the building, covered in blood, and collapsed into Higgs's arms. Perry was hysterical and screaming about "Green Eyes."

Yvonne Martinez testified that approximately fifteen minutes after Acosta had first told her of his robbery plans, defendant returned to where they had spoken and breathlessly stated that he had "just finished stabbing a guy up" eight to ten times, likely killing him. Acosta gave Martinez a blood-stained knife and told her to clean it. Not wanting anything to do with the weapon, Martinez gave it to a friend, Patrick Wilson, who would give it to investigating police officers the following day, November 2.

On the morning of November 3, police arrested Acosta for Cetter's murder. At a station house lineup conducted the same day, Higgs, Perry, and Martinez each positively identified Acosta as the person they had implicated in the murder. Later that day, Acosta himself admitted to a police detective that he had stabbed Cetter but explained that his actions were taken in self-defense.

B. State Court Proceedings

1. The Suppression Hearing

Acosta was charged by a Kings County grand jury with two counts of Murder in the Second Degree, see N.Y. Penal Law § 125.25[1], [3]; one count of Robbery in the First Degree, see id. § 160.15[3]; and one count of Criminal Possession of a Weapon in the Fourth Degree, see id. § 265.01[2]. Prior to trial, Acosta moved, inter alia, to suppress his post-arrest admission, alleging that it was the fruit of an unlawful arrest and had been obtained in violation of his right to counsel. Acosta did not present any evidence or submit an affidavit in support of his motion; nor did he testify at the hearing held to address the motion.

At that hearing, Police Detectives Nancy Gaffney and Ramon Aguilar testified to how they came to identify Acosta as Cetter's likely killer and to place Acosta under arrest. Detective Aguilar further stated that, after arrest, Acosta was advised of his Miranda rights when he was brought to the police precinct at approximately 5:30 p.m. Because Acosta invoked his right to counsel, police questioning was limited to securing pedigree information. See generally Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (recognizing "routine booking question exception which exempts from Miranda's coverage questions to secure the biographical data necessary to complete booking or pretrial services" (internal quotation marks omitted)). Detective Aguilar testified that between 6:00 p.m. and 7:00 p.m. the police placed Acosta in a lineup that was viewed separately by Perry, Higgs, and Martinez, each of whom positively identified Acosta.

Approximately two hours later, when the identifying witnesses were leaving the station house, Detective Aguilar took Acosta to a second-floor bathroom to ensure against any contact between the defendant and the witnesses. At the hearing, Detective Aguilar testified that he did not recall telling Acosta that he had been identified in the lineup. At some point while Acosta was in the bathroom, he asked Detective Aguilar if he could speak with a prosecutor. After consulting with an assistant district attorney, Detective Aguilar told Acosta that the prosecutor could not speak to him in the absence of defense counsel. Without any prompting, Acosta then stated that he had entered the abandoned factory building on November 1 intending to commit robbery and that he had stabbed Cetter, but explained that he had acted in self-defense after Cetter had attacked him with a baseball bat. Acosta further told Aguilar that he had been smoking crack cocaine on November 1 and that he thought Cetter and Perry had been smoking crack as well.

Justice James G. Starkey found the prosecution witnesses credible and denied Acosta's motion to suppress his confession. The judge specifically found that the police had taken Acosta to the bathroom to avoid contact with the identifying witnesses and that Acosta's admission was made "without any interrogation or invitation to speak on the part of Detective Aguilar." Justice Starkey further found that Acosta had "meant [the statement] to be exculpatory," as evidenced by Acosta's explanation that his actions were taken solely in self-defense.

2. Trial and Conviction

Acosta was tried in April 1993 before Justice Jerome M. Kay and a jury. Various civilian witnesses, including Higgs, Perry, and Martinez, testified to their knowledge of events relating to Cetter's murder. Government witnesses testified to the cause of Cetter's death, the recovery of the knife that killed him, the lineup identification, and other aspects of the investigation. Of particular relevance to this appeal, Detective Aguilar testified — for the first time — on cross-examination that at some unspecified time prior to the bathroom confession, he had informed Acosta that he had been identified in the lineup:

Q: When was the lineup completed?

A: Completed about 6:26.

Q: After the lineup was completed, did you then have a conversation with Mr. Acosta about what had taken place?

A: Yes, that is correct.

[. . .] Q: So, how long after the lineup was this statement [i.e., Acosta's confession]?

A: What, about two hours after the lineup.

Q: So, during those two hours, you had no conversation whatsoever with him?

A: No. Other than some pedigree questions, like I mentioned, concerning date of birth, height, and address, if any. He was hungry and wanted something to eat.

Q: Detective, didn't you tell Mr. Acosta that he had been picked out in that lineup?

A: Yes.

Q: That you now had witnesses that were identifying him as the perpetrator of this crime?

A: I indicated to the defendant that he was picked out in the lineup.

Q: At that point, did you not ask him again whether he now wished to explain his actions and what he did that night?

A: Oh yes, he did want to talk. He wanted to talk with the District Attorney.

Q: He did want to talk?

A: He did.

Q: So your testimony is that now he changed his mind after you told him that he had been picked out of the lineup and wanted to talk to the District Attorney?

A: Well, he changed his mind in the first case. He said he wanted a lawyer and wanted to [make] a phone call. After the lineup was conducted and he was moved from the cell room and into the bathroom, he indicated that he wanted to talk to the Brooklyn D.A.

Q: And how did he indicate that to you, just out of the clear blue sky said to you, "Detective, I want to now talk to the D.A.?"

A: Yes, I believe so. Yes.

Trial Tr. 265-67. Defense counsel did not argue to the trial court that Aguilar's testimony about the disclosure to Acosta of the lineup identification warranted reconsideration of the suppression motion. He did not move to strike Acosta's confession,...