Bethea v. Artuz, 201

• Decision Date: 29 September 1997
• Docket Number: No. 201,D,201
• Citation: 126 F.3d 124
• Parties: Willie BETHEA, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee. ocket 96-2949.
• Court: U.S. Court of Appeals — Second Circuit

Page 124

126 F.3d 124

Willie BETHEA, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.

No. 201, Docket 96-2949.

United States Court of Appeals Second Circuit.

Argued Sept. 5, 1997.

Decided Sept. 29, 1997.

Susan D. Fitzpatrick, Ossining, NY, for Petitioner-Appellant.

Alan Lewis, Assistant District Attorney, Brooklyn, NY (Charles J. Hynes, District Attorney Kings County, Brooklyn, NY, Roseann B. MacKechnie, Assistant District Attorney, of counsel), for Respondent-Appellee.

Before: CARDAMONE, LEVAL, Circuit Judges,and KOELTL, District Judge. ^*

PER CURIAM:

Petitioner Willie Bethea, a New York State prisoner incarcerated at the Green Haven Correctional Facility, appeals from the denial by the United States District Court for the Eastern District of New York (Sifton, Chief Judge ) of Bethea's second petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner contends the writ should be granted because he was denied effective assistance of appellate counsel on the direct appeal of his conviction.

In April 1979, a fire broke out in an apartment in Brooklyn occupied by petitioner and his girlfriend, Delores Blake, resulting in the death of two people. After two days of searching, the police located Blake and Bethea. Blake, the initial target of the police investigation, agreed to go to the police station for questioning. By petitioner's own account, he voluntarily accompanied Blake and the officers to the station. After arriving at the station, Blake and Bethea were questioned in separate rooms. During the course of this questioning, Bethea confessed to starting the fire, and a detective prepared a statement reflecting the substance of his comments. Bethea signed the statement and initialled each page. Later that same evening, an Assistant District Attorney for Kings County came to the station and took a stenographically-recorded statement from Bethea, in which Bethea again took responsibility for setting the fire. Bethea was subsequently indicted on two counts of felony murder.

Prior to trial in the New York Supreme Court, Kings County, Bethea moved to suppress the statements of confession. The court held a pre-trial hearing on this motion. At this hearing, Bethea acknowledged that he accompanied the officers to the station voluntarily, and Bethea's counsel stated that he was not contesting whether the police had probable cause to detain and interrogate Bethea. After listening to several witnesses, including Bethea, the judge denied the motion to suppress the statements of confession, concluding expressly that Bethea had been read and had waived his Miranda rights before making the statements, and that the statements were not the product of police coercion, but rather were "freely, voluntarily, understandingly and intelligently made ... and were not the product of any improper police activity." Bethea's statements were introduced into evidence at trial. A jury convicted Bethea of two counts of second degree murder, for which he was sentenced to two concurrent prison terms of twenty-five years to life.

On direct appeal to the Supreme Court, Appellate Division, Bethea's counsel raised four basic arguments: (i) that the felony murder statute under which he was convicted was unconstitutional; (ii) that Bethea had received ineffective assistance of trial counsel; (iii) that he was deprived of due process through various errors by the trial judge; and (iv) that his sentence was excessive. The Appellate Division affirmed the conviction without opinion and the New York Court of Appeals denied Bethea leave to appeal.

Bethea subsequently filed numerous collateral attacks on his conviction and sentence, including two habeas petitions, filed in the United States District Court for the Eastern District of New York. In support of this petition, he argued, inter alia, that he was denied effective assistance of appellate counsel due to his counsel's failure to argue on direct appeal that the trial court should have suppressed Bethea's statements of confession because: (i) they were the result of an arrest made without probable cause; (ii) he had not made a knowing or voluntary waiver of his Miranda rights; and (iii) they were obtained through coercion.

In a Memorandum and Order dated October 22, 1996, the district court denied petitioner's application. The court noted that petitioner had filed a prior application for habeas relief, and, applying the standard set forth in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), concluded that Bethea had "abused the writ."

On this appeal, Bethea presses his claim that his counsel on direct appeal from his criminal conviction was ineffective in not raising the three arguments for suppression of his confessions. He additionally urges us to find that he has not "abused the writ." We need not decide whether petitioner has abused the writ, because we conclude that petitioner's claim of ineffective assistance of appellate counsel is without merit and that denial of the writ is appropriate on that basis. See Bentley v. Scully, 41 F.3d 818, 822 (2d Cir.1994), ...