DeLuca v. Lord, 90 Civ. 4026 (RJW).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation858 F. Supp. 1330
Docket NumberNo. 90 Civ. 4026 (RJW).,90 Civ. 4026 (RJW).
PartiesSheila Ryan DeLUCA, Petitioner, v. Elaine A. LORD, Superintendent of Bedford Hills Correctional Facility and Robert Abrams, Attorney General of the State of New York, Respondents.
Decision Date04 August 1994

858 F. Supp. 1330

Sheila Ryan DeLUCA, Petitioner,
Elaine A. LORD, Superintendent of Bedford Hills Correctional Facility and Robert Abrams, Attorney General of the State of New York, Respondents.

No. 90 Civ. 4026 (RJW).

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

August 4, 1994.

858 F. Supp. 1331
858 F. Supp. 1332
858 F. Supp. 1333
Rogers & Wells, New York City (Mark F. Pomerantz, Warren L. Feldman, of counsel), Jacobs, Grudberg, Belt & Dow, P.C., New Haven, CT (David T. Grudberg, of counsel), for petitioner

Bronx County Dist. Attys. Office, Bronx County, Bronx, NY, Robert T. Johnson, Dist. Atty. (Peter D. Coddington, Jonathan Svetkey, of counsel), for respondents.

ROBERT J. WARD, District Judge.

In this petition for a writ of habeas corpus, filed on June 13, 1990, petitioner Sheila Ryan DeLuca ("DeLuca") asserts that she was (1) denied effective assistance of counsel and (2) deprived of her Sixth and Fourteenth Amendment rights to present a defense by the trial court's exclusion of expert testimony. This Court initially referred the matter to Magistrate Judge Kathleen A. Roberts, who conducted an evidentiary hearing and filed a Report and Recommendation dated December 21, 1993 (the "Report"). Magistrate Judge Roberts' comprehensive and detailed Report recommends that petitioner's application for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1), petitioner filed timely objections to the Report. After conducting a de novo review, this Court grants the writ on the grounds that petitioner was denied the effective assistance of trial counsel.


I. The Uncontested Facts

On the evening of September 21, 1982, Sheila Ryan DeLuca, a recently retired New York City police officer, met friends and family at Pauline's Bar and Grill in the Bronx to celebrate her forty-second birthday and her retirement from the police force, as well as the Kingsbridge Women's Softball championship which her team had won that afternoon.1 Because DeLuca's husband, Peter DeLuca, was not feeling well, she drove him home early. However, Mr. DeLuca insisted that his wife return to the party since she was the "guest of honor."

While DeLuca spent the night celebrating at Pauline's, Robert Bissett ("Bissett") began the evening watching a televised New York Yankee game and drinking a few beers with his friends Eugene Murphy ("Murphy") and Robert Barrett ("Barrett"). After the game, the three friends climbed into Bissett's black Ford van and drove to a bar called "Scotty's," where they drank more beer and played pool. After Scotty's closed, the three friends drove to an "after-hours club" located on East 231st Street, near Albany Crescent, arriving between 4:30 and 5:00 on the morning of September 22, 1982.

Shortly thereafter, DeLuca entered the same after-hours club with her friend, Karyn Travelina, a schoolteacher, who had been celebrating with her at Pauline's. Although the three men did not know DeLuca or Travelina, Bissett approached the two and struck up a conversation.

By 6:30 or 7:00 a.m., DeLuca and her friend, along with the three young men left the club. At some point, DeLuca got into her light blue Cadillac with the three men and spent the early morning hours driving around the Bronx. Bissett sat in the passenger seat while Murphy and Barrett rode in the back. Continuing to drink beer and wine, the four drove around for a number of hours, eventually winding up at the Bronx Park Motel where they rented a room.

At first, only Murphy and Barrett entered the motel, where they drank more beer and watched a pornographic film. Eventually, Bissett and DeLuca entered. Bissett then asked his two friends to leave so that he could be alone in the room with DeLuca.

858 F. Supp. 1334
Locked outside, his friends quickly became angry and began banging on the door. In fact, Murphy became so enraged that he kicked in a window located three feet above the ground. Hearing the disturbance, the motel manager told his clerk to call the room and order the group to leave

After that telephone call, Murphy and Barrett left the hotel on foot. Meanwhile, DeLuca and Bissett drove in her car back to Bissett's van, which was parked near the after-hours club. The two entered his van, drove for some time, and finally parked in a deserted area alongside the service road adjacent to the Major Deegan Expressway near Fordham and Landing Roads. At approximately 2:00 in the afternoon, DeLuca left the van and headed towards Fordham Road, where she called her husband.

After being out all night, DeLuca arrived home in her own car sometime around 2:30 on the afternoon of September 22nd. Her husband, who had gone out looking for his wife, drove up almost immediately afterwards. Shortly before 7:00 that evening, Mr. DeLuca, himself a retired New York City Police Captain, telephoned the 46th Precinct Detective Unit and told the police that they would find a body in a van located behind the Dale Oldsmobile Auto Dealership. The police investigated the scene and found Bissett's dead body. He had been shot in the head four times.

DeLuca's husband again called the police sometime around 8:00 p.m. and stated that the man in the van had raped his wife at approximately 1:00 that afternoon. Mr. DeLuca told the desk sergeant that he wanted to speak to the "Rape Squad". Shortly thereafter, Sergeant Rudolph Eberhardt ("Eberhardt") of the Bronx Sex Crimes Squad called the DeLucas. After answering the telephone, Mr. DeLuca immediately handed the receiver to his wife who described her abduction and rape to the sergeant.

According to Eberhardt, DeLuca told him that, as she left the after-hours club, she was forced into a van by three men and taken to a motel near the Bronx Zoo. She stated that one of the men had subsequently forced her back into the van and taken her to the vicinity of Fordham Road and the Major Deegan Expressway where he had raped her. DeLuca also told Eberhardt that she finally managed to escape by hitting the man on the head with a bottle, which caused him to roll off of her. DeLuca stated that when she left the van, Bissett was lying in the back, bleeding. She then walked to a gas station, where she called her husband to come get her. When he failed to appear, DeLuca walked back to her car, and drove home. DeLuca then told Eberhardt that she did not wish to say anything more without her lawyer present.

The first police officers arrived at petitioner's home sometime around 8:45 p.m. While Peter DeLuca introduced himself and his wife as former officers and stated that "the bum in the truck down there raped my wife this afternoon," petitioner remained quiet. A few minutes later John Patten ("Patten"), the DeLucas' newly retained attorney, telephoned and told the officers that he did not want his clients speaking to the police prior to his arrival.2 No further efforts were made to interview the DeLucas after Patten's call.

Arriving at the DeLucas' home, Patten announced that he would not allow any questioning of petitioner or her husband, but asked that the rape investigation proceed. John GaNun ("GaNun"), Patten's law partner, arrived soon after and the DeLucas spent some time consulting privately with their attorneys. Following Patten's advice, DeLuca then gave the police the jeans, sneakers, sweater, and torn underpants she

858 F. Supp. 1335
had been wearing the previous evening. Eberhardt noticed that the pant legs of the jeans were still damp up to a point approximately nine inches above their bottoms and that the sneakers were also damp

The DeLucas and their counsel accompanied the police back to the 52nd Precinct where petitioner filled out a formal rape complaint, in which she claimed that three men had abducted her using a knife. After filling out her complaint, DeLuca was taken to North Central Bronx Hospital for a medical examination and returned home with a Detective Fusilli sometime after midnight.

Pursuant to an earlier agreement entered into with Patten's consent, DeLuca went to her bedroom to retrieve her guns and turn them over to the police. Peter DeLuca, who was waiting in the living room with Fusilli, reached over a nearby hutch and picked up a holstered, off-duty revolver which he gave to Fusilli. Mr. DeLuca told the detective, "This is the gun you're looking for." Detective Fusilli unloaded the .38 calibre revolver and found that it contained five spent shells. Petitioner then came out of the bedroom and produced two additional regular service revolvers which were loaded with eleven live bullets.

Ballistics tests positively established that petitioner's off-duty revolver, which contained the five spent shells, had been recently fired and was the same gun that was used to kill Bissett. Investigators searching petitioner's blue Cadillac discovered two beer bottles and a beer can. A latent fingerprint lifted from a Heineken bottle was identified as belonging to Robert Barrett. On Friday, September 24, 1982, DeLuca was arrested for the murder of Robert Bissett.

II. Defense Counsel's Pre-Trial Investigation

DeLuca first told Patten her version of the events of September 21 and 22, 1982 on the night that he was retained as her counsel.3 After asking the police to cease their questioning of DeLuca and her husband, Patten and GaNun had a private conversation with the couple. During that meeting, DeLuca explained the facts and circumstances surrounding the shooting of Bissett, an account she repeatedly discussed with her counsel prior to trial.4

A. The Petitioner's Version of Events

DeLuca testified before Magistrate Judge Roberts that at approximately 4 a.m., she and Travelina arrived at the after-hours club in her car. After entering the bar, they were approached by Bissett and his friends, who offered to buy them drinks. DeLuca and Travelina were polite but answered that they already had drinks. Bissett, Murphy, and Barrett responded by calling...

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