Garofolo v. Coomb, 57

• Citation: 804 F.2d 201
• Decision Date: 28 October 1986
• Docket Number: No. 57,D,57
• Parties: Steven GAROFOLO, Petitioner-Appellant, v. Philip COOMB, Superintendent, Eastern New York Correctional Facility, Respondent-Appellee. ocket 86-2197.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 201

804 F.2d 201

Steven GAROFOLO, Petitioner-Appellant, v. Philip COOMB, Superintendent, Eastern New York Correctional Facility, Respondent-Appellee.

No. 57, Docket 86-2197.

United States Court of Appeals Second Circuit.

Argued Sept. 16, 1986.

Decided Oct. 28, 1986.

Jeffrey A. Rabin, Brooklyn, N.Y., for petitioner-appellant.

Steven A. Hovani, Asst. Dist. Atty., Riverhead, N.Y. (Patrick Henry, Dist. Atty. of Suffolk County, Riverhead, N.Y., of counsel), for respondent-appellee.

Before LUMBARD, OAKES and MINER, Circuit Judges.

OAKES, Circuit Judge:

A state defendant seeking a grant of federal habeas corpus has at least four hurdles to get over to assert a viable claim. The first is that he must exhaust his available state remedies, Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971), with the concomitant rule that he must exhaust his remedies as to all claims presented to the federal court, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The second is that his federal claims must not have been defeated in the state courts due to his own procedural default unless he can show both "cause" for the default and resultant "prejudice." Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The third hurdle is to establish that he does have a federal constitutional claim and is not merely asserting something that falls short of a constitutional right. Moran v. Burbine, --- U.S. ----, 106 S.Ct. 1135 89 L.Ed.2d 410 (1986). Finally, even establishing a constitutional right will avail him nothing if the constitutional error is one that can be considered harmless. Rose v. Clark, --- U.S. ----, 106 S.Ct. 3101 92 L.Ed.2d 460 (1986).

Appellant Steven Garofolo originally asserted five federal constitutional violations in support of his petition under 28 U.S.C. Sec. 2254 (1982). Two of these he abandoned in accordance with the rule of Rose v. Lundy, as glossed by Rock v. Coombe, 694 F.2d 908 (2d Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1773, 76 L.Ed.2d 345 (1983) (petitioner may abandon unexhausted claims in order to obtain a federal court hearing on exhausted claims), and hence they need not concern us here. Although the United States District Court for the Eastern District of New York, Charles P Garofolo was convicted on two counts of second degree murder--one, intentional murder, and the other, felony murder committed in the course of a rape. His victim was Catherine Wilkinson, whom he killed by strangling and beating with a nightstick. His conviction, though affirmed by the Appellate Division, 62 A.D.2d 1181, 403 N.Y.S.2d 608 (2d Dep't 1978), was reversed by the Court of Appeals, People v. Garofolo, 46 N.Y.2d 592, 415 N.Y.S.2d 810, 389 N.E.2d 123 (1979), on the ground that a written statement he gave to the police had been obtained in violation of his right to counsel. On retrial he was again convicted on both counts. This conviction was affirmed without opinion by the Appellate Division and Garofolo's request for leave to appeal to the Court of Appeals was denied. Appellant commenced a federal habeas proceeding in early 1983 but withdrew it in favor of an application to the Appellate Division for reargument of the appeal on state constitutional grounds enunciated in People v. Bartolomeo, 53 N.Y.2d 225, 440 N.Y.S.2d 894, 423 N.E.2d 371 (1981) (holding that under the state constitution it is a violation of a defendant's rights to interrogate him with knowledge that he is represented by counsel, albeit on a separate unrelated charge). This application was unsuccessful, as was a subsequent application for reconsideration, and the instant petition was reinstated.

Sifton, Judge, held that the other three claims had cleared the exhaustion hurdle, the court also found each claim without merit by reason of failure to clear one of the other hurdles in petitioner's path. Garofolo's appeal is now before us, the district court having issued a certificate of probable cause under 28 U.S.C. Sec. 2253 (1982). We affirm the denial of Garofolo's petition for reasons that will be set forth below.

FACTS

Catherine Wilkinson's partially clad body was found in the woods of Suffolk County, New York, near Oak Beach Inn North several hours after her pocketbook had been found in a dumpster located at a gas station nearby. Shortly after Catherine's father reported her missing to the police he received a telephone call from a person identifying himself as Steven Garofolo. Mr. Wilkinson then turned the phone over to his wife, who received the same answer when she asked who was calling. At trial Mrs. Wilkinson testified that the caller indicated that he and Catherine had been dancing the night before, that she had asked him to call her for a date, and that he had seen her at several places, once with three "guys" by a white Rambler. Mrs. Wilkinson ascertained that the caller was at work and requested his phone number, which he gave her. She later gave the police Garofolo's name and number when they came to the Wilkinson home. Mrs. Wilkinson also testified that Catherine had shown her the pair of earrings Catherine was wearing before she had gone out the previous night. One of these earrings was found by the police two days later at a place indicated by Garofolo.

On October 26, 1975, the day after the murder, Garofolo told his employer, William Luciano, at Mario's Pizzeria in Massapequa, New York, that the night before he had had a fight with a bouncer at "Freckles" and that he thought he might have killed the bouncer. He also told Luciano that he had met a girl named Cathy whom he was going to drive home but that she got into an auto with three "guys" and he would not be surprised if she had likewise been killed. He also expressed concern as to whether fingerprints could be found on a human body. Later that day a Nassau County police officer talked with Garofolo at Mario's. Garofolo mentioned the probability that the Suffolk County police might contact him because the girl's mother had called him to find out whether he knew where she might be. According to Garofolo, the girl's mother had also told him that the girl had not returned home, although her purse had been found. Garofolo then told the officer that it was his opinion that she might have been murdered and it would not surprise him if she had been. He suggested that she was the type who That evening, two Suffolk homicide detectives arrived at Mario's and asked Garofolo if he was the Steven Garofolo who had called the Wilkinson home. When he said that he was, the detectives asked him to accompany them to the Suffolk police's homicide headquarters to view photographs in an attempt to identify the three "guys" he said he had seen Catherine Wilkinson with at Freckles. As they were leaving, another Nassau County police officer came in and ordered dinner. Garofolo asked him to watch his automobile parked out back. The officer who had talked to Garofolo earlier then returned to Mario's. The two Nassau County officers talked about the earlier conversation and together with William Luciano went into the bathroom of Mario's. There they saw the jeans and a pair of socks hanging on the bathroom window grate.

would "lead a guy on" sexually but then stop and go no further and that she had a reputation for disappearing. Garofolo also asked the officer whether fingerprints could be taken from a person's neck and was observed by the officer to be hanging a pair of wet blue denim dungarees in the bathroom.

Meanwhile, at Suffolk police headquarters the detectives told Garofolo that Catherine Wilkinson's body had been found and that because of Garofolo's phone call they believed he was the last person to see her. He told them that he had seen Catherine buying drinks for three "guys" at Freckles and that he had tried to call her for a date. When the detectives noticed what looked to be new scratches on his face, he explained that he had gotten them in a fight a week before. The detectives then held a brief conference outside of Garofolo's presence, one detective voicing his doubts about Garofolo's story. While they were talking, another detective not involved in the case mentioned to them that Garofolo had recently been arrested for rape, burglary, and sodomy.

The detectives returned to Garofolo, who was read his Miranda rights, waived them, and initialed the Miranda rights card. When confronted with their suspicions, Garofolo proceeded to tell the detectives the following story: Garofolo met Catherine Wilkinson at about 1:55 a.m. at Freckles and then went with her to the Brown Jug bar. After they left the Brown Jug in his car she took off her blouse and jeans and began to scream rape. He panicked, ran a red light, and, after noticing a police car nearby, drove up to Oak Beach Inn North. She was screaming so he smacked her, began to choke her, grabbed a nightstick he kept in his car, chased her and hit her with it six or seven times, then got into his car and drove away, throwing out a T-shirt and returning to Mario's. There he washed the car, his clothes, and the nightstick and threw the nightstick in the garbage at a nearby stationery store. He drove back to the Oak Beach Inn to retrieve his T-shirt and to pull the body into the woods. He then took Catherine's pocketbook and threw it into a dumpster and went home. He slept until around noon the next day and then returned to the scene to pull the body further into the woods where he covered it with leaves and debris. On his way to Mario's on the Sunken Meadow Parkway, he threw out the pair of shoes Catherine had worn the previous evening. When he reached Mario's he searched his car and found an earring, which he hid in the garbage behind the pizza shop along with the T-shirt he had been wearing. Finally, he washed some articles of his clothing in the bathroom at the pizzeria.

All of the items were discovered where he indicated they could be found, except for the...