Karlsen v. Kilpatrick
| Decision Date | 14 May 2019 |
| Docket Number | 17-CV-6386L |
| Parties | Karl H. KARLSEN, Petitioner, v. KILPATRICK, Respondent. |
| Court | U.S. District Court — Western District of New York |
Karl H. Karlsen, San Andreas, CA, pro se.
Lisa Ellen Fleischmann, New York State Department of Law, New York, NY, Laura Stockmyer, for Respondent.
DECISION AND ORDER
Petitioner Karl H. Karlsen has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence in New York State Supreme Court, Seneca County of murder in the second degree (also known as "depraved indifference" murder) ( N.Y. Penal Law § 125.25(2) ), arising out of the death of his son Levi Karlsen ("Levi") on November 20, 2008. Karlsen is currently serving a sentence of fifteen years to life imprisonment.
For the following reasons, the petition for a writ of habeas corpus is denied, and the Court denies issuance of a certificate of appealability.
On November 3, 2008, petitioner obtained a $ 700,000 life insurance policy on his son Levi, naming himself as sole beneficiary. Levi was petitioner's son by his first wife, Christine, who had died in a fire in California in 1991. Christine's death had been ruled non-accidental, but prior to Levi's murder in 2008, no one had been charged in connection with her death.
Seventeen days after petitioner obtained that policy on Levi's life, he and Levi (who was married and had two children) went before a notary public, who witnessed Levi sign a handwritten will that purported to leave Levi's entire estate to petitioner in the event of Levi's death. Within hours after Levi signed that will, Levi was killed.
Just prior to Levi's death, he was in petitioner's garage, working on a truck. Levi was underneath the truck, which had been jacked up with a single jack under the front bumper. The front wheels of the truck had been removed. By his own admission at his later plea proceeding in state court, petitioner, knowing that the truck was unstable, jumped into the cab, which caused the truck to fall on Levi's chest.
Levi did not die immediately. Despite knowing that Levi was still alive, but pinned to the ground, petitioner made no attempt to help him, but left the scene. He then went out for several hours with his then-wife, Cindy Karlsen ("Cindy"), who was not present during these events, and who was unaware that any of this had occurred.
When petitioner and Cindy returned home, Karlsen "discovered" Levi's body in the garage, under the truck. Cindy called 911, and Levi was taken to a hospital, where he was pronounced dead.
Initially, Levi's death was deemed accidental, based in part on Karlsen's statements to medical personnel, which indicated that when Karlsen left, Levi was alive and still working on the truck. Petitioner subsequently filed a claim under Levi's life insurance policy, and collected $ 707,000.
By late summer 2011, Cindy began to suspect that petitioner had killed Levi. After learning that petitioner had reinvested some of the money he received from Levi's life insurance policy into a $ 1.2 million policy on her life, naming him as sole beneficiary, Cindy separated from petitioner.
Cindy contacted the police, and told them of her suspicions. She also began surreptitiously recording her conversations with petitioner at their occasional meetings. At one such meeting on November 14, 2012, which took place at a restaurant, petitioner admitted to her that he had killed Levi.
Cindy met petitioner at another restaurant two days later. This time, she was wearing a wire that had been placed on her by police investigators, with her consent. She also knew that plainclothes investigators were seated nearby. Petitioner again made several incriminating statements, admitting, in sum and substance, that he had deliberately caused the truck to fall on Levi.
At the investigators' direction, Cindy arranged to meet petitioner again at a restaurant a few days later. This time, however, when Karlsen arrived at the restaurant, the investigators approached him, identified themselves, and asked Karlsen if he would be willing to speak with them. He agreed to accompany them to the Seneca County Sheriff's Department building.
At the sheriff's department, petitioner was taken to an interview room, where he was questioned by the investigators. He was not handcuffed or told that he was under arrest, or that he could not leave. Near the end of the interview, which lasted about nine and a half hours, petitioner agreed to handwrite and sign a statement, in which he admitted that the truck fell on Levi when petitioner got into the front seat. He did not, in that statement, say that he intended to kill Levi, but stated that when the truck fell off the jack, he "panicked" and left the scene. State Record ("SR") at 416.
On November 29, 2012, a Seneca County grand jury returned an indictment charging petitioner with two counts of murder in the second degree under New York Penal Law §§ 125.25(1) (intentional murder) and 125.25(2) (depraved-indifference murder), and one count of second-degree insurance fraud.
Prior to trial, petitioner moved to suppress evidence of his statements to Cindy and to the police investigators. Following a multi-day Huntley hearing, the state court issued a decision and order dated October 1, 2013, denying petitioner's motion.2 SR 463-75. After making detailed findings of fact, the court concluded that: (1) petitioner's Miranda rights had been properly given, and knowingly and voluntarily waived by him; (2) viewed under the totality of the circumstances, the investigators' questioning of Karlsen at the sheriff's department did not deny him his due process rights or create a substantial risk that he might falsely incriminate himself; (3) petitioner's statements to Cindy were not barred by New York's spousal privilege; and (4) neither Cindy's professed willingness to consider reconciling with petitioner if he told her the truth, nor her intimation that their conversation would be private or confidential rendered plaintiff's admissions to her involuntary or inadmissible. Id.
The case then proceeded to trial. After jury selection but before the start of proof, however, petitioner agreed to plead guilty to one count of depraved-indifference murder, in full satisfaction of the indictment, and in exchange for an indeterminate prison term of fifteen years to life and for the People's agreement not to pursue a civil forfeiture action.
During the plea proceeding, there was a discussion about the then-ongoing investigation in California into the death of petitioner's first wife, Christine. It appears that authorities in California, having learned that Levi's death had been ruled a homicide, had reopened their investigation into Christine's death in 1991.
At the plea proceeding, petitioner's attorney stated that "we are aware of the fact that California is not – is recognizing this plea and is not likely to proceed." (Dkt. #10-6 at 86.) But when asked by the Court, "To be clear, though, there has been no promise to what California is going to do; is that correct?," petitioner's attorney responded, "Yes, they indicated from direct conversations with me, however, that they are not likely to proceed because of the nature of this sentence." Id. In other words, the authorities in California had indicated that they were unlikely to proceed, in light of petitioner's guilty plea and sentence in New York, but they did not make any promises in that regard, nor did anyone involved with the New York prosecution. At the plea proceeding the district attorney also stated on the record that he "ha[d]n't had any conversations with California on that." Id. at 87. Petitioner never interjected during this discussion.
During the following plea colloquy, petitioner admitted to the facts underlying the depraved-murder charge. Specifically, he acknowledged that when the relevant events occurred: he knew that the truck was unstable, given the way it had been jacked up; he knew that his jumping into the cab created a substantial and unjustifiable risk that the truck would fall onto Levi; the truck did fall onto Levi's chest, pinning him to the ground; he knew that Levi was still alive; petitioner made no attempt to help him, or to summon help; and he left the scene for several hours, knowing that Levi was highly likely to die by the time petitioner returned home.
The trial court accepted the plea. On December 16, 2013, the court imposed the agreed-upon sentence of fifteen years to life imprisonment.
Perhaps contrary to petitioner's hopes, the authorities in California did charge him with Christine's murder in August 2014. See "Karl Karlsen charged with murdering first wife in 1991 California fire" (Aug. 29, 2014), available at www.syracuse.com. Because petitioner is alleged to have committed the murder "for financial gain," he could under California law be sentenced to death. The "financial gain" aspect stems from the fact that after Christine's death, petitioner collected about $ 200,000 in life insurance proceeds. He is awaiting trial on that charge, which is currently scheduled to begin in late August 2019. See Calaveras Enterprise , (Jan. 11, 2019), available at www.calaverasenterprise.com.3
On September 10, 2014, petitioner filed a pro se motion in New York state court to withdraw his guilty plea. He claimed that he had "lied" when he admitted to murdering Levi, that he was mentally impaired at the time of the plea, and that his then-counsel was ineffective in certain respects. SR 22-30. In a one-page decision and order issued October 9, 2014, the trial court denied the motion on the ground that it was untimely, because it had been brought pursuant to C.P.L. § 220.60(3), which requires such motions to be brought prior to the imposition of sentence, not after, as occurred here. SR 2.
Petitioner then moved pro se to vacate his conviction under C.P.L. § 440. SR...
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