McCarthy v. Bronson

• Decision Date: 19 April 1988
• Docket Number: Civ. No. H-86-508 (TEC).
• Citation: 683 F. Supp. 880
• Parties: John J. McCARTHY, Petitioner, v. George BRONSON, Respondent.
• Court: U.S. District Court — District of Connecticut

683 F. Supp. 880

John J. McCARTHY, Petitioner, v.George BRONSON, Respondent.

Civ. No. H-86-508 (TEC).

United States District Court, D. Connecticut.

April 19, 1988.

COPYRIGHT MATERIAL OMITTED

John J. McCarthy, pro se., for petitioner.

Frederick W. Fawcett, Asst. State's Atty., Donald A. Browne, State's Atty., Bridgeport, Conn., for respondent.

MEMORANDUM OF DECISION ON PETITION FOR WRIT OF HABEAS CORPUS

CLARIE, District Judge.

The petitioner is serving an effective prison term of not less than ten nor more than twenty years pursuant to his convictions in the Connecticut Superior Court of the crimes of larceny in the first degree and burglary in the third degree.He brings this petition for a writ of habeas corpus under 28 U.S.C. Section 2254.In his petition, filed pro se and in forma pauperis on May 1, 1986, the petitioner alleges that the trial court committed constitutional error when it denied his motion to suppress inculpatory statements made while he was in the temporary custody of the Wilton police.He claims that the statements are the fruits of an illegal arrest and were induced by unfulfilled promises of treatment for his drug abuse problem.In an improperly submitted pro se"amended petition,"he also claims that Hispanics were underrepresented on the jury venire in Fairfield County in violation of his rights to due process and equal protection.Presently pending are the petitioner's motion in opposition to judgment(docket entry 11) and his motion for re-appointment of counsel(docket entry 17).For the reasons set forth below, the petitioner's motions are DENIED, and the petition is DISMISSED.

I.

District of Connecticut LocalRule 16(a) authorizes the Clerk of the Court to enter an order of dismissal in civil actions in which no action has been taken by the parties for six months.On July 30, 1987, the Clerk entered a judgment of dismissal in this action pursuant to Rule 16.On October 2, 1987, the Court granted the petitioner's motion to rescind the order of dismissal.Accordingly, the petitioner's motion in opposition to judgment is DENIED as moot.

On September 10, 1986, the Court, at the petitioner's request, appointed the Federal Public Defender to represent him.Although the order of July 30, 1987 eventually was vacated, the petitioner filed a grievance against his appointed attorney, Assistant Federal Public DefenderSarah A. Chambers, on or about October 9, 1987.As a result, Attorney Chambers filed a motion to withdraw as petitioner's counsel.The Court granted the motion to withdraw on December 9, 1987.On March 17, 1988, the petitioner filed a motion in which he asks the Court to appoint a different attorney for him in this action.Upon review of the record, the Court finds that it is unnecessary to appoint a new attorney for the petitioner.

In a federal habeas corpus action, the granting of appointment of counsel lies within the discretion of the Court.See18 U.S.C. Sec. 3006A;28 U.S.C. Sec. 2254,Rule 8(c).The Court need only appoint counsel for qualified indigents when a hearing is required; appointment of counsel at an earlier stage is only necessary if it is in the interest of justice to do so.SeeHodge v. Police Officers,802 F.2d 58, 60(2d Cir.1986).The submissions of the respondent demonstrate that no hearing will be necessary in this action and that the petition is subject to summary dismissal.See28 U.S.C. Sec. 2254,Rule 4(authorizing summary dismissal where petition and attached exhibits show petition not entitled to relief).Accordingly, the petitioner's motion for reappointment of counsel is DENIED.

II.

A.Background

In accordance with 28 U.S.C. Sec. 2254(d), state court findings of fact are afforded a presumption of correctness in federal habeas proceedings.See, e.g., Ford v. Wainwright,477 U.S. 399, 106 S.Ct. 2595, 2602-03, 91 L.Ed.2d 335(1986);Sumner v. Mata,455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480(1982).The presumption applies to factual findings made either by a state trial or appellate court.SeeSumner v. Mata,449 U.S. 539, 544-47, 101 S.Ct. 764, 767-69, 66 L.Ed.2d 722(1981).This Court must defer to state court findings of fact unless it finds that one of the factors listed in 28 U.S.C.Sec. 2254(d) is applicable, or the petitioner presents "convincing evidence" which demonstrates that the findings are not supported by the record.SeeRushen v. Spain,464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267(1983)(per curiam);Sumner v. Mata,455 U.S. at 593, 102 S.Ct. at 1304.In the instant case, the Court has reviewed the submissions of the parties, which include relevant portions of the pretrial transcript.It is apparent that state court findings which are relevant to the issues raised in this petition are either undisputed or supported by the record.Throughout this opinion, the Court adopted the facts as found by the Connecticut Supreme Court.SeeKampshoff v. Smith,698 F.2d 581(2d Cir.1983)(adopting state court findings verbatim).

On June 20, 1980, the defendant was arrested by the Westport police on charges unrelated to those at issue here.Knowing that the defendant was a suspect in certain burglaries that had occurred in Wilton, the Westport police contacted the Wilton police and informed them that the defendant was in custody.The next day, two Wilton police officers spoke with the defendant at the jail in Westport, and then took him for a drive through Wilton, where the defendant incriminated himself in several burglaries, including the one involved in this appeal.More than two weeks later, a warrant was issued for the arrest of the defendant for the instant burglary and larceny.At trial the defendant stipulated that he had committed the theft in question, but denied having the requisite mental state for the crimes charged.He also contested the valuation of the property stolen.The jury found him guilty of the crimes charged.

State v. McCarthy,197 Conn. 247, 248, 496 A.2d 513(1985).

B.Petitioner's Inculpatory Statements

The petitioner claims that his convictions were obtained in violation of his constitutional rights because inculpatory statements made to the Wilton police were the result of an illegal arrest and were elicited after false promises that police would place him in a drug treatment program.Regarding his claim of illegal arrest, the Connecticut Supreme Court found that the petitioner was under the arrest of Westport police, not Wilton police, during his trip through Wilton.The petitioner did not challenge the legality of his arrest by Westport police.The court further found that the petitioner had been given Miranda warnings prior to his ride with Wilton police, and that he had consented to accompanying the Wilton police.Given these facts, the court concluded that the petitioner's "claim ... goes not to the legality of his arrest, but to the authority of the Wilton police to hold him in custody pending disposition of the Westport charges" and that the petitioner's statements were not the product of an illegal arrest in violation of the Fourth Amendment.Id. at 255-56, 496 A.2d 513.

"Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that the evidence obtained in an unconstitutional search or seizure was introduced at his trial."Stone v. Powell,428 U.S. 465, 494, 96 S.Ct. 3037, 3052, 49 L.Ed.2d 1067(1976)(footnotes omitted);accordAgee v. White,809 F.2d 1487, 1490(11th Cir.1987).A court need not inquire into the merits of a Fourth Amendment claim unless the petitioner alleges that something impaired his opportunity to litigate the issue.Doleman v. Muncy,579 F.2d 1258, 1265(4th Cir.1978).The record indicates that the Connecticut courts afforded the petitioner ample opportunity to challenge the legality of his temporary detention by Wilton police.To the extent that the petitioner argues that statements made to Wilton police were introduced as fruits of a violation of his Fourth Amendment rights, he has failed to state a claim upon which federal habeas relief can be granted.

However, a court's inquiry under the Fourth and Fifth Amendments is not identical.SeeLanier v. South Carolina,474 U.S. 25, 26, 106 S.Ct. 297, 298, 88 L.Ed.2d 23(1985);Dunaway v. New York,442 U.S. 200, 217, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824(1979);Brown v. Illinois,422 U.S. 590, 601-04, 95 S.Ct. 2254, 45 L.Ed.2d 416(1975).The voluntariness of a confession presents a mixed question of fact and law.SeeMiller v. Fenton,474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405(1985).In determining whether the petitioner's rights under the Fifth Amendment were violated, the Court"may give different weight to the facts as found by the state court and may reach a different conclusion in light of the legal standard."Sumner v. Mata,455 U.S. at 597, 102 S.Ct. at 1306-07.To the extent that the petitioner alleges that his statements were obtained in violation of his Fifth Amendment rights, his claim requires consideration.

The petitioner maintains that Westport and Wilton police impermissibly induced his confession to Wilton police by promising to get him into a drug addiction treatment program.Apparently, the Connecticut Supreme Court understood the petitioner as alleging that police promised to place the petitioner in a drug treatment program in lieu of imprisonment.SeeState v. McCarthy,197 Conn. at 256, 496 A.2d 513(citingBrady v. United States,397 U.S. 742, 753, 90 S.Ct. 1463, 1471, 25 L.Ed.2d 747(1970)).

During the suppression hearing, Officer Gary Tranberg of the Westport police testified that the defendant was a known drug addict and was experiencing drug withdrawl symptoms shortly after his arrest.The following exchange then occurred between defense counsel and Tranberg.Counsel: "Did you ever talk to Mr. McCarthy about anything to the effect that, if he gave you a

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