McKeon v. P.D. Heath
| Decision Date | 29 October 2013 |
| Docket Number | No. 1:12-CV-0485(MAT),1:12-CV-0485(MAT) |
| Parties | RICHARD J. McKEON, Jr., Petitioner, v. P.D. HEATH, Superintendent, Respondent. |
| Court | U.S. District Court — Western District of New York |
Richard J. McKeon, Jr. ("McKeon" or "Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated following a judgment entered on February 27, 2009, in New York State, Orleans County Court, convicting him, after a guilty plea, of Manslaughter in the First Degree (N.Y. Penal Law § 125.20(2)).
On March 7, 2008, the charred body of Maureen Migliore ("Migliore" or "the victim") was found along a road in the Town of Barre in Orleans County, New York. Migliore had been strangled to death and then doused with an accelerant and set on fire. By the following day, the police had identified McKeon, who had been the victims's boyfriend, as the sole suspect. On March 8, 2008, the police executed a search warrant at Petitioner's home on Route 240in the Town of West Valley in Cattaraugus County and seized several items incriminating him in the crime. McKeon also voluntarily made several incriminating statements to the police, although he did not expressly admit to murdering his girlfriend.
On March 31, 2008, an Orleans County grand jury charged McKeon with second degree (intentional) murder (N.Y. Penal Law § 125.25(2) and unlawful transportation of human remains (N.Y. Public Health Law § 4144(1).
A suppression hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), was conducted on July 15, 2008, and July 24, 2008. New York State Police Investigator Joshua Keats ("Inv. Keats") and Orleans County District Attorney's Office Investigator Joseph Sacco ("Inv. Sacco") testified that they traveled to McKeon's home on Route 240 to speak with him about Migliore's disappearance. After inviting the officers inside, McKeon stated that he had last seen Migliore during the afternoon of March 6, 2008. She had packed her belongings in Wal-Mart shopping bags, walked to the end of the driveway, and turned left. McKeon said he had not seen Migliore since that time.
McKeon explained that he was a police officer and had begun his day on March 6, 2008, by working at traffic court. Later that day, he went to the hospital to see his daughter, who was undergoing cancer surgery. While there, he spoke to Migliore on thephone numerous times; they had argued because Migliore was jealous of the time he was spending with his daughter and ex-wife.
When he returned home later that night, they talked and agreed to end their relationship. After returning some jewelry to him, Migliore left his house on foot with her belongings packed in Wal-Mart bags. McKeon mentioned that Migliore's ex-husband had once poured gasoline on her and set her afire; she still had scars on her neck from that attack.
The investigators asked McKeon whether he would be willing to accompany them to the police barracks. McKeon asked if he was in trouble and inquired whether he would be permitted to return home after the interview. Inv. Sacco stated that he could not remember how he answered these questions. Ultimately, McKeon agreed to go back to the barracks with the investigators. H.9, 74.1
During the car ride, the investigators talked with McKeon about his career (he was a police officer at Buffalo State College) and his personal life (he was divorced and had two daughters from his previous marriage). McKeon explained that Migliore had a drinking problem, which caused tension in their relationship.
They arrived at the barracks in Machias about 6 p.m., and McKeon was brought to an interview room. After Inv. Keats questioned the veracity of McKeon's claim that Migliore had started walking down Route 250, a busy roadway, by herself with no cell phone or money, McKeon lowered his head and stated, "I don't know what I should do now." At that point, Inv. Keats read McKeon his Miranda2 warnings, and McKeon agreed to continue speaking with the investigators. H.24-25.
Over the next four hours, McKeon gave multiple iterations of the events of the night Migliore died, although he stopped short of admitting that he killed her. In his final, written statement, McKeon stated that when he returned home from the hospital on the night of March 6, 2008, finding Migliore highly intoxicated. She was "on [him] immediately" in a jealous rage. Migliore, who had taken off all her clothes, threatened to run to the neighbors' house and tell them he was abusing her. She asked him what his employer would think if she made such a complaint and began to throw things and smash dishes. McKeon said that Migliore spat in his face during the argument because she knew how much he hated that; he commented that "it was almost like she wanted [him] to hurt her." H.29.
McKeon stated that the next thing he remembered was Migliore lying on the floor on her stomach with her head turned to the sideand her eyes partially closed. McKeon remembered driving in his car, but he could not recall where and he did not know where Migliore was at the time. McKeon remembered returning home and falling asleep in his recliner.
McKeon concluded his review of his written statement at about 11:45 p.m. and excused himself to use the lavatory. When he returned, he asked whether it would be possible to keep the matter out of the media to protect his parents.
Meanwhile, New York State Police Investigator Darryl O'Shei ("Inv. O'Shei") had returned to the barracks after executing a search warrant at McKeon's house. After reviewing Petitioner's statement, he went in to speak to McKeon at about 12:25 a.m. Inv. O'Shei asked McKeon whether he, as a police officer, would believe his statement if someone presented it to him. McKeon replied, "No." H.81. Inv. O'Shei asked McKeon to try to fill in some of the gaps in his story. McKeon stated that Migliore had angrily knocked over the kitchen table. He repeated that he had blacked out, and when he came to, Migliore lay immobile on the floor. McKeon remembered getting into his car; he thought that Migliore's body must have been in the trunk. He recalled that there was a gasoline can in the trunk that he threw out the window after he removed Migliore's body from the trunk.
The conversation between Inv. O'Shei and McKeon lasted for about half an hour. Inv. O'Shei transcribed McKeon's statement from memory after he went home.
Following the suppression hearing, Judge Punch ruled from the bench that there was no basis to deem the statements inadmissible as McKeon had never been subjected to custodial interrogation and even if he had been, he validly waived his rights. H.102.
Just over two weeks prior to the trial's scheduled start-date, the parties appeared before Orleans County Court Judge James Punch. The prosecution conveyed the following plea offer: In exchange for McKeon's plea of guilty to first degree manslaughter in full satisfaction of the indictment, the trial court would impose a determinate sentence of no less than 15 and no more than 20 years, plus 5 years of post-release supervision. McKeon indicated that he understood the terms of the offer, and he accepted it.
During his plea colloquy, McKeon stated that on the night of March 6, 2008, he and the victim got into an argument. He said that he was trying to defend himself from her (she was trying to burn him with cigarettes) when he "just snapped . . . and went too far and apparently [he] strangled her." P.8. Judge Punch asked McKeon whether he "could have left the house rather than kill her." P.8-9. McKeon replied that he "[p]robably" could have, but "it would have taken a lot of force . . . to get passed [sic] her and get out ofthe door." P.9. He conceded that he would not have been required to use "deadly force" to leave his home. P.9.
McKeon explained that he strangled Migliore with one hand by squeezing her neck for five to ten minutes and intentionally compressing her windpipe. P.9, 11-12. He did not release her until she collapsed on the ground. P.12-13. When Judge Punch asked if he intended to kill her, McKeon responded, "[y]es." P.13.
Judge Punch next inquired as to what McKeon did with his girlfriend's corpse. McKeon stated that he put it in his car and transported it somewhere in Orleans County, but he did not know the location. Then he "[d]umped her out of the car." P.13-14.
When McKeon denied having discussed a potential justification defense with his attorney, Judge Punch explained that "use of force is permitted to protect you against oncoming force from another person" but "you can't use deadly force when you still have the ability to retreat." P.15. Judge Punch added that deadly force cannot be used "unless it appears reasonably [sic] to you that deadly force is about to be used against you." P.15. Judge Punch asked McKeon whether it was "clear" to him that "self-defense or justification would not apply to what [he] did[.]" P.15. McKeon responded affirmatively and proceed to enter a guilty plea to first degree manslaughter. P.16.
On December 3, 2008, McKeon sent a letter to the County Court in which he alleged that: (1) his attorney, the prosecutor, and the County Court had mishandled his case; (2) he was only given 15 minutes to consider the plea deal and was "forced" to lie during the plea allocution; (3) unspecified ex parte communications had occurred between the prosecutor and the court; and (4) Judge Punch should have recused himself because he was biased, had done "improper things," and was in poor health. See Respondent's Exhibit ("Resp't Ex.") A. After the prosecutor filed opposition papers, Petitioner converted his letter to a formal motion in which he additionally asserted that, in order to force him...
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