Nelson v. Walker

• Decision Date: 07 August 1997
• Docket Number: No. 1213,Docket 96-2354.,1213
• Citation: 121 F.3d 828
• Parties: Tommy NELSON, Petitioner-Appellant, v. Hans WALKER, Supt. Auburn Corr. Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

121 F.3d 828

Tommy NELSON, Petitioner-Appellant, v. Hans WALKER, Supt. Auburn Corr. Facility, Respondent-Appellee.

No. 1213, Docket 96-2354.

United States Court of Appeals, Second Circuit.

Argued May 2, 1997.

Decided August 7, 1997.

Randa D. Maher, Great Neck, NY, for Petitioner-Appellant.

Sharon Y. Brodt, Assistant District Attorney, Queens County, Kew Gardens, NY (Richard A. Brown, District Attorney, John M. Castellano, Assistant District Attorney, Kew Gardens, NY, of counsel), for Respondent-Appellee.

Before: MINER and CALABRESI, Circuit Judges, and SHADUR, District Judge.^*

MINER, Circuit Judge:

Petitioner-appellant Tommy Nelson appeals from a judgment entered in the United States District Court for the Eastern District of New York (Sifton, J.) denying his petition for a writ of habeas corpus, the court having determined that Nelson's confession was not coerced by the police and therefore that Nelson was not deprived of his Fifth Amendment privilege against compulsory self-incrimination. The district court presumed the correctness of the state court's factual findings that Nelson had not been threatened and beaten by the police prior to giving his confession, and further determined that Nelson's claims, other than his coercion and Miranda claims, were barred from federal habeas review.

For the reasons that follow, we affirm.

BACKGROUND

On December 16, 1981, Anthony Abruzzo, an off-duty police officer, was killed while trying to assist his father-in-law, Joseph Mehran, who was being robbed in the driveway of his own home. In March of 1982, police arrested Nelson on the basis of information provided by Nelson's former girlfriend, Shirley Fuller, who had been apprehended after attempting to cash stolen checks that were linked to the crime.

Nelson was taken to a police station, where he was interrogated. Nelson did not sign or initial any document indicating that he waived his Miranda rights. The interview was not recorded on audio or video tape, and no attorney was present. At some point during the interrogation, Nelson was taken by the police to a hospital. There, he was treated for a wound on his stomach and given a tetanus shot. He subsequently was brought for further processing to a police station different from the one in which he had been interrogated. Two days later, one of the detectives who had been present during the interrogation typed a standard police report form. The report included statements, purportedly made by Nelson during his interrogation, describing Nelson's participation in the robbery that led to Officer Abruzzo's death. The detective who typed the police report form later testified that the contents of the form were derived from notes he had taken during the interrogation and did not represent a verbatim recounting of Nelson's statement.

According to the officers involved in the arrest and interrogation, Nelson was advised of his rights and voluntarily waived them. Nelson was not subjected to police brutality, nor was he threatened or coerced into making his statements to the police. Two detectives asked Nelson questions, and one of the detectives wrote down Nelson's answers in a notebook in the form of a narrative. Two days later, the detective who had taken the notes typed the police report form, which memorialized the incriminating statements Nelson voluntarily made to the police shortly after being taken into custody.

Nelson disputes the state's version of the circumstances surrounding his purported confession. In his version of the facts, Nelson asserts that his rights were not read to him and he did not make the statements attributed to him. Nelson testified that on March 23, 1982, the arresting officers handcuffed him, placed him in an unmarked car, and physically abused him throughout the ride to the stationhouse. He asked for a lawyer, and was told that he had "lost all rights." Upon arriving at the stationhouse, he was taken into a room, still handcuffed, where approximately ten to fifteen officers had gathered. He claims that he was beaten again in the stationhouse, where he was subjected to intensive interrogation. When he continued to maintain his innocence, he suffered another beating, this time with one of the detectives striking him on the back and stomach with a rope or a wire.

There also were different versions of the origin and nature of the injuries for which Nelson required medical attention on the day of his arrest. According to Nelson, both his stomach and back were injured when the police beat him in order to coerce a confession. According to the state, Nelson sustained the abrasion on his stomach when the police restrained him during an attempted escape from the room in which he was being interviewed, and this occurred several hours after he already had confessed voluntarily.

The state offers no explanation for the injuries on Nelson's back. However, the state apparently infers from the medical records, which described only the abrasion on Nelson's stomach, that the wounds on Nelson's back necessarily were inflicted (or self-inflicted) at some point after Nelson had been treated at the hospital, and, therefore, after he already had confessed.

Nelson and two co-defendants, Larry Johnson and Derrick Jones, subsequently were charged with second degree murder, second degree attempted murder, first degree robbery, and second degree criminal possession of a weapon. Prior to trial, Nelson made a motion to suppress the statement given to the police on the day of his arrest. He alleged that he had not been advised of his Miranda rights, and that his confession was not voluntary, but was coerced by police officers who had threatened and beaten him following his arrest. He also asked the court to find that the police lacked probable cause for his arrest and that Shirley Fuller's statements were insufficient to establish probable cause, and moved for suppression of his confession on that basis as well.

A Legal Aid Society attorney, who had represented Nelson and Jones at their arraignment one day after their arrest in March of 1982, testified that he saw red marks on both defendants' stomachs and backs, and that he had requested medical attention for Nelson.¹ Another attorney testified that when he saw Nelson and Jones approximately six days after their arrest, both had similar red marks on their stomachs and backs, and both told him that the police had beaten them until they confessed.

After a suppression hearing, the state court determined that Fuller's statements established probable cause for Nelson's arrest. The court also found credible the police officers' testimony that Nelson's confession was voluntary and that, prior to making the statement, he was fully advised of his Miranda rights and voluntarily waived them.

On January 25, 1983, following a jury trial in the Queens County Supreme Court, Nelson was convicted on one count of second degree murder, one count of second degree attempted murder, three counts of first degree robbery, and one count of second degree criminal possession of a weapon. On May 24, 1983, he was sentenced to concurrent prison terms of 25 years to life on the murder conviction, and lesser concurrent sentences on the remaining counts.

Nelson appealed his conviction to the Appellate Division, Second Department. He argued that the trial court erred by (1) finding his confession voluntary; (2) finding that the police had probable cause to arrest him; (3) charging the jury with respect to the state's burden of proof concerning his alibi; and (4) imposing an excessive sentence.

On December 1, 1986, the Appellate Division affirmed Nelson's conviction. People v. Nelson, 125 A.D.2d 339, 509 N.Y.S.2d 67 (2d Dep't 1986). The Appellate Division found that the medical evidence did not support Nelson's claim that the confession was coerced by police beatings. See id. at 340, 509 N.Y.S.2d 67. The court also found that the police had probable cause to arrest Nelson, having established the reliability of their informant. See id. at 339, 509 N.Y.S.2d 67. On February 6, 1987, Nelson's application for leave to appeal to the New York Court of Appeals was denied. People v. Nelson, 69 N.Y.2d 831, 513 N.Y.S.2d 1038, 506 N.E.2d 549 (1987). Nelson also made two unsuccessful post-conviction motions challenging his conviction, pursuant to N.Y.Crim. Proc. Law §§ 330.30 and 440.10, respectively.

In April of 1994, Nelson, acting pro se, petitioned the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claimed that the police lacked probable cause to arrest him, did not properly advise him of his rights, and coerced his confession in violation of his rights under the Fifth Amendment. He also claimed that the trial court erred in failing to suppress his confession, in instructing the jury concerning his alibi testimony, and in sentencing him.

By order filed March 27, 1996, the district court denied Nelson's petition. In its ruling, the district court determined that Nelson's jury instruction, sentencing and Fourth Amendment claims were procedurally barred from federal habeas review, and, in any event, lacked merit. With regard to Nelson's coercion claim, the district court determined that Nelson was not deprived of his Fifth Amendment privilege against compulsory self-incrimination as a result of police coercion. In reaching this conclusion, the district court presumed the correctness of the state court's factual findings that Nelson had not been threatened and beaten by the police prior to confessing. Judgment was entered accordingly on April 3, 1996. Nelson sent to the district court a notice of appeal dated April 16, 1996. The district court received this notice on May 3, 1996, and granted a Certificate of Probable Cause ("CPC") dated May 16, 1996. This appeal followed.

DISCUSSION

I. The Certificate of Probable Cause

As an initial matter, respondent-appellee Hans Walker, superintendent of the Auburn Correctional...