Parker v. Ercole

• Decision Date: 15 October 2008
• Docket Number: No. 9:05-CV-1418 (DNH).,9:05-CV-1418 (DNH).
• Citation: 582 F.Supp.2d 273
• Parties: James C. PARKER, Petitioner, v. Robert ERCOLE, Respondent.
• Court: U.S. District Court — Northern District of New York

582 F.Supp.2d 273

James C. PARKER, Petitioner, v. Robert ERCOLE, Respondent.

No. 9:05-CV-1418 (DNH).

United States District Court, N.D. New York.

October 15, 2008.

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James C. Parker, Petitioner pro se.

Andrew M. Cuomo, Office of the Attorney General, Lisa E. Fleischman, Esq., Ass't Attorney General, New York, NY, for Respondent.

MEMORANDUM—DECISION and ORDER

DAVID N. HURD, District Judge.

Petitioner James Parker ("Parker," or "petitioner"), is currently incarcerated at the Green Haven Correctional Facility as a result of a 2001 conviction on two counts of first degree sodomy (N.Y. PENAL LAW § 130.50(3)).¹ He seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the grounds that (1) the trial court should have suppressed the victim's testimony as the fruit of unlawful police conduct in violation of the Fourth, Fifth, and Fourteenth Amendments;(2) trial and appellate counsel were ineffective;² (3) he was not afforded a full and fair review on direct appeal of his Fourth Amendment claims; and (4) the trial court erred when it compelled defense counsel to disclose the victim's mental health records to the prosecutor. Dkt. No. 1 at Grounds One through Five; Memorandum of Law ("Mem.") at 1-32; Dkt. No. 16, Traverse, at 1-12. For the reasons that follow, the petition must be denied.

I. Background

A. Facts Established at Trial:

According to the testimony adduced at trial, in late 1999 and early 2000, Parker lived at 205 Cleveland Avenue, Apartment 7, in Endicott, New York. Dkt. No. 13, Ex. A, Record on Appeal, Trial Transcript ("Trial Tr."), at 536-47. On March 22, 2000, petitioner approached the victim³ and some friends, and asked if they would like to play basketball or football. Id. at R569-70, 582-83.⁴ The victim and his friends agreed to play basketball. After the game, the boys went with petitioner to his apartment. They ate snacks, watched children's movies and played games. Id. at R549-50; 570-71. The victim and his sister began going to petitioner's apartment almost every day after school. Id. at R549-50; 556-60.

In February 2000, the victim went to petitioner's apartment alone. On one occasion, petitioner pulled down the victim's pants and performed oral sex on him. Id. at R572, 590. He told the victim that he loved him. Id. at R577. On another occasion near Valentine's Day 2000, petitioner asked the victim to perform oral sex on him, but the victim kissed petitioner's penis instead. Id. at R573-75, 590. Petitioner told the victim, "I hope you love me too." Id. at R577. The victim continued to visit petitioner at his apartment after these incidents because he thought petitioner would not do these things again. Id. at R575, 595.

In March 2000, Parker was moving away and the victim went to his apartment to say goodbye. Petitioner helped him fix his bicycle, and he and the victim then went up to petitioner's apartment. The victim washed his hands and began watching a movie. He was laying on his stomach on the floor propped up on his elbows. Id. at R575-76, 593-94. Petitioner pulled down the victim's pants and placed his penis inside the victim's anus. Id. at R576. The victim told petitioner to stop, and he did. Id. at R578, 594-95. He did not see petitioner again after this incident. Id. at R596. The victim testified that he told his sister what had happened, but he was afraid to tell his mother. Id. at R595. The victim's sister denied that he told her what happened, testifying that she learned about the incident after petitioner moved. Id. at R635.

On March 24, 2000, Detective Joseph Sculley of the Village of Endicott Police Department interviewed the victim in the presence of his mother and stepfather. Trial Tr. at R578, 616-18. The victim told Detective Sculley about the two sodomy incidents in February 2000. Parker was arrested. Id. at R617-18. In an interview with the victim's mother the following Monday, Detective Sculley learned that there had been a third incident in March 2000. Id. at R619-21.

On February 22, 2001, an indictment was returned charging Parker with three counts of first degree sodomy. Id. at R761-64. Defense counsel filed several pretrial motions (R767-93, 836-69), and numerous hearings were held regarding the admissibility of evidence at trial.

B. Suppression Hearing

The crimes at issue in this petition took place in Endicott, New York. The investigation into these crimes, however, began in Elmira, New York.

On March 22, 2000, Officer Brian Ellis of the Elmira Police Department responded to a radio call from the mother of a ten-year-old boy. Dkt. No. 13, Ex. A, Suppression Transcript, 11/9/00, at R8-9. The woman explained to Officer Ellis that earlier that day, petitioner had approached her son and two friends in Eldridge Park in Elmira, and asked the boys if he could take photographs of them wrestling. Id. at R10-12. Petitioner told the boys he was taking the pictures for a class. Id. at R11, 14. The boys told Officer Ellis that petitioner would return to the park at 4:00 p.m. the following day to take more photographs. Id. at R14. Officer Ellis recorded their descriptions of petitioner and his car. Id. at R10-11.

Officer Ellis reported the incident to Sergeant Daren Minch. On March 23, 2000, Officer Ellis, Sergeant Minch, and two other officers parked in various locations in or near the park. Id. at R15. At approximately 3:55 p.m., Officer Ellis saw a car matching the description given by the boys, and followed it into the park. Id. at R16-17. Officer Ellis activated his emergency lights, stopped petitioner, and ordered him to produce his license and exit the car. Id. at R17-18. There was a large quantity of personal property in the car, appearing as if petitioner was moving or living in the car. Id. at R18, 28. Parker stated that he had just moved to the area from Florida the previous October, and explained that he was on his way to his brother's house. Id. at R18-19.

Parker gave Officer Ellis permission to search his car as Sergeant Minch arrived. Id. at R19-20, 28, 39, 45. Officer Ellis opened the driver's side door and saw a black camera case with a camera inside. Petitioner admitted to Sergeant Minch that he had been in the park the day before and had photographed the boys. Id. at R45-46. Officer Ellis ran Parker's license, and learned that he had two active warrants for his arrest. Id. at R20, 47. After confirming the warrants, Officer Ellis arrested Parker and took him to police headquarters. Id. at R21-22, 29, 47. Parker's car was impounded and towed. Id. at R29-30, 47.

At Sergeant Minch's direction, Officer Ellis participated in an inventory search of the car. Id. at R30-31, 48, 50-52. He found photo albums containing pictures of nude boys and journals that described possible criminal activity. Id. at R33-34, 48. The search ceased until an evidence technician arrived, and any items that were potentially incriminating were separated from the rest of Parker's property. Id. at R49. The items were transported to the detective division. On the advice of a prosecutor, Sergeant Minch obtained a search warrant before examining the items further. Id. at R50-52, 60. Search warrant in hand, Sergeant Minch discovered that Parker's journals described sexual activity with boys, and that he possessed pictures of undressed boys, publications by the North American Man-Boy Love Association ("NAMBLA"), and other related items. Id. at R50-53.

Later that night, at approximately 8:00 p.m., Detective David Smithers advised petitioner of his Miranda rights and interviewed him. Id. at R68-70. Petitioner stated that he was willing to answer questions, and did not ask for an attorney. Id. at R70-71, 74. Petitioner admitted that he liked boys between the ages of ten and thirteen, and described a sexual relationship with the victim, a boy in Endicott, New York. Id. at R72-73. Detective Smithers transcribed petitioner's statement regarding this relationship. Petitioner signed and dated the statement. Id. at R76. Petitioner made two additional statements. Id. at R75-78. During the interview, petitioner used the bathroom, declined food, and drank four cans of soda. Id. at R80. The first written statement began at approximately 12:59 a.m. on March 24, 2000. The final written statement concluded at approximately 2:45 a.m. Id. at R81-83.

After the prosecutor rested, petitioner's attorney told the court that "I've discussed with [petitioner] his right to testify and I believe it's his wish to decline to do so at this time. Is that correct?" Petitioner nodded his head in the affirmative, and counsel added, "[b]ased on my advice, Judge." Id. at R93-94.

In a written memorandum submitted after the suppression hearing, defense counsel argued that the police lacked probable cause to stop petitioner. Dkt. No. 13, Ex. E at 3-5. He further argued that as a direct result of the illegal stop, petitioner was taken into custody on two misdemeanor warrants and his car was impounded and searched, leading to the discovery of incriminating evidence. Id. at 5-7. Counsel also argued that petitioner's consent to search his car was invalid because the fact that he took pictures of boys did not give rise to reasonable suspicion, and that the inventory search was invalid. Id. at 6-8. Counsel challenged the validity of the search warrant on the ground that the items in question had been seized and examined before the police applied for the warrant and probable cause could not be supported by the items to be searched. Id. at 9. Counsel further argued that petitioner's statements should also be suppressed as a fruit of the illegal stop because they were the product of illegal detention; and because police used items taken from the car to coerce the statements. Id. at 9-11. Finally, counsel argued that since the victim's identity was obtained from a journal taken from petitioner's car during the...