Quintero v. Heath

• Decision Date: 17 August 2012
• Docket Number: 10 Civ. 8709 (CS)(LMS)
• Parties: FLAVIANO QUINTERO, Petitioner, v. PHILIP HEATH, Superintendent, Sing Sing Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

FLAVIANO QUINTERO, Petitioner,

v.PHILIP HEATH, Superintendent, Sing Sing Correctional Facility, Respondent.

10 Civ. 8709 (CS)(LMS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Dated: August 17, 2012

REPORT AND RECOMMENDATION

TO: THE HONORABLE CATHY SEIBEL, U.S.D.J.

Petitioner Flaviano Quintero, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition") to challenge his conviction for predatory sexual assault (N.Y. Penal Law § 130.95(2)) and rape in the first degree (N.Y. Penal Law § 130.35(1)). See Petition. On September 9, 2008, following his guilty plea, Petitioner was sentenced to an indeterminate term of twenty years to life of imprisonment and twenty years of post-release supervision on the count of predatory sexual assault, and to a determinate term of twenty years' imprisonment and twenty years of post-release supervision on the count of rape in the first degree. See Doc. # 5, Respondent's Affidavit in Answer to a Petition for a Writ of Habeas Corpus, Ex. 12¹ (Sentencing Hearing Transcript, herein, "S") at 10 - 11 (Feb. 2, 2011). The sentences are to run concurrently. S: 11.

Petitioner appealed the judgment to the New York State Appellate Division, Second Department. See Brief for Appellant, People v. Quintero, 898 N.Y.S.2d 489 (N.Y. App. Div. 2010) (No. 2008-08636) (herein, "Brief for Appellant"). On appeal, Petitioner argued that his conviction should be vacated and a new hearing ordered because the trial court erred in denying his motion to suppress incriminating statements made to law enforcement. See id. at 16. On April 13, 2010, the Appellate Division affirmed the judgment against Petitioner. People v. Quintero, 898 N.Y.S.2d 489 (N.Y. App. Div. 2010). Petitioner's ensuing application for leave to appeal the Appellate Division's Order to the New York Court of Appeals was denied on September 2, 2010. People v. Quintero, 935 N.E.2d 824 (N.Y. 2010).

On October 29, 2010, Petitioner filed his petition for writ of habeas corpus. Pet. at 6. Petitioner argues that habeas relief should be granted because the trial court should have suppressed statements made by Petitioner to police on December 29, 2007 and January 3, 2008, because those statements were not truly spontaneous due to the allegedly suggestive settings. Pet. at 4. I conclude, and I respectfully recommend that Your Honor should conclude, that the instant Petition should be dismissed.

BACKGROUND

I. The Crimes and the Investigation

On November 28, 2007, in the village of Pawling, New York, Petitioner broke into the residence of H.F.² Resp't Ex. 10 (Plea Allocution Transcript, herein, "P.A.") at 15. At approximately 12:20 A.M., Petitioner knocked H.F. to the ground, placed his hands around her throat, and raped her. Id.

On or about December 6, 2007, in the village of Pawling, New York, at approximately 8:15 P.M., Petitioner grabbed K.R.F. around the neck from behind while she was outside her home. P.A.: 16. He then dragged her inside the house, where he raped her. Id.

In December 2007, Dutchess County Detective Daren Cummings was assigned to the investigation of these rapes. Tr. of Huntley Hearing,³ People v. Quintero, Ind. No. 0727/08, at 8 (Dutchess Cty. Ct. June 15, 2008) (herein, "H"). Cummings came to suspect a man named Flaviano Quintero, who was then in the custody of Michigan State Police, and so Cummings flew to Michigan with Dutchess County Detective Tom Cuddeback to retrieve Quintero. H: 10. Prior to Petitioner's extradition to New York, Michigan police told Cummings that Petitioner had already been advised of his Miranda rights and had invoked his right to counsel. H: 24.

On December 29, 2007, Cummings and Cuddeback boarded a commercial plane from Flint, Michigan, to New York City with Petitioner, with a layover in Detroit. H: 11. En route to Detroit, Petitioner was seated next to Cummings. H:12. Petitioner asked the detective if he was being taken to a Mexican jail or a New York jail, and Cummings responded, "New York." Id. After a brief pause, Petitioner then stated that "he knew [Detective Cummings] would catch him, he saw himself on TV for what he did to the girls,⁴ for [Detective Cummings] to tell them that he was sorry, that he was sorry to [Detective Cummings] as well... that he knew he would also be in trouble for . . . the computers he took from the two ladies." H: 13. Petitioner asked Cummings to give back the computers he had stolen from his victims. Id. No furtherconversation between Petitioner and police took place during the trip. H: 15.

When Petitioner and the detectives arrived in New York, the detectives had been traveling for over twenty-four hours, and so postponed Petitioner's intake processing to a more convenient time on January 3, 2008. H: 16. On that date, Petitioner was brought from the Dutchess County Jail to the detective bureau for his photographs and fingerprints to be taken and his pedigree information to be obtained. H: 17. However, Detective Cummings was initially unable to process Petitioner, at first because Cummings was unable to find another detective to assist him as required by department policy, and then because of a problem with the computer system. H: 30 - 31. At the beginning of what became a ninety minute wait, before he realized that the delay would be significant, Cummings kept Petitioner near his desk, later transferring him to a holding cell when Cummings realized Petitioner would not be processed promptly. H: 17 - 18.

Petitioner's preliminary hearing on the charges against him was also scheduled for January 3, 2008. H: 34. The People's evidence on those charges included a white MacBook computer⁵ which Cummings had placed on his desk, "ready to go to the preliminary hearing," close to where Petitioner had been brought to wait. H: 18. While awaiting processing, Petitioner told Cummings he thought the computer on Cummings's desk was the one Petitioner took from "the first house" that he had given to his brother, Gumaro.⁶ Id. Petitioner then asked thatCummings "give it back," ostensibly to the rightful owner. H: 19. Cummings was eventually able to process Petitioner.

II. Procedural History

Petitioner was indicted on January 17, 2008, by Dutchess County Indictment Number 7/2008, on the following counts: two counts of Predatory Sexual Assault (N.Y. Penal Law § 130.95(2)) (Counts 1 and 2); two counts of Rape in the First Degree (N.Y. Penal Law § 130.35(1)) (Counts 3 and 4); two counts of Burglary in the Second Degree, as a Sexually Motivated Felony (N.Y. Penal Law §§ 140.25(2), 130.91(1)) (Counts 5 and 6); and two counts of Criminal Possession of Stolen Property in the Fifth Degree (N.Y. Penal Law § 165.40) (Counts 7 and 8). Resp't Ex. 2.

After the People served Petitioner with a Huntley Notice, Resp't Ex. 4, indicating their desire to use Petitioner's December 29, 2007, and January 3, 2008, statements to police against him at trial, Petitioner made an omnibus pretrial motion.⁷ Resp't Ex. 5 (Omnibus Motion, herein, "O.M."). As part of this Omnibus Motion, Petitioner sought dismissal of Counts 1 and 2 on the grounds that the statute in question was unconstitutionally vague and violated the principles of double jeopardy. O.M.: 1. Petitioner also argued that all statements referenced in the Huntley Notice should be suppressed because they had been obtained in violation of Petitioner's rights, including his right against self-incrimination and his right to counsel underthe New York and United States Constitutions. O.M.: 18 -19. In the alternative, Petitioner requested a Huntley hearing to determine the statements' admissibility. Id. at 19.

In an April 28, 2008, Decision and Order, County Judge Dolan addressed the various claims contained in Petitioner's Omnibus Motion, and dismissed Count 1 of the Indictment. Resp't Ex. 8 (Decision and Order) at 2 - 4. Judge Dolan also granted Petitioner's request for a Huntley hearing, which was held on June 16, 2008. Id. at 6; H: 1.

At the hearing, after Detective Cummings's testimony, Judge Dolan denied Petitioner's motion to suppress his December 29 and January 3 statements in its entirety. H: 36. He evaluated each set of statements in turn. As to the statements made by Petitioner to Cummings en route to New York on December 29, Judge Dolan found that

Uncontroverted testimony is that these statements [made by Petitioner on December 29]... were not in response to any questions asked and that the detective did not do or say anything that could be characterized as inducing the defendant to speak in any way, shape, or form. The defendant was not interrogated at all on his return flight from Michigan.

H: 34. As to the statements made by Petitioner to Cummings while waiting to be processed on January 3, Judge Dolan found that "this statement made by the defendant was not in response to any question. There was no act by Cummings or any other officer that could reasonably be inferred as inducing the statements attributed to this defendant." H: 36. The judge concluded that as a matter of law both sets of statements were spontaneously made, and that "nothing the officer did on either occasion could be construed as inducing the defendant to make statements against his own will." H: 36 - 37. He therefore found that the statements were admissible at trial.

On August 6, 2008, Petitioner pled guilty to Counts 2 and 3 of the indictment.⁸ P.A.: 17 -18. On September 9, 2008, Petitioner was sentenced to twenty years to life on Count 2, and twenty years determinate on Count 3, concurrent with Count 2, with twenty years of post-release supervision. S: 10- 11.

On December 7, 2009, Petitioner directly appealed his conviction to the Appellate Division, Second Department. See Brief for Appellant. Petitioner's claim of error was restricted to Judge Dolan's determination that Petitioner's January 3, 2008, statements to Detective Cummings were admissible.⁹ Id. at 16. He conceded that his December 29, 2007, statementswere "spontaneous and...