Tankleff v. Senkowski, 2063

Citation135 F.3d 235
Decision Date12 January 1998
Docket NumberD,No. 2063,2063
PartiesMartin H. TANKLEFF, Petitioner-Appellant, v. D.A. SENKOWSKI, Superintendent of Clinton Correctional Facility, et al., Defendants-Appellees. ocket 97-2116.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Stephen L. Braga, Barry J. Pollack, Miller, Cassidy, Larroca & Lewin, L.L.P., Washington, DC, for Petitioner-Appellant.

Mark D. Cohen, Chief Assistant District Attorney, Riverhead, NY (James M. Catterson, Jr., District Attorney of Suffolk County; Glenn Green, Michael J. Miller & Steven A. Hovani, Assistant District Attorneys, of counsel), for Respondents-Appellees.

Before: CALABRESI, CABRANES, and PARKER Circuit Judges.

CALABRESI, Circuit Judge:

Martin Tankleff was convicted in New York state court for the murder of his parents, Seymour and Arlene Tankleff. On February 7, 1996, he filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The United States District Court for the Eastern District of New York (Thomas C. Platt, Judge ) denied Tankleff's petition on January 30, 1997. On February 28, 1997, Judge Platt granted Tankleff a certificate of appealability.

Tankleff raises four main claims in his habeas petition. First, he asserts that his Fifth Amendment rights were violated by the manner in which his confession was obtained. Second, he contends that the jury selection process violated his constitutional rights. Third, he argues that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding evidence that he could have used in the cross-examination of two key witnesses. Finally, he suggests that certain arguments made by the prosecution in summation violated his due process rights.

After careful analysis of all of Tankleff's claims, we have concluded that he is entitled to federal court relief on only one of them--his claim that the trial court erred in refusing to consider Tankleff's objection that the prosecution had improperly used its peremptory strikes against African-American jurors. The trial court refused to entertain this objection in the mistaken belief that, because Tankleff is not himself an African American, he could not challenge the prosecution's use of its peremptory strikes against African-American jurors under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). But the Supreme Court made clear in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991), that a Batson claim is in no way precluded by the fact that the defendant's race differs from that of the excluded jurors. See id. at 415-16, 111 S.Ct. at 1373-74.

Judge Platt recognized that the state court had erred in this regard, but held that the error was harmless. Harmless error analysis is inappropriate in this context, however, because exclusion of jurors on the basis of race is a structural error that can never be harmless. See Peck v. United States, 106 F.3d 450, 454 (2d Cir.1997) ("Structural errors 'defy analysis by harmless error standards ....' ") (quoting Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 1717-18, 123 L.Ed.2d 353 (1993)). Accordingly, we hold that Tankleff is entitled to a hearing on his Batson claim, and remand the case to the district court for further proceedings. As to all of Tankleff's other claims, we find that none of them warrants federal habeas relief.


The relevant facts--as determined by the state court and recounted in the testimony of various police officers--are as follows. Police arrived at the Tankleff residence in a wealthy section of Belle Terre, New York, at 6:17 a.m. on September 17, 1988, in response to Martin Tankleff's 911 phone call. They found seventeen-year-old Tankleff outside the house, shouting that someone had murdered his parents. Arlene Tankleff was lying dead in the master bedroom of the house, while Seymour Tankleff was unconscious and gravely wounded in the study. Tankleff said he had discovered his parents' bodies when he awoke for school. He also told the police that he believed his father's former business partner, Jerry Steuerman, had committed the crime. Steuerman owed Seymour Tankleff a great deal of money, and had been at their house the evening before for a late-night poker game.

Shortly after the police arrived, one officer instructed Tankleff and his brother-in-law, Ronald Rother, to leave the house and go to separate police cars so that they wouldn't "contaminate each other's story." At 6:37 a.m., Tankleff went outside and sat in the front seat of a police car. Starting at around 7:40 a.m., a series of homicide detectives interviewed Tankleff near the police cars. At no time during these interviews was Tankleff given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The detectives discussed what Tankleff had told each of them and, noting some inconsistencies in his accounts of the events of that morning, decided to take him to police headquarters for further questioning. At this point, the police concede, they considered Tankleff a suspect. At 8:40 a.m., Tankleff agreed to go with Detective McCready to the police station. McCready questioned him further during the forty-minute drive. At 9:40 a.m., Detectives McCready and Rein took Tankleff to a ten-foot by ten-foot, windowless room where he was interviewed continuously for the next two hours.

The defense has characterized this interview as "increasingly hostile." The government disputes this interpretation, but acknowledges that Tankleff was questioned in detail about inconsistencies in his story and that the detectives openly expressed their disbelief with his version of the morning's events. At one point, they asked him to demonstrate how he performed first aid on his father. Detective McCready then leaned forward and said that he found Tankleff's account "ridiculous and unbelievably absurd." The government asserts that while the detectives " at times raised and lowered their voices as they related inconsistencies in [Tankleff's] account to [them], and indeed quickened the pace of the interview at approximately 11:30 to 11:40 a.m., they never yelled at or somehow 'browbeat' " Tankleff. At approximately 11:45 a.m., McCready left the interview room and faked receiving a telephone call. On the phone, he spoke in a voice loud enough to be overheard by Rein, who was still in the interview room with Tankleff, and presumably was overheard by Tankleff as well. After a few minutes, McCready hung up the phone and returned to the interview room. He said that he had just spoken with a detective at the hospital and that the doctors had pumped Seymour Tankleff full of adrenaline, that he had come out of the coma, and that he had accused his son, Martin. This story was not true. Seymour remained in a coma until his death a few weeks later, never awakening and never accusing his son of the crime.

Tankleff continued to deny having committed the crime, saying that his father might have said that because Tankleff was the last person he saw before falling unconscious. Rein asked if Seymour was conscious when Tankleff "beat and stabbed him." Tankleff then offered to take a lie detector test, which the police refused to administer. Rein asked, "Marty, what should we do to a person that did this to your parents?" Tankleff responded, "Whoever did this to them needs psychiatric help." At this point, Tankleff said, "Could I have blacked out and done it?" and asked whether he could have been "possessed." The detectives encouraged him to say more, and Tankleff uttered, "[I]t's coming to me."

Only then, at around 11:54 a.m., did Detective McCready stop the questioning and, for the first time, give Tankleff the Miranda warnings. Tankleff waived his rights, and the interrogation continued. Tankleff stated, "I need psychiatric help," and then proceeded to describe to the detectives the reasons for his actions, the sequence of events, and the manner in which he had committed the acts. He was placed under formal arrest later that afternoon.

The trial court denied Tankleff's motion to suppress the confession, and Tankleff was convicted of both murders after a jury trial. He was sentenced to two consecutive indeterminate terms of twenty five years to life. On direct appeal, the New York Supreme Court, Appellate Division affirmed his conviction in a three-to-two decision. See People v. Tankleff, 199 A.D.2d 550, 606 N.Y.S.2d 707 (App.Div.1993), aff'd 84 N.Y.2d 992, 622 N.Y.S.2d 503, 646 N.E.2d 805 (1994). The two dissenting judges believed that Tankleff's confession was obtained in violation of Mirandaand wrote that "[i]n view of the absence of any other evidence connecting the defendant to the murders, except for the confession which he disavowed at the trial, the indictments should be dismissed." Id. 606 N.Y.S.2d at 712 (O'Brien, Eiber, JJ., dissenting). The dissenting judges also thought that the prosecutor's improper comments during closing arguments warranted reversal. See id. at 712-13. The New York Court of Appeals unanimously affirmed the appellate division's decision upholding Tankleff's conviction. See People v. Tankleff, 84 N.Y.2d 992, 622 N.Y.S.2d 503, 646 N.E.2d 805 (1994). Tankleff filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which the district court denied.

A. Certificate of Appealability

As a preliminary matter, the state argues that Tankleff is required to obtain a certificate of appealability ("COA") in accordance with the requirements established by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, and that the COA granted by the district court was defective under that Act. The AEDPA replaced the old certificate of probable cause ("CPC") with the new COA. See 28 U.S.C. § 2253(c)(2), (3) (West Supp.1997). In order to obtain a CPC, a petitioner was required...

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