Tineo v. Heath
| Decision Date | 19 September 2012 |
| Docket Number | CV-09-3357 (SJF) |
| Parties | MICHAEL TINEO, Petitioner, v. PHILIP D. HEATH, Superintendent Sing Sing Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
On January 9, 2006, a judgment of conviction was entered against petitioner Michael Tineo ("petitioner") in the Supreme Court of the State of New York, Suffolk County (Mullen, J.) ("the hearing court"), upon (1) his plea of guilty to murder in the second degree (N.Y. Penal Law § 125.25), criminal possession of a controlled substance in the third degree (N.Y. Penal Law § 220.16), criminal possession of a controlled substance in the fourth degree (N.Y. Penal Law § 220.09), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02), reckless endangerment in the first degree (N.Y. Penal Law § 120.25), criminal mischief in the fourth degree (N.Y. Penal Law § 145.00) and resisting arrest (N.Y. Penal Law § 205.30); and (2) imposition of sentence. On July 24, 2009, petitioner filed a petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth herein, the petition is denied in its entirety.
In August and September 2005, a pretrial hearing was held before the hearing court to determine, inter alia, whether petitioner's statements to law enforcement officers should be suppressed and whether there was probable cause for petitioner's arrest. By decision and order dated October 28, 2005, the hearing court held that petitioner's statements to law enforcement officers, as well as other physical evidence, were all admissible at trial, finding, inter alia: (a) that petitioner's right to counsel during custodial interrogation was not violated since (1) he had not established "that counsel had actually 'entered' the matter about which [he] was being questioned," People v. Tineo, 10 Misc.3d 1071(A), 2005 WL 3636712, at * 6 (N.Y. Sup. Pet. 28, 2005), at the time that he made statements to law enforcement officers because when his mother, who is an attorney, called police headquarters on November 26, 2004 at approximately 11:40 a.m. looking for him, she was calling in her capacity as his mother, not as an attorney representing him, and (2) "there was nothing to show that [petitioner's arrest] [was] so closely related transactionally, or in space or time, [with a prior arrest four and one-half (4 ½) months earlier] that questioning on the one would inevitably elicit incriminating responses regarding the other[,]" id.; (b) that "the totality of circumstances show that [petitioner] was given his [Miranda] rights, understood them, voluntarily waived them, and spoke to the detectives at length," id. at * 8; and (c) that the law enforcement officers had probable cause to arrest petitioner on the murder charge and "[h]is flight and resistance just gave them an additional reason," id. at * 9.
On November 18, 2005, petitioner pleaded guilty to murder in the second degree (N.Y. Penal Law § 125.25), criminal possession of a controlled substance in the third degree (N.Y.Penal Law § 220.16), criminal possession of a controlled substance in the fourth degree (N.Y. Penal Law § 220.09), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02), reckless endangerment in the first degree (N.Y. Penal Law § 120.25), criminal mischief in the fourth degree (N.Y. Penal Law § 145.00) and resisting arrest (N.Y. Penal Law § 205.30). During his plea allocution, petitioner admitted: (1) that on November 20, 2004, (a) he brought a weapon, which he knew to be loaded and operable, to the premises located at 323 Montgomery Avenue, North Babylon, (b) he met Frank Howell ("Howell") at that location and (c) he shot the loaded weapon at Howell with the intent to cause his death; (2) that he secreted a computer containing one hundred forty-eight (148) bags of what he knew to be heroin and the gun with which he shot Howell, and which he had defaced for the purpose of concealment, at the premises located at 97 Garden City Avenue, Wyandanch; (3) that he exercised dominion and control over the bags of heroin, which had an aggregate weight of more than one-eighth (1/8) of an ounce, and possessed them with the intent to sell; (4) that on November 25, 2004, while he was operating a motor vehicle at the location of Belmont Avenue in North Babylon, (a) he hit his vehicle into another vehicle with the intent to damage the property of another and (b) he then drove his vehicle into close proximity of a person standing by a vehicle in front of him, almost striking that person; and (5) that in the late hours of November 25, 2004 into the early morning hours of November 26, 2004, he intentionally resisted arrest from police officers by fleeing and refusing to be handcuffed. (P. 6-14). In addition, defense counsel stipulated that gunshot wounds to Howell's head, neck and chest resulted in his death, (P. 7), and that the weight of the heroin possessed by petitioner was more than one-eighth (1/8) of an ounce, (P. 9). During the plea allocution, defensecounsel indicated, inter alia, that petitioner would not have pleaded guilty to any of the counts in the indictment had the hearing court granted his motion to suppress and that he intended to appeal the order denying his motion to suppress. (P. 16).
On January 9, 2006, petitioner was sentenced to concurrent terms of imprisonment of twenty (20) years to life on the conviction of murder in the second degree, ten (10) years on the conviction of criminal possession of a controlled substance in the third degree, five (5) years on the conviction of criminal possession of a controlled substance in the fourth degree, eight (8) years on the conviction of criminal possession of a weapon in the second degree, four (4) years on the conviction of criminal possession of a weapon in the third degree, two and one-third (2-1/3) to seven (7) years on the conviction of reckless endangerment in the first degree and one (1) year on each of the convictions of criminal mischief in the fourth degree and resisting arrest. (S. 20-21). On March 6, 2006, the hearing court modified the improper sentence on the conviction for criminal possession of a weapon in the third degree by instead imposing an indeterminate term of imprisonment of one (1) to three (3) years. (S2. 5). During the January 9, 2006 sentencing proceedings, defense counsel reiterated that petitioner had reserved his right to appeal from the denial of his motion to suppress, (S. 3-4), and the hearing court indicated that petitioner was not waiving his right to appeal, (S. 22).
Petitioner appealed his judgment of conviction to the Supreme Court of the State of New York, Appellate Division, Second Judicial Department ("Appellate Division") on the grounds, inter alia: (1) that there was no probable cause for his arrest (Point I); (2) that his right to counselwas violated when law enforcement officers (a) questioned him after his mother had called police headquarters, identified herself as an attorney and inquired about petitioner's whereabouts (Point II), and (b) questioned him about a prior arrest on which petitioner was represented by counsel (Point III); and (3) that the hearing court erred in concluding that his confession was voluntary because (a) the State failed to call the detectives who allegedly mistreated him to testify at the suppression hearing and (b) it had erroneously excluded as irrelevant the testimony of another individual who had been arrested in the same case and allegedly beaten as well (Point IV).
By order dated June 26, 2007, the Appellate Division affirmed the judgment of conviction, finding, inter alia: (1) that petitioner's arrest was lawful since his "conduct upon the approach by the police broke the chain of events and dissipated the taint of any illegality in their initial approach;" (2) that the hearing court properly denied petitioner's motion to suppress since his "statements to law enforcement officials were voluntarily made;" (3) that petitioner's "right to counsel did not attach when his mother, who is an attorney, aware that [petitioner] was missing, called the police in an effort to locate him;" and (4) that petitioner's remaining contentions were without merit. People v. Tineo, 41 A.D.3d 876, 876-77, 840 N.Y.S.2d 369 (2d Dept. 2007). On October 1, 2007, the Court of Appeals of the State of New York denied petitioner's application for leave to appeal to that court from the June 26, 2007 order of the Appellate Division. People v. Tineo, 9 N.Y.3d 965, 848 N.Y.S.2d 33, 878 N.E.2d 617 (2007). By order dated January 28, 2009, the Court of Appeals of the State of New York denied petitioner's application for reconsideration of its October 1, 2007 order. People v. Tineo, 9 N.Y.3d 1039, 852 N.Y.S.2d 25, 881 N.E.2d 1212 (2008).
By order dated December 23, 2008, the Appellate Division denied petitioner's applicationfor a writ of error coram nobis to vacate its June 26, 2007 order on the ground of ineffective assistance of appellate counsel, finding that petitioner had "failed to establish that he was denied the effective assistance of appellate counsel." People v. Tineo, 57 A.D.3d 923, 923, 868 N.Y.S.2d 923 (2d Dept. 2008). On March 30, 2009, the Court of Appeals of the State of New York denied petitioner's application for leave to appeal to that court from the December 23, 2008 order of the Appellate Division. People v. Tineo, 12 N.Y.3d 788, 879 N.Y.S.2d 65, 906 N.E.2d 1099 (2009).
On July 24, 2009, petitioner filed a petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging: (1) that the hearing court erred in denying his motion to suppress his statements to law enforcement officers because (a) the...
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