Linnen v. Poole (689 F. Supp. 2d 501, 2010)

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Pro se petitioner Anthony M. Linnen (“Linnen” or “petitioner”) has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court. Linnen challenges the constitutionality of his state custody pursuant to a judgment convicting him, after a jury trial in Erie County Court of New York State Supreme Court, of one count of second degree (intentional) murder (N.Y. Penal Law § 125.25(1)). The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

1. Events Leading to Petitioner’s Arrest

The conviction here at issue stems from the homicide of sixteen-year-old John Watson, a drug dealer who had a room in the back portion of petitioner’s house at 1203 Kensington Avenue in the City of Buffalo. By agreement with Linnen, Watson conducted his drug-selling business out of Linnen’s house. Watson’s dead body was found on January 22, 1999, on Tariko Place, an alleyway that runs parallel to Kensington Avenue. Tariko Place consists of a network of garages and alleyways connected to each other or separated by fences, making it difficult to traverse from Kensington Avenue (where Linnen’s house was located) to Tariko Place. Indeed, the only way to get from one to the other would be by climbing over a fence or a building. T. 461, 484, 622, 624-28, 639.

Watson was found tied up in a fetal position with a telephone cord; his body was wrapped in a bed sheet and was lying on two squares of cardboard. T. 314-15. He was dressed in the clothing that his father had last seen him wearing on January 18, 1999 (a black “hoody” sweatshirt, a t-shirt, a blue Army jacket, black pants, and Timberland-brand boots). T. 270, 315, 316. There was a piece of paper on the decedent’s body that said, in scrawled handwriting, “BSC, one down, two to go, payback”. A pager and a set of keys were found on the body, but no wallet, identifying documents, or money were recovered. T. 316-18.

The following day, January 23, 1999, Detectives Ortiz, Krawczyk and Masecchia of the Buffalo Police Department went to 1203 Kensington Avenue in response to a message left on the homicide department’s answering machine that a person named “Tony” at that address might know something about the murder of John Watson. Transcript of Suppression Hearing dated June 29, 1999 (“6/29/99 Tr.”) at 5, 18. Petitioner answered the door and spoke with the officers. The police did not issue the Miranda warnings on that date. When asked if he knew why the officers were there, petitioner responded “because of Baby John,” id. at 6, meaning John Watson. Petitioner invited the detectives inside to talk about the investigation, but denied knowing anything about it. Petitioner told the police officers that he had last seen Watson in their apartment and in the company of two women on January 19, 1999, sometime between 7:00 and 8:00 P.M. Id. at 13-14, 16. Linnen mentioned that the way the body was found sounded like the modus operandi of some people from Box Street he had met while he was in prison; they had had told him they would wrap people up and beat them and then dump their bodies. Id. at 8, 16.

Detective Ortiz testified that on January 23rd petitioner was co-operative and was “more than willing to let us do or ask him anything that we wanted” 6/29/99 Tr. at 8. Petitioner never asked them to leave or stated that he did not wish to speak any further with them. Before leaving, the police requested and obtained petitioner’s signature on a consent-to-search form, and then allowed the detectives to go through the apartment. Id. at 9-10; see also Suppression Hearing Exhibit No. 6. Although the officers did not seize anything, Detective Ortiz took note of an assortment of Ramen Noodles in petitioner’s kitchen cupboards, believing them to be of some significance given the autopsy finding that the victim had consumed noodles close in time to his death. 6/29/99 Tr. at 11-12. The detectives left petitioner’s apartment at about 2:15 p.m.

On January 25, 1999, petitioner failed to report to parole. On January 26, Detective Ortiz called defendant’s parole officer to ask about defendant’s history and why he was on parole (a manslaughter conviction involving a female acquaintance). Transcript of Suppression Hearing dated October 27, 1999 (“10/27/99 Tr.”) at 53, 107.

On January 28, 1999, two other detectives from the BPD, Detective Chella and Detective Giardina, went to 1203 Kensington at 5:15 p.m. in continuation of the Watson homicide investigation. The officers did not read the Miranda warnings. Petitioner maintained a cooperative manner, answered questions, and signed a new eonsent-to-search form. Detective Chella told petitioner he did not have to sign the form if he did not want to, but petitioner signed the form without any signs of reservation. Id., 38, 41.

The officers seized some blank lined paper, some paper with handwriting on it, a telephone bill, a pre-test questionnaire for AIDS education, and nine sheets of paper dealing with self-image. 10/27/99 Tr. at 44-45. Detective Chella then asked petitioner if he would accompany the detectives back to police headquarters to provide a statement regarding the last time he had seen the decedent. Petitioner agreed, expressing no hesitation or reservations about doing so. Transcript of Suppression Hearing dated October 19, 1999 (“10/19/99 Tr.”) at 25. Petitioner was not handcuffed. No threats were made to defendant and the only promise made to him was that he would be given a ride back home. 6/29/99 Tr. at 45^16. The officers drove Linnen downtown to police headquarters where they conducted an interview and then took a formal statement. See Suppression Hearing Exhibit No. 3. At no time did petitioner tell the detectives that he no longer wished to speak with them or inquire about an attorney. See 6/29/99 Tr. at 46; 10/19/99 Tr. at 29-30. In fact, petitioner acknowledged at the suppression hearing that he voluntarily gave the police this statement. 10/29/99 Tr. at 20.

Afterwards, the detectives drove petitioner home as promised. 6/29/99 Tr. at 46. Petitioner was still co-operative and consented to letting the detectives look through his house again. When Detective Chella asked the defendant if he could take a blue sheet used as an ironing board cover, petitioner demurred but did allow the officer to cut off a piece of fabric and take that. With petitioner’s permission, the detectives also seized a cream-colored telephone cord. Id. at 48; see also 10/19/99 Tr. at 37-38. The detectives gave Linnen their cards and asked him to call if he heard anything about Watson’s death. 6/29/99 Tr. at 48. Linnen claimed at the suppression hearing that, at the end of that meeting, he told the officers the next time they spoke he wanted to have an attorney with him. 10/29/99 Tr. at 22, 23, 79. The police officers testified that Linnen at no time mentioned having an attorney present at that meeting or any future meetings.

Detective Chella’s next contact with petitioner was on February 3, 1999, when he received a phone call from a frightened and upset Linnen, who said that he had been beaten up by a group of gang members and had spent most of the evening at the hospital emergency room. He told Detective Chella that he had gotten assaulted because the police were following him and telling people that he had something to do with Watson’s death. Detective Chella told petitioner that he was unable to speak with him at the time but agreed to see him the following morning. Petitioner said that he had to report to Parole Officer Humphrey’s office on February 4, at 9:00 A.M., the next morning. Linnen told Detective Chella he could speak with him before or after the parole meeting. 10/19/99 Tr. at 41, 43-44; see also 6/29/99 Tr. at 50.

The following morning, February 4, 1999, Detective Chella telephoned Senior Parole Officer Henry Conforti and asked to be made aware if petitioner showed up for his meeting so that the detective could speak with him. By that point, Detective Chella considered petitioner a suspect in the Watson investigation. 6/29/99 Tr. at 48-49, 51.

Petitioner failed to report for his meeting with Parole Officer Humphrey on February 4th. 10/27/99 Tr. at 110. After making an unsuccessful attempt to locate the petitioner in the area of Colorado and East Ferry Streets, Humphrey returned to his office. Id. at 112. At 12:45 P.M., petitioner telephoned Humphrey from 76 Hedley Street and said that he had not reported because he had been in the hospital and again explained that he was afraid to come in. Id. at 113. Humphrey offered to pick petitioner up in a state vehicle and to bring petitioner in to make his report. Petitioner claimed that Humphrey directed him to stay where he was and told him he would be there to pick him up. When Humphrey and his partner pulled up to 76 Hedley Street and “honked on the horn,” petitioner came out and got in the car. 10/27/99 Tr. at 113. Humphrey stated that petitioner appeared to be happy to see the parole officers and “relieved” to be in the car with them. There was no hesitation on petitioner’s part. Id. at 122. Petitioner acknowledged, in fact, that he voluntarily went back to the parole office with the officers. 10/29/99 Tr. at 39.

On the way there, petitioner told Humphrey that he was “very afraid to be in Buffalo”. 10/27/99 Tr. at 114. According to petitioner, Humphrey told him that he would have to speak with Conforti who was “pissed off’ because petitioner did not show up on time for his parole interview. 10/29/99 Tr. at 40. Petitioner testified that at that point there was “no question in his mind that he was going to be violated”, id., that is, found to have violated the conditions of his parole agreement.

Once at the parole office, petitioner admitted to Humphrey and Senior Parole Officer Conforti that he had been using marijuana and cocaine. 10/27/99 Tr. at 114. Humphrey explained that such allegations, if true, would not necessarily result in a parole violation but would be in the discretion of the parole officers. While Humphrey did not remember discussing with Conforti whether he would file a violation report, he testified he believed that it was “understood” that he would be filing a report for Conforti to review in making his determination as to whether a warrant would be filed. Id. at 50-51, 115-117.

At approximately 2:00 P.M., Conforti called Detective Chella to tell him that petitioner was in the parole office. Chief Riga accompanied the detective to the parole office. Id. at 119; see also 6/29/99 Tr. at 51. They were greeted by Conforti, who told them that petitioner was in an office talking with Parole Officer Humphrey. Detective Chella stated that he walked in and asked petitioner if he would accompany the detectives back to the homicide office. The detective acknowledged that petitioner was “hesitant,” wanting to know the purpose of the interview. 6/29/99 Tr. at 51. The detective explained that they wanted to speak with them about the Watson murder again. Id.

Chief Riga testified that petitioner was not in custody of parole at this time. 10/27/99 Tr. at 4. He further testified that petitioner was not handcuffed, and that he did not recall petitioner ever having requested an attorney or expressing any reservations about going back to the homicide office with the detectives. Id. at 25-26. Parole Officer Humphrey testified that petitioner showed no reluctance about going with the detectives and that he never inquired as to whether he “had to go or about an attorney”. Id. at 120-22.

Although Chief Parole Officer Conforti told Detective Chella that petitioner had violated his parole, the detective was not advised that petitioner was in custody or not free to leave the parole office. 10/19/99 Tr. at 50-51. Conforti testified, “[Fjrom what I did hear, [petitioner] agreed to talk with Detective Sergeant Chella. He went into a room with [the detective] for a couple minutes, then Chella came out and said to me, ‘He said he’d go.’ And I said, ‘Good. Take him away. Don’t lose him.’ ” Id. at 71. Detective Chella understood that to mean he was to call parole when the detectives were done with petitioner. (Id. at 57). According to Detective Chella, if petitioner had said he did not want to go with him to the homicide office, Chella would have left him at the parole office. If, once they got to the homicide office, petitioner had told him that he did not want to talk, the detective would have called parole as instructed, or taken petitioner back to parole. 10/19/99 Tr. at 54-55. Detective Chella also testified that petitioner went voluntarily, expressing no reservations about leaving with the detectives. Detective Chella never heard petitioner inquire about an attorney. 10/19/99 Tr. at 59-60.

Petitioner then accompanied the detectives back to the homicide office where Detective Chella read him his Miranda rights from a card. In response, Linnen stated “I’ll talk to you, man.” Id. at 62. Petitioner later signed the card next to an “X” placed by Chella on the card. 10/19/99 Tr. at 60-61; 6/29/99 Tr. at 53-57. Petitioner claimed that he was told by Detective Chella that the only way to activate his right to an attorney was to sign the card next to the warning which explained that he had such a right. Detective Chella explained that he merely asked petitioner to sign in a blank space, and that the location chosen had nothing to do with the text next to petitioner’s signature. 10/19/99 Tr. at 76; 10/29/99 Tr. at 54-60. The detective further stated that petitioner did not verbally ask for an attorney at this time. 10/19/99 Tr. at 75-76; 6/29/99 Tr. at 61.

Detective Chella spoke with petitioner until 5:06 P.M. During this two and one-half hour interview, petitioner proceeded to make several statements and admissions which implicated him in the death of John Watson. Detective Chella testified that there were no threats or promises made to petitioner to induce him to testify. During the interview petitioner was granted access to the telephone when he wanted it and was given refreshments and cigarettes. According to Detective Chella’s notes and testimony, petitioner became visibly upset during the interview on a number occasions and was given time to compose himself. Eventually the detective asked petitioner if he would reduce his statements to a formal written statement, petitioner refused and, for the first time, requested an attorney. Detective Chella stopped his questioning immediately. 6/29/99 T. at 61-63; 10/19/99 Tr. at 77-89. Two days after the interview, with the aid of notes that he had taken and his memory, Detective Chella prepared a police report which contained the sum and substance of his conversation with the petitioner. Id. at 66-69; Suppression Hearing Exhibit No. 4.

2. Petitioner’s Confession

What follows is a synopsis of petitioner’s oral statement to Detective Chella made over a period of approximately two and one-half hours, memorialized in a 14-page single-spaced type-written statement. See People’s Trial Exhibit 59; see also Suppression Order at 4, Respondent’s Exhibit (“Resp’t Ex.”) at 174. Detective Chella informed petitioner that he would record their conversation by writing it down; there was no equipment in place in the interview room to videotape or audiotape the questioning. T. 364-65. At trial, Detective Chella testified to the substance of Linnen’s oral statements based upon his written notes of the interview. Several minutes after the interrogation began, Detective Ortiz joined Detective Chella, and remained in the room until the interview with petitioner was completed.

Linnen, who had a bachelor’s degree from Canisius College, stated that he was receiving “some psychiatric care for what he termed a “compulsive disorder, motion [sic] not totally developed!.]” T. 365-68. Linnen said he was taking medication (Prozac and Wellbutrin), but had not taken it in a couple of days, and that he was seeing a psychiatrist as well as a counsel- or, Gwen Herbert. T. 365-68. However, Detective Chella testified, petitioner never said that he did not feel well enough to answer their questions, nor did he appear to have any difficulty understanding the detectives; his answers were always responsive and coherent. Id. When petitioner was informed that his psychiatric counselor, Gwen Herbert, had provided some information to the police, he became “rather upset.” T. 368.

Petitioner then brought up a female acquaintance named Gwen Mitchell, an “older woman” with whom he was romantically involved. Petitioner asserted that Mitchell often paid him to have sex with her. T. 369. According to petitioner, Mitchell had gotten mad at him because he was dating other women, and he was afraid of her because she had sons his age who had beat him up in the past. Id.

Focusing Linnen back to the homicide, Detective Chella questioned him as to the last time he had seen Mitchell. Linnen was not sure; at first he said that it was January 19, 1999. T. 371. Linnen then explained that he had seen Gwen Mitchell on January 22 or January 23, 1999. T. 373. She had come to his house with a pint of rum, and they then went back to her house, where they had sexual intercourse and she gave him “sixty dollars for fucking her.” Id. The two went over to Mitchell’s daughter’s house, and she later dropped him of at a McDonald’s restaurant. Asked what he did with the $60, Linnen replied, “ ‘what do you think.’ ” T. 374.

When asked about his last contact with the decedent (to whom Linnen referred at times as “Ali” to Detective Chella), Linnen at first said that it was January 19, 1999, at Linnen’s house on Kensington. T. 375. Two women were there, “Carmen” and “T”. When the decedent came home, he “got mad” because “the young ladies were there” and commented that Linnen “would never change.” T. 376. As a result, Linnen asked Carmen to leave with “T” and come back later. Id.

Linnen asserted that the decedent did not give him any drugs or money, that he did not need the decedent’s money, and that he had $250 that he had received from his sister and from a job.

Watson eventually left petitioner’s house again for a while. Later on the night of January 19, 1999, petitioner started paging the decedent because “he was worried about [the decedent] because he had not shown up back at the apartment.” T. 378. When asked what the decedent had eaten prior to leaving on January 19th, petitioner said that he had some coldcuts and bread in the refrigerator and that decedent had made a sandwich. Detective Chella commented that when the police had been there on January 28, 1999, it did not appear that there was any food in the refrigerator, and Gwen Mitchell, Linnen’s paramour, had told them that she often had to supply him with food. T. 378. Because the autopsy revealed that the decedent had consumed noodles shortly before his death, Detective Chella asked petitioner if he had any “Ramen”-brand noodles at his house, and petitioner replied that he did, in the kitchen cabinet. T. 379.

At that juncture during the police interview, Linnen’s demeanor changed, according to the detectives: Linnen became “a little more aggressive, a little more frustrated!,]” and appeared upset. T. 379. Petitioner then announced, for the first time, that he “often has blackouts” that last for “[d]ays at a time” and that he “can’t remember details.” T. 380. When Detective Chella asked petitioner to give an example of what someone told him he did during these blackouts, petitioner said that he once was told that he had jumped from building to building in a “dangerous” way. T. 381.

Detective Chella testified that petitioner had not made any reference to these lengthy blackouts when the police first talked to petitioner on January 28, 1999. Id. Detective Chella asked petitioner how he could know for sure that he did not kill “Baby John” if he had these blackouts, and petitioner “stated ‘that he just couldn’t[,]’ ‘[t]hat he loved that nigger.’” T. 381.

Petitioner, throughout the interview, commented that he thought of the decedent (“Baby John”) “as like his son.... ” Id. Linnen explained to Detective Chella “that he [petitioner] was trying to steer him [decedent] away from the life that he saw Baby John having of drugs and selling drugs; and that he mirrored Baby John; that he had made mistakes and he was trying to make Baby John not make the same mistakes that he did throughout his life.” T. 377.

After Detective Chella directly confronted petitioner about killing “Baby John,” he gave petitioner “a little time to compose himself’ because petitioner had “become visibly angry[J” T. 382. To try to redirect petitioner’s anger, Detective Chella offered petitioner some refreshments; petitioner asked for a clear soda pop. T. 383. The detectives remained in the room while petitioner drank it.

When it appeared that petitioner had calmed down, Detective Chella commented that the police had received information that the sheet in which the body was found had been given to him by his girlfriend, Gwen Mitchell, on the day of the death, and that with her permission they had obtained the matching sheet. T. 383-84. According to Detective Chella, petitioner “became a little concerned about that” and stated that he had “had that sheet for awhile prior to the death.” T. 384. Petitioner did not ever admit to getting a sheet from Mitchell. T. 386.

Detective Chella advised petitioner that Mitchell had told the police that petitioner had asked her for garbage bags and some rope. T. 384. The detective told petitioner that if these things were true, “he was probably responsible for the death of Mr. Watson[,]” to which petitioner replied that he “had blackouts and he couldn’t remember.” T. 385. Detective Chella noted that petitioner was the last person to see the decedent alive, and the decedent’s body was found 70 yards from petitioner’s house. When he asked petitioner to explain those circumstances, Linnen replied that “he had blackouts” and that Detective Chella “did not know what it was like to have these blackouts.” T. 391.

At this point, Detective Chella testified, petitioner’s demeanor became “a little more down, a little more depressed” and he asked to call his mother in New York City. When told that it would have to go through the homicide department operator because it was long-distance, petitioner asked to make a local call, at which point both detectives left petitioner alone for about ten minutes. T. 393. When they returned, petitioner began talking about how he had written a computer program for drug rehabilitation for the Red Cross, “not as a crackhead, but knowing it,” but they only paid him a “dollar an hour” and they “fucked [him]” and “dumped [him]” because he was “an ex-con.” T. 396. He told Detective Chella, “You don’t know [what it’s like].” Id.

Petitioner then explained that during the week in question he “had been out hustling [for four or five days] and that’s where he had got the money, doing it legally,” apparently by using his computer skills to write menus for restaurants. T. 396. He said he was doing it “[t]o show Baby John that he could [make money] without selling drugs.” Id. According to Detective Chella, petitioner then “started to cry and put his head down and started to mumble some things to himself.” T. 396-97. When petitioner resumed speaking, he said that when he had returned to his apartment after being gone for those several days, “Ali [the decedent] had told him that he [petitioner] had to leave the apartment, that he was taking it over and he [petitioner] had to get out[J” otherwise “they’ll find [petitioner] dropped [sic], junkie, crackhead.” T. 397. Detective Chella testified that petitioner became upset at this point, and picked up a coffee mug that was being used as an ashtray and slammed it on the table. T. 397. Petitioner announced “that he had gave [sic] that nigger more than [him],” and “[a]nything in [petitioner’s] house was [decedent’s].” T. 397.

Petitioner then remarked that “he should have gotten rid of him, Baby John, first because of the way he treated [petitioner],” and that he saw “Baby John as himself and that he was the past coming back to the future to let [Baby John] know what his future looks like.” T. 398. Petitioner related that the decedent then left the house saying, “[W]e’ll see when I get back.” T. 398. The decedent, as he was leaving, kicked out a Jamaican man “who was bugging out too much”. T. 399.

Petitioner was “scared that the boys, [sic] were going to come back and get him.” T. 398. Petitioner said that the decedent had pulled a gun on him once before and to “show him that there was consequences to his actions, he had placed the barrel in his own mouth.” T. 399. When the decedent returned a short time later, they had a conversation in the hallway, apparently with the Jamaican man standing outside the door, still bugging out and ringing the doorbell. T. 400.

Again petitioner brought up the blackouts, and told Detective Chella that he had been high for three or four days, beginning on January 22, 1999, before this last meeting with the decedent. T. 401. Without being questioned or prompted, Detective Chella testified, “He just looked up at me and stated, I think I may have killed him. All the evidence points to it.” T. 402. Petitioner then “started crying” and “put his head down”; his “fists were clenched.” T. 402. Petitioner’s demeanor changed from saddened to angry, and he said that he had not been high on January 22, 1999, but had started getting high on January 18,1999, and remained high for two to four days. T. 402-03. He explained that as a result of being high, “he had blackouts, loss of memory.” T. 403. Petitioner announced, “I loved that boy[,]” meaning the decedent. T. 403.

Detective Chella then turned the conversation back to the last interaction between petitioner and the decedent, asking what Baby John was doing to him. T. 404. Petitioner stated, “[H]e began choking me in my house. Ras [the Jamaican] was gone. I was coming in and out” of consciousness. T. 404-05. He could not believe that Baby John was doing this to him because petitioner had “treated him so fairly, treated him as a son.” T. 405. Petitioner said that “Baby John” was “calling him a crackhead, telling him that he was never going to change!,]” and that he was taking over petitioner’s house. T. 405. Petitioner asked Baby John to “please get off him” and Baby John replied that he “had killed 17 motherfuckers; do you think one more crackhead is going to matter [,]” at which point Baby John “grabbed him in a chokehold and pushed his back up against the wall.” T. 406. Petitioner got up from the table and demonstrated these actions to Detective Chella. T. 406-07. Petitioner told “Baby John that if he did not stop this,” meaning dealing drugs, he “would become like [petitioner].” T. 407. Petitioner related that “Baby John” then kicked him the groin, causing petitioner to go down; as petitioner did so, he pulled out the decedent’s legs from under him, causing him to fall also. T. 407-08. According to petitioner, the decedent was also punching him and telling him that he was going to die. T. 408. Petitioner said that even though he had a bad back and a slipped disk, he was “kicking [the decedent’s] ass”, knocking him down and straddling him. T. 409. Going through petitioner’s mind was the thought that “if this nigger gets up, he tells his friends, they’re going to get me.” T. 409, 410. Then petitioner said that the decedent was “kicking [petitioner's ass” and that it “seemed like a dream.” T. 410. Petitioner was holding onto the decedent “real hard” and “telling him to stop, hold on.” T. 410, 418.

The next thing petitioner said to Detective Chella during the interview was, “I want PC,” meaning protective police custody. T. 411. He was concerned that “the boys would get him in jail.” Id. Petitioner then began asking about the sentencing structures for the various homicide crimes — i.e., murder and manslaughter in the various degrees — and what would he be receiving for this case. T. 411. Petitioner specifically asked “what kind of [prison] time he would get if he was convicted of manslaughter first or murder second.” T. 412. Detective Chella replied that it was too early to tell and that it was the court’s responsibility. T. 412.

At that point, petitioner announced, “I did not intend to kill John Watson.” T. 412. Detective Chella steered the conversation to the means of getting the decedent’s body to Tariko Place. Petitioner did not respond, but asked to make a phone call to his sister. He did so with Detective Chella in the room; he left a message and a Muslim greeting on the answering machine. Detective Chella hung up the phone and asked petitioner to get back to describing the struggle, to which petitioner stated that the decedent was going to kill him, and that he had tried to calm the decedent down. Petitioner stated that the decedent had pulled a gun on him [petitioner] once before. T. 414. Petitioner stated that he had not had sexual relations with the deceased, and that what people were saying about their relationship was untrue. T. 415. Petitioner specifically said that he was not sexually interested in the decedent. Id.

Petitioner told Detective Chella that he “didn’t remember” at what point he knew that “Baby John was dead, that he blacked out, that the deceased was lying there.” T. 416. Petitioner checked to see if the decedent had any money or drugs on him, but he did not. T. 416. If Watson had, petitioner was “going to leave the drugs on him to use ... as a means to have the police sort of get away from [petitioner].” T. 416.

Detective Chella then asked petitioner how he had choked the decedent; he had never disclosed to petitioner that he had an understanding of how the strangulation had occurred. T. 417. Petitioner began by saying that the decedent was facing away from him; petitioner then looked at Detective Chella said, “[Y]ou got his coat don’t you,” and stated that he had used the strings on the decedent’s “hoody” to choke him, as the decedent’s back was to petitioner’s chest. T. 417. Petitioner had not been advised that any clothing had been collected from the decedent’s body. Id.

When asked if he tried to assist the decedent in any way, petitioner said that he did not do mouth-to-mouth resuscitation, but briefly attempted CPR, demonstrating his actions for Detective Chella by cupping his hands and thrusting them up and down on the table in the interview room. T. 418. Petitioner explained that “he was confused and that ... he tried, but he got no response and that there was no one else there and he was high.” T. 419.

Detective Chella could see that petitioner was starting to get a little tired, so he told petitioner that he only had three more questions — “how did the deceased die, how did you tie him up, and how did you get him into the alleyway....” T. 419. Petitioner explained that he put the decedent’s body in an appliance box he had found outside his apartment, that he put the body in the box, and carried it over the snow, and discarded the box. T. 420. Detective Chella asked him who had helped him wrap up the body. Petitioner claimed that he did not recall wrapping up the body. In any event, petitioner would not answer, commenting, “It doesn’t matter” and he “just didn’t want to get anybody else involved.” T. 421. At this point, petitioner announced that he was “going to do 20 years after this.” Id. Petitioner continued by saying “[t]hat he’s been high, that it gets him away from this, that he doesn’t have to deal with this.” T. 422. At that point, he told Detective Chella that he had been high for the previous three weeks. T. 422. He remarked that he did not know that the decedent was sixteen-years-old and that he “thought of him as [petitioner’s] own child, that [the decedent’s] own father didn’t treat him very well and that he [petitioner] tried to be this fatherly image to him.” T. 422. Petitioner commented “that he bought gifts for kids with his money” and “tried to show [the decedent] how he could deal, but still not hurt people with it.” T. 423.

Petitioner then told Detective Chella that the decedent would not give him back the keys to his own “motherfucking house” and that he wanted to “get high every time I remember him” in order to forget. T. 423. Petitioner announced, “I got pissed off when they said there was semen in [the decedent’s] ass. I loved him, not like that.” T. 424. However, petitioner had never been told by the police or any other official that semen had in fact been found in the decedent’s rectum. T. 424.

Detective Chella returned the subject of how the body was wrapped; petitioner would not reply, stating simply, “I wrapped him up, leave it alone.” T. 424-25. When asked if he knew of any paper found on the body, petitioner acknowledged that he had written the note found on the body that said “One down, two to go. I don’t remember the initials.” T. 425. Detective Chella had not disclosed to him what in fact was written on the paper. T. 425.

Detective Chella then asked if petitioner would be willing to give a formal statement, to which petitioner replied that he “wanted to have his lawyer with him.” T. 426. Detective Chella asked who his attorney was, and petitioner replied that the police had to provide an attorney for him. At that time, it was 5:06 p.m.; the interview had begun at 2:25 p.m. T. 426. Detective Chella ceased his questioning immediately. T. 426. Petitioner was crying and asked to use the phone to call his sister. The Detectives then left petitioner alone in the interview room with the door ajar for about five minutes. T. 427.

Detective Chella returned with Chief Riga after about five minutes; Detective Chella told petitioner that he was under arrest. T. 428. At that time, petitioner inquired, this time of Chief Riga, about police protection based upon his fears of what would happen to him in jail, and asked Chief Riga “to have the story low profile.” T. 428. Chief Riga responded that it was public information, and that the press had free access to it. T. 429. Petitioner also stated to Chief Riga, without inducement, “I didn’t mean to kill that boy. I have a breaking point. Sometimes I just snap.” Petitioner then stated, “He [the decedent] tried to take my shit and throw me out of my house.” 10/27/99 Tr. at 6, 8.

Since petitioner seemed upset, Detective Chella did not put handcuffs on him immediately. T. 429. Both Chella and Chief Riga left petitioner alone to smoke for awhile. T. 431. Petitioner was not handcuffed until he was taken down to be booked, a five or ten-minute procedure, after which he was taken to his cell. T. 431. Detective Chella testified that petitioner was never able to provide a specific date on which the death occurred. T. 433. Petitioner’s phone calls to Chella on February 3,1999. T. 434-36.

At no time during the interview did petitioner ask for a phone book to look up attorney phone numbers; he did not indicate that, when he signed the printed Miranda card, that he was requesting a lawyer. T. 436-37. Detective Chella denied telling petitioner that it would take four to five hours to obtain a lawyer for him, or asking petitioner to look at photographs or listen to any tapes. T. 437. Detective Chella was not aware of any videotaping or audiotaping equipment being activated in the interview room; he explained that the recording equipment was actually located in Chief Riga’s office. T. 438.

3. Other Evidence Presented at Petitioner’s Trial

The decedent sold drugs out of petitioner’s house on Kensington. See T. 751, 958, 978, 1067. A number of witnesses testified that they “got high” there. See T. 750, 760, 957-58, 985-87, 1077-78, 1106-08. Some witnesses testified that petitioner was sexually interested in the decedent, but this interested was not reciprocated. Gwen Mitchell, petitioner’s paramour, testified that petitioner told her that the decedent was his lover but later retracted this statement. T. 148.

In his movements prior to his death, it was revealed through testimony that decedent left his father’s house after eating dinner around 7:00 p.m. on Monday, January 18, 1999, and never returned. T. 269, 291. He did not attend school January 19, 1999, through January 22, 1999. T. 1228. Raychell Smith (“Smith”), a schoolmate of the decedent’s, claimed that she saw him alive on January 19, 1999; however, she did not testify at trial. Trial counsel agreed to stipulate that Smith saw the decedent on the morning of January 19, 1999, and again later that evening. At about 8:50 p.m. on January 19th, the decedent received a message on his pager and then departed. T. 1119-20. Smith did not see him again. Damita Love-Jones (“Love-Jones”) testified that she had witnessed disagreements between petitioner and the decedent over how much cocaine decedent was giving him; petitioner believed that the decedent was taking advantage of his kindness. T. 753-54. Love-Jones, who had sex with the decedent in return for being supplied with drugs, paged him at about 2:30 a.m. on January 20, 1999, in order to buy some drugs, but he did not return her call. T. 756.

At about 5 A.M. on Wednesday, January 20, 1999, petitioner called his friend Valerie Hammett and told her that he had paged the decedent all day and that the decedent was “missing.” T. 963. Petitioner told her he had seen Watson on Monday, January 18th, when Love-Jones and her cousin were at his apartment.

On Wednesday evening, Gwen Mitchell saw petitioner staring out of his window; according to Mitchell, he seemed disoriented and asked her for the date and time, and a cigarette. T. 240-41. Twenty minutes later, he came over to her apartment and said that he was being evicted from his apartment and had “other problems.” T. 213, 215. At petitioner’s request, Mitchell gave him a bed sheet, a garbage bag, and some surgical gloves. Petitioner had also asked her for some rope, but she did not have any so petitioner cut the cable cord from her basement. T. 215. Petitioner told Mitchell that he was cleaning up his house and wanted to throw away some old clothes and his couch.

The medical examiner who performed the autopsy testified that in his opinion the decedent probably died between 9:00 A.M. on Tuesday, January 19, 1999, and 9:00 A.M. on Thursday, January 21, 1999. With regard to manner in which Watson died, the medical examiner testified without challenge that he was intentionally killed, T. 1189-1227. The cause of death was strangulation by ligature. T. 1204, 1211, 1218. According to the medical examiner, absent from the decedent’s body were any defensive injuries which would have indicated a struggle between him and his assailant. The decedent did have two abrasions on his skull, which the medical examiner testified were consistent with blunt force injury caused by, for instance, a person’s fists. The medical examiner testified that it would have been “almost impossible” for strangulation to have occurred, given the physical findings, if the strangler had been standing in front of the victim. Thus, the medical examiner concluded that the assailant was standing behind the victim and, if there was no struggle, ten to twenty seconds would have elapsed before the victim lost consciousness, with death following about a minute thereafter. T. 1222-24.

4. Verdict and Sentencing

The trial court instructed the jury to consider whether petitioner’s admissions to the police were freely and voluntarily made after a valid waiver of his Miranda rights. The trial court also instructed the jury on the defense of justification (self-defense) and the defense of extreme emotional disturbance (“the EED defense”). Along with the charged offenses of intentional and depraved indifference murder, the lesser-included offenses of first degree and second degree manslaughter were submitted for the jury’s consideration. Petitioner was convicted of intentional murder and subsequently sentenced to 25 years to life in prison.

5. The Direct Appeal

New counsel represented Linnen on his direct appeal and raised the following arguments: (1) the trial court erred in failing to suppress petitioner’s statements to the police, because, inter alia, he allegedly was taken “in custody” by the parole officers and therefore his New York state constitutional right to counsel had attached before his subsequent interview with the police officers, was not advised of his Miranda rights, and the police ignored his invocation of his right to counsel during the interview; (2) the trial court erred in its handling of two issues that arose in connection with a juror; (3) petitioner “was denied a fair trial contrary to the constitutions of the state of New York and the United States” because (a) the trial court erroneously determined that the prosecution could ask petitioner if he had been previously convicted of first degree manslaughter, without getting into the details of the crime, and whether he was on parole at the time of the decedent’s death, and declined to accept defense counsel’s proposal of a “Sandoval compromise” restricting the prosecution from asking petitioner whether he had been previously convicted of a felony and whether he was on parole at the time of the offense; (b) the trial court erroneously denied the defense motion to reopen the suppression hearing upon the discovery of new evidence disclosable under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881 (N.Y.1961), as statements of prosecution witnesses; (c) trial counsel was ineffective in stipulating as to the testimony of Raychell Smith as to when she had last seen the decedent alive; (d) “[d]efense counsel never delivered what he promised” and failed to retain an expert witness in support of the “extreme emotional disturbance” defense; (4) petitioner’s conviction was against the weight of the evidence; and (5) petitioner’s sentence was harsh and excessive.

The Appellate Division, Fourth Department, unanimously affirmed Linnen’s conviction in a memorandum decision and order. People v. Linnen, 309 A.D.2d 1280, 765 N.Y.S.2d 559 (N.Y.App.Div. 4th Dept. 2003). In the letter application seeking leave to appeal to the New York Court of Appeals, Linnen’s appellate counsel specifically requested review of all of the issues raised in her brief and her client’s pro se supplemental appellate brief. Appellate counsel also included a new claim — that the prosecution did not prove all of the elements of the charges against Linnen beyond a reasonable doubt as required by the due process clause of the United States Constitution, see Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Petitioner’s Appellate Counsel’s Leave Letter (“the Leave Letter”) at 4, Resp’t Ex. B. On January 8, 2004, the New York Court of Appeals denied leave to Appeal. See Certificate Denying Leave, Resp’t Ex. B; People v. Linnen, 1 N.Y.3d 598, 776 N.Y.S.2d 230, 808 N.E.2d 366 (N.Y.2004).

6. Petitioner’s Pro Se Motion to Vacate the Judgment

Linnen’s notice of appeal was filed in 2000. While his direct appeal was pending, he filed a pro se motion to vacate the judgment pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10(l)(b), (c), (d), (f), and (h) on September 25, 2002. See Resp’t Ex. C. The Appellate Division affirmed his conviction on direct appeal in October 2003, and the County Court denied the C.P.L. § 440.10 motion two months later on December 2003.

The grounds asserted in support of the C.P.L. § 440.10 motion were that (1) trial counsel failed “to independently investigate and test the indictment against him; (2) trial counsel tendered misleading and fraudulent advice, leading to petitioner’s decision not to testify at trial; (3) petitioner was denied his “state and federal constitutional rights to an impartial jury, a jury of his choice, and the effective assistance of counsel by his assigned-counsel’s failure to exercise the defendant’s request to remove a statutorily unqualified juror from the jury panel”; (4) the County’s assigned-counsel system, see N.Y. County Law 722, deprived him of his Sixth Amendment right to effective representation due to the inadequate rates paid to assigned criminal defense attorneys, as well as denied him his state and federal constitutional rights to a fair trial, due process, and equal protection of the laws”; (5) the police and the prosecution failed to disclose alleged Brady and Rosario materials “generated, collected and/or recorded by Detectives Ortiz and Chella during their investigation” and therefore his statements to police should have been suppressed; (6) the trial court made “erroneous rulings, misrepresentations of sequential facts within its suppression order, and failures [sic] to follow the rules of criminal procedure and established case law”; (7) petitioner’s statement to the police violated his rights against self-incrimination, the assistance of counsel, and due process of law; (8) the Buffalo Police Department’s failure to use its recording equipment to memorialize petitioner’s interrogation violated police department guidelines and policies deprived the fact-finder at the suppression hearing a “fair and objective means of review of ... the interrogation” thereby depriving petitioner of his constitutional rights to counsel, a fair trial, due process, and the right against self-incrimination; (9) the “prosecutor’s prejudicial summation, failure to seek Molineux/Ventimiglia rulings regarding alleged prior bad acts of the defendant, encouragement of false testimony, failure to truthfully give reasons for not producing a crucial missing witness, and manipulation of photographic evidence” deprived petitioner of his right to a fair trial and due process; and (10) a C.P.L. § 440.10 motion “may be used to correct factual irregularities for appellate and federal review where assigned-counsel has failed, by neglect or misrepresentation, to adequately preserve and protect the record for informed appellate and federal review in violation of the defendant’s rights to due process and the effective assistance of counsel. See Petitioner’s Memorandum of Law in Support of C.P.L. § 440.10 Motion (“the C.P.L. § 440.10 Motion”) at 1-10; see also id. at 11-115, Resp’t Ex. C.

7. Petitioner’s Federal Habeas Petition

Among the attachments to Linnen’s form Petition for a Writ of a Habeas Corpus is document titled “Facts and Constitutional Questions” comprising thirty-three pages of factual background and allegations, (Dkt.# 1), followed by twenty-four (24) “Issues that the Defendant Wishes to Present to this Court for Habeas Corpus Consideration ... which are based on the preceding facts.... ” For ease of reference, the Court has attempted to set forth the main constitutional claim raised by each “Issue” based upon the subject matter of the allegations. There are several “Issues” which address the same basic underlying claim, such as, for instance, the voluntariness of petitioner’s confession. Where feasible, the Court has grouped the “Issues” discussing the same or similar allegations under the same point heading.

ANALYSIS OF THE PETITION

1. Admissibility of Petitioner’s Statements to Police (Petitioner’s Issues 1,10, & 11)

“Issue 1: Whether there is evidence to support the position of the lower courts that the appellant voluntarily and knowingly waived his Miranda rights and whether, as a matter of law, both courts applied the proper standard in determining that the appellant had waived his right to counsel.”

“Issue 10:[T]rial court’s erroneous rulings, misrepresentations of sequential facts within its suppression order, and failure to properly follow the rules of criminal procedure and established case law.”

“Issue 11: Whether the [petitioner] was denied the Federal constitutional right to a fair trial by the introduction, into evidence, of an alleged confession generated in violation of the [petitioner’s Federal constitutional rights against self-incrimination, the assistance of counsel, and due process of law.”

Linnen raised these issues at the trial court level in connection with his suppression motion, in regard to which the trial court conducted a hearing over multiple days. Linnen testified at the hearing, along with the Buffalo police detectives and his parole officers. The suppression hearing testimony has been summarized above in this Decision and Order in the “Factual Background and Procedural History” section. Following the suppression hearing, the trial court issued a decision and order in which it made the following findings of fact: (1) petitioner was not “in custody” during his interviews with his parole officers, Conforti and Humphrey, which occurred prior to his oral admissions to Detective Chella on February 4, 1999; (2) petitioner voluntarily accompanied the police to headquarters on February 4, 1999; (8) petitioner was administered the Miranda warnings by Detective Chella and knowingly, voluntarily, and intelligently waived his right to counsel thereafter; (4) during the interrogation with Detective Chella petitioner made inculpatory statements to Detective Chella before he made any telephone calls; and (5) petitioner was not under the influence of drugs or alcohol during the interrogation. See Memorandum and Order of Erie County Court dated April 19, 2000 Denying Suppression Motion (“Suppression Order”) (Dkt. # 17-3); see also Resp’t Ex. F.

On appeal, appellate counsel argued that the trial court erred in failing to suppress petitioner’s statements to the police on February 4, 1999, because, inter alia, he allegedly was taken “in custody” by the parole officers and therefore his New York state constitutional right to counsel had attached before his subsequent interview with the police officers; he was not advised of his Miranda rights; and the police ignored his invocation of his right to counsel during the interview. The Appellate Division specifically addressed and analyzed Linnen’s arguments concerning the suppression of his statements as follows:

Contrary to the contention of defendant, [the] County Court properly determined that his oral admissions to the police were made after he knowingly and voluntarily waived his Miranda rights (see People v. Denis, 181 A.D.2d 1017, 1017-18, 582 N.Y.S.2d 310, lv. denied 79 N.Y.2d 1048, 584 N.Y.S.2d 1015, 596 N.E.2d 413). The court also properly determined that further admissions made by defendant to the police after he had exercised his right to counsel were not triggered by police conduct and, instead, were spontaneous (see People v. Payne, 233 A.D.2d 787, 788, 650 N.Y.S.2d 833).

People v. Linnen, 309 A.D.2d at 1280, 765 N.Y.S.2d 559. The claims raised in his pro se supplemental brief contending that the Buffalo Police Department violated his constitutional rights by not recording or taping his confession were summarily dismissed as “without merit” later in the same opinion. See id.

For the reasons discussed below, I find that the state courts in Linnen’s case properly applied the law and that their factual findings are supported by the record.

a. Validity of Petitioner’s Waiver of his Miranda Rights

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that “the prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id. at 444, 86 S.Ct. 1602. In the context of custodial interrogation, “unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence.” Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). After a defendant is advised of the Miranda warnings, “[t]he defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. In addition to being knowing and intelligent, a defendant’s waiver of his rights under Miranda must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

After making a determination that an accused has orally answered that he understood and wished to waive his Miranda rights, the Court must “make a case-by-case determination based upon the totality of the circumstances” as to whether the waiver was constitutionally sufficient. United States v. Gaines, 295 F.3d 293, 297-98 (2d Cir.2002) (citing North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979); Tankleff v. Senkowski, 135 F.3d 235, 244-45 (2d Cir.1998)). “[T]he question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ” Butler, 441 U.S. at 374-75, 99 S.Ct. 1755 (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); citations omitted).

“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.” Butler, 441 U.S. at 373, 99 S.Ct. 1755. See also, e.g., United States v. Male Juvenile, 121 F.3d 34 (2d Cir.1997); Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir.1997) (Although undisputed facts showed petitioner “refused to sign the [Miranda ] waiver card” and that an officer “was the only witness to the alleged waiver,” habeas denied.); Nelson v. Walker, 121 F.3d 828, 829-30, 835 (2d Cir.1997) (Denial of habeas petition affirmed and confession admissible where defendant “did not sign or initial any document indicating that he waived his Miranda rights.”); United States v. Boston, 508 F.2d 1171, 1175 (2d Cir.1974) (Affirming district court’s finding of Miranda waiver, as “[i]t is clear, in any event, that a written waiver is not required.”); United States v. Johnson, 289 F.Supp.2d 151, 159-60 (D.Conn.2003) (“The fact that the detectives did not read the Miranda rights aloud to [defendant], or ask him to initial next to each right, is not fatal in this context.... Having received the Miranda warnings, ... [defendant’s] decision to make an admission to [law enforcement], upon reflection, after initially asserting his right not to incriminate himself, constitutes a knowing and intelligent waiver of his rights.”); United States v. Miller, 382 F.Supp.2d 350, 370 (N.D.N.Y.2005); United States v. Egipciaco, 389 F.Supp.2d 520 (S.D.N.Y.2005); United States v. Cooper, 95 Cr. 0031, 1995 WL 469702 at *4 (S.D.N.Y. Aug. 8, 1995) (No Miranda violation although defendant “objected to the officer taking notes of his confession.” “[T]here may be several strategic reasons why a defendant willing to speak to police would still refuse to write out his answers to questions, or to sign a transcript of his answers prepared by the police ....”) (citing Connecticut v. Barrett, 479 U.S. 523, 530 n. 4, 107 S.Ct. 828, 93 L.Ed.2d 920 (1987)).

At the suppression hearing, Detective Chella testified that upon their arrival at police headquarters about 2:20 p.m., he read the Miranda warnings to Linnen from a pre-printed card. According to Chella’s testimony, which the suppression court credited, petitioner was alert and did not appear to be under the influence of illegal drugs or other medications. County Court Order Denying Suppression Motion at p. 4, Resp’t Ex. at 174. Linnen stated that he understood his rights and told Chella, “I’ll talk to you[,] man,” which Chella wrote down verbatim on the preprinted card. Linnen signed the card where Detective Chella placed an “X.” Detective Chella testified that Linnen did not request an attorney at any time. Thus, there does not appear to be a factual dispute over whether the Miranda warnings were administered to petitioner before the interrogation, but rather a dispute about the effect of Linnen’s signature on the preprinted rights card. Linnen, on the other hand, testified that Detective Chella informed him that in order to trigger his right to speak with an attorney, he must place his signature on the pre-printed Miranda rights card. Thus, Linnen argues, that is why he signed his name next to the statement on the card regarding the right to counsel.

Linnen also testified at the suppression hearing that on the night of January 28, 1999, the police accused him of killing the decedent, and he then informed them orally that he would not speak to them any further without an attorney. See 10/29/99 Tr. at 18-25, 79-80. He essentially testified that when he signed his name on the Miranda-rights waiver card, he intentionally put the signature in the space on the card adjacent to the text indicating that one of the Miranda rights was the right to consult with an attorney. According to Linnen, his placement of his signature indicated that he did want to speak with a lawyer and was not waiving that right. Linnen further asserted that the suppression court erred in rejecting his testimony that he asked to use the telephone in order to call a lawyer, that he did use the phone to call lawyers, that he “constantly” asked the police for a lawyer, that “he asked the police to leave him alone. See 10/29/99 Tr. at 21. Linnen argued that had the recording equipment been used, the videotape would have conclusively resolved, in his favor, the factual disputes presented by the suppression hearing testimony of himself and the police officers. Id. Linnen represents that he “is experienced in the law, with a number of years as a law clerk” at various correctional institutions, and based on that experience, it “countermands all common sense” to conclude that he would not ask for a lawyer. Id. at 27.

The credible testimony at the hearing established that Linnen’s waiver was knowing and intelligent. This is especially so given Linnen’s self-professed familiarity with the Miranda decision, see 10/29/99 Tr., at 4-7, 60, and his acknowledgment that he knew his rights, id. at 54, 60, 115, whether or not they were read to him. Not only did Detective Chella orally advise Linnen of his Miranda rights, but Linnen also read his rights from the adviee-ofrights form. Petitioner clearly was above-average intelligence and, moreover, he had past personal experience with being read his rights, and he also stated that he had studied the Miranda decision as an inmate law clerk. His claim that he signed the Miranda warning card only to “activate” his right to an attorney or to prove that he asked for one is dubious. Moreover, a review of the rights warning card (Suppression Hearing Exhibit No. 1) supports Detective Chella’s explanation that the location in which he had directed Linnen to sign was simply a function of the space available on the card.

Ultimately, this sort of inquiry merely presents a credibility issue decided against petitioner at the suppression hearing. The trial court’s findings were based upon an extensive development of the record by means of a suppression hearing involving the testimony of multiple witnesses, including Linnen. As such, the trial court’s factual findings, including those regarding witness credibility, are entitled to a presumption of correctness which petitioner bears the burden of overcoming by clear and convincing evidence. Nelson v. Walker, 121 F.3d 828, 833-34 (2d Cir.1997) (citations omitted); United States v. Gaines, 295 F.3d 293, 298 (2d Cir.2002) (“Assessments of credibility of witnesses are the province of the district court.”) (quoting United States v. Rosa, 11 F.3d 315, 329 (2d Cir.1993)). As noted above, “[a]n express writte