Dearstyne v. Mazzuca (48 F. Supp. 3d 222, 2011)

REPORT AND RECOMMENDATION

BIANCHINI, United States Magistrate Judge.

Table of Contents

I. INTRODUCTION

Petitioner Frank W. Dearstyne (“Dear-styne” or “Petitioner”) is an inmate at the Bare Hill Correctional Facility. In 1991, he was convicted in a New York State court of Attempted Rape in the First Degree, Aggravated Sexual Abuse in the First Degree, and two counts of Endangering the Welfare of a Child. Petitioner contends that his conviction was imposed in violation of his constitutional rights and should therefore be vacated.

The Honorable Norman A. Mordue, Chief United States District Judge, referred this matter to this Court for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) regarding the disposition of Dearstyne’s petition. (Docket No. 67). For the reasons that follow, it is recommended that the petition be granted in part and denied in part.

II. BACKGROUND

The factual and procedural history of this matter is lengthy and complex. The following is a brief summary. Further details are set forth in the discussion of Petitioner’s claim's for relief.

A. Facts

On June 13, 1987, M.O. discovered blood in the underwear of her three-year old daughter, T.O. (TT Vol. 2, at 252). T.O. was examined later that day by her pediatrician, Dr. Theodore Close. (TT Vol. 2, at 258). Following his examination, Dr. Close referred T.O. to the Child Sexual Abuse Clinic at the Albany Medical Center in Albany, New York. (TT Vol. 2, at 391— 392). After examining T.O., the staff at the Albany Medical Center concluded that she had been sexually abused and contacted the Rensselaer Police Department. (TT Vol. 2, at 263).

Detective Frank Petrucci of the Rensse-laer Police Department was assigned to investigate the case. (TT Vol. 2, at 23-24). Based upon interviews with T.O. and her family, Detective Petrucci, working with Patricia Donovan, a New York State Trooper assigned to a special rape task force, concluded that Petitioner, the sixteen-year-old son of T.O.’s babysitter, was the prime suspect. (TT, Vol. 2 at 86).

On June 19, 1987, Detective Petrucci and Trooper Donovan made arrangements to interrogate Petitioner at the state police barracks in Loudonville, New York. (TT, Vol. 2 at 51-52, 88, 130). After speaking with Petitioner’s mother and obtaining her permission to speak with Petitioner, Pe-trucci and Donovan located Petitioner at the home of a family friend and transported him to the police barracks. (TT Vol. 2, at 34, 41).

Petitioner was interrogated at the Lou-donville barracks by Trooper Donovan and Investigator Edmond W. Girtler. As discussed in detail below, the participants offer dramatically different accounts concerning the nature and conduct of the interrogation.

However, it is undisputed that, at the conclusion of the interrogation, Petitioner signed a written confession, in which he made a series of statements admitting sexual contact with T.O. (TT, Vol. 2 at 145, 168). Petitioner was arrested and charged with various sexual crimes involving T.O. (TT, Vol. 2 at 88-91, 122-23, 158).

Subsequent investigations and interviews led the police to conclude that Petitioner had sexually abused two other girls whose parents also used Petitioner’s mother as a babysitter during the spring months of 1987 — C.C., who was two years-old at the time, and her four-year-old sister, E.C.

B. State Court Proceedings

1. Pre-Trial Proceedings

Petitioner was arrested following his interrogation on June 19, 1987, and charged via felony complaint with Rape in the First Degree and two (2) counts of sexual abuse for crimes allegedly committed against T.O. On November 18, 1987, a Rensselaer County Grand Jury returned a ten-count indictment, charging Petitioner with sex-related offenses against the three victims, who were identified in the indictment under their first names, but will be identified in this report and recommendation as “T.O.”, “C.C.” and “E.C.”. Petitioner was arraigned on November 24,1987.

On May 9, 1990, the Rensselaer County Court dismissed the indictment. As discussed in greater detail below, although the grand jury proceedings included videotaped testimony from two of the alleged victims, the prosecution never had that testimony transcribed by a stenographer, as required under § 190.32(6) of the New York Criminal Procedural Law (“CPL”). The court dismissed the indictment due to the prosecution’s failure to comply with CPL § 190.32(6).

On May 18, 1990, Petitioner was re-indicted when a Rensselaer County Grand Jury returned sealed Indictment Number C-8138, charging Petitioner with ten (10) crimes against the three (3) victims. With respect to T.O., Petitioner was charged with Rape in the First Degree, two (2) counts of Sexual Abuse in the First Degree, and three (3) counts of Endangering the Welfare of a Child. With respect to C.C., Petitioner was charged with Aggravated Sexual Abuse and Endangering the Welfare of a Child. With respect to E.C., Petitioner was charged with Sexual Abuse in the First Degree and Endangering the Welfare of a Child. Petitioner was arraigned on the second indictment on May 23,1990.

Prior to trial, Petitioner, through his trial attorney, Eugene Grimmick, Esq., moved to suppress the confession. On May 7, 1991, the Honorable M. Andrew Dwyer, Rensselaer County Court Judge, conducted a Huntley hearing, at which both parties were permitted to call witnesses and introduce evidence. The hearing lasted three (3) days, with the prosecution calling Detective Petrucci, Investigator Donovan, and Investigator Girtler. Petitioner testified in his own behalf and • called both of his parents as witnesses. Following the hearing, both sides submitted lengthy memoranda to the court.

On July 8, 1991, Judge Dwyer issued a Decision and Order denying the suppression motion and finding that there was a “sharp issue of fact” with respect to the voluntariness of the confession, which issue was to be submitted to the jury. (Exhibit J to Petitioner’s Exhibits in Support of Motion to Vacate Judgment).

2. Trial Proceedings

Petitioner’s trial began on July 10, 1991, and lasted for eight (8) days. The prosecution presented testimony from the police investigators, all three of the alleged victims, members of the alleged victims’ families, and testimony from Dr. Close (T.O.’s pediatrician), Carole West (a nurse involved in T.O.’s treatment), and Dr. Richard D. Cimma (E.C.’s pediatrician). Petitioner testified in his own defense and also presented testimony from his parents, his sister, and a school administrator.

At the conclusion of the trial, the jury found Petitioner guilty of Attempted Rape in the First Degree, in violation of New York Penal Law (“PL”) § 110 and § 130.35, with respect to T.O.; Aggravated Sexual Abuse in the First Degree, in violation of PL § 130.70, with respect to C.C.; and two counts of Endangering the Welfare of a Child, in violation of PL § 260.20, with respect to both T.O. and C.C.

Petitioner was acquitted of the charge of Rape in the First Degree with respect to T.O. and was acquitted on all charges with respect to the third victim, E.C. (TT Vol. 3, at 758-766).

On August 14, 1991, Petitioner was sentenced to consecutive, indeterminate terms of four (4) to twelve (12) years for the attempted rape of T.O.; six (6) to eighteen (18) years for the aggravated sexual abuse of C.C., to be served concurrently with a determinate one year term for each of the endangering convictions. (S at 10). Therefore, Petitioner’s total aggregate sentence was ten (10) to thirty (30) years.

3. Appellate Proceedings

Petitioner, represented by Attorney Grimmick, appealed his conviction to the Appellate Division, Third Department, of the New York State Supreme Court. Petitioner asserted seven arguments before the Appellate Division: (1) the indictment should have been dismissed because his statutory speedy trial rights were violated; (2) the forty-nine month delay between Petitioner’s arrest and trial violated his constitutional right to a speedy trial; (3) Petitioner’s confession should have been suppressed; (4) the unsworn testimony of a child-victim was not sufficiently corroborated; (5) the trial court erroneously denied Petitioner’s mistrial motion based on the People’s withholding of Brady material; (6) the prosecutor’s summation comments deprived Petitioner of a fair trial; and (7) Petitioner’s sentence was unduly harsh.

In a ruling issued on May 18, 1995, the Appellate Division withheld its decision on Petitioner’s appeal and remanded the matter to the County Court for a hearing with respect to Petitioner’s speedy trial claim. People v. Dearstyne, 215 A.D.2d 864, 626 N.Y.S.2d 879 (3d Dep’t 1995) (“Dearstyne 7”). On remand, the Honorable Patrick J. McGrath, Rensselaer County Court Judge, conducted a hearing and issued a written Decision and Order, dated April 29, 1996, making detailed findings of fact and determining that Petitioner’s statutory and constitutional speedy trial rights had not been violated.

On appeal from that decision, the Appellate Division affirmed Petitioner’s conviction and sentence. People v. Dearstyne, 230 A.D.2d 953, 646 N.Y.S.2d 1000 (3d Dep’t 1996) ("Dearstyne II”). Petitioner’s application for leave to appeal to the Court of Appeals was denied on December 20, 1996. People v. Dearstyne, 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295 (1996).

On November 26, 1997, Petitioner brought a motion pursuant to CPL § 440.10 and § 440.20 to vacate the judgment of conviction entered against him and to set aside the sentence imposed on the basis of (1) ineffective assistance of trial counsel, (2) prosecutorial misconduct, and (3) other errors of law. On October 13, 1999, Judge McGrath issued a lengthy written decision, denying Petitioner’s motion (the “CPL § 440.10 Order”). Petitioner was granted leave to appeal to the Appellate Division, Third Department.

On May 22, 2000, Petitioner, proceeding pro se, supplemented his previous § 440 motions with a motion for DNA testing in compliance with the procedural requirements of CPL § 440.30. This motion was denied by the County Court on September 22, 2000. Petitioner was also granted leave to appeal this decision.

On October 30, 2000, the Appellate Division granted Petitioner’s motion to consolidate his appeal from the denials of his various post-conviction motions, including the state court’s denial of his CPL § 440 motion and including a denial of his motion for DNA testing. Petitioner was represented by Kevin J. Bauer, Esq. with respect to this consolidated appeal.

The Appellate Division, Third Department unanimously affirmed the denial of Petitioner’s post-conviction motions. People v. Dearstyne, 305 A.D.2d 850, 761 N.Y.S.2d 118 (3d Dep’t 2003) (“Dearstyne III”). Leave to appeal to the New York Court of Appeals was denied on August 26, 2003. People v. Dearstyne, 100 N.Y.2d 593, 766 N.Y.S.2d 169, 798 N.E.2d 353 (N.Y.2003).

On November 26, 2003, Petitioner, proceeding pro se, filed a motion for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. The Appellate Division, Third Department denied his application on January 16, 2004. The Court of Appeals denied leave to appeal on May 10, 2004. People v. Dearstyne, 2 N.Y.3d 798, 781 N.Y.S.2d 297, 814 N.E.2d 469 (N.Y.2004).

C. Federal Habeas Corpus Proceedings

Petitioner, proceeding pro se, commenced this action on May 26, 2004, by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1).

On August 26, 2004, Petitioner filed an Amended Petition after an Order issued by the Honorable Frederick J. Scullin, Jr., United States District Judge, directed him to clarify the dates and dispositions of his state court motions and appellate proceedings. (Docket Nos. 6 & 9). The Amended Petition provides additional factual and procedural background information, but does not actually set forth Petitioner’s claims for habeas relief. It appears that Petitioner intended to incorporate the grounds raised in his Petition in the Amended Petition. Given his pro se status at the time of filing, this Court will deem the grounds raised in the Petition to have been raised in the Amended Petition. Thus, for the sake of clarity, this Court will simply refer to Petitioner’s claims as having been raised in his “Petition” for habeas relief.

Respondent filed a Memorandum of Law in opposition to the Petition on June 15, 2005. (Docket No. 23). Thereafter, on September 12, 2006, James V. O’Gara, Esq. filed a Notice of Appearance on behalf of Petitioner. (Docket No. 49). On November 6, 2006, Attorney O’Gara submitted a forty-five (45) page reply memorandum of law in support of the Petition. (Docket No. 51).

On January 24, 2008, the Honorable Norman A. Mordue, Chief United States District Judge, issued an Order referring the instant case to this Court for a Report and Recommendation. (Docket No. 67).

On July 3, 2008, this Court issued an Order directing the parties to submit supplemental memoranda of law concerning certain issues raised by the Petition. (Docket No. 68). Respondent filed a supplemental memorandum of law (Docket No. 71), affidavit (Docket No. 72), and reply brief (Docket No. 77) in response to this Court’s Order. Petitioner filed a reply memorandum of law in response to this Court’s Order and in further support of the Petition, (attached as Exhibit A to Docket No. 73).

On November 3, 2008, this Court issued an Order directing Respondent to submit a declaration from Dr. Close providing information regarding the disposition and location of certain potential DNA evidence. (Docket No. 78). Respondent complied with the Order and submitted a declaration from Dr. Close on November 26, 2008. (Docket No. 81).

Petitioner moved for leave to submit supplemental briefing to respond to various issues raised by Dr. Close’s declaration. This Court permitted both parties to submit supplemental memoranda and letter briefs. (Docket Nos. 82, 83, 85).

Concerned with the ability of Petitioner to navigate his petition through the complexities of habeas processes, particularly with respect to appropriate choices regarding stays and abeyances, the Court appointed Alex Bunin, Esq., the Federal Defender for the Northern District of New York to represent Petitioner in this matter.

III. DISCUSSION

Federal habeas corpus review of a state court conviction' is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal courts must give substantial deference to a state court determination that has adjudicated a federal constitutional claim “on the merits.” 28 U.S.C. § 2254(d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir.2001). The Second Circuit has stated that an “adjudication on the merits” is a “substantive, rather than a procedural, resolution of a federal claim.” Sellan, 261 F.3d at 313 (quotation omitted). The Second Circuit has also held that even a one-word denial of a petitioner’s claim is sufficient to constitute an “adjudication on the merits” for purposes of AEDPA. Id. at 312-313.

Specifically, AEDPA requires that where a state court has adjudicated the merits of a Petitioner’s federal claim, habe-as corpus relief may not be granted unless the state court’s adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1), (2).

Both AEDPA and its predecessor statute recognize that a presumption of correctness shall apply to state court findings of fact, Whitaker v. Meachum, 123 F.3d 714, 715 n. 1 (2d Cir.1997), and AEDPA requires a Petitioner to rebut that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir.2002). A presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir.2001); Whitaker, 123 F.3d at 715 n. 1.

In Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court defined the phrases “contrary to” and “unreasonable application of’ clearly established federal law. A state court decision is “contrary to clearly established federal law ... if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts.” Id.

A state court decision involves “an unreasonable application of’ Supreme Court case law if it “identifies the correct governing legal principle from [the Court’s] decisions but unreasonably applies that principle to the particular facts of [a] prisoner’s case.” Id.

Under this standard, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. In order to grant the writ there must be “some increment of incorrectness beyond error,” although “the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Matter of Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).

As noted above, Petitioner asserts sixteen (16) grounds in support of his request for habeas relief. Petitioner prepared his Petition pro se and many of the grounds contain multiple claims and arguments. Subsequent to filing this case, Petitioner obtained counsel, who filed a lengthy reply memorandum of law (in the nature of a Traverse), which addressed some, but not all, of the claims and arguments raised in the pro se Petition. This Court will discuss each ground for habeas relief in turn, along with the claims and arguments raised in connection with each ground.

A. Ground One — Speedy Trial

In his first claim for habeas relief, Petitioner argues that he was denied his constitutional right to a speedy trial by virtue of the forty-nine (49) month delay between his arrest and trial. During that 49-month period, he remained out of custody on bail. Petitioner further contends that his trial counsel was ineffective because he failed to invoke the New York State Due Process Clause in support of his motion to dismiss the indictment on speedy trial grounds.

1. State Court Proceedings

As noted above, Petitioner was arrested on June 19, 1987, and charged via felony complaint with Rape in the First Degree and two (2) counts of sexual abuse for crimes allegedly committed against T.O. On November 18, 1987, a Rensselaer County Grand Jury returned a ten (10) count indictment, charging Petitioner with sex-related offenses involving T.O., C.C., and E.C. Petitioner was arraigned on November 24, 1987, and the prosecution declared its readiness for trial.

On January 24, 1988, Petitioner, through counsel, filed an omnibus motion seeking, inter alia, an inspection of the grand jury minutes and dismissal of the indictment due to alleged evidentiary insufficiency. The prosecution agreed to allow the County Court to conduct an in camera inspection of the grand jury minutes and delivered the minutes to the County Court on or about March 9,1988.

Although the grand jury proceedings included videotaped testimony from C.C. and E.C., the prosecution did not provide the County Court with the videotape of that testimony for its in camera inspection, apparently in accordance with its standard practice at the time. In fact, the videotaped testimony, which had not been transcribed by the grand jury stenographer, was not provided to the County Court or to defense counsel until March of 1990, nearly two years later.

Petitioner’s counsel thereafter moved to dismiss the indictment pursuant to § 190.32(6) of the New York Criminal Procedure Law, which requires that “[wjhen a videotape is introduced into evidence and played in the grand jury, the grand jury stenographer shall record the examination in the same manner as if the witness had testified in person.” The County Court granted the motion in a decision dated May 4, 1990, and dismissed the indictment based on the prosecution’s failure to comply with CPL § 190.32(6).

On May 18, 1990, Petitioner was re-indicted when a Rensselaer County Grand Jury returned sealed Indictment Number C-8138, charging ten (10) sexual abuse crimes involving the three alleged victims. Petitioner was arraigned on the second indictment on May 23,1990, and the prosecution declared its readiness for trial.

On July 18, 1990, Petitioner filed an omnibus motion, which included a request for dismissal of the indictment and in camera inspection of the grand jury minutes. The prosecution consented to such an inspection and provided the minutes to the ' court on September 27,1990. On that same date, the County Court issued an Order denying Petitioner’s motion to dismiss the indictment.

On July 9, 1991, on the eve of jury selection, Petitioner, through counsel, moved for dismissal of the indictment on speedy trial grounds, citing violations of Petitioner’s statutory and constitutional rights to a speedy trial. The trial court denied the motion and the case proceeded to trial. As noted above, Petitioner was convicted with respect to the majority of the charges.

Petitioner raised several claims on direct appeal, including the claim that the forty-nine (49) month delay between the filing of the criminal complaints and start of the trial violated his statutory and constitutional right to a speedy trial.

Section 30.30 of the New York Criminal Procedure Law provides that the prosecution must be ready for trial within six (6) months of the “commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.” CPL § 30.30(l)(a).

In the present case, on direct appeal, the Appellate Division concluded that “the record [did] not provide an adequate basis to determine if, in view of all of the cireum-stances, the delay ... was unreasonable.” Dearstyne I, 626 N.Y.S.2d at 881. Accordingly, the Appellate Division remanded the case to County Court for a hearing and reconsideration of Petitioner’s speedy trial motion.

On remand, the Honorable Patrick J. McGrath, Rensselaer County Court Judge, conducted an evidentiary hearing and issued a written Decision and Order, dated April 29, 1996, making detailed findings of fact and determining that Petitioner’s statutory and constitutional speedy trial rights had not been violated.

The matter was then considered again by the Appellate Division, which affirmed Judge McGrath. The Appellate Division held that because “the People’s pre-readiness delay did not exceed the statutory six-month period, the issue of whether defendant’s statutory right to a speedy trial was violated turns on whether any post-readiness delay is chargeable to the People.” Dearstyne II, 646 N.Y.S.2d at 1003.

Petitioner argued, inter alia, that a post-readiness delay of twenty-seven (27) months should have been charged to the prosecution because of the delay in providing the videotapes of the victims’ testimony to the County Court. The Appellate Division rejected this argument, shifting primary responsibility for the delay to the County Court by noting that “County Court was aware of the existence of these videotapes on March 9, 1988 and that they were being retained by the District Attorney.” Id. The appeals court thus ruled that County Court’s failure to obtain the videotapes prior to March of 1990 “cannot be charged to the People since CPL 30.30 addresses prosecutorial readiness, not court readiness.” Id.

The Appellate Division further concluded that, while certain pre- and post-readiness delays were attributable to the prosecution, the total delay chargeable to the People did not exceed six months and, as such, “County Court’s denial of defendant’s statutory speedy trial motion was proper.” Id. at 1004.

With regard to Petitioner’s constitutional speedy trial claim, the Appellate Division held that the overall forty-nine (49) month delay was “presumptively prejudicial.” Id. However, the Appellate Division concluded that “the reason for the delay ... appears to be attributable to County Court’s inattentiveness to this matter despite the People’s repeated requests to set it down for trial.” Id.

The Appellate Division further noted that Petitioner did not assert his speedy trial right until April of 1990, nearly three years after his arrest, which signified that “he did not consider the deprivation of his right to be serious.” Id. In light of Petitioner’s delay in asserting his speedy trial claim and the fact that the delay could not “be attributed to the bad faith or negligence of the People,” the Appellate Division held that Petitioner’s “constitutional right to a speedy trial was not abridged.” Id.

Petitioner’s application for leave to appeal the Appellate Division’s decision to the Court of Appeals was denied on December 20,1996.

2. Habeas Review

a. State Law Claim

Section 30.30 of the CPL requires the prosecution to be ready for trial within a specified period of time. It is well-settled that a claimed violation of this state law provision does not raise a federal constitutional claim and is therefore not cognizable on habeas review. See, e.g., Gibrino v. Attorney Gen’l of the State of N.Y., 965 F.Supp. 489, 491-492 (S.D.N.Y.1997) (denying habeas relief and noting that “Section 30.30 [of the New York Criminal Procedure Law] is a statutory time in which the People of New York must be ready for trial; Section 30.30 is not, as such, a statutory embodiment of the constitutional guarantee to a speedy trial.”); Rodriguez v. Miller, No. 96 Civ. 4723(HB), 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] C.P.L. § 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition.”); Jackson v. McClellan, No. 92 Civ. 7217(JFK), 1994 WL 75042, at *2 (S.D.N.Y. Mar. 4, 1994) (holding that petitioner failed to fairly present constitutional speedy trial issue to state court where petitioner argued “entirely in terms of New York Statutory law [C.P.L. § 30.30]”).

Accordingly, to the extent that Petitioner’s claim herein is based upon the assertion that the state courts misapplied CPL § 30.30, the claim fails to present a federal constitutional question and Petitioner is not entitled to habeas relief on that basis.

b. Federal Constitutional Claim

The Sixth Amendment to the U.S. Constitution provides, in pertinent part, that a criminal defendant is entitled to “a speedy and public trial.... ” When considering speedy trial claims under the Constitution, courts examine four factors: (1) the length of the delay, (2) the reason for the delay, (3) the timeliness of the defendant’s assertion of his right, and (4) the prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972).

The Supreme Court explained the first of the Barker factors, the length of the delay, serves as a “threshold inquiry.” By showing that the length of the delay is “presumptively prejudicial,” the defendant triggers an analysis of the remaining factors. Doggett v. United States, 505 U.S. 647, 651-52, 112 S.Ct. 2686, 2690-91, 120 L.Ed.2d 520 (1992) (citing Barker, 407 U.S. at 530-31, 92 S.Ct. 2182). The length of the delay may then be considered in connection with the remaining factors of the speedy trial inquiry. Id. at 652, 112 S.Ct. 2686.

The Second Circuit has noted that there is a “general consensus that a delay of over eight months meets this standard [of presumptive prejudice], while a delay of less than five months does not.” United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir.1992) (citing Gregory P.N. Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)), see also United States v. Solomon, No. 95 Cr. 154, 1996 WL 399814, at *4 (S.D.N.Y. July 16, 1996) (concluding that a twenty-month delay between indictment and arrest is sufficient to trigger judicial review because it is presumptively prejudicial, but is not uncommonly long).

In the present case, this Court has no difficulty concluding that the forty-nine (49)-month delay is presumptively prejudicial. Accordingly, consideration of the remaining Barker factors is necessary.

i. Reason for the Delay

Under the Supreme Court’s decision in Doggett, when determining the reason for the delay the court asks “whether the government or the criminal defendant is more to blame for the delay.” 505 U.S. at 651, 112 S.Ct. 2686. “The court’s determination of whether the Government has made sufficient efforts to satisfy the ‘due diligence’ requirement is ‘fact-specific.’ ” United States v. Perez-Cestero, 737 F.Supp. 752, 763 (S.D.N.Y.1990) (citing Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir.1988)).

In the present case, the state courts concluded, following an evidentiary hearing, that a significant portion of the delay was attributable to “inattentiveness” on the part of the County Court, rather than any bad faith or negligence on the part of the prosecution. Dearstyne II, 646 N.Y.S.2d at 1004. In this regard, both Judge McGrath and the Appellate Division noted the prosecution’s repeated and documented efforts urging the trial court to set the matter down for trial, which were apparently unsuccessful because of the court’s apparent inattentiveness to the case. These factual findings by the state courts are entitled to a presumption of correctness on habeas review. 28 U.S.C. § 2254(e)(1); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir.2001).

In light of the presumption and given the absence of evidence to the contrary, this Court finds that the state court’s conclusion that the prosecution was not responsible for a large portion of the delay did not involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court; nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.

ii. Petitioner’s Delay in Asserting Claim

The fact that a defendant failed to demand a speedy trial does not per se bar the defendant from raising a speedy trial claim at a later date. See Rayborn, 858 F.2d at 92 (citing Barker, 407 U.S. at 528, 92 S.Ct. 2182). However, “the Supreme Court recognized that although failure to assert the right does not act as a waiver, such failure will make it difficult for a defendant to assert his right successfully at some later point in time.” Rayborn, 858 F.2d at 92.

In Barker, the Supreme Court determined that the defendant’s speedy trial right had not been violated because the record established that the defendant “did not want a speedy trial.” See id. (quoting Barker, 407 U.S. at 534, 92 S.Ct. 2182; see also United States v. Schreiber, 535 F.Supp. 1359, 1363 (S.D.N.Y.1982) (“The speedy trial requirements should not operate to reward a recalcitrant and reluctant defendant.”)).

“In criminal cases where a speedy trial claim is raised, both the conduct of the government and the conduct of the defendant are to be weighed, ... and when it is manifestly apparent that a defendant has no serious interest in the speedy prosecution of the charges against him, a court need not ignore the defendant’s fugitivity or recalcitrance in determining whether his sixth amendment rights have been violated.” Rayborn, 858 F.2d at 92. (emphasis in original) (citing Barker, 407 U.S. at 530, 92 S.Ct. 2182).

There is no dispute that Petitioner waited a substantial period of time before asserting his speedy trial rights. This delay, while not dispositive, weighs significantly in favor of a finding that Petitioner’s speedy trial rights were not violated. United States v. Fasanaro, 471 F.2d 717, 718 (2d Cir.1973); see also United States v. Vasquez, 918 F.2d 329, 338 (2d Cir.1990) (finding that the third Barker factor “weighted] heavily” against petitioners where they “waited roughly 22 months before advancing their speedy trial claim,” which “hardly render[ed] plausible their contention that an expeditious resolution of their cases was a matter of pressing constitutional importance for them”); United States v. McGrath, 622 F.2d 36, 41 (2d Cir.1980) (finding that “third [Barker ] factor weigh[ed] against [petitioners who] waited until immediately before trial to file their motion to dismiss on speedy trial grounds”); United States v. Lane, 561 F.2d 1075 (2d Cir.1977) (finding that petitioner’s “eve of trial” speedy trial motion was “indicative of an interest in having the indictment dismissed, rather than of an interest in expediting the proceedings”); Burress v. Henderson, 814 F.Supp. 313, 322 (W.D.N.Y.1993) (holding that petitioner’s delay in assertion of right until commencement of trial was not “the type of ‘aggressive’ assertion of speedy trial rights necessary to warrant the relief sought”),

iii. Lack of Prejudice

Potential prejudice to the defendant is the last of the Barker factors. The presumption of prejudice that arises with a long delay must be analyzed in connection with the reason for the delay. See Doggett, 505 U.S. at 655, 112 S.Ct. 2686.

“[I]n the absence of particular prejudice, ‘presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria ... it is part of the mix of relevant facts.’ ” United States v. Solomon, No. 95 Cr. 154(LAP), 1996 WL 399814, at *5 (S.D.N.Y. July 16, 1996) (quoting Doggett, 505 U.S. at 655, 112 S.Ct. 2686).

When analyzing the reason for delay, “Doggett noted that government negligence is less prejudicial than deliberate delay and explained that ‘the weight we assign to official negligence compounds over time as the presumption of evidentia-ry prejudice grows.’ ” United States v. Ramos, 420 F.Supp.2d 241, 245-248 (S.D.N.Y.2006) (quoting Doggett, 505 U.S. at 657, 112 S.Ct. 2686). “In other words, the longer [the] period of delay that is attributable to the government, the more important the presumption of prejudice.” Ramos, 420 F.Supp.2d at 248.

Furthermore, the Second Circuit has explained that “[a]lthough ‘a showing of prejudice is not a prerequisite to finding a sixth amendment violation, courts generally have been reluctant to find a [constitutional] speedy trial violation in the absence of genuine prejudice.’ ” United States v. Jones, 129 F.3d 718, 724 (2d Cir.1997) (quoting Rayborn v. Scully, 858 F.2d 84, 94 (2d Cir.1988)).

Petitioner does not articulate any particular prejudice arising from the delay or explain how the delay even arguably affected his ability to present a defense. Cf. United States v. Blanco, 861 F.2d 773, 780 (2d Cir.1988) (“[Sjince delay can just as easily hurt the government’s case, [petitioner’s] general claim that the delay impaired her defense also lacks force.”); Rayborn, 858 F.2d at 94 (“[C]ourts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice.”); Dunavin v. Leonardo, No. 95-CV-296, 1997 WL 151771, at *3 (N.D.N.Y. Mar. 31, 1997) (“In the absence of a showing of prejudice, courts generally will not find a speedy trial violation unless all of the remaining Barker factors weigh heavily in favor of the appellant.”).

The fact that the prosecution continually urged the court to set the matter down for trial, while Petitioner rested on his speedy trial rights, is the best evidence that both parties considered the passage of time and the concomitant fading of memories harmful to the prosecution’s case and helpful to the defense.

Moreover, there is no -allegation in the Petition that Petitioner was incarcerated during the period of delay and the record indicates that Petitioner was released on bail pending trial. (TT Vol. 1, Arraignment, at p. 6-7).

In addition, as noted above, the -fact that the bulk of the delay is not attributable to any bad faith on the part of the prosecution renders the presumption of prejudice less important. Cf. Lane, 561 F.2d at 1079 (finding no speedy trial violation because, inter alia, “[w]hile the record here contained] some rather long unexplained delays, there [wa]s no indication that these [we]re attributable either to deliberate procrastination or even negligent inaction on the part of the Government”).

Although this Court certainly shares the sentiment expressed by the Appellate Division that the approximately four (4) year delay cannot be “condone[d],” the mere fact of such a delay does not, under the circumstances, establish a violation of Petitioner’s constitutional speedy trial right. See Barker, 407 U.S. at 533-34, 92 S.Ct. 2182 (holding that delay of over five years did not violate right to speedy trial); Rayborn, 858 F.2d 84, 89 (2d Cir.1988) (delay of over seven years); Lane, 561 F.2d at 1078 (delay of over four and one-half years).

In sum, this Court finds that Petitioner has failed to establish that the Appellate Division’s decision, which discussed and analyzed the Barker factors, was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

3. Ineffective Assistance of Trial Counsel

Petitioner also argues that his trial counsel was ineffective for failing to “utilize” the due process clause of the New York State Constitution in support of his speedy trial claim. This argument was originally advanced in Petitioner’s CPL § 440 motions, which were denied by Judge McGrath in a Decision and Order dated October 13, 1999. With regard to this particular ineffective assistance of counsel argument, Judge McGrath noted that “both state and federal constitutional issues were considered at a hearing pursuant to CPL §§ 30.20 and 30.30, and in a decision by this court dated April 29, 1996.” (CPL § 440.10 Order, October 13, 1999, at p. 12).

When considering Petitioner’s ineffective assistance of counsel claims as part of a consolidated appeal, the Appellate Division held that “even assuming that defendant’s claims of ineffective assistance of counsel are not based on facts appearing in the record and could not have been raised in a prior appeal, ... his claims are either moot, unsupported by sworn allegations of fact or meritless.” Dearstyne III, 761 N.Y.S.2d at 121.

To prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), a habeas petitioner must satisfy a two-part test. First, the petitioner must demonstrate that counsel’s performance was so deficient that counsel was not functioning as “counsel” within the meaning of the Sixth Amendment to the Constitution. Id. at 688, 104 S.Ct. 2052. In other words, a petitioner must show that his attorney’s performance “fell below an objective standard of reasonableness.” Id.

Second, the petitioner must show that counsel’s deficient performance prejudiced him. Id. at 694, 104 S.Ct. 2052. To establish the “prejudice” prong of the Strickland test, a petitioner must show that a “reasonable probability” exists that, but for counsel’s error, the outcome of the trial would have been different. Id. at 694, 104 S.Ct. 2052. The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel’s performance was inadequate. “[TJhere is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697, 104 S.Ct. 2052.

In the present case, Petitioner has failed to show that the Appellate Division’s decision with regard to this ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of the Strickland standard; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

First, it appears that Attorney Grim-mick did, in fact, assert Petitioner’s state constitutional speedy trial right. In his oral application before the trial court, Attorney Grimmick argued that the delay raised “constitutional speedy trial concerns.” (Transcript of July 9, 1991 proceedings, at p. 2). Although he did not specifically reference the New York State Constitution, Attorney Grimmick never expressly limited his argument to the federal constitution. Further, the record indicates that Grimmick’s written motion to dismiss the indictment noted that Petitioner’s right to a speedy trial was “guaranteed by statute ... [and] by state doctrines of due process.”

Second, even assuming arguendo that Attorney Grimmick either failed to raise the New York State Due Process Clause or failed to properly emphasize that clause in support of his speedy trial arguments, Petitioner has failed to satisfy the prejudice prong under Strickland because he has not established any reasonable likelihood that the motion would have been granted if the New York Due Process claim had been raised and/or more strongly emphasized.

Although the New York State Constitution does not contain a specific “speedy trial” clause, Article 1, § 6 of the State Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” The New York Court of Appeals has held that an “unreasonable delay” in commencing the prosecution of a defendant may constitute a violation of due process under Article 1, § 6. See People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17, 376 N.E.2d 179 (N.Y.1978).

However, Petitioner has not provided any support for the suggestion that a motion to dismiss based primarily upon state due process grounds would have succeeded. The Singer line of cases relates to delays occurring prior to the commencement of the criminal action. The delays in the present case occurred after the filing of an accusatory instrument, ie., the indictment. See generally Erdheim v. Greiner, 22 F.Supp.2d 291, 296 (S.D.N.Y.1998) (discussing Singer and related cases). There was no issue in this case concerning pre-indictment delay. Indeed, the police arrested Petitioner almost immediately following his written confession.

Accordingly, given the lack of unreasonable pre-commencement delay and the findings of the state courts regarding the reasons for the post-commencement delay, no reasonable probability exists that a motion to dismiss the indictment based upon state constitutional due process ground would have succeeded. This Court recommends finding that Petitioner is not entitled to habeas relief on this basis.

B. Ground Two — Admission of Petitioner’s Statement to Police

Petitioner contends that his constitutional rights were violated by the trial court’s denial of a motion to suppress his written statement to the police. Petitioner argues that the statement was procured in violation of his constitutional rights and should accordingly have been suppressed.

1. Factual Background

In early June 1987, Detective Petrucci of the Rensselaer Police Department, working with New York State Trooper Patricia Donovan, identified Petitioner as the prime suspect in the sexual abuse of T.O. (TT Vol. 2, at 23-24, 86).

On June 19, 1987, Petrucci and Donovan made arrangements to interrogate Petitioner at the state police barracks in Lou-donville, New York. (TT Vol. 2, at 51-52, 88, 130). They traveled in plain clothes and unmarked cars to Petitioner’s home. (TT Vol. 2, at 32). After identifying themselves to Petitioner’s mother, Detective Petrucci asked for permission to speak with Petitioner, telling Mrs. Dearstyne that she had nothing to worry about and that her son was not in trouble. (TT Vol. 2, at 51, 122, 123). Mrs. Dearstyne said that the police could speak with her son, but explained that he was at the home of a friend (the “Blauers”). (TT Vol. 2, at 34). Petrucci and Donovan did not tell Mrs. Dearstyne that they intended to take her son to the state police barracks in Loudon-ville for interrogation and did not explain that he was the target of their investigation. (TT Vol. 2, at 51, 58).

Detective Petrucei and Investigator Donovan traveled to the Blauers’ residence, where Petitioner was swimming with Mends. (TT Vol. 2, at 36-37). At the request of the officers, Petitioner was summoned and approached Petrucei and Donovan still wet and dripping from the pool. (TT Vol. 2, at 37). The officers explained that they were conducting an investigation and wanted to speak with Petitioner, who agreed to be interviewed. (TT Vol. 2, at 38). Petitioner changed his clothes and rode with Detective Petrucei to the state police barracks in Loudonville, while Donovan followed in another vehicle. (TT Vol. 2, at 41).

The officers brought Petitioner into the barracks through a back entrance that was typically reserved for state troopers. (TT Vol. 2, at 41, 60). Although troopers were required to place the name of any non-trooper visiting the barracks on a “blotter,” Donovan did not follow this procedure when Petitioner was brought in for questioning. (TT Vol. 2, at 107).

Petitioner was interrogated by Trooper Donovan and Investigator Edmond W. Girtler. The testimony of the witnesses differed sharply regarding the nature and conduct of the interrogation. The following is a summary of the testimony given by the prosecution witnesses:

Investigator Girtler advised Petitioner of his Miranda rights and Petitioner signed a written acknowledgment indicating that he understood his rights. (TT Vol. 2, at 100-102, 142-43). Girtler told Petitioner that one of the children that his mother provided day care for had made an allegation against him. (TT Vol. 2, at 141). For approximately thirty (30) minutes, Girtler engaged in general conversation with Petitioner about sexual intercourse, masturbation, and sexual fantasies, until he asked Petitioner if he had ever engaged in sexual conduct with the children for whom his mother babysat. (TT Vol. 2, at 168, 177). Petitioner shrugged and after further questioning made a series of statements admitting sexual contact with a three-year girl named T.O. (TT Vol. 2, at 145, 168). Investigator Girtler then took a written statement from Petitioner. (TT Vol. 2, at 180). The statement was signed by Petitioner and Investigator Girtler and notarized by Trooper Donovan. (TT Vol. 2, at 161).

Petitioner’s account of the interrogation was dramatically different and may be summarized as follows:

Detective Petrucei and Investigator Donovan took Petitioner into an interrogation room and told him he was being charged with rape. (H at 189). Petitioner denied committing any crime. (H at 189-190). Petrucei told Petitioner that they had evidence of the crime and that a rape “specialist” was being brought in. (H at 190). Investigator Girtler arrived shortly thereafter, holding a large yellow envelope. (H at 191). Girtler told Petitioner that the envelope contained “all the evidence to put you away for 25 years.” (H at 191). Petitioner continued to deny committing any crime, which angered Girt-ler, who slammed his fist onto the desk. (H at 191). Petitioner asked to make a telephone call and was told to “shut up” and sit down. (H at 191). Investigator Girtler continued to press the issue and Petitioner continued denying any criminal conduct, until Investigator Girtler left the room in anger, leaving Petitioner alone with Detective Petrucei. (H at 192).

Petitioner was Mghtened and began to cry. (H at 192). Petrucei told him that he would receive only probation if he confessed. (H at 192). Detective Petrucei then told Petitioner: “When you are in jail, you are going to have big guys who are going to come make you his [sic] baby. Bring a supply of vasoline [sic], and everything.” (H at 192). Investigator Girtler then reentered the room and continued to question Petitioner, who repeatedly denied any wrongdoing. After a time, Petitioner indicated that he did not commit the crime but told Investigator Girtler that “out of your satisfaction [sic], I will say ‘yes’ to it.” (H at 194-95). Investigator Girtler then read several allegations to Petitioner from a written statement. When Petitioner denied the allegations, Investigator Girtler told him they could prove that he had done it. Petitioner eventually relented and signed the statement, believing he would receive probation by doing so. (H at 195-97).

There is no dispute that after signing the statement, Petitioner was arrested and charged with various sexual crimes involving T.O. (TT at 88-91,122-23,158). •

2. State Court Proceedings

Prior to trial, Petitioner moved to suppress his statement. The trial court conducted a Huntley hearing, at which both parties were permitted to call witnesses and introduce evidence. The hearing lasted three days, with the prosecution calling Detective Petrucci, Investigator Donovan, and Investigator Girtler. Petitioner testified in his own behalf and called both of his parents as witnesses.

On July 8, 1991, the trial court issued a Decision and Order denying the suppression motion and finding simply that there was a “sharp issue of fact” with respect to the voluntariness of the statement. The trial judge declined to rule on whether the statement was voluntary, directing that the statement was to be submitted to the jury to determine voluntariness in the first instance. (Exhibit J to Petitioner’s Exhibits in Support of Motion to Vacate Judgment).

At trial, the prosecution called Detective Petrucci, Investigator Donovan, and Investigator Girtler as witnesses. The signed statement was introduced into evidence and read into the record. (TT, Vol. 2 at 157-161). As noted above, the statement indicated that Petitioner understood his constitutional rights, but wanted to waive those rights and make a statement. The written statement contained several explicit admissions regarding sexual contact between Petitioner and T.O.

During the defense case, Petitioner called his parents and sister, Cindy Dear-styne, to testify in support of his claim that the police investigators deliberately isolated him from his family to coerce him into making a false confession. Petitioner also denied the admissions set forth in the statement, repeating his claim from the Huntley hearing that he confessed as a result of coercion.

Following his conviction, Petitioner challenged the trial court’s refusal to suppress the statement on direct appeal. The Appellate Division discussed the facts surrounding the interrogation, as established through the Huntley hearing and trial testimony, and concluded that “these facts do not warrant suppression of defendant’s statement for they do not establish that his isolation resulted from official deception or trickery.” Dearstyne II, 646 N.Y.S.2d at 1005.

Specifically, the appeals court noted that “because the defendant was legally an adult, there was no requirement that his family be present during the questioning.” Id. (This Court notes that at the time of the interrogation, Dearstyne was only sixteen-years-old.) In addition, the appeals court found that suppression was not warranted because “the police had obtained the consent of defendant’s mother to speak to him and there is no indication that his father made any effort to contact an attorney to represent him.” Id} The Court of Appeals denied Petitioner’s request for leave to appeal.

Petitioner raised several challenges concerning the admission of his statement in support of his pro se CPL § 440 motions. Specifically, Petitioner argued that the statement was . taken in violation of his Miranda rights, that the trial court’s Huntley decision failed to comply with CPL § 710.60(6), and that the statement was involuntary, unreliable, and uncorroborated.

As noted above, Judge McGrath denied Petitioner’s § 440 motion in a Decision and Order dated October 13, 1999. Judge McGrath rejected Petitioner’s arguments concerning the admission of his statement on several procedural grounds. First, he found that Petitioner’s claim that he was deliberately isolated from his parents had been decided by the Appellate Division and was thus barred by CPL § 440.10(2)(a), which provides for the denial of claims previously decided on the merits on direct appeal.

Second, to the extent that Petitioner was raising claims regarding his statement that were not raised on direct appeal, Judge McGrath denied those claims pursuant to CPL § 440.10(2)(c), which provides for the denial of claims that could reasonably have been raised on direct appeal, but were not. Lastly, Judge McGrath stated that even if consideration of Petitioner’s claims was not otherwise procedurally barred, he would exercise his discretion to deny the claims under CPL § 440.10(3)(b), which provides for the discretionary denial of claims “previously determined on the merits upon a prior motion or proceeding ..., other than an appeal from the judgment.” CPL § 440 Order, October 13, 1999, at p. 6.

As part of the consolidated appeal, the Appellate Division did not discuss the claims regarding Petitioner’s statement specifically, but summarily rejected many of Petitioner’s claims, including (presumably) his arguments concerning the failure to suppress his statement, finding them “unpersuasive.” Dearstyne III, 761 N.Y.S.2d at 121. This determination constitutes a denial on the merits and Petitioner’s claims regarding the suppression of his statement are therefore subject to AEDPA review. See Sellan, 261 F.3d at 312-13 (holding that one word denial is sufficient to constitute an “adjudication on the merits” for purposes of AEDPA).

3. Habeas Review

a. Voluntariness of the Confession

As the Supreme Court explained in Jackson v. Denno,

It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 [ (1961) ], and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029 [ (1945) ]; Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 [ (1952) ]; Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 [ (1958) ]. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra.

Jackson v. Denno, 378 U.S. 368, 377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), the Supreme Court held that to determine whether a statement was voluntary, the trial court must decide whether a defendant’s will was overborne by the circumstances of the interrogation.

“No single criterion controls whether an accused’s confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances.” Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.1997). Voluntariness is a question is a mixed question of law and fact. “Without exception, the [Supreme] Court’s confession cases hold that the ultimate issue of “voluntariness” is a legal question requiring independent federal determination.” Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985) (citing Haynes v. Washington, 373 U.S. 503, 515-516, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Ashcraft v. Tennessee, 322 U.S. 143, 147-148, 64 S.Ct. 921, 88 L.Ed. 1192 (1944)). The Supreme Court explained, “In short, an unbroken line of eases, coming to this Court both on direct appeal and on review of applications to lower federal courts for a writ of habeas corpus, forecloses the Court of Appeals’ conclusion that the ‘voluntariness’ of a confession merits something less than independent federal consideration.” Miller, 474 U.S. at 112, 106 S.Ct. 445. The Miller court reiterated that subsidiary factual questions, such as whether a drug has the properties of a truth serum, or whether in fact the police engaged in the intimidation tactics alleged by the defendant, are entitled to an evidentiary presumption of correctness set forth in former 28 U.S.C. § 2254(d), now 28 U.S.C. § 2254(e)(1). Id. (citing, inter alia, LaVallee v. Delle Rose, 410 U.S. 690, 693-95, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973) (per curiam)). However, the Supreme Court reaffirmed in Miller, “the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.” 474 U.S. at 112, 106 S.Ct. 445.

Although the Supreme Court has not established any per se rules concerning the admissibility of statements made by adolescent defendants, it has stated that “[t]he totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979).

Petitioner asserts the following arguments in support of his claim that his statement was admitted into evidence in violation of his constitutional rights. First, Petitioner contends that his statement was involuntary because the police investigators deliberately and intentionally isolated him, placing him beyond the reach and assistance of his parents. Second, Petitioner argues that he signed the statement due to fear and fatigue and, thus, it should have been suppressed as involuntary. Third, Petitioner argues that the police investigators used “coercive techniques,” including false promises and trickery, that resulted in an involuntary confession.

Numerous courts have observed that the “petitioner’s age is a factor that may enter into a court’s determination of whether a confession was coerced.” Dowtin v. Cohen, No. 99-CV-0323, 2003 WL 21912681, at *2 (E.D.N.Y. June 10, 2003); see also Hemingway v. Henderson, 754 F.Supp. 296, 304 (E.D.N.Y.1991) (noting that “[c]lose scrutiny is always required of any confession that has been given by a 16-year old during custodial interrogation”) (citing Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (holding that murder confession by 15-year-old African-American boy after five hours of interrogation, starting at midnight, by police officers working in relays; without warning him regarding his rights; and without his having had benefit of the advice of friends, family or counsel, should have been excluded because it was involuntary and was extracted by methods violative of due process requirements of Fourteenth Amendment; “when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used”)). The Supreme Court has described the need to exercise “special caution” when assessing the voluntariness of a juvenile confession, particularly where there is prolonged or repeated questioning or where the accused in interrogated wi