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Brown v. Johnson

United States District Court, D. New Jersey

August 6, 2019

STEVEN JOHNSON, et al., Respondents.




         Presently before the Court is the petition pursuant to 28 U.S.C. § 2254 (“the Petition”) (ECF No. 1) of Daniel Twian Brown. Petitioner is currently incarcerated in New Jersey State Prison in Trenton, New Jersey. (ECF No. 1-1 at 20.) Following a forty-three count indictment (ECF No. 1-8); a trial on robbery, burglary, firearm possession, assault, and related charges (ECF No. 1-52); and re-sentencing (ECF Nos. 1-9 and 1-25), Petitioner is serving a sentence, in the aggregate, of a life term of imprisonment with a consecutive forty-one year term subject to an eighty-five percent parole ineligibility. State v. Brown, No. A-2374-12T3, 2014 WL 8808913, at *1 ( N.J.Super.Ct.App.Div. May 13, 2015); ECF No. 1-1 at 132; ECF No. 1-25.

         For the reasons stated herein, the Court denies the Petition on the merits with prejudice. No. certificate of appealability shall issue.


         A grand jury indicted Petitioner on forty separate criminal counts, including robbery, firearm possession, and resisting arrest regarding six armed robberies over less than a one-week period. State v. Brown, 2009 WL 2408568, at *1 ( N.J.Super.Ct.App.Div. Aug. 7, 2009). On June 9, 2006, a jury convicted Petitioner of six counts of first-degree armed robbery; three counts of third-degree theft; nine counts of second-degree possession of a weapon for an unlawful purpose; six counts of third-degree unlawful possession of a rifle; three counts of third-degree possession of a handgun without a permit; one count of second-degree armed burglary; one count of third-degree aggravated assault; one count of second-degree eluding; two counts of fourth-degree resisting arrest; and two counts of second-degree possession of a weapon by a convicted felon. Brown, 2014 WL 8808913, at *1. Between December 28, 2004 and January 1, 2005, Petitioner and other assailants committed these crimes at various locations, including four gas stations, a convenience store, and a catering truck in a parking lot. Petitioner also stole three vehicles. Following his arrest, Petitioner confessed to all of the crimes, with the exception of the robbery of the catering truck. Id. On September 26, 2006, the state court granted the State's motions for a discretionary extended term and to impose consecutive sentences for some of the offenses. The court sentenced Petitioner, in the aggregate, to life imprisonment, with ninety-three years, eight months and 106 days of parole ineligibility. Id.

         Petitioner filed a direct appeal. On August 7, 2009, the Appellate Division of the Superior Court of New Jersey (“Appellate Division”) reversed the convictions related to the unlawful possession of a rifle but affirmed all other convictions. Brown, 2009 WL 2408568, at *22. The Appellate Division also vacated the sentence imposed on two second-degree robbery convictions because the sentences were greater than the range permitted under N.J. Stat. Ann. § 2C:43-6(a)(2); and the sentencing judge failed to make sufficient findings in support of the aggravating, mitigating and Yarbough factors.[1] Brown, 2009 WL 2408568, at *2. The New Jersey Supreme Court granted Petitioner's petition for certification. State v. Brown, 988 A.2d 1177 (N.J. 2010). The Court affirmed and modified the Appellate Division's judgment, and it remanded for resentencing. State v. Brown, 14 A.3d 26, 35 (N.J. 2011). On September 9, 2011, the trial court re-sentenced Petitioner to the same aggregate term. Brown, 2014 WL 8808913, at *1; ECF No. 1-25.

         On March 18, 2011, Petitioner filed a PCR petition. Id.; ECF No. 1-24 at 5. The court denied PCR on August 30, 2012. Brown, 2014 WL 8808913, at *1; ECF No. 1-24 at 1-11. On May 13, 2015, the Appellate Division affirmed denial of PCR. Brown, 2014 WL 8808913, at *1.

         Petitioner filed his habeas Petition on September 29, 2016, asserting the following seven grounds[2]: (1) unconstitutionally warrantless arrest (ECF No. 1-1 at 58-67); (2) violation of Petitioner's Fourth, Fifth, and Fourteenth Amendment rights when the trial court failed to suppress the statements he made after his warrantless arrest and the warrantless search of his girlfriend's apartment (id. at 67-78); (3) IAC by trial counsel (id. at 85-115); (4) IAC by appellate counsel (id. at 115-23); (5) imposition of unconstitutionally cruel and unusual punishment (id. at 123-33); (6) violation of Petitioner's Sixth Amendment and due process rights when the trial court refused him headphones to hear sidebars (id. at 133-34); and (7) cumulative errors. (Id. at 135.) On November 7, 2016, this Court ordered Respondents to answer the Petition (ECF No. 3), which they filed on February 20, 2017. (ECF No. 7.)


         Section 2254(a) permits a court to entertain only claims alleging that a person is in state custody “in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Petitioner has the burden of establishing each of his claims. See Eley v. Erickson, 712 F.3d 837, 846 (3d Cir. 2013). Under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244 (“AEDPA”), federal courts in habeas corpus cases must give considerable deference to determinations of the state trial and appellate courts. See Renico v. Lett, 599 U.S. 766, 772 (2010).

         28 U.S.C. § 2254(d) provides as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(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.

         Where a state court adjudicated petitioner's federal claim on the merits, a federal court “has no authority to issue the writ of habeas corpus unless the [state] [c]ourt's decision ‘was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States,' or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'” Parker v. Matthews, 567 U.S. 37, 40 (2012) (quoting 28 U.S.C. § 2254(d)). The petitioner carries the burden of proof, and review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. See Harrington v. Richter, 562 U.S. 86, 98, 100 (2011). With regard to § 2254(d)(1), a federal court must confine its examination to evidence in the record. See Pinholster, 563 U.S. 170, 180-81 (2011).

         “[C]learly established law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of [the Supreme Court's] decisions, ” as of the time of the relevant state-court decision. White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). A decision is “contrary to” a Supreme Court holding within § 2254(d)(1) if the state court “contradicts the governing law set forth in [the Supreme Court's] cases” or if it “confronts a set of facts that are materially indistinguishable from a decision of th[e Supreme] Court and nevertheless arrives at a [different] result.” Williams, 529 U.S. at 405-06. Under the “‘unreasonable application' clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from th[e Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413.

         Where a petitioner seeks habeas relief, pursuant to § 2254(d)(2), on the basis of an erroneous factual determination of the state court, two provisions of AEDPA apply. First, AEDPA provides that “a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005). Second, AEDPA precludes habeas relief unless the adjudication of the claim “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)(2).

         IV. ANALYSIS

         A. Ground One: Warrantless Arrest In Violation Of The Fourth Amendment

         Petitioner alleges that his warrantless arrest was “unlawful and illegal” in violation of the Fourth Amendment of the United States and New Jersey Constitutions. (ECF No. 1-1 at 58 (“Unlawful Arrest Claim”).) On December 30, 2004, Petitioner went to an office building on the “borderline of Hackensack and Hasbrouck” and stole a four-door car. Three men whom Petitioner knew as Kenny (Kenyatta Clarke), Junior, and Jermaine accompanied Petitioner. Brown, 2009 WL 2408568, at *7. Based on Clarke's statements, police arrested three other individuals who participated in the crimes. These individuals also gave incriminating statements to police, including naming Petitioner as a participant. All of the men arrested implicated Petitioner in these crimes. Id. at *7. On January 1, 2005, Hackensack police officers arrested Petitioner, based on the arrestees' statements. Armed with a sworn complaint, the police went to the apartment of Chastity Connor (“Connor”), whom police believed to be Petitioner's girlfriend. Immediately after the arresting officers knocked on the front door of Connor's apartment, they heard a “crash” sound --caused by Petitioner fleeing through a back window of the apartment, onto the roof of an adjacent building. After a tense, twenty-minute standoff, Petitioner surrendered to the police. Id.

         While in custody, and after waiving his rights under Miranda v. Arizona, 384 U.S. 436 (1966), Petitioner gave incriminating statements concerning his involvement in the various crimes. Specifically, he admitted to stealing a Nissan and an Audi and to committing December 30, 2004 armed robberies of the Easy Shop in Garfield and the BP gas station in Hackensack. Id.

         Arresting officer Detective Patrick Coffey testified at a March 7, 2006 motion to suppress hearing Before the Honorable John A. Conte, J.S.C. He stated that he drafted and signed five complaints against Petitioner on January 1, 2005. Id. at *13; ECF No. 1-27 at 9. Four complaints listed his address as “406 Prospect”; the other listed his address as “45 Linden Street.” Petitioner testified that his address was 406 Prospect Street. His girlfriend and her minor daughter lived at 45 Linden Street. Brown, 2009 WL 2408568, at *13. According to Detective Coffey, he “wasn't a hundred percent sure” where Petitioner lived when the Detective drafted the complaints, but he did not believe that Petitioner lived with Connor. Detective Coffey listed 45 Linden Street as Petitioner's address on one of the complaints because co-defendants had told Captain Frank Lomia, who was Detective Coffey's supervisor, that Petitioner was at Connor's apartment.

         During direct appeal, Petitioner argued that his “arrest was illegal because the arrest warrants were not jurated until days after he was in fact arrested, and thus any statement he made or evidence seized must also be suppressed.” Id. at *11. The Appellate Division determined that police did not lawfully arrest Petitioner “because the face of the warrant shows that it was issued on January 3, 2005, two days after defendant's actual arrest.” Brown, 2009 WL 2408568, at *13. However, the court ruled that the unlawful arrest did not trigger automatic exclusion of seized evidence or suppression of his statements. Id.

         As to the physical evidence seized during Petitioner's arrest, the Appellate Division found that Connor had invited police into her apartment; she consented to a search after Detective Coffey expressed concern about weapons in the apartment; and police saw “men's clothing … items that they seized in plain view.” Id. at *15, *16. These circumstances rendered the evidence seized to be “sufficiently attenuated from the taint of [the arrest's] constitutional violation.” Id. As to Petitioner's post-arrest statements, the Appellate Division ruled they had “no connection to, and are otherwise attenuated from[, ] the unlawful arrest.” Based on the record, the interrogating officers “scrupulously adhered to [Petitioner's] rights under Miranda.” Id. at *17.

         Granting Petitioner's petition for certification, the New Jersey Supreme Court affirmed and modified the Appellate Division's judgment. Brown, 14 A.3d 26. The Court ruled that (1) co-defendants' statements implicating Petitioner provided police with sufficient probable cause to arrest him; (2) there was no seizure of any sort in Connor's apartment; (3) by fleeing through a window onto an adjacent roof and creating a standoff there, Petitioner transformed the situation from an intended arrest in a third party's private apartment to the public arena. There, police could arrest him without a warrant based on probable cause that he had committed armed robbery; and (4) police had authority to arrest Petitioner without a warrant for resisting arrest. Brown, 14 A.3d at 32-35 (“Brown's constitutional rights were not violated by his lawful arrest”).

         In Stone v. Powell, 428 U.S. 465 (1976), the United States Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 495-96. As the Third Circuit explained in Hubbard v. Jeffes, 653 F.2d 99 (3d Cir. 1981), Stone stands for the proposition that “when a state prisoner raises a Fourth Amendment violation in a habeas petition, a federal court may not consider the merits of the claim if the state tribunal had afforded the petitioner ‘an opportunity for a full and fair litigation' of his claim.” Id. at 102-03 (citing Stone, 428 U.S. at 494); see also Marshall v. Hendricks, 307 F.3d 36, 82 (3d Cir. 2002) (“An erroneous or summary resolution by a state court of a Fourth Amendment claim does not overcome the [Stone] bar”) (citations omitted); Reininger v. Attorney Gen. of New Jersey, No. 14-5486, 2018 WL 3617962, at *9 (D.N.J. July 30, 2018). Within the Third Circuit, a petitioner can avoid the Stone bar only by demonstrating that the state system contains a structural defect that prevented full and fair litigation of the Fourth Amendment claim.” Marshall, 307 F.3d at 82.

         Here, Petitioner availed himself of that opportunity for a full and fair litigation of his Unlawful Arrest Claim. He moved to suppress the “physical evidence obtained from the warrant[less] search of Ms. Connor's apartment.” (ECF No. 1-29 at 7-8.) The trial court held two days of evidentiary hearings on the matter, during which both Petitioner and police testified. (ECF Nos. 1-27 and 1-28.) The trial court denied the suppression motion. (ECF No. 1-29 at 9.) Petitioner again presented his Unlawful Arrest Claim on direct appeal. Brown, 2009 WL 2408568, at *11. The New Jersey Supreme Court rejected it. Brown, 14 A.3d at 32-35 (determining that Petitioner's warrantless arrest was lawful and supported by sufficient probable cause).

         The Court concludes that the New Jersey courts provided Petitioner with an adequate forum to present his Unlawful Arrest Claim. He had a full and fair opportunity to litigate his Unlawful Arrest Claim in the state courts. He has failed to demonstrate any structural defect in the state courts' review of that claim. In accordance with Stone and its progeny, this Court may not consider the Unlawful Arrest Claim. See Gilmore v. Marks, 799 F.2d 51, 57 (3d Cir. 1986); Hubbard, 653 F.2d at 103. The Court will deny Ground One as barred by Stone.

         Even if Stone did not apply, Ground One lacks merit. The Constitution prohibits the government from conducting “unreasonable searches” of “persons, houses, papers, and effects, ” U.S. Const. amend. IV. “The general rule in a criminal proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful conduct is not too attenuated.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-41 (1984) (citing Wong Sun v. United States, 371 U.S. 471 (1963)). Whether a search is “unreasonable” is usually determined by the warrant requirement. City of Los Angeles v. Patel, 135 S.Ct. 2443, 2452 (2015) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). A warrantless arrest by a law enforcement officer “is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). See also Brown, 14 A.3d at 32-33 (“To search for the subject of an arrest warrant in the home of a third party, the police must obtain a search warrant -- absent exigent circumstances or consent”) (internal citations omitted).

         Under these clearly established federal law principles, it was not contrary to or an unreasonable application of U.S. Supreme Court precedent for the New Jersey Supreme Court to find Petitioner's arrest lawful. The New Jersey Supreme Court explained that police had probable cause to arrest Brown for his behavior in resisting arrest: (1) Brown's flight “transformed the situation from an arrest in a third party's private apartment … to the public arena, where the police could arrest him without a warrant based on probable cause that he had committed armed robbery.” Brown, 14 A.3d at 34; and (2) Brown's standoff in police presence, “posing a risk to the officers and the public[, ]” provided “an alternative basis to arrest him … without a warrant for resisting” Id. See Kentucky v. King, 563 U.S. 452, 459-60 (2011) (citations omitted).

         For all of the foregoing reasons, Ground One of the Petition is denied in its entirety.

         B. Ground Two: Unconstitutional Failure To Suppress Petitioner's Post-Arrest Statements

         Petitioner argues that the trial court should have suppressed his post-arrest custodial statements because police had no warrant to arrest him or to search Connor's apartment. (ECF No. 1-1 at 67-78.) He claims violation of his Fourth, Fifth, and Fourteenth Amendment rights. (Id.) Following pre-trial evidentiary hearings on Petitioner's suppression motion, Judge Conte rejected the motion as to Petitioner's post-arrest statements. (ECF No. 1-29 at 9.) The trial judge found the statements admissible because sufficient probable cause existed to arrest Petitioner: co-defendants' statements implicated him, and Petitioner attempted to flee Connor's apartment. (Id. at 11.) The trial court also determined that, given the “facts and the totality of circumstances, ” Petitioner knowingly and voluntarily waived his Miranda rights.” (Id. at 12.)

         To the extent Ground Two asserts that Petitioner's inculpatory statements should have been suppressed as fruits of his purportedly unlawful arrest (Petitioner's “Poisonous Tree Contention”), [3] such assertion is a quintessentially Fourth Amendment argument. Stone again bars such claim from habeas review. See Jones v. Superintendent of Rahway State Prison, 725 F.2d 40, 42 (3d Cir. 1984) (contention that defendant's confession and all other evidence admitted at his trial should have been suppressed as fruit of illegal arrest was not proper subject for consideration by federal habeas corpus court under Stone). See also Jones v. Johnson, 171 F.3d 270 (5th Cir. 1999) (on federal habeas review, federal court could not reexamine petitioner's Fourth Amendment claim alleging that post-arrest statements should have been suppressed as “poisonous fruit” of his illegal arrest, since state provided opportunity for full and fair litigation of petitioner's Fourth Amendment claim prior to trial and thus was barred by Stone).

         The New Jersey courts provided Petitioner with an adequate forum to present Ground Two's Poisonous Tree Contention. He argued this point in his motion to suppress. Judge Conte considered it at the evidentiary hearing and rejected it. (ECF No. 1-29 at 9-11.) The New Jersey Supreme Court determined that Petitioner's arrest was lawful and was supported by sufficient probable cause. Brown, 14 A.3d at 32-35. There was no Fourth Amendment violation in the first instance to taint his post-arrest statements. Petitioner has not demonstrated any structural defect in the state courts' review of his Poisonous Tree Contention. See Marshall, 307 F.3d at 82. Pursuant to Stone, this Court may not consider that Fourth Amendment argument in Ground Two. See Gilmore, 799 F.2d at 57; Hubbard, 653 F.2d at 103.

         To the extent Ground Two alleges violation of Petitioner's Fifth and Fourteenth Amendment due process rights as established in Miranda v. Arizona, 384 U.S. 436 (1966) (Petitioner's “Miranda Contention”), such assertion is without merit. Pursuant to the Fifth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, “[n]o person ... shall be compelled in any criminal case to be a witness against himself [.]” U.S. Const. amend. V; Malloy v. Hogan, 378 U.S. 1, 8 (1964). In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court of the United States held that

when an individual is taken into custody or otherwise deprived of his freedom by the authorities … and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege … [He] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires ... After such warnings have been given, [he] may knowingly and intelligently waive these rights and agree to answer questions or make a statement.

384 U.S. at 478-79 (footnote omitted).

         When police question a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence in the State's case in chief. See Oregon v. Elstad, 470 U.S. 298, 317 (1985). A confession taken during a custodial interrogation without the provision of Miranda warnings violates the privilege against self-incrimination. See Thompson v. Keohane, 516 U.S. 99 (1995). After such warnings and opportunity, “the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement.” Miranda, 384 U.S. at 479. A waiver may be made orally or may be implied from a suspect's conduct. See North Carolina v. Butler, 441 U.S. 369, 373 (1979); United States v. Cruz, 910 F.2d 1072, 1080 (3d Cir. 1990), cert. denied, 498 U.S. 1039 (1991). The test for waiver is two-pronged: (1) the relinquishment of the right must have been voluntary, “in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception”; and (2) the waiver “must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986) (internal quotations marks and citations omitted). See also Dickerson v. United States, 530 U.S. 428, 434 (2000) (internal citations omitted); Reinert v. Larkins, 379 F.3d 76, 88 (3d Cir. 2004) (internal citations omitted).

         At the suppression motion hearing, Judge Conte correctly acknowledged the court's obligation to review the “totality of circumstances” surrounding Petitioner's post-arrest statements. (ECF No. 1-28 at 72). The court carefully scrutinized in great detail evidence of the circumstances surrounding Petitioner's post-arrest statements and whether he had waived his Miranda rights -- including “the events that occurred and the background, experience, and conduct of the defendant.” See Reinert, 379 F.3d at 88. At great length, the trial court heard testimony from four police officers who were present at during Petitioner's custodial statements. A brief summary follows.

         On the evening of his arrest, Petitioner spoke with Captain Frank Lomia of the Hackensack Police Department. He said Petitioner did not ask for a lawyer and did not refuse to speak with police. (ECF No. 1-28 at 68.) Captain Lomia testified that “this [wa]s the second time [Petitioner] was read his Miranda rights. [T]he Miranda form … was read to [Petitioner] … and [Petitioner] … said yes to each of the questions and … then [Petitioner] signed the form.” (Id.) Judge Conte noted that the Miranda rights form advised Petitioner of his constitutional rights “in big black bold letters.” (ECF No. 1-28 at 68.) Petitioner signed not only the Miranda form but also a statement, of which Judge Conte noted:

[T]he Miranda rights form [has] a waiver at the bottom … Of course with defendant signing this[, ] it flies in the face of his testimony today.
[Exhibit] S-4 was a voluntary statement given by the defendant on the computer … [He] initialed each page and he signed the last page.

(ECF No. 1-28 at 68 (“He never asked for a lawyer and he was never threatened or coerced”).) See also ECF No. 7-9 at 78-84 (Petitioner's statement given to Hackensack Police Department).)

         Later that same evening, Detective Peter Schwartz of the Englewood Police Department interrogated Petitioner. Brown, 2009 WL 2408568, at *8. Police again advised Petitioner of his Miranda rights. He again waived those rights in writing on the Miranda form. Petitioner then “indicated that he understood and wished to speak.” (Id.) Detective Schwartz testified that Petitioner appeared “very calm” during the interrogation and his “demeanor was very cooperative.” Id. Petitioner admitted that he stole the Ford Escort and committed the December 29, 2004 armed robberies of the River Edge BP gas station and the Englewood Mobil gas station. At the conclusion of the interrogation, Detective Schwartz asked Petitioner if he wanted to add to his statement. Id. at *9. Petitioner replied: “Yes. I am sorry and I wasn't trying to hurt nobody. I was trying to feed my family and I lost my job and I was going through a rough time.” Id. After speaking to Detective Schwartz, Petitioner gave a statement confessing to stealing the Nissan and Audi and to robbing the Easy Shop in Garfield. Id. at *10. As to this formal statement, Detective Schwartz testified that Petitioner “gave answers to questions and he was given the opportunity to make any changes on the form … He never invoked Miranda and he was never threatened or coerced.” (ECF No. 1-28 at 69.)

         Petitioner also waived Miranda and made a post-arrest admission to Detective Edward Garnto of the Garfield Police Department. Detective Garnto testified at the suppression hearing that he “advised defendant of his Miranda rights before speaking to him … Defendant signed the [Miranda] waiver. He admitted his participation in the robbery … He was offered pizza.” (Id.)

         Finally, Petitioner waived Miranda and gave a post-arrest statement to Detective Jeffrey Telep of the Lodi Police Department. Detective Telep testified as the suppression hearing that he advised Petitioner of his Miranda rights and that Petitioner signed the Miranda rights form. Petitioner “ate pizza and soda prior to this statement. He was very cooperative.” (Id. at 69-70.) Petitioner signed a formal statement. (Id.) See also Brown, 2009 WL 2408568, at *11 (“According to Detective Telep, Petitioner was ‘very calm and cooperative,' and he did not seem or say that he was too tired or hungry to give a statement”).

         In sharp contrast to this substantively consistent law enforcement testimony from four different police departments, Petitioner (1) flatly denied having cognitive capacity the day of his arrest, claiming that (a) he was feeling “woozy” after consuming a whole bottle of cognac and (b) he had jumped out the apartment window because he “feared for Miss Connor and the baby”; (2) claimed unawareness of his Miranda rights when he gave his statements; (3) testified that he had repeatedly demanded counsel after his arrest; (4) suggested the involuntariness of his signed statements; (5) denied receiving any written or verbal Miranda warnings; (6) alleged that police never asked him questions before preparing his formal statements; (7) claimed that police presented him with a completed statement form for his signature, which he signed only “because of fear that police would do something to [my] family”; and (7) claimed that police never offered or provided him with food. (ECF No. 1-28 at 70-71.)

         After receiving all the evidence, the state court noted the far-fetched nature of Petitioner's version of the underlying facts. Judge Conte was incredulous at Petitioner's contention that, despite his five prior convictions, he had never before heard of Miranda. (ECF No. 1-28 at 72.) The Judge noted the irresolvable inconsistencies among Petitioner's post-arrest statements under oath that he was involved in the robbery; his testimony that the words on his Miranda forms were not his; his testimony that he never read his formal signed statements; and the evidence that police told Petitioner to read every page of his statement and “if there's any changes we'll review them with you.” (Id.)

         Judge Conte commented on the implausibility of Petitioner's version:

Defendant's testimony today is totally incredulous. How could anyone believe what he's saying today? In order to believe defendant then it would have to find the other four parties in this case lied. They all lied deliberately ...

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