Petition for Writ of Certiorari — New York v. Zappulla

Y)

No.

FILED

041520 MAY 10 2005

IN THE

OFFICE @F THE CLERK

Supreme Court of the Anited States

+ >

PEOPLE OF THE STATE OF NEW YORK,

Petitioner,

—against—

GUY ZAPPULLA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

CHARLES J. HYNES

District Attorney

Kings County

LEONARD JOBLOVE*

CAMILLE O’ HARA GILLESPIE

Assistant District Attorneys

Kings County District Attorney’s Office

350 Jay Street

Brooklyn, New York 11201-2908

(718) 250-2511

* Counsel of Record for Petitioner

May 10, 2005

rs cise

> a IE hn a line

i

QUESTIONS PRESENTED

1. Under what circumstances does the passage of time

between the administration of Miranda warnings and a

Suspect’s statement to the police undermine the effec-

tiveness of the warnings and require suppression of the

statement?

2. Does the standard of harmless error set forth in

“Brecht v. Abrahamson, 507 U.S. 619 (1993), still apply

on habeas corpus review under 28 U.S.C. § 2254 after

the amendment of that statute by the Antiterrorism and

Effective Death Penalty Act of 1996?

li

PARTIES TO THE PROCEEDING

The petitioner in this Court is the State of New York.

The State is represented in this federal habeas corpus

proceeding by Kings County District Attorney Charles J.

Hynes, by agreement with the Attorney General of the

State of New York. The respondent in this Court is Guy

Zappulla, who was convicted of murder in New York

State court and filed the federal habeas corpus petition

that is the subject of this litigation.

ili

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..................000.. i

PARTIES TO THE PROCEEDING ............... il

TABLE OF AUTHORITIES....................... vi

MERION Lis cScswdcccctcetacecevecsabee |

I oe Ls Sedct binder cGiessebadsacwcwas I

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED................... 2

STATEMENT OF THE CASE..................00. 3

NEN S bitasscsuducscvesivevivseddd melas 3

The Motion to Suppress Defendant's

TEN Anciutcbkurediubidcctecsslaxicnk. 4

DE ddesthavuwsnekeudsSeuacsybccundaiditucs 6

IIE ni cscs ccauthwenecesencekdaden 10

The Federal Court Proceedings .............. 11

iv

REASONS FOR GRANTING THE WRIT ....... 14

I. The Second Circuit’s Decision Presents an

Important and Recurring Question, on Which

the Federal Courts of Appeals Have Reached

Conflicting Results, of When a Lapse of

Time Between the Administration of

Miranda Warnings and a Suspect’s

Statement Undermines the Effectiveness of

the Warnings and Renders the Statement

RETO dn hn sndasnusnnsidsandecndsavereases 15

Il. The Second Circuit’s Decision Presents an

Important and Recurring Question, on

Which the Federal Courts of Appeals Have

Reached Conflicting Results, of Whether

the Brecht Standard of Harmless Error

Applies on Habeas Corpus Review Under

28 U.S.C. § 2254, as Amended by the

Antiterrorism and Effective Death Penalty

PIE OE TOO cb kscbddiddsintesianiadssstiasdien 21

SLANT. as vakaddansabecdsaccdasncacaniaedeled 29

APPENDIX

Opinion of the United States Court of Appeals

for the Second Circuit,

dated November 17, 2004 .......cccsccccccses ia

Opinion of the United States District Court

for the Eastern District of New York,

Gatee September 30, ZOOS .......ccnsssesssccae 55a

Opinion of the New York Supreme Court,

Appellate Division, Second Judicial

Department, dated April 23, 2001 ........... 75a

Minutes of the decision of the New York

Supreme Court, Kings County, Criminal

Term, dated February 10, 1999............... 80a

Order of the United States Court of Appeals for

the Second Circuit, dated February 9, 2005,

denying petition for rehearing en banc...... 87a

vi

TABLE OF AUTHORITIES

PAGE

Cases:

Aleman vy. Sternes, 320 F.3d 687 (7th Cir.),

cert. denied, 539 U.S. 960 (2003) ........... 23, 24

Allen v. Lee, 366 F.3d 319 (4th Cir.),

cert. denied, 125 S. Ct. 208 (2004)..........

Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975),

cert. denied, 425 U.S. 950 (1976) ........... 17

Brecht v. Abrahamson, 507 U.S. 619 (1993)..... passim

'

‘a

Chapman v. California, 386 U.S. 18 (1967) ..... passim

Colorado v. Spring, 479 U.S. 564 (1987) ........ 20

Commonwealth v. Murray, 359 Mass. 541,

269 NN. SE GEE CIGTE)D ceccdcsccseccsssceccess 17-18

Commonwealth v. Wideman, 460 Pa. 699,

334 A.26 Doe CEP Fae cacdskcantecceatevebeesan 17

Cotton v. Cockrell, 343 F.3d 746

(5th Cir. 2003), cert. denied,

S40 U.S. L1G (SQOS) acccoccvecccccesescecccse 23-24

Early v. Packer, 537 U.S. 3 (2002) ............4. 26

Edwards v. Arizona, 451 U.S. 477 (1981)........ 18

Ford v. Curtis, 277 F.3d 806 (6th Cir.),

cert. denied, 537 U.S. 846 (2002) ........... 24

Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000),

cert. denied, 532 U.S. 947 (2001) ........... 24

Vii

PAGE

Herrera v. Lemaster, 301 F.3d 1192

(10th Cir. 2002), cert. denied,

og F Bf: | ree re 23, 24

Jones v. Polk, 401 F.3d 257 (4th Cir. 2005)...... 23

Koger v. State, 117 Nev. 138, i7 P.3d 428

ED bdaunandbdccbucaatebebackuseastchbeae desk 17

Kotteakos v. United States, 328 U.S. 750

CRU cbctdadealndkedasdadecdsedbduesdatcshia 22

Lindh v. Murphy, 521 U.S. 320 (1997) ........... 22

Maguire v. United States, 396 F.2d 327

(9th Cir. 1968), cert. denied, 393 U.S. 1099

(SROD ccccccccassccsuhebabigenabcabvaneseusadaus 16

Martin v. Wainwright, 770 F.2d 918

(llth Cir. 1985), modified, 781 F.2d 185

(lith Cir.), cert. denied, 479 U.S. 909

CP backdddcuddecananrdbhsdcunceddandbenaae 17

McClain v. Hill, 52 F. Supp. 2d 1133

CEs Ee Bei ciscdaadsabwinabobcneketnwces 16

Miranda v. Arizona, 384 U.S. 436 (1966)........ passim

Mitchell v. Esparza, 540 U.S. 12 (2003) ..... 12, 25-26

Murr v. United States, 200 F.3d 895

(De RE et ie Ca ee 25

Nevers v. Killinger, 169 F.3d 352 (6th Cir.),

cert. denied, 527 U.S. 1004 (1999).......... 24

Osborne v. State, 263 Ga. 214, 430 S.E.2d 576

(1993), cert. denied, 510 U.S. 1170 (1994). 17

Penry v. Johnson, 532 U.S. 782 (2001)........... 26

Vili

PAGE

People v. Mickle, 54 Cal.3d 140, 814 P.2d 920

(1991), cert. denied, 503 U.S. 988 (1992) .. 17

People v. Zappulla, 282 A.D.2d 696,

724 N.Y.S.2d 433 (App. Div. 2001) ...1, 10-11, 27

People v. Zappulla, 96 N.Y.2d 909,

756 N.E.2d 96, 730 N.Y.S.2d 808 (2001) ... 1]

Puplampu v. United States, 422 F.2d 870

(9th Cir.), cert. denied, 399 U.S. 914

CPP ORR, Sree ir Rel ome Ne Ma RST POT 16

Robertson v. Cain, 324 F.3d 297

Ne a a 25

Ross v. United States, 289 F.3d 677

(lith Cir. 2002), cert. denied,

ee Ws EE An ccd eudtdccdihseecseececs 25

Sanna v. DiPaolo, 265 F.3d 1 (1st Cir. 2001).... 24

State v. DeWeese, 213 W. Va. 339,

ee a Fe CB iccddbedudbivandekensnse 17

United States v. Andaverde, 64 F.3d 1305

(9th Cir. 1995), cert. denied, 516 U.S. 1164

SEED «wk usdola kite ckisinaatk babi eta bain ae 16

United States v. Montalvo, 331 F.3d 1052

(9th Cir. 2003), cert. denied,

De ees Be CED obs Kav kbuscddnsddoesnckss 24-25

United States v. Pruden, 398 F.3d 241

I I ue kiee 16

United States v. Rodriguez-Preciado,

FIP Wee BEES COG CHE, Be) occccccccceseses 16

ix

PAGE

United States v. Weekley, 130 F.3d 747

Se eee Ut kis sb banded cok bedeWicnewucccsade 16

United States ex rel. Henne v. Fike,

563 F.2d 809 (7th Cir. 1977), cert. denied,

a nc ae Oe chs nctansdccdkcncedivanes 20

Whitmore v. Kemna, 213 F.3d 431

CHEE CHE, DOE) a ccccnccccnsecsssssesessiccseces 24

Wyrick v. Fields, 459 U.S. 42 (1982) ............. 18

Zappulla v. New York, 391 F.3d 462

Se ls ED has hee oer deat hscohankes ck snas passim

Zappulla v. New York, 296 F. Supp. 2d 309

(E.D.N.Y. 2003), rev’d, 391 F.3d 462

Cae i ES Gk lag eee Re 1, 11-12

United States Constitution:

I ei 2

POMS OE FUORIIOEE 0 onc ccc ccdvcccnncncisencecs 2

United States Statutes:

Se Ee hg ro ioe cc epuees causes passim

Se Ta Se 24

PSN IN DE LEY REEL OIG FELIS TLE AR EM EMEP TY

UTP STE ATT OT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The State of New York requests that this Court issue a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Second Circuit that

reversed a judgment of the United States District Court

for the Eastern District of New York (Weinstein, J.), and

remanded the case to that court, with a direction to grant

Guy Zappulla’s petition for a writ of habeas corpus

unless the State grants a new trial within a reasonable

period. The United States District Court for the Eastern

District of New York had denied the petition for a writ

of habeas corpus, holding that the state appellate court

had correctly concluded that admission of Zappulla’s

confession to police was harmless error.

Opinions Below

The citation of the opinion of the United States Court

of Appeals for the Second Circuit is Zappulla v. New

York, 391 F.3d 462 (2d Cir. 2004). The citation of the

opinion of the United States District Court for the East-

ern District of New York is Zappulla v. New York, 296 F.

Supp. 2d 309 (E.D.N.Y. 2003). The citation of the opin-

ion of the Appellate Division is People v. Zappulla, 282

A.D.2d 696, 724 N.Y.S.2d 433 (App. Div. 2d Dep’t

2001). The oral decision of the state trial court on the

motion to suppress is unreported. Each of these opinions

is reproduced in the Appendix to this petition.

Jurisdiction

The judgment of the United States Court of Appeals

for the Second Circuit was entered on November 17,

2004, and amended:on December 7, 2004. The State’s

timely petition for a rehearing en banc was denied on

February 9, 2005. This petition for certiorari was filed

within ninety days of February 9, 2005. This Court’s

jurisdiction is invoked under 28 U.S.C. § 1254(1).

Constitutional and Statutory Provisions Involved

United States Constitution, Fifth Amendment:

No person .. . shall be compelled in any criminal

case to be a witness against himself....

United States Constitution, Fourteenth Amendment:

. . nor shall any State deprive any person of life,

liberty, or property, without due process of law;

28 United States Code § 2254:

State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a cir-

cuit judge, or a district court shall entertain an

application for a writ of habeas corpus in behalf of

a person in custody pursuant to the judgment of a

State court only on the ground that he is in custody

in violation of the Constitution or laws or treaties of

the United States.

(d) An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judg-

ment 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 adju-

dication of the claim—

ee ee a ee ae eee mn as

3

(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 pro-

ceeding.

STATEMENT OF THE CASE

Introduction

Defendant, Guy Zappulla, was tried and convicted

before a jury of the intentional murder of Jennifer

Scarpati, whose strangled body the police found on

March 17, 1998, in Brooklyn, New York, under the bed

in the motel room where she had been staying with

defendant. A state appellate court affirmed defendant’s

judgment of conviction, concluding that admission at

trial of his murder confession, made 24 hours after

Miranda warnings were given, was error, but harmless in

light of the overwhelming evidence of defendant’s guilt.

See Miranda v. Arizona, 384 U.S. 436 (1966). The dis-

trict court denied defendant’s petition for a writ of

habeas corpus, concluding that the evidence of defen-

dant’s guilt was overwhelming and that the state appel-

late court correctly determined that admission of the

confession was harmless error.

In a split decision, the Second Circuit reversed the

district court’s order, concluding that defendant’s con-

fession was admitted in violation of his Miranda rights

and that the state appellate court’s determination of

harmless error was objectively unreasonable. The

Second Circuit majority granted habeas relief without

4

applying the test of harmless error set forth in Brecht v.

Abrahamson, 507 U.S. 619 (1993). The dissenting judge

agreed with the district court that the evidence of defen-

dant’s guilt was overwhelming and that the determina-

tion of the state appellate court was not objectively

unreasonable.

This case presents two independent questions, each of

which warrants this Court’s consideration: (1) under

what circumstances does the passage of time—which in

this case was 24 hours—between the administration of

Miranda warnings and a suspect’s statement render that

statement constitutionally inadmissible, and (2) after the

Antiterrorism and Effective Death Penalty Act of 1996,

is a federal court required to apply the harmless error

test of Brecht v. Abrahamson to a trial error asserted by

a state prisoner before the court may grant habeas corpus

relief.

The Motion to Suppress Defendant’s Confession

Prior to trial, defendant moved to suppress his state-

ments, made on March 18, 1998, to Detectives Delahunt

and McMahon, in which he admitted that he had

strangled Jennifer Scarpati in a motel room in Brooklyn,

New York. The suppression hearing testimony showed

that Detective Delahunt, who was searching for defen-

dant in connection with a March 15, 1998, burglary and

larceny at the home of defendant’s girlfriend, Margaret

Tarulli, had issued a wanted poster for defendant. Police

officers who had seen the poster arrested defendant at

about 12:30 a.m. on March 17, 1998, in a hallway of the

Golden Gate Inn, a motel in Brooklyn. After defendant’s

arrest, Detective Delahunt read defendant Miranda

warnings on March 17, 1998, at about 1:20 a.m. at the

6lst Precinct stationhouse, and defendant agreed to

speak with him. Defendant spoke to Delahunt about

5

other matters but made no statements concerning the

theft of a fur coat and jewelry belonging to Tarulli.

Afterwards, a police officer found in defendant’s pocket

a key to Room 234 at the Golden Gate Inn. At about

8:45 a.m., Detective Delahunt and the motel manager

went to Room 234, where the manager saw a fur coat.

Room 234 was secured, and Detective Delahunt obtained

a search warrant for the room. Detective Delahunt

returned to Room 234 at about 6:00 p.m. to execute the

warrant and discovered the strangled body of Jennifer

Scarpati under the bed.

Meanwhile, as police officers were escorting defen-

dant from their vehicle into Brooklyn Central Booking,

defendant broke free and ran up the block to an inter-

section, where he was struck by a car and captured by

the police. The police took defendant to a hospital and

then back to the 61st Precinct stationhouse.

Detectives Delahunt and McMahon spoke with defen-

dant at the 61st Precinct at about 1:15 a.m. on March 18,

1998. Defendant appeared tired and had a limp, but

nothing else seemed wrong with him. Without repeating

‘Miranda warnings to defendant, the detectives asked

defendant about the motel room and told defendant that

they had found Scarpati’s body. Defendant said that he

thought it would be best if he had a lawyer present.

Detective McMahon told defendant that Detective

Delahunt had advised defendant of his rights and that if

defendant wanted a lawyer, one would be obtained, but

the police would not speak with defendant. Defendant

said that he did not want an attorney for himself and that

he wanted the district attorney. Defendant said that he

wanted the district attorney so that he could make a full

statement and receive a guarantee that he would get the

death penalty, because he did not want to go back to jail

or spend his life in solitary confinement. Detective

eter aati woe Beat aaa pai ea ae ah ao _one

Se eeeeieee gemini aren Geareueectamaene Seanennm tect eerie memati ore

TRO See LEE ERO Ee a

6

McMahon told defendant that defendant would have to

speak with the detectives before ne spoke with the dis-

trict attorney and that no one would guarantee him any

type of sentence. Defendant said to tell the district attor-

ney when he arrived that there were several people in the

room, that they left, that defendant was alone in the

room with the girl, and that when defendant left, she was

dead.

Defendant admitted to the detectives that he had been

staying in the room with Scarpati for three days and that

they had smoked crack with a man whom defendant

knew as Aaron or TeAmo. Defendant said that after

Aaron had gone, defendant and Scarpati got into an

argument over the disappearance of some jewelry, and

defendant strangled Scarpati.

The hearing court denied suppression of defendant’s

confession, concluding that defendant had been given

Miranda warnings within a reasonable time prior to

defendant’s statements, that the time between Miranda

warnings and defendant’s confession was in part

attributable to defendant’s act of absconding, and that

repetition of Miranda warnings was unnecessary because

it was clear when defendant said that he wanted to speak

to an attorney that he had not forgotten his rights (App.

at 8la, 83a-86a). The hearing court also concluded that

defendant had not unambiguously invoked his right to

counsel (App. at 85a).

The Trial

At the trial, the State introduced evidence that on

March 15, 1998, defendant joined Jennifer Scarpati,

whom defendant knew, and Scarpati’s friends, Aaron

Cohen and Bruce Brodsky, on Brodsky’s boat, docked

near the Golden Gate Inn. Scarpati worked as a prosti-

se

sate”,

——

7

tute, and Cohen was a gypsy cab driver. Defendant gave

Cohen money to rent a room for defendant and Scarpati

at the Golden Gate Inn, as neither defendant nor Scarpati

wanted anyone to know that they were there. At about

7:30 or 8:00 p.m., Cohen drove Scarpati and defendant

to the motel, and defendant and Scarpati entered by a

side door. After smoking cocaine with defendant and

Scarpati in Room 234, Cohen left defendant and Scarpati

in the room.

The next morning, Cohen telephoned defendant from

the lobby of the motel, and defendant asked Cohen to

come to Room 234. When Cohen arrived at the room,

defendant was there, and Scarpati was sleeping. Defen-

dant gave Cohen some jewelry to sell and asked Cohen

to buy crack cocaine. On March 16, 1998, at about 11:30

a.m., Cohen returned to Room 234 and gave defendant

the drugs he bought and the money left over from the

sale of the jewelry. Defendant gave Cohen some of the

money, and Cohen smoked crack with defendant. After

defendant gave Cohen money to pay for the room for

another day, Cohen went downstairs, paid for the room,

and returned to Room 234, where he smoked crack with

defendant. Cohen then left the motel.

At about 2:00 p.m. on March 16, 1998, Cohen called

Room 234 and spoke with Scarpati. Cohen called the

room again at about 5:00 p.m. and spoke with defen-

dant. When Cohen asked where Scarpati was, defendant

told him that they had had a fight, that Scarpati had left

the room, and that defendant did not know where she

was.

Motel surveillance tapes showed defendant walking

out of the motel on March 16, 1998, at about 11:12 p.m.

Telephone records showed that three calls were made

from Room 234 between 12:06 and 12:11 a.m. on March

17, 1998. Motel surveillance tapes showed defendant

8

walking out of the motel again at 12:18 a.m. and then

reentering the motel shortly thereafter. The tapes also

showed police officers arriving at the motel at 12:21

a.m. The police, who had been called to investigate an

unrelated dispute at the motel, encountered defendant in

the second-floor hallway of the motel. Recognizing

defendant from a wanted poster, the police arrested

defendant and took him to the 61st Precinct station-

house, where Detective Delahunt gave defendant

Miranda warnings at 1:20 a.m.

A police officer searched defendant and recovered a

key to Room 234. At about 8:45 a.m., Detective

Delahunt went to Room 234 with the motel manager,

who entered the room and saw a fur coat in an open

dresser drawer. The motel room door was secured, and

Detective Delahunt obtained a search warrant for the

room. Detective Delahunt returned to Room 234 at about

6:00 p.m. to execute the warrant and found Scarpati’s

fully-clothed body stuffed underneath the bed. A pair of

underpants was wrapped around Scarpati’s neck as a lig-

ature. A forensic investigator who examined her body at

the scene determined that Scarpati’s death occurred

between 9:00 p.m. on March 16, 1998, and 5:00 a.m. on

March 17, 1998. The medical examiner concluded from

the autopsy that Scarpati died from ligature strangula-

tion. The blood from Scarpati’s nose and mouth had been

shed after her strangulation and death had occurred. The

police found a blood stain on the wallpaper near the bed

under which Scarpati’s body had been hidden.

Meanwhile, as the police were escorting defendant to

Central Booking to continue his arrest processing, defen-

dant escaped from the police and ran forty feet to an

intersection. The police chased defendant, a car collision

ensued, and the police captured defendant at the inter-

section. The police took defendant to the hospital and

9

then back to the 61st Precinct, where Detectives

Delahunt and McMahon spoke with defendant at about

1:15 a.m. on March 18, 1998. Miranda warnings were

not repeated. Defendant said that he wanted an attorney,

and Detective McMahon reminded defendant that

Detective Delahunt had given defendant Miranda

warnings and that if defendant wanted an attorney, one

would be provided, but that the detectives would not

speak to him. Defendant then said that he was referring

to the district attorney, from whom defendant wanted a

guarantee that he would get the death penalty because he

did not want to go back to jail. Defendant admitted that

he had choked Scarpati and that she was dead when he

left the room.

In a signed statement, defendant said that he had been

staying with Scarpati in the room for about three days

and that he had gone to the room with his girlfriend

Margaret’s fur coat and jewelry. Defendant said that

Aaron had left and returned with more drugs, and that

Aaron said he had used Margaret’s jewelry to get the

drugs. Defendant said that he got mad because he

had not given Aaron and Jennifer permission to sell the

jewelry. Defendant admitted that, although he was mad,

he still used the drugs. After Aaron left the room, defen-

dant argued with Jennifer about the jewelry, and Jennifer

started to fight with him. Defendant fought back and

choked her. In the signed statement, defendant stated

that she was unconscious when he left the room and he

did not know if she was dead.

After speaking with defendant, Detective Delahunt

took defendant’s clothing, which was stained. Three

chains were found in defendant’s pants pocket. DNA

tests showed that blood found in multiple locations on

defendant’s clothing and boots was Scarpati’s.

be

SIE Na ERR IES

2 GRR oy

10

While incarcerated before trial, defendant spoke to a

fellow inmate, Felix Pabon, about the incident. Defen-

dant told Pabon that he went to a motel with some peo-

ple, and that they were getting high. Defendant said that

he fell asleep, and when he awoke, he was missing some

jewelry that had been in his pocket. Only the victim,

whom defendant referred to as a prostitute, was there,

and defendant blamed her. She said she did not do it, and

defendant started beating her up and then choked her.

Defendant said that when he choked her, some blood

came out of her and got on the wall. Defendant told

Pabon that he choked her to death and that he then broke

her back and put her under the mattress.

ae a

_——

Defendant was convicted of intentional murder and

was sentenced to a prison term of 25 years to life.

The State Appeal

On appeai to the New York Supreme Court, Appellate

Division, Second Judicial Department, defendant

ciaimed that his confession should have been sup-

pressed. The Appellate Division affirmed the judgment

of conviction (App. at 75a-79a). People v. Zappulla, 282

A.D.2d 696, 724 N.Y.S.2d 433 (App. Div. 2001). Noting

that no reported case in New York had held that a

24-hour interval in questioning was reasonable, the

Appellate Division held that “the 24-hour gap between

the issuance of Miranda warnings to the defendant and

his second interrogation was not a reasonable time,” but

concluded that admission of defendant's confession did

not require reversal of the conviction “in view of the

overwhelming evidence of his guilt” (App. at 78a). 282

A.D.2d at 697-98, 724 N.Y.S.2d at 435-36. The Appel-

late Division noted:

A witness testified that the defendant was with

Scarpati in room 234 at the Golden Gate Inn in the

il

days and hours immediately before the crime.

Surveillance videotape from the motel showed the

defendant leaving and then reentering the motel

shortly before the police arrived and arrested him on

March 17, 1998. Expert testimony indicated that

Scarpati’s death occurred sometime between the

evening of March 16 and the early morning of

March 17. The key to Room 234, the room where

Scarpati’s body was found, was recovered from the

defendant's person after his arrest. D.N.A. testing of

blood found on the defendant's clothing revealed

that the blood was Scarpati's. In addition, the defen-

dant admitted to an inmate, who was incarcerated

with the defendant pending trial, that when he

choked Scarpati “blood came out.”

(App. at 78a-79a). 282 A.D.2d at 698, 724 N.Y.S.2d at

436. The Appellate Division concluded that there was

“no reasonable possibility that the error of admitting the

defendant’s statement into evidence might have con-

tributed to his conviction” (App. at 79a). 282 A.D.2d at

698, 724 N.Y.S.2d at 436.

Defendant's application for leave to appeal from the

order of the Appellate Division to the New York Court

of Appeals was denied. People v. Zappulla, 96 N.Y.2d

909, 756 N.E.2d 96, 730 N.Y.S.2d 808 (2001) (Ciparick,

J.).

The Federal Court Proceedings

By petition filed in 2002, defendant sought a writ of

habeas corpus in the United States District Court for the

Eastern District of New York. In his petition, defendant

challenged the admission of his confession to the police.

By a memorandum and order dated September 30,

2003, the district court denied the petition (App. at 55a-

74a). Zappulla v. New York, 296 F. Supp. 2d 309

12

(E.D.N.Y. 2003). The district court concluded that the

evidence against defendant, even aside from his

confession to police, was overwhelming and that the

Appellate Division reasonably explained why it deemed

the error in not suppressing the confession to be harm-

less (App. at 70a-71a). 296 F. Supp. 2d at 319. Citing

Brecht v. Abrahamson, 507 U.S. 619 (1993), the district

court further concluded that in light of the overwhelm-

ing evidence against defendant, there was no reasonable

probability that the introduction of his confession to the

police had a substantial and injurious effect or influence

in determining the jury’s verdict (App. at 69a-72a). 296 .

F. Supp. 2d at 318-19.

A divided panel of the United States Court of Appeals

for the Second Circuit reversed the judgment of the dis-

trict court, vacated defendant’s murder conviction, and

remanded the case to the district court, instructing the

district court to grant the writ of habeas corpus unless

the State granted defendant a new trial within a reason-

able period (App. at la-54a). Zappulla v. New York, 391

F.3d 462 (2d Cir. 2004). The Second Circuit concluded

that it was “‘objectively unreasonable’ for the Appellate

Division to decide ‘beyond a reasonable doubt that [the

trial court’s wrongful introduction of the unlawfully

obtained confession into evidence] did not contribute to

the verdict obtained*” (App. at 23a). 391 F.3d at 475

(quoting Mitchell v. Esparza, 540 U.S. 12, 17-18 [2003]

[per curiam]; brackets and emphasis by Second Circuit).

The two judges of the Second Circuit majority charac-

terized the other evidence of defendant’s guilt as “weak”

(App. at 10a, 15a). 391 F.3d at 468, 471. The Second

Circuit majority considered it a “fact” that “a written

confession can never truly be said to be merely cumu-

lative” (App. at 21a). 391 F.3d at 474. The Second Cir-

cuit granted habeas relief for the asserted trial error

without determining that the error was prejudicial under

13

the standard of Brecht v. Abrahamson. In addition,

rejecting the State’s argument that there was no Miranda

error in admitting defendant’s confession to the police,

the Second Circuit majority held that admission of

defendant’s confession “constitutes a violation of

Zappulla’s due process rights” (App. at 22a). 391 F.3d at

474.

Dissenting, Judge Raggi agreed with the district court

that the Appellate Division’s harmless error determina-

tion was not objectively unreasonable (App. at 25a). 391.

F.3d at 476. Judge Raggi found that the evidence of

defendant’s guilt was “overwhelming” and considered it

“entirely reasonable for the Appellate Division to have

cited [the surveillance] evidence, together with [Aaron]

Cohen’s testimony and Zappulla’s possession of the

motel room key, as overwhelming proof, independent of

the signed confession, that Zappulla was with Scarpati at

and about the time of her death” (App. at 28a, 31a). 391

F.3d at 477, 479. Noting the blood and DNA evidence

linking defendant to Scarpati’s murder, Judge Raggi

found that the circumstantial evidence of defendant’s

guilt was “remarkably strong” and that there was direct

proof in the form of Zappulla’s admission to fellow

inmate Felix Pabon, which was “considerably more

detailed about events related to Scarpati’s murder than

his signed confession to the police” and was extensively

corroborated by other evidence (App. at 32a-37a). 391

F.3d at 479-82. Judge Raggi also did not join the holding

of the Second Circuit majority that Miranda mandated

suppression of Zappulla’s statements regarding the

Scarpati murder (App. at 54a). 391 F.3d at 490.

On February 9, 2005, the Second Circuit denied the

State’s petition for a rehearing en banc. App. at 87a-88a.

This petition for certiorari challenges the decision of

the court of appeals.

14

REASONS FOR GRANTING THE WRIT

The State is seeking a writ of certiorari because this

case presents two important, controversial, and recurring

questions of federal law, each of which was resolved

incorrectly by the court of appeals and warrants review

by this Court.

First, the Second Circuit majority concluded that

admission of defendant’s confession to the police vio-

lated his rights under Miranda vy. Arizona, 384 U.S. 436

(1966), primarily because defendant made that statement

24 hours after he had received Miranda warnings. The

question of when Miranda warnings must be repeated

after the passage of time is a recurring one, and the

Second Circuit’s decision in this case contributes to a

conflict among the federal circuit courts on this issue.

This case presents the Court with an opportunity to

clarify the factors that courts should weigh in evaluating

claims that the passage of time undermined the effec-

tiveness of Miranda warnings.

Second, the State is seeking a writ of certiorari

because this case presents a highly controversial ques-

tion of widespread significance concerning the appli-

cation of Brecht v. Abrahamson, 507 U.S. 619 (1993), in

habeas cases subject to the standard of review estab-

lished by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”’). After holding that it was

unreasonable under 28 U.S.C. § 2254(d)(1) for the state

appellate court to determine that admission of defen-

dant’s confession was harmless error, the Second Circuit

granted habeas relief without inquiring if the alleged

trial error was prejudicial under the Brecht test. If the

Second Circuit was correct in holding that defendant’s

confession was obtained in violation of Miranda, then

this case squarely presents the Court with the issue of

15

whether the Brecht test applies to post-AEDPA claims of

constitutional trial error. The Second Circuit’s decision

to jettison Brecht is at odds with the intent underlying

AEDPA to provide deference to state court decisions and

with the interests of comity and finality emphasized by

the Court in Brecht. The decision in this case also puts

the Second Circuit at odds with most federal circuit

courts that have considered the issue. The State main-

tains that, contrary to the Second Circuit’s conclusion,

the state court’s harmless error determination was not an

unreasonable application of the harmless error standard

of Chapman v. California, 386 U.S. 18 (1967). But even

if the state court’s application of Chapman was unrea-

sonable, then the proper application of the Brecht stan-

dard, which is more favorable to the State than the

Chapman standard, would compel the denial of habeas

relief.

Because the Second Circuit’s decision to grant habeas

relief presents these two important issues, the State’s

petition for a writ of certiorari should be granted.

I. The Second Circuit’s Decision Presents an

Important and Recurring Question, on Which

the Federal Courts of Appeals Have Reached

Conflicting Results, of When a Lapse of

Time Between the Administration of Miranda

Warnings and a Suspect’s Statement Undermines

the Effectiveness of the Warnings and Renders

the Statement Inadmissible.

This case presents this Court with the opportunity to

provide guidance on an important and recurrent question

under Miranda v. Arizona, 384 U.S. 436 (1966), namely,

under what circumstances a lapse of time between

Miranda warnings and a suspect’s custodial statement

renders the warnings ineffective and the statement inad-

16

missible. Federal courts “have generally rejected a per se

rule as to when a suspect must be readvised of his rights

after the passage of time or a change in questioners.”

United States v. Andaverde, 64 F.3d 1305, 1312 (9th Cir.

1995), cert. denied, 516 U.S. 1164 (1996); see United

States v. Weekley, 130 F.3d 747, 751 (6th Cir. 1997). In

fact, “a number of circuits have ruled that re-warning is

not required simply because time has elapsed.” Weekley,

130 F.3d at 751; see, e.g., United States v. Rodriguez-Pre-

ciado, 399 F.3d 1118 (9th Cir. 2005) (interval of sixteen

hours between Miranda warnings and second interroga-

tion of defendant did not render defendant’s statements

inadmissible); United States v. Pruden, 398 F.3d 241 (3d

Cir. 2005) (confession was admissible where about

twenty hours passed between Miranda warnings and

questioning that led to confession).

In contrast to the Second Circuit’s holding in this

case, the Ninth Circuit has repeatedly held that confes- .

sions made a day or more after Miranda warnings did

not have to be suppressed. See Andaverde, 64 F.3d at

1313 (one-day interval between Miranda warnings and

statement to parole officer); Puplampu y. United States,

422 F.2d 870 (9th Cir.) (statements made two days after

Miranda warnings), cert. denied, 399 U.S. 914 (1970);

Maguire v. United States, 396 F.2d 327 (9th Cir. 1968)

(Miranda warnings given three days before defendant’s

interrogation were sufficient), cert. denied, 393 U.S.

1099 (1969); see also McClain v. Hill, 52 F. Supp. 2d

1133, 1141 (C.D. Cal. 1999) (state court’s rejection of

claim that Miranda warnings should have been repeated

was neither contrary to, nor unreasonable application of,

federal law under 28 U.S.C. § 2254[d]; “the mere pas-

sage of two days between the time petitioner was

informed of and waived his Miranda rights and the time

he made his incriminating statement does not violate the

Fifth Amendment’’).

2 eEEEE—————————en =

17

Other federal courts of appeals have held that even the

lapse of a week or more between Miranda warnings and

a defendant’s statement did not render the statement

inadmissible at trial. In Martin v. Wainwright, 770 F.2d

918 (llth Cir. 1985), modified on other grounds, 781

F.2d 185 (11th Cir.), cert. denied, 479 U.S. 909 (1986),

the Eleventh Circuit held that failure to rewarn a defen-

dant prior to his confession on July 11, after Miranda

warnings had been given on July 4, did not render his

confession inadmissible. 770 F.2d at 930-31. Similarly,

in Biddy v. Diamond, 516 F.2d 118 (5th Cir. 1975), cert.

denied, 425 U.S. 950 (1976), the Fifth Circuit held that

statements were properly admitted although they were

made twelve days after Miranda warnings were given.

Id. at 122.

Decisions of state courts of last resort likewise illus-

trate “the lack of consensus regarding when renewed

Miranda warnings must be given.” State v. DeWeese, 213

W. Va. 339, 352, 582 S.E.2d 786, 799 (2003) (collecting

cases and concluding, as matter of state public policy,

that lapse of seven days between initial waiver of rights

and subsequent interrogation required renewed warn-

ings). Compare Koger v. State, 117 Nev. 138, 17 P.3d

428 (2001) (incriminating statements made during inter-

view twelve days after Miranda warnings were admis-

sible); Osborne v. State, 263 Ga. 214, 217, 430 S.E.2d

576, 578 (1993) (warnings and waiver given on day of

arrest had not grown stale by next day), cert. denied, 510

U.S. 1170 (1994); and People v. Mickle, 54 Cal.3d 140,

170, 814 P.2d 290, 305 (1991) (no Miranda violation,

where rights were given within 36 hours of statement),

cert. denied, 503 U.S. 988 (1992) with Commonwealth v.

Wideman, 460 Pa. 699, 708-09, 334 A.2d 594, 599

(1975) (lapse of twelve hours after warnings required

suppression of confession); aad Commonwealth vy.

Murray, 359 Mass. 541, 544-46, 269 N.E.2d 641, 644

18

(1971) (waiver of rights not established, where there was

lapse of two days between warnings and inculpatory

statements).

Although the issue of when a lapse of time requires

Miranda warnings to be repeated or a statement to be

suppressed has produced conflicting results among fed-

eral and state courts, this Court itself has not addressed

the issue in over twenty years. In Wyrick v. Fields, 459

U.S. 42 (1982) (per curiam), the Court overturned an

Eighth Circuit decision that had granted a state criminal

defendant a writ of habeas corpus on the ground that the

defendant’s Fifth Amendment right to have counsel pre-

sent at an interrogation had been violated. After waiving

his Miranda rights and taking a polygraph test, the

defendant made incriminating statements in response to

post-test questioning by the government polygrapher.

The Wyrick Court, endorsing a “totality of the circum-

stances” test, determined that Miranda warnings did not

need to be repeated to the defendant when he was ques-

tioned after the polygraph test. Jd. at 47. This Court

observed that the defendant validly waived his right to

have counsel present at the post-test questioning “unless

the circumstances changed so seriously that his answers

no longer were voluntary, or unless he no longer was

making a ‘knowing and intelligent relinquishment or

abandonment’ of his rights.” Jd. at 47-49 (quoting

Edwards vy. Arizona, 451 U.S. 477, 482 [1981]). In sup-

port of its holding, the Court noted that “the questions

put to [the defendant] after the examination would not

have caused him to forget the rights of which he had

been advised and which he had understood moments

before.” 459 U.S. at 49.

The lapse of time involved in Wyrick, however, was

not substantial, and after Wyrick, no decision of this

Court has provided any clear guidance on the present

19

issue. Thus, the factors that are significant to the “total-

ity of the circumstances” test remain uncertain for

courts facing the question of whether a lapse of time

undermines the effectiveness of Miranda warnings and

renders a defendant’s statement inadmissible. This

uncertainty has led to conflict among the circuits. Fur-

thermore, it is of utmost practical importance for police

and other law enforcement officers who are adminis-

tering Miranda warnings to have some “concrete con-

stitutional guidelines,” see Miranda, 384 U.S. at 442, to

specify when, and to what degree, a suspect must be

reminded of his rights.

The Second Circuit held that admission of defendant’s

confession violated his due process rights (App. at 22a).

391 F.3d at 474. In its opinion, the Second Circuit

majority appeared to adopt, without further analysis, the

State appellate court’s rationale for finding Miranda

error: (1) that 24 hours elapsed between Miranda warn-

ings and questioning about Scarpati’s murder; (2) that

defendant was not in continuous police custody between

the warnings and the later interrogation; and (3) that the

second interrogation concerned a crime unrelated to that

for which defendant was initially arrested (App. at 22a).

391 F.3d at 474. But each of these facts fails to support

the Second Circuit’s conclusion that there was a

Miranda violation.

First, there would, in general, be no reason to believe

that the passage of 24 hours “caused [defendant] to for-

get the rights of which he had been advised and which

he had understood.” See Wyrick, 459 U.S. at 49. But in

this case, just before defendant made his statement,

Detective McMahon explicitly reminded defendant that

Detective Delahunt had previously advised defendant of

his rights, and Detective McMahon told defendant that if

he wanted a lawyer, one would be obtained and the

20

police would not speak to defendant (Delahunt: 83-84;

McMahon: 95, 100-01).' As the state hearing court found

when it denied the motion to suppress the statement

(App. at 8la, 84a-85a), the circumstances show that

defendant was fully aware of his Miranda rights when he

spoke to the police (see App. at 53a & n.16, 391 F.3d at

490 & n.20 [Raggi, J., dissenting]). Thus, in this case,

the passage of 24 hours after the administration of

Miranda warnings was particularly inconsequential.

Second, even assuming that continuity of custody may

be a factor to consider in evaluating whether Miranda

warnings remain effective, defendant's custody was

interrupted only because defendant briefly escaped from

the police and ran away; his custody resumed as soon as

his police escort caught up to him at an intersection a

short distance away. Thus, the break in custody in this

case was at most nominal and provided no reasoned

basis for the Second Circuit’s conclusion that a Miranda

violation occurred (see App. at 52a, 391 F.3d at 490

[Raggi, J., dissenting]).

Third, the subject matter of the second police inter-

rogation provided no sufficient basis for finding a

Miranda violation. See United States ex rel. Henne v.

Fike, 563 F.2d 809, 814 (7th Cir. 1977), cert. denied,

434 U.S. 1072 (1978). This Court has never held that

Miranda warnings are specific to a particular investi-

gation or offense. To the contrary, the Court has resisted

the notion that the scope of Miranda warnings or a sus-

pect’s waiver of Miranda rights is limited by the subject

matter of an interrogation. See Colorado v. Spring, 479

U.S. 564, 57°. > (1987) (failure of police to inform sus-

1

Numbers in parentheses refer to pages of the suppression

hearing transcript; names preceding page numbers identify the wit-

nesses whose testimony is cited.

21

pect of subject matter of interrogation did not undermine

Miranda warnings or suspect’s waiver).

Therefore, the petition for certiorari should be granted

to clarify when the passage of time between Miranda

warnings and a suspect’s statement requires a repetition

of the warnings in order to render the statement admis-

sible.

II. The Second Circuit’s Decision Presents an

Important and Recurring Question, on Which the

Federal Courts of Appeals Have Reached

Conflicting Results, of Whether the Brecht

Standard of Harmless Error Applies on Habeas

Corpus Review Under 28 U.S.C. § 2254, as

Amended by the Antiterrorism and Effective

Death Penalty Act of 1996.

Regardless of whether this Court grants certiorari on

the Miranda issue, this case presents a separate question

of enormous significance that should be resolved by the

Court: whether the harmless error standard of Brecht v.

Abrahamson, 507 U.S. 619 (1993), continues to apply on

habeas review after the enactment of the Antiterrorism

and Effective Death Penalty Act of 1996. In this case,

the Second Circuit decided to grant habeas relief with-

out applying the Brecht standard of harmless error

analysis or deciding whether application of that standard

would have led to a different result. The denial to the

State of the benefit of the Brecht standard presents a

serious conflict with the congressional intent underlying

the 1996 amendments to the habeas statute and with the

decisions of other federal courts of appeals. Moreover,

the proper resolution of this issue would affect the deter-

mination of countless cases in federal court, because the

issue arises in every case on federal habeas review of a

state conviction in which the petition was filed after the

22

effective date of the 1996 amendments and in which the

State argues, in response to at least one of the habeas

petitioner’s claims, than an alleged error was harmless.

In Brecht v. Abrahamson, 507 U.S. 619 (1993), this

Court held that federal habeas relief could not be granted

on the basis of a prisoner’s meritorious claim of uncon-

stitutional trial error unless the error had a substantial

and injurious effect or influence in determining the

jury’s verdict. Jd. at 638-39 (adopting standard set forth

in Kotteakos v. United States, 328 U.S. 750, 776 [1946]);

cf. Chapman vy. California, 386 U.S. 18, 24 (1967) (test

of harmless error on direct review is whether it appears

“beyond a reasonable doubt that the error complained of

did not contribute to the verdict obtained”). In adopting

the Brecht standard, the Court noted that state courts

“often occupy a superior vantage point from which to

evaluate the effect of trial error” and observed that “it

scarcely seems logical to require federal habeas courts to

engage in the identical approach to harmless-error

review that Chapman requires state courts to engage in

on direct review.” Brecht, 507 U.S. at 636. The Court

explained that concerns of finality, comity, and feder-

alism underlay its decision in Brecht. Id. at 634-36. To

find an error harmless under Brecht, the evidence need

not be “overwhelming,” but only “weighty.” Jd. at 639

(finding error harmless, where evidence of defendant’s

guilt was, “if not overwhelming, then certainly

weighty”).

The federal habeas statute, as amended by AEDPA,

provided a “new, highly deferential standard for evalu-

ating state court rulings.” Lindh v. Murphy, 521 U.S.

320, 333 n.7 (1997). Thus, the rationale for the Brecht

standard is no less valid after AEDPA than it was before

AEDPA. “Nothing in the AEDPA suggests that it is

appropriate to issue writs of habeas corpus even though

23

any error of federal law that may have occurred did not

affect the outcome.” Aleman vy. Sternes, 320 F.3d 687,

690 (7th Cir. 2003). On the contrary, “[t]he concerns that

prompted the Court in Brecht to adopt a less stringent

standard for harmless error assessment on collateral

review are the same ones that led Congress to pass

AEDPA.” Herrera v. Lemaster, 301 F.3d 1192, 1198

(10th Cir. 2002) (en banc), cert. denied, 537 U.S. 1197

(2003).

Indeed, the AEDPA amendments “elevated the impor-

tance of th[e] principle [that constitutional error in a

State criminal trial does not in itself justify federal

habeas relief] and widened the area within which federal

habeas courts must defer to state court decisions.” Sanna

v. DiPaolo, 265 F.3d 1, 6 (1st Cir. 2001). As the Court

observed in Brecht, “[o]verturning final and presump-

tively correct convictions on collateral review because

the State cannot prove that an error is harmless under

Chapman undermines the States’ interest in finality and

infringes upon their sovereignty over criminal matters.”

Brecht, 507 U.S. at 637.

The Second Circuit’s decision to abandon Brecht in

this case conflicts with the decisions of six other federal

circuit courts, which have decided that Brecht applies to

post-AEDPA claims involving harmless error questions

on habeas review, whether or not an unreasonable-

application-of-Chapman step is also required; and the

Second Circuit’s decision is consistent with only one

other federal circuit court. Compare Jones vy. Polk, 401

F.3d 257, 265 (4th Cir. 2005); Allen v. Lee, 366 F.3d 319,

322 (4th Cir. 2004) (en banc) (state court’s finding of

harmless error did not satisfy AEDPA standard, and

error was not harmless under Brecht); Cotton v. Cockrell.

343 F.3d 746, 750 (5th Cir. 2003) (habeas petitiower

must show not only that state court’s decision was cen-

24

trary to or unreasonable application of clearly estab-

lished federal law, but also that it was harmful under

Brecht), cert. denied, 540 U.S. 1186 (2004); Aleman v.

Sternes, 320 F.3d 687, 690-91 (7th Cir.) (Brecht survived

AEDPA and figures with Chapman in analysis of habeas

claims), cert. denied, 539 U.S. 960 (2003); Robertson v.

Cain, 324 F.3d 297, 307 (Sth Cir. 2003); Herrera v.

Lemaster, 301 F.3d 1192, 1200 (10th Cir. 2002) (en

banc) (habeas court is to apply Brecht “when a state

court decides a constitutional issue contrary to control-

ling Supreme Court authority or unreasonably applies

that authority”), cert. denied, 537 U.S. 1197 (2003);

Ford v. Curtis, 277 F.3d 806 (6th Cir. 2002) (applying

Brecht and concluding that trial court’s failure to provide

limiting instruction for admitted hearsay statements did

not have harmful or injurious effect); Sanna v. DiPaolo,

265 F.3d 1, 14-15 (lst Cir. 2001) (noting that First

Circuit has “consistently employed Brecht in cases aris-

ing under AEDPA”); and Nevers v. Killinger, 169 F.3d

352, 371 (6th Cir.) (Brecht standard “precisely captures

Congress's intent as expressed in AEDPA”), cert.

denied, 527 U.S. 1004 (1999), abrogated on other

grounds, Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.

2000) with Whitmore v. Kemna, 213 F.3d 431, 433 (8th

Cir. 2000) (expressing doubt as to Brecht’s application

after AEDPA in case where state court performed

Chapman analysis, but concluding that denial of habeas

relief was warranted under both standards).

In addition, the Second Circuit’s decision conflicts

with the decisions of federal circuit courts that have held

that federal prisoners seeking habeas relief under the

provisions of 28 U.S.C. § 2255 may not obtain habeas

relief unless the claimed error is not harmless under the

Brecht standard. See, e.g., United States v. Montalvo,

331 F.3d 1052, 1058 (9th Cir. 2003) (holding that

“Brecht’s harmless error standard applies to habeas cases

ee ee

MME bet age ge ee Oe hy ee) ee ee ee a ee ee

25

under section 2255, just as it does to those under section

2254”), cert. denied, 541 U.S. 1011 (2004); Ross v.

United States, 289 F.3d 677 (11th Cir. 2002); Murr v.

United States, 200 F.3d 895, 906 (6th Cir. 2000). It is

anomalous, and offensive to comity and federalism, for

a federal court to set aside a New York State conviction

without testing the prisoner’s claim of constitutional trial

error for prejudice under the Brecht standard, when fed-

eral courts are according federal convictions the greater

protection of testing under that standard.

The Second Circuit majority erred in holding that it

could dispense with the Brecht test and grant habeas

relief solely on the basis of its holding that the Appellate

Division’s harmless error determination constituted an

unreasonable application of the Chapman test. The lan-

guage of section 2254(d) of the habeas statute, as

amended by AEDPA, does not purport to limit the appli-

cation of Brecht. “The words of the statute simply can-

not be read to bar federal courts from further

examination and review of state habeas claims based on

additional standards established by Supreme Court

precedent, especially when those standards are not

inconsistent with the language and purpose of AEDPA.”

Robertson v. Cain, 324 F.3d 297, 306 (Sth Cir. 2003).

The Second Circuit cited Mitchell v. Esparza, 540 U.S.

12 (2003) (per curiam), in support of the Second

Circuit's decision to abandon Brecht (see App. at 7a-8a;

391 F.3d at 467), but the Second Circuit's interpretation

of Mitchell is incorrect. The Second Circuit asserted that

Mitchell “arguably resolved” uncertainty as to whether

Brecht still applied after AEDPA or habeas courts should

instead inquire whether state courts unreasonably

applied the Chapman standard (App. at 7a). 391 F.3d at

467. However, this Court did not decide in Mitchell that

the Brecht standard no longer applied after AEDPA.

26

Rather, in Mitchell, this Court concluded that the state

court did not unreasonably apply Chapman and that con-

sequently habeas relief was unwarranted. 540 U.S. at 19.

In light of that holding, it was neither necessary nor pru-

dential for the Court to decide whether, if the state

court’s harmless error determination constituted an

unreasonable application of Chapman, the Brecht test

should apply to habeas claims of trial error under

AEDPA. Thus, the Second Circuit’s decision to abandon

Brecht misconstrued Mitchell while ignoring this Court’s

post-AEDPA application of Brecht in Penry v. Johnson,

532 U.S. 782, 795-96 (2001). See also Early v. Packer,

537 U.S. 3, 19-11 (2002) (per curiam) (suggesting that

inquiry into whether state court’s decision had sub-

stantial and injurious effect on verdict would have been

proper if Ninth Circuit had first correctly found that

state court decision was contrary to clearly established

Supreme Court law, but holding that state court’s deci-

sion was neither contrary to nor unreasonable applica-

tion of clearly established federal law).

The ruling of the Second Circuit in this case not only

undermines Brecht, a mainstay of this Court’s habeas

jurisprudence, but also subverts AEDPA’s reforms by

fostering an interpretation of the statute under which

state court convictions will be treated with less defer-

ence, not more. Indeed, the path the Second Circuit has

taken leads to incongruous results on federal habeas

review: state convictions would receive less deference if

AEDPA applies than if AEDPA does not apply, and fed-

eral convictions would receive greater deference than

State convictions.

Moreover, the Second Circuit’s failure to apply Brecht

could certainly have affected the decision to grant

habeas relief and places the controversial question of

Brecht’s applicability squarely in issue in this case. The

ee een ened

27

admission of defendant’s confession to the police did not

have a substantial and injurious effect or influence on

the verdict. The Appellate Division, concluding that the

evidence of defendant’s guilt was overwhelming and that

the admission of the confession to police did not con-

tribute to the verdict, succinctly described the other evi-

dence as follows:

A witness testified that the defendant was with

Scarpati [the victim] in room 234 of the Golden

Gate Inn in the days and hours immediately before

the crime. Surveillance videotape from the motel

showed the defendant leaving and then reentering

the motel shortly before the police arrived and

arrested him on March 17, 1998. Expert testimony

indicated that Scarpati’s death occurred sometime

between the evening of March 16 and the early

morning of March 17. The key to Room 234, the

room where Scarpati’s body was found, was recov-

ered from defendant’s person after his arrest.

D.N.A. testing of blood found on the defendant’s

clothing revealed that the blood was Scarpati’s. In

addition, the defendant admitted to an inmate, who

was incarcerated with the defendant pending trial,

that when he choked Scarpati “blood came out.”

(App. at 78a-79a). 282 A.D.2d at 698, 724 N.Y.S.2d at

436.

In her dissent in the Second Circuit, Judge Raggi

agreed with the district court and the Appellate Division

that the other evidence of defendant’s guilt was over-

whelming. Judge Raggi considered it “entirely reason-

able for the Appellate Division to have cited [the

surveillance] evidence, together with [Aaron] Cohen’s

testimony and Zappulla’s possession of the motel room

key, as overwhelming proof, independent of the signed

confession, that Zappulla was with Scarpati at and about

28

the time of her death” (App. at 31a). 391 F.3d at 479.

Judge Raggi further noted that “[b]ecause any other con-

clusion about the blood evidence is too improbable to

make sense, it was not ‘objectively unreasonable’ for the

Appellate Division to view this compelling forensics

evidence of Zappulla’s guilt as further support for a find-

ing of harmless error” (App. at 34a). 391 F.3d at 480.

Judge Raggi noted that, although the circumstantial evi-

dence of Zappulla’s guilt was “remarkably strong,” the

prosecution had also offered direct proof in the form of

Zappulla’s admission to fellow inmate Felix Pabon (App.

at 35a), 391 F.3d at 481, which was “considerably more

detailed about events related to Scarpati’s murder than

his signed confession to the police” (App. at 37a). 391

F.3d at 482. Under these circumstances, application of

the Brecht test would compel the conclusion that any

error in admitting defendant’s confession to the police

was harmless.

Accordingly, this Court should grant a writ of certio-

rari in this case to answer this important question, and to

resolve the conflict among the federal courts of appeals,

concerning the continued applicability of the Brecht

harmless error standard on habeas corpus review.

3

3

ET Cy Th RES ET Sore ta

29

CONCLUSION

THE PETITION FOR A WRIT OF CERTIORARI

SHOULD BE GRANTED.

Respectfully submitted,

CHARLES J. HYNES

District Attorney

Kings County

LEONARD JOBLOVE*

CAMILLE O’ HARA GILLESPIE

Assistant District Attorneys

Kings County District Attorney’s Office

350 Jay Street

Brooklyn, New York 11201-2908

(718) 250-2511

* Counsel of Record for Petitioner

May 10, 2005

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