05-4196-pr

Acosta v. Artuz

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

 

August Term, 2007

(Argued: April 7, 2008 Decided: August 4, 2009)

Docket No. 05-4196-pr

 

VICTOR ACOSTA,

Petitioner-Appellant,

—v.— 

C. ARTUZ, Superintendent, Green Haven Correctional Facility,

Respondent-Appellee.

____________________

Before:

WALKER, CABRANES, and RAGGI, Circuit Judges.

 

Appeal from the denial of a petition for a writ of habeas corpus filed by a New York

State prisoner who challenges his murder conviction on the ground that the trial jury was

allowed to hear a confession that he made in violation of rights recognized in Miranda v.

Arizona, 384 U.S. 436 (1966), and Rhode Island v. Innis, 446 U.S. 291 (1980).

AFFIRMED.
2

____________________

 

MONICA R. JACOBSON, New York, New York, for Petitioner-Appellant.

MORGAN J. DENNEHY (Leonard Joblove, Victor Barall, on the brief), on behalf

of Charles J. Hynes, District Attorney, Kings County, Brooklyn, New

York, for Respondent-Appellee.

 

REENA RAGGI, Circuit Judge:

Petitioner Victor Acosta was convicted after a jury trial on one count of murder in the

second degree on a theory of felony murder. See N.Y. Penal Law § 125.25[3]. Presently

incarcerated serving an indeterminate prison term of twenty-four years to life, Acosta appeals

from the July 20, 2005 judgment of the United States District Court for the Eastern District

of New York (David G. Trager, Judge), which denied his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. See Acosta v. Artuz, 375 F. Supp. 2d 173 (E.D.N.Y. 2005).

Acosta claims, inter alia, that his conviction is infected by constitutional error because the

jury was allowed to hear a confession made by Acosta in purported violation of Miranda v.

Arizona, 384 U.S. 436 (1966), and Rhode Island v. Innis, 446 U.S. 291 (1980). We granted

a certificate of appealability on two issues related to this claim: (1) whether Acosta

adequately exhausted state remedies before seeking federal habeas relief by “fairly

presenting” his Miranda/Innis claim to the state courts, and (2) whether Acosta demonstrated
 This opinion generally does not cite to transcript pages because, with limited 1

exceptions, the relevant hearing and trial transcripts were not included in the record on

appeal. In response to this court’s order directing submission of the transcripts, the parties

advised that they could no longer be located. The court then issued an order indicating that

we would assume the accuracy of the transcript excerpts cited in the parties’ briefs and the

district court’s opinion unless either party objected within thirty days. See Acosta v. Artuz,

No. 05-4196-pr (2d Cir. Sept. 22, 2008). No objection having been raised, we rely on the

parties’ briefs and the opinion below in reconstructing the record of the state court

proceedings in this action. 

3

Miranda/Innis error warranting habeas relief. We answer both questions in the negative and,

accordingly, affirm the district court judgment.

I. Background

A. The Murder of Dennis Cetter

Yvonne Martinez, a Brooklyn prostitute, testified that sometime between 7:00 p.m.

and 8:00 p.m. on November 1, 1991, Victor Acosta, whom she knew as “Green Eyes,” told

her that he “was going to catch a herb,” street slang that Martinez understood to mean that

Acosta was going to rob someone. Soon thereafter, Acosta entered an abandoned factory 1

building at North 10th Street and Kent Avenue and, armed with a knife, demanded money

from Debra Perry, another prostitute who lived in the building, and Dennis Cetter, the man

with whom Perry had spent part of the day.

Perry testified that she knew Acosta from the neighborhood, having seen him almost

daily for the last month, and having used drugs with him. As Acosta searched through the

couple’s clothing looking for money, Perry reached for a baseball bat, but Cetter took it from
4

her and used the bat to hit Acosta. A fight ensued during which Acosta stabbed Cetter

thirteen times, inflicting wounds that would ultimately cause Cetter’s death. 

Darryl Higgs, a homeless drug user who lived with Perry at the factory and who was

nearby at the time of the incident, testified to hearing Perry screaming and, moments later,

seeing Acosta – whom he had known for several years as “Green Eyes” – flee the building.

Soon after, Cetter also emerged from the building, covered in blood, and collapsed into

Higgs’s arms. Perry was hysterical and screaming about “Green Eyes.”

Yvonne Martinez testified that approximately fifteen minutes after Acosta had first

told her of his robbery plans, defendant returned to where they had spoken and breathlessly

stated that he had “just finished stabbing a guy up” eight to ten times, likely killing him.

Acosta gave Martinez a blood-stained knife and told her to clean it. Not wanting anything

to do with the weapon, Martinez gave it to a friend, Patrick Wilson, who would give it to

investigating police officers the following day, November 2.

On the morning of November 3, police arrested Acosta for Cetter’s murder. At a

station house lineup conducted the same day, Higgs, Perry, and Martinez each positively

identified Acosta as the person they had implicated in the murder. Later that day, Acosta

himself admitted to a police detective that he had stabbed Cetter but explained that his

actions were taken in self-defense. 
5

B. State Court Proceedings

1. The Suppression Hearing

Acosta was charged by a Kings County grand jury with two counts of Murder in the

Second Degree, see N.Y. Penal Law § 125.25[1], [3]; one count of Robbery in the First

Degree, see id. § 160.15[3]; and one count of Criminal Possession of a Weapon in the Fourth

Degree, see id. § 265.01[2]. Prior to trial, Acosta moved, inter alia, to suppress his postarrest admission alleging that it was the fruit of an unlawful arrest and had been obtained in

violation of his right to counsel. Acosta did not present any evidence or submit an affidavit

in support of his motion; nor did he testify at the hearing held to address the motion.

At that hearing, Police Detectives Nancy Gaffney and Ramon Aguilar testified to how

they came to identify Acosta as Cetter’s likely killer and to place Acosta under arrest.

Detective Aguilar further stated that, after arrest, Acosta was advised of his Miranda rights

when he was brought to the police precinct at approximately 5:30 p.m. Because Acosta

invoked his right to counsel, police questioning was limited to securing pedigree information.

See generally Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (recognizing “routine

booking question exception which exempts from Miranda’s coverage questions to secure the

biographical data necessary to complete booking or pretrial services” (internal quotation

marks omitted)). Detective Aguilar testified that between 6:00 p.m. and 7:00 p.m. the police

placed Acosta in a lineup that was viewed separately by Perry, Higgs, and Martinez, each of
6

whom positively identified Acosta. 

Approximately two hours later, when the identifying witnesses were leaving the

station house, Detective Aguilar took Acosta to a second-floor bathroom to ensure against

any contact between the defendant and the witnesses. At the hearing, Detective Aguilar

testified that he did not recall telling Acosta that he had been identified in the lineup. At

some point while Acosta was in the bathroom, he asked Detective Aguilar if he could speak

with a prosecutor. After consulting with an assistant district attorney, Detective Aguilar told

Acosta that the prosecutor could not speak to him in the absence of defense counsel. Without

any prompting, Acosta then stated that he had entered the abandoned factory building on

November 1 intending to commit robbery and that he had stabbed Cetter, but explained that

he had acted in self-defense after Cetter had attacked him with a baseball bat. Acosta further

told Aguilar that he had been smoking crack cocaine on November 1 and that he thought

Cetter and Perry had been smoking crack as well.

Justice James G. Starkey found the prosecution witnesses credible and denied

Acosta’s motion to suppress his confession. The judge specifically found that the police had

taken Acosta to the bathroom to avoid contact with the identifying witnesses and that

Acosta’s admission was made “without any interrogation or invitation to speak on the part

of Detective Aguilar.” Justice Starkey further found that Acosta had “meant [the statement]

to be exculpatory,” as evidenced by Acosta’s explanation that his actions were taken solely
7

in self-defense.

2. Trial and Conviction

Acosta was tried in April 1993 before Justice Jerome M. Kay and a jury. Various

civilian witnesses, including Higgs, Perry, and Martinez, testified to their knowledge of

events relating to Cetter’s murder. Government witnesses testified to the cause of Cetter’s

death, the recovery of the knife that killed him, the lineup identification, and other aspects

of the investigation. Of particular relevance to this appeal, Detective Aguilar testified – for

the first time – on cross-examination that at some unspecified time prior to the bathroom

confession, he had informed Acosta that he had been identified in the lineup: 

Q: When was the lineup completed?

A: Completed about 6:26.

Q: After the lineup was completed, did you then have a

conversation with Mr. Acosta about what had taken

place?

A: Yes, that is correct. 

[. . . ]

Q: So, how long after the lineup was this statement [i.e.,

Acosta’s confession]?

A: What, about two hours after the lineup.

Q: So, during those two hours, you had no conversation

whatsoever with him?

A: No. Other than some pedigree questions, like I
8

mentioned, concerning date of birth, height, and address,

if any. He was hungry and wanted something to eat.

Q: Detective, didn’t you tell Mr. Acosta that he had been

picked out in that lineup?

A: Yes.

Q: That you now had witnesses that were identifying him as

the perpetrator of this crime?

A: I indicated to the defendant that he was picked out in the

lineup.

Q: At that point, did you not ask him again whether he now

wished to explain his actions and what he did that night?

A: Oh yes, he did want to talk. He wanted to talk with the

District Attorney.

Q: He did want to talk?

A: He did.

Q: So your testimony is that now he changed his mind after

you told him that he had been picked out of the lineup

and wanted to talk to the District Attorney?

A: Well, he changed his mind in the first case. He said he

wanted a lawyer and wanted to [make] a phone call.

After the lineup was conducted and he was moved from

the cell room and into the bathroom, he indicated that he

wanted to talk to the Brooklyn D.A.

Q: And how did he indicate that to you, just out of the clear

blue sky said to you, “Detective, I want to now talk to the

D.A.?”

A: Yes, I believe so. Yes.
9

Trial Tr. 265-67. Defense counsel did not argue to the trial court that Aguilar’s testimony

about the disclosure to Acosta of the lineup identification warranted reconsideration of the

suppression motion. He did not move to strike Acosta’s confession, about which the jury had

already heard. He did not move for a mistrial. 

The jury convicted Acosta of murder in the second degree on a theory of felony

murder. See N.Y. Penal Law § 125.25[3]. On June 15, 1993, the court sentenced Acosta to

an indeterminate prison term of twenty-four years to life. 

3. Appellate Proceedings

With the assistance of new counsel on direct appeal, Acosta challenged his conviction

on myriad grounds, arguing that (1) the jury should not have been allowed to hear his

bathroom confession, (2) the lineup identifications were secured in violation of his right to

counsel, (3) the lineup procedure was impermissibly suggestive, (4) exculpatory material was

withheld from the defense, (5) the trial court impermissibly restricted his right of crossexamination, (6) the prosecutor’s summation deprived him of a fair trial, (7) the court gave

an improper “no inference” charge, (8) trial counsel was constitutionally ineffective, and (9)

the trial evidence was legally insufficient to support conviction. 

On February 20, 1996, the Appellate Division, Second Department, affirmed Acosta’s

conviction. The ruling states in full:

Appeal by the defendant from a judgment of the Supreme Court,

Kings County (Kay, J.), rendered June 15, 1993, convicting him

of murder in the second degree, upon a jury verdict, and
10

imposing sentence. The appeal brings up for review the denial,

after a hearing (Starkey, J.), of those branches of the defendant’s

omnibus motion which were to suppress a statement made by

him to the police and identification testimony.

Ordered that the judgment is affirmed.

The hearing court properly denied suppression of the

defendant’s oral statement since that statement was voluntarily

and spontaneously made (see, People v. Rivers, 56 N.Y.2d 476).

Additionally, there is no merit to the defendant’s contention that

he was improperly denied counsel at the pre-accusatory lineup

(see, People v. LaClere, 76 N.Y.2d 670; People v. Hernandez,

70 N.Y.2d 833; People v. Hawkins, 55 N.Y.2d 474, cert. denied

459 U.S. 846). 

Viewing the evidence in the light most favorable to the

prosecution (see, People v. Contes, 60 N.Y.2d 620), we find that

it was legally sufficient to establish the defendant’s guilt beyond

a reasonable doubt. Moreover, upon the exercise of our factual

review power, we are satisfied that the verdict of guilt was not

against the weight of the evidence (see, CPL 470.15 [5]). 

The defendant’s remaining contentions lack merit. 

People v. Acosta, 224 A.D.2d 629, 629-30, 639 N.Y.S.2d 709, 709 (2d Dep’t 1996). The

New York Court of Appeals denied leave to appeal. See People v. Acosta, 88 N.Y.2d 844,

644 N.Y.S.2d 690 (1996). 

C. Federal Habeas Proceedings

1. The Initial Denial and Remand

Acosta proceeded to challenge his conviction in federal court by petitioning for a writ

of habeas corpus. See 28 U.S.C. § 2254. After preliminary litigation as to the timeliness of
11

Acosta’s petition was resolved in his favor, see Acosta v. Artuz, 213 F.3d 625 (2d Cir. 2000)

(unpublished summary order), the district court referred the matter to Magistrate Judge

Roanne L. Mann, who, on September 7, 2001, issued a detailed report recommending

dismissal. The district court adopted the recommendation on January 22, 2002, denying the

petition in its entirety, as well as a certificate of appealability.

Acosta subsequently moved this court for a certificate of appealability, which was

granted on September 25, 2002, for “the limited purpose of remanding the case to the district

court to consider whether appellant’s constitutional rights were violated when the trial court

admitted his incriminating statement to Detective Aguil[ar], which had been made after

appellant had invoked his Miranda right to the presence of counsel.” Acosta v. Artuz, No.

02-2265-pr (2d Cir. Sept. 25, 2002). Noting the discrepancy between Detective Aguilar’s

testimony at the suppression hearing and his trial testimony regarding disclosure of the lineup

identification to Acosta, this court observed that, “[b]ecause the district court did not

consider whether, in light of Aguil[ar]’s testimony at trial, appellant’s constitutional rights

were violated by the admission of the statement, we remand so that the district court may

make the determination.” Id.

2. The Denial on Remand and the Instant Appeal

On remand, the district court issued a published opinion that carefully addressed the

issues identified by this court and concluded that Acosta’s challenge to the admissibility of

his confession, to the extent it was based on Detective Aguilar’s trial testimony, was (1)
12

procedurally barred because Acosta failed adequately to exhaust his claim in the state courts,

and (2) without merit. See Acosta v. Artuz, 375 F. Supp. 2d 173.

Acosta again moved this court for a certificate of appealability, which was granted on

two issues, “whether: (1) petitioner ‘fairly presented’ to the state courts his claim that an

incriminating statement was admitted at trial in violation of petitioner’srights under Miranda

v. Arizona, 384 U.S. 436 (1966), and Rhode Island v. Innis, 446 U.S. 291 (1980); and (2)

whether petitioner’s Miranda/Innis claim warrants habeas relief.” Acosta v. Artuz, No. 05-

4196-pr (2d Cir. Sept. 22, 2006). It is to these questions that we now turn. 

II. Discussion

A. Standard of Review

We review the district court’s denial of Acosta’s petition for a writ of habeas corpus

de novo. See, e.g., Clark v. Perez, 510 F.3d 382, 389 (2d Cir. 2008). Our de novo review

is, however, informed by certain limiting principles. Notably, we cannot review challenges

to state court convictions that have been clearly rejected by the state courts on independent

and adequate state law grounds. See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991);

Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007). Nor will we consider claims that

have not been exhausted by fair presentation to the state courts, see 28 U.S.C. § 2254(b)(1);

Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases), unless the petitioner “can

demonstrate cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental
13

miscarriage of justice,” Coleman v. Thompson, 501 U.S. at 750. 

Even where no such procedural obstacles apply, our de novo review is limited by

standards of deference mandated by 28 U.S.C. § 2254(d). Under that statute, a federal court

may vacate a state conviction only upon concluding that the challenged state court decision

was either (1) “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States”; or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.” Id. “Where, as here, it is the state court’s application of governing federal law

that is challenged, the decision must be shown to be not only erroneous, but objectively

unreasonable,” Waddington v. Sarausad, 129 S. Ct. 823, 831 (2009) (internal quotation

marks omitted), a “substantially higher threshold,” Schriro v. Landrigan, 550 U.S. 465, 473

(2007). We must assess the state court’s decision “in light of the record the court had before

it,” Holland v. Jackson, 542 U.S. 649, 652 (2004) (citing cases), and it is the petitioner’s

burden to demonstrate that the state court applied the relevant clearly established law to that

record in an objectively unreasonable manner, see Woodford v. Visciotti, 537 U.S. 19, 25

(2002); Sorto v. Herbert, 497 F.3d 163, 166-67 (2d Cir. 2007). 

Applying these principles to this case, we conclude, as the district court did, that

Acosta is not entitled to habeas relief.
14

B. Procedural Concerns

1. Independent State Ground

At the outset, we discuss two procedural issues addressed by the district court. First,

we note our agreement with the district court that the Appellate Division, Second

Department, nowhere clearly and expressly indicated that it rejected Acosta’s constitutional

challenge to the admission of his confession on any independent state law ground. See

Acosta v. Artuz, 375 F. Supp. 2d at 178; People v. Acosta, 224 A.D.2d at 629-30, 639

N.Y.S.2d at 709. Thus, the “concerns of comity and federalism” that bar federal review of

claims denied on such grounds are not implicated here. Coleman v. Thompson, 501 U.S. at

730.

2. Exhaustion

Second, as the district court observed, a federal court must consider whether a habeas

petitioner adequately exhausted state remedies by fairly presenting both the factual and legal

premises for his federal claim to the appropriate state courts. See 28 U.S.C. § 2254(b)(1);

Baldwin v. Reese, 541 U.S. at 30-34; Daye v. Att’y Gen. of N.Y., 696 F.2d 186, 191-92 (2d

Cir. 1982) (en banc). “[T]he question of whether a federal constitutional question was

sufficiently asserted in state courts to form the basis of a federal habeas petition is ultimately

a question of federal law which the federal courts must resolve for themselves.” DiSimone

v. Phillips, 461 F.3d 181, 189 (2d Cir. 2006).
 We note that, although Detective Aguilar did not testify until trial that he disclosed 2

the lineup identifications to the defendant, Acosta himself presumably knew of the disclosure

and was in a position to file an affidavit in support of his suppression motion asserting both

the fact of the disclosure and its coercive effect on the statement he sought to suppress. 

15

To the extent Acosta relies on Detective Aguilar’s disclosure of the lineup

identifications as a factual premise for his claim that his confession was coerced in violation

of constitutional rights and, therefore, inadmissible, it is undisputed that Acosta did not

present this argument to Justice Starkey at the time a hearing was conducted on his

suppression motion. Nor did Acosta ask Justice Kay to reconsider the issue of suppression

at trial when Detective Aguilar first testified to the identification disclosure. Acosta 2

nevertheless insists that he adequately exhausted state remedies because, on direct appeal,

he “did not ask the appellate court to review the propriety of the hearing court decision, but

rather argued that, upon the facts elicited at trial, appellant’s statement should have been

suppressed by the trial court.” Appellant’s Br. at 21-22 (emphasis in original). We are not

persuaded. 

a. Whether Unprotested Claims Are Adequately Exhausted by

Presentation on Direct Appeal

Whether a state prisoner adequately exhausts unprotested claims by presenting them

on direct appeal admits no easy answer. While some commentators have suggested that

raising a claim on direct appeal can satisfy a federal habeas petitioner’s exhaustion

obligation, see 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE
16

AND PROCEDURE § 23.3b, at 1068 & n.19 (5th ed. 2005), a question arises as to whether this

conclusion is properly applied only to cases in which the appellate court actually addresses

the unprotested claim. The Supreme Court has, after all, ruled that where a constitutional

challenge to a state court conviction has been presented to the state courts “for the first and

only time in a procedural context in which its merits will not be considered unless there are

special and important reasons therefor[, r]aising the claim in such a fashion does not . . .

constitute fair presentation.” Castille v. Peoples, 489 U.S. 346, 351 (1989) (internal

quotation marks and citation omitted); see also Bell v. Cone, 543 U.S. 447, 451 n.3 (2005)

(“[A]s a general matter, the burden is on the petitioner to raise his federal claim in the state

courts at a time when state procedural law permits its consideration on the merits, even if the

state court could have identified and addressed the federal question without its having been

raised.”). 

Acosta argues that Castille v. Peoples applies only to claims raised in applications for

discretionary review. See 489 U.S. at 351 (“The Court of Appeals below held . . . that the

submission of a new claim to a State’s highest court on discretionary review constitutes a fair

presentation. We disagree.”); St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004)

(“[R]aising a federal claim for the first time in an application for discretionary review to a

state’s highest court is insufficient for exhaustion purposes.” (citing Castille v. Peoples, 489

U.S. at 351)). He submits that his appeal to the Appellate Division was, by contrast, “as of

right.” Appellant’s Br. at 24 (emphasis omitted). Even if we were to agree with Acosta that
17

Castille’s holding applies only to discretionary appeals – a point we need not here decide –

the exhaustion issue is more complex than Acosta might wish. 

To be sure, a convicted New York defendant has a right of appeal to the Appellate

Division of the New York Supreme Court. See N.Y. Crim. Proc. Law § 450.10. Moreover,

the jurisdiction of New York’s intermediate appellate courts is broad and extends even to

errors not protested at trial. See id. § 470.15(1); see also People v. Cona, 49 N.Y.2d 26, 33,

424 N.Y.S.2d 146, 149 (1979). The law is clear, however, that a state prisoner has no “right”

to Appellate Division review of unprotested errors; the Appellate Division may review such

errors “[a]s a matter of discretion in the interest of justice.” N.Y. Crim. Proc. Law

§ 470.15(3)(c), (6)(a). It is this language that appears to bring the Castille rule to bear and

signals caution in concluding that unprotested claims not addressed by the Appellate Division

are exhausted. 

In this case, the Appellate Division gave no indication that it chose to exercise its

discretion to review possible constitutional error in the trial judge’s failure, unprotested by

Acosta, to declare his confession inadmissible in light of Detective Aguilar’s trial testimony.

The Appellate Division’s silence on this point is significant because, as the district court

noted, “[i]t is well settled” in New York “that trial testimony may not be considered in

evaluating a suppression ruling on appeal,” and that where “the defendant fails to move to

reopen a suppression hearing, he or she may not rely upon the trial testimony to challenge the

suppression ruling.” People v. Gold, 249 A.D.2d 414, 415, 670 N.Y.S.2d 789, 789 (2d Dep’t
18

1998); see also People v. Gonzalez, 55 N.Y.2d 720, 722, 447 N.Y.S.2d 145, 146 (1981)

(noting that “propriety of the denial [of suppression motion] must be judged on the evidence

before the suppression court”); People v. South, 47 A.D.3d 734, 735, 849 N.Y.S.2d 603, 605

(2d Dep’t 2008) (“Insofar as [defendant] relies upon [trial] testimony in arguing that his

statements were not voluntarily made [and thus should have been suppressed], his contention

is not properly before this Court.”); People v. Douglas, 8 A.D.3d 980, 981, 778 N.Y.S.2d

622, 623 (4th Dep’t 2004) (“To the extent that defendant relies upon trial testimony in

challenging the court’s determination, his claims are not properly before us.”); People v.

Williams, 305 A.D.2d 804, 807-08, 759 N.Y.S.2d 580, 584 (3d Dep’t 2003) (“[W]e must

discount defendant’s reliance on the trial testimony of a witness to the pat-down as our

review in this respect is limited to the suppression hearing testimony.”); People v. Canteen,

295 A.D.2d 256, 256, 744 N.Y.S.2d 380, 381 (1st Dep’t 2002) (“Since defendant never

requested that the court reopen the suppression hearing, his claim that his trial testimony

established the involuntariness of his statements is unpreserved, and we decline to review it

in the interest of justice.” (citation omitted)); but see People v. McCormick, 39 A.D.2d 590,

590, 331 N.Y.S.2d 840, 841 (2d Dep’t 1972) (reversing denial of suppression motion and

ordering new trial in interests of justice where officer’s trial testimony was “in basic and

flagrant contradiction” with that presented at suppression hearing). It was in these legal and

factual circumstances that the district court concluded that “the evidence of Aguilar’s trial

testimony was presented [to the Appellate Division] in a context where it would not
19

ordinarily have been considered,” and, thus, under Castille, any claim of error based on this

evidence should not be deemed exhausted absent some record indication that the appellate

court actually addressed the merits. Acosta v. Artuz, 375 F. Supp. 2d at 179-80. 

While this reasoning is persuasive, we identify a more fundamental flaw in Acosta’s

exhaustion argument: the record does not demonstrate a fair presentation to the Appellate

Division of the same challenge to the admissibility of his confession that he now pursues in

his federal habeas petition.

b. Acosta Failed To Alert the Appellate Division that His

Challenge to the Admissibility of His Confession Charged Error

by the Trial Judge

We have carefully reviewed Acosta’s brief to the Appellate Division, and we conclude

that it did not fairly alert that court that the error being alleged was one by the trial judge,

Justice Kay (before whom Acosta never challenged the admissibility of his confession), as

distinct from any by the hearing judge, Justice Starkey (who denied Acosta’s pre-trial

suppression motion after an evidentiary hearing). 

 The first sentence of Acosta’s brief to the Appellate Division states that he “moved

at trial to suppress a statement that he made while under arrest.” Petitioner’s App. Div. Br.

at 18 (emphasis added). This would not have alerted the Appellate Division to a claim of

error by Justice Kay because the only suppression motion made by Acosta was the one filed

prior to trial and ruled on by Justice Starkey. That Acosta was, in fact, referring to this pre-
 A Huntley hearing is a pre-trial proceeding to determine the admissibility of a 3

confession or admission. See People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838

(1965); see also United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 n.13 (2d

Cir. 1974). 

20

trial motion in the opening sentence of his state appellate brief is convincingly demonstrated

by the second sentence of the brief, which states: “A Huntley hearing was held and the

motion denied.” Id. 3

Moreover, in arguing to the Appellate Division that coercive police conduct required

suppression of his confession, Acosta referred the state appellate court to “the guidelines of

a ‘Huntley Hearing.’” Id. at 20 (indicating that prosecution was required to prove “that the

defendant’s statement was made voluntarily and not as the result of impermissible police

interrogation”). Nowhere did Acosta indicate that he was faulting the trial judge for failing

to apply these guidelines to a sua sponte reconsideration of Acosta’s suppression motion in

light of Detective Aguilar’s trial testimony. Nor did he argue that, in light of the discrepancy

between the trial and hearing records – which was certainly known to Acosta, but not to

Justice Kay, who had not presided at the pre-trial hearing – the trial judge was legally

obligated sua sponte to reconsider the admissibility of Acosta’s confession. Indeed, he cited

no legal authority indicating such an obligation of sua sponte review, which might have

alerted the Appellate Division to the nature of his claim. See Daye v. Att’y Gen. of N.Y.,

696 F.2d at 191-94. 

Under these circumstances, we conclude that Acosta did not fairly alert the state
 Insofar as the state’s brief to the Appellate Division argued that “defendant cannot 4

impeach the hearing record with testimony subsequently adduced at trial,” Respondent’s

21

appellate court that he was seeking reversal of his conviction based on an unprotested

constitutional error by the state trial court, which was distinct from any error by the state

hearing court in denying the motion to suppress. The Supreme Court has made clear that a

claim is not “fairly presented” to a state appellate court if discovery of that claim requires the

court to “read beyond a petition or a brief (or a similar document)” and conduct its own

review of proceedings below. Baldwin v. Reese, 541 U.S. at 32; see also id. at 31 (holding

that claim not fairly presented where “an appellate judge can discover that claim only by

reading lower court opinions in the case”). Given the content of Acosta’s state appellate

brief, the Appellate Division could not have determined that Acosta was, as he now asserts,

identifying error by the trial court unless it (1) carefully reviewed the hearing and trial

transcripts; (2) recognized that the testimony Acosta identified on appeal as requiring

suppression was offered only at trial and not at the pre-trial suppression hearing; and (3)

inferred therefrom that Acosta must therefore be charging the trial court with error for failing

sua sponte to revisit the suppression issue in light of Detective Aguilar’s trial testimony. To

require state appellate courts to engage in this level of investigation and conjecture to

discover federal claims that may arise in a later habeas petition would be to “unjustifiably

undercut the considerations of federal-state comity that the exhaustion requirement seeks to

promote.” Id. at 32. We decline to impose such a requirement. 4
App. Div. Br. at 32, the argument simply defends the hearing court’s denial of Acosta’s

suppression motion. Moreover, Acosta points us to no reply brief clarifying for the Appellate

Division that he was arguing an error by the trial court separate and distinct from that of the

hearing court. 

22

Because Acosta cannot now present his unexhausted claim of trial error to the state

courts, we deem the claim procedurally barred. See Washington v. James, 996 F.2d 1442,

1447 (2d Cir. 1993). Acosta has not attempted to make the showing necessary to overcome

such a bar, namely, “cause for the default and actual prejudice as a result of the alleged

violation of federal law,” or that “failure to consider [his] claims will result in a fundamental

miscarriage of justice.” Coleman v. Thompson, 501 U.S. at 750. Nor could he do so

because, as we explain in the next section, Acosta’s claim is lacking in merit in any event.

See Gittens v. Menifee, 428 F.3d 382, 387 (2d Cir. 2005) (noting that petitioner “cannot

show prejudice or a fundamental miscarriage of justice, as his petition is plainly without

merit”).

C. The Merits of Acosta’s Challenge to the Admission of His Confession 

Even if we were to assume that Acosta adequately exhausted state remedies on the

precise challenge to the admission of his confession that he now raises in his habeas petition,

we would agree with the district court that no relief is warranted because Acosta has not

demonstrated that the state court’s rejection of his claim on the merits was an objectively
 Assuming that Acosta fairly presented his claim to the Appellate Division, we further 5

assume that it was rejected on the merits when that court held that Acosta’s “remaining

contentions lack merit.” People v. Acosta, 224 A.D.2d at 630, 639 N.Y.S.2d at 709. See

Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (“Nothing in the phrase ‘adjudicated

on the merits’ requires the state court to have explained its reasoning process.” (quoting

28 U.S.C. § 2254(d)(1))); see also Dye v. Hofbauer, 546 U.S. 1, 3 (2005) (“Failure of a

state appellate court to mention a federal claim does not mean the claim was not presented

to it.”).

23

unreasonable application of clearly established Supreme Court precedent. 

5

The Constitution famously states that no “person . . . shall be compelled in any

criminal case to be a witness against himself.” U.S. CONST. amend. V. This protection from

compulsory self-incrimination extends to the states through the Fourteenth Amendment. See

Malloy v. Hogan, 378 U.S. 1, 6 (1964). In Miranda v. Arizona, the Supreme Court

determined that the “in-custody interrogation of persons suspected or accused of crime

contains inherently compelling pressures which work to undermine the individual’s will to

resist and to compel him to speak where he would not otherwise do so freely.” 384 U.S. at

467. As a prophylactic measure to address this concern, the Court formulated the “nowfamiliar procedural safeguards” – the Miranda warnings – deemed necessary “to secure the

privilege againstself incrimination.” Colorado v. Spring, 479 U.S. 564, 572 (1987) (internal

quotation marks omitted). Certain rules attend these procedures. Of particular relevance to

Acosta’s petition is the rule that when an arrested person “‘expresse[s] his desire to deal with

the police only through counsel, [he] is not subject to further interrogation by the authorities

until counsel has been made available to him, unless the accused himself initiates further
24

communication, exchanges, or conversations with the police.’” Arizona v. Mauro, 481 U.S.

520, 525-26 (1987) (second alteration in original) (quoting Edwards v. Arizona, 451 U.S.

477, 484-85 (1981)). 

In Rhode Island v. Innis, the Supreme Court explained that “the term ‘interrogation’

under Miranda refers not only to express questioning, but also to any words or actions on the

part of the police (other than those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating response.” 446 U.S. at 301. The

Court explained that “[t]he latter portion of this definition focuses primarily upon the

perceptions of the suspect, rather than the intent of the police.” Id. Nevertheless, the Court

declined to hold the police “accountable for the unforeseeable results of their words or

actions.” Id. at 302. Thus, police conduct would not qualify as interrogation simply because

it “struck a responsive chord” in a defendant. Id. at 303. Rather, “[i]t must also be

established that a suspect’s incriminating response was the product of words or actions on

the part of the police that they should have known were reasonably likely to elicit an

incriminating response.” Id.

The parties agree that Acosta was under arrest and in police custody on the evening

of November 3, 1991. They further agree that Acosta had been given Miranda warnings and

had invoked his right to counsel before making the challenged confession. The point in

dispute is whether it was objectively unreasonable for the state court to conclude that
 The district court concluded that various inconsistencies in Detective Aguilar’s 6

testimony regarding the disclosure of the lineup identifications were attributable to flawed

memory, not intentional falsehood. Acosta v. Artuz, 375 F. Supp. 2d at 181-82. To the

extent Acosta faults the district court’s fact finding on this point, we observe only that, for

reasons discussed more fully in the text of this opinion, no federal fact finding is

necessary to conclude that the state courts were not compelled by clearly established

Supreme Court precedent to hold that the Detective Aguilar “should have known” that his

actions “were reasonably likely to elicit an incriminating response” from Acosta. Rhode

Island v. Innis, 446 U.S. at 303. 

25

Acosta’s confession was a self-initiated communication and not the product of impermissible

“interrogation” as that term is defined by Innis. 

As noted above, our review of this issue must be undertaken “in light of the record the

[state] court had before it.” Holland v. Jackson, 542 U.S. at 652. We therefore note at the

outset that, as Acosta’s counsel conceded at oral argument, there is significant ambiguity in

the state court record regarding the circumstances in which Detective Aguilar disclosed the

lineup identifications to Acosta. Most important, Acosta’s trial counsel failed to establish

when, in the approximately two-hour interval between the lineup identifications and Acosta’s

confession in the bathroom, Detective Aguilar revealed the results of the lineup to Acosta.

The testimony elicited from Detective Aguilar on cross-examination is equally consistent

with a finding that the disclosure took place two hours before Acosta’s confession, two

minutes before, or, indeed, at any time in-between. See supra at [7-8] (quoting full

exchange). Moreover, it is not apparent from the record whether Acosta’s statement was 6

made in response to Detective Aguilar’s disclosure of the lineup identifications, as Acosta
26

never made such an assertion before the hearing or trial court; nor did he submit an affidavit

or testify on this point. 

Thus, the record developed by Acosta before the state court indicates only that, at

some point during a two-hour period before Acosta confessed, he was told that he had been

identified in a lineup. This record does not permit us to conclude that rejection of Acosta’s

Miranda/Innis claim was objectively unreasonable. 

First, Innis instructs that evidence that police conduct “struck a responsive chord” in

a detained person is not enough, by itself, to equate the conduct to “interrogation.” 446 U.S.

at 303. We doubt, however, whether a petitioner can state – much less demonstrate – a

constitutional violation under Miranda and Innis without asserting such a responsive effect

in his own case. See id. (holding that suspect’s statement “must [be] . . . the product of

words or actions on the part of the police that they should have known were reasonably likely

to elicit an incriminating response” (emphasis added)). Acosta failed to make such an

assertion before the state court and, in any event, the record indicates that significant events

occurred between the time Acosta learned about the results of the lineup and when his

statement was made that undermine any claim of a causal link between Detective Aguilar’s

disclosure and Acosta’s statement. Before Acosta made the statement, he asked to speak

with a prosecutor. See supra at [6]. After consulting with an assistant district attorney,

Detective Aguilar reported to Acosta that, because he had invoked his right to counsel, the
27

assistant district attorney would not speak to Acosta without defense counsel present. Id.

Acosta does not argue – nor does the record indicate – that Detective Aguilar thereafter said

or did anything to urge Acosta to waive his right to counsel. Rather, with the right to counsel

thus reiterated and with the authorities’ commitment to honoring that right confirmed, Acosta

volunteered to Detective Aguilar that he had stabbed Dennis Cetter but that he had acted only

in self-defense. On this record, it would not have been objectively unreasonable for the state

court to conclude that Acosta’s statement was not “the product of” Detective Aguilar’s

disclosure regarding the lineup. Rhode Island v. Innis, 446 U.S. at 303.

Second, even without these intervening events, we are not persuaded that the state

courts were compelled to equate Detective Aguilar’s disclosure of the results of the lineup

to interrogation under Innis. While the Supreme Court in Miranda suggested that the

disclosure of lineup identifications could be used by police “to induce a confession out of

trickery,” Miranda v. Arizona, 384 U.S. at 453, this does not compel a conclusion that every

disclosure of an identification or of other inculpatory evidence constitutes interrogation under

clearly established Supreme Court precedent. Rather, Innis calls upon courts to consider

police conduct in light of the totality of the circumstances in assessing whether the police

“should have known” that their actions “were reasonably likely to elicit an incriminating

response.” 446 U.S. at 303.

Applying this standard, courts have not endorsed the proposition that “statements by
 The Supreme Court vacated the Eighth Circuit’s judgment in Allen and remanded for 7

further consideration in light of Ring v. Arizona, 536 U.S. 584 (2002) (holding that Arizona

statute allowing trial judge to determine presence or absence of aggravating factors in capital

case violated Sixth Amendment). See Allen v. United States, 536 U.S. 953 (2002). The

decision on remand is reported at 406 F.3d 940 (8th Cir. 2005) (en banc). This subsequent

history does not call into question the Eighth Circuit’s holding in the passage quoted above.

28

law enforcement officials to a suspect regarding the nature of the evidence against the

suspect constitute interrogation as a matter of law,” recognizing that “[i]t simply cannot be

said that all such statements are objectively likely to result in incriminating responses by

those in custody.” United States v. Payne, 954 F.2d 199, 203 (4th Cir. 1992) (emphasis

added); see also Caputo v. Nelson, 455 F.3d 45, 50 (1st Cir. 2006) (“‘[T]he Innis definition

of interrogation is not so broad as to capture within Miranda’s reach all declaratory

statements by police officers concerning the nature of the charges against the suspect and the

evidence relating to those charges.’” (quoting United States v. Payne, 954 F.2d at 202)).

Indeed, courts have generally rejected claims, such as Acosta’s, that disclosure of the results

of a lineup or other inculpatory evidence possessed by the police, without more, constitutes

“interrogation” under Innis. See United States v. Allen, 247 F.3d 741, 765 (8th Cir. 2001)

(holding that “informing [defendant] of the results of the lineup did not amount to the

functional equivalent of interrogation for purposes of the Fifth Amendment” where “the

officer simply described the results of the lineup, unaccompanied by any threats or other

compelling pressure”); see also Caputo v. Nelson, 455 F.3d at 51 (holding that no 7

interrogation occurred where defendant merely overheard officer discussing certain evidence
29

on the phone); Easley v. Frey, 433 F.3d 969, 974 (7th Cir. 2006) (holding that state court did

not act unreasonably in rejecting claim that officer’s “matter-of-fact communication of the

evidence against [defendant] and the potential punishment he faced” did not constitute

interrogation); Enoch v. Gramley, 70 F.3d 1490, 1500 (7th Cir. 1995) (holding that

incriminating statements were not result of interrogation where “the police identif[ied] the

victim to the suspect and briefly stat[ed] the evidence against him”); Shedelbower v. Estelle,

885 F.2d 570, 572-73 (9th Cir. 1989) (informing defendant that he had been identified by

rape victim was “not the functional equivalent of questioning”); cf. United States v.

Szymaniak, 934 F.2d 434, 436-37, 439 (2d Cir. 1991) (holding that interrogation occurred

where officer visited defendant “three or four times” to confront him with inculpatory

information and “request[ed] that he give [the police] a statement”); see generally DAVID M.

NISSMAN& ED HAGEN, LAW OF CONFESSIONS § 5:8 (2d ed. 2009) (“A few courts have found

that talking about the evidence can be interrogation, even where the officer asks no questions.

However, the majority of cases have gone the other way.”). 

In sum, given the vague, incomplete record developed by Acosta before the state

courts and the case law cited above, we cannot conclude that it was objectively unreasonable

under clearly established Supreme Court precedent to hold that Detective Aguilar’s

disclosure of the results of the lineup did not constitute “interrogation” under Innis. See

Jackson v. Frank, 348 F.3d 658, 665 (7th Cir. 2003) (observing that “the determination by
30

one of our sister circuits that” a particular claim is without merit “certainly makes it more

difficult to conclude that” the state court “unreasonably applied Supreme Court authority”

in rejecting a similar claim). We need not consider whether further record development

might have revealed additional facts supporting Acosta’s claim, because Acosta “bears the

burden of demonstrating an unreasonable application of federal law,” and he must also bear

the consequences of his failure to develop a more complete record on that point. Sorto v.

Herbert, 497 F.3d at 167; see id. at 167 (“Because [petitioner] bears the burden of

demonstrating an unreasonable application of federal law, the insufficiency of the record

defeats his petition.”); cf. 28 U.S.C. § 2254(e)(2) (providing, with exceptions not relevant

here, that habeas petitioner is not entitled to evidentiary hearing where he “has failed to

develop the factual basis of a claim in State court proceedings”). Thus, we reach the same

conclusion on de novo review as the district court: Acosta fails to demonstrate that the state

court’s admission of his volunteered confession violated clearly established Supreme Court

precedent.

III. Conclusion

To summarize, we conclude:

(1) The review authority of New York’s Appellate Division to hear claims of

unprotested error is discretionary. A question thus arises under Castille v. Peoples, 489 U.S.

346, as to whether Acosta’s direct appeal challenge to the trial court’s failure sua sponte to
31

reconsider the admissibility of his confession was adequately exhausted in the absence of

indication that the state appeals court actually addressed the merits of the claim.

(2) The applicability of Castille to this case need not be decided because the record

reveals a more fundamental exhaustion defect: Acosta failed clearly to identify for the state

appellate court that he was charging the trial judge with an error in failing sua sponte to

reconsider the admissibility of his confession, which error was separate and distinct from any

decision made by the hearing judge in denying Acosta’s suppression motion. 

(3) Because no state remedies remain available to Acosta, his unexhausted claim is

deemed procedurally barred. Acosta fails to demonstrate the cause and prejudice or

miscarriage of justice necessary to secure a merits review of such a barred claim. Indeed, he

cannot do so because his claim lacks merit. On the record presented to the state court, Acosta

cannot demonstrate that clearly established Supreme Court precedent compelled the state

court to conclude that his confession, made after invocation of the right to counsel, was

inadmissible as the product of interrogation rather than admissible as a volunteered

statement.

 The judgment of the district court denying a writ of habeas corpus is AFFIRMED.