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April 17, 1986

UNITED STATES OF AMERICA, ex rel ROBERT W. MURRAY, JR., Petitioner, against CHARLES C. SCULLY, Superintendent of Green Haven Correctional Facility and ROBERT ABRAMS, Attorney General, State of New York, Respondent

The opinion of the court was delivered by: COOPER


Petitioner applies for a writ of habeas corpus under 28 U.S.C. § 2254.

 On January 31, 1980, following a jury trial in the Supreme Court of the State of New York, Bronx County, petitioner Murray was convicted of two counts of robbery in the first degree. On March 5, 1980, petitioner was sentenced as a second felony offender to seven and one half to fifteen years on each robbery conviction, to run concurrently.

 Pursuant to New York Criminal Procedure Law ("CPL") § 440.10, he sought to vacate his conviction upon the grounds that he had been subject to a warrantless arrest at a private dwelling and he had not received Miranda warnings. The application was denied on July 31, 1981 for the reason that these issues should be raised on direct appeal; the Appellate Division of the New York Supreme Court, First Department, affirmed the denial of leave to appeal the order, also noting that the issues raised by petitioner could be reviewed on direct appeal.

 Similar relief was sought by petitioner on July 29, 1981 by way of a writ of habeas corpus from the Supreme Court of the State of Ne York, Dutchess County, Ne York. After a hearing, the matter was referred to the trial court which considered it a motion for vacatur pursuant to CPL § 440.10. Although we have learned of no disposition by the trial court of this motion, it was considered by the Appellate Division together with the direct appeal from petitioner's conviction. On January 19, 1982, the Appellate Division unanimously affirmed petitioner's conviction without opinion. On March 24, 1982, the Court of Appeals of the State of New York denied his application for leave to appeal on the ground that petitioner's application presented no question of law.

 Thereafter petitioner pro se sought review here. On September 20, 1982, we denied the issuance of a writ of habeas corpus on the ground that he had not exhausted his state remedies as required by Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). On December 2, 1982, we denied petitioner's application for a certificate of probable cause to appeal the dismissal of his habeas petition; the Second Circuit Court of Appeals affirmed on March 31, 1983.

 Subsequently (between April 12, 1983 and June 7, 1983; exact date unclear), petitioner again moved this Court to reconsider our decision of September 20, 1982. By order dated February 8, 1984 (delay due to an unfortunate episode affecting a member of our staff), we determined that petitioner had indeed exhausted his state remedies because we learned through an affidavit of Assistant District Attorney Everett Hughes, Bronx County, that the issues raised by petitioner in state court had been addressed at the oral argument on defendant's appeal. In our February 8th order we also assigned counsel to petitioner to aid him in presenting his instant claims. The extraordinary large number of pro se applications initiated by this petitioner, together with the many judicial tribunals which considered and disposed of them, adds to our pride in the American system of justice for all -- unparalleled throughout the world.

 As revealed in the trial record, the key facts giving rise to the convictions were as follows: On June 7, 1979, Eve Nesland, Kim D'Amico, Alecia Venegas, and another person named Maria were working as employees at the Emandee Hosiery Shop located on the Grand Concourse near Fordham Road in Bronx County, New York. At approximately 4:00 P.M., two men entered the store and announced a "hold up." (Tr. 22; 75) *fn1" One of the men pulled a gun from a briefcase, took Ms. Venegas to the cash register, ordered her to open the register, and took money therefrom in addition to the watch and ring she had on. (Tr. 104-05) The other man, petitioner herein, pulled out a knife and took Ms. Nesland, Ms. D'Amico, Maria and a customer into a well-lit room in the back of the store. (Tr. 22) He held the knife to Ms. D'Amico's throat; Ms. Nesland stood next to her, shoulder to shoulder, at an angle. Ms. Nesland observed petitioner's face for five to seven minutes. The robbers left the store approximately ten minutes after they entered. (Tr. 25)

 About an hour later, the same two perpetrators entered a gift shop located at 125 East Burnside Avenue in the Bronx. At that time the shop owner, Margaret Huh, and an employee, Nitza Maldonado, were working. The robbers again announced a "hold up." One of them, holding a gun, went to the register and, after struggling to open it, ordered Ms. Maldonado to do so; she did and he took the money it contained. he also demanded and received Ms. Maldonado's ring. (Tr. 139-40) Petitioner herein took Ms. Huh to the back of the store at knifepoint. Ms. Huh became extremely nervous, and Ms. Maldonado, concerned about her employer, kept her attention focused on the couple in the back of the store. Mrs. Maldonado testified that she had a clear view of the petitioner; at one point, she was only two feet away from him. (Tr. 145)

 After the robbers fled, Ms. Huh rang the store's burglar alarm. A chase ensued, and a neighboring merchant flagged down a police patrol car driven by Officer Julio Joglar. The officer apprehended the gunman, Eric Smith, who was carrying a briefcase containing a gun, money, earrings, a bracelet, and keys. (Tr. 216)

 An investigation of these incidents ensued headed by Detective Michael Cassidy of the Bronx Police Task Force. As a result of his inquiry, he learned the identify of the knifetoter, petitioner Robert Murray. On June 22, 1979, Detective Cassidy arrested petitioner in his own home pursuant to New York Criminal Procedure Law ("CPL") § 140.15(4), which under the circumstances authorized such entry into a private dwelling.

 Later that evening a lineup held at the 48th precinct, both Eve Nesland and Nitza Maldonado independently identified petitioner as the perpetrator who brandished a knife in the hosiery store and gift shop robberies.

 Petitioner's grounds for appeal to the Appellate Division included alleged violations of his rights under the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Specifically, he alleged the following constitutional violations: (1) a warrantless arrest; (2) denial of counsel at a post-arrest lineup; (4) unlawful search of his residence; and (4) denial of his rights to confront his accusers and to testify before a grand jury and at a preliminary hearing.

 In his instant application, petitioner repeats only the first contention. He asserts that his warrantless arrest in his home, in the absence of exigent circumstances, constituted a ...

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