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United States District Court, Southern District of New York

May 20, 2003


The opinion of the court was delivered by: Robert W. Sweet, United States District Judge


David Irons, pro se, ("Irons" or the "Petitioner"), incarcerated at Upstate Correctional Facility, Franklin County, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate his conviction after a trial on three counts of Robbery in the First Degree under New York Penal Law § 160.15(4) and sixteen counts of Robbery in the Second Degree under New York Penal Law § 160.10(1)&(2) and one count of Petit Larceny under New York Penal Law § 155.25. T. Ricks, Superintendent (the "Respondent" or the "State") has opposed the application which is denied for the reasons set forth below.

Prior Proceedings

Irons filed his application pro se on May 13, 2002, alleging constitutional violations arising out of the failure to suppress his statements made before arraignment and evidence seized from his home and the sentence imposed upon him. The State filed its opposition on October 10, 2002. Irons sought to withdraw his petition and then by letter of March 31, 2003 to restore his petition to the calendar, an application which was granted on April 8, 2003, at which time the application was marked fully submitted.

The State Court Proceedings

Irons was indicted in three separate instruments filed in September and November 1997, on four counts of Robbery in the First Degree and sixteen counts of Robbery in the Second Degree which were consolidated for trial.

The Honorable Micki A. Scherer, Justice of the Supreme Court of the State of New York, County of New York, granted Irons' motion for a combined suppression hearing pursuant to Mapp v. Ohio, 367 U.S. 643 (1961); Dunaway v. New York, 442 U.S. 200 (1979), and U.S. v. Wade, 388 U.S. 218 (1967), which was conducted on March 26, 1998.

During the hearing the following testimony was adduced. During the summer of 1997, a series of robberies took place in the subway stations on West 34th Street and Sixth Avenue and on West 50th Street and Rockefeller Plaza in Manhattan. In most cases, two or three men robbed elderly male victims. In August 1997, a task force was formed to investigate those robberies. During the week preceding August 21, 1997, one of the members of the task force learned that Irons had been arrested for jumping a turnstile during July of that summer, and had been in possession of an imitation pistol at the time of the arrest. A copy of Irons' arrest photograph from the July arrest was provided to certain members of the task force.

At about 9:15 a.m. on the morning of August 21, 1997, Officer Jaen, a member of the task force, was working undercover at a token booth in a subway station at West 34th Street and Sixth Avenue when she saw Irons jump a turnstile.

At approximately 3:00 p.m. that afternoon, Officers Solla and McLean were inside a token booth at the West 34th Street and Sixth Avenue subway station when Solla saw Irons standing in the mezzanine area of the station. As the officer watched, Irons followed three or four elderly men from the middle to the far ends of the mezzanine and back again. Next, Irons followed a family, who appeared to be tourists, down the stairs that led from the mezzanine to the platform. Without drawing their guns or touching Irons, the officers approached Irons and asked him if he was lost. Irons replied that he was waiting to meet his girlfriend and that his name was David Irons, producing welfare documents as identification.

When Officer Jean saw Officers Solla and McLean speaking with Irons, she approached and told them that she had seen Irons jump a turnstile earlier that day. The officers then walked Irons back to the token booth without handcuffing him. Officer Solla asked Irons for additional identification, and Irons searched through his wallet. Solla saw a check in Irons' wallet and asked to examine it; the check was in the name of Henry Fenster, a name Solla recognized from the complaint reports as one of the robbery victims. Irons told Solla that he had found the check and Solla returned it to him. Solla telephoned Officer Stenrud and notified him that Irons was in custody. Solla then frisked and handcuffed Irons, and transported him to Midtown South stationhouse at approximately 3:15 p.m.

At the precinct, Solla processed Irons' arrest for the theft of services charge (turnstile jumping). This sixty-to-ninety minute process included a check for outstanding warrants, fingerprinting and photographing Irons, and the completion of an on-line booking sheet. During this time, with the exception of questions concerning pedigree information, no one questioned Irons or advised him of the Miranda*fn1 warnings. No one threatened Irons or made any promises to him, and Irons did not ask to speak with an attorney. When the processing was completed, Stenrud drove Irons to the Manhattan Robbery Squad to be interviewed by Detective Sweeney.

When Stenrud and Irons arrived at the Manhattan Robbery Squad at about 5:30 p.m., Stenrud introduced Irons to Detective Sweeney. Sweeney then escorted Irons into an interview room containing a table, chairs and a water cooler, removed Irons' handcuffs, and asked him to wait. Sweeney organized his paperwork and at about 7:00 p.m. he began to interview Irons. Before asking any questions, Sweeney read Irons the Miranda warnings from a printed form and he responded that he understood each of his rights. Sweeney then gave the form to Irons and asked him to read the warnings and to write "yes" after each of the rights if he understood it. Irons complied and indicated that he was willing to speak to the detective. Irons never asked to speak with an attorney, nor did he say that he wished to desist speaking with the police.

Sweeney advised Irons of his rights orally and received his verbal responses. He then gave Irons a Miranda form, asked him to read each question and write his response to each and Irons complied. Sweeney then told Irons that he was investigating a series of robberies and that he believed that Irons was responsible for many of them. He asked Irons if he would "like to talk about them," and Irons replied that he would like to "clear the matter up." Irons then told Sweeney about a robbery that he had committed in the subway station at Rockefeller Center, located between 47th and 50th Streets. At Sweeney's request, Irons wrote a statement about that incident on the bottom of the Miranda form. Detective Sweeney then gave Irons a second Miranda form and asked him to read it and initial it in the same manner as he had done with the first form. Irons complied and then wrote out a statement concerning a separate incident on the bottom of the second Miranda form.

At approximately 7:30 p.m., after Irons had finished writing out his second statement, Sweeney, who had collected about fifty complaint reports which related to the robbery pattern, realized that he would need the assistance of Sergeant Stenrud, who was more familiar with the complaint. Sweeney left the interview room and asked Stenrud to assist him. When Sweeney returned to the interview room with Stenrud, Irons volunteered that he had participated in a robbery on the first Monday after July 4, 1997. The officers located a complaint report relating to that incident, and Irons then wrote a statement about it on the back of the report. At that point, the officers gave Irons a calendar to assist him in recalling the dates of various incidents.

At about 8:30 p.m., Irons began to fill in the calendar with crimes that he had committed on various dates. The officers would then search for a complaint report relating to each date and, if they found one that corresponded to it, Irons would write out a statement concerning that incident on the back of the applicable complaint report. Following this procedure, Irons gave written confessions to five additional robberies and also made numerous oral statements concerning crimes that he had committed with Kahil Blake and other accomplices, including the fact that they had brandished a pellet or BB gun during some of the robberies.

At 11:30 p.m., following the same procedure that he had used at the beginning of the interview, Detective Sweeney re-advised Irons of his Miranda rights, and Irons wrote "yes" next to each of the warnings and signed the form. Subsequently, Irons recalled the details of an eighth robbery which matched a complaint report, and Irons wrote a statement about that crime on the bottom portion of the Miranda form. Finally, Irons recalled the details of a ninth robbery and wrote an account of it.

During the evening, Irons mentioned that he and his accomplice Khalif, "liked to get the slow moving guys so nobody could chase us and nobody could physically assault use." He noted that they often "tried to get the older guys with beards and the hats, because some of those guys work near the Diamond District and always keep their money in their front pockets." The officers questioned Irons concerning five or six complaint reports that arose from incidents he had not described on his own, and he denied participating in those crimes. The officers "put those reports aside." Irons also told the officers that some of the proceeds of the robberies were in his apartment at 164 West 144th Street, which he shared with his girlfriend, Cecilia Blake, and that he would allow them to go there and recover that evidence. That interview ended at midnight, at which time Sweeney went off duty.

Stenrud drove Irons to the First Precinct stationhouse where he was processed for two of the robberies that he had confessed to and completed processing for the theft of services charge. Officers Solla and McLean subsequently drove Irons to the New York City Police Department Central Booking Facility for overnight lodging.

At about 11:00 a.m. the following day, August 22, Officers Solla and McLean transported Irons from Central Booking to the District Attorney's Office. Acting on instructions from an assistant district attorney, Stenrud asked Irons if he would still permit the police to enter his apartment and seize the proceeds of the robberies that had been discussed the night before, and Irons replied, "[Y]ear, no problem." At approximately 12:15 p.m., Stenrud, along with Officers McLean, Solla and Heller, drove to the 23rd Precinct stationhouse where the officers equipped themselves with police radios. While at the 23rd Precinct, Irons wrote and signed a statement in which he consented to the search of his apartment.

The officers and Irons then drove to his apartment and knocked on the door. Cecilia Blake answered, and Irons informed her that he had been arrested and that the police were there "to get a couple of things." He told Blake that he was "all right," that the police were treating him "all right," and instructed her to "let them search the apartment." Stenrud then asked Blake if they could search the apartment and she told them that they could and put her consent in writing. Irons then directed the officers to various locations in the apartment where they found foreign currency, a silver quarter, a money clip, a watch and a red rosary.

Before leaving the apartment, the officers allowed Irons to shower and change his clothing. The officers then drove him back to the District Attorney's Office where he received something to eat. Stenrud then re-advised Irons of rights under Miranda by reading from a form. Once again, Irons responded that he understood his rights and indicated his understanding by writing "yes" on the form next to each right. Irons, Stenrud and Solla then signed the form. By this time, the officers and Irons had developed a "friendly relationship," and Irons was "very cooperative."

Stenrud then began to question Irons concerning the approximately twenty-five complaint reports with which Stenrud was most familiar. At first, Stenrud suggested that Irons use the calendar to recall crimes that he had committed, but Irons demurred saying, "I did so many crimes, I don't remember which ones I've done." Stenrud then began to question him about the locations of the crimes that had been reported. For example, Stenrud had numerous complaints about crimes that had occurred in the West 14th Street and Eighth Avenue subway station. However, when Stenrud asked Irons if he committed any crimes there, Irons told him he had not. Each time Irons denied committing a crime, Stenrud placed the corresponding complaint report into an envelope and stopped questioning him about that incident. When Irons did recall being involved in an incident, Stenrud questioned him about the details of the crime, including the property taken and the particular time of day it had occurred. After the details of a particular incident were recalled, Stenrud gave Irons a corresponding complaint report face down and asked Irons to write down whatever he recalled. Irons then wrote whatever he could recall about the incident on the back of the complaint report.

Between 6:00 and 6:30 p.m., Stenrud finished speaking with Irons, and Officer Solla brought Irons first to Central Booking or directly to the arraignment part for arraignment, Stenrud could not recall which.*fn2

Five days later on August 27, 1997, Detective Arthur Caddigan showed two photo arrays to six robbery victims: Messrs. Grant, Seidman, Sherwin, Yerishalmi, Sardinha and Krupnit. One of the arrays contained a photograph of Irons, and the other contained a photograph of Khalif Blake. None of the witnesses identified any of the photographs in either of the arrays. That same day, Detectives Sweeney and Caddigan conducted a lineup including Irons at the Manhattan Robbery squad, and defense counsel's investigator was present. Robbery victims Peter and Judith Saunders, Michael Schwager and Mark Keaton each viewed the lineup, and Mark Keaton identified Irons as one of the men who had robbed him. Irons appeared in a second lineup at the Manhattan Robbery squad on September 11, 1997. Defense counsel's investigator was again present. Carl Forsberg, the only victim who viewed this lineup, identified Irons as one of the three men who had robbed him.

Irons presented no evidence at the suppression hearing.

In a twelve-page written decision dated May 5, 1998, the court denied Irons' motion to suppress his post-arrest statements, the physical evidence obtained from his apartment and the lineup identifications. The court credited the testimony of the People's witnesses, and adopted their testimony in its findings of facts. The court first concluded that Irons' Dunaway claim was without merit. The court reasoned that Officer Solla had had an "articulable reason" for approaching Irons based on the fact that at about 3:00 p.m. on August 21, 1997, he had observed Irons following several elderly males in the mezzanine area of the subway station at 34th Street and Sixth Avenue. The court determined that this behavior justified the officer's minimal intrusion of approaching Irons to request information. During that conversation, when Police Officer Jaen stated that she recognized Irons as the man who jumped the turnstile earlier that day, the officers had probable cause to arrest Irons for theft of services. Finally, the court concluded that the fact that the police planned to question Irons about the series of robberies did not render the arrest unlawful since Officer Jaen's observation of Irons jumping the turnstile provided independent probable cause.

Next, the court determined that Iron's oral and written confessions to Detective Sweeney and Sergeant Stenrud were voluntary and admissible, that "no interrogation took place until after the petitioner was probably and fully Mirandized;" that Irons was read his Miranda warnings on four separate occasions and each time he "cleared his understanding of his rights and voluntarily and knowingly waived his right to remain silent and to consult an attorney"; that Irons was never subjected to any coercive techniques; rather, he was "extraordinarily cooperative during the entire time he was in police custody."

The court next determined that the lineup identifications were admissible as the lineups had been fairly conducted, and no pressure had been placed on any of the victims to make an identification. The court also noted that Irons was represented by counsel's investigator at both lineups. Finally, the court ruled that the property recovered from Irons' apartment was lawfully obtained since Irons and Cecilia Blake voluntarily consented to the search of the apartment and both Irons and Blake indicated that they understood that they were under no obligation to do so.

On March 30, 1998, Irons proceeded to trial before Justice Scherer and a jury, and the jury convicted Irons on three counts of First Degree Robbery, sixteen counts of Robbery in the Second Degree (twelve counts of Second-Degree Robbery (aided) and four counts of Second Degree Robbery (physical injury)), and one 13 count of Petit Larceny. The court conducted a persistent felony offender hearing on May 26 and June 8, 1998, and sentenced Irons to indeterminate prison terms of from twenty-five years to life for each of the first degree robbery counts, from twenty-five years to life for each of the second-degree robbery counts, and to one year for the petit larceny charge. The first degree counts were set to run consecutively to each other but concurrently with all of the other sentences, which ran concurrently with each other, for a total aggregate sentence of from seventy-five years to life imprisonment.

Irons appealed to the New York Supreme Court, Appellate Division, First Department in August of 2000, raising the following three claims:

(1) Whether the trial court committed reversible error when it refused to suppress statements made by petitioner, before his arraignment:
(2) Whether the trial court committed reversible error when it denied petitioner's motion to suppress evidence removed from petitioner's home;
(3) Whether the sentence petitioner received was excessive.
By order dated July 12, 2001, the Appellate Division unanimously affirmed Irons' convictions. The court found as follows:

At the time of [petitioner's] arrest for theft of services, he was found to be in possession of a piece of evidence connecting him to a past robbery. As a result, detectives sought to question defendant about that robbery and a series of similar robberies. [Petitioner's] confessions were not taken at a time when his arraignment was imminent, and there was no unnecessary delay in the arraignment. The judicial process had not begun, and further investigation, consisting of interrogation of [petitioner] on the more serious charges, was warranted (see People v. Brisman, 268 A.D.2d 279, lv denied, 95 N.Y.2d 793; People v. Hotchkiss, 260 A.D.2d 411, lv denied, 93 N.Y.2d 1003; People v. Quartieri, 171 A.D.2d 889, lv denied, 78 N.Y.2d 1079). Moreover, the total delay from arrest to arraignment was not unusual (see People ex rel. Maxian v. Brown, 77 N.Y.2d 422).
There is no evidence that [petitioner's] will was overborne by lengthy interrogation. On the contrary, [petitioner] began confessing to robberies at the outset of the interrogation, and the length of the interrogation resulted from the large number of separate robberies to which [petitioner] confessed.
The search of [petitioner's] apartment was based on the valid consent of both [petitioner] and his girlfriend. We have considered and rejected [petitioner's] remaining suppression arguments.
Irons filed a letter on September 12, 2001 in the New York Court of Appeals requesting leave to appeal the Appellate Division's decision. In the letter, Irons' counsel requested that the Court of Appeals "specifically" consider two claims:

(1) The delay in arraignment resulted in petitioner being denied his constitutional right to counsel and due process; and
(2) The trial court erred in denying petitioner's motion to suppress his pre-arrangement statements as well as the physical evidence gathered from petitioner's apartment.
The Court of Appeals denied leave to appeal in an order dated October 18, 2001.


Irons signed his petition on May 3, 2002, and it was stamped as officially filed with the Pro Se Clerk's Office of this Court on May 13, 2002. Generally, when a petitioner is pro se, the "mailbox rule" applies; the date of filing is determined from the date certified by the petitioner that the completed and signed petition was given to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 270-71 (1988); Dewindt v. Artuz, No. 97 CV 2138, 2002 U.S. Dist. LEXIS 9214, at *5 n. 3 (E.D.N.Y. May 23, 2002). Therefore, in this case the petition is deemed filed as of May 3, 2002.

Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, Irons had one year from the date on which judgment of conviction became final to file his habeas petition. 28 U.S.C. § 2244(d)(1)(A); Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). As Irons' leave application to the New York Court of Appeals was denied on October 18, 2001, he had one year from January 16, 2002, the date his ninety-day time limit to apply for a writ of certiorari to the United States Supreme Court elapsed, in which to file his petition. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), cert. denied, 534 U.S. 924 (2001) (where petitioner appeals conviction to highest state court but fails to file for writ of certiorari to U.S. Supreme Court, petitioner's time under AEDPA's one-year statute of limitations begins to run at expiration of ninety-day period during which petitioner may file petition for writ of certiorari). Thus, Iron's petition was due by January 18, 2003 to meet the statute of limitations cut-off. As his petition was received filed on May 5, 2002, he is within the prescribed time limit.


Under the exhaustion doctrine, state prisoners must give state courts a fair opportunity to act upon their claims before presenting them in federal court. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). This rule of comity requires that any and all claims of federal constitutional violations first be presented clearly to the highest available state court, including any discretionary court in the ordinary appellate process. Id. at 847, 119 S.Ct. at 1733; Acevedo v. Goord, No. 00 Civ. 8924, 2002 U.S. Dist. LEXIS 3258, at *20-21 (S.D.N.Y. Feb. 22, 2002). The burden is on a petitioner to demonstrate his compliance with this requirement. Clonce v. Presley, 640 F.2d 271, 273 (10th Cir. 1981). Additionally, the state courts need not have actually reviewed the claims raised. Rather, they must simply have been given a fair opportunity to do so. Aparicio v. Artuz, 269 F.3d 78, 87 n. 1 (2d Cir. 2001) (whether a state appellate court can properly 17 review a claim is a different question from whether the issue was raised in state court for the purpose of exhaustion).

In this case, Irons' first and second issued were exhausted because he raised these claims in federal constitutional terms in state court by citing to the Sixth and Fourteenth Amendments to the federal Constitution in his appeal to the New York Appellate Division. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (minimal reference to Fourteenth Amendment satisfies exhaustion requirement). And, Irons specifically argued these issues again in federal constitutional terms when asking the Court of Appeals to grant him leave to appeal, thereby effectively presenting these federal claims to the Court of Appeals for review. See Morgan v. Bennett, 204 F.3d 360, 370-71 (2d Cir. 2000), cert. denied, 531 U.S. 819 (2000).

Irons' third claim, that his sentence is excessive, was not argued in federal constitutional terms in his brief to the Appellate Division. To the extent that Irons attempt to broaden his sentence complaint to include an Eighth Amendment dimension, his claim is unexhausted. However, because Irons no longer has an available avenue to litigate such a constitutional claim in state court, his sentence claim should be deemed constructively exhausted and procedurally forfeited. Gray v. Netherland, 518 U.S. 152, 161-62, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 170 2d 18 Cir. 2000); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Irons may not refile a second direct appeal with the Appellate Division to raise this claim in federal constitutional terms.*fn3 Nor could he raise this claim in a second application for permission to appeal to the New York Court of Appeals.*fn4 Aparicio, 269 F.3d at 90; Reyes, 118 F.3d at 139; Hoke, 933 F.2d at 120.

In order to obtain review of his procedurally barred claim, Irons must establish either (1) that his default was for cause and he would be prejudiced by the federal court's refusal to hear his claim; or (2) that the court's failure to consider the claim would result in a fundamental miscarriage of justice (i.e., by providing new reliable evidence that petitioner is actually innocent). Coleman v. Thompson, 501 U.S. 722, 750 (1992); Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977); Aparicio v. Artuz, 269 F.3d at 90.

The existence of cause for a procedural default generally turns on whether a petitioner can show that some objective factor external to the defense impeded compliance with the state procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 497 (1986); Garrott v. U.S., 238 F.3d 905-06 (7th Cir. 2001); U.S. ex rel Brunt v. Walls, No. 00 CV 5772, 2002 U.S. Dist. LEXIS 2643, at *21 (N.D. Ill., Feb. 19, 2002) reconsideration denied, 2002 U.S. Dist. LEXIS 5697 (2002).

In order to demonstrate prejudice, Irons must show that there was actual prejudice, not merely errors that created a "possibility" of prejudice. Murray, 477 U.S. at 494; U.S. v. Frady, 456 U.S. 152, 167-70 (1982).

Both elements are necessary, and a showing of prejudice alone, without cause, will not permit habeas review. Murray, 477 U.S. at 494-95; Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985). Irons has failed to allege or to demonstrate cause, and thus his claim is barred. Moreover, the miscarriage of justice provision does not apply, as Irons has offered no new evidence that he is actually innocent.

Standard of Review

Under AEDPA, a habeas corpus court reviewing a federal claim that has been previously adjudicated on the merits in state court cannot issue the writ unless the state court's adjudication resulted in a decision that (1) was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Aparicio, 269 F.3d at 93; Acevedo, 2002 U.S. Dist. LEXIS 3258, at *13 (both cases quoting 28 U.S.C. § 2254(d)).

The Supreme Court has interpreted § 2254(d)(1) as giving independent meanings to the "contrary to" and "unreasonable application" clauses. Williams v. Taylor, 529 U.S. 362, 404 (2000) (Part II, O'Connor, J. for Court). A state court decision is "contrary to" clearly established federal law as determined by the Supreme Court "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Id. at 413. A state court decision involves an "unreasonable application" of Supreme Court precedent 21 if it "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case. Id.

When conducting the analysis, any determination of a factual issue made by a state court must be presumed correct unless petitioner can show by clear and convincing evidence that such presumption should not apply. Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001); Acevedo, 2002 U.S. Dist. LEXIS 3258, at *13 (citing to 28 U.S.C. § 2254(e)(1)). A petitioner bears the ultimate burden of proving violations of federal law by a preponderance of the evidence. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Sims v. Stinson, 101 F. Supp.2d 187 (S.D.N.Y. 2000).

The Delay In Arraignment Does Not Require Suppression

According to Irons, the police deliberately delayed his arraignment for the purpose of depriving him of his right to counsel and the twenty-seven hour delay between his arrest and his arraignment rendered his confessions involuntary. As an initial matter, under the United States Constitution the state has forty-eight hours in which to arraign a defendant arrested without a warrant for a determination of probable cause absent extraordinary circumstances. County of Riverside v. McLaughlin, 500 U.S. 44, 56, (1991); Gerstein v. Pugh, 420 U.S. 103 (1975); accord Herrera v. Senkowski, No. 99 Civ. 9083, 2001 U.S. Dist. LEXIS 11745 (S.D.N.Y. July 24, 2001)adopted by, 2002 U.S. Dist. LEXIS 3265 (S.D.N.Y. Feb. 27, 2002). Although a delay of less than forty-eight hours can violate federal law if a petitioner can demonstrate that the delay was unreasonable, the presumption remains that the state has acted lawfully up until that point. County of Riverside, 500 U.S. at 56-57.

Irons was arraigned twenty-seven hours after his arrest at 3:00 p.m. on August 21, 1997 for theft of services (turnstile jumping). Once that arrest had been processed, Irons was transferred to the Manhattan Robbery Squad office, arriving at approximately 5:30 p.m. for questioning concerning a number of pattern robberies. The interview concluded at midnight, and Irons was transported to another location for overnight lodging. The next day, Irons was taken to his apartment, on his consent, and further questioned, again with his cooperation and consent. He was taken to either Central Booking directly to the Arraignment Part sometime between 6:00 and 6:30 p.m., which would have been approximately twenty-seven hours after his arrest at 3:00 p.m. on the preceding day.

The officers limited their questioning to five hours on August 21, 1997 and two hours on the following day. During the remainder of the time, Irons was being transported, allowed to sleep and/or eat, and taken to his apartment for the consent search, during which time he was permitted to shower and change 23 clothes. Since the robbery investigations were necessary and conducted with reasonable dispatch, and there is no evidence that the police delayed Irons' arraignment in an attempt to keep him from consulting an attorney or to violate his other rights, Irons has not met his burden in showing unreasonable delay.

When Irons raised this same issue on direct appeal, the Appellate Division found that:

[Petitioner's] confessions were not taken at a time when his arraignment was imminent, and there was no unnecessary delay in the arraignment. The judicial process had not begun, and further investigation, consisting of interrogation of [petitioner] on the more serious charges, was warranted (see People v. Brisman, 268 A.D.2d 279, lv denied, 95 N.Y.2d 793; People v. Hotchkiss, 260 A.D.2d 241, lv denied, 93 N.Y.2d 1003; People v. Quartieri, 171 A.D.2d 889, lv denied, 78 N.Y.2d 1079). Moreover, the total delay from arrest to arraignment was not unusual (see People ex rel. Maxian v. Brown, 77 N.Y.2d 422).
Notably, the Second Circuit has found an arrest-to-arraignment period of seventy-two hours to be constitutionally acceptable in the New York City criminal justice system. Williams v. Ward, 845 F.2d 374 (2d Cir. 1988), cert. denied, 488 U.S. 1020 (1989). And habeas courts in this circuit have found intervening time periods of similarly substantial length to be insufficient standing alone to warrant an inference of intentional delay. Gonzalez v. Sullivan, No. 88 CV 1459, 1990 U.S. Dist. LEXIS 11432 (E.D.N.Y. Aug. 30, 1990), aff'd, 934 F.2d 419 (2d Cir. 1991) (forty-five hours between arrest and arraignment does not give rise 24 to right to counsel where none existed and does not warrant habeas relief where no evidence was presented to show intentional delay for improper purpose; hours alone cannot give rise to inference of intentional delay); Holmes v. Scully, 706 F. Supp. 195 (E.D.N.Y. 1989) (twenty-seven hour delay between arrest and arraignment is not in itself a constitutional violation and cannot give rise to a right to counsel where no such right exists; district court rejects habeas petitioner's claim that delay in arraignment requires suppression of lineup evidence under Fourth, Fifth and Sixth Amendments); see also Blount v. Keane, 91 Civ. 0115, 1992 U.S. Dist. LEXIS 12806, at *8 (E.D.N.Y. Aug. 6, 1992) (rejecting habeas petitioner's claim that right to counsel violated because arraignment "strategically delayed" to prevent right to counsel from attaching).*fn5

Secondly, as noted above, under the Supreme Court's pronouncement, a petitioner whose arraignment has been delayed less than forty-eight hours bears the burden of proving the delay was unreasonable before a federal constitutional violation will be deemed to have occurred, and in evaluating the reasonableness of such delay, "courts must allow a substantial degree of flexibility" and "cannot ignore" the "practical realities" attendant large metropolitan criminal justice systems. County of Riverside, 500 U.S. at 56-57. In this case, the suppression hearing evidence bears out that Irons was a suspect in many robberies, and it took several hours to go through all of the complaints and hear all of Irons' confessions.

No evidence was adduced to establish the delay was for reasons other than immediate investigations in the suspected robberies would buttress Irons' claim that the delay was an intentional, devious act on the part of the police to deprive him of his constitutional rights.

The Search Was Not Illegal

According to Irons, the tangible evidence used to convict him was gathered through an illegal search and seizure from his home.

However, it is well-settled that habeas review of Fourth Amendment claims previously litigated in state court are barred by Stone v. Powell, 428 U.S. 465 (1976). Under Stone,

where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.
Stone, 428 U.S. at 482; see also Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 755 (1978).

In this Circuit, federal courts can review the Fourth Amendment claims otherwise precluded by Stone only "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates, 568 F.2d at 840); accord McPhail v. Warden, Attica Corr. Facility., 707 F.2d 67, 69 (2d Cir. 1983).

In the case at bar, Irons has not made either showing. First, it has long been acknowledged that New York provides adequate procedures under C.P.L. § 710 et seq. for litigating Fourth Amendment claims. Capellan, 975 F.2d at 70 n. 1; Gates, 568 F.2d at 837; Gonzalez v. Artuz, No. 99 civ. 12277, 2001 U.S. Dist. LEXIS 20807 (S.D.N.Y. Dec. 12, 2001). In the instant case, Irons fully availed himself of these procedures to challenge the seizure of evidence. At the conclusion of the hearing, Judge Scherer denied the motion, finding as follows:

Finally, with respect to the Mapp aspect of the hearing, the property recovered from Ms. Blake's apartment was lawfully obtained. [Petitioner] and Ms. Blake both consented orally and in writing to the search of the apartment. Although the People have a heavy burden to show consent, the facts at this hearing support the conclusion that both parties understood that they were under no obligation to consent to the search. People v. Gonzalez, 39 N.Y.2d 122 (1976). No pressure or coercion was employed by the police. The fact that [petitioner] was in police custody when he gave his consent does not vitiate the voluntariness of his consent. People v. Gonzalez, supra, at 1228; People v. Estrella, 160 A.D.2d 250, 251 (1st Dept. 1990). [Petitioner] was not a novice to the criminal justice system. People v. Gonzalez, supra, at 129. He was extremely cooperative with the authorities prior to giving his consent. People v. Gonzalez, supra; People v. Estrella, supra; People v. Thomas, 144 A.D.2d 506 (2d Dept. 1988). The atmosphere at the apartment where police obtained the consent of [petitioner's] girlfriend was also not coercive. [Petitioner] was permitted to console his girlfriend, who was visibly upset about his arrest, and to take a shower and change his clothes before leaving the apartment. In sum, the totality of circumstances indicate that [petitioner] and Ms. Blake gave their consent voluntarily and knowingly. People v. Toro, 198 A.D.2d 532 (2d Dept. 1993); People v. Rose, 187 A.D.2d 617 (2d Dept. 1992).
"[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 133 (2d Cir. 2002). Federal intrusion is warranted only where petitioner is precluded from utilizing the existing procedural mechanism by reason of an "unconscionable breakdown" in that process. Gates, 568 F.2d at 840. As such is not the case at bar, and Irons received a full and 28 fair litigation on his Fourth Amendment claim, this claim must be dismissed.

Irons Has Not Established The Grounds To Challenge The Legality Of The Sentence

Irons has argued that his sentence of seventy-five years to life was unduly harsh. Irons was sentenced as a persistent felony offender pursuant to P.L. § 70.15, after receiving a hearing on May 26 and June 8, 1998 to determine Irons' past felony convictions. This statutory provision permits a court, when it "has found . . . that a person is a persistent felony offender" and is of the "opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest," to impose a sentence authorized for class A-1 felony. P.L. § 70.15. P.L. § 70.00(3)(a) authorizes a minimum of fifteen years to twenty-five years for an A-1 offender, and P.L. § 70.00(2)(a) authorizes a maximum sentence for A felonies of life imprisonment. In Irons' case, the court found that prior to his present offenses, he had been convicted of attempted burglary in the third degree in 1987, attempted robbery in the third degree in 1990, and robbery in the third degree in 1992,*fn6 therefore eligible for treatment as a persistent felon. The court then recounted Irons' long history of criminal conduct, beginning at the age of seventeen. He considered the manner in which he committed the current crimes, including the injuries he caused to his often elderly victims. As a result of these factors, the court sentenced Irons to twenty-five years to life on all counts but the petit larceny conviction, for which he ultimately imposed one year.*fn7 All of the sentences for first degree robbery were set to run consecutively to each other, and the sentences for second degree robbery and petit larceny were set to run concurrently with each other and with the sentences for first degree robbery. Imposition of the consecutive sentences was authorized by P.L. § 70.25 (where all of first degree robbery convictions arose from separate acts).

To the extent that Irons suggests that his lawful sentence as applied to him violates the Eighth Amendment's ban on cruel and unusual treatment, Irons has procedurally defaulted on this claim by failing to raise it in federal constitutional terms to the highest state court available. O'Sullivan, 526 U.S. 838; Reid, 961 F.2d 374; Gonzalez v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991). He has failed to even offer any objective, external factor that would explain this omission. Murray, 477 U.S. at 488, 497; Garrott v. United States, 238 F.3d 903, 905 (7th Cir. 2001). Because Irons has failed to assert "cause" for his default, this Court need not reach the prejudice issue to determine that this issue is barred from review. See Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 127 (2d Cir. 1995); Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985). Moreover, a petitioner entitled to an excusal of this procedural default under the miscarriage of justice exception must offer no "new evidence" to support an actual innocence claim. Schlup v. Delo, 513 U.S. 298, 327 (1995).


The application for a writ of habeas corpus is denied.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.

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