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.
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 ...