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December 6, 2004.

JOSE ROSA, Petitioner,
FRANK McCRAY, Superintendent, Gowanda Correctional Facility, and ELIOT L. SPITZER, New York State Attorney General, Respondents.

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


The matter before the Court presents a highly technical series of questions about the meaning and effect of an order of this Court granting habeas corpus relief. The unusual procedural posture of the case implicates this Court in conflicting obligations of comity and deference to the orders and calendars of two federal and one state court.

Petitioner was convicted in 1998 of robbery in the New York State courts. After unsuccessfully appealing his conviction through the state courts, he sought a writ of habeas corpus in this Court, arguing that his federal constitutional rights were violated by the admission into evidence of a post-arrest statement. On April 1, 2004, this Court (the Honorable Constance Baker Motley, J.) granted the writ, ordering that "[p]etitioner's convictions shall, therefore, be dismissed, unless a new trial is commenced within sixty days of the date of entry of this order." Respondents appealed that order, and his appeal, though fully argued and submitted, remains pending before the Second Circuit. Respondents sought a stay of this Court's order, which was denied by Judge Motley on April 26, 2004. On appeal, the Second Circuit affirmed this Court's denial of respondents' motion to stay the judgment in an oral order on June 15, 2004, which was reduced to writing on August 3, 2004. Nevertheless, more than seven months after this Court's order, which contemplated a retrial within 60 days, and some three months after the Second Circuit refused to stay that order, petitioner has not been retried, and remains incarcerated. Although the state court has vacated petitioner's former conviction, it has repeatedly adjourned his retrial, and has set bail pending that retrial, which petitioner cannot meet. Accordingly, petitioner remains in custody, awaiting a retrial that has not been scheduled. Petitioner now asks this Court to "enforc[e] [its] April 1, 2004, order by directing petitioner's unconditional release." The case has been administratively reassigned to me.

  Petitioner argues that the state court is in defiance of this Court's Order, which has not been stayed. He makes two interrelated arguments: (1) Petitioner contends that this Court expressly ordered that he be released if not retried within a specific time period, which has now elapsed. That period having expired, and the order in question not having been stayed or reversed, petitioner argues that he must be released immediately. (2) Petitioner also argues that Fed.R.App.P. 23(c) independently requires his release without bail, insofar as it commands that "[w]hile a decision ordering the release of a prisoner is under review, the prisoner must — unless the [federal courts] order? otherwise — be released on personal recognizance, with or without surety." Since this Court's order granting release is on appeal, and neither this Court nor the Court of Appeals has set bail or ordered him detained, petitioner concludes that he is entitled to immediate release.

  Respondents, on the other hand, point out that petitioner's conviction, which was found invalid by this Court, has been duly set aside. In respondents' view, petitioner is simply being treated like any other state indictee awaiting trial, for whom a reasonable bail can be set (and petitioner does not claim that the bail set by the state court is excessive). Respondents conclude that the order of this Court is being respected, since the state has vacated petitioner's conviction and acknowledged its obligation to grant him a retrial. In respondents' view, this is really all that this Court ordered, and its time limit is simply a time within which the state needs to act in recognition of its obligations, not a hard-and-fast deadline for retrial.


  I. The Merits of the Petition

  The order in question stems from an incriminating statement made by petitioner after his arrest. The robbery victim had described her assailant's hair as brown. While petitioner was being processed after his arrest, in the course of taking "pedigree" information, a detective asked petitioner, whose hair was "bright flaming blonde" and appeared to have been recently dyed, what his "real hair color" was. Petitioner replied that it was brown, and that he had dyed it the day before. Rosa v. McCray, No. 03 Civ. 4643 (CBM), 2004 WL 736859, at *1 (S.D.N.Y. Apr. 5, 2004). When the People sought to introduce this statement at trial, petitioner moved to exclude it, on the ground that he had not been provided with pre-trial notice of the statement, as required by NY CPL § 710.30. Following a hearing, the trial court allowed the statement to be introduced, holding that under the precedent of People v. Rodney, 85 N.Y. 2d 289 (1995), notice under § 710.30 was not required with respect to pedigree information. The Appellate Division affirmed the conviction, noting that "The People were not required to give notice pursuant to CPL § 710.30 . . . [as the statement was] made in response to a pedigree question asked as part of routine processing . . . [and] the officer's inquiry . . . was reasonably related to administrative concerns, and was neither intended, nor reasonably likely, to elicit an incriminating response." People v. Rosa, 743 N.Y.S. 2d 400, 401 (1st Dept. 2002). The New York Court of Appeals denied leave to appeal. See Rosa v. McCray, 2004 WL 736859, at *2-*4.

  Judge Motley determined that petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966), had been violated, because the question was indeed reasonably likely to elicit incriminating information, as it was not a routine booking question and the officer knew that the question, if answered truthfully, was likely to lead to an incriminating response. Rosa v. McCray, 2004 WL 736859, at *9-*10. Accordingly, the Court granted habeas relief, concluding that the state courts' resolution of the question was an unreasonable application of governing Supreme Court precedent. Id. at *10; see 28 U.S.C. § 2254(d).

  With all due respect to a distinguished fellow judge of this Court (as well as to the panel of the Court of Appeals that is now reviewing that judgment), I find the Court's reasoning problematic. It is difficult to see how the admission of petitioner's statement, assuming arguendo that Miranda warnings were not given and that the Miranda issue was properly presented to the state courts, could constitute an unreasonable application of Supreme Court precedent, as is required for habeas relief. A Supreme Court plurality has recognized a "routine booking question exception which exempts from Miranda's coverage questions [designed] to secure the biographical data necessary to complete booking or pretrial services." Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (Opinion of Brennan, J.) (internal quotation marks omitted). As Judge Motley recognized, see Rosa v. McCray, 2004 WL 736859, at *9, the Muniz plurality opinion "has been uniformly recognized . . . by the federal and state courts" as establishing such an exception. See Thomas v. United States, 731 A.2d 415, 421 (D.C. 1999) (collecting cases). The Second Circuit is part of this consensus. United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992).

  While Second Circuit caselaw, as Judge Motley emphasized, has "suggested that the exception is best `limited to simple identification of the most basic sort (e.g., name, address, marital status),'" Rosa v. McCray, 2004 WL 736859, at *9, citing United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 n. 2 (2d Cir. 1975), the Supreme Court has given only the most limited attention to the precise parameters of the exception. Nothing in Muniz itself provides definitive guidance on the scope of the exception, and the relevant discussion by the plurality neither cites nor endorses the Second Circuit's opinion in Hines.

  Moreover, to the extent that Justice Brennan's plurality opinion casts any light on this case, it is not inconsistent with the state court's conclusion. The Muniz plurality did not independently examine the necessity of the particular questions the police asked in order to complete the state's administrative objectives; rather, it simply noted that "[t]he state court found that the first seven questions were `requested for record-keeping purposes only,' and therefore the questions appear reasonably related to the police's administrative concerns." 496 U.S. at 601-02 (record citation omitted). The Supreme Court thus appears to have accepted the state court's determination that the questions were asked for administrative purposes as authoritative.*fn1 In contrast, Rhode Island v. Innis, 446 U.S. 291 (1980), on which Judge Motley heavily relied, Rosa v. McCray, 2004 WL 736859, at *10, provides little insight into the scope of the "pedigree" exception. Judge Motley appears to have concluded that questioning that constitutes "interrogation" under Innis cannot be considered "pedigree" questioning under Muniz. Id. But Innis predates Muniz, and Justice Brennan's opinion expressly holds that the questions in Muniz did constitute interrogation under Innis, but that the answers were nevertheless admissible due to the exception for pedigree information. Muniz, 496 U.S. at 600-02.

  Under these circumstances, the state courts' application of Miranda, Innis, and Muniz can only with great difficulty be considered an "unreasonable application" of Supreme Court precedent. 28 U.S.C. § 2254(d). The state courts identified the correct inquiry and applied the correct test. Reasonable jurists could disagree about the precise contours of the pedigree exception recognized in Muniz, and accordingly, that the state courts' conclusion that the question about hair color was "reasonably related to administrative concerns," and not "reasonably likely? to elicit an incriminating response," Rosa, 743 N.Y.S. 2d at 401, was a reasonable one.*fn2 Nevertheless, as petitioner points out, my views on the merits of his petition are not controlling. This Court has granted his petition, and the merits of that order are before the Court of Appeals, and no longer before this Court. This Court now has authority to enforce, but not to modify, its ...

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