United States District Court, S.D. New York
June 9, 2005.
STEVEN GEORGISON, Petitioner,
JOHN DONELLI, Superintendent, BARE HILL CORRECTIONAL FACILITY, Respondent.
The opinion of the court was delivered by: DENNY CHIN, District Judge
Petitioner Steven Georgison brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was
convicted of assault in the first degree by a jury in the Supreme
Court of the State of New York, Bronx County, and is serving a
prison sentence of twelve years to life. Petitioner contends that
the trial court violated his right to due process and his right
against self-incrimination. The Court has reviewed the parties'
submissions and the record of the state court proceedings. For
the reasons that follow, the petition is denied. BACKGROUND
I. The Facts
A. The Assault on Alexander Fernandez
On the morning of June 22, 1993, Alexander Fernandez drove his
truck to the premises of Charles Green Corporation ("Charles
Green"), a company for which Fernandez's employer provided waste
removal services. (Tr. 569-73).*fn1 As Fernandez was loading
waste from containers into his truck, another truck, with
"Mongelli Carting Company" ("Mongelli Carting") written on the
side, approached. (Id. at 574-75). Petitioner and one other
person were in the Mongelli truck and, as Fernandez worked,
petitioner got out of the truck and approached him. (Id. at
576-78). Fernandez recognized petitioner from an incident a few
days earlier at the same location when petitioner had tried to
intimidate him. (Id. at 563-64, 576). Mongelli Carting had been
the previous vendor for Charles Green and had been involved in a
dispute with Charles Green. (Id. at 62, 69, 71-73, 96; Hr'g Tr.
42-43).*fn2 Petitioner and Fernandez exchanged hostile words
and Fernandez then turned around to continue his work. (Tr. 578-81).
A few seconds later Fernandez was struck with an object multiple
times, including at least once in the head, and suffered multiple
injuries. (Id. at 581-84, 586-89). Fernandez claimed that
during the attack, before losing consciousness, he looked up and
saw petitioner holding a black object "like a pipe." (Id. at
582-83; Hr'g Tr. 240). According to petitioner, two witnesses
were present when Fernandez was attacked Thomas Oddo, a
co-worker of petitioner who also worked for Mongelli Carting, and
Thomas Toppin, a Charles Green employee. (Pet'r Reply at
B. The Assault Investigation
Fernandez was interviewed by one or more police officers while
he was in the hospital. (Tr. 590; Hr'g Tr. 259-60). Fernandez
described his attacker and mentioned he had seen the attacker on
an earlier date. (Id.). Although Fernandez suffered from some
memory loss as a result of the incident, at trial he said that he
would never forget the face of the man who had assaulted him.
On August 30, 1993, Fernandez filed a civil lawsuit against
Mongelli Carting and two unidentified employees of the company
for the assault. (Hearing Decision at 6).*fn4 On September 16, 1993, Fernandez was visited by Detective
Joseph Lentini from the Organized Crime Investigation Division
(the "O.C.I.D.") of the New York City Police Department and an
investigator from the New York County District Attorney's Office.
(Tr. 738-39; Hr'g Tr. 99). Fernandez was shown six photo arrays
of six photographs each that were created using surveillance
photos taken at the location where the assault occurred. (Tr.
739-40, 754-55, 758-59). The photographs depicted men from the
shoulders up, about nine or ten of whom had features similar to
petitioner. (Id. at 759; Hr'g Tr. 100, 244, 286-88). Fernandez
picked petitioner's photo out of one of the arrays. (Tr. 761). By
the time of trial, the photo arrays had been lost. (Id. at 755,
On December 14, 1993 Fernandez amended the complaint in his
civil suit and named petitioner and Oddo as individuals who
assaulted him in June 1993. (Id. at 9).*fn5
Beginning in the early 1990s the City of New York had begun an
investigation into the waste carting industry. (Hr'g Tr. 39). In
June 1995, indictments were filed in New York County against seventeen individuals, including Louis Mongelli and Paul
Mongelli, owners of Mongelli Carting; twenty-three companies; and
four trade associations. (Id. at 39, 50). In addition to
attempted murder in the second degree, coercion in the first
degree, and numerous other crimes, the Mongellis were charged
with the assault on Fernandez. (Hearing Decision at 9-11).
Petitioner was not included in any of these indictments. (Id.).
Assistant District Attorney ("ADA") Patrick Dugan later testified
that "[t]he Manhattan District Attorney's Office did not have
jurisdiction to present the case against Georgison. The Bronx
District Attorney's Office could not have presented the case to a
Grand Jury because they were unaware of the evidence because it
was protected from disclosure." (Hr'g Tr. 56).
On February 27, 1996, while petitioner was incarcerated at
Riverview Correctional Facility on unrelated charges, he was
questioned by two detectives. (Tr. 514-16; Hr'g Tr. 135-36;
Hearing Decision at 10). Miranda warnings were not given,
petitioner was not given the opportunity nor did he request the
opportunity to make a phone call, and his attorney was not
contacted. (Hr'g Tr. 9, 13, 140-41, 158). Petitioner was not
forced to speak with the detectives but agreed to do so. (Id.
at 6-9, 10; Tr. 515-16). The interview was conducted in the
visitor's room of the prison and petitioner was not handcuffed.
(Hr'g Tr. 6-7). The detectives asserted that petitioner had
assaulted someone in June of 1993. (Id. at 137-138). Petitioner
responded, "I didn't pipe no one." (Id. at 138; Tr. 517). Apparently no one had mentioned anything about a pipe being used
in the assault. (Id.; Hr'g Tr. 138). The participants,
including an ADA who had entered the room, then discussed
petitioner's employers, the Mongellis, and petitioner's possible
cooperation in the waste carting investigation. (Id. at
139-40). According to the detectives, petitioner stated "I am not
going to rat on a person who gave me the best job I had, the only
job." (Id. at 139-40; see also Tr. 518). Petitioner was not
questioned about the crime for which he was incarcerated. (Hr'g
Tr. 140). Petitioner ended the interview by saying, "I can't talk
no more, I got to leave." (Id. at 141). He then walked out of
the room and was taken back to his housing unit. (Id. at 7,
141). There were no threats made to petitioner when he refused to
provide information about the Mongellis. (Id. at 7, 139-41; Tr.
On November 25, 1996, a New York County ADA and a detective
interviewed Fernandez and showed him six photographs. (Id. at
680-82; Hr'g Tr. 20-22). Fernandez again identified petitioner as
his assailant. (Id. at 22; Tr. 681). Subsequently, Fernandez
identified a photograph of petitioner during the criminal trial
of the Mongellis. (Hr'g Tr. 24-27). Finally, on February 18,
1998, Fernandez identified petitioner during a lineup at the
Criminal Court in Bronx County. (Tr. 590-91; Hr'g Tr. 145-148). II. Procedural History
A. The Pre-Trial Huntley, Wade, and Singer Hearings
On April 6, 1998, petitioner was indicted for two counts of
assault in the first degree, coercion in the first degree, and
criminal possession of a weapon in the third degree. (Hearing
Decision at 1). At the combined Singer, Huntley, and Wade
hearing from July 21 to 23, 1999, five witnesses testified for
the prosecution before Justice Bamberger. (Id.). An additional
session was held on October 14, 1999, during which Fernandez
testified. (Id. at 2). The court denied petitioner's motion to
dismiss the indictment for excessive pre-indictment delay and
also denied his motions to suppress identification testimony and
statements made to the police at the February 27, 1996 interview.
(Id. at 18, 20, 28). See also People v. Georgison,
750 N.Y.S.2d 18, 19 (App.Div. 2002).
In regard to the Singer issues, prosecutors called ADA
Patrick Dugan, who testified that the fifty-six month delay in
the indictment of petitioner was due to the ongoing investigation
of the waste carting industry. (Hr'g Tr. 39, 47-48, 56). Dugan
said the undercover aspect of the investigation had begun in May,
1992 and lasted for two and a half years. (Id. at 39-40).
Protective orders were issued on September 28, 1995, March 15,
1996, December 13, 1996, and April 28, 1997, to protect the
identity of witnesses. (Hearing Decision at 10). Dugan explained
that the orders were necessary because of the history of violence
in the waste industry. (Hr'g Tr. 44). Dugan also testified that information regarding the assault was not turned
over to the Bronx County District Attorney until shortly after
June 30, 1997. (Id. at 47, 56). Although the first protective
order was not issued until September 28, 1995, Dugan explained
that petitioner was not indicted prior to that date because the
undercover operation was underway and disclosure of information
related to the assault could have jeopardized the waste carting
investigation and put undercover officers and cooperating
witnesses at risk. (Id. at 77, 88-90).
B. The Trial and Verdict
In May 2000, a trial was held in the Supreme Court of the State
of New York, Bronx County before Justice Harold Silverman.
According to petitioner, at the time of trial he was unable to
locate the two people who he contends were present during the
assault on Fernandez, Thomas Oddo and Thomas Toppin. (Sell Aff.
Ex. 2 at 44-45).*fn6 On May 23, 2000 a jury convicted
petitioner of assault in the first degree under N.Y. Penal Law §
120.10(4) and on November 13, 2000, petitioner was sentenced to
twelve years to life.
C. Direct Appeal
Petitioner raised six claims on appeal to the Appellate
Division, First Department: (1) the fifty-six month
pre-indictment delay violated his right to a speedy trial; (2)
the admission of certain of his statements at trial violated his
right against self-incrimination and his Sixth Amendment right to
counsel; (3) pre-trial identification procedures and out-of-court
identification testimony deprived him of due process of law; (4)
removal of his daughter from the courtroom deprived him of his
right to a public trial; (5) the prosecutor's unsworn statements
made during the trial resulted in prejudice and deprived him of
his right to a fair trial; and (6) the prosecutor's summation was
highly prejudicial and deprived him of a fair trial. (Sell Aff.
Ex. 2). On November 12, 2002, the court unanimously affirmed
petitioner's conviction. Georgison, 750 N.Y.S.2d at 18. The
Appellate Division affirmed the Hearing Decision, finding that,
although there was a fifty-six month delay between the assault
and the indictment, there was no indication of bad faith by law
enforcement or specific prejudice to petitioner. Id. at 19.
Petitioner then sought leave to appeal to the New York Court of
Appeals, but leave was denied on February 21, 2003. People v.
Georgison, 757 N.Y.S.2d 825 (2003).
E. The Habeas Petition
On February 20, 2004, petitioner filed this habeas petition
seeking relief on the following grounds: (1) petitioner's
conviction was obtained through the use of incriminating
statements made by him without Miranda warnings, in violation
of the Fifth Amendment, and (2) the fifty-six month
pre-indictment delay violated his due process rights. DISCUSSION
I. The Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") "placed a new restriction on the power of federal
courts to grant writs of habeas corpus to state prisoners."
Williams v. Taylor, 529 U.S. 362, 399 (2000). AEDPA sets forth
new standards of review that make it more difficult for a habeas
petitioner to obtain federal relief from a state conviction.
AEDPA provides that:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that 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
28 U.S.C. § 2254(d)(1), (2).
The statute requires a petitioner to show not only that clearly
established federal law was incorrectly applied, but that the
application was unreasonable. See Williams, 529 U.S. at 411;
see also Lockyer v. Andrade, 538 U.S. 63, 66 (2003); Bell v.
Cone, 535 U.S. 685, 688-89 (2002). As the Second Circuit has
explained: "A state court decision is `contrary to' Supreme Court precedent only if it either `arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question of
law' or `confronts facts that are materially indistinguishable
from a relevant Supreme Court precedent and arrives at [the
opposite result].'" Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d
Cir. 2001) (quoting Williams, 529 U.S. at 405). The standards
set forth by AEDPA apply to all habeas petitions filed after the
statute's effective date of April 24, 1996. See Boyette v.
Lefevre, 246 F.3d 76, 88 (2d Cir. 2001) (citing Williams,
529 U.S. at 402).
II. The Merits*fn7
A. Miranda Violation
In his first claim, petitioner alleges that the trial court's
decision to admit statements at trial that were made by
petitioner to law enforcement officials without Miranda
warnings violated his Fifth Amendment right against
self-incrimination. (Pet'r Reply at 6-7). To determine whether
Miranda warnings are required, a central inquiry is whether the
statement at issue was made during custodial interrogation.
United States v. Rodriguez, 356 F.3d 254, 258 (2d Cir. 2004).
Custodial interrogation exists when a law enforcement
official questions an individual and that questioning
was (1) conducted in custodial settings that have
inherently coercive pressures that tend to undermine
the individual's will to resist and to compel him to
speak (the in custody requirement) and (2) when the inquiry is conducted by officers who are
aware of the potentially incriminatory nature of the
disclosures sought (the investigative intent
Id. (citing United States v. Morales, 834 F.2d 35
, 38 (2d
Cir. 1987) (citations omitted)).
1. The Custody Requirement
The Morales formulation of custody is used in cases in which
the individual being interrogated is incarcerated. See United
States v. Newton, 369 F.3d 659, 670-71 (2d Cir. 2004). According
to Morales, the custody requirement is met when the
"questioning [is] conducted in custodial settings that have
inherently coercive pressures that tend to undermine the
individual's will to resist and to compel him to speak."
834 F.2d at 38. One relevant factor is "whether a reasonable person would
have thought he was free to leave the police encounter at issue.
If the answer is yes, the Miranda inquiry is at an end; the
challenged interrogation did not require advice of rights."
Newton, 369 F.3d at 672.
In the current case, the record is clear that petitioner felt
free to leave the interrogation. Petitioner was questioned in the
visitor's room of the prison and was not restrained in any way.
See Leviston v. Black, 843 F.2d 302 (8th Cir. 1988) (finding
Miranda warnings were not required when an inmate who had
initiated a police inquiry voluntarily went to the prison
interview room, was able to end the conversation at anytime, and
was free to leave). Petitioner was not forced to answer any questions. In fact, he refused to answer certain
questions about his employers. See United States v. Scully,
415 F.2d 680, 684 (2d Cir. 1969) (finding that Miranda warnings
were not required when defendant was questioned at a police
station and ended the interrogation by refusing to answer any
more questions). Moreover, petitioner ended the questioning by
leaving on his own accord. As a result, I find that the
questioning was not conducted in a setting with "inherently
coercive pressures" that would have compelled petitioner to
speak. Accordingly, petitioner was not "in custody" for Miranda
Petitioner argues that under Mathis v. United States,
391 U.S. 1 (1968), a suspect questioned while incarcerated is said to
be in custody for Miranda purposes. (Pet. Reply at 8). In
Mathis, an incarcerated individual was interviewed by an
Internal Revenue Service ("IRS") agent about possible tax
violations. The Supreme Court found that the trial court was
wrong in permitting the introduction of the individual's
statements at trial because no Miranda warnings were given.
391 U.S. at 5. The Court in Mathis did not address what constituted
"in custody" or give any details of the circumstances in which
the defendant was questioned. More recent cases have found that
the mere fact of incarceration does not necessarily imply that an
individual is in custody and therefore entitled to Miranda
warnings. Newton, 369 F.3d at 670 (citing United States v.
Willoughby, 860 F.2d 15, 23 (2d Cir. 1988), and other circuit decisions); Rodriguez, 356 F.3d at 258 ("that Rodriguez was
incarcerated at the time of the interview may not be sufficient
for a finding of custodial interrogation").
Petitioner also argues that, in cases cited by respondent that
interpret Miranda, it was not the "presence or absence of
additional restraints" but "[r]ather it was the perceived
relationship between the prisoner and the individual to whom he
made the statements that determined whether or not the statements
were elicited in the course of custodial interrogation." (Pet.
Reply at 13 (discussing Illinois v. Perkins, 496 U.S. 292
(1990), Willoughby, 860 F.2d at 23, and Flittie v. Solem,
751 F.2d 967 (8th Cir. 1985)). While the relationship between
prisoner and interrogator is a relevant factor, these three cases
focus on whether coercive pressures existed at the time of the
interrogation. See Perkins, 496 U.S. at 296 ("Conversations
between suspects and undercover agents do not implicate the
concerns underlying Miranda. The essential ingredients of a
`police dominated atmosphere' and compulsion are not present when
an incarcerated person speaks freely to someone that he believes
to be a fellow inmate. . . . [T]he coercive atmosphere is
lacking."); Willoughby, 860 F.2d at 23 (even though defendant
was a prisoner there was not "compulsion above and beyond th[e]
confinement" that required him to speak); Flittie,
751 F.2d at 974 ("the theme underlying Miranda and its progeny is
government compulsion, and we see no such compulsion here"). In
the present case, although petitioner knew he was being questioned by detectives and was incarcerated, there is no other
evidence of compulsion. In fact, he felt free to decline to
answer questions and to end the questioning. I find that the
custody requirement was not met and therefore need not reach the
second prong of the Morales test.
The trial court's decision to allow statements obtained by
petitioner during the February 27, 1996 questioning to be
admitted at trial was not contrary to, and did not involve an
unreasonable application of, clearly established federal law. The
circumstances of this case clearly do not meet the rigorous
standard required by AEDPA to grant relief from a state
2. Harmless Error
Respondent argues that even if "the trial court wrongly
admitted petitioner's statement, the error was harmless." (Resp't
Mem. at 13).*fn8 This argument is well-founded, because
there was a significant amount of evidence other than
petitioner's statement to convict petitioner, including four
separate identifications by the victim. After considering the
evidence admitted at trial, it is apparent that, even if there
was error, it was not so harmful as to grant relief from the
state conviction. See Parsad v. Greiner, 337 F.3d 175 (2d
Cir. 2003). B. The Fifty-Six Month Delay
In his second claim, petitioner alleges that the fifty-six
month pre-indictment delay was a constitutional violation. In
United States v. Marion, the Supreme Court recognized that a
pre-indictment delay may violate the Due Process Clause.
404 U.S. 307, 324 (1971). "[I]n order to prevail on a claim of
unconstitutional pre-indictment delay, a petitioner must show
that he suffered actual prejudice as a result of the delay and
that the delay was an intentional device to gain a tactical
advantage." Denis v. Upstate Corr. Facility, 361 F.3d 759, 760
(2d Cir. 2004) (citing Marion, 404 U.S. at 324). The defendant
bears the heavy burden of proving both elements. United States
v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999). "Marion makes
clear that proof of prejudice is generally a necessary but not
sufficient element of a due process claim, and that the due
process inquiry must consider the reasons for the delay as well
as the prejudice to the accused." United States v. Lovasco,
431 U.S. 783, 790 (1977).
1. Actual Prejudice
If the indictment is brought within the applicable statute of
limitations, there is a presumption that the defendant was not
prejudiced. Cornielle, 171 F.3d at 752; see also Marion,
404 U.S. at 322. Criminal prosecutions brought within the statute
of limitations period "are only rarely dismissed." Id. at
751-741 (2d Cir. 1999); see also Schurman v. Leonardo,
768 F. Supp. 993, 999 (S.D.N.Y. 1991) (finding that a twelve-year
pre-indictment delay on a murder charge did not violate the defendant's due
process rights). In the present case the indictment was brought
almost five years after the incident, but within the five-year
statute of limitations, and thus the presumption is in favor of
Petitioner claims he suffered actual prejudice by the delay
because two key witnesses were missing at the time of his trial.
Apparently both Toppin and Oddo witnessed the attack, but at the
time of trial neither could be found. Merely asserting missing
witnesses, however, is not enough to show actual prejudice. See
Lovasco, 431 U.S. at 796 (finding that defendant's
constitutional rights were not violated even though he might have
been "somewhat" prejudiced as a result of an eighteen-month delay
during which time two witnesses had died); see also United
States v. Gotti, No. 02 Crim. 743 (RCC), 2004 U.S. Dist. LEXIS
45, *11 (S.D.N.Y. Jan. 6, 2004) (finding defendants were not
prejudiced by two allegedly unavailable witnesses because
defendants failed to provide details as to how the witnesses
would exculpate them).
Petitioner argues that it is a "catch-22" to require him to
provide a detailed proffer of the lost witnesses' testimony to
satisfy the actual prejudice requirement when those witnesses are
not available. (Pet. Reply at 33-34). Petitioner claims that if
he had been indicted in 1995 with the rest of the waste industry
cartel, he would have been able to rely on the testimony of
Toppin and Oddo. (Id. at 34). This argument is not convincing. It is not possible to say whether these witnesses
would have been available in 1995 and whether the witnesses would
have refuted Fernandez's testimony that petitioner was the
assailant. The existence of the missing witnesses, without any
details about the witnesses, the evidence they might provide, or
evidence to corroborate their significance in the case, does not
in itself demonstrate actual prejudice. See United States v.
Long, 697 F. Supp. 651, 657 (S.D.N.Y. 1988) ("[f]aded memories
or unavailable witnesses are inherent in any delay"); United
States v. Galardi, 476 F.2d 1072, 1075 (9th Cir. 1973), cert.
denied, 414 U.S. 839 (1973) ("[t]he assertion that a missing
witness might have been useful does not show the `actual
prejudice' required by Marion"). Here, neither Toppin nor Oddo
testified in the waste industry case, and the usefulness of the
witnesses is purely speculative.
Petitioner also suggests that because the photo arrays from
which Fernandez identified petitioner were missing, petitioner
was precluded from demonstrating at trial that the identification
"was the result of a suggestive identification procedure." (Pet'r
Mem. at 6).*fn9 The petitioner bears the burden of showing
what prejudice he suffered as a result of the missing
photographs, but he has offered no evidence to support the
argument that he was prejudiced by the procedure. See United
States v. Lawson, 683 F.2d 688, 694 (2d Cir. 1982) (finding that substantial prejudice was not demonstrated despite the
destruction of notes made by an eye witness who identified the
defendant because there was no showing that they contained
important evidence); cf. United States v. Gross,
165 F. Supp. 2d 372, 381 (E.D.N.Y. 2001) (finding that defendants had suffered
actual prejudice where documents were missing and substantial
evidence was offered to establish the role that the missing
documents would have played in defendants' case).
At the pretrial hearing, the court heard testimony regarding
the array and the prosecution produced forty-eight photographs of
the same type as the lost photographs, culled from surveillance
photographs taken during the waste industry investigation.
(Hearing Decision at 22). The state court found that the photo
array was not suggestive and the identification procedure was
conducted properly. (Id. at 25). Petitioner has not refuted
that finding and there is no evidence that the finding was
contrary to federal law or involved an incorrect and unreasonable
application of federal law.
Because petitioner has offered no detail as to why the missing
witnesses or the missing photo arrays would have affected the
outcome of the trial, I find that he did not suffer actual
prejudice as a result of the delay. He did not rebut the
presumption that his indictment, brought within the statute of
limitations deadline, should not be dismissed. As a result, there
is no indication that the state court violated federal law by
allowing the case against petitioner to proceed. 2. Tactical Advantage
Even if petitioner had suffered actual prejudice by the
pre-indictment delay, he has not demonstrated that the
prosecution intentionally caused the delay and was seeking to
gain a tactical advantage in the case, as must be shown to
prevail on a due process claim. Denis, 361 F.3d at 760.
Petitioner argues that the delay was unwarranted and that the
prosecution used various strategies to prejudice him.
Petitioner's first argument is that the waste industry
investigation ended long before he was indicted, demonstrating
that the prosecution would not have jeopardized the separate
investigation if it had brought an indictment earlier. The
investigation into the waste industry ended in June 1995 with the
indictment of various people and organizations involved in the
waste carting industry. A final verdict in the case was rendered
in October of 1997 for those defendants who did not plea guilty.
At that time petitioner's case was handed over to the Bronx
County District Attorney's Office.
Due to the threat of violence presented by the waste industry
investigation, respondent argues that the prosecution needed to
take extreme caution while that case was pending even after the
investigation had ended. At the Singer hearing, ADA Dugan
testified that in his opinion, had the case against petitioner
been brought in 1993, the whole investigation into the waste
industry cartel would have been severely damaged. (Hr'g Tr. 77,
88-89). In addition, he testified that Fernandez and other witnesses could have been in danger if petitioner's
indictment had been brought between 1993 and mid-1997. (Id. at
48). Indeed, orders protecting the identity of witnesses and
undercover agents were in place from June 1995 and continued with
some individuals past the end of the trial. (Id. at 45, 47).
Dugan testified that the New York County District Attorney's
Office did not have the proper jurisdiction to present a case
against petitioner, but that on June 30, 1997, shortly after
Fernandez testified in the waste industry trial, the Office
applied for an order to release to the Bronx County District
Attorney's Office information about the assault on Fernandez.
(Id. at 47, 56). The documents were unsealed in December of
1997 and, four months later, petitioner was indicted. (Resp't
Mem. at 15).
Nothing in this course of events suggests the delay was an
intentional device by prosecutors to gain a tactical advantage
and the state court did not violate clearly established federal
law by so finding. The New York County District Attorney's Office
demonstrated adequate reason for the delay and the Bronx District
Attorney's Office, according to the available testimony, was not
aware of the case until shortly after June 30, 1997. (Hr'g Tr.
47). Moreover, the delay in addition to being within the
statute of limitations period was reasonable. See, e.g.,
Denis, 361 F.3d at 760 (seventy-seven month delay in murder
indictment not unconstitutional); Cornielle (171 F.3d at 753)
(four-year delay in drug offense indictment not prejudicial). See also United States v. Rubin, 609 F.2d 51, 66 (2d Cir.
1979) (finding the prosecutor was "justified in not seeking the
indictment until she was convinced that there would be sufficient
evidence to prove guilt beyond a reasonable doubt"); United
States v. Langella, 776 F.2d 1078, 1083 (2d Cir. 1985), cert
denied, 475 U.S. 1019 (1986), (finding that a pre-indictment
delay was justified because of a related investigation that
required secrecy); United States v. Tanu, 589 F.2d 82, 89-90
(2d Cir. 1978) (finding "no intentional device to gain a tactical
advantage" despite "an extraordinary lack of liaison between
state and federal prosecutors, which should have been
Second, petitioner alleges that the New York and Bronx County
District Attorney Offices made a decision to close petitioner's
assault case in the Bronx and turn it over to the O.C.I.D. in New
York County on July 22, 1993. (Pet. Reply at 31). There is no
evidence of such a decision or of the Bronx District Attorney's
Office awareness of petitioner's case at that time.
Third, petitioner argues that the timing of his interrogation
and his indictment were tactical decisions by prosecutors. He was
almost up for parole on unrelated charges when the two detectives
and the ADA questioned him. Petitioner argues that this was an
attempt to "coerce him into cooperating with their prosecution of
the [waste industry] case in New York County." (Pet. Reply at 32). There is not, however, any evidence
of coercion. The date of the interview was shortly before the
trial of petitioner's employers, so obtaining information for the
trial could also have been the reason for interviewing petitioner
at that time. Petitioner also points out that the prosecution
waited until two months before the statute of limitations would
have run before indicting him. (Id. at 32). Prosecutors might
have been aware that they had to bring the case before the
statute of limitations expired, but such consideration does not
constitute "intentional device to gain a tactical advantage."
Petitioner did not meet the heavy burden of showing that the
delay was an intentional device, or that petitioner suffered
actual prejudice, as required by Marion. The trial court's
decision that the fifty-six month delay did not violate
petitioner's due process rights was not contrary to, or involve
an unreasonable application of, clearly established federal law.
As a result, the claim is denied.
For the reasons set forth above, petitioner's application for a
writ of habeas corpus is denied, and the petition is dismissed.
Because petitioner has not made a substantial showing of the
denial of a constitutional right, I decline to issue a
certificate of appealability. See 28 U.S.C. § 2253 (1996) (as
amended by the Antiterrorism and Effective Death Penalty Act). The Clerk of the Court shall enter judgment
dismissing the petition and the case shall be closed.