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United States District Court, S.D. New York

June 9, 2005.


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 33).*fn3

  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. (Tr. 701).

  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, 762-63).

  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. 518).

  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 claim
(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 proceedings.
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 requirement).
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 purposes.

  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 conviction.

  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 the prosecution.

  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 corrected").

  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.


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