Georgison v. Donelli, No. 05-5885 (2d Cir. 2009)
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05-5885-pr Georgison v. Donelli 1 2 3 4 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: May 15, 2009 Decided: December 7, 2009) 5 6 Docket No. 05-5885-pr ______________________________________________________________________________ 7 STEVEN GEORGISON, 8 9 10 11 Petitioner-Appellant, - v. JOHN J. DONELLI, BARE HILL CORRECTIONAL FACILITY, 12 Respondent-Appellee. 13 14 ______________________________________________________________________________ Before: MINER, WESLEY, Circuit Judges, and STANCEU, Judge.* 15 16 17 18 19 20 21 Appeal from a judgment entered June 9, 2005, in the United States District Court for the Southern District of New York (Chin, J.) denying petitioner-appellant s petition for a writ of habeas corpus challenging his New York State conviction for assault in the first degree on the ground that his rights under the Fifth Amendment of the United States Constitution were violated by the admission in evidence of incriminating statements made by the petitioner to police detectives who interviewed him while he was incarcerated on an unrelated conviction and without affording him the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966). 22 Affirmed. 23 24 SUSAN M. DAMPLO, The Legal Aid Society, Criminal Appeals Bureau, Ardsley, N.Y., for Petitioner-Appellant 25 26 STANLEY R. KAPLAN, Assistant District Attorney, Bronx County (Joseph N. Ferdenzi, Assistant District * The Honorable Timothy C. Stanceu, Judge of the United States Court of International Trade, sitting by designation. 1 2 3 4 Attorney, on the brief; Robert T. Johnson, District Attorney, Bronx County), Bronx, N.Y., for RespondentAppellee MINER, Circuit Judge: 5 Petitioner-appellant Steven Georgison ( Georgison ) appeals from a June 9, 2005 6 judgment entered in the United States District Court for the Southern District of New York 7 (Chin, J.) denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. 8 Georgison v. Donelli, No. 04 Civ. 1444 (DC), 2005 WL 1384015, *10 (S.D.N.Y. June 9, 2005). 9 Georgison was convicted after a jury trial conducted in the New York State Supreme Court, 10 Bronx County (Bamberger, J., suppression hearing; Silverman, J., trial and sentencing) on one 11 count of assault in the first degree, in violation of New York Penal Law § 120.10[4]. Id. at *3. 12 Following unsuccessful appeals in state court, People v. Georgison, 750 N.Y.S.2d 18 (App. Div. 13 2002), leave denied, 99 N.Y.2d 614 (2003), and the denial of his habeas petition in the District 14 Court, we granted a certificate of appealability. The certificate was granted to allow review of 15 Georgison s claim that his Fifth Amendment rights were violated by the admission in evidence of 16 an inculpatory statement given to police investigators without affording him the warnings 17 prescribed by Miranda v. Arizona, 384 U.S. 436 (1966). The statements were given during 18 Georgison s incarceration at the Riverview Correctional Facility on an unrelated conviction. For 19 the reasons that follow, we hold that the state court s application of clearly established federal 20 law, as determined by the United States Supreme Court, was not objectively unreasonable in this 21 case, and, accordingly, that the application for a writ of habeas corpus was properly denied. 22 I. 23 BACKGROUND A. The Assault of Alexander Fernandez and Investigation of Georgison -2- 1 In June of 1993, Alexander Fernandez was employed as a truck driver for Chambers Paper 2 Fibers ( Chambers ), a private sanitation company. One afternoon in the early part of that 3 month, while Fernandez was picking up refuse, he saw Georgison standing no more than three 4 feet away from him. Fernandez kept an eye on Georgison for about two minutes and resumed his 5 duties without further incident. Georgison, 2005 WL 1384015, at *1. 6 Later that month, on the morning of June 22, 1993, Fernandez drove his truck to the 7 premises of Charles Green Corporation ( Charles Green ), a company in the Bronx, New York, 8 for which Chambers provided waste removal services. Id. While Fernandez loaded waste from 9 containers into his truck, another private sanitation truck, with Mongelli Carting Company 10 ( Mongelli Carting ) written on the side of the vehicle, approached. Id. Mongelli Carting had 11 been the previous vendor for Charles Green and had been involved in a dispute with Charles 12 Green. Id. Fernandez saw Georgison sitting in the passenger s seat of the approaching truck. Id. 13 Fernandez, who was about twenty to twenty-five feet away from the Mongelli Carting truck, 14 observed Georgison for about twenty seconds as the driver of the truck drove the vehicle into the 15 loading bay on the Charles Green premises. Once Georgison exited the vehicle, he engaged in a 16 brief argument with Fernandez regarding a blockade that Mongelli purportedly was conducting 17 against other garbage carting companies. 18 After arguing and exchanging hostile words, Fernandez turned around to continue his 19 work. Id. A few seconds later, Fernandez was struck from behind several times and knocked to 20 the ground. Id. He was struck in the head at least once. Id. Fernandez claimed that during the 21 attack, and before losing consciousness, he looked up and saw Georgison holding a black object 22 like a pipe. Id. (quotation marks and citation omitted). According to Georgison, two witnesses -3- 1 were present when Fernandez was attacked: one of Georgison s co-workers, Thomas Oddo 2 ( Oddo ), and a Charles Green employee, Thomas Toppin. Id. 3 While Fernandez was in the hospital following the attack, he was interviewed by the 4 police. Id. During a conversation with a police detective, Fernandez described his attacker and 5 mentioned that he had seen the attacker on an earlier date. Id. Although Fernandez suffered 6 from some memory loss as a result of the incident, he later stated at Georgison s trial that he 7 would never forget the face of the man who had assaulted him. Id. 8 9 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 10 Department and an investigator from the New York County District Attorney s Office. Id. 11 Fernandez was shown six photographic arrays of six photographs each that were created using 12 surveillance photos taken during a blockade at the location where the assault occurred. Id. The 13 pictures depicted men from the shoulders up, and about nine or ten of the men had features 14 similar to Georgison s. Id. When Fernandez came to Georgison s photograph, he identified 15 Georgison without hesitation as the person who had assaulted him.1 Id. However, Georgison 16 was not arrested at that time. 17 On December 14, 1993, Fernandez filed an amended complaint in his civil lawsuit for 18 assault against Mongelli Carting. Georgison, 2005 WL 1384015, at *2. The original lawsuit was 19 filed on August 30, 1993. The amended complaint identified Georgison and Oddo as the 20 individuals who had assaulted him on June 22, 1993. Id. 1 By the time of Georgison s trial, these photographic arrays had been lost. Georgison, 2005 WL 1384015, at *1. -4- 1 Approximately three years later, on February 27, 1996, Detectives Patrick McLoughlin and 2 John Prindle of the O.C.I.D., as well as New York County Assistant District Attorney ( ADA ) 3 Jonathan Davis visited the Riverview Correctional Facility ( Riverview ) to talk to Georgison 4 about the assault on Fernandez.2 At that time, Georgison was serving a sentence for an unrelated 5 robbery conviction. 6 Sergeant Richard Peacock, a correctional sergeant at the facility, received a call from his 7 watch commander instructing him to ask Georgison if he was willing to speak with the 8 detectives. There were no rules or regulations in effect at the facility requiring an inmate to 9 speak with visitors such as detectives or assistant district attorneys. Sergeant Peacock asked 10 Georgison if he was willing to talk to the detectives. Sergeant Peacock did not threaten 11 Georgison or make any promises to him. Georgison agreed to speak with the detectives. After 12 the detectives and ADA Davis were escorted to the visitors room, Georgison was brought there 13 by Sergeant Peacock. The visitors room contained tables, chairs, and vending machines. 14 Georgison was not handcuffed. Id. at *2. Sergeant Peacock opened the door to the room, and 15 Georgison entered alone while the sergeant waited outside. ADA Davis also waited outside 16 while the detectives began their interview of Georgison. The detectives were unarmed during 2 The District Court explained in its thorough Memorandum Decision that, beginning in the early 1990s, the City of New York had begun an investigation into the waste carting industry. In June of 1995, indictments were filed in New York County against several individuals, including Louis Mongelli and Paul Mongelli, the owners of Mongelli Carting. The Mongellis were charged with several serious crimes, including the assault of Fernandez. Georgison was not included in any of these charges or indictments. A New York County ADA testified in state court that the Manhattan District Attorney s Office did not have jurisdiction to present the case against Georgison. [And t]he Bronx [County] District Attorney s Office could not have presented the case to a [g]rand [j]ury because they were unaware of the evidence [against Georgison] because it was protected from disclosure due to the ongoing investigation at that time into the waste carting industry. Georgison, 2005 WL 1384015, at *2. -5- 1 2 their entire time in the visitors room. During the interview, the detectives stated that Georgison had assaulted someone in June 3 of 1993. Id. In response, Georgison said: I didn t pipe no one. The detectives had not 4 mentioned anything about a pipe being used in the assault. Id. Georgison did admit, however, 5 that his route on the day of the assault included the premises where the assault had taken place. 6 The detectives then asked ADA Davis to enter the room, and the ADA reiterated to Georgison 7 that he and the detectives were there to investigate the assault. The detectives then asked 8 Georgison if he would like to know what would happen to the assault charge if he cooperated 9 with the investigation and told them complete details of what happened. Georgison responded, 10 I wasn t going to be a rat, I am not going to rat on a person who gave me the best job I had, the 11 only job. The interview ended when Georgison stated I can t talk no more, I got to leave, at 12 which time Georgison walked out of the room. Id. After Georgison left the room and told the 13 sergeant that he was done, the sergeant walked him back to his housing unit in the facility. 14 Georgison, 2005 WL 1384015, at *2. 15 Georgison never was given Miranda warnings prior to, during, or after the interview. Id. 16 In addition, both the detectives and ADA Davis knew that Georgison was incarcerated for a 17 robbery conviction, and at no point during their questioning of Georgison did they discuss that 18 crime. Detective McLoughlin neither knew nor tried to find out whether Georgison was 19 represented by counsel. Georgison also never asked to speak to an attorney, and he did not ask to 20 make any phone calls. Georgison, 2005 WL 1384015, at *2. 21 On November 25, 1996, a New York County ADA and a police detective interviewed 22 Fernandez and showed him six photographs. It is not clear whether these photographs were -6- 1 included in the array of photographs shown to Fernandez in 1993. In any event, Fernandez again 2 identified Georgison as the assailant. Thereafter, Fernandez identified a photograph of 3 Georgison during the criminal trial of Louis and Paul Mongelli, the owners of Mongelli Carting. 4 Id. On February 18, 1998, Fernandez also identified Georgison during a lineup at the Criminal 5 Court in Bronx County, New York. Id. 6 B. 7 8 9 State Court Proceedings 1. The Suppression Hearing On April 6, 1998, Georgison was indicted in Bronx County Supreme Court of the State of New York on two counts of assault in the first degree, in violation of New York Penal Law § 10 120.10[4]; coercion in the first degree, in violation of New York Penal Law § 135.65; and 11 criminal possession of a weapon in the third degree, in violation of New York Penal Law § 12 265.02. Id. at *3. At a combined Singer, Huntley, and Wade hearing held in the state trial court 13 from July 21 to 23, 1999, five witnesses testified for the prosecution. Id. See generally People v. 14 Singer, 44 N.Y.2d 241, 255 (1978) (providing a defendant with a pre-trial hearing to determine 15 whether a pre-indictment delay was reasonable); People v. Huntley, 15 N.Y.2d 72, 78 (1965) 16 (providing a criminal defendant with a pre-trial hearing to determine whether statements are 17 admissible); United States v. Wade, 388 U.S. 218, 242 (1967) (providing a defendant with a pre- 18 trial hearing to determine whether a pretrial identification of a defendant has an independent 19 basis of reliability and is therefore admissible during trial).3 An additional session was held on 3 With regard to Singer issues raised by Georgison, 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. Dugan testified that the undercover aspect of the investigation had begun in May 1992 and lasted for two and a half years. Protective orders (continued...) -7- 1 October 14, 1999, during which Fernandez testified. Georgison, 2005 WL 1384015, at *3. 2 In a written decision dated November 4, 1999, the state court (Bamberger, J.) denied 3 Georgison s motion to dismiss the indictment for excessive pre-indictment delay and also denied 4 his motions to suppress identification testimony and statements made to the police at the 5 February 27, 1996 interview at the Riverview Correctional Facility. Georgison, 2005 WL 6 1384015, at *3; see also People v. Georgison, 750 N.Y.S.2d 18, 19 (App. Div. 2002). Georgison 7 had sought to suppress the statements that he had made during the interview at Riverview; to wit, 8 that he didn t pipe no one ; that his carting route at the time of the assault would have brought 9 him to the location of the assault; and that he would not be a rat against his employer. The 10 state court relied on the New York Court of Appeals decision, People v. Alls, 83 N.Y.2d 94 11 (1993), cert. denied, 511 U.S. 1090 (1994), which held that Miranda warnings only need to be 12 given to an inmate questioned in a correctional facility when the circumstances of the detention 13 and interrogation . . . entail added constraint that would lead a prison inmate reasonably to 14 believe that there has been a restriction on that person s freedom over and above that of ordinary 15 confinement. 83 N.Y.2d at 100. 16 2. Trial and Conviction 3 (...continued) were issued on September 28, 1995, March 15, 1996, December 13, 1996, and April 28, 1997, to protect the identity of witnesses. Dugan also testified that the orders were necessary because of the history of violence in the waste industry. Dugan explained that information regarding the assault was not turned over to the Bronx County District Attorney until shortly after June 30, 1997. Although the first protective order was not issued until September 28, 1995, Dugan stated that Georgison 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. Georgison, 2005 WL 1384015, at *3. -8- 1 In May 2000, a trial was held in the Supreme Court of the State of New York, Bronx 2 County (Silverman, J.). Georgison, 2005 WL 1384015, at *3. Georgison claimed at trial that he 3 was unable to locate the two people whom he contended were present during the assault on 4 Fernandez Thomas Oddo and Thomas Toppin. Id. At trial, the state s evidence presented 5 included a narration of the background facts detailed above. Evidence at trial also included 6 testimony regarding Fernandez s injuries, which included a laceration on the back right side of 7 his head, a broken second finger on his left hand, three or four linear welt marks on his right back 8 in the shoulder area, and another linear welt on his lower anterior belly. Fernandez also suffered 9 a contusion on his brain. 10 On May 23, 2000, a jury convicted Georgison of assault in the first degree, in violation of 11 N.Y. Penal Law § 120.10[4]. On November 13, 2000, Georgison was sentenced to twelve years 12 to life. Judgment was entered in state court, and Georgison appealed. Georgison, 2005 WL 13 1384015, at *3. 14 3. 15 Appellate Proceedings On direct appeal to the New York Supreme Court, Appellate Division, First Department, 16 Georgison claimed that (1) pre-indictment delay of four years and eight months violated his 17 statutory and constitutional speedy trial rights, (2) the admission of his statements made in prison 18 violated his Fifth and Sixth Amendment rights against self-incrimination and to counsel, 19 respectively, (3) the pre-trial identification procedures were unduly suggestive and out-of-court 20 identification testimony was impermissibly bolstered, depriving him of due process, (4) the 21 removal of Georgison s daughter from the courtroom deprived him of his right to a public trial, 22 (5) the prosecutor made unsworn statements that prejudiced him and deprived him of a fair trial, -9- 1 and (6) the prosecutor s summation unfairly prejudiced him. Georgison, 2005 WL 1384015, at 2 *3. 3 In a decision dated November 12, 2002, the Appellate Division, First Department, 4 unanimously affirmed Georgison s conviction. People v. Georgison, 750 N.Y.S.2d 18 (App. 5 Div. 2002). With respect to the admission of Georgison s statements, the court held: 6 7 8 9 10 11 12 13 14 15 16 [Georgison s] motion to suppress statements was properly denied. The statements made by [Georgison] to the police while incarcerated on an unrelated matter were voluntary and admissible. [Georgison s] incarceration did not require Miranda warnings, since the hearing evidence established that there were no restrictions on [Georgison s] freedom over and above ordinary prison confinement. [Georgison] agreed to be interviewed, and the fact that prison officials moved him to the same visiting room where inmates routinely receive visitors did not constitute the type of restraint requiring Miranda warnings. Georgison, 750 N.Y.S.2d at 19. On February 21, 2003, the New York State Court of Appeals denied Georgison leave to appeal the decision of the Appellate Division. People v. Georgison, 99 N.Y.2d 614 (2003). Federal Habeas Proceedings 17 C. 18 In papers filed on February 20, 2004, in the United States District Court for the Southern 19 District of New York, Georgison sought a writ of habeas corpus claiming that (1) his conviction 20 was wrongfully obtained by the use of incriminating statements given in the absence of Miranda 21 warnings, and (2) a delay of fifty-six months in obtaining the indictment with which he was 22 charged, during which time he claimed two witnesses disappeared and evidence was lost, denied 23 him due process. Georgison, 2005 WL 1384015, at *4. Specifically, with regard to the Fifth 24 Amendment/Miranda claim, Georgison argued that, pursuant to Mathis v. United States, 391 25 U.S. 1 (1968), and Estelle v. Smith, 451 U.S. 454 (1981), the statements elicited from him while -10- 1 he was incarcerated in state prison on another charge should not have been admitted because he 2 was not given Miranda warnings while he was in custody by virtue of his incarceration. 3 In a decision dated June 9, 2005, the District Court denied Georgison s petition for a writ 4 of habeas corpus. With regard to the statements that Georgison had made to officers in the 5 visitors room, the court determined, relying upon, inter alia, United States v. Morales, 834 F.2d 6 35 (2d Cir. 1987), United States v. Newton, 369 F.3d 659 (2d Cir. 2004), Leviston v. Black, 843 7 F.2d 302 (8th Cir. 1988), and United States v. Scully, 415 F.2d 680 (2d Cir. 1969), that 8 Georgison was not in custody for purposes of Miranda because he arrived at the interview 9 voluntarily, was not restrained during the interview, was questioned in the visitors room at the 10 prison, and possessed and exercised his rights to refuse to answer questions and to leave the 11 interview when he wished. Georgison, 2005 WL 1384015, at *5. The court further held that 12 even if the admission of the statements were erroneous, it was harmless because there was a 13 significant amount of evidence other than [Georgison s] statement to convict [Georgison], 14 including four separate identifications by the victim. Id. at *6. 15 In its Memorandum Decision, the District Court declined to issue a certificate of 16 appealability to Georgison because he has not made a substantial showing of the denial of a 17 constitutional right. Georgison, 2005 WL 1384015, at *10. 18 Georgison then filed a motion with this Court seeking a certificate of appealability and in 19 forma pauperis status. By order filed February 20, 2008, this Court granted Georgison s motion 20 with regard to his claim that the admission at trial of his inculpatory statement, given to 21 investigators during an interview conducted while he was incarcerated . . . on unrelated charges, 22 was unconstitutional under Miranda v. Arizona, 384 U.S. 436 (1966). -11- 1 2 3 4 II. ANALYSIS A. Standard of Review Under the Antiterrorism and Effective Death Penalty Act of 1996 This Court reviews the district court s denial of a petition for a writ of habeas corpus de 5 novo. Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001). Our review, however, is constrained 6 by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 7 1214 (codified at 28 U.S.C. § 2254) ( AEDPA ). Under AEDPA, we may not consider claims 8 that have not been exhausted by fair presentation to the state courts. See 28 U.S.C.2254(b)(1); 9 Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009) (citing Baldwin v. Reese, 541 U.S. 27, 29 10 (2004)). A federal court must consider whether a habeas petitioner adequately exhausted state 11 remedies by fairly presenting both the factual and legal premises for his federal claim to the 12 appropriate state courts. See 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. at 30 34. This 13 requirement of exhaustion is strict and reserves only few and narrow exceptions: Where a 14 defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may 15 be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, 16 or that he is actually innocent. Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (quoting 17 Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal quotation marks omitted). 18 Although the necessity to exhaust is strict, however, the standard for determining whether 19 exhaustion has been met is relatively low. See Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 20 2005) (stating that the Supreme Court has warned against interpreting whether exhaustion has 21 been met too narrowly). In the case at bar, it is not disputed, and we agree, that all constitutional 22 issues raised in Georgison s brief have been exhausted for purposes of 28 U.S.C. § 2254(b). -12- 1 Once it is determined that a petitioner has procedurally exhausted his claims for purposes 2 of AEDPA, our de novo review is limited by standards of deference mandated by 28 U.S.C. § 3 2254(d). Acosta, 575 F.3d at 184. Under section 2254(d), a federal court may not vacate a state 4 conviction and grant habeas relief to a state prisoner with respect to any claim that was 5 adjudicated on the merits in State court . . . unless the adjudication of the claim . . . resulted in a 6 decision that was [1] contrary to, or involved an unreasonable application of, clearly established 7 Federal law, as determined by the Supreme Court of the United States, or was [2] based on an 8 unreasonable determination of the facts in light of the evidence presented in the State court 9 proceeding. 28 U.S.C. § 2254(d). 10 We must assess the state court s decision in light of the record the court had before it, 11 Acosta, 575 F.3d at 184 (quoting Holland v. Jackson, 542 U.S. 649, 652 (2004)). A state court s 12 decision is then contrary to clearly established federal law, as expressed by the Supreme Court, 13 if the state court arrives at a conclusion opposite to that reached by [the] Court on a question of 14 law or if the state court decides a case differently than [the] Court has on a set of materially 15 indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 13 (2000). [C]learly 16 established Federal law under § 2254(d)(1) is the governing legal principle or principles set 17 forth by the Supreme Court at the time the state court renders its decision. Lockyer v. Andrade, 18 538 U.S. 63, 71 72 (2003); see also Brisco v. Ercole, 565 F.3d 80, 87 (2d Cir. 2009). It is the 19 petitioner s burden to demonstrate that the state court applied the relevant clearly established law 20 to that record in an objectively unreasonable manner. Id. (citing Woodford v. Viscotti, 537 U.S. 21 19, 25 (2002); Sorto v. Herbert, 497 F.3d 163, 166 67 (2d Cir. 2007)). An unreasonable 22 application of clearly established federal law occurs if [a] state court correctly identifies the -13- 1 governing legal rule but applies it unreasonably to the facts of a particular prisoner s case, or 2 refuses to extend a legal principle that the Supreme Court has clearly established to a new 3 situation in which it should govern. Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 4 2006) (quoting Williams, 529 U.S. at 407 08). To this end, the increment [of incorrectness 5 beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions 6 so far off the mark as to suggest judicial incompetence. Id. (alteration in original) (quoting 7 Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). [C]onflating unreasonableness with 8 clear error is improper because [t]he gloss of clear error fails to give proper deference to state 9 courts. Id. at 87 88 (quoting Lockyer v. Andrade, 538 U.S. 63, 75, (2003)). 10 11 12 B. The Merits of Georgison s Challenge to the Admission of His Statements at the Riverview Correctional Facility Georgison argues that the District Court erred in concluding that the New York state courts 13 did not unreasonably apply federal law insofar as those courts determined that Georgison was 14 never in custody for purposes of Miranda because he was not shackled or otherwise subject to 15 unusual restraints above those of ordinary incarceration. Specifically, Georgison asserts that the 16 state court s decision and reasoning was contrary to clearly established federal law determined by 17 the Supreme Court of the United States, as set forth in Mathis v. United States, 391 U.S. 1 18 (1968). According to Georgison, Mathis stands for the proposition that persons in prison are per 19 se in custody for purposes of Miranda and therefore must be advised of their rights prior to 20 questioning by agents of law enforcement. We decline to interpret Mathis in the manner so 21 urged for the reasons given below. 22 The Constitution mandates that no person . . . shall be compelled in any criminal case to -14- 1 be a witness against himself. U.S. CONST . amend. V. This protection from compulsory 2 self-incrimination extends to the states through the Fourteenth Amendment. See Malloy v. 3 Hogan, 378 U.S. 1, 6 (1964). In Miranda v. Arizona, the Supreme Court held that the 4 in-custody interrogation of persons suspected or accused of crime contains inherently 5 compelling pressures which work to undermine the individual s will to resist and to compel him 6 to speak where he would not otherwise do so freely. 384 U.S. 436, 467 (1966). As a 7 prophylactic measure to address this concern, the Court formulated the now-familiar procedural 8 safeguards the Miranda warnings which were held to be necessary to secure the 9 privilege against self-incrimination. Colorado v. Spring, 479 U.S. 564, 572 (1987) (internal 10 quotation marks omitted). 11 It is well settled that Miranda requires all individuals who are under arrest, or otherwise in 12 police custody, to be informed prior to interrogation, inter alia, of their right to remain silent and 13 to have an attorney present during questioning. The Supreme Court s concern in Miranda was 14 the potentiality for compulsion inherent when a suspect is thrust into an unfamiliar 15 atmosphere and run through menacing police interrogation procedures. Miranda, 384 U.S. at 16 457. If a suspect is not provided with Miranda warnings, the prosecution is barred from using 17 statements obtained during the interrogation to establish its case in chief. United States v. 18 Newton, 369 F.3d 659, 668 (2d Cir. 2004) (citing Michigan v. Harvey, 494 U.S. 344, 350 19 (1990)). Miranda s warning requirements, however, apply only to custodial interrogation. Id. 20 at 669 (citation omitted). Whether an individual is in custody an issue we also review de 21 novo, id.; see also Thompson v. Keohane, 516 U.S. 99, 112 15 (1995) is determined by 22 ascertaining whether that individual is subjected to restraints comparable to those associated -15- 1 with a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 441 (1984). The ultimate question is 2 how a reasonable man in the suspect s position would have understood his situation. Id. at 3 442. Two discrete inquiries are essential to the determination: first, what were the 4 circumstances surrounding the interrogation; and second, given those circumstances, would a 5 reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. 6 Yarborough, 541 U.S. at 663 (quoting Thompson, 516 U.S. at 112). 7 The critical inquiry in this case is whether Georgison was in custody for purposes of 8 Miranda. In Estelle v. Smith, 451 U.S. 454 (1981), a case upon which Georgison relies, it is 9 clear that Smith, the prisoner, was in custody within the meaning of Miranda. He was 10 incarcerated when he made the challenged statements during a court-ordered psychiatric 11 examination. Id. at 457. The Supreme Court held that the statements were inadmissible at the 12 penalty phase of his trial as taken in violation of the Fifth Amendment. Id. at 461, 469. The 13 examination having been ordered by the court, Smith was not free to terminate the psychiatric 14 inquiry, and the custodial circumstances therefore were much different from those in the case at 15 bar. Id. at 465. 16 In Mathis, the Supreme Court held that a suspect questioned while incarcerated was in 17 custody for Miranda purposes. 391 U.S. at 5. There, an incarcerated individual was interviewed 18 by an Internal Revenue Service ( IRS ) agent about possible tax violations. The Court 19 concluded that the trial court erred in permitting the introduction of the individual s statements at 20 trial because no Miranda warnings were given. Id.. The Court did not further define in 21 custody or provide any details as to the circumstances under which the defendant was 22 questioned in that case. Nor did the Court hold that an incarcerated inmate is always in custody -16- 1 for purposes of Miranda. Indeed, Georgison acknowledges that Mathis does not detail the 2 particular circumstances of the defendant s interrogation in that case; e.g., whether the defendant 3 was handcuffed, compelled to enter the interrogation room with the investigators, and how many 4 people were present during the interview. 5 Following Mathis, we held in United States v. Morales, 834 F.2d 35 (2d Cir. 1987), that 6 the custody requirement is met when the questioning [is] conducted in custodial settings that 7 have inherently coercive pressures that tend to undermine the individual s will to resist and to 8 compel him to speak. 834 F.3d at 38. A court should consider whether a reasonable person 9 would have thought he was free to leave the police encounter at issue. If the answer is yes, the 10 Miranda inquiry is at an end; the challenged interrogation did not require advice of rights. 11 United States v. Newton, 369 F.3d 659, 672 (2d Cir. 2004) (emphasis added). In the concurring 12 opinion in Morales, Judge Oakes opined that any interrogation of a prisoner by law enforcement 13 for the purpose of gathering evidence is by definition a custodial interrogation: 14 15 16 17 18 19 20 21 22 23 24 The principles of Miranda support a rule that prisoners are per se in custody. Prisoners are obviously deprived of [their] freedom of action in a [] significant way. They are aware that they cannot escape persistent custodial interrogation. Prison is inherently coercive, and is a setting particularly susceptible to abuse. Questioning in prison involves neither brief detention nor public scrutiny, essential qualities of situations not requiring Miranda warnings. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 437 38 (1984) (Miranda warnings need not precede roadside questioning of motorists detained pursuant to routine traffic stops). 834 F.2d at 40 (internal citations omitted). Since Morales, however, the Supreme Court has cast serious doubt on the existence of a 25 per se or bright-line rule that would require Miranda warnings in the prison setting. In Illinois v. 26 Perkins, 496 U.S. 292 (1990), the Supreme Court upheld the admission of statements elicited, -17- 1 without the benefit of Miranda warnings, from an inmate by an undercover officer masquerading 2 as another inmate. Perkins, 496 U.S. at 295 96. The Court held that there was no danger of 3 coercion in the interrogation that occurred there, and, thus, it did not offend the Court s 4 concerns in Miranda. Id. at 298. The Court reject[ed] the argument that Miranda warnings are 5 required whenever a suspect is in custody in a technical sense and converses with someone who 6 happens to be a government agent. Id. at 297. The Court further noted that [t]he bare fact of 7 custody may not in every instance require a warning even when the suspect is aware that he is 8 speaking to an official, but we do not have occasion to explore that here. Id. at 299. 9 Subsequent to Perkins, and in his dissent from certiorari in Bradley v. Ohio, 497 U.S. 1011 10 (1990), Justice Marshall observed that it was an open[] question whether the bare fact of 11 custody would in every instance require a warning even when the suspect is aware that he is 12 speaking to an official. 497 U.S. at 1013 (Marshall, J., dissenting from cert. denial (quoting 13 Perkins, 496 U.S. at 299)). Justice Marshall also confirmed that the Court had yet to clarify 14 what constitutes custody for Miranda purposes in the prison setting. Id. at 1015. 15 Because the per se rule urged by Georgison is not clearly established federal law, the state 16 courts here did not unreasonably decline to apply it. See Carey v. Musladin, 549 U.S. 70, 77 17 (2006) ( Given the lack of holdings from this Court regarding the [issue in question] . . . it 18 cannot be said that the state court unreasonably applied clearly established Federal law. 19 (quoting 28 U.S.C. § 2254(d)(1))). Indeed, we have held, since Mathis and Morales, that the 20 mere fact of incarceration does not necessarily require that an individual be in the sort of custody 21 that warrants Miranda warnings before an interview. See Newton, 369 F.3d at 670 71 (citing 22 United States v. Willoughby, 860 F.2d 15, 23 (2d Cir.1988)); see also Rodriguez, 356 F.3d at -18- 1 258 (stating that the mere fact that Rodriguez was incarcerated at the time of the interview may 2 not be sufficient for a finding of custodial interrogation ). For example, in United States v. 3 Rodriguez, 356 F.3d 254 (2d Cir. 2004), where an agent of the Immigration and Naturalization 4 Service interviewed an inmate on unrelated charges, we held that to determine whether Miranda 5 warnings are required, a central inquiry is whether the statement at issue was made during 6 custodial interrogation. 356 F.3d at 258. 7 8 9 10 11 12 13 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). 356 F.3d at 258 (internal quotation marks and citation omitted). 14 In addition to rejecting an interpretation of Mathis that all prisoners are in custody for 15 purposes of Miranda, we conclude that the coercion inherent in custodial interrogation, which 16 was of concern in Miranda, simply was not present here. There was no measure of compulsion 17 above and beyond that inherent in custody itself, Rhode Island v. Innis, 446 U.S. 291, 300 18 (1980), and Georgison was not subjected to restraints comparable to those associated with a 19 formal arrest, Berkemer, 468 U.S. at 441. There was no coercive pressure that tended to 20 undermine Georgison s will or to compel him to speak. This is supported by the fact that 21 Georgison felt free to refuse to answer questions and to end the interview of his own volition. It 22 is also apparent that Georgison left the visiting room at a time and in a manner of his choosing, 23 demonstrating that he knew he was at liberty to terminate the interrogation and leave. See 24 Thompson, 516 U.S. at 112. At no time was Georgison restrained during questioning, which -19- 1 took place in a visitors room and not in a cell or interrogation room which might be capable of a 2 more profound custodial atmosphere.4 3 We conclude that Miranda warnings were not required in this case as there were no 4 restrictions on [Georgison s] freedom over and above ordinary prison confinement[,] . . . 5 [Georgison] agreed to be interviewed, and the interview was conducted in the visiting room. 6 People v. Georgison, 750 N.Y.S.2d 18, 19 (App. Div. 2002) (citing People v. Alls, 608 N.Y.S.2d 7 139 (1993)). Accordingly, the state courts holdings that the admission in evidence of 8 Georgison s statements was constitutional was not contrary to, or an unreasonable application of, 9 clearly established federal law as interpreted by the Supreme Court. 10 III. Conclusion 11 The judgment of the District Court denying Georgison s petition for a writ of habeas 12 corpus is affirmed, as the state courts did not unreasonably apply clearly established federal law 13 as determined by the United States Supreme Court. 4 An individual is not always in custody even if (s)he is not free to leave the confrontation with police, a situation not present in this case. For example, a motorist who has been stopped by the police for a traffic infraction is clearly not free to leave the confrontation, yet Miranda rights are not implicated. See Berkemer, 468 U.S. at 440. Also, despite the fact that any confrontation with police officers will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime, even a police interrogation at the stationhouse will not give rise to a need for Miranda warnings if the individual is not under arrest or otherwise deprived of his liberty to leave. Mathiason, 429 U.S. at 495. [T]he circumstances of each case . . . influence a determination of whether a suspect is in custody for purposes of receiving of [sic] Miranda protection. California v. Beheler, 463 U.S. 1121, 1125 (1983). -20-
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