588 F.3d 145 (2nd Cir. 2009), 05-5885-pr, Georgison v. Donelli

Docket Nº:05-5885-pr.
Citation:588 F.3d 145
Opinion Judge:MINER, Circuit Judge:
Party Name:Steven GEORGISON, Petitioner-Appellant, v. John J. DONELLI, Bare Hill Correctional Facility, Respondent-Appellee.
Attorney:Flora Edwards, New York, N.Y., for Petitioner. Andrew S. Holland, Assistant District Attorney, Bronx County (Joseph N. Ferdenzi, Assistant District Attorney, on the brief; Robert T. Johnson, District Attorney, Bronx County), Bronx, N.Y., for Respondent-Appellee.
Judge Panel:Before: MINER, WESLEY, Circuit Judges, and STANCEU, Judge.[*]
Case Date:December 07, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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588 F.3d 145 (2nd Cir. 2009)

Steven GEORGISON, Petitioner-Appellant,


John J. DONELLI, Bare Hill Correctional Facility, Respondent-Appellee.

No. 05-5885-pr.

United States Court of Appeals, Second Circuit.

December 7, 2009

Argued: May 15, 2009.

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[Copyrighted Material Omitted]

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Flora Edwards, New York, N.Y., for Petitioner.

Andrew S. Holland, Assistant District Attorney, Bronx County (Joseph N. Ferdenzi, Assistant District Attorney, on the brief; Robert T. Johnson, District Attorney, Bronx County), Bronx, N.Y., for Respondent-Appellee.

Before: MINER, WESLEY, Circuit Judges, and STANCEU, Judge.[*]

MINER, Circuit Judge:

Petitioner-appellant Steven Georgison (" Georgison") appeals from a June 9, 2005 judgment entered in the United States District Court for the Southern District of New York (Chin, J.) denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Georgison v. Donelli, No. 04 Civ. 1444(DC), 2005 WL 1384015, *10 (S.D.N.Y. June 9, 2005). Georgison was convicted after a jury trial conducted in the New York State Supreme Court, Bronx County (Bamberger, J., suppression hearing; Silverman, J., trial and sentencing) on one count of assault in the first degree, in violation of New York Penal Law § 120.10[4]. Georgison, 2005 WL 1384015, at *3. Following unsuccessful appeals in state court, People v. Georgison, 299 A.D.2d 176, 750 N.Y.S.2d 18 (2002), leave denied, 99 N.Y.2d 614, 757 N.Y.S.2d 825, 787 N.E.2d 1171 (2003), and the denial of his habeas petition in the District Court, we granted a certificate of appealability. The certificate was granted to allow review of Georgison's claim that his Fifth Amendment rights were violated by the admission in evidence of an inculpatory statement given to police investigators without affording him the warnings prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The statements were given during Georgison's incarceration at the Riverview Correctional Facility on an unrelated conviction. For the reasons that follow, we hold that the state court's application of clearly established

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federal law, as determined by the United States Supreme Court, was not objectively unreasonable in this case, and, accordingly, that the application for a writ of habeas corpus was properly denied.


A. The Assault of Alexander Fernandez and Investigation of Georgison

In June of 1993, Alexander Fernandez was employed as a truck driver for Chambers Paper Fibers (" Chambers"), a private sanitation company. One afternoon in the early part of that month, while Fernandez was picking up refuse, he saw Georgison standing no more than three feet away from him. Fernandez kept an eye on Georgison for about two minutes and resumed his duties without further incident. Georgison, 2005 WL 1384015, at *1.

Later that month, on the morning of June 22, 1993, Fernandez drove his truck to the premises of Charles Green Corporation (" Charles Green"), a company in the Bronx, New York, for which Chambers provided waste removal services. Id. While Fernandez loaded waste from containers into his truck, another private sanitation truck, with " Mongelli Carting Company" (" Mongelli Carting") written on the side of the vehicle, approached. Id. Mongelli Carting had been the previous vendor for Charles Green and had been involved in a dispute with Charles Green. Id. Fernandez saw Georgison sitting in the passenger's seat of the approaching truck. Id. Fernandez, who was about twenty to twenty-five feet away from the Mongelli Carting truck, observed Georgison for about twenty seconds as the driver of the truck drove the vehicle into the loading bay on the Charles Green premises. Once Georgison exited the vehicle, he engaged in a brief argument with Fernandez regarding a blockade that Mongelli purportedly was conducting against other garbage carting companies.

After arguing and exchanging " hostile words," Fernandez turned around to continue his work. Id. A few seconds later, Fernandez was struck from behind several times and knocked to the ground. Id. He was struck in the head at least once. Id. Fernandez claimed that during the attack, and before losing consciousness, he looked up and saw Georgison holding a black object " like a pipe." Id. (quotation marks and citation omitted). According to Georgison, two witnesses were present when Fernandez was attacked: one of Georgison's co-workers, Thomas Oddo (" Oddo"), and a Charles Green employee, Thomas Toppin. Id.

While Fernandez was in the hospital following the attack, he was interviewed by the police. Id. During a conversation with a police detective, Fernandez described his attacker and mentioned that he had seen the attacker on an earlier date. Id. Although Fernandez suffered from some memory loss as a result of the incident, he later stated at Georgison's trial that he would never forget the face of the man who had assaulted him. Id.

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. Id. Fernandez was shown six photographic arrays of six photographs each that were created using surveillance photos taken during a blockade at the location where the assault occurred. Id. The pictures depicted men from the shoulders up, and about nine or ten of the men had features similar to Georgison's. Id. When Fernandez came to Georgison's photograph, he identified Georgison without hesitation as the person who had assaulted

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him.1 Id. However, Georgison was not arrested at that time.

On December 14, 1993, Fernandez filed an amended complaint in his civil lawsuit for assault against Mongelli Carting. Georgison, 2005 WL 1384015, at *2. The original lawsuit was filed on August 30, 1993. The amended complaint identified Georgison and Oddo as the individuals who had assaulted him on June 22, 1993. Id.

Approximately three years later, on February 27, 1996, Detectives Patrick McLoughlin and John Prindle of the O.C.I.D., as well as New York County Assistant District Attorney (" ADA") Jonathan Davis visited the Riverview Correctional Facility (" Riverview") to talk to Georgison about the assault on Fernandez.2 At that time, Georgison was serving a sentence for an unrelated robbery conviction.

Sergeant Richard Peacock, a correctional sergeant at the facility, received a call from his watch commander instructing him to ask Georgison if he was willing to speak with the detectives. There were no rules or regulations in effect at the facility requiring an inmate to speak with visitors such as detectives or assistant district attorneys. Sergeant Peacock asked Georgison if he was willing to talk to the detectives. Sergeant Peacock did not threaten Georgison or make any promises to him. Georgison agreed to speak with the detectives. After the detectives and ADA Davis were escorted to the visitors' room, Georgison was brought there by Sergeant Peacock. The visitors' room contained tables, chairs, and vending machines. Georgison was not handcuffed. Id. at *2. Sergeant Peacock opened the door to the room, and Georgison entered alone while the sergeant waited outside. ADA Davis also waited outside while the detectives began their interview of Georgison. The detectives were unarmed during their entire time in the visitors' room.

During the interview, the detectives stated that Georgison had assaulted someone in June of 1993. Id. In response, Georgison said: " I didn't pipe no one." The detectives had not mentioned anything about a pipe being used in the assault. Id. Georgison did admit, however, that his route on the day of the assault included the premises where the assault had taken place. The detectives then asked ADA Davis to enter the room, and the ADA reiterated to Georgison that he and the detectives were there to investigate the assault. The detectives then asked Georgison if he would like to know " what would happen to the assault charge" if he cooperated with the investigation and told them " complete details of what happened." Georgison responded, " 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 only

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job." The interview ended when Georgison stated " I can't talk no more, I got to leave," at which time Georgison walked out of the room. Id. After Georgison left the room and told the sergeant that he was done, the sergeant walked him back to his housing unit in the facility. Georgison, 2005 WL 1384015, at *2.

Georgison never was given Miranda warnings prior to, during, or after the interview. Id. In addition, both the detectives and ADA Davis knew that Georgison was incarcerated for a robbery conviction, and at no point during their questioning of Georgison did they discuss that crime. Detective McLoughlin neither knew nor tried to find out whether Georgison was represented by counsel. Georgison also never asked to speak to an attorney, and he did not ask to make any phone calls. Georgison, 2005 WL 1384015, at *2.

On November 25, 1996, a New York County ADA and a police detective interviewed Fernandez and showed him six photographs. It is not clear whether these photographs were included in the array of photographs shown to Fernandez in 1993. In any event, Fernandez again identified Georgison as the assailant. Thereafter, Fernandez identified a photograph of Georgison during the criminal trial of Louis and Paul Mongelli, the owners of Mongelli Carting. Id. On February 18, 1998, Fernandez also identified Georgison during a lineup at the Criminal Court in Bronx County, New...

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