The Honor able Timothy C. St ance u, J udg e of the United States Court of International * Trade , sitti ngby

desig nation. 05- 5885

- pr G eor gis on v . D one ll i 1 U N IT E D S T A T E S C O U R T O F A P P E A LS 2 F O R T H E S E C O N D C IR C U IT 3 August Term 2008 4 (Argued: May 15, 2009 Dec ided: Dec ember 7, 2009) 5 Docke t No. 05-5885-pr 6

______________________________________________________________________________ 7 STEVEN GEORGI SON, 8 Pe tit ion e r- Ap pe lla nt, 9 10 - v. - 11 J OHN J. DONEL L I , BA RE HI L LCORREC TI ONAL FACI L I TY, 12 Respondent-Appe llee. 13

______________________________________________________________________________ 14 Be fore : MI

NER, WES L EY, Circuit J udg es, and STANCEU, Judge

. * 15 Appea l from a judg ment enter ed June 9, 2005, in the United States District Court for the 16 Southern District of Ne w York ( Chin, J .) deny ing pe titioner-appe llant’s petition for a wr it of 17 habea s corpus c halleng ing his Ne w York State c onviction for assa ult in the first deg ree on the 18 g round that his rig hts under the F ifth Amendment of the United States Consti tution were violate d 19 by

the admission in evidence of incriminatingstatements made by the petitioner to police 20 detec tives who interviewe d him while he was inc arc erated on an unr elated c onviction and 21 without affor ding him the wa rning s presc ribed by

Miranda v. Arizona, 384 U.S. 436 (1966). 22 Affir

med.

23 SUSAN M. DAMPL O, The L eg al Aid Society , Criminal 24 Appea ls Bure au, Ar dsley , N.Y., for Petitioner-Appellant

2 5 S T A N L E Y R

. K

A P LA N , A s s i s t an tD i s tr i c tA t t o r n e y, 26 Br onx County (Jos eph N. F erde nzi, Assi stant District-2- 1 Attorney , on the brief ; Robert T. J ohnson, District 2 Attor ne y , B ro nx County

), B ro nx, N .Y ., fo r R e sp on de nt3 Appellee 4 MI

NER, Circuit J udg e: 5 Petitioner-appe llant Steven Geor g ison (“Ge org ison”) appe als from a J une 9, 2005 6 judgme nt entere d in the United States District Court for the Southern D istrict of New York 7 (Chin, J .) deny

ing his pe tition for a writ of ha beas c orpus brought pursuant to 28 U.S.C. § 2254. 8 Geor g ison v. Donelli, No. 04 Civ. 1444 (DC), 2005 WL1384015, *10 (S.D.N.Y. June 9, 2005). 9 Ge or g iso n w a s c onvic te d a ft e r a jur y tr ia l c on du c te d in

the Ne w Y or

k St ate Sup re me Court , 10 Br onx County

(B amber g er, J., suppression hear ing; Silverman, J., trial and sentenc ing) on one 11 count of a ssault in the first deg ree , in violation of New Yor k Penal L aw § 120.10[4]. I d. at *3. 12 Followingunsucce ssful appea ls in state court, People v. Ge org ison, 750 N.Y.S.2d 18 (App. Div. 13 2002), leave denie d, 99 N.Y.2d 614 (2003) , and the de nial of his habea s petition in t he District 14 Court, we g rante d a ce rtificate of appe alability . The c ertificate was grante d to allow revie w of 15 Geor g ison’s claim that his Fifth Amendme nt rig hts were violated by the admission in evidence of 1 6 an i n cu l p at o ry

s t at em en tgi v en t o p o l i ce i n v es t i gat o rs wi th o u taf fo rd i n g h i mth e w arn i n gs 17 presc ribed by

Miranda v. Arizona, 384 U.S. 436 (1966). The statements wer e g iven during 18 Geor g ison’s incarc eration at the Riverview Corr ectional F acility on an unre lated convic tion. For 19 the re asons that follow, we hold that the state cour t’s application of c lear ly

established fe dera l 20 law, a s d e te rm ine d b y the Un ite d St ate s Su

pr e me Court , w a s n ot o bje c tiv e ly unre a so na

ble in t his 21 case , and, ac cording ly , that the application for a wr it of habea s corpus wa s proper ly denied. 22 I. BACK GR OUND 23 A. The Assault of Alexander Fernande z and Inve

stigati on of Georgison-3- 1 In J une of 1993, A lexander F erna ndez was employ ed as a

truck drive r for

Chambers Pape r 2 Fiber s (“Chambe rs”) , a private sanitation company . One a fternoon in the e arly part of that 3 month, while Fer

nandez was pic king up r efuse , he sawGeor g ison standing no more than three 4 fe e t awa

y fr om h im. F e rn and e z ke pt a n e y e on Ge or g iso n f

or a bo ut t wo min ute s a nd re sume d h is 5 duties without further incide nt. Georg ison, 2005 W L1384015, at *1. 6 L ater

that month, on the morning of J une 22, 1993, F erna

ndez drove his truck to the 7 premises of Cha

rles Gr een Corpor ation (“Char les Gre en”) , a compa ny in the Br onx , New Y ork, 8 for whic h Chambers provide d waste r emoval ser vices. I d. Whil e F erna

ndez loaded wa ste from 9 c o n t a i n e r s i n t o h i s tr u c k , an o th e r

p r i v at e s an i t at i o ntr

u c k , w i th“ M o n g e l l i C art i n gC o mp an y” 10 (“Mong elli Carting” ) written on the side of the ve hicle, appr oache d. I d. Mong elli Carting ha d 11 been the previous vendor for Char les Gre en and ha d been involved in a dispute with Charles 12 Gre en. I d. Fe rnande z saw Georg ison sitt ing in the pa sseng er’ s seat of the approa chingtruck. I d. 13 Fe rnande z, who was about twenty to twenty -five f

eet a way from the Mong elli Carting tr uck, 14 observe d Geor g ison for about twe nty seconds a s the driver

of the truc k drove the vehicle into the 15 loadingbay

on the Charles G ree n premises. Onc e Ge org ison ex ited the vehicle , he eng ag ed in a 16 brief a

rgument with Fer

nandez re g ardinga blocka de that Mong elli purportedly was c onducting 17 a g a ins t ot

he r g arb a g e c art ingc omp anie s. 18 Af

te r a rguin gand

e xch ang ing“ ho sti le wo rd s, ” F e rn and e z tur ne d a ro un d to c ontin

ue his 19 wo rk . I d. A f

e w s e c on ds late r, F e rn and e z wa s st ru c k f ro m be hin d s e ve ra l ti me s a nd kn oc ke d to 20 the g round. I d. He wa s struck in the hea d at least onc e. I d. Fe rnande z claimed that duringthe 21 attack, a

nd befor e losingconsciousness, he looked up and sa w Geor g ison holding a bla ck objec t 22 “like a pipe .” I d. (quotation marks a nd citation omitted). Acc ordingto Georg ison, two witnessesBy the time of Ge org ison’s trial, these photog raphic arr ay s had bee n lost. Georg ison, 1 2005 WL1384015, at *1. -4- 1 wer e pre sent when F erna ndez was attac ked: one of Geor g ison’s co-wor

kers, Thoma s Oddo 2 (“O ddo”), a

nd a Charle s Gree n employ ee, T homas Toppin. I d. 3 Whil e F erna ndez was in the hospital following the attac k, he wa s interviewe d by the 4 police. I d. Duringa conve rsation with a police de tective, F erna ndez describe d his attacke r and 5 mentioned that he ha d seen the attacke r on an e arlier date. I d. Although F erna ndez suffer ed 6 from some memory loss as a re sult of the incident, he late r stated at Georg ison’s trial that he 7 would never

forg et the fa ce of

the man who ha d assaulted him. I d. 8 On September 16, 1993, Fe rnande z was visited by Detec tive J oseph L entini from the 9 Org anized Crime Investig ation Division (the “O.C.I .D.”) of the Ne w York City Police 10 Depa

rtment and a

n investigator from the N ew Yor k County District Attorney ’s Off

ice. I d. 11 Fe rnande z was shown six photogr aphic a rra y s of six photogr aphs ea ch that we re c reated using 12 surveillance photos taken duringa blocka de at the loc ation wher e the a ssault occur red. I d. The 13 pictures de picted men f rom the shoulders up, a

nd about nine or te n of the men ha d features 14 simil ar to Ge org ison’s. I d. When Fer nandez came to Geor g ison’s photogr aph, he ide ntified 15 Geor g ison without hesitation as the person who ha d assaulted him. I d. Howeve r, Ge org ison 1 16 was not ar

rested a t that time. 17 On Dec ember 14, 1993, Fe rnande z filed an amende d complaint in his civil l awsuit for 18 assault ag ainst Monge lli C arting . Geor g ison, 2005 W L1384015, at *2. The or igina l lawsuit was 19 filed on August 30, 1993. The amende d complaint identified Ge org ison and Oddo as the 20 individuals who had assaulted him on June 22, 1993. I d.Th e Di str ic t Co ur t e xpla ine d in

its tho ro ugh M e mor and

um D e c isi on

that, b e g inn ingin 2 the ea rly 1990s, the City

of Ne w York ha d begun an investig ation into the waste c artingindustry

. In Jun e of 19 95 , in dic tme nts we re fi le d in Ne w Y or k Co unty a g a ins t se ve ra l in div idu a ls, inc lud ingL ou is M on g e lli and Pa ul M on g e lli , th e owne rs of Mo ng e lli Cart ing . T he Mo ng e lli s wer e cha rg ed with seve ral ser ious crimes, includingthe assault of F erna ndez. Georg ison was not inc lud e d in

any of the se c ha rg e s o r i nd ic tme nts . ANe w Y or k Co unty AD A t e sti fi e d in

state c ourt that th e “ Manh atta

n D istri c t A tto rn e y ’s Of

fi c e did no t ha ve jur isd ic tio n to pr e se nt t he c a se ag ainst Georg ison. [ And t]he Bronx [ County ] Dist rict Attorney ’s Off ice c ould not have pr e se nte d th e c a se to a

[g ]ra nd [j]ur y be c a us e the y we re un awa

re of the e vid e nc e [ag a ins t Geor g ison] beca

use it was prote cted f

rom disclosure” due to the ong oing inve stigation at that time into the waste ca

rtingindustry . Geor g ison, 2005 W L1384015, at *2. -5- 1 Approxim ately three y ear s later, on F ebrua ry 27, 1996, Detec tives Patrick McL oug hlin and 2 J ohn Prindle of the O.C.I .D., as we ll as New Y ork County Assistant District Attorney (“A DA”) 3 J onathan Da

vis visit ed the Rivervie w Corre ctional Fa cility (“River view”) to talk to Georg ison 4 about the assa

ult on Fer nandez. At that time, Georg ison was servinga sente nce f or an unr elated 2 5 robber

y conviction. 6 Se rg e ant R ic ha rd Pe a c oc k, a

c or re c tio na l se rg e ant at th e fa c ili ty , r e c e ive d a c a ll f ro m hi s 7 watch c ommander instruc ting him to ask Ge org ison if he was w illing to speak w ith the 8 de te c tiv e s. Th e re we re no ru le s o r r e gulatio ns in e ff e c t at th e fa c ili ty

re qu ir ingan inmate to 9 speak w ith visi tors such as de tectives or a ssistant dist rict attorne y s. Serg eant Pea cock a sked 10 Geor g ison if he was w illing to talk to the detec tives. Serg eant Pea cock did not thre aten 11 Geor g ison or make a ny promises to him. Georg ison ag ree d to speak with the de tectives. Af ter 12 the detec tives and ADADavis we re e scorted to the visitors’ r oom, Georg ison was brought there 13 by

Serg eant Pea cock. T he visitors’ room conta ined tables, c hairs, and ve nding ma chines. 14 Geor g ison was not handcuf fed. I d. at *2. Serg eant Pea cock ope ned the door to the room, and 15 Geor g ison entere d alone while the serg eant wa ited outside. ADA Da vis also waited outside 16 while the dete ctives beg an their inter view of G eorg ison. The detec tives were unarme d during-6- 1 their entire time in the visit ors’ room. 2 Duringthe interview , the detec tives stated that Geor g ison had assaulted someone in J une 3 of 1993. I d. In response , Geor g ison said: “Ididn’t pipe no one.” The de tectives ha d not 4 mentioned any

thing a bout a pipe beingused in the assa ult. I d. Geor g ison did admit, however, 5 that his route on the day of the a ssault included the pre mises where the assault had taken plac e. 6 The de tectives then a sked ADADavis to enter the room, and the ADA r eiterated to Geor g ison 7 that he and the detec tives were there to investigate the assa ult. The detec tives then asked 8 Geor g ison if he would like to know “wha t would happen to the a ssault char g e” if he coope rate d 9 with the investigation and told them “complete de tails of what happe ned.” G eorg ison responded, 10 “I

wasn’t g oing to be a rat, Iam not g oing to r at on a pe rson who g ave me the best job Ihad, the 11 only

job.” The inter

view ende d when Ge org ison stated “I can’ t talk no more, I

g ot to leave,” at 12 which time Geor g ison walked out of the r oom. I d. After Geor g ison left the room and told the 13 serg eant that he was done , the serg eant wa lked him back to his housing unit in the fa cility

. 14 Geor g ison, 2005 W L1384015, at *2. 15 Geor g ison never w as g iven Miranda war nings pr ior to, during , or af ter the inter

view. I d. 16 In addition, both the detectives a nd ADA Da

vis knew that Ge org ison was incar cer ated f or a 17 robber

y conviction, and at no point during their que stioning of Ge org ison did they discuss that 18 crime. D etec tive McL oug hlin neither knewnor tried to find out whe ther Ge org ison was 19 re pr e se nte d b y

c ouns e l. G e or g iso n a lso ne ve r a sk e d to sp e ak to an atto rn e y , a nd he did no t a sk to 20 make a

ny phone ca lls. Georg ison, 2005 W L1384015, at *2. 21 On Novembe r 25, 1996, a N ew Yor k County ADA a nd a police de tective inter viewed 22 Fe rnande z and showed him six photogr aphs. It is not clear whe ther these photogr aphs we reWit h reg ard to Sing er issues r aised by Geor g ison, prosecutors c alled ADAPatrick 3 Dug an, who testified that the fifty -six month delay in the indictment of petitioner wa s due to the ong oing inve stigation of the waste c artingindustry . Dug an testified that the unde rcove r aspe ct of the investig ation had begun in May 1992 and lasted f

or two and a

half year s. Protective orde rs

(continued...) -7- 1 inc lud e d in

the arr ay of ph oto g ra ph s sh own to F e rn and e z in 1 99 3. In a ny e ve nt, F e rn and e z ag a in 2 identified Ge org ison as the assailant. The rea fter, F erna ndez identified a photog raph of 3 Geor g ison during the criminal trial of L ouis and Paul Monge lli, the owners of Mong elli Carting. 4 I d. On Fe bruar

y 18, 1998, Fe rnande z also identified Georg ison during a lineup at the Criminal 5 Court in Bronx Count y , New Y ork. I d. 6 B

. State Court Proceedings 7 1

. The Suppression Hearing 8 On April 6, 1998, Ge org ison was indicted in B ronx C ounty Supreme Court of the State of 9 New Y ork on two counts of a ssault in the first deg ree , in violation of New Yor k Penal L aw § 10 120.10[4] ; coer cion in the first degree , in violation of New Yor k Penal L aw § 135.65; and 11 criminal possession of a w eapon in the third de g ree , in violation of New Yor k Penal L aw § 12 265.02. I d. at *3. At a c ombined Singer , Huntley , and Wade he aringheld in the state trial c ourt 13 from Jul y

21 to 23, 1999, five witnesses testified f or the prose cution. I d. See g ener ally People v. 14 Singer , 44 N.Y.2d 241, 255 (1978) (providinga def endant with a pr e-tria l hear ing to de termine 15 whether

a pre -indictment delay

was re asonable ); People v. Huntley , 15 N.Y.2d 72, 78 (1965) 16 (providinga cr iminal defenda nt with a pre- trial hea

ringto determine whether statements ar e 17 admissible); United States v. Wade, 388 U.S. 218, 242 (1967) ( providinga def endant with a pr e18 trial hea

ringto determine whether a pre trial identification of a defe ndant has a

n independe nt 19 basis of re liability and is there fore admissible duringtrial). An additional session was he ld on 3(...continued) 3 we re iss ue d o n Se pte mbe r 2 8, 19 95 , M arc h 1 5, 19 96 , D e c e mbe r 1 3, 19 96 , a nd Ap ri l 28 , 1 99 7, to protec t the identity

of witnesses. Dug an also testified that the order s were nece ssary beca use of the history

of violence in the waste industry . Dug an explained that information re g ardingthe assault was not turne d over to the B ronx C ounty District Attorney

until shortly

afte r June 30, 1997. Although the first protec tive order was not issued until September 28, 1995, Dug an stated that Geor g ison was not indicted prior to that date beca use the unde rcove r oper ation was un de rw ay and dis c los ur e of

inf or matio n r e late d to the a ssa ult c ou ld h ave je op ard ize d th e wa ste car ting investig ation and put under cover office rs and c ooperating witnesse s at risk. Geor g ison, 2005 WL1384015, at *3. -8- 1 October

14, 1999, duringwhich F erna ndez testified. Geor g ison, 2005 W L1384015, at *3. 2 In a wr itten decision dated N ovember 4, 1999, the state c ourt (B amber g er, J.) denied 3 Geor g ison’s motion t o dismiss the indictment for e x cessive pr e-indictment de lay and also de nied 4 his moti ons to suppress identification testimony and stateme nts made to the police at the 5 F e b r

u ar y 2 7 , 1 9 9 6 inte r

v ie wat t h e Ri v e r v ie wCo r r e c ti o n a l F a c il it

y . G e o r g is o n , 2 0 0 5 WL 6 1384015, at *3; see a lso People v. Georg ison, 750 N.Y.S.2d 18, 19 (App. Div. 2002). Ge org ison 7 ha d s ou g ht t o s up pr e ss t he state me nts that he ha d ma de duri ngthe int e rv ie w at Riv e rv ie w; to w it, 8 that he “didn’ t pipe no one”; that his ca rtingroute at the time of the assa ult would have brought 9 him to the location of the assa ult; and that he would not be a “ rat” ag ainst his employ er. The 10 state cour

t relied on the N ew Yor

k Court of Appea ls decision, People v. Alls, 83 N.Y.2d 94 11 (1993), c ert. de nied, 511 U.S. 1090 (1994), whic h held that Miranda war nings only

need to be 12 g iven to an inmate que stioned in a corr ectional f acility when the “ circ umstances of the detention 13 and

int e rr og atio n . . . e nta il a dd e d c on str a int that w ou ld l e a d a

pr iso n inmate re a so na

bly to 14 believe that there ha s been a restric tion on that person’s fr eedom ove r and a bove that of or dinary 15 confine ment.” 83 N.Y.2d a t 100. 16 2. Trial and Conviction-9- 1 In May

2000, a trial wa s held in the Supreme Court of the State of Ne w York, B ronx 2 County

(Silverman, J.). Georg ison, 2005 W L1384015, at *3. Geor g ison claimed at trial that he 3 was una

ble to locate the two people whom he contende d wer e pre sent duringthe assault on 4 Fe rnande z — Thomas Oddo and Thomas Toppin. I d. At trial, the state’ s evidenc e pre sented 5 included a na

rration of the bac kg round fa cts detailed a bove. Evidence at trial also included 6 testimony

reg ardingFe rnande z’s injuries, which included a la cer ation on the bac k rig ht side of 7 his head, a

broken se cond fing er on his lef t hand, three or four

linear w elt marks on his rig ht back 8 in the shoulder ar ea, a nd another

linear w elt on his lower ante rior belly . Fe rnande z also suffere d 9 a contusion on his brain. 10 On May

23, 2000, a jury

convicted G eorg ison of assault in the first degree , in violation of 11 N.Y. Penal L aw § 120.10[4]. On November 13, 2000, Ge org ison was sentenc ed to twelve year s 1 2 to li f

e . Ju d g me n t w a s e n te r e d in s tate c o urt, an d

G e o r g is o na

p p e a le d

. G e o r g is o n , 2 0 0 5 WL 13 1384015, at *3. 14 3. Appellate Proce edings 15 On

dir e c t a pp e a l to the Ne w Y or

k Su pr e me Court , App e llate Di vis ion , F ir st D e pa rtme nt, 16 Ge or g iso n c la ime d th at ( 1) pr e -i nd ic tme nt d e lay of fo ur y e ars and

e ig ht m onths vio late d h is 17 statutory

and constitutional speedy trial rig hts, (2) the a dmission of his s tatements made in prison 18 vio late d h is F if

th a nd Sixth A me ndme nt r ig hts a g a ins t se lf -i nc ri min atio n a

nd to c ouns e l, 19 respe ctively , (3) the pr e-tria l identification proce dures we re unduly sug g estive and out-of

-cour t 20 identification testimony was impermissibly

bolstered, de privinghim of due proc ess, (4) the 21 re mov a l of

Ge or g iso n’ s d a

ug hte r f ro m th e c ourt

ro om d e pr ive d h im o f h is r ig ht t o a pu bli c tr ia l, 22 (5 ) t

he pr os e c uto r m a de un sw or n s tate me nts that pr e

jud ic e d h im a

nd de pr ive d h im o f a

fa ir tr ia l,-10- 1 and (6) the prosec utor’s summation unfairly prejudice d him. Georg ison, 2005 W L1384015, at 2 *3. 3 In a

de c isi on date d N ov e mbe r 1 2, 20 02 , th e Ap pe llate Di vis ion , F ir st D e pa rtme nt, 4 unanimously

aff irmed Ge org ison’s conviction. People v. Ge org ison, 750 N.Y.S.2d 18 (App. 5 Di v. 20 02 ). Withre sp e c t to the a dmi ssi on of Ge or g iso n’ s st ate me nts , th e c ou rt he ld: 6 [Georg ison’s] m otion to suppress statements was prope rly denied. The 7 statements made by [Georg ison] to the police while inca rce rate d on an unre lated 8 matter we re voluntar y and admissible. [Georg ison’s] i ncar cer ation did not require 9 Miranda w arning s, since the he aringevidenc e esta blished that there w ere no 10 restric tions on [ Geor g ison’s] freedom over and above ordinary

prison 11 confine ment. [Georg ison] ag ree d to be interview ed, and the fac t that prison 12 officia ls moved him to t he same visiti ngroom wher e inmates routinely rec eive 13 vis ito rs did no t c on sti tut e the ty

pe of re str a int re qu ir ingMir and a

wa rn ing s. 14 Geor g ison, 750 N.Y.S.2d at 19. 15 On

F e br ua ry 21 , 2 00 3, the Ne w Y or

k St ate Court

of Ap pe a ls d e nie d G e or g iso n le ave to 16 appea l the decision of the A ppellate Division. People v. Ge org ison, 99 N.Y.2d 614 (2003). 17 C. Fede ral Habeas Proce edings 18 In paper s filed on Fe bruar y 20, 2004, in the United States District Court for the Southern 19 District of Ne w York, G eorg ison sought a writ of habe as cor pus claimingthat (1) his convic tion 20 was wr ong fully

obtained by

the use of inc riminating state ments g iven in the abse nce of Miranda 21 war

nings, a nd (2) a delay of fifty -six months in obt ainingthe indictment with which he wa s 22 char g ed, duringwhich time he c laimed two witnesses disappe are d and evide nce w as lost, denied 23 him

du e pr oc e ss. Ge or g iso n, 20 05 WL13 84 01 5, at *4 . Sp e c if ic a lly , w ithre g ard

to t he F if th 24 Amendment/Miranda claim, Geor g ison argued that, pursua nt to Mathis v. United St ates, 391 25 U. S. 1 (1 96 8) , a

nd Es te lle v. Smith, 45 1 U .S. 45 4 ( 19 81 ), the state me nts e lic ite d f ro m hi m w hil e-11- 1 he wa s incarc erated in state prison on anothe r cha rg e should not have be en admitted bec ause he 2 was not g iven Miranda war nings while he wa s “in custody” by virtue of his inca

rce ration. 3 In a

de c isi on date d Jun e 9, 20 05 , th e Di str ic t Co ur t de nie d G e or g iso n’ s p e tit ion fo r a wr it 4 of habe as cor

pus. Wi th reg ard to the state ments that Georg ison had made to off icer s in the 5 visitors’ room, the court de termined, re lying upon, inter alia, United States v. Mora les, 834 F.2d 6 35 (2d Cir. 1987), United States v. Ne wton, 369 F.3d 659 ( 2d Cir. 2004), L eviston v. Blac k, 843 7 F.2d 302 ( 8th Cir. 1988), and United States v. Scully , 415 F.2d 680 ( 2d Cir. 1969), that 8 Geor g ison was not “in custody” for purposes of Mira

nda bec ause he arr ived at the inter view 9 voluntarily , was not re strained dur ing the interview, w as questioned in the visitors’ room at the 10 prison, and possessed a nd exercised his rig hts to refuse to a nswer que stions and to leave the 11 interview when he w ished. Geor g ison, 2005 W L1384015, at *5. The c ourt furthe r held that 12 e ve n if

the a dmi ssi on

of the state me nts we re e rr on e ou s, it w a s h arm le ss “ be c a us e the re wa s a 1 3 s ign if

ic an t a mo un t o f e v id e n c e o th e r

th an[G e o r g is o n ’ s ] s tate me n t t o c o n v ic t [ G e o r g is o n ], 14 including f

our sepa rate identifications by

the victim.” I d. at *6. 15 In its Memorandum Dec ision, the District Court declined to issue a c ertificate of 16 appea lability

to Georg ison beca

use he “ has not made a

substantial showing of

the denial of

a 17 constitutional right.” G eorg ison, 2005 W L1384015, at *10. 18 Ge or g iso n th e n f ile d a mot ion wi th t his Court se e kin ga c e rt if ic ate of a pp e a la bil ity and in 19 forma pa

uperis status. B y

order filed F ebrua

ry 20, 2008, this Court gra

nted Geor g ison’s motion 20 “ wi th r e g ard

to h is c la im that th e a dmi ssi on at tr ia l of his inc ulp ator

y state me nt, g ive n to 21 inv e sti g ator s d

ur ingan inte rv ie w c on du c te d whil e he wa s in c arc e ra te d .

. . on unre late d c ha

rg e s, 22 was unc onstitut ional under Mira nda v. Ar izona, 384 U.S. 436 (1966).”-12- 1 II. AN AL YSI S 2 A

. Standard of Review Unde r the Antiterrorism and Effective De ath Penalty Act of 3 1996 4 This Court reviews the district c ourt’s denia l of a pe tition for a writ of ha beas c orpus de 5 novo. L oliscio v. Goord, 263 F.3d 178, 184 ( 2d Cir. 2001). Our r eview, how ever , is constrained 6 by the Antit e rr or ism

and Ef fe c tiv e De ath P e na lty

Ac t of 19 96 , Pu b. L . N o. 10 4- 13 2, 11 0 St at. 7 12 14 (c od if

ie d at 28 U. S.C. § 2 25 4) (“ AE DPA ” ). Un de r A ED PA, we may no t c on sid e r c la ims 8 that have not be en exhausted by fair pr esentation to the state courts. See 28 U .S.C.2254(b)(1); 9 Acosta v. Artuz, 575 F.3d 177, 185 (2d Cir. 2009) (c iting B aldwin v. Reese , 541 U.S. 27, 29 10 (2 00 4) ). A f

e de ra l c ourt

mus t c on sid e r whe the r a

ha be a s p e tit ion e r a de qu ate ly e xha us te d s tate 11 reme dies by

fairly prese nting both the f

actua l and leg al pre mises for his fede ral c laim to the 12 a pp ro pr iate state c ourt s. Se e 28 U. S.C. § 2 25 4( b) (1 ); B a ldw in v . Re e se , 5 41 U. S. at 30 –3 4. Th is 13 require ment of exhaustion is st rict and r eser ves only fewand nar

row e x ceptions: “Where a 14 defe ndant has proc edura lly defa ulted a cla im by

failingto raise it on direc t review , the claim may 15 be ra ised in habea s only if the def endant c an first de monstrate either cause and ac tual prejudice , 16 or that he is ac tually innocent.” Clar

k 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 nece ssity to exhaust i s strict, howeve r, the standa rd for deter mining whe ther 19 exhaustion has been met is relatively low. See Ga ldamez v. Keane , 394 F.3d 68, 72 ( 2d Cir. 20 2005) (statingthat the Supreme Court ha s warne d ag ainst interpre ting whe ther e x haustion has 21 been me t too narrowly ). In the ca se at ba

r, it is not dis puted, and we ag ree , that all constitutional 22 issues raised in Ge org ison’s brief ha ve bee n exhausted for purpose s of 28 U.S.C. § 2254(b).-13- 1 Once it is determined that a pe titioner has proc edura lly exhausted his claims for purpose s 2 of AEDPA, “ our de novo r eview is limited by standards of

defe renc e mandated by

28 U.S.C. § 3 22 54 (d ). ” Ac os ta , 5 75 F .3 d at 18 4. Un de r s e c tio n 2 25 4( d) , a fe de ra l c ourt

may no t va c ate a

state 4 conviction and grant ha beas r elief to a

state prisoner

“with re spect to any

claim that was 5 adjudicate d on the merits in State court . . . unless the a djudication of the c laim . . . resulted in a 6 decision that wa s [1] contra ry to, or involved an unre asonable application of, c lear ly established 7 Fe dera l law, as de termined by the Supreme Court of the United States,” or “ was [2] based on a n 8 unrea sonable de termination of the f acts in lig ht of the evide nce pr esente d in the State court 9 proce eding .” 28 U.S.C. § 2254(d). 10 “We must assess the state c ourt’s dec ision ‘in light of the re cord the court ha d befor e it,’” 11 Acosta, 575 F .3d at 184 (quotingHolland v. J ackson, 542 U .S. 649, 652 (2004)). A state court’s 12 de c isi on

is the n “ c ontr ary

to” c le arl y

e sta bli sh e d f e de ra l la w, a s e xpre sse d b y

the Sup re me Court , 13 if “the state court a rrives at a conc lusion opposit e to that re ache d by [t he] Court on a question of 14 law o r i f t

he state c ourt

de c ide s a c a se dif fe re ntl y tha n [th e ] Court

ha s o n a se t of mate ri a lly 15 ind ist inguis ha

ble fa c ts. ” Willi ams v . T aylor , 5 29 U. S. 3 62 , 4 12 –1 3 ( 20 00 ). “ [C]le arl y 16 established F eder al law” under § 2254( d)(1) is the g overningleg al principle or principles set 17 forth by

the Supreme Court at the time the state cour t rende rs its decision. L ockyer v. Andrade , 18 538 U.S. 63, 71–72 (2003); see also Br isco v. Erc ole, 565 F.3d 80, 87 ( 2d Cir. 2009). I t “is the 19 petitioner’s burde n to demonstrate that the state cour t applied the re levant cle arly established law 20 to t

hat r e c or d in

an o bje c tiv e ly

unre a so na

ble mann e r. ” I d. (c iti ngWoo df or d v . V isc ott i, 5 37 U. S. 21 19 , 2 5 ( 20 02 ); Sor to v . H e rb e rt , 4 97 F .3 d 1 63 , 1 66 –6 7 ( 2d Cir . 2 00 7) ). An

“ unre a so na

ble 22 application” of

clea rly established fe dera l law occ urs “if [a] state court ‘c orre ctly identifies the-14- 1 g overningleg al rule but a pplies it unreasona

bly to the fac ts of a par

ticular prisone r’s c ase,’ or 2 ref uses to extend a leg al principle that the Supreme Court has c lear ly established to a ne w 3 situation in which it shoul d g overn.” Hoi Man Yungv. Walker, 468 F .3d 169, 176 (2d Cir. 4 20 06 ) ( qu oti ngWilli ams, 52 9 U .S. at 40 7– 08 ). To thi s e nd , “ ‘t he inc re me nt [o f i nc or

re c tne ss 5 beyond err or] need not be great; otherwise, habe as re lief would be limited to state cour t decisions 6 so far

off the ma

rk as to sug g est judicial incompetenc e.’” I d. (alter ation in orig inal) (quoting 7 F ra

nc is S. v. Sto ne , 2 21 F .3 d 1 00 , 1 11 (2 d Ci r. 20 00 )) . “ [C]onf latin g‘u nr e a so na ble ne ss’ wi th 8 ‘c le ar e rr or ’ i s im

pr op e r b e c a

us e ‘[t ]he g los s o f c le ar e rr or fa ils to g ive pr op e r d e fe re nc e to s tate 9 courts.’” I d. at 87–88 (quotingL ockyer v. Andrade , 538 U.S. 63, 75, (2003)). 10 B. The Merits of Georgison’s Challenge to the Admission of His Statements at the 11 Ri v e rv ie w Co rre c tio na l F ac ili ty 12 Ge or g iso n a rgue s th at th e Di str ic t Co ur t e rr e d in c on c lud ingthat th e Ne w Y or k s tate c ourt s 13 did not unreasona bly apply fede ral lawinsofar a s those courts dete rmined that Ge org ison was 14 ne ve r “ in c us tod

y” fo r p ur po se s o f M ir and a

be c a us e he wa s n ot s ha c kle d o r o the rw ise su bje c t to 15 unusual restra ints above those of or dinary incar cer ation. Specifica lly , Geor g ison asserts that the 16 state cour

t’s decision and r easoningwas c ontrary to clear ly established fe dera l law deter mined by 17 the Supreme Court of the United States, as set for th in Mathis v. United St ates, 391 U.S. 1 18 (1968). Ac cordingto Georg ison, Mathis stands for the proposition that persons in prison ar e per 19 se “ in c us tod

y” fo r p ur po se s o f M ir and a

and the re fo re mus t be a dv ise d o f t he ir ri g hts pr ior

to 20 qu e sti on ingby

a g e nts of law e nf or c e me nt. We d e c lin e to i nte rp re t Mathi s in the mann e r s o 21 urg ed for

the re asons g iven below. 22 Th e Con sti tut ion mand ate s th at no “ pe rs on . . . s ha ll b e c omp e lle d in any c ri min a l c a se to-15- 1 be a w itness ag ainst himself.” U.S. C O N ST . amend. V. T his protection from c ompulsory 2 self-inc rimination ex tends to the states throug h the Four teenth Amendme nt. See Malloy v. 3 Hog an, 378 U.S. 1, 6 (1964). I n Miranda v. Arizona, the Supreme Court held that the 4 “ in- c us tod

y int e rr og atio n o f p e rs on s su sp e c te d o r a c c us e d o f c ri me c onta ins inh e re ntl y 5 c omp e lli ngpr e ssu re s w hic h w or

k to un de rm ine the ind ivi du a l’ s w ill to r e sis t and to c omp e l hi m 6 to s pe ak whe re he wo uld no t ot he rw ise do so fr e e ly .” 38 4 U .S. 43 6, 46 7 ( 19 66 ). As a 7 prophylactic mea sure to addr ess this conce rn, the Court for mulated the “now -familiar proce dural 8 safe guards” — the “Mira nda wa rning s” — which w ere held to be nec essar y “to sec ure the 9 privileg e ag ainst self-incr imination.” Colorado v. Spring, 479 U .S. 564, 572 (1987) (interna l 10 quotation marks omitted). 11 I t is we ll s e ttl e d th at Mi ra nd a re qu ir e s a ll i nd ivi du a ls who are un de r a rr e st, or oth e rw ise in 12 police custody , to be informed pr ior to interrog ation, inter alia, of their rig ht to remain silent and 13 to have a

n attorney prese nt duringquestioning. The Supreme Court’s c oncer n in Miranda wa s 14 the “potentiality

for c ompulsion” inherent whe n a suspec t is “thrust into an unfamiliar 15 atmosphere and run through menac ing police interrog ation proce dures.” Miranda, 384 U .S. at 16 457. I f a suspe ct is not provided with Miranda w arning s, “the prose cution is barre d from using 17 statements obtained dur ing the interrog ation to establish its case in chief .” United States v. 18 Newton, 369 F .3d 659, 668 (2d Cir. 2004) (c iting Michig an v. Ha rvey , 494 U.S. 344, 350 19 (1990)) . Miranda’ s warningrequire ments, howeve r, apply only to “custodial interr og ation.” I d. 20 at 669 (c itation omit ted). Whether a n individual is “in custody ” — an issue w e also re view de 21 novo, id.; see also Thompson v. Keoha ne, 516 U.S. 99, 112–15 (1995) — is de termined by 22 asce rtainingwhether that individual is “subjected to re straints compara ble to those associated-16- 1 wi th a

fo rm a l arr e st. ” B e rk e me r v . M c Cart y , 4 68 U. S. 4 20 , 4 41 (1 98 4) . T he ult imate qu e sti on is 2 “how a

rea sonable man in the suspe ct’s position would have unde rstood his situation.” I d. at 3 442. “Two discr ete inquiries a re e ssential to the deter

mination: first, what were the 4 circ umstances surr ounding the interrog ation; and sec ond, g iven those circ umstances, would a 5 rea sonable pe rson have felt he or she wa s not at liberty

to terminate the inter

rog ation and leave.” 6 Yar

boroug h, 541 U.S. at 663 (quotingThompson, 516 U.S. at 112). 7 The c ritical inquiry in this case is whethe r Ge org ison was “in custody” for purposes of 8 Mir and a . In E ste lle v. Smith, 45 1 U .S. 45 4 ( 19 81 ), a c a se up on

wh ic h G e or g iso n r e lie s, it i s 9 clea

r that Smith, t he prisoner , was in custody within the meaningof Miranda . He wa s 10 inc arc e rate d whe n h e ma de the c ha lle ng e d s tate me nts duri nga c ourt -o rd e re d p syc hiatr ic 11 examination. I d. at 457. The Supre me Court held that the stateme nts were inadmissible at the 12 penalty

phase of his trial as taken in violation of the F ifth Amendment. I d. at 461, 469. The 13 e xami na

tio n h avin gbe e n o rd e re d b y the c ourt , Sm ithwa s n ot f re e to t e rm inate the ps y c hiatr ic 14 inquiry , and the c ustodial circumstanc es there fore wer e much diff ere nt from those in the ca se at 15 bar. I d. at 465. 16 In M athi s, the Sup re me Court he ld t hat a su sp e c t qu e sti on e d whil e inc arc e ra te d w a s in 17 custody

for Mira nda purpose s. 391 U.S. at 5. There , an inca rce rate d individual was interviewe d 18 by

an Interna l Revenue Ser

vice ( “I RS”) ag ent about possible tax viol ations. The Court 19 conclude d that the trial cour t erre d in permitting the introduc tion of the individual’s statements at 20 tr ia l be c a

us e no Mir and a

wa rn ing s w e re g ive n. I d. . T he Court did no t f ur the r d e fi ne “ in 21 custody” or pr ovide any details as to the cir cumstance s under whic h the def endant wa s 22 questioned in that ca se. Nor did the Court hold that an inc arc erated inmate is alwa y s in custody-17- 1 for pur

poses of Mira

nda. Indeed, G eorg ison acknowle dg es that Mathis does not detail the 2 particula

r circ umstances of

the def endant’ s interrog ation in that case ; e.g ., whether the def endant 3 was ha

ndcuff ed, compe lled to enter the interrog ation room with the investigators, and how many 4 people we re pr esent duringthe interview

. 5 FollowingMathis, we held in United States v. Mora les, 834 F.2d 35 ( 2d Cir. 1987), that 6 the custody

require ment is met when the “ questioning [is] conducte d in custodial settings that 7 have inh e re ntl y

c oe rc ive pr e ssu

re s th at te nd

to u nd e rm ine the ind ivi du a l’ s w ill to r e sis t and to 8 compel him to speak.” 834 F.3d at 38. A court should consider “whe ther a

rea sonable pe rson 9 would have thought he was f ree to leave the police enc ounter at issue. I f the a nswer is yes, the 10 Miranda inquiry

is at an end; the c halleng ed interr og ation did not require a dvice of rig hts.” 11 United States v. New ton, 369 F.3d 659, 672 (2d Cir. 2004) ( emphasis adde d). In the conc urring 12 opinion in Morales, J udg e Oa kes opined that a

ny interrog ation of a pr isoner by law enf orce ment 13 for the pur

pose of g ather ing e vidence is by definition a custodial interr og ation: 14 The princ iples of Miranda support a rule that prisoners a re pe r se “ in custody .” 15 Prisoners ar e obviously “depr ived of [their] freedom of action in a [] s ignif

icant 16 way .” The y are awa re that they

cannot e scape persistent custodial interr og ation. 17 Prison is “inherently coer cive,” and is a settingparticula rly susceptible to abuse

. 1 8 Q u e s t i o n i n gi np r i s o ni n v o l v e s n e i th e r b r i e f d e t e n t i o nn o r

p u b l i c s c r u t i n y, 19 essential qualities of situations not requiringMiranda w arning s. See, e.g ., 20 Be rkeme r v. McCar ty , 468 U.S. 420, 437–38 (1984) (Mira nda wa rning s need not 21 pr e c e de ro a ds ide qu e sti on ingof mot or ist s d e ta ine d p ur su ant t o r outin e tr a ff ic 22 stops). 23 834 F.2d at 40 (internal c itations omi tted). 24 Since Morale s, howeve r, the Supreme Court has ca st serious doubt on the exis tence of a 25 per se or brig ht-line rule that would r equire Miranda w arning s in the prison setting. In I llinois v. 26 Perkins, 496 U.S. 292 (1990), the Supre me Court upheld the admission of statements e licited,-18- 1 without the benef

it of Miranda w arning s, from an inmate by an under cover

office r masquer ading 2 as anothe r inmate. Perkins, 496 U.S. at 295–96. The Court held that there was no da ng er of 3 coer cion in the “inter rog ation” that occ urre d there , and, thus, it did not offend the Court’s 4 conce rns in Miranda. I d. at 298. The Court “ reje ct[ed] t he ar gument that Miranda w arning s are 5 require d whene ver a suspect is in custody

in a technic al sense a

nd conver ses with someone who 6 happens to be a g overnme nt ag ent.” I d. at 297. The Court fur ther noted tha

t “[t] he bar e fa ct of 7 c us tod

y may no t in e ve ry ins tanc e re qu ir e a

wa rn inge ve n whe n th e su sp e c t is awa re that he is 8 speakingto an offic ial, but we do not have occa sion to ex plore that he re.” I d. at 299. 9 Subsequent to Perkins, and in his dissent from cer tiorari in B radle y

v. Ohio, 497 U.S. 1011 10 (1990), Justi ce Ma rshall observe d that it was an “ open[] question whether ‘the ba re f act of 11 c us tod

y wo uld in e ve ry ins tanc e re qu ir e a

wa rn inge ve n whe n th e su sp e c t is awa re that he is 12 speakingto an offic ial.’” 497 U .S. at 1013 (Marsha ll, J ., dissenting f rom ce rt. denial (quoting 13 Perkins, 496 U.S. at 299)). Justi ce Ma rshall also conf

irmed that the Court had yet to “cla rify 14 what constitutes ‘c ustody ’ for Miranda pur

poses in the prison setting .” I d. at 1015. 15 B e c a

us e the pe r s e ru le ur g e d b y Ge or g iso n is no t c le arl y

e sta bli sh e d f e de ra l la w, the state 16 courts her e did not unrea sonably decline to a

pply it. See Carey

v. Musladin, 549 U.S. 70, 77 17 (2 00 6) (“ Gi ve n th e la c k o f h old ing s f ro m th is C ourt

re g ard ingthe [iss ue in q

ue sti on ] . . . it 18 cannot be said that the state c ourt ‘unre asonably applied cle arly

established F eder al law.’ ” 19 (quoting28 U.S.C. § 2254(d)(1)) ). Indeed, w e have held, since Mathis and Morales, that the 20 mere fac t of incar cer ation does not nec essar ily require that an individual be in the sort of c ustody 21 that war

rants Miranda

war nings be fore an intervie w. See Ne wton, 369 F.3d at 670–71 (citing 22 United States v. Wil loughby , 860 F.2d 15, 23 ( 2d Cir.1988)); see also Rodrig uez, 356 F.3d at-19- 1 258 (statingthat the mere fac t that “Rodriguez was inca rce rate d at the time of the inter view may 2 not be suffic ient for a findingof custodial interr og ation”). F or example, in United States v. 3 Rodrigue z, 356 F.3d 254 (2d Cir. 2004), whe re a n ag ent of the Immigration and Natura liz ation 4 Service interviewe d an inmate on unr elated c harg es, we held that to deter mine whether

Miranda 5 war

nings a re r equire d, a ce ntral inquiry is whether the statement at issue wa s made during 6 “custodial interr og ation.” 356 F .3d at 258. 7 Custodial int err og ation exis ts when a la w enf orce ment officia l questions an 8 individual and that questioning w as (1) conducte d in custodial settings that have 9 inh e re ntl y

c oe rc ive pr e ssu

re s th at te nd

to u nd e rm ine the ind ivi du a l’ s w ill to r e sis t 10 and to compel him to speak, ( the in custody require ment) and ( 2) whe n the inquiry 11 is conducted by office rs who ar e aw are of the potentially incriminatory

nature of 12 the disclosures soug ht (the investig ative intent re quirement). 13 356 F.3d at 258 (internal quotation mar ks and citation omitted). 14 In addition to rejec ting a n interpre tation of Mathis that all prisoners a re “ in custody ” for 15 purposes of Mira nda, we conclude that the coe rcion inher ent in custodial interrog ation, which 16 was of c oncer

n in Miranda, simply

was not pre sent here . There was no “ measure of compulsion 17 above a

nd beyond that inhere nt in custody itself,” Rhode I sland v. Innis, 446 U.S. 291, 300 18 (1980), a

nd Geor g ison was not “subjec ted to restra ints comparable to those associate d with a 19 fo rm a l arr e st, ” B e rk e me r, 46 8 U .S. at 44 1. Th e re wa s n o c oe rc ive pr e ssu re that te nd e d to 20 undermine G eorg ison’s will or to compel him to speak. This is supported by the fa ct that 2 1 G e o r g i s o nf

e l tf r e e t o r e f u s e t o an s w e r

qu e s t i o n s an d

t o e n d th e i n t e r v i e wo f h i s o w nv o l i t i o n . It 2 2 i s al s o ap p ar en tth atGe o rgi s o nl ef tth e v i s i t i n g ro o mata t i m e a n d i na m an n er

o f h i s ch o o s i n g, 23 demonstratingthat he knew he wa s “at liberty

to terminate the inter

rog ation and leave.” See 24 Thompson, 516 U.S. at 112. At no time was Geor g ison restraine d duringquestioning, whichAn individual is not alway s “in custody” eve n if (s)he is not free to leave the 4 confr ontation with police, a situation not present in this case . For example, a motorist who has been stoppe d by

the police f

or a tra ffic inf

rac tion is clearly

not free to leave the confr ontation, y et Miranda r ights a

re not implicated. See Be rkeme r, 468 U.S. at 440. Also, despite the f act that any confr ontation with police office rs “will have coer cive a spects to it, simpl y by virtue of the fac t that the police off

icer is part of a

law enf orce ment sy stem which may ultimately

cause the suspect to be c harg ed with a c rime,” e ven a police interrog ation at the stationhouse will not give rise to a ne ed for

Miranda w arning s if the individual is not under arr est or other wise depr ived of his liberty to leave. Mathiason, 429 U.S. at 495. “[T] he cir cumstance s of ea ch ca se . . . influenc e a dete rmination of whethe r a suspe ct is ‘in custody ’ for purposes of r ece iving of

[si c] Miranda protec tion.” California v. B ehele r, 463 U.S. 1121, 1125 (1983). -20- 1 took place in a

visitors’ room and not in a ce ll or interrog ation room which mig ht be ca pable of a 2 more prof

ound custodial atmosphere

. 4 3 We conclude that Miranda wa rning s were not require d in this case as “ there wer e no 4 restric tions on [ Geor g ison’s] freedom over and above ordinary

prison confine ment[,]

. . . 5 [Georg ison] ag ree d to be interview ed,” a nd the interviewwas c onducted in the visiting r oom. 6 People v. Geor g ison, 750 N.Y.S.2d 18, 19 (App. Div. 2002) (c iting People v. Alls, 608 N.Y.S.2d 7 139 (1993)) . Acc ording ly , the state c ourts’ holding s that the admission in evidence of 8 Geor g ison’s statements was c onstitut ional was not contra ry to, or an unre asonable application of, 9 c le arl y

e sta bli sh e d f e de ra l la w a s inte rp re te d b y

the Sup re me Court

. 10 III. Conclusion 11 The judg ment of the District Court deny ing G eorg ison’s petition for a wr it of habea s 12 corpus is af

firmed, a s the state cour

ts did not unreasonably

apply clea rly established fe dera l law 13 a s d e te rm ine d b y the Un ite d St ate s Su

pr e me Court

.