OPINION AND ORDER

GERARD E. LYNCH, District Judge

The matter before the Court presents a highly technical series of questions about the meaning and effect of an order of this Court granting habeas corpus relief. The unusual procedural posture of the case implicates this Court in conflicting obligations of comity and deference to the orders and calendars of two federal and one state court.

Petitioner was convicted in 1998 of robbery in the New York State courts. After unsuccessfully appealing his conviction through the state courts, he sought a writ of habeas corpus in this Court, arguing that his federal constitutional rights were violated by the admission into evidence of a post-arrest statement. On April 1, 2004, this Court (the Honorable Constance Baker Motley, J.) granted the writ, ordering that "[p]etitioner's convictions shall, therefore, be dismissed, unless a new trial is commenced within sixty days of the date of entry of this order." Respondents appealed that order, and his appeal, though fully argued and submitted, remains pending before the Second Circuit. Respondents sought a stay of this Court's order, which was denied by Judge Motley on April 26, 2004. On appeal, the Second Circuit affirmed this Court's denial of respondents' motion to stay the judgment in an oral order on June 15, 2004, which was reduced to writing on August 3, 2004. Nevertheless, more than seven months after this Court's order, which contemplated a retrial within 60 days, and some three months after the Second Circuit refused to stay that order, petitioner has not been retried, and remains incarcerated. Although the state court has vacated petitioner's former conviction, it has repeatedly adjourned his retrial, and has set bail pending that retrial, which petitioner cannot meet. Accordingly, petitioner remains in custody, awaiting a retrial that has not been scheduled. Petitioner now asks this Court to "enforc[e] [its] April 1, 2004, order by directing petitioner's unconditional release." The case has been administratively reassigned to me.

Petitioner argues that the state court is in defiance of this Court's Order, which has not been stayed. He makes two interrelated arguments: (1) Petitioner contends that this Court expressly ordered that he be released if not retried within a specific time period, which has now elapsed. That period having expired, and the order in question not having been stayed or reversed, petitioner argues that he must be released immediately. (2) Petitioner also argues that Fed.R.App.P. 23(c) independently requires his release without bail, insofar as it commands that "[w]hile a decision ordering the release of a prisoner is under review, the prisoner must — unless the [federal courts] order otherwise — be released on personal recognizance, with or without surety." Since this Court's order granting release is on appeal, and neither this Court nor the Court of Appeals has set bail or ordered him detained, petitioner concludes that he is entitled to immediate release.

Respondents, on the other hand, point out that petitioner's conviction, which was found invalid by this Court, has been duly set aside. In respondents' view, petitioner is simply being treated like any other state indictee awaiting trial, for whom a reasonable bail can be set (and petitioner does not claim that the bail set by the state court is excessive). Respondents conclude that the order of this Court is being respected, since the state has vacated petitioner's conviction and acknowledged its obligation to grant him a retrial. In respondents' view, this is really all that this Court ordered, and its time limit is simply a time within which the state needs to act in recognition of its obligations, not a hard-and-fast deadline for retrial.

DISCUSSION

I. The Merits of the Petition

The order in question stems from an incriminating statement made by petitioner after his arrest. The robbery victim had described her assailant's hair as brown. While petitioner was being processed after his arrest, in the course of taking "pedigree" information, a detective asked petitioner, whose hair was "bright flaming blonde" and appeared to have been recently dyed, what his "real hair color" was. Petitioner replied that it was brown, and that he had dyed it the day before. Rosa v. McCray, No. 03 Civ. 4643 (CBM), 2004 WL 736859, at *1 (S.D.N.Y. Apr. 5, 2004). When the People sought to introduce this statement at trial, petitioner moved to exclude it, on the ground that he had not been provided with pre-trial notice of the statement, as required by NY CPL § 710.30. Following a hearing, the trial court allowed the statement to be introduced, holding that under the precedent of People v. Rodney, 85 N.Y. 2d 289 (1995), notice under § 710.30 was not required with respect to pedigree information. The Appellate Division affirmed the conviction, noting that "The People were not required to give notice pursuant to CPL § 710.30 . . . [as the statement was] made in response to a pedigree question asked as part of routine processing . . . [and] the officer's inquiry . . . was reasonably related to administrative concerns, and was neither intended, nor reasonably likely, to elicit an incriminating response." People v. Rosa, 743 N.Y.S. 2d 400, 401 (1st Dept. 2002). The New York Court of Appeals denied leave to appeal. See Rosa v. McCray, 2004 WL 736859, at *2-*4.

Judge Motley determined that petitioner's rights under Miranda v. Arizona, 384 U.S. 436 (1966), had been violated, because the question was indeed reasonably likely to elicit incriminating information, as it was not a routine booking question and the officer knew that the question, if answered truthfully, was likely to lead to an incriminating response. Rosa v. McCray, 2004 WL 736859, at *9-*10. Accordingly, the Court granted habeas relief, concluding that the state courts' resolution of the question was an unreasonable application of governing Supreme Court precedent. Id. at *10; see 28 U.S.C. § 2254(d).

With all due respect to a distinguished fellow judge of this Court (as well as to the panel of the Court of Appeals that is now reviewing that judgment), I find the Court's reasoning problematic. It is difficult to see how the admission of petitioner's statement, assuming arguendo that Miranda warnings were not given and that the Miranda issue was properly presented to the state courts, could constitute an unreasonable application of Supreme Court precedent, as is required for habeas relief. A Supreme Court plurality has recognized a "routine booking question exception which exempts from Miranda's coverage questions [designed] to secure the biographical data necessary to complete booking or pretrial services." Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990) (Opinion of Brennan, J.) (internal quotation marks omitted). As Judge Motley recognized, see Rosa v. McCray, 2004 WL 736859, at *9, the Muniz plurality opinion "has been uniformly recognized . . . by the federal and state courts" as establishing such an exception. See Thomas v. United States, 731 A.2d 415, 421 (D.C. 1999) (collecting cases). The Second Circuit is part of this consensus. United States v. Montana, 958 F.2d 516, 518 (2d Cir. 1992).

While Second Circuit caselaw, as Judge Motley emphasized, has "suggested that the exception is best `limited to simple identification of the most basic sort (e.g., name, address, marital status),'" Rosa v. McCray, 2004 WL 736859, at *9, citing United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1113 n. 2 (2d Cir. 1975), the Supreme Court has given only the most limited attention to the precise parameters of the exception. Nothing in Muniz itself provides definitive guidance on the scope of the exception, and the relevant discussion by the plurality neither cites nor endorses the Second Circuit's opinion in Hines.

Moreover, to the extent that Justice Brennan's plurality opinion casts any light on this case, it is not inconsistent with the state court's conclusion. The Muniz plurality did not independently examine the necessity of the particular questions the police asked in order to complete the state's administrative objectives; rather, it simply noted that "[t]he state court found that the first seven questions were `requested for record-keeping purposes only,' and therefore the questions appear reasonably related to the police's administrative concerns." 496 U.S. at 601-02 (record citation omitted). The Supreme Court thus appears to have accepted the state court's determination that the questions were asked for administrative purposes as authoritative. In contrast,Rhode Island v. Innis, 446 U.S. 291 (1980), on which Judge Motley heavily relied, Rosa v. McCray, 2004 WL 736859, at *10, provides little insight into the scope of the "pedigree" exception. Judge Motley appears to have concluded that questioning that constitutes "interrogation" under Innis cannot be considered "pedigree" questioning under Muniz. Id. ButInnis predates Muniz, and Justice Brennan's opinion expressly holds that the questions in Muniz did constitute interrogation under Innis, but that the answers were nevertheless admissible due to the exception for pedigree information. Muniz, 496 U.S. at 600-02.

Under these circumstances, the state courts' application ofMiranda, Innis, and Muniz can only with great difficulty be considered an "unreasonable application" of Supreme Court precedent. 28 U.S.C. § 2254(d). The state courts identified the correct inquiry and applied the correct test. Reasonable jurists could disagree about the precise contours of the pedigree exception recognized in Muniz, and accordingly, that the state courts' conclusion that the question about hair color was "reasonably related to administrative concerns," and not "reasonably likely to elicit an incriminating response,"Rosa, 743 N.Y.S. 2d at 401, was a reasonable one.

Nevertheless, as petitioner points out, my views on the merits of his petition are not controlling. This Court has granted his petition, and the merits of that order are before the Court of Appeals, and no longer before this Court. This Court now has authority to enforce, but not to modify, its earlier order.Phifer v. Warden, 53 F.3d 859, 861-65 (7th Cir. 1995); Burdine v. Johnson, 87 F. Supp. 2d 711, 716-17 (S.D. Tex. 2000); see also Fed R. App. P. 23(d). Accordingly, the Court cannot now revise the judgment granting habeas relief.

II. Conditional Grants of Habeas

"Originally, the courts confined the ultimate relief available in habeas corpus proceedings to orders requiring the petitioner's unconditional discharge from custody. If the legal error proved by the petitioner did not render her current custody illegal, no remedy was available; if the error satisfied that requirement, the courts assumed that they lacked the ability to order a retrial and that they had no choice but to order the prisoner released unconditionally (although often without prejudice to rearrest and retrial)." 2 Randy Hertz and James S. Liebman,Federal Habeas Corpus Practice and Procedure § 33.1 at 1499 (4th ed. 2001) (footnotes omitted). Today, however, the habeas corpus statute authorizes the courts to grant such relief "as law and justice require," 28 U.S.C. § 2243, and the principal form of habeas relief is the "conditional release order," which "only requires release in the event a retrial or other action sufficient to cure the violation does not occur within a period of time specified in the order granting the writ." Hertz and Liebman, § 33.1 at 1499; see also Herrera v. Collins, 506 U.S. 390, 403 (1993).

It seems clear that Judge Motley issued this form of relief. Although the usual form of order calls for the petitioner's "release" absent retrial, see, e.g., Leka v. Portuondo, 257 F.3d 89, 107 (2d Cir. 2001) (remanding "for the entry of judgment conditionally granting the writ and ordering [petitioner's] release unless the State provides him with a new trial within 90 days"); Lindstadt v. Keane, 239 F.3d 191, 206 (2d Cir. 2001) (same); Noble v. Kelly, 89 F.Supp.2d 443, 464 (S.D.N.Y. 2000),aff'd, 246 F.3d 93 (2d Cir. 2001) ("Respondent is directed either to release the Petitioner from custody or to retry him within 90 days of this order."), the form is hardly invariable.See, e.g., Boyette v. Lefevre, 246 F.3d 76, 93 (2d Cir. 2001) (remanding to the district court "to grant the petition unless the state grants [petitioner] a new trial within ninety days"). The entire theory of the conditional release order is that "federal courts may delay the release of a successful habeas petitioner in order to provide the State an opportunity to correct the constitutional violation found by the court." Hilton v. Braunskill, 481 U.S. 770, 775 (1987) (emphasis added). The ultimate relief contemplated by the conditional release order is the defendant's release from custody, if the condition is not met. "Conditional orders are essentially accommodations accorded to the state. They represent a district court's holding that a constitutional infirmity justifies petitioner's release. The conditional nature of the order provides the state with a window of time within which it might cure the constitutional error. Failure to cure that error, however, justifies the district court's release of the petitioner." Phifer, 53 F.3d at 864-65.

There is no indication that by directing that petitioner's "convictions shall . . . be dismissed, unless a new trial is commenced within sixty days," Rosa v. McCray, 2004 WL 736859, at *13, Judge Motley meant to accomplish anything other than a standard "conditional release order" in setting a time limit for petitioner's retrial. The intention of the Court appears clearly to have been to grant the writ, subject to the state's right to retry defendant within 60 days.

The conditional release order leaves it to the state to release the defendant or to retry him. But "[i]f the state fails to act within the time set for retrial . . . to occur, the petitioner must be released from custody immediately." Hertz and Liebman, § 33.3 at 1505-06. As the Second Circuit held in Grasso v. Norton, 520 F.2d 27, 38 (2d Cir. 1975): "Whether the conditional writ was later held to be erroneous . . . is beside the point. The conditional writ was a valid order of the court and remained in force and effect until set aside or reversed." If the respondent fails to comply with the court's order, "it [is] within [the district court's] sound discretion to issue the final writ discharging [petitioner] from custody." Id.

As Grasso indicates, however, the district court retains considerable flexibility in deciding how to respond to the state's failure to retry a successful habeas petitioner within the set time limit. Upon motion by the state showing good cause for delay and lack of prejudice to the petitioner, the district court may extend the time for retrial. Chambers v. Armontrout, 16 F.3d 257, 261 n. 2 (8th Cir. 1994); Moore v. Zant, 972 F.2d 318, 320-21 (11th Cir. 1992). The Court may take further action, including barring a retrial, "if the state inexcusably, repeatedly, or otherwise abusively fails to act within the prescribed time period or if the state's delay is likely to prejudice the petitioner's ability to mount a defense at trial." Hertz and Liebman, § 33.3, at 1507-08 (footnotes omitted). What, if any, remedy should be provided rests, as the Second Circuit held in Grasso, within the discretion of this Court.

Short of an order barring retrial, however, which is only appropriate in "extraordinary" circumstances, Foster v. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993); Capps v. Sullivan, 13 F.3d 350, 352-54 (10th Cir. 1993); Burdine, 87 F. Supp. 2d at 717, even an order requiring release of a petitioner does not prohibit the reprosecution of the petitioner. "Absent such `extraordinary circumstances,' the federal courts usually permit rearrest and retrial after the time period specified in the conditional release order has elapsed and the prisoner has been released." Hertz and Liebman, § 33.3, at 1508.

Respondents argue that that is in effect what has happened here — that by vacating the prior convictions (and thus relinquishing its power to hold the petitioner without bail on the strength of the former, putatively unconstitutional conviction), the state court has effectively "released" petitioner, and then simply allowed him to be rearrested and retried on the constitutionally valid underlying indictment. Before the writ was granted, and while the writ remained suspended pending the designated time for retrial, petitioner continued to be held without bail, on the strength of the underlying judgment of conviction. Now, however, petitioner has been "released" from custody on the underlying conviction, and is being held in default of the reasonable bail that has been set on his intended reprosecution. In effect, he is being held not as a sentenced prisoner, but as a defendant with a pending charge. The difference is that he is now entitled to bail, and the state must take the risk that he will post the bail established and obtain his liberty.

This argument can be accepted only with qualifications. On the one hand, the grant of the writ in this case does not reflect an underlying invalidity to the indictment (such as, for example, a double jeopardy violation) that would render it unconstitutional to retry petitioner; it merely reflects a putative trial error that invalidates his prior conviction. Under these circumstances, the Court owes substantial deference to the state court's need to manage its calendar appropriately. On the other hand, this Court directed release of the defendant unless a retrial was granted in a set time period. This was an order within the power of the Court, and the failure to grant petitioner such a retrial gives the appearance of defiance of this Court's order that the retrial be promptly commenced. Arguably, the state has effectively granted itself an extension of that deadline, in disregard of the legitimate order of this Court.

On balance, it is appropriate to withhold further relief at this time. The Court is not without power to enforce its order by barring a retrial if the state courts inappropriately attempt to undermine the grant of habeas corpus by detaining the defendant indefinitely, on a bail that he manifestly cannot raise, in disregard of his right to be retried. There is no basis at this time for concluding that such drastic intervention by this Court is necessary. Petitioner has both a state and a federal right to a speedy trial, and there is no reason to believe that the state court will not fully comply with those rights. Nor is there any reason to believe that the state court fails to recognize the binding force of this Court's order, or intends to frustrate the issuance of the writ. It appears, rather, that the state court intends to delay retrial for what it (and this Court) hopes will be a modest period, during which the Second Circuit has under advisement the already argued appeal of Judge Motley's order. In view of the possibility that the order was in error, it would be highly inefficient to attempt to compel the state court to conduct a trial which may be obviated by the resolution of the appeal. There is no reason to believe that, if the order is affirmed, the state courts will not proceed promptly to retry petitioner, and if they do not, a further application to this Court, whether by way of a renewed motion to enforce the prior order, or by way of a separate petition for habeas corpus pursuant to 28 U.S.C. § 2241, see Capps, 13 F.3d at 353, would be in order. Under all of the circumstances, this Court declines to exercise its discretion to enforce its prior order by ordering the petitioner's immediate and unconditional release from custody.

III. Fed.R.App.P. 23(c)

Finally, petitioner contends that, the writ having been granted, even conditionally, Fed.R.App.P. 23(c) requires his release on his own recognizance, since neither this Court nor the Court of Appeals has "order[ed] otherwise." Accordingly, petitioner argues, since no such order "otherwise" has been entered, and since this Court lacks jurisdiction to modify Judge Motley's original order, which is on appeal, the Court simply has no choice but to direct his immediate release. This argument is flawed.

As Hertz and Liebman point out, "Rule 23(c) and its counterpart in the Supreme Court Rules . . . establish a presumption of release pending appeal in cases in which the district court granted unconditional relief." § 36.4d at 1620 (emphasis in original). As the treatise writers carefully document, the ancestry of Rule 23(c) goes back to a Supreme Court rule adopted in 1886, at a time when the expectation was that a successful habeas corpus applicant could achieve only one remedy — an unconditional order of release. Moreover, until 1967, the Supreme Court rule requiring release was mandatory, not presumptive, and was triggered only by a decision "discharging the prisoner." Id. at 1621-23 (internal quotation marks omitted). The rule was modernized, and incorporated into the Federal Rules of Appellate Procedure, in 1967. Id.

As the treatise writers recognize, there is "some confusion" about how the Rule applies to prisoners who have been granted conditional rather than absolute writs of habeas corpus. Id. at 1620-21. Hertz and Liebman argue that "the change in 1967 from mandatory to merely presumptive release pending a state's appeal and the simultaneous change in the triggering event from a decision actually `discharging' the prisoner to one `ordering [his] release,'" coupled with the "recognition that the preexisting rule governing release pending appeal did not cover what, by then, had become the predominant type of habeas corpus relief — conditional release orders," make it "likely that the Supreme Court intended to expand the new rule to include release pending review of relief orders contemplating retrial as well as unconditional release." Id. at 1622.

This interpretation makes a great deal of sense, but the Court need not decide whether it is correct, for the rule does not have the consequence for which petitioner argues. Even assuming that Rule 23(c) applies to conditional release orders, the present version of the rule merely sets a presumption, not a mandatory requirement, of release on recognizance. The court granting habeas retains the discretion to "order otherwise." Fed.R.App.P. 23(c). There is no question that Judge Motley, on entering the conditional release order, retained full power and discretion under Rule 23 to set any appropriate bail conditions pending appeal of her order.

Contrary to petitioner's argument, the filing of the appeal does not deprive this Court of jurisdiction to set such conditions. It is true that the filing of the appeal deprives the District Court of jurisdiction to reconsider the merits of petitioner's case, or to modify the judgment conditionally granting habeas corpus that is the subject of the appeal.Burdine, 87 F. Supp. 2d at 716-17. But a bail order is not a modification of that judgment, but rather a collateral matter, over which this Court retains jurisdiction.

United States v. Hochevar, 214 F.3d 342 (2d Cir. 2000), demonstrates this point. In Hochevar, a convicted criminal defendant who had filed a notice of appeal sought bail from the Court of Appeals. The Second Circuit directed him to apply for that relief to the District Court in the first instance, notwithstanding that the underlying judgment was already on appeal. The particular issues raised in Hochevar with respect to appellate bail practice are only indirectly relevant to this case. What is relevant is that the Court could not have directed that the bail application be made in the first instance to the District Court if the appeal of the merits of the underlying case deprived the District Court of jurisdiction to hear the bail application, or if the grant of release pending appeal, or the determination of conditions of release that had not already been imposed, would constitute a forbidden "modification" of the judgment of the District Court that was already on appeal.

Accordingly, petitioner is wrong that this Court now lacks authority to "order otherwise" than that he be released on recognizance pending appeal. In exercising its discretion, the Court is mindful of the respect due to the original order of conditional release. However, it does not appear that either party put before Judge Motley the question of bail pending appeal of her order, as opposed to stay of her order. Similarly, the decision by the Court of Appeals to deny a stay of the order does not seem to have addressed the question of bail release pending determination of the appeal, and does not appear to reflect a decision that petitioner should be immediately released on recognizance. A decision by this Court setting release conditions other than immediate release on recognizance thus does not disregard any determination made by the Second Circuit.

Under the unusual conditions reflected on this record, an order directing immediate release rather than setting conditions appears to this Court inappropriate. The state court has vacated petitioner's conviction, recognized the need for a new trial, and authorized petitioner's release on bail if the bail conditions set (which petitioner does not argue are unreasonable or excessive) can be met. There is thus no need for this Court to interfere with the state court's bail decision in order to vindicate its authority, which is in no way being defied by the state court. The appeal of this Court's conditional grant of habeas corpus has been argued; presumably a decision will be forthcoming in a reasonable time. If the Second Circuit affirms this Court's order, respondents represents that petitioner will be promptly retried. If the Second Circuit reverses, the grant of habeas corpus will be vacated, and petitioner will presumably be restored to custody under the original judgment. Moreover, because the merits of the appeal have been argued, the Second Circuit is now "in a better position than the district court to assess the merits and likely outcome of the appeal," Hochevar, 214 F.3d at 344, and thus to decide whether petitioner should be ordered released immediately or not. Since it remains open to petitioner either to appeal the present order, or to move for release on recognizance in the Court of Appeals, there are available remedies for petitioner in the court best suited to decide his status. Under these circumstances it would be imprudent for this Court to order petitioner's immediate release. Rather, exercising its discretion under Rule 23(a) to "order otherwise" than that petitioner be released on his own recognizance, the Court directs that petitioner be released pending resolution of respondents' appeal only on complying with the bail conditions set by the state court.

CONCLUSION

Accordingly, for the reasons stated above, petitioner's motion for an order directing his immediate and unconditional release is denied. It is ordered that, this Court having issued a conditional writ of habeas corpus, petitioner shall be released on bail pending respondents' appeal only on complying with the bail requirements set by the Supreme Court of the State of New York, Bronx County.