Opinion
02 Civ. 9340 (SAS) (AJP)
June 30, 2003
REPORT AND RECOMMENDATION
To the Honorable Shira A. Scheindlin, United States District Judge:
Pro se petitioner Wade Briggs seeks a writ of habeas corpus from his May 24, 1999 conviction in Supreme Court, New York County, of multiple counts of robbery and criminal possession of a weapon, for which Briggs was sentenced to concurrent terms, the longest of which was twenty-three years to life imprisonment. (Dkt. No. 8: 5/24/99 Sentencing Transcript ["S."] at 9.) Briggs' habeas corpus petition alleges that: (1) the trial court erred by finding there was probable cause to arrest him, and by denying his motion to suppress evidence obtained pursuant to his arrest (Dkt. No. 1: Pet. ¶¶ 12(A)-(B)); and (2) his sentence is excessive and should be reduced in the interest of justice (Pet. ¶ 12(C)).
For the reasons discussed below, Briggs' petition should be DENIED.
FACTS
On April 9, 1998, Briggs and Demel Jennings were arrested in connection with the robbery of a store on 151st Street and Amsterdam Avenue in Manhattan. (See Ex. A: Briggs 1st Dep't Br. at 3.) In an indictment dated April 24, 1998, Briggs and Jennings were each charged with three counts of first degree robbery, three counts of second degree robbery, and two counts of criminal possession of a weapon. (See Briggs 1st Dep't Br. at 4.)
References to exhibits are to those attached to the Affidavit of Assistant Attorney General Beth J. Thomas, Dkt. No. 5.
Briggs' Pretrial Suppression Hearing
At a Wade/Mapp/Huntley/Dunaway suppression hearing on March 22-23, 1999, five police officers testified regarding the arrest. (See generally Dkt. No. 8: Hearing Transcript ["H."].)
At about 1:15 p.m. on April 9, 1998, Police Officers John Alvinez, Lauren Dong, and Naphtali Betances were traveling west in a police van on 145th Street and St. Nicholas Avenue when they passed two men riding bicycles quickly against traffic. (Alvinez: H. 8-10; Betances: H. 38-39; Dong: H. 56-58, 77-79.) A third bicyclist, Anthony Green, who was following the two bicyclists, stopped next to the police van and told the officers that the two men had just robbed a store on 150th Street and Amsterdam Avenue. (Alvinez: H. 10-12, 21, 25; Betances: H. 39, 44; Dong: H. 56-59, 64-65, 77-79.) The officers followed Green to St. Nicholas Park, where Briggs and Jennings were standing in the park with the bicycles between their legs. (Alvinez: H. 12-13, 28; Betances: H. 39; Dong: H. 59, 80-81.) Green pointed at the defendants and said, "'[t]hose guys.'" (Dong: H. 59.)
As the three officers got out of the van and walked into the park, Briggs and Jennings rode off in opposite directions; Officers Alvinez and Betances chased Jennings, and Officer Dong ran after Briggs. (Alvinez: H. 14-15, 29; Betances: H. 40; Dong: H. 60-61.) When Officer Betances yelled, "'Police. Don't move,'" Jennings put his hands in the air, and the officers asked him, "where is the gun?" (Alvinez: H. 16, 31-32; Betances: H. 41, 50-51.) Jennings replied that it was in his waistband. (Alvinez: H. 17; Betances: H. 41-42.) Officer Alvinez reached into Jennings' waistband, removed a loaded handgun, and arrested him. (Alvinez: H. 17-18, 34-35; Betances: H. 42.)
Officer Betances could not recall if Green told the officers that Briggs and Jennings had a gun (Betances: H. 44), but Officer Alvinez testified that he assumed they had a gun because of the nature of the crime (Alvinez: H. 17, 22).
Officer Dong caught up to Briggs, drew his gun, and yelled, "'Police. Don't move.'" (Dong: H. 61, 82.) Briggs stopped, and Officer Dong said, "'Turn around. Face the wall.'" (Dong: H. 61, 82-83.) Officer Dong asked Briggs where he had come from, to which Briggs replied that he had ridden his bicycle from his girlfriend's house on Lenox Avenue, which Officer Dong knew was in the opposite direction from where he had seen Briggs traveling. (Dong: H. 61-62.) Officer Dong frisked Briggs and felt a bulge in his right jacket pocket. (Dong: H. 62.) He looked inside Briggs' unzipped pocket and saw money. (Dong: H. 62-63.) He asked Briggs how much money was in his pocket, to which Briggs replied, "'[a] coupla hundred dollars.'" (Dong: H. 63.) Officer Dong asked how much that was, to which Briggs responded: "'Two or three hundred, asshole. What is it to you[?]'" (Id.) Officer Dong handcuffed Briggs and recovered $726.80 from his jacket and pants pockets. (Dong: H. 63-64.) Officer Betances radioed for back-up, and Officer Alvinez moved Briggs and Jennings to St. Nicholas Avenue between 140th and 141st Streets. (Alvinez: H. 36; Betances: H. 54.)
Police Officer Jorge Encarnacion, responding to a radio transmission for assistance, arrived at the location where Briggs and Jennings were being held. (Encarnacion: H. 86-87.) A sergeant already at the scene told Officer Encarnacion to pick up the victims of a robbery at a candy store on Amsterdam Avenue. (Encarnacion: H. 87, 106.) The officer drove to the candy store with his partner and bicyclist Green. (Encarnacion: H. 87, 90-91, 100-01.) Officer Encarnacion told the four people inside the store that two men had been detained, and that the police would like them to see if they could identify the men. (Encarnacion: H. 88, 92, 96-97, 103-05.) Two of the victims, an elderly man (Barton) and an elderly woman (Daniels), agreed to go with the officer while the other two victims remained to keep the store open. (Encarnacion: H. 87-88, 90, 99, 102.)
Police Officer Ernesto Rojas and Lieutenant Kramer drove to 145th Street and St. Nicholas Avenue in Officer Rojas' van where they met Officer Encarnacion and the two elderly victims. (Rojas: H. 109-13.) The victims got into the back of the van, and Officer Rojas drove to where Briggs and Jennings were being detained. (Rojas: H. 109-12, 117.) Officer Rojas stopped the van, and Lieutenant Kramer asked the victims to look to their right. (Rojas: H. 113, 123.) About a car-and-a-half length away from the van, the victims saw Briggs and Jennings standing with their hands behind their backs (so the handcuffs were not visible) next to two plainclothes police officers. (Rojas: H. 112-15, 119-20, 122-23.) The elderly man said, "'That's them.'" (Rojas: H. 116, 124-25.)
Briggs' counsel argued, inter alia, that since the officers did not know if bicyclist Green was reliable, they did not have probable cause to stop and arrest the defendants. (H. 152-53, 160-63, 172-74.)
The Court's Suppression Decision
The court found that the statement Green made to the police officers that "[t]hose two bikers have just robbed a store at 150th Street and Amsterdam Avenue," gave the officers grounds to investigate further. (H. 185.) The court also concluded that when the officers caught up with Briggs and Jennings on their bicycles and Green identified them as the robbers, the police had probable cause to arrest them. (H. 185-86.)
The court found no unlawful questioning of Jennings when an officer asked him, "[w]here is the gun?" because "[t]here is no difference between saying, '[w]here is the gun?' and putting a hand on his pocket to feel for a gun, which [the officer] has a right to do." (H. 186.) Since the questioning was lawful, it did not invalidate Jennings' response, "[i]n my waistband," nor did it invalidate the recovery of the gun. (H. 187.)
With regard to Briggs, the court found:
[T]he police had probable cause to arrest Briggs. They also had the right to search him and to recover the money. When he was asked, "How much is in there?" the defendant answered, "A couple of hundred, two or three hundred." I find that those questions were also lawful and that the money was lawfully recovered, both the money that was taken at the scene and the money at the station house.
(H. 187-88.)
Addressing the Wade issue, the court found that the police conduct during the show-up identification of the defendants by Barton and Daniels was not unduly suggestive since "[t]he 6 defendants were standing in the street next to two plain clothes men, with their hands handcuffed behind them. Nothing the police said indicated who [the victims] should pick out. . . ." (H. 188.) the court, therefore, allowed Barton's testimony identifying Briggs and Jennings. (Id.) The court suppressed Daniels' pretrial identification testimony because the hearing evidence did not establish that she had identified the defendants; however, the court's ruling did not preclude Daniels from attempting to identify the defendants at trial. (H. 168-69, 188-89.) The court otherwise denied defendants' motions. (H. 189.)
Verdict and Sentencing
On March 29, 1999, the jury found Briggs guilty of all charges in the indictment. (Verdict: Tr. 850-54.) On May 24, 1999, the court adjudicated Briggs, without objection, a predicate violent felony offender. (S. 2-4.) The court sentenced him to concurrent indeterminate prison terms of twenty-three years to life on each of the three counts of first degree robbery, twenty years to life on each of the three counts of second degree robbery and the one count of second degree criminal possession of a weapon, and fifteen years to life on the one count of third degree criminal possession of a weapon, all the sentences to run concurrently. (S.9.)
Briggs' Direct State Appeal
On appeal to the First Department, Briggs argued that the trial court erred by finding there was probable cause to arrest him, and by denying his motion to suppress evidence obtained pursuant to his arrest; according to Briggs, the gun and money recovered, the statements made to police, and Barton's identification should have been suppressed as "fruit of the poisonous tree." (Ex. A: Briggs 1st Dep't Br. at 20-26.) Briggs also argued that his sentence was excessive and should be reduced in the interest of justice. (Id. at 27-28.)
On August 23, 2001, the First Department unanimously affirmed:
The hearing court properly denied defendant's suppression motion. A citizen informant, who the police observed chasing two men on bicycles, told the officers that the men on the bicycles had robbed a store at a particular location. This information provided the police with reasonable suspicion that defendant was involved in the commission of a crime and was a sufficient predicate for a forcible stop and detention.
After following the informant to the entrance of a park, where the informant pointed out defendant and the codefendant as the robbers, the police got out of their van and walked into the park. Defendant and the codefendant glanced at the officers, jumped on their bicycles and fled in opposite directions, further enhancing the officers' suspicion that defendant was engaged in criminal activity. Moreover, given the information provided by the informant that a robbery was committed, the officers were justified in believing that the suspects were armed, and were entitled to take precautions to ensure their safety. That the officer approached defendant with his gun drawn does not transform an otherwise lawful stop into an arrest. Upon stopping defendant and the codefendant, a protective frisk was justified. The frisk yielded a gun from the codefendant and a large sum of money from defendant, which provided the officers with probable cause to arrest them.
Since the search and subsequent arrest were lawful, the physical evidence, statements, and identification testimony were admissible at trial.
We perceive no basis for reduction of sentence.
People v. Briggs, 286 A.D.2d 270, 270, 729 N.Y.S.2d 138, 139 (1st Dep't 2001) (citations omitted). The New York Court of Appeals denied leave to appeal on October 29, 2001. People v. Briggs, 97 N.Y.2d 639, 735 N.Y.S.2d 496 (2001).
On November 27, 2002, Briggs filed a pro se motion pursuant to C.P.L. § 440.10(1)(h) to vacate the judgment, asserting ineffective assistance of counsel before the grand jury. (Ex. F: Briggs C.P.L. § 440 Motion.) The motion was denied on January 6, 2003 (Ex. H), and on March 20, 2003, the First Department denied leave to appeal (Ex. I).
Briggs' Federal Habeas Corpus Petition
Briggs' timely pro se habeas corpus petition, received by the Pro Se office on November 22, 2002, raises the same claims that Briggs' counsel raised before the First Department:
(1) the trial court erred by finding there was probable cause to arrest him, and by denying his motion to suppress evidence obtained pursuant to his unlawful arrest (Dkt. No. 1: Pet. ¶¶ 12(A)-(B); and (2) his sentence is excessive and should be reduced in the interest of justice (Pet. ¶¶ 12(C).)ANALYSIS I. UNDER STONE v. POWELL, BRIGGS' CLAIM THAT HIS STATEMENTS, THE PHYSICAL EVIDENCE RECOVERED, AND THE WITNESS IDENTIFICATION WERE FRUITS OF AN UNLAWFUL ARREST CANNOT PROVIDE A BASIS FOR HABEAS RELIEF Briggs claims that his arrest was unlawful and that, therefore, his motion to suppress should have been granted. (Dkt. No. 1: Pet. ¶¶ 12(A)-(B).) He argues that there was no probable cause to arrest him because the arrest was made "[b]ased upon Mr. Green's assumption that a crime took place and the Polices' [sic] lack of reasonable suspicion to believe that Petitioner did commit a crime." (Pet. ¶ 12(A).) According to Briggs, since there existed no probable cause for his arrest, the evidence introduced at trial — his post-arrest statements, the gun and money recovered, and Barton's identification of him — should have been suppressed. (Pet. ¶ 12(B).)
Briggs' Fourth Amendment claims must be assessed by reference to the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:
[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.
Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (fns. omitted).
Accord, e.g., Withrow v. Williams, 507 U.S. 680, 682-86, 113 S.Ct. 1745, 1748-50 (1993); McClesky v. Zant, 499 U.S. 467, 479, 111 S.Ct. 1454, 1462 (1991); Fowler v. Kelly, No. 95-2527, 104 F.3d 350 (table), 1996 WL 521454 at *3 (2d Cir. Sept. 16, 1996); Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir. 1992); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987).
The Second Circuit, sitting en banc, has concluded that Stone v. Powell permits federal habeas review of exclusionary rule contentions only in limited circumstances:
If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available. It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.
Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978).
Accord, e.g., Graham v. Costello, 299 F.3d 129, 133-34 (2d Cir. 2002); Branch v. McClellan, No. 96-2954, 234 F.3d 1261 (table), 2000 WL 1720934 at *3 (2d Cir. Nov. 17, 2000); Capellan v. Riley, 975 F.2d at 70; Aziz v. Warden of Clinton Correctional Facility, 92 Civ. 104, 1992 WL 249888 at *3 (S.D.N.Y. Sept. 23, 1992), aff'd, 993 F.2d 1533 (2d Cir.), cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993); Allah v. LeFevre, 623 F. Supp. 987, 990-92 (S.D.N.Y. 1985); see also, e.g., Smith v. Senkowski, No. 97 CV 1280, 1999 WL 138903 at *6 (E.D.N.Y. Mar. 10, 1999) (Petitioner claimed he was arrested without probable cause and that his pretrial statements therefore should have been suppressed. "A federal court is not permitted to judge the merits of the state court's decision. The Court need only find that the State's procedure for resolving Fourth Amendment claims is 'facially adequate' and that no unconscionable breakdown' of the process occurred in the petitioner's case. An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim.") (citing Capellan v. Riley, 975 F.2d at 71).
Here, Briggs litigated his Fourth Amendment claim at the pretrial suppression hearing and on direct appeal to the First Department. (See pages 2-7 above.) Thus, state corrective process was not only available but was employed for Briggs' Fourth Amendment claims, which therefore cannot support a petition for a writ of habeas corpus. See, e.g., Gandarilla v. Artuz, 322 F.3d 182, 185 (2d Cir. 2003) ("[T]he merits of a Fourth Amendment challenge are not reviewable in a federal habeas proceeding if a defendant has had a fair opportunity to litigate that question in State court . . ."); Graham v. Costello, 299 F.3d at 134 ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the [state] court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief."); Blagrove v. Mantello, No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at *2 (2d Cir. Sept. 24, 1996) (where defendant's " Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief" defendant's " Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts."); Capellan v. Riley, 975 F.2d at 70 n. 1 (noting that "the 'federal courts have approved New York's procedure for litigating Fourth Amendment claims. . . .'"); McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims).
See also, e.g., Montero v. Sabourin, 02 Civ. 8666, 2003 WL 21012072 at *5 (S.D.N.Y. May 5, 2003) ("[H]abeas review of Fourth Amendment claims that were, or could have been, previously litigated in state court are barred by Stone v. Powell. . . . It has long been acknowledged that New York provides adequate procedures under C.P.L. § 710 et seq., for litigating Fourth Amendment claims."); Ferron v. Goord, 255 F. Supp.2d 127, 130-31 (W.D.N.Y. 2003) ("The Second Circuit has noted that Stone requires only that the 'the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim.") (quoting Gates v. Henderson, 568 F.2d at 839); Baker v. Bennett, 235 F. Supp.2d 298, 307 (S.D.N.Y. 2002) ("The state court need only grant a petitioner 'an opportunity for full and fair litigation of a fourth amendment claim.'") (quoting Capellan v. Riley, 975 F.2d at 70); Fayton v. Goord, 01 Civ. 2912, 2001 WL 694573 at *1 (S.D.N.Y. June 18, 2001) ("Since this petition is based on a fully and fairly litigated Fourth Amendment claim . . . such relief cannot be granted."); Gumbs v. Kelly, 2000 WL 1172350 at *10 (New York's procedure for litigating Fourth Amendment claims provides full and fair opportunity to litigate claim); Hunter v. Greiner, 99 Civ. 4191, 2000 WL 245864 at *6 (S.D.N.Y. Mar. 3, 2000).
Briggs' claim that the police lacked probable cause to arrest him is a Fourth Amendment claim that is not cognizable on habeas review. E.g., Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986) (Even where state conceded that petitioner's arrest lacked probable cause, petitioner's claim that his post-arrest questioning was fruit of the illegal arrest was barred because New York "clearly provided" petitioner with "an opportunity fully and fairly to litigate" the Fourth Amendment claim.); Chavis v. Henderson, 638 F.2d 534, 538 (2d Cir. 1980) (Petitioner's claim "that his arrest was without probable cause and that therefore the identification evidence should have been excluded, was properly rejected by the district court. [Petitioner] made no showing . . . that he had been precluded from a full and fair opportunity to litigate this issue in the state courts. Under Stone v. Powell . . ., he may not urge the same grounds for federal habeas corpus relief."), cert. denied, 454 U.S. 842, 102 S.Ct. 152 (1981); Roberson v. McGinnis, 2000 WL 378029 at *5 (Under Stone v. Powell, the Court was precluded from reviewing petitioner's claim that his conviction was based on his confession and the identification testimony obtained as a result of his unlawful arrest. Petitioner had the opportunity to fully and fairly litigate this Fourth Amendment claim during his pretrial suppressing hearing and First Department appeal.); see, e.g., Pina v. Kuhlmann, 239 F. Supp.2d 285, 289 (E.D.N.Y. 2003) (Habeas review unavailable for petitioner's claim that since the police lacked probable cause to arrest him, his post-arrest statements should have been suppressed. "It is well settled that such claims are not cognizable for habeas corpus review where the State has provided a full and fair opportunity to litigate this issue."); Manning v. Strack, No. CV 99-3874, 2002 WL 31780175 at *4 (E.D.N. Y. Oct. 11, 2002) (Raggi, D.J.) ("Stone v. Powell prohibits habeas review of [petitioner's] Fourth Amendment claim" that "he was arrested without probable cause" and that his "identifications and . . . statements should have been suppressed as the fruits of this unlawful arrest." Petitioner "was afforded a full evidentiary hearing on his arrest challenge, as well as one appeal of right and one opportunity to move for leave to appeal."); Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612 at *10-11 (E.D.N.Y. Sept. 18, 2002) (Habeas claim barred where petitioner argued that he was arrested without probable cause and lineup identifications therefore should have been suppressed. Petitioner "cannot claim that the state lacked sufficient procedures for redress of his Fourth Amendment claims because the courts in this circuit have expressly WL 91620 at *4-5 (E.D.N.Y. Jan. 10, 2001) (Where petitioner "was not denied the opportunity to litigate his Fourth Amendment claims in the state courts, [the habeas court] will not consider" petitioner's claims "that his statements to the police and the station house identifications of him should have been suppressed as 'fruits' of an unlawful arrest. . . . made without probable cause."); Ortiz v. Artuz, 113 F. Supp.2d 327, 335-36 (E.D. N.Y. Sept. 8, 2000) ("Petitioner argue[d] that he was arrested without probable cause in violation of the Fourth Amendment and that his pretrial statement and the identification procedure should have been suppressed as the fruit of the illegal arrest." Because "[t]he hearing court conducted a reasoned inquiry into petitioner's claim and determined that there was probable cause for his arrest, and the Appellate Division affirmed on the merits. . . . petitioner's Fourth Amendment claim is unreviewable by this Court."), aff'd, No. 00-2713, 36 Fed. Appx. 1, 2002 WL 126131 (2d Cir. Jan. 28, 2002), cert. denied, 536 U.S. 909, 122 S.Ct. 2367 (2002).
See also, e.g., Dawson v. Donnelly, 111 F. Supp.2d 239, 247 (W.D.N.Y. 2000) (Where petitioner's habeas claim that "he was under arrest when he confessed and that there was no probable cause for his arrest" was also raised in a pretrial suppression motion and in his direct state appeal, the state courts gave petitioner "a full and fair opportunity to litigate the claim. Therefore, this Court is precluded from addressing it in the context of a Federal habeas proceeding, and the claim must be dismissed."); Senor v. Senkowski, No. 97-CV-4929, 1999 WL 689477 at *8 (E.D.N.Y. Aug. 31, 1999) (Habeas court cannot consider petitioner's claim that his "arrest violated the Fourth Amendment, and that the lineup identifications were fruit of that unlawful arrest."); Joyner v. Leonardo, 99 Civ. 1275, 1999 WL 608774 at *3-4 (S.D.N.Y. Aug. 12, 1999) (Petitioner's claim that the police lacked probable cause to arrest him and that his subsequent identifications should be suppressed was "rejected under the doctrine established by the Supreme Court in Stone v. Powell . . ."); France v. Artuz, No. 98-CV-3850, 1999 WL 1251817 at *6 (E.D.N.Y. Dec. 17, 1999) (Where petitioner's habeas claim that his statements should be suppressed because he was arrested without probable cause was addressed during a pretrial suppression hearing, his claim was denied "[b]ecause petitioner was given a full and fair opportunity in the state courts to litigate this Fourth Amendment issue . . ."); Quinones v. Keane, 97 Civ. 3173, 1998 WL 851583 at *4-5 (S.D.N.Y. Dec. 7, 1998) (Habeas court barred from considering petitioner's claim that his statements should be suppressed because he "was detained without probable cause when he gave the statements."); Maldonado v. Giambrum, 98 Civ. 0058, 1998 WL 841488 at *2 (S.D.N.Y. Dec. 3, 1998) (Petitioner "claim[ed] that the police did not have probable cause to place him under arrest and, for that reason, the evidence acquired after the arrest should not have been admitted at his trial." Because petitioner was "afforded an adequate opportunity to address this fourth amendment claim in the state court proceedings. . . . [the habeas court] need not consider [petitioner's] claim."); Sansalone v. Kuhlmann, 96 Civ. 9231, 1998 WL 804693 at *1 (S.D.N.Y. Nov. 16, 1998) (Parker, D.J.) (Petitioner's "claim, alleging that a lack of probable cause for his arrest warranted suppression of . . . identification testimony . . . [is] precluded from review here because the issues were fully and fairly litigated both in pre-trial hearings and on direct review."); Moreno v. Kelly, 95 Civ. 1546, 1997 WL 109526 at *8 (S.D.N.Y. Mar. 11, 1997) (Where petitioner alleged that his arrest was not based on probable cause and "that all post-arrest identifications should therefore be suppressed as the fruits of an unconstitutional arrest, "petitioner's claim was "not a basis for federal habeas relief." Because the trial court held a combined identification, suppression, and probable cause hearing, which was reviewed on direct appeal, petitioner "received a 'full and fair' opportunity to litigate his Fourth Amendment claim in the state courts and this [habeas] court has no authority to revisit the issue." Petitioner's "contention that the trial court's pre-trial determination was incorrect does not entitle him to federal habeas review."); Burton v. Senkowski, No. CV-94-3836, 1995 WL 669908 at *4 (E.D.N.Y. Nov. 5, 1995) ("[Stone v.] Powell and its progeny" barred review of petitioner's claims that his arrest lacked probable cause and that his line-up identification should have been suppressed as fruit of this unlawful arrest.).
II. BRIGGS' EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF
Briggs claims that his sentence was excessive — that because there was no probable cause for his arrest, and because the evidence obtained from his unlawful arrest should have been suppressed, "this Honorable Court [should] use [its] authority and reduce his sentence in the Interest of Justice." (Dkt. No. 1: Pet. ¶ 12(C).)Briggs' excessive sentence claim does not provide a basis for federal habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Accord, e.g., Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, No. 99-CV-8015, 2003 WL 442267 at *7-8 (E.D.N.Y. Feb. 25, 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003); Pressley v. Bennett, 235 F. Supp.2d 349, 368 (S.D.N.Y. 2003); Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J. Peck, M.J.); Schreter v. Artuz, 225 F. Supp.2d 249, 258 (E.D.N.Y. 2002); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.); Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v. Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945, 949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745, 753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).
Briggs was convicted of three counts of first degree robbery, three counts of second degree robbery, and one count each of second and third degree criminal possession of a weapon. (S. 9.) Without objection, the trial court adjudicated Briggs a predicate violent felony offender, Penal Law § 70.08(1). (S. 4.)
The Penal Law provides:
2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent violent felony offender the court must impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment. The minimum period of imprisonment under such sentence must be in accordance with subdivision three of this section.
3. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate life sentence for a persistent violent felony offender must be fixed by the court as follows:
(a) For a class B felony, the minimum period must be at least twenty years and must not exceed twenty-five years;
(b) For a class C felony, the minimum period must be at least sixteen years and must not exceed twenty-five years;
(c) For a class D felony, the minimum period must be at least twelve years and must not exceed twenty-five years.
First degree robbery is a class B felony. Penal Law § 160. 15. As a predicate violent felony offender, Briggs could have been sentenced to twenty-five years to life on each of his three first degree robbery convictions, and thus his sentence of twenty three years to life is within the range prescribed by state law. Second degree robbery and second degree criminal possession of a weapon are both class C felonies. Penal Law §§ 160.10, 265.03. Briggs' sentence of twenty years to life on each of these counts was within the statutory range (of twenty-five years to life) for these offenses.
Third degree criminal possession of a weapon is a class D felony. Penal Law § 265.02. Here, too, Briggs could have been sentenced to twenty-five years to life, and so his sentence of fifteen years to life was within the statutory range.
As Briggs' actual sentence is within the statutory range (of twenty-five years to life), it is not reviewable by this Court. See, e.g., Priester v. Strack, 98 Civ. 7960, 2001 WL 980563 at *7 (S.D.N.Y. Aug. 23, 2001) ("[P]etitioner was sentenced as a second violent felony offender because of his prior convictions in 1988 for Robbery in the Third Degree and Attempted Robbery in the Second Degree. The maximum term of imprisonment for a second violent felony offender who has committed a class B felony must be at least twelve and not more than twenty-five years. See N.Y. Penal Law § 70.08(2). Petitioner's sentence, nine to eighteen years in prison . . ., is above the minimum sentence he could have received, but is below the maximum prescribed by state law.
Since the sentence imposed is within the range prescribed by state law, the Court finds that no federal constitutional issue is presented by this claim.") (fn. omitted); Rivera v. Keane, 99 Civ. 1272, 1999 WL 816178 at *1, 6-7 (S.D.N.Y. Oct. 13, 1999) ("Petitioner's sentence of ten years to life imprisonment [for first degree robbery] does not exceed the range specified by the applicable state statute. Accordingly, if petitioner was properly sentenced as a persistent violent felony offender, his claim is not reviewable by this Court. See Penal Law § 70.08. . . . A review of the record and the applicable law reveals that petitioner was properly sentenced as a persistent violent felony offender. . . . Petitioner was therefore properly sentenced and his claim for habeas relief is without merit."); Costello v. Attorney General of State of New York, 98 Civ. 0542, 1999 WL 689335 at *1, 3 (S.D.N.Y. Aug. 31, 1999) (Petitioner's claim that sentence of ten years to life as a persistent violent felony offender convicted of attempted burglary in the second degree was excessive was not cognizable on federal habeas review, as the "sentence fell within the limits set by the New York legislature for felonies committed by persistent violent felony offenders, see N.Y. Penal Law § 70.08(3)(c) . . ."); see also Wilson v. Senkowski, 2003 WL 21031975 at *13 (cases cited therein).
CONCLUSION
For the reasons set forth above, Briggs' habeas petition should be denied and a certificate of appealability should not issue.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, 500 Pearl Street, Room 1050, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).