Opinion
Civil Action 19 Civ. 7763 (ALC) (SLC)
02-25-2022
MIKE ELDRIDGE, Petitioner, v. SUPERINTENDENT OF GREENHAVEN CORRECTIONAL FACILITY, Respondent.
TO THE HONORABLE ANDREW L. CARTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Petitioner Mike Eldridge (“Eldridge”), an inmate at Greenhaven Correctional Facility in Stormville, New York, filed a pro se petition for a writ of habeas corpus (the “Petition”) pursuant to 28 U.S.C. § 2254, following his 2012 conviction for first degree attempted robbery after a guilty plea in New York State Supreme Court. (See ECF Nos. 1 at 1-2; 9-3 at 9). The state court sentenced him to fourteen years to life in prison. (ECF Nos. 1 at 1; 9-3 at 9, 11).
Eldridge raises two claims in his Petition: (i) that he was subjected to an unlawful stop and frisk in violation of the Fourth Amendment; and (ii) that his waiver of his right to appeal was not knowing and voluntary. (ECF No. 1 at 5, 7). Respondent opposes on the grounds that Eldridge's Fourth Amendment claim is barred on independent and adequate state grounds, and was fully and fairly litigated in state court. (ECF No. 9-1 at 10-14). Respondent also argues that Eldridge failed to exhaust his waiver claim, which is not cognizable on federal habeas corpus review, and, in any event, lacks merit. (Id. at 15-16).
For the reasons set forth below, the Court respectfully recommends that the Petition be DENIED in its entirety.
II. BACKGROUND
A. Factual Background
At approximately 7:41 p.m. on August 27, 2010, Eldridge followed the victim into an elevator at 470 Convent Avenue, brandished a firearm, and took the victim's iPhone. (ECF No. 93 at 19, 25).
Two plain-clothed police officers from the New York City Police Department's 30th Precinct, Officers Brian Dennis and Jonathan Korabel, responded to the robbery in an unmarked car. (ECF Nos. 9-3 at 29; 9-4 at 6, 67). The initial description of the suspect was a Black male five feet, eight inches tall, with no specific clothing identified, although a description a few minutes later stated that the suspect was five feet, six inches tall. (ECF No. 9-4 at 7, 21). The victim told the lieutenant first on the scene that the stolen iPhone contained “a tracking software” that the victim could use to track the iPhone. (Id. at 8). Subsequent radio calls directed Officers Dennis and Korabel to several locations in the Bronx, including 149th Street and Bergen, where Officer Dennis first noticed a person who later turned out to be Eldridge. (Id. at 9-10). Officer Dennis then observed, using the victim's tracking software, that the iPhone was at the intersection of 156th Street and Third Avenue, where another team had stopped a vehicle occupied by a Black man, who “was not in fact the individual that had committed the robbery.” (Id. at 10-12). At some point, the victim told Officer Dennis that the suspect was “a bigger guy” wearing blue pants and a white shirt. (Id. at 31).
Believing the iPhone to be on Bergen Avenue, Officer Dennis proceeded north to the intersection of Bergen and 157th Street, where he again saw the individual later identified as Eldridge. (ECF No. 9-4 at 14). At the intersection of 163d Street and Third Avenue, the victim told Officer Dennis, “the phone is right here,” and Officer Dennis observed across the intersection the individual later identified as Eldridge. (Id. at 14). The victim stated, “[T]hat might be him,” and Officer Dennis told Officer Korabel, “[T]hat is the third time I seen [sic] this guy.” (Id. at 15, 37). Officer Dennis “made eye contact with” Eldridge, who “ran into a church that was to the left of him” shouting, “the police, the police.” (Id. at 15, 40). Officers Dennis and Korabel, with their shields out, entered the church behind Eldridge, and, on seeing that a funeral service was underway, “pushed” Eldridge “from the sanctuary into a smaller vestibule.” (Id. at 16, 41-42). After the arrest, Officer Dennis stated that Eldridge said, “Leave me alone,” and flailed his arms to avoid being arrested. (ECF No. 9-3 at 19, 25). Eldridge was holding a black plastic bag, which Officer Dennis “knocked out of his hand” and then searched Eldridge, recovering “what appeared to be a firearm [the “Pistol”] from his waistband.” (ECF No. 9-4 at 16, 70). A subsequent ballistics report found that the Pistol was “not capable of firing a live cartridge and therefore [was] not a firearm,” but rather “a replica of the Beretta 92F series semi-automatic pistol.” (Id. at 30). Officer Dennis handcuffed Eldridge and brought him outside the church, where he asked the victim “if anybody looked familiar to him,” in response to which the victim “indicated that that was the person.” (ECF No. 9-4 at 16).
The iPhone was later recovered from a bodega at the intersection of West 163rd Street and Third Avenue. (Id. at 18). After the arrest, Officer Dennis learned that Eldridge had sold the iPhone “at that location” before the arrest. (Id. at 18-19). The bodega was approximately 200 feet from the location where Officer Dennis saw Eldridge for the third time, before he ran into the church. (Id. at 39).
B. Procedural History
1. The Indictment
On November 8, 2010, a state grand jury indicted Eldridge on one count of second-degree robbery in violation of New York Penal Law § 160.10(2)(b), alleging that on August 27, 2010, he forcibly stole property from a person, during which he displayed what appeared to be a firearm. (ECF No. 9-3 at 16).
2. The Suppression Hearing
The state court initially denied Eldridge's application for a suppression hearing, but after new defense counsel appeared for Eldridge and filed a supplemental application seeking suppression of, inter alia, the Pistol (the “Motion”), the state court held a suppression hearing. (ECF No. 9-3 at 42-52).
On November 3, 2011, the Honorable Laura Ward held a hearing on the Motion (the “Suppression Hearing”). (ECF Nos. 9-3 at 9, 22; 9-4 at 1-51).The District Attorney called only Officer Dennis as a witness. (ECF No. 9-4 at 3). After Officer Dennis testified to the sequence of events set forth above, Justice Ward asked him why he searched Eldridge in the church. (Id. at 42). Officer Dennis responded, “Based upon his actions and the fact he was yelling police and he had a bag and when I went up behind him he started struggling with us as soon as we got into the vestibule. So that's why I searched him, because he was struggling to get away from us. I patted him down for my safety.” (Id. at 42).
The Hearing was referred to, as is custom in New York state court, as a “Mapp/Dunaway Hearing.” (ECF Nos. 9-3 at 42-43; 9-4 at 2-3).
After hearing argument from Eldridge and his counsel, as well as the Assistant District Attorney, Justice Ward found that:
Based on a combination of information starting with the use of the cell phone app to track the stolen iPhone, seeing the defendant at least two times prior to the third and final time when they stopped, always in the vicinity where the cell phone allegedly was pursuant to the app, the defendant then fleeing, the concern that a gun was involved, . . . it was clear that the officers had probable cause to stop the defendant to question him, to frisk him for their own safety and then to bring [him] back for a confirmatory identification.(ECF No. 9-4 at 70-71). Justice Ward found that probable cause existed for the arrest “and that the stop and frisk was appropriate,” and therefore denied the Motion. (Id. at 71).
3. The Guilty Plea
On July 13, 2011, the District Attorney filed a statement informing the court that Eldridge had previously been convicted of two or more predicate violent felony convictions under N.Y. Penal Law § 70.04(1)(b). (ECF No. 9-3 at 12-13).
On November 7, 2011, just before jury selection was to start, Eldridge asked to address the court, specifically, asking for leniency in his sentence. (ECF No. 9-4 at 83-85). Justice Bartley noted that Eldridge appeared to “fall under the mandatory persistent statute,” which called for a prison term of 16 years to life. (Id. at 87). A few minutes later, the District Attorney agreed to offer and Eldridge agreed to accept a plea agreement providing for a prison term of fourteen years to life. (Id. at 90-91). Justice Bartley agreed to “go along with that” but would “require a Waiver of Appeal with respect to any plea that's taken.” (Id. at 91).
Eldridge and his counsel then signed a written “Waiver of Right to Appeal” dated November 7, 2011. (ECF No. 9-3 at 18 (the “Waiver”)). In the Waiver, Eldridge agreed:
I hereby waive my right to appeal from this judgment of conviction. I understand that this waiver does not apply to the following four issues: a constitutional speedy trial claim; a challenge to the legality of the sentence promised by the judge; an issue as to my competency to stand trial; or the voluntariness of this waiver. However, I understand and agree that I hereby give up all other appellate claims. I execute and sign this waiver knowingly and voluntarily after being advised by the Court and after consulting with my attorney, Eric Orzick, standing beside me. I have had a full opportunity to discuss these matters with my attorney and any questions I may have had have been answered to my satisfaction. I have agreed to give up my appellate rights because I am receiving a favorable plea and sentence agreement.(ECF No. 9-3 at 18; see ECF No. 9-3 at 24 (Justice Bartley noting that Eldridge waived right to appeal)).
Justice Bartley then proceeded with the plea colloquy (the “Plea Hearing”), first confirming that Eldridge wished to withdraw his prior not guilty plea and enter a plea of guilty to the single count of second-degree attempted robbery. (ECF No. 9-4 at 92). Eldridge acknowledged that he had sufficient time to discuss his guilty plea with his counsel, and understood the proceedings. (Id. at 93). Justice Bartley then enumerated “certain valuable rights” that Eldridge was giving up, including the rights to remain silent, seek suppression of evidence, be tried before a jury, be represented by counsel, confront witnesses, testify at trial or remain silent, call witnesses, and have each element of the charge be found beyond a reasonable doubt by a unanimous jury of twelve. (Id. at 93-95). Eldridge confirmed that he understood he was giving up each of those rights. (Id. at 95). After Eldridge stated that his counsel had “been twisting [his] arm in taking time,” Justice Bartley questioned Eldridge at length to confirm that no one was “forcing” him or “pressuring” him to take the plea offer, and that he was pleading guilty of his "[o]wn free will.” (Id. at 96-102).
Justice Bartley then informed Eldridge that “[a]s a condition of this plea” he was “waiving or giving up that right to appeal.” (ECF No. 9-4 at 102). Eldridge stated that he understood, and acknowledged that “no one ha[d] forced [him] to do that.” (Id. at 103). Justice Bartley then agreed to accept Eldridge's plea. (Id. at 104).
4. The Sentencing
On January 26, 2012, Justice Bartley sentenced Eldridge to fourteen years to life in prison, pursuant to the plea agreement. (ECF Nos. 9-3 at 9, 11, 15; 9-4 at 110).
5. The State Court Appeal
On February 29, 2012, Eldridge, through counsel, filed a notice of appeal. (ECF No. 9-3 at 7-8). Eldridge raised two issues: (i) the stop and frisk violated the Fourth Amendment because the police lacked reasonable suspicion and failed to provide credible evidence at the Hearing; and (ii) his sentence was excessive. (Id. at 73). In his appellate brief, Eldridge raised the additional argument that his appeal waiver was invalid under New York law. (Id. at 104-110).
On May 24, 2018, the Appellate Division, First Department (the “Appellate Division”) affirmed Eldridge's conviction. (ECF No. 9-3 at 188-89). People v. Eldridge, 161 A.D.3d 644 (1st Dep't 2018). The Appellate Division found that Eldridge “made a valid waiver of his right to appeal,” noting that the plea colloquy, which “was supplemented by an appropriate written waiver,” “avoided conflating the right to appeal with the rights forfeited by pleading guilty,” and thus “met or exceeded the minimum standards for such a colloquy.” Id. at 644. The Appellate Division then held that Eldridge's “valid waiver foreclose[d] review of [his] suppression and excessive sentence claims[,]” and, in any event, that the Motion was “properly denied.” Id.
On August 24, 2018, the New York Court of Appeals denied Eldridge's application for leave to appeal. (ECF No. 9-3 at 205).
C. Federal Habeas Corpus Petition
On August 16, 2019, Eldridge timely filed the Petition, asserting the Fourth Amendment and appeal waiver claims. (ECF No. 1). Respondent filed an answer and a memorandum of law, opposing the Petition on the grounds that the Fourth Amendment claim was barred on independent and adequate state law grounds and by Stone v. Powell, 428 U.S. 465 (1976), and that the appeal waiver claim was procedurally defaulted, not cognizable, and meritless. (ECF Nos. 9; 9-1). On November 20, 2019, Eldridge filed a reply. (ECF No. 10).
III. DISCUSSION
A. Legal Standards
1. Exhaustion
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims in federal constitutional terms to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted).
A court may excuse procedural default “if the petitioner demonstrates either cause for the default and actual prejudice from the alleged violation of federal law, or that the failure to consider the claims ‘will result in a fundamental miscarriage of justice.'” Acosta v. Giambruno, 326 F.Supp.2d 513, 520 (S.D.N.Y. 2004) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). In this context, “cause” means “‘some objective factor external to the defense [that] impeded counsel's efforts' to raise the claim in state court.” Id. (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)). “Actual prejudice” requires the petitioner to show “‘actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Id. (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A miscarriage of justice occurs ‘in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]"' Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To establish actual innocence, petitioner must demonstrate that ‘in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.” Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (internal citations omitted); see Bousley v. United States, 523 U.S. 614, 623-24 (1998) (“‘Actual innocence' means factual innocence, not mere legal insufficiency”).
In addition, under the doctrine of adequate and independent state grounds, a state habeas petitioner's claim is barred “if the state judgment can be sustained on state law grounds that are independent of the federal questions raised and that are adequate to support the judgment.” Acosta, 326 F.Supp.2d at 520. When the highest state court that rendered a judgment in the case “clearly and expressly states that its judgment rests on a state procedural bar,” courts presume that the procedural bar constitutes independent and adequate state grounds to deny habeas relief. Harris v. Reed, 489 U.S. 255, 263 (1989) (internal citations omitted); see Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (finding habeas claim barred where Appellate Division held that review of claim was procedurally barred).
2. Standard of review
Where the state court has reached the merits of a claim, this Court must apply a “highly deferential” standard in reviewing that claim in a habeas corpus proceeding. 28 U.S.C. § 2254(d); Renico v. Lett, 559 U.S. 766, 773 (2010); Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A claim has been “adjudicated on the merits” when the state court ruled on the substance of the claim itself, rather than on a procedural or other ground. See Bell v. Miller, 500 F.3d 149, 154-55 (2d Cir. 2007); Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (noting that “adjudicated on the merits” means “a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced”).
The standard of review set forth in Section 2254(d) provides, in relevant part, that a court may grant a writ of habeas corpus on a claim that has been previously adjudicated on the merits by a state court only if the state adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Under section 2254(d)(1), a state court decision is “contrary to” clearly established federal law where the state court either applies a rule that contradicts Supreme Court precedent or confronts a case with materially similar facts to a Supreme Court case and arrives at a different result. See Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (quoting Williams, 529 U.S. at 41213). An “unreasonable application” of clearly established federal law occurs when the state court identifies and applies the correct governing legal principle, but its application was “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 73-76 (2003) (citing Williams, 529 U.S. at 409). Under section 2254(d)(2), the Court must consider the reasonableness of the decision in light of the evidence presented at the proceeding under review. See Cardoza v. Rock, 731 F.3d 169, 182 (2d Cir. 2013). Even if the standard under Section 2254(d)(2) is met, the petitioner “still bears the ultimate burden of proving by a preponderance of the evidence that his constitutional rights have been violated.” Id. at 178. (internal quotation and citation omitted). “The question under the AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
3. Habeas corpus review of guilty pleas and appeal waivers
A criminal defendant's guilty plea “ordinarily preclude[s] [him] from raising any constitutional claim arising out of the events that precede the plea.” De Vonish v. Walsh, No. 08 Civ. 10845 (WHP) (HBP), 2011 WL 6211134, at *3 (S.D.N.Y. Oct. 6, 2011), adopted by, 2011 WL 6224576 (S.D.N.Y. Dec. 14, 2011). The Supreme Court has explained that
[a] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.Tollett v. Henderson, 411 U.S. 258, 267 (1973); see United States v. Gregg, 463 F.3d 160, 164 (2d Cir. 2006) (explaining that “a guilty plea does not ‘waive' constitutional challenges so much as it conclusively resolves the question of factual guilt supporting the conviction, thereby rendering any antecedent constitutional violation bearing on factual guilt a non-issue”); Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991) (“Generally a knowing and voluntary guilty plea precludes federal habeas corpus review of claims relating to constitutional rights at issue prior to the entry of the plea.”). Thus, a petitioner who has pled guilty to a state criminal charge “‘is not entitled to the vacating of his conviction on the basis of claimed antecedent constitutional infirmities . . . even assuming there is some factual basis for these allegations.'” Amparo v. Henderson, No. Civ. 86-4310 (RJD), 1989 WL 126831, at *1-2 (E.D.N.Y. Oct. 18, 1989) (quoting Isaraphanich v. United States, 632 F.Supp. 1531, 1533 (S.D.N.Y. 1986)). Accordingly, following a guilty plea, “[t]he only proper focus of a federal habeas inquiry . . . is the voluntary and intelligent character of the guilty plea.” Id.
“New York provides a limited exception to the general rule that a guilty plea precludes the assertion of constitutional violations that precede the plea.” De Vonish, 2011 WL 6211134, at *4. New York's statute, N.Y. Criminal Procedure Law § 710.70(2), provides that “[a]n order finally denying a motion to suppress evidence may be reviewed upon appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment is entered upon a plea of guilty.” The statute preserves the defendant's right to challenge an adverse decision on a suppression motion on direct appeal and in a federal habeas corpus petition, notwithstanding the guilty plea. Lefkowitz v. Newsome, 420 U.S. 283, 293 (1975).
“This statutory right to appeal, however, can be waived.” Mapp v. Phillip, No. 04-CV-1889 (JG), 2005 WL 1541044, at *5 (E.D.N.Y. June 29, 2005); see Edmonds v. Superintendent Mohawk Corr. Fac., No. 08 Civ. 7730 (JSR) (RLE), 2011 WL 744879, at *4 (S.D.N.Y. Jan. 31, 2011) (“A defendant may waive his right to appeal from a judgment of conviction, or some part thereof.”), adopted by, 2011 WL 744862 (S.D.N.Y. Mar. 1, 2011). A defendant who “explicitly agrees to forfeit” the right to appeal as part of his plea is deemed to have waived the right to appeal. De Vonish, 2011 WL 6211134, at *4. “Waiver of the right to appeal an adverse suppression ruling in state court also waives the opportunity for federal habeas review of that ruling.” Mapp, 2005 WL 1541044, at *5.
“For a waiver to be enforceable, the record must reflect that the defendant, voluntarily, intelligently, and knowingly waived his rights.” Edmonds, 2011 WL 744879, at *4. “For the waiver to be effective, a defendant must be informed of the nature of the right and must evince a full understanding of the consequences of the waiver.” Id. A trial court “need not employ specific language when apprising a defendant pleading guilty of the individual rights to be waived.” Id.
B. Analysis
1. Fourth Amendment Claim
a. Adequate and Independent State Ground
Eldridge's Fourth Amendment claim is procedurally barred because the Appellate Division relied on a state procedural rule in denying that claim on direct appeal. First, the Appellate Division found that Eldridge's waiver of his right to appeal was valid and “foreclose[d] review” of his suppression claim. Eldridge, 161 A.D.3d at 645.“Courts in this circuit have consistently held that a petitioner's waiver of the right to appeal is an adequate and independent state ground for denying habeas corpus relief.” Alvarez v. Yelich, No. 09-CV-1343 (SJF), 2012 WL 2952412, at *5 (E.D.N.Y. July 12, 2012) (collecting cases); see Guaman v. Racette, No. 14 Civ. 5160 (CS) (LMS), 2016 WL 901304, at *5 (S.D.N.Y. Feb. 2, 2016) (quoting Alvarez and finding that valid appeal waiver acted as procedural bar); Burvick v. Brown, No. 10-CV-5597 (JFB), 2013 WL 3441176, at *6 (E.D.N.Y. July 9, 2013) (“Federal courts have held that New York law allowing defendants to waive their right to appeal as part of a plea agreement, as long as the waiver is made voluntarily and is knowing and intelligent, is an adequate and independent state ground that bars habeas review . . .”).
Eldridge's appeal waiver claim fails for the reasons set forth in § III.B.2, infra.
Second, the Appellate Division's enforcement of the appeal waiver is an “adequate” state procedural bar because it is “based on a rule that is firmly established and regularly followed by the state in question.” Monroe v. Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006) (internal citations omitted). Pursuant to a New York statute, “an order denying a motion to suppress evidence may be reviewed upon appeal from an ensuing judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.” Junior v. Warden, No. 13 Civ. 9164 (NSR) (PED), 2015 WL 1931229, at *11 (S.D.N.Y. Apr. 28, 2015) (citing N.Y. Crim. Pr. L. § 710.70). New York courts will enforce a waiver of the right to appeal a suppression ruling as part of a plea agreement, provided the “plea is voluntarily entered into, with full comprehension on defendant's part of both the plea and the associated condition[.]” Id.; see People v. Kemp, 94 N.Y.2d 831 (2d Dep't 1999); People v. Williams, 36 N.Y.2d 829, 829-830 (2d Dep't 1979).
Third, the circumstances of Eldridge's case support application of the procedural bar. See Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003). After Justice Ward denied the Motion, Eldridge accepted the plea agreement, pursuant to which he waived the right to appeal, including the right to challenge the state court's pre-trial decisions, both in writing and on the record during the plea colloquy with Justice Bartley. (ECF Nos. 9-3 at 18, 24; 9-4 at 102-104). Eldridge then presented his challenge to the voluntariness of his waiver to the Appellate Division, which held both that his appeal waiver was valid and that the waiver expressly precluded review of Justice Ward's suppression ruling. Eldridge, 161 A.D.3d at 644-45. Accordingly, “[b]ecause New York State has firmly established and regularly followed the rule that plea agreements containing waivers of appeal rights will be enforced,” and Eldridge's waiver was valid under New York law, that “waiver provides an independent and adequate state procedural bar upon which to deny habeas relief.” Junior, 2015 WL 1931229, at *12.
Finally, although Eldridge might seek to overcome this procedural bar by demonstrating cause for the procedural default and actual prejudice resulting from the alleged Fourth Amendment violation, or by showing that the failure to consider the claim will result in a fundamental miscarriage of justice, he has made no such showing in the Petition or the Reply. See Junior, 2015 WL 1931229, at *12; Guaman, 2016 WL 901304, at *5 (enforcing appeal waiver as procedural bar where petition had not shown cause, prejudice, or actual innocence).
b. Fully and Fairly Litigated
Respondent argues that Eldridge's Fourth Amendment claim “was fully and fairly litigated in state court,” such that review of that claim is barred by the doctrine in Stone v. Powell. (ECF No. 9-1 at 12). In Stone, the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” 428 U.S. at 481.
Construing Stone, the Second Circuit “has made clear that a [F]ourth [A]mendment claim may not be considered by a federal habeas corpus court if the state has provided an opportunity to fully and fairly litigate it.” McPhail v. Warden, Attica Corr. Fac., 707 F.2d 67, 69 (2d Cir. 1983) (citing Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977) (en banc)). In Gates, the Second Circuit further explained that “opportunity” means that the state must make available “a statutory mechanism” for suppression of evidence tainted by an unlawful search or seizure. Gates, 568 F.2d at 837. Under this precedent, a court may review a Fourth Amendment claim in a habeas corpus petition “in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged [F]ourth [A]mendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 80 (2d Cir. 1992) (citing Gates, 568 F.2d at 839).
Neither of these circumstances exist here. New York's statutory mechanism, N.Y. Criminal Procedure Law § 710.10 et seq., “complie[s] with th[e] requirement” to have a corrective procedure to address Fourth Amendment violations. McPhail, 707 F.2d at 69; see Capellan, 975 F.2d at 70 n.1 (noting that “the ‘federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. [] as being facially adequate'”) (quoting (Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y. 1989)). Eldridge employed that procedure, raising a Fourth Amendment challenge to Officer Dennis's search both in the trial court and on appeal. After a lengthy hearing, Justice Ward made factual findings on which she based the conclusion that the officers had “probable cause to stop [Eldridge] to question him, to frisk him for their own safety and then to bring [him] back for a confirmatory identification.” (ECF No. 9-4 at 70-71). Notwithstanding Eldridge's appeal waiver, the Appellate Division still considered Eldridge's Fourth Amendment claim and affirmed the denial of the Motion. Eldridge, 161 A.D.2d at 644. Thus, no “unconscionable breakdown” occurred in the process as would violate Eldridge's constitutional rights and warrant federal habeas corpus review. Capellan, 975 F.2d at 71-72 (finding that petitioner's disagreement with Appellate Division's decision affirming denial of suppression motion did not represent an “unconscionable breakdown” as would warrant federal habeas corpus review).
* * *
Accordingly, I respectfully recommend that Eldridge's Fourth Amendment claim be denied.
2. Appeal Waiver Claim
Eldridge's second claim in his Petition alleges that the trial court “failed to adequately ascertain that [he] understood the nature of the right to appeal, the consequences of waiving that right, or that the right to appeal was separate and distinct from the rights forfeited upon pleading guilty.” (ECF No. 1 at 7). Eldridge further asserts that the trial court “never explained” the Waiver, which, he contends may not have been signed until his sentencing. (Id.)
Respondent argues first that Eldridge's appeal waiver claim is unexhausted and procedurally defaulted because he “did not present the claim in federal constitutional claims in state court.” (ECF No. 9-1 at 15). Second, Respondent argues that “the claim is not cognizable on federal habeas review.” (Id.) Third, Respondent argues that the claim is meritless. (Id. at 16).
The Court finds that Eldridge's appeal waiver claim fails for three reasons. First, as noted above (see § III.A.1, supra), Eldridge was required to “fairly present[] to the state courts in federal constitutional terms” this claim for this Court to consider it. See Gilbo v. Artus, No. 9:10-CV-455 (NAM), 2013 WL 160270, at *15 (N.D.N.Y. Jan. 15, 2013). Although his brief to the Appellate Division contained a citation to the Fifth and Fourteenth Amendments, Eldridge framed his challenge to his appeal waiver not as a violation of his federal constitutional rights but rather as a violation of New York law, relying on precedent from New York courts to show that his waiver was deficient. (ECF No. 9-3 at 104-10). Eldridge has not shown cause for failing to raise federal constitutional arguments in support of his appeal waiver claim, nor has he shown (or even alleged) that failure to consider his appeal waiver claim would be a miscarriage of justice. See Acosta, 326 F.Supp.2d at 520.
Second, although New York state law requires the trial court to establish on the record “‘that the defendant understood the right to appeal is separate and distinct from those rights automatically forfeited upon a plea of guilty' . . . federal habeas relief is not available to redress mere errors of state law.” Harris v. Sheahan, No. 13-CV-950 (MAT), 2017 WL 604441, at *4 (W.D.N.Y. Feb. 15, 2017) (quoting People v. Lopez, 6 N.Y.3d 248, 256 (2006)). Eldridge does not cite, nor is the Court aware of, “any federal precedent standing for the proposition that the trial court must employ specific language when apprising a defendant pleading guilty of the individual rights relinquished.” Id.; see Edmonds, 2011 WL 744879, at *4-5 (“The trial court [] need not employ specific language when apprising a defendant pleading guilty of the individual rights to be waived”). Eldridge has therefore failed to allege a federal constitutional violation cognizable in a federal habeas corpus proceeding. See Nicholas v. Smith, No. 02 Civ. 6411 (ARR), 2007 WL 1213417, at *10-11 (E.D.N.Y. Apr. 24, 2007) (“[W]hile petitioner's argument that the appeal waiver was invalid may have some basis in New York law, petitioner has not demonstrated that the enforcement of the waiver denied him of any rights under the federal Constitution[.]”).
Finally, were Eldridge's claim cognizable, the Court finds that his appeal waiver was valid. Under New York law, a criminal defendant may waive the right to appeal “as a part of a plea agreement when the waiver is made voluntarily, knowingly, and intelligently.” Harris, 2017 WL 604441, at *4 (citing, inter alia, People v. Bradshaw, 18 N.Y.3d 257 (2011)); see Williams, 36 N.Y.2d 829, 830 (1975). A waiver is effective when the defendant was “informed of the nature of the right and [] evidence[d] a full understanding of the consequences of the waiver.” Harris, 2017 WL 604441, at *4.
Here, Eldridge's counsel, with Eldridge present, informed the court that Eldridge had “authorize[d] him to withdraw his previously entered plea of guilty, and enter a plea of guilty to attempted robbery in the second degree in full satisfaction of the indictment before the [c]ourt, for a promised sentence of 14 years to life and a Waiver of Appeal.” (ECF No. 9-4 at 92). After Justice Bartley ascertained Eldridge's competence and understanding, reviewed the charge to which Eldridge was pleading and the rights he was giving up, and had an extended colloquy to confirm the voluntariness of Eldridge's plea, engaged in the following colloquy with Eldridge:
THE COURT: Now, ordinarily when a defendant is convicted or pleads guilty in a case, he has a right to appeal that conviction. As a condition of this plea, as I have indicated moments earlier, you are waiving or giving up that right to appeal. As I said, the right to appeal is ordinarily when a person is convicted, they have the right to appeal a case. If they can't afford an attorney, one will be provided for them. As part of this negotiated plea, you are giving up your right to appeal, do you understand what that means?
THE DEFENDANT: Yes.
THE COURT: And do you understand that's a condition of this plea, correct?
THE DEFENDANT: Yes.
THE COURT: And no one has forced you to do that, correct?
THE DEFENDANT: No.(ECF No. 9-4 at 102-103). Thus, although not required to do so, Justice Bartley informed Eldridge that “he was giving up a right normally obtained.” Edmonds, 2011 WL 744879, at *5. In addition, the Waiver, which Eldridge signed with his counsel standing beside him on November 7, 2011, the same day as the Plea Hearing, expressly carved out Eldridge's right to challenge his sentence, and therefore did not have the infirmity that has invalidated other waivers under New York law. See Nicholas, 2007 WL 1213417, at *11 (citing New York cases invalidating appeal waivers that failed to inform defendants of their right to challenge a sentence as excessive).
Based on this record, the Court finds that the Appellate Division's determination that Eldridge's appeal waiver was knowing and voluntary was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See Harris, 2017 WL 604441 at *5 (finding that appeal waiver under similar circumstances did not state a cognizable claim); Nicholas, 2007 WL 1213417, at *11 (holding that, even if the “argument that the appeal waiver was invalid may have some basis in New York law, petitioner has not demonstrated that the enforcement of the waiver denied him of any rights under the federal Constitution,” and therefore, “the state court's enforcement of the appeal waiver was not contrary to, nor an unreasonable application of, clearly established federal law[.]”).
* * *
For each of these reasons, I respectfully recommend that Eldridge's appeal waiver claim be denied.
IV.CONCLUSION
For the reasons set forth above, I respectfully recommend that Eldridge's Petition be DENIED in its entirety, and this action be DISMISSED.
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Carter.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Eldridge does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2.