Opinion
19cv00743 (AJN) (DF)
10-21-2021
THOMAS GRANT, Petitioner, v. PAUL M. GONYEA, Respondent.
HONORABLE ALISON J. NATHAN, U.S.D.J.
REPORT AND RECOMMENDATION
DEBRA FREEMAN United States Magistrate Judge.
Proceeding pro se, petitioner Thomas Grant (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state conviction upon a guilty plea to one count of Criminal Possession of a Controlled Substance in the Second Degree, in violation of N.Y. Penal Law § 220.18(1), and one count of Criminal Possession of a Weapon in the First Degree, in violation of N.Y. Penal Law § 265.04(2). As a result of his plea, Petitioner was sentenced to 10 years of imprisonment plus five years of post-release supervision on the weapons count, to run concurrently with five years of imprisonment plus three years of post-release supervision on the drug count, and, according to available public records, he is currently incarcerated at Hale Creek ASACTC (“Hale Creek”), in Johnstown, New York. In this action, Petitioner only challenges his conviction for the weapons offense, arguing that his Fourth Amendment rights were violated by the trial court's denial of his motion to suppress evidence of the weapons. (See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody, dated Dec. 10, 2018 (“Petition” or “Pet.”) (Dkt. 1).) For the reasons discussed below, I recommend that the Petition be dismissed.
Petitioner initiated this action in the United States Court for the Eastern District of New York, but, by Order dated January 18, 2019 (Dkt. 4), that court directed that the matter be transferred here (see id.; see also Dkt. 5 (noting that case had been transferred into this District)). At the time he commenced the action, Petitioner was apparently incarcerated at the Mohawk Correctional Facility, in Rome, New York (“Mohawk”). (See Dkt. 6 (noting, in an Order dated January 25, 2019, that Petitioner was then “currently incarcerated at [Mohawk]”).) Then, on March 12, 2019, Petitioner submitted a Notice of Change of Address, indicating that he had been relocated to the Woodbourne Correctional Facility, in Woodbourne, New York (“Woodbourne”). (Dkt. 12.) Although the Docket continues to reflect that Petitioner is being housed at Woodbourne, records made publicly available by the New York State Department of Corrections and Community Supervision (“DOCCS”) indicate that he is currently at Hale Creek. See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ1/WINQ000.
BACKGROUND
As Petitioner's criminal case did not proceed to trial, the factual background of his crimes, as summarized herein, is principally taken from (1) the transcript of a suppression hearing held in the New York Supreme Court, New York County, on July 30, 2015, before the Honorable Laura A. Ward, J.S.C. (“Hearing Tr. I”) (available in the State Court Record (“SR”) (Dkt. 16-1) at ¶ 475-583), and (2) the transcript of a second (reopened) suppression hearing held on August 16, 2016, again before Justice Ward (“Hearing Tr. II”) (SR 589-638).
Petitioner, together with co-defendant Victor Aponte (“Aponte”), was arrested by New York Police Department (“NYPD”) Officer Spencer Garrett (“Garrett”), on November 24, 2014, at about 5:30 p.m., on the Lower East Side of Manhattan. (See Hearing Tr. I, at ¶ 479, 482-83; Hearing Tr. II, at ¶ 594.) Garrett, who, at the time, was working in plain clothes on an anticrime team (Hearing Tr. I, at ¶ 484-85), testified that he was initially alerted by one of his team members to the presence of Aponte, who was sitting on a bench (id., at ¶ 490-91). According to Garrett, after observing Aponte for a few minutes, he saw Petitioner arrive, and he then saw Aponte and Petitioner speak briefly and walk together towards a minivan, which they both entered. (Id., at ¶ 491-93.) Garrett testified that he approached the vehicle, looked into the passenger-side window, and observed the two men together in the front seat. (Id., at ¶ 495-96.) He also testified that he observed Petitioner, who was in the driver's seat, “drop[] a clear zip lock bag [with a white substance in it] . . . in between the [passenger] seat and console, ” and Aponte “drop[] U.S. currency in the cup holder of the console.” (Id., at ¶ 496-97; see also id., at ¶ 557-58.) At that point, according to Garrett, he “knocked on the window with [his] shield in [his] hand and [] told both [men] to step out of the vehicle, ” but, rather than do so, Petitioner “turned the ignition, ” starting the engine. (Id., at ¶ 497.) Garrett testified that he then “went to the front of the vehicle and drew [his] firearm, ” and his “teammates descended onto the vehicle and were able to remove [Petitioner] and Aponte from the car.” (Id.) Once that happened, Garrett went into the vehicle and looked inside the console, where, according to his testimony, he observed narcotics (including cocaine, crack cocaine, heroin, and marijuana), together with over $4,000 in currency, bundled in rubber bands. (Id., at ¶ 500-01, 532-34, 560.)
By the time Garrett testified at the suppression hearings in this case, he had apparently been promoted to the position of Sergeant. (See Hearing Tr. I, at ¶ 478-79; Hearing Tr. II, at ¶ 593.)
The hearing transcripts reflect that the arrests were made on Cherry Street, in the vicinity of Jackson Street (see Hearing Tr. I, at 483), and this Court takes judicial notice that this location is on Manhattan's Lower East Side (see also Decision and Order dated Oct. 16, 2015 (Ward, J.S.C.) (“10/16/15 Order”), at ¶ 198 (similarly identifying location of the arrests as the “lower Eastside”)).
Petitioner and Aponte were both taken to the precinct station house (id., at ¶ 501), where they were searched (id., at ¶ 504). As relevant here, the property that was recovered from Petitioner during the search included a wallet, which contained, inter alia, business cards for a storage facility, with numbers handwritten on them that, according to Garrett, appeared to identify storage lockers. (Id., at ¶ 505, 574-75; Hearing Tr. II, at ¶ 602-03.) Garrett photocopied the business cards (Hearing Tr. I, at ¶ 574), which not only contained a seeming locker number (“3D18”) with Petitioner's initials (“TG”) next to it, but also referenced a seeming locker number (“8A2, ” or “8A02”) with the initials “Tee J” or “TJ” next to it (see Hearing Tr. II, at ¶ 602, 613; see also Petitioner's undated Reply-Traverse and Memorandum of Law to the Respondent's Opposition to the Petition for a Writ [of] Habeas Corpus (“Pet. Reply”) (Dkt. 24), Ex. A, at ECF 29-30). Garrett testified that his suspicions regarding the reference to “Tee J” grew when it was reported to him by another officer that Petitioner had made a telephone call from the precinct, on which he was overheard saying, “Tell Tee J to get the stuff before they bring it back to me. See Tee J before you see me.” (Id., at ¶ 604, 614-15.) Further, Garrett testified that, while at the station house, he also received a telephone call from an Assistant District Attorney, who told him that the District Attorney's Office had been investigating Petitioner “a few years back, ” and, at that time, had “looked at a storage locker in Manhattan somewhere.” (Id., at ¶ 594-95.) Garrett additionally testified that, when Petitioner was searched at the precinct, keys were also recovered from his person (id., at ¶ 541, and that the keys were later found to open a storage locker (see id., at ¶ 573).
As discussed further below, although the State Court Record submitted in this action by Respondent does not contain copies of these business cards, it appears that Garrett attached photocopies of the cards to an Affidavit that he submitted to Justice McLaughlin in connection with an application for a search warrant for the identified storage lockers, and Petitioner has submitted a copy of that search warrant application, and the resulting warrant, with his habeas reply. (See Pet. Reply, Ex. A, at ECF 19-34.) While these documents have not been authenticated, this Court notes that Respondent has not challenged their authenticity, and thus, for purposes of this Report and Recommendation, this Court will assume that the documents submitted by Petitioner are what they purport to be.
As used herein, page numbers identified by the prefix “ECF” refer to the page numbers affixed to a document by the Court's Electronic Case Filing system.
In his Affidavit in support of the search warrant for the storage lockers, Garrett recounted this overheard conversation slightly differently. (See Pet. Reply, Ex. A, at ECF 24 (attesting that he had been told that Petitioner had stated, “in substance: ‘Hey, you have to go pick up my stuff that came in from TJ, if you don't pick it up then they are going to send it back. I'll be out tomorrow, make sure you see TJ before you see me.'”).)
On November 25, 2015, the day after Petitioner's and Aponte's arrest, Garrett obtained a search warrant to search the minivan, which was a rental car that had apparently been rented to Petitioner. (Hearing Tr. I, at ¶ 505-06; Hearing Tr. II, at ¶ 596-97.) Garrett testified that, on the vehicle search that was then conducted, the police recovered additional business cards, apparently for the same storage facility. (Hearing Tr. II, at ¶ 598, 603.) One of the business cards recovered from the minivan bore a notation of what again seemed to be a locker number, with Petitioner's name next to it, and another bore the notation “8 A 02” with the name “Johnson” next to it. (Id., at ¶ 603.)
Finally, on November 26, 2015, prosecutors obtained a search warrant for three storage lockers that matched the numbers found on the recovered business cards. (See id., at ¶ 606-07; Pet. Reply, Ex. A, at ECF 31-34.) The application for that warrant was supported by an Affidavit from Garrett that recounted (1) what he had observed in the minivan at the time of the arrest, (2) the drugs and currency found in the vehicle, (3) the fact that a “key to a storage unit” had been recovered “pursuant to [his] search of [Petitioner's] vehicle and property, ” (4) the notations on the business cards that had been recovered from Petitioner at the precinct (copies of which were attached to the affidavit as an exhibit), (5) Petitioner's conversation about “Tee J” that was reportedly overhead by another officer at the precinct, and (6) a ledger that had been obtained from the storage facility, showing three locker numbers that corresponded to the numbers shown on the attached business cards, and which indicated that locker unit “3D18” was registered in Petitioner's name, and that unit “8A02” was registered in the name “Thad Johnson, ” (See Hearing Tr. II, at ¶ 606-10; Pet. Reply, Ex. A, at ECF 20-27.) That search warrant was executed, and a number of firearms were recovered from one of the lockers searched - in particular, the locker with the number “8 A 02” (the “Johnson Locker”). (See Hearing Tr. II, at SR 607, 618.) According to Respondent, the firearms discovered in the Johnson Locker were all loaded, and included two assault weapons, 17 semiautomatic pistols, and nine revolvers. (See Respondent's Memorandum of Law in Opposition to the Petition For a Writ of Habeas Corpus, dated Apr. 15, 2019 (“Resp. Mem.”) (Dkt. 15), at 1.)
B. Procedural History
1. Indictments Against Petitioner and Aponte
By Indictment filed December 8, 2014, a New York County grand jury charged Petitioner with multiple crimes, including seven drug offenses and 57 weapons offenses. (See SR 016-47.)
Specifically, as to the drug offenses, the grand jury charged Petitioner with six counts of Criminal Possession of a Controlled Substance (two such counts in the Second Degree, in violation of N.Y. Penal Law §§ 220.41(1) and 220.18(1); two counts in the Third Degree, in violation of N.Y. Penal Law § 220.16(1); one count in the Fourth Degree, in violation of N.Y. Penal Law § 220.09(1); and one count in the Fifth Degree, in violation of N.Y. Penal Law § 220.06(5)), and one count of Criminally Using Drug Paraphernalia in the Second Degree, in violation of N.Y. Penal Law § 220.50(2).
As to the weapons offenses, the grand jury charged Petitioner with one count of Criminal Possession of a Weapon in the First Degree, in violation of N.Y. Penal Law § 265.04(2) (for the possession of 10 or more firearms); 26 counts of Criminal Possession of a Weapon in the Second Degree, in violation of N.Y. Penal Law § 265.03(1)(b) (for possession with the intent to use a loaded firearm unlawfully against another person), and, as to those same firearms, 26 counts of Criminal Possession of a Weapon in the Second Degree, in violation of N.Y. Penal Law § 265.03(3) (for possession of a loaded firearm outside of the defendant's home or place of business); two counts of Criminal Possession of a Weapon in the Third Degree, in violation of N.Y. Penal Law § 265.02(7) (for possession of an assault weapon); and two counts of Criminal Possession of a Weapon in the Third Degree, in violation of N.Y. Penal Law § 265.02(3) (for possession of a firearm that has been defaced for the purpose of concealment and prevention of the detection of a crime and misrepresenting the identify of such firearm).
Although the record of the charges against Aponte has not been placed before this Court, Respondent represents that Aponte was charged in a separate Indictment with one count of Criminal Possession of a Controlled Substance in the Second Degree, in violation of N.Y. Penal Law § 220.18(1); one count of Criminal Possession of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law § 220.16(1); and one count of Unlawful Possession of Marijuana, in violation of N.Y. Penal Law § 221.05. (Resp. Mem., at 3 n.3.)
2. Pre-Trial Proceedings
Prior to Petitioner's entry of a plea, the parties litigated a number of procedural issues through fairly extensive motion practice and argument, and in the hearings referenced above. Among those issues were (1) whether the drug and weapons charges against Petitioner should be severed for trial, and relatedly, whether the charges against Petitioner and Aponte should be consolidated, and (2) the extent to which the evidence against Petitioner (including the business cards found in his wallet and the guns found in the storage locker) should be suppressed, as products of an unlawful search.
First, on the issues of severance and consolidation, the trial court - after considering a series of motions and issuing several rulings - ultimately held that, at the prosecution's option, Petitioner could either be tried, in a single trial, on both the drug and weapons charges against him, or, alternatively, he could be tried together with Aponte on the drug charges that they each faced, in which case a separate trial against Petitioner, alone, would have to be held on the weapons charges against him. (See Decision Clarifying Decisions on Motions To Consolidate and To Sever, dated Mar. 18, 2016 (McLaughlin, J.S.C.) (SR 193-94).)
See SR 191-92 (Decision on Omnibus Motion, dated Mar. 4, 2015 (McLaughlin, J.S.C.) (“3/4/15 Order”) (granting Petitioner's motion to sever drug counts from weapons counts)); SR 197 (Decision on Motion to Reargue Decision Granting Severance, dated June 2, 2015 (McLaughlin, J.S.C.) (granting reargument and denying motion to sever)); SR 205 (Decision on Motion To Consolidate Indictments, dated June 2, 2015 (McLaughlin, J.S.C.) (granting consolidation of indictments, but holding that the firearm offenses charged against Petitioner would have to be tried separately from the drug offenses charged against Aponte)); SR 196 (Decision and Order, dated Dec. 22, 2015 (Ward, J.S.C.) (denying new motions by both Petitioner and Aponte to sever the indictments against them)).
Second, and of particular relevance here, while the trial court suppressed the business cards recovered from Petitioner's wallet, it ultimately denied Petitioner's motion to suppress the firearms found in the Johnson Locker. The court's various rulings on the issue of suppression may be summarized as follows:
a. March 4, 2015 Order of Justice McLaughlin
The suppression issue was first raised in an omnibus motion made by Petitioner. (See SR 226-27.) In that motion, Petitioner contended that Petitioner's arrest had been unlawful, and sought, inter alia, to suppress “all evidence obtained and/or recovered as a result of [Petitioner's] . . . stop and seizure . . ., or, in the alternative, directing that a [suppression] hearing be held . . ., and [further] directing the suppression of all evidence recovered pursuant to the search of [the] storage facility unit . . . for want of probable cause.” (SR 226-27; see also SR 234-36.)
The Honorable Edward J. McLaughlin, J.S.C., granted the suppression portion of the motion to the extent of ordering a Mapp/Dunaway hearing be held to address the potential suppression of any property or statements taken from Petitioner in connection with his arrest. (See 3/4/15 Order, at ¶ 191; see also id., at ¶ 192 (noting that the court was ordering a hearing to address “allegations about the circumstances of the arrest”).)
The purpose of a hearing pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), is to determine whether physical evidence sought to be used against a criminal defendant was obtained illegally. The purpose of a hearing pursuant to Dunaway v. New York, 442 U.S. 200.
Separately, though, Justice McLaughlin denied Petitioner's motion to suppress the firearms recovered from the storage facility. Of the three lockers that were apparently searched pursuant to the search warrant in question, Justice McLaughlin found that Petitioner only had standing to challenge the warrant as it related to the single locker that, based on the evidence submitted in support of the warrant, belonged to Petitioner (i.e., locker unit “3D18”). (See id., at ¶ 191.) The court also went on to find, though, that the warrant to search that locker had been properly supported by probable cause. (Id.) Specifically, Justice McLaughlin (who had issued that warrant in the first place (see Pet Reply, Ex. A, at ECF 34)) stated that he had reviewed the search warrant de novo, and found that it had been adequately supported by an affidavit describing both the drug sale that had been observed in Petitioner's vehicle, and the results of a later search of that vehicle - a search that, according to the court, had “led to the discovery of more narcotics and two business cards of the storage unit company that contained the numbers of the three units written on the back.” (3/4/15 Order, at ¶ 191-92.) According to Justice McLaughlin, “[t]hese circumstances made it more likely than not . . . that these units contained contraband associated with drug dealing ....” (Id., at 192 (citations omitted).)
The court found that Petitioner lacked standing to challenge the search warrant for the Johnson Locker (locker unit “8A02”) where the firearms were found), as he had “not alleged facts establishing an expectation of privacy in [that] unit[], and the supporting affidavit for the search warrant contain[ed] information showing that [this] unit[] belonged to [an]other [person].” (Id.)
Apparently, Justice McLaughlin did not realize that the business cards that had been submitted by Garrett in support of the search warrant application were the cards that had been recovered from Petitioner, at the precinct, and not the cards that had been separately recovered from the search of the minivan. This issue, however, was addressed in later rulings of the court (Ward, J.), as set out below.
b. October 16, 2015 Order of Justice Ward
The Mapp/Dunaway hearing that was ordered by Justice McLaughlin was held on July 30, 2015, before Justice Ward (see Hearing Tr. I), and, on October 16, 2015, Justice Ward issued a written Decision and Order, setting out her findings (see 10/16/15 Order). Although she found Garrett's testimony credible, Justice Ward granted Petitioner's motion to suppress the business cards recovered from his wallet. (See id., at ¶ 199-200.)
In this regard, the court found that the search of Petitioner's wallet was not justifiable as a purported “inventory search, ” as the objectives that are advanced by such a search are “protecting an owner's property while it is in the custody of police; insuring police against claims of lost, stolen, or vandalized property; and guarding police and others from dangerous instrumentalities that would otherwise go undetected.” (Id., at ¶ 199 (quoting People v. Galak, 80 N.Y.2d 715, 718 (1993)).) Noting that “inventory searches are not ‘a ruse for a general rummaging in order to discover incriminating evidence'” (id., quoting Florida v. Wells, 495 U.S. 1 (1990)), the court found that this is what Garrett had admittedly sought to do (see id. (noting that Garrett had “repeatedly testified that the search of [Petitioner's] wallet was conducted, in part, to discovery more evidence or ‘clues'”)).
In conclusion, Justice Ward wrote:
Although a search of a wallet to catalog important papers, credit card, or money may be permissible, this court fails to see how xeroxing of business cards satisfies any of the three specific objectives advanced by inventory searches. Since Sgt. Garrett
failed to follow the objectives of an inventory search, [Petitioner's] motion to suppress the items recovered from the wallet is granted.(Id., at 199-200.)
c. December 17, 2015 Order of Justice Ward
By Decision and Order dated December 17, 2015, Justice Ward rejected a motion by the People to reargue her earlier decision granting suppression of the business cards recovered from Petitioner's wallet. (See Decision and Order, dated Dec. 17, 2015 (SR 201-02).) The court found that it had not overlooked or misapprehended any matter of law or fact in rendering her prior decision, and, in any event, even if it were to allow reargument, it would still find that the material taken from Petitioner's wallet should be suppressed. (Id., at ¶ 201.)
This decision appears to contain certain typographical errors - first in referring to “defendant's motion to reargue” (SR 201), which, in context, this Court takes to mean the People's motion) and, second in referring to the court's prior decision of “October 19, 2015” (id.), which, in the absence of any decision of that date in the record, this Court takes to mean the court's decision of October 16, 2015.
In short, the court reiterated that, as Garrett's testimony established that he had searched through Petitioner's papers for the purpose of discovering incriminating evidence, he had not conducted a proper “inventory” search. (Id., at ¶ 201-02.) The court also found unpersuasive the People's additional argument that the search was proper as “incident to a lawful arrest.” (Id., at ¶ 201.) On that point, the court noted that
[u]nder the State Constitution, to justify a warrantless search incident to a lawful arrest, the People must satisfy two separate requirements. The first imposes spatial and temporal limitations to ensure that the search is not significantly divorced in time or place from the arrest. The second, and equally important, predicate requires the People to demonstrate the presence of exigent circumstances. We have recognized two interests underlying the exigency requirement: the safety of the public and the arresting officer; and the protection of evidence from destruction or concealment.(Id. (internal quotation marks and citation omitted).) In this instance, where Garrett was admittedly looking for clues, the court held that the necessary exigency was not shown. (Id. (noting that “[t]he limited purposes of protecting the safety of the public, the arresting officer, and evidence from destruction or concealment, does not give rise to unlimited or extended warrantless search for incriminating evidence”).)
d. July 21, 2016 Order of Justice Ward
By Decision and Order dated July 21, 2016 (“7/21/16 Order”) (SR 203-04), Justice Ward granted a motion by Petitioner to reargue Justice McLaughlin's March 4, 2015 Order, to the extent that initial Order, on Petitioner's omnibus motion, had denied suppression of the firearms seized from the Johnson Locker. As the search warrant application for the storage lockers had been supported by the business cards taken from Petitioner's wallet, Justice Ward found that Justice McLaughlin's earlier ruling, that the warrant was supported by probable cause, should be revisited in light of her subsequent decision suppressing those business cards as the product of an unlawful search of Petitioner's wallet.
Reasoning that she had now found that the items that had provided the basis of the search warrant “were obtained illegally, ” she granted Petitioner's motion to suppress the firearms obtained as a result of that warrant. (Id., at ¶ 203-04.)
e. August 16, 2016 Ruling by Justice Ward
By letter dated August 9, 2016, the People then moved to reopen the July 30, 2015 suppression hearing on the ground that the People had not initially had the opportunity to present evidence and argument that “there existed an independent source for the location of the storage locker” (i.e., other than the business cards recovered from Petitioner), and that “evidence located therein would have been inevitably discovered.” (SR 185-86.) On August 16, 2016,
Justice Ward granted the motion to reopen the hearing on “the issue of inevitable discovery” (Hearing Tr. II, at ¶ 590) and proceeded to take more testimony from Garrett.
At the reopened hearing, the People essentially argued that, even without the information discovered in Petitioner's wallet, investigators would inevitably have discovered the firearms, based on the separate set of business cards and locker numbers lawfully obtained from the search of the minivan. (See id., at ¶ 623.) Petitioner, for his part, argued, through counsel, that the fact that one of the business cards recovered from his wallet bore the initials “Tee J” (initials that were not similarly marked on any of the business cards recovered from the vehicle) was the key to arousing Garrett's suspicion about the storage lockers, because of the separate fact that Petitioner was overheard on a telephone call, talking about “Tee J” (See Hearing Tr. II, at ¶ 628.)
After hearing Garrett's testimony regarding the evidence that was recovered from the vehicle search, and also hearing argument from counsel, the court agreed with the People that, even absent the evidence recovered from Petitioner's wallet, the firearms would have inevitably been discovered. (See id., at ¶ 636-37.) Issuing her ruling on the record, Justice Ward stated:
Unfortunately, I have to reverse myself, because I believe based on the Inevitable Discovery Rule the fact that the Police were in possession of these cards from the minivan prior to obtaining the Search Warrant, that the name on the back of one of the cards says ‘Johnson 8A02' - and that is the same Locker Number that the Search Warrant originally requested and the ledger indicated belonged to a Thaddeus Johnson - thereby making Johnson even stronger evidence that ‘Tee J.'(Id.) Under the circumstances, the court stated, “So, much to my chagrin, I feel that the law requires me to put the guns back into the case....So, the guns are now in the case.” (Id., at SR 637.)
The court also rejected Petitioner's argument that the firearms constituted the “primary” evidence discovered as a result of Petitioner's illegal search, and thus could not be subject to the “inevitable discovery rule, ” under applicable state law. (See id., at ¶ 627.) Rather, the court accepted the People's argument that, although the firearms constituted the primary evidence of the weapons offenses charged against Petitioner, the primary evidence discovered from the illegal search was the material from Petitioner's wallet. (See id., at ¶ 631.) Viewed in that light, the court found that the firearms were only “secondary” evidence of the illegal search, and that it was therefore not required that the firearms be suppressed. (Id., at 637.)
3. Petitioner's Guilty Plea and Sentencing
On September 19, 2016, Petitioner pleaded guilty to one count of Criminal Possession of a Controlled Substance in the Second Degree, in violation of N.Y. Penal Law § 220.18(1), and one count of Criminal Possession of a Weapon in the First Degree, in violation of N.Y. Penal Law § 265.04(2). (See SR 013; see also Pet. ¶¶ 2, 5, 6.)
Respondent has represented that, “[b]ecause [P]etitioner has challenged only a Fourth Amendment violation and has never raised any issue related to his plea, the minutes of the plea proceeding were not transcribed for his state court appeal and are not included in [R]espondent's state court record.” (Resp. Mem., at 9 n.5.) Respondent has further offered to have the plea minutes transcribed, should this Court wish to obtain them (id.), but this Court finds that this would not be necessary.
On October 5, 2016, Petitioner was sentenced to a prison term of five years on the drug count, with three years of post-release supervision, and a prison term of 10 years on the weapons count, with five years of post-release supervision, with the terms to run concurrently. (See SR 426; see also Pet. ¶¶ 2, 3, 5.)
4. Direct Appeal
Petitioner appealed his conviction to the Appellate Division, First Department, filing a memorandum in support of his appeal on July 26, 2017. (SR 640-63.) In that memorandum, Petitioner claimed that it was procedural error for Justice Ward to have reopened the suppression hearing, and that, in any event, the People had failed to satisfy the requirements of the “inevitable discovery” rule, and that the court's prior ruling, suppressing the firearms, should have stood. (See SR 656-62.)
Petitioner's opening brief to the Appellate Division was mis-titled “Brief For Defendant-Respondent” (SR 640), as Petitioner was the defendantappellant on the appeal.
Petitioner relied entirely on New York case law to support his argument that the court erred in reopening the suppression hearing. (See SR 656 (relying on People v. Kevin W., 22 N.Y.3d 287, 289 (2013)), 657 (asserting that “Kevin W. controls”).) In arguing that “inevitable discovery” had not been established, however, Petitioner cited to decisional law of the Second Circuit, specifically United States v. Heath, 455 F.3d 52 (2d Cir. 2006), United States v. Cabassa, 62 F.3d 470 (2d Cir. 1995), United States v. Eng, 971 F.2d 854 (2d Cir. 1992) (“Eng I”), and United States v. Eng, 997 F.2d 987 (2d Cir. 1993) (“Eng II”). (SR 658-59.) Those decisions, in turn, relied on the United States Supreme Court's decision in Nix v. Williams, 467 U.S. 431 (1984), which recognized the “inevitable discovery” doctrine as an exception to the exclusionary rule that had been established for Fourth Amendment violations.
By decision dated March 29, 2018, the Appellate Division unanimously affirmed Petitioner's conviction. People v. Grant, 159 A.D.3d 640 (2018) (also available at ¶ 708-10). Citing Kevin W., the appellate court held that “[t]he hearing court properly reopened the suppression hearing to permit the People to present evidence on the theory of inevitable discovery, because the People were not afforded a full and fair opportunity to litigate that issue during the initial hearing.” (SR 708; see also SR 709 (“Because of the complex history of the suppression proceedings, and through no fault of the People, that issue was outside the scope of the initial hearing.”).)
In separately holding that, after reopening the hearing, Justice Ward had properly found that discovery of the firearms was inevitable, and that the firearms should therefore not be suppressed, the Appellate Division reasoned as follows:
During the reopened hearing, the People demonstrated a ‘very high degree of probability' that ‘normal police procedures' would inevitably have resulted in recovery of the firearms found in a storage locker even without the business cards obtained from an illegal search of [Petitioner's] wallet. (People v Turriago, 90 N.Y.2d 77, 86 [1997]). The evidence shows that during a lawful search of [Petitioner's] van, the police also recovered business cards to the same storage facility in which the firearms were kept, and, like the ones found in [Petitioner's] wallet those cards contained handwritten notes referring to the storage unit in which the firearms were found. Based on this, normal police investigation would have resulted in discovery of the storage ledgers, which, along with comments [Petitioner] made during an overhead phone conversation, would have connected the lockers to the drug activities for which [Petitioner] was initially arrested.(SR 709-10.)
By letter dated April 2, 2018, Petitioner sought leave to appeal to the New York Court of Appeals, enclosing copies of the briefs that had been submitted to the Appellate Division. (SR 711-12.) By a further letter dated April 27, 2018, Petitioner then detailed the grounds on which he sought to appeal, essentially reiterating the arguments that he raised in the Appellate Division. (See SR 713-16.) After the People submitted a letter to the Court of Appeals in opposition (SR 717-23), Petitioner submitted a reply letter (SR 724-27), asserting that the case implicated “important state constitutional protections for defendants in pre-trial hearings” (SR 724), and urging the Court of Appeals to take the opportunity to clarify its prior rulings (id.).
By Order dated May 30, 2018, the Court of Appeals denied leave to appeal, without opinion. People v. Grant, 31 N.Y.3d 1082 (2018) (also available at ¶ 728).
C. Petitioner's Habeas Petition
In his habeas Petition, filed December 17, 2018, Petitioner states that he is not seeking to challenge his plea to the drug count, but asserts, as he did on his direct appeal, that it was error for Justice Ward to reopen the suppression hearing and then to deny suppression of the firearms under the inevitable discovery doctrine. (See Pet. ¶ 12.) In particular, Petitioner argues that the court “erred in accepting[, ] after three tries, the People's argument that the inevitable discovery doctrine purged any illegal[ity] in the original search[, as] there was no proof that normal police investigation would have inevitably led to the discovery of the evidence, ” and that the court further erred in “providing a new hearing.” (Id.) Petitioner specifically claims that these alleged errors violated his rights under the Fourth and 14th Amendments. (Id.)
Under the so-called “prison mailbox rule, ” see Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001), cert. denied, 534 U.S. 886, a pro se prisoner's habeas petition is deemed “filed” on the date he gives it to prison officials for delivery to the court, rather than the date it is docketed, see id.; Houston v. Lack, 487 U.S. 266, 270 (1988). In this case, however, the Petition indicates that it was mailed to the Court not from the prison where Petitioner was incarcerated, but rather by Petitioner's wife, from his home address. (See Pet., at ECF 14.) Accordingly, Petitioner is not entitled to the benefit of the prison mailbox rule, and his Petition should be considered to have been filed on December 17, 2018, the date it was initially docketed in the Eastern District of New York, where this action was commenced. (See Dkt. 1; see also supra, at n.1).
Respondent opposed the Petition on April 15, 2019. (See Answer in Opposition to the Petition For a Writ of Habeas Corpus, dated Apr. 15, 2019 (Dkt. 14); Resp. Mem. (Dkt. 15); State Court Record (Dkt. 16).)
After requesting and being granted extensions of time to file a reply, in part to try to obtain copies of the search warrants issued in his case that were not included in the produced State Court Record), Petitioner filed his reply on or about October 25, 2019. (Pet. Reply.) As noted above (see supra, at n.5), Petitioner attached to his reply a copy of the search warrant for the three storage lockers that was issued by Justice McLaughlin on November 26, 2014, and the supporting Affidavit executed by Garrett before Justice McLaughlin on that same date. (See Pet. Reply, Ex, A, at ECF 19-34.) As also noted above, the submitted copy of the Garrett Affidavit included, as an exhibit, copies of two business cards that were apparently the cards recovered from Garrett's search of Petitioner at the precinct. (Id., at ECF 29-30.)
Although it appears that Petitioner's reply was mailed to the Court from the prison where Petitioner was incarcerated, the reply is undated, and the postmark on the mailing envelope is not fully legible. (See Dkt. 24.) The submission, however, was marked as received by the Court's Pro Se Office on October 25, 2019 (see id.), the date when it was docketed.
In this reply memorandum, Petitioner also argues that there are grounds for granting habeas relief beyond those specified in his Petition. Specifically, in addition to maintaining that the court erred, under Kevin W., when it reopened the suppression hearing (see Pet. Reply, at 13) and that the court's ruling that the firearms would have inevitably been discovered was improper under federal law (see id., at 14 (alleging that the court's decision on this issue involved an “unreasonable application of the Inevitable Discovery Doctrine under Nix v. Williams . . .”)), Petitioner also contends that his due process and Fourth Amendment rights were violated by the trial court's failure to address whether the search of the minivan was unlawful (id., at 13-14), and he contends that, because the search warrants for both the vehicle and the storage lockers were omitted from the appellate record, he was denied of “meaningful review of his Fourth [A]mendment claim” (id., at 14).
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a habeas petition must be filed within one year of the latest of four dates specified by statute, usually “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A); see also Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (holding that judgment becomes “final” for purposes of Section 2244 upon “the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or - if the prisoner elects not to file a petition for certiorari - [the expiration of] the time to seek direct review via certiorari”).
The limitations period may alternatively begin to run on the following dates: (1) where the petitioner was prevented from filing an application by state action, the date on which the impediment is removed; (2) where the right asserted is a newly recognized one made retroactively applicable, the date on which the constitutional right asserted was initially recognized by the Supreme Court; and (3) the date on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1)(B)-(D).
B. Exhaustion of State Remedies
A federal court generally may not consider a petition for habeas corpus unless the petitioner has first exhausted all state judicial remedies for his federal claims. 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (exhaustion requirement, as now codified in AEDPA, “reflects a policy of federal-state comity”); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (“[W]hen a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.”); Rhines v. Weber, 544 U.S. 269, 273-74 (2005) (“the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims” (citation omitted)). Under AEDPA, the only times when a federal court may grant habeas relief absent full exhaustion are where it appears that there is either “an absence of available State corrective process” or “circumstances exist that render such process ineffective to protect the rights of the [petitioner].” 28 U.S.C. § 2254(b)(1).
To satisfy the exhaustion requirement, a habeas petitioner must have “fairly presented” his claims to the state courts, thereby affording those courts the “‘opportunity to pass upon and correct' alleged violations of . . . [his] federal rights.” Picard, 404 U.S. at 275 (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). A petitioner may fairly present a federal claim in several ways, including by citing relevant provisions of the federal Constitution in his appellate brief, see Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001), or by relying on “pertinent federal cases employing constitutional analysis, ” Mallet v. Miller, 432 F.Supp.2d 366, 374 (S.D.N.Y. 2006) (internal quotation marks and citation omitted) (enumerating the ways a petitioner may fairly present his federal claims in state court).
Aside from setting out the federal nature of his claims, the petitioner must also, for purposes of the exhaustion requirement, present those claims to “the highest court of the pertinent state.” Chebere v. Phillips, No. 04cv296 (LAP), 2013 WL 5273796, at *19 (S.D.N.Y. Sept. 18, 2013) (internal quotation marks omitted) (quoting Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994)). Where a petitioner has been convicted in a New York state court, he may exhaust a federal claim challenging his conviction by presenting the claim on direct appeal to the Appellate Division, and then by seeking leave to appeal to the New York Court of Appeals. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005).
Where a claim is not appropriate for direct appeal because it cannot be demonstrated on the basis of the pre-trial or trial record, a petitioner may exhaust the claim by raising it to the state trial court in a collateral post-conviction motion, typically in a motion made pursuant to Section 440 of the New York Criminal Procedure Law. See, e.g., Reyes v. Phillips, No. 02cv7319 (LBS), 2005 WL 475544, at *4 (S.D.N.Y. Mar. 1, 2005). A petitioner may also exhaust a claim by raising it to the state trial court or the appropriate Appellate Division on a state petition for a writ of habeas corpus, see N.Y. C.P.L.R. § 7002, and by then appealing from the denial of that petition, see N.Y. C.P.L.R. § 7011. Finally, a petitioner may exhaust a claim of ineffective assistance of appellate counsel by raising that claim to the Appellate Division on a motion for a writ of error coram nobis, and by then seeking leave to appeal the denial of that motion to the Court of Appeals. See Shomo v. Maher, No. 04cv4149 (KMK), 2005 WL 743156, at *3 (S.D.N.Y. Mar. 31, 2005) (citing N.Y.C.P.L. §§ 450.90(1), 460.10(5)(a)).
C. Claims That Are Deemed Exhausted, But Procedurally Barred
Where a petitioner presents an unexhausted claim, but, under state procedural law, no longer has any available avenue to pursue the claim in the state courts (as when, for example, a claim is record-based, but the petitioner failed to raise it in his one opportunity for direct appeal), the claim should be deemed exhausted for purposes of federal habeas review. See Grey v. Hoke, 933 F.2d 117, 120-21 (1991). The state-law procedural bar that gives rise to the claim's being deemed exhausted, however, “provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas review of the defaulted claim, ” unless the petitioner can show grounds to overcome the default. Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (citations omitted); see also, e.g., Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (“[W]e conclude that [the petitioner's] appellate counsel unjustifiably failed to argue this ineffective assistance claim on direct appeal despite a sufficient record .... Accordingly, [the petitioner's] claim is procedurally defaulted for the purposes of federal habeas review as well.”); see generally Coleman v. Thompson, 501 U.S. 722, 729 (1991) (habeas review generally not available when a state court decision “rests on a state law ground that is independent of the federal question and adequate to support the judgment”).
In order to overcome the procedural bar to federal habeas review, the petitioner must show both “cause” for the procedural default and “prejudice” resulting therefrom. See Coleman, 501 U.S. at 749-50. “Cause” is established when “some objective factor external to the defense” impeded the petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). More specifically, a petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available, ” (2) “some interference by state officials made compliance [with the procedural rule] impracticable, ” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett, 41 F.3d at 829 (internal quotation marks and citation omitted). As for the “prejudice” prong, while the Supreme Court has not given “precise content” to the term “prejudice, ” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), it has made clear that a petitioner must show more than “a possibility of prejudice;” rather, the legal errors raised in the petition must have “worked to [the petitioner's] actual and substantial disadvantage, ” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). This is “a significantly higher hurdle than would exist on direct appeal, ” id. at 166, as the degree of prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments, ” id. at 175.
A defaulted claim may also be reviewed in a federal habeas proceeding where a “fundamental miscarriage of justice” would result from the court's failure to review the claim; but, to satisfy this exception to the procedural bar, the petitioner must make a showing of actual innocence. See Schlup v. Delo, 513 U.S. 298, 321 (1995); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). “Actual innocence” means “factual innocence, not mere legal insufficiency.” Dunham, 313 F.3d at 730 (citation omitted). To support an allegation of a fundamental miscarriage of justice, the petitioner must bring forward “new reliable evidence -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324.
D. Standard of Review Under AEDPA
When this Court reviews a federal constitutional claim that has been adjudicated on the merits by the state court, this Court must accord substantial deference to the state court's decision under the standard of review dictated by AEDPA. See 28 U.S.C. § 2254(d). The relevant section of AEDPA provides that:
[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal 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). In addition, under AEDPA, where not manifestly unreasonable, a state court's factual findings are presumed correct, and can only be overcome by “clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).
Under AEDPA, a state court decision is “contrary to” clearly established federal law where the state court either applies a rule that “contradicts the governing law” set forth in Supreme Court precedent or “confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision” and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to “a set of facts different from those of the case in which the principle was announced.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003). The state court's decision, however, “must have been more than incorrect or erroneous”; rather, “[t]he state court's application must have been ‘objectively unreasonable.'” Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quoting Williams, 529 U.S. at 409). To be entitled to habeas relief, a petitioner must “show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).
E. Habeas Relief in the Plea Context
In Tollett v. Henderson, 411 U.S. 258 (1973), the Supreme Court articulated the general rule that, “[w]hen a criminal defendant has solemnly admitted in open court that he is in 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, ” id., at 267. Rather, the Court ruled that, where a defendant has pleaded guilty, he could then “only attack the voluntary and intelligent character of the guilty plea, ” by demonstrating that, in connection with the plea, he had received ineffective assistance of counsel. Id.
In Lefkowitz v. Newsome, 420 U.S. 283 (1975), however, the Court carved out an exception to the rule articulated in Henderson, finding that a guilty plea would not waive habeas review of certain types of constitutional claims arising from pretrial proceedings, in cases where the state had assured criminal defendants that a guilty plea would not foreclose their rights to raise those types of claims on appeal. In particular, and as relevant here, the Court noted that the New York State system specifically provided for “post-guilty plea appellate review of pretrial motions to suppress, ” id., at 292, and that, for that reason, post-plea challenges to suppression rulings could therefore be considered in a federal habeas proceeding, see id., at 293.
F. The Rule of Stone v. Powell
The year after it decided Lefkowitz, the Supreme Court issued its decision in Stone v. Powell, 428 U.S. 465 (1976), in which it held that, “where 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 trial.” Powell, 428 U.S. at 494 (footnotes omitted). Under Powell, the threshold and key inquiry for habeas courts confronting a Fourth Amendment claim (both after trial and also, under Newsome, in the plea context) became whether the petitioner was denied the opportunity to litigate a Fourth Amendment claim “fully and fairly, ” such that his due process rights could be said to have been violated.
As explained by the Second Circuit, such a denial of due process may be found to have occurred only where (a) the state provided “no corrective procedures” to redress the claimed Fourth Amendment violations, or (b) “the state [] provided a corrective mechanism, but the [petitioner] was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)); see White v. West, No. 04-CV-02886 (RRM), 2010 WL 5300526, at *13 (E.D.N.Y. Dec. 6, 2010) (“Indeed, the federal habeas court's role is not to inquire into the merits of the state court decision; rather, a federal 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.” (quoting Munford v. Graham, No. 09cv7899 (DLC) (AJP), 2010 WL 644435, at *15 n.24 (S.D.N.Y. Feb. 24, 2010), report and recommendation adopted, 2010 WL 2720395 (June 29, 2010), aff'd, 467 Fed.Appx. 18 (2d Cir. 2012)).
A “disruption or obstruction of a state proceeding” could create an “unconscionable breakdown” in process. Id. (citations omitted). Such a breakdown, however, “must be one that calls into serious question whether a conviction [has been] obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society.” Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y. 1988) (noting, as examples, the bribing of a state court judge, the government's knowing use of perjured testimony, and the use of torture to extract a guilty plea), aff'd, 852 F.2d 59 (2d Cir. 1988) (per curiam); accord Cotto v. Fischer, No. 09cv9813 (SAS) (MHD), 2012 WL 550575, at *21 (S.D.N.Y. Aug. 23, 2012) (finding no unconscionable breakdown in process where the trial court had afforded the petitioner a full Mapp hearing and had delivered a detailed explanation of its ruling that probable cause existed), report and recommendation adopted, 2012 WL 5499890 (Nov. 12, 2012).
Where a habeas petitioner cannot show either that he was never afforded a corrective process for a claimed Fourth Amendment violation, or that there was an unconscionable breakdown in that process, his underlying Fourth Amendment claim will not be cognizable on habeas review. White, 2010 WL 5300526, at *13.
II. THE PETITION SHOULD BE DISMISSED.
A. The Petition Was Timely Filed.
As a preliminary matter, this Court notes that there is no issue here as to whether the Petition was timely filed, within the AEDPA statute of limitations. The Court of Appeals denied Petitioner leave to appeal on May 30, 2018, and the one-year limitations period began 90 days thereafter, on August 28, 2018. As set out above, Petitioner filed his Petition on December 17, 2018, less than four months later, and well within the limitations period.
B. Petitioner's Habeas Claims Are Either Non-Cognizable or Procedurally Defaulted.
Despite the fact that his habeas claims have been timely asserted, and even though, in light of Newsome, Petitioner's constitutional claims should not be considered waived by his guilty plea, Petitioner cannot prevail on his claims. As discussed in greater detail below, Petitioner's claim challenging the reopening of the suppression hearing is not cognizable, as it is based solely on state law; his challenge to the hearing court's application of the inevitable discovery doctrine is also non-cognizable, under Powell; and his newly raised challenges to the court's failure to address the legality of the vehicle search and the adequacy of the appellate record are unexhausted, deemed exhausted, and procedurally barred from habeas review.
1. Petitioner's Challenge to the Reopening of the Suppression Hearing Is a Non-Cognizable State-Law Claim.
Petitioner's first habeas claim is that Justice Ward committed a procedural error by reopening the suppression hearing, so as to allow the People to introduce evidence regarding the purported “inevitable discovery” of the firearms. (See Pet. ¶ 12; Pet. Reply, at 13.) Petitioner raised this claim before the Appellate Division and in his letters seeking leave to appeal to the New York Court of Appeals, but in both instances, Petitioner relied entirely on state law. In particular, Petitioner argued before the state courts that, under the Court of Appeals' holding in Kevin W., the People should only have been entitled to reopen the hearing upon “a showing that they were deprived of a full and fair opportunity to be heard.” (SR 656-57, 713-14, 724-27.) Petitioner casts the argument the same way here, again relying entirely on Kevin W. (See Pet. Reply, at 13.)
Federal habeas review is not available where there is simply an error of state law. See 28 U.S.C. § 2254(a) (permitting federal habeas corpus review only where the petitioner has alleged that he is in state custody in violation of “the Constitution or laws or treaties of the United States”); see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” (citations omitted)). Accordingly, any claim that Petitioner is seeking to advance that is grounded on New York state precedent as to when a suppression hearing may be reopened is not a claim that would be cognizable on federal habeas review. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (habeas corpus review not available to remedy alleged error of state law). Accordingly, this claim should be dismissed.
2. Petitioner's Fourth Amendment Claim Challenging the Hearing Court's Application of the Inevitable Discovery Doctrine Is Also Non-Cognizable, Under Stone v. Powell.
Petitioner has also raised a federal constitutional claim, grounded in the Fourth Amendment and the due-process guarantees of the 14th Amendment, challenging Justice Ward's ultimate denial of suppression of the firearms found in the Johnson Locker. (See Pet. ¶ 12; Pet. Reply, at 14-17.) More specifically, Petitioner contends that, in accordance with Nix. v. Williams and related precedent, the firearms should have been suppressed under the exclusionary rule, as Justice Ward engaged in improper speculation in finding that the firearms inevitably would have been discovered - even absent the use of information (the references to “Tee J” or “TJ”) contained on the business cards recovered from the unlawful search of Petitioner's wallet. (See Pet. Reply, at 14-17.) Petitioner exhausted this claim by raising his claim in federal terms before both the Appellate Division and in his letters seeking leave to appeal to the New York Court of Appeals. (See SR 657-62; 715-16, 726.) Now, in his habeas submissions, he argues that he should be granted habeas relief under AEDPA because the Appellate Division's rejection of this claim constituted an “unreasonable application” of Williams. (Pet Reply, at 14 (citing 28 U.S.C. § 22554(d)(1).)
This Court notes that the firearms were critical evidence of the weapons offenses charged against Petitioner, and, indeed, implicit in Petitioner's claim is the argument that, had the required suppression been granted, the People would have had no evidence to support the weapons charges against Petitioner, and those charges would have been dismissed. As Respondent argues, however (see Resp. Mem., at 11-14), Petitioner's constitutional challenge to the court's suppression ruling must fail under Powell, as Petitioner has not shown that he was denied the opportunity to litigate this claim fully and fairly in the state courts.
While Petitioner contests the correctness of Justice Ward's ultimate suppression ruling under the inevitable discovery doctrine, as articulated by the Supreme Court (see Pet. Reply, at 15-17), he does not contend - nor could he - that the court failed to provide “corrective procedures” to redress the unlawful search of his wallet and to allow him to contest the People's argument that the firearms should not be suppressed, regardless of the illegality of that search. At the reopened suppression hearing, Petitioner's counsel was given ample opportunity to crossexamine Garrett and also to make oral argument to the court on Petitioner's behalf, on the issue of “inevitable discovery.” (See Hearing Tr. II, at ¶ 608-17, 618-20, 626-31, 634-36.) After considering the evidence presented at the hearing, as well as the parties' arguments, Justice Ward issued a ruling on the record that clearly set out her reasons for reversing her prior decision on suppression and “put[ting] the guns back into the case, ” and noting Petitioner's objection for the record. (Id., at 636-37.) In addition, Petitioner was able to - and did - raise his challenge to the hearing court's inevitable-discovery ruling on direct appeal, where it was considered and explicitly addressed by the Appellate Division. Grant, 159 A.D.3d 640.
The federal courts have repeatedly “approved New York's procedure for litigating Fourth Amendment claims . . . as being facially adequate, ” Capellan, 975 F.2d at 70 n.1 (citations omitted), and, in light of the above-recited history of this case, Petitioner was plainly afforded access to those procedures to remedy the Fourth Amendment violation that arose from the unlawful search of his wallet, see, e.g.; White, 2010 WL 5300526, at *12 (noting that, where petitioner had litigated his Fourth Amendment claims both at a suppression hearing and on direct appeal to the Appellate Division, he “demonstrated that state process was available, and, indeed, that he availed himself of that process” (citation omitted)); Nunez v. Conway, 923 F.Supp.2d 557, 568 (S.D.N.Y. 2013) (dismissing Fourth Amendment claim where “the trial court conducted a suppression hearing on [the petitioner's] probable cause and suggestive identification claims . . . [and] the petitioner then litigated those claims before the Appellate Division and sought review from the Court of Appeals”).
Thus, having taken advantage of existing state procedures for the review of his Fourth Amendment claim, Petitioner can only argue that those procedures suffered an “unconscionable breakdown.” See White, 2010 WL 5300526, at *13 (“Here, since it is clear that corrective process was available, federal habeas review of Petitioner's Fourth Amendment claim will lie only if he demonstrates an ‘unconscionable breakdown' in the state's procedure for litigating those issues.”). Yet, there is absolutely nothing in the record that could suggest that the suppression hearing and subsequent appeal were disrupted, obstructed, or otherwise suffered any kind of breakdown whatsoever, much less a breakdown that could be found “unconscionable.”
On reply, Petitioner complains that the omission of the search warrants from the appellate record precluded him from seeking a meaningful review of his claim, and therefore constituted “an unconscionable breakdown in the underlying process [of] review.” (Pet. Reply, at 14.) The record reflects, however, that Justice Ward was well aware that the business cards recovered from Petitioner's wallet had been used to obtain the search warrant for the storage lockers, as she initially suppressed the firearms on that basis (7/21/16 Order), and as she made clear that the entire purpose of the reopened hearing was to reexamine the question of whether the firearms should be allowed in evidence, regardless of the fact that the warrant was obtained based on tainted evidence (see Hearing Tr. II, at ¶ 590). Given the clarity of Justice Ward's rulings in this regard, Petitioner has not shown that the absence of the warrant itself from the record hindered his ability to advance his Fourth Amendment claim on appeal. Moreover, Petitioner has not explained how he was denied due process by the absence from the record of the search warrant for the vehicle. He has not even suggested that probable cause for the vehicle search was lacking, and it would seem that a search of the vehicle would have been entirely justified based solely on the fact that an officer had observed an apparent drug sale take place in the vehicle (see Hearing Tr. I, at ¶ 496-97, 557-58), and had then further observed both drugs and currency in the vehicle immediately thereafter (see id., at ¶ 500-01, 532-34, 560).
It also does not appear that Petitioner ever argued to Justice Ward that he needed access to the warrants in order to raise a particular Fourth Amendment claim. Nor does Petitioner's appellate brief reflect that he raised any argument on appeal that he had been denied due process in the hearing court by the absence of the warrants. Nor does it appear that Petitioner ever informed the Appellate Division that the record needed to be developed prior to that court's review of his Fourth Amendment claim.
In the end, the hearing court found - in Petitioner's favor - that Garrett's search of Petitioner's wallet was violative of the Fourth Amendment, that the business cards discovered as a result of that search were properly suppressed, and that the search warrant for the storage lockers had been improperly obtained based on those same business cards. The only remaining issue was whether, under the inevitable discovery doctrine, the firearms located as a result of that warrant could still be received in evidence at trial. As Petitioner has not shown that he was, in any way, denied a “full and fair” opportunity to litigate that issue, I recommend that his Fourth Amendment claim regarding the court's allegedly unreasonable application of the inevitable discovery doctrine be found non-cognizable under Stone v. Powell, and that his claim be dismissed on that basis.
3. Petitioner's Challenge to the Hearing Court's Alleged Failure To Address the Legality of the Vehicle Search Is Procedurally Barred.
In his reply, Petitioner contends that in his initial, omnibus motion, he sought suppression of all evidence recovered from the searches of his person, the minivan, and the storage lockers, but that, although Justice McLaughlin granted a suppression hearing with respect to the items seized from his wallet and the vehicle, Justice Ward, who then conducted that hearing, ended up ruling only on the legality of the wallet search, and “never made an inquiry or finding on whether there was probable cause to issue the search warrant for [] Petitioner's vehicle and [to suppress the] items seized [therefrom].” (Pet. Reply, at 14.) According to Petitioner, the court's failure to conduct this inquiry and make findings ran counter to Section 710.60(6) of the New York Criminal Procedure Law (which provides that, “[r]egardless of whether a hearing was conducted, the court, upon determining the motion, must set forth on the record its findings of fact, its conclusions of law and the reasons for its determination”), as well as to state and federal case law, and deprived him of due process (see id., at 13-14).
As Petitioner did not raise this due-process claim before the state courts, either on direct appeal or by any post-conviction collateral motion, it is unexhausted. It should be deemed exhausted, though, because the claim is record-based and thus could have been raised on direct appeal, and, having already used his one opportunity for direct appeal, Petitioner cannot appeal the claim now. See Ortiz v. Attica Corr. Facility, No. 15cv02698 (WHP) (DF), 2017 WL 7736415, at *13 (S.D.N.Y. Nov. 21, 2017) (citing Castille v. Peoples, 489 U.S. 346, 350-51 (1989)), report and recommendation adopted, 2018 WL 1010295 (S.D.N.Y. Feb. 20, 2018). Accordingly, the claim is procedurally barred from federal habeas review, unless Petitioner can demonstrate either (1) cause for his failure to raise the claim on appeal and prejudice resulting from the default, or (2) that the Court's declining to review the claim on habeas would represent a fundamental miscarriage of justice. See Coleman, 501 U.S. at 749-50; Schlup, 513 U.S. at 321. In this instance, Petitioner has not even attempted to satisfy these necessary criteria for overcoming his procedural default.
First, regardless of whether he could even potentially show that he suffered “prejudice” from the default of this claim, Petitioner has, in any event, proffered no “cause” for his failure to raise the claim on his direct appeal. Second, as to any potential “fundamental miscarriage of justice, ” Petitioner has not even asserted that he is innocent of the weapons charges. Certainly, he has introduced no new evidence of actual innocence, and, in light of his guilty plea (which he has not suggested was coerced), there would seem to be no basis for him to do so.
As Petitioner has not overcome the procedural bar to the Court's habeas review of this claim, the claim should be dismissed.
4. Petitioner's Challenge to the Adequacy of the Appellate Record Is Also Defaulted.
Lastly, this Court turns to Petitioner's recent contention that he was denied meaningful judicial review of his Fourth Amendment claim because the search warrants for the vehicle and the storage lockers were not part of the appellate record. (Pet. Reply, at 14.) From the context in which Petitioner raises this contention, it seems that he may only be raising the issue in an attempt to show a “breakdown” in the “corrective process” sufficient to allow his Fourth Amendment claim to survive Stone v. Powell. (See Pet. Reply, at 14 (arguing that the absence of the warrants from the record “precluded” him “from using procedures provided by the state” to remedy the Fourth Amendment violation).) Yet, liberally construing his submissions, this Court assumes that he may be seeking to raise an independent due-process claim that he was denied meaningful appellate review because of a gap in the appellate record. See, e.g., DeGondea v. West, No. 04cv7457 (GBD) (DF), 2010 WL 4942223, at *17 (S.D.N.Y. June 2, 2010) (“Petitioner's claim that he was denied a meaningful appeal implicates [] due process . . . guarantees.”), report and recommendation adopted, 2010 WL 4942266 (Dec. 3, 2010). Any such claim, however - like Petitioner's challenge to the hearing court's failure to address the vehicle search warrant - should be considered unexhausted, deemed exhausted, and procedurally barred.
This Court is required to interpret the pleadings of a pro se litigant “liberally [] in his favor.” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (“It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.” (internal quotation marks and citations omitted; emphasis omitted) (collecting cases)).
As noted above, Petitioner could have raised, on his direct appeal, an issue about documents that needed to be added to the record so as to afford him meaningful review of his claims, but it does not appear that he did so. Under the circumstances, he has defaulted his due-process challenge to the adequacy of the record, and he has not shown any cause for that default. He also has not shown that the absence of the search warrants from the record caused him any actual prejudice in his ability to present, on appeal, any Fourth Amendment claim that he sought to present. Additionally, he has again made no showing of actual innocence sufficient to allow this Court to review the defaulted claim. For these reasons, any due-process claim that Petitioner is now asserting, regarding the inadequacy of the appellate record, should be dismissed.
CONCLUSION
For all of the foregoing reasons, I respectfully recommend that Petitioner's Petition for a Writ of Habeas Corpus (Dkt. 1) be dismissed in its entirety. Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A) because Petitioner has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Alison J. Nathan, United States Courthouse, 40 Foley Square, New York, New York 10007, Room 2102. Any requests for an extension of time for filing objections must be directed to Judge Nathan. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
If Petitioner does not have access to cases cited herein that are reported only on Westlaw, he may request copies from Respondent's counsel. See Local Civ. R. 7.2 (“Upon request, counsel shall provide the pro se litigant with copies of [cases and other authorities that are unpublished or reported exclusively on computerized databases that are] cited in a decision of the Court and were not previously cited by any party.”).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Petitioner at the address reflected on the Docket and shown below.