Opinion
No. 04-CV-2069 (FB).
October 12, 2004
JOHN QUICK, Pro Se, Marcy, NY, For the Petitioner.
CHARLES J. HYNES, ESQ., LEONARD JOBLOVE, ESQ., CYNTHIA KEAN, ESQ., District Attorney, Kings County, Brooklyn, NY, For the Respondent:
MEMORANDUM AND ORDER
Pro se Petitioner John Quick ("Quick") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction on a guilty plea of Criminal Possession of a Controlled Substance in the Second Degree. Quick presents three claims: (1) that his arrest resulted from an illegal search and seizure premised on an defective search warrant, in violation of the Fourth Amendment; (2) that there were defects in the grand jury proceedings; and (3) that he received ineffective assistance of counsel. Petitioner did not raise these issues on direct appeal, but instead presented them in successive New York Criminal Procedure Law § 440.10 petitions. Respondent does not question that petitioner's claims were exhausted through his section 440.10 petitions. For the reasons set forth below, Quick's petition is denied.
Respondent does, however, argue that Quick waived his right to appeal on these issues because he signed a plea agreement that stated "I hereby waive my right to appeal." See Resp't's Ex. F (Waiver of Right to Appeal). Nonetheless, rather than grapple with the nuances of whether this waiver extended to Quick's section 440.10 petitions or his habeas petition, the Court can dispose of Quick's petition on the merits, and does so on that basis.
I.
Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's decision is entitled to substantial deference. See 28 U.S.C. § 2254(d). For such claims, habeas relief may not be granted unless the state court decision (1) 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) 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).
A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See id. at 409. This inquiry requires a court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. In that respect, the standard to be applied "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (citations and quotations omitted). "We caution, however, that the increment [of incorrectness beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (citations and quotations omitted).
A. Fourth Amendment
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court 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 his trial." Id. at 494-95. Thus, Stone bars habeas review of claims that evidence seized should have been suppressed as fruit of an illegal arrest. See Pina v. Kuhlmann, 239 F.Supp. 2d 285, 289 (E.D.N.Y. 2003) ("It is well settled that [Fourth Amendment] claims are not cognizable for habeas corpus review where a State has provided a full and fair opportunity to litigate this issue."). Following Stone, review of Fourth Amendment claims in habeas petitions is permissible only: "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment 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, 70 (2d Cir. 1992).
New York has a corrective procedure for Fourth Amendment violations, which is facially adequate. See id. at 70 n. 1. Indeed, Quick twice availed himself of this state procedure, first by making a motion to controvert the search warrant and suppress evidence, and then by making a motion to reargue that motion. Quick's motions were denied by the state court in written decisions thoroughly exploring the circumstances of his arrest. Further, having reviewed the record, the Court concludes that there was no unconscionable breakdown in the underlying process. Quick's Fourth Amendment claim for habeas relief is, therefore, barred by Stone.
B. Grand Jury Defects
Quick claims that the grand jury proceeding was defective because the prosecutor failed to present exculpatory evidence to the grand jury. In Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989), the Second Circuit concluded that claims of error in a state grand jury proceeding, including claims that the prosecutor failed to present exculpatory evidence, are not cognizable in a federal habeas corpus proceeding because "the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt." Id. at 32 (quotation omitted). This reasoning applies equally to a conviction based on a plea of guilty. See Ballard v. Costello, 2001 WL 1388297, at *8 (E.D.N.Y. Nov. 2, 2001) ("[petitioner's] guilty pleas cured any possible deficiencies in the grand jury proceeding"). Since Quick admitted to the factual elements of the charge against him by entering a plea of guilty, any error in the proceeding which led to his indictment is not amenable to habeas review.
C. Ineffective Assistance
Quick argues that his counsel was ineffective for failing to do more to suppress evidence seized pursuant to the search warrant, by not requesting the allegedly exculpatory evidence, and by not following Quick's recommendations. In ruling on Quick's first section 440.10 petition, the state trial court considered this claim and determined it to be without merit. See People v. Quick, No. 7730-00 (N.Y.Sup.Ct. July 23, 2002), at 1. In doing so, the state court correctly invoked the two prong standard in Strickland v. Washington, 466 U.S. 668 (1984). See Quick, No. 7730-00, at 2 (citing People v. Benevento, 91 N.Y.2d 708 (1998) (setting forth the Strickland standard)). Therefore, only if the state court's application of Strickland was "objectively unreasonable" could this Court grant habeas relief.
Under Strickland, a defendant must show that counsel's representation "fell below an objective standard of reasonableness" based on "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. The state court found that Cook was not deprived of effective assistance of counsel for the following reasons:
[T]o the extent that the defendant asserts that his attorney failed to file a motion seeking suppression of the evidence seized pursuant to the warrant, this accusation is belied by the fact that [counsel] did so move and subsequently moved for reargument of the court's denial thereof. Further, given that this was an `open file discovery' case, the defendant's claims that his counsel failed to request discovery material is inapt. And lastly, the defendant's assertions that his requests were not heeded by counsel and that he was not sufficiently consulted do not constitute incompetence, but rather, bear on strategy and reflect communication issues. . . .Quick, No. 7730-00, at 3. The Court agrees. Based on its review of the state court record, the Court concludes that the state court's analysis was not "objectively unreasonable."
CONCLUSION
The petition is denied. A certificate of appealability will not issue because Quick has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253.
SO ORDERED.