Opinion
96-CV-1141 (RSP/GLS).
September 1, 1998
CHARLES THOMPSON, Petitioner, Pro Se, Staten Island, New York.
HON. DENNIS C. VACCO, Attorney General of the State of New York, Department of Law, Of Counsel, STEVEN H. SCHWARTZ, ESQ., Asst. Attorney General, Albany, New York, Attorney for Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the instant habeas corpus petition on July 12, 1996. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law. Petitioner filed a response (Docket No. 11).
The state court records submitted by respondent are listed in the first paragraph of the answer.
Petitioner complains of a judgment of conviction rendered against him on May 19, 1992, in the Albany County Court after petitioner pled guilty to criminal possession of a controlled substance in the second degree. Petitioner was sentenced to an indeterminate term of seven years to life imprisonment. The Appellate Division, Third Department affirmed the conviction on March 17, 1994, People v. Thompson, 609 N.Y.S.2d 873 (3d Dept. 1994), and the New York Court of Appeals denied leave to appeal on August 31, 1994. People v. Thompson, 641 N.E.2d 175 (1994).
In October 1994, petitioner moved to vacate the judgment and set aside the sentence. The Albany County Court denied the motion on October 18, 1995, and petitioner's application for permission to appeal to the Appellate Division was denied. Petitioner then filed an application to the Appellate Division requesting a writ of error coram nobis, which was denied on April 2, 1996.
Petitioner raises four claims in his application for habeas corpus relief. Petitioner alleges that: (1) his guilty plea was not made knowingly, intelligently and voluntarily; (2) his conviction was obtained by use of unlawfully obtained evidence; (3) the prosecutor failed to disclose evidence favorable to the defense; and (4) petitioner was denied the effective assistance of counsel.
Respondent argues for dismissal of the petition, claiming that petitioner has procedurally defaulted on grounds one and four; ground two is not cognizable on federal habeas review; and ground three is without merit.
1. Facts:
Petitioner's conviction resulted in part from an incident which occurred on April 11, 1991, on the New York State Thruway. At approximately 3:30 a.m., New York State Troopers Edwin Garcia and Randy Blanchard stopped a vehicle traveling northbound on the Thruway because they observed a small child unrestrained in the back seat and a broken license plate light. (Record on Appeal ("R") at 9, 10). Trooper Garcia approached the driver (petitioner), told him why the vehicle was stopped, and requested his license and registration. (R. 11). A check of the license revealed that petitioner was wanted by the New York City Police and by the United States Marshal's Office. (R. 12).
Petitioner was arrested and taken to the police station to be fingerprinted. The vehicle was locked and left on the Thruway and subsequently impounded. (R. 52-53, 96). The other adult passengers in the vehicle, Donald Walker and Tanya Tirado, did not have driver's licenses and were also brought to the station. Walker and Tirado eventually left the station by taxi. (R. 54).
Investigator Robert Hayes conducted an inventory search of the vehicle, which was owned by a third party. (R. 98). Hayes was unable to locate a key for the trunk of the vehicle, and contacted the New York State Thruway Authority in an attempt to locate a locksmith. No locksmith was available, but Hayes was advised that a mechanic might be able to enter the trunk without causing damage to the vehicle. (R. 99). With the assistance of a mechanic, Hayes removed the back seat. In the trunk, Hayes found a brown paper bag containing more than four ounces of a white powdery substance that appeared to be cocaine. (R. 99-101).
2. Procedural Default:
Federal habeas review is barred where a state court has rejected federal claims as defaulted pursuant to an independent and adequate state procedural rule, unless the petitioner can demonstrate cause for the default and actual prejudice resulting from the alleged violation of federal law, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or establish that he is "probably . . . actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986). If the last state court to render a judgment on the issue "clearly and expressly" stated that its judgment rested on a state procedural bar, federal habeas review is barred. Harris v. Reed, 489 U.S. 255, 262-63 (1989); Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995).
In his first ground for relief, petitioner claims that his guilty plea was unlawfully induced and not made voluntarily with an understanding of the nature of the plea or its consequences. In ground four, petitioner claims that he was denied the effective assistance of counsel. Petitioner raised these claims in his motion to vacate judgment. The County Court ruled that the claims were unavailable for review because they could have been included in petitioner's direct appeal. The court's ruling rested on an adequate and independent state procedural rule, N.Y. CRIM. PROC. LAW § 440.10(2)(c), which provides that a court must deny a motion to vacate a judgment if the defendant unjustifiably failed to raise the grounds for the motion in his direct appeal. See, Collado v. Smith, No. 95 CV 0967 (SJ), 1997 WL 124211, at *1-2 (E.D.N Y March 11, 1997); Hendrix v. Williams, No. 92 Civ. 8227 (KMW), 1995 WL 580196, at *1 (S.D.N.Y. Oct. 3, 1995).
Petitioner has procedurally defaulted on grounds one and four of the petition and has not alleged cause for his failure to pursue his claims on direct appeal. Since petitioner cannot show cause for his procedural default, and the state court records do not suggest that he is actually innocent, it is unnecessary for the court to determine whether he has suffered actual prejudice. Stepney v. Lopes, 760 F.2d 40, 45 (2d. Cir. 1985). Therefore, grounds one and four of the petition must be dismissed.
3. Fourth Amendment:
In his second ground for relief, petitioner claims that the trial court erred in denying petitioner's motion to suppress the evidence obtained as a result of searching the trunk of the car petitioner was driving. However, petitioner's Fourth Amendment claims are cognizable on federal habeas review only if he did not receive "an opportunity for full and fair litigation" of those claims in state court. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (quoting Stone v. Powell, 428 U.S. 465, 481-82 (1976)) (emphasis added in original).
In the Second Circuit, a state prisoner will be deemed to have been denied "an opportunity for full and fair litigation" of a Fourth Amendment claim only: "(a) if the state has provided no corrective procedures at all to redress the 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, 975 F.2d at 70 (citations omitted). A federal habeas court cannot review the merits of a Fourth Amendment claim merely because it might have decided the claim differently, but must focus its inquiry on "the existence and application of the corrective [state] procedures themselves. . . ." Id. at 71.
In the instant case, it is clear that petitioner had ample opportunity to litigate his Fourth Amendment claims. The federal courts have "`approved New York's procedures for litigating Fourth Amendment claims . . . as being facially adequate.'" Id. at 70 n. 1 (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989)) (additional citations omitted). Moreover, there is no evidence of an "unconscionable breakdown" in New York's procedural scheme as a suppression hearing was held by the trial court. Because petitioner received an adequate hearing on his Fourth Amendment claims in state court, ground two of the petition is not cognizable on federal habeas review.
4. Exculpatory Evidence:
In his third ground for relief, petitioner alleges that the prosecutor provided the defense with only part of a New York State Police Field Manual and withheld the "[Troop] T Operational Guide — Article 11" which allegedly contained information pertinent to petitioner's defense. Petitioner further alleges that the prosecutor failed to turn over evidence that criminal charges were pending against Edwin Garcia, one of the arresting officers who testified at petitioner's suppression hearing.
New York State Police Troop "T" is apparently in charge of enforcing the rules and regulations of the New York State Thruway Authority, and those provisions of New York's Vehicle and Traffic Law that apply to the Thruway. See, People v. Davilla, 532 N.Y.S.2d 1012, 1014 (Montgomery County Court 1988) (citing N.Y. PUB. AUTH. LAW § 361[2]).
When the prosecution withholds from the defense exculpatory material that is "material either to guilt or punishment," due process is violated. United States v. Bagley, 473 U.S. 667, 669 (1985) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)). Evidence is material only if there is a reasonable probability that disclosure of the evidence to the defense would have changed the result of the proceeding. Bagley, 473 U.S. at 682; Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir.), cert. denied, 488 U.S. 890 (1988) (citations omitted). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682.
a. New York State Police Field Manual Troop T Operational Guide:
Respondent argues that petitioner was provided with the relevant section of the New York State Police Field Manual, as shown by its inclusion in the record on appeal, and thus no Brady violation occurred. A review of the record shows that one page of the Field Manual, containing "Impounded Vehicle Procedures," was entered into evidence by petitioner's counsel as an exhibit in the suppression hearing. (R. 110, 220). However, the Troop T Operational Guide does not appear in the state court records. Petitioner claims that he did not learn of the existence of the Operational Guide until after his direct appeal. Petitioner attached a copy of Article 11 (Impounded Vehicle Procedure) of the Operational Guide to his Response (Docket No. 11, Ex. A), although there is no indication as to when this version of the Operational Guide was in effect.
Section 33Z2 of the Field Manual directs troopers to "Open ALL vehicle compartments AND all closed containers which can be opened WITHOUT causing physical damage to the compartment OR container, AND inventory the contents [sic]." The Troop T Operational Guide directs troopers to:
Inventory the Impounded Vehicle when practical (i.e., trunk locked, no keys available. Unless reasonable suspicion of a crime exists, do not force trunk open. Notate on T-34 [Impounded Vehicle Report] trunk locked — no keys. [sic]
It is petitioner's contention that, because no reasonable suspicion of a crime existed at the time of the inventory search, removal of the back seat of the car to search the trunk was an illegal search under the Operational Guide, and the evidence seized from the trunk should have been suppressed.
The County Court found that the removal of the back seat of the car was appropriate under the circumstances of the case, and that the troopers had not "deviated in any significant way from the standard procedure set forth by the State Police." (R. 185-86). On direct appeal, the Appellate Division found that "it was reasonable for . . . Hayes to remove the rear seat to gain access to the locked trunk of the impounded automobile so that he could perform an inventory search of the vehicle's contents pursuant to the established procedure set forth in the New York State Police Field Manual," and that the procedure itself was reasonable. People v. Thompson, 609 N.Y.S.2d 873 (3d Dept. 1994).
It is unlikely that the state courts would have ruled differently if petitioner had presented his arguments based on the Operational Guide. The procedure set forth in the Operational Guide is consistent with the procedure set forth in the Field Manual, and actually directs the investigator to refer to the Field Manual. In addition, it does not appear that Hayes acted inconsistently with the Operational Guide's procedure as he did not "force [the] trunk open." Rather, Hayes found a practical way to access the trunk without causing damage to the vehicle.
The Operational Guide refers to Sections 33V (2) and 33V3 of the Field Manual, which are not included in the record presently before the court.
Because there is no reasonable probability that disclosure of the Operational Guide to the defense would have changed the result of petitioner's suppression hearing, the Operational Guide is not "material" to petitioner's guilt or punishment. The prosecution's failure to provide petitioner with a copy of the Operational Guide did not violate his due process rights.
b. Criminal Charges Against Arresting Officer:
There is also no reasonable probability that disclosure to the defense of the criminal charges pending against Edwin Garcia would have changed the result of petitioner's suppression hearing. Trooper Garcia's testimony describing the vehicle stop was corroborated by the testimony of his partner, Randy Blanchard. (R. 9-17, 49-58). Garcia also testified that he obtained petitioner's consent to search the vehicle while it was still on the Thruway (R. 13), while petitioner testified that Garcia threatened to harm him if he did not consent. (R. 132-33). Although evidence of the criminal charges could have been used to impeach Garcia's credibility, the initial search of the passenger compartment of the car did not yield anything relevant to the case against petitioner. Cocaine was not discovered until the car had been impounded and Investigator Hayes conducted the inventory search. Thus, the prosecution's failure to turn over impeachment evidence with respect to Trooper Garcia did not affect the outcome of the suppression hearing and the evidence was not material. Petitioner's Brady claim is without merit.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.