Opinion
99 Civ. 5743 (VM)(FM)
October 11, 2001
REPORT AND RECOMMENDATION TO THE HONORABLE VICTOR MARRERO
I. Background
In this pro se habeas corpus proceeding pursuant to 28 U.S.C. § 2254, petitioner Natch Black ("Black") challenges his conviction on one count of Criminal Possession of a Weapon in the Third Degree following a jury trial in Supreme Court, Bronx County. (See Pet. ¶ 4). On October 20, 1994, Black was sentenced, as a second felony offender, to an indeterminate prison term of three and one-half to seven years.
On March 30, 1995, Black was convicted on two counts of Robbery in the First Degree and one count of Criminal Possession of a Weapon in the Second Degree, for which he since has been sentenced to sentences aggregating twelve and one-half to twenty-five years, which are to be served consecutively to the sentence in this case. People v. Black, 242 A.D.2d 465, 662 N.Y.S.2d 468 (1st Dep't), leave denied, 91 N.Y.2d 833 (1997). Chief Judge Mukasey subsequently dismissed Black's habeas petition attacking the judgment of conviction in the later case. Black v. McGinnis, No. 99 Civ. 0755 (MBM), 2001 WL 209916 (S.D.N.Y. Mar. 1, 2001). For purposes of this Report and Recommendation, I have assumed that Black remains in custody pursuant to the October 1994 judgment. If that sentence has been completed, the Respondent would likely also be entitled to the dismissal of Black's petition on that ground, even if the earlier conviction was used to enhance his later sentence. See Lackawana County Dist. Att'y v. Coss, 632 U.S. 394, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001).
Black appealed his conviction to the Appellate Division, First Department, alleging that his guilt was not established beyond a reasonable doubt and that the trial court improperly had received in evidence a bullet found in the trunk of a nearby car. (Affidavit of Nancy D. Killian dated November 17, 1999 ("Killian Aff."), Ex. 1) (Pet'r's Br. on Appeal)). On May 21, 1998, the Appellate Division rejected both claims and affirmed Black's conviction. People v. Black, 250 A.D.2d 494, 673 N.Y.S.2d 414 (1st Dep't 1998).
Black and his counsel then each wrote to the Court of Appeals requesting leave to appeal. Black's letter, dated June 22, 1998, appears to raise only his sufficiency of the evidence claim. (See Killian Aff Ex. 5 (June 22, 1998 letter from Black to Judith Kaye, Chief Judge of the New York Court of Appeals)). The letter from Black's counsel, dated June 30, 1998, enclosed copies of the Appellate Division briefs and asked for the name of the designated judge so that counsel could send a follow-up letter. (See id. Ex. 4 (June 30, 1998 letter from Steven Berko, Esq., to Chief Judge Kaye)). On September 22, 1998, the New York Court of Appeals denied Black's pro se application for leave to appeal. People v. Black, 92 N.Y.2d 922, 680 N.Y.S.2d 463, 703 N.E.2d 275 (1998). The record before this Court does not indicate whether Black's counsel ever sent a further letter before the Court of Appeals acted.
Black did not subsequently attack his conviction collaterally in state court. (See Pet. ¶¶ 10-11; Killian Aff. ¶ 9).
Black's habeas petition, dated June 18, 1999, was received by this Court's Pro Se Office on July 7, 1999. (Pet. at 2, 7). In his petition, Black raises the same claims advanced before the Appellate Division: that the People failed to establish his guilt beyond a reasonable doubt and that the trial court violated his Fourth Amendment rights by failing to suppress the bullet found in the trunk of the car. (Pet. at 5).
The Respondent's opposition papers contend that the jury was presented with ample evidence of Black's guilt. The Respondent further contends that Black's Fourth Amendment search and seizure claim is not subject to habeas review because Black had an opportunity for full and fair litigation of the issue in state court. (See Killian Aff. ¶ 11; Resp't's Mem. at 4-15).
As set forth below, the Respondent is correct that both claims advanced by Black lack merit. Accordingly, I recommend that the petition be dismissed.
"Tr." refers to the trial transcript. "H." refers to the transcript of the pre-trial suppression hearing held on December 13, 1993.
From the proof at trial a reasonable juror could have found as follows: On April 3, 1993, Sergeant Anthony Trabucco and two trainees, Officers Connors and Shapiro, received a radio transmission. They then drove their patrol car to the corner of East 233rd Street and Dyre Avenue in the Bronx in an effort to locate a black male wearing "an orange top and a baseball hat." (Tr. 313). The man was believed to be in the vicinity of a gold Acura bearing a specific license number. (Id.). The man was further believed to have a gun. (Id.).
After their arrival, the officers observed a gold Acura double parked in front of a tailor shop. (Id. at 313-14). Although the vehicle was unoccupied, the officers observed an individual matching the description of the suspect inside the tailor shop. (Id. at 315). The officers then approached the locked front door of the shop. (Id. at 316). After the persons inside looked at the officers, one of them, later identified as Black, grabbed a garment and ran to a room in the rear. (Id.).
At about the same time, another person inside the shop "buzzed" the door to admit the officers. (Id. at 316). The officers ran after Black, following him into a bathroom. (Id.). As Sergeant Trabucco opened the bathroom door, he saw Black closing the lid of the toilet. (Id. at 317). Sergeant Trabucco lifted the lid and observed a gun in the bowl. (Id. at 318). The Sergeant then instructed Officer Connors to handcuff Black and another officer to remove the gun from the toilet. (Id.).
Following Black's arrest, Sergeant Trabucco searched him and found the keys to the Acura. (Id. at 329). The officers then took the vehicle to the 47th Precinct for vouchering. (Id. at 329-30). During a subsequent inventory search, Sergeant Trabucco opened the trunk of the Acura. He found a .9 millimeter bullet which he gave to Officer Connors. (Id. at 331-32).
Officer Connors vouchered the gun and ammunition clip retrieved from the toilet, the fourteen rounds of ammunition found therein, and the bullet recovered from the trunk of the car. (Id. at 355-56).
Detective Patrick O'Shea, an expert in ballistics, later examined both the gun and some of the ammunition, and found both to be operable. (Id. at 391-95, 404-05). All of the ammunition he examined, including the bullet found in the Acura, was designed for the seized weapon, which was a .9 millimeter handgun. (Id. at 396, 403).
B. Suppression Hearing
Prior to trial, Justice William H. Wallace, III denied Black's application to suppress the .9 millimeter handgun and "clip" retrieved from the toilet after a Mapp hearing at which Officer Connors was the sole witness. (See H. 53-57). During the course of that hearing, defense counsel abandoned any inquiry concerning the bullet that had been found in the car trunk after the prosecutor stated that she was "not really seeking to introduce that." (Id. at 36).
See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
By the time of trial, the prosecution evidently had a different view, advising the Court that the bullet "definitely had to go into evidence." (Tr. 32). As a consequence, Justice Frank Torres, before whom the case was tried, conducted a hearing to determine the legality of the inventory search.
During the hearing, Sergeant Trabucco testified, in part, that the Acura parked in front of the tailor shop matched a plate number that he had been given when he was informed by radio about a man operating a gold Acura who was in possession of a gun. (Id. at 267-68).
Sergeant Trabucco further testified that he had recovered a bullet from the trunk of the Acura during the course of an inventory search conducted after the vehicle was removed to the 47th Precinct. (Id. at 269-71). According to the Sergeant, the bullet was recorded on a property clerk voucher completed by Officer Connors. (Id. at 277).
On cross examination, defense counsel established that the Sergeant and Officer Connors did not record every item found in the vehicle nor did they ask Black to sign the voucher. (Id. at 283-84).
At the conclusion of the hearing, Justice Torres rejected the defense's suggestion that the bullet should be suppressed because the People had failed to adduce sufficient details regarding the Police Department's procedures for inventory searches or show that the search of the Acura complied with those procedures. (See id. at 287-90).
III. Discussion A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861, 122 L.Ed.2d 203 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:
An 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 wanted 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 Federal law, as determined by the Supreme Court of the United States.28 U.S.C. § 2254 (d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "Under the 'contrary to' clause, a federal habeas court may want the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. 529 U.S. at 409, 120 S.Ct. at 1521. This standard does not require that reasonable jurists all would agree that the state court was wrong. Id. 529 U.S. at 409-10, 120 S.Ct. 1495 at 1521-22. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000) (emphasis added). Section 2254(d)(2) further authorizes the federal courts to want a habeas writ when a claim considered on the merits in state court "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."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and that "[t]he [petitioner] shall have the burden of rebuffing the presumption of correctness by clear and convincing evidence."
"If after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 409, 120 S.Ct. at 1510. As discussed below, because Black has failed to show that his conviction resulted from such constitutionally infirm proceedings in state court, he is not entitled to federal habeas relief
B. Sufficiency of the Evidence
Black's first contention is that the evidence at trial was insufficient to prove his guilt beyond a reasonable doubt. A habeas petitioner challenging his conviction on this wound bears a "very heavy burden."Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995) (quoting United States v. Rosenthal, 9 F.3d 1016, 1024 (2d Cir. 1993)). To succeed, he must show that no rational trier of fact could have found the essential elements of the crime to be established beyond a reasonable doubt. United States v. Jones, 16 F.3d 487, 490 (2d Cir. 1993). Conversely, to defeat such a sufficiency claim, a respondent need only show that, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (emphasis in original).
Insofar as pertinent, Section 265.02 of the New York Penal Law provides that a person is guilty of criminal possession of a weapon in the third degree when:
(4) Such person possesses any loaded firearm. Such possession shall not, except as provided in subdivision one or seven, constitute a violation of this section if such possession takes place in such person's home or place of business. . .
N Y Penal Law § 265.02(4) (McKinney 2000). To be convicted, the defendant must knowingly possess a loaded firearm, but he need not know that it was loaded at the time of his possession. People v. Smith, 270 A.D.2d 719, 705 N.Y.S.2d 423, 424 (2d Dep't. 2000).
At trial, Black did not dispute the testimony indicating that a loaded .9 millimeter handgun was recovered from a toilet in the rear of the tailor shop. (See Tr. 448-65 (defense summation)). Rather, the sole focus of his defense was whether there was sufficient circumstantial evidence to establish that the gun was his. (See Id.). In that regard, the jurors reasonably could have inferred Black's possession of the gun from his furtive actions when the police arrived at the store and the recovery of the handgun from the toilet which he was observed closing. Moreover, any conceivable doubt was eliminated by the recovery of a bullet of the type required to operate the gun from a vehicle for which Black possessed the keys. In short, the evidence that Black possessed the handgun was overwhelming even though the gun was not recovered from his person. See, e.g. People v. Arroyo, 188 A.D.2d 655, 592 N.Y.S.2d 52, 53 (2d Dep't 1992) (affirming conviction of defendant observed crouching over a nylon bag from which a gun was recovered); In re Kwasson B., 170 A.D.2d 294, 566 N.Y.S.2d 21 (1st Dep't 1991) (affirming conviction when police officer saw defendant place object at the exact spot from which a loaded shotgun was recovered); see also People v. Mitchelle, 253 A.D.2d 677, 680 N.Y.S.2d 474 (1st Dep't 1998) (affirming conviction where defendant was seen bending over location on the pavement from which a gun was later recovered, police found a shell of matching caliber in police vehicle where defendant had been seated, and two complainants identified defendant as the man with the gun).
C. Search and Seizure
Black's only other claim is that the bullet was not seized from the Acura pursuant to a lawful inventory search. In Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976), the Supreme Court held that "where the state has afforded an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be wanted federal habeas corpus relief on the wound that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Accord, Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986).
In this Circuit, a petitioner claiming a denial of his Fifth Amendment rights may overcome the preclusive effect of Stone v. Powell 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." Cappellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)).
Black cannot make either required showing. First, it is settled law that the State of New York has provided an adequate mechanism for criminal defendants to contest alleged Fourth Amendment violations in its courts. See Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977), cert. denied, 434 U.S. 1038 (1978). Second, Black plainly availed himself of those procedures to challenge the admissibility of the bullet on the very ground he now seeks to raise in this forum. Accordingly, because Black was given a "full and fair" opportunity to contest the search of the Acura, there has been no unconscionable procedural breakdown in this case. The Court consequently is barred from considering Black's Fourth Amendment claims on federal habeas review.
IV. Conclusion
For the foregoing reasons, Black's habeas petition should be dismissed. Moreover, because Black has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not be issued. See 28 U.S.C. § 2253 (c)(2).
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Victor Marrero, at the United States Courthouse, 40 Centre Street, New York, N Y 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N Y 10007, and to any opposing parties. See 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Marrero. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6 (e), 72(b).