Opinion
No. 00 Civ. 5980 (NRB).
December 19, 2000.
Steven Evans, 98-A-0290, Altona Correctional Facility, 555 Devils Den Road, Altona, New York 12910
Kimberly Morgan, Esq., Assistant District Attorney, 198 East 161st Street, Bronx, New York 10451
OPINION AND ORDER
Petitioner Steven Evans ("petitioner" or "Evans"), currently incarcerated at Altona Correctional Facility, Altona, New York, has brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction upon a plea of guilty in Supreme Court, Bronx County, for Criminal Possession of a Weapon in the Third Degree under Indictment 820/96, Criminal Possession of a Weapon in the Third Degree under Indictment 9165/96, Criminal Possession of a Weapon in The Third Degree and the Criminal Sale of a Controlled Substance in the Second Degree under Indictment 1715/17. Petitioner was sentenced as a second felony offender to three consecutive prison terms of two years, three years and from two to four years to run concurrently with a six to life sentence for the drug possession conviction. Petitioner claims that his Fourth Amendment rights were violated by the denial of his pretrial motion to suppress evidence.
Following his plea of guilty and his sentencing, petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, First Department, claiming: (1) that the hearing court erred in refusing to grant his motion to suppress physical evidence seized from his apartment because the testimony of the detective was incredible; (2) that the hearing court erred in failing to suppress drugs recovered from the petitioner's apartment because the search could not be justified as a protective sweep, and (3) that if the hearing court's ruling on the suppression motion should be reversed, that his sentence pursuant to his plea agreement should be modified.
On December 2, 1999, the Appellate Division unanimously affirmed the hearing court's denial of the suppression motion and upheld petitioner's sentence. The Appellate Division held:
Defendant's suppression motion was properly denied. We see no reason to disturb the court's credibility determinations, which are supported by the record. The protective sweep of the apartment by the police was justified because there were specific, articulable facts to justify a reasonable belief by the police that other persons might be present in the apartment who could pose a threat to safety, or destroy evidence (see, People v. Febus, 157 A.D.2d 380, appeal dismissed 77 N.Y.2d 835), in that defendant threw a pistol into the apartment, and the police had reason to believe that the apartment was the residence of someone other than defendant.
The consecutive sentences were lawfully imposed, and we perceive no abuse of discretion in sentencing.People v. Evans, 267 A.D.2d 14, 99 N.Y.S.2d 351 (1st Dep't 1999). Petitioner sought leave to appeal to the New York State Court of Appeals, but leave was denied on February 11, 2000. See People v. Evans, 94 N.Y.2d 903, 707 N.Y.S.2d 387 (1999). By order, dated March 16, 2000, the Appellate Division denied petitioner's motion to reargue.
DISCUSSION
As noted earlier, this petition solely raises a Fourth Amendment claim arising out of the denial of Evan's suppression motion. Petitioner's Fourth Amendment claim is not cognizable on federal habeas corpus review, where, as here, the State has provided a full and fair opportunity to litigate the claim. See Stone v. Powell, 428 U.S. 465, 494 (1976) ("where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial"). It is well-settled that New York State provides for a full and fair opportunity to litigate a Fourth Amendment claim. See Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). Here, Petitioner raised his Fourth Amendment claim before trial. The trial court denied his motion to suppress and that denial was upheld on appeal. Accordingly, since petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim in state court, this court cannot review the claim on habeas.
Conclusion
For the foregoing reasons, the petition for a writ of habeas corpus is denied. As petitioner has not made a substantial showing of the denial of a Constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. See also United States v. Perez, 129 F.3d 255 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997),rev'd in part, 129 F.3d 255 (2d Cir. 1997). Pursuant to 28 U.S.C. § 1915 (a)(3), it is hereby certified that any appeal from this order wound not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-5 (1962)
IT IS SO ORDERED.