Opinion
01 Civ. 2920 (AJP)
March 17, 2002
OPINION ORDER
Petitioner Desmond Herring seeks a writ of habeas corpus from his conviction in Supreme Court, New York County, upon his guilty plea, of criminal possession of a controlled substance. (Dkt. No. 3: Pet. ¶¶ 1-4.) See People v. Herring, 273 A.D.2d 82, 82, 709 N.Y.S.2d 68, 69 (1st Dep't), appeal denied, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000). Herring's petition raises two habeas grounds both of which assert that the evidence against him was obtained in violation of his Fourth Amendment rights to be free from unreasonable seaches and seizures. (Pet. ¶¶ 12(A)-(B).) The parties have consented to decision of the petition by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 13.) For the reasons set forth below, Herring's claims are not cognizable on federal habeas review because they raise only Fourth Amendment issues.
FACTS
The Suppression Hearing
On June 3, 1999, a pretrial suppression hearing was held before Justice Edwin Torres. (Dkt. No. 12: 6/3/99 Tr.) At that hearing, Police Officers Cristobal Reyes and Jenna Friedman testified that on July 4, 1998 at 9:15 p.m., they observed a green Buick parked at a hydrant at the corner of 140th Sreet and Amsterdam Avenue. (6/3/99 Tr. 4-7, 20-23, 45, 47.) The car "took off at a high rate of speed, "was switching lanes without signaling, and ran a red light. (Id. at 9, 11, 25-27, 49-50, 75-76.) The police van put on its siren and lights and stopped the Buick at 129th Street and Amsterdam Avenue. (Id. at 12-13, 30, 51-52, 78.)
Officer Reyes and Officer Friedman both observed the car's driver, Desmond Herring, place his hand inside the waistband of his pants. (Id. at 14-16, 37, 53-55, 79.) Officer Reyes ordered Herring to get out of the car. (Id. at 16, 38-39.) Concerned that Herring might have a weapon, Officer Reyes reached for the groin area felt a hard object, and yelled "gun" to his partner. (Id. at 17-18, 40-41, 60.) Herring responded: "`It's not a gun. It's only drugs.'" (Id. at 18-19.) Officer Reyes handcuffed Herring and removed from his groin area a "brown paper bag containing three plastic bags of cocaine and crack cocaine." (Id. at 19, 42-43.)
Defense counsel requested the opportunity to submit a memorandum of law to support his motion to suppress the drugs and Herring's statement, and Justice Torres adjourned the hearing for that purpose. (Id. at 83-88, 94.)
On June 7, 1999, having reviewed the parties' submissions, Justice Torres "found the testimony of both Police Officers under the circumstances to be credible and believable, straightforward." (Dkt. No. 10: 6/7/99 Tr. at 3.) Justice Torres found that both officers saw Herring with his hands in the waistband of his pants (Id. at 6-7), and Officer Peyes was "[c]oncerned about the presence of a weapon and properly so." (Id. at 7.) As Herring got out of the car, Officer Reyes saw a bulge in Herring's trousers, and "he readied forward and he felt this very hard object in the groin, waist area and spontaneously yelled out, `Gun,' sensing what it was and the defendant blurted out or exclaimed, "It's only drugs" (Id. at 7.)
Based on these facts and the parties briefs, Justice Torres declined to suppreas the drugs or Herring's"spontaneous utterance" that it was drugs. (Id. at 8-10.)
Herring's Guilty Plea and Sentence
Immediately after that ruling, Herring entered into a plea bargain, and pled guilty to criminal possession of a controlled substance in the second degree. (Id. at 11-15.)
On July 28, 1999, Justice Torres sentenced Herring as a predicate felon to ten years to life imprisonment, pursuant to the plea agreement. (Dkt. No. 11: 7/28/99 Sentencing Tr. at 3-5.)
Herring's Direct State Appeal
Represented by counsel, Herring appealed to the First Department, raising the same two Fourth Amendment claims that he now asserts in his habeas petition. See Dkt. No. 6:8/1/01 Aff. of Asst. Attorney General John E Knudsen, Ex. C: Herring 1st Dep't Br.)
The First Department affirmed Herring's conviction, finding that his suppression motion was properly denied:
Defendant's suppression motion was properly denied. There is no bays upon which to disturb the court's credibility determinations, which are supported by the record. The record supports the court's finding that the police stop of defendant's vehicle was based on traffic infractions and was not pretextual. Defendant's flight from the marked police van, resulting in a chase, followed by his act of reaching into his waistband, gave the police a reasonable belief that he was reaching for a weapon. Therefore, the officer appropriately touched the area where defendant had been reaching, and when the officer felt a "very hard object" in defendant's pants, the officer was entitled to remove it.People v. Herring, 273 A.D.2d 82, 82, 709 N.Y.S.2d 68, 69 (1st Dep't 2000) (citations omitted). The New York Court of Appeals denied leave to appeal. People v. Herring, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000).
Herring's Federal Habeas Petition
Herring's timely filed federal habeas petition raises two Fourth Amendment claims for suppression of the drugs seized from him. (Dkt. No. 3: Pet. ¶ 12(A)-(B).) The case was referred to me on January 23, 2002 (Dkt. No. 8), and I ordered the State to supply a copy of the suppression hearing transcript. (Dkt. No. 9.) The State did so in mid-February 2002. (Dkt. Nos. 10-13.) The parties consented to my decision of the petition pursuant to 28 U.S.C. § 636(c). (Dkt. No. 13.)
ANALYSIS
Herring's Fourth Amendment claims must be assessed by reference to the Supreme Court's holding in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), which precludes habeas review of Fourth Amendment claims that have been litigated in state court:
[W]here 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. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force.Stone v. Powell, 428 U.S. 465, 494-95, 96 S.Ct. 3037, 3052-53 (1976) (footnotes omitted).
Accord, e.g., Withrow v. Williams, 507 U.S. 680, 682-86, 113 S.Ct. 1745, 1748-50 (1993); McClesky v. Zant 499 U.S. 467, 479, 111 S.Ct. 1454, 1462 (1991); Fowler v. Kelly, No. 95-2527, 104 F.3d 350 (table), 1996 WL 521454 at 3 (2d Cir. Sept. 16, 1996); Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir. 1992); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991); Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1987); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at 9 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at 4 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Roberson v. McGinnis, 99 Civ. 9751, 2000 WL 378029 at 5 (S.D.N Y Apr. 11, 2000) (Batts, D.J. Peck, M.J); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at 24 (S.D.N.Y Nov. 17, 1999)(Peck, M.J.);, Jones v. Strack, 99 Civ. 1270 1999 WL 983871 at 9 (S.D.N.Y. Oct. 29, 1999)(Peck, M.J); Torres v. Irvin 33 F. Supp.2d 257, 274-75 (S.D.N.Y. 1998) (Cote, D.J Peck, M.J); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 804-05 (S.D.N.Y. 1997) (Sprizzo D.J. Peck, M.J).
The Second Circuit, sitting en banc, has concluded that Stone v. Powell permits federal habeas review of exclusionary rule contentions only in limited drcumstances:
If the state provides no corrective procedures at all to redress Fourth Amendment violations, federal habeas corpus remains available, It may further be that even where the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process, the federal intrusion may still be warranted.Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (citations omitted), cert. denied, 434 U.S. 1038, 98 S.Ct. 775 (1978).
Accord, e.g., Branch v. McClellan, No. 96-2954, 234 F.3d 1261 (table), 2000 WL 1720934 at 3 (2d Cir. Nov. 17, 2000); Capellan v. Riley, 975 F.2d at 70; Gumbs v. Kelly, 2000 WL 1172350 at 9; Jones v. Strack, 1999 WL983871 at 9; Torres v. Irvin 33 F. Supp. 2d at 275; Aziz v. Warden of Clinton Correctional Facility, 92 Civ. 104 1992 WL 249888 at 3 (S.D.N.Y. Sept. 23, 1992), aff'd, 993 F.2d 1533 (2d Cir.), cert. denied, 510 U.S. 888, 114 S.Ct. 241 (1993); Allah v. LeFevre, 623 F. Supp. 987, 990-92 (S.D.N.Y. 1985).
Here, Herring litigated his Fourth Amendment claim at the pretrial suppression hearing and on direct appeai to the First Department. (See discussion at pages 2-4 above.) Thus, state corrective process was not only available but was employed for Herring's Fourth Amendment claims, which therefore cannot support a petition for a writ of habeas corpusSee, e.g., Blagrove v. Mantello, No. 95-2821, 104 F.3d 350 (table), 1996 WL 537921 at 2 (2d Cir. Sept. 24, 1996) (where defendant's "Fourth Amendment issues were raised before the trial court in the suppression hearing and before the Appellate Division in [his] pro se brief" defendant's "Fourth Amendment argument is barred [from federal habeas review] because the issue was fully and fairly litigated in the state courts"); Capellan v. Riley, 975 F.2d at 70 n. 1 (noting that "the `federal courts have approved knew York's procedure for litigating fourth amendment claims . . .'"); McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983) (New York's procedure for litigating a Fourth Amendment claim in a criminal trial complied with requirement that state provide an opportunity to litigate such claims);Gumbs v. Kelly, 2000 WL 1172350 at 10 (New York's procedure for litigating Fourth Amendment claims provides full and fair opportunity to litigate claim); Hunter v. Greiner, 99 Civ. 4191, 2000 WL 245864 at 6 (S.D.N.Y. March 3, 2000); compare Branch v. McClellan, 2000 WL 1720934 at 2-4 (remanding to the district court to determine if petitioner hal a full and fair opportunity to litigate his Fourth Amendment claim where the record indicated that defendant did not receive search warrant sppl icati on on which Fourth Amendment claim was based until late in trial and trial court denied motion as "untimely").
CONCLUSION
For the reasons set forth above, Herring's Fourth Amendment claims are not cognizable on habeas review. His petition is denied. Since Herring has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253.