Opinion
20-CV-304 (RA) (OTW)
05-06-2024
EUGENE KINDELL, Petitioner, v. MICHAEL CAPRA, Respondent.
REPORT AND RECOMMENDATION TO THE HONORABLE RONNIE ABRAMS
ONA T. WANG, UNITED STATES MAGISTRATE JUDGE:
I. INTRODUCTION
Petitioner Eugene Kindell (“Petitioner”) brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254, seeking to challenge his conviction of second-degree burglary, attempted second-degree burglary, and second-degree bail jumping. Petitioner also challenges his sentence to an aggregate prison term of 19 / years to life as a persistent violent felony offender. Petitioner raises three claims in his petition: 1) that the evidence of second-degree bail jumping was insufficient; 2) that he received ineffective assistance of counsel due to his attorney's failure to move to reopen suppression proceedings; and 3) that his sentence was excessive. (ECF 1 at 2).For the reasons below, I recommend that Petitioner's habeas petition be DENIED.
Specifically, Petitioner asserts that “the People failed to present any evidence that Mr. Kindell did not appear in Court during the 30 days following his required court date”; “Counsel was ineffective for failing to move to reopen the suppression proceedings after testimony at trial that Mr. Kindell's bag had been closed when the Police Arrived undermined the Court's finding that the bag search was justified under the plain view doctrine”; and “Mr. Kindell's sentence of 19 / years was excessive where the enhanced sentencing range mandated for a persistent violent felony offender took into account Mr. Kindell's character, the nature of the case, or the circumstances of the particular offense constituted an aggravating factor warranting a further increase in his sentence.” (ECF 1 at 2).
II. BACKGROUND
A. The Burglary, Petitioner's Arrest, and Petitioner's Bail Jumping
On March 12, 2007, at approximately 3 p.m., Richard Holad, the superintendent of an apartment building at 336 East 71st Street in Manhattan, entered the building and saw Petitioner in front of an apartment holding a black tool bag. (ECF 25 at 7; ECF 26-3 at 98). Upon seeing Mr. Holad, Petitioner left the building. (ECF 25 at 7). Mr. Holad noticed that the door of the apartment was pried open, the paint on the frame was chipped, and one of the locks was dented. (ECF 26-3 at 98). After tracking down Petitioner on the street, Mr. Holad asked him what he had been doing in the building and Petitioner responded that he was a contractor, but did not say who had hired him and for what purpose. Id.
Mr. Holad flagged down two police officers, Julian Cocianga and Sebastian Osika, and told them what had happened. Id. Mr. Holad brought Officer Osika to the building while Officer Cocianga stayed with Petitioner. Id. The officers subsequently arrested Petitioner. (ECF 26-3 at 18, 98). At the time of his arrest, Petitioner was in possession of a bag containing various tools, including a handsaw, crowbar, and screwdriver, as well as a lock cylinder later determined to have come from a different apartment at 310 East 75th Street in Manhattan that was removed on March 11, 2007. (ECF 26-3 at 98, 18-19). The contents of the bag were vouchered by Officer Osika at the stationhouse. (ECF 25 at 7-8).
Petitioner was arraigned on a felony complaint the next day and indicted on March 21, 2007. (ECF 26-3 at 99). Petitioner did not appear for the date of his arraignment on the indictment on April 20, 2007, and a bench warrant was issued for his arrest. Id. Petitioner was involuntarily returned on the warrant on April 6, 2011 after extradition from Florida. (ECF 26-3 at 18, 99). A superseding indictment was filed on April 29, 2011, charging Petitioner with two counts of burglary in the second degree, one count of attempted burglary in the second degree, one count of possession of burglar's tools, and bail jumping in the second degree. (ECF 25 at 5; ECF 26-3 at 99-100).
B. Pretrial Proceedings
On August 9, 2011, the court held a pretrial Dunaway/Mapp/Huntley hearing before the Honorable Daniel Conviser to determine, inter alia J whether to suppress the black tool bag and its contents. (ECF 25 at 6; ECF 26-3 at 100). Officer Cocianga testified at the hearing that the bag was open when he stepped out of the car to speak with Petitioner and that he was able to see a tool with a lock cylinder attached to it, as well as other tools and gloves. (ECF 25 at 6). On August 17, 2011, in a written decision, Justice Conviser denied Petitioner's suppression motion in its entirety. (ECF 26-3 at 100). The court held that the officers had probable cause to arrest petitioner and that the bag of tools was lawfully seized pursuant to the plain view doctrine. (ECF 25 at 8). Specifically, the court found that the officers had reasonably inferred from the contents of the open bag that it contained burglary tools. Id.
A Mapp hearing, see Mapp v. Ohio, 367 U.S. 643 (1961), is to determine whether physical evidence sought to be used against a defendant was obtained illegally. A Dunaway hearing, see Dunaway v. New York, 442 U.S. 200 (1979), is to determine whether there was probable cause for a defendant's arrest. A Huntley hearing, see People v. Huntley, 15 N.Y.2d 72 (1965), is to determine whether any statements made by a defendant should be suppressed. See also McKelvey v. Bradt, No. 13-CV-3527 (CM) (DF), 2016 WL 3681457, at *5 (S.D.N.Y. July 6, 2016) (describing each type of hearing).
The Court rejected the alternative theories that the search was justified as an inventory search or that it was justified under the exigent circumstances theory. (ECF 25 at 8).
Prior to trial, the prosecution lost the bag of tools and its contents. (ECF 25 at 9). The trial court dismissed the possession of burglar's tools charge and agreed that the jury would be given an adverse inference instruction in Petitioner's favor regarding the remaining charges. Id. See also ECF 26-6 at 127, 680-81.
Regarding the adverse inference instruction, the trial court said at the November 28, 2011 pretrial hearing, “I think that I do believe that the defendant is actually in a somewhat better position without those items here because he is certainly free to argue, especially when he has and [sic] adverse inference, that there is no way of knowing that that cylinder actually fit that door.” (ECF 26-6 at 127).
C. Petitioner's Trial
Petitioner's trial began on December 1, 2011. At trial, the jury heard testimony from, among other witnesses, Mr. Holad, and Officers Cocianga and Osika, on the burglary-related counts. Mr. Holad testified on cross-examination that Petitioner's toolbag was closed when he caught up with Petitioner, and that the police officers subsequently opened the bag to look inside. (ECF 25 at 10). Officer Cocianga testified that the bag was already open when he arrived. Id. Officer Osika did not recall whether the bag was open or closed. Id. at 10-11.
On the bail jumping count, the jury heard testimony from Senior Court Clerk Belinda Piters, New York City Criminal Court clerk specialist Lawrence Salvato, as well as the assigned Assistant District Attorney at the time, Joel Seidmann, NYPD Detective Thomas Hovagim, and New York City Department of Parole Officer Judith Jackson. Ms. Piters testified that Petitioner appeared in court on March 13, 2007 for arraignment on the complaint, bail was set at $7,500 bond or cash, and the case was adjourned to March 16, 2007. (ECF 25 at 11). Mr. Salvato testified that Petitioner posted bail on March 14, 2007. Id. at 12. Mr. Salvato also testified that after Petitioner appeared with counsel on March 16, 2007, and the case was adjourned to April 20, 2007, Petitioner failed to appear on April 20, 2007. Id. Mr. Salvato further testified that the court forfeited bail on April 26, 2007, after Petitioner had still not appeared, and that a bench warrant was issued on April 20, 2007. Id. There is no indication in the court records introduced at trial that Petitioner appeared in the thirty days after he failed to appear for his arraignment. Id.
Mr. Seidmann testified that his paralegal had checked multiple times whether Petitioner had been arrested and brought to court on a different matter. Id. at 12-13. Mr. Seidmann also testified that his office did not receive any notifications from the “arrest alert system” used by the District Attorney's office. Id. Detective Hovagim testified that he had searched for Petitioner on “at least” four consecutive days and had not found him. Id.
Officer Jackson testified that in early April 2011, nearly four years after bail was set, she learned that Petitioner was in Florida. Id. Officer Jackson testified that she traveled to Jacksonville, Florida with her partner, Officer Bernard Gordon, and interviewed Petitioner at a local jail. Id. Officer Jackson further testified that, after Petitioner waived extradition, she and Officer Gordon brought Petitioner to New York. Id.
At trial, Petitioner did not put on any defense case. Id.
The jury convicted Petitioner of burglary in the second degree for the entry into the East 71st Street apartment building; attempted burglary in the second degree for the attempted entry into Apartment 5E of that building; and bail jumping in the second degree. Id. The jury acquitted Petitioner of separate burglary and attempted burglary charges that are unrelated to this petition. Id. at 13 n.11.
On December 19, 2011, Petitioner was sentenced as a persistent violent felony offender to prison terms of 18 years to life for second-degree burglary and 14 years to life for attempted second-degree burglary, with the sentences to run concurrently, and consecutively to a prison sentence of one-and-a-half to three years for bail jumping. Id. at 14.
D. Direct Appeal and Remand
Petitioner appealed to the Appellate Division, First Department, claiming that: 1) the evidence of bail jumping was insufficient because the prosecution did not present evidence the Petitioner had not appeared in court during the thirty days after his required court date; 2) trial counsel was ineffective for not moving to reopen the suppression hearing following Mr. Holad's trial testimony that the bag was closed when the police arrived at the scene; and 3) his sentence was excessive. (ECF 25 at 14-15).
On January 7, 2016, the Appellate Division held the appeal in abeyance and remitted the case for a reopened suppression hearing. Id. at 15. See People v. Kindell, 135 A.D.3d 423 (1st Dep't 2016). The Appellate Division decision held that Mr. Holad's trial testimony “was completely at odds with a plain view theory” and that the inconsistency was not “minor or routine.” Kindell, 135 A.D.3d at 424.
The trial court held a reopened suppression hearing on April 1, 2016 and June 16, 2016. (ECF 26-3 at 154). At the reopened suppression hearing, Officers Cocianga and Osika testified that the bag on the sidewalk between Mr. Holad and Petitioner was open when they approached, that they paid particular attention to the bag because it could contain a weapon, and that they could see tools inside the bag. (ECF 25 at 16). Mr. Holad testified that Petitioner was holding the bag when the officers approached, the officers told Petitioner to put the bag down, and when Petitioner put the bag down the bag opened slightly, exposing its contents. Id. Mr. Holad further testified that the officers had not opened the bag. Id. When confronted with his trial testimony that the bag was closed, Mr. Holad stated, “I guess you are right. It's been a long time.” Id. Mr. Holad then testified that, contrary to his testimony at trial, he had seen inside the bag when it was placed on the ground, but also acknowledged that he had been more focused on Petitioner's face at that moment. Id.
ECF 25 states that “petitioner stated, ‘I guess you are right. It's been a long time.'” (ECF 25 at 16). This appears to be a typo as the rest of the paragraph is about Mr. Holad's testimony.
Following the hearing, the trial court again denied suppression. Id. at 17. The court found that the officers' testimony that the bag was open and they had seen its contents was credible, and that Mr. Holad's testimony regarding the bag was not credible as his memory was “poor,” and that he had “directly contradicted himself multiple times during his testimony.” Id.
E. Further Proceedings
Petitioner appealed again to the Appellate Division, claiming that the tools recovered from the bag as well as his post-arrest statements should have been suppressed on the record generated at the reopened hearing. (ECF 25 at 17). Petitioner claimed, in the alternative, that remand for a new suppression hearing had been an insufficient remedy and that the Appellate Division should have suppressed the evidence and remanded for a new trial. Id.
On March 9, 2017, the Appellate Division affirmed, finding no basis to disturb the trial court's credibility determinations following the reopened suppression hearing, and holding that the evidence before the court was sufficient to establish that the search and seizure of the bag and its contents was lawful under the plain view doctrine. Id. at 17-18. See People v. Kindell, 148 A.D.3d 423 (1st Dep't 2017). The Appellate Division further held that Petitioner had not been prejudiced on remand by the delay resulting from his trial counsel's failure to move to reopen the suppression hearing. Id.
Petitioner then sought leave to appeal to the New York Court of Appeals. On June 23, 2017, the Court of Appeals denied Petitioner leave to appeal. People v. Kindell, 29 N.Y.3d 1082 (2017).
In May 2018, Petitioner filed a pro se motion to set aside his sentence pursuant to N.Y. C.P.L. § 440.20 on the grounds that he was illegally sentenced as a persistent violent felony offender. (ECF 25 at 18). Petitioner claimed that a 1975 conviction had been improperly used as a predicate for his sentencing enhancement because the conviction happened before New York's predicate sentencing statutes were revised in relevant part in 1978. Id. Petitioner further claimed, on the same grounds, that neither the 1975 conviction nor a 1984 conviction could be used as a predicate for his sentencing enhancement. Id. at 18-19.
In October 2018, the trial court denied Petitioner's motion, finding that the predicate offenses used as a basis for Petitioner's sentencing enhancement did not include the 1975 or 1984 convictions, and also noting that, in any event, the relevant 1978 revisions were retroactively applicable to earlier convictions pursuant to People v. Morse, 62 N.Y.2d 205, 217 (1984). (ECF 25 at 19).
The Appellate Division denied Petitioner leave to appeal denial of his sentencing motion in May 2019, and subsequently denied re-argument of that denial in October 2019. Id.
Petitioner filed this habeas petition on January 13, 2020. (ECF 1).
For the reasons below, I respectfully recommend that the petition be DENIED.
III. ANALYSIS
A. Exhaustion and Procedural Bar
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not consider a petition for a writ of habeas corpus by a prisoner in state custody unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). To satisfy the exhaustion requirement, the petitioner must have “fairly presented” his claims to the state courts, thereby affording those courts the opportunity to correct the alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971). The exhaustion requirement is fulfilled once the federal claims have been presented to “the highest court of the state.” Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005) (internal citation omitted). In New York, the petitioner must have presented each of his claims to the Appellate Division and then sought leave to appeal on the same grounds to the Court of Appeals. See id. at 74 (holding that “one complete round” of New York's appellate review process involves appeal to Appellate Division and then application to Court of Appeals for certificate granting leave to appeal). A claim is also deemed fully exhausted when the Appellate Division has denied leave to appeal a denial of a motion filed pursuant to N.Y. CPL § 440.20 “because further leave to the Court of Appeals is not available.” Hall v. Annets, No. CV-03-6042(FB), 2004 WL 2028029, at *1 n.2 (E.D.N.Y. Sept. 7, 2004) (citing N.Y. Rules of Court, Court of Appeals, § 500.10(a)).
Respondent does not contest that Petitioner's claims have been exhausted.
B. The Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Harrington v. Richter, 562 U.S. 86, 98 (2011); Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence 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 thus has the burden of proving, by a preponderance of the evidence, that his rights have been violated. See Jones v.Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
A federal court may grant a writ of habeas corpus to a state prisoner where the state court's adjudication of the petitioner's federal claim on the merits:
(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; or
(2) 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.28 U.S.C. § 2254(d) (1996).
A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “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 confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Supreme Court's].” Williams v. Taylor, 529 U.S. 362, 404-05 (2000). A decision is an unreasonable application of clearly established federal law if a “state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. at 413; accord Cullen v. Pinholster, 563 U.S. 170, 182 (2011); Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (defining “unreasonable application” to require more than clear error). Moreover, a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411; accord Lockyer, 538 U.S. at 75.
The standard for relief under AEDPA “is difficult to meet, because the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malfunctions in the state criminal justice systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 38 (2011) (internal quotation marks omitted); accord Metrish v. Lancaster, 569 U.S. 351, 356-59 (2013); see Burt v. Titlow, 571 U.S. 12, 19 (2013) (“AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.”). “‘Clearly established Federal law' for purposes of § 2254(d)(1) includes ‘only the holdings, as opposed to the dicta, of this Court's decisions.'” White, 572 U.S. at 419-20 (2014) (quoting Howes v. Fields, 565 U.S. 499, 505 (2012)); accord Smith v. Artus, 610 Fed.Appx. 23, 26 (2d Cir. 2015) (summary order). “[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the prisoner's claim on the merits.” Greene, 565 U.S. at 38 (citing Cullen, 563 U.S. at 181).
Because Petitioner is proceeding pro se, the Court construes his submissions “liberally” and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
C. The Evidence Was Sufficient to Support Petitioner's Bail Jumping Conviction
Petitioner first argues that the evidence presented at trial was insufficient to support his conviction for second-degree bail jumping “because the People failed to present any evidence that [Petitioner] did not appear in Court during the 30 days following his required court date.” (ECF 1 at 4).
“[A] petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence.” Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000). In order to prevail on a sufficiency of the evidence claim in a habeas petition, the reviewing court must conclude from the record before it that “no rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Policano v. Herbert, 507 F.3d 111, 115-16 (2d Cir. 2007) (quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979)) (internal quotation marks omitted). The operative federal law governing sufficiency of evidence claims is In re Winship, 397 U.S. 358 (1970). See Felton v. Mazzuca, No. 98-CV-4567 (RJS), 2012 WL 4462009, at *9 (S.D.N.Y. Sept. 27, 2012). In Winship, the Supreme Court held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364. “Our review [on a habeas petition] is, therefore, to determine whether the state court adjudication is contrary to, or an unreasonable application of, the Winship rule as interpreted by Jackson.” Policano, 507 F.3d at 116.
The Supreme Court has further held that sufficiency of the evidence claims “are subject to two layers of judicial deference” on habeas review. Coleman v. Johnson, 566 U.S. 650, 651 (2012). In addition to the requirement in Jackson that the reviewing court must defer to the verdict of a jury, the reviewing court also “may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was objectively unreasonable.” Id. (cleaned up).
Petitioner was charged with second-degree bail jumping under N.Y. Penal Law § 215.56. The elements that the prosecution was required to prove under the bail jumping statue were: 1) Petitioner had been previously released from custody on bail on the condition that he return to court on April 20, 2007; 2) Petitioner knew that he was required to appear on April 20, 2007; and 3) Petitioner did not appear on April 20, 2007 or within thirty days after that date. See ECF 25 at 23. Petitioner does not dispute that the prosecution proved the first two elements. Nor does Petitioner dispute that the prosecution proved that he did not appear on April 20, 2007. Petitioner's sole claim with respect to his bail jumping conviction is that the prosecution did not prove beyond a reasonable doubt that he did not appear within the thirty days following April 20, 2007.
Petitioner's claim fails under both layers of judicial deference required under Jackson and Coleman. First, Petitioner cannot show that no rational jury could have found that the prosecution proved that he did not appear within the thirty days following April 20, 2007. The jury heard testimony from several witnesses, including two court clerks, one assistant district attorney, and one detective, that Petitioner did not appear on April 20, 2007, or for thirty days after. The evidence presented at trial also included court records demonstrating that, after April 20, 2007, Petitioner did not appear in state court in New York until April 6, 2011.
Because Petitioner cannot succeed on this claim under the Jackson standard, it is unnecessary to reach the second layer of deference required by Coleman. For the sake of completeness, however, Petitioner's claim fails on this ground as well. The Appellate Division considered, and rejected, Petitioner's sufficiency of the evidence claim on direct appeal. See ECF 25 at 14; People v. Kindell, 148 A.D.3d 456 (1st Dep't 2017). For the same reasons stated above, the Appellate Division's determination was not “objectively unreasonable” and there is no basis to overturn it.
Accordingly, I recommend that Petitioner's first claim be denied.
D. Petitioner's Ineffective Assistance of Counsel Claim is Not Cognizable on Habeas Review because this Claim Hinges on a Fourth Amendment Claim
Next, Petitioner argues that his trial counsel was ineffective for failing to move to reopen the suppression proceedings after Mr. Holad's testimony at trial contradicted his prior testimony that the tool bag was open when police arrived. (ECF 1 at 5). Petitioner further argues that the failure of his counsel to move to reopen suppression proceedings “prejudiced the Petitioner . . . because defense counsel could not locate the witness (Mr. Holad) after more than five (5) years” in between his conviction in 2011, and the reopened suppression hearing in 2016. Id.
Although Petitioner's second claim is nominally an ineffective assistance of counsel claim that would ordinarily be analyzed under the Sixth Amendment to the U.S. Constitution and Strickland v. Washington, 466 U.S. 668 (1984), the Appellate Division already sustained Petitioner's ineffective assistance of counsel claim on direct appeal. When the Appellate Division sustained this claim, its remedy was to remand Petitioner's case for reopened suppression hearings and to hold the remainder of Petitioner's appeal in abeyance. Accordingly, Petitioner's second claim is, essentially, a relitigation of Petitioner's post-remand appeal: that remand was an insufficient remedy for his ineffective assistance of counsel claim, and that the Appellate Division should instead have suppressed the evidence from the search of the toolbag and remanded his case for a new trial.
Although Petitioner does not re-state this argument in his habeas petition, in his postremand brief to the Appellate Division, Petitioner argued that “[b]ecause the issue [of Mr. Holad's testimony] was not presented promptly, Mr. Holad's memory that so undermined the People's theory has been essentially lost, so that it was impossible on remand to meaningfully hold the suppression hearing to which Mr. Kindell had been entitled five years earlier.” (ECF 263 at 192). “Under these circumstances, the proper remedy is to grant the suppression motion.” Id. Put differently, the “prejudice” Petitioner claims to have suffered resulted from the deterioration of Mr. Holad's memory of his arrest between 2011 and 2016.
Construing Petitioner's claim to raise the strongest arguments it suggests, see Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006), the second count of the Petition raises, at best, two alternative Fourth Amendment arguments: first, that the Appellate Division erred in remanding for reopened suppression hearings in the first instance in 2016, and should have instead suppressed the evidence and remanded for a new trial; or, second, that the Appellate Division erred in affirming the trial court's decision not to suppress the evidence in 2017. For the following reasons, neither argument is cognizable on habeas review.
The controlling Supreme Court decision for Fourth Amendment habeas claims is Stone v. Powell, 428 U.S. 465 (1977), which 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 trial.” 428 U.S. at 494. The “litmus test” developed by the Second Circuit for whether a habeas court may review a Fourth Amendment claim is: “(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). See also White v. West, No. 04-CV-02886 (RRM), 2010 WL 5300526, at *13 (E.D.N.Y. Dec. 6, 2010) (“Indeed, the federal habeas court's role is not to inquire into the merits of the state court decision; rather, a federal court ‘need only find that the State's procedure for resolving Fourth Amendment claims is ‘facially adequate' and that no ‘unconscionable breakdown' of the process occurred in the petitioner's case.” (quoting Munford v. Graham, No. 09-cv-7899 (DLC) (AJP), 2010 WL 644435, at *15 n.24 (S.D.N.Y. Feb. 24, 2010), report and recommendation adopted, 2010 WL 2720395 (June 29, 2010), aff'd, 467 Fed.Appx. 18 (2d Cir. 2012))). In sum, a petitioner must show either that he was not afforded a corrective process for a claimed Fourth Amendment violation, or that there was an unconscionable breakdown in that process.
The Court of Appeals for the Second Circuit has held that New York's procedure for reviewing Fourth Amendment claims is adequate. See Capellan, 975 F.2d at 70 n.1. Petitioner was afforded a pre-trial suppression hearing; was afforded a second, reopened hearing following the Appellate Division's grant of his ineffective assistance of counsel claim; and challenged the second denial of his suppression motion on post-remand appeal. New York's procedure of which Petitioner availed himself has expressly been found to be an adequate vehicle to litigate Fourth Amendment claims challenging denial of a suppression motion. Jones v. Cronin, No. 20-CV-05348 (AT)(SN), 2022 WL 21853203 (S.D.N.Y. Apr. 29, 2022), report and recommendation adopted, No. 20CIV5348ATSN, 2023 WL 8643800 (S.D.N.Y. Dec. 14, 2023).
Because New York's procedure for litigating Fourth Amendment claims is adequate, Petitioner's Fourth Amendment claim is cognizable here only if Petitioner can show that there was “an unconscionable breakdown in the underlying process.” Capellan, 975 F.2d at 70 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)). “An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim.” Valtin v. Hollins, 248 F.Supp.2d 311, 317 (S.D.N.Y. 2003). See also Vega v. Artuz, No. 97-cv-3775 (LTS) (JCF), 2002 WL 252764, at *12 (S.D.N.Y. Feb. 20, 2002) (“[S]ome sort of ‘disruption or obstruction of a state proceeding' is typical of [an unconscionable breakdown].” (quoting Capellan, 975 F.2d at 70)).
Petitioner has not shown an unconscionable breakdown of the state court process. Like the petitioner in Jones v. Cronin, Petitioner “was granted a hearing on his suppression motion, where he cross-examined witnesses and argued in favor of his motion.” Jones, 2022 WL 21853203, at *9. Specifically, Petitioner was afforded the opportunity to cross-examine Mr. Holad as well as Officers Cocianga and Osika. See ECF 26-3 at 199. As was also the case in Jones, “[f]ollowing the hearing, the court issued factual findings and legal conclusions” underlying its decision to deny Petitioner's suppression motion. Jones, 2022 WL 21853203, at *9. The Appellate Division affirmed the trial court's denial of Petitioner's suppression motion in a reasoned opinion, finding that the trial court's determination was supported by the record and that “[t]here is no basis for disturbing the court's credibility determinations.” People v. Kindell, 148 A.D.3d 456 (1st Dep't 2017). The Appellate Division also found that the record did not show that Petitioner had been prejudiced in any way by the “delay resulting from the original ineffective representation” from “litigat[ing] the reopened proceedings.” Id. The Court of Appeals then denied leave to appeal. “All of this is evidence that the corrective procedures afforded to Jones were not hampered by an unconscionable breakdown.” Jones, 2022 WL 21853203, at *9.
The record does not suggest that there was anything approaching an “unconscionable breakdown” in the process afforded Petitioner to correct the alleged error. Petitioner cannot show that there was any “disruption or obstruction” of the state court proceedings. Petitioner's disagreement with the ultimate outcome of those proceedings is not a basis for a finding that the process to arrive at that outcome was flawed. Jones, 2022 WL 21853203, at *9.
Accordingly, I find that Petitioner was afforded a full and fair opportunity to litigate his Fourth Amendment claim, and this Court is precluded from reviewing his habeas claim under Stone v. Powell. I respectfully recommend that Petitioner's second claim be denied.
To the extent Petitioner's claim is construed as an ineffective assistance of counsel claim, I also respectfully recommend this claim be denied. The Appellate Division held, in relevant part, “[t]he record fails to support defendant's assertion that delay resulting from the original ineffective representation prejudiced his ability to litigate the reopened proceedings.” People v. Kindell, 148 A.D.3d 456 (1st Dep't 2017). As discussed above, Petitioner prevailed on his ineffective assistance of counsel claim on direct appeal, resulting in the reopened suppression hearing. His remaining claim, then, is that the remedy for his original injury was insufficient. Ineffective assistance of counsel claims arise out of the Sixth Amendment to the U.S. Constitution. See Strickland v. Washington, 466 U.S. 668 (1984). The relevant constitutional holding governing remedies for Sixth Amendment violations comes from United States v. Morrison, 449 U.S. 361, 364 (1981), which holds that “[c]ases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation[.]” Petitioner has not shown that the Appellate Division based its holding on an unreasonable application of the holding in Morrison. See Carracedo v. Artuz, 81 Fed. App'x 741, 743 (2d Cir. 2003) (“The state court's remedy [of ordering a new suppression hearing] was not an unreasonable application of the Supreme Court's mandate to tailor relief to the impact of the [Sixth Amendment] violation.”). Nor has Petitioner shown that the Appellate Division based its holding on an unreasonable interpretation of the facts before it. The Appellate Division upheld the trial court's decision based on review of the record, which contained testimony from Officers Cocianga and Osika that the bag was open on the sidewalk when they arrived.
E. Petitioner's Excessive Sentence Claim is not Cognizable on Habeas Review
Third, Petitioner argues that his sentence of 19 % years was excessive “where the enhanced sentencing range mandated for a persistent violent felony offender took into account Mr. Kindell's character, the nature of the case, or the circumstances of the particular offense constituted an aggravating factor warranting a further increase in his sentence.” (ECF 1 at 5). Petitioner further argues that the sentencing court “was not instructed by the four primary objectives of punishment, such as deterrence, rehabilitation, retribution, and isolation.” (ECF 1 at 6). “The Court focus[ed] only on retribution and punishment” and did not “consider that although Petitioner has a long criminal history, none of Petitioner's crimes involved actual violence” or his age. Id. Plaintiff also appears to re-raise the argument made in his second 440.20 motion (ECF 26-3 at 296) that his 1975and 1984 convictions should not have been used as violent predicate felony offenses in calculating his sentence. Id.; see ECF 26-3 at 300302.
In his petition, Petitioner refers to a 1976, rather than a 1975 conviction. (ECF 1 at 5-6). This appears to be a typo, as throughout the record there are numerous references to a 1975 conviction, rather than to a 1976 conviction. See, e.g., ECF 26-3 at 300; ECF 26-4 at 36.
The Petition states verbatim: “The illegal side, is that in 1984, Petitioner was sentenced as a violent predicate felony offender, which was illegal, in that New York State Violent felony offender law did not come into effect until 1978, and Petitioner first conviction by pled of guilty was to criminal possession of a weapon, which was not a violent offence in 1976, when Petitioner pleaded guilty.” (ECF 1 at 6).
Finally, even if Petitioner were to succeed on his ineffective assistance of counsel claim under AEDPA, he would still have to show that the state court's error was not harmless. See Brown v. Davenport, 596 U.S. 118, 134 (2022) (holding that a federal court must deny habeas relief unless a petitioner satisfies both AEDPA and “this Court's equitable precedents”). In Brecht v. Abrahamson, 507 U.S. 619 (1993), the Supreme Court held that “a state prisoner should not receive federal ‘habeas relief based on trial error unless' he can show the error had a ‘substantial and injurious effect or influence' on the verdict.” Brown, 596 U.S. at 133 (quoting Brecht, 507 U.S. at 637). Petitioner has not shown that the introduction of the evidence from the search of the toolbag had a substantial and injurious effect or influence on the verdict reached at trial. If evidence from the search had been excluded, the jury would still have heard testimony from several witnesses that Petitioner had attempted to enter an apartment without explanation, that the apartment door was damaged, and that Petitioner attempted to flee when asked who had hired him to work on that apartment.
Courts in this Circuit have recognized that although the Appellate Division has the power to reduce a sentence in the interest of justice, a claim that a sentence should be reduced in the interest of justice does not allege a violation of a federally protected right. See Geron v. Graham, No. 18-CV-00168 (GHW) (VF), 2022 WL 4581864, at *11 (S.D.N.Y. Sept. 14, 2022), adopted by 2022 WL 4586082 (S.D.N.Y. Sept. 29, 2022); Bonilla v. Lee, 35 F.Supp.3d 551, 572 (S.D.N.Y. 2014); Baide-Ferrero v. Ercole, No. 06-CV-6961, 2010 WL 1257615, at *4 (S.D.N.Y. Mar. 31, 2010); Edwards v. Marshall, 589 F.Supp.2d 276, 290 (S.D.N.Y. 2008) (“[Petitioner] claims that his sentence should be reduced in the interest of justice. To the extent that this claim relies on state-law principles, it is not cognizable on federal habeas review.”).
Petitioner's excessive sentence claim is also not cognizable on habeas review because his sentence does not violate the Eighth Amendment. In contrast to state law, the Eighth Amendment only forbids sentences that are “grossly disproportionate” to the crime. United States v. Bullock, 550 F.3d 247, 252 (2d Cir. 2008) (quoting Harmelin v. Michigan, 501 U.S. 957, 960 (1991) (Kennedy, J., concurring)). A sentence does not violate the Eighth Amendment if the term of the sentence falls within the permissible state statutory range. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (“No federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law.”); McCall v. Rivera, 965 F.Supp.2d 311, 335 (S.D.N.Y. 2013).
Petitioner was sentenced to 19 % years to life pursuant to New York Penal Law § 70.08. Section 70.08 authorizes a minimum prison sentence of 16 to 25 years for second-degree burglary and 12 to 25 years for second-degree attempted burglary conviction. See N.Y. Penal Law §§ 70.08(2), (3)(c). Section 70.08 further mandates a maximum sentence of life in prison for those found by the court to be persistent violent felony offenders. See N.Y. Penal Law § 70.08(2).
In 2007, the prosecution filed a predicate violent felony statement identifying Petitioner's February 1989, March 1989, April 1996, and October 1997 convictions. (ECF 25 at 30). After Petitioner was convicted at trial of second-degree burglary and second-degree attempted burglary, and after he had an opportunity to be heard at the sentencing proceeding, he was found by the sentencing court to be a persistent violent felony offender in reliance on his 1989, 1996, and 1997 attempted burglary convictions. See ECF 25 at 32; ECF 264 at 35-37. Significantly, the sentencing court did not rely on Petitioner's 1984 conviction or his 1975 conviction as predicate offenses.
Even if the sentencing court had relied on Petitioner's 1975 conviction, New York's 1978 persistent violent felony offender amendments apply retroactively to offenses committed before 1978. People v. Morse, 62 N.Y.2d 205, 217 (1984). The Second Circuit has further held that the retroactive application of the 1978 amendments does not violate the Ex Post Facto clause of the U.S. Constitution, U.S. Const. art I. § 10, cl. 1, because the prior criminal conviction only increases the penalty for future crimes. Covington v. Sullivan, 823 F.2d 37, 39 (2d Cir. 1987) (citing Gryger v. Burke, 334 U.S. 728 (1948)). “The person convicted of the predicate offense, whether newly designated within the category of predicate offenses or newly reclassified as falling within a previously designated category of predicate offenses, is on notice that his future criminal conduct will subject him to enhanced penalties.” Id.
The record also directly contradicts Petitioner's argument that the sentencing court did not take into account other factors such as his age. In handing down its sentence, the court noted that Petitioner had family in the courtroom, and noted Petitioner's age. (ECF 26-4 at 1920). The court explained, however, that “[Petitioner] has shown over, and over again that no matter how many times he is caught, no matter how many times he is convicted, he invades and attempts to invade [other] peoples' homes.” (ECF 26-4 at 20).
Petitioner has not shown that his sentence falls outside of the statutory range set by New York or that his sentence otherwise violates the Eighth Amendment. Accordingly, this claim is not cognizable on habeas review. I respectfully recommend that Petitioner's third claim be denied.
IV. CONCLUSION
For the foregoing reasons, I respectfully recommend that Petitioner's habeas petition be DENIED. Furthermore, because Petitioner has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also FED. R. CIV. P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be filed with the Clerk of Court, Pro Se Intake Unit, United States Courthouse, 500 Pearl Street, Room 200, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Abrams.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. (See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983)).
The Clerk of Court is directed to mail a copy of this Report and Recommendation to Petitioner.