Opinion
00 Civ. 3511 (RWS).
March 1, 2001.
Filberto Ramirez Petitioner Pro Se # 97-A-7507, Elmira, NY.
Honorable Eliot L. Spitzer Attorney General of the State of New York Attorney for Respondent, New York, NY, David Camuzo, Assistant Attorney General.
OPINION
Pro se petitioner Filberto Ramirez ("Ramirez") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and seeks appointment of counsel in this proceeding. Respondent Floyd G. Bennett, Jr. ("Bennett") opposes the petition. For the reasons set forth below, the motion for appointment of counsel and the petition are denied.
The Parties
Ramirez is an inmate in state custody at Elmira Correctional Facility ("Elmira") in Elmira, New York.
Bennett is the Superintendent of Elmira.
Prior Proceedings
A jury convicted Ramirez of criminal possession of a controlled substance in the third and fourth degrees, and possession of knives or instruments. On November 20, 1997, judgment was entered in the New York County Supreme Court, and Ramirez was sentenced as a second violent felony offender to two concurrent terms of seven to fourteen years imprisonment on the drug convictions, and a term of one year for the knife possession conviction, also to run concurrently.
Prior to the trial, a suppression hearing regarding certain physical evidence seized from Ramirez was held before the Honorable William Liebovitz of the New York Supreme Court on October 21, 1997. Sergeant Gerard Kane ("Kane") and police officers Michael Gargan ("Gargan") and Patrick Ferguson ("Ferguson") testified at the hearing.
Ramirez appealed his conviction to the New York Appellate Division, First Department (the "Appellate Division"), raising two issues: (1) that the trial court erred in allowing the introduction of physical evidence obtained as a result of an illegal frisk and arrest, in violation of the Fourth Amendment, and (2) that the sentence imposed was excessive. On September 23, 1999, the Appellate Division affirmed the conviction, but reduced the sentence for the knife possession conviction from one year to fifteen days. People v. Ramirez, 264 A.D.2d 634 (N.Y.App.Div. 199 9) (holding that police had probable cause for an arrest or, at least, reasonable suspicion justifying stop and frisk).
Leave to appeal from the decision of the Appellate Division to the New York Court of Appeals was denied on November 30, 1999. People v. Ramirez, 724 N.E.2d 390 (N.Y. 1999).
On or about April 25, 2000, Ramirez filed the instant petition for a writ of habeas corpus in this Court. The ground asserted in the petition is that certain physical evidence admitted at trial was obtained through an illegal frisk and arrest and, therefore, should have been suppressed pursuant to the Fourth Amendment. The petition recites as supporting facts a description of the underlying events and of the trial court's ruling in the suppression hearing.
Ramirez dated the petition April 25, 2000, and the file stamp on the first page indicates that it was received by the Pro Se Office of the Southern District of New York on May 9, 2000. Petitions for habeas corpus are deemed filed as of the date they are given to prison authorities. See Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997).
On August 11, 2000, Bennett filed his opposition to the petition, at which time the matter was marked fully submitted.
Facts
On February 20, 1997, at about 10:00pm, a team of officers of the Street Narcotics Enforcement Unit, including Kane, Gargan, and Ferguson, executed a search warrant at 358 West 51st Street. There, the officers recovered drugs and arrested three people, including Lawrence Rose ("Rose"). Later that evening, Rose agreed to become an informant for the police.
Rose told Gargan and another officer, Olinto, that about a year and a half earlier Ramirez had been "involved in a shooting" at 358 West 51st Street, the building where Rose lived. Rose further informed the police that Ramirez had left New York City to live in Puerto Rico shortly after the shooting but was currently back in New York. Saying that he knew Ramirez personally, Rose gave the police a description, including Ramirez's height, hair, and facial features, and also told them Ramirez's address and home telephone and beeper numbers. Finally, Rose stated that Ramirez sold drugs, and that Rose himself had purchased drugs from Ramirez.
Gargan made inquiries with other officers in the precinct about this information. Detective Humphries ("Humphries") said that Rose had previously served as an informant and was "very credible" and provided "useful information." Gargan also spoke to Kane who, in turn, discussed the information with Intelligence Officer Kenneth Ryan ("Ryan"), and Ryan confirmed that there had been an unsolved shooting at the place and general time described by Rose.
Kane and Gargan then questioned Rose further regarding Ramirez's drug sale activities, which Rose described. Rose also said that Ramirez was "known" to carry a gun, and "was a shooter." Ryan confirmed that, according to his sources, Ramirez was known to carry a gun.
The police formulated a plan to bring Ramirez to the precinct house to question him about the shooting: Rose would call Ramirez and say he wanted to purchase drugs, and once Ramirez appeared on the street for that purpose the officers would apprehend him.
Shortly before 5:00am on February 21, 1997, Ferguson drove Rose in an unmarked police car to 44th Street and Ninth Avenue. As Kane, Gargan, and Olinto waited nearby in another unmarked car, Ferguson used a cellular phone to dial Ramirez at the number Rose had given him, and then handed the telephone to Rose. As Ferguson listened, Rose said, "it's me, come down now," that he was "right downstairs," and "let me get two." Ferguson believed that Rose was discussing a drug purchase. Shortly afterwards, Ramirez appeared on the street, wearing red shorts and a t-shirt. Rose pointed Ramirez out to Ferguson, and Ferguson immediately radioed a description of Ramirez and his location to the other officers.
Kane, Gargan, and Olinto immediately drove to Ninth Avenue and 44th Street. They spotted Ramirez wearing red shorts and a t-shirt and standing near a public telephone at the corner. The officers, all in plain clothes, approached Ramirez from all directions, with Kane and Olinto holding their weapons at the sides and with all three displaying their shields. They told Ramirez to get on the ground. After hesitating briefly, Ramirez complied, lying spread-eagle.
Kane patted Ramirez down, finding a serrated kitchen knife tucked behind the waistband in front of Ramirez's shorts. Olinto then began to handcuff Ramirez, and Gargan asked him his name. When Ramirez spoke, Gargan noticed a white bag in his mouth. Gargan patted Ramirez on the back and told him to spit it out. Ramirez spit out five bags, each containing what appeared to be crack-cocaine.
The officers then transported Ramirez to the precinct house, searched him, and found 17 additional bags of crack-cocaine, one larger bag containing "clumped" cocaine, and $1,400 in cash, all in Ramirez's underwear.
At the conclusion of the suppression hearing, Judge Liebovitz denied the motion to suppress and set forth on the record his factual findings and legal conclusions. Judge Liebovitz found the police testimony "credible," and concluded that the officers had probable cause to arrest Ramirez for possession of drugs when they first approached him, noting that the officers had heard Rose propose a drug purchase to Ramirez, after which Ramirez had immediately appeared in the street on a cold winter day in his shorts and a t-shirt — a circumstance which Judge Liebovitz found to be "consistent with the intention of bringing down drugs and selling them to Rose." Judge Liebovitz further concluded that, since the officers had probable cause for Ramirez's arrest, their searches of him were lawful because they were incident to that arrest and, moreover, the officers were justified in patting him down because they had a "reasonable" belief he might be carrying a weapon based on the information that he was "known" to do so. Finally, Judge Liebovitz concluded that the officers were entitled to rely on the information provided by Rose because they had confirmed Rose's reliability as an informant by speaking with a fellow officer who had personal knowledge that Rose had given reliable, credible information in other cases.
Discussion I. The Motion For Appointment Of Counsel
The Criminal Justice Act provides: "Whenever the United States magistrate or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28." 18 U.S.C. § 3006A(a)(2)(B). The factors articulated by the Second Circuit for determining whether to appoint counsel to an indigent civil litigant, pursuant to 28 U.S.C. § 1915(e), and which have been found useful in the habeas context, include: the petitioner's likelihood of success on the merits, the complexity of the legal issues raised by the petition, and the petitioner's ability to investigate and present the case. See Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1985) (discussing factors for 28 U.S.C. § 1915(e) analysis); Jackson v. Moscicki, No. 99 Civ. 2427, 99 Civ. 9746, 2000 WL 511642, at *4 (S.D.N.Y. April 27, 2000) (applying factors to habeas petitioner request for counsel).
In this case, as explained below, Ramirez's claim is without substance. Moreover, it may be decided solely on the submissions. Accordingly, appointment of counsel is not warranted in the interests of justice.
II. Habeas Review Of The Fourth Amendment Claim Is Precluded A. The Standard for Reviewing State Court Judgments Pursuant to 28 U.S.C. § 2254
Section § 2254 of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA") provides a federal remedy for state prisoners if their continued custody is in violation of federal law. Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C. § 2254(a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution."). Errors of state law are not cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Federal habeas courts must presume state courts' factual findings to be correct, 28 U.S.C. § 2254(e)(1), and may not grant relief unless they find that the state court's adjudication of the merits of the claims either:
(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)(1), (2); see Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
However, a federal court lacks authority to consider a habeas petitioner's Fourth Amendment claim that evidence obtained in an unconstitutional search was wrongfully introduced at trial where the state already "has provided an opportunity for full and fair litigation of [the] claim." Stone v. Powell, 428 U.S. 465, 482 (1976); see Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc). In Gates, the Second Circuit held that the requirement of a "full and fair opportunity to litigate" is satisfied where the state creates a statutory apparatus by which litigants may challenge and seek to suppress evidence tainted by an unlawful search or arrest. 568 F.2d at 837; see also McPhail v. Warden Attica Corr. Facility, 707 F.2d 67 (2d Cir. 1983) (New York State had created a statutory apparatus to challenge unlawful seizures by enacting New York Criminal Procedure Law § 710). Under Gates, a federal court in this circuit will review the merits of such a claim only upon a showing that the petitioner was "precluded from utilizing [the available state process] by reason of an unconscionable breakdown in that process." Id. at 840; see also Cruz v. Alexander, 477 F. Supp. 516, 522-23 (S.D.N.Y. 1979) (breakdown in state process deprived petitioner of full and fair opportunity to litigate his claim). Thus, the possibility that a federal court would have reached a different result from the state court does not remove Stone's barrier to review. See Gates, 568 F.2d at 840; Shaw v. Scully, 654 F. Supp. 859, 863 (S.D.N Y 1987).
Here, Ramirez does not claim that New York State lacks a statutorily-created mechanism to challenge the admission of tainted evidence, nor does he claim that an "unconscionable breakdown" in state process has occurred. He merely asserts that the frisk was unreasonable and that his arrest lacked probable cause, and therefore that the articles obtained pursuant to the search should have been suppressed. Because he had an opportunity to fully and fairly litigate this claim in New York State court, habeas review is precluded here even if this Court would have reached a different result.
Conclusion
For the reasons set forth above, the petition for a writ of habeas corpus is denied.
As Ramirez 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). Pursuant to 28 U.S.C. § 1915(a)(3), it is hereby certified that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.