Opinion
9:23-CV-897 (TJM/MJK)
09-12-2024
HORACE SHEPARD, Petitioner, v. JOHN RICH, Superintendent of Elmira Correctional Facility, Respondent.
HORACE SHEPARD, Petitioner, pro se PRISCILLA I. STEWARD, Assistant Attorney General, for the Respondent
HORACE SHEPARD, Petitioner, pro se
PRISCILLA I. STEWARD, Assistant Attorney General, for the Respondent
TO THE HONORABLE THOMAS J. MCAVOY, Senior U.S. District Judge:
ORDER
MITCHELL J. KATZ, U.S. Magistrate Judge
REPORT-RECOMMENDATION
This matter has been referred to me for Report and Recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c). Petitioner, while incarcerated at Elmira Correctional Facility, filed this petition pursuant to 28 U.S.C. § 2254, challenging a July 9, 2021 judgment of conviction in Onondaga County Court, based on his guilty plea to one count of criminal possession of a weapon in the second degree. (Petition (“Pet.”) at 1) (Dkt. No. 1). Petitioner was sentenced to serve a term of nine years, plus five years of post-release supervision. (Id.). The Appellate Division, Fourth Department, unanimously affirmed petitioner's conviction, and the New York Court of Appeals denied leave to appeal. People v. Sheppard, 213 A.D.3d 1216 (4th Dep't 2023), lv. denied, 39 N.Y.3d 1157 (2023).
Petitioner has since been transferred to Cayuga Correctional Facility. (Dkt. No. 4).
Citations to the petition refer to the pagination generated by CM/ECF. Citations to the state court record (“SR.”), June 10, 2019 arraignment (“A.”), September 27, 2019 suppression hearing (“SH.”), March 10, 2020 motion to reargue decision (“R.”), July 9, 2021 plea allocution (“P.”) and July 30, 2021 sentencing proceeding (“S.”) refer to their original pagination.
Petitioner raises the following claims for this court's review:
1. Petitioner's Fourth Amendment rights were violated because:
a. the police lacked probable cause to conduct the traffic stop that led to the recovery of the firearm;
b. the court improperly declined to reopen the suppression hearing; and c. the prosecutor presented perjured testimony at the suppression hearing.
2. The grand jury proceedings were defective.(Pet. at 6-16 and Exhibit “1” attached thereto). Respondent filed a response to the petition, together with a memorandum of law, and the pertinent state court records. (Dkt. Nos. 8, 8-1, 9). On December 20, 2023, petitioner filed a traverse. (Dkt. No. 11). For the following reasons, this court agrees with respondent and will recommend denying the petition.
DISCUSSION
I. Relevant Facts
Respondent's submission includes a detailed description of the facts and procedural history of this case. (Respondent's Memorandum of Law (“Resp't MOL”) at 2-9) (Dkt. No. 8-1). This court will summarize the relevant facts as set forth in the state court record for clarity and will discuss specific facts as necessary in the analysis of petitioner's claims.
A. Pre-Trial Proceedings
On or about May 16, 2019, an Onondaga County grand jury indicted petitioner on one count of criminal possession of a weapon in the second degree in violation of Section 265.03(3) of the Penal Law of the State of New York. (SR. at 7, 9). Petitioner was arraigned on June 10, 2019 in Onondaga County Court before the Honorable Matthew J. Doran, at which time he appeared with appointed defense counsel, Eric Sherwood. (SR. at 7).
B. Suppression Hearing
Judge Doran conducted a suppression hearing on September 27, 2019 with respect to petitioner's motion challenging the legal basis for his arrest and subsequent identification procedure. Before the hearing began, the prosecutor advised the court that discovery materials, including the body-camera footage from Police Officer Heider, the 911 calls, and the police radio communications had been provided to defense counsel. (SH. at 2-3). Defense counsel acknowledged receipt. (Id.).
Officer Heider testified that on May 8, 2019 he was dispatched to the 1000 block of Highland Street in Syracuse, New York in response to a 911 call that a black male wearing a white thermal undershirt and a blue Yankees hat was in possession of a handgun. (Id. at 7). Officer Heider testified that when he arrived at the 1000 block of Highland Street, a group of people sitting on a porch directed him to the 911 caller. (Id.).
Officer Heider testified that when he approached the caller, Ms. Torrence, she immediately uttered, “that's the car right there.” (Id. at 8). Officer Heider pointed to a green BMW suburban, and Ms. Torrence confirmed that was the vehicle she was referencing. (Id.). After confirming the description of the car, Officer Heider transmitted the description of the vehicle over the police radio and confirmed with Ms. Torrence that she witnessed the occupant of the vehicle with a handgun. (Id. at 8-9).
After speaking with Ms. Torrence, Officer Heider returned to his vehicle to pursue the green BMW, but the car had already been stopped by Special Investigations Division Detectives Mosqueda and Santana, who also heard the initial radio transmission of a black man wearing a white thermal menacing children and residents in the 1000 block of Highland Street. (Id. at 44).
When Officer Heider arrived at the scene, he observed Detective Mosqueda commanding petitioner to exit his vehicle. (Id. at 10). According to Officer Heider, the male exiting the vehicle was wearing a white thermal undershirt and a blue hat. (Id.). Detective Mosqueda similarly testified that the description of the individual he received was identical to that of the person following his commands and exiting the vehicle. (Id. at 49). Petitioner was then handcuffed and frisked by Officer Heider who was able to visualize the back frame of the gun. (Id. at 11-12). Officer Heider retrieved the gun from petitioner's pocket and took him into custody. (Id.). Petitioner was then placed in Officer Heider's vehicle. (Id. at 12).
Officer Heider then returned to the 1000 block of Highland Street to locate the 911 caller for further identification procedures. (Id. at 12). Ms. Torrence was amenable to speaking with Officer Heider, but not in front of her neighbors. (Id. at 13). To alleviate her concerns, she allowed Officer Heider to “arrest” her so that she could be driven away in a police car. (Id. at 14-15).
Officer Heider and two detectives accompanied Ms. Torrence to where petitioner was stopped. (Id. at 17). When they arrived at the location, Ms. Torrence said “that's him right there.” (Id. at 18). Notably, Officer Heider testified that Ms. Torrence, on her own, initiated the identification. (Id. at 18). According to Officer Heider, Ms. Torrence recognized petitioner as the individual “who had the gun.” (Id.).
Petitioner did not call any witnesses at the suppression hearing.
In a written Decision/Order dated October 31, 2019 (SR. at 15-24), the court denied petitioner's motion to suppress. Based on the totality of the facts and circumstances, the court opined that the “police had at least ‘reasonable suspicion' grounded upon specific articulable facts to believe that the driver of the vehicle was observed to be in possession of a handgun in the area of the 1000 block of Highland Street just minutes before the police arrived.” (Id. at 21). The court further reasoned that the information Detective Mosqueda obtained through the radio transmission, the statements made by an identified civilian, his own observations of a male matching the description enter a green BMW SUV, and his observations of Officer Heider pointing to the same vehicle as it drove away, provided law enforcement with the requisite reasonable suspicion to stop the vehicle. (Id. at 22). The court further held that the pat down search of petitioner was justified under the circumstances and therefore, the subsequent recovery of the handgun was lawful. (Id. at 22-23). Finally, the court concluded that the show-up identification procedure “was not performed in an unduly suggestive manner.” (Id. at 23).
By Notice of Motion dated February 28, 2020, petitioner's newly appointed counsel filed a motion for reargument and reconsideration of the court's denial of the suppression motion. (Id. at 97-104). Petitioner argued that the court incorrectly applied the reasonable suspicion standard rather than the probable cause standard as the basis for the traffic stop. (Id.). Petitioner further argued that the police lacked reasonable suspicion for the traffic stop. (Id.). The government opposed the motion. (Id. at 105-14).
On March 10, 2020, the court ruled from the bench, affirming its October 31, 2019 Order/Decision that the police had reasonable suspicion for the traffic stop based on Ms. Torrence's 911 call and her subsequent conversation with Officer Heider. (R. at 1-5). The court further held that Ms. Torrence's description of the gunman and her statement that the gunman was leaving the area in a vehicle that was passing by at that moment was similarly corroborated by the responding officer's observations. (Id. at 34).
C. Plea Bargain, Guilty Plea Allocution and Sentencing
On July 9, 2021, petitioner, together with his counsel and the assistant district attorney, appeared before Judge Moran for a final pre-trial conference. (S. 1-16). After an off-the-record bench conference with counsel, the court advised that defense counsel inquired about the court's position on sentencing if petitioner pled guilty to second-degree criminal possession of a weapon, the sole count in the indictment. (Id. at 2-3). The court stated that in exchange for petitioner's guilty plea, it would sentence petitioner to a determinate prison term of nine years, plus five years of post-release supervision. (Id. at 3). The court noted that the proposed sentence would be rendered over the government's objection, as the prosecution was seeking a longer prison term. (Id. at 3-5). Defense counsel then announced that petitioner had decided to enter a guilty plea. (Id. at 3). In response to the court's inquiry, petitioner indicated that he understood the proposed disposition and that he would plead guilty. (Id. at 4).
After being sworn in, petitioner acknowledged that by answering the court's questions and pleading guilty, he was giving up the right to remain silent and not to incriminate himself. (Id. at 7). Petitioner denied taking drugs or alcohol in the preceding twenty-four hours and stated that he was not being treated for any psychiatric problems or drug addiction. (Id. at 8). Petitioner also acknowledged that he discussed the case, the guilty plea, waiving his right to a jury trial with his attorney, and that he was satisfied with his attorney's services. (Id. at 8). Further, petitioner represented to the court that no one threatened, forced, pressured him, or made him any promises, beyond what was discussed on the record, to induce him to plead guilty. (Id. at 8, 11-12). Petitioner then pled guilty to second-degree criminal possession of a weapon. (Id. at 9).
The court then reviewed with petitioner the rights he was waiving by pleading guilty. The court informed petitioner that he was waiving his right to a jury trial, to have counsel represent him at trial, to cross-examine witnesses against him, to remain silent, to call witnesses, to testify at trial, and to require the government to prove his guilt beyond a reasonable doubt to a unanimous jury. (Id. at 9-10). The court also advised petitioner that he would be giving up any defense he may have to the charge and that his guilty plea had the same effect as a jury's guilty verdict after trial. (Id.). Petitioner stated that he understood. (Id.). Petitioner also acknowledged that if he were convicted of another crime in the future, his conviction in this case could be used against him to impose an additional punishment for the new crime. (Id. at 10-11). The court accepted petitioner's plea, finding that it was entered knowingly, intelligently, and voluntarily. (Id. at 12). Thereafter, the court accepted petitioner's predicate felony statement and adjourned the matter for sentencing. (Id. at 13-14).
On July 30, 2021, petitioner was sentenced to a determinate prison term of nine years, plus five years of post-release supervision. (Id. at 1-4).
D. Direct Appeal
Petitioner filed a counseled brief in the Appellate Division, Fourth Department. (SR. at 129-51). Petitioner's counseled brief raised the following arguments: (1) the police unlawfully stopped petitioner without reasonable suspicion based on an anonymous report of a man with a gun, (2) the trial court should have reopened the suppression hearing to allow petitioner's new counsel to argue for suppression based on evidence in the original 911 call, (3) the lower court should have suppressed the weapon found on petitioner, as it was the result of an illegal stop of petitioner's vehicle and subsequent pat down of his person, and (4) a nine-year determinate sentence plus five years post-release supervision is harsh and severe given the nature of the crime and petitioner's chronic health condition. (Id. at 140-56). The government filed an opposing brief (Id. at 158-88), and petitioner filed a reply brief (Id. at 189-98).
On February 3, 2023, the Appellate Division unanimously affirmed the judgment of conviction. People v. Sheppard, 213 A.D. 1216 (4th Dep't 2023) (Id. at 199-201). The court held that, even if the 911 call was made anonymously, the police had reasonable suspicion to stop the vehicle based upon the contents of the 911 call and the confirmatory observations of the police officers involved. (Id. at 200). The Appellate Division also held that petitioner “expressly waived” his claim that the trial court erred in declining to reopen the suppression hearing. (Id. at 201). Finally, the court concluded that the sentence imposed by the trial court was not unduly harsh or severe. (Id.).
On May 23, 2023, the Court of Appeals denied petitioner's application for leave to appeal. People v. Sheppard, 39 N.Y.3d 1157 (2023) (Id. at 210).
II. Generally Applicable Law
A. Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
The AEDPA provides that, when a state court has adjudicated the merits of a petitioner's constitutional claim, a federal court may grant an application for a writ of habeas corpus only if “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; 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); see also Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008). This is a “difficult to meet,” and “highly deferential standard for evaluating state-court rulings, which demands that state court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).
To determine whether a state-court decision is contrary to clearly established Supreme Court precedent, the federal court must consider whether the state court decision “‘applies a rule that contradicts [such] law' and how the decision ‘confronts [the] set of facts' that were before the state court.” Id. at 182 (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)) (alterations in original). A state court decision involves an unreasonable application of clearly established Supreme Court precedent if it correctly identifies the governing legal principle, but unreasonably applies, or unreasonably refuses to extend that principle to the facts of a particular case. See Williams, 529 U.S. at 413; Ramdass v. Angelone, 530 U.S. 156, 166 (2000).
Under the AEDPA, a state court's factual findings are presumed correct, unless that presumption is rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). If the state court failed to decide a claim “on the merits,” the pre-AEDPA standard of review applies, and both questions of law and mixed questions of law and fact are reviewed de novo. Washington v. Shriver, 255 F.3d 45, 55 (2d Cir. 2001). Finally, the Supreme Court has held that circuit and district court decisions do not constitute “clearly established Federal Law, as determined by the Supreme Court.” Parker v. Matthews, 567 U.S. 37, 40 (2012). Instead, circuit court decisions may illustrate the “possibility” of fair-minded disagreement, sufficient to justify denying the writ. White v. Woodall, 572 U.S. 415, 422 n.3 (2014).
B. Exhaustion
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, . . . thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (internal quotation and other citations omitted)); 28 U.S.C. § 2254(b)(1). The prisoner must “fairly present” his claim in each appropriate state court, including the highest court with powers of discretionary review, thereby alerting that court to the federal nature of the claim. Id.; see also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994).
“A habeas Petitioner has a number of ways to fairly present a claim in state court without citing ‘chapter and verse' of the Constitution, including ‘(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.'” Hernandez v. Conway, 485 F.Supp.2d 266, 273 (W.D.N.Y. Apr. 25, 2007) (quoting Daye v. Attorney General, 696 F.2d 186, 194 (2d Cir. 1982)).
Where a petitioner has failed to exhaust his claims, but he cannot return to state court, petitioner's claims are then “deemed” exhausted, but barred by procedural default. Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). The merits of such a procedurally defaulted claim may not be reviewed by a federal court unless the petitioner can show both cause for the default and actual prejudice resulting from the alleged violation of federal law, or if he can show that the constitutional violation has resulted in the conviction of one who is “actually innocent.” Rivas v. Fischer, 687 F.3d 514, 540 (2d Cir. 2012); see also Clark v. Perez, 510 F.3d 382, 393 (2d Cir. 2008) (internal quotation and citations omitted). The actual innocence prong is referred to as the fundamental miscarriage of justice exception. Rivas, supra. “Cause” exists if “the prisoner can show that some objective factor external to the defense impeded counsel's effort to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice exists if there is a “reasonable probability” that the result of the proceeding would have been different absent the alleged constitutional violation. Strickler v. Greene, 527 U.S. 263, 289 (1999).
C. Adequate and Independent State Ground Doctrine
A federal judge may not issue a writ of habeas corpus if an adequate and independent state-law ground justifies the prisoner's detention, regardless of the federal claim. See Wainwright v. Sykes, 433 U.S. 72, 81-85 (1977). A federal habeas court generally will not consider a federal issue if the last state court decision to address the issue “‘rests on a state law ground that is independent of the federal question and adequate to support the judgment.'” Garvey v. Duncan, 485 F.3d 709, 713 (2d Cir. 2007) (quoting Lee v. Kemna, 534 U.S. 362, 375 (2002)) (emphasis added). This rule applies whether the independent state law ground is substantive or procedural. Id. When the independent and adequate state ground supporting a habeas petitioner's custody is a state procedural default, additional concerns come into play. Coleman v. Thompson, 501 U.S. 722, 731 (1991); see also Whitley v. Ercole, 642 F.3d 278, 286 (2d Cir. 2011) (quoting Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999) (“[P]rocedural default in the state court will . . . bar federal habeas review when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.”) (internal quotation marks omitted)).
There are certain situations in which the state law basis for decision will not be considered “adequate”: (1) where failure to consider a prisoner's claims will result in a “fundamental miscarriage of justice,” Coleman, 501 U.S. at 750; (2) where the state procedural rule was not “‘firmly established and regularly followed,'” Ford v. Georgia, 498 U.S. 411, 423-24 (1991); see also James v. Kentucky, 466 U.S. 341, 348-349 (1984); and (3) where the prisoner had “cause” for not following the state procedural rule and was “prejudice[d]” by not having done so. Wainwright v. Sykes, 433 U.S. at 87. In certain limited circumstances, even firmly established and regularly followed rules will not prevent federal habeas review if the application of that rule in a particular case would be considered “exorbitant.” Garvey, 485 F.3d at 713-14 (quoting Lee, 534 U.S. at 376).
In order to find that the application of a generally sound rule is exorbitant, the court considers (1) whether the alleged procedural violation was actually relied upon by the state court and whether perfect compliance with the state rule would have changed the court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner “substantially complied” with the rule given the realities of trial and whether demanding perfect compliance with the rule would serve a legitimate governmental interest. Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003).
III. Analysis of Petitioner's Claims
A. Fourth Amendment Claims
As he did on his direct appeal, petitioner maintains that the trial court should have suppressed the firearm because its discovery was the product of an unlawful stop of his vehicle predicated on a 911 call from an unidentified person who allegedly lacked first-hand knowledge that petitioner committed a crime. (Pet. at 5). Petitioner also asserts that the trial court should have reopened the suppression hearing to admit the 911 call into evidence. (Id. at 7). Finally, petitioner claims, for the first time in this proceeding, that Officer Heider perjured himself at the hearing. (Id. at Exhibit “1”).
The Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976), bars petitioner's Fourth Amendment claim. There, the court 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.” Powell, 428 U.S. at 494 (footnotes omitted). Under Powell, the inquiry is whether the petitioner was denied the opportunity to “fully and fairly” litigate a Fourth Amendment claim such that his due process rights could be said to have been violated.
As explained by the Second Circuit, a denial of due process may be found to have occurred only where (a) the state provided “no corrective procedures” to redress the purported Fourth Amendment violations, or (b) “the state [] provided a corrective mechanism, but the [petitioner] 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) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)); see also White v. West, No. 04-CV-02886, 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, 2010 WL 644435, at *15 n. 24 (S.D.N.Y. Feb. 24, 2010), report and recommendation adopted, 2010 WL 2720395 (S.D.N.Y. June 29, 2010), aff'd, 467 Fed.Appx. 18 (2d Cir. 2012)).Where a habeas petitioner cannot show that he was never afforded a corrective process for a claimed Fourth Amendment violation, or that there was an unconscionable breakdown in that process, the underlying Fourth Amendment claim will not be cognizable on habeas review. White, 2010 WL 5300526, at *13.
With respect to the former, it is well settled that New York's statutory mechanism, N.Y. Criminal Procedure Law § 710.10 et seq., “complie[s] with th[e] requirement” to have a corrective procedure to address Fourth Amendment violations. McPhail v. Warden, 707 F.2d 67, 69 (2d Cir. 1983); see Capellan, 975 F.2d at 70 n.1 (noting that “the ‘federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. [ ] as being facially adequate' ”) (quoting Holmes v. Scully, 706 F.Supp. 195, 201 (E.D.N.Y. Feb. 15, 1989)). Accordingly, petitioner cannot maintain his Fourth Amendment claim on habeas review based on an alleged lack of corrective procedure to redress said violation.
Alternatively, an “unconscionable breakdown” inquiry must focus “on the existence and application of the corrective procedures themselves,” rather than “the correctness of the outcome resulting from the application of adequate state court corrective procedures.” at Capellan, 975 F.2d at 71; Harrison v. Smith, 05-CV-5953, 2011 WL 3370391, at *10 (S.D.N.Y. July 14, 2011). An unconscionable breakdown may encompass a substantial failure in the process, such as, for example, the “ambush[ing of the defendant] by unanticipated and unforeseeable application of a state court procedural rule at a time when it can no longer be complied with.” Poole v. New York, No. 08-CV-6236, 2009 WL 3009356, at *6 (S.D.N.Y. Sept. 21, 2009). An unconscionable breakdown may also be established through a showing of severe disruption or obstruction of the state proceeding, such as, “the bribing of a trial judge, the government's knowing use of perjured testimony, or the use of torture to extract a guilty plea, all without opportunity to obtain state review.” Cappiello v. Hoke, 698 F.Supp. 1042, 1050 (E.D.N.Y. Jan. 7, 1988), aff'd, 852 F.2d 59 (2d Cir. 1988). In evaluating whether an unconscionable breakdown occurred, the habeas court must determine whether the state's corrective process was rendered “meaningless [because] the totality of state procedures allegedly did not provide rational conditions for inquiry into federal law . . . questions.” Capellan, 975 F.2d at 70 (quoting Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 456-57 (1963)); accord, e.g., Green v. Lee, No. 14-CV-6344, 2016 WL 110524, at *7 (S.D.N.Y. Jan. 8, 2016) (“An unconscionable breakdown occurs when the state court fails to conduct a reasoned inquiry into the petitioner's claim.”), report recommendation adopted, 2016 WL 1275051 (S.D.N.Y. Mar. 31, 2016). It is only under those limited conditions that “collateral review by a federal court would be appropriate” to examine a Fourth Amendment claim. Capellan, 975 F.2d at 70.
To the extent petitioner contends that there was an unconscionable breakdown in New York's corrective process, the court addresses his individual Fourth Amendment claims more specifically below.
1. Unlawful Traffic Stop
Petitioner fails to establish that there was any unconscionable breakdown in the corrective process as it relates to his challenge to the purportedly unlawful traffic stop leading to his arrest. Specifically, the court granted petitioner's application for an evidentiary hearing which occurred on September 27, 2019 (SH. at 24-80), during which petitioner's counsel cross-examined Officer Heider and Detective Mosqueda regarding matters relevant to petitioner's contention that his constitutional rights were violated. Further, petitioner had the opportunity, but declined, to call any witnesses at the hearing. Petitioner also advanced legal and factual arguments in support of his suppression motion. His motion to suppress having been denied (SR. at 11-20), petitioner sought reargument of the court's October 31, 2019 Decision/Order (Id. at 93112), which the court also denied (R. at 1-5). Thereafter, petitioner presented his Fourth Amendment claim on direct appeal to the Appellate Division, which the court rejected on the merits. (SR. at 199-201). The New York State Court of Appeals subsequently denied petitioner leave to appeal. (Id. at 210). See White, 2010 WL 5300526, at *12 (noting that, where petitioner had litigated his Fourth Amendment claims both at a suppression hearing and on direct appeal to the Appellate Division, he “demonstrated that state process was available, and, indeed, that he availed himself of that process” (citation omitted)); Nunez v. Conway, 923 F.Supp.2d 557, 568 (S.D.N.Y. Feb. 14, 2013) (dismissing Fourth Amendment claim where “the trial court conducted a suppression hearing on [the petitioner's] probable cause and suggestive identification claims . . . [and] the petitioner then litigated those claims before the Appellate Division and sought review from the Court of Appeals”).
2. Reopening Suppression Hearing
Petitioner's additional contention that the trial court should have reopened the suppression hearing to admit the 911 call into evidence is unavailing and does not establish an unconscionable breakdown in the state's corrective process. As an initial matter, it is undisputed that the prosecution disclosed an unredacted copy of the 911 call and subsequent radio communications to petitioner prior the suppression hearing. (SH. at 2-3). Nevertheless, petitioner elected not to introduce the 911 call into evidence at the suppression hearing or in the context of his motion for reargument. (Id. at 24-80, 12339; 140-44; SR. 93-112). Instead, petitioner waited until the state court appellate process to raise this issue for the first time which the Appellate Division rejected, deeming it to have been “expressly waived.” Sheppard, 213 A.D.3d at 1217 (quoting People v. Hamilton, 159 A.D.3d 559 (1st Dep't 2018), lv. denied 31 N.Y.3d 1117 (2018)).
Even if viewed outside the construct of the Fourth Amendment, petitioner's argument that the court should have reopened the suppression hearing still fails. First, petitioner's argument is precluded by the Supreme Court's holding in Tollett v. Henderson, 411 U.S. 258, 267 (1973), where the Court opined that when a defendant “solemnly admit[s] in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the guilty plea. He may only attach the voluntary and intelligent character of the guilty plea.” Accordingly, “a defendant who knowingly and voluntarily enters a guilty plea waives all non-jurisdictional defects in the prior proceedings.” United States v. Garcia, 339 F.3d 116, 117 (2d Cir. 2003); see also United States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) (explaining that where a petitioner provides a counseled guilty plea, “the issue is not the merits of [petitioner's] independent claims . . . but rather whether the guilty plea had been made intelligently and voluntarily with the advice of competent counsel.”) (internal quotation marks and citations omitted). Insofar as petitioner in the instant case is not contesting the voluntariness of his guilty plea, he waived his right to claim that the trial court failed to reopen the suppression hearing to admit the 911 call into evidence.
Moreover, petitioner's claim that the state court should have reopened the suppression hearing is non-cognizable on federal habeas review. “It is well established that a federal habeas court does not sit to correct a misapplication of state law, unless such misapplication violates the Constitution, laws, or treaties of the United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir. 2002) (citing 28 U.S.C. § 2254). Because a claim premised on a violation of New York Criminal Procedure Law § 710.40(4) does not allege a violation of a federally protected right, petitioner's claim that the state court improperly refused to reopen the suppression hearing does not provide a basis for granting federal habeas relief. See Tirado v. Walsh, 168 F.Supp.2d 162, 170 (S.D.N.Y. Oct. 22, 2001) (“[Petitioner's] assertion that the State court improperly reopened the suppression hearing thereby allegedly allowing the prosecution witness to contradict his earlier testimony, was clearly a matter of state law. It is thus not a claim cognizable on federal habeas review.” (citations omitted)).
3. False Testimony Claims
Petitioner's claim that Officer Heider gave false testimony at the suppression hearing does not establish an unconscionable breakdown in the state's corrective process. See Hernandez v. Filion, No. 05-CV-4046, 2005 WL 3164063, at *6 (S.D.N.Y. Nov. 29, 2005) (“Hernandez's perjury claim seeks to attack the outcome of the suppression hearing, and that attack does not fit within either of the exceptions to Stone. Thus, the allegation that perjury occurred during the hearing does not mean that New York State provided Hernandez with ‘no corrective procedures at all' to redress the alleged Fourth Amendment violations.”) (citing Capellan, 975 F .2d at 70). Notwithstanding petitioner's contention that Officer Heider lied at the suppression hearing, the state courts credited that testimony, and that determination is entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1). Petitioner has offered no evidence, let alone clear and convincing evidence, to rebut that presumption. See Leka v. Portuondo, 257 F.3d 89, 98 (2d Cir. 2001)). Rather than specifying which portion(s) of Officer Heider's testimony was not true, petitioner merely states in conclusory fashion that his testimony was false. Without more, petitioner cannot establish an unconscionable breakdown in the state's corrective process that prevented him from receiving a full and fair opportunity to litigate his Fourth Amendment claim. See Skeete v. New York, No. 03-CV-2903, 2003 WL 22709079, at *3 (E.D.N.Y. Nov. 17, 2003) (Petitioner's “vague, conclusory and unsupported claims do not advance a viable claim for habeas corpus relief.”); Maddox v. Lord, 818 F.2d 1058, 1061 (2d Cir. 1987) (Court can deny habeas petition when claims put forward are merely vague or conclusory); Dory v. Comm'r of Corr., 865 F.2d 44, 45 (2d Cir. 1989) (summary dismissal of habeas petition is justified where the allegations are “vague, conclusory, or palpably incredible.”) (internal citations omitted); United States v. Romano, 516 F.2d 768, 771 (2d Cir. 1975) (habeas relief properly denied where prosecutorial misconduct claim consisted of only “conclusory allegations”).
Even if petitioner established that Officer Heider's testimony was not truthful, he is nevertheless precluded from advancing that claim in this forum because it is an unexhausted claim for habeas purposes. See Baldwin, 541 U.S. at 29. There is no evidence in the record that petitioner raised the issue of Officer Heider's alleged untruthful testimony in any state court proceeding. To the extent this argument is record-based, plaintiff can no longer present it at the state court level, and it is therefore deemed exhausted, but foreclosed by procedural default. Petitioner cannot demonstrate cause for his procedural default and that he suffered actual prejudice resulting from the alleged violation of his constitutional rights. Similarly, petitioner has not proffered any evidence that satisfies the miscarriage of justice exception, i.e.,- that he is “actually innocent” of the charges to which he pled guilty. Rivas, 687 F.3d at 540.
B. Grand Jury Proceeding
Petitioner's claim that the grand jury proceeding was defective because the prosecutor introduced hearsay testimony instead of the live testimony of the 911 caller is unexhausted, non-cognizable and waived by his guilty plea.
Like several of his other grounds for habeas relief, petitioner's hearsay argument is being raised for the first time in this proceeding and is therefore unexhausted. There is no evidence in the record that petitioner afforded the state court the “‘opportunity to pass upon and correct' alleged violations of [his] federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (quoting Picard v. Connor, 404 U.S. 270, 275 (citation omitted)). “To provide the state with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.” Baldwin, 541 U.S. at 29 (quoting Duncan, 513 U.S. at 365-366). Despite petitioner's failure to exhaust this claim, the court nevertheless may, for the following reasons, deny it on the merits and with prejudice pursuant to 28 U.S.C. § 2254(b)(2).
First, petitioner's challenge to the grand jury proceedings is precluded by virtue of his guilty plea. Having admitted “in open court that he [was] in fact guilty” of criminal possession of a weapon in the second degree, petitioner may not “raise independent claims relating to the deprivation of constitutional rights that occurred prior to entry of the guilty plea.” Tollett, 411 U.S. at 267; see also Ploof v. Gorczyk, No. 96-CV-2428, 1996 WL 705869, *2 (2d Cir. 1996) (“It is also well established, however, that a counseled and voluntary guilty plea bars all non-jurisdictional defects in a prior proceeding.”). Petitioner may only challenge the “voluntary and intelligent nature of [his] guilty plea,” which he does not do in his petition. Id.
Furthermore, petitioner's challenge of the grand jury proceeding is not cognizable in a habeas corpus proceeding in federal court. See Davis v. Mantello, 42 Fed.Appx. 488 (2d Cir. 2022). There is no federal constitutional right to a grand jury proceeding in a state criminal proceeding. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972); LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002). In New York, a grand jury indictment arises from the “State Constitution and other state laws . . . and federal habeas relief may not be granted for violations of state law.” Robinson v. LaClair, No. 09-CV-3501, 2011 WL 115490, at *8 (E.D.N.Y. Jan. 13, 2011). Therefore, “[c]laims of deficiencies in state grand jury proceedings are not cognizable in a habeas corpus proceeding in federal court.” Davis v. Mantello, 42 Fed.Appx. 488, 490-91 (2d Cir. 2002) (summary order), cert. denied sub nom Davis v. Filion, 538 U.S. 986 (2003); see also Van Stuyvesant v. Conway, No. 03- CV- 3856, 2007 WL 2584775, at *25 (S.D.N.Y. Sept. 7, 2007) (claim that false testimony was presented before the grand jury is not cognizable on habeas review) (citing Lopez, 865 F.2d at 32-33); Mayes v. Donnelly, No. 03-CV-417, 2009 WL 2601106, at *9 (W.D.N.Y. Aug. 21, 2009) (“To the extent that Mayes is attempting to assert a claim that Anderson perjured himself when he testified before the grand jury, habeas relief is not warranted because the claim is not cognizable in this federal habeas proceeding[.]”).
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the petition (Dkt. No. 1) be DE DISMISSED, and it is
RECOMMENDED, that a certificate of appealability be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. These objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.