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Vasquez v. Kelly

United States District Court, W.D. New York
Jun 25, 2004
98-CV-0352C (W.D.N.Y. Jun. 25, 2004)

Opinion

98-CV-0352C.

June 25, 2004


Petitioner Bryan Vasquez, an inmate in the custody of the New York State Department of Correctional Services, filed this petition pro se for a writ of habeas corpus seeking to vacate his state court conviction, entered upon a plea of guilty to one count of criminal possession of a controlled substance in the first degree, "on the ground that he is in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). For the reasons set forth below, the petition is denied.

BACKGROUND

The facts underlying petitioner's plea are distilled from the transcript of a May 5, 1995 hearing on petitioner's motion to suppress evidence seized at the time of his arrest (R. 63-155), and the May 24, 1995 decision by Monroe County Court Judge John J. Connell denying the motion (R. 163-67). On the evening of January 13, 1995, while on patrol, Town of Irondequoit Police Officer Blake Hunt observed petitioner's vehicle speeding, and followed it into the parking lot of a convenience store. As petitioner exited the vehicle, Officer Hunt approached him and requested a driver's license and vehicle registration. After receiving the documents, officer Hunt advised petitioner that he was going to give him a ticket for speeding, and asked him to return to the driver's seat of his car. Officer Hunt then illuminated the interior of petitioner's vehicle with his flashlight, and noticed on the floor behind the passenger seat a black, brick-shaped package wrapped in clear tape. There was a tear in a corner of the package through which the officer could observe a white substance. After observing the package for a several seconds from a few different perspectives, Officer Hunt concluded that it contained cocaine.

References preceded by "R." are to pages of the Record on Appeal, submitted as an exhibit to respondent's answer (Item 7).

In a federal court proceeding on an application for habeas corpus relief pursuant to 28 U.S.C. § 2254, determination of factual issues made by the state court "shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C . § 2254(e)(1).

At that point, Officer Hunt asked petitioner to get out of his car. He handcuffed petitioner and placed him in the rear of the police car. Petitioner was then transported to the Irondequoit Police Department where, after being given his Miranda warnings, he was interviewed by Officer Michael Donalty. Petitioner's vehicle was towed to the Police Department, where an inventory search was conducted.

During the course of the interview, Officer Donalty advised petitioner that paperwork seized during the inventory search of the vehicle indicated that he lived at 735 Edgecreek Trail in the Town of Irondequoit. Petitioner denied living at that address, but told the officers that if they found a key on his keyring to fit that address, they could "go ahead" and search the premises (R. 110).

Officers were dispatched to Edgecreek Trail, and used one of petitioner's keys to unlock the front door at 735 Edgecreek Trail. They opened the door but did not enter. Instead, they returned to the Irondequoit Police Department. Upon their return, the officers alerted Officer Donalty as to their findings within earshot of petitioner. Petitioner stated, "Go ahead and look then" (R. 116). The police returned to 735 Edgecreek Trail and searched the premises. Officers also used petitioner's keys to open the garage, as well as the trunk of a car parked inside the garage, where they found over $50,000 dollars in cash, a gun, and an additional four kilograms of cocaine (R. 119-21, 165).

On February 24, 1995 petitioner was charged in an indictment by the Monroe County Grand Jury with two counts of criminal possession of a controlled substance in the first degree (N.Y. Penal Law § 220.21(1)), two counts of criminal possession of a controlled substance in the third degree (N.Y. Penal Law § 220.16(1)), and speeding (N.Y. Veh. Traf. Law § 1180(d)) (R. 3-5). Petitioner was represented at arraignment and pre-plea proceedings by Michael P. Schiano, who moved to suppress the evidence seized as a result of the officers' search of petitioner's vehicle and the premises at 735 Edgecreek Trail.

After hearing and argument, Judge Connell denied the motion to suppress in its entirety. Judge Connell found that Officer Hunt was properly at petitioner's vehicle while citing him for a speeding violation, that the officer's view into the vehicle was not unduly intrusive, and that the observations he made with regard to the "black brick" were proper in light of the officer's training and experience (R. 166). Judge Connell also found that petitioner made a knowing and intelligent waiver of his Miranda warnings, and that all statements made by petitioner to the police were voluntarily made. Finally, Judge Connell found that petitioner gave the police unrestricted permission to search both Edgecreek Trail addresses ( id.).

Trial was scheduled for September 25, 1995 (R. 177). On September 11, 1995 petitioner's newly substituted counsel, David A. Murante, moved to reopen the suppression hearing. Counsel contended that at the time of the arrest, petitioner had minimal if any understanding of English, raising serious questions as to whether he could have knowingly and intelligently waived his Miranda rights or consented to the search of the premises at Edgecreek Trail (R. 176-80). On September 15, 1995, Judge Connell heard argument and denied the motion to reopen, finding no new facts or facts that could not have been discovered with reasonable diligence prior to the determination of the motion to suppress (R. 186-87) (citing N.Y. Crim. Proc. Law ("CPL") § 710.440(4)). Petitioner then entered a plea of guilty to one count of criminal possession of a controlled substance in the first degree, in satisfaction of the indictment (R. 187-92). On October 16, 1995, petitioner was sentenced to an indeterminate prison term of 15 years to life (R. 194-97).

Petitioner appealed to the Appellate Division, Fourth Department, raising the following grounds:

1. The officer's use of the flashlight constituted an unwarranted intrusion into the interior of the vehicle.
2. The officer's observations from outside of the vehicle provided neither probable cause to arrest petitioner, nor probable cause to seize the package.
3. The people failed to meet their burden of establishing that petitioner consented to the search of his home.
4. The lower court erred in failing to reopen the suppression motion.

(Appellate Brief, Item 7, Appendix D).

On July 12, 1996, the Fourth Department unanimously affirmed petitioner's conviction, stating as follows:

[W]e conclude that the court properly found that the officer's use of a flashlight to illuminate the interior of defendant's vehicle did not constitute a search within the meaning of the Fourth Amendment. Upon illuminating the interior of defendant's vehicle, the officer observed, in plain view on the floor behind the front passenger seat, a "black block type" package wrapped in black plastic. The officer testified that one corner of the package had a "tear" or "window" through which he observed a "white substance." Based upon his training and experience in investigating narcotics trafficking as a member of the Canine Unit, the officer concluded that the package contained cocaine. Under the circumstances of this case, the officer had probable cause to believe that defendant was in possession of cocaine and he had probable cause to arrest defendant and seize the cocaine.
The record additionally supports the court's conclusion that defendant thereafter "consented to search both addresses on Edgecreek Trail and placed no limitations on the scope of the search." Lastly, we conclude that the court properly denied defendant's motion to reopen the suppression hearing because defendant failed to make the required showing that "additional pertinent facts have been discovered by the defendant which he could not have discovered with reasonable diligence before the determination of the motion" (CPL 710.40[4]). The fact that defendant would have testified at the second hearing is insufficient to entitle him to that relief. The record does not support defendant's contention that the court was unaware of its discretionary power pursuant to CPL 710.40(4) to reopen the suppression hearing.
People v. Vasquez, 229 A.D.2d 997, 997-98, 645 N.Y.S.2d 672, 673 (4th Dep't 1996) (citations omitted).

By letter dated July 25, 1996, petitioner sought leave to appeal to the New York State Court of Appeals, raising the same issues (Item 7, Appendix G). On September 10, 1996, the Court of Appeals denied leave, finding no question of law presented that merited review. People v. Vazquez, 88 N.Y.2d 1025 (1996).

On August 4, 1997 petitioner brought an application pro se for an order pursuant to CPL § 440.10(h) to vacate his judgment of conviction on the grounds that it was obtained in violation of his constitutional right to the effective assistance of trial counsel (Item 7, Appendix J). Specifically, petitioner argued that Mr. Schiano's failure at the original suppression hearing to enter evidence of petitioner's inability to speak or understand English, as well as his failure to otherwise present the applicable law and material facts in support of his suppression motion, constituted ineffective assistance. The People argued in response that, pursuant to CPL § 440.10(2)(c), the court was required to deny the motion because petitioner's ineffective assistance claim could have been raised on appeal. The People also addressed the merits of the motion, arguing that petitioner received effective assistance because both trial attorneys raised the issue of petitioner's difficulties with English and evidence was adduced at the suppression hearing on this matter, and because petitioner received advantageous treatment in accepting the plea (Item 7, Appendix K).

On August 28, 1997, Judge Connell denied petitioner's CPL § 440.10 motion "for the reasons set forth in the People's response" (Item 7, Appendix L). Petitioner's application for leave to appeal was denied by the Fourth Department on January 5, 1998 ( id., Appendix R).

On June 2, 1998, petitioner filed his application for federal habeas corpus relief asserting the same grounds previously raised in his state court appeals and in his CPL § 440.10 motion. For the reasons that follow, the application is denied.

DISCUSSION

1. Standard for Federal Habeas Corpus Review

Under the federal habeas corpus statute, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), where a state court has adjudicated the merits of a petitioner's claim, relief from a state court judgment of conviction may not be granted unless the state court's adjudication:

(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 Williams v. Taylor, 529 U.S. 362, 375-76 (2000). In short, a federal habeas court applying the AEDPA standard "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d 129, 134 (2d Cir. 2002).

These standards apply to petitions filed on or after the AEDPA's April 24, 1996 effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997), cert. denied, 525 U.S. 859 (1998).

Petitioner raises five grounds for federal habeas corpus relief, all of which were adjudicated on the merits by the state courts: 1) the officer's use of the flashlight was an illegal search; 2) the arresting officer's observations from outside the vehicle were insufficient to establish probable cause; 3) the People failed to prove that petitioner consented to a search of his home; 4) the trial court erred in denying petitioner's motion to reopen the suppression hearing; and 5) ineffective assistance of trial counsel in failing to properly raise the issue of petitioner's difficulties with the English language.

2. Federal Habeas Review of Fourth Amendment Claims

The first four grounds set forth in the petition relate to the state courts' adjudication of petitioner's motion to suppress evidence obtained in violation of the Fourth Amendment's proscription against unreasonable searches and seizures. In this regard, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976) (footnotes omitted). As noted by the Second Circuit, Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim. . . ." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977), cert. denied, 434 U.S. 1038 (1978). Thus, the courts have long held that a Fourth Amendment challenge can be raised on federal habeas review only in one of two instances: (1) "if the state provides no corrective procedures at all to redress Fourth Amendment violations," or (2) if "the state provides the process but in fact the defendant is precluded from utilizing it by reason of an unconscionable breakdown in that process. . . ." Id. at 840; see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Ferron v. Goord, 255 F. Supp.2d 127, 131 (W.D.N.Y. 2003).

A defendant in a state criminal proceeding receives a full and fair opportunity to litigate his or her Fourth Amendment claim where the state provides a statutory mechanism for suppression of evidence obtained as the result of an unlawful search and seizure. McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983); Gates, 568 F.2d at 837. New York clearly affords defendants the requisite corrective procedures. See CPL § 710.10, et seq.; see also Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986); Capellan, 975 F.2d at 70 n. 1 (citing federal cases approving the procedures embodied in CPL Article 710 as being "facially adequate").

Petitioner's various applications before the state trial and appellate courts, as summarized above, clearly indicate that the state has given him the opportunity for "full and fair" litigation of his Fourth Amendment claims. His trial counsel filed, briefed, and argued a comprehensive motion to suppress, and the County Court conducted a full evidentiary hearing on the matter at which petitioner had the opportunity to call witnesses on his own behalf and cross-examine prosecution witnesses. Both County Court and the Fourth Department considered petitioner's claims and issued written determinations explaining their reasons for denying the motion on the merits, and petitioner sought leave to appeal the denial to the State's highest court. Accordingly, the only basis for this court to undertake habeas review of petitioner's Fourth Amendment claims is if there has been an "unconscionable breakdown" in the state's process.

An "unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society." Cappiello v. Hoke, 698 F. Supp. 1042, 1050 (E.D.N.Y. 1988) (noting such examples as bribing of trial judge, government's knowing use of perjured testimony, or use of torture to extract a guilty plea), aff'd, 852 F.2d 59 (2d Cir. 1988); accord Capellan, 975 F.2d at 70 (observing that "unconscionable breakdown" must entail some sort of "disruption or obstruction of a state proceeding"); see also Stanley v. Kuhlman, 10 F. Supp.2d 250, 253 (E.D.N.Y. 1998) (unconscionable breakdown occurs when state court fails to conduct reasoned inquiry into petitioner's claim). As set forth above, this court's review of the state court records confirms that no such breakdown occurred in this case.

Petitioner's fourth claim — that the trial court's refusal to reopen the suppression hearing was in error — was also rejected by the Fourth Department. A ruling by a state trial court on an evidentiary question is a matter of state law that poses no constitutional issue, in the absence of any showing by the petitioner that the ruling rendered a trial fundamentally unfair. Tirado v. Walsh, 168 F. Supp.2d 162, 170 (S.D.N.Y. 2001) (citing cases). No such showing has been made here. To the contrary, the record is clear that petitioner was given a full and fair opportunity to litigate his evidentiary claims prior to his entry of a guilty plea, and the trial court properly exercised its statutory discretion in refusing to reopen the suppression hearing, in accordance with CPL § 710.40(4). Under these circumstances, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Nor does Judge Connell's denial of petitioner's request to renew the suppression motion constitute an "unconscionable breakdown" of the state's process for adjudicating Fourth Amendment claims. As noted in the Cappiello case, it is not an unconscionable breakdown where "a litigant, who fails to raise a claim when he is initially given an opportunity for full and fair review, is not afforded a second chance to attack the same evidence on a different legal theory." Cappiello, 698 F. Supp. at 1051.

Accordingly, petitioner is not entitled to habeas corpus relief on the ground that the state courts erroneously adjudicated his Fourth Amendment claims.

3. Ineffective Assistance

Petitioner's final claim is that he was deprived of his constitutional right to the effective assistance of trial counsel as a result of Mr. Schiano's failure at the original suppression hearing to address petitioner's difficulties with the English language. However, the record is clear that Mr. Schiano did, in fact, address this issue during his cross-examination of both Officer Hunt (R. 85-86) and Officer Donalty (R. 122-24). Under the "highly deferential" standard for habeas review of ineffective assistance claims set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 689 (1984), petitioner cannot demonstrate that this conduct was "so egregious as to amount to a failure to provide minimal professional representation." Roberts v. Scully, 875 F. Supp. 182, 195 (S.D.N.Y.), aff'd, 71 F.3d 406 (1995) (citing Strickland, 466 U.S. at 690) (habeas court weighing ineffective assistance claim must determine whether, in light of all the circumstances, counsel's conduct was "outside the wide range of professionally competent assistance."). Nor can he establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

Accordingly, petitioner is not entitled to habeas corpus relief on the ground of ineffective assistance of trial counsel.

CONCLUSION

For the reasons set forth above, petitioner cannot demonstrate that the state courts' adjudication of his claims resulted in a decision contrary to clearly established federal law or was based on an unreasonable determination of the facts, or otherwise resulted in a conviction obtained "in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2254(a). The petition for habeas corpus relief under 28 U.S.C. § 2254 is denied, and the case is dismissed. The Clerk of the Court is directed to enter judgment in favor of respondent.

Pursuant to 28 U.S.C. § 1915(a)(3), the court certifies that an appeal from this decision and order may not be taken in forma pauperis because such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The court also finds that the petition presents no question of substance for appellate review, and that petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.

So ordered.


Summaries of

Vasquez v. Kelly

United States District Court, W.D. New York
Jun 25, 2004
98-CV-0352C (W.D.N.Y. Jun. 25, 2004)
Case details for

Vasquez v. Kelly

Case Details

Full title:BRYAN VASQUEZ, 95-B-2257, Petitioner, v. WALTER R. KELLY, Superintendent…

Court:United States District Court, W.D. New York

Date published: Jun 25, 2004

Citations

98-CV-0352C (W.D.N.Y. Jun. 25, 2004)