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UNITED STATES EX REL. TIRADO v. BOMBARD

December 3, 1976.

UNITED STATES of America ex rel. Jacques TIRADO, Petitioner,
v.
ROY @F. BOMBARD, Superintendent, Green Haven Correctional Facility, Respondent.



The opinion of the court was delivered by: HAIGHT

MEMORANDUM AND ORDER

HAIGHT, District Judge:

 Petitioner Jacques Tirado is now serving a prison term of eight to twenty-five years, imposed by Justice Rosenberg, Supreme Court, New York County. Sentence followed a January 9, 1973 conviction by a jury on the charges of possession of a dangerous drug in the second degree, and criminally using drug paraphernalia in the second degree. The conviction was affirmed, People v. Tirado, 47 A.D.2d 193, 366 N.Y.S.2d 140 (1st Dept. 1975) (Murphy, J., dissenting). The Court of Appeals affirmed in a memorandum, 38 N.Y.2d 955, 384 N.Y.S.2d 151, 348 N.E.2d 608 (1975), on the majority opinion by Justice Stevens.

 Petitioner now seeks relief by writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254. He alleges four distinct grounds for declaring his conviction and subsequent custody to have been obtained by violation of the United States Constitution.

 First, Tirado alleges that his Fourth Amendment rights were violated by an insufficient affidavit submitted in support of the warrant application, and by the failure of the People to establish the reliability of the informant who supplied the information used to obtain the warrant. Petitioner further alleges that the warrant was in essence based on hearsay, and that his motion to suppress the evidence, held before Justice McQuillan, should have been granted.

 Second, Petitioner alleges that certain of his statements, made to arresting officers, were erroneously admitted at trial. He maintains that he was not given the notice of use required by the New York Criminal Procedure Law.

 Petitioner's third point is his allegation that the admission into evidence, at trial, of $38,765 in cash constituted undue prejudice.

 His fourth and final allegation is that the instructions by the trial judge as to joint possession, given to the jury while they were deliberating, and upon their request for additional information as to the nature of possession, constituted error which would require a new trial.

 ISSUES

 I. Petitioner's Fourth Amendment Claims

 The Petitioner alleges claims which, if true, would constitute violations of the Fourth Amendment. These claims go to the validity of the affidavit underlying the search warrant issued for his apartment, as well as going to the sufficiency of the warrant itself. Petitioner contends that because of these defects, his original suppression motion should have been granted, and the drugs and cash should have been excluded from trial.

 This court cannot evaluate the factual and legal allegations which Petitioner Tirado advances in support of his Fourth Amendment claims. Such evaluation here is precluded by the recent decision of the Supreme Court in Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976), which held:

 "Where the state has provided opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 96 S. Ct. 3037, 3052.

 In a footnote to the above passage, the Court explained that its holding does not mean that a federal court lacks jurisdiction over a Fourth Amendment claim, but only that a federal court's application of the exclusionary rule is limited to instances were there has been first, a Fourth Amendment violation, and second, denial of a full and fair opportunity to litigate that matter in a state court. 96 S. Ct. 3037, 3052 n. 37.Petitioner makes no showing of such a denial of a constitutionally sufficient opportunity. On the contrary, after Petitioner was unsuccessful in his suppression hearing, he further ...


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