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SMITH v. SCULLY

September 25, 1984

LARRY SMITH, Petitioner, against CHARLES SCULLY, Supt., Green Haven Correctional Facility, Respondent


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, U.S.D.J.

I.

 Petitioner seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to set aside a judgment of the New York State Supreme Court convicting him of criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree and reckless endangerment in the first degree.

 Petitioner was sentenced as a second felony offender on the basis of a conviction pursuant to a plea of guilty to a charge of first degree forgery in the State of Georgia in November of 1970.

 The New York State Appellate Division affirmed the conviction without opinion. The New York Court of Appeals denied the petitioner's application for leave to appeal.

 II.

 Petitioner asserts two grounds for relief under this petition:

 (1) The gun and live ammunition seized from his apartment on the night of his arrest should have been suppressed as the product of an illegal search.

 (2) His sentencing as a second felony offender was improper because his predicate felony conviction, in Georgia, was unconstitutionally tainted.

 With respect to the second ground, since petitioner is challenging the sentence imposed in New York, he is required only to exhaust his New York State remedies prior to seeking federal relief. See United States ex rel. LaNear v. La Vallee, 306 F.2d 417 (2d Cir. 1962); 28 U.S.C. § 2254. *fn1" I find that petitioner has exhausted his New York State remedies with respect to both claims, and I have jurisdiction to address petitioner's petition on the merits.

 III.

 Petitioner contends that the evidence used against him in the trial court was the product of an illegal search, and that his Fourth Amendment rights to protection against the use of illegally obtained evidence were violated. This is not, at least in New York, a proper ground for federal habeas corpus relief. Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976); McPhail v. Warden, 707 F.2d 67 (2d Cir. 1983).

 The Supreme Court of the United States has held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal 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, 482, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976) (footnote omitted). The Stone doctrine has been consistently applied by the Second Circuit. See, e.g., McPhail v. Warden, 707 F.2d 67, 69 (2d Cir. 1983); Styers v. Smith, 659 F.2d 293, 294 (2d Cir. 1981); Gates v. Henderson, 568 F.2d 830, 837 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038, 98 S. Ct. 775, 54 L. Ed. 2d 787 (1978). The focus of the Stone v. Powell standard is the word "opportunity": it means that the state must make available "a statutory ...


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