The opinion of the court was delivered by: LEWIS A. KAPLAN
Petitioner Karl Edward Broome currently is serving a sentence of two concurrent terms of three and one half to seven years imprisonment in the New York State correctional system following his 1991 conviction on two counts of criminal possession of a weapon in the third degree. Petitioner seeks a writ of habeas corpus, challenging the conviction on thirteen grounds. For the reasons that follow, we deny the writ and dismiss the petition.
Evidence Seized Incident to Arrest
Petitioner's first ground for habeas corpus relief is the contention that his conviction was obtained by use of evidence seized pursuant to an unlawful arrest. Respondents argue that the last state court to rule on the claim found it to be procedurally barred and, in consequence, that petitioner may not raise it as a ground for habeas relief. See Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991).
Petitioner was arrested on November 23, 1991, indicted on January 11, 1991, and arraigned on the indictment on January 15, 1991. Between November 23, 1991 and April 30, 1991, when petitioner informed the trial court that he elected to proceed pro se, petitioner was represented by six different attorneys. The court gave petitioner until May 13, 1991 to file motions.
On May 9, 1991, one hundred and fourteen days after his arraignment, petitioner moved to suppress a gun seized in disputed circumstances at the time of his arrest. The record discloses no objection by the People as to the timeliness of the motion. The trial court denied the motion although the record does not disclose the reason for the ruling. The Appellate Division of the New York Supreme Court affirmed, holding that petitioner's motion to suppress was untimely
and that Broome "failed to demonstrate good cause for the delay in making the motion." People v. Broome, 187 A.D.2d 949, 590 N.Y.S.2d 349 (4th Dep't 1992), leave to appeal denied, 81 N.Y.2d 882, 597 N.Y.S.2d 943, 613 N.E.2d 975 (1993). The Appellate Division held further that the People had established probable cause and, therefore, that the motion properly would have been denied on the merits. Id.
The general rule governing the availability of habeas relief based on a procedurally barred claim is that "when a state court has determined that a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the petitioner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Habeas review is foreclosed even where, as here, the state court, although expressly relying on procedural default, has ruled in the alternative on the merits of the federal claim. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
Here, petitioner's unlawful search argument was raised on direct appeal and disposed of on the ground of untimeliness. It therefore is not a proper basis for habeas relief unless petitioner has met the Coleman test by showing (1) cause for the default and (2) actual prejudice suffered as a result of the alleged violation of federal law. We believe that there was cause for the default, but that actual prejudice has not been demonstrated.
As to cause, petitioner must show that "some objective factor external to the defense impeded . . . efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986); Coleman, 501 U.S. at 753. Petitioner claims that he was directed by the trial court, after he elected to proceed pro se, to file motions by May 13, 1991, that he did so, and that neither the trial court nor the People suggested that the motion was untimely. In substance, petitioner implicitly argues that the trial court effectively extended the 45 day time period in light of the changes in petitioner's legal representation and, in consequence, that there was no default, the Appellate Division notwithstanding. But the Appellate Division's ruling on this point is conclusive.
Petitioner suggests also that his several counsel were interested only in negotiating a plea, thus implying perhaps that the default was attributable to the ineffective assistance of counsel. But we need not determine that question because the gun was seized in a lawful manner. Petitioner therefore did not suffer actual prejudice.
According to information provided to law enforcement officers by the complaining witness, James Brown, immediately before petitioner was stopped on the street, the petitioner was carrying at least one weapon. This information created reasonable suspicion that justified the officers in stopping petitioner and patting him down. See Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). There is a conflict as to what then took place.
Petitioner's motion to suppress alleged that there was no search or seizure. Rather, he asserted that he was arrested and "while in custody a weapon was found on the ground by police [and] the defendant was then charged with criminal possession of a weapon." (Broome Aff., May 9, 1991, P L) If that were so, there was no basis for suppressing the gun, as it was not the product of any search of petitioner. 1 LeFave & Israel, Criminal Procedure § 3.2(b) (1984).