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August 13, 1996

ALEX S. DEFIO, Petitioner,
ROBERT HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.

The opinion of the court was delivered by: MUNSON

 Currently before this court is Alex Defio's petition for a writ of habeas corpus ad subjiciendum pursuant to 28 U.S.C. § 2254. In accordance with the standing orders of the Northern District of New York, the case was referred to the Honorable Ralph W. Smith, United States Magistrate Judge, who has completed his report-recommendation. The following constitutes the court's decision in this matter.


 On March 25, 1981 petitioner was convicted of various drug-related crimes in the Onondaga County Court. See Rep.-Rec., Doc. 10, at 1-2. He was sentenced to incarceration for eight and one-third to twenty-five years. The Appellate Division, Fourth Department affirmed and the New York Court of Appeals denied leave to appeal. Petitioner then moved unsuccessfully in county court to vacate the judgment, pursuant to New York Criminal Procedure Law § 440.10.

 Petitioner, with the assistance of counsel, applied to this court for the writ of habeas corpus upon three grounds: (1) his conviction was secured by the admission of evidence obtained in violation of the Fourth Amendment; (2) his conviction offends principles of the due process of law, because his counsel's request for an adjournment was denied even though the prosecution was permitted to amend its bill of particulars after trial commenced; and (3) the sentence imposed was cruel and unusual in violation of the Eighth Amendment. Mem. Law att'd to Petition, Doc. 1.

 Respondent answered and moved to dismiss the petition. The attorney general argued that petitioner's Fourth Amendment claims are not subject to federal collateral review because the State has already provided a full and fair opportunity to litigate them. With respect to the due process claim, respondent contends that the discretionary ruling of the trial court does not rise to the level of constitutional error. As for the Eighth Amendment argument, respondent observed that sentences within statutory limits can rarely be challenged as cruel and unusual. Resp.'s Mem. Law, Doc. 9.

 Petitioner himself filed papers he refers to as a "traverse," the common law term for a denial, after Magistrate Judge Smith's report-recommendation was filed. This document is in fact a reply to respondent's answer and motion. Petitioner now asks the court to consider his pro se reply submissions, and to grant leave for him to file untimely objections to the report-recommendation. The court will examine petitioner's traverse, but denies leave for any additional filings. Since the magistrate's report-recommendation agreed with respondent's answer on all significant points, petitioner's reply to the answer is equally applicable to the report-recommendation. The court will consider the traverse/reply in deciding whether to adopt the magistrate's recommendation.


 A. Jurisdiction

 The court observes first that the fact that petitioner is currently paroled does not deprive it of jurisdiction to decide the case, or render the petition moot. Jones v. Cunningham, 371 U.S. 236, 9 L. Ed. 2d 285, 83 S. Ct. 373 (1963); Peck v. United States, 73 F.3d 1220, 1224 n.5 (2d Cir. 1995). Section 2254, like section 2255, grants a remedy to petitioners in custody, and that condition "encompasses situations where the state has imposed restrictions that 'significantly restrain a petitioner's liberty to do those things which in this country free men are entitled to do.'" United States v. Weiss, 902 F. Supp. 326, 328 (N.D.N.Y. 1995) (citing Jones, 371 U.S. at 243). The common requirements of parole or supervised release, such as regular reporting, impose such restrictions. 371 U.S. at 242. Moreover, the State may revoke its clemency and incarcerate petitioner again. See Cates v. Superintendent, Indiana Youth Ctr., 981 F.2d 949, 952 (7th Cir. 1992). Determination of the merits of the case is thus still appropriate.

 B. Fourth Amendment-Search and Seizure

 Petitioner claims that evidence used to convict him was in fact seized from another person's property adjoining his own that was not described in the search warrant. Petition, Doc. 1. The magistrate agreed with respondent that the State had provided petitioner with "an opportunity for full and fair litigation" of his Fourth Amendment argument, and federal habeas corpus relief was consequently barred. Stone v. Powell, 428 U.S. 465, 481-82, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). Petitioner contends that the Onondaga County Court's refusal to grant a suppression hearing deprived him of that required opportunity. Traverse, Doc. 13, at 19.

 Petitioner's response ignores one factual and one legal point. First, petitioner had a complete opportunity to litigate these issues in his pretrial motion to suppress. The decision of County Judge Patrick Cunningham regarding the suppression motion shows that the dispute was competently argued and carefully determined. Ex. H att'd to Traverse, Doc. 13. The fact that Judge Cunningham decided the matter without holding an evidentiary hearing is of no moment. The opportunity to litigate the issue "means only that the state must make available 'a statutory mechanism' for suppression of evidence tainted by an unlawful search or seizure." McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983) (quotation omitted). New York has such a mechanism. See N.Y. Crim. Pro. Law § 710.10-710.70 (McKinney 1995). Under that ...

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