On April 18, 1994 petitioner was paroled from prison. Analysis of the three claims follows a brief passage concerning the court's 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 statutory scheme, not all suppression motions require an evidentiary hearing, e.g., id., § 710.60(2) & (3), and Judge Cunningham ruled that one was not required in this case, Ex. H att'd to Traverse, Doc. 13, at 2-3.
The legal point overlooked by petitioner is that even an erroneous decision by the county judge is not subject to collateral attack if the issue was fully and fairly litigated. See Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc) ("We have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts."), cert. denied, 434 U.S. 1038, 54 L. Ed. 2d 787, 98 S. Ct. 775 (1978). Even if this court could find fault in the decision of the trial court, the fact that petitioner was afforded and took advantage of a procedure by which the admissibility of the evidence in question could be argued precludes habeas review on this ground. The magistrate's conclusion that the Fourth Amendment claims are not cognizable by way of a section 2254 petition is sound.
Even if the opportunity to litigate was lacking in some fashion, this court would still reject petitioner's Fourth Amendment argument because he lacks standing to challenge an illegal seizure of evidence from his neighbor's property. "A person who is aggrieved through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois, 439 U.S. 128, 134, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). Petitioner has not alleged that he had any sort of possessory interest or expectation of privacy in the premises next to his own. Since he cannot vicariously assert his neighbor's constitutional right to be free from unreasonable searches and seizures, this claim is without foundation.
C. Fourteenth Amendment-Due Process
The original bill of particulars, in describing the area where controlled substances were seized, stated that "the cocaine was recovered from a window in the defendant's bedroom." The amended bill substituted the words "adjacent to" for the preposition "in." At trial, petitioner claimed unfair surprise that the drugs he was charged with possessing were in fact located in a building not owned by him. Ex. D. att'd to Petition, Doc. 1. Judge Cunningham declined to grant petitioner an adjournment to cope with the amendment, and petitioner now claims this decision violated his due process rights. Magistrate Judge Smith found that the amendment of the bill of particulars during trial did not effect any significant change to the original bill, and thus the denial of petitioner's request for an adjournment did not render the trial "fundamentally unfair." Rep.-Rec., Doc. 10, at 6-7 (quoting Conner v. Bowen, 842 F.2d 279, 283 (11th Cir.), cert. denied, 488 U.S. 840, 102 L. Ed. 2d 82, 109 S. Ct. 107 (1988)).
Although petitioner argues that a continuance was constitutionally required to respond to the unexpected amendment, it appears that everyone knew prior to trial that some evidence was obtained outside of petitioner's bedroom. Judge Cunningham's suppression decision reveals as much:
Defendants also claim there is a serious question as to whether some of the alleged evidence obtained pursuant to the search warrant was located on the premises covered by the warrant. The only property found outside of DeFio's apartment, however, was located on a roof area adjacent to the rear entrance of the apartment.