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STANLEY v. KUHLMAN

July 1, 1998

LEON STANLEY, Petitioner, against ROBERT H. KUHLMAN, Superintendent Sullivan Correctional Facility, Respondent.


The opinion of the court was delivered by: GERSHON

MEMORANDUM & ORDER

 GERSHON, United States District Judge:

 Petitioner challenges his March 7, 1989 conviction after a jury trial in New York State Supreme Court, Kings County (Rienzi, J.). Petitioner was convicted of Criminal Possession of a Controlled Substance in the First Degree (N.Y. Penal Law ยง 220.21[1]) and was sentenced to a prison term of fifteen years to life. The Appellate Division affirmed the conviction on March 29, 1993. People v. Stanley, 191 A.D.2d 732, 595 N.Y.S.2d 788 (2d Dep't), leave to appeal denied, 81 N.Y.2d 1081 (1993).

 Petitioner's motion to vacate the judgment was denied on August 14, 1995, and petitioner's application to the Appellate Division for leave to appeal was denied on October 30, 1995. People v. Stanley, No. 95-08805 (2d Dep't 1995). The Appellate Division denied petitioner's first petition for a writ of error coram nobis on May 28, 1996, People v. Stanley, 227 A.D.2d 652, 643 N.Y.S.2d 406 (2d Dep't 1996), and his second on January 16, 1997, People v. Stanley, No. 92-03452 (2d Dep't 1997).

 Petitioner filed a petition for a writ of habeas corpus in this court on February 7, 1997, alleging that: (1) his motion to suppress physical evidence should have been granted because the police searched him without probable cause; (2) the evidence against him was legally insufficient to support a conviction because the State's principal witness perjured himself; (3) the prosecutor engaged in misconduct by denigrating the defense strategy and misleading the jury during his summation; and (4) defense counsel was ineffective because he introduced into evidence an assistant district attorney's report and agreed to a stipulation as to the testimony of a paralegal without calling either witness to testify at trial, and because he neglected to argue that the evidence was insufficient to prove petitioner's knowledge of the weight of the cocaine.

 DISCUSSION

 Facts

 The prosecution presented evidence at trial that on June 5, 1987, petitioner was found in possession of four and three-eighths ounces of cocaine and ten and three-tenths grains of marijuana. Two witnesses testified at the trial: (1) Police Officer Kevin Swenson, who stopped the car in which petitioner was a passenger and spotted the cocaine, and (2) Police Officer Timothy O'Brien, Swenson's partner. The jury also heard the stipulated testimony of a chemist and a narcotics expert and a stipulation as to the testimony of Frank Ovejero, a paralegal in the district attorney's office. This stipulation was based upon the testimony Ovejero had given at a hearing on the motion to suppress physical evidence.

 Swenson testified that, on the night of June 5, 1987, he and O'Brien were on patrol in Brooklyn in an unmarked police car. At approximately 2 a.m., they stopped a livery cab on Lefferts Avenue because it had a broken headlight. Upon exiting their car, Swenson approached the passenger side of the cab and O'Brien approached the driver's side. Petitioner was seated on the passenger side in the back seat, and Swenson noticed that petitioner's right hand was cupped over his lap. Afraid that petitioner might have a weapon, Swenson ordered petitioner to move his hand. As petitioner lifted his hand, Swenson noticed that petitioner was holding a clear, plastic bag containing white powder, which Swenson believed to be cocaine. Swenson seized the bag and arrested petitioner. At the station, Swenson searched petitioner and found marijuana in his jacket pocket. Afterward, Swenson made entries in his memo book describing the circumstances surrounding petitioner's arrest. At least one entry was made with a pen different from the others. In that entry, Swenson wrote that when he observed petitioner, he noticed that petitioner's right hand was covering a large bulge on his lap.

 An Early Case Assessment Bureau ("ECAB") sheet prepared by Assistant District Attorney Laura Barbieri, the first person to interview Swenson, was admitted into evidence at the request of defense counsel as a prior inconsistent statement of Swenson's. The ECAB sheet stated that Swenson had noticed a bulge in petitioner's pocket, not on his lap.

 The stipulation as to Ovejero was that, if he were called as a defense witness, he would have testified as follows: Prior to preparing the complaint against petitioner, he reviewed the ECAB sheet and interviewed Swenson. He could not recall whether he also read Swenson's memo book entries. He acknowledged that, like the ECAB sheet, his own report indicated that Swenson had noticed a bulge in petitioner's pocket, not on his lap. He could not recall where Swenson said he had spotted the bulge during the interview.

 The parties stipulated that, if called, the chemist would have testified that the white substance found on petitioner was cocaine, and the narcotics expert would have testified that the street value of the cocaine was $ 3,500.

 Illegal Search and Seizure

 Petitioner claims that his motion to suppress the cocaine should have been granted because the police searched him without probable cause in violation of the Fourth Amendment to the United States Constitution. A Fourth Amendment claim arising from a state criminal conviction is barred from federal habeas corpus review unless the state denied the petitioner a full and fair opportunity to litigate the claim. Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976). A federal court is not permitted to judge the merits of a state court decision. See Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992). The court need only find that the state's procedure for resolving Fourth Amendment claims is "facially adequate" and that no "unconscionable breakdown" of the process occurred in the petitioner's case. See ...


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