The opinion of the court was delivered by: Marrero, District Judge.
Petitioner Rafael Tirado ("Tirado") filed the petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 now before this Court
challenging his conviction in New York State court for criminal sale of a
controlled substance in the third degree (New York Penal Law §
220.39) and criminal possession of a controlled substance in the seventh
degree (New York Penal Law § 220.03). The judgment was rendered on
July 20, 1998 in the New York Supreme Court, Bronx County, following a
trial by jury. Tirado was sentenced to an indeterminate prison term of
four and one-half to nine years on the sale count and to one year on the
possession count, with the terms to run concurrently.
On November 30, 1999, Tirado's conviction was affirmed. See People v.
Tirado, 698 N.Y.S.2d 484 (N.Y. App. Div. 1st Dept. 1999). The Appellate
Division ruled that "the [trial] court appropriately exercised its
discretion in reopening the suppression hearing, prior to any decision on
the merits, to permit further questioning of the People's witness where
the court and the parties expressed some confusion regarding one aspect
of the witness's testimony." Id. The appellate court further held that
the hearing court properly denied Tirado's suppression motion and that
there was "no reason to disturb the court's credibility determinations,
which are supported by the record." Id. Tirado's application for leave to
appeal to the New York Court of Appeals was denied on December 28, 1999.
See People v. Tirado, 725 N.E.2d 1106 (N.Y. 1999)
On or about March 9, 2001. Tirado's petition and supporting papers were
filed in this Court. Tirado raises essentially the same issues asserted
in his direct appeal. Respondent (herein, the "State") seeks denial or
dismissal of the petition on the grounds that (1) the claim regarding the
arresting officer's allegedly incredible testimony at the suppression
hearing was unexhausted in that it was not presented to the highest state
court and should be deemed forfeited and that, in any event, the
credibility claim is not cognizable under federal habeas law, and,
accordingly, cannot be reviewed by this Court; (2) the claim that the
arresting officer's testimony at the suppression hearing and reopened
hearing was "incredible" is procedurally barred from review pursuant to
Stone v. Powell, 428 U.S. 465 (1976); and (3) the claim that the trial
court improperly reopened the suppression hearing does not present a
federal question and that, in any event, the claim is unexhausted since
Tirado did not present it to the state court in federal constitutional
For the reasons set forth below, the writ is denied, and Tirado's
petition is dismissed with prejudice.
On December 7, 1996, New York City police Detective George Moreno
("Moreno") received radio calls stating that a woman had sold drugs to an
undercover officer in the lobby of a five-story apartment building
located at 675 East 140th Street, Bronx, New York. The sale involved
three orange-topped vials of crack cocaine exchanged for six dollars,
five of which consisted of a pre-recorded five-dollar bill. During the
transaction, the woman allegedly whistled to signal an individual on a
floor upstairs, and the undercover agent reportedly heard an answer in
the voice of a male Hispanic. Responding to the call, Moreno arrested
Denise Morris, Tirado's co-defendant, outside the building where the sale
While Moreno was arresting Morris, a second police officer, Hector
Nolasco ("Nolasco"), who was working as a "ghost" officer following the
undercover agent, went inside the building. Moreno waited with Morris
until the undercover officer conducted a drive-by identification of
Morris shortly after the sale. Moreno then received another radio call
from Nolasco stating that he saw a male Hispanic on the second floor look
at him and then enter an apartment on that floor.
Moreno recovered $598.00 from Tirado, including the pre-recorded
five-dollar bill used as the drug buy money. Moreno also recovered
sixty-eight orange-topped vials of crack cocaine from the bedroom floor
approximately two feet away from where Tirado was standing.
Tirado moved to suppress the evidence gathered at the scene of his
arrest, arguing that the police had no basis to pursue him into the
second floor apartment because the radio call Moreno had received from
the undercover officer regarding the transaction had nothing to do with
Tirado. Counsel argued that the undercover officer's side comment about
having heard a male Hispanic voice upstairs did not necessarily indicate
that a male Hispanic was involved in the drug transaction in any way.
The State contended that Morris went up to a second floor landing and
whistled; that a Hispanic male whistled back; and that Morris then
returned with the drugs to complete the sale. According to the State, the
involvement of a second person in the transaction provided the police
sufficient reason to enter and search the apartment where Tirado was
After the close of the suppression hearing, the State moved to reopen
the hearing and recall Moreno. The trial court granted the motion, over
Tirado's objection that it was improper to reopen the hearing to enable
the State's witness to fill in gaps in his testimony.
During the reopened hearing, Moreno was asked the same question he had
answered during the original hearing regarding the basis for pursuing
Tirado into the apartment. He responded that after Morris had entered the
lobby and whistled, another voice sounding like a male Hispanic had
whistled, and then Moreno elaborated that Morris had walked upstairs and
then had returned downstairs with the drugs — a fact he had omitted
from his earlier testimony.
The trial court credited Moreno's account of the events, holding that
under the totality of the circumstances, and weighing the additional
facts that Moreno had provided at the reopened hearing, there was
sufficient cause for the police to pursue Tirado into the apartment ...