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FERRON v. GOORD

March 27, 2003

NICHOLAS FERRON, PETITIONER,
v.
GLENN GOORD, COMMISSIONER OF DOCS, JAMES BERBARY, SUPERINTENDENT OF COLLINS CORRECTIONAL FACILITY, RESPONDENTS.



The opinion of the court was delivered by: David G. Larimer, United States District Judge

DECISION AND ORDER

INTRODUCTION

Petitioner Nicholas Ferron ("Ferron") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of Criminal Possession of a Controlled Substance in the Second Degree. The Appellate Division, Fourth Department unanimously affirmed his conviction, People v. Ferron, 248 A.D.2d 962 (4th Dept. 1998), and the Court of Appeals denied leave to appeal, People v. Ferron, 92 N.Y.2d 879 (1998). Ferron contests his conviction on two grounds: (1) his arrest was based on a defective search warrant, and (2) his trial counsel was ineffective. For the reasons set forth below, Ferron's § 2254 petition is dismissed.

BACKGROUND

Ferron was arrested on January 24, 1995 by members of the Rochester Police Department during execution of two search warrants at a building which housed Ferron's place of business and four apartments. Ferron was the landlord for the entire building. One warrant was for Ferron's store, located on the first floor, and the other warrant was for Apartment 3, an essentially vacant second-floor apartment which the police suspected Ferron was using to store narcotics. The search of Ferron's store was unproductive, but the search of Apartment 3 revealed the presence of cocaine, marijuana, and drug paraphernalia.

On March 10, 1995, Ferron was indicted in Monroe County Court on two counts of criminal possession of a controlled substance, one count of criminal possession of marijuana, and two counts of criminally using drug paraphernalia.

Ferron, through retained counsel, moved to suppress items seized pursuant to the search warrant for Apartment 3 on the ground that the application for the warrant did not establish probable cause to believe that the apartment contained narcotics. In particular, Ferron argued that the police officer's supporting affidavit failed to demonstrate the reliability and bases of knowledge of the two confidential informants who supplied information necessary for the warrant's issuance, and he requested a Darden*fn1 hearing in this regard. Ferron also contended that he was entitled to a hearing on the allegation that various statements supporting probable cause in the warrant were the product of two illegal warrantless entries by the police on prior occasions.

On May 26, 1995, Monroe County Court (Marks, J.) heard oral argument on Ferron's motion to suppress. In a written decision dated June 13, 1995, Judge Marks denied the motion in its entirety.

Following a jury trial which ended in mistrial due to a hung jury, Ferron pleaded guilty on September 22, 1995 to one count of Criminal Possession of a Controlled Substance in the Second Degree (New York Penal Law § 220.18(1)) and was sentenced to term of incarceration of seven years to life.

DISCUSSION

To prevail under 28 U.S.C. § 2254, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in State court. 28 U.C.C. § 2254(d)(1) and (2); Williams v. Taylor, 529 U.S. 362, 375-376 (2000).

Ferron raises three claims in his petition, two of which relate to alleged defects in the search warrant which led to his arrest. Ferron contends that his Fourth Amendment rights were violated because (1) the search warrant for Apartment 3 was not supported by probable cause and (2) the search warrant was tainted by prior illegal police entries. As his third claim, Ferron asserts that he was denied the effective assistance of counsel because his trial attorney allegedly failed to assert all of Ferron's factual allegations in support of the suppression motion. Respondent maintains that federal review of Ferron's Fourth Amendment claims is precluded under Stone v. Powell, 428 U.S. 465 (1976), and argues that his ineffective assistance of counsel claim is procedurally barred, and in any event, without merit.

Fourth Amendment Claims

Ferron's claims relating to the allegedly defective search warrant are barred because Fourth Amendment challenges can be raised on habeas review only in limited circumstances, which do not exist here. "Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. at 494 (footnotes omitted). The Second Circuit has noted that Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (en banc) (emphasis added), cert. denied. 434 U.S. 1038 (1978). A federal court may undertake habeas review only in one of two instances: (1) "[i]f the state provides no corrective procedures at all to redress Fourth ...


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