The opinion of the court was delivered by: Robert W. Sweet, United States District Judge
Juan Montero pro se ("Montero" or the "Petitioner"), currently incarcerated at the Bare Hill Correctional Facility, Malone, New York, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate and set aside his conviction after a jury trial of one count of Criminal Possession of a Controlled Substance in the Second Degree (Penal Law § 220.18), two counts of Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16), and Criminally Using Drug Paraphernalia in the Second Degree (Penal Law § 220.50). Defendant John Sabourin (the "State") has opposed the application which is denied for the reasons set forth below.
Montero filed his application with the Pro Se Office on September 24, 2002, and the petition was filed October 30, 2002. The petition alleges as grounds for relief those grounds raised in his state appellate proceeding, namely, violation of his Fourth Amendment rights, the prosecutor's improper summation, and the submission to the jury of a lesser included offense.
The State's opposition was filed on February 24, 2003 at which time the application was considered fully submitted. No further reply has been received from Montero.
By New York County Indictment Number 7615/97, Montero, a passenger in a car driven by co-defendant Jose Roman, which had been stopped by the police, and Julio Martinez, a fellow passenger, were each charged with one count of Criminal Possession of a Controlled Substance in the First Degree, Criminal Possession of a Controlled Substance in the Third Degree, Criminal Possession of a Weapon in the Third Degree (possession with intent to sell), and two counts of Criminally Using Drug Paraphernalia in the Second Degree. Montero was also charged with another count of Criminal Possession of a Controlled Substance in the Third Degree (possession with intent to sell) and one count of Criminal Possession of a Controlled Substance in the Fifth Degree for the drugs recovered on his person.
Montero moved to suppress the drugs, money, baking soda, ice, and gun, as well as a statement he had made to the police. On May 21 and 27, 1998, the Honorable Charles Solomon, Supreme Court of the State of New York, New York County, held a combined Mapp/*fn1Dunaway/*fn2Huntley*fn3 hearing. Pursuant to an opinion dated August 21, 1998, the court denied Montero's motion to suppress the physical evidence and statement made to the police.
On January 7, 1999, Montero proceeded to trial before Supreme Court Justice Joan Sudolnik and a jury, his co-defendants having pled guilty. The People called Officers Aliberti and Burgos and Sergeant James Glenn with the Street Crime Unit. The police officers testified to their observations, the events leading to Montero and his co-defendants' arrests and the further investigation at the police station. The People also called George Annarella, a supervisor with the Special Narcotics Prosecutor's office who testified as an expert witness in the pricing, packaging, production, and distribution of narcotics. In addition, Gamil Hanna, a chemist with the New York City police laboratory testified for the People regarding his analysis and identification of the cocaine and heroin seized by the officers.
According to the testimony at trial, at or about 10:00 p.m. on September 12, 1997, Montero was one of two passengers in a 4x4 jeep that Jose Roman was driving in upper Manhattan; Julio Martinez was the other passenger. As the jeep drove past two unmarked police cars, Officer Marc Aliberti observed that its headlights were off. The police turned their turret lights on and followed the jeep in order to ticket the driver for the moving violation. As soon as Roman pulled over into a parking spot, Montero got out of the jeep and quickly tried to cross the street.
Officer Aliberti asked Montero to stop and to return to the jeep which he did. The officer could see the bag contained baking soda, an ingredient used for converting cocaine into crack. Officer Aliberti also found ice in the bag which was used for crack production.
While that was occurring, Officer Jorge Burgos spoke with Roman who opened the jeep's driver's side door to step out into the street. Officer Burgos approached Roman to prevent him from leaving the jeep. When he did that, Burgos saw a clear plastic bag on the floor where Montero had been sitting containing a white rocky substance that looked like cocaine. At that point all three men were placed under arrest. It was later determined that the rock of cocaine weighed four and three-eights of an ounce.
In a more thorough search of the jeep at the scene, the officers recovered a black bag containing $500 and a loaded operable pistol. The three men were placed in squad cars to be transported to the precinct. Before they left the area, Burgos found envelopes of heroin where Montero had been sitting which he claimed had accidentally fallen out of his pocket.
At the precinct, the three men were searched more thoroughly. Montero had eight vials of cocaine in crack form in his shoe. The police also recovered $2,454 from Montero, $369 from Roman and $1, 032 from Martinez.
Montero called Jose Roman to testify that the police officers had lied regarding the events leading to the traffic stop, that the drugs and the gun found in the car actually belonged to him, and that he had never showed Montero the drugs.
Judgment was entered against Montero on February 26, 1999, and he was sentenced as a second felony offender to concurrent terms of ten years to life on the second degree count and two terms of seven to fourteen years for each of the third degree counts and one year for the paraphernalia count.
Montero appealed to the Appellate Division, First Department on the following grounds: (1) that the stop and frisk by the arresting officers was illegal, the investigation of the car for a moving violation was a pretext to search the car, and that the discovery of cocaine in the car when the door was opened was a violation of Montero's constitutional right to be free from unreasonable searches and seizures; (2) that the court's submission of a lesser included offense over Montero's objection deprived him of his due process right to a fair trial, and (3) that the prosecutor's summation which repeatedly disparaged Montero shifted the burden of proof denying Petitioner of a fair trial.
The Appellate Division, First Department unanimously affirmed the convictions and sentences by order dated June 12, 2001, holding that there was ample basis for the court's finding that the stop was not pretextual and that the validity of the stop was based on objective circumstances and not on the police's subjective intent. People v. Montero, 284 A.D.2d 159, 160, 726 N.Y.S.2d 102, 103 (2001). The court also held that Montero's defense case "raised a sufficient issue as to the weight of the drugs to warrant submission at the People's request and over [petitioner's] objection, of second-degree possession as a lesser included offense of first-degree possession." Montero, 284 A.D.2d at 160, 726 N.Y.S.2d at 103 (citing People v. Argro, 37 N.Y.2d 929, 379 N.Y.S.2d 840 (1975)). Finally, the court rejected on the merits of Montero's claim that the prosecution's summation deprived him of a fair trial.
Subsequently, on June 14 and July 9, 2001, Montero applied for a certificate granting leave to appeal to the New York State Court of Appeals raising two of the three issues presented to the lower appellate court.*fn4 On July 25, 2001, Montero's application for leave to appeal to the Court of ...