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June 4, 2003


The opinion of the court was delivered by: Jack Weinstein, Senior District Judge


A hearing in this matter was scheduled by order for July 15, 2003, The court's order was returned as undeliverable, petitioner having been either released or paroled. Petitioner provided no forwarding address to the court. The petition for a writ of habeas corpus is dismissed for failure to prosecute and denied on the merits for the reasons discussed briefly below.

Petitioner was observed by a police officer engaging in what appeared to the officer to be a series of drug transactions. The officer was about 200 feet away from petitioner and across a highway, watching him through binoculars. Based on his observations, the officer began to approach petitioner, who took off his jacket, hung it up on a fence, and then walked into a small store. According to his testimony, the officer then went over to the jacket and

without touching the jacket, I could peer inside the right front pocket. It was stuffed with two ripped open cigarette cartons, small boxes. If you have a pack of cigarettes in, it looked like they were ripped in half. I could see inside them. One contained numerous bags, a lot of bags of clear zip-lock bags, like a white crystalline substance; it looked to be rock cocaine. The other box, it contained a lot of empty . . . zip-lock bags, very tiny bags, similar to what I had seen and to what I believe was crack cocaine in the other box. They appeared to be the same [ Page 2]
size and same clarity that was in the other box. Also in the other box were six butterfly folded rectangles. They appeared to be either cocaine or heroine that was contained in that. I've seen that on the street. That's how it was packed. There were six of those in the other box.
Tr. of Mar. 3, 1995 Hr'g, at 9-10. The officer then went into the shop, arrested petitioner and read him his Miranda warnings. Petitioner stated that the jacket was his uncle's.

Petitioner was charged with and convicted of several counts of criminal possession of a controlled substance and one count of criminal use of drug paraphernalia. He was sentenced as a second felony offender to 6 to 12 years in prison. His convictions were upheld on appeal and on collateral attack.

In the present petition, petitioner claims (1) that there was no probable cause to arrest him; (2) that trial counsel was ineffective for failing to interview defense alibi witnesses, failing to investigate the crime scene, and failing "to obtain photographs to establish how petitioner was in possession of confiscated U.S. currency in the total sum amount of [$400]"; and (3) that the trial court improperly denied his application to suppress evidence seized from him by the police officer.


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence [ Page 3]

presented in the State court proceeding." 28 U.S.C. § 2254(d).

An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002).

II. Exhaustion

A state prisoner's federal habeas petition must be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney [ Page 4]

General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).

A district court may, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see ...

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