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United States District Court, S.D. New York

March 8, 2004.

JEFF SMITH, Petitioner, -against- HORACE ALBAUGH, Superintendent, Cape Vincent Correctional Facility, Respondent

The opinion of the court was delivered by: RICHARD CASEY, District Judge

Jeff Smith ("Petitioner"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges two judgments entered in New York County Supreme Court: in the first, following a jury trial; Petitioner was convicted of second degree forgery and third degree possession of a forged instrument; in the second, Petitioner pled guilty to second degree possession of a forged instrument (Dkt No. 1: Petition [Pet] ¶¶ 4-5.)

Petitioner alleges: (1) a police search violated the Fourth Amendment; (2) the trial court erred in denying his motion to suppress statements that he alleges violated Miranda: (3) his right from double jeopardy was violated; (4) trial counsel was ineffective; and (5) he was denied a speedy trial. (Id. ¶¶ (A)-(D).)

  The case was referred to Judge Frank Maas, who in a Report and Recommendation dated November 14, 2003 ("Report"), recommended that the Petition be denied and that a certificate of appealability not be issued. (Dkt. No. 17: Report at 25.) Petitioner now objects to the Report, resurrecting the same arguments as were raised in the Petition. For the first time, Petitioner also claims in this objections to the Report that the evidence at trial was insufficient to support a guilty Page 2 verdict. (Dkt. No. 19: Objections to Report [Objections] at 1-2.) In light of the Objections, the Court has reviewed the Report's recommendations de novo. See Fed.R.Civ.P. 72(b). Having done so, the Court concludes that Petitioner's Objections do not provide a basis for departing from the Report's recommendation; therefore, the Court adopts the Report in its entirety.


  The Report sets forth in detail the background of this Petition. (See Report at 2-11.) The facts are therefore only briefly recounted here.

  On August 14, 1996, a jury convicted Petitioner of second degree forgery and third degree possession of a forged instrument for attempting to rent a car using a forged authorization letter. (Trial Transcript ("Tr.") at 229-30.) Because of a similar incident, Petitioner pled guilty to another charge of possessing a forged instrument. (Superior Court Information, Ex. C to Pet.) In January 1997, Petitioner moved to vacate both judgments. (Notice of Motion to Vacate Judgment, Ex. E to Pet.) The trial judge denied Petitioner's motion as meritless. (Decision & Order of Justice Ronald A. Zweibel, dated Apr. 9, 1997 [Supreme Court Decision], Ex. F to Pet.) Subsequently, Petitioner appealed to the Appellate Division arguing that the evidence at trial was not sufficient to support guilty verdicts and that the trial court erred in allowing the prosecution to amend its indictment to clarify the charge of second degree forgery. See People v. Smith, 693 N.Y.S.2d 106, 107(1stDept. 1999). The Appellate Division unanimously affirmed the convictions. Id. Petitioner sought, but was denied leave to appeal to the Court of Appeals. See People v. Smith, 94 N.Y.2d 799 (1999). Petitioner then petitioned this Court for a writ of habeas corpus. Page 3


  A. Fourth Amendment

  Petitioner argues that his Fourth Amendment rights were violated when physical evidence, obtained during an allegedly unconstitutional search and seizure, was presented at trial. Federal habeas relief is available to Petitioner if he could show that: (1) the state provided no corrective procedures to remedy the constitutional violation, or (2) the provided state procedures suffered from an "unconscionable breakdown." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). As the Report stated, Section 710.10 of the New York State Penal Law provided Petitioner with the requisite corrective procedures to address a Fourth Amendment violation. (See Report at 14.) Petitioner could only prevail then if he can show that the state process suffered from an unconscionable breakdown. An unconscionable breakdown occurs where there is some sort of "disruption or obstruction of a state proceeding." Capellan, 975 F.2d at 70 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N. Y. 1987)). In this instance, Petitioner has failed to demonstrate that there was such a breakdown. Accordingly, Petitioner is not now entitled to habeas relief on his Fourth Amendment claim.

  B. Miranda

  Petitioner's Miranda claim fares no better. First, Petitioner failed to exhaust his state court remedies as to the Fifth Amendment violation. See 28 U.S.C. § 2254(b)(1)(A), (B). Thus, the Court cannot entertain this portion of the Petition. Moreover, even if the Court were to reach the merits of this claim, the requested relief would be denied.

  Petitioner contends that he was in custody when he was initially detained, such that he should have been read his Miranda rights. (See Objections at 2.) Petitioner was not provided these rights Page 4 and so asserts that evidence derived from the initial stop violated Miranda. The flaw in Petitioner's argument is that when the police initially questioned him he was not in "custody," but was free to leave. See Thompson v. Keohnane, 516U.S. 99, 112 (1995): Stansbury v. California, 511 U.S. 318, 322 (1994); Tankleff v. Senkowski, 135 F.3d 235, 243 (2d Cir. 1998). Therefore his statements to the police were voluntary and the police were not obligated to advise him of his rights under Miranda. Accordingly, Petitioner suffered no Fifth Amendment violation.

  C. Double Jeopardy

  Petitioner has also failed to exhaust his state court remedies as to his claim of double jeopardy. Therefore, Petitioner procedurally defaulted this claim. See 28 U.S.C. § 2254(b)(1)(A), (B). Petitioner claims that he was placed in double jeopardy when the prosecution moved to amend the indictment and the court granted its motion. (Pet. ¶ 12(C).) Petitioner raised this issue as part of his direct appeal, but relied exclusively on state law. A federal court cannot review a habeas petition based on a state conviction unless the petitioner has exhausted all federal claims in the relevant state court. See Dave v. Attorney Gen. of New York, 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (reasoning that state court must first be given the opportunity to consider a federal claim before the federal court will consider a habeas petition). Therefore, Petitioner has not exhausted his double jeopardy claim.

  Nonetheless, even if considered on the merits, Petitioner's claim would fail. See 28 U.S.C. § 2254(b)(2). Petitioner claims that the criminal possession of a forged instrument charge, to which he pled guilty on November 20, 1996, was a "tactic" used to obtain a separate conviction "which placed [Petitioner] in double jeopardy." (Objections at 4.) This conviction, however, fails to raise double jeopardy issues because it was based on a separate incident of forgery. See United States v. Page 5 Chacko, 169 F.3d 140, 145 (2d Cir. 1999) (holding that a double jeopardy violation occurs when a person is punished for the same crime more than once). Petitioner was not previously convicted or sentenced for criminal possession of a forged instrument in the second degree; rather he was previously found guilty of criminal possession of a forged instrument in the third degree for an entirely different incident. (See Tr. at 229-30.) Petitioner has, therefore, not suffered a double jeopardy violation.

  D. Ineffective Assistance

  Petitioner also objects that contrary to the Report's recommendation, his counsel was ineffective. Petitioner claims that "[d]efense counsel raised no credible objections nor arguments . . . rather, counsel just teamed up with the [P]eople in repeatedly trying to have petitioner plea guilty." (Objections at 4.) Petitioner also claims that his attorney was "fresh out of law school" and that she did not have adequate supervision. (Id.) As stated in the Report, this claim is frivolous.

  The standard for determining ineffective assistance of counsel is whether counsel's performance fell below an objective standard for reasonableness and if so, whether there is a reasonable probability that the result of the case would have been different but for counsel's unprofessional errors. See Strickland v. Washington, 466 U.S. 668, 694 (1984). In this case, Petitioner's counsel provided him with an effective defense. However, as the Report concluded, "[defense counsel] was unable to spare Petitioner from a guilty verdict . . . since the proof against him was overwhelming." (Report at 24.) Petitioner's attorney also effectively counseled him to plead guilty to the second set of charges in order to obtain a more favorable sentence. Therefore, even if counsel for the defendant had not acted reasonably, there is little chance that the outcome of the case would have been different. In sum, the Court concurs with the state trial judge and Judge Page 6 Maas that Petitioner's claim of ineffective assistance amounts to no more than "sour grapes." (Supreme Court Decision at 2; Report at 24.)

  Because Petitioner has not provided the Court with evidence that there was a reasonable probability that the result of the case would have been different but for counsel's behavior, Petitioner's ineffective assistance of counsel claim is rejected.

  E. Speedy Trial

  Petitioner claims that he "repeatedly asked for a speedy trial, but to no avail," and that this denial violated CPL § 30.30. (Objections at 4.) Petitioner did not raise this issue on appeal and hence has not exhausted his state court remedies. See 28 U.S.C. § 2254(b)(1)(A), (B). Even if he had raised this issue on appeal, a violation of CPL § 30.30 does not rise to the level of a constitutional claim. See Parron v. Quick, 869 F.2d 87, 89 (2d Cir. 1989) ("The Constitution does not guarantee . . . success on [a] speedy trial claim.").

  F. Insufficient Evidence

  For the first time in his Objections to the Report, Petitioner claims that there was insufficient evidence at trial for a jury to find him guilty of forgery. (Objections at 1-2.) Specifically, Petitioner bases this assertion on the allegation that Gerald Arenburg, a trial witness who uses the alias Donald Andersen, did not definitively state whether or not he had signed the authorization letter that Petitioner was found to have forged. (Id.) Therefore, Petitioner argues, the prosecution failed to adequately prove that it was in fact Petitioner who forged the letter.

  A habeas petitioner may challenge the sufficiency of the evidence to support a conviction, but in doing so "bears a heavy burden." United States v. Giraldo, 80 F.3d 667, 673 (2d Cir. 1993). The Court, however, may not consider this claim because Petitioner failed to assert it in his Petition Page 7 and has not moved to amend it. The ability to amend a habeas corpus petition is governed by Federal Rule of Civil Procedure 15(a). See Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (holding that the Federal Rules of Civil Procedure may be applied to habeas petitions as long as they are not inconsistent with the Rules Governing Section 2254 cases). A pleading can be amended once "as a matter of course" unless there has been a "responsive pleading." Fed.R.Civ.P. 15(a). Respondent filed his responsive pleading on September 22, 2000. To properly amend his Petition, Petitioner requires "leave of court" or "written consent of the adverse party." Id. Petitioner did not pursue either of these steps, and hence his claim has not been added to the Petition. Even if Petitioner had properly sought leave to amend his Petition, it would have been denied because of Petitioner's undue delay in waiting until this late stage of the case to assert this claim. See Whelan v. Bank United of Texas, No. 97 Civ. 479, 1999 WL 285502, at *2 (S.D.N.Y. May 6, 1999) (explaining that court may deny a motion to amend when movant knew of the facts upon which the amendment is based when the original pleading was filed). Moreover, any such amendment would be fufile. See Health-Chem. Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (holding that where there is no merit to a proposed amendment, leave to amend should be denied). A review of the trial transcripts indicates that there was sufficient evidence to sustain the jury's verdict. As a result, there is no basis for this claim. Petitioner's argument that the evidence presented at trial was insufficient as a matter of law to prove his guilt beyond a reasonable doubt would fail. Page 8


  For the foregoing reasons, the Court adopts the Report in its entirety and Petitioner's request for a writ of habeas corpus is DENIED. A certificate of appealability does not issue, as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Clerk of Court is hereby directed to close the case.

  So Ordered.


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