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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 ...

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