The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
David C. Johnson, proceeding pro se, brings this petition
for writ of habeas corpus challenging his conviction in the
Supreme Court of the State of New York, New York County, pursuant
to his plea of guilty to Criminal Possession of a Controlled
Substance in he Second Degree (New York Penal Law § 220.18(1)).
Johnson, who is currently incarcerated at the Adirondack
Correctional Facility in Ray Brook, New York, was ultimately
sentenced to an indeterminate prison term of five years to life.
The parties have consented to disposition of this petition by a
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons stated below, Johnson's petition is denied.
A. Evidence Presented at Suppression Hearing
On September 29, 2000, Sergeant John Fitzpatrick, Detective
Michael Dunleavy, and Detective Richard Laura were working as
part of the New York Police Department's Taxi Unit, patrolling
precincts in midtown Manhattan to observe livery cabs and prevent
violence against their drivers. (See H. 6:10-11, 14-15).*fn1 At
approximately 9:00 p.m., the officers observed a white livery cab
in front of their unmarked police car, traveling east on West
42nd Street. (See H. 7:2-3; 10:19-23). The officers stopped the
cab to alert the driver to what appeared to be a safety violation
the "middle window of the partition [between the front and back
seats] was open" and to "advise him that he should close the
partition and let him know about the danger of keeping that
partition open." (See H. 11:25; 12:1; 14:4-7). When Sergeant
Fitzpatrick approached the cab, he smelled marijuana coming from
the back seat of the cab, where Johnson was sitting. (See H.
14:16-17). He asked Johnson to step out of the cab, at which
point Detective Dunleavy discovered a "partially smoked marijuana
cigarette" in Johnson's hand. (See H. 19:7-8). A subsequent
search uncovered marijuana in Johnson's pockets and crack cocaine
in a bag on the back seat of the cab. (See H. 19:15-16;
Contending that the police had unlawfully stopped the livery
cab without probable cause, Johnson moved to suppress the drugs
discovered during the search, as well as a statement he made to
the police. See Brief for Respondent, dated June 2003
(reproduced as Ex. C to Declaration in Opposition to Petition for
a Writ of Habeas Corpus, filed July 22, 2005 ("Decl. in Opp.")
(Docket #6)) ("Resp. Br."), at 2. In a decision dated April 26,
2001, the trial court denied Johnson's motion. Id.
Following the denial of his motion to suppress, Johnson entered
into a plea agreement, under which he agreed to plead guilty to
one count of criminal possession of a controlled substance in the second degree, in full satisfaction of the
indictment against him. (See P. 2:17-22). The court informed
Johnson of the rights that he would be waiving by pleading
guilty, including the right to a jury trial and the right to
appeal. (See P. 5; 9). The court also confirmed that no one had
"forced [Johnson] against [his] will to plead guilty," and that
he was pleading guilty "of [his] own free will." (See P.
7:17-18, 25; 8:1). The court indicated that Johnson would be
sentenced to five years to life, unless he was adjudicated a
predicate felon, in which case he would be sentenced to six years
to life. (See P. 3).
C. Second-Felony Adjudication and Sentence
On February 15, 2002, the court determined that Johnson was a
predicate felon and sentenced him to six years to life. (See S.
19; 23). Johnson's attorney, who had argued against the predicate
felon finding, stated that he was reserving his right to appeal
that determination, (see S. 17), even though he had "waived his
right to appeal the suppression hearing." (See S. 27).
Johnson's counsel appealed his adjudication as a second-felony
offender. See Brief for Defendant-Appellant, dated October 2002
(reproduced as Ex. A to Decl. in Opp.), at 12-23. Johnson
subsequently filed a pro se supplemental brief arguing that
the search of the livery cab, his subsequent arrest, and the
trial court's denial of his motion to suppress had violated his
Fourth Amendment rights. See Supplemental Brief for
Defendant-Appellant, undated (reproduced as Ex. B to Decl. in
Opp.). According to Johnson, the initial stop of the livery cab
was unlawful because the police had not observed a violation of
any traffic law, rule, or regulation, and had no reasonable
suspicion that he was committing or was about to commit a crime. Thus, the drugs seized subsequently should have been
suppressed. See id. at 1-14.
The District Attorney's office filed a brief in response to
these claims, conceding that the trial court had erroneously
adjudicated Johnson a predicate felon. See Resp. Br. at 4-9.
With respect to his Fourth Amendment claim, the District Attorney
argued that Johnson had knowingly and voluntarily waived his
right to appeal, and that the claim in any event was without
merit. See Resp. Br. at 10-18.
On September 23, 2003, the Appellate Division affirmed
Johnson's conviction, but concluded that he had been improperly
adjudicated a second-felony offender. It thus vacated Johnson's
sentence and resentenced him to an indeterminate term of five
years to life. People v. Johnson, 308 A.D.2d 384, 384 (1st
Dep't 2003). The court also held that Johnson's "valid waiver of
his right to appeal forecloses review of his suppression claim."
Id. (citing People v. Kemp, 94 ...