United States District Court, S.D. New York
November 18, 2005.
DAVID C. JOHNSON, Petitioner,
GARY FILION, Superintendent of Correctional Facility, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
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.
B. Johnson's Plea
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).
D. Direct Appeal
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 N.Y.2d 831 (1999)). The New
York Court of Appeals denied Johnson leave to appeal. People v.
Johnson, 1 N.Y.3d 574 (2003).
E. The Instant Petition
Johnson timely filed the instant petition for habeas corpus
relief. See Petition Under 28 U.S.C. 2254 for Writ of Habeas
Corpus, filed January 14, 2005 ("Petition") (Docket #1). In his
petition, Johnson raises the same two grounds for relief that he
raised on his direct appeal. See Petition ¶¶ 14(A), (B). The
government has filed papers in opposition to Johnson's petition.
See Decl. in Opp.; Respondent's Memorandum of Law in Opposition
to Petition for a Writ of Habeas Corpus, filed July 22, 2005
(Docket #6). Johnson has not filed any papers in reply. II. APPLICABLE LEGAL PRINCIPLES
A petition for a writ of habeas corpus may not be granted with
respect to any claim that has been "adjudicated on the merits" in
the state courts unless the state court's adjudication: "(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 presented in
the State court proceeding." 28 U.S.C. § 2254(d).
For a claim to be adjudicated "on the merits" within the
meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the
parties' claims, with res judicata effect," and it must be "based
on the substance of the claim advanced, rather than on a
procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303,
311 (2d Cir. 2001) (citation omitted). As long as "there is
nothing in its decision to indicate that the claims were decided
on anything but substantive grounds," a state court decision will
be considered to be "adjudicated on the merits" even if it fails
to mention the federal claim and no relevant federal case law is
cited. See Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001);
accord Rosa v. McCray, 396 F.3d 210, 220 (2d Cir. 2005)
("This standard of review applies whenever the state court has
adjudicated the federal claim on the merits, regardless of
whether the court has alluded to federal law in its decision.").
In Williams v. Taylor, the Supreme Court held that a state
court decision is "contrary to" clearly established federal law
only "if the state court applies a rule that contradicts the
governing law set forth" in Supreme Court precedent or "if the
state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and
nevertheless arrives" at a different result. 529 U.S. 362, 405-06
(2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state
court identifies the correct governing legal principle from [the
Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case." Id. at 413. A
federal court may not grant relief "simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly." Id. at 411. Rather, the state
court's application must have been "objectively unreasonable."
Id. at 409.
Finally, under 28 U.S.C. § 2254(a), federal habeas review is
available for a state prisoner "only on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States." Errors of state law are not subject to
federal habeas review. See, e.g., Estelle v. McGuire,
502 U.S. 62, 67-68 (1991). To be entitled to habeas relief, a
petitioner must demonstrate that the conviction resulted from a
state court decision that violated federal law. See, e.g.,
id. at 68.
A. Second-Felony Offender Adjudication
In his first claim for habeas relief, Johnson contends that he
was improperly adjudicated a second-felony offender. See
Petition ¶ 14(A). Because this issue was resolved in Johnson's
favor, see Johnson, 308 A.D.2d at 384, the claim is moot.
See generally Village of Ilion v. Fed. Energy Regulatory
Comm'n, 790 F.2d 212, 217-220 (2d Cir. 1986) (a dispute is moot
when "the resolution of that dispute cannot affect the result as
to the thing in issue in the case, because intervening events or
judicial decisions have granted the relief sought, or rendered it
irrelevant") (citations and internal quotations omitted). B. Suppression Resulting from Allegedly Illegal Arrest
In his second claim for habeas relief, Johnson argues that the
trial court erred in denying his motion to suppress the drugs
that had been seized as a result of the search of the livery cab.
See Petition ¶ 14(B). The Appellate Division held that
Johnson's "valid waiver of his right to appeal forecloses review
of the suppression claim[.]" Johnson, 308 A.D.2d at 384 (citing
People v. Kemp, 94 N.Y.2d 831 (1999)).
It is not necessary to consider the respondent's argument that
the Appellate Division's ruling constitutes an independent and
adequate state ground barring habeas review of Johnson's claim.
Because the only federal issue raised by this claim is that
Johnson was the subject of an unreasonable seizure under the
Fourth Amendment, it is barred by Stone v. Powell, 428 U.S. 465
(1976). Under Stone, a habeas petitioner seeking redress for a
Fourth Amendment violation is not entitled to relief if the state
courts provided him with "an opportunity for full and fair
litigation" of his claim. Id. at 482. A habeas petitioner's
Fourth Amendment claims may be reviewed only if "(a) if the state
has provided no corrective procedures at all to redress the
alleged fourth amendment violations; or (b) if the state has
provided a corrective mechanism, but the defendant was precluded
from using that mechanism because of an unconscionable breakdown
in the underlying process." Capellan v. Riley, 975 F.2d 67, 70
(2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 840
(2d Cir. 1977)).
New York provides a corrective procedure in the form of a
suppression hearing. See N.Y. Crim. Proc. Law § 710.10 et
seq.; see Capellan, 975 F.2d at 70 n. 1 ("`[F]ederal courts
have approved New York's procedure for litigating Fourth
Amendment claims . . . as being facially adequate.'") (quoting
Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989)). Thus, only the second part of the test is applicable. Here, Johnson
makes no claim that he was precluded from using New York's
suppression hearing procedure and, indeed, he availed himself
of that procedure. The Second Circuit has squarely held that
"once it is established that a petitioner has had an opportunity
to litigate his or her Fourth Amendment claim (whether or not he
or she took advantage of the state's procedure), the [state]
court's denial of the claim is a conclusive determination that
the claim will never present a valid basis for federal habeas
relief." Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).
"[A] mere disagreement with the outcome of a state court ruling
is not the equivalent of an unconscionable breakdown in the
state's corrective process." Capellan, 975 F.2d at 72.
Thus, this claim cannot support habeas relief.
Johnson's petition is denied. Because Johnson has not made a
substantial showing of the denial of a constitutional right, the
Court declines to issue a certificate of appealability pursuant
to 28 U.S.C. § 2253(c). In addition, the Court certifies pursuant
to 28 U.S.C. § 1915(a)(3) that any appeal from the judgment would
not be taken in good faith.
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