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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


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; 20:1-4).

  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 ...

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