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Brown v. Connell

April 28, 2006

TIMOTHY P. BROWN, PETITIONER,
v.
SEAN CONNELL, RESPONDENT.



The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge

REPORT AND RECOMMENDATION

Timothy P. Brown, proceeding pro se, brings this petition for a writ of habeas corpus challenging his August 8, 2001, conviction in the New York State Supreme Court, New York County, following his plea of guilty to Criminal Possession of a Controlled Substance in the Second Degree (New York Penal Law ("N.Y.P.L.") § 220.18). He was sentenced as a second felony offender to a term of six years' to life imprisonment. Brown is currently released on parole. For the reasons stated below, the petition should be denied.

I. BACKGROUND

A. The Suppression Hearing

A pre-trial hearing on Brown's motion to suppress evidence took place on February 8, 1999. In brief, the evidence at the hearing reflected that on the evening of September 23, 1998, plain-clothes officers in an unmarked police car observed two males -- later identified as Brown and a Derrick Martin -- exiting "pretty fast" out of a red car on Riverside Drive and looking up and down the block. (H. 12).*fn1

The neighborhood was the source of "a lot of complaints for cars being broken into and also for cars being stolen." See H. 11. After the men left, the officers inspected the car and found it "in disarray, like it was messy," and apparently unlocked. (H. 14). Thereafter, a man and a child approached a "fairly new" car parked nearby. (H. 15). When the man reached the trunk of that car, he had "this really disgusted look on his face" and asked the officers if they had seen who was trying to break into his trunk. (H. 16).

Brown and Martin returned to the red car shortly thereafter. (H. 17). As Brown was getting into the car, Martin looked directly at the officers and then "grabbed something in his -- either his coat or under his coat and yelled out in a very loud voice, look out, the cops, and then he took off running." (H. 18). As one of the officers approached Brown, who was in the front passenger seat, the officer "saw a bulge on [Brown's] right side in his waistband and his hands started going where that bulge is." (H. 20). Believing Brown had a weapon, the officer grabbed Brown, put him down on the ground, and felt the bulge. (H. 25). Because he could not tell whether it was a weapon, he "reached in and ripped it out." See id. The bulge turned out to be a bag of cocaine. See H. 26.

B. The Suppression Ruling and Appeal

Following Flynn's testimony, Justice Carol Berkman, of the Supreme Court of New York, New York County, granted Brown's motion to suppress. See H. 34-50. The State appealed. See Brief and Appendix for Appellant, dated Dec. 1999 (reproduced in Ex. A to Declaration in Opposition to Petition for a Writ of Habeas Corpus, dated Apr. 12, 2005 (Docket #6) ("Attias Decl.")). Brown's attorney filed a brief supporting the trial court's ruling. See Brief for Defendant-Respondent, dated June 2000 (reproduced in Ex. A to Attias Decl.). On November 21, 2000, the Appellate Division reversed, holding that the totality of the circumstances "provided the officer with a reasonable suspicion that defendant was reaching for a weapon." See People v. Brown, 277 A.D.2d 107, 107-08 (1st Dep't 2000). The court noted that "it may almost be considered common knowledge, that a handgun is often carried in the waistband . . . and a police officer need not 'await the glint of steel before he can act to preserve his safety.'" Id. at 108 (citations and internal quotation marks omitted). Thus the court held that "the officer acted appropriately when he touched the bulge, determined it was a hard object, and removed it." Id. (citations omitted).

On February 27, 2001, the Court of Appeals denied Brown's request for leave to appeal the Appellate Division's ruling. See People v. Brown, 96 N.Y.2d 756 (2001).

C. Brown's Plea and Sentence

On June 26, 2001, Brown appeared with his attorney before Justice Berkman. Brown's attorney indicated that Brown wished to plead guilty to criminal possession of a controlled substance in the second degree, in exchange for which he would be promised an indeterminate sentence of six years' to life imprisonment. See P. 3, 6. Justice Berkman conducted a plea colloquy with Brown, but did not enter his plea in order to allow him to remain at liberty pending the execution of sentence. See P. 3-8. The plea was entered on August 1, 2001 -- the date that Brown was supposed to appear in court for sentencing. See S. 2. On August 8, 2001, Brown was sentenced to a term of six years' to life imprisonment. See S. 3.

D. Brown's Direct Appeal

In October 2002, Brown's court-appointed attorney, Andrew C. Fine, of the Legal Aid Society, filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967), in which he sought to withdraw as counsel because no appealable non-frivolous issues were presented. See Brief for Defendant-Appellant, dated Oct. 2002 (reproduced in Ex. C to Attias Decl.). The Legal Aid Society also wrote Brown a letter informing him that he had a right to seek permission, within 30 days of receiving the letter, to file a pro se supplemental brief "setting forth the points which you think should be considered on your appeal." See Letter from Svetlana M. Kornfeind to Timothy Brown, dated Oct. 9, 2002 (reproduced in Ex. C to Attias Decl.) ("Kornfeind Letter"). Brown did not file a pro se supplemental brief.

On February 18, 2003, the Appellate Division, First Department, agreed that "there are no non-frivolous points which could be raised on this appeal," and granted Fine's motion to withdraw. See People v. Brown, 302 A.D.2d 245, 245 (2003).

On April 15, 2003, Brown filed a pro se motion in the Court of Appeals seeking leave to appeal, claiming that his appellate counsel was ineffective for filing an Anders brief. See Notice of Appeal, dated Apr. 15, 2003 (reproduced in Ex. E to Attias Decl.); Affidavit in Support, dated Apr. 15, 2003 (reproduced in Ex. E to Attias Decl.) ("Aff. in Support"). Specifically, Brown argued that his appellate counsel was ineffective for the following reasons: 1) failing to argue that his plea to a crime punishable by death or life imprisonment was unauthorized by the New York Constitution; 2) failing to argue that both his trial counsel and the prosecutor deprived him of the right to testify before the grand jury; 3) failing to argue that the Appellate Division applied the wrong standard in deciding his motion to suppress the evidence; 4) failing to "present the real facts behind the suppression of [e]vidence"; and 5) disparaging his pro se arguments by "choosing to argue particularly weak appellate issues." See Aff. in Support at 2-3.

Brown's motion was returned to him as incomplete for failure to include the decision he was appealing and failure to serve the district attorney. See Letter from Stuart M. Cohen to Timothy P. Brown, dated Sept. 15, 2003 (reproduced in Ex. E to Attias Decl.). Brown thereafter filed a second application with the Court of Appeals. See Brief Application for Leave to Appeal for Defendant-Appellant, undated (reproduced as Ex. F to Attias Decl.) ("Br. App."). In this application he argued that: (1) the cocaine was properly suppressed by the trial court since the police officer did not have reasonable suspicion that Brown was armed, see Br. App. at 5-10; (2) both the People and Brown's defense counsel "conspired and coerced [him] into entering a plea of guilty to a defective accusatory instrument," where Brown "never had a proper procedural foundation laid down prior to[] any plea," and the court thus lacked jurisdiction to ...


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