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Glover v. Herbert

May 23, 2006

SHAWN GLOVER, PETITIONER,
v.
VICTOR HERBERT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Shawn Glover ("Glover" or "Petitioner"), acting pro se, filed his initial petition for habeas relief pursuant to 28 U.S.C. § 2254 on July 31, 2001, challenging his conviction in Monroe County Court on one count of second degree murder and four counts of first degree robbery based on his participation in the robbery of a drug house and the murder of one of its occupants in 1995. See Docket #1. On March 26, 2003, he sought to have his petition held in abeyance so that he could return to state court to exhaust certain claims. The Court (Payson, M.J.) denied his application without prejudice, stating that he could re-file and attempt to demonstrate that he was entitled to a stay under Rhines v. Weber, 544 U.S. 269 (2005). On November 1, 2004, through attorney Donald Thompson, Esq., Glover filed another motion for a stay. See Docket #29. Respondent has opposed the stay request. See Docket #33.

II. Analysis of Petitioner's Second Motion for a Stay

Glover contends that if permitted to file an amended petition, he would allege that following his unlawful arrest, a statement (which was a direct and unattenuated product of such arrest) was improperly taken from him and that statement, together with physical evidence seized during the investigation (which the prosecutor claimed linked the petitioner to the commission of the crime, but in fact, excludes petitioner as a perpetrator) formed the sole basis for petitioner's present conviction.

Petitioner's Motion for a Stay at 3 (Docket #29). Glover goes on to state that he intends to have DNA testing performed on a ski mask which was introduced into evidence at trial. See id. at 4. Thus, it appears that Glover plans to assert two claims: (1) a Fourth Amendment claim and (2) a claim of actual innocence based on newly discovered evidence.

The Supreme Court has held that, in keeping with the purposes of AEDPA's*fn1 amendments to the habeas corpus statute, "stay and abeyance [of habeas petitions] should be available only in limited circumstances." Rhines v. Weber, 544 U.S. at 277. Stays should be granted only "if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. Neither the Supreme Court nor the Second Circuit has yet defined the contours of "good cause" in the context of stay and abeyance, and district courts in this Circuit have varied in their interpretations of the standard for "good cause." Wallace v. Artus, No. 05 CIV. 0567 SHS/JCF, 2006 WL 738154, *4 (S.D.N.Y. Mar. 23, 2006) (citing Fernandez v. Artuz, No. 00 Civ. 7601, 2006 WL 121943, at *5 (S.D.N.Y. Jan. 18, 2006) (collecting cases); Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1813 (2005) (stating that "filing a 'protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted . . . [as a method of coping with] reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file in federal court")).

The Court notes that Glover has not directly addressed the Rhines element of "good cause" in his motion for a stay, although he does contend that he has not engaged in any dilatory tactics. He states that the absence of scientific procedures to test the mask for DNA evidence at the time of his trial excuses his delay in filing this motion for a stay. See Petitioner's Motion for a Stay at 7 (Docket #29). However, the Court need not decide whether "good cause" exists for the failure to exhaust since the proposed claims are plainly without merit.

Turning first to the claim based on Glover's statement to the police, the Court notes that Glover is not arguing that the statement was involuntary or coerced in any way. Rather, the sole basis for the statement's exclusion, according to Glover, is that it is the direct result of an arrest which violated the Fourth Amendment and it is therefore the "fruit of the poisonous tree." In Stone v. Powell, 428 U.S. 465 (1976), respondent argued that physical evidence used in his trial was the product of an illegal arrest. The Supreme Court held that federal courts could not, on a state prisoner's petition for a writ of habeas corpus, consider a claim that evidence obtained in violation of the Fourth Amendment should have been excluded at his trial, when the prisoner has had an opportunity for full and fair litigation of that claim in the state courts. 428 U.S. at 494; accord Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991).

Although Stone involved physical evidence seized in a search, the Supreme Court has since held that the Stone doctrine applies to a Fourth Amendment challenge to the introduction of a confession made after an allegedly unlawful arrest. Cardwell v. Taylor, 461 U.S. 571, 572-73 (1983) (reversing grant of habeas corpus where circuit court of appeals had found that there was an unattenuated causal link between the custodial statements made by respondent and a violation of the Fourth Amendment). Stone clearly governs here and precludes habeas review because Glover's claim that his statement is inadmissible is based on an allegation that his arrest was violative of the Fourth Amendment. Accord, e.g., Dawson v. Donnelly, 111 F. Supp.2d 239, 247 (W.D.N.Y. 2000) (same); Gantt v. Artuz, No. 97 Civ. 3032, 1999 WL 1206733, at *3 (S.D.N.Y. Dec. 16, 1999) (review of claim that arresting officers did not have probable cause to stop petitioner precluded by Stone); Joyner v. Leonardo, No. 99 Civ. 1275, 1999 WL 608774, at *3 (S.D.N.Y. Aug. 12, 1999) (no habeas review of search and seizure claim where probable cause to arrest was questioned); Quinones v. Keane, No. 97 Civ. 3173, 1998 WL 851583, at *4 (S.D.N.Y. Dec. 7, 1998) (no review permitted of search and seizure issues); Walker v. Walker, 259 F. Supp.2d 221, 223-24 (E.D.N.Y. 2003) (claim that weapon seized by police and out-of-court identification made by victim should be suppressed because arresting officers did not have a reasonable suspicion to justify their initial pursuit not cognizable under Stone).

Stone requires only that "the state have provided the opportunity to the state prisoner for full and fair litigation of the Fourth Amendment claim." Gates v. Henderson, 568 F.2d 830, 839 (2d Cir. 1977) (emphasis added). Under this standard, there are only two instances in which a Fourth Amendment claim will be reviewed by a federal habeas court: (1) where the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) where the state has provided a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan, 975 F.2d at 70 (citing Gates, 568 F.2d at 840).

Clearly, New York has provided the requisite corrective procedures to address Glover's Fourth Amendment claim. See N.Y. Crim. Proc. Law § 710.10; Capellan, 975 F.2d at 70 n. 1 (noting that "federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in . . . [N.Y. Crim. Proc. Law § 710.10], as being facially adequate") (quotations and citations omitted). Although the Second Circuit has not defined precisely what constitutes an "unconscionable breakdown," it has observed that some type of "disruption or obstruction of a state proceeding" is required. Capellan, 975 F.2d at 70; see also Joyner, 1999 WL 608774, at *4 ("[A]n "unconscionable breakdown" in the underlying process arises only when "there has been no meaningful inquiry by the state courts into the petitioner's Fourth Amendment claim or when a 'procedural catch-22' prevents the merits of petitioner's claim from ever being heard by any state court.") (quoting Burton v. Senkowski, No. 94 Civ. 3836, 1995 WL 669908, at *4 (E.D.N.Y. Nov. 5, 1995) (citing Cruz v. Alexander, 477 F. Supp. 516, 523 (S.D.N.Y. 1979), appeal dismissed, 622 F.2d 573 (2d Cir. 1980)).*fn2

Here, Glover availed himself of New York's corrective procedures: a suppression hearing was held in Monroe County Court after which the judge made extensive findings of fact and concluded as a matter of law not only that the prosecution presented sufficient evidence of probable cause to arrest Petitioner but also that his statement to police was voluntary beyond a reasonable doubt. See April 29, 1996 County Court Order (Docket #33-2). Glover has not alleged that there was any breakdown in the process afforded to him. Thus, his Fourth Amendment claim is not reviewable by a federal habeas court, and no purpose would be served by granting a stay to permit him to exhaust it state court.

I turn next to Glover's "actual innocence" claim. In Herrera v. Collins, 506 U.S. 390, 404-05, 417 (1993), the Supreme Court rejected a habeas petitioner's claim of actual innocence based on several affidavits exculpating him as a perpetrator. Petitioner Herrera argued that he was entitled to habeas relief because newly discovered evidence showed that his conviction was factually incorrect. The Supreme Court began by reviewing its jurisprudence regarding the "fundamental miscarriage of justice" exception which allows a petitioner, otherwise subject to defenses of abusive or successive use of the writ, to have his federal constitutional claim considered on the merits if he makes a proper showing of actual innocence. Id. (citing Sawyer v. Whitley, 505 U.S. 333 (1992)). This rule, the Supreme Court observed, "is grounded in the 'equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons." Id. (citing McCleskey v. Zant, 499 U.S. 467, 502 (1991)). However, that body of habeas jurisprudence "makes clear that a claim of 'actual innocence' is not itself a constitutional claim, but instead a gateway through which a habeas petitioner ...


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