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McCormick v. Hunt

November 20, 2006


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



Petitioner John McCormick ("McCormick") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a guilty plea in Orleans County Court on one count of driving while intoxicated and one count of third degree aggravated unlicensed operation of a vehicle (N.Y York Vehicle & Traffic Law §§ 1192(3), 511(3)(a)). McCormick was sentenced to concurrent terms of imprisonment, the longest of which was one to three years. McCormick presently is incarcerated pursuant to this judgment of conviction. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


The basis for the conviction here at issue stems from McCormick's arrest on March 2, 2003, at about 3:00 p.m. for driving a stolen car while intoxicated and without a license. Prior to stopping McCormick, the police had received a telephone call informing them that the victim's car had been taken by defendant. The police then met the victim at her apartment, where she confirmed that McCormick had taken her vehicle without her permission. The police also learned that the victim did not have license plates on her vehicle. At the time, McCormick did not have a valid driver's license because it had been revoked in connection with a prior conviction for driving while intoxicated. Following the denial of his suppression motion, McCormick pleaded guilty on September 29, 2003, in Orleans County Court (Punch, J.). McCormick's conviction was affirmed on direct appeal.

In his petition for a writ of habeas corpus, McCormick raises the following grounds for relief: (1) the trial court erred in failing to suppress the evidence from the stop of petitioner's vehicle; (2) the Appellate Division allegedly misstated testimony that the victim informed the police that she was at her apartment at the time she informed them that petitioner had taken her car without her consent; (3) the trial court improperly allowed hearsay evidence to be admitted at the suppression hearing; (4) the prosecution failed to meet its burden of proof at the suppression hearing; (5) the trial court erred in relying on hearsay that was presented at the suppression hearing in denying petitioner's motion to suppress; (6) petitioner's plea was not knowing and voluntary; and (7) petitioner was denied his Sixth Amendment right to the effective assistance of trial counsel. See Petition at 5 - 5-d (Docket No. 1).

Fourth Amendment Claims

Respondent correctly argues that claims one, three and four, which all relate to the propriety of the trial court's ruling on his suppression motion, are not cognizable on federal habeas review under the doctrine of Stone v. Powell, 428 U.S. 465 (1976), which generally precludes the re-litigation of Fourth Amendment claims on federal habeas review. See Respondent's Memorandum of Law (Docket No. 6). Claim two (which respondent argues is unexhausted), as well as claim five, also relate to the findings made at the suppression hearing, and likewise are not cognizable here.

In Stone v. Powell, the Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. 465, 481-82 (1976) (emphasis added). Following Stone v. Powell, the Second Circuit developed a "litmus test to discern when a state prisoner has been denied an opportunity for full and fair litigation of his fourth amendment claims." Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978). The panel in Gates observed that "'all that the [Supreme] Court required was that the state [ ] provide[ ] the opportunity to the state prisoner for a full and fair litigation of the Fourth Amendment claim . . . .'" Id. (quoting Gates, 568 F.2d at 839) (emphasis in original). The Second Circuit concluded that review of Fourth Amendment claims presented by habeas petitioners would be undertaken in only one of two instances: (a) if the State 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." Id. (quoting Gates, 568 F.2d 840 and citing McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir. 1983)).

Notably, all that must be shown is that the State has provided an opportunity to litigate the petitioner's Fourth Amendment claim; it matters not whether the petitioner actually "took advantage of the State's procedure." Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002).

Indeed, as the Second Circuit has noted, "the 'federal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. Law § 710.10 et seq. (McKinney 1984 & Supp.1988), as being facially adequate.'" Capellan, 975 F.2d at 70 n.1 (quoting Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989) and citing Gates, 568 F.2d at 837 & n. 4; Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)).

McCormick cannot, and does not contend that New York failed to provide a corrective procedure to redress his alleged fourth amendment claim. Rather, McCormick merely is complaining that the state courts erroneously decided his motion to suppress. Dissatisfaction or disagreement with the outcome of a motion is not sufficient to establish that "an unconscionable breakdown" occurred in the existing process in violation of McCormick's constitutional rights. See Capellan, 975 F.2d at 71 ("Even if [petitioner] were correct in his allegation that the Appellate Division erroneously decided this issue, a petitioner cannot gain federal review of a fourth amendment claim simply because the federal court may have reached a different result.") (citing Gates, 568 F.2d at 839). The Second Circuit explained that reading Stone v. Powell as requiring the reviewing court "to focus on the correctness of the outcome resulting from the application of adequate state court corrective procedures, rather than on the existence and application of the corrective procedures themselves, . . . would be assuming, implicitly at least, that state courts were not responsible forums in which to bring constitutional claims such as is presented herein." Capellan, 975 F.2d at 71. According to the Second Circuit, Stone v. Powell "expressly discourage[d] [it] from making any such assumption." Id. (citing 428 U.S. at 493-94 n. 35) ("[W]e are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States.").

Thus, to the extent that McCormick claims that the state courts erred in their rulings, it does not give this Court the authority to review his claims "since 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." Id. Accordingly, ...

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