The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Paul Bridgefourth ("Bridgefourth"), has filed two petitions in this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The first petition, filed on or about August 1, 2005, challenges his conviction following a jury trial in Erie County Court (Buscaglia, J.) on December 18, 2001, to three counts of robbery in the first degree (Penal Law § 160.15(4)). See Petition (Docket No. 1: No. 05-CV-535). The second petition, which is at issue here, was filed on or about October 17, 2005 . This petition challenges his conviction following a guilty plea on April 2, 2002, in Erie County Court (Buscaglia, J.) to multiple charges of first degree robbery, attempted first degree robbery, and second degree menacing. See Petition (Docket No. 1: No. 05-CV-739). The parties have consented to disposition of both matters by the undersigned pursuant to 28 U.S.C. § 636(c).
On August 21, 2006, Bridgefourth submitted a one-sentence letter to the Court that was docketed in No. 05-CV-535. See Docket No. 11: No. 05-CV-535). Bridgefourth stated, "I would like to enter into the District Court a stay of execution [sic] under 28 USC(A) [sic] 2244D and 28 USC 2251 that all judgment be preserve until judgment on 440.10 is render [sic]." See id. The Court has construed this as a motion for a stay and, for the reasons set forth in a separate Order filed in No. 05-CV-535, has denied the motion without prejudice with leave to refile.
With respect to the petition in the present action, No. 05-CV-739, which relates to Bridgefourth's conviction following the guilty plea, respondent has answered the petition and interposed the affirmative defenses of non-exhaustion and procedural default. See Docket Nos. 8, 9: No. 05-CV-739. Bridgefourth submitted a reply memorandum of law, arguing mainly about the outcome of his suppression hearing. See Docket No. 11: No.05-CV-739. The Court observes that the petition filed in No. 05-CV-739 is now ready for decision. For the reasons set forth below, a writ of habeas corpus is denied and the petition is dismissed.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 3, 2000, Bridgefourth was charged in a twelve-count indictment with ten counts of first degree robbery (N.Y. Penal Law § 160.15(3), (4)), one count of attempted first degree robbery (N.Y. Penal Law §§ 110.00, 160.15(4)), and one count of second degree menacing (N.Y. Penal Law § 120.14(1)). The charges stemmed from Bridgefourth's alleged responsibility for the armed robbery of several convenience stores and restaurants, a motel, and other private businesses in Buffalo, New York; Tonawanda, New York; and Amherst, New York during the period of July 2000 to September 2000.
Following a suppression hearing regarding the pre-trial photographic array and line-up procedures, the County Court (Buscaglia, J.) denied Bridgefourth's suppression motion on February 22, 2002. A hearing regarding the legality of Bridgefourth's arrest was conducted, and the trial court ruled against Bridgefourth on that suppression motion. Bridgefourth subsequently pleaded guilty as charged in the indictment and was sentenced as a second felony offender to concurrent terms of imprisonment, the longest of which was twenty-five years. As part of his guilty plea, Bridgefourth did not waive his right to appeal.*fn1
On appeal to the Appellate Division, Fourth Department, Bridgefourth challenged the mug shot that was used in the photographic arrays as the product of an illegal arrest and argued that his sentence was harsh and excessive. At around the same time, Bridgefourth also challenged his conviction after the jury trial, which the Appellate Division designated as Appeal No. 1; the appeal regarding the conviction following the guilty plea was Appeal No. 2. The Appellate Division discussed the merits of both Appeal No. 1 and Appeal No. 2 in a memorandum decision and order entered December 30, 2004. People v. Bridgefourth, 13 A.D.3d 1165, 787 N.Y.S.2d 535 (App. Div. 4th Dept. 2004). On the same day, the Appellate Division also filed an order in respect to Appeal No. 2 only, disposing the claims raised in support of Appeal No. 2 for the same reasons as those set forth in the opinion regarding Appeal No. 1. People v. Bridgefourth, 13 A.D.3d 1168, 786 N.Y.S.2d 751 (App. Div. 4th Dept. 2004). Leave to appeal to the New York Court of Appeals was denied.
This timely habeas petition followed. For the reasons set forth below, the petition is dismissed.
1. Fourth Amendment Violation
Petitioner's arrest was without probable cause.
Bridgefourth contends that his arrest was based only on the "anonymous tipster report" and therefore was without probable cause. See Petition, ¶12(a) at 5 (Docket No. 1: No. 05-CV-739). As respondent argues, this claim based upon an alleged violation of petitioner's Fourth Amendment rights is not cognizable on federal ...