The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.
ORDER AND OPINION DENYING PETITION FOR WRIT OF HABEAS CORPUS
On March 23, 2005, Petitioner, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he was being held in state custody in violation of his federal constitutional rights. Petitioner had been convicted, after a guilty plea, in the New York Supreme Court on December 10, 1999 of criminal possession of a controlled substance in the second degree, a violation of N.Y. Penal Law § 220.18, and criminal possession of a weapon in the third degree, a violation of N.Y. Penal Law § 265.02(1). On February 2, 2000, Petitioner was sentenced, pursuant to a plea agreement, to consecutive terms of eight years to life for the controlled substance conviction and two to four years for the weapon conviction. People v. Merejildo, 762 N.Y.S.2d 338 (1st Dep't), lv. denied, 1 N.Y.3d 540 (2003). When this case was assigned to me, Petitioner was no longer in custody, having been released on June 20, 2008 and deported to the Dominican Republic on July 16, 2008.
In an order dated September 26, 2008, I noted that Petitioner's deportation and permanent inadmissibility to the United States were collateral consequences of the underlying New York State convictions and may provide grounds for habeas relief. See Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002); Garcia v. United States, No. 06 Civ. 3115 (RJH) (GWG), 2007 WL 4371671, at *2 (S.D.N.Y. Dec. 13, 2007). I ordered Respondent to submit Petitioner's prior conviction record to the Court, to establish whether the petition met the case or controversy requirement of Article III, § 2 of the United States Constitution. See Perez, 296 F.3d at 125; De la Rosa v. Ebert, No. 03 Civ. 9820 (AKH), 2005 WL 525650, at *3 (S.D.N.Y. Mar. 4, 2005). Respondent submitted the record on December 11, 2008. It showed that Petitioner's only convictions were those that he challenged by his petition for habeas relief. Therefore, in an order dated December 15, 2008, I held that the petition was not moot by reason of an independent bar to reentering the United States, and ordered Respondent to submit a response to the petition.
The issues in the present petition are whether Petitioner was subjected to an unreasonable search and seizure, in violation of the Fourth Amendment, and a cruel and unusual sentence, in violation of the Eighth Amendment.
The question at hand is whether the determination of the New York Supreme Court, as affirmed, was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). For the reasons stated below, Petitioner's arguments are without merit, and the petition is denied.
Petitioner is originally from the Dominican Republic, where he received a tenth-grade education. As an adult in the United States, he worked odd jobs and earned approximately $200 each week, much of which he sent to Santo Domingo to support his ill mother and seven children.
On the night of June 18, 1998, Detective Christopher Acquilino and other police officers, acting on information provided by a confidential informant (C.I.), observed Petitioner leave a parking garage in upper Manhattan carrying a blue plastic shopping bag. According to police testimony, the shopping bag appeared to hold a heavy, brick-shaped object. Petitioner got into the backseat of a livery cab, driven by Jose Perez-Mateo. As the police followed the cab, Acquilino saw Petitioner repeatedly lean forward in his seat. After the cab made a U-turn and appeared to be driving back toward the parking garage, the police officers stopped the cab and ordered Petitioner and Perez-Mateo out of the vehicle. Upon noticing that the back of the front passenger seat hung loose from its frame, Acquilino pulled back some of the loose seat material from the frame and searched the area. He discovered a kilogram of cocaine in the blue plastic shopping bag that Petitioner had been holding before getting into the cab. The police arrested Petitioner and Perez-Mateo. Later, when searching Petitioner, the police recovered a parking garage claim ticket for a gold Mazda. The police obtained a search warrant for the Mazda and discovered eight pounds of cocaine and a gun in that car.
Petitioner was indicted on July 2, 1998 and charged with two counts of criminal possession of a controlled substance in the first degree, and one count of criminal possession of a weapon in the third degree.
II. Procedural History in the New York Supreme Court
On July 13, 1998, Petitioner moved to suppress the cocaine and gun seized by the police from the livery cab and Mazda. Petitioner argued that these items were recovered as the result of an unlawful stop and search, since the police lacked reasonable suspicion to stop the livery cab and probable cause to search the cab and plastic bag. Petitioner also requested disclosure of the search warrant for the Mazda, as well as other supporting evidence that had led the police to make the initial stop of the livery cab and subsequent arrest. On September 17, 1998, Justice Altman ordered a Mapp hearing in order to determine the admissibility of the evidence recovered from the livery cab. At such a hearing, the court determines if physical evidence obtained by the police was illegally obtained, and, therefore, inadmissible. See Mapp v. Ohio, 367 U.S. 643 (1961).
However, on October 22, 1998, the court granted the Government's motion for a protective order denying Petitioner discovery of the search warrant, and an affidavit and other testimony supporting the warrant, in order to protect the identity and safety of the C.I. The prosecutor also requested that the court review such materials ex parte and in camera, pursuant to a Castillo hearing. In a Castillo hearing, the court seals the materials supporting the warrant and questions the C.I. privately to protect his or her identity. See People v. Castillo, 80 N.Y.2d 578, 584-85 (1992); People v. Seychel, 518 N.Y.S.2d 754 (Sup. Ct. N.Y. Cty. 1987). On February 2, 1999, Petitioner objected to the prosecutor's request for a Castillo hearing, arguing that the request was untimely, that a Castillo hearing was inappropriate in the present case, and that a regular Mapp hearing would still allow the prosecutor to object to questions that could reveal the identity of the C.I.
On March 11, 1999, the court granted the prosecutor's request to hold a Castillo hearing instead of the ordinary Mapp hearing, and again denied discovery of the search warrant and documents supporting the warrant. The court agreed with the prosecutor that disclosure of this information could reveal the identity of, and thus endanger, the C.I., who continued to provide the police with information. Further, the court held that the documents could not be redacted meaningfully while still ensuring the safety of the C.I. After acknowledging that Castillo dealt with a search pursuant to a warrant, Justice Altman ruled that a Castillo hearing was appropriate, and authorized an ex parte, in camera hearing to evaluate the stop and search of the livery cab. Petitioner objected and argued that the search warrant was the fruit of the illegal search of the livery cab, but Justice Altman found that most of the information supporting the warrant was provided by the C.I. Therefore, aside from the cocaine found in the livery cab, the same facts predicated both searches. Thus, if probable cause had existed for the search of the Mazda, then there had also been probable cause to stop and search the livery cab. Justice Altman ruled that the search warrant could be reviewed for sufficiency based only on the information provided by the C.I. A Castillo hearing to determine the legality of the livery cab search was therefore permissible. Petitioner provided a list of seven questions for the court to ask the C.I. during the Castillo hearing.
The court then held the Castillo hearing and, on April 22, 1999, denied Petitioner's suppression motion and concluded that the police had probable cause to stop and search the livery cab. The court held that the subsequent search of the Mazda was constitutional because it derived from the initial search of the livery cab. Therefore, the court concluded that the discovery of cocaine in the livery cab provided the probable cause to arrest and search Petitioner, which in turn led to the discovery of the parking garage claim ticket for the Mazda.
On June 15, 1999, Petitioner moved for reconsideration of his suppression motion, arguing that an in camera, ex parte hearing was inappropriate because, though the police had relied on confidential information, they had also relied on their own observations in choosing to stop and search the livery cab. On July 20, 1999, the court modified its previous order and scheduled a limited, or partial, Mapp hearing to focus on the new ground raised by Petitioner, a focus that could be explored without endangering the C.I. The court ruled that cross-examination of the Government's witnesses would be limited to the issue presented.
Another order, dated July 26, 1999, reiterated the limited nature of the Mapp hearing, stating that only the observations of the police prior to the arrest, separate from the information provided by the C.I., would be addressed, and that the hearing's purpose would be to determine if the police officers' observations were inconsistent with the information provided by the C.I.
The partial Mapp hearing was held on August 31, 1999. Detective Acquilino, the sole witness, recounted the events that led to the stop and search of the livery cab and the subsequent discovery of the plastic bag filled with cocaine. The court found that Detective Acquilino's testimony was not inconsistent with the information supplied by the C.I., and that the police had probable cause to search the livery cab. The court acknowledged that because of the protective order, Petitioner could not evaluate the full basis of the finding, that Detective Acquilino's probable cause to stop the livery cab was soundly based. The court found ...