The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Pro se petitioner Bruce Eckhardt filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the judgment entered on July 23, 2001, in New York State Supreme Court, convicting him, after a jury trial, of murder in the second degree, and sentencing him to an indeterminate term of from twenty-five years to life. (Dkt. No. 1.) In a Report-Recommendation and Order (R&R) filed March 25, 2010, Magistrate Judge George H. Lowe recommended that Eckhardt's petition be denied.*fn1 (Dkt. No. 13.) Pending are Eckhardt's objections to the R&R. (Dkt. No. 18.) For the reasons that follow, the R&R is adopted in its entirety, and Eckhardt's petition for a writ of habeas corpus is denied and dismissed in its entirety.
Eckhardt was convicted of murdering his estranged girlfriend, Donna Evans. Prior to trial he moved to suppress physical evidence that had been seized, without a warrant, from the residence he had shared with Ms. Evans and from a rental car. He also sought to suppress statements that he had made that were obtained without prior Miranda warnings and at a time when he claims he was represented by counsel.
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
Eckhardt contends that this court should review his Fourth Amendment claim despite Judge Lowe's recommendation to the contrary. Specifically, Eckhardt contends that his Fourth Amendment rights were violated when evidence was used against him that had been obtained pursuant to an unconstitutional search and seizure. This court concurs with Judge Lowe's determination that this claim is unreviewable.
As Judge Lowe correctly points out, Stone held that habeas relief is unwarranted if the state courts provided "an opportunity for full and fair litigation" of a claim under the Fourth Amendment. Stone v. Powell, 428 U.S. 465, 482 (1976). The Second Circuit has held that a review of Fourth Amendment claims in habeas petitions would be undertaken in only one of two instances: (a) if the state has 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 petitioner was precluded from using that mechanism because of an unconscionable breakdown in the underlying process. Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). Eckhardt contends that the decision of the state court after the hearing was "an unconscionable breakdown" in the process. As Judge Lowe notes, despite Eckhardt's disagreement with the state court decision, there was not an "unconscionable breakdown" of the state court procedures and thus this claim in unreviewable by this court. Accordingly, the R&R is adopted on this issue.
2. Fifth and Sixth Amendment
Eckhardt objects to Judge Lowe's findings that his unexhausted claim is procedurally barred and that presentation in the state forum would be futile. Specifically, he contends that "a writ of error coram nobis could be considered a form of collateral attack ... [he could] return to state court and file a writ of error coram against appellate counsel for all the errors that ...