The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Proceeding pro se, Jimmy Donaldson ("Donaldson" or "Petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a jury trial in New York State Supreme Court (Monroe County). Donaldson was indicted and tried on charges of assault in the second degree (New York Penal Law ("P.L.") § 120.05), resisting arrest (Penal Law § 205.30), criminal possession of stolen property in the fourth degree (Penal Law § 165.45), unauthorized use of a motor vehicle in the third degree (Penal Law § 165.05), unlawful possession of marijuana (Penal Law § 221.05), aggravated unlicenced operation of a motor vehicle in the third degree (Vehicle and Traffic Law § 511[a]) and speeding (Vehicle and Traffic Law § 1180[b]). The jury returned a verdict convicting Petitioner of all of the charges except the speeding charge.
On May 10,2005, Petitioner was sentenced to a determinate term of seven years and a mandatory term of five years post-release-supervision for the assault conviction, to be served concurrently with a one-year sentence for resisting arrest, both sentences to be served consecutively to a term of two to four years for criminal possession of stolen property in the fourth degree. These sentences were to be served concurrently with a one-year term for unauthorized use of a motor vehicle in the third degree and a thirty-day term for aggravated unlicenced operation of a motor vehicle in the third degree. Thus, his aggregate sentence was for a total of 9 to 13 years in prison.
On direct appeal, Petitioner raised one issue: Whether the stop of his vehicle violated the Fourth Amendment's prohibition against unreasonable searches and seizures. Petitioner maintained that the stopping of his vehicle was impermissible in that he was not suspected of any crime and did not commit and vehicle and traffic law infraction. There were no exigent circumstances existing so as to warrant the police intrusion in this case.
In Donaldson's case, while driving in the area of Genesee and Bailey Streets in the city of Buffalo, the police visually estimated that he was traveling ten to fifteen miles per hour over the posted speed limit. After an attempt to follow the vehicle the officer pulled over the vehicle for a traffic stop. The officer was instructed by radio that the vehicle was stolen and to use caution as backup was on its way. The officer approached the car and held a casual conversation about the dangers of smoking marijuana with a child in the car as the smell of marijuana was evident to the officer. The officer asked defendant to exit the car, and Donaldson complied. The officer ordered him up against the car for the purpose of searching him, whereupon Donaldson blurted out a profane statement, which implied his knowledge that the car was stolen, saying something to the effect that, "I'm not going to jail for any stolen car." As soon as Donaldson uttered the statement, he took a swing at the officer and started running away. When caught, Donaldson fought the officer; they traded punches and kicked each other, and Donaldson even dragged the officer across the pavement. Donaldson was eventually subdued and arrested. Upon the arrest, marijuana was found in Donaldson's pants, along with a knife.
Donaldson argued that the stop was motivated exclusively by the desire to look into whether or not the car's occupants were involved in a drug transaction. No tickets were ever issued for any speeding; that charge was an afterthought, he argued. Therefore, everything that flowed from the stop including the physical evidence seized as a result of it must be suppressed.
The People argued that the stop was lawful since any automobile traveling on a public highway "may be stopped for a 'routine traffic check' when a police officer reasonably suspects a violation of the Vehicle and Traffic Law." Speeding is obviously a violation of the Vehicle and Traffic Law § 1180(b). The degree of suspicion required to justify a traffic stop is minimal. After a hearing the trial court concluded that Police Officer Daniel O'Neill's testimony that he observed defendant's vehicle speeding was "entirely credible". Thus, the People argued, the stop orchestrated by the officer was justified by the traffic violation observed by the officer and the suppression court made the correct decision not to suppress the evidence obtained after the traffic stop because of the propriety of the stop.
By an order dated December 22, 2006, the Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction. People v. Donaldson, 35 A.D.3d 1242 (App. Div. 4th Dept. 2006). The court determined that the stop of Petitioner's vehicle did not violate the Fourth Amendment.
Contrary to the contention of defendant, [the suppression court] properly refused to suppress the evidence seized by the police after they stopped the stolen vehicle in which he was riding. The record does not support defendant's contention that the court should have suppressed the evidence because the stop of the vehicle was a pretext to investigate a possible drug transaction. The arresting officer testified at the suppression hearing that he observed the vehicle exceed the speed limit by 10 to 15 miles per hour and, "where a police officer has probable cause to detain a person temporarily for a traffic violation, that seizure does not violate the Fourth Amendment to the United States Constitution even though the underlying reason for the stop might have been to investigate some other matter" (People v Robinson, 97 NY2d 341, 348 (2001); see Whren v United States, 517 US 806 (1996) [("[T]he Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent. . . .For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.")]). Contrary to defendant's further contention, the testimony of the arresting officer at the suppression hearing was not incredible as a matter of law.
Donaldson, 35 A.D.3d at 1243, 2006 N.Y. Slip Op. 09856. By an order dated May 1, 2007, the New York Court of Appeals denied leave to appeal. People v. Donaldson, 8 N.Y.3d 984 (N.Y. 2007).
This timely habeas petition followed, in which Donaldson raised the Fourth Amendment claim presented on direct appeal. Respondent, in his answer to the petition, asserts that the claim is not cognizable on federal habeas review and must be dismissed. Donaldson did not submit a traverse in reply to Respondent's opposition.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 ...