The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Proceeding pro se, Bruce D. Mobley ("Mobley" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction and custody after a jury verdict in New York State Supreme Court (Erie County), on charges of assault in the first degree (New York Penal Law ("P.L.") § 120.10(1)), criminal possession of a weapon in the second degree (former P.L. § 265.03(2)) and criminal possession of a weapon in the third degree (former P.L. § 265.02(4)).
In his petition, Mobley raises the following grounds for relief: (1) the trial court's suppression ruling was incorrect; (2) the testimony of Detective Beltz and Officer Dragone was improperly admitted at trial; (3) the trial court abused its discretion in denying the defense request for a missing witness charge; (4) the verdict is against the weight of the credible evidence; and (5) trial counsel failed to provide constitutionally effective assistance.
Respondent answered the petition, interposing the affirmative defense to certain of Mobley's claims and arguing that they all are, in any event, without merit or not cognizable on habeas review. (Docket Nos. 6 & 7). Petitioner filed a memorandum of law in reply to Respondent's answer and opposition. (Docket No. 12).
The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
For the reasons that follow, the petition is dismissed.
II. Standard of Review Under 28 U.S.C. § 2254, as Amended by AEDPA
When a petitioner "in custody pursuant to the judgment of a State court" seeks habeas review of "any claim that was adjudicated on the merits in State court," a habeas writ may issue only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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). A state court decision is "contrary to" federal law as determined by the Supreme Court if either (a) "the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law," or (b) "the state court considers facts that are materially indistinguishable from a relevant Supreme Court case and arrives at an opposite result." Williams v. Taylor, 529 U.S. 362, 405 (2000)). An "unreasonable application" of clearly established federal law occurs if (a) "'the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,'" or (b) the "state court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply, or fails to extend it where it should apply." Williams, 529 U.S. at 407.
Factual findings by a state court are entitled to a presumption of correctness, 28 U.S.C. § 2254(e)(1), which the habeas applicant bears the burden of overcoming by clear and convincing evidence, id.
III. The Adequate and Independent State Ground Doctrine and Procedural Default
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations and internal quotations omitted). Even where the state court also considers a petitioner's arguments on the merits, that is of no moment because "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10; accord Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).
To show a "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992) ("The miscarriage of justice exception is concerned with actual as compared to legal innocence."). The Supreme Court has emphasized that the exception has a "narrow scope," Sawyer, 505 U.S. at 339. "To be credible," a claim of actual innocence must be based on reliable evidence not presented at trial[,]" Schlup v. Delo, 513 U.S. 298, 324, 115 S.Ct. 851, 865, 130 L.Ed.2d 808 (1995); accord Calderon, 505 U.S. at 339.
IV. Analysis of the Petition
A. Ground One: Petitioner's Statement Should Have Been Suppressed Under the "Fruit of the Poisonous Tree" Doctrine
Mobley contends that his oral statement should have been suppressed as the product of an illegal arrest. The testimony of Detective James Reese ("Det. Reese") at the Huntley hearing revealed that while on patrol on December 21, 2002, at 8:45 a.m. in the vicinity of Goodyear and Sycamore streets, he observed Petitioner leave a deli and enter the passenger side of a car parked nearby. Det. Reese recognized petitioner from prior contact and also from a photograph of petitioner he had with him. Additionally, the Major Case Unit of the Buffalo Police Department had distributed a flyer with Petitioner's photograph and instructions to apprehend him because he had been identified in a shooting that had occurred at 78 Gibson Street.
Det. Reese activated his lights and pulled the car over. While his partner approached Petitioner's side of the car, Det. Reese went to ask the driver his name. When Det. Reese overheard Petitioner falsely respond that his name was Donald Williams, Det. Reese went to the passenger's side and asked Petitioner to get out of the car. In response to Det. Reese's inquiry for his name, Petitioner insisted that it was "Donald Williams." It was not until Det. Reese told him that he knew Petitioner's name was "Bruce" that petitioner admitted his name was "Bruce Mobley."
After arresting Mobley, Det. Reese advised him of his Miranda warnings and transported him to police headquarters. Det. Reese recalled that during his encounter with Petitioner, no guns were drawn and Petitioner was not handcuffed.
Det. Reese admitted that there had been no outstanding arrest warrant for Petitioner on December 21, 2002. He recalled that he had reviewed the file which contained statements about the Gibson Street shooting and a photo array, and was aware from his review of the file that Petitioner had been accused of shooting George Doran in front of 78 Gibson Street a few weeks earlier.
In a Decision and Order dated May 29, 2003, the trial court denied suppression of Petitioner's statement on the ground that it was not the product of a custodial interrogation, and that there was probable cause for Petitioner's arrest.*fn1
On direct appeal, Mobley argued that his statement should have been suppressed because his arrest was made without probable cause, contrary to the finding of the suppression court. The Appellate Division held that "inasmuch as he failed to request a probable cause hearing or to raise that contention at the Huntley hearing," he "failed to preserve [that contention] for [the court's] review. . . ." People v. Mobley, (citing People v Barton, 13 A.D.3d 721, 723 (2004); People v. Purcelle, 282 A.D.2d 824, 824-825 (2001)).
Respondent argues that the claim is procedurally defaulted due to the Appellate Division's reliance upon an adequate and independent state ground to dismiss it. Petitioner appears to argue that even if the claim is procedurally defaulted, the ineffectiveness of his trial counsel in failing to request a probable cause hearing constitutes "cause" to excuse the procedural default.
Respondent also argues that because the claim asserts a Fourth Amendment violation, it is barred from habeas review because Petitioner had a full and fair opportunity to litigate the claim in state court. Petitioner appears to be arguing that there was an "unconscionable breakdown" in the state's corrective process and that he was denied an "opportunity" to litigate the claim because trial counsel was ineffective.
Here, the claim may be easily disposed of because it asserts a Fourth Amendment claim precluded under the doctrine of Stone v. Powell, 428 U.S. 465 (1976), and thus there is no need to resolve the procedural default issue.
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. at 481-82. (emphasis added). In Gates v. Henderson, 568 F.2d 830 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038 (1978)), the Second Circuit developed a "litmus test" for determining when a petitioner has denied an "opportunity" for a "full and fair litigation of his fourth amendment claims." Gates, 568 F.3d at 839, 840; accord Capellan v. Riley, 975 F.2d 67, 69-71 (2d Cir.1992); see also McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir.1983). The Second Circuit concluded, in light of the Supreme Court's holding in Powell that the state is only required provide the "opportunity"to the state prisoner for a full and fair litigation of the Fourth Amendment claim.
Review of Fourth Amendment claims presented by habeas petitioners would be undertaken in only one of two instances, explained the Second Circuit. First, habeas review of Fourth Amendment claims would be warranted "if the State provided no corrective procedures at all to redress the alleged Fourth Amendment violations." Capellan, 975 F.2d at (quoting Gates, 568 F.2d at 840 and citing McPhail, 707 F.2d at 70). Second, "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,'" the habeas court should undertake habeas review. Id. (quoting Gates, 568 F.2d at 840); accord Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002) ("[O]nce it is established that a petitioner has had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took advantage of the state's procedure), the court's denial of the claim is a conclusive determination that the claim will never present a valid basis for federal habeas relief. . . . [T]he bar to federal habeas review of Fourth Amendment claims is permanent and incurable absent a showing that the state failed to provide a full and fair opportunity to litigate the claim[.]").
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, 299 F.3d at 134. Mobley does not, and cannot contend that New York failed to provide a corrective procedure to redress his alleged Fourth Amendment claim. This is because he took advantage of the opportunity to challenge the legality of his arrest by means of New York's procedure for litigating Fourth Amendment claims, embodied in New York Criminal Procedure Law § 710.10 et seq., which has been held by federal courts in New York to be "'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)). Although Mobley did not specifically assert the argument that the statement should have been suppressed as being the product of an arrest without probable cause, the suppression court specifically adjudicated the underlying issue of whether there was probable cause for his arrest.
To the extent that Mobley is asserting that the state courts erroneously decided his motion to suppress, he essentially is asking this Court to conduct a de novo factual review of his claims. The relief requested, however, is expressly forbidden by the Stone v. Powell doctrine, as the Second Circuit has explained many times: A petitioner's mere dissatisfaction or disagreement with the outcome of a suppression motion is not sufficient to establish that an "unconscionable breakdown" occurred in the existing process in violation of the petitioner's Fourth Amendment rights under the Constitution. Capellan, 975 F.2d at 71 ("[T]o the extent that [petitioner] claims that the Appellate Division erred in its ruling . . . , this would not give us 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.") (emphasis supplied); Gates v. Henderson, 568 F.2d at 840 ("Stone v. Powell . . . holds that we have no authority to review the state record and grant the writ simply because we disagree with the result reached by the state courts.").
The Second Circuit has explicitly rejected the possibility of interpreting Stone v. Powell to require the reviewing court to focus on the correctness of the state court's corrective procedures for adjudicating Fourth Amendment claims, rather than on the existence and application of the corrective procedures themselves. According to the Second Circuit, to subject a habeas petitioner's previously litigated Fourth Amendment claims to further federal review would be to assume, "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. Stone v. Powell, however, "expressly discouraged" it from making such an assumption. Id. (citing Powell, 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."). To the extent Mobley contends that he is entitled to further review of his claims because the trial court's allegedly erroneous fact-finding, incorrect application of the law, and refusal to consider the pertinent issues during the suppression hearing, constituted an "unconscionable breakdown" in state process, the Court disagrees, given the circumstances presented here.
Although the Second Circuit has not defined precisely when an unconscionable breakdown has occurred, it observed in Capellan that its citations in Gates v. Henderson to Frank v. Mangum, 237 U.S. 309 (1915),*fn2 and to Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963), "illustrate the sort of 'disruption or obstruction of a state proceeding' typifying an unconscionable breakdown." Capellan, 975 F.2d at 70 (citing Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y.1987); Cappiello v. Hoke, 698 F. Supp. 1042, 1050 (E.D.N.Y.), aff'd, 852 F.2d 59 (2d Cir. 1988) (per curiam)). As the district court pointedly observed in Cappiello v. Hoke, "an unconscionable breakdown in the state's process must be one that calls into serious question whether a conviction is obtained pursuant to those fundamental notions of due process that are at the heart of a civilized society." 698 F. Supp. at 1050.
Clearly, then, a petitioner's mere disagreement with the outcome of the state courts' rulings "is not the equivalent of an unconscionable breakdown in the state's corrective process." Capellan, 975 F.2d at 72; accord, e.g., Watkins v. Perez, No. 05 Civ. 477(GEL), 2007 WL 1344163, *23 (S.D.N.Y. May 30, 2007) (holding that without more, rejection by state appellate court of petitioner's Fourth Amendment claims, is not an "conscionable breakdown" in the state's corrective process; noting that a "habeas court cannot grant relief simply because it may disagree with the state court's resolution of the claim"); Woods v. Kuhlmann, 677 F. Supp. 1302, 1306 (S.D.N.Y. 1988) ("The doctrine of Stone v. Powell, however, forbids de novo review of state court fact-finding on a Fourth Amendment issue particularly where, as here, the petitioner can claim only that the issue was wrongly decided."); Huntley v. Superintendent, No. 9:00CV191, 2007 WL 319846, at *8 (N.D.N.Y. Jan. 30, 2007); Gonzalez v. Superintendent, Sullivan Corr. Fac., 761 F. Supp. 973, *977 (E.D.N.Y. 1991) (state court denied habeas petitioner's request for a probable cause hearing because petitioner did not advance sufficient sworn allegations in his motion papers; district court held that denial of probable cause hearing was not an "unconscionable breakdown" in the process afforded by the state; petitioner was provided with a full and fair opportunity to litigate his fourth amendment claim in the state courts; "[t]he fact that petitioner was denied his request for such a hearing does not, in and of itself, affect the legitimacy of the state process") .
In the present case, the Court cannot find evidence of an "unconscionable breakdown" of the Fourth Amendment process afforded him. Federal habeas review of Mobley's Fourth Amendment claim regarding the stop of his vehicle and subsequent arrest, and search and seizure, is unavailable under the doctrine of Stone v. Powell, supra. Accordingly, this claim must be dismissed.
B. Ground Two: Erroneous Admission of Hearsay Testimony
Petitioner argues that the court erred in admitting hearsay testimony from two police officers at trial. Specifically, he claims that the testimony of Detective Beltz to the effect that during her investigation, "she came up with the name of a suspect", was inferential hearsay based on information she received from others. Petitioner also argues that Officer Dragone's testimony concerning her conversation with the ...