The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Gavin L. Kirkland ("Kirkland" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his 2004 conviction, following a jury trial in New York State Supreme Court (Erie County), on four counts of second degree robbery and one count of attempted second degree robbery. Petitioner is currently incarcerated at Attica Correctional Facility.
II. Factual Background and Procedural History
On September 15, 2002 at 1:30 a.m., Buffalo police officers responded to two calls of robberies, one at Wegmans Grocery Store and the other at a Mobil convenience store. The police found a vehicle matching the description of the suspect's vehicle at Grant and Bird Streets, and a weapon was located in the vehicle. After obtaining a description of the suspect--a black male in a white shirt with dark vertical stripes--the police observed Kirkland, who matched that description. crossing the street. The officer called to Kirkland, who promptly put his hands in the air and asserted that he was not a drug dealer. Kirkland, who stated that he was coming from a friend's house and was drunk, appeared to be perspiring. Kirkland had $127.00 in his hand and was not far from either robbery scene when he was stopped by the officers.
Within an hour of the robberies, Petitioner was taken to Wegmans and escorted into the lobby area where he was identified during a show-up procedure. Petitioner then was taken to the Mobil convenience store where two separate identifications were made.
In addition to the Wegmans and Mobil robberies, at trial the prosecution presented evidence of two other incidents. Two days before the Wegmans and Mobil robberies Kirkland entered a Wilson Farms convenience store and robbed the employees at gunpoint. Although Kirkland's face was partially covered, the store clerk was able to recognize Kirkland's "distinctive" voice. Kirkland was known to the clerk, who had dealt with him on numerous prior occasions.
On the day before the Wegmans and Mobil robberies, Petitioner entered a Subway restaurant and displayed a gun and ordered the employees to hand over money to him. The robbery was captured on the store's surveillance videotape.
In support of his alibi defense, Kirkland called his employer who testified that Kirkland was working at his barbershop on September 15, 2002, until about 10:45 p.m. The employer was mistaken about the date, because Petitioner was in custody at the time.
Petitioner was sentenced as a second felony offender to four fifteen-year determinate terms of incarceration for each of the robbery counts, and one seven year count for the attempted robbery count, all terms to be served consecutively. A mandatory five-year term of post-release supervision also was imposed.
On direct appeal, the Appellate Division, Fourth Department, agreed with Kirkland that the consecutive sentences rendered his aggregate term of imprisonment unduly harsh and severe. It therefore unanimously modified the judgment, as a matter of discretion in the interest of justice, so that the sentences imposed on each count of robbery in the second degree would run concurrently with respect to each other. As modified, the judgment was affirmed. People v. Kirkland, 49 A.D.3d 1260 (App. Div. 4th Dept. 2008). Leave to appeal was denied.
This timely habeas petition followed. For the reasons that follow, Kirkland's request for a writ of habeas corpus is denied.
III. Analysis of the Petition
A. Fourth Amendment Violation
Petitioner claims he was subject to a seizure in violation of the Fourth Amendment because the police officers lacked reasonable suspicion to detain him. Habeas review of this claim is precluded under Stone v. Powell, 428 U.S. 465 (1976), in which the Supreme Court held that so long as the State "has provided an opportunity for a 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 trial." Id. at 481, 482. The Second Circuit has interpreted Powell to mean that habeas review of Fourth Amendment claims is available only to the extent that a petitioner can demonstrate (1) that the state has provided no corrective procedures at all to redress the alleged Fourth Amendment claim; or (2) when 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. Capellan v Riley, 975 F2d 67, 70 (2d Cir. 1992).
Here, Petitioner took advantage of the opportunity provided by N.Y. Crim. Proc. Law § 710.60, litigating his Fourth Amendment at the trial level and on appeal. He has not demonstrated, nor can he demonstrate, that there was an "unconscionable breakdown" in the corrective process afforded to him. Accordingly, the Court dismisses Kirkland's Fourth Amendment without reaching the merits.
B. Suggestive Identification Procedure
Petitioner claims that the show-up and photo array identification procedures were improper. On direct appeal, the Appellate Division, Fourth Department, rejected these claim as follows:
"Showup identifications 'are strongly disfavored but are permissible if exigent circumstances require immediate identification . . . or if the suspects are captured at or near the crime scene and can be viewed by the witness immediately'". Here, the two showup identifications were conducted approximately one mile from the crime scenes and one hour after the commission of the last robbery, and we conclude that none of the showup identifications was unduly suggestive. Also contrary to defendant's contention, the two photo array identifications of defendant by the two other robbery victims were not unduly suggestive. The individuals depicted in the two photo arrays have ...