The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
The petitioner, appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking to vacate his judgment of conviction. After a jury trial in New York State Supreme Court, Bronx County, the petitioner was convicted of one count of criminal possession of a controlled substance in the first degree. On April 3, 2000, he was sentenced to an indeterminate sentence of fifteen years to life. On March 30, 2007, pursuant to New York's Drug Law Reform Act of 2004, the petitioner was resentenced to a determinate term of sixteen years imprisonment.
The petitioner argues in his petition that (1) the introduction of illegally seized evidence at trial violated his rights under the Fourth Amendment to the United States Constitution; (2) he was improperly cross-examined regarding his prior drug convictions, depriving him of his right to due process under the Fourteenth Amendment to the United States Constitution; (3) he was denied effective assistance of trial counsel; and (4) he was denied effective assistance of appellate counsel.
The Court has received and reviewed the July 14, 2011, Report and Recommendation by Magistrate Judge Maas, which recommends that the petition be denied. The Court has also received the petitioner's objections to the Report and Recommendation, which objects to the Magistrate Judge's conclusions that (1) the petitioner was given a full and fair opportunity to litigate his claims regarding the evidence that was introduced, (2) cross-examination of the petitioner regarding his prior drug conviction was not in violation of "clearly established federal law," (3) the petitioner's claim of ineffective assistance of trial counsel is procedurally barred, and (4) the petitioner's appellate counsel's decision not to raise the issue of ineffective assistance of trial counsel did not constitute ineffective assistance of counsel. The petitioner asks that his petition for a writ of habeas corpus be granted.
Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), the Court has reviewed de novo the Magistrate Judge's disposition of the petitioner's claims. For the reasons explained below and in the Magistrate Judge's thorough Report and Recommendation, the Court finds that the objections are unfounded, and the Court adopts the Magistrate Judge's Report and Recommendation.
The petitioner objects to the Magistrate Judge's finding that the petitioner had a full and fair opportunity to litigate his Fourth Amendment claim sufficient to bar reexamination of the claim on habeas review. The petitioner argues that he was the subject of an unconstitutional search and seizure and the evidence subsequently introduced against him should have been suppressed as a violation of the Fourth Amendment to the United States Constitution.
"Federal habeas corpus relief is not available on the ground that evidence produced at trial was the result of an unconstitutional search and seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim." Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991) (citing Stone v. Powell, 428 U.S. 465 (1976)). To demonstrate that he was denied a full and fair opportunity to litigate his Fourth Amendment claim, the petitioner must show either (a) "the state has provided no corrective procedures at all to redress the alleged [F]ourth [A]mendment violations; or (b) if the state has provided a corrective mechanism...the defendant 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) (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977 (en banc)).
As Magistrate Judge Maas correctly concluded, the petitioner has demonstrated neither a lack of corrective procedures nor an unconscionable breakdown in the underlying process. (Report and Recommendation at 19-21.) The corrective procedures were adequate. The petitioner litigated his Fourth Amendment claim pursuant to Section 710 of the New York Criminal Procedural Law. "[F]ederal courts have approved New York's procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim. Proc. § 710.10 et seq. (McKinney 1984 & Supp.1988), as being facially adequate." Capellan, 975 F.2d at 70 n.1 (citations omitted).
Although the petitioner was denied a suppression hearing, the absence of a suppression hearing, in and of itself, does not rise to the level of an "unconscionable breakdown" in the underlying process sufficient to deprive the petitioner of a full and fair opportunity to litigate. See Cimino v. Conway, 08 Civ. 6318, 2011 WL 815677, at *9 (W.D.N.Y. Mar. 2, 2011); Small v. Artus, No. 07 Civ. 1117, 2009 WL 2707319, at *13 (E.D.N.Y. Aug. 20, 2009).
Rather than introduce evidence to demonstrate an unconscionable breakdown in the underlying process, the petitioner reargues the merits of his Fourth Amendment claim. "[M]ere disagreement with the outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the state's corrective process." Capellan, 975 F.2d at 72. Therefore, the petitioner's objection to the rejection of his Fourth Amendment claim is overruled.
The petitioner objects to the Magistrate Judge's finding that the petitioner's right to Due Process under the Fourteenth Amendment to the United States Constitution was not violated by the trial court's decision to allow the prosecution to cross-examine him regarding a prior drug conviction.
"[I]t is not the province of a federal habeas court to re-examine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. 62, 67--68 (1991). Instead, the Court examines whether the admission of the evidence in question so violated the petitioner's Due Process right as ...