IJAL SUDLER, Petitioner, pro se
THOMAS B. LITSKY, Asst. Attorney General for Respondent
ANDREW T. BAXTER, Magistrate Judge.
This matter has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner brings this action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction rendered in the Albany County Court on February 15, 2008. Petitioner was convicted after a jury trial of two counts of Criminal Possession of a Controlled Substance, Third Degree, N.Y. Penal Law § 220.16 (Counts One and Three); one count of Criminal Possession of a Controlled Substance, Fourth Degree, N.Y. Penal Law § 220.16 (Count Four); one count of Criminal Possession of a Controlled Substance, Fourth Degree, N.Y. Penal Law § 220.09 (Count Two); and one count of Criminally Using Drug Paraphernalia, Second Degree, N.Y. Penal Law § 220.50 (Count Six). Petitioner was sentenced as a second felony offender to an aggregate determinate sentence of thirty years to be followed by three years of post-release supervision. The Appellate Division, Third Department affirmed his conviction on July 22, 2010, and the New York Court of Appeals denied leave to appeal on December 1, 2010. People v. Sudler, 75 A.D.3d 901, 906 N.Y.S.2d 373 (3d Dep't 2010), lv. denied, 15 N.Y.3d 956 , 917 N.Y.S.2d 116, 942 N.E.2d 327 (2010).
Petitioner raises eight grounds in his amended petition for this court's review:
(1) the police lacked probable cause for petitioner's arrest and for the search warrant for Apartment 405, Bleeker Terrace ("apartment 405");
(2) Detective Vincent should not have been permitted to testify as both a fact and expert witness;
(3) the trial court gave an improper jury instruction on the purpose of summations;
(4) the prosecutor engaged in misconduct by using the personal term "I" when asking the jury to find the petitioner guilty;
(5) the evidence was insufficient to establish petitioner's guilt;
(6) the trial court should have granted petitioner's motion for a mistrial after the prosecutor elicited testimony about an uncharged crime that was not part of the People's Molineux  application;
(7) ineffective assistance of trial counsel for failing to preserve the claims in grounds 2, 3, and 4, above; and
(8) the county court improperly found petitioner to be a second felony offender, and directed that certain sentences run consecutively.
Am. Pet. at 7-8, Dkt. No. 5. Respondent has filed an answer and memorandum of law, together with the pertinent state court records. (Dkt. Nos. 12-14). For the following reasons, this will recommend dismissal of the petition.
I. Factual Background
After receiving tips from two informants that petitioner was in the area with drugs, the City of Albany Police Department surveilled petitioner's vehicle and apartment 405. Police also listened to a cellular telephone conversation while an informant made arrangements for a controlled purchase of crack cocaine from petitioner. Soon afterward, police arrested Boshaun Gregory, who was driving petitioner's car to deliver the drugs. Petitioner was arrested after he arrived at the scene to retrieve his car. After obtaining a warrant, police searched apartment 405 and found narcotics and drug paraphernalia. See People v. Sudler, 75 A.D.3d at 901-02.
Petitioner was indicted on three counts of criminal possession of a controlled substance in the third degree, one count of criminal possession of a controlled substance in the fourth degree, one count of criminal possession of marijuana, and one count of criminally using drug paraphernalia in the second degree. Petitioner's motion to suppress physical evidence was denied, and petitioner fled. As a result, petitioner was tried in absentia by a jury. See People v. Sudler, 75 A.D.3d at 902. Petitioner was subsequently arrested pursuant to a bench warrant on February 7, 2008, and sentenced on February 15, 2008 to thirty years of incarceration followed by three years of post-release supervision. (Feb. 15th Sent. Tr. 2, 15, Dkt. No. 13-2).
A. Legal Standards
In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a petitioner may not challenge an allegedly unconstitutional search and seizure in an application for federal habeas relief. Id. at 481-82; see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). The Second Circuit has determined that review of a Fourth Amendment claim in a habeas corpus application is proper only if: (1) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in that process. See Capellan, 975 F.2d at 70; Gates v. Henderson, 568 F.2d 830, 839-40 (2d Cir. 1977). New York provides an approved mechanism for litigating Fourth Amendment claims. See Capellan, 975 F.2d at 70 (citing N.Y. Crim. Proc. § 710.10 et seq.).
Petitioner argues, as he did in his appeal to the Appellate Division, that his conviction should be overturned because his motion to suppress evidence should have been granted. ( See Am. Pet. 7-9; Dkt. No. 5). Petitioner bases his claim on the allegation that the officers arrested him and obtained a search warrant for apartment 405 without probable cause. Id. Petitioner's Fourth Amendment claim is barred from federal habeas review by Stone v. Powell . Petitioner utilized New York State's mechanism by making his motion to suppress, which the trial court denied. Petitioner then appealed the trial court's decision, and the Appellate Division denied his appeal and upheld the decision of the trial court. Petitioner has not here alleged any facts that would demonstrate an unconscionable breakdown of the process. Based upon ...