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Gibson v. Frank

United States District Court, E.D. New York

January 19, 2017

JASON GIBSON, Petitioner,
v.
LARRY FRANK, Respondent.

          MEMORANDUM DECISION AND ORDER

          BRIAN M. COGAN U.S.D.J.

         After being apprehended in possession or constructive possession of a substantial amount of firearms, ammunition, and drugs, petitioner pled guilty in New York State Court under a plea agreement to one count of criminal drug possession and one count of criminal weapons possession as a predicate felon, for which, pursuant to the agreement, he was sentenced to five years on each charge to run concurrently. He changed his mind less than a year after sentence and filed various collateral proceedings in state court seeking to set aside his conviction.[1] Those proceedings were unsuccessful, and he has now commenced the instant case seeking habeas corpus relief under 28 U.S.C. § 2254.

         Additional facts will be set forth below to the extent necessary to address petitioner's claims. The claims he has raised are either not cognizable on habeas corpus review or without merit, and his petition is therefore denied.

         I. State Law Claims (Petition Grounds One and Two)

         Three of the arguments stated in his federal habeas corpus petition, as was the case when they were raised in state court, allege violations of state law leading up to his plea. Specifically, he alleged in state court, and he alleges here, that: (1) the felony complaint against him did not conform to the requirements of C.P.L. §§ 100.15(3) and 100.40 because it did not contain evidentiary facts; (2) New York law did not permit him to waive his right to indictment and plead to an information, and since the information did not meet the statutory requirements for an indictment under C.P.L. § 190.65, the court was without jurisdiction to convict and sentence him; and (3) the state court failed to advise him of his right to a preliminary hearing under C.P.L. § 180.10.[2] The state court rejected these claims on a number of grounds, both procedural and substantive, including the fact that he had signed waivers of these rights, as well as his right to collaterally challenge his plea. It expressly held that the felony complaint “substantially conforms to the requirements of CPL section 100.15, ” and that CPL § 195.10(1)(b) “provides [that] a defendant may waive indictment and consent to be prosecuted by a Superior Court information.”[3]

         These alleged violations of state law are not cognizable on federal habeas corpus review. See 28 U.S.C. § 2254(a) (permitting federal habeas review only where the petitioner is allegedly in custody in violation of “the Constitution or laws or treaties of the United States”); Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480 (1991) (“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.”); New York ex rel. Turner v. Dist. Att'y of N.Y. Cty., No. 12-cv-3355, 2015 WL 4199135, at *10 & n.7 (S.D.N.Y. July 10, 2015) (state court determination of challenge under N.Y. C.P.L. § 190.65 would not be considered on habeas corpus); Fulton v. Greene, No. 05-cv-6314, 2009 WL 3733046, at *3 (W.D.N.Y. Nov. 5, 2009) (finding that a petitioner's claim under C.P.L. § 190.65 was a “purely state law matter” and was not cognizable on federal habeas review). Although, in his federal habeas petition, petitioner alleges that the failure to apply some of these statutes amount to violations of his constitutionals rights, he is incorrect, and, in any event, he executed a waiver of those statutory rights.

         Accordingly, petitioner's claims on these points are rejected.

         II. Fourth Amendment Claim (Petition Ground Four)

         As part of his state court motion to vacate his plea, petitioner contended that there was no probable cause for his arrest. The state court held, inter alia, that there was. This claim cannot be raised on federal habeas corpus review for several reasons.

         First, it is well established that a habeas petitioner cannot bring claims that arose prior to the entry of his guilty plea to attack his conviction unless those claims are for ineffective assistance of counsel. See Tollett v. Henderson, 411 U.S. 258, 266-67, 98 S.Ct. 1602, 1607-08 (1973); Whitehead v. Senkowski, 943 F.2d 230, 233 (2d Cir. 1991). Second, even if petitioner's conviction had been the result of a jury verdict, the Supreme Court's decision in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037 (1976), precludes federal habeas corpus review of Fourth Amendment claims, as long as state law provides adequate and available procedures for raising such claims. As it pertains to New York law, the Second Circuit has held that New York provides an adequate and available mechanism for raising such claims. See Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992).

         Indeed, the only reason that mechanism was not utilized here is because petitioner pled guilty, which brings the case back to the first reason why his claims are rejected. Moreover, notwithstanding his guilty plea, the § 440.10 court, although recognizing that the guilty plea waived his right of review, alternatively reviewed his Fourth Amendment claim on the merits and found that there was probable cause for his arrest. As shown below, this alternative holding was clearly correct under any standard of review. He is not entitled to present that issue again here.

         III. Ineffective Assistance of Trial Counsel (Petition Ground Three)

         Petitioner asserts that his counsel was deficient in “not making a reasonable investigation into the circumstances of my case” which would have disclosed the “defenses raised in my post-conviction motions, ” i.e., the points set forth above.

         It is not clear that this claim was properly exhausted in the state courts. In his § 440.10 motion, petitioner enumerated four grounds for setting aside his conviction - the three alleged statutory violations and the Fourth Amendment violations set forth above. His motion discussed those at length, and the only possible reference to an ineffective assistance claim appears in the last paragraph, where he stated, “[t]he attorney of record fell short in doing his Due Dilligence [sic] in protecting the rights of his client, which has harmed defendant's chances at fair play at [sic] justice.” There was no reference to any possible ineffective assistance claim at all in his reply affidavit in support of the § 440.10 motion. If he did intend to raise an ineffective assistance claim, the § 440.10 court did not see it, as it made no reference to any such claim in its lengthy decision denying petitioner's motion on both procedural and substantive grounds. Nor did petitioner refer to an ineffective assistance claim in his motion to reargue the § 440.10 court's decision. And ...


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