United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
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. Those proceedings were unsuccessful, and
he has now commenced the instant case seeking habeas corpus
relief under 28 U.S.C. § 2254.
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.
State Law Claims (Petition Grounds One and Two)
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. 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.”
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
petitioner's claims on these points are rejected.
Fourth Amendment Claim (Petition Ground Four)
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.
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).
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.
Ineffective Assistance of Trial Counsel (Petition Ground
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.
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