LaRose v. Payant

Filing 20

REPORT AND RECOMMENDATION: RECOMMENDED that the petition in this matter be DENIED and DISMISSED in all regards; RECOMMENDED, based upon the finding that LaRose has not made a "substantial showing of the denial of a constitutional right" pur suant to 28 U.S.C. § 2253(c)(2), that a certificate of appealability not issue with respect to any of the claims set forth in his position. Objections to R&R due by 6/23/2009 Case Review Deadline 6/29/2009. Signed by Magistrate Judge David E. Peebles on 6/9/2009. {Report & Recommendation served on petitioner via regular mail} (mgh)

IN THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF NEW YORK

RONALD JAMES LaROSE, Petitioner, vs. L E O E. PAYANT, Respondent. Civil Action No. 9 :0 6 -C V -0 4 6 6 (GTS/DEP)

APPEARANCES: F O R PETITIONER: R O N A L D JAMES LaROSE, Pro se 9 0 1 Mechanic Street A p t. 4 O g d e n s b u rg , New York 13669 F O R RESPONDENTS: HON. ANDREW M. CUOMO O ffic e of the Attorney General State of New York D e p a rtm e n t of Law T h e Capitol A lb a n y , New York 12224 D A V ID E. PEEBLES U .S . MAGISTRATE JUDGE R E P O R T AND RECOMMENDATION F a c e d with a state court indictment accusing him of six felony offenses, A L Y S O N J. GILL, ESQ. A s s is ta n t Attorney General

the most serious of which exposed him to a determinate sentence of up to tw e n ty -fiv e years in prison, petitioner Ronald James LaRose opted to forego a suppression hearing to seek preclusion of evidence recovered during a stop o f a vehicle in which he was traveling and to enter a plea of guilty to a class C fe lo n y , with a promise of determinate prison sentence of three and one-half y e a rs , and to waive his right of appeal in connection with the entry of that p le a . Dissatisfied with his bargain, based upon the fact that his co-defendant w a s successful in securing suppression of critical evidence seized during the v e h ic le stop, after pursuing the limited state court avenues available to him to ra is e at least some of his claims, LaRose has commenced this proceeding p u rs u a n t to 28 U.S.C. § 2254 seeking this court's habeas intervention. In s u p p o rt of his petition, LaRose maintains that his conviction was the product o f Fourth Amendment violations stemming from the vehicle stop and his e n s u in g arrest, and that his assigned attorney failed to effectively represent h im in the course of the proceedings leading up to his plea. Having carefully reviewed the available record in the light of LaRose's p e titio n , I find that he has procedurally forfeited his right to raise Fourth A m e n d m e n t claims in this proceeding, and that in any event those claims lack m e rit. Turning to the petitioner's second argument, I find no basis to

2

conclude that LaRose did not receive effective assistance of counsel. Accordingly, I recommend that his petition be dismissed. I. BACKGROUND O n June 15, 2004, a St. Lawrence County Grand Jury returned a seven c o u n t indictment against LaRose and a co-defendant; petitioner was named in six of those counts, and was accused of first degree burglary, a class B a rm e d felony; criminal possession of a weapon in the second degree, a class C armed felony; two counts of criminal possession of stolen property in the fo u rth degree, a class E felony; first degree robbery, a class B armed felony; a n d conspiracy in the fourth degree, a class E felony. The indictment arose o u t of events occurring at a dwelling located in the Town of Russell, within St. L a w re n c e County, on May 19, 2004. During the course of the ensuing criminal prosecution, LaRose was re p re s e n te d by an assigned public defender. See Section 440.10 Decision, d a te d June 13, 2005 ("Section 440.10 Dec.") at p. 2 (unnumbered). Petitioner's counsel participated in a pretrial disclosure conference regarding th e matter, and reserved petitioner's right to a suppression hearing to c h a lle n g e the stop of the petitioner's vehicle and the ensuing search. Id. A s tip u la tio n to that effect was prepared and executed, and was approved by

3

the court on July 12, 2004. Id. On August 9, 2004, accompanied by his public defender, LaRose e n te re d a plea of guilty in St. Lawrence County Court to a single count of s e c o n d degree burglary, a class C felony, in full satisfaction of all charges a g a in s t him, with a promise from the court to impose a determinate sentence o f three and one-half years of incarceration, to be followed by a five-year p e rio d of post-release supervision. During the course of the plea allocution, L a R o s e admitted that he was in the dwelling of another individual on May 19, 2 0 0 4 , that he had no right to enter that home, and that he did so with the in te n tio n of committing a theft. As part of the agreement leading to the entry o f petitioner's plea, LaRose waived his right to appeal any issue with the e x c e p tio n of the unconstitutionality of the proceedings or illegality of the s e n te n c e imposed. No appeal of the resulting judgment of conviction was file d by or on behalf of LaRose. O n May 3, 2005, without legal representation, petitioner filed an a p p lic a tio n pursuant to N.Y. Criminal Procedure Law ("CPL") § 440.10 s e e k in g an order vacating his judgment of conviction. In that application, L a R o s e argued that he received ineffective assistance of counsel, based u p o n his attorney's lack of understanding of the legal principles associated

4

with vehicle stops. See LaRose Aff. In Support of CPL Section 440.10 Motion ¶ 3. Petitioner's motion appears to have been prompted by the trial court's d e c is io n to grant his co-defendant's suppression motion, apparently resulting in dismissal of all charges against that individual. Id. ¶ 4. Noting that p e titio n e r had entered a knowing and voluntary guilty plea, and had not up u n til then sought to withdraw his plea on the ground that it was involuntary, A c tin g St. Lawrence County Court Judge Kathleen M. Rogers issued a d e c is io n dated, June 13, 2005, denying petitioner's motion to vacate his c o n v ic tio n . Petitioner's application for permission to appeal that d e te rm in a tio n was denied by the New York State Supreme Court Appellate D iv is io n , Third Department, on August 26, 2005, and his subsequent request fo r a rehearing in connection with that determination was denied by that court o n March 20, 2006. Having served the full length of his determinate sentence, petitioner w a s released from prison in or about November of 2007.1 See Dkt. No. 14; s e e also http://nysdocslookup.docs.state.ny.us/GCA00POO/Wiq2/Winq120 . II. P R O C E D U R A L HISTORY

Although petitioner has been released from prison, he is still subject to certain restrictions, including a lengthy period of post-release supervision, as a result of his conviction. Accordingly, LaRose's release from prison does not render his petition moot. See Jago v. Van Curen, 454 U.S. 14, 21 n.3, 102 S. Ct. 31, 36 n.3 (1981). 5

1

Petitioner commenced this proceeding on April 14, 2006. Dkt. No. 1. In h is petition, LaRose asserts four separate grounds upon which habeas relief is sought; three of those grounds raise Fourth Amendment claims related to th e initial stop of his vehicle by border patrol agents (ground one); the search o f his vehicle (ground two); and his arrest, allegedly without probable cause (g ro u n d three), while the fourth asserts denial of effective assistance of c o u n s e l, as guaranteed under the Sixth Amendment. Appropriately named a s the respondent is Leo E. Payant, the superintendent of the prison facility in w h ic h LaRose was incarcerated at that time his petition was filed. Represented by the New York State Attorney General, respondent P a y a n t answered LaRose's petition on September 29, 2006, Dkt. Nos. 8, 9, a n d additionally supplied the court with records related to the relevant state c o u rt proceedings. Petitioner has since responded by filing a reply m e m o ra n d u m , or "traverse", on October 17, 2006 in further support of his p e titio n . Dkt. No. 11. This matter, which is now ripe for determination, has been referred to m e for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 6 3 6 (b )(1 )(B ) and Northern District of New York Local Rule 72.3(c). See also F e d . R. Civ. P. 72(b).

6

III.

D IS C U S S IO N A. E x h a u s tio n /P ro c e d u ra l Default

A s a preliminary, threshold matter, respondent argues that because the p e titio n e r's Fourth Amendment claims were never presented to the state c o u rts prior to the commencement of this proceeding, they remain u n e x h a u s te d . Respondent maintains that in light of this shortcoming and the fa c t that LaRose raises both exhausted and unexhausted claims his petition is mixed, asserting that the court is therefore empowered to take one of s e v e ra l courses of action, including to dismiss the unexhausted claim, stay c o n s id e ra tio n of the claim which has not yet properly been presented in order to afford petitioner an opportunity to return to the state courts to satisfy the e x h a u s tio n requirement, or to deny the unexhausted claims on the merits as p la in ly lacking in merit. Prior to seeking federal habeas relief, a petitioner must exhaust a v a ila b le state remedies, or establish either an absence of available state re m e d ie s or that such remedies cannot adequately protect his or her rights. Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001) (quoting 28 U.S.C. § 2 2 5 4 (b )(1 )); Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 5 1 5 U.S. 1118, 115 S.Ct. 2269 (1995). The exhaustion doctrine recognizes

7

"respect for our dual judicial system and concern for harmonious relations b e tw e e n the two adjudicatory institutions." Daye v. Attorney Gen. of New Y o rk , 696 F.2d 186, 191 (2d Cir. 1982). "Comity concerns lie at the core of th e exhaustion requirement." Galdamez v. Keane, 394 F.3d 68, 72 (2d Cir. 2 0 0 5 ). Though both federal and state courts are charged with securing a s ta te criminal defendant's federal rights, the state courts must initially be g iv e n the opportunity to consider and correct any violations of federal law. Id. "The chief purposes of the exhaustion doctrine would be frustrated if the fe d e ra l habeas court were to rule on a claim whose fundamental legal basis w a s substantially different from that asserted in state court." Daye, 696 F.2d a t 192 (footnote omitted). This exhaustion requirement is satisfied if the federal claim has been "`fa irly presented'" to the state courts. See Dorsey v. Kelly, 112 F.3d 50, 52 (2 d Cir. 1997) (quoting Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 5 1 2 (1971)). A claim has been "fairly presented" if the state courts are a p p ris e d of "both the factual and the legal premises of the claim [the p e titio n e r] asserts in federal court." Daye, 696 F.2d at 191. Thus, "the nature o r presentation of the claim must have been likely to alert the court to the c la im 's federal nature." Id. at 192.

8

When a claim has never been presented to a state court, a federal court m a y find that there is an absence of available state corrective process under § 2254(b) "if it is clear that the unexhausted claim is procedurally barred by s ta te law and, as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1 9 9 7 )); Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000) (federal court may a d d re s s merits of a habeas petition containing unexhausted claims where th e re is no further state proceeding for petitioner to pursue or where further p u rs u it would be futile), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001). As such, I must determine whether it would be futile for petitioner to present th e newly-asserted theory regarding the indictment on which he was tried to th e state courts. H a v in g failed to file an appeal to the Third Department within thirty days o f his conviction in order to advance his Fourth Amendment claims, he is now p re c lu d e d from doing so. See N.Y. Civ. Practice Law and Rules § 5 5 1 3 (a )(M c K in n e y 1995); Sanchez v. New York State Tax Comm'n, 112 A .D .2 d 487, 490 N.Y.S.2d 901 (3d Dep't 1985). Moreover, since "New York d o e s not otherwise permit collateral attacks on a conviction when the d e fe n d a n t has unjustifiably failed to raise the issue on direct appeal,"

9

Aparicio, 269 F.3d at 91(citing CPL § 440.10(2)(c)), petitioner cannot now p ro p e rly raise his Fourth Amendment claim, which is based upon the record, in an Article 440 motion. Id. ; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1 9 9 4 ), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995). That claim is th e re fo re "deemed exhausted" for purposes of petitioner's habeas a p p lic a tio n . Spence v. Superintendent, Great Meadow Corr. Fac., 219 F.3d 1 6 2 , 170 (2d Cir. 2000); Senor v. Greiner, No. 00-CV-5673, 2002 WL 3 1 1 0 2 6 1 2 , at *10 (E.D.N.Y. Sept. 18, 2002). Although petitioner's Fourth Amendment claim is "deemed exhausted," it is also procedurally defaulted. See Aparicio, 269 F.3d at 90, 96 n. 9. Accordingly, this court may not engage in habeas review of the claim unless th e petitioner demonstrates either 1) both good cause for and actual p re ju d ic e resulting from his procedural default, or 2) that the denial of habeas re lie f would leave unremedied a fundamental miscarriage of justice. Fama v. C o m m 'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Garcia v. Lewis, 1 8 8 F.3d 71, 76-77 (2d Cir. 1999); Levine v. Comm'r of Corr. Servs., 44 F.3d 1 2 1 , 126 (2d Cir. 1995). Under this second exception, which is both exacting a n d intended for the "extraordinary case, where a constitutional violation has p ro b a b ly resulted in the conviction of one who is actually innocent[,]" Murray

10

v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986); see also House v . Bell, 547 U.S. 518, 535, 126 S. Ct. 2064, 2076 (2006); Lebron v. Mann, 40 F .3 d 561, 564 (2d Cir. 1994), "the principles of comity and finality that inform th e concepts of cause and prejudice 'must yield to the imperative of c o rre c tin g a fundamentally unjust incarceration.'" Murray, 477 U.S. at 495, 1 0 6 S. Ct. at 2649 (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 1 5 5 8 , 1576 (1982)). T o establish "cause" sufficient to excuse a procedural default, a p e titio n e r must show that some objective external factor impeded his or her a b ility to comply with the relevant procedural rule. Coleman v. Thompson, 5 0 1 U.S. 722, 753, 111 S. Ct. 2546, 2566-67 (1991) (citing Murray, 477 U.S. a t 488, 106 S. Ct. at 2645); see Restrepo v. Kelly, 178 F.3d 634, 639 (2d Cir. 1 9 9 9 ) (citing, inter alia, Coleman). Examples of such external mitigating c irc u m s ta n c e s can include "interference by officials," ineffective assistance of c o u n s e l, or that "the factual or legal basis for a claim was not reasonably a v a ila b le " at trial or on direct appeal.2 Murray, 477 U.S. at 488, 106 S. Ct. at

It should be noted, however, that "[a]ttorney ignorance or inadvertence is not `cause' because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must `bear the risk of attorney error.'" Coleman, 501 U.S. at 753, 111 S. Ct. at 2566-67 (quoting Murray, 477 U.S. at 488, 106 S. Ct. at 2645). 11

2

2645. When a petitioner has failed to establish adequate cause for his or her p ro c e d u ra l default, the court need not go on to also examine the issue of p re ju d ic e , since federal habeas relief is generally unavailable as to p ro c e d u ra lly defaulted claims unless both cause and prejudice are d e m o n s tra te d . Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Long v. L o rd , No. 03-CV-0461, 2006 WL 1977435, at *6 (N.D.N.Y. March 21, 2006) (M c C u rn , S.J.) (citing Stepney); Staley v. Greiner, No. 01 Civ. 6165, 2003 WL 4 7 0 5 6 8 , at *7 (S.D.N.Y. Feb. 6, 2003) (citing Stepney). In such a case, a b s e n t evidence to show the petitioner's innocence of the crime of conviction, n o basis is presented to conclude that the failure to consider the merits of the fe d e ra l claim would result in a fundamental miscarriage of justice, which has b e e n interpreted as amounting to "an unjust incarceration." Spence, 219 F .3 d at 170. P e titio n e r has offered no circumstances to justify his failure to present th e Fourth Amendment arguments now being advanced to the state courts. The bases for those claims were readily apparent at the time of conviction. Nonetheless, petitioner chose not to appeal his conviction, having waived the rig h t to appeal when entering his plea, and although proceeding pro se at the tim e , opted not to raise the argument in his CPL section 440.10 motion. I

12

therefore conclude that LaRose has failed to show cause for his procedural d e fa u lt, making it unnecessary to address the further prejudice inquiry. Turning to the failsafe actual innocence exception, I find no basis upon w h ic h petitioner can contend that he is actually innocent of the offense c h a rg e d , and that his incarceration and continued parole supervision is u n ju s t. After deciding to take advantage of the plea offer from the prosecutor a n d court, significantly reducing both the number of crimes charged and his e x p o s u re to incarceration, petitioner appeared in open court and, under oath, a d m itte d his guilt of the offense charged.3 Although it is true that charges a g a in s t petitioner's co-defendant were dismissed, that came as a result of a s u p p re s s io n decision in which the court merely found that certain evidence s e iz e d and to be used in connection with criminal prosecution could not be o ffe re d at trial; the decision thus addressed evidentiary issues, and did not
3

The statutory provision defining the crime of conviction provides, in relevant

part, that [a] person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with an intent to commit a crime therein, and when: *** 2. The building is a dwelling. Burglary in the second degree is a Class C Felony N.Y. Penal Law § 140.25. 13

speak to whether the two defendants named in the indictment had actually c o m m itte d the offenses charged. Under these circumstances petitioner has forfeited his right to assert F o u rth Amendment violations in support of his quest for habeas relief. I th e re fo re recommend dismissal of plaintiff's second, third and fourth grounds o n this procedural basis.4 B. S ta n d a rd of Review

B e fo re addressing petitioner's properly exhausted claim, it is helpful to re c o u n t the standard against which the claim is to be measured, and to a p p re c ia te its deferential attributes. E n a c tm e n t of the Antiterrorism and Effective Death Penalty Act of 1996 ("A E D P A "), Pub. L. No. 104-132, 110 Stat. 1214 (1996), brought about s ig n ific a n t new limitations on the power of a federal court to grant habeas re lie f to a state court prisoner under 28 U.S.C. § 2254. Under the AEDPA, "a

Notwithstanding respondent's argument to the contrary, this finding does not lead to the conclusion that LaRose's petition is mixed. A habeas petition which only contains claims that have either been previously asserted by the petitioner in the state courts or which may be deemed exhausted by a federal court is not a "mixed" petition subject to dismissal under Rose v. Lundy, 455 509, 102 S. Ct. 1198 (1982). E.g. Chisolm v. Costello, No. 94CIV.3201, 1998 WL 167332, at *4 (S.D.N.Y. Apr. 8, 1998) ("[w]hile Rose would traditionally require the dismissal of a mixed petition due to the failure to exhaust some of the claims, here, the unexhausted claims are deemed exhausted.... The petition is thus no longer mixed in the Rose sense of the term"). See Lutes v. Ricks, 02-CV-1043, 2005 WL 2180467, at *5 (N.D.N.Y. Sept 9, 2005) (McAvoy, S.J.). 14

4

determination of a factual issue made by a State court shall be presumed to b e correct [and t]he applicant shall have the burden of rebutting the p re s u m p tio n of correctness by clear and convincing evidence." 28 U.S.C. § 2 2 5 4 (e )(1 ); see also Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001) (q u o tin g § 2254(e)(1)) (internal quotes omitted). Significantly, a federal court m a y not grant habeas relief to a state prisoner on a claim th a t was adjudicated on the merits in State court p ro c e e d in g s unless the adjudication of the claim ­ 1) resulted in a decision that was contrary to , or involved an unreasonable a p p lic a tio n of, clearly established Federal la w , as determined by the Supreme Court o f the United States; or 2 ) resulted in a decision that was based on a n unreasonable determination of the facts in light of the evidence presented in the S ta te court proceeding. 2 8 U.S.C. § 2254(d); see also Thibodeau v. Portuondo, 486 F.3d 61, 65 (2d C ir. 2007); Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001), cert. denied, 534 U .S . 886, 122 S. Ct. 197 (2001); Boyette, 246 F.3d at 88. When applying th is test, the Second Circuit has noted that [u]nder AEDPA, we ask three questions to determine w h e th e r a federal court may grant habeas relief: (1) W a s the principle of Supreme Court case law relied u p o n in the habeas petition "clearly established"
15

when the state court ruled? (2) If so, was the state c o u rt's decision "contrary to" that established S u p re m e Court precedent? (3) If not, did the state c o u rt's decision constitute an "unreasonable a p p lic a tio n " of that principle? W illia m s v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams v. Taylor, 5 2 9 U.S. 362, 412-13, 120 S. Ct. 1495, 1523 (2000) (O'Connor, J.) and F ra n c is S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000) (citing Williams)). Because the AEDPA's restriction on federal habeas power was p re m is e d in no small part upon the duty of state courts to uphold the C o n s titu tio n and faithfully apply federal laws, the AEDPA's exacting review s ta n d a rd s apply only to federal claims which have been actually adjudicated o n the merits in the state court. Washington v. Schriver, 255 F.3d 45, 52-55 (2 d Cir. 2001). Specifically, as the Second Circuit explained in Sellan v. K u h lm a n , "[f]or the purposes of AEDPA deference, a state court `a d ju d ic a te [s ]' a state prisoner's federal claim on the merits when it (1) d is p o s e s of the claim `on the merits,' and (2) reduces its disposition to ju d g m e n t." 261 F.3d 303, 312 (2d Cir. 2001); see Jimenez v. Walker, 458 F .3 d 130, 140 (2d Cir. 2006) (citing Sellan), cert. denied sub nom. Jimenez v . Graham, 549 U.S. 1133, 127 S. Ct. 976 (2007). Significantly, the Second C irc u it further held that when a state court adjudicates a claim on the merits,

16

"a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2 2 5 4 (d )(1 ) to the state court's decision on the federal claim ­ even if the s ta te court does not explicitly refer to either the federal claim or to relevant fe d e ra l case law." Sellan, 261 F.3d at 312 (emphasis added).5,6 W h e n a state court's decision is found to be decided "on the merits", th a t decision is "contrary to" established Supreme Court precedent if it a p p lie s a rule that contradicts Supreme Court precedent, or decides a case d iffe re n tly than the Supreme Court on a set of materially indistinguishable fa c ts . Williams, 529 U.S. at 405-06, 120 S. Ct. at 1519-20. Moreover, a fe d e ra l court engaged in habeas review must also determine not whether the s ta te court's determination was merely incorrect or erroneous, but instead w h e th e r it was "objectively unreasonable". Sellan, 261 F.3d at 315 (quoting

In the past, when wrestling with interpretation and application of the AEDPA's deference standard the Second Circuit had suggested, although leaving open the question, that deference under section 2254(d) is not mandated if a state court decides a case without citing to federal law or otherwise making reference to a federal constitutional claim in a manner adequate to justify deference under the AEDPA, in which case preAEDPA standards would apply. Washington, 255 F.3d at 52-55; see also Noble, 246 F.3d at 98. That court clarified in Sellan, however, that the question of whether or not a state court makes specific reference to a constitutional principle is not controlling. In his opinion in Sellan, Chief Judge Walker acknowledged that enlightenment in state court decisions as to the manner of disposition of federal claims presented would greatly enhance a federal court's ability, on petition for habeas review, to apply the AEDPA deference standard. Sellan, 261 F.3d at 312. He noted, however, that a state court's failure to provide such useful guidance does not obviate a federal court's duty to make the analysis and pay appropriate deference if the federal claim was adjudicated on the merits, albeit tacitly so. Id. 17
6

5

Williams, 529 U.S. at 409, 120 S. Ct. at 1521 (O'Connor, J.)). The Second C irc u it has noted that this inquiry admits of "[s]ome increment of in c o rre c tn e s s beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111. C. M e rits Of Petitioner's Fourth Amendment Claims

A lth o u g h both unexhausted and procedurally forfeited, I have n o n e th e le s s chosen to address the merits of petitioner Fourth Amendment c la im s .7 Those claims must be considered against the backdrop of the welle s ta b lis h e d body of habeas jurisprudence to the effect that where a state

As respondent argues, LaRose's Fourth Amendment claims also appear to be barred by virtue of the intervening guilty plea. Whitehurst v. Senkowski, 485 F. Supp.2d 105, 117 (N.D.N.Y. 2007) (McCurn. S.J.), appeal dismissed, Whitehurst v. Senkowski, No. 07-2334-pr (2d Cir. Aug. 20, 2007). In Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602 (1973), the Supreme Court noted that: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Tollett, 411 U.S. at 267, 93 S.Ct. at 1608. Thus, a guilty plea "foreclose[s] direct inquiry into the merits of claimed antecedent constitutional violations." Tollett, 411 U.S. at 266, 93 S.Ct. at 1607; see also Blackledge v. Perry, 417 U.S. 21, 29-30, 94 S.Ct. 2098, 2103 (1974) ("a person complaining of ... antecedent constitutional violations ... is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not within the range of competence demanded of attorneys in criminal cases") (internal quotations and citations omitted).

7

18

has provided a defendant with the opportunity to fully and fairly litigate a F o u rth Amendment claim, such a constitutional claim may not be considered b y a federal court on petition for habeas relief. See Stone v. Powell, 428 U .S . 465, 481-82, 96 S. Ct. 3037, 3046 (1976); Hernandez v. Filion, No. 05 C iv . 4046, 2005 WL 3164063, at *5-6 (S.D.N.Y. Nov. 29, 2005); see also C a p p e lla n v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Campbell v. Greene, 440 F . Supp. 2d 125, 138 (N.D.N.Y. 2006) (McCurn, S. J.). A federal court may o n ly review a claim based upon the Fourth Amendment "(a) if the state has p ro v id e d no corrective procedures at all to redress the alleged Fourth A m e n d m e n t violations; or (b) if the state has provided a corrective m e c h a n is m , but the defendant was precluded from using that mechanism b e c a u s e of an unconscionable breakdown in the underlying process." C a p e lla n , 975 F.2d at 70 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d C ir. 1977)(en banc)); Campbell, 440 F. Supp. 2d at 138 (citing Capellan). By statute, New York provides a procedure for adjudication of claimed F o u rth Amendment violations. See New York CPL § 710.10 et seq. "[F]ederal courts have approved New York's procedure for litigating the F o u rth Amendment claims . . . as being facially adequate." Cappellan, 975 F .2 d at 70 n.1; see also Jackson v. Lacy, 74 F. Supp. 2d 173, 176 (N.D.N.Y.

19

1999) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate J u d g e Ralph W. Smith, Jr.). "[O]nce it is established that a petitioner has h a d an opportunity to litigate his or her Fourth Amendment claim (whether or n o t he or she took advantage of the state's procedure), the court's denial of th e claim is a conclusive determination that the claim will never present a v a lid basis for federal habeas relief." Graham v. Costello, 299 F.3d 129, 134 (2 d Cir. 2002). It should be noted, moreover, that "mere disagreement with th e outcome of a state court ruling is not the equivalent of an u n c o n s c io n a b le breakdown in the state's corrective process." Capellan, 975 F .2 d at 72. In this instance, petitioner's right to request a suppression hearing was s p e c ific a lly reserved to him by the court. He chose, however, not to avail h im s e lf of that avenue, but instead to enter a plea of guilty. The availability o f that remedy and his choice not to pursue it divests him of the right to now ra is e a Fourth Amendment claim in this habeas proceeding. D. M e rits of Ineffective Assistance of Counsel Claim

T h e centerpiece of LaRose's petition is his contention that the public d e fe n d e r assigned to represent him failed to do so adequately. Although n e ith e r LaRose's petition nor his reply memorandum elaborate on the

20

deficiencies which he now claims in connection that representation, it a p p e a rs that his dissatisfaction stems from counsel's failure to advise him to s e e k suppression of the evidence against him in lieu of entering a guilty p le a . 1. Clearly Established Supreme Court Precedent

U n d e r the well-established standard governing such claims, in order to prevail on an ineffective assistance of counsel claim a petitioner must s h o w both that 1) his or her counsel's performance was deficient, in that it fa ile d to conform to an objective, reasonableness threshold minimum le v e l, and 2) that deficiency caused actual prejudice to the defense, in that th e petitioner was effectively deprived of a fair trial, the results of which w e re reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2 0 5 2 , 2064 (1984); Murden v. Artuz, 497 F.3d 178, 198 (2d Cir. Aug. 10, 2 0 0 7 ); Greiner v. Wells, 417 F.3d 305, 319 (2d Cir. 2005), c e rt. denied sub. nom. Wells v. Ercote, 546 U.S. 1184, 126 S. Ct. 1363 (2 0 0 6 ). To be constitutionally deficient, the attorney's conduct must fall "o u ts id e the wide range of professionally competent assistance." Strickland, 4 6 6 U.S. at 690, 104 S. Ct. at 2066; Greiner, 417 F.3d at 319 (citing S tric k la n d ). An attorney's performance is judged against this standard in
21

light of the totality of the circumstances and from the perspective of counsel a t the time of trial, with every effort being made to "eliminate the distorting e ffe c ts of hindsight[.]" Strickland, 466 U.S. at 689,104 S. Ct. at 2065; G re in e r, 417 F.3d at 619 (citing Strickland). W h e n measuring an attorney's performance against this standard, a c o u rt will generally indulge in a presumption that constitutionally adequate a s s is ta n c e has been rendered, and significant decisions have been made th ro u g h the exercise of sound professional judgment to which "a heavy m e a s u re of deference" is afforded. Strickland, 466 U.S. at 691, 104 S. Ct. a t 2066; Greiner, 417 F.3d at 319 (citing Strickland). In a case such as th is , a petitioner must establish that his or her attorney omitted significant a n d obvious issues while pursuing issues that were clearly and significantly w e a k e r; it is not enough to show only that counsel omitted a nonfrivolous a rg u m e n t, as an attorney has no duty to advance every such argument. J o n e s v. Barnes, 463 U.S. 745,754, 103 S. Ct. 3308, 3314 (1983); Mayo v. H e n d e rs o n , 13 F.3d 528, 533 (2d Cir. 1994) (citing Jones), cert. denied sub n o m . Henderson v. Mayo, 513 U.S. 820, 115 S. Ct. 81 (1994).

22

Addressing the second prong of the Strickland test, courts have g e n e ra lly held that prejudice is established by showing that there is a "re a s o n a b le probability" that but for the deficiency "the result of the p ro c e e d in g would have been different." Strickland, 466 U.S. at 694, 104 S . Ct. at 2068; Henry v. Poole, 409 F.3d 48, 63-64 (2d Cir. 2005), cert. d e n ie d . sub. nom. Poole v. Henry, 547 U.S. 1040, 126 S.Ct. 1622 (2006); R e e d v. Smith, No. 05-CV-3969, 2006 WL 929376, at *6 (E.D.N.Y. Apr. 11, 2 0 0 6 ). 2. C o n tra ry To Unreasonable Application of Clearly E s ta b lis h e d Supreme Court Precedent

In its decision denying LaRose's section 440.10 application, the trial c o u rt did not clearly articulate whether petitioner's ineffective assistance a rg u m e n t was rejected on the merits, or instead on the basis of his in te rv e n in g , voluntary guilty plea. Nonetheless, it appears that in ruling upon p e titio n e r's 440.10 application, the trial court concluded he had received a d e q u a te , constitutionally sufficient representation.8

In making that determination the trial court in all likelihood applied the New York standard for effective representation, including under such cases as People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893 (1981), one of several cases relied upon by the 23

8

In this instance petitioner's ineffective assistance of counsel argument b o ils down to whether he was properly counseled when deciding not to risk re q u e s tin g a suppression hearing, despite having reserved the right to do so, a n d a potential prosecution on all counts contained within the indictment as a g a in s t the plea bargain offered, resulting in significant reduction of his e x p o s u re to jail time. Little is disclosed in either LaRose's petition or his s e c tio n 440.10 application as to the advice received from his counsel, or e v e n whether the plea was entered despite counsel's advice that the Fourth A m e n d m e n t argument be pursued. It should also be noted that this is not a s itu a tio n where the trial court suppression decision was a foregone c o n c lu s io n . Indeed, as the respondent has effectively argued, the issue

petitioner in this matter. The interplay between the well-accepted standard for judging an attorney's performance under the Sixth Amendment and the prevailing test under New York law, particularly with respect to the prejudice prong of the controlling analysis, is an issue which has received increasing attention, with recent federal decisions reflecting some degree of tension between the two points of view. See, e.g., Henry v. Poole, 409 F.3d 48. Prior to rendering its decision in Henry, the Second Circuit had previously held that the "meaningful representation" test applied by the New York courts is not "contrary to" the governing federal standards, for purposes of the AEDPA, even though the prejudice prong of its analysis is significantly less reaching than under its federal counterpart. See, e.g., Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001); see also Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001) and Eze v. Senkowski, 321 F.3d 110, 122-24 (2d Cir. 2003). Whether that viewpoint will stand the test of time, particularly in light of the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), is subject to some doubt. See Henry, 409 F.3d at 68-72. 24

presents a close call, and a persuasive argument could be made that the tria l court erred in concluding that the actions of law enforcement stopping p e titio n e r's vehicle, detaining its occupants, and requesting and securing c o n s e n t to search the vehicle, ran afoul of the respondent's Fourth A m e n d m e n t rights, especially considering that the stop occurred only one or tw o miles from the border. See, e.g., United States v. Sugrim, 732 F.2d 25 (2 d Cir. 1984) (acknowledging that a traveler may be detained or searched a t the border or the functional equivalent of the border without probable c a u s e ); see also United States v. Maigar, 568 F. Supp.2d 245, 247-248 (N .D .N .Y . 2008)("[w]hatever the permissible scope of the intrusiveness of a ro u tin e boarder search might be, searches of this kind may in certain c irc u m s ta n c e s take place not only at the border itself, but at its functional e q u iv a le n ts .")(q u o tin g Almeida-Sanchez v. United States, 413 U.S. 266, 272, 9 3 S.Ct. 2525 (1973) and collecting cases). U n d e r these circumstances petitioner has failed to sustain his burden o f showing that his counsel's action fell outside of the range of reasonable c o m p e te n t representation.

25

IV.

S U M M A R Y AND RECOMMENDATION W ith the benefit of twenty-twenty hindsight, petitioner asserts that his

d e c is io n to enter a plea of guilty to a single class C felony, in full satisfaction o f an indictment charging him with two class B felonies, one class C, and th re e class E felonies, rather than pursue efforts to suppress evidence s e iz e d , allegedly in violation of his rights under the Fourth Amendment, was th e product of ineffective and constitutionally deficient representation by his a s s ig n e d attorney. That contention, however, finds no support in the record, a n d petitioner has therefore failed to sustain his burden of establishing that h e received ineffective assistance of counsel. Petitioner also seeks to raise three Fourth Amendment arguments in th is proceeding. Those claims, however, are both unexhausted and p ro c e d u ra lly forfeited, and in any event lack merit given that under New York la w he was afforded the opportunity to raise the Fourth Amendment c o n c e rn s in that forum. Based upon the foregoing, it is hereby RECOMMENDED that the petition in this matter be DENIED and

26

DISMISSED in all regards; and it is further RECOMMENDED, based upon my finding that LaRose has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U .S .C . § 2253(c)(2), that a certificate of appealability not issue with respect to any of the claims set forth in his position. NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge w ritte n objections to the foregoing report. Such objections shall be filed with th e Clerk of the Court within TEN days of service of this report. FAILURE T O SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE R E V IE W . 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. R a c e tte , 984 F.2d 85 (2d Cir. 1993). It is hereby ORDERED that the clerk of the court serve a copy of this R e p o rt and Recommendation upon the parties in accordance with this c o u rt's local rules.

D a te d :

J u n e 9, 2009 S y ra c u s e , NY
27