Nordahl v. Rivera

Filing 32

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 27 Report and Recommendations. For the reasons stated above and in the R&R, the Court finds that Petitioner's claims do not warrant habeas relief. Accordingly, it is ORDERED that the Report and Rec ommendation dated April 6, 2010 is ADOPTED in its entirety. It is further ORDERED that Petitioner's writ of habeas corpus is DISMISSED. It is further ORDERED that the Court declines to issue a certificate of appealability. It is further ORDERED that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this judgment would not be taken in good faith. The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent and to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/21/2013) The Clerks Office Has Mailed Copies. (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

BLANE D. NORDAHL,
Petitioner,

No. 08-CV-5565 (KMK) (LMS)

-v-

ORDER ADOPTING REPORT
AND RECOMMENDATION

FRANCISCO RIVERA, Superintendent, Wallkill
Correctional Facility,
Respondent.

KENNETH M. KARAS, District Judge:
Pro se Petitioner Blane Nordahl brings this petition for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254 (“the Petition”), challenging his conviction, based on a guilty plea, for one
count of burglary in the second degree and one count of burglary in the third degree. The case
was referred to Magistrate Judge Lisa Margaret Smith, pursuant to 28 U.S.C. § 636(b).
Magistrate Judge Smith has issued a thorough Report and Recommendation (“R&R”),
concluding that this Court should deny the Petition in all respects. For the reasons stated herein,
the Court adopts the conclusions of the R&R and denies Petitioner’s claims for habeas relief.
I. Background
Although the Court assumes the Parties’ general familiarity with the factual and
procedural background of this case as set forth in the R&R, the Court will briefly summarize the
facts most salient to the Petition.
A. Offense and Conviction
Between January 28 and January 30, 2002, Petitioner stole silverware, a Tiffany
compote, a vase, and other items, valued at $19,500 in total, from the Edgewater Estate of

Richard Jenrette, located in Dutchess County, New York. (Aff. of Bridget R. Stellar (“Stellar
Aff.”) Ex. 11, at 2.) Between January 27 and 29, 2002, Petitioner stole a Tiffany lamp, a Tiffany
silver water kettle, a Tiffany cream pot set, and other items, valued at between $50,000 and
$60,000 in total, from the Wilderstein National Historic Site, also in Dutchess County, New
York. (Id. at 2-3.) On July 23, 2003, Petitioner was indicted in Dutchess County for one count
of burglary in the second degree, two counts of grand larceny in the third degree, and one count
of burglary in the third degree. (Id. Ex. 2.) Petitioner, through his attorney, filed a pre-trial
Omnibus Motion to dismiss the indictment, arguing, inter alia, that the Grand Jury proceeding
was defective because the state prosecutor had presented Petitioner’s admissions regarding prior
burglaries, made pursuant to a federal proffer agreement, to the Grand Jury. (Id. Ex. 4, at 7-9.)
In this Omnibus Motion, Petitioner also sought suppression of physical evidence obtained by
New York authorities from Petitioner’s car, which federal authorities had impounded and
inventoried after Petitioner was arrested. (Id. at 14-15.) On July 29, 2004, the Honorable
Thomas J. Dolan denied these aspects of Petitioner’s Omnibus Motion. (Id. Ex. 7, at 2-5.) On
September 27, 2004, Petitioner pled guilty to one count of burglary in the second degree and one
count of burglary in the third degree. (Id. Ex. 8.) Petitioner was sentenced to a determinate term
of eight years imprisonment with five years of post-release supervision for the burglary in the
second degree, and a concurrent indeterminate term of up to four years for the burglary in the
third degree. (Id. Ex. 9, at 6-7.)
B. Direct Appeal
Petitioner appealed his conviction to the New York State Supreme Court, Appellate
Division, Second Department, arguing that his motions to dismiss and to suppress were
improperly denied. (Id. Ex. 10.) The Appellate Division unanimously affirmed Petitioner’s
2

conviction, rejecting both of Petitioner’s arguments. See People v. Nordahl, 846 N.Y.S.2d 622,
623 (App. Div. 2007). In response to Petitioner’s argument about the impropriety of using his
federal proffer statements in the Grand Jury, the Appellate Division stated:
Where defendant has by his plea admitted commission of the crime
with which he was charged, his plea renders irrelevant his
contention that the criminal proceedings preliminary to trial were
infected with impropriety and error; his conviction rests directly on
the sufficiency of his plea, not on the legal or constitutional
sufficiency of any proceedings which might have led to his
conviction after trial. Therefore, by pleading guilty, the defendant
forfeited judicial review of the alleged defect in the grand jury
proceedings.
Id. (brackets, citation, and internal quotation marks omitted). The Appellate Division also held
that Petitioner’s Fourth Amendment rights had not been violated because he had no reasonable
expectation of privacy in property that was seized and vouchered by federal authorities after his
arrest for parole violations. Id. The New York Court of Appeals summarily denied Petitioner
leave to appeal. See People v. Nordahl, 889 N.E.2d 88 (N.Y. 2008).
Petitioner has never brought a collateral attack against his conviction pursuant to N.Y.
C.P.L.R. § 440.10. (Pet. xviii.)
C. Habeas Petition and Procedural Background
Petitioner, proceeding pro se, filed the instant Petition on May 21, 2008, asserting four
grounds for habeas relief. First, he contended that his Fourteenth Amendment due process rights
were violated by the state prosecutor’s presentation of Petitioner’s prior statements, made
pursuant to a federal proffer agreement, to the Grand Jury. (Pet. viii-xi.) Second, Petitioner
claimed that the state prosecutor did not have “subject matter jurisdiction” over the documents
from the prior federal case and that the use of these documents amounted to prosecutorial
misconduct. (Id. at xii-xiii.) Third, Petitioner asserted that his Fourth Amendment rights were
3

violated by the state authorities’ search of his vehicle and their use of evidence found in his car,
which federal authorities had impounded. (Id. at xiv-xvii.) Fourth, Petitioner claimed that he
was denied effective assistance of counsel due to his trial attorney’s failure properly to inform
him of the sentences that could be imposed if he pled guilty to the charged burglaries. (Id. at
xviii-xxi.)
On October 26, 2008, Petitioner made a motion before Magistrate Judge Smith, asking
for the “deletion of GROUND TWO (2) of the Petition on ‘Prosecutorial Misconduct.’” (Pet.’s
Mot. to Delete the Claim of Prosecutorial Misconduct (“Pet.’s Mot.”) (Dkt. No. 12).) Magistrate
Judge Smith granted this request by memo endorsement on November 20, 2008. (Dkt. No. 12.)
On March 9, 2010, Magistrate Judge Smith issued an Order staying consideration of the
Petition because Petitioner’s fourth claim, for ineffective assistance of counsel, had not been
properly exhausted in state court. (Order (“March 9 Order”) (Dkt. No. 20).) Magistrate Judge
Smith did not address the claim on the merits, as permitted under 28 U.S.C. § 2254(b)(2),
because, in her view, the record on this issue was inadequate. (Id.) Petitioner then submitted a
letter, dated March 17, 2010, seeking to “withdraw claim (4) ineffective assitance [sic] of
counsel to the extent this Court does not believe it qualifies to be heard under 28 U.S.C. [§]
2254(b)(1)(B)(ii).” (Letter from Blane Nordahl to Magistrate Judge Lisa M. Smith (“March 17
Letter”) (Dkt. No. 22).) Magistrate Judge Smith granted this request on March 22, 2010. (Dkt.
No. 22.) On March 21, 2010, Petitioner filed a supplemental letter regarding the March 9 Order,
arguing that Magistrate Judge Smith should not decide the remaining claims without ordering the
production of the Grand Jury transcripts.1 (Supplemental Reply to Letter Reply of March 17,

1

Petitioner had previously requested production of the Grand Jury transcripts (Dkt. No.
13), and Magistrate Judge Smith denied this motion without prejudice, stating that most claims
4

2010 (Dkt. No. 26).) Petitioner also argued that, notwithstanding his request to withdraw the
second claim for habeas relief, Magistrate Judge Smith should still consider this claim because
jurisdictional issues can never be waived. (Id. at 2-3) Petitioner alleged that he meant to
withdraw the claim only “to the extent that [he] used ‘prosecutorial misconduct’ a legal term not
exhausted.” (Id. at 2-3.)
On March 24, 2010, Petitioner filed an “Objection to Magistrate’s Order,” addressed
directly to this Court.2 (Objection to Magistrate’s Order (Dkt. No. 24).) In the letter, Petitioner
appears to object to Magistrate Judge Smith’s March 9 Order, which stayed the proceedings, and
to inform the Court that Petitioner had replied to the March 9 Order by seeking to withdraw his
claim of ineffective assistance to the “‘extent’ that the Magistrate viewed this to be a claim
raised which had not been exhausted.” (Id.) Petitioner argued that he did not mean for his
ineffective assistance claim to be “a claim ‘per se,’” because he did not intend to create a mixed
petition, and because delay by the federal courts in addressing his claim created circumstances
that would make exhaustion in state courts ineffective. (Id.) In other words, as Magistrate Judge
Smith explains in her R&R, Petitioner argued that exhaustion of his ineffective assistance claim
in state court is futile because of the amount of time that had passed since he filed his Petition in
federal court. (R&R 3; Reply and Objections to the Magistrate’s R&R (“Obj.”) 8 (Apr. 19,
2010) (Dkt. No. 28).) Petitioner also filed a “Supplemental Submission” on March 24, 2010,
noting that he had filed a letter with Magistrate Judge Smith regarding both his ineffective
assistant of counsel claim and his request for production of the Grand Jury transcripts.

of defects in Grand Jury proceedings are waived by the entry of a guilty plea, but that this Court
would obtain the records if necessary, (id.).
2

This letter is dated March 20, 2010, but it was filed on March 24, 2010.
5

(Supplemental Submission Concerning District Ct. Order (Dkt. No. 25 ).)
Magistrate Judge Smith concluded that Petitioner’s claims to habeas relief were without
merit. She recommended that the Petition should be dismissed, that a certificate of probable
cause should not issue, and that the Court should certify that an appeal would not be taken in
good faith. (R&R 17-18.) Petitioner filed timely objections to the R&R. (Obj.)
II. Discussion
A. Standards of Review
1. Review of a Magistrate Judge’s Report and Recommendation
A district court reviewing a report and recommendation addressing a dispositive motion
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1); see also Donahue v. Global Home Loans & Fin., Inc.,
No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007).3 Under 28 U.S.C.
§ 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the
magistrate judge’s report and recommendation. The objections must be “specific” and “written,”
Fed. R. Civ. P. 72(b)(2), and must be made “[w]ithin 14 days after being served with a copy of
the recommended disposition,” id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days
when service is made pursuant to Federal Rule of Civil Procedure 5(b)(2)(C)-(F), see Fed. R.
Civ. P. 6(d), for a total of seventeen working days, see Fed R. Civ. P. 6(a)(1).
Where a party submits timely objections to an R&R, as Petitioner has here, the district
court reviews de novo the parts of the R&R to which the party objected. See 28 U.S.C.

3

In compliance with Lebron v. Sanders, 557 F.3d 76, 77 (2d Cir. 2009) (per curiam), the
Court has forwarded to Petitioner paper copies of those decisions cited herein which are
available only through fee-based, electronic databases.
6

§ 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court “may
adopt those portions of the [R&R] to which no specific written objection is made, as long as the
factual and legal bases supporting the findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law.” Eisenberg v. New England Motor Freight, Inc., 564 F.
Supp. 2d 224, 226 (S.D.N.Y. 2008) (internal quotation marks omitted).
2. Review of Petition for Habeas Corpus Relief
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
[a]n application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.
28 U.S.C. § 2254(d)-(d)(1). Thus, Petitioner is entitled to habeas corpus relief only if he can
show that “the state court ‘unreasonably’ applied law as established by the Supreme Court in
ruling on [his] claim, or made a decision that was ‘contrary to’ it.” Cousin v. Bennett, 511 F.3d
334, 337 (2d Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)). “While ‘the precise method for
distinguishing objectively unreasonable decisions from merely erroneous ones’ is somewhat
unclear, ‘it is well-established in [the Second] Circuit that the ‘objectively unreasonable’
standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness
beyond error in order to obtain habeas relief.’” Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir.
2007) (brackets omitted) (quoting Torres v. Berbary, 340 F.3d 63, 69 (2d Cir. 2003)). The state
court’s determination of factual issues is presumed correct, and Petitioner has “the burden of
rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1); see also Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 2006).
7

3. Review of Submissions by Pro Se Litigant
Pleadings submitted by pro se litigants are held to a lesser standard than those drafted by
practicing attorneys. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in
the formal litigation context, pro se litigants are held to a lesser pleading standard than other
parties.”). Because Petitioner is proceeding pro se, the Court construes his submissions liberally
to raise the strongest arguments that they suggest. See Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006).
B. Analysis
1. Fourteenth Amendment Due Process
Petitioner’s first claim for habeas relief is that the Appellate Division’s affirmance of his
conviction was an unreasonable application of Supreme Court precedent, because his Fourteenth
Amendment due process rights were violated by the state prosecutor’s presentation of
Petitioner’s prior statements, made pursuant to a federal proffer agreement, to the Grand Jury.
(Pet. ¶ 13(1); id. viii-xi.) Petitioner also claims that the use of these statements violated Federal
Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f), which render certain
statements made during plea negotiations inadmissable in any civil or criminal proceeding. (Pet.
viii.)4 Magistrate Judge Smith concluded that the Appellate Division’s decision that Petitioner
had “forfeited judicial review of the alleged defect in the grand jury proceedings” by pleading
guilty, Nordahl, 846 N.Y.S.2d at 623, was an independent and adequate state procedural bar to
Petitioner’s claim. (R&R 13.) Magistrate Judge Smith also found that Petitioner’s claim lacked

4

Petitioner cites Federal Rule of Criminal Procedure 11(e)(6), (Pet. viii; Obj. 4), which
was amended in 2002. Federal Rule of Criminal Procedure 11(f) now deals with the
admissibility of plea negotiations and statements, cross-referencing Federal Rule of Evidence
410.
8

merit, because, by pleading guilty, Petitioner waived any claim that the grand jury proceedings
were in error, and because any errors of state law committed by the prosecutor did not amount to
a due process violation. (R&R 14.) Petitioner objects to Magistrate Judge Smith’s conclusions,
arguing that the state court decision did not review his federal constitutional claim on the merits,
that his guilty plea did not waive objections to “constitutional or fundamental errors,” and that
Magistrate Judge Smith’s other conclusions were erroneous. (Obj. 5-6.)
Even assuming that the Appellate Division’s ruling was ambiguous as to whether it
rested on federal constitutional or state procedural grounds, and, that, accordingly, the Court
should review Petitioner’s allegations de novo, the Court concludes that Petitioner’s claim lacks
merit. See Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003) (“If a state court has not
adjudicated [a federal] claim on the merits, [courts] apply the pre-AEDPA standards, and review
de novo the state court disposition of the petitioner’s federal constitutional claims.” (internal
quotation marks omitted)); Garner v. Superintendent of Upstate Corr. Facility, No. 01-CV-0501,
2007 WL 2846907, at *25 (N.D.N.Y. Sept. 26, 2007) (noting that a district court reviews a
habeas petitioner’s federal constitutional claims de novo if the state court’s decision did not
clearly address the federal claim). “[I]t is well-settled that claims based on the sufficiency of the
evidence presented to a state Grand Jury are not cognizable under federal law and thus are not
reviewable in a habeas corpus petition.” Walker v. Brown, No. 08-CV-1254, 2009 WL 2030618,
at *7 (E.D.N.Y. July 10, 2009); see also Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989)
(“[F]ederal grand jury rights are not cognizable on direct appeal where rendered harmless by a
petit jury, [and] similar claims concerning a state grand jury proceeding are a fortiori foreclosed
in a collateral attack brought in a federal court.”). Moreover, as Magistrate Judge Smith
correctly noted, as a matter of federal law, Petitioner’s knowing and voluntary guilty plea
9

rendered “any errors in the grand jury proceeding” harmless. Jordan v. Dufrain, No. 98-CV4166, 2003 WL 1740439, at *3 (S.D.N.Y. Apr. 2, 2003); see also Tollett v. Henderson, 411 U.S.
258, 267 (1973) (“[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.”). Because Petitioner pled guilty and now seeks to challenge the sufficiency of the
evidence before the Grand Jury, Petitioner’s claim must be rejected. See Brown v. Allen, No. 08CV-5795, 2010 WL 1459189, at *4 (S.D.N.Y. Apr. 12, 2010) (“Regardless of whether there
were errors in the grand jury proceeding, there is no basis for the withdrawal of [p]etitioner’s
guilty plea because the plea itself rendered any alleged errors in his grand jury proceedings
harmless.”); Alston v. Ricks, No. 01-CV-9862, 2003 WL 42144, at *7 (S.D.N.Y. Jan. 7, 2003)
(“[A] guilty plea extinguishes the ability of a habeas petitioner to raise a claim regarding
misconduct before a grand jury.”).5
Magistrate Judge Smith also is correct that to the extent Petitioner challenges the
sufficiency of the indictment itself, he must show that any error “violated his constitutional due
process rights.” (R&R 15 (internal quotation marks omitted).) “Challenges to state indictments
will merit habeas corpus relief only in the exceptional case where the indictment fails to satisfy
the basic due process requirements: notice of the time, place, and essential elements of the
crime.” Edwards v. Mazzuca, No. 00-CV-2290, 2007 WL 2994449, at *5 (S.D.N.Y. Oct. 15,

5

The Court also agrees with Magistrate Judge Smith that because Petitioner’s guilty plea
foreclosed his challenge to the sufficiency of the evidence before the Grand Jury, production of
the Grand Jury minutes is unnecessary (R&R 5-6), and this request is also denied.
10

2007) (internal quotation marks omitted)). Here, the indictment satisfied the basic due process
requirements by listing the dates, places, and essential elements of the charged conduct, (Steller
Aff. Ex. 2). See Swanton v. Graham, No. 07-CV-4113, 2009 WL 1406969, at *11 (E.D.N.Y.
May 19, 2009) (denying habeas claim regarding sufficiency of the indictment when “the
indictment satisfied the basic requirements of due process by informing petitioner of the time,
place and essential elements of his crime and, moreover, tracked the language of the statute
allegedly violated”); see also Carroll v. Hoke, 695 F. Supp. 1435, 1438 (E.D.N.Y.1988)
(“[C]onstitutional standards . . . ensure a defendant the opportunity to prepare a sufficient
defense by requiring that an indictment inform the accused, in general terms, of the time, place
and essential elements of the alleged crime.”).
For similar reasons, Petitioner’s reliance on People v. Hansen, 95 N.Y.2d 227 (N.Y.
2000), is misplaced. There, the Court of Appeals noted that while a guilty plea generally
precludes a defendant from raising claims based on deprivations of rights that took place earlier
in the proceedings, a guilty plea does not extinguish claims related to jurisdictional matters, such
as the sufficiency of the accusatory instrument, or to “rights of a constitutional dimension that go
to the very heart of the process,”—e.g., the constitutional speedy trial right. Id. at 230-31.
However, the Court of Appeals specified that while a defendant’s constitutional right to be
prosecuted on a “jurisdictionally valid indictment survived the guilty plea, his right to challenge”
the “fact-finding process engaged in by the grand jurors” did not. Id. at 232. Specifically, the
Court of Appeals held that the defendant could not challenge the use of hearsay evidence in the
grand jury after pleading guilty, id at 232, and that an indictment is jurisdictionally invalid “only
if it does not charge the defendant with the commission of a particular crime, by, for example,
failing to allege every material element of the crime,” id. at 231.
11

Here, just as the defendant in Hansen challenged the admissibility of particular evidence
in the grand jury rather than the jurisdictional validity of the indictment, Petitioner challenges
the use of his prior statements during the grand jury process, without showing that the indictment
was jurisdictionally invalid or that the prosecutor’s conduct was so egregious as to create a
constitutional violation going to the heart of the process. See id. at 232 (noting that “[w]hile [the
criminal defendant’s] constitutional right to be prosecuted on a jurisdictionally valid indictment
survived [his] guilty plea, his right to challenge . . . [the grand jurors’ reliance on videotaped
remarks] did not”); see also Mayes v. Donnelly, No. 03-CV-417, 2009 WL 2601106, at *9-10
(W.D.N.Y. Aug. 21, 2009) (finding that claim that a witness perjured himself when testifying
before a state grand jury was not cognizable on habeas review when the petitioner had pleaded
guilty); Smith v. Burge, No. 03-CV-8648, 2005 WL 78583, at *7-8 (S.D.N.Y. Jan. 12, 2005)
(finding that claim that state prosecutor committed misconduct by admitting false evidence
before the state grand jury was not cognizable on habeas review when the petitioner pled guilty);
cf. People v. Pelchat, 464 N.E.2d 447, 453 (N.Y. 1984) (finding that a petitioner who pleads
guilty can later challenge the grand jury proceedings if the prosecutor was aware that the only
evidence before the grand jury was false). Indeed, the trial court reviewed the Grand Jury
minutes and held that the indictment was jurisdictionally valid. (Steller Aff. Ex. 7, at 2-3 (noting
that “competent and admissible evidence before the Grand Jury provide[d] reasonable cause to
believe that [Petitioner] committed” the offenses in the indictment and that the “evidence [was]
legally sufficient to support every element of the charges contained in [the] indictment”).)
Petitioner has not challenged this finding. Accordingly, Petitioner has not shown that the
indictment was jurisdictionally invalid, and this claim is dismissed.

12

Petitioner also appears to argue that the use of his proffer statements was a violation of
non-constitutional federal law, and that this violation created a “fundamental defect” in his
conviction, (Obj. 3-4). See Reed v. Farley, 512 U.S. 339, 348 (1994) (Opinion of Ginsburg,, J.)
(“[H]abeas review is available to check violations of federal laws when the error qualifies as ‘a
fundamental defect which inherently results in a complete miscarriage of justice [or] an omission
inconsistent with the rudimentary demands of fair procedure.’” (alteration in original) (quoting
Hill v. United States, 368 U.S. 424, 428 (1962))). Specifically, Petitioner argues that the use of
these statements violated Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure
11(f), which prohibit the use of statements made during plea discussions with the prosecuting
attorney that do not result in a guilty plea. The Court agrees with Magistrate Judge Smith that
Petitioner’s invocation of these federal rules does not change the fact that claims of defects in
state grand jury proceedings present questions of state, not federal, law, which are not cognizable
on habeas review absent a showing of a due process violation. See Brown, 2010 WL 1459189, at
*4 (denying habeas claim that prosecutor misled the grand jury, because claims for “deficiencies
in state grand jury proceedings [are] not cognizable in a habeas corpus proceeding in federal
court because habeas corpus relief does not lie for errors of state law” (brackets, ellipsis,
citations and internal quotation marks omitted)); Dunn v. Sears, 561 F. Supp. 2d 444, 453
(S.D.N.Y. 2008) (noting that “federal habeas review is available only for federal constitutional
violations” and that “there is no federal constitutional right to a grand jury in a state criminal
prosecution”); see also Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990) (stating that the Fifth
Amendment right to indictment by a grand jury is not incorporated by the Due Process Clause of

13

the Fourteenth Amendment and does not apply to the states).6
Accordingly, Petitioner’s claim for habeas relief on this issue is denied.
2. Prosecutorial Misconduct and “Jurisdiction”
Petitioner’s second claim for habeas relief is that the state prosecutor had no “subject
matter jurisdiction over the ‘information and documentation’ from [the] prior federal case” and
that his actions amounted to prosecutorial misconduct. (Pet. ¶ 13(2).) Magistrate Judge Smith
found that Petitioner voluntarily withdrew this claim in his Motion, Affirmation, and
Memorandum of Law, all dated October 26, 2008. (R&R 6-7; Pet.’s Mot.; Mem. of Law in
Supp. of Mot. to Delete Claim of ‘Prosecutorial Misconduct’ from Petition (Pet.’s Mem.”) (Dkt.
No. 9).) Magistrate Judge Smith also concluded that there is no distinction between the
“prosecutorial misconduct” and “jurisdictional” claims, and that neither of these claims had been
exhausted. (R&R 7.) Petitioner objects to Magistrate Judge Smith’s conclusion that he
voluntarily withdrew this claim, arguing that he meant to withdraw only issues of “prosecutorial
misconduct” but not “jurisdictional issues” that can never be waived. (Obj. 9.)
First, the Court agrees with Magistrate Judge Smith that Petitioner voluntarily withdrew
his second claim for habeas relief, at least with respect to the prosecutorial misconduct claim,
6

Moreover, it is entirely unclear why these federal evidentiary and procedural rules
would apply to a state prosecutor presenting a state indictment to a state grand jury. Indeed,
Petitioner has not shown that the use of his prior statements in the grand jury created a complete
miscarriage of justice or an “omission inconsistent with the rudimentary demands of fair
procedure,” especially when Petitioner pled guilty. See Reed, 512 U.S. at 348 (Opinion of
Ginsburg, J.) (internal quotation marks omitted); see also Sanders v. Schriro, No. 05-CV-0572,
2009 WL 2870057, at *22 (D. Ariz. Sept. 2, 2009) (“[T]he violation of a federal statute by the
state in the course of criminal proceedings does not constitute a per se violation of the
[petitioner’s] federal constitutional right to due process of law.”); Sterling v. Tennis, No. 05-CV0143, 2006 WL 1409719, at *8-9 (E.D. Pa. May 18, 2006) (noting that a claim based on a
potential violation of an interstate compact is not a basis for habeas relief because such a
violation is not tantamount to a fundamental defect and further finding that petitioner waived the
claim in any event, by pleading guilty).
14

(Pet.’s Mem. 1 (requesting that Petitioner be allowed to delete the “issue of ‘Prosecutorial
Misconduct,’ Ground Two (2)”)), and, therefore, the Court will not consider this claim. To the
extent there is any distinction between the “prosecutorial misconduct” and “jurisdictional”
aspects of Petitioner’s claim, any remaining claim simply rehashes Petitioner’s argument that the
prosecutor’s use of Petitioner’s proffer statements constituted a constitutional violation.
Petitioner’s use of the term “subject matter jurisdiction” does not change the analysis because
Petitioner merely states that the prosecutor did not have “jurisdiction” over the documents he
used. (Pet. ¶ 13(3); Obj. 9.) As already explained, Petitioner has not presented any basis to
conclude that the state indictment was jurisdictionally invalid, and Petitioner’s use of the term
“jurisdiction” does not change this result. See Silva v. Miller, No. 04-CV-8013, 2009 WL
4060946, at *6 (S.D.N.Y. Nov. 24, 2009) (rejecting petitioner’s claim regarding the sufficiency
of the indictment when the indictment satisfied the basic requirements of due process); Edwards,
2007 WL 2994449, at *5 (rejecting petitioner’s claim regarding the sufficiency of the indictment
when the indictment apprised petitioner of the time, date, and essential elements of the crimes
charged).7 Accordingly, Petitioner’s second claim for habeas relief is denied.
3. Fourth Amendment Search and Seizure
Petitioner’s third claim for habeas relief is that the state court’s denial of his suppression
motion was contrary to or an unreasonable application of Supreme Court precedent.
Specifically, Petitioner argues that state authorities violated his Fourth Amendment rights when
they seized his property from his car, which had been impounded and inventoried by federal
7

Petitioner’s argument that the prosecutor circumvented federal law appears to be either
a claim for prosecutorial misconduct, which Petitioner has voluntarily dismissed, or yet another
argument that Petitioner’s complaints regarding errors in the Grand Jury process are cognizable
on habeas review absent a showing of a jurisdictional error or a due process violation. For the
reasons already explained, Petitioner’s claim is rejected.
15

authorities after Petitioner was arrested for parole violations. (Pet. ¶ 13(3); Obj. 1-2.)
Magistrate Judge Smith concluded that Petitioner’s Fourth Amendment claim is barred by the
doctrine emanating from the Supreme Court’s decision in Stone v. Powell, 428 U.S. 465 (1976).
Petitioner objects to this conclusion, arguing that under Lefkowitz v. Newsome, 420 U.S. 283
(1975), he may raise his Fourth Amendment claim despite his guilty plea.
As Magistrate Judge Smith correctly noted, when a habeas petitioner had “an opportunity
for full and fair litigation” of his Fourth Amendment claim in state court, “the Constitution does
not require that a state prisoner be granted federal habeas corpus relief on the ground that
evidence obtained in an unconstitutional search or seizure was introduced at his trial.” See
Stone, 428 U.S. at 482; see also Capellan v. Riley, 975 F.2d 67, 70 & n.1 (2d Cir. 1992).
“[R]eview of fourth amendment claims in habeas petitions w[ill] be undertaken in only one of
two instances: (a) if the state has provided no corrective procedures at all to redress the alleged
fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the
defendant was precluded from using that mechanism because of an unconscionable breakdown
in the underlying process.” Capellan, 975 F.2d at 70; see also Munford v. Graham, No. 09-CV7899, 2010 WL 644435, at *14-15 (S.D.N.Y. Feb. 24, 2010) (same), adopted by 2010 WL
2720395, affirmed, 467 F. App’x 18 (2d Cir. 2012).
Here, Petitioner twice had a full and fair opportunity to litigate his Fourth Amendment
claim. Petitioner filed an Omnibus Motion with the trial court to exclude the evidence he
claimed was taken in violation of his Fourth Amendment rights. (Stellar Aff. Ex. 4.) After the
trial court denied his suppression motion, (id. Ex. 7), Petitioner appealed this denial, and the
Appellate Division affirmed the trial court’s decision, see Nordahl, 846 N.Y.S.2d at 623. Thus,
because Petitioner does not even argue that the state failed to provide him a corrective procedure
16

or that there was an unconscionable breakdown in the process, his mere disagreement with the
state courts’ decisions does not allow for habeas review of his Fourth Amendment claim. See
Capellan, 975 F.2d at 72 (noting that a “mere disagreement with the outcome of a state court
ruling [on a Fourth Amendment claim] is not the equivalent of an unconscionable breakdown in
the state’s corrective process”); Church v. Corcoran, No. 07-CV-1118, 2010 WL 419950, at *10
(N.D.N.Y. Jan. 29, 2010) (noting that under Stone, a habeas petitioner’s disagreement with the
state court’s decision “is insufficient to give [a federal court] authority to review Fourth
Amendment claims”).
Petitioner’s reliance on Newsome is misplaced. In Newsome, the Supreme Court created
an exception to the general rule that a guilty plea bars a defendant from raising constitutional
claims regarding pre-trial proceedings, holding that a guilty plea does not waive habeas review
of constitutional claims if the state system allows defendants to raise such constitutional claims
on direct appeal despite a guilty plea. See 420 U.S. at 290-91. Although in Newsome, the Court
laid out this general exception in the context of a Fourth Amendment search and seizure claim,
the Court “did not consider the substantive scope of the writ” in relation to Fourth Amendment
claims. Stone, 428 U.S. at 480 n.14. Rather, the scope of habeas review for Fourth Amendment
search and seizure claims was reevaluated by the Supreme Court a year later in Stone, and was
limited to the circumstances described above. Stone, 428 U.S. at 482; see also Munford, 2010
WL 644435, at *14 (noting that Stone “permits federal habeas review of exclusionary rule
contentions only in limited circumstances”). Thus, although Newsome allows Petitioner to raise
his Fourth Amendment claim, despite his guilty plea, if the state courts permit such a claim on
direct appeal, it does not excuse his failure to show that he lacked the opportunity to fully and
fairly litigate his claim. See Corcoran, 2010 WL 419950, at *10 (finding that, pursuant to
17

Newsome the petitioner, who had pled guilty, could bring a habeas claim challenging the validity
of a search warrant, but that this claim failed under Stone when the petitioner did not allege any
unconscionable breakdown in the state process); Reiff v. Dep’t. of Probation, 474 F. Supp. 276,
278-79 (E.D.N.Y. 1979) (finding that although the habeas petitioner, who had pled guilty, could
raise his Fourth Amendment claim on direct appeal, the claim nonetheless failed under Stone
because he had a full and fair opportunity to litigate the claim before the state courts).
Accordingly, the Court agrees with Magistrate Judge Smith that Petitioner’s Fourth
Amendment claim is without merit.
4. Ineffective Assistance of Counsel
Petitioner’s fourth claim for habeas relief is that his trial counsel was ineffective because
his attorney accepted the prosecutor’s statements that Petitioner faced a sentencing range of up
to life imprisonment because of his prior convictions in New Jersey, but that Petitioner later
learned that this was not so. (Pet. xviii-xxi.) Petitioner argues that had he known the correct
sentencing exposure, the result of the plea negotiations might have been different. (Id. at xxi.)
Petitioner admits that this claim was never presented to the state courts and, therefore, that it is
not exhausted. (Id. at xviii.) After Magistrate Judge Smith stayed consideration of the Petition
to allow Petitioner to return to state court and exhaust his ineffective assistance claim (March 9
Order), Petitioner withdrew his ineffective assistance claim “to the extent” it did not “qualif[y] to
be heard under 28 U.S.C. [§] 2254(b)(1)(B)(ii),” (March 17 Letter). Magistrate Judge Smith
granted this request, and concluded in her R&R that Petitioner’s habeas claim on this matter had
been withdrawn and could not be reviewed. (R&R 17.) Magistrate Judge Smith also concluded
that Petitioner’s claim did not qualify to be heard under 28 U.S.C. § 2254(b)(1)(B)(ii) because
Petitioner had made no showing that returning to state court to pursue the claim would be futile.
18

(R&R 3-4.) Petitioner now objects to Magistrate Judge Smith’s conclusions, arguing that the
passage of time since the filing of his Petition and the futility of returning to the state court merit
consideration of his ineffective assistance claim by this Court, despite his failure to exhaust.
(Obj. 8.)
“An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted unless it appears that . . . (A) the applicant has
exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of
available State corrective process; or (ii) circumstances exist that render such process ineffective
to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1); see also Argiros v. Torres, No.
09-CV-1088, 2010 WL 1840239, at *2 (D. Conn. May 6, 2010) (“The Supreme Court has
cautioned that an exception to the exhaustion requirement is appropriate only where there is no
opportunity to obtain redress in state court or where the state corrective procedure is so clearly
deficient that any attempt to obtain relief is rendered futile.” (citing Duckworth v. Serrano, 454
U.S. 1, 3 (1981)); Ruine v. Walsh, No. 00-CV-3798, 2002 WL 1349713, at *2 (S.D.N.Y. June
19, 2002) (“Th[e] exhaustion requirement is excused only if there is no available procedure for
the petitioner to obtain review of his [or her] claim in the state courts, or if any state procedure
available would be ineffective under the circumstances.” (citation omitted)). Furthermore, a
habeas petitioner “shall not be deemed to have exhausted the remedies available in the courts of
the State . . . if he [or she] has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c).
First, it is clear that Petitioner’s ineffective assistance claim was not exhausted. (Steller
Aff. Exs. 4, 5, 7, 10, 12; Pet. xviii (stating that the ineffective assistance of counsel claim “has
not been raised before the State court”).) Second, the Court agrees with Magistrate Judge Smith
19

that Petitioner’s claim does not qualify for futility based on potential delays in the federal court’s
consideration of his habeas petition, because the exhaustion and futility doctrines are concerned
with whether the state process provides Petitioner redress. See Rose v. Lundy, 455 U.S. 509, 518
(1982) (noting that the exhaustion requirement is “principally designed to protect the state
courts’ role in the enforcement of federal law and prevent disruption of state judicial
proceedings,” and to “encourage state prisoners to seek full relief first from the state courts”);
see also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (noting that the exhaustion
requirement “reduces friction between the state and federal court systems by avoiding the
‘unseem[liness]’ of a federal district court’s overturning a state court conviction without the state
courts having had an opportunity to correct the constitutional violation in the first instance.”
(alteration in original) (quoting Darr v. Buford, 339 U.S. 200, 204 (1950)). Thus, Petitioner’s
frustration with the pace of his federal habeas petition does not excuse his failure to raise the
ineffective assistance claim with the state courts prior to filing the instant Petition. Cf. Brooks v.
Jones, 875 F.2d 30, 31-32 (2d Cir. 1989) (finding that returning to state court to pursue a coram
nobis petition would be futile when petitioner’s state-appointed attorney had failed to file a brief
in the consolidated state appeals for eight years and when the state court had failed to supervise
the process).
Petitioner’s only other argument for futility is that the prosecutor committed “atrocious
far reaching conduct” and that it would be unfair for him to be required to return to the state
court that “committed such conduct.” (Obj. 8.) This claim lacks merit because Petitioner’s
unexhausted claim is that his own trial counsel provided ineffective assistance at sentencing. In
short, Plaintiff’s unexhausted claim has nothing to do with the alleged prosecutorial misconduct
or any actions of the state court. Moreover, because Petitioner’s ineffective assistance claim
20

appears to be based on facts outside the record (such as his conversations with his own attorney
and with the state prosecutor regarding sentencing), Petitioner may be able to raise his
ineffective assistance claim in the New York courts through a N.Y. Criminal Procedure Law §
440.10 motion. See N.Y. Crim. Proc. Law § 440.10(1)(h) (“At any time after the entry of a
judgment, the court in which it was entered may, upon motion of the defendant, vacate such
judgment upon the ground that . . . [t]he judgment was obtained in violation of a right of the
defendant under the constitution of this state or of the United States . . . .”); People v. Allen, 549
N.Y.S.2d 456, 457 (App. Div. 1989) (noting that the proper procedure for a defendant to bring a
claim that his trial counsel was ineffective, based on evidence outside the record, is pursuant to
N.Y. Criminal Procedure Law § 440.10 proceeding); see also Assadourian v. Brown, No. 08CV-4732, 2009 WL 2135297, at *2-3, 7 (S.D.N.Y. July 16, 2009) (noting that the habeas
petitioner had exhausted his state remedies by bringing a § 440.10 motion to assert that his trial
counsel was ineffective, because counsel had failed correctly to assess petitioner’s felony status
and corresponding sentencing exposure); People v. Shaw, No. 9173/90, 2007 WL 2080915, at
*2-5 (N.Y. Sup. Ct. 2007) (analyzing, on the merits, defendant’s § 440.10 motion claiming a
violation of his constitutional right to effective assistance of trial counsel, which was based on
counsel’s failure to advise defendant of a plea agreement). Accordingly, Petitioner has not
shown that seeking redress in the state court would be futile, and his claim is unexhausted.
Normally, having found that Petitioner’s claim is unexhausted, that Petitioner has not
shown futility, and that Petitioner may still bring a claim in the state courts, the Court could stay
the proceedings and provide Petitioner the opportunity to return to state court and exhaust his
ineffective assistance claim. See Rhines v. Weber, 544 U.S. 269, 275-76 (2005) (noting that “it
likely would be an abuse of discretion to deny a stay . . . if the petitioner had good cause for his
21

[or her] failure to exhaust, his [or her] unexhausted claims are potentially meritorious, and there
is no indication that the petitioner engaged in intentionally dilatory litigation tactics). However,
Petitioner made clear in his March 17 Letter and in his Objections that he wished to withdraw his
ineffective assistance claim if it was deemed unexhausted. Because the Court finds that
Petitioner’s unexhausted claim does not qualify for consideration under the exceptions of 28
U.S.C. § 2254(b)(1)(B), and that Petitioner has voluntarily dismissed this unexhausted claim, the
Court need not consider it.8
C. Appeal from Denial of the Petition
Magistrate Judge Smith further recommended that the Court should not issue a certificate
of appealability, as “the petition presents no questions of substance for appellate review,” and
should certify “that an appeal from this order would not be taken in good faith.” (R&R 17-18.)
“To be appealable, a district court’s denial of a § 2254 habeas petition must be
accompanied by a certificate of appealability from either the district court or a circuit judge or
justice.” Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007) (citing 28 U.S.C. § 2253(c)).
“The standard for issuing the certificate of appealability is whether ‘jurists of reason would find
it debatable whether the petition states a valid claim.’” Id. (quoting Slack v. McDaniel, 529 U.S.
473, 478 (2000)). The Court agrees with Magistrate Judge Smith that the Petition is meritless,

8

As Magistrate Judge Smith points out, the Court cannot consider Petitioner’s ineffective
assistance claim because the record is entirely bare on this issue. (R&R 4-5.) Although the
Assistant District Attorney mentioned at Petitioner’s plea that a prior burglary conviction created
the predicate for Petitioner to be sentenced as a second felony offender, the record does not
reveal whether this conviction was an out-of-state conviction, as Petitioner contends. (Steller
Aff. Ex. 8, at 3.) At Petitioner’s sentencing, the Assistant District Attorney stated that he did not
need to review defendant’s criminal history, and the judge sentenced Petitioner without
mentioning any prior New Jersey convictions. (Id. Ex. 9, at 2, 6-7.) Moreover, there is nothing
in the record regarding the plea discussions between the Assistant District Attorney, Petitioner’s
trial attorney, and Petitioner.
22

and therefore declines to issue a certificate of appealability. The Court further certifies that an
appeal from this judgment would not be taken in good faith within the meaning of 28 U.S.C.
§ 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 448 (1962) (stating that an appellant
in a criminal case “is to be heard . . . if he makes a rational argument on the law or facts”);
Cortorreal v. United States, 486 F.3d 742, 743 (2d Cir. 2007) (per curiam) (“An appeal is
frivolous ‘where it lacks an arguable basis either in law or in fact.’” (quoting Neitzke v. Williams,
490 U.S. 319, 325 (1989))).

23

III. Conclusion
For the reasons stated above and in the R&R, the Court finds that Petitioner's claims do
not warrant habeas relief. Accordingly, it is
ORDERED that the Report and Recommendation dated April6, 2010 is ADOPTED in
its entirety. It is further
ORDERED that Petitioner's writ of habeas corpus is DISMISSED. It is further
ORDERED that the Court declines to issue a certificate of appealability. It is further
ORDERED that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal
from this judgment would not be taken in good faith.
The Clerk of the Court is respectfully directed to enter a judgment in favor of Respondent
and to close this case.
SO ORDERED.
Dated:

March ~' 2013
White Plains, New York

24

Service List
For Mailing by Clerk's Office:
Blane D. Nordahl
#05-A-0086
Walkill Correctional Facility
BoxG
Route 208
Walkill, NY 12589
Bridget Rahilly Steller, ADA
Dutchess County District Attorney's Office
236 Main Street
Poughkeepsie, New York 12601
Copy To:
Honorable Lisa Margaret Smith
United States Magistrate Judge