Fagan v. Annucci

Filing 13

DECISION AND ORDER denying and dismissing petitioner's request for a writ of habeas corpus. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.). Signed by Hon. Michael A. Telesca on 5/1/2017. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL FAGAN,
Petitioner,

No. 1:13-CV-01099 (MAT)
DECISION AND ORDER

-vsCOMMISSIONER ANTHONY ANNUCCI,
Respondent.

I.

Introduction
Michael Fagan (“petitioner”), proceeding pro se, petitions

this Court for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner is incarcerated pursuant to a judgment entered
June 23, 2008, in Monroe County Court (Geraci, J.), following a
jury trial convicting him of two counts of criminal possession of
a

controlled

substance

in

the

third

degree

(N.Y.

Penal

Law

§ 229.16(1), (12)) and one count of resisting arrest (N.Y. Penal
Law § 205.30). On June 23, 2008, petitioner was sentenced, as a
second felony drug offender, to a determinate aggregate prison term
of eight years with two years post-release supervision.
II.

Factual Background and Procedural History
The evidence at trial established that plaintiff was stopped

by patrol officers for a window tint violation. Petitioner, who did
not have a valid drivers license, was asked to step out of the
vehicle, after which a plastic bag of cocaine dropped from his left
pang leg. In the course of his arest, petitioner struck Officer
Gabriel

Person

and

ran

approximately

10

feet

before

apprehended. Petitioner was convicted as outlined above.

being

Petitioner filed a direct counseled appeal to the New York
State Supreme Court, Appellate Division, Fourth Department, in
which he argued that (1) he was seized and searched without
probable cause; (2) the trial judge erred in denying petitioner’s
request to adjourn the trial for petitioner to retain new counsel;
and (3) the sentence was unduly harsh and severe. On September 28,
2012, the

Fourth

Department unanimously

affirmed

petitioner’s

judgment of conviction. See People v. Fagan, 98 A.D.3d 1270 (4th
Dep’t

2012),

lv.

denied,

20

N.Y.3d

1061

(2013).

The

Fourth

Department rejected petitioner’s Fourth Amendment argument, finding
that police officers lawfully stopped petitioner’s vehicle for a
window tint violation, and subsequently “lawfully directed [him] to
exit

the

vehicle.”

Id.

at

1271.

The

Court

also

rejected

petitioner’s contention regarding the trial judge’s refusal to
grant his request for an adjournment for new counsel. Id. at 1272.
Specifically, the court found that although petitioner argued that
the trial judge “mistakenly believed that he was bound by the prior
ruling denying his request,” the Fourth Department “‘[did] not read
any

of

the

language

employed

by

the

court

as

meaning

it

misapprehended or failed to exercise its discretion’ in denying
that request[.]” Id.
The instant petition contends that (1) petitioner was seized
and searched without probable cause; (2) the trial judge erred in
denying petitioner’s request to adjourn the trial for petitioner to
retain new counsel. For the reasons discussed below, the petition
is dismissed.
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III. Standard of Review
The Anti–Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”) applies to this petition. AEDPA “revised the conditions
under which federal courts may grant habeas relief to a person in
state custody.” Kruelski v. Connecticut Super. Ct. for Judicial
Dist.

of

Danbury,

316

F.3d

103,

106

(2d

Cir.

2003)

(citing

28 U.S.C. § 2254). Under AEDPA, a federal court may grant a writ of
habeas corpus under 28 U.S.C. § 2254 only if the state court’s
adjudication of the petitioner’s claim on the merits is “contrary
to, or involved an unreasonable application of, clearly established
Federal
United

law,

as

States,”

determined
28

U.S.C.

by
§

the

Supreme

2254(d)(1),

Court

or

of

involved

the
an

“unreasonable determination of the facts” in light of the evidence
presented. 28 U.S.C. § 2254(d)(2).
IV. Grounds Asserted in the Petition
A.

Fourth Amendment Claim

Petitioner’s Fourth Amendment claim is barred from habeas
review by Stone v. Powell, 428 U.S. 465 (1976). “Where the State
has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, a state prisoner may not be granted habeas
corpus

relief

on

the

ground

that

evidence

obtained

in

an

unconstitutional search or seizure was introduced at his trial.”
Id. at 494 (footnotes omitted). The Second Circuit has noted that
Stone requires only that “the state . . . provided the opportunity
to the state prisoner for full and fair litigation of the Fourth
3

Amendment claim.” Gates v. Henderson, 568 F.2d 830, 839 (2d Cir.
1977) (en banc), cert. denied, 434 U.S. 1038 (1978). A federal
court may undertake habeas review only in one of two instances:
(1) “if the state provides no corrective procedures at all to
redress Fourth Amendment violations,” or (2) if “the state provides
the process but in fact the defendant is precluded from utilizing
it by reason of an unconscionable breakdown in that process. . . .”
Id. at 840. Neither of those circumstances apply here. Accordingly,
this claim is dismissed.
B.

Request for Adjournment to Retain New Trial Counsel

Petitioner contends that the trial judge improperly failed to
exercise his discretion in refusing petitioner’s motion for a
continuance to retain new trial counsel. The Fourth Department’s
rejection of this claim was not contrary to, nor an unreasonable
application

of,

relevant

Supreme

Court

precedent.

“Since

the

Constitution nowhere specifies any period which must intervene
between the required appointment of counsel and trial, the fact,
standing alone, that a continuance has been denied, does not
constitute a denial of the constitutional right to assistance of
counsel. . . . Disposition of a request for continuance is of this
nature and is made in the discretion of the trial judge, the
exercise of which will ordinarily not be reviewed.” Avery v. State
of Alabama, 308 U.S. 444, 446 (1940); Grotto v. Herbert, 316 F.3d
198, 206 (2d Cir. 2003) (citing Morris v. Slappy, 461 U.S. 1, 11
(“Trial judges necessarily require a great deal of latitude in
4

scheduling trials. . . . [B]road discretion must be granted trial
courts on matters of continuances[.]”)). The Fourth Department
reasonably concluded, from the trial record, that the trial judge
in this case exercised his sound discretion in denying petitioner’s
motion for a continuance. This claim is thus dismissed.
VI. Conclusion
For the foregoing reasons, petitioner’s request for writ of
habeas corpus is denied and the petition (Doc. 1) is dismissed.
Because petitioner has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. The Clerk
of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

May 1, 2017
Rochester, New York.

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