Escalera v. Lempke
DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Angel R. Escalera and denying a certificate of appealability. Signed by Hon. Michael A. Telesca on 10/16/17. A copy of this Decision and Order was sent via U.S. Mail on today's date to the pro se petitioner by Chambers' staff.(AFB)-CLERK TO FOLLOW UP-The Clerk of Court is directed to close this case.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
Proceeding pro se, Angel Escalera (“Petitioner”) instituted
this proceeding pursuant to 28 U.S.C. § 2254, alleging that he is
being unlawfully detained in Respondent’s custody. Petitioner is
presently incarcerated as the result of a judgment of conviction
entered against him in New York State Supreme Court, Erie County
(Wolfgang, J.), following a guilty plea to one count of firstdegree criminal possession of a controlled substance (N.Y. Penal
Law § 221.01(1)).
Factual Background and Procedural History
At the time of the incident at issue, Petitioner was in the
custody of the New York State Division of Parole. His assigned
parole officer was Melissa Himmelsbach (“Himmelsbach”). In the
course of supervising Petitioner, Himmeisbach had observed him
commit a number of violations of his parole conditions, including
employment, and display of a poor attitude.
In February of 2011, Himmelsbach received information from an
agent with the Drug Enforcement Agency (“DEA”) that Petitioner
might be selling drugs out of his home. Himmelsbach independently
investigated the matter by speaking further with the DEA agent, as
well as local police officers, other parolees, and her fellow
parole officers. The investigation led Himmelsbach to suspect that
Petitioner indeed might be in possession of drugs. Accordingly, she
made plans to stop by his residence on March 15, 2011, to conduct
a home visit and search.
Buffalo. Himmselsbach was assisted by several officers with the
Buffalo Police Department (“BPD”). Upon her arrival, Himmeisbach
informed Petitioner that she was there for a home visit, and that
some BPD officers were with her to conduct a search. She and the
other officers handcuffed Petitioner and cleared the residence for
safety purposes. With the assistance of a drug-sniffing dog,
Himmelsbach and the BPD officers recovered more than 8 ounces of
cocaine from Petitioner’s bathroom.
Petitioner was charged, under Erie County Indictment No.
00611-2011, with Criminal Possession of a Controlled Substance in
the First Degree (New York Penal Law (“P.L.”) § 220.21 (1)).
Through counsel, Petitioner moved to suppress the evidence seized
during the March 15, 2011 warrantless search of his residence on
the basis that his parole officer acted on behalf of the local law
enforcement agency, thereby rendering the search unlawful under the
Fourth Amendment. Following a hearing, Petitioner’s motion to
suppress was denied, and he proceeded to a jury trial. Three days
into the trial, Petitioner elected to plead guilty as charged in
the indictment. He was sentenced to a determinate term of 15 years
plus 5 years of post-release supervision.
Through counsel, Petitioner appealed his conviction to the
Appellate Division, Fourth Department, of New York State Supreme
Court. The Appellate Division unanimously affirmed the judgment on
October 3, 2014. People v. Escalera, 121 A.D.3d 1519, 1519, 993
N.Y.S.2d 605, 606 (4th Dep’t 2014). With regard to Petitioner’s
Fourth Amendment contention, the Appellate Division held that it
was unpreserved for review, inasmuch as Petitioner contended at the
suppression hearing that his parole officer, in conducting the
search in question, was acting as a de facto agent of the local
police while, on appeal, he contended that the parole officer was
acting on behalf of the DEA. Escalera, 121 A.D.3d at 1519–20. In
any event, the Appellate Division concluded, the claim was without
merit, given the parole officer’s uncontroverted testimony that she
was informed by a DEA agent prior to the search that the federal
prosecutor “will most likely not want to get involved” in the case
if an arrest were made, and the fact that no federal charges were
testified that she conducted the search following the receipt of
credible information from law enforcement sources that Petitioner
possessed a large quantity of cocaine in his apartment, which
constituted a violation of his parole conditions. The suppression
court found the parole officer’s testimony in that regard to be
credible, and the Appellate Division concluded that the suppression
court properly determined that the search was rationally and
reasonably related to the performance of the parole officer’s
duties, and that suppression was not warranted.
With regard to Petitioner’s contention that he was denied his
statutory right to testify before the grand jury, the Appellate
Division held that it was forfeited by Petitioner’s guilty plea.
Appellate Division found that claim to be unpreserved due to
Petitioner’s failure to move to withdraw the plea or to vacate the
judgment of conviction on that ground. In any event, the Appellate
Division stated, that contention likewise was forfeited by his
guilty plea. On December 18, 2014, the New York Court of Appeals
denied leave to appeal. People v. Escalera, 24 N.Y.3d 1083 (2014).
Petitioner then timely filed the instant petition, asserting
the Fourth Amendment claim raised on direct appeal as his sole
ground for habeas relief. Respondent answered the petition and
traverse as well as a memorandum of law.
For the reasons discussed below, the request for a writ of
habeas corpus is denied, and the petition is dismissed.
Petitioner’s claim must be assessed by reference to the
Supreme Court’s holding in Stone v. Powell, 428 U.S. 465 (1976),
regarding federal habeas review of Fourth Amendment claims that
have been litigated in state court:
[W]here the State has provided an opportunity for full
and fair litigation of a Fourth Amendment claim, a state
prisoner may not be granted federal habeas corpus relief
unconstitutional search or seizure was introduced at his
Stone, 428 U.S. at 494–95. The Second Circuit has interpreted
Stone’s holding as permitting federal habeas review of Fourth
Amendment claims only in limited circumstances, namely, where “the
state provides no corrective procedures at all to redress Fourth
Amendment violations,” Gates v. Henderson, 568 F.2d 830, 840 (2d
Cir. 1977) (en banc) (citations omitted), cert. denied, 434 U.S.
1038 (1978), or “an unconscionable breakdown in that process”
“preclude[s] [the defendant] from utilizing it . . . .” Id.
Here, Petitioner litigated his Fourth Amendment claim at the
pretrial suppression hearing and on direct appeal to the Appellate
Division, Fourth Department. Thus, New York State’s corrective
process1 not only was available, but was actually utilized by
Petitioner. “[O]nce it is established that a petitioner has had an
opportunity to litigate his or her Fourth Amendment claim (whether
or not he or she took advantage of the state’s procedure), the
[state] court’s denial of the claim is a conclusive determination
that the claim will never present a valid basis for federal habeas
relief.” Graham v. Costello, 299 F.3d 129, 134 (2d Cir. 2002); see
also Blagrove v. Mantello, No. 95–2821, 104 F.3d 350 (table), 1996
WL 537921, at *2 (2d Cir. Sept.24, 1996) (where the “Fourth
suppression hearing and before the Appellate Division in [his] pro
se brief” habeas petitioner’s “Fourth Amendment argument is barred
[from federal habeas review] because the issue was fully and fairly
litigated in the state courts”); McPherson v. Greiner, No. 02
CIV.2726 DLC AJP, 2003 WL 22405449, at *15–16 (S.D.N.Y. Oct. 22,
2003) (“McPherson litigated his Fourth Amendment claim at the
pretrial suppression hearing and on direct appeal to the First
Department. Thus, state corrective process was not only available
but was employed for McPherson’s Fourth Amendment claim, which
therefore cannot support a petition for a writ of habeas corpus.”)
(internal citation to record and other citations omitted).
As the Second Circuit has noted, “the ‘federal courts have approved New
York’s procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim.
Proc. Law § 710.10 et seq. (McKinney 1984 & Supp. 1988), as being facially
adequate.’” Capellan v. Riley, 975 F.2d 67, 70 & n. 1 (2d Cir. 1992) (quoting
Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989); citation omitted).
unconscionable breakdown” in New York State’s corrective process;
it is well established that “a mere disagreement with the outcome
of a state court ruling is not the equivalent of an unconscionable
breakdown in the state’s corrective process.” Capellan, 975 F.2d at
72. Accordingly, the Court finds that Petitioner’s Fourth Amendment
claim is barred from federal habeas review. See id.
For the foregoing reasons, Petitioner’s request for a writ of
habeas corpus is denied, and the petition (Dkt #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), no
certificate of appealability shall issue. The Clerk of Court is
directed to close this case.
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
October 16, 2017
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?