Dashawn v. LaValle

Filing 12

-CLERK TO FOLLOW UP- DECISION AND ORDER denying petitioners request for writ of habeas corpus; and dismissing the petition (Doc. 1). 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. (Copy of Decision and Order sent by first class mail to petitioner.) Signed by Hon. Michael A. Telesca on 9/20/16. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DASHAWN DAVIS,
Petitioner,

No. 6:14-CV-06081 (MAT)
DECISION AND ORDER

-vsSUPERINTENDENT LAVALLE,
Respondent.

I.

Introduction
Dashawn Davis (“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
August 5, 2010, in New York State Supreme Court, Monroe County
(Buscaglia, J.), following a bench verdict convicting him of
criminal possession of a controlled substance in the third degree
(two counts), criminal possession of a weapon in the second degree,
criminal possession of a controlled substance in the fourth degree,
criminally

using

drug

paraphernalia,

criminal

possession

of

marijuana in the fourth degree, criminal possession of a controlled
substance in the seventh degree, and driving with excessively
tinted windows.
II.

Factual Background and Procedural History
The charges against petitioner arose from a September 19, 2009

incident in which petitioner’s vehicle was stopped for excessively
tinted windows. Upon approaching petitioner’s vehicle and speaking
with petitioner, who was the lone occupant, Buffalo Police Officer

Thomas Sercu noticed a smell of marijuana emanating from the car
and observed three cellular phones on petitioner’s lap. When
Officer Sercu ran petitioner’s license, he found that petitioner
was on parole. Upon search of petitioner’s person, Officer Sercu
and his partner located multiple bags of marijuana and a baggie of
cocaine. Officer Sercu’s partner contacted petitioner’s parole
officer, who elected to perform a search of petitioner’s residence
due to his violation of parole. That search revealed marijuana,
cocaine, two scales, a pill bottle, a substantial amount of cash,
and a loaded .357 Magnum revolver.
After a bench trial, petitioner was convicted as charged. On
August 5, 2010, petitioner was sentenced to an aggregate prison
term of eleven years plus five years post-release supervision. He
filed a counseled direct appeal with the New York State Supreme
Court,

Appellate

Division,

Fourth

Department,

which

court

unanimously affirmed his conviction on December 28, 2012. See
People

v.

Davis,

101

A.D.3d

1778

(4th

Dep’t

2012),

lv.

denied,20 N.Y.3d 1060 (2013). Much later, petitioner moved for a
writ

of

error

coram

nobis,

which

was

denied.

See

People

v.

Peterkin, 136 A.D.3d 1354 (4th Dep’t 2016).
The petition argues that petitioner was subjected to an
unlawful arrest, the fruits of which should have been suppressed.
Specifically, petitioner argues that police lacked probable cause
to stop his vehicle for excessively tinted windows.

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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
Although the petition spreads the argument over two grounds,
it essentially argues only one ground for relief: that the stop of
petitioner’s vehicle was unlawful and therefore any fruits of the
arrest

should

have

been

suppressed.

Petitioner

moved

for

suppression in the trial court, but the court found that the stop
of his vehicle “in daylight for unlawfully tinted windows in
violation of [New York] Vehicle and Traffic Law § 375 . . . was

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lawful.” Appendix,1 at 107. Petitioner did not challenge that
finding. The Court notes that, although the issue was not argued by
petitioner on direct appeal, the Fourth Department found that the
search and seizure of petitioner occurred incident to a “lawful
traffic stop and pat down.” Davis, 101 A.D.3d at 1779.
Petitioner failed to exhaust his argument that the traffic
stop was unlawful. The claim is thus procedurally barred from being
brought in New York State court because it was never preserved for
appellate review. See N.Y. CPL § 470.05(2). When a petitioner fails
to properly exhaust his claims in state court, and the claims can
no longer be raised as a result of his failure to follow state
procedure, no remedy is “available in the courts of the State”
within the proper meaning of 28 U.S.C. § 2254(b). Grey v. Hoke, 933
F.2d 117, 120 (2d Cir. 1991). Therefore, a procedurally barred
claim will be unexhausted but “deemed exhausted” by the federal
courts. St. Helen v. Senkowski, 374 F.3d 181, 183 (2d Cir. 2004);
McKethan v. Mantello, 292 F.3d 119, 122–23 (2d Cir. 2002) (claims
deemed exhausted where they were “procedurally barred for not
having been raised in a timely fashion”), cert. denied, 555 U.S.
903 (2008).
Accordingly,

petitioner's

claim

is

deemed

exhausted

but

procedurally barred, as he no longer has a state court forum in

1

Respondent filed a state court record and appendix with the
Court, in hard copy form, on April 23, 2014.
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which to raise his claim. See Ramirez v. Att'y General of N.Y., 280
F.3d 87, 94 (2d Cir. 2001) (“Even if a federal claim has not been
presented to the highest state court or preserved in lower state
courts under state law, it will be deemed exhausted if it is, as a
result, then procedurally barred under state law.”) (citing Grey v.
Hoke, 933 F.2d 117, 120–21 (2d Cir. 1991)).
“[A] finding of procedural default bars habeas review of
Petitioner's federal claim unless he can show cause for the default
and prejudice attributable thereto, or demonstrate that failure to
consider the claim will result in a fundamental miscarriage of
justice.” Cooley v. Superintendent, 2011 WL 2651078, *9 (W.D.N.Y.
July 6, 2011). Petitioner has not alleged cause and prejudice to
overcome the procedural default. Moreover, for purposes of the
miscarriage-of-justice exception, he has made no factual showing
that he is “‘actually innocent’ (meaning factually innocent) of the
crime for which he was convicted.” Carvajal v. Artus, 633 F.3d 95,
108 (2d Cir. 2011) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). His claim is procedurally defaulted from habeas review
and dismissed on that basis.
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

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Court declines to issue a certificate of appealability. The Clerk
of the Court is requested to close this case.
ALL OF THE ABOVE IS SO ORDERED.

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

September 20, 2016
Rochester, New York.

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