ROBINSON v. WENEROWICZ et al

Filing 14

MEMORANDUM, FILED. SIGNED BY HONORABLE J. WILLIAM DITTER, JR ON 7/23/13. 7/23/13 ENTERED AND COPIES E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RUSSELL ROBINSON
Petitioner
v.
MICHAEL WENEROWICZ, et al.
Respondents

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CIVIL ACTION

No. 11-CV-4032

MEMORANDUM
DITTER, J.

July 23, 2013

Presently before me is a counseled petition for a writ of habeas corpus filed
pursuant to 28 U.S.C. § 2254 by Russell Robinson. Robinson, who is currently
incarcerated in the State Correctional Institution in Graterford, Pennsylvania, challenges
his judgment of sentence for various controlled substance violations. For the reasons that
follow, the petition will be denied.
I. FACTS AND PROCEDURAL HISTORY
The state court summarized the facts leading to Robinson’s arrest as follows:
On July 1, 2008, at about 2:00 p.m. Deputy United States Marshals Roger
Bomenblit (“Bomenblit”) and Chad Grant (“Grant”) were in the City of
Chester, Delaware County, searching for a wanted fugitive, Horace Calhoun
(“Calhoun”). There were two warrants for Calhoun’s arrest outstanding:
one in connection with a drug trafficking case and a second for absconding
from federal probation. Calhoun was described as a forty-five year old
black male, 5'6" tall and weighing about 180 pounds. Bomenblit received
information regarding Calhoun’s whereabouts at approximately noon on the
same day. It was believed that Calhoun was in the company of another
fugitive who was wanted in connection with a homicide and Calhoun was
expected to be in Chester, in a rental SUV, possibly driven by a female.
Before setting out for Chester Bomenblit printed a photograph of Calhoun
from JNET [Pennsylvania’s Justice Network]. Bomenblit was personally

familiar with Calhoun. Six years prior, Bomenblit was employed by the
Federal Bureau of Prisons at a correctional facility in Fort Dix where
Calhoun was an inmate. Bomenblit had frequent contact with Calhoun
there over a period of a couple of years.
At approximately 2:00 p.m. Bomenblit, driving an unmarked vehicle
equipped with emergency lights, was stopped at an intersection in Chester,
when he saw an SUV driven by a male who he believed to be Calhoun. The
SUV passed in front of the marshals with the driver’s side closest to them.
Bombenblit followed the SUV and activated his emergency lights. The
vehicle immediately pulled over. Following the stop a male fitting
Calhoun’s description abruptly exited the vehicle. Twice Deputy Marshal
Bomenblit ordered the suspect back into his vehicle. Although Bomenblit
believed the driver to be Horace Calhoun, he was in fact Herman Ward.
Defendant Russell Robinson was in the passenger seat. Bomenblit
approached the driver’s side door and requested information from Ward,
still believing him to be Calhoun. Ward produced a “Pennsylvania
Identification Only” card bearing his name but did not produce a driver’s
license. When Bomenblit asked Ward whose vehicle he was driving, Ward
replied that it was a rental agreement covering the vehicle. . . . Bomenblit
inquired separately as to Ward’s and defendant’s intended destination and
received contradictory information from each man.
When Ward was unable to produce a driver’s license Bomenblit asked him
to step from the vehicle. . . . At the same time Deputy Marshal Grant
approached the passenger side where [Robinson] remained seated in the
SUV. As Grant approached, he observed [Robinson] “fiddling with
something down by his legs . . . grabbing or placing something underneath
the seat.” He could not however, see what [Robinson] had in his hands.
Grant asked [Robinson] to place his hands outside the window. He then
asked him to step outside the vehicle because, in light of [Robinson’s]
actions, Grant was concerned for his safety. [Robinson] was told to sit on
the curb near the front of the vehicle and he complied. When [Robinson]
exited the vehicle Grant walked back to the vehicle and standing outside the
vehicle he bent over through the open door and saw underneath the
passenger seat a plastic sixteen ounce ‘party’ cup on its side with the
opening facing out. Deputy Marshal Grant could see that the cup contained
keys, tissue and a white substance, he believed, based on his training and
experience to be cocaine. He looked into this area because he was
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concerned that [Robinson] hid a weapon underneath the seat. While also
looking for additional identification for the driver and a possible rental
agreement, [Grant] limited his search to the cup area and the center console
area. Detectives from the City of Chester responded to the scene of the stop
after the cocaine was discovered. One of the detectives told Deputy
Marshal Bomenblit that Herman Ward was not Calhoun but was Calhoun’s
first cousin.
See Def.’s Exh. G; Trial Court Opinion, August 28, 2009, at 2-5 (citations and footnotes
omitted).
Robinson was charged with possession with intent to deliver a controlled
substance, possession of a controlled substance, possession of drug paraphernalia, and
criminal conspiracy. Robinson and Ward both filed motions to suppress. The motions
were heard in the Court of Common Pleas for Delaware County. On February 2, 2009,
the trial court denied the motions to suppress the evidence recovered from the car stop
and to suppress Robinson’s statement, “Hey officer, the stuff in the cup was mine.” 1 The
court granted Robinson’s motion to suppress later statements he made at the police
station.
On April 2, 2009, following a jury trial, Robinson was convicted of possession
with intent to deliver a controlled substance and possession of a controlled substance. On
May 20, 2009, he was sentenced to a term of 50 months to 120 months incarceration and
a mandatory fine of $15,000. Trial counsel filed a timely appeal and a petition to
withdraw. New counsel was appointed to represent Robinson in the Superior Court.

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The admissibility of this statement was never challenged on appeal.

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On appeal, Robinson raised one claim, that the trial court erred in refusing to
suppress the evidence found under the front passenger seat in violation of Terry v. Ohio,
392 U.S. 1 (1968). The Superior Court specifically noted that Robinson did not challenge
the trial court’s conclusions that Robinson had no expectation of privacy as a passenger in
a rental car driven by an unauthorized driver and that the search beneath the passenger
seat was justified based on a reasonable belief that Robinson had access to a weapon.
Judgment of sentence was affirmed on June 30, 2010.
Robinson filed a petition of allowance of appeal in the Supreme Court of
Pennsylvania raising a different challenge to the search – whether Pennsylvania
recognized a good faith exception to allowing police to conduct an automobile stop based
on mistaken identity of the driver without probable cause or reasonable suspicion that the
driver was engaged in criminal activity or violation of motor vehicle laws. The petition
was summarily denied on December 2, 2010.
Represented by new counsel, Robinson filed the present, timely petition for a writ
of habeas corpus on June 20, 2011. In this petition, Robinson raises two claims: 1)
whether the trial court erred in refusing to suppress the evidence found under the front
passenger seat in violation of Terry v. Ohio and the Fourth Amendment; and 2) whether
the imposition of fines and costs violate the Eighth and Fourteenth Amendments.
Respondents have filed an answer to Robinson’s habeas petition asserting that the
claims are non-cognizable and meritless. Robinson has filed a reply thereto.

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II. DISCUSSION
A. Standard of Review
Pursuant to 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), a petition for habeas corpus may only be granted if (1)
the state court’s adjudication of the claim resulted in a decision contrary to, or involved
an unreasonable application of, “clearly established Federal law, as determined by the
Supreme Court of the United States;” or if (2) the adjudication resulted in a decision that
was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). Factual issues
determined by a state court are presumed to be correct and the petitioner bears the burden
of rebutting this presumption by clear and convincing evidence. Werts v. Vaughn, 228
F.3d 178, 196 (3d Cir. 2000) (citing 28 U.S.C. § 2254(e)(1)).
B. Claims
1. Unreasonable Search and Seizure
First, Robinson argues that the trial court violated his Fourth Amendment rights by
failing to suppress the drugs and drug paraphernalia found under the front passenger seat.
It is well established that a federal habeas court will not consider a convicted state
prisoner’s claim alleging a violation of Fourth Amendment rights if the petitioner has a
full and fair opportunity to litigate the merits of his claim in state court. Stone v. Powell,
428 U.S. 465 (1976); Deputy v. Taylor, 19 F.3d 1485, 1491 (3d Cir. 1994). In Stone v.

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Powell, the Supreme Court held:
[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 relief on the ground that
evidence obtained in an unconstitutional search or seizure
was introduced at his trial.
Id., 428 U.S. at 494 (footnotes omitted); see also Cardwell v. Taylor, 461 U.S. 571 (1983)
(per curiam) (consideration of a claim that evidence admitted at trial was the fruit of an
illegal arrest could not be considered in a habeas corpus petition as long as the state courts
had afforded a full and fair opportunity to litigate that claim). The United States Supreme
Court explained that the exclusionary rule was a “judicially created means of effectuating
the rights secured by the Fourth Amendment.” Stone, 428 U.S. at 482. Indeed, “[t]he
primary justification of the exclusionary rule . . . is the deterrence of police conduct that
violates Fourth Amendment rights.” Id. at 486. However, the application of the
exclusionary rule involves balancing. Id. at 488-495.
“The Court reasoned that the incremental benefit in deterring illegal police conduct
by applying the exclusionary rule in a habeas proceeding did not outweigh the cost to
society of excluding relevant, reliable evidence in a criminal prosecution.” Gilmore v.
Marks, 799 F.2d 51, 54-55 (3d Cir. 1986), cert. denied, 479 U.S. 1041 (1987). Even a
potentially meritorious Fourth Amendment claim is barred on habeas review when the
petitioner had a full and fair opportunity to litigate it. Deputy, 19 F.3d at 1491 (citing
Gilmore, 799 F.2d at 57).

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Robinson does not claim that he was denied an opportunity to present and argue
this Fourth Amendment claim. It is clear from the record that he had a full and fair
hearing on his motion to suppress prior to trial. Moreover, both the Superior Court and
Pennsylvania Supreme Court considered his claims on appeal. Thus, I conclude that
Robinson had a full and fair opportunity to litigate his Fourth Amendment claims in the
state courts. Accordingly, further review in this court is barred by Stone v. Powell, supra.
2. Imposition of costs and fines
Next, Robinson contends the trial court violated his Eighth and Fourteenth
Amendment rights by imposing a state mandated minimum fine and the payment of court
costs on him without first making a determination as to his ability to pay. The
Commonwealth argues that this claim was never presented to the state courts and
therefore is unexhausted and otherwise without merit. I find this claim is not cognizable
on federal habeas corpus review.
A federal court will not entertain a petition for writ of habeas corpus unless the
petitioner “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Moreover, the claim raised must attack “the validity of the
fact or length” of custody. Heck v. Humphrey, 512 U.S. 477, 482 (1994). In other words,
there must be “a nexus between the petitioner’s claim and the unlawful nature of the
custody.” See McKnight v. Corbett, 2011 U.S. Dist. LEXIS 139191, *57 (E.D. Pa. 2011)
(quoting Bailey v. Hill, 599 F.3d 976, 980 (10th Cir. 2010)). Although custody is

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liberally construed, the Court of Appeals for the Third Circuit has held that the imposition
of a fine “is not enough of a restraint to constitute ‘custody’ within the meaning of the
habeas corpus statutes.” Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003).
As in McKnight, Robinson is in custody but his claim challenges only the fines
levied against him as the result of his conviction. Any relief granted would not impact his
custody and thus, his claim is not cognizable under 28 U.S.C. § 2254.
III. CONCLUSION
After consideration of the issues raised in this petition and a review of the
evidence of record, I conclude that Robinson’s petition for writ of habeas corpus is
without merit. Accordingly, the petition will be denied.
Similarly, because Robinson’s claims are both legally and factually meritless, there
is no need to conduct an evidentiary hearing, as it would not change the outcome of this
matter. See 28 U.S.C. § 2254(e)(2); see also Schriro v. Landrigan, 550 U.S. 465, 474
(2007) (“an evidentiary hearing is not required on issues that can be resolved by reference
to the state court record”) (citations omitted).
An appropriate order follows.

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