Opinion
9:98-CV-1637 (GLS).
February 17, 2004
DAVID W. DART, Romulus, NY, Petitioner, Pro Se.
MICHAEL J. DANAHER, JR., Ass't Attorney General, HON. ELIOT SPITZER, Office of Attorney General, State of New York, Binghamton, NY, for the Respondent.
DECISION and ORDER
Petitioner, pro se David W. Dart, an inmate at the Five Points Correctional Facility, filed a writ of habeas corpus asserting three separate grounds in support of his claim that he was wrongfully convicted of second degree murder in February 1991. In responding to the petition, the Attorney General for the State of New York ("Attorney General"), acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition ( Dkt. Nos. 10-11 ). Thereafter, Dart filed a traverse and reply memorandum of law in further support of his petition ( Dkt. Nos. 18-19 ).
For the following reasons, the court finds that this action is both barred by the applicable statute of limitations and substantively without merit. Therefore, this court denies and dismisses Dart's petition.
I. Background A. State Court Proceedings
According to the testimony adduced at trial, on September 12, 1989, the lifeless body of Gillian Gibbons was found in her automobile in a municipal parking garage in Oneonta, New York. See Transcript of Trial of David W. Dart (1/28/91) ("Trial Tr.") at P. 518.
It was subsequently determined that Gibbons had died at approximately 1:30 p.m. on September 12, 1989, due to numerous stab wounds inflicted by a "Rambo-style" survival knife ( Trial Tr. at PP. 1463-75).
Senior Investigator Robert Courtright of the New York State Police and Officer A.J. Taylor of the Oneonta City Police Department were both assigned to investigate the Gibbons homicide ( Trial Tr. at P. 602). During the course of that investigation, it was learned that Dart had left his place of employment at approximately 12:00 p.m. on September 12, 1989 ( Tr. of Pretrial Felony Examination Hearing (9/20/89) at P. 27). Amy Chase-Snyder, who was interviewed by the authorities, indicated that at approximately 1:15 p.m. on September 12, 1989, she had driven into the municipal parking garage and noticed Dart, with whom she was familiar, "loitering" near a stairwell in the garage ( Trial Tr. at P. 650). When Chase-Snyder returned to the garage fifteen minutes later, she did not observe Dart ( Trial Tr. at P. 650).
Chase-Snyder indicated that she knew Dart because the two had attended the same school and he had previously been questioned about a sexual assault. See Suppression Tr. (1/4/91) at PP. 102-03; Trial Tr. at P. 565.
Investigator Courtright and Officer Taylor were thereafter assigned to a mobile surveillance team whose job it was to observe Dart's movements and behavior ( Trial Tr. at PP. 651-52). On September 14, 1989, while conducting that surveillance, the two men observed Dart drive past the murder scene on two separate occasions, for no obvious reason, before leaving the Oneonta vicinity ( Trial Tr. at PP. 602-07, 653-54). As Dart began traveling on Route 28 near Cooperstown, New York, Investigator Courtright activated an emergency light on his automobile and directed Dart to stop his vehicle ( Trial Tr. at P. 654). Investigator Courtright approached Dart's car and the two briefly spoke ( Trial Tr. at P. 654). However, it soon began raining, and Investigator Courtright asked Dart if he would accompany Investigator Courtright to his car for additional questioning ( Trial Tr. at PP. 655-56). Dart agreed, and upon entering Investigator Courtright's automobile, he was advised of his Miranda rights ( Trial Tr. at P. 656). When asked about his whereabouts on September 12, 1989, Dart claimed that between 1:00 p.m. and 3:00 p.m. he was at his home in Cherry Valley, New York ( Trial Tr. at PP. 657, 672). Since Investigator Courtright was aware that Dart's alibi conflicted with Chase-Snyder's statement that Dart was in the parking garage at 1:15 p.m. on the day of the homicide, Investigator Courtright asked Dart to travel to the police station to provide a statement regarding his whereabouts ( Trial Tr. at P. 658). Dart agreed, and traveled with Investigator Courtright and Officer Taylor to the New York State Police substation in Oneonta, New York ( Trial Tr. at P. 659). Once there, Dart was again informed of his Miranda rights ( Trial Tr. at P. 663) and thereafter, provided authorities with a written statement in which he indicated that he was at his home between the hours of 1:00 p.m. and 3:00 p.m. on September 12, 1989 ( Trial Tr. at PP. 664, 671-72; see also, Dkt. No. 12 at Ex. 10). After Dart had completed that statement, Investigator Courtright informed Dart that his claim concerning his whereabouts was inconsistent with Chase-Snyder's statement ( Trial Tr. at P. 667). When confronted with this information, Dart admitted to having killed Gibbons and drew a map which depicted where Dart had disposed of the murder weapon ( Trial Tr. at PP. 667-69). Dart was thereafter placed under arrest ( Tr. at P. 670).
Miranda v. Arizona, 384 U.S. 436 (1966).
The police subsequently recovered the knife in the vicinity of the area indicated by Dart on the map. ( Trial Tr. at P. 1070).
On October 19, 1989, an Otsego County grand jury indicted Dart of second degree murder arising out of the death of Gibbons. See Indictment No. 2 ( reproduced in Record on Appeal at P. R8). Prior to trial on that indictment, Dart's counsel filed an omnibus motion in which he, inter alia, i) requested a hearing to determine whether the police had probable cause to detain and arrest Dart; ii) moved to suppress all oral and written statements Dart had provided to authorities; and, iii) sought the suppression of all physical evidence obtained from Dart or any property he owned. See Omnibus Motion of Richard A. Rothermal, Esq. (11/6/90) ( reproduced at Dkt. No. 12, Ex. 4) ("Omnibus Motion") at ¶¶ 3-4. On January 4, 1991, Otsego County Court Judge Joseph A. Mogavero, Jr., conducted a suppression hearing relating to the Omnibus Motion. Following that proceeding, Judge Mogavero denied the motion to suppress in all respects ( See Findings, Decision and Order of Judge Mogavero (1/18/91) (Dkt. No. 12, Ex. 8) (" January 1991 Order").
The transcript of that suppression hearing is reproduced at Dkt. No. 12, Exs. 6-7.
In his January 1991 Order, Judge Mogavero concluded that the police had "at least a reasonable suspicion" to believe that Dart had caused Gibbons' death at the time he was first questioned by the authorities, and that the questioning of him by the police on September 14, 1989, was therefore lawful ( January, 1991 Order at P. 5). Judge Mogavero also concluded that Dart had been "made unmistakably aware" of his Miranda rights, and that Dart "voluntarily, intelligently and knowingly waived" those rights in making his admissions to the authorities ( Id. at PP. 7-8).
Dart's jury trial commenced on January 28, 1991, with Judge Mogavero presiding ( Trial Tr. at P. 1). At the conclusion of the trial, Dart was found guilty of second degree murder ( Trial Tr. at PP. 1871-73). Judge Mogavero thereafter sentenced Dart to an indeterminate term of twenty-five years to life imprisonment. See Sentencing Tr. (3/4/91) (reproduced at Dkt. No. 16, Ex. 21) at PP. 9-10.
Dart appealed his conviction and sentence to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed the conviction and sentence in all respects. People v. Dart, 186 A.D.2d 905, 589 N.Y.S.2d 208 (3d Dept. 1992). The Court of Appeals denied Dart leave to appeal. People v. Dart, 81 N.Y.2d 787 (1993).
Dart filed his first motion to vacate his conviction pursuant to § 440.10 of New York's Criminal Procedure Law ("CPL") on January 27, 1994 ( Dkt. No. 17, Ex. 29) ("January 1994 CPL Motion"). That motion was opposed by the Otsego County District Attorney's Office ( Dkt. No. 17, Ex. 30), and on July 20, 1994, Acting Otsego County Court Judge Kevin M. Dowd denied the motion ( Dkt. No. 17, Ex. 32). The Appellate Division denied Dart's application for leave to appeal Judge Dowd's decision. See People v. Dart, 71710, slip op. (Sept. 30, 1994) ( Dkt. No. 17, Ex. 37).
Dart filed a second CPL § 440 motion on February 21, 1997 ( Dkt. No. 17, Ex. 38) ("February 1997 CPL Motion"). That motion was opposed by the Otsego County District Attorney's office ( Dkt. No. 17, Ex. 39), and on May 30, 1997, Judge Dowd denied that application ( Dkt. No. 17, Ex. 41). The Third Department subsequently denied Dart's request for leave to appeal that decision. See People v. Dart, 10024, slip op. (Oct. 6, 1997) ( Dkt. No. 17, Ex. 44).
Dart filed his final motion to vacate pursuant to CPL § 440 on January 8, 1998 ( Dkt. No. 17, Ex. 45) ("January 1998 CPL Motion"). On March 11, 1998, the Otsego County District Attorney's Office filed papers in opposition to the motion ( Dkt. No. 17, Ex. 46), and on June 1, 1998, Judge Dowd denied the application ( Dkt. No. 17, Ex. 48). Dart's application for leave to appeal that decision was subsequently denied by the Appellate Division. See People v. Dart, 10681, slip op. (Sept. 28, 1998) ( Dkt. No. 17, Ex. 51).
B. This Action
Dart commenced this proceeding in this District on October 9, 1998 ( Pet at P. 7). Thereafter, this court issued an order directing a response to the petition ( Dkt. No. 2). The Attorney General subsequently filed an answer and memorandum in opposition to the petition, and has provided the court with various records associated with the relevant state court proceedings ( Dkt. Nos. 10-11 ). In opposing the petition, respondent argues that: i) the petition is barred by the one-year statute of limitations applicable to habeas petitions in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"); and, ii) the petition is substantively without merit ( Dkt. No. 11). On March 11, 1999, Dart filed additional documents in further support of his petition in which he claims he is entitled to federal habeas relief ( Dkt. Nos. 18-20 ).
Dart's petition was stamped by the Clerk's office as having been filed on October 20, 1998 ( Pet. at P. 1). However, the Second Circuit has held that due to the unique difficulties faced by incarcerated pro se litigants, a prisoner's pleading is deemed to be properly filed at the time he hands the papers to the prison authorities for transmittal to the court. Dory v. Ryan, 999 F.2d 679, 681-82 (2d Cir.), modified on reh'g, 25 F.3d 81 (2d Cir. 1994); Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.), cert. denied, 534 U.S. 886 (2001) (extending "prison mailbox rule" to petitions seeking writ of habeas corpus pursuant to 28 U.S.C. § 2254). Therefore, the court will assume, arguendo, that this action was commenced on October 9, 1998.
III. Discussion A. Statute of Limitations
The AEDPA instituted a one-year statute of limitations for habeas corpus petitions filed after April 24, 1996. 28 U.S.C. § 2244(d).
That section provides that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
* * *
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.28 U.S.C. § 2244(d).
The New York State Court of Appeals denied Dart leave to appeal on January 19, 1993. Dart, 81 N.Y.2d at 787. Since this conviction became final prior to April 24, 1996 (the effective date of the AEDPA), Dart was afforded one year from the enactment of the AEDPA, or until April 24, 1997, in which to timely file his federal habeas corpus petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998); Jarman v. New York, 234 F. Supp.2d 213, 216 (E.D.N.Y. 2002) (citing Ross); Rhodes v. Senkowski, 82 F. Supp.2d 160, 173-74 (S.D.N.Y. 2000) (citing Ross).
Dart's first state court challenge to his conviction following his direct appeal was his January 1994 CPL motion. As noted above, the Appellate Division denied Dart's request for leave to appeal the denial of that motion on September 30, 1994 ( Dkt. No. 17, Ex. 37). Since the proceedings relating to Dart's January 1994 CPL motion were completed prior to the enactment of the AEDPA, the statute of limitations applicable to the present federal habeas petition was not tolled during any portion of the time that Dart's initial CPL motion was pending. See e.g., Brooks v. Artuz, 98 CIV. 4449, 1999 WL 138926, at *2 (S.D.N.Y. Mar. 15, 1999) ("the only motions that are relevant to the tolling of the statute of limitations are those filed after the April 24, 1996, enactment date" of the AEDPA) (emphasis added); Soto v. Walker, 98-CV-1352 ( Dkt. No. 50), slip op. at P. 8 (N.D.N.Y. Oct. 8, 2002) (Peebles, M.J.) (citing Brooks), adopted Soto v. Walker, 98-CV-1352 ( Dkt. No. 53) (N.D.N.Y. Feb. 13, 2003) (Hurd, J.).
Dart's next state court challenge regarding his conviction was filed on February 21, 1997. See February 1997 CPL Motion. By the time of that filing, 302 days of the AEDPA's statute of limitations had already run. However, that application tolled the statute of limitations, and that tolling continued until October 6, 1997, when the Third Department denied Dart leave to appeal. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002) ("an application is pending [for purposes of AEDPA tolling] as long as the ordinary state collateral review process is in continuance — i.e., until the completion of that process") (internal quotations and citation omitted).
Dart's final state court challenge to his conviction was his January 1998 CPL motion which was filed 93 days after he was denied leave to appeal the denial of his February 1997 CPL motion. Therefore, by the time Dart filed his third CPL motion, 395 days of the AEDPA's statute of limitations had already passed. Although that filing tolled the statute of limitations, it did not cause the one-year statute of limitations to run anew. As the Second Circuit has held, such an interpretation would allow prisoners to "extend or manipulate the deadline for federal habeas review by filing additional petitions in state court." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per curiam) (AEDPA's tolling provision excludes time during which properly filed state applications for post-conviction relief are pending but does not reset date from which the one-year limitations period begins to run); Scarola v. Kelly, 99CIV. 4704, 2001 WL 849449, at *3 (S.D.N.Y. July 27, 2001) (filing of a post-judgment state court motion does not restart the one-year limitations period; "tolling extends the time to file a habeas petition by delaying the expiration of the statutory period, but has no effect once the period has expired"); Stokes v. Miller, 00CIV. 0806, 2000 WL 1121364, at *2 n. 3 (S.D.N.Y. July 21, 2000) ("[i]t is well-settled that post conviction or other collateral review does not start the one-year statute of limitations to run anew") (citing Smith).
The statute of limitations began to run again on September 28, 1998, when the Third Department denied Dart's application for leave to appeal the denial of his January 1998 CPL motion, and ran from that date until, at the earliest, October 9, 1998, the date on which Dart signed his federal habeas petition. Therefore, an additional 10 days of the statute of limitations had run from the time Dart's final application for leave to appeal was denied until the date on which the present action was commenced.
Thus, excluding the time during which the statute of limitations was tolled, Dart filed the present action 405 days after the enactment of the AEDPA. Therefore, Dart has exceeded the statute of limitations by 40 days, and this action is time-barred unless he has demonstrated that one of the two limited exceptions to the procedural bar imposed by the AEDPA's statute of limitations can excuse the late filing of his petition. See 28 U.S.C. § 2244(d).
The Second Circuit has indicated that a habeas petition that would otherwise be subject to dismissal in light of the AEDPA's statute of limitations may nevertheless be considered by a district court if either: i) the statute of limitations should be equitably tolled ( Smith, 208 F.3d at 17-18); or, ii) the petitioner has made a credible claim of actual innocence in his petition. See Whitley v. Senkowski, 317 F.3d 223, 225 (2d Cir. 2003). Therefore, this court must ascertain whether it may properly consider the substance of Dart's claims notwithstanding the fact that it was untimely filed.
1. Equitable Tolling
Equitable tolling applies "only in the 'rare and exceptional circumstance.'" Smith, 208 F.3d at 17 (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)) (alteration in original). The equitable tolling of the AEDPA's statute of limitations is only available when "'extraordinary circumstances' prevent a prisoner from filing a timely habeas petition." Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (quoting Smith, 208 F.3d at 17); Agramonte v. Walsh, 00CV892, 2002 WL 1364086, at *1 (E.D.N.Y. June 20, 2002). "To merit application of equitable tolling, the petitioner must demonstrate that he acted with reasonable diligence during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances beyond his control prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001) (internal quotation and citation omitted), cert. denied, 535 U.S. 1017 (2002); see also, Warren, 219 F.3d at 113 (citing Smith, 208 F.3d at 17).
The record establishes that Dart did not act with reasonable diligence between the time the AEDPA was enacted and the date on which he filed this action. Dart waited nearly ten months after the enactment of the AEDPA before filing his February 1997 CPL motion, and several months after the Appellate Division denied him leave to appeal before filing his final state-court challenge to his conviction. Nor does Dart allege, in any of the documents he has filed in this action, that he was prevented from timely filing his habeas petition due to circumstances over which he had no control. Therefore, the court finds no basis to invoke equitable tolling in order to enable it to consider Dart's untimely petition.
2. Actual Innocence
Dart does not assert a credible claim that he is actually innocent of murdering Gibbons in any of the three grounds asserted in his petition. See Pet. at Grounds One through Three. Moreover, in preparing this Decision and Order, the court has reviewed the trial transcript generated as a result of Dart's trial. That review establishes that Dart cannot properly assert a credible claim that he is actually innocent of the crime of which he was convicted. Accordingly, dismissal of the petition cannot be avoided on this basis. E.g. Whitley, 317 F.3d at 225-26; Catala v. Bennett, ___ F. Supp.2d ___, 02CIV. 2857, 2003 WL 21709522, at *5 (S.D.N.Y. July 21, 2003).
B. Substance of Petition
The court could properly dismiss the petition solely because it is barred by the statute of limitations and his late filing cannot be properly excused by the court. See Palmeri v. Greiner, 175 F. Supp.2d 461, 465 (E.D.N.Y. 2001); Nusbaum v. Shriver, 97-CV-1029, 1998 WL 59478, at *1 (N.D.N.Y. Feb. 10, 1998) (Pooler, D.J.) (dismissing petition filed twenty-two days after expiration of AEDPA's statute of limitations). However, as is discussed more fully below, Dart's petition also lacks substance.
1. Unconstitutional Arrest
Considering first Dart's claim that his conviction was the product of an "unconstitutional arrest" ( see Pet. at Ground Two), the court notes that in support of this claim, Dart argues that Investigator Courtright did not have probable cause to question him on September 14, 1989, and that he was detained against his will on that date ( Pet. at (attached) P. 13). Dart continues that because he was improperly "held" by the police on that date, the physical evidence that was obtained by the authorities and used against him at his trial, including the knife, knife sheath, his clothing and the map he drew for the authorities which indicated where the knife could be found, should have been suppressed ( Id.).
"[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, 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." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Stone v. Powell, 428 U.S. 465, 481-82 (1976)); see also, Montero v. Sabourin, 02CIV. 8666, 2003 WL 21012072, at *5 (S.D.N.Y. May 5, 2003) (quoting Stone, 428 U.S. at 481-82); see White v. Sabourin, 00CIV. 3287, 2002 WL 418023, at *4 (S.D.N.Y. Mar. 13, 2002).
The Second Circuit has noted that review of Fourth Amendment claims in habeas petitions may only be undertaken in one of two instances: i) if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or, ii) if the state has provided a corrective mechanism, but the defendant was precluded from effectively using that mechanism because of an unconscionable breakdown in the underlying process. Capellan, 975 F.2d at 70 (citation omitted); Willis v. Duncan, 00-CV-4171, 2003 WL 21845664, at *4 (E.D.N.Y. Aug. 4, 2003); Martinez v. Senkowski, 97-CV-624, 2000 WL 888031, at *7 (N.D.N.Y. June 28, 2000) (Scullin, C.J.).
Claims which allege lack of probable cause to arrest and which seek to suppress evidence obtained pursuant to an allegedly unlawful arrest are subject to this limited habeas review. Manning v. Strack, CV99-3874, 2002 W L 31780175, at *4-5 (E.D.N.Y. Oct. 11, 2002).
New York State has provided an opportunity for defendants to fully and fairly litigate Fourth Amendment claims. See CPL § 710; Capellan, 975 F.2d at 70 n. 1; Jackson v. Lacy, 74 F. Supp.2d 173, 176 (N.D.N.Y. 1999) (McAvoy, C.J.) (adopting Report-Recommendation of Magistrate Judge Ralph W. Smith, Jr.). In this case, Dart availed himself of this opportunity, Judge Mogavero conducted a hearing regarding the Omnibus Motion which sought, inter alia, the suppression of all physical evidence obtained from either Dart or any of his property. See Omnibus Motion at ¶¶ 3-4. Therefore, Dart can prevail on this aspect of his habeas petition only if he can demonstrate that an "unconscionable breakdown" occurred at that hearing. Capellan, 975 F.2d at 70.
Dart appears to argue that his rights were violated at the suppression hearing because the prosecution was allowed a five minute recess during its direct examination of Investigator Courtright, however, defense counsel's request for a ten minute recess during that hearing was denied by Judge Mogavero ( Pet. at (attached) P. 13). However, this court has reviewed the transcript of the suppression hearing conducted by Judge Mogavero ( Dkt. No. 12, Exs. 6-7). That review fails to confirm Dart's allegations that the hearing was conducted in an unfair manner.
In denying Dart's claim that the suppression hearing was not conducted in a fair manner, the Appellate Division "reject[ed] defendant's assertion that the manner in which the suppression hearing was conducted prejudiced him." Dart, 186 A.D.2d at 906-07.
To establish that an unconscionable breakdown occurred with respect to a Fourth Amendment claim, a petitioner must prove that "no state court . . . conducted a reasoned method of inquiry into relevant questions of fact and law or any inquiry at all into the Fourth Amendment claim." Taylor v. Kuhlmann, 36 F. Supp.2d 534, 549 (E.D.N.Y. 1999) (internal quotation and citation omitted); see also, Smith v. Pearlman, 01-CV-5835, 2003 WL 21738602, at *2 (E.D.N.Y. July 15, 2003) (citing Taylor); Senor v. Greiner, 00-CV-5673, 2002 WL 31102612, at *11 (E.D.N.Y. Sep 18, 2002). Judge Mogavero's ruling following the suppression hearing, as well as the Appellate Division's decision denying this aspect of Dart's appeal ( see Dart, 186 A.D.2d at 905-07), demonstrates that the state courts below conducted a reasoned method of inquiry into the relevant questions of fact and law relating to Dart's claims that: i) the police lacked probable cause to question, and thereafter arrested Dart for the crime; and, ii) the physical evidence used against Dart at his trial should have been suppressed. Therefore, Dart's second ground for relief must be denied. See Capellan, 975 F.2d at 70; Willis, 2003 WL 21845664, at *4; Martinez, 2000 WL 888031, at *7. 2. Illegal Search and Seizure
Turning to Dart's initial claim for habeas relief, in his first ground Dart alleges that his car was illegally searched before any search warrant was obtained by the authorities ( Pet. at Ground One). Specifically, he claims that David L. Harding, a New York State Trooper who was subsequently convicted of evidence tampering, illegally searched Dart's car on two separate occasions and that "[t]herefore, all evidence collected after these truly unconstitutional acts . . . should have been thrown out as the fruits of a tainted investigation" ( Pet. at (attached) P. 12).
See e.g., Chamberlain v. Lishansky, 970 F. Supp. 118, 120 (N.D.N.Y. 1997) (Hurd, M.J.).
To the extent this ground argues that evidence was obtained as a result of an unconstitutional search or seizure of Dart or his property and thereafter, improperly introduced against Dart at his trial, such a claim must be dismissed for the reasons discussed above concerning Dart's second ground for relief. See Capellan, 975 F.2d at 70; Willis, 2003 WL 21845664, at *4; Martinez, 2000 WL 888031, at *7. However, construing this claim broadly, see Montalvo v. Newton, 98CV8665, 2001 WL 1399527, at *4 (S.D.N.Y. Mar. 23, 2001) (habeas claims should be construed liberally) (citation omitted), this ground may also be viewed as one challenging the admissibility of the statements Dart provided the authorities. Since the doctrine discussed in Stone is limited to Fourth Amendment claims and has no applicability to habeas petitions alleging Miranda violations, see Bilbrew v. Garvin, 97CV1422, 2001 WL 91620, at *6 (E.D.N.Y. Jan. 10, 2001) (citing Withrow v. Williams, 507 U.S. 680 (1993)), the court considers whether Dart is entitled to habeas relief based upon a claimed violation of his Miranda rights.
Prior to enactment of the AEDPA, habeas courts considering claims relating to the voluntariness of a Miranda waiver and of a confession had generally held that state court findings that a defendant was given and understood his Miranda rights were presumed correct, but that the ultimate issue of the voluntariness of a waiver or confession was nonetheless subject to de novo review. E.g., Smith v. Sullivan, 1 F. Supp.2d 206, 211 (W.D.N.Y. 1998) (citing Carter v. Johnson, 131 F.3d 452, 461-62 (5th Cir. 1997); Derrick v. Peterson, 924 F.2d 813, 822 (9th Cir. 1990)). Under the AEDPA, however, a new, more deferential standard has been interposed, "plac[ing] a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000). In light of the AEDPA, habeas relief may not be granted as to such claims unless the state courts, in ruling on an individual's Miranda claims, unreasonably applied Supreme Court law. Cruz v. Miller, 255 F.3d 77, 80 (2d Cir. 2001); Holland v. Donnelly, 216 F. Supp.2d 227, 238 (S.D.N.Y. 2002), aff'd, 324 F.3d 99 (2d Cir. 2003), pet. for cert. filed, 02-10678.
In the criminal matter below, Judge Mogavero conducted a suppression hearing in order to ascertain the circumstances relating to Dart's statement to the police, and ultimately concluded that Dart's statement could be offered as evidence against him at his trial ( Dkt. No. 12, Ex. 8 at PP. 5-9). The Third Department rejected Dart's challenge to the admissibility of his statements. See Dart, 186 A.D.2d at 906-07. Therefore, these determinations are entitled to deference under the AEDPA absent a finding that they are contrary to or represent an unreasonable application of established Supreme Court precedent.
i. Clearly Established Supreme Court Precedent
Under Miranda, "before a suspect may properly be subjected to custodial interrogation, he must be informed that he has the right to remain silent, that any statement he makes may be used in evidence against him, and that he has the right to have counsel present." United States v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998) (citing Miranda, 384 U.S. at 467-72). In considering whether a party has voluntarily provided a statement to the police, courts are to consider the "totality of the circumstances," including, inter alia, evidence of police coercion, the length of the interrogation, the defendant's maturity and education, and whether the police failed to advise the defendant of his rights to both remain silent and have counsel present during the custodial interrogation. Withrow v. Williams, 507 U.S. 680, 693-94 (1993). Moreover, a coerced or otherwise involuntary statement may never be used for any purpose: " any criminal trial use against a defendant of his involuntary statement is a denial of due process of law. . . ." Mincey v. Arizona, 437 U.S. 385, 398 (1978) (emphasis in original); Smith v. Sullivan, 1 F. Supp.2d 206, 212 (W.D.N.Y. 1998) ("it is clearly established that an involuntarily-given confession is inadmissible in either a federal or state criminal trial").
ii. Contrary To, or Unreasonable Application of, Supreme Court Precedent
In this proceeding, Dart has not articulated any legal basis, in either his petition, traverse, or reply memorandum of law ( Dkt. Nos. 1, 18 and 19) upon which this court could properly find that the Third Department's decision regarding this issue was erroneous. Since no evidence has been presented by Dart upon which this court could conclude that his statements to the authorities were improperly admitted against him at his trial, the Third Department's denial of this aspect of his appeal was neither contrary to, nor an unreasonable application of, Miranda, Withrow, or Mincey. Therefore, Dart is not entitled to habeas relief under the AEDPA on this theory, and this final aspect of his first ground for relief must be denied.
3. Failure to Conduct DNA Testing on Evidence
Dart's final ground argues that the testimony at trial demonstrated that the victim's assailant was injured during the struggle with Gibbons, and that the assailant "could have very well bled in the car" ( Pet. at (attached) P. 14). Dart argues that deoxyribonucleic acid ("DNA") testing on the blood found in the victim's car "could have and would have exonerated" Dart ( Id.).
However, there is no evidence that the DNA testing of the blood samples obtained at the crime scene by the authorities would have exonerated Dart. Instead, Dart speculates that if such tests had been performed, the results of the tests would have established that he did not commit the crime ( Pet. at (attached) P. 14). Unfortunately for Dart, courts cannot grant habeas relief based upon unsubstantiated conclusions, opinions or speculation. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts may not grant "habeas relief on the basis of little more than speculation with slight support"); Jones v. O'Keefe, 99Civ. 12279, 2000 WL 1290595, at *5 (S.D.N.Y. Sept. 12, 2000) (citations omitted); Osinoiki v. Riley, CV-90-2097, 1990 WL 152540, at *3 (E.D.N.Y. Sept. 28, 1990) (denying petition for writ of habeas corpus, where, inter alia, two of petitioner's bases for relief were based on "nothing more than rank speculation"); Franza v. Stinson, 58 F. Supp.2d 124, 154 (S.D.N.Y. 1999).
Moreover, as now-Chief Judge Scullin has previously observed, "[t]here is no constitutional right to DNA testing in a criminal trial." Kellams v. Strack, 96-CV-0134, slip op. at 3 (N.D.N.Y. Feb. 2, 1999). A habeas petition based upon a claim that DNA testing should have been performed is based solely on state law. Id.; see N.Y. Crim. Proc. L. § 440.30. It is well-established that habeas corpus review is not available for claimed errors regarding state law. Estelle v. McGuire, 502 U.S. 62, 67-69 (1991); Ponnapula v. Spitzer, 297 F.3d 172, 181 (2d Cir. 2002) (federal habeas claims that rest solely on questions of state law "provide no basis for federal habeas relief") (citations omitted); see Jiminez-Londono v. Vacco, 97-CV-216, 1998 WL 146392, at *2 (N.D.N.Y. Mar. 25, 1998) (Pooler, D.J.) ("a federally issued writ of habeas corpus reaches only convictions obtained in violation of some provision of the United States Constitution") (citations omitted). Therefore, Dart's claim regarding the failure to conduct DNA testing "is not a constitutionally protected right and falls outside the scope of habeas corpus review." Kellams, slip op. at 3 (citations omitted). In light of the above, Dart's third ground for relief must be denied.
WHEREFORE, based upon the above, it is hereby
ORDERED, that Dart's habeas petition is DENIED and DISMISSED; and it is further
ORDERED, that the Clerk of Court serve a copy of this Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.