Opinion
9:19-cv-00952 (LEK/TWD)
07-27-2022
KEITH DOUGLAS, Petitioner, v. TIMOTHY McCARTHY, Respondent.
KEITH DOUGLAS Petitioner, pro se HON. LETITIA JAMES Attorney General for the State of New York Attorney for Respondent MARGARET A. CIEPRISZ, ESQ. Assistant Attorney General
KEITH DOUGLAS Petitioner, pro se
HON. LETITIA JAMES Attorney General for the State of New York Attorney for Respondent
MARGARET A. CIEPRISZ, ESQ. Assistant Attorney General
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Petitioner Keith Douglas (“Petitioner”), a New York State prisoner appearing pro se, has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) He is currently incarcerated at Sing Sing Correctional Facility. (Dkt. No. 20.) In 2015, following a trial by jury, Petitioner was convicted in Albany County Court of three counts of third degree criminal possession of a controlled substance, one count of fourth degree criminal possession of a controlled substance, two counts of second degree criminally using drug paraphernalia, two counts of third degree criminal sale of a controlled substance, and one count of fifth degree criminal possession of marijuana. (Dkt. No. 1 at 1-2.) Petitioner was sentenced, as a second felony offender, to an aggregate determinate prison term of 28 years, to be followed by three years of post-release supervision. Id. at 1. The Appellate Division, Third Department, affirmed the conviction on June 14, 2018, and the New York Court of Appeals denied leave to appeal on July 31, 2018. People v. Douglas, 162 A.D.3d 1212, 1213 (3rd Dep't), lv. denied, 31 N.Y.3d 1147 (2018). This action followed. (Dkt. No. 1.)
Citations to all submissions refer to the pagination generated by CM/ECF, the Court's electronic filing system. Excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected unless indicated.
Petitioner contends he is entitled to federal habeas relief because (1) counsel was ineffective due to a conflict of interest during the pretrial proceedings, id. at 5-9, 10-11; (2) there were various defects with the search warrant executed against him, including the fact that no probable cause supported it, id. at 7-8; and (3) his Fourth Amendment rights were violated when law enforcement exceeded the scope of the search warrant, id. at 8-9. (See also Dkt. No. 18.) Respondent, through the State of New York, filed an answer to the petition, together with the pertinent state court records and a memorandum of law. (Dkt. Nos. 11, 12, 13.) Generally, Respondent contends Petitioner's claims provide no basis for habeas relief because Petitioner has failed to establish his first attorney labored under an actual conflict of interest that impacted his defense, has established no prosecutorial misconduct in the timing of the conflict's disclosure, and Fourth Amendment claims are not cognizable on habeas review. (Dkt. No. 11 at 14-23.) Petitioner filed a traverse. (Dkt. No. 18.)
The state court record is found at Dkt. No. 13-1 and the state court transcript is found at Dkt. No. 13-2.
For the reasons that follow, the Court recommends that Petitioner's petition be denied and dismissed, and that no certificate of appealability be issued.
II. BACKGROUND
On October 24 and 29, 2013, Petitioner sold crack cocaine from his Albany, New York apartment to a confidential police informant (“CI”). On October 30, 2013, police executed a search warrant at Petitioner's apartment, where they recovered, inter alia, large quantities of cocaine, heroin, and marijuana. Police arrested Petitioner outside of his home and recovered additional cocaine hidden inside of Petitioner's mouth. These events led to two indictments, later consolidated for trial before the Hon. Thomas A. Breslin in Albany County Court. (Dkt. No. 13-1 at 135-4; Dkt. No. 13-2 at 45-48.)
A. Pre-Trial Proceedings
On November 20, 2013, Petitioner was arraigned on the first indictment charging him with three counts of third degree criminal possession of a controlled substance and two counts of second degree criminally using drug paraphernalia, all relating to the evidence recovered when police executed the search warrant at his apartment on October 30, 2013. The Albany County Public Defender's Office was appointed to represent Petitioner, and Assistant Public Defender Marie Beckford was assigned to the case. (Dkt. No. 13-1 at 135-39; Dkt. No. 13-2 at 2-4.)
On February 4, 2014, Petitioner appeared with Beckford before Judge Breslin for a motion to suppress the evidence recovered through the search warrant. (Dkt. No. 13-1 at 147-49; Dkt. No. 13-2 at 9-37.) During the hearing, the People presented evidence of Petitioner's participation in the October 2013 drug sales to serve as proof of probable cause for the search warrant the police effectuated upon Petitioner and his residence. (Dkt. No. 13-2 at 12-22.) On cross-examination, Beckford questioned Albany County Police Department Detective Kenneth Koonz, who prepared the search warrant application, about the two controlled buys and probed the reliability of the CI. Id. at 23-33. At the conclusion of the hearing, the court denied Petitioner's motion to suppress concluding “the issuance of the warrant was proper given the specific factual allegations with regard to the drug sales occurring at that address, within a period of time very shortly before the issuance and execution of the warrant.” Id. at 34-36.
Petitioner was arraigned on the second indictment on April 4, 2014, and charged with resisting arrest, one count of third degree criminal possession of a controlled substance, one count of fifth degree criminal possession of marijuana, and four counts of third degree criminal sale of a controlled substance. (Dkt. No. 13-1 at 140-46; Dkt. No. 13-2 at 40-44.) Two of the sale charges related to the controlled buys conducted on October 24 and 29, 2013, the resisting arrest and third degree criminal possession of a controlled substance charges related to Petitioner's arrest and the cocaine recovered from his mouth, while and the marijuana possession charge was for drugs recovered through the search warrant. Id. at 188-89.
Petitioner also was charged with drug sales on November 30, 2011, and January 23, 2012, but those counts were dismissed before trial. (Dkt. No. 13-1 at 188-89.)
On May 6, 2014, Judge Breslin granted the People's unopposed motion to consolidate the two indictments. Id. at 45-48.
On May 30, 2014, Petitioner appeared with Beckford before Judge Breslin for a suppression hearing regarding charges in the second indictment. However, the hearing was not held because a conflict of interest had been discovered: the CI who had made the two controlled drug buys from Petitioner in October 2013 was represented by an attorney from Beckford's office in a pending misdemeanor case unrelated to Petitioner's charges. Id. at 49-50. Beckford reported that she had discussed the conflict with Petitioner, who had decided not to waive it. Id. at 50. As such, the court appointed the Albany County Alternative Public Defender's Office to represent Petitioner. Id. at 50-51. Assistant Alternate Public Defender Joseph Meany was assigned to the case and represented Petitioner throughout the remainder of the trial court proceedings. Id. at 53.
During the second suppression hearing, Petitioner appeared with Meany before Judge Breslin on June 26 and July 11, 2014, during which Petitioner sought to suppress the cocaine and cell phone recovered during his October 30, 2014, arrest. Meany also raised an issue regarding the validity of the search warrant and sought to reopen asserting “there were some facial insufficiencies” regarding the return of the warrant. Id. at 55-56, 104-05.
Following the hearing, at which Detective Koonz and two Albany County police officers involved with Petitioner's arrest testified, Judge Breslin ruled there was probable cause for the search warrant's issuance and for Petitioner's arrest, and that the property seized from Petitioner was the product of a lawful search incident to arrest. Id. at 108-12.
B. Trial
Petitioner's jury trial began on November 17, 2014. Id. at 127. The People called Detective Koonz and the CI, along with several Albany County police officers and the chemist who analyzed the drugs recovered from Petitioner and his apartment. According to the testimony adduced a trial, the CI made two controlled purchases of crack cocaine from Petitioner in his apartment at 646 Clinton Avenue in the City of Albany on October 24 and 29, 2013. Id. at 308-13, 321, 323-31, 343-44, 413-24.
Detective Koonz obtained a search warrant based on the two controlled buys, which police executed on October 30, 2013. Id. at 344-46. Prior to executing the search warrant, Detective Koonz directed the CI to telephone Petitioner and arrange to meet at a location away from his apartment to buy more crack cocaine. Id. at 344-46, 424-25.
Following the CI's call, Petitioner left his apartment and entered a car. An arrest team approached the car while the warrant team entered the apartment. Id. at 350, 468-68, 529-31. After police ordered Petitioner out of the car, Petitioner spit out two plastic bags of crack cocaine. Id. at 454. Police officers also recovered a cell phone from Petitioner's pocket. Detective Koonz later dialed the number the CI had used to arrange the prior sales and Petitioner's cell phone rang and displayed Detective Koonz's phone number. Id. at 357, 476-79.
Meanwhile, the search warrant team recovered numerous bags of crack cocaine, heroin, digital scales, packaging materials, $70 of the pre-recorded “buy money” used in the controlled purchase made on October 29, 2013, a jar filled with marijuana, and mail addressed to Petitioner at that address. Id. at 351-52, 401-02, 536, 540-45, 577-90.
The main thrust of the defense theory, as expressed in Meany's opening statement and summation, was that the police mishandled evidence and testified falsely, and the CI lacked credibility. See id. at 293-301, 683-715. Petitioner did not testify. In his defense, Petitioner called Abbygail Bayrd, who testified she arranged to meet Petitioner for dinner on October 30, 2013. Id. at 665-66. She drove to Petitioner's block and called him when she parked at the corner of Clinton and Ontario. Id. at 666-67. Just after Petitioner got into the passenger seat of her car, the police approached and arrested Petitioner. Id. at 668-69. Bayrd stated she did not notice anything in Petitioner's mouth and did not see him spit anything out, but admitted “he never said a word” and that she and Petitioner were on opposite sides when they exited the vehicle. Id. at 668-69, 671-72.
C. Verdict and Sentencing
On November 21, 2014, Petitioner was convicted of three counts of third degree criminal possession of a controlled substance, one count of fourth degree criminal possession of a controlled substance, two counts of second degree criminally using drug paraphernalia, two counts of third degree criminal sale of a controlled substance, and one count of fifth degree criminal possession of marijuana. The jury acquitted Petitioner of resisting arrest. Id. at 676-78.
On January 9, 2015, the court sentenced Petitioner, as a second felony offender, to an aggregate determinate prison term of 28 years, to be followed by three years of post-release supervision. Id. at 831-33.
D. Motion to Vacate Judgment of Conviction
While his direct appeal was pending, Petitioner filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law (“CPL”) § 440.10, asserting, as relevant to his present claims, that (1) the prosecutor committed misconduct by not informing the court when Beckford was appointed that she had a conflict of interest because the CI was represented by an attorney in her office, (Dkt. No. 13-1 at 3-5, 12-15), and (2) he was denied the effective assistance of counsel because Beckford had a conflict of interest at the time of the February 4, 2014, suppression hearing. Id. at 8-9. Petitioner also asserted that Beckford was ineffective for not challenging the search warrant as defective. Id. at 9-10. The People opposed the motion. Id. at 33-42.
On August 28, 2015, Judge Breslin denied Petitioner's motion in its entirety. Id. at 4350. In a written decision, the court determined Petitioner's claims were procedurally barred from review under CPL § 440.10(2)(b), which requires the court to deny a motion to vacate a conviction when the judgment is pending appeal and the record is sufficient to address the claims on appeal. Id. at 47-48.
With respect to Petitioner's prosecutorial misconduct claim, the court concluded that even if the claim “could somehow be said to be raising an issue which does not appear in the record . . . no hearing would be required to resolve the issues and the motion would be denied.” Id. at 48-49. The court explained:
Defendant ignores the fact that the representation of the confidential informant (CI) did not become relevant until the second indictment was handed down (containing sale counts) and then consolidated with the first indictment such that this court then had both cases. New counsel (Meany) acknowledged in his submission dated August 13, 200214 [sic] that the CI was not relevant to the earlier case. Consolidation occurred on May 6 and the Assistant Public Defender was replaced on May 30. Defendant has not shown that the prosecutor was concealing this information so as to gain an unfair advantage. It is quite common for a prosecutor to not reveal the identity of a CI until necessary to do so (often so that the police can continue to employ the CI in other cases and in order to protect the CI's safety). Therefore, even if the prosecutor was aware of the conflict (which has not been established), the conflict existed for less than a month and certainly did not exist at the time of the earlier suppression motion or hearing. Furthermore, defendant has not shown how he was prejudiced. Although he appears to fault the first attorney for not making certain challenges concerning the search warrant, this has nothing to do with the prosecutor and/or the CI. Defendant has not shown that there was any prosecutorial misconduct. Furthermore, he has not shown that any asserted conduct on the prosecutor (appearing or not appearing in the record) operated to deprive him of due process or a fair trial.Id. at 48-50 (internal citations omitted).
Petitioner's subsequent counseled application for leave to appeal the denial of his pro se § 440 motion was granted by the Appellate Division and the appeal was consolidated with his direct appeal. Id. at 51-55.
E. Direct Appeal
In a counseled brief to the Appellate Division, as relevant here, Petitioner argued the 440 court erred in denying his pro se motion without a hearing because the motion raised issues of fact about when Beckford's conflict of interest arose and when the prosecution first learned of the conflict. Id. at 88-92. Petitioner asserted that if the concurrent representation occurred during the grand jury presentation, while plea negotiations were ongoing, and/or when counsel was preparing pretrial motions, “the conflict was an actual one requiring a finding of ineffective assistance regardless of whether he can show that it affected his defense.” Id. at 92. Petitioner also argued the trial court erred in denying Petitioner's motion to suppress tangible evidence seized under the October 30, 2013, search warrant, since neither document bore the printed name of the magistrate who issued the warrant and administered the oath to the attesting police officer. Id.
Petitioner also filed a pro se supplemental brief in which he argued, inter alia, the police exceeded the authority of the search warrant by arresting him across the street from his apartment because the warrant permitted only the search of his home and anyone inside the premises. Id. at 415-17, 423. The People responded and Petitioner filed a counseled reply. Id. at 495-516, 543-61.
On June 14, 2018, the Appellate Division unanimously affirmed the judgment of conviction and the denial of Petitioner's pro se motion to vacate the conviction. Id. at 562-68. Specifically, the Appellate Division rejected Petitioner's claim that the 440 court erred in denying the motion without a hearing. Id. at 567. The Appellate Division determined no evidentiary hearing was needed to resolve when the conflict arose because that information was contained in the record: it arose when the second indictment was consolidated with the first indictment in May 2014, because the second indictment, and not the first, was based on the CI's testimony. Id. at 567. The Appellate Division noted new counsel was appointed later that same month, and that Petitioner made “no claim that he received ineffective assistance of counsel as a result of the conflict during this brief period.” Id. Moreover, because Petitioner's “defense could not have been harmed by a conflict that did not exist, any information about the period before the consolidation would be irrelevant. Thus, the motion was properly denied.” Id. The Appellate Division concluded Petitioner's “remaining contentions, including those raised in his pro se submission, have been examined and found to be lacking in merit.” Id. at 568.
Petitioner filed a counseled leave application in which he asserted, inter alia, the Appellate Division erroneously concluded no hearing was required on the 440 motion because the record failed to disclose when the concurrent representation by Beckford began, and thus “whether [a conflict of interest] existed at critical stages of [Petitioner's] case or whether the People failed to timely disclose” the conflict. Id. at 571-73. The Court of Appeals denied Petitioner's application on July 31, 2018. Id. at 574. Petitioner's subsequent pro se motion for re-argument filed in the Appellate Division was denied on November 1, 2018. Id. at 575-82.
III. ANALYSIS
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the state court's decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States” or “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); Cullen v. Pinholster, 563 U.S. 170, 180-81, 185 (2011); Premo v. Moore, 562 U.S. 115, 120-21 (2011); Schriro v. Landrigan, 550 U.S. 465, 473 (2007). This standard is “highly deferential” and “demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, 562 U.S. 594, 598 (2011) (per curiam) (quoting Renico v. Lett, 559 U.S. 766, 773 (2010) (internal quotation marks omitted)).
The Supreme Court has repeatedly explained that “a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that ‘there is no possibility fairminded jurists could disagree that the state court's decision conflicts with th[e Supreme] Court's precedents.'” Nevada v. Jackson, 569 U.S. 505, 508-509 (2013) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)); see Metrish v. Lancaster, 569 U.S. 351, 358 (2013) (explaining that success in a habeas case premised on § 2254(d)(1) requires the petitioner to “show that the challenged state-court ruling rested on ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'”) (quoting Richter, 562 U.S. at 103).
Additionally, AEDPA foreclosed “‘using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.'” Parker v. Matthews, 567 U.S. 37, 38 (2012) (per curiam) (quoting Renico, 559 U.S. at 779). A state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion. Wood v. Allen, 558 U.S. 290, 301 (2010). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable - a substantially higher threshold.” Schriro, 550 U.S. at 473.
Federal habeas courts must presume the state courts' factual findings are correct unless a petitioner rebuts that presumption with “‘clear and convincing evidence.'” Id. at 473-74 (quoting § 2254(e)(1)). “A state court decision is based on a clearly erroneous factual determination if the state court failed to weigh all of the relevant evidence before making its factual findings.” Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015). Finally, “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.” Johnson v. Williams, 568 U.S. 289, 301 (2013).
B. Ineffective Assistance of Counsel
Petitioner contends he received the ineffective assistance of counsel due to Beckford's conflict of interest during pretrial proceedings. (Dkt. Nos. 1 at 5-6; Dkt. No. 18 at 1-9.) Respondent argues the Appellate Division reasonably rejected this claim on the merits when it affirmed the 440 court's decision. (Dkt. No. 11 at 14-21.) The Court agrees with Respondent.
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI. A defendant's Sixth Amendment right to counsel guarantees the right to conflict-free representation. See Wood v. Georgia, 450 U.S. 261, 271 (1981) (“Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest.”); accord United States v. Blau, 159 F.3d 68, 74 (2d Cir. 1998). If the petitioner shows that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer's performance,” then prejudice is presumed. Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980). “An ‘actual conflict,' for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.” Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002). “An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action.” United States v. Schwarz, 283 F.3d 76, 90-91 (2d Cir. 2002) (internal quotation marks and citations omitted).
To prove Beckford had an actual conflict of interest, Petitioner must demonstrate (1) that an “‘actual conflict of interest' existed, i.e., that ‘the attorney's and defendant's interests diverge[d] with respect to a material factual or legal issue or to a course of action'”; (2) that he suffered an “adverse effect” by “demonstrating the existence of some plausible alternative defense strategy not pursued by his counsel”; and (3) that “the alternative defense strategy was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.” Harris v. Smith, No. 04-CV-1268 (LEK/GJD), 2008 WL 3155200, at *6 (N.D.N.Y. Aug. 4, 2008) (citations omitted).
“In the absence of [an actual] conflict of interest, a defendant claiming ineffective assistance of counsel must demonstrate that the lawyer's representation ‘fell below an objective standard of reasonableness,'” and that “counsel's deficiency was ‘prejudicial' to the defense.” Eisemann v. Herbert, 401 F.3d 102, 107 (2d Cir. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 692 (1984)). A court need not decide both prongs of this test if there is an insufficient showing on either one. See Strickland, 466 U.S. at 697.
Moreover, when ineffective assistance of counsel claims are presented on collateral habeas review, the court assesses them subject to the strictures of AEDPA and must be “doubly deferential” in reviewing the state court's determination that counsel acted effectively. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation omitted). Thus, to prevail on an ineffective assistance of counsel claim on habeas review, Petitioner must show not only that Beckford's performance fell below the Sullivan or Strickland standard, but also that the state court's adjudication of those standards was itself unreasonable. See Richter, 562 U.S. at 103).
Here, Petitioner has failed to establish any of the necessary factors to show an actual conflict of interest because he has failed to show that Beckford's interests diverged from his own, that any alternative defense strategy existed, or that such a strategy was not undertaken because of the conflict. See Harris, 2008 WL 3155200, at *6; see also Dkt. No. 11 at 15-19.
Although Petitioner contends the conflict arose from the “simultaneous representation of counsel who was also representing the [ ] CI from the day of his first arraignment,” see Dkt. No. 18 at 2, the Appellate Division determined “no conflict existed until the first indictment was consolidated with the second indictment, from which the conflict of interest arose. The record reveals that the consolidation took place in May 2014, and that new counsel was assigned for defendant later that same month. Defendant makes no claim that he received ineffective assistance of counsel as a result of the conflict during this brief period, and, as his defense could not have been harmed by a conflict that did not exist, any information about the period before the consolidation would be irrelevant.” (Dkt. No. 13-1 at 567.) The state court's assessment was consistent with applicable law, represented a reasonable interpretation of the facts before it, and reasonably reached the conclusion that any alleged conflict did not adversely affect counsel's performance. See Sullivan, 446 U.S. at 349-50.
Moreover, as pointed out by Respondent, nothing in the record suggests that Beckford was aware of the CI's identity or that the CI was represented by another public defender during the February 4, 2014, suppression hearing. (See Dkt. No. 11 at 17.) Indeed, Beckford consistently used a male pronoun when referring to the female CI during her cross-examination of Detective Koonz. (Dkt. No. 13-2 at 23-33.)
Nor is there any evidence to suggest a divergence of interest between Beckford and Petitioner with respect to a material factual or legal issue or course of action. Petitioner's frustration with Beckford's handling of the February 4, 2014, suppression hearing or other pretrial matters does not amount to a lapse in representation due to a conflict of interest. A petitioner “cannot establish an actual conflict of interest merely by expressing dissatisfaction with [the] attorney's performance.” United States v. John Doe No. 1, 272 F.3d 116, 126 (2d Cir. 2001). Further, although Petitioner argued in state court Beckford was ineffective for failing to challenge the search warrant as defective (see Dkt. No. 13-1 at 92-93), he never claimed this alleged lapse was related to the conflict of interest, nor has he established any such connection. In any event, the Appellate Division concluded that, contrary to Petitioner's claim, the search warrant was not defective. (Dkt. No. 13-1 at 563.) “Representation is not rendered ineffective merely because counsel refuses to make meritless motions.” Rodriguez v. Griffin, No. 9:16-CV-1037, 2018 WL 6505808, at *26 (N.D.N.Y. Dec. 11, 2018) (citing United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (“[T]he failure to make a meritless argument does not rise to the level of ineffective assistance[.]”)).
For example, Petitioner takes issue that on May 30, 2014, Beckford “did not volunteer to correct the court when he started out saying that there was no informant in the first indictment, although she was present at the suppression hearing when trial court made his ruling from the bench that included the CI. The same CI that the court said did not exist in the first indictment[.]” (Dkt. No. 18 at 4.) Instead, Beckford only stated Petitioner would not waive the conflict, and new counsel was appointed. (See Dkt. No. 13-2 at 50-51.)
Therefore, applying the “doubly deferential standard of review that gives both the state court and the defense attorney the benefit of the doubt,” Cullen, 536 U.S. at 190, there is no basis to conclude the state court decision was contrary to, or an unreasonable application of, federal law, nor was it based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Accordingly, Petitioner is not entitled to habeas relief on this basis.
C. Prosecutorial Misconduct
Relatedly, Petitioner suggests the prosecutor committed misconduct by failing to timely disclose the conflict of interest. (See Dkt. No. 1 at 10-12.) The Court agrees with Respondent that Petitioner's prosecutorial misconduct claim, to the extent alleged, also fails because Petitioner has not shown any impropriety by the prosecutor or that the timing of the disclosure of the conflict denied his right to due process. (See Dkt. No. 11 at 19-21.)
With respect to a prosecutorial misconduct claim, federal habeas review is limited to the narrow issue of whether the alleged misconduct violated due process. Darden v. Wainright, 477 U.S. 168, 181 (1986). To constitute a due process violation, the prosecutorial misconduct must be “of sufficient significance to result in the denial of the defendant's right to a fair trial.” Greer v. Miller, 483 U.S. 756, 765 (1987) (citation omitted). “Under this standard, a petitioner must show there is a reasonable probability the error complained of affected the outcome of the trial- i.e., that absent the alleged impropriety, the verdict probably would have been different.” Griffin v. Coveny, No. 19-CV-1495, 2021 WL 3884217, at *12 (N.D.N.Y. Aug. 31, 2021). “Conclusory allegations of impropriety are insufficient to warrant habeas corpus relief.” Nealy v. Artest, No. 08-CV-3483 JFB, 2014 WL 726723, at *19 (E.D.N.Y. Feb. 25, 2014).
As set forth above, the 440 court found Petitioner “ha[d] not shown that the prosecutor was concealing this information so as to gain an unfair advantage.” (Dkt. No. 13-1 at 49.) That ruling was certainly not contrary to, or an unreasonable application of, federal law, nor was it based on an unreasonable determination of the facts in light of the evidence presented.
To the extent Petitioner suggests that he is entitled to habeas relief because the 440 court denied the motion without holding a hearing and, in turn, the Appellate Division determined the 440 court did not err in denying his motion without a hearing, such claim is meritless. (See Dkt. No. 18 at 2-9.) Initially, claims may not be raised for the first time in a traverse. See Parker v. Smith, 858 F.Supp.2d 229, 233 (N.D.N.Y. 2012) (refusing to address new arguments raised in the traverse that were not in the petition because a traverse or reply is not the proper pleading in which to raise additional grounds for habeas relief) (citations omitted); Simpson v. United States, No. 5:03-CV-691 (FJS), 2005 WL 3159657, at *5 (N.D.N.Y. Nov. 25, 2005) (declining to consider habeas claims raised for the first time in the petitioner's traverse). In any event, the claim is not cognizable on habeas review. See Ferrer v. Superintendent, No. 05-CV-1010, 2008 WL 2967633, at *11 (N.D.N.Y. Jul. 25, 2008) (“Federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings.”) (internal quotation omitted); see also Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011) (per curiam) (“[A]lleged errors in a post[-] conviction proceeding are not grounds for § 2254 review because federal law does not require states to provide a post-conviction mechanism for seeking relief.”); see, e.g., Millington v. Lee, No. 11 Civ. 499, 2015 WL 1402133, at *10 (S.D.N.Y. Aug. 14, 2014) (finding the petitioner's claim regarding the state's failure to hold an evidentiary hearing in his post-conviction proceeding was not cognizable in a federal habeas proceeding because alleged errors in postconviction proceedings are not grounds for § 2254 review); West v. Uhler, No. 12-cv-01611 (JKS), 2014 WL 3895235, at *7 (N.D.N.Y. Aug. 8, 2014) (same); see also Green v. Haggett, No. 13-CV-0016 (GLS), 2014 WL 3778587, at *8 (N.D.N.Y. July 31, 2014) (“Petitioner's claim is that there was a procedural defect in the conduct of a state post-conviction proceeding, because the trial court failed to hold a hearing, and federal habeas relief is not available for such alleged defects.”).
Here, Petitioner has not alleged, let alone proven, that the timing of the disclosure of the conflict had any adverse impact on him whatsoever. Petitioner does not contend that the timing resulted in any unfairness during the pre-trial proceedings or caused any unfairness at his trial.
Meany had nearly six months to prepare for the trial. See Smith v. Phillips, 455 U.S. 209, 219 (1982) (holding courts are to focus on “the fairness of the trial, not the culpability of the prosecutor”). Nor has Petitioner claimed any other adverse impact relating to the timing of the disclosure. As such, Petitioner's prosecutorial misconduct claim, if any, provides no basis for habeas relief.
D. Fourth Amendment Claims
Petitioner argues the search warrant and application were defective and evidence seized pursuant to the warrant should have been suppressed. (Dkt. No. 1 at 7, 8.) Specifically, Petitioner contends “[t]hat there are various defects in the search warrant executed against [him], including the fact that no probable cause supported it[,]” and his Fourth Amendment rights were violated “when the police exceeded the scope of the search warrant.” (Dkt. No. 18 at 1, 10-13.) Petitioner's claims are not cognizable on federal habeas review. (See Dkt. No. 11 at 21-23.)
It is well settled that “where 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.” Stone v. Powell, 428 U.S. 465, 481 (1976); accord Graham v. Costello, 299 F.3d 129, 133-34 (2d Cir. 2002). The state is required to provide the petitioner only with the “opportunity” to litigate a Fourth Amendment claim. McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69-70 (2d Cir. 1983). “Review of a Fourth Amendment claim is therefore available only if the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations or if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process.” Hirsh v. McArdle, 74 F.Supp.3d 525, 532-33 (N.D.N.Y. 2015) (quoting Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992)).
The Second Circuit has recognized that New York law provides adequate corrective procedures for redressing Fourth Amendment claims. See Capellan, 975 F.2d at 70, n.1 (citing a motion to suppress evidence, pursuant to CPL § 710.10 et seq., as a “facially adequate” and “approved” procedure for adjudicating alleged Fourth Amendment violations); see also Blake v. Martuscello, No. 00-CV-2570, 2013 WL 3456958, at *5 (E.D.N.Y. July 8, 2013) (citing CPL § 710.10 and finding that the Second Circuit has explicitly approved New York's procedure for litigating Fourth Amendment claims).
Here, Petitioner had a full and fair opportunity to litigate his Fourth Amendment claims in state court. As detailed above, Petitioner utilized New York's available procedures by moving to suppress evidence and challenging the search warrant. The Appellate Division reviewed Petitioner's claim that the search warrant was defective and rejected Petitioner's arguments against it. (Dkt. No. 13-1 at 563-64, 568.) The Court of Appeals subsequently denied Petitioner's application for leave to appeal. Id. at 574. Accordingly, New York State provided corrective procedures to address Petitioner's Fourth Amendment claims. See Ferron v. Goord, 255 F.Supp.2d 127, 131-32 (W.D.N.Y. 2003) (holding that petitioner's “various applications before the trial and appellate state courts challenging the search warrant clearly show that he was given an opportunity for a ‘full and fair' litigation of his Fourth Amendment claims.”).
Moreover, Petitioner has not asserted that he was “precluded from utilizing” the state's corrective procedures “by reason of an unconscionable breakdown in that process,” and, in light of his efforts to advance these claims, no basis for such an assertion can be discerned in the record. See Hirsh, 74 F.Supp.3d at 532. “[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; see also Williams v. Gonyea, No. 9:16-CV-0460 (JKS), 2017 WL 4990645, at *4 (N.D.N.Y. Oct. 31, 2017); see also Blackshear v. Donnelly, No. 9:03-CV-450 (LEK/VEB), 2008 WL 150414, at *11 (N.D.N.Y. Jan. 14, 2008) (the proper focus is on the existence and application of the state's corrective procedures and not on the “correctness of the state court's corrective procedures for adjudicating Fourth Amendment claims.”).
Petitioner appears to argue in his reply that his Fourth Amendment claims are not barred by Stone because “this case in an exception due the fact that there is a serious issue with the courts determination which establishes a violation of clearly established federal law[,]” and the Appellate Division's conclusion was “[a]n unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” (Dkt. No. 18 at 10, 12.) However, such arguments have explicitly been rejected by this Court. See Parker v. Ercole, 582 F.Supp.2d 273, 286-87 (N.D.N.Y. 2008) (“Petitioner argues that his Fourth Amendment claims should not be barred by Stone v. Powell because the Appellate Division's findings of fact and conclusions of law are not supported by the record, and were contrary to or an unreasonable application of clearly established Supreme Court precedent[.] Petitioner apparently seeks de novo review of the Appellate Division's factual findings. That relief is expressly forbidden by Stone.”).
Finally, Petitioner cannot circumvent Stone with the suggestion that his due process rights were violated during the suppression hearing. (See Dkt. No. 1 at 7; see also Dkt. No. 11 at 22 n.5.) See Gomez v. Miller, No. 9:19-CV-1571 (TJM), 2021 WL 5446979, at *10 (N.D.N.Y. Nov. 22, 2021) (citing Ferron, 255 F.Supp.2d at 133 (holding that the petitioner's attempt to “end-run around Stone's clearly established barrier to habeas review by ‘transmogrifying' his barred Fourth Amendment claim into a due process claim must fail”)).
Accordingly, Petitioner's Fourth Amendment claims provide no basis for habeas relief.
IV. CERTIFICATE OF APPEALABILITY
28 U.S.C. § 2253(c)(1) provides that “[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]” 28 U.S.C. § 2553(c)(1). A court may only issue a certificate of appealability “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2553(c)(2). Since Petitioner has failed to make such a showing with regard to any of his claims, the Court recommends that no certificate of appealability be issued. See Hohn v. United States, 524 U.S. 236, 239-40 (1998) (quotation omitted).
V. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Petitioner's pro se petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED; and it is further
RECOMMENDED that no certificate of appealability be issued; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation and Order on the parties in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 & 6(a).
If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).
IT IS SO ORDERED.