JAMES K. SINGLETON, Jr., Senior District Judge.
Ahmeek Davis, Sr., a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Davis is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Five Points Correctional Facility. Respondent has answered, and Davis has not replied.
On June 21, 2008, Davis was charged with criminal possession of a weapon in the second degree and criminal possession of a controlled substance in the third and fourth degrees.
On direct appeal of his conviction, the Appellate Division summarized the facts underlying Davis's indictment:
Davis moved to suppress the cocaine recovered from his person as well as the eyewitness's identification. On November 26, 2008, a combined suppression hearing was held pursuant to Dunaway v. New York, 442 U.S. 200 (1979), to determine whether the police had probable cause to arrest Davis, and United States v. Wade, 388 U.S. 218 (1967), to determine the admissibility of the showup identification. At the conclusion of the hearing, the trial court denied Davis's suppression motions:
Davis, represented by counsel, appeared in court to plead guilty on January 5, 2009. The prosecution agreed to allow Davis to plead guilty to the first count of the indictment, criminal possession of a weapon in the second degree, in full satisfaction of the indictment with the understanding that the court would impose a sentence of 9½ years of imprisonment plus 3 years of post-release supervision. Davis would waive his right to appeal his sentence and all other issues, but would expressly retain the right to appeal the suppression hearing ruling.
After Davis was sworn, the court engaged in an extensive colloquy with Davis where he stated, inter alia, that he had sufficient time to speak with his attorney and family, was satisfied with his attorney, and was pleading guilty freely and voluntarily. He further acknowledged that he understood and agreed that, by pleading guilty, he was waiving his rights to remain silent, to have the prosecution prove his guilt beyond a reasonable doubt, to confront the prosecution's witnesses and to call witnesses on his own behalf, and to appeal all issues other than the suppression ruling. Davis then pled guilty to second-degree criminal possession of a weapon.
On February 23, 2009, Davis appeared with counsel for sentencing. The court adjudicated Davis a second felony offender based on a prior conviction of criminal sale of a controlled substance in November 2003. The trial judge agreed that, as part of the plea agreement, he would not sentence Davis as a persistent felony offender. The court then sentenced Davis to 9½ years of imprisonment and 5 years of post-release supervision. See N.Y. PENAL LAW § 70.45(2) ("The period of post-release supervision for a determinate sentence ... shall be five years.").
On July 14, 2009, Davis, proceeding pro se, moved to set aside the sentence pursuant to New York Criminal Procedure Law ("CPL") § 440.20, contending that the Department of Corrections and Community Supervision had administratively changed his term of post-release supervision from 3 years, as discussed during the plea agreement, to 5 years. According to Respondent, the motion was denied on November 19, 2009, and Davis did not seek leave to appeal the denial of the motion.
Davis, again represented by counsel, then directly appealed his conviction. He argued that: (1) the prosecution failed to establish probable cause for his arrest; (2) evidence obtained as a result of his unlawful arrest should have been suppressed; (3) the prosecution failed to establish an independent source for the civilian witness's prospective in-court identification; (4) the prosecution was not entitled to a rehearing of the suppression issues; and (5) the court erred in sentencing Davis to a 5-year period of post-release supervision where the plea agreement called for a period of only 3 years.
The Appellate Division affirmed the judgment in a reasoned opinion. The appellate court determined that the police had probable cause to arrest Davis and thus the hearing court properly denied his motion to suppress. With respect to Davis's sentencing claim, the court stated, "While the term of postrelease supervision imposed by County Court did not `conform to the term indicated at the plea proceeding,' [Davis] did not object to the sentence as imposed as has not preserved this claim by seeking appropriate relief before the sentencing court." It further concluded, "[Davis's] status as a second felony offender required that a five-year term of postrelease supervision be imposed as part of his sentence." Davis sought leave to appeal the denial to the New York Court of Appeals on the ground that the police did not have probable cause to arrest him. The Court of Appeals summarily denied the request on February 25, 2011. Davis timely filed a Petition for a Writ of Habeas Corpus to this Court on May 18, 2012.
In his pro se Petition, Davis raises three grounds for habeas relief. First, Davis argues that the prosecution failed to establish probable cause for his arrest. Davis likewise contends that the civilian witness's identification, the showup identification by a police officer, and drugs found in his possession should have been suppressed because they were obtained as a result of the unlawful arrest. Finally, Davis argues that the trial court erred in sentencing him to a 5-year period of post-release supervision when he was promised through his plea agreement that the period would be limited to 3 years.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," § 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that contradicts controlling Supreme Court authority or "if the state court confronts a set of facts that are materially indistinguishable from a decision" of the Supreme Court, but nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
To the extent that the petition raises issues of the proper application of state law, they are beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (a federal habeas court cannot reexamine a state court's interpretation and application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the "last reasoned decision" by the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Davis has not replied to Respondent's answer. The relevant statute provides that "[t]he allegations of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true." 28 U.S.C. § 2248; see also Carlson v. Landon, 342 U.S. 524, 530 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict the allegations of the return, the court must accept those allegations as true. United States ex rel. Catalano v. Shaughnessy, 197 F.2d 65, 66-67 (2d Cir. 1952) (per curiam).
In claim 1, Davis contends that the prosecution failed to establish probable cause for his arrest because "the only witnesses at the sup[p]ression hearing were police officers who relied on radio communication from the dispatcher." He argues that "[t]he dispatcher did not testify at the suppression hearing and there was no other evidence put forth on the source of the information that prompted the radio call." Davis similarly argues in claim 2 that certain evidence should have been suppressed because it was obtained as a result of the unlawful arrest. He recognizes that claim 2 is "[p]redicated on the finding that the [P]eople failed to establish probable cause" and thus relief on claim 2 requires this Court to find in his favor on claim 1.
However, both of Davis's claims are waived by the entry of his guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Moreover, neither claim is cognizable before this Court on federal habeas review because these arguments are precluded by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976). Under Stone, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim," federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal search or seizure was introduced at trial. Id. at 482. The Second Circuit has made clear that all Stone requires is that the State provide a petitioner the opportunity to litigate his Fourth Amendment claim. See McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69-70 (2d Cir. 1983).
In order to receive habeas review of his Fourth Amendment claim, a petitioner must demonstrate either that the State failed to provide any "corrective procedures" by which Fourth Amendment claims could be litigated, or that the State had such procedures in place but that the petitioner was unable to avail himself of those procedures "because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). 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," and thus is insufficient to give this Court authority to review Fourth Amendment claims. Id. at 72. That New York has in place such procedures is well-settled, see id. at 70 & n.1, and Davis has not asserted the existence of an unconscionable breakdown of that process in this case. Accordingly, Davis is not entitled to relief on either of his Fourth Amendment claims.
Davis additionally argues that the trial court erred in sentencing him to 5 years of post-release supervision when the plea agreement called for only 3 years. Pet. at 5. Davis contends that "[t]he court denied [him] his right to due process and equal protection under the law when it failed to renegotiate [Davis's] plea upon discovery that the original plea agreement did not comply with the statute requiring a mandatory term of five years post-release supervision." Id.
As Respondent notes, Davis did not raise this claim fully to the state courts. This Court may not consider claims that have not been fairly presented to the state courts. 28 U.S.C. § 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). To be deemed exhausted, a claim must have been presented to the highest state court that may consider the issue presented. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to appeal. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). While Davis raised this claim to the Appellate Division, he did not raise it when he applied to the Court of Appeals for leave to appeal the Appellate Division's denial.
Respondent further contends that the claim may be deemed exhausted but procedurally barred because he has no state-court forum in which to raise the claim. See Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001). Davis cannot now raise this claim on direct appeal because he has already filed the direct appeal and leave application to which he is entitled. See Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). Respondent argues that Davis cannot bring this claim on a post-conviction motion either because he raised the claim on direct appeal, and the Appellate Division determined the claim. See N.Y. CRIM. PROC. LAW § 440.20(2) (a "court must deny such a motion when the ground or issue raised thereupon was previously determined on the merits upon an appeal from the judgment or sentence, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue").
However, Davis argued in his counseled brief on appeal only that "[t]he Judge below clearly made a mistake in sentencing [Davis] to five years post release supervision when the plea agreement called for three years post release supervision." Ex. B at 16. Construing his pro se Petition liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), it appears that the gravamen of Davis's federal Petition is that his plea was not voluntary because he was not adequately informed of the consequences of his plea. As the Appellate Division recognized, the 5-year sentence of post-release supervision was mandatory under state law. The thrust of Davis's problem therefore is not that the term of supervised release is part of his sentence but rather that he was never properly advised that he would be subject to 5, rather than 3, years of post-release supervision.
When a court takes a plea of guilty from a defendant on the promise of a determinate sentence, the court is required to also advise the defendant of the applicable post-release supervision period; under New York law, failure to do so entitles the defendant to withdraw the plea of guilty. People v. Louree, 869 N.E.2d 18, 21 (N.Y. 2007); People v. Catu, 825 N.E.2d 1081, 1082-83 (N.Y. 2005). Under New York law, that is a matter that can be raised in the trial court at any time by a motion pursuant to CPL § 440.10. See People v. Seaberg, 74 N.Y.2d 1, 10 (N.Y. 1989) ("a defendant always retains the right to challenge the legality of [his] sentence or the voluntariness of his plea"). Although Davis brought a CPL § 440.20 motion to set aside the set sentence on a somewhat similar premise, Davis has not raised a voluntariness of plea claim on a CPL § 440.10 motion, and it therefore appears that this avenue of relief is still available to him. Although this Court has the authority to stay the petition to allow Davis to return to state court to satisfy the exhaustion requirement as to that remaining claim, see Zarvela v. Artuz, 254 F.3d 374, 380-83 (2d Cir. 2001), Davis has not asked this Court to stay its judgment, and the Court will accordingly not address that option.
The Second Circuit has held that "the only remedies available for breach of a plea agreement are enforcement of the agreement or affording the defendant an opportunity to withdraw the plea." 1-95-CV-553-P1 v. 1-95-CV-443-D1, 75 F.3d 135, 136 (2d Cir. 1996). Where the sentence called for by the plea agreement is unlawful, however, courts have generally held that the only available remedy is rescission of the agreement and withdrawal of the plea. See, e.g., United States v. Greatwalker, 285 F.3d 727, 729 (8th Cir. 2002) (even when a defendant, prosecutor, and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law, and any plea to such illegal sentence is void). Although the record indicates that Davis bargained for a term of 3 years of post-release supervision, such a sentence would have been illegal under New York law, and a federal court would have no authority to specifically enforce such a bargain. It therefore appears that for Davis to achieve remedy for any violation of his rights, he must first present his claim to the state courts through a CPL § 440.10 motion seeking permission to withdraw his plea of guilty and exercise his right to a trial by jury.
Davis is not entitled to relief on any ground raised in his Petition.
The Clerk of the Court is to enter judgment accordingly.
