Capellan v. Riley

• Decision Date: 16 September 1992
• Docket Number: D,No. 1305,1305
• Citation: 975 F.2d 67
• Parties: Feliberto CAPELLAN, Petitioner-Appellee, v. Dean RILEY, Superintendent of the Fishkill Correctional Facility, Respondent-Appellant. ocket 92-2027.
• Court: U.S. Court of Appeals — Second Circuit

Page 67

975 F.2d 67

Feliberto CAPELLAN, Petitioner-Appellee, v. Dean RILEY, Superintendent of the Fishkill Correctional

Facility, Respondent-Appellant.

No. 1305, Docket 92-2027.

United States Court of Appeals, Second Circuit.

Argued March 30, 1992.

Decided Sept. 16, 1992.

James M. McGuire, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty. for New York County, Mark Dwyer, Asst. Dist. Atty., of counsel), for respondent-appellant.

Richard A. Joselson, New York City (Philip L. Weinstein, The Legal Aid Soc., of counsel), for petitioner-appellee.

Before: PIERCE, MAHONEY, Circuit Judges, and METZNER, District Judge. ^*

PIERCE, Circuit Judge:

The Superintendent of the Fishkill Correctional Facility appeals from a judgment of the United States District Court for the Southern District of New York, Charles H. Tenney, Judge, 779 F.Supp. 728, granting appellee's petition for a writ of habeas corpus on the ground that an unconscionable breakdown occurred in the New York State courts depriving petitioner of an opportunity for full and fair litigation of his fourth amendment claim. The judgment of the district court is vacated and the cause remanded with instructions to dismiss the petition.

BACKGROUND

On the morning of June 12, 1986, at approximately 8:15 a.m., police officers executed a search warrant for apartment 24B, at 531 West 211th Street, in Manhattan. Upon entering, the officers found Capellan alone in the apartment, wearing only a towel. During their search, the police found and seized over six pounds of cocaine and assorted narcotics paraphernalia. Capellan was arrested and charged in an indictment with two counts of criminal possession of a controlled substance in the first degree, N.Y.Penal Law § 220.21, and one count of criminally using drug paraphernalia in the second degree, N.Y.Penal Law § 220.50.

Thereafter, Capellan moved in the Supreme Court of the State of New York, New York County to suppress "all property and/or contraban [sic] seized from [his] person [or] possession ... obtained in violation of [his] constitutional rights." The People opposed the motion to suppress on the ground that Capellan lacked standing to contest the search of the apartment. Justice Budd Goodman denied Capellan's motion in a written decision dated October 8, 1986 on the ground that the movant had failed to make "any allegation that he had a protected privacy interest in the premises searched for the property seized." People v. Capellan, Indictment No. 4320/86 (Sup.Ct., New York County, Oct. 8, 1986) (order denying motion to suppress).

On October 22, 1986, Capellan, pursuant to a request by Justice Goodman, submitted an affidavit with respect to the standing issue. The affidavit stated

I wish to state and affirm the following facts:

a) I was arrested on June 12, 1986 at 531 West 211th Street, New York N.Y.

b) Althrough [sic] I was in the apartment at the time of arrest, I was neither the leaseholder nor a permanent resident of this apartment.

c) I had moved into the apartment with the intent to stay only a couple of days.

d) I had no prior knowledge of any activity taking place within this apartment nor did I have knowledge of any illegal substance contained within the apartment.

After reviewing the affidavit, Justice Goodman, this time ruling from the bench, determined that Capellan had no standing to contest the search because he had failed, yet again, to allege facts establishing that he had a reasonable expectation of privacy. On December 1, 1986, before Justice Harold Rothwax, Capellan pleaded guilty to one count of criminal possession of a controlled substance in the second degree, N.Y.Penal Law § 220.18, in full satisfaction of the indictment. On January 7, 1987, he was sentenced to an indeterminate term of incarceration of six years to life.

Capellan appealed to the Appellate Division, First Department, arguing that his pre-trial suppression motion papers had alleged sufficient facts "that the authorities had violated his reasonable expectation of In a brief written decision issued on March 15, 1990, the Appellate Division unanimously affirmed the lower court's judgment, reiterating that Capellan's "unelaborated statement that he temporarily 'moved into' the apartment where the search warrant was executed was insufficient to entitle [him] to a hearing on his motion to suppress the physical evidence...." People v. Capellan, 159 A.D.2d 324, 324, 552 N.Y.S.2d 601, 602 (1st Dep't 1990). On March 22, 1990, Capellan sought leave to appeal to the New York Court of Appeals.

                privacy."   He maintained that because the court applied an erroneous standing test, he had been denied the opportunity for fair litigation of his suppression claim, and he asked that the matter be remanded for an evidentiary hearing on his motion to suppress
                

However, while this application was pending, the United States Supreme Court ruled in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (April 18, 1990). In Olson, the Supreme Court held that the defendant, an overnight guest, had a reasonable expectation of privacy in the home in which he was staying and thus had fourth amendment standing to challenge a police intrusion into that home. 495 U.S. at 96-100. In light of this decision, on April 24, 1990, Capellan sought reargument in the Appellate Division, arguing in his motion papers that Olson raised a triable issue on the question of standing. He requested that the Appellate Division grant his motion to reargue and reconsider its determination that the denial of his suppression motion was proper. Several weeks later, on May 31, 1990, the Appellate Division unanimously denied the motion to reargue, stating that:

Defendant-appellant having moved for reargument of an order of this Court entered on March 15, 1990.

Now, upon reading and filing the papers with respect to the motion and due deliberation having been had thereon,

It is ordered that the motion be and the same hereby is denied.

Capellan renewed his application for permission to appeal to the New York Court of Appeals. On August 10, 1990, his application was denied. People v. Capellan, 76 N.Y.2d 853, 561 N.E.2d 893, 560 N.Y.S.2d 993 (1990) (Alexander, J.).

On February 8, 1991, pursuant to 28 U.S.C. § 2254, Capellan filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of New York. In his memorandum of law in support of his petition, Capellan contended that the allegations in his pre-trial suppression motion papers filed in the state court were sufficient under the standard set forth in Olson to mandate a hearing in that court on his motion to suppress. Capellan also argued that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), did not bar federal habeas corpus review of the state court decision because he had not had an opportunity for full and fair litigation of his claims due to an unconscionable breakdown in New York's corrective procedure for fourth amendment claims. Capellan hinged his "breakdown" argument on the Appellate Division's summary, post-Olson denial of reargument, which he contended did not take into account the Olson decision.

The district court agreed that an unconscionable breakdown had occurred. Capellan v. Riley, 779 F.Supp. 728, 733-34 (S.D.N.Y.1991). The court first determined that "any common sense reading" of Capellan's pre-trial affidavit established that he was an overnight guest and, thus, had standing, under Olson, to challenge the search of the apartment. Id. at 731-32. The court then determined that the Appellate Division's denial of the motion to reargue without setting forth any reasoning and its failure to mention Olson supported the conclusion that no "meaningful inquiry into the merits of Capellan's Fourth Amendment claim" had occurred. Id. at 733-34. Accordingly, Capellan's petition was granted. This appeal followed.

DISCUSSION

The threshold question presented herein is whether, in light of Stone v. Powell In Powell, the Supreme Court held 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." 428 U.S. at 481-82, 96 S.Ct. at 3046 (emphasis added).

we have the authority to review Capellan's fourth amendment claim.

In the wake of Powell, this Circuit has developed a litmus test to discern when a state prisoner has been denied an opportunity for full and fair litigation of his fourth amendment claims. See Gates v. Henderson, 568 F.2d 830 (2d Cir.1977) (en banc), cert. denied, 434 U.S. 1038, 98 S.Ct. 775, 54 L.Ed.2d 787 (1978). Gates noted that "all that the [Supreme] Court required was that the state [ ] provide[ ] the opportunity to the state prisoner for a full and fair litigation of the Fourth Amendment claim...." Id. at 839 (emphasis in original). We concluded that review of fourth amendment claims in habeas petitions would be undertaken in only one of two instances: (a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) 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. Id. at 840; see McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 70 (2d Cir.1983).

Capellan does not contend that New York failed to provide a corrective procedure to redress his alleged fourth amendment claim. ¹ Instead, he asserts that an unconscionable breakdown occurred in the existing process in violation of his constitutional rights. Although our decision in Gates did not fully expand on precisely when an unconscionable breakdown has occurred, citations within Gates to Frank v. Mangum, 237 U.S. 309...