Brown v. Donnelly

• Decision Date: 13 May 2005
• Docket Number: No. 02-CV-6286.,02-CV-6286.
• Citation: 371 F.Supp.2d 332
• Parties: Paul BROWN, Petitioner, v. Edward DONNELLY, Respondent.
• Court: U.S. District Court — Western District of New York

371 F.Supp.2d 332

Paul BROWN, Petitioner, v. Edward DONNELLY, Respondent.

No. 02-CV-6286.

United States District Court, W.D. New York.

May 13, 2005.

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Paul Brown, Alden, NY, pro se.

Stephen K. Tills, Orchard Park, NY, for Petitioner.

Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Respondent.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Paul Brown ("Brown") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of criminal possession of a controlled substance in the third degree and one count of criminal possession of a controlled substance in the seventh degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

FACTUAL BACKGROUND

On the night of April 1, 1997, Officer Salway of the Rochester Police Department approached a parked car on Merrimac Street occupied by two individuals. While standing outside the car, Officer Salway observed the female in the front passenger's seat attempting to hide ziplock bags. These bags, according to Officer Salway, appeared to contain a cocaine-like residue. Upon questioning, Carter Gupton ("Gupton"), the driver of the car, stated that he had purchased the bags of cocaine earlier that evening from a house in the general vicinity. While riding in the police car with Officer Adami, Gupton pointed out the downstairs apartment at 51 Sullivan Street as the location where he had purchased the cocaine; it was later determined to be the residence of petitioner Brown.

When Officers Salway and Adami first approached Brown's apartment shortly before 10 p.m., they decided not to investigate further because it appeared that no one was home. At about 1:15 a.m., the officers returned to the apartment and observed activity within. Officer Salway knocked on the front door. Officer Adami stood next to Salway, and two other officers guarded the perimeter. Brown opened the door and, according to Officer Adami, appeared surprised to see uniformed police officers on his porch. As Brown stood in the doorway, the officers looked inside and were able to see plastic baggies containing a white, rock-like substance on the kitchen counter about ten to twelve feet behind Brown. The only other person in the apartment was Brown's girlfriend, Sharnette Holoman, who was sitting in a chair near the kitchen.

Fearful that Brown or his girlfriend would attempt to dispose of the cocaine, Officer Adami entered the house and seized the plastic baggies that were lying on the counter. The officer also seized $297 in cash on the counter next to the cocaine and a handgun found in an adjacent room. Brown then was placed under arrest by Officer Salway.

Following his indictment on two counts of third degree criminal possession of a controlled substance and one count of fourth degree criminal possession of a weapon, Brown moved to suppress all of the physical evidence as the product of an unlawful entry and an unlawful search of his home. After visiting the crime scene in order to determine whether it was possible for the police to have seen the drugs in "plain view" while standing on the front porch, the trial judge denied the suppression motion to the extent that it sought to preclude the use of the drugs and the money at trial. The court decided to suppress the handgun, finding that the prosecution failed to establish that a search of the room in which the gun was found was necessary to insure the officers' safety. The weapons charge accordingly was withdrawn.

Brown's jury trial commenced on September 16, 1997, in Monroe County Court. The jury acquitted him of the first count of criminal possession of a controlled substance (N.Y. Penal Law § 220.16(1)) which alleged the possession of a narcotic drug with intent to sell. Brown was convicted of count two of the indictment alleging a violation of N.Y. Penal Law § 220.16(2) (possession of one or more preparations, compounds, mixtures or substances containing a narcotic drug and weighing one-half ounce or more). Brown also was convicted of seventh degree criminal possession of a controlled substance, a lesser included offense of count one. The court sentenced Brown to 8 1/3 to 25 years of incarceration in state prison.

PROCEDURAL HISTORY

Brown appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Three of the four justices on the panel voted to affirm the conviction. People v. Brown, 274 A.D.2d 941, 710 N.Y.S.2d 504 (4^th Dept.2000). Although the New York Court of Appeals granted leave to appeal, it ultimately affirmed the conviction. People v. Brown, 95 N.Y.2d 942, 722 N.Y.S.2d 464, 745 N.E.2d 383 (2000).

Brown filed a petition for a writ of habeas corpus (Docket # 1) in this Court on May 6, 2002, alleging that (1) the warrantless search of his residence was unconstitutional; (2) the trial court erroneously charged the "drug factory" presumption; (3) inadmissible hearsay was introduced at this trial; and (4) his sentence was harsh and excessive. Respondent answered the petition (Docket # 6) on September 13, 2002. The Court directed Brown to submit further information concerning the timeliness of his petition; he did so on June 19, 2002. See Docket # 4. In that pleading, Brown explained that although the one-year statute of limitations under 28 U.S.C. § 2244(d)(1) was scheduled to expire on March 16, 2002, he had collaterally attacked the effectiveness of his appellate counsel in an application for a writ of error coram nobis filed on February 28, 2002. That application remained pending until April 26, 2002, when it was denied by the Appellate Division, Fourth Department, of New York State Supreme Court. Thus, the statute of limitations was tolled during the pendency of that motion, see 28 U.S.C. § 2244(d)(2), making Brown's petition timely.

In a letter to the Court dated September 26, 2002, Brown stated that he wished to exhaust claims stemming from alleged "violations consist[ing] of the complete failure of trial counsel to move to suppress the contraband by explicitly challenging the police return and intrusion without a warrant, over three hours later, of petitioner[']s home, in absence of any exigent circumstances." See Docket # 9. On November 19, 2002, the Court granted Brown's motion for a stay so that he could return to State court to exhaust his remedies with regard to several claims of ineffective assistance of trial counsel. A review of the record below indicates that trial counsel did move to suppress the seized contraband on the basis that exigent circumstances did not exist to justify the warrantless entry, search, and seizure. In any event, when Brown returned to state court, he only challenged the effectiveness of his appellate counsel in an application for a writ of error coram nobis. Brown did not move to vacate his conviction on the ground that trial counsel was ineffective.

On April 8, 2004, Brown submitted an untitled pleading on (Docket # 16) which the Court has deemed an amended petition. As additional claims for habeas relief, Brown asserts that he did not receive the effective assistance of appellate counsel and that he was subjected to a search and seizure in violation of the Fourth Amendment. See Docket # 16. Respondent states that it does not raise the failure to exhaust with respect to any of Brown's claims. After reviewing Brown's pleadings, the Court finds that his claims have been fully exhausted and are properly before the Court on habeas review. For the reasons set forth below, Brown's habeas petition is denied.

DISCUSSION

Merits of the Petition

I. Fourth Amendment Claim

Brown contends that the trial court erred in ruling that the cocaine and money seized from his residence were admissible. He asserts that the police illegally entered his home without a warrant because there was no probable cause to search his residence. He also contends that the "plain view" exception was inapplicable under the circumstances.¹ On direct appeal, a three-fourths majority of the Appellate Division rejected this claim, holding that the police had probable cause to believe that defendant had committed a crime in their presence and that contraband was present in his apartment. The court further found that although the prosecution "did not explicitly elicit testimony on the issue of exigency" at the suppression hearing, it was "well known" that individuals who engage in drug trafficking "will often attempt to dispose of the narcotics or escape." People v. Brown, 274 A.D.2d at 941, 710 N.Y.S.2d 504 (citing People v. Clements, 37 N.Y.2d 675, 684-685, 376 N.Y.S.2d 480, 339 N.E.2d 170 (1975); People v. Seaberry, 138 A.D.2d 422, 422-423, 525 N.Y.S.2d 704 (2d Dept.), lv. denied, 72 N.Y.2d 866, 532 N.Y.S.2d 516, 528 N.E.2d 906 (1988)). Thus, the majority found, the record "adequately establishe[d] that exigent circumstances justified the warrantless entry by the police." Id.

One justice of the Appellate Division dissented, faulting the majority for focusing solely the plain view exception when other issues were in dispute-namely, that the prosecution failed to present proof on the issue of exigent circumstances, make an effort to show that obtaining a warrant would not have been reasonable, or demonstrate that defendant was a flight-risk. The dissenting justice argued that, by inferring the presence of exigent circumstances, the majority improperly relieved the prosecution of its burden of proof. People v. Brown, 274 A.D.2d at 943, 710 N.Y.S.2d 504 (Scudder, J.) (dissenting opinion). The New York Court of Appeals granted leave to appeal but ultimately affirmed the conviction. People v. Brown, 95 N.Y.2d 942, 722 N.Y.S.2d 464, 745 N.E.2d 383 (2000).

In general, State court defendants are barred from obtaining habeas relief based upon ...