Carey v. Superintendent, Wash. Corr. Facility
| Decision Date | 30 January 2023 |
| Docket Number | 6:20-CV-06477 EAW |
| Parties | DAVID CAREY, Petitioner, v. SUPERINTENDENT, WASHINGTON CORRECTIONAL FACILITY, Respondent. |
| Court | U.S. District Court — Western District of New York |
DECISION AND ORDER
David Carey (“Petitioner”) has filed a counseled petition for a writ of habeas corpus pursuant to 28 U.S.C § 2254, alleging that he is being unconstitutionally detained by the Superintendent of Washington Correctional Facility (“Respondent”). (Dkt. 1). Petitioner is in custody pursuant to a judgment entered against him on March 2, 2016, in the Erie County Court, located in Buffalo, New York. (Id. at 1).[1] Following a jury verdict convicting him of second-degree criminal possession of a controlled substance, Petitioner was sentenced to a determinate term of 12 years to be followed by five years of post-release supervision. (Id.). He is currently serving that sentence.
In his timely filed petition, Petitioner contends that his custody is unconstitutional because: (1) appellate counsel was ineffective in failing to argue that the adverse suppression ruling on the issue of standing deprived Petitioner of the effective assistance of counsel at a critical stage (Dkt. 1 at 5 (Ground One)); (2) the missing witness charge was erroneous as a matter of state law, shifted the burden of proof, and violated Petitioner's due process right to a fair trial (Dkt. 1 at 7 (Ground Two)); (3) appellate counsel was deficient for failing to argue that defense counsel was ineffective for (i) not objecting to prejudicial references to Petitioner's supposed gang affiliation, and (ii) not requesting a hearing to challenge the voluntariness of his alleged statements to police (Dkt. 1 at 8 (Ground Three)); and (4) defense counsel was ineffective in failing to move to dismiss the indictment on state statutory speedy trial grounds and failing to challenge the chain of custody of the drugs (Dkt. 1 at 10 (Ground Four)).
Respondent responded to the petition (Dkt. 4 (Response), Dkt. 5 (Memorandum of Law)) and manually filed the state court records and transcripts. In reply, Petitioner filed a Declaration in Support and Traverse. (Dkt. 6). For the reasons discussed below, the Court finds that Petitioner has not shown he is entitled to habeas relief. Therefore, the Court denies the request for a writ of habeas corpus and dismisses the petition.
Petitioner was charged under Erie County Indictment No. 00963-2013 with one count of Criminal Possession of a Controlled Substance in the Second Degree (New York Penal Law § 220.18(1)). The indictment, see Respondent's Exhibit (“Resp't Ex.”) A,[2] alleged that on May 22, 2013, at 448 Amherst Street in the City of Buffalo, Petitioner knowingly possessed a quantity of cocaine having an aggregate weight of four ounces or more.
Retained counsel Jeremy Schwartz, Esq. moved to suppress the cocaine as the product of an unreasonable search and seizure. Erie County Court Judge Kenneth F. Case (the “trial court”) conducted a hearing on March 20, 2014. Parole Officer Christopher Mack (“P.O. Mack”), Petitioner's parole officer, testified for the prosecution; the defense presented no witnesses. After receiving briefing from the parties, the trial court issued a written decision and order denying the motion to suppress. .
Finding that the record lacked any compelling evidence to show Petitioner was an overnight guest at 448 Amherst Street, the trial court rejected his standing argument. (Id. at 5-6). The trial court further agreed with the prosecution that, as an absconder from parole, Petitioner essentially was an escaped prisoner and, as such, lacked standing to challenge the search and seizure. (Id. at 6-7). The trial court held that even assuming Petitioner had established his status as an overnight guest, he did not demonstrate the search was unreasonable. Id. at 7. Rather, the trial court found, the parole officers lawfully entered 448 Amherst because they had a warrant to arrest Petitioner for having violated several of his parole conditions. Id. The trial court noted that, as part of his parole agreement, Petitioner authorized his parole officer to search and inspect his property and residence. Id. Thus, even if he had not violated his parole terms and absconded, the parole officers still would have been able to search 448 Amherst Street, if that was in fact Petitioner's residence. Id. The trial court further found that the search was “rationally and reasonably related” to the parole officers' performance of their duties to detect and prevent parole violations. Id. Thus, whether or not Petitioner was an overnight guest at 448 Amherst Street, the cocaine was not seized in violation of his Fourth Amendment rights. Id. at 8.
Landlord Randy Fortner testified that he rented the unfurnished rear apartment at 448 Amherst Street in Buffalo, New York, to a woman named Tijuana Evans (“Evans”) on May 15, 2013. (T: 457-58).[4] Prior to finalizing the lease agreement, Fortner and Evans did a walk-through of the apartment, which was empty. (T: 458). Fortner provided Evans with one copy of the key to the apartment's only entry door. (Id.).
In May of 2013, P.O. Mack and his partner, P.O. Higgins were looking for Petitioner, who was P.O. Mack's parolee. P.O. Mack had a warrant for Petitioner's arrest because he had violated his parole conditions by, among other things, moving all his belongings out of his approved residence at 195 Colvin Street without prior approval. (T: 465-67, 474, 528).[5]At about 7:50 a.m. on May 22, 2013, P.O. Mack and P.O. Higgins went to 448 Amherst Street. (T: 468-69, 691-92). The parole officers had verified through a utilities check that the utilities at 448 Amherst were in Evans's name. (T: 696-97). P.O. Mack testified that Evans was a known associate of Petitioner's. (T: 474-75, 522).
A short while after they arrived at 448 Amherst, P.O. Mack and P.O. Higgins observed a white Jeep pull up in front of the building. (T: 469-70, 692). A woman whom P.O. Mack believed to be Evans got out and went to the rear apartment's entry door (T: 470), located on the side of the building (T: 458). Evans was not carrying anything. (T: 470-71). She first knocked on the door and then tried to look through a window. (T: 470). She did this several times before someone let her in. (T: 471, 497-98, 692, 699). P.O. Mack and P.O. Higgins were unable to see who opened the door for her. (T: 498).
By around 8:40 a.m., officers from the Buffalo Police Department (“BPD”) had arrived in response to P.O. Mack's request for assistance. (T: 471). P.O. Mack, P.O. Higgins, and BPD Officer Thomas Cino (“Officer Cino”) went to the side door and knocked. (T: 472). There was no response so P.O. Mack and the other officers continued knocking for some time. (T: 472-73, 700-01, 720). Eventually, P.O. Mack lifted the screen off one of the windows they had seen the woman looking through earlier; at that moment, the woman answered the door. (T: 473-74, 500, 539). P.O. Mack confirmed to himself that the woman was Evans, whom he had met previously during a home visit for Petitioner at 195 Colvin. (T: 474-75, 522).
Upon opening the door, Evans asked why the officers were there; P.O. Mack responded by asking her where “David Carey” or “Mike”, Petitioner's nickname, was. (T: 477). P.O. Higgins testified that at one point Evans attempted to shut the door on them so he put his hand on the door. (T: 701). After some back and forth with the officers, Evans motioned that Petitioner was inside by pointing upwards towards the second floor. (T: 477, 701, 720). However, Evans would not move so P.O. Mack pulled her out of the doorway and positioned her to the side of the building. (T: 477). P.O. Higgins and Officer Cino went into the apartment first and proceeded upstairs; P.O. Mack followed them. (T: 477, 721).
Meanwhile, BPD Officer Joseph Donovan (“Officer Donovan”), who was stationed outside 448 Amherst, watched a black male remove the window screen from a second-story window, climb out of the window, hang from the sill, and drop 15 or 20 feet down to the concrete pad below. (T: 565, 567-68). The man was wearing only a t-shirt, underwear or shorts, and socks. (T: 568). Officer Donovan held the man at gunpoint and his partner arrested him. (T: 568-69). P.O. Mack confirmed that the suspect in custody was Petitioner and returned inside the apartment. (T: 478).
Officer Donovan and his partner transported Petitioner to the emergency room because he was complaining of uncontrollable pain in his feet. (T: 569). While Petitioner was receiving treatment, Petitioner “said [‘]I am going to take the rap for all of this,['] he doesn't want Tijuana to get locked up.” (T: 574). Petitioner and Officer Donovan were not having a conversation at the time, and the statement was not in response to anything that Officer Donovan or his partner had said. (T: 574-75). Petitioner was not handcuffed. (T: 574). Officer Donovan testified that he never mentioned to Petitioner whether anything had been recovered from 448 Amherst, and while they were still at 448 Amherst, Petitioner was not shown anything by the officers. (T: 575).
In the meantime, back at 448 Amherst, P.O. Higgins and Officer Cino were conducting a protective security sweep. (T: 478 703-04). The officers found no other individuals upstairs, which was devoid of furniture, female clothing, or female toiletries. (T: 479-80, 533, 722). In the living room on the first floor, P.O. Higgins and Officer Cino observed a bed and several articles of men's clothing and pairs of men's shoes. ...
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