Gandarilla v. Artuz

Decision Date26 February 2003
Docket NumberDocket No. 99-2423.
PartiesDennis GANDARILLA, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

(Perry S. Reich, Schapiro & Reich, Lindenhurst, New York, NY, on the brief), for Petitioner-Appellant.

Amy Appelbaum, Assistant District Attorney, Kings County, Brooklyn, New York (Charles J. Hynes, District Attorney for Kings County, Leonard Joblove, Victor Barall, Assistant District Attorneys, Brooklyn, New York, Richard A. Brown, District Attorney for Queens County, John M. Castellano, Assistant District Attorney, Kew Gardens, New York, Eliot Spitzer, Attorney General for the State of New York, Valerie Singleton, Assistant Attorney General, New York, New York, on the brief), for Respondent-Appellee.

Before: KEARSE, STRAUB, and SACK, Circuit Judges.

KEARSE, Circuit Judge.

Petitioner Dennis Gandarilla, a New York State ("State") prisoner, seeks a certificate of appealability to permit him to appeal from a judgment entered in the United States District Court for the Eastern District of New York denying his petition under 28 U.S.C. § 2254 for a writ of habeas corpus vacating his conviction on the grounds, inter alia, that he was denied effective assistance of counsel and was denied a fair opportunity to challenge a search warrant. The district court denied the petition, adopting the reasons given by the State's Appellate Division in affirming Gandarilla's conviction and the reasons given by the State in opposing the petition. For the reasons that follow, we remand to the district court for identification of the ground or grounds on which the petition was denied.

Gandarilla was convicted in State Supreme Court, following his plea of guilty, of criminal possession of a controlled substance, criminal possession of a weapon, and endangering the welfare of a child. After being sentenced, he appealed to the Appellate Division of the Supreme Court, contending that he had not knowingly and voluntarily waived his right to appeal and that a search warrant pursuant to which his home was searched had been issued on the basis of an affidavit that did not establish the reliability of the informant who provided information or establish probable cause. The Appellate Division affirmed the conviction, stating as follows:

The defendant's claim with respect to the propriety of the search warrant application is unpreserved for appellate review and, in any event, without merit (cf., People v. Brown, 40 N.Y.2d 183, 386 N.Y.S.2d 359, 352 N.E.2d 545; People v. Vanderpool, 217 A.D.2d 716, 629 People v. Castillo, 176 A.D.2d 609, 575 N.Y.S.2d 49, affd 80 N.Y.2d 578, 584, 592 N.Y.S.2d 945, 607 N.E.2d 1050).

People v. Gandarilla, 244 A.D.2d 500, 500-01, 665 N.Y.S.2d 905, 905-06 (2d Dep't 1997), lv. denied, 91 N.Y.2d 892, 669 N.Y.S.2d 6, 691 N.E.2d 1032 (1998).

Gandarilla filed his present petition for habeas corpus in the district court, asserting claims in addition to those he had raised on direct appeal to the Appellate Division. The new claims asserted that Gandarilla had been sentenced without adequate consideration of his cooperation and his past record; that he had been denied effective assistance of counsel at a suppression hearing and when he pleaded guilty; and that at the suppression hearing he had not been allowed to confront his accuser. The State opposed the petition, arguing, first, that Gandarilla "never presented many of the claims he raises in his current petition to the state courts; therefore, his petition contains unexhausted claims and should be dismissed." (State's Memorandum of Law ("State's Memorandum") at 2.)

In state court, defendant never claimed that he did not receive a full or fair suppression hearing, that he did not receive effective assistance of counsel at the plea because counsel failed to challenge the validity of the plea, nor did he ever claim that his sentence was excessive. The presence of these claims renders defendant's application a petition containing exhausted and unexhausted claims; it should therefore be dismissed.

Id.

The State also argued, inter alia, that "some of defendant's unexhausted claims may be deemed exhausted because a state forum no longer exists to entertain them on the merits and the state would reject them as procedurally barred." (Id. at 2.) Seemingly disputing the indication in Gandarilla's petition that a suppression hearing had been held, the State's Memorandum asserted that Gandarilla had never moved to quash the search warrant or to "make a motion entitling him ... to a hearing." (Id. at 3.) The State's Memorandum argued that Gandarilla could not now make any claims with respect to such a hearing because he had not made a factual record and thus "cannot attack his conviction collaterally" (id.); but the State also stated that, under the pertinent section of the New York Criminal Procedure Law, "[t]his bar to review is discretionary, not mandatory" (id. n. 1).

In addition, the State argued that Gandarilla's challenge to his sentence raised no federal constitutional question; that his ineffective-assistance-of-counsel claim lacked merit because there was no viable basis on which his attorney could have challenged the search warrant; and that, under Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the existence of probable cause for the search warrant could not be litigated in a federal habeas proceeding.

In an order dated June 14, 1999, the district court rejected Gandarilla's claims, stating:

The petition for a writ of habeas corpus is denied for the reasons stated in the opinion of the Appellate Division, People v. Gandarilla, 244 A.D.2d 500, 665 N.Y.S.2d 905 (2d Dep't 1997), and the memorandum of law filed by the District Attorney.

District Court Order dated June 14, 1999.

The district court refused to issue a certificate of appealability, and Gandarilla has applied for such a certificate in this Court. For the reasons that follow, we remand to the district court for clarification because the record before us does not disclose the basis on which the district court denied Gandarilla's petition.

Although the district court adopted the opinion of the Appellate Division affirming Gandarilla's conviction, that opinion did not mention any claim except the challenge to the propriety of the search warrant. Thus, the Appellate Division's opinion did not deal with most of the claims asserted in the habeas petition.

Further, although the district court also adopted the contentions proffered by the State in opposition to Gandarilla's petition, the State's foremost contention was that the petition contained both exhausted and unexhausted claims and should be dismissed pursuant to Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). And while the State argued that "some" of the exhausted claims were procedurally barred (State's Memorandum at 2 (emphasis added)), and hence could be deemed exhausted, it did not argue that all of the unexhausted claims could be deemed exhausted. Indeed, even as to the unexhausted claim of lack of an adequate hearing, which the State contended Gandarilla "cannot" now assert in State court because "[n]o avenue of relief now remains" (id. at 3), the State acknowledged that the provision on which it relied for that proposition states only that collateral review "may" be denied, N.Y.Crim. Proc. L. § 440.10(3)(a), and hence the procedural bar is "discretionary, not mandatory" (State's Memorandum at 3 n. 1). The State did not suggest that that discretion in fact had been exercised to deny Gandarilla review. Thus, it appears that the State correctly argued that Gandarilla's petition contained claims that were unexhausted; but it is unclear whether the district court dismissed Gandarilla's petition on this ground, given the court's adoption of the State's entire memorandum.

As discussed in our opinion filed today in Miranda v. Bennett, 322 F.3d 171 (2d Cir.2003), in many cases a reviewing court is impeded in performing its duties if the district court has not identified the ground or grounds on which it has decided a case. Here, for example, there appears to be a factual question as to whether Gandarilla had a hearing on his challenge to the existence of probable cause; the State's Memorandum stated that he made no request for a hearing, but it stopped short of saying that no hearing was held; the petition complained of a denial of the right of confrontation "[a]t the hearing." Although the merits of a Fourth Amendment challenge are not reviewable in a federal habeas proceeding if a defendant has had a fair opportunity to litigate that question in State court, see Stone v. Powell, 428...

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