GARY L. SHARPE, United States Magistrate Judge.
INTRODUCTION
Petitioner, James Carter, presently incarcerated at Sing Sing Correctional Facility, brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 complaining of the judgment rendered against him by the New York State County Court of Albany. In the judgment, Petitioner was sentenced to an aggregate indeterminate term of twenty-five years to life imprisonment following his conviction for first degree criminal possession of a controlled substance, second degree conspiracy, and seventh degree criminal possession of a controlled substance. The Appellate Division, Third Department and the Court of Appeals both affirmed the conviction. Petitioner did not seek review by the United States Supreme Court.
In his appeal to the Appellate Division, Petitioner was represented by counsel who filed an initial and reply brief on his behalf. Additionally, Petitioner filed a pro se brief.
See, People v. Carter, 199 A.D.2d 817, 606 N.Y.S.2d 786 (3d Dept.), Order Affirmed by, 86 N.Y.2d 721, 655 N.E.2d 157, 631 N.Y.S.2d 116 (1995), Reargument denied by, 86 N.Y.2d 839, 658 N.E.2d 225, 634 N.Y.S.2d 447 (1995).
Petitioner asserts seven claims in this habeas corpus application: (1) ineffective assistance of counsel due to his attorney's failure to establish his standing to challenge an automobile search; (2) Appellate Division error in relying on a co-defendant's trial testimony to invalidate Petitioner's standing to object to the automobile search; (3) lack of scientific evidence to support his arrest; (4) the criminal possession of a controlled substance in the first degree was a displaced crime; (5) a lack of corroboration for a co-defendant's trial testimony; (6) fraudulent evidence warranting an independent drug analysis; and, (7) ineffective assistance of counsel at all stages of the proceedings.
BACKGROUND
On September 9, 1990, Petitioner was a passenger in the back seat of a vehicle being driven by Lafayette Lewis. New York State Trooper Carlos Cuprill ("Cuprill") stopped the vehicle for speeding. (Tr. 45-49.) Petitioner and Lewis were accompanied by Latonya Porter (back seat driver's side) and Desmond Brinson (front seat passenger side). (Tr. 49-50.) After determining that Lewis was driving with a suspended learner's permit, Cuprill asked him where he was coming from and where he was going. (Tr. 53-55.) Lewis responded that he was traveling from Albany to Niagara Falls. (Tr. 55.) This raised Cuprill's suspicion since the Thruway toll ticket on the vehicle's dashboard was from Woodbury. (Tr. 55-57.)
Cuprill requested that Lewis return to his police car at which time he informed Lewis that he would be cited for speeding and aggrieved unlicenced operation. (Tr. 60.) He then obtained Lewis' permission to search the vehicle. (Tr. 60-61.) Another Trooper ("Donnelly") arrived on the scene and asked Lewis where he was coming from and where he was going; he also sought and obtained consent to search the vehicle. (Tr. 242-43.) The troopers escorted Petitioner and the other two passengers out of the car. (Tr. 244.) Petitioner immediately challenged the legality of the search. (Tr. 244.) During the search, Donnelly found a plastic bag containing white powder wrapped in aluminum foil. (Tr. 63.) All of the occupants of the vehicle were arrested and transported to the nearby State Trooper station. (Tr. 63.)
At the station, Donnelly gave the seized plastic bag to Cuprill for testing, identification and weight determination. (Tr. 250-51.) The white powder tested positive for cocaine and was established to weigh four (4) grams. (Tr.66.) Additionally, a brown paper bag later determined to contain crack and powder cocaine, was recovered during a strip search of Porter. (Tr. 69-73.) Porter later implicated Petitioner and the other passengers in a plan to transport contraband from New York City to Niagara Falls.
DISCUSSION
1. Ineffective Assistance of Counsel
A. Petitioner's Standing to Challenge Automobile Search
In his first ground for relief, the Petitioner claims that his counsel erred by not challenging the automobile search at trial. He contends that this failure is proof of inadequate assistance of counsel and reason to overturn his state conviction. Petitioner did not raise this issue during his state court suppression hearing. Consequently, the New York State Court of Appeals dismissed his appeal finding that this procedural default prevented its review of the claim. In such circumstances where a state court rejects federal claims based upon a procedural default by the Petitioner, federal habeas review is foreclosed "unless [he] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).
Cause can be established by showing that "some objective factor external to the defense impeded counsel's efforts to raise that claim in state court." Levine v. Comm. of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995) (citations and internal quotation marks omitted). Objective factors that constitute cause can include: (1) "interference by officials that makes compliance with state procedural rules impracticable"; (2) "a showing that the factual or legal basis for a claim was not reasonably available to counsel"; and, (3) "ineffective assistance of counsel. McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991) (citations and internal quotation marks omitted). However, attorney error that falls short of ineffective assistance of counsel is not cause and is not an excuse for a procedural default. Id.
In this case, Petitioner raises an ineffective assistance of counsel claim based on counsel's failure to assert "automatic standing" as a basis for challenging the automobile search. See, People v. Millan, 69 N.Y.2d 514, 508 N.E.2d 903, 516 N.Y.S.2d 168 (1987). In order to prevail on such a claim, the Petitioner must show that counsel's errors were "so serious that [he] was not functioning as the `counsel' as guaranteed by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The Petitioner must also show that counsel's errors were "so serious as to deprive [him] of a fair trial . . ." Id. Furthermore, he must demonstrate that counsel's representation "fell below an objective standard of reasonableness" which is measured under the prevailing professional norms. Id. at 688, 104 S.Ct. at 2064-2065.
Here, the Petitioner asserts that his attorney's failure to raise the standing issue at the suppression hearing is cause for his default. However, failure to raise the "automatic standing" issue alone does not constitute ineffective assistance of counsel. It cannot be said that counsel's actions dipped below the reasonableness standards established for criminal attorneys simply because he failed to raise this issue. Moreover, even if the Court assumes that Petitioner could establish ineffective assistance of counsel, his claim still fails because he has not explained, or even alleged, the manner in which he was prejudiced. There is not even an indication that, but for these alleged errors by Petitioner's attorney, the outcome of his trial would have been different. Of particular import is the Appellate Division's consideration and rejection of Petitioner's standing claim on the merits. In its decision, the court specifically noted that since the narcotics charge against Petitioner was supported by the testimony of another occupant of the car, it was not premised upon New York's statutory presumption alone, and Petitioner, therefore, had no standing to challenge the search. People v. Carter, 199 A.D.2d 817, 819, 606 N.Y.S.2d 786, 788 (3d Dept. 1993). Accordingly, Petitioner fails to overcome the procedural bar and his claim should be dismissed.
B. Petitioner's Remaining Claims
Petitioner further contends that he was denied the effective assistance of counsel in relation to all his remaining claims. As stated above, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness. He must also show that the likely outcome of the trial would have been different but for counsel's errors. DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir. 1996). However, a court must afford a high degree of deference to counsel's performance in order to avoid the temptation of rendering judgment with the acuity of hindsight unavailable to counsel at the time of trial. In fact, the Supreme Court has recognized that it is "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Strickland, 466 U.S at 689, 104 S.Ct. at 2065. Accordingly, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." DeLuca, 77 F.3d at 584.
The crux of Petitioner's claim is that he was denied effective counsel because he and a co-defendant were represented by the same attorney at their arraignment. He argues that a constitutionally significant conflict of interest existed through this dual representation and is grounds for overturning his conviction. However, despite these assertions, the fact of dual representation does not imply a conflict of interest since Petitioner was represented by separate counsel at every subsequent stage of the state proceedings. Furthermore, there are no other facts indicating a conflict of interest. See, Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980); United States v. Stantini, 85 F.3d 9, 15-16 (2d Cir. 1996).
Additionally, the record indicates that Petitioner's attorney provided meaningful representation. He made appropriate pretrial motions, participated in every stage of the proceedings, cross-examined witnesses and presented a viable defense. The omissions by his attorney that the Petitioner notes also fail to allege the absence of good trial strategy. Moreover, he has also failed to show that but for these alleged errors, he would have been acquitted. This is especially apparent as two state appellate courts and this Court, in this opinion, have rejected the claims that stem from his assertion of attorney error.
II. Appellate Division Error
Next, Petitioner argues that the Appellate Division erred when it used his co-defendant's trial testimony to invalidate his standing to suppress evidence. As support, he points to the failure of his co-defendant to testify at the pre-trial suppression hearing. He argues that her testimony had no impact on the "automobile presumption" which formed the basis of his arrest. Thus, according to Petitioner, the Appellate Division erroneously used evidence not before the trial court to affirm his lack of standing.
Federal habeas relief is "limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). Here, Petitioner does not state a constitutionally protected right but makes a state law claim that falls outside the scope of habeas corpus review. See, Id. at 67-68, 112 S.Ct. at 480. Moreover, as demonstrated by the trial court's findings, the evidence relied on by the Appellate Division was before that court through the testimony of the investigating officer. See, Suppression Hearing Transcript, p. 164-65.
III. Scientific Evidence Supporting Arrest
Petitioner alleges that the substance found in the rear seat of the vehicle and which served as the basis for his arrest was never proven to be a controlled substance. It is this lack of evidence that Petitioner relies on to assert: (1) that his arrest was not supported by scientific evidence; and, (2) that the substance was a plant taken from the drugs found in the brown paper bag. Apparently, he argues that his arrest was invalid because the drugs used to invoke the statutory presumption supporting his arrest were never proven to exist.
The Government interprets Petitioner's claim as a challenge to the sufficiency of the evidence. If this is, in fact, what Petitioner meant to argue, his claim also must fail. On a writ of habeas corpus, a federal court does not engage in an independent weighing of the evidence. Instead, the court must view the evidence in the light most favorable to the prosecution, construe all inferences in its favor, and determine "whether the record is so totally devoid of evidentiary support that a due process issue is raised." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994) (citations and internal quotation marks omitted). Here, a reasonable trier of fact could have determined that the evidence seized from the vehicle was cocaine. The record, evidenced by Trooper Cuprill's testimony, was not totally devoid of the requisite support for such a finding.
Assuming that the Petitioner properly pleads a Fourth Amendment claim, he must first satisfy the exhaustion requirement for habeas petitions and exhaust all available state remedies. Specifically, a habeas petitioner who wants to overturn a state conviction on federal grounds must first offer the state an opportunity to consider federal claims. Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982). This principle springs from the loins of federal-state comity and assures the state courts a full and fair opportunity to consider to federal claims. Id. In this case, the Petitioner used only state law to support both his state court appeals. In fact, he did not make any constitutional arguments to the Appellate Division, instead he merely cited the Constitution in his brief's point headings. Since the Petitioner did not present any constitutional claims to the state courts, he violated the exhaustion requirement and his petition concerning his scientific evidence claim should be dismissed.
Finally, Petitioner's claim must also fail because the evidence in question was determined to be a controlled substance in violation of state law. Although the state's forensic scientist did not test the drugs seized from the vehicle, (Tr. 379-80), Trooper Cuprill tested the substance found in the car with a narcotics identification kit ("NIK"). See, Suppression Hearing Transcript, p. 134; (Tr. 67). The substance tested positive for cocaine. See, Id. at 135. It was also established that Cuprill was trained and experienced in identifying controlled substances. (Tr. 71).
IV. Displaced Crime
Petitioner contends that the charge against him for first degree criminal possession of a controlled substance should have been dismissed as a displaced crime. Specifically, he claims he was arrested under the automobile presumption for the contraband discovered in the vehicle's rear seat. However, this charge was never raised in the criminal complaint or at the arraignment. Rather, the Petitioner was charged with criminal possession of the controlled substance found in the brown bag given to the police by a co-defendant.
Perhaps, Petitioner claims that the police failed to follow state law procedures when charging him in the criminal complaint and at his arraignment. He seems to argue that they must charge him with possession of the contraband which precipitated his arrest. However, this claim arises solely under state law, not a constitutionally protected right, and falls outside the scope of habeas corpus review. Estelle v. McGuire, 502 U.S. at 67-68, 112 S.Ct. at 480.
Additionally, even if he states a federal claim, the Petitioner must still satisfy the exhaustion requirement. In both of his state court briefs, he cites state statutes as grounds for reversal. In his brief to the Appellate Division, the federal constitution is cited merely as a passing reference to the limitations on a police officer's powers. There is a complete absence of federal authority in Petitioner's brief to the Court of Appeals. In sum, the Petitioner again failed to present a potential federal claim to the state courts in violation of the exhaustion requirement.
V. Corroboration of Co-Defendant's Testimony
Petitioner alleges that his co-defendant's trial testimony was not sufficiently corroborated. Citing solely New York case law, he argues that state statutory law requires an accomplice's testimony be supported by truly independent corroborative evidence. However, since this claim arises solely under state law, and is not a constitutionally protected right, it too falls outside the scope of habeas corpus review and cannot be a ground for habeas relief. Id.
VI. Discovery Request
Finally, the Petitioner seeks: (1) discovery of the prosecution's chain of custody records and reports, and the drug substances introduced at trial; (2) an independent scientific analysis of the drug substances; and, (3) the evaluation and report by an independent analyst of the lawfulness of the chain of custody.
A habeas petitioner "is not entitled to discovery as a matter of ordinary course." Charles v. Artuz, 21 F. Supp.2d 168, 169 (E.D.N.Y. 1998) (citations and internal quotation marks). Rule 6(a) of the Rules Governing Section 2254 Cases provides that a habeas petitioner is entitled to discovery "if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Generalized statements about the possible existence of materials relevant to a petitioner's habeas claims is not "good cause". See, Green v. Artuz, 990 F. Supp. 267, 271 (S.D.N.Y. 1998). Instead, a petitioner must produce specific evidence that supports his claim that the requested material exists. Id.
Petitioner seeks the requested material in order to prove that the drugs introduced at trial were fraudulent. This Court already has rejected this request for discovery, subsequent to the filing of his petition. (No. 25.) Moreover, the Petitioner fails to support his assertion of fraud in his petition. His assertions are merely conclusory and thus, as previously determined, do not establish good cause.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that Petitioner's habeas corpus petition be DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health of Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).