Bruno v. Superintendent, Five Points Correctional Facility

15-96
Bruno v. Superintendent, Five Points Correctional Facility
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 5th day of February, two thousand sixteen.
5
6 PRESENT: DENNIS JACOBS,
7 RICHARD C. WESLEY,
8 DEBRA ANN LIVINGSTON,
9 Circuit Judges.
10
11 - - - - - - - - - - - - - - - - - - - -X
12 JAMES BRUNO,
13 Petitioner-Appellant,
14
15 -v.- 15-96
16
17 SUPERINTENDENT, FIVE POINTS
18 CORRECTIONAL FACILITY,
19 Respondant-Appellee.
20 - - - - - - - - - - - - - - - - - - - -X
21
22 FOR APPELLANT: Jonathan I. Edelstein, Edelstein
23 & Grossman, New York, New York.
24
25 FOR APPELLEE: Thomas B. Litsky, Assistant
26 Attorney General (Barbara D.
27 Underwood, Solicitor General,
28 and Nikki Kowalski, Deputy
1
1 Solicitor General on the brief),
2 for Eric T. Schneiderman,
3 Attorney General of the State of
4 New York.
5
6 Appeal from a judgment of the United States District
7 Court for the Northern District of New York (Singleton, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the judgment of the district court be
11 AFFIRMED.
12
13 James Bruno appeals from the judgment of the United
14 States District Court for the Northern District of New York
15 (Singleton, J.), denying and dismissing his petition for
16 habeas corpus pursuant to 28 U.S.C. § 2254. The court
17 granted a certificate of appealability as to one issue:
18 whether petitioner’s trial counsel was ineffective for
19 failing to file a motion to suppress evidence found in the
20 search of a motel where Bruno had been staying. We assume
21 the parties’ familiarity with the underlying facts, the
22 procedural history, and the issues presented for review.
23
24 1. A threshold issue is whether Bruno’s claims are
25 procedurally defaulted. Bruno first raised his
26 ineffectiveness claim by collateral attack in a motion to
27 vacate his conviction pursuant to N.Y. C.P.L. § 440.10. The
28 state trial court rejected the claim on the merits, and the
29 Appellate Division rejected the claim as procedurally barred
30 because Bruno could have raised them on direct appeal. The
31 district court agreed that the claim was procedurally
32 defaulted before addressing the merits, in the alternative.
33
34 “We review de novo a district court’s denial of a
35 petition for a writ of habeas corpus.” Parker v. Ercole,
36 666 F.3d 830, 834 (2d Cir. 2012) (per curiam). Federal
37 habeas review is barred if the constitutional claim was
38 denied by a state court on a state procedural ground that
39 “is both ‘independent’ of the merits of the federal claim
40 and an ‘adequate’ basis for the court's decision.” Harris
41 v. Reed, 489 U.S. 255, 260 (1989). To determine whether a
42 state procedural bar is “adequate to support the judgment,”
43 Coleman v. Thompson, 501 U.S. 722, 729 (1991), a federal
44 habeas court looks to whether the state rule at issue is
45 “firmly established and regularly followed,” Ford v.
46 Georgia, 498 U.S. 411, 423-24 (1991); Bierenbaum v. Graham,
47 607 F.3d 36, 47 (2d Cir. 2010), and appropriately applied
2
1 “in the specific circumstances presented in the case,” Cotto
2 v. Herbert, 331 F.3d 217, 239-240 (2d Cir. 2003) (“[T]he
3 principles of comity that drive the doctrine counsel that a
4 federal court that deems a state procedural rule inadequate
5 should not reach that conclusion lightly or without clear
6 support in state law.” (quoting Garcia v. Lewis, 188 F.3d
7 71, 77 (2d Cir. 1999))).
8
9 Bruno contends that his ineffective assistance claim is
10 a “mixed” claim that involves both record and non-record
11 evidence and that he thinks should have been permitted to
12 raise it in a collateral § 440.10 proceeding. See People v.
13 Brown, 45 N.Y.2d 852, 853-54 (1978) (“[I]n the typical case
14 it would be better, and in some cases essential, that an
15 appellate attack on the effectiveness of counsel be bottomed
16 on an evidentiary exploration by collateral or post-
17 conviction proceeding brought under CPL 440.10 . . . .”
18 (citation omitted)); Contant v. Sabol, 987 F. Supp. 2d 323,
19 351-52 (S.D.N.Y. 2013) (collecting cases where federal
20 habeas review was not barred by procedural default for
21 “mixed claims” of ineffective assistance of counsel that
22 relied on matters both in and outside the record). The
23 parties dispute whether petitioner has relied upon documents
24 outside the record –- i.e., the search warrant and motel
25 rules –- as well as whether certain affidavits (which were
26 relied upon) were outside the record. We will assume
27 without deciding that the claim is mixed and therefore not
28 procedurally defaulted.1
1
Whether Bruno should have brought this
ineffectiveness claim on direct appeal is complicated.
Prior appellate counsel raised numerous ineffective
assistance of counsel claims that appear to have been at
least partially based on matters outside the record,
including a claim that trial counsel should have moved the
court to suppress evidence seized from Bruno’s car when he
was stopped without probable cause. Bruno does not claim
that appellate counsel was ineffective, and has offered no
explanation for why appellate counsel could successfully
raise numerous ineffective assistance of counsel claims,
including one suppression claim, but could not have raised
on direct appeal a second suppression claim. See Sweet v.
Bennett, 353 F.3d 135, 140 (2d Cir. 2003)(“[Petitioner]
chose to bring his other ineffective assistance of counsel
claims on direct appeal, so he cannot claim that he was
consolidating all of his Sixth Amendment claims for one
3
1
2 2. Bruno’s ineffective assistance of counsel claim
3 fails on the merits. To succeed on a claim of ineffective
4 assistance of counsel, a petitioner must show “that (1) the
5 performance of his counsel was objectively unreasonable and
6 (2) there is a reasonable probability that, but for [the]
7 deficient performance, the result of the proceeding would
8 have been different.” Parker, 666 F.3d at 834; see
9 Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
10 To satisfy the prejudice requirement of Strickland, Bruno
11 must show, at a minimum, that he could have prevailed on a
12 properly pursued suppression motion. See Kimmelman v.
13 Morrison, 477 U.S. 365, 375, 382 (1986) (“[A] meritorious
14 Fourth Amendment issue is necessary to the success of a
15 Sixth Amendment claim . . . .”); United States v. Matos, 905
16 F.2d 30, 32 (2d Cir. 1990). Bruno’s suppression motion
17 would not have been successful.
18
19 At the time of Bruno’s arrest, he had been staying at a
20 motel owned by BROC, a Vermont community action agency that
21 houses homeless families. As a condition of his placement
22 there by the Rutland (Vermont) County Housing Coalition, he
23 was required to pay three days’ rent twice per month.
24 Although Bruno now claims that he was current on his rent
25 payments, the record is to the contrary: Donna Stearns, the
26 manager of the motel, testified that Bruno was in arrears,
27 and Jacqueline LaFoe, who was staying in the motel with
28 Bruno, acknowledged the delinquent rent payment to
29 investigators at the time she and Bruno were arrested. See
30 App’x at 35 (“[LaFoe] expected that they might be locked out
31 because they had not paid the rent . . . .”). Because Bruno
32 was in arrears, Donna Stearns padlocked the door and later
33 inventoried its contents pursuant to hotel policy. At the
34 manager’s invitation, an investigator was present during the
35 creation of the inventory and took pictures. Bruno claims
36 that this constituted a search in violation of the Fourth
37 Amendment.
38
39 Although it is disputed whether Bruno had a reasonable
40 expectation of privacy in the motel room, or whether Bruno
41 was actually in arrears, the officers were entitled to rely
42 upon Stearns’s representation that she was the motel manager
43 and that Bruno’s tenancy had terminated for non-payment of
collateral attack with the benefit of a new evidentiary
record for those other claims.”).
4
1 rent. See United States v. Elliott, 50 F.3d 180, 186 (2d
2 Cir. 1995) (“[E]ven if the third party did not have the
3 requisite relationship to the premises, and therefore lacked
4 the authority to give a valid consent, official reliance on
5 his consent may validate the search if it was reasonable for
6 the officers to believe he had the requisite
7 relationship.”). Stearns, as the manager of the property,
8 had apparent authority to consent to the search of
9 unoccupied units in the motel, and the officers reasonably
10 relied upon these representations. See id. at 185 (“Consent
11 may validly be granted by the individual whose property is
12 to be searched, or by a third party who possesses common
13 authority over the premises.” (citations omitted)). To the
14 extent there was a mistake of fact regarding consent or
15 whether Bruno was still a tenant at the time of the
16 inventory, it was reasonable, and Bruno’s suppression motion
17 would have failed. Accordingly, the habeas petition must be
18 denied and dismissed.
19
20 For the foregoing reasons, and finding no merit in
21 Bruno’s other arguments, we hereby AFFIRM the judgment of
22 the district court.
23
24 FOR THE COURT:
25 CATHERINE O’HAGAN WOLFE, CLERK
26
5