Wilson v. Graham, 9:17-CV-0863 (BKS)

CHRISTOPHER A. WILSON, Petitioner, v. HAROLD GRAHAM, Respondent.

9:17-CV-0863 (BKS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

November 15, 2018

APPEARANCES:

CHRISTOPHER A. WILSON

Petitioner, pro se

13-B-1473

Cayuga Correctional Facility

P.O. Box 1186

Moravia, NY 13118

HON. BARBARA D. UNDERWOOD

Counsel for Respondent

Office of the Attorney General

28 Liberty Street

New York, New York 10005

OF COUNSEL:

MATTHEW B. KELLER, ESQ.

Assistant Attorney General

BRENDA K. SANNES United States District Judge

DECISION and ORDER

I. INTRODUCTION

Petitioner Christopher A. Wilson, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 10, Second Amended Petition ("Pet."). Respondent filed a response in opposition to the petition and pertinent records from petitioner's state court proceedings. Dkt. No. 16, Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus ("R. Mem."); Dkt. No. 17, Answer; Dkt. Nos. 18-1, State Court Records ("SR"); Dkt. No. 18-2, State Court Transcripts. Petitioner did not file a reply.

For the reasons that follow, petitioner's habeas petition is denied and dismissed.

II. RELEVANT BACKGROUND

In May 2012, petitioner was charged in a sealed indictment with criminal possession of a controlled substance in the first degree (N.Y. Penal Law ("Penal Law") § 220.21(1)), criminal possession of a controlled substance in the third degree (Id. § 220.16(1)), conspiracy in the second degree (Id. § 105.15), and five counts of criminally using drug paraphernalia in the second degree (Id. § 220.50(2), (3)). SR at 104-07, Indictment. The charges stemmed from an incident in April 2012, during which a police officer investigated a complaint of an odor of marijuana made by a tenant in an apartment building, knocked on the door of a neighboring apartment, and, ultimately, discovered marijuana and cocaine inside that apartment. Dkt. No. 18-2, Suppression Hearing Tr. ("SH"), 9/26/12, at 73-80.¹

In his counseled omnibus motion, petitioner moved to suppress physical evidence obtained as a result of the warrantless entry into the apartment where he and his codefendants were located. SR at 115-18. The Jefferson County Court held an evidentiary hearing on September 26, 2012. SR at 138-39; SH at 1-5.

A. Suppression Hearing

At the hearing, Sabrina Kellogg, who resided in apartment 8 of the building at issue during the relevant time period, testified that in January or February 2012, she had contact with the Village of Adams Police Department because her apartment was burglarized. SH at 7-8. On that occasion, Kellogg also complained to law enforcement because, at varioustimes, she could smell an odor of marijuana emanating from the adjoining apartment. Id. at 8-9. Kellogg kept in touch with detective Ron Gatch, and advised Gatch when she noticed the smell, but it would quickly dissipate on each occasion. Id. at 10-11. On April 1, 2012, Kellogg contacted Gatch and advised him that the smell was the "worst that it ha[d] ever been[.]" Id. at 12. Gatch came to Kellogg's apartment and performed a "walk-through" to determine from where the odor was originating. Id. at 13.

Gatch testified that, in the early spring of 2012, he investigated a burglary complaint made by Kellogg, which was one of several such complaints in the same apartment building. Id. at 59-60. During the course of that investigation, Kellogg advised Gatch that "her next door neighbor in apartment [7] had been smoking marijuana and there was a lot of foot traffic there." Id. at 61. Gatch told Kellogg to "let [him] know" the "next time" that she smelled the odor, and that he would "come and speak with her" if he could. Id.

Although Kellogg thereafter contacted Gatch approximately once or twice per week about the odor, Gatch worked in the Village of Adams only two days per week and was unable to respond in time to experience the odor first-hand until April 1, 2012. Id. at 62. Gatch investigated the apartment, which Kellogg identified as the source of the odor, and surveilled the building. Id. at 63-64. As a result, he observed petitioner once prior to April 1, 2012. Id. at 64. On the same date, Gatch went to the building and saw a white Mitsubishi Gallant in the parking lot. Id. at 66. Gatch learned a few days earlier that petitioner had used that vehicle. Id. at 65-67.² While surveilling the building, Gatch observed a person known tohim as Daniel Borg emerge from the building entrance that led "right up to" apartment 7's door. Id. at 67-68. Borg got into the Gallant and drove away. Id. at 68. Gatch knew that Borg's driver's license had been revoked (and confirmed that fact), and so Gatch followed Borg out of the vicinity of the apartment building and executed a traffic stop. Id.

Gatch placed Borg under arrest and, during a search incident to the arrest, discovered a bag containing approximately five grams of cocaine. Id. at 69. Borg told Gatch that he had just purchased the cocaine from an apartment in the building that he just left, and that the seller was known as "Black." Id. at 70-71. Gatch was aware that other individuals had referred to petitioner as "Black," and Borg added that the seller's first name was Chris. Id. Gatch allowed Borg to contact someone to pick him up. Id. at 71.³

Thereafter, Gatch returned to the apartment building and, around the same time, received a text message from Kellogg stating that the odor of marijuana had returned and was "very strong in the apartment." Id. at 73. Gatch entered the building, went into Kellogg's apartment, and determined that the odor was "strongest closest to the wall that she shared with apartment [7]." Id. at 74-75. Gatch called for backup and knocked on the door to apartment 7. Id. at 75-76.

Petitioner opened the door, and Gatch stated that he needed to speak to him "about the odor of marijuana," which was stronger when the door was opened. Id. at 76. Petitioner "attempted to slam the door," and Gatch pushed the door open and entered the apartm ent because he feared that any evidence would be easily destroyed or hidden. Id. at 77.Petitioner, Avallone-Clark, and another individual, codefendant Emmanuel Sheppard, were inside. Id. at 78. Gatch saw a "large quantity of white powder that [he] suspected to be cocaine" on the kitchen counter and left the apartment to obtain a warrant while another officer detained the occupants. Id. at 79-80.

In a lengthy Decision and Order dated November 14, 2012, the Jefferson County Court denied petitioner's motion to suppress (as well as the motions of his codefendants). SR at 155-177. The court made detailed findings of fact and rejected petitioner's and his codefendants' argument that Gatch violated their rights by knocking on the door to apartment 7 without first obtaining a search warrant. Id. at 156-70. The court explained that, "[o]nce that [apartment] door was opened, the circumstances changed [and] much of what Officer Gatch had merely suspected prior to knocking on the door, was confirmed." Id. at 170. Before Gatch "ever stepped over the threshold of that apartment," he learned that petitioner was in fact present in that apartment and that the odor of marijuana was originating from apartment 7. Id. at 170-71. Additionally, the court concluded that exigent circumstances existed, and that Gatch reasonably believed that the drugs at issue would have been moved or destroyed if he did not enter at that time. Id. at 171-75, 177.

B. Plea Proceeding

On January 7, 2013, petitioner appeared before the county court with counsel and entered into a plea agreement. Dkt. No. 18-2, Plea Proceeding Tr. ("PP"), 1/7/13, at 1-3. Petitioner agreed to plead guilty to one count of criminal possession of a controlled substance in the first degree upon the understanding that the court would sentence him to twelve years imprisonment and five years postrelease supervision. The agreement was alsopredicated upon the understanding that his sentence would run concurrent to any future sentence resulting from an investigation then being conducted by the New York State Attorney General, and that another felony charge for promoting prison contraband then pending would be "merged" into the sentence. Id. at 2-3.⁴

Petitioner was sworn and acknowledged that he understood the terms of the plea agreement, he had discussed the terms of the plea agreement with defense counsel, and no one had forced him to plead guilty. Id. at 4. The court enumerated the rights that petitioner was giving up by pleading guilty, including the right to (1) a jury trial, (2) require the prosecution to prove his guilt beyond a reasonable doubt, (3) testify, and (4) cross-examine witnesses against him; petitioner stated that he understood. Id. at 4-5. Petitioner pleaded guilty to the charge, which was based upon his knowing and unlawful possession of a mixture or compound of a substance that weighed more than eight ounces and contained cocaine. Id. at 6.

On May 10, 2013, the court sentenced petitioner as a second felony offender and imposed the agreed-upon sentence. Dkt. No. 18-2, Sentencing Tr. ("Sent."), 5/10/13, at 5-6.

C. Direct Appeal

Petitioner filed a counseled brief on direct appeal to the Appellate Division, Fourth Department, in which he argued that the trial court erred in denying petitioner's motion to suppress the fruits of an unlawful warrantless search of an apartment. SR at 5, 13-33. Specifically, petitioner contended that "[t]he lower court's focus on the 'scintilla of timeimmediately following [petitioner's] attempt to close the door' ignored what Officer Gatch knew prior to knocking on the door to Apartment 7. . . . In so doing, the lower court failed to properly evaluate whether Officer Gatch had time to secure a warrant." Id. at 14.

The Fourth Department affirmed petitioner's conviction for the reasons it previously stated in People v. Richardson, 132 A.D.3d 1313 (4th Dep't 2015). People v. Wilson, 134 A.D.3d 1396 (4th Dep't 2015). In Richardson, the Fourth Department agreed...