Rivera v. Kopp

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MEMORANDUM & ORDER
23-CV-07418 (DG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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Senate Rivera,
Petitioner,
-against-
Ms. M. Kopp, Acting Superintendent,
Respondent.
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DIANE GUJARATI, United States District Judge:
By Petition filed September 16, 2023, pro se Petitioner Senate Rivera, incarcerated at
Sing Sing Correctional Facility, commenced this action pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Southern District of New York, challenging his 2018
conviction in the Supreme Court of the State of New York, County of Richmond (the “Richmond
County Supreme Court”) of criminal sale of a controlled substance in the first degree and
criminal possession of a weapon in the second degree upon his plea of guilty. See ECF No. 1.1
The action subsequently was transferred to the United States District Court for the Eastern
District of New York. See ECF No. 2; see generally docket.
On April 20, 2024, Petitioner filed the operative Amended Petition. See Amended
Petition (“Am. Pet.”), ECF No. 10.2 The Court liberally construes the Amended Petition in light
of Petitioner’s pro se status. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). In summary,
1 	Under the “prison mailbox rule,” the operative filing date is the date on which the petition was
delivered to prison officials for forwarding to the court. See Noble v. Kelly, 246 F.3d 93, 97-
98 (2d Cir. 2001). Here, Petitioner declares that he delivered the Petition to prison authorities
on September 16, 2023. See ECF No. 1 at 16. The Petition was timely filed and Respondent
does not argue otherwise.
2 	The filing of the Amended Petition followed the grant of Respondent’s Motion for More
Definite Statement. See March 27, 2024 Order (granting motion); ECF No. 9 (motion).
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Petitioner asserts that evidence recovered during the execution of warrants to search two
apartments should have been suppressed – i.e., that his Fourth Amendment rights have been
violated. See generally Am. Pet.
For the reasons set forth below, the Amended Petition is DENIED.
BACKGROUND
I. 	State Proceedings3
A. 	Searches, Arrest, and Indictment4
In April 2018, the police obtained three search warrants – for the Basement Apartment at
50 Caroline Street, Staten Island (“50 Caroline Street”), for the Rear Door Apartment at 50
Caroline Street, and for the person of Petitioner, respectively. Upon execution of the warrants at
the two apartments, numerous items were recovered, including a gun, ammunition, drugs, and
drug paraphernalia. Petitioner thereafter was arrested and charged in a 48-Count Indictment.
Among the charges contained in the Indictment were criminal sale of a controlled substance in
the first degree (Count One) and criminal possession of a weapon in the second degree (Count
Twenty-Six).5
B. 	Pretrial Motion
In July 2018, Petitioner – at the time represented by counsel – filed an Omnibus Motion
3 	Familiarity with the procedural history and background with respect to the state court
proceedings and with the entirety of the State Court Record (“S.R.”), ECF Nos. 13-2, 13-3,
and 13-4, is assumed herein.
4 	The information contained in this section is uncontested and is taken from the State Court
Record and the decision of the state court on Petitioner’s appeal, which decision is discussed
further below.
5 	The Court takes judicial notice of the Indictment, People v. Rivera, Indictment No. 194/2018,
(N.Y. Sup. Ct.), and the attached Information.
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that, as relevant here, included a Motion to Controvert the Search Warrants and Suppress
Property (the “Motion to Controvert and Suppress”). See S.R. 45, 54-57. In the Motion to
Controvert and Suppress, Petitioner sought, inter alia, suppression of property recovered from
the two apartments at 50 Caroline Street, principally arguing that the warrants at issue were
overbroad and insufficiently particular, in violation of Petitioner’s rights under the New York
State Constitution and the Fourth Amendment to the United States Constitution.
The People filed an Affirmation in response to the Omnibus Motion. See S.R. 62-71. In
the Affirmation, the People opposed the Motion to Controvert and Suppress, principally arguing
that the warrants at issue were neither overbroad nor insufficiently particular.
By Decision and Order dated August 24, 2018, Justice Stephen J. Rooney of the
Richmond County Supreme Court denied the Motion to Controvert and Suppress, having
determined, inter alia, that “there was probable cause for the issuance of the search warrant;”
that “the warrant described the premises to be searched with sufficient particularity and it was
not overbroad;” and that Petitioner “provide[d] an insufficient factual basis” to obtain a Franks
hearing. See S.R. 42-44.6
C. 	Guilty Plea and Sentencing
On November 30, 2018, Petitioner entered a plea of guilty to Counts One and Twenty-Six
of the Indictment. See S.R. 93-107. In connection with his guilty plea, Petitioner signed a
Waiver of the Right to Appeal form. See S.R. 85.
On December 17, 2018, Petitioner was sentenced on Count One to twelve years of
incarceration and five years of post-release supervision and was sentenced on Count Twenty-Six
6 	Although there are references in the record to “warrant” in the singular, it is uncontested that
three warrants (supported by one affidavit) were issued. See S.R. 73-84.
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to five years of incarceration and five years of post-release supervision, with the sentences to run
concurrently. See S.R. 108-12.
D. 	Appeal
On January 14, 2022, Petitioner – at the time still represented by counsel – appealed the
judgment of conviction to the Supreme Court of the State of New York, Appellate Division,
Second Department (the “Appellate Division”). See S.R. 1-38. Petitioner raised one principal
argument on appeal: that “the evidence recovered during the execution of warrants to search two
separate apartments, including Appellant’s home, must be suppressed because (a) the warrant
application did not allege that any illegal activity was connected to the rear-door apartment; and
(b) the no-knock provisions in the warrants were impermissibly based on the potential presence
of drugs in a building that had plumbing and windows.” See S.R. 2, 16-38. More specifically,
Petitioner argued (1) that the warrant application did not establish probable cause to search the
Rear Door Apartment and therefore, the evidence seized from that apartment – a gun,
ammunition, heroin, paraphernalia, mail, cellphones, and money – should be suppressed,
Petitioner’s conviction reversed, and certain Counts of the Indictment dismissed; and (2) that the
warrant application did not establish reasonable cause that property sought could be quickly and
easily disposed of and therefore, there was not a sufficient basis to justify an exception to the
knock-and-announce rule and all of the evidence obtained as a result of the no-knock warrants
should be suppressed, Petitioner’s conviction reversed, and certain Counts of the Indictment
dismissed.
Petitioner also argued that his claims “were preserved for review by counsel’s motion to
controvert the search warrant, in which he argued that all evidence seized under the warrants
must be suppressed as obtained in violation of appellant’s state and federal constitutional rights”
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and “were further preserved by the court’s express ruling that the warrant was supported by
probable cause for both locations” and that to the extent that the court found his challenge based
on the knock-and-announce rule unpreserved, the court should reach that claim in the interest of
justice. See S.R. 33-34. Petitioner asserted that his waiver of appeal was invalid. See S.R. 34.
The People opposed Petitioner’s appeal. See generally S.R. 113-44. The People raised
two principal arguments in opposition to the appeal: (1) that a neutral magistrate properly
granted a search warrant of property associated with Petitioner based on the probable cause
presented in the search warrant affidavit; and (2) that a neutral magistrate properly granted the
no-knock provision of the search warrant after finding reasonable cause present in the affidavit.
Further, the People asserted that Petitioner’s challenge to the adequacy of the probable cause
showing was both unpreserved and meritless and that Petitioner’s challenge to the no-knock
provision also was both unpreserved and meritless. The People did not seek enforcement of the
waiver of the right to appeal.
By decision dated November 9, 2022, the Appellate Division affirmed Petitioner’s
judgment of conviction. See People v. Rivera, 178 N.Y.S.3d 169 (2d Dep’t 2022). The Appellate
Division stated as an initial matter that “contrary to the People’s contention, the defendant’s
contention that one of the warrants was not supported by probable cause is preserved for
appellate review” because “[a]lthough the defendant did not raise any arguments related to
whether the search warrant was supported by probable cause in his motion, inter alia, to
controvert the search warrants and suppress the evidence seized in the execution thereof, the
Supreme Court expressly decided the issue of whether the warrant was supported by probable
cause.” See id. at 170-71 (quotation omitted). The Appellate Division went on to state that
“[c]ontrary to the defendant’s contention, the Supreme Court properly denied those branches of
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his motion which were to controvert search warrants and suppress the evidence seized in the
execution thereof” because “[h]ere, there was probable cause to issue the subject search
warrants.” See id. at 171. The Appellate Division further stated that “[t]he defendant’s
contention that the Supreme Court erred in upholding the provision in the search warrants
permitting the police officers to enter the subject location without announcing their presence is
unpreserved for appellate review” and the Appellate Division “decline[d] to reach the issue in the
exercise of [the Appellate Division’s] interest of justice jurisdiction.” See id.
By letter dated November 30, 2022, Petitioner – at the time still represented by counsel –
sought leave to appeal to the New York State Court of Appeals (the “Court of Appeals”) from the
Appellate Division’s November 9, 2022 decision. See S.R. 168-69. Petitioner thereafter
submitted a supplemental letter in support of his request for leave. See S.R. 170-76. Petitioner
argued, inter alia, that his case presented the Court of Appeals with “the opportunity to explain if
probable cause to search a residence can be established by probable cause to search a separate
apartment in the building, solely because they share an owner and entryway” and stated that the
Appellate Division concluded that “this issue was preserved by the suppression court’s specific
ruling on the issue in response to defense counsel’s omnibus motion.” See S.R. 170, 175.
Petitioner stated that he was seeking leave to appeal “on this issue, as well as on all state and
federal constitutional issues raised in his appeal to the Appellate Division.” See S.R. 175.
By letter dated January 10, 2023, the People opposed Petitioner’s application for leave to
appeal the Appellate Division’s November 9, 2022 decision, arguing that the claim Petitioner
sought to raise was unpreserved and, in any event, unworthy of review. See S.R. 177-78.
By Order dated June 30, 2023, the Court of Appeals denied Petitioner’s application for
leave to appeal. See S.R. 179.
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II. 	The Amended Petition and Opposition
In the Amended Petition, Petitioner asserts that evidence obtained from the searches of
the two apartments at 50 Caroline Street must be suppressed. See generally Am. Pet. More
specifically, Petitioner argues (1) that the evidence recovered from the Rear Door Apartment
must be suppressed because the warrant application “did not allege that any illegal activity was
connected to [that apartment];” and (2) that the no-knock provision in the warrant for each of the
apartments was “impermissibly based on the potential presence of drugs in a building that had
plumbing and windows.” See Am. Pet. at 3. Although the Amended Petition does not expressly
reference the Fourth Amendment to the United States Constitution, the Amended Petition is
grounded in the Fourth Amendment. See generally Am. Pet.
Respondent opposes the Amended Petition. See Memorandum of Law in Opposition to
the Amended Petition for a Writ of Habeas Corpus (“Resp. Br.”), ECF No. 13-1; see also
Declaration in Opposition to the Amended Petition for a Writ of Habeas Corpus, ECF No. 13.
Respondent argues that “Petitioner’s Fourth Amendment claim fails” because “[t]he no knock
claim is procedurally barred by an adequate and independent state law ground” and “both claims
are barred under Stone v. Powell, 428 U.S. 465, 494 (1976).” See Resp. Br. at 2. With respect to
the no-knock claim, Respondent argues, more specifically, that such claim is procedurally barred
because the Appellate Division found the claim to be unpreserved for appellate review and the
claim “is therefore decided at the state level on independent and adequate state procedural
grounds” and, furthermore, Petitioner “has not demonstrated cause for the default, prejudice, or a
miscarriage of justice.” See Resp. Br. at 2-3. With respect to the asserted Stone bar, Respondent
argues, more specifically, that Petitioner “has fully litigated his Fourth Amendment suppression
claims in state court.” See Resp. Br. at 4-6 (referencing Petitioner’s Omnibus Motion, the
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Richmond County Supreme Court’s August 24, 2018 Decision and Order, and Petitioner’s direct
appeal and arguing that the record reveals that at every stage of the state proceedings, Petitioner
was afforded an ample opportunity to vindicate his Fourth Amendment rights in the state courts).
FEDERAL REVIEW OF STATE CONVICTIONS
To determine whether a petitioner is entitled to a writ of habeas corpus, a district court
must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”).
Pursuant to 28 U.S.C. § 2254(a), “a district court shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” See 28 U.S.C. § 2254(a).
In order to obtain relief pursuant to 28 U.S.C. § 2254, a petitioner generally must first
exhaust his state remedies by fairly presenting his constitutional claims to the state courts. See
28 U.S.C. § 2254(b)(1) (providing: “An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not be granted unless it appears
that – (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i)
there is an absence of available State corrective process; or (ii) circumstances exist that render
such process ineffective to protect the rights of the applicant.”); see also Jackson v. Conway, 763
F.3d 115, 133 (2d Cir. 2014) (noting that exhaustion “requires that the prisoner fairly present his
constitutional claim to the state courts, which he accomplishes by presenting the essential factual
and legal premises of his federal constitutional claim to the highest state court capable of
reviewing it” (quotations omitted)).
“Moreover, ‘federal courts will not review questions of federal law presented in a habeas
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petition when the state court’s decision rests upon a state-law ground that is independent of the
federal question and adequate to support the judgment.’” Sutton v. Royce, No. 20-CV-02844,
2024 WL 1073150, at *6 (E.D.N.Y. Mar. 12, 2024) (quoting Cone v. Bell, 556 U.S. 449, 465
(2009)). “[I]f the state court refused to consider an argument because it was procedurally barred
under state law, the argument is barred from federal habeas review so long as the procedural bar
is ‘adequate to support the judgment.’” Id. (quoting Murden v. Artuz, 497 F.3d 178, 191-92 (2d
Cir. 2007)).
“Where a defendant has procedurally defaulted a claim by failing to raise it on direct
review, the claim may be raised in habeas only if the defendant can first demonstrate either cause
and actual prejudice, or that he is actually innocent.” Georgison v. Donelli, 588 F.3d 145, 153
(2d Cir. 2009) (quotation omitted); see also York v. King, No. 24-CV-02449, 2025 WL 1566414,
at *4 (E.D.N.Y. June 3, 2025) (discussing procedural default).
Where a petitioner’s claim was adjudicated on the merits in state court, the state court’s
decision is entitled to deference under AEDPA. See 28 U.S.C. § 2254(d) (providing: “An
application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim – (1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.”); Englert v. Lowerre, 115 F.4th 69, 80 (2d Cir. 2024) (discussing 28
U.S.C. § 2254(d) and noting that standard of review is highly deferential and difficult to meet),
cert. denied sub nom. Englert v. Bishop, 145 S. Ct. 2826 (2025); see also Woods v. Donald, 575
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U.S. 312, 316 (2015) (noting that AEDPA’s standard is intentionally difficult to meet).
With respect to claims under the Fourth Amendment, the United States Court of Appeals
for the Second Circuit has stated that Stone v. Powell “imposes a prudential limitation on a
petitioner’s ability to obtain habeas relief on the ground that the state court declined to suppress
evidence obtained in an unlawful search” and that “Stone applies irrespective of the merits of the
underlying Fourth Amendment claim.” See Ethridge v. Bell, 49 F.4th 674, 684 (2d Cir. 2022);
see also Stone v. Powell, 428 U.S. 465, 494 (1976). “[O]nce it is established that a petitioner has
had an opportunity to litigate his or her Fourth Amendment claim (whether or not he or she took
advantage of the state’s procedure), the court’s denial of the claim is a conclusive determination
that the claim will never present a valid basis for federal habeas relief.” Graham v. Costello, 299
F.3d 129, 134 (2d Cir. 2002). A petitioner may, however, obtain habeas relief “if he shows that
the state denied him an opportunity for full and fair litigation of his Fourth Amendment claim.”
See Ethridge, 49 F.4th at 684 (citing Stone, 428 U.S. at 494 n.37). “To do so, a petitioner must
establish either that ‘the state has provided no corrective procedures at all to redress the alleged
fourth amendment violations,’ or, ‘if the state has provided a corrective mechanism,’ that the
petitioner ‘was precluded from using that mechanism because of an unconscionable breakdown
in the underlying process.’” Id. (quoting Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992)); see
also Sutton, 2024 WL 1073150, at *7. A petitioner’s failure to raise and preserve a claim in state
court does not equate to the denial of an opportunity for full and fair litigation of the claim. See,
e.g., Blocker v. Graham, No. 17-CV-06648, 2022 WL 309952, at *15 (W.D.N.Y. Feb. 2, 2022).
“The Second Circuit has long held that New York’s procedure for litigating Fourth
Amendment claims is facially adequate.” Sutton, 2024 WL 1073150, at *7; see also Capellan,
975 F.2d at 70 n.1 (noting that “the federal courts have approved New York’s procedure for
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litigating Fourth Amendment claims . . . as being facially adequate” and collecting cases
(quotation omitted)). “Therefore, because New York has provided a ‘corrective mechanism,’ [a
petitioner] may only obtain habeas relief if he can establish that he was ‘precluded from using
that mechanism because of an unconscionable breakdown in the underlying process.’” Sutton,
2024 WL 1073150, at *7 (quoting Ethridge, 49 F.4th at 684). “To establish such a breakdown,
the petitioner would have to prove that the state system failed to conduct a reasoned method of
inquiry into relevant questions of fact and law,” which is a “stringent standard.” See id.
(quotations omitted); see also Love v. Superintendent of Otisville Corr. Facility, No. 16-CV-
02937, 2017 WL 4233011, at *6 (E.D.N.Y. Sept. 22, 2017) (noting that in Capellan, the Second
Circuit gave a few examples of the sort of disruption or obstruction of a state proceeding
typifying an unconscionable breakdown – including if the trial court yielded to mob intimidation
of the jury – and distinguishing those examples); Ramos v. Goodman, No. 23-CV-04762, 2024
WL 4354863, at *10 (S.D.N.Y. Sept. 27, 2024) (noting that a “‘mere disagreement with the
outcome of a state court ruling is not the equivalent of an unconscionable breakdown in the
state’s corrective process’” and that an “unconscionable breakdown in the underlying process
occurs when ‘the totality of state procedures allegedly did not provide rational conditions for
inquiry into federal law’” (quoting Capellan, 975 F.2d at 72, 70); stating that “[e]xamples of
unconscionable breakdowns in the underlying procedure include, but are not limited to, the
bribing of a trial judge, the government’s knowing use of perjured testimony, or the use of
torture to extract a guilty plea, all without opportunity to obtain state review” (quotation
omitted); and distinguishing those examples).
DISCUSSION
The record reflects that the State provided an opportunity for full and fair litigation of
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Petitioner’s Fourth Amendment claims and therefore Petitioner may not be granted habeas relief
on the grounds raised in the Amended Petition. See Stone, 428 U.S. at 494.
As an initial matter, Petitioner does not appear to argue that New York “has provided no
corrective procedures at all” to redress the alleged Fourth Amendment violations, nor would any
such argument be supported by the applicable law as set forth above, see Capellan, 975 F.2d at
70 n.1; Sutton, 2024 WL 1073150, at *7, or by the record here, which reflects the existence of
corrective procedures.
Because New York has provided a corrective mechanism, Petitioner may only obtain
habeas relief if he can establish that he “was precluded from using that mechanism because of an
unconscionable breakdown in the underlying process.” See Ethridge, 49 F.4th at 684 (quotation
omitted); see also Sutton, 2024 WL 1073150, at *7. Petitioner has failed to do so here. To the
contrary, the record reflects that Petitioner had available to him procedures to allow him to be
heard on his Fourth Amendment claims fully and fairly and the record reflects that Petitioner in
fact availed himself of various procedures that allowed him to be heard.
As set forth above, Petitioner, who was represented by counsel in state court, inter alia:
(1) filed the Motion to Controvert and Suppress; (2) received a decision on the Motion to
Controvert and Suppress; (3) filed an appeal of the judgment of conviction, raising issues
relevant to his Fourth Amendment claims; (4) received a decision from the Appellate Division
with respect to his appeal; (5) sought leave to appeal to the Court of Appeals, raising issues
relevant to his Fourth Amendment claims; and (6) received a decision from the Court of Appeals
on his request for leave.
Petitioner’s disagreement with the rulings in state court does not establish any
unconscionable breakdown. See Capellan, 975 F.2d at 72; Sutton, 2024 WL 1073150, at *7-8.
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The Amended Petition, ECF No. 10, is denied.7
CONCLUSION
For the reasons set forth above, the Amended Petition, ECF No. 10, is DENIED.
The Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
Petitioner, however, has a right to seek a certificate of appealability from the United States Court
of Appeals for the Second Circuit. See 28 U.S.C. § 2253(c).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and therefore denies in forma pauperis status for the purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to enter judgment, close this case, and mail a copy of this
Order to Petitioner.
SO ORDERED.
/s/ Diane Gujarati 	__
DIANE GUJARATI
United States District Judge
Dated: January 2, 2026
Brooklyn, New York
7 	As Respondent argues, even setting aside the Stone bar, New York’s preservation rule would
constitute an adequate and independent state law ground barring federal habeas review as to
Petitioner’s no-knock claim, which the Appellate Division found unpreserved. See Resp. Br.
at 2-3 (citing, inter alia, McPherson v. Keyser, No. 20-161-pr, 2021 WL 4452078 (2d Cir.
Sept. 29, 2021) and Garvey v. Duncan, 485 F.3d 709 (2d Cir. 2007) and asserting that
Petitioner has not demonstrated cause for his default, prejudice, or a miscarriage of justice).
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