     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




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