Dunbar v. Annucci

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERMAINE DUNBAR,
Plaintiff,
-against-
ANTHONY J. ANNUCCI,1
Defendant.
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MEMORANDUM & ORDER
22-CV-222 (EK)
ERIC KOMITEE, United States District Judge:
Petitioner Jermaine Dunbar seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. 	A New York jury convicted
Dunbar of attempted robbery and criminal mischief. 	He received
a sentence of seventeen years to life and is currently
incarcerated at Coxsackie Correctional Facility.2
Dunbar makes just one argument in his petition: he
asserts that the vehicle stop that led to his arrest violated
the Fourth Amendment, and that evidence seized from the vehicle
1 Anthony Annucci is the former acting commissioner of the New York
Department of Corrections and Community Supervision. 	But “[t]he proper
respondent in a habeas corpus petition under [Section] 2254 is the
superintendent of the facility where [the petitioner] is incarcerated.”
Mancia v. New York, No. 20-CV-719, 2020 WL 1140780, at *2 n.3 (S.D.N.Y. Mar.
6, 2020) (citing Rule 2(a) of the Rules Governing Section 2254 Cases).
Accordingly, the Clerk of Court is respectfully directed to substitute Brooke
Blaise, the superintendent of Coxsackie Correctional Facility, as the
defendant in this action, and update the caption accordingly.
2 Dunbar has moved facilities on several occasions since filing this
petition. 	The Court bases his current location on the Department of
Corrections’ Incarcerated Lookup. 	See https://nysdoccslookup.doccs.ny.gov/.
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was therefore inadmissible at trial. 	Because this claim is not
cognizable on habeas review, Dunbar’s petition is denied.
Background
A. 	State Court Proceedings
Dunbar was arrested in connection with an attempted
armed robbery of a Queens check-cashing business in April 2009.
Am. Pet. 1, ECF No. 19. 	The arrest occurred after New York City
Police Department officers — responding to a fellow officer’s
radio report about an ongoing robbery — stopped and searched a
black livery cab in which Dunbar was riding. 	Id. at 1-2.
1. 	The First Suppression Hearing
On December 18, 2009, Justice Robert C. McGann held a
pre-trial suppression hearing to determine whether the stop-and-
search comported with the Fourth Amendment. 	At the hearing,
Officer Francis Diliberto testified that he had received a radio
call describing an ongoing robbery. 	First Suppression Hr’g Tr.
5:9-22, ECF No. 12-6 beginning at SR 240. 	The suspect was a
Black man “with a blue and white striped shirt, and a black
handgun” who was riding in a “black livery with New Jersey
license plates” four blocks from Officer Diliberto’s location.
Id. at 6:2-25. 	Officer Diliberto and his partner located a car
matching that description, pulled it over, and handcuffed Dunbar
and the driver. 	Id. at 7:1-8:25. 	Diliberto then observed a
black baseball cap, blue and white shirt, and black handgun on
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the car floor. 	Id. at 9:18-10:2. 	The officers then escorted
Dunbar to the police precinct. 	Id. at 29:15-19.
Based on this testimony, Justice McGann found that
Diliberto had reasonable suspicion to initiate the vehicle stop.
Suppression Order 4, ECF No. 12-6 beginning at SR 357. 	He
further concluded that Officer Diliberto had lawfully seized the
evidence on the car floor pursuant the plain-view exception to
the warrant requirement. 	Id. at 4-5.
The jury ultimately found Dunbar guilty of second-
degree attempted robbery and fourth-degree criminal mischief,
and he received a sentence of seventeen years to life. 	On
appeal, the Second Department rejected Dunbar’s challenge to the
suppression finding, but granted him a new trial after
concluding that he had not been clearly informed of his Miranda
rights after his initial arrest. 	People v. Dunbar, 104 A.D.3d
198, 216-17 (N.Y. 2d Dep’t 2013).3 	Dunbar was eventually
convicted again and received the same sentence. 	See July 28,
2016 Trial Tr. 1373-1374, ECF No. 12-5 beginning at page 134 of
296; September 22, 2026 Sentencing Tr. 10, ECF No. 12-5
beginning at page 278 of 296.
3 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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2. 	The Second Suppression Hearing
Dunbar appealed his second conviction to the Second
Department. 	After rejecting most of Dunbar’s arguments, the
appellate court directed the trial court to conduct an
additional evidentiary hearing regarding the source of the
robbery report that was transmitted to Officer Diliberto.
People v. Dunbar, 178 A.D.3d 948, 950-51 (N.Y. 2d Dep’t 2019).
That hearing took place before Justice Joseph Zayas in
March 2020. 	Captain Aaron Edwards testified that while he was
on patrol on the afternoon of April 23, his radio dispatcher
directed him to a business at 40-20 108th Street. 	Second
Suppression Hr’g Tr. 19:8-20:11, ECF No. 12-8 beginning at SR
883. 	When he arrived, a Hispanic man approached him and said
the robbers were driving a “livery taxi with a Jersey license
plate[].” 	Id. at 20:17-24, 22:9-22. 	The man also said the
livery fled “southbound.” 	Id. 	Captain Edwards testified that
he then relayed this information to central dispatch. 	Id.
Based on this testimony and the evidence presented at
the prior suppression hearing, Justice Zayas concluded that the
radio transmission constituted reasonable suspicion to stop the
car to “investigate whether [Dunbar] was, in fact, the
perpetrator” of the robbery. 	Second Suppression Order 3 n.2,
16-17, ECF No. 12-8 beginning at SR 977. 	He also concluded,
like Justice McGann, that Officer Diliberto had properly seized
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evidence from the car under the plain-view exception. 	Id. at
17. 	The Second Department affirmed. 	People v. Dunbar, 188
A.D.3d 1247, 1248 (N.Y. 2d Dep’t 2020). 	The Court of Appeals
denied leave to appeal on February 26, 2021. 	People v. Dunbar,
165 N.E.3d 685 (N.Y. 2021).
B. 	Proceedings Before This Court
Dunbar filed his original Section 2254 petition on
January 13, 2022. 	The petition was timely, because it came
within one year of the Court of Appeals’ decision to deny leave
to appeal. 	28 U.S.C. § 2244(d)(1)(A).
One year later, Dunbar moved to amend his petition.
ECF No. 15. 	Specifically, he sought to supplement the petition
with a map that the government had produced to his counsel
during his first trial. 	Id. at 1. 	According to Dunbar, that
map showed that the livery had actually been traveling
“northbound,” and therefore contradicted Captain Edwards’
testimony that the car had fled “southbound.” 	Id. at 1-2; see
also Am. Petition 2, 13, ECF No. 19. 	The Court granted Dunbar’s
request, see Docket Order dated January 27, 2023, and he filed
the amended petition on March 7, 2023.
That petition, which incorporates the arguments from
the original petition, is now before the Court.
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Legal Standard
28 U.S.C. § 2254, as amended by AEDPA, governs an
application for a writ of habeas corpus from a person in custody
pursuant to the judgment of a state court. 	Under AEDPA, a
petitioner challenging a determination that was “adjudicated on
the merits” in state court must demonstrate that the state
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States,” 28 U.S.C.
§ 2254(d)(1), or was “based on an unreasonable determination of
the facts in light of the evidence presented in the State court
proceeding.” 	Id. § 2254(d)(2). 	The state court’s findings of
fact are “presumed to be correct,” and the petitioner can rebut
this presumption only “by clear and convincing evidence.” 	Id.
§ 2254(e)(1).
A legal conclusion is “contrary to” clearly
established federal law if it “contradicts the governing law set
forth in” the Supreme Court’s cases or “confronts a set of facts
that are materially indistinguishable from a decision” of the
Supreme Court, yet “arrives at a result different from [that]
precedent.” 	Price v. Vincent, 538 U.S. 634, 640 (2003). 	And a
decision involves an “unreasonable application” of federal law
“if the state court identifies the correct governing legal
principle” in the Supreme Court’s decisions but “unreasonably
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applies that principle to the facts of the prisoner’s case.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). It is the
petitioner’s burden to show that the state court applied the
governing principle in an objectively unreasonable manner.
Price, 538 U.S. at 641.
It is not enough that the federal court conclude, in
its independent judgment, that the state court’s decision was
incorrect or erroneous: 	“[A] petitioner must show that the
state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” 	Carmichael v.
Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Harrington v.
Richter, 562 U.S. 86, 103 (2011)).
Discussion
In his petition, Dunbar argues that the arresting
officers lacked reasonable suspicion for the vehicle stop, and
that evidence derived from that step therefore should have been
excluded at trial. 	Am. Pet. 6-7. Dunbar’s claim is not
cognizable on habeas review.
Fourth Amendment claims may not be raised on habeas
review if the state has provided the petitioner with “an
opportunity for full and fair litigation” of the claims. 	Stone
v. Powell, 428 U.S. 465, 482 (1976); see also Cardwell v.
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Taylor, 461 U.S. 571, 572-73 (1983). 	The Second Circuit has
held that, as a general matter, “New York state courts provide
facially adequate procedures to redress Fourth Amendment
violations.” 	Ethridge v. Bell, 49 F.4th 674, 686 (2d Cir.
2022).4 	Thus, to show that he was denied an adequate opportunity
to litigate these claims, Dunbar must establish an
“unconscionable breakdown” in the process. 	Capellan, 975 F.2d
at 70. 	This typically requires a “disruption or obstruction of
a state proceeding” so severe that it prevents state courts from
“conduct[ing] a reasoned method of inquiry into relevant
questions of fact and law.” 	Id. at 70-71.
Dunbar has not satisfied this high burden. 	The record
reveals that Dunbar had multiple opportunities to litigate his
Fourth Amendment claim in the New York courts. 	Between his
arrest and the filing of this petition, Dunbar received numerous
opportunities to fully litigate his Fourth Amendment claim:
(1) the pre-trial suppression hearing, (2) his first direct
appeal to the Second Department, (3) his second direct appeal to
the Second Department, (4) the post-conviction suppression
hearing, (5) his third direct appeal to the Second Department,
and (6) his appeal to the Court of Appeals. 	Nowhere in his
petition does he argue that these hearings were obstructed,
4 These procedures are spelled out in Section 710 of the New York
Criminal Procedure Law, which governs motions for the suppression of trial
evidence. 	See Capellan v. Riley, 975 F.2d 67, 70 n.1 (2d Cir. 1992).
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disrupted, or otherwise procedurally defective. 	He simply
argues that they reached the wrong result. 	Am. Petition 6. 	And
“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.” 	Capellan, 975 F.2d at 72.
The map that Dunbar appends to his amended petition
does not change the outcome. 	Dunbar does not argue that the
government suppressed the map or otherwise prevented his counsel
from relying on it at the suppression hearings, at trial, or on
appeal. 	Nor could he, given that he himself concedes that the
government produced the map. 	ECF No. 15, at 1. 	Rather, he
alleges that the map undercuts the testimony of one of the
government’s witnesses at the post-conviction suppression
hearing. Id. at 1-2; Am. Pet. 6.
There are two problems with that argument. 	First, as
already noted, a disagreement with the state court’s conclusion
as to the reliability of the suppression hearing witnesses is
not enough to show an “unconscionable breakdown” in its
proceedings for adjudicating Fourth Amendment claims. 	Capellan,
975 F.2d at 72.5 	Second, the map was never admitted into
5 In Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977), the Second Circuit
cited to a law review article discussing situations that might rise to an
“unconscionable breakdown” in the state’s process. 	See Cappiello v. Hoke,
698 F. Supp. 1042, 1050 (E.D.N.Y. 1988), aff’d, 852 F.2d 59 (2d Cir. 1988).
Those situations include “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.” 	Id. 	Here, Dunbar
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evidence, even though it was produced to Dunbar’s counsel. 	See
ECF No. 15, at 1. 	So, even if the Court were to review the
merits of the state court’s Fourth Amendment analysis, it could
not rely on the map in doing so, because review of factual or
legal claims under Section 2254 is “limited to the record that
was before the state court,” except where the “factual predicate
. . . could not have been previously discovered through the
exercise of due diligence.” 	Shoop v. Twyford, 596 U.S. 811, 819
(2022).
Conclusion
For the foregoing reasons, Dunbar’s petition for a
writ of habeas corpus is denied. 	The Clerk of Court is
respectfully directed to close this case. 	The state is directed
to serve a copy of this Order on Dunbar at his present place of
confinement and file proof of service.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	February 20, 2026
Brooklyn, New York
does not allege any such circumstances. 	While he argues that the map
undermines testimony offered by the government’s suppression hearing witness,
he does not go so far as to allege that the government knowingly offered
perjured testimony.
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