Carr v. Berbary, 1:06-cv-02724

Petitioner Adrian Carr, pro se, sought habeas relief under 28 U.S.C. § 2254 from a February 18, 2004 New York conviction for criminal possession of a weapon in the third degree, sentenced to seven years as a second felony offender.
At a suppression hearing, police observed gun visible in Carr’s car after stopping it for erratic driving; gun recovered after officer leaned into the car due to loud radio.
The state court denied the suppression motion, finding the stop and the entry into the car reasonable to control the scene.
On direct appeal, Appellate Division affirmed; leave to appeal to the Court of Appeals was denied.
Carr filed a state collateral attack under N.Y.C.P.L. § 440.30 alleging ineffective assistance of trial counsel and related claims; the state court denied, finding some claims procedurally barred.
Petition for federal habeas was filed May 9, 2006 and transferred to this court; respondent argued both Fourth Amendment bar (Stone) and exhaustion/waiver issues; petitioner also raised ineffectiveness claims in post-conviction and reply filings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Fourth Amendment claim reviewable in federal habeas?	Carr argues suppression evidence was obtained unlawfully.	State claims Stone v. Powell bars federal review after full state litigation.	Barred under Stone v. Powell; review denied.
Ineffective assistance of trial counsel unexhausted/procedurally defaulted?	IAC claim for failure to argue lack of probable cause at suppression is viable.	Claim unexhausted; procedurally barred.	Procedurally defaulted; not reviewable on the merits.
Ineffective assistance of appellate counsel unexhausted; can coram nobis exhaust?	Appellate counsel failed to inform right to certiorari; should be reviewed.	Claim unexhausted; coram nobis potential available pathway but not yet pursued.	Claim deemed exhausted but procedurally barred; denied on the merits as meritless.

Stone v. Powell, 428 U.S. 465 (U.S. 1976) (barred federal review of Fourth Amendment claims where state courts provided full and fair opportunity to litigate)
Gates v. Henderson, 568 F.2d 830 (2d Cir. 1977) (en banc rule aligning with Stone on habeas review of Fourth Amendment claims)
Capellan v. Riley, 975 F.2d 67 (2d Cir. 1992) (state mechanism facially adequate for Fourth Amendment challenges)