Opinion
02-CV-5489 (JBW) 0.3-MISC-0066 (JBW)
October 8, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims,
I. Facts and Procedural History
Petitioner and a co-defendant were arrested in 1988 and charged, inter alia, with raping and robbing a seventeen-year-old woman who was five months pregnant at the time. Petitioner jumped bail in July 1990 and was not re-apprehended until September 1996, over six years later. He was convicted upon a plea of guilty to rape in the first degree (two counts), sodomy in the first degree (four counts), sexual abuse in the first degree (four counts), kidnaping in the second degree, robbery in the first degree, robbery in the second degree (two counts), robbery in the third degree, grand larceny in the fourth degree, assault in the second degree, assault in the third degree, criminal possession of a weapon in the fourth degree, and unlawful imprisonment in the second degree under one indictment, and bail jumping in the first degree under another indictment. He was sentenced to a total of 18 to 36 years in prison. As part of his plea agreement he waived his right to appeal his conviction.
In the meantime, all of the charges against petitioner's co-defendant were dismissed because his statutory right to a speedy trial was violated. See N.Y. Crim. Pro. Law § 30.30 (indictment must be dismissed if prosecution is not ready for trial within "six months of the commencement of a criminal action wherein a defendant is accused of one or mom offenses, at least one of which is a felony").
Petitioner's appellate counsel filed an Anders brief before the Appellate Division, seeking to be relieved as counsel because he deemed there to be no nonfrivolous issues to be raised on direct appeal. The motion was granted and the Appellate Division assigned petitioner new counsel, who argued that petitioner's statutory and constitutional speedy trial rights had been infringed, that the trial court erred by not holding an evidentiary hearing on petitioner's speedy trial claim, and that trial counsel was ineffective with respect to presenting and preserving petitioner's speedy trial claim. The Appellate Division affirmed petitioner's conviction, Leave to appeal to the New York Court of Appeals was denied,
A motion to vacate judgment was denied by the trial court on the ground that the issues raised could have been raised on the still-pending direct appeal. Leave to appeal this decision to the Appellate Division was denied,
In his application for a writ of habeas corpus, petitioner claims (1) that he was denied a speedy trial in violation of his statutory and constitutional rights; (2) that the trial court erred in failing to conduct a hearing on the speedy trial issue; and (3) that his trial counsel provided him with ineffective assistance with respect to the speedy trial issue.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a slate prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 R3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts," Williams v. Taylor, 529 U.S, 362, 412-13 (2000) (O'Connor, L, concurring and writing for the majority in this part). Under the Unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable," Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Frauds S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted),
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1),
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 R2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following;
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest,Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n, 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 R3d 721, 724-25 (2d Cir. 1996), When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr. Svcs., 235 E3d 804, 810 (2d Cm 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at * 15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed," Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694), ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 P.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689,
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and docs not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 P.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
VI. Certificate of Appealability
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-Elv. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)," See also Shabazz v. Artuz, No. 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit"),
VII. Analysis of Claims
Petitioner's claims were presented to the state courts and are exhausted, In its affirmance of petitioner's conviction, the Appellate Division stated simply, "We reject the defendant's contention that his constitutional right to a speedy trial was violated" and that petitioner's "remaining contentions are without merit." People v. Gorman, 737 N.Y.S.2d 546, 547 (App.Div. 2002). Review proceeds under the deferential standards of AEDPA.
A
Petitioner first claims that he, like his co-defendant, was denied a speedy trial in violation of his statutory rights, New York State provides a defendant with statutory protections of his or her speedy trial rights. Pursuant to section 30.20 of the New York Criminal Procedure Law, "After a criminal action is commenced, the defendant is entitled to a speedy trial," This rather precatory language is given substance in section 30.30 of the statute, which sets forth a six-month time-period in which to begin the trial, detailing precisely what time may and may not be counted toward the six months. See, e.g., id. § 30.30(4)(a) (excluding from calculation "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to . . . [a] demand to produce; request for a bill of particulars; pre-trial motions"); id. § 330.3Q(4)(b) (excluding "the period of delay resulting from a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel"); § 30.30(4)(c)(i) (excluding "the period of delay resulting from the absence or unavailability of the defendant" and prescribing that a defendant "must be considered absent whenever his location is unknown and he is attempting to avoid apprehension or prosecution, or his location cannot be determined by due diligence").
Petitioner was indicted on May 27, 1988, The prosecution by statute was to be ready to proceed at trial within six calendar months, or in the instant case, 184 days, See People v. Osgood, 417 N.E.2d 507 (N.Y. 1980), Petitioner seeks to hold the state responsible for the following time periods:
• From the filing of the indictment on May 27, 1998 until petitioner's arraignment on June 13, 1988, Total of 17 days.
• From the arraignment on June 13, 1988 until the prosecution's acknowledgment that it was ready to proceed to trial on July 5, 1988. Total of 32 days,
• From October 20, 1988 until November 10, 1988, due to adjournments that the prosecution could not establish were made by the request or with the acquiescence of the defendants. Total of 42 days.
• From the dismissal of the first indictment on February 8, 1989 until the filing of the second indictment on April 7, 1989, Total of 57 days.
• From the filing of the second indictment on April 7, 1989 until petitioner's arraignment on April 20, 1989. Total of 13 days.
• From the arraignment on April 20, 1989 until the prosecution's acknowledgment that it was ready to proceed to trial on May 4, 1989. Total of 14 days,
• From June 26, 1989 until August 21, 1989, the period from his co-defendant's speedy trial motion until the prosecution's response to the motion. Total of 57 days.
Toting up the period of lime that petitioner contends is attributable to prosecution delay, a total of 232 days passed from the time of his indictment until Angust121, 1989 (which is nearly a year before petitioner absconded). Because the state was required to try him within 184 days from his indictment, he contends that at least as of August 21, 1989, his statutory right to a speedy trial was infringed.
Petitioner's co-defendant made essentially the same claim and had the charges against him dismissed by the Supreme Court, The situation is different for petitioner, however. Contrary to his assertion, it would be improper to attribute responsibility for the final 57-day period of delay to the prosecution. With respect to petitioner's co-defendant, 36 of the 57 days were attributed to the prosecution because of the prosecution's unreasonable delay in responding to a motion to dismiss on speedy trial grounds. Counsel for petitioner's co-defendant indicated Co the court when he made the speedy trial motion that petitioner's counsel, who was not present at the hearing, wished to join in the motion. Apparently petitioner's counsel never sufficiently indicated to the court or to the prosecution that petitioner in tact wished to join in the motion, since the prosecution did not respond to a speedy trial motion from petitioner and the trial court made no ruling on such a motion. Petitioner has not provided this court with any documentation of his alleged effort to press the claim in the state court. He has accordingly not demonstrated that he was subjected to any delay on the part of the prosecution with respect to the pendency of a speedy trial motion,
At any rate, petitioner subsequently moved twice for dismissal on speedy trial grounds and the motion was explicitly denied by the trial court each time. Under these circumstances, this court cannot say that the state's speedy trial rules were unrespected. Speedy trial rules arc very sensitive to administrative problems in the courts, including the sometimes unpredictable availability of attorneys and co-defendants, Confusion often reigns. The state trial courts must have discretion to implement their rules in a just and efficient manner, respecting the defendant's constitutional privilege to be tried expeditiously but also honoring society's interest in adjudicating the guilt or innocence of an alleged criminal, The trial court's conclusion that there was no violation of the state's statutory rules governing speedy trials deserves great deference, as does the Appellate Division's conclusion that there was no violation. Moreover, petitioner's plea of guilty would ordinarily be deemed to have waived any statutory speedy trial violation, See People v. Love, 654 N.Y.S.2d 149, 149 (App.Div. 1997) ("plea constitute[s] a forfeiture of [defendant's] statutory speedy trial claims"). Habeas corpus relief on this ground is not warranted.
B
The right to a speedy trial is also guaranteed by the Sixth Amendment. See U.S. Const. amend, VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ."). This right is fundamental and thus imposed on the states by the Due Process Clause of the Fourteenth Amendment, Petitioner must first demonstrate that he was presumptively prejudiced by the delay. See Doggett v. United States, 505 U.S. 647 (1992). A delay of many months is sufficient to establish presumptive prejudice. See, e.g., United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992) (noting "a general consensus that a delay of over eight months meets this standard"). Next, determination of whether there has been a constitutional violation requites this court to consider "(1) whether the `delay before trial was uncommonly long' . . .; (2) `whether the government or the criminal defendant is more to blame for that delay;' (3) `whether, in due course, the defendant asserted his right to a speedy trial' . . .; and (4) the prejudice sustained by the defendant as a result of the delay. United States v. Gutierrez, 891 R Supp. 97, 100 (KD.N.Y. 1995) (quoting Doggett).
There is no merit to petitioner's claim that his constitutional right to a speedy trial was violated. As an initial matter, by pleading guilty he would ordinarily be understood to have waived his right to assert this claim. See United Stales v. Doyle, 348 P.2d 715, 718-19 (2d Cir. 1965) (speedy dial claims are waived by guilty plea); but see People v. Seaberg, 541 N.E.2d 1022, 1025 (N.Y. 1989) (noting that New York courts deem constitutional speedy trial claims unwaivable). At any rate, the claim is wholly without merit. Almost the entire period of the delay from indictment to trial was due to petitioner's willful absence of over six years. During that period petitioner did not, of course, seek to assert his speedy trial rights. He also suffered no prejudice from the delay; there is no reason to believe that his plea of guilty was motivated by any problems stemming from the long delay in being brought to trial — problems that would, at any rate, have been almost entirely of petitioner's own creation. Habeas corpus relief on this ground is not warranted.
C
Petitioner also claims that the trial court erred in failing to conduct a hearing on the speedy trial issue. Petitioner has called this court's attention to no clearly established federal law as determined by the Supreme Court establishing his light to a hearing on a speedy trial claim, Even if there were such precedent, petitioner cannot show that he was harmed by the failure of the court to hold a hearing, since the delay was occasioned almost entirely by petitioner, Moreover, the state made extraordinary efforts to locate petitioner for years. See Respondent's Aff. in Opposition to Petition for a Writ of Habeas Corpus at 3-7. Habeas corpus relief on this ground is not warranted.
D
Finally, petitioner claims that his trial counsel provided him with ineffective assistance with respect to the speedy trial issues. As discussed above, petitioner did not have a meritorious claim with respect to either his statutory or his constitutional speedy trial rights. Trial counsel cannot be deemed ineffective for failing to raise meritless claims. Habcas corpus relief on this ground is not warranted.VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner1 s claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.
Brooklyn, N.Y.