Opinion
08 Civ. 4736 (LTS) (KNF).
February 20, 2009
REPORT and RECOMMENDATION
I. INTRODUCTION
Before the Court is Richard Pierce's ("Pierce") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. In his petition, Pierce contends his confinement by New York State is unlawful because his trial counsel rendered ineffective assistance to him by: (1) failing to "make a meritorious argument" for dismissal of his indictment on speedy trial grounds, pursuant to New York Criminal Procedure Law ("CPL") § 30.30(4)(c), and failing to address CPL § 30.30(4)(e), the provision the prosecution relied upon in support of its position that the petitioner's right to a speedy trial was not violated; and (2) "misadvis[ing] [Pierce] that he could appeal the denial of the CPL § 30.30 [issue] notwithstanding his plea."
Respondent opposes the petitioner's application, which is analyzed below.
II. BACKGROUND
In July 2001, the petitioner entered, unlawfully, St. Patrick's Cathedral, in Manhattan, and stole money from the rectory. In September 2001, New York City detectives interviewed the petitioner in a Maryland state prison-where Pierce was serving a previously imposed sentence — and the petitioner confessed to the burglary. On March 21, 2002, while the petitioner was incarcerated in Maryland, the petitioner was indicted, by a New York County grand jury, for two counts of second-degree burglary, in violation of New York Penal Law ("NYPL") § 140.25(2).
On May 8, 2002, the prosecution lodged a detainer against the petitioner, pursuant to CPL § 580.20, demanding his transfer from Maryland to New York. Pierce appeared in New York County, for arraignment, on November 13, 2002.
On February 7, 2003, the petitioner's counsel filed a motion to dismiss the indictment ("§ 30.30 motion"), pursuant to CPL § 30.30(1)(a), and argued the delay between filing the indictment and arraigning the petitioner violated Pierce's right to a speedy trial. Specifically, Pierce's counsel alleged that 237 days had elapsed "from the filing of the indictment on March 21, 2002, to the [petitioner's] arraignment on November 13, 2002, [and] should be charged to the [prosecution]. . . ." Pierce's counsel maintained the following periods were also chargeable to the prosecution: (1) the 27-day period, from November 13, 2002, to December 10, 2002, during which the case was adjourned for "defense motions"; (2) the 35-day period, from December 10, 2002, to January 14, 2003, during which the case was adjourned to permit the prosecution to respond to Pierce's omnibus motion; and (3) the 14-day period, from January 14, 2003, to January 28, 2003, when proceedings were adjourned because Pierce's counsel was engaged in an unrelated trial.
In March 2003, the New York State Supreme Court, New York County, denied the petitioner's motion to dismiss the indictment. The court noted that the prosecution was required, under the CPL, to "announce [] readiness fo[r] trial within six months of the commencement of a crimina[l] proceeding where the defendant is accused of a felony." In support of its finding that the prosecution had not abrogated this duty, the court found: (1) the prosecution's failure to file a detainer, until May 8, 2002, was an undue delay. The court explained that, a 14-day period, from the petitioner's indictment, constituted an adequate period of time to file the detainer and, therefore, the period from March 21, 2002, to April 4, 2002, was excludable, but the prosecution was charged with the 34-day period, from April 3, 2002, to May 8, 2002; (2) the delay, from May 8, 2002, to November 13, 2002, caused by Pierce's incarceration in Maryland, was excludable, pursuant to CPL § 30.30(4)(e); (3) the prosecution announced its readiness for trial on November 13, 2002, and the adjournments, from November 13, 2002, to January 28, 2003-based upon the preparation and filing of Pierce's § 30.30 motion and the issuance of the court's decision thereon-were excludable; (4) the prosecution was chargeable with one day-from January 28, to January 29, 2003-between the issuance of the court's January 28, 2003 decision on the § 30.30 motion, and the prosecution's filing of a Certificate of Readiness for Trial, on January 29, 2003; (5) the period, from January 29, 2003, to February 25, 2003-when the matter was adjourned for preparations for pretrial hearings and the trial-was excludable; and (6) the period, from February 7, 2003, through March 18, 2003, during which the petitioner's motion to dismiss the indictment was pending, was excludable. Altogether, the court found 35 days were chargeable to the prosecution, and, therefore, the petitioner's motion to dismiss the indictment, on speedy trial grounds, was denied.
In May 2003, Pierce filed a motion to dismiss his indictment, pursuant to CPL § 580.20, contending: (1) the prosecution had violated his right to a speedy trial; and (2) the method for determining "tolling" differed between CPL § 30.30 and CPL § 580.20, such that the delays alleged in his § 30.30 motion, were chargeable to the prosecution, under CPL § 580.20. Pierce's motion was denied.
In July 2003, Pierce entered a guilty plea to one count of a reduced charge: attempted burglary in the second degree, to satisfy fully the charges pending against him. Subsequently, a sentencing hearing was held. At the hearing, the sentencing judge noted that Pierce had filed a pro se motion requesting the indictment be dismissed, "in the interest of justice," and leniency in sentencing. During the sentencing hearing, Pierce's attorney "adopt[ed]" Pierce's pro se motion. However, the court denied the motion. Before Pierce was sentenced, his attorney expressed the view to his client and the court, that Pierce's plea of guilty did not prevent Pierce from appealing from the court's speedy trial and detainer determinations, and the sentencing judge responded that Pierce had "preserved those [issu]es" for appellate review. Thereafter, Pierce was sentenced, as a second violent-felony offender, to: (i) a determinate term of five years incarceration, to be served consecutively to Pierce's ongoing term of incarceration in Maryland; and (ii) a five-year term of post-release supervision.
In August 2003, Pierce filed a CPL § 440.10 motion, in which he asserted: (1) the judgment of conviction was procured by duress, misrepresentation, and fraud by the prosecution and arresting officer; (2) his state and federal constitutional rights were violated; (3) he was induced to plead guilty by the District Attorney's promise that his sentence would run concurrently with, not consecutively to, his Maryland sentence; (4) his sentence should be modified to run concurrently with his Maryland sentence; (5) the sentencing court "misapprehen[ded]" its discretion to impose a concurrent sentence; (6) he is entitled to "specific performance" of his plea offer, which would require that his sentence run concurrently with his Maryland sentence; (7) his right to a trial, within 180 days, pursuant to CPL § 580.20, was violated; and (8) his right to a speedy trial, pursuant to CPL § 30.30, was violated. The prosecution opposed Pierce's motion.
In September 2003, the motion was denied. The petitioner applied for leave to appeal from that determination to the New York State Supreme Court, Appellate Division, First Department. In December 2008, leave was granted, and the petitioner's appeal of his CPL § 440.10 motion was later consolidated with his direct appeal from the judgment of conviction.
On direct appeal, Pierce argued his trial counsel rendered ineffective assistance to him by: (1) failing to move to dismiss his indictment, pursuant to CPL § 30.30, on "proper grounds"; and (2) misadvising Pierce an appeal from the denial of his § 30.30 motion could be made, notwithstanding his guilty plea. Pierce explained that his counsel-in response to the prosecution's contention that Pierce's speedy trial rights were not violated, because the delay in arraigning Pierce was caused by Pierce's incarceration in another jurisdiction — "should have argued that the period in question was not excludable under CPL § 30.30(4)(e) because, under that provision, [the prosecution was] required to show [its] delay in announcing readiness [for trial] resulted from [Pierce's] detention in another jurisdiction." Pierce argued his incarceration in Maryland did not prevent the prosecution from announcing its readiness for trial. The prosecution urged the Appellate Division to deny Pierce relief; it argued Pierce received effective assistance from his trial counsel.
In March 2007, the Appellate Division affirmed Pierce's judgment of conviction unanimously. See People v. Pierce, 38 A.D.3d 262, 831 N.Y.S. 2d 173 (App.Div. 1st Dep't 2007). The Appellate Division found that Pierce was not deprived of effective assistance by his counsel since: (1) had Pierce's attorney raised "an appropriate argument addressing CPL 30.30(4)(e)," it "would have been futile because, as the motion court found, the period of delay between the filing of the indictment, on March 21, 2002, and [Pierce's] arraignment on the indictment[,] on November 13, 2002[,] was excludable except for 34 days," and the prosecution "satisfied [its] obligation under [CPL 30.30]"; and (2) given Pierce's "attorney's erroneous advice that despite a guilty plea, an order denying a statutory speedy trial motion can be reviewed on appeal," Pierce did not claim and the record did not suggest "that the erroneous advice affected his decision to plead guilty." Id. at 262-63, 831 N.Y.S. 2d at 174. The petitioner applied for leave to appeal, from the Appellate Division's determination, to the New York Court of Appeals. On May 25, 2007, that application was denied. See People v. Pierce, 8 N.Y.3d 989, 838 N.Y.S.2d 492 (2007).
The instant application for a writ of habeas corpus followed.
III. DISCUSSION
"In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.
To prevail on an ineffective assistance of counsel claim, a petitioner must show that: (1) "counsel's performance was deficient" so as to fall below an objective standard of reasonableness; and (2) counsel's "deficient performance prejudiced the defense" such that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065.
Pierce maintains his trial counsel rendered ineffective assistance to him by failing to move to dismiss the indictment, pursuant to CPL § 30.30 on "proper grounds," by making citation to CPL § 30.30(4)(e). CPL § 30.30 provides that, inter alia, a motion to dismiss or reduce an indictment must be granted, "where the people are not ready for trial within . . . six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony." CPL § 30.30(l)(a). Pursuant to CPL § 30.30(4)(a), "[i]n computing the time within which the people must be ready for trial pursuant to subdivision[] one . . ., the following periods must be excluded: (1) a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . pre-trial motions . . . and the period during which such matters are under consideration by the court," CPL § 30.30(4)(a); (2) "the period of delay resulting from the absence or unavailability of the defendant," and a "defendant must be considered unavailable whenever his location is known but his presence for trial cannot be obtained by due diligence," CPL § 30.30(4)(c)(i); and (3) "the period of delay resulting from detention of the defendant in another jurisdiction provided the district attorney is aware of such detention and has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial," CPL § 30.30(4)(e).
In the case at bar, in ruling on the petitioner's § 30.30 motion, the trial court found the prosecution exercised due diligence, and made reasonable efforts, to secure Pierce's presence in New York, despite his detention in Maryland pursuant to a previous conviction. This finding is presumed correct, unless Pierce rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). The petitioner has not presented any arguments or evidence establishing that the trial court's finding, that the prosecution was diligent and exercised reasonable efforts to secure his presence in New York, is not correct. Consequently, the presumption, that the trial court's factual finding is correct, remains unrebutted and must be accepted in this habeas corpus proceeding. See id.
Under CPL § 30.30(4)(e), delay "resulting from detention of the defendant in another jurisdiction" is excludable from the computation of the six-month period within which the prosecution must be ready for trial under CPL § 30.30. The petitioner does not contend he was not detained by Maryland from the time of his indictment by a New York County grand jury through the time he was brought to New York for his arraignment, nor does he identify specific arguments his counsel should have raised pursuant to CPL § 30.30(4)(e), or any prejudice flowing from his counsel's failure to address CPL § 30.30(4)(e). Pierre's assertion, that his counsel was ineffective for failing to argue the petitioner was denied a speedy trial, pursuant to CPL § 30.30(4)(e), is meritless. See United States v. Arena, 180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless argument does not amount to ineffective assistance"). In addition, the state court found properly that the prosecution was not chargeable for post-arraignment adjournments occasioned either by motions filed by Pierce's trial counsel or the reasonable period that elapsed while the court considered those motions. See CPL § 30.30(4)(a) (excluding delay resulting from pre-trial motions and the period during which such motions are under consideration by the court).
With regard to the petitioner's allegation, that his counsel rendered ineffective assistance to him-by misinforming Pierce that he could appeal from the denial of his speedy trial motion notwithstanding his guilty plea-although the record and the governing law support the petitioner's claim, that his counsel misinformed him, (see NYPL § 70.25(2-a); the petitioner does not allege, nor does the record suggest, that a reasonable probability exists "that, but for counsel's error[], [Pierce] would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 371 (1985).
The record establishes that Pierce's counsel negotiated a favorable plea bargain agreement for him, as Pierce was indicted for two counts of second-degree burglary, in violation of NYPL § 140.25(2), and was allowed to plead guilty to one count of a reduced charge, attempted second-degree burglary. The plea agreement led to a reduced sentencing exposure, since Pierce-who was sentenced as a second violent-felony offender-was eligible to be sentenced to a maximum term of 15 years imprisonment, to run consecutively to his Maryland sentence, if he proceeded to trial and was convicted for two counts of second-degree burglary, see NYPL § 140.25 (stating that second-degree burglary is a class C felony); NYPL § 70.04(3)(b) (providing that a second violent-felony offender convicted of a class C felony may be sentenced to a determinate term of at least 7, but not more than 15 years, imprisonment); NYPL § 70.25(2-a) (providing that, when a sentence is imposed, pursuant to NYPL § 70.04, and the defendant is subject to an "undischarged" term of imprisonment that was imposed previously, the court "must impose a sentence to run consecutively with respect to such undischarged sentence"). However, pursuant to his plea bargain agreement, Pierce was sentenced to a term of five years imprisonment. Since Pierce does not contend, in his habeas corpus petition, he would have "insisted on going to trial" rather than plead guilty, and the record establishes that Pierce received a highly favorable sentence by pleading guilty, Pierce's claim, that his counsel was ineffective for misinforming him about his right to appeal from the disposition of his speedy trial motion, does not rise to the level of a Strickland violation. This is so because Pierce has not satisfied the "prejudice requirement" imposed by Strickland.See Hill, 474 U.S. at 60, 106 S. Ct. at 371 (finding that the petitioner's claim that his counsel provided erroneous advice about his eligibility for parole was insufficient to satisfyStrickland's "prejudice" requirement, since the petitioner "did not allege in his habeas petition that, had counsel correctly informed him . . ., he would have pleaded not guilty and insisted on going to trial").
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Pierce's petition for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also, Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura T. Swain, 500 Pearl Street, Room 755, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).