Opinion
01 Civ. 5243 (JSM).
March 6, 2002
OPINION AND ORDER
Petitioner Todd Mance was convicted of murder in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree, after a jury trial in the New York County Supreme Court. He was sentenced to an indeterminate prison term of twenty-two years to life on the murder conviction, and seven and one-half to fifteen years, and three and one-half to seven years on the two weapons possession convictions.
Petitioner, who is currently incarcerated, seeks a writ of habeas corpus. He alleges that he was denied effective assistance of counsel in the state court, in violation of his Sixth and Fourteenth Amendment rights, because his attorney failed to move to dismiss the indictment against him based on preindictment delay, despite the fact that, according to Petitioner, New York law mandated dismissal of the indictment based solely on the lengthy delay that occurred between the commission of the crime and his indictment.
The State Court Proceedings
On July 28, 1988, Petitioner shot Curtis Bunn in the head in a parking lot at the St. Nicholas Housing Projects in Manhattan, after an argument over a $50 bet. Bunn died the next day. The police collected evidence and questioned witnesses at the scene of the crime, and continued to investigate over the following days, quickly concluding that Petitioner was the sole suspect.
In October 1988, the New York City Police Department was informed that Petitioner had been arrested in South Carolina on a drug charge, and transmitted an arrest warrant to South Carolina to be lodged against him. On April 13, 1989, Petitioner was sentenced in South Carolina to a term of twelve and one-half to twenty-five years for conspiracy to sell drugs. In light of this sentence, the New York County District Attorney's office indicated that it was "not desirous of further prosecution" and the Police Department requested an "exceptional clearance" to close the investigation.
In May 1993, Petitioner was granted early release from prison in South Carolina. Subsequently, on May 14, 1993, after Bunn's brother reported to the police that he had seen Petitioner on the street in New York City, Petitioner was arrested. On June 15, 1993, he was charged with Bunn's homicide in New York County Indictment Number 5043/93. That indictment was dismissed on the motion of the District Attorney after it was discovered that the witness who had testified in the Grand Jury had lied when she said that she had seen Petitioner shoot Bunn. On March 15, 1994, Petitioner was again charged with the homicide in Indictment Number 1988/94. Petitioner's trial commenced before Justice Franklin R. Weissburg and a jury on June 5, 1995. Petitioner was convicted on June 15, 1995, and he filed a timely Notice of Appeal.
On July 27, 1995, Petitioner's appellate counsel filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10(h), claiming that his trial counsel's performance was constitutionally defective because counsel failed to move for dismissal of the indictment on the basis of the extensive preindictment delay in his case, despite the likelihood, according to Petitioner, that such a motion would have been granted. Petitioner's brief in support of that motion was prepared by newly appointed counsel and sets out in detail both the facts and the law in support of Petitioner's position. On August 10, 1998, before the People filed a response to Petitioner's C.P.L. § 440.10 motion, Justice Edwin Torres summarily denied the motion. On August 28, 1998, Petitioner applied for leave to appeal from that summary order. The People also submitted papers in opposition to this application, which3 was denied by the Appellate Division, First Department, on November 17, 1998.
In addition to his C.P.L. § 440.10 motion, which was prepared by appellate counsel, Petitioner made several pro se motions with respect to the preindictment delay in his case. On June 14, 1995, Petitioner filed a pro se motion in the state court seeking a writ of habeas corpus on the ground that he had been denied a speedy trial. This motion (which was filed under Indictment No. 5043/93) was denied on August 1, 1995. He also filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30 on September 5, 1995. A hearing was held on this motion on May 6, 1996, and the motion was denied on June 4, 1996.
On direct appeal of his conviction to the Appellate Division, Petitioner's appellate counsel again argued that his trial counsel provided constitutionally inadequate representation by failing to seek dismissal of the indictment on the basis of the alleged violation of Petitioner's right to a prompt indictment. In fact, Petitioner's Brief on appeal deals with that issue alone, and does not attempt to challenge the finding of Petitioner's guilt in any way. The People, in turn, answered at length with respect to the ineffectiveness of counsel issue, although arguing that the issue was not properly before the Court. Petitioner's Reply Brief dealt in Point I with the contention that the ineffectiveness issue was not properly before the Court on appeal, and then further argued the merits of the claim in Point II.
The Appellate Division, First Department, unanimously affirmed Petitioner's conviction in an opinion that stated:
To the extent that defendant's ineffective assistance of counsel claim rests on factual assertions contained in his unsuccessful CPL 440.10 motion, those assertions are not properly before this Court because leave to appeal was denied. One the totality of the existing record, we conclude that defendant received meaningful representation. Trial counsel's failure to move for dismissal of the indictment based on preindictment delay does not require a finding of ineffectiveness, since defendant has not established that such a motion had any likelihood of success (see People v. Singer, 44 N.Y.2d 241; People v. Taranovich, 37 N.Y.2d 442). While the delay was lengthy, the crime was extremely serious, defendant was not incarcerated on this charge during the period in question, and there is no evidence of bad faith or prejudice.
People v. Mance, 269 A.D.2d 188, 703 N.Y.S.2d 708 (1st Dep't 2000) (some citations omitted).
Petitioner filed a subsequent motion for leave to appeal to the Court of Appeals, which was denied on June 16, 2000. People v. Mance, 95 N.Y.2d 836, 713 N.Y.S.2d 143 (2000).
The Standard of Review
This petition was filed after the effective date of the amendments to 28 U.S.C. § 2254(d), contained in the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1218 (1996). Those amendments provide that a writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the result "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the 5 evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2); Lainfiesta v. Artuz, 253 F.3d 151 (2d Cir. 2001).
To determine whether the deference dictated by this provision applies to the state court's denials of the Petitioner's claim of ineffective assistance of counsel, it is necessary to determine whether that claim was adjudicated by the state court "on the merits", in light of the summary dismissal of Petitioner's C.P.L. § 440.10(1)(h) motion, and the Appellate Division's statement that the factual allegations of that motion were not properly before it on Petitioner's direct appeal of his conviction.
In Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001), the Second Circuit held that "'[a]djudicated on the merits' has a well settled meaning: a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." 241 F.3d at 311. It went on state that "'[n]othing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process." Id.; see also Parron v. Quick, 869 F.2d 87, 90 (2d Cir.), cert. denied, 493 U.S. 860 (1989) (When a defendant presents a claim of denial of a constitutional right to the Appellate Division, and the Appellate Division affirms without opinion, the federal court should presume that the Appellate Division considered the constitutional claim and decided it on the merits, and did not base its summary affirmance on a procedural default.(citing Hawkins v. LeFevre, 758 F.2d 866, 871 (2d Cir. 1985)).
Thus, a summary order could well constitute an adjudication on the merits, triggering the "unreasonable application" test of § 2254(d)(1). However, § 440.10(2)(b) states that the court must deny a motion to vacate a judgment when that judgment is, "at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal." Petitioner's direct appeal of the judgment of conviction was pending at the time his § 440.10 motion was made, so, notwithstanding Petitioner's contention that the record on the direct appeal did not contain adequate information about the reasons for the preindictment delay, it certainly is possible that the § 440.10 court determined that sufficient facts did appear in the record to permit review of the ineffectiveness claim on direct appeal, and dismissed on procedural, rather than substantive grounds. Indeed, with respect to the claim made here, that the length of the delay alone required dismissal, without a showing of prejudice, the appellate record contained all of the facts necessary for a decision on the merits. The denial of Petitioner's application for leave to appeal that dismissal sheds no additional light on this issue, stating only that "there is no question of law or fact presented which ought to be reviewed by the Appellate Division."
Petitioner argues that the decision of the Appellate Division on his direct appeal also should not be accorded the deference ordinarily given an adjudication on the merits because that court "implicitly found that petitioner could not make out his claim of ineffective assistance of counsel because it was precluded from considering the facts asserted in the 440.10 motion, and affirmed the conviction." (Memorandum in Support of Petition for Writ of Habeas Corpus at 14.) However, it is inaccurate to state that the Appellate Division found that the Petitioner could not make out his claim "because it was precluded from considering the facts asserted in the § 440.10 motion." (emphasis added). Quite the contrary, although the Appellate Division acknowledged that factual assertions contained in the 440.10 motion were not properly before it, it found on the existing record that "Trial counsel's failure to move for dismissal of the indictment based on preindictment delay does not require a finding of ineffectiveness, since defendant has not established that such a motion had any likelihood of success." People v. Mance, 269 A.D.2d 188, 703 N.Y.S.2d 708 (1st Dep't 2000) (emphasis added). The court then cited People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17 (1978), and People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79 (1975), and balanced the factors relevant to a motion to dismiss on the basis of excessive preindictment delay. ("While the delay was lengthy, the crime was extremely serious, defendant was not incarcerated on this charge during the period in question, and there is no evidence of bad 8 faith or prejudice.") 269 A.D.2d 188, 703 N.Y.S.2d 708 (1st Dep't 2000).
The additional evidence that was not before the Appellate Division on Petitioner's direct appeal, the police Complaint Follow Up form dated April 13, 1989, states:
2) Todd Mance fled to South Carolina was arrested in October of 1988 for Drugs and weapons possessions. On 10/4/88 an Arrest Warrant Docket #8N097382 was sent to So. Beaufort South Carolina Sheriff's office. Mance, Todd sentenced to 12= /25 yrs on 4/13/89 for Conspiracy to Sell Drugs.
3) Assistant District Attorney John Jordan, who originally issued the arrest warrant, was conferred with and he said in view of the sentence imposed by the Beaufort South Carolina Courts, his office would not be desireous [sic] of further prosecution of this case.
4) Accordingly this investigator is requesting that this case be cleared by exceptional clearance.
(Exhibit D to the Petition for a Writ of Habeas Corpus)
This document demonstrates, at most, that the People were negligent in pursuing their case against Petitioner, and, in fact, it could well be interpreted as presenting a valid reason for the delay. The decision was not, as Petitioner contends, that the People would wait to seek to indict Petitioner until after he finished serving his sentence in South Carolina, but rather that the People would not seek to prosecute at all, given the length of the sentence that Petitioner had received in South Carolina. It would not be unreasonable for the District Attorney to conclude that there was no point in bringing another prosecution against a suspect (especially a suspect against whom 9 the People had only a circumstancial case) who already was going to be in prison for as long as the sentence they would hope to have imposed after trial on the charges under consideration.
Since this document established a reasonable good faith basis for the original decision to refrain from seeking an indictment, which was not revisited until after Petitioner's early release from his South Carolina sentence, the fact that it was not before the Appellate Division on Petitioner's direct appeal is of no consequence.
Thus, the Appellate Division's decision affirming Petitioner's conviction on direct appeal should be regarded as an "adjudication on the merits", and entitled to the deference required by 28 U.S.C. § 2254(d).
Petitioner's Claim of Ineffective Assistance
Evaluating Petitioner's claim as required in light of that deference, it is clear that a claim of ineffective assistance of counsel is based on federal law "clearly established" by the United States Supreme Court, which has stated repeatedly that a criminal defendant's right to the assistance of counsel is necessary to protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2063 (1984); Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 1511-12 (2000). Unquestionably, the right to counsel means the right to effective assistance of counsel. Accordingly, a claim of ineffective assistance of counsel requires a showing that counsel made errors so serious as to deprive defendant of10 the fair trial guaranteed by the Sixth Amendment. Strickland, 104 S.Ct. at 2064. Moreover, this requirement of effective assistance does not attach only to matters that affect the determination of actual guilt, Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 2585 (1986), and a single serious error may support a claim of ineffective assistance of counsel. Id. at 2587.
Moving on to the question of whether the decision of the Appellate Division was contrary to, or involved an unreasonable application of federal law regarding the constitutional right to effective assistance of counsel, or 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, this Court is not called upon to determine whether the state court was incorrect or erroneous, but rather whether it was "objectively unreasonable." Such "objective unreasonableness" is defined as "some increment of incorrectness beyond error." Sellan v. Kuhlman, 261 F.3d at 314; Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) ("We are determining the reasonableness of the state courts' `decision,' not grading their papers."); Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001).
Under Strickland v. Washington, 104 S.Ct. 2052 (1984), claims of ineffective assistance of counsel are subject to a two pronged inquiry. First, Petitioner must show that counsel's performance fell below an objective standard of reasonableness in light of the circumstances. Second, the Petitioner must show11 that this deficient performance prejudiced the defense. 104 S.Ct. at 2064. In other words, the Petitioner must show that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Kimmelman v. Morrison, 106 S.Ct. at 2582; Strickland, 104 S.Ct. at 2068; Flores v. Demskie, 215 F.3d 293, 304 (2d Cir.), cert. denied, 531 U.S. 1029 (2000).
Petitioner contends that his counsel's performance fell below an objective standard of reasonably effective assistance because counsel failed to make a motion for dismissal of the indictment based on the lengthy preindictment delay in Petitioner's case. The argument continues that the failure to make this motion prejudiced the defense, because, had counsel made the motion, there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 S.Ct. at 2068. This is so, according to Petitioner, because New York law mandates dismissal of an indictment even without a showing of prejudice in cases where there has been a lengthy preindictment delay. The problem with Petitioner's argument is that it rests on the erroneous premise that a motion to dismiss would have been successful in his case. However, an examination of New York law demonstrates the contrary. Thus, counsel was not unprofessional in failing to make such a motion, and Petitioner was not prejudiced by his actions.
In support of his position, Petitioner relies upon People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17 (1978), in which the Court held that "in a proper case, a lengthy and unjustifiable delay in commencing the prosecution may require dismissal even though no actual prejudice to the defendant is shown." Id., 405 N.Y.S.2d at 27. The Singer Court also stated that when there has been protracted delay, the burden is on the prosecution to establish good cause, id. at 28, and that "[t]he defendant's imprisonment for another crime cannot excuse the delay." Id. at 29. Since the only proffered reason for delaying the prosecution of Petitioner was his incarceration on drug charges in South Carolina, Petitioner contends that a motion to dismiss the indictment would most probably have been granted.
In opposition to this Motion, the People have also argued that an ongoing investigation also delayed them from seeking to indict Petitioner sooner, and that they first found individuals who were willing to testify that they actually saw Petitioner shoot Bunn after Petitioner returned from South Carolina. While these statements might raise a factual issue as to additional reasons for the preindictment delay in this case, this Court will disregard them as they are unnecessary to its decision of this Motion.
Despite Petitioner's argument to the contrary, New York law does not dictate automatic dismissal of an indictment in every case where there has been lengthy preindictment delay. In People v. Taranovich, 37 N.Y.2d 442, 444-45, 373 N.Y.S.2d 79 (1975), the New York Court of Appeals stated that "[t]here is no specific temporal duration after which a defendant automatically becomes entitled to release for denial of a speedy trial." Instead, a court deciding a motion for dismissal based on denial of the right of prompt prosecution must engage in a "sensitive weighing process of the diversified factors present in the particular case." Id., 37 N.Y.2d at 445. These factors include, but are not limited to, the extent of the delay, the reason for the delay, the nature of the underlying charge, whether or not there has been an extended period of pretrial incarceration, and whether or not there is any indication that the defense has been impaired by reason of the delay. Id. There is no question that Taranovich continues to be the law of the State of New York, in spite of the holding of People v. Singer.
First, Singer is not inconsistent with the holding of Taranovich. The Singer Court did, in fact, engage in a balancing of various factors. It then stated that the record as it stood showed only that the State had waited to indict the defendant in that case until after he was released from serving time for another crime, and remanded the case to the trial court for a hearing at which the People would have the opportunity to establish good cause for the delay in that case. The Singer Court's holding actually was that:
A determination made in good faith to defer commencement of the prosecution for further investigation or for other sufficient reasons, will not deprive the defendant of due process of law even though the delay may cause some prejudice to the defense. But if commencement of the action has been delayed for a lengthy period, without good cause, the defendant may be entitled to dismissal, although there may be no showing of special prejudice."
People v. Singer, 405 N.Y.S.2d at 28 (emphasis added).
Moreover, Taranovich continues to be cited, and the factors that it sets out considered, by the New York courts. Recently, in People v. Vernace, 96 N.Y.2d 886, 730 N.Y.S.2d 778 (2001), the New York Court of Appeals found that a 16 year delay in prosecution would not support dismissal of the indictment. It stated,
Indeed, the factors utilized to determine if a defendant's rights have been abridged are the same whether the right asserted is a speedy trial right or the due process right to prompt prosecution. Those factors are not simply the extent of the delay but also the reasons for the delay, the nature of the underlying charge, whether there has been an extended period of pretrial incarceration, and whether there is any indication that the defense has been impaired by reason of the delay.96 N.Y.2d at 887 (citing People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79 (1975)).
There, the majority of the court found that the factors, other than the length of the delay, favored the prosecution since the crime was very serious, there was virtually no pretrial incarceration, and the record did not "demonstrate undue prejudice to the defense", 96 N.Y.2d at 888, in spite of the dissenting judge's view that the cause for the delay appeared to be "complete prosecutorial inertia and inattention." 96 N.Y.2d at 891 (Levine, J., dissenting). See also People v. Lesiuk, 81 N.Y.2d 485, 491, 600 N.Y.S.2d 931, 934 (1993) (finding that a desire to continue to use an informant to arrange another drug transaction involving the defendant constituted sufficient reason for an eight month delay in arresting the defendant); People v. Jones, 267 A.D.2d 250, 699 N.Y.S.2d 447, 447-48 (2d Dep't 1999), app. denied, 94 N.Y.2d 949 (2000) (seven year delay between crime and arrest does not warrant dismissal); People v. Suero, 235 A.D.2d 357, 654 N.Y.S.2d 114 (1st Dep't), app. denied, 89 N.Y.2d 1101 (1997) (citing both Taranovich and Singer); People v. Brown, 209 A.D.2d 233, 618 N.Y.S.2d 297, 298 (1st Dep't 1994), app. denied, 85 N.Y.2d 860 (1995) (citing Singer and refusing to dismiss after nine year delay); People v. Davis, 197 A.D.2d 375, 602 N.Y.S.2d 363 (1st Dep't), app. denied, 82 N.Y.2d 893 (1993) ("Upon weighing the extent of the delay, the reason for the delay, the nature of the charge, the period of pretrial incarceration, and whether there is any indication that the defendant's chances for acquittal were impaired, we find that defendant's right to a speedy trial was not violated" (citing Singer); People v. Romero, 173 A.D.2d 654, 570 N.Y.S.2d 230 (2d Dep't), app. denied, 78 N.Y.2d 1014 (1991) ("Although the 38- month preindictment delay was substantial, and to some extent unnecessary, the severity of the underlying offense and the lack of any prejudice to the defendant indicate that he was not denied due process.").
Consequently, the Appellate Division's opinion, which reflected the balancing required by New York law and found that a motion to dismiss the indictment, had it been made, would have had no likelihood of success, did not constitute an unreasonable application of clearly established federal law.
Moreover, even if this Court did not accord the state courts' decisions the deference mandated by § 2254(d), and used pre-AEDPA independent judgment, the conclusion would be the same. As stated above, the law of New York requires a balancing of factors, taking into account all of the circumstances present in the particular case. An independent balancing of the relevant factors dictates a finding that there is no reasonable probability that the New York state court would have granted Petitioner's motion to dismiss the indictment in his case.
While it is true that the amount of time that elapsed between Petitioner's crime and his indictment — nearly five years — was lengthy, the other four factors that the New York courts must consider under Taranovich and Vernace weigh against dismissal. The underlying charge of intentional murder, growing out of an inconsequential argument, is very serious. Petitioner was not incarcerated prior to the indictment for any consequential period of time in connection with this charge, and there is no showing, other than a generalized incantation of the perils of dimmming of memories and loss of witnesses, that the defense was prejudiced in any way by the delay. As to the reason for the delay, the decision of the District Attorney to decline further prosecution in light of the length of the sentence imposed on Petitioner in South Carolina, was not, as stated earlier, simply a decision (which arguably would be improper) to wait until Petitioner was released before initiating a prosecution against him. It was a decision to forgo further prosecution given considerations that this Court finds reasonable17 as a matter of law: a belief that the defendant would be incarcerated for a period that was adequate to satisfy the punitive, deterrent and rehabilitative concerns of the State of New York, while conserving the judicial resources of the State. As Petitioner himself points out, it was only when the police and the District Attorney learned that the Petitioner was not serving the anticipated 15 to 20 years in South Carolina that they revived the investigation and subsequent prosecution of the case against him.
Conclusion
Having found that the relevant factors overcome the extensive preindictment delay in this case, and that consequently there is no reasonable probability that the New York trial court would have granted Petitioner's motion for dismissal, the Court necessarily finds both that it was not unreasonable for Petitioner's counsel to fail to make the motion, and that Petitioner cannot satisy the prejudice prong of the Strickland analysis.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this decision may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920 (1962). The Court determines that the petition presents no question of substance for appellate review, and that Petitioner has failed to make a "substantial showing of the18 denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Fed.R.App.P. Rule 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.