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finding that erroneous amendment of indictment claim was required to be deemed exhausted but procedurally barred under C.P.L. § 440.10(b) where petitioner raised claim on direct appeal but failed to fairly present it in federal constitutional terms
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02 Civ. 5443 (WHP) (THK).
June 20, 2005
ORDER
Petitioner Scott Parrilla filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking an Order vacating his conviction for Attempted Murder in the Second Degree in the Supreme Court of the State of New York, Bronx County. On July 9, 2004, Magistrate Judge Theodore H. Katz issued the annexed report and recommendation recommending that this petition be denied in its entirety. This Court conducted a de novo review of petitioner's objections and the full record herein. After a complete review, this Court finds the objections to be without merit. Accordingly, it is
ORDERED that this Court adopts the well-reasoned report of Magistrate Judge Theodore H. Katz, dated July 9, 2004, recommending that this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. It is
FURTHER ORDERED that this petition for a writ of habeas corpus is denied in its entirety. It is
FURTHER ORDERED that because petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c), as amended by the Antiterrorism and Effective Death Penalty Act of 1996. In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
The Clerk is directed to close this case.
SO ORDERED:
REPORT AND RECOMMENDATION
FROM: THEODORE H. KATZ, United States Magistrate Judge. TO: HON. WILLIAM H. PAULEY III, United States District Judge.
This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72.1(d) of the Southern District of New York Local Civil Rules. Petitioner, a New York State prisoner, pled guilty to Attempted Murder in the Second Degree (New York Penal Law §§ 110/125.25 (1)), in New York Supreme Court, Bronx County, in exchange for an indeterminate sentence of seven-and-one-half to fifteen years. He now seeks habeas relief pursuant to 28 U.S.C. § 2254, claiming that his conviction resulted from the deprivation of his constitutional rights, insofar as: (1) he was denied his Sixth Amendment right to a speedy trial; (2) he was denied the effective assistance of counsel because counsel failed to submit several meritorious motions (including speedy trial motions) on his behalf, which caused him to enter a guilty plea involuntarily; and (3) he was denied the right to be indicted by a grand jury, when the trial court allowed the People to amend a jurisdictionally defective indictment. Respondent argues that petitioner's first and second claims should be dismissed because the Appellate Division's rejection of these claims was neither contrary to, nor an unreasonable application of, clearly established federal law, and that there is no basis for habeas corpus review of Petitioner's third claim, as it is partially unexhausted and does not implicate a federal constitutional right.
For the reasons that follow, this Court respectfully recommends that the Petition be dismissed with prejudice.
BACKGROUND
Petitioner was arrested on September 24, 1993, for the attack of Keila C. (Affidavit of Assistant District Attorney David S. Weisel, dated Mar. 21, 2003 ("Weisel Aff.") ¶ 3.) On October 7, 1993, the Grand Jury of Bronx County indicted Petitioner for one count of Attempted Murder in the Second Degree; three counts of Rape in the First Degree; two counts of Assault in the First Degree; two counts of Assault in the Second Degree; and one count of Intimidating a Victim or Witness in the Third Degree. (See Indictment, Weisel Aff. Ex. 1.) The crimes were alleged to have occurred "on or about and between September 10, 1993 and November 30, 1993." (See id.) The People moved to amend the indictment by Notice of Motion dated March 8, 1994, pursuant to N.Y. Crim. Proc. Law § 200.70, to allege that the crimes charged in counts one through eight of the indictment took place "on or about and between September 10, 1993 and September 11, 1993," and that the charge set forth in count nine (Intimidating a Victim or Witness in the Third Degree) took place "on or about and between September 25, 1993 and September 26, 1993." (See Motion to Amend Indictment, Weisel Aff. Ex. 3.) On March 21, 1994, the court granted the motion. (See Order Granting Amendment, dated Mar. 21, 1994, Weisel Aff. Ex. 4; Def.-Appellant Br. at 2-3, Weisel Aff. Ex. 14.)
The facts of the plea proceeding are excerpted from the appellate briefs in Petitioner's direct appeal. (See Weisel Aff. Exs. 10 14.) Respondent attests that the transcript of the state proceeding is not available. (See Weisel Aff. ¶ 11 n. 2.) Petitioner's appellate counsel was likewise unable to obtain a transcript of the hearing. (See Def.-Appellant Br. at 12.) Because the transcript of the hearing is missing, this Court may rely upon the summaries presented in the appellate briefs. See Rules Governing § 2254 Cases in the U.S. District Courts, Rule 5 ("[i]f a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted"); see also El v. Artuz, 105 F. Supp. 2d 242, 245 n. 1 (S.D.N.Y. 2000);Stevenson v. Strack, No. 96 Civ. 8429 (DC), 1999 WL 294805, at *1 n. 1 (S.D.N.Y. May 11, 1999).
The first attorney to represent Petitioner for a significant amount of time was Alvin C. Morris. Mr. Morris submitted several pre-trial motions on Petitioner's behalf, including a motion for a suppression hearing regarding Petitioner's arrest and the search of his apartment, and a motion to inspect the Grand Jury minutes or dismiss the indictment. (Weisel Aff. ¶¶ 5-7.) In addition, Petitioner submitted several pro se motions. (Id. ¶¶ 7-8.) On numerous appearance dates between January 1994 and February 1996, either Petitioner or defense counsel was not present in court. (Id. ¶ 9.) Mr. Morris was frequently ill, and died of cancer on July 11, 1996. (See Letter from Attorney for Morris Estate, dated Oct. 16, 1996, Weisel Aff. Ex. 9.) After Mr. Morris failed to appear on February 27, 1996, he was relieved, and James C. Hodge was appointed as Petitioner's counsel. (Weisel Aff. ¶ 10.)
On June 11, 1996, Petitioner pled guilty to Attempted Murder in the Second Degree, in violation of New York Penal Law §§ 110/125.25(1). At the sentencing hearing, the complaining witness, Keila C., testified in detail, describing her assault by Petitioner, whom she had known as a friend. (See Respondent's Appellate Brief ("Resp't Br."), at 4-6.) Petitioner acknowledged in his plea allocution that he attempted to cause the death of Keila C. by stabbing her multiple times in the chest and upper body. (See id. at 3-4.) Petitioner made a statement in which he apologized and took "full responsibility for any [of his] irresponsible actions." (See id. at 6.) Petitioner affirmed that he was "satisfied" with his attorney. (See id. at 3.) Petitioner was sentenced to an indeterminate prison term of from seven-and-one-half to fifteen years.
On January 22, 1998, Petitioner filed a pro se motion to vacate the judgment of his conviction, pursuant to N.Y. Crim. Proc. Law § 440.10, arguing that he had been denied effective assistance of counsel because his counsel failed to file a motion to dismiss the indictment based upon: (1) a speedy trial violation; and (2) a defective indictment that charged a future crime. (See Petitioner's § 440.10 Motion, Weisel Aff. Ex. 13; Def.-Appellant Br. at 4.) Petitioner also complained that on two occasions Mr. Hodge told him to get his case files from Mr. Morris, either on his own or through a private investigator. (Resp't Br. at 7.) The Supreme Court, Bronx County denied the motion on the grounds that the claims "could have been or will be raised on appeal." (Order, dated May 27, 1998, Weisel Aff. Ex. 13.)
Petitioner's application to appeal the denial of his § 440.10 motion was granted by the Appellate Division, First Department. (See Weisel Aff. ¶ 19.) The appeal was consolidated with Petitioner's direct appeal, which asserted three claims: (1) the trial court improperly permitted the People to amend the indictment where it charged a future crime; (2) the court should have summarily granted Petitioner's pro se constitutional speedy trial motion, or alternatively should have held a hearing; (3) the court below erred when it summarily denied Petitioner's § 440.10 motion. (See id. ¶¶ 19-20; Def-Appellant Br.,passim.)
On September 13, 2001, the Appellate Division affirmed Petitioner's conviction. See People v. Parrilla, 285 A.D.2d 157, 730 N.Y.S.2d 301 (1st Dep't 2001). The court considered whether an indictment that contains the dates on which crimes were committed, but also includes time periods post-dating the indictment, was jurisdictionally defective and not subject to amendment. The court relied on Crim. Proc. Law § 200.70(1), which states that an indictment may be amended "[a]t any time before trial . . . with respect to defects, errors or variances . . . relating to matters of form, time, place, names of persons and the like." Id. at 160, 730 N.Y.S.2d at 303. The court held that "the same charges . . . are manifested in the original indictment; dates were only pared off in a manner that did not change the theory of the prosecution." Id. at 162, 730 N.Y.S.2d at 304. Thus, the indictment was in fact amendable with respect to time, and not jurisdictionally defective. The court dismissed Petitioner's other two claims as "without merit." Id. at 162, 730 N.Y.S.2d at 305.
On November 6, 2001, the New York Court of Appeals denied leave to appeal. See People v. Parrilla, 97 N.Y.2d 657, 737 N.Y.S.2d 58 (2001). On April 22, 2002, the United States Supreme Court denied Petitioner's application for a writ of certiorari.See Parrilla v. New York, 535 U.S. 1020, 122 S. Ct. 1613 (2002).
The instant Petition followed.
DISCUSSION
I. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction 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," 28 U.S.C. § 2254(d)(1), or if it was "based on an unreasonable determination of the facts in light of the evidence presented in state court." Id. § 2254(d)(2).
A state court decision is "contrary to" clearly established federal law 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 [the Supreme Court] has on a set of materially indistinguishable facts."Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000); see also Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision.Williams, 529 U.S. at 413, 120 S. Ct. at 1523; see also Leslie, 230 F.3d at 32.
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case.Williams, 529 U.S. at 413, 120 S. Ct. at 1523. The inquiry for a federal habeas court is not whether the state court's application of the governing law was merely erroneous or incorrect, but rather whether it was "objectively unreasonable."See id. at 408-10, 120 S. Ct. at 1521-22; see also Lurie v. Wittner, 228 F.3d 113, 128-29 (2d Cir. 2000).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct [and the petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). A state court's findings of fact "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).
II. Right to a Speedy Trial
Petitioner argues that he was denied his constitutional right to a speedy trial. Respondent concedes that Petitioner exhausted this claim in state court and that he has raised a federal constitutional claim. (Respondent's Memorandum of Law in Opposition to Petition ("Resp't's Mem.") at 4.) This Court must therefore determine whether the Appellate Division's decision, that Petitioner's speedy trial claim was "without merit,"Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 305, was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d)(1).
The Supreme Court has set forth a balancing test to guide a court's determination of whether a defendant was denied his Sixth Amendment right to a speedy trial. See Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). The factors to be weighed are: "[1] Length of delay, [2] the reason for the delay, [3] the defendant's assertion of his right, and [4] prejudice to the defendant." Id.; see also Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992); United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997); United States v. Lainez-Leiva, 129 F.3d 89, 91-92 (2d Cir. 1997). None of these factors is "either a necessary or sufficient condition to a finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Barker, 407 U.S. at 533, 92 S. Ct. at 2193.
A. Length of Delay
In Barker, the Court noted that "[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." 407 U.S. at 530, 92 S. Ct. at 2192. Petitioner was arrested on September 24, 1993, indicted on October 7, 1993, and pled guilty on June 11, 1996. The time of the delay is measured from the time the party is "accused" to the date of the guilty plea. See United States v. Marion, 404 U.S. 307, 316-17, 92 S. Ct. 455, 462 (1971) (speedy trial "guarantees are applicable only after a person has been accused of a crime"); see also United States v. Loud Hawk, 474 U.S. 302, 310, 106 S. Ct. 648, 653 (1986) (either indictment or "actual restraints imposed by arrest and holding" required as basis for application of speedy trial claim). Because "[a] delay of one year is sufficient to trigger judicial review for a Sixth Amendment violation," United States v. Gutierrez, 891 F. Supp. 97, 100 (E.D.N.Y. 1995) (citing Doggett, 505 U.S. at 657-58, 112 S. Ct. at 2694), the length of delay in Petitioner's case triggers the Barker inquiry.
While the roughly thirty-four months that Petitioner awaited trial is presumptively prejudicial, it is far shorter than delays in other cases where courts have found no Sixth Amendment violation. See, e.g., Barker, 407 U.S. at 533-34, 92 S. Ct. at 2193-94 (no violation despite delay of over five years); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (no violation despite delay of seven years); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) ("The delay here was quite lengthy[,] approximately 58 months or just under five years[,] but nevertheless was shorter than that in other cases in which no Sixth Amendment violation has been found."); United States v. Saglimbene, 471 F.2d 16, 17 (2d Cir. 1972) (no violation despite a delay of six years).
B. Reasons for the delay
Next to be considered are the reasons for the delay. Petitioner argues that most of the delay is attributable to the People. (See Petition for Writ of Habeas Corpus ("Pet.") at 13.) Petitioner further argues that because the People did not dispute this fact in responding to his original § 440.10 motion, but instead raised only procedural arguments, the People have conceded these allegations. (See id.) However, this argument was deemed "without merit" by the appellate court, see Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 305, a finding with which this Court concurs. Petitioner's original § 440.10 claim was for ineffective assistance of counsel, not a speedy trial violation, so the People's decision not to challenge Petitioner's speedy trial claim on its merits cannot be deemed a concession of its validity. (See Resp't Br. at 20-21.)
Additionally, on direct appeal the People did dispute Petitioner's speedy trial claim on the merits. (See Resp't Br. at 20.)
In fact, Petitioner has offered no proof that the delay was caused by the People. At best, he argues that at various points the People failed to declare that they were ready for trial. (See Pet. at 6.) By contrast, Respondent has provided evidence that much of the delay was the result of pre-trial motions filed by Petitioner and his counsel, and the frequent absence from court of Petitioner or his counsel on various appearance dates, over a two-year period from January 1994 to February 1996. (See Weisel Aff. ¶¶ 5-9; Correction Department Report, Weisel Aff. Ex. 8.) Petitioner himself recognizes these delays, which were not attributable to the People. (See Pet. at 5-7.)
After Petitioner was arraigned on the indictment on November 9, 1993, his attorney filed two pre-trial motions, dated January 21, 1994, and February 25, 1994, respectively. (Weisel Aff. ¶ 5.) The People responded on February 15, 1994 and March 8, 1994, respectively. The trial court decided both motions on March 21, 1994. (Id.) Defense Counsel filed a third pre-trial motion on March 24, 1994, which the People answered on or about April 14, 1994. (Id. ¶ 7.) The trial court ruled on that motion on or about April 26, 1994. (Id.) Petitioner filed a pro se application for a state writ of habeas corpus on October 10, 1995, which the trial court denied on March 15, 1996. (Id. ¶ 8.) Delay caused by motions filed by the defendant or defense counsel are not attributable to the state in assessing a constitutional speedy trial claim. See United States v. Vasguez, 918 F.2d 329, 338 (2d Cir. 1990) (second Barker factor does not weigh against the People where "most of the 26 months at issue was consumed by consideration of defendants' various pretrial motions"); Jones v. Spitzer, No. 01 Civ. 9754 (HB) (GWG), 2003 WL 1563780, at *44 (S.D.N.Y. Mar. 26, 2003) (motions made by defendant do not constitute attempts by the prosecution to delay the trial); United States v. Cruz, 907 F. Supp. 87, 93 (S.D.N.Y. 1995).
In addition, Petitioner was not present in court on the following appearance dates: June 27, 1994; September 7, 1994; March 1, 1995; September 13, 1995; and October 3, 1995. (Weisel Aff. ¶ 9.) Petitioner's counsel was not in attendance on the following appearance dates: January 11, 1994; February 1, 1994; October 25, 1994; December 6, 1994; March 7, 1995; October 24, 1995; November 14, 1995; December 12, 1995; January 23, 1996; and February 12, 1996. (Id.) Delays resulting from these absences cannot be attributed to the People. See Jones, 2003 WL 1563780 at *44 (delay caused by appointment of counsel and reassignment of new judge were not deliberate, thus not the State's fault); Vazguez v. Bennett, No. 00 Civ. 3070 (AKH), 2002 WL 619282, at *3 (S.D.N.Y. Apr. 17, 2002) (fourteen month delay caused by court-appointed counsel who relieved himself from case without explanation, counted as "neutral" reason for delay); Davis v. McLaughlin, 122 F. Supp. 2d 437, 443 (S.D.N.Y. 2000) (delays caused by petitioner's failure to appear, assignment of new defense counsel, and various adjournments for petitioner's counsel to appear not attributable to the State).
In any event, if certain delays were attributable to the People, Petitioner has not offered any evidence to indicate that the People acted in bad faith. When there is no evidence that the People delayed the trial in bad faith, or to disadvantage the defendant, the second Barker factor does not weigh in the defendant's favor. See Flowers v. Conn. Corr. Inst., 853 F.2d 131, 134 (2d Cir. 1988); Warwick v. Kuhlmann, No. 98 Civ. 6393 (RCC) (HBP), 2003 WL 22047883, at *3 (S.D.N.Y. Aug. 29, 2003);Holden v. Miller, No. 00 Civ. 0926 (RMB) (AJP), 2000 WL 1121551, at *11 (S.D.N.Y. Aug. 8, 2000) ("[S]ince nothing in the record indicates a deliberate attempt by the State to delay the trial in order to hamper [petitioner's] defense, this factor does not weigh in [petitioner's] favor.").
If the State had been negligent in allowing unreasonable delay, which also has not been demonstrated, this factor would weigh against the State, though not as heavily as if it had acted in bad faith. See Doggett, 505 U.S. at 656-57, 112 S. Ct. at 2693; Barker, 407 U.S. at 531, 92 S. Ct. at 2192; Lane, 561 F.2d at 1079 (no speedy trial violation because, "[w]hile the record here contains some rather long unexplained delays, there is no indication that these are attributable either to deliberate procrastination or even negligent inaction on the part of the Government"); Jones, 2003 WL 1563780, at *44.
C. Invocation of Right to Speedy Trial
The third factor of the Barker test looks to whether and when a defendant invoked his speedy trial right. The defendant has a "responsibility to assert his right . . . [and the] failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker 407 U.S. at 531-32, 92 S. Ct. at 2192-93. That Petitioner did not raise his speedy trial claim until after pleading guilty weighs against him. See Doggett, 505 U.S. at 653-54, 112 S. Ct. at 2691 (third factor of Barker test would weigh against defendant who waited until he was arrested, eight-and-one-half years after he was indicted, if he knew of the outstanding indictment); Howard v. Lacy, 58 F. Supp. 2d 157, 168 (S.D.N.Y. 1999) ("Raising the claim on the eve of the trial cuts against the petitioner."). Although Petitioner has asserted that he submitted several pro se speedy trial motions to his counsel before his plea proceeding, the first on January 3, 1996, his counsel refused to submit the motions to the trial court. (See Petitioner's § 440.10 Motion ¶ 13, Weisel Aff. Ex. 12.) Since these motions were not submitted to the court, the court was not alerted to any speedy trial concerns. In any event, even if the unfiled motions were relevant, Petitioner still did not invoke his speedy trial right until twenty-six months after he was indicted. On this record, the third Barker factor also weighs against Petitioner. See, e.g., Vasguez, 918 F.2d at 338 (third factor "weighs heavily" against petitioners who "waited roughly 22 months before advancing their speedy trial claim"); Pjetrovic v. Bennett, No. 00 Civ. 0398, (VM) (RLE), 2002 WL 32780, at *6 (S.D.N.Y. Jan. 3, 2002) (ten month delay weighs against petitioner); Howard, 58 F. Supp. 2d at 168 (raising the claim after seventeen months of a nineteen-month delay "cuts against the Petitioner").
D. Prejudice
The final prong of the Barker test is whether prejudice resulted from the delay. The Supreme Court has explained that the test for determining prejudice should be assessed based on three particular interests:
(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past.Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The Court has recognized that affirmative proof of prejudice is often unavailable, and therefore "consideration of prejudice is not limited to the specifically demonstrable, and . . . affirmative proof of particular prejudice is not essential to every speedy trial claim." Doggett, 505 U.S. at 655, 112 S. Ct. at 2692. Nevertheless, "presumptive prejudice alone cannot carry a Sixth Amendment claim . . . [but] is part of the mix of relevant facts" that goes into the Barker test. Id. at 656, 112 S. Ct. at 2693; see also United States v. Solomon, No. 95 CR. 154 (LAP), 1996 WL 399814, at *5 (S.D.N.Y. July 16, 1996).
Petitioner argues that the delay caused him to lose two witnesses who would have testified on his behalf, thus greatly impairing his ability to defend himself. (Pet. at 13.) Petitioner contends that one witness could not be located, and the other had forgotten much of what had transpired at the time of the crime. (Def.-Appellant Br. at 8-9.)
However, Petitioner has offered no specific evidence demonstrating how the witnesses' testimony would have supported his defense. Only in his Reply to the Respondent's Answer, did Petitioner, for the first time, make any claim about the substance of the alleged testimony these witnesses would have provided. Petitioner states that the witnesses would have testified to the fact that he was not with the victim at the times and dates alleged by the People. (See Pet'r's Reply at 1-2.) This claim is unsupported and unconvincing, particularly since it was not made in the state courts or at any stage of this proceeding until Petitioner's Reply. Moreover, it has not been supported by any particularized evidence. See United States v. Infanti, 474 F.2d 522, 528 (2d Cir. 1973) (no prejudice where "key witness for defense" died before trial when witness's alleged exculpatory knowledge is brought up for the first time in the brief for appeal, and not accompanied by substantiating evidence on the record); Solomon, 1996 WL 399814, at *5 (no prejudice based on "vague assertions" that do not "identify the witnesses whose memories have dimmed or what the nature of their testimony would have been"). Finally, the suggestion that unidentified witnesses would have provided an alibi for Petitioner flies in the face of his plea allocution, where he stated under oath that he stabbed the complainant in her apartment and accepted full responsibility for his acts. See Diaz v. Mantello, 115 F. Supp. 2d 411, 421 (S.D.N.Y. 2000) ("Petitioner's present contentions are inconsistent with the sworn statements he made at his plea allocution and are of little relevance to any constitutional habeas claim."). Moreover, as the complainant testified at the sentencing hearing, she knew Petitioner and thus there could be no question of misidentification.
* * *
Taking into account all of the Barker factors, Petitioner has not demonstrated that his Sixth Amendment right to a speedy trial has been violated. Petitioner has not provided evidence of specific prejudice resulting from the delay; he has not shown that the People deliberately or negligently delayed the case at his expense; and he only invoked his speedy trial right after a twenty-six month delay, indicating a lack of true interest in receiving a speedy trial. Most significantly, Petitioner has not demonstrated that any significant delay was the result of the People's conduct. Thus, Petitioner has not shown that the Appellate Division's finding that his speedy trial claim was "without merit" was contrary to, or an unreasonable application of, Supreme Court law.
Accordingly, this Court respectfully recommends that Petitioner's speedy trial claim be dismissed.
III. Right to Be Indicted by a Grand Jury
Petitioner contends that his conviction was obtained in violation of his constitutional right to be indicted by a grand jury, when the trial court allowed the People to amend a jurisdictionally defective indictment. (See Pet. at 19.) Respondent argues that Petitioner's claim does not present a federal constitutional question and, therefore, does not entitle him to habeas relief. (See Resp't Mem. at 11.)
A. Indictment by Grand Jury Not a Federal Issue
The Fifth Amendment right to be tried for a felony only upon a grand jury indictment was not incorporated by the Due Process Clause of the Fourteenth Amendment, and therefore does not pertain to the states. See Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111 (1884); LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990). Thus, Petitioner's right to be tried on a felony only upon indictment by a grand jury is derived solely from the New York State Constitution. See N.Y. Const., art. I, § 6. Petitioner's specific claim that his right to be indicted by a grand jury was violated therefore presents no federal question, and hence is unreviewable by this Court. See 28 U.S.C. 2254(a) (federal habeas review is available "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States"); Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.").
B. Due Process Claim Unexhausted and Procedurally Barred
Petitioner's pro se Petition must be construed liberally to include its strongest arguments. See Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000). Accordingly, it is possible to read the Petition as asserting that Petitioner's grand jury indictment failed to satisfy basic due process requirements. In general, challenges to the sufficiency of a state indictment are not cognizable on habeas review. See United States ex rel. Mintzer v. Dros, 403 F.2d 42, 43 (2d Cir. 1967); Munoz v. Keane, 777 F. Supp. 282, 289 n. 15 (S.D.N.Y. 1991); United States ex rel. Maisonet v. La Vallee, 405 F. Supp. 925, 927-28 (S.D.N.Y. 1975). Challenges to state indictments are only cognizable on habeas review if the indictment falls below basic due process requirements. Due process requires that an indictment inform the defendant "in general terms, of the time, place, and essential elements of the crime." Carroll v. Hoke, 695 F. Supp. 1435, 1438 (E.D.N.Y. 1988), aff'd, 880 F.2d 1318 (2d Cir. 1989); see also Medina v. Herbert, No. 98 Civ. 1871 (RWS), 1998 WL 799173, at *5 (S.D.N.Y. Nov. 16, 1998) (indictment sufficient if it provides time, place and essential elements of crime, so that petitioner can plead double jeopardy in future prosecution on same set of events).
Respondent contends that any due process claim is not exhausted because Petitioner failed to apprise the state courts of any claimed federal constitutional violation, and hence the claim is procedurally barred from review by this Court. (See Resp't Mem. at 12.) It is well settled that all state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. See 28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275-76, 92 S. Ct. 509, 512-13 (1971); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997). "At the core of the exhaustion doctrine . . . is the 'respect for our dual judicial system and concern for harmonious relations between the two adjudicatory institutions.'" Jones, 126 F.3d at 413 (quoting Daye v. Attorney Gen. of NY, 696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Thus, a petitioner must "'fairly presen[t]' federal claims to the state courts in order to give the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888 (1995) (per curiam); see also Jones, 126 F.3d at 413; Daye, 696 F.2d at 191. "This means, in essence, that in state court the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature." Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002) (quoting Daye, 696 F.2d at 191).
The presentation requirement is somewhat flexible. "Adherence to exhaustion principles does not require a petitioner to raise his claims by citing chapter and verse of hornbook [constitutional] law." Abdurrahman v. Henderson, 897 F.2d 71, 73 (2d Cir. 1990) (internal citations omitted); see also Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995). A petitioner may fairly present a federal claim in one of four ways:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Strogov v. Attorney Gen., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye, 696 F.2d at 194).
In arguing on direct appeal that the trial court improperly permitted the People to amend the indictment where it charged a future crime, Petitioner did not make even passing reference to the United States Constitution or use the term "due process." (See Def.-Appellant Br. at 5-7.) He argued that the amendment was a change of substance, not form, and thus the trial court lacked the power to permit the amendment as it violated his right to be indicted by a grand jury. (See id. at 5.) Petitioner cited exclusively state materials to support his claim: the New York State Constitution, New York cases and statutes, and the common law (as described by a New York state case). (See id. at 5-7.)
Indeed, there is nothing in the appellate brief which might have alerted the state courts to a possible federal constitutional issue. Accordingly, Petitioner failed to "fairly present" a federal constitutional claim to the state courts for review. See Robertson v. Artuz, No. 97 Civ. 2561 (DC), 2000 WL 10265, at *3 (claim not fairly presented where petitioner relied solely on New York law and did not make any reference to the Constitution, federal case law, or state case law analyzing the issues in constitutional terms); McCoy v. Walker, No. 99 Civ. 3926 (RWS), 1999 WL 1191988, at *8 (S.D.N.Y. Dec. 14, 1999) (petitioner's constitutional claim not exhausted where claim rested solely on New York law of evidence and no reference was made to the United States Constitution, nor did petitioner cite any federal case or assert the claim in terms to call to mind a constitutional right.); Lugo v. Kuhlmann, 68 F Supp. 2d 347, 361 (S.D.N.Y. 1999) (claim that trial court improperly admitted testimony was not fairly presented to state courts as a constitutional claim where petitioner's argument in state court was based solely on state case law and no reference was made to any provision of the Constitution); Marchese v. Senkowski, No. 97 Civ. 2055 (JG), 1999 WL 731011, at *6 (E.D.N.Y. Sept. 15, 1999) (petitioner failed to fairly apprise state court of federal constitutional claims where he relied primarily on state law and the state court's decision rested solely on principles of state law).
Petitioner therefore failed to exhaust any due process claim at the state level. If a petitioner no longer has an available state forum to pursue a state remedy because of a procedural bar, however, his claim may be deemed exhausted, yet forfeited. See Teague v. Lane, 489 U.S. 288, 297-99, 109 S. Ct. 1060, 1068-69 (1989); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Since the amendment of the indictment is record-based, any claim relating to the amendment must be raised on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(b). Petitioner is entitled to only one direct appeal, see N.Y. Court Rules § 500.10(a), which he has already utilized. See, e.g., Gil v. Mazzuca, No. 03 Civ. 3316 (WHP) (GWG), 2004 WL 389103, at *10 (S.D.N.Y. Mar. 3, 2004). Therefore, Petitioner is barred from seeking state court review of the claim, rendering the claim procedurally barred.
Accordingly, federal habeas review of Petitioner's due process claim is prohibited unless he can demonstrate cause for his failure to properly raise the constitutional claim at the state level, and prejudice resulting therefrom, or that a fundamental miscarriage of justice would occur from the failure to entertain the claim. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565 (1991); Dixon v. Miller, 293 F.3d 74, 80-81 (2d Cir. 2002); Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997).
"[T]he cause standard requires the petitioner to show that 'some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court." McCleskey v. Zant, 499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986));see also Bloomer v. United States, 162 F.3d 187, 191 (2d Cir. 1998). Petitioner has made no effort to establish cause for the procedural default and none is apparent from the record. There is therefore no need to reach the issue of prejudice, because where a "petitioner has failed to establish 'cause,' in other words why he did not raise these claims at the appropriate time and in the appropriate forum, it is unnecessary to make an inquiry into the question of 'prejudice'." Bentley v. Scully, 851 F. Supp. 586, 604 (S.D.N.Y. 1994), vacated on other grounds, 41 F.3d 818 (2d Cir. 1994), cert. denied, 516 U.S. 1152, 116 S. Ct. 1029 (1996); see also Engle v. Isaac, 456 U.S. 107, 134 n. 43, 102 S. Ct. 1558, 1575 n. 43 (1982); Tor v. Duncan, No. 01 Civ. 3984 (DLC), 2003 WL 22479250, at *4 (S.D.N.Y. Nov. 4, 2003); Glisson v. Mantello, 287 F. Supp. 2d 414, 421 (S.D.N.Y. 2003).
A fundamental miscarriage of justice has been construed to mean that in an extraordinary case, "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S. Ct. at 2649; see also Dixon, 293 F.3d at 81; Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994). Here, Petitioner has not even demonstrated a constitutional violation; moreover, he has not come close to demonstrating that he was innocent of the charges. Indeed, in his plea allocution he acknowledged his guilt and admitted the facts which established his guilt. Accordingly, Petitioner's indictment claim should be dismissed as procedurally defaulted.
In any event, Petitioner's claim is meritless. Petitioner alleges that the original indictment was defective in that it charged him with crimes that occurred after the indictment was filed. (See Pet. at 20.) As discussed, challenges to the sufficiency of a state indictment are not cognizable on habeas review unless the indictment falls below basic due process requirements. See Medina, 1998 WL 799173, at *5 (citingDros, 403 F.2d at 43); Carroll, 695 F. Supp. at 1438-39. An indictment is constitutionally sufficient if "it charges a crime (1) with sufficient precision to inform the defendant of the charges he must meet and (2) with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events." DeVonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994);see also Beverly v. Walker, 899 F. Supp. 900, 909 (N.D.N.Y. 1995).
The indictment in Petitioner's case satisfies these constitutional requirements. Each count of the indictment indicated the crimes charged and their essential elements and, in general terms, the time (between September 10, 1993 and November 30, 1993), and place (Bronx County) of the crimes. (See Indictment.) Although the dates specified in the original indictment were incorrect insofar as they included future dates when the crimes could not possibly have been committed, the original indictment was amended by the People to specify more accurate time periods for each of the counts of the indictment. (See Motion to Amend Indictment, Weisel Aff. Ex. 3; Order Granting Amendment, dated Mar. 21, 1994, Weisel Aff. Ex. 4.) As the Appellate Division found, the amended indictment, "in which the same conduct, the same persons, the same charges, and, as refined, the same time period, are manifested in the original indictment," gave the Petitioner "fair notice in the indictment of the charges against him." Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 304-05. The amendment merely "pared off" some dates and "did not change the theory of the prosecution." See id. at 162, 730 N.Y.S.2d at 304. Thus, the indictment did not fall below due process standards.
Petitioner's argument that it was for the grand jury to amend the indictment, not the prosecutor, implicates only grand jury rights under state law, not federal due process concerns.
Because Petitioner's grand jury/indictment claim is procedurally defaulted and meritless, this Court recommends that the claim be dismissed.
IV. Ineffective Assistance of Counsel
Lastly, Petitioner argues that he was denied effective assistance of counsel when his original and subsequently assigned attorney (1) failed to pursue his speedy trial claim; and (2) failed to object to the People's motion to amend the indictment. Respondent concedes that Petitioner exhausted these claims in state court and that he has raised a federal constitutional claim. (See Resp't Mem. at 15.)
Petitioner also appears to contend that his second attorney was ineffective because he failed to obtain his case file. He provides no specifics on how this prejudiced his case, so he cannot establish constitutional ineffective assistance. See Matura v. United States, 875 F. Supp. 235, 237-38 (S.D.N.Y. 1995) ("Petitioner's bald assertion that counsel should have conducted a more thorough pre-trial investigation fails . . . [when] Petitioner has not stated . . . what this investigation would have produced, or how the fruits of this investigation would have aided petitioner's case.").
It is well settled that the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984), constitutes the relevant "clearly established Federal law, as determined by the Supreme Court of the United States" for ineffective assistance of counsel claims. See Aparicio v. Artuz, 269 F.3d, 78, 95 n. 8 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). Strickland sets forth a two-part test for evaluating claims of ineffective assistance of counsel. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Aparicio, 269 F.3d at 95. First, the defendant must establish that his attorney's performance was so deficient that it "fell below an objective standard of reasonableness."Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. In applying this first prong of the Strickland test, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S. Ct. at 2065 (citation and internal quotation marks omitted).
To satisfy the second part of the Strickland test, a petitioner must demonstrate 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, 104 S. Ct. at 2068; see also Flores v. Demskie, 215 F.3d 293, 300 (2d Cir. 2000). "A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal." Aparicio, 269 F.3d at 95 (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2052). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700, 104 S. Ct. 2071.
Since there was no trial in the instant case, the Strickland test must be applied to Petitioner's guilty plea, where he must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." See Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997); James v. Greiner, No. 97 Civ. 2652 (DLC), 1999 WL 619636, at *4 (S.D.N.Y. Aug. 16, 1999).
Defense counsels' decisions not to file a speedy trial motion or to oppose the People's amendment of the indictment were not objectively unreasonable, since both motions would have been meritless. Indeed, Petitioner eventually pursued these two claims by filing pro se motions, which were denied, and, on appe to the Appellate Division, the court found Petitioner's speedy trial claim to be "without merit," and likewise denied his challenge to the People's amendment of the indictment. See Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 305. There is no constitutional right to have counsel file meritless motions on a criminal defendant's behalf. 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."); Jones 2003 WL 1563780, at *18 ("Obviously, the failure to make a meritless section 30.30 motion does not amount to ineffective assistance.").
Moreover, Petitioner has failed to show how any prejudice resulted from his attorneys' failure to advance these claims. Based on evidence in the record, including the testimony of the victim at Petitioner's sentencing hearing and Petitioner's own admission of guilt, it appears that defense counsel secured a very favorable plea agreement for Petitioner. At Petitioner's plea proceeding, the prosecutor stated that she would have proved beyond a reasonable doubt that Petitioner stabbed Keila C. in the chest with a knife. (See Resp't Br. at 3.) Petitioner agreed with the court's statement that he attempted to cause the death of Keila C. by stabbing her multiple times in the chest and upper body. (See id. at 4.) Moreover, the victim testified to Petitioner's raping her as well. The victim knew Petitioner, she sustained serious injuries, and, as evidenced at the sentencing proceeding, she presented a graphic description of Petitioner's behavior. Had the case proceeded to trial, Petitioner faced a high risk of being convicted of the multiple crimes charged in the indictment.
As a second violent felony offender, Petitioner faced potential concurrent sentences on the nine count indictment, for Attempted Murder in the Second Degree and Forcible Rape, totalling twenty-five to forty years in prison. Petitioner's counsel managed to secure from the court an offer of a sentence of seven-and-one-half to fifteen years if Petitioner pled guilty to one of the counts. The People actually urged a more severe sentence. (See id. at 4.)
Petitioner was convicted in 1990 of Armed Robbery in the Second Degree. (See Resp't Br. at 4.)
Since the speedy trial and defective indictment claims were meritless, and by pleading guilty Petitioner secured a highly favorable sentence, there is no reasonable probability that, but for counsel's failing to file the meritless motions, Petitioner would not have pled guilty. Accordingly, Petitioner cannot satisfy the prejudice prong of Strickland. See Washington v. Ross, No. A95-CV-2213 (DGT), 1996 WL 172983, at *4 (E.D.N.Y. Apr. 8, 1996) (where petitioner's self-defense strategy would have been a "high risk proposition" at trial, and it was "most unlikely" that petitioner, who pleaded guilty to Murder in the Second Degree, would have fared better than his sentence of five years to life had he gone to trial, petitioner failed to demonstrate that he was prejudiced by his counsel's alleged failure to investigate his self-defense claim); see also Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir. 1984) (defense counsel's failure to advise petitioner of affirmative "play pistol" defense to first degree robbery charge did not result in prejudice to petitioner where there was "exceedingly little likelihood" that the defense would have succeeded at trial, and a greater likelihood that it would have exposed petitioner to greater punishment than he received by pleading guilty); United States v. Jackson, No. 89 Cr. 067 (SWK), 1990 WL 88886, at *4 (S.D.N.Y. June 20, 1990) (defense counsel's alleged failure to interview certain witnesses prior to defendant's pleading guilty did not result in prejudice to defendant: "In light of the substantial evidence that the government had against [defendant], . . . it is highly unlikely that [counsel] would have changed his assessment of the case or that any conceivable testimony by these four prospective witnesses would have resulted in a different outcome at trial.").
Because Petitioner has not demonstrated either deficient representation or prejudice, Petitioner's ineffective assistance of counsel claim should be dismissed.
CONCLUSION
For the reasons set forth above, this Court respectfully recommends that Petitioner's claims and the Petition be dismissed with prejudice. As the Petition presents no question of substance for appellate review, this Court recommends that no certificate of appealability be issued. See 28 U.S.C. § 2253(c)(2);Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 531 U.S. 873, 121 S. Ct. 175 (2000). This Court further recommends that the Court certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from its order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 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(a) and (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Pauley. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).