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BENTLEY v. SCULLY

May 11, 1994

ROOSEVELT C. BENTLEY, Petitioner,
v.
CHARLES SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent.



The opinion of the court was delivered by: ROBERT W. SWEET

 Sweet, D. J.

 Petitioner pro se Roosevelt C. Bentley ("Bentley" or "Petitioner") has made an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the grounds that he is held in custody in violation of the Constitution of the United States. For the reasons set forth below, the application is granted.

 The Parties

 Bentley is presently incarcerated at the Green Haven Correctional Facility (the "Facility"), New York, pursuant to a judgment of conviction of the Supreme Court, Bronx County.

 Respondent Charles Scully ("Scully" or "the State") is Superintendent of the Facility. Pursuant to an agreement between the Office of the District Attorney of Bronx County and Robert Abrams, Attorney General of the State of New York, the Bronx District Attorney (the "District Attorney") represents Scully.

 Facts and Prior Proceedings

 The facts underlying Bentley's conviction are set forth in the opinion of the Appellate Division, First Department, which entertained Petitioner's appeal. See People v. Bentley, 112 A.D.2d 109, 492 N.Y.S.2d 381 (1st Dept. 1985). As described in the Appellate Division opinion, the State charged that on November 15, 1979, Petitioner shot at a gypsy cab driver ("Bunyarko") who had been called to a Bronx apartment building. Bunyarko identified Petitioner as his assailant shortly thereafter and a police officer arrested Bentley soon afterwards. The next morning, the police recovered a series of items including three handguns and almost four ounces of heroin from the roof of a garage below the window of the apartment in which Bentley had been arrested.

 On January 9, 1980, a Bronx County grand jury returned an indictment against Bentley, charging him with second degree attempted murder; criminal possession of a weapon in the second and fourth degrees; reckless endangerment in the first degree; and criminal possession of a controlled substance in the second degree.

 A bench warrant was issued for Bentley's arrest after Bentley, who at that time was out on bail in connection with the above charges, failed to appear in court. On April 8, 1980, Bentley was arrested in Florida and charged in the United States District Court for the Middle District of Florida with various federal firearm violations. He was convicted and sentenced to a term of five years' imprisonment on each of the four counts, with two of the terms to run concurrently with the remaining two terms.

 On January 6, 1981, the Bronx County District Attorney filed with the Federal Correctional Institute in Memphis, Tennessee, a request pursuant to Article IV, Section (c) of the Interstate Agreement on Detainers, New York Criminal Procedure Law ("CPL") § 580.20 to have Bentley returned to New York to face the charges pending in Bronx County Supreme Court. On April 2, 1981, Bentley was returned to Bronx County.

 On January 12, 1982 Bentley filed a motion to dismiss the Bronx indictment pursuant to CPL § 210.20(g) on the grounds that he was denied his right to a speedy trial in violation of CPL § 580.20. The motion was denied.

 On February 17, 1982, after a jury trial, Bentley was found guilty of attempted murder in the second degree (New York Penal Law §§ 110, 125.25(1)) and criminal possession of a controlled substance in the second degree (New York Penal Law § 220.18(1)). At trial, the State successfully introduced evidence concerning the ballistics of the alleged assault weapon, the recovered drugs from the neighboring rooftop and testimony concerning the gypsy cab driver's identification of Bentley as his assailant.

 On March 31, 1982, Bentley filed a motion to set aside the verdict pursuant to CPL §§ 330.30, 330.40 and 330.50 alleging: (1) that the evidence was insufficient to support the conviction; (2) that the indictment was defective; (3) that the prosecutor's summation was improper; (4) that the court's charge was improper; and (5) that the warrantless entry into the apartment violated the Fourth Amendment. On October 27, 1982, the court denied the motion.

 On May 25, 1982, after conviction but before sentencing, Bentley filed his first federal habeas petition in United States District Court for the Southern District of New York, pursuant to 28 U.S.C. § 2254, claiming that he had been denied his right to a speedy trial in violation of the Sixth Amendment and CPL § 580.20. In a memorandum opinion and order dated July 2, 1984, the Honorable Mary Johnson Lowe dismissed Bentley's habeas petition on the grounds that he had failed to exhaust his state remedies.

 On September 9, 1982, Bentley, with the assistance of trial counsel, formalized his January 1982 pretrial motion, which sought dismissal of the indictment on the grounds it violated his right to a speedy trial pursuant to CPL § 580.20. On October 29, 1982, Judge Daniel Sullivan of the Bronx County Supreme Court denied the CPL § 580.20 motion as well as the motions to set aside the verdict recounted above. Bentley on that date was sentenced to concurrent indeterminate terms of imprisonment of from twelve and one-half to twenty-five years on the attempted murder and possession of controlled substances counts.

 On November 9, 1982, Bentley filed a timely notice of appeal requesting review of the denial of his motion to dismiss the indictment on speedy trial grounds and on April 26, 1983, the Appellate Division, First Department, granted Bentley leave to appeal the order of October 29, 1982, and consolidated it with Bentley's appeal from the judgment of conviction also rendered on October 29, 1982.

 The Appellate Division modified Bentley's judgment of conviction to reverse his conviction of Criminal Possession of a Controlled Substance, on the basis that the State failed to prove beyond a reasonable doubt that Petitioner constructively possessed the narcotics, and to otherwise affirm Bentley's judgment of conviction. On October 18, 1985, leave to appeal that decision to the Court of Appeals was denied.

 On September 4, 1986, Bentley moved the Bronx County Supreme Court for a state writ of habeas corpus pursuant to Civil Practice Law and Rules ("CPLR") § 7003(a) alleging: (1) his return to New York was improper on the grounds that he was arrested by the agents of the State of New York without a warrant and proper papers; and (2) his subsequent detention pursuant to his state conviction was also improper, on the ground that the underlying indictment should have been dismissed. On November 12, 1986, the state habeas petition was dismissed.

 In April 1986, Bentley, together with assigned counsel filed a second federal habeas petition in the Southern District of New York alleging: (1) Bentley was denied his Sixth Amendment right to speedy trial; and (2) he was denied due process by prosecutorial misconduct. On April 17, 1989, the Honorable Kenneth Conboy dismissed Bentley's petition without prejudice on the ground that Bentley failed to exhaust his state remedies with respect to his speedy trial claim.

 On August 2, 1989, Bentley moved the Supreme Court, Dutchess County for state habeas relief based on the following grounds: (1) his return to New York violated CPL §§ 570.24, 570.26 in that he was detained and returned without proper papers and that he was further deprived of his right to be brought before a court while represented by counsel prior to his release to New York authorities; (2) he was denied equal protection through the trial court's refusal to allow Bentley to review the documents relating to his extradition to New York; (3) he was improperly sentenced as a second felony offender where the prosecutor failed to file a predicate felony statement and further deprived Bentley of an opportunity to controvert his prior felony conviction in violation of CPL § 400.21(3); (4) the court failed to obtain an updated presentence report prior to the imposition of sentence in violation of CPL § 390.20(1); (5) Bentley was deprived of his right to counsel at sentencing; and (6) the court and the Facility failed to furnish Bentley with a copy of his sentencing minutes in violation of CPL § 380.70. This petition was denied on December 12, 1989 by the Honorable Ralph A. Beisner.

 On August 23, 1989, Bentley sought to vacate his judgment of conviction in Bronx County Supreme Court, pursuant to CPL § 440.10 on the following grounds: (1) he was deprived of his state statutory and Sixth Amendment right to speedy trial; (2) the People failed to prove his guilt beyond a reasonable doubt as there was only one eyewitness of questionable reliability; (3) the prosecutor denied Bentley a fair trial when he stated to the jury that Bentley's guilt could be inferred from the fact that he was on the phone with his lawyer discussing his Forth Amendment rights at the time the police sought to enter his apartment; (4) he was tried in violation of the Interstate Agreement on Detainers; (5) he was deprived of a fair trial through the court's failure to give a proper instruction on "intent," to read back the victim's testimony as requested by the jury, and to separate the frivolous charges before being presented to the jury; (6) he received ineffective assistance of counsel through trial counsel's failure to file proper motions and present a plausible defense, as well as his failure to object to either the prosecutor's misconduct or improper trial procedure; (7) his Fourth Amendment rights were violated when the police entered and remained in his apartment for over ten hours; and (8) he received ineffective assistance of appellate counsel through the attorney's failure to raise certain issues on appeal. This motion was denied, but the order itself was apparently lost from the court file.

 On December 20, 1989, Bentley appealed the denial of this state habeas petition to the Appellate Division, Second Department. Assigned counsel filed a separate brief on behalf of Bentley.

 On March 19, 1990, Bentley renewed his CPL § 440.10 motion to vacate the judgment of conviction raising the identical claims he had asserted in his motion papers dated August 23, 1989.

 On June 22, 1990, the Honorable Daniel Sullivan denied both the August 23, 1990 and the March 19, 1990 CPL § 440.10 motions, and on January 3, 1991, the Appellate Division, First Department denied permission to appeal from that order. On February 8, 1991, the Court of Appeals dismissed Bentley's application to appeal the First Department Order on the grounds that it was not appealable.

 On December 28, 1990, Bentley filed a third CPL § 440.10 motion in Bronx County Supreme Court for dismissal of the indictment on the following grounds: (1) the motion filed on his behalf seeking, inter alia, inspection of the grand jury minutes was never ruled on by the court and further that his attorney was ineffective for allowing the court to ignore the motion; (2) the prosecutor failed to notify Bentley or his attorney of the grand jury proceedings and therefore denied Bentley the right to testify on his own behalf; (3) the prosecutor withheld from the grand jury the fact that Bentley did not live in the apartment where the incident occurred as well as the fact that the gun allegedly used showed no signs of discharge; (4) the officers who testified before the grand jury withheld the fact that a travel bag containing heroin and a travel credit card, both of which were found in the apartment, had names other than Bentley's on them; (5) the instructions to the grand jury were inadequate, as the prosecutor provided only a single reading of the pertinent law; and (6) the proof adduced at the grand jury proceedings was insufficient since there was no direct evidence that Bentley had physical possession of the heroin at any time or that he had any motive to kill or that he even knew the complainant. The motion was denied on April 10, 1981.

 Bentley filed his third federal habeas petition on March 19, 1991 alleging: (1) violation of Bentley's statutory and constitutional rights to speedy trial; (2) insufficiency of the evidence to support a verdict of guilty; (3) prosecutorial misconduct; (4) violation of his Fourth Amendment rights due to the police's search, allegedly without a warrant; (5) ineffective assistance of both trial and appellate counsel; (6) due process violations in the form of erroneous jury instructions. On September 10, 1991, in a memorandum opinion (the "1991 Opinion"), this Court denied Bentley's habeas petition for failure to exhaust his ineffective assistance of appellate counsel claims through a writ of error coram nobis in the state appellate courts.

 On November 19, 1991, Bentley filed a notice of appeal of his denial of habeas relief to the U.S. Court of Appeals for the Second Circuit. On July 21, 1992, the Second Circuit denied Bentley's appeal in a one page order.

 On November 25, 1991, the Appellate Division, Second Department affirmed the judgment of Judge Beisner dismissing Bentley's first state habeas petition. On December 20, 1991, Bentley appealed the order of the Appellate Division to the New York State Court of Appeals which was denied on February 20, 1992.

 On December 3, 1991, in accordance with this Court's Opinion of September 10, 1991, Bentley brought a motion for a writ of error coram nobis in the Appellate Division, First Department, claiming he did not receive effective appellate counsel. On January 23, 1992, the First Department denied the petition, and subsequently, on March 23, 1992, the Court of Appeals dismissed his application for leave to appeal that order.

 On April 9, 1992, Bentley submitted his fifth federal petition for habeas relief to the Pro Se Office of the Southern District of New York raising grounds substantially similar to his third federal petition. That petition was formally filed and initially dismissed on July 8, 1992, sua sponte by the Honorable Charles L. Brieant on the grounds that it essentially duplicated Petitioner's third habeas petition, dismissed by this court on September 10, 1991 for failure to exhaust.

 On July 21, 1992, Bentley filed a Fed. R. Civ. P. Rule 59 motion seeking reconsideration of the order of dismissal. The Court granted the Bentley's motion on the grounds that at the time of the original July 8, 1992 order, Bentley's appeal was still pending before the Second Circuit (which subsequently dismissed the appeal by memo endorsement on July 21, 1992). The Court further held its prior order should be vacated upon reconsideration since Petitioner had duly returned to state court to request review of his claim of ineffective assistance of appellate counsel through a coram nobis, which was denied on January 23, 1992, and a certificate to appeal of which was further denied on March 23, 1992.

 As of January 1994, no federal court has reviewed the merits of Bentley's claims.

 On January 6, 1994, this Court issued a memorandum opinion, see Bentley v. Scully, 92 Civ. 5050, 1994 U.S. Dist. LEXIS 48, (S.D.N.Y. Jan. 6, 1994), which rejected the State's abuse of the writ argument, found that Bentley was at last properly before the Court and, accordingly, permitted the Respondent additional time to address the merits of Bentley's petition.

 Respondent filed its memorandum addressing the merits of Bentley's claims on March 18, 1994 and this habeas petition was considered fully submitted at that time.

 Discussion

 In his habeas petition, Bentley raises eight claims, which may be arranged into three general categories:

 Sixth Amendment -- Speedy Trial Claims

 
(1) Bentley was deprived of his state statutory and Sixth amendment right to a speedy trial;
 
(2) the time limitations provided under the Interstate Agreement on Detainers (the "IAD") was violated;

 Fair Trial Claims

 
(3) the prosecution denied Bentley the right to a fair trial when he informed the jury that Bentley's guilt could be inferred from the fact that he was on the telephone discussing his Fourth Amendment rights at the moment the police sought entry into the apartment;
 
(4) the prosecution failed to prove Bentley's guilt of Attempted Murder in the Second Degree beyond a reasonable doubt because: (a) the ballistic evidence failed to link appellant with the shooting of the complainant; (b) the jury was never told that the complainant was compelled to testify at trial under a material witness order; (c) the complainant's identification of Petitioner at trial was unreliable as it was made in "highly suggestive circumstances;" and (d) there were inconsistencies between the complainant's trial and grand jury testimony;
 
(5) the Court deprived Bentley of a fair trial by failing: to give a proper instruction on intent, to read back the victim's testimony pursuant to the request of the jury, and to separate the frivolous charges before presentation to the jury;
 
(6) counsel failed to file proper motions, present plausible defense, and object to prosecutor's misconduct and improper trial procedure;
 
(7) counsel failed to file a suppression motion on grounds that Bentley's Fourth Amendment rights were violated when police entered and remained in the apartment for more than ten hours;
 
(8) appellate counsel failed to raise certain claims on appeal.

 The first section of this Opinion will address Bentley's speedy trial claims, the second section will focus on his claims that he was denied a right to a fair trial; and the third section will address his concerns regarding the alleged ineffectiveness of his trial and appellate counsel.

 I. Bentley was Afforded his Sixth Amendment Right to a Speedy Trial

 Petitioner claims that he was deprived of his Sixth Amendment guarantee to a speedy trial due to what he alleges to be a total of 284 days of delay chargeable to the prosecution in violation of the 180 days allowed pursuant to N.Y. Crim. Proc. Law § 30.30(a) (McKinney's 1992). *fn1" Petitioner also raises a second "speedy trial" claim based on an alleged violation of the time limitations set forth in Article III of the Interstate Agreement on Detainers (the "IAD").

 In Barker v. Wingo, the Supreme Court set forth four factors for courts to consider when discerning whether a criminal defendant has been denied his Sixth Amendment right to a timely trial: (1) the length of the delay; (2) the reason for the delay; (3) whether or not the defendant asserted his or right; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). "No one of these factors, however, is 'either a necessary or sufficient condition to the finding of a deprivation of the right,' and courts still must engage in a sensitive balancing process whereby the conduct of both the prosecution and the defendant are weighed." Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988), cert. denied, 488 U.S. 1032, 102 L. Ed. 2d 974, 109 S. Ct. 842 (1989).

 Petitioner's speedy trial claim does not have merit for the reasons set forth in the sentencing transcript. (Sentencing Tr. at 15-26.) In the course of Petitioner's sentencing, Judge Sullivan carefully reviewed Bentley's speedy trial claim and computed that the prosecution's delay only consisted of 86 days out of the statutory limit of 180 days. (Sentencing Tr. at 26.) Judge Sullivan determined that the majority of the delay in bringing Bentley to trial was attributable to the Petitioner himself, or his counsel.

 According to the transcript, the following is a chronology of the events surrounding the Petitioner's trial.

 Chronology of Events Surrounding Petitioner's Trial:

 November 15, 1979 Petitioner arrested for shooting at Joseph Bunyarko (Trial Tr. at ...


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