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October 27, 1998


The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 Petitioner Michael Erdheim is before this Court on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In a report and recommendation dated August 28, 1998 (the "R & R"), Magistrate Judge Naomi Reice Buchwald recommended that the Court deny Erdheim's petition. The Court overrules petitioner's extensive objections. It writes separately to the extent that the reasons for its conclusion vary from those stated in the R & R.


 Ineffective Assistance of Counsel Claims

 Petitioner raises a host of ineffective assistance of counsel claims. To prevail petitioner must demonstrate both "that counsel's performance was deficient . . . [and] that the deficient performance prejudiced the defense." *fn1" The attorney must be shown to have committed errors "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." *fn2" In assessing an attorney's conduct, the reviewing court must engage in a "highly deferential" review of that conduct and must indulge "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." *fn3" Rather than "grade counsel's performance," it limits itself to determining "whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process." *fn4" The second Strickland prong requires a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." *fn5"

 Failure to Raise CPL § 30.30 Motion

 Erdheim grounds his first ineffective assistance claim in his attorney's failure to move to dismiss his case based on the New York speedy trial provision. *fn6" CPL § 30.30 provides, in pertinent part, for mandatory dismissal of an indictment "where the people are not ready for trial within . . . six months of the commencement of a criminal action." *fn7" Such dismissals ordinarily are with prejudice and thus bar re-prosecution. *fn8"

 Relying on Parron v. Quick,9 respondent argues that petitioner does not have a valid ineffective assistance of counsel claim even if he had a valid Section 30.30 motion. In Parron, the Second Circuit held that a habeas petitioner has not been harmed by trial counsel's failure to raise a state speedy trial motion if the merits of the motion nonetheless were addressed by the state court in a post-trial ineffective assistance of counsel claim. *fn10"

 The facts are similar here -- Erdheim raised this issue on appeal *fn11" and the Appellate Division rejected it. *fn12" The analogy to Parron, however, has no basis. Important in Parron was that "counsel's failure to move earlier was a clearly deficient performance." *fn13" This enabled the circuit to reason that the Appellate Division's rejection of the ineffective assistance of counsel claim was predicated on the failure of petitioner to show prejudice, that is, that the speedy trial claim was meritless. As the Appellate Division's implicit ruling on Section 30.30 was a state law matter, its conclusion was immune from habeas review. *fn14"

 This case differs from Parron. Here, counsel's performance was not so clearly deficient as to allow this Court to presume that the Appellate Division could not have held any other way. *fn15" Thus it is possible that the state court found merit to the speedy trial claim, but denied petitioner's ineffective assistance claim on the basis of Strickland's performance prong. While questions regarding New York's speedy trial act are questions of law, not so are questions regarding a counsel's performance. Since the basis of the Appellate Division's decision is unclear, this Court must determine independently whether counsel's failure to raise the speedy trial motion constituted ineffective assistance of counsel. Upon reviewing the record, the Court finds that petitioner has failed to make the requisite showing under either of Strickland's tests.

 While petitioner clearly would have been prejudiced if his counsel had failed to make a meritorious speedy trial motion, *fn16" it is not evident, to a reasonable probability, that petitioner had such a claim. Section 30.30 permits the People six months from the commencement of a criminal action within which to be ready for trial. Erdheim alleges that 458 days passed in this period, thus barring his re-prosecution. *fn17" The evidence, however, does not support this claim.

 Under Section 30.30, the six-month period is tolled for periods in which motions are under consideration by the court, *fn18" continuances granted at the request of or with the consent of the defendant or his counsel, *fn19" and periods for which defendant lacks counsel. *fn20" During Erdheim's Section 440.10 hearing and on his direct appeal, the People provided an accounting of the time excluded by certain tolls of the six-month period. According to those calculations, although 458 days elapsed between Erdheim's arrest and the People's statement of readiness, 407 of those days were excludable under Section 30.30. *fn21" If this is correct, only 41 days were chargeable to the People, which is far from the six-month statutory limitation.

 Erdheim does not address the statute's tolling provisions in his petition nor contest the People's calculation. *fn22" Since petitioner has not proved that he had a meritorious speedy trial claim, there is no reasonable probability that his counsel's failure to raise the motion affected the outcome of the case. Consequently, his ineffective assistance of counsel claim fails. *fn23"

 Moreover, even if, in hindsight, the failure to raise the speedy trial issue were questionable, Erdheim's position would be without merit because his counsel's performance was not deficient at the time. *fn24" During petitioner's Section 440.10 proceeding, the court took evidence regarding trial counsel's performance. While declining to reach the merits of the issue, *fn25" the court found that:


"the evidence at this hearing establishes that [Erdheim's counsel] was aware of the possibility of [a Section 30.30] motion and was alert to explore the viability of a speedy trial motion because during the pendency of this matter, before the commencement of trial, [counsel] did calculate the relevant time periods and determined that there was no valid 30.30 motion to be made." *fn26"

 The Supreme Court has said that on petitions for habeas corpus, "a federal court is not to overturn a factual conclusion of a state court . . . unless the conclusion is not 'fairly supported by the record.'" *fn27" After examining the record, this Court concludes this finding is adequately supported, *fn28" and thus entitled to deference under 28 U.S.C. § 2254(d)(8). While it is possible that counsel, alert to the possibility of a Section 30.30 motion, nevertheless may be constitutionally ineffective by grievously mistaking the merits of a defendant's position and thus failing to make a winning motion, that is not the case here. Erdheim has failed to articulate any cogent theory on which such a motion might have been made. In consequence, the performance of petitioner's trial counsel did not fall below constitutional standards.

 Pre-indictment Delay

 Petitioner next claims that his counsel failed to object to the delay between the beginning of the police investigation into the Katz complaint *fn29" and his arraignment. This failure, argues petitioner, constituted ineffective assistance of counsel since the remedy for pre-indictment delay is dismissal of the indictment. The claim is unfounded.

 In considering this contention, it is important to bear in mind that the protection against pre-indictment delay afforded by the Constitution is narrower than that available under New York law. As a federal matter, pre-indictment delay "is governed by the due process clause which generally requires a showing of actual prejudice before dismissal would be warranted." *fn30" The New York Court of Appeals nevertheless has held, necessarily as a matter of state law, that an indictment may be dismissed for pre-indictment delay without a showing of prejudice where the delay is unjustifiable *fn31" or it stigmatizes the defendant. *fn32" Erdheim appears to argue that he was deprived of due process of law under both the federal and state constitutions by pre-indictment delay and that his counsel's failure to raise the state constitutional point was constitutionally ineffective assistance.

 Erdheim has not demonstrated any prejudice arising from the government's delay in indicting him. In consequence, his federal due process claim, if any, is without merit. And while the lack of a showing of prejudice flowing from pre-indictment delay is not fatal under New York law where the People cannot justify the delay or where the defendant has been stigmatized by the charge during the period of delay, neither circumstance obtains here. The People had good cause for any delay prior to indictment, *fn33" and petitioner was not negatively stigmatized during the period of delay for the simple reason that neither he nor the public was aware of the initial complaint filed by Katz. *fn34" Since there is no support for the dismissal of petitioner's indictment for delay, he has not met the requisite showing of prejudice flowing from ineffectiveness of counsel. *fn35"

 Failure to Obtain Handwriting Expert

 Petitioner maintains that his attorney fell below the Strickland level of competence in failing to obtain a handwriting expert to attest to the genuineness of a signature on an allegedly forged document. Under Strickland, "an error by counsel . . . does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." *fn36" Petitioner has not, however, demonstrated that the testimony of an expert probably would have led to a different judgment. *fn37" His claim therefore fails.

 Failure to Object to the Jury Charge

 1. Corroboration Charge

 Petitioner contends that his counsel failed to object to the jury charge, which omitted the requirement that the People corroborate Morrissey's testimony regarding petitioner's false statements. *fn38" There is no dispute that the charge should have been given. Any error, however, was harmless because the People discharged the statutorily required burden. The corroborating testimony rule "does not require that the People prove the falsity of the statement by the direct testimony of two witnesses. A single witness will suffice provided there are 'independent corroborative circumstances.' In fact the issue may be 'determined upon circumstantial proof' alone." *fn39" In light of the ample evidence corroborating Morrissey's testimony, *fn40" the error was harmless and counsel's failure to object did not prejudice petitioner. *fn41"

 2. Natural Consequences of His Actions Charge

 Petitioner claims that his counsel ought to have objected to the trial court's charge that the "'law presumes that a person intends the natural and probable consequences of his actions.'" *fn42" While this Court agrees that such language would be problematic under Sandstrom v. Montana,43 the record belies Erdheim's claim. Contrary to petitioner's representation, the trial court instructed the jury that "the law also permits you, but does not require you to infer that a person intends the natural and probable consequences of his actions." *fn44" This instruction did not shift the burden of proof to petitioner. *fn45" Erdheim therefore suffered no prejudice from counsel's failure to object to it.

 Counsel's Failure to Object to the Allegedly Repugnant Verdict

 Petitioner taxes counsel's effectiveness, claiming that he failed to object to allegedly inconsistent verdicts returned by the jury. The Court adopts the reasoning of the R & R on this point and notes that this claim fails also in light of United States v. Zane, which recognized that it "is well settled that even plainly inconsistent jury verdicts, simultaneously rendered [in criminal cases] are the jury's prerogative." *fn46" Petitioner therefore cannot demonstrate any prejudice resulting from his counsel's failure to raise a repugnant verdict claim.

 Alleged Violations of Brady and the Confrontation Clause

 Brady Violations

 Petitioner contends that the People failed to produce certain exculpatory material in violation of Brady v. Maryland.47

 As an initial matter, petitioner fails to demonstrate that any of the material sought would have been favorable to him or that there is a reasonable probability that prior disclosure would have changed the outcome. *fn48" Absent such a showing, petitioner's claim fails.

 Turning to the specifics, petitioner argues first that the government failed to produce transcripts of an arbitration proceeding involving Prudential-Bache. This alleged failure did not violate Brady. "The rationale underlying Brady is not to supply a defendant with all the evidence in the Government's possession which might conceivably assist the preparation of his defense, but to assure that the defendant will not be denied access to exculpatory evidence only known to the Government." *fn49" Here, the alleged exculpatory evidence was known to petitioner. *fn50" "The court sees nothing in Brady that places the burden of acquiring the . . . materials on the government. The defendant[] [was] aware of the material sought and may [have] obtained it as readily as the government." *fn51" Petitioner's allegation fails also in that the People did not have possession of the transcripts. *fn52" The fact that the material could not have been obtained without a court order *fn53" does not ipso facto place it in the government's possession.

 With respect to petitioner's claims that the prosecution should have turned over Katz's tax records and statements taken during Katz's first complaint in 1991, the Court adopts the reasoning of the R & R. *fn54"

 Confrontation Clause

 Petitioner's additional claim that the failure of the People to turn over the above material violated his constitutional right to confrontation is frivolous. The Confrontation Clause provides simply that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." *fn55" Petitioner was not denied a right to confront witnesses because the People did not use any of the material at issue as evidence against petitioner.


 The petition for a writ of habeas corpus is denied and dismissed. There having been no substantial showing of the denial of a constitutional right, the Court declines to issue a certificate of appealability and certifies that any appeal would not be taken in good faith within the meaning of 28 U.S.C. § 1915.


 Dated: October 27, 1998

 Lewis A. Kaplan

 United States District Judge

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