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ERDHEIM v. GREINER

October 27, 1998

MICHAEL ERDHEIM, Petitioner, against CHARLES H. GREINER, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, Respondent.


The opinion of the court was delivered by: KAPLAN

MEMORANDUM OPINION

 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.

 Discussion

 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 ...


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