street crime is considerably less than for a serious, complex
conspiracy charge." Barker, 407 U.S. at 531, 92 S.Ct. 2182.
This Court need not decide whether petitioner's fourteen month
delay between indictment and trial is "presumptively prejudicial"
as the remaining Barker factors do not support petitioner's
The reason for the delay factor weighs most heavily against
petitioner. Nothing in the record indicates a willful attempt by
the State to delay the trial. See id. On the contrary,
approximately three months of the delay appear to have resulted
from (1) petitioner's failure to appear; (2) the assignment of
new defense counsel due to petitioner's filing of a complaint
against his attorney; (3) various adjournments for petitioner's
counsel to appear; and (4) adjournments to obtain psychological
evidence. Other time was spent by both petitioner and the State
serving and responding to various pre-trial demands, and
conducting pre-trial conferences and hearings.
Petitioner asserted a speedy trial claim pursuant to C.P.L. §
30.30 a full eleven months after his arrest. Judge Cropper's
findings, supported by the trial record, indicated that
petitioner's attorney "tacitly withdrew [petitioner's C.P.L. §
30.30] motion, conceding that his review of the adjournments in
the case did not support the motion to dismiss the indictment on
speedy trial grounds." 10/20/99 Decision of Supreme Court, at 2.
Judge Cropper denied petitioner's motion to vacate pursuant to
C.P.L. § 440.10, indicating that his speedy trial claim had been
"waived" and, even in the absence of a waiver, petitioner's
counsel was correct in not asserting the speedy trial claim since
only 29 days were attributable to the prosecution. Id.
Last, petitioner can point to no prejudice emanating from the
alleged delay in his trial. The most serious concern here is
whether the defense has been impaired in any way. While
"affirmative proof of particularized prejudice is not essential
to every speedy trial claim," Doggett v. United States,
505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the
general presumption that delay compromises the reliability of a
trial increases in importance with the length of the delay. See
id. Here, with a delay of just over one year, the presumption is
weak. See also Vassell, 970 F.2d at 1165 n. 1 (suggesting an
affirmative showing of prejudice is necessary in absence of
extraordinary delay and government negligence). Petitioner has
not alleged that the delay impaired his ability to present a
defense; in fact, petitioner neither presented any evidence at
trial, nor called any witnesses.
Accordingly, petitioner was not denied his constitutional right
to a speedy trial.
C. Claim III: Ineffective Assistance of Counsel
Petitioner contends that his trial counsel rendered
constitutionally ineffective assistance because he failed to make
a motion to dismiss the indictment under C.P.L. § 30.30, New
York's speedy trial statute.
"To prevail on a claim of ineffective assistance of counsel,
petitioner must satisfy the two-part test established by the
Supreme Court" in Strickland v. Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). Loving v. O'Keefe,
960 F. Supp. 46, 50 (S.D.N.Y. 1997). Petitioner must show that (1) his
attorney's representation was unreasonable under prevailing
professional standards; and (2) there is a reasonable probability
that, but for his attorney's errors, "the result of the
proceeding would have been different." Strickland, 466 U.S. at
694, 104 S.Ct. 2052. Further, there is a strong presumption that
an attorney's decisions made in the course of representing a
client are made in the exercise of reasonable professional
judgment. See id. at 690, 104 S.Ct. 2052.
For the reasons discussed in rejecting petitioners' speedy
trial claim, petitioner's ineffective assistance claim must also
fail. Because petitioner's speedy trial claim would have been
unsuccessful for the reasons
already enunciated, trial counsel's failure to assert the motion
does not constitute ineffective assistance of counsel. See Boyd
v. Hawk, 965 F. Supp. 443, 450 (S.D.N.Y. 1997) (counsel was not
ineffective for failing to make a speedy trial motion that would
not have been successful). The record indicates that there was
ample justification for counsel's decision not to pursue a speedy
Therefore, petitioner's claim that his counsel was ineffective
cannot support his request for habeas relief.
For the foregoing reasons, (1) petitioner's claim of
insufficient evidence to support a conviction lacks merit; (2)
petitioner's claim of speedy trial violation lacks merit; and (3)
petitioner's claim of ineffective assistance of counsel lacks
merit. Because petitioner has failed to make a substantial
showing that he was denied a constitutional right, a certificate
of appealability will not issue from this Court. See
28 U.S.C. § 2253(c)(2); see also Lucidore v. New York State Division of
Parole, 209 F.3d 107, 112 (2d Cir. 2000) (holding that
substantial showing exists where (i) the issues involved in the
case are debatable among jurists of reason or (ii) a court could
resolve the issues in a different manner or (iii) the questions
are adequate to deserve encouragement to proceed further). The
Clerk of the Court is directed to close this case.