The opinion of the court was delivered by: Scheindlin, District Judge.
Pro se petitioner Richard Davis, a.k.a. Sedrick Perry, brings
this petition for a writ of habeas corpus under 28 U.S.C. § 2254,
seeking to set aside a June 25, 1996 judgment of the Supreme
Court of the State of New York, New York County, convicting him
of burglary in the second degree and petit larceny. Petitioner
challenges his conviction on four grounds: (1) the evidence was
insufficient to support his conviction because he was not given
fair notice that he could not enter the building at issue; (2)
the evidence was insufficient to support his conviction because
he was entering the building to seek employment, not to commit a
crime; (3) his right to a speedy trial was violated; and (4) his
counsel was ineffective.
For the reasons stated below, petitioner's habeas petition is
At petitioner's trial before the Honorable Judge Dorothy A.
Cropper, the prosecution introduced the following evidence.*fn1
On March 27, 1995, at approximately 9:55 a.m., petitioner entered
the personal office of Erin Hoffert ("Hoffert"), a sales
representative employed by First Reliance Insurance
Company ("First Reliance")*fn2. See Trial Transcript ("Tr."),
Ex. J. to 7/28/00 Answer and Affirmation of Jerry Slater in
Opposition to Writ of Habeas Corpus ("Slater Aff."), at 34.
Hoffert, who was seated with her back to the door, heard
petitioner enter the office. See id. She did not turn to greet
petitioner because she assumed he was a messenger picking up or
dropping off papers for her. See id. In the office next door,
Hoffert's boss, Robert Stafford ("Stafford"), also saw petitioner
enter Hoffert's office. See id. at 60, 85. Stafford then
noticed petitioner standing in the doorway of the office, holding
Hoffert's purse and rummaging through its contents. See id. at
33, 61-62. When Stafford yelled at petitioner, Hoffert turned and
saw petitioner with her purse. See id. at 34-35, 39, 61-62.
Stafford and Hoffert, joined by co-worker Nils Hedenger
("Hedenger"), chased petitioner as he fled through the reception
area and into the main hallway by the elevator bank. See id. at
35, 63-64, 100-01. Finding no elevator cars available, petitioner
ran to the men's room, opened the unlocked back entrance to First
Reliance, ran through the office and emerged by the front
entrance reception area. See id. at 36-37, 63-64. Stafford, who
had backtracked to the front, grabbed petitioner. See id. at
64-65. Stafford saw Hoffert's purse "hanging from [petitioner's]
coat" and demanded that petitioner return it. Id. at 38, 40,
64-66. When petitioner said he did not have the purse, a fight
ensued between petitioner and Stafford. See id. at 38, 66-67.
Petitioner pushed Stafford into the main hallway. See id. at
65-66, 101. When Stafford again demanded the purse, petitioner
tried to kick Stafford in the groin, missed, and then kicked him
inside his right leg. See id. at 38, 66-67, 101-103. According
to Stafford, petitioner was flailing and kicking. See id. at
67. Stafford hit petitioner once in the head and knocked him
down.*fn3 See id. at 41, 53, 66-68, 103, 108-109. When
petitioner fell, Hoffert's purse dropped out of his coat. See
id. at 68. Petitioner got up and ran, but was eventually trapped
by the back door, which had been locked during the pursuit. See
id. at 42, 68-69, 104. The building's maintenance team assisted
Stafford and Hedenger in restraining petitioner until the police
arrived. See id. at 18, 70-71, 104.
At trial, Hoffert, Stafford and Hedenger all identified
petitioner as the man they chased through First Reliance's
offices on March 27, 1995. See id. at 39, 69, 105. Hoffert
testified that she never gave appellant permission to enter the
offices of First Reliance and never gave him permission to enter
her private office. See id. at 45-46. She admitted, however,
that she did not see petitioner enter the reception area and did
not see him at all until she heard Stafford scream and saw
petitioner run out of her office with her purse. See id. at
51-52. Stafford testified that he never gave appellant permission
to enter the offices of First Reliance and never saw him come in.
See id. at 78, 83. He did not know whether or not appellant
came in through the reception area or the back door. See id. at
By New York County Indictment Number 2928/95 filed on April 11,
was charged with burglary in the second degree (N.Y. Penal Law
["P.L."] § 140.25(b)(1)), robbery in the second degree (P.L. §
160.10(2)(a)) and five counts of criminal possession of stolen
property (P.L. § 165.45(2)). See Grand Jury Indictment, Ex. C.
to 7/21/99 Motion to Vacate Judgment ("Motion to Vacate"). On
March 23, 1996, petitioner filed a writ of habeas corpus,
pursuant to N.Y.Crim. Pro. Law ("C.P.L.") § 30.30, contending
that his right to a speedy trial had been violated. See Writ of
Habeas Corpus, Ex. C. to 7/21/99 Motion to Vacate. Judge Brenda
Soloff denied and dismissed the writ as moot, noting that
petitioner had been tried and convicted, and was scheduled to be
sentenced on June 24, 1996. See 6/14/96 Order, Ex. C. to
7/21/99 Motion to Vacate.
On June 11, 1996, after a bench trial before Judge Cropper,
petitioner was found guilty of burglary in the second degree and
petit larceny. Tr. at 149. Petitioner was acquitted on all other
charges. Id. On June 25, 1996, defendant was sentenced as a
predicate felon to concurrent prison terms of five to ten years
for burglary in the second degree and one year for petit larceny.
See Sentencing Transcript ("Sent."), Ex. J. to Slater Aff., at
In his direct appeal, petitioner raised three grounds: (1) the
People had not proven his guilt beyond a reasonable doubt on the
burglary charge; (2) his conviction was against the weight of the
evidence; and (3) he was mistakenly sentenced as a predicate
felon. See 2/98 Appellate Brief for Defendant-Appellant
("Brief"), Ex. C. to Slater Aff. The Appellate Division
unanimously affirmed the conviction. See 12/1/98 Decision and
Order of Appellate Division ("Decision of Appellate Division"),
Ex. F. to Slater Aff. The Appellate Division held that (1) the
evidence of burglary in the second degree was legally sufficient
— petitioner's unlicenced entry into a private office within the
offices of First Reliance satisfied the trespassory element of
second degree burglary; (2) the trial court properly rejected
petitioner's untimely notice of intention to present psychiatric
evidence, particularly since that evidence "was irrelevant to
[petitioner's] ability to formulate the necessary intent"; and
(3) the clerical error in the sentence and commitment sheet,
stating that petitioner was adjudicated as a second violent
felony offender, could not have affected the sentence imposed.
Id. The Court of Appeals denied petitioner's leave to appeal.
See People v. Davis, 93 N.Y.2d 872, 689 N.Y.S.2d 434,
711 N.E.2d 648 (1999).
Petitioner subsequently moved to vacate the judgment of
conviction pursuant to C.P.L. § 440.10 on the grounds that (1) he
was denied his right to a speedy trial under C.P.L. § 30.30; and
(2) he was denied his right to the effective assistance of
counsel. See 7/21/99 Motion to Vacate. Judge Cropper dismissed
petitioner's speedy trial claim as "untimely since it was not
made prior to the commencement of the trial in this matter."
10/20/99 Decision and Order of Supreme Court of New York
("Decision of Supreme Court"), Ex. I. to Slater Aff., at 2. Judge
Cropper noted that petitioner, although represented by counsel,
had filed a pro se application for a writ of habeas corpus,
claiming a denial of his speedy trial rights under C.P.L. §
30.30. See id. However, immediately prior to trial,
petitioner's attorney "tacitly withdrew the motion, conceding
that his review of the adjournments in the case did not support
the motion to dismiss the indictment on speedy trial grounds."
Id. Judge Cropper concluded that petitioner's 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, as "only 29 ...