United States District Court, S.D. New York
March 29, 2004.
VICTOR CASTILLO, Petitioner -against- GARY F. HODGES, SUPT., GOWANDA CORRECTIONAL FACILITY, Respondent
The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
OPINION AND ORDER
Victor Castillo, proceeding pro se, seeks a federal writ of habeas
corpus pursuant to section 2254 of Title 28 of the United States Code
("section 2254"). In his petition, Castillo ("petitioner") claims that:
(1) his guilty plea was not knowing and voluntary; (2) he received
ineffective assistance of counsel; and (3) the thirty-four month delay
from petitioner's arrest to his guilty plea was excessive and deprived
him of his constitutional and statutory rights to a speedy trial.
See 1/13/01 Petition Under 28 U.S.C. § 2254 For Writ Of
Habeas Corpus By A Person In State Custody ("Petition") ¶ 12(A), (B)
A. Pre-Trial Proceedings
An indictment was filed on February 7, 1994, in connection with a
shooting that occurred in the Bronx. Petitioner was charged with
murder and first-degree manslaughter for the death of Erskine
Lavender. Petitioner was charged with attempted murder and assault for
the injury to Anthony Buress. Petitioner was also charged with various
On February 22, 1994, petitioner was arraigned and pleaded not guilty.
On October 8, 1996, petitioner filed a pro se motion to dismiss the
indictment on the ground that he was denied his statutory and
constitutional rights to a speedy trial.*fn2 See Notice of
Motion, Ex. 7 to the Affidavit in Opposition of Danielle L. Attias,
Assistant District Attorney ("Attias Aff.") (citing N.Y. Crim. Proc. Law
("CPL") § 30.20 (McKinney 2003); N.Y. Civil Rights Law § 12
(McKinney 1992); and the Sixth Amendment to the United States
Constitution). On October 28, 1996, petitioner pled guilty to
Manslaughter in the First Degree in full satisfaction of Indictment No.
495-94. On December 5, 1996, the court denied
petitioner's motion to dismiss without opinion. That same day,
petitioner was sentenced, as a second felony offender, to an
indeterminate term of seven to fourteen years imprisonment. See
Attias Aff. ¶ 5.
B. Post-Conviction Proceedings
Castillo only raised his speedy trial claim (the third ground raised in
his habeas petition) in his direct appeal to the New York State Supreme
Court, Appellate Division, First Department. See Brief for
Defendant-Appellant, Ex. 1 to the Attias Aff., at 11. The First
Department found petitioner's constitutional speedy trial claim to be
unreviewable because petitioner failed to provide the minutes for the
relevant adjournment dates in support of his claim.*fn3 See People
v. Castillo, 697 N.Y.S.2d 249 (1st Dep't 1999), Ex. 3 to the Attias
Aff. In the alternative, the court found that "an analysis of the
Taranovich factors indicates that defendant was not denied his
constitutional right to a speedy trial." Id. (citing
People v. Taranovich, 37 N.Y.2d 442 (1975)).*fn4
Petitioner's conviction was unanimously affirmed. See id.
Petitioner sought leave to appeal to the New York Court of Appeals on
October 29, 1999. See Attias Aff. ¶ 8. On January 26, 2000,
leave to appeal was denied. See id.
Petitioner subsequently raised his invalid guilty plea and ineffective
assistance of counsel claims in a motion pursuant to CPL § 440.10
("440.10"). Petitioner's 440.10 motion was denied without opinion by
Justice Byrne of the New York State Supreme Court, Bronx County, on April
16, 2003. Petitioner did not appeal the denial of his 440.10 motion to
the First Department.*fn5
II. LEGAL STANDARD
This petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"). AEDPA permits a federal court to grant a
of habeas corpus to a state prisoner only if the state court's
denial of relief "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
As explained by the Supreme Court, a state court decision is "contrary
to" clearly established federal law if: (1) the state court reaches a
different result than that mandated by the Supreme Court when presented
with facts that are "materially indistinguishable from a relevant Supreme
Court precedent"; or (2) the state court "applies a rule that contradicts
the governing law set forth in Supreme Court cases." Williams v.
Taylor, 529 U.S. 362, 404-05 (2000). The "unreasonable application"
prong of § 2254(d)(1) permits a federal habeas court to grant the
if the state court identifies the correct
governing legal principle from this Court's
decisions but unreasonably applies that principle
to the facts of petitioner's case. In other words,
a federal court may grant relief when a state
court has misapplied a governing legal principle
to a set of facts different from those of the case
in which the principle was announced. In order for
a federal court to find a state court's
application of our precedent "unreasonable," the
state court's decision must have been more than
incorrect or erroneous. The state court's
application must have been objectively
Wiggins v. Smith, 123 S.Ct. 2527
, 2534-35 (2003) (internal
quotation marks and
A. Adequate and Independent State Ground
The First Department denied petitioner's constitutional speedy trial
claim on the ground that it was "unreviewable, since he has provided the
minutes of only one of the numerous relevant adjournment dates."
Castillo, 697 N.Y.S.2d at 249. The court found a state
procedural bar, namely, failure to preserve the claim for appellate
review.*fn6 See People v. Butler, 678 N.Y.S.2d 896 (1st Dep't
1998) (finding defendant's speedy trial claim to be unreviewable due, in
part, to defendant's failure to provide the court with the relevant
minutes); People v. Calderon, 636 N.Y.S.2d 1005 (1st Dep't 1996)
("[A]ppellate `review is precluded by lack of an adequate record that
includes, among other things, the minutes of any adjournments.'")
(quoting Brisko, 631 N.Y.S.2d at 517).
A federal court generally may not review a state court decision that
expressly relies on a procedural default as an independent and adequate
state ground for dismissal. See Coleman v. Thompson,
501 U.S. 722, 729 (1991); Fama v. Commissioner of Corr. Servs.,
235 F.3d 804, 809 (2d Cir. 2000). This
rule applies even where the state court has also ruled on the
merits of the claim in the alternative. See Harris v. Reed,
489 U.S. 255, 264 n.10 (1989) ("[A] state court need not fear reaching the
merits of a federal claim in an alternative holding. By its very
definition, the adequate and independent state ground doctrine requires
the federal court to honor a state holding that is a sufficient basis for
the state court's judgment, even when the state court also relies on
federal law.") (emphasis in original).
To excuse a procedural default, a petitioner must show cause for the
default and prejudice or, alternatively, that a fundamental miscarriage
of justice would result if federal review of the claim is foreclosed.
See Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Murray v.
Carrier, 477 U.S. 478, 496 (1986). As explained by the Supreme
[T]he question of cause for a procedural default
does not turn on whether counsel erred or on the
kind of error counsel may have made. So long as a
defendant is represented by counsel whose
performance is not constitutionally ineffective
under the standard established in Strickland
v. Washington . . . we discern no inequity in
requiring him to bear the risk of attorney error
that results in a procedural default. Instead, we
think that the existence of cause for a procedural
default must ordinarily turn on whether the
prisoner can show that some objective factor
external to the defense impeded counsel's efforts
to comply with the State's procedural rule.
Murray, 477 U.S. at 488. Because petitioner's trial
counsel was not constitutionally ineffective, see infra,
petitioner has failed to demonstrate the cause needed to excuse his
procedural default. Furthermore, a "fundamental miscarriage of justice"
occurs only in extraordinary cases "`where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.'"
Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) (quoting
Murray, 477 U.S. at 496). Petitioner cannot possibly show that
he is actually innocent given his guilty plea and his admission that he
shot Erskine Lavender on January 7, 1994. Petitioner has therefore failed
to satisfy either the cause and prejudice or fundamental miscarriage of
justice exceptions to the procedural bar rule. Accordingly, petitioner's
speedy trial claim is hereby dismissed as procedurally forfeited.
B. Exhaustion of State Remedies
"[A] petitioner must present his federal constitutional claims to the
highest court of the state before a federal court may consider the merits
of the petition." Grey v. Hoke, 933 F.2d 117, 119 (2d Cir.
1991). In opposing the instant petition, Respondent argued that because
petitioner never raised his ineffective assistance of counsel or
involuntary plea claims in state court, those claims are unexhausted.
Respondent further argued that petitioner has no available state
forum in which to pursue those claims and, therefore, such claims
should be deemed exhausted and procedurally forfeited. This Court
disagreed, finding petitioner's ineffective assistance and involuntary
plea claims to be outside the record. As such, presentation of these
claims to the state court was available by way of a 440.10 motion.
Accordingly, petitioner was directed to file a 440.10 motion raising
these claims and renew the instant petition after the state court
reviewed his claims or decided that those claims were unreviewable.
See Memorandum Opinion and Order dated February 14, 2003.
Petitioner filed a 440.10 motion on March 13, 2003, which was denied by
the trial court on April 16, 2003. Petitioner had thirty days from April
16, 2003, in which to seek permission to appeal from the First
Department. See CPL § 460.10(4)(a) ("Within thirty days
after service upon the defendant of a copy of the order sought to be
appealed, the defendant must make application, pursuant to section
460.15, for a certificate granting leave to appeal to the intermediate
appellate court."). Petitioner did not obtain a certificate from the
First Department granting him leave to appeal the denial of this motion.
See CPL §§ 450.15, 460.15.*fn7
In Pesina v. Johnson, 913 F.2d 53 (2d Cir. 1990) (per curiam),
the petitioner filed a 440.10 motion but did not seek leave to appeal its
denial to the Appellate Division. The Second Circuit was confronted with
the question of whether the claim raised in petitioner's 440.10 motion
was, or should be deemed, exhausted because the statutory time limit for
seeking leave to appeal had passed. The court answered this question in
the negative, stating:
While that statutory limit may ultimately be held
by state courts to preclude them from reaching the
merits of Pesina's ineffective assistance claim,
he must still present that claim to the highest
state court. We have no authority to declare as a
matter of state law that an appeal from the denial
of his original Section 440.10 motion is
or that he cannot raise the ineffective
assistance claim in a new Section 440.10 action.
Until Pesina presents his claim to the highest
state court whether or not it seems likely that
he will be held to be procedurally barred he has
not exhausted available state procedures. See
28 U.S.C. § 2254(c).
Id. at 54. The district court found the petition to be "mixed"
and dismissed it in its entirety. This decision was upheld on appeal.
The Pesina rule has been called into question by several
district courts based on Bossett v. Walker, 41 F.3d 825 (2d Cir.
1994), and Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997),
which note that it is pointless to require a habeas petitioner to return
to state court to pursue a claim that is obviously procedurally barred.
See, e.g., Rashid v. Kuhlman., No. 97 Civ. 3037, 2000 WL
1855114, at *8 (S.D.N.Y. Dec. 19, 2000); Thomas v. Greiner,
111 F. Supp.2d 271, 277-78 (S.D.N.Y. 2000); Devito v. Racette, No,
CV-91-2331, 1992 WL 198150, at *4 (E.D.N.Y. Aug. 3, 1992). These cases
rely principally on the reasoning of Coleman v. Thompson,
501 U.S. 722, 729 (1991), which held that the independent and adequate state
ground "doctrine applies to bar federal habeas when a state court
declined to address a prisoner's federal claims because the prisoner had
failed to meet a state procedural requirement."
In Thomas, the court explained why it concluded that
Pesina was no longer good law after Coleman.
[A]lthough the Second Circuit has not explicitly
disavowed this aspect of Pesina, it has
since explained that federal courts should dismiss
with prejudice where "New York procedural rules
plainly bar petitioner from attempting to raise
his" claims in state court. Grey v. Hoke,
933 F.2d at 120. . . . There is no reason to
exempt from this general rule a petition for leave
to appeal the denial of a CPL § 440.10 motion
where the time to bring such a petition has
expired. I agree with Chief Judge Sifton's
reasoning in a case with an identical posture:
"Coleman appears to put to rest
Pesina's concern that federal courts lack
the `authority' to declare claims procedurally
defaulted at the state level." DeVito v.
Racette, 1992 WL 198150 at *5. The rule
articulated in DeVito is appropriate
here. Since it is clear that the claims Thomas had
brought in his CPL § 440.10 motion would be
denied as untimely if brought back to the state
courts, to require him to do so would be wasteful
of judicial resources. . . . In order to comply
with Coleman, the federal courts must at
some point do what Pesina declined to
do "declare as a matter of state law that
an appeal . . . is unavailable." Pesina v.
Johnson, 913 F.2d at 54. Accordingly,
Thomas's speedy trial and excessive sentence
claims are procedurally defaulted by his failure
to seek leave to appeal the denial of his CPL
§ 440.10 motion.
Thomas, 111 F. Supp.2d at 277-78. This reasoning is
persuasive. Because petitioner failed to appeal the denial of his 440.10
motion, the claims raised therein are deemed exhausted. However, the
claims are also procedurally forfeited. Accordingly, application of the
procedural bar rule mandates the
dismissal of petitioner's ineffective assistance and involuntary
plea claims. Even if not procedurally defaulted, these claims would
nonetheless be dismissed as being devoid of merit.
C. Ineffective Assistance of Counsel
The Sixth Amendment guarantees a fair trial and competent counsel in
all criminal prosecutions. See U.S. Const. amend. VI. The Sixth
Amendment "`stands as a constant admonition that if the constitutional
safeguards it provides be lost, justice will not still be done.'"
Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (quoting
Johnson v. Zerbst, 304 U.S. 458, 462 (1938)). In judging any
claim of ineffectiveness, a reviewing court must begin with a "strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance," taking a "highly deferential" view
of counsel's performance without the benefit of hindsight. Strickland
v. Washington, 466 U.S. 668, 689 (1984).
To prove that counsel was Constitutionally ineffective, a petitioner
must satisfy the two-part test established in Strickland. A
petitioner must first show that his counsel's representation fell below
"an objective standard of reasonableness" under "prevailing professional
norms." Strickland, 466 U.S. at 688. To fall below this
standard, counsel must have made "errors so serious that counsel was not
functioning as the `counsel' guaranteed by the Sixth
Amendment." Id. at 687. The second prong requires a
petitioner to show that he was prejudiced by his counsel's conduct. To
show prejudice, a petitioner must demonstrate that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of
the proceeding would have been different." Id. at 694.
Petitioner claims that he was deprived of effective assistance of
counsel because his trial attorney: (1) did not file a speedy trial
motion on his behalf; and (2) did not inform him that he could appeal the
trial court's denial of his pro se motion to dismiss the indictment.
See Petition ¶ 12(B). With regard to the first claim, a
court will not entertain a constitutional speedy trial claim unless "the
interval between accusation and trial has crossed the threshold dividing
ordinary from `presumptively prejudicial' delay." Doggett v. United
States, 505 U.S. 647, 651-52 (1992) (quoting Barker v.
Wingo, 407 U.S. 514, 530 (1972)). Given the Second Circuit's
observation that courts themselves "have been unable to define
`presumptively prejudicial,'" United States v. Vassell,
970 F.2d 1162, 1164 (2d Cir. 1992), it cannot be said that trial counsel's
failure to take action with respect to petitioner's speedy trial rights
fell outside the "wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689. See also Rayborn v.
Scully, 858 F.2d 84, 89 (2d Cir. 1988) ("[I]t is almost impossible
to say with precision
exactly when a particular defendant's speedy trial right has been
Assuming, arguendo, that trial counsel's failure to bring a
speedy trial motion was error, petitioner cannot show ineffectiveness
under Strickland because he fails the prejudice prong.
Petitioner's speedy trial claim, although not raised by his trial
counsel, was raised on appeal. Given the First Department's alternative
holding that petitioner was not denied his constitutional right
to a speedy trial petitioner's speedy trial claim would have been
dismissed earlier in the proceedings if raised by trial counsel.
Therefore, petitioner was not prejudiced by his attorney's failure to
bring a claim lacking in merit. This same logic applies to petitioner's
second claim of ineffectiveness that his attorney failed to
advise him that he could appeal the denial of his pro se speedy trial
motion. Because petitioner's speedy trial claim was ultimately raised by
appellate counsel and was deemed to be without merit, petitioner was
similarly not prejudiced by the failure of his trial counsel to advise
him of his appellate rights. For these reasons, petitioner's ineffective
assistance of counsel claim lacks merit and must be dismissed even if
there were no procedural bar.
D. Invalid Guilty Plea
The Supreme Court has held "that the two-part Strickland v.
Washington test applies to challenges to guilty pleas based on
assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58
(1985). To establish an ineffective assistance claim within the context
of a guilty plea, a petitioner must show that his counsel's
constitutionally ineffective performance affected the outcome of the plea
process such that "there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Id. at 59. See also United
States v. Coffin, 76 F.3d 494, 497 (2d Cir. 1996) ("A defendant who
pleads guilty unconditionally while represented by counsel may not assert
independent claims relating to events occurring prior to the entry of the
guilty plea. `He may only attack the voluntary and intelligent character
of the guilty plea by showing that the advice he received from counsel
was not within [acceptable] standards.'" (quoting Tollett v.
Henderson, 411 U.S. 258, 267(1973) (alteration in original)).
Petitioner claims that his attorney failed to explain that he would be
giving up certain rights by pleading guilty. See Petition ¶
12. Consequently, petitioner's guilty plea was arguably not made
voluntarily with the understanding of the nature of the charge and the
consequences of the plea. See id. This claim is belied by
petitioner's plea allocution where petitioner assured the court that he
was pleading guilty freely and voluntarily. See 10/28/96 Plea
Transcript at 3. Petitioner further affirmed that he understood that by
pleading guilty he waived
his trial rights. See id. at 5-6. Defendant then admitted
that on January 7, 1994, he shot Erskine Lavender with the intent to
inflict serious physical injury. See id. at 7. In exchange for
his guilty plea, the court agreed to sentence him to a seven to fourteen
year term of imprisonment.*fn8 See id. at 8-9.
A guilty plea must represent "a voluntary and intelligent choice among
the alternative courses of action open to the defendant." North
Carolina v. Alford, 400 U.S. 25, 31 (1970). The voluntariness of a
plea of guilty, however, should be determined by considering all of the
relevant circumstances. See Brady v. United States,
397 U.S. 742, 749 (1970). Assuming petitioner's attorney failed to adequately
explain the rights he would be giving up by pleading guilty, that
explanation was provided by the trial judge at the plea allocution. If
petitioner truly did not understand the consequences of his plea after
his colloquy with the judge, he should not have pled guilty. By pleading
guilty after a thorough and detailed allocution, petitioner has
foreclosed any claim that his plea was not knowing, intelligent and
voluntary. Accordingly, petitioner's involuntary plea claim is without
merit and can be dismissed on this alternative basis.
Finally, there is the question of whether to grant a certificate of
appealability. For a certificate of appealability to issue, petitioner
must make a "substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(2). "A "substantial showing" does not
require a petitioner to demonstrate that he would prevail on the merits,
but merely that "reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that the
issues presented were `adequate to deserve encouragement to proceed
further.'" Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002),
cert. denied, 538 U.S. 950 (2003) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and
citation omitted)). Petitioner has made no such showing in this case.
Accordingly, this Court denies a certificate of appealability. The Clerk
of the Court is directed to close this case.