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United States District Court, S.D. New York

March 29, 2004.


The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


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) & (C).


  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 second-degree Page 2 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 weapons offenses.*fn1

  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 Page 3 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 Page 4 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


  This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA permits a federal court to grant a writ Page 5 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 writ,

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 unreasonable.
Wiggins v. Smith, 123 S.Ct. 2527, 2534-35 (2003) (internal quotation marks and Page 6 citations omitted).


  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 Page 7 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 Court:

  [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. Page 8

 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 Page 9 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 Page 10

  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 unavailable Page 11 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. See id.

  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." Page 12

  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 Page 13 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 Page 14 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 Page 15 exactly when a particular defendant's speedy trial right has been violated.").

  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 ineffective Page 16 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 Page 17 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. Page 18


  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.


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