United States District Court, S.D. New York
June 20, 2005.
SCOTT PARRILLA, Petitioner,
GLENN S. GOORD, Commissioner of Department of Correctional Services Respondent.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
Petitioner Scott Parrilla filed a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, seeking an Order vacating his
conviction for Attempted Murder in the Second Degree in the
Supreme Court of the State of New York, Bronx County. On July 9,
2004, Magistrate Judge Theodore H. Katz issued the annexed report
and recommendation recommending that this petition be denied in
its entirety. This Court conducted a de novo review of
petitioner's objections and the full record herein. After a
complete review, this Court finds the objections to be without
merit. Accordingly, it is
ORDERED that this Court adopts the well-reasoned report of
Magistrate Judge Theodore H. Katz, dated July 9, 2004,
recommending that this petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 be denied. It is
FURTHER ORDERED that this petition for a writ of habeas corpus
is denied in its entirety. It is
FURTHER ORDERED that because petitioner has not made a
substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. See 28 U.S.C. § 2253(c), as amended by the Antiterrorism and Effective
Death Penalty Act of 1996. In addition, this Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438 (1962).
The Clerk is directed to close this case.
SO ORDERED: REPORT AND RECOMMENDATION
FROM: THEODORE H. KATZ, United States Magistrate Judge. TO:
HON. WILLIAM H. PAULEY III, United States District Judge.
This habeas corpus proceeding was referred to this Court for a
Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B)
and (C) and Rule 72.1(d) of the Southern District of New York
Local Civil Rules. Petitioner, a New York State prisoner, pled
guilty to Attempted Murder in the Second Degree (New York Penal
Law §§ 110/125.25 (1)), in New York Supreme Court, Bronx County,
in exchange for an indeterminate sentence of seven-and-one-half
to fifteen years. He now seeks habeas relief pursuant to
28 U.S.C. § 2254, claiming that his conviction resulted from the
deprivation of his constitutional rights, insofar as: (1) he was
denied his Sixth Amendment right to a speedy trial; (2) he was
denied the effective assistance of counsel because counsel failed
to submit several meritorious motions (including speedy trial motions) on his behalf, which caused him to enter a guilty plea
involuntarily; and (3) he was denied the right to be indicted by
a grand jury, when the trial court allowed the People to amend a
jurisdictionally defective indictment. Respondent argues that
petitioner's first and second claims should be dismissed because
the Appellate Division's rejection of these claims was neither
contrary to, nor an unreasonable application of, clearly
established federal law, and that there is no basis for habeas
corpus review of Petitioner's third claim, as it is partially
unexhausted and does not implicate a federal constitutional
For the reasons that follow, this Court respectfully recommends
that the Petition be dismissed with prejudice.
Petitioner was arrested on September 24, 1993, for the attack
of Keila C. (Affidavit of Assistant District Attorney David S.
Weisel, dated Mar. 21, 2003 ("Weisel Aff.") ¶ 3.) On October 7,
1993, the Grand Jury of Bronx County indicted Petitioner for one
count of Attempted Murder in the Second Degree; three counts of
Rape in the First Degree; two counts of Assault in the First
Degree; two counts of Assault in the Second Degree; and one count
of Intimidating a Victim or Witness in the Third Degree. (See
Indictment, Weisel Aff. Ex. 1.) The crimes were alleged to have
occurred "on or about and between September 10, 1993 and November 30, 1993." (See id.) The People moved
to amend the indictment by Notice of Motion dated March 8, 1994,
pursuant to N.Y. Crim. Proc. Law § 200.70, to allege that the
crimes charged in counts one through eight of the indictment took
place "on or about and between September 10, 1993 and September
11, 1993," and that the charge set forth in count nine
(Intimidating a Victim or Witness in the Third Degree) took place
"on or about and between September 25, 1993 and September 26,
1993." (See Motion to Amend Indictment, Weisel Aff. Ex. 3.) On
March 21, 1994, the court granted the motion. (See Order
Granting Amendment, dated Mar. 21, 1994, Weisel Aff. Ex. 4;
Def.-Appellant Br. at 2-3, Weisel Aff. Ex. 14.)*fn1
The first attorney to represent Petitioner for a significant
amount of time was Alvin C. Morris. Mr. Morris submitted several
pre-trial motions on Petitioner's behalf, including a motion for
a suppression hearing regarding Petitioner's arrest and the search of his apartment, and a motion to inspect the Grand Jury
minutes or dismiss the indictment. (Weisel Aff. ¶¶ 5-7.) In
addition, Petitioner submitted several pro se motions. (Id.
¶¶ 7-8.) On numerous appearance dates between January 1994 and
February 1996, either Petitioner or defense counsel was not
present in court. (Id. ¶ 9.) Mr. Morris was frequently ill, and
died of cancer on July 11, 1996. (See Letter from Attorney for
Morris Estate, dated Oct. 16, 1996, Weisel Aff. Ex. 9.) After Mr.
Morris failed to appear on February 27, 1996, he was relieved,
and James C. Hodge was appointed as Petitioner's counsel. (Weisel
Aff. ¶ 10.)
On June 11, 1996, Petitioner pled guilty to Attempted Murder in
the Second Degree, in violation of New York Penal Law §§
110/125.25(1). At the sentencing hearing, the complaining
witness, Keila C., testified in detail, describing her assault by
Petitioner, whom she had known as a friend. (See Respondent's
Appellate Brief ("Resp't Br."), at 4-6.) Petitioner acknowledged
in his plea allocution that he attempted to cause the death of
Keila C. by stabbing her multiple times in the chest and upper
body. (See id. at 3-4.) Petitioner made a statement in which
he apologized and took "full responsibility for any [of his]
irresponsible actions." (See id. at 6.) Petitioner affirmed
that he was "satisfied" with his attorney. (See id. at 3.) Petitioner was sentenced to an indeterminate prison term of from
seven-and-one-half to fifteen years.
On January 22, 1998, Petitioner filed a pro se motion to
vacate the judgment of his conviction, pursuant to N.Y. Crim.
Proc. Law § 440.10, arguing that he had been denied effective
assistance of counsel because his counsel failed to file a motion
to dismiss the indictment based upon: (1) a speedy trial
violation; and (2) a defective indictment that charged a future
crime. (See Petitioner's § 440.10 Motion, Weisel Aff. Ex. 13;
Def.-Appellant Br. at 4.) Petitioner also complained that on two
occasions Mr. Hodge told him to get his case files from Mr.
Morris, either on his own or through a private investigator.
(Resp't Br. at 7.) The Supreme Court, Bronx County denied the
motion on the grounds that the claims "could have been or will be
raised on appeal." (Order, dated May 27, 1998, Weisel Aff. Ex.
Petitioner's application to appeal the denial of his § 440.10
motion was granted by the Appellate Division, First Department.
(See Weisel Aff. ¶ 19.) The appeal was consolidated with
Petitioner's direct appeal, which asserted three claims: (1) the
trial court improperly permitted the People to amend the
indictment where it charged a future crime; (2) the court should
have summarily granted Petitioner's pro se constitutional
speedy trial motion, or alternatively should have held a hearing;
(3) the court below erred when it summarily denied Petitioner's §
440.10 motion. (See id. ¶¶ 19-20; Def-Appellant Br.,
On September 13, 2001, the Appellate Division affirmed
Petitioner's conviction. See People v. Parrilla,
285 A.D.2d 157, 730 N.Y.S.2d 301 (1st Dep't 2001). The court considered
whether an indictment that contains the dates on which crimes
were committed, but also includes time periods post-dating the
indictment, was jurisdictionally defective and not subject to
amendment. The court relied on Crim. Proc. Law § 200.70(1), which
states that an indictment may be amended "[a]t any time before
trial . . . with respect to defects, errors or variances . . .
relating to matters of form, time, place, names of persons and
the like." Id. at 160, 730 N.Y.S.2d at 303. The court held that
"the same charges . . . are manifested in the original
indictment; dates were only pared off in a manner that did not
change the theory of the prosecution." Id. at 162,
730 N.Y.S.2d at 304. Thus, the indictment was in fact amendable with respect
to time, and not jurisdictionally defective. The court dismissed
Petitioner's other two claims as "without merit." Id. at 162,
730 N.Y.S.2d at 305.
On November 6, 2001, the New York Court of Appeals denied leave
to appeal. See People v. Parrilla, 97 N.Y.2d 657,
737 N.Y.S.2d 58 (2001). On April 22, 2002, the United States Supreme Court denied Petitioner's application for a writ of certiorari.
See Parrilla v. New York, 535 U.S. 1020, 122 S. Ct. 1613
The instant Petition followed.
I. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act
("AEDPA"), a federal court may grant habeas relief to a state
prisoner only if a state court conviction resulted in a decision
that 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), or if it was
"based on an unreasonable determination of the facts in light of
the evidence presented in state court." Id. § 2254(d)(2).
A state court decision is "contrary to" clearly established
federal law if "the state court arrives at a conclusion opposite
to that reached by [the Supreme Court] on a question of law," or
if "the state court decides a case differently than [the Supreme
Court] has on a set of materially indistinguishable facts."
Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523
(2000); see also Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir.
2000); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). The
phrase, "clearly established Federal law, as determined by the
Supreme Court of the United States," limits the law governing a
habeas petitioner's claims to the holdings (not dicta) of the
Supreme Court existing at the time of the relevant state-court decision.
Williams, 529 U.S. at 413, 120 S. Ct. at 1523; see also
Leslie, 230 F.3d at 32.
A state court decision is based on an "unreasonable
application" of Supreme Court precedent if it correctly
identified the governing legal rule, but applied it in an
unreasonable manner to the facts of a particular case.
Williams, 529 U.S. at 413, 120 S. Ct. at 1523. The inquiry for
a federal habeas court is not whether the state court's
application of the governing law was merely erroneous or
incorrect, but rather whether it was "objectively unreasonable."
See id. at 408-10, 120 S. Ct. at 1521-22; see also Lurie v.
Wittner, 228 F.3d 113, 128-29 (2d Cir. 2000).
Under AEDPA, "a determination of a factual issue made by a
State court shall be presumed to be correct [and the petitioner]
shall have the burden of rebutting the presumption of correctness
by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). A
state court's findings of fact "will not be overturned on factual
grounds unless objectively unreasonable in light of the evidence
presented in the state-court proceeding." Miller-El v.
Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).
II. Right to a Speedy Trial
Petitioner argues that he was denied his constitutional right
to a speedy trial. Respondent concedes that Petitioner exhausted this claim in state court and that he has raised a
federal constitutional claim. (Respondent's Memorandum of Law in
Opposition to Petition ("Resp't's Mem.") at 4.) This Court must
therefore determine whether the Appellate Division's decision,
that Petitioner's speedy trial claim was "without merit,"
Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 305, was "contrary
to, or involved an unreasonable application of, clearly
established Federal law." 28 U.S.C. § 2254(d)(1).
The Supreme Court has set forth a balancing test to guide a
court's determination of whether a defendant was denied his
Sixth Amendment right to a speedy trial. See Barker v. Wingo,
407 U.S. 514, 530, 92 S. Ct. 2182, 2192 (1972). The factors to be
weighed are: " Length of delay,  the reason for the delay,
 the defendant's assertion of his right, and  prejudice to
the defendant." Id.; see also Doggett v. United States,
505 U.S. 647, 651, 112 S. Ct. 2686, 2690 (1992); United States v.
Jones, 129 F.3d 718, 724 (2d Cir. 1997); United States v.
Lainez-Leiva, 129 F.3d 89, 91-92 (2d Cir. 1997). None of these
factors is "either a necessary or sufficient condition to a
finding of a deprivation of the right of speedy trial. Rather,
they are related factors and must be considered together with
such other circumstances as may be relevant." Barker,
407 U.S. at 533, 92 S. Ct. at 2193. A. Length of Delay
In Barker, the Court noted that "[t]he length of the delay is
to some extent a triggering mechanism. Until there is some delay
which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance."
407 U.S. at 530, 92 S. Ct. at 2192. Petitioner was arrested on
September 24, 1993, indicted on October 7, 1993, and pled guilty
on June 11, 1996. The time of the delay is measured from the time
the party is "accused" to the date of the guilty plea. See
United States v. Marion, 404 U.S. 307, 316-17, 92 S. Ct. 455,
462 (1971) (speedy trial "guarantees are applicable only after a
person has been accused of a crime"); see also United States v.
Loud Hawk, 474 U.S. 302, 310, 106 S. Ct. 648, 653 (1986) (either
indictment or "actual restraints imposed by arrest and holding"
required as basis for application of speedy trial claim). Because
"[a] delay of one year is sufficient to trigger judicial review
for a Sixth Amendment violation," United States v. Gutierrez,
891 F. Supp. 97, 100 (E.D.N.Y. 1995) (citing Doggett,
505 U.S. at 657-58, 112 S. Ct. at 2694), the length of delay in
Petitioner's case triggers the Barker inquiry.
While the roughly thirty-four months that Petitioner awaited
trial is presumptively prejudicial, it is far shorter than delays
in other cases where courts have found no Sixth Amendment
violation. See, e.g., Barker, 407 U.S. at 533-34, 92 S. Ct.
at 2193-94 (no violation despite delay of over five years); Rayborn
v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (no violation despite
delay of seven years); United States v. Lane, 561 F.2d 1075,
1078 (2d Cir. 1977) ("The delay here was quite lengthy[,]
approximately 58 months or just under five years[,] but
nevertheless was shorter than that in other cases in which no
Sixth Amendment violation has been found."); United States v.
Saglimbene, 471 F.2d 16, 17 (2d Cir. 1972) (no violation despite
a delay of six years).
B. Reasons for the delay
Next to be considered are the reasons for the delay. Petitioner
argues that most of the delay is attributable to the People.
(See Petition for Writ of Habeas Corpus ("Pet.") at 13.)
Petitioner further argues that because the People did not dispute
this fact in responding to his original § 440.10 motion, but
instead raised only procedural arguments, the People have
conceded these allegations. (See id.) However, this argument
was deemed "without merit" by the appellate court, see
Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 305, a finding
with which this Court concurs. Petitioner's original § 440.10
claim was for ineffective assistance of counsel, not a speedy
trial violation, so the People's decision not to challenge
Petitioner's speedy trial claim on its merits cannot be deemed a concession of its
validity. (See Resp't Br. at 20-21.)*fn2
In fact, Petitioner has offered no proof that the delay was
caused by the People. At best, he argues that at various points
the People failed to declare that they were ready for trial.
(See Pet. at 6.) By contrast, Respondent has provided evidence
that much of the delay was the result of pre-trial motions filed
by Petitioner and his counsel, and the frequent absence from
court of Petitioner or his counsel on various appearance dates,
over a two-year period from January 1994 to February 1996. (See
Weisel Aff. ¶¶ 5-9; Correction Department Report, Weisel Aff. Ex.
8.) Petitioner himself recognizes these delays, which were not
attributable to the People. (See Pet. at 5-7.)
After Petitioner was arraigned on the indictment on November 9,
1993, his attorney filed two pre-trial motions, dated January 21,
1994, and February 25, 1994, respectively. (Weisel Aff. ¶ 5.) The
People responded on February 15, 1994 and March 8, 1994,
respectively. The trial court decided both motions on March 21,
1994. (Id.) Defense Counsel filed a third pre-trial motion on
March 24, 1994, which the People answered on or about April 14,
1994. (Id. ¶ 7.) The trial court ruled on that motion on or about April 26, 1994. (Id.) Petitioner filed a pro se
application for a state writ of habeas corpus on October 10,
1995, which the trial court denied on March 15, 1996. (Id. ¶
8.) Delay caused by motions filed by the defendant or defense
counsel are not attributable to the state in assessing a
constitutional speedy trial claim. See United States v.
Vasguez, 918 F.2d 329, 338 (2d Cir. 1990) (second Barker
factor does not weigh against the People where "most of the 26
months at issue was consumed by consideration of defendants'
various pretrial motions"); Jones v. Spitzer, No. 01 Civ. 9754
(HB) (GWG), 2003 WL 1563780, at *44 (S.D.N.Y. Mar. 26, 2003)
(motions made by defendant do not constitute attempts by the
prosecution to delay the trial); United States v. Cruz,
907 F. Supp. 87, 93 (S.D.N.Y. 1995).
In addition, Petitioner was not present in court on the
following appearance dates: June 27, 1994; September 7, 1994;
March 1, 1995; September 13, 1995; and October 3, 1995. (Weisel
Aff. ¶ 9.) Petitioner's counsel was not in attendance on the
following appearance dates: January 11, 1994; February 1, 1994;
October 25, 1994; December 6, 1994; March 7, 1995; October 24,
1995; November 14, 1995; December 12, 1995; January 23, 1996; and
February 12, 1996. (Id.) Delays resulting from these absences
cannot be attributed to the People. See Jones, 2003 WL
1563780 at *44 (delay caused by appointment of counsel and
reassignment of new judge were not deliberate, thus not the
State's fault); Vazguez v. Bennett, No. 00 Civ. 3070 (AKH), 2002 WL 619282, at
*3 (S.D.N.Y. Apr. 17, 2002) (fourteen month delay caused by
court-appointed counsel who relieved himself from case without
explanation, counted as "neutral" reason for delay); Davis v.
McLaughlin, 122 F. Supp. 2d 437, 443 (S.D.N.Y. 2000) (delays
caused by petitioner's failure to appear, assignment of new
defense counsel, and various adjournments for petitioner's
counsel to appear not attributable to the State).
In any event, if certain delays were attributable to the
People, Petitioner has not offered any evidence to indicate that
the People acted in bad faith. When there is no evidence that the
People delayed the trial in bad faith, or to disadvantage the
defendant, the second Barker factor does not weigh in the
defendant's favor. See Flowers v. Conn. Corr. Inst.,
853 F.2d 131, 134 (2d Cir. 1988); Warwick v. Kuhlmann, No. 98 Civ. 6393
(RCC) (HBP), 2003 WL 22047883, at *3 (S.D.N.Y. Aug. 29, 2003);
Holden v. Miller, No. 00 Civ. 0926 (RMB) (AJP), 2000 WL
1121551, at *11 (S.D.N.Y. Aug. 8, 2000) ("[S]ince nothing in the
record indicates a deliberate attempt by the State to delay the
trial in order to hamper [petitioner's] defense, this factor does
not weigh in [petitioner's] favor.").*fn3 C. Invocation of Right to Speedy Trial
The third factor of the Barker test looks to whether and when
a defendant invoked his speedy trial right. The defendant has a
"responsibility to assert his right . . . [and the] failure to
assert the right will make it difficult for a defendant to prove
that he was denied a speedy trial." Barker 407 U.S. at 531-32,
92 S. Ct. at 2192-93. That Petitioner did not raise his speedy
trial claim until after pleading guilty weighs against him. See
Doggett, 505 U.S. at 653-54, 112 S. Ct. at 2691 (third factor
of Barker test would weigh against defendant who waited until
he was arrested, eight-and-one-half years after he was indicted,
if he knew of the outstanding indictment); Howard v. Lacy,
58 F. Supp. 2d 157, 168 (S.D.N.Y. 1999) ("Raising the claim on the
eve of the trial cuts against the petitioner."). Although
Petitioner has asserted that he submitted several pro se
speedy trial motions to his counsel before his plea proceeding,
the first on January 3, 1996, his counsel refused to submit the
motions to the trial court. (See Petitioner's § 440.10 Motion ¶
13, Weisel Aff. Ex. 12.) Since these motions were not submitted
to the court, the court was not alerted to any speedy trial concerns. In any event, even if the unfiled motions were
relevant, Petitioner still did not invoke his speedy trial right
until twenty-six months after he was indicted. On this record,
the third Barker factor also weighs against Petitioner. See,
e.g., Vasguez, 918 F.2d at 338 (third factor "weighs heavily"
against petitioners who "waited roughly 22 months before
advancing their speedy trial claim"); Pjetrovic v. Bennett, No.
00 Civ. 0398, (VM) (RLE), 2002 WL 32780, at *6 (S.D.N.Y. Jan. 3,
2002) (ten month delay weighs against petitioner); Howard,
58 F. Supp. 2d at 168 (raising the claim after seventeen months of a
nineteen-month delay "cuts against the Petitioner").
The final prong of the Barker test is whether prejudice
resulted from the delay. The Supreme Court has explained that the
test for determining prejudice should be assessed based on three
(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense
will be impaired. Of these, the most serious is the
last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay,
the prejudice is obvious. There is also prejudice if
defense witnesses are unable to recall accurately
events of the distant past.
Barker, 407 U.S. at 532, 92 S. Ct. at 2193. The Court has
recognized that affirmative proof of prejudice is often unavailable, and therefore "consideration of prejudice is not
limited to the specifically demonstrable, and . . . affirmative
proof of particular prejudice is not essential to every speedy
trial claim." Doggett, 505 U.S. at 655, 112 S. Ct. at 2692.
Nevertheless, "presumptive prejudice alone cannot carry a
Sixth Amendment claim . . . [but] is part of the mix of relevant facts"
that goes into the Barker test. Id. at 656,
112 S. Ct. at 2693; see also United States v. Solomon, No. 95 CR. 154
(LAP), 1996 WL 399814, at *5 (S.D.N.Y. July 16, 1996).
Petitioner argues that the delay caused him to lose two
witnesses who would have testified on his behalf, thus greatly
impairing his ability to defend himself. (Pet. at 13.) Petitioner
contends that one witness could not be located, and the other had
forgotten much of what had transpired at the time of the crime.
(Def.-Appellant Br. at 8-9.)
However, Petitioner has offered no specific evidence
demonstrating how the witnesses' testimony would have supported
his defense. Only in his Reply to the Respondent's Answer, did
Petitioner, for the first time, make any claim about the
substance of the alleged testimony these witnesses would have
provided. Petitioner states that the witnesses would have
testified to the fact that he was not with the victim at the
times and dates alleged by the People. (See Pet'r's Reply at
1-2.) This claim is unsupported and unconvincing, particularly since it was not made in the state courts or at any stage of this
proceeding until Petitioner's Reply. Moreover, it has not been
supported by any particularized evidence. See United States v.
Infanti, 474 F.2d 522, 528 (2d Cir. 1973) (no prejudice where
"key witness for defense" died before trial when witness's
alleged exculpatory knowledge is brought up for the first time in
the brief for appeal, and not accompanied by substantiating
evidence on the record); Solomon, 1996 WL 399814, at *5 (no
prejudice based on "vague assertions" that do not "identify the
witnesses whose memories have dimmed or what the nature of their
testimony would have been"). Finally, the suggestion that
unidentified witnesses would have provided an alibi for
Petitioner flies in the face of his plea allocution, where he
stated under oath that he stabbed the complainant in her
apartment and accepted full responsibility for his acts. See
Diaz v. Mantello, 115 F. Supp. 2d 411, 421 (S.D.N.Y. 2000)
("Petitioner's present contentions are inconsistent with the
sworn statements he made at his plea allocution and are of little
relevance to any constitutional habeas claim."). Moreover, as the
complainant testified at the sentencing hearing, she knew
Petitioner and thus there could be no question of
* * * Taking into account all of the Barker factors, Petitioner has
not demonstrated that his Sixth Amendment right to a speedy trial
has been violated. Petitioner has not provided evidence of
specific prejudice resulting from the delay; he has not shown
that the People deliberately or negligently delayed the case at
his expense; and he only invoked his speedy trial right after a
twenty-six month delay, indicating a lack of true interest in
receiving a speedy trial. Most significantly, Petitioner has not
demonstrated that any significant delay was the result of the
People's conduct. Thus, Petitioner has not shown that the
Appellate Division's finding that his speedy trial claim was
"without merit" was contrary to, or an unreasonable application
of, Supreme Court law.
Accordingly, this Court respectfully recommends that
Petitioner's speedy trial claim be dismissed.
III. Right to Be Indicted by a Grand Jury
Petitioner contends that his conviction was obtained in
violation of his constitutional right to be indicted by a grand
jury, when the trial court allowed the People to amend a
jurisdictionally defective indictment. (See Pet. at 19.)
Respondent argues that Petitioner's claim does not present a
federal constitutional question and, therefore, does not entitle
him to habeas relief. (See Resp't Mem. at 11.) A. Indictment by Grand Jury Not a Federal Issue
The Fifth Amendment right to be tried for a felony only upon a
grand jury indictment was not incorporated by the Due Process
Clause of the Fourteenth Amendment, and therefore does not
pertain to the states. See Hurtado v. California,
110 U.S. 516, 4 S. Ct. 111 (1884); LanFranco v. Murray, 313 F.3d 112,
118 (2d Cir. 2002); Fields v. Soloff, 920 F.2d 1114, 1118 (2d
Cir. 1990). Thus, Petitioner's right to be tried on a felony only
upon indictment by a grand jury is derived solely from the New
York State Constitution. See N.Y. Const., art. I, § 6.
Petitioner's specific claim that his right to be indicted by a
grand jury was violated therefore presents no federal question,
and hence is unreviewable by this Court. See 28 U.S.C. 2254(a)
(federal habeas review is available "in behalf of a person in
custody pursuant to the judgment of a State court only on the
ground that he is in custody in violation of the Constitution or
laws or treaties of the United States"); Estelle v. McGuire,
502 U.S. 62, 67-68, 112 S. Ct. 475, 480 (1991) ("[I]t is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions.").
B. Due Process Claim Unexhausted and Procedurally Barred
Petitioner's pro se Petition must be construed liberally to
include its strongest arguments. See Weixel v. Bd. of Educ.,
287 F.3d 138, 145-46 (2d Cir. 2002); Cruz v. Gomez,
202 F.3d 593, 597 (2d Cir. 2000). Accordingly, it is possible to read the Petition
as asserting that Petitioner's grand jury indictment failed to
satisfy basic due process requirements. In general, challenges to
the sufficiency of a state indictment are not cognizable on
habeas review. See United States ex rel. Mintzer v. Dros,
403 F.2d 42, 43 (2d Cir. 1967); Munoz v. Keane, 777 F. Supp. 282,
289 n. 15 (S.D.N.Y. 1991); United States ex rel. Maisonet v. La
Vallee, 405 F. Supp. 925, 927-28 (S.D.N.Y. 1975). Challenges to
state indictments are only cognizable on habeas review if the
indictment falls below basic due process requirements. Due
process requires that an indictment inform the defendant "in
general terms, of the time, place, and essential elements of the
crime." Carroll v. Hoke, 695 F. Supp. 1435, 1438 (E.D.N.Y.
1988), aff'd, 880 F.2d 1318 (2d Cir. 1989); see also Medina
v. Herbert, No. 98 Civ. 1871 (RWS), 1998 WL 799173, at *5
(S.D.N.Y. Nov. 16, 1998) (indictment sufficient if it provides
time, place and essential elements of crime, so that petitioner
can plead double jeopardy in future prosecution on same set of
Respondent contends that any due process claim is not exhausted
because Petitioner failed to apprise the state courts of any
claimed federal constitutional violation, and hence the claim is
procedurally barred from review by this Court. (See Resp't Mem.
at 12.) It is well settled that all state remedies must be
exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. See
28 U.S.C. § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275-76,
92 S. Ct. 509, 512-13 (1971); Jones v. Vacco, 126 F.3d 408, 413 (2d
Cir. 1997). "At the core of the exhaustion doctrine . . . is the
`respect for our dual judicial system and concern for harmonious
relations between the two adjudicatory institutions.'" Jones,
126 F.3d at 413 (quoting Daye v. Attorney Gen. of NY,
696 F.2d 186, 191 (2d Cir. 1982) (en banc)). Thus, a petitioner must
"`fairly presen[t]' federal claims to the state courts in order
to give the State the opportunity to pass upon and correct
alleged violations of its prisoners' federal rights." Duncan v.
Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 888 (1995) (per
curiam); see also Jones, 126 F.3d at 413; Daye,
696 F.2d at 191. "This means, in essence, that in state court the nature
or presentation of the claim must have been likely to alert the
court to the claim's federal nature." Cox v. Miller,
296 F.3d 89, 99 (2d Cir. 2002) (quoting Daye, 696 F.2d at 191).
The presentation requirement is somewhat flexible. "Adherence
to exhaustion principles does not require a petitioner to raise
his claims by citing chapter and verse of hornbook
[constitutional] law." Abdurrahman v. Henderson, 897 F.2d 71,
73 (2d Cir. 1990) (internal citations omitted); see also
Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir.
1995). A petitioner may fairly present a federal claim in one of four
(a) reliance on pertinent federal cases employing
constitutional analysis, (b) reliance on state cases
employing constitutional analysis in like fact
situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, and (d) allegation of
a pattern of facts that is well within the mainstream
of constitutional litigation.
Strogov v. Attorney Gen., 191 F.3d 188
, 191 (2d Cir. 1999)
(quoting Daye, 696 F.2d at 194).
In arguing on direct appeal that the trial court improperly
permitted the People to amend the indictment where it charged a
future crime, Petitioner did not make even passing reference to
the United States Constitution or use the term "due process."
(See Def.-Appellant Br. at 5-7.) He argued that the amendment
was a change of substance, not form, and thus the trial court
lacked the power to permit the amendment as it violated his right
to be indicted by a grand jury. (See id. at 5.) Petitioner
cited exclusively state materials to support his claim: the New
York State Constitution, New York cases and statutes, and the
common law (as described by a New York state case). (See id.
Indeed, there is nothing in the appellate brief which might
have alerted the state courts to a possible federal
constitutional issue. Accordingly, Petitioner failed to "fairly
present" a federal constitutional claim to the state courts for review. See Robertson v. Artuz, No. 97 Civ. 2561 (DC), 2000
WL 10265, at *3 (claim not fairly presented where petitioner
relied solely on New York law and did not make any reference to
the Constitution, federal case law, or state case law analyzing
the issues in constitutional terms); McCoy v. Walker, No. 99
Civ. 3926 (RWS), 1999 WL 1191988, at *8 (S.D.N.Y. Dec. 14, 1999)
(petitioner's constitutional claim not exhausted where claim
rested solely on New York law of evidence and no reference was
made to the United States Constitution, nor did petitioner cite
any federal case or assert the claim in terms to call to mind a
constitutional right.); Lugo v. Kuhlmann, 68 F Supp. 2d 347,
361 (S.D.N.Y. 1999) (claim that trial court improperly admitted
testimony was not fairly presented to state courts as a
constitutional claim where petitioner's argument in state court
was based solely on state case law and no reference was made to
any provision of the Constitution); Marchese v. Senkowski, No.
97 Civ. 2055 (JG), 1999 WL 731011, at *6 (E.D.N.Y. Sept. 15,
1999) (petitioner failed to fairly apprise state court of federal
constitutional claims where he relied primarily on state law and
the state court's decision rested solely on principles of state
Petitioner therefore failed to exhaust any due process claim at
the state level. If a petitioner no longer has an available state
forum to pursue a state remedy because of a procedural bar, however, his claim may be deemed exhausted, yet forfeited. See
Teague v. Lane, 489 U.S. 288, 297-99, 109 S. Ct. 1060, 1068-69
(1989); Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Since
the amendment of the indictment is record-based, any claim
relating to the amendment must be raised on direct appeal. See
N.Y. Crim. Proc. Law § 440.10(2)(b). Petitioner is entitled to
only one direct appeal, see N.Y. Court Rules § 500.10(a), which
he has already utilized. See, e.g., Gil v. Mazzuca, No. 03
Civ. 3316 (WHP) (GWG), 2004 WL 389103, at *10 (S.D.N.Y. Mar. 3,
2004). Therefore, Petitioner is barred from seeking state court
review of the claim, rendering the claim procedurally barred.
Accordingly, federal habeas review of Petitioner's due process
claim is prohibited unless he can demonstrate cause for his
failure to properly raise the constitutional claim at the state
level, and prejudice resulting therefrom, or that a fundamental
miscarriage of justice would occur from the failure to entertain
the claim. See Coleman v. Thompson, 501 U.S. 722, 750,
111 S. Ct. 2546, 2565 (1991); Dixon v. Miller, 293 F.3d 74, 80-81 (2d
Cir. 2002); Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997).
"[T]he cause standard requires the petitioner to show that
`some objective factor external to the defense impeded counsel's
efforts' to raise the claim in state court." McCleskey v. Zant,
499 U.S. 467, 493, 111 S. Ct. 1454, 1470 (1991) (quoting Murray
v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986));
see also Bloomer v. United States, 162 F.3d 187, 191 (2d
Cir. 1998). Petitioner has made no effort to establish cause for
the procedural default and none is apparent from the record.
There is therefore no need to reach the issue of prejudice,
because where a "petitioner has failed to establish `cause,' in
other words why he did not raise these claims at the appropriate
time and in the appropriate forum, it is unnecessary to make an
inquiry into the question of `prejudice'." Bentley v. Scully,
851 F. Supp. 586, 604 (S.D.N.Y. 1994), vacated on other
grounds, 41 F.3d 818 (2d Cir. 1994), cert. denied,
516 U.S. 1152, 116 S. Ct. 1029 (1996); see also Engle v. Isaac,
456 U.S. 107, 134 n. 43, 102 S. Ct. 1558, 1575 n. 43 (1982); Tor v.
Duncan, No. 01 Civ. 3984 (DLC), 2003 WL 22479250, at *4
(S.D.N.Y. Nov. 4, 2003); Glisson v. Mantello,
287 F. Supp. 2d 414, 421 (S.D.N.Y. 2003).
A fundamental miscarriage of justice has been construed to mean
that in an extraordinary case, "a constitutional violation has
probably resulted in the conviction of one who is actually
innocent." Murray, 477 U.S. at 496, 106 S. Ct. at 2649; see
also Dixon, 293 F.3d at 81; Lebron v. Mann, 40 F.3d 561, 564
(2d Cir. 1994). Here, Petitioner has not even demonstrated a
constitutional violation; moreover, he has not come close to
demonstrating that he was innocent of the charges. Indeed, in his
plea allocution he acknowledged his guilt and admitted the facts which established his guilt. Accordingly, Petitioner's
indictment claim should be dismissed as procedurally defaulted.
In any event, Petitioner's claim is meritless. Petitioner
alleges that the original indictment was defective in that it
charged him with crimes that occurred after the indictment was
filed. (See Pet. at 20.) As discussed, challenges to the
sufficiency of a state indictment are not cognizable on habeas
review unless the indictment falls below basic due process
requirements. See Medina, 1998 WL 799173, at *5 (citing
Dros, 403 F.2d at 43); Carroll, 695 F. Supp. at 1438-39. An
indictment is constitutionally sufficient if "it charges a crime
(1) with sufficient precision to inform the defendant of the
charges he must meet and (2) with enough detail that he may plead
double jeopardy in a future prosecution based on the same set of
events." DeVonish v. Keane, 19 F.3d 107, 108 (2d Cir. 1994);
see also Beverly v. Walker, 899 F. Supp. 900, 909 (N.D.N.Y.
The indictment in Petitioner's case satisfies these
constitutional requirements. Each count of the indictment
indicated the crimes charged and their essential elements and, in
general terms, the time (between September 10, 1993 and November
30, 1993), and place (Bronx County) of the crimes. (See
Indictment.) Although the dates specified in the original
indictment were incorrect insofar as they included future dates
when the crimes could not possibly have been committed, the original indictment was amended by the People to specify more
accurate time periods for each of the counts of the indictment.
(See Motion to Amend Indictment, Weisel Aff. Ex. 3; Order
Granting Amendment, dated Mar. 21, 1994, Weisel Aff. Ex. 4.) As
the Appellate Division found, the amended indictment, "in which
the same conduct, the same persons, the same charges, and, as
refined, the same time period, are manifested in the original
indictment," gave the Petitioner "fair notice in the indictment
of the charges against him." Parrilla, 285 A.D.2d at 162,
730 N.Y.S.2d at 304-05. The amendment merely "pared off" some dates
and "did not change the theory of the prosecution." See id.
at 162, 730 N.Y.S.2d at 304. Thus, the indictment did not fall
below due process standards.*fn4
Because Petitioner's grand jury/indictment claim is
procedurally defaulted and meritless, this Court recommends that
the claim be dismissed.
IV. Ineffective Assistance of Counsel
Lastly, Petitioner argues that he was denied effective
assistance of counsel when his original and subsequently assigned
attorney (1) failed to pursue his speedy trial claim; and (2) failed to object to the People's motion to amend the
indictment.*fn5 Respondent concedes that Petitioner
exhausted these claims in state court and that he has raised a
federal constitutional claim. (See Resp't Mem. at 15.)
It is well settled that the standard set forth in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
constitutes the relevant "clearly established Federal law, as
determined by the Supreme Court of the United States" for
ineffective assistance of counsel claims. See Aparicio v.
Artuz, 269 F.3d, 78, 95 & n. 8 (2d Cir. 2001); Sellan v.
Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). Strickland sets
forth a two-part test for evaluating claims of ineffective
assistance of counsel. See Strickland, 466 U.S. at 687,
104 S. Ct. at 2064; Aparicio, 269 F.3d at 95. First, the defendant
must establish that his attorney's performance was so deficient
that it "fell below an objective standard of reasonableness."
Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. In applying
this first prong of the Strickland test, the Court "must
indulge a strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy." Id. at 689,
104 S. Ct. at 2065 (citation and internal quotation marks omitted).
To satisfy the second part of the Strickland test, 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, 104 S. Ct. at 2068; see also Flores v. Demskie,
215 F.3d 293, 300 (2d Cir. 2000). "A reasonable probability is one
sufficient to undermine confidence in the outcome of the trial or
appeal." Aparicio, 269 F.3d at 95 (citing Strickland,
466 U.S. at 694, 104 S. Ct. at 2052). "Failure to make the required
showing of either deficient performance or sufficient prejudice
defeats the ineffectiveness claim." Strickland,
466 U.S. at 700, 104 S. Ct. 2071.
Since there was no trial in the instant case, the Strickland
test must be applied to Petitioner's guilty plea, where he must
show 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." See Hill v. Lockhart,
474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985); United States v. Torres, 129 F.3d 710, 716 (2d Cir. 1997); James v. Greiner, No. 97 Civ. 2652
(DLC), 1999 WL 619636, at *4 (S.D.N.Y. Aug. 16, 1999).
Defense counsels' decisions not to file a speedy trial motion
or to oppose the People's amendment of the indictment were not
objectively unreasonable, since both motions would have been
meritless. Indeed, Petitioner eventually pursued these two claims
by filing pro se motions, which were denied, and, on appe
to the Appellate Division, the court found Petitioner's speedy
trial claim to be "without merit," and likewise denied his
challenge to the People's amendment of the indictment. See
Parrilla, 285 A.D.2d at 162, 730 N.Y.S.2d at 305. There is no
constitutional right to have counsel file meritless motions on a
criminal defendant's behalf. See United States v. Arena,
180 F.3d 380, 396 (2d Cir. 1999) ("Failure to make a meritless
argument does not amount to ineffective assistance."); Jones
2003 WL 1563780, at *18 ("Obviously, the failure to make a
meritless section 30.30 motion does not amount to ineffective
Moreover, Petitioner has failed to show how any prejudice
resulted from his attorneys' failure to advance these claims.
Based on evidence in the record, including the testimony of the
victim at Petitioner's sentencing hearing and Petitioner's own
admission of guilt, it appears that defense counsel secured a
very favorable plea agreement for Petitioner. At Petitioner's plea proceeding, the prosecutor stated that she would have proved
beyond a reasonable doubt that Petitioner stabbed Keila C. in the
chest with a knife. (See Resp't Br. at 3.) Petitioner agreed
with the court's statement that he attempted to cause the death
of Keila C. by stabbing her multiple times in the chest and upper
body. (See id. at 4.) Moreover, the victim testified to
Petitioner's raping her as well. The victim knew Petitioner, she
sustained serious injuries, and, as evidenced at the sentencing
proceeding, she presented a graphic description of Petitioner's
behavior. Had the case proceeded to trial, Petitioner faced a
high risk of being convicted of the multiple crimes charged in
As a second violent felony offender,*fn6 Petitioner faced
potential concurrent sentences on the nine count indictment, for
Attempted Murder in the Second Degree and Forcible Rape,
totalling twenty-five to forty years in prison. Petitioner's
counsel managed to secure from the court an offer of a sentence
of seven-and-one-half to fifteen years if Petitioner pled guilty
to one of the counts. The People actually urged a more severe
sentence. (See id. at 4.)
Since the speedy trial and defective indictment claims were
meritless, and by pleading guilty Petitioner secured a highly favorable sentence, there is no reasonable probability that, but
for counsel's failing to file the meritless motions, Petitioner
would not have pled guilty. Accordingly, Petitioner cannot
satisfy the prejudice prong of Strickland. See Washington v.
Ross, No. A95-CV-2213 (DGT), 1996 WL 172983, at *4 (E.D.N.Y.
Apr. 8, 1996) (where petitioner's self-defense strategy would
have been a "high risk proposition" at trial, and it was "most
unlikely" that petitioner, who pleaded guilty to Murder in the
Second Degree, would have fared better than his sentence of five
years to life had he gone to trial, petitioner failed to
demonstrate that he was prejudiced by his counsel's alleged
failure to investigate his self-defense claim); see also
Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir. 1984) (defense
counsel's failure to advise petitioner of affirmative "play
pistol" defense to first degree robbery charge did not result in
prejudice to petitioner where there was "exceedingly little
likelihood" that the defense would have succeeded at trial, and a
greater likelihood that it would have exposed petitioner to
greater punishment than he received by pleading guilty); United
States v. Jackson, No. 89 Cr. 067 (SWK), 1990 WL 88886, at *4
(S.D.N.Y. June 20, 1990) (defense counsel's alleged failure to
interview certain witnesses prior to defendant's pleading guilty
did not result in prejudice to defendant: "In light of the
substantial evidence that the government had against [defendant],
. . . it is highly unlikely that [counsel] would have changed his assessment
of the case or that any conceivable testimony by these four
prospective witnesses would have resulted in a different outcome
Because Petitioner has not demonstrated either deficient
representation or prejudice, Petitioner's ineffective assistance
of counsel claim should be dismissed.
For the reasons set forth above, this Court respectfully
recommends that Petitioner's claims and the Petition be dismissed
with prejudice. As the Petition presents no question of substance
for appellate review, this Court recommends that no certificate
of appealability be issued. See 28 U.S.C. § 2253(c)(2);
Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112
(2d Cir.), cert. denied, 531 U.S. 873, 121 S. Ct. 175 (2000).
This Court further recommends that the Court certify pursuant to
28 U.S.C. § 1915(a)(3) that any appeal from its order would not
be taken in good faith. See Coppedge v. United States,
369 U.S. 438, 82 S. Ct. 917 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this report to file written objections. See
also Fed.R.Civ.P. 6(a) and (e). Such objections shall be
filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable William H. Pauley III,
United States District Judge, and to the chambers of the undersigned,
Room 1660. Any requests for an extension of time for filing
objections must be directed to Judge Pauley. Failure to file
objections will result in a waiver of those objections for
purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466
(1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of
Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).