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.