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June 20, 2005.

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.


  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 right.

  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. 13.)

  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., passim.)

  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 (2002).

  The instant Petition followed.


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