United States District Court, S.D. New York
August 8, 2005.
THOMAS BUTTI, Petitioner,
GLENN S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
On August 28, 2003, petitioner Thomas Butti ("Butti") filed
this timely petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, to vacate his 1999 conviction for various crimes
related to insurance fraud. The petitioner asserts violations of
(1) his right to a speedy trial and (2) his due process
protections resulting from pretrial delay and the prosecution's
reliance on a pretrial waiver of his state speedy trial right.
The petition was referred to Magistrate Judge James C. Francis for a Report and Recommendation ("Report"). The Report, to which
Butti objects, recommends that the petition be denied. For the
following reasons, the Report is adopted and the petition is
The relevant facts are set forth in the Report and summarized
here. Butti has been convicted three times for crimes relating to
insurance fraud. On August 18, 1994, Butti pled guilty to charges
relating to insurance fraud and entered into a Memorandum of
Understanding ("Cooperation Agreement") with the prosecution.
When Butti violated the terms of the Cooperation Agreement he was
sentenced on the basis of his guilty plea.
On November 24, 1996, Butti was arrested on new charges of
insurance fraud, relating to events occurring around the same
time as those covered by his first conviction. On December 11,
1996, Butti entered into a Superior Court Information Conference
Waiver ("SCI Agreement") with the District Attorney and agreed to
waive his New York state right to a speedy trial during plea
negotiations. On November 10, 1997, Butti rejected the offered
plea agreement, voiding the SCI Agreement.
Consequently, on March 12, 1998, Butti was indicted on ten
counts related to insurance fraud. Judge Angiolillo denied
Butti's pretrial motion to dismiss the charges against him for
violation of his right to a speedy trial and due process. Butti's
omnibus motion, which again included his speedy trial claim, was denied on September 25, 1998, and his motion to
reargue his omnibus motion was denied on December 14, 1998. Trial
was set for January 11, 1999. On the trial date, Butti pled
guilty to all ten counts in the indictment. This was Butti's
second conviction for crimes related to insurance fraud.*fn1
During his plea allocution he reserved his right to appeal and
withdrew a renewed motion to reargue his omnibus motion. Butti
was sentenced on the basis of his plea.
On appeal, Butti argued that the pre-indictment delay violated
his Sixth Amendment speedy trial and Fourteenth Amendment due
process rights. Butti argued that the prosecution's reliance on
the Cooperation Agreement waivers in excusing pretrial delay
violated due process as well.*fn2 On May 28, 2002, the
Appellate Division, Second Department affirmed Butti's conviction
but vacated a restitution order, holding that "[u]pon our review
of the facts set forth in People v. Taranovich, 335 N.E.2d 303
(N.Y. 1975), we conclude that the defendant's right to a speedy
trial was not violated," and that "[t]he defendant's remaining
contentions were waived upon his plea of guilty to the entire indictment." People v. Butti,
742 N.Y.S.2d 570, 571 (2d Dep't 2002). On September 18, 2002, the New
York Court of Appeals denied leave to appeal. People v. Butti,
779 N.E.2d 190 (N.Y. 2002).
The court "may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge."
28 U.S.C. § 636(b)(1)(C). The court shall make a de novo
determination of the portions of the report to which petitioner
objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir. 1997). "A district court may adopt those portions of the
Report to which no objections have been made and which are not
facially erroneous." Wilds v. United Parcel Serv., Inc.,
262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (citation omitted).
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub.L. No. 104-132, requires that a habeas corpus
petition based on claims that were adjudicated on the merits in
state court must be denied unless the state court's adjudication
(1) 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; or
(2) resulted in a decision based on an unreasonable
determination of the facts in light of the evidence
presented in the state court proceeding.
28 U.S.C. § 2254(d) (emphasis supplied). AEDPA further mandates
that a state court's determination of a factual issue shall be
presumed correct and may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Forfeiture of Due Process Claim
Butti claims that the pre-trial delay, including any reliance
on his Cooperation Agreement as a waiver of his speedy trial
right, violated his constitutional due process guarantee. The
Report found Butti's due process claims were procedurally barred
from review, because they had been denied on independent and
adequate state law grounds in the Appellate Division's
proceedings. Butti fails to raise a substantive objection to the
Report's analysis. Instead he argues that his reliance on the
trial court's representations during his plea allocution
regarding his right to appeal preserved his due process claims
for habeas review. Butti cites Lee v. Kemna, 534 U.S. 362
(2002), in support of this argument.
The Appellate Division, citing People v. O'Brien,
439 N.E.2d 354 (N.Y. 1982), and People v. Gerber, 589 N.Y.S.2d 171 (2d
Dep't 1992), denied Butti's due process claims on state law
waiver grounds. Moreover, Butti's citation of Lee is
inapposite, as Lee addressed the preservation of habeas claims
raised by a defendant who had proceeded to trial, not one who
entered a guilty plea. Therefore, the Report correctly found that
the independent and adequate state law finding precludes habeas
review of Butti's due process claims.*fn3 Sixth Amendment Claim
The Report concludes that Butti's speedy trial argument is
preserved for review, is not waivable, and was rejected by the
Appellate Division on the merits. See Lefkowitz v. Newsome,
420 U.S. 283, 293 (1975); People v. Hansen, 738 N.E.2d 773,
776-77 (N.Y. 2000). In his petition, Butti claims that the
pre-trial delay violated his Sixth Amendment right to a speedy
The Report recommends denying the Sixth Amendment claim based
on a detailed analysis of the factors enunciated in Barker v.
Wingo, 407 U.S. 514 (1972). To determine whether a defendant's
Sixth Amendment right to a speedy trial has been violated, courts
examine four factors: (1) the length of the delay; (2) the reason
for the delay; (3) the timing and frequency of the defendant's
assertion of his speedy trial right; and (4) any prejudice to the
defendant caused by the delay. Id. at 530. Butti objects to the
Report's findings with respect to the first, second and fourth
factors. An objection which is "devoid of any reference to
specific findings or recommendations" and is "unsupported by
legal authority" does not preserve the claim. Mario v. P & C Foods, Inc., 313 F.3d 758, 766 (2d Cir. 2002).
While Butti's substantive objection to the Report's analysis of
the first factor merits a de novo review by this court, his
bare statements of disagreement with the Report's findings as to
the second and fourth factors are insufficient to preserve those
issues for de novo review.
The first factor, length of the delay, is a threshold
consideration. Barker, 407 U.S. at 530. As the post-accusation
delay approaches one year, the Barker inquiry is triggered and
the extent of the delay must be weighed against the other three
Barker factors. Doggett v. United States, 505 U.S. 647,
651-2, 652 n. 1 (1992). The Report found the 25-month delay
between Butti's arrest and trial date presumptively prejudicial,
thereby triggering an evaluation of the remaining three factors.
Butti objects to the Report's reasoning that because his delay
was shorter than those in cases in which no violation was found,
this factor does not weigh in his favor. No single factor is
"either a necessary or sufficient condition to the finding of a
deprivation of the right of speedy trial. . . . [C]ourts must
still engage in a difficult and sensitive balancing process."
Barker, 407 U.S. at 533. The length of the pre-trial delay,
therefore, must be considered in relation to the remaining three
factors and in the context of the circumstances surrounding the
delay. Id. at 533-34.
The Report's analysis of the reason for delay, the timing and
frequency of Butti's assertion of his speedy trial right, and any prejudice caused by the delay are not facially erroneous.
First, the Report correctly concluded that through his plea
negotiations and pre-trial motions, Butti was primarily
responsible for the pretrial delay. The Report also correctly
found that although Butti frequently asserted his speedy trial
right, he has shown no prejudice due to the delay. Butti's
conjecture that "witnesses no doubt relocated and become [sic]
unavailable" and that "[t]here are, perhaps, many other
collateral consequences that have yet to surface as a result of
the delay" is not sufficient evidence of prejudice.*fn4
Considering the circumstances of the pretrial delay and the
absence of any resulting prejudice, Butti has not shown an
unreasonable delay in violation of his Sixth Amendment right to a
The Report is adopted and the petition for a writ of habeas
corpus is denied. In addition, I decline to issue a certificate
of appealability. The petitioner has not made a substantial
showing of a denial of a federal right, and appellate review is
therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to Title 28, United
States Code, Section 1915(a)(3), that any appeal from this order
would not be taken in good faith. Coppedge v. United States,
369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this