The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.
REPORT AND RECOMMENDATION TO THE HONORABLE SHIRA A. SCHEINDLIN
Petitioner Wadell Smith ("Smith") brings this pro se habeas proceeding, pursuant to Title 28, United States Code, Section 2254, to challenge his conviction, after a jury trial in Supreme Court, Bronx County, on four counts of Robbery in the First Degree, and one count each of Criminal Possession of a Weapon in the Second and Third Degrees. On September 25, 2000, Justice Bonnie Wittner, before whom the case was tried, sentenced Smith, as a persistent violent felony offender, to concurrent indeterminate prison terms which, in the aggregate, amount to a sentence of twenty-two years to life. (See Pet. ¶¶ 3-5). In his petition, Smith raises a series of claims arising out of the two-year delay between his arrest and trial. For the reasons set forth below, I recommend that the petition be denied. Additionally, pursuant to 28 U.S.C. § 2253(c)(2), Smith should be denied a certificate of appealability because he has failed to make a substantial showing of the denial of a constitutional right.
In view of the narrow issues raised in Smith's petition, the facts underlying his conviction are of only marginal relevance. For this reason, the failure of either side to furnish the Court with a copy of the trial transcript does not present a problem. I therefore have relied on the state court briefs for the following factual recitation. A review of those briefs indicates that a reasonable juror could have found as follows:
On July 31, 1998, Carlington Laing ("Laing") was selling marijuana in the vicinity of 429 Lenox Avenue in Harlem. (See Decl. of Ass't Att'y Gen. Danielle L. Attias, dated Dec. 30, 2004 ("Attias Decl."), Ex. A (Def.'s Br. on Appeal ("Def.'s Br.")*fn1 at 8 (citing Tr. 116, 186-87)). At approximately 7 p.m., Smith, his co-defendant Garney Hayes ("Hayes"), and a man on crutches who was a prior customer, approached Laing, who directed them into the building. (Id. at 9 (citing Tr. 120, 123)). Once the men were inside, Smith grabbed Laing and pushed him back. (Id. (citing Tr. 123-24)). Hayes then hit Laing in the back of the neck and threw him to the floor. (Id.). Thereafter, Smith pulled out a revolver, placed it against Laing's head, and took approximately $100 from Laing's pockets. (Id. (citing Tr. 125-26)).
Smith and Hayes next asked Laing about the location of his "stash" and threatened to kill him if it was not disclosed. (Id. (citing Tr. 125-28)). With Hayes' knife at his neck, Laing led the men to the back of the building where his drugs were kept. (Id. (citing Tr. 126, 129)). One of the men took the drugs and put them in a knapsack. (Id. (citing Tr. 131)).
As Laing's assailants were leaving the building, they encountered Vincent Laing ("Vincent") (no relation to Carlington Laing) who was entering the building with his son. (Id. (citing Tr. 132)). Smith pointed the gun at Vincent, and took his jewelry and $600 in cash. (Id. at 10 (citing Tr. 138, 373, 378, 386, 407)).
Smith and Hayes then left the building. (Id. (citing Tr. 136, 379-80)). Laing also walked outside and around the corner, at which point he saw them place their bag of looted materials in the back of a parked van. (Id. at 10-11 (citing Tr. 138, 140)). When a friend playing basketball nearby asked what had happened, Laing reported that he had been robbed. (Id. at 11 (citing Tr. 138-39, 144)). The friend, in turn, reported the incident to Detective Byron Chavers ("Chavers"), who was in the area. (Id. (citing Tr. 139, 532, 538-39)). Chavers chased Hayes and Smith on foot. (Id. (citing Tr. 550, 553-54)). He saw the two men stop at the van, then caught and handcuffed Smith, and radioed a description of Hayes to other police officers. (Id. (citing Tr. 553-54, 560-64)). Detective Salvador Toro heard the transmission and successfully apprehended Hayes. (Id. at 11-12 (citing Tr. 754-55, 767)).
In the meantime, Laing had approached the van, which drove off with Laing in pursuit. (Id. at 12 (citing Tr. 144-45, 559-60)). Several blocks away, the driver stopped the van and fled on foot. (Id. (citing Tr. 145)). After he noticed a gun on the driver's side of the van, Laing called "911." (Id. at 12 (citing Tr. 144-45, 147)). A little while later, Chavers recovered from the van a revolver and a knapsack containing marijuana, a hunting knife, some jewelry, and $608 in cash. (Id. (citing Tr. 578, 580-81, 594, 608)).
Following their arrest on July 31, Smith and Hayes were arraigned on a felony complaint on August 2, and indicted on August 12, 1998. (Smith Suppl. Br. at 17). In May 1999, Hayes' attorney moved for the release of his client pursuant to the speedy trial requirements of Section 30.30 of the New York Criminal Procedure Law ("CPL"). (Id. at 5). Thereafter, Hayes was released on his own recognizance following the District Attorney's admission that more than ninety days of time chargeable to the People had elapsed. (See id. at 5, 17; Attias Decl. Ex. C (Resp't's Br. on Appeal ("Resp't's Br.")) at 42). Smith's defense counsel neither joined in his co-counsel's motion, nor adopted Smith's pro se motion seeking relief under CPL § 30.30. (Smith Suppl. Br. at 21). For these reasons, the court eventually granted Smith's application for a new attorney, who first appeared on April 26, 2000. (Id.; Resp't's Br. at 42 n.17). Smith's new counsel pursued his speedy trial motion, which resulted in Smith's release on his own recognizance on July 25, 2000, but not the dismissal of the indictment. (See Smith Suppl. Br. at 20-23).
Smith's trial began on August 7, 2000, slightly more than two years after his arraignment. (Id. at 2). Following his September 25, 2000 conviction, Smith perfected an appeal. (Id.). As part of his appeal, Smith filed a pro se brief which asserted several claims, including a Sixth Amendment speedy trial claim. On March 11, 2003, the Appellate Division, First Department, unanimously affirmed his conviction. People v. Smith, 755 N.Y.S.2d 600 (1st Dep't 2003). Thereafter, by letter application dated March 17, 2003, Smith sought leave to appeal to the New York Court of Appeals, (see Attias Decl. Ex. E), which was denied on May 12, 2003. People v. Smith, 100 N.Y.2d 543 (2003) (table).
Smith's petition is dated March 25, 2004, and was timely received by the Pro Se Office of this Court on April 30, 2004. (See Docket No. 1). Liberally construed, Smith's petition appears to raise three closely-related claims arising out of the lengthy pretrial delay in his case: (i) a Fifth and Fourteenth Amendment due process claim because Justice Wittner failed to conduct a computational hearing pursuant to CPL § 30.30; (ii) a claim that the People violated the federal Speedy Trial Act, 18 U.S.C. § 3161, et seq.; and (iii) a claim that his prosecution violated Rule 48(b) of the Federal Rules of Criminal Procedure ("Rule 48(b)"), which he ...