The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
JnJacques Cesar ("Petitioner") was convicted on April 25, 2002 in New York State Supreme Court, Queens County, after a trial by jury, of three counts of criminal sale of a controlled substance in the third degree. The Appellate Division, Second Department, affirmed Petitioner's conviction on April 12, 2004. People v. Cesar, 774 N.Y.S. 2d 398 (2d Dep't 2004). The New York Court of Appeals denied Petitioner's application for leave to appeal on June 16, 2004. People v. Cesar, 3 N.Y.3d 638 (2004). Petitioner challenges his conviction through the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the ground that his due process rights under the Fifth Amendment were violated by the prosecution's 13-month delay in indicting him. Specifically, Petitioner argues that he suffered substantial prejudice because his ability to call potential alibi witnesses was impaired by the delay. For the reasons set forth below, the petition is denied.
On February 11, 1999, Petitioner approached two undercover officers at the corner of 205th Place and Hollis Avenue in Queens and offered to sell them cocaine. Petitioner sold cocaine to the officers in exchange for $140 cash in pre-recorded buy money. Petitioner gave the officers his pager number and a code and instructed them to page him if and when they wanted to buy more cocaine. (Tr. at 421--27, 450--57.) The undercover officers conferred with their supervisor, Detective Kevin Daly, and decided to conduct a long-term buy operation instead of a buy and bust, whereby they would have arrested Petitioner immediately. (Id. at 481--82, 711--12.) In total, eight separate transactions occurred between Petitioner and undercover officers between February 11, 1999 and July 22, 1999. (Id. at 711--33.)
Detective Daly, assigned to the narcotics unit of the New York City Police Department and the case officer in charge of the operation, testified that, on March 24, 1999, the date of the fourth case buy, he parked around half a block away from the scene. After Detective Daly received a radio communication from one of the undercover officers reporting that a successful buy had just taken place, he followed Petitioner, who was traveling in the passenger seat of a white Mercedes that Detective Daly had observed from his parked location. Detective Daly pulled over the car for failing to signal on a u-turn and obtained Petitioner's name and address in Elmont, New York from inspecting his driver's license. (Tr. at 715--16, 721--23.) Detective Daly did not arrest Petitioner at the traffic stop. He testified that he and his colleagues were "building a case" in order to "gather more information from the defendant to find out where he [was] getting or receiving the product from or where he [kept] the product himself." (Id. at 712.) Detective Daly placed Petitioner's home under surveillance during three of the last four case buys and once, on April 20, 1999, observed Petitioner exit his home prior to meeting the undercover officers to sell the cocaine. (Id. at 723--32.)
After the last arranged buy took place on July 22, 1999, the undercover officers unsuccessfully tried to contact Petitioner to continue buying more cocaine. One of the undercover officers testified to calling Petitioner's pager number about three or four times between August 1999 and January 2000, but Petitioner only answered once in January 2000 and told the undercover officer that he was no longer selling cocaine. (Tr. at 640--42.)
Detective Daly testified that, following the undercover officer's conversation with Petitioner in January 2000, he decided to conclude the long-term buy operation and attempted to locate and arrest Petitioner. From January to August 2000, Detective Daly conducted surveillance of Petitioner's house for thirty minutes to an hour, approximately one to three times per month. (Tr. at 733--36.) In response to Petitioner's motion to reargue a decision by Queens County Supreme Court, denying Petitioner's motion to dismiss the indictment due to prosecution delay, the prosecutor asserted that Detective Daly also conducted surveillance of the home of Richard Belony, the driver of the car in which Petitioner had been riding when Detective Daly identified him after the fourth case buy, and filled out a "Wanted Card." (Resp't Ex. E at 3.) These initiatives were met with negative results. (Id.)
While testifying at a hearing to suppress identification testimony held on May 16, 2001, Detective Daly provided additional details about his efforts to locate Petitioner. On January 9, 2000, in response to an inquiry from Detective Daly, the Nassau County Police Department contacted Detective Daly and informed him that a man with the name "Patrick Cesar" was listed as living at the same Elmont address given by Petitioner and sent him a photo spread of the man.
On February 4, 2000, Detective Daly showed the photo spread to the two undercover officers who had worked on the case buys, and they positively identified the man as Petitioner. Detective Daly testified at the hearing that, at around that time, he discovered that Petitioner had a prior felony conviction from an arrest in Nassau County and had a probation officer in New York City. On August 28, 2000, Detective Daly received a call from Petitioner's probation officer notifying him that Petitioner was scheduled to report to the probation office in Brooklyn later that day. Detective Daly arrested Petitioner when he arrived at the probation office for a hearing on August 28, 2000. (Hr'g at 13--17, 26, 33--34, 39, 42--43.)
Petitioner was arraigned in Queens County Supreme Court. On January 17, 2001, Petitioner moved the trial court to dismiss the indictment on the ground that the 13-month delay between the last cocaine sale, July 22, 1999, and the arrest, August 28, 2000, was unjustified and constituted a denial of due process because of prejudice to Petitioner's ability to locate alibi witnesses. In the alternative, Petitioner requested a hearing to ascertain the efforts made by law enforcement to arrest him. (Resp't Ex. A.) On February 22, 2001, the state court denied the motion to dismiss the indictment and Petitioner's request for a hearing, because "the defendant [had] failed to show that the length of the pre-indictment delay was so long as to be prejudicial in and of itself or that actual prejudice [had] occurred as a result of the pre-indictment delay." (Resp't Ex. C.)
On July 2, 2001, Petitioner filed a motion to reargue his prior motion for dismissal, arguing that he had indeed suffered actual prejudice because potential alibi witnesses were unable to recall the time periods in which the crimes Petitioner was indicted for occurred. Petitioner reiterated his alternative request for a hearing to determine the existence of actual prejudice created by the pre-indictment delay. (Resp't Ex. D.) On October 16, 2001, the trial court denied Petitioner's motion and adhered to its original decision denying dismissal. (Resp't Ex. F.)
On March 27, 2002, following a jury trial that included testimony from Detective Daly and both undercover officers, Petitioner was found guilty of three counts of criminal sale of a controlled substance in the third degree. The judgment of conviction was entered by Queens County Supreme Court on April 25, 2002. Petitioner appealed the conviction to the Appellate Division, Second Department, on the ground that the thirteen-month delay in prosecuting him, and the denial of his motion to dismiss the indictment on that basis, violated his due process rights. On April 12, 2004, the Appellate Division affirmed the trial court's decision, holding that "[t]he People presented a reasonable explanation for the 13-month delay . . . . [and] no hearing was necessary . . . . because the record was fully developed as to the reasons for the delay." People v. Cesar, 774 N.Y.S.2d 398 (2d Dep't 2004).
Petitioner sought leave to appeal to the New York Court of Appeals, raising the same due process claim. On June 16, 2004, the New York Court of Appeals denied Petitioner's leave to appeal application. People v. Cesar, 3 N.Y.3d 638 (2004). Having exhausted all state court claims, Petitioner timely filed the instant petition for a writ of habeas corpus on September 1, 2004. Petitioner asserts the same constitutional claim he raised in the state courts, that "the thirteen-month, unjustified pre-indictment delay in prosecution, and the summary denial of Petitioner's motion to dismiss on that ...