The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Anthony Smith ("Smith") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of criminal sale of a controlled substance in the third degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from Smith's sale of two "dime bags" of cocaine to an undercover police officer on October 17, 2000. On October 18, 2000, Smith was arraigned on the felony complaint with defense counsel present, who requested an adjournment for a preliminary hearing. This was scheduled for October 20, 2000, on which date Smith waived the matter to the grand jury. The grand jury returned Indictment No. 218/01 on April 13, 2001, charging Smith with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree. The indictment was filed with the court on the same day, and the prosecution included therein a notice pursuant to People v. Kendzia*fn1 indicating that the People were ready for trial. The prosecution filed a second Kendzia notice with the Monroe County Court and served a copy on Smith's defense counsel on April 20, 2001; however, defense counsel averred that she did not receive the notice until April 24, 2001. At a pre-trial hearing, the prosecutor conceded that the notice of trial readiness was actually date-stamped on April 23, 2001.
On June 20, 2001, defense counsel for Smith moved pursuant to New York's so-called "Speedy Trial" statute, Criminal Procedure Law ("C.P.L.") § 30.30, to dismiss the indictment because the prosecution had not complied with its statutory obligation to be ready for trial within six months of the commencement of the action.*fn2 The trial court (Connell, J.) denied the motion on July 25, 2001. The court held that the time between October 20, 2000, when the case was waived to the grand jury, and April 13, 2001, when the indictment was filed with the court, was chargeable to the prosecution. The court stated that the prosecution's Kendzia notice filed on April 23, 2001, fulfilled the requirements of C.P.L. § 30.30(1)(a). Monroe Count Supreme Court Order at 1 (citation omitted), Respondent's Appendix ("Resp't App."), Exhibit ("Ex.") E at 29.
Smith's jury trial commenced in Supreme Court (Monroe County) (Fisher, J.) on March 4, 2002. The jury returned a verdict in which it acquitted Smith of the possession count and convicted him of the criminal sale count. Smith was sentenced as a second felony offender to an indeterminate sentence of five to ten years.
On direct appeal, appellate counsel raised one claim--that the trial court erred in denying Smith's motion to dismiss the indictment based on the prosecution's failure to comply with the strictures of New York's Speedy Trial statute, C.P.L. § 30.30. The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed the conviction. Leave to appeal to the New York Court of Appeals was denied.
Smith filed the instant habeas petition raising one claim--that his Sixth Amendment right to a speedy trial was violated. Respondent answered and interposed the defense of non-exhaustion with respect to Smith's sole claim. Smith then filed a motion to have his petition held in abeyance so that he could return to state court to exhaust his remedies with respect to a claim of ineffective assistance of appellate counsel premised on counsel's failure to assert a Sixth Amendment Speedy Trial claim on direct appeal. In this regard, Smith filed an application for a writ of error coram nobis in the Appellate Division which denied the application in an memorandum decision and order. Respondent's Supplemental Appendix ("Resp't Supp. App."), Ex. C. Leave to appeal to the New York Court of Appeals was denied.
Respondent answered the amended petition, and Smith submitted a reply to respondent's answering memorandum of law, disputing many of respondent's factual assertions. Smith recently made a motion to have this Court hold an evidentiary hearing on his claims.
For the reasons set forth below, the Court concludes that no hearing is necessary to resolve this matter. The request for a writ of habeas corpus is denied, and the petition is dismissed.
Exhaustion and Procedural Default
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that--(A) the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 1731 (1999); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995)."The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). This means that the petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988).
Here, Smith's brief to the Fourth Department--prepared by appellate counsel--referred only to C.P.L. § 30.30, dealt only with state statutory ready-for-trial issues under C.P.L. § 30.30, and employed only state cases and state law analysis; there is no reference in the table of authorities or in the rest of the brief of to any federal case law or to the federal constitution. Clearly, the claim Smith raised in state court rested solely on state procedural grounds. C.P.L. § 30.30 requires only that the prosecution be ready for trial within a prescribed time frame, and not that the defendant actually be afforded a speedy trial. See People v. Anderson, 66 N.Y.2d 529, 498 N.Y.S.2d 119, 488 N.E.2d 1231 (N.Y. 1985) (stating that C.P.L. § 30.30, setting forth time limitations in which People must be ready for trial, addresses only problem of prosecutorial readiness, and is not a "Speedy Trial" statute in the constitutional sense). Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be ready for trial, a § 30.30 claim does not raise a federal constitutional claim. Accord, e.g., Gibriano v. Attorney General of the State of New York, 965 F. Supp. 489, 491-492 (S.D.N.Y. 1997) (denying habeas relief and noting that "Section 30.30 [of the New York Criminal Procedure Law] is a statutory time in which the People of New York must be ready for trial; Section 30.30 is not, as such, a statutory embodiment of the constitutional guarantee to a speedy trial."); Rodriguez v. Miller, No. 96 Civ. 4723(HB), 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) ("[A] C.P.L. § 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition."); Jackson v. McClellan, No. 92 Civ. 7217(JFK), 1994 WL 75042, at *2 (S.D.N.Y. Mar.4, 1994) (holding that petitioner failed to fairly present constitutional speedy trial issue to state court where petitioner argued "entirely in terms of New York Statutory law [C.P.L. § 30.30]"). The conclusion is inescapable that Smith did not fairly present his federal constitutional speedy trial claim to the state court, and therefore it is not exhausted.
For purposes of satisfying the exhaustion requirement, a federal habeas court need not require that a federal claim be presented to a state court if it is "clear" that the state court would hold the claim to be procedurally barred. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (in turn quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989)) (quotation marks omitted). In such a case, a habeas petitioner does not have "remedies available in the courts of the State" within the meaning of 28 U.S.C. § 2254(b). Grey v. Hoke, 933 F.2d at 120. Claims that would face such a procedural bar are "deemed exhausted" by the federal courts. E.g., Reyes v. Keane, 118 ...