The opinion of the court was delivered by: Hon. Hugh B. Scott
Petitioner Michael Newsome has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court conviction. He asserts the following grounds in support of his Petition: speedy trial under New York Criminal Procedure Law § 30.30, failure to hold a hearing on this speedy trial issue, and ineffective assistance of counsel. The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)) (Docket No. 13, December 10, 2006).
Offense and State Court Proceedings
Petitioner was charged with offenses stemming from the sale of crack cocaine in March 7, 2001 (Docket No. 11, Resp't Memo. of Law at 2). On March 15, 2001, a felony complaint was lodged against petitioner alleging two counts arising from that drug sale (Docket No. 10, Resp't Atty. Decl. Ex. B, Metcalfe Aff. ¶ 3) and petitioner was arraigned on that complaint in Elmira City Court the next day (id., Ex. G, Metcalfe [2d] Supp'al Aff. ¶ 2). At that appearance, the Public Defender was assigned to represent petitioner (id. ¶ 3).
On September 5, 2001, the prosecutor offered a plea agreement to petitioner through the Public Defender (Docket No. 10, Resp't Atty. Decl. Ex. B, Ex. 1). The next day, the Public Defender waived the next two weeks for the statutory speedy trial calculation to allow his client time to consider the plea offer (id., Ex. E, Reilly Aff. ¶ 2; Docket No. 10, Resp't Atty. Decl. Ex. H, Ex. A (Public Defender's notes)) and to not have the matter presented to the grand jury during that time. Petitioner claims, however, that he was never advised of this waiver (id., Ex. E, Reilly Aff. ¶ 2).
On September 11, 2001, the World Trade Center was attacked and the next day Governor George Pataki declared a disaster emergency, suspending until further notice (among other statutes of limitations and the like) the speedy trial deadlines of Criminal Procedure Law § 30.30 during that emergency (id., Ex. B, Ex. 3, Exec. Order No. 113.7). Governor Pataki later lifted this suspension of Criminal Procedure Law § 30.30 on October 16, 2001 (see id., Ex. C, Metcalfe Supp'al Aff. ¶ 8, Ex. 4; N.Y. Exec. Order No. 113.28).
Meanwhile, on September 18, 2001, petitioner appeared in Elmira City Court an inquired about his rights under § 30.30 (id., Ex. E, Reilly Aff. ¶ 3). The next day, the Public Defender told the prosecution that petitioner declined the plea offer (id., Ex. B, Ex. 2). The case could have been presented to the grand jury on September 20, 2001, but due to the prosecutor being in the United States Marine Corps Reserve and the fact that the People did not have sufficient time from petitioner's rejection of the plea offer to get witnesses before the grand jury the next day (id., Ex. B, Metcalfe Aff. ¶¶ 6-7; Docket No. 10, Resp't Atty. Decl. Ex. F, Metcalfe [2d] Aff. ¶ 9).
Petitioner was indicted on October 4, 2001 (id., Ex. A, Indictment), with the People handing up the Indictment in open court on October 5, 2001 (id., Ex. C, Metcalfe Supp'al Aff. ¶ 4). The prosecutor and the Public Defender agreed to arraign petitioner on the Indictment on October 15, 2001 (id. ¶ 5). At the October 15, 2001, appearance, however, petitioner was not present. The Public Defender then announced that his office had a conflict in this case and sought to be relieved. The court appointed Kevin Flynn as petitioner's new assigned counsel. (Id. ¶¶ 6-7; Docket No. 10, Resp't Atty. Decl. Ex. F, Metcalfe [2d] Aff. ¶ 14.)
Flynn moved to dismiss the Indictment for petitioner on state law speedy trial grounds in October 2001 (Docket No. 10, Resp't Atty. Decl. Ex. D, Order at 3; Docket No. 11, Resp't Memo. at 3), but the Chemung County Court denied the motion on December 4, 2001 (see Docket No. 11, Resp't Memo. at 3; Docket No. 10, Resp't Atty. Decl. Ex. D). The prosecutor argued there that the state statutory speedy trial clock did not run on the one charge alleged in the Indictment until October 4, 2001, while two counts originally alleged in a criminal Complaint against petitioner ran from March 15, 2001 (Docket No. 10, Resp't Atty. Decl. Ex. B, Metcalfe Aff. ¶¶ 2, 3).
Petitioner argues that the Public Defender affected his speedy trial rights by engaging in this plea negotiations while a conflict of interest existed. First petitioner's newly assigned counsel Flynn moved to dismiss the Indictment, as discussed above, then in April 2002, newly assigned counsel Thomas Reilly moved to reargue that motion (Docket No. 10, Resp't Atty. Decl. Ex. E), both on speedy trial grounds. But both motions were denied holding that the prosecution had shown trial readiness (Docket No. 11, Resp't Memo. at 3-4; Docket No. 10, Resp't Atty. Decl. Ex. I).
Petitioner plead guilty in July 2002, but petitioner absconded and a bench warrant was issued for his arrest, see People v. Newsome, 17 A.D.3d 785, 729 N.Y.S.2d 365 (3d Dep't), leave to appeal denied, 5 N.Y.3d 766, 801 N.Y.S.2d 260 (2005). Petitioner filed a state petition for habeas corpus on December 30, 2003 (Docket No. 10, Resp't Atty. Decl. Ex. J), which the Chemung County Court rejected (id. Ex. K). He was returned in 2004 and petitioner was convicted, on February 2, 2004, in Chemung County Court for attempted criminal sale of a controlled substance in the third degree, in violation of New York Penal Law §§ 110.00, 220.39(1). He was sentenced (as a second felony offender) to an indeterminate term of imprisonment from three to six years. (Docket No. 11, Resp't Memo. at 2.)
Petitioner then appealed his conviction and it was affirmed, People v. Newsome, 17 A.D.3d 785, 729 N.Y.S.2d 365 (3d Dep't), leave to appeal denied, 5 N.Y.3d 766, 801 N.Y.S.2d 260 (2005). The only ground argued (see Docket No. 10, Resp't Atty. Decl. Ex. L) and discussed by the Third Department was petitioner's objection under Crim. Proc. Law § 30.30 speedy trial, with that court holding that he made a knowing, ...