The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Luis Martinez ("Martinez" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being held in custody as a result of an unconstitutional state-court criminal conviction. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).
Under Erie County Indictment No. 97-0526-001, petitioner was charged as an accessory with two counts of Robbery in the First Degree (N.Y. Penal Law §§ 160.15(1), (2); 20.00), two counts of Assault in the First Degree (N.Y. Penal Law §§ 120.10(1), (4); 20.00), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law §§ 265.03, 20.00) and Grand Larceny in the Third Degree (N.Y. Penal Law §§ 155.35, 20.00). The charges arose from petitioner's participation in a robbery on February 25, 1997 at a Tops Supermarket in the City of Tonawanda. Erie County Indictment No. 97-2578-001 charged Martinez as an accessory with Attempted Robbery in the First Degree (N.Y. Penal Law §§ 110.00, 160.15(4), 20.00), Conspiracy in the Fourth Degree (N.Y. Penal Law § 105.10(1)), Robbery in the First Degree (N.Y. Penal Law §§ 160.15(4), 20.00) and Grand Larceny in the Fourth Degree (N.Y. Penal Law §§ 155.30, 20.00). The charges in the second indictment were based on petitioner's alleged participation in a robbery at a Tops Supermarket in the City of Buffalo on December 20, 1996.
Martinez pled guilty on July 15, 1998, in Erie County Court (DiTullio, J.) to first degree robbery and attempted first degree robbery in satisfaction of Indictment No. 97-2578-001 and to first degree robbery in satisfaction of Indictment No. 97-0526-001. As a condition of the plea bargain, Martinez waived his right to appeal. The trial court subsequently sentenced petitioner as a second violent felony offender to consecutive fifteen year terms on the first degree and attempted first degree robbery convictions, with a term of seven years on the remaining robbery conviction to run concurrently thereto. Thus, his aggregate sentence totaled thirty (30) years.
On direct appeal, appellate counsel raised one ground--that petitioner's sentence was harsh and excessive. The Appellate Division, Fourth Department unanimously affirmed the conviction. People v. Martinez, 278 A.D.2d 952 (App. Div. 4th Dept.). The New York Court of Appeals denied leave to appeal.
Proceeding pro se, Martinez filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court alleging that trial counsel was ineffective in failing to move to the dismiss the indictments upon statutory speedy trial grounds (C.P.L. § 30.30(1)); that several counts of the first indictment relating to the robbery on January 24, 1997, were improperly re-submitted to the grand jury; and that the trial court did not have jurisdiction over the matter because of alleged defects in the grand jury proceeding. The trial court held that "[a]ll of the relevant proceedings germane to the defendant's contentions, including arraignments, motions, pretrial conferences, plea and sentence appearances, are matters of record." County Court's Order Denying C.P.L. § 440.10 Motion ("440.10 Order") at 3, submitted as part of Respondent's Exhibit ("Resp't Ex.") C. Hence, the trial court found, the "record contain[ed] sufficient facts to have permitted the defendant to obtain appellate review of both the claims of ineffective assistance of counsel and lack of personal jurisdiction." Id. However, because Martinez did not raise these issues on direct appeal, the trial court held that his motion had to be denied pursuant to C.P.L. § 440.10(2)(c). Id. Furthermore, Martinez's appellate-rights waiver, the validity of which he never has challenged, precluded him from challenging alleged defects in the grand jury. Id. (citation omitted). The trial court then considered Martinez's § 440.10 claims substantively and found them all lacking in merit. Id. at 3-4. The trial court, in denying these claims when raised in support of the C.P.L. § 440.10 motion, found that in addition to being procedurally barred as a result of both C.P.L. § 440.10(2)(c) and Martinez's appellate-rights waiver, they were wholly without merit. First, on the facts of Martinez's case, the trial court found that a speedy trial dismissal motion would not have succeeded, and trial counsel was not ineffective in "failing to bring what would have been an unsuccessful motion." § 440.10 Order at 4 (citation omitted). Second, the trial court found "no merit" to his argument that trial counsel was ineffective in failing to contest the validity of the indictment with which petitioner's two co-defendants were charged; because Martinez was not also charged under that indictment, he had no standing to attack the integrity of the grand jury proceedings relating thereto. Finally. the trial court rejected Martinez's allegation that the grand jury that handed up the indictment charging the co-defendants returned a "no true" bill with regard to the February 25, 1997 robbery--for which Martinez had been previously charged under a different indictment. The court found it to be "pure speculation, unsupported by the record, and an allegation for which [he] provide[d] no documentation." Leave to appeal denial of the C.P.L. § 440.10 motion was denied by the Appellate Division.
Martinez thereafter filed a pro se application for a writ of error coram nobis alleging a "legal impediment & jurisdictional violation pursuant to CPL 210.20 Subd. 1(H)". The Appellate Division summarily denied the coram nobis application, and leave to appeal to the New York Court of Appeals also was denied.
This federal habeas petition (Docket No. 1) followed. Respondent filed an answer and memorandum of law in opposition (Docket Nos. 8 & 9), and petitioner filed a memorandum of law in traverse (Docket No. 10).
For the reasons that follow, the petition is dismissed.
Legal Principles Applicable to Habeas Petitions Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "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," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." Id. § 2254(d)(2). "A federal court may not grant a writ of habeas corpus to a state prisoner 'unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.'" Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995) (quoting 28 U.S.C. § 2254(b)). A petitioner must have presented the substance of his federal claims to the highest court of from which review of them may be obtained in order to fulfill the exhaustion requirement. Id. (citations omitted). In the past, if a federal habeas petition contained unexhausted claims, federal courts were instructed to dismiss it without prejudice to re-file. See Rose v. Lundy, 455 U.S. 509, 510 (1982) (cited in Bossett, 41 F.3d at 828). Under AEDPA's revisions to the habeas statute, federal courts now have the authority to deny a petition containing unexhausted claims on the merits. See 28 U.S.C. § 2254(b)(2). With regard to an unexhausted claim for which the habeas petitioner no longer has "remedies available" in the state courts within the meaning of 28 U.S.C. § ...