The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
Andre Jeffries brings this pro se petition for a writ of habeas corpus pursuant to 28 USC § 2254. The petitioner was convicted after pleading guilty in New York State Supreme Court, Bronx County, to Assault in the Second Degree in violation of N.Y. Penal Law § 120.05, and was sentenced as a persistent violent felony offender to a term of fourteen years to life imprisonment. The judgment was entered on March 15, 2005. The petitioner's conviction was affirmed on May 19, 2009, by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied on August 17, 2009. People v. Jeffries, 879 N.Y.S.2d 118 (App. Div. 2009), appeal denied, 914 N.E.2d 1017 (N.Y. 2009). The petitioner subsequently made a motion for a writ of error coram nobis, which was denied by the Appellate Division, after which leave to appeal to the New York Court of Appeals was denied.
The petitioner challenges his conviction on the ground that he allegedly received ineffective assistance of appellate counsel. The petitioner claims that his appellate counsel erred by failing (1) to raise a Fourth Amendment violation claim on direct appeal and (2) to argue ineffective assistance of trial counsel.
Prior to his guilty plea, the defendant made a motion to suppress identification testimony as well as his statements to law enforcement officials. That motion was denied. The trial court made the following findings of fact in rejecting the petitioner's motion.
On March 2, 2002, while investigating a stabbing at Bronx Lebanon Hospital, Police Officer Mattison heard someone run past him yelling "help, help, someone get the police, get a doctor." (Killian Decl. Ex. 12 at 1 ("Suppression Op.")) Almost simultaneously, a doctor yelled to Mattison "get that guy" and pointed at the petitioner. Id. Officer Mattison also noticed a woman with blood on her mouth, face and hands. Id. Officer MAttison chased the petitioner through two sets of double doors and subsequently apprehended him. Id. at 2. Nearing the petitioner, Mattison noticed blood on the petitioner's hands and coat. Id. Officer Mattison asked the petitioner "what are you doing," and the petitioner answered, "I didn't do anything."
Id. Mattison then placed the petitioner under arrest, handcuffed him, and brought him back into the emergency room where a security officer informed Officer Mattison that the petitioner had assaulted a nurse. Id. When Officer Mattison located the victim, he asked her whether she could identify the individual who assaulted her, and she pointed to the petitioner. Id.
On July 30, 2003, the trial court denied the suppression motion, finding that "[the] observations taken as a whole gave the officer more than probable cause to believe that a crime had been committed and that the [petitioner] had committed that crime". Id. at 3. The court also found that the show-up identification was not suggestive. Id. at 4. The petitioner then moved for dismissal based on a statutory speedy trial claim. On October 31, 2004, the state supreme court found that the State was ready to proceed to trial within the statutory period, that there was no "impediment to the people proceeding to trial" and denied the petitioner's motion to dismiss. The supreme court found that the State could be charged with a delay of one hundred and twelve days, safely within the statutory period of six months.
On November 3, 2004, the petitioner pleaded guilty to Assault in the Second Degree in violation of N.Y. Penal Law § 120.05 pursuant to a plea agreement. The petitioner admitted that he had assaulted the victim by sticking his fingers down her throat with such force as to cause her injury. The state supreme court entered judgment convicting the petitioner, pursuant to the plea agreement on March 15, 2005. The petitioner was sentenced to fourteen years to life imprisonment.
The petitioner, represented by new counsel, appealed his conviction to the Appellate Division. In his appellate brief, the petitioner argued that the trial court erred (1) in denying his motion to dismiss pursuant to C.P.L. 30.30, the statutory speedy trial claim, (2) by charging him as a persistent violent felony offender and (3) in denying his motion to suppress the identification because the identification procedure was unconstitutional and unduly suggestive. In the petitioner's reply brief, in addition to the statutory speedy trial claim that had been raised at the trial level, appellate counsel also raised a federal constitutional speedy trial claim.
On May 19, 2009 the Appellate Division unanimously affirmed the judgment of conviction. Jeffries, 879 N.Y.S.2d 118. The Appellate Division held that "by pleading guilty, [the petitioner] forfeited his statutory speedy trial claim." Id. at 118. The court also held that the constitutional speedy trial claim was improperly raised for the first time in the reply brief. Moreover, the claim had not been raised before the trial court and was therefore unpreserved. The court also noted that, "[a]s an alternative holding, we also reject it on the merits." Id. at 119. The court found that the trial court properly denied the motion to suppress because, "[w]hile the transcript of the hearing is apparently lost, we conclude, based on the hearing court's detailed findings, that the showup was not unduly suggestive." Id. Finally, the Appellate Division found that the challenges to the petitioner's persistent violent felony offender adjudication were unpreserved, and alternatively rejected them on the merits. Id. The petitioner's application for leave to appeal to the New York State Court of Appeals was denied on August 17, 2009. See Jeffries, 914 N.E.2d 1017 (N.Y. 2009).
By pro se papers dated April 22, 2010, the petitioner sought a writ of error coram nobis in the Appellate Division. In his application for a writ of error coram nobis, the petitioner claimed ineffective assistance of appellate counsel for failure to argue that the arresting officer did not have probable cause to detain the petitioner and for failure to argue ineffective assistance of trial counsel based on failure to preserve a constitutional speedy trial claim. The Appellate Division denied the motion for writ of error coram nobis in an order dated August 17, 2010, and leave to appeal to the New York Court of Appeals was denied on November 22, 2010. (Killian Decl. Exs. 10, 11)
The petitioner brings this petition for a writ of habeas corpus alleging the same grounds brought in his ...