Opinion
No. 01 Civ. 2172 (SAS)
February 14, 2003
MEMORANDUN OPINION AND ORDER
Victor Castillo, proceeding pro Se, seeks a federal writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("section 2254"). In his petition, Castillo ("petitioner") raises the following grounds: (1) that his guilty plea was not knowing and voluntary due to the ineffective assistance of his trial counsel; (2) that his counsel was ineffective in other ways; and (3) that the thirty-four month delay from petitioner's arrest to his guilty plea was excessive and deprived him of his constitutional and statutory rights to a speedy trial. See Petition dated January 13, 2001 ¶ 12. Only the third ground was raised in petitioner's direct appeal to the New York State Supreme Court, Appellate Division, First Department. See Brief for Defendant-Appellant, Ex. 1 to the Affidavit in Opposition of Danielle L. Attias, Assistant District Attorney ("Attias Aff."). The First Department rejected this claim and affirmed the conviction. See People v. Castillo, 697 N.Y.S.2d 249 (1st Dep't 1999), Ex. 3 to the Attias Aff. Petitioner did not present his ineffective assistance of counsel claims to the state court, either on direct appeal or by a motion pursuant to section 440.10 of the New York Criminal Procedure Law ("section 440.10"). Because petitioner has filed a so-called "mixed petition," the petition is hereby stayed in order to permit petitioner to fully exhaust his state remedies.
Specifically, petitioner claims that he was deprived of effective assistance of counsel because his attorney did not file a speedy trial motion and did not inform him that he could appeal the trial coast's denial of his pro se motion to dismiss the indictment.
I. PROCEDURAL HISTORY
Petitioner was indicted in connection with a shooting that occurred on January 7, 1994 in the Bronx. Petitioner was charged with second-degree murder and first degree manslaughter as the result of the death of one victim. He was also charged with attempted murder and assault in the first and second degrees for injury to another victim. In addition, he was charged with various weapons offenses.
In a pro se motion dated October 8, 1996, petitioner moved to dismiss the indictment on the ground that he was denied his statutory and constitutional rights to a speedy trial under New York Criminal Procedure Law § 30.20 and the Sixth Amendment to the United States Constitution, respectively. See Notice of Motion, Ex. 7 to the Attias Aff. The trial court, Judge Joseph Cerbone, denied the motion without opinion.
On October 28, 1996, petitioner pled guilty to Manslaughter in the First Degree, in violation of New York Penal Law § 160.05, in full satisfaction of the indictment. On December 5, 1996, petitioner was sentenced, as a second felony offender, to an indeterminate term of seven to fourteen years imprisonment. On direct appeal to the First Department, petitioner argued that: 1) the thirty-four month delay from his arrest to his guilty plea deprived him of his statutory and constitutional rights to a speedy trial; and 2) his sentence of seven to fourteen years was excessive. See Brief for Defendant-Appellant, Ex. 1 to the Attias Aff., at 11, 24. The People responded, inter alia, that: (1) petitioner's speedy trial argument was not reviewable because he did not provide the minutes for the relevant adjourn dates to substantiate his claim; and (2) that petitioner's sentence was fair. See Respondent's Brief, Ex. 2 to the Attias Aff., at 5, 22.
On October 12, 1999, the First Department affirmed petitioner's conviction. See People v. Castillo, 697 N.Y.S.2d 249 (1st Dep't 1999), Ex. 3 to the Attias Aff. The court agreed with the People that petitioner's claim was unreviewable because "he bias provided the minutes of only one of the numerous relevant adjournment dates." Id. Petitioner's excessive sentence claim was also rejected by the court. See id.
By letter dated October 29, 1999, petitioner sought leave to appeal to the Court of Appeals. See 10/29/99 Letter from Nancy F. Little, Associate Appellate Counsel-Legal Aid Society, to the Honorable Judith S. Kaye, Chief Judge, Court of Appeals, Ex. 4 to the Attias Aff. On January 26, 2000, Judge Albert H. Rosenblatt denied leave to appeal. See People v. Castillo, 94 N.Y.2d 878 (2000). Castillo's habeas petition, dated January 13, 2001, was transferred from the Western District of New York to this Court on March 14, 2001.
II. DISCUSSION
A. The Exhaustion Requirement
Before a federal court can grant habeas relief, a petitioner must exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1). See also Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). To satisfy the exhaustion requirement, "a petitioner must present the substance of the same federal constitutional claims that he now urges upon the federal courts to the highest court in the pertinent state." Id. at 89-90 (internal quotation marks, brackets and citations omitted). See also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("This role of comity reduces friction between the state and federal court systems by avoiding the unseemliness of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.") (internal quotation marks, brackets and citation omitted); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) ("If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution."). A petitioner must present an unexhausted claim to the state court even when it is likely that the state court will invoke a procedural bar and thereby refuse to hear the claim. See Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990) (per curiam) ("Until Pesina presents his claim to the highest state court — whether or not it seems likely that he will be held to be procedurally barred — he has not exhausted available state procedures.") (citing 28 U.S.C. § 2254(c)).
The statute states, in pertinent part, as follows:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the 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; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
B. Availability of a State Court Remedy
When a claim has never been presented to a state court, i.e. an unexhausted claim, a federal court may deem it exhausted where presentation to the state court would be futile due to a state law procedural bar. See Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). "However, the procedural bar that gives rise to [deemed] exhaustion provides an independent and adequate state-law ground for the conviction and sentence, and thus prevents federal habeas corpus review of the defaulted claim. . . ." Gray v. Netherland, 518 U.S. 152, 162 (1996). The question that arises, then, is whether there is an available mechanism petitioner can employ to present his ineffective assistance of counsel claims to the state courts.
Section 440.10 provides that "[a]t any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that . . . [t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." N.Y. Crim. Proc. Law § 440.10(1) (McKinney 1994). However, a court must deny a motion to vacate a judgment brought pursuant to section 440.10 when:
Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
§ 440.10(2)(c). The next question, therefore, is whether petitioner's ineffective assistance of counsel claims are "outside the record" such that they may be presented to the sate court by way of a section 440.10 motion.
The Court of Appeals has time and time again advised that ineffective assistance of counsel is generally not demonstrable on the main record. Indeed, the court has stated that in the typical case it would be better, and in some cases essential, that an appellate attack on the effectiveness of counsel be bottomed on an evidentiary exploration by a collateral or postconviction proceeding brought under CPL 440.10. The instant claim of ineffective assistance, predicated entirely, as it is, upon alleged faulty legal advice given by counsel, appears to be one preeminently necessitating CPL article 440 review.People v. Harris, 491 N.Y.S.2d 678, 687 (2d Dep't 1995) (internal quotation marks and citations omitted) (cited in Reyes, 118 F.3d at 139). See also Rowe v. People of the State of New York, No. 99 Civ. 12281, 2002 WL 100633, at *5 (S.D.N.Y. Jan. 25, 2002) ("Given that the primary claim of counsel's failure to investigate rests on facts outside the record, it cannot be said that his unexhausted claim of ineffective assistance of counse is `so patently meritless that [it is] destined for denial.'") (quoting Jones v. Senkowski, No. 00-2145, 2001 WL 1230800, at *4 (2d Cir. Oct. 5, 2001) (alteration in original).
Here, petitioner claims that his guilty plea was "unlawfully induced and was not made voluntarily with the understanding of the nature of the charge and the consequences of the plea" due, in part, to his counsel's alleged failure to explain the rights he would be giving up by pleading guilty. Petition ¶ 12(A). In addition, petitioner states that his trial attorney was ineffective because he never filed a speedy trial motion on petitioner's behalf despite feeling "that this was a legal procedure that [petitioner] was denied. Id. ¶ 12(B). Finally, petitioner claims that his counsel never informed him that he could appeal the denial of his pro se motion to dismiss. See Id. These claims are outside the record as they refer to what petitioner's counsel did or did not say or do. See People v. Simmons, 635 N.Y.S.2d 373, 374 (4th Dep't 1995) (holding that defendant's claim that his counsel was ineffective for failing to develop a sufficient factual record at a suppression hearing was not subject to review on direct appeal but was subject to review through a proceeding brought pursuant to article 440 of the Criminal Procedure Law). Because petitioner may be able to bring his ineffective assistance of counsel claims to the state court by means of a section 440.10 motion, these claims are not deemed exhausted. Petitioner must therefore present these claims to the state court before seeking federal habeas review.
Except for the ineffective assistance of counsel claim, any other claim relating to the voluntary and knowing nature of petitioner's guilty plea is barred given that the grounds for any such claim are demonstrable from the record.
C. The Zarvela Rule
Because the time that a habeas petition is pending in federal court is not exempted from the one-year limitations period found in 28 U.S.C. § 2244(d)(2), an outright dismissal without prejudice would be a death knell to petitioner's habeas claims given the applicable one-year statute of limitations. When a petition is "mixed," i.e. contains both exhausted and unexhausted claims, the Second Circuit has directed that the proper course is to stay the exhausted claims, dismiss the unexhausted claims, and allow the petitioner to amend his petition once the claims have been exhausted in the state court. See Zarvela, 254 F.3d at 380 (directing that a stay is the only appropriate course where an outright dismissal "`could jeopardize the timeliness of a collateral attack'") (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000); Aparicio, 269 F.3d at 91 n. 5.
See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that a federal habeas petition is not an application for "State post-conviction or other collateral review" within the meaning of section 2244(d)(2) and thus does not toll the limitations period) (cited in Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.), cert. denied sub nom. Fischer v. Zarvela, 534 U.S. 1015 (2001)). See also Palmer v. Carlton, 276 F.3d 777, 779-80 (6th Cir. 2002) (noting that the re-filing of a habeas petition initially filed on the last day of the one-year limitations period would be untimely as the limitations period had expired on the date of the initial filing).
The Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA") imposed a one-year statute of limitations for habeas petitions brought under section 2254. Specifically, the AEDPA provides:
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1).
Although petitioner's speedy trial claim is exhausted, the First Department may have decided the claim on an independent and adequate state law ground ( i.e., failure to provide minutes of adjournment dates) thereby precluding federal habeas review absent a showing of cause and prejudice or a fundamental miscarriage of justice. Although ineffective assistance of counsel can represent cause for a procedural default, "the exhaustion doctrine . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Therefore, whether petitioner's speedy trial claim will be subject to habeas review will be addressed after petitioner has exhausted all of his claims in the state court.
Following the directive of the Second Circuit, all proceedings on the instant petition are stayed subject to the following conditions: (1) that petitioner file a motion to vacate his judgment of conviction pursuant to section 440.10 within thirty days of the date of this Order; and (2) that petitioner return to this Court to renew his petition within thirty days after the state court has either reviewed his claims or decided that his claims are not reviewable under section 440.10(2)(c) If either condition is not met, this Court will vacate the stay nunc pro tunc as of the date of this Order and the petition may be dismissed in its entirety. See Zarvela, 254 F.3d at 381. The Clerk of the Court is directed to close this motion and place the case on the suspense docket until further notice.
SO ORDERED: