Opinion
00 Civ. 3302 (HB)(FM)
May 16, 2002
REPORT AND RECOMMENDATION
I. Introduction
In this habeas corpus proceeding pursuant to 28 U.S.C. § 2254, pro se petitioner Juan Delvalle ("Delvalle") challenges his conviction, after a jury trial, on one count of Criminal Sale of a Controlled Substance in the Third Degree, in violation of N.Y. Penal Law § 220.39. Delvalle claims that he was denied his constitutional right to a speedy trial and that the sentence imposed is excessive. For the reasons set forth below, I recommend that Delvalle's Petition ("Petition" or "Pet.") be denied.
Since a trial transcript was not provided to the Court, the facts are taken primarily from Delvalle's brief on his appeal to the Appellate Division, which is appended to the Affidavit of Dian Kerr McCullough, sworn to Jan. 19, 2001, as Exhibit A. Certain additional undisputed facts are taken from the People's appellate brief, which is annexed to that Affidavit as Exhibit B.
A. Relevant Facts
Delvalle's conviction arises out of a New York City Police Department "buy and bust" operation. (Pet'r's App. Br. at 3, 8). On February 8, 1995, a man later identified as Larry Saunders led an undercover police officer to a bodega in the Bronx. (Id. at 9). There, Saunders directed co-defendant Luis Nunez to give the undercover officer a glassine envelope containing heroin. (Id.). After being signaled by Nunez, Delvalle, who was also in the store, handed an envelope to Saunders, who, in turn, gave it to the undercover officer in exchange for ten dollars. (Id.). When Delvalle subsequently was arrested, he was in possession of a glassine envelope similar to the one sold to the undercover officer, but he did not have any of the undercover's pre-recorded buy money. (Id. at 8).
A felony complaint was filed against Delvalle the following day. (Id. at 12). Thereafter, on March 27, 1995, a grand jury sitting in New York County returned an indictment charging Delvalle with Criminal Possession of a Controlled Substance in the Third Degree, Criminal Sale of a Controlled Substance in the Third Degree, and Conspiracy in the Second Degree. (See id. at 3, 8; Resp't's Mem. at 3). Delvalle was arraigned on the indictment on April 6, 1995, at which time the case was adjourned to May 24, 1995 to allow time for the parties to submit motions. (Pet'r's App. Br. at 3).
The investigation evidently was transferred to New York County because the bodega was the subject of a broader investigation there. (Resp't's App. Br. at 2).
Nunez and others were also named as defendants in the indictment. (Resp't's App. Br. at 3).
Between May 24, 1995 and November 22, 1995, the case was adjourned eight additional times for various reasons related to the submission of motion papers and the state court's decision on those motions. (Id. at 3-4). On November 22, 1995, the case was adjourned to December 5, 1995, because the prosecutor was not ready to proceed. On December 5th, however, the prosecutor indicated an unwillingness to proceed while plea negotiations with Delvalle's co-defendants were in progress. (Id. at 4). Over the objection of Delvalle's counsel, the case was adjourned to January 3, 1996, at which time, despite the lack of any dispositions of the co-defendants' cases, the prosecutor again was unwilling to proceed. (Id. at 4). Between January 3, 1996 and March 26, 1996, the prosecutor continued to request numerous adjournments because he was not ready to proceed. (Id. at 4-5).
On March 26, 1996, Delvalle moved to dismiss the indictment pursuant to N.Y. Crim. Proc. Law § 30.30 because the prosecution allegedly had failed to proceed to trial within the statutorily-mandated 180 days. (Id. at 5). In its responsive papers, the prosecution conceded that it was responsible for 109 days of delay. (Id.). On April 12, 1996, Justice John A. K. Bradley denied that motion, finding that only 122 days were properly chargeable against the speedy trial clock. (Id.). Although he denied the motion, Justice Bradley released Delvalle from custody pending trial pursuant to N.Y. Crim P. Law § 30.30(2). (Id. at 6).
On appeal, Delvalle and the prosecution agreed that Justice Bradley's calculation was incorrect and that there were actually 122 days attributable to the delays charged against the People by the court. (See Pet'r's App. Br. at 5-6 n. 2; Resp't's App. Br. at 15 n. 16).
On April 15, 1996, although the prosecution indicated that it was "ready" for hearings and trial, it became apparent at a suppression hearing that this was not correct. Accordingly, the court granted a one-day continuance to April 16, 1995. (Id.).
At that time, the prosecutor requested and was granted an adjournment to May 16, 2002. (Id.). Between May 16, 1996 and June 18, 1996, the case was adjourned three more times: once because the prosecutor sought time to respond to a motion filed by Delvalle, once because the prosecutor was not ready to proceed, and on the last occasion on consent. (Id. 6-7). On June 18, 1996, some sixteen months after his arrest, Delvalle filed a second motion to dismiss the indictment under the New York speedy trial statute, which Justice Bruce Allen denied on July 3, 1996, finding only 155 includable days. (Id. at 7).
Delvalle claims that this calculation incorporated the mathematical errors made in connection with the decision on his first motion to dismiss the indictment and that the actual number of includable days was 159. (Pet'r's App. Br. at 7). The prosecution evidently conceded on appeal that it was chargeable with this quantum of delay. (See Resp't's App. Br. at 18).
B. Procedural History
On September 15, 1996, after a hearing, Justice Arlene Silverman dismissed the conspiracy charge against Delvalle. (Id. at 8). Delvalle's trial commenced the following day before the Honorable George B. Daniels, then a Justice of the New York Supreme Court and now a member of this Court. (See id. at 8-9; Resp't's Mem. at 3 n. 2). On September 19, 1996, the jury convicted Delvalle of Criminal Sale of a Controlled Substance in the Third Degree; on October 3, 1996, he was sentenced, as a second felony offender, to an indeterminate term of imprisonment of eight to sixteen years. (Pet. ¶¶ 2, 3; Pet'r's App. Br. at 9, 11; Resp't's App. Br. at 1).
Neither Delvalle's appellate brief nor his Petition indicate the reasons for the nearly three-month delay between the denial of his second speedy trial motion and the commencement of his trial.
Delvalle appealed his conviction to the Appellate Division, First Department, contending that his right to a speedy trial under N.Y. Crim Proc. Law § 30.30 was violated and that the trial court had imposed an excessive and unduly harsh sentence. (Pet'r's App. Br. at 2). With respect to the speedy trial issue, Delvalle argued that the periods from December 5, 1995, through January 3, 1996, and January 3 through 30, 1996 were chargeable against the prosecution because it had answered "not ready for trial." (Pet'r's App. Br. 22, 25). On October 7, 1999, the Appellate Division unanimously affirmed the judgment of conviction. People v. Delvalle, 265 A.D.2d 174, 696 N.Y.S.2d 432 (1st Dep't 1999). With respect to the speedy trial issue, the court held as follows:
The period between December 5, 1995 and January 3, 1996 was properly excluded because the purpose of the adjournment, granted with the codefendants' consent, was to conduct plea negotiations with the codefendants. The period between January 3, 1996 and January 30, 1996 was also properly excluded, in that the People were entitled to a reasonable time to prepare for trial in light of the unsuccessful efforts to enter into a plea agreement with the codefendants and the fact that the case had been adjourned to January 3 for dispositional purposes rather than trial.
Id. 165 A.D.2d at 275, 696 N.Y.S.2d at 432 (citations omitted). Delvalle subsequently sought leave to appeal to the New York Court of Appeals, which denied his application, without opinion, on January 25, 2000. People v. Delvalle, 94 N.Y.2d 879, 705 N.Y.S.2d 11 (2000).
On or about April 21, 2000, Delvalle's petition for a writ of habeas corpus was received by the Pro Se Office of this Court. Liberally construed, Delvalle's Petition contends that his Sixth Amendment right to a speedy trial was violated and that the trial court imposed an "unduly harsh and excessive sentence." (Pet. ¶ 12(A)).
III. Discussion
A. Speedy Trial Claim
1. Exhaustion
A court may not grant a writ of habeas corpus to a person in state custody unless it appears that the applicant has exhausted all available state court remedies, there is an absence of state corrective process, or circumstances render that process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(A), (B). To satisfy the statutory exhaustion requirement, a petitioner must show that he presented "the substance of the same federal constitutional claim that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (internal quotations and citations omitted). In order to meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba; rather, there are a number of ways in which the claim may be presented, including
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.
Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 194 (2d Cir. 1982).
In his direct appeal in state court, Delvalle asserted a speedy trial claim citing N.Y. Crim. Proc. Law § 30.30, but making no mention whatsoever of the United States Constitution. It is well settled that a petitioner who raises only a statutory speedy trial claim pursuant to N.Y. Crim. Proc. Law § 30.30 has not invoked the federal constitution and therefore has not exhausted a federal claim. See Gonzalez v. Garvin, No. 99 Civ. 11062, 2002 WL 655164, at *2 (S.D.N.Y. Apr. 22, 2002) (Scheindlin, J.) (asserting a statutory claim under Section 30.30 does not invoke a specific constitutional right); Rodriguez v. Miller, No. 96 Civ. 4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (Baer, J.) (a Section 30.30 claim "has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition"); Gibriano v. Attorney Gen. of N.Y., 965 F. Supp. 489, 491-92 (S.D.N.Y. 1997) (Sprizzo, J.) (petitioner who raised only Section 30.30 claim in state court did not present federal speedy trial claim to state court). Thus, Delvalle's speedy trial claim is unexhausted.
Although Delvalle's point heading in his appellate brief refers to a violation of a "constitutional right," the text of his speedy trial argument relies exclusively on state authority. (See Pet'r's App. Br. at 12-29). It also is unclear whether Delvalle's fleeting reference was to the United States or the New York State Constitution. Even if it were construed as referring to a federal constitutional right, it is settled law that this mere mention of the right is not sufficient to exhaust it for federal habeas purposes. See, e.g., Cruz v. Greiner, No. 98 Civ. 7939, 1999 WL 1043961, at *21 (S.D.N.Y. Nov. 17, 1999) (Peck, Mag. J.) (petitioner's speedy trial claim unexhausted when only reference to federal constitution appeared in point heading). Cf. Adelson v. Dipaola, 131 F.3d 259, 262-63 (1st Cir. 1997) ("the mere incantation of constitutional buzzwords, unaccompanied by any federal constitutional analysis, does not suffice to carry the burden of demonstrating fair presentment of the federal claim"); Lugo v. Kuhlman, 68 F. Supp.2d 347, 361-62 (S.D.N.Y. 1999) (Patterson, J., adopting Report Recommendation of Peck, Mag. J.) (failure to mention a specific provision of United States Constitution rendered claim unexhausted).
2. Procedural Default
A federal habeas court may treat an unexhausted claim as exhausted when it is clear that it is "procedurally barred by state law and, as such, its presentation in the state forum would be futile." Aparicio, 269 F.3d at 90. Accord Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997). In that circumstance, however, because the state forum would treat the claim as procedurally barred, the federal habeas court must also deem the claim procedurally defaulted. Aparicio, 269 F.3d at 90 (citing Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991)). Consequently, federal habeas review is precluded unless the petitioner can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law" or "that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. at 2565. Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). To make the latter showing, a petitioner must show that he is "actually innocent." Aparicio, 269 F.3d at 90.
Pursuant to N.Y. Crim. Proc. Law § 440.10(2)(c), a prisoner who has prosecuted a direct appeal may not subsequently seek collateral review of an issue that could have been raised on appeal but was not. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Accordingly, because it was not fairly presented to the State courts, Delvalle's federal speedy trial claim has been procedurally defaulted. Moreover, Delvalle has not shown either "cause and prejudice" or "actual innocence," nor is there any reason to believe that either of these required showings could be made. This Court is therefore barred from entertaining Delvalle's speedy trial claim. Coleman, 501 U.S. at 748-50, 111 S.Ct. at 2563-65; Aparicio, 269 F.3d at 90.
3. Merits
Even if Delvalle's constitutional speedy trial claim had been properly exhausted, it would still fail. There is no bright line rule which indicates when a petitioner's Sixth Amendment right to a speedy trial has been violated. Rather, the United States Supreme Court has held that courts must approach such claims on an ad hoc basis and apply a balancing test comprised of four factors: (i) the length of the delay; (ii) the reason for the delay; (iii) the defendant's assertion of his right; and (iv) the prejudice to the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Accord Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988); Rodriguez, 1997 WL 599388, at *2. No individual factor is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Barker, 407 U.S. at 533, 92 S.Ct. at 2193. The factors are "related . . . and must be considered together with such other circumstances as may be relevant." Id.
Turning first to the length of the delay, there is no need to weigh the Barker factors unless Delvalle is able to show the existence of "some delay which is presumptively prejudicial." Id., 407 U.S. at 530, 92 S.Ct. at 2192. Accord Rayborn, 858 F.2d at 89; Steed v. N.Y. Exec. Dep't Div. of Parole, No. 00 Civ. 2293, 2000 WL 1593342, at *5 (S.D.N.Y. Oct. 25, 2000) (Scheindlin, J.). In this case, approximately nineteen months elapsed between the time of Delvalle's arrest and the beginning of his trial. (See Pet'r's App. Br. at 3, 8; Resp't's Mem. at 3). The Second Circuit has declined to find a Sixth Amendment speedy trial violation in cases where the delay was far longer. See, e.g., United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (26 months); Montalvo v. United States, 862 F.2d 425, 426 (2d Cir. 1988) (eight years); Rayborn, 858 F.2d at 89 (over seven years); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (24 months). As the Supreme Court has noted, however, "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Barker, 407 U.S. at 531, 92 S.Ct. at 2192. Here, it is difficult to conceive of a criminal case less complicated than the one-buy drug case that eventually was tried. Accordingly, this factor weighs in Delvalle's favor.
The mere fact that the delay was considerable does not mean that it was unreasonable. Of course, "[a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. [However, a] more neutral reason such as negligence or overcrowded courts should be weighted less heavily." Barker, 407 U.S. at 531, 92 S.Ct. at 2192. In this case, Delvalle contends that the prosecution was responsible for 216 days, or approximately seven of the nineteen months, of the trial delay. (Pet'r's App. Br. at 16). Although, Delvalle does not suggest that these delays were the result of prosecutorial bad faith, the prosecutor's repeated lack of readiness for trial suggests that this second factor weighs somewhat in Delvalle's favor.
The third Barker factor — the responsibility of the petitioner to assert his right — also weighs in favor of Delvalle because he twice asked the trial court to dismiss the indictment on speedy trial grounds. (See id. at 5, 7).
Here, however, the fourth factor — prejudice — outweighs all of the others and tips the scales overwhelmingly against Delvalle. A court considering the prejudice to a defendant in connection with a speedy trial claim should consider: (i) whether the pretrial incarceration was oppressive; (ii) whether a speedier trial would have minimized the "anxiety and concern of the accused;" and (iii) whether the defense was impaired by the delay. Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Delvalle's papers both here and in state court are utterly devoid of any indication that he was prejudiced by the delay.
Among other things, he does not claim that his incarceration prior to his release on bail was oppressive, nor does he indicate that witnesses were unable to testify or had a loss of memory as a result of the delay.
In sum, Delvalle has not demonstrated that the nineteen-month delay between his arrest and his trial violated his Sixth Amendment right to a speedy trial. As a consequence, even if this Court were to reach the merits, Delvalle's speedy trial claim would have to be dismissed.
B. Excessive Sentence Claim
Delvalle's only other contention, liberally construed, is that his eight-to-sixteen year sentence is excessive and violates his Eighth Amendment rights. This claim was presented as an appeal to the state court's discretion rather than a constitutional claim and is therefore unexhausted and procedurally barred. In any event, as a predicate felony offender, Delvalle could have been sentenced to a maximum indeterminate term of nine to twenty-five years in jail. See N.Y. Penal Law §§ 70.06(3)(b), 220.39. Since the sentence actually imposed is below the statutory maximum, Delvalle's excessive sentence claim is not cognizable in this Court. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (no federal constitutional issue arises when sentence imposed is authorized by state statute); Robles v. Senkowski, No. 97 Civ. 2798, 2002 WL 441153, at *10 (S.D.N Y Mar. 21, 2002) (Cedarbaum, J.) (citing White).
IV. Conclusion
For the foregoing reasons, the relief requested by Delvalle should be denied and his Petition dismissed. Furthermore, because Delvalle has not made the substantial showing of the denial of a constitutional right required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have objections to this Report and Recommendation, they must, within ten days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Harold Baer, Jr., and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, N Y 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Baer. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).