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applying 28 U.S.C. § 2254(d) to state trial court's decision not to give justification charge
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00 Civ. 0926 (RMB) (AJP)
August 8, 2000
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge:
Pro se petitioner Curtis Holden seeks a writ of habeas corpus from his conviction in Supreme Court, Bronx County, of first degree assault and third degree criminal sale of a controlled substance, for which he was sentenced to consecutive terms of seven and one half to fifteen years and five to ten years imprisonment, respectively. (Dkt. No. 1: Pet. ¶¶ 1-4.) Holden alleges that: (1) he was denied the right to a speedy trial (Pet. ¶ 12(A)), and (2) the trial court erred in refusing to charge the jury with the defense of justification (Pet. ¶ 12(B)).
For the reasons set forth below, the Court should deny Holden's petition.
FACTS Holden's Grand Jury Indictment and Speedy Trial Motion
Holden was indicted by a Bronx Grand Jury on September 4, 1992. (Indictment.) On December 9, 1993, Holden's counsel moved to dismiss the indictment on speedy trial grounds pursuant to N.Y. CPL § 30.30, claiming that "the People have not been ready for a period will [sic] in excess of six months." (12/9/93 Motion, Gale Aff. ¶ 9.) After a hearing and decision, a motion to reargue and a further speedy trial hearing, the court ultimately ruled, on February 15, 1995, that 175 days were chargeable to the prosecution and denied Holden's motion to dismiss. (2/15/95 Massaro Opinion.)
References are to portions of the Record on Appeal to the First Department, provided to this Court by the State.
The Trial Evidence The Prosecution Case
On August 14, 1992, Detective Selwart Clarke, working undercover on a buy and bust operation, went to 4673 Park Avenue, Apt. 2N, in the Bronx and gave Curtis Holden twenty dollars of pre-recorded buy money in exchange for "two slabs" of cocaine. (Clarke: Trial Transcript ("Tr.") 42-44, 48-49, 51-53, 70-73, 82-84, 95.) Holden claimed that he was doing odd jobs at that apartment, which he admits was known as a "drug spot." (Holden: Tr. 814-18.) Holden did not live in that apartment. (Capra: Tr. 480; Holden: Tr. 798-801, 841-42.) As Detective Clarke left the building, he signaled to back-up team Detectives Edward Thompson and Domenick Laperuta, both dressed in plain clothes, that the sale was complete. (Clarke: Tr. 46, 53-54; Thompson: Tr. 580-811, 583, 587, 607; Laperuta: Tr. 123-24, 132, 136, 177, 179, 181-82.)
Detectives Thompson and Laperuta entered the building and Detective Laperuta knocked on the door of Apartment 2N. (Laperuta: Tr. 139, 182-85, 187; Thompson: Tr. 583-84, 588, 599.) Detective Laperuta did not identify himself as a police officer and his gun was not drawn when he knocked on the door. (Laperuta: Tr. 139, 148, 184-85, 193; Thompson: Tr. 593.) Detective Thompson was standing to the side of the door and could not be seen by Holden. (Laperuta: Tr. 141, 184A; Thompson: Tr. 583-84, 588, 599.) Detective Laperuta testified that when Holden answered the door, Holden was hiding a gun behind his leg. (Laperuta: Tr. 140-41, 163, 186-88.) Detective Laperuta testified that he asked to buy a "slab" and gave Holden ten dollars. (Laperuta: Tr. 140-41, 186-88.) After leaving to "get it," Holden returned the money to Detective Laperuta. (Laperuta: Tr. 140-41, 193-94.) Detective Laperuta then "jumped" Holden and tried to wrestle the gun from his hand and arrest him. (Laperuta: Tr. 142, 168-69, 190-91, 193-95; Thompson: Tr. 584, 590-91, 593, 601, 609.) During the struggle, Detective Laperuta identified himself as a police officer. (Laperuta: Tr. 142, 169; Thompson: Tr. 591, 597-98.)
There is conflicting testimony as to what happened next and who fired his gun first. According to the police testimony: Holden escaped from Detective Laperuta's grip, backed away and fired his gun. (Laperuta: Tr. 142, 155, 195-97, 239; Thompson: Tr. 584, 591-92, 597-98.) Detective Laperuta pulled out his gun, returned fire with two shots, and Holden ran further into the apartment and fired two or three further shots. (Laperuta: Tr. 142, 156-58, 160-62, 193, 195, 197-98, 200, 202, 207, 209, 218, 220, 232, 239, 241; Thompson Tr. 584-86, 593-94, 603.)
As other officers arrived on the scene, Holden escaped out a window and onto a fire escape, heading towards the roof. (Capra: Tr. 488; Zerbo: Tr. 524-25, 539-40; Cordero: Tr. 644-46, 648-49; Hughes: Tr. 724.) Holden was arrested inside a nearby apartment. (Powell: Tr. 267-68.) Holden had the $20 in prerecorded buy money on him when he was arrested. (Capra: Tr. 481, 505.)
Detective Laperuta was shot in the thigh (which forced his retirement from the police department), and Holden suffered gun shot wounds to the leg and foot. (Laperuta: Tr. 143, 170, 174, 197, 209, 212, 224-25, 234; Tota: Tr. 463; Kreuxzer: Tr. 678; Martinez: Tr. 735; Holden: Tr. 835, 842.)
The Defense Case
Holden testified at trial that a man who looked like a junkie, later identified as Detective Laperuta, knocked on the door of Apartment 2N, where Holden was doing maintenance work, and offered Holden twenty dollars for drugs. (Holden: Tr. 801-02, 824-25, 830.) Holden told Laperuta that he did not sell drugs but Laperuta refused to leave. (Holden: Tr. 801-02, 807, 830.) Laperuta wedged his foot in the door and Holden was unable to close it. (Holden: Tr, 802, 824, 830-31, 839.) Holden testified that he saw "shadows" in the hallway, which made him nervous, so he retreated further into the apartment. (Holden: Tr. 801-03, 811, 830-31.) Laperuta pushed into the apartment. (Holden: Tr. 802, 824.) Holden panicked and picked up a loaded pistol that was in the apartment. (Holden: Tr. 802-03, 831.) Holden knew the gun was loaded because he knew the apartment was a drug dealer's "drug spot." (Holden: Tr. 816-18, 831-32.) Finally, according to Holden, when he peeked into the apartment's hallway to see who was there, Laperuta shot at him first. (Holden: Tr. 803-04, 833.) Holden claimed that he did not know that the men were police officers because they never identified themselves. (Holden: Tr. 803-05.) Holden testified that he fired back because they shot at him first. (Holden: Tr. 804, 833.) He said that he fired several shots in the direction of the floor, near the front door, "to keep them off," that is, "to warn them off, to keep them far from" him, and then tried to escape through the window to the fire escape. (Holden: Tr. 804, 808, 814, 815, 833-36, 847.) Holden claimed that he never sells drugs and that the police planted the prerecorded buy money in his pants pockets while he was given medical treatment. (Holden: Tr. 807, 810, 813-14, 851.)
The Trial Court's Denial of a Justification Defense Charge
Prior to summation, the defense requested a justification charge (Tr. 869), which the trial judge declined to give (Tr. 870), explaining:
On the issue of request for a justification charge, this Court declines to so charge. I have now read the entire transcript given by the defendant on that issue and what he says happened at the door.
There is a suggestion of self-defense raised, but in my opinion not sufficient to warrant a charge of justification.
The standard is, as I understand it, is that there is to be an assertion of self defense and, and I am underlining the word and, an offer of some evidence that the defendant was acting in self-defense; The two together and not an either or, or/or [sic] situation.
On the facts of this case, at the time the defendant went for a weapon there is no evidence that there was a threat or any evidence of use of physical force that would justify his — the defendant's — going for a gun.
(Tr. 870-71.)
Verdict and Sentence
On April 21, 1995, the jury found Holden not guilty of first and second degree attempted murder, but found him guilty of first degree assault and third degree criminal sale of a controlled substance. (Tr. 1020-25.) On June 5, 1995, the trial court sentenced Holden, as a second violent felony offender, to consecutive terms of seven and one half to fifteen years and five to ten years imprisonment, respectively. (6/5/95 Sentencing Tr. 2-3, 23.)
Holden's Direct Appeal
Represented by counsel, Holden appealed to the First Department, arguing that: (1) he was denied his right to a speedy trial, citing in his point heading and introduction the Sixth and Fourteenth Amendments, but relying in the brief on N.Y. CPL § 30.30 and State cases under CPL § 30.30. (Ex. 1: Holden 1st Dep't Br. at 29-47; Ex. 3: Holden 1st Dep't Reply Br. at 1-5); and (2) the trial court erroneously denied his request to charge the jury with the defense of justification, citing in his point heading and introduction the Fourteenth Amendment, but relying on State case law. (Ex. 1: Holden 1st Dep't Br. at 48-53; Ex. 3: Holden 1st Dep't Reply Br. at 6-9.)
References to Exhibits are to the exhibits to the May 16, 2000 affidavit of Assistant District Attorney Lisa I. Cuevas.
On April 15, 1999, the First Department unanimously affirmed Holden's conviction. People v. Holden, 260 A.D.2d 233, 689 N.Y.S.2d 40 (1st Dep't 1999). With respect to the justification defense issue, the First Department held:
The court properly refused defendant's request to charge the justification defense since it was not supported by any reasonable view of the evidence, even when defendant's testimony is viewed in its most favorable light. Under such a view, even if defendant's claim that the first shot was fired by the victim (a police officer participating in an undercover drug operation) could be credited, defendant nevertheless precipitated the gunfight by arming himself and displaying a firearm before he had any reason to believe that his victim was about to use deadly force against him. Moreover, according to defendant's testimony, he had an opportunity to retreat but instead chose to approach his victim.
Id. at 234, 589 N.Y.S.2d at 40-41 (citations omitted).
As to the speedy trial claim, the First Department addressed it solely in terms of CPL § 30.30, as follows:
[W]e find that two time periods are dispositive. We reject defendant's argument that the period from October 28 to December 15, 1992 was includable on the grounds that the People's statement of readiness was illusory and that the People unreasonably delayed their response to discovery demands. The People declared their present readiness for trial on October 14th and there was nothing illusory about such statement of readiness. We further find that the discovery delay did not affect the People's readiness and was not unreasonable in any event.
The period of December 18, 1993 to February 15, 1994, the time during which the People were responding to defendant's first speedy trial motion, was excludable. The time set forth in CPLR 2214(b) for answering a motion was not applicable. The record reveals that the delay resulted from the unavailability of minutes to be furnished by the court reporters, who were not under the People's control. In any event, even if we were to find that the delay in responding to the motion was inadequately explained, we would find the delay was not so unreasonable as to require that any of the time be included.
When the aforesaid time periods are subtracted from the total amount of time that defendant claims to be includable, the remainder falls short of the 184 days in which the People were required to be ready. Therefore, we need not consider any other periods claimed by defendant to be includable.
Id. at 234-35, 689 N.Y.S.2d at 41 (citations omitted).
Represented by the Legal Aid Society, Holden sought leave to appeal to the New York Court of Appeals, requesting the Court "to consider and review all issues outlined in defendant-appellant's brief" to the First Department. (Ex. 5:5/12/99 Leave to Appeal Letter.) Holden's counsel supplemented his leave application with a letter that focused on his claim that the trial court erred in refusing to charge the jury with the justification defense. (Ex. 5:6/3/99 Leave to Appeal Letter at 1-3.) In a single sentence, the supplemental letter also urged the Court of Appeals to address the speedy trial issue. (Id. at p. 3.) On July 1, 1999, the New York Court of Appeals denied leave to appeal. People v. Holden, 93 N.Y.2d 1003, 695 N.Y.S.2d 749 (1999).
Holden's Current Federal Habeas Petition
Holden's current pro se federal habeas petition is dated January 2, 2000 (Pet. at 7), and claims that: (1) Holden was denied his right to a speedy trial, pursuant to the Sixth and Fourteenth Amendments (Pet. ¶ 12(A)); and (2) the trial court erred in refusing to give a justification charge, denying him his rights under the Fourteenth Amendment (Pet. ¶ 12(B)).
ANALYSIS I. HOLDEN'S SPEEDY TRIAL CLAIM SHOULD BE DENIED A. Holden's Speedy Trial Claim is Not Exhausted Because It Was Not Fairly Presented to the State Court in Federal Constitutional TermsHolden has not exhausted his state remedies with respect to his speedy trial claim; mere reference to the Sixth Amendment in the point heading of his First Department Brief, but without any federal constitutional argument, and with the only argument being under CPL § 30.30, was insufficient to fairly apprise the state courts of a federal speedy trial claim.
Section 2254 codifies the exhaustion requirement, providing that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to a 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. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948 . . . in 28 U.S.C. § 2254. "); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Daye v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203.
Accord, e.g., Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *2 (S.D.N.Y. July 5, 2000) (Pauley, D.J. Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 (S.D.N Y June 6, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 97 Civ. 2958, 2000 WL 194677 at *2 n. 2 (S.D.N.Y. Feb. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 361 (S.D.N.Y. Oct. 7, 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N Y 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground and rev'd on other grounds, 206 F.3d 196 (2d Cir. 2000).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-45, 119 S.Ct. at 1732; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *24; Thomas v. Greiner, 2000 WL 194677 at *3; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 361.
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.
Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845-48, 119 S.Ct. at 1732-34; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *24; Foreman v. Garvin, 2000 WL 631397 at *7 n. 9; Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Jordan v. LeFevre, 22 F. Supp.2d at 266; Boyd v. Hawk, 94 Civ. 7121, 1996 WL 406680 at *3 (S.D.N.Y. May 31, 1996) (Batts, D.J. Peck, M.J.); Ehinger v. Miller, 928 F. Supp. 291, 293 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.).
"The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General of New York, 696 F.2d at 191. The Second Circuit has held that a federal habeas petitioner must have alerted the state appellate court that a federal constitutional claim is at issue. E.g., Jones v. Vacco, 126 F.3d at 413-14; Grady v. LeFevre, 846 F.2d 862, 864 (2d Cir. 1988); Petrucelli v. Coombe, 735 F.2d 684, 688-89 (2d Cir. 1984); Daye v. Attorney General, 696 F.2d at 191. In Daye, the Second Circuit en banc stated:
Accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732; Picard v. Connor, 404 U.S. at 275-76, 92 S.Ct. at 512; Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997); Cruz v. Greiner, 1999 WL 1043961 at *19; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
See also, e.g., Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Diaz v. Coombe, 1997 WL 529608 at *3.
[T]he ways in which a state defendant may fairly present to the state courts the constitutional nature of his claim, even without citing chapter and verse of the Constitution, include (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 General, 696 F.2d at 194.
Accord, e.g., Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 124 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); Grady v. LeFevre, 846 F.2d at 864; Garofolo v. Coombe, 804 F.2d 201, 206 (2d Cir. 1986); Petrucelli v. Coombe, 735 F.2d at 688; Mendez v. Artuz, 2000 WL 722613 at *24 n. 15; Cruz v. Greiner, 1999 WL 1043961 at *20; Lugo v. Kuhlmann, 68 F. Supp.2d at 361; Jordan v. LeFevre, 22 F. Supp.2d at 266; Diaz v. Coombe, 1997 WL 529608 at *3; Washington v. Superintendent, Otisville Correctional Facility, 96 Civ. 2729, 1997 WL 178616 at *3-4 (S.D.N.Y. April 11, 1997); Boyd v. Hawk, 1996 WL 406680 at *3; Connolly v. Artuz, No. 93 CV 4470, 1995 WL 561343 at *2 (E.D.N.Y. Sept. 15, 1995); Saunders v. Riley, 90 Civ. 4738, 1991 WL 95352 at *5 (S.D.N.Y. May 30, 1991).
Here, Holden's brief to the First Department — written by counsel — referred to the Sixth and Fourteenth Amendments in the point heading and an introductory paragraph to the speedy trial section. (Ex. 1: Holden 1st Dep't Br. at 29, 30.) The entire nineteen pages of argument, however, dealt only with state statutory speedy trial issues under CPL § 30.30, and employed only state cases and state law analysis. (Id. at 30-47.) The vague reference to the Sixth and Fourteenth Amendments, without appropriate argument, and with lengthy argument under the different state statutory speedy trial right of CPL § 30.30, is not sufficient to put the state appellate court on notice and to exhaust the federal claim. For example, in Jackson v. McClellan, 92 Civ. 7212, 1994 WL 75042 (S.D.N.Y. March 4, 1994), the Court denied a habeas speedy trial claim as unexhausted even though the petitioner, similar to here, had "vaguely alluded to the federal constitution in his point heading" in his state appellate brief. Id. at *2. Judge Keenan explained:
In petitioner's state appellate brief, he argued that he was denied his right to a speedy trial pursuant to N.Y. Crim. Proc. Law § 30.30. Petitioner cited only state cases in support of his claim. Petitioner merely vaguely alluded to the federal constitution in his point heading. . . . An examination of petitioner's state court brief reveals that he never referred to a federal constitutional issue. Rather, petitioner argued entirely in terms of New York statutory law and case law.
Jackson v. McClellan, 1994 WL 75042 at *2.
For cases holding that vague references to deprivation of "constitutional rights" or a "fair trial" or "due process" do not suffice to exhaust the claim in state court, see, e.g., Grady v. LeFevre, 846 F.2d at 864 (making one reference to "constitutional rights" in petitioner's brief is insufficient to provide adequate notice to the state courts to a confrontation clause issue); Petrucelli v. Coombe, 735 F.2d at 687 (asserting fair trial and due process claims in state courts do not exhaust a double jeopardy claim); Nieves v. Artuz, 97 Civ. 7792, 1999 WL 1489145 at *3 (S.D.N.Y. Oct 22, 1999); McCoy v. Walker, 99 Civ. 3926, 1999 WL 1191988 at *8 (S.D.N.Y. Dec. 14, 1999); Edmonds v. McGinnis, 11 F. Supp.2d 427, 432 (S.D.N.Y. 1998); Mendez v. Superintendent, Adirondack Correctional Facility, 94 Civ. 6500, 1996 WL 66117 at *2 (S.D.N.Y. Feb. 14, 1996) (asserting an unfair trial does not alert the state courts to a federal claim), aff'd mem., 104 F.3d 356 (2d Cir. 1996).
Of course, it is well-settled that raising CPL § 30.30 speedy trial claim does not fairly present the federal constitutional speedy trial claim to the state court:
"Section 30.30 is a statutory time frame in which the People of the State of New York must be ready for trial; Section 30.30 is not, as such, a statutory embodiment of the constitutional guarantee to a speedy trial. . . . By contrast, Criminal Procedure Law § 30.20 does embody the federal constitutional right to a speedy trial. . . . For this reason, when the petitioner twice raised his statutory 'speedy trial' claim in the state court under Section 30.30, he did not effectively present to those courts the federal constitutional speedy trial claim that he raises now in this court. . . ."
Gibriano v. Attorney Gen. of the State of New York, 965 F. Supp. 489, 491-92 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.) (quoting Woodard v. Berry, No. CV-90-1053, 1992 WL 106508 at *2 (E.D.N Y April 24, 1992)); accord, Cruz v. Greiner, 1999 WL 1043961 at *21; see also, e.g., McGowan v. Miller, 109 F.3d 1168, 1172-73 (7th Cir. 1997); Cox v. Lockhart, 970 F.2d 448, 453-54 (8th Cir. 1992); Frazier v. Czarnetsky, 439 F. Supp. 735, 736-37 (S.D.N Y 1997); Rodriguez v. Miller, 96 Civ. 4723, 1997 WL 599388 at *2 (S.D.N.Y. Sept. 29, 1997) ("[A] CPL § 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition."); Jackson v. McClellan, 1994 WL 75042 at *2 ("merely vaguely allud[ing] to the federal constitution in his point heading" while arguing CPL § 30.30 speedy trial claim did not fairly present a federal constitutional speedy trial claim to the state court).
The state speedy trial right under CPL § 30.30 is distinct from federal speedy trial and involves a different factual and legal analysis. See, e.g., Rodriguez v. Miller, 1997 WL 599388 at *2; Gibriano v. Attorney Gen., 965 F. Supp. at 491-92. Accordingly, a throw-away reference to the federal constitution (or even specifically to the Sixth Amendment), during a state law CPL § 30.30 analysis, is not sufficient to put the state court on fair notice of the federal claim, and hence is not sufficient to exhaust the federal speedy trial claim.
The Court is aware that a second line of cases, holds that a minimum reference to the Fourteenth Amendment in a petitioner's state appellate brief satisfies the exhaustion requirement, but that line of cases has only been applied in the context of a "due process" or "fair trial" argument, not in the context of a speedy trial claim. See, e.g., Holland v. Scully, 797 F.2d 57, 65 (2d Cir.) (where arguments in "brief should have called to mind fundamental due process principles," federal claim was sufficiently raised in state court as to be exhausted), cert. denied, 479 U.S. 870, 107 S.Ct. 237 (1986); Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) ("Although we have indicated that 'we think it would be better practice for counsel when relying on a broad constitutional doctrine like the Fourteenth Amendment to support the claim with a factual premise and by citation to federal cases,' a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement" as to a sufficiency of the evidence claim); Gonzales v. Sullivan, 934 F.2d 419, 423 (2d Cir. 1991) (same); Hawkins v. West, 706 F.2d 437, 438-39 (2d Cir. 1983) (argument that evidence was not sufficient to prove guilt beyond a reasonable doubt fairly presented federal constitutional claims to state court for exhaustion purposes); Daye v. Attorney General, 696 F.2d at 192 ("A defendant may . . . fairly present the substance of a federal constitutional claim to the state court without citing 'book and verse of the federal constitution.'"). The Court has not found any decision that applies this line of cases to a "speedy trial" claim. If reference to CPL § 30.30 and speedy trial is not sufficient to fairly present the different federal speedy trial claim — and the case law cited above makes clear that that is so — passing reference to the Sixth Amendment should not change the result where, as here, the only argument in petitioner's state appellate brief is based entirely on the different state statutory CPL § 30.30 speedy trial claim.
See also, e.g., Fernandez v. Dufrain, 11 F. Supp.2d 407, 415 (S.D.N.Y. June 30, 1998) (Kaplan, D.J. Peck, M.J.) (sufficiency of the evidence argument in state appellate briefs that relief almost exclusively on state case law, but also conclusorily alleged that conviction violated the Fourteenth Amendment, was found to be exhausted); Sutton v. Herbert, 39 F. Supp.2d 335, 338 (S.D.N.Y. Feb. 10, 1999) (reference to "due process" and Fourteenth Amendment sufficient to exhaust claim of erroneous admission of hearsay evidence); Anderson v. Reynolds, 91 Civ. 2603, 1992 WL 47979 at *3-6 (S.D.N.Y. March 3, 1992) (citations to 14th Amend. and "fair trial" sufficient to exhaust claim re alleged erroneous admission of evidence); Middleton v. Miles, 88 Civ. 6099, 1989 WL 74420 at *3 (S.D.N.Y. June 27, 1989) ("fair trial" allegation sufficient to exhaust coerced verdict claim).
Holden thus did not fairly present his federal constitutional speedy trial claim to the state court. Therefore, Holden's federal constitutional speedy trial claim is not exhausted.
"'[F]or exhaustion purposes, "a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred."'" Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (quoting Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n. 9, 109 S.Ct. 1038, 1043 n. 9 (1989))). "In such a case, a petitioner no longer has 'remedies available in the courts of the State' within the meaning of 28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d at 120. Consequently, such procedurally barred claims are "deemed exhausted" by the federal courts. E.g., Reyes v. Keane, 118 F.3d at 139; Bossett v. Walker, 41 F.3d at 828; Washington v. James, 996 F.2d 1442, 1446-47 (2d Cir. 1993), cert. denied, 510 U.S. 1078, 114 S.Ct. 895 (1994); Grey v. Hoke, 933 F.2d at 120-21.
Accord, e.g., Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1059 (1989) ("It would be inconsistent with [§ 2254(b)], as well as with underlying principles of comity, to mandate recourse to state collateral review whose results have effectively been predetermined"); Bossett v. Walker, 41 F.3d at 828 ("[I]f the petitioner no longer has 'remedies available' in the state courts under 28 U.S.C. § 2254(b), we deem the claims exhausted."); Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Jordan v. LeFevre, 22 F. Supp.2d at 269; Redd v. Quinones, 98 Civ. 2604, 1998 WL 702334 at * 3 (S.D.N.Y. Oct. 7, 1998); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.).
Accord, e.g., Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 362; Camarano v. Irvin, 902 F. Supp. 358, 364 (S.D.N.Y. 1994), aff'd mem., 122 F.3d 1055 (2d Cir. 1995).
See also, e.g., Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann,68 F. Supp.2d at 362; Jordan v. LeFevre, 22 F. Supp.2d at 269; Redd v. Quinones, 1998 WL 702334 at *3.
It is clear that Holden is now barred from raising his federal constitutional speedy trial claim in state court because it could have been raised on direct appeal, but was not. As the Second Circuit explained in Washington v. James:
New York CPL § 440.10(2)(c) states, in pertinent part:
2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:
. . . .
(c) 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 . . . raise such ground or issue upon an appeal actually perfected by him. . . .
Consequently, we do not believe [petitioner] has fairly presented to the state courts his constitutional objection to the agency defense instruction. . . . [T]he state courts have not had an opportunity to address the federal claim raised on habeas review and this normally would preclude our review of that claim. . . .
. . . .
As we have already noted, this preclusion is not technically the result of a failure to exhaust state remedies, but is due to a procedural default. [Petitioner] no longer has the right to raise his claim under New York law either on direct appeal, see McKinney's 1993 Revised N.Y. Court Rules § 500.10(a), or on collateral review. New York's collateral procedures are unavailable because appellant could have raised the claim on direct review but did not. See N.Y. Crim. Proc. Law § 440.10(2)(c). Therefore, [Petitioner] has no further recourse in state court. See 28 U.S.C. § 2254(c); Grey v. Hoke, 933 F.2d [at] 120. . . .
Because he failed to raise his claim in state court and no longer may do so, his claim is procedurally defaulted.996 F.2d at 1446-47.
See also, e.g., Reyes v. Keane, 118 F.3d at 139 ("Section 440.10(2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record.") (emphasis added); Bossett v. Walker, 41 F.3d at 829; Foreman v. Garvin, 2000 WL 631397 at *9; Thomas v. Greiner, 2000 WL 194677 at *4; Cruz v. Greiner, 1999 WL 1043961 at *22; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Redd v. Quinones, 1998 WL 702334 at *3.
"[T]o avoid [such] a procedural default, a habeas petitioner must '"demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice,"' i.e., a showing of 'actual innocence.'" Cruz v. Greiner, 1999 WL 1043961 at *23. Holden has not attempted to show cause and prejudice or "actual innocence" on his speedy trial claim. That claim, therefore, should be denied as procedurally barred.
Accord, e.g., Perez v. Greiner, 2000 WL 915114 at *7; Mendez v. Artuz, 2000 WL 722613 at *26; Foreman v. Garvin, 2000 WL 631397 at *10 n. 12; Thomas v. Greiner, 2000 WL 194677 at *5; Lugo v. Kuhlmann, 68 F. Supp.2d at 363; Jordan v. LeFevre, 22 F. Supp.2d at 269; Gibriano v. Attorney General, 965 F. Supp. at 493 n. 5).
B. In Any Event, Holden's Federal Speedy Trial Claim Lacks Merit
If the Court were to conclude, contrary to the above recommendation, that Holden's federal speedy trial claim was "fairly presented' to the state court via the passing reference to the Sixth Amendment and thus is exhausted, his speedy trial claim should nevertheless be denied on the merits.
The Antiterrorism and Effective Death Penalty Act ("AEDPA") also permits the Court to deny on the merits habeas petitions containing unexhausted claims. See 28 U.S.C. § 2254 (b)(2) (1998). For a discussion of the appropriate standard for determining when to dismiss and when to decide the merits of a petition that contains unexhausted claims, see, e.g., Hernandez v. Lord, 00 Civ. 2306, 2000 WL 1010975 at *4-5 nn. 9-10 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (and cases cited therein).
It is black letter law that a defendant is guaranteed a speedy trial by the Sixth and Fourteenth Amendments to the Constitution. E.g., Barker v. Wingo, 407 U.S. 514, 515, 92 S.Ct. 2182, 2184 (1972). As the Supreme Court recognized, however:
The right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused. In addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused. . . .
A second difference between the right to speedy trial and the accused's other constitutional rights is that deprivation of the right may work to the accused's advantage. Delay is not an uncommon defense tactic. As the time between the commission of the crime and trial lengthens, witnesses may become unavailable or their memories may fade. If the witnesses support the prosecution, its case will be weakened, sometimes seriously so. And it is the prosecution which carries the burden of proof. Thus, unlike the right to counsel or the right to be free from compelled self-incrimination, deprivation of the right to speedy trial does not per se prejudice the accused's ability to defend himself.
Finally, and perhaps most importantly, the right to speedy trial is a more vague concept than other procedural rights. It is, for example, impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate. As a consequence, there is no fixed point in the criminal process when the State can put the defendant to the choice of either exercising or waiving the right to a speedy trial.
Barker v. Wingo, 407 U.S. at 519-21, 92 S.Ct. at 2186-87; accord, e.g., Howard v. Lacy, 58 F. Supp.2d 157, 165-66 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.). The Supreme Court recognized that some states had adopted bright line procedural rules, but the Court could not adopt a similar rule since that "would require this Court to engage in legislative or rule making activity." Barker v. Wingo, 407 U.S. at 523, 92 S.Ct. at 2188.
The Supreme Court therefore adopted a "balancing test." Id. at 529-30, 92 S.Ct. at 2191-92. The Supreme Court in Barker identified four factors which guide a court's determination of whether a defendant was denied his right to a speedy trial: "[1] Length of delay, [2] the reason for the delay, [3] the defendant's assertion of his right, and [4] prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192.
Accord, e.g., id. at 530-33, 92 S.Ct. at 2192-93; United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997), cert. denied, 118 S.Ct. 2075 (1998); United States v. Lainez-Leiva, 129 F.3d 89, 91-92 (2d Cir. 1997); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988), cert. denied, 488 U.S. 1032, 109 S.Ct. 842 (1989); Flowers v. Warden, 853 F.2d 131, 132 (2d Cir.), cert. denied, 488 U.S. 995, 109 S.Ct. 563 (1988); Howard v. Lacy, 58 F. Supp.2d at 166; McKenzie v. Herbert, 969 F. Supp. 1, 3 (E.D.N.Y. 1997); Dunavin v. Leonardo, No. 95-CV-296, 1997 WL 151771 at *3, *14 (N.D.N.Y. March 31, 1997) (Pooler, D.J.); Imoh v. Reish, No. 92 CV. 4404, 1995 WL 428705 at *2 (E.D.N.Y. July 12, 1995); Amable v. Scully, 91 Civ. 4694, 1993 WL 300036 at *3 (S.D.N.Y. Aug. 4, 1993); Cao v. Mann, 89 Civ. 5312, 1990 WL 89363 at *3 (S.D.N Y June 18, 1990); Hart v. Leonardo, 88 Civ. 5761, 1990 WL 89364 at *2 (S.D.N.Y. June 15, 1990), aff'd mem., 927 F.2d 594 (2d Cir. 1991).
The Supreme Court in Barker added:
We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.
Barker v. Wingo, 407 U.S. at 533, 92 S.Ct. at 2193.
Accord, e.g., United States v. Lainez-Leiva, 129 F.2d at 92; Rayborn v. Scully, 858 F.2d at 89; Flowers v. Warden, 853 F.2d at 132-33; Howard v. Lacy, 58 F. Supp.2d at 166; Dunavin v. Leonardo, 1997 WL 151771 at *14; Cao v. Mann, 1990 WL 89363 at *3.
1. Length of Delay
The Supreme Court in Barker v. Wingo noted that "[t]he length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192 (1972).In the instant case, the period between Holden's arrest on August 14, 1992 (or indictment on September 2, 1992), and the start of trial in April 1995, was approximately two and one half years. The Supreme Court and the Second Circuit have found that no constitutional speedy trial violation existed in cases in which the period between arrest and trial was even longer. See, e.g., Barker v. Wingo, 407 U.S. at 533-34, 92 S.Ct. at 2193-94 (over 5 years); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (over 7 years); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) ("The delay here was quite lengthy approximately 58 months or just under five years but nevertheless was shorter than that in other cases in which no Sixth Amendment violation has been found."); United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973) ("the length of time from arrest to indictment was 21 months and from arrest to trial 28 months, neither extraordinary."); United States v. Castrillon-Lopez, 85 Cr. 880, 1992 WL 6184 at *2 (S.D.N.Y. Jan. 3, 1992) (over 5 years).
Thus, the length of delay factor alone does not offer support for Holden's speedy trial claim.
2. Reasons For The Delay
In analyzing this second factor, the Supreme Court in Barker cautioned that:
[D]ifferent weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.
Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192 (1972).
See also, e.g., Flowers v. Warden, 853 F.2d 131, 134 (2d Cir. 1985); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980); United States v. Lane, 561 F.2d 1075, 1078-79 (2d Cir. 1977); United States v. Infanti, 474 F.2d 522, 527-28 (2d Cir. 1973); Howard v. Lacy, 58 F. Supp.2d 157, 167 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.).
In his state speedy trial motion, Holden claimed that the prosecution had not been ready for more than six months and that a total of 268 days should have been charged to the People. (Ex. 1: Holden 1st Dep't Br. at 29-30.) The trial court ultimately ruled that 175 days were chargeable to the prosecution. (2/15/95 Massaro Opinion.)
Whether the delay attributable to the State was 175 days, the 268 days claimed by Holden below, or even the entire thirty-month period, since nothing in the record indicates a deliberate attempt by the State to delay the trial in order to hamper Holden's defense, this factor does not weigh in Holden's favor. See, e.g., Flowers v. Warden, 853 F.2d 131, 133-34 (2d Cir. 1988) (no Sixth Amendment violation because 17-month delay was "due solely to institutional dysfunction,'" i.e., court docket congestion); United States v. McGrath, 622 F.2d at 41 (no speedy trial violation because, inter alia, "[t]here is no evidence of bad faith or deliberate delays here"); United States v. Lane, 561 F.2d at 1079 (no speedy trial violation because, inter alia, "[w]hile the record here contains some rather long unexplained delays, there is no indication that these are attributable either to deliberate procrastination or even negligent inaction on the part of the Government."); Howard v. Lacy, 58 F. Supp.2d at 168 ("nothing in the record indicates a deliberate attempt by the State to delay the trial in order to hamper [petitioner's] defense"); Arable v. Scully, 91 Civ. 4694, 1993 WL 300036 at *3 (S.D.N.Y. Aug. 4, 1993) (petitioner's "conclusory allegation" that "delay was due to the State's attempt to secure an unfair advantage' . . . is not supported by any evidence of bad faith on the part of the State"); Burress v. Henderson, 814 F. Supp. 313, 322 (W.D.N.Y. 1993) ("the record does not reflect any deliberate attempts by either side to delay the trial in order to aid or hamper the defense"); Holmes v. Bartlett, 810 F. Supp. 550, 562 (S.D.N.Y. 1993) ("although the cause of delay is uncertain, nothing in the record suggests that the State of New York intended to delay the trial in this case or that the prosecutor obtained any strategic advantage from the delay"); Velez v. People, 941 F. Supp. 300, 318 (E.D.N.Y. 1996).
3. Holden's Assertion of His Right
As to the third factor, "the defendant's responsibility to assert his right" to a speedy trial, the Supreme Court has stated that:
Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
Barker v. Wingo, 407 U.S. 514, 531-32, 92 S.Ct. 2182, 2192-93 (1972).
Holden asserted his speedy trial right in his motion to dismiss the indictment on speedy trial grounds. (Ex. 1: Holden 1st Dep't Br. at 2, 29.) He first asserted the claim on December 9, 1993, roughly 15 months after his indictment. (12/9/93 Motion at 3; Holden 1st Dep't Br. at 9.) Ironically, the pendency of Holden's speedy trial motion, including waiting for court reporters to prepare hearing transcripts that were needed to resolve the speedy trial issue, further delayed trial. See People v. Holden, 260 A.D.2d 233, 234-35, 689 N.Y.S.2d 40, 41 (1st Dep't 1999). This factor, in this case, is of little help to either side. Compare, e.g., United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (third factor "weighs heavily" against petitioners where they "waited roughly 22 months before advancing their speedy trial claims and this hardly renders plausible their contention that an expeditious resolution of their cases was a matter of pressing constitutional importance for them"); United States v. Abouhalima, 961 F. Supp. 78, 83 (S.D.N.Y. 1997) (waiting many months before raising Sixth Amendment speedy trial objection weighs against a violation); United States v. Love, 859 F. Supp. 725, 738 (S.D.N.Y. 1994) (prolonging proceedings by requesting extensions of time to file motion papers weighs against defendant's motion); Amable v. Scully, 91 Civ. 4694, 1993 WL 300036 at *3 (S.D.N.Y. Aug. 4, 1993) (asserting motion fifteen months after petitioner's arrest weighs against a finding that petitioner's right to a speedy trial was violated"); with United States v. Holyfield, 802 F.2d 846, 848 (6th Cir. 1986) (asserting right promptly favors defendants), cert. denied, 479 U.S. 1090, 107 S.Ct. 1298 (1987); Cain v. Smith, 686 F.2d 374, 384 (6th Cir. 1982) (raising speedy trial right on at least five separate occasions weighs heavily against the government); United States v. Vispi, 545 F.2d 328, 334 (2d Cir. 1976) (asserting speedy trial right "repeatedly and energetically" weighs in defendant's favor).
4. Prejudice
As to the fourth factor, prejudice, the Supreme Court explained that:
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (I) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.
Barker v. Wingo, 407 U.S. 514, 532, 92 S.Ct. 2182, 2193 (1972) (fn. omitted). The Second Circuit has explained that "[a]lthougha showing of prejudice is not a prerequisite to finding a Sixth Amendment violation, courts generally have been reluctant to find a [constitutional] speedy trial violation in the absence of genuine prejudice.'" United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997) (quoting Rayborn v. Scully, 858 F.2d 84, 94 (2d Cir. 1988)).
Accord, e.g., Howard v. Lacy, 58 F. Supp.2d 157, 169 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.); Dunavin v. Leonardo, No. 95-CV-296, 1997 WL 151771 at *15 (N.D.N.Y. March 31, 1997) (Pooler, D.J.) ("In the absence of a showing of prejudice, courts generally will not find a speedy trial violation unless all of the remaining Barker factors weigh heavily in favor of the [petitioner]."); United States ex rel. Eccleston v. Henderson, 534 F. Supp. 813, 816 (E.D.N.Y.) (prejudice is "most significant" Barker factor), aff'd mem., 697 F.2d 289 (2d Cir.), cert. denied, 459 U.S. 871, 103 S.Ct. 157 (1982).
Holden has never alleged that he suffered any prejudice from the delay. He does not allege that he was prevented from calling witnesses or hindered in preparing his defense as a result of the delay. The lack of prejudice weighs against a violation and fails to approach the prejudice alleged by defendants in other cases where the Second Circuit nevertheless found no speedy trial violation. See, e.g., United States v. McQuillan, 525 F.2d 813, 818 (2d Cir. 1975) (no speedy-trial violation even though defendant lost his job, and alleged that some of his witnesses became unavailable for trial); United States v. Lasker, 481 F.2d 229, 237 (2d Cir. 1973) (prejudice was "insubstantial" where defendant alleged "general claims of prejudice, such as damage to reputation . . . and the dulling of witnesses' memories," and two character witnesses for defendant died), cert. denied, 415 U.S. 975, 94 S.Ct. 1560 (1974); United States v. Infanti, 474 F.2d 522, 528 (2d Cir. 1973) (no speedy trial violation from 28-month delay even though defendant alleged that two witnesses critical to his case had died, prosecution witnesses had memory lapses, and records allegedly critical to defendant's case had been destroyed); United States v. Schwartz, 464 F.2d 499, 505 (2d Cir.) (no speedy-trial violation even though defendant claimed destruction of records, impairment of witnesses' memory, and unavailability of a government official who could testify that defendant's transaction was legal), cert. denied, 409 U.S. 1009, 93 S.Ct. 443 (1972).
Holden has failed to allege any, let alone sufficient, prejudice.
5. Balancing All Four Barker Factors
Having considered the four Barker factors and all of the relevant circumstances in this case, the Court finds that there was no Constitutional speedy trial violation in this case.
II. HOLDEN'S CLAIM OF DENIAL OF A JUSTIFICATION DEFENSE CHARGE SHOULD BE DENIED ON THE MERITS BECAUSE SUCH A CHARGE IS NOT SUPPORTED BY A REASONABLE VIEW OF THE EVIDENCE UNDER NEW YORK LAW, SINCE HOLDEN COULD HAVE RETREATED TO SAFETYIn order for a petitioner to establish that he is entitled to habeas corpus relief based upon a state court's failure to give a jury charge, the petitioner first must establish that the jury instruction should have been given under state law, and second, that the erroneous jury charge resulted in a federal constitutional deprivation. As the Second Circuit has stated: "'In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990) (quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)); see, e.g., Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973).
See also, e.g., Davis v. Strack, 97 Civ. 5375, 1999 WL 1565178 at *12 (S.D.N.Y. Apr. 13, 1999) (Peck, M.J.); Ellison v. Hoke, No. 93 CV 3048, 1995 WL 561344 at *3 (E.D.N.Y. Sept. 15, 1995); Godfrey v. Irvin, 871 F. Supp. 577, 580 (W.D.N Y 1994).
Failure to give a properly requested jury charge does not by itself violate Holden's right to due process. See, e.g., Blazic v. Henderson, 900 F.2d at 541 ("A mere error of state law does not deny a defendant his right to due process."); Schaefer v. Leone, 443 F.2d 182, 185 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 277 (1971); Davis v. Strack, 1999 WL 1565178 at *12. "For an erroneous state jury charge to result in a federal constitutional deprivation, 'the ailing instruction by itself [must have] so infected the entire trial that the resulting conviction violates due process.'" Blazic v. Henderson, 900 F.3d at 541 (quoting Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400); see also, e.g., Casillas v. Scully, 769 F.2d at 63 ("In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law."); Davis v. Strack, 1999 WL 1565178 at *12; Carmona v. Artuz, 96 Civ. 8045, 1997 WL 876737 at *11 (S.D.N.Y. Oct. 7, 1997) ("Jury charges that contain errors, even if they lead to the jury misapplying state law, do not ordinarily give rise to federal habeas corpus relief in non-capital cases. . . . Rather, an erroneous jury charge must have 'infected the entire trial' to be a cognizable claim in a habeas corpus proceeding."), report rec. adopted, 96 Civ. 8045, 1998 WL 213781 (S.D.N.Y. April 29, 1998); Ellison v. Hoke, 1995 WL 561344 at *3; Godfrey v. Irvin, 871 F. Supp. at 581. The challenged instruction is not to be viewed in isolation, but "in the context of the overall charge." Cupp v. Naughten, 414 U.S. at 147, 94 S.Ct. at 400. As the Supreme Court has observed, "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law," and thus the petitioner's "burden is especially heavy." Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 1737 (1977); accord, e.g., Davis v. Strack, 1999 WL 1565178 at *12; Bramble v. Smith, 1998 WL 395265 at *17.
See also, e.g., Vargas v. Keane, 86 F.3d 1273, 1277 (2d Cir.), cert. denied, 117 S.Ct. 240 (1996); Davis v. Strack, 1999 WL 1565178 at *12; Bramble v. Smith, 96 Civ. 5905, 1998 WL 395265 at *17 (S.D.N.Y. July 15, 1998); Carmona v. Artuz, 1997 WL 876737 at *11; Godfrey v. Irvin, 871 F. Supp. at 581.
The Second Circuit has instructed that, "[a]s a preliminary matter, due process does not require the giving of a jury instruction when such charge is not supported by the evidence." Blazic v. Henderson, 900 F.3d at 541; accord, e.g., Davis v. Strack, 1999 WL 1565178 at *13; see also, e.g., Bramble v. Smith, 1998 WL 395265 at *17.
A. The Justification Defense Under New York Law
New York Penal Law § 35.15 provides that a person is justified in using physical force in self-defense under the following circumstances:
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person. . . .
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating;. . . .
Penal Law § 35.15 (emphasis added.) As one commentary has noted, New York is more strict on the obligation to retreat than other states. See, e.g., 35 N.Y. Jur.2d, Defenses to Criminal Liability § 3484 (1995) ("Among the states, there is a difference of opinion as to the necessity of retreating before one is justified in taking the life of an assailant. In some jurisdictions, the view is taken that retreat is not required in the case of a felonious attack, but that where the attack is without felonious intent, the person attacked may not stand his or her ground and kill the adversary if there is any means of escape open. For the most part, New York adheres to this position, although the felonies to repel which deadly physical force may be used without obligation to retreat are limited by statute. In other jurisdictions, however, the right to stand one's ground is given broader scope.").
In In re Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001 (1996), the New York Court of Appeals explained that Penal Law § 35.15 imposes a three part test to determine whether the use of deadly physical force was justified: first, whether defendant subjectively believed deadly physical force was necessary; second, whether this belief was objectively reasonable; and third, whether defendant could have retreated with safety:
In People v. Goetz, [ 68 N.Y.2d 96, 115, 506 N.Y.S.2d 18, 29-30 (1986)] we explained that the justification statute imposes a two-part test which involves both subjective and objective components. When a defendant claims the use of force was justified, the fact finder must first determine if defendant believed physical force (or deadly physical force) was necessary to defend against the imminent use of physical force (or deadly physical force). That is the subjective component. If the People fail to disprove defendant believed physical force was necessary, the fact finder must next consider whether defendant's belief was reasonable, that is, whether a reasonable person would have held that belief under the circumstances which existed. It is not enough that the defendant believed that the use of force was necessary under the circumstances; his reactions must be those of a reasonable person similarly confronted. . . . That is the objective component.
If the case involves the use of deadly physical force and the fact finder determines that the use of such force was subjectively and objectively reasonable under the circumstances, then the fact finder must determine whether defendant could retreat with safety. If a defendant confronted with deadly physical force knows retreat can be made with complete safety and fails to do so, the defense is lost.
In re Y.K., 87 N.Y.2d at 433-34, 639 N.Y.S.2d at 1003 (emphasis added).
See, e.g., People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 709-10 (1990); People v. Snell, 682 N.Y.S.2d 80, 80 (2d Dep't 1998); People v. Hayes, 248 A.D.2d 635, 635, 669 N.Y.S.2d 953, 954 (2d Dep't 1998); People v. Young, 240 A.D.2d 974, 976, 659 N.Y.S.2d 542, 543 (3d Dep't), appeal denied, 90 N.Y.2d 1015, 666 N.Y.S.2d 110 (1997); People v. Roldan, 222 A.D.2d 132, 138, 647 N.Y.S.2d 179, 183 (1st Dep't 1996); People v. Hall, 220 A.D.2d 615, 615, 633 N.Y.S.2d 39, 39-40 (2d Dep't 1995); People v. Counts, 214 A.D.2d 897, 898, 625 N.Y.S.2d 697, 698 (3d Dep't), appeal denied, 86 N.Y.2d 792, 800, 632 N.Y.S.2d 506, 514 (1995); In re Ismael S., 213 A.D.2d 169, 171, 623 N.Y.S.2d 571, 573 (1st Dep't 1995); People v. Hagi, 169 A.D.2d 203, 210, 572 N.Y.S.2d 663, 667-68 (1st Dep't), appeal denied, 78 N.Y.2d 1011, 575 N.Y.S.2d 819 (1991); see also, e.g., Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997), cert. denied, 118 S.Ct. 1077 (1998); Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990); Davis v. Strack, 97 Civ. 5375, 1999 WL 1565178 at *14 (S.D.N.Y. Apr. 13, 1999) (Peck, M.J.).
Justification "is an ordinary defense rather than an affirmative one. . . . As such, whenever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged." People v. McManus, 67 N.Y.2d 541, 546-47, 505 N.Y.S.2d 43, 46 (1986).
See, e.g., In re Y.K., 87 N.Y.2d at 433, 639 N.Y.S.2d at 1003; People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 891 (1970); In re Ismael S., 213 A.D.2d at 171-72, 623 N.Y.S.2d at 573; People v. Veitia, 171 A.D.2d 461, 461, 566 N.Y.S.2d 868, 868 (1st Dep't), appeal denied, 78 N.Y.2d 976, 574 N.Y.S.2d 956 (1991); People v. Jackson, 154 A.D.2d 930, 930, 547 N.Y.S.2d 164, 164 (4th Dep't), appeal denied, 74 N.Y.2d 949, 550 N.Y.S.2d 284 (1989), error coram nobis denied mem., 213 A.D.2d 1085, 625 N.Y.S.2d 998 (4th Dep't 1995); see also, e.g., Tate v. Wood, 963 F.2d 20, 23 (2d Cir. 1992); Blazic v. Henderson, 900 F.2d at 542; Davis v. Strack, 1999 WL 1565178 at *15.
In determining whether the evidence warrants the giving of a justification charge, New York courts have repeatedly emphasized that the evidence is to be construed in the light most favorable to the defendant. See, e.g., People v. Magliato, 68 N.Y.2d 24, 29, 505 N.Y.S.2d 836, 840 (1986); People v. McManus 67 N.Y.2d at 549, 505 N.Y.S.2d at 48; People v. Padgett, 60 N.Y.2d 142, 144, 468 N.Y.S.2d 854, 856 (1983); People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 678 (1982); People v. Steele, 26 N.Y.2d at 529, 311 N.Y.S.2d at 891-92; People v. Vecchio, 240 A.D.2d 854, 855, 658 N.Y.S.2d 720, 721 (3d Dep't 1997); People v. Rivera, 138 A.D.2d at 174, 530 N.Y.S.2d at 805; see also, e.g., Davis v. Strack, 1999 WL 1565178 at *15. "When evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed [justification] defense, the court should instruct the jury as to the defense, and must when so requested. . . . As a corollary, when no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury." People v. Watts, 57 N.Y.2d at 301, 456 N.Y.S.2d at 678.
See also, e.g., Davis v. Strack, 1999 WL 1565178 at *15; People v. McManus 67 N.Y.2d at 549, 505 N.Y.S.2d at 48; People v. Padgett, 60 N.Y.2d at 144-45, 468 N.Y.S.2d at 856).
According to Holden's direct testimony at trial, he never alleged any threat of deadly force or fear that Detective Laperuta was going to use deadly force against him. Although Holden testified that when Detective Laperuta was at the door he felt nervous and suspicious (Holden: Tr. 801-03, 831), such feelings do not rise to a fear of the imminent use of deadly force. Furthermore, Holden testified that he retrieved the gun only after Detective Laperuta wedged his foot in the door and forced himself into the apartment. (Holden: Tr. 802, 824, 830-31.) Again, such action by Detective Laperuta which caused Holden to "panic" and reach for the gun, does not offer a reasonable view that Holden was threatened with deadly force. (Holden: Tr. 802-03, 831.) In addition, there was no evidence presented at trial that Holden was aware that Detective Laperuta was armed with a deadly weapon prior to Holden retrieving the gun. (Holden: Tr. 803, 805.) Therefore, under the circumstances surrounding the confrontation, it was not objectively reasonable to believe that deadly force was necessary. See, e.g., People v. Cox, 92 N.Y.2d 1002, 1005, 684 N.Y.S.2d 473, 475 (1998); People v. Torres, 252 A.D.2d 60, 64, 686 N.Y.S.2d 375, 378 (1st Dep't 1999); People v. Davis, 232 A.D.2d 209, 209, 648 N.Y.S.2d 79, 80 (1st Dep't 1996) (defendant acknowledged that he never saw a weapon in the victim's possession); People v. Roldan, 222 A.D.2d 132, 138, 647 N.Y.S.2d 179, 183 (1st Dep't 1996).
Moreover, Holden does not even allege that he maintained such a subjective belief. The evidence shows that Holden armed himself with a loaded gun before he had any belief that Detective Laperuta was going to use deadly physical force against him. (Holden: Tr. 802-03, 831.) Thus, Holden was not justified in retrieving a deadly weapon in the first place because there was no threat of deadly harm. Therefore, even viewing the evidence in a light most favorable to Holden, Detective Laperuta's foot wedged in the door and Holden seeing shadows in the hallway, coupled with the fact that Holden never stated that he felt threatened by deadly force, do not justify Holden going for a deadly weapon.
In addition, assuming arguendo that Holden subjectively believed that Laperuta was going to use deadly force and further assuming arguendo that such a belief was objectively reasonable, Holden still would not be entitled to the justification defense charge under New York law because he had a clear opportunity to retreat to safety. Holden used that opportunity not to retreat to safety but to arm himself with a gun. Thus, Holden was not entitled to a justification charge under New York law because he failed to retreat when he had the opportunity to do so safely. See, e.g., People v. Russell, 91 N.Y.2d 280, 289-90, 670 N.Y.S.2d 166, 168-69 (1998) ("defendants approached one another on . . . a grassy open area," and "it was evident that an encounter between them would be violent", yet "[d]espite the palpable threat, [defendant], armed with a nine millimeter Glock, did not flee with his friends. Rather, he continued toward [two other defendants], tacitly accepting their invitation and issuing one of his own. . . . Here, there was evidence that defendants did not avail themselves of opportunities for safe retreat, choosing instead to use deadly force against each other. As such, there was adequate support for each jury's rejection of defendants' justification defense."); People v. Seit, 86 N.Y.2d 92, 97, 629 N.Y.S.2d 998, 1000-01 (1995) (in dicta, no justification defense was available because "after [defendant's son] called 911, decedent walked to his van, parked some 40 feet away from the stoop, took off his jacket and left it there. At that point, defendant and his family had the opportunity to leave the stoop and retreat into their apartments. Defendant's actions in failing to do so and in waiting for decedent to return to the area of the stoop to renew the argument when he had the opportunity to safely retreat, defeat any claim of justification."); People v. Collice, 41 N.Y.2d 906, 907, 394 N.Y.S.2d 615, 616 (1977) ("[F]rom the inception of defendant's transaction with his 'enemies' he had initially sought them out for a confrontation, backed away when outnumbered, and then when they followed him to his neighborhood, he shot at them before he had completed his 'retreat' which was largely successful and could have been consummated by withdrawal in complete safety to his home. A jury charge on the issue of justification was, therefore, unnecessary."); People v. Rattley, 148 A.D.2d 642, 643, 539 N.Y.S.2d 101, 102 (2d Dep't) (evidence supports jury verdict of no justification where defendant got into a fight with his brother who held a knife, returned to his own room and remained there for a short time, then returned to the scene, took his gun and when his brother came at him with the knife, shot his brother, because "[e]ven if the defendant believed that the decedent was about to use deadly force against him, he was obligated to withdraw from the encounter, since the evidence establishes that he had the ability to retreat in complete safety."), appeal denied, 74 N.Y.2d 745, 545 N.Y.S.2d 120 (1989), habeas corpus dismissed, 92 CV 2136, 1995 WL 264170 (E.D.N.Y. April 26, 1995); People v. Reyes, 116 A.D.2d 602, 602-03, 497 N.Y.S.2d 463, 464-65 (2d Dep't) (justification charge not available where "following the first confrontation between the parties, defendant retreated to his apartment and the decedent did not follow him. Thereafter, defendant returned to the scene of the prior incident carrying a baseball bat and a knife. Even assuming at this point that defendant reasonably believed that the decedent was about to use deadly force against him, he was obligated to withdraw from the encounter rather than use deadly force himself since he had the ability to retreat in complete safety."), appeal denied, 67 N.Y.2d 949, 502 N.Y.S.2d 1042 (1986).
Here, as in the cases cited immediately above, Holden had the opportunity to retreat. However, rather than retreating to safety, Holden went to get a deadly weapon. The Court cannot say that the state trial court's decision not to give a justification charge "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The trial judge correctly applied New York law to the facts as he found them. Under New York law, the trial court "was under no obligation to charge justification if no reasonable view of the evidence established the elements of that defense." People v. Counts, 214 A.D.2d 897, 897-98, 625 N.Y.S.2d 697, 698 (3d Dep't 1995), appeal denied, 86 N.Y.2d 792, 800, 632 N.Y.S.2d 506, 514 (1995).
See, e.g., People v. Barber, 269 A.D.2d 758, 703 N.Y.S.2d 328, 330 (4th Dep't 2000); People v. Rattley, 148 A.D.2d 642, 643, 539 N.Y.S.2d 101, 102 (2d Dep't 1989); People v. Smith, 87 A.D.2d 640, 641, 448 N.Y.S.2d 211, 212-13 (2d Dep't 1982).
Accord, e.g., Blazic v. Henderson, 900 F.2d at 540; Davis v. Strack, 97 Civ. 5375, 1999 WL 1565178 at *21 (S.D.N.Y. Apr. 13, 1999) (Peck, M.J.); People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 678 (1982); People v. Carello, 241 A.D.2d 903, 905, 660 N.Y.S.2d 515, 516 (3d Dep't), appeal denied, 90 N.Y.2d 938, 664 N.Y.S.2d 757 (1997); People v. Cleveland, 235 A.D.2d 929, 930, 653 N.Y.S.2d 425, 426 (3d Dep't), appeal denied, 89 N.Y.2d 1090, 660 N.Y.S.2d 384 (1997); People v. Mitchell, 216 A.D.2d 331, 332, 627 N.Y.S.2d 771, 772 (2d Dep't), appeal denied, 86 N.Y.2d 798, 632 N.Y.S.2d 512 (1995); People v. Odinga, 143 A.D.2d 202, 204, 531 N.Y.S.2d 818, 820 (2d Dep't), appeal denied, 73 N.Y.2d 853, 858, 537 N.Y.S.2d 500, 505 (1988); People v. Ruiz, 138 A.D.2d 420, 420, 525 N.Y.S.2d 702, 703 (2d Dep't 1988); People v. Acevedo, 117 A.D.2d 813, 813-14, 499 N.Y.S.2d 132, 133 (2d Dep't), appeal denied, 68 N.Y.2d 665, 505 N.Y.S.2d 1030 (1986); People v. Alston, 104 A.D.2d 653, 654, 480 N.Y.S.2d 115, 116 (2d Dep't 1984).
The Court need not reach the question of whether Holden's due process rights were violated, because he has failed to make the threshold showing that the trial court erred as a matter of state law in declining to charge justification. See, e.g., United States ex rel. Herrington v. Mancusi, 415 F.2d 205, 211 (2d Cir. 1969) ("Since petitioner . . . has not established that under New York law, as it now stands, the Supreme Court lacked jurisdiction over his case, we do not reach his due process claim on the merits."); Davis v. Strack, 1999 WL 1565178 at *12; McEachin v. Ross, 951 F. Supp. 478, 483-84 (S.D.N.Y. 1997) (not reaching due process analysis because the state court's jury instructions were proper); Ellison v. Hoke, No. 93 CV 3048, 1995 WL 561344 at *1 (E.D.N.Y. Sept. 15, 1995) (same); Styles v. VanZandt, 94 Civ. 1863, 1995 WL 326445 at *8-9 (S.D.N.Y. May 31, 1995) (same), aff'd mem., 101 F.3d 684 (2d Cir.), cert. denied, 117 S.Ct. 313 (1996).
Accordingly, Holden's claim that the trial court erred in refusing to give a justification charge, should be denied.
CONCLUSION
For the reasons set forth above, the Court should deny Holden's habeas petition in its entirety.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).