Opinion
No. 00 Civ. 4777 (RPP)(KNF).
March 31, 2005
REPORT AND RECOMMENDATION
TO THE HONORABLE ROBERT P. PATTERSON, UNITED STATES DISTRICT JUDGE I. INTRODUCTION
Before the Court is the petition of Alvin Peterson ("Peterson") for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Peterson alleges that the judgment of conviction entered against him in a New York state court and its resulting constraint on his liberty is unlawful because: (1) the assistance rendered to the petitioner by his trial counsel was ineffective, since counsel misstated to the trial court the applicable law governing his sentencing; (2) the assistance rendered to the petitioner by his appellate counsel was ineffective, since appellate counsel did not raise the ineffectiveness of trial counsel on appeal; (3) the delay of approximately three-and-a-half years in the imposition of sentence upon the petitioner violated his constitutional right to a speedy trial; and (4) the decision by a state appellate court to affirm the judgment of conviction was inconsistent with determinations made by your Honor in the adjudication of a prior habeas corpus petition filed by Peterson.
The respondents oppose the petition on the grounds that Peterson's claims of ineffective assistance of counsel are unexhausted and that all of the claims made by Peterson are without merit.
For the reasons set forth below, I recommend that the petition be granted, in part, and denied, in part.
II. BACKGROUND
A memorandum and order issued by your Honor in connection with a prior habeas corpus petition filed by Peterson ("1997 petition") contained a recitation of some of the facts pertinent to the instant petition:
Petitioner was arrested on August 7, 1993, and charged with criminal sale and possession of a controlled substance in the third degree. On April 4, 1994, the state offered petitioner a plea bargain. If petitioner would give up his right to a trial on the charged crimes and plead guilty to attempted criminal sale of a controlled substance in the third degree, New York Penal Law § 110/220.39, the court would sentence petitioner to 3½ to 7 years incarceration to run concurrently with the sentence it was expected petitioner would receive for violating the terms and conditions of his federal parole. Petitioner accepted the offer and tendered his plea of guilty. Although petitioner's counsel advised the court and the prosecutor that petitioner would first have to be released to federal authorities pursuant to a detainer they had lodged, and be sentenced for violating the terms and conditions of his federal parole in order for the promise of a concurrent sentence to be given effect, petitioner's sentencing was adjourned to enable the prosecutor to determine what procedure had to be followed to insure that petitioner's state sentence and his prospective federal sentence would run concurrently.
By June 28, 1994, the prosecutor had not determined what procedure had to be followed to give effect to the promise that petitioner's state and federal sentences would run concurrently. Petitioner then moved to withdraw his plea. That motion was denied by Justice Felice K. Shea, Supreme Court, New York County. Justice Shea told petitioner that "we very carefully went through, Mr. Peterson, with you exactly what I was promising to you and exactly what your understanding was. You assured me that you understood. . . . I am also prepared to keep the promise I made to you. And I have no reason to give back your plea." Petitioner was then sentenced to 3½ to 7 years to run concurrently with the prospective federal sentence. In addition, the court ordered the petitioner to be released into federal custody so that he might be sentenced for his parole violation. However, the court's order was not followed. The New York City Department of Corrections determined to transfer custody of petitioner to the New York State Department of Correctional Services for service of his 3½ to 7 years sentence. When petitioner learned of this, he advised his attorney. On July 12, 1994, petitioner was brought before Justice Shea and resentenced. She again directed that petitioner be released to the custody of federal authorities. She also directed the New York City Department of Corrections to produce petitioner before her on July 21, 1994. However, these directives were disregarded, and sometime prior to July 21, 1994, petitioner was transferred to the custody of the New York State Department of Correctional Services to serve his 3½ to 7 years sentence. On September 2, 1994, petitioner moved pro se for an order pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10, vacating the judgment of the sentencing court. In his motion papers, petitioner claimed that the state and federal sentences could not be served concurrently as promised; and, as a consequence, he was, in actuality, serving a consecutive sentence.
On September 14, 1994, petitioner's trial counsel moved to vacate petitioner's sentence pursuant to C.P.L. § 440.20. The record does not indicate that the prosecutor opposed either application. On October 24, 1994, Justice Shea issued a Decision and Order vacating petitioner's sentence:
On June 28, 1994, the Court imposed a sentence of 3½ to 7 years to run concurrently with the sentence to be imposed in federal court on the parole violation. . . . However, . . . in order for the state and federal sentences to run concurrently, defendant must be sentenced on the federal parole violation prior to the imposition of sentence in the instant case.
Accordingly, defendant's motion to vacate the sentence imposed is granted. The People are directed to produce defendant before this Court on a date convenient to defense counsel and to coordinate his release to the federal authorities. Upon defendant's release to the federal authorities, the New York City Department of Correction is to lodge a detainer with the federal authorities so that defendant can be retained for resentencing by this Court as soon as defendant is sentenced on his parole violation. Upon defendants return for resentencing, this Court will once more impose the plea bargained sentence of 3½ to 7 years to run concurrently with the sentence on the federal parole violation.
On January 4, 1995, petitioner was transferred from state custody into the custody of the United States Marshals' Service and escorted to FCI Ray Brook, a facility of the United States Bureau of Prisons. Sometime thereafter, petitioner's parole was revoked for violating the terms and conditions of his federal parole. Following the revocation of his parole . . . petitioner notified his attorney and requested that he be returned to the Supreme Court, New York County, for sentencing pursuant to his plea agreement. In October 1995, by letter, the prosecutor assigned to petitioner's case lodged a detainer with federal prison authorities at FCI Ray Brook. The letter requested that petitioner be returned to the custody of New York State after he completed his federal sentence so that he could be sentenced to 3½ to 7 years in accordance with the promise made to him when he tendered his plea of guilty in Supreme Court, New York County. The text of the letter was not consistent with a January 6, 1995 stipulation to which the prosecutor and petitioner had agreed. The terms of that agreement required that petitioner be returned to state court for sentencing following the completion of his federal parole violation hearing. By November 15, 1995, petitioner had not been returned to the New York State Supreme Court. He then caused to be issued, pursuant to the [Interstate Agreement on Detainers ("IAD")], a request for disposition of his state case. Such a request, when properly made and acted upon, requires that within 180 days a trial be held on any untried indictment, information, or complaint for which a detainer was lodged, unless a court grants a continuance.
[I]t appears that petitioner attempted to use this IAD provision to have himself returned to the New York State Supreme Court for sentencing. In any event, 180 days elapsed and petitioner was not returned to state court for sentencing. On November 25, 1995, petitioner made a motion for an order dismissing the indictment for loss of jurisdiction. That motion was denied by Justice Shea on March 1, 1996. In June 1996, petitioner filed a motion pro se, to dismiss the indictment because the state had failed to return him to court for resentencing within the 180 days required by [the] IAD and, consequently, petitioner maintained, his state statutory right to a speedy trial was violated. That motion was denied by Justice Shea on October 2, 1996.Peterson v. Lacy, No. 97 Civ. 7795, 1998 U.S. Dist. LEXIS 19599 at *2-*8, (S.D.N.Y. Dec. 17, 1998) (footnotes and citations omitted) ("1997 habeas corpus decision").
In the case at bar, the respondents filed a dispositive motion, which resulted in a previous report and recommendation to your Honor. See Peterson v. People of the State of New York, No. 00 Civ. 4777, 2003 U.S. Dist. LEXIS 7127, (S.D.N.Y. April 24, 2003) ("2003 Report and Recommendation"). That report, which was adopted by your Honor, contains additional factual background relevant to the instant petition:
Through [the series of mishaps recounted above], Peterson was never able to be sentenced in state court so as to secure the concurrent sentence for which he had bargained. As a result, Peterson completed the period of incarceration that he was required to serve for violating the terms and conditions of his federal parole without earning credit toward his state sentence. On February 28, 1997, after Peterson had fulfilled his obligation to federal authorities, the state sentence of three and one-half to seven years imprisonment that had previously been imposed on Peterson by the trial court and then vacated by the same court, in an effort to effect the promise of concurrency, was reimposed on Peterson by the trial court.
Thereafter, the New York State Department of Correctional Services calculated the dates on which Peterson would complete his maximum sentence, be eligible for parole and be conditionally released from state prison. The calculation did not credit Peterson for the period of incarceration occasioned by his violation of the terms and conditions of his federal parole. Therefore, the calculation did not honor Peterson's plea agreement or the sentence the trial judge had imposed, which provided that the time petitioner served in federal custody for violating parole would run concurrently with the period of incarceration petitioner would serve for violating New York's Penal Law.
On July 31, 1997, Peterson filed a Notice of Appeal with the New York State Supreme Court, Appellate Division, First Department ["Appellate Division"], challenging the judgment entered on February 28, 1997, that committed him to the custody of the New York State Department of Correctional Services for three and one-half to seven years. The Legal Aid Society was appointed to represent petitioner in connection with the appeal. Peterson did not hear from an attorney for several months after the Legal Aid Society was appointed to represent him. Therefore, Peterson sent several letters to the Legal Aid Society; the letters went unanswered. Consequently, on January 8, 1998, Peterson asked the Appellate Division to appoint new counsel for him. That application was granted. However, on March 16, 1998, the newly appointed attorney requested that the court relieve him of the obligation of assisting Peterson with his appeal. The attorney explained that his request was prompted by his friendship with Peterson's trial counsel, against whom there was evidence that he had rendered ineffective assistance to Peterson. The Appellate Division granted the attorney's request and assigned another attorney to represent Peterson. However, this attorney also asked to be relieved of the obligation of assisting Peterson with his appeal. He claimed that his relationship to Peterson's prior appellate counsel presented him with a conflict of interest.
Due to this series of events, no brief was submitted to the Appellate Division on Peterson's behalf until January 1999. Through that brief, Peterson urged the Appellate Division to dismiss the indictment to which he had pleaded guilty because the four-year delay in imposing the three and one-half to seven year sentence upon him was inordinate, the extended period of incarceration he suffered, occasioned by the delay in effecting the promised sentence, was cruel and unusual punishment and violated the due process clause of the state and federal constitutions and, furthermore, the state had violated the terms and conditions of the Interstate Agreement on Detainers Act. Peterson had attempted to use the provisions of the Act to have his promised sentence executed.
In September 1997, while Peterson was attempting to have his appeal prosecuted, he petitioned this court for a writ of habeas corpus. He requested that the court direct that he be released immediately from New York State's custody because the state had violated federal statutory rights he had under the Interstate Agreement on Detainers Act, and had delayed in imposing his promised sentence. In addition, Peterson claimed the writ should be granted because his trial and appellate counsel had rendered ineffective assistance to him. Although Peterson had not exhausted all the state remedies available to him when he sought habeas corpus relief from the court at that time, your Honor determined to excuse that deficiency and, after finding that the delay in sentencing that Peterson had experienced and the delay he was then experiencing in having his appeal perfected, were violative of the Sixth Amendment and the Due Process Clause, your Honor granted the writ in order to give effect to the plea bargain into which Peterson had entered with the state in 1994. [See Peterson, 1998 U.S. Dist. LEXIS 19599.]
On September 9, 1999, Peterson's judgment of conviction was affirmed. See [People v. Peterson,] 264 A.D.2d 574, 695 N.Y.S.2d 550 (App. Div. 1st Dept. 1999). The Appellate Division reasoned that, since the Interstate Agreement on Detainers Act applied only to untried charges and did not apply to situations involving a person who has been convicted but not yet sentenced, the trial court acted properly in finding that Peterson's rights under the Act had not been violated. Furthermore, the Appellate Division found no reason to dismiss the indictment because of the long delay in sentencing Peterson. The court explained that, when plausible reasons exist for the period of delay, any unreasonable delay in sentencing a criminal defendant may be excused. In the instant case, the Appellate Division found that the trial court had initially sentenced Peterson two months after he tendered his plea of guilty in 1994. Thereafter, the trial court made "diligent and persistent attempts to effectuate the terms of the plea bargain by vacating and reissuing the sentence several times at [petitioner's] request and repeatedly [directed] the correctional authorities to cooperate." [People v. Peterson,] 264 A.D.2d at 576, 695 N.Y.S.2d at 552. . . . The New York Court of Appeals later declined to entertain an appeal by Peterson from the Appellate Division's decision. See People v. Peterson, 94 N.Y.2d 865, 704 N.Y.S.2d 541 (1999).
2003 Report and Recommendation, at *1-*7, 1-6.
Page references to the 2003 Report and Recommendation that do not bear asterisks are references to the original pagination of the document.
The United States Supreme Court denied Peterson's petition for a writ of certiorari. See Peterson v. New York, 531 U.S. 831, 121 S.Ct. 85 (2000).
Thereafter, Peterson filed the instant petition for a writ of habeas corpus, seeking relief on the grounds noted above. In their dispositive motion, the respondents contended that the instant petition should be dismissed on the ground that the claims asserted were presented to the court previously, when it considered Peterson's 1997 petition. Accordingly, the respondents maintained that the petition is a second or successive petition proscribed by 28 U.S.C. § 2244. The respondents' motion was denied after the Court determined that, whereas the 1997 petition was an attack upon the execution of Peterson's sentence, the instant petition was an attack upon the judgment of conviction.
III. DISCUSSION
Where a state court has adjudicated the merits of a claim raised in a federal habeas corpus petition, 28 U.S.C. § 2254 provides that a writ of habeas corpus may issue only if the state court's adjudication resulted in a decision that: (1) was contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See 28 U.S.C. § 2254(d) ("§ 2254");see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000). A state court determination may be an unreasonable application of federal law "if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d 36, 45 (2d Cir. 2002); see also Ramdass v. Angelone, 530 U.S. 156, 166, 120 S.Ct. 2113, 2120 (2000) (plurality opinion) ("A state determination may be set aside under this standard if, under clearly established federal law, the state court was unreasonable in refusing to extend the governing legal principle to a context in which the principle should have controlled.") Ineffective Assistance of Counsel a. Trial Counsel
The Sixth Amendment guarantees a criminal defendant the "right to effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063 (1984). To determine whether counsel's assistance was effective, the Supreme Court devised a two-part test. See id. at 687-96, 2064-69. First, a criminal defendant must show that his counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness," measured according to "prevailing professional norms." Id., at 687-88, 2064-65. Second, the criminal defendant must affirmatively demonstrate prejudice. Id. at 694, 2068. Prejudice is rarely presumed, and so the defendant generally must prove that "there is a reasonable probability that but for counsel's [error], the result of the proceeding would have been different." Id.; see also United States v. Javino, 960 F.2d 1137, 1145 (2d Cir. 1992). A reasonable probability has been defined as "a probability sufficient to undermine confidence in the outcome." See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. Considerable deference is accorded counsel's performance, as counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690, 2066.
Peterson contends that, at his first sentencing proceeding, his trial counsel's assistance was constitutionally deficient because counsel misstated New York law governing the execution of concurrent sentences. Had counsel advised the trial court of the correct procedure for effecting a concurrent sentence for a defendant in Peterson's situation, Peterson maintains, the chain of events that led to his eight additional months of imprisonment would have been averted. The Court determined previously, however, that the instant petition is an attack upon the judgment of conviction that was entered against Peterson as a result of his guilty plea; it is not an attack upon Peterson's sentence. See 2003 Report and Recommendation, at 7-8, *11-*12. In order to demonstrate prejudice in this context, a habeas petitioner "must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S. Ct. 366, 370 (1985).
Peterson contends that he "sought to withdraw his plea soon after the trial court advised him that whether the promised sentence would actually run concurrent [sic] was up to the Department of Correctional Services, demonstrating both his reliance on his attorney's advice and his intention to withdraw the plea and face trial." The factual portion of this statement, however, does not suggest that the petitioner relied upon the statements of his trial counsel, as much as upon the statements of the trial court. In any event, Peterson did, in fact, seek to withdraw his plea of guilty, and that application was denied by the trial court. Peterson does not contend — and the record provides no basis upon which to conclude — that an accurate recitation of New York sentencing law by Peterson's trial counsel at the first sentencing proceeding would have caused the trial court to permit Peterson to withdraw his plea of guilty. Since Peterson has not demonstrated that, but for his counsel's error, Peterson's guilty plea would have been withdrawn, he has not satisfied the Strickland's prejudice requirement.
Accordingly, Peterson's ineffective assistance of trial counsel claim is without merit, and it is unnecessary to determine whether trial counsel's misstatement of New York law was so deficient as to fall below prevailing professional norms.
b. Appellate Counsel
The Sixth Amendment right to effective assistance of counsel also extends to the prosecution of a direct appeal from a judgment of conviction. See Evitts v. Lucey, 469 U.S. 387, 395-96, 105 S. Ct. 830, 836 (1985). Since appellate counsel is permitted to exercise professional judgment when determining which issue(s) to pursue on appeal, failure to present every nonfrivolous argument to the appellate court does not constitute ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3312 (1983). Indeed, the Supreme Court has recognized that effective appellate advocacy entails "winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52, 3312-3313.
Peterson contends that the performance of his appellate counsel was constitutionally deficient because counsel did not raise the ineffectiveness of trial counsel on appeal. As discussed above, however, the petitioner's claim of ineffective assistance of trial counsel is without merit. Accordingly, it is unlikely that the outcome of Peterson's appeal would have been different if counsel had raised the issue of ineffective assistance of trial counsel. Therefore, Peterson's ineffective assistance of appellate counsel claim is also without merit.
c. Exhaustion
The respondents contend that Peterson has not exhausted his remedies with respect to his ineffective assistance of counsel claims. Ordinarily, before a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion doctrine, a habeas corpus petitioner must, inter alia, "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye v. Attorney General of New York, 696 F.2d 186, 190-191 n. 3 (2d Cir. 1982) (en banc). However, a district court confronted with a mixed petition may deny the petition on the merits even though it contains an unexhausted claim. Pratt v. Greiner, 306 F.3d 1190, 1196-97 (2d Cir. 2002) (citing 28 U.S.C. § 2254(b)(2) ["An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."]).
For the reasons noted above, Peterson's ineffective assistance of counsel claims lack merit. Therefore, in the interests of judicial economy and prompt resolution of the case at bar, they may be disposed of in this court in accordance with 28 U.S.C. § 2254(b)(2).
Delay in Imposition of Sentence
The Supreme Court has established that the right to a speedy trial is a "fundamental" right under the Sixth Amendment, and is made applicable to the States by the due process clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 993 (1967). No fixed period is set forth in the Constitution within which a trial is necessarily considered timely. See Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188 (1972). However, a court must balance the following factors to determine whether a violation of the right to a speedy trial has occurred: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant. See Barker, 407 U.S. at 530, 92 S. Ct. at 2192. None of these factors is necessary or sufficient to demonstrate that a speedy trial violation has occurred; the factors are related and must be considered "together with such other circumstances as may be relevant."Id.
The Supreme Court has assumed — but has not held — that "sentence is part of the trial for purposes of the Sixth Amendment." Pollard v. U.S., 352 U.S. 354, 361, 77 S. Ct. 481, 486 (1957). Only the holdings, as opposed to the dicta, of the Supreme Court's decisions provide a basis for habeas corpus relief under § 2254. See Williams, 529 U.S. at 412, 120 S. Ct. at 1523. Therefore, a state court's failure to apply the protections of the Speedy Trial Clause to sentencing delay may be the basis for habeas corpus relief only if it constitutes an unreasonable failure to extend the principles of Supreme Court speedy trial decisions to a situation in which they "should have, in reason, governed." Kennaugh, 289 F.3d at 45.
In the case at bar, Peterson contended on direct appeal that the delay in sentencing violated both his state and federal speedy trial rights, and that dismissal of the indictment upon which he was convicted was, therefore, required by both state and federal law. The Appellate Division addressed these contentions collectively by applying a rule of New York law, set forth inPeople v. Drake, 61 N.Y.2d 359, 474 N.Y.S.2d 276 (1984). UnderDrake, it is only "unexcusable delay" that requires the dismissal of charges against a criminal defendant. Id. at 366, 279. The New York Court of Appeals explained that:
[W]hether dismissal is warranted depends upon the length of the delay and the reasons for it. Generally, where the delay is long and unexplained, the courts will hold it unreasonable. . . . Conversely, where the delay is not protracted and plausible reasons are offered to explain it, the courts hold that it is not unreasonable. When there has been an extended delay and there are plausible reasons for it, the various factors involved must be balanced. . . . [T]he New York rule assumes the defendant has been prejudiced by unreasonable delay. . . . He need not prove it. Nor is he required to take affirmative measures and demand that the court sentence him.Id. at 366-67, 280.
This standard differs in some respects from that set forth in the Supreme Court's speedy trial decisions. For example, underBarker, a claim that sentencing was unconstitutionally delayed may be bolstered by a defendant's diligent assertion of his right, or undermined by his failure to do so. Barker, 407 U.S. at 529, 531-32, 92 S. Ct. at 2192-93. The New York rule, on the other hand, does not appear to give strong (or possibly any) weight to this factor. See Drake, 61 N.Y.2d at 367, 474 N.Y.S.2d at 280. Indeed, it does not appear that Peterson's numerous attempts to secure a prompt and final imposition of sentence were a significant factor in the Appellate Division's analysis in disposing of his appeal.
The Supreme Court's speedy trial decisions also do not excuse delay simply because it was caused by one state actor rather than another; the responsibility to ensure that a criminal prosecution proceeds expeditiously is borne by the government as a whole, including both the court system and the prosecution. Barker, 407 U.S. at 529-530, 92 S. Ct. at 2192. Accordingly, consideration of negligence by the prosecution or other state actors — a significant factor in the case at bar — is required. However, in analyzing Peterson's sentencing delay, the Appellate Division determined that the delay was reasonable because the trial court "made diligent and persistent attempts to effectuate the terms of the plea bargain." People v. Peterson, 264 A.D.2d at 576, 695 N.Y.S.2d at 552. It follows that the Appellate Division either did not consider the negligence of the prosecution in failing to return Peterson to state court for sentencing timely, or else excused that failure because it was not caused by neglect on the part of the trial court.
Furthermore, in adjudicating Peterson's claim, the Appellate Division stated that "[t]here is no legal basis for dismissal of the indictment as 'compensation' for the eight-month delay" of Peterson's conditional release. People v. Peterson, 264 A.D.2d at 576, 695 N.Y.S.2d at 553. The Speedy Trial Clause provides just such a basis for dismissal of an indictment when a defendant is prejudiced by a delay in prosecution, as Peterson contended he was. See Barker, 407 U.S. at 522, 92 S. Ct. at 2188.
For these reasons, it is clear that the Appellate Division, although analyzing factors similar to those set forth inBarker, did not apply the Supreme Court's speedy trial decisional law to Peterson's claim that his sentencing was unconstitutionally delayed. Accordingly, it must be determined: (a) whether it was reasonable for the Appellate Division not to apply the holdings of the Supreme Court's speedy trial decisions to Peterson's claim of sentencing delay; and (b) if so, whether those holdings entitle Peterson to relief.
a. Reasonability of Failure to Apply Speedy Trial Guarantee to Sentencing Delay
It is the independent obligation of "lower federal courts . . . to say what the law is under governing Supreme Court precedents."Kennaugh, 289 F.3d at 42 (internal quotation marks omitted) (citing Morris v. Reynolds, 264 F.3d 38, 46 [2d Cir. 2001]). "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). To determine whether it is reasonable not to apply such a rule or generalized standard to a particular situation, a court may consider whether application of the rule or standard in that situation is: (1) reasonably necessary to avoid the constitutional harm(s) the rule or standard is designed to prevent; and (2) is supported by the decisions of the Second Circuit and other circuit courts. Cf. Kennaugh, 289 F.3d at 46.
"'Whether delay in completing a prosecution . . . amounts to an unconstitutional deprivation of rights depends upon the circumstances. . . . The delay must not be purposeful or oppressive.'" United States v. Ewell, 383 U.S. 116, 120, 86 S. Ct. 773, 776 (1966) (quoting Pollard, 352 U.S. at 361, 77 S. Ct. at 486). In particular, the Supreme Court has identified three "interests of defendants which the speedy trial right was designed to protect[:] (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." Barker, 407 U.S. at 532, 92 S. Ct. at 2193. Of those interests, the most serious is the third. Id. As a general matter, any of these interests may be implicated by sentencing delay, since such a delay generally will delay the perfection of an appeal and any re-trial that might be necessary upon reversal. Drake, 61 N.Y.2d at 365, 474 N.Y.S.2d at 279.
In the case at bar, Peterson's interest in avoiding oppressive incarceration clearly was implicated. The delay in the final imposition of sentence upon him was so extended that his actual period of incarceration following the entry of his guilty plea was eight months longer than that called for by the sentence he was to receive. The delay in imposition of sentence reduced the extent to which Peterson's state and federal sentences could run concurrently, a harm that is encompassed by the interest in avoiding oppressive incarceration. See Smith v. Hooey, 393 U.S. 374, 378, 89 S. Ct. 575, 577 (1969) (speedy trial prevents undue and oppressive incarceration by minimizing the risk that a defendant who is already incarcerated will lose the opportunity to "receive a sentence at least partially concurrent with the one he is serving"). Therefore, the circumstances underlying Peterson's speedy trial claim clearly implicate one of the harms the Speedy Trial Clause and the Supreme Court's pertinent holdings are designed to prevent.
In the nearly fifty years since Pollard was decided, every circuit court that has decided the question — including the Second Circuit — has determined that the constitutional guarantee of a speedy trial applies to the sentencing phase of a criminal prosecution. See United States v. Bryce, 287 F.3d 249, 256 (2d Cir. 2002) ("Courts . . . acknowledge that the Sixth Amendment guarantee to a speedy trial applies to sentencing.") (citing United States v. Tortorello, 391 F.2d 587, 589 [2d Cir. 1968]); Burkett v. Cunningham, 826 F.2d 1208, 1220 (3d Cir. 1987) (For purposes of the constitutional speedy trial guarantee, trial includes the "sentencing phase of prosecution . . . — in other words, until one final, pre-appellate determination has been made as to whether and for how long the accused should be incarcerated."); United States v. Howard, 577 F.2d 269, 270 (5th Cir. 1978) ("The constitutionally guaranteed right to speedy trial applies to sentencing."); United States v. Thomas, 167 F.3d 299, 303 (6th Cir. 1999); Perez v. Sullivan, 793 F.2d 249, 252-58 (10th Cir. 1986) (holding that 15 month delay between guilty plea and imposition of sentence required inquiry into Barker factors);Moore v. Zant, 972 F.2d 318, 320 (11th Cir. 1992) (citingHoward for the proposition that the "constitutionally guaranteed right to speedy trial applies to sentencing," and noting that "all decisions of the former Fifth Circuit Court of Appeals decided before October 1, 1981" were adopted as precedent by the 11th Circuit).
There appears to be a split of authority on this question within the Eighth Circuit. In one case, that court declined expressly to decide the question. See Brooks v. United States, 423 F.2d 1149, 1151 (8th Cir. 1970). However, in a subsequent case, the court held that a 19 month delay between the conclusion of testimony and the entry of judgment in a criminal trial was presumptively prejudicial and required an inquiry into the Barker factors. See United States v. Habhab, 132 F.3d 410, 416 (8th Cir. 1997).
Without deciding the question, the First, Fourth, Ninth and District of Columbia Circuits have assumed that sentencing is part of trial for the purposes of the Sixth Amendment. See United States v. Nelson-Rodriguez, 319 F.3d 12, 60 (1st Cir. 2003); Brady v. Superintendent, 443 F.2d 1307, 1310 (4th Cir. 1971); United States v. Martinez, 837 F.2d 861, 866 (9th Cir. 1988) ("This court has treated the imposition of sentence as within the speedy trial guarantee . . . but has refrained from explicitly recognizing it as such."); United States v. Gibson, 353 F.3d 21, 27 (D.C. Cir. 2003).
In light of the foregoing, the Court finds that the failure to apply the holdings of the Supreme Court's speedy trial decisions to Peterson's claim of sentencing delay is an unreasonable application of federal law. Accordingly, it is appropriate to consider the merits of Peterson's speedy trial claim.
b. Application of Barker Factors
The first Barker factor, delay, presents a double inquiry.Doggett v. United States, 505 U.S. 647, 651-52, 112 S Ct. 2686, 2690-91 (1992). In order to trigger a speedy trial analysis, a defendant must show a delay that is sufficiently great to be deemed "presumptively prejudicial." Id. Post-accusation delay has generally been found presumptively prejudicial "at least as it approaches one year." Id. at 652 n. 1, 2691 n. 1. Once such a delay is shown, "the court must then consider, as one factor among many, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim." Id. at 652, 2691. When the reason for the delay is a "reason such as negligence [by the government] or overcrowded courts," the second Barker factor also weighs in favor of a defendant asserting a speedy trial claim, "since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant."Barker, 407 U.S. at 531, 92 S. Ct. at 2192. A defendant's efforts to assert of his speedy trial right, the third Barker factor, are "entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." Id. at 531-32, 2192-93.
With respect to the first three Barker factors, the factual record in the case at bar is, in pertinent part, the same as that analyzed by your Honor in connection with the 1997 petition. Accordingly, it is sufficient to note that, as your Honor previously determined: (1) the three-and-a-half year delay between Peterson's arrest and the third and final imposition of Peterson's sentence is, as a threshhold matter, presumptively prejudicial, and also weighs significantly in Peterson's favor as a factor in the Barker balancing test; (2) the delay in the imposition of sentence was not caused by Peterson, but rather by the negligence of the prosecution and other agents of the state; and (3) Peterson took numerous steps during the period of delay to assert his right to the prompt and final resolution of the charges against him. Considered together, the first threeBarker factors weigh in Peterson's favor, and do so just as heavily now as they did before.
Any difference between the outcome of the Barker analysis of the 1997 petition and that of the instant petition must, then, depend upon the fourth factor, prejudice. In adjudicating the 1997 petition, your Honor determined that, as a result of the errors of state actors, Peterson remained confined to a state correctional facility for a period of eight months beyond the date upon which he became entitled to conditional release. The respondent contends that this prejudice should not be considered now, because it was "remedied" by your Honor's decision to grant a writ of habeas corpus to the petitioner in 1998, and because the petitioner has not demonstrated any other prejudice. This contention is without merit. The 1997 decision required that Peterson be released conditionally. The 1997 decision thereby halted the accrual of prejudice, in the form of further unlawful confinement in a correctional facility. The prevention of additional prejudice does not, however, undo or redress the prejudice Peterson had already experienced, namely eight months of unwarranted deprivation of his liberty. Accordingly, the prejudice caused by the delays in sentencing must be counted in Peterson's favor under the Barker analysis.
Neither party has identified any "other [relevant] circumstances" that would support a different outcome. Cf. Barker, 407 U.S. at 533, 92 S. Ct. 2193.
Taken together, the factors discussed above warrant a finding that Peterson's speedy trial right was violated. Consequently, habeas corpus relief is warranted with respect to this claim.
Inconsistency of State and Federal Court Determinations
Peterson's contention, that the determinations of the Appellate Division were inconsistent with those made by your Honor in connection with the speedy trial claim presented in Peterson's 1997 petition, is, in substance, a claim of preclusion. The doctrines of res judicata and collateral estoppel govern the preclusive effect of prior litigation. Under the doctrine ofres judicata, "a final judgment on the merits of an action precludes the parties or their privities from relitigating issues that were or could have been raised in that action. . . . Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 414-415 (1980). A determination of an issue by a federal court may, pursuant to these doctrines, have preclusive effect upon any subsequent litigation of the same issue in state court. See, e.g., Stoll v. Gottlieb, 305 U.S. 165, 170, 59 S. Ct. 134, 136-37 (1938).
In the case at bar, Peterson has not presented any claim of preclusion to the New York courts. Although footnotes to Peterson's appellate briefs make references to the 1997 habeas corpus decision, there is no contention in the appellate briefs that the Appellate Division was bound by any specific, previously-adjudicated issue of fact or law. Under these circumstances, it cannot be said that Peterson's claim of preclusion was fairly presented to the state courts. Therefore, this ground of the instant petition is unexhausted.
The petitioner is now procedurally barred from seeking state review of his claim of preclusion. See N.Y. Criminal Procedure Law § 440.10(2)(c); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Therefore, the claim may be reviewed in this court only upon a showing by the petitioner of cause for the default and prejudice to him, or of a fundamental miscarriage of justice that would attend if the claim were not reviewed. See Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S. Ct. 2497, 2506-09 (1977). A habeas corpus petitioner may demonstrate cause for a procedural default by "showing that the factual or legal basis for a claim was not reasonably available to counsel . . . or that 'some interference by officials,' made compliance impracticable . . . [or that] the procedural default is the result of ineffective assistance of counsel." Murray v. Carrier, 477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986). A fundamental miscarriage of justice exists where a person has been convicted who is "actually innocent." See Murray, 477 U.S. at 496, 106 S. Ct. at 2649. In this case, Peterson has not identified any cause for his failure to present a claim of preclusion to the Appellate Division. Nor has he demonstrated that he is actually innocent of the offenses for which he was convicted. Accordingly, the claim is procedurally barred and, therefore, may not be reviewed by this court.
In light of the foregoing, Peterson's claim of preclusion cannot be the basis for habeas corpus relief.
IV. RECOMMENDATION
For the reasons set forth above, the petitioner's application for a writ of habeas corpus should be granted, in part, and denied, in part. Accordingly, the petitioner should be released from any remaining constraints upon his liberty that stem from the judgment of conviction in the underlying case.
V. 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 Court, with courtesy copies delivered to the chambers of the Honorable Robert P. Patterson, 500 Pearl Street, Room 2550, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Patterson. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); 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).