869 F.2d 87 | 2d Cir. | 1989
Lead Opinion
William C. Quick, as superintendent of the Wallkill Correctional Facility, appeals from a judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, J., granting Charles Parron’s amended petition for a writ of habeas corpus. Parrón was convicted in the New York state courts in September 1979 of attempted murder in the second degree with two counts of assault in the first degree. The district court granted the writ on the ground that Parrón was denied effective assistance of counsel because his trial counsel failed to move in timely fashion to dismiss the indictment against him on speedy trial grounds.
The state trial court denied the motion alternatively on procedural grounds, N.Y. Crim.P.Law §§ 210.20(l)(g) & (2) — because Parrón did not raise the objection before trial, and on substantive grounds, N.Y. Crim.P.Law § 30.30(l)(a) — because according to the trial court’s calculations, the prosecution did not delay the proceedings for longer than the period allowed under the statute. The Appellate Division affirmed without opinion, 86 A.D.2d 784, 449 N.Y.S.2d 124 (1st Dep’t 1982), and the New York Court of Appeals denied Parrón leave to appeal, 56 N.Y.2d 598, 450 N.Y.S.2d 1034, 435 N.E.2d 1107 (1982) (Gabrielli, J.).
In November 1983, Parrón filed a petition for a writ of habeas corpus in the federal district court, alleging, among other things, that he was denied his federal constitutional right to a speedy trial. The federal district court denied the writ because trial counsel’s failure to file a timely speedy trial motion constituted procedural default under state law and was an adequate and independent state ground for decision that barred federal habeas review, citing Engle v. Isaac, 456 U.S. 107, 128-29, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) and Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977). Parrón appealed from that decision, and, while the appeal was pending in this court,. the parties stipulated to a remand to allow Parrón to amend his federal habeas corpus petition. In November 1986, Parrón filed an amended petition in the district court, this time based on a claim of ineffective assistance of counsel. He contended that he had been denied effective assistance of counsel at his state court trial because his attorney failed to make a timely speedy trial motion.
The district court referred the case to Magistrate Michael H. Dolinger, who ordered an evidentiary hearing. After the hearing, the magistrate found that Parrón had exhausted his constitutional claim of ineffective assistance of counsel in the state court, and reached the merits of that claim. The magistrate refused to defer under 28 U.S.C. § 2254(d) to the findings of the state trial court on the merits of the speedy trial issue under state law because he found the findings to be based on an inadequate record, and found that the prosecution had exceeded the period of excusable delay under the New York statute. The magistrate recommended to the district court that the writ be granted because a timely speedy trial action would have resulted in dismissal of the indictment, and failure by petitioner’s trial counsel to make such a motion constituted ineffective assistance. The magistrate was aware, of course, that the state trial judge had denied the speedy trial motion on the merits, as well as on procedural grounds, but assumed that the Appellate Division would have reversed denial of such a motion timely made. The magistrate further concluded that the issue of ineffective assistance was presented to the Appellate Division but that the Appellate Division affirmed the trial court on that issue on procedural grounds rather than on the merits. The district court adopted the magistrate’s report in its entirety.
Discussion
The state’s first claim to us is that the district court should not have reached the merits of Parron’s constitutional claim of ineffective assistance of counsel because it has not been presented in state court. The state therefore asks us to reverse the
We are troubled by the magistrate’s conclusion regarding exhaustion because it appears that the claim was presented to the Appellate Division only by implication, if at all. In his report, the magistrate wrote:
Although the ineffective assistance argument appeared in a portion of the appellate brief that was devoted to the petitioner’s speedy trial claim and it was offered principally as a basis for excusing the untimeliness of the post-trial dismissal motion, this does not alter the fact that the Appellate Division was on notice that Parrón had a potential Sixth Amendment claim and was in fact asserting it.
Thus, the magistrate found that the claim was presented only indirectly. Moreover, the magistrate noted elsewhere that “there is no reason to assume that the Appellate Division ever considered the question of whether counsel was ineffective as a predicate of the speedy trial claim.”
Moreover, we believe that if the claim of ineffective assistance was exhausted, then Parron’s habeas petition must be denied. To succeed on a claim of ineffective assistance, a defendant must show not only that counsel’s performance was deficient but also that the deficiency prejudiced him. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In this case, Parrón would have to establish not only that his counsel failed to bring a timely speedy trial motion but also that the delay harmed Parrón. It must be remembered that the motion was brought, albeit after trial and by new counsel, and that the state trial judge did deny it on substantive as well as procedural grounds. If the Appellate Division thereafter considered the speedy trial motion on the merits, then the failure of Parron’s former counsel to move earlier did not harm Parrón. In other words, on that assumption, Parrón received all that he was constitutionally entitled to obtain from counsel, old and new. (There is no claim that the latter was inadequate). It is true that the trial judge may have erred in denying the motion, as the magistrate thought, and that the Appellate Division may have erred in affirming on the merits of that issue, but that is constitutionally irrelevant. The Constitution does not guarantee Parrón success on the speedy trial claim. He was entitled to effective assistance of counsel, not to error-free state court decisions on issues of state law.
Therefore, the key question is whether the Appellate Division did consider the speedy trial claim on the merits. As indicated earlier, the magistrate concluded that the Appellate Division did not do so, assuming that if it had, it would have reversed the trial judge and granted the motion. However, we believe that if we hold that the ineffective assistance claim was exhausted, we must also hold that the Appellate Division did consider and reject the speedy trial claim on the merits. Our reasoning is as follows.
Because the Appellate Division affirmed Parron’s conviction without opinion, it is impossible for us to know exactly what the Appellate Division decided, and the basis for its decision. However, depending upon the nature of the claim presented to the Appellate Division, we can make certain presumptions regarding the summary affirmance. Under New York law, the right to a speedy trial is waived by failure to make a timely motion preserving such right. See People v. White, 2 N.Y.2d 220, 225, 159 N.Y.S.2d 168, 140 N.E.2d 258 cert. denied, 353 U.S. 969, 77 S.Ct. 1061, 1 L.Ed.2d 1133 (1957). In contrast, the right to effective assistance of counsel is a fun
As indicated above, on the ineffective counsel claim, Parrón had to show that his counsel was deficient and that this prejudiced him. It is clear that his counsel failed to make a timely speedy trial motion and that there was no excuse for not doing so because at the very least the issue was a close one. The magistrate justifiably found on the evidence before him that counsel’s failure to move sooner was not a strategic decision. And, in the state court proceeding, the claim was never made that counsel's failure to move in timely fashion was strategic. The trial court did not consider such a theory. And, in the Appellate Division the only argument the prosecution made on the merits was that the trial judge had correctly found that the prosecution had complied with the New York statute. It follows that counsel’s failure to move earlier was a clearly deficient performance, and if a timely speedy trial motion would have been granted, then prejudice to Par-rón is clear: violation of N.Y.Crim.P.Law § 30.30 requires dismissal of the indictment. Therefore, on the theory that the claim of ineffective assistance was presented to the Appellate Division and denied on the merits, the Appellate Division must have ruled that the underlying speedy trial claim had no merit since that could be the only reason for denying the claim of ineffective assistance. On that hypothesis, the federal court would be bound by the decision of the Appellate Division — even if it was erroneous — on the merits of the New York statutory speedy trial issue since that is purely a question of state law. This would necessarily dispose of the ineffective assistance of counsel claim, because Parrón was not prejudiced.
On the other hand, if — as seems much more likely — the only claim presented to the Appellate Division was the speedy trial claim, a different presumption applies. As indicated above, such a claim does not, under New York law, allege loss of a fundamental right, and under our decision in Martinez v. Harris, 675 F.2d 51, 54 (2d Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982), we should then presume that the Appellate Division’s silent affirmance of the state trial court was based on procedural default. On that assumption, the Appellate Division did not rule on the merits of the speedy trial issue under New York law, and thus that question remains open. Under this more likely theory, Parrón has not as yet exhausted his state court remedies on the claim of ineffective assistance of counsel.
In these circumstances, we refuse to hold that Parrón has exhausted his claim of ineffective assistance of counsel. There is no evidence that the Appellate Division considered that claim and little proof that the claim was presented to it. Petitioner sought reversal of his conviction in the Appellate Division on speedy trial grounds, rather than on ineffective assistance grounds, merely noting that it was his counsel’s fault that no motion had been made prior to trial. A federal claim is considered exhausted only if the factual and legal premises have been fairly presented to the state court. See Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971); Daye v.
Judgment vacated and case remanded with instructions to dismiss the petition.
Concurrence Opinion
concurring:
I concur in the vacation of the order of the district court, which order had granted Parron’s petition for a writ of habeas corpus, and in the instructions to dismiss the petition, for the reasons stated in Judge Feinberg’s opinion. The state courts never addressed and decided Parron’s claim that the incompetence of his counsel resulted in the denial of his Sixth Amendment rights.
I disagree with my colleages, however, to the extent that their opinion implies that the record supports the magistrate’s finding that the state courts on appeal would have dismissed the indictment for failure to grant Parrón a speedy trial in accordance with the state speedy trial statute. In my view, our action today should permit of no inference that we agree with the magistrate’s conclusions, nor should it be inferred that we found any merit in the magistrate’s further conclusion, also adopted by the district court, that counsel’s failure to press the claim demonstrated counsel’s incompetence, thus violating Parron’s Sixth Amendment rights. My own study of the record before us leads me to the conclusion that the magistrate’s conclusions are not supported by the evidence.
