Summary
noting that pursuant to Federal Rule of Civil Procedure 81, the Federal Rules of Civil Procedure apply to habeas cases to the extent they are not inconsistent with the 2254 Rules
Summary of this case from Halstead v. McKinneyOpinion
02 Civ. 9335 (WHP)(JCF)
October 22, 2003
REPORT AND RECOMMENDATION
Scott McLeod also known as James Brown, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, Bronx County for criminal possession of a controlled substance in the second degree. In his petition, Mr. McLeod claims (1) that he was denied equal protection under the Fourteenth Amendment because the trial judge failed to conduct a proper analysis of the prosecution's peremptory challenges of African-American jurors, in violation of Batson v. Kentucky, 476 U.S. 79 (1986); and (2) that his "speedy trial motion," based on (a) the prosecution's six-month delay in answering his omnibus motion, which ultimately led to a delay in the release of the grand jury transcript, and (b) the adjournment of trial for over 140 days due to an injury to a prosecution witness, was unfairly denied. The respondent has submitted a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2244(d)(1), claiming that the petitioner failed to commence the proceeding within the statute of limitations and is not entitled to equitable tolling. The respondent also answered the petition on the merits. For the following reasons, I recommend that the respondent's motion to dismiss be denied and that the petition for habeas corpus be denied.
Background
The petitioner was arrested on September 3, 1997, after a traffic stop by Sergeant Ernest Lungaro and Officer Daniel Wood, who were on patrol in the Bronx. (App. Br. at 8; Resp. Br. at 3-4). While sitting in a marked patrol car alongside the intersection of University Avenue and the Cross Bronx Expressway, the officers observed one or both of the occupants of a gray Mazda drinking bottles of beer. (App. Br. at 8; Resp. Br. at 3-4). The officers followed the car and eventually pulled the driver over for driving with an open container of alcohol. (App. Br. at 8; Resp. Br. at 4). After stopping the car, the officers observed the petitioner, who was the passenger, putting something into the waistband of his pants. (App. Br. at 8; Resp. Br. at 4). Sergeant Lungaro pulled Mr. McLeod out of the car and removed two plastic bags of cocaine from inside the zipper of Mr. McLeod's pants. (App. Br. at 8; Resp. Br. at 4-5). The driver of the car, Sherlan Adams, was searched and was found to be holding three bags of marijuana. (Resp. Br. at 5). Belinda Estaris, a chemist for the New York City Police Department, analyzed the substance inside the two bags found on the defendant. She determined that the bags contained cocaine and crack cocaine weighing three ounces plus 93.4 grains. (App. Br. at 10-11; Resp. Br. at 5 n. 2).
"App. Br." refers to the Appellant's Brief, filed by the petitioner in support of his appeal to the New York State Supreme Court Appellate Division, First Department. "Resp. Br." refers to Respondent's Brief, filed in opposition to Mr. McLeod's appeal. The transcripts of the state court proceedings were ordered by the respondent on several occasions, but were never produced. Since the facts of the underlying conviction are not in dispute, I will refer to the facts as set forth in the parties' briefs. See Rules Governing Section 2254 Cases in the United States District Courts, Rule 5 ("If a transcript is neither available nor procurable, a narrative summary of the evidence may be submitted.");Douglas v. Portuondo, 232 F. Supp.2d 106, 108 n. 1 (S.D.N.Y. 2002);Rodricruez v. Fischer, No. 01 Civ. 3993, 2002 WL 1492118, at *1 n. 1 (S.D.N.Y. July 11, 2002).
Prior to trial, Mr. McLeod moved pursuant to New York Criminal Procedure Law ("CPL") § 30.30 to dismiss the indictment on the ground that the prosecution was not ready to proceed to trial within six months of the commencement of the criminal action. (Notice of Omnibus Motion dated November 9, 1998, attached as Exh. 7 to Affidavit in Opposition ("Opp. Aff."). The petitioner claimed that since he had filed an omnibus motion on October 23, 1997, the prosecution was obligated to respond by November 30, 1997, but in fact it did not respond until May 1998. (Opp. Aff., Exh. 7 ¶ 3-4). Mr. McLeod claimed that those 151 days should be "includable" for speedy trial purposes, along with the seven days between his Criminal Court arraignment on September 4, 1997, and his Supreme Court arraignment on September 10, 1997, and the 140 days the prosecution received as an adjournment of the pre-trial hearing between June 22, 1998 and November 9, 1998. (Opp. Aff., Exh. 7 ¶¶ 4-10). The petitioner also objected to the lack of evidence tendered by the prosecution to support its claim that a physical injury suffered by Officer Wood was the reason for the delay. (Opp. Aff., Exh. 7 ¶ 13).
During a pre-trial suppression hearing conducted on November 12, 1998, Justice Gerald Sheindlin questioned Officer Wood about his injuries. Officer Wood testified that he had ruptured a bleep tendon on May 12, 1998, and was unable to return to duty until November 8, 1998. (App. Br. at 3; Resp. Br. at 15). The court found that the trial could not have gone forward without Officer Wood, and that the period he was out because of his injuries was excludable on the grounds of "extraordinary and unusual circumstances." (App. Br. at 4; Resp. Br. at 15). In a short decision dated November 12, 1998, the court denied Mr. McLeod's speedy trial motion, stating that "[l]ess than the time period allowed has been expended. This court determines that the time period from May 1998 until Nov. 9, 1998 is excludable due to extraordinary circumstances, to wit: the injuries suffered by the arresting officer." (App. Br. at 5; Resp. Br. at 16).
The hearing on November 12, 1998 was held pursuant to Mapp v. Ohio, 367 U.S. 643 (1961), to determine the admissibility of the drugs recovered from Mr. McLeod. The court denied Mr. McLeod's pretrial suppression motion in its entirety. (Resp. Br. at 3).
During jury selection, the trial court judge noted sua sponte that the prosecutor had consecutively challenged seven African-American members of the venire. (App. Br. at 6). The court asked the prosecutor to give his reasons for challenging potential jurors, identified as Ms. Holden, Ms. Smith, Mr. Douglas, Ms. Hill, Ms. McLeod, Ms. Polite, and Ms. Harris. (App. Br. at 6; Resp. Br. at 24). The prosecutor first explained that he always challenged people employed as either teachers or social workers, since it was his view that individuals with such occupations tended to hold views that were favorable to the defense. (App. Br. at 6; Memorandum of Law attached to Affidavit in Opposition to Habeas Petition ("Opp. Memo.") at 4). Accordingly, he claimed that he challenged Ms. Holden because she was a teacher, Mr. Douglas because his wife worked with disabled children, and Ms. Polite and Ms. McLeod because they were both social workers. (App. Br. at 6; Resp. Br. at 25). The prosecutor stated that he struck Ms. Harris because her sister was in rehabilitation for crack cocaine, and Ms. Hill because she failed to make eye contact with him during the questioning. (App. Br. at 6; Resp. Br. at 25-26). In regard to Ms. Smith, he admitted that he did not have a reason, stating that "I just didn't feel like picking her for the jury." (App. Br. at 6; Resp. Br. at 25). The court allowed the peremptory challenges to Ms. Harris and Ms. Polite, finding that the reasons proffered were neutral, but he did not allow the remaining challenges. The judge informed the parties that he would have Ms. McLeod, Ms. Hill, Ms. Smith, Ms. Holden, and Mr. Douglas return the following day to join the new panel. He went on to say that "if I see the pattern is continuing, then I'll put two of those people on as the regular jurors, and maybe even put the others on as alternates." (App. Br. at 6-7; Opp. Memo, at 5). The prosecutor ultimately withdrew his peremptory challenges to Ms. Smith, Ms. Holden, and Mr. Douglas, thereby leaving Ms. Hill and Ms. McLeod in the panel of potential jurors. (App. Br. at 7; Opp. Memo, at 5). Defense counsel then peremptorily challenged Ms. Smith and Mr. Douglas. (App. Br. at 7; Opp. Memo, at 5). Ms. Holden became juror number eleven.
During the trial, the court further explained its decision concerning jury selection:
I made my own objection based on Batson as to [the prosecutor's] challenging. I then determined, I don't know if the record is clear, that after [the prosecutor] went through his last three peremptories, that there's no longer a Batson issue. Therefore, there's no longer a Batson issue because by withdrawing his last three peremptory challenges, which he's permitted to do, the pattern no longer existed. He gave reasons for the jurors he challenged, other than the last three. So as to those three jurors, there is not a Batson issue, on those three jurors. [The prosecutor] did not challenge any of them. [Defense counsel] then challenged two of those three and the third juror became a juror. So as to those three, the Batson issue was resolved.
(App. Br. at 7; Opp. Memo, at 5). The jury found Mr. McLeod guilty of Criminal Sale of a Controlled Substance in the Second Degree in violation of New York Penal Law § 220.18(1), and on December 24, 1998, judgment was entered, sentencing him to an indeterminate term of imprisonment of six years to life. (App. Br. at 1).
Mr. McLeod appealed his conviction to the Appellate Division, First Department, claiming that the trial court improperly denied his speedy trial motion, and that his federal and state constitutional rights to due process were violated by the court's failure to conduct a Batson analysis. (App. Br. at 14-30). The Appellate Division unanimously affirmed Mr. McLeod's conviction on March 27, 2001. People v. McLeod, 281 A.D.2d 325, 722 N.Y.S.2d 507 (1st Dep't 2001). Mr. McLeod's application for leave to appeal to the Court of Appeals was denied on July 5, 2001. People v. McLeod, 96 N.Y.2d 899, 730 N.Y.S.2d 796 (2001). He then filed the instant undated petition, which was received by the Pro Se Office of this Court on October 8, 2002.
Motion to Dismiss
A. Standard of Review
The respondent's motion to dismiss Mr. McLeod's petition is governed by the Federal Rules of Civil Procedure and by 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The Federal Rules of Civil Procedure apply in the context of habeas cases to the extent that they are not inconsistent with the Rules Governing Section 2254 Cases in the United States District Courts ("2254 Rules"). See Fed.R.Civ.P. 81(a)(2) ("These rules are applicable to proceedings for. habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States [or] the Rules Governing Section 2254 Cases . . . and has heretofore conformed to the practice in civil actions."). Motions to dismiss habeas petitions on procedural grounds pursuant to Rule 12(b)(6) are proper under the 2254 Rules. See Williams v. Breslin, 274 F. Supp.2d 421, 424-25 (S.D.N.Y. 2003) (motion to dismiss habeas petition under Rule 12(b)(6) not inconsistent with habeas rules); Purdv v. Bennett, 214 F. Supp.2d 348, 353 (S.D.N.Y. 2002) (rejecting a challenge to the applicability of Rule 12(b)(6) motions to habeas corpus proceedings).
B. Timeliness of the Motion
The AEDPA imposes a one-year limitations period on federal habeas corpus applications by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). The one-year period runs from the latest of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.Id.
Here, Mr. McLeod's application for leave to appeal his conviction to the New York Court of Appeals was denied on July 5, 2001. His conviction therefore became final on October 3, 2001, when the 90-day period within which he could have applied for a writ of certiorari from the United States Supreme Court expired. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (conviction is final for § 2244(d)(1)(A) purposes upon completion of direct state appellate review, and either completion of U.S. Supreme Court certiorari proceedings or expiration of time to seek review via such proceedings). Accordingly, Mr. McLeod had until October 3, 2002, to file his petition. A prisoner appearing pro se satisfies the time limit for filing a petition if he delivers the notice to prison officials within the time specified. See Houston v. Lack, 487 U.S. 266, 276 (1988). This "prison mailbox" rule is justified by the litigant's dependence on the prison mail system and lack of counsel to assure timely filing with the court. See id. at 270-71, 273-74.
Here, there is a dispute among the parties as to which day the petitioner gave his petition to prison officials to be mailed. The respondent claims that Mr. McLeod gave his petition to prison officials on October 4, 2002, who then mailed it out that same day. (Affidavit in Support of Motion to Dismiss dated May 6, 2003 ("Resp. Aff.") ¶ 9). The respondent contacted Debbie Swierk, Senior Mail and Supply Clerk of Lakeview Correctional Facility, who explained that prison mail is mailed on the day it is received by prison officials and does not remain at the facility overnight. (Resp. Aff. SI 9). Ms. Swierk further stated that all mail is catalogued in the mail log, which in this case indicates that Mr. McLeod sent a letter with postage of $1.29 to this Court on October 4, 2002. (Resp. Aff. ¶ 9). The respondent points to the admittedly faint postmark on Mr. McLeod's petition as further indication that it was mailed on October 4, 2002. (Resp. Aff. ¶ 10 Exh. 6). In response, Mr. McLeod claims that he gave his petition to prison authorities on October 3, 2002. (Petitioner's Letter in Lieu of Motion in Opposition of Motion to Dismiss dated June 27, 2003 ("Pet. Opp. Letter") ¶ 5). In further support of his claim, Mr. McLeod provides the Court with an inmate grievance complaint he filed on October 17, 2002, where he complains about the prison mail system in general, and specifically states that he has not been receiving mail in a timely fashion. (Inmate Grievance Complaint dated Oct. 17, 2002, attached to Pet. Opp. Letter).
Although both the envelope the petition was mailed in and the mail log kept by the prison facility indicate that the petition was mailed on October 4, 2002, it does not squarely resolve the question of which day Mr. McLeod actually gave his petition to prison authorities to be mailed. Since that is the pertinent date, the matter should be resolved in Mr. McLeod's favor in the absence of further proof. See Adams v. Greiner, 272 F. Supp.2d 269, 272 n. 2 (S.D.N.Y. 2003) (resolving ambiguity over date petition was presented to prison officals in favor ofpro se petitioner). Presuming that the application was turned over to prison authorities on October 3, 2002, Mr. McLeod's application is timely. Therefore, the respondent's motion to dismiss should be denied.
Habeas Petition
It is now proper to turn to the habeas petition itself.
A. Batson Claim
Mr. McLeod claims that the trial court did not conduct a proper Batson analysis because the judge failed to determine whether the prosecutor's "proffered race neutral explanation" for seven consecutive peremptory challenges against black jurors was "merely a designed disguise of discriminatory intent." (Habeas Petition at 5). The respondent asserts that since the Appellate Division found that Mr. McLeod's failure to bring this claim to the attention of the trial court rendered his claim unpreserved for appellate review, federal habeas review is barred.
In the review of a state court judgment, the independent and adequate state grounds doctrine "applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement." Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). Federal courts may not review a state court conviction that rests on an independent and adequate state ground unless the petitioner can show cause and prejudice or a fundamental miscarriage of justice. Fama v. Commissioner of Correctional Services, 235 F.3d 804, 809 (2d Cir. 2000); Harris v. Reed, 489 U.S. 255, 262 (1989). If the state court states "clearly and expressly" that its judgment rests independently on a state procedural bar, no federal court may review the forfeited claim. Harris, 489 U.S. at 263 (citation omitted); accord Fama, 235 F.3d at 809.
Here, Mr. McLeod appealed his case in state court on the ground that the trial court failed to conduct a proper Batson analysis. See McLeod, 281 A.D.2d at 326-27, 722 N.Y.S.2d at 508-09. This argument also forms the first basis for Mr. McLeod's present petition. The Appellate Division rejected the petitioner's claim because it had not been preserved for appellate review. Id. The Appellate Division found that Mr. McLeod could not appeal the trial court's Batson protocol because he did not make a timely objection on the record. Id.; see also People v. Turriago, 90 N.Y.2d 77, 83, 659 N.Y.S.2d 183, 186 (1997) (finding that a question of law is preserved for purposes of an appeal "if in response to a protest by a party, the court expressly decided [that] question") (quoting CPL § 470.05) (emphasis in original). The Appellate Division stated that "[i]n the absence of a particularized objection to the adequacy of the remedial measures adopted by the court in response to the Batson issue (raised sua sponte), the issue is unpreserved for appellate review . . . and we decline to reach it in the interest of justice." McLeod, 281 A.D.2d at 326, 722 N.Y.S.2d at 508-09. Accordingly, it appears that Mr. McLeod's current claim was denied by the state court on an independent and adequate state procedural ground — his failure to comply with New York's contemporaneous objection rule, CPL § 470.05.
A procedural bar will be deemed "adequate" only if it is "firmly established and regularly followed." Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)). On habeas review, courts should "defer to findings of procedural default as long as they are supported by a fair or substantial basis in state law." Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999) (internal quotes and citation omitted). Under Batson, peremptory challenges may not be used for the purpose of excluding jurors solely on the basis of race or gender. Batson, 476 U.S. at 86. In order to challenge the prosecution's use of peremptory challenges on Batson grounds, the defendant must make a timely objection to the use of those challenges. See id. at 99. In construing the meaning of a "timely" objection, the Second Circuit has held that "failure to object to the discriminatory use of peremptory challenges prior to the conclusion of jury selection waives the objection." McCrory v. Henderson, 82 F.3d 1243, 1249 (2d Cir. 1996);United States v. Franklvn, No. SI 96 Cr. 1062, 1997 WL 334969, at *2 (S.D.N.Y. June 16, 1997). This general rule also has a fair and substantial basis in New York law. See, e.g., People v. Stephens, 84 N.Y.2d 990, 992, 622 N.Y.S.2d 502, 503 (1994); People v. Swails, 250 A.D.2d 503, 503, 672 N.Y.S.2d 874, 874 (1st Dep't 1998) ("Defendant failed to preserve his current claim that the court did not follow the three-step Batson protocols in determining various claims of discriminatory exercise of peremptory challenges."); People v. Green, 243 A.D.2d 752, 752, 665 N.Y.S.2d 344, 345 (3d Dep't 1997) ("[D]efendant's counsel did not object to the People's peremptory challenge of a black juror in the venire and, thus, defendant failed to preserve his Batson claim for review."); People v. Williams, 206 A.D.2d 917, 917, 614 N.Y.S.2d 842, 842 (4th Dep't 1994) ("Because defense counsel failed to make a Batson challenge until after the jurors, including the alternates, were sworn, his objection was untimely and defendant's contention has not been preserved for review."); cf. Garcia, 188 F.3d at 77-79 (finding that failure to comply with New York's contemporaneous objection rule was independent and adequate ground for state court decision).
Mr. McLeod's counsel did not object to the prosecution's peremptory challenges; rather, it was the trial court who raised theBatson issue. After the trial court made its determination on the Batson issue and announced that it would let two of the seven challenges stand and that it would re-seat five of the potential jurors back into the general panel just in case the perceived "pattern" resurfaced, defense counsel voiced no objection. Defense counsel in no way made it known that he was unhappy with the manner in which the trial court had dealt with the Batson issue, and thus was found by the Appellate Division not to have "objected" in a timely fashion.
Mr. McLeod's petition may nonetheless be heard despite the procedural default if he can show cause for the default and actual prejudice resulting from an alleged violation of federal law. Coleman, 501 U.S. at 749-50. The Supreme Court has defined "cause" as a showing that "`some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court."McCleskev v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Objective factors that constitute cause under this standard include a showing that the factual or legal basis for a claim was not reasonably available and that some interference by officials made compliance impracticable.McCleskev, 499 U.S. at 493-94. The "`cause' . . . must be somethingexternal to the petitioner, something that cannot fairly be attributable to him." Coleman, 501 U.S. at 753. "Prejudice is actual prejudice, such that the petitioner must convince the court that `there is a reasonable probability that the result of the trial would have been different.'" Harris v. Artuz, No. 99 Civ. 11229, 2001 WL 435636, at *6 (S.D.N.Y. April 30, 2001) (quoting Strickler v. Greene, 527 U.S. 263, 289 (1999)). Even if a petitioner fails to show cause and prejudice, he may still prevail in the extraordinary case where a constitutional violation has likely resulted in a miscarriage of justice, such as the conviction of one who is actually innocent. Murray, 477 U.S. at 496.
Here, Mr. McLeod has not identified any objective factors that prevented defense counsel from objecting to the manner in which the trial court handled the Batson issue. The petitioner has not brought a claim of ineffective assistance of counsel, nor has he suggested another reason why the necessary objections were not made. Moreover, the initial challenge to the prosecution's peremptory challenges was made sua sponte by the judge; defense counsel never objected during voir dire. Thus, Mr. McLeod has not demonstrated any "cause" for the procedural default. Consequently, this Court need not consider whether any prejudice resulted. See Murray, 477 U.S. at 494 ("[B]oth cause and prejudice must be shown, at least in a habeas corpus proceeding challenging a state court conviction.") (emphasis in original).
Mr. McLeod has also not shown that failure to consider this claim will give rise to a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750. Generally, this exception "is only available where the petitioner can supplement his constitutional violation with `a colorable showing of factual innocence'" in the form of newly adduced evidence. Washington v. Superintendent, Otisville Correctional Facility, No. 96 Civ. 2729, 1997 WL 178616, at *7 (S.D.N.Y. April 11, 1997); see also Schlup v. Delo, 513 U.S. 298, 332 (1995). Mr. McLeod has never asserted that he is actually innocent of the crime for which he was convicted. Nor has he provided any evidence that was not available to the jury in his trial. Accordingly, Mr. McLeod's Batson claim is procedurally barred, and must be dismissed.
B. Speedy Trial Claim
Mr. McLeod also claims that his "speedy trial motion" was improperly denied. He alleges that the prosecution failed to release grand jury transcripts for his inspection within six months, and improperly delayed the trial due to the injury of a principal witness. (Habeas Petition at 5). The respondent argues that Mr. McLeod is merely raising the same state statutory speedy trial claim here that he did in the Appellate Division and that this claim is not cognizable on federal habeas review. (Opp. Memo, at 17). To the extent that Mr. McLeod's claim is construed as a federal claim, the respondent contends that it is unexhausted and procedurally barred. (Opp. Memo, at 17).
Before a state prisoner may receive federal habeas corpus relief, he must first allow the state courts a fair opportunity to consider the federal claim. 28 U.S.C. § 2254(b), (c); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of the State of New York, 696 F.2d 186, 190-91 (2d Cir. 1982). Since "non-constitutional claims are not cognizable in federal habeas corpus proceedings . . ., a habeas petition must put state courts on notice that they are to decide federal constitutional claims." Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984) (citation omitted). A claim has been "fairly presented" to the state court when the court has been apprised of both the factual and legal premises of the claim upon which the petitioner now seeks federal relief. See Picard, 404 U.S. at 276-77. If any material factual or legal premises appear for the first time in the federal petition, then the state court has not had a fair opportunity to consider the claim. Id.; Daye, 696 F.2d at 191-92.
It is not necessary that the petitioner cite "book and verse on the federal constitution" in order to have fairly presented the federal claim. Picard, 404 U.S. at 278 (quotation marks and citation omitted);accord Cox v. Miller, 296 F.3d 89, 99 (2d Cir. 2002). Rather, the legal basis of the claim made in state court need only be the "substantial equivalent" of the federal habeas claim. See Picard, 404 U.S. at 278. A substantially equivalent claim is one that is likely to alert the state court to the federal nature of the matter. Daye, 696 F.2d at 192 n. 4.
The Second Circuit has articulated four ways in which a petitioner may fairly present to the state appellate courts the federal nature of his claim, other than by explicitly relying on the U.S. Constitution. These are: "(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing federal 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." McKinney v. Artuz, 326 F.3d 87, 96-97 (2d Cir. 2003) (quoting Daye, 696 F.2d at 194); see also Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 95 (2d Cir. 2001).
By these standards, Mr. McLeod has failed to present his claim in constitutional terms. The petitioner claims that the trial court improperly denied his "speedy trial motion" and goes on to cite to the rules contained in CPL § 30.30(1)(a), rather than relying on a federal constitutional analysis under the Sixth and Fourteenth Amendments. (App. Br. at 14). In his brief to the Appellate Division, Mr. McLeod only referenced the state speedy trial statute and relied only on state cases that employed an analysis based on state law. (App. Br. at 14-21). The same is true of his application for leave to appeal. (Letter Requesting Leave to Appeal dated March 30, 2001, attached as Exh. 4 to Opp. Aff., at 4). By presenting his claims in this manner, Mr. McLeod failed to inform the state courts of the federal claim he now asserts. See Pietrovic v. Bennett, No. 00 Civ. 0398, 2002 WL 32780, at *4 (S.D.N.Y. Jan. 3, 2002) (citing Gibriano v. Attorney General of the State of New York, 965 F. Supp. 489, 492 (S.D.N.Y. 1997)). It is well-settled in this Circuit that a CPL § 30.30 claim does not raise a federal constitutional speedy trial claim under the Sixth and Fourteenth Amendments, and is therefore not reviewable by a federal habeas court. See Delvalle v. Sabourin, No. 00 Civ. 3302, 2002 WL 1000968, at *3 (S.D.N.Y. May 16, 2002) (citingGonzalez v. Garvin, No. 99 Civ. 11062, 2002 WL 655164, at *2 (S.D.N.Y. Apr. 22, 2002)). Such a claim "involves legal and factual analyses that are different from those entailed in examining a Sixth Amendment claim."Pjetrovic, 2002 WL 32780, at *4 (citing Holden v. Miller, No. 00 Civ. 0926, 2000 WL 1121551, at *6-7 (S.D.N.Y. Aug. 8, 2000)). Since Mr. McLeod failed to present his speedy trial claim as an issue of federal constitutional law at the state level, it is not properly exhausted and thus cannot be entertained on the merits in this Court.
Nevertheless, a federal court may deem a claim exhausted if it is clear that the state court would find the claim procedurally barred. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (citing Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989)). As discussed above, if a claim is procedurally barred, the federal court may not reach the merits of that claim unless the petitioner is able to demonstrate both cause for the default and actual prejudice as a result of the alleged violation of federal law. Alternatively, his claim may be heard if he can show that failure to consider the claim will result in a fundamental miscarriage of justice.
Mr. McLeod is procedurally barred from returning to state court to argue this claim based on federal constitutional grounds. This is because New York law provides for only a single application for direct review. New York Rules of Court, Court of Appeals, § 500.10(a); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000). Furthermore, a claim that was available but not raised on direct appeal may not be the basis for collateral relief. CPL § 440.10(2)(c). Mr. McLeod has not suggested any cause for failing to fairly present his federal constitutional claim on appeal, nor has he demonstrated any prejudice. Moreover, he has failed to allege that failure to consider this claim on the merits will result in a fundamental miscarriage of justice. Accordingly, this claim is procedurally barred and may not be addressed on its merits.
Conclusion
For the reasons set forth above, I recommend that the respondent's motion to dismiss be denied and that Mr. McLeod's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable William H. Pauley III, Room 2210, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 1007. Failure to file timely objections will preclude appellate review.