Appeal from judgment of the United States District Court for the Southern District of New York, Vincent L. Broderick, J., granting petitioner's writ of habeas corpus.
Oakes, Chief Judge, Lumbard and Feinberg, Circuit Judges. Lumbard, Circuit Judge, Concurring.
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. Parron 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 Parron 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.
Parron was arrested in September 1977 and was convicted two years later, after a jury trial. He was sentenced in January 1980 to three concurrent indeterminate terms of imprisonment, each not to exceed 15 years. We are informed that he is currently on parole. After conviction but before sentencing, Parron moved, first pro se and then by appointed counsel, to set aside the verdict on New York statutory speedy trial grounds. See N.Y. Crim. P. Law § 30.30. The New York statute is strict, requiring the prosecution to be "ready for trial" of a felony within six months of commencement of the action to avoid dismissal with prejudice, and the defendant need not show that he was prejudiced by the delay. See People v. Lawrence, 64 N.Y.2d 200, 205, 485 N.Y.S.2d 233, 474 N.E.2d 593 (1984).
The state trial court denied the motion alternatively on procedural grounds, N.Y. Crim. P. Law §§ 210.20(1)(g) & (2)--because Parron did not raise the objection before trial, and on substantive grounds, N.Y. Crim. P. Law § 30.30(1)(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 372 (1st Dep't 1982), and the New York Court of Appeals denied Parron leave to appeal, 56 N.Y.2d 594, 450 N.Y.S.2d 1028, 435 N.E.2d 1101 (1982) (Gabrielli, J.).
In November 1983, Parron 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, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982) and Wainwright v. Sykes, 433 U.S. 72, 81, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). Parron appealed from that decision, and, while the appeal was pending in this court, the parties stipulated to a remand to allow Parron to amend his federal habeas corpus petition. In November 1986, Parron 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 Parron 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.
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 district court's order and dismiss the petition to allow exhaustion of that claim. Parron contends that the claim has been exhausted, and argues that, in any event, the state abandoned the non-exhaustion claim in open court before the magistrate. The magistrate, however, correctly believed it advisable to consider the question regardless of whether the state still argued that there had not been exhaustion, citing Granberry v. Greer, 481 U.S. 129, 107 S. Ct. 1671, 1674, 95 L. Ed. 2d 119 (1987); Gulliver v. Dalsheim, 687 F.2d 655, 657 & n.1 (2d Cir. 1982). The magistrate then ruled that petitioner's ineffective assistance claim had been exhausted in the state courts.
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 Parron 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, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In this case, Parron would have to establish not only that his counsel failed to bring a timely speedy trial motion but also that the delay harmed Parron. 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 Parron. In other words, on that assumption, Parron 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 ...