JAMES RICHARDSON v. MARK MILLER (2024)

REPORT & RECOMMENDATION

To the Honorable Laura Taylor Swain, Chief United States District Judge:

Pro se petitioner James Richardson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction by a jury of one count of attempted assault in the first degree, one count of assault in the second degree, two counts of attempted robbery in the first degree, one count of attempted robbery in the second degree, and two counts of criminal possession of a weapon in the second degree. The court sentenced him as a second violent felony offender to an aggregate total of 12 years’ imprisonment, followed by five years’ post-release supervision. Richardson claims that the state courts violated his right to a speedy trial. For the reasons set forth below, the petition should be denied.

I. BACKGROUND

A. Overview of Charges and Pre-Trial Motion Practice

Richardson's conviction arises from a January 10, 2011 incident in which he was found to have shot his cousin, Isaac “Ike” Coleman, in the leg during an altercation following a drug transaction. Richardson was arrested on January 12, 2011, two days after the shooting. Jury Trial Transcript (“Tr.”) at 418–19.¹ He was arraigned on the felony complaint on January 13, 2011, and indicted on January 14, 2011, for assault, attempt to commit robbery in the first degree, attempt to commit robbery in the second degree, and criminal possession of a weapon. Indictment No. 211/11; State Record (“SR”) 264–67.² Following the indictment, the case underwent a series of delays for various reasons, including motion practice initiated by Richardson and adjournments granted at defense counsel's request or with defense counsel's alleged consent.

1. Preliminary Delays

On March 15, 2011, Richardson filed an omnibus motion raising claims about the stop and search at the time of his arrest, the victim's identification of him, and the criminal record that might be used to impeach his testimony at trial. SR 408–14. On May 3, 2011, the court granted a hearing on Richardson's stop and search claims, denied his motion as to the victim's identification, and held in abeyance the motion regarding his past convictions. Id. at 407.

On June 8, 2011, defense counsel failed to appear for a scheduled suppression hearing, informing the court that he was appearing in Bronx County on an unrelated matter. ECF 15-4, at 2.³ The People stated that a witness for the hearing was unavailable because the witness's father was required to have surgery that day and asked for an adjournment to June 20, 2011. Id. Defense counsel, however, had provided a long list of dates when he was unavailable that included June 20, 2011. Id. at 2–3. After conferring with the People and Richardson's stand-in counsel, the trial court adjourned the case to August 3, 2011. Id. at 4.

On August 3, 2011, the case was again adjourned because defense counsel was on trial in an unrelated matter. Beginning on November 1, 2011, a hearing to suppress Richardson's arrest, search, and post-arrest statements was held before the Honorable Analisa Torres. On April 3, 2012, Judge Torres denied Richardson's motions. SR 424–30.

On April 25, 2012, Richardson filed a motion to sever his case from that of his co-defendant, Kevin McGregor. See SR 269.⁴ On May 15, 2012, the trial court denied Richardson's motion to sever. Id. at 269-70.

2. Richardson's Motion for Release Under C.P.L § 30.30

On July 17, 2012, Richardson's counsel filed a motion for his release under C.P.L. § 30.30(2) on the ground that the People were not ready for trial within 90 days after the prosecution commenced. Id. at 341–43. On August 13, 2012, the trial court held that most of the delays were excludable from the 90-day calculation because they were attributable to motion practice and defense counsel's unavailability. See Id. at 283–90. The court concluded that all but 56 days since commencement of the prosecution were excludable, and therefore denied Richardson's motion. Id. at 290.

Richardson, who had been detained after his arrest, was ultimately released on the consent of the prosecution in September 2012. See ECF 15-6, at 3–6.⁵

3. Additional Delays and Richardson's Motions to Dismiss under § 30.30

After a series of additional adjournments, Richardson's case was calendared for trial on October 22, 2012. However, defense counsel filed an affirmation of engagement stating that he was on trial in an unrelated matter. ECF 15-6, at 8.

The People filed a certificate of readiness for trial on December 17, 2012. In a motion filed January 3, 2013, and a supplemental motion filed January 7, 2013, Richardson moved to dismiss the indictment under C.P.L. § 30.30(1). Richardson argued that the certificate of readiness was illusory because the People were not, in fact, ready for trial, and that more than 180 days had passed since the commencement of the prosecution, not counting periods excludable under § 30.30(4). Richardson argued that the People were not ready because the shooting victim, Coleman, was not cooperating with the prosecution and had not made himself available to them as a witness as of December 17, 2012. SR 531–35, 555–56. The People responded that their readiness did not depend on the victim's cooperation. The trial court agreed with the People and denied Richardson's C.P.L. § 30.30 motion in a decision dated January 14, 2013. Id. at 558–61.

On January 14, 2013, the People filed a motion under People v. Sirois, 92 A.D.2d 618 (2d Dep't 1983), to admit out-of-court statements from Coleman, whose unavailability for trial the People claimed was due to Richardson's own misconduct in the form of threats against the victim. The People explained that Coleman was cooperative when he testified before the grand jury in January 2011 shortly after the shooting, but he had subsequently disappeared. The People sent law enforcement officials to several addresses both in New York and elsewhere to attempt to locate Coleman. The People also learned that in the days following the grand jury proceedings, Richardson had made several recorded phone calls from jail wherein he spoke angrily and threateningly about Coleman. SR 544–53.

In February 2013, both Richardson and the People sought reconsideration of the court's January 14, 2013 decision denying Richardson's Section 30.30 dismissal motion. In March 2013, while both the Sirois motion and the motions for reconsideration were pending, Coleman was arrested in North Carolina on a material witness warrant. The People withdrew the Sirois motion, as well as their reconsideration motion. Richardson withdrew his reconsideration motion and, on March 20, 2013, filed a new C.P.L. § 30.30 motion to dismiss. See id. at 563.

On April 4, 2013, the trial court denied Richardson's new Section 30.30 motion. The court ruled, among other things, that the People's certificate of readiness was not illusory and that the period during the pendency of the People's Sirois motion was excludable from the applicable six-month time period. Id. at 562–63.

On April 8, 2013, Richardson, who had been released from custody, failed to appear in court and the court issued a bench warrant for his arrest. See id. at 109.

On May 6, 2013, the trial before the Honorable Arlene Goldberg began with jury selection. Richardson was subsequently tried in absentia.

B. The Trial

The following facts are drawn from the record of proceedings before the state trial court. In view of Richardson's conviction, the Court summarizes the evidence presented at trial in the light most favorable to the verdict. See Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012) (citation omitted).

1. The People's Case

On January 9, 2011, Isaac “Ike” Coleman—the shooting victim and Richardson's cousin—met with a man named Davel Lee, also known as “Tef” or “Drama,” whom he had known for approximately nine years. Tr. 69–70, 203–04, 238–40. Lee told Coleman that he was looking for drugs to sell in Brooklyn. Id. at 69–70, 238–40, 243. Coleman and Lee went to 1430 Amsterdam Avenue in Manhattan to obtain drugs, because Coleman knew that Richardson had previously received drugs there from a man referred to as “Fever.” Id. at 69–70, 146, 238–43. When Coleman and Lee arrived, they visited Robert “Rob Lowe” (or “Rob Lo”) DeFelice, who lived on the 16th floor of the building. Id. at 65, 69–70, 237, 248, 271, 282, 286–96, 319. DeFelice said that “his man” was waiting for “half a brick,” meaning half a kilogram of cocaine. Id. at 69–70, 71, 238–39, 286–87. The “man” described was Richardson's co-defendant Kevin “Fever” McGregor, whom Coleman had known for “close to a year.” Id. at 55–56.

DeFelice went to a different part of the building and came back with McGregor. McGregor explained that he was waiting for a delivery of 500 grams of cocaine and would sell some of it to Lee the following day. Id. at 69–71, 77, 79, 203, 239–40, 244–48, 281, 287–90, 298, 330–31.

On January 10, 2011, McGregor called Coleman and said that the delivery of cocaine had arrived and offered to sell some to Lee. Id. at 67, 71–73, 77, 140, 281, 292–93, 330. At about 9:45 p.m., Coleman and Lee went to the 16th floor of 1430 Amsterdam Avenue. When Coleman and Lee exited the elevator, McGregor and DeFelice were standing in the 16th floor hallway. Id. at 74, 78–79, 149, 248, 296. After the men had spoken for a few minutes, McGregor said he would “be right back” with the drugs and entered one of the stairwells. Id. at 74, 81–82, 248–49. About 15 minutes later, McGregor returned and handed Lee drugs in exchange for money. Id. at 74–75, 78-80, 82, 249, 298.

Soon thereafter, Coleman heard the door to one of the stairwells “pop open,” and saw Richardson emerge from one of the stairwells. Id. at 75, 81, 90, 311, 315–16. Richardson was holding a small, chrome handgun, and Lee fled the area. Id. at 76, 83, 88, 107, 153, 237, 302–03, 311, 313–14. Richardson said, “[W]hat's up, what's up” to Coleman and cocked the gun. Id. at 75, 82–84, 311–12. Coleman ran toward Richardson. Id. at 76, 84. He grabbed Richardson by the wrist and “tussl[ed]” with him in an attempt to take the gun away. Id. at 76, 84–85, 89, 154, 312–14, 317–18, 337–39. Richardson grabbed Coleman by the collar of his jacket, which was a Pelle brand jacket worth $1,200, and pulled on it “real hard.” Id. at 84–87, 115, 156–59, 312, 321–22. Richardson asked Coleman where “the bread” was, by which Coleman understood Richardson to mean money. Id. at 76, 82, 87, 100.

Richardson freed himself from Coleman and “jerked away.” Id. at 85–86, 318. Richardson then backed away a bit from Coleman and pulled the trigger of the gun, shooting Coleman in the right leg, just above the knee. Id. at 84–86, 163, 331–32. Richardson handed the gun to McGregor, and McGregor fled down the stairs of the building. Id. at 85–90, 92–94, 154–56, 316–18, 320.

Following the shooting, Coleman went to the apartment of a friend, Davene Roseborough. Id. at 66–67, 96, 278–79. Coleman was bleeding significantly, and Roseborough called an ambulance, which took Coleman to St. Barnabas Hospital. Id. at 98–99, 213–14, 280. After being bandaged at the hospital, Coleman was still in pain and could not walk without the assistance of crutches. Id. at 165–66, 268, 325–26. Coleman used the crutches for 6 to 8 weeks, and he walked with a limp for 10 to 11 months. Id. at 166–67. At the time of trial, the bullet remained in Coleman's leg, and he had a scar where it had entered his body. Id. at 168–69.

NYPD Detective Vincent Signoretti and other detectives interviewed Coleman at the hospital and, once he was discharged, at a precinct. Id. at 99–101, 214–16, 280, 294–95, 326, 664, 668–72. Initially, Coleman falsely claimed that he had been shot at the Manhattanville Houses after going there to “hang out” with a woman. Id. at 99–101, 215–16, 269, 277–78, 280–81, 332. Eventually, however, Coleman told the detectives that Richardson was the person who had shot him. Id. at 101, 215, 237, 533, 571.

After speaking with Coleman, NYPD Detective Jose Rojas arrested Richardson on January 12, 2011. Id. at 418–19, 435–36.

The jury heard recordings of various telephone calls Richardson made from jail after his arrest. During the calls, Richardson acknowledged that he had shot Coleman and made angry and threatening statements about Coleman and what would happen to him if he testified against him. The calls were played for the jury and transcripts were distributed for the jury to review. Id. at 381–82; see SR 431–51.

2. The Defense Case

Richardson did not present any witnesses during the trial.

3. The Verdict, Post-Verdict Motion, and Sentence

On May 16, 2013, the jury found Richardson guilty of one count of attempted assault in the first degree; two counts of attempted robbery in the first degree; two counts of criminal possession of a weapon in the second degree; one count of assault in the second degree; and one count of attempted robbery in the second degree. ECF 15-12, at 103–08.

On June 19, 2013, Richardson filed a motion to set aside the jury verdict under C.P.L. § 330.30(1). SR 483–86. On July 11, 2013, the trial court denied the motion. Id. at 482.

On July 29, 2013, Richardson was sentenced in absentia to a term of 12 years’ imprisonment for the attempted first-degree assault and second-degree weapons convictions, 10 years’ imprisonment for the attempted first-degree robbery convictions, and 7 years’ imprisonment for the second-degree assault and attempted second-degree robbery convictions. For each conviction, there was also a term of 5 years’ post-release supervision. The sentences were to run concurrently. ECF 15-12, at 130–31.

On February 27, 2014, Richardson, who was at liberty at the time, was arrested after he encountered Coleman on the street and fired a gun in his direction.⁶ See ECF 15-12, at 146 (describing the incident). On March 6, 2014, he was returned on the bench warrant and Justice Goldberg ordered that his sentence be executed. See ECF 15-12, at 135–48; SR 100.

C. The Direct Appeal

Richardson filed a direct appeal to the Appellate Division, First Department, in which he argued that: (1) the prosecution's December 17, 2012 declaration of readiness was illusory and therefore insufficient to stop the speedy trial clock for purposes of C.P.L § 30.30; (2) the trial court erred in excluding several time periods under C.P.L. § 30.30; (3) he was entitled to a missing witness charge regarding the prosecution's failure to call Lee (a.k.a. “Tef”) and “Rob Lo” as witnesses; (4) the prosecution violated its obligations under Brady v. Maryland when it failed to produce a detective's handwritten notes until the night before jury selection; and (5) the trial court erred in refusing to give a justification charge. SR 17–18.

With respect to his speedy trial claim, Richardson argued that he was denied his speedy trial rights under C.P.L. § 30.30 “because the prosecution was not ready for trial within the statutorily prescribed period of 181 days, minus periods that were properly excluded.” Id. at 28.⁷ Richardson was not tried for more than two years: the charges were brought on January 11, 2011, and jury selection began on May 6, 2013. Id. at 29. Thus, a total of 791 days elapsed between the start of the speedy trial clock and March 14, 2013, which is the “earliest date on which Mr. Richardson concedes the prosecution was ready for trial.” Id. at 30. Richardson stated that the trial court effectively determined that 165 days were chargeable to the prosecution, and of the remaining 626 days, Richardson conceded for the purposes of appeal that 440 of those days were properly excluded. Id. at 31. On appeal, Richardson challenged the exclusion of the remaining 186 days, which represent four time periods: June 22, 2011 to August 3, 2011 (42 days); May 15, 2012 to June 18, 2012 (34 days); October 22, 2012 to November 14, 2022 (23 days); and December 17, 2012 to March 14, 2013 (87 days). Id. at 31. His arguments on appeal were based on the exceptions to chargeable time under the state speedy trial statute, C.P.L. § 30.30.

With respect to the period from December 17, 2012 to March 14, 2013, Richardson argued that the prosecution's December 17, 2012 statement of readiness was illusory because the victim was missing and the People could not secure his attendance at trial.⁸ He argued that the trial court therefore should have charged the prosecution with the entirety of the period between December 17, 2012 and March 14, 2013, which was when Coleman had been taken into custody pursuant to a material witness warrant. Id. at 38.

With respect to the period from May 15, 2012 to June 18, 2012, Richardson argued that the prosecution was not entitled to 34 days of adjournment time, pursuant to C.P.L. § 30.30(4)(a), to prepare for trial following the trial court's denial of the defendants’ motion to sever. Id. at 49–52. He argued that the First Department's decision in People v. Green, 90 A.D.2d 705 (1st Dep't 1982), is inconsistent with the Court of Appeals’ “strict interpretation of the statute and with the legislative intent behind C.P.L. § 30.30.” Id. at 50.

With respect to the periods from June 8, 2011 to August 3, 2011, and from October 22, 2012 to November 14, 2012, Richardson argued that these were periods of time in which both the prosecutor and Richardson's counsel were unavailable on a court date, “but where the defense only required a short adjournment and the prosecution requested additional time.” Id. at 53. Richardson argued that any time “beyond the limited defense availability, which was solely caused by the prosecution's lack of readiness, should have been charged to the prosecution.” Id.

In addition to his claims under C.P.L. § 30.30, Richardson also asserted claims in the Appellate Division that: (1) the trial court improperly denied Richardson's motion for a missing witness charge as to “Tef” (a.k.a. Lee) and “Rob Lowe” (a.k.a. DeFelice), id. at 50–62; (2) the prosecution violated Brady v. Maryland by failing to timely produce allegedly exculpatory handwritten notes from a detective who interviewed Coleman, id. at 63–73; and (3) the trial court erred by refusing to give a justification charge, Id. at 74–84.

By order and decision dated March 4, 2021, the Appellate Division, First Department, unanimously affirmed the conviction. The Appellate Division held that the People's December 17, 2012 certificate of readiness was not illusory because, even though the People could not locate the victim, the People would have established the requisite prima facie case required to answer ready based on “defendant's recorded phone calls admitting to the shooting, a security videotape and medical records.” People v. Richardson, 192 A.D.3d 432, 432 (1st Dep't 2021). The Appellate Division further held that the time attributable to the Sirois application was correctly excluded under C.P.L. § 30.30(4)(a) because the People had a good faith basis to believe that Coleman was unavailable to testify as a result of Richardson's threats. Id. at 433. The same period of time was also independently excludable under C.P.L. § 30.30(4)(d) because Richardson's co-defendant had a pending motion at the same time. Id. The Appellate Division further held that the remaining adjournments challenged by Richardson were properly excluded under C.P.L. § 30.30 as either being attributable to consent of defense counsel or to “afford the People a reasonable period of time to prepare for trial after the court's rulings on motions.” Id.

With respect to Richardson's other claims, the Appellate Division held that the trial court was within its proper discretion to deny the missing witness charges because neither witness was “in the People's control for purposes of a missing witness charge.” Id. With respect to Richardson's Brady claim, the Appellate Division held that Richardson was not prejudiced by the People's belated disclosure of the detective's notes. Id. at 433–34.⁹ Finally, the Appellate Division held that the trial court correctly denied Richardson's request for a justification charge because “[t]here was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge.” Id. at 434.¹⁰

D. Application to the Court of Appeals

On March 23, 2021, Richardson's counsel applied for leave to appeal to the New York State Court of Appeals. Id. at 250–51. Along with the initial application, Richardson's counsel submitted a copy of the Appellate Division's order, and the briefs submitted to the Appellate Division were electronically transmitted to the Clerk's Office.

On April 19, 2021, Richardson's counsel filed a supplemental letter in support of Richardson's application for leave to appeal. Id. at 252–62. The body of the letter focused exclusively on two issues of law which Richardson's counsel argued the Court of Appeals should address: (1) “whether the First Department's practice of automatically excluding from the speedy trial clock periods following the decision of any pre-trial motion is consistent with New York's speedy trial statute,” id. at 252;¹¹ and (2) “whether a statement of defense counsel's time-limited unavailability constitutes consent to an adjournment of any length,” under C.P.L. § 30.30(4)(b). Id. at 259.¹²

Finally, Richardson's supplemental letter noted that “[i]n addition to the issues highlighted above, Richardson also raised on appeal to the First Department” additional claims including that specific time periods were improperly excluded from the speedy trial clock under C.P.L. § 30.30; that the trial court violated Richardson's state and federal constitutional fair trial and due process rights by denying his request for the missing witness charges, violating his rights under Brady; declining to give a justification charge; and “instructing the jury in a misleading manner.” Id. at 261. Richardson's supplemental letter did not explicitly ask the Court of Appeals to grant leave to consider these issues.

The People filed a letter in opposition to Richardson's application for leave to appeal to the Court of Appeals in which they argued that the case does not involve an issue of law warranting Court of Appeals review because “[t]he two statutory speedy trial issues that defendant raises are unreviewable by this Court and, furthermore, were unanimously rejected as meritless by the Appellate Division.” Id. at 391. The People's opposition letter focused exclusively on Richardson's statutory claims under C.P.L. § 30.30.

On May 4, 2021, the Court of Appeals denied Richardson's application for leave to appeal. People v. Richardson, 37 N.Y.3d 959 (2021).

E. Federal Habeas Petition

Richardson, proceeding pro se, timely filed this federal habeas petition when he placed it into the prison mailing system at Green Haven Correctional Facility on July 21, 2022.¹³ ECF 1. Along with the petition, Richardson also filed a memorandum of law in support of his petition. ECF 2. Richardson asserts two grounds for habeas relief: (1) his “right to due process was violated when the state court automatically excluded post-motion delays even if those delays are not shown to result from the mo[ ]tion or to be reasonable”; and (2) his “right to a fair trial was violated since the state court found that defense counsel's time-limited unavailability constituted consent to an adjournment of any length.” ECF 1, at 4. Both of Richardson's claims arise from alleged violations of New York's speedy trial statute, C.P.L. § 30.30.¹⁴

In a preliminary statement to his memorandum of law, Richardson argues that the Appellate Division, First Department's rule allowing automatic exclusion of time after a decision on a pre-trial motion is “contrary to the strict requirements of New York's CPL § 30.30 (speedy trial statute); which in turn contradicts clear federal law handed [sic] by the Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972); Doggett v. United States, 505 U.S. 647 (1992); and their progeny.” ECF 2, at 3. He further argues that the trial court's exclusion from the speedy trial calculation of a 23-day adjournment based on defense counsel's saying he had a trial in another case that he expected to last another week was “in direct contravention” of People v. Smith, 82 N.Y.2d 676, 678 (1993), and Barker. ECF 2, at 3–4.

While Richardson invokes his rights to due process and a fair trial and, as quoted above, makes passing reference to Barker and Doggett, the arguments and case law cited throughout his memorandum of law are based entirely on state law.

On April 20, 2023, Respondent filed his opposition, which included a memorandum of law. ECF 15-1. Richardson filed a reply on June 29, 2023. ECF 17.

II. DISCUSSION

A. Legal Standards for Habeas Relief Under Section 2254

1. Exhaustion

Under 28 U.S.C. § 2254, a federal court may not grant habeas relief unless the petitioner has first exhausted his claims in state court. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—(A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.”); § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999) (“[T]he state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.”)

Exhaustion “requires that the prisoner ‘fairly present’ his constitutional claim to the state courts, which he accomplishes ‘by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it.’ ” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014) (quoting Rosa v. McCray, 396 F.3d 210, 217 (2d Cir. 2005)). “While ‘a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement,’ he must tender his claim ‘in terms that are likely to alert the state courts to the claim's federal nature.’ ” Id. (quoting Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011)).

2. Procedural Bar to Claims Deemed Exhausted

If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Id. An unexhausted claim for which the petitioner cannot obtain further review in state court is procedurally defaulted and must be dismissed. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.” (internal quotation marks and citations omitted)).

A petitioner may overcome the procedural bar if he demonstrates “cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrates that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Murray v. Carrier, 477 U.S. 478, 495–96 (1986). A petitioner can show “cause” for a procedural default when (1) “the factual or legal basis for a claim was not reasonably available,” (2) “some interference by state officials made compliance [with the procedural rule] impracticable,” or (3) “the procedural default is the result of ineffective assistance of counsel.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). While the Supreme Court has not given “precise content” to the term “prejudice,” see Wainwright v. Sykes, 433 U.S. 72, 91 (1977), the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S. 152, 175 (1982).

A fundamental miscarriage of justice is “an extraordinary case where a constitutional violation has probably resulted in the conviction of one who is actually innocent[.]” Murray, 477 U.S. at 496. “The petitioner's burden in making a gateway showing of actual innocence is deliberately ‘demanding.’ ” Hyman v. Brown, 927 F.3d 639, 656 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. 518, 538 (2006)). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.’ ” Id. at 657 (citing Bousley v. United States, 523 U.S. 614, 623 (1998)).

3. Standards of Review Under the Antiterrorism and Effective Death Penalty Act

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) “imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Jones v. Murphy, 694 F.3d 225, 234 (2d Cir. 2012) (quoting Hardy v. Cross, 565 U.S. 65, 66 (2011)). Under the AEDPA, courts may only grant a habeas petition if the challenged state court decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” at the time of the state court decision; or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

Under the first prong, the “Supreme Court has instructed that section 2254(d)(1)’s ‘contrary to’ and ‘unreasonable application of’ clauses have independent meaning.” Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (citing Williams v. Taylor, 529 U.S. 362, 404–05 (2000)). “A state court decision is ‘contrary to ․ clearly established Federal law, as determined by the Supreme Court’ when ‘the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.’ ” Id. at 544 (quoting Williams, 529 U.S. at 412–13); see also Parker v. Matthews, 567 U.S. 37, 48–49 (2012) (circuit precedent, even if “merely reflect[ing]” Supreme Court precedent, does not constitute “clearly established federal law” for purposes of § 2254(d)(1)).

A state court makes an unreasonable application of federal law if it “correctly identifies the governing legal rule but applies that rule unreasonably to the facts of a particular prisoner's case.” White v. Woodall, 572 U.S. 415, 426 (2014). Such application of federal law must be “ ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.” Id. at 419 (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76 (2003)). “The state court decision must be ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.’ ” Woods v. Etherton, 136 S. Ct. 1149, 1151 (2016) (quoting White, 572 U.S. at 420). The standard “is difficult to meet,” and it was intended to be. Metrish v. Lancaster, 569 U.S. 351, 357–58 (2013) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)).

Under the second prong, a state court's determination of fact “may not [be] characterize[d] ․ as unreasonable ‘merely because [a reviewing court] would have reached a different conclusion in the first instance.’ ” Brumfield v. Cain, 576 U.S. 305, 313-14 (2015) (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)). Instead, § 2254(d)(2) requires a reviewing court to “accord the state trial court substantial deference. If ‘[r]easonable minds reviewing the record might disagree’ about the finding in question, ‘on habeas review that does not suffice to supersede the trial court's ․ determination.’ ” Id. at 314.

4. Pro Se Status

A petitioner bears the burden to establish, by a preponderance of the evidence, that his constitutional rights have been violated. See, e.g., Cardoza v. Rock, 731 F.3d 169, 178 (2d Cir. 2013). However, the submissions of a pro se petitioner are held to less stringent standards than formal pleadings drafted by lawyers. See, e.g., Davis v. Walsh, No. 08-CV-4659 (PKC), 2015 WL 1809048, at *1 n.1 (E.D.N.Y. Apr. 21, 2015) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Courts must liberally construe a “pro se petition ‘to raise the strongest arguments’ it suggests.” Id. (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 472 (2d Cir. 2006)). Pro se status, however, “does not exempt a party from compliance with relevant rules of procedural and substantive law.” Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).

B. Analysis

As noted, Richardson asserts the following grounds for relief in his habeas petition: (1) his “right to due process” was violated when the state court automatically excluded post-motion delays from C.P.L. § 30.30’s speedy trial clock because those delays did not result from the motion and were unreasonable, and (2) his “right to a fair trial” was violated where the state court found that “defense counsel's time-limited unavailability constituted consent to an adjournment of any length” for purposes of C.P.L. § 30.30’s speedy trial clock. ECF 1, at 4. Before addressing Richardson's claims, the Court will briefly summarize New York state's speedy trial protections.

1. New York's Speedy Trial Protections

New York protects a criminal defendant's speedy trial rights in two ways. The first, codified in C.P.L. § 30.30, “addresses how much time may elapse between the commencement of a criminal action and when the case is trial ready.” Parrish v. Lee, No. 10-CV-8708 (KMK), 2015 WL 7302762, at *11 (S.D.N.Y. Nov. 18, 2015). Section 30.30 provides that an indictment must be dismissed if, after six months following the commencement of the criminal action, the prosecution is not ready for trial. N.Y. Crim. Proc. Law § 30.30. When calculating the six-month time period, time is excluded for a number of reasons, including a reasonable period of time for delays resulting from proceedings concerning the defendant, such as pre-trial motions and the period during which such motions are under consideration by the court, § 30.30(4)(a); or a period of delay resulting from a continuance granted by the court “at the request of, or with the consent of,” the defendant or his counsel, § 30.30(4)(b). “Section 30.30 is a statutory time frame in which the People of the State of New York must be ready for trial.” Gibriano v. Att'y Gen., 965 F. Supp. 489, 492 (S.D.N.Y. 1997) (internal quotation marks omitted)). Section 30.30 “is purely a creature of New York state statute and does not protect a federal constitutional right.” Parrish, 2015 WL 7302762, at *11; see Cadilla v. Johnson, 119 F. Supp. 2d 366, 374 (S.D.N.Y. 2000) (“Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be ready for trial, a § 30.30 claim does not raise a federal constitutional claim.”); see also Smith v. LaClair, No. 04-CV-4356, 2008 WL 728653, at *3 (S.D.N.Y. Mar. 17, 2008) (“Section 30.30 is not ․ a statutory embodiment of the constitutional guarantee to a speedy trial.” (internal quotation marks and citation omitted)).

The other New York state speedy trial statute, C.P.L. § 30.20, is a general speedy trial provision which provides that “[a]fter a criminal action is commenced, the defendant is entitled to a speedy trial,” and that “[i]nsofar as is practicable, the trial of a criminal action must be given preference over civil cases; and the trial of a criminal action where the defendant has been committed to the custody of the sheriff during the pendency of the criminal action ․ preference over other criminal actions.” N.Y. Crim. Proc. Law § 30.20. Courts have held that, unlike Section 30.30, Section 30.20 “embod[ies] the federal constitutional right to a speedy trial[.]” Gibriano, 965 F. Supp. at 492 (internal quotation marks omitted); accord Smith v. Maher, 468 F. Supp. 2d 466, 473 (W.D.N.Y. 2006); People v. Anderson, 488 N.E.2d 1231, 1234 (N.Y. 1985).

2. Richardson's Section 30.30 Claims Are Not Cognizable on Federal Habeas Review

In both his grounds for relief, Richardson asks the Court to vacate his conviction based on the People's alleged failure to comply with the requirements of C.P.L. § 30.30. In his first ground for relief, Richardson argues that the Appellate Division, First Department, has misconstrued Section 30.30(4)(a), which provides for exclusion from the speedy trial clock “a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to ․ pre-trial motions.” N.Y. Crim. Proc. Law § 30.30(4)(a). In his petition, Richardson argues that the First Department has consistently interpreted this provision to “automatically allow” for the exclusion of time following a court's decision of a pre-trial motion “without any showing from the prosecution that the adjournment is reasonable or that the motion, or the court's decision on the motion, resulted in any additional delay (other than the time during which the motion was actually pending).” ECF 2, at 7. The foundation of Richardson's argument is that the First Department has impermissibly expanded its ruling in People v. Green, 90 A.D.2d 705 (1st Dep't 1982). See id. at 7–9. He specifically argues that the trial court and the First Department both erred by excluding the 34-day adjournment following the trial court's denial of the defense's motion to sever without providing any analysis of the relationship between the severance motion and length of the adjournment. See id. at 9–10.

In his second ground for relief, Richardson argues that the state courts misapplied Section 30.30(4)(b), which provides for exclusion of time periods resulting from “a continuance granted by the court at the request of, or with the consent of, the defendant or his counsel.” N.Y. Crim. Proc. Law § 30.30(4)(b). Richardson focuses on his counsel's statement on October 19, 2012, that he could not proceed to trial immediately because he had another trial that “would last for another week” but could otherwise “appear on any date that this Court deems appropriate.” ECF 2, at 11–12. Richardson argues that, under the New York Court of Appeals’ decision in People v. Barden, 27 N.Y.3d 550 (2016), his counsel's statement did not constitute a clear expression of consent for the entire 23-day adjournment that was granted. Id. at 11–14.

A federal court may vacate a state law conviction only where the conviction violates a well-established federal law. 28 U.S.C. § 2254(d)(1); Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Because Section 30.30 is purely a creature of state law and does not protect a federal constitutional right, Richardson's speedy trial claims under Section 30.30 are not cognizable on habeas review. See, e.g., Parrish, 2015 WL 7302762, at *11 (“[A] § 30.30 claim is not cognizable in a federal habeas case.”); Dowling v. Fisher, No. 11-CV-2025, 2014 WL 3611645, at *4 (E.D.N.Y. July 22, 2014) (“[T]o the extent Petitioner challenges his conviction pursuant to CPL § 30.30, New York's speedy trial statute, this Court simply does not have the power to review that claim.”); Wilson v. Goord, No. 00-CV-4849, 2004 WL 226149, at *4 (S.D.N.Y. Feb. 6, 2004) (“[E]ven if Petitioner's statutory speedy trial right [under Section 30.30] was violated, Petitioner has failed to raise a constitutional claim that is cognizable on federal habeas corpus review.”); Rodriguez v. Miller, No. 96-CV-4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] C.P.L. § 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition.”).

In his habeas petition and his memorandum of law, Richardson attempts to recast his claims under Section 30.30 in constitutional terms. He asserts that the state court's alleged misapplication of Section 30.30 violated his “right to due process of law and his right to a fair trial” under the Fourth and Sixth Amendments of the United States Constitution. ECF 2, at 6. His memorandum of law also asserts, without elaboration, that the decisions of the state court “are clearly contrary to federal law found in Barker v. Wingo, 407 U.S. 514 (1972).” Id. at 14.

Richardson's minimal and passing reference to federal law does not change the fact that he is asking this Court to decide state law claims. Courts have consistently held that simply couching habeas claims in constitutional terms does not transform them into federal claims cognizable on habeas review. See, e.g., DiGuglielmo v. Smith, 366 F.3d 130 (2d Cir. 2004) (“ ‘[E]rrors of state law cannot be repackaged as federal errors simply by citing the Due Process Clause.’ ” (quoting Johnson v. Rosemeyer, 117 F.3d 194, 110 (3d Cir. 1997)); Lloyd v. Morton, No. 18-CV-6979, 2023 WL 1994666, at *6 (E.D.N.Y. Feb. 14, 2023) (“Claiming deprivation of due process does not automatically convert a claim of alleged state law error into a constitutional violation.”); Love v. Martuscello, No. 17-CV-6244, 2022 WL 2109244, at *12 (W.D.N.Y. June 10, 2022) (merely alleging a “lack of a fair trial” or a violation of “due process rights” does not give rise to a specific federal constitutional claim); Gopaul v. Racette, No. 15-CV-1781, 2021 WL 5163211, at *3 (E.D.N.Y. Nov. 5, 2021) (“Merely citing the right to due process, without more, does not convert errors of state law into constitutional violations.”).

In his reply to Respondent's opposition (in which Respondent similarly argued that Richardson's claims are not cognizable on habeas review), Richardson includes direct, although conclusory, references to federal constitutional law. For example, Richardson asserts that the “right to speedy trial” is recognized by the Supreme Court and enshrined in the Sixth Amendment. ECF 17, at 3. He also provided citations to Barker v. Wingo, 407 U.S. 514 (1972), and United States v. Loud Hawk, 474 U.S. 302 (1986), but he did not apply those cases to the specific issues he raises in his petition, except to assert that “[t]he argument that no federal case law was presented in the petition is ․ misplaced.” ECF 17, at 5.

In his reply, Richardson also cites Daye v. Attorney General of the State of New York, 696 F.2d 186, 194 (2d Cir. 1982), for the proposition that federal courts “consider that a defendant who cites state precedent that employs pertinent constitutional analysis has adequately put the state courts on notice of the constitutional thrust of his claim.” ECF 17, at 5 (citing Daye, 696 F.2d at 194). However, both Daye and the principle on which it relies apply to whether a federal habeas petitioner has properly exhausted his federal constitutional claims in the state courts before seeking federal habeas relief, an issue the Court will address below. Daye and its implications for exhaustion of federal claims do not change the fact that Richardson asserted only claims under C.P.L. § 30.30 in his petition and that such claims are not cognizable on habeas review.

Accordingly, despite Richardson's references to federal law, the substance of his claims that the trial court improperly calculated excludable time for purposes of New York's state speedy trial statute, C.P.L. § 30.30 – as articulated in his petition, memorandum of law, and his reply – arise under state law and are not cognizable in a federal habeas petition. Therefore, the petition should be denied on the grounds that Richardson's claims arise under New York state law and are therefore not cognizable in a federal habeas petition.

Nonetheless, in light of Richardson's pro se status and for the sake of completeness, the Court will address below any constitutional speedy trial claim Richardson may be asserting.

3. Constitutional Speedy Trial Claims

Even if the Court assumes that Richardson's petition presented a cognizable constitutional speedy trial claim, Richardson has not properly exhausted any such claim in the state courts and thus any such claim is procedurally defaulted. Furthermore, Richardson has not alleged facts demonstrating that he could overcome the procedural default. Finally, even if Richardson had exhausted his claims or could overcome a procedural default, any constitutional speedy trial claim he could present would be meritless.

a. Any Constitutional Speedy Trial Claims Are Not Exhausted

Courts in the Second Circuit have generally held that raising a New York C.P.L § 30.30 claim in state court does not exhaust a federal constitutional speedy trial claim. See, e.g., Smith v. LaClair, No. 04-CV-4356, 2008 WL 728653, at *3 (S.D.N.Y. Mar. 17, 2008) (“Because C.P.L. § 30.30 is merely a state law provision requiring the prosecution to be ready for trial, a § 30.30 claim does not raise a federal constitutional claim.” (internal quotation marks omitted)); Edwards v. Mazzuca, No. 00-CV-2290, 2007 WL 2994449, at *13 (S.D.N.Y. Oct. 15, 2007) (“[A] CPL § 30.30 claim is not the equivalent of a federal constitutional speedy trial claim made pursuant to the Sixth and Fourteenth Amendments; therefore, it cannot be reviewed in a federal habeas corpus proceeding.”); Delvalle v. Sabourin, No. OO-CV-3302, 2002 WL 1000968, at *3 (S.D.N.Y. May 16, 2002) (“In his direct appeal in state court, [the petitioner] asserted a speedy trial claim citing N.Y. Crim. Proc. Law § 30.30, but making no mention whatsoever of the United States Constitution. It is well settled that a petitioner who raises only a statutory speedy trial claim pursuant to N.Y, Crim, Proc. Law § 30.30 has not invoked the federal constitution and therefore has not exhausted a federal claim.”); Gibriano v. Att'y Gen., 965 F. Supp. 489, 492 (S․D.N.Y. 1997) (“[W]hen the petitioner twice raised his statutory speedy trial claim in the state court under Section 30.30, he did not effectively present to those courts the federal constitutional speedy trial claim that he raises now in this court.” (internal quotation marks omitted)).

By contrast, because New York C.P.L § 30.20 embodies a federal constitutional speedy trial right, raising a Section 30.20 claim in state court can exhaust a federal constitutional speedy trial claim. Cf. Mills v. Lempke, No. 11-CV-440, 2013 WL 435477, at *51 (W.D.N.Y. Feb. 4, 2013) (“[The petitioner] did not cite C.P.L. § 30.20, the section of the statute that embodies the Sixth Amendment's constitutional guarantee to a speedy trial. Thus, [he] did not properly assert his constitutional right to a speedy trial at that point.” (citation omitted)); Woodard v. Berry, No. 90-CV-1053, 1992 WL 106508, at *2 (E.D.N.Y. Apr. 24, 1992) (“[B]ecause the petitioner presented his ‘speedy trial’ claim in the state courts only as a claim under Section 30.30—rather than as a claim under the Sixth Amendment to the federal Constitution or as a claim under Section 30.20—he did not give the state courts a ‘fair opportunity’ to consider the federal question he now presents to this court.”).

There are several ways a petitioner can exhaust a federal constitutional speedy trial claim in his leave application to the Court of Appeals. Most obviously, a petitioner can clearly assert the federal claim. A petitioner can also alert the Court of Appeals to the federal claim, and therefore exhaust the claim, by including: “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Daye, 696 F.2d at 194; see also Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (same); accord Babcock v. Heath, No. 11-CV-4631, 2014 WL 4979448, at *9 (S.D.N.Y. Oct. 3, 2014); Stanley v. Smith, No. 12-CV-6362, 2014 WL 5039444, at * 10 (S.D.N.Y. Sept. 26, 2014).

The Court will first address whether Richardson, who at the time was represented by counsel, clearly asserted a federal claim in his application to the Court of Appeals.¹⁵ Richardson's leave application focused exclusively on his arguments that the lower courts incorrectly applied Section 30.30 when excluding time under the speedy trial clock. See SR 250–62.¹⁶ Nowhere in his leave application did Richardson refer to the federal Constitution's speedy trial guarantee or New York C.P.L § 30.20. See id. He instead referred only to Section 30.30 and to state law cases pertaining to various exclusions of time under that statute's speedy trial clock.

Richardson did submit his briefs filed with the Appellate Division and the Appellate Division's decision to the Court of Appeals as part of his leave application. Like his leave application, however, Richardson's brief to the Appellate Division was insufficient to alert the Court of Appeals to any federal speedy trial claim. Richardson stated the questions presented solely in terms of C.P.L. § 30.30’s requirement that the prosecution be prepared to bring a defendant to trial within six months of arraignment. See, e.g., id. at 28 (“The Court erred in denying Mr. Richardson's C.P.L. § 30.30 motions because the prosecution's statement of readiness was illusory, and other excluded periods lacked a statutory basis.”). In his appellate briefs, Richardson cited only Section 30.30 and state cases interpreting that statute to argue that certain periods of time should have been chargeable to the prosecution for purposes of Section 30.30’s speedy trial clock and whether the prosecution's statement of readiness was “illusory” under state law. See generally id. at 28–58.¹⁷ His appellate brief included no references to the constitutional speedy trial right or Section 30.20. Id. Like his initial appellate brief, Richardson's reply brief again only raised a claim under Section 30.30. See id. at 204 (“Point One ․ Mr. Richardson's convictions must be vacated and the indictment dismissed because the prosecution violated CPL § 30.30.”).

Richardson therefore did not exhaust a constitutional speedy trial claim by directly presenting it to the Court of Appeals.

The second way Richardson could have exhausted his federal constitutional speedy trial claim is through relying on pertinent cases employing constitutional analysis. See, e.g., Daye, 696 F.2d at 194. As discussed above, however, nowhere in his application to the Court of Appeals or in his briefs to the Appellate Division did Richardson cite any federal cases with respect to his speedy trial claims. Since Richardson did not cite any federal cases, he cannot satisfy the exhaustion requirement through his reliance on federal cases.

Richardson also could have exhausted his claims by relying on state cases that employ federal constitutional analysis in like fact situations. See id. However, his leave application to the Court of Appeals framed the speedy trial issue solely in terms of Section 30.30 and state case law interpreting that statute. For example, his primary argument was that the Court of Appeals “should grant Mr. Richardson leave to appeal because his appeal squarely presents an unresolved and important question of New York criminal law: whether the First Department's practice of automatically excluding from the speedy trial clock periods following the decision of any pre-trial motion is consistent with New York's speedy trial statute.” SR 252. He further argued that his application was “leave-worthy” because it provided an “opportunity to clarify how courts should analyze whether defense counsel consented to an adjournment” based on Richardson's claim that that the trial court improperly excluded a 23-day adjournment requested by the prosecution based on defense counsel's statement that he had a trial that would last another week. Id. at 253.

All of the cases cited by Richardson in support of his speedy trial claims in his leave application were state cases interpreting various provisions of Section 30.30 regarding the periods of time that are excludable from the speedy trial clock. See id. at 253–61. None of the cases cited by Richardson employed any federal constitutional analysis. Because Richardson relied only on state law cases that employ state statutory analysis, he did not alert the Court of Appeals to his federal constitutional claim and did not exhaust his claim under this prong of the Daye standard.

Next, Richardson could have exhausted his claim if it was asserted to the Court of Appeals “in terms so particular as to call to mind a specific right protected by the Constitution.” Daye, 696 F.2d at 194. While a “speedy trial” is a right protected by the Constitution, there is a distinction between the constitutional right to a speedy trial and the statutory speedy trial rights created by New York state. Richardson's leave application used language and relied on cases addressing only his state statutory speedy trial claim. He cannot claim, as he did in his reply to Respondent's opposition, that “his articulation of a speedy trial issue and his citation of state court precedents implicated a federal question.” ECF 17, at 5; see Robinson v. Cunningham, No. 09-CV-1904, 2011 WL 7046020, at *4 (E.D.N.Y. Jan. 4, 2011) (petitioner “failed to properly raise a constitutional claim for state court review” where he “relied solely on state cases discussing the statutory requirements and burdens under N.Y.CP.L. § 30.30 and only presented facts regarding chargeable time against the prosecution under N.Y.CP.L. § 30.30”), adopted sub nom. Robinson v. Superintendent, Green Haven Corr. Facility, 2012 WL 123263 (Jan. 17, 2012). As already noted, courts within the Second Circuit have held that raising a § 30.30 state statutory speedy trial claim is insufficient to call to mind a federal constitutional speedy trial right. See, e.g., Davis v. Lee, No. 13-CV-3827, 2015 WL 1379024, at * 11 (S.D.N.Y. Mar. 25, 2015) (leave application that asserted only a violation of New York's speedy trial statute “failed to alert the state courts that he was seeking relief on federal grounds”); Kirk v. Burge, 646 F. Supp. 2d 534, 543–44 (S.D.N.Y. 2009) (“Although [petitioner's] appellate brief raised a statutory speedy trial claim under New York State law, such a claim is insufficient to preserve a federal constitutional speedy trial claim.”). As stated above, Richardson's leave application, and his briefs to the Appellate Division, raised only his state statutory claims under C.P.L. § 30.30.

Finally, Richardson could have exhausted his claims by “alleg[ing] ․ a pattern of facts that is well within the mainstream of constitutional litigation.” Daye, 696 F.2d at 194. A federal constitutional speedy trial claim is analyzed under the factors set forth in Barker.

According to the Second Circuit,

The Supreme Court's decision in Barker ․ sets forth the four factors that must be considered in analyzing whether a defendant's constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly. These factors “must be considered together with such other circumstances as may be relevant,” and “have no talismanic qualities.” Rather, they require courts to “engage in a difficult and sensitive balancing process.”

United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012) (citations omitted) (quoting Barker, 407 U.S. at 530, 533). The Section 30.20 analysis conducted by New York state courts is substantially similar to the Barker analysis described above. The New York test, as enumerated in People v. Taranovich, 335 N.E.2d 303 (N.Y. 1975), requires consideration of (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay. Id. at 306.

The factual allegations in Richardson's leave application concern two of the Taranovich factors – the extent of the delay and the reason for the delay.¹⁸ Nowhere in his leave application, however, did he allege facts describing the nature of the underlying charges or the extent of pretrial incarceration as they relate to his speedy trial claim. Nor did he allege any facts regarding any prejudice to his defense that occurred due to the delay. Because Richardson did not allege facts concerning several factors and the constitutional test requires balancing of all factors, see Barker, 407 U.S. at 530, 533, Richardson's leave application did not allege a pattern of facts well within the mainstream of constitutional litigation. Richardson instead alleged a pattern of facts “not theretofore commonly thought to involve constitutional constraints.” Daye, 696 F.2d at 193.

For these reasons, Richardson did not alert the Court of Appeals to the constitutional nature of his speedy trial claims, and those claims are therefore unexhausted. See Phillips v. Warden, Clinton Corr. Facility, No. 08-CV-1887, 2010 WL 1189381, at *7 n.5 (E.D.N.Y. Mar. 29, 2010) (“[T]he state speedy trial right under § 30.30 is distinct from the federal constitutional speedy trial right and involves a different factual and legal analysis. For this reason, when [the] petitioner raised his statutory speedy trial claim at the appellate level, he did not present a federal claim to those courts.”); Vasquez v. Warden of Facility, No. 06-CV-4366, 2008 WL 6653635, at *3 (S.D.N.Y, Sept. 4, 2008) (report and recommendation) (“Although [the petitioner's] appellate attorney raised the speedy trial claim on direct appeal, the claim was based exclusively upon C.P.L. § 30.30 and New York State case law. It did not implicate the United States Constitution, Supreme Court cases, or other federal cases.”), adopted by 2009 WL 2432364 (Aug. 7, 2009); Smith v. Maher, 468 F. Supp. 2d 466, 470 (W.D.N.Y. 2006) (“[The petitioner's] brief ․ referred only to C.P.L. § 30.30, dealt only with state statutory ready-for-trial issues under C.P.L. § 30,30, and employed only state cases and state law analysis; there is no reference in the table of authorities or in the rest of the brief of to any federal case law or to the federal constitution. Clearly, the claim [the petitioner] raised in state court rested solely on state procedural grounds.”); see also Rodriguez v. Miller, No. 96-CV-4723, 1997 WL 599388, at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] CPL section 30.30 claim does not present the state court with the same factual and legal issues as a Sixth Amendment speedy trial claim. A Section 30.30 claim focuses on the calculation of certain time periods that should be excluded from the time within which the people must be ready for trial, whereas a Sixth Amendment speedy trial claim focuses on different issues and requires a different presentation.”).

b. Richardson's Constitutional Speedy Trial Claims Are Procedurally Barred

If a habeas petition presents unexhausted claims, the federal court must determine whether the petitioner would be able to return to state court to exhaust those claims. Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). An unexhausted claim for which the petitioner cannot obtain further review in state court is deemed procedurally defaulted. Id. (“[I]f the state prisoner fails to exhaust his state remedies in a manner in which, were he to return to the state courts with his unexhausted claim, those courts would find the claim barred by the application of a state procedural rule, we must deem the claim procedurally defaulted.” (internal quotation marks and citations omitted)); see Smith v. Capra, No. 13-CV-2104, 2013 WL 6501693, at *6 (S.D.N.Y. Dec. 11, 2013) (“If a petitioner with an unexhausted claim would not be permitted to return to state court to exhaust his claims because no state corrective procedure remains available, a federal court may deem the unexhausted claim exhausted.” (alterations and internal quotation marks omitted)).

Here, Richardson cannot return to the state courts to exhaust his constitutional speedy trial claims. First, he could not seek leave to appeal to the New York Court of Appeals for a second time because New York law permits only one such application. See N.Y. Ct. R. § 500.20(a)(2) (indicating that “only one application” for leave to appeal a criminal conviction “is available”). Second, the timeframe in which Petitioner could have sought reargument or reconsideration of the Court of Appeals’ May 4, 2021 denial of his application for leave to amend has long since passed. Id. § 500.20(d) (“Unless otherwise permitted by the assigned Judge, the reargument or reconsideration request shall be served not later than 30 days after the date of the certificate determining the application of which reargument or reconsideration is sought.”)

Third, Richardson cannot now collaterally attack the conviction on constitutional speedy trial grounds because these claims could have been raised on direct appeal. See, e.g., Garrett v. Superintendent of Bedford Hills Corr. Facility, No. 10-CV-3093, 2013 WL 6199971, at *2 (E.D.N.Y. Nov. 27, 2013) (“[A] C.P.L. § 440.10 motion may not be employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal or could readily have raised it on appeal but failed to do so” (ellipses and internal quotation marks omitted)); Newborn v. Smith, No. 09-CV-4844, 2013 WL 504391, at *5 (E.D.N.Y. Feb. 7, 2013) (“New York law permits a defendant to collaterally attack a judgment of conviction obtained in violation of his constitutional rights but requires that any such motion be denied where the defendant unjustifiably failed to raise the constitutional violation on direct appeal, despite the availability of a sufficient record[.]” (citation omitted)); O'Kane v. Kirkpatrick, No. 09-CV-5167, 2011 WL 3809945, at *7 (S.D.N.Y. Feb. 15, 2011) (“Under New York law, all claims that are record-based must be raised in a direct appeal ․ It is only when a defendant's claim hinges upon facts outside the trial record, that he may collaterally attack his conviction by bringing a claim under CPL § 440.10”), adopted by 2011 WL 3918158 (S.D.N.Y. Aug. 25, 2011); Hogan v. West, 448 F. Supp. 2d 496, 506–07 (W.D.N.Y. 2006) (“[A] New York court must deny a § 440.10 motion where the movant unjustifiably failed to raise the constitutional violation on direct appeal despite a sufficient record to have permitted such an appeal.”); Douglas v. Hollins, No. 00-CV-7928 (MBM), 2004 WL 187130, at *7 (S.D.N.Y. Jan. 29, 2004) (because petitioner's speedy trial claim was matter of record that could have been raised on direct appeal, his claim was waived under § 440.10(2)(c) and therefore procedurally defaulted for purposes of habeas review).

Richardson's constitutional speedy trial claim is therefore deemed exhausted, but procedurally barred. See, e.g., Dowtin v. Cohen, 179 F. App'x 737, 739 (2d Cir. 2006) (“State-court remedies for this claimed violation are no longer available because [petitioner] has already taken his one direct appeal and this claim is procedurally barred from consideration on collateral attack on his conviction. [The petitioner's] claim is therefore procedurally defaulted ․” (citations omitted)); Calderon v. Perez, No. 10-CV-2562, 2011 WL 293709, at * 19 (S.D.N.Y. Jan. 28, 2011) (“For exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred․ Consequently, such procedurally barred claims are deemed exhausted by the federal courts.” (cleaned up) (citations omitted), adopted by 2011 WL 1405029 (Apr. 5, 2011); Maher, 468 F. Supp. 2d at 471 (“Because he failed to raise his claim in state court and no longer may do so, his claim—although deemed exhausted—is procedurally defaulted.”); Walker v. Bennett, 262 F. Supp. 2d 25, 29 (W.D.N.Y. May 15, 2003) (“An unexhausted claim will be deemed exhausted if state procedural rules bar the petitioner from raising the claim before the New York Court of Appeals.”).

c. Richardson Cannot Overcome The Procedural Bar

A procedural default bars federal habeas review of a claim unless the petitioner shows either “cause for the default and prejudice” from a violation of his federal rights, or that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 615 (1998) (internal quotation marks and citations omitted); see also Coleman v. Thompson, 501 U.S. 722, 748–50 (1991).

To establish cause for a default, a petition must show circumstances “external to the petitioner, something that cannot fairly be attributed to him.” Coleman, 501 U.S. at 753. Here, Richardson raised his state speedy trial claims under Section 30.30 in his counseled appeal to the Appellate Division and his counseled application for leave to the Court of Appeals. He alleges no facts explaining why he did not raise his constitutional claims on appeal, and nothing in the record suggests that his counsel was ineffective or that there was any other external cause that prevented him from raising those claims.

Although the Supreme Court has not given “precise content” to the term “prejudice,” see Sykes, 433 U.S. at 91, the prejudice must be sufficient “to overcome society's justified interests in the finality of criminal judgments,” United States v. Frady, 456 U.S. 152, 175 (1982). Richardson alleges no facts establishing that he suffered prejudice as a result of any alleged constitutional speedy trial violations. And in any event, as discussed below, the record does not show that his constitutional speedy trial rights were violated.

Finally, Richardson has not asserted – nor does the record support a finding – that he is actually innocent. An actual innocence claim must be both “credible” and “compelling.” Hyman v Brown, 927 F.3d 639, 655 (2d Cir. 2019) (quoting House v. Bell, 547 U.S. at 521, 538 (2006)). For a claim of actual innocence to be “credible,” it must be supported by new reliable evidence that was not presented at trial. Rivas v. Fischer, 687 F.3d 514, 541 (2d Cir. 2012) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). For a claim to be “compelling,” a petitioner must show that “more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt – or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” Id. (quoting House, 547 U.S. at 538). The standard of innocence in this context “references ‘factual innocence, not mere legal insufficiency.’ ” Hyman, 927 F.3d at 657 (citing Bousley, 523 U.S. at 623).

In his petition and accompanying documents, Richardson does not provide any new evidence – much less any credible and compelling new evidence – demonstrating that he is actually innocent. Instead, as discussed above, Richardson's submissions focus almost exclusively on his arguments that the state courts misapplied New York's speedy trial statute, C.P.L. § 30.30. He alleges no facts that would cause a reasonable juror to doubt his guilt in light of the witness testimony, recorded phone calls, and other evidence presented at trial. Nowhere in his submissions does Richardson even suggest that he is actually innocent of the crimes of which he was convicted.

For these reasons, any constitutional speedy trial claim that Richardson seeks to assert is deemed exhausted and procedurally barred from review in a federal habeas petition.

d. Any Constitutional Speedy Trial Claim Is Meritless

Even if his Sixth Amendment speedy trial claims were properly exhausted or that Richardson could overcome the procedural bar, and this Court could therefore consider those claims, such claims are meritless.¹⁹

Unlike C.P.L. § 30.30, which requires the prosecution to be ready for trial within six months, the Supreme Court has “refused to ‘quantif[y]’ the [Sixth Amendment] right ‘into a specified number of days or months.’ ” Vermont v. Brillon, 556 U.S. 81, 89–90 (2009) (citing Barker, 407 U.S. at 530)). To determine whether a pre-trial delay amounts to a constitutional violation, courts weigh the four factors set forth by the Supreme Court in Barker, 407 U.S. at 530. These factors

must be considered in analyzing whether a defendant's constitutional right to a speedy trial has been violated: (1) the length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right in the run-up to the trial; and (4) whether the defendant was prejudiced by the failure to bring the case to trial more quickly. These factors “must be considered together with such other circumstances as may be relevant,” and “have no talismanic qualities.” Rather, they require courts to “engage in a difficult and sensitive balancing process.”

United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012) (citations omitted) (quoting Barker, 407 U.S. at 530, 533). The Court will analyze each factor in turn.

i. The Length of the Delay

Under Barker, “[t]he length of the delay is to some extent a triggering mechanism.” 407 U.S. at 530. Courts “will only consider the other Barker factors when the defendant makes a showing ․ ‘that the interval between the accusation and trial has crossed the threshold dividing ordinary from presumptively prejudicial delay.’ ” United States v. Ghailani, 733 F.3d 29, 43 (2d Cir. 2013) (quoting Doggett v. United States, 505 U.S. 647, 651-52 (1992)); see Barker, 407 U.S. at 530 (“Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”).²⁰ Although “the definition of ‘presumptively prejudicial remains less than precise[,]” Ghailani, 733 F.3d at 43, there is a “general consensus” in the Second Circuit that a delay of more than eight months is “presumptively prejudicial” and triggers further inquiry into the other Barker factors, see United States v. Vassell, 970 F.2d 1162, 1164 (2d Cir. 1992); United States v. Ostroff, 340 F. Supp. 2d 362, 366 (S.D.N.Y. 2004) (“The Second Circuit has noted that there is a general consensus that a delay of over eight months meets this standard, while a delay of less than five months does not[.]” (internal quotation marks omitted)); Fisher v. Superintendent, No. 12-CV-6703, 2014 WL 128015, at * 15-16 (S.D.N.Y. Jan. 14, 2014) (ten month delay “was just beyond [the Second] Circuit's outer boundary of eight months for presumptive prejudice”). The “relevant interval” for a defendant's “Sixth Amendment speedy trial claim is from the first indictment or arrest to trial.” United States v. Black, 918 F.3d 243, 259 (2d Cir. 2019).

Here, the relevant delay was between the filing of the felony complaint on January 13, 2011, through the start of trial on May 6, 2013. Because this approximately 28-month period (845 days) exceeds the eight-month outer boundary for presumptive prejudice, further inquiry of the remaining Barker factors is necessary.²¹

ii. The Reason for the Delay

Under the second Barker factor – the reason for the delay – the relevant question is “whether the government or the criminal defendant is more to blame for th[e] delay.” Doggett, 505 U.S. at 651. “Deliberate delay ‘to hamper the defense’ weighs heavily against the prosecution.” Brillon, 556 U.S. at 90 (quoting Barker, 407 U.S. at 531). On the other hand, “delay caused by the defense weighs against the defendant.” Id. (citing Barker, 407 U.S. at 529). Moreover, “[b]ecause ‘the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation,’ delay caused by defendant's counsel is also charged against the defendant.” Id. at 90–91 (quoting Coleman, 501 U.S. at 753).

Much of the delay in bringing Richardson to trial was caused by litigation of his pre-trial motions, a cause which weighs in favor of the government. See United States v. Reyes-Batista, 844 F. App'x 404, 407 (2d Cir. 2021) (“Reyes-Batista compounded this self-inflected delay by engaging in extensive pre-trial motion practice.”); United States v. Swinton, 797 F. App'x 589, 595 (2d Cir. 2019) (adjudication of a complex omnibus motion “took much of the time between the issuance of the indictment and the start of trial” and therefore “cuts in favor of the government”); United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (discounting much of a 26-month delay because “most of th[at] [time] ․ was consumed by consideration of defendants’ various pretrial motions”); United States v. Arrington, No. 15-CR-33-A, 2022 WL 1784808, at *9 (W.D.N.Y. June 1, 2022) (attributing to defendant delay caused by filing of “a multitude of non-dispositive and dispositive pretrial motions of varying levels of complexity”); Rodriguez v. Superintendent, Collins Corr. Facil., 549 F. Supp. 2d 226, 240 (N.D.N.Y. 2008) (finding delay did not violate Sixth Amendment where the reason for the delay “was, in large measure, due to the pretrial motions filed by petitioner's counsel”).

Richardson's pretrial motions were under consideration by the trial court during the following time periods: (1) between March 15 and May 3, 2011 (49 days), the court considered his initial omnibus motion, see SR 407, 408–14; (2) between July 17 and August 13, 2012 (27 days), the court considered his first C.P.L. § 30.30 motion, see SR 290, 341–43; (3) between November 1, 2011, and April 3, 2012 (154 days), the court conducted a hearing and considered Richardson's suppression motions, see SR 424–30; (4) between April 25 and May 15, 2012 (20 days), the court considered Richardson's motion to sever, see id. at 269–70; (5) between January 3 and January 14, 2013 (11 days), the court considered his second C.P.L. § 30.30 motion, see id. at 385–90, 558–61; and (6) between March 20 and April 4, 2013 (16 days), the court considered his third C.P.L. § 30.30 motion, see id. at 562–63. This delay of approximately 277 days during which Richardson's pretrial motions were pending before the trial court weighs in favor of the government.

Delays attributable to defense counsel's unavailability are also attributable to Richardson and weigh in favor of the government. See James v. Keysor, No. 20-CV-3468, 2023 WL 137618, at *5 (S.D.N.Y. Jan. 9, 2023) (delay requested by defense counsel due to unavailability was attributable to defendant); United States v. Foley, No. 3:18-CR-0333, 2020 WL 423342, at *7 (D. Conn. Jan. 27, 2020) (defense counsel's unavailability attributable to defendant). Here, the trial court adjourned this case for three periods because defense counsel was engaged in unrelated matters: between June 8 and August 3, 2011 (56 days), see ECF 15-4, at 2, 4; SR 285; between August 27 and September 5, 2012 (9 days), see SR 559; and between October 22 and November 14, 2012 (23 days), see ECF 16-6, at 8; SR 560.²² Therefore, approximately 88 additional days are attributable to Richardson.²³ In sum, Richardson's pretrial motions and his defense counsel's unavailability account for a total of 365 days, or approximately one year of the delay.

As Respondent points out, another reason for the delay was the People were unable to locate Coleman, the victim of the crime and a witness before the grand jury. It was not until March 2013 that Coleman was arrested in North Carolina on a material witness warrant and returned to New York. The Supreme Court has held that “a valid reason, such as a missing witness, should serve to justify appropriate delay.” Barker, 407 U.S. at 531. The delay attributable to the prosecution's search for Coleman should therefore not be held against the government. See United States v. Fasanaro, 471 F.2d 717, 717 (2d Cir. 1973) (per curiam) (no violation where much of four-year delay was attributed to locating key witness); Taylor v. Rivera, 07-CV-8668, 2011 WL 4471919 at *22 (S.D.N.Y. Apr. 18, 2011) (no violation where much of two-year delay was attributed to locating a key witness), adopted by 2011 WL 4472146 (Sept. 27, 2011), aff'd, 509 F. App'x 51 (2d Cir. 2013); Mallet v. Miller, 432 F. Supp. 2d 366, 381–84 (S.D.N.Y. 2006) (no violation where much of 30-month delay was attributed to locating key witness).

Finally, Richardson offers no evidence demonstrating that the government engaged in deliberate delay. See Cabral, 979 F.3d at 158 (“Delay caused by deliberate government misconduct for tactical reasons weighs strongly in favor of finding a speedy trial violation, while government negligence ‘should be weighted less heavily.’ ” (quoting Barker, 407 U.S. at 531)); Fisher, 2014 WL 128015, at *16 (“[T]here is no evidence that the government was attempting to delay the trial as a strategy, and some of the delay is attributable to [defendant][.]”).²⁴

iii. Richardson's Assertion of His Constitutional Speedy Trial Right

The third Barker factor is the defendant's assertion of the right. The Second Circuit has observed that the inquiry under this factor “is a fluid one that concerns itself with whether the government and court were ‘put on notice’ that a defendant has asserted his right to a speedy trial.” United States v. Black, 918 F.3d 243, 263 (2d Cir. 2019) (quoting United States v. New Buffalo Amusement Corp., 600 F.2d 368, 378 (2d Cir. 1979)). Here, Richardson filed multiple speedy trial motions in the state court, beginning with his first such motion on July 17, 2012. See SR 341–43.

Respondent argues that this factor does not weigh in either party's favor because Richardson only moved to dismiss the indictment under C.P.L. § 30.30 and did not raise the constitutional issue in state court. ECF 15-1, at 24; see Yampierre v. Phillips, No. 05-CV-2249, 2010 WL 744526, at *11 (E.D.N.Y. Mar. 1, 2010) (petitioner's assertion of his speedy trial right “does not weigh in either party's favor, since petition moved to dismiss the indictment on speedy trial grounds prior to trial, but failed to bring up the constitutional issue”)). While it is true that Richardson did not raise the constitutional issue in his direct appeal, his second speedy trial motion in the trial court made at least passing mention of C.P.L § 30.20 and his constitutional right to a speedy trial. See SR 535 (January 3, 2013 affirmation from Richardson's counsel asserting arguments exclusively under C.P.L. § 30.30, but concluding by asking the court to issue an order pursuant to C.P.L. §§ 30.20, 30.30(1)(a), “dismissing the indictment on the ground that defendant has been denied his statutory and constitutional rights to a speedy trial”). In denying that motion, the state court recognized Richardson's assertion of the constitutional claim, holding, “[i]n addition ․ defendant's motion under CPL 30.20, claiming a violation of his constitutional right to a speedy trial, is similarly denied.” Id. at 563.

The Supreme Court and Second Circuit have also considered a defendant's fugitivity under this prong. In Barker, the Supreme Court determined that the defendant's speedy trial right had not been violated because the record established that the defendant “did not want a speedy trial.” 407 U.S. at 534. The Second Circuit has held that “when it is manifestly apparent that a defendant has no serious interest in the speedy prosecution of the charges against him, a court need not ignore the defendant's fugitivity or recalcitrance in determining whether his [S]ixth [A]mendment rights have been violated.” Rayborn v. Scully, 858 F.2d 84, 92 (2d Cir. 1988) (“Rayborn's status as a bail jumper, absconder, and fugitive during much of the eighty-six months of delay weighs heavily against him in our analysis of his speedy trial claim.”). Here, Richardson was released from custody prior to trial pursuant to the state speedy trial statute and with the consent of the prosecution. See ECF 15-6, at 3–6. That he subsequently failed to return for trial, prompting the court to issue a bench warrant, and was only apprehended and returned for sentencing nearly seven months after being convicted, weighs against Richardson in the analysis of his claim.

Because Richardson invoked his constitutional speedy trial right prior to trial, but also failed to appear for trial, this factor weighs neither in favor of Richardson nor the government.

iv. Prejudice Caused by the Delay

The final Barker factor is the prejudice to the petitioner caused by the delay. Barker, 407 U.S. at 530. In Doggett, the Supreme Court identified three principal types of harm that potentially arise from the “unreasonable delay” between indictment and trial: (1) “oppressive pretrial incarceration”; (2) “anxiety and concern of the accused”; and (3) “the possibility that the accused's defense will be impaired by dimming memories and loss of exculpatory evidence.” 505 U.S. at 654 (quoting Barker, 407 U.S. at 532 (brackets omitted)). The Second Circuit has held that “if the government pursues a defendant with reasonable diligence, the Sixth Amendment claim fails ‘however great the delay’ unless the defendant can show ‘specific prejudice to his defense.’ ” Cabral, 979 F.3d at 163 (quoting Doggett, 505 U.S. at 655); see Cain, 671 F.3d at 297 (Second Circuit “generally require[s] a showing of some significant trial-related disadvantage in order to establish a speedy-trial violation”).

In none of his submissions – either to the state courts or in his petition to this Court – does Richardson identify any prejudice to him caused by the delay. His generalized assertions that he was denied due process or a fair trial are insufficient to demonstrate that any pre-trial delay prejudiced his trial. See Williams, 372 F.3d at 113 (district court did not abuse its discretion in weighing prejudice under Barker where defendant “failed to articulate prejudice from the delay with any specificity, only to say that ‘[w]itnesses have disappeared; recollections are dim; and the investigation is impaired’ ”); United States v. Blanco, 861 F.2d 773, 780 (2d Cir. 1988) (“Blanco's general claim that the delay impaired her defense also lacks force.”); Parrish v. Lee, No. 10-CV-8708, 2013 WL 12366173, at *7 (S.D.N.Y. Aug. 20, 2013) (“[A]part from his conclusory allegations, petitioner fails to demonstrate that his defense was impaired by the delay.”), adopted by 2015 WL 7302762 (S.D.N.Y. Nov. 18, 2015).

Nor can this Court, in its independent review of the record, identify any prejudice to Richardson as a result of any delay in bringing him to trial. He was not subject to “oppressive pretrial incarceration” or “anxiety or concern.” Doggett, 505 U.S. at 654. In fact, in September 2012, the People consented to Richardson's release from custody on these charges pursuant to C.P.L. § 30.30(2)(a). SR 130, 141 n.19; ECF 15-1, at 9.²⁵ He failed to return for trial and was tried in absentia. He was not returned to custody until February 2014, approximately seven months after he was convicted and sentenced. See SR 110. Richardson's total period of pretrial incarceration on these charges appears to be approximately 20 months, from January 2011 to September 2012. Courts have repeatedly found no prejudice with respect to periods of pre-trial incarceration exceeding that to which Richardson was subjected. See, e.g., United States v. Alvarez, 541 F. App'x 80, 84 (2d Cir. Oct. 21, 2013) (little, if any prejudice despite “years of pre-trial incarceration”); Vasquez, 918 F.2d at 338 (26 months “incarceration in the pretrial period was a hardship and must be included in the assessment of ‘prejudice.’ But, the circumstances here do not ‘approach the prejudice suffered by defendants in cases where we have found a speedy trial violation.’ ” (quoting Flowers v. Warden, 853 F.2d 131, 133–34 (2d Cir. 1988) (17 months of pretrial incarceration not enough for prejudice)); Smith v. LaClair, No. 04-CV-4356, 2008 WL 3058250 at *5 (S.D.N.Y. Aug. 5, 2008) (no constitutional violation despite pretrial incarceration of approximately two years), aff'd, 353 F. App'x 486 (2d Cir. 2009); Thomas v. Phillips, No. 04–CV–0906, 2006 WL 39239 at *10 (E.D.N.Y. Jan. 5, 2006) (no constitutional violation despite 22 months of pretrial incarceration).

The final factor – impairment to the defense – is the “most serious” in the analysis of prejudice. Barker, 407 U.S. at 532. Nothing in the record demonstrates that Richardson's defense was impaired by “dimming memories” or “loss of exculpatory evidence.” The record instead demonstrates that Richardson was convicted on the basis of the testimony and other evidence presented at trial.

Because Richardson has not identified any prejudice due to the alleged delays and because the Court's review of the record identifies no prejudice, the final Barker factor weighs in favor of the government. See United States v. Howard, 443 F. App'x 596, 599 (2d Cir. 2011) (“[t]he fourth and final Barker factor ․ does not weigh in [defendant's] favor because other than incarceration, [defendant] has neither alleged, nor established that he was prejudiced by the delay”).

v. Balancing of the Factors

As noted above, “none of the four factors ․ [is] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” Barker, 407 U.S. at 533.

A delay of approximately 28 months is significant and weighs in favor of Richardson. The reason for the delay, however, weighs in favor of Respondent and the Court places greater weight on this factor. As the state courts determined, a significant amount of the delay was attributable to Richardson's pre-trial motions, his defense counsel's unavailability, and the People's search for Coleman – the victim and a key witness at trial. Furthermore, Richardson has put forth no allegations showing that the delay was in any way attributable to government malfeasance or negligence.

The third factor – Richard's assertion of his speedy trial rights – is neutral; it weighs neither in favor of Richardson nor the government. In any event, given the weight of the other factors, the Court assigns relatively little significance to this factor. See Cabral, 979 F.3d at 157 & n.3 (no error where district court assigned little weight to this factor).

The fourth factor – the prejudice to the defendant – weighs strongly in favor of the government. “Although a showing of prejudice is not a prerequisite to finding a [S]ixth [A]mendment violation, courts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice.” United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997) (internal quotation marks omitted). Richardson has failed to allege any concrete prejudice to his defense that occurred as a result of the delay. Nor could the Court, in its independent review of the record, identify any prejudice to Richardson's defense resulting from the delay.

When considering all the Barker factors, even with factor one weighing in his favor, Richardson has not established that his Sixth Amendment right to a speedy trial was violated.

III. CONCLUSION

For the foregoing reasons, Richardson's petition should be denied.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections (plus three days because the Report is being mailed to Petitioner). See Fed. R. Civ. P. 6(a). A party may respond to any objections within fourteen (14) days after being served. Subject objections, and any responses to objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain at the United States District Court, Southern District of New York, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at the same address. Any requests for an extension of time for filing objections must be directed to Judge Swain.

FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).

If Richardson does not have access to cases cited herein that are reported on LexisNexis or Westlaw, he should request copies from counsel for the Respondent. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); Local Civil Rule 7.2, Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.

FOOTNOTES

1.   The jury trial transcript can be found on the docket at ECF 15-8, at 232, through ECF 15-12, at 113.

2.   Pages SR 001 through SR 400 are available on the docket at ECF 15-2. Pages SR 401 through SR 594 are available at ECF 15-3.

3.   State court transcripts for hearings and proceedings other than the trial are referred to using the docket and page numbers assigned by the court's electronic filing system (“ECF”).

4.   McGregor was later acquitted at trial.

5.   During a hearing on September 27, 2012, Richardson and McGregor were ordered to be released with the prosecution's consent. Because Richardson had unspecified prior holds, the judge set his bail at $1. See ECF 15-6, at 5–6. The record indicates that Richardson was released from Department of Correction custody on December 31, 2012, when a “parole hold was lifted.” ECF 15-12, at 139, 141.

6.   On November 18, 2015, Richardson was convicted of attempted assault of Coleman, criminal possession of a weapon, attempted witness intimidation and bail jumping. Richardson was sentenced to an aggregate term of 23 years to life, with the sentence to run consecutively to the sentence imposed in this case. See SR 27–28 n.3; id. at 110 n.2.

7.   Under C.P.L. § 30.30, the prosecution was required to commence Richardson's trial within 181 days following the filing of the felony complaint on January 13, 2011, not counting any periods that were excludable pursuant to specific statutory exemptions. See People v. Smith, 82 N.Y.2d 676, 677 (1993). To be ready for trial for purposes of Section 30.30, the prosecution must: “(1) declare in open court that they are ready or file an off-calendar certificate of readiness and serve it on defense counsel, and (2) in fact be ready to proceed at the time they declare readiness.” People v. Sibblies, 22 N.Y.3d 1174, 1177 (2014) (cleaned up).

8.   Richardson characterized the December 17, 2012 certificate of readiness as a “desperate bid to stop the clock – even though nothing had changed since the previous three times they stood up in court and said they were not ready because they did not have their complaining witness.” SR 40

9.   The Appellate Division reasoned that Richardson was able to use the notes to cross-examine the victim, pointed out that Richardson never requested a continuance to attempt to locate the author of the notes, the then-retired detective, and determined that his assertion that the detective's testimony would have been helpful to the defense “is speculative, and there is no reasonable possibility that the result of the trial would have been different if the notes had been disclosed earlier.” SR 433–34.

10.   The Appellate Division also determined that Richardson did not preserve his “other arguments relating to the court's response to the jury note,” and declined to review those claims. SR 434.

11.   See also SR 255 (“The question presented on this appeal is whether CPL § 30.30 automatically authorizes the exclusion of time after the conclusion of pre-trial motion practice – even if those delays are not shown to result from the motion or to be reasonable.”).

12.   See also SR 259 (“This Court should grant leave to clarify the circumstances in which defense counsel's stated unavailability can justify an exclusion of time, and for how long.”).

13.   A judgment of conviction becomes final, triggering the one-year limitations period to file a Section 2254 petition, when the time expires for filing a petition for a writ of certiorari in the U.S. Supreme Court. Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Due to the COVID-19 pandemic, the U.S. Supreme Court temporarily extended the time to petition for certiorari, from 90 days to 150 days for any case where the petition was due on or after March 19, 2020. See United States Supreme Court Order of March 19, 2020, https://www.supremecourt.gov/orders/courtorders/031920zr_d1o3.pdf (last viewed Feb. 15, 2024). On July 19, 2021, the Supreme Court rescinded the extension for any case in which the relevant order denying discretionary review issued on or after July 19, 2021. See United States Supreme Court Order of July 19, 2021, https://www.supremecourt.gov/orders/courtorders/071921zr_4g15.pdf (last viewed Fed. 15, 2024). Here, the New York Court of Appeals denied leave to appeal on May 4, 2021, and Richardson's judgment of conviction therefore became final 150 days thereafter, on October 1, 2021. He therefore had until October 1, 2022, to file a timely Section 2254 petition.

14.   In his habeas petition, Richardson did not raise his Brady claim or his claims arising from the trial court's denial of his request for a missing witness charge and a justification charge. Even though such claims may contain a constitutional component, constitutional claims not raised in the petition are not before the Court, and petitioners, including pro se petitioners, have a right to decide which issues they wish to pursue in a federal habeas petition. See Jerger v. Dir., No. 6:21-CV-099, 2022 WL 3975047, at *3 (E.D. Tex. Aug. 2, 2022) (petitioner has “the power to raise the claims that he wishes to pursue and omit those that he does not wish to pursue” and court “should not second-guess that decision” (internal quotation marks and citation omitted)), adopted sub nom. Jerger v. Dir., TDCJ-CID, 2022 WL 3975042 (Aug. 30, 2022). Because Richardson did not raise those claims in his petition, the government did not respond to them, and Richardson made no mention of them in his reply, the Court declines to address whether those claims were properly exhausted on appeal or decide the merits of those claims. See Folkes v. Nelson, 34 F.4th 258, 269 (4th Cir. 2022) (“Nothing authorizes a district court to expand or contract a petitioner's claim sua sponte.”); id. at 269–70 (“Courts of appeals have expressly recognized the district court's duty to consider only the specific claims raised in a § 2254 petition.” (collecting cases)).

15.   For the purposes of this analysis, the Court construes Richardson's application for leave to appeal and his supplemental letter as a single application for leave to appeal to the Court of Appeals.

16.   While Richardson refers to constitutional claims in the list of issues at the end of his leave application, see SR 261, those references are not relevant to his speedy trial claims.

17.   In a motion before the trial court, Richardson did invoke Section 30.20 and included passing reference to his constitutional speedy trial right. See SR 531 (affirmation in support of Richardson's January 3, 2013 motion to dismiss on speedy trial grounds concluding, “[T]his Court should thus issue an order, pursuant to C.P.L. §§ 210.20(1)(g), 30.20 and 30.30(1)(a), dismissing the indictment on the ground that defendant has been denied his statutory and constitutional rights to a speedy trial”). The trial court addressed the constitutional argument when denying Richardson's motion. See id. at 563 (“In addition, on the record before the Court, defendant's motion under CPL 30.20, claiming a violation of his constitutional right to a speedy trial, is similarly denied.”). As discussed above, Richardson did not raise any constitutional arguments or refer to the Sixth Amendment's speedy trial guarantee or C.P.L. § 30.20 in his submission to the Appellate Division or the Court of Appeals.

18.   The third Barker factor – whether the defendant asserted his speedy trial claims before the trial – is not part of the Taranovich test. Because Richardson's claims in his leave application focused, in part, on the trial court's decisions in his pre-trial C.P.L. § 30.30 motions, it is fair to conclude that Richardson alerted the Court of Appeals to the fact that he invoked his state speedy trial rights under that statute in the run-up to trial.

19.   While Richardson casts his constitutional claims in terms of his right to “due process” or to a “fair trial,” (see ECF 2, at 6, 11), the Court construes the petition as asserting claims under the Speedy Trial Clause of the Sixth Amendment. Richardson's memorandum of law includes a reference to Barker, the Supreme Court case that sets forth the standards for a speedy trial claim under the Sixth Amendment. See id. at 14. Furthermore, his reply to Respondent's opposition explicitly invokes the Sixth Amendment and again references Barker. (See ECF 17.) Moreover, as Respondent points out, a petitioner cannot rely on broad constitutional terms such as substantive due process where a more specific constitutional right – such as the right to a speedy trial – would better characterize the claim. See United Sates v. Medunjanin, 752 F.3d 576, 590–91 (2d Cir. 2014) (citing Albright v. Oliver, 510 U.S. 266, 273 (1994)). For these reasons, the Court construes Richardson's constitutional claims as arising under the speedy trial protections guaranteed by the Sixth Amendment.

20.   The Second Circuit has emphasized that a delay that is “presumptively prejudicial” (i.e., long enough to trigger a Sixth Amendment inquiry) should not be confused with a delay that is so long as to cause “presumptive prejudice” (i.e., prejudice that need not be specifically shown) under the fourth Barker factor. United States v. Cabral, 979 F.3d 150, 157 (2d Cir. 2020) (citation omitted). “The former bears upon the need for a Barker analysis, whereas the latter bears upon the merits of that analysis.” United States v. Moreno, 789 F.3d 72, 78 n.3 (2d Cir. 2015).

21.   In its opposition to the petition, Respondent discounts the length of the delay by arguing that “[b]oth the Supreme Court and Second Circuit have found that no speedy trial violation occurred in cases involving significantly longer delays.” ECF 15-1, at 22 (citing, inter alia, United States v. Loud Hawk, 474 U.S. 302, 309 (1986) (delay of over 7 years); Barker, 407 U.S. at 533–34 (delay of over 5 years); United States v. Lane, 561 F.2d 1075, 1078–79 (2d Cir. 1977) (delay of 58 months); United States v. Williams, 372 F.3d 96, 112–13 (2d Cir. 2004) (delay of 3 years)). Although it is true that the courts in these cases found no Sixth Amendment violation, they did not conclude that delays of those lengths were not presumptively prejudicial so as to preclude review of the remaining Barker factors. See, e.g., Loud Hawk, 474 U.S. at 314–17 (balancing the Barker factors); Williams, 372 F.3d at 112–13 (reviewing district court's weighing of the Barker factors).

22.   Richardson argued in the state courts and in his petition that the trial court erred in holding that the periods from June 8 and August 3, 2011, and from October 22 to November 14, 2012, were excludable under C.P.L. § 30.30. See SR 53–57; ECF 2, at 12. The state courts rejected those claims, however, and, in any event, those claims arise under state law and this Court will not review state court interpretations of state law. See Estelle, 502 U.S. at 67–68.

23.   In its opposition, the government argues that somewhat longer periods of time should be attributable to Richardson due to his counsel's unavailability. See ECF 15-1, at 23 n.5. The Court here bases its calculations – which are more favorable to Richardson – on its reading of the record and the state court's determinations on delays that should be attributable to Richardson's counsel's unavailability.

24.   Richardson's argument in the state courts that the prosecution's certificate of readiness was illusory could be construed as an assertion of bad faith of deliberate gamesmanship on the government's behalf. The state court rejected that argument, however. See Richardson, 192 A.D. 3d at 432. In any event, the certificate of readiness is a state law requirement, and questions of state law are not cognizable on federal habeas review. See Estelle, 502 U.S. at 67–68.

25.   It appears from the record that Richardson was detained on another matter, possibly a parole hold arising from a previous conviction, until December 2012.

JAMES L. COTT United States Magistrate Judge