Fowler v. Bradford

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Nero Fowler,
Plaintiff,
v. 9:23-CV-768
(GTS/MJK)
D. Bradford,
Defendant.
_____________________________________________________________________
Nero Fowler, Petitioner, pro se
Robert C. McIver, Esq., Asst Attorney General, for Respondent
Mitchell J. Katz, U.S. Magistrate Judge
To Honorable Glenn T. Suddaby, U.S. District Judge:
ORDER & REPORT-RECOMMENDATION
United States District Judge Glenn T. Suddaby referred the
Petition (Dkt.1) seeking a writ of habeas corpus pursuant to 28 U.S.C. §
2254, to the Court for a report and recommendation.1 Fowler waited
nearly seven years for assigned-appellate counsel to perfect the appeal
of his criminal conviction, and for the New York State Supreme Court
Appellate Division Fourth Department to decide his case. In his
1 The District Court has the authority to refer petitions under section 2254
pursuant to Habeas Rule 10, 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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Petition, Fowler argued that the nearly-seven-year delay violated his
due process rights. He also argues that his due process rights were
violated because appellate counsel was ineffective because of the delay.
For the reasons below, the Court recommends the District Court deny
the Petition.
I. BACKGROUND
A. State court trial and conviction
Fowler was arrested, tried by New York State, and a jury
convicted him of third-degree criminal sale of a controlled substance
and third-degree criminal possession of a controlled substance.
(Petition, Dkt. 1, at pg. 5). On July 24, 2018, Oneida County Supreme
Court sentenced Fowler to 12 years in prison and three years of post-
release supervision. (Id.).
B. Fowler’s appeal
On August 3, 2018, Fowler’s trial counsel filed a timely notice of
appeal. (Petition Exhibits, Dkt. 1-1, at pg. 1). On March 15, 2019, over
seven months later, the Fourth Department assigned Fowler appellate
counsel. (Id. at pg. 2.) Appellate counsel sought—and the Fourth
Department granted—numerous time extensions to perfect Fowler’s
appeal. See (Id. at pgs. 4 – 13). Nearly five years after they were
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assigned—appellate counsel perfected Fowler’s appeal on January 25,
2024. (McIver Decl., Dkt. 19-1 at ¶3). On June 27, 2025—roughly a year
and a half after the appeal was perfected—the Fourth Department
decided Fowler’s appeal. See People v. Fowler, 239 A.D.3d 1444 (4th
Dep’t 2025); see also (McIver Status Update Ltr., Dkt. 31, at pg. 1). Soon
after, the New York Court of Appeals denied Fowler leave to appeal the
Fourth Department’s decision. See People v. Fowler ---N.Y.3d ---, 2025
WL 3219617 (Oct. 28, 2025); see also (McIver Status Update Ltr., Dkt.
31, at pg. 1).
C. Fowler’s Petition
On June 26, 2023, Fowler filed this habeas petition. (Petition, Dkt.
1, at pg. 1). In his Petition, Fowler argued two grounds for habeas relief.
(Id. at pgs. 5, 7). First, Fowler argued that his due process rights were
violated “through [the] excessive delay of [his] direct appeal.” (Id. at pg.
5). Second, Fowler argued that his “right to effective assistance of
appellate counsel” has been denied because his “routine” appeal has
been “prejudiced by this delay.” (Id. at pg. 7). Specifically, Fowler
contends that “if not for the delay, [the] colorable claim of a Fourth
Amendment violation would be decided in [his] favor.” (Id.).
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Fowler acknowledges that both issues are “being raised for the
first time because [he is] being denied access [to] state court.” (Id. at
pgs. 6-7). He confirms that he has “sought no other remedies other than
filing [a] notice of direct appeal.” (Id.). Fowler requests a “conditional
writ,” and “bail set at a dollar conditioned on [the] appeal being decided
in [his] favor.” (Petition, Dkt. 1, at pg. 15). In his reply, Fowler
requested “immediate release, unconditional or in the alternative, bail
and or any relief this court finds [him] entitled to.” (Fowler Reply, Dkt.
25, at pg. 18).
II. GENERALLY APPLICABLE LAW
The Antiterrorism and Effective Death Penalty Act of
1996’s (“AEDPA”) exhaustion requirement.
“Before seeking a federal writ of habeas corpus, a state prisoner must
exhaust available state remedies, . . . thereby giving the State the
opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up);
see also 28 U.S.C. § 2254(b)(1). The prisoner must “fairly present” his
claim in each appropriate state court, including the highest court with
powers of discretionary review, thereby alerting that court to the
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federal nature of the claim. Baldwin, 541 U.S. at 59; see also Bossett v.
Walker, 41 F.3d 825, 828 (2d Cir. 1994).
“This rule of comity reduces friction between the state and federal
court systems by avoiding the unseemliness of a federal district court's
overturning a state court conviction without the state courts having had
an opportunity to correct the constitutional violation in the first
instance.” O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999) (cleaned up);
Indeed, “the interests of comity and federalism dictate that state courts
must have the first opportunity to decide a petitioner's claims.” Rhines
v. Weber, 544 U.S. 269, 273-74 (2005) (cleaned up).
Where a petitioner has been convicted in a New York state court,
they may exhaust their federal claims by challenging their conviction
and presenting the federal claims on direct appeal to the Appellate
Division, and then by seeking leave to appeal to the New York Court of
Appeals. See Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005). Where
a claim is not appropriate for direct appeal because it cannot be
demonstrated on the basis of the pretrial or trial record, a petitioner
may exhaust the claim by raising it to the state trial court in a
collateral post-conviction motion, typically in a motion made pursuant
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to Section 440 of the New York Criminal Procedure Law. See Reyes v.
Phillips, No. 02-CV-7319, 2005 WL 475544, at *4 (S.D.N.Y. Mar. 1,
2005) (“[A] motion under N.Y. Crim. Proc. Law § 440.10 was the
appropriate vehicle with which to exhaust [petitioner's] ineffective-
assistance-of-counsel claim insofar as it relied upon evidence outside
the record.”). To exhaust the claim fully, the petitioner must then seek
leave to appeal the denial of the Section 440 motion to the Appellate
Division. See Ture v. Racette, No. 12-CV-01864 (JKS), 2014 WL
2895439, at *4 (N.D.N.Y. June 26, 2014). New York law then provides
for no further discretionary appeal to the Court of Appeals. See Ramos
v. Walker, 88 F. Supp. 2d 233, 234 n.3 (S.D.N.Y. 2000).
Where a habeas claim has not been fully exhausted in the state
courts, federal courts may nonetheless deny the claim on the merits. See
28 U.S.C. § 2254(b)(2). Federal courts should only deny an unexhausted
claim where it is plainly meritless. See Edwards v. Superintendent,
Southport C.F., 991 F. Supp. 2d 348, 381 (E.D.N.Y. 2013).
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III. DISCUSSION
Fowler’s failure to exhaust his state court remedies
concerning his appellate delay claim is not excused.
The District Court should deny Fowler’s habeas petition. Fowler
admits that he did not seek relief from the state court concerning his
appellate delay claim, and the record is devoid of any effort upon which
the District Court may conclude that the exhaustion requirement
should be waived. As a result, Fowler is not entitled to habeas relief.
Fowler admits that he has not sought any state court remedies
concerning his appeal’s delay and appellate counsel ineffectiveness for
causing the delay. See (Petition, Dkt. 1, at pg. 6, 7, 8). So the issue here
is whether Fowler’s failure to exhaust the available state remedies is
because there has been a substantial delay of the state-court-criminal-
appeal process.
To be sure, courts can excuse a habeas petitioner’s failure to
exhaust when there has been substantial delay in the state-court-
criminal-appeal process. See Roberites v. Colly, 546 F. App’x. 17, 19 (2d
Cir. 2013) (summary order). When assessing whether delay excuses
exhaustion, courts consider: “(1) the length of the delay, (2) the reason
for the delay and the party responsible, (3) whether petitioner asserted
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his right to a decision, and (4) ensuing prejudice.” Id (citing Barker v.
Wingo, 407 U.S. 514, 530-33 (1972). “A court may also consider federal-
state comity in considering whether undue delay excuses a failure to
exhaust.” Id.
Length of Delay. Appellate counsel sought numerous extensions
and took nearly five years to perfect Fowler’s appeal. See (Petition
Exhibits, Dkt. 1-1, at pgs. 4 – 13); see also (McIver Decl., Dkt. 19-1 at
¶3). That nearly seven-year delay (from the time appellate counsel was
assigned to the case being decided) is more than enough to find this
factor in Fowler’s favor. See, e.g., Simmons v. Reynolds, 898 F.2d 865,
868 (2d Cir. 1990) (“First, the length of this delay, six years, was clearly
excessive”).
Reason for delay. The reason for the delay is the Oneida County
Public Defender (“OCPD”) office’s staffing issues and crushing
workload, and the Fourth Department’s decision to grant continuous
extensions. During the relevant time period, OCPD had a staffing
shortfall of 10 attorneys (employing 15 when it needed 25) while
handling roughly 7600 cases per year. (SR., Dkt. 19-2, at pg. 235). This
neutral factor weighs against the government. See Baker, 407 U.S. at
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531. (“A more neutral reason such as negligence or overcrowded courts
should be weighted less heavily but nevertheless should be considered
since the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant.”). Additionally “the
state court also must take some responsibility, for it has the means to
supervise its attorneys and may grant or deny enlargements of time
accordingly.” Vazquez v. Bennett, No. 00-CV-3070, 2002 WL 619282, at
*3 (S.D.N.Y. 2002). As a result, this Court finds that this factor
narrowly weighs in Fowler’s favor. See Baker, 407 U.S. at 531.
Asserted right to a decision. Fowler never asserted a right to have
this cases decided. If habeas petitioners do “not act quickly to require
that [their] appeal be heard, [they] cannot later argue that [they are]
entitled to release because the state court took too long to hear [their]
appeal.” Mathis v. Hood, 937 F.2d 790, 794 (2d Cir. 1991). Yet the
record also indicates Fowler’s indifference to his appeal. Sometime in
2021, Fowler started refusing to pick up letters from appellate counsel.
See (SR., Dkt. 19-2, at pg. 235). In response, OCPD sent Fowler three
letters to asking whether he wanted to continue his appeal “because he
rejected previous letters” and OCPD had not “heard from him since
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2021.” Id. Fowler never explains why he did not answer OCPD. See
generally (Petition, Dkt. 1). In fact, the record is devoid of any evidence
that Fowler tried to move his appeal forward or sought new appellate
counsel. It was not until after Fowler filed this habeas petition that
OCPD became aware of his desire to continue his appeal. See (SR. Dkt.
19-2, at pg. 235) (“Based on his Writ petition, I will presume that Mr.
Fowler wants to continue his appeal.”). Altogether, Fowler’s inaction
leads this Court to find that this factor decidedly weighs against
Fowler.
Fowler’s counter argument in unpersuasive. In opposition, Fowler
denies rejecting or refusing to accept his counsel’s correspondence.
(Fowler Reply, Dkt. 25, at pgs. 10, 12 ). Fowler contends that Mohawk
Correctional Facility requires prisoners to be placed on call-out in order
to go and retrieve legal mail, but prisoners have no way of knowing they
have legal mail. (Fowler Reply, Dkt. 25, at pgs. 10, 12). Even accepting
this argument, Fowler does not explain the lack of correspondence from
him to appellate counsel. Put simply, Fowler needed to do more. Cf.
Simmons, 898 F.2d at 867, 868 (2d Cir. 1990) (finding that Simmons
repeated efforts to assert his right to an appeal where Simmons, his
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family, and his casework contacted Legal Aid, the Kings County District
Attorney’s office, and the Appellate Division Second Department to
inquire about the appeal).
Prejudice. Habeas relief “would be appropriate only if the delay of
his appeal had prejudiced his due process rights so as to make his
confinement constitutionally deficient.” Diaz v. Henderson, 905 F.2d
652, 653 (2d Cir.1990). Neither Fowler’s petition nor his reply paper
articulate any legal prejudice—nor could he—as his appeal has been
decided and the delay getting there had no impact on the assessment of
his appellate claims. See Fowler, 239 A.D.3d 1444; see also Diaz, 905
F.2d at 653. (“Since Diaz’s appeal has now been heard, and he can make
no claim that it was constitutionally tainted because of the delay, he is
not unlawfully incarcerated and, therefore, not entitled to a writ of
habeas corpus.”). As a result, this factor sharply weighs against Fowler.
* * *
Balancing these factors, Fowler has failed to exhaust his state
court remedies. While a nearly-seven-year delay is egregious, context
provides clarity. The delay was caused by overcrowded courts and an
understaffed public defender office. Worse, Fowler cannot refuse to
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communicate with his public defender for nearly four years and then
cry foul about his appeal. That said, the Court recommends the District
Court find the factors weigh against providing Fowler habeas relief.
* * *
Ineffectiveness claim. The District Court should deny Fowler’s
ineffective assistance of counsel claim. To succeed on an ineffective
assistance of counsel claim, habeas petitioners must show: (1) counsel’s
performance was deficient, and (2) “there is a reasonable probability,
but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668,
687-88; see also Mathis, 937 F.2d at 795 (“. . . a claim of ineffective
assistance of counsel can be based on delay, but such a claim requires
that the two-pronged Strickland test be applied.”). Assuming that the
nearly-seven-year delay satisfies Strickland’s deficient performance
prong, the District Court should find Strickland’s prejudice prong
unsatisfied. See Parker v. Ercole, 666 F.3d 830, 834 (2d Cir.2012)
(noting that the court “need only consider the second prong” of
Strickland to resolve the petitioner's ineffective-assistance-of-counsel
claim). As noted above, Fowler’s appeal has been decided and the delay
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getting there had no impact on the assessment of his appellate claims.
In other words, there was no prejudice. The Court’s earlier no-prejudice
finding is instructive here because Barker’s prejudice analysis is the
same as Strickland’s prejudice analysis. See Mathis, 937, F.2d at 794
( “If the standard for prejudice was unclear from our previous cases, we
now clarify the standard and approve the district court's adoption of the
second prong of the Strickland test for use in determining whether
habeas relief is justified.”). That said, the District Court should deny
Fowler’s ineffective assistance of counsel claim.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the petition be DENIED and
DISMISSED, and it is further;
RECOMMENDED, that a certificate of appealability be
DENIED; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam), and it is further.
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Under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties
have fourteen days within which to file written objections to the
foregoing report. These objections shall be filed with the Clerk of the
Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72.
Dated: December 19, 2025
___________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Reyes v. Phillips, Not Reported in F.Supp.2d (2005)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2005 WL 475544
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Ramon REYES, a/k/a Raymond St. Hilair, Petitioner,
v.
William PHILLIPS, Superintendent, Green Haven Correctional Facility Respondent.
No. 02 Civ. 7319(LBS).
|
March 1, 2005.
MEMORANDUM AND ORDER
SAND, J.
*1 Petitioner Ramon Reyes (“Petitioner”) filed the instant habeas petition pursuant to 28 U.S.C. § 2254. In a previous
Memorandum and Order, familiarity with which is assumed, the Court dismissed certain unexhausted claims contained in the
petition and stayed the remainder of the petition so that Petitioner could return to state court and exhaust his unexhausted claims.
Reyes v. Phillips, 02 Civ. 7319, 2003 U.S. Dist. LEXIS 52 (January 6, 2003). Petitioner has now submitted a request to terminate
the stay and renew the petition. For the reasons stated below, the Court determines that Petitioner's request will be granted,
unless Petitioner timely declares that he wishes to withdraw it without prejudice to renewal at a later date.
I. Background
Petitioner is currently serving a sentence of imprisonment of 41 2/3 years to life based on convictions in New York State court
for second-degree murder, conspiracy, and attempted murder. The Appellate Division, First Department, unanimously affirmed
Petitioner's conviction on June 20, 2000, People v. Reyes, 710 N .Y.S.2d 887 (N.Y.App.Div.2000), and the New York Court of
Appeals denied leave to appeal on September 14, 2001, People v. Reyes, 759 N.E.2d 381 (N.Y.2001) (Graffeo, J.).
Petitioner, represented by counsel, filed this petition on September 10, 2002. In it, he made four distinct claims, as recounted
in the Court's January 6, 2003, Memorandum and Order:
(1) he was denied his Sixth Amendment right to effective assistance of counsel based on his counsel's failure
to join in the motion to vacate his plea and deficient performance at sentencing; (2) the trial court violated
his due process rights by summarily denying his motion to withdraw his guilty plea; (3) the trial court
violated his due process rights by failing to hold a hearing before accepting the prosecution's determination
that he violated the cooperation agreement; and (4) his sentence violated the Eighth Amendment.
2003 U.S. Dist. LEXIS 52 at *5-*6. Respondent, represented by the office of the New York County District Attorney, moved
to dismiss the petition on the ground that it contained at least one unexhausted claim.
The Court determined that Petitioner's Eighth Amendment claim and a portion of his effective-assistance-of-counsel claim were
indeed unexhausted. The Eighth Amendment claim could be presented to the state courts by a motion pursuant to N.Y. Criminal
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Reyes v. Phillips, Not Reported in F.Supp.2d (2005)
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Procedure Law § 440.20, and the right-to-counsel claim, to the extent that it relied on matters outside the trial record, could be
raised in a motion under N.Y. Criminal Procedure Law § 440.10.2003 U.S. Dist. LEXIS 52 at *8-*12. Following the procedure
laid out in Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir.2001), the Court dismissed those unexhausted claims, and stayed the
balance of the petition “to permit the Petitioner to seek appropriate collateral relief in state court on his unexhausted claims.”
2003 U.S. Dist LEXIS 52 at *13. As prescribed by Zarvela, the stay was issued on two conditions, namely that
*2 1) Within thirty (30) days of the date of this Order, Petitioner must file the appropriate motions in state
court seeking collateral relief on the unexhausted claims under §§ 440.10 and 440.20 or advise the Court
that he wishes to proceed only on the exhausted claims; and 2) within thirty (30) days after the state courts
have completed of their review of his (presently) unexhausted claims, Petitioner must file an affidavit or
declaration with this Court seeking to terminate the stay and renew his petition.
2003 U.S. Dist. LEXIS 52 at *13-*14. The Court noted that “if Petitioner fails to fulfill both of these conditions, the Court may
vacate the stay nunc pro tunc as of the date of this Order, and the petition may be dismissed.” 2003 U.S. Dist LEXIS 52 at *14.
The case was transferred to the suspense docket of this Court pending further action.
On September 8, 2004, the Court received a letter from Petitioner's attorney (the “September 8 letter”). Enclosed with the letter
was a copy of a decision, dated August 16, 2004, by which the letter asserted that “Judge Roger Hayes of New York State
Supreme Court denied petitioner's motion pursuant to CPL 440.” Petitioner's attorney stated in the letter that “Petitioner does
not intend to appeal this order and I request that the court proceed in deciding his Federal Habeas Petition.” The letter did not
purport to have been copied to Respondent or Respondent's counsel.
On September 22, the Court entered an Order instructing Petitioner “that he should properly serve and file his application to
terminate the stay and renew his petition, along with any materials submitted to the state courts that he desires this Court to
consider in connection therewith, if he wishes the petition to be renewed.” A copy of the September 8 letter, including the
enclosure to that letter, was attached to the September 22 Order and thereby made a part of the record.
Following the September 22 Order, no further filings or correspondence ensued for more than four months. On January 31,
2005, noting that there had been no response to the September 22 Order, the Court entered another Order advising Petitioner
that if the Court did not receive any communication from him or his attorney within thirty days, the petition would be dismissed.
On February 9, 2005, the Court received from Petitioner's counsel, by mail, an Affirmation and Declaration requesting to
terminate the stay and renew the petition. Attached was a copy of the Notice of Motion by which Petitioner had sought “relief
under CPL 440” (Decl. at 2). The Affirmation and Declaration had purportedly been served on Ryan W. Brackley, an Assistant
District Attorney who is not the attorney of record for Respondent in this action. The actual attorney of record for Respondent,
Assistant District Attorney Michael S. Morgan, represented that he had not been served with Petitioner's Affirmation and
Declaration. In addition to arranging for the Affirmation to be docketed, the Court therefore arranged for ADA Morgan to
receive a copy of it.
*3 On February 24, 2005, the Court received a letter from ADA Morgan indicating that Respondent opposed Petitioner's
request to reinstate his petition, on the ground that Petitioner had not complied with the conditions of his Zarvela stay. The letter
stated that Respondent was “not presently aware whether” notice of entry of the trial court's decision on Petitioner's state-court
motion for post-judgment relief was ever previously served, as would be necessary under the rule of Bennett v. Artuz, 199 F.3d
116, 120 (2d Cir.1999), aff'd, 531 U.S. 4 (2000), and People v. Washington, 657 N.E.2d 497 (N.Y.1995), to begin the running
of the thirty-day period during which Petitioner could seek to appeal that decision. 1 (Resp't Opp'n Letter at 2 n. 1.) “In an
abundance of caution,” Respondent indicated, such notice was served in conjunction with the letter. (Id.) Notwithstanding the
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Reyes v. Phillips, Not Reported in F.Supp.2d (2005)
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uncertainty regarding whether there had been any previous service of notice of entry of the trial court's decision on Petitioner's
state-court motion, Respondent requested that the Court vacate the Zarvela stay nunc pro tunc and dismiss the petition.
II. Analysis
As noted above, the Zarvela stay incorporated in the Court's January 6, 2003 Memorandum and Order was issued on two distinct
conditions. First, that Petitioner, within thirty days, “file the appropriate motions in state court seeking collateral relief on the
unexhausted claims under §§ 440.10 and 440.20 or advise the Court that he wishes to proceed only on the exhausted claims,”
and second, that Petitioner, “within thirty (30) days after the state courts have completed of their review of his [previously]
unexhausted claims ... file an affidavit or declaration with this Court seeking to terminate the stay and renew his petition.” 2003
U .S. Dist. LEXIS 52 at *13-*14. Because it is necessary that Petitioner have complied with both of those two conditions, it is
convenient to examine them separately. If either condition is shown to have been violated, “the Court may vacate the stay nunc
pro tunc as of [January 6], and the petition may be dismissed.” 2003 U.S. Dist LEXIS 52 at *14.
A. First Condition of the Stay
Pursuant to the first condition of the Zarvela stay, Petitioner originally had thirty days from the date of this Court's January 6,
2003 Memorandum and Order to either file the appropriate motions in state court seeking collateral relief on his unexhausted
claims, or advise the Court that he wished to proceed only on his exhausted claims. The date thirty days after January 6, 2003 was
February 5, 2003. On February 3, 2003, however, the Court received a letter from Petitioner's counsel requesting an extension
of time to file a § 440.10 motion in state court until February 12, 2003. The requested extension was granted by endorsement
of that letter. Petitioner therefore had until February 12, 2003, to file a motion in state court consistently with the first condition
of the Zarvela stay, as modified.
*4 The state-court motion papers attached to Petitioner's application to vacate the stay are dated February 10, 2003; the “filed”
stamp on the face of their first page appears to indicate that they may have actually been filed on February 11, or at least not
docketed until that date. A filing on either February 10 or 11 would have been timely under the extension granted Petitioner
by the Court's endorsement of February 3. While it would have been best for Petitioner's counsel to have averred the date on
which the § 440.10 motion was filed in his Affirmation and Declaration seeking to terminate the stay and renew the petition,
counsel did aver in his Affirmation and Declaration that he had attached “a copy of Mr. Reyes's petition to the Supreme Court
of the State of New York for relief under CPL 440” (Pet'r Decl. ¶ 4); that averment reasonably implies that at least one of the
two dates appearing on the face of the attached papers is an accurate indication of the date that the petition was filed. Thus, the
first condition of the Zarvela stay has been satisfied as to the timing of Petitioner's return to state court.
Whether the first condition of the Zarvela stay has been satisfied by the substance of Petitioner's return to state court is a closer
question. This Court's January 6, 2003 Memorandum and Order instructed Petitioner that while a motion under N.Y.Crim. Proc.
Law § 440.10 was the appropriate vehicle with which to exhaust his ineffective-assistance-of-counsel claim insofar as it relied
upon evidence outside the record, a collateral attack on his sentence by a motion under N.Y.Crim. Proc. Law § 440.20 was the
appropriate mechanism by which to exhaust his Eighth Amendment claim. 2003 U.S. Dist. LEXIS 52 at *8-*12. Petitioner was
specifically directed to “file the appropriate motions in state court seeking collateral relief on the unexhausted claims under §§
440.10 and 440.20” unless he chose instead to “advise the Court that he wishe[d] to proceed only on the exhausted claims.”
2003 U.S. Dist. LEXIS 52 at *13. It is therefore at least a bit troubling that Petitioner, according to the papers included with his
application to terminate the stay and renew the petition, chose instead to file only a motion under § 440.10.
In his § 440.10 motion papers, however, Petitioner did bring his Eighth Amendment claim to the attention of the state courts,
with an explicit mention of the federal constitutional source of the right and multiple citations to federal case law. The Second
Circuit has noted that “if the petitioner has cited the state courts to the specific provision of the Constitution relied on in his
habeas petition, he will have fairly presented his legal basis to the state courts,” Daye v. Attorney Gen. of New York, 696 F.2d 186,
193 (2d Cir.1982) (in banc), and this observation would seem to apply here. While there might be some room for an argument
that Petitioner's choice of a possibly incorrect procedural vehicle rendered his efforts at exhausting the Eighth Amendment
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claim insufficient, the issue has not been addressed by either Petitioner or Respondent, and the Court will not resolve it against
Petitioner without the benefit of briefing. Therefore, Respondent not having raised this aspect of Petitioner's potential lack of
compliance with the first condition of the Zarvela stay in opposition to Petitioner's application to terminate the stay and renew
the petition, the application will not be denied on that basis.
B. Second Condition of the Stay
*5 Respondent asserts that Petitioner has violated the second condition of the Zarvela stay by not acting with sufficient
diligence either in exhausting his claims or in returning to this Court. Although the history of this case is indeed at first glance
not indicative of great diligence, the uncertainty regarding whether notice of entry of the trial court's denial of Petitioner's §
440.10 motion was ever served until quite recently leads to a logical difficulty with Respondent's argument.
If notice of entry of the trial court's denial of Petitioner's § 440.10 motion had been served contemporaneously with the denial
itself, Petitioner's actions since then would have failed to comply with the second condition of the Zarvela stay. Assuming that
notice of entry of the denial was served by the end of August 2004, Petitioner's time to seek leave to appeal the denial to the
Appellate Division would have expired by the end of September 2004. See N.Y.Crim. Proc. Law §§ 450.15(1), 460.10(4)(a)
(McKinney 2004) (defendant has thirty days from service of a copy of the order to be appealed to seek leave to appeal denial
of a § 440.10 motion to the Appellate Division). On that assumption, Petitioner's initial letter to the court would have been
premature at best even if one ignores its flaws of form, and his subsequent proper filing would have been much too late.
When Petitioner first contacted the Court on September 8, 2004, regarding the denial of his § 440.10 motion, he had not properly
exhausted his previously unexhausted claims. Failure to seek leave to appeal the denial of a § 440.10 motion to the Appellate
Division constitutes failure to exhaust the claims raised in that motion. Pesina v. Johnson, 913 F.2d 53 (2d Cir.1990). While
Pesina' s holding that the unexhausted status of those claims continues even after the deadline to seek leave to appeal passes,
913 F.2d at 54, may or may not remain good law, compare, e.g., Bloomer v. Costello, 00 Civ. No. 5691, 2001 U.S. Dist. LEXIS
490 (January 24, 2001) (following Pesina ), with e.g., Castillo v. Hodges, 01 Civ. 2172, 2004 U.S. Dist. LEXIS 5077 (S.D.N.Y.
March 29, 2004), at *14-*15 (finding this aspect of Pesina inconsistent with Coleman v. Thompson, 501 U.S. 722 (1991)),
it is clear that the claims remained unexhausted on September 8. The opinion denying Petitioner's § 440.10 motion that was
enclosed with the September 8 letter is dated August 16, 2004, so that even if a notice of entry had been served immediately
after the denial, Petitioner would have had until September 16 or later to seek leave to appeal. Thus, even ignoring the fact that
Petitioner's September 8 letter was not properly served or filed, it would have been premature. Unless a counseled petitioner
who returns from a Zarvela stay with still-unexhausted claims because of an intent not to appeal those claims to the highest
available state court can appropriately be given a renewed Zarvela stay, which is unlikely, the September 8 letter-if treated as an
application to terminate the stay and renew the petition-would have led, assuming timely service of a notice of entry of the denial
of Petitioner's § 440.10 motion, to the petition being dismissed as mixed on the ground that it still contained unexhausted claims.
*6 By the time Petitioner served and filed a more proper application to terminate the stay and renew the petition, in February
2005, significantly more than thirty days would have passed from the time that “the state courts ha[d] completed their review
of [Petitioner's previously] unexhausted claims,” Reyes, 2003 U.S. Dist LEXIS 52 at *13, if notice of entry had been timely
served on Petitioner. Assuming service of notice of entry sometime in August, all state court review of Petitioner's claims would
have ceased at a corresponding time in September, upon expiration of the time to seek leave to appeal the trial court's denial
of Petitioner's motion to the Appellate Division. Petitioner's application to terminate the stay and renew the petition would
therefore have come more than four months after the conclusion of state court review. Thus, if notice of entry had been timely
served, Petitioner's belated application to terminate the Zarvela stay and renew the petition would not have been in compliance
with the second condition of the stay.
If notice of entry of the trial court's denial of Petitioner's § 440.10 motion was not served contemporaneously with the denial
itself, however, but rather was served for the first time in conjunction with Respondent's letter of February 23, then it would
appear that according to New York State and Second Circuit precedent, the state courts have technically still not completed
their review of Petitioner's previously unexhausted claims. People v. Washington, 657 N.E.2d 497, 498 (N.Y.1995), holds that
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“service by the prevailing party is necessary under [N.Y.Crim. Proc. Law] 460.10 in order to commence the time period for the
other party to take an appeal.” Therefore, it was held in Washington that a “notice of appeal was timely” where “no evidence
was presented as to the date on which ... the prevailing party in the trial court [ ] served the order on the [other party] and, in
fact, no evidence was presented that there was such service.” 657 N.E.2d at 498. Applying Washington, the court in Bennett v.
Artuz, 199 F.3d 116, 120 (2d Cir.1999), aff'd, 531 U.S. 4 (2000), held that a habeas petitioner's § 440.10 motion was “pending”
in the New York State courts for federal habeas purposes where the motion had been denied nearly four years previously in an
oral decision by the trial court, and the petitioner had received notice of this oral decision, but the petitioner allegedly had not
received a copy of any written order denying the motion. 2
Admittedly, even if notice of entry of the trial court's denial of Petitioner's § 440.10 motion had not been served until quite
recently, the instant case would be distinguishable from Bennett on the ground that Petitioner (by his counsel) has in some way
received a written copy of the order he should have sought leave to appeal: this is clear from the fact that such a copy was
attached to the September 8 letter. Washington and related New York State case law, however, do not appear to indicate that
receipt of a written copy of an order by some means other than service by the prevailing party is sufficient to begin the running
of the time to appeal. See Washington, 657 N.E.2d at 498 (noting that the Court of Appeals was resolving “a question left open
in People v. Singleton: whether service by the prevailing party is necessary under [N.Y.Crim. Proc. Law § ] 460.10 in order
to commence the time period for the other party to take an appeal.”) (emphasis added and internal citation omitted); People v.
Singleton, 527 N . E.2d 281, 281 (N.Y.1988) (explicitly refraining from considering the “contention[ ] that the People's time
to appeal to the Appellate Division was triggered by their receipt of a copy of the Supreme Court order from the court, and
that service of the order by the prevailing party was unnecessary for this purpose”). And to the extent that there is uncertainty
regarding the proper extent of the Bennett rule, the Court is reluctant to resolve such uncertainty against Petitioner without
the benefit of briefing. This is, despite the delays in its prosecution, Petitioner's first federal habeas petition, and “a procedural
dismissal ‘of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections
of the Great Writ entirely, risking injury to an important interest in human liberty.” ’ Ross v. Artuz, 150 F.3d 97, 100 (2d Cir.1998)
(quoting Lonchar v. Thomas, 517 U.S. 314, 324 (1996)).
*7 Therefore, the Court acknowledges that under Bennett, Petitioner's § 440 motion may still be pending, so far as a federal
habeas court is concerned. In refusing to hold that the failure of the petitioner in that case to seek relief by mandamus stopped the
tolling of the limitations period, Bennett cautioned that “it is not a petitioner's burden to cause state courts to act expeditiously
to avoid a time bar claim raised by the state itself.” 199 F.3d at 120. If Respondents indeed failed to serve notice of entry of the
trial court's denial of Petitioner's § 440.10 motion contemporaneously with that denial, it may be improper under this principle
of Bennett for any delay following that failure, and occurring while the motion was technically still pending, to be attributed
to Petitioner.
Further, Washington' s holding that absent service of the decision by the prevailing party, the time to appeal would not have
begun to run, suggests that, absent service of the decision by the prevailing party, it could not be the case that the state courts had
necessarily completed their review of Petitioner's previously unexhausted claims. Until his time to appeal had run, Petitioner
would still retain the right to cause that review to continue further, which seems inconsistent with the notion that the review was
“completed.” And if the state courts had not completed their review of Petitioner's previously unexhausted claims, the second
thirty-day period upon which this Court's Zarvela stay was conditioned would not have begun. Thus, if Petitioner was in fact
first served with a notice of entry in conjunction with Respondent's opposition to the application to renew the petition, it is
problematic to assert that the Zarvela stay should be vacated because Petitioner's actions were untimely with respect to that
second thirty-day period. If Petitioner has only recently been served with the order denying his § 440.10 motion, it may well be
that under the rule of Washington he could properly appeal from it in the near future, and that he could then return to this Court
within thirty days after his appeal was resolved and exhaustion was thereby completed.
It is understandable that Respondent would view Petitioner as “not [having] acted with the diligence contemplated by the Second
Circuit when it authorized the Zarvela stay procedure.” (Resp't Opp'n Letter at 2.) To decide that one “does not intend to appeal”
the order of a lower state court issued during the exhaustion process, as Petitioner's counsel notified the Court in his September
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8 letter that Petitioner had done, is not an option properly open to the beneficiary of a Zarvela stay. It also would generally be
inconsistent with the “expeditious” action envisioned by Zarvela, 254 F.3d at 381, for a petitioner to respond to a Court order
informing him that he has failed to properly serve and file an application to renew by remaining silent for four months. If the
thirty-day period mentioned in the second condition upon which the Zarvela stay was issued has actually not yet begun to run,
however, and if Petitioner in fact retains the right to seek leave to appeal and thereby complete exhaustion of his previously
unexhausted claims, it would seem inconsistent with Bennett to vacate the stay and dismiss the petition on the ground that
Petitioner has not acted diligently to exhaust his claims and return to the Court within thirty days thereafter. Although it appears
from the September 8 letter that Petitioner's counsel did not then intend for Petitioner to complete exhaustion of his claims
during his return to state court, it would be premature to conclude that Petitioner will not exhaust his claims if the option of
exhaustion is still open to him. And however much Petitioner's actions (through counsel) in the time since the lower court
denied his § 440.10 motion might appear to indicate lack of diligence, the Court is mindful of Bennett' s admonition that “it
is not a petitioner's burden to cause state courts to act expeditiously,” 199 F.3d at 120, upon an application for relief that is
properly pending before them.
*8 If notice of entry has only recently been served on Petitioner, his February 10 application to terminate the stay and renew
the petition may in fact technically have come too early-rather than too late-because it would have been filed before the state
courts had actually completed their review of his application for post-conviction relief. It would be inconsistent with the spirit
of Bennett, however, to penalize Petitioner with dismissal of his first federal habeas petition for confusion that, under the logic
of Bennett and Washington, is attributable to the state and to Respondent as much as it is attributable to Petitioner. If the petition
would not be subject to dismissal but for the fact that Petitioner responded to this Court's January 31 Order with an application
to terminate the stay and renew the petition, rather than with an explanation of why such an application would be filed later,
then it seems inappropriate to penalize Petitioner so harshly for responding to the Court's prompting in the manner that he did.
As previously noted, “a procedural dismissal ‘of a first federal habeas petition is a particularly serious matter.” ’ Ross v. Artuz,
150 F.3d 97, 100 (2d Cir.1998) (quoting Lonchar v. Thomas, 517 U.S. 314, 324 (1996)).
Therefore, Petitioner may, if he so desires, promptly withdraw his application to terminate the stay and renew the petition,
without prejudice to a renewal of the application when exhaustion is complete. If Petitioner does withdraw the application,
however, he must provide the Court and counsel for Respondent with regular status updates, in order to avoid any further
unnecessary delay in the final resolution of this petition.
III. Conclusion
For the reasons set out above, the Court finds that it would be inappropriate to dismiss the petition on the current record. If
Petitioner wishes to withdraw his application to terminate the stay and renew the petition, without prejudice to a later renewal
of said application, he may do so within thirty (30) days of the date of this Memorandum and Order, by declaration properly
filed and served on Respondent's attorney of record. Following any such withdrawal, Petitioner shall provide the Court and
Respondent with a status letter sixty (60) days after the date of said withdrawal and every sixty (60) days thereafter. The stay
may be vacated nunc pro tunc and the petition dismissed, prior to renewal of the application to terminate the stay, if Petitioner
fails to provide such status letters in a timely fashion, or if such status letters indicate that Petitioner has failed to comply with
the terms of the January 6, 2003 Order staying this petition, or if Respondent, by motion duly made and allowing Petitioner an
opportunity to respond, demonstrates that dismissal is appropriate (on the ground that, for example, notice of entry of the denial
of Petitioner's § 440.10 motion was served on Petitioner contemporaneously with said denial).
*9 If Petitioner does not withdraw his application to terminate the stay and renew the petition within thirty (30) days of the date
of this Memorandum and Order, the application shall be granted, and the action removed from the suspense docket and reinstated
to the active docket of this Court. In that case, Respondent shall have forty-five (45) days from the date of reinstatement to
answer the petition, as requested in Respondent's letter to the Court. Petitioner shall then have fourteen (14) days from the date
on which he is served with Respondent's answer to file a reply, and the petition will be considered fully submitted as of that date.
SO ORDERED.
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All Citations
Not Reported in F.Supp.2d, 2005 WL 475544
Footnotes
1 It is possible that only service of the order itself by the People as the prevailing party in the trial court proceeding, and not
service of a “notice of entry,” would actually have been necessary to begin the running of the thirty-day period. Compare,
e.g., People v. Washington, 618 N.Y.S.2d 32, 33 (N.Y.App.Div.1994) (rejecting the rule that “service of the order must
include notice of entry”), aff'd, 657 N.Y.2d 497, with, e.g., People v. Aubin, 666 N.Y.S.2d 778, 779 (N.Y.App.Div.1997)
(stating that “the 30-day period for taking an appeal does not begin to run until the prevailing party serves a copy of the
order and notice of entry thereof upon the other party”). In the remainder of this Memorandum and Order, Respondent's
description of the required action will generally be used.
2 Bennett relied in part on the rules of the Appellate Division, Second Department, in which the petitioner in that case
would have had to seek leave to appeal. The rules of the Appellate Division, First Department, to which Petitioner in this
case would have had to seek leave to appeal, are however essentially identical in relevant part to the rules of the Second
Department. Compare N.Y. Ct. Rules § 600.8(d)(1) & (d)(3) (2005) (stating that “[a]pplication for a certificate granting
leave to appeal to this court shall be made, in writing, within 30 days after service of the order upon the applicant” and
that “[t]he moving papers must include ... a copy of the order sought to be reviewed; and ... a copy of the memorandum
or opinion of the court below or a statement that there was none”) with N.Y. Ct. Rules § 670.12(b)(1) & (b)(2)(vi),
quoted in Bennett, 199 F.3d at 120 (stating that “An application pursuant to ... CPL 460.15 for leave to appeal to this
court from an order shall be made in writing within 30 days after service of the order upon the applicant” and that “[t]he
application ... shall include ... a copy of the order sought to be reviewed and a copy of the decision of the court of original
instance or a statement that there was no decision.”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Roberites v. Colly, 546 Fed.Appx. 17 (2013)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Moncayo v. Superintendent Green Haven Correctional Facility, E.D.N.Y., August 28, 2025
546 Fed.Appx. 17
This case was not selected for publication in the Federal Reporter.
Not for Publication in West's Federal Reporter. RULINGS BY SUMMARY ORDER DO NOT HAVE
PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1
AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals,
Second Circuit.
Jesse J. ROBERITES, Petitioner–Appellant,
v.
Superintendent COLLY, Respondent–Appellee.
No. 12–4228–pr.
|
Oct. 18, 2013.
Synopsis
Background: State prisoner petitioned for federal habeas relief, relating to his convictions for arson and insurance fraud, and
alleging ineffective assistance of appellate counsel. The United States District Court for the Western District of New York, John
T. Curtin, J., sua sponte dismissed the petition without prejudice, based on failure to exhaust state remedies. Prisoner appealed.
Holdings: The Court of Appeals held that:
[1] despite delay in state appellate proceedings, prisoner would not be excused from exhausting state remedies, but
[2] prisoner was entitled to conditional writ of habeas corpus, ordering release unless appeal was decided within nine months.
Affirmed in part and reversed and remanded in part.
Procedural Posture(s): On Appeal; Motion to Dismiss.
West Headnotes (6)
[1] Habeas Corpus Delay in remedy; frustration by state
Length of delay in state proceedings, i.e., in 32-month period between state prisoner's timely filing of direct appeal
from convictions for arson and insurance fraud and his filing of federal habeas petition, the merits of the appeal had
not been under consideration, was a factor weighing in favor of excusing prisoner from exhausting state remedies
before seeking federal habeas relief. 28 U.S.C.A. § 2254(b)(1)(A), (b)(1)(B)(ii).
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Roberites v. Colly, 546 Fed.Appx. 17 (2013)
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4 Cases that cite this headnote
[2] Habeas Corpus Delay in remedy; frustration by state
The reason for the delay in the direct appeal of state prisoner's convictions for arson and insurance fraud, the party
responsible for the delay, and prisoner's assertion of his right to a decision, were factors weighing in favor of excusing
prisoner from exhausting state remedies before seeking federal habeas relief; initial-appointed appellate counsel failed
to perfect the state appeal or otherwise take any action on prisoner's behalf before being relieved, second appointed
counsel, despite being ordered to perfect the appeal, failed to do so, state appellate court denied prisoner's motion for
appointment of new counsel, second appointed counsel was relieved two years after her appointment, and appeal was
not perfected until third counsel was appointed. 28 U.S.C.A. § 2254(b)(1)(A), (b)(1)(B)(ii).
8 Cases that cite this headnote
[3] Habeas Corpus Delay in remedy; frustration by state
In light of principles of comity with state courts, as well as fact that state prisoner's direct appeal from his convictions
for arson and insurance fraud were now proceeding, prisoner would not be excused from exhausting state remedies
before seeking federal habeas relief, despite inaction in the appeal in 32-month period between prisoner's timely filing
of direct appeal and his filing of federal habeas petition. 28 U.S.C.A. § 2254(b)(1)(A), (b)(1)(B)(ii).
7 Cases that cite this headnote
[4] Constitutional Law Timeliness
Criminal Law Proceedings subject to time requirements
Criminal Law Length of Delay
Length of delay in state proceedings, i.e., in 32-month period between state prisoner's timely filing of direct appeal
from convictions for arson and insurance fraud and his filing of federal habeas petition, the merits of the appeal had
not been under consideration, was a factor weighing in favor of finding a violation of due process right to speedy
appeal. U.S.C.A. Const.Amend. 14.
4 Cases that cite this headnote
[5] Constitutional Law Timeliness
Criminal Law Proceedings subject to time requirements
Criminal Law Cause for delay, “good cause”, and excuse or justification in general
The reason for the delay in the direct appeal of state prisoner's convictions for arson and insurance fraud, the party
responsible for the delay, and prisoner's assertion of his right to a decision, were factors weighing in favor of finding a
violation of due process right to speedy appeal; initial-appointed appellate counsel failed to perfect the state appeal or
otherwise take any action on prisoner's behalf before being relieved, second appointed counsel, despite being ordered
to perfect the appeal, failed to do so, state appellate court denied prisoner's motion for appointment of new counsel,
second appointed counsel was relieved two years after her appointment, and appeal was not perfected until third
counsel was appointed. U.S.C.A. Const.Amend. 14.
9 Cases that cite this headnote
[6] Habeas Corpus Conditional Relief; New Trial or Other Proceeding
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State prisoner was entitled to conditional writ of habeas corpus from federal court, ordering release of prisoner unless
his direct appeal from his convictions for arson and insurance fraud was decided within nine months, as remedy for
alleged violation of prisoner's due process right to speedy appeal, where 32 months had elapsed between prisoner's
timely filing of direct appeal and his filing of federal habeas petition, inaction in the appeal was attributable in part to
delay by appointed appellate counsel in perfecting an appeal, and state appellate court had denied prisoner's request
to replace one of his appointed attorneys, though prisoner had not demonstrated substantial prejudice to the pursuit
of now-scheduled appeal. U.S.C.A. Const.Amend. 14; 28 U.S.C.A. § 2254.
14 Cases that cite this headnote
*18 Appeal from an order of the United States District Court for the Western District of New York (John T. Curtin, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on
September 21, 2012, is AFFIRMED in part and REVERSED and REMANDED in part.
Attorneys and Law Firms
Randolph Z. Volkell, Esq., Merrick, NY, for Petitioner–Appellant.
Alyson J. Gill, (Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General for Criminal
Matters, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, NY, for Respondent–
Appellee.
*19 PRESENT: ROBERT D. SACK, B.D. PARKER, REENA RAGGI, Circuit Judges.
SUMMARY ORDER
New York State prisoner Jesse Roberites, now represented by counsel, appeals from the sua sponte dismissal without prejudice
of his pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his state convictions for arson and insurance
fraud and complaining of ineffective assistance of counsel on appeal. The rules governing § 2254 permit sua sponte dismissal
where “it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.” Rules Governing
Section 2254 Cases, Rule 4; McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). We review such
a dismissal de novo. See Jones v. West, 555 F.3d 90, 95 (2d Cir.2009); cf. Shakur v. Selsky, 391 F.3d 106, 112 (2d Cir.2004)
(holding de novo review applies to sua sponte dismissal of prisoner civil rights action pursuant to 28 U.S.C. § 1915). To facilitate
that review, a panel of this court granted Roberites a certificate of appealability on two issues: (1) whether the on-going state
delay in hearing his appeal excused the failure to exhaust and (2) whether such delay violated due process. See Roberites v.
Colly, No. 12–4228–pr, Dkt. Entry 23 (2d Cir. Jan. 22, 2013). We assume the parties' familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal, which we reference only as necessary to explain our decision to affirm
in part and reverse and remand in part.
1. Excusing Exhaustion Based on Appellate Delay
The district court's dismissal was based on Roberites's failure to exhaust available state remedies, specifically direct appeal.
See 28 U.S.C. § 2254(b)(1)(A); Dean v. Smith, 753 F.2d 239, 241 (2d Cir.1985). We have recognized that a failure to exhaust
may be excused, however, where there has been “substantial delay in the state criminal appeal process.” Cody v. Henderson,
936 F.2d 715, 718 (2d Cir.1991); see 28 U.S.C. § 2254(b)(1)(B)(ii) (excusing failure to exhaust where circumstances render
state corrective process ineffective to protect rights of petitioner); 17B Wright & Miller, Fed. Prac. & Proc. Juris.3d § 4264.2
(2009) (“[I]f there is undue delay between the prisoner's application to the state courts and final disposition of it there, the
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federal courts consider that the state corrective process is ineffective to protect the rights of the prisoner and will pass on a
habeas corpus petition.”).
In assessing whether delay excuses exhaustion, a court properly considers the criteria articulated in Barker v. Wingo, 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), regarding the right to a speedy trial, including (1) the length of the delay, (2) the
reason for the delay and the party responsible, (3) whether petitioner asserted his right to a decision, and (4) ensuing prejudice.
See Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990). A court may also consider federal-state comity in considering
whether undue delay excuses a failure to exhaust. See Brooks v. Jones, 875 F.2d 30, 32 (2d Cir.1989).
[1] Here, approximately 32 months passed from Roberites's timely June 10, 2009 filing of his appeal and his February 27,
2012 filing of a § 2254 petition. During that time, the merits of the appeal were not under consideration; to the contrary, the
appeal had not yet been perfected as required by N.Y. Comp.Codes R. & Regs., tit. 22, § 1000.3(b). At the time the district
court dismissed the petition, over three years had passed. We have observed *20 that “[t]he doctrine of exhaustion of state
remedies does not require a petitioner to wait ... three or four years before enlisting federal aid to expedite an appeal.” Simmons
v. Reynolds, 898 F.2d at 870. Thus, the length of the delay here tilts in favor of excusing Roberites's failure to exhaust.
[2] The second and third factors also tilt in his favor. In the 32 months before Roberites filed his § 2254 petition (1) initial-
appointed appellate counsel failed to perfect the state appeal or otherwise take any action on Roberites's behalf before being
relieved, and (2) a second-appointed attorney ordered to perfect the appeal by January 3, 2012, failed to do so. On January 8,
2012, Roberites moved for appointment of new counsel, which the Appellate Division denied. Nothing in the record indicates
whether the state court thereafter took any action to secure counsel's compliance with the order to perfect. It shows only that on
June 6, 2013, nearly four years after Roberites's appeal was filed and two years after her appointment, second appellate counsel
moved successfully to be relieved. On June 11, 2013, the Appellate Division assigned Roberites a third appellate counsel, and
ordered him to perfect the state appeal by August 20, 2013. Counsel perfected the appeal as directed, a date now has been set
for the state's reply, and the appeal is calendared for the February 2014 Term. These circumstances indicate that, despite the
noted lengthy delay, Roberties's appeal is finally on track for a merits assessment by the New York courts.
[3] Mindful that “[t]he exhaustion requirement ... is grounded in principles of comity and reflects a desire to protect the state
courts' role in the enforcement of federal law,” Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989)
(internal quotation marks and citation omitted), and in light of the fact that this appeal is now moving forward, we will not
ourselves address the merits of Roberites's challenge to his conviction in advance of state courts. See Brooks v. Jones, 875
F.2d at 31–32. Accordingly, we affirm the district court's dismissal of Roberites's § 2254 petition challenging his judgment of
conviction for failure to exhaust.
2. Due Process Claim for Undue Appellate Delay
In addition to seeking § 2254 relief from conviction, Roberites asserts a violation of his due process right to a speedy appeal.
See Elcock v. Henderson, 947 F.2d 1004, 1007 (2d Cir.1991) (“[O]nce a state has provided defendants in criminal cases with
the right to appeal, due process requires that an appeal be heard promptly.” (internal quotations marks omitted)); see also Cody
v. Henderson, 936 F.2d at 719. We have previously rejected arguments that such due process claims must first be pursued in
state court, deeming writs of error coram nobis inadequate to afford relief. See, e.g., Brooks v. Jones, 875 F.2d at 31; Mathis v.
Hood, 851 F.2d 612, 614–15 (2d Cir.1988). Respondent suggests that where, as here, petitioner attributes much of the delay to
ineffective counsel, People v. Syville, 15 N.Y.3d 391, 912 N.Y.S.2d 477, 938 N.E.2d 910 (2010), holds that coram nobis can
afford effective relief. Because Roberites's due process claim is not limited to the ineffectiveness of counsel, but also faults
the state court's own inaction in advancing his appeal, we need not here decide whether Syville warrants reconsideration of our
precedent not requiring exhaustion of such due process claims. See Mathis v. Hood, 851 F.2d at 615. Further, we conclude that
Roberites is, at this point, entitled only to conditional relief.
[4] [5] [6] Once again, the Barker v. Wingo factors inform our assessment of the plausibility *21 of Roberites's due process
claim. See Elcock v. Henderson, 947 F.2d at 1007. Where, as here, the first three Barker factors weigh in favor of finding a due
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process violation, but a petitioner has failed to demonstrate any substantial prejudice to his pursuit of a now scheduled appeal,
we have held that a conditional writ is the appropriate remedy because “it limits the time state courts may delay; it grants a
prisoner the required relief, his appeal; and it provides federal courts with an effective means to protect prisoners' rights to
appeal.” Simmons v. Reynolds, 898 F.2d at 870; see also Brooks v. Jones, 875 F.2d at 32. Mindful both that Roberites's appeal is
now scheduled to be heard in the February 2014 Term, and that New York's Appellate Divisions carry heavy dockets, we direct
the district court on remand to issue a conditional writ ordering Roberites's release unless his appeal is decided by June 30, 2014.
We have considered the parties' remaining arguments on appeal and find them to be without merit. Accordingly, the order of
the district court is AFFIRMED in part and REVERSED and REMANDED in part.
The Clerk of Court shall issue the mandate ten (10) days from the date of this order, and shall forthwith transmit a copy of this
order to the New York State Appellate Division, Fourth Department.
All Citations
546 Fed.Appx. 17
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2014 WL 2895439
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Nicholas TURE, Petitioner,
v.
Steven RACETTE, Superintendent, Clinton Correctional Facility, 1 Respondent.
No. 9:12–cv–01864–JKS.
|
Signed June 25, 2014.
|
Filed June 26, 2014.
Attorneys and Law Firms
Nicholas Ture, Dannemora, NY, pro se.
Paul B. Lyons, New York State Attorney General, New York, NY, for Respondent.
MEMORANDUM DECISION
JAMES K. SINGLETON, JR., Senior District Judge.
*1 Nicholas Ture, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court
pursuant to 28 U.S.C. § 2254. Ture is currently in the custody of the New York State Department of Corrections and Community
Supervision and is incarcerated at Clinton Correctional Facility. Respondent has answered, and Ture has not replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On December 1, 2009, Ture was charged with attempted murder in the second degree, assault in the first degree, assault in the
second degree, and criminal possession of a weapon in the fourth degree after he repeatedly stabbed his mother one day after
being released from county jail. Ture was arraigned and entered a not guilty plea in Saratoga County Court on December 4,
2009. The People requested a competency evaluation to determine whether Ture was fit to stand trial. The court ordered the
examination and stayed the proceedings pending the outcome.
At a conference held on March 1, 2010, the court noted that a Criminal Procedure Law (“CPL”) § 730.30 competency
examination had been performed and that two psychiatrists reported that Ture did not by reason of mental disease or defect lack
the capacity to understand the proceedings against him or to assist in his own defense. The court then indicated that it would
proceed to a hearing on the matter. The prosecutor informed the court that the People were ready to proceed with a hearing
but that she understood that the defense had decided to consent to the issue of capacity and agree with the doctors' evaluations.
Counsel for Ture confirmed that the defense would not be contesting Ture's capacity to proceed in the matter. Ture then asked
to address the court and stated, “Well, I just wanted to say that, you know, I do love my mother, and I'm sorry this whole thing
happened, and I just—you know, I'll do my time.” The court then admonished Ture that “the less said, the better.”
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At the next conference, Ture requested new counsel, and the court denied the request. The court also explained to Ture that the
prosecutor had indicated that the People would be willing to accept a plea. The prosecutor stated that the People were willing
to accept a guilty plea to attempted murder with a sentence of 20 years. The court also stated that “it's possible in this case that
you might be successful in entering a plea of not guilty by reason of mental disease or defect.” The court explained the process
for doing so, and the prosecutor indicated that the People would not object to such a plea. In response to his question, the court
also informed Ture that he had time to consider his options.
On April 21, 2010, the prosecutor stated that the People were offering Ture the opportunity to plead guilty to all counts in the
indictment in exchange for a sentence of 15 years' imprisonment. The prosecutor indicated that Ture would also be required to
waive his right to appeal. The court additionally informed Ture that a period of post-release supervision ranging from 21/2 years
to 5 years would also be imposed. When asked if he understood the terms of the offer, Ture stated that he did not understand
“supervision.” The court instructed defense counsel to explain post-release supervision to Ture off the record. Afterwards, the
court asked Ture if he understood the entire offer, including post-release supervision; Ture answered in the affirmative. The
court then asked Ture if he was in agreement with the terms and Ture responded, “Yes, sir, your Honor.”
*2 The court then explained the rights that Ture was giving up by pleading guilty, including the privilege against self-
incrimination and his rights to a speedy and public jury trial and to cross-examine and offer witnesses. The court also explained
that, as part of the plea agreement, Ture would be required to waive his right to appeal. The court asked Ture whether he
understood what that meant, and Ture responded, “Does that mean I can't appeal? Cannot appeal or can appeal?” The court
permitted Ture to confer off the record with his attorney. Thereafter, Ture stated that he understood the waiver of the right to
appeal. The court additionally warned Ture that the instant offense was a felony and that a future felony conviction could lead
to enhanced sentencing because of the instant offense. Ture indicated that he understood. Ture further stated that he understood
the court's statement that he could not be forced into pleading guilty but would have to do it freely and voluntarily.
The court then asked Ture, “This morning are you on any kind of drugs or medication or are you suffering from any kind of
illness that would make it difficult for you to understand what is being said here?” Ture replied, “No, I'm not.” Ture confirmed
his intention to enter an Alford plea. 2 The prosecution then explained the evidence against Ture, including two knives, three
eyewitnesses, the statement of the victim, and photographs of a blood smear on Ture and his clothes. Ture then pled guilty to
each of the charges.
On June 17, 2010, Ture appeared with counsel for sentencing. The People requested that the negotiated 15–year sentence be
imposed and that an order of protection be issued for the victim. Ture addressed the court and asked for leniency, stating:
I realize what I have done is terrible. Believe me when I say no one is more sorry than I am..... I want to make it very clear
that I honestly did not intentionally mean for this to happen, and I would never hurt her in the right mind. I honestly don't
remember attacking her at all. I don't—I blacked out, and I was—I was blacked out for most of the end of last Summer.
On a positive note, my mother has been coming to see me regularly. We've been having good talks, and we've moved on
from what has happened, and there are no hard feelings between us. We both agree this was a blackout, and we both agree
that it was caused by me not being on my medications for so long. We also feel it could have been prevented. Like she said,
we're angry with the Saratoga City Court system. They had sent out a warrant ... to take me to the hospital to be treated.
Instead of doing so, they incarcerated me early on a misdemeanor. Judge Wait knew of my condition and knew I needed to
be hospitalized. He instead sent me to County Jail for an evaluation, and the doctors didn't help, and I did my 20 days and
just got worse. And I was never put on my medicine, and I was then released to my parents in worse condition [sic] I've been
in. I committed my act the following morning of being released. And we feel none of this would have happened if I had only
been sent to the hospital like the warrant had said.
*3 .... I've spent the last ten months in the medical unit of the County Jail, two of those months were at Marcy Psychiatric.
I've been taking my meds everyday, I've caused no trouble, and I've been doing very well.
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The court sentenced Ture to concurrent determinate prison terms of 15 years for the attempted murder and first-degree assault
convictions plus an additional 5–year term of postrelease supervision. The court also sentenced Ture to a concurrent determinate
term of 5 years' imprisonment plus 3 years of post-release supervision for the second-degree assault conviction and a concurrent
1–year term of imprisonment for the criminal possession of a weapon conviction.
By papers dated January 24, 2011, Ture moved pro se to vacate the judgment of conviction pursuant to CPL § 440.10 on the
ground that there was newly discovered evidence of his innocence, namely, his untreated mental illness. Ture also claimed that
his attorney failed to inform him of his right to testify before the grand jury and that his sentence was harsh and excessive. The
County Court denied the motion, finding that the newly-discovered evidence claim was without merit and that his excessive
sentence claim was a matter of record and thus not properly subject to collateral review. Ture did not appeal the court's § 440.10
denial.
Through counsel, Ture appealed his conviction, arguing that the trial court should not have accepted Ture's guilty plea in light
of the evidence that Ture was not guilty by reason of mental disease or defect. The Appellate Division denied the appeal in a
reasoned opinion concluding that “the proof regarding his mental capacity does not establish that he was incompetent.” People
v. Ture, 94 A.D.3d 1163, 941 N.Y.S.2d 530, 530–31 (N.Y.App.Div.2012). Ture sought leave to appeal the denial to the New
York Court of Appeals, which was summarily denied on June 7, 2012. People v. Ture, 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973
N.E.2d 218 (N.Y.2012).
Ture timely filed a Petition for a Writ of Habeas Corpus to this Court on November 30, 2012.
II. GROUNDS RAISED
In his pro se Petition before this Court, Ture raises four grounds for relief. First, Ture argues that he is “[n]ot guilty due to [the]
negligence of county jail and Saratoga Court” because he was denied hospitalization and unmedicated when he was released
from his prior incarceration. He next argues that his pre-trial counsel was prejudiced against him and told him that he would
not assert arguments or raise evidence that challenged his culpability and that his appellate counsel was ineffective for failing
to raise the issue of the negligence of the County Jail on appeal and by failing to request oral argument. He additionally argues
that he is not guilty of the offense because of mental infirmity. Finally, Ture argues that his sentence was harsh and excessive.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), this Court cannot grant relief
unless the decision of the state court was “contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding,” § 2254(d)(2). A state-court decision is contrary to
federal law if the state court applies a rule that contradicts controlling Supreme Court authority or “if the state court confronts
a set of facts that are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives at a different
result. Williams v. Taylor, 529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
*4 To the extent that the Petition raises issues of the proper application of state law, they are beyond the purview of this Court
in a federal habeas proceeding. See Swarthout v. Cooke, ––– U.S. ––––, ––––, 131 S.Ct. 859, 863, 178 L.Ed.2d 732 (2011) (per
curiam) (holding that it is of no federal concern whether state law was correctly applied). It is a fundamental precept of dual
federalism that the states possess primary authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502
U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (a federal habeas court cannot reexamine a state court's interpretation
and application of state law); Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (presuming that
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the state court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct.
2428, 153 L.Ed.2d 556 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned decision” by the state court. Ylst v.
Nunnemaker, 501 U.S. 797, 804, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Jones v. Stinson, 229 F.3d 112, 118 (2d Cir.2000).
Under the AEDPA, the state court's findings of fact are presumed to be correct unless the petitioner rebuts this presumption by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller–El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d
931 (2003).
Ture has not replied to Respondent's answer. The relevant statute provides that “[t]he allegations of a return to the writ of habeas
corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except
to the extent that the judge finds from the evidence that they are not true.” 28 U.S.C. § 2248; see also Carlson v. Landon, 342
U.S. 524, 530, 72 S.Ct. 525, 96 L.Ed. 547 (1952). Where, as here, there is no traverse filed and no evidence offered to contradict
the allegations of the return, the court must accept those allegations as true. United States ex rel. Catalano v. Shaughnessy, 197
F.2d 65, 66–67 (2d Cir.1952) (per curiam).
IV. DISCUSSION
A. Exhaustion
Respondent correctly contends that Ture has failed to exhaust all but his third claim. This Court may not consider claims that
have not been fairly presented to the state courts. 28 U.S.C. § 2254(b) (1); see Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.
1347, 158 L.Ed.2d 64 (2004) (citing cases). To be deemed exhausted, a claim must have been presented to the highest state court
that may consider the issue presented. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).
In New York, to invoke one complete round of the State's established appellate process, a criminal defendant must first appeal
his or her conviction to the Appellate Division and then seek further review by applying to the Court of Appeals for leave to
appeal. Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir.2005).
On direct appeal, Ture raised only his claim that the County Court should not have accepted his guilty plea in light of the evidence
that Ture was not guilty by reason of mental disease or defect which, construed liberally as discussed below, encompasses the
third claim in his Petition. Ture also sought leave to appeal the denial in the New York Court of Appeals, thus completing the
exhaustion process. Although Ture raised the remaining claims in his pro se CPL § 440.10 motion, Ture did not seek leave to
appeal the denial of that motion. Thus, these claims are unexhausted.
*5 With the exception of the ineffective assistance of counsel claim (claim 2), his unexhausted claims are procedurally barred.
Because Ture's claims are based on the record, they could have been raised in his direct appeal but were not; consequently, Ture
cannot bring a motion to vacate as to these claims. N.Y. CRIM. PROC. LAW § 440.10(2)(c) (“[T]he court must deny a motion
to vacate a judgment when[,][a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have
permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate
review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal....”). Moreover, Ture
cannot now raise these claims on direct appeal because he has already filed the direct appeal and leave application to which he
is entitled. See Grey v. Hoke, 933 F.2d 117, 120–21 (2d Cir.1991).
“[W]hen a ‘petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his
claims in order to meet the exhaustion requirement would now find the claims procedurally barred,’ the federal habeas court
should consider the claim to be procedurally defaulted.” Clark v. Perez, 510 F.3d 382, 390 (2d Cir.2008) (citation omitted);
see also Grey, 933 F.2d at 121. A habeas petitioner may only avoid dismissal of his procedurally defaulted claims if he can
demonstrate “cause for the default and prejudice from the asserted error,” House v. Bell, 547 U.S. 518, 536, 126 S.Ct. 2064,
165 L.Ed.2d 1 (2006), or a “fundamental miscarriage of justice,” Murray v. Carrier, 477 U.S. 478, 495–96, 106 S.Ct. 2639,
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91 L.Ed.2d 397 (1986), superceded by statute on other grounds, United States v. Gonzalez–Largo, No. 07–cv–0014, 2012 WL
3245522, at *2 (D.Nev. Aug.7, 2012). A miscarriage of justice is satisfied by a showing of actual innocence. See Schlup v. Delo,
513 U.S. 298, 326–27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Ture does not claim that cause exists for his procedural default,
nor does he assert actual innocence. Because Ture may not now return to state court to exhaust these claims, the claims may be
deemed exhausted but procedurally defaulted from habeas review. See Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir.2001).
Ture's unexhausted ineffective assistance of counsel claim is not barred, however, because there is no time limit or number bar
in filing writ of error coram nobis applications. See Smith v. Duncan, 411 F.3d 340, 347 n. 6 (2d Cir.2005); Turner v. Sabourin,
217 F.R.D. 136, 147 (E.D.N.Y.2003). Ture may therefore still exhaust this claim in state court. This Court could stay the Petition
and allow Ture to return to state court to satisfy the exhaustion requirement as to the remaining claim. See Zarvela v. Artuz,
254 F.3d 374, 380–83 (2d Cir.2001). However, Ture has not requested that this Court stay and hold his Petition in abeyance.
Moreover, the Supreme Court has held that it is an abuse of discretion to stay a mixed petition pending exhaustion where: 1)
the petitioner has not shown good cause for failing to exhaust all available state court remedies; and 2) the unexhausted claim is
“plainly meritless.” Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). In his Petition, Ture provides
no reason why he did not seek relief on this claim through a coram nobis application to the state court.
*6 Despite Ture's failure to exhaust the majority of his claims, this Court nonetheless may deny his claims on the merits
and with prejudice. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). This is particularly
true where the grounds raised are meritless. See Rhines, 544 U.S. at 277. Accordingly, this Court declines to dismiss these
claims solely on exhaustion grounds and will instead reach the merits of the claims as discussed below.
B. Merits
Claims 1 and 3: Not Guilty
In claim 1, Ture argues that he is “[n]ot guilty due to [the] negligence of county jail and Saratoga Court.” He alleges that the
County Court and Jail's failure to hospitalize and medicate him caused him to attack his mother just 24 hours after he was released
from jail. Ture similarly asserts in claim 3 that he is “[n]ot guilty due to mental infirmity.” In support of this claim, he states
that he “was off medication for a period of twenty days before and during time of attack[,] have diagno[ses] of scitsophrenia
[sic] and bipolar, have been diagnosed since the age of sixteen and have been off and on medication for the past seven years.”
Because Ture alleges that the County Court and Jail's negligence in failing to ensure that he was medicated led to his mental
infirmity, the substance of these claims appear to be identical and both attack his guilty plea.
Construing Ture's pro se Petition liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)
(per curiam), this Court may discern that Ture's not guilty claims raise three potential arguments: 1) his plea was involuntary,
unknowing, or unintelligent; 2) the trial court should have rejected his plea and instead adjudicated him not guilty due to mental
disease or defect; and 3) there was an insufficient basis for the plea.
On direct appeal, the Appellate Division rejected Ture's challenge to his plea, concluding:
[B]y not moving to withdraw his plea or vacate the judgment of conviction, [Ture] did not preserve his
argument[ ] ... that his Alford plea was not supported by sufficient record proof. In any event, the record
reveals that County Court conducted a thorough plea allocution, [Ture] indicated that he understood and
agreed to the sentence, the evidence that he committed the acts was compelling, and the proof regarding
his mental capacity does not establish that he was incompetent.
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Ture, 941 N.Y.S.2d at 530 (internal citations and quotation marks omitted).
As Respondent notes, Ture's failure to move to withdraw his plea or vacate the judgment of conviction dooms any challenge to
his plea on federal habeas review. In order to preserve a claim that a guilty plea was involuntarily made or erroneously accepted,
New York courts have held that “a defendant must either move to withdraw the plea under C.P.L. § 220.60(3) or move to vacate
the judgment of conviction under C.P.L. § 440.10.” 3 Snitzel v. Murry, 371 F.Supp.2d 295, 300–01 (W.D.N.Y.2004) (citing
New York cases); see, e.g., People v. Clarke, 93 N.Y.2d 904, 690 N.Y.S.2d 501, 712 N.E.2d 668, 669 (N.Y.1999); People v.
Lopez, 71 N.Y.2d 662, 529 N.Y.S.2d 465, 525 N.E.2d 5, 6 (N.Y.1988). It is well settled in this Circuit that this preservation rule
provides an adequate and independent state ground on which to deny habeas relief. See, e.g ., Hunter v. McLaughlin, No. 04
Civ. 4058, 2008 WL 482848, at *1–4 (S.D.N.Y. Feb. 21, 2008); Shanks v. Greiner, No. 01 Civ. 1362, 2001 WL 1568815, at *3–
4 (S.D.N.Y. Dec. 10, 2001). Because the Appellate Division rejected Ture's challenge to his plea on independent and adequate
state procedural grounds, federal review is barred unless Ture establishes cause for the default and resulting prejudice or that
a fundamental miscarriage of justice will result from the Court's failure to review the claim. See Coleman v. Thompson, 501
U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).
*7 Ture fails to establish either of these mitigating factors in this case. Even if he could demonstrate cause, which does not
appear from the record, he cannot show prejudice insofar as the arguments underlying the claim are meritless. See Pettigrew v.
Bezio, No 10–CV–1053, 2012 WL 1714934, at *4 (W.D.N.Y. May 15, 2012) (concluding that a petitioner cannot show actual
prejudice where the underlying defaulted claim is meritless); see also Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir.1985) (noting
that federal habeas relief is unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated).
As the appellate court found, the record belies any claim that his guilty plea was involuntary, unknowing, or unintelligent. Ture,
941 N.Y.S.2d at 530. The record indicates that, prior to accepting his plea, the trial court informed Ture that “it's possible in this
case that you might be successful in entering a plea of not guilty by reason of mental disease or defect.” The court explained
the process for doing so, and the prosecutor indicated that the People would not object to such a plea. The court also informed
Ture that he had time to consider his options. It therefore appears that Ture weighed his options and the risks attendant with
each and then entered his Alford plea. Ture further indicated that he was pleading freely and voluntarily and that he was not
suffering from any illness that would make it difficult for him to understand the proceedings. Solemn declarations in open court
carry a strong presumption of verity, and “[t]he subsequent presentation of conclusory allegations unsupported by specifics is
subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.” Blackledge v. Allison,
431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977).
Moreover, any claim that the trial court should not have accepted his Alford plea and instead adjudicated him not guilty by reason
of mental disease or defect is barred by his guilty plea. 4 See Bakic v. United States, 971 F.Supp. 697, 700 (N.D.N.Y.1997)
(voluntary guilty plea precludes subsequent collateral attack based on insanity defense); see also United States v. Bendicks, 449
F.2d 313, 315 (5th Cir.1971) (insanity defense is non jurisdictional). A defendant who pleads guilty to a charged offense “may
not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the
guilty plea.” Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); see also Hill v. Lockhart, 474 U.S.
52, 56–57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “It is well settled that a defendant's plea of guilty admits all of the elements
of a formal criminal charge, and, in the absence of a court-approved reservation of issues for appeal, waives all challenges to
the prosecution except those going to the court's jurisdiction.” Hayle v. United States, 815 F.2d 879, 881 (2d Cir.1987) (internal
citation omitted). The later assertion of a defense to the criminal charge which does not challenge the court's jurisdiction is
therefore precluded by a guilty plea. See United States v. Hsu, 669 F.3d 112, 117–18 (2d Cir.2012) (noting that a defendant
ordinarily waives a statute of limitations defense by pleading guilty to an offense).
*8 Furthermore, given the strong evidence against him-including two knives, statements from the victim and eyewitnesses,
and the victim's blood on his clothing-there was a sufficient evidentiary basis for his Alford plea. Alford, 400 U.S. at 37 (there
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must be a “strong factual basis for the plea” to withstand scrutiny under Alford ). Ture thus cannot prevail on any challenge to
his Alford plea based on his claim that he cannot be held culpable for the offense.
Claim 2: Ineffective Assistance of Counsel
Ture next argues that both his pre-trial counsel and appellate counsel rendered ineffective assistance that warrants habeas relief.
a. New York and Strickland Standards on Habeas Review
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a defendant must show both that his counsel's
performance was deficient and that the deficient performance prejudiced his defense. 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A deficient performance is one in which “counsel made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. The Supreme Court has explained that, if there is a reasonable
probability that the outcome might have been different as a result of a legal error, the defendant has established prejudice and
is entitled to relief. Lafler v. Cooper, –––U.S. ––––, –––– – ––––, 132 S.Ct. 1376, 1385–86, 182 L.Ed.2d 398 (2012); Glover v.
United States, 531 U.S. 198, 203–04, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001); Williams, 529 U.S. at 393–95. Thus, Ture must
show that his trial counsel's representation was not within the range of competence demanded of attorneys in criminal cases,
and that there is a reasonable probability that, but for counsel's ineffectiveness, the result would have been different. See Hill v.
Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). An ineffective assistance of counsel claim should be denied
if the petitioner fails to make a sufficient showing under either of the Strickland prongs. See Strickland, 466 U.S. at 697 (courts
may consider either prong of the test first and need not address both prongs if the defendant fails on one).
New York's test for ineffective assistance of counsel under the state constitution differs slightly from the federal Strickland
standard. “The first prong of the New York test is the same as the federal test; a defendant must show that his attorney's
performance fell below an objective standard of reasonableness.' Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir.2010) (citing
People v. Turner, 5 N.Y.3d 476, 806 N.Y.S.2d 154, 840 N.E.2d 123 (N.Y.2005)). The difference is in the second prong. Under
the New York test, the court need not find that counsel's inadequate efforts resulted in a reasonable probability that, but for
counsel's error, the outcome would have been different. “Instead, the ‘question is whether the attorney's conduct constituted
egregious and prejudicial error such that the defendant did not receive a fair trial.” Id. at 123 (quoting People v. Benevento,
91 N.Y.2d 708, 674 N.Y.S.2d 629, 697 N.E.2d 584, 588 (N.Y.1998)). “Thus, under New York law the focus of the inquiry is
ultimately whether the error affected the ‘fairness of the process as a whole.” Id. (quoting Benevento, 674 N.Y.S.2d 629, 697
N.E.2d at 588). “The efficacy of the attorney's efforts is assessed by looking at the totality of the circumstances and the law at
the time of the case and asking whether there was ‘meaningful representation.’ ” Id. (quoting People v. Baldi, 54 N.Y.2d 137,
444 N.Y.S.2d 893, 429 N.E.2d 400, 405 (N.Y.1981)).
*9 The New York Court of Appeals views the New York constitutional standard as being somewhat more favorable to
defendants than the federal Strickland standard. Turner, 806 N.Y.S.2d 154, 840 N.E.2d at 126. “To meet the New York standard,
a defendant need not demonstrate that the outcome of the case would have been different but for counsel's errors; a defendant
need only demonstrate that he was deprived of a fair trial overall.” Rosario, 601 F.3d at 124 (citing People v. Caban, 5 N.Y.3d
143, 800 N.Y.S.2d 70, 833 N.E.2d 213, 222 (N.Y.2005)). The Second Circuit has recognized that the New York “meaningful
representation” standard is not contrary to the federal Strickland standard. Id. at 124, 126. The Second Circuit has likewise
instructed that federal courts should, like the New York courts, view the New York standard as being more favorable or generous
to defendants than the federal standard. Id. at 125.
b. Pre–Trial Counsel
Ture contends that his counsel was ineffective because counsel knew the victim and refused to put forth evidence of the County
Court and Jail's negligence in order to demonstrate that Ture was not culpable for his actions. But the Tollett bar discussed with
regard to claim 1, supra, also applies to “ineffective assistance claims relating to events prior to the guilty plea.” United States
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v. Coffin, 76 F.3d 494, 498 (2d Cir.1996). Therefore, any claim that Ture's counsel failed to raise evidence challenging Ture's
culpability is similarly barred by Ture's Alford plea.
c. Appellate Counsel
Ture additionally argues that his appellate counsel was ineffective “because he would not raise these issues of negligence by
the County Jail and Saratoga Court as a defense” and “did not use his chance of an oral argument.”
Because one of the main functions of appellate counsel is to “winnow[ ] out weaker arguments on appeal,” Jones v. Barnes,
463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), counsel is not required to present every nonfrivolous claim on
behalf of a defendant appealing his or her conviction, see Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d
756 (2000) (“[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather
may select from among them in order to maximize the likelihood of success on appeal.”) (citation omitted); accord Barnes,
463 U.S. at 754. To state a claim of ineffective assistance of appellate counsel, a petitioner must show (1) “that his counsel was
objectively unreasonable in failing to find arguable issues to appeal” and (2) “a reasonable probability that, but for his counsel's
unreasonable failure to” raise an issue on appeal “he would have prevailed on his appeal.” Smith, 528 U.S. at 285 (citations
omitted). “To establish prejudice in the appellate context, a petitioner must demonstrate that there was a reasonable probability
that his claim would have been successful before the state's highest court.” Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir.1994)
(citation and internal quotation marks and brackets omitted).
*10 Ture falls far short of meeting these standards. The record indicates that Ture's appellate counsel submitted a well-reasoned
and thorough brief arguing that the court should not have accepted Ture's guilty plea in light of the evidence that Ture was
not guilty by reason of mental disease or defect. Because Ture had accepted a plea offer and waived his right to appeal, the
grounds on which Ture could challenge his conviction were limited. Counsel made the tactical decision to not directly raise the
negligence of the County Court and Jail but rather to use those facts to argue that the trial court should have rejected his Alford
plea and instead adjudicated him not guilty by reason of mental disease or defect. Ture cannot show that appellate counsel's
tactical decision was objectively unreasonable, particularly given that, as discussed supra, the substances of the claims are
substantially identical. Moreover, because Ture's asserted negligence claim is not a jurisdictional or constitutional defense, New
York law-like federal law-mandates that Ture forfeited this claim by pleading guilty. See People v. Parilla, 8 N.Y.3d 654, 838
N.Y.S.2d 824, 870 N.E.2d 142, 145 (N.Y.2007) (holding that “under a guilty plea, a defendant ... forfeits the right to revive
certain claims made prior to the plea” (citation and internal quotation marks omitted)). Thus, Ture cannot demonstrate that the
New York Court of Appeal would have found in his favor on this claim even if appellate counsel had directly asserted it.
Ture's assertion that counsel was ineffective for failing to request or participate in oral argument also must fail. Given that
appellate counsel drafted a well-reasoned and thorough brief asserting Ture's most viable argument, Ture cannot show that
counsel's decision to not partake in oral argument rendered him ineffective. See, e.g., Vega v. United States, 261 F.Supp.2d 175,
177 (E.D.N.Y.2003) (denying ineffective assistance of appellate counsel claim where counsel submitted an appellate brief but
neglected to request an oral argument because petitioner failed to show that oral argument would have changed the results of his
appeal); see also United States v. Birtle, 792 F.2d 846, 847–48 (9th Cir.1986) (“The failure of counsel to appear at oral argument
or to file a reply brief is not so essential to the fundamental fairness of the appellate process as to warrant application of a per se
rule of prejudice.”). Accordingly, Ture cannot prevail on any argument asserted in his ineffective assistance of counsel claim.
Claim 4: Harsh and Excessive Sentence
Finally, Ture argues that his sentence is excessive for a first-time felon with no prior violent history. Ture was convicted, upon
his guilty plea, of attempted murder and first-degree assault, both of which are class B felonies. See N.Y. PENAL LAW §§
110/125.25(1), 120.10(1). New York law mandates that the sentence imposed for these crimes must be at least 5 years and must
not exceed 25 years. Id. § 70.02(3)(a). The 15–year sentence imposed upon Ture was thus within the statutory range. Ture was
also convicted of second-degree assault, a class D felony, for which New York law requires a sentence that is at least 2 years and
does not exceed 7 years. See N.Y. PENAL LAW §§ 120.05(2), 70.02(3)(c). The court sentenced Ture to 5 years' imprisonment
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on this conviction. The court also sentenced him to 1 year of imprisonment for the criminal possession of a weapon conviction,
the maximum sentence allowed under New York law. See N.Y. PENAL LAW §§ 265.01(2), 70.15(1). These sentences were all
ordered to run concurrently. The court additionally imposed a 5–year term of post-release supervision for the class B felonies
and a 3–year term for the class D felonies. See N.Y. PENAL LAW §§ 70.45(2)(e),(f).
*11 It is well-settled that an excessive sentence claim may not be raised as grounds for federal habeas corpus relief if the
sentence is within the range prescribed by state law. White v. Keane, 969 F.2d 1381, 1383 (2d Cir.1992); Bellavia v. Fogg, 613
F.2d 369, 373 (2d Cir.1979) (setting mandatory sentences is solely the province of state legislature); Hernandez v. Conway, 485
F.Supp.2d 266, 284 (W.D.N.Y.2007) (excessive sentence claim does not present a federal question cognizable on habeas review
where the sentence was within the range prescribed by state law). Because the sentences imposed were within the statutory
range prescribed by New York law, Ture cannot prevail on this claim.
V. CONCLUSION
Ture is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); Banks
v. Dretke, 540 U.S. 668, 705, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (“To obtain a certificate of appealability, a prisoner
must ‘demonstrat[e] that jurists of reason could disagree with the district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’ ” (quoting Miller–El,
537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. See FED.
R.APP. P. 22(b); 2D CIR. R. 22.1.
The Clerk of the Court is to enter judgment accordingly.
All Citations
Not Reported in F.Supp.3d, 2014 WL 2895439
Footnotes
1 Steven Racette, Superintendent, Clinton Correctional Facility, is substituted for The Honorable Jerry Scarano, Saratoga
County Court. Rule 2(a), Rules Governing Section 2254 Cases in the United States District Courts (petitioner “must
name as respondent the state officer who has custody”); FED. R. CIV. P. 25(d).
2 An Alford plea is entered when the defendant “voluntarily, knowingly, and understandingly consent[s] to the imposition
of a prison sentence even [though] he is unwilling or unable to admit his participation in the acts constituting the crime.”
N. Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
3 Section 220.60(3) provides: “At any time before the imposition of a sentence, the court in its discretion may permit a
defendant who has entered a plea of guilty to the entire indictment or to part of the indictment, or a plea of not responsible
by reason of mental disease or defect, to withdraw such plea, and in such event the entire indictment, as existed at the
time of such plea, is restored.” N.Y. CRIM. PROC. LAW § 220.60(3).
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4 The fact that Ture's plea was made pursuant to Alford and not an unqualified guilty plea does not save his claim. See In
re Silmon v. Travis, 95 N.Y.2d 470, 475, 718 N.Y.S.2d 704, 741 N.E.2d 501 (N.Y.2000) (noting that, under New York
law, Alford pleas “are no different from other guilty pleas”). Courts within this Circuit have held in § 2254 cases that the
Tollett “principle applies with equal force where, as here, the accused entered an Alford plea.” See, e.g., Kalu v. New York,
No. 08–CV–4984, 2009 WL 7063100, at * 10 (E.D.N.Y. Sept.15, 2009) (collecting cases), report adopted sub nom,
Ndukwe v. New York, 2010 WL 4386680 (E.D.N.Y. Oct.28, 2010). Other Circuits have come to the same conclusion.
See Fields v. Att'y Gen., 956 F.2d 1290, 1294–96 (4th Cir.1992) (applying Tollett to Alford plea); Hibbler v. Benedetti,
No. 07–cv00467, 2011 WL 2470516, at *3 n. 5 (D.Nev. June 17, 2011) (“Ninth Circuit law confirms that the Tollett and
Hill waiver and bar rules apply to Alford or nolo contendere pleas to the same extent as unqualified guilty pleas.”).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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KeyCite Yellow Flag
Distinguished by Aguilar v. Capra, S.D.N.Y., May 21, 2019
2002 WL 619282
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Luis A. VAZQUEZ, Petitioner,
v.
Floyd G. BENNETT, Respondent.
No. 00 CIV. 3070(AKH).
|
April 17, 2002.
ORDER DENYING PETITION
HELLERSTEIN, D.J.
*1 Petitioner Luis A. Vazquez seeks habeas corpus review under 28 U.S.C § 2254 of his conviction by the New York Supreme
Court, Bronx County. The petition, filed April 1, 2001, alleges several bases for review. First, petitioner alleges that the delay of
the New York court in deciding his appeal of the criminal conviction violated his due process rights. Second, petitioner claims
that he received ineffective assistance of counsel in violation of the Fifth, Sixth and Thirteenth Amendments. Finally, petitioner
alleges that all charges against him were dismissed and therefore his continued incarceration violates his constitutional rights
under the Fifth and Fourteenth Amendments. For the reasons stated below, petitioner's petition for habeas relief is denied.
Background
Petitioner is incarcerated pursuant to a judgment entered on March 20, 1997 by the New York Supreme Court, Bronx County
(Perone, J.). Petitioner was convicted, after a jury trial, of criminal sale of a controlled substance in the third degree and criminal
possession of a controlled substance in the third degree under N.Y. Penal L., §§ 220.39(1) and 220.16(1), respectively. Petitioner
was sentenced as a second felony offender to concurrent prison terms of six to twelve years.
Petitioner filed an earlier petition for review of the same judgment of conviction on November 17, 1998. That prior petition was
dismissed without prejudice as premature, since petitioner's direct appeal of his criminal conviction was still pending at that
time. See Vazquez v. Dufrain, No. 98 Civ. 8182(TPG), slip op. (S.D.N.Y. Nov. 17, 1998). This, his second petition, was filed
April 21, 2000 and originally was dismissed by Chief Judge Mukasey of this court for failure to exhaust state court remedies.
See Vazquez v. Bennett, 00 Civ. 3070(MBM), slip op. (S.D.N.Y. April 21, 2000). The Second Circuit Court of Appeals vacated
the dismissal and remanded the case for further proceedings. See Vazquez v. Bennett, 00 Civ. 2323, mandate (2d Cir. Nov. 22,
2000). On remand, Chief Judge Mukasey determined, first, that because petitioner's prior petition had been dismissed without
prejudice rather than on the merits, his second petition need not be treated as an application for leave to file a second or successive
petition. Chief Judge Mukasey then concluded that petitioner had not provided sufficient information to enable the court to rule
on the merits, and therefore directed petitioner to file an amended petition. See Vazquez v. Bennet, 00 Civ. 3070(MBM), slip
op. (S.D.N.Y. Dec. 18, 2000). Petitioner filed an amended petition and, subsequently, petitioner's case was transferred to me. I
have now reviewed the case on the merits, and I find that there is no merit to petitioner's claims.
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I. Appellate Delay
Petitioner's first claim for habeas relief stems from the state court's alleged delay in hearing petitioner's direct appeal from
his judgment of conviction. Petitioner alleges that the delay violated his right to due process of law, guaranteed under the
Constitution. Since claims of appellate delay need not be exhausted in the state courts before habeas review may be sought,
Mathis v. Hood, 851 F .2d 612, 614–15 (2d Cir.1998) (hereinafter, “Mathis II ”), I can evaluate petitioner's claim of appellate
delay without first deciding whether petitioner exhausted his state court remedies.
*2 Judgment convicting petitioner was entered on March 20, 1997, and petitioner's trial attorney thereafter filed a Notice
of Appeal on April 30, 1997. It was not until April 17, 2001, however—almost four years later, and one year after petitioner
filed the instant habeas petition—that the New York Appellate Division, First Department, issued a written opinion denying
all grounds for appeal.
“[O]nce a state has provided defendants in criminal cases with the right to appeal, ‘due process requires that an appeal be heard
promptly.” ’ Elcock v. Henderson, 947 F.2d 1004, 1007 (2d Cir.1991) (hereinafter, “Elcock I ”) (quoting Mathis v. Hood, 937
F.2d 790, 794 (2d Cir.1990) (hereinafter, “Mathis I ”)). The state court's decision denying petitioner's appeal does not moot a
petition for habeas relief. Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir.1990). “Even though his conviction has been affirmed
and his appeal has been heard by the state court, ‘[the petitioner is] entitled to a habeas determination of whether [the delay
rendered his appeal] no more than a “meaningless ritual.” ” ’ Id. (quoting Simmons, 898 F.2d at 867 (quoting Evitts v. Lucey,
469 U.S. 387, 394 (1985))).
While a four-year delay between the filing of a Notice of Appeal in a criminal case and a decision on that appeal may be longer
than desired, it does not necessarily mean that a constitutional wrong occurred. To determine whether a delay in processing or
perfecting a direct appeal from a criminal conviction is cognizable as a deprivation of the appellant's due process rights, courts
are directed to examine four factors: (1) whether the delay is excessive; (2) whether there was an acceptable excuse for the
delay; (3) whether the prisoner asserted his right; and (4) whether the prisoner was prejudiced by the delay. Barker v. Wingo,
407 US. 514, 530 (1972); Elcock I, 947 F.2d at 1007 (Barker framework applicable to claims of appellate delay). In applying
the Barker factors, “no one factor is dispositive and all are to be considered together with the relevant circumstances.” Simmons
v. Reynolds, 898 F.2d 865, 870 (2d Cir.1990).
The first Barker factor asks the court to consider whether the appellate delay is excessive. Although the federal courts have not
set a bright line rule as to how much time must pass before a delay on appeal becomes “excessive” within the Barker framework,
the courts have been critical of long appellate delays. See, e.g., Muwwakkil v. Hoke, 968 F.2d 284 (2d Cir.1992) (13–year delay);
Cody v. Henderson, 936 F.2d 715 (2d Cir.1991) (ten-year delay); Stubbs v. Leonardo, 973 F.2d 167 (2d Cir.1992) (nine-year
delay); Elcock I, 947 F.2d 1004 (eight-year delay); Diaz, 905 F.2d 652 (seven-year delay); Mathis II, 937 F.2d 790 (six-year
delay); Simmons, 898 F.2d 865 (six-year delay). The delay in this case—four years—is long, but not nearly as long as the delays
in the cases cited above. The first Barker criterion does not offer petitioner much help.
*3 The second Barker factor asks whether the delay should be excused. Here, the delay between filing and decision was caused
by petitioner's court-appointed counsel. On July 1, 1997, approximately one month after petitioner filed his Notice of Appeal,
the Appellate Division assigned Daniel L. Greenberg, Esq., of the Legal Aid Society, as his counsel on appeal. Fourteen months
later, on September 3, 1998, the Appellate Division granted the Legal Aid Society's motion to be relieved from representing
petition and assigned Moira Casey, Esq., to prosecute petitioner's appeal. Neither petitioner nor the government explains why
the Legal Aid Society asked to be excused, or why 14 months elapsed before successor counsel was assigned.
After being assigned, Casey requested, and received, nine enlargements of time in which to file the appellate brief. The first of
these stipulations was dated February 18, 1999, and enlarged the time to file the appellate brief to March 22, 1999. The second,
dated July 9, 1999, enlarged the time to file the appellate brief to August 9, 1999. Seven more stipulations followed in succession,
on October 1, November 7, and December 1, 1999, and on February 2, March 24, August 7, and November 10, 1999. Each of
the stipulations was accompanied by an affidavit from Casey, stating that she had not yet started working on petitioner's appeal
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because she was engaged in several other appeals, and because the record was long and the issues complicated in petitioner's
case. Finally, on January 2, 2001, Casey filed an appellate brief, thereby perfecting petitioner's appeal. The Appellate Division
rendered a decision on the appeal on April 17, 2001, a mere four and a half months after receiving the appellate brief.
Thus, the delay in petitioner's direct appeal was largely caused by motions of his own counsel. Nevertheless, the state court
also must take some responsibility, for it has the means to supervise its attorneys and may grant or deny enlargements of time
accordingly. Elcock v. Henderson, 1991 WL 13975, at * 1 (E.D.N.Y.) (citing Simmons, 708 F.Supp. at 509), aff'd Elcock I, 947
F.2d 1004 (2d Cir.1991); see also Muwwakkil, 968 F.2d at 285 (faulting state for failing both to supervise appointed counsel
and monitor its calendar).
Petitioner, however, has not shown that he complained, either to his lawyer or to the court, the third Barker inquiry. Compare
Elcock I, 947 F.2d at 1007 (confirming district court's finding that Elcock had made numerous attempts to speed up the appellate
process by writing to the Appellate Division numerous times). The only efforts petitioner claims to have made to assert his right
to a speedy appeal was to “tr[y] to contact lawyers, but they did not want[ ] to hear.” Petitioner's neglect, although a factor,
should not be given too much weight, for his incarcerated state and his dependence on court-appointed counsel gave him few
real options. I therefore consider this Barker criterion as essentially neutral.
*4 The last Barker factor asks whether petitioner has been prejudiced by the delay in his appeal. “[P]rejudice in this context
should be assessed in light of the interests that petitioner's due process right to a reasonably speedy appeal is designed to protect,”
i.e., “(1) to prevent oppressive post-trial incarceration, should the appeal ultimately prove successful; (2) to minimize anxiety
and concern of the accused; and (3) to limit the possibility that the appeal and any resulting retrial will be compromised by the
passage of time.” Simmons, 708 F.Supp. at 510. Petitioner first claims that he suffered numerous “personal problems” related
to his continued incarceration during the appeal period, but nothing specific is shown and I do not find any prejudice on this
account.
Petitioner also contends that the appeal itself was prejudiced by the delay because he received ineffective assistance of counsel
in violation of the Sixth Amendment. Petitioner charges that his attorney “allowed the courts to behave in such bias manner[ ]
toward [petitioner],” but does not detail his precise complaints. Petitioner's argument is without merit.
The standard for finding a Sixth Amendment violation in appellate delay cases was set forth in Mathis II, 937 F.2d at 796, and
clarified in Elcock I, 947 F.2d at 1009–1011. In Mathis II, the prisoner's appeal was not decided for six years, despite the fact
that he actively prodded both the court and his attorney. Additionally, during the delay, Mathis filed a formal grievance against
his attorney. When the attorney finally perfected the prisoner's appeal, the brief was “ ‘poorly organized” ’ and “ ‘inarticulate to
the point of being incomprehensible.” ’ Mathis II, 937 F.2d at 1009. The Circuit Court affirmed the district court's determination
that there was “an actual conflict of interest sufficient to undermine its confidence in the outcome of the appeal, a conflict that
established a per se violation of Mathis's right to effective assistance of counsel.” Mathis II, 937 F.2d at 796.
The Elcock I court clarified that the holding in Mathis II was limited, warning that where a petitioner has filed no grievance or
other formal complaint against his or her attorney prior to the perfection of the appeal, where the quality of representation is “not
poor,” and where there is “no other evidence of an actual conflict,” there is “no Sixth Amendment violation within the Mathis
[II] framework.” Elcock I, 947 F.2d at 1010–11. However, the Elcock I court instructed that a Sixth Amendment violation can
be found where, although no grievance or other formal complaint has been filed, “the quality of [the attorney's] representation
[i]s sufficiently poor to undermine confidence in the outcome of the appeal,” or where there is evidence that the “poor quality
was caused by [the attorney's] fear of potential disciplinary or other proceedings against him as a result of the delay.” Elcock I,
947 F.2d at 1011. Otherwise, the court should dismiss the Sixth Amendment claim for habeas relief. Id.
*5 Neither the Mathis II or Elcock I framework is satisfied by the current petition. Moira Casey's representation of the petitioner
on appeal was certainly not of poor quality. Nor was it tainted by any suggestion of conflict. She asked for enlargements of
time in order to do a good job for her client, and I find that she did do a good job for her client. Her 37–page brief is well
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organized, well written, appears well researched, and presents effective arguments. There is no evidence that the quality of
the Casey's work was tinged by “fear of potential disciplinary proceedings” or that the outcome of the appeal was in any way
undermined either by Casey's presentation or the delay more generally. In all, based on the teachings of Mathis II and Elcock
I, I find no basis in the record for a conclusion that petitioner's appeal was compromised in any way by the four-year period
in which the appeal was pending.
Considering the Barker factors in total, I conclude that the four-year delay in deciding petitioner's direct appeal did not violate
his due process rights.
II. Other Habeas Claims
In addition to his appellate delay claim, petitioner alleges two other claims for habeas relief. First, petitioner claims that he
received ineffective assistance of trial counsel. Second, petitioner alleges that, because all charges against him were dismissed,
his continued incarceration is unconstitutional.
As a prerequisite to habeas relief, 28 U.S.C. § 2254 requires exhaustion of all available state remedies. Rose v. Lundy, 455 U.S.
509 (1982); 28 U.S.C. § 2254(b)(1)(A). To satisfy the exhaustion requirement, a petitioner must show that his or her claims
were exhausted both procedurally and substantively. Procedural exhaustion requires that all claims raised in the habeas petition
first be raised in the state trial and appellate courts. 28 U.S.C. § 22554(b), (c). Substantive exhaustion requires that petitioner
fairly present his federal constitutional claims to the state courts. Levine v. Commissioner of Correctional Services, 44 F.3d
121, 124 (2d cir.1995).
Petitioner's remaining claims are unexhausted for federal habeas review because they were not raised in the state court.
Petitioner's appellate brief raised three issues:
1. Petitioner was denied his right to a fair trial because the court incorrectly disallowed peremptory challenges against two
prospective jurors, where defense counsel proffered legitimate nonracial objections against the jurors and the prosecution
did not meet its burden of persuasion.
2. The trial court abused its discretion in denying appellant an adjournment to secure the officer in charge of the buy-and-
bust operation, and thus deprived appellant of his fundamental right to present witnesses in his defense.
3. Petitioner was denied his right to a fair trial by the court's refusal to give a missing witness charge as to the officer in
charge of the buy-and-bust operation.
*6 Even given the broadest interpretation possible, none of petitioner's claims on direct appeal raise either alleged
ineffectiveness of trial counsel or the alleged dismissal of the indictment, the issues in as those in the instant habeas petition.
Petitioner has not satisfied the exhaustion requirement.
Although petitioner has not exhausted his habeas claims, we need not now require him to return to state court. The claims are
now procedurally forfeited because no state procedure appears to be available to petitioner to correct the constitutional defects he
raises here. Teague v. Lane, 489 U.S. 288, 297–98 (1989). Petitioner cannot now raise his claims before the Appellate Division
because the time to do so under state law has expired. See N.Y. Rules of Court § 600.8(b). Moreover, the Appellate Division has
no basis to allow petition an extension to perfect a second appeal since he has already perfected one appeal. Nor may petitioner
seek leave to appeal to the New York Court of Appeals because he has already used the one leave request to which he is entitled.
See N.Y. Rules of Ct. § 500.10(a). Finally, petitioner's ineffectiveness of counsel and judicial bias claims could have been raised
on direct appeal since his appellate attorney was different than his trial attorney; because these claims were not raised on direct
appeal, collateral review of those claims in state court is also procedurally barred. See NYCPL § 440.10(2)(c).
Petitioner cannot demonstrate cause for his failure nor resulting prejudice, and therefore cannot use this avenue to avoid
dismissal. Sawyer v. Whitley, 505 U.S. 333, 338 (1992). To show “cause” for his failure to exhaust state remedies before bringing
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a habeas claim, petitioner must show that some objective factor external to the defense impeded his efforts to raise the claims
in state court, such as the government's concealment of evidence. McCleskey v. Zant, 499 U.S. 467, 493 (1991). Petitioner
attempts no such showing here, having offered no explanation as to why his habeas claims were not raised in state court. Since
petitioner received new counsel for his appeal, there was nothing to keep him from arguing that trial counsel was ineffective.
Since petitioner alleges that the charges against him were dropped soon after judgment of conviction, there is no reason why
this could not have been discovered earlier and brought to the Appellate Division's attention. As petitioner cannot demonstrate
a valid excuse for his failure to exhaust state remedies, I need not consider whether any prejudice resulted from the failure.
Engle v. Isaacs, 456 U.S. 107, 134 (1982).
Although petitioner did not exhaust his state remedies and is now procedurally barred from doing so, I may still rule on the
merits of his petition. 28 U.S.C. § 2254(b)(2). Petitioner claims that he was convicted and is being imprisoned despite the fact
that all charges against him were dismissed. The record does not support these allegations. On March 20, 1997, Petitioner was
convicted on two of three charges against him filed under Indictment Number 8102/95. Even if this indictment was dismissed
on April 29, 1997, as petitioner claims, the dismissal is irrelevant because a judgment of conviction supersedes an indictment. 1
Petitioner also alleges constitutional irregularity in the fact that another indictment against him, Indictment Number 8136/95,
was dismissed on February 13, 1998. The dismissal of this indictment is likewise irrelevant, as petitioner is incarcerated based
on a judgment of conviction under the earlier indictment. Petitioner's claim for habeas relief based on his continued incarceration
despite dismissals of the indictments against him is unfounded and hereby denied.
*7 Petitioner also claims that he did not receive effective representation at trial, that his counsel allowed the court to act in a
biased manner toward him. Petitioner points to nothing in the trial record reflecting bias by the trial court. From the appellate
brief and the Appellate Division's ruling, there is no evidence that petitioner's dissatisfaction with the outcome of his case can
in any way be blamed either on his trial counsel or the court's conduct. Petitioner's claim for habeas relief based on ineffective
assistance of trial counsel is therefore dismissed.
Conclusion
For the reasons stated above, petitioner's habeas petition is hereby dismissed. As petitioner has not made a substantial showing
of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253. I certify pursuant to 28 U.S.C.
§ 1915(a) that any appeal from this order would not be taken in good faith. See Coopedge v. United States, 369 U.S. 438 (1962).
The Clerk of the Court is directed to mark this matter as closed.
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2002 WL 619282
Footnotes
1 The third charge of Indictment Number 8102/95 was not submitted to the jury and is therefore deemed dismissed by
operation of law, see N.Y.Crim. § 300.40(7). The dismissal of this charge is likewise irrelevant, since petitioner was not
convicted or incarcerated on this charge.
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