Opinion
9:98-CV-0090 (DNH)(GLS).
October 3, 2000
IAN DAWES, Petitioner, pro se, Sullivan Correctional Facility, Fallsburg, NY.
HON. ELIOT SPITZER, Office of the Attorney General, State of New York, OF COUNSEL, STEVEN H. SCHWARTZ, Esq., Ass't Attorney General, Albany, NY, FOR THE RESPONDENT.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner Ian Dawes ("petitioner" or "Dawes") filed a petition pursuant to 28 U.S.C. § 2254 in this District on January 20, 1998. Thereafter, the undersigned issued an order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, that directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response to the petition. Docket No. 3. The Attorney General thereafter filed his response. See Docket Nos. 6-7. Dawes has filed an affidavit in response to such papers. See Docket No. 8.
By Order filed October 13, 1999, this case was re-assigned to the Hon. David N. Hurd, U.S. District Judge, by order of then-Chief Judge Thomas J. McAvoy. Docket No. 9. Pursuant to Rule 72.3(c) of the Local Rules of Practice for the Northern District of New York, this matter has been referred to the undersigned for a Report-Recommendation.
II. Discussion
On April 8, 1997, petitioner was convicted by a jury in the Cayuga County Court for the crime of promoting prison contraband in the first degree. Dawes was thereafter sentenced to 3 1/2 to 7 years imprisonment on this conviction. Petitioner claims that he attempted to appeal such decision, but that the Appellate Division violated his Due Process rights by "unconstitutionally delay[ing]" a ruling on such appeal. Docket No. 1 at 5.
In his response, the respondent argues that the petition should be dismissed. While conceding that Due Process requires that a criminal appeal be heard promptly, the respondent argues that the facts of this case warrant a finding that the petitioner's Due Process rights have not been violated.
A. Effect of Decision by Appellate Division
Initially, the undersigned notes that on November 12, 1999, the Appellate Division, Fourth Department issued a decision on petitioner's appeal. See People v. Dawes, 266 A.D.2d 927 (4th Dep't 1999). Thus, before looking at the substance of petitioner's application, this Court must first ascertain whether the Appellate Division's decision, which affirmed the conviction, has rendered moot the habeas petition filed herein.
The undersigned has confirmed with Christopher T. Valdina, Esq., an Assistant District Attorney for the Cayuga County District Attorney's Office ("Cayuga County District Attorney"), that the Dawes decision in fact relates to the crime that is the subject of the present petition.
In Simmons v. Reynolds, 898 F.2d 865 (2d Cir. 1990), the Second Circuit, in discussing this issue, held:
A state court's hearing of an appeal does not moot a habeas petition based on a claimed denial of due process of the petitioner's right to appeal because it does not resolve the fundamental issue raised: whether delay or ineffective assistance of counsel violated the petitioner's right to an adequate and effective appeal.
Id. at 867 (citation omitted).
The Simmons court also held that a petitioner is not required to exhaust his state court remedies when asserting a claim that his appeal has been unconstitutionally delayed because a petitioner is "not required to take further futile steps in state court in order to be heard in federal court." Id. at 867-68.
Therefore, the undersigned now considers the merits of the petition filed by Dawes.
B. Petitioner's Claim that the Delay in Deciding his Appeal Denied Dawes his Due Process Rights
In determining whether a delay of a prisoner's appeal has violated an appellant's right to Due Process, the Court must look to the factors discussed by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530-33 (1972). In the context of a claim alleging appellate delay, a court is to consider: (i) the length of the appellate delay; (ii) the reason for the delay; (iii) petitioner's assertion of his right to a speedy appeal; and, (iv) the prejudice to petitioner caused by the delay. See Elcock v. Henderson, 947 F.2d 1004, 1007 (2d Cir. 1991). In addition to these four factors, federal-state judicial comity is a fifth factor courts may consider. Brooks v. Jones, 875 F.2d 30, 32 (2d Cir. 1989).
As to the first factor, petitioner filed his notice of appeal on May 20, 1997. Docket No. 6 at Ex. A. The Appellate Division issued its decision approximately two and one-half years after petitioner filed his notice of appeal. While this time period is well short of the six to ten year period this Circuit has found to be excessive, Elcock, 947 F.2d at 1007 (citing cases), a two and one half year delay has been found to be "substantial enough to approach 'presumptively prejudicial' — and, accordingly, it warrants further inquiry into the other factors." Sinatra v. Barkley, 741 F. Supp. 39, 41 (E.D.N.Y. 1990) (quoting Barker, 407 U.S. at 530).
Viewing next the reason for the delay, respondent argues that Dawes himself is the "sole cause for delay in the processing and perfection of his appeal." Docket No. 7 at 6. In this regard, the respondent has provided the Court with a copy of a letter from the Cayuga County District Attorney which indicates that as of March 20, 1998, the Appellate Division had not received a motion by Dawes to proceed as a poor person or a request from petitioner for assignment of counsel regarding his appeal. Id. at Ex. B. Dawes contends that the representation made by the District Attorney in such letter "is completely false." Docket No. 8 at ¶ 2. According to Dawes, he filed all of the papers necessary to pursue his appeal by July 10, 1997. Affidavit of Ian Dawes (5/9/98) (Docket No. 8) at ¶ 3. In support of this claim, petitioner has provided the Court with a letter from a deputy clerk for the Appellate Division. However, this letter, dated August 13, 1997, is ambiguous at best. It simply states "[t]he above referenced motion papers and briefs were received by this office." Id. at attached letter. However, petitioner's letter referred to both the appeal at issue herein as well as another completely unrelated appeal. Id. Therefore, the evidence filed herein relating to this issue indicates that Dawes may have been at least partially responsible for the delay in his appeal.
As to the third factor, the record demonstrates that Dawes promptly filed his notice of appeal. In fact, the respondent concedes this fact. See Docket No. 7 at 6. However, if, as indicated in the Cayuga County District Attorney's letter, Dawes did not otherwise vigorously pursue his appeal, this would not be an instance where the Court could find that the appellant has "'repeatedly and energetically asserted his rights.'" Garcia Montalvo v. U.S., 862 F.2d 425, 426 (2nd Cir. 1988) (quoting United States v. Vispi, 545 F.2d 328, 334 (2d Cir. 1976)).
In analyzing the fourth Barker factor, prejudice, the undersigned must look to the interests that petitioner's right to a timely appeal are designed to protect. In the "appellate delay" context, these interests are: "'(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.'" Cameron v. LeFevre, 887 F. Supp. 425, 433 (E.D.N.Y. 1995) (quoting Simmons v. Reynolds, 708 F. Supp. 505, 510 (E.D.N.Y. 1989)); (other citations omitted); Collins v. Rivera, 1999 WL 1390244, at *5 (W.D.N.Y. Dec. 2, 1999).
As noted above at p. 3, Simmons was subsequently affirmed by the Second Circuit.
Because petitioner's conviction has been affirmed, any injury caused by the delay did not result in any oppressive or illegal deprivation of petitioner's liberty. Additionally, Dawes has not provided the Court with any evidence that he has suffered any undue anxiety or concern as a result of the delay in the processing of his appeal. Finally, petitioner does not appear to have argued to the Appellate Division, and no claim has been made in this Court, that the passage of time between the filing of his notice of appeal and the decision issued by the Appellate Division compromised the rights of Dawes. Thus, petitioner has failed to demonstrate that he has been prejudiced in any way by the delay that forms the sole basis for his petition.
Turning to the final factor, i.e., federal-state comity, the court notes that comity "commands a presumption that a state will act on an appeal, and that a federal court should stay its hand if it would only hinder the appeal process." Wheeler v. Kelly, 639 F. Supp. 1374, 1381 (E.D.N.Y.), aff'd, 811 F.2d 133 (2nd Cir. 1987). Where, however, the appeal has already been decided by the appellate court, further consideration of this factor is unnecessary. Sinatra, 741 F. Supp. at 42 (citing Simmons, 898 F.2d at 868).
In sum, after carefully considering all of the above factors in conjunction with the facts of this case, the Court finds that while there does appear to have been some appellate delay in this case, Dawes has failed to establish that such delay amounted to a deprivation of his rights to Due Process in light of the Barker factors discussed above. Accordingly, the undersigned recommends that petitioner's application for a writ of habeas corpus be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that petitioner's habeas petition be denied and dismissed.
It is further
ORDERED, that the Clerk serve a copy of this Order on the parties by certified mail.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have ten (10) days within which to file written objections to the foregoing report-recommendation. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.
IT IS SO ORDERED.