Opinion
01 Civ. 9374 (KMW)(AJP)
October 8, 2002
OPINION ORDER
Neither party has submitted sufficient evidence for the Court to determine: (1) whether "the factual predicate" of Rodriguez's claims could have been earlier "discovered through the exercise of due diligence," such that his claims should be dismissed under the AEDPA's one-year statute of limitations, 28 U.S.C. § 2244(d)(1)(D); or (2) whether the ineffectiveness of Rodriguez's counsel in failing to file a notice of appeal provides the "cause" and "prejudice" under Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029 (2000), to excuse Rodriguez's state court default. Specifically, the record is largely devoid of evidence regarding: (1) what Rodriguez told his trial counsel at or before the sentencing hearing regarding an appeal; (2) whether before or after the sentencing hearing Rodriguez's counsel discussed an appeal with Rodriguez; (3) what was said by counsel and Rodriguez about an appeal; (4) whether any continuing contact between Rodriguez and his trial counsel might have led Rodriguez to believe that counsel had filed a notice of appeal and/or was prosecuting his appeal; and (5) why Rodriguez waited as long as he did to file his application for appointment of counsel in the First Department.
Pursuant to 28 U.S.C. § 2254(e)(2), the Court "shall not hold an evidentiary hearing" if a habeas petitioner has "failed to develop the factual basis of a claim in State court proceedings." In Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 1488 (2000), the Supreme Court held that "a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." The State opposes an evidentiary hearing under § 2254(e)(2), arguing that Rodriguez demonstrated a "lack of diligence" by failing to marshal the relevant facts in state court pursuant to a timely C.P.L. § 460.30 application. (Dkt. No. 12: State Reply Br. at 8-10.) The Court disagrees.
Section 2254(e) provides in pertinent part:
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that —
(A) the claim relies on —
(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2).
First, even if the Court were prohibited from holding a hearing on the merits pursuant to § 2254(e)(2), the Court has discretion to hold a hearing on the State's assertion that Rodriguez's claims are time barred by the AEDPA one-year limitations period. See 28 U.S.C. § 2244(d)(1)(D); Valverde v. Stinson, 224 F.3d 129, 135 (2d Cir. 2000) (remanding for evidentiary hearing, or other means of developing the record, on whether the AEDPA limitations period should be equitably tolled); see also Wims v. United States, 225 F.3d 186, 188-91 (2d Cir. 2000) (reversing dismissal of 28 U.S.C. § 2255 action on statute of limitations grounds and remanding for further proceedings, because the unreasonableness of petitioner's delay was not clear from the face of the pleadings). The AEDPA equitable tolling issue and the Roe v. Flores-Ortega issue involve largely identical factual questions.
Second, the State's due diligence argument under § 2254(e)(2) begs the question. At this Court's suggestion, Rodriguez filed a coram nobis petition to raise his ineffective assistance claim in state court, which the First Department summarily rejected without a hearing, thus preventing Rodriguez, who was pro se, from developing a factual record by, for example, obtaining testimony from his former attorney. Since the undeveloped record therefore does not appear to be due to Rodriguez's "lack of diligence" or other "fault," § 2254(e) does not prevent this Court from holding a hearing. See, e.g., McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998) (A "petitioner cannot be said to have `failed to develop' a factual basis for his claim unless the undeveloped record is a result of his own decision or omission."); Bonner v. Bennett, 99 Civ. 11310, 2001 WL 1223482 at *3-4 (S.D.N.Y. Oct. 12, 2001) (failure to develop factual record was not attributable to lack of diligence). Indeed, federal courts have not hesitated to hold evidentiary hearings to resolve crucial Roe v. Flores-Ortega factual questions. See Roe v. Flores-Ortega, 528 U.S. at 487, 120 S.Ct. at 1040 (Remanding for further proceedings because "[b]ased on the record before us, we are unable to determine whether [petitioner's attorney] had a duty to consult with [petitioner] (either because there were potential grounds for appeal or because [petitioner] expressed interest in appealing), whether she satisfied her obligations, and, if she did not, whether [petitioner] was prejudiced thereby."); Loveland v. Hatcher, 231 F.3d 640, 644-45 (9th Cir. 2000) (remanding for an evidentiary hearing on whether, under Roe v. Flores-Ortega, habeas petitioner "actually relied on his counsel to file a direct appeal and, if he did, whether that reliance was reasonable"); Smoot v. McGinnis, No. CV 98-4145, 2001 WL 1328593 at *5 (E.D.N.Y. Sep. 20, 2001) ("While the law does consider it `professionally unreasonable' for an attorney to disregard a client's `specific instructions . . . to file a notice of appeal,' an evidentiary hearing would be necessary before this court could accept [petitioner's] representations as fact." But because in petitioner's guilty plea he waived his right to appeal, no hearing necessary.) (citations omitted).
The Court is troubled by Rodriguez's failure — once this Court appointed counsel for him — to submit an affidavit describing in detail his relevant conversations with counsel and why he filed his application for appointment of counsel in the First Department when he did (and not before). The Court further notes that the State also has failed to supplement the factual record, even though it may be in a better position than Rodriguez to obtain an affidavit from Rodriguez's trial counsel rebutting Rodriguez's assertions. See, e.g., Davila-Bajana v. United States, 01 Civ. 7329, 2002 WL 2022646 at *4 (E.D.N.Y. June 26, 2002) (based on defense attorney's affidavit contradicting petitioner's account, court rejected § 2255 petitioner's claim that his attorney ignored his request to file a notice of appeal, without holding a hearing).
Rather than ordering a full-blown hearing at this juncture, the Court will simply order the parties to obtain an affidavit from Rodriguez's trial counsel, to be submitted by October 28, 2002, describing in detail all communications (including conversations or correspondence) trial counsel had with Rodriguez relating to a possible appeal. See Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) (§ 2255 petition dismissed based on "detailed affidavit from trial counsel credibly describing the circumstances concerning appellant's failure to testify"); Benvenuto v. United States,2 No. 01-CV-2642, 2001 WL 1590515 at *4-5 (E.D.N.Y. Nov. 7, 2001) (§ 2255 action; denying, based on trial attorney's letter to the Court, petitioner's claim under Roe v. Flores-Ortega that attorney was ineffective for failing to follow petitioner's instruction to file notice of appeal); Morris v. United States, 99 Civ. 3497, 98 CR. 436, 2000 WL 1459774 at *2 (S.D.N.Y. Sept. 29, 2000) (same); Nix v. United States, 111 F. Supp.2d 186, 189-90 (E.D.N.Y. 2000) (same). The affidavit should include, but not necessarily be limited to, whether counsel consulted with Rodriguez about an appeal, whether Rodriguez indicated an interest in appealing, whether counsel stated that he would file notice of appeal and/or prosecute the appeal, and the substance of any other communications about an appeal.
The Second Circuit has held that a "district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs." Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (per curiam) (§ 2254 action). However, Sparman merely stands for the proposition that "only `in highly unusual circumstances' can the court grant an ineffective assistance of counsel claim in the absence of hearing from counsel." Jolaoso v. United States, 142 F. Supp.2d 306, 308 n. 2 (E.D.N.Y. 2001) (§ 2255 action). "[T]he requirement of inviting a response from counsel does not apply to every one of the voluminous number of claims of ineffective assistance of counsel that come before a district judge, but only to those sufficiently serious that there is a real possibility that the claim may be upheld." Id.
The Court further notes that 28 U.S.C. § 2255, unlike § 2254, requires the district court to hold a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. Accordingly, if an affidavit may suffice to dispose of an ineffective counsel claim in a § 2255 action, then, a fortiori, an affidavit will certainly suffice in a § 2254 action.
In addition, Rodriguez's appointed counsel should submit an affidavit from Rodriguez, by October 28, 2002, on these issues and also on why he filed what he did with the First Department at the time he did and not sooner. After reviewing these affidavits, this Court will determine whether a hearing is necessary.
SO ORDERED.