Opinion
00 Civ. 3070 (AKH)
April 16, 2002
ORDER DENYING PETITION
Petitioner Lids A. Vanzquez 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 Vazguez 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.
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.
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 U.S. 514, 530 (1972); Elcock I, 947 F.2d at 1007 (Barker framework applicable to claims of appellate delay). In applying theBarker 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 actor 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.
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 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.
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 inElcock 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.
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 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.
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. § 5OO.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 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. 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.
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.
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.