Opinion
02 Civ. 845 (SHS)(KNF).
July 28, 2004
REPORT AND RECOMMENDATION
TO THE HONORABLE SIDNEY H. STEIN, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is Jose Borrero's ("Borrero" or "petitioner")pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner alleges that his confinement by New York state is unlawful because the state appellate court's denial of his motion for leave to appeal as a poor person from his criminal conviction violated his constitutional rights to due process and equal protection. Respondent opposes the petition on the ground that the petitioner has not shown that he is entitled to habeas corpus relief so as to afford him the right to prosecute his appeal at public expense.
For the reasons set forth below, I recommend that the petition be denied.
II. BACKGROUND
On August 17, 1997, petitioner and a sixteen-year-old accomplice traveled from their home in Harrisburg, Pennsylvania to New York to obtain cocaine for resale in their hometown. After arriving in New York, petitioner and his accomplice traveled to 139th Street and Broadway in Manhattan, where they met a drug dealer known to the petitioner and agreed to pay him $20,500 for a kilogram of cocaine. The dealer, accompanied by two assistants, petitioner and his accomplice went to an apartment on the fourth floor of a nearby building. The dealer, and one of his assistants, then left the apartment for the purpose of procuring the drugs he had offered for sale. Upon his return to the apartment, the petitioner produced a loaded semi-automatic weapon and shot the drug dealer and his assistants, who were unarmed. One of the individuals, who remained in the apartment, was struck twice in the leg. The other two individuals fled onto a fire escape where petitioner shot one five times and the other twice. Petitioner then grabbed the cocaine, reloaded his gun and fled the apartment. Petitioner and his accomplice were apprehended outside the apartment building by police officers who noticed that petitioner was holding a gun.
Petitioner was charged, by New York County Indictment Number 7462/97, with criminal possession of a controlled substance in the first degree, see N.Y. Penal Law § 220.21, three counts of attempted murder in the second degree, see N.Y. Penal Law §§ 110.00; 125.25, robbery in the first degree, see N.Y. Penal Law § 160.15, and criminal possession of a weapon in the second degree, see N.Y. Penal Law § 265.03. The case proceeded to trial before a jury in New York State Supreme Court, New York County. On June 15, 1998, the jury found petitioner guilty on all counts. On July 21, 1998, petitioner was sentenced to concurrent indeterminate terms of imprisonment of fifteen (15) years to life.
Petitioner appealed from the judgment of conviction to the New York State Supreme Court, Appellate Division, First Department. Along with the notice of appeal, petitioner filed a motion seeking leave to prosecute his appeal as a poor person on the original record and type-written briefs, and requesting appointment of appellate counsel and provision of a copy of the stenographic transcript of his trial, without a fee. In his affidavit in support of his motion petitioner averred, inter alia, that he was unable to pay the costs associated with prosecuting an appeal, that he did not own any stocks, bonds, savings or checking accounts, real property, or other assets of value, and that no other person was a beneficiary interested in the outcome of his appeal.
In opposition to petitioner's motion, the prosecution submitted the affirmation of an assistant district attorney for New York County, dated August 27, 1998. In her affirmation, the assistant district attorney stated, inter alia, that her office was in possession of a bill of sale indicating that petitioner owned a house in Harrisburg, Pennsylvania, and argued that petitioner should be required to explain why this asset was not available to him as a means of providing the funds necessary to prosecute his appeal.
By order dated September 29, 1998, the Appellate Division denied petitioner's motion "with leave to renew upon [petitioner's] submission of a notarized affidavit, pursuant to [New York Civil Practice Law and Rules] CPLR § 1101, setting forth facts sufficient to establish that [petitioner] has no funds or assets with which to prosecute [his] appeal, including the amount and sources of his income and listing his property with its value."
Petitioner renewed his request for leave to prosecute his appeal as a poor person by letter dated October 13, 1998. In his letter, petitioner stated that he was unable to afford a lawyer, that he was not the owner of a house in Harrisburg, Pennsylvania, and that his former father-in-law, to whom the house belonged, would provide "all the papers" and explain "everything."
In opposition to petitioner's renewed motion, the prosecution noted that petitioner had failed to comply with the court's previous order insofar as he had submitted an unattested letter, rather than a notarized affidavit, as he was required to do. In addition, the prosecution argued, petitioner did not carry his burden of demonstrating his entitlement to assigned counsel.
By order dated January 5, 1999, the Appellate Division denied petitioner's motion, again with leave to renew upon petitioner's compliance with the conditions set forth in the court's September 29, 1998 order.
Petitioner's third application for leave to prosecute his appeal as a poor person, including a request for a copy of a stenographic transcript of the trial court proceedings, to be furnished without fee, was filed in December 2000. On this occasion, petitioner provided a notarized affidavit in support of his motion in which he averred that he was unable to pay the cost of his appeal because: (1) his only income was the approximately seven dollars ($7.00) that he earned every two weeks in correctional facility wages; (2) he did not own the Harrisburg, Pennsylvania, property and had come to be considered the owner only because he had agreed with a family member, with whom he was no longer closely affiliated, to have his name placed on the property's bill of sale; and (3) he had no additional savings, property, assets, or income. In the alternative, petitioner requested that he be granted poor person status to the limited extent of being permitted to receive a copy of the stenographic transcript of the trial court proceedings on loan, so that he might file his appeal pro se.
The prosecution opposed the motion on the ground that petitioner had not complied with the court's previous order insofar as he had failed to explain why the Harrisburg, Pennsylvania, property or proceeds from the sale of such property, were not available to fund petitioner's perfection of his appeal. By order dated March 20, 2001, the Appellate Division denied petitioner's motion. In addition, the Appellate Division declined to offer petitioner an opportunity to renew his motion.
Nevertheless, petitioner filed a renewed motion in April 2001. In his affidavit in support of his renewed motion, petitioner stated that he would "detail and explain his total financial situation." Accordingly, petitioner provided a copy of his monthly inmate account statements from February 2000 through February 2001, which set forth information about his income and other assets, and also a "statement of facts" concerning his Harrisburg, Pennsylvania, property. Petitioner averred that the property, a three-story building containing five apartments, was given to him as a gift in March 1997. The property was given to petitioner in "as is" condition and required extensive repairs. In addition, the building was occupied by only one tenant, who was paying approximately three hundred dollars ($300.00) per month in rent. Petitioner contended that, because of his incarceration from August 1997 until the present date, he had been unable to effect repairs, collect rent(s) due, or perform other management duties in connection with the property. As a result, petitioner stated, he asked his former father-in-law to manage the property.
The correctional facility inmate statements submitted by petitioner indicate that the amount of his account balance during the relevant period ranged from approximately $3 to approximately $503.
According to petitioner, he had an informal arrangement with his former father-in-law, pursuant to which the latter would oversee the maintenance of the property, pay any taxes due, and attend to the collection of any rental payments, in return for an undetermined percentage of the income generated by the property. Petitioner maintained that his former father-in-law's management of the property was such that it deprived petitioner of control over the property. However, petitioner has received income from the use of the property in the following amounts: (1) five hundred dollars ($500.00) on March 29, 2000, (2) fifty dollars ($50.00) on July 10, 2000, and (3) one hundred dollars ($100.00) on an unspecified date.
Petitioner averred, moreover, that his incarceration prevented him from selling the property, that even if he were permitted to sell the property there was no guarantee that he would be able to conclude such a sale, and that, although the property had not been appraised, he believed its value to be between $30,000 and $40,000. Furthermore, petitioner maintained, any proceeds from the sale of the property would be reduced by the amount necessary to compensate his former father-in-law for his management of the property, and, in addition, his incarceration prevented him from securing a loan or mortgage on the property. Petitioner also maintained that, since the trial court had assigned him an attorney pursuant to New York County Law Article 18(B), and his financial circumstances had not changed in the interim, the Appellate Division's denial of his motion for poor person relief was a violation of his right to equal protection of the law.
Petitioner stated in his affidavit that he had been assigned counsel pursuant to "Judiciary Law § 18(b)." However, the Court understands petitioner to mean that he was assigned counsel pursuant to Article 18-B of the New York County Law (New York County Law § 722). See, e.g., New York County Lawyers' Assoc. v. State of New York, 196 Misc.2d 761, 765 n. 4, 763 N.Y.S.2d 397, 401 n. 4 (Sup.Ct., N.Y. Cty. 2003).
The prosecution opposed the motion on the ground that petitioner again had failed to explain why his incarceration prevented him from selling his property so that he might obtain funds thereby to pay for appellate counsel and a copy of the trial transcript. By order dated June 5, 2001, the Appellate Division denied petitioner's motion, stating that he had "failed to demonstrate that he is without the ability to generate the funds necessary to prosecute the aforesaid appeal."
On July 19, 2001 petitioner filed an application with the Appellate Division seeking leave to reargue his motion to proceed as a poor person or, alternatively, leave to appeal to the New York Court of Appeals. Along with his affidavit in support of his motion, petitioner submitted a copy of State of New York Department of Correctional Services ("DOCS") Directive No. 2798, which provides, inter alia, "[i]nmates will not be allowed to open any type of outside account including, but not limited to, checking, savings, stock, mutual fund, money market certificate, certificate of deposit or 'in trust for' accounts." According to the petitioner, the prohibition on opening an outside financial account, which is imposed on state prisoners by DOCS, prevented him from converting his Harrisburg, Pennsylvania, property into funds with which he might prosecute his appeal. In addition, petitioner contended, for the first time, that his appointed trial counsel failed properly and timely to make an application to the Appellate Division for poor person relief on petitioner's behalf.
The prosecution opposed petitioner's motion. By order dated September 6, 2001, petitioner's motion was denied by the Appellate Division.
The instant application for a writ of habeas corpus followed. In his petition, Borrero claims that the Appellate Division's denial of his motion to appeal as a poor person is a violation of his constitutional rights to due process and equal protection. Specifically, according to petitioner, although he owns real property in Harrisburg, Pennsylvania, he cannot sell or otherwise dispose of the property because: (a) since the property is not in New York state, a trustee cannot be appointed to "take charge" of it, pursuant to New York Correction Law § 350; (b) he is barred from entering into any business transactions; and (c) he is barred from opening "any outside bank accounts." Additionally, petitioner argues, since he was assigned counsel at trial, "absent a new or dramatic change in [his] financial status," he is entitled to assigned counsel on appeal. Petitioner's appeal is still pending in the Appellate Division, First Department. Petitioner asks, in effect, that the Appellate Division be directed to grant his application for leave to prosecute his appeal as a poor person.
III. DISCUSSION
A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which amended 28 U.S.C. § 2254(d), a writ of habeas corpus may issue only if the state adjudication on the merits of the petitioner's claim
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000).
A state court decision is "contrary to" clearly established Supreme Court precedent if "the state court applies a rule that contradicts" Supreme Court precedent or if "the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [that] precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. at 1519-20. A state court decision involves an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case."Id. at 407-08, 1520-21. A federal habeas court applying the "unreasonable application" standard should ask whether the state court's application of Supreme Court precedent was "objectively unreasonable" and not merely an incorrect or erroneous application of federal law. Id. at 409, 1521; see also Francis S., 221 F.3d at 111 (holding that to permit habeas relief under an "unreasonable application" standard, more is required than an incorrect application of federal law, although the "increment of incorrectness" need not be great).
In addition, when considering an application for a writ of habeas corpus by a state prisoner, a federal court must be mindful that any determination of a factual issue made by a state court is to be presumed correct and the habeas corpus applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
B. Jurisdiction
A federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In this case, petitioner is in custody because of his conviction for state criminal offenses. Moreover, he has not claimed a constitutional error in his trial proceeding, and his request for relief is not release from custody but an order directing the state court to grant his motion for leave to prosecute his appeal as a poor person. Therefore, the court must determine whether it has jurisdiction to entertain Borrero's petition for a writ of habeas corpus.See Fullan v. Comm'r of Corrections, 891 F.2d 1007, 1010 (2d Cir. 1989).
"For an appeal to be placed on the calendar in the First Department, the record on appeal must first be filed [and] it must include the corrected and certified transcript." Ramirez v. Stevens, No. 87 Civ. 6216, 1990 WL 41725, at *4 (S.D.N.Y. Apr. 4, 1990) (citing Appellate Division, First Department Rule 11[a][1]; 22 NYCRR § 600.11[a][1]); see also Fullan, 891 F.2d at 1010 (finding that in the Appellate Division, Second Department, "in virtually all cases . . . a transcript must be filed in order even to docket an appeal to that court"). Consequently, Borrero cannot perfect his appeal without filing a trial transcript; however, the state court has denied his request for a free transcript — as he claims, improperly. Thus, given the combined effect of the Appellate Division, First Department's rules preventing him from appealing without filing a transcript and its decision to deny his request for a free transcript, Borrero is in custody within the meaning of 28 U.S.C. § 2254(a).See Fullan, 891 F.2d at 1010; Ramirez, 1990 WL 41725, at *4. Accordingly, this court has jurisdiction to reach the merits of petitioner's claim that the state's denial of his application for leave to prosecute his appeal as a poor person is in violation of his rights to due process and equal protection.
C. Exhaustion
Before a federal court may entertain a habeas corpus petition on behalf of a state prisoner, the petitioner must first exhaust his or her available state remedies. See 28 U.S.C. § 2254(b) and (c). To satisfy the exhaustion doctrine, a habeas corpus petitioner must meet a two-prong test. First, the petitioner must "fairly present" his or her federal claim to the highest state court from which a decision can be rendered. Daye v. Attorney General of New York, 696 F.2d 186, 190-191 n. 3 (2d Cir. 1982) (en banc). A claim is "fairly presented" if the state courts are informed of "both the factual and the legal premises of the claim [asserted] in federal court." Id. at 191.
In addition, "having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim." Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981) (citations omitted);see also Nelson v. Walker, No. CV-94-1702, 1996 WL 148321, at *5 (E.D.N.Y. Mar. 20, 1996) (petitioner must utilize all available avenues of appellate review within the state court system, either by direct appeal or collateral attack) aff'd 121 F.3d 828 (2d Cir. 1997).
Petitioner has satisfied both elements of the exhaustion requirement. Petitioner "fairly presented" the factual and legal premises of his federal constitutional claim to the appropriate state court. In his affidavits and other documents submitted in support of his motions for leave to prosecute his appeal as a poor person, petitioner set forth the facts on which he based his claim of indigence. Furthermore, petitioner also informed the appropriate state court that the denial of his application for poor person relief deprived him of his Fifth Amendment right to due process and his Fourteenth Amendment right to equal protection under the law. Moreover, petitioner availed himself of all the avenues open to him to secure state appellate review of the denial of his application to prosecute his appeal as a poor person by seeking leave to appeal to the New York Court of Appeals. Therefore, petitioner has fully presented his claim to the state courts by all available means.
D. Right to Proceed as a Poor Person
Although the United States Constitution "does not require states to grant appeals as of right to criminal defendants seeking to review alleged trial court errors," when a state has created a right of appeal, "the procedures used in deciding appeals must comport with the Due Process and Equal Protection Clauses of the Constitution." Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834 (1985) (citations omitted). Specifically, among other things, when a state does grant appellate review, it may not do so "in a way that discriminates against some convicted defendants on account of their poverty."Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590 (1956). Consequently, "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy [trial] transcripts." Id. at 19, 591; see also Fullan, 891 F.2d at 1010 ("As a general matter, differences in access to the instruments needed to vindicate legal rights, when based upon the financial situation of the defendant, are repugnant to the Constitution. . . . [and] [a] trial transcript may be such an instrument.") (citations omitted).
Under New York law, a defendant has an absolute and fundamental right to appeal a criminal conviction. See People v. Harrison, 85 N.Y.2d 794, 796, 628 N.Y.S.2d 939, 939 (1995) (citing People v. Montgomery, 24 N.Y.2d 130, 132, 299 N.Y.S.2d 156); see also People v. Rivera, 39 N.Y.2d 519, 522, 384 N.Y.S.2d 726, 728 (1976); New York Criminal Procedure Law ("CPL") § 450.10. Thus, the denial of the right to appeal a conviction constitutes "a failure of due process."Rivera, 39 N.Y.2d at 522, 384 N.Y.S.2d at 728 (citing Griffin, 351 U.S. at 18-19, 76 S.Ct. at 590-591). Furthermore, where the denial of a right to appeal comes about because of a criminal defendant's indigence, it constitutes the denial of equal protection as well. Id.
Whether a petitioner's constitutional rights were violated by the denial of an application for leave to proceed as a poor person depends on whether the petitioner is in fact indigent.See Ramirez, 1990 WL 41725, at *5; Sokol v. Coombe, No. 94 Civ 7168, 1995 WL 301349, at *1 (S.D.N.Y. May 16, 1995). A determination of indigence involves consideration of two factors: (1) the petitioner's financial condition at the time the application for leave to proceed as a poor person is made; and (2) the petitioner's control over any funds the prosecution claims are available for the prosecution of an appeal. See Ramirez, 1990 WL 41725, at *6.
Under New York law, a petitioner seeking leave to proceed as a poor person must:
file an affidavit setting forth the amount and sources of his or her income and listing his or her property with its value; that he or she is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses.
In this case, Borrero has not met his burden of establishing that he is indigent. Although Borrero initially denied having any real property or assets of value with which to pay the costs of his appeal, the prosecution presented contradictory evidence, namely, a bill of sale, indicating that Borrero was the record owner of an apartment building in Harrisburg, Pennsylvania. Thereafter, at the time he filed his fourth motion for leave to proceed as a poor person, Borrero admitted that: (i) he owned the Harrisburg, Pennsylvania, property; (ii) the property generated $300 per month in rental income; (iii) he had previously received income from the property; and (iv) the property's estimated value was $30,000 to $40,000. Consequently, although Borrero's income in the form of correctional facility wages is only about $14 per month, and while he may not have other savings or assets apart from his real property, Borrero has not shown that, if the relief he seeks is not granted to him, "he [will] in effect be precluded from access to the courts." Lancer v. Lancer, 70 Misc.2d 1045, 1049, 335 N.Y.S.2d 138, 142 (Sup.Ct. Nassau Cty. 1972). See also People v. Yui Kong Yu, 158 A.D.2d 370, 372, 551 N.Y.S.2d 224, 225 (App.Div. 1st Dep't 1990) (finding, where documentation was inadequate to establish indigence, that if, for example, "defendant's tax returns reveal he owns a house . . . a serious question would arise concerning his alleged indigency status, requiring at the very least an explanation"); but see Sokol, 1995 WL 301349, at *2 (finding from the evidence that habeas corpus petitioner did not have the financial means to pay for appellate counsel or a transcript where petitioner had no assets and wife paid attorney's fees out of her own salary).
Moreover, Borrero has not met his burden of establishing that he has no control over the funds which, according to the prosecution, are available to pay for the costs of his appeal. As noted above, petitioner has conceded that he owns property in Harrisburg, Pennsylvania. However, although petitioner contends that he cannot sell or otherwise dispose of his property, he has failed to substantiate this claim. See Kelly v. Jackson, No. 93 Civ. 7260, 1993 WL 515835, at *1 (S.D.N.Y. Dec. 8, 1993) ("In order to obtain relief in this court, [habeas corpus] petitioner must furnish . . . unequivocally complete financial evidence showing inability to pay for the transcript of her criminal trial. . . .").
According to the petitioner, he is prevented from disposing of his property because: (a) since the property is not in New York state, a trustee cannot be appointed to "take charge" of it, pursuant to New York Correction Law § 350; (b) he is barred from entering into any business transactions; (c) his former father-in-law's management of the property has deprived him of control over it; and (d) he is prohibited by DOCS regulations from opening an outside checking or other financial account. Petitioner also maintains that because he was assigned counsel at the time of his trial, and his financial circumstances have not changed in the interim, he is entitled to the appointment of counsel on appeal.
None of these arguments is availing. New York Correction Law § 350 provides, in pertinent part:
Where a person is imprisoned in a state prison, for a term less than for life . . . one or more trustees, to take charge of his property, may be appointed . . . by the county court of the county, or the supreme court in the judicial district, where he resided at the time of his imprisonment, or if he was not then a resident of the state, where he is imprisoned.
Contrary to petitioner's assertion, this provision of the Correction Law does not prohibit the appointment of a trustee(s) to take charge of a property based on the property's location. Moreover, although petitioner was not a New York resident at the time of his imprisonment, one or more trustees may be appointed by the appropriate court of the county or judicial district where he is imprisoned.
Additionally, petitioner has not shown that he is barred from entering into a business transaction involving the sale of his property or, alternatively, from bringing about the sale of his property through a designated agent. Since petitioner apparently does not lack the authority to enter into a legal relationship with, for example, a prospective purchaser, for the purpose of disposing of his real property, he does not lack the capacity to authorize an agent to enter into such a legal relationship on his behalf. See United States v. Craig, 896 F. Supp. 85, 89 (N.D.N.Y. 1995) (citing Restatement [Second] of Agency § 20;Miner v. New York State Dep't of Correctional Servs., 125 Misc.2d 594, 596, 479 N.Y.S.2d 703, 704 [Sup. Ct., Dutchess Cty. 1984]aff'd 70 N.Y.2d 909, 524 N.Y.S.2d 390).
Moreover, petitioner has adduced no evidence in support of his claim that his former father-in-law's management of the property has deprived him of control over it. Additionally, although petitioner is prohibited from opening an outside checking or other financial account, there does not appear to be any reason why he may not transfer the proceeds of the sale or other disposition of his property to his existing inmate account, thus making any funds obtained available for the perfection of his appeal.
Furthermore, petitioner's claim that, because he was assigned counsel by the trial court, he is entitled to proceed as a poor person on appeal, is not persuasive in light of petitioner's own statements concerning his financial position. Cf. Benyi v. Broome County Sheriff's Dep't, 158 A.D.2d 869, 870, 551 N.Y.S.2d 662, 663 (App.Div. 3rd Dep't 1990) (finding that the averments, taken together, of petitioner who stated, inter alia, that he had been granted poor person status in prior criminal proceeding, established prima facie case of indigence in light of state's failure to oppose the application). Therefore, based on a review of the evidence in this case, the Court finds that petitioner has not established that he does not have the financial means to pay for appellate counsel or for a trial transcript.
As noted above, the standard of review set forth in the federal habeas corpus statute is limited to claims that were "adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). "A state court 'adjudicates' a petitioner's federal constitutional claims 'on the merits' when 'it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment.'" Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 [2d Cir. 2001]). The Second Circuit has "given a broad reading to state court dispositions, noting that '[a] state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.'"Id. (quoting Aparicio v. Artuz, 269 F.3d 78, 93-94 [2d Cir. 2001]). In fact, an issue raised may be considered adjudicated on its merits "even when the state court does not specifically mention the claim but uses general language referable to the merits." Id.
In this case, petitioner's claim was adjudicated on the merits by the Appellate Division. In disposing of petitioner's third motion for leave to appeal as a poor person, the Appellate Division ordered that the motion be denied. See Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."). In support of his motion, petitioner had submitted a notarized affidavit pursuant to CPLR § 1101, thereby complying with the relevant procedural requirements as well as the court's previous order. In support of his fourth motion, petitioner submitted additional documentation, including a notarized affidavit explaining his financial circumstances. In disposing of that motion, the Appellate Division stated that "[d]efendant has failed to demonstrate that he is without the ability to generate the funds necessary to prosecute the aforesaid appeal," thus indicating that its decision was based on an assessment of the merits of petitioner's application, rather than on a state law procedural ground.
In its fifth and final decision in this matter, the Appellate Division, referring to its previous orders, directed that petitioner's motion for leave to prosecute his appeal as a poor person be "denied in its entirety."
Furthermore, the Court finds that the Appellate Division, in reviewing petitioner's motion, applied the general principles set forth in Griffin and Evitts concerning a criminal defendant's right to appeal from a conviction, and the constitutional rights implicated by the denial of the right to appeal, when such a denial is based on a defendant's indigence. Since the Appellate Division's determination, on the merits, of petitioner's claim was neither contrary to nor involved an unreasonable application of clearly established Federal law, there is no basis upon which to grant petitioner habeas corpus relief on this claim.
Similarly, because the Court finds that the Appellate Division's adjudication did not result in a decision that was premised on an unreasonable determination of the facts in light of the evidence presented in connection with petitioner's motions for leave to proceed as a poor person, petitioner's claim that he is entitled to habeas corpus relief because the Appellate Division's denial of those motions violated his rights to due process and equal protection is without merit. Furthermore, petitioner did not meet his burden of rebutting, by clear and convincing evidence, the presumption of correctness accorded to the Appellate Division's determination that petitioner failed to demonstrate his status as a poor person, pursuant to CPLR § 1101. Accordingly, the claim should be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petitioner's application for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of the Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, United States District Judge, 500 Pearl Street, Room 1010, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Stein. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985);IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Candair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1998); McCarthy v. Manson, 714 F.2d 234, 237-238 (2d Cir. 1983).