Summary
In Jones v. Spitzer, No. 01CIV.9754, 2002 WL 737649 (S.D.N.Y. Apr. 26, 2002), the court was faced with a federal habeas petition in which the petitioner had similarly failed to exhaust a claim alleging ineffective assistance of appellate counsel.
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01 Civ. 9754 (HB) (GWG).
April 26, 2002
REPORT AND RECOMMENDATION
This petition for writ of habeas corpus has been brought pro se by the petitioner Charles Jones.
BACKGROUND
Jones' State Court Conviction
Jones was convicted after a jury trial of Burglary in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree and Criminal Possession of a Weapon in the Fourth Degree. On April 6, 1994, a judgment of conviction was entered in the Supreme Court, New York County. Jones was sentenced to concurrent sentences of 1-1/2 to 4-1/2 years for the burglary conviction, 1 to 3 years for the stolen property conviction and 1 year for the weapons possession conviction. On May 9, 1996, his conviction was affirmed by the Appellate Division, First Department. People v. Jones, 227 A.D.2d 195 (1st Dep't 1996). The New York Court of Appeals subsequently denied his application for leave to appeal. People v. Jones, 88 N.Y.2d 937 (1996).
On September 19, 1996, the District Court for the Southern District of New York granted Jones' petition for a writ of habeas corpus and directed that he be retried. Jones v. Vacco, 1996 WL 535544 (S.D.N.Y. September 19, 1996). The Court of Appeals for the Second Circuit affirmed the grant of Jones' habeas petition on October 2, 1997. Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997).
After his re-trial by a jury, Jones was found guilty of Burglary in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree; he was acquitted of the charge of Criminal Possession of Stolen Property in the Fourth Degree. A judgment of conviction was entered against him on June 11, 1999. Jones was sentenced to 1-1/2 to 4-1/2 years for the burglary conviction and to time served for the weapons possession conviction. See People v. Jones, 281 A.D.2d 283 (2001).
State Court Direct Appeal
The First Department assigned Steven Feldman, Esq., to represent Jones in the direct appeal of his 1999 conviction. See Amended Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus By a Person in State Custody, dated November 26, 2001 ("Amended Petition"), Exhibit 2. On April 26, 2000, Feldman filed an appellate brief on Jones' behalf. See id., Exhibit F. On April 28, 2000, Jones moved, pro se, for an order to strike his lawyer's brief and to direct his lawyer to file a new brief, or, in the alternative, for permission to file a pro se supplemental brief. See Reply Declaration of Petitioner Charles Jones in 1) Opposition to Stay and 2) For Sanctions Precluding Respondent from Interposing any Further Answer, dated April 1, 2002 ("Reply Declaration"), Exhibit M. On June 8, 2000, the Appellate Division denied Jones' motion. See Amended Petition, Exhibit 2. On June 16, 2000, Jones submitted a pro se supplemental brief and moved for reconsideration of his earlier motion. See id., Exhibit D. The brief raised 14 points, none of which explicitly addressed a claim of ineffective assistance of appellate counsel. Attached to this brief were a number of letters Jones had written to his appellate counsel. See id., Exhibit 1. The First Department accepted this supplemental brief on July 27, 2000. See id., Exhibit 2. On January 21, 2001, the People filed their appellate brief. Jones then filed a reply brief addressing arguments made both in the counseled and pro se briefs. Amended Petition, Exhibit E. While the reply brief bears his attorney's name on the cover page, it is signed by Jones himself and was apparently prepared by Jones alone. See Reply Declaration, Conclusion Section (unnumbered pages), Exhibit A-2; Amended Petition, Exhibit E. On March 21, 2001, the First Department affirmed Jones' conviction. People v. Jones, 281 A.D.2d 283 (1999).
In a letter dated April 9, 2001, Jones, appearing pro se, made an application for leave to appeal to the New York Court of Appeals. See Reply Declaration, Exhibit O. On May 23, 2001, the Court of Appeals denied his application for leave to appeal. People v. Jones, 96 N.Y.2d 831 (2001). His request for reconsideration was denied on July 16, 2001. People v. Jones, 96 N.Y.2d 903 (2001).
The Instant Petition
On November 6, 2001, Jones filed this petition for writ of habeas corpus. On November 29, 2001, Jones amended his petition. In the Amended Petition, Jones lists 16 grounds for relief, designated as Grounds A-P. See Amended Declaration of Charles Jones in Support of Amended Petition for Writ of Habeas Corpus, dated November 26, 2001, annexed to Amended Petition, dated November 26, 2001 ("Amended Declaration"), unnumbered pages. Ground O asserts that Jones was deprived of his constitutional right to effective assistance of appellate counsel. Id.
In response, the respondent submitted a Memorandum of Law in Support of Motion to Dismiss an Unexhausted Claim and to Stay the Proceedings as to the Other Claims, filed March 28, 2002 ("Respondent's Brief"), arguing that Jones has presented an unexhausted claim to this Court: specifically, his claim of ineffective assistance of appellate counsel. The respondent asks that Jones' ineffective assistance claim be dismissed and that Jones' remaining claims (with respect to which respondent does not contest exhaustion) be stayed while Jones exhausts his ineffective assistance claim in the state courts. Respondent's Brief at 6-10.
DISCUSSION
The Exhaustion Requirement
Under 28 U.S.C. § 2254(b)(1)(A), a claim presented to a federal habeas court must first be exhausted in the courts of the State. See, e.g., Daye v. Attorney Gen., 696 F.2d 186, 190 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). In order for a claim to be deemed exhausted, a petitioner is required to have presented the same claim he presents in his habeas petition to each level of the state courts to which the right to appeal lies. See, e.g., Picard v. Connor, 404 U.S. 270, 275-76 (1971); Daye, 696 F.2d at 191. Petitioners must also have "fairly presented" the constitutional nature of their claims to the state courts. Daye, 696 F.2d at 191. Petitioners may fairly present their federal claims in state court by, inter alia, presenting explicit constitutional arguments, relying on federal and state cases that employ a constitutional analysis, asserting claims in such a way as to call to mind a specific right protected by the Constitution or alleging facts that fall within the mainstream of constitutional analysis. Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995) (citations omitted), cert. denied, 520 U.S. 1106 (1997); Daye, 696 F.2d at 194.
Jones' Raising of the Ineffective Assistance of Appellate Counsel Claim
New York State law provides a specific procedure for raising a claim of ineffective assistance of appellate counsel: the writ of error coram nobis, which is filed in the Appellate Division following the appeal. See generally Taylor v. Scully, 674 F. Supp. 462, 463 (S.D.N Y 1987); People v. Vincent, 50 N.Y.2d 901, 904-905 (1980). Indeed, it is not surprising that such a procedure exists because it would be logically absurd for an ineffective assistance of appellate counsel argument to be raised at the same time the appeal is being prosecuted. After all, if the party were able to discern that ineffective assistance was being given during the appeal, then the party presumably could cure the alleged error on the spot.
Nonetheless, Jones insists that he raised the issue before the Appellate Division at the time of the prosecution of his direct appeal. He does not dispute that the point headings in both his counseled and his pro se briefs to the Appellate Division make no reference to any claim of ineffective assistance of appellate counsel. Jones notes, however, that his own pro se appellate brief on its first page makes reference to the numerous letters to his appellate counsel appended to that brief (and, proleptically, makes reference to the federal habeas exhaustion requirement). See Reply Declaration, section I(a); Exhibit A-1. These letters contain various demands that Jones made to his appellate counsel concerning the contents of his appellate brief as well as numerous complaints Jones made to his appellate counsel during the course of his counsel's prosecution of the appeal. See id. at section I(a)-(e) and Exhibits A-L. Jones also notes that he submitted a pro se Reply Brief that contained his complaint that the Appellate Division had denied him a complete record on appeal by denying his motions to strike the appellate brief filed by his appellate counsel, to compel appellate counsel to address other issues identified by Jones and to discharge counsel for his failure to address these issues. See id. at I(e) and (h). Jones also points to his motion to the Appellate Division seeking to have the appellate brief filed by his appellate counsel stricken, to compel appellate counsel to address other issues as identified by Jones and to discharge counsel for his failure to address these issues. See id. at I(f) and (g).
Jones also makes reference to the fact that he complained of the ineffective assistance of his appellate counsel in his motion for leave to appeal to the Court of Appeals. This is irrelevant, however, because the exhaustion requirement means that a claim must be raised at "each level" of the state court system and not initially in that State's highest court. A writ of coram nobis cannot be initiated in the Court of Appeals. See People v. Claudio, 77 N.Y.2d 899 (1991). Thus, an ineffective assistance of appellate counsel claim is unexhausted where a petitioner "raise[s] his ineffective assistance claim by an improper means and in the wrong court" by presenting his ineffective assistance of counsel claim for the first time in an application for leave to appeal to the Court of Appeals. Bond v. Walker, 68 F. Supp.2d 287, 295 (S.D.N.Y. 1999).
The Court rejects Jones' argument that he raised a claim of constitutionally ineffective assistance of appellate counsel through these means. For such a claim to be "fairly presented," the court must be made aware that it is being raised as a claim at all. Here, Jones' counseled initial brief argued a single point under a single heading. See Amended Petition, Exhibit F. Jones' pro se brief raised 14 other distinct points under 14 clearly-labeled headings. See id., Exhibit D. None of the headings made any mention of ineffective assistance of appellate counsel. While some of Jones' papers contain references to his complaints about his counsel's initial brief, see, e.g., Amended Petition, Exhibit E, at 8, these complaints are presented in a fact section and without any explanation of their legal bases. The only claims regarding ineffective assistance of counsel relate to Jones' trial counsel. See Amended Petition, Exhibit D at Point I, unnumbered pages, Point X, unnumbered pages; Amended Petition, Exhibit F at 43-51. Thus, the Appellate Division was in no way alerted to the fact that Jones was presenting a distinct claim of ineffective assistance of appellate counsel.
Even if Jones' briefs could be construed to have alerted the Appellate Division to his argument regarding the alleged ineffectiveness of his appellate counsel, the claim would still be unexhausted because of Jones' failure to file a petition for a writ of coram nobis with the Appellate Division. Under New York law, a petition for a writ of coram nobis is the only means by which Jones could have presented an ineffective assistance of appellate counsel claim. See, e.g., People v. Bachert, 69 N.Y.2d 593, 595-96 (1987) ("a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel"); Garcia v. Scully, 907 F. Supp. 700, 706-707 (S.D.N.Y. 1995) ("The issue of whether appellate counsel was ineffective . . . must be presented to the Appellate Division. The only procedure in New York for doing so is an application for a writ of error coram nobis to the Appellate Division department that confirmed the conviction."). Jones' failure to avail himself of this remedy means that he has not "exhausted the remedies available in the courts of the State," 28 U.S.C. § 2254(b)(1)(A), thereby barring federal review of the claim.
Treatment of Mixed Petitions
Where a petition contains both exhausted and unexhausted claims (commonly referred to as a "mixed" petition), this Court has discretion either (1) to dismiss the entire petition without prejudice to renewal after exhaustion of state court remedies or (2) to dismiss only the unexhausted claims and stay the exhausted claims contained in the petition with a requirement that the petitioner promptly pursue state court remedies and return to federal court. Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001).
A dismissal of the entire petition without prejudice, however, may result in any newly filed petition being dismissed because the time during which the petition was pending in federal court would not toll the statute of limitations under 28 U.S.C. § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 175 (2001). Thus, the Second Circuit has made clear that if "an outright dismissal could jeopardize the timeliness of a collateral attack," the Court must stay the petition. Zarvela, 254 F.3d at 380 (citation and internal quotation marks omitted).
In the present case, Jones' time to bring his exhausted claims will expire on October 14, 2002, one year plus ninety days after the Court of Appeals denied his application for leave to appeal. See Smith v. McGinnis, 208 F.3d 13, 15 n. 1 (2d Cir.), cert. denied, 531 U.S. 840 (2000). In order to avoid the possibility that Jones' pursuit of state remedies "could jeopardize the timeliness" of Jones' habeas petition, this Court should stay habeas proceedings pending Jones' pursuit of his unexhausted claim in state court. Thus, the Court should stay Jones' already exhausted claims, contained in Grounds A-N and Ground P of the Amended Petition, pending his exhaustion of state remedies as to his ineffective assistance of appellate counsel claim in Ground O.
In Jones' Reply Declaration, Jones states that "any `stay' of these proceedings would be to the significant prejudice of the petitioner, and petitioner would rather simply proceed on the other issues than suffer the further abusive tactics of [counsel for respondent], if the Court so elects." Reply Declaration, Conclusion section, unnumbered paragraphs. Because it is not clear that Jones fully understands the consequences of a voluntary withdrawal of his ineffective assistance of appellate counsel claim, and because Jones appears to have amended his habeas petition for the very purpose of including this claim, the Court will not consider it withdrawn unless Jones makes a further application to this Court specifically and unconditionally withdrawing this claim. If Jones wishes to withdraw his unexhausted ineffective assistance of appellate counsel claim, he may so inform the Court in an affidavit or declaration under oath filed within 30 days of the entry of an order ruling on this matter. The Court will thereupon consider only the exhausted claims, Grounds A-N and Ground P, and Jones will forfeit any federal court review of his ineffective assistance of appellate counsel claim, now or in the future.
CONCLUSION
Jones' ineffective assistance of appellate counsel claim should be dismissed to permit Jones to pursue his available state court remedies for that claim. This case, consisting of the remaining claims, should then be stayed on the following two conditions:
1. Within 30 days of entry of the Order ruling on this matter, Jones must file a petition for a writ of coram nobis before the Appellate Division, First Department;
2. Within 30 days following a decision by the Appellate Division on Jones' petition for a writ of coram nobis, Jones must file an affidavit or declaration in this habeas case stating that his petition for a writ of coram nobis has been disposed of and that he wishes to terminate the stay of this case.
Failure to comply with either deadline will result in the entire petition being dismissed. See Zarvela, 254 F.3d at 381.