Opinion
00-CV-5444 (JBW), 03-MISC-0066 (JBW)
June 5, 2003
MEMORANDUM ORDER
No hearing in this matter is necessary. The following memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner pled guilty on February 2, 1995, to second degree criminal sale of a controlled substance. As part of the bargained-for disposition, petitioner was to receive a sentence of 5 years to life in prison. As part of the plea bargain he waived his right to an appeal. See Plea Tr. at 3, 10. Petitioner was informed by the court that the bargained-for sentence was dependent, inter alia, on his returning to court on the date set for sentencing.
Petitioner failed to appear for sentencing. Two years later he was rearrested and sentenced, pursuant to his plea, to 7 years to life in prison. Notwithstanding petitioner's waiver of his right to appeal, at the close of the sentencing hearing the clerk informed petitioner that he had a right to appeal and that a notice of appeal would have to be filed within 30 days.
A notice of appeal was filed with the Appellate Division on petitioner's behalf by Charles M. Newell, Esq., within the 30-day window. Petitioner's appeal was never perfected, and approximately 19 months later the Appellate Division dismissed the appeal.
Petitioner claims that he does not know who Mr. Newell is and did not know that Mr. Newell had filed a notice of appeal on his behalf until he was notified of the dismissal. He claims that he attempted to call his retained lawyer, George M. Harmel, Jr., several times but was never allowed to speak with him. He states that Mr. Newell is not a member of Mr. Harmel's firm. Petitioner also avers that repeated letters to Messrs. Newell and Harmel have never been answered.
Petitioner filed a motion for reargument and reconsideration with the Appellate Division. The motion was denied. Leave to appeal this decision was denied by the New York Court of Appeals.
In the instant application, petitioner seeks a writ of habeas corpus that might allow him to pursue an appeal in state court. Liberally construing his petition, he claims (1) that he has been denied his due process and equal protection rights because he was not afforded a meaningful opportunity to appeal his conviction and sentence, as guaranteed by the state; and (2) that his appellate counsel was ineffective for failing to inform him that a notice of appeal had been filed, for failing to perfect the appeal, and for failing to raise a claim of ineffective assistance of trial counsel based on trial counsel's coercion of petitioner to plead guilty.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254 (e)(1).
III. Exhaustion
Formerly, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
Ineffective assistance of trial counsel may be cause for a procedural default, but this claim must be presented to a state court before it can be heard on habeas. In turn a procedurally defaulted ineffective assistance of trial counsel claim may be excused by a showing ineffective assistance of appellate counsel, but such a claim must itself be presented to the state courts before it receives federal habeas review. See Murray v. Carrier, 477 U.S. 478, 488-89 (1986).
This memorandum complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003). and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
V. Petitioner's Claims
Petitioner's first claim is that he was denied due process and equal protection of the law because he was not afforded a meaningful opportunity to appeal his conviction and sentence. It would appear that petitioner has exhausted this claim, because in his "Motion for Reconsideration to Reinstate Appeal" before the Appellate Division he cited both the New York and Federal Constitutions when arguing that his right to appeal had been abridged. The motion was denied. Leave to appeal to the New York Court of Appeals was dismissed because no application for leave to appeal lies from an order of the Appellate Division denying a motion to vacate a prior order of that court.
Petitioner's second claim is that he was denied the effective assistance of appellate counsel, mainly as a result of counsel's failure to perfect an appeal. This claim has never been presented to any state court. Because the claim is not demonstrably meritless, a state court should address it, if possible under the state's procedural laws, before a federal court does so.
VI. Conclusion
This case is stayed to permit petitioner to exhaust whatever remedies he may have in the state courts.
The clerk of the court is order to administratively close this case unless or until either of the parties moves to restore the matter.
Petitioner is warned that he may be barred from reopening his federal habeas petition on statute of limitations or other grounds if he delays in initiating collateral proceedings in state court or if, having been denied relief in state court, he delays in seeking to reopen these federal proceedings.
Respondent may move, on notice to petitioner, to vacate the stay entered herein and to dismiss the petition for failure to prosecute or on other grounds.
SO ORDERED.