Opinion
04CV1263(SLT).
December 21, 2004
MEMORANDUM ORDER DENYING PETITION
The petition for a writ of habeas corpus is denied. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
On September 25, 2001, Ernest Curry ("Curry" or "Petitioner") was convicted in Nassau County of robbery in the second degree, robbery in the third degree and grand larceny in the fourth degree. (Lapera, J.) At sentencing, the following exchange occurred between Petitioner's father and the trial judge:
Petitioner's father: He's not — if you check his record, he's not in the mental state of mind to take on this responsibility for hisself [ sic], and I explained that to [defense counsel], and, I don't know. He don't [ sic] know. He can't even speak for hisself [ sic]. He can't speak to me so —
The Court: I understand that, sir. I read the report, and there's no way I'm going to give him 15 years. There's no way.
Petitioner's father: I'm not saying that he shouldn't be in the situation he's in right now. He
The Court: Okay. All right. Thank you very much. I appreciate it. (Appx. 142.)
The Court has not been provided with a copy of this report. The Respondent also appears to not have a copy of this report. (Appx. 81 n. 3.) On October 29, 2004, Petitioner filed with this Court what may be part of this report. (Pet. "Motion to Compel" Ex. 2)
The judge explained to the Petitioner that, pursuant to an order of protection, he was not to approach the victim and then said the following:
The Court: I've read the probation report, and I've watched the defendant's demeanor during the course of the trial, and the report indicates that he may be paranoid schizophrenic. After the trial, I even decided at that time that the defendant was not going to get the maximum. Okay? (Appx. 143.)
Petitioner was then sentenced to a five-year term of imprisonment, in addition to a $1000 fine, $200 surcharge, $10 "crime victim fee" and $254 in restitution for the second degree robbery conviction and time served for the remaining convictions.
Direct Appeal
Petitioner was represented by counsel on appeal who argued two grounds: "The People's evidence at trial was legally insufficient to establish that the complainant suffered `physical injury' within the legal meaning of that term;" and that "[Petitioner's] third-degree robbery conviction at least, if not also his fourth-degree grand larceny conviction, must be vacated as an `inclusory concurrent count' of his second-degree robbery conviction." (Def. Mem. of Law to App. Div. available at Appx. 1-37.)
On February 18, 2003, the Appellate Division modified the judgment of the Nassau County Court, reversing the conviction for robbery in the third degree, agreeing that it was a concurrent inclusory count of the conviction for robbery in the second degree. People v. Curry, 302 A.D.2d 538 (N.Y.App.Div. 2003). However, it rejected the argument that grand larceny is a lesser-included offense of robbery in the second degree and rejected as unpreserved the argument that the evidence of physical injury was legally insufficient to support robbery in the second degree. Id. On June 10, 2003, the Court of Appeals of New York denied Petitioner's application for leave to appeal. People v. Curry, 100 N.Y.2d 560 (2003).
440 Motion
On or about January 30, 2003, while his appeal was pending with the Appellate Division, Petitioner filed a motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10(1)(e) ("CPL 440" or "440") ("At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that . . . [d]uring the proceedings resulting in the judgment, the defendant, by reason of mental disease or defect, was incapable of understanding or participating in such proceedings."). Petitioner argued that, in light of his "prior health records," "current behavior," and "statements subsequent and throughout the entire judicial proceeding," the trial judge should have ordered a competency hearing, sua sponte, pursuant to N.Y. Crim. Proc. L. § 730.30. (Pet. Mem. of Law in Support of Mot. to Vacate at 2, available at Appx. 66.) On May 9, 2003, Nassau County Court (Lapera, J.) denied Petitioner's motion, finding that "all claims raised by the [petitioner] . . . are based upon events which appear in the Court record. CPL 440.10(2)(c) mandates that claims reviewable on direct appeal be summarily denied when raised in a motion to vacate judgment." (Appx. at 128-129.) Additionally, the court found Petitioner's claims to be "wholly unsupported, conclusory allegations . . . clearly contradicted by the Court record" and advised Petitioner of his right to apply to the Appellate Division for both a certificate granting leave to appeal and for appointment of counsel. (Id.)
Section 440.10(2)(c) states, in relevant part, that "the court must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him." N.Y. Crim. Proc. L. § 440.10(2)(c).
On or about May 30, 2003, Petitioner executed an affidavit of service for his application for leave to appeal the denial of his 440 motion to the Appellate Division. (Appx. at 145.) The Nassau County District Attorney's Office received a copy of the application on June 5, 2003, however, the Appellate Division has no record of its receipt. (Resp't Aff. in Opp'n to Pet. at ¶¶ 16-17.)
Habeas Petition
On or about January 20, 2003, Petitioner filed a petition for writ of habeas corpus in the Southern District of New York. Because Petitioner was convicted in Nassau County, the case was transferred to the Eastern District of New York. (Mukasey, C.J.) However, the file was inadvertently sent to the Northern District of New York, where it was not re-transferred to the Eastern District until February 3, 2004. (Peebles, M.J.)
Petitioner appears to state three grounds for habeas relief: "Conviction obtain[ed] by the unconstitutional failure of the prosecution to disclose," "denial of right to appeal" and "denial of effective assistance of counsel." (Pet. at 5-6.) Also included with his petition is an "Application for Appointment of Counsel" pursuant to 18 U.S.C. § 3006.
Though Petitioner cites 18 U.S.C. § 3006, the statute authorizing district courts to appoint counsel in habeas proceedings is 18 U.S.C. § 3006A(a)(2)(B).
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).
Failure to Disclose and Ineffective Assistance of Counsel Claims
In the past, 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).
Petitioner has never before argued that his conviction was obtained by the unconstitutional failure of the prosecution to disclose exculpatory evidence or ineffective assistance of counsel. Thus, these claims meet the definition of "unexhausted." However, the Court should also consider that, if sent back to state court to exhaust these claims, Petitioner will be denied relief pursuant to a procedural bar if his claims are based on matters on the record, as any such claims could and should have been brought on direct appeal. See N.Y. Court Rules § 500.10(a); N.Y. Crim. Proc. L. § 440.10(2)(c); see also Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993) ("Because [petitioner] failed to raise his [unexhausted] claim in state court and no longer may do so, his claim is procedurally barred"); Lewis v. Bennett, 328 F. Supp. 2d 396, 404 (W.D.N.Y. 2004) (finding unexhausted claims procedurally barred where claim could have been brought on direct appeal). Therefore, Petitioner's unexhausted claims are deemed exhausted in that "there are no state remedies . . . `available' to him." Coleman, 501 U.S. at 732; Spence v. Superintendant, 219 F.3d 162, 170 (2d Cir. 2000) ("[W]hen a claim is procedurally defaulted in state court by failure to abide by state procedural rules and no state remedy is available to a defendant, his claim is deemed exhausted for purposes of a habeas petition.").
If the Petitioners claims are not based on facts appearing in the record, then the procedural bar of 440.10(2)(c) does not apply. However, Petitioner's claims would still be unexhausted. As the Petitioner states no facts upon which the Court can rely in deciding the claims presented in his habeas petition, it is unclear whether his claims are merely unexhausted or also procedurally barred. In either case, the District Court may not rule on them.
A claim that could have been raised on direct appeal is barred from further review in New York state courts. N.Y. Crim. Proc. L. § 440.10(2)(c). When a claim in a federal habeas petition is procedurally barred by state law, it cannot be heard by a federal court "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. "[T]he existence of cause for default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the States' procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986).
Where there is "no basis in the record for overlooking the procedural default" the barred claims are precluded from habeas review. Lewis, 328 F. Supp. 2d at 404; see also Murray, 477 U.S. at 489 (finding fatal to petitioner's procedurally barred claims his failure to prove or allege external impediments to his raising the issue on direct appeal). Notwithstanding the "liberal pleading standards permitted in pro se complaints," Moorish Sci. Temple of Amer., Inc. v. Smith, 693 F.2d 987, 989 (2d Cir. 1982), Petitioner has not stated any facts that would support a finding of cause sufficient to meet the standard of Coleman.
Nor has he alleged that a fundamental miscarriage of justice would occur if the Court could not adjudicate his habeas petition. A fundamental miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496. Though he submitted a reply memorandum, Petitioner did not address Respondent's arguments against a finding of cause, prejudice or fundamental miscarriage of justice. Without such a showing, his petition cannot be heard in federal court.
Claim of Denial of Right to Appeal
Petitioner claims to have been denied the right to appeal. He alleges no specific facts in support of this argument.
There is no constitutional right to appeal. Abney v. U.S., 431 U.S. 651, 656 (1985) ( quoting McKane v. Durston, 153 U.S. 684 (1894)). However, "[i]t is . . . fundamental that, once established . . . avenues [of appellate review] must be kept free from unreasoned distinctions that can only impedc open and equal access to the courts." Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). Therefore, "[i]ssues of due process are implicated when a defendant is denied an adequate opportunity to pursue his appeal." Acosta v. Giambruno, 326 F. Supp. 2d 513, 524 (S.D.N.Y. 2004) ( quoting Evittz v. Lucey, 469 U.S. 387, 402-405 (1985)).
Petitioner's claim of denial of the tight to appeal, "like any other claim for federal habeas relief, is subject to the rule requiring exhaustion of State remedies." Booker v. Kelly, 636 F. Supp. 319, 321 (W.D.N.Y. 1986). Because Petitioner has not presented this argument to any New York State court, it is presumed to be unexhausted. However, there are cases, albeit few, in which, inter alia, unreasonable delays of an attorney's preparation of submissions or of a court's adjudication of an appeal result in a federal court considering the merits of unexhausted habeas petitions. See generally Harris v. Kuhlman, 601 F. Supp. 987, 993 (E.D.N.Y. 1985) (Weinstein, J.) (reviewing claims where Petitioner's attorney waited six years before perfecting appeal and finding that "[a] delay in adjudicating an appeal may constitute a denial of due process and equal protection."); see also Acosta, 326 F. Supp. 2d at 520-521 (S.D.N.Y. 2004) (acknowledging federal court's ability to entertain unexhausted petitions "under certain limited circumstances" pursuant to 28 U.S.C. § 2254(b)(2) yet ultimately finding petitioner's denial of light to appeal claim to be unexhausted because he did not provide the state with "an initial opportunity to pass upon and correct alleged violations of its prisoner's federal rights."); Booker, 636 F. Supp. at 321 (quoting § 2254(b)(1)(B) for the proposition that "a state prisoner may apply for habeas corpus without exhausting State remedies if there is either an absence of available State corrective process or the existence of circumstances rending such process ineffective to protect the rights of the prisoner.").
"An application for a writ 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." 28 U.S.C. § 2254(b)(2).
However, Petitioner has not shown a delay warranting an exemption from the exhaustion requirement. His claim that he was denied the right to appeal must first be exhausted. Additionally, if Petitioner is alleging that the Appellate Division, in failing to rule on his application for leave to appeal the denial of his 440 motion, denied him his light to appeal, he should re-file this motion, as the Appellate Division has no record of its submission.
Request for Counsel
"The right to appointed counsel extends to the first appeal of right, and no further." Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). Therefore, "[t]here is no constitutional right to counsel in a habeas corpus proceeding." Villafane v. Lord, 2003 WL 1878245, *1 (S.D.N.Y. Apr. 11, 2003) (citation omitted). However, 18 U.S.C. § 3006A provides that "[w]henever the United States magistrate judge or the court determines that the interests of justice so require, representation may be provided for any financially eligible person who . . . is seeking relief under section . . . 2254," 18 U.S.C. 3006A(a)(2)(B), making the appointment of counsel discretionary. Under 28 U.S.C. § 1915, a prisoner must submit a "certified copy of the trust fund account statement (or institutional equivalent)" for the six month period prior to the filing of the petition. 28 U.S.C. § 1915(a)(2).
Habeas petitioners' requests for counsel "should be analyzed in the same manner as any other application for counsel in a civil case." Brown v. Shultz, 2004 WL 1944720, at *1 (S.D.N.Y. Aug. 31, 2004). The criteria include "the merits of a plaintiff's case, the availability of counsel, and the plaintiff's ability to gather the facts and deal with the issues if unassisted by counsel. The factor which command[s] the most attention . . . [is] the merits." Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir, 1989) (articulating Second Circuit standard for appointment of counsel). Additionally, "it is not necessary for the [petitioner] to demonstrate that his claims will survive a motion to dismiss or a motion for summary judgment; rather, the Court must find that the claims satisfy a `threshold showing of merit.'" Colarusso v. Rivera, 2004 WL 2049275, at *1 (S.D.N.Y. Sept. 13, 2004) (citation omitted).
Petitioner's request for counsel is denied. For reasons already stated, Petitioner's claim are each either unexhausted or procedurally barred and therefore fail to make even a threshold showing of merit. Additionally, though he submitted a statement of his financial standing, the statement provided covers only one month, while the statute requires proof of income during the last six months. 28 U.S.C. § 1915(a)(2). Therefore, the appointment of counsel is not warranted in this instance.
III. CONCLUSION
The petition for a writ of habeas corpus is denied.
SO ORDERED.