116 F.3d 62 (2nd Cir. 1997), 15, Rodriguez v. Weprin

Docket Nº:15, Docket 95-2416.
Citation:116 F.3d 62
Party Name:Robert RODRIGUEZ, Plaintiff-Appellant, v. Earle F. WEPRIN, Defendant, and Charles J. Hynes; Elizabeth Holtzman; Jane Sutley; Martin H. Brownstein, John Doe; David M. Epstein; Jack Jordan; Peter A. Weinstein; Defendants-Appellees.
Case Date:June 19, 1997
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 62

116 F.3d 62 (2nd Cir. 1997)

Robert RODRIGUEZ, Plaintiff-Appellant,

v.

Earle F. WEPRIN, Defendant,

and

Charles J. Hynes; Elizabeth Holtzman; Jane Sutley; Martin

H. Brownstein, John Doe; David M. Epstein; Jack

Jordan; Peter A. Weinstein;

Defendants-Appellees.

No. 15, Docket 95-2416.

United States Court of Appeals, Second Circuit

June 19, 1997

Submitted April 1, 1997.

Page 63

Robert Rodriguez, pro se, Napanoch, NY (on submission), for Plaintiff-Appellant.

Paul A. Crotty, Corporation Counsel of the City of New York, New York City (Leonard Koerner and Pamela Seider Dolgow, of counsel, on submission), for Defendants-Appellees Charles J. Hynes, Kings County District Attorney, Elizabeth Holtzman, Jane Sutley, and Peter A. Weinstein.

Dennis C. Vacco, Attorney General of the State of New York, New York City (Barbara G. Billet, Solicitor General, Thomas D. Hughes, Deputy Solicitor General, Carolyn Cairns Olson, Assistant Attorney General, of counsel, on submission), for Defendants-Appellees Martin H. Brownstein and John Doe.

Steven Verveniotis, Wilson, Elser, Moskowitz, Edelman & Dicker, New York City

Page 64

(Brett A. Scher, of counsel, on submission), for Defendant-Appellee David M. Epstein.

Before: OAKES and KEARSE, Circuit Judges, and MURTHA, District Judge. [*]

MURTHA, District Judge:

Plaintiff-appellant Robert Rodriguez appeals from a judgment entered in the United States District Court for the Eastern District of New York, Weinstein, J., denying his claims for relief arising from the alleged unconstitutional delay in state appellate review of his felony convictions. Because we agree that the appellant is not entitled to the relief he seeks, we affirm the judgment of the district court.

I. BACKGROUND

In December 1983, a New York state jury convicted Rodriguez of four counts of second degree murder and one count of first degree attempted robbery. The court imposed a sentence of fifty years to life imprisonment.

In January 1984, the appellant filed his notice of appeal to the New York Appellate Division, Second Department. Pursuant to Rodriguez's request, on July 19, 1984, the Appellate Division assigned Attorney Earle F. Weprin as his counsel. On January 18, 1985, Rodriguez moved to replace Attorney Weprin with Attorney Lawrence J.D. Mort, his former trial counsel, a request which the Appellate Division granted in February 1985.

On September 22, 1987, Rodriguez asked the court to assign new counsel in place of Attorney Mort. It was not until mid-May 1988 that the Appellate Division granted Rodriguez's motion and assigned David M. Epstein as new appellate counsel.

On April 4, 1989, Epstein filed his appellate brief. Because of an apparent disagreement with Epstein, on October 10, 1989, Rodriguez again asked the Appellate Division to assign him new counsel. The Appellate Division denied this request; however, it granted Rodriguez permission to file a supplemental appellate brief pro se.

In April 1990, Rodriguez filed a petition for a writ of habeas corpus in the Eastern District of New York in which he claimed ineffective assistance of counsel. Several months later, Judge Weinstein dismissed the petition. See Rodriguez v. Hoke, No. 90-CV-1304, 1990 WL 91739 (E.D.N.Y. June 22, 1990). On appeal, this Court remanded the action so that the district court could determine whether the state court's alleged delay in considering Rodriguez's direct appeal violated his due process rights. See Rodriguez v. Hoke, No. 90-2344 (2d Cir. Dec. 11, 1990).

Meanwhile, on November 9, 1990, the district attorney filed his responsive brief in the Appellate Division. Around this time, Rodriguez requested access to certain state court records and moved for an extension of time to file his pro se supplemental brief. The Appellate Division denied his requests. On September 23, 1991, seven years and eight months after he filed his notice of appeal, the Appellate Division affirmed Rodriguez's convictions. See People v. Rodriguez, 176 A.D.2d 299, 574 N.Y.S.2d...

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