152 F.3d 920 (2nd Cir. 1998), 96-2762, Perfetto v. Kuhlmann

Docket Nº:96-2762.
Citation:152 F.3d 920
Party Name:Gary PERFETTO, Petitioner-Appellant, v. R.H. KUHLMANN, Superintendent of Sullivan Correctional Facility, Respondent-Appellee.
Case Date:June 05, 1998
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 920

152 F.3d 920 (2nd Cir. 1998)

Gary PERFETTO, Petitioner-Appellant,

v.

R.H. KUHLMANN, Superintendent of Sullivan Correctional Facility, Respondent-Appellee.

No. 96-2762.

United States Court of Appeals, Second Circuit

June 5, 1998

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA2 s 0.23 regarding use of unpublished opinions)

Appeal from the United States District Court for the Eastern District of New York (Joanna Seybert, Judge).

Submitted on behalf of Appellant: Anthony V. Lombardino, Richmond Hill, NY.

Submitted on behalf of Appellee: Richard A. Brown, District Attorney, Queens County (John M. Castellano, Robin A. Forshaw, and Emil Bricker, Assistant District Attorneys, of counsel), Kew Gardens, NY.

PRESENT: CALABRESI, Circuit Judge, POLLACK, [*] and DRONEY, [**] District Judges. [***]

SUMMARY ORDER

Petitioner Gary Perfetto was convicted in state court on charges of second degree murder and robbery, and is currently serving sentences of twenty years to life, and eight and one-third to twenty-five years, respectively. In 1994, Perfetto sought habeas corpus, which the United States District Court for the Eastern District of New York (Joanna Seybert, Judge ) denied on the merits. Having failed to receive notice of the judgment, Perfetto did not seek to appeal from that judgment in a timely fashion. Subsequently, he filed a motion to reopen the time for filing a notice of appeal, but the request was denied. He now seeks review of that denial.

1.

In 1989, Perfetto first filed a petition for a writ of habeas corpus. At that time, Perfetto's attorney, Anthony Lombardino, listed his office address as 225 Broadway, New York, NY. In 1994, the district court dismissed the petition without prejudice, in accordance with Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), on the ground that Perfetto had not exhausted his state remedies with respect to one of his asserted grounds for relief. Perfetto dropped the unexhausted claim and a new petition was entered on his behalf in September of 1994. By that time, however, Lombardino had long since moved his law offices from New York City to 101-05 Lefferts Boulevard, Richmond Hill, NY. The new habeas petition reflected this change of address.

On August 23, 1995, the district court issued a Memorandum and Order dismissing Perfetto's petition and declining to issue him a certificate of probable cause. Judgment was entered on September 6. In due course, the clerk of the district court mailed a copy of the order to Perfetto's attorney, but mistakenly sent it to the lawyer's (former) New York City address. This was done despite the fact that the lawyer put his new Richmond Hill address on the habeas petition when he...

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