Pavel v. Hollins
| Citation | 261 F.3d 210 |
| Decision Date | 01 August 2000 |
| Docket Number | Docket No. 99-2410 |
| Parties | (2nd Cir. 2001) Kenneth G. Pavel, Petitioner-Appellant, v. Melvin L. Hollins, Superintendent, Oneida Correctional Facility; Eliot L. Spitzer, Attorney General of New York State, Respondents-Appellees |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Appeal from a judgment of the United States District Court for the Northern District of New York (Thomas J. McAvoy, then-Chief Judge), denying petitioner Kenneth G. Pavel's application for a writ of habeas corpus on the ground that Pavel was not convicted in state court in violation of his federal right to effective assistance of counsel.
On appeal, Pavel emphasizes that his trial attorney (1) did not prepare a defense, on the theory that the charges against Pavel would be dismissed at the close of the prosecution's case; (2) failed to call two important fact witnesses, with the content of whose putative testimony the attorney was familiar; and (3) did not call as a witness a medical expert. In these circumstances, Pavel argues, his right to effective assistance of counsel was violated.
We agree. Accordingly, we reverse the judgment of the District Court, vacate the state court judgment of conviction, and remand the cause. On remand, the District Court shall issue a writ of habeas corpus to Mr. Pavel on the thirtieth calendar day after the issuance of our mandate unless New York State has, by that point, taken concrete and substantial steps to expeditiously retry him.
James V. O'Gara (Kevin C. Walker, of counsel), Kelley Drye & Warren, LLP, New York, NY, for appellant.
Marlene O. Tuczinski, Assistant Solicitor General (Nancy A. Spiegel, Assistant Solicitor General, Peter H. Schiff, Senior Counsel, of counsel; Eliot Spitzer, Attorney General of the State of New York, on the brief), Office of the Solicitor General of the State of New York, for appellees.
Before: KEARSE and CABRANES, Circuit Judges, and TRAGER, District Judge.*
Petitioner-appellant Kenneth G. Pavel ("Pavel") has been held for more than ten years pursuant to a state court judgment of conviction in the custody of state correctional authorities, most recently that of Respondent-Appellee Melvin L. Hollins, Superintendent of the Oneida Correctional Facility. Over five years ago, on February 7, 1995, Pavel petitioned for a writ of habeas corpus under 28 U.S.C. §2254 in the United States District Court for the Northern District of New York (Thomas J. McAvoy, then-Chief Judge). Pavel argued that the state court judgment of conviction was entered in violation of his rights under the Sixth Amendment to the United States Constitution because his trial attorney provided him with ineffective assistance. Pavel's petition was denied, and judgment was entered accordingly.
On appeal, Pavel emphasizes that his trial attorney (1) did not prepare a defense, on the theory that the charges against Pavel would be dismissed at the close of the prosecution's case; (2) failed to call two important fact witnesses, with the content of whose putative testimony the attorney was familiar; and (3) did not call as a witness a medical expert. In these circumstances, Pavel argues, his right to effective assistance of counsel was violated.
We agree. Accordingly, we reverse the judgment of the District Court, vacate the state court judgment of conviction, and remand the cause. On remand, the District Court shall issue a writ of habeas corpus to Mr. Pavel on the thirtieth calendar day after the issuance of our mandate unless New York State has, by that point, taken concrete and substantial steps to expeditiously retry him.
In the spring of 1989, Pavel was arrested and accused of sexually abusing his children-Matthew Pavel ("Matthew"), then age seven, and David Pavel ("David"), then age five (collectively, "the boys"). The accusations were brought to the attention of the police by Pavel's then-wife, Margaret Pavel ("Ms. Pavel"), with whom he was engaged in a series of marital disputes, and who had recently been denied sole custody over Matthew and David.
Upon his arrest, Pavel contacted Sanford Meltzer ("Meltzer"), the attorney who had represented him in connection with the marital disputes. Meltzer noted that there was little if any physical evidence that Pavel had sexually abused the boys in the manner that they alleged.1 Accordingly, Meltzer did not prepare a defense; instead, he planned to move to dismiss the charges against Pavel at the close of the prosecution's presentation of its evidence and was confident that the trial judge would grant the motion.2
Pavel pleaded not guilty, a bench trial commenced, and at the close of the prosecution's evidence, Meltzer moved to dismiss the charges against Pavel. In relevant part, the motion was denied.
Meltzer, as noted, had not prepared for this eventuality. Accordingly, he had little choice-he put Pavel on the stand, and then rested without calling any other witnesses.3
On October 18, 1989, the state trial judge found Pavel guilty of some of the charged crimes and, on November 27, 1989, held a sentencing hearing, at which Pavel contended that he was innocent. Pavel was sentenced principally to two consecutive 4 - 12 year terms of incarceration, and was remanded to prison.
Pavel was paroled almost nine years later-on August 25, 1998. One of the conditions of his parole was that Pavel "cooperate fully" with a particular sex-offender program. As part of the program, Pavel was required to admit having committed the crimes for which he was convicted. He refused to do so, see PAVEL AFFIDAVIT (executed April 20, 2001) at ¶4 (), and was therefore returned to prison on November 15, 1999. He is there now.
Before assessing Pavel's Sixth Amendment claim, we pause briefly to provide a fuller account of the procedural history of this case, and of the evidence presented at trial.
As noted above, following a bench trial in Onondaga County Court, New York (John W. Brandt, Judge), Pavel was convicted on October 18, 1989 of sodomizing, sexually abusing, and endangering the welfare of his children. A judgment of conviction was entered, and within one calendar year, the state's direct-appeals process had run its course: The judgment was affirmed by the Appellate Division, Fourth Department, see People v. Pavel, 163 A.D.2d 834 (1990), and leave to appeal was denied by a Judge of the New York Court of Appeals, see People v. Pavel, 76 N.Y.2d 862 (1990).
On July 27, 1992 in Onondaga County Court, Pavel moved pursuant to New York Criminal Procedure Law § 440.10(1)4 to vacate the judgment of conviction ("the §440.10 motion"). One of the bases of the §440.10 motion was Pavel's claim that Meltzer had provided him with ineffective assistance of counsel. After oral argument, at which Pavel was represented by Jeffrey S. Cook and James V. O'Gara of the New York law firm Kelley Drye & Warren, the §440.10 motion was denied. Leave to appeal from the denial was itself denied on April 1, 1993 by a Judge of the Appellate Division, Fourth Department.
On February 7, 1995, Pavel petitioned for a writ of habeas corpus in the District Court, arguing, inter alia, that Meltzer had provided ineffective assistance of counsel. The petition was denied as procedurally barred, and judgment was entered accordingly on August 16, 1996. Pavel then applied for a Certificate of Appealability, and his application was denied in a December 23, 1996 Decision and Order entered by Judge McAvoy.
Approximately one month later, Pavel moved this Court for a Certificate of Appealability. We ruled by summary order that Pavel's claims were not procedurally barred and remanded the cause to the District Court, by mandate entered July 10, 1997, for a determination of the petition on the merits.
On June 16, 1999, Judge McAvoy again dismissed Pavel's habeas petition, this time on the merits, and on July 20, 1999, he denied for a second time Pavel's motion for a Certificate of Appealability.
On October 19, 1999, Pavel moved in the Court of Appeals for another Certificate of Appealability. By order dated July 24, 2000, we granted the motion on the question of whether "appellant [Pavel] was denied effective assistance of trial counsel if, as he alleges, his counsel, assuming that his motion to dismiss would be granted, failed to prepare a defense."
That is the question now before us.
The prosecution's evidence at trial consisted principally of the testimony of five witnesses, which we summarize briefly here.
First, seven-year old Matthew testified under oath that Pavel had anally sodomized him every Saturday during the four months from December 1988 until mid-April 1989. Matthew testified also that he and David spent a week-long vacation, from Saturday, April 15, 1989 until Saturday, April 22, 1989, with Pavel, at the Florida apartment of Clothilde Pavel, Pavel's mother and the boys' grandmother. Matthew testified that he was anally sodomized at least twice during that trip-at least one of the incidents, Matthew testified, took place in Clothilde Pavel's bathroom, while she was making breakfast.5 Following the trip, Matthew testified that he and David told Ms. Pavel, their mother, about Pavel's alleged sodomizing of them. The police were informed of the accusations; five days after returning from Florida, Matthew and David were given physical examinations, and Pavel was arrested. Matthew then spoke with a therapist named Constance McKinstry ("Ms. McKinstry") and the prosecutor about Pavel's alleged sex abuse.
Second, five-year old David testified as an unsworn witness. His testimony was, as might be expected, frequently non-responsive or confused.6 But some of David's testimony was clear; David testified...
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