Bellamy v. Cogdell

• Decision Date: 01 June 1992
• Docket Number: No. 438,D,438
• Citation: 974 F.2d 302
• Parties: Perry BELLAMY, Petitioner-Appellant, v. William COGDELL, Warden, Brooklyn House of Detention, Respondent-Appellee. ocket 91-2327. . Argued Before the In Banc Court:
• Court: U.S. Court of Appeals — Second Circuit

Page 302

974 F.2d 302

61 USLW 2219

Perry BELLAMY, Petitioner-Appellant, v. William COGDELL, Warden, Brooklyn House of Detention Respondent-Appellee.

No. 438, Docket 91-2327.

United States Court of Appeals Second Circuit.

Argued Before the In Banc Court: June 1, 1992 Decided Sept. 8, 1992.

Michael A. Ciaffa, Mineola, N.Y. (Meyer, Suozzi, English & Klein, P.C., of counsel), for petitioner-appellant.

Barbara D. Underwood, Asst. Dist. Atty. for Queens County, Kew Gardens, N.Y. (Richard A. Brown, Dist. Atty. Tammy J. Smiley, and Seymour Roth, Asst. Dist. Attys., Queens County, of counsel), for respondent-appellee.

Before: MESKILL, Chief Judge, FEINBERG, OAKES, NEWMAN, KEARSE, CARDAMONE, WINTER, PRATT, MINER, ALTIMARI, MAHONEY, WALKER, and McLAUGHLIN, Circuit Judges.

ALTIMARI, Circuit Judge:

We granted rehearing in banc to consider whether petitioner-appellant Perry Bellamy suffered a per se denial of his right to counsel under the Sixth Amendment. The parties were also invited to brief the application of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) to this habeas corpus proceeding. These issues arise from Bellamy's appeal from a judgment entered in the United States District Court for the Eastern District of New York, (Reena Raggi, Judge ), denying Bellamy's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1988).

In a well-reasoned opinion, Judge Raggi rejected Bellamy's claims that he was denied: (1) effective assistance of counsel, either under a per se rule or under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); (2) due process; and (3) a full and fair opportunity to litigate his attorney's competence at a state court hearing held in connection with his motion to set aside his conviction pursuant to N.Y.Crim.Proc.L. Art. 440 (McKinney 1983). Bellamy v. Cogdell, No. 90-4245, --- F.Supp. ----, 1991 WL 377837 (E.D.N.Y. June 28, 1991).

A divided panel of this court reversed the judgment of the district court, concluding that Bellamy suffered a per se denial of his Sixth Amendment right to counsel. Bellamy v. Cogdell, 952 F.2d 626 (2d Cir.1991). On in banc review, we agree with the district court and hold that our narrowly crafted per se rule does not apply to the facts of this case. We therefore vacate the panel opinion and affirm the judgment of the district court.

BACKGROUND

The facts in this case are largely undisputed. In January 1987, Bellamy went on trial in New York Supreme Court, Queens County, for his charged participation in the murder of State Parole Officer Brian Rooney. Lorenzo "Fat Cat" Nichols, a notorious Queens drug dealer, ordered Rooney's murder from Nichols' jail cell. This "hit" was a revenge killing for Rooney's efforts in placing Nichols behind bars. The state's evidence at trial showed that, in exchange for $5,000, Bellamy lured Rooney to a park in Queens where associates of Nichols shot Rooney repeatedly as Rooney sat in his car. After almost three weeks of trial, including five days of jury deliberations, a jury convicted Bellamy of second degree murder and second degree criminal possession of a weapon. Bellamy was eventually sentenced to fifteen years to life for the murder conviction and five to fifteen years for the weapon possession conviction, the sentences to run concurrently.

Over one year prior to the start of Bellamy's trial, Bellamy's mother contacted Attorney Sidney Guran to represent Bellamy. Although Guran was then retired and living in Florida, he had represented Bellamy numerous times in the past and agreed to represent him again. At that time, Guran was seventy-one years old and had been a duly admitted and successful member of the bar for almost fifty years.

In the months preceding and during Bellamy's trial, Guran was the subject of disciplinary proceedings in the Appellate Division, First Department. In October 1986, the Departmental Disciplinary Committee alleged that Guran had converted client funds in 1976 and had negligently handled a real estate transaction in 1977. The Committee scheduled a hearing on these charges for December 11, 1986. On November 10, 1986, Guran's attorney, Richard L. Baltimore, Jr., requested that the hearing be adjourned because more time was needed to compile documents for the hearing and because Guran was then "not mentally capable of preparing for the hearing." Baltimore based his evaluation of Guran's capacity on phone conversations with Guran in which he found "a certain amount of disorientation" and on a letter, dated October 29, 1986, from Guran's physician, Dr. Richard P. Cohen.

According to Dr. Cohen, Guran suffered from a variety of physiological ailments, including a recently diagnosed polyneuropathy, a condition "characterized by peripheral motor weakness [and] unsteadiness" on one's feet. Dr. Cohen had been treating Guran for that condition for the preceding six weeks. During that time, as a result of the "physical and emotional stress" associated with Guran's recently discovered illness and of certain medications, Guran had been "virtually incapacitated." Dr. Cohen also noted that as a result of that condition, Guran "at times" had "an inability to concentrate." The prognosis for Guran's newly discovered condition was uncertain at that time, but Dr. Cohen "anticipated" that evaluation and treatment of the polyneuropathy would take three to six months, and that Guran would be "effectively incapacitated during that time."

Based on these communications, and on the underlying charges, the Disciplinary Committee filed a notice of petition with the First Department on November 21, 1986 seeking to have Guran suspended immediately and indefinitely from the practice of law. The accompanying petition recounted, among other things, the substance of the letters that Guran's attorney and physician had submitted to the Committee. In response, Guran submitted an affidavit to the First Department dated December 12, 1986, in which he admitted his medical problems, but stated that a suspension, with its attendant stigma, was unnecessary. According to Guran, he had been essentially retired since 1984, having taken on no new work except for Bellamy's case. Because of his prior representation of Bellamy and because of his familiarity with the case, Guran requested that he be permitted to represent Bellamy, stating:

I, of course, will not attempt to try this case by myself. I will have a competent attorney, but I must be present to assist him. Bellamy relies on, and strictly trusts only me and his mother has paid me. It would be a complete disservice to this defendant and jeopardize his right to a fair trial if I were not permitted to assist in his trial and defense.

Neither the Disciplinary Committee nor the First Department ever responded to Guran's affidavit.

On December 11, 1986, Guran also advised the trial judge, John T. Gallagher, in an ex parte submission, about the pending disciplinary charges and his attendant health problems. Among other things, Guran informed Judge Gallagher:

You might remember that I had a Dr. [sic] appointment ... at N.Y. Hospital at which time a tentative diagnosis of [a form of polio commonly known as Lou Gehrig's Disease] was made. Needing time to prepare [for the disciplinary hearing scheduled for December 11, 1986], feeling miserable, [and] discouraged, I returned home and, through my lawyer, sent a copy of my medical statement to the Committee. Immediately they moved to suspend me pending my recovery....

I am feeling better and have secured the services of Marvin D. Skedelsky, Esq. [to assist me with the trial].

Jury selection in Bellamy's trial began on January 6, 1987. Although Skedelsky told Guran that he would be available to assist Guran at trial, Skedelsky was unexpectedly occupied with another case when Bellamy's trial commenced. As a result, Guran represented Bellamy alone. At no time was Bellamy informed of Guran's disciplinary or health problems. On January 24, 1987, after almost three weeks of trial including five days of deliberations, the jury convicted Bellamy of second degree murder and second degree criminal possession of a weapon.

On March 26, 1987, more than two months after Bellamy's conviction, the First Department--without a hearing--suspended Guran from the further practice of law. The First Department chose to suspend Guran based on his representation made over three months earlier in December 1986 that his then-existing state of health prevented him from preparing for his disciplinary hearing.

Having learned that Guran had been suspended, Bellamy, represented by pro bono counsel, moved in June 1987 pursuant to N.Y.Crim.Proc.L. Art. 440 (McKinney 1983) to vacate his judgment of conviction. Among other things, Bellamy claimed that he was not afforded effective representation due to Guran's alleged incapacity and his subsequent suspension on that ground. Alternatively, Bellamy requested that a hearing be held to determine Guran's competency. On July 30, 1987, Judge Gallagher denied Bellamy's Art. 440 motion and his request for a hearing, ruling from the bench that:

He [Guran] did an excellent job in trying that case. I don't know of any mistakes that he made in trying the case.

Further, with respect to the Appellate Division, Mr. Guran came to me before he started this case. He told me that he had a matter pending before the Appellate Division. This was with the First Department. I called the First Department and I told them that Mr. Guran was in my court and he had a matter to try here and I asked if it was appropriate for me to permit him to try this case, and they told me that it was permissible for me to do that and that's exactly what I did and I did it at Mr. Guran's request. He knew exactly what I was doing.... [S]o there's no impropriety with respect to Mr. Guran's conduct or how he tried the case.... (emphasis added).

Upon Bellamy's motion for reconsideration, the court ordered a...