Brooks v. Jones, 1081
| Decision Date | 12 May 1989 |
| Docket Number | No. 1081,D,1081 |
| Citation | 875 F.2d 30 |
| Parties | David BROOKS, Petitioner-Appellant, v. Everett W. JONES, Superintendent of Great Meadows Correctional Facility, Elizabeth Holtzman, Brooklyn District Attorney, Honorable Robert Abrams, Attorney General of the State of New York, Respondents-Appellees. ocket 88-2245. |
| Court | U.S. Court of Appeals — Second Circuit |
Steven A. Feldman, Hauppauge, N.Y. (Feldman and Feldman, Hauppauge, N.Y., of counsel), for petitioner-appellant.
Victor Barall, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Kings County, Brooklyn, N.Y., Barbara D. Underwood, Shulamit Rosenblum, Asst. Dist. Attys., of counsel), for respondents-appellees.
Before LUMBARD, FEINBERG and NEWMAN, Circuit Judges.
David Brooks appeals from an order of the District Court for the Eastern District of New York, Glasser J., dismissing his petition for a writ of habeas corpus on the ground that Brooks had not exhausted his state remedies before filing his petition in federal court. We find that the circumstances surrounding the delay of Brooks's appeal are such that there was little likelihood that his petitioning for a writ of coram nobis in the state courts would have been effective; we therefore reverse the dismissal of Brooks's petition for a writ of habeas corpus and remand for the entry of an order granting the writ if his appeal is not heard within sixty days.
Brooks has been incarcerated for over nine years since his arrest in February 1980. He was tried by juries in two trials in the New York Supreme Court, Kings County and was convicted on October 1, 1980 of criminal possession of a weapon in the third degree and on March 3, 1981 of assault in the first degree and criminal possession of a weapon in the second degree. He was sentenced to imprisonment for three and one-half to seven years on the first weapons conviction and concurrent terms of seven and one-half to fifteen years and three and one-half to seven years on the assault conviction and the second weapons conviction, respectively, these latter two sentences to run consecutively with the sentence on the first conviction. Brooks filed a notice of appeal to the Appellate Division, Second Department, immediately after each judgment was entered.
It was not until February 7, 1989--almost eight years later--that his most recently assigned counsel finally filed a brief in the consolidated appeals. What happened in the intervening eight years consists of inexcusable neglect by a succession of assigned counsel, who relieved one another but did little else, and of a pervasive want of effective supervision of the process by which the post-conviction review of indigents' rights are vindicated.
In view of our disposition of the appeal, there is no need to catalogue in detail the inattention and mismanagement of counsel or the lack of any effective supervision by the Second Department that persisted until the state authorities were prodded into action by Brooks's appeal from Judge Glasser's order upon his grant of a certificate of probable cause on May 20, 1988. Briefly stated, Brooks, proceeding pro se after having successfully petitioned in June 1981 to have Robert A. Strougo, his original assigned counsel, relieved and for leave to proceed pro se or to have new counsel appointed, was unable, after repeated unanswered or tardily and incompletely answered requests, to assemble the complete record for his appeal. Frustrated by this intransigence on the parts of the authorities able to collect certain documents from Strougo, Brooks filed a civil rights action pursuant to 42 U.S.C. Sec. 1983 against Strougo in the Eastern District. The district court dismissed this suit on January 20, 1982, CV-82-0082, because part of the record was mailed to Brooks in prison at that time; we affirmed on March 3, 1983. Brooks then moved on December 30, 1983 for new counsel to be appointed. That motion was granted on August 6, 1984, and Joseph P. Renna was assigned as successor appellate counsel. After having communicated with Brooks immediately after his appointment, Renna neither wrote to nor visited Brooks again. Finally, long after Brooks had filed his pro se habeas corpus petition on June 9, 1986, the Second Department replaced Renna on June 22, 1988 with John F. Clennan, who finally filed a brief over seven months later, on February 7, 1989.
The district...
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Harris v. Champion
...to "the very courts which are responsible, on the face of the pleadings, for the very delay of which he complains"); Brooks v. Jones, 875 F.2d 30, 31 (2d Cir.1989) ("When the petitioner can substantiate his complaint that his right to appeal is being violated by inattention and time-consumi......
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Tripathy v. Schneider, # 20-CV-6366-FPG
...in state court, deeming writs of error coram nobis inadequate to afford relief." Roberites , 546 F. App'x at 20 (citing Brooks v. Jones , 875 F.2d 30, 31 (2d Cir. 1989)) ; Mathis v. Hood , 851 F.2d 612, 614-15 (2d Cir. 1988) ). In Roberites, the Circuit declined to reconsider its precedent ......
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