Cody v. Henderson

• Decision Date: 26 June 1991
• Docket Number: D,No. 1180,1180
• Citation: 936 F.2d 715
• Parties: William CODY, Petitioner-Appellee, v. Robert J. HENDERSON, Warden, Auburn Correctional Facility, Respondent-Appellant. ocket 90-2578.
• Court: U.S. Court of Appeals — Second Circuit

Page 715

936 F.2d 715

William CODY, Petitioner-Appellee, v. Robert J. HENDERSON, Warden, Auburn Correctional Facility Respondent-Appellant.

No. 1180, Docket 90-2578.

United States Court of Appeals Second Circuit.

Argued March 12, 1991.

Decided June 26, 1991.

Joseph M. Latino, White Plains, N.Y., Asst. Dist. Atty. of Westchester County (Carl A. Vergari, Dist. Atty. of Westchester County, Richard E. Weill, Second Deputy Dist. Atty., of counsel), for respondent-appellant.

Charles E.F. Millard, Jr., New York City (Davis Polk & Wardwell, Ivor C. Wolk, Frederick R. Kessler, Ogden N. Lewis, of counsel), for petitioner-appellee.

Before FEINBERG, TIMBERS and NEWMAN, Circuit Judges.

FEINBERG, Senior Circuit Judge:

Respondent-appellant Robert J. Henderson, Warden of the Auburn Correctional Facility, appeals from a judgment of the United States District Court for the Southern District of New York in October 1990, Vincent L. Broderick, J., granting petitioner-appellee William Cody's petition for a writ of habeas corpus, pursuant to 28 U.S.C. Sec. 2254. Judge Broderick granted the petition on the ground that extensive delay in the processing of Cody's criminal appeal in the New York State courts violated his constitutional right to due process, even though the New York State Appellate Division, Second Department (Appellate Division), affirmed Cody's conviction a few months after he brought his habeas petition. Appellant Warden argues that Cody is not entitled to habeas relief because he failed to establish that the delayed disposition of his appeal in the state courts prejudiced his appeal. For reasons given below, we vacate the judgment of the district court and remand with instructions to allow Cody the option of recasting his habeas petition as an action for damages pursuant to 42 U.S.C. Sec. 1983.

I. Background

In 1978, William Cody was indicted in Westchester County on charges of attempted robbery in the first degree, burglary in the second degree, attempted grand larceny in the second degree and unlawful imprisonment in the first degree. The indictment arose out of the robbery of the home of actor Hume Cronyn, during which Cody gagged and handcuffed Cronyn, his secretary and a real estate broker and threatened two of the three at gunpoint. In June 1979, Cody pled guilty to the single charge of attempted robbery in the first degree in exchange for dismissal of the other counts of the indictment. Cody was sentenced in July 1979 to a term of imprisonment of six to 12 years, to run consecutively to parole time owed by Cody from a prior conviction.

On July 18, 1979, a notice of appeal was filed on Cody's behalf. In February 1980, Cody moved for permission to proceed in forma pauperis and for the assignment of appellate counsel. The Appellate Division granted the motion in March 1980 and assigned Alton Maddox, Jr., Esq., as counsel. At the same time, the Appellate Division ordered the court stenographer to make, certify and file within 60 days the typewritten transcripts of the minutes of all the proceedings below. In March 1981, the Appellate Division also ordered the court stenographer to produce two copies of the transcripts of a Wade hearing that had been conducted shortly before Cody's guilty plea and to provide those transcripts to Maddox without cost. Despite these two orders, the transcripts still had not been filed with the Clerk of the Appellate Division as of July 6, 1984, almost five years after Cody's original notice of appeal. Also, Maddox apparently did not receive a copy of the complete minutes until October 1985.

Cody escaped from state prison in July 1980 and was not returned until October 1981. While out of prison, he was convicted of assault in the second degree in Bronx County, for which he received a sentence of six years to life imprisonment. Subsequently, he was also convicted of escape in the first degree and sentenced to a term of two to four years, to run concurrently with the six years to life term but consecutive to any time owed on prior convictions.

In October 1982, the District Attorney of Westchester County moved to dismiss Cody's appeal. Cody apparently contested this motion on the ground that he had not yet received a transcript of the lower court proceedings, and in November 1982 the Appellate Division denied the motion. Nonetheless, two and one-half years later, in June 1985, the Appellate Division dismissed Cody's appeal sua sponte even though Maddox still had not received complete transcripts of the lower court proceedings. Neither Maddox nor the Clerk of the Appellate Division informed Cody at this time that his appeal had been dismissed. Cody was apparently unaware of the dismissal until 1988, when he wrote to the Appellate Division requesting that Maddox be replaced as his assigned counsel and was informed that his appeal had been dismissed three years earlier. Between 1986 and 1988, Cody and his family members had made repeated attempts to contact Maddox in order to clarify the status of the appeal, but they rarely received even a reply in response to their inquiries much less notice that the appeal had actually been dismissed.

Upon learning that his appeal had been dismissed, Cody moved pro se in the Appellate Division to vacate the 1985 dismissal order and to obtain assignment of new counsel. In July 1988, the Appellate Division granted Cody's motion, reinstated his appeal and assigned John F. Clennan, Esq. to prosecute it expeditiously. In February 1989, Cody sent the present habeas corpus petition to the United States District Court for the Eastern District of New York, alleging ineffective assistance of counsel and unconstitutional delay in the processing of his state criminal appeal. Shortly thereafter, the petition was transferred to the Southern District where it was filed. Six months later, in September 1989, the Appellate Division affirmed Cody's judgment of conviction, more than 10 years after his notice of appeal had first been filed. Subsequently, Cody was denied leave to appeal to the New York Court of Appeals.

In November 1989, Cody moved for appointment of counsel in his habeas action in the Southern District. The district court granted the motion in March 1990, and directed counsel to address the issue of undue delay in the appellate process. In October 1990, the district court granted Cody's application for habeas corpus relief and ordered his release from custody. The court applied the four-factor analysis of undue delay set forth in Barker v. Wingo 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972), which singles out the length of delay, the reason for delay, defendant's assertion of his right and prejudice as the relevant factors in determining whether a pre-trial delay is unconstitutional. The court found that the state bore principal responsibility for the undue delay in processing Cody's appeal, that Cody had been subjected to significant personal stress as a result and that the egregious delay constituted a violation of his constitutional right to due process. The court also concluded that release from custody with respect to the specific conviction at issue was justified even though the Appellate Division had already affirmed the judgment of conviction. The judge noted, however, that Cody would not be immediately released from prison because he remained subject to a continuing sentence of six years to life on the basis of later convictions. The court stayed the judgment pending resolution of Cody's appeal.

II. Discussion

A. Appellant's Threshold Argument

Appellant Warden challenges the ruling of the district court on grounds that may best be described as jurisdictional. Appellant points out that Cody's habeas petition does not attack the validity of the state judgment of conviction under which he is incarcerated. Rather, the petition relates only to defects in the state appellate process. Such defects, appellant Warden argues, simply do not affect the validity of a trial court's judgment of conviction; this is why, for example, the proper remedy for an ineffective appeal is not release from custody but rather the assignment of new appellate counsel to prosecute the appeal de novo. See, e.g., Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967); Wheeler v. Kelly, 811 F.2d 133, 135 (2d Cir.1987). Appellant claims therefore that habeas review is not warranted. Appellant concedes that excessive state appellate delay may justify excusing a petitioner's failure to exhaust state remedies, but argues that in such circumstances the federal habeas court should simply assume jurisdiction over the state appeal and decide the merits of any attack on the conviction itself.

In his habeas petition, Cody alleges that he is being held unlawfully because "after 9 1/2 years of confinement [he] has not had timely appellate review" in "state court[ ]" of "the conviction for which he stands" incarcerated. He argues that this lengthy delay is a constitutional violation of his due process rights, a violation for which New York State is solely responsible owing to "[i]nexcusable bad faith." Cody's contention is that by flagrantly violating his due process rights in this way the state has rendered his otherwise lawful incarceration unlawful. Such a claim satisfies the jurisdictional prerequisite for habeas review.

We agree with Cody that the district court properly considered his claim on the merits. The Supreme Court has not yet directly addressed the issue of whether the Constitution guarantees a speedy criminal appeal, once an opportunity for an appeal is provided. The lower federal courts, however, have grappled with the question, and it is now clear in this circuit that substantial delay in the state criminal appeal process is a sufficient ground to justify the exercise of federal habeas jurisdiction. See, e.g., Diaz v. Henderson, 905 F.2d 652, 653-54 (2d Cir.1990); Simmons v. Reynolds, 898 F.2d 865,...