Geames v. Henderson, CV 89-2332.

• Decision Date: 22 November 1989
• Docket Number: No. CV 89-2332.,CV 89-2332.
• Citation: 725 F. Supp. 681
• Parties: Leroy GEAMES, Petitioner, v. R.J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

725 F. Supp. 681

Leroy GEAMES, Petitioner, v. R.J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.

No. CV 89-2332.

United States District Court, E.D. New York.

November 22, 1989.

Leroy Geames, pro se.

Patrick Henry, Suffolk County Dist. Atty. by Glenn D. Green, Riverhead, N.Y., for respondent.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Petitioner Leroy Geames seeks a writ of habeas corpus under 28 U.S.C. Section 2254. In his pro se petition, petitioner claims that the state court's three-and-one-half years delay in deciding his appeal has resulted in a denial of his constitutional right to due process. The respondent opposes the petition on the grounds that the petitioner has neither exhausted his state remedies nor been denied his due process rights. For the reasons stated below, the writ is granted.

I.

On February 14, 1986, petitioner was convicted in Supreme Court, Suffolk County, of robbery in the first degree. He was thereafter sentenced to an indeterminate term of imprisonment of twelve and one-half to twenty-five years.

On February 19, 1986, the Legal Aid Society ("Legal Aid") filed a notice of appeal on petitioner's behalf. Thereafter, on April 17, 1986, the Appellate Division of the Second Judicial Department ("Appellate Division") assigned Legal Aid to represent the petitioner on his appeal.

However, on July 11, 1986, Legal Aid moved to be relieved as appellate counsel. In a letter to petitioner dated July 11, 1986, Legal Aid noted that the file in petitioner's case and correspondence from petitioner indicated his displeasure with representation by Legal Aid trial counsel. Because a conflict would arise if the appeal were based on ineffective assistance of counsel, Legal Aid informed petitioner that it was precluded from representing him on appeal and, therefore, was seeking to be relieved as appellate counsel.

By order dated September 10, 1986, the Appellate Division granted Legal Aid's request and assigned Andrew Schatkin ("Schatkin") as new appellate counsel. The court further ordered that all papers in the action be turned over to Schatkin, that the time to perfect the appeal be enlarged, and that Schatkin prosecute the appeal expeditiously.

Nevertheless, in September of 1987, Schatkin informed petitioner that he was seeking to be relieved as assigned counsel because he had accepted a position with the Legal Aid Society of New York City. During his one year as appellate counsel, Schatkin was unable to perfect petitioner's appeal.

In support of his motion to the Appellate Division, dated September 12, 1987, to be relieved as counsel, Schatkin affirmed that he had partially written the appeal, which he offered to make available to new counsel. In addition, Schatkin maintained that one reason the appeal remained unperfected was that during the winter he had been severely ill with pneumonia.

By order dated November 19, 1987, Schatkin's motion was granted and Michael J. O'Connor ("O'Connor") was appointed new counsel to prosecute the appeal. Schatkin was directed to turn over all papers to O'Connor, but no schedule was established for perfecting the appeal. The court, once again, merely enlarged the petitioner's time to perfect the appeal.

Sometime in December 1987, by an undated letter, O'Connor notified petitioner of his assignment as appellate counsel, and of his intention to file the appellate brief as soon as possible. In May of 1988, O'Connor wrote petitioner to tell him that he was actively working on the appeal and was seeking additional information.

Concerned as to O'Connor's progress with the brief, petitioner wrote O'Connor on September 18, 1988, asking O'Connor what progress had been made on the appeal. Petitioner also sent copies of cases which he wanted incorporated into the brief, and asked that O'Connor inform him of the issues that would be raised in the brief. O'Connor wrote petitioner the following week to acknowledge receipt of the September 18 letter. Then on November 3, 1988, petitioner claims that O'Connor told petitioner's wife that he was going to file the brief later that month. By letter dated November 4, 1988, petitioner informed O'Connor that he opposed O'Connor's filing the brief without giving him the opportunity to review it. Petitioner also complained at that time that O'Connor had not responded to earlier requests that certain points be raised in the brief. Petitioner forwarded a copy of the November 4 letter to the Appellate Division, though the record does not indicate whether the Appellate Division received or acted on the letter at that time.

The record indicates that from November of 1988 to May of 1989, the petitioner had unsuccessfully attempted to stay in close communication with O'Connor regarding the progress of the appeal. In May 1989, petitioner wrote the New York State Bar Association ("Bar Association") to complain about O'Connor's handling of the appeal. In its reply, the Bar Association informed petitioner that it had forwarded his correspondence to the Grievance Committee for the Tenth District, the body with jurisdiction over petitioner's allegations of misconduct by his attorney. Finally, on June 5, 1989, O'Connor sent petitioner a copy of the brief, purportedly containing only the substance of the appellate issues, for him to review. Respondent's Memorandum at 7. In the cover letter O'Connor apologized for the "inordinate delay," which he attributed to illness.

Apparently under the impression that the portion sent was the complete brief, petitioner wrote O'Connor to complain about perceived inadequacies in the brief. When O'Connor failed to respond, petitioner, on June 25, 1989, wrote the Appellate Division to complain that he was having a hard time contacting O'Connor, and to inquire whether O'Connor had yet filed the brief. Petitioner wrote a follow-up letter on July 25, 1989, and the Appellate Division responded on August 1, 1989. Through its Chief Clerk, Martin Browstein, the Appellate Division informed the petitioner that it had written O'Connor and had directed him to contact the petitioner and advise him of the status of the appeal. When petitioner did not hear from O'Connor over the next two weeks, he again wrote the Appellate Division. Petitioner stated that O'Connor had not contacted him as directed, and complained about the adequacy of the brief which O'Connor had sent to him in June. Shortly thereafter, O'Connor contacted petitioner to inform him that the Suffolk County District Attorney ("District Attorney") had motioned for a preference in the hearing of petitioner's appeal.

In July of 1989, this Court issued an order directing the respondent to show cause why the present petition should not be granted. In addition to responding to the order on the respondent's behalf, the District Attorney moved for a preference in the Appellate Division to have the state court appeal determined expeditiously. Respondent's Memorandum at 8.

The District Attorney, through Assistant District Attorney Glenn Green, has informed this Court that O'Connor has recently filed the appellate brief and that the petitioner has filed a pro se supplemental brief. Mr. Green has also informed this Court that the state will file its brief in opposition by November 24, 1989, and that oral argument will be set for December 9, 1989.

II.

As noted above, petitioner claims that the state court's delay in deciding his appeal has deprived him of his constitutional right to due process of law. Respondent opposes the petition on the ground that the petitioner has failed to exhaust state remedies and on the merits.

A. Exhaustion

Respondent points out correctly that a federal court may not consider a petition for habeas corpus unless the petitioner exhausts all available state court remedies. However, where there is either an absence of available state corrective processes or the existence of circumstances rendering such corrective processes ineffective, exhaustion will not be required. 28 U.S.C. Section 2254(b). Where, as here, a habeas claim is based upon allegedly unconstitutional delay in the state appellate process, and a prisoner's requests to the state court and state-appointed counsel have been to no avail, the Court of Appeals for the Second Circuit has held that the state provides no effective remedy and, consequently, exhaustion is not required. Brooks v. Jones, 875 F.2d 30, 31 (2d Cir. 1989); Mathis v. Hood, 851 F.2d 612, 615 (2d Cir.1988). Accordingly, this Court holds that petitioner's failure to exhaust his state remedies does not bar this Court from considering his claim of unconstitutional delay in the state appellate process. See Brooks, 875 F.2d at 31; Mathis, 851 F.2d at 615; Wheeler v. Kelly, 639 F.Supp. 1374, 1378-81 (E.D.N.Y.1986), aff'd, 811 F.2d 133 (2d Cir.1987).

B. The Merits

To determine whether delay in state appellate procedure has deprived a petitioner of due process of law, a federal court must look to the totality of the circumstances, though several factors have provided the core of the analysis for post-conviction delay. See Brooks, 875 F.2d at 31 (citing Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101 (1972)); Wheeler, 639 F.Supp. at 1378-81. These factors include (1) the time period of the delay; (2) the reason for the delay; (3) the petitioner's attempt to perfect the appeal; and (4) the prejudice to the petitioner caused by the delay. Id.; see Simmons v. Reynolds, 708 F.Supp. 505, 509 (E.D.N.Y. 1989). A fifth factor is federal-state judicial comity. Wheeler, 639 F.Supp. at 1378. In this context, a federal court considers how soon the state appellate court will decide the appeal. Id. at 1381. No single factor is dispositive, rather a court must engage in a balancing test considering all other relevant circumstances.

As for the time period of the delay, "there is no formula for determining if a delay is excessive." Id. at 1378; see also Gimenez v. Leonardo, ...