Grady v. Artuz

• Decision Date: 24 June 1996
• Docket Number: No. 94 Civ. 7362 (JGK).,94 Civ. 7362 (JGK).
• Citation: 931 F. Supp. 1048
• Parties: Nathaniel T. GRADY, Sr., Petitioner, v. Christopher P. ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

931 F. Supp. 1048

Nathaniel T. GRADY, Sr., Petitioner, v. Christopher P. ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.

No. 94 Civ. 7362 (JGK).

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

June 24, 1996.

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Joel B. Rudin, New York City, for Petitioner.

Robert T. Johnson, District Attorney, Bronx County by Susan L. Valle, Assistant District Attorney, New York City, for Respondent.

OPINION AND ORDER

KOELTL, District Judge:

Reverend Nathaniel T. Grady petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 based on an alleged violation of his Sixth Amendment right to the effective assistance of appellate counsel. The petitioner argues that his counsel's failure to raise on direct appeal the claim that the indictment was duplicitous constituted unconstitutionally ineffective assistance of counsel. A count of an indictment is duplicitous under New York law if it charges more than one offense.

I.

The relevant factual circumstances relating to Grady's prosecution based on the trial record and the procedural history of Grady's trial, appeal, and collateral proceedings are as follows.

A.

In early Autumn 1983, Reverend Nathaniel T. Grady, Sr., then forty-six years old, was assigned to be the minister of the Westchester United Methodist Church. The Church leased part of its space to the Westchester-Tremont Community Day Care Center in the Bronx, New York City. Grady's job responsibilities included supervision of repairs at the day care center, and starting in December 1983 Grady occupied an office at the day care center adjacent to a classroom for three-year-olds. At the end of March 1984, Grady began building a closet in the classroom for the children to store the cots they used during nap time. Grady was in the classroom working on the closet on a daily basis during the first week of April 1984.

In late April 1984, one of the children at the day care center reported to his mother that he had experienced sexual contact between himself and an adult male. An investigation ensued, conducted by the New York City Police Department and the Federal Bureau of Investigation ("FBI"). Law enforcement officials interviewed children and parents, teachers at the day care center, and Reverend Grady. The FBI conducted thirty days of video surveillance of the classroom and other areas within the day care center, although no evidence of sexual misconduct or abuse was discovered from the surveillance. The investigation revealed evidence of sexual abuse committed against six children, all approximately three years old at the time, usually occurring during nap time at the day care center. The evidence included accounts by the children of their own abuse, descriptions by children of abuse they witnessed perpetrated against other children, statements by the children's parents as to both physical symptoms exhibited by their children and the episodes of abuse their children had related to them, and physiological evidence gathered by a pediatrician and found to be consistent with sexual contact. No teacher or other adult witness testified that they witnessed any of the acts of abuse related by the children.

The Bronx District Attorney initiated the prosecution against Grady on October 9, 1984, when a Grand Jury in Bronx County returned a forty-two count indictment charging Grady with rape, sodomy, and sexual abuse of six children at the day care center over a one- or two-month period earlier in 1984. Grady was tried in New York State Supreme Court, Bronx County from November 1985 through January 1986. The children testified at trial, as did their parents and teachers. In addition to medical evidence, the People submitted the expert testimony of Eileen Treacy on the subject of certain behavioral and psychological symptoms exhibited by victims of child abuse. Reverend Grady testified in his own defense, denying outright all of the charges and insisting he had never interacted with any of the children at the child care center without a teacher present. The defense also offered its own expert witness on child sexual abuse, as well as numerous character witnesses.

B.

On January 20, 1986, after one week of deliberations, the jury convicted Grady on nineteen counts of rape, sodomy, and sexual abuse against five children ranging in age from three to four years old. Justice Bernard J. Fried sentenced Grady on May 1, 1986 to an indeterminate aggregate prison term of fifteen to forty-five years. Grady retained new counsel, ("Appellate Counsel"), to represent him on direct appeal from the conviction. Appellate Counsel prepared an extensive brief presenting six grounds for appeal and reviewing the 5,500 page trial record in detail. Nonetheless, Grady's conviction was affirmed by the Appellate Division, First Department without opinion, People v. Grady, 125 A.D.2d 1011, 508 N.Y.S.2d 359 (1st Dep't 1986), and leave to appeal to the Court of Appeals was denied. People v. Grady, 69 N.Y.2d 880, 515 N.Y.S.2d 1028, 507 N.E.2d 1098 (1987).

Collateral proceedings began with a petition for a writ of habeas corpus brought in this Court pursuant to 28 U.S.C. § 2254. The petition set forth three claims for relief, although no error based on duplicity of the indictment or failure to pursue such a claim on direct appeal was included. The petition was denied on the merits by Judge Whitman Knapp. Grady v. LeFevre, No. 87 Civ. 4983 (S.D.N.Y. Dec. 4, 1987). That denial was vacated and remanded with instructions to dismiss the petition by the Court of Appeals for the Second Circuit, Grady v. LeFevre, 846 F.2d 862 (2d Cir.1988), based on Grady's failure to exhaust all of his state remedies with respect to two of the claims raised in the petition brought before Judge Knapp.

Grady then submitted a petition for a writ of habeas corpus in New York State Supreme Court, Clinton County, in a proceeding under N.Y.Crim.Proc.L. ("CPL") art. 70 asserting the same claims that were set forth in the earlier federal habeas petition. The Article 70 petition was denied on procedural grounds on January 6, 1989, affirmed by the Appellate Division, Third Department, People ex rel. Grady v. LeFevre, 152 A.D.2d 850, 544 N.Y.S.2d 61 (3d Dep't 1989), and leave to appeal was denied. People ex rel. Grady v. LeFevre, 75 N.Y.2d 702, 552 N.Y.S.2d 108, 551 N.E.2d 601 (1990).

Grady again retained new counsel and moved before Justice Fried to vacate the conviction pursuant to CPL § 440.10. The basis of this motion was the duplicity of the indictment. The court found that Grady's failure to pursue and thereby preserve the duplicity issue on direct appeal was "unjustifiable" and therefore the motion was denied. People v. Grady, N.Y.L.J., Apr. 16, 1991, at 24 (N.Y.Sup.Ct., Bronx Co. Apr. 16, 1991). Grady appealed Justice Fried's decision and petitioned the Appellate Division for a writ of error coram nobis on the ground of ineffective assistance of Appellate Counsel for failing to have raised the duplicity issue on direct appeal. Both the appeal and the petition were denied by summary order, People v. Grady, 175 A.D.2d 980, 573 N.Y.S.2d 407 (1st Dep't 1991), and application for leave to appeal was dismissed for lack of jurisdiction. People v. Grady, 78 N.Y.2d 1127, 578 N.Y.S.2d 885, 586 N.E.2d 68 (1991).

Grady then filed this second petition for a writ of habeas corpus asserting a single claim based on his former Appellate Counsel's failure to have raised on direct appeal the issue of the duplicity of the indictment. Grady argues that his former counsel elected to omit the duplicity issue from the direct appeal to the Appellate Division, First Department, choosing instead to present a host of far less promising arguments. After the direct appeal was fully submitted to the Appellate Division but before a decision was issued, the New York Court of Appeals had issued its decision in People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577 (1986), relating directly to the issue of duplicity. Grady argues that Appellate Counsel refused to bring this intervening authority to the attention of the Appellate Division, even after Grady asked him whether the new decision was helpful to his appeal. Grady also complains that Appellate Counsel declined to mention the intervening case or the duplicity argument in general to the New York Court of Appeals in Grady's request for leave to appeal to the Court of Appeals. Grady argues that he was not afforded effective assistance of Appellate Counsel because of his lawyer's disregard for the duplicity argument.

This claim of ineffective assistance of Appellate Counsel was not presented in Grady's first § 2254 petition before Judge Knapp, nor was it included in the subsequent article 70 habeas petition in the New York State Supreme Court. Accordingly, the Respondent challenges this petition as an abuse of the writ. The Respondent also argues that the issue of ineffective assistance of Appellate Counsel on the basis of duplicity of the indictment is unexhausted because Grady asserts new facts not previously presented in any proceeding in state court. Finally, the Respondent argues that Grady's claim of ineffective assistance of Appellate Counsel fails on the merits.

After considering the extensive submissions, the Court finds that Grady's petition is not an abuse of the writ and presents a claim for which Grady has properly exhausted his state remedies. On the merits of the petition, the Court finds that Grady was deprived of the effective assistance of Appellate Counsel because of his former lawyer's failure to raise the duplicity of the indictment on direct appeal. Accordingly, Grady is entitled to a new appeal from his conviction, and, as explained fully below, the petition for a writ of habeas corpus is conditionally granted.¹

II.

Before reaching the merits, there are two procedural arguments raised by the Respondent. The first obstacle Grady must overcome is...