Gulliver v. Dalsheim, 1661

• Decision Date: 18 July 1984
• Docket Number: D,No. 1661,1661
• Citation: 739 F.2d 104
• Parties: Charles Anthony GULLIVER, Appellee, v. Stephen DALSHEIM, Superintendent, Downstate Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Appellants. ocket 82-2093.
• Court: U.S. Court of Appeals — Second Circuit

Page 104

739 F.2d 104

Charles Anthony GULLIVER, Appellee, v. Stephen DALSHEIM, Superintendent, Downstate Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Appellants.

No. 1661, Docket 82-2093.

United States Court of Appeals Second Circuit.

July 18, 1984.

Terry Jane Ruderman, Asst. Dist. Atty., White Plains, N.Y. (Carl A. Vergari, Dist. Atty. of Westchester County, Anthony Joseph Servino and Gerald D. Reilly, Asst. Dist. Attys., White Plains, N.Y., of counsel), for appellants.

Barry Bassis, The Legal Aid Soc., Federal Defender Services Unit, New York City, for appellee.

Before OAKES, MESKILL and KEARSE, Circuit Judges.

OAKES, Circuit Judge:

This appeal is by the State from an order of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, granting a writ of habeas corpus on behalf of the petitioner-appellee, Charles Anthony Gulliver, on the grounds of ineffective assistance of counsel. Gulliver v. Dalsheim, 574 F.Supp. 111 (S.D.N.Y.1983). The district court issued its order ¹ after a remand from this court, Gulliver v. Dalsheim, 687 F.2d 655 (2d Cir.1982), to require exhaustion or deletion of unexhausted claims under the intervening decision in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and to determine whether under our decision in Martinez v. Harris, 675 F.2d 51 (2d Cir.1982) (if state argues for affirmance on both substantive and procedural grounds and state appellate court upholds judgment without opinion, federal habeas court should presume state court based ruling on procedural ground), Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), would apply to bar habeas relief to Gulliver on his claim of ineffective assistance of appellate counsel. We now affirm the district court's disposition of the Rose and Martinez issues, and reverse on the merits.

The Decision Below. Following remand, the district court ultimately ² found that the Rose v. Lundy question had been disposed of by removing certain open issues by stipulation, and that Martinez was inapposite. In reaching this conclusion, the court noted that Gulliver's sole procedural mistake was to mislabel his state appellate papers "petition for habeas corpus," rather than "motion to reargue," and that had the papers been properly captioned, the Appellate Division would have heard the argument on the merits. Distinguishing Martinez, the court observed that the procedural default in that case (failure to object to asserted error at trial) was of a substantially higher magnitude than the mislabeling here. 574 F.Supp. at 113. Wainwright v. Sykes, the district court noted, also involved a noncorrectable procedural default, while Gulliver's error, in light of the discretionary jurisdiction granted the Appellate Division by N.Y.Civ.Prac.Law Sec. 470.15(6)(a), was easily curable. Id. Similarly, the district court found that New York did not itself seem to recognize a particularly strong state interest in the procedural rule that habeas corpus is an inappropriate remedy in the Appellate Division, noting that in a recent case, the Appellate Division did indeed consider and dispose of the merits, despite mislabeling. People ex rel. Hall v. Lefevre, 92 A.D.2d 956, 460 N.Y.S.2d 640, 641 (3d Dep't 1983). See 574 F.Supp. at 114 & n. 2. Judge Knapp also stressed the fact that Gulliver appeared pro se before the state appellate court, and reasoned that the New York court must have ruled on the merits since "no such court would ever dismiss a pro se complaint for a correctable mistake without telling the pro se how to correct it." 574 F.Supp. at 113 (emphasis in original). The district court therefore held that it was proper to assume that under Martinez there was no procedural default under Sykes or Engle. It therefore reinstated its original decision granting the writ, and the State appealed.

Discussion. Before addressing the merits of the State's appeal, we must consider Gulliver's motion to dismiss the State's appeal as untimely since the notice of appeal was not filed until some five months after the district court's order. Fed.R.App.P. 4(a). The district court, on April 24, 1984, noted that we had "retained jurisdiction," and granted relief to the State in the form of (A) leave "out of time to file a notice of appeal" and (B) extension of time for compliance with the order in the event leave to appeal be denied or an appeal should ultimately be unsuccessful.

Gulliver's position is that there was no excusable neglect on the part of the State within Rule 60(b), that the State's untimely appeal is simply time-barred, and that the district court lacked jurisdiction to allow notice of appeal to be filed more than sixty days after its decision. See, e.g., Hensley v. Chesapeake & Ohio Railway Co., 651 F.2d 226, 228 (4th Cir.1981); Reynolds v. Hunt Oil Co., 643 F.2d 1042, 1043 (5th Cir.1981); Russo v. Flota Mercante Grancolombiana, 303 F.Supp. 1404, 1406 (S.D.N.Y.1969). But we need not reach this question since we did explicitly "retain jurisdiction," thereby obviating the requirement that either party actually file any additional "notice of appeal" within Rule 4. ³

To be sure, it is not customary to retain jurisdiction merely in order to assure that a judgment or decree will be enforced. NLRB v. Deena Artware, 251 F.2d 183, 186 (6th Cir.1958). But jurisdiction is sometimes retained, as it was here, for the "purpose of facilitating immediate review of further trial court proceedings." 16 C. Wright, A. Miller, E. Cooper, C. Cressman, Federal Practice and Procedure Sec. 3937, at 272. See, e.g., Federal Deposit Insurance Corp. v. Grella, 553 F.2d 258, 264 (2d Cir.1977); IIT v. Vencap, Ltd., 519 F.2d 1001, 1018-19 (2d Cir.1975); In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir.1981), appeal after remand, 659 F.2d 1322 (1981), cert. denied, 456 U.S. 1012, 102 S.Ct. 2308, 73 L.Ed.2d 1309 (1982). The remand is a "limited" one, United States v. Theriault, 526 F.2d 698, 699 (5th Cir.1976), which requires the district court to find facts or pass on issues while the court of appeals retains jurisdiction over the merits in the event that the findings of fact or conclusions of law on the remand do not enable or require the court of appeals to dispose of the case summarily. Retaining jurisdiction is thus quite different from remanding for purposes of simply requiring lower court findings. Accordingly, Gulliver's motion to dismiss the State's appeal is denied. We thus reach the Martinez-Sykes-Engle issue and affirm that issue on the opinion of the district court. 574 F.Supp. 111.

On the merits of Gulliver's constitutional claim, however, we now have additional guidance from the Supreme Court's recent decision in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland the Court, while holding that the Sixth Amendment right to counsel is one of "effective assistance," --- U.S. at ----, 104 S.Ct. at 2064 (quoting McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970)), nevertheless imposed a two-component showing before a claim of deprivation of that right may be made: first, it must be shown that the attorney's performance was so deficient and his errors so serious that "counsel was not functioning as ... 'counsel' ...," id. --- U.S. at ----, 104 S.Ct. at 2065, and, second, that those errors functioned so "as to deprive the defendant of a fair trial, a trial whose result is reliable," id., i.e., that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068. Here, of course, we are dealing with an appeal, rather than a trial, but we assume a similar two-prong showing must be made. We have as additional guidance Jones v. Barnes, --- U.S. ----, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), with its gloss that mere failure to argue a colorable claim is not ineffective advocacy on appeal. The teaching of Jones v. Barnes is that the courts should not "second guess [appellate counsel's] reasonable professional judgments." Id. at 3314. Although that case dealt solely with counsel's decision whether or not to argue certain issues at all, we see no reason why its teaching should not be extended to the review of the manner in which counsel chooses to present an argument.

Here the district court found that assigned appellate counsel told petitioner that the appeal was "hopeless," despite the fact that, in ...