Harris v. Kuhlman
| Citation | 601 F. Supp. 987 |
| Decision Date | 05 February 1985 |
| Docket Number | No. CV-84-2657 (JBW).,CV-84-2657 (JBW). |
| Parties | James HARRIS, Petitioner, v. Robert KUHLMAN, Warden, Woodbourne Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Julius M. Wasserstein, Lasher & Wasserstein, New York City, for petitioner.
John Santucci, Dist. Atty., County of Queens, Kew Gardens, N.Y., for respondents; Robert Alexander, and Brian Bressman, Kew Gardens, N.Y., of counsel.
Petitioner seeks a writ of habeas corpus. 28 U.S.C. § 2254. Several difficult problems are presented. First, whether petitioner, having made repeated efforts (through his family and by letters) to contact his attorney during this time and to obtain relief from the Clerk of the Appellate Division, can be said to have exhausted available state remedies. Second, whether the failure of petitioner's court-appointed counsel to perfect his appeal to the Appellate Division within 7½ years is attributable to the state. Finally, whether petitioner's due process rights were violated when he was imprisoned for more than half of his sentence and was unable to perfect his appeal in the state courts during that time. For the reasons indicated below, each of these questions is answered in the affirmative and the writ is granted.
Petitioner is presently incarcerated in the Woodbourne Correctional Facility of the New York State Department of Correctional Services. He was committed to this institution on May 23, 1977, having been convicted on each of two counts of robbery in the first degree and of criminal possession of a weapon in the second degree. For the robbery he was sentenced to 10-20 years; for the gun charge he was sentenced to 3½ to 7 years. All terms were to run concurrently, but consecutive to any time petitioner owed for having violated a prior parole.
On May 23, 1977, petitioner filed a Notice of Appeal. The Appellate Division of the Supreme Court of the State of New York, Second Department assigned William Hellerstein of the Legal Aid Society as counsel. N.Y. County Law Art. 18-B, § 722 et seq. (McKinney's 1972 & Supp.1984). Petitioner received notice of this assignment on January 24, 1978 and was informed by the Clerk to direct any further inquiries to counsel.
On February 16, 1978, petitioner, having consulted with fellow inmates, petitioned the Supreme Court of New York to set aside his conviction on the basis of newly-discovered evidence and the ineffective assistance of counsel at trial. N.Y.Crim. Proc.L. § 440.10 (McKinney's 1972). The Supreme Court conducted a hearing on July 16, 1978. It denied his motion on October 16, 1978 and denied leave to appeal.
When the Legal Aid Society learned that one basis for the direct appeal was ineffectiveness of counsel at trial, it sought to be replaced as petitioner's counsel because the Society had defended him at trial. The court relieved the Legal Aid attorney on December 15, 1978 and assigned New Counsel. New Counsel was a former Assistant District Attorney in Queens County knowledgeable in state criminal law.
On June 19, 1984, seven full years after filing his original notice of appeal, petitioner requested that this court issue a writ of habeas corpus. A hearing was held on November 16 and 17, 1984.
Upon his appointment, New Counsel received a letter from the Appellate Division, as well as a memorandum specifying his obligations to his client and to the court. The instructions reminded counsel that, because he would be appealing a judgment entered after the taking of testimony, counsel had 120 days from the date a certified transcript was filed with the court to bring his appeal on for argument. Any request for an extension of time was to be submitted in writing prior to the expiration of 120 days. At about the same time, New Counsel received a copy of the trial transcript, the minutes of the arraignment and sentencing, and a copy of the Legal Aid Society's motion to be relieved. He did not receive a transcript of the hearing on the 440 motion until 1980. (Apparently he did nothing to expedite preparation of that transcript.) Nor did he ever submit a request in writing for an extension of time in which to perfect the appeal.
When New Counsel was assigned petitioner's appeal, it represented the sixth appeal assigned to him by the court within an eight-month period. Those officials in charge of the 18-B Panel of the court provided this workload despite the fact that when New Counsel had applied for appointment to the Panel, he noted his lack of experience or training with appeals prior to that time. Following his assignment, New Counsel notified petitioner of his appointment. A hiatus of six years occurred during which he made no effort to perfect the appeal.
At the hearing before this court New Counsel explained that during this time he suffered from a period of depression caused by the death of close members of his family, including his mother, the severe illness of his father, his wife's miscarriage and subsequent pregnancies, as well as the difficulties of starting a law firm. Nevertheless, he was able during that same time to perfect an appeal before the Court of Appeals for the Second Circuit which has strict time controls. It is clear from the hearing that the Second Circuit appeal was given prompt attention by counsel because he knew that the federal Court of Appeals would not tolerate delay. In contrast, the Appellate Division, Second Department did not then monitor delays in appeals.
During this six-year period, New Counsel received no guidance or indication from the Appellate Division that the delay in perfecting his appeal was inordinate. The Chief Clerk of the Appellate Division, Second Department, testified that prior to 1983, there was no mechanism to monitor such delays and the court relied on attorneys to perfect appeals. On March 21, 1983, the Appellate Division, Second Department, promulgated a dismissal calendar, comparable to the system already in place in the Second Circuit, designed to rid the court of those cases not brought for hearing "within six months of the filing of the record or papers on which the appeal is to be heard." Ap.Div.R. 670.24 (eff. Mar. 23, 1983). The rule, however, was not retroactive and has not been applied to the backlog of appeals filed prior to 1983.
The testimony of Mr. William Hellerstein, the Attorney in Charge of the Criminal Appeals Bureau of the Legal Aid Society, made clear the effectiveness of a dismissal calendar. He testified that prior to the implementation of a dismissal calendar in the Second Department, appeals were perfected more expeditiously in the First Department, which had a dismissal calendar, than in the Second Department, which did not. Tr. at 66. Only the internal controls of the Legal Aid Society enabled it to maintain some balance. He also stated that the pressure of the dismissal calendar even on Legal Aid to perfect appeals was substantial. Id.
The Chief Clerk of the Appellate Division, Second Department, also testified that the first time he contacted New Counsel was on March 12, 1984, after receiving a letter from petitioner inquiring about the delay in his appeal. A deputy clerk wrote New Counsel and received a reply which stated that the appeal would be perfected by the end of April, 1984. It was not, and the Appellate Division, Second Department, attempted no further communication with New Counsel.
The Principal Appellate Office Assistant in charge of the 18-B Panel was called. She testified that the Panel did not followup to ascertain whether counsel had properly carried out their assignments. It should be noted that New Counsel testified that he had accepted additional assignments offered to him by the Panel even while he was guilty of gross delays in handling petitioner's case.
Testimony was also taken from the Chief of the Appeals Bureau of the Queens County District Attorney's Office. She stated that except for petitioner's original application to proceed in forma pauperis, no attorney had been assigned to his direct appeal until 1984 when he filed a petition in federal district court. An attorney from the District Attorney's Office had worked on petitioner's 440 motion in 1979.
The Chief of the Appeals Bureau also testified that the District Attorney's Office did not monitor all appeals and at no time would it make a motion to place a case such as petitioner's, which was inactive for seven years, on the dismissal calendar. She admitted that her office did monitor the appeals of those who made bail during a stay of execution while awaiting appeal.
Petitioner testified to his own actions while waiting for his appeal to be perfected. He indicated that he had always relied on court-appointed counsel and he had been directed by the Appellate Division to make all inquiries regarding his appeal to his attorney. He had attempted to contact New Counsel through family members and had then written to him twice, once in 1981 and again in 1982. Finally, prior to seeking relief in federal court, he had sought the assistance of the Appellate Division by writing to it. He had not requested other counsel because fellow inmates advised him that would delay his appeal several more years.
Based on the advice of some "jailhouse lawyers," petitioner commenced the instant proceeding on June 15, 1984. This court issued an order to show cause to respondent on June 20, 1984. The court appointed counsel from its Criminal Justice Act Panel of Attorneys, and inquired by telephone and telegram directed to New Counsel when the appeal would be perfected. New Counsel informed the court that he expected to submit his brief on August 1. In fact, it was not filed until August 22, 1984, six years and seven months after the case was assigned, and six years and three months after it was due.
The Queens District Attorney's Office...
To continue reading
Request your trial
-
Harris v. Champion
...assert a colorable state or federal claim that would warrant reversal of his or her conviction. 16 See id. But see Harris v. Kuhlman, 601 F.Supp. 987, 994 (E.D.N.Y.1985) (finding that seven-year delay might impair petitioner's defense if he were retried, even though review of petitioner's c......
-
Grady v. Artuz
...instructions to grant writ unless petitioner permitted to present omitted ground for appeal to Court of Appeals); Harris v. Kuhlman, 601 F.Supp. 987, 994 (E.D.N.Y.1985) (ordering successful petitioner released unless his new appeal was decided within sixty days and staying the decision pend......
-
Simmons v. Beyer
...of a public defender who is so overloaded with work as to be unable to service his appeal as of right"); Harris v. Kuhlman, 601 F.Supp. 987 (E.D.N.Y.1985) (Weinstein, J.) (state's failure to screen, administer, and monitor appointed attorneys infringed petitioner's due process and equal pro......
-
Cameron v. LeFevre
...to create a specific formula in evaluating whether the length of an appellate delay is inherently prejudicial. In Harris v. Kuhlman, 601 F.Supp. 987, 993 (E.D.N.Y.1985), the court held that a delay is presumed prejudicial when the length between conviction and perfection of an appeal exceed......