Nell v. James, 47

• Citation: 811 F.2d 100
• Decision Date: 30 January 1987
• Docket Number: D,No. 47,47
• Parties: Gary NELL, Plaintiff-Appellant, v. Warden Charles JAMES, Superintendent of Collins Correctional Facility, John J. Santucci, District Attorney for Queens County and Robert Abrams, Attorney General for the State of New York, Defendants-Appellees. ocket 86-2058.
• Court: U.S. Court of Appeals — Second Circuit

Page 100

811 F.2d 100

Gary NELL, Plaintiff-Appellant, v. Warden Charles JAMES, Superintendent of Collins Correctional

Facility, John J. Santucci, District Attorney for Queens

County and Robert Abrams, Attorney General for the State of

New York, Defendants-Appellees.

No. 47, Docket 86-2058.

United States Court of Appeals, Second Circuit.

Submitted Aug. 28, 1986.

Decided Jan. 30, 1987.

Robert Abrams, Atty. Gen. for State of N.Y., New York City (Lucas E. Andino, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees.

Before CARDAMONE, PIERCE and ALTIMARI, Circuit Judges.

CARDAMONE, Circuit Judge:

In 1967 the Supreme Court delivered its view of the role of court-appointed appellate counsel prosecuting an appeal from a This appeal is from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.) denying appellant Gary Nell's petition for a writ of habeas corpus sought pursuant to 28 U.S.C. Sec. 2254. Assigned counsel seeks to be relieved from representation and has filed an Anders brief. The Assistant Attorney General of New York moves for summary affirmance of the district court's order. For reasons to be explained shortly, we grant counsel's motion to be relieved and also grant appellant Nell's motion for assignment of new counsel. The State's motion for summary affirmance of the judgment of conviction is denied.

                criminal conviction when counsel believes the appeal has no merit.   Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).  Approximately 25 Anders briefs have been filed annually in this Circuit for the past two years.  Over one-half of the briefs were submitted by private attorneys assigned to represent indigent defendants under the Criminal Justice Act, 18 U.S.C. Sec. 3006A (CJA).  A significant number of these briefs fall below the standards set by the Supreme Court.  We believe it necessary therefore to state again the Anders requirements for the benefit of those members of the private bar who undertake CJA assignments
                

I

A. Background

In May 1984, after Nell pled guilty to several counts of burglary and attempted burglary in the second degree, he was sentenced to 5 to 10 years as a second violent felony offender under N.Y. Penal Law Sec. 70.04. At sentencing, Nell was asked by the court whether he wished to controvert a 1979 felony conviction which was the predicate offense for an enhanced sentence as a violent-felony offender. Although informed that silence would be considered an admission, Nell requested that he be allowed to "stand mute". His attorney failed to controvert the 1979 conviction.

Nell subsequently moved pro se to vacate that conviction pursuant to N.Y. CPL Sec. 440.10 alleging that he had not received effective assistance of counsel in the 1979 proceedings. The motion was denied and leave to appeal was denied by the Appellate Division, Second Department, in February, 1985. Nell then filed the present petition in federal district court seeking habeas relief. In his petition, appellant attacks his 1979 conviction claiming that his counsel failed to present evidence which would have established his standing to challenge a search that implicated him in a robbery.

Nell had already challenged the 1979 robbery conviction in a prior habeas petition filed in 1981, the denial of which we affirmed by summary order. Nell v. Dunham, 722 F.2d 728 (2d Cir.), cert. denied, 464 U.S. 836, 104 S.Ct. 124, 78 L.Ed.2d 121 (1983). In his 1981 petition, insofar as here pertinent, appellant urged that the state had not provided an opportunity for full and fair litigation of his Fourth Amendment claim and that the identification testimony gained as a result of a search of his girlfriend's apartment should have been suppressed because he was also living in the apartment and therefore had standing to challenge the evidence seized.

The Fourth Amendment claim is based upon the following facts. Local police officers entered an apartment--where Nell lived with his girlfriend--looking for one Patrick Nolan; the police wanted to arrest Nolan for a parole violation in connection with an unrelated crime. Nolan, Nell and Nell's girlfriend were all in the apartment. While there, one of the officers obtained a miniature detective shield. Nell says that the detective obtained the shield by an unlawful search, but the State claims that Nell's girlfriend gave the shield to the officer. In any event, the shield was traced to the victim of a robbery that had occurred several days previously, and the victim identified Nell's photograph which resulted in his arrest.

Following a Wade hearing, the State court denied Nell's motion to suppress the identification testimony. Nell's counsel In May 1979 Nell pled guilty to a reduced charge of attempted robbery in the second degree. His later motion to vacate the judgment on the ground that his identification had come about from the illegal seizure of the miniature shield was denied. The Appellate Division, Second Department, affirmed his conviction, and the Court of Appeals denied leave to appeal.

then moved for the same relief on the ground that the shield had been seized in violation of the Fourth Amendment and that the identification of Nell as the accused followed directly from the illegal search and seizure. But counsel's written affirmation in support of the motion stated that, at the time the police were searching for drugs and weapons in connection with Nolan's arrest, Nell had been present in "the apartment of his girlfriend". The affirmation failed to allege that Nell lived in the apartment. The motion to suppress was denied.

In rejecting Nell's Fourth Amendment claim in the earlier 1981 habeas proceedings, Judge Sifton concluded that Nell's allegation of standing to challenge the search as presented to the State court was insufficient as a matter of law, since he had not asserted a property or possessory interest in the apartment. The district court further noted that though Nell now contended that he had been living with his girlfriend for a number of years and thus had a protectible privacy interest, it rejected this argument because Nell had not made this claim in the State court and had shown no cause for the failure.

B. Instant Habeas Proceeding

In the present habeas petition--filed in March 1985--petitioner asserts that he was denied effective assistance of counsel in the 1979 proceedings because his attorney failed to present evidence establishing that he lived in his girlfriend's apartment. Nell asserts that the district court's denial of his 1981 habeas petition lends support to his ineffective assistance claim because the district court stated that the State suppression motion was insufficient as a matter of law.

The district court denied Nell's current habeas petition on January 23, 1986, finding the petition to be an abuse of the writ. The court held that appellant had failed to raise his ineffective assistance of counsel claim in the 1981 petition, though the facts underlying the claim were known to Nell at that time. The district court found unconvincing Nell's argument that he had not discovered that his counsel had been ineffective until reading the court's decision denying his 1981 petition. Moreover, the district judge concluded that the ineffectiveness claim was without merit since Nell had not alleged that he had provided facts which would have put counsel on notice as to the alleged privacy interest. Nonetheless, on February 18, 1986 the district court granted a certificate of probable cause to appeal.

II

A. Anders Brief

In Anders, the Supreme Court set forth several rules that govern counsel's role as an advocate in an appeal which counsel believes to be wholly frivolous, and from which counsel therefore seeks permission to withdraw. The rules also establish an appellate court's responsibility upon receiving such an application. The request to the court must: "be accompanied by a brief referring to anything in the record that might arguably support the appeal"; a "copy of counsel's brief should be furnished [to] the indigent" in a manner timely enough to permit him to raise pro se any points that he wishes. Upon receiving the application, the court--not counsel--decides "whether the case is wholly frivolous"; the court may then grant the motion to be relieved or "if it finds any of the legal points arguable on their merits (and therefore not frivolous)," the indigent must be given the assistance of counsel to argue his appeal. 386 U.S. at 744, 87 S.Ct. at 1400.

The purpose of the Anders brief is to assist an appellate court with ready record references and legal authorities in its review of a motion to affirm summarily a district court order or judgment. Anders, 386 U.S. at 745, 87 S.Ct. at 1400. Preparing an Anders brief is an important responsibility, one that requires counsel to search the record with care, and then to explain to an appellate court why there are no non-frivolous issues present. The task is not discharged by counsel either employing a too-fertile imagination in an effort to "dream up" new, untested legal theories or by a sophomoric type of report hurriedly prepared a day before the filing deadline. What is required is a good, thorough, lawyer-like piece of work that reveals counsel's conscientious examination, id. at 744, 87 S.Ct. at 1400, of the facts and law involved in appellant's case. This standard was not met in the instant appeal.

The brief that was filed does not reflect the required "conscientious examination" of Nell's case. In fact, it does little more than reiterate Judge Sifton's conclusions in a one and one-half page discussion of possible issues on appeal. In addition, the brief merely paraphrases or quotes--without acknowledgment--the district court's memorandum and order denying the petition, and contains no indication of an independent examination of the record. Thus, the brief that was filed fails to discharge...