Restrepo v. Kelly

• Decision Date: 02 June 1999
• Docket Number: Docket No. 97-2944
• Parties: Humberto E. RESTREPO, Petitioner-Appellant, v. Walter R. KELLY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 634

178 F.3d 634

Humberto E. RESTREPO, Petitioner-Appellant, v. Walter R. KELLY, Respondent-Appellee.

Docket No. 97-2944.

United States Court of Appeals Second Circuit.

Argued April 21, 1999.

Decided June 2, 1999.

Marjorie M. Smith, Tappan, New York (Englander & Smith, Tappan, New York, on the brief ), for Petitioner-Appellant.

Joseph M. Latino, Assistant District Attorney, White Plains, New York (Jeanine Pirro, District Attorney of Westchester County, Richard E. Weill, Second Deputy District Attorney, White Plains, New York, on the brief), for Respondent-Appellee.

Before: KEARSE, McLAUGHLIN, and CALABRESI, Circuit Judges.

KEARSE, Circuit Judge:

Petitioner Humberto E. Restrepo, a New York State ("State") prisoner, appeals from a final judgment of the United States District Court for the Southern District of New York, Barbara S. Jones, Judge, dismissing his petition under 28 U.S.C. § 2254 for a writ of habeas corpus on the ground that the attorney representing him in his criminal case failed, despite requests and inquiries by Restrepo, to file a notice of appeal from the conviction, thereby violating Restrepo's Sixth Amendment right to the effective assistance of counsel. The district court denied the petition, ruling that federal habeas review is unavailable because Restrepo failed to make a timely motion pursuant to N.Y.Crim. Proc. Law § 460.30 (McKinney 1994) for an extension of his time to appeal, and that that failure constituted a state procedural default for which he could show neither cause nor prejudice. On appeal, Restrepo contends that he has proffered evidence of failures and false representations by his attorney sufficient to show cause for the failure to timely pursue his appeal, and that since counsel's derelictions prevented a direct appeal from the conviction, prejudice is to be presumed. For the reasons that follow, we agree, and we therefore vacate the judgment and remand for an evidentiary hearing on the merits of the petition.

I. BACKGROUND

In November 1990, after a bench trial in New York Supreme Court, Restrepo was convicted of kidnaping, assault, grand larceny, and criminal possession of a weapon, and was sentenced to a prison term of 15 years to life. He was represented at trial by retained counsel, Joseph C. Schioppi. At sentencing, the trial court informed Restrepo, through a Spanish-language interpreter, of his right to appeal and stated that "Mr. Schioppi, your present attorney, will represent you, he will file a written notice of appeal within thirty days if you ask him to do that." (Sentencing Transcript, People v. Restrepo, Ind. 287-90 (Nov. 29, 1990), at 8.) Apparently, however, despite Restrepo's request, no notice of appeal was filed on his behalf. The time for filing such notice expired in December 1990.

In July 1992, Restrepo, represented by new counsel, moved in New York Supreme Court, Appellate Division, for an extension of his time to appeal, stating that Schioppi had failed to file a timely notice of appeal despite Restrepo's request that he do so and despite thereafter giving assurances that he had done so (the "July 1992 motion"). The State opposed the motion on the ground that N.Y.Crim. Proc. Law § 460.30, which authorizes such extensions, requires that such a motion be made within one year of the expiration of the time to file the notice of appeal and that Restrepo's time to make such a motion had expired in December 1991. The Appellate Division denied the July 1992 motion as untimely, and the New York Court of Appeals denied leave to appeal that decision. See People v. Restrepo, No. 92-05923 (2d Dep't Sept. 21, 1992), lv. denied, 81 N.Y.2d 793 (1993). Restrepo thereafter made various additional attempts in state court to secure review of his conviction and sentence, all of which were unsuccessful.

A. The Present Habeas Petition

Having exhausted the avenues for relief in the state courts, Restrepo, proceeding pro se, filed his present habeas petition alleging that Schioppi's failure to file a notice of appeal from the judgment of conviction constituted a denial of Restrepo's constitutional right to the effective assistance of counsel on direct appeal from the conviction. The petition, with attached exhibits including affidavits submitted by Restrepo to the Appellate Division in support of his July 1992 motion, included the following allegations. Restrepo had retained Schioppi to represent him both in the criminal trial and on appeal; at the time of sentencing, Restrepo asked Schioppi to file a notice of appeal. Thereafter, Schioppi repeatedly assured Restrepo in telephone conversations that the appeal was in progress. In May 1991, Restrepo, assisted by a "bilingual paralegal," wrote to Schioppi seeking reassurance that the notice of appeal had been filed; he received no response to his letter. He thereafter made numerous additional attempts to reach Schioppi by telephone but did not succeed in speaking to him in person; on one such attempt, however, the woman who answered the telephone at Schioppi's office told Restrepo not to worry because the notice of appeal had been filed.

In March 1992, having heard no further word from Schioppi and having been unable to reach him, Restrepo obtained new counsel to perfect his appeal. His new attorney contacted Schioppi, who represented to new counsel that a notice of appeal had been filed. The file that Schioppi turned over, however, contained no copy of any notice of appeal, and new counsel eventually determined that no notice had been filed.

Also attached to Restrepo's habeas petition were copies of decisions of the United States District Court for the District of New Jersey, relating to a criminal case in that District, in which the court found that Schioppi had failed to file a notice of appeal and had fraudulently reassured the defendant in that case that the appeal had been processed. See Jones v. United States, No. 90-4291, at 2 (D.N.J. Oct. 1, 1991) (granting motion for resentencing, and stating that "[t]he breach of the fiduciary duty by counsel in this matter is so grave and his perjured explanation so aggravates it that the court shall not only refer this matter to the appropriate ethics committees, but shall refer it to the office of the United States Attorney for consideration of appropriate criminal action."); In re Schioppi, Misc. No. 90-335 (D.N.J. Aug. 12, 1992) (publicly reprimanding Schioppi and suspending him from practice before the court for two years); In re Schioppi, Misc. No. 90-335, at 6 (D.N.J. [Aug. 12,] 1992) (per curiam) ("Schioppi's .... acts were clearly dishonest and deceitful. Moreover, his acts were prejudicial to the administration of justice. By misleading his criminal defendant client such that the client waived the right to appeal his sentence, Schioppi deprived his client of an important right. The ends of justice are surely thwarted when an integral part of the judicial system--the appeal--is not available to a criminal defendant because of the dishonesty of his attorney.").

Restrepo's habeas petition requested that his state sentence be vacated and that he be resentenced, in order to restart the time in which to file a notice of appeal and thus give him the opportunity to pursue his direct appeal. The State, relying on Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), opposed the petition, contending principally that Restrepo's failures to file a timely notice of appeal and to move within the one-year statutory period for an extension of the time in which to file the appeal constituted procedural defaults. The State argued that federal habeas review is foreclosed because these were independent and adequate state grounds for the denial of Restrepo's attempt to appeal, and Restrepo had made no showing of cause and prejudice sufficient to escape the procedural bar.

B. The Decision of the District Court

In a Report and Recommendation dated October 21, 1997 ("Report"), Magistrate Judge Mark D. Fox, to whom Restrepo's habeas petition had been referred by the district court, recommended that Restrepo be assigned counsel and given a hearing on his allegations as to Schioppi's failure to file the notice of appeal and Schioppi's misrepresentations that the appeal had been filed. The magistrate judge recommended rejection of the State's defense of procedural default, distinguishing Coleman v. Thompson on the basis that the attorney's misfeasance in that case occurred in a proceeding in which his client was not constitutionally entitled to counsel, whereas Schioppi's alleged default occurred in connection with Restrepo's direct appeal, a stage at which Restrepo was entitled to counsel. Although noting that, in light of Coleman, "a federal habeas petitioner who fails to pursue a direct appeal may have to satisfy the cause and prejudice standard" (Report at 5), the magistrate judge relied on Rodriquez v. United States, 395 U.S. 327, 329-30, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), and United States ex rel. Randazzo v. Follette, 444 F.2d 625, 628 (2d Cir.), cert. denied, 404 U.S. 916, 92 S.Ct. 232, 30 L.Ed.2d 191 (1971), for the proposition that when there has been a denial of the right to a direct appeal, prejudice need not be shown but is presumed (Report at 6-8). The magistrate judge concluded that if Restrepo could prove his allegations as to Schioppi's misfeasance, he should be granted habeas relief that would permit him to appeal his conviction.

In a Memorandum and Order dated November 21, 1997 ("Decision"), the district judge rejected the magistrate judge's recommendation and denied the writ. The court concluded that the cause-and-prejudice test of Coleman v. Thompson was applicable, and that Restrepo had failed to show either cause or prejudice:

When a "state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the...