Rhagi v. Artuz, No. 02-2015.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Per Curiam
• Citation: 309 F.3d 103
• Parties: El RHAGI, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.
• Docket Number: No. 02-2015.
• Decision Date: 25 October 2002

309 F.3d 103 El RHAGI, Petitioner-Appellant,
v.
Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee. No. 02-2015. United States Court of Appeals, Second Circuit. Argued: October 23, 2002. Decided: October 25, 2002.

Page 104

Theodore S. Green, Green & Willstatter, White Plains, NY, for Petitioner-Appellant.

Marc Frazier Scholl, Assistant District Attorney (Morrie I. Kleinbart, Assistant District Attorney, on the brief) for Robert M. Morgenthau, District Attorney, District Attorney's Office, New York County, New York, NY, for Respondent-Appellee.

Before: WINTER, McLAUGHLIN, and CABRANES, Circuit Judges.

PER CURIAM:

Petitioner-appellant Rhagi El,¹ presently incarcerated at the Green Haven Correctional Facility, appeals from denial of his petition for a writ of habeas corpus by the United States District Court for the Southern District of New York (Denny Chin, Judge), entered on July 7, 2000. The appeal is dismissed for lack of appellate jurisdiction in the absence of a valid Certificate of Appealability ("COA"), as explained below.

I.

After choosing to represent himself at trial, El was convicted on April 3, 1996 in New York State Supreme Court, New York County, of criminal possession of a weapon in the second and third degrees and assault in the first and second degrees. His conviction was affirmed by the Appellate Division on May 7, 1998, People v. El, 250 A.D.2d 395, 671 N.Y.S.2d 654 (1st Dep't 1998), and leave to appeal to the New York State Court of Appeals was denied on June 25, 1998, People v. El, 92 N.Y.2d 851, 677 N.Y.S.2d 82, 699 N.E.2d 442 (1998).

El filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York on October 26, 1998, raising three federal constitutional

Page 105

claims: (1) that his waiver of counsel at trial was invalid; (2) that the judge's communication with standby counsel violated his right to self-representation; and (3) that he was improperly penalized at sentencing in violation of his right against self-incrimination because the judge enhanced his sentence for his failure to explain his criminal behavior. El v. Artuz, 105 F.Supp.2d 242, 247-48 (S.D.N.Y.2000). The Court denied the petition, ruling that the latter two claims were procedurally barred and that all three claims failed on the merits. Id. at 249-55. Judge Chin stated that a COA would issue only with respect to "whether petitioner's constitutional right against self-incrimination was violated during the sentencing phase of the case." Id. at 255.

El filed an untimely Notice of Appeal with respect to his self-incrimination claim on December 18, 2001, approximately 17 months after the District Court had entered judgment on July 7, 2000. El asserts that he did not receive the District Court's judgment until December 10, 2001, a statement that finds support in a docket entry indicating that the copy of the judgment mailed to petitioner was returned as "not deliverable" on July 14, 2000. Petitioner claims that his appeal should be considered in order to protect his due process rights to "notice" of the judgment's entry and "opportunity to be heard" through the appellate process. Pet'r's Rep. Br. at 2-3. He also invokes the doctrine of equitable tolling. Id. For the purposes of this appeal, we assume without deciding that one of these grounds would be sufficient to excuse the petition's tardiness.

II.

Nonetheless, we decline to consider petitioner's appeal because no COA has been granted that would permit appellate review in this Court pursuant to 28 U.S.C. § 2253(c).² Although Judge Chin granted a COA with respect to the merits of petitioner's self-incrimination claim, he did not issue a COA with respect to his conclusion that petitioner's claim was procedurally barred and, therefore, the COA issued by the District Court was incomplete. In Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), the Supreme Court specifically stated that "[d]etermining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the district court's procedural holding. Section 2253 mandates that both showings be made before the court of appeals may entertain the appeal." Id. at 484-85, 120 S.Ct. 1595. The COA issued by the District Court was deficient because it was issued only with respect to petitioner's constitutional claim on the merits, and not on the question of procedural bar.

Petitioner argues that the District Court actually did issue a COA on the procedural question. He...