Rhagi v. Artuz

• Citation: 309 F.3d 103
• Decision Date: 25 October 2002
• Docket Number: No. 02-2015.,02-2015.
• Parties: El RHAGI, Petitioner-Appellant, v. Christopher ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

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.

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 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 asserts that "under Slack, the issuance of a COA on a claim found procedurally defaulted signifies that the issuing court has found a sufficient showing as to both the constitutional claim and the procedural question." Pet'r's Rep. Br. at 8. Although it is conceivable that a court, in issuing a COA on the merits of a claim in certain circumstances, would be deemed also to have implicitly issued a COA on the question of procedural bar, the language of Judge Chin's opinion in this case makes clear that a COA on the procedural issue was denied. His opinion states:

[A] certificate of appealability will not issue, except as to the issue of whether petitioner's constitutional right against self-incrimination was violated during the sentencing phase of the case. See 28 U.S.C. § 2253(c), as amended by AEDPA. This Court certifies that, to that extent only, petitioner has made a substantial, though insufficient showing of the denial of a constitutional right. This Court further certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order, other than with respect to that one issue, would not be taken in good faith.

El, 105 F.Supp.2d at 255-56 (emphasis added). The conclusion that Judge Chin denied a COA on the procedural question is bolstered by the fact that, in order to have issued such a COA, he would have had to find that, with respect to procedural bar, "reasonable jurists could debate whether ... the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack, 529 U.S. at 484, 120 S.Ct. 1595 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n. 4, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983) (internal quotation marks omitted)). There is no indication that the Court made such a finding. While Judge Chin allotted roughly two pages of his opinion to a discussion of the merits of petitioner's self-incrimination claim, El, 105 F.Supp.2d at 253-55, his conclusion that petitioner is procedurally barred arises from only one paragraph of analysis that suggests no uncertainty as to his ruling, id. at 250. Judge Chin noted that the New York Appellate Division had determined that El waived his claim under state law by not objecting contemporaneously to the trial court's sentence, and that this constituted "an independent and adequate state ground that precludes federal habeas review." Id. at 250. He also noted that petitioner had made no effort to show cause and prejudice so as to excuse that waiver. Id. (citing Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir.1999)). Absent a showing of cause and prejudice, it is settled law that an independent and adequate state law ground for a state court conviction cannot be disturbed on habeas. See Coleman v. Thompson, 501 U.S. 722, 729-31, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

However, even where the District Court has declined to issue a COA, this Court may nonetheless issue a COA if petitioner can make the necessary showing "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484, 120 S.Ct. 1595; see 28 U.S.C. § 2253(c)(1) (permitting a "circuit justice or judge" to issue a certificate of appealability); Eltayib v. United States, 294 F.3d 397, 398 n. 2 (2d Cir.2002) (noting that "28 U.S.C. § 2253 empowers us to grant a certificate of appealability"). "If no express request for a [COA] is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Fed. R.App. P. 22(b)(2). Accordingly petitioner's notice of appeal in this case will be construed as an application for a COA on the procedural-bar issue. See Beatty v. United States, 293 F.3d 627, 630 n. 1 (2d Cir.2002) (construing notice of appeal as an application for a COA); Norde v. Keane, 294 F.3d 401, 409 (2d Cir.2002) (same). Construing petitioner's notice of appeal as such, his request for a COA is denied, and the appeal dismissed.

As indicated above, an independent and adequate state law procedural ground for a petitioner's continued...