Simmons v. Beyer

• Decision Date: 05 July 1988
• Docket Number: Civ. A. No. 86-4274.
• Citation: 689 F. Supp. 432
• Parties: Lawrence L. SIMMONS, Petitioner, v. Howard L. BEYER, Superintendent, New Jersey State Prison, Trenton, and W. Cary Edwards, Attorney General of New Jersey, Respondents.
• Court: U.S. District Court — District of New Jersey

689 F. Supp. 432

Lawrence L. SIMMONS, Petitioner, v. Howard L. BEYER, Superintendent, New Jersey State Prison, Trenton, and W. Cary Edwards, Attorney General of New Jersey, Respondents.

Civ. A. No. 86-4274.

United States District Court, D. New Jersey.

July 5, 1988.

Lawrence L. Simmons, Trenton, N.J., pro se.

W. Carey Edwards, Atty. Gen. of New Jersey by Jane E. Hendry, Sp. Deputy Atty. Gen., Acting Asst. Prosecutor, Office of the Passaic County Prosecutor, Paterson, N.J., for respondents.

OPINION

DEBEVOISE, District Judge:

Lawrence L. Simmons petitioned for a writ of habeas corpus. Petitioner argues that he was deprived of the "right to appeal" by counsel's failure to file an appeal on his behalf. He also alleges that he was denied effective assistance of counsel on appeal:¹

"Defendant submits that whenever he wasn't represented by the Public Defender's office, he received assistance from one of the paralegals within the prison. Also, he should not be discriminated against because of what his attorney and Public Defender's office failed to do because he have been trying to secure an appeal ever since his conviction."

Although petitioner has provided only a cursory description of the grounds for his petition for habeas corpus, his entitlement to the writ is clear in light of the procedural nightmares which have to date prevented him from obtaining any appellate review of his convictions for murder, murder while armed, robbery, and conspiracy to commit robbery, which culminated in a sentence of life plus 9-10 years. Petitioner must be granted an opportunity to obtain the substantive review which he has sought in vain at least from the date of sentencing in December, 1977.

Procedural History:

Petitioner was convicted on November 16, 1977 in the New Jersey Superior Court. He was indigent, and was represented at trial by Adolph Gallucio, who was a "pool" attorney assigned by the Public Defender. Final judgment was entered on December 2, 1977, and petitioner was sentenced on December 21, 1977. At that time he was advised of his right to appeal, and advised his pool attorney that he wished to appeal. However, no notice of appeal was filed within the 45-day limit established by New Jersey law. From March 1978 to January 1980, petitioner exchanged correspondence with trial counsel and the appellate section of the Public Defender in attempts to verify the status of his appeal and/or to commence an appeal. Most of this correspondence, which will be discussed in greater detail later in the opinion, is collected in Exhibit 17.

On March 24, 1980, after numerous attempts to verify the status of or, in the alternative, assure the filing of, a state appeal, petitioner filed for a writ of habeas corpus in federal district court in New Jersey. The court denied the petition for failure to exhaust state remedies, rejecting petitioner's argument that delays in the appellate process excused the exhaustion requirement in his case. The state argued in that proceeding that state remedies were still available to petitioner, in the form of an appeal nunc pro tunc, which is in theory available automatically under New Jersey law for criminal defendants who have "within time" requested that an attorney file an appeal on their behalf. The state continued to argue that state remedies were available as petitioner appealed to the Third Circuit and petitioned for certiorari before the United States Supreme Court. (See Exh. 4, Respondent's Brief in Opposition, at 5-6.) On May 21, 1981, the Third Circuit denied petitioner's motion for the provision of pretrial, trial and sentencing transcripts without prejudice to application for such materials in state court. On January 27, 1982, the Third Circuit affirmed the denial of a writ of habeas corpus. On June 7, 1982, the United States Supreme Court denied a petition for certiorari.

On July 12, 1982, petitioner filed in the trial court for post conviction relief. On December 10 and 20, 1982, the trial court held evidentiary hearings at which petitioner was represented by Michael Kingman, designated counsel. (This representation ensued after Judge Marchese wrote to the Public Defender's Office on July 15, 1982 that "I would assume that somebody from your office should be assigned to represent the defendant soon so that he can prepare for the hearing date."²

Uncontradicted testimony was presented by petitioner and his trial attorney to the effect that petitioner had wished all along to appeal and had asked his trial attorney to handle this for him immediately after sentencing. Petitioner testified that he recalled that at sentencing, the trial court "asked Mr. Galluccio as well as myself will a notice of appeal be filed, and Mr. Galluccio and myself said, yeah—Mr. Galluccio stated that he will file a notice of appeal for the Defendant, Lawrence Simmons." (December 10, 1982 Transcript, at 9-10.)³ Petitioner testified that between conviction and sentencing, and again immediately following sentencing, Mr. Galluccio indicated that he would file a notice of appeal. (December 10, 1982 Transcript, at 10.) Petitioner also stated that he had signed some papers at trial counsel's request which were related to an appeal. (Id. at 11.) Petitioner testified that he continued to believe that an appeal had been filed on his behalf until he received letters dated June 27, 1979 from Ms. Rosemary Burke of the Appellate Division of the Superior Court and August 1, 1979 from the Office of the Public Defender. (Id. at 17.) He testified that he remained confused on January 5, 1980, when he wrote to trial counsel asking whether counsel had filed an appeal within time. (Id. at 18-19.) He testified that he first became aware that Galluccio had never filed a notice of appeal when he received a letter from Galluccio dated January 18, 1980. (Id. at 19-20.)

Petitioner's trial counsel testified at a hearing held ten days after petitioner testified, confirming certain aspects of petitioner's account and disputing others. Galluccio denied that he had agreed to prosecute an appeal for petitioner, but testified that he believed that petitioner had indicated immediately upon sentencing that he wished to appeal; he could not recall whether petitioner had also stated his desire to appeal at the time of conviction. (Exh. 19 at 3.) Although he lacked specific recollections as to what he had advised petitioner, he believed based on his typical practice that he would not have agreed to file the appeal on petitioner's behalf and would have told him that the appeal must be handled by the appellate division of the Public Defender, unless he was appointed to continue in the case. He indicated that his practice was to tell defendants that they had 45 days to appeal. Former counsel made no written memorials concerning this conversation or conversations, and took no steps to inform the Public Defender of petitioner's desire to appeal.

Trial counsel could not remember when petitioner next spoke with him concerning a possible appeal, but said that though written communications began in March 1978, after the 45-day period had expired, he believed that there were one or two phone calls before the letter. He testified that "I believe I received the phone call from him while he was either in the Passaic County jail or in the state's prison where he indicated that he wanted to appeal, although there's no memorandum to that effect in my file." (Exh. 19 at 8.) Various letters in the record from and to petitioner's trial attorney, the Public Defender Appellate Section, and the Appellate Division, suggest that petitioner originally believed an appeal had been filed, and that when he found out none had, he was confused about the proper course to follow. See Exh. 17.

Despite communications from the petitioner, his trial attorney, and a prison educational counsellor, Raymond Thompson, the Public Defender never contacted petitioner offering to file an appeal nunc pro tunc. In none of the materials on the record does it appear that either petitioner's attorney or the Appellate Section of the Public Defender warned him either of the exhaustion requirement or of the urgency of his predicament. At the December 20, 1982 hearing on post-conviction relief, the state conceded that "obviously Mr. Simmons, being indigent, had the right to be represented on appeal by the public defender's office, and someone in that office did not pursue the appeal in the proper manner." (Exh. 19 at 15.)

At the conclusion of the first state post-conviction relief proceeding, Judge Marchese noted that petitioner was in effect seeking permission to make a belated appeal, which he was without jurisdiction to grant. He signed an order denying relief, but making the following factual findings, inter alia:

"3. Defendant immediately after imposition of his sentence expressed a desire to appeal to his attorney, who advised defendant that the Public Defender's Office would handle his appeal; 4. Either because he was misled or confused, defendant believed an appeal had been filed on his behalf by his trial attorney, when in fact no Notice of Appeal has ever been filed on defendant's behalf; 5. Defendant has at all times maintained his desire for appeal, as evidenced by his testimony in this matter, and his filing, pro se, of a number of Federal pleadings concerning his conviction in this matter; 6. At no time did defendant knowingly or intentionally waive his right to appeal." (Exh. 20.)

The Court recommended that the Appellate Division permit defendant to appeal. This order was dated July 7, 1983.

In August, 1983, petitioner sought relief from the Appellate Division in the form of leave to file a late appeal nunc pro tunc. The motion was made on or about August 1, 1983, and filed on August 22, 1983. A Notice of Appeal was submitted on August 17, 1983, by the Public Defender. Judge Marchese's findings concerning petitioner's desire to appeal were presented. The Passaic County Pro...