Taveras v. Smith

• Decision Date: 11 September 2006
• Docket Number: No. 05-5579.,05-5579.
• Citation: 463 F.3d 141
• Parties: Jose Martin TAVERAS, Petitioner-Appellee, v. Superintendent Joseph T. SMITH, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

463 F.3d 141

Jose Martin TAVERAS, Petitioner-Appellee, v. Superintendent Joseph T. SMITH, Respondent-Appellant.

No. 05-5579.

United States Court of Appeals, Second Circuit.

Argued: May 15, 2006.

Decided: September 11, 2006.

COPYRIGHT MATERIAL OMITTED

Ursula Bentele, BLS Legal Services, Inc. (Lisa Jackson, Rachel Kish, Steven Lynch, Bolanle Mayowa, Law Interns, on the brief), New York, N.Y., for Petitioner-Appellee.

Morrie I. Kleinbart, Assistant District Attorney for Robert M. Morgenthau, District Attorney, New York County (Michael S. Morgan, Assistant District Attorney, on the brief), New York, N.Y., for Respondent-Appellant.

Before: CARDAMONE, CALABRESI, and POOLER, Circuit Judges.

CALABRESI, Circuit Judge.

Respondent-Appellant Joseph T. Smith, Superintendent of the Shawangunk Correctional Facility in Wallkill, New York, appeals from a judgment of the United States District Court for the Southern District of New York (Stein, J.), conditionally granting the application for a writ of habeas corpus of Jose Martin Taveras ("Taveras" or "Petitioner") and ordering that Taveras be released from custody unless the New York Appellate Division reinstated his direct appeal within 60 days, and—if Taveras met the relevant indigency requirements—appointed counsel to represent him. See Taveras v. Smith, 388 F.Supp.2d 256, 259 (S.D.N.Y.2005). The question we consider on appeal is whether it was contrary to or an unreasonable application of settled Supreme Court precedent for the New York state court to dismiss the first-tier appeal of a returned fugitive without first appointing counsel— given that under New York law and practice such dismissals are discretionary.

BACKGROUND

I. Criminal Proceedings

On November 29, 1984, Taveras was charged in New York state court with murder and other crimes. After approximately sixteen months in custody pending trial, Taveras was released on his own recognizance.

On May 16, 1988, Taveras failed to appear at his scheduled trial. A bench warrant failed to return him to state custody, and, after conducting a Parker hearing,¹ the trial court ordered Taveras to be tried in absentia. On June 7, 1988, Taveras—though absent—was tried and convicted of two counts of second-degree murder (New York Penal Law §§ 125.25[1], [3] (both intentional and felony murder)), and one count each of attempted second-degree murder (New York Penal Law §§ 110.00/125.25[1]), fourth-degree criminal possession of a weapon (New York Penal Law § 265.02[4]), and second-degree bribery (New York Penal Law § 200.00). On June 29, 1988, Taveras was sentenced, still in absentia, to two concurrent prison terms of 25 years to life imprisonment for the murder convictions, a concurrent term of 8-and-one-third to 25 years imprisonment for the attempted murder conviction, a concurrent term of one year of imprisonment for the weapons possession conviction, and a consecutive term of 5 to 15 years imprisonment for the bribery conviction.²

Immediately following trial, unbeknownst to Taveras, his trial attorney filed a notice of appeal on his behalf. No action was taken on this appeal until, eight years later, Taveras was returned to state court on the 1988 bench warrant. His sentence was executed on December 15, 1997.

II. Procedural & Appellate History

On February 13, 1998, still unaware of the notice of appeal filed for his murder convictions, Taveras moved the New York Appellate Division, First Department, for an extension of time to file a notice of appeal. The state opposed this motion, and on June 16, 1998, the Appellate Division summarily denied Taveras's request. Two years later, on June 6, 2000, Taveras again moved the First Department seeking to reargue the issue of an extension of time in which to file a notice of appeal. He contended that counsel had improperly failed to file one on his behalf and that he had not been informed of the proceedings against him. The state opposed this motion as well, and on July 20, 2000, the First Department denied it summarily.

On September 11, 2000, Taveras, pro se, filed a petition with the District Court for the Southern District of New York for habeas corpus. In it he alleged that he had been denied his Fifth and Fourteenth Amendment rights to appeal his conviction in state court. In the course of preparing its response, the state discovered a copy of the notice of appeal filed on Taveras's behalf immediately after his trial. See Taveras v. Portuondo, 2001 WL 705850 at *1 (S.D.N.Y. June 13, 2001). The district attorney informed the First Department of this filing, and the First Department recalendared Taveras's motions and treated them as applications for leave to prosecute the direct appeal as a poor person and for assignment of counsel. The district attorney opposed these reconfigured motions and cross-moved for dismissal of the appeal. The state argued that Taveras had abandoned his right to appeal by absconding, and that even if the timely-filed notice of appeal were valid, the First Department could have sua sponte dismissed his appeal ten years earlier by its own rules. In addition, the state argued that as a motion for poor person's relief, the filing did not comply with New York state rules requiring a detailed, notarized affidavit. Petitioner did not respond to this cross-motion.

On March 22, 2001—before the federal district court had acted on Taveras's pro se petition—the Appellate Division issued an order reconsidering all its prior decisions concerning Taveras. The court stated, in full:

An order of this Court having been entered on June 16, 1998 denying defendant's motion for an extension of time in which to file a notice of appeal from the judgment of the Supreme Court, New York County, rendered on or about June 29, 1988, and for leave to prosecute the appeal as a poor person, assignment of counsel, and related relief,

And a further order of this Court having been entered on July 20, 2000 denying defendant's motion for reargument/renewal of this Court's order entered on June 16, 1998,

Now, upon the Court's own motion, reconsideration of the aforesaid orders of this Court is granted and, upon reconsideration, defendant's motion, insofar as it seeks leave to file a late notice of appeal, is denied as unnecessary, a timely notice of appeal from the aforesaid judgment having been duly filed by trial counsel on defendant's behalf; and, insofar as it seeks leave to prosecute the appeal as a poor person and for assignment of counsel, the motion is denied.

And respondent having moved for an order dismissing the appeal,

Now, upon reading and filing the papers with respect to the motion, and due deliberation having been had thereon,

It is ordered that the motion is granted and the appeal is dismissed.

Both parties assume that the Appellate Division's dismissal of Taveras's appeal was based on New York's fugitive disentitlement doctrine, because the district attorney's only other, still available, argument for dismissal (concerning untimeliness) was expressly rejected by the court. We accept the parties' assumption, but this, of course,—as will be apparent later—does not mean that in deciding to apply the doctrine the New York court did not consider, at least to some extent, the possible merits of Taveras's appeal.³

Following the Appellate Division's dismissal, the U.S. district court ruled on Taveras's September 2000 habeas petition. See Taveras, 2001 WL 705850. Adopting the report and recommendation of Magistrate Judge Ronald L. Ellis, Judge Stein rejected Taveras's claim that he had been denied the right to appeal. See id. at *3. The court found, however, that Taveras's claim that he had been denied appellate counsel was unexhausted. Accordingly, the district court dismissed that claim without prejudice to its renewal in order to permit Taveras to present the issue to the New York Court of Appeals. See id. at **4-5.

Taveras sought leave from the New York Court of Appeals to file an untimely appeal from the Appellate Division's order denying him counsel. On September 16, 2001, the Court of Appeals granted Taveras permission to file an untimely application. That, now timely, application was denied on December 18, 2001, thereby putatively exhausting Taveras's claim.

Taveras renewed his habeas claim in federal court on December 6, 2002. Magistrate Judge Gorenstein appointed counsel. On March 18, 2003, with leave of the court, Taveras renewed his claim that the denial of his application for counsel and for a free trial transcript by the Appellate Division had violated his due process and equal protection rights under the Fourteenth Amendment.

After further briefing, Magistrate Judge Gorenstein issued a thorough and thoughtful report in which he recommended granting Taveras's habeas petition. See Taveras, 388 F.Supp.2d at 259. He considered and rejected Respondent's renewed exhaustion challenge to Taveras's petition.⁴ Id. at 265-66. He also rejected the state's contention that the Appellate Division properly denied Taveras's request for counsel because Taveras had failed to file an affidavit attesting to indigence. On the merits, Magistrate Judge Gorenstein found that Taveras had been denied his constitutionally-protected right to counsel—a right that was deemed unaffected by the fact that the threshold issue in Taveras's appeal was whether the fugitive disentitlement doctrine should apply. See id. at 271.

Adopting Magistrate Judge Gorenstein's reasoning and recommendation, the district court conditionally granted Taveras's application for a writ of habeas corpus and ordered that Petitioner be released from custody unless his direct appeal to the Appellate Division was reinstated within 60 days of the entry of judgment. District Judge Stein supplemented the magistrate judge's report in order to "especially [] take account of a newly discovered document that further supports the conclusion reached by Judge Gorenstein." He described that contrary to the state's...