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January 25, 1978

EUGENE S. LeFEVRE, Supt. of Clinton Correctional Facility, Defendant

The opinion of the court was delivered by: WERKER


 HENRY F. WERKER, District Judge.

 This is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254 (1970) by Frank Micelli, an inmate at the Clinton Correctional Facility in Dannemora, New York, who is presently serving a term of imprisonment imposed following entry of a plea of guilty. Micelli raises two contentions in his petition. He argues, first, that the sentencing judge exceeded the bounds of due process by taking into consideration matters going beyond the single count to which he entered a negotiated plea; second, that the State acted unconstitutionally in refusing to allow him an appeal from the judgment of conviction (based upon his conceded failure to file a notice of appeal within the required time). For the reasons stated below, I hold that both of these claims are without merit.


 In August of 1974, Micelli was charged in a seven-count indictment with, among other things, having attempted to murder Emilio Santana and Geraldine Medori on or about August 2, 1974. Subsequently, Micelli was also charged with bail jumping after having failed to report as required to the Criminal Court of the City of New York on August 7, 1974. Herbert Adlerberg, Esq. was appointed to represent Micelli, and in accordance with Mr. Adlerberg's advice on December 5, 1975 Micelli pleaded guilty to Count Five of the initial indictment in exchange for the dismissal of all remaining charges against him. Count Five charged Micelli with Assault in the First Degree, a Class C felony punishable by an indeterminate sentence with a maximum term of fifteen years. N.Y. Penal Law §§ 70.00, 120.10 (McKinney 1975).

 Micelli was sentenced to a term of eight years on January 8, 1975. Just before pronouncing sentence, the sentencing judge, Criminal Court Judge Irving Lang, observed without objection from counsel that Micelli had "shot two people in this case." Micelli alleges that when Judge Lang made this comment he "hastened to have his counsel seek a clarification with the Court, which counsel did not do." Micelli further alleges that he signed a "prepared" notice of appeal "immediately following the imposition of sentence," although the sentencing minutes provided this court reflect no more than that he was advised at that time of his right to bring an appeal.

 Micelli did not submit a formal notice of appeal to the Appellate Division, First Department, until April of 1976, some fifteen months after he was sentenced. It is not disputed that by that time it was plainly untimely. Micelli says that he did not file the notice at an earlier time because he mistakenly thought that his attorney had already done so. He does not allege, however, that he ever asked his attorney to file a notice of appeal on his behalf and Mr. Adlerberg has submitted an affidavit in which he states that he was never requested to do so. Mr. Adlerberg adds that had such a request been made, a notice of appeal would have been filed with the Appellate Division.

 There is nevertheless some suggestion in the record that Micelli thought an appeal was pending. Specifically, in November of 1975, and again in February of 1976, Micelli submitted to the Appellate Division affidavits for leave to proceed in forma pauperis and for the appointment of counsel. Micelli also alleges that he wrote a letter of inquiry to the Clerk of the Appellate Division after receiving no response to his applications, that in March of 1976 he learned for the first time from the Appellate Division Clerk that no notice of appeal had been filed and that he therefore submitted a notice of appeal in April of 1976, accompanied by an affidavit setting forth the facts which he felt excused the lengthy delay. That notice of appeal was rejected by order of the Appellate Division dated May 13, 1976.

 Thereafter, Micelli pursued two alternative avenues to an appeal from his conviction and sentence. First, on June 29, 1976, he filed a motion to be resentenced pursuant to People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130 (1969). In Montgomery, the Court of Appeals held that a defendant "should be resentenced so that his time to appeal will run anew" if he is able to establish that his failure to appeal resulted from omissions by his counsel. 24 N.Y.2d at 134, 299 N.Y.S.2d at 161. Judge Lang denied Micelli's Montgomery motion in September of 1976, finding that he had demonstrated neither that his failure to appeal was attributable to the actions of his counsel, nor that he had a viable appellate issue. Second, Micelli moved pursuant to N.Y. Crim. Proc. L. ("CPL") § 460.30 (McKinney 1971) for an extension of time within which to take an appeal. That motion was denied by the Appellate Division "without prejudice to an application for Montgomery relief" -- the court evidently having been unaware that Micelli had made an earlier Montgomery application to Judge Lang.


 It is the contention of the State that Micelli cannot bring his petition before this court because he has failed to exhaust available remedies and because he has deliberately waived the opportunity to present his federal claims to a state tribunal. Neither of these asserted grounds has merit.

 A petitioner is deemed not to have exhausted state remedies "if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). However, Micelli no longer has an appeal available from the denial of his Montgomery motion since no certificate granting leave to appeal that decision was sought within the required time. CPL § 450.15 (McKinney 1971); Rules of the Appellate Division, First Department, § 600.8(d)(1) (McKinney 1976). And an appeal from the Appellate Division's order denying an extension of time within which to file a notice of appeal is also unavailable for the same reason. CPL §§ 460.10(5)(a) and 460.20 (McKinney 1971). Although Micelli could conceivably have attempted to appeal from the denial of his Montgomery motion, comity would not be advanced by requiring such an action inasmuch as the Appellate Division had already had an opportunity to consider his papers in support of an extension of time for an appeal. Consequently, since Micelli's federal contentions have already "been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). Further, this is not a case in which there has been a deliberate attempt to bypass the state judiciary. See, e.g., Fay v. Noia, 372 U.S. 391, 438, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963). Indeed as has been noted Micelli made more than one attempt to present his arguments to the Appellate Division on direct review. If the state courts did not consider Micelli's federal contentions, it cannot be said with any degree of certainty that this occurred "due to [Micelli's] failure to raise them there as required by state procedure." Wainwright v. Sykes, 433 U.S. 72, 45 U.S.L.W. 4807, 4812, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Rather, Micelli's failure to raise his objections at the time of sentence or on appeal results not from any conscious determination on his part, but from the conduct (or inaction) of his appointed counsel -- if his factual assertions are accepted.

 Turning to Micelli's contention that he should have been permitted to appeal, or at least should have been granted a hearing on his allegation that he failed to file a timely notice because of his attorney's misrepresentations, Montgomery is of course the basis upon which such a claim would be made in state court. In that case, the New York Court of Appeals observed that:

every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process required that the right not be dissipated either because the defendant was unaware of its existence or counsel failed ...

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