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DUNLEAVY v. SMITH

April 9, 1980

George DUNLEAVY, Petitioner,
v.
Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent



The opinion of the court was delivered by: CANNELLA

MEMORANDUM DECISION

Petition for a writ of habeas corpus, pursuant to 28 U.S.C. ยง 2254, is denied.

 FACTS

 The facts underlying this petition, which are undisputed, have been detailed in this Court's Memorandum Decision denying petitioner's earlier petition for a writ of habeas corpus, Dunleavy v. Smith, 78 Civ. 5071 (JMC) (S.D.N.Y. March 7, 1979):

 
On April 22, 1974, petitioner was sentenced by the New York County Supreme Court to concurrent terms of imprisonment of up to 20 years, for attempted murder, 15 years for assault, and 7 years for possession of a weapon, and was thereupon remanded to Mattewan State Hospital for execution of sentence.
 
In 1975, petitioner escaped from Mattewan. He was subsequently captured, tried and convicted of escape. On October 27, 1976, petitioner was sentenced by the Dutchess County Court to a term of imprisonment of 21/2 to 5 years for this offense.
 
Petitioner pro se appealed the escape conviction to the Appellate Division of the New York Supreme Court and in May 1977, while the appeal from his first escape conviction was sub judice, petitioner escaped again. Thereupon, the People moved to dismiss the pending appeal "on the ground that appellant has escaped from custody and is not available to obey the mandate of the court and that he has failed to diligently prosecute the appeal." The Appellate Division granted the motion and dismissed the appeal on June 23, 1977, stating: "It appears that the appellant has fled the jurisdiction of the court."

 Id. at 1-2.

 After petitioner's subsequent recapture and indictment for the May 1977 escape, he moved to reinstate his appeal in the Appellate Division, but the motion was denied. Petitioner was then tried for the escape and was acquitted on the ground of mental disease or defect. Petitioner then moved for reargument of the Appellate Division's refusal to reinstate his appeal, but that motion, too, was denied.

 Thereafter, petitioner filed in this Court for a writ of habeas corpus, on the ground that he had been unconstitutionally deprived of his right to appeal under state law. The respondent opposed the petition on the ground that petitioner had failed to exhaust state remedies, in that he had "failed to appeal the dismissal of his appeal, the denial of his motion for reinstatement, and the denial of his motion for reargument by the Appellate Division to the New York Court of Appeals." Respondent's Memorandum at 5, Dunleavy v. Smith, No. 78 Civ. 5071 (JMC) (S.D.N.Y. filed Jan. 19, 1979). The Court agreed, and dismissed the petition. Memorandum Decision, Dunleavy v. Smith, No. 78 Civ. 5071 (JMC) (S.D.N.Y. filed Mar. 9, 1979).

 Petitioner then sought leave to appeal to the New York Court of Appeals. He received the following reply on June 18, 1979:

 Dear Mr. Dunleavy:

 
Chief Judge Cooke has asked me to reply to your communication of May 13, 1979 by which you seek leave to appeal to the Court of Appeals from the order of the Appellate Division, Second Department dated May 8, 1978 which denied your motion to vacate the order of that court dated June 23, 1977 which had dismissed your appeal from a judgment of County Court, Dutchess County, dated October 27, 1976 and from the order of the Appellate Division, Second Department dated June 29, 1978 denying your motion to reargue the motion decision of May 8, 1978.
 
The Chief Judge has asked me to inform you that, under the applicable provisions of the Criminal Procedure Law (ss 440.10, 440.20, 450.15, 450.90, 460.10, 460.15, 460.20), the ...

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