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November 4, 1983

CHARLES ANTHONY GULLIVER, Petitioner, against STEPHEN DALSHEIM, etc., et ano., Respondents.

The opinion of the court was delivered by: KNAPP


This application for a writ of habeas corpus under 28 U.S.C. § 2254 is before us on remand from the Court of Appeals for the Second Circuit to consider whether the rule announced in Martinez v. Harris (2d Cir. 1982) 675 F.2d 51 precludes us from considering petitioner's claim that he was denied effective assistance of counsel on his appeal from a judgment of conviction rendered by the Supreme court of Bronx County.

 The facts constituting the background to this petition are set out in the Second Circuit's opinion, published at 687 F.2d 655, and will not here be restated at length. It is sufficient for present purposes to note that in his last, unsuccessful, attempt to convince the New York courts to grant him a new appeal from his conviction, petitioner filed a paper with the Appellate Division which he entitled a petition for habeas corpus relief. This nomenclature -- as everyone now agrees -- was technically incorrect, since the grievances enunciated and the remedies sought were not amenable to habeas relief. However, it is also agreed that, had the very same paper been filed with the very same court, but bearing the caption "Motion to Reargue," it would have constituted a proper request for the relief sought. It is further agreed that, had petitioner resubmitted the same paper with this change of nomenclature, it would have been considered on the merits by the Appellate Division. *fn1"

 This trifling and correctable mistake became significant when the Second Circuit announced its decision in Martinez v. Harris, supra, which stated that where, as here, a challenge to a conviction was opposed in a state court on both procedural and substantive grounds and was rejected without opinion, a district court faced with a subsequent petition for habeas corpus should assume that the procedural objections had been accepted by the state court, and should thus declare the petitioner to be in procedural default under Wainwright v. Sykes (1977) 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 .

 We think, however, that the logic expressed in the Martinez opinion -- and, indeed, common sense as well -- dictate that we not apply the rule of that case to the situation at bar. The Second Circuit in Martinez noted that the New York Appellate Division, faced with a procedurally faulty petition in a post-conviction proceeding, had the power to consider the merits under the discretionary jurisdiction granted it by N.Y.C.P.L. § 470.15(6)(a). However, it stated that where the petition is denied without opinion

 [W]e do not believe that the Appellate Division's silence evinces an intent to overlook the procedural error. The interest-of-justice jurisdiction under § 470.15 is not invoked routinely. Therefore, we feel justified in assuming that the Appellate Division does not exercise its discretion under that section and decide a case solely on the merits of a claim, unless it says so.

 675 F.2d at 54 (citations omitted).

 In assessing the impact of these words we must bear in mind that the Court was dealing with a highly signifcant procedural default (failure to have made an objection to the asserted error at the time of trial when the error could have been corrected) which, unless excused by the court, would have forever barred any state relief. In such a situation it is quite logical to assume that the Appellate Division (or any New York court) would not excuse the default and proceed to the merits without giving its reasons for doing so.

 However, no such logical assumption is possible in the case at bar. On the contrary, it is much more logical to assume that a busy court, faced with a claim which it considered factually unsubstantial, would overlook the misnomer on a piece of paper and proceed to the merits rather than waste its -- and everyone else's -- time rejecting one piece of paper and telling the pro se to file another. Moreover, our own many years of personal experience with New York appellate courts convince us that no such court would ever dismiss a pro se complaint for a correctable mistake without telling the pro se how to correct it.

 Our conclusion as to the probable behavior of the Appellate Division in this case is, moreover, entirely consistent with the Second Circuit's statement in Martinez that the rule there enunciated

 is limited to the issues of how we construe silence on the part of the Appellate Division, when there is an adequate state procedural ground for sustaining the conviction, as in [Wainwright v.] Sykes. (Emphasis supplied.)

 675 F.2d at 54, n.5.

 As we have noted, in the instant case there was no procedural ground for "sustaining the conviction," but only a ground for rejecting the particular piece of paper before the court. Moreover, the Second Circuit's citation of Sykes is significant. That decision -- and every case of which we are aware which has applied it -- dealt with a procedural default which was incurable and which constituted an absolute bar to any state court relief. We are aware of no case which has applied Sykes or any of its progeny to a curable procedural mistake. Although this distinction has never to our knowledge been explicitly stated, we think it is implicit in cases which have dealt with the issue of procedural default.

 Sykes itself relies upon Henry v. Mississippi (1965) 379 U.S. 443, 13 L. Ed. 2d 408, 85 S. Ct. ...

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