The opinion of the court was delivered by: SPRIZZO
Petitioner, Ernest Bullock, seeks a writ of habeas corpus under 28 U.S.C. § 2254 (1976). He is currently in state custody following his conviction on four counts of murder, four counts of first degree robbery, two counts of grand larceny in the third degree, and one count of possession of a weapon as a felony. On January 7, 1975, he was sentenced to two consecutive terms of twenty-five years to life, two additional terms of twenty-five years to life, and seven lesser indeterminate terms all running concurrently.
Petitioner raises only one claim in the instant petition -- that his right to counsel was violated when his appellate counsel failed to apply for leave to appeal to the New York Court of Appeals following an affirmance of his convictions by the Appellate Division, Second Department. The Court finds that the petition must be dismissed for the reasons that follow.
After his two convictions, petitioner's court-appointed appellate counsel filed a consolidated appeal with the Appellate Division, Second Department.
The convictions were unanimously affirmed on April 25, 1977. People v. Bullock, 57 A.D.2d 630, 394 N.Y.S.2d 22 (2d Dep't 1977). His attorney did not apply to the New York Court of Appeals for permission to take a discretionary appeal.
In 1980, petitioner raised his claim of ineffective assistance of appellate counsel for the first time in a pro se motion to the Appellate Division, Second Department for leave to reargue his appeal, pursuant to N.Y. Criminal Procedure Law § 470.50 (McKinney 1971) (hereinafter "CPL"). In that motion, he argued that his right to counsel had been violated by his attorney's failure: (1) to seek leave to appeal to the court of appeals, and (2) to raise all of his meritorious claims in her briefs to the appellate division. The motion was denied without opinion on June 2, 1980.
Petitioner then submitted a pro se application to the New York Court of Appeals seeking leave to appeal both the appellate division's June 2, 1980 order denying his motion to reargue and its April 25, 1977 affirmance of his convictions. Both applications were denied in an order by Judge Fuchsberg dates August 25, 1980 -- the former because it is not appealable, and the latter because it was untimely under CPL 460.30.
Petitioner next sought a writ of habeas corpus in the United States District Court for the Northern District of New York. His pro se petition included a claim of ineffective assistance of appellate counsel which was partly based on his attorney's failure to apply for leave to appeal to the court of appeals.
That petition was dismissed. Bullock v. Henderson, No. 80-CV-864, slip op. at 4 (N.D.N.Y. February 24, 1981)(Foley, J.).
The present petition was filed in November, 1981. It was referred to Magistrate Buchwald for her report and recommendation, pursuant to 28 U.S.C. § 636(b) (1976). Magistrate Buchwald found that petitioner's claim was not exhausted and recommended that his petition be dismissed. Magistrate's Report and Recommendation at 7. She interpreted Judge Foley's opinion as dismissing the ineffective assistance of counsel claim for failure to exhaust state remedies. Id. at 3-4 and n.3. Based on that reading, she concluded that, since petitioner had not raised the claim in state court following Judge Foleys' dismissal, this subsequent petition based on the same claim must also be dismissed on exhaustion grounds. Id. at 7. Her report suggests that petitioner might return to state court and raise his claim by bringing a motion to vacate his conviction pursuant to CPL 440.10. Id. at 4-7.
Both parties have filed objections to the Magistrate's report.
Petitioner argues that his claim was exhausted in 1980 when Judge Fuchsberg dismissed his application for leave to appeal from the June 2, 1980 order of the appellate division denying his motion to reargue his appeal. Respondent agrees with petitioner that the claim is exhausted and contends that it was dismissed by Judge Foley on its merits.
Finally, respondent argues that the petition should be dismissed because it is procedurally barred under New York's Criminal Procedure Law and because Bullock has not alleged the deprivation of a federal constitutional right.
In view of the fact that the parties and the magistrate disagree as to whether Judge Foley's dismissal of this claim was on the merits or on exhaustion grounds, and because the basis for his dismissal is not entirely clear on this record, the Court will, in the exercise of its discretion, determine the exhaustion issue anew.
Petitioner's claim that he was deprived of the effective assistance of counsel because of the failure of his attorney to seek review of his conviction in the New York Court of Appeals was clearly exhausted. The claim was first raised before the appellate division in petitioner's pro se motion for reargument and was denied. Since the denial of that motion is not appealable, see Judge Fuchberg's Order dated August 25, 1980, there was no further recourse available to petitioner in the state court.Moreover, petitioner also referred to the alleged denial of the effective assistance of counsel in 1980 when he sought leave to appeal from the appellate division's affirmance of his convictions and his request was denied as untimely. See Barnes v. Jones, supra, 665 F.2d at 432; see also People v. Gonzalez, 47 N.Y.2d 606, 393 N.E.2d 987, 419 N.Y.S.2d 913 (1979).
Nevertheless, it is clear that this petition must be dismissed on the merits. In Wainwright v. Torna, 455 U.S. 586, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982) (per curiam), the Supreme Court held that the failure of counsel to apply for leave to undertake a discretionary appeal does not constitute ineffective assistance of counsel. Id. at 587-88. Since that is the only claim raised here, this petition must be dismissed.
The petition must also be dismissed for another reason. In Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), the Supreme Court held that when a petitioner commits a procedural error in the state court which precludes state review of a federal constitutional question, federal habeas corpus review is barred unless the petitioner can establish an adequate justification excusing the procedural error and prejudice resulting from an alleged constitutional violation. Id. at 86-87; see Engle v. Isaac, 456 U.S. 107, 129, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). This principle has been applied where the procedural error occurs on appeal as well as where it is committed at the trial level. E.g., Forman v. Smith, 633 F.2d 634, 640 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 68 L. Ed. 2d 204, 101 S. Ct. 1710 (1981).
In this case, petitioner's claim of ineffective assistance of appellate counsel was twice presented to state courts and twice rejected on procedural grounds. In opposing Bullock's motion to reargue his appeal, the State argued, inter alia, that it should be denied as untimely,
and the appellate division denied the motion without opinion. Under such circumstances, this Court must conclude that the state court's denial was on procedural grounds and apply the rule enunciated in Wainwright v. Sykes. Johnson v. Harris, 682 F.2d 49, 51 (2d Cir. 1982); Martinez v. Harris, 675 F.2d 51, 53-55 (2d Cir.) cert. denied, 459 U.S. 849, 103 S. Ct. 109, 74 L. Ed. 2d 97 (1982). Petitioner's later application for leave to appeal from the appellate division's affirmance of his convictions was specifically denied as untimely by Judge Fuchsberg. Those procedural defaults constitute an adequate and independent basis for denying this petition unless petitioner can demonstrate "cause and prejudice." See Wainwright v. Sykes, supra, 433 U.S. at 86-87, 90-91.
It is evident that Bullock cannot satisfy the Wainwright v. Sykes test. Quite aside from the issue of whether there was any adequate justification for plaintiff's failure to comply with state procedural requirements, petitioner cannot possibly demonstrate prejudice resulting from an alleged constitutional violation since, as noted above, a failure to pursue a discretionary appeal does not constitute ...