The opinion of the court was delivered by: SPRIZZO
Petitioner, Hector Laffosse, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). He was convicted of second degree robbery in New York Supreme Court, Bronx County, on July 20, 1977 and was sentenced to an indeterminate term of imprisonment with a maximum of eight years.
The petition raises two claims for relief. Petitioner's first claim is that he was deprived of his right to counsel and to due process of law when he was placed in an identification lineup without the presence of counsel. His second claim is that he was denied his right to the effective assistance of counsel on his appeal to the Appellate Division, First Department.
After his conviction, petitioner was assigned counsel to assist him in the preparation of his appeal. In November 1979, approximately nine months after his appointment, the attorney filed a three page brief in which he moved for permission to withdraw as appointed counsel for petitioner pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967).
Shortly thereafter, petitioner submitted a pro se "Motion for Enlargement of Time to Perfect Appeal," in which he complained of his attorney's behavior in prosecuting his appeal and claimed that he had thereby been deprived of his Sixth and Fourteenth Amendment rights.
On April 3, 1980, the appellate division denied counsel's motion to be relieved, without directly addressing the issues raised by petitioner's pro se motion. People v. Lafosse, 75 A.D.2d 508, 426 N.Y.S.2d 744 (1st Dep't 1980). The Court rejected the Anders brief submitted by petitioner's attorney and stated that:
We note that Sandoval, Wade and Huntley hearings were conducted on a motion to suppress statements made by the defendant and evidence concerning a pre-indictment and pre-arraignment photo showup and lineup, and that the trial took 2 1/2 weeks with an 1100-page record. Although we do not intimate that such hearings and record would necessarily reveal reversible error, it is difficult to believe that after so long a trial and hearings a mere perfunctory listing of the points and case citations sufficiently demonstrates compliance with the guidelines outlined in People v. Saunders, 52 A.D.2d 833, 384 N.Y.S.2d 161. . . .
Id. at 509, 426 N.Y.S.2d at 745. The court ordered the attorney to "serve and file an adequate brief and such additional documentation as is appropriate" and indicated that "[i]f upon a full study counsel shall continue to be of the opinion that there are no nonfrivolous issues to be asserted, he may so state and renew his motion to withdraw." Id., 426 N.Y.S.2d at 745.
Petitioner's attorney then filed a second Anders brief in which he renewed his application to withdraw as counsel. That brief was essentially identical to the rejected first brief, except for the inclusion of a string citation to three cases, two citations to the New York Penal Law, and a sixty page outline of the transcript of the trial and pre-trial hearings.
The appellate division accepted that brief and, after also reviewing a pro se brief submitted by petitioner, affirmed petitioner's conviction without opinion. People v. Laffosse, 79 A.D.2d 894, 435 N.Y.S.2d 617 (1980).
By letter dated December 15, 1980, counsel notified petitioner of his right to apply for leave to appeal to the New York Court of Appeals and filed on behalf of petitioner an application for leave to appeal on January 5, 1981. That application was granted by order dated January 26, 1981. The attorney then filed an application for appointment of counsel on behalf of petitioner. The court of appeals granted that application on February 19, 1981 and reappointed the attorney who had represented petitioner before the appellate division. Petitioner then wrote a letter to the court requesting that his attorney be replaced, stating, inter alia, that:
I myself feel that this attorney is not adequate enough to plead my case before the [c]ourt of appeals, as he has proven by the brief that he submitted to the appellate division in my behalf. It would be an undue burden for me to continue this appellate process with a counsel [who] is unable to represent me properly.
Letter from petitioner to Joseph N. Bellacosa, Clerk of the New York State Court of Appeals, dated February 25, 1981. Petitioner's request was granted, and another attorney was appointed to represent petitioner on his appeal.
Before the New York Court of Appeals, petitioner argued that: (1) under state and federal law, his rights were violated when a pre-arraignment lineup was conducted in the absence of counsel; and (2) he was deprived of the effective assistance of counsel on his appeal to the appellate division. The court of appeals consolidated petitioner's appeal with three other cases that also presented the question of whether a suspect has a right to counsel at an investigatory lineup. In a consolidated opinion, the court held that there is no pre-indictment right to counsel at investigatory lineups under either federal or state law. People v. Hawkins, 55 N.Y.2d 474, 487, 450 N.Y.S.2d 159, 165-66, 435 N.E.2d 376, 382-83 (1982). The court rejected petitioner's remaining claim of ineffective assistance of appellate counsel without discussion. Id. at 488, 450 N.Y.S.2d at 166, 435 N.E.2d at 383. Petitioner filed a motion to reargue his claim that he had been deprived of the effective assistance of counsel, but that motion ...