The opinion of the court was delivered by: WEINSTEIN
Petitioner seeks a writ of habeas corpus. 28 U.S.C. § 2254. Several difficult problems are presented. First, whether the failure of petitioner's Court-appointed counsel to perfect his appeal to the Appellate Division within 7 1/2 years is attributable to the state. Second, whether petitioner, having made repeated efforts (through his family and by letters) to contact his attorney during this time and to obtain relief from the Clerk of the Appellate Division, can be said to have exhausted available state remedies. Finally, whether petitioner's due process rights were violated when he was imprisoned for more than half of his sentence and was unable to perfect his appeal in the state courts during that time. For the reasons indicated below, each of these questions is answered in the affirmative and the writ is granted.
Petitioner is presently incarcerated in the Woodbourne Correctional Facility of the New York State Department of Correctional Services. He was committed to this institution on May 23, 1977, having been convicted on each of two counts of robbery in the first degree and of criminal possession of a weapon in the second degree. For the robbery he was sentenced to 10-20 years; for the gun charge he was sentenced to 3 1/2 to 7 years. All terms were to run concurrently, but consecutive to any time petitioner owed for having violated a prior parole.
On May 23, 1977, petitioner filed a Notice of Appeal. The Appellate Division of the Supreme Court of the State of New York, Second Department assigned William Hellerstein of the Legal Aid Society as counsel. N.Y. County Law Art. 18-B, § 722 (McKinney's 1972 & Supp. 1984). Petitioner received notice of this assignment on January 24, 1978 and was informed by the Clerk to direct any further inquiries to counsel.
On February 16, 1978, petitioner, having consulted with fellow inmates, petitioned the Supreme Court of New York to set aside his conviction on the basis of newly-discovered evidence and the ineffective assistance of counsel at trial. N.Y. Crim. Proc. L. § 440.10 (McKinney's 1972). The Supreme Court conducted a hearing on July 16, 1978. It denied his motion on October 16, 1978 and denied leave to appeal.
When the Legal Aid Society learned that one basis for the direct appeal was ineffectiveness of counsel at trial, it sought to be replaced as petitioner's counsel between the Society had defended him at trial. The Court relieved the Legal Aid attorney on December 15, 1978 and assigned New Counsel. New Counsel was a former Assistant District Attorney in Queens County knowledgeable in state criminal law.
On June 19, 1984, seven full years after filing his original notice of appeal, petitioner requested that this Court issue a writ of habeas corpus. A hearing was held on November 16 and 17, 1984.
Upon his appointment, New Counsel received a letter from the Appellate Division, as well as a memorandum specifying his obligations to his client and to the court. The instructions reminded counsel that because he would be appealing a judgment entered after the taking of testimony, counsel had 120 days from the date a certified transcript was filed with the court to bring his appeal on for argument. Any request for an extension of time was to be submitted in writing prior to the expiration of 120 days.At about the same time, New Counsel received a copy of the trial transcript, the minutes of the arraignment and sentencing, and a copy of the Legal Aid Society's motion to be relieved. He did not receive a transcript of the hearing on the 440 motion until 1980. (Apparently he did nothing to expedite preparation of that transcript.) Nor did he ever submit a request in writing for an extension of time in which to perfect the appeal.
When New Counsel was assigned petitioner's appeal, it represented the sixth appeal assigned to him by the court within an eight-month period. Those officials in charge of the 18-B Panel of the court assigned this workload despite the fact that when New Counsel had applied for appointment to the Panel, he noted his lack of experience or training with appeals prior to that time. Following his assignment, New Counsel notified petitioner of his appointment. A hiatus of six years occurred during which he made no effort to perfect the appeal.
At the hearing before this court, New Counsel explained that during this time he suffered from a period of depression caused by the death of close members of his family including his mother, the severe illness of his father, his wife's miscarriage and subsequent pregnancies, as well as the difficulties of starting a law firm. Nevertheless, he was able during that same time to perfect an appeal before the Court of Appeals for the Second Circuit which was strict time controls. It is clear from the hearing that the Second Circuit appeal was given prompt attention by counsl because he knew that the federal Court of Appeals would not tolerate delay. In contrast, the Appellate Division, Second Department did not then monitor delays in appeals.
During this six-year period, New Counsel received no guidance or indication from the Appellate Division that the delay in perfecting his appeal was inordinate. The Chief Clerk of the Appellate Division, Second Department, testified that prior to 1983, there was no mechanism to monitor such delays and the court relied on attorneys to perfect appeals. Tr. at 41. On March 21, 1983, the Appellate Division, Second Department, promulgated a dismissal calendar, comparable to the system already in place in the Second Circuit, designed to rid the court of those cases not brought for hearing "within six months of the filing of the record or papers on which the appeal is to be heard." Ap. Div. R. 670.24 (eff. Mar. 23, 1983) (Pl. Ex. 9). The ...