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BOOKER v. KELLY

May 30, 1986

WILLIAM ARTHUR BOOKER, JR., Petitioner,
v.
WALTER R. KELLY, Superintendent of Attica Correctional Facility, Respondent, and HOWARD R. RELIN, District Attorney of Monroe County, Intervenor



The opinion of the court was delivered by: TELESCA

MICHAEL A. TELESCA, United States District Judge

DECISION and ORDER

 William Booker, who is presently incarcerated at the Attica Correctional Facility, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the petition is dismissed on the grounds that Booker has failed to exhaust State remedies.

 BACKGROUND

 Booker was convicted following a jury trial on January 21, 1983 of robbery in the first degree, criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, grand larceny in the third degree, and assault in the second degree. On April 4, 1983, he was sentenced to an indeterminate term of incarceration of 12 1/2 years to life.

 Booker filed a notice of appeal on April 4, 1983, more than three years ago. On December 5, 1983, eight months later, the Appellate Division, Fourth Department assigned the Monroe County Public Defender to represent Booker on his appeal. On January 18, 1984, more than two years ago, the Appellate Division substituted Nigos Karatas, Esq., as attorney for Booker on appeal.

 It has now been more than three years since Booker filed his notice of appeal, and more than two years since Nigos Karatas was appointed as his appellate counsel. Yet the District Attorney now informs this Court that no brief has yet been filed on Booker's behalf, and that the appeal is still pending before the Appellate Division.

 In this federal habeas corpus petition, Booker does not seek to challenge the constitutionality of his judgment of conviction. Nor does he ask this Court to decide the constitutional claims that he has intended for several years to present to the Appellate Division on direct appeal from his conviction. Rather, like the petitioner in Harris v. Kuhlman, 601 F. Supp. 987 (E.D.N.Y. 1985), Booker concedes that he is "raising only the issue of the interminable wait for his appeal," which he contends is itself a denial of his constitutional rights of due process and equal protection (Petitioner's Memorandum of law at 16). Booker maintains that he is now being held in custody unlawfully, on the grounds that the prolonged delay in the disposition of his appeal has (1) denied him effective assistance of appellate counsel, and (2) impeded his effective access to the appellate process. On the basis of those two claims, Booker contends that his continued custody violates the Constitution, regardless of whether the original judgment of conviction was lawfully obtained.

 DISCUSSION

 Booker concedes in his petition and memorandum that he has never presented to the courts of New York State his contention that he was denied an asserted federal constitutional right by the undue delay in the processing of his appeal. *fn1" That claim, like any other claim for federal habeas corpus relief, is subject to the rule requiring exhaustion of State remedies. Roberson v. State of Connecticut, 501 F.2d 305, 309 (2d Cir. 1974). Consequently, there is no question that Booker has failed to exhaust the remedies available in the courts of New York, which ordinarily will require dismissal of the petition without prejudice. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).

 Under 28 U.S.C. § 2254(b), a State prisoner may apply for habeas corpus without exhausting State remedies if "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." Booker argues that his case satisfies this narrow exception to the exhaustion doctrine, since he has waited more than three years since the filing of his notice of appeal for a brief to be prepared on his behalf by his appointed appellate counsel. *fn2" Booker asserts that this delay reflects a fundamental inadequacy in the appeal process, which has effectively blocked his ability to exhaust state remedies. (Petition at P 13.)

 In Ralls v. Manson, 503 F.2d 491, 493-4 (2d Cir. 1974), the Court of Appeals held that a three and one-half year delay in processing a Connecticut prisoner's criminal appeal, though deplorable, was "not the equivalent of a complete absence of effective state appellate process and therefore does not excuse the failure to exhaust state remedies." In reaching that conclusion, the Court of Appeals noted that the State of Connecticut provided procedural remedies for expediting the disposition of criminal appeals. Id., at n. 5. Booker attempts to distinguish the Ralls holding on the grounds, among others, that the New York State Appellate Division, Fourth Department, offered no similar mechanism at the time of his conviction. Yet even if that were the case, it would not follow that there was "a complete absence of effective state appellate process," id., as long as the prisoner "has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c) (emphasis added). *fn3"

 Under New York law, it appears that the proper vehicle for raising a claim of ineffective assistance of appellate counsel is an application for a common law writ of error coram nobis, as three judges of the New York Court of Appeals concluded in People ex rel. Douglas v. Vincent, 50 NY2d 901, 904-6, 431 N.Y.S.2d 518, 409 N.E.2d 990 (1980) (Meyer, J., dissenting on other grounds). Since Booker seeks to question the Appellate Division's appointed counsel and their failure to adequately supervise his conduct, the application should be presumably addressed to that Court, asking that it either entertain the writ itself or grant petitioner permission to file the writ in the trial court. Id. Coram nobis is the proper remedy for a criminal defendant alleging that, "because of his attorney's failure to follow through on an appeal, he was in practical effect denied access to the appellate court." People v. Adams, 12 NY2d 417, 419, 240 N.Y.S.2d 155, 190 N.E.2d 529 (1963); see also, People v. Callaway, 24 NY2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128 (1969). It is well settled that one wrongfully prevented from taking or perfecting an appeal from a criminal conviction by the inaction of his assigned appellate counsel is entitled to judicial redress by way of coram nobis "where no other avenue of judicial relief is available." Adams, supra, 12 NY2d at 420.

 If there is any merit to Booker's constitutional claim that his access to the appeals process has been effectively blocked, he obviously could not rely on his direct appeal to obtain effective redress for that claim. Since no avenue of judicial relief appears to be available to Booker other than a common law writ of error coram nobis, it is quite likely that the Appellate Division would be willing, on the basis of considerations of practicality and necessity, to consider such a petition on its merits despite the pendency of his appeal. Although the availability of that procedure may not be completely certain under New York law, see Douglas, supra, I cannot conclude that such an attempt by Booker in this case ...


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