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July 21, 1986


The opinion of the court was delivered by: WEXLER


WEXLER, District Judge

 Petitioner Randy Wheeler, an inmate at the Attica Correctional Facility in Attica, New York filed this petition for a writ of habeas corpus, 28 U.S.C. § 2254, claiming that the failure to decide the appeal of his criminal conviction within five years of sentencing violates the Due Process clause of the Fourteenth Amendment to the United States Constitution. For the reasons stated below, the writ is granted.


 On April 30, 1981, Petitioner Randy Wheeler was sentenced in County Court, County of Nassau, to an indeterminate term of imprisonment of twenty years to life for the felony murder of Ralph Parcelli. Petitioner was incarcerated and filed a timely notice of appeal. Within a week of the sentencing, petitioner requested that the Appellate Division of the New York State Supreme Court, Second Judicial Department (the Appellate Division or Second Department) assign William Sullivan, a sole practitioner in Ithaca, New York, to represent petitioner on his appeal. Sullivan, who had been the District Attorney of Tompkins County, New York from 1972 to 1975, was not on the list of attorneys permitted to accept appeals in the Second Department. Sullivan wrote Irving Selkin, then Clerk of the Appellate Division, indicating that he would accept such an assignment, in part because he was representing Wheeler on another criminal matter then pending in the Third Department. In June 1981, Sullivan was assigned to represent petitioner on the appeal. Sullivan made several requests for the trial transcripts and, on November 29, 1981, they were sent to him.

 Petitioner then attempted to stay in close communication with Sullivan concerning the progress of the appeal. Throughout the balance of 1981 and during 1982 and 1983, petitioner wrote to Sullivan at least twelve times, inquiring about the status of the appeal. Sullivan responded to some of the letters but it appears that, beginning sometime during 1982, he ceased working actively on the appeal due to severe administrative problems. Sullivan had difficulty retaining secretarial and clerical employees on more than a temporary basis and, for up to eight or ten months at a time, his office was unstaffed. Large quantities of mail went unopened and quite often, correspondence was opened and filed without Sullivan's knowledge. During this time, Sullivan made little or no progress on his client's appeal despite the lawyer's representations that the brief was nearly finished.

 As time passed and the appeal was not perfected, petitioner grew impatient with his attorney and, in early 1984, he wrote Sullivan to tell him that he was prepared to ask the Appellate Division to look into the delay. Apparently, Sullivan's response, if any, was not to petitioner's satisfaction, because on August 3, 1984, petitioner wrote the Clerk of the Appellate Division, asking for assistance in connection with the appeal. On August 10, 1984, Arnold Edman, Deputy Clerk of the Appellate Division, wrote Sullivan, asking why the appeal had not yet been perfected. Sullivan did not respond and on October 5, 1984, Deputy Clerk Edman again wrote Sullivan, this time instructing him to comply with the earlier request. Sullivan did not respond to this letter either. Apparently, both letters from the Appellate Division remained unopened in Sullivan's office for some period of time.

 On November 14, 1984, petitioner again wrote the Appellate Division. This letter was treated as a motion for the assignment of new counsel. The District Attorney did not oppose the motion and, on January 15, 1985, the Appellate Division replaced Sullivan with Steven Legum of Mineola, New York. The Order of the Appellate Division did not establish a schedule for perfecting the nearly four-year old appeal but merely directed Sullivan to turn over to Legum all papers in the action.

 Throughout 1985 petitioner wrote Legum on several occasions in an attempt to get the appeal perfected. Legum responded that he was unable to proceed because Sullivan had not yet turned over the trial transcripts or any other papers pertaining to the appeal despite the Appellate Division's Order. Legum attempted to contact Sullivan on several occasions, but other than these attempts to contact Sullivan, however, Legum never sought the court's assistance in obtaining the transcripts.

 Two reasons explain Sullivan's failure to comply with this Order. First, as has already been noted, Sullivan was not opening and reviewing his mail as it arrived. Therefore, he was not even aware of the Appellate Division's Order until March or April of 1985, approximately three months after it was issued and sent to his office. Second, once Sullivan learned of the Order, he was unable to turn over the transcripts because he did not have them anymore. Two years earlier, in 1983, he lent them to an Elmira, New York attorney and had made no subsequent effort to retrieve them. It appears that the original minutes may still be in the possession of the Elmira attorney. Legum ultimately obtained a copy of the trial transcripts in January, 1986, shortly after the instant petition was filed.

 After Wheeler commenced this action for a writ of habeas corpus, this Court ordered respondent to show cause why a writ should not be granted. After respondent filed papers in opposition to the petition, the Court appointed counsel for the petitioner and directed that a hearing be held to determine the cause of the delay in perfecting petitioner's appeal.

 At the hearing, which was held on May 16, 1986, Martin Brownstein, then Acting Clerk of the Appellate Division, revealed that petitioner's appeal is one of several hundred unperfected appeals pending since 1981 and earlier. At about the same time as the 1984 filing of the petition for a writ of habeas corpus in Harris v. Kuhlman, 601 F. Supp. 987 (E.D.N.Y. 1985)(Weinstein, J.), the Appellate Division began canvassing its unperfected appeals and developing special status calendars, beginning with the older cases. Brownstein admitted that progress in perfecting these appeals has been slow, in part because of inadequate administrative facilities. The records pertaining to each of the thousands of appeals filed annually in the Appellate Division are maintained on small index cards. The Appellate Division does not have a master or consolidated calendar of pending appeals. Other than consulting the index card on an appeal, there is no way to obtain information about a particular case. Because the Appellate Division presently lacks more modern equipment, these records must be updated manually and there is no capability for determining the volume or status of the pending appeals. Therefore, aside from the on going recanvassing effort begun in the fall of 1984, the Appellate Division is unable to determine such matters as the number of pending and unperfected appeals, how long these appeals have been pending or remained unperfected, and the various reasons why appeals have not been processed to completion.

 Although the Appellate Division's canvassing efforts have expedited the disposition of many appeals, the entire docket must be reviewed periodically and the canvassing and calendering efforts repeated if calendar control is to be achieved. Brownstein stated that the Appellate Division is now conducting secondary reviews of pre-1983 cases, but because of the volume of unperfected appeals, it is at least a year between the initial canvass of a case and a subsequent recanvass. Because older cases are currently being recanvassed and placed on special status calendars, appeals in which attorneys were assigned in 1983 are only now being reviewed for the first time. 1984 and 1985 appeals have yet to be reviewed. Acting Clerk Brownstein indicated that 1985 appeals should be reached for the first time by the summer of 1986.

 The volume of pending, unperfected appeals is simply staggering. Acting Clerk Brownstein's testimony indicated that in April and May of 1985, the Appellate Division had established special status calendars for some 369 unperfected pre-1982 appeals, with some appeals unperfected since 1977. Although the Appellate Division began the task of reviewing the appeals in the fall of 1984, had it not been for the instant petition, ...

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