Appeal from a denial of a petition for a writ of habeas corpus in the Southern District (Daronco, J.), for failure to exhaust state remedies.
Lumbard, Cardamone, and Pratt, Circuit Judges.
On August 27, 1987, Homer Aki Mathis filed a petition for a writ of habeas corpus in the Southern District alleging that the state's five-and-one-half year delay in deciding his appeal constituted a denial of due process. By judgment entered September 25, 1987, Judge Daronco dismissed the petition for failure to exhaust state remedies. The district court granted petitioner's request for a certificate of probable cause.
Mathis contends that exhaustion of state remedies is not required because (1) the delay was attributable to the state's court system and (2) there was an absence of available state corrective process, and that process, even if available, would have been ineffective in protecting his rights. He further points out that his numerous letters to the Appellate Division of the First Judicial Department alerting it to the delay satisfies the exhaustion requirement. Because we agree with petitioner that he exhausted state remedies to the extent they were available and effective, we reverse.
On May 28, 1981, Mathis was found guilty, after a jury trial in New York County, of four counts of robbery in the first degree. He was sentenced on October 5, 1981, to four concurrent terms of ten to twenty years.
Mathis filed a notice of appeal on October 13, 1981. On November 17, the Appellate Division granted his request to prosecute his appeal as an impoverished individual, directed the trial court stenographers to produce two copies of the trial transcript within 20 days, appointed the Legal Aid Society to act as appellate counsel, and extended the time to perfect the appeal until 120 days from the filing of the record.
The trial minutes were not filed for over 15 months. During this period Mathis wrote a number of letters to Legal Aid inquiring about the status of the case and asking why no attorney had been assigned to it. Legal Aid responded only that it had not yet received the minutes. About one month after the complete minutes were filed on March 2, 1983, Legal Aid received a copy.
Legal Aid had represented Mathis's co-defendant at trial. Consequently, on April 7, 1983, Legal Aid notified Mathis that it had "recently discovered" a conflict of interest and that it would ask the Appellate Division to be relieved as assigned counsel from the case.
On May 17, 1983, the Appellate Division granted Legal Aid's request and selected Peter F. Anderson from the 18-B panel, a list of lawyers who handle appeals for a fee, to represent Mathis. The trial minutes were forwarded to Anderson later that month. Five months later, on October 14, 1983, Anderson sent Mathis a brief letter promising to file the appeal within the next three months.
On October 31, 1983, the Deputy Clerk of the Appellate Division informed Mathis that his appeal was to be placed on the dismissal calendar. By letter dated November 1, 1983, Mathis requested "an enlargement of time" to file the brief and asked the court to "get in touch with [his] councel [sic] and inform him of this particular situation. . . ."
After writing several unanswered letters to Anderson about the appeal and enlisting the aid of the inmate legal service, Mathis contacted the Appellate Division and asked the Clerk to look into the delay. The Clerk responded only that his letters were being forwarded to Anderson.
Since no brief had been filed by Anderson, the Deputy Clerk informed Mathis that his appeal was again to be placed on the dismissal calendar as of June 7, 1984. Mathis wrote a letter to the court, dated May 24, 1984, explaining that the delay was due to Anderson's inaction and asking that Anderson be replaced. Six weeks later, upon the court's own motion, Anderson was replaced with another ...