Appeal from order of the United States District Court for the Southern District of New York, Vincent L. Broderick, J., dismissing McGann's petition for a writ of habeas corpus. Order modified.
Feinberg, Kearse, and Winter, Circuit Judges.
Clarence Duke McGann appeals from an order of the United States District Court for the Southern District of New York, Vincent L. Broderick, J., dated January 25, 1988, dismissing McGann's petition for a writ of habeas corpus. The district court approved and adopted the Report and Recommendation of Magistrate Joel J. Tyler, dated October 6, 1987, recommending that the court dismiss the petition due to appellant's unjustified failure to take an appeal in the state courts from his conviction in absentia. For the reasons given below, we modify the judgment of the district court so that the dismissal of the petition is without prejudice.
In August 1981, appellant was charged in the New York State courts with Criminal Possession of a Controlled Substance in the Third Degree and Criminal Possession of a Weapon in the Third Degree. The case was set down for trial in January 1982. On January 22, 1982, appellant informed the trial judge that he wanted to retain new counsel. The court granted an adjournment until January 25th and then an additional one-day adjournment due to the new attorney's lack of familiarity with the case.
On January 26th, McGann was observed by the trial judge and the district attorney in the courthouse, yet he failed to appear for trial. McGann admits that he was in the courthouse and claims that he fled because his newly appointed attorney advised him to plead guilty and because the police "were trying to have him killed." After waiting for appellant's return, the trial court ordered an investigation to locate him. When the investigation turned up nothing, the trial court concluded that appellant had "voluntarily absented himself" from the trial and that the state had made a diligent effort to locate him. On those grounds, the judge ordered appellant tried in absentia.
In February 1982, appellant was convicted in absentia, after a jury trial, of the two offenses with which he had been charged, and was sentenced in absentia to concurrent, indeterminate terms of from 8 1/3 years to 25 years and 2 1/3 years to seven years imprisonment, respectively. After appellant's conviction, his attorney served a timely notice of appeal on the Bronx District Attorney's office on appellant's behalf, but apparently never filed it in the Bronx County Supreme Court.
In March 1983, more than a year after appellant's conviction in absentia in New York, he was arrested in Pensacola, Florida while a warrant issued by the State of New York was outstanding. After his capture in Florida, he was convicted for weapon and narcotics possession in Florida and sentenced to ten years in prison there.
In July 1983, appellant filed a pro se motion pursuant to New York's Criminal Procedure Law § 440.10, to vacate his New York conviction. The motion was denied. In January 1984, appellant's new counsel moved to vacate the judgment or to have a hearing to determine whether the judgment should be vacated pursuant to Criminal Procedure Law § 440.10 on the grounds that the trial court lacked jurisdiction of the case; material evidence used in the trial was obtained contrary to the New York and United States Constitutions; and the judgment was obtained in violation of the defendant's constitutional rights.
In May 1984, the Supreme Court of the State of New York, Bronx County, Silverman, J., denied on procedural grounds appellant's motion to vacate the judgment. In its order, the trial court held that Criminal Procedure Law §§ 440. 10(2)(b) and (c) precluded the court from entertaining the motion.
Instead of appealing the trial court's order, appellant sought a writ of mandamus from the Appellate Division, First Department compelling the lower court to rule on the substance of appellant's motion to vacate the judgment. In December 1984, the Appellate Division unanimously denied appellant's application, and then denied his petition to reargue in January 1985.
In October 1986, appellant petitioned the federal district court for a writ of habeas corpus. The petition realleged, among other things, the substantive claims that were denied on procedural grounds by the state court. The petition was referred to Magistrate Tyler by the district court, and in October 1987, the magistrate reported to the court and recommended that it deny the writ and dismiss the petition. The magistrate reasoned that appellant had forfeited his right to raise his federal constitutional claims in a habeas corpus proceeding in federal court due to his unjustified failure to pursue a direct state court appeal of his 1982 conviction. In January 1988, Judge Broderick approved and adopted the magistrate's Report and Recommendation, and in May 1988 denied appellant's motion for a rehearing.
In December 1987, appellant was released from prison in Florida and immediately rearrested pursuant to the New York detainer. Appellant was returned to New York in March 1988, and his sentence in absentia was executed in the Supreme Court of the State of New York, Bronx County, Hecht, J. By this time, as already indicated, appellant had filed his habeas corpus petition in the federal district court, and that petition had been dismissed by Judge Broderick. Nevertheless, appellant continued to seek relief in the state courts; in April 1988, he filed a timely notice of appeal in state court from the state ...