Appeal from a judgment of the United States Court for the Southern District of New York, Robert W. Sweet, Judge, denying petition for a writ of habeas corpus alleging denial of trial transcript necessary for direct appeal by indigent prisoner. Vacated and remanded. Judge Meskill dissents in a separate opinion.
Van Graafeiland, Meskill, and Kearse, Circuit Judges.
Petitioner Daniel Fullan, a New York State ("State") prisoner who wishes to appeal in state court from his convictions of state crimes, appeals from a judgment of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982), which alleged that the state appellate court denied him a free trial transcript despite his indigence. The district court ruled that the State was entitled to deny Fullan a free transcript on the ground that his family and friends had raised funds to retain appellate counsel for him. Fullan contends that the district court erred in failing to hold that the state court rule granting free transcripts only to indigent appellants who prosecute their appeals pro se or with assigned, rather than retained, counsel violates an indigent defendant's rights under the Fourteenth Amendment to the Constitution. To the extent indicated below, we agree, and we vacate and remand for further proceedings.
In January 1988, following a jury trial in State Supreme Court, Queens County, Fullan was convicted of second degree murder, kidnaping, and robbery; he was sentenced to a prison term of 45 years to life and is currently incarcerated. He is attempting to appeal the judgment of conviction to the State's Appellate Division for the Second Department ("Second Department"). Fullan's family and friends raised $10,000 to retain an attorney to represent him on appeal.
Though not needing assigned counsel, Fullan applied for leave to appeal as a poor person in other respects, asking the court to dispense with printing and to provide his counsel with a free copy of the trial minutes. The Second Department summarily denied Fullan's motion, but stated that the denial was without prejudice to a renewed motion showing his financial condition.
Fullan filed a new motion, supported by his detailed affidavit stating that $27,500 had been paid to his trial counsel and that this sum had been raised by liquidating his total net worth and by borrowing; that he had no assets left other than approximately $360.31 in his commissary account at the Clinton Correctional Facility; that he had received no money while incarcerated; and that the $10,000 paid to retain his appellate counsel had been raised by his family and friends. This motion too was denied summarily; no reasons were stated. Leave to appeal to the New York Court of Appeals was denied on the ground that the Second Department's ruling was not appealable.
In August 1988, Fullan filed his present petition for habeas corpus in the district court, contending that the Second Department's denial of his motion without a hearing and its refusal to provide him with a free copy of the transcript of his trial minutes denied him appellate review, in violation of his rights to due process and equal protection. He named as respondents the Justices of the Second Department and the State's Commissioner of Corrections. He asked that the Second Department be ordered to provide him with a free transcript, or, if it refused, that the State be ordered to release him from prison. The court directed respondents to answer or move against the petition.
Respondents, in effect, moved to dismiss. An affidavit of a State Assistant Attorney General stated that Fullan's trial had occupied some seven trial days and that a transcript, assuming a 700-page record, would cost $962.50. An affidavit of the Clerk of the Second Department explaining that court's denial of Fullan's motions stated, in pertinent part, that the Second Department
annually grants poor person relief in approximately 1200 appeals. We have attempted to ascertain from the Office of Court Administration and from the Administrative Judge of the Criminal Courts the amount expended annually to provide minutes to defendants who have been granted poor person relief, but have been informed that such information is not maintained. However, from the large number of such determinations granted each year, it is obvious that the cost is very high.
The Justices were concerned because defendant was able to pay $27,500 to retained trial counsel and $10,000 to retained appellate counsel but did not attempt to allocate any funds for the transcripts.
The Justices of the Appellate Division believe that an application such as that filed by counsel would seem to come with ill grace, when the result would be that counsel receives $10,000 for handling the appeal, but the taxpayers of this state would have to bear the cost of paying for the transcript.
In an Opinion dated January 20, 1989 ("Opinion"), the district court denied Fullan's petition, stating that
no authority has been cited to establish that the Constitution requires a state to provide free trial minutes to a defendant who has access to substantial funds for purposes of appeal. Fullan, whose family and friends have raised $10,000 for his appeal, is in no different a position than the defendant who has $10,000 of his ...