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July 25, 1991


The opinion of the court was delivered by: Elfvin, District Judge.


Presently before the Court, in this proceeding under 28 U.S.C. § 2254, is the petitioner's application for a writ of habeas corpus. This Petition is based on the claimed excessive delay experienced by the petitioner in awaiting the perfection and the resolution of his appeal from a state court criminal conviction. For the reasons set forth below, this Court will deny the Petition. However, because this Court also finds that the petitioner well may have been deprived of certain constitutionally-secured rights, he will be permitted to recast this proceeding as an action pursuant to 42 U.S.C. § 1983 for damages arising out of claimed violations to his civil rights.

The Petition was filed with this Court November 3, 1988. By Order dated November 29, 1988 the matter was referred to Magistrate Judge Edmund F. Maxwell for review and a report containing findings of fact, conclusions of law and a proposed disposition of the case. See 28 U.S.C. § 636(b)(1)(B). The facts, as set forth by the Magistrate Judge in his January 14, 1991 Report and Recommendation ("R & R") are summarized below.

On August 9, 1985 in the Supreme Court of the State of New York, Erie County, the petitioner was convicted of manslaughter in the first degree and criminal possession of a weapon in the third degree. He was sentenced to seven to twenty-one years on the manslaughter count and one and a half to four years on the weapon count, such sentences to be served concurrently. It appears that a notice of appeal was filed pro se by the petitioner August 12, 1985. The appeal remained dormant until April 22, 1987 when the petitioner wrote to the Appellate Division inquiring about his appeal. On April 28, 1987 petitioner's retained trial attorney moved on the petitioner's behalf to proceed in forma pauperis; the petitioner made a similar application pro se May 9, 1987. Orders assigning the Legal Aid Bureau of Buffalo, Inc. ("the Bureau") were entered May 27, 1987 and August 4, 1987.*fn1

On June 16, 1987 and again on September 17, 1987, the petitioner was informed by John Ziegler, Esq., Senior Staff Attorney of the Appeals Unit of the Bureau, that the Bureau had been assigned to represent the petitioner on his direct appeal but "[b]ecause this office is assigned to represent a great number of appellants, it will be some time before we will reach your case."

On December 14, 1987 the petitioner received a letter from Robert Hallborg, Esq., a staff attorney at the Bureau, explaining the two Appellate Division orders assigning the Bureau. Hallborg indicated that he had requested the Appellate Division to vacate the second order of assignment thereby giving the petitioner an earlier date of assignment. Hallborg went on to state:

    "I have not been assigned to your case. Appeals
  are assigned in chronological order based on the
  date the appeal was assigned to Legal Aid, not, I
  regret to say, on the basis of the judgement [sic]
  date. This is most unfortunate for your case. For,
  though your judgement date is August 9, 1985, your
  appeal was not assigned to us until nearly two
  years later, May 27, 1987. All those cases
  assigned to us before yours will be perfected
  before yours.
    "In addition, due to years to [sic] under
  funding, the Legal Aid Bureau has not been able to
  hire enough appeal attorneys to keep up with the
  number of appeals assigned to us. This has
  resulted in a severe backlog. We estimate our
  backlog now to be 2 1/2 years from date of

As stated above, the petitioner commenced the instant proceeding November 3, 1988 and on December 16, 1988 counsel was assigned to represent him herein. On April 21, 1989 an Amended Petition was filed.

On April 27, 1990 the Appellate Division affirmed petitioner's conviction. Leave to appeal to the New York Court of Appeals was denied June 22, 1990.

The petitioner's sole claim herein is that the nearly five-year delay between his filing of a notice of appeal and the Appellate Division's affirmance of his conviction was an unconstitutional denial of his due process rights. The respondent has raised three pertinent defenses — viz., failure to exhaust state remedies, the inappropriateness of a habeas corpus petition, and failure to join necessary parties.

The respondent asserts that the petitioner failed to exhaust all of his state court remedies prior to bringing the instant proceeding. See 28 U.S.C. § 2254(b). It is clear that, where a prisoner's repeated requests — to state court and appointed counsel — to have his appeal perfected are met by failure, the prisoner need not take additional steps in state court before he may bring a federal court proceeding. Simmons v. Reynolds ("Simmons"), 898 F.2d 865, 867-868 (2nd Cir. 1990); see also Brooks v. Jones, 875 F.2d 30, 31 (2d Cir. 1989). While the petitioner herein did not make the repeated efforts shown to have been made by the petitioner in Simmons, this Court still finds that, for purposes of seeking federal habeas corpus relief, he adequately exhausted his State court remedies. This petitioner was not required to bring a motion to vacate the trial court judgment, pursuant to section 440.10 of New York's Criminal Procedure Law (i.e., a petition for a writ of error coram nobis) prior to initiating a federal proceeding. See Mathis v. Hood, 851 F.2d 612, 614-615 (2d Cir. 1988). Indeed, it is unclear whether he even could make such application in the Appellate Division. Ibid. Even if he could, the odds are that such motion would have foundered as did his appeal. Accordingly, it appears to this Court that such efforts might well have been futile. See 28 U.S.C. § 2254(b) (exhaustion excused where doing so would be ineffective). Thus, and because the exhaustion doctrine is based upon comity and not jurisdiction — see Wheeler v. Kelly ("Wheeler"), 639 F. Supp. 1374, 1377 (E.D.N.Y. 1986), aff'd, 811 F.2d 133 (2d Cir. 1987) —, this Court finds that further exhaustion by the petitioner was not necessary.

As to the respondent's second defense — viz., that a petition for a writ of habeas corpus is an inappropriate avenue for relief —, this Court finds such argument equally without merit. Clearly, the United States Court of Appeals for the Second Circuit has found habeas corpus proceedings appropriate vehicles for bringing ...

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