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WALLACE v. SMITH

January 4, 1995

DARRYL WALLACE, Petitioner, against CARL SMITH, Superintendent, Marcy Correctional Facility, and ROBERT ABRAMS, Attorney General of New York, Respondents.


The opinion of the court was delivered by: FREDERIC BLOCK

 Petitioner Darryl Wallace ("Wallace") brought this habeas corpus petition pursuant to 28 U.S.C. ยง 2254. For the reasons set forth below, the Court concludes that Wallace's status as a fugitive from justice warrants dismissal of the petition.

 I.

 FACTS

 On April 19, 1989, Wallace was convicted in New York State court of criminal possession of a controlled substance in the third degree for possessing with the intent to sell thirty-seven vials of crack-cocaine. He was sentenced to six to twelve years imprisonment. On February 4, 1991, the New York Appellate Division, Second Department, affirmed the conviction, rejecting Wallace's argument that the trial court deprived him of his due process protections by refusing to charge the jury the lesser included offense of criminal possession of a controlled substance in the seventh degree (possession for personal use). People v. Wallace, 170 A.D.2d 468, 565 N.Y.S.2d 557 (2d Dept. 1991). The New York Court of Appeals denied leave to appeal. People v. Wallace, 77 N.Y.2d 1002, 571 N.Y.S.2d 928, 575 N.E.2d 414 (1991).

 On January 10, 1992, Wallace filed his habeas corpus petition. On March 30, 1992, the New York Attorney General filed his opposition papers. On November 7, 1993, Wallace, while on work release from prison, absconded. By letter dated November 16, 1994, in response to a request for a status report, Wallace's counsel informed the Court: *fn1"

 
On November 7, 1993, [Wallace] absconded from work release. I have checked with the New York State Department of Correctional Services, and Mr. Wallace has not been picked up on the absconder warrant and he is not presently in state custody or under parole supervision. I have also contacted the New York City Department of Corrections and Mr. Wallace is not presently in city custody.

 Letter of Nancy E. Little, Associate Appellate Counsel, The Legal Aid Society (Nov. 16, 1994) (footnote omitted).

 II.

 DISCUSSION

 As recently stated by the Second Circuit in Bar-Levy v. United States Dept. of Justice, Immigration and Nat. Serv., 990 F.2d 33, 35 (2d Cir. 1993), "it is well established that courts have the authority to dismiss criminal appeals when their jurisdiction is invoked by a fugitive from justice." The court identified four rationales underlying such a policy:

 
First, a decision respecting a fugitive is effectively unenforceable because the fugitive is beyond the control of the court. . . . Second, loss of appellate review is appropriate because the fugitive flouts the judicial process by escaping. . . . Third, a rule of dismissal has the salutary effects of discouraging escape and promoting the efficient operation of the appellate courts. . . . Fourth, the delay occasioned by the period of a defendant's flight can prejudice the prosecution should a new trial be ordered after a successful appeal.

 Id. (quoting United States v. Persico, 853 F.2d 134, 137 (2d Cir. 1988)).

 While Bar-Levy did not involve a petition for habeas corpus, which is a civil proceeding, the court made clear that the fugitive from justice rule will apply to civil cases: "We have extended the fugitive from justice rule to civil cases in which the appellant is a fugitive in a criminal matter." Id. (citing United States v. $ 45,940 in U.S. Currency, 739 F.2d 792, 796-98 (2d Cir. 1984)). *fn2" Thus, "courts have not hesitated to summarily ...


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