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CAMERON v. LEFEVRE

May 22, 1995

HOWARD CAMERON, Petitioner, against EUGENE S. LEFEVRE, Superintendent, Franklin Correctional Facility, Respondent.


The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 Petitioner Howard Cameron seeks a writ of habeas corpus from this Court pursuant to 28 U.S.C. § 2254. Petitioner was convicted in 1991, after two jury trials, of criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02(4)). As a second felony offender, he is presently serving a three-and one-half to seven-year term of imprisonment.

 In his application for collateral relief, petitioner raises two claims. First, he contends that he has been denied his right to appeal, in violation of his due process and equal protection rights, due to an inability to perfect his appeal for almost four years. More specifically, petitioner contends that the court stenographer at his second trial failed to transcribe portions of the trial minutes, and that this failure should be attributable to the State of New York. Second, petitioner asserts that a reconstruction hearing ordered by the New York State Supreme Court, Appellate Division, Second Department, will only serve to delay further the perfection of his appeal. This second claim, however, is no longer relevant, as the Court was informed by the parties, in a letter dated January 30, 1995, that no reconstruction hearing would take place.

 Having reviewed the submissions of both of the parties, and the available record of the state court proceedings, the writ is hereby granted to the extent set forth below.

 BACKGROUND

 Petitioner was charged on August 17, 1990 with one count of criminal possession of a weapon in the third degree, pursuant to N.Y. Penal Law § 265.02(4). A first trial, before the Honorable Gloria Goldstein in New York State Supreme Court, Kings County, was held from March 11 through March 14, 1991. After a full day of deliberations, the jury informed the court that it was deadlocked, and Judge Goldstein declared a mistrial.

 A second jury trial, again presided over by Judge Goldstein, was held from April 17 through April 23, 1991. On April 23, the jury found petitioner guilty of criminal possession of a weapon in the third degree. On May 12, Judge Goldstein sentenced petitioner to a term of three-and one-half to seven-years imprisonment. Petitioner remains incarcerated at the Franklin Correctional Facility pursuant to this judgment of conviction.

 On May 22, 1991, petitioner filed a timely notice of appeal with the New York State Supreme Court, Appellate Division, Second Department. By order of the Appellate Division on July 19, 1991, petitioner was granted leave to prosecute his appeal as a poor person. The Appellate Division ordered the trial court stenographer to furnish promptly the trial transcripts to the Kings County Supreme Court Clerk.

 According to the parties, the following were provided to petitioner: the minutes from hearings conducted on February 28 and March 1, 1991; the trial minutes from April 18, consisting of the parties' opening statements (including the court's sustainment of a prosecution objection as to the scope of the defense witness's testimony), the prosecution's entire case and another evidentiary ruling by the court restricting the scope of the defense witness's testimony; the trial minutes from April 23, consisting of the taking of the verdict; and the sentencing minutes from May 12. It is not clear from the record when exactly the foregoing minutes were provided to petitioner.

 After Finnerty failed to transcribe the missing minutes, the Kings County Court Reporter's Office began requesting the transcripts from him on a monthly basis beginning in November 1991. Subsequent requests were made on December 10, 1991, January 3, 1992 and April 7, 1992, and in May, June, and July 1992.

 At the same time, the Appellate Division Clerk, Martin H. Brownstein, first contacted the Society on January 20, 1992 to inquire as to the reason petitioner's appeal had not been perfected. The Society replied on January 29, 1992 that it had not yet received the full record. Brownstein sent a similar letter on April 20, 1992. The Society replied on May 7, 1992 that it had contacted the Kings County Appeals Clerk to request the minutes. Brownstein subsequently sent letters to the Society on July 20, September 18, November 17, and January 11, 1993. The Society responded to each of these inquiries in turn. On July 24, 1992, the Society notified Brownstein that it was having "difficulty with the same court reporter in other cases," and would pursue contempt proceedings against the reporter if it did not receive the minutes "shortly."

 On October 8, 1992, the Society informed Brownstein that it had served a Demand for Compliance (the "Demand") on Finnerty, and that Finnerty had promised to file the minutes "shortly." The Demand was in fact served on Finnerty on August 17, 1992. On October 16, 1992, Finnerty apparently told the Society that he was not the court reporter assigned to the trial on the dates for which transcripts were missing, and signed an undated affidavit to that effect. According to the Society, however, Finnerty conceded on November 10, 1992 that he was in fact the reporter on those dates. On November 19, 1992, the Society again informed Brownstein that they should have the minutes "shortly." On January 15, 1993, the Society told Brownstein that the Kings County Chief Court Reporter had rejected the minutes filed by Finnerty, and that the Society was preparing contempt proceedings. Finnerty was subsequently terminated. Apparently, however, the Demand that the Society had served on Finnerty on August 17, 1992 had mistakenly listed the wrong dates, and the Society re-served the Demand on February 17 and 19, 1993.

 On March 16, 1993, the Society filed a motion to hold Finnerty in contempt, which was granted by order of the Appellate Division on May 11, 1993. The order gave Finnerty thirty days to purge himself of the contempt by filing the minutes in question with the Kings County Supreme Court Clerk. Finnerty did not produce the missing minutes. On July 13, 1993, the Society served Finnerty with a motion to punish him for his contempt. On November 4, 1993, the Appellate Division again held him in contempt, this time fining him $ 250.00 and sentencing him to 30 days imprisonment. Finnerty served his sentence at the Bronx House of Detention from December 2 through December 31, 1993. Following Finnerty's incarceration, the Kings County Court Reporter's Office told the Society that Finnerty still had possession of the missing notes. The Society attempted to phone Finnerty on March 15, 1994, but found his phone to be out of order.

 Having failed to secure the missing minutes, the Society filed a motion for summary reversal with the Appellate Division on March 31, 1994, seeking to vacate the judgment against petitioner or, in the alternative, to be granted a reconstruction hearing. Subsequent to the summary reversal motion, Jodi A. Catalano, the Kings County Assistant District Attorney who responded to the motion, spoke to the Kings County Principal Court Reporter, Steven Forleo, who advised her that he had attempted to reach Finnerty on numerous occasions. Catalano herself also unsuccessfully tried to reach Finnerty. On May 26, 1994, the Appellate Division denied petitioner's motion for summary reversal, but referred the matter to the Kings County Supreme Court for a reconstruction hearing.

 Petitioner, initially proceeding pro se, filed the instant petition for a writ of habeas corpus on July 13, 1994. The Society informed the Court on October 28, 1994 that it intended to file supplemental materials in support of petitioner's application. Those materials were filed on November 30, 1994.

 In a letter dated January 30, 1995, the parties informed the Court that Finnerty finally released his notes from the trial on September 30, 1994 and that these were transcribed on November 30. Only the minutes from the voir dire proceedings remained missing. The letter further advised that on January 19, 1995, Kings County Supreme Court Justice Lewis Douglass determined that the voir dire proceedings could not be reconstructed. The parties also indicated that they were proceeding with petitioner's appeal and expected the Appellate Division to hear the case on an expedited basis.

 The procedural history of this case having been set forth above, the Court now turns to address whether it may reach the ...


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