The opinion of the court was delivered by: KOELTL
JOHN G. KOELTL, District Judge:
Reverend Nathaniel T. Grady petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 based on an alleged violation of his Sixth Amendment right to the effective assistance of appellate counsel. The petitioner argues that his counsel's failure to raise on direct appeal the claim that the indictment was duplicitous constituted unconstitutionally ineffective assistance of counsel. A count of an indictment is duplicitous under New York law if it charges more than one offense.
The relevant factual circumstances relating to Grady's prosecution based on the trial record and the procedural history of Grady's trial, appeal, and collateral proceedings are as follows.
In early Autumn 1983, Reverend Nathaniel T. Grady, Sr., then forty-six years old, was assigned to be the minister of the Westchester United Methodist Church. The Church leased part of its space to the Westchester-Tremont Community Day Care Center in the Bronx, New York City. Grady's job responsibilities included supervision of repairs at the day care center, and starting in December 1983 Grady occupied an office at the day care center adjacent to a classroom for three-year-olds. At the end of March 1984, Grady began building a closet in the classroom for the children to store the cots they used during nap time. Grady was in the classroom working on the closet on a daily basis during the first week of April 1984.
In late April 1984, one of the children at the day care center reported to his mother that he had experienced sexual contact between himself and an adult male. An investigation ensued, conducted by the New York City Police Department and the Federal Bureau of Investigation ("FBI"). Law enforcement officials interviewed children and parents, teachers at the day care center, and Reverend Grady. The FBI conducted thirty days of video surveillance of the classroom and other areas within the day care center, although no evidence of sexual misconduct or abuse was discovered from the surveillance. The investigation revealed evidence of sexual abuse committed against six children, all approximately three years old at the time, usually occurring during nap time at the day care center. The evidence included accounts by the children of their own abuse, descriptions by children of abuse they witnessed perpetrated against other children, statements by the children's parents as to both physical symptoms exhibited by their children and the episodes of abuse their children had related to them, and physiological evidence gathered by a pediatrician and found to be consistent with sexual contact. No teacher or other adult witness testified that they witnessed any of the acts of abuse related by the children.
The Bronx District Attorney initiated the prosecution against Grady on October 9, 1984, when a Grand Jury in Bronx County returned a forty-two count indictment charging Grady with rape, sodomy, and sexual abuse of six children at the day care center over a one- or two-month period earlier in 1984. Grady was tried in New York State Supreme Court, Bronx County from November 1985 through January 1986. The children testified at trial, as did their parents and teachers. In addition to medical evidence, the People submitted the expert testimony of Eileen Treacy on the subject of certain behavioral and psychological symptoms exhibited by victims of child abuse. Reverend Grady testified in his own defense, denying outright all of the charges and insisting he had never interacted with any of the children at the child care center without a teacher present. The defense also offered its own expert witness on child sexual abuse, as well as numerous character witnesses.
On January 20, 1986, after one week of deliberations, the jury convicted Grady on nineteen counts of rape, sodomy, and sexual abuse against five children ranging in age from three to four years old. Justice Bernard J. Fried sentenced Grady on May 1, 1986 to an indeterminate aggregate prison term of fifteen to forty-five years. Grady retained new counsel, ("Appellate Counsel"), to represent him on direct appeal from the conviction. Appellate Counsel prepared an extensive brief presenting six grounds for appeal and reviewing the 5,500 page trial record in detail. Nonetheless, Grady's conviction was affirmed by the Appellate Division, First Department without opinion, People v. Grady, 125 A.D.2d 1011, 508 N.Y.S.2d 359 (1st Dep't 1986), and leave to appeal to the Court of Appeals was denied. People v. Grady, 69 N.Y.2d 880, 507 N.E.2d 1098 (1987).
Grady then submitted a petition for a writ of habeas corpus in New York State Supreme Court, Clinton County, in a proceeding under N.Y. Crim. Proc. L. ("CPL") art. 70 asserting the same claims that were set forth in the earlier federal habeas petition. The Article 70 petition was denied on procedural grounds on January 6, 1989, affirmed by the Appellate Division, Third Department, People ex rel. Grady v. LeFevre, 152 A.D.2d 850, 544 N.Y.S.2d 61 (3d Dep't 1989), and leave to appeal was denied. People ex rel. Grady v. LeFevre, 75 N.Y.2d 702, 552 N.Y.S.2d 108, 551 N.E.2d 601 (1990).
Grady again retained new counsel and moved before Justice Fried to vacate the conviction pursuant to CPL § 440.10. The basis of this motion was the duplicity of the indictment. The court found that Grady's failure to pursue and thereby preserve the duplicity issue on direct appeal was "unjustifiable" and therefore the motion was denied. People v. Grady, N.Y. L.J., Apr. 16, 1991, at 24 (N.Y. Sup. Ct., Bronx Co. Apr. 16, 1991). Grady appealed Justice Fried's decision and petitioned the Appellate Division for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel for failing to have raised the duplicity issue on direct appeal. Both the appeal and the petition were denied by summary order, People v. Grady, 175 A.D.2d 980, 573 N.Y.S.2d 407 (1st Dep't 1991), and application for leave to appeal was dismissed for lack of jurisdiction. People v. Grady, 78 N.Y.2d 1127, 578 N.Y.S.2d 885, 586 N.E.2d 68 (1991).
Grady then filed this second petition for a writ of habeas corpus asserting a single claim based on his former Appellate Counsel's failure to have raised on direct appeal the issue of the duplicity of the indictment. Grady argues that his former counsel elected to omit the duplicity issue from the direct appeal to the Appellate Division, First Department, choosing instead to present a host of far less promising arguments. After the direct appeal was fully submitted to the Appellate Division but before a decision was issued, the New York Court of Appeals had issued its decision in People v. Keindl, 68 N.Y.2d 410, 509 N.Y.S.2d 790, 502 N.E.2d 577 (1986), relating directly to the issue of duplicity. Grady argues that Appellate Counsel refused to bring this intervening authority to the attention of the Appellate Division, even after Grady asked him whether the new decision was helpful to his appeal. Grady also complains that Appellate Counsel declined to mention the intervening case or the duplicity argument in general to the New York Court of Appeals in Grady's request for leave to appeal to the Court of Appeals. Grady argues that he was not afforded effective assistance of appellate counsel because of his lawyer's disregard for the duplicity argument.
This claim of ineffective assistance of appellate counsel was not presented in Grady's first § 2254 petition before Judge Knapp, nor was it included in the subsequent article 70 habeas petition in the New York State Supreme Court. Accordingly, the Respondent challenges this petition as an abuse of the writ. The Respondent also argues that the issue of ineffective assistance of appellate counsel on the basis of duplicity of the indictment is unexhausted because Grady asserts new facts not previously presented in any proceeding in state court. Finally, the Respondent argues that Grady's claim of ineffective assistance of appellate counsel fails on the merits.
Before reaching the merits, there are two procedural arguments raised by the Respondent. The first obstacle Grady must overcome is his failure to have raised his ineffective assistance of appellate counsel argument in his first petition for habeas relief before Judge Knapp. The Respondent argues that the present petition is an abuse of the writ because of this failure.
In McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991), the Supreme Court set out the standard for determining whether a petitioner has abused the writ of habeas corpus. The Court held that a petitioner who raises a new claim in a subsequent petition that could have been raised in the first is subject to having the petition dismissed pursuant to Rule 9(b) of the Rules Governing Habeas Corpus Proceedings. Id., 499 U.S. at 493-96. The Court further held that the cause and prejudice test derived from Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977) should be applied to determine whether a subsequent petition is abusive. Id., 499 U.S. at 493. If the petitioner cannot demonstrate cause and prejudice, or a fundamental miscarriage of justice, the new claim should be dismissed without addressing its merits. Id. See Sawyer v. Whitley, 505 U.S. 333, 338, 120 L. Ed. 2d 269, 112 S. Ct. 2514 (1992); Gayle v. Mann, 966 F.2d 81, 83-84 (2d Cir. 1992).
It is the respondent who must plead abuse of the writ under Rule 9(b) and McClesky by setting forth with particularity the petitioner's history of applications for habeas relief. Rule 9(b) provides:
(b) Successive petitions. A second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.
In this case the Respondent argues that Grady's petition is abusive
because it contains a claim excluded from Grady's first § 2254 petition which was brought before Judge Knapp in 1987. Although Judge Knapp denied that petition on the merits, the Court of Appeals for the Second Circuit vacated that determination and remanded to Judge Knapp with instructions to dismiss the petition for failure to exhaust state remedies. Thus, even if Grady had included a claim for ineffective assistance of appellate counsel, it could not have been decided on the first habeas corpus petition in this Court. The Respondent maintains that the abuse of the writ doctrine applies to this second petition notwithstanding the fact that Judge Knapp's decision on the merits of the first petition was vacated.
Although Rule 9(b) is unclear on its face with respect to whether the merits of the prior petition must be reached, the statute to which the rule applies is more instructive. Section 2244(b) of Title 28 provides, in relevant part:
When after an evidentiary hearing on the merits of a material factual issue, or after a hearing on the merits of an issue of law . . . a subsequent application for a writ of habeas corpus on behalf of such person need not be entertained . . . unless the application alleges and is predicated on a factual or other ground not adjudicated in the hearing of the earlier application for the writ, and unless the court . . . is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.
28 U.S.C. § 2244(b) (emphasis added).
It would be awkward to read "hearing of the earlier application" to include a hearing where the merits of a prior petition were not reached and the petition was dismissed for failure to exhaust state remedies on all of the claims. Both of the earlier references to a hearing in § 2244(b) are modified by "on the merits" with respect to both factual and legal issues. Indeed, the operation of this section of the statute is conditioned on such a hearing because it is after such a hearing that a subsequent petition "need not be entertained." The only reasonable construction of the statute is one that limits abuse of the writ to petitions asserting new grounds not asserted in an earlier petition which was decided on the merits. Based on this interpretation, the Respondent's argument that Grady's second petition is abusive must fail because the merits of his first petition were never finally determined.
There is no authoritative holding on this issue by the Supreme Court. In McClesky the issue did not arise because the earlier petition had been denied on the merits. See McClesky, 499 U.S. at 473.
Nor does Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), which requires the dismissal of petitions that include both exhausted and unexhausted claims, decide the issue. Three Justices did comment, however, on whether unexhausted claims included in the first petition were subject to dismissal for abuse of the writ if dropped and brought in a second petition after being exhausted. Justice O'Connor believed that a petitioner who dropped his unexhausted claims in order to avoid the total-exhaustion bar erected by Rose was subject to abuse of the writ dismissal if he resurrected those claims in a second petition after exhausting them in state court. See Rose, 455 U.S. at 520-21 (O'Connor, J., for a plurality). Justices Brennan and Marshall disagreed, arguing that such a petitioner could not be said to have abandoned the unexhausted claims in his first petition when it was the holding in Rose that compelled him to do so to obtain a swift dismissal of his exhausted claims. See id., 455 U.S. at 536-37 (Brennan, J., concurring in part and dissenting in part). Justice White agreed with this position. See id., 455 U.S. at 538 (White, J., concurring in part and dissenting in part). Moreover, and more to the issue relevant to Grady's petition, Justice Brennan explained that even a petitioner who elected not to press forward on his first petition by dropping unexhausted claims, and rather allows that petition to be dismissed as mixed, may still return again after exhausting his claims without being subject to abuse of the writ. Justice Brennan explained that:
I conclude that when a prisoner's original, "mixed" habeas petition is dismissed without any examination of its claims on the merits, and when the prisoner later brings a second petition based on the previously unexhausted claims that had earlier been refused a hearing, then the remedy of dismissal for "abuse of the writ" cannot be employed against that second petition, absent unusual factual circumstances truly suggesting abuse.
Id., 499 U.S. 530 at 537-38 (Brennan, J., concurring in part and dissenting in part).
The Court of Appeals for the Fifth Circuit, in an en banc decision by Judge Higginbotham, interpreted Justice Brennan's concurrence as authoritative on this point:
[Rose] made plain that assertion of the unexhausted claims necessitates dismissal of the mixed petition and that dismissal of a mixed petition does not create a hurdle of writ abuse on petitioner's return.
Jones v. Estelle, 722 F.2d 159, 168 (5th Cir. 1983) (en banc). See Herbst v. Scott, 42 F.3d 902, 905 (5th Cir. 1995) ("Since the district court that heard [petitioner's] first federal habeas petition decided it on the merits, 28 U.S.C. § 2254 Rule 9(b) applies to his second petition. If the second petition presents new grounds that were not alleged in the first petition, the Government may plead abuse of the writ.").
While the Court of Appeals for the Second Circuit has yet to address this question, several decisions by district courts in this circuit have concluded that a petition which follows an earlier dismissal for failure to exhaust is not subject to challenge for abuse of the writ. See, e.g., Bacchus v. New York, Nos. CV-93-1247, CV-94-3073, 1995 WL 62599, at *3 n.7 (E.D.N.Y. Feb. 8, 1995) (Trager, J.) ("As neither of petitioner's two prior petitions were dismissed with prejudice, the third petition is not truly 'successive', and the abuse of writ doctrine is not applicable."). Furthermore, where a second petition asserts entirely new grounds for relief, it may not be attacked as abusive if the prior petition was dismissed without prejudice as a mixed petition. See Abdul-Matiyn v. Mitchell, No. 92 Civ. 6654, 1993 WL 307806, at *1 (S.D.N.Y. Aug. 10, 1993) (Buchwald, M.J.) (denying motion to dismiss third petition raising three new claims based on abuse of the writ where first two petitions were dismissed as mixed because § 2244(b) requires determination on the merits); Spruill v. Scully, 1993 U.S. Dist. LEXIS 11034, No. 90 Civ. 5342, 1993 WL 307778, at *8 (S.D.N.Y. Aug. 9, 1993) (Ward, J.) (holding that "second prong of Rule 9(b) also requires a prior determination on the merits before a subsequent habeas petition can be dismissed on abuse of the writ grounds[,]" and affirming Magistrate Judge Lee's finding that "an abuse of the writ inquiry would be inappropriate in this case").
In fact, a case on which the Respondent relies, Woods v. Whitley, 933 F.2d 321, 322 n.1 (5th Cir. 1991), noted that "because the federal district court dismissed [the petitioner's] first habeas petition without prejudice, we disregard it for purposes of abuse of the writ analysis." Another case on which the Respondent relies, Robinson v. Abrams, 1991 U.S. Dist. LEXIS 7499, No. 91 Civ. 3226, 1991 WL 102495 (S.D.N.Y. June 6, 1991) (Sweet, J.), did dismiss a second petition asserting new claims as abuse of the writ. But in that case, the first petition had been denied on the merits. See Robinson v. Scully, 683 F. Supp. 941 (S.D.N.Y. 1988) (Sweet, J.).
The Respondent relies principally on Holmes v. Bartlett, 810 F. Supp. 550 (S.D.N.Y. 1993) (Edelstein, J.), where a third petition asserting a claim for habeas relief not asserted in either of the two previous petitions was dismissed as abusive notwithstanding that both of the earlier petitions had been dismissed without prejudice for failure to exhaust state remedies. See id., 810 F. Supp. at 558-59. Judge Edelstein also dismissed these claims on their merits as an alternative holding. See id., 810 F. Supp. at 560-61. Grady acknowledges Holmes but distinguishes it by pointing out that the petitioner in that case had failed to raise the claims at issue in two prior proceedings rather than one. The fact that the petitioner brought a third petition may be an unusual factual circumstance suggesting abuse of the sort alluded to by Justice Brennan in Rose--although that specific analysis was not raised or discussed in Holmes.
Therefore, the Court agrees with those courts that have held abuse of the writ is not applicable to a new claim where a prior habeas petition in which the new claim was not included was dismissed without prejudice as a mixed petition under Rose. In this case, although Grady's first petition was initially denied on the merits by Judge Knapp, that disposition was vacated by the Court of Appeals and the petition was subsequently dismissed for failure to exhaust in accordance with that court's instructions. Therefore, there was no decision on the merits of Grady's first petition. Accordingly, the petitioner's claim based on ineffective assistance of appellate counsel, although not included in his first petition, is not subject to challenge as an abuse of the writ, and therefore review of that claim in the present petition is proper.
Alternatively, even if Grady's petition is subject to challenge as an abuse of the writ, Grady has demonstrated both cause and prejudice for not having raised the claim for ineffective assistance of appellate counsel in his first petition. Under McClesky, to establish cause for failure to raise a claim in a prior petition, the petitioner must show that the failure stemmed from some "external impediment whether it be government interference or the reasonable unavailability of the factual basis for the claim." McClesky, 499 U.S. at 497 (adopting "cause and prejudice" test from Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977) for overcoming abuse of the writ). Grady points out that Appellate Counsel was still representing him at the time of his first petition for a writ of habeas corpus in federal court. Grady argues that Appellate Counsel could not have been expected to raise his own ineffectiveness as an issue in the first petition. Grady maintains that Appellate Counsel's self-interest is an external impediment that constitutes sufficient cause for the failure to have presented the ineffectiveness of appellate counsel claim in the prior petition.
Respondent interprets Grady's argument to be a claim that Appellate Counsel provided ineffective assistance of counsel because he did not argue his own ineffectiveness in Grady's first habeas petition. The Respondent argues that because there is no constitutional right to counsel on a habeas petition, the ineffectiveness of that counsel does not constitute cause for failing to present a claim, relying on Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991); Ritchie v. Eberhart, 11 F.3d 587 (6th Cir. 1993), cert. denied, 510 U.S. 1135, 127 L. Ed. 2d 422, 114 S. Ct. 1111 (1994); Johnson v. Hargett, 978 F.2d 855, 859 (5th Cir. 1992), cert. denied, 507 U.S. 1007, 123 L. Ed. 2d 272, 113 S. Ct. 1652 (1993); Harris v. Vasquez, 949 F.2d 1497, 1514 (9th Cir. 1991), cert. denied, 503 U.S. 910, 117 L. Ed. 2d 501, 112 S. Ct. 1275 (1992). But this response does not address Grady's contention that this particular habeas counsel had a unique reason not to raise a claim of ineffective assistance of counsel--namely, he would be arguing that it was his own legal performance that was deficient. Grady argues that Appellate Counsel could not be expected to have raised an argument based on his own ineffectiveness and that this particular disability constitutes "cause" for not raising the claim in the first petition.
Grady's position is persuasive and has solid support in the case law of this circuit and others. In Ciak v. United States, 59 F.3d 296 (2d Cir. 1995), the Court of Appeals for the Second Circuit held that the failure by trial counsel to raise his own ineffectiveness on direct appeal would excuse a procedural default on the claim of ineffective assistance of trial counsel claim, thereby allowing the petitioner to assert that claim in his petition brought under 28 U.S.C. § 2255. Id., 59 F.3d at 303-04. The court explained that such a failure would constitute "cause" under Wainright v. Sykes:
Ciak, 59 F.3d at 303. Ciak relied squarely on Billy-Eko v. United States, 8 F.3d 111, 114-16 (2d Cir. 1993), which held that the procedural default rules that traditionally bar prisoners from raising issues for the first time in § 2255 proceedings do not apply to claims for ineffective assistance of counsel where a petitioner was represented by the same attorney at trial and on direct appeal or where such claims depend on matters outside the record from the petitioner's trial and direct appeal. In Billy-Eko, the Court of Appeals noted that a defendant is often represented by the same counsel at trial and on direct appeal, and therefore "it would be unrealistic to expect that trial counsel would be eager to pursue an ineffective assistance claim." Id., 8 F.3d at 114. See also Williams v. Lockhart, 862 F.2d 155, 157 n.4 (8th Cir. 1988) (noting that district court held "'[quite] obviously, the petitioner should not, and will not, be charged with the failure to raise this ground [of ineffective assistance of trial counsel] in his first petition because counsel would not attempt to challenge his own competency in a habeas proceeding.'" (quoting Williams v. Lockhart, No. PB-C-86-200, slip op. at 11 (E.D. Ark. Aug. 20, 1986))), cert. denied after remand, 502 U.S. 874, 112 S. Ct. 213, 116 L. Ed. 2d 171 (1991); Stephens v. Kemp, 846 F.2d 642, 651 (11th Cir.) ("We find 'cause' for petitioner's failure to raise the ineffective assistance issue in his first state habeas petition in the fact that petitioner's trial counsel, whose effectiveness is here challenged, also represented him in the first state habeas proceeding."), cert. denied, 488 U.S. 872, 102 L. Ed. 2d 158, 109 S. Ct. 189 (1988); Riner v. Owens, 764 F.2d 1253, 1257 (7th Cir. 1985) ("We hold that . . . representation of one or more of these defendants by the same attorney on direct appeal can meet the cause element of the cause and prejudice standard under certain circumstances. . . . Since it would be most difficult if not professionally awkward to require a lawyer to argue on appeal his own ineffectiveness . . . we conclude that identity of trial and appellate counsel can constitute sufficient cause to meet the first element of the cause and prejudice standard."), cert. denied, 475 U.S. 1055, 89 L. Ed. 2d 589, 106 S. Ct. 1282 (1986); Alston v. Garrison, 720 F.2d 812, 816 (4th Cir. 1983) ("We are satisfied with Alston's excuse for failing to raise his ineffectiveness claim at trial and on state appeal. The content of an appeal is heavily controlled by counsel, and where, as here, the defendant's trial lawyer also prosecuted the appeal, it is obvious that ineffective assistance of counsel is not likely to be raised at trial or to appear among the assignments of constitutional error."). But see Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996) (second petition was abuse of the writ where it asserted claim for ineffective assistance of appellate counsel not asserted in first petition; "[Petitioner] therefore cannot show cause by alleging that his first habeas counsel performed ineffectively in failing to allege the ineffectiveness of his appellate counsel in the first set of habeas petitions. His counsel's failure to raise the issue of his own ineffectiveness of appeal did not violate [Petitioner]'s rights under the Sixth Amendment."), cert. denied, 133 L. Ed. 2d 899, 116 S. Ct. 980 (1996).