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SEIFERT v. KEANE

July 27, 1999

STEPHEN SEIFERT, PETITIONER,
V.
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.



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

OPINION AND ORDER

On February 14, 1997, petitioner Stephen Seifert filed a petition for a writ of habeas corpus attacking his 1987 conviction of Attempted Robbery in the Second Degree and his 1991 conviction of Assault in the First Degree. For the reasons set forth below, the court denies Seifert's petition.

I Background

As the result of an incident on December 24, 1977, the petitioner was charged inter alia with Criminal Possession of a Weapon in the Second Degree. See Pet. Memo., 5/27/99, 2; Resp.Memo., 10; Resp.Affid., Exh. A at 6-8. On September 27, 1978, petitioner pled guilty to Attempted Criminal Possession of a Weapon in the Third Degree. See Pet.Memo., 5/27/99, 2; Resp.Memo., 10; 1978 Plea Mins., available at Resp.Affid., Exh. X. As a result of the plea, petitioner was sentenced to one and one/half (1½) to three (3) years imprisonment. See Pet.Memo., 5/27/99, 2; Resp. Memo., 10.

In 1986, the petitioner was indicted on charges, inter alia, of Attempted Robbery in the First Degree. See Resp.Memo., 13, Pet.Memo., 5/27/99, 3. On March 9, 1987, petitioner, represented by attorney Lisa Scolari, pled guilty to Attempted Robbery in the Second Degree under the understanding that he would be sentenced to two and one-half (2½) to five (5) years. See Resp.Memo., 13; 1987 Plea Mins., available at Resp. Letter, 12/31/98; Pet.Memo, 5/27/99, 3. At the same proceeding, the state court advised the petitioner that the district attorney had filed a statement, pursuant to N.Y.Crim.Proc.Law § 400.21, alleging that petitioner had been convicted of a predicate violent felony, rendering him a second violent felony offender. See 1987 Plea Mins., at 6-8, available at Resp. Letter, 12/31/98. After petitioner declined to controvert any allegation made in the statement, the court found petitioner to be a second violent felony offender. See id. at 9. On March 30, 1987, the court sentenced petitioner to an indeterminate prison term of two and one-half (2½) to five (5) years, to run concurrently with a prison term then being served by petitioner. See 1987 Sent.Mins., available at Resp. Letter, 12/31/98. Though petitioner filed a notice of appeal, his appointed attorney withdrew the appeal. See Resp.Memo., 6; People v. Seifert, Mot. No. 5590 (2d Dept. Aug. 10, 1988), available at Resp. Letter, 12/31/98; Pet.Memo., 5/27/99, 3.

In 1990, the petitioner was again indicted, this time for Attempted Murder in the Second Degree and three counts of Assault in the First Degree. See Resp.Affid., ¶ 4; Pet.Memo., 5/27/99, 3. On May 24, 1991, the petitioner pled guilty to one count of Assault in the First Degree with the expectation of receiving a sentence of nine (9) years to life. See Resp.Affid., ¶ 5; 1991 Plea Mins., available at Resp.Affid., Exh. W; Pet.Memo., 5/27/99, 3. After taking petitioner's plea, the state court informed petitioner that the district attorney had filed a statement alleging that petitioner had previously been convicted on two violent felonies, namely the 1978 and 1987 convictions. See 1991 Plea Mins., at 10-11, available at Resp.Affid., Exh. W. After the petitioner declined to dispute any of the allegations in that statement, the court determined him to be a persistent violent felony offender. See id. at 11. However, the court expressly based its decision on erroneous information that the petitioner had pled guilty to Attempted Criminal Possession of a Weapon in the Third Degree from an indictment charging Criminal Possession of a Weapon in the Third Degree. See id. at 12-13. The court refused petitioner's attorney request that the court hold the determination in abeyance pending verification of that information, though the court agreed that it would revise its determination if necessary. See id. On June 12, 1991, the court confirmed its determination that petitioner was a persistent violent felony offender. See 1991 Sent.Mins., at 2, available at Resp.Affid., Exh. W. After petitioner's counsel informed the court that there was no reason why sentence should not be imposed immediately, the court sentenced the petitioner to an indeterminate prison term of nine (9) years to life. See id. at 2-3.

On October 29, 1992, pursuant to N.Y.Crim.Proc.Law § 440.20, the petitioner moved the trial court to set aside his 1991 sentence on the ground that he was improperly designated a persistent violent felony offender in 1987. See Pet. 440.20 Motion, 10/29/92, available at Resp.Affid., Exh. A. In a decision rendered on March 22, 1993, the court denied petitioner's motion as barred by N.Y.Crim.Proc.Law § 400.15(8), which provides that a predicate violent felony offender finding is "binding upon that defendant in any future proceeding in which the issue may arise." See People v. Seifert, Ind. No. 10516/90 (Sup.Ct. Kings Cty. March 22, 1993), available at Resp.Affid., Exh. C. The Appellate Division allowed petitioner to consolidate his appeal from the denial of his 440.20 petition with the direct appeal of his conviction.

  On direct appeal, petitioner's attorney argued that the trial
court erred in refusing petitioner an opportunity to withdraw his
plea after the court declined to revise its persistent violent
felony offender finding. See Pet.App. Brief, available at
Resp.Affid., Exh. E. In a supplemental pro se brief, petitioner
added that the trial court erred in failing to recognize and
grant his challenge to the 1987 predicate violent felony finding.
See Pet.Supp.App. Brief, available at Resp.Affid., Exh. G. On
November 14, 1994, the Appellate Division denied petitioner's
direct appeal and the appeal of the denial of his 440.20 motion,
holding that, as a result of N.Y.Crim.Proc. Law § 400.15(8), "the
Supreme Court properly sentenced the defendant as a persistent
violent felony offender." People v. Seifert, 209 A.D.2d 555,
556, 619 N.Y.S.2d 86 (2d Dept. 1994). On March 10, 1995,
petitioner's application for leave to appeal the decision to the
Court of Appeals was denied. See People v. Seifert, 85 N.Y.2d 914,
 627 N.Y.S.2d 337, 650 N.E.2d 1339 (1995).

On January 31, 1995, pursuant to N.Y.Crim.Proc.Law § 440.20, the petitioner moved the trial court to set aside his 1987 sentence and, in particular, the 1987 predicate violent felony determination, on the ground of ineffective assistance of counsel. See Pet. 440.20 Motion, 1/31/95, available at Resp.Affid., Exh. I. On May 19, 1995, the trial court denied petitioner's motion, holding that petitioner's trial counsel did not render ineffective assistance. See People v. Seifert, Ind. No. 436/86 (Sup. Ct. Kings Cty. May 17, 1995), available at Resp.Affid., Exh. K. In so holding, the court pointed out that whether petitioner's 1978 conviction qualifies as a predicate violent felony was at the time of sentencing (and remains) a complicated and open question. See id. at 6-7. As a result, if convicted, the petitioner was faced with a maximum sentence of at least seven and one-half (7½) to fifteen (15) years as a second felony offender and at worst twenty-five (25) years to life as a persistent violent felony offender. See id. at 8. According to the trial court, petitioner's counsel did not render ineffective assistance in negotiating a plea of two and one-half (2½) to five (5) years, to run concurrently with a sentence the petitioner was then serving, whether or not counsel was aware of the argument against the predicate violent felony determination. See id. at 9.

On June 6, 1995, petitioner filed a motion with the Appellate Division requesting (1) leave to appeal the denial of his 440.20 motion and/or (2) a writ of error coram nobis on the basis of ineffective assistance of appellate counsel after his 1987 conviction. See Pet. 440.20 Motion, 6/6/95, available at Resp.Affid., Exh. L. On July 25, 1995, the Appellate Division denied petitioner's application without directly addressing his petition for a writ of error coram nobis.*fn1 See People v. Seifert, App. No. 95-05609 (2d Dept. July 25, 1995), available at Resp.Affid., Exh. O. On November 14, 1995, pursuant to N.Y.Crim. Proc.Law § 440.20, the petitioner moved the trial court to set aside his 1991 sentence on the grounds of ineffective assistance of trial counsel. See Pet. 440.20 Motion, 11/14/95, available at Resp.Affid., Exh. P. On March 21, 1996, the petitioner's 440.20 motion was denied. See People v. Seifert, Ind. No. 10516/90 (Sup.Ct. Kings Cty. March 21, 1996), available at Resp.Affid., Exh. R. On April 9, 1996, petitioner again filed a motion with the Appellate Division requesting (1) leave to appeal the denial of his 440.20 motion and/or (2) a writ of error coram nobis on the basis that the Appellate Division effectively denied him the assistance of counsel by refusing his counsel's request for an extension of time. See Pet. Motion, 4/9/96, available at Resp.Affid., Exh. S. Again, the Appellate Division denied petitioner's application without directly addressing his petition for a writ of error coram nobis.*fn2 See People v. Seifert, App. No. 96-03508 (2d Dept. June 4, 1996), available at Resp.Affid., Exh. V.

On February 14, 1997, petitioner filed the instant petition for a writ of habeas corpus challenging his 1987 conviction of Attempted Robbery in the Second Degree and his 1991 conviction of Assault in the First Degree. See Petition. Petitioner asserted four claims in support of his petition: (1) ineffective assistance of trial counsel at his 1987 conviction, (2) ineffective assistance of appellate counsel during appeal from his 1987 conviction, (3) ineffective assistance of trial counsel at his 1991 conviction, and (4) ineffective assistance of appellate counsel during appeal from his 1991 conviction. See Pet.Memo., 2/14/97. The respondent has opposed the petitioner's petition both on the merits and as partially unexhausted. See Resp.Memo.

II Analysis

A Exhaustion

The respondent first contends that the petitioner has failed to exhaust his state remedies with regard to his two claims of ineffective assistance of appellate counsel. Respondent admits that petitioner submitted motions for writs of error coram nobis with regard to each of his claims of ineffective assistance of appellate counsel. See Resp.Memo., 4-6. However, according to respondent, since the Appellate Division did not actually consider petitioner's claims, petitioner has not exhausted the state remedies available to him. The court does not agree.

In Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978), the U.S. Supreme Court was presented with a similar argument. In Digmon, the Alabama Court of Criminal Appeals denied Smith's appeal without commenting upon the contention presented in Smith's brief that his constitutional rights were violated by impermissible identification procedures. See id. at 333. In rejecting respondent's argument that Smith had thus failed to exhaust his state remedies, the Supreme Court stated that "it is too obvious to merit extended discussion that whether the exhaustion requirement of 28 U.S.C. § 2254(b) has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner's brief . . . and, indeed, in this case, vigorously opposed in the State's brief." Id. at 333, 98 S.Ct. 597. Moreover, in Castille v. Peoples, 489 U.S. 346, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989), the Supreme Court reiterated its rejection of the petitioner's expansive interpretation of the exhaustion requirement. The Castille court recognized that a petitioner has satisfied the exhaustion requirement "where the claim has been presented as of right but ignored. . . ." Id. at 351, 109 S.Ct. 1056.

In this case, it is undisputed that petitioner squarely raised both ineffective assistance of appellate counsel claims to the proper court — the Appellate Division — through the proper procedural vehicle — an application for a writ of error coram nobis.*fn3 See People v. Bachert, 69 N.Y.2d 593, 600, 516 N.Y.S.2d 623, 509 N.E.2d 318 (1987) (writ of error coram nobis proper vehicle to raise ineffective assistance of appellate counsel claim); Garcia v. Keane, 973 F. Supp. 364, 371 (S.D.N Y 1997) (Appellate Division proper court for presentation of ineffective assistance of appellate counsel claim). Applying the Supreme Court's holding in Digmon and reasoning in Castille to the case at hand, the court finds that the petitioner satisfied the exhaustion requirement by properly presenting his claims of ineffective assistance of appellate counsel to the Appellate Division even though the Appellate Division did not specifically address the claim. See Aparo v. Superior Court, 956 F. Supp. 118, 120 (D.Conn. 1996) (holding that petitioner exhausted claim through proper presentation even though state court did not refer to claim in denying appeal); Meggett v. Miller, 1994 WL 808048, at *5 (S.D.N.Y. 1994) (exhaustion requirement satisfied where claim presented "in a ...


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