The opinion of the court was delivered by: John Gleeson, United States District Judge.
Roy Dumas has filed a petition for a writ of habeas corpus, see
28 U.S.C. § 2254, contending that his counsel was constitutionally
ineffective for failing to file a notice of appeal. Finding that Dumas
has failed to exhaust this claim in state court, I dismiss the petition.
In April 1983, Roy Dumas was convicted after a jury trial of one count
of murder in the second degree and one count of arson in the second
degree. On May 27, 1983, he was sentenced to concurrent terms of 20 years
to life on the murder count and 12 and one-half to 25 years for the arson
count. At the sentencing, Dumas was represented by attorney Sidney
Guran. During those proceedings, Guran indicated to the Court that he
planned to make a postconviction motion to set aside the verdict.
(Sentencing Transcript, People v. Dumas, Supreme Court, County of
Queens, May 27, 1983, at 7.) At the end of the proceeding, Dumas was
advised by the clerk that he had a right to appeal; that he had to file a
notice of appeal within 30 days; and that an attorney would be appointed
for him if he could not afford to hire one. (Id. at 9-10.) As discussed
more fully below, Dumas and Guran discussed an appeal at this time. As
was later discovered, however, no notice of appeal was filed.
In his motion papers, Dumas said that on May 20, 1983,*fn1 Guran had
told Dumas that Guran would file a notice of appeal. (Dumas § 460.30
Affidavit, ¶ b.) Dumas stated that he had not sought a status report
on his appeal until 1987 because Guran had told him there would likely be
no decision for four to five years. (Id., ¶ f.) The district attorney
took no position on Dumas's application. (Affidavit and Memorandum of Law
in Opposition to Petition for a Writ of Habeas Corpus at 3.) In an order
dated June 23, 1987, the Appellate Division denied Dumas's § 460.30
motion without explanation. On March 17, 1988, the Court of Appeals
dismissed defendant's application for leave to appeal, saying that the
Appellate Division's order was not appealable.
On September 4, 1987, before the Court of Appeals had acted, the
defendant filed a motion in the Supreme Court pursuant to New York
Criminal Procedure Law § 440.10 to vacate his judgment of
conviction. In support of that motion, Dumas argued that he had been
deprived of the effective assistance of counsel by his attorney's failure
to file a notice of appeal. He repeated his contention that Guran had
assured him that Guran would file a notice of appeal, and he included
affidavits from his mother and sister in which they said Guran had told
them the same thing. Dumas asked the court to vacate his judgment of
conviction and resentence him on the original guilty verdict, thus
allowing him to have a direct appeal. In the alternative, Dumas requested
a hearing on his counsel's actions. The district attorney opposed Dumas's
motion, arguing, inter alia, that Criminal Procedure Law § 460.30
provided the exclusive means for seeking permission to file a late notice
of appeal and that Dumas had already filed (and lost) a § 460.30
Justice Joseph G. Golia of the Supreme Court, Queens County, ordered an
evidentiary hearing, which took place on March 14, 1988. At the hearing,
Dumas was represented by assigned counsel. Dumas testified that Guran had
assured him that he would file the notice of appeal, while advising Dumas
that another attorney would actually handle the appeal. (Transcript of
§ 440.10 Hearing at 8.) He said that he did not hear from Guran again
until he wrote to him in 1987 inquiring about the status of his appeal.
(Id. at 11.) Dumas's mother and sister testified that Guran told them
after the sentencing that he would file a notice of appeal within 24
hours and that if they had not heard from him by then to contact him.
(Id., at 27, 37.) Both testified that they tried to follow up with Guran
in person and by phone but that he was never in his office and never
returned phone calls. (Id. at 27-28, 38.)
On May 2, 1988, Justice Golia denied Dumas' s motion to vacate his
sentence. He concluded that even if Guran had told Dumas he would file a
notice of appeal, it was unreasonable for the defendant to wait as long
as he did (more than three years), without any communication from his
counsel, to inquire into the status of his appeal. (Memorandum of Justice
Joseph G. Golia at 3.) The court concluded that the "defendant's present
predicament was solely the result of his own inertia and lack of
forthright concern." (Id.)
Leave to appeal was granted by the Appellate Division, Second
Department. That court affirmed Justice Golia's decision on April 2,
1990, but it found error in his approach to the case. See People v.
Dumas, 554 N.Y.S.2d 47, 48 (2d Dep't 1990). The court noted that the
relief sought by Dumas had already been denied by the Appellate Division
when it considered his § 460.30 motion. See id. Accordingly, the
Supreme Court had no authority to grant relief to Dumas, even if it had
wanted to, and it should not have held the evidentiary hearing. See id.
Leave to appeal to the Court of Appeals was denied on August 16, 1990.
Dumas's petition for a writ of habeas corpus in this case was dated
April 17, 1997, and received by the court on April 24, 1997.*fn2 In the
petition, he contended that his counsel had an "absolute duty" to file a
notice of appeal and that he was constitutionally ineffective for failing
to do so. On March 24, 1998, I granted the respondent's motion to dismiss
the petition as untimely pursuant to the interpretation of the statute of
limitations of the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") suggested in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997).
The Second Circuit thereafter decided Ross v. Artuz, 150 F.3d 97 (2d
Cir. 1998), which rejected Peterson's suggestion and established a
one-year post-AEDPA grace period for habeas petitioners whose convictions
became final before AEDPA's effective date of April 24, 1996. Based on
Ross the Second Circuit on October 30, 1998, vacated my order dismissing
the petition. I then directed the respondent to brief the merits of the
petition, which he did on October 5, 1999. On December 3, 1999, the
respondent moved to dismiss the petition as untimely under Rule 9(a) of
the Rules Governing Section 2254 Cases in the United States District
Courts. I subsequently appointed counsel for Dumas. Oral argument was
held on April 28, 2000.