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DUMAS v. KELLY

June 6, 2000

ROY DUMAS, PETITIONER,
V.
WALTER KELLY, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: John Gleeson, United States District Judge.

MEMORANDUM AND ORDER

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.

BACKGROUND

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.

Dumas wrote to Guran and the clerk of the Appellate Division, Second Department in January 1987 to check on the status of his appeal. (Affidavit of Defendant in Support of Motion for Extension of Time for Taking Appeal ("Dumas § 460.30 Affidavit"),¶ f.) In March 1987, Dumas received a letter from the Appellate Division advising him that there was no record of an appeal in his case. (Id. ¶ g.) On May 2, 1987, Dumas filed a motion in the Appellate Division for an order extending his time for filing a notice of appeal. Dumas made the motion under New York Criminal Procedure Law § 460.30, which allows a defendant who wishes to appeal but did not file notice within the requisite period to seek permission to file a late notice. See id. § 460.30(1). There are several grounds for such a motion, one of which is "improper conduct, death or disability of the defendant's attorney." Id. A motion under § 460.30 must be filed "with due diligence" after expiration of the time for filing notice of appeal, but in no case more than one year after that date. See id.

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 motion.

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.)

The court also received an affirmation from Guran, who reported that he had retired to Florida after having been suspended from practice due to his physical condition. (Affirmation of Sidney Guran, ¶ 1.) Guran said that because of his physical condition he could not travel without being accompanied by his physician. (Id., ¶ 2.) He said that he recalled speaking with Dumas about how Dumas should go about seeking appointment of appellate counsel. (Id., ¶ 4.) Guran said that he never told Dumas he would represent him on appeal, as he was not a member of the Appellate Panel. (Id., ¶ 5.) He said that he might have told Dumas that an appeal could take "several" years, but that he never told him it would take four to five years. (Id., ¶ 6.) Guran's affidavit said nothing one way or the other about any conversation he might have had with Dumas about the filing of a notice of appeal.

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.

DISCUSSION

A. Habeas Rule ...


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