The opinion of the court was delivered by: Gleeson, 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. For the reasons
stated below, a conditional writ is granted, pursuant to which
petitioner's release will be ordered unless the state takes action to
provide him with a direct appeal within 45 days.
A prior memorandum and order, in which I denied respondent's motion to
dismiss pursuant to Rule 9(a) of the Rules Governing Section 2254 cases
in the United States District Court and dismissed the petition for
failure to exhaust the claim of ineffective assistance of appellate
counsel, was issued on June 6, 2000. See Dumas v. Kelly, 105 F. Supp.2d 66
(E.D.N.Y. 2000). Familiarity with that decision, which sets forth the
procedural history of the petition, is assumed here.
A. Procedural Developments Since My June 6, 2000 Order
On June 19, 2000, petitioner filed a motion for a writ of error coram
nobis, which the Appellate Division denied on November 6, 2000.
Thereafter, petitioner requested that his habeas petition be reinstated,
which was granted in an order dated November 28, 2000. An evidentiary
hearing on the issue of whether Dumas asked his lawyer at sentencing,
Sidney Guran, to file a notice of appeal was held on April 13, 2001. At
the conclusion of the hearing, I credited Dumas's testimony and found
that he had, in fact, asked Guran to File a notice of appeal, and that
Guran assured him that he would file the notice. Moreover, since Guran
told Dumas at that time that the appeal would take four to five years, it
was not unreasonable — and not reflective of an absence of
diligence — for Dumas to wait three and one-half years before
contacting the Appellate Division regarding the status of the appeal. The
reasonableness of Dumas s conduct is not undermined, as respondent
suggested at oral argument, by the fact that Dumas was aware that Guran
himself would not handle the appeal. Respondent contends that Dumas "had
to make the affirmative step to ask [the appellate court] for somebody to
be assigned." April 13, 2001, Transcript at 29. But Dumas had no way of
knowing that and every reason to believe that Guran had taken care of
In sum, I find that Dumas instructed his attorney to file a notice of
appeal; the attorney failed to follow that instruction despite assuring
Dumas that he would; and Dumas exercised reasonable diligence in
monitoring his appeal under the circumstances.
It is well-settled that due process requires that defendants have
effective assistance of counsel on appeals as of right, Evitts v. Lucey,
469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), and that an appeal
from a criminal conviction is a matter of right. Coppedge v. United
States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). A defendant
asserting that his counsel rendered constitutionally ineffective
assistance must show both that his attorney's performance was objectively
unreasonable and that he was prejudiced by the deficiency. See Strickland
v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Supreme Court has held that the standard first articulated in
Strickland applies when a defendant alleges that his counsel was
ineffective for failing to file a notice of appeal. See Roe v.
Flores-Ortega, 528 U.S. 470, 476-77. 120 S.Ct. 1029, 145 L.Ed.2d 985
(2000) (citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052).
A defendant satisfies the first Strickland prong if his attorney
"disregards specific instructions from the defendant to file a notice of
appeal," for there could be no objectively reasonable grounds for failing
to comply with such a request. See Flors-Ortega, 528 U.S. at 477, 120
S.Ct. 1029 (citing Rodriguez v. United States, 395 U.S. 327, 89 S.Ct.
1715, 23 L.Ed.2d 340 1969)): see also Peguero v. United States,
526 U.S. 23, 119 S.Ct. 961, 143 L.Ed.2d 18 (1999) ("[W]hen counsel fails
to file a cc quested appeal, a defendant is entitled to [a new appeal
without showing that his appeal would likely have had merit."). The
prejudice prong of the Strickland test is made out in such cases if the
defendant can show that but for counsel's deficient performance, he would
have appealed." Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029; see also
id. (noting that there is a "presumption of prejudice" when counsel's
deficient performance resulted in the loss of an entire judicial
proceeding). Both prongs are satisfied if counsel knew definitively of the
defendant's desire to appeal but failed to file the required notice.
That is what happened to Dumas in state court. I therefore conclude
that Dumas was denied effective assistance of counsel due to his
counsel's failure to file the requested notice of appeal.*fn1 See
Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999) (If the defendant
told his lawyer to appeal from the conviction, "`and the lawyer dropped
the ball, then the defendant has been deprived, not of effective
assistance of counsel, but of any assistance of counsel on appeal.
Abandonment is a per se violation of the sixth amendment.'") (quoting
Castellanos v. United States, 26 F.3d 717, 718 (7th Cir. 1994)).
Finally, as noted above, Dumas need not demonstrate the likelihood of
success on appeal before obtaining relief. Peguero, 526 U.S. at 23, 119
S.Ct. 961 ("[W]hen counsel fails to file a requested appeal, a defendant
is entitled to [a new] appeal without showing that his appeal would
likely have had merit."); Rodriquez, 395 U.S. at 330, 89 S.Ct. 1715
("Those whose right to appeal has been frustrated should be treated
exactly like any other appellants; they should not be given any
additional hurdle to clear just because their rights were violated at
some earlier stage in the proceedings."); see also McHale v. United
States, 175 F.3d 115, 119 (2d Cir. 1999) ("petitioner need not
demonstrate that, but for the ineffectiveness of counsel, [a direct]
have succeeded or even would have had merit.").
For the reasons stated above, Dumas's petition for a writ of habeas
corpus is conditionally granted. Respondent is hereby ordered to take the
steps necessary to afford petitioner a direct appeal within 45 days of
this opinion. If those steps require further order of this Court,
respondent should promptly make the appropriate application.