The opinion of the court was delivered by: Denise Cote, United States District Judge.
Petitioner Joseph Poole ("Poole") filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") on April 24, 2000.*fn1 Poole's sole claim is that the Appellate Division has improperly failed to consider the appeal of his 1994 conviction, depriving him of due process. The petition was referred to Magistrate Judge Henry Pitman on July 26, 2000 for a Report and Recommendation.*fn2 Following an evidentiary hearing, Judge Pitman issued a Report and Recommendation on January 13, 2003 ("Report"), recommending that the petition be denied as untimely and on the merits. Petitioner, by his attorneys, has filed objections. For the reasons described in the Report and those described below, the Report is adopted and the petition is denied.
Poole was convicted of one count of assault in the second degree and sentenced on May 5, 1994, to a term of imprisonment of three and one-half to seven years. His then attorneys filed a timely notice of appeal. Although it is disputed whether petitioner was in touch with his attorneys following his sentencing, it is clear that they took no further steps to pursue review of Poole's conviction. Poole learned of his attorneys' deaths in 1997. Petitioner contends that he wrote a series of six letters to the Appellate Division between February 1998 and July 1999 inquiring as to the status of his appeal, but none of these were found in the Appellate Division's files. The present petition was initially filed in August 1999.
Respondent's challenge to the veracity of the letters Poole allegedly sent to the Appellate Division led Magistrate Judge Pitman to hold an evidentiary hearing in July 2002. Poole was appointed counsel for the hearing. Judge Schlesinger, who had sentenced Poole in 1994, testified, as did two Appellate Division clerks, respondent's forensic expert, a corrections officer and petitioner.
There was no credible evidence presented at the hearing that the letters were sent, and much evidence that the letters were instead fabricated after the fact. For example, although Poole claimed to have made carbon copies of the original letters, his explanation for the disappearance of those carbon copies changed on cross examination. Further, as Judge Pitman observed, although it is of course possible that a busy clerk's office could misplace a letter, it is "inconceivable" that they could misplace six separate letters from the same petitioner.
While the parties dispute whether Poole was informed of his right to counsel, and the procedure by which he could have requested assigned counsel, Judge Pitman credited Judge Schlesinger's testimony that his normal sentencing procedures included providing a written notice of these rights and procedures to a defendant, and that Poole was most likely provided with such a notice. The transcript of Poole's sentencing confirms that this procedure was followed, as do Judge Schlesinger's contemporaneous notes. The hearing before Judge Pitman also revealed the reason for the failure of the Appellate Division to act on Poole's appeal. The Appellate Division's deputy clerk testified that no action is taken on criminal appeals until counsel is appointed or appears. As noted above, Poole's trial attorneys did not appear on appeal. After their death, based on the evidentiary record at the hearing before Judge Pitman, Poole took no action to secure replacement counsel.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
A review of Judge Pitman's well-reasoned Report and the transcript of the hearing confirms that his findings of fact are fully supported by the record. Petitioner did not carry his burden of showing that he actively asserted his right to appeal. As he has not shown that the letters allegedly written to inquire about the status of his appeal were sent when he claims they were, Poole has not shown that he did anything to appeal his conviction between 1994 and the filing of this petition, other than filing the notice of appeal itself.
The transcript and the record also support Judge Pitman's conclusion that Poole had the information he needed to secure appointed counsel. Poole has not claimed that he made any effort to do so, and instead argues that he did not receive the notice describing the means by which he could have new counsel appointed. Judge Pitman credited the trial judge's testimony on this point, and the record fully supports the conclusion that Poole did receive the notice describing his right to counsel. Poole therefore had the means of furthering his appeal and failed to do so.
28 U.S.C. § 2254 (b) requires that a habeas petitioner exhaust all available state remedies for the violation of his asserted federal rights. See Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). As Poole has not pursued his appeal, or taken any steps in state court to assert his right to a speedy hearing on his appeal, he has failed to exhaust available state processes for attacking his conviction. Poole has also not shown cause for and prejudice from this failure to exhaust or that it resulted in a fundamental miscarriage of justice. See, e.g., Strogov v. New York, 191 F.3d 188, 193 (2d Cir. 1999).
While a habeas court cannot grant relief to unexhausted claims on their merits, AEDPA does permit dismissal of unexhausted claims on their merits. See 28 U.S.C. § 2254 (b)(2); Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). Judge Pitman, reviewing the applicable standard for evaluating the possible denial of the right to a speedy trial set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), recommended dismissal of Poole's claim on the merits, and that recommendation is adopted. The first Barker factor, length of the delay, weighs in Poole's flavor. But the reason for the delay largely rests with Poole himself. Further, the strongest examples of his efforts to assert his rights, the letters to the Appellate Division, cannot be credited. Therefore, even if one assumes that Poole had meritorious claims to raise on appeal and has suffered prejudice from the delay, this Court would conclude that the Barker standard has not been met.
Poole's objections primarily attack the sufficiency of his trial counsel and Judge Pitman's findings of fact. Poole argues that had more diligent counsel represented him at trial, his appeal would have been perfected long ago. Poole's petition, however, is not based on ineffective assistance of counsel. The objections continue to rely on the discredited letters, and question whether the record supports the finding that Judge Schlesinger notified petitioner of his right to appeal. Poole bears the burden of showing that he had made an effort to ...