United States District Court, E.D. New York
February 23, 2004.
ADRIAN SALAS, Petitioner, -against- ROBERT EBERT, Superintendent, Respondent
The opinion of the court was delivered by: NINA GERSHON, District Judge
On September 18, 2003, petitioner brought a petition pursuant to
28 U.S.C. § 2254 seeking habeas corpus relief on the ground that he was
denied due process of law because his attorney never perfected his appeal
to the Appellate Division of the New York Supreme Court. In his
Memorandum of Law filed the same day, plaintiff appears to raise claims
of ineffective assistance of trial counsel; various due process claims; and
challenges to the weight of the evidence and the court's Allen charge.
Via letter dated January 22, 2004, respondent indicated that on January
14, 2004, the Appellate Division, Second Department, granted petitioner's
pro se motion to relieve retained appellate counsel and appointed new
counsel to represent petitioner on appeal. Accordingly, the basis of the
petition, that petitioner's appellate counsel failed to perfect his
appeal, has been resolved. Insofar as petitioner also seeks habeas corpus
relief on his other claims, these claims are clearly unexhausted as
plaintiff still has a pending appeal in the state courts,
28 U.S.C. § 2254(d)(1).
For the reasons stated above, this petition is dismissed without
prejudice. As the petition was filed during the pendency of a direct
appeal in state court, and its purpose was to seek relief on the ground of
unreasonable delay in the state appellate process, should petitioner file
a Section 2254 petition following exhaustion of his state remedies, that
petition will not be considered a second or successive petition under
28 U.S.C. § 2254(d)(1), See Vasquez v. Parrott, 318 F.3d 387 (2d Cir.
2003). While Vasquez involved delay in the state appellate process caused
by the Appellate Division and not by defense counsel, the rationale of
Vasquez, distinguishing a challenge to delay in the appellate process
from a challenge to the validity of the conviction, is equally applicable
here. The Clerk of Court is directed to close the case.
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