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February 24, 2004.

JOSE HERNANDEZ, Petitioner, -against- CHARLES GREINER, Respondent

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


Petitioner Jose Hernandez ("Hernandez") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court is faced with a core jurisdictional issue: whether it is precluded from considering petitioner's constitutional claims because they were procedurally defaulted due to his assigned counsel's failure to timely perfect his appeal as of right to the State's highest court? The Court denies the writ for lack of jurisdiction, but grants a Certificate of Appealability to the Court of Appeals for the reasons that follow.


  On January 24, 1994, Hernandez and a co-defendant were arrested in Page 2 connection with the armed robberies of two Queens County bars: Five Corners on January 11, 1994 and Bayberry's on January 13, 1994. Although Hernandez initially refused to speak to the police pursuant to his Miranda rights, he later confessed to the robberies.

  Jury selection began on October 13, 1995. Hernandez, an indigent, was represented by the Legal Aid Society. On the second day of jury selection defense counsel made a Batson challenge because the government had used seven out of ten peremptory challenges to excuse African-Americans. See Batson v. Kentucky, 476 U.S. 79 (1986). The prosecution offered racially-neutral reasons for exercising four of these challenges; no explanation was provided with respect to the other three. The trial court denied the Batson challenge, stating:
I don't think you have to understand the People's reasoning for excluding anybody peremptorially [sic] as long as it was not a systematic exclusion based on race or some of the other things that Batson points out. I don't believe necessarily that they were systematically — this was the intention of the prosecutor that he is systematically excluding from the jury panel members who are Afro-Americans.
Trial Transcript ("Tr.") at 262.

  Defense counsel responded that it was not his burden to show that the exclusion was systematic; rather, he only had to establish a prima fade basis for the challenge. The court reiterated that the application was denied and admonished defense counsel not to "waste any more time on that." Tr. at 263.

  The trial began on October 18, 1995 in Supreme Court, Queens County. In his opening argument, defense counsel stated that Hernandez had invoked his right to Page 3 remain silent before he had confessed. Tr. at 490. Counsel sought to use this to attack the voluntariness of Hernandez's inculpatory statements. Tr. at 495. During the trial, the detective who elicited Hernandez's confession acknowledged during direct examination by the prosecutor that Hernandez had indeed initially refused to speak with him after receiving Miranda warnings. Tr. at 1019.

  Hernandez was convicted of five counts of Robbery in the First Degree, New York Penal Law § 160.15[4], and five counts of Robbery in the Second Degree, New York Penal Law § 160.10[1]. On September 16, 1997, the Appellate Division granted trial counsel's Motion to be Relived of Assignment, and appointed new counsel to prosecute Hernandez's appeal. See Motion for Error Coram Nobis (" Coram Nobis"), Ex. A. On direct appeal with his newly-assigned counsel, Hernandez claimed, inter alia, that he was deprived of his rights under Batson, and that the prosecution used his post-arrest silence after the invocation of his Miranda rights to impeach him at trial in violation of Doyle v. Ohio, 426 U.S. 610 (1976).

  The Appellate Division affirmed Hernandez's conviction with one justice dissenting. The court found The Batson claim unpreserved for appellate review, and noted that" [i]n any event, the absence of a complete record of the voirdire precludes any finding as to the defendant's establishment of a prima facie case of purposeful discrimination." People v. Hernandez, 698 N.Y.S.2d 43, 44-45 (2d Dep't 1999). The remaining contentions were found to be "unpreserved for appellate review, and . . . without merit." Id. at 45. The dissent held that the trial court's finding that "there was not necessarily any purposeful Page 4 discrimination," and its further direction to defense counsel "not to waste any more time on additional argument," were sufficient to preserve the Batson issue for appellate review. Id. (Goldstein, J., dissenting). The dissenting justice further noted that there were no race-neutral reasons proffered for the exercise of peremptory challenges by the government with respect to three of the prospective African-American jurors. Id. Accordingly, the dissenting justice believed that the Batson issue should be remitted to the trial court for a "hearing on the prosecutor's basis for challenging those jurors." Id.

  Hernandez's appellate attorney timely sought leave to appeal to the New York Court of Appeals from the dissenting justice, pursuant to N.Y. Crim. Proc. Law § 460.20 (2003) and 22 NYCRR § 670.6,*fn1 incorporating by reference all issues raised on direct appeal. Leave to appeal was granted on January 10, 2000. See People v. Hernandez, 708 N.Y.S.2d 367 (2d Dep't 2000). On January 26, 2000, Hernandez wrote to his appellate lawyer, informing her that he had "received the Decision & Order on Motion Certificate Granting Leave to Appeal to the Court of Appeal[s]," and inquiring how long counsel believed it would take the Court of Appeals to "respond[] to this matter." Coram Nobis, Ex. Page 5 F4.*fn2 On January 31, 2000, Hernandez's counsel wrote back, stating that" [t]he time it takes the Court of Appeals to decide leave applications varies. I cannot tell you when your application will be decided." Coram Nobis, Ex. F5. This reply clearly indicates that Hernandez's attorney did not comprehend that leave to appeal had already been granted.

  On May 2, 2000, Hernandez's counsel filed a jurisdictional statement pursuant to the Rules of Practice of the Court of Appeals, 22 NYCRR § 500.2.*fn3 See Declaration of Patrick J. Walsh ("Walsh Decl."), Ex. B. In a letter accompanying the statement, appellate counsel stated that the reason for the late filing was that she had "never received a copy [of the order granting leave to appeal] and was unaware that Justice Goldstein granted leave."*fn4 Walsh Decl., Ex. A. Since the jurisdictional statement was submitted more than eighty days after leave to appeal had been granted, and the Court of Appeals had no prior notice of the pending appeal, the Clerk of the Court of Appeals entered an order on May 9, 2000, pursuant to 22 NYCRR § 500.9(a), dismissing Page 6 the appeal "for want of prosecution."*fn5 It was reported in the official reports as being "dismissed pursuant to rules of practice of Court of Appeals or on consent." People v. Hernandez, 95 N.Y.2d 792 (2000).

  On July 14, 2000, counsel filed a motion to vacate the order of dismissal. In an affirmation in support of the motion, counsel again proffered as her excuse for failing to make any effort to perfect the appeal within the 80 day time period under Rule 500.9(a), that "she was never notified [of the certificate for leave to appeal] by the Appellate Division." Walsh Decl., Ex. C. She attached a copy of the opinions of the Appellate Division to her affirmation. The motion was summarily denied. See People v. Hernandez, 95 N.Y.2d 885 (2000) ("Motion to vacate this Court's May 9, 2000 order of dismissal denied."). Filing prose, Hernandez then sought a writ of error coram nobis in the Appellate Division, alleging ineffective assistance of appellate counsel for failing to perfect his appeal before the Court of Appeals. The Appellate Division denied the writ, stating only that Hernandez "has failed to establish that he was denied the effective assistance of Page 7 appellate counsel." People v. Hernandez, 721 N.Y.S.2d 842, 842 (2d Dep't 2001). Continuing prose, Hernandez filed the present habeas corpus petition on April 6, 2001, raising both the Batson and Doyle issues. By order dated July 15, 2002, the Court assigned counsel. In his submissions, counsel advances compelling arguments in support of petitioner's Batson claim, and argues that petitioner should not be procedurally barred from presenting this claim because it was properly exhausted in the state courts; alternatively, if the claim be deemed procedurally barred, the default was due to the ineffectiveness of Hernandez's assigned appellate counsel in failing to timely file the jurisdictional statement.*fn6

  Respondent does not address the merits of the Batson issue. He argues that Hernandez was procedurally barred from presenting his Batson claim in the State's highest court, and that the Court is without jurisdiction to relieve him from the bar based upon counsel's ineffectiveness in failing to perfect the appeal because no constitutional right to counsel attached beyond petitioner's first appeal; alternatively, respondent argues that the Court cannot, in any event, consider the merits of the Batson issue ...

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