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TAVERAS v. SMITH

United States District Court, S.D. New York


September 12, 2005.

JOSE TAVERAS, Petitioner,
v.
JOSEPH T. SMITH, Superintendent, Shawangunk Correctional Facility, Respondent.

The opinion of the court was delivered by: SIDNEY STEIN, District Judge

OPINION & ORDER

Pursuant to 28 U.S.C. § 636(b)(1), this Court accepts Magistrate Judge Gorenstein's thoughtful Report and Recommendation dated January 6, 2005 for the reasons set forth therein. In that Report and Recommendation, Judge Gorenstein concluded that this Court should grant the petition of Jose Taveras, brought pursuant to 28 U.S.C. § 2254, because the decision of the New York State Appellate Division, First Department, to deny Taveras counsel for his criminal appeal was contrary to clearly established U.S. Supreme Court law. Accordingly, the Court grants Taveras' section 2254 petition on that ground. However, the Court writes especially to take account of a newly discovered document that further supports the conclusion reached by Judge Gorenstein.

Taveras was tried in absentia in New York State Supreme Court, New York County, and convicted on June 7, 1988 of two counts of murder in the second degree, and one count each of attempted murder in the second degree, criminal possession of a weapon in the third degree, and bribery in the second degree. (Report and Recommendation dated Jan. 6, 2005 at 3). He was sentenced, also in absentia, to two concurrent prison terms of 25 years' to life imprisonment for the murder convictions, a concurrent term of 8-and-one-third to 25 years' imprisonment for the attempted murder conviction, a concurrent term of one year's imprisonment for the weapons possession conviction, and a consecutive term of 5 to 15 years' imprisonment for the bribery conviction. (Notice of Appeal dated June 29, 1988, Ex. B to Mem. of Law in Supp. of a Pet. for a Writ of Habeas Corpus). That sentence was executed in 1997, after Taveras had been apprehended on other charges and returned to state court. (Report and Recommendation dated Jan. 6, 2005 at 3).

  Taveras subsequently appealed his conviction to the Appellate Division, First Department, and on March 22, 2001 that court dismissed his appeal without appointing counsel. (Order dated March 22, 2001, Ex. E to Mem. of Law in Supp. of a Pet. for a Writ of Habeas Corpus). Taveras then brought this petition pursuant to 28 U.S.C. § 2254, urging that he was denied the right to counsel for his as of right appeal of his criminal conviction in violation of the Sixth Amendment to the United States Constitution. As set forth in the Report and Recommendation, Judge Gorenstein concluded that the Appellate Division's failure to appoint appellate counsel for Taveras violated Taveras' Sixth Amendment rights in a manner that was contrary to clearly established federal law.

  Respondent objected to Judge Gorenstein's Report and Recommendation on two grounds. First, "that petitioner had failed to justify his request for poor person's relief by filing an affidavit detailing his entitlement to relief." (Objections to Magistrate Gorenstein's Report and Recommendation dated March 4, 2004 at 17; see id. at 17-19). Because petitioner had not filed an affidavit of indigency with the state court pursuant to N.Y.C.P.L.R. § 1101, respondent urged, the state was not required constitutionally to provide him appellate counsel, and therefore his section 2254 petition should be dismissed. (Id.; see also Answer and Exhibits in Opp'n to a Petition for a Writ of Habeas Corpus dated Aug. 11, 2003 ¶ 21). Second, respondent urged that even if Taveras had filed an affidavit of indigency, the fugitive disentitlement doctrine permitted the state court to dismiss Taveras' appeal without assigning counsel.

  In response to the former objection, petitioner for the first time provided the Court a copy of an "Affidavit to Proceed In Forma Pauperis and for Assignment of Counsel." That document bears the date and time stamp of the Appellate Division, First Department, and is marked "Received" by that court on June 10, 1998 — the time at which Taveras sought counsel to prosecute his appeal before the Appellate Division. (Affidavit to Proceed In Forma Pauperis and for Assignment of Counsel, Ex. 1 to Mem. of Law in Resp. to Obj. to Report and Recommendation dated Apr. 8, 2005).

  In the affidavit of indigency, filed pursuant to N.Y.C.P.L.R. § 1101, Taveras sets forth that he has "no real property, bank accounts, or any source of income," (id. ¶ 6), and thus is "unable to pay the cost, fees and expenses necessary to prosecute this criminal appeal proceeding," (id. ¶ 5), and "desires that [the Appellate Division] assign suitable counsel," (id. ¶ 6). Taveras' current counsel opined that this document was not part of the state court file because "in the extensive correspondence between the Clerk of the Appellate Division and Petitioner over the years, at some point the original affidavit was sent back to [Taveras] inadvertently." (Mem. of Law in Resp. to Obj. to Report and Recommendation dated Apr. 8, 2005 at n. 1). Respondent has not offered any other explanation for the late appearance of petitioner's affidavit of indigency. That affidavit bears a First Department date and time stamp and "Received" notation, and its authenticity has not been questioned.

  Because Taveras in fact did file an affidavit of indigency with the state court, this Court rejects respondent's objection that Taveras was not entitled to appellate counsel because he failed to file such an affidavit.*fn1 Respondent's sole other objection — that the fugitive disentitlement doctrine allowed the state court to dismiss Taveras' criminal appeal without assigning counsel — is also rejected for the reasons ably set forth by Judge Gorenstein.

  Accordingly, pursuant to 28 U.S.C. § 636(b)(1) this Court accepts Judge Gorenstein's Report and Recommendation dated January 6, 2005. Taveras shall be released from custody unless within 60 days of the entry of judgment in this matter his direct appeal to the Appellate Division, First Department, is reinstated and — if he satisfies that court as to his indigency — appellate counsel is appointed to represent him. Thereafter, his appeal shall proceed expeditiously.

  SO ORDERED.

20050912

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