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