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Rolle v. West

July 17, 2006

TYRONE ROLLE, PETITIONER,
v.
CALVIN WEST, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Garaufis, United States District Judge.

MEMORANDUM & ORDER

Tyrone Rolle ("Petitioner") filed pro se the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Western District of New York on January 12, 2005. It was transferred to this court on February 2, 2005. In the petition, Petitioner challenges his conviction, rendered on March 29, 1999 in the Supreme Court of New York, Queens County, of five counts of Robbery in the First Degree, one count of Attempted Robbery in the First Degree, one count of Rape in the First Degree, two counts of Attempted Rape in the First Degree, one count of Kidnapping in the Second Degree, three counts of Sexual Abuse in the First Degree, and one count of Criminal Possession of a Weapon in the Second Degree. (See Petitioner's Petition for a Writ of Habeas Corpus ("Pet.'s Writ"), at 1). Petitioner is currently serving a sentence of two consecutive twenty-five year terms of imprisonment. (Id.).

Currently before the court is the issue of how to proceed on Petitioner's "mixed petition." For the reasons set forth below, the petition is stayed and held in abeyance to permit the Petitioner to seek exhaustion of an unexhausted claim contained in his petition.

I. Procedural History

On March 7, 2005, this court issued an Order to Show Cause to the Respondent in this matter, directing the Respondent to show cause within thirty days of receipt of the order why a writ of habeas corpus should not be issued. (See Docket Entry No. 6). By letter dated March 22, 2005, Respondent, through the District Attorney's Office, Queens County, alerted the court to the "existence of an unexhausted claim in defendant's petition," namely Petitioner's Ground Three, which alleges ineffective assistance of appellate counsel. (Docket Entry No. 7). Respondent requested that Petitioner's petition be dismissed without prejudice so that Petitioner could return to state court to raise the unexhausted claim. (See id.).

By Order dated April 8, 2005, this court granted Petitioner fifteen days to inform the court in writing as to whether he had good cause for his failure to exhaust his ineffective assistance of appellate counsel claim, such that stay and abeyance of his mixed petition would be appropriate. See Rhines v. Weber, 544 U.S. 269 (2005). Alternatively, the Petitioner was told he could inform the court that he wished to withdraw his unexhausted claim and proceed only on those claims properly exhausted. (See M&O dated 4/8/05, Docket Entry No. 8). In response, on May 3, 2005, a letter from the Petitioner dated April 15, 2005 was filed with the Clerk of Court. The relevant portions of Petitioner's letter state as follows:

The petition for a writ of habeas corpus appears to be a mixed petition, but it is not. All claims that can be, and must be exhausted at the state level have been exhausted.

The claim of ineffective assistance of appellate counsel can be raised for the first time on a Federal Writ of Habeas Corpus. There are recent Supreme Court rulings to support that. There is also the ruling out of the U.S. Court of Appeals (second circuit) Hemstreet v. Greiner, 5/11/04, Docket # 02-2747.

Further, if this Court does not agree that the appellate counsel ineffectiveness claim can be raised for the first time on a Federal Writ I respectfully request a stay and time to exhaust that single point, Zarvela v. Artuz, 254 F.3d 374. (Letter from Petitioner dated 4/15/05, Docket Entry No. 9). Since receipt of Petitioner's letter, there have been no further decisions in this matter. Specifically, this court never ruled as to whether Petitioner's petition would be stayed and his exhausted claims held in abeyance while he pursued exhaustion of his ineffective assistance of counsel claim.

II. Discussion

A. Petitioner's Response to this Court's April 8, 2005 Order

The court accepts Petitioner's letter dated April 15, 2005 as a good faith and timely response to this court's Order dated April 8, 2005. Only one week after receiving my Order, Petitioner responded appropriately and attempted to plead good cause for failure to exhaust his unexhausted ineffective assistance of appellate counsel claim. Nonetheless, Petitioner incorrectly claims that an ineffective assistance of appellate counsel claim cannot be exhausted at the state level. His mistake, however, is understandable. To the extent that the Petitioner implies that a claim of ineffective assistance of appellate counsel cannot be raised on direct appeal, he is correct. Such a claim, because it implicates the very representation a petitioner receives on appeal, cannot be exhausted by the normal route of direct appeal to the Appellate Division. However, there exists an exclusive state court remedy to raise an ineffective assistance of appellate counsel claim, namely the coram nobis petition. Under New York State law, the writ of error coram nobis provides a specific procedure for raising a claim of ineffective assistance of appellate counsel that is filed in the Appellate Division following appeal. See generally Taylor v. Scully, 674 F. Supp. 462, 463 (S.D.N.Y. 1987); People v. Vincent, 50 N.Y.2d 901, 904-5 (1980). Indeed, the coram nobis petition is the only way to exhaust this type of claim for habeas purposes. See, e.g., Garcia v. Scully, 907 F. Supp. 700, 706-7 (S.D.N.Y. 1995) ("The issue of whether appellate counsel was ineffective . . . must be presented to the Appellate Division. The only procedure in New York for doing so is an application for a writ of error coram nobis to the Appellate Division department that confirmed the conviction."). Thus, because the Petitioner in the instant matter has failed to seek a writ of error coram nobis, he has not exhausted his claim of ineffective assistance of appellate counsel.*fn1

Accordingly, the Petitioner's pending petition is still a mixed petition, and this court is once again faced with the question of whether to stay his exhausted claims and hold them in abeyance while Petitioner is given an opportunity to exhaust his ineffective appellate counsel claim. I am aware, of course, that Petitioner was previously informed in April 2005 that he must exhaust or withdraw his unexhausted claim before this court could decide his petition. My previous order, however, did not specifically alert Petitioner to the fact that he needed to do so through a coram nobis petition, and it is clear from his responsive letter to the court that he was not aware of the required procedure. Because the Petitioner is pro se, and in light of the fact that he has in good ...


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