The opinion of the court was delivered by: John F. Keenan, United States District Judge
Carlos Rodriguez ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has also been known as Alberto Carrion. As any reader will surely recognize, this case has a tortured procedural history. The undersigned is, hopefully, among the last in a series of over ten members of the federal and state judiciary who have passed on an application of the Petitioner's. For the reasons that follow, the Court conditionally grants the petition.
A. Petitioner's Intent to Appeal His Conviction
Petitioner was arrested in Manhattan on April 4, 1994. He was charged in New York County Indictment No. 3131/94 with Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02). He was convicted after trial. On July 15, 1996, the Honorable Carol Berkman, Supreme Court, New York County, sentenced him as a predicate felon to an indeterminate term of three to six years' imprisonment. (7/15/96 Sent. Tr. at 11.)*fn1
Before Justice Berkman passed sentence, Petitioner's trial attorney, Richard Landes, Esq., stated the following: "And Mr. Rodriguez has asked me to place on the record that he is going to appeal this conviction." (Sent. Tr. at 10.) After sentencing, Mr. Landes stated: "I have given the defendant notice of his right to appeal and have advised him of his appellate rights." (Sent. Tr. at 12.)
The "notice" to which Mr. Landes referred is a one-page form titled "NOTICE OF RIGHT TO APPEAL" ("Notice").*fn2 The Notice directs the defense attorney to give a copy to the client "and state on the record that the defendant has been given written notice of his right to appeal." This was done. Addressing the defendant, the Notice instructs: "In order to exercise this right [to appeal], you must file a NOTICE OF APPEAL within thirty (30) days. This form can be obtained from the Clerk of the Court. If you desire your present attorney to file this notice, you must fill out and give or mail to him the bottom part of this page." Finally, the Notice provides that defendants without funds must contact the Appellate Division after filing their notice of appeal and request assignment of counsel and permission to proceed on the original record. At a hearing on this motion before the assigned magistrate judge, the Honorable Andrew J. Peck, Petitioner admitted that he received the Notice. (Tr., 2/6/03, at 20, 31-32, 40-41.)*fn3 It appears from the record, however, that he failed to complete the section directing his attorney to file the notice of appeal. At one point, he testified that he lost the Notice. (Tr., 2/6/03, at 41.)
On February 4, 1997, Petitioner appeared at a Parole Board Hearing at the Wende Correctional Facility in Alden, New York, where he was serving his sentence. He engaged in the following colloquy with one of the parole commissioners:
Q: I do note from your folder that you're currently serving a criminal possession of a weapon, third degree, that you've been sentenced to three to six years; correct?
Q: And you pled -- or excuse me, that was on a verdict?
Q: And you went to trial and you were found guilty?
Q: Okay. Do you have any appeals pending on that?
(Parole Hrg. Tr., at 3-4).*fn4 In fact, despite Petitioner's assertion to the contrary, no appeal was pending because Mr. Landes ...