The opinion of the court was delivered by: John Gleeson, United States District Judge
John Hammond petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 citing the fact that as of March 5, 2007, the date the instant petition was filed, four successive appellate attorneys had failed to perfect Hammond's direct appeal of his December 13, 1999 convictions for burglary and petit larceny. For the reasons discussed below, it appears at least likely (if not certain) that the delay in Hammond's appeal amounted to a due process violation. However, because Hammond has stated that he does not want the only relief available to him on such a finding -- an order setting a timetable for the decision of his direct appeal by the state court -- the petition is dismissed without prejudice to renewal should Hammond seek such relief at a later date.
On November 26, 1998, the police arrested Hammond in connection with the robbery of money, jewelry, clothing, and electronics equipment from an apartment in Brooklyn. Hammond was found guilty by a jury of two counts of burglary in the second degree and two counts of petit larceny. He was sentenced on March 14, 2000 as a persistent violent felony offender to 22 years to life in prison. On March 20, 2000, Hammond filed a notice of appeal, and he subsequently moved for appointment of counsel for the purposes of that appeal. The Supreme Court of the State of New York, Appellate Division, Second Department, appointed the Legal Aid Society as counsel for Hammond on May 16, 2000.
On November 13, 2000, the Appellate Division sent a "180 Day Assignment Status Letter" to the Legal Aid Society. It responded that certain minutes were missing from the trial record, and that it would assign the case to a staff attorney when the record was complete. On March 5, 2001, the Legal Aid Society indicated that it was still missing records from a Sandoval hearing, and that it had recently requested those records.
On March 29, 2002, the Legal Aid Society moved to be relieved, citing Hammond's potential claim that an invalid guilty plea led to a conviction that formed part of the basis for his persistent violent felony offender enhancement. This issue would pose a conflict, the Legal Aid Society argued, because it had represented Hammond in the case resulting in the earlier conviction, and it had not raised the issue during those proceedings. Hammond also sought reassignment of counsel, albeit for a different reason; he complained that the Legal Aid Society had not provided him with the grand jury minutes he had requested. On August 15, 2002, the Appellate Division granted the Legal Aid Society's motion to be relieved, and appointed Patrick Hayes as replacement counsel. People v. Hammond, No. 11926/98 (2d Dep't August 15, 2002) (decision and order on Legal Aid Society's motion to be relieved). The court directed the Legal Aid Society to turn over all papers in the case to Hayes.
Shortly after the re-assignment, Hayes filed a motion to be relieved due to a heavy caseload. The court granted that motion on November 1, 2002, and ordered Hayes to turn over all documents in the case to his successor as appellate counsel, Ethel Ross. People v. Hammond, No. 11926/98 (2d Dep't November 1, 2002) (decision and order on Hayes's motion to be relieved).
The case languished for three years after it was assigned to Ross. On May 5, 2003, the Appellate Division sent a "180 Day Assignment Status Letter" to her, to which she responded that she was still waiting to receive the transcript in Hammond's case, and that she was working on six appeals at that time. In response to the court's further inquires in August 2003, Ross indicated that she had three major appeals to perfect before she could begin work on Hammond's case. The court again inquired as to the status of the case in February 2004, and Ross reported that she was still burdened by five other appeals and had yet to receive the transcript in Hammond's case. See Ross Letter (March 18, 2004).
By motion dated August 10, 2004, accompanied by a letter dated July 29, 2004, Hammond requested that counsel be appointed to replace Ross. He also sought copies of court transcripts. Hammond stated in the letter to the Appellate Division that it "has been two years since Ms. Ross's appointment by this Court, and it is only now as [of] 7/7/04 that she has requested of me my copy of the Transcripts to presumably, (from her recent letter) prosecute my direct appeal from the above said judgment." Resp. Ex. H at 5. Hammond also complained that Ross had not provided him with certain of the transcripts he requested, and that she had refused to pursue a motion pursuant to N.Y. Crim. Proc. Law § 440.10 to expand the record. Ross herself consented to Hammond's request for replacement counsel. See Ross Letter, September 25, 2004. The Appellate Division denied Hammond's motion and ordered Ross to prosecute the appeal expeditiously. People v. Hammond, No. 11926/98 (2d Dep't October 13, 2004) (decision and order on motion for assignment of new appellate counsel and for copies of trial transcripts). The court also mailed copies of the transcripts to Ross.
By letter dated December 19, 2004, Ross again informed the court that she would need to complete three other appeals before turning to Hammond's case. Ross sent a similar letter on March 29, 2005. On July 5, 2005, Ross reported that two of the three cases remained. On July 28, 2005, Hammond wrote Ross a letter inquiring as to the status of the appeal, and as to the possibility of raising a speedy appeal claim. See Pet. Ex O, Hammond Letter (July 28, 2005) ("Why have you not discussed the possibility of submitting a motion to have the conviction dismissed due to the delay of my right to direct appeal? . . . Please advise me of the law regarding appeal delays, Ms. Ross.").
On October 3, 2005, Ross returned the Hammond transcripts to the Appellate Division. On its own motion, the court relieved Ross as counsel on October 26, 2005 and ordered Ross to turn over all documents in the case to replacement counsel Stuart Birbach.
People v. Hammond, No. 11926/98 (2d Dep't October 26, 2005) (decision and order on Ross's motion to be relieved), vacated and substituted by People v. Hammond, No. 11926/98 (2d Dep't December 4, 2004) (clarifying that the substitution of Ross had been made on the court's own motion).*fn1
Birbach was notified of his appointment by letter dated October 28, 2005, and he received the trial transcripts on or about November 4, 2005. On November 25, 2005, Ross sent Birbach the files for Hammond's case. On May 26, 2006, Birbach informed the court that he was copying the entire case file to be sent to ...