United States District Court, E.D. New York
MEMORANDUM & ORDER
RAYMOND J. DEARIE, District Judge.
James Allen Gordon petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This case begins with a grisly series of attacks on five women in a Queens home in the early morning hours of July 10, 1996. Three of the women were killed. Of those three, two were sexually assaulted. One of the survivors was beaten in the head with a hammer. The other survivor, who was twice choked to unconsciousness, alerted the police after leaping, naked, from a second-floor window and fleeing to the safety of a neighbor's house.
Gordon was tried and convicted in January 1999. The subsequent proceedings-like the pretrial proceedings and the trial itself-have been tortuous and protracted, in part due to Gordon's own actions. The state appellate process lasted over a decade. Gordon's habeas petition, which asserts claims of unreasonable delay in the appellate process and ineffective assistance of appellate counsel, has been pending in the federal system for an additional four years. For the reasons set forth below, the petition is denied on its merits.
Within hours of the attacks, Gordon fled to Memphis, Tennessee. He was quickly identified as a suspect. On August 20, 1996, he was arrested in Memphis on a New York parole violation warrant related to a previous conviction. At the police station in Memphis, Gordon waived his Miranda rights and confessed to an NYPD detective. In his confession, he claimed that he was provoked because earlier in the night the victims, accompanied by two masked male accomplices, snubbed out a cigarette on his chest and forced him to have sex with several of the female victims at gunpoint. Because Gordon had signed a waiver of extradition as one of the conditions of his parole, he was flown back to New York the next day.
Gordon was the first capital defendant in Queens County following the reinstatement of the death penalty in New York in 1995. He was represented for two years by a team from the Capital Defenders Office. Through counsel, he moved to suppress his statements to the police, some of the physical evidence, and the eyewitness identifications. The trial court denied the motions. People v. Gordon, 176 Misc.2d 46, 56 (N.Y. Sup.Ct. 1998). In April 1998, just as the case was ready for trial, the trial court granted Gordon's application to appoint new counsel. Two private attorneys, Christopher Renfroe and Russell Morea, were appointed and the trial was adjourned for five months to allow them time to prepare. On the eve of jury selection, Gordon moved to proceed prose. The court reluctantly granted the motion, but appointed Refroe and Morea to serve as advisors and to support Gordon as necessary during trial. People v. Gordon, 179 Misc.2d 940, 941-45 (N.Y. Sup.Ct. Jan. 29, 1999).
The evidence introduced against Gordon was diverse and voluminous. The two surviving victims identified Gordon as their attacker. This identification was particularly probative because the victims had known him for several months before the attacks-a fact to which Gordon himself alluded as he cross-examined one of the victims. Gordon's confession was read aloud to the jury, although he later took the stand and testified that it was fabricated by the police. Gordon's cousin testified that Gordon had told him several weeks prior to the crimes that he planned to rob the women. A bag of bloody clothes was found in Gordon's backyard. One of Gordon's neighbors identified a hammer that was used as weapon during the attacks and testified that he had loaned the hammer to Gordon earlier in the evening. Finally, semen recovered from one of the dead women matched Gordon's DNA profile. In response, Gordon's then-girlfriend (his wife at the time of the trial) took the stand and testified that Gordon had called her twice from his home during the early morning hours of July 10. Whether or not the jury credited this testimony, it did not establish a strong alibi because Gordon lived across the street from the scene of the crime.
Gordon was convicted of seven counts of first degree murder, two counts of attempted murder in the first degree, rape in the first degree, sodomy in the first degree, and attempted sexual abuse in the first degree. The first degree murder counts were death eligible. At the sentencing phase, the jury unanimously sentenced Gordon to life without parole on three of the death-eligible counts. The jury deadlocked on the appropriate sentence for the four remaining death-eligible counts. The judge then sentenced Gordon to consecutive indeterminate sentences of twenty-five years to life on each of the deadlocked counts, as set forth in C.P.L. § 400.27.
In March 1999, the Appellate Division appointed Appellate Advocates to represent Gordon. The 8, 000 page record became available in January 2000. Given the weight of evidence against Gordon, the Appellate Advocates lawyer was concerned that a successful appeal would lead to retrial and that, at the conclusion of trial, Gordon might again face the death penalty on the four deadlocked counts. Although it was an open question in New York whether a capital defendant was death eligible at resentencing for counts on which the jury had previously deadlocked, the Supreme Court of Pennsylvania had twice ruled that capital defendants could face the death penalty for a second time under similar circumstances. See Commonwealth v. Sattazahn, 563 Pa. 533, 545-51 (2000); Commonwealth v. Martoramo, 535 Pa. 178, 190-200 (1993). Accordingly, before honing the issues that he planned to present on appeal, the Appellate Advocates lawyer asked Gordon to provide a notarized statement indicating that he understood the risks of proceeding.
Correspondence ensued. In a series of letters, the lawyer insisted upon the notarized acceptance of risk. Gordon refused. Instead, he insisted on a full description of the issues that Appellate Advocates intended to advance on his behalf. The Appellate Advocates lawyer explained that he could not provide a full issues list without spending a significant amount of time reviewing the voluminous record and would not undertake that task if Gordon did not intend to proceed.
The matter came to a head in December 2000 when the Appellate Advocates lawyer informed Gordon that he would file an abandonment motion if Gordon failed to provide the notarized acceptance of risk by late January 2001. Gordon acted first. In early January, he moved to relieve Appellate Advocates. The Appellate Division denied Gordon's motion in February. In mid-March, the Appellate Advocates lawyer informed Gordon that he would file an abandonment motion if Gordon did not provide the authorization by April 10. Gordon did not respond. In mid-April, Appellate Advocates moved to abandon. After several rounds of briefing, in October 2001 the Appellate Division removed Appellate Advocates and appointed Legal Aid to pursue Gordon's appeal.
The record does not indicate what, if anything, occurred over the course of the next fourand-a-half years. In June 2004, however, in an unrelated case, the New York Court of Appeals found New York's death penalty statute unconstitutional. See People v. Lavalle, 3 N.Y.3d 88, 116-32 (2004). The rationale that Appellate Advocate had advanced for not proceeding with the appeal absent authorization was mooted.
Two years later, in May 2006, Legal Aid filed a brief in the Appellate Division on Gordon's behalf. The brief made three arguments: (1) the trial court's decision to allow Gordon to represent himself was inappropriate; (2) the trial court erroneously denied the application, made by Gordon's counsel, for a competency examination; and (3) the trial court improperly declined to charge the jury with the affirmative defense of extreme emotional disturbance, as Gordon's legal advisors had requested at the end of trial. Gordon contends that he did not become aware of Legal Aid's appellate brief until nearly one year later, in April 2007, when the state served him with its response.
Shortly thereafter, Gordon sought permission from the Appellate Division to file a supplemental brief. His Legal Aid attorney filed a motion in support, explaining that he had raised all viable issues, but that he believed a supplemental brief was appropriate given that Gordon was serving a life sentence without parole. The motion was denied. Gordon again moved to file a supplemental brief, explaining that his attorneys had not informed him that they had filed a brief on his behalf. This time, the Appellate Division granted the motion and permitted Gordon to file a supplemental brief.
Gordon, however, did not file the supplemental brief. Instead, he sought a series of extensions of time to respond. The Appellate Division granted five extensions totaling nearly two years. The final extension set a deadline of June 9, 2009. Gordon missed the deadline. Three days later, on June 12, Gordon filed a sixth request for an extension. The Appellate Division denied the motion and vacated its earlier decision granting him permission to file a supplemental brief. ...