United States District Court, S.D. New York
ATTORNEYS FOR PETITIONER DAVIS POLK & WARDWELL LLP By: Daniel
F. Kolb, Esq. Shahira D. Ali, Esq. Matthew Cormack, Esq.
Sarah Breslow, Esq.
ATTORNEYS FOR RESPONDENT CYRUS R. VANCE, JR. District
Attorney, New York County By: David M. Cohn, Esq.
Ivan Calaff ("Petitioner" or "Calaff")
has moved for a Certificate of Appealability
("COA") pursuant to 28 U.S.C. §§
2253(c)(1)(A) and (2), challenging the Court's October
18, 2016 opinion. For the reasons set forth below, the
Certificate is granted.
October 18, 2016 this Court denied Petitioner's writ of
habeas corpus. While the Court found that the Rights Notice
trial counsel gave Petitioner when he pled guilty to his 1993
conviction was unconstitutional as an unreasonable
precondition on Petitioner's right to appellate counsel,
Petitioner waived that right by waiting 19 years to perfect
November 28, 2016, Petitioner filed the instant motion for a
COA. The motion was taken on submission and marked fully
submitted on December 15, 2016.
COA is Granted Because There Are Contested Issues of
Constitutional Law and the District Court's Denial of the
Habeas Writ Rested on a Procedural Issue
petitioner whose habeas petition is denied by a federal
district court may not appeal that decision without a COA. 28
U.S.C. §§ 2253(c)(1). Functionally, the Second
Circuit Court of Appeals' local rules require the
district court to decide the issue of appealability before
the Second Circuit will consider it. See Second Circuit Rule
Second Circuit has found that a COA should issue when a
habeas petitioner "has made a substantial showing of the
denial of a constitutional right." Blackman v.
Ercole, 661 F.3d 161, 163 (2d Cir. 2011). The petitioner
must show that "reasonable jurists could debate whether
. . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further." Rhagi v.
Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (internal
other jurists could reasonably debate whether Petitioner in
this case could ever waive his right to appellate counsel
when the Rights Notice he was handed in 1993 and the First
Department procedures at that time violated his
constitutional right to appellate counsel. The Supreme Court
has held that if there is any doubt about whether to grant a
COA, the district court should grant the COA when it denied
the underlying habeas petition on procedural grounds, which
was the case here. Slack v. McDaniel, 529 U.S. 473,
484 (2000). Contrary to the Government's position, the
question of whether a petitioner can waive his constitutional
rights through inaction is a substantial question for the
Court of Appeals to consider.
District Court Can Properly Consider a COA After a Notice of
Appeal Has Been Filed with the Circuit Court
Government argues that the District Court here lacks
jurisdiction to issue a COA because the Petitioner has
already filed a notice of appeal. Petitioner filed the motion
with this Court three days before filing a notice of appeal
with the Second Circuit, but the Government argues that once
Petitioner filed the notice of appeal, the Second Circuit had
jurisdiction over the case. For this proposition, the
Government cites two cases from the Middle District of
Tennessee concerning Certificates for Probable Cause
("CPC"). See Cole v. Campbell, 670 F.Supp.
223, 224 (M.D. Tenn. 1987); Terrell v. Button, 661
F.Supp. 100, 102 (M.D. Tenn. 1986). However, subsequent
Circuit Court case law indicates that "the notice of
appeal did not strip [the district court judge] of the
authority to issue a CPC." Wilson v.
O'Leary, 895 F.2d 378, 382 (7th Cir. 1990); see also
Williams v. Chrans, 50 F.3d 1356, 1357 (7th Cir.
1995). The concern animating this rule is that the two courts
might take duplicative action. However, that concern is not
present here as the Second Circuit will not rule on the COA
issue without a prior ruling from the district court.
it is appropriate for the District Court to issue a ruling on
the COA question and the District Court finds that it is
appropriate to grant the COA because reasonable jurists could
dispute whether ...