Calaff v. Capra, Superintendent, Sing Sing Correctional Facility
OPINION re: 1 PETITION FOR WRIT OF HABEAS CORPUS pursuant to 28 U.S.C. 2254. Petitioner Ivan Calaff ("Petitioner" or "Calaff") has petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that the New York criminal procedure requiring indigent defendants to apply for appellate counsel violated his constitutional right to counsel. (As further set forth in this Order.) For the reasons stated above, Petitioner's petition for writ of habeas corpus is denied. (Signed by Judge Robert W. Sweet on 10/18/2016) (cf)
UNITED STATES DISTR I CT COURT
SOUTHERN DISTRICT OF NEW YORK
ELECfRONICALLY FILEb l f
DATE FILED: l
- ---···· ''I
IVAN CALAFF ,
15 Civ . 7868
- against OPINION
MICHAEL CAPRA , SUPER I NTENDENT , S I NG
SING CORRECT I ONAL FACILITY,
-------------- - --------------------x
A P P E A RA N C E S :
ATTORNEYS FOR PETITIONER
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York , NY 10017
Daniel F . Kolb , Esq .
Shahira D. Al i , Esq .
Matthew Cormack , Esq.
Sarah Breslow, Esq.
ATTORNEYS FOR RESPONDENT
CYRUS R . VANCE , JR.
District At torney, New York County
One Hogan Place
New York , NY 1 0013
David M. Cohn , Esq.
Petitioner Ivan Calaff ( "Petitioner" or " Calaff") has
petitioned for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 , alleging that the New York criminal procedure requiring
indigent defendants to apply for appellate counsel violated his
constitutional right to counsel .
For the r easons set forth
below, the petition is denied.
The Petitioner seeks habeas relief based on his loss of his
constitutional right to appointed counsel and consequent loss of
his right to appeal a 1993 conviction.
The State seeks denial
of the writ because the Petitioner is not in custody under his
1993 convict i on , the state court did not violate established
Supreme Court precedent, and the Petitioner failed for 19 years
to prosecute his appeal.
The issues presented are unique and significant.
concluded that the State's procedures unreasonably apply the
constitutional right to counse l, that the Petitioner is in
custody under Lackawanna Cty. Dist. Attorney v. Coss,
(2001), and that the state court decision that Petitioner
failed to prosecute his appeal did not constitute a
Petitioner's state custody arises from a 2004 conviction
for second-degree burglary.
Petitioner's sentence for this
conviction was enhanced because it was Petitioner's third
violent felony conviction, and he was sentenced to a term of 16
years to life imprisonment as a persistent violent felony
offender, in part, based on a 1993 conviction for attempted
second-degree burglary to which he pled guilty.
On February 24, 1993, Petitioner pled guilty to an
attempted-second degree burglary that took place on January 14,
According to the criminal complaint, the resident of an
apartment came home and discovered two burglars in her
apartment, who then ran out of the apartment with cash and
(Respondent's Appendix ("RA"), Ex. A.)
a co-defendant, William Martinez, were apprehended within blocks
of the apartment only 10 minutes after the burglary took place.
(RA, Ex. Eat 1.)
at the scene.
The victim identified both men in a "show-up"
Each of the defendants were in possession of
jewelry belonging to the victim.
(RA, Ex. A.)
Petitioner pled not guilty to second-degree burglary at his
arraignment on February 9, 1993.
(Defendant's New York Court of
Appeals Appendix "A" - 107-108.)
Robert Dorff, Esq. appeared as
Petitioner's appointed counsel.
At the next court
appearance on February 24, 1993, Mr. Dorff was not present.
The Court asked if anyone had seen or heard from Mr.
When a court officer told the Court, "I
haven't see [sic] Mr. Dorf [sic], Your Honor," the trial judge
assigned Bruce Klang, Esq.
("Klang") to represent Calaf f.
No one objected to the substitution.
was then adjourned for a second call, at which point Calaff
accepted the People's plea deal to a reduced charge of attempted
second degree burglary.
(A-6, 8-11, 16-18.)
Calaff was sentenced one . month later.
At his sentencing
the trial judge instructed Klang to advise Calaff of his
"Appellate rights and advise me that you have done so."
On the record, Klang stated that he was "handing my client
written notice of his right to appeal, which indicates th[e]
steps he can take to perfect that appeal."
thereafter timely filed a notice of appeal on Petitioner's
The appellate Notice of Right to Appeal ("Rights Notice")
that Klang handed to Calaff at his sentencing requires the Court
to give the form to the defense attorney and stated as follows:
The defense attorney must then give it to his/her client
and state on the record that the defendant has been given
written notice of his/her right to appeal.
The Rights Notice explained, "You have a right to appeal a
conviction" and that "you must file a notice of appeal within 30
The Rights Notice provided Petitioner with the
option of have his "present attorney" file the notice, then
provided "[i]f you have appeared prose .
. " which described
how pro se litigants could file a notice of appeal without
The Rights Notice further stated "If you are
without funds, after the notice of appeal has been filed,
must write to the Appellate Division requesting that counsel be
assigned to you for the purpose of the appeal" and this letter
should "request that you be granted permission to appeal upon
the original record" and "mention that you are without funds
with which to retain counsel or to purchase a transcript of the
The Rights Notice instructed that, "You
must write this letter yourself."
The Rights Notice
did not include information about whether a "present attorney"
would be involved in the filing of such a letter with the
On September 30 , 2004, Petitioner was convicted in a new
case of burglary in the second degree.
At his sentencing for
the 2004 conviction, Petitioner was adjudicated a violent
persistent felony offender , based in part on his 199 3 conviction
and was sentenced to 16 years to life impris onment.
Petiti oner obtained counsel and appealed his 2004
convicti on .
In 2006, the Appellate Division, First Department,
affirmed Petitioner's conviction of his 2004 conviction, and on
August 15, 2006 , the New York Court of Appeals denied leave for
that 2004 conviction.
People v. Calaff,
30 A.D.3d 193 (1st
Dep't 2006), lv. denied , 7 N.Y.3d 810 (2006).
In 20 1 2 , Petitioner with the help of the Center for
Appellate Litigation, challenged his 19 93 conviction on the
grounds that the trial Justice had improperly replaced Calaff's
assigned counsel and appointed new counsel.
The People argued
that after 19 years, Calaff had abandoned his appeal and that
the appeal also failed on the merits.
The appeal was
unanimously dismissed on February 19, 2013 by the Appellate
Division, First Department.
(1st Dep't 2013).
People v. Calaff,
103 A.D.3d 500
Petitioner sought leave to the Court of
Appeals, which was granted on September 6, 20 1 3 .
Calaff, 21 N.Y.3d 1 072
The Court of Appeals decided
four consolidated cases and affirmed the Appellate Division's
dismissal of Ca laff's appeal.
People v . Perez et al., 23 N.Y.3d
89 (2014) .
Petitioner sought a writ of certiorari to the United States
Supreme Court, which was denied on October 6, 2014.
New York , 135 S.Ct. 273
On October 2 , 2015, Petitioner filed this petition for a
writ of habeas corpus .
The petition was heard and marked fully
submitted on April 21 , 2016.
Standard of Review
Section 2254 of the 1996 Antiterrorism and Effective Death
Penalty Act ("AEDPA") provides a federal remedy for state
prisoners if their continued custody is in violation of federal
Pub.L. No. 104-132, 100 Stat. 1214, codified at 28 U.S.C
2254(a) ; see Chandler v. Florida, 449 U.S. 560, 571, 101 S.Ct.
802, 66 L.Ed.2d 740 (1981).
("This Court has no supervisory
authority over state courts , and, in reviewing a state court
judgment, we are confined to evaluating it in relation to the
on federal habeas review.
Errors of state law are not cognizable
Estelle v . McGuire, 502 U.S.
62 , 71-
72, 11 2 S . Ct. 475, 116 L.Ed.2d 385 (1991).
Petitioners bear the
burden of proving violations of federal law by a preponderance
of the evidence .
See Jones v. Vacca, 126 F.3d 408 , 415 (2d Cir.
A state court's adjudication may be overturned only if it
(1) resulted in a decision that was contrary to, or
inv olved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in li ght of the
evidence presented in the State court proceeding.
2254 (d) (1 - 2); see Williams v. Taylor, 529 U.S. 362 ,
375-76 , 120 S . Ct. 1495, 146 L.Ed.2d 389 (2000) .
With respect to the "contrary to" clause , the writ may
issue in two circumstances:
first , if the state court decision
"applies a rule that contradicts the governing [Supreme Court]
law"; and second, if the state court decision addresses a set of
facts "materially indistinguishable" from a relevant Supreme
Court case and arrives at a result different to that reached by
Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166,
155 L.Ed.2d 144
(quoting Williams , 529 U.S. at 405 - 06) .
The " clearly established Federal law" refers to Supreme Court
holdings, as opposed to the dicta, as of the time of the
relevant state court decision.
See Williams, 529 U.S. at 412.
A state court decision involves an "unreasonable application" of
Supreme Court precedent when the state court either "identifies
the correct governing legal rule" from the Supreme Court's cases
but "unreasonably applies it to the facts" of the case, or
"unreasonably extends a legal principle from [the Court's]
precedent to a new context where it should not apply or
unreasonably refuses to extend that principle to a new context
where it should apply."
Id. at 407.
Under the "unreasonable application" clause, "a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the state-court
decision applied clearly established federal law erroneously or
Id. at 411.
"Rather, it is the habeas
applicant's burden to show that the state court applied [Supreme
Court precedent] to the facts of his case in an objectively
Woodford v. Visciotti, 537 U.S. 19, 25,
123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
Any determination of a
factual issue made by a state court must be presumed correct
unless the petitioner can show by clear and convincing evidence
that such presumption should not apply.
See 28 U.S.C.
In addition , the Supreme Co u r t' s jurispru de n ce on the
" unreasonable app li cation " cla u se of§ 2254(d) ( 1 ) makes " clear
that whether a sta t e court ' s decision was un r easonab l e mu st be
in l i ght of the record the court had before i t ."
Jackson , 54 2 U. S . 649 , 652 , 1 24 S . Ct . 2736 , 159 L.E d . 2d 683
I n Cullen v . Pinho l ster , t h e Co u r t r ecent ly e mphasized
that , " [i]f a c l a im has been adjudica t ed on t he mer i ts by a
state court , a federal habeas Pet i t i oner mus t overcome the
limitation o f§ 2254(d) (1 ) on t h e record that was before that
state c o urt ."
Ed . 2d 557
563 U. S . 170 , 184 , 131 S. Ct. 1388 , 1 400 , 179 L.
The Procedure Requiring Petitioner to Apply for Appellate
Counsel Is an Unreasonable Restriction of His Right to
a. An Indigent Criminal Defendant Must Be Provided
Counsel on Their First Appeal
"'[ The assistance of counsel ] is one of t he safeguards o f
the Sixth Amendment deemed necessary to i nsure fundamenta l h uman
rights o f life and li berty .
The Sixth Amendment stands as
a constant admonit i on t hat i f the cons t i tutional safegu ards it
provides be lost , justice will not stil l be done .' "
Gideon v .
Wainwright , 372 U. S . 335 , 343 (1963)
(quoting Johnson v . Zerbst,
304 U. S. 458, 462 (1938)).
The United States Supreme Court app l ied this concept to the
right to counsel on criminal appeals, holding that a state
cannot administer criminal appeals in a manner that
"discriminate[s ] against some convicted defendants on account of
their poverty. "
Douglas , 372 U.S . at 355 (citing Griffin v.
Illinois , 351 U. S. 12 (1956).
Griffin held that "to deny
adequate review to the poor means that many of them may lose
their life , liberty or property because of unjust convictions
which appellate courts would set aside. "
Griffin, 351 U.S. at
Douglas and its progeny have held that " the Fourteenth
Amendment guarantees a criminal defendant the right to counse l
on his first appeal if the state has provided such an appeal as
of right. "
Taveras v. Smith , 463 F.3d 141 , 147 (2d Cir . 2006)
(New York does provide a first appeal as of right , so Douglas
applies to defendants in New York) .
Griffin required the poor
to pay for and furnish a copy of the trial transcript in order
to appeal , which v i olated the Due Process and Equal Protection
Clauses because this was a form of "invidious discrimi nation . "
Griffin , 351 U.S. at 1 7 -1 8.
Douglas app l ied Griffin to hold
that appointment of appe l late counse l to the indigent could not
depend on a pro se pre l iminary determination of whether the
appeal had merit .
Douglas , 372 U.S. at 355 .
Douglas established in 1963 that criminal defendants are
entitled to counsel on appeal (as long as the state provides for
a first appeal as of right) .
Today 48 states, the federal
government , and New York ' s Second Appellate Department all
provide indigent defendants with appointed counse l on appeal or
provide them counsel to assist in obtain i ng appo i nted appel l ate
(See , Petitioner's Br . at 1, n . 1 . )
Mich i gan and New
York ' s First , Third, and Fourth Appellate Departments are the
on l y jur i sdict i ons that do not provide counse l to assist in the
appellate process .
b. The First Department's Procedures for Appointing
Appellate Counsel to Indigent Defendants Are
The Respondent contends that an appellate court may require
Petitioner to satisfy "reasonable precond i tions on her right to
Goeke v. Branch , 514 U.S. 115 , 119-120 (1995).
Wh i le
there can be reasonable precond i tions on the r i ght to appellate
counse l , the preconditions in this case were unreasonable
because the Rights Notice Petitioner ' s attorney handed him
during his 1993 sentencing was confusing and deficient in
describing what he needed to do to obtain appellate counsel.
Here, neither the trial judge nor the Rights Notice
adequately explained Petitioner's right to appellate counsel,
which functioned as an unreasonable precondition on Ca l aff's
right to appellate counsel .
At the sentencing hearing, the
trial judge directed Klang to "advise him of his Appellate
rights and advise me that you have done so."
replied to the trial judge that he was "handing my client
written notice of his right to appeal, which indicates th[e]
steps he can take to perfect that appeal."
Calaff was not
advised that he would be unrepresented after counse l noticed his
appeal , and the steps Calaff would need to take in order to
obtain appellate counsel were not explained, except as set forth
in the Rights Notice.
Calaff was not advised that:
(1) he would no longer have
an attorney after Klang noticed his appeal; and (2) he would
need to draft a notarized letter describing his financial
circumstances in order to obtain new appellate counsel to
perfect that appeal.
(A- 29 . )
These steps violated clearly
established Supreme Court precedent because "the Sixth Amendment
guarantees a defendant the right to have counsel present at all
'critical' stages of the criminal proceedings."
Louisiana, 556 U.S. 778, 786 (2009)
388 U.S. 218, 227 - 228
(quoting United States v.
As the Tenth Circuit has
f ound , counse l was required for Calaff at this critical step in
the criminal process after sentencing as he begins the appeals
Baker v. Kaiser,
929 F.2d 1495, 1499 (10th Cir. 1991)
("The right to counsel is required in the hiatus between the
termination of trial and the beginning of an appeal in order
that a defendant know that he has the right to appeal, how to
initiate an appeal and whether, in the opinion of counsel, an
appeal is indicated.").
The Rights Notice was unreasonably confusing for a pro se
indigent defendant because it did not clarify that Petitioner
was no l onger represented by counsel.
In describing h ow to file
a notice o f appeal, the Rights Notice provided Petitioner with
the option of have his "present attorney" file the notice.
discrediting the self-serving affidavit in which Petitioner
c laims that Klang promised that he would "take care of" the
appeal, Klang did file the notice of appeal.
Pursuant to the First Department's procedures Calaff l ost his
counse l as soon as Klang noticed his appeal
Codes, R & Regs. Tit.22,
(See N.Y. Comp.
The Rights Notice
failed to make clear that he was then unrepresented and needed
to complete additional steps to obtain appellate counsel and to
perfect his appeal.
The result of this procedure was
that Petiti o ner was effectively denied the right to counsel at a
"critical stage" of his case.
Baker v. Kaiser,
929 F.2d at
It is not surprising that 48 states and New York's Second
Department all provide counsel at this critical stage between
noticing and perfecting an appeal
(or at least until the
defendant obtains counsel to perfect the appeal) because to deny
a criminal defendant counsel at this critical stage violates the
appellate due process rights guaranteed by Griffin and Douglas.
For defendants without a "present attorney," the Rights
Notice provided information "[i]f you have appeared prose .
" describing how pro se litigants can file a notice of appeal
The Rights Notice next explained "If
you are without funds, after the notice of appeal has been
filed, you must write to the Appellate Division requesting that
counsel be assigned to you for the purpose of the appeal."
However, the Rights Notice did not state that this section
als o applied to defendants with a "present attorney."
the reasonable precondition in Goeke merely requiring the
defendant not to flee while an appeal is pending, it was
unreasonable to require Petitioner, who could have incorrectly
believed he was represented by counsel, to know he too needed to
submit the letter proving his indigency.
514 U.S. at
Even if Calaf£ understood the Rights Notice, he would have
needed to draft a notarized letter on his own in order to prove
The Rights Notice's instruction to write a
notarized letter was unreasonable because in Halbert the Court
noted that U.S. prison populations are plagued by substantial
Halbert v . Michigan,
605 , 621
(finding that 68% of the state prison population did not
complete high school and "many lac k the most basic literacy
Halbert found that "seven out of ten inmates
fall in the lowest two out of five levels of literacy-marked by
an inability to do such basic tasks as write a brief letter to
exp lain an error on a credit card bill."
many inmates "have l earning disabilities and mental
Despite the challenges for inmates
identified by the Supreme Court in Halbert with basic reading
and writing skills, in New York's Firs t
defendants are expected to read and comprehend the confusing
Rights Notice, then draft a letter in order to obtain the
appellate counsel guaranteed to them under the Court 's decision
Next, the Rights Notice directs defendants that, "You must
write this letter yourself."
A criminal defendant
should have a lawyer at such a critical stage in their appeals
"Navigating the appellate process without a lawyer's
assistance is a perilous endeavor for a layperson," a task even
more challenging for the "many [state prisoners who]
most basic literacy skills."
Halbert v. Michigan,
545 U.S. at
While a lawyer may be able to discern that this Rights
Notice requires an indigent person to draft a letter regardless
of the opt ion they chose for how to notice the appeal, it is
unreasonable to require a pro se defendant to understand that
they were no longer represented by counsel and must follow this
two-step process in order to obtain a new lawyer to perfect
Goeke, 514 U.S. at 119-120.
It was at this
critical stage that Calaff needed counsel to navigate the
Baker v. Kaiser,
929 F.2d at 1499.
due process rights were violated when he was required to
complete "a meaningless ritual, while the rich has a meaningful
Douglas, 372 U.S. at 358.
Here it was a meaningless
ritual for the First Department to require Petitioner, pro se,
to understand based on the Rights Notice that he needed to write
the notarized letter proving indigency and requesting appellate
counsel , just as the prel i minary merits rev i ew p r ocedure i n
Therefore , the First Department ' s procedure as
articulated in the Rights Notice was unconst i tutiona l as an
unreasonable precondit i on on the right to appellate counsel .
The Petitioner Was "In Custody" for His 1993 Conviction
In order to bring a habeas action , the petitioner must be
" in custody pursuant to the judgment of a State court . "
U.S . C .
This requirement means that the petitioner in
a habeas action must be in state custody pursuant to the
"conviction or sentence under attack. "
488, 490 (1989) .
Maleng v . Cook , 490 U. S .
Respondent argues that this requirement bars
the instant action s i nce Petitioner is in custody for his 2004
conviction and has already "ful l y served" the sentence for his
1993 conviction .
75 , 76-77
United States ex rel . Myers v . Smith , 444 F.2d
(2d Cir. 197 1 ).
The general rule that has been adopted by the Supreme Court
. a prior conviction used to enhance a federal
sentence is no longer open to direct or collateral attack
in its own right because the defendant failed to pursue
those remedies while they were avai l able (or because the
defendant did so unsuccessfully) , then that defendant ...
may not collateral l y attack his prior conviction through a
motion under § 2255 ."
Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. at 402
Daniels v. United States, 532 U.S. 374, 382 (2001)).
Lackawanna, the Supreme Court extended the rule applied in
Daniels (a habeas case brought under
2255) to habeas petitions
Lackawanna, 532 U.S. at 382.
However, this action is not barred by the "in custody"
requirement because the Supreme Court in Lackawanna provided for
several exceptions to the ability of petitioners to challenge a
prior conviction used to enhance a state sentence.
opinion provided for an exception "where there was a failure to
appoint counsel in violation of the Sixth Amendment."
A majority of the Court provided for other exceptions.
Justice Souter's dissent incorporated his dissent from Daniels,
which found that "there is no excuse for picking and choosing
among constitutional violations" instead finding that a
defendant should be able to challenge any sentencing enhancement
based on a constitutional violation in a prior case .
532 U.S . at 391 (Souter, J. dissenting)
Lackawanna, 532 U. S. at 408
(Souter, J. dissenting)).
In addition to those three Justices who would allow a
challenge to a prior conviction on any constitutional ground,
three members of the majority in Lackawanna further found that,
"It is n o t always the case , however , that a defendant can be
faulted for fa i ling to obtain timely rev i ew of a const i tutiona l
53 2 U. S. at 405 .
The plurality provided examp l es when
this might be the case , though there is no indication i n the
opinion that the list of examples , which was dicta , was
This is just such a case in which Calaff did
not br i ng a t i mely appea l for no fau l t o f his own beca u se
requiring Calaff to properly interpret the confusing Rights
Notice was an unreasonable precondition on his right to
appel l ate counsel .
Goeke , 5 1 4 U. S . at 119 -1 20.
The State Court Determination on Waiver Does Not Raise a
Resp o ndent argues that Petitioner waived his appe ll ate
rights by waiting 1 9 years to perfect his appea l, which amounted
to wil l ful neglect and a conscious choice not to appeal his
con v icti o n .
Responden t argues this was waiver because "a
defendant who i s proper l y informed of h i s appella t e rights may
let the matter rest and then claim he did not waive t he
r i ght to appeal. "
People v . West , 100 N. Y. 2d 23 , 26
However, Petit i oner argues t hat he did no t " i ntel li gent l y and
understandingly waive the ass i stance of counse l" because when
"the assistance o f c ounsel i s a constitutional requisite , the
right to be furnished counsel does not depend on a request."
Carnley v. Cochran, 369 U. S. 506, 513 (1962).
Between 1993 and 2004, Petitioner did not knowingly and
intelligently waive his right to the appointment of appellate
He could not have waived this right because he evinced
his desire to appeal by requesting his trial counsel to notice
his appeal .
The Supreme Court has held that:
When a defendant whose indigency and desire to appeal are
manifest does not have the services of his trial counsel on
appeal, it simply cannot be inferred from defendant's
failure specifically to request appointment of appellate
counsel that he has knowingly and intelligently waived his
right to the appointment of appellate counsel.
Swenson v . Bosler, 386 U.S. 258 , 260
Here, the parties
dispute whether Petitioner manifested his desire to appeal, in
light of the long delay between when he noticed his appea l in
1993 and perfected it in 2012 .
Petitioner did not waive his right to counsel between 1993
and 2004 because his rights were not "simply and directly"
explained to him.
545 U.S. at 624 .
manifested his desire to appeal when his trial counsel noticed
Mackenzie v. Marshall, No. 07 Civ . 4559
(SJF) , 2009
WL 3747128 , at *3 (E . D.N . Y. Nov. 5, 2009); U.S. ex. rel. Edwards
v . Follette, 281 F . Supp . 632 , 636 (S . D. N.Y . 1968).
indigency and manifest intent to appeal are established and
therefore "it simply cannot be inferred from defendant's failure
specifically to request appointment of appellate counsel that he
has knowingly and intelligently waived his right."
U.S. at 260 .
However, in 2004 Petitioner was convicted of a new count of
Petitioner was adjudicated as
a violent persistent felony offender because it was his third
conviction for a violent felony.
successfully requested appellate counsel and was assigned the
Center for Appellate Litigation for his 2004 case.
Respondent argues that after Petitioner successfully obtained
counsel in this 2004 matter, he could no longer claim that he
did not understand how to obtain counsel for his 1993 case.
The New York Court of Appeals correctly determined that
Calaff abandoned his appeal by waiting too many years to
prosecute and perfect it, citing its decision in People v West,
People v. Perez, 23 N.Y.3d at 99.
in West, here the "defendant was adequately informed of his
right to appeal, he failed to perfect it in a timely manner and
therefore abandoned any right to an appeal he may have had."
100 N.Y.2d at 28 .
In West, the petitioner incorrectly
filed habeas corpus actions in state court before exhausting his
state court appeals.
Id. at 25.
The petitioner in West
attempted to seek some relief from a court, even if it was the
In this case, Cala ff made no effort to pursue his
appeal until 20 12.
While interpreting the Rights Notice's requirement to draft
a letter was not a reasonable precondition on the right to
appeal, "Documentary requirements and timely filing schedules"
are "reasonable preconditions" on the right to appeal.
v . Smith , 463 F.3d at 149.
In this case, Calaff took no action
to perfect his appeal from the 1993 conviction after he obtained
appellate counsel for his 2004 burglary case until 2012 .
abandoned his claim because he did not take any actions to
prosecute the appeal of his 1993 case between 2004 and 2012.
100 N.Y.2d at 28 .
Petitioner points to two letters he wrote to Klang as
evidence that he sought to pursue his appeal between 2004 and
These letters requested a copy of Petitioner's case file,
any motions filed by his previous attorney, and Klang's
recollections about the ir discussions concerning whether
Petitioner should plead guilty in 1993.
(A-80 - 82 .)
neither letter requested information about the status of
Petitioner's appeal of his 1993 conviction, which had been
noticed , but not perfected.
(A-80 - 82 . )
first attempt to perfect his appeal of his 1993 occurred in
2012, when an attorney who had represented Petitioner in the
appeal of his 2004 conviction , made a motion to be assigned as
Petitioner's counsel for the 1993 conviction.
New York law allows appel late courts to dismiss appeals
that are not properly or timely perfected.
In this case, there
is no dispute that Calaff 's appeal was not timely perfected.
New York 's Criminal Procedure Law provides, "At any time" before
an appeal is decided that the appellate court may "dismiss such
appeal upon the ground of
. failure of timely prosecution or
perfection thereof, or other substantial defect , irregularity or
failure of action by the appellant with respect to prosecution
or perfection of such appeal."
N.Y. Crim. Proc. Law§
The New York appellate courts in this case properly
exercised their "broad discretion" to dismiss the appeal for
failure to prosecute and perfect this claim in a timely fashion.
10 N.Y.3d 227 , 244
For these reasons, the state court decision was correct in
holding that "the delays were extremely long, and the defendants
did not have a good excuse for them."
People v. Perez, 23
N. Y. 3d at 101.
While the delay between 1993 and 2004 was not
Petitioner ' s fault , his failure to prosecute his appea l between
2004 and 2012 was a valid ground for dismissal by the New York
Court of Appeals.
West , 100 N. Y. 2d at 28 .
For the reasons stated above , Petitioner ' s petition for
wri t o f habeas corpus is denied.
It is s o o rdered .
New York, NY
U. S .D.J .
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