Calaff v. Capra, Superintendent, Sing Sing Correctional Facility

Filing 30

OPINION re: 24 MOTION for Certificate of Appealability filed by Ivan Calaff. For the reasons stated above, Petitioner's Certificate of Appealability is granted. (Signed by Judge Robert W. Sweet on 1/31/2017) (cla)

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USDC SONY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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DOCUtvtENT
ELEClT01~l

.>:\I.LY FILED

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DATEFl.~L-E-D~'-t-7~~=-:

IVAN CALAFF,
Petitioner,
15 Civ. 7868
- against OPINION
MICHAEL CAPRA, SUPERINTENDENT, SING
SING CORRECTIONAL FACILITY,
Respondent.

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A P P E A R A N C E S:

ATTORNEYS FOR PETITIONER
DAVIS POLK & WARDWELL LLP
450 Lexington Avenue
New York, NY 10017
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
One Hogan Place
New York, NY 10013
By:
David M. Cohn, Esq.

(RWS)

Sweet , D.J .

Petitioner 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) , chal l enging the Court ' s October 18 ,

2016 opinion.

For the reasons set forth below , the Certificate

i s granted .

Prior Proceedings

On October 18 , 2016 th i s Court denied Petitioner ' s writ of
habeas corpus .

While the Court found that the Rights Notice

trial counsel gave Petitioner when he pled gui l ty to his 1 993
conviction was unconstitutional as an unreasonable precondition
on Petit i oner ' s right to appe l late counsel , Petitioner waived
that right by waiting 19 years to perfect his appeal .

On November 28 , 2016 , Petitioner f i l ed the instant motion
for a COA .

The mot i on was taken on submission and marked fully

submitted on December 15 , 20 1 6 .

Petitioner's 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

1

A petitioner whose habeas petition is denied by a federal
district court may not appeal that decision without a COA.
U.S . C.

§§

2253(c) (1).

28

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 22 . 1 .

The 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."
163 (2d Cir. 2 011).

Blackman v . Ercole, 661 F.3d 161,

The petitioner must show that "reasonable
. the petition should have been

jurists could debate whether .

resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further."

Artuz, 309 F . 3d 103, 106 (2d Cir. 2002)

Rhagi v.

(internal citations

omitted).

Here, 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
2

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 .

The District Court Can Properly Consider a COA After a Notice of
Appeal Has Been Filed with the Circuit Court

The 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") .
670 F. Supp. 223, 224

See Cole v. Campbell,

(M .D. Tenn. 1987); Terrell v . Dutt on,

F. Supp. 100, 102 (M . D. Tenn. 1986).

661

However, subsequent

Circuit Court case law indicates that "the notice of appeal did
not strip [the district court judge] of the auth o rity 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).

3

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.

Therefore, 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 Petitioner's constitutional rights
were violated in this case.

4

I.

Conclusion

For the reasons stated above, Petitioner ' s Certificate of
Appealability is granted .

It is so ordered .

New York, NY
Janua~ ( , 2017

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