Camarano v. Griffin

Filing 29

OPINION & ORDER: Petitioner pro se Robert Camarano seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his convictions for second-degree murder and third-degree criminal mischief. Camarano alleges that the delay in perfecting his a ppeal is attributable to the ineffective assistance of his appellate attorneys and amounts to a denial of due process. Camarano's petition for a writ of habeas corpus under 28 U.S.C. § 2254 is denied because he has failed to exhaust his cla ims in state court. Further, Camarano has not shown that any alleged errors by the trial court or his counsel cannot be addressed through the state appellate process. Because Camarano has not made a substantial showing of the denial of a constitution al right, a certificate of appealability will not be issued. See 28 U.S.C. § 2253(c)(2). In addition, this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court is directed to terminate the petition pending at ECF No. 1, and mark this case as closed. The Clerk of Court is further directed to mail a copy of this order to Petitioner and note service on the docket. (Signed by Judge William H. Pauley, III on 9/19/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT CAMARANO,
:
Petitioner,

:
16cv2095

-against-

:
OPINION & ORDER

T. GRIFFIN, SUPERINTENDENT,
GREEN HAVEN CORR. FACILITY,

:

Respondent.
:
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WILLIAM H. PAULEY III, District Judge:
Petitioner pro se Robert Camarano seeks a writ of habeas corpus under 28 U.S.C.
§ 2254, challenging his convictions for second-degree murder and third-degree criminal
mischief. Camarano alleges that the delay in perfecting his appeal is attributable to the
ineffective assistance of his appellate attorneys and amounts to a denial of due process. For the
following reasons, Camarano’s petition is denied.
BACKGROUND
In May 2010, a New York County jury convicted Camarano of second-degree
murder and third-degree criminal mischief in connection with the killing of his live-in girlfriend
Michelle Hyams. (Memorandum of Law Opposing Petition for a Writ of Habeas Corpus, ECF
No. 15 (“Opposing Memorandum”), at 1–2.) Camarano was sentenced to consecutive terms of
25 years to life imprisonment for the murder charge and two to four years imprisonment on the
criminal mischief count. (Answer and Appendix Opposing Petition for a Writ of Habeas Corpus,
ECF No. 14 (“Answer”), ¶ 6.)
In June 2010, Camarano appealed his convictions to the Appellate Division, First
Department. The First Department appointed the Legal Aid Society (“Legal Aid”) to serve as

Camarano’s appellate counsel. (Answer, Exs. A and C.) In September 2012, Camarano asked
the Appellate Division to relieve Legal Aid, claiming that his court-appointed counsel was
neglecting his appeal. (Answer, Ex. O.) Legal Aid explained that the delays were attributable to
its inability to obtain a complete trial record. (Answer, Ex. P.) Camarano’s trial transcript was
incomplete due to a court reporter’s errors during Camarano’s trial. See generally James C.
McKinley, Jr., Stenographer, Fired Over Drinking Problem, Left Headaches for Appellate
Courts, N.Y. TIMES, April 4, 2014, at A20. Nevertheless, the Appellate Division granted
Camarano’s motion and substituted the Center for Appellate Litigation (“CAL”) in place of
Legal Aid. (Answer, Ex. Q.)
Five months later, Camarano moved to relieve CAL as counsel. (Answer, Ex. R.)
This time, the Appellate Division denied Camarano’s motion and CAL continued to work on
Camarano’s appeal. (Answer, Exs. S and W.) In August 2014, the New York Supreme Court
conducted a reconstruction hearing to regenerate the missing minutes from Camarano’s trial.
(Answer, Ex. CC.)
Undeterred, Camarano renewed his application to remove CAL as his counsel. In
September 2015, the Appellate Division relented and displaced CAL with the Office of the
Appellate Defender (“OAD”). (Answer, Ex. FF.) While OAD worked on his appeal, Camarano
filed this petition in March 2016, alleging that the delay and inadequacies of his appellate
counsel denied him due process of law. (Petition for Writ of Habeas Corpus, ECF No. 1
(“Petition”), at 7.)
After he commenced this habeas proceeding, Camarano moved the Appellate
Division to relieve OAD as his counsel. The First Department granted that application and
appointed Steven A. Feldman, Esq. to represent Camarano on appeal. (June Letter from Ross
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Mazer, ECF No. 26.) And most recently, in July 2017, Camarano moved to relieve Feldman in
favor of proceeding pro se. (August Letter from Ross Mazer, ECF No. 28.)
DISCUSSION
Section 2254 provides that a “district court shall entertain an application for a writ
of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). District courts are instructed not to grant habeas
applications unless “the applicant has exhausted the remedies available in the courts of the
State.” § 2254(b)(1)(A). This “exhaustion doctrine” lies in “respect for our dual judicial system
and concern for harmonious relations between the two adjudicatory institutions.” Daye v.
Attorney Gen. of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982); see also Galdamez v. Keane,
294 F.3d 68, 72 (2d Cir. 2005) (explaining the history and rationale of this requirement).
The only exceptions to this exhaustion requirement are if “there is an absence of
available State corrective process” or “circumstances exist that render such process ineffective to
protect the rights of the applicant.” § 2254(b)(1)(B)(i)(ii). A habeas petitioner has not exhausted
his state remedies “if he has the right under the law of the State to raise, by any available
procedure, the question presented.” § 2254(c). However, this Circuit has also recognized
limited circumstances in which a state prisoner may be excused from exhausting his state
remedies when he has been subject to severe delays in the criminal appeal process. Cody v.
Henderson, 936 F.2d 715, 718 (2d Cir. 1991); Mathis v. Hood, 851 F.2d 612, 615 (2d Cir. 1988).
Camarano fails to satisfy the exhaustion requirement of § 2254. The delays
attendant to his appeal do not warrant excusing him from this requirement.

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First, portions of his trial transcript were lost and the court reporter’s notes were
indecipherable. (Answer, ¶ 13.) Ultimately, the trial court held a reconstruction hearing
(Answer, ¶ 17.) Camarano added to the delays by repeatedly seeking to change attorneys. Each
substitution of counsel added delay to the time necessary to review the 1,600 page trial record
with 285 exhibits. And recently, Camarano’s fourth appellate counsel filed an appellate brief on
Camarano’s behalf that Camarano now seeks to withdraw so that he can represent himself.
The First Department has acted promptly on each application that Camarano or
his appellate counsel has filed. It granted Camarano’s multiple requests to substitute counsel,
responded promptly to his other motions, and warned one appellate counsel that Camarano’s
appeal would be placed on the court’s dismissal calendar unless counsel “satisfactorily
explain[ed] the delay.” (Answer, Ex. V.)
Given that Camarano’s state appeal is currently pending, Camarano has failed to
exhaust his claims in state court. And because he cannot show that such process would be
ineffective, this Court may not reach the merits of his habeas petition. “Before a federal court
may address the merits of any constitutional issue on a writ of habeas corpus, the petitioner must
have exhausted all available state remedies as to that issue.” Gonzalez v. Sullivan, 934 F.2d 419,
422 (2d Cir. 1991).
CONCLUSION
Camarano’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 is denied
because he has failed to exhaust his claims in state court. Further, Camarano has not shown that
any alleged errors by the trial court or his counsel cannot be addressed through the state appellate
process. Because Camarano has not made a substantial showing of the denial of a constitutional
right, a certificate of appealability will not be issued. See 28 U.S.C. § 2253(c)(2). In addition,
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this Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not
be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of Court
is directed to terminate the petition pending at ECF No. 1, and mark this case as closed. The
Clerk of Court is further directed to mail a copy of this order to Petitioner and note service on the
docket.

Dated: September 19, 2017
New York, New York
SO ORDERED:

_______________________________
WILLIAM H. PAULEY III
U.S.D.J

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