12-4228-pr
Roberites v. Colly


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.

      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 18th day of October, two thousand thirteen.

PRESENT: ROBERT D. SACK,
                 BARRINGTON D. PARKER,
                 REENA RAGGI,
                                 Circuit Judges.
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JESSE J. ROBERITES,
                                 Petitioner-Appellant,
                         v.
                                                                            No. 12-4228-pr
SUPERINTENDENT COLLY,
                                 Respondent-Appellee.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                         RANDOLPH Z. VOLKELL, ESQ., Merrick,
                                                 New York.

APPEARING FOR APPELLEE:                          ALYSON J. GILL, (Barbara D. Underwood,
                                                 Solicitor General, Roseann B. MacKechnie,
                                                 Deputy Solicitor General for Criminal Matters,
                                                 on the brief), for Eric T. Schneiderman, Attorney
                                                 General of the State of New York, New York,
                                                 New York.



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       Appeal from an order of the United States District Court for the Western District of

New York (John T. Curtin, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 21, 2012, is AFFIRMED in part

and REVERSED and REMANDED in part.

       New York State prisoner Jesse Roberites, now represented by counsel, appeals from

the sua sponte dismissal without prejudice of his pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2254 challenging his state convictions for arson and insurance fraud and

complaining of ineffective assistance of counsel on appeal. The rules governing § 2254

permit sua sponte dismissal where “it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief.” Rules Governing Section 2254 Cases,

Rule 4; McFarland v. Scott, 512 U.S. 849, 856 (1994). We review such a dismissal de

novo. See Jones v. West, 555 F.3d 90, 95 (2d Cir. 2009); cf. Shakur v. Selsky, 391 F.3d

106, 112 (2d Cir. 2004) (holding de novo review applies to sua sponte dismissal of prisoner

civil rights action pursuant to 28 U.S.C. § 1915). To facilitate that review, a panel of this

court granted Roberites a certificate of appealability on two issues: (1) whether the

on-going state delay in hearing his appeal excused the failure to exhaust and (2) whether

such delay violated due process. See Roberites v. Colly, No. 12-4228-pr, Dkt. Entry 23

(2d Cir. Jan. 22, 2013). We assume the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal, which we reference only as

necessary to explain our decision to affirm in part and reverse and remand in part.

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1.     Excusing Exhaustion Based on Appellate Delay

       The district court’s dismissal was based on Roberites’s failure to exhaust available

state remedies, specifically direct appeal. See 28 U.S.C. §2254(b)(1)(A); Dean v. Smith,

753 F.2d 239, 241 (2d Cir. 1985). We have recognized that a failure to exhaust may be

excused, however, where there has been “substantial delay in the state criminal appeal

process.”   Cody v. Henderson, 936 F.2d 715, 718 (2d Cir. 1991); see 28 U.S.C.

§ 2254(b)(1)(B)(ii) (excusing failure to exhaust where circumstances render state

corrective process ineffective to protect rights of petitioner); 17B Wright & Miller, Fed.

Prac. & Proc. Juris. 3d § 4264.2 (2009) (“[I]f there is undue delay between the prisoner’s

application to the state courts and final disposition of it there, the federal courts consider

that the state corrective process is ineffective to protect the rights of the prisoner and will

pass on a habeas corpus petition.”).

       In assessing whether delay excuses exhaustion, a court properly considers the

criteria articulated in Barker v. Wingo, 407 U.S. 514 (1972), regarding the right to a speedy

trial, including (1) the length of the delay, (2) the reason for the delay and the party

responsible, (3) whether petitioner asserted his right to a decision, and (4) ensuing

prejudice. See Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990). A court may

also consider federal-state comity in considering whether undue delay excuses a failure to

exhaust. See Brooks v. Jones, 875 F.2d 30, 32 (2d Cir. 1989).




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       Here, approximately 32 months passed from Roberites’s timely June 10, 2009 filing

of his appeal and his February 27, 2012 filing of a § 2254 petition. During that time, the

merits of the appeal were not under consideration; to the contrary, the appeal had not yet

been perfected as required by N.Y. Comp. Codes R. & Regs., tit. 22, § 1000.3(b). At the

time the district court dismissed the petition, over three years had passed. We have

observed that “[t]he doctrine of exhaustion of state remedies does not require a petitioner to

wait . . . three or four years before enlisting federal aid to expedite an appeal.” Simmons

v. Reynolds, 898 F.2d at 870. Thus, the length of the delay here tilts in favor of excusing

Roberites’s failure to exhaust.

       The second and third factors also tilt in his favor. In the 32 months before

Roberites filed his § 2254 petition (1) initial-appointed appellate counsel failed to perfect

the state appeal or otherwise take any action on Roberites’s behalf before being relieved,

and (2) a second-appointed attorney ordered to perfect the appeal by January 3, 2012,

failed to do so. On January 8, 2012, Roberites moved for appointment of new counsel,

which the Appellate Division denied. Nothing in the record indicates whether the state

court thereafter took any action to secure counsel’s compliance with the order to perfect.

It shows only that on June 6, 2013, nearly four years after Roberites’s appeal was filed and

two years after her appointment, second appellate counsel moved successfully to be

relieved. On June 11, 2013, the Appellate Division assigned Roberites a third appellate

counsel, and ordered him to perfect the state appeal by August 20, 2013. Counsel

perfected the appeal as directed, a date now has been set for the state’s reply, and the appeal

                                              4
is calendared for the February 2014 Term. These circumstances indicate that, despite the

noted lengthy delay, Roberties’s appeal is finally on track for a merits assessment by the

New York courts.

       Mindful that “[t]he exhaustion requirement . . . is grounded in principles of comity

and reflects a desire to protect the state courts’ role in the enforcement of federal law,”

Castille v. Peoples, 489 U.S. 346, 349 (1989) (internal quotation marks and citation

omitted), and in light of the fact that this appeal is now moving forward, we will not

ourselves address the merits of Roberites’s challenge to his conviction in advance of state

courts. See Brooks v. Jones, 875 F.2d at 31–32. Accordingly, we affirm the district

court’s dismissal of Roberites’s § 2254 petition challenging his judgment of conviction for

failure to exhaust.

2.     Due Process Claim for Undue Appellate Delay

       In addition to seeking § 2254 relief from conviction, Roberites asserts a violation of

his due process right to a speedy appeal. See Elcock v. Henderson, 947 F.2d 1004, 1007

(2d Cir. 1991) (“[O]nce a state has provided defendants in criminal cases with the right to

appeal, due process requires that an appeal be heard promptly.” (internal quotations marks

omitted)); see also Cody v. Henderson, 936 F.2d at 719. We have previously rejected

arguments that such due process claims must first be pursued in state court, deeming writs

of error coram nobis inadequate to afford relief. See, e.g., Brooks v. Jones, 875 F.2 at 31;

Mathis v. Hood, 851 F.2d 612, 614–15 (2d Cir. 1988). Respondent suggests that where,

as here, petitioner attributes much of the delay to ineffective counsel, People v. Syville, 15

                                              5
N.Y.3d 391, 912 N.Y.S.2d 477 (2010), holds that coram nobis can afford effective relief.

Because Roberites’s due process claim is not limited to the ineffectiveness of counsel, but

also faults the state court’s own inaction in advancing his appeal, we need not here decide

whether Syville warrants reconsideration of our precedent not requiring exhaustion of such

due process claims. See Mathis v. Hood, 851 F.2d at 615. Further, we conclude that

Roberites is, at this point, entitled only to conditional relief.

       Once again, the Barker v. Wingo factors inform our assessment of the plausibility of

Roberites’s due process claim. See Elcock v. Henderson, 947 F.2d at 1007. Where, as

here, the first three Barker factors weigh in favor of finding a due process violation, but a

petitioner has failed to demonstrate any substantial prejudice to his pursuit of a now

scheduled appeal, we have held that a conditional writ is the appropriate remedy because

“it limits the time state courts may delay; it grants a prisoner the required relief, his appeal;

and it provides federal courts with an effective means to protect prisoners’ rights to

appeal.” Simmons v. Reynolds, 898 F.2d at 870; see also Brooks v. Jones, 875 F.2d at 32.

Mindful both that Roberites’s appeal is now scheduled to be heard in the February 2014

Term, and that New York’s Appellate Divisions carry heavy dockets, we direct the district

court on remand to issue a conditional writ ordering Roberites’s release unless his appeal is

decided by June 30, 2014.

       We have considered the parties’ remaining arguments on appeal and find them to be

without merit. Accordingly, the order of the district court is AFFIRMED in part and

REVERSED and REMANDED in part.

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       The Clerk of Court shall issue the mandate ten (10) days from the date of this order,

and shall forthwith transmit a copy of this order to the New York State Appellate Division,

Fourth Department.

                                   FOR THE COURT:
                                   CATHERINE O=HAGAN WOLFE, Clerk of Court




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