Report of the NYCLA Appellate Courts Committee on Establishing Procedures for the Resolution of Ineffective-Assistance-of-Appellate-Counsel Claims

 

The Appellate Courts Committee of the New York County Lawyers Association urges the State Legislature or the Judiciary to establish procedures for the litigation of ineffective-assistance-of-appellate-counsel claims.

 

Enacted in 1970, Article 440 of the Criminal Procedure Law established comprehensive procedures for the adjudication of collateral attacks previously recognized under common law as habeas corpus and coram nobis petitions. Litigants now utilize these provisions to obtain review of violations that are beyond the original trial record, most frequently ineffective assistance of trial counsel. Among the statute’s most important accomplishments was its institution of clear procedures for the resolution of factual questions.

 

Unfortunately, while such comprehensive procedures continue to govern claims of ineffective assistance of trial counsel, there are no codified procedures governing ineffective-assistance-of-appellate-counsel claims. Despite an express invitation from the Court of Appeals to enact statutory procedures or court rules governing such claims, and despite the continuing success of C.P.L. Article 440 procedures, the Legislature and Judiciary have failed to build upon that success by creating procedures governing claims of ineffective assistance of appellate counsel.

 

Recognizing the need for reform, the Advisory Committee on Criminal Law and Procedure has recommended that “the writ of coram nobis be codified in a new section . . . of the Criminal Procedure Law.” This report builds on that recommendation, proposing that the Legislature and/or Judiciary develop comprehensive procedures for the litigation of claims of ineffective assistance of appellate counsel. This report also urges three specific reforms: (1) the creation of a fact-finding procedure; (2) a requirement that the appellate court make findings of fact or conclusions of law; and (3) the nullification of a rule requiring a defendant to exercise “due diligence” in investigating and ultimately detecting appellate counsel’s deficiencies. These reforms will enhance the efficiency and fairness of the coram nobis process.

 

1. The Current State of the Law

 

Unlike the federal constitution, the state constitution guarantees the right to an appeal. Thus, the State has an obligation “to make certain that criminal defendants receive the careful advocacy needed to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over.” Further, appellate procedures “must provide the criminal appellant with the minimal safeguards necessary to make an adequate and effective appeal.” Among the most critical of those safeguards is a right to the effective assistance of appellate counsel (including at the notice-of-appeal stage).

 

While this constitutional right is well established, there are no procedures for the litigation of ineffective-assistance-of-appellate-counsel claims. The only recourse available to criminal defendants deprived of their right to effective assistance of appellate counsel is the filing of a petition for a writ of error coram nobis before the intermediate appellate court. Over the past few decades, the Court of Appeals has pointed to the writ as the exclusive vehicle for addressing deprivations of the right to effective assistance at several steps of the appellate process, including:

 

• the complete deprivation of counsel on appeal before the intermediate appellate court;
• counsel’s inexcusable failure to perfect an appeal before the intermediate appellate court; and
• counsel’s unjustifiable failure to timely file a notice of appeal.

 

Given the absence of any statutory framework, the Court of Appeals has struggled to craft coherent procedures for the intermediate appellate court’s resolution of coram nobis petitions premised on claims of ineffective assistance on appeal. For instance, the Court has suggested, in dictum, a common law rule that in order to secure relief due to counsel’s failure to file a notice of appeal, the defendant must personally exercise “due diligence” in investigating counsel’s blunder. In doing so, the Court has suggested a new common law procedural bar without any legislative authorization.

 

Three aspects of current procedures, summarized below, are perhaps the most problematic: (1) there is no mechanism for fact-finding; (2) there is no requirement that the intermediate appellate court make findings of fact or conclusions of law; and a common law due-diligence standard may bar petitions alleging ineffective assistance of counsel due to the failure to file a notice of appeal.

 

1. No fact-finding procedures

 

Often, questions concerning whether defendants have been denied effective assistance of appellate counsel involve significant—and disputed—questions of fact. Yet, absent any statutory or rule-based procedures governing the holding of a fact- finding hearing, intermediate appellate courts have neither engaged in, nor remitted for, fact finding.

 

1. Findings of fact and conclusions of law

 

Unlike C.P.L. § 440.30, which expressly requires post-conviction courts to issue written findings of fact and conclusions of law when ruling on ineffective-assistance- of-trial-counsel claims, there is no such requirement in the appellate context. Thus, the intermediate appellate court can—and almost always does—write nothing more than: “WRIT OF ERROR CORAM NOBIS DENIED.” The routine issuance of summary orders undermines Court of Appeals review. Absent any findings, the High Court can only speculate as to the basis for the decision. And if the unspoken justification for the denial is legally flawed, the Court of Appeals won’t know about it, and thus cannot correct it. Further, the issuance of summary orders impedes the development of the law and risks creating a perception among the public (or at least the aggrieved litigant) that such applications do not receive close attention and consideration.

 

1. A due diligence bar

 

Dictum from Court of Appeals decisions suggests that, as a matter of state common law, a defendant alleging ineffective assistance for failing to file a notice of appeal must exercise due diligence in investigating counsel’s error. This requirement has effectively operated as a statute of limitations on this discrete class of claims.

 

This common law procedure creates an anomaly in ineffective-assistance law. After all, Article 440, which governs the litigation of ineffective assistance of trial counsel, imposes no due diligence requirement. Instead, such motions can be filed “at any time.” Similarly, no case law suggests that a defendant must exercise due diligence in investigating ineffective assistance of appellate counsel.

 

1. People v. Arjune

 

The unfortunate reality of the status quo was on full display in People v. Arjune. That appeal involved a barely-literate, 22-year-old man who immigrated to the United States and was arrested after he was attacked in a Queens restaurant and subsequently hid the knife he used to defend himself. After a trial, the jury acquitted him of attempted murder and assault, but convicted him of criminally possessing a weapon and tampering with evidence. After sentencing, his attorney filed a notice of appeal on his behalf, but never advised him of his appellate rights or took any action once the Appellate Division notified him it was dismissing Mr. Arjune’s appeal for failure to perfect.

 

Following Mr. Arjune’s release, the federal government initiated deportation proceedings against him and Mr. Arjune alleged that counsel was ineffective for failing to ensure that he was represented on appeal. The Appellate Division did not conduct any fact-finding hearing. In turn, the Appellate Division summarily denied the petition without opinion, leaving the Court of Appeals to speculate as to the factual and/or legal predicates for the Appellate Division’s denial.

 

1. The Solution: Look Outward and Inward

 

Fortunately, New York is not the first jurisdiction to grapple with this problem. Through legislation and court decisions, a vast majority of states—45—have established procedures for formal judicial fact-finding to address claims of ineffective assistance of appellate counsel. Of those, 38 require that such claims be brought before trial-level courts. Four others require them to be brought before the appellate courts that decided the original appeal which then make their own findings of fact. Two more have adopted a hybrid approach, whereby petitioners claiming ineffective assistance of counsel on appeal bring their claims first to the appellate court that decided the appeal, which then retains the discretion to remand the claim to a trial- level court for additional fact finding if necessary. Finally, one state—Virginia— requires petitioners to bring their claims directly to its Supreme Court, which has original and exclusive jurisdiction over all habeas claims, although the Virginia Supreme Court may remand petitions to trial-level courts for additional fact finding.

 

New York’s Article 440 also serves as a perfect model for reform. Article 440 already establishes effective procedures for adjudicating claims of ineffective assistance of trial/sentencing counsel. This set of procedures can serve as a model for resolving similar claims in the appellate context. In other words, rectification of this problem requires nothing more than statutory symmetry.

 

In particular, C.P.L. § 440.30 already establishes procedures for fact-finding hearings and requires courts to make findings of fact and conclusions of law. Extending this practice to claims of ineffective assistance on appeal would thus be an easy step toward elimination of the current void, especially in light of our highest Court’s observation that “[t]he Appellate Division . . . has the filexibility, should the need arise, to refer factual disputes for hearings to the [trial] court or perhaps to judicial hearing officers.” Doing so would enable properly-equipped courts to engage in fact finding and solicit relevant information from various sources, including former appellate counsel.

 

Finally, the new rules should reject dictum from Court of Appeals decisions stating that a defendant must exercise “due diligence” in investigating counsel’s failure to file a timely notice of appeal. Under this rule, the defendant must personally investigate and detect counsel’s blunder. To successfully do so, the defendant must possess a high level of legal sophistication—that is, the defendant must: (1) know the relevant time deadlines imposed by the C.P.L. for filing a notice of appeal; (2) know that ineffective assistance of counsel can excuse counsel’s failure; and (3) investigate and monitor counsel’s compliance with the professional obligation to comply with filing deadlines.

 

As this Committee recently argued in its recent amicus brief to the New York Court of Appeals in People v. Grimes, a due diligence rule is illogical and unfair for several reasons:

 

• the rule unfairly and illogically forces lay defendants to suffer the consequences of a trained professional’s incompetence;
• the rule unfairly requires clients to make sure their lawyers do their jobs;
• a defendant alleging ineffective assistance of trial/sentencing counsel need not show due diligence, so there should not be an artificial due- diligence carve out in the notice-of-appeal context;
• a due diligence rule would ignore a juggernaut of precedent confirming that when a defendant “defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that [appellate review] entails”; and
• a due diligence rule is unworkable and subjective.

 

The Legislature or Judiciary (under its rule-making power) should reject a due diligence rule.

 

CONCLUSION

 

In holding more than thirty years ago that C.P.L. § 440.10 did not provide a vehicle for resolving a claim of ineffective assistance of counsel on appeal, the Court of Appeals “invite[d] the Legislature’s prompt attention to this problem.” We urge the Legislature and the Judiciary to accept that invitation by codifying procedures for the litigation of this important class of constitutional claims. That reform is long overdue.

 

Respectfully Submitted,

 

Appellate Courts Committee

Matthew Bova and Scott Danner, Co-Chairs

January 24, 2019

Trial Court Fact Finding (38)	Intermediate Appellate Court Fact Finding (5)	Intermediate Appellate Court Has Discretion to Remand for Fact Finding (2)	Court of Last Resort Has Discretion to Remand for Fact Finding (1)
ALABAMA Alabama R. of Crim. P. 32.1; Banville v. State, No. CR-15-1384, 2017 Ala. Crim. App. LEXIS 18, at *9 (Crim. App. Mar. 17, 2017)	CALIFORNIA Cal Rules of Court 8.386(f); In re Serrano, 10 Cal. 4th 447, 455 (1995)	DISTRICT OF COLUMBIA Watson v. United States, 536 A.2d 1056, 1060, 1061 (D.C. 1987)	VIRGINIA Dodson v. Dir. of Dep’t of Corr., 233 Va. 303, 310 (1987)
ARIZONA Ariz. R. Cr. P. 32.1(f); State v. Hall, 118 Ariz. 460, 461-62 (1978)	FLORIDA Smith v. State, 400 So. 2d 956, 960 (Fla. 1981)	MISSOURI Mallett v. State, 769S.W.2d 77, 83n.5 (Mo. 1989)
CONNECTICUT Conn. Gen. Stat. § 52-470(b); Iovieno v. Comm’r of Corr., 242 Conn. 689, 692-93 (1997)	OHIO Ohio App. Rule 26(B); State v. Davis, 119 Ohio St. 3d 422, 426 (2008)
GEORGIA Brown v. Baskin, 286 Ga. 681, 681 (2010)	WASHINGTON In re Pers. Restraint of Maxfield, 133 Wash. 2d 332, 336 (1997)
GUAM People v. Angoco, 2004 Guam 11, ¶ 4	WISCONSIN State v. Knight, 168 Wis. 2d 509, 520 (1992)
HAWAII Haw. R. Penal P. Rule 40(f);
IDAHO Matthews v. State, 122 Idaho 801, 805-06 (1992)
ILLINOIS 725 Ill. Comp. Stat. Ann. 5/122-6; People v. Golden, 229 Ill. 2d 277, 284 (2008)
INDIANA Mato v. State, 478 N.E.2d 57, 62 (Ind. 1985)
IOWA Iowa R. Civ. P. 1.904(2); Lamphere v. State, 348 N.W.2d 212, 215 (Iowa 1984)
KANSAS Kan. Stat. Ann. § 60-1507; Holmes v. State, 292 Kan. 271, 274 (2011)
KENTUCKY Ky. R. Cr Rule 11.42(7); Sanders v. Commonwealth, 339 S.W.3d 427, 434 (Ky. 2011)
LOUISIANA La. C. Cr. P. art. 930(A); State v. Francis, 220 So. 3d 703, 704 (La. 2017)
MAINE Me. Rev. Stat. tit. 15, § 2123(1); Salley v. State, 169 A.3d 392, 394 (Me. 2017)
MARYLAND Md. Code Crim. Pro. § 7-102(a)(1); Gross v. State, 371 Md. 334, 343 (2002)
MASSACHUSETTS Mass. R. Crim. P. 30(a); Commonwealth v. Richard, 398 Mass. 392, 392-93 (1986)

MICHIGAN People v. Rusiecki, 461 Mich. 947, 943-44 (2000)
MINNESOTA Minn. Stat. § 590.04(3); Bobo v. State, 820 N.W.2d 511, 516 (Minn. 2012)
MISSISSIPPPI Miss. Code § 99-39-5(1); Ford v. State, 708 So. 2d 73, 74 n.1 (Miss. 1998)
MONTANA MCA § 46-21-101(1); Dawson v. State, 301 Mont. 135, 139, 172-74 (2000)
NEBRASKA State v. Smith, 294 Neb. 311, 318 (2016)
NEVADA Lara v. State, 120 Nev. 177, 183-84 (2004)
NEW HAMPSHIRE State v. Brown, 166 N.H. 520, 522 (2014)
NEW JERSEY N.J. Ct. R. 3:22-2(a); State v. Echols, 199 N.J. 344, 349 (2009)
NORTH CAROLINA N.C. Gen. Stat. § 15A-1413; State v. Todd, 369 N.C. 707, 708 (2017)
NORTH DAKOTA N.D. Cent. Code § 29-32.1-01; Gaede v. State, 801 N.W.2d 707, 708-09 (N.D. 2011)
OKLAHOMA Okla. Stat. tit. 22, § 1080; Logan v. State, 293 P.3d 969, 979 (Okla. Crim. App. 2013)
OREGON Welch v. Gladden, 253 Or. 228, 230-31 (1969)
PENNSYLVANIA Commonwealth v. Sullivan, 472 Pa. 129, 141-44 (1977)
RHODE ISAND 10 R.I. Gen. Laws § 9.1-1; Young v. State, 877 A.2d 625, 628 (R.I. 2005)
SOUTH CAROLINA S.C. Code Ann. § 17-27-20; Ezell v. State, 345 S.C. 312, 313 (2001)
SOUTH DAKOTA Miller v. Young, 2018 S.D. 33, ¶ 7 (2018)
TENNESSEE Tenn. Code Ann. § 40-30-103; Campbell v. State, 904 S.W.2d 594, 595-96 (Tenn. 1995)
TEXAS Tex. Code Crim. Proc. Art. 11.07; Ex parte Santana, 227 S.W.3d 700, 703-04 (Tex. Crim. App. 2007)
UTAH Dunn v. Cook, 791 P.2d 873, 878 (Utah 1990)
VERMONT Vt. Stat. Ann. tit. 13, § 7131; In re Hall, 195 Vt. 661 (2013)
WEST VIRGINIA State v. VanHoose, 227 W. Va. 37, 40 (2010)
WYOMING Wyo. Stat. Ann. § 7-14-101(b); Harlow v. State, 105 P.3d 1049, 1058-59 (Wyo. 2005)

 

Court of Appeals of the State of New York

 

The People of the State of New York,

 

Respondent,

 

v.

 

Jakim Grimes,

 

Appellant.

 

APL: 2017-00167

Brief of Amicus Curiae

New York County Lawyers Association

Committee on Appellate Courts

 

MATTHEW BOVA

WILLIAM D. BUCKLEY

SCOTT M. DANNER

DANA E. HEITZ

 

Attorneys for Amicus Curiae

New York County Lawyers Association

Committee on Appellate Courts

14 Vesey Street

New York, NY 10007

Telephone: (212) 267 6646

Facsimile: (212) 406 9252

 

Dana E. Heitz

Of Counsel

August 31, 2018

TABLE OF CONTENTS
TABLE OF AUTHORITIES	ii
STATEMENT OF INTEREST OF AMICUS CURIAE	1
SUMMARY OF ARGUMENT	2
STATEMENT OF THE CASE	5
ARGUMENT: This Court should reject a common-law rule that would require defendants to “diligently” investigate counsel’s compliance with his/her professional obligations in order to obtain relief for ineffective assistance of counsel	7
A. This Court has never held that due diligence can bar a meritorious ineffective assistance of counsel claim	9
B. A due diligence rule—which imposes an obligation on lay defendants to investigate and monitor counsel’s compliance with professional mandates—unfairly and illogically forces defendants to suffer the consequences of ineffective assistance	11
C. A common-law requirement that defendants must exercise due diligence would clash with the Legislature’s determination—in numerous other contexts—that no such requirement exists	19
D. A due diligence rule is unworkable	21
E. Rejecting a due diligence rule will not meaningfully undermine state interests	21
CONCLUSION	26
WORD-COUNT CERTIFICATION	27

 

TABLE OF AUTHORITIES
NEW YORK CONSTITUTION
Article I § 6	3, 12
NEW YORK STATUTES AND REGULATIONS
New York Codes, Rules and Regulations
22 N.Y.C.R.R. § 606.5(b)(2)	4
22 N.Y.C.R.R. § 671.3(a)	4
22 N.Y.C.R.R. § 821.2(a)	4
22 N.Y.C.R.R. § 1015.7	4, 18
Criminal Procedure Law
C.P.L. § 255.20(1)	15
C.P.L. § 440.10(1)	2, 20
C.P.L. § 440.20(1)	2, 20
C.P.L. § 460.10(1)	7, 18
C.P.L. § 460.10(5)(a)	2, 5, 11, 18
C.P.L. § 460.30	2, 5, 10, 11
New York Rules of Professional Conduct
New York Rules of Professional Conduct Rule 1.3	4

 

CASES
United States Supreme Court
Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288 (2001)	23
Coleman v. Thompson, 501 U.S. 722 (1991)	8, 17, 24
Crawford v. Washington, 541 U.S. 36 (2004)	3
Evitts v. Lucey, 469 U.S. 387 (1985)	8, 17
Gideon v. Wainwright, 372 U.S. 335 (1963)	11
Halbert v. Michigan, 545 U.S. 605 (2005)	11
Martinez v. Ryan, 566 U.S. 1 (2012)	8, 17, 25
Maryland v. King, 569 U.S. 435 (2013)	25
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009)	25
Murray v. Carrier, 477 U.S. 478 (1986)	8, 17
Ohio v. Roberts, 448 U.S. 56 (1980)	3
Roe v. Flores-Ortega, 528 U.S. 470 (2000)	17, 18, 21
Strickland v. Washington, 466 U.S. 668 (1984)	12, 14
New York Court of Appeals.
Matter of Cooperman, 83 N.Y.2d 465 (1994)	12
Greene v. Greene, 56 N.Y.2d 86 (1982)	14
Glamm v. Allen, 57 N.Y.2d 87 (1982)	14
People v. Arjune, 30 N.Y.3d 347 (2017)	7, 9, 10
People v. Andrews, 23 N.Y.3d 605 (2014)	7, 9, 10
People v. Bachert, 69 N.Y.2d 593 (1987)	16
People v. D’Alessandro, 13 N.Y.3d 216 (2009)	16
People v. Montgomery, 24 N.Y.2d 130 (1969)	8, 17

People v. Rosario, 26 N.Y.3d 597 (2015)	7, 9, 10
People v. Syville, 15 N.Y.3d 391 (2010)	passim
People v. Tiger, N.Y.3d, 2018 N.Y. Slip Op. 04377 (June 14, 2018)	22
Reed v. McCord, 160 N.Y. 330, 335 (1899)	3
Saratoga County Chamber of Com., Inc. v. Pataki, 100 N.Y.2d 801 (2003)	11
Sherman v. Robinson, 80 N.Y.2d 483 (1992)	19
Shumsky v. Eisenstein, 96 N.Y.2d 164 (2001)	14
Tzolis v. Wolff, 10 N.Y.3d 100 (2008)	19
Other jurisdictions
Dillon v. Legg, 68 Cal. 2d 728 (1968)	22
TREATISES, PRACTICE GUIDES, AND COMMENTARY
ABA, Criminal Justice Standards for the Defense Function § 4-9.1(c) (2015)	4, 18
Bacon, Of Counsel, in The Essays of Francis Bacon (1846)	13
New York State Bar Assn., Revised Standards for Providing Mandated Representation	4, 18
New York State Office of Indigent Legal Services Appellate Standards and Best Practices	4
Office of the Clerk of the New York Court of Appeals, The New York State Court of Appeals Criminal Leave Application Practice Outline, p. 1 (2018)	3, 18
W. Page Keeton et al., Prosser and Keeton on the Law of Torts 56 (5th ed. 1984)	22
Toby J. Stern, Comment, Federal Judges and Fearing the Floodgates of Litigation, 6 U. Pa. J. Const. L. 377 (2003)	22

STATEMENT OF INTEREST OF AMICUS CURIAE

 

The New York County Lawyers Association (“NYCLA”) is a not-for-profit organization founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy. NYCLA’s Appellate Courts Committee is committed to promoting access to appellate review, and to furthering the efficiency and effectiveness of New York’s appellate courts.1

In this appeal, the government argues that, even if Appellant’s counsel was ineffective for violating a leave-application deadline, this Court should nevertheless bar relief because he did not act diligently in discovering his lawyer’s error. Because this proposed due diligence rule would curtail access to the appellate courts and undermine the fairness of the appellate process, the NYCLA Appellate Courts Committee has a direct interest in this case. Specifically, we ask that the Court reject a due diligence requirement.

SUMMARY OF ARGUMENT

This Court should reject a common-law rule barring ineffective assistance claims on the grounds that the defendant did not exercise “due diligence” in investigating and analyzing counsel’s blunders— here, the failure to file a timely leave application. See C.P.L. § 460.10(5)(a) (counsel must file a leave application within 30 days of an Appellate Division order in order to seek permission to appeal); C.P.L. § 460.30(1) (establishing a one-year “grace period” for filing a late leave application).

A due diligence rule illogically requires the accused to suffer the consequences of counsel’s ineptitude. And it would unfairly punish vulnerable defendants, leaving them without a remedy for a constitutional injury. Likely for that very reason, the Legislature has never required that defendants asserting ineffective assistance of counsel must exercise “due diligence” in investigating their own lawyers’ compliance with professional obligations. See C.P.L. §§ 440.10(1), 440.20(1).

Although Mr. Grimes exercised due diligence here, see Appellant’s Brief 15-19 (Mr. Grimes, who was incarcerated, wrote to counsel about the status of the leave application just over a year after counsel promised to file a leave application), a narrow holding that Mr. Grimes satisfied an illogical “due diligence” rule will perpetuate that flawed rule. Thus, it is essential that this Court, in setting the law of New York and protecting constitutional rights, categorically reject that rule once and for all. Reed v. McCord, 160 N.Y. 330, 335 (1899) (this Court was created to “authoritatively declare and settle the law uniformly throughout the state”); Crawford v. Washington, 541 U.S. 36 (2004) (“readily conced[ing]” that the Court could resolve the defendant’s Sixth Amendment claim in defendant’s favor by applying the flawed rule of Ohio v. Roberts, 448 U.S. 56 (1980), but nevertheless categorically overruling Roberts because anything less would “perpetuate” a flawed regime).

As for the merits question presented here, we agree with Mr. Grimes that counsel was ineffective for failing to comply with the deadline for filing a leave application. N.Y. Const. Art. I § 6; Office of the Clerk of the New York Court of Appeals, The New York State Court of Appeals Criminal Leave Application Practice Outline, p. 1 (2018) (“The rules of all four Departments of the Appellate Division require [counsel] to advise defendants of their right to appeal, and to timely file an application for leave to appeal to the Court of Appeals . . . if the defendant requests that such application be made. Thus, even [if] counsel [has] no intention of pursuing an appeal to this Court[,] [counsel] must be familiar with the procedure for timely filing a Criminal Leave Application, as it is part of that counsel’s representation responsibilities.”).2 Amicus will not address that point further.

STATEMENT OF THE CASE

On March 2, 2012, Mr. Grimes was convicted of felonies and sentenced to prison time. Appellant’s Brief 3. The chronology of Mr. Grimes’s appeal is as follows:

• November 13, 2015: The Appellate Division affirmed Mr. Grimes’s convictions.
• November 19, 2015: Appellate counsel receives decision with Notice of Entry (served on November 17, 2015).
• November 20, 2015: Appellate counsel wrote a letter to Mr. Grimes informing him that his convictions had been affirmed and told Mr. Grimes that counsel would apply for leave to appeal to this Court.
• December 19, 2015: The 30-day deadline for filing a leave application expired. C.P.L. § 460.10(5)(a).
• November 23, 2016: Mr. Grimes was released from prison.
• December 19, 2016: C.P.L. § 460.30’s one-year-and-thirty-day deadline for filing a late leave application elapsed.
• January 9, 2017: Mr. Grimes wrote appellate counsel asking about his appeal.
• January 20, 2017: After appellate counsel informed Mr. Grimes that he had failed to file a leave application due to law-office failure, Mr. Grimes moved for permission to file outside of C.P.L. § 460.30’s deadline, claiming counsel’s failure to comply with the deadline was ineffective assistance of counsel.

 

Appellant’s Brief 3-5.

The government now contends that even if counsel was ineffective, this Court should reject relief because Mr. Grimes did not exercise due diligence by personally investigating and detecting counsel’s blunder before January 2017. Respondent’s Brief 21-23.

ARGUMENT

This Court should reject a common-law rule that would require defendants to “diligently” investigate counsel’s compliance with his/her professional obligations in order to obtain relief for ineffective assistance of counsel.

 

The prosecution proposes a common-law rule barring ineffective assistance of counsel relief because the defendant did not “diligently” investigate counsel’s ineptitude. Respondent’s Brief 21-23. While previously suggesting such a common-law rule in dicta, this Court has never actually held that “due diligence” is required. People v. Arjune, 30 N.Y.3d 347, 361 (2017); People v. Andrews, 23 N.Y.3d 605, 615-16 (2014); People v. Rosario, 26 N.Y.3d 597, 604 (2015).

This Court should now reject that rule. A due diligence bar is illogical, violates the core principles underlying the right to counsel, clashes with the Legislature’s rejection of such a requirement in numerous other circumstances, and will produce arbitrary results in our appellate courts.

* * *

In People v. Syville, 15 N.Y.3d 391, 397-98 (2010), this Court held that when counsel’s failure to comply with C.P.L. § 460.10(1)’s notice-of-appeal deadlines constitutes ineffective assistance, the Constitution requires that the courts excuse the procedural default. Syville’s holding hardly broke new ground; it built on a wide body of state and federal precedent confirming that when the failure to comply with procedural rules constitutes ineffective assistance, the State cannot “mak[e] [a] defendant suffer for his attorney’s failing.” People v. Montgomery, 24 N.Y.2d 130, 132 (1969); Syville, 15 N.Y.3d at 397 (citing Evitts v. Lucey, 469 U.S. 387, 391-97 (1985) (a state cannot enforce an appellate procedural rule against a defendant when the failure to comply with that rule constitutes ineffective assistance of counsel)); Martinez v. Ryan, 566 U.S. 1, 12 (2012) (because the right to effective assistance of counsel is a “bedrock principle in our justice system,” counsel’s unreasonable failure to raise a claim in a post-conviction proceeding will not bar a defendant from raising that claim in habeas court); Murray v. Carrier, 477 U.S. 478, 488 (1986) (“[I]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State,” not the defendant); People v. Montgomery, 24 N.Y.2d 130, 132 (1969) (there is “no justification for making [a] defendant suffer for his attorney’s failing”). As held in Coleman v. Thompson, 501 U.S. 722, 754 (1991), “Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that [appellate] review entails.”

 

Nevertheless, dicta from this Court’s recent cases suggests that the State need not “bear the cost of” counsel’s ineffective assistance if the defendant did not “diligently” investigate that constitutional claim. Arjune, 39 N.Y.3d at 361; Andrews, 23 N.Y.3d at 615-16; Rosario, 26 N.Y.3d at 604.

This Court should now reject that dicta and hold that there is no “due diligence” requirement governing the litigation of ineffective assistance claims stemming from the failure to comply with Article 460’s filing deadlines.

1. This Court has never held that due diligence can bar a meritorious ineffective assistance of counsel claim.

In Andrews, Arjune, and Rosario, this Court held that counsel’s failure to file a notice of appeal (Andrews and Rosario) and assist with an application for assignment of appellate counsel (Arjune) did not constitute ineffective assistance. Andrews, 23 N.Y.3d at 615 (counsel specifically confirmed that he spoke to defendant about appealing and defendant instructed him not to file notice of appeal); Arjune, 30 N.Y.3d at 350 (“Because defendant has not met his burden of proving that counsel was ineffective, we decline to expand Syville under the circumstances presented here.”); Rosario, 26 N.Y.3d at 603-04 (“Simply put, defendants here failed to show that their attorneys were unconstitutionally ineffective and therefore they are not entitled to the relief they seek.”)

Having made those constitutional determinations, Arjune, Rosario, and Andrews added, in dicta, that, “[i]n order to obtain exceptional relief beyond the time permitted under C.P.L. § 460.30, a defendant must show that he exercised due diligence.” Rosario, 26 N.Y.3d at 604; Arjune, 30 N.Y.3d at 358-59; Andrews, 23 N.Y.3d at 616 (“Nor did Andrews attempt to explain why he waited more than two years to seek coram nobis relief after he obtained an attorney to represent him on collateral review.”); C.P.L. § 460.30(1) (permitting a defendant to file a late notice of appeal “not more than one year” after the 30-day notice-of-appeal deadline expires). Because this Court, in Arjune, Rosario, and Andrews, found that counsel was effective, commentary regarding due diligence was unnecessary to the resolution of those appeals. That commentary was dicta. E.g., Saratoga County Chamber of Com., Inc. v. Pataki, 100 N.Y.2d 801, 824 (2003). And that dicta should now be disavowed.

1. A due diligence rule—which requires lay defendants to investigate and monitor counsel’s compliance with professional mandates—unfairly and illogically forces defendants to suffer the consequences of ineffective assistance.

A due diligence rule unfairly requires lay defendants to understand the law and its procedural nuances. The rule therefore collides with the right to counsel itself, which is rooted in the basic recognition that even “the intelligent and educated layman has small and sometimes no skill in the science of law.” Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963); Halbert v. Michigan, 545 U.S. 605, 621 (2005) (“Navigating the appellate process without a lawyer’s assistance is a perilous endeavor for a layperson, and well beyond the competence of individuals, like [petitioner], who have little education, learning disabilities, and mental impairments.”).

For instance, to employ “due diligence” in investigating counsel’s compliance with C.P.L. § 460.10(5)(a)’s leave-application deadlines, the lay defendant must:

• Know the time limits imposed by C.P.L. § 460.10(5)(a) and § 460.30(1);
• Know that, even though the governing statutes do not say so, Syville excuses the procedural default if it stems from ineffective assistance of counsel; and
• Investigate and monitor his/her attorney’s compliance with the professional obligation to comply with filing deadlines.

 

Further, when counsel has, as in Mr. Grimes’ case, promised to file a leave application, defendants must know the amount of time it “typically” takes an application to be decided in order to begin the investigation.3 If an appellate judge determines that the defendant “waited too long” before investigating counsel’s performance, the defendant loses access to the appellate forum.

A due diligence rule also illogically requires clients to make sure their lawyers do their jobs. Strickland v. Washington, 466 U.S. 668, 688, 689 (1984) (there is a presumption that counsel will comply with their “basic duties”). Under Article I § 6’s right to counsel—and a basic understanding of an attorney’s role—the client has no obligation to double-check the work of the legal professional charged with protecting the client’s interests. E.g., Matter of Cooperman, 83 N.Y.2d 465, 471-72 (1994) (“Sir Francis Bacon observed, ‘[t]he greatest trust between [people] is the trust of giving counsel.’ This unique fiduciary reliance, stemming from people hiring attorneys to exercise professional judgment on a client’s behalf—‘giving counsel’—is imbued with ultimate trust and confidence. The attorney’s obligations, therefore, transcend those prevailing in the commercial market place. The duty to deal fairly, honestly and with undivided loyalty superimposes onto the attorney-client relationship a set of special and unique duties, including . . . operating competently . . . .”) (quoting Bacon, Of Counsel, in The Essays of Francis Bacon, at 181 (1846)).

A defendant’s ability to personally investigate counsel’s compliance with Article 460 deadlines would also be complicated by the fact that ineffective counsel would still represent the defendant before, during, and after the blunder occurred. A defendant’s investigatory prodding could damage the attorney-client relationship. In the law governing legal malpractice, this concern is significant enough to toll the statute of limitations until the lawyer’s representation of the injured client ends:

The continuous representation doctrine, like the continuous treatment rule, its counterpart with respect to medical malpractice claims, “recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered.” The doctrine also appreciates the client’s dilemma if required to sue the attorney while the latter’s representation on the matter at issue is ongoing: “Neither is a person expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person. Since it is impossible to envision a situation where commencing a malpractice suit would not affect the professional relationship, the rule of continuous representation tolls the running of the Statute of Limitations on the malpractice claim until the ongoing representation is completed.”

 

Shumsky v. Eisenstein, 96 N.Y.2d 164, 167-68 (2001) (emphasis added) (quoting Greene v. Greene, 56 N.Y.2d 86, 94 (1982) and Glamm v. Allen, 57 N.Y.2d 87, 94 (1982)).

 

Defendants who trust “presumptively effective” counsel, Strickland, 466 U.S. at 688, 689, may very well fail to exercise due diligence precisely because they trust their lawyers. Thus, a due diligence bar undercuts the natural intuition that “a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered.” Greene, 56 N.Y.2d at 94. This is especially true of a person who is in prison, and whose only channel of information about his appeal is his lawyer.

Here, Mr. Grimes’s leave application was not timely filed precisely because he trusted counsel and lacked information about criminal procedure. He should not be punished for trusting his lawyer or for his unfamiliarity with procedural rules. Nor should first-time offenders, young people, uneducated people, non-English speakers, and mentally ill or handicapped people—the defendants who are least likely to question their attorneys’ professional judgment. Indeed, the burden of discovering a lawyer’s previously undiscoverable ineffectiveness would fall most heavily on the people least able to navigate appellate procedure or “diligently” inquire into their lawyers’ conduct.

As a due diligence rule is illogical, it’s not surprising that it simply does not exist in any other context. Suppose, for instance, a defendant informs counsel (days after his arrest) that the police performed an unconstitutional search. Counsel, however, does not move to suppress within 45 days of arraignment. C.P.L. § 255.20(1) (suppression motions must be made within 45 days of arraignment). The case remains in a pretrial posture for years and the defendant does not “diligently” investigate counsel’s error before trial. No one would seriously argue (and to our knowledge no one ever has) that this defendant has “waived” the ineffective assistance claim, thus precluding him from raising the claim on direct appeal.

Similarly, coram nobis petitions alleging ineffective assistance of appellate counsel are not encumbered by a due diligence rule. See generally People v. Bachert, 69 N.Y.2d 593, 600 (1987) (explaining that the courts and legislature can adopt procedural rules governing the litigation of ineffective assistance of appellate counsel claims; to date, no such procedural rules have been promulgated); People v. D’Alessandro, 13 N.Y.3d 216, 221 (2009) (“[A]lthough we acknowledge that a significant period of time has passed since defendant’s conviction was affirmed on appeal, we should not allow the lengthy passage of time, in itself, to bar review of a defendant’s” ineffective assistance of appellate counsel claim). There is no requirement that the defendant scrutinize appellate counsel’s brief with diligence lest he lose an ineffective assistance claim forever. Yet that is precisely the result of the due diligence bar proposed here.

At bottom, though, a due diligence bar ignores a precedential juggernaut of state and federal law confirming that when a defendant “defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that [appellate] review entails.” Coleman, 501 U.S. at 754 (emphasis added); Montgomery, 24 N.Y.2d at 132; Syville, 15 N.Y.3d at 397; see generally Evitts, 469 U.S. at 391- 97; Martinez, 566 U.S. at 12; Murray, 477 U.S. at 488. A due diligence procedural bar turns that longstanding rule on its head, placing the “responsibility” for the lawyer’s failure, and its “cost,” right back on the defendant.

Syville inadvertently laid the groundwork for this inversion. Syville held that counsel was ineffective for failing to file a notice of appeal after the defendant had made a “timely request to file [that] notice.” 15 N.Y.3d at 397-400; id. at 397 (“When defense counsel disregards a client’s timely request to file a notice of appeal, the attorney ‘acts in a manner that is professionally unreasonable.’ In such a situation, a defendant justifiably relies on the lawyer to carry out the purely ministerial task of taking the first step to preserve the right to appellate review.”) (quoting Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000)).

While Syville’s conclusion is correct, its expression of that holding, which suggested that a defendant has an obligation to ask counsel to comply with professional obligations (such as the obligation to file a notice of appeal), mistakenly suggested that the onus of protecting appellate rights is on the client. On the contrary, blowing a deadline because a client did not “request” compliance with the deadline is an egregious dereliction of duty. E.g., Office of the Clerk of the Court, above, at 1; 22 N.Y.C.R.R. § 1015.7(a)-(b) (imposing a duty on counsel to file the notice of appeal and leave application); New York State Bar Assn., Revised Standards for Providing Mandated Representation, I- 7(j) (eff. 2015) (after a conviction, counsel must file a notice of appeal unless the client make an informed waiver of the right); ABA, Criminal Justice Standards for the Defense Function § 4-9.1(c) (“Defense counsel should take whatever steps are necessary to protect the client’s rights of appeal, including filing a timely notice of appeal in the trial court, even if counsel does not expect to continue as counsel on appeal.”). That is particularly true in the Article 460 context, which merely requires the “ministerial” filing of a notice of appeal (C.P.L. § 460.10[1]; Syville, 15 N.Y.3d at 399), and later a short leave application. C.P.L. § 460.10(5)(a).

Syville’s suggestion that a defendant must protect his own rights also ignored Roe, which imposes an office obligation on counsel to file a notice of appeal unless, after informed consultation, the defendant instructs counsel not to do so. 528 U.S. at 475-481. Under that holding, counsel cannot sit back and wait for client to “request” that counsel act.

A due diligence rule carries forward and accents Syville’s misreading of the authoritative understanding that navigating the appellate process is, at bedrock, counsel’s obligation. And it does so by foisting a punishing burden onto vulnerable people.

 

1. A common-law requirement that defendants must exercise due diligence would clash with the Legislature’s determination—in numerous other contexts—that no such requirement exists.

 

No statute imposes a due diligence rule. Instead, the only possible source for such a rule would be judge-made common law.

A common-law requirement that defendants exercise due diligence in investigating counsel’s ineffectiveness would violate the legislative policies expressed in Article 440. See generally Tzolis v. Wolff, 10 N.Y.3d 100, 117 (2008) (“[T]he modern Legislature reasonably expects the judiciary to respect its policy choices.”) (citing Sherman v. Robinson, 80 N.Y.2d 483, 489 (1992) (“Given the Legislature’s choice not to provide liability for [particular conduct], we decline to expand the common law to impose such liability.”)).

C.P.L. § 440.10(1)(h), the most common vehicle for the litigation of ineffective assistance claims, imposes no due diligence requirement. Instead, a defendant can assert such a claim “[a]t any time after the entry of a judgment . . . .” C.P.L. § 440.10(1) (preamble); accord C.P.L. § 440.20(1) (“At any time after the entry of a judgment, the court in which the judgment was entered may, upon motion of the defendant, set aside the sentence upon the ground that it was unauthorized, illegally imposed or otherwise invalid as a matter of law.”). A common-law due diligence bar in the Article 460 context would, therefore, disturb the Legislature’s policy judgment that ineffective assistance claims are not subject to a due diligence rule.

Similarly, C.P.L. § 440.10(1)(g), which requires that a newly- discovered-evidence claim be “made with due diligence after the discovery of such alleged new evidence” (emphasis added), does not require that the defendant exercise due diligence in investigating whether new evidence exists. Nevertheless, Respondent asks this Court to craft a common-law rule that would impose that precise mandate for the investigation of constitutional claims.

Respondent’s proposal would also create an arbitrary regime: Defendants alleging that counsel was ineffective for failing to comply with Article 460’s deadlines must exercise due diligence, random regime makes little sense. If anything, the rule should be the other way around, as the failure to file a notice of appeal/leave application results in the “even more serious denial of the entire judicial proceeding itself.” Roe, 528 U.S. at 483.

1. A due diligence rule is unworkable.

A flimsy due diligence rule is unworkable. When should a “reasonably diligent defendant” begin second-guessing the attorney’s competence? Months after the Appellate Division’s affirmance? A year later? Two years later? Does due diligence consider the personal characteristics of a defendant? If a defendant is educated and has resources, is that defendant’s obligation greater than an uneducated poor defendant’s obligation?

The Appellate Division departments, faced with deciding what constitutes due diligence on a case-by-case basis, would inevitably produce inconsistent rulings.

 

1. Rejecting a due diligence rule will not meaningfully undermine state interests.

As counsel has an ethical, professional, and reputational interest in complying with Article 460’s deadlines—and as doing so is rather simple—ineffective assistance claims in this context will be rare. Therefore, there will not be a deluge of coram nobis litigation in the absence of a due diligence bar.

In any event, this Court should not shut the courthouse door because the State has violated the constitutional rights of “too many” defendants. See, e.g., People v. Tiger, N.Y.3d, 2018 N.Y. Slip Op. 04377, *13 (June 14, 2018) (Wilson, J., dissenting) (“The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But ‘conservation of judicial resources’ does not appear alongside ‘life, liberty and the pursuit of happiness.’”); Toby J. Stern, Comment, Federal Judges and Fearing the Floodgates of Litigation, 6 U. Pa. J. Const. L. 377, 395 (2003) (“[T]he floodgates argument has structural problems: it fosters inconsistencies between judges, usually has no explicit factual basis, is ancillary to the central holding of a case, and has a high potential for misuse.”); W. Page Keeton et al., Prosser and Keeton on the Law of Torts 56 (5th ed. 1984) (“It is the business of the law to remedy wrongs that deserve it, even at the expense of a food of litigation.”); Dillon v. Legg, 68 Cal. 2d 728, 7353 (1968) (en banc) (“To the extent that this argument shades into the contention that such claims should be denied because otherwise courts would experience a food of litigation, we point out that courts are responsible for dealing with cases on their merits, whether there be few suits or many; the existence of a multitude of claims merely shows society’s pressing need for legal redress.”).

The prosecution in Syville also suggested another concern: Defendants may strategically delay ineffective assistance claims so that they can, if successful on the coram nobis petition and then the ultimate appeal, benefit from stale evidence at the new proceeding. Syville, 15 N.Y.3d at 401 n. 4.

This strained speculation is absurd. Certainly it has not captivated the Legislature—the body charged with protecting the Penal Law— which has not required due diligence in Article 440. See Point C, above. And throughout Article 440’s almost 50 years of existence, 440 courts have not been plagued by dilatory defendants who strategically allow their convictions to remain intact under the hope that evidence may grow stale. See Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 304 (2001) (rejecting a floodgates argument because experience had proven that theory wrong). On the contrary, defendants have ample incentive to pursue relief quickly as criminal convictions work devastating consequences. It is also highly improbable that rejecting a due diligence rule would force the prosecution into a stale-evidence position. For that problem to arise, the following conditions would have to be met:

 

1. The defendant must succeed on the merits of the ineffective assistance of counsel claim.
2. The relief obtained must be vacatur of a conviction, not modification of the sentence or dismissal.
3. The prosecution’s evidence would actually have to be stale as a result of the defendant’s delay.
4. The defendant is guilty (staleness is certainly not a concern when the defendant is actually innocent).

 

Given this improbable constellation of factors, a staleness concern is overblown.

In the end though, it is irrelevant whether permitting relief for a constitutional violation will undermine the State’s interest in further prosecution. “Where a petitioner defaults a claim as a result of the denial of the right to effective assistance of counsel, the State, which is responsible for the denial as a constitutional matter, must bear the cost of any resulting default and the harm to state interests that [permitting further] review [would] entail.” Coleman, 501 U.S. at 754 (emphasis added). Although significant, the State’s interest in the successful prosecution of crime “occupies a lower place in the American pantheon of noble objectives than” the “bedrock” right to effective assistance of counsel. Maryland v. King, 569 U.S. 435, 480 (2013) (Scalia, J., dissenting); Martinez, 566 U.S. at 12; Melendez-Diaz v. Massachusetts, 557 U.S. 305, 325 (2009) (the Sixth Amendment “may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The [Amendment]—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”). Rejecting constitutional claims because of a speculative stale-evidence concern would ignore that fundamental reality.

* * *

 

The law should not punish a defendant who relies on counsel to perform adequately in an opaque system woven from complex rules―about which the defendant likely knows nothing―simply because the defendant did not discover counsel’s blunders through independent investigation. This punishing rule, which would inevitably lead to arbitrary justice, cannot be tolerated. This Court should reject a due diligence rule.

CONCLUSION

 

This Court should reject a due diligence rule and permit Mr. Grimes to file a leave application with this Court.

 

Respectfully Submitted,

 

MATTHEW BOVA

WILLIAM D. BUCKLEY

SCOTT M. DANNER

DANA E. HEITZ

 

Attorneys for Amicus Curiae

New York County Lawyers Association

Committee on Appellate Courts

 

By:

 

Dana E. Heitz

Of Counsel

August 31, 2018

WORD-COUNT CERTIFICATION

 

The body of this brief contains 5008 words.