Davis v. Fulcomer

MEMORANDUM AND ORDER WEINSTEIN, Chief Judge:

On July 2, 1982 petitioner was convicted of a criminally negligent homicide. He appealed. His present appellate counsel, Steven G. Legum, Esq. was assigned to represent him on January 17, 1984.

On July 28, 1987, Mr. Legum informed petitioner that he had not yet completed the brief in the case. In his letter, he declared “I received a notice from the Appellate Division ordering me to have six particular cases ready for the September 1987 term. Unfortunately your case is not among these six.” The November 16,1987 affidavit of Ivan A. Vogel, Assistant District Attorney of Queens County, indicates that as of that time “no brief has yet been filed in this case.”

These delays must be attributed to a failure on the part of the state to effectively monitor appeals. See Wheeler v. Kelly, 639 F.Supp. 1374 (E.D.N.Y.1986); Harris v. Kuhlman, 601 F.Supp. 987 (E.D.N.Y.1985). It should be noted that the Wheeler case also involved delays by Mr. Legum. The state has had ample notice of Mr. Legum’s inadequacies. Under such circumstances, exhaustion of state remedies is not required. Id.

Unless petitioner’s appeal is decided within ninety days a writ shall be granted setting aside petitioner’s conviction because of an unconstitutional denial of his right to appeal. Id.

This order is stayed pending decision of an appeal from this order.

The Clerk shall send a copy of this Memorandum and Order to the Clerk of the Appellate Division, Second Department, petitioner, Assistant District Attorney Ivan A. Vogel, Esq. and Steven G. Legum, Esq. at 114 Old Country Road, Mineóla, New York 11501.

So ordered.