80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the Court explained that an important feature of the interference situation is that "prejudice is so likely that case by case inquiry into prejudice is not worth the cost," id. at 692, while in the conflict situation, "it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests."
Both these characteristics are present here. Failure to pursue an appeal is extremely likely to be prejudicial. However, the existence of prejudice is extremely hard to prove in the absence of review by a capable advocate of the record at trial. Thus, I find that petitioner is not required to demonstrate additional probable prejudice flowing from his failure to take an appeal.
Affirmative Defense: Procedural Default
The state appears to suggest that petitioner has "deliberately bypassed" the state appellate process, in favor of pursuing a litigation strategy centered on federal courts. In the alternative, the state argues that petitioner is barred from the instant action by procedural defaults in that he failed to perfect his appeal within the prescribed time periods in the state system.
Knowing and voluntary waiver, rather than "cause and prejudice," appears to be the standard for evaluating a decision to forego appeal. In Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977), Justice Burger joined in the majority opinion signed by five justices but concurred specially, expressing the view that the Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963), voluntary waiver standard had no application to decisions which were necessarily made by counsel, and indicating that he would "leave the core holding of Fay where it began," and reject its extension to decisions which must be made rapidly at trial. 433 U.S. at 92-94. In Boyer v. Patton, 579 F.2d 284 (1978), the Third Circuit, citing Chief Justice Burger's concurrence, held that where defendant was inexperienced and confused as to his right to appointed counsel, he did not waive his constitutional objections by failure to take a direct appeal. In Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986), the Court reaffirmed the distinction between failure to prosecute an appeal at all and failure to raise particular promising issues.
Thus, Fay still appears to apply to major strategic decisions which should be made by the defendant personally.
While the state has not suggested any conduct by petitioner indicating a waiver in the sense of a desire to forego appellate review,
the state appears to argue that there was a deliberate bypass, in that petitioner chose to pursue legal challenges in federal rather than state court. Given the facts of this case, the state's position is untenable. Petitioner made several efforts to verify the status of his state appeal before realizing that none had been filed. The very aim of the present habeas petition, and of the earlier one, in which petitioner also asserted denial of the right to appeal and denial of effective assistance of counsel on appeal, has been to secure an appeal in the state system. Petitioner has not attempted to use habeas proceedings as an alternative to direct appeal, but rather has consistently attempted to obtain access to state appellate procedures.
Moreover, the very decision by petitioner to proceed in federal court is itself the product of the state's failure to provide adequate representation in the crucial post-conviction period. Given the federal habeas statute's exhaustion requirement and the development of that doctrine in case law by the late 1970's, it was plain that attempts to obtain review in federal court without prior efforts to exhaust state remedies would normally be futile. Had petitioner received competent legal advice, he would have been so informed. While choosing the forum in which to proceed, however, petitioner was not represented.
By the time that petitioner was in contact with a lawyer, his case was already on appeal to the Third Circuit.
The Third Circuit apparently found the claim that exhaustion was excused by state delays sufficiently colorable to issue a certificate of probable cause permitting petitioner to appeal the denial of the writ of habeas corpus by the district court. Cf. Booker v. Kelly, 636 F. Supp. 319 (W.D.N.Y. 1986), aff'd without opinion, 833 F.2d 1002 (2d Cir. 1986) (delay in appeal not equivalent of complete absence of effective state appellate process so as to excuse failure to exhaust state remedies, absent attempt by petitioner to obtain coram nobis relief in state court, but petitioner was entitled to certificate of probable cause to permit appeal on exhaustion question). The counsel appointed to assist petitioner in the federal case found it worthwhile to petition for certiorari to the United States Supreme Court. Thus, petitioner's initial decision to proceed in federal rather than state court stemmed from lack of proper representation, and his decision to stay in federal court was on advice of counsel. Under the circumstances, I find no deliberate bypass, and believe that petitioner should not be penalized for his belief that exhaustion could be excused under the circumstances.
Petitioner's response to the state courts' denial of his motion for a belated appeal is inconsistent with any notion that he maneuvered to obtain federal as opposed to state adjudication of his claims. Rather than returning to federal court immediately once it became possible to do so, petitioner filed another motion in state court for an appeal nunc pro tunc, which was opposed by the state and was denied. Thus, I find the theory that petitioner knowingly and voluntarily "by-passed" state courts in preference for a federal forum to be without merit.
The claim that petitioner is barred by procedural defaults from obtaining appellate review is little more tenable. Even if the applicable standard for reviewing petitioner's failure to file a timely appeal is no longer Fay's knowing and voluntary waiver standards but the much more stringent standard set forth in recent cases involving procedural defaults, petitioner must prevail. Under the standards set forth by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1976), a habeas petitioner who has failed to comply with state procedural rules must show cause for that failure to comply and prejudice stemming therefrom. In Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), the Court clarified that where counsel's actions caused the procedural default, relief will only be available if the behavior resulting in default constituted ineffective assistance under the rigorous standards of Wainwright v. Strickland. Since the failure of either assigned counsel or the Public Defender to file an appeal within time or to file for an appeal nunc pro tunc more promptly constituted ineffective assistance, and since prejudice may be presumed under the circumstances, petitioner is entitled to relief.
Character of Relief
Where an appeal has been denied in violation of due process and Sixth Amendment rights, the normal remedy is to order the state to make available an appeal nunc pro tunc. See, e.g., Macon v. Lash, 458 F.2d 942 (7th Cir. 1972) (finding that where petitioner had evidenced desire to appeal before time had expired, but no appeal was had, appropriate relief is preparation of transcript, appointment of counsel, and appeal in state system, and noting that "ironically, the desire to minimize expenses by saving the cost of preparing trial transcripts has no doubt resulted in post-conviction litigation expenses far greater than the cost of the appeal itself" and that "in any event, the requirements of evenhanded procedures are clear"); Joseph v. White, 404 F.2d 322 (5th Cir. 1968); Bosler v. Swenson, 363 F.2d 154 (8th Cir. 1966), aff'd per curiam, 386 U.S. 258, 18 L. Ed. 2d 33, 87 S. Ct. 996 (1967); Garton v. U.S. ex rel. Kumitis v. Rundle, 244 F. Supp. 894 (E.D. Pa. 1965); Spaulding v. Taylor, 234 F. Supp. 747 (D. Kan. 1964).
Here, however, it is not clear whether an appeal at this late date will be feasible. The state has indicated that the materials necessary to prepare complete transcripts in this matter have been lost.
I have been informed by the Court Reporter in Passaic County that these materials were most likely lost in the summer of 1985, when asbestos removal generated chaos in storage facilities. Petitioner tried at least six years before that to obtain copies of the transcripts. In a letter dated May 14, 1979, petitioner wrote to Joel Harris at the office of the Public Defender, stating that:
I am concerned in that I have not heard any word from this office regarding my trial transcripts, or an attorney being designated to represent me on appeal. Won't you kindly check your files and advise me 1) the date a Notice of Appeal was filed and the docket number assigned; 2) whether the complete trial transcripts have been received and if so I hereby request that a copy be made and sent to me prior to designating an attorney . . .