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July 5, 1988

Lawrence L. Simmons, Petitioner,
Howard L. Beyer, Superintendent, New Jersey State Prison, Trenton, and W. Cary Edwards, Attorney General of New Jersey, Respondents

The opinion of the court was delivered by: DEBEVOISE

 Lawrence L. Simmons petitioned for a writ of habeas corpus. Petitioner argues that he was deprived of the "right to appeal" by counsel's failure to file an appeal on his behalf. He also alleges that he was denied effective assistance of counsel on appeal: *fn1"

 Although petitioner has provided only a cursory description of the grounds for his petition for habeas corpus, his entitlement to the writ is clear in light of the procedural nightmares which have to date prevented him from obtaining any appellate review of his convictions for murder, murder while armed, robbery, and conspiracy to commit robbery, which culminated in a sentence of life plus 9-10 years. Petitioner must be granted an opportunity to obtain the substantive review which he has sought in vain at least from the date of sentencing in December, 1977.

 Procedural History :

 Petitioner was convicted on November 16, 1977 in the New Jersey Superior Court. He was indigent, and was represented at trial by Adolph Gallucio, who was a "pool" attorney assigned by the Public Defender. Final judgment was entered on December 2, 1977, and petitioner was sentenced on December 21, 1977. At that time he was advised of his right to appeal, and advised his pool attorney that he wished to appeal. However, no notice of appeal was filed within the 45-day limit established by New Jersey law. From March 1978 to January 1980, petitioner exchanged correspondence with trial counsel and the appellate section of the Public Defender in attempts to verify the status of his appeal and/or to commence an appeal. Most of this correspondence, which will be discussed in greater detail later in the opinion, is collected in Exhibit 17.

 On March 24, 1980, after numerous attempts to verify the status of or, in the alternative, assure the filing of, a state appeal, petitioner filed for a writ of habeas corpus in federal district court in New Jersey. The court denied the petition for failure to exhaust state remedies, rejecting petitioner's argument that delays in the appellate process excused the exhaustion requirement in his case. The state argued in that proceeding that state remedies were still available to petitioner, in the form of an appeal nunc pro tunc, which is in theory available automatically under New Jersey law for criminal defendants who have "within time" requested that an attorney file an appeal on their behalf. The state continued to argue that state remedies were available as petitioner appealed to the Third Circuit and petitioned for certiorari before the United States Supreme Court. (See Exh. 4, Respondent's Brief in Opposition, at 5-6.) On May 21, 1981, the Third Circuit denied petitioner's motion for the provision of pretrial, trial and sentencing transcripts, without prejudice to application for such materials in state court. On January 27, 1982, the Third Circuit affirmed the denial of a writ of habeas corpus. On June 7, 1982, the United States Supreme Court denied a petition for certiorari.

 On July 12, 1982, petitioner filed in the trial court for post conviction relief. On December 10 and 20, 1982, the trial court held evidentiary hearings at which petitioner was represented by Michael Kingman, designated counsel. (This representation ensued after Judge Marchese wrote to the Public Defender's Office on July 15, 1982 that "I would assume that somebody from your office should be assigned to represent the defendant soon so that he can prepare for the hearing date." *fn2"

 Uncontradicted testimony was presented by petitioner and his trial attorney to the effect that petitioner had wished all along to appeal and had asked his trial attorney to handle this for him immediately after sentencing. Petitioner testified that he recalled that at sentencing, the trial court "asked Mr. Galluccio as well as myself will a notice of appeal be filed, and Mr. Galluccio and myself said, yeah-Mr. Galluccio stated that he will file a notice of appeal for the Defendant, Lawrence Simmons." (December 10, 1982 Transcript, at 9-10.) *fn3" Petitioner testified that between conviction and sentencing, and again immediately following sentencing, Mr. Galluccio indicated that he would file a notice of appeal. (December 10, 1982 Transcript, at 10.) Petitioner also stated that he had signed some papers at trial counsel's request which were related to an appeal. (Id. at 11.) Petitioner testified that he continued to believe that an appeal had been filed on his behalf until he received letters dated June 27, 1979 from Ms. Rosemary Burke of the Appellate Division of the Superior Court and August 1, 1979 from the Office of the Public Defender. (Id. at 17.) He testified that he remained confused on January 5, 1980, when he wrote to trial counsel asking whether counsel had filed an appeal within time. (Id. at 18-19.) He testified that he first became aware that Galluccio had never filed a notice of appeal when he received a letter from Galluccio dated January 18, 1980. (Id. at 19-20.)

 Petitioner's trial counsel testified at a hearing held ten days after petitioner testified, confirming certain aspects of petitioner's account and disputing others. Galluccio denied that he had agreed to prosecute an appeal for petitioner, but testified that he believed that petitioner had indicated immediately upon sentencing that he wished to appeal; he could not recall whether petitioner had also stated his desire to appeal at the time of conviction. (Exh. 19 at 3.) Although he lacked specific recollections as to what he had advised petitioner, he believed based on his typical practice that he would not have agreed to file the appeal on petitioner's behalf and would have told him that the appeal must be handled by the appellate division of the Public Defender, unless he was appointed to continue in the case. He indicated that his practice was to tell defendants that they had 45 days to appeal. Former counsel made no written memorials concerning this conversation or conversations, and took no steps to inform the Public Defender of petitioner's desire to appeal.

 Trial counsel could not remember when petitioner next spoke with him concerning a possible appeal, but said that though written communications began in March 1978, after the 45-day period had expired, he believed that there were one or two phone calls before the letter. He testified that "I believe I received the phone call from him while he was either in the Passaic County jail or in the state's prison where he indicated that he wanted to appeal, although there's no memorandum to that effect in my file." (Exh. 19 at 8.) Various letters in the record from and to petitioner's trial attorney, the Public Defender Appellate Section, and the Appellate Division, suggest that petitioner originally believed an appeal had been filed, and that when he found out none had, he was confused about the proper course to follow. See Exh. 17.

 At the conclusion of the first state post-conviction relief proceeding, Judge Marchese noted that petitioner was in effect seeking permission to make a belated appeal, which he was without jurisdiction to grant. He signed an order denying relief, but making the following factual findings, inter alia :

"3. Defendant immediately after imposition of his sentence expressed a desire to appeal to his attorney, who advised defendant that the Public Defender's Office would handle his appeal; 4. Either because he was misled or confused, defendant believed an appeal had been filed on his behalf by his trial attorney, when in fact no Notice of Appeal has ever been filed on defendant's behalf; 5. Defendant has at all times maintained his desire for appeal, as evidenced by his testimony in this matter, and his filing, pro se, of a number of Federal pleadings concerning his conviction in this matter; 6. At no time did defendant knowingly or intentionally waive his right to appeal." (Exh. 20.)

 The Court recommended that the Appellate Division permit defendant to appeal. This order was dated July 7, 1983.

 In August, 1983, petitioner sought relief from the Appellate Division in the form of leave to file a late appeal nunc pro tunc. The motion was made on or about August 1, 1983, and filed on August 22, 1983. A Notice of Appeal was submitted on August 17, 1983, by the Public Defender. Judge Marchese's findings concerning petitioner's desire to appeal were presented. The Passaic County Prosecutor responded in a letter of August 22, 1983, neither opposing nor consenting to the request. On September 15, 1983, petitioner submitted an amended notice of appeal. On September 22, 1983, the appeal was docketed and given a number. Five days later, on September 27, 1983, the Appellate Division denied the motion and dismissed the docketed appeal without opinion. The Appellate Division's standard order indicated that the state had filed an answer. However, defendant's counsel stated in an affidavit that he had never been served with an answer, and had been under the impression that the motion to file a late appeal was unopposed. (Exh. 18, at DA 11-12.)

 On October 12, 1983, petitioner's counsel filed a motion for reconsideration or rehearing. He pointed out that under State v. Altman, 181 N.J. Super. 539, 438 A.2d 576 (App. Div. 1981), the only determination to be made on a motion by an indigent criminal defendant for appeal nunc pro tunc is whether the defendant had within time asked counsel to file such an appeal. He also pointed to a Notice to the Appellate Bar relaxing Rule 2:4-4(a), which was published at 100 N.J.L.J. (1977), to the effect that:

"the Supreme Court has directed the Appellate Division to relax Rule 2:4-4(a) in favor of allowing an out-of-time appeal nunc pro tunc on behalf of an indigent criminal defendant in any case where it satisfactorily appears that the defendant personally, within time, requested his trial counsel or the Public Defender's Office to file an appeal on his behalf (emphasis added)."

 Despite the apparent applicability of this guideline to the petitioner's situation, this motion was denied on October 25, 1983, again without any explanation.

 The next appropriate step was to petition to the state Supreme Court for certification. Due to what Kingman, the attorney assigned to the case by the Public Defender's Office, described as "cumbersome procedures" of communication between assigned counsel and the Public Defender, the petition for certification was filed on November 4, 1983, several days late. (Exh. 5.) Kingman filed a memorandum and affidavit explaining the delay, and requesting an extension of time for filing. In his substantive papers, see Petition for Certification, Exh. 18, counsel repeated the state court rule arguments already made, but made no effort to raise any constitutional argument, such as that defendant had been denied effective assistance of counsel or that the denial of an appeal violated due process. *fn4"

 At this point, the state's posture -- which had previously been one of neutrality -- was reversed. The state responded to the request for an extension of time for the filing of the Petition with a letter dated November 18, 1983, reading:

"The state is in receipt of defendant's motion for extension of time to file Petition for Certification. Defendant fails to indicate the length of time required to file a petition. Also, in view of the age of this matter, the state will not consent to this motion."

 (Exh. 16.) The state sent letters in January 1984 (Exh. 3) and September 1984 (Exh. 6) opposing the petition for certification of the denial of post-conviction relief on the grounds that no colorable issue or demonstration of probable merit had been made. The state also criticized Judge Marchese's factual findings. Counsel did not attempt to set forth grounds for the requested appeal, but rather pointed out that under case law and the Supreme Court Notice directing that appeals nunc pro tunc be granted liberally, no indication of issues which would be presented could be required. Counsel indicated that he could not indicate what issues would be raised, since he had neither represented petitioner at trial nor had an opportunity to review the transcript, since none had been prepared. *fn5" Seven and a half months later, on June 19, 1984, the state Supreme Court granted petitioner the extension of time which he sought. On November 7, 1984, the court denied the petition for certification, without opinion.

 On May 9, 1986, petitioner submitted a pro se notice of motion indicating that he "will move before the Superior Court, Appellate Division, in the above titled action, for entry of the following relief with reliance on the attached letter brief and appendix: 'An order allowing defendant to file nunc pro tunc Notice of Appeal.'" In a letter dated May 15, 1986, the prosecutor wrote to the clerk of the Appellate Division that "we oppose defendant's pro se motion for leave to file a Notice of Appeal nunc pro tunc, based upon our understanding of the matter's procedural history. Our records indicate the matter has already been disposed." (Exh. 7.) In a letter dated August 7, 1986, the state submitted opposition papers which noted the disposition of petitioner's previous motion to file an appeal nunc pro tunc. On August 12, 1986, the Appellate Division denied petitioner's motion to proceed as an indigent and to file a notice of appeal nunc pro tunc.

 The instant petition for a writ of habeas corpus was filed in October 1986.

 Factual Finding Concerning Request to Appeal

 The state argues that petitioner has already had a "full and fair opportunity" to litigate this matter, and that habeas relief should be denied because he has "fail[ed] to carry his burden of demonstrating that (1) the state court hearings were vitally flawed, and (2) the state court findings were not supported by the record." This argument is peculiar and unpersuasive in the context of this case.

 The only state court which made a relevant "finding" -- the state trial court *fn6" -- found that petitioner had expressed a desire to appeal immediately after sentencing, and never voluntarily and knowingly waived the right to appeal. The courts which rejected petitioner's attempt to appeal nunc pro tunc -- the Appellate Division and Supreme Court -- did not comment ...

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