Federal Court Holds New York State 'Responsible For Its Extraordinary Neglect'

Negligence of State Brings Release of Persistent Felon
The New York Law Journal by Mark Hamblett  -  April 11, 2012

Declaring that "fair play demands" that New York state "be held responsible for its extraordinary neglect" in missing a deadline, a federal appellate court has approved the release of a convicted robber—even though it had upheld the constitutionality of the statute under which he was convicted.  The U.S. Court of Appeals for the Second Circuit said on April 10 that Southern District Judge Lewis Kaplan did not abuse his discretion in ruling that New York had missed a one-year deadline to challenge his grant of habeas corpus relief to prisoner Edward Stevens.  The state remained ignorant of Kaplan's original order until it was notified by Stevens' attorney, who had made a tactical decision to wait the year before writing prison authorities and demanding his client's release.  Stevens was freed from prison last month, as Judges Joseph McLaughlin, Barrington Parker Jr. and Richard Wesley lifted a stay on his release a few days after hearing oral argument on March 5 in Stevens v. Miller, 11-5343-pr.  After his 2000 conviction for third-degree robbery, Stevens was designated a persistent felony offender and sentenced to 15 years to life in prison.  He claimed in a habeas corpus petition that his designation as a persistent offender and sentence ran afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004).  Kaplan placed the case on the suspense docket in 2009 after being told by defense counsel Richard Joselson of the Legal Aid Society that the Second Circuit was weighing the constitutionality of the state law.  On March 31, 2010, a circuit panel declared the law unconstitutional in Besser v. Walsh, 601 F.3d 163.  In an April 9, 2010, letter copied to state Assistant Attorney General Ashlyn Dannelly, Joselson asked Kaplan to grant the petition based on Besser, but the state asked the judge to hold off because a petition for rehearing en banc was pending at the circuit.

On April 30, 2010, the circuit agreed to rehear Besser en banc, but that information was not conveyed to Kaplan, who went on to grant the petition on Sept. 27, 2010. Judgment was entered two days later on Sept. 29.  However, while notice was mailed by the clerk's office to defense counsel, it was not mailed to the state, which remained unaware of Kaplan's decision because it failed to check the docket sheet. It is unclear from the record who was responsible in the attorney general's office at this point, and the office did not return a call seeking comment.  Three weeks later, on Oct. 18, 2010, the circuit sitting en banc reversed the Besser panel and found the persistent felony offender statute did not run afoul of clearly established U.S. Supreme Court precedent in Portalatin v. Graham, 624 F.3d 69 (2d Cir.) (NYLJ, Oct. 19, 2010).  With the state still unaware that Kaplan had granted Stevens' petition, Joselson waited exactly one year before writing counsel at the Department of Corrections and, with the petition enclosed, requested that Stevens be released.  "We did what Mr. Stevens wanted us to do," Joselson said in an interview. "We talked about it and that's the decision we made."  It was not until Oct. 12, 2011, that the state attorney general's office became aware of Kaplan's order granting the petition.  Assistant Attorneys General Alyson Gill, Priscilla Steward and Paul Lyons submitted a memorandum in support of a motion to vacate the habeas relief under Rule 60(b)(6) of Federal Rules of Civil Procedure.  Rule 60(b)(1) allows for relief from a final judgment, order or proceeding based on "mistake, inadvertence, surprise, or excuseable neglect," but it has a one-year time limit. Rule 60(b)(6) is an equitable catch-all provision, allowing for such relief for "any other reason that justifies relief" as long as the request is made within a reasonable time.  At a hearing before Kaplan on Oct. 18, 2011, the state admitted its negligence for failing to check the docket and inform Kaplan of the Portalatin decision.  It nonetheless argued that "extraordinary circumstances" justified the court excusing its failure to file within the one-year time limit. Those circumstances were that Besser was overruled three weeks after the petition was granted, the mandate in Besser never issued, Stevens' counsel never told the court about Portalatin and the state never received notice.  Joselson was frank with the court, admitting that he did not write the Department of Corrections for more than a year to block the state from relief under Rule 60(b)(1).  Kaplan denied the motion on Dec. 23, 2011, saying the proper avenue for relief would have been Rule 60(b)(1), but that was unavailable because one year had passed.  The state turned to the Second Circuit, where it again pleaded "extraordinary" circumstances, including the allegation that Joselson "misled" the district court.  But Wesley, writing for the circuit, said Joselson "did not mislead the court" and made a "tactical decision" for his client.  "We find that, even when viewed in the light most charitable to the State, the State's motion is nothing more than one premised on its own mistake, inadvertence, surprise, and neglect—in other words, an untimely Rule 60(b)(1) motion masquerading as a Rule 60(b)(6) motion," Wesley said.  The state's motion, he said, "is nothing more than an attempted end-run around the one year time limitation on a Rule 60(b)(1) motion."  The panel rejected several arguments offered by the state, including that Portalatin was a change in decisional law amounting to "extraordinary circumstances" and that "comity concerns" warranted relief.  Wesley said the state did indeed have a strong interest in assuring that constitutionally valid state court judgments are not set aside, but it was not enough.  "Where the State does not diligently protect its interests, however, comity concerns have considerably less force," he said. "Had the State behaved in a reasonable manner, Stevens' sentence would not have been set aside by the federal courts."  The state, he continue, "should not now be heard to complain of comity concerns that find their genesis in its own neglect and failure to litigate Stevens' habeas petition with due diligence."  Mark Hamblett can be contacted at mhamblett@alm.com.