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A federal judge in Brooklyn has asked a circuit court whether he can consider the habeas petition of a convicted felon whose state court appeal ran aground when his attorney failed to file papers. The ruling, from Eastern District Judge Frederic Block, presents a question to the U.S. Court of Appeals for the Second Circuit that has yet to be addressed by the circuit or the U.S. Supreme Court. Judge Block said he was certifying the question because the Supreme Court’s holdings in Evitts v. Lucey, 469 U.S. 387 (1985), and Pennsylvania v. Finley, 481 U.S. 551 (1987), clearly limit a defendant’s right to counsel for discretionary appeals following his first appeal at the state level. The failure to file papers occurred during the defendant’s second appeal to the Court of Appeals. The decision will be published tomorrow. Judge Block nonetheless signaled his interest in the case, Hernandez v. Greiner, 01-CV-2240, and the Batson claim presented by its defendant, Jose Hernandez. He also questioned whether a defendant’s need for effective counsel is heightened once leave has been granted for a discretionary appeal. Mr. Hernandez alleges that prosecutors in Queens used peremptory challenges to remove several jurors from his 1995 armed robbery trial because they were black, in violation of Batson v. Kentucky 476 U.S. 79 (1986). “It is, of course, intuitively troublesome to fathom that the failure of [the defendant's] assigned state appellate counsel to timely attend to the ministerial requirement of the filing of the jurisdictional statement, through no fault of [defendant], would preclude this Court from passing on the federal Batson claim that triggered the grant of leave to appeal to the State’s high court,” Judge Block wrote. A majority of the Appellate Division, Second Department, rejected Mr. Hernandez’s Batson claim in 1999, saying the issue was not properly preserved for appellate review. One justice, however, found that the claim was preserved and warranted a remand to state Supreme Court. The appellate justice, Gloria Goldstein, said prosecutors had offered no race-neutral reasons for challenging three black jurors; four others were challenged for neutral reasons. Mr. Hernandez’s trial judge at one point admonished Mr. Hernandez’s attorney for continuing to raise Batson after the judge had denied the challenge, saying do not “waste any more time on that.” Justice Goldstein later granted Mr. Hernandez leave to appeal to the Court of Appeals. When Mr. Hernandez received notice of Justice Goldstein’s certificate in January 2000, he wrote to his appellate attorney, Arza Rayches Feldman, and asked how long she thought it would take the Court of Appeals to respond to the matter. Ms. Feldman responded that “[t]he time it takes the Court of Appeals to decide leave applications varies” � apparently unaware that leave had already been granted. In May, Ms. Feldman filed a jurisdictional statement to the Court of Appeals explaining that she had not filed Mr. Hernandez’s appellate papers because she never received a copy of Justice Goldstein’s order granting leave. The clerk of the Court dismissed Mr. Hernandez’s appeal “for want of prosecution” since his papers had not been filed within 80 days of leave being granted. Ms. Feldman filed a motion to vacate the order of dismissal but was denied. Mr. Hernandez, now acting on his own, sought a writ of error coram nobis in the Second Department, alleging ineffective assistance of counsel. He was also denied, and then brought his case to federal court. Right to Counsel Judge Block refrained from finding that he had jurisdiction over Mr. Hernandez’s case, but he suggested the case needed special attention due to its odd circumstances. In a 21-page opinion, he questioned whether Mr. Hernandez’s right to counsel was not more like that of a defendant with an as-of-right appeal than a discretionary appeal, since leave to the Court of Appeals had been granted. “Once the State, in the exercise of its discretion, granted leave, the defendant had the absolute right under New York law to have his appeal heard by the State’s high court,” Judge Block wrote. “The rationales articulated in Ross for not extending the right to counsel to seek permission to appeal are not quite the same once leave has been granted,” he said, citing Ross v. Moffitt, 417 U.S. 600. The judge certified the following question to the circuit court: Is the judge precluded from considering a defendant’s constitutional claims because they were procedurally defaulted due to his assigned counsel’s failure to timely perfect his appeal as of right to the state’s highest court? “It’s one of those cases where so many things went wrong,” said Patrick J. Walsh of Paul, Weiss, Rifkind, Wharton & Garrison, who was assigned to represent Mr. Hernandez by Judge Block. Mr. Walsh said Ms. Feldman had been cooperative in trying to further Mr. Hernandez’s appeal, and had submitted a declaration to Judge Block. Ms. Feldman did not respond to a request for an interview. Patrick Clark, a spokesman for Queens District Attorney Richard A. Brown, said in a statement, “We believe the issue raised in the petition and certified to the Second Circuit is resolved by the previous Supreme Court and Second Circuit pronouncements.”

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