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Nell v. Warden Charles James

decided: January 30, 1987.

GARY NELL, PLAINTIFF-APPELLANT,
v.
WARDEN CHARLES JAMES, SUPERINTENDENT OF COLLINS CORRECTIONAL FACILITY, JOHN J. SANTUCCI, DISTRICT ATTORNEY FOR QUEENS COUNTY AND ROBERT ABRAMS, ATTORNEY GENERAL FOR THE STATE OF NEW YORK, DEFENDANTS-APPELLEES



Appellant Gary Nell appeals from a determination of the United States District Court for the Eastern District of New York (Sifton, J.) which denied his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Assigned counsel has filed a brief on Nell's behalf asserting that there are non-frivolous issues and asking to be relieved as counsel pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). The State moves for summary affirmance of the order. Appellant moves for assignment of new counsel. Motion for summary affirmance denied and remanded.

Author: Cardamone

Before: CARDAMONE, PIERCE and ALTIMARI, Circuit Judges.

CARDAMONE, Circuit Judge:

In 1967 the Supreme Court delivered its view of the role of court-appointed appellate counsel prosecuting an appeal from a criminal conviction when counsel believes the appeal has no merit. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Approximately 25 Anders briefs have been filed annually in this Circuit for the past two years. Over one-half of the briefs were submitted by private attorneys assigned to represent indigent defendants under the Criminal Justice Act, 18 U.S.C. § 3--6A (CJA). A significant number of these briefs fall below the standards set by the Supreme Court. We believe it necessary therefore to state again the Anders requirements for the benefit of those members of the private bar who undertake CJA assignments.

This appeal is from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.) denying appellant Gary Nell's petition for a writ of habeas corpus sought pursuant to 28 U.S.C. § 2254. Assigned counsel, Richard Lind, Esq., seeks to be relieved from representation and has filed an Anders brief. The Assistant Attorney General of New York moves for summary affirmance of the district court's order. For reasons to be explained shortly, we grant counsel's motion to be relieved and also grant appellant Nell's motion for assignment of new counsel. The State's motion for summary affirmance of the judgment of conviction is denied.

I

A. Background

In May 1984, after Nell pled guilty to several counts of burglary and attempted burglary in the second degree, he was sentenced to 5 to 10 years as a second violent felony offender under N.Y. Penal Law § 70.04. At sentencing, Nell was asked by the court whether he wished to controvert a 1979 felony conviction which was the predicate offense for an enhanced sentence as a violent-felony offender. Although informed that silence would be considered an admission, Nell requested that he be allowed to "stand mute". His attorney failed to controvert the 1979 conviction.

Nell subsequently moved pro se to vacate that conviction pursuant to N.Y. CPL § 440.10 alleging that he had not received effective assistance of counsel in the 1979 proceedings. The motion was denied and leave to appeal was denied by the Appellate Division, Second Department, in February, 1985. Nell then filed the present petition in federal district court seeking habeas relief. In his petition, appellant attacks his 1979 conviction claiming that his counsel failed to present evidence which would have established his standing to challenge a search that implicated him in a robbery.

Nell has already challenged the 1979 robbery conviction in a prior habeas petition filed in 1981, the denial of which we affirmed by summary order. Nell v. Dunham, 722 F.2d 728 (2d Cir.), cert. denied, 464 U.S. 836, 78 L. Ed. 2d 121, 104 S. Ct. 124 (1983). In his 1981 petition, insofar as here pertinent, appellant urged that the state had not provided an opportunity for full and fair litigation of his Fourth Amendment claim and that the identification testimony gained as a result of a search of his girlfriend's apartment should have been suppressed because he was also living in the apartment and therefore had standing to challenge the evidence seized.

The Fourth Amendment claim is based upon the following facts. Local police officers entered an apartment -- where Nell lived with his girlfriend -- looking for one Patrick Nolan; the police wanted to arrest Nolan for a parole violation in connection with an unrelated crime. Nolan, Nell and Nell's girlfriend were all in the apartment. While there, one of the officers obtained a miniature detective shield. Nell says that the detective obtained the shield by an unlawful search, but the State claims that Nell's girlfriend gave the shield to the officer. In any event, the shield was traced to the victim of a robbery that had occurred several days previously, and the victim identified Nell's photograph which resulted in his arrest.

Following a Wade hearing, the State court denied Nell's motion to suppress the identification testimony. Nell's counsel then moved for the same relief on the ground that the shield had been seized in violation of the Fourth Amendment and that the identification of Nell as the accused followed directly from the illegal search and seizure. But counsel's written affirmation in support of the motion stated that, at the time the police were searching for drugs and weapons in connection with Nolan's arrest, Nell had been present in "the apartment of his girlfriend". The affirmation failed to allege that Nell lived in the apartment. The motion to suppress was denied.

In May 1979 Nell pled guilty to a reduced charge of attempted robbery in the second degree. His later motion to vacate the judgment on the ground that his identification had come about from the illegal seizure of the miniature shield was denied. The Appellate Division, Second Department, affirmed his conviction, and the Court of Appeals denied leave to appeal.

In rejecting Nell's Fourth Amendment claim in the earlier 1981 habeas proceedings, Judge Sifton concluded that Nell's allegation of standing to challenge the search as presented to the State court was insufficient as a matter of law, since he had not asserted a property or possessory interest in the apartment. The district court further noted that though Nell now contended that he had been living with his girlfriend for a number of years and thus had a protectible privacy ...


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