16-4048-pr Calaff v. Capra 

### UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 , IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 6 th day of November, two thousand seventeen.
Present: D EBRA A NN L IVINGSTON , G ERARD E. L YNCH , D ENNY C HIN , Circuit Judges

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_____________________________________ I VAN C ALAFF , Petitioner-Appellant , v. 16-4048-pr
M ICHAEL C APRA , S UPERINTENDENT , S ING S ING C ORRECTIONAL F ACILITY , Respondent-Appellee

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_____________________________________ For Petitioner-Appellant: D ANIEL F. K OLB (Shahira D. Ali, Matthew Cormack, Sarah Breslow, Ronald Krock, on the brief ), Davis Polk & Wardwell LLP, New York, New York. For Respondent-Appellee: D AVID M. C OHN (Hilary Hassler, Katherine Kulkarni, on the brief ), for Cyrus R. Vance, Jr., District Attorney, New York Count y, New York, New York.2 Appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Petitioner-Appellant Ivan Calaff appeals fr om a November 3, 2016 judgment of the United States District Court for the Southe rn District of New York (Sweet, J. ) denying Calaff’s petition for a writ of habeas corpus. We presume the pa rties’ familiarity with the underlying facts, the procedural history, and the i ssues presented for review.
I. Background In 2004, Calaff was sentenced as a persistent violent felony offender pursuant to New York Criminal Procedure Law sections 400.15 and 400.16, receiving an enhanced sentence because of prior convictions, including a 1993 Ne w York state conviction. The 1993 conviction, where Calaff was charged with second-degree bur glary and pleaded guilty to a lesser-included charge of attempted second-degree burglary, is the subject of th is appeal. At sentencing on March 24, 1993, Justice Harold Rothwax instructed Calaff’s attorney “[c]ounsel, please advise [Calaff] of his Appellat e rights and advise me that you have done so.” J.A. 149. In response, counsel stated on the record, “[l]et the record re flect I am handing my client written notice of his right to appeal, which indicates th[e] steps he can take to perfect that appeal.” Id. Calaff’s trial counsel timely filed a notice of appeal. However, because Calaff did not follow the steps required to perfect his appeal and obtain appointed appe llate counsel, Calaff was never assigned an appellate attorney. Calaff’s sentence expired in 1999. Calaff was convicted of new crimes in 2000 and 2004, both times receiving enhanced sentences due to the 1993 conviction. As relevant here, Calaff’s 2004 c onviction was for second-degree burglary. At3 Calaff’s 2004 sentencing, the court adjudicated Cala ff as a persistent violent felony offender. Unlike in 1993, Calaff moved for assignment of appellate counsel by following the required procedures. The Center for Appellate Litigati on was appointed as appellate counsel. The 2004 conviction was unanimously affirmed on appeal. People v. Calaff , 30 A.D.3d 193 (1st Dep’t 2006). Calaff made no effort duri ng this period to perfect the appeal from his 1993 conviction or obtain appellate counsel for that appeal.
II. Procedural History In 2012, again represented by the Center for Appellate Litigation, Calaff finally pursued his 1993 appeal. The Appellate Division, Firs t Department, following briefing and oral argument, dismissed Calaff’s appeal, noting the 19-y ear-delay and finding th at Calaff’s excuse for the delay – that his 1993 trial counsel had promised to take care of the appeal – was refuted by the 1993 sentencing minutes. People v. Calaff , 103 A.D.3d 500 (1st Dep’t 2013), aff’d sub nom. , People v. Perez , 23 N.Y.3d 89 (2014). The New York C ourt of Appeals unanimously affirmed the dismissal order and, in response to a constitutional argument from Calaff, upheld the constitutionality of a New York state rule of crim inal procedure that Calaff asserted had deprived him of his constitutional right to appellate counsel. See People v. Perez , 23 N.Y.3d 89 (2014). The U.S. Supreme Court denied Calaff’s certiorari petition. See Calaff v. New York , 135 S. Ct. 273 (2014). Calaff then brought the habeas petition at issue in this appeal, collaterally attacking the 1993 conviction, primarily marshaling the same constitutional claim, i.e. , that the Appellate Division, First Department’s pro cedures for assigning appellate c ounsel run afoul of the U.S. Constitution. Although Calaff maintains that the First Department’s procedures for assigning appellate counsel are confusing, he successfully complied with the same procedures in 2004. On October 18, 2016, the district court denied Calaff’ s petition on this basis, reasoning that Calaff’s4 “failure to prosecute his appeal between 2004 [w hen Calaff was aware of and complied with the First Department’s procedures for assigning appellate counsel] and 2012 was a valid ground for dismissal by the New York Court of Appeals.” Calaff v. Capra , 215 F. Supp. 3d 245, 256 (S.D.N.Y. 2016).
III. Discussion Calaff is in custody pursuant to a 2004 senten ce that was enhanced as a result of his earlier, allegedly unconstitutional 1993 conviction. 1 As a result, he confronts the general rule that once a state conviction is no longer open to direct or co llateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant gene rally may not challe nge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained. Lackawanna Cty. Dist. Attorney v. Coss , 532 U.S. 394, 403–04 (2001) (internal citation omitted). The Supreme Court has recognized at least one exception to this general rule: where a prior conviction was obtained in violation of a de fendant’s Sixth Amendment right to trial counsel under Gideon v. Wainwright , 372 U.S. 335 (1963), a defendant ca n use that violat ion to attack a sentence that was enhanced b ecause of the prior conviction. Lackawanna Cty. Dist. Attorney ,

1 If Calaff challenged solely the 1993 convic tion (as opposed to the 2004 sentence as enhanced by the 1993 conviction), we would lack subject matter jurisdiction because Calaff is no longer serving his 1993 sentence and thus “cannot bring a fede ral habeas petition directed solely at” that conviction. Lackawanna Cty. Dist. Attorney v. Coss , 532 U.S. 394, 401 (2001). Here, it is not obvious that Calaff, who is represented by couns el, challenges the 2004 sentence as enhanced by the 1993 conviction as opposed to the 1993 conviction. Compare J.A. 6 (citing only the 1993 judgment of conviction as the basis of Calaff’s challenge), with id. at 18 (check ing a box noting that he is challenging the 2004 sentence). We nonetheless construe Calaff’s petition liberally to challenge the 2004 sentence as enhanced by the 1993 conviction, and thus conclude that we have subject matter jurisdiction to hear this appeal.5 532 U.S. at 404. Because Calaff’s constitutional cl aim concerns the right to appellate counsel under the Fourteenth Amendment, the Gideon exception does not apply. Calaff argues, however, that a second excepti on is available where a petitioner through no fault of his own did not have an opportunity to ch allenge the earlier convic tion. He suggests that six Lackawanna justices – three in the majority, three in the dissent – would have endorsed such an exception. See id. 405 (opinion of O’Connor, J. ) (noting that “anothe r exception to the general rule . . . might be available” when “a defendant can[not] be faulted for failing to obtain timely review of a constitutional claim”); id. at 408 (Souter, J. , dissenting) (incorporating his dissent from Daniels v. United States , 532 U.S. 374 (2001), which would permit review of sentence-enhancing conviction regardless of constitu tional violation alleged). The plurality in Lackawanna provided a non-exhaustive list of two examples that could qualify for this second exception: first, when “a state court . . . without justification[] refuse[s] to rule on a constitutional claim that has been properly pr esented to it,” 532 U. S. at 405; or second, after the limitations period for direct or collateral review has ex pired, when a defendant “obtain[s] compelling evidence that he is actually inno cent of the crime for which he was convicted, and which he could not have uncovered in a timely manner,” id. (citing Brady v. Maryland , 373 U.S. 83 (1963)). We have cited Lackawanna only a handful of times and have never decided whether the second Lackawanna exception is good law. See Triumph v. Connecticut , 308 F. App’x 550, 551 n.2 (2d Cir. 2009) (summary order) ( noting that, based on that case’s facts and posture, we “need not . . . decide whether to validate that excep tion”). For its part, the Supreme Court in Johnson suggested that it has not yet recognized the second Lackawanna exception when it remarked, with respect to the Armed Criminal Ca reer Act, that “[w]e recognized only one exception to this rule that collateral attacks were off-limits, and that was for challenges to state convictions allegedly obtained in violation of the right to appointed counsel, an exception we thought necessary to6 avoid undermining Gideon .” Johnson v. United States , 544 U.S. 295, 303 (2005) (emphasis added). However, in a footnote later in Johnson , the Supreme Court used language that was less conclusive about the existence (or lack of existen ce) of the second Lackawanna exception, writing that it had “allowed that there may be rare cases in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own,” whereby “a prisoner might be able to . . . challenge the prior conviction as well as the federal sentence based on it,” but “the circumstances of th is case do not call for further exploration of that possibility .” Id. at 304 n.4 (emphases added). 2
We need not decide whether this second ex ception is available, because even assuming that it is, Calaff does not qualify for it . Neither of the examples provided in Lackawanna applies to Calaff, as the New York Court of Appeals a ddressed and rejected Cala ff’s constitutional claim on the merits and nobody argues that, in this case , Calaff has obtained compelling evidence of his actual innocence. And here, the fe deral habeas court was not “effectively . . . the first and only forum available for review of the prior conviction.” Lackawanna Cty. Dist. Attorney , 532 U.S. at 406 (plurality opinion). Calaff could have challenged his 1993 convict ion when he received an enhanced sentence in 2004 ba sed on that prior conviction. See, e.g. , People v. Brewington , 127 A.D.3d 1248, 1248–49 (3d Dep’t 2015) (vacating enhanced sentence upon showing that predicate conviction had been unconstitutionally obtained). He offers no persuasive reason for why he failed to do so. He acknowledges that, at that time, he learned “about the forms that

2 Among the courts of appeals, there is no cons ensus as to whether courts must (or should) recognize the second Lackawanna exception. In published opinions, the Seventh and Eleventh Circuits have not recognized the exception. See, e.g. , Grigsby v. Cotton , 456 F.3d 727, 730 (7th Cir. 2006); Hubbard v. Haley , 317 F.3d 1245, 1256 n.20 (11th Cir. 2003). However, the Ninth and Tenth Circuits, in published opinions, and th e Fifth Circuit, in an unpublished opinion, have recognized the second Lackawanna exception as good law. See, e.g. , Dubrin v. People of California , 720 F.3d 1095, 1098

– 99 (9th Cir. 2013); McCormick v. Kline , 572 F.3d 841, 851 (10th Cir. 2009); Brattain v. Cockrell , 281 F.3d 1279 (5th Cir. 2001) (unpublished).7 needed to be filed with the court for an appeal to be taken” and “began to wonder whether [his] 1993 case really had been appealed.” J.A. 196–97. In spite of those concerns, and despite being represented by counsel on appeal, he did no t challenge his enhanced sentence on the ground he now asserts. Therefore, Ca laff’s invocation of the second Lackawanna exception must fail. 3 Because Calaff does not qualify for an exception under Lackawanna , he is barred from challenging his expired conviction that was used to enhance his 2004 sentence. Even though the district court reached the opposite conclusion on this is sue, concluding that Calaff qualified for a Lackawanna exception, we ultimately agree (albeit on a different ground) with the judgment below, denying Calaff’s petition. See, e.g. , Helvering v. Gowran , 302 U.S. 238, 245 (1937) (“In the review of judicial proceedings the rule is settled that, if the de cision below is correct, it must be affirmed, although the lower court relied up on a wrong ground or gave a wrong reason.”). Accordingly, we AFFIRM the judgment of the district court. 4
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

3 Because Calaff’s failure to pursue his appeal in 2004 is sufficient to dispose of his petition, we need not address whether Calaff should have pursued his appeal in 1993.
4 Since we affirm solely on the ground that Calaff does not qualify for an exception under Lackawanna , we have no occasion to discuss the merits of the remainder of the district court’s judgment, including its determination that the First Department’s procedures at issue for assigning appellate counsel are “unconstitutional as an unreasonable precondition on th e right to appellate counsel.” Calaff , 215 F. Supp. 3d at 253. Without taking a position on the matter, we note that at least two other courts have reached a different re sult on this question. See West v. Breslin , No. 06-cv-4167 (PKC), 2008 WL 110947 (S.D.N.Y. Jan. 2, 2008), aff’d , 410 F. App’x 393 (2d Cir. 2011) (summary order); People v West , 100 N.Y.2d 23 (2003) (Wesley, J. ), cert. denied , 540 U.S. 1019 (2003).