11-111-op
Word v. Lord
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2010
(Submitted: April 11, 2011 Decided: May 13, 2011)
Docket No. 11-111-op
DIANE WORD,
Petitioner,
v.
E LAINE L ORD, S UPERINTENDENT OF B EDFORD H ILLS C ORRECTIONAL F ACILITY,
Respondent.
Before:
K EARSE, M INER, and C HIN, Circuit Judges.
Application for an order authorizing the United
States District Court for the Southern District of New York
to consider a successive petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
D ENIED.
D IANE W ORD, pro se, Bedford Hills
Correctional Facility, Bedford
Hills, New York.
A LAN G ADLIN, Assistant District Attorney,
for Cyrus R. Vance, Jr., Office of
the District Attorney, New York
County, New York, New York, for
Respondent.
P ER C URIAM:
Diane Word, proceeding pro se, seeks leave to file
a successive habeas petition pursuant to 28 U.S.C. § 2254.
She contends that New York's appellate courts violated her
due process rights when they denied her application for a
writ of error coram nobis. For the reasons below, we hold
that a § 2254 petition is not a proper vehicle for
challenging deficiencies in a state post-conviction
proceeding, and deny the motion. 1
1
The statutory deadline for a decision under the
Antiterrorism and Effective Death Penalty Act is thirty days.
See 28 U.S.C. § 2244(b)(3)(D) (2006). Because this Court did not
receive the records required for a reasoned decision from the
petitioner until March 16, 2011, the statutory deadline was
presumably April 15, 2011. See Galtieri v. United States, 128
F.3d 33, 37 (2d Cir. 1997), overruled in part on other grounds by
Magwood v. Patterson, 130 S. Ct. 2788 (2010). "[W]here an issue
requires a published opinion that cannot reasonably be prepared'"
in that time, however, we may exceed the thirty-day time limit.
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BACKGROUND
Word was convicted after a jury trial in the New
York Supreme Court, New York County, of reckless
manslaughter and depraved indifference murder -- both in
connection with the death of her infant child. 2 She was
sentenced to an indeterminate sentence of five to fifteen
years' imprisonment for the manslaughter conviction and to
an indeterminate sentence of fifteen to years to life for
the murder conviction. On appeal, each conviction was
affirmed by the Appellate Division. See People v. Word, 43
A.D.3d 773 (1st Dep't 2007) (murder conviction), leave to
appeal denied 9 N.Y.3d 1011 (2007); People v. Word, 260
A.D.2d 196 (1st Dep't 1999) (manslaughter conviction), leave
to appeal denied 93 N.Y.2d 1029 (1999).
Johnson v. United States, 623 F.3d 41, 43 n.3 (2d Cir. 2010)
(quoting Galtieri, 128 F.3d at 37).
2
The trial court set aside the original jury verdict as
to the murder charge, but the Appellate Division reinstated the
conviction. People v. Word, 260 A.D.2d 196, 196-97 (1st Dep't
1999). A detailed statement of the facts regarding Word's
conviction and prior proceedings is set forth in Chief Judge
Preska's order of dismissal adopting Magistrate Judge Pitman's
Report and Recommendation. Word v. Lord, No. 04 Civ. 328 (LAP)
(HBP), 2009 WL 4790222 (S.D.N.Y. Dec. 11, 2009).
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Word sought, unsuccessfully, a writ of error coram
nobis from the state in 2001 and 2003. 3 In October 2009,
she applied for a writ of error coram nobis a third time.
Her coram nobis petition alleged that she was denied
effective assistance of appellate counsel in her direct
appeal when her counsel failed to, inter alia, challenge the
First Department's decision to deny production of a Mapp
suppression hearing transcript. The Appellate Division
summarily denied the petition on April 15, 2010, and the New
York Court of Appeals denied leave to appeal and denied
reconsideration on August 4, 2010 and on January 19, 2011. 4
At various stages of her direct and post-
conviction appeals, Word also sought relief in federal
court. She filed or sought permission to file § 2254 habeas
petitions four times in federal court -- in 2000, 2003,
3
People v. Word, 285 A.D.2d 997 (1st Dep't 2001), leave
to appeal dismissed 96 N.Y.2d 926 (2001); People v. Word, 2003
N.Y. App. Div. LEXIS 9965 (1st Dep't Sept. 25, 2003), leave to
appeal dismissed 100 N.Y.2d 646 (2003).
4
People v. Word, No. M-5308, 2010 N.Y. App. Div. LEXIS
10051 (1st Dep't Apr. 15, 2010), leave to appeal denied 908
N.Y.S.2d 171 (2010), reconsideration denied 917 N.Y.S.2d 628
(2011).
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2004, and 2008. In her first habeas petition, Word directly
challenged her convictions, alleging ineffective assistance
of trial and appellate counsel. The Southern District of
New York dismissed the petition because Word failed to
exhaust her claims and -- reaching the merits -- found them
"almost frivolous" and without merit. Word v. Lord, No. 00
Civ. 5510 (LAP)(HBP), 2002 U.S. Dist. LEXIS 19923, at *8-*9
(S.D.N.Y. Mar. 18, 2002).
In January 2004, Word sought leave to file a
successive § 2254 petition. This Court denied her motion
with respect to most of her constitutional claims because
they failed to meet the gatekeeping requirements for
successive petitions under 28 U.S.C. § 2244(b)(2), but
granted her motion with respect to her claim that the New
York Court of Appeals' denial of her 2003 coram nobis
petition deprived her of due process. We reasoned, then,
that "because this claim did not exist at the time her
original habeas petition was filed," it was not a
"successive" claim. Word v. Lord, No. 04-538-op (2d Cir.
Sept. 23, 2004). The district court, adopting Magistrate
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Judge Pitman's report and recommendation in its entirety,
denied Word's due process claim because her challenge
concerned only state post-conviction proceedings and
therefore was not subject to federal habeas review. Word v.
Lord, No. 04 Civ. 328 (LAP) (HBP), 2009 WL 4790222, at *5-7
(S.D.N.Y. Dec. 11, 2009).
Word filed the present motion for leave to file a
successive habeas petition on February 7, 2011. The
petition would challenge the state courts' denials, in 2010
and 2011, of her third coram nobis petition.
DISCUSSION
Word contends that the most recent denials of her
coram nobis petition constitute "newly discovered evidence"
that a federal court may review in a successive § 2254
habeas petition. See 28 U.S.C. § 2244(b)(2) (2006)
(authorizing review of new claims in a second or successive
§ 2254 petition only if they rest on a new rule of
constitutional law or newly discovered evidence). She
argues that the state appellate courts "arbitrarily and
capr[ic]iously denied corrective procedure and provide[] no
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corrective procedure to redress [alleged constitutional
errors in her conviction]." Pet'r's Mot. at 3. We deny
Word's application because her new petition, which purports
to assert a due process challenge to New York's collateral
post-conviction proceedings, does not state a claim that is
cognizable under federal habeas review.
Section 2254 authorizes a federal court to grant a
writ only where a state holds a petitioner in its custody in
violation of "the Constitution or laws or treaties of the
United States." 28 U.S.C. § 2254(a) (2006). See also
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Howard v.
Walker, 406 F.3d 114, 121 (2d Cir. 2005). As the Supreme
Court has recognized, the Constitution does not compel
states to provide post-conviction proceedings for relief.
Lackawanna Cnty. Dist. Att'y v. Coss, 532 U.S. 394, 402
(2001) (citing Pennsylvania v. Finley, 481 U.S. 551, 557
(1987)). A majority of our sister Circuits have accordingly
concluded that errors in state post-conviction proceedings
do not provide a basis for redress under § 2254. See
Lawrence v. Branker, 517 F.3d 700, 717 (4th Cir.), cert.
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denied, 129 S. Ct. 162 (2008); Bell-Bey v. Roper, 499 F.3d
752, 756 (8th Cir. 2007), cert. denied, 553 U.S. 1035
(2008); Lambert v. Blackwell, 387 F.3d 210, 247 (3d Cir.
2004), cert. denied, 544 U.S. 1063 (2005); Trevino v.
Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527
U.S. 1056 (1999); Sellers v. Ward, 135 F.3d 1333, 1339 (10th
Cir.), cert. denied, 595 U.S. 1024 (1998); Ortiz v. Stewart,
149 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S.
1123 (1999); Spradley v. Dugger, 825 F.2d 1566, 1568 (11th
Cir. 1987) (per curiam); Kirby v. Dutton, 794 F.2d 245, 247
(6th Cir. 1986). 5
We agree, and hold that alleged errors in a post-
conviction proceeding are not grounds for § 2254 review
5
The First and Seventh Circuits have rejected a per se
rule that federal habeas review does not extend to claims arising
from state post-conviction proceedings. See Montgomery v. Meloy,
90 F.3d 1200, 1206 (7th Cir.) (per curiam) (noting that errors in
state collateral review are not viable claims for federal habeas
corpus relief "[u]nless state collateral review violates some
independent constitutional right, such as the Equal Protection
Clause" (citing Lane v. Brown, 372 U.S. 477, 484-85 (1963))),
cert. denied, 519 U.S. 907 (1996); Dickerson v. Walsh, 750 F.2d
150, 150-53 (1st Cir. 1984) (adjudicating capital defendant's
Equal Protection claim because "[t]he fact that a petitioner's
underlying claim can only be addressed in state court does not
give a state the license to administer its laws in an
unconstitutional fashion.").
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because federal law does not require states to provide a
post-conviction mechanism for seeking relief. Word's claim
of a procedural right to a state post-conviction proceeding
does not implicate federal law. See Lawrence, 517 F.3d at
716-17 (holding that petitioner's due process claims
regarding state post-conviction proceeding are not
cognizable under § 2254); cf. Bell-Bey, 499 F.3d at 756
(holding that petitioner's claim that state applied wrong
legal standard in post-conviction proceeding is not
constitutional error cognizable under § 2254).
Because petitioner does not raise a claim
cognizable under § 2254 habeas review, we conclude that she
is not entitled to habeas relief.
CONCLUSION
Accordingly, Word's motion for leave to file a
successive petition is DENIED.
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