Perez v. Lee

Full title: REYNALDO PEREZ, Petitioner-Appellant, v. SUPERINTENDENT WILLIAM LEE, GREEN…

Court: UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Date published: Jun 20, 2019

18-573-cv (2d Cir. Jun. 20, 2019)

Opinion

18-573-cv

06-20-2019

REYNALDO PEREZ, Petitioner-Appellant, v. SUPERINTENDENT WILLIAM LEE, GREEN HAVEN CORRECTIONAL FACILITY, Respondent-Appellee.

FOR PETITIONER-APPELLANT: JOHN S. WALLENSTEIN, Law Office of John S. Wallenstein, Garden City, NY. FOR RESPONDENT-APPELLEE: DAVID A. SLOTT, Assistant District Attorney, (Noah J. Chamoy and Nancy D. Killian, Assistant District Attorneys, on the brief), for Darcel D. Clark, District Attorney, Bronx County, Bronx, NY.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court

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 database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not 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 Foley Square, in the City of New York, on the 20^th day of June, two thousand nineteen. PRESENT: JOHN M. WALKER, JR., JOSÉ A. CABRANES, PETER W. HALL, Circuit Judges.

FOR PETITIONER-APPELLANT:

JOHN S. WALLENSTEIN, Law Office of John S. Wallenstein, Garden City, NY.

FOR RESPONDENT-APPELLEE:

DAVID A. SLOTT, Assistant District Attorney, (Noah J. Chamoy and Nancy D. Killian, Assistant District Attorneys, on the brief), for Darcel D. Clark, District Attorney, Bronx County, Bronx, NY.

Appeal from the February 2, 2018 judgment of the United States District Court for the Southern District of New York (J. Paul Oetken, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the cause be and hereby is REMANDED.

Petitioner Reynaldo Perez ("Perez") appeals the judgment of the District Court denying his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Perez was convicted, following a jury trial, in Bronx County Court in the State of New York of murder in the second degree and manslaughter in the first degree. He contends that he was deprived of his first direct appeal as of right due to the ineffective assistance of his appellate counsel. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We remand for reconsideration of the application of Perez's counsel to amplify the record, and we leave to the discretion of the District Court the extent to which, in its view, the record can be usefully expanded to provide an opportunity to understand the full context of the many years of state and federal proceedings. In directing a remand of the cause, we intimate no view on the merits of any of the claims asserted herein.

Attorney Wallenstein, a member of the Criminal Justice Act ("CJA") panel of the Second Circuit and of the Southern District of New York, has agreed to continue representation of Mr. Perez on any remand that we may order.

In the interest of judicial economy, any further appeal of this matter shall be assigned to this panel.

The mandate shall issue forthwith.

CONCLUSION

For the foregoing reasons, we REMAND the cause to the District Court for further proceedings consistent with this order.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court