Dozie v. Cady, Misc. No. 861.

Citation430 F.2d 637
Decision Date11 June 1970
Docket NumberMisc. No. 861.
PartiesWillie DOZIE, Petitioner, v. Elmer CADY, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Willie Dozie, pro se.

William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.

Before KILEY, KERNER and PELL, Circuit Judges.

PER CURIAM.

Petitioner was convicted of armed robbery in a Wisconsin state court on October 9, 1968. The Wisconsin Supreme Court appointed petitioner's trial attorney to represent petitioner in post-conviction proceedings. On January 6, 1969, the attorney procured a writ of error from the Wisconsin Supreme Court to review the conviction. In June 1969 the trial attorney was relieved of his duties (for reasons which are unclear on this record), and a second attorney was appointed. As of petitioner's most recent correspondence (April 27, 1970), his attorney had not filed a brief in the Wisconsin Supreme Court. Petitioner alleges the Wisconsin Supreme Court will not accept a pro se brief from him because he is represented by counsel.

Without holding an evidentiary hearing, the U.S. District Court for the Eastern District of Wisconsin denied petitioner's pro se application for a writ of habeas corpus and for a certificate of probable cause because of failure to exhaust state remedies, citing petitioner's case pending before the Wisconsin Supreme Court.

Petitioner's allegations of error in his trial present a strong case for review. He claims that an improper identification procedure (conducted more than a year after United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) plus significant discrepancies between his physical characteristics and those of the suspect described by the eyewitnesses are cause for reversal of his conviction.

While federal courts usually wait for the completion of state appeal proceedings before hearing habeas corpus petitions, there are exceptions. The U.S. Supreme Court said in Bartone v. United States, 375 U.S. 52, 54, 84 S.Ct. 21, 22, 11 L.Ed.2d 11 (1963): "Where state procedural snarls or obstacles preclude an effective state remedy against unconstitutional convictions, federal courts have no other choice but to grant relief in the collateral proceeding."

The leading case is Smith v. Kansas, 356 F.2d 654 (10th Cir. 1966), where petitioner was subjected to a one-year delay between the filing of his petition for post-conviction relief and the entry of an appealable order. The court said: "We have recognized that...

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  • Doescher v. Estelle
    • United States
    • U.S. District Court — Northern District of Texas
    • August 10, 1978
    ...inordinate delays in processing his appeals the federal courts must determine whether those delays were justifiable. Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (delay of 17 months in processing appeal); United States Ex Rel. Smith v. Twomey, 486 F.2d 736 (7th Cir. 1973) (petition dismissed......
  • People v. Hernandez
    • United States
    • California Superior Court
    • January 10, 1985
    ...v. Dominico (1974) 1 Mass.App. 693, 306 N.E.2d 835; Commonwealth v. Swenson (1975) 368 Mass. 268, 331 N.E.2d 893; Dozie v. Cady (7th Cir.1970) 430 F.2d 637; Layne v. Gunter (1st Cir.1977) 559 F.2d 850; Smith v. Kansas (10th Cir.1966) 356 F.2d 654; Codispoti v. Howard (3d Cir.1978) 589 F.2d ......
  • Harris v. Champion
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 26, 1994
    ...for district court to excuse exhaustion if fifteen-month delay in preparing transcript could not be justified); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir.1970) (remanding for district court to excuse exhaustion if seventeen-month delay in briefing direct criminal appeal could not be justifi......
  • People v. Blair
    • United States
    • California Supreme Court
    • July 28, 2005
    ...1445; Coe v. Thurman (9th Cir.1990) 922 F.2d 528, 530-531; United States v. Antoine (9th Cir.1990) 906 F.2d 1379, 1382; Dozie v. Cady (7th Cir.1970) 430 F.2d 637, 638; Snyder v. Kelly (W.D.N.Y.1991) 769 F.Supp. 108, 111, affd. Snyder v. Kelly (2d Cir.1992) 972 F.2d 1328.) As we have explain......
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