Wheeler v. Kelly, 611

• Decision Date: 09 February 1987
• Docket Number: No. 611,D,611
• Citation: 811 F.2d 133
• Parties: Randy WHEELER, Petitioner-Appellant, v. Walter KELLY, Superintendent of Attica Correctional Facility; Robert Abrams, Attorney General of the State of New York; and Denis Dillon, District Attorney of the County of Nassau, Respondents-Appellees. ocket 86-2295.
• Court: U.S. Court of Appeals — Second Circuit

Page 133

811 F.2d 133

Randy WHEELER, Petitioner-Appellant, v. Walter KELLY, Superintendent of Attica Correctional

Facility; Robert Abrams, Attorney General of the State of

New York; and Denis Dillon, District Attorney of the County

of Nassau, Respondents-Appellees.

No. 611, Docket 86-2295.

United States Court of Appeals, Second Circuit.

Argued Jan. 9, 1987.

Decided Feb. 9, 1987.

E. Thomas Boyle, P.C., Smithtown, N.Y., for petitioner-appellant.

Bruce E. Whitney, Mineola, N.Y., Asst. Dist. Atty., Nassau County (Denis Dillon, Dist. Atty., Nassau County, Anthony J. Girese, Asst. Dist. Atty., of counsel), for respondents-appellees.

Before FEINBERG, Chief Judge, TIMBERS and PIERCE, Circuit Judges.

FEINBERG, Chief Judge:

In this unusual case, petitioner Randy Wheeler, an incarcerated state prisoner, appeals from an order of the United States District Court for the Eastern District of New York, Leonard D. Wexler, J. The order granted Wheeler's petition for a writ of habeas corpus because of a five-year delay in the processing of his appeal in the state courts and directed that he be retried unless the Appellate Division of the New York State Supreme Court, Second Department, decided Wheeler's then pending appeal within two and one-half months. Appellant claims that Judge Wexler should have ordered a new trial without deferring to the state court to consider the appeal. Respondents Superintendent of Attica Correctional Facility, the Attorney General of the State of New York and the District Attorney of Nassau County do not appeal from the portion of Judge Wexler's order that granted the writ. Accordingly, the only issue before us is whether the district court abused its discretion by giving the Appellate Division an opportunity to decide the appeal. For reasons set forth below, we affirm.

I.

Since the issue before us is narrow, we need not set forth in great detail the facts or the governing law that led Judge Wexler to grant the writ of habeas corpus because of the failure of the state courts to decide Wheeler's appeal of his criminal conviction. For a fuller statement, we refer the reader to Judge Wexler's thorough opinion, reported at 639 F.Supp. 1374 (E.D.N.Y.1986). It is enough for our purposes to state the following. In April 1981, appellant was sentenced to an indeterminate term of 20 years to life after conviction by a jury of felony murder. Shortly thereafter, the Appellate Division assigned counsel to him. However, despite much prodding from appellant for over three years and two letters from the Appellate Division, assigned counsel did nothing. In early 1985, as a result of appellant's complaints, the Appellate Division assigned new counsel to appellant. That counsel was unable to obtain the transcript of appellant's trial from former counsel and for about a year did not do much either. Finally, in January 1986, Wheeler filed in the Eastern District the habeas corpus petition that is the subject of this appeal. This led to appointment of new counsel for Wheeler to represent him on the habeas petition, and a hearing before Judge Wexler in May 1986, at which five witnesses testified, including Wheeler's two state-appointed lawyers and the then Acting Chief Clerk of the Appellate Division.

While the habeas petition was pending before Judge Wexler, Wheeler's second state-appointed counsel succeeded in obtaining a copy of the transcript of appellant's trial and filed his brief in the Appellate Division on the appeal from appellant's conviction. In June 1986, that appeal was argued in the Appellate Division, and that court granted Wheeler's request to file a pro se supplemental brief thereafter.

At about the same time, Judge Wexler issued his opinion in the federal habeas case. He described at length the inaction of Wheeler's first state-appointed counsel and the lesser, but still considerable, period of delay before his second state-appointed counsel perfected the state court appeal and filed his brief, the Appellate Division's failure to monitor the inaction of assigned counsel and the reasons for such lack of supervision, and the policy of the District Attorney of Nassau County of not moving to dismiss an appeal for lack of prosecution by defendants who are incarcerated. Citing such cases as United States v. Johnson, 732 F.2d 379 (4th Cir.), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984) and Rheuark v. Shaw, 628 F.2d 297, 303 & n. 8 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981), Judge Wexler concluded, after applying what he deemed to be the analogous criteria of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that the post-conviction delay in the state appellate process denied Wheeler due process. Cf. Roberson v. Connecticut, 501 F.2d 305 (2d Cir.1974); Ralls v. Manson, 503 F.2d 491 (2d Cir.1974). However, instead of granting outright the relief appellant now seeks--a new trial--the judge, relying on considerations of comity, directed appellees to retry appellant unless the Appellate Division decided his state appeal by October 7, 1986. On September 22, 1986, the Appellate Division affirmed Wheeler's conviction, People v. Wheeler, 123 A.D.2d 411, 506 N.Y.S.2d 474 (2d Dept.1986), and on November 25 Chief Judge Wachtler denied leave to appeal to the New York Court of Appeals, 68 N.Y.2d 1005 (1986). Meanwhile, Judge Wexler granted...