Burkett v. Cunningham
| Decision Date | 31 July 1987 |
| Docket Number | 86-3121,Nos. 86-3074,s. 86-3074 |
| Citation | 826 F.2d 1208 |
| Parties | , 8 Fed.R.Serv.3d 609 Wayne Paul BURKETT, Appellant, v. Richard CUNNINGHAM, Warden, Appellee. |
| Court | U.S. Court of Appeals — Third Circuit |
George E. Schumacher, Joel B. Johnston (argued), Federal Public Defender, Pittsburgh, Pa., for appellant.
Ellen L. Cohen (argued), Blair County Dist., Attorney's Office, Hollidaysburg, Pa., for appellee.
Before SLOVITER, BECKER and GARTH, Circuit Judges.
These two habeas corpus appeals by Wayne Paul Burkett, arising out of three state court convictions, require us to determine whether a federal court, presented with post-conviction delay ranging from excessive to monumental, should not only deem state remedies exhausted, but also grant writs of habeas corpus on account of the delay. Each of the convictions took place in the Blair County, Pennsylvania, Court of Common Pleas, where the problem of delay seems endemic. See infra at 1227 & n. 48.
In No. 86-3074, we confront a delay of two years and four months between conviction and sentencing, plus several additional months of delay during the state appellate process. No. 86-3121 encompasses two separate convictions. In one, we face a three and one-half year delay between conviction and sentencing and a further, ongoing delay (approximately one year and nine months at this writing) in the commencement of the state appellate process because of the tardiness of the Blair County court system both in furnishing an opinion on post-verdict motions and sentencing and in transmitting the trial record to the Pennsylvania Superior Court. In the other, we confront an almost unbelievable situation: Burkett has yet to be sentenced, more than five and one-half years after trial and two years after a federal district court declared that Burkett's right to a speedy trial would be violated if he were not sentenced within 60 days.
As a preliminary procedural matter, we observe that in No. 86-3121 the district court used Federal Rule of Civil Procedure 60(b) to vacate and reenter its previous order of judgment, in effect extending the time for appeal, because Burkett, despite due diligence, did not learn of the entry of judgment until after expiration of the period for requesting an extension of time to appeal. Fed.R.App.P. 4(a)(5). Under the particular circumstances of the case, we hold that the district court had the power to vacate and reenter the final order.
We also must make important threshold legal determinations. First, does the Constitution's Speedy Trial clause apply through the sentencing phase of the prosecution? We conclude that it does. Second, does the Due Process clause protect against delays in appeals as of right? We also conclude that it does. For the reasons that follow, we will affirm the district court's dismissal for want of exhaustion in No. 86-3074. We will reverse the court's dismissal for want of exhaustion in No. 86-3121, and, on those claims concerning the case for which Burkett has been sentenced but his appeal hindered, we will remand for consideration of the merits of Burkett's constitutional claims, including the delay itself. That leaves for consideration the conviction for which Burkett has still not been sentenced for five and one-half years after verdict, two years of which follow the district court's order declaring that the Constitution required sentencing within 60 days, an order predicated on a finding of a speedy trial violation which was not challenged by the county. The violation having been established as law of the case, and reinforced by the continuing delay, and the county having conceded at oral argument that the only appropriate remedy appears to be dismissal, we will remand the case to the district court with instructions to grant the writ unconditionally and discharge Burkett from that conviction.
The factual matrix of these appeals lies in the procedural history of Burkett's criminal cases. That history is extremely involved, and resolution of these appeals requires that we set it forth in detail.
Burkett was arrested on February 7, 1981 and charged in the Blair County Court of Common Pleas with the crimes later detailed in criminal actions Nos. 140 and 141 of 1981 ("140/141"). 1 Six days later, he was charged with the crimes detailed in criminal action No. 161 of 1981 ("161"). 2 On July 22, 1981 the prosecution moved under Pennsylvania Rule of Criminal Procedure 1100(c) to extend the 180-day deadline for commencing trial otherwise required under Rule 1100(a)(2). On October 7, 1981 the court, despite Burkett's objection and motion to dismiss, granted the prosecution's request.
In 140/141, Burkett was convicted on November 17, 1981 of some charges 3 and acquitted of others; 4 a mistrial was declared on the remaining counts when the jury hung. 5 On November 20, 1981, both sides consented to a continuance in 161. On January 20, 1982 Burkett was convicted in 161 on all counts.
Having filed timely post-verdict motions concerning both trials, Burkett was released on bail pending sentencing on February 24, 1982. After 48 days, on April 13, 1982, he was rearrested and charged with the crimes later detailed in criminal action No. 284 of 1982 ("284"). 6 Burkett has been continuously incarcerated since this arrest.
On August 19, 1982 the court ordered the district attorney to show cause why transcripts of Burkett's trials should not be furnished to him at the court's expense. The record reflects no subsequent hearing or order on the matter. It appears that only transcripts for 161 were prepared at that time.
In 284, the prosecution requested and received several Rule 1100 continuances, beginning on October 1, 1982. Burkett filed motions to dismiss for lack of timely prosecution beginning on October 15, 1982. The court denied dismissal and granted further continuances on November 5 and December 29, 1982 and January 4, 1983. On January 28, 1983 Burkett was convicted of all felony and misdemeanor counts by a jury and on January 31, 1983 the court found him guilty of the charged summary offense. Burkett filed timely post-verdict motions.
At least by July 1983, Burkett was requesting trial transcripts of 140/141 and 284. App. 183. Transcripts for 284 were completed and filed in August 1983. The other transcripts were not prepared. No briefing or hearing was scheduled on Burkett's post-verdict motions in any of his cases, and under Pennsylvania law he could not be sentenced until the court had ruled on those motions. 7
On March 12, 1984, Burkett filed a petition for a writ of habeas corpus with the Blair County Court of Common Pleas, challenging his custody in all three cases on the basis of speedy trial and due process violations and because he had still not been sentenced. A hearing on this petition was held in October 1984, after which a briefing schedule was set for 161 and 284. When no ruling was forthcoming on the habeas petition, Burkett filed for relief on similar grounds in the Pennsylvania Superior Court on December 12, 1984. 8 Burkett's brief in 284 was filed on January 23, 1985.
Meanwhile, Burkett had also sought to raise the issue of counsel's ineffectiveness in order to preserve that issue for appeal. 9 He objected to proceeding with a hearing on his post-verdict motions in 284 on January 23, 1985, because his motion concerning ineffectiveness in that action, filed September 6, 1984, had yet to be resolved. The hearing was adjourned, and an ineffectiveness hearing was later scheduled for April 1, 1985. As of March 1985, Burkett's post-verdict motions in 161 and 284 had been briefed but not argued, and no briefing had been scheduled in 140/141 because no transcripts had been filed, even though Burkett had filed yet another motion to compel production of those transcripts on January 14, 1985.
On March 28, 1985 Burkett filed a petition for writ of habeas corpus at W.D.Pa.Civ. No. 85-769, charging that the delay in sentencing in all of his cases violated his rights under the Speedy Trial clause. See App. at 154; Supp.App. at 3. We also construe the petition to allege a due process violation. The magistrate granted in forma pauperis status and ordered an answer on March 29, 1985. Blair County filed a timely answer, to which Burkett filed a response.
The magistrate filed a report and recommendation on May 15, 1985. Finding exhaustion excused because of inordinate delay, he discussed whether Burkett had established a speedy trial violation under the four-part test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972). The magistrate, finding lengthy delay, noted Burkett's repeated requests to be sentenced and attributed no delay to him. The magistrate found prejudice--that the delay had "caused some loss to the petitioner," see infra at 1223 n. 36--and that "it would appear to be a fundamental denial of the constitutionally assured right to a speedy trial to delay ruling on post-trial motions far in excess of three years." Supp.App. 11. He reasoned, however, that "it would appear appropriate to withhold any action," id. at 12, based apparently on an order of the Blair County Court of Common Pleas that a hearing on post-trial motions in 284 be scheduled "for the earliest possible date consistent with the calendar of this Court." The magistrate therefore recommended with respect to all of Burkett's cases that the writ be denied "unless the Court of Common Pleas fails to dispose of the post-trial motions and impose any appropriate sentence within sixty (60) days." Id.
The district court granted the parties ten days for the filing of objections to the report and recommendation of the magistrate, but no objections were filed and no extensions of time were sought. The district court...
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