Coe v. Thurman

• Decision Date: 05 November 1990
• Docket Number: No. 90-55128,90-55128
• Citation: 922 F.2d 528
• Parties: Donald O. COE, Petitioner-Appellant, v. Otis THURMAN, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 528

922 F.2d 528

Donald O. COE, Petitioner-Appellant, v. Otis THURMAN, Warden, Respondent-Appellee.

No. 90-55128.

United States Court of Appeals Ninth Circuit.

Submitted November 5, 1990. ^*

Decided Dec. 28, 1990.

Supplemental Opinion Filed

Feb. 15, 1991.

Donald O. Coe, Chino, Cal., pro se.

Donald F. Roeschke, Deputy Atty. Gen. of California, Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before NELSON and REINHARDT, Circuit Judges, and TANNER, District Judge. ^**

DOROTHY W. NELSON, Circuit Judge:

Donald Coe, a California state prisoner, appeals the district court's denial of his petition for a writ of habeas corpus. Coe claims that he has been denied due process of law by the failure of the California Court of Appeal to review his conviction in a timely and effective manner. He also claims that he has been denied effective assistance of counsel. We agree that the excessive delay in this case has violated his right to due process, and we therefore remand to the district court with instructions for it to enter an order directing the California Court of Appeal to hear his appeal within 90 days or release him.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 1987, Donald Coe was convicted in a jury trial of one count of conspiracy and nine counts of burglary and sentenced to a ten-year prison term. On March 5, 1987, he filed a timely Notice of Appeal in the California Court of Appeal, Second District. Appellate counsel John Rodriguez was appointed two weeks later. ¹ The delay that is the issue in this case then commenced because of the unavailability of the trial transcript. Continued delay caused by general court backlog and exacerbated by court reporters' involvement in the McMartin preschool molestation case led the Clerk's Office of the Court of Appeal to place the Court Reporter on the late list on August 25 and to begin to monitor the situation for progress. On April 6, 1988, the Court Reporter finally filed the notice of completion of the transcript, and on April 22, the record on appeal was filed with the Court of Appeal.

Rodriguez filed appellant's opening brief on September 16; four days later, he filed for augmentation of the record and leave to file a supplemental brief. The augmentation was not completed until October 6, 1989, over a year later. At the time appellant's reply brief in this court was filed on May 16, 1990, over three years after his Notice of Appeal was originally filed, co-appellants had still not filed their opening briefs in the California Court of Appeal, and the government was waiting for those before it filed.

While waiting for his appeal to be heard, Coe has filed a number of pro se motions. He first asked the California Court of Appeal to remove court-appointed counsel Rodriguez. When this motion was denied on January 22, 1988, Coe appealed to the California Supreme Court in March, again seeking removal of Rodriguez and also asking the court to order the trial court reporter to produce the record. This motion was also denied on June 1, but by that time the record had been produced.

Still frustrated by lack of action on his appeal, Coe filed for a writ of habeas corpus in the California Supreme Court, claiming inordinate delay and ineffective assistance of counsel. This was denied on May 23, 1989. Coe then filed for a writ in federal district court, making the same two

claims. The district court denied the writ on November 11, 1989. Coe, still operating pro se, has appealed this last denial of the writ.

II. STANDARD OF REVIEW

The denial of habeas corpus is reviewed de novo; however, district court findings of fact relevant to the denial are reviewed under a clearly erroneous standard. Norris v. Risley, 878 F.2d 1178 (9th Cir.1989).

III. DENIAL OF DUE PROCESS

A. Delay as Due Process Violation

Where a state guarantees the right to a direct appeal, as California does, the state is required to make that appeal satisfy the Due Process Clause. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). While the Sixth Amendment guarantees the accused a speedy trial, excessive delay in the appellate process may also rise to the level of a due process violation. United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.1990). See also Burkett v. Cunningham, 826 F.2d 1208, 1221 (3rd Cir.1987); DeLancy v. Caldwell, 741 F.2d 1246, 1247 (10th Cir.1984); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir.1980), cert. denied sub nom. Rheuark v. Dallas County, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981).

The state argues that even if excessive delay does violate Coe's due process rights, he cannot raise that issue here. Since his criminal appeal is still pending in the state courts, he has not exhausted his state remedies. The state cites the alluring language in Sherwood v. Tomkins, 716 F.2d 632 (9th Cir.1983), on this point: "When ... an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has been finally settled in the state courts." Id. at 634. The government argues that the fit is perfect: not only is the state criminal conviction pending, but the challenged issues have been settled by the California Supreme Court. The reason for such a rule is that "even if the federal constitutional question raised by the habeas corpus petitioner cannot be resolved in a pending state appeal, that appeal may result in the reversal of the petitioner's conviction on some other ground, thereby mooting the federal question." Id. (citing Davidson v. Klinger, 411 F.2d 746, 747 (9th Cir.1969)); see also Daniels v. Nelson, 415 F.2d 323 (9th Cir.), cert. denied, 396 U.S. 994, 90 S.Ct. 494, 24 L.Ed.2d 459 (1969).

Our inquiry, however, is not terminated. As the habeas statute itself reminds us: if "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner," exhaustion is not required. 28 U.S.C. Sec. 2254(b). The state argues that the state corrective procedure is the California Court of Appeal, which will hear the case. Petitioner counters that delay cases render the state processes ineffective because the corrective procedure never occurs.

The Ninth Circuit has not entertained habeas petitions in which prisoners have claimed that excessive appellate delays have violated their due process rights. If, however, we travel east to the Second Circuit, in whose bailiwick are the overcrowded prisons and backlogged calendars of the state of New York, we discover substantial caselaw on the delay issue.

The Second Circuit and federal district courts in the Southern and Eastern Districts of New York have all agreed that when petitioners' federal habeas claims concern delay, to send them back to the state courts on an exhaustion rationale is a risible solution. In fact, "it would be meaningless to insist that petitioner exhaust his state remedies when the essence of his due process claim arises directly out of his inability to do so." Wheeler v. Kelly, 639 F.Supp. 1374, 1378 (E.D.N.Y.1986), aff'd, 811 F.2d 133 (2nd Cir.1987). As a result, those courts have heard delay claims on the merits. See, e.g., Simmons v. Reynolds, 898 F.2d 865 (2nd Cir.1990); Brooks v. Jones, 875 F.2d 30 (2nd Cir.1989); Wheeler ; Geames v. Henderson, 725 F.Supp. 681 (E.D.N.Y.1989). Other circuits have done the same. See, e.g., Burkett; Rheuark. ²

In deciding this issue for the first time in this circuit, we now hold that since excessive

delay in obtaining an appeal may constitute a due process violation, a prisoner need not fully exhaust his state remedies if the root of his complaint is his inability to do so. We now assess petitioner's claim to see if this particular delay violated due process.

B. Barker Factors

In analyzing delay claims on the merits, courts have routinely relied on the four factors laid out by Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Although the claim in Barker was that a speedy trial, not appeal, was denied, because the Supreme Court has never enunciated factors to be considered in weighing appellate delay claims, lower courts have simply transposed the delayed trial factors. See, e.g., Antoine, 906 F.2d at 1382; Simmons, 898 F.2d at 868; Burkett, 826 F.2d at 1225. It is important to note that Barker emphasized, "We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate." Id. at 521, 92 S.Ct. at 2187. In other words, the Court could "find no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months." Id. at 523, 92 S.Ct. at 2188. Instead of setting a rigid time limit, the court offered the following four factors for consideration: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Id. at 530, 92 S.Ct. at 2192. We now proceed through an examination of those factors.

1. Length of Delay

In the present case Coe filed his Notice of Appeal on March 5, 1987. This case was submitted to us three years and eight months later, and he will have to wait at least a few more months before his state appeal is ultimately heard. By the time the case is decided, the delay could easily extend to four years. This length of time is comparable to cases in which the Second Circuit has found due process violations. In Wheeler over three years elapsed between the appointment of appellate counsel and his removal and replacement by effective counsel to prosecute the appeal; in Simmons the lawyer was inactive for five years; in Geames the delay was over three and a half years; Mathis had a six-year delay; and in Elcock v. Henderson, 902 F.2d 219...