938 F.2d 1062 (10th Cir. 1991), 90-5223, Harris v. Champion

Docket Nº:90-5223, 90-5224.
Citation:938 F.2d 1062
Party Name:Anthony Jerome HARRIS, Plaintiff-Appellant, v. Ron CHAMPION, Warden; Susan Brimmer Loving [*], Attorney General for the State of Oklahoma, Defendants-Appellees.
Case Date:June 17, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1062

938 F.2d 1062 (10th Cir. 1991)

Anthony Jerome HARRIS, Plaintiff-Appellant,


Ron CHAMPION, Warden; Susan Brimmer Loving [*],

Attorney General for the State of Oklahoma,


Nos. 90-5223, 90-5224.

United States Court of Appeals, Tenth Circuit

June 17, 1991

Order Granting Rehearing and Amending Opinion; Rehearing En

Banc Denied July 19, 1991.

Page 1063

Anthony Jerome Harris, pro se.

Susan Brimmer Loving, Atty. Gen. of Okl., Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, Okl., for defendants-appellees.

Before McKAY, SEYMOUR and EBEL, Circuit Judges.

Page 1064

EBEL, Circuit Judge.


Petitioner was convicted in Oklahoma state court of the related crimes of forcible sodomy and assault and battery with a dangerous weapon. Petitioner was consecutively sentenced to fifteen years on the sodomy conviction and five years on the assault and battery conviction. Petitioner alleges that upon being sentenced on September 29, 1988, he invoked his right to an appeal and requested that counsel be appointed for that appeal. For reasons that are unclear, the appeal was not immediately perfected. Eventually, on May 11, 1989, the Oklahoma Appellate Public Defender filed an Application for Late Appeal. That application was granted on May 18, 1989, on the grounds that petitioner was denied a direct state appeal "through no fault of his own." Almost one year later, in response to an inquiry about his appeal, petitioner received a letter dated April 16, 1990, from the Oklahoma Appellate Public Defender's Office. In relevant part the letter read:

You will receive a copy of anything this office files in the Court of Criminal Appeals in your behalf. So far there has been a petition and an extension filed. There will be nothing else filed except extensions until we are able to prepare your brief or the court issues a final extension.... It will be at least 3 years before we are able to file your brief with the court.

On May 22, 1990, while his state appeal was still pending, petitioner filed a habeas corpus petition in the United States District Court for the Northern District of Oklahoma, raising a number of alleged constitutional deficiencies in his trial and sentence and also alleging constitutional violations of due process, equal protection, and his right to counsel because of the delays encountered in getting the Oklahoma Appellate Public Defender to prepare his brief on appeal. The standard habeas petition form used by petitioner asked him to explain any failure to raise his issues on direct appeal and cautioned him about the requirements of exhaustion. In explaining his situation, petitioner referred the district court to two attachments. One attachment was a photocopy of the above-quoted letter. The other attachment was a hand-written explanation as to why petitioner should be excused from the requirements of exhaustion. The petitioner claimed that his direct state "appeal is futile since petitioner will [sic] discharge before his appeal can even be heard." The state moved to dismiss the habeas petition for lack of exhaustion. The Magistrate recommended that the motion to dismiss be granted, stating that

[r]espondents move to dismiss the [habeas petition] alleging Harris has not yet exhausted his state remedies. Specifically, Respondents point out that Petitioner is currently pursuing a direct appeal....

Where a state prisoner has pending an appeal in the state court ..., comity requires a federal court abstain from using its federal habeas corpus jurisdiction.

The district court adopted the Magistrate's recommendation and dismissed the petition without prejudice. 1 This appeal follows.


The district court was correct that before a petitioner may proceed in federal court under 28 U.S.C. Sec. 2254, he or she must first exhaust viable state remedies. The statute reads:

An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that 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.

28 U.S.C. Sec. 2254(b) (emphasis added).

We are concerned here with the exceptions to the exhaustion requirement. Many courts have recognized that "a state convict is relieved of his obligation to exhaust his state remedies whenever there has been excessive and unjustified delay in the disposition of his state direct or postconviction

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remedy proceeding." D. Wilkes, Federal and State Postconviction Remedies and Relief Secs. 8-19, at 186 (1987). See Coe v. Thurman, 922 F.2d 528, 531 (9th Cir.1990); Elcock v. Henderson, 902 F.2d 219, 220 (2d Cir.1990); Burkett v. Cunningham, 826 F.2d 1208, 1221 (3d Cir.1987); Okot v. Callahan, 788 F.2d 631, 633 (9th Cir.1986); Cook v. Florida Parole and Probation Comm'n, 749 F.2d 678, 680 (11th Cir.1985); Pool v. Wyrick, 703 F.2d 1064, 1066 (8th Cir.1983); Shelton v. Heard, 696 F.2d 1127, 1128-29 (5th Cir.1983); Dozie v. Cady, 430 F.2d 637, 638 (7th Cir.1970). Cf. Rheuark v. Shaw, 628 F.2d 297, 302-03 (5th Cir.1980), cert. denied sub nom. Rheuark v. Dallas County Texas, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981) (in a Sec. 1983 action "a delay of nearly two years ... exceeds the limits of due process").

Indeed, this court has long recognized that "inordinate, excessive and inexcusable delay" in a state appeal process may excuse the need of a federal habeas petitioner to exhaust state remedies. See Jones v. Crouse, 360 F.2d 157, 158 (10th Cir.1966). See also Way v. Crouse, 421 F.2d 145, 146 (10th Cir.1970) ("an inordinate, excessive and inexcusable delay may very well amount to a denial of due process cognizable in federal court"); Smith v. Kansas, 356 F.2d 654, 655 (10th Cir.1966), cert. denied, 389 U.S. 871, 88 S.Ct. 154, 19 L.Ed.2d 151 (1967) (delays in processing defendant's post-conviction motions for relief in the state courts deprived him of the "swift and imperative remedy" to which he was constitutionally entitled, and hence the federal district court was ordered to consider the merits of petitioner's claim for federal habeas relief). Cf. DeLancy v. Caldwell, 741 F.2d 1246, 1247 (10th Cir.1984) (holding in the context of a Sec. 1983 claim that "excessive delay in furnishing a ... trial transcript to be used on appeal ... can amount to a deprivation of due process").

Respondents assert that petitioner should not be excused from the requirements of exhaustion because "[t]he only conceivable delay in the Petitioner's appeal was due to Petitioner's counsel's present requests for extensions which have been granted." In only a syllogistic sense is this true. The letter sent to petitioner by the Oklahoma Appellate Public Defender's Office, which is uncontroverted in this record, suggests that the delay in preparing petitioner's brief on appeal is caused by the inability of that office to address petitioner's case in a timely fashion. It would not, under those circumstances, be accurate to attribute the delay to this indigent petitioner. Instead, the record suggests that this is a delay forced upon an unwilling petitioner by reason of his indigency. Furthermore, the record suggests that this delay has been endorsed and made possible by the willingness of the Oklahoma Court of Criminal Appeals to grant the lengthy continuances requested by the Appellate Public Defender's Office. If, in fact, the delay has been caused by the Oklahoma Appellate Public Defender's Office and authorized by the Oklahoma Court of Criminal Appeals, we would have no difficulty in attributing such delays to the state, particularly if the petitioner has not personally caused the delays nor condoned them: "Failures of court-appointed counsel and delays by the court are attributable to the state." Coe v. Thurman, 922 F.2d at 531. Cf. Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) ("[T]he ultimate responsibility [for overcrowded courts] must rest with the government rather than with the defendant.").

Competent court-appointed counsel is a constitutional right for all indigent criminal defendants in a first appeal provided of right by the state. See Evitts v. Lucey, 469 U.S. 387, 393-94, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821 (1985); Douglas v. California, 372 U.S. 353, 357-58, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963). There is nothing in the record before us that would justify a delay of approximately four years to file an appellate brief for this petitioner from the date his case was docketed in the Oklahoma Court of Criminal Appeals. 2

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The Oklahoma Appellate Public Defender's Office has offered no justification other than its own scheduling difficulties. While we are sympathetic with the heavy demands put on that office, that explanation is insufficient to justify the continued withholding of federal relief until the petitioner has exhausted inordinately-delayed state remedies. We must keep in mind that

[t]he requirement to exhaust state remedies is not a jurisdictional limitation on the federal courts. Rather it is a matter of comity between the federal and state courts. The forbearance of the federal courts is based upon the assumption that the state remedies available to petitioners are adequate and effective to vindicate federal constitutional rights. When those state procedures become ineffective or inadequate, the foundation of the exhaustion requirement is undercut and the federal courts may take action.

Shelton, 696 F.2d at 1128 (citations omitted) (citing Rose v. Lundy, 455 U.S. 509, 516 n. 7, 102 S.Ct. 1198, 1202 n. 7, 71 L.Ed.2d 379 (1982), and Fay v. Noia, 372 U.S. 391, 433-34, 83 S.Ct. 822, 845-46, 9 L.Ed.2d 837 (1963)). It is the duty of the state in this case to provide effective and adequate counsel that will...

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