942 F.2d 1494 (10th Cir. 1991), 91-5013, Hill v. Reynolds

Docket Nº:91-5013.
Citation:942 F.2d 1494
Party Name:Coy Arthur HILL, Petitioner-Appellant, v. Dan REYNOLDS; Attorney General, State of Oklahoma, Respondents-Appellees.
Case Date:August 23, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1494

942 F.2d 1494 (10th Cir. 1991)

Coy Arthur HILL, Petitioner-Appellant,

v.

Dan REYNOLDS; Attorney General, State of Oklahoma,

Respondents-Appellees.

No. 91-5013.

United States Court of Appeals, Tenth Circuit

August 23, 1991

        Coy Arthur Hill, pro se.

        Robert H. Henry, Atty. Gen. of Oklahoma, Sandra D. Howard and Alecia A. George, Asst. Attys. Gen., on the brief, for respondents-appellees.

        Before ANDERSON, TACHA and BRORBY, Circuit Judges.

        TACHA, Circuit Judge.

        Petitioner Coy Arthur Hill seeks our review of the district court's dismissal of his habeas corpus petition for failure to exhaust state remedies. We reverse and remand

Page 1495

for a consolidated hearing with two recent cases raising similar issues. 1

        Hill timely filed a notice of appeal from his conviction in March 1988 and the state court assigned him counsel to perfect his appeal. Hill's state-appointed counsel filed a petition in error in September 1988. In November of 1988, Hill's counsel requested and received the first of seven extensions to file the brief in Hill's criminal appeal. The Appellate Public Defender handling Hill's case premised these extensions on "an extremely heavy caseload" and consequent inability to review the record in Hill's case. In a letter responding to one of Hill's letters, counsel indicated he had completed briefs in several cases docketed after Hill's because the court had ordered him to do so. In December 1990, two years and nine months after the notice of appeal was filed and counsel appointed, the state Appellate Public Defender filed Hill's appellate brief.

        The record indicates that during this period, Hill wrote several letters to the Appellate Public Defender's Office seeking to expedite his state appeal. These letters evince Hill's frustration with that office's inaction and unresponsiveness. Hill included with one of these letters a pro se appellate brief and a request that counsel withdraw so Hill could pursue his own appeal.

        Hill contends the state's delay in adjudicating his appeal constitutes a violation of his right to due process and excuses him from the requirement that he exhaust his state remedies before seeking federal habeas corpus relief. The district court rejected this argument, apparently holding the delay in filing Hill's brief was due to a strategy decision by Hill's counsel and was not inherent in the appeals process. The district judge held delay in itself does not constitute a violation of due process rights. We reach Hill's appeal of the dismissal of his federal habeas petition three years and four months after he filed his notice of appeal in the Oklahoma Court of Criminal Appeals. Hill's state court appeal is still pending.

        We review the district court's factual findings for clear error. Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting Fed.R.Civ.P. 52(a)). We review the court's legal conclusions de novo. In re Ruti-Sweetwater, 836 F.2d 1263, 1266 (10th Cir.1988).

Prefiling Delay

        This case is governed, in part, by our recent decision in Harris v. Champion, 938 F.2d 1062 (10th Cir.1991). In that case petitioner Harris sought to appeal his state criminal conviction in the northern district of Oklahoma. Approximately one year after his application for late appeal was granted, Harris received a letter from the Appellate Public Defender notifying him his brief would not be filed for at least three years. Harris, at 1064. Shortly after receiving this letter, Harris filed a petition for federal habeas corpus alleging the Appellate Public Defender's delay...

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