Allen v. Duckworth

• Decision Date: 29 September 1993
• Docket Number: No. 91-3229,91-3229
• Citation: 6 F.3d 458
• Parties: Christopher ALLEN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 458

6 F.3d 458

Christopher ALLEN, Petitioner-Appellant, v. Jack DUCKWORTH, Respondent-Appellee.

No. 91-3229.

United States Court of Appeals Seventh Circuit.

Argued Aug. 3, 1993.

Decided Sept. 29, 1993.

Jerold S. Solovy, C. John Koch, Deirdre E. Connell (argued), Jenner & Block, Chicago, IL, for petitioner-appellant.

David A. Arthur, Deputy Atty. Gen., Thomas D. Quigley (argued), Office of Atty. Gen., Federal Litigation, Indianapolis, IN, for respondent-appellee.

Before BAUER, Chief Judge, and POSNER and MANION, Circuit Judges.

POSNER, Circuit Judge.

In November 1986, in a state court in Indiana, the petitioner was convicted of attempted murder and attempted robbery and sentenced to a total of fifty years in prison. He appealed to the Supreme Court of Indiana. Briefs were filed, and the case taken under submission, in 1988. Years passed with no decision. Finally in 1991 the petitioner filed this action for habeas corpus in federal district court, charging that the delay in resolving his appeal had denied him due process of law. Shortly after he filed his federal action, the state supreme court, in July 1991, almost four and a half years after his conviction, handed down its decision. It affirmed both convictions but lopped ten years off the petitioner's sentence. Allen v. State, 575 N.E.2d 615 (Ind.1991). The district court then denied the petition for habeas corpus on the ground that the decision of the appeal had made the petitioner's claim that the delay in deciding the appeal had denied him due process of law moot.

There is a nice question, unnecessary to decide, whether exhaustion of state remedies is required when a prisoner is complaining about inordinate delay in the state court system. Requiring exhaustion would add another layer of delay--would make the requirement of exhaustion literally exhausting, and might even threaten an infinite regress. It seems a case for invoking the exception to the exhaustion requirement when there are "circumstances rendering [state corrective] process ineffective to protect the rights of the prisoner." 28 U.S.C. Sec. 2254(b). Many cases so hold; illustrative are Harris v. Champion, 938 F.2d 1062, 1068-69 (10th Cir.1991), and Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir.1990). We have taken no position, Lane v. Richards, 957 F.2d 363, 365 (7th Cir.1992), and need not do so today, since if the case was moot the district court lost jurisdiction whether or not the petitioner was excused from seeking a state remedy for the state supreme court's delay.

We can assume, as a number of cases have held, though none in this circuit, e.g., Cody v. Henderson, 936 F.2d 715, 718-19 (2d Cir.1991); Coe v. Thurman, supra, 922 F.2d at 530, that excessive delay in the processing of a criminal defendant's state appeal can be a denial of due process of law. The defendant has no federal constitutional right to an appeal, Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974), but a state is not permitted with one hand to grant such a right and with the other to take it away in an arbitrary fashion, as by denying an indigent a free transcript of the trial, Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956), or preventing a prisoner from filing a timely notice of appeal, Burns v. Ohio, 360 U.S. 252, 257, 79 S.Ct. 1164, 1168, 3 L.Ed.2d 1209 (1959)--or simply refusing to decide an appeal. So at least a number of courts have held, and we would have no occasion in this case to quarrel with them even if we were disposed to disagree, since the petitioner must lose in any event.

This action for habeas corpus is moot if winning it would give the petitioner nothing. It would give him nothing. He is not asking that the district court or this court grant him a new trial because the delay in the decision of his appeal to the state supreme court so impaired the accuracy of the appellate procedure that his conviction is constitutionally infirm. So far as appears, the appellate decision was identical to what it would have been had the state supreme court decided the case four years earlier.

When pressed at argument to tell us what remedy the petitioner could obtain in the district court, given that he does not argue that the delay in the disposition of his appeal reduced the quality of the appellate decision, his able counsel argued that the district court could knock some time off his sentence, as the Third Circuit did for a similarly situated prisoner in Burkett v. Fulcomer, 951 F.2d 1431, 1447-1448 (3d Cir.1991). The theory is not that the delay in the disposition of Allen's appeal somehow resulted in a longer prison sentence--that if the Indiana Supreme Court had decided his appeal sooner it would have lopped off more than ten years from his sentence. The argument is that a sentence reduction would be appropriate compensation for the additional hardships that the petitioner suffered in prison as a result of the delay. It is a little hard to see what those hardships were. The petitioner was not admitted to bail while his appeal was pending, and of course the sentence that the state supreme court eventually upheld was far longer than the period of delay; so there can be no argument that the delay somehow caused or will cause the petitioner to spend more time in prison than if there had been no delay. The argument rather is that because he had a fifty-year sentence he was confined more closely than he would have been under the forty-year sentence eventually held to be his lawful one. This seems a little implausible but we shall accept it for the sake of argument. It simply makes transparent--and counsel acknowledged at argument--that what is being sought is a compensatory remedy. Instead of money, the petitioner seeks compensation in the...