Burkett v. Fulcomer

Decision Date20 December 1991
Docket NumberNo. 91-3040,K-8595,91-3040
Citation951 F.2d 1431
PartiesWayne Paul BURKETT,v. Thomas A. FULCOMER, Superintendent, et al., Answering Respondent Blair County District Attorney. Wayne Paul Burkett, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Thomas S. White (argued), Dennis M. Stefan, Law Clerk, Office of Federal Public Defender, Pittsburgh, Pa., for appellant.

William J. Haberstroh, David C. Gorman (argued), Office of Dist. Atty., Hollidaysburg, Pa., for appellees.

Before MANSMANN and ALITO, Circuit Judges, and NEALON, District Judge. *

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Once again the saturated dockets and the apparent strain on judicial resources in Blair County, Pennsylvania, give cause for us to examine whether a state prisoner's constitutional rights to a speedy trial and due process of law have been violated by delays in post-conviction proceedings. 1 Applying the test set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to evaluate whether delays in the criminal justice system rise to the level of a constitutional deprivation, we find that the petitioner has established both Sixth Amendment and due process violations. We will, therefore, remand the matter to the district court with instructions to grant the writ conditionally, imposing the remedy we have fashioned to alleviate the specific prejudice suffered.

I.

The procedural posture of this case is of paramount concern, and in fact, we have previously chronicled the travails of the petitioner, Wayne Paul Burkett. See Burkett v. Cunningham, 826 F.2d 1208 (3d Cir.1987) (Burkett I ).

Burkett was arrested on April 13, 1982 for the offenses of burglary, criminal attempt (rape), terroristic threats, simple assault, recklessly endangering another person and harassment, and was indicted at Criminal Action No. 284, Blair County, Pennsylvania. Upon his arrest, Burkett was incarcerated at the Blair County Prison.

On October 1, 1982, the District Attorney's Office of Blair County requested a continuance of the trial on these charges, which was granted. Burkett's motion to dismiss for lack of timely prosecution, filed on October 15, 1982, was denied. A jury trial eventually commenced before the Honorable Thomas G. Peoples, Jr. on January 26, 1983. On January 28, 1983, the jury convicted Burkett of the felonies and misdemeanors charged. Three days later Judge Peoples found him guilty of the summary offense of harassment.

Several days later, in February of 1983, Burkett timely filed post-trial motions, but all post-trial activity came to a standstill. 2 Therefore, on March 12, 1984, more than one year after conviction, Burkett's counsel filed a petition for writ of habeas corpus with the Court of Common Pleas of Blair County, challenging Burkett's custody and alleging that the trial court's failure to sentence Burkett violated his speedy trial and due process rights.

Burkett then began an active course of correspondence with his attorney and court personnel, expressing dismay over the delay in disposition of his post-trial motions. To punctuate his dissatisfaction, on September 6, 1984, Burkett filed a pro se application for an evidentiary hearing to raise and preserve the issue of his counsel's ineffectiveness in failing to pursue an expeditious resolution of his claims of error. He also sought the appointment of new counsel.

Seven months after the filing of the state habeas corpus petition, and more than 28 months after Burkett's conviction, the Honorable R. Bruce Brumbaugh of the Court of Common Pleas of Blair County held a hearing on the habeas petition on October 11, 1984. At the conclusion of the hearing, Judge Brumbaugh announced that he would render a decision in one week. Eight weeks later, however, when a decision was not forthcoming as represented, Burkett filed for relief before the Pennsylvania Superior Court on December 12, 1984. 3

Burkett's post-trial motions were eventually scheduled for a hearing on January 23, 1985--two years after they had been filed. Burkett objected to proceeding with argument, however, because his motion alleging counsel's ineffectiveness and requesting appointment of new counsel had not yet been scheduled for a hearing. Judge Peoples postponed argument and set a hearing on counsel's ineffectiveness. On April 1, 1985, Judge Peoples conducted a hearing on Burkett's claim of ineffectiveness which included claims raised in a second motion concerning the quality of his counsel's representation on the felony and misdemeanor charges. Both motions were denied on April 2, 1985. Although Burkett appealed the denials to the Pennsylvania Superior Court, they were quashed "sua sponte as interlocutory." App. at 284.

Approximately two months prior to the state court hearing on counsel's effectiveness, Burkett began to seek relief via the federal system. In February of 1985, Burkett filed a writ of mandamus in Blair County in an attempt to compel his defense counsel to file for habeas relief in the federal courts. When counsel failed to initiate a federal proceeding, on March 28, 1985, Burkett filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Western District of Pennsylvania, alleging a violation of his speedy trial rights occasioned by the delay in sentencing in his three pending Blair County cases. 4 After a hearing, in a Report and Recommendation to the district court, the United States Magistrate Judge assigned to the matter recommended that exhaustion of state court remedies be excused because of the length of the delay. The magistrate judge then conducted a four-part Barker v. Wingo analysis, the test set forth by the United States Supreme Court to evaluate speedy trial claims attributable to delay. 407 U.S. at 517-38, 92 S.Ct. at 2185-2196. He thus examined (1) the length of the delay, (2) the cause of the delay, (3) the defendant's assertion of the right, and (4) the resulting prejudice to the defendant, and concluded that all four factors were to be weighed against the government. Specifically as to prejudice, the magistrate judge found that Burkett suffered prejudice since the length of the delay presupposed "some loss" to the petitioner. Burkett v. Cunningham, No. 85-769 (W.D.Pa.1985), Magistrate's Report and Recommendation at 8; App. at 2279. Although positing that an unconstitutional delay of speedy trial rights had occurred, the magistrate judge did not recommend that any affirmative action be taken because "the Court of Common Pleas [of Blair County] has apparently ordered that a hearing [on the post-trial motions] be scheduled." He opined that "it would appear appropriate to withhold any action, to permit the Court of Common Pleas to promptly resolve this matter." App. at 2279-80. Thus, on May 15, 1985, the magistrate judge recommended denial of the writ, conditioned on Judge People's imposing sentence on Burkett within 60 days. The district court adopted the magistrate judge's recommendation and Burkett appealed. We denied Burkett a certificate of probable cause but did so without prejudice to his filing a new petition with the district court if Burkett was not sentenced within the time constraints dictated by the district court.

Indeed, in the interim, on May 8, 1985, Judge Peoples denied Burkett's post-trial motions. His state habeas petition was likewise denied on June 6, 1985. Then, on June 24, 1985, 29 months after his conviction and 38 1/2 months from arrest, Burkett received the maximum sentence permitted for the offenses of which he had been convicted at No. 284--16 to 32 years of imprisonment. No credit was given for time served, although Burkett had remained incarcerated in various county prisons in Western Pennsylvania since April 13, 1982.

On June 24, 1985, Judge Peoples filed an opinion in support of his sentence, but no opinion was filed at that time regarding the denial of the post-trial motions. According to Pennsylvania appellate practice, the opinion explaining the reasons for the denial should have been filed by September 1, 1985, 40 days from the July 23, 1985 filing of the appeal by Burkett. Pa.R.App.P. 1925(a), 1931(a). Judge Peoples filed his opinion on July 16, 1986, in excess of ten months late. The record was transmitted approximately one week later.

While awaiting a written explanation of the denial of his post-trial motions, Burkett filed two federal petitions for relief in August of 1985. Burkett reasserted his arguments concerning the post-conviction delays in all three of his cases and also alleged that the prior federal court order directing Judge Peoples to sentence him within 60 days exposed him to an extremely retaliatory sentence. Counsel was appointed from the Federal Public Defender's Office and an evidentiary hearing was held before a United States Magistrate Judge. On December 24, 1985, the magistrate judge recommended dismissal for want of exhaustion. The district court adopted the magistrate judge's recommendation and Burkett filed an appeal to this court, resulting in Burkett v. Cunningham, 826 F.2d 1208 (3d Cir.1987).

In Burkett I, we scrutinized the two habeas appeals concerning Burkett's three Blair County convictions to decide whether post-conviction delays warranted granting of the writ. We held generally that the Sixth Amendment guarantee to a speedy trial spans from arrest to sentencing and that due process guarantees against trial delays apply to the direct appeal phase. 826 F.2d at 1220, 1221. As to the first conviction, since Burkett still was not sentenced for over five and one-half years, we held that this egregious delay violated Burkett's speedy trial right and concluded that discharge was the appropriate remedy. On the second proceeding, which encompassed two separate convictions with a combined delay of over five years, we agreed with the district court that...

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