Doescher v. Estelle

• Citation: 454 F. Supp. 943
• Decision Date: 10 August 1978
• Docket Number: No. CA3-77-584 F.,CA3-77-584 F.
• Parties: John D. DOESCHER v. W. J. ESTELLE, Director, Texas Department of Corrections.
• Court: U.S. District Court — Northern District of Texas

454 F. Supp. 943

John D. DOESCHER v. W. J. ESTELLE, Director, Texas Department of Corrections.

No. CA3-77-584 F.

United States District Court, N. D. Texas, Dallas Division.

August 10, 1978.

Tedford E. Kimbell, Janet L. Babcock, Allen, Knuths, Cassell & Short, Dallas Tex., for plaintiff.

John L. Hill, Atty. Gen., Joe Dibrell, Jack B. Boone, Gilbert J. Pena, Asst. Attys. Gen., Austin, Tex., for defendant.

MEMORANDUM OPINION

ROBERT W. PORTER, District Judge.

John Doescher was convicted of aggravated robbery on March 12, 1975 in Criminal District Court No. 2 in Dallas, Texas and on March 20, 1975 the trial judge sentenced him to 75 years in prison. Doescher filed a timely notice of appeal on April 11, 1975 by filing a pauper's oath in which he requested the trial judge to appoint an attorney to represent him on appeal and to order the court reporter to prepare a statement of facts free of charge.

The statement of facts was completed on December 6, 1976, the record on appeal was approved by the Criminal District Court on January 19, 1977 and was forwarded to the Texas Court of Criminal Appeals on April 22, 1977 where it was received on April 25, 1977.

Doescher's case is still pending before the Texas Court of Criminal Appeals and no decision on the merits of his appeal has been rendered to this date. Doescher asserts in his appeal to the Texas Court of Criminal Appeals that: (1) the trial court erred in finding that the identification of the appellant by the witnesses was of an independent origin; (2) the trial court erred in not granting the appellant's motion to suppress items seized in the search of his home because the search warrant and its execution were legally insufficient; (3) the trial court erred in not granting appellant's motion to suppress items seized in the search of his home because his wife's consent and its execution were legally insufficient; and (4) he has been denied his right to speedy appeal.

On April 28, 1977 Doescher filed a writ of habeas corpus petition in the federal district court for the Northern District of Texas alleging that he had been denied his right to an effective appeal and the district court appointed counsel to represent the plaintiff on November 8, 1977. Plaintiff's amended complaint in the District Court alleges: (1) the official court reporter for Criminal District Court No. 2 denied Plaintiff his rights under the 14th Amendment to the U.S. Constitution by discriminatorily completing transcripts of non-indigent appellants before completing the transcript of Plaintiff; (2) all of the current defendants denied Plaintiff his right to a speedy appeal, as guaranteed by the Sixth Amendment made applicable to the states through the 14th Amendment, by failing to provide him with a transcript of his trial for a period of nearly two years; (3) all of the defendants denied Plaintiff due process of law by rendering his right of appeal ineffective by failing to provide him with a transcript of his trial for almost two years and by providing him with an inadequate and inaccurate record when it was provided; and (4) for violation of these rights, Plaintiff requests monetary and injunctive relief under 42 U.S.C. § 1983, including release from custody.

When a petitioner alleges an unjustified delay in processing his appeal, the court must, in appropriate circumstances, hold an evidentiary hearing to determine whether the delay was justified or unjustified. Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976). Courts have evaluated various causes for delay in processing appeals, including, for example, delay in preparing transcripts to be sent to the appellate court, Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976); United States Ex Rel. Smith v. Twomey, 486 F.2d 736 (7th Cir. 1973); Courtney v. Sarver, 440 F.2d 1197 (8th Cir. 1971); Tramel v. State of Idaho, 459 F.2d 57 (10th Cir. 1972), delay in preparing a case for appeal by a court appointed attorney, Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969); Odsen v. Moore, 445 F.2d 806 (1st Cir. 1971); Henderson v. Cardwell, 456 F.2d 150 (6th Cir. 1970); Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966); Kelly Crouse, 352 F.2d 507 (10th Cir. 1965), and delays in handling an appeal once it reaches a higher court, Parker v. State of Texas, 464 F.2d 572 (5th Cir. 1972). If the court finds that the delay was unjustified, the court must consider the merits of the petitioner's claims for relief. Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976); Dixon v. State of Florida, 388 F.2d 424 (5th Cir. 1968).

On April 10, 1978 I determined that under the reasoning of Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976) I would first decide at an evidentiary hearing the limited questions of whether the delay in transmitting the record to the Texas Court of Criminal Appeals was justified or unjustified, and whether Doescher had been denied his asserted right to a speedy appeal. At that time I indicated that if I concluded that the delay was unjustified, I would consider the merits of Plaintiff's Constitutional claims for damages and habeas relief at a later hearing. An evidentiary hearing was held on April 18, 1978 and this opinion resolves the preliminary issues of whether the delay in transmitting the record to the Texas Court of Criminal Appeals was justified or not, and whether Doescher should be released because he has been denied his right to speedy appeal.

An action for Writ of Habeas Corpus is authorized by Title 28, U.S.C., Section 2254. A federal judge may entertain an application for Writ of Habeas Corpus on behalf of a person in custody pursuant to a state court judgment ". . . only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). An Application for Writ of Habeas Corpus may not be granted unless it is shown 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. § 2254(b). The habeas corpus requirement that state remedies first be exhausted is not a jurisdictional prerequisite but is founded on the more flexible principles of comity. Ballard v. Maggio, 544 F.2d 1247 (5th Cir. 1977). A federal court postpones jurisdiction, rather than relinquishing it; and in some cases the need to assure prompt protection for federal rights may supercede the policy in favor of deference to the state. West v. State of Louisiana, 478 F.2d 1026 (5th Cir. 1973), vacated on other grds. 510 F.2d 363 (5th Cir. 1975).

An inordinate and unjustified delay in processing an appeal of a state criminal conviction can frustrate the petitioner's rights and render the appeal ineffective. 28 U.S.C. § 2254(b); Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976); St. Jules v. Beto, 452 F.2d 1365 (5th Cir. 1972); Dixon v. State of Florida, 388 F.2d 424 (5th Cir. 1968). Other courts have also recognized a similar exception to the exhaustion requirement when there is an inordinate delay in the state post-conviction process. Inexcusable delay in processing an appeal may become a denial of due process and a district court should hold a hearing to determine the cause of the delay. Tramel v. State of Idaho, 459 F.2d 57 (10th Cir. 1972); Jones v. Crouse, 360 F.2d 157 (10th Cir. 1966); Clark v. Crouse, 352 F.2d 507 (10th Cir. 1965); Finan v. Crouse, 352 F.2d 507 (10th Cir. 1965). The Tenth Circuit has determined that unexplained delays of 18 months and 12 months in processing appeals entitled the petitioner to federal review of the habeas claims. Way v. Crouse, 421 F.2d 145 (10th Cir. 1970); Smith v. State of Kansas, 356 F.2d 654 (10th Cir. 1966).

The Eighth Circuit has also recognized that "when a state in effect closes its doors to a state prisoner and refuses to afford him due process on a habeas corpus claim, a federal court need not further delay its own process." Courtney v. Sarver, 440 F.2d 1197 (8th Cir. 1971). Delay by itself does not merit intervention of the Federal Court; only when that delay is a result of discrimination against the petitioner amounting to a denial of due process should federal intervention proceed to a hearing on the merits of the petitioner's claims. Barry v. Siegler, 373 F.2d 835 (8th Cir. 1967). A New York District Court held that if the state failed to promptly process a delayed hearing on petitioner's state appeal, it would reconsider its decision not to hear those claims. United States v. Dros, 260 F.Supp. 13 (S.D.N.Y.1966).

The Second Circuit has held that a delay of four years from the time of the filing of the notice of appeal to appellate argument was not the equivalent of a complete absence of effective state appellate process and therefore the appellant had to exhaust his state remedies before resorting to the appellate courts. Ralls v. Manson, 503 F.2d 491 (2nd Cir. 1974); but see Roberson v. State of Conn., 501 F.2d 305 (2nd Cir. 1974) (after petitioner has exhausted his claim of denial of due process through undue delay is processing his appeal, district court must hear his asserted Constitutional claim).

The Seventh Circuit has held that where a petitioner asserts inordinate delays in processing his appeals the federal courts must determine whether those delays were justifiable. Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (delay of 17 months in processing appeal); United States Ex Rel. Smith v. Twomey, 486 F.2d 736 (7th Cir. 1973) (petition dismissed because petitioner's claims then pending in state appellate court but Circuit ordered responsible officials to insure speedier processing of indigents' trial transcripts and filing of briefs).

The First Circuit has held that where an appellate court directly or indirectly has refused bail to an appellant, there should be an implicit obligation on the part of those in authority to permit,...