Elcock v. Henderson
| Decision Date | 17 October 1991 |
| Docket Number | Nos. 1468,1719,D,s. 1468 |
| Citation | 947 F.2d 1004 |
| Parties | Wendell ELCOCK, Petitioner-Appellant-Cross-Appellee, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee-Cross-Appellant. ockets 91-2049, 91-2051. |
| Court | U.S. Court of Appeals — Second Circuit |
Ronald Cohen, New York City, for petitioner-appellant-cross-appellee.
Pamela L. Milgrim, Asst. Dist. Atty., Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty., Kings County, Jay M. Cohen, Asst. Dist. Atty., Brooklyn, N.Y., on the brief), for respondent-appellee-cross-appellant.
Before KEARSE, MAHONEY, and SNEED *, Circuit Judges.
Petitioner Wendell Elcock is a New York State prisoner whose appeal from his conviction in state court took 8 1/2 years. A due process claim based on that delay was first raised in federal court on a prior appeal to this Court from the dismissal of a petition for habeas corpus on other grounds. See Elcock v. Henderson, 902 F.2d 219 (2d Cir.1990) (per curiam). We remanded to the United States District Court for the Eastern District of New York for the appointment of counsel and consideration of whether the 8 1/2-year delay violated Elcock's right to due process. On remand, the district court, Eugene H. Nickerson, Judge, found due process and Sixth Amendment violations and conditionally granted a writ of habeas corpus, ordering that Elcock be released if a new state-court appeal were not heard by June 1991. Elcock now appeals from so much of the judgment as refused to release him unconditionally, contending that a new appeal will not remedy the violation of his rights. Respondent Robert J. Henderson, Superintendent of the Auburn Correctional Facility (the "State"), contending that the district court erred in finding a due process violation, cross-appeals from so much of the order as requires Elcock's release if a new appeal is not heard. For the reasons below, we vacate the order of the district court and remand for further consideration.
Elcock was convicted of murder and assault in New York Supreme Court in 1978. On September 1, 1978, he was sentenced to concurrent terms of not more than 15 years' imprisonment on the assault count and 25 years to life imprisonment on the murder count. He appealed the conviction to the Appellate Division, Second Department ("Second Department"), by filing his notice of appeal on September 11, 1978.
Elcock's trial counsel, Sara Halbert, was assigned to represent him on appeal on November 28, 1979. She did not, however, prosecute the appeal. Elcock moved pro se for the appointment of new appellate counsel, and on September 13, 1983, the Second Department appointed Bruce J. Cohen ("Bruce Cohen") to replace Halbert.
In February 1985, Elcock wrote to the Second Department to inquire about the status of his appeal and to complain that Bruce Cohen was not responding to his letters. After repeated prodding from the Deputy Clerk of the Second Department and from Elcock, Bruce Cohen eventually submitted a brief in late July 1986. The 66-page brief made a number of arguments for reversal, contesting, inter alia, the validity of pretrial identifications, the sufficiency of the identification evidence at trial, certain evidentiary rulings, aspects of the jury charge, the conduct of the prosecutor, and the propriety of the sentence imposed. No argument was made on the basis of the lengthy delay in the appellate process.
The appeal was finally submitted in late February 1987, and Elcock's conviction was unanimously affirmed on May 18, 1987, People v. Elcock, 130 A.D.2d 682, 516 N.Y.S.2d 19 (2d Dep't 1987); leave to appeal to the New York Court of Appeals was denied in the same year, People v. Elcock, 70 N.Y.2d 711, 519 N.Y.S.2d 1046, 513 N.E.2d 1314 (1987).
Analyzing these events within the framework set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the district court, in a Memorandum and Order dated January 9, 1991 ("January 1991 Order"), reported at 1991 WL 13975, 1991 U.S. Dist. LEXIS 1136, concluded that the delay of Elcock's appeal amounted to a denial of due process. The court found that the delay of 8 1/2 years was "plainly excessive," that it had been caused by "simple neglect by the court appointed attorneys," and that it was not excused. Id. at 3. Finding that Elcock had written to the Second Department several times and to his attorneys numerous times to complain about the slow pace of the appeal, the court concluded that Elcock had "made sufficient efforts to assert his right to a timely appeal" and had "suffered prejudice by experiencing 'unnecessary anxiety and concern.' " Id. (quoting Simmons v. Reynolds, 708 F.Supp. 505, 510 (E.D.N.Y.1989), aff'd, 898 F.2d 865 (2d Cir.1990)).
Relying principally on the district court decision in Mathis v. Hood, 87 Civ. 6234, 1990 WL 100869, 1990 U.S.Dist. LEXIS 8474 (S.D.N.Y. July 11, 1990) ("Mathis I ") (granting habeas), aff'd, 937 F.2d 790 (2d Cir.1991) ("Mathis II ") (collectively "Mathis "), the district court here also found that Elcock's appeal had been prejudiced by what it termed Bruce Cohen's "actual conflict of interest" in representing Elcock on appeal. January 1991 Opinion at 3. The court stated that "[a] successful appeal would have raised serious questions about the three year delay [after Bruce Cohen had been appointed], and might have exposed him to sanction or liability." Id., at 3-4. The court concluded that there had been a per se violation of Elcock's right to the effective assistance of counsel under the Sixth Amendment as applied to the states through the Fourteenth Amendment.
To remedy the constitutional violations, the court conditionally granted Elcock's habeas petition, ordering that Elcock be released "[u]nless within 60 days of this order, new counsel is appointed and perfects the appeal, and the Second Department hears the appeal no later than June, 1991." Id., at 5. The court rejected Elcock's contention that he was entitled to unconditional release. It also observed that its decision did not preclude Elcock from seeking redress for the delay in an action for damages under 42 U.S.C. § 1983 (1988).
The court stayed its conditional release order pending appeal.
Elcock appeals from so much of the judgment as denied him unconditional release. He contends that he was entitled to an outright release (1) because of the delay in his appeal, and (2) because his appellate attorneys, having delayed unconscionably in prosecuting his appeal, could not provide him with effective assistance on appeal. The State cross-appeals, contending that the court erred in finding due process and Sixth Amendment violations. For the reasons below, we uphold the district court's ruling that Elcock's due process rights were violated, but we vacate the order of conditional release and remand for further consideration of the Sixth Amendment issue.
As this Court has made clear, once a state has provided defendants in criminal cases with the right to appeal, "due process requires that an appeal be heard promptly." Mathis II, 937 F.2d at 794; see, e.g., Cody v. Henderson, 936 F.2d 715, 719 (2d Cir.1991); Diaz v. Henderson, 905 F.2d 652, 653 (2d Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); see generally Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985) (). With respect to whether a given delay constitutes a due process violation, we have noted that the analytical framework set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, is generally applicable. See, e.g., Mathis II, 937 F.2d at 794; Cody v. Henderson, 936 F.2d at 719; Simmons v. Reynolds, 898 F.2d at 868. The Barker v. Wingo analysis requires exploration of whether the delay was excessive, whether there was an acceptable excuse for it, whether the defendant waived his right to a prompt appeal, and whether he was prejudiced by the delay. We have ruled appellate delays of 6-10 years excessive. See, e.g., Diaz v. Henderson, 905 F.2d at 653 (seven years "excessive"); Simmons v. Reynolds, 898 F.2d at 868 (six years "clearly excessive"); Brooks v. Jones, 875 F.2d 30, 31 (2d Cir.1989) ().
The district court in the present case properly assessed the merits of Elcock's due process claim within this framework. It found that the 8 1/2-year delay was excessive and without excuse. It found that Elcock had made numerous attempts to speed up the process and hence had not waived his rights. And it found that Elcock had suffered prejudice in the form of unnecessary concern and anxiety. The court's findings were sufficient and not clearly erroneous. The State argues, inter alia, that because Elcock did not adequately demonstrate that the merits of his appeal were affected by the delay, the finding of prejudice was error. We agree with the premise but not the conclusion. "Prejudice to the outcome of the appeal is not a necessary condition" for finding that appellate delay has resulted in a denial of due process. Cody v. Henderson, 936 F.2d at 720. A proper conclusion that there was prejudice may be based on the finding that the petitioner experienced "unnecessary anxiety and concern." Simmons v. Reynolds, 708 F.Supp. 505, 510 (E.D.N.Y.1989), aff'd, 898 F.2d at 868.
On the other hand, we also reject Elcock's contention that such prejudice as was found here warranted the remedy of unconditional release.
The Barker analysis goes only to the question of whether a due process violation has occurred.... A separate and distinct inquiry ... is required to determine the appropriate remedy for the violation.
Mathis II, 937 F.2d at 794. Even where a habeas petitioner has demonstrated that his due process rights have...
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