McNeely v. Blanas

• Decision Date: 18 April 2003
• Docket Number: No. 02-15860.,02-15860.
• Citation: 336 F.3d 822
• Parties: Dock McNEELY, Petitioner-Appellant, v. Lou BLANAS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.3d 822 Dock McNEELY, Petitioner-Appellant,
v.
Lou BLANAS, Respondent-Appellee. No. 02-15860. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 14, 2003. Opinion Filed April 18, 2003. Amended July 17, 2003.

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Daniel J. Broderick, Chief Assistant Federal Public Defender, Sacramento, CA, for the petitioner-appellant.

Craig S. Meyers, Deputy Attorney General, Sacramento, CA, for the respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV-00-1358-DFL.

Before: NOONAN, TASHIMA, and WARDLAW, Circuit Judges.

ORDER

The opinion filed on April 18, 2003, and reported at 326 F.3d 1056, is withdrawn and replaced by the amended opinion filed concurrently with this order. With these amendments, the panel has voted to deny the petition for panel rehearing. Judges Tashima and Wardlaw vote to deny the petition for rehearing en banc and Judge Noonan so recommends. The full court has been advised of the petition for rehearing en banc, but no judge of the court has called a vote on en banc rehearing. The petition for panel rehearing and the petition for rehearing en banc are denied. See Fed. R.App. P. 35(f). No further petition for rehearing may be filed.

Respondent-appellee's application to consider matters outside of the record and his motion for judicial notice, both filed concurrently with respondent-appellee's petition for rehearing, are denied.

OPINION

TASHIMA, Circuit Judge.

Dock McNeely ("McNeely" or "Petitioner"), a California pretrial detainee, appeals the district court's dismissal of his 28 U.S.C. § 2241 habeas petition.¹ McNeely contends that his constitutional speedy trial rights are being denied because he has been in custody since April 1998 without a preliminary hearing or trial. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse.

BACKGROUND

Petitioner is a defendant in a pending California state felony case. He was arrested on April 13, 1998, and was charged two days later with lewd and lascivious conduct upon a child under the age of 14 and failing to register as a sex offender in violation of Cal. Pen.Code §§ 288, 290. Petitioner had not yet received a preliminary hearing or trial as of the conclusion of

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briefing in this case.²

The case has been repeatedly continued due to a combination of competency hearings, replacements of counsel, a period from February 19, 1999, to August 19, 1999, when McNeely was found to be incompetent and committed to a state hospital, the disqualification of two judges, and numerous other continuances. The precise reasons for many of the continuances are unclear due to Respondent's failure to provide a complete and certified state court record, the cryptic notations which constitute much of the purported state court record, the absence of any key to the extensive abbreviations in the "minutes," the absence of transcripts for the vast majority of the various hearings, and the absence of any record for the period between December 31, 2000, and March 26, 2002.

Petitioner filed state court petitions for relief, most of which were summarily denied. On October 20, 1998, Petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, raising the failure to hold a preliminary examination within the statutory time period, which required that he be released on his own recognizance. On October 29, 1998, the court of appeal summarily denied McNeely's petition. On December 31, 1998, Petitioner filed an ex parte application for an order directing issuance of a writ of mandate, prohibition, or other extraordinary relief in the California Court of Appeal. Among other things, he raised the failure to conduct a preliminary examination or trial within the statutorily-required time limit. On January 7, 1999, the court of appeal denied that petition. On February 3, 1999, Petitioner filed a petition for review in the California Supreme Court, raising among other things the lack of a preliminary examination. On February 17, 1999, the state supreme court summarily denied his petition for review. On January 6, 2000, Petitioner filed a habeas petition with the Sacramento County Superior Court, raising the lack of a preliminary hearing and the violation of his speedy trial rights. On February 8, 2000, the superior court dismissed the petition because he had not substantiated his allegations and because he had a Marsden³ motion pending in his underlying criminal case. On May 22, 2000, the trial court denied Petitioner's motion to dismiss for violation of his speedy trial rights. On May 25, 2000, Petitioner filed a petition for writ of prohibition in the state court of appeal, alleging that the superior court erred in denying his motion to dismiss and to release him from custody pursuant to Cal. Pen.Code § 859(b). On June 8, 2000, the court of appeal denied the petition.

Petitioner, acting pro se, filed a petition for writ of habeas corpus in federal district court on June 21, 2000. After the initial petition was dismissed without prejudice

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due to the presence of unexhausted claims, Petitioner filed an amended petition, excluding the unexhausted claims, on September 25, 2000. In his answer, Respondent agreed that Petitioner has exhausted his remedies on the issues raised in the amended petition. On January 11, 2002, the magistrate judge filed his report recommending that the state court complaint against McNeely be dismissed and that he be released without prejudice to the institution of civil commitment proceedings. Both parties filed objections. On March 26, 2002, the district court granted Respondent's motion to dismiss the amended petition, dismissing McNeely's speedy trial claim. McNeely timely appeals.

STANDARD OF REVIEW

We review the district court's denial of a habeas petition de novo. See Coalition of Clergy v. Bush, 310 F.3d 1153, 1157 (9th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 2073, 155 L.Ed.2d 1060 (2003). The district court's findings of fact are reviewed for clear error. Park v. California, 202 F.3d 1146, 1149 (9th Cir.2000).

DISCUSSION

A. Sixth Amendment Right to a Speedy Trial

In Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court articulated a four-part test to determine when government delay has abridged the Sixth Amendment right to a speedy trial. The factors to be considered include: (1) the length of the delay; (2) the reasons for the delay; (3) the accused's assertion of the right to speedy trial; and (4) the prejudice caused by the delay. No single factor is necessary or sufficient. Id.

As explained further below, the length of delay, McNeely's assertion of his right to a speedy trial, and the prejudice caused by the delay all weigh in favor of finding a violation of McNeely's right to a speedy trial. Further we hold that Respondent has the burden of explaining the reasons for the delay. Because Respondent has utterly failed to provide a comprehensible record and even failed to comply with the magistrate's order to file transcripts of relevant hearings, the reasons-for-delay factor also weighs in McNeely's favor. Alternatively, we find that although Respondent failed to supply a fully comprehensible record, the scant record that is available is adequate to demonstrate that McNeely's constitutional rights have been violated by delays that can be attributed to Respondent.

We examine each factor seriatim.

(1) Length of the Delay

The district court found the length of the delay (three years at that time) to be substantial.⁴ Further, given the length of the delay, prejudice is presumed and triggers a Barker inquiry. See Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

(2) Reasons for the Delay

The Supreme Court has repeatedly held that the prosecutor and the court have an affirmative constitutional obligation to try the defendant in a timely manner and that this duty requires a good faith, diligent effort to bring him to trial quickly. See Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) (stating that courts should inquire whether the state "discharge[d] its `constitutional duty to make a diligent, good-faith effort to bring [the defendant to trial]'" (quoting Smith v.

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Hooey, 393 U.S. 374, 384, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969))); Dickey v. Florida, 398 U.S. 30, 38, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) ("[T]he right to a prompt inquiry into criminal charges is fundamental and the duty of the charging authority is to provide a prompt trial.").

Numerous lower courts have, thus, held that the prosecution bears the burden of explaining delay in bringing an accused to trial. See e.g., United States v. Brown, 169 F.3d 344, 349 (6th Cir.1999) (stating that government had the burden of proving that defendant was actually culpable in causing the delay by evading arrest on the indictment, or was aware of the issuance of the indictment and intentionally hid himself from law enforcement agents); United States v. Graham, 128 F.3d 372, 374 (6th Cir.1997) (holding that the state has the burden to explain pretrial delay); Jones v. Morris, 590 F.2d 684, 686 (7th Cir.1979) (finding that where reason for 23-month delay did not clearly appear in the record, "the absence of any reason for the delay should weigh against the state"); Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir. 1975) (stating that where the record does not demonstrate reason for the delay and the state has provided no reasonable explanation, the court will "assume that there is no justifiable reason and weigh this factor heavily against the state"); Georgiadis v. Superintendent, Eastern Correctional Facility, 450 F.Supp. 975, 980 (S.D.N.Y.), aff'd, 591 F.2d 1330 (2d Cir. 1978) (stating that where actions of the defendant do not account for entire period, "the...