Muwwakkil v. Hoke

• Decision Date: 07 July 1992
• Docket Number: D,No. 1174,1174
• Parties: Mikail MUWWAKKIL, a/k/a Michael Negron, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern Correctional Facility, Respondent-Appellee. ocket 91-2568.
• Court: U.S. Court of Appeals — Second Circuit

Page 284

968 F.2d 284

Mikail MUWWAKKIL, a/k/a Michael Negron, Petitioner-Appellant, v. Robert HOKE, Superintendent, Eastern Correctional Facility,

Respondent-Appellee.

No. 1174, Docket 91-2568.

United States Court of Appeals, Second Circuit.

Argued March 24, 1992.

Decided July 7, 1992.

Richard Ware Levitt, New York City, for petitioner-appellant.

Ann Bordley, Asst. Dist. Atty., Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty. for Kings County, Brooklyn, N.Y., Jay M. Cohen, Asst. Dist. Atty., Brooklyn, N.Y., of counsel), for respondent-appellee.

Before LUMBARD, NEWMAN, and CARDAMONE, Circuit Judges.

LUMBARD, Circuit Judge:

Mikail Muwwakkil appeals from the December 9, 1991 order of the District Court for the Eastern District of New York, Korman, Judge, denying his amended petition for a writ of habeas corpus under 28 U.S.C. § 2254. Muwwakkil argues that a thirteen year delay in hearing his direct appeal from a state murder conviction violated his right to effective access to the appellate process, thereby requiring a vacatur or reduction of his sentence. We affirm the order of the district court and remand for further proceedings.

On October 25, 1977, Muwwakkil was convicted in New York Supreme Court, Kings County, of murder in the second degree and sentenced to prison for twenty-five years to life. He filed a timely notice of appeal, and counsel was assigned to represent him. Muwwakkil, who was in prison, immediately contacted the lawyer, offering suggestions for appeal. He also requested transcripts of the trial and drafts of the appellate brief as they became available. Counsel responded that he would send the materials shortly, though Muwwakkil never received them. Muwwakkil continued to write to counsel, but the lawyer's responses remained the same: he was working on the appeal and the briefs would be ready shortly. In fact, the lawyer took no action on the appeal, and failed even to perfect the appeal as required by New York law. Consequently, on June 28, 1985, the appeal was dismissed.

Unaware of the dismissal, Muwwakkil continued efforts to contact his attorney, but to no avail. Counsel eventually stopped responding to the letters, and some were returned undelivered. Muwwakkil then contacted various prisoner assistance and legal aid groups in search of assistance, but they, too, were unable to locate Muwwakkil's appointed counsel. On March 13, 1990, Muwwakkil finally contacted the Appellate Division, Second Department, for information on the status of his appeal. He was told that the appeal had been dismissed five years earlier.

On June 7, 1990, Muwwakkil, acting pro se, petitioned for a writ of habeas corpus in the District Court for the Eastern District of New York, claiming that the state violated his right to due process by failing to provide him access to the appellate process. On November 19, 1990, Judge Korman denied Muwwakkil's petition on the condition that the Appellate Division reinstate and decide the appeal within nine months. Muwwakkil was released on bail pending determination of the appeal.

On November 20, 1990, the Appellate Division reinstated Muwwakkil's appeal and assigned him new counsel. The conviction was unanimously affirmed on May 13, 1991, 173 A.D.2d 571, 570 N.Y.S.2d 161, and on June 28, 1991, the court denied leave for further appeal.

On July 31, 1991, Muwwakkil moved to amend his petition for federal habeas corpus. Muwwakkil argued that although his conviction was lawful, the thirteen year delay in hearing the appeal was unconstitutional, and his sentence must therefore be set aside. Judge Korman granted Muwwakkil's motion to amend his petition, but denied the request for relief. Muwwakkil appeals.

Muwwakkil was clearly denied his right to a speedy appeal. The thirteen year delay in processing an appeal is the longest we have encountered. See, e.g., Elcock v. Henderson, 947 F.2d 1004 (2d Cir.1991) (finding eight and a half year delay excessive); Mathis v. Hood, 937 F.2d 790 (2d Cir.1991) (six year delay); Cody v. Henderson, 936 F.2d 715 (2d Cir.1991) (ten year delay); Diaz v. Henderson, 905 F.2d 652 (2d Cir.1990) (seven year delay); Simmons v. Reynolds, 898 F.2d 865 (2d Cir.1990) (six year delay). Furthermore, Muwwakkil actively pursued his appeal throughout that time, regularly writing to his attorney and then to legal aid groups. Given the extraordinary length of the delay, Muwwakkil's diligent and continuous efforts to pursue his appeal, and the state's apparent failure to supervise its appointed counsel and monitor its calendar, Muwwakkil was denied his right to due process.

In the past, however, we have pointed out that "[e]ven where a habeas petitioner has demonstrated that his due process rights have been violated by a delay in the appellate process, we have 'not consider[ed] th[e] delay, without more, to be a sufficient basis for release from custody.' " Elcock v. Henderson, 947 F.2d at 1008, quoting Mathis v. Hood, 937 F.2d at 794. Rather, "some showing of prejudice to the appeal is necessary for habeas relief." Mathis v. Hood, 937 F.2d at 794 (emphasis added); see also, Cody v. Henderson, 936 F.2d at 720 ("unconditional release is not...