Odsen v. Moore, No. 71-1184.

• Decision Date: 14 June 1971
• Docket Number: No. 71-1184.
• Citation: 445 F.2d 806
• Parties: Arthur T. ODSEN, Petitioner, v. Robert J. MOORE, Superintendent, Respondent.
• Court: U.S. Court of Appeals — First Circuit

445 F.2d 806 (1971)

Arthur T. ODSEN, Petitioner, v. Robert J. MOORE, Superintendent, Respondent.

No. 71-1184.

United States Court of Appeals, First Circuit.

June 14, 1971.

Arthur T. Odsen on memorandum, pro se.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

PER CURIAM.

Petitioner was convicted of a felony in Massachusetts Superior Court on May 17, 1966. On the day of sentencing and again within the month by mail, petitioner allegedly asked his counsel to appeal the conviction, which he did not do. In August of 1968, after writing without success to various legal aid organizations, petitioner filed pro se a writ of error with a single justice of the Massachusetts Supreme Judicial Court. The Massachusetts Defenders Committee was appointed by the court to represent petitioner, but has not, almost three years later, presented the matter as required to the single justice. Petitioner alleges that considerable correspondence with both the Committee and the courts has been of no avail. Understandably chafing at the delay, he sought federal habeas relief in April, 1970, on the ground that he has been denied a review of his case in violation of the Fourteenth Amendment. The federal magistrate, while able to conceive no justification for the dilatoriness of counsel, dismissed the petition because of failure to exhaust available state remedies. The district court affirmed the dismissal and denied petitioner's application for a certificate of probable cause for appeal, a request which petitioner renews before this court.

Generally it would be a sufficient barrier to petitioner that his case had not yet run its course through the state courts. Needel v. Scafati, 412 F.2d 761 (1st Cir. 1969), cert. denied, 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 113 (1969). Nevertheless, taking all the allegations of the petition at face value, we confess to a sense of the absurd in saying to one who without success has for nearly three years tried to spur both his court-appointed counsel and, apparently, the courts to action, that he must persevere in perpetuity before he can complain of failure to a federal court.

This case seems to be very close on its alleged facts to Jones v. Crouse, 360 F. 2d 157 (10th Cir. 1966), where eighteen months had expired from the time the prisoner's notice of appeal was filed, the record being silent as to any further action. In that case the court said, at 158:

"But an inordinate, excessive and inexcusable delay may very well amount to a denial of due process cognizable in federal court. Smith v. State of Kansas, 10th Cir., 356 F.2d 654; Kelly v. Crouse, Warden, 10th Cir., 352 F.2d 506. Without knowing the facts and circumstances giving rise to the delay, the trial court certainly could not properly conclude that the petitioner\'s state remedies are adequate and effective."

Petitioner here alleges that he repeatedly attempted by letter to seek action from the state court but was consistently informed by the clerk that all complaints of inaction must be directed to counsel of record. From petitioner's point of view, the impasse is as complete as when a case is held under advisement for an unconscionable period, as in Dixon v. Florida, 388...