U.S. v. Smith

Decision Date01 October 1996
Docket NumberNo. 95-3417,95-3417
Citation94 F.3d 204
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Jerry Lee SMITH, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Gary D. Arbeznik, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cleveland, OH, Sean Connelly (briefed), U.S. Dept. of Justice, Crim. Div., Washington, DC, for Plaintiff-Appellant.

David C. Jack (argued and briefed), Sremack & Jack, Akron, OH, for Defendant-Appellee.

Before: NELSON and MOORE, Circuit Judges; CLELAND, District Judge. *

MOORE, Circuit Judge.

The issue before us is whether criminal defendants possess the right to a speedy appeal in the first appeal as of right. In a prior appeal to this court, three years elapsed between the filing of the notice of appeal and the issuance of the court's disposition in this case. On remand for resentencing, the district court found the delay to be violative of due process and released the defendant from custody. Although we agree that the Due Process Clause does provide some minimum guarantee of a prompt appeal to defendants, we hold that the delay in this case did not rise to the level of a due process violation. We reverse the judgment of the district court.

I. BACKGROUND

In 1991, Defendant Jerry Lee Smith was convicted of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). The government sought to have him sentenced under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which sets forth a minimum prison term of 15 years for violators of § 922(g) with three prior convictions for violent felonies or serious drug offenses. At his sentencing hearing, however, Smith challenged two of the four prior convictions proferred by the government, arguing that they were founded upon invalid guilty pleas. The district court agreed, finding them to be violative of Boykin v. Alabama 's requirement of a knowing and voluntary guilty plea. See Boykin, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). Rejecting the ACCA mandatory minimum, the district court applied the Sentencing Guidelines and sentenced Smith to 27 months in prison.

On October 16, 1991, the government appealed under 18 U.S.C. § 3742(b), contending, inter alia, that the district court lacked the authority to consider Smith's constitutional challenge to his prior convictions, at least for purposes of sentencing under the ACCA. A panel of this court heard oral argument on November 10, 1992 but held the case pending the Sixth Circuit's en banc decision in United States v. McGlocklin, 8 F.3d 1037 (6th Cir.1993), cert. denied, 511 U.S. 1054, 114 S.Ct. 1614, 128 L.Ed.2d 341 (1994), which presented essentially the same dispositive issue. On September 17, 1993, the McGlocklin majority held, contrary to the government's position, that district courts did in fact possess some limited authority to entertain challenges to prior state convictions for federal sentencing purposes. At this point, the prior panel could have affirmed the district court in light of McGlocklin. Instead, two months later, it issued an order vacating the judgment and remanding Smith's case to the district court because of "the refusal of the District Court to consider whether certain of defendant's prior convictions are constitutionally valid." United States v. Smith, No. 91-3986, 1993 WL 503098, at * 1 (6th Cir. Dec. 7, 1993) (unpublished order). As stated by the prior panel, "Our recent en banc decision in United States v. McGlocklin ... requires that issue be addressed." Id.

The prior panel was incorrect, of course, since the district court had already explicitly ruled that the defendant's prior convictions were constitutionally invalid. The district judge consequently wrote a letter to the Sixth Circuit Clerk of Court on December 20, 1993, before issuance of the mandate, explaining that the panel's order "must have been mistakenly issued." Memorandum Opinion, No. 1:95CV0199, at 5 (N.D.Ohio Feb. 24, 1995). On September 1, 1994, the Sixth Circuit withdrew the December 7, 1993 order as having been "entered improvidently" and restored the appeal to the active docket. United States v. Smith, 36 F.3d 490 (6th Cir.1994).

Meanwhile, on October 12, 1993, the Supreme Court had granted certiorari in United States v. Custis, 988 F.2d 1355 (4th Cir.1993), which involved the same issue as in Smith and McGlocklin. See Custis v. United States, 510 U.S. 913, 114 S.Ct. 299, 126 L.Ed.2d 248 (1993). Indeed, the prior panel was clearly aware of Custis when it entered its order of December 7, 1993, since it included a footnote to alert the parties and the district court as to the grant of certiorari. See Smith, 1993 WL 503098, at * 1 n. 1. By the time the prior panel withdrew its "improvident" order on September 1, 1994, the Supreme Court had decided Custis, holding that defendants could not collaterally attack their previous state convictions during sentencing proceedings under the ACCA, except in instances where they had been denied appointment of counsel. See Custis v. United States, 511 U.S. 485, ----, 114 S.Ct. 1732, 1734, 128 L.Ed.2d 517 (1994). In other words, the Supreme Court had essentially overruled McGlocklin, although the Court did point out that a prisoner could still reopen his sentencing after successfully challenging his prior convictions in a habeas corpus proceeding. Id. at 1739. Shortly after its September 1, 1994 order, the panel in this case filed its final disposition, vacating and remanding for resentencing in light of Custis. See United States v. Smith, 36 F.3d 490, 493 (6th Cir.1994). Smith, who had completed his term of imprisonment under the prior sentence and was on supervised release, was returned to custody on January 23, 1995.

Sentencing was rescheduled for January 27, but Smith obtained a continuance in order to file a habeas corpus petition under 28 U.S.C. § 2255. On February 24, 1995, the district court denied the petition, noting that the proper means of challenging state convictions was through § 2254 rather than § 2255. In its order, the district court did observe, however, that the extreme appellate delay in Smith's case appeared to give rise to some questions as to the fundamental fairness of his situation. In his resentencing brief, Smith picked up on this point and argued that the delay in adjudicating the government's appeal constituted a denial of due process. The district court agreed and ordered Smith's release on March 15, 1995. Now, the government again appeals under 18 U.S.C. § 3742(b).

II. THE RIGHT TO A SPEEDY APPEAL

The speedy trial guarantee of the Sixth Amendment applies only to proceedings in the trial court. See Burkett v. Cunningham, 826 F.2d 1208, 1219-21 (3d Cir.1987); 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 18.5(c) (1984). Our sister circuits have held, however, that a similar guarantee applies to criminal appeals via the Due Process Clause. See, e.g., Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett, 826 F.2d at 1221-22. In so holding, these courts have first recognized that there is no due process right to an appeal at all, but that an appeal must nonetheless comport with due process "if a State has created appellate courts as 'an integral part' " of its criminal justice system. Harris, 15 F.3d at 1558 (quoting Evitts v. Lucey, 469 U.S. 387, 393, 105 S.Ct. 830, 834, 83 L.Ed.2d 821 (1985)). These courts have then adopted the speedy trial analysis set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), with slight modifications, as the framework for evaluating delay in the appellate context. See Harris, 15 F.3d at 1558-59; Simmons, 898 F.2d at 868; Burkett, 826 F.2d at 1222; see also United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963, 111 S.Ct. 398, 112 L.Ed.2d 407 (1990); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied, 469 U.S. 1033, 105 S.Ct. 505, 83 L.Ed.2d 396 (1984); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980) (adopting Barker analysis in dicta), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981).

In Barker, the Supreme Court identified four factors for courts to balance in determining whether a trial delay is unconstitutional: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." 407 U.S. at 530, 92 S.Ct. at 2192. According to the Court, none of these factors could be termed "either a necessary or sufficient condition," and courts would be best served by engaging in a "difficult and sensitive balancing process." Id. at 533, 92 S.Ct. at 2193. With respect to the fourth factor, prejudice, the Court further directed lower courts to consider three interests of the defendant "which the speedy trial right was designed to protect[:] ... (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired." Id. at 532, 92 S.Ct. at 2193. Lower courts applying Barker to appellate delay have since adapted this prejudice factor to fit the circumstances of convicted parties on appeal, identifying three parallel interests: "(1) prevention of oppressive incarceration pending appeal; (2) minimization of anxiety and concern of those convicted awaiting the outcome of their appeals; and (3) limitation of the possibility that a convicted person's grounds for appeal, and his or her defenses in case of reversal and retrial, might be impaired." Harris, 15 F.3d at 1559 (quoting Rheuark, 628 F.2d at 303 n. 8).

As a threshold matter, we must decide whether to follow these other circuits in transplanting the Barker framework from the trial delay context to the appellate delay context. We believe that we should....

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