# Victor Turner v. Margaret Bagley

> Court of Appeals for the Sixth Circuit · March 21, 2005 · 401 F.3d 718

URL: https://www.frixlaw.com/law-library/cases/9497845

## Case

- **Full name:** Victor TURNER, Petitioner-Appellant, v. Margaret BAGLEY, Respondent-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** March 21, 2005
- **Citations:** 401 F.3d 718; 2005 U.S. App. LEXIS 4549; 2005 WL 638162
- **Precedential status:** Published
- **Opinion:** Concurring in part
- **Judges:** Guy, Cole, Tarnow
- **Cited by:** 47 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9497845

## How later opinions describe it (automated extraction)

- explaining that further efforts were “futile” where the state failed to act despite repeated requests from the petitioner
- finding state process ineffective where petitioner made “frequent but unavailing requests to have his appeal processed” but was unable to do so for almost 11 years

## Opinion text

RALPH B. GUY, Jr., Circuit Judge,
concurring in part and dissenting in part.
I concur in the decision to vacate the dismissal of Turner’s habeas petition for failure to exhaust his state remedies because I agree that the failure to exhaust should have been excused as a result of inordinate delay in his direct appeal that was not attributable to him. 28 U.S.C. § 2254 (b)(1)(B); Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir.1992). By any estimation, at the time the district court dismissed Turner’s petition, the complete failure by a succession of appointed counsel to file any claims of error or a brief in support of Turner’s direct appeal for more than eight years was excessive and the record does not indicate that the delay was attributable to Turner or was otherwise excusable.
Moreover, the district court’s refusal to excuse exhaustion because there were state remedies available misses the point. It is true that most cases have involved state criminal appeals that languished without decision, leaving the petitioner in a “limbo,” while in this case there was a judgment entered by the Ohio Court of Appeals from which Turner could have appealed. That judgment, however, was simply a dismissal without prejudice such that a successful appeal would simply have returned petitioner to that “limbo.” Nor would a Rule 26(b) motion to reopen cure the appellate delay because it is the vehicle for presenting claims of ineffective assistance of appellate counsel; here, the complete failure to present any claims or prosecute the direct appeal.
Further, I agree that the intervening decision resolving Turner’s direct appeal on the merits does not render this appeal moot. That decision did not address his claims of inordinate delay and ineffective assistance of counsel in his direct appeal. While it is not clear whether a due process right to “speedy appeal” may be the basis for habeas relief (since it has not been recognized by the Supreme Court), or whether Turner can demonstrate actual prejudice to the appeal arising from the delay, Harris v. Champion, 15 F.3d 1538, 1566 (10th Cir.1994), the only issue presented by the certificate of appealability was the dismissal for failure to exhaust state remedies. As such, although I agree that the dismissal should be vacated, I would remand for further consideration of Turner’s habeas petition. For this reason, I dissent from the decision granting Turner an unconditional writ of habeas corpus.
Lastly, Turner asks that we remand to the district court to allow him to “recast” the habeas petition as an action for damages under 42 U.S.C. § 1983 . See Cody v. Henderson, 936 F.2d 715, 723 (2d Cir.1991). While this court has not endorsed this procedure, Turner has certainly been free to bring an action under § 1983, subject to defenses of absolute or qualified immunity, seeking redress from the appropriate defendants. See Simmons v. Reynolds, 898 F.2d 865, 869 (2d Cir.1990) (expressing no view on who might be appropriate defendants or whether any might be entitled to immunity in a separate suit for damages). Given the limited scope of this appeal, the fact that the intervening decision has substantially altered the landscape of the case, and the fact that Turner has not explicitly abandoned any of his habeas claims, I concur in the decision declining to allow Turner to convert his “speedy appeal” claim to a cause of action for damages under § 1983.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9497845. Public record. Not legal advice.