Opposition Brief — Haberstroh v. Burkett

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No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER 1991 TERM

WILLIAM J. HABERSTROH,

District Attorney of Blair county,

Pennsylvania, et. al.

Petitioner

WAYNE PAUL BURKETT

Respondent

MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

Respondent, Wayne Paul Burkett, pursuant to Title 18, United

States Code, Section 3OO06A(d)(6) and Rule 46.1 of the United

States Supreme Court, asks leave to file the attached Brief in

Opposition to the Petition for writ of cCertiorari without

prepayment of costs, and to proceed in forma pauperis. Pursuant

to an appointment under the Criminal Justice Act of 1964, as

amended, the Federal Public Defender’s Office was appointed to

represent the Respondent in the United States District Court for

the Western District of Pennsylvania and on appeal to the United

States Court of Appeals for the Third Circuit.

DATED: April 17, 1992

Respectfully submitted,

~ ; J * fe 2 A

— £ WUT ,

THOMAS S. WHITE

Federal Public Defender

Counsel of Record

KAREN SIRIANNI GERLACH, Assistant

Federal Public Defender

DENNIS M. STEFAN, Esq.

415 Convention Tower

960 Penn Avenue

Pittsburgh, Pennsylvania 15222

412/ 644-6565

AO 72A

(Rev. 8/82)

Re ee ee ee ee eT een ee ee eee ae

AO 72A

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No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER 1991 TERM

WILLIAM J. HABERSTROH,

District Attorney of Blair County,

Pennsylvania, et. al.,

Petitioner

WAYNE PAUL BURKETT,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

THOMAS S. WHITE

Federal Public Defender

Counsel of Record

KAREN SIRIANNI GERLACH, Assistant

Federal Public Defender

DENNIS M. STEFAN, Esq.

415 Convention Tower

960 Penn Avenue

Pittsburgh, Pennsylvania 15222

412/ 644-6565

G | _)522-

ATTACHED IS A CORRECTED COPY OF THE RESPONDENT’S BRIEF IN

WILLIAM J.HABERSTROH v. WAYNE PAUL BURKETT, 7h“ iSae

CORRECTED PAGES ARE AS FOLLOWS: (1) Questions Presented

THE APPENDIX REMAINS THE SAME.

LEASE REMOVE AND DISCARD THE ORIGINAL 44 PAGES OF THE BRIEF AND

NSERT TPE ATTACHED CORRECTED COPY.

THIS CASE WAS LISTED FOR MAY 15th, LIST 3, PAGE 15.

AND WAS STRICKEN PENDING RECEIPT OF THE RECORD.

7 | 7 [5 Ld Supreme Court, U.S.

CORRECTED COPY PILED

QUESTIONS PRESENTED APR 17 1992

OFFICE OF THE CLERK

DOES THE SIXTH AMENDMENT’S SPEEDY TRIAL

CLAUSE APPLY NOT ONLY TO DELAY BEFORE A

CRIMINAL MTRIAL, WHEN THE DEFENDANT IS

PRESUMED INNOCENT, BUT ALSO TO PROCEEDINGS

AFTER HE HAS BEEN FOUND GUILTY?

il.

MAY A COURT FIND A CONSTITUTIONAL VIOLATION

WHERE THE POST-TRIAL DELAY WAS ' NEITHER

INTENDED TO NOR RESULTED IN PREJUDICE TO THE

DEFENDANT’S ABILITY TO PROCEED AT SENTENCING

OR ON APPEAL?

iil.

MAY A COURT REMEDY ANY SUCH VIOLATION BY

DIRECTLY REDUCING THE DEFENDANT’S SENTENCE IN

PROPORTION TO THE LENGTH OF THE DELAY?

CORRECTED COPY

AO 72A

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TABLE OF CONTENTS

re ee Ns a ng a's ce ce ake 6 Oe ene eee ee 1

ye ee eh Pe ee ee ee ee ee ee ee en lv

OPSMIGRS GE OFGSER BOLO ss coc ce cccie eden ceceseeeeikadbacws vil

COUNTOCSTATOMONE OF JUFLSGICCION. «ccc ccc wecesanstseeenseneee 1

COMRTOTECETGMRNS GF CHO COMM e sek ck cen bes be ere nee een eeeseeens 2

Summary of Reasons for Denying the Writ..........cccccccecs 18

REEGONG TOF DORVins CHO MELE. oc ck eink Hee bw een cece eeeewus 23

NE RO BOs 060 6.5 6 6 NRA AUAN OM SELES AD ESE OR MURR ELE RASS 44

COPEL ELcate GF Wamberenio in BAG. 5. kk ved sbenaesssuscseeus 45

Contents of Appendix:

Petition for Writ of Habeas Corpus

GECOe BAC O,. Sees cece kc ems enee bee ea eee s la

Answer to Petition for Habeas Corpus

Relief at Civil Action No. 85-0769........ 2a

Amended Petition for Writ of Habeas

Corpus Pursuant to 28 U.S.C. Section

22354 Gate November 10, 1987. ceccccucsvcsecvcs 3a

Answer to Amended Petition for Writ

of Habeas Corpus at Civil Action

Bes) Bonet a hs o4 RAR CR RR RS OS OER ek es 4a

Magistrate Judge Mitchell’s Report ' and

Recommendation dated May 15, 1985......... 5a

Order of Judge Weber dated :

FOR DU g APSR 6 Ce eN DEAS RERERK HERERO RODS BORE OS 6a

072A ii

lev. 8/82)

Opinion of the United States Court

| of Appeals for the Third Circuit at

NOS. B6-3074 & BE-TAZ2 sc ncncecessaseeweaes 7a

Petition for Writ of Habeas Corpus

at Civil Action We.. 96-2307 si dss cucact wows 8a

Respondent’s Answer to Petition for

Writ of Habeas Corpus at Civil Action

NO. SEK2I97 oc ccweeceocenes ese ee we eneeneneun 9a

Petition to Amend Petition for Writ

of Habeas Corpus at Civil Action

NO. BE-LSF la cccesecvsenceeseebaeeebe wee een 10a

Respondent’s Amended Answer to

Petition for Writ of Habeas Corpus at

Civil Action BO. GG“2397 « vaccivssunecceses lla

Brief in Support of Commonwealth’s

Request for Denial and Dismissal of

Appellant’s Petition for Writ of Habeas

Corpus at NO. SS-311S.cwccvceccasassesaets 12a

Opinion of the United States Court

of Appeals for the Third Circuit at

NO. SPSL iB occ vc cvuserenesseneeeebeas tees 13a

Appellee’s Brief in Support of the

Commonwealth’s Request for Denial and

Dismissal of Apvpellant’s Petition for

Writ of Habeas Corpus dated

SUNG G, TOPLs cvs vasee ec adutaswe eee es eaeeen 14a

Opinion of United States Court of

Appeals for the Third Circuit at

NO. DLT JOGO. cvccecctastenssseveeeeaee ea eee 15a

Declaration Pursuant to Rule 29.2 of the Rules

Of Che SUPTOMO COULE «ios obs 50000600464 E NORE SOE

ev. 8/82)

072A | iii

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TABLE OF AUTHORITIES

CASES:

Barker v. Wingo

407 U.S. 514 (1972)...... 13,14,15,16,24,25,37,39,42,42

Brown v. Allen

24464 UB. 443 (2953) cdi ccccvvccnvacnnneun see 28

Burkett v. Cunningham

826 F.2d 1208 (3d Cir. 1987)

Cee eRe HED ERODE EES OS 10,11,12,13,19,23,24,25,30,40,41,43

Burkett v. Fulcomer

Bos F.2G (3G Cif. 19S) cccscesvontiavecaecaucieee Lost4o,4e

California v. Taylor

SOS Vebe SSS CL9S7 ) oo 5066066484648 ENO *E ee 18,26

Evitts v. Lucey

469 U.S. 387 (1985). ..ccecccecccececeere 10,11,20,27,42

Gonzales v. State

$02 P.2d 630 (Alaska 1978) .coaccosdstcaeasneues 35,36

Griffin v. Illinois

PGR U.S. 12 (1056) i once 6 boon 6000 ededekb cau RET he 42

Hilton v. Braunskill

$02 UiB. FIO (LOC) oc ccciccceciséseccecsinatenne 17

Moore v. Arizona

S64 Uses 25 CASTS) 6 aca cerscecsevesessrsavevbesanaeeee Zigay

Perez v. Sullivan

793 F.2d 249 (10th Cir. L9S6) cccsnnceséesvrsanwes 30,37

Pollard v. United States

Sea Ves SOE (1957) 0-0-0600 08 4h bb 04 ke ees 29,30,31,32,35

Springfield v. Kibbe

480 U.S. 257 (1987)... ccccccccccccccccccccvcceucse 18,26

State v. Dean

S26 Ac2d 909 (VE.1967) oo oan seas 050420606 0%¢000027 36

State of New Hampshire ex. rel. McLellan

127 N.H. 33, 498 A.2d 735 (1985) ..cccsasscvsseceseers 36

Strunk v. United States

412 U.S. 434 (1973)... ccc ccc cc ccc cece cece ees 17,22,37

United States v. Campbell

531 F.2d 1333 (5th Cir. LO7G) 6 ccd ast onecseeadeaw een ae

United States v. Reese

568 F.2d 1246 (6th Cir. i Vee Peeree eee a ee ee es ere ees 37

| RULES:

Pennsylvania Rule of Appellate Procedure 1925: |

(a) General Rule. Upon receipt of the notice

of appeal the judge who entered the order

} appealed from, if the reasons for the order

! do not already appear of record, shall

forthwith file of record at least a brief

statement, in the form of an opinion, of the

reasons for the order, of the rulings or

other matters complained of, or shall specify

| in writing the place in the record where such

reasons may be found.

| STATUTES:

| Pitia 20, United: Seacan Coes. CL SGA0L) «as cies kccShic haw cke-cax

i Pitla 26, United States. Code $1653 (a) oc xk sic wiceso ceded sck

TICLS -36; VRECOS SEAURs. Come. C2a82 CO) 60s 0054S 6 we eo 0k eee

PiCLO BG, TACOS Bee Come Bae ees 6 he 6 ewewsn dex ceticcess

FECES 20 UREEOe: BUNGEE CO BAe 6:64 6 SS 54S RECA ER CES

AO 72A

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CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Sixth Amendment:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the state and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with’ the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the assistance of counsel for his

defence.

United States Constitution, Fourteenth Amendment, Section 1:

All persons born or naturalized in the United

States and subject to the jurisdiction

thereof, are citizens of the United States

and of the State wherein they reside. No

State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction

the equal protection of the laws.

(Rev. 8/82)

| , |

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OPINIONS AND ORDERS BELOW

The December 20, 1991 opinion of the United States Court of

Appeals for the Third Circuit which held that the order of the

district court should be reversed and remanded with instructions

that the writ of habeas corpus be granted is reported at 951 F.2d

1431 "Burkett III", and is reprinted at P-App. 1-83.12

The December 27, 1990 order of the United States District

Court for the Western District of Pennsylvania dismissing

Burkett’s petition for writ of habeas corpus and denying a

certificate of probable cause is set forth at P-App. 119-120.

The December 7, 1988 Magistrate’s Report and Recommendation

is set forth at P-App. 84-97, and the October 18, 1990

Magistrate’s Supplemental Report and Recommendation is set forth

at P-App.98-118.

The August 7, 1990 unpublished opinion of the United States

Court of Appeals for the Third Circuit at Appeal No. 89-3118 which

remanded this case to the district court for further proceedings

is set forth at R-App. l3a. ("Burkett II").

The July 10, 1987 opinion of the United States Court of

Appeals for the Third Circuit which reversed the judgment of the

district court with regard to No. 86-3121 and remanded with

1 "P-App." refers to the Appendix filed by the Petitioner

in conjunction with the current Petition for Writ of Habeas

Corpus. "R-App." refers to the Appendix filed by the respondent,

Wayne Paul Burkett in conjunction with this Brief in Opposition to

Petition for Writ of Certiorari. "App." refers to Appendix filed

in Court of Appeals.

vii

AO 724

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instructions for further proceedings as to the conviction at No.

161, and instructions to grant the writ of habeas corpus and

discharge Burkett with regard to the convictions at Nos. 140/141,

is reported at 826 F.2d 1208 (3d Cir. 1987)("Burkett I"). MThis

decision is set forth at R-App. 7a.

The May 30, 1985 order of the United States District Court

for the Western District of Pennsylvania dismissing Burkett’s

petition for writ of certiorari and denying a certificate of

probable cause “unless the Court of Common Pleas of Blair County

fails to dispose of the post-trial motions and impose any

appropriate sentence within sixty (60) days" is set forth at R-

App. 6a.

The May 15, 1985 Magistrate’s Report and Recommendation upon

which the May 30, 1985 order of the district court is based is set

forth at R-App. Sa.

‘2m

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COUNTERSTATEMENT OF JURISDICTION

The district attorney seeks a writ of certiorari from an

opinion of the United States Court of Appeals for the Third

Circuit which was filed on December 20, 1991 and is reported at

951 F.2d 1431 (3d Cir. 1991). This opinion held that the district

court should be reversed and the case remanded with instructions

to grant a writ of habeas corpus by reducing the respondent’s

sentence by the 39 months of delay chargeable to the Blair County

Court.

Jurisdiction is conferred upon this Court by 28 U.S.C.

§1254(1) which grants the United States Supreme Court jurisdiction

to review by writ of certiorari all final judgments of the courts

of appeals. Jurisdiction is also conferred upon this Court by 28

U.S.C. §165l(a) which grants the United States Supreme Court

jurisdiction to issue all writs necessary or appropriate in aid of

;

its respective jurisdiction and agreeable to the usages and

principles of law. Furthermore, 28 U.S.C. §2254 provides that the

United States Supreme Court “shall entertain an application fora

writ of habeas corpus" where the applicant is in custody pursuant

to a state court judgment and where the applicant avers he is in

custody in violation of the constitution, laws or treaties of the

United States.

COUNTERSTATEMENT OF THE CASE

While on bail awaiting sentences on two previous criminal

convictions in Blair County, Pennsylvania, the respondent Wayne

Paul Burkett ("Burkett") was arrested on April 13, 1982 and

charged in an Information at No. 284 of 1982 in the Court of

Common Pleas of Blair County. The Information charged Burkett

with the felonies of burglary and attempted rape; with the

misdemeanors of reckless endangering another person, terroristic

threats, and simple assault; and with the Summary offense of

harassment. Burkett has been continuously incarcerated since this

arrest, and has steadfastly and consistently asserted his

innocence as to all of these charges.

While Burkett was awaiting trial for the charges at No. 284,

the prosecution was granted several continuances beginning on

October 1, 1982. Burkett filed motions to dismiss for lack of

timely prosecution beginning on October 15, 1982. The Blair

County Court of Common Pleas denied dismissal and granted further

cont inuances On November 5, 1982 and January 4, 1983, Burkett’s

jury trial began on January 26, 1983 and Burkett was found guilty

on January 28, 1983.

The facts surrounding the crimes are as follows. On Easter

Sunday, April 11, 1982, at approximately 11 p.m., Bernice Hummel

("Hummel") was alone in her home in McKee, Pennsylvania. (TT 25;

App. 65). She heard a noise at her front door and Snapped the

front porch light on and saw a young man whom she did not know

) 72A

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standing between the storm door and the frent door. She decided

not to let him in and walked away from the door.

The man pushed the door open and entered. (TT 30; App. 70).

Re asked Hummel if she had called the police, and she responded

that she did not call the police. He then Sat down and picked up

a Cigarette and asked for Something to drink. She left the room

and went into the kitchen and got him a glass of water and then

she sat down and asked him to leave. (TT 31; App. 71).

Hummel and the young man conversed for a period of time; and

he said that his name was Jim Costlow and that he knew her. He

then took her hand and attempted to pull her to the Steps leading

upstairs. (TT 32; App. 72). He repeatedly said to her that he

wanted her to perform sexual acts on him. (TT 32; App. 72).

While in the kitchen, the intruder opened a drawer and took out a

knife and threatened to slit her throat. Hummel then fainted, and

fell to the floor. (TT 33; App. 73).

As Hummel laid on the floor, she heard the young man unzip

his pants. (TT 34; App. 74.) She rose and after a struggle, she

got away and ran to a neighbor’s home.

The police were summoned and responded. (TT 86; App. 126).

Hummel provided Officer Peacock of the Pennsylvania State Police

with a description of the intruder.

The next day, State Trooper Ligenfelter contacted Hummel for

a description in order to prepare a photospread. The officer

testified that he received the description of the man as being a

"white male, approximately 53" to 5’5", dark hair, dark eyes or

AO 72A

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brown hair and brown eyes and that he had not shaven for a while.

(TT 104; App. 144). Hummel did not described the man as having a

mustache or a beard. (TT. 106; App. 146).

A photospread was displayed to Hummel. (See Commonwealth’s

Exhibit 11, App. 1190-1191 which depicts Burkett at number five

with a mustache and very light whiskers.) Hummel picked a picture

of Burkett from the photospread prepared by the Pennsylvania State

Police (Commonwealth’s Exhibit 11, App. 1190-1191).

Burkett was arrested two days after the attack on Hummel on

April 13, 1982 for the offense of burglary, criminal attempt

(rape), terroristic threats, simple assault, recklessly

endangering another person and harassment. Although Burkett did

not have a beard in the photo in the photospread shown to Hummel

at the time of his arrest, Burkett was photographed by the

Pennsylvania State Police (entered into evidence as Commonwealth’s

Exhibits 14 and 15; App. 1192-1193). In these photographs,

Burkett has a fully-grown beard.

Prior to the commencement of the preliminary hearing held on

April 22, 1982, in Burkett’s presence and before his counsel had

arrived, the arresting officer pointed to Burkett, who stood in

handcuffs, and asked Hummel: "Is this the guy that broke into your

home and attacked you?" Hummel hesitated and then responded

"Yes .* Approximately five minutes later, counsel for Burkett

arrived accompanied by the state magistrate and counsel’s

secretary. (Habeas Corpus Petition, Statement of Facts, pages

9-10; App. 482-483). At the preliminary hearing Hummel identified

KO 72A

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Burkett in a one-on-one show-up, and Burkett’s counsel never moved

to suppress the identification.

At trial it was learned during cross-examination that Hummel,

on the morning of the trial, had been shown two color photographs

of Burkett which were taken after his arrest (Commonwealth’s

Exhibits 14 and 15; App. 1192-1193). These photographs show

Burkett with a full beard, a feature never reported by Hummel in

describing her assailant. (Habeas Corpus Petition, Statement of

Facts, pages 10-13; App. 483-486). Despite this impermissible and

suggestive photographic display, Burkett’s counsel never moved to

have the in-court identification suppressed.

At trial, Officer Peacock testified that the complete

description he received of the actor from Hummel was a white male,

between twenty and twenty-five years of age, 5’2" to 5’5" and

approximately 115 to 120 pounds, wearing a dark jacket or vest and

jeans. (TT 96; App. 136). Z

Defense counsel on cross-examination questioned the officer

as to whether or not cases was a description of a beard.

According to the officer, Hummel was upset when he asked her and

said that she really wasn’t sure; although she dic not see a

beard, she thought there was facial hair. (TT 100; App. 140).

Hummel identified Burkett at trial as the assailant, but

identified that he had a "blue" beard at the time of the attack.

Aside from Hummel’s identification, there was no other evidence

that linked Burkett to the crime.

8/82)

At trial, Burkett testified on his own behalf and denied

committing the crimes. Burkett called his mother, his sister

Sonya, and his sister’s boyfriend, Mark Yanke, to testify on his

behalf. All of these witnesses fully corroborated his alibi.

Counsel for Burkett did not move before trial for a hearing

to determine whether the suggestive one-on-one confrontation

between Hummel and Burkett at the Magistrate’s hearing held April

22, 1982 so tainted her identification so as to make her

identification unreliable and inadmissible. Trial counsel was

made aware specifically that Hummel had seen Burkett in handcuffs

at this hearing and of the suggestive identification procedures

used by the police before counsel arrived, but did nothing to

safeguard Burkett’s rights to due process, and did not request a

hearing to suppress identification or photo spreads.

Burkett exhausted his state court remedies regarding this

issue of identification before the Pennsylvania Supreme Court, but

neither the district court nor the court of appeals granted

Burkett any relief. (See Court of Appeal’s opinion, App. 68-73).

Burkett has steadfastly and consistently asserted his

innocence regarding the crimes at No. 284 of Blair County.

On January 28, 1983, Burkett was convicted of all felony and

misdemeanor counts by a jury and, on January 31, 1983, the trial

court found him guilty of the charged summary offense. Burkett

filed timely post-verdict motions. Under Pennsylvania practice,

post-trial motions must be disposed of before a defendant is

sentenced. 2

After writing many letters to the trial judge, Judge Peoples,

the court administrator, and his attorney, Burkett filed a

petition for writ of habeas corpus with the Blair County Court of

Common Pleas on March 12, 1984. Burkett challenged his custody in

all three of his cases on the basis of speedy trial and due

process violations, because he had still not been sentenced. A

hearing on this petition was held on October 1984 and at the

conclusion of the hearing, Judge Brumbaugh announced that he would

| render a decision in one week on Burkett’s request for bail or on

| the question of habeas corpus relief. When no order was issued on

his habeas corpus petition after two months, Burkett filed for

| relief in the Pennsylvania Superior Court on December 12, 1984.

| Relief was ultimately denied by the Superior Court on August 28,

| 1985 and by the Pennsylvania Supreme Court on April 24, 1986.

Meanwhile, Burkett had also sought to raise the issue of his

counsel’s ineffectiveness at No. 284 in order to preserve that

issue ie atiig® . On September 6, 1984, Burkett filed a motion

concerning his counsel’s ineffectiveness. On January 23, 1985,

Burkett objected at the hearing on his post-verdict motions at No.

284 that his motion concerning ineffectiveness in that action had

2 Although the district attorney states on page 8 of his

petition that the delay was caused by overcrowded court dockets,

the Court of Appeals did not so find. (P-App. 31-33, 38). The

court administrator testified that the Blair County Courts

voluntarily closed during the months of July and August; and when

the court was open, one week per month per judge was reserved for

opinion writing time. (P-App. 56).

0 72A 7

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not yet been resolved, and Judge Peoples granted his motion to

continue that hearing until the issue of his trial counsel was

resolved.

On March 28, 1985, Burkett filed a petition for writ of

habeas corpus in the United States District Court for the Western

District of Pennsylvania at Civil Action 85-0769 charging that the

delay in sentencing in all of his cases violated his rights under

the Speedy Trial Clause.?

A Magistrate Judge was assigned this habeas corpus matter and

after requiring the district attorney to file an answer, filed a

Report and Recommendation on May 15, 1985, finding exhaustion

excused because of inordinate delay in sentencing Burkett. The

Magistrate Judge also found lengthy delay and that Burkett had

asserted his speedy trial rights and attributed no delay to

Burkett. The Magistrate Judge also found prejudice in that the

delay had "caused some loss to the petitioner." The Magistrate

Judge recommended to the district court that it would be

appropriate to schedule a hearing on Burkett’s post-trial motions

at No. 284 for the earliest possible date available in the Blair

County Court of Common Pleas.

The Magistrate Judge, therefore, recommended to the district

court that as to all of Burkett’s cases that the writ be denied,

"unless the Court of Common Pleas fails to dispose of the post-

trial motions and impose any appropriate sentence within sixty

3 The Court of Appeals for the Third Circuit construed

this petition to allege a due process violation as well. See

Burkett I, at 1212.

AO 724

(Rev. 8/82)

(60) days." The district court granted the parties ten days for

the filing of objections to the report, but no objections were

filed. The district court adopted the Magistrate Judge’s Report

and Recommendation as its opinion on May 30, 1985.

The Blair County Court did not appeal, but Burkett did. On

August 14, 1985, the court of appeals denied Burkett a certificate

of probable cause, without prejudice to filing a new petition in

the district court.

The Blair County Court of Common Pleas denied Burkett’s state

habeas corpus petition on June 6, 1985.

After denying his motion for new counsel at No. 284 on April

2, 1985, the court proceeded to deny his post-trial motions on May

8, 1985, some 29 months after these motions were filed, and to

sentence Burkett on June 24, 1985. Burkett received consecutive

sentences totaling 16 to 32 years, which according to the court

was the maximum permitted under law. But Burkett was still not

sentenced on his other two cases.

Burkett then filed two habeas corpus petitions on August 27,

1985 in the United States District Court for the Western District

of Pennsylvania at Civil Action No. 85-1966, referred to

hereinafter as No. 86-3074, the docket number in the court of

appeals. Burkett sought relief for delay at No. 284 and also

claimed that the federal court’s order giving the Blair County

Court sixty days to sentence him had exposed him to a severe

retaliatory sentence. At Civil Action No. 85-1965, No. 86-3121 in

the court of appeals, Burkett asserted similar claims concerning

his other two convictions at No. 140/141 of 1981 and No. 161 of

1981.

After the district attorney filed an answer, an evidentiary

hearing was eventually held on December 23, 1985. Following that

hearing on December 24, 1985, the Magistrate Judge recommended

dismissal for want of exhaustion as to the case at No. 284 in

Blair County. After timely objections by Burkett, the district

court adopted the Magistrate Judge’s Report as its Opinion on

January 15, 1986. Burkett filed a timely appeal.

With regard to his other two cases, the Magistrate Judge did

not hold an evidentiary hearing, but recommended dismissal for

want of exhaustion on the basis that the cases were being

processed for disposition by the Blair County Court and that

Burkett could proceed to the Pennsylvania Superior Court where the

merits cf the petition, including the issue of delay, could be

addressed. (App. 56).

On appeal by Burkett, the court of appeals in a published

Opinion, Burkett v. Cunningham, 826 F.2d i208 (3d Cir. 1987)

("Burkett I") agreed with Burkett’s legal position and the

district court, and held that the Speedy Trial Clause of the Sixth

Amendment applies from the time an accused is arrested up through

the sentencing phase of prosecution. See Burkett I at 1220.

The court of appeals, quoting Evitts v. Lucey, 469 U.S. 387

(1985), also held that the Due Process Clause requires that a

right to appeal is the right to an adequate and effective appeal

quoting this Court:

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The Due Process Clause thus protects not only

against delays in trial, including a

sentencing; it also guarantees a reasonably

Speedy appeal if the state has chosen to give

defendants the right to "attempt [] to

demonstrate that the conviction and the

consequence drastic loss of liberty is

unlawful."

Burkett I, 826 F.2d at 1221, quoting Evitts, 469 U.S. at 396.

The court of appeals described the delay in Blair County "as

ranging from excessive to monumental," and observed that the

problem of delay in Blair County "seems endemic." Burkett I at

1210.

On the merits, at Appeal No. 86-3121, the appeal that covered

* Burkett’s convictions at No. 140/141 of 1981, the court of appeals

noted that Burkett had been incarcerated well over six years

without a sentence, and that the Blair County Court had ignored a

federal court order to sentence Burkett. On this case, the court

of appeals remanded to the district court and ordered that the

district court issue the writ of habeas corpus forthwith and

discharge Burkett on those convictions. The district attorney did

not petition for a rehearing in the court of appeals or petition

this Court for certiorari respecting this ruling.

At No. 161 of 1981 of Blair County, Court of Appeal No. 86-

3121, the court of appeals held that because of the Blair County

trial court’s delay in filing of an opinion, which was a

precondition to Burkett’s right to proceed with his appeal,

Burkett’s due process rights to a timely appeal may have been

Violated. It remanded that case to the district court to make

10 72A

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factual findings as to whether Burkett had suffered any prejudice

because of the delay in processing his appeal. On remand the

district court, after a hearing, found that Burkett had suffered

prejudice and granted the writ as to No. 161 of 1981 ordering that

Burkett be discharged forthwith. (P-App. 13-14). The district

attorney did not appeal the district court’s order granting the

writ.

With regard to No. 284 of 1982 of Blair County, the court of

appeals held that because Burkett’s direct appeal in the

Pennsylvania appellate courts "appeared to be proceeding

normally," it would affirm the district court’s dismissal of that

case for lack of exhaustion.

After the Supreme Court of Pennsylvania denied allocatur on

Burkett’s appeal on his case at No. 284 of 1982, on December 28,

1987, Burkett filed a petition for habeas corpus at Civil Action

No. 88-1397 in the Western District of Fennsylvania. The district

court dismissed Burkett’s petition without an evidentiary hearing

and Burkett appealed because it viewed Burkett’s filing as

alleging only ineffectiveness of counsel, and denied Burkett’s

leave to amend his petition to aver violations of Speedy Trial

Clause and Due Process. On his appeal in the court of appeals at

89-3118, Burkett relied on the court of appeals opinion in Burkett

LT, 826 F.2d 1208 (3d Cir. 1987), for the proposition that his

Speedy trial and due process rights had been violated. The

district attorney in its brief in the court of appeals did not

seek to challenge the principles announced in Burkett I.

272A

ev. 8/82)

The court of appeals, in Burkett IT an unpublished opinion,

at No. 89-3118, dated August 7, 1990, R-App. 13a, at Court Appeals

No. 89-3118, August 7, 1990, reversed the district court’s

dismissal of Burkett’s petition holding that the district court

had erred in not allowing Burkett to amend his petition to allege

speedy trial and due process Claims. The district court was

ordered on remand by the court of appeals to follow the analysis

of Barker v. Wingo, 407 U.S. 514 (1972).

On remand to the district court, the Blair County district

attorney filed a brief. (R-App. 14a). His brief did not raise

the issue of whether the Speedy Trial Clause applies between

conviction and sentence. The district attorney merely averred

that the delay was caused by the motions Burkett filed asserting

his speedy trial rights and also by Burkett’s attempts to have

counsel appointed. In addition, the district attorney averred

that Burkett had not suffered any prejudice.

At no time during the hearing did the district attorney ever

raise the issue of whether the Speedy Trial Clause applies to the

time between the finding of guilt and sentencing. After the

evidentiary hearing, the district court ruled that Burkett had

been responsible, in part, for the delay by virtue of his motions

filed in the Blair County Court, and therefore any prejudice that

he experienced could not Support the granting of relief.

Burkett appealed to the court Of appeals. In his brief,

Burkett relied heavily on Burkett I. Burkett Stated quite clearly

the issue regarding the delay in his appellate brief:

Burkett’s rights under the Fifth, Sixth and

Fourteenth Amendment to the Constitution were

violated by the Commonwealth’s inordinate

delay in disposing of Burkett’s post-trial

motions, in imposing sentence, and in

processing Burkett’s appeal.

The district attorney in its brief in the court of appeals

which is set forth in its entirety as an appendix to this response

(R-App. 14a) did not challenge in any way the ruling that the

Speedy Trial Clause applied to delay in post-trial proceedings.

In fact, the district attorney specifically acknowledged the

applicability o. Barker v. Wingo, supra, stating at page 16 of its

brief as follows:

The BARKER V. WINGO, Supra. analysis has been

translated to the area of post trial motions

and sentencing thereto. BURKETT Vv.

CUNNINGHAM, 826 F.2d 1288 [sic], (3d Cir.

1987) citing RHEUARK V. SHAW, 628 F.2d 297

(Sth Cir. 1980), cert. den. 450 U.S. 931, 67

L.ed.2d. 365, 101 S.Ct. 1392 (1981). The

factors to be considered are 1) prevention of

oppressive incarceration pending appeal; 2)

minimization of anxiety over concern of those

convicted awaiting the outcome of their

appeals; 3) limitation of the possibility

that convicted persons’ grounds for appeal

and his or her defenses in case of reversal

on a retrial might be impaired.

The district attorney in its brief argued only that the

incarceration that Burkett suffered was his own doing and

therefore prejudice cannot "be found here;" and that minimization

of anxiety and concern cannot be found where Burkett had his bail

withdrawn so that he could claim credit for time-served when he

was sentenced. While the district attorney never challenged the

clearly enunciated ruling by the court of appeals that the Sixth

Amendment applies from the date of the finding of guilt to the

sentence, he attempts to do so here.

In its oral argument in the court of appeals, the district

attorney again did not challenge the principle that the Speedy

Trial Clause applies from the time of the finding of guilt.

In the opinion the court of appeals filed in this case,

Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991) ("Burkett

III") (P-App. 1-83), the court of appeals began its opinion by

again noting the saturated dockets and apparent strain on judicial

resources in Blair County give rise to an examination of whether

the state prisoner’s constitutional right to a speedy trial and

due process of law have been violated by delays in post-conviction

proceedings. In footnote one, the court of appeals notes four

previous cases in the United States courts based on the delay in

Blair County in disposing of criminal cases.

The court of appeals held that Burkett’s constitutional

rights to a speedy trial and to due process of law were violated

by delays in post-conviction proceedings. See page three of

Burkett ITI. The court of appeals applied the Barker v. Wingo

analysis to Burkett’s case and found that 38 1/2 months have

passed from arrest to sentencing, and, that 29 of those months

dated from the guilty verdict.

The court of appeals noted that while Burkett’s aggressive

petitioning of the Courts required additional paperwork,

scheduling of hearings and courtroom times, such actions were "not

unreasonable," in light of the fact that Burkett’s state habeas

10 72A

Rev. 8/82)

corpus petition was not scheduled for hearing for almost seven

months after its filing. The court of appeals pointed out that

Burkett’s state habeas corpus filing, rather than demonstrating

that Burkett contributed to the delay, instead, indicated that the

Blair County Court had a "general inability" to process its

criminal dockets ina timely fashion. The court of appeals also

found, as did the district court, that Burkett’s assertion of his

rights heavily weighs this factor in his favor.

The court of appeals found prejudice from the fact that

Burkett was unable to avail himself of institutional programs,

critical to his rehabilitation, available through the state but

not the county penal system, and the fact that Burkett lost

visitation privileges that he could have obtained in the state

system as opposed to the county system, along with uncontradicted

evidence of anxiety and emotional distress; as a result, the court

of appeals found that relief was appropriate under Barker and its

progeny.

The court of appeals then analyzed Burkett’s claims under the

Due Process Clause to determine whether a violation occurred

because of appellate delay. Here again, the court of appeals

found that the length and cause of the delay weighed against the

government and in favor of Burkett. Moreover, Burkett’s assertion

of his rights strongly tipped the scale in Burkett’s favor. (P-

App. 60). As to the prejudice factor, the court of appeals found

that although Burkett’s evidence was less than overwhelming, it was

satisfied that Burkett demonstrated a genuine loss, cumulative in

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nature because of the delays in the post-conviction processing of

his case both at the trial court level and through the appellate

process.

Finally, the court of appeals found that it could fashion

alternative relief to the relief that Burkett sought, which was

discharge from incarceration. The court of appeals relying on

Title 28 U.S.C. §2243(a) and Strunk v. United States, 412 U.S. 434

(1973) and Hilton v. Braunskill, 481 U.S. 770 (1987), held that it

had the authority to fashion an appropriate remedy for the

prejudice suffered by Burkett. Therefore, the court of appeals

ordered that the case be remanded to the district court with

instructions to grant the writ, imposing the remedy it fashioned

to alleviate the specific prejudice suffered. The court of

appeals ordered that the Burkett sentence be reduced by 39 months.

The district attorney did not file a petition for rehearing

or rehearing en banc. After waiting 48 days, after the date of

the decision, he applied for a recall of the mandate to allow the

district attorney to file a petition with this Court. The court

of appeals granted the district attorney’s motion to recall the

mandate.

Burkett is incarcerated serving his sentence at No. 284 of

1982 of Blair County in the State Correctional Institution at

Huntingdon, Pennsylvania.

)72A

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SUMMARY OF THE REASONS FOR DENYING

THE WRIT OF CERTIORARI

Burkett asserts that the court of appeals for the Third

Circuit fully considered the issues raised by the parties and

correctly decided those issues including the proper relief to be

granted to Burkett.

In neither the district court nor the court of appeals did

the district attorney question the rulings made by the lower

courts that the petitioner seeks to have this Court review.

Therefore, it is Burkett’s submission that the petitioner has

waived his rights to challenge that ruling here. See Springfield

v. Kibbe, 480 U.S. 257, 259 (1987); California v. Taylor, 353 U.S.

553, 556 fn.2 (1957).

Significantly, although the petitioner argues that this Court

should accept this case for review, he does not set forth in his

petition where he raised the question in the courts below that he

seeks to raise here. The reason for this omission is because he

never objected to the Speedy Trial Clause being applied to

Burkett’s case either in the district court or the court of

appeals, but merely argued that Burkett had caused the delay and

had not been prejudiced by the delay.

Although this case arises out of a matrix of the three cases

between the same parties and the district attorney of Blair County

was the answering respondent in all three cases he did not object

even in the first case where the court of appeals announced that

(Re

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it was adopting the position set forth by Burkett in the district

court that the Speedy Trial Clause applies to the period from the

date of adjudication of guilt to the time of sentencing. See

Burkett I. Even though the respondent had ample opportunity

through three separate habeas corpus actions involving Burkett,

where Burkett claimed that his rights under the Speedy Trial

Clause and due process were violated because of the delay in

imposition of sentence, the district attorney did not challenge

that proposition either in the district court or the court of

appeals.

Therefore, it is Burkett’s submission that the petitioner has

waived his right to present this issue here.

il.

Burkett also submits that the decision by the court of

appeals arose from a particularly unique factual matrix that

required the court of appeals to deal with the endemic problem of

delay in the Blair County Court and that because that problem is

now unlikely to recur, there is no reason for this Court to

exercise its discretion to review this case. As recited by the

court of appeals in its decision, (P-App. 2-3, fn.1) many federal

habeas corpus petitioners had challenged in constitutional terms

the delay caused by the Blair County Courts in the processing of

their cases. Therefore, the court of appeals was dealing with

problem where the constitutional rights of incarcerated citizens

272A

ev. 8/82)

were being violated due to the indifference of the Blair County

Courts and the Commonwealth of Pennsylvania.

Moreover, Burkett avers that the decision of the court of

appeals rests on both Speedy Trial Clause grounds and Due Process

grounds and was designed to correct the unconscionable and

unconstitutional delay occurring in the Blair County Courts, that

the Commonwealth of Pennsylvania was not redressing. Hence, it is

Burkett’s position that even if this Court were to address the

Speedy Trial Clause aspect of the case, on remand, the court of

appeals might well find that Burkett’s rights under the Due

Process Clause were violated to such an extent that the remedy

would remain the same. The district attorney has never challenged

the case on the ground that the Due Process Clause did not protect

the time between adjudication of guilt and sentence. See Evitts

v. Lucey, 469 U.S. 387 (1985). This Court may of course sustain

a judgment of the court of appeals on any ground on which it finds

Support in the record. Hence, because the court of appeals’

decision rests on alternative grounds, a decision by this Court in

this case may have no effect on the outcome.

Tit.

There is no substantial division of authority on the question

that the petitioner seeks to have this Court review. Although the

petitioner acknowledges that all the federal cases that have been

presented with this issue have determined that the Speedy Trial

172A

Vv. 8/82)

Clause does apply to the delay between adjudication and sentencing

and that there are only a few state cases that substantially

disagree with the holding of the Third Circuit that the Speedy

Trial Clause does apply to the delay between adjudication and

sentencing, he would have this Court grant review of this case to

clear up confusion in the state and federal courts: confusion that

Burkett submits does not exist. see Infra, p. 29. Therefore,

because there is no substantial division of authority on the

question presented there is no need for review of the questions

presented for this Court at this time.

IV.

The collateral issues of the prejudice suffered by Burkett

and the proper remedy to correct that prejudice were fully

considered and correctly decided by the court of appeals.

Under Moore v. Arizona, 414 U.S. 25 (1973), the prejudice

suffered by virtue of the delay need not be to the petitioner’s

rights at retrial but may be personal to him. Such was the case

here. The court of appeals, based on the uncontested facts in the

record, found that Burkett did suffer from the delay because the

delay caused him great anxiety, and emotional distress as

manifested by the change in his behavior and his crying outbursts

and the delay prevented him from participating in beneficial

rehabilitative programs that he could not obtain while in the

county jail and which were available to him in the state prison

> 72A

ev. 8/82)

system, post sentencing.

The remedy crafted by the court of appeals went no further

than necessary to correct the constitutional violation and the

court of appeals authority to fashion this remedy is support by

both the habeas corpus statute 28 U.S.C.A. §2241(a) and §2243,

Strunk v. United States, 412 U.S. 434 (1973). Therefore it is

Burkett’s position that this Court should deny the petition for

writ of certiorari.

) 72A

>v. 8/82)

REASONS FOR DENYING THE PETITION FOR WRIT OF CERTIORARI

THE PETITIONER HAS WAIVED HIS’ RIGHT TO

CHALLENGE THE ISSUE THAT HE SEEKS TO HAVE

THIS COURT REVIEW.

It is clear that the respondent District Attorney of Blair

County (hereinafter referred to as the "district attorney") never

raised in either the district court or the court of appeals the

question which he now seeks to have this Court review: Whether

the Speedy Trial Clause applies from the time of the finding of

guilt to the time of sentencing.

In Burkett I, the district attorney did not challenge the

proposition that Burkett clearly set forth in his brief: that the

Speedy Trial Clause applies to the time from the date of the

finding of guilt to the date of sentence. (See district

attorney’s brief filed in Burkett III in response to Burkett’s

brief in the United States Court of Appeals. (R-App. 14a)). As

a result, the court of appeals clearly announced in Burkett I that

it was remanding Burkett’s case at No. 140-141 for the district

court to order Burkett’s discharge because he had not been

sentenced in over six years and therefore his speedy trial rights

were violated. Burkett I at page 1224-1225. The district

attorney had not objected to the Magistrate Judge’s report in the

district court, as noted by the court of appeals in Burkett I at

page 1223. Therefore, the court of appeals merely affirmed the

district court’s order which conditionally granted the writ and

made it unconditional because Blair County had not acted after

being ordered to do so by the district court.

On the remand at No. 161 after Burkett I, the district

attorney again had an opportunity to raise the issue it seeks to

raise here, but did not do so. In that case, after findings by

the district court, Burkett was ordered discharged due to

violations of Burkett’s due process rights because he had not been

sentenced promptly. (See P-App. 13-14). The district attorney did

not appeal that order to the court of appeals.

Finally at No. 284 of Blair County, after Burkett had

exhausted his state remedies in accordance with the order of the

court of appeals in Burkett I, Burkett filed his second petition

at Civil Action No. 88-1397. There the district attorney never

disputed that the Speedy Trial Clause did not apply to the delay

between the time of the adjudication of guilt and his sentencing.

(See Petitioner’s Answer in district court, R-App 9a, 11a)

In the court of appeals following the denial of his habeas

corpus rights, the district attorney did not raise the issue that

the Speedy Trial Clause or the Barker v. Winao analysis did not

apply to determine if Burkett’s rights were violated. After

Burkett’s appeal in that case, the court of appeals in an

unpublished opinion held that the district court had erred in not

allowing Burkett to amend his petition to aver speedy trial and

due process violations and remanded to the district court with

directions that the analysis of the Barker v. Wingo to be applied

to determine if Burkett’s speedy trial rights had been violated.

72A

/, 8/82)

In the district court, the district attorney filed a brief, (R-

App. 12a). In its brief in the district court, the district

attorney did not raise the issue of whether the Speedy Trial

Clause applies at the time between the adjudication of guilt and

the time of sentence.

The Magistrate followed the Barker v. Wingo analysis and

determined that Burkett’s rights had not been violated. The

district attorney did not file any objections to the Magistrate’s

Report arguing the issue that the Sixth Amendment Speedy Trial

Clause did not apply.

Finally, on appeal, in answer to Burkett’s brief, the

district attorney did not even hint that it wished to litigate the

question of whether the Sixth Amendment Speedy Trial Clause

applied to the time between the adjudication of guilt and the time

of sentence. (R-App. 14a). Following the court of appeals

decision in this case, the district attorney did not file a

petition for rehearing or a petition for rehearing en banc

challenging the Court’s analysis based on the premise that the

Sixth Amendment Speedy Trial Clause applies to the time between

the adjudication of guilt and sentencing.

To demonstrate clearly that this issue is not raised in the

district court or the court of appeals, this Court need only

examine the majority and the dissenting opinion in Burkett Ill,

where both accept Burkett I as settled law, and note that there is

no challenge thereto.

3/82)

Under this Court’s long-standing precedents it will

ordinarily not consider questions that have not been raised or

litigated in the lower courts. Sprinqfield v. Kibbe, 489 U.S.

257, 259 (1987); California v. Taylor, 353 U.S. 553, so6, fn. 2,

(1957). Like the respondent in Springfield, su ra, Burkett

strenuously objects to the petitioner’s raising this question at

the first point that Burkett was put on notice that it was an

issue in the case. See Springfield, at 260. Accordingly, as the

district attorney raised the question he seeks to have this Court

review for the first time in this Court, this Court should follow

its well-settled precedents under the doctrine of waiver to deny

the petition for certiorari.

O 72A

fev. 8/82)

ii.

THIS COURT SHOULD DENY THE PETITION BECAUSE

THE DECISION OF THE COURT OF APPEALS

ADDRESSED AN UNUSUAL SET OF FACTS, WHICH IS

UNLIKELY TO RECUR.

The court of appeals has recited in its opinion that it was

faced with a recurring problem regarding the denial of prisoner’s

speedy trial rights and due process rights in the adjudication of

their criminal cases. As noted by the court of appeals, this is

just one case out of three where Burkett’s rights have been found

to have been violated and Burkett was only one of several habeas

corpus petitioner’s who had brought the problem to the federal

courts that arose through Blair County’s total indifference to the

rights of criminal defendants to have their claims disposed of

within a reasonable time. (P-App. 2-3).

Furthermore, the decision of the court of appeals in granting

relief did not rest solely on the Speedy Trial Clause of the Sixth

Amendment, but also on the Due Process Clause of the Fourteenth

Amendment.

Hence even assuming arguendo that this Court were to find

that the Sixth Amendment Clause did not apply to the delay between

the finding of guilt and the sentence, the court of appeal’s

decision would not necessarily be reversed because it could be

upheld on the ground that Burkett’s rights under the Due Process

Clause were violated, and this would lead to the same result and

remedy. See Evitts v. Lucey, 469 U.S. 387 (1985), This Court, of

course, may uphold the court of appeals’ decision on any ground

that supports the judgment of the lower court. Brown v. Allen,

-S. 443, 459 (1953). Therefore, the issue that the

os)

petitioner here attempts to raise for this Court’s review was not

the sole basis for the court of appeals’ decision. Instead, that

decision rests on alternative due process grounds. Hence, for

these reasons, the petition should be denied.

AO 72A

(Rev. 8/82)

Iil.

THIS COURT SHOULD DENY THE PETITION BECAUSE

THERE Is NOT SUBSTANTIAL DISAGREEMENT

CONCERNING THE QUESTION PRESENTED IN EITHER

THR FEDERAL OR STATE COURTS.

FEDERAL COURTS

In Pollard v. United States, 352 U.S. 354 (1957), the

petitioner filed a federal habeas corpus action pursuant to 28

U.S.C. §2255 arguing that he had been illegally sentenced because

the district court had imposed sentence after he was removed from

the courtroom for two years. A judgment order had been entered on

the record sentencing him to probation. Two years later, upon the

district court finding that Pollard violated his probation, it

vacated its earlier order of sentence and sentenced the petitioner

to two-years imprisonment.

The petitioner argued, inter alia, that his Sixth Amendment

right to a speedy trial was violated because of the delay in

sentencing him. This Court stated at 361:

We will assume arquendo that sentence is part

of the trial for purposes of the Sixth

Amendment."

This Court then held that whether delay in completing a

prosecution violates constitutional rights depends on _ the

circumstances. In Pollard, the court found that the delay was not

O72A

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purposeful or oppressive but was accidental and promptly corrected

when discovered. The court therefore denied Pollard relief.4

In applying the Pollard dictum, the courts of appeals have

uniformly and consistently held that the speedy trial provisions

of the Sixth Amendment include sentencing delays.

As recently as 1986, the Court of Appeals for the Tenth

Circuit noted that "no federal court has held that sentencing is

not within the protective ambit of the Sixth Amendment right to a

speedy trial." Perez v. Sullivan, 793 F.2d 249, 253 (10th Cir.

1986). (emphasis added}. One year later, in Burkett I, the Third

Circuit, citing Perez, confirmed that all of the federal courts

which have addressed this issue have followed Pollard and held

that sentencing delays are covered by the Sixth Amendment’s Speedy

Trial Clause. Burkett, 826 F.2d at 1220. Research has confirmed

that in the case law before, as well as after, Perez and Burkett

I, no circuit has held that sentencing delays are excluded from

coverage under the Sixth Amendment. >?

4 Burkett’s case is clearly distinguishable from Pollard

because Burkett did call attention to the error being made by the

Blair County in not disposing of his post-trial motions, in not

sentencing him and in not filing an opinion which thwarted his

appellate rights.

S See Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987);

Perez v. Sullivan, 793 F.2d 249, 253 (10th Cir. 1986);

Tinghitella v. California, 718 F.2d 308, 312-13 (9th Cir. 1983);

Cobb v. Aytch, 643 F.2d 946 (3d Cir. 1981); Katz v. King, 627 F.2d

568, 576 (1st Cir. 1980); United States v. Merrival, 600 F.2d

717,720 (8th Cir. 1979); United States v. Campisi, 583 F.2d 692,

694 (3d Cir. 1978); United States v.Howard, 577 F.2d 269, 270 (5th

Cir. 1978); United States v. Reese, 568 F.2d 1246, 1253 (6th Cir.

1977); United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir.

1976), cert. den’d 434 U.S. 851 (1977); Juarez-Casares v. United

States, 496 F.2d 190, 192 (Sth Cir. 1974); Brady v. Superintendent

) 72A

ev. 8/82)

One of the cases which has adopted Pollard provides insight

into why the Sixth Amendment should be interpreted so as to

include sentencing delays:

It would be a strvined construction of the

speedy trial clause to hold that it protected

the right to a prompt trial but permitted

indefinite postponement of sentencing of a

defendant unable to make bail.

Cobb _v. Aytch, 643 F.2d 946, 962 (3d Cir. 1981).

Anne Arunder County Detention Center, 443 F.2d 1307 (4th Cir.

1971); United States v. Sherwood, 435 F.2d 867 (10th Cir. 1970).

272A

ev. 8/82)

STATE COURTS

The district attorney states in its petition that many state

courts, "like the federal courts, simply perpetuated the Pollard

assumption without further analysis". (emphasis added). The

petition then cites cases which the district attorney claims

support this statement.

Contrary to the district attorney’s brief several of the

cases cited go to great lengths to discuss the underpinnings of

the right to a speedy sentencing under the Sixth Amendment right

to a speedy trial. Many of the remaining state cases cite either

federal cases or reasoned state opinions as the basis for finding

the existence of the constitutional right.

The state cases which have dealt with the issue of whether

sentencing is a part cf the Sixth Amendment Right to a Speedy

Trial can be placed into three categories. In the first category

are those states which have adopted either the Pollard

assumption” or develop a reasoned opinion or follow one of the

Pa. - Commonwealth v. Pounds, 490 Pa. 621, 417 A.2da 597

(1980). (also found that the Due Process Clause was

implicated).

Del.- Johnson v. State, 305 A.2d 622 (Del.Sup.1973) cert.

dismissed 413 U.S. 901 (1973).

Ala.- Noe v. State, 391 So.2d 151 (Ala.App.1980).

N.C.- State v. Avery, 95 N.C.App. 572, 383 S.E.2d 224 (1989)

(does not apply to resentencing).

Miss.- Yates v. State, 342 So.2d 312 (Miss.1977).

Mass.- Commonwealth v. Bianco, 390 Mass. 254, 454 N.E.2d 901

(1983) (Case presented mixed question with Mass. state law.

Due Process Clause also implicated at sentencing.)

272A

ev. 8/82)

reasoned state or federal cases which have found such a right’.

This view is held by fourteen state appellate courts.

The second view is that the Sixth Amendment does not

encompass a right to a speedy sentencing. This view is held by

only four state courts® and one court assumes without discussion

that a right to speedy sentencing does not exist?. Most of these

courts, however, apply the Fourteenth Amendment and due process

rights to sentencing.

Mo. - State v. Haslip, 583 S.W.2d 225 (Mo.App.1979).

Wash.- State v. Braithwaite, 34 Wash.App. 715, 667 P.2d 82

(1983). (Another division of the Wash.App. court held that

there is no right to a speedy sentencing in State v. Lammert,

540 P.2d 466 (Wash.App.1975)).

Miss. - Yates v. State, 342 So.2d 312 (Miss.1977).

Mich. - People v. McIntosh, 103 Mich.App. 11, 302 N.W.2d 321

(1981)

Alaska Gonzales v. State, 582 P.2d 630 (Alaska 1978).

Vermont State v. Dean, 536 A.2d 909 (Vt.1987).

California People _v. Domenzain, 161 Cal.App.3d 619, 207

Cal.Rptr. 724 (4 Dist. 1984).

Utah State v. Banks, 36 Utah.Adv.Rep.7, 720 P.2d 1380 (1986)

(Speedy trial rights encompass the time during which the

matter is under consideration by trial court.)

Iowa - State v. Drake, 259 N.W.2d 862 (Iowa 1977), ovrld by

State v. Kaster, 469 N.W.2d 671 (Iowa 1991). (Court finds a

Due Process right to speedy sentencing but this issue was not

raised by the petitioner in this case).

La. - State v. Johnson, 363 So.2d 458 (La.1978).

Kan. - State v. Freeman, 236 Kan. 274, 689 P.2d 885 (1984).

Va. - Walker v. Commonwealth, 4 Va.App.286, 356 S.E.2d 853

(1987).

9 Texas - Ramos v. State, 486 S.W.2d 297 (Tex.Crim.1972).

(The only reference to any right is that "there has been no delay

to a person presumed innocent in the present case because

appellant had already been convicted.")

072A

ev. 8/82)

(foe. OOOO

States that have adopted the third view have not ruled on

whether the Sixth Amendment right to a speedy trial includes the

sentencing phase. This view has been taken by eight states.

These states have either looked to the Due Process Clause of the

Fourteenth Amendment to decide the case at hand!® or have looked

to state law or constitutions;11 or state that the trial court

had lost jurisdiction because of the delay;12 Or have refused to

decide the issuel3,

W.Va.- Ball _v. Whyte 294 S.E.2d 270 (W.Va.1982).

Fla. - Lee v. State, (Fla.App.1lst Dist.1986).

Wyo. - Despain_v. State, 774 P.2d 77 (Wyo.1989). (This

opinion does a nice display of the state of the law in 1989.

The court then refuses to adopt a position in the case before

it. The court does recognize a Due Process Right to a speedy

sentence and states that this right is embodied in state

statutes.

Md. - Erbe v. State, 276 Md. 541, 350 A.2d 640 (1976) (Case

decided on the Maryland Constitution Article 21 and the Due

Process Clause of the Fourteenth Amendment. )

Oregon - State v. Custer, 240 Or. 350, 401 P.2d 402 (1965)

(State habitual criminal proceedings are not part of an

original criminal trial for the principal offense and thus is

not covered by any speedy trial right.)

People v. Harper, 520 N.Y.S.2d 892, 137 Misc.2d 357 (1987).

(Court discusses and holds that speedy trial right

encompasses pre and post trial motions. Court finds that

there can be an independent violation of the New York

Constitution. Court finds that the prosecution was abandoned

and therefore the trial court lost jurisdiction to sentence

the defendant).

213

Arizona - State v. Steelman, 126 Ariz. 19, 612 P.2d 475

(1980) cert. denied 449 U.S. 913 (1980). (After discussing

the Sixth Amendment, the court refused to take a position.)

N.J. - State v. LeFurge, 222 N.J.Super. 92, 535 A.2d 1015

(N.J.1988) (Court states that where a person is not subject

)72A

2v. 8/82)

The primary state case in the first view is Gonzales v.

State, 582 P.2d 630 (Alaska 1978). The district attorney

incorrectly cites this as one of the cases which adopts the

Pollard reasoning. The Gonzales court, after reciting seven

policy considerations for a speedy triall4, determined that five

of the reasons applied directly to sentencing. Even though the

list of reasons discussed are not exhaustive, the court concluded

that a constitutional right exists to a speedy sentencing.

to liberty restraints the Sixth Amendment right to a speedy

trial in not affected. citing U.S. v. Loud Hawk, 474 U.S. 302

(1986).

14 This Court discussed the interests presented in Dickey v.

Florida, 398 U.S. 30, 39 (1970) (Brennan and Marshall, JJ.,

concurring), a case which preceded Barker v. Wingo. It summarized

the points as follows:

l. Spare the accused those penalties and disabilities

incompatible with the presumption of innocence which may

spring from delay in the criminal process;

as Prevent undue and oppressive incarceration prior to

trial;

36 Minimize anxiety and concern accompanying public

accusation which might chill the accused’s free speech or

association with the unpopular causes;

4. Impair the accused’s ability to present a defense due to

death or unavailability of witnesses or dulled memories,

etc.;

5. Minimize the possibility that the accused, while on bail

pending trial or appeal may commit another dangerous crime;

fo.)

Minimize delays which might adversely affect the

government’s ability to prosecute the case;

7. Penalize official abuse or lawlessness and encourage the

fair and expeditious administration of justice.

The Gonzales court found all but the first and sixth

considerations to be implicated at the sentencing phase.

Many of the cases cited by the district attorney as not

discussing the constitutional background of a right to a speedy

sentencing under the Sixth Amendment cite the reasoning

established in Gonzales. The case of State of New Hampshire ex.

rel. McLellan, 127 N.H. 33, 498 A.2da 735 (1985) (Souter J.) after

discussing the policy reasons for speedy sentencing finds such a

guarantee to exist in the New Hampshire, Constitution Art. 14.,

and finds the court that these same policy arguments apply under

| the Federal Constitution.

The reasoning in both the Gonzales and McLellan opinion were

| cited by the Supreme Court of Vermont in State v. Dean, 536 A.2d

909 (Vt.1987) when it held that the speedy trial guarantee applies

to sentencing.

The majority of courts which have addressed this issue have

| found a right to speedy sentencing under the Sixth Amendment of

| the United States Constitution, and only a small minority of state

| courts have adopted the opposite view.

AO 72A

Rev. 8/82)

IV.

THE COURT OF APPEAL’S REMEDIES TO ALLEVIATE

PREJUDICE WERE BOTH LEGAL AND PROPER GIVEN

THE FACTS PRESENTED IN THIS CASE.

The court of appeals properly found that Burkett suffered

prejudice under Moore v. Arizona,supra and Strunk v. United

States,supra. The petitioner argues here that the court of

appeals did not distinguish between prejudice before trial and

prejudice in the post-conviction context and this Court should

grant the writ to address this collateral issue. (Petition for

Writ of Certiorari, page 28).

The court of appeals correctly noted that other courts of

appeals have applied the Barker analysis to delays in post-

conviction proceedings. United States v. Reese, 568 F.2d 1246,

1253 (6th Cir. 1977); United States v. Campbell, 531 F.2d 1333

(Sth Cir. 1976), cert. denied., 434 U.S. 851 (1977); Perez v.

Sullivan, 793 F.2d 249, 254 (10th Cir. 1986).

The court of appeals caretuliy considered the delay as

prejudice under both tHe Speedy Trial Clause and the Due Process

Clause. See court of appeals’ opinion specifically at P-App. 45-

54 and 58-61). While the court of appeals distinguished between

the prejudice under the Sixth Amendment and the prejudice under

the Due Process Clause, it viewed them cumulatively as to the

effect on Burkett’s emotional state.

The petitioner argues then with the facts as found by the

court of appeals based on the uncontested facts in the recora.15

The district attorney flatly states that Burkett’s assertion of

"anxiety" is bogus (Petition for Writ of Certiorari, page 30) and

that the state could not present contrary evidence of such self-

serving subjective assessments. But the petitioner is simply

trying to justify his failure to present any contrary evidence on

Burkett’s emotional state in the district court.

The district attorney had ample means to contradict the

evidence presented by Burkett, if any such evidence existed, by

presenting Burkett’s cellmates, the guards from the county jail

and even Burkett’s court-appointed lawyers, who had been removed

when they did not act to move his case forward.

The district attorney simply failed to present any evidence

to rebut Burkett’s evidence of emotional deterioration as a result

of the delay in his case. The district attorney having failed to

present --evidence on this point now Simply calls Burkett’s

assertion of anxiety "bogus."

Furthermore, the petitioner simply ignores the fact that

every court that ever examined Burkett’s claims has found, and, as

the district attorney conceded in the district court and the court

15 The petitioner incorrectly states that the Court of

Appeals found prejudice based on the dimming of Burkett’s

witnesses at retrial. But the court of appeals did not find

prejudice on that ground. It specifically noted that in Moore v.

Arizona, 414 U.S. at 26-27, this Court rejected a reading of

Barker to confine prejudice to prejudice at retrial and instead

recognized personal prejudice as being legal prejudice in this

context. See also the Court of Appeals’ discussion of prejudice

at appendix page 58-61.

172A

ev. 8/82)

of appeals, that Burkett, time after time asserted his rights to

a speedy disposition in every conceivable way short of rioting in

the prison: appeals in the Superior Court of Pennsylvania, habeas

corpus petitions in Blair County, and federal habeas corpus

actions. Certainly one can well imagine the anxiety that preceded

and accompanied these actions and the anxiety that was brought

about by subjecting himself to retaliation from the Blair County

judge when he finally did come up for sentencing.

The petitioner does not heed the admonition by this Court and

recognized by the court of appeals that the assertion of the right

to a speedy trial is entitled to great evidentiary weight on the

issue that his rights are being violated, (P-App. 60) where the

court of appeals stated "Burkett’s assertion of his right strongly

tips the scale in Burkett’s favor." This statement by the court

of appeals follows this Court’s admonition in Barker that the

assertion of the defendant’s right to a speedy trial is entitled

to great evidentiary weight:

The more serious the deprivation, the more

likely a defendant is to complain. The

defendant’s assertion of his speedy trial

right, then, is entitled to strong

evidentiary weight in determining whether the

defendant is being deprived of the right.

See Barker v. Wingo, 407 U.S. at 531-532.

The petitioner als attempts to raise in its petition,

although not presented as a formal question, the court of appeals

treatment of the reason for delay. The petitioner argues that the

Constitution cannot possibly require a "short-strapped county" to

devote as much of its judicial resources to post-trial matters as

it does to pretrial matters because those accused of crimes must

be dealt with first.

But the court of appeals pointed out that Blair County did

not devote its resources to either pre-trial matters or post-trial

matters, it simply ignored both, as evidenced by the facts recited

in Burkett I at 1212, that the district attorney sought several

continuances of Burkett’s case over Burkett’s objections before

trial of this case.

Secondly, the court administrator observed the courts of

Blair County closed down for two months in the summer while

Burkett’s post-trial motions were pending. (P-App. 56). Burkett’s

state habeas corpus petition was thus ignored for seven months

despite the judge’s promise that a decision would be rendered

within a week. (P-App. 38).

The petitioner here acts as if Burkett’s case occurred in

isolation from other cases, but in fact the entire delay problem

in Blair County Courts lead to numerous cases involving denial of

speedy trial rights and due process violations, as recited by the

court of appeals. (See court of appeals opinion, P-App. 3-4).16

16 The petitioner argues in footnote 15 on page 37 that the

Pennsylvania Appellate Courts frequently resolve appeals without

waiting for an opinion in the lower court. The petitioner ignores

Commonwealth v. Kinsel, 403 Pa.Super. 67, 588 A.2da 34 (1991),

which held in an appeal involving complex issues as were presented

in Burkett’s case, that the case had to be remanded in order for

the trial judge to file an opinion in conformance with Rule

1925(a) of the Pennsylvania Rules of Appellate Procedure.

O 72A

tev. 8/82)

The problems faced by the court of appeals in this case was

an endemic problem involving the Blair County Court either

ignoring the orders of the federal court, and after even being

made aware of the disposition of the court of appeals was going to

invoke as announced in Burkett I, chose to ignore delay problems

that were occurring and to close their courts for two months in

the summers.

The petitioner, as a representative of the Commonwealth of

Pennsylvania, is ill placed to complain when the court of appeals

have to take time from its busy dockets to address problems and

effectuate remedies for constitutional violations caused by the

delay in the Blair County courts, that occur even after the court

of appeals has addressed the problems many times, and when the

Commonwealth, through its legislature and appellate courts could

readily have addressed these problems.

The district attorney states on «page 9 of its petition that

the cause of the backlog in Blair County is the shortage of judges

and that shortage could only be rectified by the state

legislature.

The court of appeals did not find that the shortage of judges

caused the delay in Blair County, but that it was caused by

mismanagement and the fact that the Blair County court was closed

for two months every summer. (See court of appeals opinion at P-

App. 31-33, 38). Even assuming that the state legislature was at

fault, this does not excuse the state’s violation of Burkett’s

constitutional rights to a speedy trial and due process. (See

AO 772A

Rev. 8/82)

Barker, 407 U.S. at 531, where this Court stated that overcrowded

courts should be weighed less heavily, but nevertheless be

considered because the ultimate fesult of such circumstances must

rest with the government rather than with the defendant.)

In his dissenting opinion, (P-App. 79, 81) Judge Alito

expresses dissatisfication with the majorities reliance on

Burkett’s testimony on the issue of prejudice. He seems to be

advocating a higher standard of proof when passing on the question

of prejudice to criminal defendants. Certainly, Burkett was

competent to testify concerning his emotional distress and anxiety

and its subjective manifestations, as well as, the availability of

programs at different institutions where he was incarcerated.

Certainly the Commonwealth had the opportunity to rebut this

testimony as to the prison programs, but it chose not to do so.

It also had the right to object to the competency of Burkett to

testify as to matters concerning his emotional distress, but it

did not do so. Had the Commonwealth objected and that objection

been sustained, Burkett could have taken steps to secure other

admissible evidence from more objective sources.

On page 38 of his petition, the district attorney states

flatly that as in the pre-accusation setting, delays after

conviction should not entitle a defendant to challenge "his

otherwise proper judgment absent an intent by the state to gaina

tactical advautage." Such a rule would require that the court

overrule Evitts v. Lucey, 469 U.S. 387 (1985) and Griffin v.

Illinois, 351 U.S. 12 (1956), which established procedural due

AO 72A

(Rev. 8/82)

process safeguards for criminal defendants, not only at the trial

level, but also on their appeals as of right. See Burkett I at

1219.

As this Court stated in Barker, a delay even if not

intentional on the part of the state still weighs against the

state. The suggestion by the district attorney that only

intentional delay to gain a tactical advantage by the state would

allow the state to simply ignore the defendant once found guilty

until he died or was released. Such a rule would emasculate the

federal courts from protecting criminal defendants from the total

indifference by the state regarding their rights to be promptly

sentenced and would thwart their rights to appeal. Certainly, the

Due Process Clause must insure that criminal cases are brought to

a meaningful and prompt conclusion.

The due process rules laid down by this Court are not only

designed to safeguard criminal defendants from a state’s gaining

a tactical advantage, but also to protect defendants from the

state’s deliberate indifference in processing their criminal

cases. Here, even in the face of many protestations by Burkett

regarding the delay, which alerted the state to its constitutional

obligations, the state’s apparatus simply chose to ignore his

constitutional rights. That is the essence of the violation found

in Burkett I and Burkett III and why Burkett is entitled to the

relief granted by the court of appeals.

CONCLUSION

For the foregoing reasons the petition of the district

attorney of Blair County for writ of certiorari should be denied.

Respectfully submitted,

rf f /, siJ/TS)

VA a ee (a0 dm.

THOMAS S. WHITE bil

Federal Public Defender

Counsel of Record

KAREN SIRIANNI GERLACH, Assistant

Federal Public Defender

DENNIS M. STEFAN, Esq.

10 72A | 44

Rev. 8/82) |

CERTIFICATE OF MEMBERSHIP IN BAR

I, THOMAS S. WHITE, Federal Public Defender, hereby certify

that I am a member of the Bar of this Court.

~ *—

THOMAS S. WHITE

Federal Public Defender

AO 72A

Rev. 8/82)

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D.%2:

Relief

pOoLLES

5 -« . ‘

Respe + $55) Veep submitted

COW ~ vee y MUM hie we YOU,

By re mr

i ar r solire

ae te Oe bey MOYUULLS

Ae & Awe, Roannan +

mAveVilil as ~pvVil asl

é‘ .

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WAYNE PAUL BURKETT, Petitioner )

)

Vv. ) Civil Action No. 85-1965

)

RICHARD CUNNINGHAM, Respondent

AMENDED PETITION FOR WRIT OF HABEAS CORPUS

PURSUANT TO 28 U.S.C. SECTION 2254

AND NOW, comes the Petitioner, Wayne Paul Burkett, by his

counsel, Joel B. Johnston, of the Federal Public Defender's

Office, and files this Amended Petition for writ of Habeas Corpus

under 28 U.S.C. Section 2254. The Petitioner herein avers the

following violations of his constitutional rights:

Le The Petitioner suffered violations of his Fifth and Sixth

Amendment rights as guaranteed under the Fourteenth Amendment, due

to the inordinate and unjustifiable delay of the Blair County

Court of Common Pleas in proceeding to sentencing of his case and

thereafter processing the necessary record for his direct appeal.

a Petitioner suffered a violation of his Fifth Amendment due

process rights, as those rights are guaranteed under the

Fourteenth Amendment, where the trial court allowed highly |

prejudicial cross-examination of Petitioner about evidence of

other crimes.

APPENDIX 2. FILE

3. The Petitioner suffered a violation of his Sixth Amendment

right to counsel, as guaranteed under the Fourteenth Amendmen

nrough the ineffective representation of his trial attorney.

With regard thereto, Burkett was incompetently and ineffectively

represented by trial counsel, John Woedcock, Esquire, at all

stages of the proceedings, including, but not limited to, the

‘ (a) In failing to move for a change of venue, in

gies pogee light of the extensive pretrial publicity surrounding

a, ee” ‘ %

’ this and previous cases involving Burkett; pS Vu 2 —

(5) In failing to pursue, locate and interview material

witnesses - Cindy Weyandt, Brad Laratonda, and Doug

Hoover = to the incidents immediately proceeding and

subsequent to the alleged attack on the prosecutrix;

Webcal that he would produce an actual eyewitness, Doug

ATR be eared who would rebut the prosecutrix' version

of the offense, when in fact, said witness was never

ase Wg subpoenaed, directly interviewed, or called as a witness

1 ~ gk and whose absence was never explained to the jury;

(a2) in failing to request the trial court to poll

the jury, for purposes of declaring a mistrial, regarding

possible exposure during trial to prejudicial newspaper

to exclude references during trial to two previous

+ 73 - | hn pi | +), - + | 1

nm faliing to properly challenge the trial court's

evidence of other crimes, and to allow the court to

permit such cross-examination without first conducting

a proper balancing test of the probative value of

udicial effect on the

(g) In failing to object to the court's charge where

there was no instruction addressing the prosecutrix’

delay in reporting the underlying offense to the

(h) In failing to file timely post-trial motions to

modify or reconsider the defendant's sentence, where

the sentence given impermissibly took into consideration

conduct by Burkett occuring after the date of the

charged offense in deciding to give Burkett a maximum

sentence;

(1) In failing to file timely post-trial motions to

ided

;

icn

pon the

for

ished as

his Ame

f appeal to

in t

time

e establ

—

ven based u

e sentences

of Court

—

any such hearing wh

atutory

then

—

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separa

-S.C. Section 2254(d),

can

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FOR I IA

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Ss . 1 “

Ss. : CIVIL ACTION NO. 85-1965

Jor + :

ANCGWER TY) AMENDED DETTTTON

AINOWE AU ABIBINUGY FPOoLLILIUIN

oT AL DADEAC MADOC

IT OF HABEAS CORPUS

AAIT) A x — e rT ee + RTCUARNH “T TAINITNICLIAA , —

AND NOW, comes Respondent, RICHARD CUNNINGHAM, by his

t y

i rT wr Tro, re. = - ~~)

Ol c ( - Irat+ ++orneyu of 2 ,r

OUNSel, lees VUTEIN, PIEST Attorney of Blair

Dp sep? _ . 3 os lae + ~ A Ton | Dat+++34

- cr wan van! > < . Sor ~ > ~ > , , >

, Pennsyivania, and files this Answer to the Amended Petition

cr Writ anf Hal) - Carmi) Aas 9 TT a ne » he 1 = ne. ee

ae) Habeas Corpus under 28 U.S.C. Section 2254. The Respondent

4. Wieuk Ve

i: 4

2. Denied.

~ ,

>' =n Ler VT ry r+

3. Denied in part.

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8/82)

concept which requires

gations raised

been imposed and the

appellate courts of the

tha a

¢ the petitioners h

charges for a time

three and a half

years

"An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears

that the applicant has exhausted the remedies available in

the courts of the State, or that there is either an absence

of available State corrective process or the existence

of circumstances rendering such process ineffective to

protect the rights of the prisoner."

This statute reflects a codification of the well-established

federal court will review

475 (1973); Braden

U.S.

410 U.S. 484 (1973);

v. 30th Judicial Circuit Court of Kentucky,

Bill v. Zimmerman, 709 F.2d 232 (3d Cir. 1983).

1. We note

tioner is incarcerated

R. A. BP. J3Gl,

that although conv

ict

in Cambria

341.

sccsceanteataiteeamessateassaiccasacasccasssisessiena ena

STOR CE eRe |

oar rer,

“2A

. 8/82)

t 1S only when a petitioner has demonstrated that the

the exhaustion requirement will not be imposed. Preiser v.

700 F.2d 110 (3d Cie. 1983).

RoGricuez, supra.; Beaty v. Patton,

In those instances where inordinate delay has occurred, the

not be imposed. Codisvoti v. Howard,

§89 F.2€ 135 (3d Cir. 1978); United States ex rel. Geisler v.

Walters, 510 F.2d 887 (3d Circ. 1975). In addition, an individual

will not be required to seek extraordinary relief from the state

“vn

re)

courts, nor will he be required to engage in exercise

lity. Beatv v. Patton, 700 F.2d 110 (3d Cir. 1983).

The Sixth Amendment right to a speedy trial

applicable to the states through the Due Process clause of t

Fourteenth Amendment. Kloofer v. North Carolina, 386 U.S. 213

(1967). While it would appear that the Supreme Court has not

determined whether the speedy trial mandate of the Sixth

Amencment applies to the sentencing phase of the prosecution, it

would appear that the Court of Appeals for this Circuit has so

held. United States v. Camoisi, 583 F.2d 692 (3d Cir. 1978).

See also: Tinghitella v. State of California, 718 F.2d 308, 313

(9th Circ, 1983). Thus it would appear that the instant case may

be reviewed to determine whether or not a speedy trial violation

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LOS. 86-3 4& R&e 2]

ARD CUNNINGHAM, WARDEN

Appellee

On Appeal from the United States District

aad aa

Court for the Western District

of Pennsylvania

(D.C. Civil Nos. 85-1965 & 85-196¢

; GEORGE E. SCHUMACHER

JOEL B. JOHNSTON (Argued

}

Sederal PD Defen

Federal Public Defend

960 Penn Avenue

f 415 Convention Tower

Shel See te ~* ¥ Pittsburgh, PA 15222

; r?

Attnrnor far Ann > rnf

Attoi icy JOT 4 MHECLUICL

APPENDIX "ne

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1e-Na year Geiay Detween conviction and sentencing

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and a irtne Ongoing adeliay (approximately one year

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commencement of the state appellate process because

of the tardiness of the Blair County court system both

umishing an opinion on post-verdict motions and

in furnishing

sentencing and in transmitting the trial record to the

Pennsylvania Superior Court. In the other, we confront

an almost unbelievable situation: Burkett has yet to be

sentenced, more than five and one-half years after trial

and two years after a federal district court declared that

Burkett’s right to a speedy trial would be violated if he

were not sentenced within 60 days

As a preliminary procedural matter, we observe

that in No. 86-3121 the district court used Federal Rule

of Civil Procedure 60(b) to vacate and reenter its

previous order of judgment, in effect extending the

time for appeal, because Burkett, Gespite due

diligence, did not learn of the entry of judgment until

after expiration of the period for requesting an

extension of time to appeal. Fed. R. App. P. 4(a)(5).

Under the particular circumstances of the case, we

hold that the district court had the power to vacate and

reeniter the final orger.

We also must make important threshold legal

determinations. First. does the Constitution’s Speedy

Trial clause appl through the sentencing phase of the

prosecution? We aT dues Second doce de trat_:t. does. Second. does

the Due Process cla rotect against delays in

the reasons that follow, we will affirm the district

court's dismissal for want of exhaustion in No.

86-3074. We will reverse the court's dismissal for want

of exhaustion in No. 86-3121. and. on those claims

concerning the case for which Burkett has been

sentenced but his appeal hindered, we will remand for

consideration of the merits of Burkett’s constitutional

claims, including the delay itself. That leaves for

consideration the conviction for which Burkett has

still not been sentenced for five and one-half years after

verdict, two years of which follow the district court's

order declaring that the Constitution required

sentencing within 60 days, an order predicated on a

finding of a speedy trial violation which was not

challenged by the county. The violation having been

establisbedwas Jaw of the case. and reiniorced bv the

continuing delay. and the county having conceded at

oral argument that the oniv appropriate remedy

appears to De dismissal, we will remand the case to the

district court with instrucuions to grant the writ

eek ene

unconditionally and discharge Burkett from that

conviction.

I. PROCEDURAL HISTORY

The factual matrix of these appeals lies in the

procedural history of Burkett’s criminal cases. That

history is extremely involved, and resolution of these

appeals requires that we set it forth in detail.

A. State Courts: Round I

Burkett was arrested on February 7 1981 and

charged in the Blair County Court of Common Pleas

with the crimes later detailed in criminal actions Nos.

140 and 141 of 1981 (*140/141").' Six days later, he

was charged with the crimes detailed in criminai

action No. 161 of 1981 (“161").7 On July 22, 1981 the

prosecution moved under Pennsvlivania Rule of

Criminal Procedure 1100O(c) to extend the 180-day

deadline for commencing trial otherwise required

under Rule 1100(a)(2). On October 7, 1981 the court,

despite Burkett’s objection and motion to dismiss,

granted the prosecution's request.

& Information Nos. 140 and 141 of 1981 were both filed March

17, 1981. Each charged Burkett with the felonies of burglary, rape.

and involuntary deviate sexual intercourse; and with the

misdemeanors of theft by unlawful taking or disposition, receiving

stolen property, indecent assault, recklessly endangering another

person, terroristic threats, unlawful restraint, and indecent

exposure. In addition, No. 140 of 1981 charged Burkett with

corruption of minors, a misdemeanor. The parties have treated

140/141 as a single case. and we shall also.

2. Information No. 161 of 1981, filed April 7, 1981. charged

Burkett with the felonies of rape, involuntary deviate sexual

intercourse, and aggravated assault; and with the misdemeanors of

unlawful restraint, indecent exposure, terroristic threats,

recklessly endangering another person, and indecent assault.

In 140/141, Burkett was convicted on November

17, 1981 of some charges? and av ~<uitted of others:4 a

mistrial was declared on the remaining counts when

the jury hung.* On November 20, 1981, both sides

consented to a continuance in 161. On January 20,

1982 Burkett was convicted in 161 on all counts.

Having filed timely -post-verdict motions

concerning both trials, Burkett was released on bail

pending sentencing on February 24, 1982. After 48

days, on April f ed and charged

with the crimes later detailed in criminal action No.

284 of 1982 ("284").° Burkett has been continuously

incarcerated since this arrest. Ga

On August 19, 1982 the court ordered the district

attorney to show cause why transcripts of Burkett’s

trials should not be furnished to him at the court's

expense. The record reflects no subsequent hearing or

order on the matter. It appears that only transcripts for

161 were prepared at that time.

3. The jury convicted Burkett of both counts of burglary. theft

by unlawful taking. receiving stolen property. and terroristic

threats. It also convicted him of corruption of minors.

4. The jury acquitted Burkett of both counts of indecent assault

and indecent exposure. It also acquitted him of involuntary deviate

sexual intercourse in No. 141 of 1981. The record does not reveal

the disposition of the latter count in No. 140 of 1981.

S. The jury hung as-to both counts of rape, recklessly

endangering, and unlawful restraint.

6. Information No. 284 of 1982, filed June 18, 1982, charged

Burkett with the felonies of burglary and attempted rape: with the

misdemeanors of recklessly endangering another person,

terroristic threats, and simple assault; and with the summary

offense of harassment.

In 284, the prosecution requested and received

several Rule 1100 continuances, beginning on October

1, 1982. Burkett filed motions to dismiss for lack of

timely prosecution beginning on October 15, 1982.

The court denied dismissal and granted further

continuances on November 5 and December 29, 1982

and January 4, 1983. On January 28, 1983 Burkett

was convicted of all felony and misdemeanor counts by

a jury and on January 31, 1983 the court found him

guilty of the charged summary offense. Burkett filed

timely post-verdict motions.

At least by July 1983, Burkett was requesting trial

transcripts of 140/141 and 284. App. 183. Transcripts

for 284 were completed and filed in August 1983. The

other transcripts were not prepared. No briefing or

hearing was scheduled on Burkett’s post-verdict

motions in any of his cases, and under Pennsylvania

law he could not be sentenced until the court had ruled

on those motions.’

On March 12, 1984, Burkett filed a petition for a

writ of habeas corpus with the Blair County Court of

Common Pleas, challenging his custody in all three

cases on the basis of speedy trial and due process

violations and because he had still not been sentenced.

A hearing on this petition was held in October 1984,

after which a briefing schedule was set for 161 and

284. When no ruling was forthcoming on the habeas

petition, Burkett filed for relief on similar grounds in

the Pennsylvania Superior Court on December 12,

1984.*® Burkett’s brief in 284 was filed on January 23,

1985.

re See Commonwealth v. Hill, 282 Pa. Super. 462, 422 A.2d

1385. 1387 (1980); Pa. R. Crim. P. 1123 comment.

8. Relief was ultimately denied by the Superior Court on August

28, 1985 and by the Pennsylvania Supreme Court on April 24,

986.

Meanwhile, Burkett had also sought to raise the

issue of counsel's ineffectiveness in order to preserve

that issue for appeal.’ He objected to proceeding with a

hearing on his post-verdict motions in 284 on January

23, 1985, because his motion concerning

ineffectiveness in that action, filed September 6, 1984,

had yet to be resolved. The hearing was adjourned, and

an ineffectiveness hearing was later scheduled for April

1, 1985. As of March 1985, Burkett’s post-verdict

motions in 161 and 284 had been briefed but not

argued, and no briefing had been scheduled in 140/141

because no transcripts had been filed, even though

Burkett had filed yet another motion to compel

production of those transcripts on January 14, 1985.

B. Federal Courts: Round I

On March 28, 1985 Burkett filed a petition for writ

of habeas corpus at W.D. Pa. Civ. No. 85-769, charging

that the delay in sentencing in ali of his cases violated

his rights under the Speedy Trial clause. See App. at

154: Supp. App. at 3. We also construe the petition to

allege a due process violation. The magistrate granted

in forma pauperis status and ordered an answer on

March 29, 1985. Blair County filed a timely answer, to

which Burkett filed a response.

The magistrate filed a report and recommendation

on May 15, 1985. Finding exhaustion excused because

of inordinate delay, he discussed whether Burkett had

established a speedy trial violation under the four-part

test of Barker v. Win 0, 4070S. 514, 530 (1972). The

magistrate, finding lengthy delay, noted Burketi's

repeated requests to be sentenced and attributed no

delay to him. The magistrate found prejudice -- that the

9. Motions concerning counsel's ineffectiveness were filed in

140/141 on July 11 and December 2, 1984 (never ruled on): in 161

on July 1] and August 14, 1984 (never ruled on): and in 284 on

July 11 and September 6, 1984 (ultimately denied April 2, 1985).

delay had “caused some loss to the petitioner,” see

infra at 35 n.36 -- and that “it_would appear to

fundamental denial of the constitutionally assured

right to a speedy trial to delay ruling on post-trial

motions far in excess of three years.” Supp. App. 11. He

réasoned, however, that “it would appear appropriate

to withhold any action,” id. at 12, based apparently on

an order of the Blair County Court of Common Pleas

that a hearing on post-trial motions in 284 be

scheduled “for the earliest possible date consistent

with the calendar of this Court.” The magistrate

therefore recommended with respect to all of Burkett's S

cases that the writ_be denied “unless the Court of

Common Pleas fails to dispose of the post-trial motions

and impose anv appropriate sentence within sixty (60) —

days.” Supp. App. 12.

The district court granted the parties ten days for

the filing of objections to the report and

recommendation of the magistrate, but no objections

were filed and no extensions of time were sought. The

district court adopted the magistrate’s report and

recommendation in full as its opinion on May 30,

1985. declaring that the Constitution permitted Blair

County 60 further days from that date in which to

sentence Burkett.'® App. 154. Blair County did not

10. The district court's order reads:

It is ordered that the petition of Wayne Burkett for a writ

of habeas corpus is dismissed and that a certificate of

probable cause is denied, unless the Court of Common

Pleas of Blair County fails to dispose of the post-trial

motions and impose any appropriate sentence within

sixty (60) days.

It is further ordered that in the event that the Court fails

to act in accordance with this directive that the

petitioner file a new petition. that jurisdiction on the

merits be assumed by this Court and that an appropriate

merits determination be made.

appeal, but Burkett did. We denied Burkett a certificate

of probable cause to appeal on August 14, 1985,

“without prejudice to filing a new petition in the

district court.” App. 155.

C. State Courts: Round II

The Blair County court denied Burkett's State

habeas petition (first filed March 12, 1984 as to all

three convictions) on June 6, 1985. Having already

denied his ineffectiveness motion 12-284 on April 2,

1985,"' the court proceeded to’ deny his post-verdich

motions on May 8 and to sentence him on June 24,

1985. Burkett received consecutive sentences totaling

16 to 32 years, which according to the court was the

maximum permitted under law.'* The court filed an

opinion with the sentencing order. Burkett’s appeal

was docketed in Superior Court at No. 974 Pgh 85.

in 161. post-verdict motions were denied on June

7, 1985. Burkett was sentenced on July_10. 19 2

although the sentencing order was not filed until

September 18, 1985. As a repeat offender. he received

comsecutive sentences totalling 22 to 44 vears.'?

We find the language of this order far from pellucid. Given the

findings of the magistrate and the district court, however. we read

the order as a conditional grant of Burkett’s writ. As we read the

ordier, the new “petition” it contemplated was only a petition for

enforcement. See infra at 34-35 n.35.

a4. See supra at 7 n.9. Burkett’s interlocutory appeal of this

denial was quashed by the Superior Court on May 23, 1985.

12. Burkett received 10 to 20 years for burglary. 5 to 10 for

attempted rape. and 1} to 2 vears for recklessly endangering.

consecutive to each other: plus fines totaling S300 and costs. The

other offenses merged for sentencing purposes. No credit was given

for time served

13. Burkett received 8 to 16 years for rape. 8 to 16 for

involuntary deviate sexual intercourse 4 to 8 for aggravated

assault. and 2 to 4 for terroristic threats. all consecutive to each

other: plus fines totalling S800 and costs. The other offenses

merged for sentencing purposes. The sentence was to commence as

—

Burkett’s appeal was docketed in Superior Court at No.

1089 Pgh 85. However, no opinion on post-verdict

motions or sentencing was then filed,'* without which

filing the record could not be transmitted to Superior

Court!’ and the appeal could not proceed."®

In 140/141, the court attempted to compel the

court reporter to produce the transcripts by entering

orders on May 7, 1985 (“forthwith”) and on August 21,

1985 (“on or before . . . August 30"). Despite the

continuing lack of transcripts. post-verdict motions

were heard i carry ee Despite the hearing,

the court has yet to either rule on the motions or

sentence Burkett.

of July 10, 1985. with credit given for jail time from February 13.

1981, to February 24. 1982. App. 49-52.

14. Pennsylvania Rule of Appellate Procedure 1925(a) provides

as follows:

Upon receipt of the notice of appeal the judge who entered

the order appealed from. if the reasons for the order do not

already appear of record. shall forthwith file of record at

least a brief statement. in the form of an opinion. of the

reasons for the order. or for the rulings or other matters

complained of, or shall specify in writing the place in the

: record where such reasons may be found.

15. “When the record is complete for purposes of the appeal. the

clerk of the lower court shall transmit it to the prothonotary of the

appellate court.” Pa. R. App. P. 1931(c).

16. Pennsylvania Rule of Appellate Procedure 2185(a) provides

that an appellant's brief shall be due 40 days after the record is

transmitted. Rule 1931(a) provides that the lower court clerk shall

transmit the record within 40 days of the filing of the notice of

appeal (here August 13, 1985). Rule 1931(b) gives the trial judge

the original duty of ensuring that the record is completed and

transmitted. Rule 1935 also gives. in succession, the appellate

court prothonotary, the state Court Administrator. and the state

Supreme Court the authority to deal with delinquency by the lower

court.

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procedure, the merits of the petition, including the

issue of delay can be addressed.” App. 134."

In No. 86-3121, the magistrate filed a report on

September 23, 1985 without holding an evidentiary

hearing. He recommended dismissal r want of

if Blair County counsel] represented on September 26 and

December 23. 1985 that the trial record (due September 1 18

was being transmitted to Superior Court. App. 127-28. 204. The

Superior Court received the record. without which the appe ild

not proceed, on y 2. 1986

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due September 23, 19

district court adopted the magistrate’s report

recommendation on October 15, 198

Burkett was transferred to «

times between September and November 1985. Ea

time he promptly notified the district court of his new

address. The court sent the magistrate’s report in N

86-3121 by certified mail to his correct address on

September 23, 1985: it also sent communications

his correct address on October 4, October 9, October

11, and November 12, 1985, each of which assured

him that “you will é

However, the critical final order in No. 86-3121, which

was filed by the court on October 15, was sent by

uncertified mail to the wrong prison: Burkett did not

eive it nor did he learn of it until the December 23.

19 185 hearing in No. 86-3074, despite an

mail on December 16. See App. 75, 1

January 15 and 21, 1986. Burkett moved for

reconsideration on two grounds: (1) that he had not

been notified of the October 15 order, and (2) that the

court had not considered his 140/141 convictions or

the continuing delay in his 161 appeal. On January 17,

the district court vacated its October 15 order on only

the former ground; it then redenied Burkett's petition

for habeas corpus on January 17 and 23, 1986.

be advised of any decision

18 See supra at 10-11 & nn. 14-16

Burkett filed a notice of appeal from both January

orders on February 5, 1986. This Court granted a

certificate of probable cause in both appeals on October

21, 1986. Oral argument was heard April 10, 1987.

E. State Courts: Round II]

On the day after the instant federal habeas

petitions were docketed in the district court, the

Pennsylvania Superior Court denied state habeas relief

based on delay in all of Burkett’s cases. Burkett then

took his state habeas claims to the Pennsylvania

Supreme Court on September 27, 1985, which

eventually denied relief on April 24, 1986.

In the direct appeal on 284, the record was

transmitted to Superior Court on January 2, 1986,

four months late. So that he could raise his old

counsel's ineffectiveness in his direct appeal, Burkett

renewed the request for new counsel that had been

denied by the Blair County court. The Superior Court

granted the request on April 4. 1986, remanding the

case to Blair County for 30 days in which time new

counsel could be appointed. After appointing new

counsel on April 9, 1986, Blair County did not return

the record until July 16, 1986. The appeal then

appears to have proceeded normally. The Superior

Court denied the appeal on January 12. 1987 and

denied rehearing on February 26, 1987. Burkett’s

timely petition for allocatur is pending before the

Pennsylvania Supreme Court.

In 161, Burkett’s sentencing order was filed on

September 18, 1985, and the record was due in the

Superior Court on September 22, 1985. However, no

opinion on post-verdict motions was filed until May 8,

1987 -- a month after oral argument in this Court and

as the opinion writer was completing the final draft of

this opinion for circulation to the other members of the

panel. Blair County has not indicated whether a

et ey ee

sentencing opinion remains to be filed or whether the

Court.'® The Superior Court ordered Blair County to

appoint new counsel for Burkett on April 3, 1986. and

it did so on April 9, 1986.

In 140/141, the first trial transcript was filed on

October 22, 1985, but the final transcript was not

complete until August 11, 1986. The court scheduled

new hearings on post-verdict motions but has not yet

held such a hearing. Shortly before oral argument in

this case, the latest scheduled hearing had to be

postponed again. Blair County had assigned to hear

the case a judge who had been a member of the district

attorney's office during the pendency of Burkett’s

post-verdict motions, and Burkett successfully moved

to recuse the judge. At oral argument counsel indicated

that the motions were currently scheduled for hearing

on May 21, 1987.

Burkett also filed a new habeas petition in the

Blair County court on December 22, 1986, challenging

the court's continued failure to hear post-verdict

motions or sentence him in 140/141. The court denied

the writ on June 2, 1987. The record does not reveal if

Burkett has appealed the denial

Il. APPELLATE JURISDICTION IN NO. 86-3121:

EXTENDING TIME FOR APPEAL UNDER

RULE 60(b)

Because Burkett filed no appeal as such from the

October 15, 1985 final order denying the writ in No.

19 See supra at 10-11 & nn. 14-16. Burkett filed suit in federal

’

court under 42 U.S.C. § 1983 on February 10. 1985, based on the

orothonotan’s failure to transmit the records in 161 and 284. The

district court dismissed Burkett’s claim concerning only 161 on

December 10. 1986 in W.D. Pa. Civ. No. 86-313. and we were forced

to dismiss Burkett’s interlocutory appeal! for lack of jurisdiction on

February 25, 1987 in 3d Cir. No. 86-3785

ina

86-3121, we raise sua sponte the issue of our

jurisdiction over that case.** Burkett did file motions

denominated as motions for reconsideration on

January 15 and 21, 1986. The district court treated

these as a motion for relief from its October 15 order,

see Fed. R. Civ. P. 60(b), granted the motion, and

redenied the habeas corpus petition on January 17

and 23. Burkett then filed a notice of appeal on

February 5, 1986. If the district court had the power to

construe the motions as it did in order to allow Burkett

to file a timely notice of appeal, we have jurisdiction

under 28 U.S.C. § 1291 to review the reentered final

order.” If the district court’s construction was in error,

however, we lack jurisdiction: Burkett’s motions could

only be construed as either untimely motions for

reconsideration under Federal Rule of Civil Procedure

59(e), whose filing deadline in this case would have

been October 29, 1985; untimely notices of appeal

under Federal Rule of Appellate Procedure 4(a)(1), with

a filing deadline of November 14, 1985; or untimely

motions to extend time to appeal under Federal Rule of

Appellate Procedure 4(a)(5), due December 16, 1985.

We begin our analysis with the case of West v.

Keve, 721 F.2d 91 (3d Cir. 1983). In West, we

confronted an appellant who had filed a Rule 60(b)

motion whose “sole stated purpose. . . [was] to extend

the time for appeal.” Id. at 96. Carefully limiting our

decision to those specific facts, we held that a district

court could entertain such a motion only if the motion

20. “[T}he requirement of a timely notice of appeal is

‘mandatory and jurisdictional.” Griggs v. Provident Consumer

Discount Co., 459 U.S. 56, 61 (1982) (citation omitted).

ai. Respondents have not raised the question whether the

district court abused its discretion in reentering its final order. so

we need not address that issue. See Felshina v. Schweiker, 707

F.2d 71, 72 (2d Cir. 1983)

and subsequent notice of appeal met the time

constraints of Rule 4(a)(5). Id. at 97.7

In Hall v. Community Mental Health Center of

Beaver County, 772 F.2d 42 (3d Cir. 1985), we applied

West to bar relief through a Rule 60(b) motion to a

party whose counsel had not been notified by the court

of the entry of a final order. We reached this result,

even though counsel for neither side had been notified,

id. at 46, on the basis of Federal Rule of Civil Procedure

77(d), which states that “[l]ack of notice of the entry by

the clerk does not affect the time to appeal or relieve or

authorize the court to relieve a party for failure to

appeal within the time allowed, except as permitted in

Rule 4(a)." Jd. at 43. Noting counsel's lack of diligence,

however, we expressly declined to decide whether relief

might be permitted under Rule 60(b) “when delay in

filing an appeal is based on reliance on some

affirmative behavior of the district court.” Id. at 45.7

22. Regardless of our holding in West, at least six Courts of

Appeals have allowed relief under Rule 60(b) outside the time

constraints under Rule 4(a)(5). See. e.g.. Harnish v. Manatee

County, Fla., 783 F.2d 1535, 1537-38 (11th Cir. 1986); Wallace v

McManus, 776 F.2d 915, 917 (10th Cir. 1985) (pro se litigant):

Rodgers v. Watt, 722 F.2d 456. 459-460 (9th Cir. 1983) (en banc)

Felshina, 707 F.2d at 72; Buckeye Cellulose Corp. v. Braggs Elec

Const. Co., 569 F.2d 1036, 1037-38 (8th Cir. 1978): Fidelity &

Deposit Co. v. USAFORM Hail Pool. Inc., 523 F.2d 744. 747-51 (5th

Cir. 1975), cert. denied, 425 U.S. 950 (1976); see also Sames v

Gable, 732 F.2d 49, 51 n.2 (3d Cir. 1984) (distinguishing West on

basis of “special circumstance”)

23. While not holding so explicitly, at least four Courts of

Appeals in addition to this court in Hall have at least assumed

arguendo that such relief might be granted. See, e.g.. Spika v

Village of Lombard, Ill., 763 F.2d 282, 285 {7th Cir. 1985), cert

denied, 106 S.Ct. 79 (1986); Case v. BASF Wyandotte. 737 F.2d

1034, 1035 (Fed. Cir.) (pro se litigant), cert. denied, 469 U.S. 982

(1984): Hensley v. Chesapeake & O. Ry. Co., 651 F.2d 226, 227 (4th

Cir. 1981); Scola v. Boat Frances R., Inc., 618 F.2d 147, 152 (1st

Cir. 1980). See also James v. United States, 459 U.S. 1044, 1046

(1982) (opinion of Brennan, J., respecting denial of certiorari)

The instant case is distinguishable from both West

and West's application in Hall. The purpose of

Burkett’s motion was different from that under

consideration in West. Because Burkett’s mo-.on for

reconsideration was motivated not only by his need for

more time in which to appeal, but also by the court's

failure to consider his 140/14] convictions and the

continuing delay in his 161 appeal, the motion’s “sole

Stated purpose” was not “to extend the time for

appeal.” West, 721 F.2d at 96. We Similarly believe that

the facts of this case are significantly different from

those in Hall, which dealt with the actions of an

attorney who was not diligent. Burkett was not only

acting pro se but was incarcerated. physically

restrained by respondents from checking in person on

the status of his case. Cf. Fallen v. United States, 378

U.S. 139, 142-143 (1964) (court must accept notice of

appeal filed late by prisoner because prison prevented

its timely filing). He was exceptionally diligent in

notifying the court of three address changes and

responding to court orders. and the clerk had sent the

Magistrate's order to the correct address by certified

mail. Most importantly, the clerk wrote Burkett four

times in October and November 1985 -- thus both

before and after the entry of final judgment in No.

86-3121 -- and assured him that he would be “advised

of any decision.” Only the critical final order was sent

to the wrong address. The current situation therefore

parallels those from which Hall explicitly

distinguished itself: “In these and other Cases, the

a ed

24. indeed, Burkett’s reliance appears to have been reasonable

because No. 86-3074, his Other federal habeas petition, was

docketed Simultaneously and was in fact stil! pending without final

resolution

We reaffirm West and Hall and do not extend

ourselves to distinguish them. but this case presents

exceptional circumstances that justify relief under

Rule 60(b) outside the time constraints of Rule 4(a)(5).

We emphasize that Burkett was a diligent.”

incarcerated habeas petitioner,*® repeatedly

transferred from jail to jail; that affirmative behavior of

the court induced him to await notification by the

court for a reasonable length of time; ”’ that he learned

of the entry of judgment too late to apply for relief

under Rule 4(a)(5); that he promptly sought relief

under Rule 60(b) within 30 days of learning of the entry

of judgment; and that respondents have shown no

prejudice.™: |

For the foregoing reasons the district court had the

power under Rule 60(b)** to vacate and reenter

25. In addition to Burkett’s prompt notification of all address

changes, we note that he wrote the court on December 16, 1985 --

the day the Rule 4(a)(5) limit expired -- to inquire whether an order

had been entered.

26. We note too that an order in a habeas corpus case is never

strictly res judicata. A successive petition alleging the identical

grounds may be entertained unless “the judge of court is satisfied

that the ends of justice will not be served by such inquiry.” 28

U.S.C. § 2244(a): see Sanders v. United States, 373 U.S. 1. 15

(1963). Barring Rule 60(b) relief here would thus serve only delay.

not finality

27. Burkett’s December 16 letter was written only 34 days after

the court had last assured him that he would be notified of any

decision.

28. Cf. United States v. Hashagen. No. 86-5145 (3d Cir. Apr. 23,

1987) (in banc) (allowing premature criminal appeal in absence of

prejudice); Richerson v. Jones, 557 F.2d 918, 922 (3d Cir. 1977)

(allowing premature civil appeal in absence of prejudice).

29. We need not, and do not, decide whether this relief should

come under the rubric of Rule 60(b)(2) (where due diligence did not

lead to timely discovery of the order); 60(b)(5) (where “it is no longer

equiiable that the judgment should have prospective application”);

judgment. Because Burkett then filed a notice of appeal

within 30 days of reentry, we have jurisdiction to

review the merits of the order under 28 U.S.C. § 1291.

Ill. EXHAUSTION OF STATE REMEDIES

A state prisoner seeking federal habeas relief must

first exhaust “the remedies available in the courts of

the State” unless “there is either an absence of

available State corrective process or the existence of

circumstances rendering such process ineffective to

Protect the rights of the prisoner.” 28 U.S.C. § 2254(b).

As we have noted previously, however, “i]t is the legal

issues that are to be exhausted. not the petitioner.”

U.S. ex rel. Geisler v. Walters. 510 F.2d 887, 893 (3d

Cir. 1975) (quoting Park v. Thompson, 356 F. Supp.

783, 788 (D. Haw. 1973)). To that end, “inexcusable or

inordinate delay by the state in processing claims for

relief may render the state remedy ... ineffective to

Protect the rights of the prisoner,” excusing a lack of

exhaustion. Wojiczak v. Fulcomer, 800 F.2d 353. 354

(3d Cir. 1986). -

In general, the burden rests on a habeas petitioner

to prove all facts warranting relief, Brown v. Cuyler,

669 F.2d 155, 158 (3d Cir. 1982). including the facts

relevant to the exhaustion requirement, Gonce uv.

Redman, 780 F.2d 333, 336 (3d Cir. 1985). However,

where a petitioner has demonstrated inordinate delay,

we have placed the burden on respondents to

demonstrate why further resort to the state courts

should be required. See Wojtczak, 800 F.2d at 355-56:

Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir.

1978).

The district court that entertained Burkett’'s

earlier habeas petition found that the delay as of May

or 60(b)(6) (“any other reason Justifying relief). See Sames. foe

F.2d at 51 n.2.

1985 was already sufficient to excuse exhaustion. That

quite correct finding was part of an order which was

not appealed by the state, and we did not grant

Burkett’s probable cause petition: the district court's

ruling is therefore not open to collateral attack in this

proceeding. Hence, Burkett’s claims would only have

become unexhausted if state proceedings have

progressed to a sufficient degree.

As to No. 86-3074, Burkett’s direct appeal in 284

now appears to be proceeding normally.” Blair County

has thus complied with the previous court order as to

284. Burkett has alleged that Blair County had further

delayed his appeal by transmitting the record four

months late, and he alleges a further three-month

delay since the district court's decision. However, it is

not disputed that the case is now before the

Pennsylvania Supreme Court. Under the

circumstances, we believe that it is appropriate to allow

that court. in the first instance, to hear petitioner's

claims. We will therefore affirm the district court's

dismissal for lack of exhaustion in No. 86-3074.

In No. 86-3121, there has been insufficient change

for us to find that Burkett’s claims have since become

unexhausted. There is no indication that the

Pennsylvania appellate courts will soon receive 140/141

or that they will soon dispose of 161, even if we were

again inclined to give the state yet more ume. Because

of the continued delay, we find that Burkett has

exhausted his state remedies in this proceeding.”

30. The magistrate’s tinding in this respect was premature. See

supra at 12-13 & n.17.

31. Even if Burkett’s appeal can now proceed in 161, we believe

Burkett has waited long enough for the state court system to act

and may properly seek relief in federal court. See Wojtczak, 800

F.2d at 356 n.3 (finding that delay of three and one-half years in

ruling on PCHA petition excused exhaustion even where cause of

delay may now have been removed)

We repeat that “justice delayed is justice denied.”

Geisler, 510 F.2d at 893. We fully appreciate the

requirements of comity, but further deference to the

State courts in No. 86-3121 would constitute a comity

of errors, making a mockery of fundamental rights that

are guaranteed to the guilty and innocent alike. Hence

we hold that the egregious ongoing delay in 140/141

and 161 itself, amounting to five and one-half years, as

a matter of law excuses exhaustion of state remedies

concerning all federal claims raised by Burkett in

86-3121. See Wojtczak, 800 F.2d at 354. Because the

district court erred as a matter of law in finding that

Burkett failed to exhaust, its order on that issue must

be reversed.

IV. CONSTITUTIONAL PROTEC TIONS AGAINST

DELAY: SPEEDY TRIAL AND DUE

PROCESS CONCERNS

Having found both that we have jurisdiction over

No. 86-3121 because a timely notice of appeal has been

filed and that state remedies have been sufficiently

exhausted, we now consider the merits of the legal

Ja. We note also that even were we to find the claims

concerning 161 unexhausted, relief would not be barred on the

140/141 claims, since they arise from a wholly separate conviction.

The “total exhaustion” rule of Rose v. Lundy, 455 U.S. 509. 522

(1982). applies only to claims arising from a single criminal case.

Nor is exhaustion required in any event when a petitioner in

essence seeks review of a state's failure to comply with a federal

court's mandate. Tully v. Scheu. 637 F.2d 917, 921 (3d Cir. 1980).

We hold that this is the case here.

We regard as frivolous Blair County's assertion that Burkett's

recent filing of a new state habeas petition in its court constitutes

his implicit admission “that he has not exhausted his state

remedies nor are attempts futile, and as a consequence, the Federal

action is moot.” Brief for Appellees at 8

issues presented in that habeas corpus petition. "3

Burkett’s petition arises at the intersection of two lines

of cases. In one line, the Sixth Amend ment guarantees

the right to a speedy trial, which applies to the states

by the Fourteenth Amendment. See Klopfer v. North

Carolina, 386 U.S. 213 (1967). In the second line, the

Due Process clause of the Fourteenth Amendment has

guaranteed to staie criminal defendants procedural

safeguards not only at the trial level, but also for

appeals as of right. See Evitts v. Lucey, 469 U.S. 387,

105 S. Ct. 830 (i985): Griffin v. Illinois, 351 U.S. 12,

76 S. Ct. 585 (1956). We first review the applicable law

in both lines to determine if either or both apply and, if

so, what relief they may provide. As is explained more

fully below, we find both lines applicable. We will

therefore apply their analysis to Burkett's petitions to

the extent that the record reveals no material issues of

fact.

A. The Right to Speedy Trial

The Sixth Amendment right to a’speedy trial is a

fundamental tenet of Anglo-American jurisprudence.

The liberties now embodied therein were first

articulated in the very foundation of our English law

heritage. See Magna Carta, c. 29 [c. 40 of King John's

Charter of 1215; c. 29 of King Edward's Charter of

1297} (1225) (“To none will we sell, to none will we deny

or delay, right or justice”). The Speedy Trial clause is

applicable to state trials as part of the due process

required by the Fourteenth Amendment. Klopfer, 386

U.S. at 226.

In determining whether the right has been

violated, a court should weigh four factors: “Length of

x: In view of the age of the cases encompassed by No. 86-3121,

we feel obliged to at least consider the merits of the legal issues

rather than automatically remand to the district court for that

purpose. See infra at 42-43

delay, the reason for the delay, the defendant's

assertion of his right, and prejudice to the defendant.”

Barker v. Wingo, 407 U.S. 514, 530 (1972): Sandler v,

Sullivan, 748 F.2d 820 (3d Cir. 1984). Because “the

right to a speedy trial is a more vague concept than

other procedural rights,” Barker, 407 U.S. at 921,

courts are compelled to “approach speedy trial cases on

an ad hoc basis,” id. at 530. Whether a particular -

individual's rights have been violated “depends upon

the circumstances,” Pollard. 352 U.S. at 361, and

therefore upon “a functional analysis of the right in the

Particular context of the case.” Barker, 407 U.S. at

522. Hence the Barker analysis presents four factors

that “are guidelines, not rigid tests,” Perez v, Sullivan,

793 F.2d 249, 254 (10th Cir. 1986). and no single

actor is “ei Ce€SSary QO of

the deprivation ofa right to a speedy trial.” Barker, 407

U.S. at 533.

If this analysis leads to a conclusion that the right "

to a speedy trial has been violated. the prejudice of the

violation must be rectified. See, e.g., Braden v. 30th

Judicial Circuit Coun of Kentucky, 410 U.S. 484. 486

(1973). Where the prejudice cannot be rectified, the

"remedy must be discharge from custody with prejudice

‘to retrial. See Strunk v. United States, 412 U.S. 434.

"440 (1973). ~

Although neither the Supreme Court nor this

* Court has definitively held that the right to speedy trial

applies to post-verdict proceedings, both have assumed

arguendo that the right extends at least to sentencing.

“See. e.g.. Pollard v. United States, 352 U.S. 354, 36]

(1957); United States v. Campisi, 583 F.2d 692, 694

(3d Cir. 1978): see also Schandelmeier ov.

Cunningham, No. 86-325]. slip op. at 9 (3d Cir. Dec.

2, 1986) (dismissing without prejudice, for want of d

exhaustion, a speedy trial claim in post-verdict

context). Other courts -- including the district court in

Burkett's earlier habeas action, see Supp. App. 7 --

have squarely held that the Speedy Trial clause applies

to the sentencing phase of prosecution. Tinghitetla v.

State of California, 718 F.2d 308, 312-13 (9th Cir.

1983); United States v. Merrival, 600 F.2d 717, 720

(8th Cir. 1979); United States v. Howard, 577 F.2d

269, 270 (5th Cir. 1978); United States v. Reese, 568

F.2d 1246, 1253 (6th Cir. 1977); United States v.

Campbell, 531 F.2d 1333, 1335 (Sth Cir. 1976), cert.

denied, 434 U.S. 851 (1977): Juarez-Casares v.

United States, 496 F.2d 190, 192 (5th Cir. 1974)

(prisoner discharged for 31-month delay); Hooper v.

Cunningham, Civ. No. 84-2818, slip. op. at 4, 9 (W.D.

Pa. Feb. 21, 1985) (Blair County prisoner unsentenced

for 37 months after trial must be discharged from

custody), motion to withdraw appeal granted, No.

85-3161 (3d Cir. Sept. 18, 1985). Indeed, the Tenth

Circuit noted in Perez that, since the Supreme Court's

decision in Pollard, it “and all others which have

addressed the issue have either treated the subject as

established law cr have perpetuated the Court's

assumption in Pollard.” 793 F.2d at 253 (citing cases).

We now_make explicit whgtuwe have assumed in

Sixth Amendment applies from the time an accused is

arrested or criminally charged, United States v.

Marion, 404 U.S. 307, 320 (1971), up through the

sentencing phase of prosecution, sce CampIst SB

.2d at 694 -- in other words, until one final,

pre-appellate determination has bee ade as t

whether and for how long the accused should be

iricarcerated.

par eat

34. See also United States v. Tortorello, 391 F.2d 587, 589 (2d

Cir. 1968) (assuming arguendo that Speedy Trial Clause applies to

sentencing): Brady v. Superintendent, Anne Arundel Co. Det. Ctr.,

443 F.2d 1307, 13!0 (4th Cir. 1971) (same); Commonwealth v.

Pounds. 490 Pa. 621, 417 A.2d 597, 599 (1980) (same)

In Campisi, without deciding this last proposition,

we applied the four-part Barker test to speedy trial

claims concerning delays in sentencing. Campisi, 583

F.2d at 694. Other courts have done the same. See,

e.g.. Campbell, 531 F.2d at 1335; Pounds, 417 A.2d at

599-601; see also Perez, 793 F.2d at 254 (deciding

definitively that the Speedy Trial clause applies to

post-verdict proceedings] ReeseS68 Fdd at 1253

(Same). We hold that the proper test to determine _a

Speedy Trial clause violation in a post-verdict context

is the four-factor test of Barker v. Wingo, 407 U.S. at

030. Moreover, we agree with the prevailing caselaw

Se te REL TaCOrS is either necessary or

Sullicient. Nevertheless, while “all four factors are to be

balanced in light of the facts and circumstances of the

case,” Perez, 793 F.2d at 254 (citations omitted), “once

a defendant has been convicted it would be the rarest of

circumstances in which the right ta_a speedy trial

could be infringed without a showing of prejudice,” Jd.

at 256. Additionally, we agree that Strunk is also

applicable in the sentencing context and, if a violation

is found, the remedy must be dischargewit ~judice

O retrial if esser remedy can rectify the prejudice ta

the defendapt. 412 U.S. at 440.

B. Due Process

The Supreme Court has found that the Due

Process clause protects the right to direct appeal when

that right is guaranteed by the state, even though the

Constitution does not require states to grant that

right. See, e.g., Evitts, 469 U.S. at 393. Due process

requires that a right to appeal be a right to an

“adequate and effective’ appeal” which is “more than a

‘meaningless ritual.” Jd. at 393, 394 (quoting Griffin

v. Illinois, 351 U.S. 12, 18 (1956), and Douglas v.

California, 372 U.S. 353, 358 (1963)). Due process

further protects not only the right “to obtain a

favorable decision.” but also the right “to obtain a

decision at all ...on the merits of the case. Evitts,

469 U.S. at 395 n.6 (emphasis in original). In short a

convicted defendant has a right to know what the

sentence is to be, and to proceed with a direct appeal.

Tae has been clear in its reasons for

extending the meaningful procedural protections of

die process to appeals as of right. By deciding that an

appeal is so important that it must be ayailable as a

matter of atter of right. a stal a state has “r ‘made the appeal the final

step in_ the ep in the adjudication “of guilt < or innocence_of of _the

indjvidual.” Id. at 404 ( (citing Gr iffin. 351 U.S. at 18).

The state itself recognizes that an appeal as of right

plays such a crucial role that “the State could not...

decide{] the appeal... arbitrarily” or otherwise deny

an appellant “fair procedure.” Evitts, 469 U.S. at 404.

We have held that inordinate and unexcused

delays in post-trial or post-conviction proceedings may

violate a convict’s “constitutional rights.” Codisgoti,

589 F.2d at 142. Several other courts of appeals have

identified the source of these rights as the Due Process

clause. See, e.g., Lowe v. vale 772 F.2d 308, 312

(7th Cir. 1985); DeLancy v. Caldwell, 741 F.2d 1246,

1247-48 (10th Cir. 1984); United States v. Pratt, 645

F.2d 89, 91 (lst Cir.). cert. denied, 454 U.S. 881

(1981); Rheuark v. Shaw, 628 F.2d 297, 302-04 (Sth

Cir. 1980). cert. denied, 450 U.S. 931 (1981);

McLallen v. Henderson, 492 F.2d 1298, 1299-1300

(8th Cir. 1974); Rivera v. Concepcion, 469 F.2d 17, 19

(1st Cir. 1972); Way v. Crouse, 421 F.2d 145, 146-47

(10th Cir. 1970); see also U.S. ex rel. Hankins v.

Wicker, 582 F. Supp. 180, 185 (W.D. Pa. 1984), affd

mem., 782 F.2d 1028 (3d Cir.), cert. denied. 107 S.Ct.

118 (1986); Mitchell v. Zimmerman, 582 F. Supp. 186,

187-88 (E.D. Pa. 1984). Delays such as those attendant

to Burkett’s convictions may therefore violate the

strictures of due process.

9ac Q

The Due Process clause thus protects not only

against delays in trial including senten a)

guarantees a reasonably speedv appeal if the State has

chosen to give defendants the right to attemptl] to

demonstrate that the convictio the consequent

drastic loss of liberty, is unla wful.” Evitts, 469 U.S. at

396. Where ict delays _n nly_impede

sentencing but as of right. the clause is

doubly implicated. “Due process can be denied by any

substantial retardation of the ate process.”

Rheuark, 628 F.2d at 302 (citing cases); see also

DeLancy, 74i F.2d at 1247 (same).

“[Pjroof of prejudice is generally a necessary but

not sufficient element of a due process claim.” United

States v. Lovasco, 431 U.S. 783, 790 (1977). Moreover,

State actions must be “fundamentally unfair,” not

merely undesirable, in order to violate due process.

See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637,

645 (1974). “However, . . . not every delay in the appeai

of a case, even an inordinate one, violates due process.”

Rheuark, 628 F.2d at 303. The existence of a due

process violation musi thus be left to an ad hoc

determination.

Because both the Due Process and Speedy Trial’

clauses constrain post-verdict delay, the Fifth Circuit

and the Tenth Circuit have looked to the four Barker

factors as a means of determining whether due process

has been violated. See DeLancy, 741 F.2d at 1247-48

(reviewing delays occasioned in securing appeal):

Rheuark, 628 F.2d at 302-04 (same). Because of both

the delay in sentencing and the gatekeeping role plaved

by sentencing in connection with Pennsylvania

appeals, we too face the same situation in Burkett's

cases. We agree that, as a general matier, the Barker

factors should alsc inform our due process

determination, for “the right to avoid unreasonable

delay in the appellate process is similar to the right toa

speedy trial.” DeLancy, 741 F.2d at 1247.

However, the Barker prejudice factor does not run

fully concurrently when examining delays in

sentencing and delays in initiating appellate review.

Compare Smith v. Hooey, 393 U.S. 374, 378-80

(1969), with Rheuark, 628 F.2d at 303 n.8. In

adapting the prejudice prong of the Barker analysis to

appellate delays, courts have identified three interests

in promoting prompt appeals:

(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

Rheuark, €28 F.2d at 303 n.8

The normal remedy for a due process violation is

. =r a

not discharge: rather. a court fa 1_a violation

should attempt tO counteract any resulting prejudice

démonstrated bv a petitioner. However discharse is

Warranted whe ng an alternate remedy

——————— ko ; 3 Mth

pie JS ne jundamental

Se Paes — ? err pee

unfairness ite a petitioner's

consfitut ' . iispoti. 589 F.2d at

142 (dist e f enetner a new trial

sh 1 be he he passage of time

the cha irk, 628 F.2d at

303 n.8 (if retrial (eu alter substantial delay on

_— er aaa

appeal. Barker applies 4 mn determining whether

the Speedy Trial clause should t ar such retrial)

in exceptionally egregious circumstances. a delay

itself may “yi ‘ate, (hose fundamental conceptions of

Justice which lie at the base of our civil and political

institutions’ and which define ‘the community's

Sense of fair play and decency.’” Lovasco, 43] U.S. at

790 (citations omitted). Once the time that constitutes

the delay has elapsed no remedy can call it back. Wh

delay is so extreme _as to assume constitutional

proportions, discharge thus becomes less of an

unlikely remedy.

Moreover, discharge is a generally available remedy

where lesser remedies prove ineffective in curbing a

continuing due process violation. Where a court order

has denied discharge on the condition that a lesser

remedy be granted, but that order has gone unfulfilled,

discharge is indeed appropriate. See, e.g., Lane v.

Brown, 372 U.S. 477, 485 (1963); Brady, 443 F.2d at

1309.

V. THE MERITS

We have found that due process and speedy trial

Claims may lie to rectify egregious delay in sentencing

and initiation of yppeal. We will therefore examine. in

light of the applicable legal principles just discussed,

the two state convictions that are encompassed by No.

86-3121, the habeas corpus petition in which Burkett

has exhausted his state remedies.

A. Nos. 140 and 141 of 1981

Burkett has now been incarcerated for well over six

years on 140/14] without a sentence. We analyze

Burkett's habeas appeal in light of this delay in

sentencing and the resulting delay in Burkett's ability

to appeal, as well as the disregard'with which the Blair

County court has met the previous federal court order

denying further relief on the condition that Burkett be

sentenced within 60 days -- an order that is now more

than two years old.

as Speedy Trial Violation

Under the law of the case, Burkett has established

a speedy trial violation. The district court found on May

30, 1985 that his right to speedy trial would be violated

unless Blair County resolved all post-verdict motions

and sentenced Burkett within 60 days in all of his

cases. The county did not challenge the mag

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