# Opposition Brief — Haberstroh v. Burkett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0382%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1992 - **Citation:** 505 U.S. 1229 ## Text EDITOR'S NOT] THE FOLLOWING PAGES WERE POOR HARD CoO! \T THE TIME OF FILMING. IF AND WHEN A BETTER COPY CAN BI OBTAINED, A NEW FICHI WILE. BE ISSUEI O 72A ‘ev. 8/82) Supreme Coy-+ QRicInAl 1 rike PEEOEPER a ides Am l/ 1999 q | “15 a oft. OFMCE OF THE Cu | 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 (Rev. 8/82) 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 I. 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 (Rev. 8/82) 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 40 72A Rev. 8/82) 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 iv | | 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 (Rev. 8/82) | ee Pe Ee ee ee ae ee ee ee 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) i] | , | AO 72A ) vi \O 72A Rev. 8/82) 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 Rev. 8/82) 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 viii AO 72A (Rev. 8/82) 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 2v. 8/82) 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 (Rev. 8/82) 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 4 KO 72A Rev. 8/82) 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 tev. 8/82) AO 72A (Rev. 8/82) 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: 072A 10 lev. 8/82) O 72A fev. 8/82) 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 11 10 72A Rev. 8/82} 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. 12 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: 13 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 14 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 15 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 16 072A lev. 8/82) 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 v. 8/82) 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 18 (Re 72A ’. 8/82) 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 20 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 4? 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 21 > 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. 22 ) 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 oe 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. 24 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. 25 A 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. 26 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 27 that supports the judgment of the lower court. Brown v. Allen, -S. 443, 459 (1953). Therefore, the issue that the os) L i a 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. 28 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. A. 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 29 O72A fev. 8/82) 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 30 ) 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). 31 272A ev. 8/82) B. 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 6 assumption” or develop a reasoned opinion or follow one of the 6 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.) 32 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.) 8 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.") 33 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, 10 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. ) 11 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.) 12 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 34 Al )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. 35 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. 37 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 - 4 ner . Citioner ~ ‘Alen! & , 2 A Sets a aa \) . . r-) ‘ 2 wihe ~ ? “ a oe | ii c nN N | ee ‘ r Pa ee = . . , } re ¢ ia 7A 8 \ ~- . en y) P yg ? . ‘uaa A . ~é Pa | a 1Q9aC/ . om N sOW 19 one oh ; i [ | fd LJ6oI;°comey re . 7 i o. 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Rveiicm & eo es 22.0 wa a eo 6ao -~ me cu Waa wae we was & ~ ~ Cars Lounse _ ~~ r= | tres WICH \ / h, er’ + -\ videntiary The ma = =v os Dece On whe d S answer). -> = oe Bite whem oun = "4 > neliefl ere re vlary to ), an A c val rt Eviden iswe u — this a “f e Co wh wae e) - - hed (attach ssue of was denied — = nm nr ar 1984 ich h eduled and heard on A en ty “a... h os t Septembe Ou u n Was resc a Ltion was denied. etl Ou ents trial. have foal aba months all docu (3) } lapsed since \ / . ‘ months havé e matte this ings be stayed and 2 (5) thi n 3 to Petitioner. ) all proceed + 7 to his case be delivered appeal to the Action 284 of 1982 an : rs anc yea ~ 7 - rIimin Criminal] ] ; er > > e a7 Aer eeT ei 54 ao “PU Gis ao“? de ~s a J Py a -~ aw . ~C vO, ©. Cosa VresCwmlialii a Se so ~ a ’ 7 7 1 & 7 roan. ea hs tui fsw.s C — e* . rimming es an a. ~*~ fa ~¢ Q Calis tec Weide wy Ms LVE Se y ¢ 9 Qev wt etlietiaGa ALLS LACN NUMDeY aUe Us a270an, = rons + + 55 ~k+ » anr ators Wa? 1a sre +A HWS we op cotror ee 4 GS pls zou Oe Came. + Gist VULIOC wide \- 2 Geo Vv hades vyY¥-sc v&.4 \~ a- . WS om ~ 7 A Aes - pie, 10295 - nors _ ~f t +75 a + tr c My G@we we etincwias, ACLLION 1 ; > \ 7 a veorea “ yeare #nr Sre hindred twe . Paonnery Tart 4 ~ / wird ops ~Veert OD FY VLL.ST BU eC? vnc. \ &GG | esther yy eV Glu “Ort e hare that «a oo mh G€30q nat avytoanA hacaan aw” a2 bere Fee ~CUPrcS Nave wid G&A CeLay 46 SOG NO. extend deyond the COLLeCvLlve ay> + rm at LT™NPrI conmen+ - Nf Ffanasao Ich rec + IF FARES Ae 5 im» ol a ore eee eae wwe ote We ee ee wee stas & - ~~» sewn Ul wo Nasemuis & iw ase wae ew ae hd we a ; a : , A+ Aer « «o + ~+ ma fFarnsea TRuyalaad Stentan ' ain Pairingd r > »Y > Jer ere > r ] =| r=) ; = S bWwe 2 CLLCC? @a Sentencing Pema 2z2clOs.& JIVallo, wii Olli we wha e £0UNCS, —\ De - Ar 17 A AAC = . - 4( = r ) Vey Ahead e WING yg wise ~ We whol NOOSPONCECN. res sO vs Ue y rpecieate Hho (> "+ +A dont anA 45 eM Co tho Patitaan A Wahera. “4 \ o es rd S \ im ws > 18) hy 1) > H4@ G on a‘ Vv G 4) >t Oo @ ce] 4) UV) RD fry Ay 9) G p4 G ~ hy oY oO 7 Dy hy ee) 7 ~ Q am | c Vv) at Oo mt om uv 8] Ay on ue) Se © “4 WY O-r r om mS rt nO CG O om 3 IN ee 7 FOR I IA _ \ : ©) a be ner . ob ty ak Ee a : vl netrre auerrras cok! ee 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! > ~ > , , > , 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. OD he eee a am ! U4 ge ro) | E “4 O v 8) Q uy e O z & { ) O > U - e wv @ v a 0) U EB GC @ Oy) wu “4 ~ ue) m4 O \ cs fe 1 \y 6) J ly ve) “ee “4 eS m4 ws O c a} 4) z foe) O u4 U ©) rh) \y 8] Ew 1) Oy QO, 4) = 3) W) @ 4 @) 7s) P - i] ro 7) oO a4 r18 | “4 O £3 Xa 4J a) . 2 7 “4 S, O er es Oo ~ ly ~ \ O OV O 43 E ly 6) Cc 4 @) @) Toa) 4 @) to Ww J “4 oS U O | “4 NN +8) @ ” ™ 3 U0 \y “4 cw “4 wo Pe. 4) i ! oO : a e = £2 J ‘é) rw) 4 Va) = oof 8 | oO W) cS “4 4) O U ® a aa Le 8) ©) 4J () ro | | 4J \y on | \y 4 @ | La Oa) E4 rt 4 4 ~ VY J iJ mW cc a4 J % i> . 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J N U 4 ba rs) G aa) uy Uv c \y \ Vv wv an wo v oO 0] 4) WwW 4) @ 4 O J 4 Ou 0] ; CG OV cf G O ie) 4J > 4 O a 9 “4 G an Ww a) SS 4 c 7S 1.) Li} Vv a u 4 \ ty) 4J O O U s et La 4) ~ i) ~ =] 9) rs] 7) 8) oA a) m rw) od uN wy rd co ne) 7S 0] W) v9) > Be a YY ; oc N ia) r4 0) Ae) Oo c iu 4 ~ > i w fon) ~ w” Au Ae) = O @) N ® W) “4 @] con! > -_ \y ® 4 @) v U > co se] 0 G \y Vv ; Cc U G ON +2 ON Mu Qa Wa wo Ou wv O Cc ri | » 7S) 1] re >t ba O i mS ist Oo ” 79) “4 w “4 @ by > OU 0 E O ~ iw Oo ef - 8 re rd ie] aa 4 oO w) oe rd Ou i) J 73) 9) wo r 4J U 4J 0) “4 i @) N G ; w) an » w) | © " Ww) Y Cc | a) a GC Qu: “4 4 cD) ny 1) or4 w Oo oa] a U | . 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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) ee 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 te re) th {= ct an | 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 4 -r4 elelababitathiathl— i mss e? “4 l- - - pe = ar - ne t} many hat so n al eo a ead 6 WwW ONE et a i ame ee pte ee 04) w W) Ba ca] cB) | 10] c4 Ww ¢ 4 £ " xe > z 0 A ™N 4) a J 4) 4 ty . 4J re) Oo U C2 ~ \y “4 . fra \y A c c = 4 @ | 7S) ) . 4) wv 2) xo O 1) = w) \y va) 77) J ” nr U uy m™ B a) oO un rie @” ue) 1) ue) w | 6) wo wo A o- O 4J 9] uy “a 8) \y m 4J w4 4 @) i | 4 8) mm ef ~ ~ ° oO Oo 4) “4 ri] i) Qu ue) 13) - i) _ rs) r+) s wd “4 ed w Cc —™N a Loa) > 1) w CS m Cc cv) B) foe) oe ™ ri) oO J ed ‘eS uU) qQ) ef rt Cc O7V QO O7*\ \y \ U wo GC Q w wd mW rH) cd 4 oy OQ, 8) cD) a Oo a O \y U B =] ~ eA 7 ‘o) 4 a S| fie) “m4 oO 9) cS O J > 7) se) ” CC + > -r i) re) 4 O |e 4 mw mW a) 4) rt) ly OV “4 "er § J | ; W4 \y = et ° oa - v fF: wv Y a dS @ WY > c 4) O = Oy ts > uu Oo . V a8] Ww . 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Attnrnor far Ann > rnf Attoi icy JOT 4 MHECLUICL APPENDIX "ne ‘ ‘ 4 ie 4 x = 4 ‘ he ~ 4 ? ‘ + A > \ be re ~ ~ S ¢ A > vw S ~ ~ x Ss S e e ~ XI — C i ~ eras ) la +0O-+ NX 72 ‘ “> "4 We ' é T ‘ t y >| \ ii S a ~ | Wee I Sé t . ~ Ss il a 1al months j during the > . ? ) Stale iJ VC ic¢ Coo Nc So 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 3 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 0 t 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. oO In 140/141, Burkett was convicted on November 17, 1981 of some charges? and av ~ ¢ replies ‘ ? r 4 ‘ } T ~ 2 aT 3 appDedai SOUURII iS y + i iS ent 5 Meet Siam Cackes , aA : _ Cidallll 4 2 4 ia pt S vriday IS Sivino P sir nt at i ef centence hin nad expost il l a I ¢ Vila y § mn . - . — No S- | YE J Fr i221 r pea SSF ed sin if ‘TY va rr ° r an a 4 4 ’ _ | } » 4 r CialmMs ricci i ly I i+ +i alld i I in Nin &Ré 7A thy — a niacnhor a all in iN ) + \ ers Gated sSeplemvu¢ LY afn County Cou! pased on respondent S Slalé entSa ne 1 } ¢ Aa +t } > rin $:reEVerT mn Lat thea 1CalI ili, I) Wey i LOUTIG Lfla i1¢é . _ : — matter h:- Cs ly bey 2 ir ¢ mnt matter NaS ilnMdily bv [Blair OuNnTY tf mnarn ] mnelliat I norma appeCiial€ 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 ——— ‘ 1s r - cic lisposed r — + a app¢ . ~ rt where in th ere pr dure the merits the pe g ssue of delay can be address . E me ybie ted that e ha x 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 13 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) 16 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) 17 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 18 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”); 19 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. 20 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) 21 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 22 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 23 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 b~ 24 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) 25 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 20 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 impor [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0382%3A3. Public record. Not legal advice.