Amicus Curiae Brief — Haberstroh v. Burkett

&3 |) Abe 2 olmme

No. 91-1522 |

IN THE SUPREME COURT OF THE UNITED[SQARRS co oo

FILED

OCTOBER TERM, 1991 APR >

<0 3992

WILLIAM J. HABERSTROH, [DPHCE OF THE CLERK

DISTRICT ATTORNEY OF BLAIR COUNTY,

PENNSYLVANIA, et al.,

Petitioners

Ve

WAYNE PAUL BURKETT,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF OF AMICUS CURIAE MISSISSIPPI

AND OTHER AMICI LISTED ON THE INSIDE

COVER* IN SUPPORT OF PETITIONER

MIKE MOORE

ATTORNEY GENERAL

MARVIN L. WHITE, JR.

Assistant Attorney General

Counsel of Record

Office of the Attorney General

Carroll Gartin Justice Building

P.O. Box 220

Jackson, MS 39205

(601) 359-3680

*Each sponsored according to Rule 37.5 by

its Attorney General as listed on the

inside cover.

The Honorable Michael J. Bowers

Attorney General of Georgia

Office of Attorney General

Department of Law

132 State Judicial Building

Atlanta, GA 30334

The Honorable Elizabeth Barrett-

Anderson

Attorney General of Guam

Office of Attorney General

Department of Law, Suite 701

238 Archbishop F.C. Flores St.

Agana, GU 96910

The Honorable Tom Udall

Attorney General of New Mexico

Office of Attorney General

Bataan Memorial Building

Galisteo Street, P.O. Box 1508

Santa Fe, NM 87504-1508

The Honorable James H. Evans

Attorney General of Alabama

Office of Attorney General

State House

11 South Union Street

Montgomery, AL 36130

The Honorable Charles E. Cole

Attorney General of Alaska

Office of Attorney General

State Capitol

P.O. Box K

Juneau, AK 99811-0300

The Honorable Grant Woods

Attorney General of Arizona

Office of Attorney General

1275 West Washington

Phoenix, AZ 85007

The Honorable Richard N. Palmer

Chief State’s Attorney

State of Connecticut

340 Quinnipiac Street

Wallingford, CT 06492

The Honorable Charles M. Oberly, III

Attorney General of Delaware

Office of Attorney General

8th Floor

820 North French Street

Wilmington, DE 19801

The Honorable Robert A. Butterworth

Attorney General of Florida

Office of Attorney General

Department of Legal Affairs

The Capitol, PLOl

Tallahassee, FL 32399-1050

The Honorable Larry EchoHawk

Attorney General of Idaho

Office of Attorney General

State House

Boise, ID 83720

The Honorable Linley E. Pearson

Attorney General of Indianna

Office of Attorney General

219 State House

Indianapolis, IN 46204

The Honorable Chris Gorman

Attorney General of Kentucky

Office of Attorney General

State Capitol, Room 116

Frankfort, KY 40601

The Honorable Richard Ieyoub

Attorney General of Louisiana

Office of Attorney General

Department of Justice

2-3-4 Loyola Building

New Orleans, LA 70112-2096

The Honorable Frank J. Kelley

Attorney Generel of Michigan

Office of Attorney General

Law Building

525 West Ottawa, P.O. Box 30212

Lansing, MI 48909

The Honorable William L. Webster

Attorney General of Missouri

Office of Attorney General

Supreme Court Building

101 High Street, P.O. Box 899

Jefferson City, MO 65102

The Honorable Marc Racicot

Attorney General of Montana

Office of Attorney General

Justice Building

215 North Sanders

Helena, MT 59620-1430

The Honoranble Don Stenberg

Attorney General of Nebraska

Office of Attorney General

State Capitol

P.O. Box 98920

Lincoln, NE 68509

The Honorable Frankie Sue Del Papa

Attorney General of Nevada

Office of Attorney General

Heroes Memorial Building

Capitol Complex

Carson City, NV 89710

The Honorable Robert J. Del Tufo

Attorney General of New Jersey ~-

Office of Attorney General

Richard J. Hughes Justice Complex

25 Market Street, CN080

Trenton, NJ 08625

The Honorable Lacy H. Thornburg

Attorney General of North Carolina

Office of Attorney General

Department of Justice

2 East Morgan Street, P.O. Box 629

Raleigh, NC 27602

The Honorable T. Travis Medlock

Attorney General of South Carolina

Office of Attorney General

Rembert Dennis Office Building

1000 Assembly Street

Columbia, SC 29211

The Honorable Mark Barnett

Attorney General of South Dakota

Office of Attorney General

500 E. Capitol

Pierre, SD 57501-5070

The Honorable Jeffrey L. Amestoy

Attorney General of Vermont

Office of Attorney General

Pavilion Office Building

Montpelier, VT 05602

The Honorable Mary Sue Terry

Attorney General of Virginia

Office of Attorney General

5th Floor

101 North 8th Street

Richmond, VA 23219

The Honorable Mario J. Palumbo

Attorney General of West Virginia

Office of Attorney General

State Capitol

Charleston, WV 25305

The Honorable Joseph B. Meyer

Attorney General of Wyoming

Office of Attorney General

123 State Capitol

Cheyenne, WY 82002

QUESTIONS PRESENTED

The Petitioner presents the following

questions:

1. Does the Sixth Amendment’s

Speedy Trial Clause apply not only to

delay before a criminal trial, when the

defendant is presumed innocent, but also

to proceedings after he has been found

guilty?

2. May a court find a constitution-

al 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?

3. May a court remedy any such

violation by directly reducing the defen-

dant’s sentence in proportion to the

length of the delay?

Questions Presented . .

Table of Authorities

Interest of Amici Curiae

Summary of Argument .

Argument

Comeiusion ...«

ii

z E_ OF A RITIE

ase Page(s)

Barker v. Wingo,

407 U.S. 514 (1972) .... passim

Beavers v. Haubert,

198 U.S. 77 (1908) ....+.+2+. 5, 8

Brady v. Maryland,

373 U.S. 83 (1963) . . «© «© «© «© «© 22

Brooks v. United States,

423 F.2d 1149

(8th Cir. 1970), cert. denied,

400 U.S. 872 (1970) ...+2+-2.-e 122

Burkett v. Cunningham,

826 F.2d 1208 (3d Cir. 1987) 13, 20

Burkett v. Fulcomer,

951 F.2d 1431 (3d Cir. 1991) . 2, 6,

Fe Sh, A

Coe v. Thurman,

922 F.2d 528 (9th Cir. 1990) .. 18

Dillingham v. United States,

Gee Ue. GH (EPPO) 2 co te st te ew) «690

Doggett v. United States,

906 F.2d 573 (llth Cir. (1990),

cert. granted, 111 S.Ct. 1070

), reh’g. granted, 112 S.Ct.

1991), (No. 90-857). . .. . 15

Douglas v. California,

372 U.S. 353 (4963) «© «© = » © «© 2

iii

Cases (Contd. ) Page(s)

Erbe v. State,

276 Md. 541, 350 A.2d 640 (1976)

25 Mae App. 375, 336 A.2d 129

(1975) aff'd, 276 Md. 541,

350 A.2d 640 (1976)

Vv. vy

112 S.Ct. 475 (1991)

Evitts v.

469 U.S. 387 (1985)

Fsankel v. Woodrou

7 F.2d 796 (8th. Cir. 1925)

riffin v. Illino Ss,

Fe Pe (1956)

Harris v. Champt n,

938 F.2d 1062 (10th Cir. 1991)

Harris v. Reed,

489 U.S. 255 (1989)

Harrison v. d States,

392 U.S. 219 (1968)

Hill v. R

942 F.2d 1494 (10th Cir. 1991)

Lewis v. Jeffers,

497 U.S.

110 S.Ct.~3092 (1990)

athis v. Hood,

937 F.2d 790 (2d Cir. 1991)

iv

12

12

26

25

23

Cases (Contd. ) Page(s)

McKane v. Durston,

153 U.S. 684 (1894) .....2.. 18

Moore Vv. Arizona,

414 U.S. 25 (1973) . . «© «© « « » 285

Perez v. Sullivan,

793 F.2d 249 (10th Cir.

1986), cert. denied,

479 U.S. 936 (1986) .....-. 16

Pollard v. United States,

; 352 U.S. 354 (1957) ....-. 8, 9,

10, 14

Pulley v. P

465 0.8. 37 (1984) .... ss + 26

Sands _v. Cunningham,

617 F.Supp. 1551 (D.N.H. 1985) . 18

Sawyer v. Smith,

110 §.Ct. 2822 (1990) ..... 24

Simmons v. Reynolds,

898 F.2d 865 (2d Cir. 1990) .. 18

Smith v. Phillips,

455 U.S. 209 (1982) ...... 24

State ex rel. McLellan v. Cavanaugh,

127 N.H. 33,

498 A.2d 735 (1985) ....e+ +e. 17

State v. Adkins,

725 S.W.2d 660

(Tenn. 1987), cert. denied,

462 0.8. 909 (1987) ..«. « «© «© «

ieee

Cases (Contd. )

State v. Drake,

259 N.W.2d 862 (1977)

tate v. Johnson,

363 So.2d 458

(La. 1978)

trickland v. Washington,

466 U.S. 668 (1984)

Teague v. Lane,

489 U.S. 288 (1989)

nited ates v. Ewel

383 U.S. 116 (1966)

United States v. Lovasco,

431 U.S. 783 (1977)

United States v. MacDonald,

456 U.S. 1 (1982)

United States y. Marion,

404 U.S. 307,

nited States v. Mor ison,

(1971)

449 U.S. 361 (1981)

10, 12,

Sy

10,

nited ates v. Valenzuela-Bernal,

458 U.S. 858 (1982)

Wainwright v. Goode,

464 U.S. 78 (1983)

Wright v. West,

931 F.2d 262 (4th Cir.

cert. granted,

(1991), and 112 S.ct. 672

(No. 91-542)

1991)

112 S.Ct. 656

vi

12

21

21

12

22

22

24

Constitution and Statutes Page(s)

U.S. Const.:

Amend. VI, sted Trial

Clause;.. . . »- «+ «+ passim

Amend. XIV, Due Process

Pen - « 6 se ke oe ue lhl! hu Ze ee

26 U.8.C. @ 2254 «2.25 © es se se 23

Miscellaneous -

Arkin, Speedy Criminal Appeal:

A Right Without a Remedy,

74 Minn. L.Rev. 437 (1990) ... 19

Chapper & Hanson, Taking the Delay

Out of Criminal Appeals,

27 dJudge’s J. 7 (1988) . .... 19

D. Meador, Appellate Courts:

Staff and Process in the Crisis

of Volume (1974) ....+-+-s.-. 219

Dalton, Taking the Right to Appeal

(More or Less) Seriously,

95 Yale L.J. 62 (1985) ..... 19

vii

INTEREST OF AMICI CURIAE

Amici curiae are States, each of

which views the unwarranted expansion of

the writ of habeas corpus by lower federal

courts, as a threat to the integrity of

state criminal_justice systems caused by

the erosion of the finality of state-im-

posed judgments of sentence. The decision

of the Third Circuit Court o£ Appeals,

reducing the habeas corpus petitioner’s

state-imposed sentence of imprisonment by

thirty-nine months on account of delay in

post-conviction proceedings, constitutes

an egregious example of that threat come

to fruition.

The decision of the Third Circuit is

premised upon a faulty constitutional

analysis, which this Court should correct.

The case presents an important vehicle for

the Court to Clarify the proper role of

federal courts in reviewing claims of

1

)

post-conviction delay asserted by state

prisoners. The amici States believe that

delay in post-conviction proceedings is

not governed by the Sixth Amendment’s

Speedy Trial Clause. Moreover, the States

believe that no matter what analysis is

applied, a state prisoner should be re-

quired to establish a nexus between the

delay and his ability tc proceed at sen-

tencing or on appeal in order to be enti-

tled to any relief.

Accordingly, the amici States urge

this Court to review the Court of Appeals

decision in Burkett v. Fulcomer, 951 F.2d

1431 (3d Cir. 1991).

SUMMARY OF ARGUMENT

This case presents the question of

the proper role, if any, of the federal

court when a state prisoner seeks habeas

corpus relief due to delay in post-convic-

tion proceedings. This Court has never

definitively determined whether the Con-

Stitution provides a vehicle to remedy

such delay. The Third Circuit’s applica-

tion of a Sixth Amendment Speedy Trial

Clause analysis to post-conviction- pro-

ceedings was not required by the Consti-

tution or by this Court’s precedent. Such

an analysis is Simply inapplicable after

trial.

Having improperly couched its analy-

Sis of the post-conviction delay in con-

Stitutional terms, the Court of Appeals

crafted a remedy--sentence reduction pro-

portionate to the delay--which displaces a

legal state sentence imposed upon a crimi-

3

nal, who has already received credit

against his sentence "for the prison time

served post-arrest" 951 F.2d at 1436,

n.5, and whose substantive challenges to

his conviction have all been determined to

be meritless.

This Court should grant review to

correct the Third Circuit’s decision which

erodes the finality of judgments of sen-

tence by shortening a dangerous criminal’s

incarceration contrary to the public in-

terest, and which provides the criminal

with a undeserved windfall.

ARGUMENT

1. The amici States recognize the

need to resolve all phases of criminal

proceedings expeditiously. The Sixth

Amendment ensures that "[i]n all criminal

prosecutions, the accused shall enjoy the

right to a speedy and public trial...."

.

ee

U.S. Const. Amend. VI. The requirement of

&@ speedy trial does not stand alone in the

Constitution. It is part and parcel of

the full panoply of safeguards protecting

those presumed innocent. "{Ijn large

measure because of the many procedural

safeguards provided an accused, the ordi-

nary procedures for criminal prosecution

are designed to move at a deliberate pace.

A requirement of unreasonable speed would

have a deleterious effect both upon the

rights of the accused and upon the ability

of society to protect itself." United

States v. Ewell, 383 u.s. 116, 120 (1966)

"The right of a speedy trial is necessari-

ly relative. It is consistent with delays

and depends upon circumstances. It se-

cures rights to a defendant. It does not

preclude the rights of public justice."

Beavers v., Haubert, 198 U.S. 77, 4x87

(1905).

The respondent, Wayne Paul Burkett,

received the benefit of each and every

procedural safeguard to which he was enti-

tled at trial. The Third Circuit agreed

with the state trial and appellate courts

that no error required retrial. See

Burkett v. Fulcomer, 951 F.2d 1431, 1448-

1449 (3d Cir. 1991) (evidence sufficient

to prove beyond a reasonable doubt that

Burkett entered victim’s dwelling with

specific intent to commit rape,! where

“perpetrator described sexual acts which

the victim was to perform, wielded a

knife, and unzipped his pants"; evidence

sufficient to convict of recklessly endan-

lin Wright v. West, No. 91-542, 931

F.2d 262 (4th Cir. 1991), cert. granted,

112 S.Ct. 656 (1991) and 112 S.Ct. 672

(1991), this Court is presently consider-

ing the appropriate role of federal courts

in reviewing the state court’s application

of law to the specific facts of a state

prisoner’s case in a habeas corpus pro-

ceeding.

gering, where Burkett “brandished a knife

and threatened to slit the throat of the

victim"; identification evidence admitted

consistent with due process where victim

had prolonged face-to-face encounter with

defendant. )

The Court of Appeals granted Burkett’s

request for habeas corpus relief, not ona

finding of a constitutional violation at

trial, but rather on a finding that the

cumulative impact of delays in sentencing

and appeal disposition caused Burkett to

"suffer[] the deprivation of a constitu-

tional right." 951 F.2d at 1431. To

reach this conclusion, the Court of Ap-

peals applied the Sixth Amendment Speedy

Trial Clause to sentencing delay and ap-

plied a Sixth Amendment analysis, under

the rubric of the Due Process Clause, to

appellate delay. In short, the Court of

ee

Appeals applied Barker v. Wingo, 407 U.S.

514 (1972) to post-conviction delay.

The Speedy Trial Clause analysis set

forth in Barker was not designed to be

applied to the period after trial and it

does not suit that purpose.

The only time this Court considered

the question of whether the rights guaran-

teed by the Speedy Trial Clause extend

beyond the fact-finder’s guilty verdict

was in Pollard v. United States, 352 U.S.

354 (1957). In Pollard, the Court "as-

sume[d] arguendo that sentence is part of

the trial for purposes of the Sixth Amend-

ment." Id. at 361. However, the Court

found the two year delay in sentencing in

Pollard did not require a remedy. "Wheth-

er delay in completing a prosecution such

as here occurred amounts to an unconstitu-

tional deprivation of rights depends upon

the circumstances. See e.g. Beavers v.

8

Haubert, 198 U.S. 77, 87; Frankel _v.

Woodrough, 7 F.2d 796, 798 (Sth Cir.

1925}. The delay must not be purposeful

or oppressive. It was not here."?

The Petitioner points out that the

assumption in Pollard has been viewed as

established law by a number of state and

federal courts without resort to the text

of the Constitution or any exposition of

rationale. (See Pet. at pp. 20-23, nn.

4-7)

Pollard, however, left open the ques-

tion of the Speedy Trial Clause’s applica-

bility to the period after conviction. A

number of well-reasoned decisions by state

appellate courts have rejected both the

The four dissenters in Pollard did so

because the sentencing procedure did not

conform to the Federal Rules of Criminal

Procedure, not on the basis of the Sixth

Amendment. "(I]t is not necessary to

decide this issue. on constitutional

grounds." Id. at 368 (dissent).

9

Pollard assumption as well as the applica-

bility of a Barker analysis after convic-

tion. Holding that the guarantee of a

speedy trial does not extend to sentenc-

ing, the Supreme Court of Louisiana

opined:

When the words are given their

fair import in connection with

the context, both clauses [state

and federal speedy trial claus-

es] are properly construed as

referring to the adversary hear-

ing that determines guilt or

innocence. By its terms, the

Sixth Amendment applies to an

accused. See Dillingham v.

United States, 423 U.S. 64;

United States v. Marion, 404

U.S. 307 (1971). It refers "to

a speedy and public trial, by an

impartial jury." The Amendment

later assures the right to be

confronted by the witnesses and

the right to compulsory process

to secure the witnesses....None

of the language in either clause

is relevant to sentencing.

State v. Johnson, 363 So.2d 458, 460 (La.

1978). See also Pet. at p. 24, n. 8 (col-

lecting state cases which have declined to

10

extend the speedy trial guarantee beyond

the end of trial).

As correctly noted in Johnson,

"{O)ther principles Support the view that

sentencing is not part of the traditional

notion of trial. The term ‘trial’ is de-

fined as the proceedings to determine a

defendant’s guilt or innocence, commencing

with the empaneling of the jury and ending

with a rendition of the verdict." Id., at

461.

Moreover, extension of the speedy

trial guarantee to post-conviction pro-

ceedings would not further the consider-

ations underlying the guarantee:

Three considerations underlie

the -right to a speedy trial: to

prevent undue and oppressive

incarceration prior to trial; to

minimize anxiety and concern

accompanying public accusation;

and to limit the possibilities

that long delay will impair the

ability of an accused to defend

himself. Barker _v. Wingo, 407

U.S. 514, 92 §.Ct. 2182, 33

11

L.Ed.2d 101 (1972); United

S_v. ion, 404 U.S. 307,

92 S.Ct. 455, 30 L.Ed.2d 468

(1971); United States v. Ewell,

383 U.S. 116, 86 &.Ct. 773, 15

L.Ed.2d 627 (1966). None of

these concerns apply to a delay

between conviction and sentenc-

ing. Brooks v. United States,

423 F.2d 1149 (8th Cir. 1970);

State v. Drake, Iowa, 259 N.W.2d

862 (1977); Erbe v. State, 276

Md. 541, 350 A.2d 640 (1976),

quoting from Erbe v. State, 25

Md .App. 375, 336 A.2d 129

(1975). Obviously, the evils of

lengthy pretrial detention and

impeded trial defenses are ir-

relevant after conviction. The

factor of anxiety of the accused

refers to a presumptively inno-

cent defendant who must live

under a cloud of suspicion until

he has an opportunity to estab-

lish his innocence. Erbe _ v.

State, supra.

State v. Johnson, id. at 461.

Under Barker, the speedy trial claim

is determined by assessment of four fac-

tors: "Length of delay, the reason for

the delay, the defendant’s assertion of

his right, and prejudice to the defen-

dant." 407 U.S. at 514. (Footnote omit-

12

ted. ) The anomalous result caused by

lifting Barker from the trial context and

applying it post-conviction is demon-

Strated here.

In its first consideration of

Burkett’s claim for relief, the Third Cir-

cuit found the length of the post-convic-

tion delay was not sufficient to excuse

the statutory requirement that Burkett

exhaust his state remedies. Burkett v.

Cunningham, 826 F.2d 1208, 1218 (3d Cir.

1987) (affirming dismissal for lack of

exhaustion at the time Burkett’s case had

been determined by the intermediate appel-

late court and his request for further

discretionary review was pending with the

Pennsylvania Supreme Court. ) On second

consideration the Third Circuit deemed the

post-conviction delay sufficient to trig-

ger constitutional analysis of the other

13

Barker factors. Burkett v. Fulcomer, 951

F.2d 1431, 1439, 1445 (3d Cir. 1991).

The reason for the delay was "not the

' type of purposeful activity proscribed in

Pollard, 352 U.S. at 361, the delay at-

tributable to the congested calendar falls

into a non-intentional, but negligent area

of administrative overload for which the

government must assume responsibility."

951 F.2d at 1440. Although not purposeful

or oppressive, under Barker, the delay was

weighed against the State. Id.

The Third Circuit found that Burkett

adequately urged the disposition of his

case. Id. at 1441.

The most troubling aspect of the

Court of Appeals’ Barker analysis is the

finding of prejudice. It is one thing to

hold that even in the absence of preju-

dice, an accused who is still presumed

innocent may assert a speedy trial claim.

14

Moore v. Arizona, 414 U.S. 25, 26 (1973)

It is another thing to premise a finding

of constitutional deprivation to a convict

upon post-conviction "prejudice" that, as

the dissent observed, "has apparently had

no impact whatsoever on the sentence im-

posed, the amount of time he will spend in

custody, or the disposition of his

appeal." Burkett v. Fulcomer, 951 F.2d at

1451 (dissent). The bases for the finding

of prejudice here are merely facts of life

consistent with the jury’s determination

of guilt. Burkett was incarcerated in

county jail and was uncertain about the

length of his sentence and disposition of

his appeal. Id. Impact on his defense

3The continued viability of Moore v.

Arizona is pending before this Court in

Doggett v. United States, No. 90-857,

reported below at 906 F.2d 573 (llith Cir.

1990), cert. granted. 111 S.Ct. 1070

(1991), xeh’q. ranted, 112 S.Ct. 631

(1991).

15

was irrelevant since he was not entitled

to a new trial.

Other state and federal courts which

have applied Barker in the post-conviction

setting have uniformly recognized the need

to alter the analysis of prejudice. See

e.g. Perez v. Sullivan, 793 F.2d 249, 254

(10th Cir. 1986), cert. denied, 479 U.S.

936 (1986) ("The alteration of defendant’s

status from accused and presumed innocent

to guilty and awaiting sentence is a sig-

nificant change which must be taken into

account in the balancing process. Once

guilt has been established in the first

instance the balance between the interests

of the individual and those of society,

shift proportionately. ") The Court in

Perez explicitly declined to find preju-

dice, for constitutional purposes, in

circumstances akin to Burkett’s: "We

decline to attach Sixth Amendment speedy

16

trial dimensions to amenities and benefits

a convicted felon might receive in one

prison but not another." id. at 257.

"Furthermore, the anxiety of an accused is

not to be equated for constitutional pur-

poses with anxiety suffered by one who is

convicted, in jail, unquestionably going

to serve a sentence, and only waiting to

learn how long that sentence will be."

id. See also State ex rel. McLellan Vv.

Cavanaugh, 127 N.H. 33, 498 A.2d 735

(1985) (Then state Supreme Court Justice

Souter applying Barker analysis, but de-

Clining to find constitutional violation

where "[nJothing suggests that the defen-

dant will serve so much as a day longer as

a result of the delay.")

2. The need for a different approach

is even more evident when the delay comes

at the appellate stage.

17

This Court has never considered the

question of whether the United States

Constitution guarantees a speedy criminal

appeal.* There is no constitutional re-

quirement that a State provide an appeal

at all. "It is wholly within the discre-

tion of the State to allow or not to allow

such a review." McKane v. Durston, 153

U.S. 684, 687 (1894). A State which con-

fers a right of appeal is free to do so

‘As with sentencing delay, a number of

lower federal courts have applied Barker

to appellate delay. See e.g. Simmons v.

Reynolds, 898 F.2d 865 (2d Cir. 1990); Coe

v. Thurman, 922 F.2d 528 (9th Cir. 1990);

Harris v. Champton, 938 F.2d 1062 (10th

Cir. 1991); Hill v. Reynolds, 942 F.2d

1494 (10th Cir. 1991); contra see e.g.

State v. Adkins, 725 S.W.2d 660 (Tenn.

1987), cert. denied, 482 U.S. 909 (1987);

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

Sands v. Cunningham, 617 F.Supp. 1551,

1566 (D.N.H. 1985).

18

“upon such terms as in its wisdom may be

deemed proper." Id., at 687-88.°

"The number of criminal appeals has

doubled over the last decade -- a rate

greater than the increase in crime, ar-

rests, and trials over the same period. "®

Where the State establishes a system of

appeals as of right, it must do so in

accordance with the Equal Protection and

Due Process Clauses of the Constitution.

Griffin v. Illinois, 351 U.S. 12, 20

SAll states presently provide defen-

dants some form of appeal from a criminal

conviction. Griffin v. Illinois, 351 U.S.

12, 18 (1956) (plurality); Dalton, Taking

the Right to Appeal (More or Less) Seri-

ously, 95 Yale L.J. 62, 62 n.2 (1985);

Arkin, Speedy Criminal Appeal: A Right

Without a Remedy, 74 Minn. L.Rev. 437,

444, n.26 (1990)

SChapper & Hanson, Taking the Delay

Out of Criminal Appeals, 27 Judge’s J. 7,

7 (1988); see also D. Meador, Appellate

Courts: Staff and Process in the Crisis

of Volume 138-39 (1974) (criminal appeais

in Illinois, Nebraska, New Jersey, and

Virginia accounted for 50%-60% of all

docketed cases.)

19

(1956) (plurality); Douglas v. California,

Lucey, 469 U.S. 387, 405 (1985). The

Speedy Trial Clause is inapplicable.

Consider Harrison v. United States, 392

U.S. 219, 221 n.4 (1968) (petitioner’s

contention that his right to speedy trial

was violated found to be wholly without

merit where "[v]Jirtually all of the delays

of which petitioner complains occurred in

the course of appellate proceedings and

resulted either from the actions of peti-

tioner or from the need to assure careful

review of an unusually complex case.")

According to the Third Circuit,

"[t]he Due Process Clause thus protects

not only against delays in trial, includ-

ing sentencing; it also guarantees a rea-

sonably speedy appeal if the state has

chosen to give defendants the right to

[appeal.]" Burkett v. Cunningham, 826

20

F.2d 1208, 1208 (3d Cir. 1987). A Four-

teenth Amendment Due Process Clause analy-

sis differs from a Sixth Amendment Speedy

Trial Clause analysis. Although proof of

prejudice may not be required under the

Sixth Amendment, “proof of prejudice is

generally a necessary but not sufficient

element of a due process claim." United

States v. Lovasco, 431 U.S. 783, 790

(1977). "The Sixth Amendment right to a

speedy trial is thus not primarily intend-

ed to prevent prejudice to the defense

caused by the passage of time; that inter-

est is protected primarily by the Due

Process Clause and by statutes of limita-

tions." United States v. MacDonald, 456

U.S. 1, 8 (1982).

In determining the proper remedy for

constitutional violations (or, in some

instances, determining whether there was a

violation at all), this Court has focused

21

sharply on the prejudicial effect of the

challenged conduct on the truth-determin-

ing process. See e.g. United States v.

Morrison, 449 U.S. 361, 365-367 (1981)

(rejecting dismissal of indictment as an

appropriate remedy for an intentional

interference with the defendant’s right to

counsel that did not prejudice the defen-

dant); Strickland v. Washington, 466 U.S.

668 (1984) (showing of prejudice to de-

fense is a necessary component of claim of

ineffective assistance of counsel); United

States v. Valenzuela-Bernal, 458 U.S. 858,

873 (1982) (to establish violation of

Sixth Amendment right to compulsory pro-

cess, defendant must make a plausible

showing that deported witnesses testimony

would have been material and favorable to

the defense); Brady v. Maryland, 373 U.S.

83 (1963) (suppression of exculpatory evi-

22

dence violates due process only if it is

material to guilt or punishment. )

The Court of Appeals did not require

any nexus between the delay and the out-

come. None was present.’ Other Courts of

Appeals require that a nexus be shown.

See e.g. Mathis v. Hood, 937 F.2d 790, 794

(2d Cir. 1991) ("some showing of prejudice

to the appeal is necessary for habeas

relief.") Where, as here, the delay is

attributable® to State courts which "are

coequal parts of our national judicial

’The inadequacy of the Barker analysis

and the Third Circuit’s application of it

is even more telling in the discussion of

appellate delay. See 951 F.2d 1431, 1445-

48 (shortening Burkett’s term of imprison-

ment by ten months of the eighteen month

appeal disposition period, as a remedy for

the trial court’s delay in filing an opin-

ion. )

’The conclusion of the Third Circuit

that the district court’s attribution of

the delay, in part, to Burkett was "clear-

ly erroneous" is certainly questionable.

See Pet. at pp. 35-38.

23

system and [which] give serious attention

to their responsibilities for enforcing

the commands of the Constitution[,]" Saw-

yer _v. Smith, 110 S.Ct. 2822, 2831,

(1990); the limited scope of the writ of

habeas corpus pursuant to 28 U.S.C. § 2254

must be observed.

This Court has emphasized that the

scope of habeas corpus is limited by "in-

terests of comity and finality." Teaque

v. Lane, 489 U.S. 288, 308 (1989); see

also Harris v. Reed, 489 U.S. 255 (1989).

The Third Circuit’s decision impermissibly

expands the scope of habeas corpus and is

at odds with the purpose of section 2254.

"It is axiomatic that federal courts may

intervene in the state judicial process

only to correct wrongs of a constitutional

dimension." Wainwright v. Goode, 464 U.S.

78, 83 (1983); Smith v. Phillips, 455 U.S.

209, 221 (1982) ("Federal courts hold no

24

supervisory authority over state judicial

proceedings and may intervene only to

correct wrongs of constitutional dimen-

sion.")

Reduced to its essence, the Third

Circuit imposed a constitutional penalty

against societal interests, as embodied by

the unified judicial system of Pennsylva-

nia. For noncompliance with the Pennsyl-

vania Rules of Appellate Procedure (10

month delay in opinion-writing) and for

variance from normal local post-trial

procedures (nonissuance of briefing sched-

ule by court administrator; delay in tran-

script preparation--allegedly totaling 29

months) society will be exposed to this

dangerous criminal an additional 39

months.

This Court has "stated many times

that ‘federal habeas corpus relief does

not lie for errors of state law.’ Lewis

25

v. Jeffers, 497 U.S. , , (110 &.Ct.

3092, 3102,] (1990); see also Pulley v.

Harris, 465 U.S. 37, 41 (1984)." Estelle

v. McGuire, 112 S.Ct. 475, 4890 (1991).

Stripped of it verbiage, the Court of

Appeals decision does just that: correct

alleged errors in state court procedure of

nonconstitutional dimension.

This Court should grant review and

enunciate the proper role, if any, of

federal courts where state prisoners seek

habeas corpus relief based upon post-con-

viction delay.

26

ONCLUSION

For the foregoing reasons, amici urge

this Court to grant the petition for writ

of certiorari.

Respectfully submitted,

Mike Moore

Attorney General

Marvin L. White, Jr.

Assistant Attorney General

27