546 F. App'x 17
2d Cir.2013Background
- New York State prisoner Jesse Roberites appeals a sua sponte habeas dismissal under 28 U.S.C. §2254 for failure to exhaust direct state review.
- He challenges his state convictions for arson and insurance fraud and claims ineffective assistance of appellate counsel.
- The district court dismissed for lack of exhaustion under Rule 4 of the Rules Governing §2254 Cases; appellate review is de novo.
- A COA was granted on two issues: whether appellate delay excuses exhaustion and whether delay violates due process.
- There was a 32-month gap between the timely June 10, 2009 appeal filing and the February 27, 2012 §2254 petition, during which the appeal was not perfected and counsel actions were at issue.
- On remand, the court affirmed the district court’s exhaustion ruling but reversed and remanded on the due process claim, ordering a conditional writ and scheduling state action by mid-2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate delay excuses exhaustion under §2254 | Roberites argues substantial state delay renders the corrective process ineffective | Colly contends exhaustion should not be excused; state appeals must proceed | Exhaustion excused due to significant delay and ongoing progress in state review |
| Whether there is a due process violation from undue appellate delay | Roberites asserts due process requires timely adjudication of appeal | Colly argues no due process violation due to pending state review | Conditional writ issued; release unless appeal decided by June 30, 2014 |
Key Cases Cited
- Dean v. Smith, 753 F.2d 239 (2d Cir. 1985) (exhaustion and state-court remedies considerations in habeas)
- Barker v. Wingo, 407 U.S. 514 (U.S. 1972) (speedy-trial factors applied to appellate delay)
- Simmons v. Reynolds, 898 F.2d 865 (2d Cir. 1990) (exhaustion delay can be excused where state delay is excessive)
- Brooks v. Jones, 875 F.2d 30 (2d Cir. 1989) (comity and delay considerations in habeas petitions)
- Castille v. Peoples, 489 U.S. 346 (U.S. 1989) (comity and state-court role in federal-review of rights)
- Elcock v. Henderson, 947 F.2d 1004 (2d Cir. 1991) (due process requires timely disposition of an appeal after right to appeal)
- Mathis v. Hood, 851 F.2d 612 (2d Cir. 1988) (treats coram nobis and related remedies in context of delays)
- Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004) (application to procedural delays in prisoner suits)