*1 government employed Robidoux before thus, charged;

Holmes was no sixth amend SIMMONS, Appellant, Lawrence L. During ment violation occurred. the investi gation target, of an unindicted sixth amend rights attach until

ment do not “the time that BEYER; Attorney Howard L. and The adversary judicial proceedings have been ini Jersey, General of the State of New Illinois, against Kirby tiated him.” CaryW. Edwards. 682, 688, 32 L.Ed.2d No. 92-5370. (1972); see also In re Jury Grand Sub Doe, poena Upon Served United States Appeals, Court of (2d denied, Cir.), cert. Third Circuit. (1986). Because charges there pending against were no Argued Oct. 1993. government Holmes when the used Robi- doux, Decided Jan. 1995. proceedings adversarial had not him, against been initiated there was no in Rehearing Sur Petition for terference with Holmes’s to counsel. Feb. Thus, Holmes’s reliance on Moulton is mis placed.

Moreover, although Agent Mazzella knew

that counsel for the union had moved to

quash records, subpoenas for its there is

nothing in the record to show that Holmes Frasca, individually, represented were

by counsel at time of the conversations.

Mazzella, himself, any knowledge denied represented by defendants were then

counsel, required and he was presume attorneys

that the same represented

union, party being whose funds were taken,

unlawfully were also representing Frasca, very people

Holmes and suspect- taking

ed of those funds. sum, challenges defendants’ to the re-

cordings of the Robidoux conversations also

fail.

CONCLUSION

We affirm the conviction and sentence as

to defendant Frasca. As to defendant

Holmes, we affirm on all except counts Count

Five which we reverse. We remand the

sentence to the district court with instruc-

tions to vacating determine whether the con-

viction on Count Five any should have effect

on the overall sentence. *3 Passaic, NJ, (argued), Saykanic

John V. appellant. for Fava, County Prosecu- Ronald Passaic S. tor, Hendry (argued), Office of Jane E. Paterson, Prosecutor, NJ, appel- County lees. *4 HUTCHINSON, and COWEN

Before: NYGAARD, Judges. Circuit COURT OF THE OPINION NYGAARD, Judge. Circuit re- L. Lawrence Simmons’ granted We and probable a cause quest for certificate (1) voir tran- whether dire must decide: now delay 13-year be- missing after a scripts, ap- sentencing and direct Simmons’ tween claim review his indispensable to peal, are its improperly prosecution exercised that challenges exclude African peremptory (2) jury, and whether Americans from constitutional Simmons’ violated this speedy appeal.1 process and right to due reopened denied Simmons’ court The district corpus. will of habeas We petition for writ because, court although the district reverse right that correctly Simmons’ concluded violated, by conclud- it erred due was cured when Sim- was ing the violation his direct mons received I. life sentenced Although years. plus 21 to 25

imprisonment expressed sentencing he immediately after never waived appeal, and his desire to sen- conviction and appeal, Simmons’ years. His reviewed for tence were not not file notice counsel did appointed trial case Simmons’ promptly or transfer appeal Jersey of the New division appellate to the instructions, during errors other rors in the trial, additionally based asserts claims 1. Simmons to examine motions denial of his and Fifth alleged his Miranda violations of We have reviewed jurors for a new trial. inability the effect rights, to review Amendment they are misconduct, without and conclude these claims governmental publicity, pre-trial evidence, merit. er- weight against the verdicts Thereafter, Public despite Defender. potential re- petit jurors elude based on or race quests counsel, from Simmons and his trial race-based assumptions. 476 U.S. at Public Defender failed to promptly seek S.Ct. at 1719. Similarly, Gilmore, appeal. Ultimately, the federal Jersey district New Supreme Court held that granted court Simmons a conditional writ of prohibits state constitution prosecution’s corpus, directing that a writ would of peremptory use challenges “to po- remove gave issue unless the state him an appeal or petit jurors tential who are members of a Thus, a new trial. after pursued he had cognizable group on the basis of pre- their collateral review the state and federal group sumed bias.” A.2d at 1154. Be- courts from 1980 to Jersey New fore analyzing merits per- Court, Superior Appellate finally Division emptory challenge claim, we must resolve permitted Simmons to file a (1) notice of preliminary two issues: whether Batson pro nunc tunc. After spending more than a apply case, Gilmore to this prison, decade granted Simmons was his whether Simmons’ claim is barred under first right. as of “adequate independent ground” state doctrine.2 time,

By however, portions this of the trial including record a lengthy in camera voir A. prospective jurors dire of missing. were *5 In Hardy, 255, Allen v. Appellate Division 478 remanded the U.S. case for 106 the S.Ct. 2878, (1986) 92 purpose limited L.Ed.2d reconstructing record, (per curiam), of 199 the the Court judges the concluded presided and who had that Batson does not apply over the retroactively on selection and the collateral of review remainder the of a final trial 258, sentencing conviction. Id. at and held 106 reconstruction S.Ct. at hearings. In 2879. Griffith, v. challenged Kentucky, 314, Simmons the 479 sufficiency U.S. 107 708, 93 (1987), reconstructed L.Ed.2d court, however, record in 649 federal district the but Court his held that apply motion was denied Batson does litiga without “to tion right pending challenge his direct state or federal record in review yet or not appellate final proceedings. 1990, state when In Batson was decided.” 316, 107 Id. at Appellate Division S.Ct. at 709. It affirmed Simmons’ convic- reasoned that sentence, integrity judicial of tion and Jersey requires and the New review Su- con preme application sistent of petition Court denied his “our best understanding for certifica- 1991, governing In principles,” tion. the United constitutional Supreme States id. at 323, 107 S.Ct. at petition (quoting Court denied Simmons’ 713 Mackey for a writ v. States, 667, United 679, certiorari. The district 401 U.S. court then 91 denied his 1160, 1173, petition (1971)), reopened for corpus, writ and fair ness requires appeals. allegiance and he now to “the principle of treating similarly situated defendants ' same.” Id. II. Simmons contends that Here, manner Simmons’ 1977 conviction did which prosecutor perempto- exercised his not become final until 1991 when the United ry challenges violated the federal and Supreme state States petition Court denied his for law principles articulated Batson v. Ken- Allen, a writ of certiorari. See 478 U.S. at 79, tucky, 106 S.Ct. 90 (citation 258 n. at 2880 n. (1986), Gilmore, L.Ed.2d 69 omitted). State Although this case was before the (1986). N.J. Batson, A.2d 1150 Supreme conjunction Court in with Supreme United States Court held that get efforts appeal, direct it did Equal Protection Clause the Four- not then become final in the relevant sense. teenth prosecution Amendment forbids the Simmons’ first appeal as of was the exercising peremptory from challenges to ex- missing critical step, and his intervening ap- parties dispute claim, The do not and our review in the state Lundy, courts. See Rose v. reveals properly 518-20, exhausted 1203-04, 102 S.Ct. claim, peremptory challenge speedy appeal (1982). L.Ed.2d 379 plications since Simmons' direct applications followed his for collateral review did not render Caspari Bohlen, review, his convictionfinal. See for collateral it was not -, -, legitimately appeal" purposes ap - U.S. "on (1994). Accordingly, plying retroactively, (2) L.Ed.2d 236 the Batson Gilmore the Gilmore sufficiently "preserved decision, 1986, applies issue was not in the announced in to this court," case. the reconstructed record "adequate issue," was not to raise the irony egregious delay is that the resulting prejudice appropriately as granting Simmons a direct inadver- signed to Simmons. tently gave him the benefit of the Batson timely decision. Had Simmons received a Although specific rationale was not review, his convictionwould have been final plainly stated, Appellate clearly Division sense, before 1986. In a he is a "chance rendered a decision based on state law beneficiary" Griffith, of the Batson rule. See grounds which was later affirmed Simmons, 479 U.S. at 107 S.Ct. at 713. supreme state court. Simmons had also however, similariy was not situated with oth- appeal, raised a Batson claim in his direct er defendants convicted in 1977 whose con- stating in his brief that "the rule of Batson is victions became final before Batson was de- applicable bar," Appel to the' case at but the cided. Those other defendants did not suffer late Division did not address the Batson is 13-year delay getting appellate before re- solely authority sue. It relied on state law view, and we see no reason to bend the rule reject and based its decision to Simmons' deny in Griffith to Simmonsthe constitution- peremptory challenge claim on Gilmore. protection al afforded in Batson. principle "[lit is a well-established of federal resting ism that a state decision on an ade B. quate foundation of state substantive law is The Gilmore court itself delineated courts," immune from review in the federal *6 holding's application: Wainwright Sykes, 72, 81, its rule of 433 U.S. apply defendant, 2497,2503, (1977)(cita [T]he new rule will to this omitted), jurisdiction trials in which the selection com- tions and we lack to Appel- Appellate menced on or after the date of the overrule the Division's conclusion opinion apply retroactively [which late Division was affirmed that Gilmore does not to Corp. in Gilmore and cases now on in Simmons' case. See Fox Film v. Mul preserved ler, 183, 184, which the issue was in the trial 296 U.S. adequate (1935)("where judgment court and the record is to raise L.Ed. 158 of a the issue. upon grounds, state court rests two one of which is federal and the other nonfederal in Applying 511 A.2d at 1169. these instruc character, jurisdiction tions, Appellate rejected our fails if the nonfed- Division Sim ground independent mons' contention that the reconstructed trial eral ground is of the federal adequate support judg permit record was insufficient to it to review ment"). his Gilmore claim. It held that Simmons' argument necessity "must of fail because we attempting consider this to be application a retroactive C. procedural of Gilmore under the history Next, Appel and circumstances of this case."3 we consider whether the Appellate opinionyields late Division'sdismissal of Simmons' Gilmore Division's three potential justifications (1) claim bars consideration of his Batson claim for this conclusion: Appellate passing prejudice petitioner'sright 3. The Divisionnoted in denied"without objections appellateproceed- Simmonshad ifiedno to the recon- raisetheseissuesin the state structedrecord in the state trial court. Before the reconstruction ings any corpus and in future federal habeas hearings,however, petitionfollowing the district exhaustionof stateremedies." expresslygranted permission presume procedural court seekits to We will not default or ruling adequacyquestion. on the Sim- apparently waiverbecauseSimmons the districtcourt's assurances. relied on mons, fact, challenged sufficiency of the court, recordin the district but his motionwas “adequate under independent state on the merits of that claim reached in the ground” Although doctrine. Simmons raised state proceedings. reopened Batson claim in his petition for a Sykes, 433 U.S. at 97 S.Ct. at 2506-07. corpus, writ of habeas district court If Appellate Division explicit had analyzed Appellate Division’s dismissal ly addressed and dismissed Simmons’ Batson Arvonio, under Gilmore. Simmons v. 796 claim analysis based on law, its of federal (D.N.J.1992). F.Supp. The district then this claim clearly would subject be court concluded that this dismissal was not federal habeas example, review. For if it reviewable it because was based on substan- had dismissed both the Gilmore Batson tive state disposed law and per- of Simmons’ claims on state and federal retroactivity emptory challenge (citing claim. Id. Sykes, grounds, judgment then its regarding the 2503). 97 S.Ct. at For the application retroactive of Batson would be reasons, following we conclude that the dis- subject to review. Conversely, Appel if the trict court erred. late Division had ruled that Simmons waived

his Batson claim procedural based on state law, Thompson, Coleman v. then judgment would be immune But, from federal (1991), 115 L.Ed.2d review. dismissing a state constitutional Court reiterated that it claim on state grounds “will not law review a preclude does question federal of federal habeas review of law decided a state parallel federal court constitutional claim. if the decision of that court rests on a ground state law independent III. question federal adequate support judgment.” Id. at 111 S.Ct. at 2553-54. A. Here, Appellate judgment Division’s The first issue is whether Simmons’ Simmons’ state Gilmore claim clearly preserved Batson claim is for review. Dur “independent” of his federal Batson claim. ing the hearings, reconstruction The court cited no federal case law and did trial counsel testified as follows: not refer to the Fourteenth Amendment or Q: you Do making recall a motion for Batson in concluding decision that Gilmore mistrial on the basis that the State did retroactively not apply to Simmons’ case. was improperly excluding blacks on Moreover, the Gilmore court explicitly based the basis of race? *7 its decision “on Jersey Constitution, the New Again, A: I say cannot certainty with that protects which rights indepen fundamental I made a such motion. don’t I have dently of the United States Constitution.” an independent recollection of it. I 511 A.2d Appellate at 1157.4 The Division’s probably given would have the flavor Gilmore, however, decision under was not and case, the context of cetera, this et “adequate” support judgment. The that I would have made a such motion. unavailability of a state constitutional claim is Athough, I say cannot I —I that can’t not dispositive availability as to the or merits say, categorically, that I proba- did. I of an analogous federal constitutional claim: did, bly say but I can’t that. [T]he federal petitioner who claims response question to a timing about the of he is pursuant detained judgment final motion, the he that: stated “I don’t have an of a court in state violation of the United recollection, independent but I think would States Constitution is entitled to have the that definitely I made it jury before the was federal habeas court make its own inde- sworn. I would not make it after the fact.” pendent of determination this federal claim Finally, counsel attested that: “At that time being

without bound the determination I making motion, was the not in every case, 4. Although protections the afforded ing protection under Bat- dual of New Jersey and federal son and overlapping, Gilmore are the constitutions); two cases Bey, State 129 N.J. rest on Pemberthy different foundations. See (1992) (same). A.2d Beyer, (3d Cir.1994) (recogniz- mem- (1) group number racial the case: systematic a for making motion a I recall but crime, (2) nature of the the panel, the bers cases other in several by the State exclusion n victim, (3) defendant race of the the time.” period during that group against racial (4) of strikes pattern a testimony is not prosecutor’s The assistant (5) questions members, prosecution’s as follows: contrary. testified He to the Id. at voir dire. during the statements making a the defense recall Q: you Do charging that the for a mistrial motion ju- hearings, black excluded systematically the reconstruction By time of State trial, defense Simmons’ years after rors? eleven many African how recall af- did not happened, counsel that that I believe A: No. many venire, how in the Americans were Judge Márch- that reviewing notes ter many or how prosecution, by the having re- struck were made, without ese but from a transcript jurors. The notes, no seated as have were I would those viewed jury day after the hearing held occurring. pre-trial that recollection however, selected, defense records had been presid- judge who Although the notes jurors potential that 130 estimate counsel’s dire, Leopizzi, do not Judge voir ed over the Additionally, questioned. had been systemat- on based motion to defense refer a that, in- following an transcripts disclose presid- judge who exclusion, of the the file ic Simmons, defense identification court Judge sentencing, the trial over ed that reflect the record “Let stated: counsel following notation: Márchese, includes defendant, The Simmons. pointed to the he charging State mistrial motion for “Defense except for courtroom in the male black from excluding blacks systematically with 2.” Jones, number Juror Mr. court clerk’s The Leopizzi denied.” jury. counsel 'made defense indicate that records similarly did prosecutor The assistant mistrial before for a several motions in the people number of total remember specify sworn, they do not although was composition. He testified venire, itsor racial on this Based motions. for these grounds hearings that reconstruction during the Bat- record, are satisfied we Afri- many as 20 been” as “there could have preserved claim was son think Americans, he did not but can many as 40. been” would have “there B. juror number récalled prosecutor assistant claim that a Having being asserted jury, as two, foreperson challenges peremptory man, “quite based its prosecution he American African of estab race, the burden had African Ameri- were other that there sure” analysis A Batson case. lishing prima facie two. number juror besides venirepersons can (1) the defendant steps: in three chal- proceeds many peremptory how not know He did showing of viola facie prima must make Americans African to strike he used lenges succeeds, prose tion, defendant if the records court clerk’s jury. The from *8 explana a race-neutral per- articulate must cution all of their used both sides that reflect then deter court must tion, the trial jurors in the challenges: “Fourteen emptory proven pur has the defendant mine whether been exhausted.” challenges have all box and v. States See United poseful discrimination. American African Cir.1993) (3d 388, Uwaezhoke, 392 995 F.2d group. racial cognizable of a York, thus a member 500 New U.S. v. Hernandez (quoting “charging mistrial for a his motion 1865-66, on 1859, 114 Based 358-59, 352, 111 S.Ct. excluding — systematically with denied, State (1991)), [the] U.S. cert. 395 L.Ed.2d that conclude jury,” we (1994). [the] from 214 blacks 920, 127 L.Ed.2d -, 114 Afri potential one at least struck Clemons, prosecution 741 F.2d 843 States In United Clemons, F.2d 843 juror. See 835, 109 can American denied, (3d Cir.), 488 U.S. cert. juror constitute single could (striking (1988), at 747 we elaborated 97, 102 L.Ed.2d num case). juror that The fact facie prima listing analysis, five a Batson step of first disposi- is not American African ber two prima facie are relevant factors that (“mere tive. id. presence single of a review as given appellants with funds.” jury black on the necessarily would not pre- 193-94, Id. at 92 S.Ct. at 414 (quoting Draper case”). vent finding prima of a facie It v. Washington, 487, 496, 372 U.S. 83 S.Ct. appears that between 20 and 40 Afri- (1963)). other 9 L.Ed.2d 899 “In terms of may can Americans venire, record, have been in the a trial this means that the State must although defense counsel and the indigent assistant afford the a record of sufficient com prosecutor were unable to recall with pleteness certain- permit proper consideration of ty. or [his 194, her] claims.” Id. at 92 S.Ct. at (internal quotations omitted). Although The nature of the crime and its racial a full verbatim transcript is not automatically configuration robbery murder of an —the required, the Mayer Court concluded that an elderly physician by Caucasian young Afri- “appellant cannot be denied a ‘record suffi can American man —contribute significantly cient completeness’ permit proper consid , prima Simmons’ facie case. See Jones v. eration of his claims.” Id. at 92 S.Ct. at (3d Ryan, Cir.1993) (con- 987 F.2d 416; see Petsock, also Karabin v. sidering charge, substantive “robbery of an (3d Cir.) (holding that defendant elderly by man,” white man a black in ana- must show “colorable need” complete for lyzing case). prima defendant’s facie Pre- transcript), denied, cert. sumably recognizing potential (1985). 88 L.Ed.2d 135 racially would become charged, judge specifically questioned “jurors about problem here is self-evident. No one the fact that the victim in this case was many recalls how potential African American white, black, [and] defendant was jurors [ at- ] were peremptorily challenged, and the tempting jurors to ascertain whether would prosecutor assistant does not remember and any difficulty have with this.” See id. at also has no notes indicating why he struck indi- (noting n. 5 that the trial court had asked vidual venirepersons. parties Both agree respective venire whether the race of the that further reconstruction hearings would alleged defendant and victim would affect be fruitless. Simmons’ Batson simply claim judgment). their cannot be reviewed without a transcript of the voir dire to allow reviewing court to Although we cannot evaluate the last two examine whom the prosecutor assistant ex- Clemons factors transcripts because why. cluded and We do not and cannot available, voir dire not are we conclude that know whether Simmons’ pro- 'selection prima Simmons has established facie case cess was by infected racial discrimination. of a Batson violation. The combination race, prosecution’s Simmons’ exclusion Nevertheless, Simmons raised a col potential least one African juror, American orable claim that prosecution systemat and the surrounding circumstances crime ically excluded African Americans from the are to meet prima sufficient facie jury, stemming from our Thus, burden. our prose- focus shifts to the inability to review this claim fairly is not cution ability its to come forward with borne him.5 The seriousness of this claim explanations race-neutral peremptory potential and its merit demand some form of challenges. habeas relief. explained by As the Batson Court, “[t]he guarantee core equal protec C. tion, ensuring citizens that their State will In Mayer City Chicago, race, discriminate on account of would be (1971), meaningless were approve we to the exclu *9 Supreme Court reiterated that “[i]n jurors all cases sion of on the basis of assump such duty of the provide State is to tions, the indi- which solely arise jurors’ from the gent adequate and effective an appellate race.” 97-98, 476 U.S. at 106 S.Ct. at 1723. 5. opinion The granting court district Simmons a preserve to necessary preparing materials for corpus writ of conditional details defense transcripts. See Beyer, Simmons v. F.Supp. 689 counsel's actions and respect non-actions with to 432, (D.N.J.1988). 448-49 obtaining transcripts trial and the state's failure

1169 I), held that the Due Process injustice {Burkett Simmons we grinding a would be It reasonably speedy ap prosecutor “guarantees a hand of a Clause at the he to suffer were through give peal discrimination if the has chosen to defen racial state practiced who challenges and then peremptory [appeal].” Id. at right the use 1221. dants delay his ac- that shielded contributed appeals have Numerous courts also other harm ex- potential The review. tions from acknowledged process right a due ju- beyond Simmons excluded tends I, speedy appeal.6 applied In Burkett we procedures purposefully that rors: “Selection Wingo, in Barker v. 407 criteria articulated juries undermine persons from black exclude 514, 2182, 101 92 S.Ct. 33 L.Ed.2d U.S. sys- of our fairness confidence public (1972), delay appellate to determine whether 87, at 1718. justice.” Id. at 106 S.Ct. tem of 1222; at process. violated 826 F.2d had due Tucker, Harris, 1559; at 8 accord 15 F.3d IV. 381-82; 676; Johnson, at at 732 F.2d F.3d 13-year Rheuark, Barker, contends at 303. 628 F.2d process right to delay violated his due also Supreme identified four factors Court bal providing another basis speedy appeal, and a examining alleged speedy ance when an axiomatic once relief. It is for habeas “Length delay, the reason for violation: “the right granted, been as of has appeal an delay, assertion of his the defendant’s deciding appeals must procedures used prejudice to the defendant.” 407 right, and Due Pro of the comport with the demands 530, Although at 2192. U.S. at S.Ct. 92 Equal Clauses Protection cess trial and before interests at stake before 387, Lucey, 469 Emits v. U.S. Constitution.” differ, sufficiently obviously they are appeal 884, 830, 821 393, 83 L.Ed.2d 105 S.Ct. general ap to warrant the same similar (1985). is-that touchstone The constitutional Arizona, 25, 414 proach. Moore v. U.S. See must furnish the appellate procedure (1973) 27, L.Ed.2d 183 94 38 necessary meaningful review. components (Barker may carry weight factors “different 353, See, California, 372 U.S. e.g., Douglas v. incarcerated after where a con defendant (1963) 817, 358, 814, 811 9 L.Ed.2d 83 (“Barker viction”); at 719 Cody, 936 F.2d appeal); v. on direct (right to counsel Griffin uncritically” in applied factors not be should 19-20, 585, Illinois, 12, 76 S.Ct. 351 U.S. context). speedy 590-91, to tran (right 100 L.Ed. 891 guar appeal). direct Due script on 13-year delay in this case is an The out- “adequate and appeal that is both antees right appeal as of rage, and that Simmons’ 392-94, Evitts, at 105 469 U.S. effective.” through cracks” is “slipped shameful. Jersey provides New at 834-35. Since (five I, at 1225 and one- Burkett 826 F.2d 6, Art. right, appeal as of N.J. Const. for an sentencing year delay in half ¶ 2, 5, the 13- § we must determine whether Harris, discharge); 15 F.3d warranted cf. ap constitutionally impaired the year delay delay ordinarily (two-year appellate 1560 eventually re pellate that Simmons review of inordinate presumption gives rise to ceived. litigation delay). subsequent period of a direct marking efforts to obtain has Although Supreme Court own, on a life of its appeal apparently took defen recognized a criminal explicitly regard for fundamental notions without appeal, Burkett v. speedy dant’s Cir.1987) (3d process. and due fairness 1208 Cunningham, 826 F.2d 881, 369, denied, 1538, 70 See, 102 S.Ct. Champion, cert. e.g., F.3d Harris v. 15 Shaw, Tucker, (10th Cir.1994); (1981); 628 v. 8 v. F.2d United States L.Ed.2d 195 Rheuark 1558 banc), 673, (9th Cir.1993) (en denied, Cir.1980), 297, (5th cert. U.S. 676 cert. 450 F.3d denied, 302 - 1230, -, 1392, (1981); 127 U.S. 114 S.Ct. 67 L.Ed.2d 101 S.Ct. cf. Henderson, (1994); Cody 936 F.2d v. (7th L.Ed.2d 574 Duckworth, Cir. F.3d Allen Johnson, Cir.1991); (2d United States 1993) appeal can (assuming excessive denied, Cir.), (4th cert. 732 F.2d -, denied, -U.S. process), due cert. violate (1984); L.Ed.2d 396 105 S.Ct. (1994). 1106, 127 L.Ed.2d 417 Pratt, (1st Cir.), *10 United States v. 1170 finding retrial,

The district court’s that in defenses case of reversal and delay for the was ineffective assis might be-impaired. the reason by appointed trial counsel and the Pub tance I, Burkett 826 F.2d at 1222 (quoting Rhe , clearly correct. lic Defender is See Sim 8). 628 F.2d at 303 n. uark mons, F.Supp. recognize at 443-44. 689 We Here, disposi the third factor is representation appeal that “nominal on vio tive: Simmons’ claim appeal process party because ‘a lates due whose prosecution systematically excluded African provide repre counsel is unable to effective Americans from longer is no review position in no better than sentation is one able. This is not deprivation a case in which at all.’” who has no counsel Simmons v. timely appeal engendered possi has “the (2d Cir.1990) 865, Reynolds, F.2d 868 898 bility that person’s grounds a convicted for Evitts, 396, at (quoting 105 S.Ct. at appeal, and his or her in defenses case of 836). delay Responsibility for this cannot be might reversal and impaired.” retrial be Id. Simmons, charged against the victim of inef Rheuark, (quoting at 1225 628 F.2d at n. 303 Harris, lawyers. 15 fective See F.3d at 1562 8). prejudice Simmons has suffered actual (delay inability Public caused Defender’s because his Batson claim is unreviewable on timely perfect appeal an should not be the reconstructed United States record. Thurman, Cf. petitioner); attributed to Coe Wilson, (9th Cir.1994) 1027, 16 F.3d 1031 Cir.1990) (9th (“failures 528, 922 F.2d 531 (judicial bias claim unreviewable because of court-appointed delays by counsel and long-delayed woefully inadequate state”). court to the are attributable In con Moreover, transcript). impediment lawyers’ performance, trast to his Simmons ground appeal for is the most serious form of timely requested diligently himself prejudice inability “because the of a defen Simmons, sought appellate review. See 689 adequately dant prepare [or her] case F.Supp. (summarizing at 435-36 state court skews the system.” fairness of the entire actions). findings regarding Simmons’ Barker, at U.S. 92 S.Ct. at 2193. undeniably preju has been I, 13-year delay. by the In Burkett diced we Each Barker factor indicates that adopted a modified version of the three inter 13-year appellate delay violated Sim Barker, ests identified U.S. at right process mons’ speedy due and a being prejudice at relevant to appeal. agree We with the district court speedy Accordingly, in a trial context. we violated, that due disagree but prejudice light following assess in that the Appel violation was cured when the timely promoting appeals: terests in granted late Division him (1) prevention oppressive Simmons, incarceration F.Supp. at 791. If Sim (2)

pending appeal; effective, minimization of anxi- adequate mons had received an ety though and concern of those convicted await- excessively delayed appeal, then the ing appeals; prejudice the outcome of their issue of would become diffic more possibility However, limitation a convicted ult.7 delay in this case “sub person’s grounds appeal, stantially and his or her appel- affeet[ed] the fairness of the (3d affirmed); Ryan, 7. See Heiser v. 15 F.3d 303-04 er’s conviction was Muwwakkil v. Cir.1994) Hoke, (ll)é-year delay hearing (2d Cir.) (13-year motion to 968 F.2d plea guilty prior withdraw not warrant habeas did to direct does not warrant habeas petitioner’s abilily relief where show coercion ultimately relief where conviction was affirmed - denied, -, impaired), was not cert. prejudice), U.S. because there was no actual cert. de Harris, nied, (1994); -, 115 S.Ct. -U.S. 121 L.Ed.2d 113.S.Ct. (once affirmed, Johnson, (1992); (once 15 F.3d at 1566 conviction no 732 F.2d at 382-83 merit, petitioner entitlement to habeas relief "unless the lacking was heard and found itself, appeal, can actual to the ordering show there was no basis for defendant's re Tucker, — lease). arising delay”); States, Doggett from 8 F.3d at 676 But v. United cf. -, -, (despite year delay, three and one half once his 120 L.Ed.2d affirmed, petitioner (1992) ("Thus conviction was received all generally recog we have to Allen, legal process); he was due delay presumptively compro from nize that excessive (despite year delay, reliability ways a four and one half mises the aof trial in that neither or, matter, corpus petition- party prove action became identify."). moot once can for that

H71 violation, speedy typical remedy Cody, F.2d at proceeding,” 936 late process any resulting prejudice violation seeks “to counteract the due conclude we I, by delay compels by petitioner.” some form demonstrated a Burkett caused Thus, recognize habeas relief. 826 F.2d at 1222. we that a “discharge attempting is warranted where an V. preju- remedy alternate would not vitiate the dice of the fundamental unfairness or would Having concluded that Simmons petitioner’s itself violate a constitutional potentially for both his is entitled to relief (citations omitted). rights.” Id. unreviewable, meritorious, Batson claim but claim, consider speedy his we ordinarily “[H]abeas courts have fashioned two viola appropriate. relief is what remedy designed spur a to the state courts to Simmons’ Batson tions are intertwined: fulfilling obligations constitutional their to delay in review because the claim eludes (cita Heiser, the defendant.” 15 F.3d at 306 appeal resulted in the loss or destruc direct omitted). Here, right tions Simmons’ transcripts, voir dire and his tion of the jury by is untainted selection prejudice claim satisfies the speedy racial discrimination is at the core of his delay impaired ap requirement because equal pro Fourteenth Amendment pellate review of his Batson claim. Heis Batson, 97-98, 106 476 at tection. — (3d U.S.-, F.3d 299 Ryan, er v. Accordingly, at 1723. the constitutional in Cir.1994) denied, Stepenik, cert. Heiser tegrity of his current confinement is serious — U.S.-, 313, 130 L.Ed.2d 276 ly question. delay Given the monumental (1994), that: of the most we asserted “One constitutionally in this case and Simmons’ a court troublesome issues that faces federal incarceration, suspect we have considered sitting prisoner’s petition for habe- on a state whether an unconditional release would be corpus appropriate remedy to fash is the difficulty appropriate. Our lies in our inabili proceedings have been ion when the state fact, ty prosecution, in to know whether the and indefensible characterized excessive systematically African excluded Americans delay.” is “to fashion Id. at 300. Our task jury. possible from the If it were to review rectify designed prejudice relief claim, Batson and it were found to Simmons’ Fulcomer, 951 F.2d violation.” Burkett merit, — prejudice be without then the stem denied, (3d Cir.1991), cert. ming a from the alone would be slender U.S.-, support reed on which to his unconditional (1992). Simmons, release. See remedy The usual for a Batson (“Release custody extraordinary is an from grant petition violation is to for habeas remedy, especially delay-of-appeal in a case corpus, opportunity allow the state an but nullify where release would effect state retry petitioner properly select before grounds court unrelated to the conviction Jones, (re jury. 987 F.2d at 975 ed case.”). conclude that the merits of the We manding grant court “to the writ for district remedy prejudice relief best tailored to re without to the Commonwealth a new trial and fair Simmons has suffered is case”); Ryan, trying the Harrison v. process. selection (3d Cir.) “grant (affirming order F.2d ing petitioner’s corpus writ of habeas retry

requiring to either the Commonwealth VI. days petitioner within 90 or release Therefore, judgment of will reverse the we him”), denied, 1003, 111 cert. it and remand the cause for the district court (1990). Although Sim L.Ed.2d 574 petition for a writ of grant claim, hybrid mons has raised a Batson opportunity corpus, give the state protection and equal draws on due which Simmons, peri- retry specify the time inability process concepts and is based on our retry or the state must allegations, we believe od within which to review his Batson remedy apply. For a release him. that the same should *12 HUTCHINSON, Judge, majority, Like I Circuit the am reluctant to hold delay hearing that the in State’s Simmons’s Concurring. itself, appeal, in and of establishes sufficient case, I the Court In this difficult believe conclude, prejudice permitting to us as a correctly Kentucky, v. 476 applies Batson law, general process matter of that his due 1712, (1986), 79, 106 90 L.Ed.2d 69 right appeal speedy to a has been violated. conviction, pre-Batson to even Simmons’s Court, Opinion My See of at 1170-71. deci- though it in a at Simmons raises collateral sion, thus, only upon rests not the determina- Compare tack on his state conviction. Allen Batson, apply tion that this court should but 255, 2878, Hardy, factors; v. 478 U.S. namely, also on two other critical (1986) curiam) (courts (per delay granting State’s inordinate L.Ed.2d 199 Sim- right partial mons’s and of retroactively loss apply should not new criminal transcripts.2 certain voir dire It is the con- procedure on collateral review of convic rule current existence of these three factors in- becoming tions final before the new rule is cluding Jersey’s the sad failure of New oth- announced) Lane, Teague v. 489 U.S. judicial generally system erwise efficient to (1989) 1060, 109 S.Ct. 103 L.Ed.2d 334 provide reasonably prompt Simmons with a (same) Kentucky, with 479 U.S. Griffith adequate appeal of his 1977 murder con- 93 L.Ed.2d 649 grant remedy viction allows us to (courts retroactively apply should a new rule a new trial. procedure pending criminal to those cases yet on direct review or not final when the The first factor is the State’s excessive announced). I, therefore, new rule is concur delay, nearly years, granting fourteen in the result. right Simmons’s As we held in Burkett, delay 826 F.2d at a state’s agree majority I that this with the case is affording person a appeal, convicted a direct made more difficult because the reconstruct- right, may as of general violate his Four- fully inadequate ed record is to review right teenth process, Amendment to due as particular difficulty Batson This im- issue.1 opposed specific to the more Sixth Amend- plies application that Batson’s retroactive to speedy right ment trial available to state important grant to the Simmons’s ease of prisoners incorporation under the doctrine. remedy, agree trial which we all new Burkett, partially Id. at 1219. In we analo- precise Simmons should be afforded. The gized right speedy a with the retroactivity problem presents, this case trial, speedy speedy but modified however, directly been has never before us appeal analysis emphasize importance Supreme separately or the Court. I write finding prejudice. of a preju- Instead of important unique because this retroactiv- being merely key dice factor or the “most ity analysis. Hakeem, important factor,” issue warrants an see 990 F.2d at least, concluding applies, very any After that Batson the ma- 2. At the this rationale avoids need jority recognizes problem; then a "self-evident” finding to remand this case further fact on i.e., it cannot decide Batson issue because prejudice Beyer, issue. See Hakeem v. many potential [n]o one recalls how African (3d Cir.1993) (remand F.2d for further jurors peremptorily challenged, American were finding delay relating speedy fact on cause of prosecutor and the assistant does not remem- issue); Cunningham, Burkett v. indicating why ber and has no notes he struck (3d Cir.1987) (remand on one of venirepersons. parties agree individual Both three convictions to make a determination con- hearings that further reconstruction would be cerning prejudice). Any delay further in this simply fruitless. Simmons’ Batson claim can- Hence, majority, case is undesirable. like the transcript not be reviewed without a of the voir simplifying prejudice by avoiding favor issue reviewing dire to allow the court examine solely reliance Simmons has suf- prosecutor whom the assistant excluded and ("If Majority Op. fered. See at 1170 why. We do not and cannot know whether effective, adequate though had received an process selection was infected excessively delayed appeal, prej- then the issue of racial discrimination. Simmons, indeed, Majority Op. difficult.”). at 1168. udice would become more Appellant concedes as much. See Brief for Brief at 26. applies retroactively if generally prejudice Batson “prejudice is stated that we majority case.3 The relies bn a due Simmons’s necessary ... element of Burkett, part transcript loss of this of the trial (quoting the 826 F.2d at 1221 claim.” Lovasco, 783, 790, holding ease involves this United States too, I, weighs law. believe this fact 2044, 2048-49, matter of heavily. permits easily It us to conclude that (1977)). “prejudice” factor adapting *13 inadequate reconstructed record is the delays, we then judgment appellate of to the adequate an and afford Simmons effective protected three interests are delineated Thus, Majority Op. at See 1168. the by prompt appeals: majority states: “we cannot evaluate the last (1) oppressive incarceration prevention of transcripts two Clemons factors because of (2) minimization of anxi- pending appeal; Majority the voir dire are not available....” await- ety concern of those convicted Clemons, 1168; Op. at see United States v. appeals; and ing the outcome of their (3d denied, Cir.), cert. 488 U.S. possibility that a convicted limitation of the (1988).4 109 S.Ct. appeal, and his or her person’s grounds for Thus, noted, it is clear that Batson’s retrial, in case of reversal defenses application to this at- retroactive collateral might impaired. be pre-Batson tack on conviction is Simmons’s 1222. Id. at requiring mandate New Jer- essential our observations, we nev- Having made these sey grant a new trial within a Simmons on-going, that an refused to hold ertheless time, reasonable to be determined years at five of least combined court, him. I turn now to district or release sentencing pro- Burkett and three months retroactivity analysis issue. of prejudice as a cessing appeal established his Griffith, Supreme of the In the text three convic- law as to one of his matter of holding Batson to be Court’s states that Instead, at 1227. we remanded tions. Id. “pending applied to all cases on direct review fact to the district court for Burkett’s case yet final” at time Batson was or not prejudice thereafter finding as to Griffith, 479 at decided. U.S. any, degree prejudice, of if balancing the Additionally, the court stat- at 716. Griffith factors to determine the other Barker with a case in which a “mean[s] ed that “final” appeal speedy whether Burkett’s rendered, judgment has been of conviction Id.; Wingo, violated. see Barker v. had been exhausted, availability appeal 2182, 2192, elapsed petition for a for certiorari or time (1972) (enunciating four factors L.Ed.2d 101 finally denied.” Id. at petition for certiorari speedy analysis). to consider (emphasis n. at 712 n. 6 107 S.Ct. added) (citations omitted). Allen, Accord critical factor in this case con- The second (citation 2880 n. 1 transcript relating to the U.S. at 258 n. cerns the loss of the omitted). delay in jurors Because of the inordinate before he re- voir dire Simmons’s upon that is attendant pro nunc tunc as a Simmons’s ceived his direct case, yet he had not petition. This circumstances of this of his federal habeas result “availability appeal” transcript when partial is material on “exhausted” loss issue, majority inability Interestingly, concludes that 4. then It is the to review the Batson itself, is sufficient to show a that is material to our the reconstructed record a violation of Batson Majority Op. finding prejudice prima claim. See at in this case. Simmons also Batson facie majority concluding, argues 1168. In so I believe that the loss of the voir dire and other argument. ability goes beyond As I read his transcript parts affected Simmons’s establish brief, prima vicinage argues consti- he he cannot make that his trial in the Patterson was facie showing tutionally entitling on the reconstruct- unfair him to have his mo- of a Batson violation granted. Appellant change See at 26. Wheth- tions for a venue or venire I ed record. Brief and, argument analyze the basis of er we Simmons's case on believe this lacks merit like or, does, majority any majority, as the it is am unable to discern other issue this concession deficiency record with re- has raised for which the reconstructed in the reconstructed transcript inadequate. Majority Op. spect that establishes at 1160 to the voir dire record is irremediable to Simmons. n. 1. fact, or, least, ap- decided. his direct his conviction at Batson was no more than 30 Batson, place And, peal, days which took after was not consequent thereafter.6 with the nearly years until fourteen after he decided appellate process likelihood that would n tunc, convicted, pro albeit nunc as a Batson, completed long have been before of the district court’s earlier order result Simmons’s conviction would have become proceeding. this habeas unassailable.7 however, argued, It can at least be fairly I do not believe it can be said that application of test to Sim- literal Griffith’s Brown, Simmons, unlike or will suf- Griffith case is tension with one of the mons’s any inequity” from if fer “actual Batson’s similarly is not rationales. Simmons Griffith retroactively applied new rule is not to his (the Batson, Griffith, or Brown situated Griffith, 1977 conviction. See at Supreme petitioner whose case Court 327-28, 107 ineq- 715-16. Whatever Rather, Griffith). consolidated with Sim- *14 may press upon persons uities exist other mons, in December 1977 of a brutal convicted by juries who were convicted from which strong overwhelming not evi- murder on but shamefully African Americans were excluded dence, beneficiary” “chance of counsel’s is a and then had those affirmed in convictions timely, appeal him the direct failure to secure decided, timely appeals before Batson was or Jersey grants of New as a that the State perhaps people Jersey may of New who right persons to all convicted of a matter of fail to person understand how a convicted of 327, Griffith, 479 crime.5 See U.S. 107 participation direct in the brutal murder of Brown, Griffith, and Batson S.Ct. at 715. doctor, elderly an who ventured into the in court within three were tried the same night respond streets the middle of the to prose- Id. The months of each other. same emergency, to an is afforded a new trial or presented against case all cutor State’s released. peremptory appears to have used three and deny right challenges to them the to be Indeed, glance might appear at first it that jury, by from which no judged impartial an by legal Simmons has been saved fiction because of race. Id. person was excluded appeal pro of an nunc tunc that is no less a dead, fiction it years because is stated a ancient was tried almost ten before Simmons language.8 Except simply, Put direct review was decided. for his Batson was even inattention, appeal his would have still available Simmons’s case when Batson counsels’ 1978, January days only within 45 of was decided as a of a result federal been filed any satisfactorily ap- gives a convicted criminal defen- defendant in case where it 5. Once a state defendant, time, pears personally, appeal, Amend- that the within to the Fourteenth dant requested requires process to his trial counsel or the Public Defend- ment due clause State behalf.”). means, appeal including file provide adequate er’s Office to an on his an effective counsel, Unfortunately, appreciate the State did not to assistance of 830, appeal need to relax strict time limits on with Lucey, 105 S.Ct. 83 Evitts v. 469 U.S. had, respect to case. If it (1985); Simmons’s this habeas Douglas California, L.Ed.2d 821 372 proceeding might (1963); well have been avoided. U.S. 83 S.Ct. Illinois, Griffin (1956). L.Ed. 891 agree 7. I use the term "unassailable” because I with the Court none of issues Simmons raised, except hybrid process-equal has due 2:4-4(a) Jersey permits appellate Rule New protection claim based on Batson and the State’s days. appeal by extend the time for courts to inability adequate appellate to afford him review 2:4-4(a) (1995) ("The Jersey Compare New R. fashion, timely Majority Op. ain have merit. See court, upon showing good appellate cause at 1160 n. 1. may prejudice, absence of extend the (a) (final by judgment) ... for time fixed R. 2:4-1 exceeding days, only period not but if the particular 8. This fictitious form of time travel petition may merely vestigial notice of or notice of for certifica- reflect the survival of the the time jurisdiction tion was in fact served and filed within common law rule that courts lack to Bar, extended.”) fails, however, Appellate untimely appeal. -withNotice to hear an It (1977) ("The Supreme disguise Court has N.J.L.J. 1208 the fact that Simmons's conviction had Batson, every appearance finality long Appellate to relax Rule 2:4— directed the Division before 4(a) allowing subject out-of-time but is now to review virtue of this in favor of proceeding. pro indigent nunc behalf criminal collateral tunc on of an States, court United review of his state court’s collateral (1969) (Harlan, J., every appear- dissenting). had L.Ed.2d 248 which otherwise conviction finality. ance of application any of new rules to case pending oh direct review when the rule is addition, application literal of the Grif- announced, including appeals pro nunc tunc ten- holding to Simmons’s case creates fith resulting from a collateral attack on a convic- espoused a Griffith, sion between which tion, represent seems me a reasonable favoring retroactivity in all bright line rule compromise between the unfairness incident or “pending that are on direct review cases application any procedural to retroactive final,” Teague, yet where the Su- proceedings rule to trial concluded before the preme application retroactive Court barred temptation new rule is announced and the Batson, and other cases wherein a new legislative wheeling free that courts confront principle procedure of criminal constitutional they permitted prospectively when are clearly past precedent with breaks Moreover, apply departures new in the law. announced, review.9 cases on collateral application appeals of new law to nunc attack, Here, which but for the collateral pro tunc does not seem to be inconsistent successfully pursued in this federal with the views of Harlan Justice or that of Jersey convic- proceeding, his New Griffith, Justice Powell in his concurrence in certainly “final” tion would have almost been which states: before Batson was decided. *15 hoped It is to be that the Court then will directly the itself did not address Griffith adopt retroactivity the Harlan view of in pro tunc

problem applying Batson to nunc .of seeking petitions. cases relief on habeas result, arguably it is distin- appeals. As a view, petitions general- Under that from case. guishable on its facts Simmons’s ly judged according should be to the con- Allen, Indeed, Griffith, Teague are all existing stitutional standards at the time of factually distinguishable from Simmons’s conviction. Nevertheless, I should case. think Griffith 328, Griffith, 479 at 716 U.S. all involv- applied be to this and other cases (Powell, J., concurring).10 tunc, ing appeals pro not because nunc perhaps It unfortunate that retroactive comports a decision with a literal read- is such holding, application required grant of Batson is to ing of but also because Griffith’s objec- any only via- genesis in Justice Harlan’s Simmons effective relief.11 His Griffith’s claim, which the de- specific approach to retroac- ble constitutional Court tions to the case Walker, hybrid tivity equal protection-due pro- as a adopted in Linkletter v. 381 scribes 618, 1731, claim, 14 L.Ed.2d 601 cess results from a combination U.S. (1965). States, Jersey’s long delay in Mackey problem, New v. United 401 Batson 1160, 667, appeal, to granting 28 L.Ed.2d 404 Simmons his (1971) (Harlan, J., concurring); consequent part of the trial tran- Desist v. loss espoused Teague, Griffith, exceptions which 479 U.S. at 107 S.Ct. at 716-17 9. The two in C.J., (new require application (Rehnquist, dissenting) of a new rule retroactive constitutional (1) "places primary, private 'certain kinds of prosecutions if it governing should rules criminal beyond power of the crim- individual conduct proceedings challenging apply collateral con in ” Teague, law-making authority proscribe,' inal an victions that become final before the rule is (quoting U.S. at 109 S.Ct. at 1075-76 nounced). States, Mackey v. United (1972) (Harlan, doubly because neither Sim- unfortunate 11.It J., (2) “implicate[s] concurring)), funda- any given State had us mons himself nor the mental of the trial” and factual inno- fairness and, retroactivity problem by analysis cence, apply id. at 109 S.Ct. at do not Gilmore, 103 N.J. reliance on State here. (1986) (New Jersey’s Batson ana- A.2d 1150 plainly apply logue), which does not to Sim- In his reference to Justice Harlan’s view on court, case, Court, appellate the state mons's this using retroactivity, may Justice Powell be district court have all been left without interchangeably term "convicted” with the term 682-83, advocacy concerning any ret- real Mackey, the benefit "final.” See 401 U.S. at (Harlan, pro roactivity applies appeals tunc. concurring); as it nunc S.Ct. at J. see also Nevertheless, by pointing I Batson. fies its result out that Simmons script material similarly by “was not situated with other defen- reached the result am satisfied with dants convicted 1977 whose convictions Accordingly, I concur with deci- Court. [be- became final before Batson was decided deny- court’s order vacate the district sion to [tjhose other defendants did not suffer cause] a writ of habeas petition for ing Simmons’s 13-year delay getting appellate before re- instructions condi- remand with corpus and view....” Id. writ, unless the State tionally grant a new trial within a reason- grants difficulty Simmons reasoning The with this is that time, by determined the district 13-year delay to be able is unrelated to the Batson problem, if court. for there had been no there According-

would be no issue under Batson. ly, justification “equalizing” there is no FOR REHEARING PETITION SUR situation with that of other defen- SLOVITER, Judge, Chief Present: by giving convicted in 1977 dants Simmons STAPLETON, MANSMANN, BECKER, all, if Batson claim. After Batson is not SCIRICA, HUTCHINSON, GREENBERG, applied, precise will receive the Simmons NYGAARD, ALITO, ROTH, COWEN, treatment which other defendants convicted SAROKIN, LEWIS, Circuit McKEE Batson, ie., in 1977 have received under no Judges. Here, panel grants relief. Simmons a remedy relationship which bears no to the NYGAARD, Judge. Circuit problem by delay. caused Instead of rehearing by appel- filed petition for granting remedy compensate having case been in the above-entitled lees wrongful delay processing him for the judges participated who to the submitted appeal, grants of his it him a sword all this court and to the other the decision of allowing profit delay. him to from the regu- judges of the circuit available circuit concurrence, Judge ap In his Hutchinson service, judge and no who con- lar active *16 pears acknowledge inequities giving the of having for re- in asked curred the decision right, Simmons a Batson but concludes that majority judges of the circuit hearing, and a applied should be to this and all “Griffith regular in active service not of circuit the tunc, involving pro appeals other cases nunc by rehearing the court in having voted for comports not because such a decision banc, rehearing for is denied. petition the reading holding, with a literal of Griffith’s Judge Judge Greenberg and Alito would genesis in but also because of Jus Griffith’s Judge Greenberg grant rehearing in banc. objections specific tice Harlan’s to the case dissenting from or- opinion the has filed approach retroactivity adopted in Linkletter banc, joined denying rehearing in therein der Walker, 1731, 14 381 U.S. 618 [85 by Judge Alito. (1965).” Op. at 1175. In the 601] L.Ed.2d however, in place, first the situation this case GREENBERG, Judge, dissenting Circuit clearly by Griffith, is not at all covered which rehearing in denying banc. from the order really focused on defendants whose trials and deny respectfully from the order I dissent appeals taking place concurrently were with panel opinion The ing rehearing in banc. Judge recognizes, Batson’s. As Hutchinson points Simmons received a “[h]ad out that “Griffith, Brown and Batson were tried in review, timely his conviction would have be the same court within three months each of 1986,” v. Ken come final before when Batson Thus, Op. other.” at 1174. without a retro tucky, Batson, application active Brown and Grif (1986), Maj. op. decided. L.Ed.2d 69 application fith would have been denied unquestionably is truly 1165. This observation reasons. the new rule fortuitous in 1977. simply true as Simmons was sentenced But did not address a situa Griffith Thus, acknowledges that panel appeal prod the Simmons tion in which the direct was the Batson, beneficiary” proceeding many for with is a “chance uct of a habeas conducted fact, applied delay years out could not have after the conviction. In Sim Batson however, justi- panel, in Id. mons’ this case. The Consequently, delay falls somewhere between without a in appel-

situation Griffith 255, 261, Hardy, process, and Allen v. late the state of the record with (1986), respect L.Ed.2d 199 to the Batson possi- claim could not mattered, bly that rule in Batson should which held “the have as there could not have petitioner^] Therefore, available to on federal not be been a claim under Batson. it is corpus review of his convictions.” impossible delay to conclude that the in the Thus, simply it cannot said that a prejudiced be literal Simmons on the Batson reading compels application panel opinion issue. The prejudice confuses Griffith generally Batson. with vis-a-vis Batson. Indeed, panel opinion reverses actual Moreover, response Judge Hutchin- decision, delay effect of the because under its second rationale lies in son’s the nature of Simmons, prejudicing rather than delay pro pro nunc tunc relief itself. Nunc tunc is Thus, given winning has him a issue. “phrase applied to acts allowed to done be delay appellate process prejudiced done, they the time after when should be state and not Effectively, pan- Simmons. effect, ie., a retroactive with with the same opinion el treats the Batson if issue as regularly done.'” Black’s Law if effect case had been decided in Dictionary, (emphasis 6th ed. at 1069 because it deals with Batson as if Simmons added). Thus, applying even form over sub- could timely have raised that case on a direct stance, given the nature of the relief should put court to force the Simmons the same position he would have been had the State panel explains also “that Simmons is timely not denied him his direct potentially entitled to relief for both his meri- really appeal. So if we are concerned with torious, unreviewable, but Batson claim and relief, giving pro Simmons nunc tunc it is speedy appeal Maj. his op. claim.” at 1171. that, abjuring by axiomatic even case case points It out “two violations are that.the inquiries deciding retroactivity questions, intertwined: Simmons’ Batson claim eludes inapplicable. delay review because the in his Griffith direct resulted in the loss or destruction of voir obvious, then, greatest

It seems that the transcripts, speedy appeal dire and his claim remedy reasonably granted can be prejudice requirement satisfied the because appel- reason of the in the delay impaired appellate review of his late would be to consider this case opin- Batson claim.” concurring Id. respect with to Batson as if his final direct ion, Judge emphasizes Hutchinson the con- appeal had been decided at the outside time *17 points nection between the claims as he out properly prosecuted limit of when a direct receiving that Simmons is relief of “a because appeal from the 1977 conviction could have problem, combination of the Batson New been decided. I am not While certain of that Jersey’s long delay in granting Simmons his date, surely it was before and thus appeal, consequent and the loss of Simmons should no receive Batson relief. part transcript of the trial material to Bat- panel further indicates that “Simmons Op. son.” at 1171. undeniably prejudiced by has been the 13- year delay ... [his] because claim on The net result of these related conclusions prosecution systematically that the receiving excluded is as follows. Simmons is relief jury African longer panel’s acknowledgement Americans from the is no the face of the Maj. Thus, op. reviewable.” at it 1170. does “not and cannot know whether Sim- panel jury by indicates that “Simmons has mons’ suffered selection was infected Maj. actual because his Batson claim is racial op. discrimination.” at 1168. Furthermore, receiving unreviewable on the reconstructed record.” he is that relief even respectfully I foregoing though consequence Id. submit that the its him is to treat more reasoning logic, favorably if defies there had been than other defendants convicted in delay and, delay appeal, no there would have been no Batson absent a he appeals issue because the if direct would have would not have been entitled to relief even actually been concluded before Batson was decided. he could demonstrate discrimination process. And to achieve in the selection outcome, panel relies

this remarkable FREEHOLD COGENERATION prosecution in the ASSOCIATES, L.P., calculus on possibly could not have appeal that Appellant, him under Batson. prejudiced COMMIS- BOARD OF REGULATORY my and write with I words

While measure OF the STATE OF NEW SIONERS restraint, plain in- circumspection and great JERSEY; Jersey Central Power ap- I that I am requires that state tegrity Light Company. Judge of this palled at outcome “perhaps peo- indicates Hutchinson No. 94-5168. may Jersey ... fail to understand ple of New Appeals, Court of United States participation of direct person how a convicted Third Circuit. doctor, elderly murder of in the brutal into the streets the middle Argued who ventured Oct. 1994. emergency, to an night respond Decided 1995. Jan. Op. trial or released.” [is] afforded a new Rehearing Petition for March 1995. Sur statement, as I agree I with that do only myself. it I can add not understand legitimately expresses panel

that while rights constitutional

concern about Simmons’ integrity of his con-

and “the constitutional

finement,” suggests Maj. op.-at it never guilt any question of Simmons’

that there is rejects going it all his contentions

and indeed Maj. op. at 1163 n. I.1 At

to those issues.

bottom, panel orders the release of a imprisonment to life

murderer sentenced subject years,

plus 21 to 25 to the retry can

possibility that somehow the state years murder.

him 18 after the argued

I it be that not- realize that could made, points I have this

withstanding the simply does not merit in banc consider-

case here are unusual.

ation because the facts

Nevertheless, I from the denial of dissent I

rehearing in banc as believe that at a Jersey people

minimum the of New

family are entitled to have this of Dr. Doktor Judge full

ease considered court. *18 joins opinion.

Alito this (D.N.J.1992). F.Supp. 781-86 1. The district court set forth the facts of the case Arvonio, opinion. in its See Simmons v.