Wayne Paul Burkett v. Richard Cunningham, Warden

SLOVITER, Before BECKER and GARTH, Judges. Circuit BECKER, Judge. Circuit corpus appeals by These two habeas Burkett, Wayne arising Paul out of three convictions, require court state us to deter- court, presented mine whether a federal post-conviction delay ranging from ex- monumental, should cessive to exhausted, deem state remedies but also grant corpus on account of writs habeas delay. Each of the convictions took place County, Pennsylvania, in the Blair Pleas, prob- of Common Court where lem of seems endemic. See infra 1227 & n. 48.

In confront a No. we years and four months convic- two between sentencing, plus tion and additional several during months of the state process. encompasses No. 86-3121 two one, separate convictions. we face a year delay three and one-half between con- further, sentencing ongo- and a viction ing delay (approximately year one and nine writing) at this in the commence- months appellate process ment of the state because County of the tardiness of the Blair furnishing opinion system both and in motions transmitting the trial record to the Penn- other, sylvania Superior Court. In the we confront an almost unbelievable situation: sentenced, yet Burkett has to be more than two years five and one-half after trial and a federal district court declared years after trial would if not sentenced be violated he were within days. matter, procedural preliminary As a we in No. 86-3121 the district observe Procedure court used Federal Rule of Civil 60(b) previous and reenter its to vacate judgment, extending in effect order of Schumacher, George E. Joel B. Johnston Burkett, despite appeal, for because time Defender, (argued), Federal Public Pitts- entry diligence, did not learn of the due Pa., burgh, appellant. for peri- expiration after judgment until requesting for an extension of time (argued), od Ellen L. Cohen 4(a)(5). Office, Dist., Attorney’s appeal. Fed.R.App.P. Under Hollidaysburg, case, Pa., appellee. particular circumstances of the power I. the district court had PROCEDURAL HISTORY hold that order. and reenter the final to vacate The factual matrix of appeals these lies procedural history of Burkett’s crimi- important threshold must make We also n history nal cases. That is extremely in- First, the Con- legal does determinations. volved, appeals and resolution of these re- Speedy apply Trial clause stitution’s quires that we set forth in detail. sentencing phase prose- through Second, it does. conclude that cution? We A. State Courts: Round I protect Process clause does the Due February Burkett was arrested on right? delays appeals as of against charged 1981 and in the Blair Court reasons that it does. For the also conclude of Common Pleas with the crimes later follow, the district we will affirm detailed criminal actions Nos. 140 and of exhaustion court’s dismissal want (“140/141”).1 days later, 141 of 1981 Six the court’s No. 86-3074. We will reverse charged he was with the crimes detailed in in No. dismissal for want of exhaustion (“161”).2 criminal action No. 161 of 1981 and, concerning on those claims 22, July prosecution On 1981 the moved Burkett has sen- the case for which been Pennsylvania under Rule of Criminal Pro- hindered, we will tenced but 1100(c) cedure to extend the 180-day dead- of remand for consideration of the merits commencing line for trial otherwise re- claims, including Burkett’s constitutional 1100(a)(2). quired under Rule On October delay itself. That leaves for considera- 7, court, despite objec- 1981 the conviction for which Burkett has tion the dismiss, granted tion and motion to sentenced for five and one- still not been prosecution’s request. verdict, years years two of which half after 140/141, In Burkett was convicted on declaring district court’s order follow the 17, charges3 November 1981 of some and required sentencing the Constitution others;4 acquitted of a mistrial was de- predicated on a days, within 60 order remaining clared on counts when the finding of a trial violation which hung.5 jury On November both challenged by county. The was not sides consented to a continuance in 161. having as law of violation been established 20,1982 January Burkett was convicted On case, by continuing reinforced in 161 on all counts. delay, county having and the conceded at argument only appropriate oral post-verdict Having timely filed motions dismissal, remedy appears trials, to be we will concerning both Burkett was re- the case to the district court with pending sentencing remand on leased on bail Feb- grant 24,1982. 13, days, April instructions to the writ uncondition- ruary After 48 on 1982, charged ally and Burkett from that con- he was rearrested and detailed in criminal action the crimes later viction. threats, recklessly endangering per- another 1. Information Nos. 140 and 141 of 1981 were tic son, charged both filed March 1981. Each Burk- and indecent assault. 17/ burglary, rape, the felonies and invol- ett with of intercourse; untary deviate sexual and with the jury of both 3. The convicted Burkett counts taking misdemeanors of theft unlawful or taking, receiving burglary, by unlawful sto- theft disposition, receiving property, stolen indecent property, and terroristic threats. It also len assault, recklessly endangering person, another corruption of minors. convicted him threats, restraint, unlawful and inde- terroristic addition, exposure. In cent No. 140 of 1981 jury acquitted Burkett of both counts of 4. minors, charged corruption Burkett with a exposure. It also indecent assault and indecent parties misdemeanor. treated involuntary acquitted sexual in- him of deviate case, single and we shall also. 140/141 No. of 1981. The record does tercourse in disposition count in of the latter reveal the not 7, 1981, April 161 of filed 2. Information No. No. 140 1981. 1981, charged rape, Burkett with the felonies of intercourse, ag- involuntary deviate sexual rape, assault; jury hung reck- as to both counts 5. The gravated and with the misdemeanors restraint, lessly endangering, restraint. and unlawful exposure, unlawful indecent terroris- (“284”).6 ruling forthcoming Burkett has been no was on the habeas 284 of 1982 No. arrest. continuously petition, incarcerated since this Burkett filed for relief on similar grounds Pennsylvania Superior in the 19, court August 1982 the ordered On 12, Court on 1984.8 Burkett’s December attorney why cause to show the district 23, January brief in 284 was filed on should not transcripts of Burkett’s trials expense. to him at the court’s furnished Meanwhile, sought Burkett had also subsequent hearing no The record reflects raise the issue of counsel’s ineffectiveness appears the matter. It or order on preserve appeal.9 in order to that issue for transcripts prepared for 161 were proceeding hearing objected He with a that time. on his motions in 284 on Janu- 284, 23,1985, concerning prosecution requested ary his motion because continuances, action, Septem- Rule 1100 in that filed received several ineffectiveness 1, 1984, Burkett beginning on October yet ber had resolved. The timely to dismiss for lack of filed motions hearing adjourned, and an ineffective- beginning on prosecution October hearing April ness was later scheduled granted dismissal and fur- The court denied post- 1985. As of March Burkett's 5 and De- ther continuances on November verdict motions in 161 284 had January 1982 and 1983. On cember argued, briefing and no briefed but January 1983 Burkett was convicted of been scheduled 140/141 because tran- felony all and misdemeanor counts filed, scripts though had been January jury and on yet compel had filed another motion to guilty charged summary him found production transcripts January of those timely post-verdict offense. Burkett filed 14, 1985. motions. 1983, by July At least Burkett was re- B. Federal Round I Courts: questing transcripts of 140/141 and 28, peti On March 1985 Burkett filed a Transcripts App. 284. 183. for 284 were corpus at tion for writ habeas W.D.Pa. completed August in The and filed 1983. 85-769, charging No. that the in Civ. transcripts prepared. other No were sentencing in all of his cases violated his briefing hearing or was scheduled on Burk- rights Speedy under the Trial clause. See post-verdict any in ett’s motions his 154; App. Supp.App. at at 3. We also cases, Pennsylvania and under he could law petition allege pro to construe a due not be sentenced until the court had ruled magistrate granted cess violation. The on those motions.7 pauperis status and ordered an an forma peti- On March Burkett filed a 29, County Blair swer on March 1985. corpus tion for a writ habeas with the answer, timely to which Burkett filed a Pleas, County Blair Court of chal- Common response. filed a lenging custody his in all three on the cases magistrate report and recom- The filed speedy process basis trial and due viola- 15, Finding May mendation on 1985. ex- tions and because he had still not been excused of inordinate de- hearing petition A haustion because sentenced. on this 1984, briefing lay, he discussed whether Burkett had es- held October after which a speedy under the schedule was set for 161 and 284. When tablished a trial violation 1982, 18, ultimately Superior 8. Relief was denied 6. Information No. 284 of filed June 1982, 28, Pennsylva- charged August on 1985 and Burkett with the felonies of bur- Court 24, glary attempted rape; Supreme April nia Court on 1986. with the misdemean- recklessly endangering person, ors of another threats, assault; simple terroristic and with concerning counsel’s ineffectiveness 9. Motions summary offense of harassment. July 11 and December were filed in 2, on 140/141 (never on); July 11 and ruled in 161 on 1984 462, 14, Hill, (never on); August Pa.Super. ruled and in 284 on See Commonwealth v. 7. 6, 1385, (1980); (ultimately July September de- 11 and 422 A.2d Pa.R.Crim.P. 1123 2, 1985). April nied comment. Wingo, Barker v. permitted test of U.S. tution four-part County 60 further 530, 2182, 2191-92, 33 514, days L.Ed.2d S.Ct. date in which to sentence (1972). magistraté, finding App. Burkett.10 154. Blair County did not delay, appeal, re- lengthy repeated noted Burkett’s but Burkett did. We denied Burk- probable to sentenced and attributed no ett a certificate of quests cause to 14, magistrate preju- August him. The found on delay to “without some filing petition had “caused loss dice—that a new in the district court.” see petitioner,” App. at 1223 n. 155. to the infra appear “it be a fun- would 36 —and Courts: State Round II C. constitutionally denial of the as- damental delay ruling trial to sured The Blair court denied Burkett’s post-trial on motions far excess three petition (first state habeas filed March reasoned, Supp.App. years.” 11. He how- convictions) all 1984 as to three on June ever, appear appropriate that “it would Having already denied ineffec- his id. action,” any ap- based withhold 2, 1985,11 April tiveness motion 284 on on an parently order of the Blair proceeded deny the court hearing Common on Court of Pleas that a 8 and motions him on sentence motions in “for post-trial 284 be scheduled June 1985. Burkett received consecu- possible date the earliest consistent totaling years, tive sentences 16 to 32 magis- of this the calendar Court.” according which to the court maxi- was the respect trate therefore recommended with permitted mum under law.12 The court to all of Burkett’s cases that the writ be opinion filed an with the sentencing order. “unless the denied Court of Common Pleas Superior was docketed in dispose post-trial fails to motions Pgh at No. 974 Court impose any appropriate with- sentence 161, post-verdict motions were denied sixty days.” Id. 7,1985. on June Burkett was sentenced on granted parties The district court ten July although or- days filing objections for the September der filed until was not report magis- offender, recommendation of repeat As he received consecu- trate, objections filed and no totalling but were 44 years.13 tive sentences sought. appeal of time The dis- Superior extensions were was docketed in However, adopted magistrate’s report Pgh trict court the Court at No. 1089 85. opinion its opinion and recommendation in full as on motions or sentenc- 30, 1985, filed,14 May declaring ing filing on the Consti- then without which that was 10. The 11. See supra district at 1212 n. court’s order reads: 9. Burkett’s interlocu- by tory appeal quashed the this denial was Wayne petition ordered It is that the Burk- 23, May Superior Court on corpus a writ ett for of habeas dismissed probable that a and certificate of cause is 12. Burkett received 10 to 20 years burglary, for denied, unless the Court of Pleas of Common attempted rape, years 5 to 10 for and 1 to 2 for County post-trial dispose fails to of the recklessly endangering, consecutive to each oth- impose any appropriate motions sentence er; plus totaling The $300 fines costs. sixty days. within merged sentencing purposes. other offenses for It is further that given ordered that in the event the for No credit was time served. fails to Court act in accordance with this 13. years rape, received 8 to 16 for petitioner peti- that directive the a new file intercourse, involuntary 16 for deviate sexual tion, jurisdiction on the merits be as- assault, aggravated to 8 for and 2 to 4 for' by appropriate sumed Court and an threats, other; terroristic all consecutive to each merits determination be made. totalling plus $800 fines and costs. The other language the far from find of this order merged sentencing purposes. offenses for The pellucid. magistrate findings Given the July to commence sentence was court, however, district we read the the 13, February given jail with credit time grant as a order conditional writ. of Burkett’s 24, February App. 49-52. order, "petition” As we read the the new contemplated petition Pennsylvania Appellate for enforce- Rule of Procedure 1925(a) provides as follows: ment. 1223 n. 35. infra magistrate’s report, adopted could not be transmitted to Su- the record as the appeal Court15 and the could perior opinion, court’s noted the “considerable de- proceed.16 lay” County in the Blair court. Based on respondent’s hearing, statements at the 140/141, attempted the court to com- In however, magistrate the found that “the reporter produce the pel the court tran- finally matter has disposed been by entering May on scripts orders County], (“on complete and the record August 21, (“forthwith”) and on [Blair 30”). August Despite Superior been transmitted to the ... the Court or before continuing transcripts, post-verdict lack of where in the course of normal August motions were heard on 1985. procedure, petition, the merits of the in- hearing, Despite yet the court has cluding issue can be ad- either rule on the motions or sentence App. dressed.” 134.17 Burkett. magistrate In No. filed a report September on 1985 without hold- D. The Habeas Petitions Instant ing evidentiary hearing. He recom- peti- Burkett filed the two instant habeas mended dismissal for want of exhaustion 27,1985. August tions on Civ. No. 85-1966 finally on basis that “the matter has (referred 86-3074,” to hereinafter as “No. disposed County] and is [Blair sought appeal) its docket number on re- presently subject of an delay in 284 lease for the and also claimed Pennsylvania Superior Court where that the federal court’s 1985 order appellate procedure course of normal giving days the Blair court 60 petition, including merits of the issue of exposed him sentence him to a severe App. can be addressed.” 56. Burk- retaliatory sentence. Civ. No. 85-1965 timely objected ett he had not been (“No. appeal) 86-3121” on asserted similar sentenced in 140/141 and that his concerning claims both 140/141 and 161. proceed 161 could not because Blair 86-3074, by Septem- No. orders dated (due Sep- had not transmitted the record 20,1985, magistrate ber 19 and ordered 23, 1985) Superior tember Court.18 answer, supplemental appointed counsel adopted magistrate’s district Burkett, evidentiary hearing and set an report and recommendation on October eventually that was held December magis- 1985. On December 1985 the Burkett was transferred to different trate recommended dismissal for want of prisons September three times between timely exhaustion. After objections by Burkett, November 1985. Each time he adopted mag- promptly the district court report istrate’s notified the district opinion January as its court of new ad- 15, 1986. timely appeal. magistrate’s Burkett filed a dress. The court sent the re- Upon receipt judge appeal days of the notice of the shall transmit the record within 40 of the from, 13, (here filing August appealed appeal who entered the order if the of the notice of 1985). 1931(b) gives judge already appear reasons for the order do not of Rule the trial the record, original duty ensuring shall of that the record is forthwith file of record at least a statement, completed opinion, and transmitted. Rule brief in the 1935 also form of an succession, order, gives, appellate prothon- rulings the court the reasons for the or for the or Administrator, of, otary, the state Court complained the specify other matters or shall Supreme authority state Court the to deal with writing place the in the record where such delinquency by lower the court.

reasons be found. 15. “When the record is complete 17. Blair purposes for County represented Septem- counsel on appeal, 23, the the clerk of the lower court shall ber 26 and December 1985 that the trial prothonotary 1, (due 1985) transmit it to the September being was trans- record 1931(c). 127-28, Pa.R.App.P. court.” Superior App. Court. 204. mitted record, Superior Court received the without January 16. appeal proceed, which 2, could not on Pennsylvania the Appellate Rule of Procedure 2185(a) 1986. provides appellant's that an brief shall days be due 40 after the record is transmitted. 18. See 1931(a) provides supra Rule that the lower court clerk at 1213-14 & nn. 14-16.

port by 1986, in No. 86-3121 certified mail remanding to his the case to County Blair 23, 1985; September days correct address on it for 30 in which time new counsel also communications to his correct ad- sent appointed. could appointing After new 4, 9, 11, on dress October October October 9, 1986, April counsel on Blair County did 1985, 12, and November each which as- 16, not the return record until July 1986. him “you any will be advised of sured appeal then appears to proceeded However, the final order decision.” critical normally. The Superior Court denied the 86-3121, by which filed in No. was the appeal 12, January on 1987 and denied re- 15, court on October was sent uncerti- 26, hearing February on 1987. Burkett’s wrong prison; Burkett fied mail did timely petition for pending allocatur is be- he it not receive it nor did learn of until the Pennsylvania fore Supreme Court. 23, hearing in No. December 161, In order was inquiry mail on despite December 16. September 18, 1985, filed on and the record 75, App. January 175-176. On 15 and Superior Septem- was due in the Court on 21, 1986, moved Burkett for reconsidera- 22, However, opinion ber 1985. post- on (1) grounds: two he had tion on not 8, verdict motions was filed until order, been notified of the October argument —a month after oral in this had not court considered his opinion Court and as the writer com- was continuing or 140/141 convictions pleting the final opinion draft this January 17, appeal. in his 161 On circulation to the other members its district vacated October order panel. Blair County not indicated ground; then on former it rede- whether sentencing opinion a remains petition corpus nied Burkett’s for habeas filed or whether the record has now been 23, January on 17 and 1986. Burkett filed Superior transmitted to the Court.19 The January a notice of from both or- Superior ap- Court ordered Blair 5, on February ders 1986. This Court point April 3, counsel new for Burkett on granted probable a certificate of cause in 1986, 9, April did so on 1986. appeals both on October 1986. Oral 140/141, argument April 10, transcript was heard first was filed on October but final E. State Courts: Round III complete transcript August until 11, 1986. The court scheduled hear- new the day On after the federal instant ha- ings post-verdict on motions but has not petitions beas were docketed in the district yet hearing. Shortly held such a before court, Pennsylvania Superior Court de- case, argument in oral sched- latest nied state relief on habeas based hearing again. uled postponed had to be all of Burkett’s cases. Burkett then took assigned had the case hear Pennsylvania state habeas claims to the judge who been member Supreme September Court on attorney’s during district penden- office which eventually April denied relief on motions, cy of Burkett’s successfully Burkett moved to recuse the In the on direct the record judge. argument At oral indicated counsel Superior was transmitted to Court on Janu- currently that the motions were scheduled ary four months So that late. he hearing May could raise his old counsel’s ineffectiveness appeal, his direct Burkett renewed the also petition filed a new habeas request for 22, new counsel in on been de- the Blair court December 1986, nied Supe- challenging court. the court’s continued fail- granted request 4, rior Court April on ure to or sen- hear motions supra 10, only concerning 19. See at 1213-14 & nn. 14-16. ett's 161 claim on December 86-313, suit in filed federal court under 42 in we were U.S.C. 1986 W.D. Pa.Civ. No. 10, 1985, February appeal on pro- interlocutory § 1983 on based forced to dismiss Burkett’s 25, thonotary’s jurisdiction February failure transmit the records in lack of on 1987 in 161 284. The district court dismissed Burk- 3d No. 86-3785. Cir. 1216 appeal Ap- him in court denied the time to

tence 140/41. The under Federal Rule of 4(a)(5), 16, 2, pellate The record does not Procedure due December on June 1987. writ 1985. appealed the denial. if Burkett has reveal begin analysis our the case of IN

II. APPELLATE JURISDICTION Keve, (3d Cir.1983). West v. 721 F.2d 91 TIME EXTENDING NO. 86-3121: West, appellant we confronted an who had 60(b) APPEAL UNDER RULE FOR 60(b) filed a Rule motion whose “sole stat- purpose ed appeal as such ... to extend the time for Because Burkett filed no [was] appeal.” Carefully limiting 15, deny- Id. 96. our 1985 final order from the October facts, specific decision to those we held raise ing the writ in No. we sua that a district court could entertain such a jurisdiction over sponte the issue of our only motion if subsequent the motion and file motions de- that case.20 Burkett did appeal notice of met the time constraints of nominated as motions for reconsideration 4(a)(5). Rule at 97.22 Id. 21, January on 15 and 1986. The district court treated these as a motion for relief In Hall v. Community Mental Health order, its 15 see Fed.R.Civ.P. from October (3d County, Center Beaver 772 F.2d 42 motion, 60(b), granted and redenied Cir.1985), applied we toWest bar relief corpus petition January on 17 and habeas through 60(b) party a Rule motion to a appeal notice of 23. Burkett then filed a counsel had not notified whose 5, February 1986. If the district court entry court of the of a final order. We power had the to construe the motions as it result, though reached this counsel in file did order to allow Burkett notified, 46, for neither side had been id. at timely appeal, jurisdic- notice of we have on the basis of Federal Rule of Civil Proce- tion under 28 U.S.C. 1291 to review the 77(d), § dure which states that “[l]ack If the reentered final order.21 district entry by notice of the the clerk does not error, however, court’s construction was appeal affect time to or relieve or au- jurisdiction: we lack Burkett’s motions party thorize the court to relieve a untimely could construed as either be allowed, appeal failure to within the time motions for reconsideration under Federal 4(a).” except permitted in Rule Id. at 59(e), filing Rule of Civil Procedure whose Noting diligence, 43. counsel’s lack of deadline in this case would have however, been Octo- expressly declined to decide 29, 1985; untimely ber notices of might permitted whether relief under Appellate 60(b) under Rule of filing Federal Procedure Rule “when 4(a)(1), filing with a deadline of November is based on reliance on some affirmative 14, 1985; untimely or motions to extend behavior of the district court.” Id. at 45.23 1036, (8th 1978); requirement timely ap- Fidelity Dep. of a notice of Cir. & Co. "[T]he 1037-38 ” Inc., peal 'mandatory jurisdictional.' Pool, Griggs Md. v. USAFORM Hail 523 F.2d of 744, Cir.1975), 56, Co., denied, (5th v. Provident Consumer Discount 459 U.S. 747-51 rt. 425 U.S. ce 61, 950, 1725, (1976); 103 S.Ct. 74 L.Ed.2d 225 96 S.Ct. 48 L.Ed.2d 194 see (citation omitted). Gable, 49, (3d also Sames v. 732 F.2d 51 n. 2 1984) (distinguishing "spe Cir. West on basis of Respondents question have not raised the circumstance”). cial whether the district court abused its discretion order, reentering its final so we need not holding explicitly, so at least four 23. While not Schweiker, address that issue. See Felshina v. Appeals in addition to this Courts of 71, (2d Cir.1983). 707 F.2d 72 arguendo least Hall have at assumed such See, might granted. e.g., Spika Vil relief v. West, Regardless holding our at least six Lombard, Ill., 282, (7th lage F.2d 285 Appeals Courts have allowed relief under denied, 1056, Cir.1985), 474 U.S. 106 S.Ct. 60(b) cert. Rule outside the time constraints under 793, (1986); Wyan 4(a)(5). See, 88 L.Ed.2d 771 Case v. BASF e.g., Rule Harnish v. Manatee dotte, (Fed.Cir.) Fla., (pro (11th F.2d se County, 783 F.2d 1537-38 Cir. denied, 1986); McManus, litigant), cert. Wallace v. 776 F.2d (1984); (pro (10th Cir.1985) Hensley litigant); L.Ed.2d 321 v. Chesa Rodgers se v. Watt, Co., (4th (9th Cir.1983) (en peake Ry. & O. 651 F.2d 459-60 R., Inc., Felshina, 72; banc); Cir.1981); Buckeye Scola v. Boat Frances 707 F.2d at Cellu Co., (1st Cir.1980). Braggs Corp. also James v. lose Elec. Const. F.2d F.2d

1217 distinguishable from any case is “advised of Only The instant decision.” the critical in Hall. application and both West West’s final to wrong order was sent the address. dif- of Burkett’s motion was purpose The current situation parallels therefore in ferent from that under consideration Hall those which explicitly distin- Because motion for recon- West. Burkett’s guished itself: cases, “In these and other only by was not his sideration motivated 60(b) the motions were allowed because appeal, more time in which to but need duty diligence counsel’s suspended of was court’s by also the failure consider in reliance on some affirmative of action continuing convictions de- 140/141 772 (citing district court.” F.2d at 45 appeal, “sole lay in his motion’s cases).24 purpose” stated was not “to extend the West, appeal.” 721 F.2d 96. time for We reaffirm and West Hall and do similarly We believe that facts of this them, not distinguish extend ourselves to significantly different from those case are presents exceptional but this case circum Hall, of an which dealt with actions that justify 60(b) stances relief under Rule diligent. who attorney was not Burkett 4(a)(5). outside the time constraints of Rule only acting pro se but was incar- was not dilig emphasize Burkett cerated, physically respon- by restrained ent,25 petitioner,26 incarcerated habeas re person checking dents from on the sta- peatedly from jail transferred to jail; that Fallen v. United tus of his case. Cf. affirmative of the behavior induced court States, 142-143, 378 U.S. 84 S.Ct. him await by notification the court for a 1689, 1691-1692, 12 L.Ed.2d 760 time;27 of length reasonable that he (court accept appeal must notice of filed judgment of the entry learned too late to by prison prevented late prisoner because apply 4(a)(5); for relief under Rule that he timely filing). exceptionally its He was promptly sought 60(b) relief under Rule diligent notifying court of three ad- days learning entry within of the changes dress responding to court or- judgment; respondents and that have ders, magis- and the clerk sent the prejudice.28 shown trate’s order to the cer- correct address the foregoing For reasons the district tified clerk importantly, mail. Most power 60(b)29 had the under Rule wrote four times October judgment. vacate and reenter November 1985—thus before af- Because both entry ter then judgment appeal of final 86- Burkett filed a notice of within No. days reentry, jurisdiction 3121—and assured him that he have would we States, 1044, 1046, (1963). Barring United U.S. 103 S.Ct. L.Ed.2d 148 Rule Brennan, (1982) (opinion 60(b) only delay, 74 L.Ed.2d 615 relief here thus would serve J., certiorari). respecting finality. denial of Indeed, appears Burkett’s reliance to have 27. Burkett’s December 16 letter was written days been reasonable because No. his other after the court had assured last petition, any federal habeas he notified was docketed simulta- him that would be decision. neously pending and was in still without fact Hashagen, final resolution. United States v. F.2d 899 Cf. (3d Cir.1987) (in banc) (allowing premature prompt prejudice); In addition notification criminal in absence of Rich Jones, (3d Cir.1977) changes, of all address note v. that he wrote erson (allowing day premature the court on December 1985—the civil in absence of 4(a)(5) inquire expired prejudice). Rule limit whether —to had been order entered. not, not, need decide 29. We and do whether corpus 26. We too that in a should of Rule note an order habeas relief 60(b)(2) come under rubric (where diligence strictly judicata. lead case is never res A due did not successive (where order); 60(b)(5) alleging discovery petition grounds timely identical longer judgment judge equitable that entertained unless "the of court satis- is no "it application”); justice prospective or fied that the ends of will not be served should relief). 2244(a); 60(b)(6) justifying inquiry.” ("any such other reason U.S.C. see Sanders § States, Sames, 51 n. 2. United 732 F.2d at 1218 open pro- to collateral attack in this under 28 not of the order the merits

review Hence, ceeding. Burkett’s claims would 1291. U.S.C. § pro- if only have become unexhausted state ceedings progressed to a sufficient OF III. EXHAUSTION degree. REMEDIES STATE 86-3074, habeas Burkett’s direct seeking federal As to No. prisoner A state appears proceeding “the remedies to be exhaust 284 now must first relief unless has thus com normally.30 of the State” in the courts available plied previous of available court order as an absence with the “there is either alleged or the existence of that Blair process 284. Burkett has corrective State rendering process appeal by inef- transmit delayed such further circumstances late, rights prison- months and he ting the record four protect fective 2254(b). delay As we have three-month since alleges a further 28 U.S.C. er.” § However, however, legal is is court’s decision. the district previously, noted “[i]t exhausted, not the is before disputed not that the case now that are to be issues Supreme Pennsylvania rel. v. Wal- Court. Under ex Geisler petitioner.” U.S. (3d Cir.1975)(quot- circumstances, it is ters, we believe 510 F.2d court, F.Supp. in the first ing Thompson, appropriate to allow Park v. end, instance, petitioner’s “inexcusa- claims. We (D.Haw.1973)). To that to hear pro- the district court’s delay the state will therefore affirm or inordinate ble in No. 86- may render for lack of exhaustion cessing claims for relief dismissal protect the ineffective to remedy ... state excusing a lack

rights prisoner,” in In No. there been Fulcomer, 800 Wojtczak v. exhaustion. change us to find that Burk sufficient Cir.1986). (3d 353, 354 F.2d unexhaust ett’s claims have since become Pennsyl no indication that the general, burden rests on a ed. There is receive facts war courts will soon petitioner prove all vania habeas they dispose soon relief, 669 F.2d 140/141 or that will ranting Cuyler, Brown v. again give (3d Cir.1982), including facts if we were inclined Because of the requirement, yet more time. the exhaustion the state relevant (3d Burkett has Redman, delay, we find that F.2d continued Gonce proc However, remedies in this Cir.1985). petitioner has exhausted his state where a delay, eeding.31 we have inordinate demonstrated respondents to dem placed the burden on “justice delayed is repeat that We why further resort to the state onstrate Geisler, 510 F.2d at 893. justice denied.” Wojtczak, required. courts should be See requirements fully appreciate 355-56; Howard, Codispoti v. 800 F.2d at deference to the state comity, but further (3d Cir.1978). 589 F.2d constitute in No. 86-3121 would courts errors, making mockery of comity of court that entertained The district rights guaranteed that are fundamental petition found that Burkett’s earlier habeas Hence we guilty and innocent alike. already suffi 1985was delay in egregious ongoing that the quite That cor hold cient to excuse exhaustion. itself, amounting to five and 161 140/141 finding part was of an order which rect of law state, years, as a matter and one-half appealed by the and we did not was con remedies excuses exhaustion of state probable peti cause grant raised Burkett cerning all federal claims tion; ruling therefore the district court’s Wojtczak, erly court. See magistrate’s finding respect seek relief in federal in this (finding of three premature. supra F.2d at 356 n. 3 & n. 17. 1214-15 ruling petition years PCHA and one-half proceed in can now Even if Burkett’s where cause of exhaustion even excused long enough believe Burkett has waited removed). now have system may prop- for the state court to act glo-American Wojtczak, jurisprudence. in 86-3121. See at 354. The liberties the district court erred as a matter Because now embodied therein were first articu- finding law that failed to lated in the very foundation of our English exhaust, its on that issue must order be heritage. law Magna Carta, See c. 29 [c. reversed.32 King 40 of 1215; John’s Charter of c. 29 of King Edward’s (1225)(“To Charter of 1297] CONSTITUTIONAL IY. PROTECTIONS sell, none will we to none deny will we or SPEEDY AGAINST DELAY: TRIAL delay, right justice”). or Speedy The Trial AND DUE PROCESS CONCERNS applicable clause is part to state trials as Having jurisdic- found that we have both process the due required by the Fourteenth timely over No. 86-3121 because a tion 226, Amendment. Klopfer, 386 U.S. at 87 notice of has been filed and that S.Ct. at 995. sufficiently state remedies have been ex- In determining right whether the hausted, we now consider the merits of the violated, been a court should weigh four legal presented that issues habeas cor- “Length delay, factors: the reason for petition petition.33 Burkett’s arises pus at delay, the the defendant's assertion of his lines of the intersection of two cases. In right, and prejudice to the defendant.” line, guarantees the Sixth Amendment one 514, 530, Barker v. 407 Wingo, U.S. 92 trial, right speedy applies to a which 2182, 2192, S.Ct. 33 L.Ed.2d (1972); 101 states Fourteenth Amendment. Sullivan, Sandler v. (3d 748 F.2d 820 Cir. Carolina, Klopfer v. North 386 See U.S. 1984). right Because speedy “the to a trial 213, 988, (1967). 87 1 S.Ct. 18 L.Ed.2d In is a vague concept more than proce other line, the second the Due Process clause of rights,” Barker, dural 521, 407 U.S. at 92 guaran- the Fourteenth Amendment has 2187, S.Ct. at are compelled courts “ap procedur- to state criminal teed defendants proach speedy trial cases on an ad hoc safeguards level, not al at but basis,” 530, id. at 92 S.Ct. at 2192. Wheth right. appeals also for as of See Evitts v. particular er a rights individual’s 387, 830, Lucey, 469 U.S. 105 S.Ct. 83 “depends violated upon circumstances,” (1985); Illinois, 821 L.Ed.2d v. 351 Griffin Pollard, 361, 12, 585, (1956). 486, 352 U.S. at 77 U.S. 76 100 L.Ed. S.Ct. at S.Ct. 891 upon first therefore “a functional applicable analysis We review the law in both right particular lines to determine if or apply either both context of the and, so, they Barker, 522, if may provide. what relief case.” 407 U.S. at 92 S.Ct. at explained fully below, isAs more analysis we find 2188. Hence presents the Barker applicable. both lines We will guidelines, therefore four factors rigid that “are not apply analysis petitions their to Burkett’s tests,” Sullivan, 249, 793 Perez v. F.2d - extent that the record (10th reveals no Cir.), denied, U.S. -, cert. material issues of fact. 413, (1986), S.Ct. L.Ed.2d and no single necessary factor is “either or suffi A. Right Speedy Trial deprivation cient condition of right of a speedy Barker, to a right Sixth Amendment trial.” to a 407 U.S. at speedy trial is a fundamental tenet of An- 92 S.Ct. at 2193. regard We note also were County’s that even we to We find the as frivolous Blair assertion unexhausted, concerning claims filing relief that Burkett’s recent a new state habeas claims, would petition not be barred implicit 140/141 in its court constitutes his ad- they wholly separate since arise from a convic mission “that he has exhausted his state futile, tion. The "total exhaustion” rule of attempts Rose v. remedies nor are and as a conse- Lundy, 455 U.S. 102 S.Ct. quence, the Federal action is moot.” Brief for (1982), applies only 71 L.Ed.2d 379 to claims Appellees at 8. arising single from a criminal case. Nor is required any age encompassed peti exhaustion view of the the cases event when a obliged tioner in No. to at essence seeks of a we feel least con- review state's failure comply legal Tully sider with a federal court’s mandate. the merits of the issues rather than Scheu, (3d Cir.1980). automatically 637 F.2d the district court for remand hold purpose. that this is the here. at case infra Supreme to a conclusion noted in Perez since the analysis

If leads Pollard, trial has been Court’s decision in it “and oth- all violated, of the violation must ers which have addressed the issue have See, 30th Ju e.g., rectified. Braden v. either the subject treated as established Kentucky, 410 dicial Court perpetuated Circuit law or have the Court’s as- U.S. sumption in Pollard.” (1973). Where the L.Ed.2d 443 cases). (citing rectified, remedy must cannot be explicit We now make what prejudice to custody with discharge from cases, previous have assumed our States, 412 v. United retrial. See Strunk Speedy Trial clause of the Sixth 2260, 2263-64, 434, 440, 37 U.S. 93 S.Ct. applies Amendment from the time an ac (1973). L.Ed.2d 56 criminally charged, cused is arrested or Supreme nor Although neither the Court Marion, 307, United v. 404 States U.S. definitively that held this Court 320, 92 30 S.Ct. L.Ed.2d 468 post-verdict right speedy applies trial to to (1971),up through sentencing phase proceedings, arguendo have assumed both prosecution, Campisi, see 583 F.2d at 694 right least to sentenc that the extends at words, final, pre-appel —in other until one States, ing. See, e.g., Pollard v. United late determination has been made as to 361, 481, 485-86, 354, 1 352 U.S. 77 S.Ct. long whether and for how the accused (1957); v. L.Ed.2d 393 United States Cam should be incarcerated. 692, (3d Cir.1978); pisi, 583 F.2d 694 see Campisi, deciding without Cunningham, v. 819 also Schandelmeier proposition, applied this last we the four- 52, (3d Cir.1986) (dismissing F.2d 55 with part speedy Barker test trial claims exhaustion, prejudice, for out want concerning delays sentencing. Campisi, context). post-verdict speedy trial claim 583 F.2d at Other courts have done including Other the district court courts— See, e.g., Campbell, the same. 531 F.2d at action, in Burkett’s earlier habeas see 1335; Pounds, 599-601; 417 A.2d at see squarely Supp. App. 7—have held that the Perez, (deciding also 793 F.2d at 254 defini applies Speedy Trial clause to the sentenc tively Speedy applies that the Trial clause ing phase prosecution. Tinghitella v. Reese, post-verdict proceedings); 568 308, F.2d 312-13 California, 718 State of (same). F.2d at 1253 We hold that (9th Cir.1983); Merrival, United States v. proper test to determine a Speedy Trial 717, (8th Cir.1979); 600 F.2d 720 United clause violation in a context is Howard, 269, (5th 577 F.2d 270 States v. test of Wingo, four-factor Barker v. Cir.1978); Reese, v. 568 F.2d United States 530, 92 at 2192. More 407 U.S. at S.Ct. 1246, (6th Cir.1977); 1253 v. United States Cir.1976),over, agree prevailing we with the caselaw 1333, (5th Campbell, 531 F.2d 1335 that none of the Barker factors is either denied, 851, rt. 434 U.S. 98 S.Ct. ce Nevertheless, necessary or sufficient. 164, (1977); 54 L.Ed.2d 121 Juarez-Casares while “all four factors are to be balanced States, 190, (5th v. United 496 F.2d 192 light of the facts and circumstances of the Cir.1974) (prisoner discharged for 31- case,” Perez, (citations 793 F.2d at 254 delay); Hooper Cunningham, month v. omitted), “once a defendant has been con 4, (W.D.Pa. slip. op. Civ. No. at 9 it would be the rarest of circum 21, 1985) WESTLAW, victed Feb. [Available (Blair right stances in which the prisoner DCT un database] infringed showing 37 could be without sentenced for months after trial must be discharged prejudice.” Additionally, at 256. custody), Id. motion to with (3d agree applicable is in the appeal granted, draw No. 85-3161 Cir. that Strunk also 18, 1985).34 and, Indeed, Sept. the Tenth context if a violation is Circuit Tortorello, 1307, Cir.1971) (4th (same); Com- 34. See also United States v. 391 F.2d 443 F.2d 1310 587, Pounds, (2d Cir.1968) 597, arguendo (assuming 621, 589 monwealth v. 417 A.2d 490 Pa. Speedy Bra- applies sentencing); Trial Clause (1980) (same). 599 Ctr., dy Superintendent, v. Anne Det. Arundel Co.

1221 found, remedy must be with Lowe v. Letsinger, 308, (7th 112.F.2d 312 remedy if no lesser can Cir.1985); retrial Caldwell, DeLancy v. 741 F.2d rectify prejudice to 412 the defendant. 1246, (10th Cir.1984); 1247-48 United 440, U.S. at 93 S.Ct. at 2263-64. Pratt, 89, (1st States v. Cir.), 645 F.2d 91 denied, 881, cert. 369, 454 U.S. 102 S.Ct. 70

B. Due Process (1981); L.Ed.2d 195 Shaw, Rheuark v. 628 Supreme 297, Court has found that the (5th F.2d Cir.1980), 302-04 cert. de protects right Due nied, Process clause 931, 1392, 101 S.Ct. right guaranteed direct when (1981); L.Ed.2d McLallen v. state, though the Constitution Henderson, (8th 492 F.2d 1299-1300 require grant right. does not states to Cir.1974); Concepcion, Rivera v. 469 F.2d See, Evitts, e.g., 469 U.S. at 105 S.Ct. (1st Cir.1972); Crouse, Way v. process requires at 834. Due right that a (10th Cir.1970); F.2d 146-47 see also “ ‘adequate be a to an Wicker, U.S. ex rel. Hankins v. appeal” effective’ which is “more than a F.Supp. (W.D.Pa.1984), aff'd ” ‘meaningless ritual.’ Id. at 105 mem., (3d Cir.), denied, cert. - (quoting Illinois, S.Ct. U.S. -, Griffin L.Ed.2d 64 12, 18, 585, 590, 351 U.S. 76 S.Ct. 100 L.Ed. (1986); Zimmerman, Mitchell v. 582 (1956), Douglas California, 891 v. 372 F.Supp. (E.D.Pa.1984). 187-88 Delays 353, 358, 814, 817, 83 S.Ct. 9 U.S. L.Ed.2d such as those attendant to Burkett’s con (1963)). process protects Due further may victions therefore violate the stric only right not “to obtain a process. favorable tures of due decision,” right but also the “to obtain a at all on decision ... the merits of the The Due Process pro clause thus Evitts, case.” at n. U.S. only against delays trial, tects not in includ (emphasis original). S.Ct. at 835 n. 6 in In ing sentencing; guarantees it also a rea right short a convicted defendant has a sonably speedy appeal if the state has cho be, what the know sentence is to and to give sen to right defendants the to “at proceed appeal. with a direct tempt[ conviction, to demonstrate that the ] consequent and the liberty, drastic loss of The Court has been clear in its reasons Evitts, is unlawful.” 469 U.S. at extending meaningful procedural post-verdict S.Ct. at 836. Where delays not protections process appeals of due as of impede sentencing appeal but also the right. By deciding appeal that an is so right, as of doubly implicated. clause is important that it must be available as a process “Due can any be denied sub right, matter of a state has “made the appellate pro stantial retardation of the appeal the step, adjudication final in the Rheuark, cess.” (citing 628 F.2d at 302 guilt or of the individual.” Id. at innocence cases); DeLancy, see also 741 F.2d at 1247 (citing 105 S.Ct. at 840 Griffin, 351 (same). 590). U.S. at 76 S.Ct. at The state itself recognizes appeal right plays an as of generally is a nec “[P]roof such a crucial role “the State could not essary but not sufficient element of a due ... arbitrar[il]y” ... or decide[ ] the process Lovasco, claim.” United States v. deny appellant otherwise proce- “fair 783, 790, 2044, 2048-49, 431 U.S. 97 S.Ct. Evitts, dure.” 469 U.S. at 105 S.Ct. at (1977). Moreover, 52 L.Ed.2d state ac unfair,” “fundamentally tions must be undesirable, merely in order to violate

We have due held that inordinate and See, process. delays e.g., Donnelly unexcused in post-trial post-con or DeChristo 1868, 1872, proceedings foro, viction 416 U.S. 94 S.Ct. may violate a convict’s (1974). “However, rights.” 40 L.Ed.2d 431 Codispoti, “constitutional ... not case, every delay F.2d at 142. Several in the of a even an ap other courts of one, peals process.” have identified inordinate violates due the source of these Rhe See, rights uark, as the Due e.g., 628 F.2d at 303. The existence of a clause. Process due left to a new should be held or whether must thus be process due violation passage charges to the of time the must be determination. an ad hoc dismissed”); Rheuark, n. 8 628 F.2d at 303 - Process and the Due Because both (if delay retrial is ordered after substantial constrain Speedy Trial clauses appeal, applies directly in deter- Barker and the Tenth Cir delay, Fifth Circuit mining Speedy whether the Trial clause factors the four Barker cuit have looked to retrial). should bar such determining due whether as a means of exceptionally egregious circumstanc- DeLancy, process has been violated. es, delay ‘fun- (reviewing delays occa itself those at 1247-48 “violate[ ] Rheuark, conceptions justice 628 damental which lie at securing appeal); sioned (same). political Because of both of our civil and institu- F.2d at 302-04 base gatekeep sentencing delay tions’ ... and which define ‘the communi- ” ing played by sentencing in connection ty’s play decency.’ role sense of fair Lo- Pennsylvania appeals, vasco, we too face the at in Burkett’s cases. We (citations omitted). same situation Once the time that con- matter, general agree as a Barker remedy elapsed stitutes the process should also inform our due factors can call it back. Where is so extreme determination, right for “the to avoid un proportions, as to assume constitutional appellate process in the reasonable unlikely thus becomes less of an trial.” De- similar remedy. Lancy, 741 F.2d at 1247. Moreover, discharge generally is a However, factor Barker remedy available where lesser remedies fully concurrently run when exam- does not prove curbing continuing ineffective ining delays delays process due violation. Where a court order Compare initiating review. discharge has denied on the condition that 374, 378-80, Hooey, 393 U.S. 89

Smith v. granted, remedy a lesser be but that order 575, 577-78, (1969), 21 S.Ct. L.Ed.2d 607 unfulfilled, gone has is indeed Rheuark, with 628 F.2d at 303 n. 8. See, Brown, appropriate. e.g., Lane v. 372 prong adapting the of the Barker 768, 773, U.S. 83 S.Ct. 9 L.Ed.2d analysis appellate delays, to courts have (1963); Brady, 892 443 F.2d at 1309. promoting identified three interests in prompt appeals: THE MERITS V. (1) prevention oppressive incarcera- (2) process have found that due and pending appeal;

tion minimization of may rectify egre- lie speedy trial claims anxiety and concern of those convicted gious delay sentencing in and initiation of awaiting appeals; the outcome of their examine, light (3) appeal. We therefore in possibility limitation of the that a will just person’s grounds appeal, applicable legal principles dis- convicted cussed, and his or her in are defenses case rever- the two state convictions that retrial, might impaired. encompassed by sal and No. the habeas ex- corpus petition in which Burkett has Rheuark, 628 F.2d at 303 n. 8. his remedies. hausted state remedy pro The normal for a due rather, discharge; cess is not a violation 1981 A. Nos. 140 141 of attempt court faced with a should violation now been incarcerated for Burkett has any resulting prejudice to counteract dem a years six on 140/141 without However, well over by petitioner. onstrated a dis analyze Burkett’s habeas sentence. We attempting charge is warranted where an delay in appeal light of this remedy prej would not vitiate the alternate ability resulting delay in Burkett’s and the unfairness or udice of fundamental disregard with as well as the petitioner’s appeal, constitu itself violate a would has met the See, County court rights. e.g., Codispoti, 589 F.2d which tional denying fur- (district previous federal court order 142 court must decide “whether at

1223 including finding on the condition that Burkett be relief that delay ther alone had days order that within 60 sentenced prejudice.36 caused Burkett findings The —an years old. more than two now magistrate, including that of a speedy violation, trial adopted were Speedy Trial Violation incorporated by court; the district the dis- case, Burkett Under the law of the trict accompanying court’s order is not now speedy violation. established has subject to collateral attack. if it Even 30, court found on The district were, we think the order well trial would be within the district court’s discretion. resolved all County unless Blair violated length grown motions and sentenced three and one-half to five and one-half days all of his cases. The within years. reason for de- additional challenge magistrate’s county did not lay court calendars and the court either —crowded report recommendation before reporter’s delay in filing transcripts court, magistrate or the did not district —must weighed against government order, rather attempt the district court’s Barker, Burkett. 514, than complying sought no extension of time for U.S. at order, complied has not with re 92 S.Ct. at 2184. continuously Burkett has 140/141, and even offers no spect now right during asserted his Final- time. non-compliance.35 excuse ly, to Burkett found 30, district on May only court 1985 can supra see above, we have noted at As compounded the additional magistrate both the and the district years Barker two may found all factors have lost —he favor, weighed to part some extent least in the opportunity Burkett’s for concurrent partial suggests County probable 35. The dissent that Blair certificate of cause in Burkett’s appealed could not have Post at 1230 dismissing juris- order. instead of for want of However, n. 5. we believe that Blair App. diction. First, not, standing appeal. did Ledesma, appellant contrast magistrate 36. The stated: Perez U.S. 87 n. n. recognized Hooey, As the Court in Smith v. (1971), fully prevail appeal- L.Ed.2d to all as S.Ct. [89 aspects able of the order. dismissed The order (1969), occurs, 607] L.Ed.2d where petition conditionally —"unless may advantages individual lose certain such any appro- impose ... Blair fails to ... receiving concurrent sentences and priate days" sixty sentence within or- —and an enhanced receive sentence. County Blair dered "to act in accordance with prejudice extent of mea- While the cannot be Second, directive.” this court would district exactitude, appear sured it would with reason- authority had have no to enter constitutional delay by able to conclude that the the Blair such an order had no violation been at least County courts has caused some loss to hand, impending. On the other court must a petitioner. grant appropriate existing relief viola- where an Supp. App. at 10-11. Indeed, violation, having is found. tion a found prejudice district court found Because the in the nothing was there petition however, left to be decided in a new proceedings, present this earlier case does not remedy. Unfortunately, other than the when, ever, question of if a court find could court, retaining the district instead post-verdict speedy a trial violation first without (Obvi- jurisdiction, marked the case "closed.” finding prejudice. Judge We therefore find that ously the district court did not conceive that the county, once requirement, Garth’s issue, with which we do take warned, not would not sentence Burk- alone is insufficient and a circumstances, days). ett within Under these establishing prej- order, the burden of defendant bears udice, together less-than-pellucid we read the post at has opinion, grant see thus been satisfied. with court's aas conditional Garth, Judge signifi- recognize, with petition” of Burkett’s writ. The "new contem- assessing plated prejudice, cance of conviction in order must thus been a petition post- by appropriate disagree for enforcement reme- cannot with his conclusion conviction, dy, with the fact of violation established if Blair is less fear there that an individual complied successfully peti- neither being improperly subjected nor to incarceration. However, for an tioned extension. we sen- Post at 1231. stress that the tencing finality, may argued or an ulti- As for court court that this Court already prop- mately determined that the was final determine that no incarceration is order appealable by denying without er. egregious delays, For more on the other expect any per- sentencing,37and we would hand, relief anxiety and courts have found that was degree of some to suffer son petitioner mandated. The was uncondition- after six being sentenced not concern after ally released Juarez-Casares because particularly This is years of incarceration. designed delay for which he an unexcused 31-month order a federal court so where though possible prejudice, even had no effect had shown problem has still remedy the right prompt he had not asserted his years. after two A sentencing. 496 F.2d at 191-93. See prior determina- had there been Even six-year delay, during petitioner which de- concerning pre-sentence tion the 51 liberty was at for unexcused relief case where lay, are of no we aware months, Campbell, even was condemned denied Amendment was the Sixth under though petitioner had not asserted his egre- pre-sentence delay was as where right sentencing; remand was ordered denying cases gious as here. The facts of though findings as to even his significantly less relief have all involved allegations appeared weak. See delays. Campisi, 583 F.2d at extensive 1334-36. at 1252-53, 694-95, Reese, 568 F.2d at Merri- posture Perez, procedural Because of the val, 793 F.2d at F.2d at order, case, only prior only arising after a 252-57, ranging delays all found (for Brady, months, special Brady. take note of of which time we to 15 most five Merrival) sentence had been petitioner’s death days was example, all but vacated, the state did not resentence timely but but involved excusable. Pollard pre- eight years. Brady him himself promptly cor- accidentally invalid sentence (the statutory only to life al- invalidity its ferred death upon discovery of after rected 356-57, ternative), agree months, his counsel would not at but see 352 U.S. almost only 483, 485-86; sentencing proceeding with those jus- at four prosecution did not options, and the granted relief two tices would nonetheless have agreement. The dis- request- proceed without such though petitioner relief” on the condi- proper sentencing, id. at S.Ct. trict court “denied ed C.J., (Warren, dissenting). Brady promptly Pounds resentenced tion that delay, half full for time prison, also involved a 24-month about with credit life unexcused, appellant prompt- but his arrest. The state which served since to be sentenced complied, neither asserted and the Fourth Circuit declined ly prejudice. 417 A.2d at showed See the circum- nor relief under to order further largely Tortorello involved a ex- 599-601. F.2d at 1308- of the case. See 443 stances delay. 391 F.2d at cused 30-month resentencing

588-89. Howard involved a prior have a In this case we too years timely sentence had three after a order, complied has not but petitioner initially suspended and the Therefore, find a its terms. refused to placed probation; the court from the law of violation both resentencing pursuant to federal prohibit four because all Barker the case and petitioner the had not statute because weigh in Burkett’s favor. Blair factors sought to sentenced until after revoca- be 30, noncompliance the County’s with probation was threatened. See 577 tion court removes of the district peti- In the 1985 order Tinghitella, F.2d at 270-72. the normal reme timely as to whether jurisdiction prior any doubt tioner fled the Strunk, 412 at discharge, U.S. dy of see sentencing and refused to allow scheduled 2263-64, (un- 440, replaced at should constitutionally permissible 93 S.Ct. the state’s Braden, 410 at remedy, U.S. circumstances) sentencing by a lesser see the offer of der juncture 486, At this late 93 S.Ct. at 1125. F.2d at 310-13. in absentia. See 718 served. We that the courts 161 and 284 did 37. note in give already for time not concurrent credit

1225 discharge remedy appeal adequate can short of vindicate See id. no effective. at 393-94, 834-35; Griffin, right speedy to trial.38 at Burkett’s 351 20, U.S. at 76 at case, S.Ct. 591. In this it is only not that Burkett has been deprived Due Process Violation 2. right his to “at meaningful review time.” delay in Although sentencing the Manzo, Armstrong 380 U.S. the despite the order violates Sixth Amend 1187, 1191, S.Ct. (1965). 14 L.Ed.2d 62 speedy guarantee by ment trial itself Rather, he has also been prejudiced be- delay in discharge,39 the sentenc justifies cause possibility of “the that a convicted prohibits from ing pursuing also Burkett person’s grounds appeal, for and his or her pro in appeal an this case. due retrial, in defenses case of reversal and rights implicated. are thus cess there might Rheuark, impaired.” at F.2d Barker they fore examine the factors as Moreover, 303 n. possible anxiety 8. review, delay to apply in and we speedy concern rights pro- that trial delay sentencing that this in has find de tect, and which may have arisen from the prived process. Burkett of due delay extreme sentencing, in could have compounded by delay allowing has in Burkett shown monumental in an See id. appeal. initiation of Finally, being case. There excuse for this have noted that the district in its Barker two of the factors delay, inure im- Order of May found that Burkett Moreover, mediately to his favor. he as- prejudiced way in by delayed his right speedy sentencing his to serted at sentencing and order subject that is not to by March least record re- collateral equal attack. is his transcripts flects efforts to obtain appeal for the only and is exacer- prepare August motions in by sum, bated delay. the continued In July 1982 and actions of the Blair Court have not We also find that Burkett has been undesirable, merely been but so fundamen- prejudiced the monumental he has tally unfair they that amount to a violation attempts encountered his secure his process which Burkett is due. Be- right. bringing as of “In an cause of the unusual circumstances of this conviction, from above, as of his criminal discharge case discussed we find is attempting appropriate defendant demonstrate for remedy process this due conviction, violation. consequent that and the Ev loss of unlawful.” liberty, drastic Disposition

itts, atU.S. 105 S.Ct. at 836. Due process guarantees appellant 140/141, a criminal now been incar- minimum safeguards years certain to make cerated for six more than without the Judge suggests appropriate jail February Garth 7 to he could not remedy might be not but "to order any supra be credited in but case See 140/141. prisoner after the release had served his statu- at 1213& nn. 12-13. tory minimum sentence.” Post 1233. We do dispute Brady, remedy as in such a 39. Because we find that trial viola- However, appropriate. on occasion be discharge, tion warrants we could decline already Burkett has served more than 140/141 separate process reach the merits of the due minimum, statutory which would be no time However, explained claim. reasons at all. §§ Pa.Coris.Stat.Ann. text, independent process there is an due (burglary punishable years); by 0 to 20 id. appropriate, violation and we deem in view 3921, 3925, 3902, 3903, (theft by §§ unlaw- remedy, ground develop drastic taking by receiving property, ful and theft stolen Supreme well. We note too that Court has merge; punishable years); to 7 id. arguendo, holding assumed rather than so 3502(d) (theft merge charges burglary § formally, Speedy applies Trial that the clause (ter- purposes); §§ id. Pollard, post-verdict proceedings. See punishable by years); threats roristic to 5 id. 77 S.Ct. at 485-86. But cases cited (corruption punishable minors §§ cf. (lower Moreover, supra definitively years). applying at 1220 courts 0 to 5 on the record us, Hence, clause). appears Speedy stating it Trial an before that Burkett has not been addi- jail ground prudent. credited 161 or time in 284 for his tional decision is for our 1985; April 1982 to June as for his time finality sentencing imparts to a trial B. No. 161 guaranteed appellate and without the de- Burkett was arrested in 161 February on proper im- termination of whether it is January 20, 1982, convicted on prison charges.40 him at He all on these and July sentenced on 1985. He has right to his has shown effectively been unable con- this procedure, speedy trial and to fair and such sentence, however, viction and because of egregious delays have violated fundamen- the trial delay filing court’s opinion conceptions justice, play, tal fair and the County prothono- of the Blair Moreover, decency. contin- tary transmitting record, which was ues to violate a court order that would have Superior due in Court more than 21 months permitted remedy discharge. than lesser ago.42 Court, pressed by When this the Assistant The district court May held in Attorney representing District Blair Coun- if sentenced, Burkett were promptly ty conceded that the record was sufficient Speedy Trial Clause violation would have discharge for this Court to order as to been established. We did not disturb that Arg. 140/141. Tr. Or. 25.41 denying order in Burkett a certificate of probable cause, proffers and he no facts “Although the failure of the dis suggest that would that the Barker factors apply trict court to legal correct stan weighed should differently. now be Be- normally remand, dard should result in a sentenced, cause Burkett promptly was it permits we need not remand if ‘the record is the law of the case that he is not entitled ” only one resolution of the factual issue.’ to relief Speedy under the Trial clause.43 Honickman, A.J. Canfield However, Burkett has additionally met (3d Cir.1986) (quoting Pullman Stan delay in processing of his case for Swint, 273, 291-92, dard v. referral to the court. This 1781, 1791-92, (1982)). S.Ct. 72 L.Ed.2d 66 implicates process law, to due undisputed material facts in this case and we must analyze therefore it under the constitute a continuing violation of Burk four factors of Barker. Under the first ett’s speedy process rights. trial and due factor, the factual record reveals that Under the unusual circumstances of this certainly exists: it has been almost two case, including ongoing violation of the years sentenced, since he yet, was until a federal court order County’s and Blair con ago, scant months well after this case was cession as to appropriate remedy, us, argued to the trial court had not taken appears that no relief short step the first to clear way fully could remedy these violations. We appeal, and it is still not certain that his therefore order that the district court issue way has now been cleared.44 a writ of corpus habeas forthwith and dis charge Burkett from his factor, convictions in Nos. As for the county second of 1981. offered no excuse whatsoever for con- 40. 42. additionally imprisoned 13-16; We note supra that he See at 1213-14 & nn. see also years any supra more than four before sentence at 1215-16. him, imposed (in was 284) and even that sentence yet finally has not affirmed under the Judge procedure Garth believes that the appellate process Pennsylva- due Burkett under the district court in was so defective nia law. rely that we findings. cannot on its Post at 1230 correct, n. 3. If he were we would also have 41. MS. COHEN: I have to be very honest with to remand Burkett’s trial claim in 161 as you, put very Your Honors. You me in a We, however, well as believe that 140/141. tough position. question propriety of the district court’s perhaps I think on the record on 140 and procedure appeal. and order was one for direct very adequate this Court can make a supra See at 1223 n. matter, decision of what to do with that might appropriately that decision charge be to dis- dismiss, 14-16; supra after five and at 1213-14 & a half nn. see also years. supra at 1215-16. completing process, in timing delay cause he believed he could raise no other law, Pennsylvania of de- guaranteed under delay issues until the was remedied. Be- properly in- termining whether Burkett any cause has excused non-exhaus- January 1982 under his convic- carcerated any tion of issues which Burkett has to this charges. supra these As noted at tion on point attempted courts, to raise in the state 7,n. 1213-1214 nn. under 1212 & however, we will direct the trial court to Pennsylvania law the trial court could not him on plead allow remand join to opin- the record until the relevant transmit such other federal claims if he so desires. now, filed; ion had is not clear been appoint The district court should counsel.46 transmitted, that the record has been appeal proceed cannot without VI. CONCLUSION diligently as- record. Because It is not within our province judge appeal, the third serted his Barker stewardship of the County Blair Court of weighs heavily in his factor also favor. Common in disposing Pleas of its criminal factor, As for the fourth Barker Judge docket. Brumbaugh in his very re- find that the factual record is not suffi we opinion cent denying Burkett relief in 161 ciently developed us to allow to make a has recounted in some judicial detail the concerning prejudice. determination Al manpower shortage afflicting that county though length Burkett’s 1982).47 from 1979 to Supreme States being incarceration without able to Court clear, has made however, “negli- length approaches corresponding of the gence or overcrowded courts should be 140/141, portion in an undetermined weighted [against ... government] resulting prejudice may in 161 have since the ultimate responsibility for such mitigated County’s or cured Blair circumstances must rest govern- with the prompt sentencing following of Burkett the ment rather than with the defendant.” May 1985 order of the district court. Barker, 407 U.S. at 92 S.Ct. at 2192. We will therefore remand for factual find Including previous Burkett’s action, habeas ings concerning types federal courts have today before called at- identified, supra see and for tention to delays unconstitutional pro- balancing of the Barker factors.45 It is cessing criminal County cases Blair on at therefore the district in the first least three Hooper occasions: Cunning- stance that will determine if ham, (W.D.Pa. Civ. No. 84-2818 Feb. initiating appellate review has been so 1985) WESTLAW, data- DCT [Available egregious deny pro as to Burkett his due base]; Cunningham, Burkett v. Civ. No. guarantees. cess (W.D.Pa. 30, 1985); 85-769 Schandel- (3d Cunningham, meier v. 819 F.2d 52 appears It Burkett raised Cir.1986).48 egregious This case is the most delay in petitions issue of his habeas be- 45. We are confident that Blair County Supreme authority assign will now Court has used its quickly remaining impediments judges County, including remove the other to Blair Burkett's way 140/141, remand in no affects judge in but the measures taken so far —the ability of the Blair Court of Com- appear problems. do not to have resolved the expedite mon Pleas to the transmission of the 48. In Schandelmeier we Superior record to Court and otherwise exercise reprinted excerpts power appeal. its to advance Burkett’s See su- magistrates letters written two federal pra at 1214 & nn. 15-16 and 1216. Such Judge Chief of the U.S. District Court for the prompt possibility put any action well an end to Pennsylvania. Western District of One wrote County finding prejudice. of the district court involving egregious that cases Blair de- determination, however, That is for the district lays "appear to be the than the rule rather court to make in the first instance. Blair, practice present exception sug- continuous source of concern.” A second 46. The Federal Public Defender, who is familiar Nix, gested notifying the N.C. Honorable Robert case, appear appropri- would to be the Jr., Supreme Chief Justice of the Court of Penn- willing ate choice if he is to serve. sylvania, hopefully arrange "so that he can note, however, get help additional rather than Pennsylvania has a Const., ordering judicial system, start the release of Blair V for us to County prisoners unified see Pa. Art. 2(a); Pennsylvania supra because of trial viola- at 1214 n. 16. The §

of all. forth, For the we has erred in respect, reasons have set I agree cannot partial granted relief will Burkett now with the majority's decision to decline to may attempt and he to obtain further relief reach the issue of whether a court find can on remand. a speedy trial violation without system county justice finding When a is unable first that preju- the defendant was provide even convicts with the most rudi- by diced post-verdict delay. the I conclude mentary process due whether finding that a prejudice —decisions is crucial not trials, they decisions received fair whether only legal to the conclusion that speedy a long they and for should be how incarcerat- trial violation has post-con- resulted from a ed, performance of the ministerial sentencing delay, viction but also to the compelling transcripts tasks of and trans- remedy imposed. determination of the to be mitting records to the courts— Third, I it conclude is the district compelled grant federal courts are relief court, court, not this which must decide in when the violations reach constitutional di- instance, first whether Burkett mensions, rights guard both to of those has demonstrating carried his burden falsely unfairly who or have been ac- prejudice, remedy but also what appro- guard the integrity cused and to of our priate if a trial violation is found. system justice itself. 86-3074, judgment

In No. of the dis- trict court will be affirmed. I. judgment In No. of the dis- majority has concluded that Burkett trict Concerning court will reversed. prejudiced by his sentencing delay No. 161 of Criminal prejudice and that this has been established proceed- case will be for further remanded as the Maj.Op., “law of the case.” ings opinion. consistent with this Concern- majority prejudice “discovers” ing Nos. 140 and 141 of the case will 1985, magistrate, be remanded to the district court the fact in with in- March a structions to issue writ of habeas cor- hearing without a or other evidence before forthwith, pus discharging Burkett from him, speculated “appear that would rea- his charges. conviction on those sonable to that the conclude” caused

Because concerning we have reversed some though loss to even Burkett convictions, two Burkett’s three costs in had been incarcerated on two unrelated these appeals consolidated shall be taxed years. convictions for 16 to to 44 against appellees two-thirds and one-third Supplemental Appendix at 11. Incredibly, against appellant. finding according prejudice, order, majority, is disclosed entered GARTH, Judge, dissenting Circuit which dismissed Burkett’s part concurring part: writ! My disagreement majority with the mind, my magistrate’s To report, stems from the majority's insistence that whole, when nothing read as a contained the district court a writ issue which would that properly could be termed finding a conviction under Crimi- demonstrated, and, nal Actions disagree Nos. 141. I 140 and respects. magistrate limited extent that the three prejudice, argument discussed was un- First, I believe that majority has sound unsupported evidence. The erroneously relied on “law of the case” magistrate argued although might one doctrine to find that Burkett has carried reasonably conclude that there demonstrating his burden of was some prejudice. Second, because I majority prejudice present, degree believe that the Id., Although courts, grant

tions.” at 55. we copy did not the state sent a of our then Schandelmeier, (unlike Burkett) unpublished relief to opinion who to Chief Justice Nix. We appear pressed again today’s did not opinion. the issue of do so denied, cert. (5th Cir.), appear particularly to him to be 444-45 did not comparison to other cases.1 great L.Ed.2d 123 (individual already who had been sentenced conclude, I as does the Even if were to charges on two unrelated denied relief af language vague from the majority, that the ter unreasonable on third “finding” magistrate’s report constituted charge prejudice found). because no finding prejudice, such a of the existence reversed as a would have to be majority argues The also that the County “finding” completely that is un- conclusory its waived to contest the “find magistrate The supported by evidence. ing” prejudice of attempt because it did not hearings and took no testimo- conducted the district Maj. court’s order. concerning, example, prose- ny for whether Op., County at 1223. But even if the cuting appeal has been made sufficiently prescient been to construe the Moreover, delay. I by difficult the more magistrate’s vague language finding as a impossible, it is if not out- suggest that prejudice, of the County cannot be deemed conclude, apparently rageous, as the ma- any objection to have waived to such a has, already that an individual who is jority finding County because the would not have (and charges unrelated incarcerated on two permitted to seek review of an isolat serving years) term of at least is is a “finding” Findings ed of fact. of fact are by being as a matter of law prejudiced are; appealable, not County orders and the (even delay to a one of five and subjected aggrieved by the order which dis awaiting years) while a one-half petition missed Burkett’s for writ of habe on a third unrelated conviction. decision Thus, corpus. my opinion, majori as might Although facts be established ty obliged has been to torture both the case, in such prejudice demonstrate a language analysis and the of the district yet by Burkett that this to be shown in an court’s order effort to find a for basis is such a case. It is for that reason that a May its conclusion that 1985 order hearing required is to determine whether appealed by was one which could be Blair requisite prejudice does fact exist.2 James, See United States v. 443, County.3 Maj.Op., F.2d at 1223 n. reads, magistrate’s report part: spend 1. The diced because he was forced to time in- opportunity carcerated without an for recognized Hooey, "As the Court in Smith v. (which imposi- 575, 577, review cannot be had before the S.Ct. [89 However, sentence). occurs, tion of I note that Burkett (1969), 607] L.Ed.2d where spending prison regard- this time in would may advantages individual lose certain such disposition appeals less of the of his in Criminal receiving concurrent sentences and Nos. 140 and because he has been Actions even receive an sentence. enhanced years under Criminal prejudice sentenced to 16 While the extent of cannot be exactitude, years appear Action No. 284 and 22 to 44 under Crimi- measured with it would delay by No. reasonable to conclude that the nal Action County Blair courts has caused some loss to petitioner____ majority argues May 3. The also that the Nevertheless, in view of the fact that the dispute a order. I do not order was fact, final proves nothing. petitioner sixty-one could recieve a [sic] but it A certificate of sentence, twenty-two year one hundred and probable was never issued from the dis- cause appear degree would that order, May which is the of trict court’s might which is not as have occurred critical as magistrate’s finding adopting "it order County some other cases where the Blair appear reasonable to conclude that the would possible period is incarceration much [prejudice].” There- ... has caused some shorter ...” fore, appeal, Burkett could not see 28 U.S.C. Supplemental Appendix (emphasis 10-12 add- (no appeal allowed unless a certificate of § 2253 ed). "findings” It is on the basis of these of the issues); County probable Blair cause nor could magistrate majority that the has chosen to man- aggrieved, appeal as it was not see note infra. court enter an order dis- date that district Burkett, obviously this reason that It was missing Burkett’s convictions as to Criminal Ac- direction, in accordance with the district court’s tions Nos. 140 and 141. Thus, majority’s petition. a “law filed new Indeed, brief, theory simply cannot withstand as I read Burkett’s there is of the case” County allegation respect analysis believed one raised in because even if Blair finding report sentencing delay magistrate’s Nos. that the contained in Criminal Actions preju- prejudice, desired to and even if Blair 140 and 141. Burkett claims he was majority disregard The has chosen to been freed the district court’s order. language clear of the district court’s order This, course, is not happened what be- which dismissed Burkett’s course, cause was not what the Instead, petition. it has chosen to construe district court ordered.5 granting ap- the order as one “conditional majority has concluded that Burkett proval” Maj.Op., of the writ. at 1213 n. 10 prejudiced has been in sen- reading 1223 n. clearly & 35. Such a tencing despite the fact that Burkett’s in- (1) untenable. district court’s order: carceration has not been due to the state denies petition relief; corpus habeas court’s failure to sentence him under Crimi- (2) directs County dispose nal Actions Rather, Nos. 140 and 141. post-trial impose motions and a sentence Burkett’s incarceration is due to the un- recommends sixty days; within related convictions under Criminal Action that Burkett file a new petition for habeas (under No. 284 which serving Burkett is if relief Blair to act in fails accord- years) sentence of 16 to 32 and Criminal ance with the court’s directive.4 (under Action No. 161 which Burkett is majority obviously ignored has the serving a sentence of 22 to 44 years). language order, clear of the district court’s Because I do not believe that delay alone petition which denied Burkett’s and direct- is sufficient to establish a trial vio- speedy ed that a new one if appropriate. be filed post-conviction lation in context, a and be- Alternatively, if majority ig- has not I agree cause cannot that the record dis- order, nored the district court’s then it any closes prejudice or that the majority’s must believe that a district court is some- flawed law of the case doctrine can furnish empowered grant how a future writ of prejudice exists, where agree none I cannot corpus habeas yet has not been —one majority’s with the decision to order the filed! district court to Burkett’s convic- Moreover, if approval” “conditional of tions in Criminal Action Nos. 140 and 141. granted, the writ had been then Burkett would have had no appealed need to have II. court, to this petition for his would have successful, majority Because the upon insists and he hold- already would have ing finding that a prejudice obtained his relief. County already Because Blair had not met the been made and conditions of thus constitutes the the writ’s “law of case,” denial sixty days, within righteously it “conditional declines to reach grant” of corpus legal habeas would have taken issue of finding whether a thereafter, effect and Burkett would have prejudice to the prerequisite defendant is a dispute finding, denied, such a it could not do so be- cause is unless the Court of Common 30, party cause appeal May County neither dispose could Pleas of Blair fails to adopted post-trial suspect finding. impose any appropriate 1985 order which motions and Having 30, opportunity sixty days. sentence challenge no within May order, IT IS FURTHERED ORDERED County that in the cannot have waived event that the Court any objections fails to act in might accordance findings have had to the petitioner with this directive that the file a may appear therein. petition, jurisdiction new on the merits Although majority claims that I have appro- be assumed this Court and that an procedure found "that the in the district court in priate merits determination be made.” May 1985 was so rely defective that we cannot Appendix at 154. 43, findings," on its op., maj. at 1226 n. majority my position. misunderstands I do not I am also confident if the procedure claim that the in the district court attempted the district court’s order argue only was defective. I that there was no improbable theory under this of "conditional finding made. relief, grant” of this court would have been compelled appellate jurisdiction to hold that no 4. pertinent 1985 order reads in appellant obtained because the was in part: way aggrieved by the order entered. v. Perez "IT petition Wayne IS ORDERED Ledesma, that the 87 n. 91 S.Ct. corpus Burkett for a writ of (1971) (a habeas is dis- prevailing party n. may 27 L.Ed.2d 701 probable missed. and that favor). a certificate of a decision in its spent jail speedy simply Id., trial violation. time is dead time.” I, however, n. 36. am at S.Ct. at 2193. Maj.Op., at Under our law, legal question system whereby an individual forced to confront be- is majority’s presumed proven innocent until accept guilty, I “law cause cannot true, giv- such considerations are and should theory. I conclude that a of the case” weight. en Yet manufactured, finding substantial these consider- not a post- ations lose much of their force in the legal is crucial to the conclu- the defendant conviction context. speedy trial has result- that a violation sion sentencing delay. post-conviction ed from a Post-conviction, there is less fear that being an improperly innocent individual is Although agree majority’s I with the subjected deprivations inherent in a defendant's con general conclusion that Although the incarceration. individual is trial must stitutional subjected uncertainty, post- some pre-trial, upheld post-conviction as well as uncertainty conviction differs both in de- see, e.g. Campisi, v. United States gree pre-trial and in kind from the uncer- (3d Cir.1978), signifi I F.2d 692 believe that observed, I tainty. pre-trial As cant differences are found between two anxiety individual’s around a revolves find- recently As the Tenth Circuit situations. ing guilt, of innocence or depri- freedom or Sullivan, pointed out in Perez - liberty. vation of the indi- Post-conviction denied, (10th Cir.), U.S. cert. punishment imminent; vidual knows that -, (1986): 93 L.Ed.2d 364 degree. it is uncertain as to Obviously delay involves Additionally, considerations different from those relat- the societal in interests a pre-trial delay. speedy directly implicated ed to The alteration of trial are less in post-conviction the defendant’s status from accused and the society’s context. From view, presumed guilty awaiting right point speedy innocent to to a trial significant change just sentence is a which serves to insure that a result has been inability pro- must taken in “The into account the bal- achieved. courts to ancing guilt prompt process. Once has been es- vide a trial has contributed to a large backlog in the first instance the balance of cases in courts tablished urban which, among things, between the interests of the individual other enables defend- negotiate effectively pleas society proportionate- and those of shift ants to more ly- guilty to lesser offenses and otherwise addition, manipulate system. per- noted, major As the court Perez periods lengthy sons released on bond underlying considerations the constitution- awaiting opportunity to com- trial have an right speedy may grouped al trial crimes____ Moreover, longer mit other categories: into interests and two societal trial, awaiting an accused is free the more interests of the individual defendants. For tempting opportunity jump becomes individual, lengthy pre-trial the accused escape.” Barker, 407 U.S. at 519- bail and because, delay impinges upon rights his 20, 92 S.Ct. at 2186-87. trial, if he is prior not incarcerated pre-trial of the indi- delay forces him to un- As is the case with interests “liv[e] defendants, anxiety, suspicion, der a cloud of and often vidual the societal interests pre-trial hostility.” speedy stronger are in the Wingo, Barker v. a trial they post-conviction. are 92 S.Ct. 33 L.Ed.2d 101 context than (1972). Post-conviction, society longer needs to disruption of an individual’s trial, in the awaiting especially life while when fear that will result criminal incarceration, subjected pre-trial justice system’s being deprived op- of the will usually spent portunity appropriate pun- to mete out an be substantial. “The time Likewise, awaiting impact post-conviction in the jail trial has a detrimental ishment. context, fears an accused indi- on the individual. It often means loss of a societal life; justice by job; disrupts enforces will be able to thwart family and it vidual manipulating delay advantage, his are idleness. offer little or no recre- jails Most largely eliminated. programs. ational or rehabilitative Additionally, incarceration; (2) the societal interest in limit- minimizing anxiety and ing possibility accused; that a concern defense has been limiting impaired by lengthy delay, although ap- possibility a that the defense will be plicable pre-trial post-con- impaired____ both settings, greater is a much viction interest ofMost those interests diminish or dis- pre-trial long delays in a context.6 With appear altogether once there has been a pre-trial, may disappear, witnesses their rights conviction. Because the society fade, may memories and other evidence proportionately increase, the prejudice Although post-conviction be lost. de- by the defendant claimed must be sub- lays problems can result in similar if an stantial and demonstrable. appeal is filed and it is determined an Perez, (citations omitted). 793 F.2d at 256 evidentiary hearing required, is the individ- Merrival, See also United States v. already ual has presump- who received a (8th Cir.1979) F.2d (appellant must tively fair trial has suffered far less hard- show before court can find his ship pre-trial than the individual whose right to speedy trial by is violated sen rights prejudiced having have been while tencing delay); Campbell, United States v. guilt adjudicated in the first instance. (5th Cir.1976), 531 F.2d cert. 1335-36 denied,

Therefore, whenever the four factors U.S. Supreme (1977) (crucial Bark- enumerated Court in L.Ed.2d 121 question in de Wingo, er v. pre- termining a case which concerned whether sentencing delay result trial issues, speedy ed in applied right have been violation of speedy trial is post-conviction context, prejudice resulted); whether Juarez- they have actual States, Casares v. United applied recognition given been to this 496 F.2d (5th Cir.1974) (violation changed change balance of interests. This through speedy trial has greatly manifested occurred when there increased has emphasis determining unreasonable prejudice, if Bra any, Indeed, prejudice); resulted in suffered defendant. dy Superintendent, Anne Arundel polestar is the any post-convic- Center, Detention tion trial analysis. (4th Cir.1971) 1310-11 (eight year sentenc showing

While a prejudice may of not be ing delay had not resulted in sufficient absolutely necessary in order to find a prejudice release). to warrant violation, Sixth Amendment we have Therefore, great reluctance to as I speedy find a understand the trial settled deprivation jurisprudence prejudice. where there is no of the various circuits that especially post-conviction special problem This is considered the ap- true of Wingo speedy Barker v. fact, plying the might situation. In it trial be said that analysis post-conviction violation in a once a defendant set- has been convicted it (1) ting: sup- alone is insufficient to would be the rarest of circumstances in port finding violation; of constitutional right which the speedy to a trial could be (2) prejudice the factor of infringed becomes central showing without a prejudice. of to inquiry; the the Moreover, proof burden to necessity the showing of sub- is on the defendant prejudice.7 to establish prejudice stantial would dominate the four-part balancing test. This is so be- III. cause of the traditional interests the speedy guarantee designed trial is pro- assume, to Finally, even if I were to as does (1) prevention tect: oppressive of pretrial the majority, that Burkett met has his bur- MacDonald, trial, lesser, In United States v. 456 U.S. to reduce the but nevertheless sub- stantial, (1982), impairment liberty imposed Supreme S.Ct. 71 L.Ed.2d 696 of the on an bail, accused while released on and to shorten Court noted that the Due Process Clause better disruption by the of life caused arrest and the against protects prejudice by the caused the presence charges.” of unresolved criminal Id. passage Speedy mere of time than does the Trial 102 S.Ct. at 1502. Clause. Id. at 102 S.Ct. at 1502. "The guarantee speedy designed trial is to minimize see, proof, e.g., On burden of v. Juarez-Casares possibility lengthy prior the of incarceration to States, (5th Cir.1974). United 496 F.2d tied establishing prejudice, discharge nevertheless to as a den of matter of law as a Indeed, result of leap delay.8 to conclusion that I the would not if were given consideration charges proper reme- be the is the the dismissal of “anxiety uncertainty” by discussed acknowledges the majority itself that dy. The magistrate, considerations, those in the speedy trial has been when the post-conviction context of delay, do not violated, only prejudice of violation discharge warrant as a matter of law. See at 1220 Maj.Op., (citing must be rectified. Perez, (“the anxiety at 257 F.2d of an Judicial Circuit Court Braden v. 30th equated accused is not be for constitutional U.S. S.Ct. Kentucky, 410 purposes anxiety with suffered one who (1973)) (“the at 1221 35 L.Ed.2d 443 & convicted, is jail, unquestionably going prejudice remedy be must sentence, waiting serve a and only remedy can rectify to retrial no lesser if be”). learn long how sentence will ”) (empha- prejudice defendant majority appears to believe added). sis when faced awith in an substantial holding clear lesser Despite this rights, appro individual’s isit appropriate, majority remedies priate for this court to address unresolved preju- to consider has refused whether concerning factual issues both dice suffered Burkett —a remedy and the proper any prejudice majority assumes but which has which the my view, by holding that is found. In so by a lesser not been found—could be cured case, majority usurped has charges. remedy than dismissal of district court’s traditional role fact-find because, undoubtedly in the This is absence er. See States Campbell, United finding impos- it any prejudice, is real 1333, 1336(5th Cir.1976), denied, F.2d cert. specific require what needs sible to know S.Ct. L.Ed.2d remediation. (1977) (where explicit finding preju situations, might some factual made, dice has been remand to district appropriate impose for the district court court is appropriate). Similarly, prej once statutory punishment, minimum rather found, udice has been it is the district court discharge. Brady, than order which should decide what action remedial (court any prej- at 1311 cannot assume required. sentencing delay udice resulted when expedi- majority’s While the desire for an statutory punishment minimum was im- tious resolution this matter is under- acknowledge posed). Although I that the County’s light long of Blair standable remediation decision is for district court inaction, invoked, whereby procedure us, just I and not for cannot that an believe departed majority has from role as its (who individual has such sought find crimes, including convicted of serious ter- impose facts as to and to reme- threats, theft, burglary, corruption roristic dies, unprecedented. Codispoti In minors, receiving of property, and stolen Howard, (3d Cir.1978), 589 F.2d this prejudice, and whose as the actual record with was confronted an reveals, incarcerated, being is limited to prisoner waiting a who been twelve charges, on these but on related unassaila- years for the state court to rule on his convictions, 2, supra) Upon determining trial. ble see note is enti- motion for a new charges hung rape, recklessly In Action No. was was of Criminal Burkett con- on the theft, burglary, receiving prop- of stolen endangering, victed unlawful and restraint. threats, erty, corruption terroristic and mi- In Criminal No. Burkett was con- Action acquitted nors. He was of indecent assault and assault, aggravated rape, victed of terroristic hung exposure. jury indecent charges was threats, assault, exposure, un- indecent indecent rape recklessly endangering. and restraint, endangering. recklessly lawful In Action No. Criminal Burkett was con- In No. was con- Criminal Action theft, burglary, receiving prop- victed of stolen burglary, attempted rape, recklessly victed of erty, acquitted and terroristic threats. He threats, assault, endangering, simple terroristic assault, exposure, of indecent indecent and in- and harassment. voluntary jury deviate sexual intercourse. The effectively appropriate remedy exhausted Consideration of the Codispoti had remedies, appropri- important state even more when it is available becomes the case to guidelines, that, ate we remanded recognized judicial due to a loss of evidentiary hearing court for an the district manpower, may this court soon be inundat remedy. delay and issues of on the many from Blair ed with similar cases Codispoti is an ex- disposition ordered County. Cunning See Schandelmeier v. appel- appropriate exercise of emplar of the (3d ham, Cir.1986). 54-55 In disposition: late review deed, in Penn there be other counties us shows no valid the record before ... sylvania delays where similar why the state court has explanation as I do not think that have occurred. years dispose waited almost twelve court should be the instrument for declar Presumptively such post-trial motion. a ing prisoners or dis wholesale releases impel consider the should us to charges of convictionswithout the essential prisoner’s petition unless it can be shown being inquiry made as whether af appeal or some that he has waived his prisoner prejudiced. fected Cf. taken extraordinary occurrence has (3d Pernsley, Harris v. 820 F.2d 592 Cir. place. 1987) (Garth, J., dissenting). therefore remand this case to We will I imply I do not mean to that believe that evidentiary the district court for an hear- prisoner loses his constitutional ing why petitioner’s to determine speedy trial because the state courts are disposed new trial motion has not been urging I overburdened. am not that Burk- hearing proof of. The burden of at this relief, appropri- providing ett be denied it is respondent, James shall rest with Rather, only I ate. maintain both recommend that the evi- Howard. We reasons, prudential jurisprudential an hearing by the dentiary be conducted hearing held to deter- evidentiary must be magistrate. trial court and not actually mine whether Burkett has suf- if It is further ordered that the trial fered sufficient to warrant dis- court concludes that the is inexcus- able, missal of his conviction Criminal Actions it should then determine whether Codispo- errors at 140 and 141. there were committed Nos.

ti’s trial which were a constitutional If dimension. there were constitutional IV. violations, the court should further deter- respect majority’s than with Other mine whether a new trial should be held disposition of Burkett’s conviction under passage of time or whether due to the join I Criminal Actions Nos. charges must be dismissed. majority’s opinion. (footnote omitted). Indeed, at 142 Id. under Nos. As to Burkett's conviction when, case, delay is in as in the instant 141, majority dispute does not 140 and way attributable to or inaction post-conviction speedy that a the fact court, district a remand is the federal in the of a cannot result dismissal response.9 violation permissible post-conviction speedy prisoner support in a trial con- of its determination to strong showing prejudice by evidentiary text without a Burkett’s conviction without hearing dice, preju- prisoner. as to Burkett suffered It is evident that the Assistant whether Attorney majority representing at relies on a statement made District argument by representing prejudice. oral counsel time addressed the issue of Second, "might ap- County, to the effect that the court that we can abdicate to I do not think dismiss, discharge propriately judicial deciding [decide] counsel our function out, years." Maj.Op., a half at 1226 n. pointed after five and implementing As I have the law. 41. post-conviction in a alone is sufficient setting a constitutional violation. to constitute suggest majority’s reliance is mis- I that the text, supra. See discussion always greeted placed. conces- We have not shown, Prejudice fact must be and the mere being Beyond dispositive. that how- sions counsel, argument, ever, oral in the throes of an believe that this concession can I do not First, recognize prevailing jurisprudence, does not given there is no credit for two reasons. ignore authority discharge mean that we too can it. does not that exists which would prisoner state conviction unless the valid demonstrating

has carried his burden of discharge sufficient to warrant

his conviction. Maj.Op., 1223n. 36.

The record this case does not demon- alleged

strate that Burkett has even color- prejudice,

able let alone met his burden of Thus,

demonstrating I it. believe that it court,

should the district in the first

instance, whom Burkett must dem- before carry

onstrate sufficient establishing

burden of a constitutional vio-

lation and sufficient to remedy warrant a discharge.

I therefore dissent from so much of the

majority’s decision which directs the dis-

trict court to issue a writ which would

discharge Burkett’s conviction under Crimi-

nal Actions Nos. 140 and 141.10

ALBERTA GAS LIMITED CHEMICALS Chemicals,

and Alberta Gas

Incorporated, Appellants,

E.I. DU DE PONT AND NEMOURS COMPANY, Holdings, Du Pont

Inc., and Conoco Inc.

No. 86-5662.

United States Appeals, Court of

Third Circuit.

Argued Feb. Aug.

Decided

Rehearing and Rehearing In Banc Sept. 10,

Denied 10. I process have not addressed remedy the due discus- tion of a lesser ready than the al- majority opinion (normal sion that the Maj.Op., contains. I am ordered. See at 1222 puzzled by majority’s remedy process process somewhat discussion, due a due violation is not dis- charge). maj.op., at 1220-1222 & majority However, inasmuch as the has held majority because if the had remanded to the speedy court, do, Sixth Amendment urged trial violation has district as I have it to then of occurred, Burkett’s conviction appropriate must be dis- course it would have been for the charged. appear superfluous It would therefore district court to consider both the Sixth Amend- doctrine, process to discuss due where the ment trial and the Fifth Amendment due analysis imposi- process result of such an would be the claims.

Case Details

Case Name: Wayne Paul Burkett v. Richard Cunningham, Warden

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 31, 1987

Citation: 826 F.2d 1208

Docket Number: 86-3074, 86-3121

Court Abbreviation: 3rd Cir.