Appeal from judgment of the United States District Court for the District of Connecticut, T. Emmet Clarie, Chief Judge, dismissing petition for writ of habeas corpus. Affirmed in part, remanded in part for proceedings consistent with this opinion.
Anderson, Feinberg and Mansfield, Circuit Judges. Mansfield, Circuit Judge (Concurring and Dissenting).
Jasper Roberson, a state prisoner, appeals from a judgment of the United States District of Connecticut, T. Emmet Clarie, Chief Judge, dismissing his petition for a writ of habeas corpus. Appellant's principal claims are that his constitutional rights were violated because his probation was revoked on the basis of other convictions then under appeal and because the state has unduly delayed the hearing of those appeals. For reasons stated below, we affirm the dismissal of the former claim and remand to the district court for consideration of the latter.
The chronological history of this case is complicated but essential to an understanding of the issues before us. In January 1970, appellant was convicted in a Connecticut state court of possession of heroin. He received a suspended sentence of two to five years imprisonment and was placed on probation. Shortly thereafter and while on probation, appellant was arrested and incarcerated on charges of robbery. These charges were tried separately: In June 1971, appellant was convicted of robbery and in October 1971, of robbery with violence. Concurrent sentences of two to four and four to eight years imprisonment were imposed. What happened next is the basis for appellant's first contention on this appeal. On October 8, 1971, a state court hearing was held to determine whether probation on the heroin offense should be revoked. The state relied primarily on a probation report detailing appellant's alleged involvement in the robberies and noting the fact of his June 1971 conviction. The state judge was also aware of the October conviction since he had just presided over the trial. When asked whether he agreed with the contents of the report, appellant responded through his counsel that the convictions were in the process of being appealed and that probation could not be revoked on the basis of such non-final convictions. The judge rejected this argument, reasoning that "the violation of probation is the conviction of any crime," and revoked Roberson's probation, ordering the term of imprisonment for the drug offense to be served consecutively to those for the robbery offenses. The Supreme Court of Connecticut affirmed the revocation of probation in a thorough opinion. 165 Conn. 73, 327 A.2d 556, 34 Conn. L.J. No. 51 p. 1 (1973).
Appellant then filed a petition for habeas corpus in the United States District Court for the District of Connecticut, alleging that it was a denial of due process for Connecticut to revoke his probation because of criminal convictions still pending on direct appeal. In September 1973, Judge Jon O. Newman dismissed the petition on the merits in an unreported memorandum.*fn1 Appellant took no appeal from this decision.
Shortly after the decision by Judge Newman, appellant filed in the district court a second habeas petition, which is the subject of this appeal.*fn2 This petition raised the same claim of unconstitutional revocation of probation as did the earlier one. Judge Clarie also rejected the argument on the merits. The second habeas petition alleged in addition that Roberson had been denied his right to appellate review of his robbery convictions because of the state's "lack of diligence" in defending the appeals. At the time, some two years had elapsed since the convictions on the robbery charges and Roberson's appeals were not yet close to the stage of being heard by the Connecticut Supreme Court. Moreover, maintained appellant, this delay was very largely the fault of the state. Under Connecticut practice, a party seeking appellate review of a criminal conviction after a jury trial must file with his appeal a request for findings by the trial court and a draft of proposed findings. Conn. Practice Book (CPB) § 629. This request must contain a statement of the questions of law sought to be reviewed; if evidentiary rulings or the charge to the jury are at issue, the draft finding must contain enough of the allegedly proven facts to show that the ruling or charge, if erroneous, was harmful. CPB § 630. The draft finding cannot be prepared until the party has obtained a transcript since CPB § 631 requires that the draft finding make appropriate references to the transcript. Transcripts are available only from the court reporters, who are employees of the state. Appellant's trial counsel ordered a transcript of the first robbery trial in August 1971 and of the second in November 1971. Yet the transcripts (totalling some 2,000 pages) were not delivered until December 1972, 16 and 13 months respectively after they were ordered.
Judge Clarie did not reach the merits of the claim of undue delay, holding instead that appellant had failed to exhaust his state remedies. CPB § 696 provides in relevant part:
If a party shall fail to defend against an appeal with proper diligence [the Supreme Court] may, on motion by any other party to the appeal or of its own motion, set aside in whole or in part the judgment under attack, with costs, and direct the entry of an appropriate final judgment by the trial court against the party guilty of the failure.
The judge ruled that this section offered Roberson "a plain, speedy, and efficient state court remedy" for the state's alleged lack of diligence in defending against his appeals. Since Roberson had made no motion under the section, the judge dismissed the petition for failure to exhaust. Appellant thereafter filed a notice of appeal and sought, and obtained, a certificate of probable cause.
After Judge Clarie's decision, appellant also returned to state court and made a motion under section 696 to set aside the robbery convictions. In January 1974, the Connecticut Supreme Court granted the motion with respect to the first conviction unless the state should file its counterfinding by January 22, 1974 and denied it with respect to the second. The state filed its counterfinding on January 14 and the first conviction remained in effect.
Meanwhile, appellant's trial counsel had filed the draft findings with respect to both robbery convictions in August 1973, eight months after receiving the transcripts. As noted above, the state submitted its counterfindings on the first conviction in January 1974, five months later, and the trial court released its findings in March. Apparently, the appeal from the first conviction will be heard at the October 1974 Term of the supreme court, by which time over three years will have passed since the judgment of conviction. As of the date of oral argument in this court, the state had not yet submitted its counterfindings on the second robbery ...