The opinion of the court was delivered by: McLAUGHLIN, District Judge.
Petitioner seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons discussed below, the petition is
On July 25, 1985, two police officers spotted petitioner leaving a
renovated building carrying pipes to a truck parked across the street. It
soon became apparent, at least to the officers, that petitioner was
stealing the pipes. Petitioner was arrested at the scene. Following a
jury trial on June 17, 1986 in New York Supreme Court, Kings County,
petitioner was convicted of burglary in the first degree. N.Y.Penal Law
§ 140.30 (McKinney 1988). He was sentenced as a second felony
offender to a term of two and one-half to five years imprisonment.
Because the sole issue on federal habeas corpus review is appellate delay
in the state system, a cataloguing of dates is inescapable.
On June 18, 1986, petitioner filed a notice of appeal in the Appellate
Division. In September 1986, the court appointed Legal Aid as appellate
counsel but, because of a conflict of interest, Legal Aid sought to be
relieved in December 1986. In March 1987, the court appointed Howard
Schwartz as substitute counsel.
Problems with appellate counsel, however, did not end there. While Mr.
Schwartz endeavored to prepare an appellate brief for submission,
petitioner filed pro se letters for information and permission to file an
additional brief. Perplexed by pro se letters and delays in filing the
appellate brief, the Appellate Division wrote to Mr. Schwartz inquiring
about the status of petitioner's brief. Receiving no response, the Chief
Clerk again wrote to Mr. Schwartz in February 1988. On February 17,
1988, Mr. Schwartz responded that he would file the petitioner's brief by
March 17, 1988. After further delays, Mr. Schwartz finally filed a brief
on petitioner's behalf on April 19, 1988.
In May of 1988, petitioner again requested permission to file a pro se
supplemental brief and asked for the scheduled date of his oral
argument. The Appellate Division notified petitioner that scheduling
depended upon his filing of the pro se supplemental brief. On July 7,
1988, the Appellate Division scheduled October 2, 1988, as the due date
for petitioner's supplemental brief; the district attorney had until
December 21, 1988 to respond. The People filed their brief on that date
and oral argument was set for February 1, 1989. The judgment of
conviction was unanimously affirmed on March 20, 1989. People v.
Sinatra, 148 A.D.2d 646, 540 N.Y.S.2d 201 (2d Dep't 1989).
The instant petition for habeas corpus was originally filed in May
1988, prior to the completion of petitioner's direct appeal in the state
court.*fn1 At the time of filing, the petition listed seven separate
grounds for habeas corpus relief. To accommodate petitioner, this Court
granted a request for counsel on the habeas corpus petition on July 20,
1988. Subsequently, counsel for petitioner informed this Court that the
sole issue raised by the habeas petition, as amended, was the claim that
petitioner was denied his right to a speedy appeal in contravention of
Due process does not mandate that a state provide a means to appeal a
criminal conviction. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308,
3312, 77 L.Ed.2d 987 (1983); Griffin v. Illinois, 351 U.S. 12, 18, 76
S.Ct. 585, 590, 100 L.Ed. 891 (1956). When a state provides that right,
however, it must ensure that it is properly enforced, accommodating all
aspects of due process and equal protection. Griffin, 351 U.S. at 18, 76
S.Ct. at 590; Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir. 1990).
Petitioner contends that appellate delay violated his right to
due process. I am not the first to observe that appellate
delay has become a blight on the New York Criminal Justice
system. See Wheeler v. Kelley, 639 F. Supp. 1374, 1378
(E.D.N.Y.), aff'd, 811 F.2d 133 (2nd Cir. 1987). Although no
bright-line has yet evolved to demark the point at which delay is
no longer constitutionally tolerable, the Second Circuit has
recently enumerated all the factors that enter the calculus,
including: (1) the length of the delay; (2) the reason for the
delay; (3) the diligence of petitioner in attempting to perfect
his appeal; and (4) the prejudice to petitioner arising from the
delay. Simmons, 898 F.2d at 868 (citing Barker v. Wingo,
407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972)); Brooks v.
Jones, 875 F.2d 30, 31 (2d Cir. 1989). To those four standard
criteria, the Second Circuit has added a fifth factor: whether
and how soon the State will decide petitioner's appeal. Brooks,
875 F.2d at 32; Wheeler v. Kelly, 639 F. Supp. 1374, 1381
(E.D.N.Y.), aff'd, 811 F.2d 133 (2d Cir. 1987) (federal-state
comity is a fifth consideration under Barker). Moreover, "[i]n
determining whether a delay of a prisoner's appeal violates due
process . . . no one factor is dispositive and all are to be
considered together with the relevant circumstances." Simmons,
898 F.2d at 868.
Appellate delay was one of the original grounds set forth in
petitioner's May 1988 motion for a writ of habeas corpus. The essential
claim was that appointed counsel had failed to submit an appellate
brief. The record is now clear that counsel had actually submitted a
brief on April 19, 1988. Respondent's Affidavit at 6. In any event, the
delay at that point was one year and ten months from the filing of
petitioner's notice of appeal.*fn2
As already mentioned, further scheduling delays resulted, but these
later delays were, in part, to accommodate petitioner's strongly
expressed desire to file a pro se supplemental brief. When the appeal was
finally decided on March 20, 1989, the total time ...