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June 27, 1990


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 denied.


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.


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.

A. Length of Delay

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 ...

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