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.
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 between conviction and
appeal was approximately two and one-half years.
"The length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance."
Barker, 407 U.S. at 530, 92 S.Ct. at 2192. While there is, again, no per
se rule, precedent in this Circuit would support a conclusion that the
delay in this case is not "presumptively prejudicial." See e.g.,
Simmons, 898 F.2d 868 (six years is clearly excessive); Mathis v. Hood,
851 F.2d 612, 614 (2d Cir. 1988) (six years is "shocking"); Geames v.
Henderson, 725 F. Supp. 681 (E.D.N.Y. 1989) (three and one-half year
delay is unconstitutional). This Court concedes that the time lapse
between conviction and appeal is certainly substantial — substantial
enough to approach "presumptively prejudicial" — and, accordingly,
it warrants further inquiry into the other factors. Barker, 407 U.S. at
530, 92 S.Ct. at 2192.
B. Reason for Delay
In Simmons, the principal reason for delay was the state court's
failure to supervise its appointed attorneys and to monitor its own
calendar. 898 F.2d at 868. Similarly, the Mathis defendant had written a
number of unanswered letters to a succession of attorneys appointed as
appellate counsel. When Mathis requested that the Appellate Division look
into the delay, the court clerk simply forwarded the letter to the
attorney of record, who was already known to be unresponsive. 851 F.2d at
Here there was no such blatant calendar mismanagement. Each of
at least four pro se inquiries about submitting a supplemental
brief was promptly answered by the Appellate Division, as was
each inquiry into the status of assigned counsel. Respondent's
Affidavit at 3-5, 8-11. More importantly, the Appellate Division
acted to expedite the filing of petitioner's brief. In a
letter dated November 29, 1987, petitioner inquired into the
status of his appeal and why his brief had yet to be filed.
Within the next few months, the Appellate Division Clerk pursued
the matter through written correspondence with Mr. Schwartz. By
early March of 1988, it had become clear that counsel was being
less than diligent. In a letter dated March 8, 1988, the Clerk
warned counsel that if he did not perfect petitioner's appeal
quickly, he would be subject to disciplinary action. On April 19,
1988, counsel filed a brief, perfecting petitioner's appeal.
C. Petitioner's Efforts
Although petitioner cannot be faulted for the initial delay, a
substantial amount of the delay between the filing of the brief and the
ultimate resolution of the appeal can be attributed to him. Petitioner
took nearly four months to file his long requested supplemental brief,
knowing that oral argument could be scheduled only after his pro se
submission. Shortly thereafter, the district attorney responded and the
matter was then argued and decided within three months.
The record does not reflect, however, that petitioner was so lax in his
attempts to perfect his appeal as to waive his right to challenge
appellate delay. See Wheeler, 639 F. Supp. at 1380. Therefore, further
inquiry into all surrounding circumstances must be pursued. Id. at 1378.
D. Prejudice to Petitioner
In assessing any prejudice that may accrue to a petitioner through
appellate delay, courts consider factors which are analogous to those
used in assessing delays before trial, including: (1) prevention of
oppressive incarceration pending appeal; (2) minimization of anxiety and
concern while awaiting the outcome of the appeal; and (3) undercutting a
defendant's grounds for appeal, or his defenses in the case of a
retrial. Geames, 725 F. Supp. at 686. However, "[i]n a case involving a
delay on appeal, these concerns are less likely to prejudice a
defendant." Id.; Wheeler, 639 F. Supp. at 1380-81 (citing Cousart v.
Hammock, 580 F. Supp. 259 (E.D.N.Y.), aff'd, 745 F.2d 776 (2d Cir.
Reviewing the record in this case, the Court does not find any
appreciable prejudice to petitioner, certainly not enough to warrant
federal habeas corpus relief. Petitioner makes no claim that the outcome
of his appeal was affected by the delay, nor does he allege facts
— such as the unavailability of witnesses — to show fatal
harm to any available defenses. Additionally, since the judgment of
conviction was ultimately affirmed, People v. Sinatra, 148 A.D.2d 646,
540 N.Y.S.2d 201 (2d Dep't 1989), this Court cannot deem his period of
incarceration oppressive. Prejudice, therefore, could only result from
anxiety and concern over the outcome of his appeal, but the record does
not support such a conclusion.
E. Federal-State Comity
A final factor in considering appellate delay is how soon the State
will decide a pending appeal. Comity commands a presumption that a state
will act on an appeal, and that a federal court should stay its hand if
it would only hinder the appeal process. Wheeler, 639 F. Supp. at 1381.
Because the appeal has already been decided, further discussion at this
point is unnecessary. Simmons, 898 F.2d at 868 (Court found no error in
district court's conclusion that "disposition of the appeal while the
habeas petition was pending changed [petitioner's] custody from illegal
All factors having been weighed, the Court is convinced that the
appellate delay in this case, although regrettable, does not rise to a
deprivation of due process. Accordingly, the motion for a writ of habeas
corpus must be, and hereby is, denied.