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July 26, 1991


The opinion of the court was delivered by: Elfvin, District Judge.


Presently before the Court is the petitioner's prayer for a writ of habeas corpus in a proceeding brought pursuant to 28 U.S.C. § 2254. The Petition is bottomed on claimed excessive delay experienced by the petitioner awaiting the perfection and the resolution of his appeal from a state court conviction. For the reasons set forth below, this Court will deny the Petition. However, because this Court also finds that the petitioner probably has been deprived of certain constitutionally-secured rights, he will be permitted to recast this proceeding via a complaint pursuant to 42 U.S.C. § 1983 for damages arising out of claimed violations to his civil rights.

The Petition was filed with this Court July 11, 1988. By Order dated July 13, 1988 the matter was referred to Magistrate Judge Edmund F. Maxwell for review and a report containing findings of fact, conclusions of law and a proposed disposition of the case. See 28 U.S.C. § 636(b)(1)(B). The facts, as set forth by the Magistrate Judge in his January 22, 1991 Report and Recommendation ("R & R") are summarized below.

On March 6, 1985, following a jury trial in the Supreme Court of the State of New York, Erie County, the petitioner was convicted of first-degree rape, first-degree sodomy and first-degree sexual abuse. He was sentenced to two terms of six and two-thirds to twenty years and one term of two to six years, all to run concurrently. On May 8, 1985 a notice of appeal was filed and by an order dated September 18, 1985 the Legal Aid Bureau of Buffalo, Inc. ("the Bureau") was assigned to represent the petitioner. On March 24, 1986, in response to an inquiry by the petitioner regarding the status of his appeal, a staff attorney for the Bureau informed plaintiff that, due to the Bureau's backlog of at least two years on appeals, the petitioner's case would not be submitted to the Appellate Division until at least November 1987. On November 18, 1987 the petitioner filed a motion for summary reversal in the Appellate Division, based on the delay in his appeal. On January 29, 1988 the Appellate Division denied the petitioner's motion.

The petitioner commenced the instant habeas corpus proceeding July 11, 1988 claiming denial of his right to appeal and denial of effective assistance of appellate counsel. On August 23, 1988 counsel was assigned to represent the petitioner in this action. On December 23, 1988 the petitioner's appellate brief was filed by the Bureau and, by Order and Memorandum dated April 14, 1989, the petitioner's state court conviction was unanimously affirmed 149 A.D.2d 974, 543 N.Y.S.2d 347. Application for leave to appeal to the New York Court of Appeals was denied June 28, 1989.

By Order dated March 23, 1990 the Magistrate Judge determined that the instant Petition was not moot and directed that the merits of the claim be addressed. The Magistrate Judge subsequently issued his R & R addressing the merits of the petitioner's claims. As set forth below, this Court agrees with the Magistrate Judge's conclusions and affirms the R & R in its entirety.

The issue sub judice is whether the extensive delay in the petitioner's appeal violated his constitutional rights to due process and to effective assistance of counsel.*fn1

Although the respondent raised a number of defenses in his answer none is viable. As stated hereinabove, this action was not rendered moot due to the perfection and resolution of the petitioner's appeal. See Mathis v. Hood, 851 F.2d 612 (2d Cir. 1988). Also, the petitioner has not failed to join necessary party-defendants. See Billiteri v. United States Bd. of Parole, 541 F.2d 938 (2d Cir. 1976). Finally, it is clear that a federal habeas corpus proceeding is an appropriate vehicle for relief from a long-delayed appeal. See Simmons v. Reynolds ("Simmons"), 898 F.2d 865 (2d Cir. 1990). Thus, this Court will now turn to the merits of the petition.

In determining whether an appeal's delay rises to the level of a deprivation of constitutionally protected due process rights, the United States Court of Appeals for the Second Circuit has directed that the factors originally set forth in Barker v. Wingo ("Barker"), 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972), be utilized. See Simmons, supra. These factors are (1) the length of the delay, (2) the reason(s) for the delay, (3) the prisoner's assertions of his right, and (4) the prejudice to the prisoner from the delay. Such factors are to be balanced — weighing the conduct of both the prisoner and the state — and no single factor is either necessary or sufficient to a finding of a deprivation. See Barker, supra, at 533, 92 S.Ct. at 2193; Wheeler v. Kelly ("Wheeler"), 639 F. Supp. 1374, 1378 (E.D.N.Y. 1986), aff'd, 811 F.2d 133 (2d Cir. 1987).

The second Barker factor — the reason for the delay — reveals that the excessive delay was due almost entirely to the inaction of assigned counsel, as well as the seeming inattentiveness of the Appellate Division itself in addressing the problem. Although the notice of appeal and the motion to proceed in forma pauperis were timely filed, nearly four months passed prior to the appointment of counsel by the Appellate Division. Upon a later inquiry from the petitioner himself, assigned counsel frankly informed the petitioner that it would be another one and a half years before his appeal would be perfected. Given such a clear indication of what to expect, any failure by the petitioner to do more cannot be viewed critically.

These events are relevant to the third Barker factor — the prisoner's assertion of his rights. Although his inquiries were not many, the efforts made by him — including the filing of this action — clearly reveal that he did not waive his rights or otherwise contribute to the delay.

Finally, with respect to the fourth Barker factor — prejudice to the prisoner —, this Court finds that such a delay may have been prejudicial in creating an anxiety and a concern that one's appellate rights will be adversely affected. Whether the petitioner was prejudiced in the ultimate disposition of the appeal may not be knowable. While no evidence of prejudice to the appeal itself has been presented, it would not strike this Court as unusual that a four-year delay must profoundly worry an individual hopefully awaiting a successful outcome of his appeal. See Simmons v. Reynolds, 708 F. Supp. 505, 510 (E.D.N.Y. 1989), aff'd, Simmons, supra. Accordingly, this Court finds that the four-year delay well could have caused prejudice to the petitioner. See Simmons, supra, at 868.

Weighing the four Barker facts, this Court finds — in agreement with the Magistrate Judge — that the petitioner's due process rights were ...

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