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
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
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).
As to the first Barker factor — length of delay — the
petitioner was incarcerated for nearly four years between the
filing of the notice of appeal and its final resolution. While
there is no set formula for determining whether a particular
delay is excessive — see e.g., Wheeler, supra, at 1378 —, it
is clear that this case was neither so complicated nor so
complex that a four-year delay was justified. Once perfected,
the appeal was heard and resolved within four months.
Accordingly, this Court finds the four-year delay to be
unreasonable. See, e.g., Simmons, supra; Wheeler, supra.
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
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 ...