specified time in order to cease its due process violation." 947 F.2d at 1008-09. Prejudice to the appeal itself is not a necessary precursor to issuance of a conditional writ because, should the writ be realized, its principal justification would be "that the state court has purposely allowed the continuation of a due process violation after the district court gave it notice that failure to provide a prompt appeal would result in invalidation of its judgment of conviction." See Cody, 936 F.2d at 720-21.
The present case is not unlike that presented in Wheeler v. Kelly, 639 F. Supp. 1374 (E.D.N.Y. 1986), aff'd, 811 F.2d 133 (2d Cir. 1987). The petitioner in Wheeler sought a writ of habeas corpus, five years after his conviction, on the ground that the state courts had not yet rendered a decision on his appeal. 639 F. Supp. at 1375-77. Judge Wexler granted the writ conditionally and ordered that petitioner be retried unless the Appellate Division decided petitioner's appeal within less than three months of Judge Wexler's decision. Id. at 1382. Although the Appellate Division ultimately affirmed the conviction within the prescribed period, on petitioner's appeal of Judge Wexler's decision (on the grounds that the retrial should have been granted outright instead of conditionally), the Court of Appeals affirmed the remedy provided by Judge Wexler.
In this case, the State of New York has acted to limit the possibility that Einaugler could serve his sentence in full while the appeal languished. Cf. Muwwakkil v. Hoke, No. 90-CV-2062 (E.D.N.Y. Nov. 19, 1990) (petitioner released on bond pending determination of appeal), aff'd, 968 F.2d 284 (2d Cir.), cert. denied, 113 S. Ct. 664 (1992). Under the unusual circumstances here, however, petitioner is faced with significant collateral consequences as a result of his conviction. While he will be paid for the services he renders to Medicare and Medicaid patients if he is successful on appeal, in the meantime he is being deprived of his livelihood. It is, therefore, necessary to determine whether petitioner has suffered the kind of delay that would justify a conditional writ.
Such delay is clearly present here. Although the Constitution does not afford a defendant the right to appeal a conviction, once provision is made for the right to appeal, such an appeal must comport with the constitutional demands of due process and equal protection of the law. Evitts v. Lucey, 469 U.S. 387, 393, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985). Among the protections afforded by the due process clause is "the right to a reasonably timely appeal." Cody, 936 F.2d at 719.
To assess the "reasonableness" of the time taken to adjudicate a habeas petitioner's direct criminal appeal, federal courts have applied the four-factor test devised by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972) to determine whether the Sixth Amendment right to speedy trial has been violated. Specifically, the following factors must be balanced: 1) the length of the delay; 2) the justification for the delay; 3) the assertion of the right to a timely appeal; and 4) the prejudice occasioned by the delay. See Simmons, 898 F.2d at 868 (citing Barker, 407 U.S. at 530-33).
While the projected delay in this case is not as extreme as some of the previous cases in which appellate delay has given rise to a due process violation, see, e.g., Cody, 936 F.2d at 719 (nine to ten years); Simmons, 898 F.2d at 867 (six years), it is within the period of time considered by the courts to be indicative of a violation of due process. See, e.g., Burkett v. Fulcomer, 951 F.2d 1431, 1445-46 (3d Cir. 1991) (eighteen-month delay between sentencing and appellate decision constituted due process violation), cert. denied, 112 S. Ct. 3055 (1992); see also Harris, 15 F.3d at 1561 (holding two-year delay created rebuttable presumption of due process violation and citing cases in which delays of seventeen- to eighteen-months either "gave rise to" or "warranted inquiry" into possible due process violation); Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (noting that while "four years is an alarming amount of time" for appellate delay, "there is no talismanic number of years or months, after which due process is automatically violated").
Moreover, no explanation has been provided by respondent for a delay of the kind that has been commonplace. See, e.g., Stubbs v. Leonardo, 973 F.2d 167, 169 (2d Cir. 1992) ("we remain concerned about the pattern of state court appellate delays in criminal cases"); Simmons, 898 F.2d at 869 ("The problem of excessive delay of appeals from state convictions has plagued state prisoners, state courts, and federal courts too long."); Mathis v. Hood ("Mathis I"), 851 F.2d 612, 615 (2d Cir. 1988) ("There is a crisis in the First and Second Departments. . . . [due to] extraordinary delays which infect the system. . . ."
Nor is this a case where petitioner has sat on his hands. Einaugler has been vigilant in asserting his right to a timely appeal. See Mathis v. Hood ("Mathis II"), 937 F.2d 790, 794 (2d Cir. 1991) ("If the defendant does not act quickly to require that his appeal be heard, he cannot later argue that he is entitled to release because the state court took too long to hear his appeal."). He has filed three times for an expedited hearing, all to no avail. Indeed, respondent may have contributed to the delay by failing to support vigorously petitioner's request that the case be calendared for argument expeditiously. The Special Prosecutor took no position on the first request for an expedited hearing. While he joined conditionally in Einaugler's second request, he not only resumed his posture of indifference to the third request, but he actually urged, unsuccessfully, that the Appellate Division "preclude [Einaugler] from making any further applications of this nature in this case." Affirmation of James D. Harmon, Jr., July 8, 1994 at P 6 (citing Affidavit of Donald H. Zuckerman, March 30, 1994 at 2, 4).
The prejudice to petitioner from the delay is apparent. Petitioner, a physician, has been prosecuted and convicted for conduct arising out of his work. In formulating his sentence, however, the sentencing court -- likely influenced by the several patients who testified on Einaugler's behalf -- made it possible for petitioner to continue to practice medicine by limiting his confinement to 52 consecutive weekends in jail. Einaugler's conviction has, nevertheless, resulted in his exclusion from Medicaid for the past year, withdrawal of his hospital and nursing home medical privileges at several institutions, continuing harm to his professional reputation, and exclusion for the next five years from both Medicare and Medicaid. Petition, P 41(a). As Einaugler put it in his affidavit in support of his motion for an expedited appeal:
Exclusion from both Medicaid and Medicare will cause me to cease practicing medicine. I will be forced to close my office and to lay off two employees who depend on me for their livelihood. I will be required to find work in another field in order to support my family. For someone of my age, the prospects of doing so are dismal at best.
Affidavit of Gerald Einaugler, March 18, 1994 at P 6, Ex. C to Affirmation of James D. Harmon, Jr., July 8, 1994. While research has revealed no similarly situated habeas corpus petitioner, under these unusual circumstances Einaugler is subject to an imposition of a burden that the right to a speedy appeal was designed to avert. Cf. Barker, 407 U.S. at 532 (noting that prejudice from pretrial delay includes incarceration that "often means loss of a job"). Moreover, it is also safe to assume that Einaugler has been burdened with the kind of "concern and anxiety" that is only prolonged by further delay.
See Yourdon v. Kelly, 769 F. Supp. 112, 115 (W.D.N.Y. 1991) (assuming anxiety of petitioner based upon circumstances of delay), aff'd, 969 F.2d 1042 (2d Cir. 1992) (table).
In light of the foregoing circumstances, I find that New York State's procedures are "ineffective to protect the rights of the [petitioner]." 28 U.S.C. § 2254(b). Accordingly, pursuant to my authority to dispose of this matter "as law and justice require," 28 U.S.C. § 2243 (1988), it is ordered that if the Appellate Division does not hear and decide the appeal in this case before December 31, 1994, the petition will be granted and the conviction will be set aside. In addition, my order of June 24, 1994, which granted minimal relief not inconsistent with 42 U.S.C. § 1320a-7(a), to which there was no serious objection, shall remain in effect until December 31, 1994. The remaining relief requested by Einaugler in his action for injunctive and other relief is denied.
Edward R. Korman
United States District Judge
Dated: Brooklyn, New York
August 20, 1994