Crawford filed a § 440.10 motion on June 26, 1997, as he claims,
but it has not been adjudicated because somewhere in the process
the motion papers, along with the rest of the case file, were
lost within the trial court. If so, the tolling period is still
in effect and Crawford's § 2254 petition is timely.
The State anticipated this possibility as well, and suggests
that if Crawford filed a § 440.10 motion that is still pending,
then the instant § 2254 petition must be dismissed for failure to
exhaust. According to the State's theory, for Crawford to
properly exhaust, he must return to state court and either seek a
writ of mandamus to compel a decision on his motion, or resubmit
his § 440.10 motion to the trial court.
A habeas petition may not be granted to a state prisoner unless
he has exhausted state remedies, or no state corrective procedure
exists, or there exist "circumstances rendering such process
ineffective to protect the rights of the prisoner."
28 U.S.C. § 2254(b). There is no dispute that most of Crawford's claims here
were not raised in the state appellate courts. Under the
exhaustion doctrine, Crawford would typically be required to
exhaust the claims in state court collaterally by way of a §
When a prisoner's diligent efforts to exhaust in the state
court have been unduly frustrated, however, the prisoner need not
take additional steps in the state court before he may be heard
in the federal courts. See Brooks v. Jones, 875 F.2d 30, 31 (2d
Cir. 1989). Moreover, inordinate delay in concluding
post-judgment criminal proceedings may preclude a state from
relying on the exhaustion requirement to defeat federal review.
See Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976)
citing St. Jules v. Beto, 462 F.2d 1365, 1366 (5th Cir. 1972)
(per curiam) (questioning 17 month delay in state habeas corpus
proceedings); cf. Cody v. Henderson, 936 F.2d 715, 718 (2d Cir.
1991) ("[S]ubstantial delay in the state criminal appeal process
is a sufficient ground to justify the exercise of federal habeas
jurisdiction."). While the Second Circuit has not "define[d]
precisely, a specific interval of time after which a habeas
petition based on delay . . . would excuse the exhaustion
requirement," it has specifically counseled that "[t]he doctrine
of exhaustion does not require a prisoner to wait six years . . .
or even three or four years before enlisting federal aid. . . ."
Simmons v. Reynolds, 898 F.2d 865, 870 (2d Cir. 1990)
(exhaustion requirement waived where a six-year delay in a
prisoner's appeal occurred and his family's effort to obtain new
counsel had been futile); accord Diaz v. Henderson,
905 F.2d 652, 654 (2d Cir. 1990) ("habeas petitions . . . need to be
brought as soon as the appellate delay becomes unreasonable").
Here, Crawford made several unavailing inquiries about his §
440.10 motion; and it has now been over three years since it was
filed. It is evident from the record that no decision on the
motion is forthcoming. After such extensive delay and Crawford's
repeated efforts to resolve matters before the state court, the
State may no longer rely on Crawford's failure to exhaust as a
defense to the petition.
CONCLUSION AND ORDER
Accordingly, the Court holds that Crawford's petition is
neither time-barred nor precluded for failure to exhaust state
remedies. It is therefore
ORDERED that the Respondent's motion to dismiss is denied; and
it is further
ORDERED that the Respondent shall answer the Petition within
thirty (30) days of the date of receipt of this Order; and shall
submit transcripts of all proceedings and any briefs submitted on
appeal; and it is further
ORDERED that Petitioner's time to reply to the Respondent's
answer shall be
forty-five (45) days after the receipt of the Respondent's