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Burkett v. Cunningham

filed: July 10, 1987; As Amended July 21, 1987. .


On Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civil Nos. 85-1965 & 85-1966.

Sloviter, Becker and Garth, Circuit Judges. Garth, Circuit Judge, dissenting in part and concurring in part.

Author: Becker

BECKER, Circuit Judge.

These two habeas corpus appeals by Wayne Paul Burkett, arising out of three state court convictions, require us to determine whether a federal court, presented with post-conviction delay ranging from excessive to monumental, should not only deem state remedies exhausted, but also grant writs of habeas corpus on account of the delay. Each of the convictions took place in the Blair County, Pennsylvania, Court of Common Pleas, where the problem of delay seems endemic. See infra slip op. at 40-41 & n.48.

In No. 86-3074, we confront a delay of two years and four months between conviction and sentencing, plus several additional months of delay during the state appellate process. No. 86-3121 encompasses two separate convictions. In one, we face a three and one-half year delay between conviction and sentencing and a further, ongoing delay (approximately one year and nine months at this writing) in the commencement of the state appellate process because of the tardiness of the Blair County court system both in furnishing an opinion on post-verdict motions and sentencing and in transmitting the trial record to the Pennsylvania Superior Court. In the other, we confront an almost unbelievable situation: Burkett has yet to be sentenced, more than five and one-half years after trial and two years after a federal district court declared that Burkett's right to a speedy trial would be violated if he were not sentenced within 60 days.

As a preliminary procedural matter, we observe that in No. 86-3121 the district court used Federal Rule of Civil Procedure 60(b) to vacate and reenter its previous order of judgment, in effect extending the time for appeal, because Burkett, despite due diligence, did not learn of the entry of judgment until after expiration of the period for requesting an extension of time to appeal. Fed. R. App. P. 4(a)(5). Under the particular circumstances of the case, we hold that the district court had the power to vacate and reenter the final order.

We also must make important threshold legal determinations. First, does the Constitution's Speedy Trial clause apply through the sentencing phase of the prosecution? We conclude that it does. Second, does the Due Process clause protect against delays in appeals as of right? We also conclude that it does. For the reasons that follow, we will affirm the district court's dismissal for want of exhaustion in No. 86-3074. We will reverse the court's dismissal for want of exhaustion in No. 86-3121, and, on those claims concerning the case for which Burkett has been sentenced but his appeal hindered, we will remand for consideration of the merits of Burkett's constitutional claims, including the delay itself. That leaves for consideration the conviction for which Burkett has still not been sentenced for five and one-half years after verdict, two years of which follow the district court's order declaring that the Constitution required sentencing within 60 days, an order predicated on a finding of a speedy trial violation which was not challenged by the county. The violation having been established as law of the case, and reinforced by the continuing delay, and the county having conceded at oral argument that the only appropriate remedy appears to be dismissal, we will remand the case to the district court with instructions to grant the writ unconditionally and discharge Burkett from that conviction.


The factual matrix of these appeals lies in the procedural history of Burkett's criminal cases. That history is extremely involved, and resolution of these appeals requires that we set it forth in detail.

A. State Courts: Round I

Burkett was arrested on February 7, 1981 and charged in the Blair County Court of Common Pleas with the crimes later detailed in criminal actions Nos. 140 and 141 of 1981 ("140/141").*fn1 Six days later, he was charged with the crimes detailed in criminal action No. 161 of 1981 ("161").*fn2 On July 22, 1981 the prosecution moved under Pennsylvania Rule of Criminal Procedure 1100(c) to extend the 180-day deadline for commencing trial otherwise required under Rule 1100(a)(2). On October 7, 1981 the court, despite Burkett's objection and motion to dismiss, granted the prosecution's request.

In 140/141, Burkett was convicted on November 17, 1981 of some charges*fn3 and acquitted of others;*fn4 a mistrial was declared on the remaining counts when the jury hung.*fn5 On November 20, 1981, both sides consented to a continuance in 161. On January 20, 1982 Burkett was convicted in 161 on all counts.

Having filed timely post-verdict motions concerning both trials, Burkett was released on bail pending sentencing on February 24, 1982. After 48 days, on April 13, 1982, he was rearrested and charged with the crimes later detailed in criminal action No. 284 of 1982 ("284").*fn6 Burkett has been continuously incarcerated since this arrest.

On August 19, 1982 the court ordered the district attorney to show cause why transcripts of Burkett's trials should not be furnished to him at the court's expense. The record reflects no subsequent hearing or order on the matter. It appears that only transcripts for 161 were prepared at that time.

In 284, the prosecution requested and received several Rule 1100 continuances, beginning on October 1, 1982. Burkett filed motions to dismiss for lack of timely prosecution beginning on October 15, 1982. The court denied dismissal and granted further continuances on November 5 and December 29, 1982 and January 4, 1983. On January 28, 1983 Burkett was convicted of all felony and misdemeanor counts by a jury and on January 31, 1983 the court found him guilty of the charged summary offense. Burkett filed timely post-verdict motions.

At least by July 1983, Burkett was requesting trial transcripts of 140/141 and 284. App. 183. Transcripts for 284 were completed and filed in August 1983. The other transcripts were not prepared. No briefing or hearing was scheduled on Burkett's post-verdict motions in any of his cases, and under Pennsylvania law he could not be sentenced until the court had ruled on those motions.*fn7

On March 12, 1984, Burkett filed a petition for a writ of habeas corpus with the Blair County Court of Common Pleas, challenging his custody in all three cases on the basis of speedy trial and due process violations and because he had still not been sentenced. A hearing on this petition was held in October 1984, after which a briefing schedule was set for 161 and 284. When no ruling was forthcoming on the habeas petition, Burkett filed for relief on similar grounds in the Pennsylvania Superior Court on December 12, 1984.*fn8 Burkett's brief in 284 was filed on January 23, 1985.

Meanwhile, Burkett had also sought to raise the issue of counsel's ineffectiveness in order to preserve that issue for appeal.*fn9 He objected to proceeding with a hearing on his post-verdict motions in 284 on January 23, 1985, because his motion concerning ineffectiveness in that action, filed September 6, 1984, had yet to be resolved. The hearing was adjourned, and an ineffectiveness hearing was later scheduled for April 1, 1985. As of March 1985, Burkett's post-verdict motions in 161 and 284 had been briefed but not argued, and no briefing had been scheduled in 140/141 because no transcripts had been filed, even though Burkett had filed yet another motion to compel production of those transcripts on January 14, 1985.

B. Federal Courts: Round I

On March 28, 1985 Burkett filed a petition for writ of habeas corpus at W.D. Pa. Civ. No. 85-769, charging that the delay in sentencing in all of his cases violated his rights under the Speedy Trial clause. See App. at 154; Supp. App. at 3. We also construe the petition to allege a due process violation. The magistrate granted in forma pauperis status and ordered an answer on March 29, 1985. Blair County filed a timely answer, to which Burkett filed a response.

The magistrate filed a report and recommendation on May 15, 1985. Finding exhaustion excused because of inordinate delay, he discussed whether Burkett had established a speedy trial violation under the four-part test of Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). The magistrate, finding lengthy delay, noted Burkett's repeated requests to be sentenced and attributed no delay to him. The magistrate found prejudice -- that the delay had "caused some loss to the petitioner," see infra at 1223 n.36 -- and that "it would appear to be a fundamental denial of the constitutionally assured right to a speedy trial to delay ruling on post-trial motions far in excess of three years." Supp. App. 11. He reasoned, however, that "it would appear appropriate to withhold any action," id. at 12, based apparently on an order of the Blair County Court of Common Pleas that a hearing on post-trial motions in 284 be scheduled "for the earliest possible date consistent with the calendar of this Court." The magistrate therefore recommended with respect to all of Burkett's cases that the writ be denied "unless the Court of Common Pleas fails to dispose of the post-trial motions and impose any appropriate sentence within sixty (60) days." " Id.

The district court granted the parties ten days for the filing of objections to the report and recommendation of the magistrate, but no objections were filed and no extensions of time were sought. The district court adopted the magistrate's report and recommendation in full as its opinion on May 30, 1985, declaring that the Constitution permitted Blair County 60 further days from that date in which to sentence Burkett.*fn10 App. 154. Blair County did not appeal, but Burkett did. We denied Burkett a certificate of probable cause to appeal on August 14, 1985, "without prejudice to filing a new petition in the district court." App. 155.

C. State Courts: Round II

The Blair County court denied Burkett's state habeas petition (first filed March 12, 1984 as to all three convictions) on June 6, 1985. Having already denied his ineffectiveness motion in 284 on April 2, 1985,*fn11 the court proceeded to deny his post-verdict motions on May 8 and to sentence him on June 24, 1985. Burkett received consecutive sentences totaling 16 to 32 years, which according to the court was the maximum permitted under law.*fn12 The court filed an opinion with the sentencing order. Burkett's appeal was docketed in Superior Court at No. 974 Pgh 85.

In 161, post-verdict motions were denied on June 7, 1985. Burkett was sentenced on July 10, 1985, although the sentencing order was not filed until September 18, 1985. As a repeat offender, he received consecutive sentences totalling 22 to 44 years.*fn13 Burkett's appeal was docketed in Superior Court at No. 1089 Pgh 85. However, no opinion on post-verdict motions or sentencing was then filed,*fn14 without which filing the record could not be transmitted to Superior Court*fn15 and the appeal could not proceed.*fn16

In 140/141, the court attempted to compel the court reporter to produce the transcripts by entering orders on May 7, 1985 ("forthwith") and on August 21, 1985 ("on or before . . . August 30"). Despite the continuing lack of transcripts, post-verdict motions were heard on August 21, 1985. Despite the hearing, the court has yet to either rule on the motions or sentence Burkett.

D. The Instant Habeas Petition

Burkett filed the two instant habeas petitions on August 27, 1985. Civ. No. 85-1966 (referred to hereinafter as "No. 86-3074," its docket number on appeal sought release for the delay in 284 and also claimed that the federal court's May 30, 1985 order giving the Blair County court 60 days to sentence. Civ. No. 85-1965 ("No. 86-3121" on appeal) asserted similar claims concerning both 140/141 and 161.

In No. 86-3074, by orders dated September 19 and 20, 1985, the magistrate ordered a supplemental answer, appointed counsel for Burkett, and set an evidentiary hearing that was eventually held December 23, 1985. On December 24, 1985 the magistrate recommended dismissal for want of exhaustion. After timely objections by Burkett, the district court adopted the magistrate's report as its opinion on January 15, 1986. Burkett filed a timely appeal.

The magistrate's report, adopted as the court's opinion, noted the "considerable delay" in the Blair County court. Based on respondent's statements at the hearing, however, the magistrate found that "the matter has finally been disposed of by [Blair County], and the complete record has been transmitted to the Superior Court where in the course of normal appellate procedure, the merits of the petition, including the issue of delay can be addressed." App. 134.*fn17

In No. 86-3121, the magistrate filed a report on September 23, 1985 without holding an evidentiary hearing. He recommended dismissal for want of exhaustion on the basis that "the matter has finally been disposed of by [Blair County] and is presently the subject of an appeal to the Pennsylvania Superior Court where in the course of normal appellate procedure the merits of the petition, including the issue of delay can be addressed." App. 56. Burkett timely objected that he had not been sentenced in 140/141 and that his appeal in 161 could not proceed because Blair County had not transmitted the record (due September 23, 1985) to the Superior Court.*fn18 The district court adopted the magistrate's report and recommendation on October 15, 1985.

Burkett was transferred to different prisons three times between September and November 1985. Each time he promptly notified the district court of his new address. The court sent the magistrate's report in No. 86-3121 by certified mail to his correct address on September 23, 1985; it also sent communications to his correct address on October 4, October 9, October 11, and November 12, 1985, each of which assured him that "you will be advised of any decision." However, the critical final order in No. 86-3121, which was filed by the court on October 15, was sent by uncertified mail to the wrong prison; Burkett did not receive it nor did he learn of it until the December 23, 1985 hearing in No. 86-3074, despite an inquiry by mail on December 16. See App. 75, 175-176. On January 15 and 21, 1986, Burkett moved for reconsideration on two grounds: (1) that he had not been notified of the October 15 order, and (2) that the court had not considered his 140/141 convictions or the continuing delay in his 161 appeal. On January 17, the district court vacated its October 15 order on only the former ground; it then redenied Burkett's petition for habeas corpus on January 17 and 23, 1986. Burkett filed a notice of appeal from both January orders on February 5, 1986. This Court granted a certificate of probable cause in both appeals on October 21, 1986. Oral argument was heard April 10, 1987.

E. State Courts: Round III

On the day after the instant federal habeas petitions were docketed in the district court, the Pennsylvania Superior Court denied state habeas relief based on delay in all of Burkett's cases. Burkett then took his state habeas claims to the Pennsylvania Supreme Court on September 27, 1985, which eventually denied relief on April 24, 1986.

In the direct appeal on 284, the record was transmitted to Superior Court on January 2, 1986, four months late. So that he could raise his old counsel's ineffectiveness in his direct appeal, Burkett renewed the request for new counsel that had been denied by the Blair County court. The Superior Court granted the request on April 4, 1986, remanding the case to Blair County for 30 days in which time new counsel could be appointed. After appointing new counsel on April 9, 1986, Blair County did not return the record until July 16, 1986. The appeal then appears to have proceeded normally. The Superior Court denied the appeal on January 12, 1987 and denied rehearing on February 26, 1987. Burkett's timely petition for allocatur is pending before the Pennsylvania Supreme Court.

In 161, Burkett's sentencing order was filed on September 18, 1985, and the record was due in the Superior Court on September 22, 1985. However, no opinion on post-verdict motions was filed until May 8, 1987 -- a month after oral argument in this Court and as the opinion writer was completing the final draft of this opinion for circulation to the other members of the panel. Blair County has not indicated whether a sentencing opinion remains to be filed or whether the record has now been transmitted to the Superior Court.*fn19 The Superior Court ordered Blair County to appoint new counsel for Burkett on April 3, 1986, and it did so on April 9, 1986.

In 140/141, the first trial transcript was filed on October 22, 1985, but the final transcript was not complete until August 11, 1986. The court scheduled new hearings on post-verdict motions but has not yet held such a hearing. Shortly before oral argument in this case, the latest scheduled hearing had to be postponed again. Blair County had assigned to hear the case a judge who had been a member of the district attorney's office during the pendency of Burkett's post-verdict motions, and Burkett successfully moved to recuse the judge. At oral argument counsel indicated that the motions were currently scheduled for hearing on May 21, 1987.

Burkett also filed a new habeas petition in the Blair County court on December 22, 1986, challenging the court's continued failure to hear post-verdict motions or sentence him in 140/141. The court denied the writ on June 2, 1987. The record does not reveal if Burkett has appealed the denial.


Because Burkett filed no appeal as such from the October 15, 1985 final order denying the writ in No. 86-3121, we raise sua sponte the issue of our jurisdiction over that case.*fn20 Burkett did file motions denominated as motions for reconsideration on January 15 and 21, 1986. The district court treated these as a motion for relief from its October 15 order, see Fed. R. Civ. P. 60(b), granted the motion, and redenied the habeas corpus petition on January 17 and 23. Burkett then filed a notice of appeal on February 5, 1986. If the district court had the power to construe the motions as it did in order to allow Burkett to file a timely notice of appeal, we have jurisdiction under 28 U.S.C. ยง 1291 to review the reentered final order.*fn21 If the district court's construction was in error, however, we lack jurisdiction: Burkett's motions could only be construed as either untimely motions for reconsideration under Federal Rule of Civil Procedure 59(e), whose filing deadline in this case would have been October 29, 1985; untimely notices of appeal under Federal Rule of Appellate Procedure 4(a)(1), with a filing deadline of November 14, 1985; or untimely motions to extend time to appeal under Federal Rule of Appellate Procedure 4(a)(5), due December 16, 1985.

We begin our analysis with the case of West v. Keve, 721 F.2d 91 (3d Cir. 1983). In West, we confronted an appellant who had filed a Rule 60(b) motion whose "sole stated purpose . . . [was] to extend the time for appeal." Id. at 96. Carefully limiting our decision to those specific facts, we held that a district court could entertain such a motion only if the motion and subsequent notice of appeal met the time constraints of Rule 4(a)(5). Id. at 97.*fn22

In Hall v. Community Mental Health Center of Beaver County, 772 F.2d 42 (3d Cir. 1985), we applied West to bar relief through a Rule 60(b) motion to a party whose counsel had not been notified by the court of the entry of a final order. We reached this result, even though counsel for neither side had been notified, id. at 46, on the basis of Federal Rule of Civil Procedure 77(d), which states that "lack of notice of the entry by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party for failure to appeal within the time allowed, except as permitted in Rule 4(a)." Id. at 43. Noting counsel's lack of diligence, however, we expressly declined to decide whether relief might be permitted under Rule 60(b) "when delay in filing an appeal is based on reliance on some affirmative behavior of the district court." Id. at 45.*fn23

The instant case is distinguishable from both West and West's application in Hall. The purpose of Burkett's motion was different from that under consideration in West. Because Burkett's motion for reconsideration was motivated not only by his need for more time in which to appeal, but also by the court's failure to consider his 140/141 convictions and the continuing delay in his 161 appeal, the motion's "sole stated purpose" was not "to extend the time for appeal." West, 721 F.2d at 96. We similarly believe that the facts of this case are significantly different from those in Hall, which dealt with the actions of an attorney who was not diligent. Burkett was not only acting pro se but was incarcerated, physically restrained by respondents from checking in person on the status of his case. Cf. Fallen v. United States, 378 U.S. 139, 142-143, 12 L. Ed. 2d 760, 84 S. Ct. 1689 (1964) (court must accept notice of appeal filed late by prisoner because prison prevented its timely filing). He was exceptionally diligent in notifying the court of three address changes and responding to court orders, and the clerk had sent the magistrate's order to the correct address by certified mail. Most importantly, the clerk wrote Burkett four times in October and November 1985 -- thus both before and after the entry of final judgment in No. 86-3121 -- and assured him that he would be "advised of any decision." Only the critical final order was sent to the wrong address. The current situation therefore parallels those from which Hall explicitly distinguished itself: "In these and other cases, the 60(b) motions were allowed because counsel's duty of diligence was suspended in reliance on some affirmative action of the district court." 772 F.2d at 45 (citing cases).*fn24

We reaffirm West and Hall and do not extend ourselves to distinguish them, but this case presents exceptional circumstances that justify relief under Rule 60(b) outside the time constraints of Rule 4(a)(5). We emphasize that Burkett was a diligent,*fn25 incarcerated habeas petitioner,*fn26 repeatedly transferred from jail to jail; that affirmative behavior of the court induced him to await notification by the court for a reasonable length of time;*fn27 that he learned of the entry of judgment too late to apply for relief under Rule 4(a)(5); that he promptly sought relief under Rule 60(b) within 30 days of learning of the entry of judgment; and that respondents have shown no prejudice.*fn28

For the foregoing reasons the district court had the power under Rule 60(b)*fn29 to vacate and reenter judgment. Because Burkett then filed a notice of appeal within 30 days of reentry, we have jurisdiction to ...

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