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WASHINGTON v. SOBINA

United States District Court, E.D. Pennsylvania


April 6, 2004.

RICHARD A. WASHINGTON
v.
RAYMOND J. SOBINA, et al

The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge

REPORT AND RECOMMENDATION

This case involves a petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. The case has a lengthy and unusual state procedural history. As will be seen, the petitioner is awaiting his third retrial on the unresolved charges that remain from the prosecution that has resulted in his filing this habeas petition. Because charges are still pending against the petitioner, the Court of Common Pleas for Philadelphia County has not provided this court with the state court record. Lacking the state court record, the court has relied upon the briefs the parties have submitted and the records the District Attorney for Philadelphia County has provided the court. After reviewing the parties' submissions, the court has been able to piece together what has transpired in this long prosecution.

On December 18, 1995, the petitioner was arrested based on charges that he kidnaped Asha Woodall and shot Anthony Carney on February 17, 1994.*fn1 These crimes took place in Philadelphia County. Mr. Carney, known as Tone, died of his wounds while in the hospital on February 23, 1994. In July and August 1997, the petitioner faced his first trial for these charges. On August 6, 1997, a mistrial was declared.

  The petitioner was tried again in December 1998. This time, the jury convicted him on one count of criminal conspiracy, one count of possession of an instrument of crime and one count of robbery of a motor vehicle. The petitioner was acquitted on the charge of first degree murder, one count of criminal conspiracy, and counts of making terroristic threats, robbery and burglary. The jury was unable to reach a verdict on the lesser degrees of murder and the kidnaping charge. On February 16, 1999, the petitioner was sentenced to a term of incarceration of five to ten years on the three charges for which he had been convicted. On or about February 19, 1999, the petitioner filed a post-sentence motion regarding sentencing issues. The petitioner then filed a notice of appeal on or about March 5, 1999. On March 15, 1999, the trial judge ordered the petitioner to file a concise statement of matters complained of on appeal. On April 26, 1999, the trial judge denied the petitioner's post-sentence motion. The parties agree that the petitioner's appeal has not proceeded any further because, under Pennsylvania law, the petitioner cannot appeal until all of the pending charges are resolved by a verdict.*fn2 The petitioner then awaited retrial for over four years. During that time, in late 2001, he filed a petition for a writ of habeas corpus in the Superior Court of Pennsylvania.*fn3 On January 30, 2002, in a one-page per curiam order, the Superior Court denied the habeas petition. In the order, the Superior Court indicated that only the Supreme Court of Pennsylvania had jurisdiction to issue a writ on a lower court when no appeal was pending.

  On February 19, 2002, the petitioner filed a habeas petition in this court. In this petition, he claimed that he was being denied his Sixth Amendment right to a speedy trial and his due process right to a speedy appeal. While the habeas petition was pending in this court, the petitioner filed a petition for a writ of habeas corpus in the Supreme Court of Pennsylvania on March 11, 2002. In that petition, he claimed that he was being denied his Sixth Amendment right to a speedy trial and his due process right to an appeal. On May 14, 2002, the undersigned recommended that the federal habeas petition be summarily dismissed for lack of exhaustion because the petitioner had a state habeas petition pending in the Supreme Court of Pennsylvania. On June 19, 2002, the Honorable Anita B. Brody approved and adopted this court's recommendation and summarily dismissed the federal habeas petition. According to the parties, the Supreme Court of Pennsylvania had already dismissed the state habeas petition on June 4, 2002.*fn4

  The petitioner filed the presently pending federal habeas petition on September 25, 2002. At the time of filing his pro se habeas petition, the petitioner still had not been retried on the remaining Philadelphia County charges. Judge Brody then referred the case to the undersigned on November 8, 2002. On November 13, 2002, Judge Brody appointed Jules Epstein, Esquire to represent the petitioner. On January 8, 2003, Judge Brody appointed Hope Lefeber, Esquire as substitute counsel and allowed Mr. Epstein to withdraw. Up to that time, the petitioner still had not been retried on the remaining Philadelphia County charges.

  In February 2003, the petitioner was retried on the remaining Philadelphia County charges. Prior to trial, defense counsel, Charles P. Mirarchi, III, Esquire, filed a motion to dismiss the pending charges based on Pennsylvania Rule of Criminal Procedure 600 ("PRCP 600"); PRCP 600 is a speedy trial provision. On February 6, 2003, the trial judge denied the PRCP 600 motion. The trial commenced on February 10, 2003 and, on February 21, 2003, the trial judge declared a hung jury after the jury could not reach a verdict.

  On August 11, 2003 while awaiting the next retrial, the petitioner filed a pro se Post Conviction Relief Act ("PCRA") petition in the trial court. On October 16, 2003, Ms. Lefeber filed an amended habeas petition on behalf of the petitioner in this court and, in it, she noted that the petitioner was scheduled to be retried again in November 2003. However, a retrial did not occur in November 2003. Instead, the case was continued and the retrial was scheduled for January 2004.

  On January 29, 2004, a hearing was held concerning the PCRA petition; the case was continued. Prior to the hearing, John P. Cotter, Esquire, had been appointed to serve as counsel for the petitioner. On February 10, 2004, the trial court scheduled a status hearing regarding the PCRA petition for April 6, 2004.

  In the meantime, on January 30, 2004, trial counsel, Mr. Mirarchi, filed a motion to dismiss the pending prosecution on the ground that it would violate the Due Jeopardy Clause. On the same day, the trial court set a trial date of June 21, 2004. The petitioner's motion to dismiss the pending prosecution was denied by the trial court on March 11, 2004.

  In the amended habeas petition now before the court, the petitioner complains about the delay in retrying him and the adverse effect this delay has had on his right to appeal the Philadelphia County charges for which he has already been convicted. The court will address the constitutional rights this delay implicates.

  By its own terms, the Sixth Amendment guarantees the right to a speedy trial. In addition, the Third Circuit has held that a criminal defendant has a due process right to a speedy appeal. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir. 1995) (citing Burkett v. Cunningham, 826 F.2d 1208, 1221 (3d Cir. 1987)). Both of these rights are implicated by the petitioner's case because of the unusual procedural posture in which he finds himself. That is, although he has already been tried three times, he is still subject to another trial and he has still not been able to pursue an appeal with respect to the charges of which he was convicted in December 1998. The repeated delays in bringing the petitioner to trial implicate his right to a speedy trial. The ongoing delay, which started in December 1998, in his ability to appeal the charges of which he was convicted implicates his right to a speedy appeal. However, before addressing the merits of the petitioner's claims, the court must consider the question of exhaustion.

  The District Attorney argues that the petitioner has failed to exhaust his state remedies because the state courts have not yet adjudicated his habeas claims. However, exhaustion focuses on whether a petitioner has fairly presented his claims to the state courts, not whether the state courts have adjudicated those claims. See McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). In order to fairly present a claim, the petitioner must present the factual and legal basis for the federal claim to the state court in a manner that puts the state court on notice that a federal claim is being asserted. Id. at 261.

  In this case, the petitioner raised his speedy trial and speedy appeal claims in the habeas petition he filed in the Supreme Court of Pennsylvania on March 11, 2002. In that petition, he explicitly stated that the delay in bringing him to trial from December 1998 to that point violated his constitutional right to a speedy trial. In that petition, the petitioner also stated that the three year delay in concluding his prosecution had denied him the constitutional, due process right to a direct appeal.

  The court notes that the petitioner was unrepresented when he filed his state habeas petition in the Supreme Court of Pennsylvania. Thus, it is not fair to expect that he would plead as artfully and precisely as an attorney would have. It is true that the petitioner did not cite the lead speedy trial case, Barker v. Wingo, 407 U.S. 514 (1972), nor the Third Circuit cases which establish the right to a speedy appeal, such as Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995) or Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987). However, the petitioner did explicitly rely upon his constitutional right to a speedy trial and his constitutional, due process right to a direct appeal. He also explicitly relied upon the delay in completing his prosecution as the cause of the violation of both those rights. In the court's view, this was sufficient to fairly present his speedy trial and speedy appeal claims to the Supreme Court of Pennsylvania.*fn5

  Exhaustion ordinarily requires presentation of a claim to the trial court, the state's intermediate appellate court and the state's highest court. See Evans v. Court of Common Pleas. Delaware County, 959 F.2d 1227, 1230 (3d Cir. 1992). However, when the petitioner sought state habeas relief in the Superior Court of Pennsylvania, he was informed by the Superior Court that his state habeas petition could only be presented in the Supreme Court of Pennsylvania. See Commonwealth v. Washington, No. 4 EDM 2002 (Pa. Super. Jan. 30, 2002). Thus, the petitioner only had to file his habeas petition in the Supreme Court of Pennsylvania in order to exhaust his state remedies. Since he did so, the petitioner has exhausted state remedies with respect to his two claims.*fn6

  Another preliminary issue to consider is the standard of review that should be applied. The habeas statute, 28 U.S.C. § 2254(d)(1), requires a deferential standard of review when the state court has adjudicated the merits of a petitioner's claim. See Hameen v. State of Delaware, 212 F.3d 226, 248 (3d Cir. 2000). However, the court has received no indication that the Supreme Court of Pennsylvania adjudicated the merits of the petitioner's speedy trial and speedy appeal claims. Indeed, the parties agree that the Supreme Court of Pennsylvania declined to address those claims. Since the Supreme Court of Pennsylvania did not adjudicate the merits of the petitioner's claims, the court will not apply the deferential review called for by 28 U.S.C. § 2254(d)(1) and, instead, the court will exercise independent judgment with respect to the petitioner's claims. See Hameen, 212 F.3d at 248.

  The petitioner's speedy trial claim is governed by the four-factor balancing test announced In Barker v. Wingo, 407 U.S. 514 (1972). The four factors to be balanced are: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to be tried, and (4) prejudice to the defendant, Id. at 530. The Court noted that none of the four factors are necessary or sufficient to find a deprivation of the right to a speedy trial. Id. at 533.

  The first factor, the length of the delay, is a triggering mechanism because the defendant must allege a delay of a length that is more than ordinary before the court will consider the other factors. Id. at 530. While a delay of sufficient length is referred to as being "presumptively prejudicial," id., this "presumptive" prejudice is not to be taken as conclusively establishing the fourth, prejudice factor of the test. See Doggett v. United States, 505 U.S. 647, 655-56 (1992). A delay of one year in going to trial is sufficient to be deemed presumptively prejudicial. Id. at 652 n.1. Finally, the importance of presumptive prejudice in the balancing test increases as the delay gets longer, Id. at 656.

  The second factor asks the court to determine who has caused the delay. If the prosecution has caused the delay and has done so deliberately in order to hamper the defense, the second factor should weigh heavily against the prosecution. Barker v. Wingo, 407 U.S. at 531. If, instead, the reason for the delay is more neutral, such as negligence on the part of the prosecution or because of overcrowded dockets, the second factor should weigh less heavily against the prosecution. Id. On the other hand, a valid reason, such as a missing witness, would justify the delay it occasions. Id. Finally, any delay caused by the defendant's dilatory actions weigh against finding a speedy trial violation. Hakeem v. Beyer, 990 F.2d 750, 766 (3d Cir. 1993).

  The third factor asks the court to determine whether the defendant asserted his right to a speedy trial in a timely and proper manner. Hakeem v. Beyer, 990 F.2d at 764. Delay in asserting the right does not constitute a waiver, Barker v. Wingo, 407 U.S. at 528, but the failure to assert the right will make it very difficult for the defendant to demonstrate that he was denied a speedy trial, Id. at 532. Further, the defendant's repeated assertions of his right will not weigh in his favor if other actions he has taken indicate that he is unwilling or unable to proceed to trial. Hakeem, 990 F.3d at 764.

  The fourth factor asks the court to determine whether the defendant suffered prejudice as a result of the delay in going to trial. Prejudice should be evaluated in light of the interests of the defendant which the speedy trial right is designed to protect. Barker v. Wingo, 407 U.S. at 532. Those interests are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired. Id. Pretrial incarceration is not considered oppressive unless the conditions of confinement the defendant faces are substandard. See Hakeem, 990 F.2d at 761. Further, some level of anxiety is to be expected while a defendant awaits trial. See id. at 762. In order for the anxiety to weigh in favor of a speedy trial violation, it must produce psychic injury or some, other objective manifestation. See id. Finally, the last of the interests is considered to be the most important because the defendant's inability to prepare his case skews the fairness of the criminal justice system. Barker v. Wingo, 407 U.S. at 532.

  The petitioner also has a speedy appeal claim. As noted above, the Third Circuit has held that a defendant has a due process right to a speedy appeal. See Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir. 1995) (citing Burkett v. Cunningham, 826 F.2d 1208, 1221 (3d Cir. 1987)). In order to evaluate a claim involving the right to a speedy appeal, the Barker v. Wingo factors are employed. See Simmons v. Beyer, 44 F.3d at 1169. The only difference in a speedy appeal claim is that the prejudice factor is modified somewhat to account for a defendant's distinct interests once he has been convicted. The interests the right to a speedy appeal protect are: (1) preventing oppressive incarceration pending appeal; (2) minimizing the defendant's anxiety and concern while he awaits the outcome of his appeal; and (3) limiting the possibility that the defendant's grounds for appeal and his defenses in case of reversal and retrial might be impaired. Id. at 1170.

  The petitioner claims that his speedy trial claim covers the entire time from his arrest in December 1995 to the present. This would be the proper argument to make if the petitioner was still awaiting his first trial on these charges. However, that is not the case. In fact, the petitioner has been tried three times since December 1995. Thus, the court will consider whether any of four, separate periods of delay violated his right to a speedy trial. Those four periods are: (1) December 1995 to July 1997; (2) August 1997 to December 1998; (3) December 1998 to March 2003; and (4) March 2003 to June 21, 2004.*fn7

  The period from December 1995 to July 1997 is more than one year and so it triggers further speedy trial analysis. See Doggett v. United States, 505 U.S. at 652 n.1. However, the delay was only nineteen months long and so the first factor only weighs slightly in favor of the petitioner.

  The second factor concerns the reason for the delay. The first record the court has received concerning this period is dated March 28, 1996.*fn8 It indicates that counsel was to be appointed and that the next status hearing was to be on April 12, 1996. On April 12, 1996, a status hearing was held. The next status hearing was on May 16, 1996; on that date, the trial court noted that discovery was provided to the defense. At this point, Mr. Mirarchi was listed as trial counsel. On June 13, 1996, defense counsel requested a continuance because he was on trial. On July 9, 1996, defense counsel again requested a continuance because he was unavailable. On July 11, 1996, defense counsel requested another continuance because he was on trial. On July 19, 1996, defense counsel said he was ready for trial and the case was scheduled for trial on August 16, 1996. However, on August 16, 1996, defense counsel was again not available. On August 23, 1996, defense counsel requested a continuance because of a family emergency. On September 6, 1996, in spite of previously stating he was ready for trial, defense counsel sought a continuance to interview additional witnesses. On September 20, 1996, defense counsel requested another continuance. On October 3, 1996, defense counsel was unavailable. On December 6, 1996, lsla Fruchter, Esquire was appointed second chair, at the request of defense counsel.*fn9 On January 3, 1997, defense counsel indicated that an expert had been retained and that penalty phase preparation was ongoing. On January 17, 1997, the trial judge noted that the petitioner might obtain new counsel and the case was continued for status of counsel. On February 7, 1997, without new counsel present, the trial judge noted that he expected an eight day trial with a death-qualified jury.*fn10 The trial was to be after May 20, 1997. On February 20, 1997, the trial judge noted that he expected a ten day trial with a death-qualified jury. This time, he wrote that the trial was to commence after May 7, 1997. On July 21, 1997, the trial judge granted a request for a two day continuance to locate a witness.*fn11 The trial was to begin on July 23, 1997. As noted previously, the trial ended on August 6, 1997, with a mistrial.*fn12 The status sheets indicate a good deal of the delay in commencing the first trial is explained. Indeed, once Mr. Mirarchi entered his appearance, the bulk of the continuances were sought by him. The delay he caused, which amounts to approximately eight months, does not weigh against the prosecution. In addition, there was at one brief continuance caused by the need to locate a witness. The need to locate a witness is a permissible reason to delay a trial and does not weigh against the prosecution. See Barker v. Wingo, 407 U.S. at 531. The remainder of the delay, which amounts to approximately eleven months, is unexplained and, for this reason, must be charged to the prosecution. See Hameen, 990 F.2d at 770. However, there is no indication that the unexplained delay was caused in order to hamper the defense. Therefore, the second factor only weighs slightly in favor of the petitioner. See Barker v. Wingo, 407 U.S. at 531.

  The third factor concerns whether the defendant asserted his right to a speedy trial in a timely and proper manner. During this time, there is no indication that the petitioner ever asserted his right to a speedy trial. Indeed, Mr. Mirarchi's repeated requests for continuances indicate that he was not ready to go to trial earlier. Thus, this factor does not weigh in the petitioner's favor.

  The fourth factor concerns whether the defendant suffered prejudice as a result of the delay in going to trial. The interests that are protected by the right to a speedy trial are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired. There is no suggestion that the petitioner suffered oppressive pretrial incarceration, that he suffered unusual anxiety prior to the first trial or that his ability to mount a defense was impaired. Thus, the prejudice factor also does not weigh in his favor.

  The first and second factors do weigh slightly in the petitioner's favor. However, the other two factors do not weigh in the petitioner's favor. Therefore, after weighing all four factors, the court concludes that the petitioner was not denied his Sixth Amendment right to a speedy trial by the delay prior to the first trial.

  The second period of delay is from August 1997 to December 1998. This delay is also more than one year and so it triggers further speedy trial analysis. See Doggett v. United States, 505 U.S. at 652 n.1. However, this delay is even shorter than the prior one and so it does not weigh heavily in favor of the petitioner.

  The second factor concerns the reason for the delay. On August 11, 1997, the trial judge listed the case for status on November 10, 1997. He set the trial date for December 8, 1997 and he attached counsel for the trial. On November 10, 1997, the trial judge noted that the defense would be ready for trial and the trial date was not changed. On December 8, 1997, the trial did not commence. The trial judge was presiding over a different jury trial and so the case had to be continued. On December 9, 1997, another status hearing was conducted. The prosecution indicated that it was having difficulty with some of its witnesses because of the upcoming Christmas holiday. On December 12, 1998, the trial judge set the trial date for May 4, 1998. On May 4, 1998, Mr. Mirarchi was not available because he had surgery. On July 27, 1998, the trial judge set the next status hearing for September 9, 1998 and indicated that the trial was to commence on December 1, 1998. As noted above, the petitioner was tried in December 1998 and the jury reached a verdict on some, but not all, of the charges. Much of the delay in commencing the second trial is unexplained. First, there is no explanation for why the court immediately continued the case from August 1997 to November 1997. Second, there is no explanation for why the trial judge decided in December 1997 to continue the case until May 1998. Third, there is no explanation for why the trial judge decided in July 1998 that the trial should not commence until December 1998. When delay is unexplained, it must be weighed against the prosecution. See Hameen, 990 F.2d at 770. However, there is no indication that the unexplained delay was motivated by a desire to hamper the defense. Therefore, the second factor weighs only slightly in favor of the petitioner. See Barker v. Wingo, 407 U.S. at 531.

  The third factor concerns whether the defendant asserted his right to a speedy trial in a timely and proper manner. There is no indication that the petitioner asserted his right to a speedy trial during the second period of delay. Thus, this factor does not weigh in his favor.

  The fourth factor concerns whether the defendant suffered prejudice as a result of the delay in going to trial. The interests that are protected by the right to a speedy trial are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired. In this case, there is no suggestion that the petitioner suffered oppressive pretrial incarceration, suffered unusual anxiety prior to the second trial or that his ability to mount a defense was impaired. Thus, this factor also does not weigh in his favor.

  The first and second factor weigh in the petitioner's favor, although not very heavily. In addition, the last two factors do not weigh in his favor. Thus, after balancing all four factors, the court concludes that the petitioner was not denied his Sixth Amendment right to a speedy trial by the second period of delay.

  The third period of delay was from December 1998 to February 2003. The first factor to consider is the length of the delay. This is a period of over four years and this length of delay is clearly sufficient to trigger consideration of the other Barker v. Wingo factors. See Doggett 505 U.S. at 652 n.1. Further, the delay is quite long and so this factor strongly weighs in favor of the petitioner.

  The second factor concerns the reason for the delay. The District Attorney argues that all of the delay was caused by the petitioner's requests for continuance or by the trial court. First, any delay caused by the trial court is attributed to the prosecution, not to the petitioner. See Barker v. Wingo, 407 U.S. at 531. Second, upon review of the status sheets the District Attorney has provided, there are only two continuances that were caused by the petitioner, one from February 21, 2001 to May 24, 2001 and another from June 3, 2002 to June 28, 2002. Together, these delays amount to approximately four months. However, the records the District Attorney has provided indicate that the other three years and nine months of delay are attributable to the prosecution. Thus, this factor also weighs in favor of the petitioner.

  The third factor concerns whether the defendant asserted his right to a speedy trial in a timely and proper manner. Based on the record before the court, it would appear that the petitioner asserted his right to a speedy trial for the first time when he filed a habeas corpus petition in the trial court on November 8, 2001. At some later time, he filed a habeas corpus petition in the Superior Court of Pennsylvania. When this petition was denied, he again raised his claim in the Supreme Court of Pennsylvania on March 11, 2002. Finally, before his third trial commenced on February 6, 2003, the petitioner argued that his right to a speedy trial under Pennsylvania Rule of Criminal Procedure 600 was violated. It does not appear that he presented a Sixth Amendment speedy trial claim at that time.

  It is apparent that the petitioner was tardy in asserting his right. He waited until November 2001 to raise the issue for the first time. By that point, almost three years of the delay had passed. Further, the petitioner provides no explanation for why he did not raise a speedy trial claim in Pennsylvania's courts at some time before November 2001. The petitioner's tardiness in filing is somewhat ameliorated by the fact that the state courts have not been receptive to his assertion of his right. Nonetheless, the court finds that the petitioner's surprising tardiness in asserting his right causes the third factor to be neutral; that is, it does not weigh in favor of finding a Sixth Amendment violation.

  The fourth factor concerns whether the defendant suffered prejudice as a result of the delay in going to trial. The interests that are protected by the right to a speedy trial are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired.

  In this case, there is no indication that the four year delay in trying the petitioner on the remaining charges caused his incarceration to be oppressive. It must be remembered that he was convicted in December 1998 and sentenced in February 1999 to a term of incarceration of five to ten years. Thus, after being sentenced in February 1999, the petitioner had to expect that he would be incarcerated and would be for a long time. Likewise, there is no indication that the petitioner has suffered any unusual anxiety or concern because of the lengthy delay in being retried.

  In an effort to demonstrate prejudice, the petitioner argues that, but for the pending charges, he would be eligible for parole because he has served the minimum sentence that was imposed upon him.*fn13 However, in Pennsylvania, inmates rarely obtain parole upon the expiration of their minimum sentences. Instead, they often stay incarcerated until they have served close to their maximum sentence. Further, the court is aware that, on July 17, 2003, the petitioner pled guilty to one count of robbery in the Court of Common Pleas for Montgomery County.*fn14 The Montgomery County court imposed a sentence of three and one-half to seven years on the petitioner. The court does not know whether and how this sentence will affect the petitioner's eligibility for parole on his five to ten year Philadelphia County sentence but this added uncertainty makes it impossible to conclude that the petitioner is likely to be paroled from his five to ten year sentence. Thus, the court declines to conclude that the petitioner feels any unusual anxiety or concern about his parole status.

  The question of impairment of the defense remains. Because the result of the petitioner's trial in February 2003 was a hung jury, it does not seem that the petitioner has suffered any impairment in his defense. Indeed, the jury's inability to reach a verdict may be an illustration of the reality that delay is a double edged sword in that it can harm both the prosecution and the defense. See United States v. Loudhawk, 474 U.S. 302, 315 (1986). Since the prosecution bears the burden of proof, delay can impair its ability to sway the jury. See id. Further, the court notes that, in his uncounseled filings, the petitioner has maintained that the prosecution's case is largely dependent upon the credibility of Asha Woodall.*fn15 Over time, one might expect that Ms. Woodall's memory of the crucial events will diminish, see Barker v. Wingo, 407 U.S. at 521, and the result of the third retrial would seem to indicate that Ms. Woodall is proving to be less than convincing. This, of course, helps the petitioner's defense. In sum, there is no indication that the lengthy delay in commencing the February 2003 trial impaired the petitioner's ability to mount a defense. For all these reasons, the prejudice factor does not weigh in the petitioner's favor.

  The court has concluded that the first two factors weigh in the petitioner's favor. In the court's view both should be viewed as strongly weighing in his favor. However, the court has also found that the third factor is neutral and that the fourth factor does not weigh in his favor. Although it is a close case, the lack of prejudice and the petitioner's surprising tardiness in asserting his right persuade the court that the petitioner has not suffered a Sixth Amendment violation. Admittedly, the process of weighing the Barker v. Wingo factors is imprecise, see Barker v. Wingo, 407 U.S. at 521, 530, but, after doing so, the court is not convinced that the unusual and lengthy delay the petitioner endured prior to his February 2003 trial so adversely affected the interests the Speedy Trial Clause was designed to protect that the Sixth Amendment was violated. Therefore, the court declines to find that the petitioner's Sixth Amendment right to a speedy trial was violated by the delay from December 1998 to February 2003.

  The last period of delay is from February 2003 until the next scheduled retrial on June 21, 2004. This period of delay is again more than one year in length and so it does trigger consideration of the other Barker v. Wingo factors. See Doggett v. United States, 505 U.S. at 652 n.1. However, this delay is scheduled to be sixteen months long and so it does not weigh heavily in favor of the petitioner.

  The second factor concerns the reason for the delay. The first relevant status sheet the court has been provided is dated November 3, 2003. It indicates that a scheduled hearing was continued so that defense counsel could obtain the notes of testimony. The same thing occurred on Decembers, 2003, at the next scheduled hearing. On December 15, 2003, the trial judge noted that defense counsel had recently received the notes of testimony and the hearing was continued so that counsel could file a motion. The next status note is dated January 27, 2003 and it indicates that the trial judge was presiding over a different trial and it seems to indicate that defense counsel would be filing a motion. On January 30, 2004, the trial judge noted that defense counsel had filed a motion and the trial judge set the trial date for June 21, 2004.*fn16 On March 11, 2004, the trial judge indicated that he was denying the defense motion to bar prosecution on Double Jeopardy Clause grounds and he confirmed that the trial date would remain unchanged.

  There is no explanation for the initial delay of nine months but there is no indication that it was caused to hamper the defense. The delay between November 3, 2003 and December 15, 2003 seems to have been caused by defense counsel's need to obtain notes of testimony to prepare the motion he ultimately filed on January 30, 2004. This delay does not seem excessive and is justified. The time counsel took to prepare and file the motion likewise was justified. The trial judge took less than two months to rule upon the defense motion and this time is also justified. It is not clear to the court why the trial date was not moved up once the defense motion was denied but, since the trial date was only three months away at that point, the delay does not seem excessive. The court finds that almost one year of the total delay is unexplained and that the explained delay was reasonable and justified. Nonetheless, the unexplained delay must be charged to the prosecution. See Hameen, 990 F.2d at 770. Since there is no indication that the unexplained delay was caused to hamper the defense, the second factor only weighs slightly in favor of the petitioner. See Barker v. Wingo, 407 U.S. at 531.

  The third factor concerns whether the petitioner asserted his right to a speedy trial. There is no indication that he has done so during this last period of delay. The motion Mr. Mirarchi filed on January 30, 2004 was based on the Double Jeopardy Clause, not the Speedy Trial Clause. Thus, the third factor does not weigh in the petitioner's favor.

  The fourth factor concerns whether the defendant suffered prejudice as a result of the delay in going to trial. The interests that are protected by the right to a speedy trial are: (1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the defendant; and (3) limiting the possibility that the defense will be impaired.

  There is no indication that the petitioner's ongoing incarceration has been overly oppressive nor that he suffered unusual anxiety or concern. The petitioner has argued that he has already served his minimum sentence and that he has been prevented from seeking parole. However, as the court has explained, there is little reason to expect that the petitioner could successfully obtain parole anytime soon. Finally, as explained previously, there seems to be no indication that the passage of time has impaired his defense. Instead, it would seem that the prosecution's ability to convict him has diminished as these years have passed.

  The court has found that the first and second factors weigh slightly in the petitioner's favor. However, the third and fourth factors do not weigh in his favor. Thus, after balancing all the factors, the court concludes that the petitioner's Sixth Amendment right to a speedy trial was not violated by the last period of delay.

  The court must now consider whether the petitioner's due process right to a speedy appeal has been violated. The petitioner was convicted of certain offenses in December 1998 and, to date, he has not been able to appeal his conviction. It would appear the reason he has not been able to appeal is that Pennsylvania law prevents him from appealing until all the charges brought against him in the Philadelphia County case are resolved by a verdict. See Pennsylvania Rule of Appellate Procedure 341. In addition, the parties agree that Pennsylvania law prevents the petitioner from appealing until all charges brought against him in the Philadelphia County case are resolved by a verdict.

  The delay in appealing is now five years and three months and will extend, at least, until the end of the next retrial, which is scheduled to commence on June 21, 2004. Thus, it is appropriate to measure the delay as extending to the end of June 2004. This makes the delay in appealing five years and six months. This delay is quite long and is clearly sufficient to trigger consideration of the other Barker v. Wingo factors. See Doggett, 505 U.S. at 652 n.1; Burkett v. Fulcomer, 951 F.2d 1431, 1445(3dCir. 1991).

  The second factor concerns the reason for the delay. As noted above, the sole reason for the delay would appear to be Pennsylvania law. Thus, none of the delay can be attributed to the petitioner and the second factor weighs in his favor.

  The third factor concerns the petitioner's assertion of his right to appeal. The petitioner was sentenced on February 16, 1999 to five to ten years on the charges for which he was convicted at the December 1998 trial. On or about February 19, 1999, the petitioner filed a post-sentence motion regarding sentencing issues The petitioner then filed a notice of appeal on or about March 5, 1999. On March 15, 1999, the trial judge ordered the petitioner to file a concise statement of matters complained of on appeal. Then, on April 26, 1999, the trial judge denied the petitioner's post-sentence motion. The petitioner's appeal has not progressed any further and the parties agree that the reason the appeal has been stymied is Pennsylvania law. Thus, the petitioner has timely asserted his right to appeal and he has taken no action to indicate that he is unready or unwilling to have his appeal heard.*fn17

  The question of prejudice must be considered. In doing so, the court must keep in mind the interests the right to a speedy appeal protects. They are: (1) preventing oppressive incarceration pending appeal; (2) minimizing the defendant's anxiety and concern while he awaits the outcome of his appeal; and (3) limiting the possibility that the defendant's grounds for appeal and his defenses in case of reversal and retrial might be impaired.

  There is no indication that the petitioner has suffered oppressive incarceration over the five years and six months his appeal is being delayed. Further, as noted previously, the petitioner was sentenced in February 1999 to a five to ten year sentence. This was before the petitioner filed his notice of appeal and so he had to expect to that he would be incarcerated while his appeal was pending. Thus, some of the time he has spent in jail would have passed even if his appeal had been processed in a timely manner. An appeal to the Superior Court of Pennsylvania probably would take a year or more and then the petitioner could seek allowance of appeal from the state supreme court and then certiorari from the United States Supreme Court. These steps, if taken, would likely extend the petitioner's direct appeal for two or perhaps three more years, which amount to most of the time the petitioner has been incarcerated since his December 1998 trial. Thus, it is the court's view that the petitioner's present incarceration has not been oppressive. In addition, there is no indication that the petitioner has anxiety or concern over his appeal which is different from that which any incarcerated person with a pending appeal would experience.

  The issues of possible impairment of the appeal and of the defense on retrial remain. There is no indication that the delay in processing the petitioner's appeal has impaired the petitioner's grounds for appeal. Although the court does not know the issues the petitioner intends to raise on appeal, the petitioner does not contend that the delay in processing his appeal will prevent him from raising any grounds for appeal. Further, the court has noted that the delay in trying the petitioner on his outstanding charges does not seem to have impaired his defense because his third trial ended in a mistrial. If the petitioner's pending appeal were to result in a reversal, his retrial on the appealed charges might prove to be more difficult for the prosecution than for him. This is because delay will often harm the prosecution since it has the burden of proof at trial. See United States v. Loudhawk, 474 U.S. at 315. In short, the petitioner has not established any impairment of his appeal or of his defense on retrial. Further, the petitioner has not established an adverse impact upon any of the other interests the right to a speedy appeal protects. This means that the prejudice factor does not weigh in his favor.

  The court has found that the first three Barker v. Wingo factors weigh in the petitioner's favor and the last does not. The court first notes that the five and one-half year delay the petitioner is suffering is excessive and weighs heavily in his favor. Yet, of the three factors in the petitioner's favor, the court finds the third to be the most telling. Unlike with respect to his speedy trial right, the petitioner has not delayed in asserting his right to appeal. Further, he has taken no steps which indicate that he is unable or unwilling to pursue his appeal. In the court's view, this weighs heavily in his favor and, in spite of the lack of prejudice, tips the overall balance of the Barker v. Wingo factors in his favor. That is, the court finds that the petitioner's due process right to a speedy appeal has been violated.

  Having found a violation of the petitioner's right to a speedy appeal, the court must decide what remedy to afford the petitioner. In such cases, the usual remedy is to order the appellate court to begin processing the petitioner's appeal within a certain time and, if the appellate court fails to do so, the petitioner should be released from custody. See Simmons v. Reynolds, 898 F.2d 865, 869 (2d Cir. 1990). The Third Circuit has also Grafted other remedies for denials of the right to a speedy appeal. For example, in Burkett v. Fulcomer, the court ordered that Burkett's sentence be reduced by the unnecessary amount of time the state trial court delayed his appeal.*fn18 Burkett v. Fulcomer, 951 F.2d at 1447. While this remedy is somewhat appealing, it could prove to be of little use to the petitioner because he still faces trial on a second degree murder charge. If he is convicted of that charge, he will be sentenced to a life term of incarceration without the possibility of parole. Rather than recommending a remedy that may effectively evaporate after his pending retrial, the court will recommend that the Superior Court of Pennsylvania set a briefing schedule within thirty days of the entry of the order granting the writ of habeas corpus and the Superior Court should proceed to consider the petitioner's appeal. If the Superior Court fails to afford the petitioner this procedural remedy, the conviction for the charges the petitioner seeks to appeal shall be vacated.*fn19

  The court must also determine whether to recommend granting a certificate of appealability ("COA") with respect to the petitioner's Sixth Amendment speedy trial claim. Since the court has adjudicated that claim on its merits, a COA can issue if jurists of reason could find the court's determination of the merits of the claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

  The court has addressed the petitioner's claim by applying the Barker v. Wingo factors to the period of delay which occurred prior to each of the petitioner's three trials and prior to the scheduled fourth trial. The court notes that balancing the Barker v. Wingo factors is an imprecise exercise. See Barker v. Wingo, 407 U.S. at 521, 530. Further, with respect to the longest period of delay, from December 1998 to February 2003, the court has found it to be a close question whether the lengthy delay violated the petitioner's Sixth Amendment right to a speedy trial. Since it is a close question, the court believes that a reasonable jurist could disagree with the court's weighing of the Barker v. Wingo factors. As for the other, shorter periods of delay, the court believes it is less likely that a reasonable jurist would disagree with the court's weighing of the Barker v. Wingo factors. Nonetheless, a reasonable jurist might disagree with the decision to break up the periods of delay and so it is appropriate to grant a certificate of appealability for all periods of delay. In addition, the court finds that the petitioner's speedy trial claim and this case are deserving of proceeding further and so a COA should issue. See Slack v. McDaniel, 529 U.S. at 484.

  The court's recommendation follows. RECOMMENDATION

  AND NOW, this ___ day of April, 2004, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED with respect to the petitioner's Sixth Amendment speedy trial claim and GRANTED with respect to the petitioner's due process speedy appeal claim. It is further recommended that the remedy for the petitioner's speedy appeal claim be the following: the Superior Court of Pennsylvania shall set a briefing schedule for the petitioner's appeal within thirty days of the entry of the order granting the writ of habeas corpus and the Superior Court should proceed to consider the petitioner's appeal; if the Superior Court fails to afford the petitioner this procedural remedy, the conviction for the charges the petitioner seeks to appeal shall be vacated. It is also RECOMMENDED that a certificate of appealability be granted with respect to the petitioner's Sixth Amendment speedy trial claim. ORDER

  AND NOW, this ___ day of ___, 2004, after careful and independent consideration of the petition for a writ of habeas corpus, the response thereto, the amended habeas petition, the other documents filed by the parties, and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;
  2. The petition for a writ of habeas corpus is DENIED with respect to the petitioner's Sixth Amendment speedy trial claim and GRANTED with respect to the petitioner's due process speedy appeal claim;

  3. The remedy for the petitioner's speedy appeal claim is as follows: the Superior Court of Pennsylvania shall set a briefing schedule for the petitioner's appeal within thirty (30) days of the date of this Order and the Superior Court should proceed to consider the petitioner's appeal; if the Superior Court fails to afford the petitioner this procedural remedy, the conviction for the charges the petitioner seeks to appeal shall be vacated;

  4. A certificate of appealability is GRANTED with respect to the petitioner's Sixth Amendment speedy trial claim.


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