Baker v. Colvin
Filing
10
DECISION AND ORDER dismissing 1 Petition for Writ of Habeas Corpus filed by Willie Baker. The Court finds that Baker has failed to show that his due process rights were violated by the delay in perfecting his appeal. 28 U.S.C. § 2254(d)(1) . Accordingly, Baker's application under 28 U.S.C. § 2254 [ECF No. 1] is denied. The Clerk of the Court is hereby ordered to close this case. Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability, s ince Baker has not made a substantial showing of the denial of a constitutional right. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Co urt of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in ac cordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. Charles J. Siragusa on 11/16/20. (KAP)CLERK OF THE COURT IS DIRECTED TO MAIL A COPY OF THIS NEF AND ORDER TO PRO SE PETITIONER AT FIVE POINTS.-CLERK TO FOLLOW UP-
Case 6:17-cv-06063-CJS Document 10 Filed 11/16/20 Page 1 of 7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
WILLIE BAKER,
Petitioner,
DECISION AND ORDER
-vs-
17-CV-6063 (CJS)
JOHN COLVIN, Superintendent of
Five Points Correctional Facility,
Respondent.
_________________________________________
The petitioner, Willie Baker (“Baker”), brings this pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, claiming that his appellate counsel's failure to perfect his
appeal for over thirty-six months denied him due process of law. Pet., Jan. 30, 2017, ECF No. 1.
For the reasons explained below, the petition for a writ of habeas corpus [ECF No. 1] is denied.
BACKGROUND
On June 5, 2013, the Supreme Court of New York, Monroe County, gave Baker a
determinate sentence of 18 years imprisonment plus five years post-release supervision for his
conviction on one count of Assault in the First Degree after a trial by jury. Tr., 15, June 15,
2017, ECF No. 7-4. On June 27, 2013, Baker’s trial attorney filed a notice of appeal to the
Appellate Division, Fourth Judicial Department. Tr. at 23. Thereafter, Baker was assigned
different counsel for his appeal. Pet. at 14. As of January 21, 2017, however, Baker’s appeal had
not been perfected. Pet. at 5. Therefore, Baker filed the present petition pro se, arguing that his
“due process rights are being violated due to the gross delay in perfecting his appeal.” Pet. at 5.
During the pendency of this petition, Baker’s appeal was briefed by his appellate counsel,
the merits of his appeal were considered by the Fourth Department and the judgment against
him was unanimously affirmed, and the Court of Appeals denied him leave to appeal. People v.
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Baker, 67 N.Y.S.3d 369, 370 (N.Y. App. Div. 2017); People v. Baker, 108 N.E.3d 500 (N.Y. 2018).
Nevertheless, “[a] state court's hearing of an appeal does not moot a habeas petition based on a
claimed denial of due process of the petitioner's right to appeal because it does not resolve the
fundamental issue raised: whether delay or ineffective assistance of counsel violated the
petitioner's right to an adequate and effective appeal.” Simmons v. Reynolds, 898 F.2d 865, 867
(2d Cir. 1990) (citing Evitts v. Lucey, 469 U.S. 387, 400–05 (1985)). Thus, despite his appeal
having been decided, Baker is entitled to a habeas determination. Id.
The Court is in possession of, and has reviewed, the state record, including transcripts of
the sentencing hearing and Baker's direct appeal to the Appellate Division. Baker has not
challenged the record below as inaccurate. Accordingly, the Court finds an evidentiary hearing
unnecessary.
LEGAL STANDARD
Baker brings his habeas corpus petition pursuant to 28 U.S.C. § 2254. The general legal
principles applicable to such a claim are well settled.
Federal courts are obliged to give
deference to state courts' decisions. See Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015)
(citing the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214). For claims adjudicated on the merits in state court, a federal court may issue a writ of
habeas corpus only when the state-court adjudication “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly established Federal law . . . .” Id. (quoting
28 U.S.C. § 2254(d)(1)). 1 Generally speaking, a principle is “clearly established Federal law” for
§ 2254(b)(1)(A) also requires exhaustion of administrative remedies in order to enforce the principles of
federal-state comity. See DiSimone v. Phillips, 518 F.3d 124, 127 (2d Cir. 2008). However, where “a habeas
claim is based upon allegedly unconstitutional delay in the state appellate process, and a prisoner’s requests
to the state court and state-appointed counsel have been to no avail,” the Second Circuit has held “that the
state provides no effective remedy and, consequently, exhaustion is not required.” Geames v. Henderson, 725
F. Supp. 681, 684 (E.D.N.Y. 1989) (citing Brooks v. Jones, 875 F.2d 30, 31 (2d Cir. 1989)).
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§ 2254 purposes when it is embodied in a Supreme Court holding framed at the appropriate
level of generality. Washington v. Griffin, 876 F.3d 395, 403 (2d Cir. 2017) (quoting, inter alia,
Thaler v. Haynes, 559 U.S. 43, 47 (2010)), cert. denied, 138 S. Ct. 2578.
For cases involving due process claims for excessive delays in prosecuting state appeals,
the Second Circuit has stated:
The Supreme Court has not yet directly addressed the issue of whether the
Constitution guarantees a speedy criminal appeal, once an opportunity for an
appeal is provided. The lower federal courts, however, have grappled with the
question, and it is now clear in this circuit that substantial delay in the state
criminal appeal process is a sufficient ground to justify the exercise of federal
habeas jurisdiction . . . . [E]ven when the habeas petitioner seeks release from
custody based on delay or denial of his right to appeal and his conviction is
thereafter affirmed by the state appellate court, the affirmance does not by itself
moot the habeas petition because undue appellate delay raises a legitimate due
process claim . . . . Given substantial and unjustified delay, the petitioner is
entitled to a habeas determination of whether his appeal was no more than a
meaningless ritual . . . . Of course, the fact that a petitioner in such circumstances
presents a cognizable habeas claim does not decide the substantive question of
what type of relief, if any, is appropriate.
Cody v. Henderson, 936 F.2d 715, 718–19 (2d Cir. 1991) (internal quotation marks and citations
omitted).
DISCUSSION
In his petition, Baker argues that the substantial delay in his state criminal appeal
process violated his due process rights. Because Baker is proceeding pro se, the Court has
construed his submissions liberally, “to raise the strongest arguments that they suggest.”
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
In assessing the plausibility of due process claims based on delay in the state criminal
appeals process, a court properly considers the criteria articulated by the Supreme Court in
Barker v. Wingo, 407 U.S. 514 (1972), regarding the right to a speedy trial. Roberites v. Colly,
546 F. App'x 17, 19 (2d Cir. 2013). These criteria include (1) the length of the delay, (2) the
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reason for the delay and the party responsible, (3) whether petitioner asserted his right to a
decision, and (4) ensuing prejudice. Id. (citing Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.
1990)). A court should also consider federal-state comity. See Brooks v. Jones, 875 F.2d 30, 32
(2d Cir. 1989).
With respect to the first Barker factor, length of the delay, it is clear that this case was
neither so complicated nor so complex that the delay of over forty months was justified. Yourdon
v. Kelly, 769 F. Supp. 112, 115 (W.D.N.Y. 1991), on reconsideration, No. CIV-88-738E, 1992 WL
10514 (W.D.N.Y. Jan. 7, 1992), aff'd, 969 F.2d 1042 (2d Cir. 1992). Once perfected, the appeal
was heard and resolved within six months. Accordingly, this Court finds the delay of more than
forty months to weigh in Baker’s favor.
With respect to the second Barker factor, the reason for the delay, the Court notes the
Supreme Court’s guidance that “[a] more neutral reason [for the delay] such as negligence or
overcrowded courts should be weighted less heavily [against the government] but nevertheless
should be considered since the ultimate responsibility for such circumstances must rest with
the government rather than with the defendant.” Barker, 407 U.S. at 531. According to the
declaration filed with Respondent’s answer in this case, the Monroe County Public Defender
had 427 assigned appeals as of June 2, 2017, had to retain an outside attorney for Baker’s case
to help relieve the backlog, and was so busy it had to obtain 17 separate extensions in Baker’s
case. Decl., ¶ 2, June 15, 2017, ECF No. 7-1. Consequently, the Court finds that this is a case in
which the reason for delay weighs lightly against the government, as the delay was attributable
to overcrowded courts and not to state actors deliberately delaying the appeal. Mitchell v.
Rivera, No. 9:05-CV-0710GTS/GJD, 2009 WL 2868088, at *9 (N.D.N.Y. Sept. 1, 2009).
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With respect to the third Barker factor, the prisoner’s assertion of his rights, Respondent
indicates in the declaration accompanying its answer that Baker “never contacted or filed any
state court process with the Fourth Department to complain about the delay in perfecting his
appeals.” Decl. at ¶ 2. It appears that Baker did contact appellate counsel about the status of
his case in June 2015, as Baker contends that his counsel informed him that 46 cases were
ahead of his case on the Appellate Division’s calendar. Pet. at 5. Given such a clear indication
of what to expect, as well as his diligence in filing this habeas action, any failure by Baker to do
more cannot be viewed critically. Yourdon, 769 F. Supp. at 115.
The final Barker factor is prejudice. When assessing the prejudice that may accrue to a
petitioner due to appellate delay, the court should consider factors which are analogous to those
used in assessing speedy trial delays, including: the prevention of oppressive incarceration
pending appeal, minimization of anxiety and concern while awaiting the outcome of appeal,
undercutting a defendant's grounds for appeal, and the possible impairment of petitioner’s
direct appeal or his defenses in the case of a retrial. Sinatra v. Barkley, 741 F. Supp. 39, 42
(E.D.N.Y.1990).
The present petition, as well as Baker’s statement that he is elderly and suffers from
significant health problems, evidences the fact that the delay in hearing his appeal caused
Baker anxiety and concern. Pet. at 5. However, the “most important factor in assessing prejudice
is the possible impairment of petitioner’s direct appeal, or defense upon retrial, occasioned by
the delay.” Collins v. Rivera, No. 99-CV-0490H, 1999 WL 1390244, at *5 (W.D.N.Y. Dec. 2, 1999).
Baker does not make any allegations with respect to any possible impairment to his appeal or
to a defense upon retrial. Thus, while the Court recognizes that Baker has suffered anxiety as
a result of the delay, on balance, while the prejudice to petitioner is appreciable, it is too
speculative to be considered substantial. Id. at *6.
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Lastly, the Court must consider the possible impact that federal intervention will have
on federal-state judicial comity. As indicated above, the Appellate Division decided Baker’s
appeal during the pendency of this petition and unanimously affirmed his conviction. Therefore,
any action this federal Court takes would amount to little more than admonishment of the public
defender and the state court to manage its heavy appellate caseload more efficiently, a position
this Court does not find justified given Respondent’s reasonable explanation.
To be sure Baker has demonstrated that that the delay in his appeal of over forty months
was substantial, that he did not in any way contribute to the delay, and that he took steps to
expedite the appeal. Nevertheless, delay, without more, is not a sufficient basis for release from
custody. Muwwakkil v. Hoke, 968 F.2d 284 (2d Cir. 1992) (citations omitted). Respondent’s
reasonable explanation, as well as Baker’s failure to show prejudice, weigh decisively against
finding a due process violation. Moreover, as Baker's conviction was affirmed, his incarceration
is lawful. Baker’s petition for a writ of habeas corpus must therefore be denied.
CONCLUSION
Based on the foregoing, the Court finds that Baker has failed to show that his due process
rights were violated by the delay in perfecting his appeal. 28 U.S.C. § 2254(d)(1). Accordingly,
Baker’s application under 28 U.S.C. § 2254 [ECF No. 1] is denied. The Clerk of the Court is
hereby ordered to close this case.
Pursuant to 28 U.S.C. § 2253, the Court declines to issue a certificate of appealability,
since Baker has not made a substantial showing of the denial of a constitutional right. The
Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would
not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied.
Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma
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pauperis should be directed on motion to the United States Court of Appeals for the Second
Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So Ordered.
Dated:
November 16, 2020
Rochester, New York
ENTER:
________________________
CHARLES J. SIRAGUSA
United States District Judge
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