IN THE CASE OF
Jeffrey G. Toohey, Staff Sergeant
v.
UNITED
STATES, Respondent
No. 04-8019/MC
Crim. App. No. 200001621
Decided
Counsel
For Petitioner: Pro Se.
For Respondent: Lieutenant Frank L. Gatto, JAGC, USNR, and Commander R. P. Taishoff, JAGC, USN (on brief).
THIS OPINION IS SUBJECT TO
EDITORIAL
CORRECTION BEFORE FINAL PUBLICATION.
PER CURIAM:
This case involves a request for extraordinary
relief because of lengthy appellate delay.
Petitioner is confined as the result of a general court-martial
conviction for rape and assault. His
trial concluded on
BACKGROUND
A general court-martial found Petitioner
guilty of one specification of rape and one specification of assault in
violation of Articles 120 and 128 of the Uniform Code of Military
Justice.1 The
court-martial was first called to order on
The filings in this case establish the
following chronology:
Days Total
Elapsed Days
Since
Between
Sentence
Date
Event
Events
Adjudged
and
court-martial
adjourned
examined
by trial
counsel
authorizes
substitute
authentication
on
defense counsel
recommendation
served on
defense
counsel
Courts-Martial 1105
clemency
petition
response
to staff judge
advocate’s
recommendation
advocate’s
recommendation
published
correction
of alleged
post-trial
processing
errors
Appellate Review
Activity
receives
record of trial
of
Criminal Appeals (NMCCA)
dockets
appeal
for
appropriate relief
based
on post-trial delay
at
NMCCA
at
NMCCA
filed
at NMCCA
3 of NMCCA
for
appropriate relief
due
to appellate delay
appropriate
relief
The
transcript of Petitioner’s court-martial consists of 943 pages. The complete record of trial is spread over
eleven volumes.
This chronology demonstrates that
Petitioner has not received his first level appeal as of right more
than five
years and ten months after he was sentenced.
It also demonstrates that more than three years and eight months
have
passed since the Navy-Marine Corps Appellate Review Activity received
his case.
DISCUSSION
As we noted last term, “[t]his Court has
long recognized that an accused has the right to a timely review of his
or her
findings and sentence.”2 This includes a right to a reasonably timely
convening authority’s action,3 the
reasonably prompt forwarding of the record of trial to the service’s
appellate
authorities,4 and
reasonably timely
consideration by the military appellate courts.
In this case, lengthy delay occurred at each of those three
stages,
producing an on-going aggregate delay of almost six years.
The right to timely appellate review has
both statutory and constitutional roots.
A military appellant’s “right to a full and fair review of his
findings
and sentence under Article 66 embodies a concomitant right to have that
review
conducted in a timely fashion.”5 We have observed that the Courts of Criminal
Appeals’ unique powers and responsibilities “call[]
for, if anything, even greater diligence and timeliness than is found
in the
civilian system.”6 Additionally, the Due Process Clause
guarantees “a constitutional right to a timely review.”7
Other federal appellate courts have
similarly recognized a due process right to a reasonably timely appeal.8 The United States Court of Appeals for the
Sixth
Circuit has bluntly articulated the rationale for protecting against
unreasonable appellate delay: “An appeal
that needlessly takes ten years to adjudicate is undoubtedly of little
use to a
defendant who has been wrongly incarcerated on a ten-year sentence.”9 In its brief, the Government expressly
acknowledges that the “Due Process Clause guarantees the right to a
timely
appellate review of a court-martial.”
Federal courts generally consider four factors to determine
whether appellate delay violates an appellant’s due process rights: (1) length of the delay; (2) reasons for the
delay; (3) the appellant’s assertion of his right to a timely appeal;
and (4)
prejudice to the appellant.10 These factors are derived from the Supreme
Court’s speedy trial analysis in Barker v. Wingo.11
The first factor’s “length
of delay”
calculation includes time caused by “failures of []appointed
counsel and delays by the court” itself.12 The “length
of delay”
factor plays two roles. “First, the ‘length
of
the delay is to some extent a triggering mechanism,’ and
unless
there is a period of delay that appears, on its face, to be
unreasonable under
the circumstances, ‘there is no necessity for inquiry into the other
factors
that go into the balance.’”13 “Second, if
the constitutional inquiry has
been triggered,
the length of delay is itself balanced with the
other factors and may, in extreme circumstances, give rise to a strong
‘presumption
of evidentiary prejudice’ affecting the fourth Barker
factor.”14
The
first
step in evaluating appellate delay is to determine whether the “length
of
delay” triggering mechanism has been pulled.
This, in turn, requires us to consider a threshold question: How much delay
is too
much? The Tenth Circuit has adopted “a
presumption of inordinate delay” upon “a two-year delay in finally
adjudicating
a direct criminal appeal.”15 “[M]ost courts
evaluating such delay,”
however, “apply the first factor on a case-by-case basis.”16 Many factors can affect the reasonableness of
appellate delay. These include not only
such universal concerns as length of the record and complexity of the
issues,
but also military-unique considerations such as operational commitments
that
may delay transmission of the record to the Court of Criminal Appeals. These variables convince us that “there is no
talismanic number of years or months [of appellate
delay]
after which due process is automatically violated.”17 Whether appellate delay satisfies the first
criterion is best determined on a case-by-case basis.
In this case, Petitioner has made a threshold showing of “a
period of delay that appears, on its face, to be unreasonable under the
circumstances.”18 Without
analyzing the timeliness
of each step that has occurred since Petitioner’s court-martial ended
in August
1998, the aggregate delay facially appears to be unreasonable, even for
this
serious contested case. This conclusion
is consistent with civilian cases holding that six years of
appellate delay in non-capital felony cases satisfies the “length of
delay”
criterion, thereby requiring a full due process analysis.19 We are further convinced that this case
presents a prima facie case regarding length of delay because the
Government
has not attempted to defend the pace of Petitioner’s appeal.
Concluding that the aggregate delay in this case appears
facially unreasonable, however, is merely the beginning of the due
process
analysis. The optimal resolution of this
petition for extraordinary relief is to provide the
Allowing the
The
A second reason why we should allow the
DECISION
We grant in part and deny in part the petition for
extraordinary relief. We conclude that
Petitioner has made a threshold showing of an appearance of facially
unreasonable delay since the conclusion of his court-martial. We expect the Navy-Marine Corps Court of
Criminal Appeals to use its best efforts to render a decision on
Petitioner’s appeal
without delay. In deciding Petitioner’s
case, the
case
violated Petitioner’s Fifth Amendment right to due process. The court will also determine whether the
lengthy delay in this case warrants some form of relief.
The portion of the petition for extraordinary relief
requesting an order directing Petitioner’s release from confinement and
deferral of his sentence, or alternatively directing confinement credit
of not
less than 24 months, is denied at this time.
However, if the
1 10 U.S.C. §§ 920, 928 (1994).
2 Diaz v. Judge
Advocate General of the Navy,
59 M.J. 34, 37 (C.A.A.F. 2003).
3 See United
States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001) ("Appellant
has a
right to a speedy post-trial
review of his
case.").
4 See United States v. Dunbar, 31 M.J. 70,
73
(C.M.A. 1990) (calling delay in forwarding the record of trial to the
appellate
court “the least defensible of all” post-trial delay).
8 See generally Campiti
v. Matesanz, 186 F. Supp. 2d 29, 43 (D. Mass. 2002)(“Although the
Supreme Court has not addressed appellate delay in the due
process context, seven of the Courts of Appeals have held
that an
appellate
delay may constitute a due process violation under
some circumstances.”), aff’d, 333 F.3d 317 (1st Cir.), cert.
denied,
124 S. Ct. 346 (2003).
9
10 See,
e.g., id.; United States v. Hawkins, 78 F.3d 348,
350 (8th
Cir. 1996); Hill v. Reynolds, 942 F.2d 1494, 1497 (10th Cir.
1991); United
States v. Antoine, 906 F.2d 1379 (9th Cir. 1990); Simmons v.
Reynolds,
898 F.2d 865, 868 (2d Cir. 1990); Rheuark v. Shaw, 628 F.2d
297, 303-04
(5th Cir. 1981); United States v. Johnson, 732 F.2d 379, 381-82
(4th
Cir. 1980).
12 Simmons v. Beyer,
44 F.3d 1160, 1170 (2d Cir. 1995) (quoting Coe v. Thurman, 922
F.2d 528,
531 (9th Cir. 1990)). See also Taylor
v. Hargett, 27 F.3d 483, 486 n.2 (10th Cir. 1994) (attributing to
the state
the time during which the Oklahoma Court of Criminal Appeals
deliberated on the
case).
13 Smith,
94 F.3d at 208-09 (quoting Barker,
407
14
15 Harris v.
Champion, 15 F.3d 1538, 1560 (10th
Cir. 1994).
18 Smith,
94 F.3d at 208-09 (quoting Barker,
407
19 See, e.g., Simmons
v. Reynolds, 898 F.2d at 868; Mathis
v. Hood, 937 F.2d 790, 794 (2d Cir. 1991).
20
21 See,
e.g., United States v.
Luciano-Mosquera,
63 F.3d 1142, 1158 (1st Cir. 1995) (holding that relief for appellate
delay
requires a showing of prejudice, such as a demonstration that the delay
impaired the appeal or the defense in the event of retrial); Harris,
15
F.3d at 1563-64 (recognizing three typical forms of prejudice arising
from
appellate delay: (1) impairment of the grounds for appeal; (2) anxiety
supported by a colorable state or federal claim that would warrant
reversal of
the conviction or a reduction of sentence; and (3) oppressive
incarceration).
22 See
Art. 66(c), UCMJ, 10 U.S.C. § 866(c) (2000).
23 See generally United
States v. Tardif, 57 M.J. 219
(C.A.A.F. 2002).
CRAWFORD, Chief Judge (dissenting):
Petitioner
has raised the issue of post-trial delay before the court below and
that issue
is currently pending before the Court of Criminal Appeals.1 This
Court abuses its authority and its writ jurisdiction by directing the
lower
court to rule, and suggesting how it should rule, on an issue that is
already
properly before it on direct review. For
these reasons, I respectfully dissent.
The court below is
well aware of this Court’s jurisprudence in the area of post-trial
delay,2 and is quite capable of applying that jurisprudence to the
facts of this case. It is most
inappropriate for this Court to seek to influence the timetable and
decision-making process of a lower court while that court is
deliberating. A review of the docket of
any appellate court
would reveal that for understandable reasons, some cases take longer to
decide
than others. Further, the issue of
post-trial delay in this case is not the proper subject of a writ. We should not abuse our writ jurisdiction by
injecting this Court’s views on the substance of this issue into the
deliberations of the court below. This
amounts to an affront to the judicial independence of the judges below
by
seeking to influence their deliberations in this case.
If the Petitioner is not satisfied with the
decision of the court below, he can appeal that decision in the normal
course
of review.
On
This Court has recognized its authority to (1) “issue all writs necessary or appropriate in aid” of its jurisdiction when (2) “agreeable to the usages and principle of law.”4 Petitioner satisfies the first prong in relief of a jurisdiction when he establishes that this Court has potential jurisdiction over his appeal. However, he must also establish that the writ is “agreeable to usages and principles of law” by presenting evidence that the exercise of jurisdiction would be consistent with judicial economy;5 or that normal appellate review could not correct the illegality.6 There has been no showing of either in this case. Normal appellate review will suffice.
While
the Supreme Court has not addressed the constitutional right to a
speedy
criminal appeal, “[t]his Court has long recognized” the right to a
speedy
post-trial review of the findings and sentence in a court-martial.7 This Court partially based the
“constitutional right to a timely review guaranteed . . . [on] the Due
Process
Clause.”8 In Diaz,
the number of cases pending before the Defense Appellate Division was
noted. Now that backlog has shifted to
the Court of Criminal Appeals. As the
pleadings indicate, there are nearly 275 cases fully briefed and
pending before
the Court of Criminal Appeals. Nearly 40
of these cases have been fully briefed and pending for over a year. This is not a case where counsel has not been
appointed9 or an
instance where civilian counsel has
been appointed and has not been diligently trying to ease his/her
backlog.10
A number of federal courts have addressed the constitutional right to a speedy criminal appeal11 and have examined the four factors mentioned in the majority opinion. But this Court is not a factfinder and not in a position to determine whether there are reasonable or unreasonable delays in this case. Nor are we in a position to determine whether there has been “deliberate intent to harm the accused’s” rights to a speedy post-trial review versus “negligence or overcrowded courts.”12 Nor can we gather the post-trial information related to Petitioner’s confinement status and whether there is substantial prejudice. The court below is in a good position to evaluate “defendant’s acquiescence” in the delays that have taken place and evaluate whether Petitioner’s position to defend himself has been “impaired.”13 For these reasons I dissent and would deny the request for a writ.
1 IX. APPELLANT SUFFERED PREJUDICE DUE TO AN INORDINATE POST-TRIAL DELAY OF OVER 790 DAYS BETWEEN THE DATE OF TRIAL AND THE DATE THAT HIS CASE WAS FORWARDED TO THE NAVY-MARINE CORPS COURT OF CRIMINAL APPEALS FOR APPELLATE REVIEW.
2 United States v. Tardif,
57 M.J. 219 (C.A.A.F. 2002), a 3-2
opinion with Crawford, C.J., and Sullivan, S.J., dissenting.
3 10 U.S.C. §§ 920 and 928 (2000).
4
5
6 See, e.g., Collier v. United States, 19 C.M.A. 511, 42 C.M.R. 113 (1970).
7 Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F. 2003).
9 Cf. Taylor v. Hargett, 27 F.3d 483 (10th Cir. 1994).
10 Cf. Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995).
11 See,
e.g., Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 1994)(no violation of due process for eight-year
delay between a
conviction and appeal when no showing of actual prejudice); Heiser
v. Ryan,
15 F.3d 299, 303-04 (3d Cir. 1994)(absent showing of prejudice, 13-year
delay
did not violate due process).
12 Doggett v.