IN THE CASE OF
Jeffrey G. Toohey, Staff Sergeant
UNITED STATES, Respondent
Crim. App. No. 200001621
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.
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
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
court-martial was first called to order on
The filings in this case establish the
Elapsed Days Since
Date Event Events Adjudged
examined by trial
on defense counsel
recommendation served on
response to staff judge
correction of alleged
Appellate Review Activity
receives record of trial
of Criminal Appeals (NMCCA)
for appropriate relief
based on post-trial delay
filed at NMCCA
3 of NMCCA
for appropriate relief
due to appellate delay
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.
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;
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
analysis. The optimal resolution of this
petition for extraordinary relief is to provide the
A second reason why we should allow the
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
without delay. In deciding Petitioner’s
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
less than 24 months, is denied at this time.
However, if the
1 10 U.S.C. §§ 920, 928 (1994).
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).
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).
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).
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.
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.
the Supreme Court has not addressed the constitutional right to a
criminal appeal, “[t]his Court has long recognized” the right to a
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
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
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
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.
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).