Robert Richards v. Henry Bellmon, Executive Chief of The Oklahoma Legislature and E. Alvin Schay, Chief Appellate Public Defender of Oklahoma, 941 F.2d 1015, 10th Cir. (1991)
Robert Richards v. Henry Bellmon, Executive Chief of The Oklahoma Legislature and E. Alvin Schay, Chief Appellate Public Defender of Oklahoma, 941 F.2d 1015, 10th Cir. (1991)
Robert Richards v. Henry Bellmon, Executive Chief of The Oklahoma Legislature and E. Alvin Schay, Chief Appellate Public Defender of Oklahoma, 941 F.2d 1015, 10th Cir. (1991)
2d 1015
590, 100 L.Ed. 891 (1956)). Plaintiff finally claims that the delay violates art.
II, 6 of the Oklahoma Constitution.1
2
Plaintiff was convicted in state court for the unlawful delivery of a narcotic and
sentenced on April 18, 1990, to fifty-years imprisonment. A petition in error
was filed in the Oklahoma Court of Criminal Appeals on October 17, 1990.
Court-appointed appellate counsel received (1) a thirty-day extension to file the
original record and transcripts and thereafter, (2) a 360-day extension, until
November 13, 1991, to file his opening brief. To date, eight months has elapsed
since counsel was to perfect the appeal by filing the original record and
transcripts. See Okla.Ct.Crim.App.R. 2.1(C) & 3.2. On October 17, 1990,
defendant was informed by the Oklahoma Appellate Public Defender System
that it had only five full-time lawyers trying to handle all Oklahoma noncapital
appeals and that "it may be 3 years or more before your brief can be filed in the
Court of Criminal Appeals." I R. doc. 2, ex. 2.
The district court determined that plaintiff lacked article III standing because of
an insufficient likelihood of substantial and immediate irreparable injury. I R.
doc. 17 at 5. The prediction by the Oklahoma Appellate Public Defender
System of a three-or-more-year delay in filing plaintiff's brief was considered
"speculative" by the district court, notwithstanding that the Oklahoma Court of
Criminal Appeals had noticed such delay. See Manous v. State, 797 P.2d 1005
(Okla.Crim.App.1990). The Oklahoma Court of Criminal Appeals briefly
discussed the State and federal constitutional implications of the problem, but
concluded that it was powerless to effect a cure and it declined to order the
appellate public defender to prepare and file briefs without further delay. Id. at
1005.
This Court is aware of the delay relative to the handling of appeals by the
Appellate Public Defender's office. It is obvious that the office is understaffed
to handle the number of appeals that are presently being handled by the office
but due to a lack of funding by the State, the office is apparently doing the best
that they [sic] can under the circumstances. We are powerless to cure this
problem. It can only be cured by the legislature through the use of its budgetary
powers. Petitioner is not entitled to have his appeal handled prior to others who
are in similar circumstances and have been delayed even longer.
Id. at 1005-06. Relying upon the fact that plaintiff is serving a fifty-year
sentence and the supposition that "no further delays are anticipated [past the
November 1991 extension]" the district court found no injury or prejudice
which would confer standing. In the alternative, if the plaintiff had standing,
the district court determined that the lack of funding and the backlog of appeals
in the Oklahoma Appellate Public Defender System justified some delay, and
the delay could not be presumed prejudicial given the length of plaintiff's
sentence. Finally, the district court found plaintiff's complaint wanting because
he failed to allege "that non-indigent defendants are not granted extensions of
time to file their appeals." I R. doc. 17 at 6. According to the district court,
plaintiff had merely alleged "that if he could afford to retain counsel his appeal
brief might be filed sooner," and that was not enough. Id.
6
The district court also erred in light of supervening authority. The substantive
portion of the district court's analysis must be reevaluated in light of Harris v.
Champion, 938 F.2d 1062, on reh'g, 938 F.2d 1071 (10th Cir.1991). In Harris,
we considered claims of inordinate delay in the Oklahoma appellate system
with reference to federally protected rights and remanded the case to the district
court (Northern District of Oklahoma) for a hearing on the delay. Id. at 1071.
We also remanded two habeas cases on appeal from the Western District of
Oklahoma for reconsideration in light of Harris. Id. See also Bunton v. Cowley,
No. 90-6316, unpub. order at 2 (10th Cir. June 17, 1991) [936 F.2d 582 (table) ]
& Hacker v. Saffle, No. 91-6042, unpub. order at 2 (10th Cir. June 17, 1991)
[936 F.2d 583 (table) ].
We conclude that this case also should be remanded to the Western District of
Oklahoma in light of Harris even though plaintiff seeks only declaratory and
injunctive relief under 1983 and Harris involved a habeas petition under 28
U.S.C. 2254. As a general rule, a challenge to the fact of conviction or
confinement, or the duration of confinement, is cognizable only under the
habeas statute with its requirement of exhaustion of state remedies. Preiser v.
Rodriguez, 411 U.S. 475, 499-500, 93 S.Ct. 1827, 1841-42, 36 L.Ed.2d 439
(1973); 28 U.S.C. 2254(b). On the other hand, a challenge to the conditions
of confinement is cognizable under 1983, which does not have a similar
exhaustion requirement. Id. Thus, although 1983 is not available when a state
prisoner seeks a release from or reduction of confinement, it is available when a
Plaintiff's claim is simple and straightforward; he did not ask for release from
state custody, and his complaint may properly proceed under 1983. See
Gerstein v. Pugh, 420 U.S. 103, 107 n. 6, 95 S.Ct. 854, 859 n. 6, 43 L.Ed.2d 54
(1975). See also Greenholtz v. Inmates of the Neb. Penal & Correctional
Complex, 442 U.S. 1, 3, 99 S.Ct. 2100, 2102, 60 L.Ed.2d 668 (1979) ( 1983
due process challenge to parole procedures). He seeks only a prompt
determination of his appeal. This is not a case in which plaintiff's selection of
1983 would undermine the exhaustion requirement of 2254,2 and we are
reluctant to interfere with plaintiff's tactical choice and impose a requirement
that he also must proceed under 2254.3 The Second Circuit has recognized the
possibility of a subsequent 1983 suit for damages based upon a constitutional
violation associated with an untimely (and ultimately unsuccessful) appeal.
Simmons v. Reynolds, 898 F.2d 865, 869 (2d Cir.1990). In this case, plaintiff
seeks prospective equitable relief beyond the scope of habeas. See Harris, 938
F.2d 1062, 1070 (discussing habeas relief); Simmons, 898 F.2d at 868-69
(discussing relief under 1983 as appropriate under 28 U.S.C. 2243 in
unusual circumstances).
10
On remand, defendants may answer the complaint and assert any applicable
defenses. When considering the proper course on remand, the district court
should be mindful of the statements contained in our order on rehearing in
Harris, 938 F.2d at 1073.
11
Defendants-appellees notified the court that they would not file a response
brief. After examining the brief submitted by plaintiff-appellant and the
appellate record, this panel has determined unanimously that oral argument
would not materially assist the determination of this appeal. See Fed.R.App.P.
34(f); 10th Cir.R. 34.1.2. The case therefore is submitted without oral argument
See Harper v. Jeffries, 808 F.2d 281, 285 (3rd Cir.1986); Parkhurst v.
Wyoming, 641 F.2d 775, 777-78 (10th Cir.1981). See generally P. Bator, D.
Meltzer, P. Mishkin & D. Shapiro, The Federal Courts & The Federal System,
1649-51 (3rd ed. 1988)
under 1983 and 2254 borders on advocacy and could interfere with a
possible tactical choice by the plaintiff. We decline to do so.