Filed: Jul. 02, 2004
Latest Update: Mar. 26, 2017
Summary: of a court-martial.reasonableness of appellate delay. 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.
IN THE CASE OF
Jeffrey G. Toohey, Staff Sergeant
United States Marine Corps, Petitioner
v.
UNITED STATES, Respondent
No. 04-8019/MC
Crim. App. No. 200001621
United States Court of Appeals for the Armed Forces
Decided July 2, 2004
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.
Toohey v. United States, No. 04-8019/MC
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 August 13, 1998. He has
challenged his conviction and sentence in his direct appeal to
the Navy-Marine Corps Court of Criminal Appeals. However,
almost six years after his conviction, Petitioner’s first-level
appeal as of right remains unresolved.
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 May 21, 1998, and adjourned on August 13, 1998. The members
sentenced Petitioner to confinement for 12 years, reduction
to pay-grade E-1, forfeiture of all pay and allowances, and a
dishonorable discharge. The convening authority approved the
sentence as adjudged and, with the exception of the dishonorable
discharge, ordered it executed.
1
10 U.S.C. §§ 920, 928 (1994).
2
Toohey v. United States, No. 04-8019/MC
The filings in this case establish the following
chronology:
Days Total
Elapsed Days Since
Between Sentence
Date Event Events Adjudged
Aug. 13, 1998 Sentence adjudged -- --
and court-martial
adjourned
Apr. 29, 1999 Record of trial 259 259
examined by trial
counsel
June 28, 1999 Military judge 60 319
authorizes substitute
authentication
Sep. 28, 1999 Record of trial served 92 411
on defense counsel
Oct. 24, 1999 Staff judge advocate’s 26 437
recommendation served on
defense counsel
Oct. 28, 1999 Defense submits Rule for 4 441
Courts-Martial 1105
clemency petition
Nov. 24, 1999 Defense submits 27 468
response to staff judge
advocate’s recommendation
May 15, 2000 Addendum staff judge 173 641
advocate’s
recommendation published
May 18, 2000 Convening authority acts 3 644
Sep. 20, 2000 Petitioner requests 125 769
correction of alleged
post-trial processing
errors
3
Toohey v. United States, No. 04-8019/MC
Oct. 11, 2000 Navy-Marine Corps 21 790
Appellate Review Activity
receives record of trial
Oct. 26, 2000 Navy-Marine Corps Court 15 805
of Criminal Appeals (NMCCA)
dockets appeal
Feb. 14, 2001 Defense files motion 111 916
for appropriate relief
based on post-trial delay
Mar. 28, 2002 Petitioner’s brief filed 407 1323
at NMCCA
Dec. 6, 2002 Government’s brief filed 253 1576
at NMCCA
Feb. 6, 2003 Petitioner’s reply brief 62 1638
filed at NMCCA
Feb. 11, 2003 Case submitted to Panel 5 1643
3 of NMCCA
Jan. 13, 2004 Petitioner files motion 336 1979
for appropriate relief
due to appellate delay
Jan. 29, 2004 NMCCA denied motion for 16 1995
appropriate relief
July 2, 2004 This opinion issued -- 2150
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
4
Toohey v. United States, No. 04-8019/MC
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
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).
5
Diaz, 59 M.J. at 37-38.
5
Toohey v. United States, No. 04-8019/MC
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
6
Id. at 39.
7
Id. at 38.
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
United States v. Smith, 94 F.3d 204, 207 (6th Cir. 1996).
6
Toohey v. United States, No. 04-8019/MC
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
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).
11
407 U.S. 514, 530 (1972).
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 U.S. at 530).
7
Toohey v. United States, No. 04-8019/MC
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.
14
Id. at 209 (quoting Doggett v. United States, 505 U.S. 647,
657 (1992)).
15
Harris v. Champion, 15 F.3d 1538, 1560 (10th Cir. 1994).
16
Smith, 94 F.3d at 209.
17
Coe, 922 F.2d at 531.
8
Toohey v. United States, No. 04-8019/MC
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 Navy-Marine Corps
Court, in the first instance, with the task of evaluating the
four appellate delay factors to determine whether a due process
18
Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530).
19
See, e.g., Simmons v. Reynolds, 898 F.2d at 868; Mathis v.
Hood, 937 F.2d 790, 794 (2d Cir. 1991).
9
Toohey v. United States, No. 04-8019/MC
violation has occurred and, if so, to determine an appropriate
remedy.
Allowing the Navy-Marine Corps Court to perform this task
is appropriate for at least two reasons. First, the information
available to us in this extraordinary relief litigation is
sparse. While the filings in this Court establish the length of
the delay and Petitioner’s repeated assertion of his right to a
timely appeal, they shed little light on the reasons for the
delay or the resulting prejudice to Petitioner. We have
recognized that where important facts necessary to resolve an
issue are unavailable, “a remand to establish a factual record
normally [is] required.”20
The Navy-Marine Corps Court possesses Petitioner’s record
of trial, has access to the issues Petitioner has raised on
appeal, and can evaluate the strength of those issues. That
court is well-placed to make the initial determination of
whether Petitioner’s due process rights have been violated.
Additionally, if we were to order that the eleven-volume record
and appellate papers be filed here for our own analysis of these
factors, we would interfere with the very goal of this
litigation: the prompt resolution of Petitioner’s case before
the Navy-Marine Corps Court.
20
United States v. Haney, 45 M.J. 447, 448 (C.A.A.F. 1996).
10
Toohey v. United States, No. 04-8019/MC
A second reason why we should allow the Navy-Marine Corps
Court to resolve this issue arises from that court’s unique
powers under Article 66(c). Prejudice is a clear requirement
for an Article III court to provide relief for unreasonable
post-trial delay.21 Our review involves a determination of
whether a prejudicial error of law occurred. The Courts of
Criminal Appeals, however, possess broader powers.22 They may
issue relief upon a finding that lengthy delay following a
court-martial conviction renders some portion of the findings or
sentence inappropriate.23 Even if it finds that the delay in
this case does not rise to the level of a prejudicial error of
law--a matter about which we express no opinion--the Navy-Marine
Corps Court has the authority to nevertheless conclude that some
form of relief is appropriate.
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).
11
Toohey v. United States, No. 04-8019/MC
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 Navy-Marine Corps
Court will determine whether the lengthy delay in this
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 Navy-Marine Corps Court
fails to issue a decision in this case within 90 days of this
opinion, we invite Petitioner to notify us of that fact and seek
further relief.
12
Toohey v. United States, No. 04-8019/NA
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
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.
Id. at 225, 228.
Toohey v. United States, No. 04-8019/NA
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 August 13, 1998, contrary to his pleas, Petitioner was
convicted, by a panel composed of officer and enlisted members,
of rape and assault in violation of Articles 120 and 128,
Uniform Code of Military Justice (UCMJ).3 The members sentenced
him to confinement for 12 years, forfeiture of all pay and
allowances, reduction to the lowest enlisted grade, and a
dishonorable discharge. On May 18, 2000, the convening
authority approved the findings and sentence.
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
3
10 U.S.C. §§ 920 and 928 (2000).
4
United States v. Frischolz, 16 C.M.A. 150,
36 C.M.R. 306
(1966).
2
Toohey v. United States, No. 04-8019/NA
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
5
Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983).
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).
8
Id. at 38.
9
Cf. Taylor v. Hargett, 27 F.3d 483 (10th Cir. 1994).
3
Toohey v. United States, No. 04-8019/NA
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.
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. United States, 505 U.S. 647, 658 (1992).
13
Id. at 658 n.4.
4
