Summary
Habeas corpus; due process; unconscionable appellate delay; appointment of counsel. The Second Circuit vacated and remanded for appointment of counsel to allow a habeas petitioner to develop a due process claim based on an eight-year delay in his direct appeal, which the district court had not considered. The court held that the petitioner need not exhaust state remedies for this claim, as the state's ultimate affirmance did not moot the delay-based due process claim, and the record was insufficient for review without counsel.
Topics
Practice areas
Questions Presented
- Whether the district court erred in denying appointment of counsel to assist in preparing the habeas petition.
- Whether the petitioner exhausted state remedies for the due process claim based on appellate delay.
Holdings
- The district court should have appointed counsel to assist in preparing the habeas petition so that the due process claim for appellate delay could be properly considered.
- The petitioner need not have pursued further state remedies because the appellate delay was already resolved by the state court's affirmance, and the claim is not moot.
Key quotations
“We vacate and remand for appointment of counsel.” (at 219)
“We reject the State's contention that Elcock has not exhausted his remedies with respect to the due process claim.” (at 219)
Factual background
Elcock was convicted of second degree murder and first degree assault in 1978 and sentenced to 25 years to life. His direct appeal took over eight years to be decided by the Appellate Division. He filed a pro se habeas petition in 1989, which did not raise a due process claim for appellate delay. The district court denied the petition and sub silentio denied his motion for appointment of counsel.
Procedural history
Elcock was convicted in New York Supreme Court, Kings County, on September 7, 1978. His conviction was affirmed by the Appellate Division on May 18, 1987. He filed a pro se habeas petition under 28 U.S.C. § 2254 in the Eastern District of New York, which was denied on May 24, 1989. He appealed to the Second Circuit.
Remand instructions
We vacate the judgment and remand to the district court for appointment of counsel so that in due course the district court may give appropriate consideration to the claim, as the district court did in Mathis v. Hood, 1989 WL 46662, 1989 U.S.Dist. LEXIS 4545 (S.D.N.Y. April 28, 1989), and determine what relief, if any, may be available.