Washington v. Sobina , 387 F. Supp. 2d 460 ( 2005 )

387 F. Supp. 2d 460 (2005)

Richard A. WASHINGTON, Petitioner,
v.
Raymond J. SOBINA, et al., Respondent.

No. 02-CV-7474.

United States District Court, E.D. Pennsylvania.

September 12, 2005.

Hope Lefeber, Jules Epstein, Kairys, Rudovsky, Epstein & Messing, LLP, Philadelphia, PA, for Petitioner.

Paul D. Henriksen, Thomas W. Dolgenos, District Attorney's Office, Philadelphia, PA, for Respondent.

MEMORANDUM AND ORDER

ANITA B. BRODY, District Judge.

Petitioner Richard A. Washington ("Washington") petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. I referred the petition to United States Magistrate Judge Diane M. Welsh for a Report and Recommendation ("R & R") in accordance with 28 U.S.C. § 636(b)(1)(B). The R & R recommended that I grant the petition in part and deny the petition in part. The parties filed objections. For the reasons set forth below, I will overrule petitioner's and respondent's objections, adopt the R & R as supplemented by this Memorandum,^[1] and grant in part and deny in part the petition for a writ of habeas corpus.

I. Background

Washington has already had three trials and is facing a fourth. The first trial ended in a mistrial. In the second trial, the jury convicted Washington on three counts of the indictment, acquitted him on several counts, and was unable to reach a verdict on the remaining counts of murder and kidnaping. Washington was sentenced on the counts for which he was convicted. Washington's third trial resulted in a hung jury, and Washington currently awaits his fourth trial.

The R & R recited the factual and procedural background of Washington's case available to the court at that time.^[2] I decided to hold an evidentiary hearing based on Washington's objections and the absence of the complete state court record.^[3] In preparation for the hearing, the government provided a complete copy of the Pennsylvania Superior Court Quarter Sessions File along with other documents the government believed to be relevant. In addition, I received Washington's testimony at the evidentiary hearing, and, pursuant to the parties' agreement, I received two affidavits, supplemental documentary evidence, and additional briefing from the parties subsequent to the evidentiary hearing.^[4] I have developed the chronology below as a helpful tool to examine the issues before me.

A. Time Preceding Washington's First Trial^[5]

December 18, 1995     Washington was arrested in connection
with the kidnaping of
Asha Woodall and shooting of
Anthony Carney on February
18, 1994 in Philadelphia County.
Commonwealth v. Washington,
No. 9603-0210, slip op. at 1-2
(Pa.Ct.C.P. Aug. 23, 2004) (
"Washington, PCRA Opinion of
8/23/04").

April 8, 1996         The state trial court appointed
Charles P. Mirarchi, III
("Mirarchi") as trial counsel for
Washington. (Post Hr'g Mem.
Supp. Pet'r's Mot. Ex. 1 at 1.)
April 18, 1997        The state court received a pro se
motion from Washington requesting
dismissal or release
from custody pursuant to Rule
1100(e), (g) of the Pennsylvania
Rules of Criminal Procedure
and "the Fifth and Fourteenth
Amendment right against trial
delay." (Pa.Super. Ct. Quarter
Sessions File Mot. 4/18/97.)
July 29, 1997         Washington's first trial began.
(Post Hr'g Mem. Supp. Pet'r's
Mot. Ex. 1 at 4.)
August 6, 1997        A mistrial was declared.[6](Id.)

Of the continuances requested leading up to the first trial, only one two-day continuance is identified on the state court docket as a request by the prosecution. (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 1 at 1-4.) The R & R stated "the bulk of the continuances were sought by [Mirarchi]. The delay he caused... amounts to approximately eight months." (R & R at 13.) Neither party objected to this finding and it is supported by the state court docket sheet. (See Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 1.) Washington has presented no evidence that the prosecution caused any delay deliberately to hamper the defense.

B. Time Preceding Washington's Second Trial

December 12, 1997     The state court released Washington
on his own recognizance under
Rule 1100. (R & R at 15.)[7]December 10, 1998     Washington's second trial began.
(Post Hr'g Mem. Supp. Pet'r's
Mot. Ex. 1 at 5.)
December 22, 1998     The jury returned a verdict. (Id.)
The jury convicted him of some
charges, acquitted him of some
charges, and was unable to reach
a verdict as to some charges.[8](Pa.Super. Ct. Quarter Sessions
File Verdict Report 12/22/98.)
February 16, 1999     Washington was sentenced to a
term of incarceration of five to
ten years on the three charges
for which he was convicted. Id.
at 4.

In the first trial, a 911 tape was introduced into evidence, but that tape disappeared between the first and second trial, so a transcript of the tape was entered into evidence in Washington's second trial. (Tr. 2/6/03 at 5.)^[9]

Between the first and second trials, the prosecution requested at least one continuance because of difficulty locating a witness, and the defense requested at least one continuance because Mirarchi, trial counsel for Washington, had surgery. (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 1 at 4.) At least one continuance was attributable to the court. (Id.) The remainder of the delay is unexplained. (R & R at 15.) Again, Washington has presented no evidence that the prosecution caused any delay deliberately to hamper the defense.

C. Time Preceding Washington's Third Trial

February 19, 1999     Washington filed a pro se post-sentence
motion contesting his
sentence without his attorney's
knowledge. (Resp't's Objections
Ex. 2 & Ex. 7; see also Post Hr'g
Mem. Supp. Pet'r's Mot. Ex. 2 at
6.)
March 5, 1999         Washington filed a counseled notice
of appeal from his judgment
of sentence entered on February
16, 1999. The notice of appeal
was stamped "Received Accepted
For Review Only Mar 5 1999
Criminal Appeals Unit First Judicial
District of PA." (Post Hr'g
Mem. Supp. Pet'r's Mot. Ex. 3;
Post Hr'g Mem. Supp. Pet'r's
Mot. Ex. 3.)[10]March 15, 1999        The trial judge ordered Washington
to file a concise statement of
matters complained of on appeal.
(R & R at 2; see also Post
Hr'g Mem. Supp. Pet'r's Mot.
Ex. 2 at 5a.) The letter stated,
"Upon receipt of your reply to
this order, I will write my Opinion
forthwith." (Pa. Super Ct.
Quarter Sessions File Letter
3/15/99.)
April 26, 1999        The state court denied Washington's
post-sentence motion contesting
his sentence. (R & R at
2; see also Post Hr'g Mem.
Supp. Pet'r's Mot. Ex. 2 at 6.)
April 30, 1999        The state court issued a document
titled "Order" that contained a
brief procedural history of Washington's
filings after his sentencing
but included no other statements.[11]November 8, 2001      Washington filed a "Petition for
Writ of Habeas Corpus, and/or
Motion to Dismiss Due Pa.Crim.
P. Rule 600" in the Superior
Court of Pennsylvania. In this
petition he argued that he was
being held contrary to the time
limits proscribed by state law,
and in the last paragraph Washington
added, "which violates
constitutional rights to speedy
trial and due process." (Post
Hr'g Mem. Supp. Pet'r's Mot.
Ex. 5.)
January 30, 2002      The Superior Court denied the habeas
petition[12]with the explanation
that only the Supreme
Court of Pennsylvania had jurisdiction
to issue a writ on a
lower court when no appeal was
pending.[13](Post Hr'g Mem.
Supp. Pet'r's Mot. Ex. 7.)

February 19, 2002     Washington filed a federal petition
for a writ of habeas corpus alleging
that his Sixth Amendment
right to a speedy trial and his
due process right to a speedy
appeal had been denied. (R & R
at 3.)
March 12, 2002        Washington filed another state petition
for a writ of habeas corpus
in the Supreme Court of Pennsylvania
alleging the violation of
his constitutional rights to a
speedy trial, direct appeal and
due process along with the violation
of his state rights. (Post
Hr'g Mem. Supp. Pet'r's Mot.
Ex. 6.)[14]June 4, 2002          The Supreme Court of Pennsylvania
dismissed Washington's
state habeas petition.[15]
June 19, 2002         Because the parties did not inform
me that the Supreme Court of
Pennsylvania dismissed Washington's
state habeas petition on
June 4, 2002, I adopted the Report
and Recommendation of the
magistrate judge and dismissed
Washington's federal petition for
non-exhaustion. (R & R at 3.)
September 3, 2002     Washington wrote to three judges
requesting that his retrial be
scheduled. Washington, PCRA
Opinion of 8/23/04 at 6.
September 15, 2002    Washington wrote a letter to his
trial counsel, Mirarchi, informing
Mirarchi that Washington
would be sending complaints to
the state court, the Bar Association,
and the Disciplinary Board
due to Mirarchi's failure to move
for dismissal based on Washington's
right to a speedy trial or
push for a timely retrial.
(Pa.Super. Ct. Quarter Sessions
File Letter 9/15/02.)[16]
September 25, 2002    Washington filed the federal petition
for a writ of habeas corpus
that is currently before me.[17]
November 8, 2002      I referred Washington's federal habeas
petition to United States
Magistrate Judge Diane M.
Welsh for an R & R.
November 13, 2002     I appointed counsel for Washington
for the federal habeas proceeding.
February 6, 2003      Following oral argument, the state
trial judge denied Washington's
motion to dismiss the pending
criminal charges in state court
pursuant to Pennsylvania Rule
of Criminal Procedure 600,[18]which is a speedy trial provision.
(Tr. 2/6/03 at 19.)
February 10, 2003     Washington's third trial began for
the remaining charges in the indictment.
(Post Hr'g Mem.
Supp. Pet'r's Mot. Ex. 2 at 8.)
February 21, 2003     The trial judge declared a hung
jury. (Id.)

Between the second and third trials, Washington requested at least two continuances, which account for approximately four months of delay. (R & R at 16; see also Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 2 at 7-8.) There is no evidence that the prosecution requested any continuances. (Id.) The remainder of the delay appears to be attributable to the court.^[19] (Id.) Washington has presented no evidence that the prosecution caused any delay deliberately to hamper the defense.

D. Time Preceding Washington's Upcoming Fourth Trial

March 26, 2003        The government filed a response to
Washington's federal habeas
petition.
August 11, 2003       Washington filed a pro se Post
Conviction Relief Act ("PCRA")
petition in state court arguing
that he was denied his right to
appeal. Washington, PCRA
Opinion of 8/23/04 at 6-7.
October 10, 2003      The state court received a pro se
letter from Washington to which
he attached a motion entitled
"Application for Leave to File
Post-Sentence Motion Nunc Pro
Tunc and Request for Nominal
Bail Pending Appeal" asserting
that his notice of appeal is still
pending, and he has been denied
his constitutional right to direct
appeal among other rights.
(Pa.Super. Ct. Quarter Sessions
File Letter 10/10/03 Ex. 1 at 2.)
October 16, 2003      Washington filed a counseled
amendment to his federal petition
for writ of habeas corpus
pursuant to the court's order.
January 27, 2004      Washington filed a counseled memorandum
of law in support of his
federal habeas petition pursuant
to the court's order.
March 4, 2004         The government filed a response to
Washington's memorandum of
law in support of his federal
habeas petition pursuant to the
court's order.
April 6, 2004         Judge Welsh issued the R & R for
Washington's federal habeas
petition.
April 26, 2004        The government filed timely objections
to the R & R in federal
court.
May 12, 2004          Washington filed an amended
PCRA petition.[20]Washington,
PCRA Opinion of 8/23/04 at 6.[21]
June 3, 2004          Washington filed objections to the
R & R in federal court.[22]
June 7, 2004          I granted Washington's motion to
dismiss counsel.
June 11, 2004         The Board of Probation and Parole
issued the following decision after
interviewing Washington and
reviewing his file: "A DECISION
IN YOUR CASE IS
PENDING: DISPOSITION OF
CRIMINAL CHARGES — PHILA
MURDER, VUFA PENDING
CHARGES." (Notice of
Board Decision 6/11/04.)
June 22, 2004         The Pennsylvania Court of Common
Pleas dismissed Washington's
PCRA claims as untimely.
Washington, PCRA Opinion of
8/23/04 at 6.
June 24, 2004         Washington requested a continuance
in state court for two reasons:
"(a) Mr. Washington was
concerned about the recent publicity
concerning his trial attorney's
own legal troubles, and (b)
Mr. Washington did not want to
go forward until his federal habeas
matter was completed."[23](Aff. Conroy ¶ 8.)
July 6, 2004          Washington appealed the dismissal
of his PCRA petition to the
Pennsylvania Superior Court.
Washington, PCRA Opinion of
8/23/04 at 6; ( see also Resp't's
Post Hr'g Br. Ex. D at 4.)
July 14, 2004         Washington filed supplemental objections
to the R & R in federal
court after the date specified in
the R & R for timely objections,
because he had not received the
R & R by the date on which his
objections were due.[24]

August 23, 2004       The PCRA court issued an opinion
explaining its dismissal of
Washington's PCRA petition.[25]Washington, PCRA Opinion of
8/23/04.
December 9, 2004      Upon determining that an evidentiary
hearing would be necessary
to decide the issues in Washington's
federal habeas petition, I
appointed counsel for Washington
so that he could prepare for
the evidentiary hearing.
December 16, 2004     I issued an order scheduling an
evidentiary hearing regarding
Washington's federal habeas
claims.[26]
January 18, 2005      I presided over the first scheduled
evidentiary hearing and determined,
upon consultation with
the parties, that another evidentiary
hearing would be necessary.
The government requested
permission to respond to
Washington's supplemental
objections to the R & R, and I
granted permission.
January 24, 2005      The government filed a response to
Washington's supplemental
objections.
January 25, 2005      The Board of Probation and Parole
reaffirmed their decision of June
11, 2004 to postpone decision
pending disposition of the
remaining charges.[27]February 17, 2005     Washington wrote a letter to his
trial attorney, Mirarchi, asking
him to postpone the state trial
scheduled for March 8, 2005.
(Resp't's Post Hr'g Brief Ex. C.)
May 20, 2005          I presided over the second evidentiary
hearing regarding Washington's
federal habeas claims.
Washington testified at the hearing.
I granted the parties permission
to file two additional affidavits
each accompanied by a
brief and supplemental documentary
evidence.[28]
June 10, 2005         The government filed a post-hearing
brief discussing Washington's
federal habeas claims.
June 13, 2005         Washington filed a post-hearing
brief in support of his federal
habeas claims and attached,
among other documents, the affidavit
of Charles P. Mirarchi, III,
Esq.
June 15, 2005         The government filed the affidavit
of Jude D. Conroy, Esq. to supplement
the evidence presented
at the evidentiary hearing for
Washington's federal habeas
claims.

Between the third trial and the issuance of the R & R, Washington requested continuances which accounted for at least a month of the delay. (R & R at 21.) Subsequent to the issuance of the R & R, Washington has requested at least two additional continuances. (Pa.Super. Ct. Quarter Sessions File Status Sheet 6/24/04 (continuing trial until 11/15/04); Aff. Conroy ¶ 10 (stating that on 11/15/04, Washington, through trial counsel, requested a continuance of his state court trial, stating that Washington did not want to go forward with his trial until his federal habeas matter was completed).) In addition, Mirarchi makes the following statement in his affidavit:

Throughout my representation of Mr. Washington, I have always known that I could request reassignment to the trial pool and another available Judge to avoid trial delays. However, it has consistently been my trial strategy and tactic to keep the case before Judge Poserina rather than risk a chance reassignment to another Judge.

(Aff. Mirarchi ¶ 12.)

II. Standard of Review

Where a petition for a writ of habeas corpus has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report ... to which objection is made ... [The court] may accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate." 28 U.S.C. § 636(b).^[29] The judge may also "receive further evidence or recommit the matter to the magistrate judge with instructions." Id.

III. Discussion

The two claims presented in Washington's amended habeas petition are (1) a Sixth Amendment speedy trial claim, and (2) a due process speedy appeal claim.^[30] The R & R concluded that Washington exhausted his claims, and recommended that I deny the petition as to Washington's speedy trial claim and grant the petition as to Washington's speedy appeal claim. Both parties have objected to the findings in the R & R. After a review of all the evidence, I conclude that Washington has exhausted his claims, that his right to a speedy trial has not been violated, and that his right to a speedy appeal has been violated.

A. Exhaustion

In the R & R, the court concluded that Washington exhausted both his speedy trial and his speedy appeal claims. The R & R stated that Washington fairly presented his claims to the state courts in his state habeas petition filed in the Supreme Court of Pennsylvania on March 12, 2002.^[31] I agree with the conclusion in the R & R.^[32] To the extent that the government's argument regarding exhaustion is based on its argument that Washington never properly filed a notice of appeal and that no appeal is currently pending, I will address that argument when I address Washington's speedy appeal claim.

B. Washington's Right to a Speedy Trial

Washington raised the following objections to the R & R's conclusion that there was no speedy trial violation: first, the court used the wrong method to analyze Washington's speedy trial claim; and second, the court did not know all of the facts relevant to Washington's speedy trial claim.

1. Method of Analyzing Washington's Speedy Trial Claim

As a preliminary matter, Washington contends that in weighing the four speedy trial factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972),^[33] the court should treat the time that Washington has been waiting for a verdict as one long delay rather than looking separately at the period of time leading up to each of Washington's four trials. The R & R appropriately treated Washington's speedy trial claim as four separate speedy trial claims.

It is not a violation of double jeopardy to have four trials under the circumstances of this case. Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S. Ct. 732, 154 L. Ed. 2d 588 (2003) (quoting Richardson v. United States, 468 U.S. 317, 324, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984) as holding that normally "a retrial following a `hung jury' does not violate the Double Jeopardy Clause"); see also United States v. Rivera, 384 F.3d 49, 54-55 (3d Cir.2004) (stating that there is ordinarily no double jeopardy if a mistrial is granted on defendant's motion, and there is no double jeopardy if a mistrial is required by manifest necessity); Government of the Virgin Islands v. Smith, 558 F.2d 691, 696 (3d Cir.1977) (holding that "three successive trials for the same offense are not prohibited where the declarations of mistrial were justified by manifest necessity"). Because each retrial is legally appropriate and not a result of misconduct by the government, consolidating the periods of time leading up to each trial might inappropriately exaggerate the delay for speedy trial purposes.^[34] Therefore, it is appropriate to evaluate Washington's speedy trial claim separately as to each trial.

2. Circumstances Permitting an Evidentiary Hearing

Washington's supplemental objections also argue that some facts relevant to the speedy trial claim were absent from the portions of the record that were available to the court when it issued the R & R.^[35] I determined that an evidentiary hearing would be helpful to resolving those objections.

The Antiterrorism and Effective Death Penalty Act (AEDPA) permits evidentiary hearings on habeas review in certain circumstances. See 28 U.S.C. § 2254(e). While AEDPA provides only limited circumstances in which a hearing is permitted when the petitioner "has failed to develop the factual basis of a claim in State court proceedings," 28 U.S.C. § 2254(e)(2), those limitations do not apply if the petitioner is not at fault for the lack of a factual record in state court. Williams v. Taylor, 529 U.S. 420, 431-37, 120 S. Ct. 1479, 146 L. Ed. 2d 435 (2000). If the habeas petitioner was "unable to develop his claim in state court despite diligent effort," § 2254(e)(2) will not bar an evidentiary hearing in federal court. Id. at 437, 120 S. Ct. 1479. In exercising the discretion to hold an evidentiary hearing, "courts focus on whether a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner's claim." Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.2000).

In the case before me, Washington sought relief in the state court by filing state petitions for habeas corpus. Because both the Pennsylvania Superior Court and the Pennsylvania Supreme Court denied his petitions without holding a hearing, Washington did not have the opportunity to develop the factual basis for his speedy trial claim in those proceedings. Furthermore, Washington could not develop the entire factual basis for his speedy trial claim at the time he presented his state habeas petitions because neither his third trial nor his fourth trial had been held. Shortly after the state courts denied Washington's state habeas petitions, Washington filed the federal habeas petition that is currently before me. Therefore, it cannot be said that Washington "failed" to develop the factual basis for his claim in state court. Based on Washington's objections and the government's failure to provide the complete state court record prior to the issuance of the R & R, I concluded that holding an evidentiary hearing had potential to advance Washington's claim.

3. Factual Findings Pursuant to the Hearing

The evidence presented pursuant to the evidentiary hearing did not ultimately advance Washington's claim. In his supplemental objections, Washington contended that there were two occasions when Mirarchi asserted Washington's speedy trial rights prior to November 8, 2001.^[36] (Pet'r's Supplemental Objection at 4.) Washington has presented no evidence, either documentary or testimonial, to support those allegations. Washington also claimed that he repeatedly and unsuccessfully requested that counsel move for dismissal based on violations of his Sixth Amendment right to a speedy trial and his rights under state law. (Id. at 4.) Although supported by the evidence,^[37] this assertion is immaterial. Hakeem v. Beyer, 990 F.2d 750, 765 (3d Cir.1993) (declining to consider pro se correspondence with the trial court as assertion of defendant's right to a speedy trial where defendant was represented by counsel, and holding "we believe, if a defendant is to tip the Barker scales significantly in his favor on the factor of assertion of the right, that, at least in cases where the accused is represented by counsel, some formal motion should be made to the trial court or some notice given to the prosecution").^[38]

Washington's supplemental objections also disputed the conclusions in the R & R regarding whether he was prejudiced by the delay.^[39] One of the goals that courts should consider when analyzing the degree of prejudice to the defendant is the goal of preventing oppressive pretrial incarceration. Barker, 407 U.S. at 532, 92 S. Ct. 2182. There is no equivalent goal for preventing post-trial incarceration. According to the Third Circuit, "most of the traditional interest the speedy trial guarantee is designed to protect `diminish or disappear altogether once there has been a conviction' ... [and] `at the post-trial stage, a defendant is incarcerated under a presumptively valid adjudication of guilt.'" Heiser v. Ryan, 15 F.3d 299, 305 (3d Cir.1994). Washington's incarceration cannot be characterized as "pretrial" incarceration, because on December 12, 1997, the state court released Washington on his own recognizance under Rule 1100. (R & R at 15.) Both parties agree that because Washington was released on his own recognizance between the first and second trials, if Washington were to finish serving his five to ten year sentence or if that sentence were vacated, Washington would be released from custody. (Tr. 5/20/05 at 52.) Therefore, Washington's assertions of prejudice due to incarceration will not be given as much weight as assertions of prejudice due to pretrial incarceration.

Washington's first argument as to prejudice was that his personal losses were factors that should be considered in determining whether he was prejudiced by the delay. (Pet'r's Supplemental Objection at 8.) Washington has presented no evidence of his personal losses, so I cannot include such losses in my analysis.

Second, Washington claims that the death of a witness and loss of the 911 tape impaired his defense at the December 1998 and February 2003 trials. (Pet'r's Supplemental Objections at 7.) Washington has presented no evidence regarding the death of the witness.^[40] The only evidence relating to the 911 tape is the transcript of a hearing before the state court in which the prosecution asserted that a 911 tape was introduced into evidence in the first trial, but that tape disappeared between the first and second trial, so a transcript of the tape was entered into evidence in Washington's second trial. (Tr. 2/6/03 at 5.) The defense did not object to that assertion. (Id.) There is no evidence that would support a conclusion that this prejudiced Washington.

Lastly, Washington presented evidence that the trial delays have prejudiced him by preventing him from being granted parole.^[41] The Parole Board "has broad discretion in parole matters." Finnegan v. Pennsylvania Board of Probation and Parole, 576 Pa. 59, 838 A.2d 684, 687 (2003). The Parole Board weighs many factors in a hearing including "the nature and character of the offense committed, any recommendation by the trial judge and the District Attorney, the general character and history of the prisoner and testimony or statements by the victim and the victim's family." Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319, 321 (1999). Furthermore, prisoners do not have a liberty interest in parole, which "is a matter of grace and mercy shown to a prisoner who has demonstrated to the Parole Board's satisfaction his future ability to function as a law-abiding member of society upon release before the expiration of the prisoner's maximum sentence." Id. at 322-23. Nonetheless, in examining whether a petitioner has been prejudiced by a speedy trial delay, "the possible impact impending charges may have on prospects for parole and meaningful rehabilitation should not be overlooked." Burkett v. Fulcomer, 951 F.2d 1431, 1442 (3d Cir.1991) (citing Moore v. Arizona, 414 U.S. 25, 94 S. Ct. 188, 38 L. Ed. 2d 183 (1973)).

The language of the Board of Probation and Parole indicates that Washington's criminal charges had an impact on their decision, therefore, this evidence demonstrates some prejudice to Washington. In the months in which the Board of Probation and Parole issued notices of decision as to Washington's status, more than half of the parole and reparole decisions granted parole.^[42] Because Washington was not eligible for parole until he served his minimum sentence, Pa. Stat. Ann., tit. 61, § 331.21(a), the delay in trying him did not prejudice his parole status until February 19, 2004 when he had served his five-year minimum sentence, and possibly not until the Board of Probation and Parole's first decision on June 11, 2004.

Looking at the period of time from February 21, 2003 when Washington's third trial ended in a hung jury until the present, I conclude that there was no violation of Washington's Sixth Amendment right to a speedy trial.^[43] The slight prejudice that accrued in the most recent fifteen to nineteen months regarding Washington's parole status is outweighed by the fact that Washington's own requests prevented his fourth trial from beginning during that period of time.^[44]

Therefore, even after receiving evidence pursuant to an evidentiary hearing, I reach the same conclusion as the R & R that Washington's right to a speedy trial has not been violated.

C. Washington's Right to a Speedy Appeal

In its objections to the R & R,^[45] the government argued that Washington had, in fact, never filed an effective notice of appeal and, therefore, no appeal is currently pending. Subsequently, in the government's response to petitioner's objections, the government argued that Washington's appeal was withdrawn, and, therefore, no appeal is currently pending. Each of these arguments, if true, would have consequences as to the timeliness of Washington's federal habeas petition and the question of exhaustion. However, I reject both arguments.

1. The Government's First Argument: No Effective Notice of Appeal

Until April 26, 2004, the parties represented to the court that the petitioner's appeal had not proceeded any further because, under Pennsylvania law, the petitioner could not appeal until all of the pending charges were resolved by a verdict. (Resp't's Objections at 3-4.) In their objections to the R & R, the government argued for the first time that Washington's notice of appeal was rejected by the state court because it was filed while Washington's post-sentence motion was pending. (Id. at 4.) The government indicated that Washington filed his post-verdict motion pro se and that his attorney filed the notice of appeal, not knowing that Washington had filed a post-sentence motion. (Id. at 5.) The government argued that the Pennsylvania Superior Court had no jurisdiction to hear an appeal filed while a post-sentence motion was pending.^[46] (Id. at 9-12 (citing Pa. R.Crim. P. 1410(A) reenacted as Rule 720) (other citations omitted).)

Because the government has since argued that the appeal was withdrawn, the government has apparently abandoned the argument in its objection that the appeal was not effectively filed. However, even if the government has not abandoned the argument in its objection, that argument is without merit. The state court record indicates that the court accepted Washington's notice of appeal.^[47] While the government contends that the state court could not possibly have accepted Washington's appeal because Washington's post-sentence motion was pending, it is equally likely that the court did not consider Washington's pro se post-sentence motion to be pending because Washington did not have the authority to file pro se motions while represented by counsel. Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 301-02 (1999) (approving earlier holdings that criminal defendants may not file pro se briefs while represented by counsel at trial or on appeal, and extending those holdings to PCRA proceedings). If the state court did not consider Washington's pro se post-sentence motion to be pending at the time that counsel for Washington filed his notice of appeal,^[48] then the state court had jurisdiction to accept Washington's notice of appeal. Therefore, I reject the government's contention that the speedy appeal claim is invalid based on a failure to properly file notice of appeal.

2. The Government's Second Argument: Notice of Appeal Withdrawn

In the government's response to petitioner's objections, the government presented yet another argument as to the status of Washington's appeal. (Resp. Pet'r's Objections to R & R at 9.) They pointed to the PCRA Opinion by the Pennsylvania Court of Common Pleas, which states, "[t]he appeal was ultimately withdrawn." (Id. (citing Washington, PCRA Opinion of 8/23/04 at 5.) The government contends that the statement in the PCRA Opinion is a finding of fact that cannot be overturned without a demonstration to the contrary by clear and convincing evidence. (Resp. Pet'r's Objections to R & R at 16 (citing 28 U.S.C. § 2254(e)(1)). The government further argues that the federal proceeding must be stayed to allow the appeal of the PCRA Opinion to proceed in state court so that the state court can resolve Washington's speedy appeal claim. (Id.)

The PCRA Opinion's statement that the appeal was withdrawn is not a finding of fact that requires deference. Section 2254(e)(1) provides:

In a proceeding instituted by an application for a writ of habeas corpus by a person in state custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). Section 2254(e)(1)'s presumption of correctness applies only to factual issues that are "basic, primary or historical facts: facts `in the sense of a recital of external events and the credibility of their narrators....'" Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir.1996) (quoting Townsend v. Sain, 372 U.S. 293, 309, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963)). The statement that Washington's appeal was withdrawn was not such a basic, primary or historical fact. Baker v. Horn, 383 F. Supp. 2d 720, 753-54, 2005 WL 1949631, *12, 2005 U.S. Dist. LEXIS 16768, *77 (E.D.Pa.2005) (holding that whether petitioner requested dismissal of his PCRA petition before the PCRA court is not such a basic, primary or historical fact).

Even if the presumption of correctness in section 2254(e)(1) applies to the statement that Washington's appeal was withdrawn, I find by clear and convincing evidence that the appeal was not withdrawn. Under Pennsylvania law, a fact does not become of record solely by virtue of a trial court's assertion of the "fact" in its opinion; it must be independently supported by the record. Baker v. Horn, 210 F. Supp. 2d 592, 627 (E.D.Pa.2002) (citing Hatalowich v. Bednarski, 315 Pa.Super. 303, 461 A.2d 1292, 1294 (1983)); see also Treu v. Harleysville Ins. Co., 443 Pa.Super. 567, 662 A.2d 1106, 1108 (1995) (refusing to accept in that case a judge's assertions regarding off-the-record conference absent record support). Consequently, the PCRA Opinion's after-the-fact assertion that the appeal was withdrawn does not provide record support for a finding that Washington withdrew his appeal. The record contains no motion to withdraw, no letter requesting dismissal, and no transcript of a hearing in which Washington made an oral request to withdraw the appeal. The most recent reference to Washington's notice of appeal, the April 30, 1999 Order, makes no mention of any withdrawal. I find by clear and convincing evidence that Washington did not withdraw his appeal and, therefore, his appeal is still pending. Because his appeal is still pending, the government's arguments regarding exhaustion are without merit.

The government also argues that I must stay the instant proceeding to allow the state court to decide Washington's appeal of the PCRA Opinion. Because Washington's appeal is still pending, however, his judgment has never become final for purposes of a PCRA petition. 42 Pa. Cons.Stat. § 9545(b)(3) (providing "a judgment becomes final at the conclusion of direct review... or at the expiration of time for seeking the review"). Washington cannot file a PCRA petition before his judgment becomes final, so the state court lacks authority to decide Washington's PCRA petition. 42 Pa. Cons.Stat. Ann. § 9545(b) (holding that any PCRA petition "shall be filed within one year of the date the judgment becomes final" with certain exceptions permitting a later filing). Therefore, I need not await the state court's decision as to Washington's appeal of his PCRA petition. I adopt the R & R's conclusion that Washington has remained incarcerated for over six and a half years while his appeal has remained pending in violation of his due process right to a speedy appeal.^[49]

3. The Speedy Appeal Remedy

Washington objects to the remedy recommended in the R & R and contends that the appropriate remedy would be to reduce his sentence by the length of time that his appeal was delayed. The Third Circuit, pointing to the scarcity of reported cases in which a convicted defendant was released unconditionally on a writ of habeas corpus due to a post-conviction delay,^[50] stated that "the habeas courts ordinarily have fashioned a remedy designed to spur the state courts to fulfilling their constitutional obligations to the defendant." Heiser v. Ryan, 15 F.3d 299, 306 (3d Cir.1994) (citing cases from other circuits in which the remedy provided that the writ is granted unless the state takes the action urged by the circuit court, e.g. unless the state hears appeal within 90 days). The Second Circuit said as dicta that "[r]elease from custody is an extraordinary remedy, especially in a delay-of-appeal case where release would in effect nullify a state court conviction on grounds unrelated to the merits of the case." Simmons v. Reynolds, 898 F.2d 865, 869 (2d Cir.1990) quoted in Heiser, 15 F.3d at 306.

In this case, the extreme remedy of unconditional discharge is not warranted. Rather, an appropriate remedy will "spur the state courts to fulfilling their constitutional obligations to the defendant." Heiser, 15 F.3d at 306. One remedy that the Third Circuit pointed to effective was an order "directing a retrial unless the appeal was decided within two and one-half months," which resulted in the state court deciding the appeal. Id. (citing Wheeler v. Kelly, 811 F.2d 133, 135 (2d Cir.1987)). With that guidance,^[51] I will impose a slightly modified version of the remedy recommended in the R & R. The Writ of Habeas Corpus shall issue unless the Pennsylvania Superior Court decides Washington's direct appeal by March 13, 2006.^[52]

IV. Conclusion

Therefore, upon holding an evidentiary hearing and receiving a more complete state court record, I nonetheless reach the same conclusions that the R & R reached. I deny Washington's petition as to his speedy trial claim, but grant it conditionally as to his speedy appeal claim. An appropriate order follows.

ORDER

AND NOW, this 12th day of September 2005, upon consideration of the parties' filings including petitioner's supplemental objections and respondent's objections, and after careful review of the Report and Recommendation of United States Magistrate Judge Diane M. Welsh, it is ORDERED that the Report and Recommendation (Docket # 33) is APPROVED and ADOPTED with the following modification:

1. The petition for a writ of habeas corpus is DENIED with respect to the Sixth Amendment speedy trial claim.

2. The petition for a writ of habeas corpus is GRANTED with respect to petitioner's due process speedy appeal claim as follows:

The Writ of Habeas Corpus shall issue unless the Superior Court of Pennsylvania decides the petitioner's direct appeal by March 13, 2006.

3. A Certificate of Appealability is granted. Petitioner has made a substantial showing of the denial of his right to a speedy trial.

NOTES

[1] I have slightly modified the remedy recommended in the R & R.

[2] At the time the R & R was written, the government had not produced the state court record, and the court relied upon the briefs of the parties and the records that the District Attorney for Philadelphia County provided the court. (R & R at 1.)

[3] I will discuss my decision to hold an evidentiary hearing in more detail when I discuss Washington's objections.

[4] The government submitted Respondents' Post Hearing Brief with attachments and an affidavit of Assistant District Attorney Jude D. Conroy, Esq., the prosecutor involved in Washington's state criminal trials. Washington submitted a Post Hearing Memorandum in Support of Petitioner's Motion Filed Pursuant to Title 28 United States Code Section 2254 with attachments including an affidavit of Charles P. Mirarchi, III, Esq., Washington's trial attorney for the state criminal proceedings.

[5] All state court proceedings are italicized; federal court proceedings are in ordinary Times New Roman font.

[6] A mistrial was declared because someone improperly contacted a juror. Washington PCRA Opinion of 8/23/04 at 3. Washington's trial counsel, Mirachi, requested a mistrial, Washington told the court that he would like to continue to a verdict, and the trial court declared a mistrial by reason of manifest necessity. (Aff. Mirachi ¶4; Tr. 5/20/05 at 39.)

[7] Both parties agree that Washington was released on his own recognizance("ROR") between the first and second trials and that if Washington's five to ten year sentence were completed or vacated, Washington would be released from custody. (Tr. 5/20/05 at 52.) Although the R & R mentions a sentence imposed on Washington by the court in Montgomery County for separate and unrelated charges, the parties agree that Washington is no longer serving the Montgomery County sentence. (Id.)

[8] The jury convicted Washington on one count of criminal conspiracy, one count of possession of an instrument of crime, and one count of robbery of a motor vehicle. (Pa.Super. Ct. Quarter Sessions File Verdict Report 12/22/98.)

The jury acquitted Washington on one count of criminal conspiracy, and counts of making terroristic threats, robbery, and burglary. (Id.) The jury also acquitted Washington of one count of first degree murder. Washington, PCRA Opinion of 8/23/04 at 3-4. Initially, the jury verdict stated that the jury could not reach a verdict as to any of the murder charges. (Pa.Super. Ct. Quarter Sessions File Verdict Report 12/22/98.) After the trial, however, the jurors spoke with the attorneys and the jurors explained that they had all agreed that Washington was not guilty of first degree murder, but they were confused by the verdict sheet and thought they could not acquit him of first degree murder unless they agreed on a verdict for all degrees of murder. Washington, PCRA Opinion of 8/23/04 at 4. Washington filed a motion to dismiss the first-degree murder charge, and on June 29, 1999, the court granted Washington's motion to dismiss the first-degree murder charge on double jeopardy grounds. (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 2 at 6.) This decision corrected the verdict to reflect the obvious intention of the trier of fact. Washington, PCRA Opinion of 8/23/04 at 5.

The jury was unable to reach a verdict on the lesser degrees of murder and the kidnaping count. (Pa.Super. Ct. Quarter Sessions File Verdict Report 12/22/98.)

[9] The prosecution made this assertion and the defense did not contest it. (Tr. 2/6/03 at 5.)

[10] Mirarchi states in his affidavit that the appeal has never been dismissed and that the state court told Mirarchi "that an appeal on a partial verdict could not be prosecuted." (Aff. Mirarchi ¶ 7.)

[11] The order stated the following:

1. On 2/16/99, defendant was sentenced on the partial verdict of 12/22/98

2. On 3/5/99, Appeal to Pennsylvania Superior Court accepted for review only.

3. On 3/15/99, Order for a 1925(b) to be filed.

4. On 4/26/99, Letter received from the defendant pro-se to permit nunc pro tunc review of Reconsideration of Sentence.

5. On 4/27/99, Request for nunc pro tunc review denied.

(Pa. Super Ct. Quarter Sessions File Order 4/30/99.)

[12] The court did not address the motion to dismiss that was joined with the habeas petition until February 6, 2003, which was just prior to Washington's third trial.

[13] The text of the order is as follows:

The pro se "Petition for writ of Habeas Corpus" is hereby denied. See Municipal Publications v. Court of Common Pleas, 489 A.2d 1286 (Pa.1985) (stating that the Supreme Court of Pennsylvania has original jurisdiction to issue a writ on the lower court where no appeal is pending.)

(Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 7.)

[14] Washington's speedy trial argument concentrates on the state right to a speedy trial, but his introduction clearly states that he is seeking relief "from the unlawful detention resulting from the Commonwealth's intentional violation of petitioner's constitutional rights to Speedy Trial, Direct Appeal, and Due Process." (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 6 at 3.)

[15] Though the parties did not provide documentary evidence of this fact, the June 4, 2002 denial of Washington's habeas petition before the Supreme Court of Pennsylvania is undisputed by the parties. (R & R at 3-4.)

[16] Washington also testified that there were occasions when he spoke with and corresponded with Mirarchi and insisted upon having a trial. (Tr. 5/20/05 at 36.)

[17] As discussed below, this petition alleges that Washington's Sixth Amendment right to a speedy trial and his due process right to a speedy appeal have been denied.

[18] This motion was filed on November 8, 2001 as a "Petition for Writ of Habeas Corpus, and/or Motion to Dismiss Due Pa.Crim. P. Rule 600," and the state court treated it as both a petition for habeas corpus and a motion to dismiss. As mentioned above, the petition for habeas corpus was dismissed on January 30, 2002.

[19] On March 3, 2000, there was a continuance because the presiding judge, Judge Poserina, was hospitalized. (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 2 at 7-8.) On May 24, 2000, there was a continuance because the judge was not sitting, and on May 24, 2001, January 21, 2003, and January 28, 2003, the court was conducting trials for other matters. (Id.) Mirarchi knew that he could request reassignment to an available judge to avoid trial delays, but he chose to keep the case before Judge Poserina. (Aff. Mirarchi ¶ 12.)

In addition, several of the entries on the docket sheet address Washington's post-trial motions, which may account for some of the delay. (Id.)

[20] The amended PCRA petition argued that Washington had been denied his rights to speedy trial, direct appeal, and due process. (Am. Pet. Pursuant to PCRA at 5.) However, the PCRA Opinion stated, "[t]he only legal issue presented by Defendant's instant PCRA petition is whether a defendant is entitled to appeal a partial verdict." Washington, PCRA Opinion of 8/23/04 at 7.

[21] Subsequently on June 15, 2004, at Washington's request, the state court allowed him to proceed pro se with his PCRA claims. Id.

[22] Washington filed these objections before receiving a copy of the R & R. His supplemental objections, filed on July 14, 2004, are the objections I address in this memorandum.

[23] Washington made this request through Mirarchi, and Washington also addressed the court himself. (Aff. Conroy ¶¶ 8-9.)

[24] Section 636(b)(1) provides that parties may file objections within ten days of being served with a copy of the R & R. Washington states in his supplemental objections that he had not received a copy of the R & R on June 3, 2004 when he wrote his objections. (Pet'r's Supplemental Objection at 2.) Therefore, I will consider Washington's supplemental objections rather than his objections.

[25] The PCRA court dismissed Washington's PCRA petition because Washington did not file his PCRA within a year of the date his judgment became final, and none of the exceptions to the timeliness requirement applied. Id. at 8-9 (citing 42 Pa. Cons.Stat. § 9545(b)(1)). As part of that determination, the court held that the state trial court acted appropriately in deciding to sentence Washington for some of the charges in his indictment while others were pending. Id. This PCRA Opinion also included the statement that Washington's "appeal was ultimately withdrawn." Id. at 5.

[26] The hearing, originally scheduled for January 7, 2005, ultimately occurred on January 18, 2005.

[27] The Notice of Board Decision of January 25, 2005 was attached to Washington's letter to this court dated February 27, 2005.

[28] In addition to the documents mentioned in this chronology, Washington has filed many pro se objections and supplemental petitions. Those were not timely, not filed with the court's permission, not filed through appointed counsel, and do not aide the court in addressing Washington's claims.

[29] Other than the issues that I discuss below, I approve and adopt the conclusions in the R & R.

[30] After filing his supplemental objections, Washington attempted to raise additional claims, which would effectively amend his petition for habeas corpus. A petition for habeas corpus "may be amended or supplemented as provided in the rules of civil procedure applicable to civil actions." 28 U.S.C. § 2242. Rule 15(a) of the Federal Rules of Civil Procedure provides that pleadings may be amended "by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so required." Fed.R.Civ.P. 15(a). In the present case, Washington was granted leave to amend and did, in fact, amend his petition after counsel was appointed. He was further granted leave to file a memorandum of law in support of his amended petition, which he did. In addition, he had the opportunity to file objections to the R & R, which he did. Washington's other efforts to amend his petition will not be countenanced.

[31] This petition alleged the violation of Washington's constitutional rights to a speedy trial, direct appeal and due process along with the violation of his state rights. (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 6.)

[32] Furthermore, the Third Circuit has recognized that exhaustion may sometimes be excused:

[e]xhaustion ... is not a jurisdictional matter but a matter of comity. See Story v. Kindt, 26 F.3d 402, 405 (3d Cir.1994). Federal courts need not defer to the state judicial process when there is no appropriate remedy at the state level or when the state process would frustrate the use of an available remedy. Id.; 28 U.S.C. § 2254(b)(1)(B). We have held that "inexcusable or inordinate delay by the state in processing claims for relief may render the state remedy effectively unavailable." Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir.1986).

Lee v. Stickman, 357 F.3d 338, 341 (3d Cir.2004). Because Washington's direct appeal is pending, his judgment never became final for purposes of a PCRA petition. 42 Pa. Cons.Stat. § 9545(b)(3) (providing "a judgment becomes final at the conclusion of direct review ... or at the expiration of time for seeking the review"). Furthermore, there has been no judgment as to the outstanding criminal charges against Washington. Therefore, it is not clear that there was any appropriate remedy available to Washington at the state level.

[33] As explained in the R & R, the Sixth Amendment guarantees defendants the right to a speedy trial in criminal prosecutions. U.S. Const. amend. VI. The Supreme Court adopted a four-part balancing test to determine whether delays have violated a defendant's Sixth Amendment right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The four factors that the court must balance are the following: (1) "the length of the delay," (2) "the reason the government assigns to justify the delay," (3) "the defendant's responsibility to assert his right," and (4) "prejudice to the defendant." Id. at 530-33, 92 S. Ct. 2182.

[34] In a case with a slightly different factual context, the Fifth Circuit in United States v. Avalos, 541 F.2d 1100, 1109-10 (5th Cir.1976), discussed the concerns relevant in the present case. The court in Avalos addressed a speedy trial claim for a case in which the verdict from the first trial was set aside and a new trial was held. The Fifth Circuit discussed the question of whether to analyze the delay from the criminal accusation to the first trial or from the criminal accusation through the second trial. The court in that case engaged in the following reasoning:

Were the speedy trial period uniformly extended from arrest through retrial, however, then in many cases in which a conviction was reversed the government would be barred from retrying the defendants because the resulting delay would violate the sixth amendment.

Id. The Fifth Circuit distinguished an earlier case where the government's conduct led to the mistrial holding that in Avalos the first trial was completed and there is no allegation "that the government initiated the first trial as a dilatory tactic." Id. Therefore, the court in Avalos determined that it would consider only time between the government's accusation and the first trial.

[35] Washington made no objections to any of the R & R's findings as to the length of delay or reasons for delay, the first and second Barker factors. Washington's objections merely allege the following: (a) Washington asserted his right to a speedy trial on occasions between July 1999 and November 2001 that were not included in the R & R, (Pet'r's Supplemental Objection at 4-5), and (b) Washington was prejudiced by the trial delays in ways not accounted for in the R & R. (Id. at 5-9.)

[36] Whether defendant asserted his right to a speedy trial is the third Barker factor that must be weighed to determine whether the defendant's Sixth Amendment speedy trial rights have been violated. The R & R found that the first time Washington asserted his right to a speedy trial was November 8, 2001. (R & R at 16.) Washington claimed first that in or about July 1999 Mirarchi orally motioned the trial court to release Washington on nominal bail due to violations of his Sixth Amendment right to a speedy trial and his rights under state law. (Pet'r's Supplemental Objection at 4.) Second, Washington claimed that some time between December 2000 and November 8, 2001, Washington filed a motion to dismiss the charges. (Id. at 4-5.)

[37] The Pennsylvania Quarter Sessions File contains a letter dated September 15, 2002 from Washington to Mirarchi complaining about Mirarchi's failure to assert Washington's speedy trial right or push for a timely retrial. (Pa.Super. Ct. Quarter Sessions File Letter 9/15/02.) Washington also testified that there were occasions when he spoke with and corresponded with Mirarchi and insisted upon having a trial. (Tr. 5/20/05 at 36.)

[38] The parties produced some additional evidence of Washington asserting his right to a speedy trial not addressed by Washington in his objections, but this evidence consisted of a pro se motion received by the court before the first trial while Washington was represented by counsel, and pro se correspondence to judges before the third trial while Washington was represented by counsel. These are not sufficient to demonstrate that Washington asserted his right. See Hakeem, 990 F.2d at 765 (3d Cir.1993). Furthermore, this evidence is offset by new evidence that Washington has sought to delay his trial. On June 24, 2004 and November 15, 2004, Washington requested continuances in state court based in part on his desire to await resolution of his federal habeas matter. In addition, Mirarchi knew he could request reassignment to another judge to avoid trial delays, but he chose to keep the trial before the same judge. These recent efforts to delay trial weigh strongly against finding that he asserted his right. Id. (holding that "[r]epeated assertions of the right do not, however, balance this factor in favor of a petitioner when other actions indicate that he is unwilling or unready to go to trial") (citation omitted).

[39] In weighing the fourth Barker factor, prejudice to the defendant, the R & R concluded that the fourth factor did not weigh in Washington's favor.

[40] The government stated that the witness "died of a heart attack on October 8, 1995, more than two months before the Commonwealth was able to take petitioner into custody," (Resp. Pet'r's Objections to R & R at 7), which may explain Washington's decision to forego presenting evidence as to that claim.

[41] The Board of Probation and Parole issued the following decision after interviewing Washington and reviewing his file: "A DECISION IN YOUR CASE IS PENDING: DISPOSITION OF CRIMINAL CHARGES — PHILA MURDER, VUFA PENDING CHARGES." (Notice of Board Decision 6/11/04.) On January 25, 2005, the Board of Probation and Parole reaffirmed their June 11, 2004 decision to postpone the decision as to whether to grant parole. (Notices of Board Decision 6/11/04 and 1/25/05.)

[42] In June 2004, 62% of 1,656 parole and reparole decisions granted parole. Commonwealth of Pennsylvania Board of Probation and Parole Monthly Program Report June 2004, Table 8. In January 2005, 56% of 1,509 parole and reparole decisions granted parole. Commonwealth of Pennsylvania Board of Probation and Parole Monthly Program Report January 2005, Table 8. These reports are available on the Pennsylvania Board of Probation and Parole website at http://www.pbpp.state.pa.us.

[43] The R & R, looking only at the period of time from February 21, 2003 to June 21, 2004, concluded Washington's right to a speedy trial was not violated during that period of delay. (R & R at 20-22.) Both decisions by the Board of Probation and Parole were made after the issuance of the R & R, and Washington requested additional continuances after the issuance of the R & R.

[44] Due to Washington's request on June 24, 2004, state court proceedings were continued until November 15, 2004. Then on November 15, 2004, Washington again requested a continuance of his state court trial, because he did not want to go forward with his trial until his federal habeas matter was completed.

[45] The R & R concluded that Washington's due process right to a speedy appeal had been violated. The court concluded that Washington has been serving his sentence since February 1999 without being heard by the state court as to his direct appeal.

[46] The Pennsylvania Superior Court has never stated that it lacked jurisdiction to hear Washington's appeal.

[47] A stamp on the notice of appeal indicated that it was "Received Accepted For Review Only." (Post Hr'g Mem. Supp. Pet'r's Mot. Ex. 3.) There is no record of the state court rejecting Washington's appeal. In fact, the Court of Common Pleas wrote to Washington ordering a concise statement of matters complained of on the appeal pursuant to Rule 1925(b) Rules of Appellate Procedure. In that order, the court wrote, "Upon receipt of your reply to this order, I will write my Opinion forthwith." (Pa. Super Ct. Quarter Sessions File Letter 3/15/99.) An order issued just over a month later listed some of the Washington's procedural history and included the statements "On 3/5/99, Appeal to Pennsylvania Superior Court accepted for review only" and "On 3/15/99, Order for a 1925(b) to be filed." (Pa. Super Ct. Quarter Sessions File Order 4/30/99.) The absence of a date of dismissal suggests that at the time the order was issued on April 30, 1999, the appeal was still pending. Furthermore, Mirarchi states in his affidavit that the appeal has never been dismissed and that the state court told Mirarchi "that an appeal on a partial verdict could not be prosecuted." (Aff. Mirarchi ¶ 7.)

At the evidentiary hearing, the government stated its belief that the state court stamped "Received Accepted For Review Only" on documents when there was a potential jurisdictional problem. (Tr. 5/20/05 at 18-19.) Because the state court never rejected the notice of appeal for lack of jurisdiction or otherwise, this does not advance the government's argument. The due process speedy appeal violation would be equally egregious if the state court accepted the notice of appeal for the limited purpose of determining whether it had jurisdiction over the appeal and failed to make even that determination.

[48] The April 30, 1999 Order provides further support for the proposition that the state court did not consider the post-sentence motion to be pending when the notice of appeal was filed because that Order does omits the post-sentence motion from the procedural history it sets forth.

[49] The government's objections do not contest the R & R's balancing of factors for Washington's speedy appeal claim, they merely argue that the notice of appeal was never effectively filed. Washington objects to the conclusion in the R & R regarding the prejudice Washington suffered due to the delayed appeal, but he has presented no evidence demonstrating that he suffered any prejudice over and above the prejudice inherent in a delayed appeal. Nonetheless, I find that the length of delay in Washington's appeal allows me to draw a small inference of prejudice. See Hakeem, 990 F.2d at 763-64 (citing Doggett v. United States, 505 U.S. 647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992) for the proposition that in speedy trial cases, the length of the delay alone will sometimes allow the court to draw an inference of prejudice). Even without this finding of prejudice, however, I adopt the R & R's conclusion that Washington's right to a speedy appeal has been violated.

[50] The court in Heiser pointed to one case in which the Third Circuit concluded that discharge was the appropriate remedy for post-trial delay. Heiser, 15 F.3d at 306-07. In that case, Burkett v. Cunningham ("Burkett I"), the court found that delay in sentencing the petitioner violated both his right to a speedy trial and his right to a speedy appeal. Burkett I, 826 F.2d 1208, 1224-25 (3d Cir.1987) (holding that "[a]lthough the delay ... violates the Sixth Amendment speedy trial guarantee and by itself justifies discharge, the delay in sentencing also prohibits Burkett from pursuing an appeal in this case ... [and] we find discharge the appropriate remedy for this due process violation"). In a later case, the Third Circuit distinguished Burkett I for a couple of reasons including the fact that in Burkett I "the state's attorney conceded that discharge was the appropriate remedy." Burkett v. Fulcomer, 951 F.2d 1431, 1447 (3d Cir.1991) (holding that the appropriate remedy for the delay in that case was to reduce petitioner's sentence by the 39 months of delay chargeable to the state court).

[51] In Wheeler, the Second Circuit noted as dicta that it was questionable whether federal district courts had the authority to direct a retrial by state authorities. Wheeler, 811 F.2d at 135.

[52] Washington may be incorrect in asserting that he would be released from prison now if I imposed the remedy used in Burkett v. Fulcomer, 951 F.2d 1431, 1447 (3d Cir.1991). In that case, the court did not reduce the defendant's sentence by the entire time during which the appeal was pending; rather, it reduced defendant's sentence by the amount of the delay that characterized the prejudice suffered by the defendant. Id. In the present case, Washington's sentence would not be reduced by the approximately six and a half years of delay; it would be reduced by some smaller amount that appropriately characterized the prejudice that Washington had suffered.