Seventh Circuit Holds Four-Year Delay for State Appeal Excused Habeas Exhaustion Requirement
Waiting more than four years for a Wisconsin State court to hear a defendant`s appeal was “ineffective to protect the rights secured by the United States Constitution,” the U.S. Court of Appeals for the Seventh Circuit held on August 18, 2021, allowing a federal habeas corpus petition to proceed without exhausting state-court remedies.
Marvin Carter pled guilty in 2017 to a drug and firearm charge in a Wisconsin State court. As part of the plea deal, the prosecutor had agreed in to recommend no more than six years in prison. But at sentencing the prosecutor instead told the judge, “I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.” Taking the hint, the judge sentenced Carter to nine years in prison, not the six years in the plea agreement.
Carter then filed the necessary notice for an appeal, a process that has been called “unusual” as far as state appellate proceedings go. First, he had to file his notice within 20 days that he wanted to file a “post-conviction motion,” not an appeal. Only after that gets dismissed may Carter filed an actual direct appeal. What`s also odd is that it`s the trial judge who imposed the sentence that hears the post-conviction motion prior to an appeal. Carter was appointed counsel for this process, and by 2019 counsel had filed twelve motions for extensions of time, each time waiting until the last day to do so. Each motion was granted and, on top of that, the court itself imposed three more extensions of time.
Carter finally gave up and filed a habeas corpus petition in federal court, under 28 U.S.C. sec 2254, with the same claims he intended to raise in the state court about his sentence. The district court, however, told him he still had to give the state court one more shot at hearing his claims, and dismissed his petition without prejudice so he could file again later if needed. Instead, Carter filed an appeal.
Habeas law says that a state prisoner must exhaust any post-conviction remedies in state court before a federal court may hear his federal habeas petition. Sec 2254(b)(1). But there are some exceptions. That same section excuses exhaustion if there`s an “absence of available state correction process,” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” The question before the Seventh Circuit was whether any exceptions to exhaustion applied because of the state court`s delay.
First, the Court had to determine that it had jurisdiction to hear the case. The state had argued that because the district court`s dismissal was without prejudice, it wasn`t a “final” decision to allow an appeal. Under 28 U.S.C. sec 1291, a federal court of appeals has jurisdiction only over “final” decisions of a district court. The Court acknowledged that a dismissal without prejudice is usually done to allow a petitioner to fix a deficiency, like exhaustion of state remedies, and then file again. But there are exceptions to this, it noted:
When it would be futile for the plaintiff or petitioner to attempt to resolve the issue that caused the district court to dismiss the case, then, a seemingly nonfinal order is functionally final and thus appealable.
The Court said that Wisconsin`s appellate process had “failed Carter” and it would be “futile” for him to keep trying to exhaust state remedies so he could file a federal habeas petition. The Court`s sentiments on Wisconsin`s appellate process continued, with the Court finding that such an “ineffective” process was a reason to excuse exhaustion in Carter`s case.
Congress was careful to, in recodifying the exhaustion requirement under the Antiterrorism and Effective Death Penalty Act (AEDPA), to ensure that state prisoners exhaust any state-court remedies before going to federal court with a habeas petition. This preserves federalism concerns, or respect for the state courts as a first resort for relief. But the Supreme Court has said that exceptions in a statute are just as important as its mandates. “Exceptions and exemptions are no less part of Congress`s work than its rules and standards — and all are worthy of a court`s respect.” BP PLC v. Mayor and City Council of Balt., 141 S. Ct. 1532 (2021).
Carter had made a “colorable” claim under Santobello v. New York, 404 U.S. 257 (1971), a case where the Supreme Court held that a defendant is entitled to resentencing or to withdraw his plea, if the prosecutor breaches the plea agreement. That`s what Carter claimed the prosecutor did by his statements to the judge that led to a sentence above the one in the plea agreement. The Seventh Circuit said this claim, though, “had fallen on deaf ears,” leaving the Court with the impression that “for Carter, justice delayed has become justice denied.”
The Court closed with the following quote:
We were alarmed to see the state point its finger at Carter and, in its briefing, go so far as to say that he is at fault because he complained to no one about the delays until after he came into federal court. It is not clear to us what else Marvin Carter could have done or, for that matter, why the state is so intent on avoiding responsibility for its own failings. And we were shocked anew by the state`s presentation at oral argument. When asked whether the Attorney General had filed anything with the Wisconsin Supreme Court alerting it to the serious problems in the lower courts, counsel insisted, “We don`t have a problem.” That view if indefensible: a miscarriage of justice occurs when a convicted person must wait four years for appellate review.
The Court therefore vacated the dismissal of Carter`s habeas petition and remanded with instruction for the district court to review the merits of his claims. See: Carter v. Buesgen, No. 20-3140, 2021 U.S. App. LEXIS 24672 (7th Cir. Aug. 18, 2021).