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Simmons v. Beyer

decided: February 10, 1995.

LAWRENCE L. SIMMONS, APPELLANT
v.
HOWARD L. BEYER; AND THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, W. CARY EDWARDS



ON APPEAL FROM THE DISTRICT OF NEW JERSEY. D.C. Civ. No. 86-4274. {Judge}{Q}Judges{/Q}{/Judge}

Present: Sloviter, Chief Judge, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen, Nygaard, Alito, Roth, Lewis, McKEE and Sarokin, Circuit Judges

Author: Nygaard

SUR PETITION FOR REHEARING

The petition for rehearing filed by appellees in the above-entitled case having been submitted to the Judges who participated in the decision of this court and to all the other available circuit Judges of the circuit in regular active service, and no Judge who concurred in the decision having asked for rehearing, and a majority of the circuit Judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Greenberg and Judge Alito would grant rehearing in banc. Judge Greenberg has filed an opinion Dissenting from the order denying rehearing in banc, joined therein by Judge Alito.

By the Court,

/s/ Richard L. Nygaard

Circuit Judge

Dated: February 10, 1995

GREENBERG, Circuit Judge, Dissenting from the order denying rehearing in banc.

I respectfully Dissent from the order denying rehearing in banc. The panel opinion points out that "had Simmons received a timely review, his conviction would have become final before 1986," when Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), was decided. Slip op. at 5. This observation unquestionably is true as Simmons was sentenced in 1977. Thus, the panel acknowledges that Simmons is a "chance beneficiary" of Batson, for without the delay Batson could not have applied in this case. Id. The panel, however, justifies its result by pointing out that Simmons "was not similarly situated with other defendants convicted in 1977 whose convictions became final before Batson was decided [because] those other defendants did not suffer a 13-year delay before getting appellate review. . . ." Id.

The difficulty with this reasoning is that the 13-year delay is unrelated to the Batson problem, for if there had been no delay there would be no issue under Batson. Accordingly, there is no justification for "equalizing" Simmons' situation with that of other defendants convicted in 1977 by giving Simmons a Batson claim. After all, if Batson is not applied, Simmons will receive the precise treatment which other defendants convicted in 1977 have received under Batson, i.e., no relief. Here, the panel grants Simmons a remedy which bears no relationship to the problem caused by the delay. Instead of granting Simmons a remedy to compensate him for the wrongful delay in the processing of his appeal, it grants him a sword by allowing him to profit from the delay.

In his concurrence, Judge Hutchinson appears to acknowledge the inequities of giving Simmons a Batson right, but concludes that " Griffith should be applied to this and all other cases involving appeals nunc pro tunc, not only because such a decision comports with a literal reading of Griffith's holding, but also because of Griffith's genesis in Justice Harlan's objections to the case specific approach to retroactivity adopted in Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1971)." Slip op. at 25. In the first place, however, the situation in this case is not at all clearly covered by Griffith , which really focused on defendants whose trials and appeals were taking place concurrently with Batson's. As Judge Hutchinson recognizes, "Griffith Brown and Batson were tried in the same court within three months of each other." Slip op. at 23. Thus, without a retroactive application of Batson, Brown and Griffith would have been denied application of the new rule for truly fortuitous reasons. But Griffith simply did not address a situation in which the direct appeal was the product of a habeas proceeding conducted many years after the conviction. In fact, Simmons' situation falls somewhere between Griffith and Allen v. Hardy, 478 U.S. 255, 261, 106 S. Ct. 2878, 2881, 92 L. Ed. 2d 199 (1986), which held that "the rule in Batson should not be available to petitioner[s] on federal habeas corpus review of his convictions." Thus, it simply cannot be said that a literal reading of Griffith compels application of Batson.

Moreover, the response to Judge Hutchinson's second rationale lies in the nature of nunc pro tunc relief itself. Nunc pro tunc is a "phrase applied to acts allowed to be done after the time when they should be done, with a retroactive effect, i.e., with the same effect as if regularly done." Black's Law Dictionary, 6th ed. at 1069 (1991) (emphasis added). Thus, even applying form over substance, the nature of the relief given should force the court to put Simmons in the same position he would have been in had the State not denied him his right to a timely direct appeal. So if we really are concerned with giving Simmons nunc pro tunc relief, it is axiomatic that, even abjuring case by case inquiries in deciding retroactivity questions, Griffith is inapplicable.

It seems obvious, then, that the greatest remedy that reasonably can be granted to Simmons by reason of the delay in the appellate process would be to consider this case with respect to Batson as if his final direct appeal had been decided at the outside time limit of when a properly prosecuted direct appeal from the 1977 conviction could have been decided. While I am not ...


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