                                  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).




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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


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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


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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.

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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).



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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).



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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.

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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).



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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).



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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).




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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.




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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).

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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
