                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-22-2008

Middlebrook v. Carroll
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1474




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"Middlebrook v. Carroll" (2008). 2008 Decisions. Paper 510.
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                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT



                                  No. 07-1474


                          NIKERRAY MIDDLEBROOK,

                                            Appellant

                                       v.

               THOMAS CARROLL; ATTORNEY GENERAL OF
                 STATE OF DELAWARE; CARL DANBERG


                 On Appeal from the United States District Court
                            for the District of Delaware
                           (D.C. Civil No. 05-cv-00827)
                 District Judge: The Honorable Sue L. Robinson


                   Submitted Under Third Circuit LAR 34.1(a)
                              September 9, 2008

         Before: SLOVITER, FUENTES, and NYGAARD, Circuit Judges.

                           (Filed: September 22, 2008)



                           OPINION OF THE COURT




NYGAARD, Circuit Judge.
       Nikerray Middlebrook was convicted of attempted first degree murder, first degree

assault, possession of a weapon during the commission of a felony, and possession of a

deadly weapon by a prohibited person. Middlebrook’s writ of habeas corpus under 28

U.S.C. § 2254 alleged, inter alia, the ineffective assistance of counsel for failure to raise

in his direct appeal to the Delaware Supreme Court violations of his right to a speedy

trial. In denying this claim of his writ, the District Court reasoned that, since

Middlebrook’s speedy trial claim was without merit, counsel could not be deemed

ineffective for failure to raise it. We will affirm.

       On appeal, Middlebrook argues that the District Court misconstrued his argument

when it focused only upon the trial. He asserted that his claim is properly read as

asserting violation of rights to a speedy trial in the sentencing and appellate phase of his

case. We certified for appeal the following question: “[W]hether Middlebrook’s Sixth

Amendment and Due Process rights were violated by the delay between conviction and

sentencing and the delay in the appeal process.” 1




       1.
         We also directed the parties to address the question of whether these claims were
exhausted, for purposes of habeas review. The government argues that Middlebrook did
not present the question that we certified for appeal to the District Court, barring our
consideration of this claim. We find that Middlebrook’s pro se assertion of both the
ineffective assistance of counsel claim and of his violations of rights to speedy trial and
appeal were inextricably intertwined, and therefore sufficiently presented to the District
Court, thus grounding our investigation of the question certified for appeal.

                                               2
          Due process guarantees an appeal that is both “adequate and effective.” Simmons

v. Beyer, 44 F.3d 1160 (3d Cir. 1995). Moreover, we have previously stated that speedy

trial rights apply to sentencing. Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987).

          Following the traditional four-part analysis of speedy trial claims, we do not find

any violation of Middlebrook’s Sixth Amendment or Fourteenth Amendment rights. See

Burkett, 826 F.2d at 1169. The amount of time that transpired from conviction to

sentencing (10 months) and between the court’s reimposition of his sentence and the

decision on his appeal (approximately 28 months), were sufficiently long to meet the first

prong of analysis of a speedy sentencing and a speedy appeal claim. Nonetheless, this

factor alone is not determinative.

          Regarding the prong that focuses upon the assertion of the right to a speedy

sentence and appeal, the record shows that Middlebrook raised his concerns about delay

early in the process. However, the court warned Middlebrook that the choices he was

making with regard to the filing of pro se motions and changes in counsel would result in

delay. This mitigates the importance of the timing of Middlebrook’s first assertion of

rights.

          In the same vein, the fact that Middlebrook’s multiple motions and changes in

counsel caused a great deal of the delay disfavor Middlebrook’s claim. Moreover, the

response of the state courts to Middlebrook’s numerous pleadings necessarily consumed




                                                3
time, and there is no evidence that either the state court or the government acted in a

dilatory manner.2

       Finally, we are not convinced that Middlebrook suffered any appreciable prejudice

in the time that he awaited sentencing and a decision on his appeal. Neither the anxiety or

the loss of witnesses claimed by Middlebrook rises to the level of prejudice that is

required of a due process claim. Particularly given that the four-prong analysis “is not to

be applied uncritically” in assessing a delay claim in the appeal context, we find

Middlebrook’s claims to be without merit.

       Because we affirm the District Court’s general conclusion that counsel cannot be

deemed ineffective where the claim that counsel supposedly failed to raise is meritless,

Strickland v. Washington, 466 U.S. 668 (1984), we affirm the District Court’s denial of

Middlebrook’s petition.




       2.
        Between conviction and sentencing, Middlebrook requested at least three of the
four continuances. Following the reimposition of his sentence, and in spite of the
appointment of counsel, Middlebrook sought to proceed pro se on appeal. The Delaware
Supreme Court remanded the issue to the Superior Court for evidentiary hearings and a
recommendation on the issue, which occurred in November 2000. Initially, Middlebrook
was permitted to represent himself, but after reviewing Middlebrook’s filings the
Delaware Supreme Court remanded to the Superior Court to appoint counsel. After a
second evidentiary hearing on June 8, 2001, new counsel was appointed on June 21,
2001. The Delaware Supreme Court considered Middlebrook’s direct appeal and
affirmed Middlebrook’s convictions and sentence on January 28, 2003.

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