                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-1995

Simmons v Beyer
Precedential or Non-Precedential:

Docket 92-5370




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                           No. 92-5370


                      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 UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                    (D.C. Civil No. 86-04274)


                     Argued October 7, 1993

     Before:   HUTCHINSON, COWEN and NYGAARD, Circuit Judges

               (Opinion Filed      January 4, l995 )


JOHN V. SAYKANIC, ESQUIRE (Argued)
35 Onyx Court
Passaic, NJ 07055
Attorney for Appellant

RONALD S. FAVA, ESQUIRE
Passaic County Prosecutor
JANE E. HENDRY, ESQUIRE (Argued)
Office of County Prosecutor
77 Hamilton Street
New Court House
Paterson, NJ 07505
Attorney for Appellees
NYGAARD, Circuit Judge.

           We granted Lawrence L. Simmons' request for a

certificate of probable cause and now must decide: (1) whether

voir dire transcripts, missing after a 13-year delay between

Simmons' sentencing and direct appeal, are indispensable to

review his claim that the prosecution improperly exercised its

peremptory challenges to exclude African Americans from the jury,

and (2) whether this delay violated Simmons' constitutional right

to due process and a speedy appeal.1   The district court denied

Simmons' reopened petition for a writ of habeas corpus.    We will

reverse because, although the district court correctly concluded

that Simmons' right to due process was violated, it erred by

concluding that the violation was cured when Simmons received his

direct appeal.

                                I.

           In 1977, Simmons was sentenced to life imprisonment

plus 21 to 25 years.   Although immediately after sentencing he

expressed his desire to appeal, and never waived his right to
appeal, Simmons' conviction and sentence were not reviewed for 13

years.   His appointed trial counsel did not file a notice of

appeal or promptly transfer Simmons' case to the appellate


1
 . Simmons additionally asserts claims based on alleged
violations of his Miranda and Fifth Amendment rights, inability
to review the effect of pre-trial publicity, governmental
misconduct, verdicts against the weight of the evidence, errors
in the jury instructions, other errors during trial, and the
denial of his motions to examine the jurors and for a new trial.
We have reviewed these claims and conclude that they are without
merit.
division of the New Jersey Public Defender.    Thereafter, despite

requests from Simmons and his trial counsel, the Public Defender

failed to promptly seek an appeal.    Ultimately, the federal

district court granted Simmons a conditional writ of habeas

corpus, directing that a writ would issue unless the state gave

him an appeal or a new trial.     Thus, after he had pursued

collateral review in the state and federal courts from 1980 to

1988, the New Jersey Superior Court, Appellate Division finally

permitted Simmons to file a notice of appeal nunc pro tunc.

After spending more than a decade in prison, Simmons was granted

his first appeal as of right.

          By this time, however, portions of the trial record

including a lengthy in camera voir dire of prospective jurors

were missing.   The Appellate Division remanded the case for the

limited purpose of reconstructing the record, and the judges who

had presided over the jury selection and the remainder of the

trial and sentencing held reconstruction hearings.    Simmons

challenged the sufficiency of the reconstructed record in federal

district court, but his motion was denied without prejudice to

his right to challenge the record in the state appellate

proceedings.    In 1990, the Appellate Division affirmed Simmons'

conviction and sentence, and the New Jersey Supreme Court denied

his petition for certification.    In 1991, the United States

Supreme Court denied Simmons' petition for a writ of certiorari.

The district court then denied his reopened petition for a writ

of habeas corpus, and he now appeals.

                                II.
          Simmons contends that the manner in which the

prosecutor exercised his peremptory challenges violated the

federal and state law principles articulated in Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712 (1986), and State v.

Gilmore, 511 A.2d 1150 (N.J. 1986).     In Batson, the United States

Supreme Court held that the Equal Protection Clause of the

Fourteenth Amendment forbids the prosecution from exercising

peremptory challenges to exclude potential petit jurors based on

race or race-based assumptions.     476 U.S. at 89, 106 S. Ct. at

1719.   Similarly, in Gilmore, the New Jersey Supreme Court held

that its state constitution prohibits the prosecution's use of

peremptory challenges "to remove potential petit jurors who are

members of a cognizable group on the basis of their presumed

group bias."   511 A.2d at 1154.    Before analyzing the merits of

Simmons' peremptory challenge claim, we must resolve two

preliminary issues:   (1) whether Batson and Gilmore apply to this

case, and (2) whether Simmons' claim is barred under the

"adequate and independent state ground" doctrine.2

                                   A.

          In Allen v. Hardy, 478 U.S. 255, 106 S. Ct. 2878 (1986)
(per curiam), the Court concluded that Batson does not apply

retroactively on collateral review of a final conviction.     Id. at

258, 106 S. Ct. at 2879.   In Griffith v. Kentucky, 479 U.S. 314,


2
 . The parties do not dispute and our review reveals that
Simmons properly exhausted his peremptory challenge claim, and
speedy appeal claim, in the state courts. See Rose v. Lundy, 455
U.S. 509, 518-20, 102 S. Ct. 1198, 1203-04 (1982).
107 S. Ct. 708 (1987), however, the Court held that Batson does

apply "to litigation pending on direct state or federal review or

not yet final when Batson was decided."   Id. at 316, 107 S. Ct.

at 709.   It reasoned that the integrity of judicial review

requires consistent application of "our best understanding of

governing constitutional principles," id. at 323, 107 S. Ct. at

713 (quoting Mackey v. United States, 401 U.S. 667, 679, 91 S.

Ct. 1160, 1173 (1971)), and fairness requires allegiance to "the

principle of treating similarly situated defendants the same."

Id.

          Here, Simmons' 1977 conviction did not become final

until 1991 when the United States Supreme Court denied his

petition for a writ of certiorari.   See Allen, 478 U.S. at 258

n.1, 106 S. Ct. at 2880 n.1 (citation omitted).   Although this

case was before the Supreme Court in 1982, in conjunction with

Simmons' efforts to get a direct appeal, it did not then become

final in the relevant sense.   Simmons' first appeal as of right

was the critical missing step, and his intervening applications

for collateral review did not render his conviction final.     See

Caspari v. Bohlen, ___ U.S. ___, ___, 114 S. Ct. 948, 953 (1994).
Accordingly, the Batson decision, announced in 1986, applies to

this case.

          The irony is that the egregious delay in granting

Simmons a direct appeal inadvertently gave him the benefit of the

Batson decision.   Had Simmons received a timely review, his

conviction would have been final before 1986.   In a sense, he is

a "chance beneficiary" of the Batson rule.   See Griffith, 479
U.S. at 323, 107 S. Ct. at 713.    Simmons, however, was not

similarly situated with other defendants convicted in 1977 whose

convictions became final before Batson was decided.    Those other

defendants did not suffer a 13-year delay before getting

appellate review, and we see no reason to bend the rule in

Griffith to deny Simmons the constitutional protection afforded

in Batson.

                                  B.

           The Gilmore court itself delineated its holding's rule

of application:
          [T]he new rule will apply to this defendant, trials in
          which the jury selection commenced on or after the date
          of the Appellate Division opinion [which was affirmed
          in Gilmore], and cases now on appeal in which the issue
          was preserved in the trial court and the record is
          adequate to raise the issue.


511 A.2d at 1169.   Applying these instructions, the Appellate

Division rejected Simmons' contention that the reconstructed

trial record was insufficient to permit it to review his Gilmore

claim.   It held that Simmons' argument "must of necessity fail
because we consider this to be attempting a retroactive

application of Gilmore under the procedural history and

circumstances of this case."3   The Appellate Division's opinion

3
 . The Appellate Division noted in passing that Simmons had
filed no objections to the reconstructed record in the state
trial court. Before the reconstruction hearings, however, the
district court expressly granted Simmons permission to seek its
ruling on the adequacy question. Simmons, in fact, challenged
the sufficiency of the record in the district court, but his
motion was denied "without prejudice to petitioner's right to
raise these issues in the state appellate proceedings and in any
future federal habeas corpus petition following exhaustion of
state remedies." We will not presume a procedural default or
yields three potential justifications for this conclusion:

(1) since Simmons' direct appeal followed his applications for

collateral review, it was not legitimately "on appeal" for

purposes of applying Gilmore retroactively, (2) the Gilmore issue

was not sufficiently "preserved in the trial court," and (3) the

reconstructed record was not "adequate to raise the issue," and

the resulting prejudice was appropriately assigned to Simmons.

           Although its specific rationale was not plainly stated,

the Appellate Division clearly rendered a decision based on state

law grounds which was later affirmed by the state supreme court.

Simmons had also raised a Batson claim in his direct appeal,

stating in his brief that "the rule of Batson is applicable to

the case at bar," but the Appellate Division did not address the

Batson issue.   It relied solely on state law authority and based

its decision to reject Simmons' peremptory challenge claim on

Gilmore.   "[I]t is a well-established principle of federalism

that a state decision resting on an adequate foundation of state

substantive law is immune from review in the federal courts,"

Wainwright v. Sykes, 433 U.S. 72, 81, 97 S. Ct. 2497, 2503 (1977)

(citations omitted), and we lack jurisdiction to overrule the

Appellate Division's conclusion that Gilmore does not apply
retroactively to Simmons' case.   See Fox Film Corp. v. Muller,

296 U.S. 207, 210, 56 S. Ct. 183, 184 (1935) ("where the judgment

of a state court rests upon two grounds, one of which is federal

(..continued)
waiver because Simmons apparently relied on the district court's
assurances.
and the other nonfederal in character, our jurisdiction fails if

the nonfederal ground is independent of the federal ground and

adequate to support the judgment").

                                  C.

            Next, we consider whether the Appellate Division's

dismissal of Simmons' Gilmore claim bars consideration of his

Batson claim under the "adequate and independent state ground"

doctrine.   Although Simmons raised a Batson claim in his reopened

petition for a writ of habeas corpus, the district court only

analyzed the Appellate Division's dismissal under Gilmore.

Simmons v. Arvonio, 796 F. Supp. 777, 790 (D.N.J. 1992).      The

district court concluded that this dismissal was not reviewable

because it was based on substantive state law and disposed of

Simmons' peremptory challenge claim.    Id. (citing Sykes, 433 U.S.

at 81, 97 S. Ct. at 2503).    For the following reasons, we

conclude that the district court erred.

            In Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546

(1991), the Court reiterated that it "will not review a question

of federal law decided by a state court if the decision of that

court rests on a state law ground that is independent of the

federal question and adequate to support the judgment."    Id. at
729, 111 S. Ct. at 2553-54.    Here, the Appellate Division's

judgment on Simmons' state Gilmore claim was clearly

"independent" of his federal Batson claim.    The court cited no

federal case law and did not refer to the Fourteenth Amendment or

Batson decision in concluding that Gilmore did not apply
retroactively to Simmons' case.    Moreover, the Gilmore court
explicitly based its decision "on the New Jersey Constitution,

which protects fundamental rights independently of the United

States Constitution."   511 A.2d at 1157.4   The Appellate

Division's decision under Gilmore, however, was not "adequate" to

support its judgment.   The unavailability of a state

constitutional claim is not dispositive as to the availability or

merits of an analogous federal constitutional claim:
          [T]he federal habeas petitioner who claims he is
          detained pursuant to a final judgment of a state court
          in violation of the United States Constitution is
          entitled to have the federal habeas court make its own
          independent determination of this federal claim without
          being bound by the determination on the merits of that
          claim reached in the state proceedings.


Sykes, 433 U.S. at 87, 97 S. Ct. at 2506-07.

          If the Appellate Division had explicitly addressed and

                                                    dismissed

                                                    Simmons' Batson

                                                    claim based on

                                                    its analysis of

                                                    federal law,

                                                    then this claim

                                                    would clearly

                                                    be subject to

                                                    federal habeas

4
 . Although the protections afforded under Batson and Gilmore
are overlapping, the two cases rest on different foundations.
See Pemberthy v. Beyer, 19 F.3d 857, 859 (3d Cir. 1994)
(recognizing dual protection of New Jersey and federal
constitutions); State v. Bey, 610 A.2d 814, 827 (N.J. 1992)
(same).
review.    For

example, if it

had dismissed

both the

Gilmore and

Batson claims

on state and

federal

retroactivity

grounds, then

its judgment

regarding the

retroactive

application of

Batson would be

subject to

review.

Conversely, if

the Appellate

Division had

ruled that

Simmons waived

his Batson
claim based on

state

procedural law,

then its
                                                   judgment would

                                                   be immune from

                                                   federal review.

                                                   But, dismissing

                                                   a state

                                                   constitutional

                                                   claim on state

                                                   law grounds

                                                   does not

                                                   preclude

                                                   federal habeas

                                                   review of a

                                                   parallel

                                                   federal

                                                   constitutional

                                                   claim.

                               III.

                                A.

          The first issue is whether Simmons' Batson claim is

preserved for review.   During the reconstruction hearings,

Simmons' trial counsel testified as follows:
     Q:   Do you recall making a motion for mistrial on the basis
          that the State was improperly excluding blacks on the
          basis of race?

     A:   Again, I cannot say with certainty that I made such a
          motion. I don't have an independent recollection of
          it. I probably would have given the flavor and the
          context of this case, et cetera, that I would have made
          such a motion. Although, I cannot say that I -- I
          can't say, categorically, that I did. I probably did,
          but I can't say that.
In response to a question about the timing of the motion, he

stated that:    "I don't have an independent recollection, but I

would think that I definitely made it before the jury was sworn.

I would not make it after the fact."    Finally, counsel attested

that:   "At that time I was making the motion, not in every case,

but I recall making a motion for a systematic exclusion by the

State in several other cases during that period of time."

            The assistant prosecutor's testimony is not to the

contrary. He testified as follows:
     Q:   Do you recall the defense making a motion for a
          mistrial charging that the State systematically
          excluded black jurors?

     A:     No. I believe that that happened, after reviewing
            notes that Judge Marchese made, but without having
            reviewed those notes, I would have no recollection of
            that occurring.


Although the notes of the judge who presided over the voir dire,

Judge Leopizzi, do not refer to a defense motion based on

systematic exclusion, the file of the judge who presided over the

trial and sentencing, Judge Marchese, includes the following

notation:    "Defense motion for mistrial charging State with

systematically excluding blacks from jury.    Leopizzi denied."

The court clerk's records indicate that defense counsel made

several motions for a mistrial before the jury was sworn,

although they do not specify the grounds for these motions.

Based on this record, we are satisfied that Simmons' Batson claim
was preserved for appeal.

                                 B.
           Having asserted a claim that the prosecution based its

peremptory challenges on race, Simmons had the burden of

establishing a prima facie case.   A Batson analysis proceeds in

three steps:   (1) the defendant must make a prima facie showing

of a violation, (2) if the defendant succeeds, the prosecution

must articulate a race-neutral explanation, and (3) the trial

court must then determine whether the defendant has proven

purposeful discrimination.   See United States v. Uwaezhoke, 995

F.2d 388, 392 (3d Cir. 1993) (quoting Hernandez v. New York, 500

U.S. 352, 358-59, 111 S. Ct. 1859, 1865-66 (1991)), cert. denied,

___ U.S. ___, 114 S. Ct. 920 (1994).   In United States v.

Clemons, 843 F.2d 741 (3d Cir.), cert. denied, 488 U.S. 835, 109

S. Ct. 97 (1988), we elaborated on the first step of a Batson

analysis, listing five factors that are relevant to a prima facie

case:   (1) the number of racial group members in the panel, (2)

the nature of the crime, (3) the race of the defendant and the

victim, (4) a pattern of strikes against racial group members,

and (5) the prosecution's questions and statements during the

voir dire.   Id. at 748.

           By the time of the reconstruction hearings, eleven

years after Simmons' trial, defense counsel did not recall how

many African Americans were in the venire, how many were struck

by the prosecution, or how many were seated as jurors.   The

transcript from a pre-trial hearing held the day after the jury

had been selected, however, records defense counsel's estimate

that 130 potential jurors had been questioned.   Additionally,

trial transcripts disclose that, following an in-court
identification of Simmons, defense counsel stated:    "Let the

record reflect that he pointed to the defendant, Simmons.       The

only black male in the courtroom except for Mr. Jones, Juror

number 2."

           The assistant prosecutor similarly did not remember the

total number of people in the venire, or its racial composition.

He testified during the reconstruction hearings that "there could

have been" as many as 20 African Americans, but that he did not

think "there would have been" as many as 40.    The assistant

prosecutor recalled juror number two, the foreperson of the jury,

as being an African American man, and he was "quite sure" that

there were other African American venirepersons besides juror

number two.    He did not know how many peremptory challenges he

used to strike African Americans from the jury.    The court

clerk's records reflect that both sides used all of their

peremptory challenges:    "Fourteen jurors in the box and all

challenges have been exhausted."

           Simmons is African American and thus a member of a

cognizable racial group.    Based on his motion for a mistrial

"charging [the] State with systematically excluding blacks from

[the] jury," we conclude that the prosecution struck at least one

potential African American juror.    See Clemons, 843 F.2d at 747

(striking single juror could constitute prima facie case).      The

fact that juror number two was African American is not

dispositive.    See id. ("mere presence of a single black on the

jury would not necessarily prevent a finding of a prima facie

case").   It appears that between 20 and 40 other African
Americans may have been in the venire, although defense counsel

and the assistant prosecutor were unable to recall with

certainty.

          The nature of the crime and its racial configuration --

the murder and robbery of an elderly caucasian physician by a

young African American man -- contribute significantly to

Simmons' prima facie case.   See Jones v. Ryan, 987 F.2d 960, 971

(3d Cir. 1993) (considering substantive charge, "robbery of an

elderly white man by a black man," in analyzing defendant's prima

facie case).   Presumably recognizing the potential that the trial

would become racially charged, the judge specifically questioned

"jurors about the fact that the victim in this case was white,

[and] the defendant was black, [] attempting to ascertain whether

jurors would have any difficulty with this."   See also id. at 971

n.5 (noting that the trial court had asked the venire whether the

respective race of the defendant and alleged victim would affect

their judgment).

          Although we cannot evaluate the last two Clemons

factors because transcripts of the voir dire are not available,

we conclude that Simmons has established a prima facie case of a

Batson violation.   The combination of Simmons' race, the

prosecution's exclusion of at least one potential African

American juror, and the circumstances surrounding the crime are

sufficient to meet Simmons' prima facie burden.   Thus, our focus

shifts to the prosecution and its ability to come forward with

race-neutral explanations for its peremptory challenges.

                                C.
           In Mayer v. City of Chicago, 404 U.S. 189, 92 S. Ct.

410 (1971), the Supreme Court reiterated that "[i]n all cases the

duty of the State is to provide the indigent as adequate and

effective an appellate review as that given appellants with

funds."    Id. at 193-94, 92 S. Ct. at 414 (quoting Draper v.

Washington, 372 U.S. 487, 496, 83 S. Ct. 774, 779 (1963)).      "In

terms of a trial record, this means that the State must afford

the indigent a record of sufficient completeness to permit proper

consideration of [his or her] claims."    Id. at 194, 92 S. Ct. at

414 (internal quotations omitted).    Although a full verbatim

transcript is not automatically required, the Mayer Court

concluded that an "appellant cannot be denied a 'record of

sufficient completeness' to permit proper consideration of his

claims."   Id. at 198, 92 S. Ct. at 416; see also Karabin v.

Petsock, 758 F.2d 966, 969 (3d Cir.) (holding that defendant must

show "colorable need" for complete transcript), cert. denied, 474

U.S. 857, 106 S. Ct. 163 (1985).

           The problem here is self-evident.   No one recalls how

many potential African American jurors were peremptorily

challenged, and the assistant prosecutor does not remember and

has no notes indicating why he struck individual venirepersons.

Both parties agree that further reconstruction hearings would be

fruitless.   Simmons' Batson claim simply cannot be reviewed
without a transcript of the voir dire to allow the reviewing

court to examine whom the assistant prosecutor excluded and why.

We do not and cannot know whether Simmons' jury selection process

was infected by racial discrimination.
          Nevertheless, Simmons raised a colorable claim that the

prosecution systematically excluded African Americans from the

jury, and the prejudice stemming from our inability to review

this claim is not fairly borne by him.5   The seriousness of this

claim and its potential merit demand some form of habeas relief.

As explained by the Batson Court, "[t]he core guarantee of equal

protection, ensuring citizens that their State will not

discriminate on account of race, would be meaningless were we to

approve the exclusion of jurors on the basis of such assumptions,

which arise solely from the jurors' race."   476 U.S. at 97-98,

106 S. Ct. at 1723.   It would be a grinding injustice to Simmons

were he to suffer at the hand of a prosecutor who practiced

racial discrimination through the use of peremptory challenges

and then contributed to a delay that shielded his actions from

review.   The potential harm extends beyond Simmons and the

excluded jurors:   "Selection procedures that purposefully exclude

black persons from juries undermine public confidence in the

fairness of our system of justice."   Id. at 87, 106 S. Ct. at

1718.

                               IV.

          Simmons contends that the 13-year delay also violated

his right to due process and a speedy appeal, providing another


5
 . The district court opinion granting Simmons a conditional
writ of habeas corpus details defense counsel's actions and non-
actions with respect to obtaining trial transcripts and the
state's failure to preserve the necessary materials for preparing
transcripts. See Simmons v. Beyer, 689 F. Supp. 432, 448-49
(D.N.J. 1988).
basis for habeas relief.   It is axiomatic that once an appeal as

of right has been granted, "the procedures used in deciding

appeals must comport with the demands of the Due Process and

Equal Protection Clauses of the Constitution."     Evitts v. Lucey,

469 U.S. 387, 393, 105 S. Ct. 830, 834 (1985).    The

constitutional touchstone is that the appellate procedure must

furnish the components necessary for meaningful review.    See,

e.g., Douglas v. California, 372 U.S. 353, 358, 83 S. Ct. 814,

817 (1963) (right to counsel on direct appeal); Griffin v.

Illinois, 351 U.S. 12, 19-20, 76 S. Ct. 585, 590-91 (1956) (right

to transcript on direct appeal).     Due process guarantees an

appeal that is both "adequate and effective."    Evitts, 469 U.S.

at 392-94, 105 S. Ct. at 834-35.     Since New Jersey provides for

an appeal as of right, N.J. Const. Art. 6, § 5, ¶ 2, we must

determine whether the 13-year delay constitutionally impaired the

appellate review that Simmons eventually received.

           Although the Supreme Court has not explicitly

recognized a criminal defendant's right to a speedy appeal, in

Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987) (Burkett I),

we held that the Due Process Clause "guarantees a reasonably

speedy appeal if the state has chosen to give defendants the

right to [appeal]."   Id. at 1221.    Numerous other courts of

appeals have also acknowledged a due process right to a speedy

appeal.6   In Burkett I, we applied the criteria articulated in

6
 . See, e.g., Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.
1994); United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993)
(en banc), cert. denied, ___ U.S. ___, 114 S. Ct. 1230 (1994);
Cody v. Henderson, 936 F.2d 715, 719 (2d Cir. 1991); United
Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972), to

determine whether appellate delay had violated due process.      826

F.2d at 1222; accord Harris, 15 F.3d at 1559; Tucker, 8 F.3d at

676; Johnson, 732 F.2d at 381-82; Rheuark, 628 F.2d at 303.      In

Barker, the Supreme Court identified four factors to balance when

examining an alleged speedy trial violation:    "Length of delay,

the reason for the delay, the defendant's assertion of his right,

and prejudice to the defendant."    407 U.S. at 530, 92 S. Ct. at

2192.   Although the interests at stake before trial and before

appeal obviously differ, they are sufficiently similar to warrant

the same general approach.    See Moore v. Arizona, 414 U.S. 25,

27, 94 S. Ct. 188, 190 (1973) (Barker factors may carry

"different weight where a defendant is incarcerated after

conviction"); Cody, 936 F.2d at 719 ("Barker factors should not

be applied uncritically" in speedy appeal context).

            The 13-year delay in this case is an outrage, and that

Simmons' appeal as of right "slipped through the cracks" is

shameful.   See Burkett I, 826 F.2d at 1225 (five and one-half

year delay in sentencing and appeal warranted discharge); cf.

Harris, 15 F.3d at 1560 (two-year appellate delay ordinarily
gives rise to a presumption of inordinate delay).    The subsequent

(..continued)
States v. Johnson, 732 F.2d 379, 381 (4th Cir.), cert. denied,
469 U.S. 1033, 105 S. Ct. 505 (1984); United States v. Pratt, 645
F.2d 89, 91 (1st Cir.), cert. denied, 454 U.S. 881, 102 S. Ct.
369 (1981); Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980),
cert. denied, 450 U.S. 931, 101 S. Ct. 1392 (1981); cf. Allen v.
Duckworth, 6 F.3d 458, 459 (7th Cir. 1993) (assuming excessive
delay in appeal can violate due process), cert. denied, ___ U.S.
___, 114 S. Ct. 1106 (1994).
period of litigation marking Simmons' efforts to obtain a direct

appeal apparently took on a life of its own, without regard for

fundamental notions of fairness and due process.

            The district court's finding that the reason for the

delay was ineffective assistance by appointed trial counsel and

the Public Defender is clearly correct.   See Simmons, 689 F.

Supp. at 443-44.    We recognize that "nominal representation on

appeal violates due process because 'a party whose counsel is

unable to provide effective representation is in no better

position than one who has no counsel at all.'"     Simmons v.

Reynolds, 898 F.2d 865, 868 (2d Cir. 1990) (quoting Evitts, 469

U.S. at 396, 105 S. Ct. at 836).    Responsibility for this delay

cannot be charged against Simmons, the victim of ineffective

lawyers.    See Harris, 15 F.3d at 1562 (delay caused by Public

Defender's inability to timely perfect an appeal should not be

attributed to petitioner); Coe v. Thurman, 922 F.2d 528, 531 (9th

Cir. 1990) ("failures of court-appointed counsel and delays by

the court are attributable to the state").   In contrast to his

lawyers' performance, Simmons himself timely requested and

diligently sought appellate review.   See Simmons, 689 F. Supp. at
435-36 (summarizing state court findings regarding Simmons'

actions).

            Simmons has been undeniably prejudiced by the 13-year

delay.   In Burkett I, we adopted a modified version of the three

interests identified in Barker, 407 U.S. at 532, 92 S. Ct. at

2193, as being relevant to prejudice in a speedy trial context.
Accordingly, we assess prejudice in light of the following

interests in promoting timely appeals:
          (1) prevention of oppressive incarceration pending
          appeal; (2) minimization of anxiety and concern of
          those convicted awaiting the outcome of their appeals;
          and (3) limitation of the possibility that a convicted
          person's grounds for appeal, and his or her defenses in
          case of reversal and retrial, might be impaired.


Burkett I, 826 F.2d at 1222 (quoting Rheuark, 628 F.2d at 303

n.8).

          Here, the third factor is dispositive:   Simmons' claim

on appeal that the prosecution systematically excluded African

Americans from the jury is no longer reviewable.   This is not a

case in which deprivation of a timely appeal has engendered "the

possibility that a convicted person's grounds for appeal, and his

or her defenses in case of reversal and retrial might be

impaired."   Id. at 1225 (quoting Rheuark, 628 F.2d at 303 n.8).

Simmons has suffered actual prejudice because his Batson claim is

unreviewable on the reconstructed record.   Cf. United States v.

Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994) (judicial bias claim
unreviewable because of long-delayed and woefully inadequate

trial transcript).   Moreover, an impediment to a ground for

appeal is the most serious form of prejudice "because the

inability of a defendant adequately to prepare his [or her] case

skews the fairness of the entire system."   Barker, 407 U.S. at

532, 92 S. Ct. at 2193.

          Each Barker factor indicates that the 13-year appellate

delay violated Simmons' right to due process and a speedy appeal.

We agree with the district court that due process was violated,
but disagree that the violation was cured when the Appellate

Division granted him the right to appeal.    See Simmons, 796 F.

Supp. at 791.    If Simmons had received an adequate and effective,

though excessively delayed appeal, then the issue of prejudice

would become more difficult.7   However, the delay in this case

"substantially affect[ed] the fairness of the appellate

proceeding," Cody, 936 F.2d at 722, and we conclude that the due

process violation caused by the delay compels some form of habeas

relief.

                                 V.

          Having concluded that Simmons is entitled to relief for

both his potentially meritorious, but unreviewable, Batson claim

and his speedy appeal claim, we consider what relief is

appropriate.    The two violations are intertwined:   Simmons'

7
 . See Heiser v. Ryan, 15 F.3d 299, 303-04 (3d Cir. 1994) (11½-
year delay in hearing motion to withdraw guilty plea did not
warrant habeas relief where petitioner's ability to show coercion
was not impaired), petition for cert. filed, (U.S. June 2, 1994)
(No. 93-9464); Harris, 15 F.3d at 1566 (once conviction affirmed,
no entitlement to habeas relief "unless the petitioner can show
actual prejudice to the appeal, itself, arising from the delay");
Tucker, 8 F.3d at 676 (despite three and one half year delay,
once his conviction was affirmed, petitioner received all he was
due from the legal process); Allen, 6 F.3d at 460 (despite a four
and one half year delay, habeas corpus action became moot once
petitioner's conviction was affirmed); Muwwakkil v. Hoke, 968
F.2d 284, 285 (2d Cir.) (13-year delay prior to direct appeal
does not warrant habeas relief where conviction was ultimately
affirmed because there was no actual prejudice), cert. denied,
___ U.S. ___, 113 S. Ct. 664 (1992); Johnson, 732 F.2d at 382-83
(once appeal was heard and found lacking in merit, there was no
basis for ordering defendant's release). But cf. Doggett v.
United States, ___ U.S. ___, ___, 112 S. Ct. 2686, 2693 (1992)
("Thus we generally have to recognize that excessive delay
presumptively compromises the reliability of a trial in ways that
neither party can prove or, for that matter, identify.").
Batson claim eludes review because the delay in his direct appeal

resulted in the loss or destruction of the voir dire transcripts,

and his speedy appeal claim satisfies the prejudice requirement

because the delay impaired appellate review of his Batson claim.

             In Heiser v. Ryan, 15 F.3d 299 (3d Cir. 1994) cert.

denied, Heiser v. Stepenik, 115 S. Ct. 313 (1994), we asserted

that:     "One of the most troublesome issues that faces a federal

court sitting on a state prisoner's petition for habeas corpus is

the appropriate remedy to fashion when the state proceedings have

been characterized by excessive and indefensible delay."     Id. at

300.    Our task is "to fashion relief designed to rectify the

prejudice of the violation."     Burkett v. Fulcomer, 951 F.2d 1431,

1447 (3d Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 3055

(1992).

             The usual remedy for a Batson violation is to grant a

petition for habeas corpus, but allow the state an opportunity to

retry the petitioner before a properly selected jury.     See Jones,

987 F.2d at 975 (remanding for district court "to grant the writ

without prejudice to the Commonwealth retrying the case");

Harrison v. Ryan, 909 F.2d 84, 88 (3d Cir.) (affirming order
"granting the petitioner's writ of habeas corpus and requiring

the Commonwealth to either retry the petitioner within 90 days or

release him"), cert. denied, 498 U.S. 1003, 111 S. Ct. 568

(1990).     Although Simmons has raised a hybrid Batson claim, which

draws on equal protection and due process concepts and is based

on our inability to review his Batson allegations, we believe
that the same remedy should apply.     For a speedy trial violation,
the typical remedy seeks "to counteract any resulting prejudice

demonstrated by a petitioner."   Burkett I, 826 F.2d at 1222.

Thus, we recognize that a "discharge is warranted where

attempting an alternate remedy would not vitiate the prejudice of

the fundamental unfairness or would itself violate a petitioner's

constitutional rights."    Id. (citations omitted).

          "[H]abeas courts ordinarily have fashioned a remedy

designed to spur the state courts to fulfilling their

constitutional obligations to the defendant."    Heiser, 15 F.3d at

306 (citations omitted).   Here, Simmons' right to a jury

selection process that is untainted by racial discrimination is

at the core of his Fourteenth Amendment right to equal

protection.    Batson, 476 U.S. at 97-98, 106 S. Ct. at 1723.

Accordingly, the constitutional integrity of his current

confinement is seriously in question.   Given the monumental delay

in this case and Simmons' constitutionally suspect incarceration,

we have considered whether an unconditional release would be

appropriate.   Our difficulty lies in our inability to know

whether the prosecution, in fact, systematically excluded African

Americans from the jury.   If it were possible to review Simmons'

Batson claim, and it were found to be without merit, then the
prejudice stemming from the delay alone would be a slender reed

on which to support his unconditional release.    See Simmons, 898

F.2d at 869 ("Release 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.").    We conclude that the relief best
tailored to remedy the prejudice Simmons has suffered is a new

trial and fair jury selection process.




                               VI.

          Therefore, we will reverse the judgment of the district

court and remand the cause for it to grant Simmons' petition for

a writ of habeas corpus, give the state an opportunity to retry

Simmons, and specify the time period within which the state must

retry or release him.



Simmons v. Beyer

No. 93-5370




HUTCHINSON, Circuit Judge, Concurring.




          In this difficult case, I believe the Court correctly

applies Batson v. Kentucky, 476 U.S. 79 (1986), to Simmons's pre-
Batson conviction, even though Simmons raises it in a collateral

attack on his state conviction.   Compare Allen v. Hardy, 478 U.S.

255 (1986) (per curiam) (courts should not retroactively apply

new criminal procedure rule on collateral review of convictions

becoming final before the new rule is announced) and Teague v.
Lane, 489 U.S. 288 (1989) (same) with Griffith v. Kentucky, 479

U.S. 314 (1987) (courts should retroactively apply a new rule of
criminal procedure to those cases pending on direct review or not

yet final when the new rule is announced).   I, therefore, concur

in the result.

          I agree with the majority that this case is made more

difficult because the reconstructed record is inadequate to

review fully the Batson issue.8   This particular difficulty

implies that Batson's retroactive application to Simmons's case

is important to the grant of the new trial remedy, which we all

agree Simmons should be afforded.   The precise retroactivity

problem this case presents, however, has never been directly

before us or the Supreme Court.   I write separately because this

important and unique retroactivity issue warrants an analysis.

          Like the majority, I am reluctant to hold that the

State's delay in hearing Simmons's appeal, in and of itself,


8
 . After concluding that Batson applies, the majority then
recognizes a "self-evident" problem; i.e., it cannot decide the
Batson issue because

          [n]o one recalls how many potential African
          American jurors were peremptorily challenged,
          and the assistant prosecutor does not
          remember and has no notes indicating why he
          struck individual venirepersons. Both
          parties agree that further reconstruction
          hearings would be fruitless. Simmons' Batson
          claim simply cannot be reviewed without a
          transcript of the voir dire to allow the
          reviewing court to examine whom the assistant
          prosecutor excluded and why. We do not and
          cannot know whether Simmons' jury selection
          process was infected by racial
          discrimination.

See Majority Op. at 15. Simmons, indeed, concedes as much.      See
Brief for Appellant Brief at 26.
establishes sufficient prejudice permitting us to conclude, as a

matter of law, that his general due process right to a speedy

appeal has been violated.   See Opinion of Court, typescript at

20-21.   My decision, thus, rests not only upon the determination

that this court should apply Batson, but also on two other

critical factors; namely, the State's inordinate delay in

granting Simmons's right of appeal and the partial loss of

certain voir dire transcripts.9   It is the concurrent existence

of these three factorsincluding the sad failure of New

Jersey's otherwise generally efficient judicial system to provide

Simmons with a reasonably prompt and adequate appeal of his 1977

murder conviction that allows us to grant the remedy of a new

trial.

          The first factor is the State's excessive delay, nearly

fourteen years, in granting Simmons's right of appeal.   As we

held in Burkett, 826 F.2d at 1221, a state's delay in affording a

convicted person a direct appeal, as of right, may violate his

general Fourteenth Amendment right to due process, as opposed to

the more specific Sixth Amendment speedy trial right available to
9
 . At the very least, this rationale avoids any need to remand
this case for further fact finding on the prejudice issue. See
Hakeem v. Beyer, 990 F.2d 750, 771 (3d Cir. 1993) (remand for
further fact finding on cause of delay relating to speedy trial
issue); Burkett v. Cunningham, 826 F.2d 1208, 1227 (3d Cir. 1987)
(remand on one of three convictions to make a determination
concerning prejudice). Any further delay in this case is
undesirable. Hence, like the majority, I favor simplifying the
prejudice issue by avoiding reliance solely on the delay Simmons
has suffered. See Majority Op. at 20-21 ("If Simmons had
received an adequate and effective, though excessively delayed
appeal, then the issue of prejudice would become more
difficult.").
state prisoners under the incorporation doctrine.   Id. at 1219.

In Burkett, we partially analogized the right to a speedy appeal

with the right to a speedy trial, but modified speedy appeal

analysis to emphasize the importance of a finding of prejudice.

Instead of prejudice being merely a key factor or the "most

important factor," see Hakeem, 990 F.2d at 760, we stated that

"prejudice is generally a necessary . . . element of a due

process claim."   Burkett, 826 F.2d at 1221 (quoting United States

v. Lovasco, 431 U.S. 783, 790 (1977)).    In adapting the

"prejudice" factor to the judgment of appellate delays, we then

delineated three interests that are protected by prompt appeals:
          (1) prevention of oppressive incarceration
          pending appeal; (2) minimization of anxiety
          and concern of those convicted awaiting the
          outcome of their appeals; and (3) limitation
          of the possibility that a convicted person's
          grounds for appeal, and his or her defenses
          in case of reversal and retrial, might be
          impaired.



Id. at 1222.
          Having made these observations, we nevertheless refused

to hold that an on-going, combined delay of at least five years

and three months in sentencing Burkett and processing his appeal

established prejudice as a matter of law as to one of his three

convictions.   Id. at 1227.   Instead, we remanded Burkett's case

to the district court for fact finding as to prejudice and

thereafter for balancing the degree of prejudice, if any, with

the other Barker factors to determine whether Burkett's right to

a speedy appeal had been violated.    Id.; see Barker v. Wingo, 407
U.S. 514, 530 (1972) (enunciating four factors to consider in

speedy trial analysis).

            The second critical factor in this case concerns the

loss of the transcript relating to the voir dire of Simmons's

jurors before he received his direct appeal nunc pro tunc as a

result of his federal habeas petition.     This partial loss of the

transcript is material on prejudice only if Batson applies

retroactively to Simmons's case.10    The majority relies on the

loss of this part of the trial transcript in holding that this

case involves prejudice as a matter of law.     I, too, believe this

fact weighs heavily.    It permits us easily to conclude that the

reconstructed record is inadequate to afford Simmons an adequate

and effective appeal.     See Majority Op. at 15.   Thus, the

majority states:    "we cannot evaluate the last two Clemons

factors because transcripts of the voir dire are not

available. . . ."    Majority Op. at 14; see United States v.

Clemons, 843 F.2d 741 (3d Cir.), cert. denied, 488 U.S. 835

(1988).11

10
 . It is the inability to review the Batson issue, not a
violation of Batson itself, that is material to our finding of
prejudice in this case. Simmons also argues that the loss of the
voir dire and other transcript parts affected his ability to
establish that his trial in the Patterson vicinage was
constitutionally unfair entitling him to have his motions for a
venue or venire change granted. I believe this argument lacks
merit and, like the majority, am unable to discern any other
issue Simmons has raised for which the reconstructed record is
inadequate. See Majority Op. at 2 n.1.
11
 . Interestingly, the majority then concludes that the
reconstructed record is sufficient to show a prima facie Batson
claim. See Majority Op. at 14. In so concluding, I believe the
majority goes beyond Simmons's argument. As I read his brief, he
          Thus, as noted, it is clear that Batson's retroactive

application to this collateral attack on Simmons's pre-Batson

conviction is essential to our mandate requiring New Jersey to

grant Simmons a new trial within a reasonable time, to be

determined by the district court, or release him.    I turn now to

an analysis of the retroactivity issue.

          In Griffith, the text of the Supreme Court's holding

states that Batson is to be applied to all cases "pending on

direct review or not yet final" at the time Batson was decided.

Griffith, 479 U.S. at 328.    Additionally, the Griffith court

stated that "final" "mean[s] a case in which a judgment of

conviction has been rendered, the availability of appeal

exhausted, and the time for a petition for certiorari elapsed or

a petition for certiorari finally denied."     Id. at 321 n.6

(emphasis added) (citations omitted).     Accord Allen, 478 U.S. at

258 n.1 (citation omitted).   Because of the inordinate delay in

Simmons's appeal that is attendant upon the circumstances of this

case, he had not yet "exhausted" the "availability of appeal"

when Batson was decided.   In fact, his direct appeal, which took

place after Batson, was not decided until nearly fourteen years
after he was convicted, albeit only nunc pro tunc, as a result of

the district court's earlier order in this habeas proceeding.

(..continued)
argues he cannot make a prima facie showing of a Batson violation
on the reconstructed record. See Brief of Appellant at 26.
Whether we analyze Simmons's case on the basis of this concession
or, as the majority does, it is the deficiency in the
reconstructed record with respect to the voir dire transcript
that establishes irremediable prejudice to Simmons.
          It can at least be argued, however, that literal

application of Griffith's text to Simmons's case is in tension

with one of the Griffith rationales.      Simmons is not similarly

situated to Batson, Griffith, or Brown (the petitioner whose case

the Supreme Court consolidated with Griffith).      Rather, Simmons,

convicted in December 1977 of a brutal murder on strong but not

overwhelming evidence, is a "chance beneficiary" of counsel's

failure to secure him the timely, direct appeal that the State of

New Jersey grants as a matter of right to all persons convicted

of a crime.12    See Griffith, 479 U.S. at 327.   Griffith, Brown,

and Batson were tried in the same court within three months of

each other.     Id.   The same prosecutor presented the State's case

against all three and appears to have used peremptory challenges

to deny them the right to be judged by an impartial jury, from

which no person was excluded because of race.     Id.

          Simmons was tried almost ten years before Batson was

even decided.    Except for his counsels' inattention, his appeal

would have been filed in January 1978, within 45 days of his

conviction or, at least, no more than 30 days thereafter.13     And,
12
 . Once a state gives a convicted criminal defendant a right to
appeal, the Fourteenth Amendment due process clause requires the
State to provide an adequate means, including effective
assistance of counsel, to process the appeal. See Evitts v.
Lucey, 469 U.S. 387 (1985); Douglas v. California, 372 U.S. 353
(1963); Griffin v. Illinois, 351 U.S. 12 (1956).
13
 . New Jersey Rule 2:4-4(a) permits its appellate courts to
extend the time for appeal by 30 days. Compare New Jersey R.
2:4-4(a) (1995) ("The appellate court, upon a showing of good
cause and the absence of prejudice, may extend the time fixed by
R. 2:4-1(a) (final judgment) . . . for a period not exceeding 30
days, but only if the notice of appeal or notice of petition for
certification was in fact served and filed within the time as
with the consequent likelihood that the appellate process would

have been completed long before Batson, Simmons's conviction

would have become unassailable.14

          I do not believe it can fairly be said that Simmons,

unlike Griffith or Brown, will suffer from any "actual inequity"

if Batson's new rule is not retroactively applied to his 1977

conviction.   See Griffith, 479 U.S. at 327-28.   Whatever

inequities may exist press upon other persons who were convicted

by juries from which African Americans were shamefully excluded

and then had those convictions affirmed in timely appeals before

Batson was decided, or perhaps the people of New Jersey who may

fail to understand how a person convicted of direct participation

in the brutal murder of an elderly doctor, who ventured into the

streets in the middle of the night to respond to an emergency, is

afforded a new trial or released.

          Indeed, at first glance it might appear that Simmons

has been saved by the legal fiction of an appeal nunc pro tunc
(..continued)
extended.") with Notice to Appellate Bar, 100 N.J.L.J. 1208
(1977) ("The Supreme Court has directed the Appellate Division to
relax Rule 2:4-4(a) in favor of allowing an out-of-time appeal
nunc pro tunc on behalf of an indigent criminal defendant in any
case where it satisfactorily appears that the defendant,
personally, within time, requested his trial counsel or the
Public Defender's Office to file an appeal on his behalf.").
Unfortunately, the State did not appreciate the need to relax the
strict time limits on appeal with respect to Simmons's case. If
it had, this habeas proceeding might well have been avoided.
14
 . I use the term "unassailable" because I agree with    the Court
that none of the issues Simmons has raised, except his   hybrid due
process-equal protection claim based on Batson and the   State's
inability to afford him adequate appellate review in a   timely
fashion, have merit. See Majority Op. at 2 n.1.
that is no less a fiction because it is stated in a dead, ancient

language.15   Put simply, direct review was still available in

Simmons's case when Batson was decided only as a result of a

federal court's collateral review of his state court conviction

which otherwise had every appearance of finality.

          In addition, literal application of the Griffith

holding to Simmons's case creates tension between Griffith, which

espoused a bright line rule favoring retroactivity in all cases

that are "pending on direct review or not yet final," and Teague,

where the Supreme Court barred retroactive application of Batson,

and other cases wherein a new constitutional principle of

criminal procedure that clearly breaks with past precedent is

announced, to cases on collateral review.16   Here, but for the

collateral attack, which Simmons successfully pursued in this

federal habeas proceeding, his New Jersey conviction would have

almost certainly been "final" before Batson was decided.




15
 . This particular fictitious form of time travel may merely
reflect the vestigial survival of the common law rule that courts
lack jurisdiction to hear an untimely appeal. It fails, however,
to disguise the fact that Simmons's conviction had every
appearance of finality long before Batson, but is now subject to
review only by virtue of this collateral proceeding.
16
 . The two exceptions espoused in Teague, which require the
retroactive application of a new rule if it (1) "places 'certain
kinds of primary, private individual conduct beyond the power of
the criminal law-making authority to proscribe,'" Teague, 489
U.S. at 311 (quoting Mackey v. United States, 401 U.S. 667, 692
(1972) (Harlan, J., concurring)), and (2) "implicate[s] the
fundamental fairness of the trial" and factual innocence, id. at
312, do not apply here.
          Griffith itself did not directly address the problem of

applying Batson to nunc pro tunc appeals.    As a result, it is

arguably distinguishable on its facts from Simmons's case.

Indeed, Griffith, Allen, and Teague are all factually

distinguishable from Simmons's case.    Nevertheless, I think

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 (1965).    See Mackey v. United States, 401

U.S. 667 (1971) (Harlan, J., concurring); Desist v. United

States, 394 U.S. 244 (1969) (Harlan, J., dissenting).

          The application of new rules to any case pending on

direct review when the rule is announced, including appeals nunc

pro tunc resulting from a collateral attack on a conviction,

seems to me to represent a reasonable compromise between the

unfairness incident to retroactive application of any procedural

rule to trial proceedings concluded before the new rule is

announced and the temptation of legislative free wheeling that

courts confront when they are permitted prospectively to apply

new departures in the law.     Moreover, the application of new law

to appeals nunc pro tunc does not seem to be inconsistent with
the views of Justice Harlan or that of Justice Powell in his

concurrence in Griffith, which states:
          It is to be hoped that the Court then will
          adopt the Harlan view of retroactivity in
          cases seeking relief on habeas petitions.
          Under that view, habeas petitions generally
          should be judged according to the
          constitutional standards existing at the time
          of conviction.



Griffith, 479 U.S. at 328 (Powell, J., concurring).17

          It is perhaps unfortunate that retroactive application

of Batson is required to grant Simmons any effective relief.18

His only viable constitutional claim, which the Court describes

as a hybrid equal protection-due process claim, results from a

combination of the Batson problem, New Jersey's long delay in

granting Simmons his right to appeal, and the consequent loss of

part of the trial transcript material to Batson.   Nevertheless, I

am satisfied with the result reached by the Court.   Accordingly,

I concur with its decision to vacate the district court's order

denying Simmons's petition for a writ of habeas corpus and remand

with instructions conditionally to grant the writ, unless the

State grants Simmons a new trial within a reasonable time, to be

determined by the district court.
17
 . In his reference to Justice Harlan's view on retroactivity,
Justice Powell may be using the term "convicted" interchangeably
with the term "final." See Mackey, 401 U.S. at 682-83 (Harlan,
J. concurring); see also Griffith, 479 U.S. at 329 (Rehnquist,
C.J., dissenting) (new constitutional rules governing criminal
prosecutions should not apply in collateral proceedings
challenging convictions that become final before the rule is
announced).
18
 . It is doubly unfortunate because neither Simmons himself nor
the State had given us any analysis of the retroactivity problem
and, by his reliance on State v. Gilmore, 511 A.2d 1150 (N.J.
1986) (New Jersey's Batson analogue), which plainly does not
apply to Simmons's case, this Court, the state appellate court,
and the district court have all been left without the benefit of
any real advocacy concerning retroactivity as it applies to
appeals nunc pro tunc.
