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IN RE: Robert Lee BENNETT (1998)

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United States Court of Appeals,Eleventh Circuit.

IN RE: Robert Lee BENNETT, Jr., Petitioner.

No. 97-3461.

Decided: March 10, 1998

Before HATCHETT, Chief Judge, and BLACK and CARNES, Circuit Judges. Robert W. Pope, Pope & Henninger, P.A., St. Petersburg, FL, for Petitioner. Robert A. Butterworth, Atty. Gen., Michele Jana Taylor, Asst. Atty. Gen., Dept. of Legal Affairs, Tampa, FL, for United States.

Petitioner Robert Lee Bennett, Jr. is a Florida prisoner serving a seventeen-year sentence imposed in 1992 after he pleaded guilty to and was convicted of attempted murder.   Bennett collaterally attacked his conviction in a Rule 3.850 motion filed in state court.   After that motion was denied, he filed in the United States District Court for the Middle District of Florida a 28 U.S.C. § 2254 petition attacking the validity of his guilty plea and conviction.   That habeas petition was filed on January 26, 1996.   Although the parties disagree about whether the petition has any merit and whether an evidentiary hearing is necessary, they appear to agree that the issues the petition raises are relatively simple.

On April 23, 1996, the secretary of the Florida Department of Corrections (hereafter “the State”), filed a response to Bennett's petition.   Bennett filed a reply which was dated May 23, 1996.   Since that time, the habeas petition has languished in the district court without judicial action.

By letter dated June 26, 1997, more than a year after the last pleading had been filed, counsel for Bennett wrote the magistrate judge to whom the case had been assigned.   After describing the length of the delay, the letter stated:

The purpose of my letter is to inquire concerning a hearing on the matter.   If the Court waits much longer, the benefits of a favorable ruling will be lost.

Mr. Bennett has a pending Georgia Writ, and without a decision on the pending federal Writ, any favorable ruling by Georgia would be useless.

My client, a Florida inmate, has demanded some action which I am sure the Court can understand.   He sits in prison wondering why it takes a year and a half to get an answer on an extraordinary writ.

Certainly he wishes to provide the Court with ample opportunity to favorably consider Writ, but he needs an answer in July, or he has asked to file a mandamus.

Mr. James Jenkins, an attorney in Atlanta, is representing Mr. Bennett in the Georgia matter, and he has joined me in signing this letter to emphasize the need for a decision in this matter before your Court.

The magistrate judge treated that letter as a motion for an expedited ruling, which he denied on August 19, 1997.   In his order refusing to expedite the case, the magistrate judge stated that habeas petitions were decided in the order in which they were filed, and:

Due to limited resources and the large number of cases filed each year, the Court is not always able to rule as expediently as might be wished.   In fairness to each Petitioner, the Court must carefully consider the merits of each petition that is filed.   Petitioner is assured that the Court will carefully review this matter and enter an order in due course.

It has been more than six months since then and “due course” has not come to pass.

On November 18, 1997, Bennett filed in this Court a petition for a writ of mandamus setting out the proceedings in the case and requesting that we enter an order directing the district court or the magistrate judge to act on his habeas corpus petition.   We ordered a response from the State and invited one from the district court judge to whom the case was assigned.   See Fed. R.App. P. 21(b).

In its January 7, 1998 response to the petition for writ of mandamus, the State argued that there had not been an undue or unreasonable delay in the habeas corpus proceeding and that Bennett had failed to show that expedited action is necessary.   The district court also filed a response on January 5, 1998, the pertinent part of which stated:

Generally, the district court rules on habeas corpus petitions in the order in which they were filed.   As of December 3, 1997, this court had 152 pending habeas corpus petitions that were filed prior to Petitioner Bennett's petition.1 The district court carefully considers the claims in each petition filed, and will carefully consider Petitioner Bennett's petition when the petition comes on for final review in its order of filing.

1.  The total of 152 pending petitions includes petitions filed in the Ft. Myers and Tampa Divisions of the United States District Court for the Middle District of Florida.

 We are aware of and sympathetic to the problems that this and other district courts face because of their heavy case loads.   No case should be unduly delayed, but it is especially important that habeas cases be decided in a reasonably prompt fashion.   We realize, of course, that the vast majority of habeas petitions are ultimately denied or dismissed.   However, relief is due to be granted in some habeas cases, and where relief is due it is imperative that it come sooner instead of later.   The only way to determine whether a habeas petitioner is entitled to relief is to decide the case.   It follows that habeas petitioners, virtually all of whom are incarcerated, are entitled to have their petitions decided in a reasonable period of time.   It has been two years since Bennett's habeas petition was filed-twenty-one months since the last pleading-and there is no assurance of judicial action on the petition in the near future.   Indeed, we have been assured that it will not be decided soon.   According to the district court's response to the mandamus petition, as of December 3, 1997, there were 152 habeas petitions ahead of this one.

The closest precedent we have found is Johnson v. Rogers, 917 F.2d 1283 (10th Cir.1990), a mandamus proceeding involving a fourteen-month delay in deciding a § 2241 habeas proceeding.   The government and the district court, in responding to the mandamus petition in that case, stated that a backlog of 439 prisoner petitions in the district precluded more expeditious treatment of such cases.  Id. at 1284.   The Tenth Circuit acknowledged “the tension between the court's heavy case load and the need to hear and determine all cases in a timely manner,” and “sympathize[d] with the district court's efforts to keep abreast of its burgeoning case load.”  Id. at 1284-85.   Nonetheless, the Tenth Circuit reasoned that if such a long delay absent good reason were routinely permissible, the function of the writ of habeas corpus would be substantially undermined.   See id. at 1284.   The court held that the high volume of such cases in the district court did not justify the lengthy delay in deciding that petition.   See id. at 1285.

Other federal courts of appeal are in accord with the reasoning and holding of the Tenth Circuit's Johnson decision.   See Jones v. Shell, 572 F.2d 1278, 1280 (8th Cir.1978) (holding that a fourteen-month delay in ruling on a habeas petition following a remand was unreasonable, and stating that “[t]he writ of habeas corpus, challenging illegality of detention, is reduced to a sham if the trial courts do not act within a reasonable time.”);   McClellan v. Young, 421 F.2d 690, 691 (6th Cir.1970) (granting writ of mandamus where a decision of a habeas petition had been inordinately delayed because of a crowded docket).   The teaching of these cases is that a backlog of prisoner petitions, or a heavy case load in general, does not relieve district courts of their duty to decide habeas petitions in a reasonably prompt fashion.

We do agree with the caveat expressed by the Tenth Circuit in its Johnson decision:

We do not mean to imply that in all habeas corpus cases a fourteen-month delay is impermissible.   In many instances the habeas petitioner himself may be responsible for delays;  in some, particularly those arising under 28 U.S.C. § 2254, there may be delays occasioned in obtaining necessary records of earlier proceedings.   Each situation must be considered on its own facts.   We hold only that the fourteen-month delay in this case for no reason other than docket congestion is impermissible.   At this point, justice delayed is justice denied.

917 F.2d at 1285.   Likewise, we hold only that the two-year delay, thus far, in this relatively simple case for no reason other than docket congestion is impermissible.

 As to the permissibility of the writ of mandamus as a remedy in this situation, the Supreme Court has repeatedly held that mandamus will lie in a proper case to direct a court to decide a pending case.   See Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662, 98 S.Ct. 2552, 2557, 57 L.Ed.2d 504 (1978) (plurality opinion);  Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 352, 96 S.Ct. 584, 593, 46 L.Ed.2d 542 (1976);  Insurance Company v. Comstock, 83 U.S. (16 Wall.) 258, 270, 21 L.Ed. 493 (1872);  see also Johnson v. Rogers, 917 F.2d at 1285;  State Farm Mut. Auto. Ins. Co. v. Scholes, 601 F.2d 1151, 1154 (10th Cir.1979).   This case is a proper one for mandamus relief.

Accordingly, we order that the respondent court decide this habeas petition within sixty days of the date of this order if no evidentiary hearing is necessary, or that it hear and decide this case within ninety days of the date of this order if an evidentiary hearing is necessary.


CARNES, Circuit Judge:

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