Lawrence L. Simmons v. Howard L. Beyer and the Attorney General of the State of New Jersey, W. Cary Edwards

*1172HUTCHINSON, Circuit Judge,

Concurring.

In this difficult case, I believe the Court correctly applies Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (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, 106 S.Ct. 2878, 92 L.Ed.2d 199 (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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (same) with Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (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.1 This particular difficulty implies that Batson’s retroactive application to Simmons’s ease 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, 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, at 1170-71. 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.2 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 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 *1173760, 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, 97 S.Ct. 2044, 2048-49, 52 L.Ed.2d 752 (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, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (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.3 The majority relies bn the loss of this part of the trial transcript in holding that this ease 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 1168. Thus, the majority states: “we cannot evaluate the last two Clemons factors because transcripts of the voir dire are not available....” Majority Op. at 1168; see United States v. Clemons, 843 F.2d 741 (3d Cir.), cert. denied, 488 U.S. 835, 109 S.Ct. 97, 102 L.Ed.2d 73 (1988).4

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, 107 S.Ct. at 716. 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, 107 S.Ct. at 712 n. 6 (emphasis added) (citations omitted). Accord Allen, 478 U.S. at 258 n. 1, 106 S.Ct. 2880 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 *1174Batson 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.

It can at least be argued, however, that literal application of Griffith’s test 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.5 See Griffith, 479 U.S. at 327, 107 S.Ct. at 715. 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.6 And, with the consequent likelihood that the appellate process would have been completed ■ long before Batson, Simmons’s conviction would have become unassailable.7

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, 107 S.Ct. at 715-16. 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 that is no less a fiction because it is stated in a dead, ancient language.8 Put simply, direct review was still available in Simmons’s case when Batson was decided only as a result of a federal *1175court’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.9 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.

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 retroac-tivity adopted in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). See Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting).

The application of new rules to any case pending oh 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, 107 S.Ct. at 716 (Powell, J., concurring).10

It is perhaps unfortunate that retroactive application of Batson is required to grant Simmons any effective relief.11 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 tran*1176script 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.

. 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 1168. Simmons, indeed, concedes as much. See Brief for Appellant Brief at 26.

. 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, 1 favor simplifying the prejudice issue by avoiding reliance solely on the delay Simmons has suffered. See Majority Op. at 1170 ("If Simmons had received an adequate and effective, though excessively delayed appeal, then the issue of prejudice would become more difficult.”).

. 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 1160 n. 1.

. Interestingly, the majority then concludes that the reconstructed record is sufficient to show a prima facie Batson claim. See Majority Op. at 1168. In so concluding, I believe the majority goes beyond Simmons’s argument. As I read his brief, he 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.

. 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, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

. 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 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.

. 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 1160 n. 1.

. 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.

. 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, 109 S.Ct. at 1075-76 (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1165, 28 L.Ed.2d 404 (1972) (Harlan, J., concurring)), and (2) “implicate[s] the fundamental fairness of the trial” and factual innocence, id. at 312, 109 S.Ct. at 1076, do not apply here.

. 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, 91 S.Ct. at 1165 (Harlan, J. concurring); see also Griffith, 479 U.S. at 329, 107 S.Ct. at 716-17 (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).

.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, 103 N.J. 508, 511 A.2d 1150 (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 ret-roactivity as it applies to appeals nunc pro tunc.