Raheem Taylor v. State of New Jersey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-2774
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RAHEEM TAYLOR,
Appellant
v.
STATE OF NEW JERSEY;
HONORABLE EDWIN H. STERN, Presiding Judge for Administrator;
PHILIP S. CARCHMAN, Court Administrator;
JOHN M. CHACKO, Clerk for Appellate Division;
YVONNE SMITH SEGARS, Public Defender
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 08-cv-02308)
District Judge: Honorable Robert B. Kugler
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 23, 2010
Before: SMITH, FISHER and GARTH, Circuit Judges.
(Filed: March 24, 2010)
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OPINION
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PER CURIAM
Raheem Taylor, a prisoner in New Jersey proceeding pro se, appeals the District
Court decision dismissing his petition under 28 U.S.C. § 2254 for failure to exhaust his
claims in state court. For the reasons that follow, we will affirm.
I.
In February 2007, Taylor was convicted in Superior Court, Burlington County, of
second-degree robbery. He received a sentence of five years’ imprisonment. Taylor was
represented by a public defender at trial and, after his conviction, requested that his
attorney file a notice of appeal.
Although the notice of appeal was due before the end of April 2007, Taylor’s
attorney failed to comply with his request. Taylor claimed that he made repeated attempts
to contact his public defender, but received no response. In May 2007, Taylor sent
several letters to the Clerk of the Superior Court, Appellate Division, complaining of his
lawyer’s delay and seeking assistance. The Clerk provided Taylor with paperwork to
proceed pro se and to file an appeal nunc pro tunc. Taylor sent the paperwork back, but
the Clerk did not file it, presumably because the court accepted a late notice of appeal
filed at the end of May by the public defender.
Thereafter, Taylor claimed, he continued his attempts to contact the public
defender in furtherance of his appeal, but received no response. In September 2007,
Taylor informed his attorney and the Appellate Division that he wished to proceed pro se.

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He then directed the Public Defender’s Office to order the transcripts he needed for his
appeal. After a series of back-and-forth communications between Taylor, the Appellate
Division Clerk’s Office, and the Public Defender’s Office, his motion was finally granted
on May 28, 2008, pending a hearing.
While the motion to proceed pro se was pending, Taylor filed in the District Court
a petition under 28 U.S.C. § 2254. Taylor argued that the delay in his state court
proceedings – which stemmed from allegedly inadequate performance on the part of his
public defender, unnecessary obstacles imposed by the Appellate Division Clerk’s Office,
and a backlog in the Appellate Division that would result in disposition of his appeal
being further prolonged – amounted to a deprivation of his right to due process. The
District Court dismissed the petition without prejudice because Taylor had not first
exhausted available state court remedies. Taylor filed a notice of appeal, and we granted
a certificate of appealability on the question whether the District Court should have
excused exhaustion as a result of inordinate delay.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a District Court’s denial of a § 2254 petition when it did not conduct an evidentiary
hearing. See Thomas v. Carroll, 581 F.3d 118, 123-24 (3d Cir. 2009). Generally, a
District Court may not entertain a § 2254 petition unless the applicant has exhausted all
available state remedies. See § 2254(b)(1)(A). However, exhaustion may be excused if

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state remedies are absent or too ineffective to protect the applicant’s rights. See
§ 2254(b)(1)(B). Thus, although the exhaustion requirement exists as a matter of comity,
see Rose v. Lundy, 455 U.S. 509, 518 (1982), that principle “weighs less heavily [when]
the state has had an ample opportunity to pass upon the matter and has failed to
sufficiently explain its . . . delay,” and exhaustion may be excused. Hankins v. Fulcomer,
941 F.2d 246, 250 (3d Cir. 1991); see also Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d
Cir. 1986).
Whether a delay is sufficiently “inordinate” to excuse exhaustion depends on the
conduct of the appellant, interference by the state in the timely disposition of the matter,
the progress made in state court, and the length of the delay. See Lee v. Stickman, 357
F.3d 338, 341-44 (3d Cir. 2004). It appears that Taylor diligently attempted to have his
public defender pursue his appeal and, when that approach proved unavailing, took it
upon himself to do so. Despite his efforts, however, Taylor encountered some notable
delays: the Clerk of the Appellate Division apparently provided conflicting information
about what Taylor needed to do to proceed with his appeal; the public defender ordered
incorrect transcripts and, when informed about the mistake, failed to promptly order the
correct transcripts; and Taylor’s motion to proceed pro se, followed by a waiver of
counsel hearing, took nearly six months to adjudicate. In total, about fifteen months
elapsed from the time Taylor was sentenced (at which time he presumably decided to
appeal) until he filed his § 2254 petition in the District Court.

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Specifically, the Appellate Division instructed Taylor to file with his brief a1
certification averring the content of any missing transcript, its relevance, and the impact
of its non-production.
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We conclude, however, that the fifteen-month delay Taylor endured, although
unfortunate, was not so egregious as to require excusing exhaustion. Much of the delay
in this case was the result of apparent miscommunication and, arguably, a lack of diligent
effort on the part of Taylor’s former attorneys to provide him with the transcripts he
requested. On the other hand, Taylor has also prolonged the duration of his appeal by
requesting several extensions of the briefing schedule – which was first issued in 2008 –
so he could obtain these transcripts. Moreover, it appears that the Appellate Division has
made efforts to further Taylor’s case – in particular, making efforts to ensure that Taylor
receives the transcripts he claims are necessary to prepare his brief. We also take judicial
notice that, as recently as December 2009, the Appellate Division granted yet another
motion by Taylor to extend his time to file a brief and crafted a solution to Taylor’s
allegation that portions of his transcript remain missing. In short, though he has certainly1
endured a delay, Taylor has not experienced the type of delay that warrants excusing the
§ 2254 exhaustion requirement. See, e.g., Lee, 357 F.3d at 341-44 (excusing exhaustion
after 8-year delay caused by administrative mistakes); Moore v. Deputy Comm’r of SCI-
Huntingdon, 946 F.2d 236, 242-43 (3d Cir. 1991) (excusing exhaustion after state post-
conviction petition lingered in state court for 40 months without any progress); Wojtczak,
800 F.2d at 354 (excusing exhaustion after 33-month delay, where multiple court-

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We note that the motion to expedite was filed after the Clerk advised Taylor that2
this matter would be submitted pursuant to Rule 34.1(a) on March 23, 2010. The motion
and the Clerk’s letter apparently crossed in the mail.
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appointed attorneys failed to prosecute the appeal, and the state court failed to conduct
any hearing).
We are confident that the Appellate Division will continue its efforts to resolve
Taylor’s appeal in a timely manner. Accordingly, we will affirm. Taylor’s motion for
expedited disposition of his appeal is denied.2

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