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Case Name Harris v. Champion PD-OK-0002
Docket / Court 4:90-cv-00448 ( N.D. Okla. )
Additional Docket(s) 4:90-cv-00769  [ 90-769 ]  Northern District of OK (U.S.)
4:91-cv-00989  [ 91-989 ]  Northern District of OK (U.S.)
4:92-cv-0068  [ 92-68 ]  Northern District of OK (U.S.)
4:92-cv-00526  [ 92-526 ]  Northern District of OK (U.S.)
4:92-cv-00755  [ 92-755 ]  Northern District of OK (U.S.)
4:92-cv-00371  [ 92-371 ]  Northern District of OK (U.S.)
4:92-cv-00444  [ 92-444 ]  Northern District of OK (U.S.)
4:92-cv-00512  [ 92-512 ]  Northern District of OK (U.S.)
4:88-cv-00631  [ 88-631 ]  Northern District of OK (U.S.)
State/Territory Oklahoma
Case Type(s) Indigent Defense
Case Summary
This action arose from a habeas petition filed on May 22, 1990 in the U.S. District Court for the Northern District of Oklahoma.

After he was convicted of forcible sodomy, assault and battery with a dangerous weapon, and sentenced to 15 years in state prison, the petitioner invoked his ... read more >
This action arose from a habeas petition filed on May 22, 1990 in the U.S. District Court for the Northern District of Oklahoma.

After he was convicted of forcible sodomy, assault and battery with a dangerous weapon, and sentenced to 15 years in state prison, the petitioner invoked his right to appeal and requested counsel on September 29, 1988. Due to understaffing/ underfunding, the Oklahoma Appellate Public Defender did not immediately file that appeal. Instead, on May 11, 1989, the public defender's office filed for an application for late appeal. On May 18, 1989, the request was granted on the grounds that “through no fault of his own” the petitioner was denied a direct appeal. On April 16, 1990, the petitioner received a letter from the Oklahoma Appellate Public Defender informing him that a brief for his case would not be filed for another three years. While his case was still pending in state court, the petitioner filed this habeas petition, which sought a remedy for the Oklahoma appellate public defender's delay in filing a brief for his criminal appeal. The petitioner initially filled this case pro se. He claimed that the delays he encountered while trying to get the public defender to file his brief on appeal were a violation of due process, equal protection, and his right to counsel. Harris v. Champion, 938 F.2d 1062, 1064-65 (10th Cir. 1991).

A Magistrate Judge recommended that the state's motion to dismiss be granted on the grounds that:
Respondents move to dismiss the [habeas petition,] alleging Harris has not yet exhausted his state remedies. Specifically, Respondents point out that Petitioner is currently pursuing a direct appeal....Where a state prisoner has pending an appeal in the state court ..., comity requires a federal court abstain from using its federal habeas corpus jurisdiction.
938 F.2d 1062, 1064 (10th Cir. 1991). The district court adopted the recommendation, dismissing the case without prejudice; the petitioner appealed.

On June 17, 1991, the United States Court of Appeals for the Tenth Circuit reversed and remanded the lower court’s decision to dismiss. On appeal, the respondents argued that the petitioner failed to meet the exhaustion requirement. The Court rejected the respondents’ argument, concluding that the petitioner did not need to exhaust state remedies prior to petitioning federal habeas relief because the failure to exhaust was directly linked to the petitioner’s constitutional claims. 938 F.2d 1062, 1067-69 (10th Cir. 1991). The Court found that the record provided by the petitioners showed substantial delay, however, it did not fault the Appellate Public Defenders Office for creating the delay. 938 F.2d 1062, 1065-66 (10th Cir. 1991); Hill v. Reynolds 942 F.2d 1494, 1496 (10th Cir. 1991).

In the same opinion, The Court consolidated this case with two others (Bunton v. Cowley, No. 90-6316, 936 F.2d 582 (table) (10th Cir. 1991), and Hacker v. Saffle, No. 91-6042, 936 F.2d 583 (table) (10th Cir. 1991)) and remanded them all, directing that counsel be appointed and that they be considered, together with any other pending habeas actions raising a similar claim, in a full hearing, conducted:
as expeditiously as possible, into possible systemic delays of the Oklahoma Appellate Public Defender's Office in preparing and filing appellate briefs for their indigent clients. The hearing should address the time that has been required and is expected to be required in the future to file appellate briefs and the reasons for the delays.
938 F.2d 1062, 1071 (10th Cir. 1991).The Court instructed that "All interested parties should be encouraged to work together to suggest possible solutions to the court to correct any constitutional deficiencies that may be found," and directed the district court to "enter orders specifically addressing and remedying any constitutional violations that may be found." 938 F.2d 1062, 1071 (10th Cir. 1991).

The opinion was later amended on July 1, 1991, after the Oklahoma Attorney General and the state warden filed a petition for rehearing and suggestion for rehearing in banc; the order was modified to consolidate only similar cases that arose in the Northern District. 938 F.2d 1062, 1073 (1991). In the end, there were 10 consolidated cases (4:92−cv−00068; 4:92−cv−00526; 4:90−cv−00769; 4:92−cv−00755; 4:91−cv−00989; 4:88−cv−00631; 4:92−cv−00371; 4:92−cv−00444; 4:92−cv−00512).

On remand, the petitioners submitted evidence revealing that the Public Defender office only filed three percent of the briefs within six months of the date they were due, fifty-six percent of the briefs were at minimum three years late, and thirty-one percent of the briefs had yet to be filled. The evidence also showed that almost all of the non-capital felony appeals filed in 1990 and 1991 that required Public Defender briefs had not been filed by the beginning of 1992. The average delay for an indigent appellant was two to four years. Harris v. Champion, 15 F.3d 1538, 1550 (10th Cir. 1994).

The petitioners filed a supplemental and amended complaint that named the State of Oklahoma, the Oklahoma Court of Criminal Appeals and its individual members, the Public Defender and its board members and administrative officers as well as all previously mentioned defendants, in July 1992. 15 F.3d 1538, 1551 (10th Cir. 1994).The petitioner asserted habeas claims and claims for damages under 42 U.S.C. §1983. In addition, the petitioners filed a motion for a preliminary injunction, seeking to prevent the Oklahoma Court of Criminal Appeals from granting further time extensions for the Public Defender, and a motion for partial summary judgment for the release of petitioners who had been or were expected to be in custody for 11.7 months or more without receiving a final judgment of their appeal. Id.

On October 15, 1992, the district court held a hearing on the pending motions. The court determined that the delays in the Oklahoma criminal appellate system reached the level of constitutional violations, and rejected the Attorney General’s argument that the state legislature was the only authority that could provide a remedy for those constitutional violations. The court provided its own possible remedy:
to release any petitioner whose appeal had not been fully briefed and submitted to the Oklahoma Court of Criminal Appeals for decision within fourteen months of the date of conviction. Each petitioner would be released on his or her personal recognizance until the Oklahoma Court of Criminal Appeals issued its opinion; the State could apply for special terms and conditions of release in individual cases.
Harris v. Champion, 15 F.3d 1538, 1551 (10th Cir. 1994). Both parties were given until October 23 to comment on the court’s proposal and the court would issue a ruling thereafter.

However, no ruling was made. In January 1993, some of the petitioners began filing mandamus petitions with the Tenth Circuit Court of Appeals, requesting a ruling by the district court. On February 18, 1993, the Chief Judge of the Tenth Circuit Court of Appeals entered an order designating a three-judge district court panel to determine the common issues of law and fact in all the habeas cases claiming delay in adjudication of direct criminal appeals within Oklahoma. Harris v. Champion, 15 F.3d 1538, 1552 (10th Cir. 1994).

On March 26, 1993, an order was entered in the mandamus proceedings by the Court of Appeals directing the district court panel to show cause why it should not be ordered
“to enter findings of fact and conclusions of law in the Harris cases insofar as those cases seek habeas relief because of delays by the [Public Defender] in preparing and filing briefs in petitioners' direct criminal appeals” no later than May 10, 1993; and “to enter findings of fact and conclusions of law in the Harris cases insofar as those cases seek habeas relief because of delays by the [Attorney General] or the [Oklahoma Court of Criminal Appeals]” no later than September 10, 1993.
Harris v. United States Dist. Ct., Nos. 93–527, at 7–8 (10th Cir. Mar. 26, 1993) (unpublished order). The following day, the Oklahoma Court of Appeals filed a motion to dismiss and summary judgment in favor of the defendants on grounds that the petitioners failed to exhaust all state remedies.

On April 1, 1993, the petitioners filed a motion to disqualify two members of the district court panel. Both motions were orally denied during a status conference on April 6, 1993, with the exception that Judge Thomas R. Brett, agreed to recuse himself on any claims for damages because his uncle was a member of the Oklahoma Court of Criminal Appeals until his death three months before. 15 F.3d 1538, 1552 (10th Cir. 1994).

On April 22, 1993, after the district court indicated no objection to meeting the deadlines set forth in the show cause order, the Court of Appeals entered a mandamus order directing the district court to enter its findings and conclusions. The Court also requested the district court to consider the issue of cumulative delay in a separate ruling due September 10, 1993. 15 F.3d 1538, 1552 (10th Cir. 1994).

On May 6, 1993, the district court submitted its findings of fact and conclusions of law and certified its ruling as final for purposes of appeal pursuant to the Federal Rules of Civil Procedure, Rule 54(b).15 F.3d 1538, 1552 (10th Cir. 1994). The district court concluded that it was constitutional for an appeal process to take up to sixteen months beginning with the filling of notice of an appeal through the filing of appellate briefs. Id. The delay of filing appellate briefs was systemic, however, the court determined that in order to decide whether the delay gave rise to independent due process violations would require for the court to consider each habeas petitioner’s case individually. Further, the court held that “any habeas petitioner whose direct criminal appeal had been either affirmed or reversed with prejudice to retrial was not entitled to habeas relief as a result of delay in the appellate process.” 15 F.3d 1538, 1553 (10th Cir. 1994). Last, the court held that habeas petitioners would have to exhaust the issue of delay in the Oklahoma Court of Criminal Appeals before filing in federal court in future cases.

Petitioners filed their notice of appeal from the district court’s order on May 28, 1993. In August 1993, both parties submitted evidence to the court concerning delays by the Attorney General, the Oklahoma Court of Criminal Appeals, and cumulative delays in the system. The court was also given notice that two pieces of legislation going into effect on July 1, 1993, would help speed up the appellate process. 15 F.3d 1538, 1553 (10th Cir. 1994).The first act created an Emergency Appellate Division of the Oklahoma Court of Criminal Appeals that could be activated if more than 100 non-capital felony appeals were at issue and pending in the clerk’s office. The second act cut the amount of time allowed for editing appeals in misdemeanor and felony cases in half. Instead of 180 days, the appeal must be submitted within 90 days from the date that the judgment was pronounced. Id.

On September 8, 1993, the district court entered its findings of fact and conclusions of law for the delay by the Attorney General and the Oklahoma Court of Criminal Appeals, in addition to the issue of cumulative delay throughout the system. Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994)(Harris II).The court determined there was no evidence of systemic delay in filing briefs by the Attorney General nor by the Oklahoma Court of Criminal Appeals. Further, the court held that, “a delay in adjudicating an appeal of more than two years from the notice of appeal or order permitting an appeal out of time to the issuance of opinion would be presumed to be unconstitutional 'absent a showing of good and sufficient cause or special circumstances.'” Id.. The court also again determined that a habeas petitioner needed to raise the issue of unconstitutional delay in the Oklahoma court of Criminal Appeals and permit it to take appropriate action prior to asserting the issue in federal court. Id.

On September 28, 1993, the petitioners appealed from the district court’s September 8th order. Both appeals were consolidated by the Tenth Circuit’s order on October 14, 1993. 15 F.3d 1538, 1554 (10th Cir. 1994). In the appeal, the petitioners asserted that the district court’s findings regarding due process, equal protection, and ineffective assistance of counsel were incomplete and erroneous. Id. The petitioners also argued that Judge Brett should have recused himself on the habeas claims in accordance with 28 U.S.C. §455. Id. Last, the petitioners raised an issue with the district court's failure to award interim attorney fees against the State for work performed by counsel on behalf of petitioners. Id.

Senior Judge James O. Ellison of the Federal District Court of Northern Oklahoma finally granted the Oklahoma Court of Appeals request for summary judgment and dismissal for petitioner’s failure to exhaust state remedies on December 27, 1993. The order disposed of all the petitioner’s claims against the Oklahoma Court defendants and the OIDS defendants. Harris v. Champion, 51 F. 3d 901,905 (10th Cir. 1995). Petitioners appealed on January 12, 1994.

On January 26, 1994, The Tenth Circuit responded to the petitioners' appeal and held: (1) there was a rebuttable presumption that a state’s process need not be exhausted if the direct criminal appeal was pending for more than two years without final action by the state; (2) mismanagement of resources and underfunding were not constitutionally sufficient reasons to justify excessive delay; (3) usually, the petitioner must make some particularized showing of prejudice from delay to establish due process violation; (4) excessive delay in filing appellate brief may violate the petitioner’s right to effective counsel; and (5) refusal by Judge Brett to recuse himself from the district court panel was harmless error. 15. F.3d 1538,1538.

The action was then remanded to the district court to conduct the necessary inquiry in order to create the proper record for review. 15 F.3d 1538, 1565. The Court did not address the petitioners’ equal protection claims. 15 F.3d 1538, 1568. The Court determined that no habeas relief could be provided for the petitioners’ ineffective assistance of counsel claim because an appellate brief was filed on behalf of all but one petitioner in the Oklahoma Court of Criminal Appeals. 15 F.3d 1538, 1570. The Court did not consider the claims against the Oklahoma Court defendants and the OIDS defendants, only the habeas claims against the defendant wardens. Further, the Court directed that Judge Brett recuse himself from all further proceedings related to the issues on remand, including any future individual hearings. 15 F. 3d. 1572.Finally, the Court denied the petitioners’ request for interim attorney fees. 15 F. 3d. 1573.

On March 29, 1994, on remand, the new three-judge district court panel granted the defendants’ motion to dismiss for failure to exhaust, denied the petitioner’s motion for immediate release, and dismissed the petitioner’s substantive issues without prejudice. Harris v. Champion, 48 F.3d 1127, 1130 (10th Cir. 1995). The district court determined that the petitioner did not present to the state appellate court the non-delay claims that he sought to pursue in federal court, thus, the delay in adjudicating the petitioners’ direct criminal appeal was not responsible for the petitioner’s failure to exhaust those claims. Id. The petitioner appealed.

On September 27, 1994, the Tenth Circuit concluded that the appellant’s habeas petition presented both exhausted and unexhausted claims, therefore, the entire petitioners should have been dismissed rather than dismissing only the unexhausted claims.48 F.3d 1127, 1130 (10th Cir. 1995). Once again, the Tenth Circuit vacated the ruling and remanded the action to the district court, directing the district court to determine whether the appellant's previously unexhausted claims had since been exhausted. If the claims were not exhausted, the district court was instructed to dismiss appellant’s appellate delay claim and permit the appellant to refile his habeas petition only his exhausted claim. Id.

Both parties petitioned for rehearing and the appellants additionally petitioned for rehearing in banc. The petitioner-appellant argued that the Tenth Circuit Court’s opinion in Harris v. Champion, 938 F.2d 1062 (10th Cir. 1991) permitted him to maintain unexhausted claims in federal court. Further, the September 27th decision reversed the progress made since the Tenth Circuit’s first decision in 1991. The petitioner-appellees argued that the court erred in requiring the appellant to exhaust all other habeas claims, further exacerbating the delay that he already suffered.

On February 21, 1995, the Tenth Circuit denied both petitions for rehearing on the merits and the rehearing in banc. The Court permitted the petitioner to pursue the appellate delay claim without waiting to exhaust his other claims by submitting another habeas petition only raising the one claim. Harris v. Champion, 48 F .3d 1127, 1134 (10th Cir. 1995).

On remand, the parties settled the attorney's fees issue.

On March 30, 1995, the Tenth Circuit Court of Appeals addressed the subsequent issues against the OIDS defendants and the Oklahoma Court defendants. The Court held: (1) that the Oklahoma Court of Criminal Appeals had Eleventh Amendment immunity; (2) the individual judges involved in the lawsuit also had Eleventh Amendment immunity; (3) claim for injunctive relief was moot as to pending cases; (4) defendants in state criminal cases who claimed that their Sixth and Fourteenth Amendment rights were violated by excessive delays in processing their appeals lacked standing to seek injunction to compel judges to refrain from granting extensions of time to OIDS to file appeals on the defendant’s behalf; (5) members of the board of the indigent defense system had qualified immunity; (6) administrators also had qualified immunity; and (7) claim for injunctive relief was moot. Harris v. Champion, 51 F. 3d 901, 901 (10th Cir. 1995).

There was some subsequent litigation. On October 24, 1996, Senior Judge James O. Ellison denied the requested relief from the petitioner’s separate pro se litigation that was permitted through the Tenth Circuit’s February 21, 1995 opinion. There is nothing else substantive in the docket sheet, so it seems the case is now closed.

Kimberly Goshey - 05/31/2019

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Issues and Causes of Action
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Constitutional Clause
Assistance of counsel (6th Amendment)
Due Process
Equal Protection
Crowding / caseload
Access to lawyers or judicial system
Race, unspecified
Special Case Type
Causes of Action Habeas Corpus, 28 U.S.C. §§ 2241-2253; 2254; 2255
Defendant(s) Oklahoma Court of Appeals
Plaintiff Description Oklahoma
Class action status sought Yes
Class action status outcome Granted
Filed Pro Se Yes
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Habeas relief
Attorneys fees
Source of Relief Settlement
Form of Settlement Court Approved Settlement or Consent Decree
Filed 05/22/1990
Case Closing Year 1997
Case Ongoing No
Additional Resources
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  See this case at (May provide additional documents and, for active cases, real-time alerts)
  Securing Reasonable Caseloads: Ethics and Law in Public Defense
Date: 2011
By: Norman Lefstein (Indiana University--Indianapolis Faculty)
Citation: (ABA 2011)
[ Detail ] [ External Link ]

  Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel.
Date: Apr. 14, 2009
By: National Right to Counsel Committee (The Constitution Project)
Citation: National Right to Counsel Committee, Justice Denied: America's Continuing Neglect of Our Constitutional Right to Counsel (2009)
[ Detail ] [ PDF ] [ External Link ]

  The Third Generation of Indigent Defense Litigation
New York University Review of Law and Social Change
Date: 2009
By: Cara Drinan (Columbus School of Law, Catholic University Faculty)
Citation: 33 N.Y.U. Rev. L. & Soc. Change 427 (2009)
[ Detail ] [ External Link ]

  Indigent Defense Reform: The Role of Systemic Litigation in Operationalizing the Gideon Right to Counsel
Date: May 7, 2007
By: Vidhya K. Reddy (Washington University in St. Louis Law Student)
[ Detail ] [ PDF ]

Court Docket(s)
N.D. Okla.
PD-OK-0002-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
U.S. Court of Appeals
Order Granting Rehearing and Amending Opinion (938 F.2d 1062)
PD-OK-0002-0002.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
U.S. Court of Appeals
Opinion (15 F.3d 1538)
PD-OK-0002-0001.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
U.S. Court of Appeals
Opinion (48 F.3d 1126)
PD-OK-0002-0004.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
U.S. Court of Appeals
Order (48 F.3d 1127)
PD-OK-0002-0003.pdf | WESTLAW| LEXIS | Detail
Source: Westlaw
show all people docs
Judges Ebel, David M. (Tenth Circuit) show/hide docs
PD-OK-0002-0002 | PD-OK-0002-0003 | PD-OK-0002-0004
Ellison, James O. (N.D. Okla.) show/hide docs
Plaintiff's Lawyers Booth, David E (Oklahoma) show/hide docs
Hilfiger, Roger Henry (Oklahoma) show/hide docs
Neville, Jack LeDrew Jr (Oklahoma) show/hide docs
Seymour, R. Thomas (Oklahoma) show/hide docs
Defendant's Lawyers Davis, Lisa Tipping (Oklahoma) show/hide docs
Imel, John M (Oklahoma) show/hide docs
Miller, Jennifer Barnes (Oklahoma) show/hide docs
Rinehart, Sandra D. (Oklahoma) show/hide docs
Rooney, John Edward Jr (Oklahoma) show/hide docs
Slayton, Diane L (Oklahoma) show/hide docs
Watts, Beverly Quarles (Oklahoma) show/hide docs
Wettstein, Gail L (Oklahoma) show/hide docs
Wycoff, Mary Sue (Oklahoma) show/hide docs

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