The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Presently before the court is petitioner's motion to excuse exhaustion. (Dkt. No. 144.) The court heard this matter on its law and motion calendar on March 18, 2010. Assistant Federal Defender Allison Claire appeared for petitioner. Deputy Attorney General Daniel Bernstein appeared for respondent. After considering the parties' briefs and arguments, the court denies petitioner's motion for the reasons that follow.
Petitioner argues the California Supreme Court's to date four-year delay in deciding petitioner's third state habeas corpus petition is excessive and unjustified.*fn1 Petitioner adds that the California Supreme Court's record of delay in addressing capital cases provides no assurance that his petition will be resolved any time soon. Petitioner argued in his moving papers that he suffers prejudice from the delay because: (1) indefinite confinement on death row exposes petitioner to the "the severe and dehumanizing conditions of confinement under sentence of death;" (2) petitioner's medical conditions exacerbate the stress of having his claims unresolved; and (3) the passage of time diminishes petitioner's ability to prosecute his claims due to difficulty in refreshing witnesses' memories and developing exculpatory evidence. (Dkt. Nos. 144, pp. 10-12; 147, pp. 5-6.) During argument, however, petitioner's counsel asserted that because the court need not find the delay amounts to a due process violation to excuse exhaustion, it need not consider whether the delay has caused petitioner prejudice.
Petitioner is correct that the court may excuse exhaustion without finding the state court's process so ineffective that it amounts to a due process violation. Both parties rely in their papers on Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990), for the due process analysis. However, the Court of Appeals in Coe analyzed the petitioner's claim in his petition that the state court's delay violated his due process rights. When the Court considered the petitioner's argument that exhaustion should be excused, it noted the unusual situation in that case: " [I]t would be meaningless to insist that petitioner exhaust his state remedies when the essence of his due process claim arises directly out of his inability to do so." Coe, 922 F.2d at 530 (internal citations and quotation omitted). The Court in Coe held: "In deciding this issue for the first time in this circuit, we now hold that since excessive delay in obtaining an appeal may constitute a due process violation, a prisoner need not fully exhaust his state remedies if the root of his complaint is his inability to do so." Id. at 530-31. Thus, the holding in Coe is limited to the unique situation in that case. Further, the Court held that exhaustion was excused when state court delay "may" violate due process. Nothing in Coe requires this court to find the state proceedings in the present case violate petitioner's due process rights in order to excuse exhaustion.*fn2 Cf., Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) ("Inordinate, unjustifiable delay in a state-court collateral proceeding excuses the requirement of petitioners to exhaust their state-court remedies before seeking federal habeas corpus relief.").
The statutory basis for excusing exhaustion is 28 U.S.C. § 2254(b)(1), which provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that --
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(I) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
Case law existing prior to the 1996 adoption of this statutory standard examined the issue in a similar way. In Duckworth v. Serrano, 454 U.S. 1, 3 (1981), the Court stated that exhaustion, though a matter of comity not jurisdiction, is required. "An exception is made only if there is no opportunity to obtain redress in state court or if the corrective process is so clearly deficient as to render futile any effort to obtain relief." 454 U.S. at 3.
The Court of Appeals for the Ninth Circuit has described state court delay that is "unusual," "extraordinary," or "unreasonable" as the sort of delay that renders the state corrective process "ineffective" under section 2254(b)(1). Phillips v. Vasquez, 56 F.3d 1030, 1035 (9th Cir. 1995). While the court in Phillips addressed a unique situation not present here,*fn3 other courts have held that unexplained delays of as little as one year were sufficient to excuse exhaustion.
E.g., Story v. Kindt, 26 F.3d 402, 405-07 (3rd Cir. 1994) (nine-year delay) (cited with approval in Phillips, 56 F.3d at 1035); Burkett v. Cunningham, 826 F.2d 1208, 1218 (3d Cir.1987) (five-year delay) (cited with approval in Phillips, 56 F.3d at 1035); Wojtczak v. Fulcomer, 800 F.2d 353, 356 (3rd Cir. 1986) (three and a half year delay in ruling on the state habeas petition excuses exhaustion); Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978) ("Breazeale's state habeas petition has been completely dormant for over one year, and the state has offered us no reason for its torpor. Under these circumstances, the unexplained delay requires us to say that the state remedy is ineffective."); Dozie v. Cady, 430 F.2d 637 (7th Cir. 1970) (unjustified seventeen-month delay considered inordinate and excuses exhaustion).
Besides Phillips, none of the cases cited in the prior paragraph were capital cases. The few capital cases in which courts in this circuit have considered this issue take note of the well-known fact that capital cases involve substantially lengthier briefs and records and generally take substantially longer for courts to resolve. See Gay, 262 Fed. Appx. at 828; Hamilton v. Calderon, 134 F.3d 938, 939 (9th Cir. 1998) (delay of less than two years not "extreme delay"). There is no question that petitioner's third habeas corpus petition before the California Supreme Court is voluminous. According to the California Supreme Court's docket, petitioner filed a 565-page state ...