Under these circumstances in order to avoid even further delay, it is appropriate to vacate the district court's judgment denying the appellant's Rule 60(b) motion and remand for further consideration. See Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982); Seemiller v. Wyrick, 663 F.2d 805, 807-808 (8th Cir. 1981). If within ninety days from the date of this Court's opinion the state court has not rendered a decision on the appellant's Rule 27.26 motion, the district court should vacate its dismissal of Pool's habeas petition and consider the case on its merits. Should the state court render a decision adverse to the appellant on his Rule 27.26 motion within the ninety-day period, the district court should reconsider whether Pool must still exhaust his state remedies.
Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982).
However, in several cases where petitioners have not obtained any state-court ruling on post-conviction motions after inordinate delay, this Court has remanded to the District Court with directions to consider the habeas petition on the merits if the state court still has not rendered a decision within a stated period of time. See, e.g., Pool v. Wyrick, 703 F.2d 1064 (8th Cir. 1983) (per curiam) (no ruling on post-conviction motion after nearly three years); Wade v. Lockhart, 674 F.2d 721 (8th Cir. 1982) (no decision on post-conviction motion after more than two years). In Mucie, the State did not file a response to petitioner's motion for post-conviction relief for nearly a year, and the State court did not pass on the motion for over thirty months.
Pool v. Wyrick, 703 F.2d 1064, 1067 (8th Cir. 1983) (per curiam); Seemiller v. Circuit Court Clerk of St. Charles County, 640 F.2d 175, 176 (8th Cir. 1981) (per curiam). See also Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982) (vacating district court's dismissal of federal habeas petition for failure to exhaust where petition was pending in state court for well over two years). A three-year delay is substantial and may amount to a deprivation of constitutional rights.
Deters v. Collins, 985 F.2d 789, 795-96 (5th Cir. 1993). See also Carpenter v. Young, 50 F.3d 869, 870-71 (10th Cir. 1995) (two-year delay creates presumption that state appellate process is ineffective); Coe v. Thurman, 922 F.2d 528. 530-01 (9th Cir. 1990) (four-year delay); Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982) (two-year delay); Matthews v. Johnson, No. 3-97-CV-1475-T (N.D. Tex. Sept. 17, 1996), rec. adopted by ORDER (N.D.Tex. Oct. 23, 1996) (four-year delay). Petitioner has failed to show that the delay in this case, while certainly regrettable, results from an inadequate state procedure.
Vail v. Estelle, 711 F.2d 630, 632 (5th Cir. 1983); Shelton v. Heard, 696 F.2d 1127, 1129 (1983). See also Carpenter v. Young, 50 F.3d 869, 870-71 (10th Cir. 1995) (two year delay creates presumption that state appellate process is ineffective); Coe v. Thurman, 922 F.2d 528, 530-31 (9th Cir. 1990) (four year delay); Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982) (two year delay). However, the delay must be solely attributable to inadequate state procedures and impinge on the petitioner's due process rights.
The state cannot complain of lack of exhaustion when it itself was responsible for this failure. See Breazeale v. Bradley, 582 F.2d 5, 6 (5th Cir. 1978) (delay of state remedy for over a year amounted to "a prolonged sleep, [which] in state remedies as in the rest of us, may safely be said to evince exhaustion"); see also Pool v. Wyrick, 703 F.2d 1064, 1066 (8th Cir. 1983); Wade v. Lockhart, 674 F.2d 721, 722 (8th Cir. 1982); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir. 1976). Petitioner's request for habeas corpus relief is appropriate.
See Mucie v. Missouri State Department of Corrections, supra. An order similar to that entered in Seemiller was recently entered by the Court of Appeals for the Eighth Circuit in Wade v. Lockhart, 674 F.2d 721 (8th Cir. 1982). Wade vacated and remanded an outright dismissal of a State prisoner's habeas petition for failure to exhaust.