United States v. William Hawkins, 78 F.3d 348 (8th Cir. 1996). · Go Syfert
United States v. William Hawkins, 78 F.3d 348 (8th Cir. 1996). Cases Citing This Book View Copy Cite
“hawkins cannot show that his incarceration was oppressive if he was rightfully incarcerated.”
71 citation events (42 in the last 25 years) across 16 distinct courts.
Strongest positive: People v. Whittiker (coloctapp, 2007-04-19)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) People v. Whittiker
Colo. Ct. App. · 2007 · signal: see · quote attribution · 1 verbatim quote · confidence high
hawkins cannot show that his incarceration was oppressive if he was rightfully incarcerated.
discussed Cited as authority (rule) People v. Curren
Colo. Ct. App. · 2014 · confidence medium
See Rios, 43 P.3d at 733 (holding that a two-year delay for resolution of an appeal does not rise to the level of "inordinate delay" necessitating inquiry into the three remaining Barker factors); see also United States v. Smith, 94 F.3d 204, 212-13 (6th Cir.1996) (holding that a three-year delay while appellate court awaited related decisions pending in superior tribunals did not violate the defendant's right to speedy trial); United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996) (holding that four-year delay in processing the defendant's appeal did not violate his right to a speedy appea…
discussed Cited as authority (rule) United States v. Schwarte
8th Cir. · 2011 · confidence medium
These claims are better litigated in a collateral proceeding “because facts outside the record generally need to be developed to resolve the claim.” United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996); cf. United States v. Williams, 897 F.2d 1430, 1434 (8th Cir.1990) (finding that record was sufficiently developed where defendant’s trial counsel and investigator had testified at post-trial hearing about their investigation of a witness).
discussed Cited as authority (rule) United States v. Bush (2×)
C.A.A.F. · 2009 · confidence medium
See, e.g., United States v. Rodriguez, 259 Fed.Appx. 270, 277-78 (11th Cir.2007); United States v. DeLeon, 444 F.3d 41 , 57 (1st Cir.2006); United States v. Gray, 52 Fed.Appx. 650, 654 (6th Cir.2002); United States v. Wiktor, 146 F.3d 815, 819 (10th Cir. 1998); United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996); United States v. Kimmons, 917 F.2d 1011, 1014-15 (7th Cir.1990); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir. 1990); United States v. Alston, 412 A.2d 351, 357-58 (D.C.1980).
discussed Cited as authority (rule) United States v. Reynaldo Rodriguez
11th Cir. · 2007 · confidence medium
See United States v. Smith, 94 F.3d 204, 208 (6th Cir. 1996); United States v. Hawkins, 78 F.3d 348, 350 (8th Cir. 1996); United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir. 1994); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett v. Cunningham, 826 F.2d 1208, 1225 (3d Cir.1987); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir. 1984).
discussed Cited as authority (rule) United States v. Adams
N.M.C.C.A. · 2006 · confidence medium
In reviewing claims of post-trial delay under either the Fifth or Fourteenth Amendment due process clauses, the appellate courts have applied the Supreme Court’s Sixth Amendment analysis of pretrial delays as set forth in Barker v. Wingo, 407 U.S. 514 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). 3 United States v. Hawkins, 78 F.3d 348, 350 (8th Cir.1996); Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir.1995); Hill v. Reynolds, 942 F.2d 1494, 1497 (10th Cir.1991); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Rheuark v. Shaw, 628 …
examined Cited as authority (rule) United States v. Moreno (4×) also: Cited "see, e.g."
C.A.A.F. · 2006 · confidence medium
Latimore v. Spencer, 994 F.Supp. 60, 67 (D.Mass.1998) ("[T]he First Circuit examines such cases on a case by case basis applying factors similar to those employed in Barker.")', Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir.1987); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.), cert. denied, 469 U.S. 1033 , 105 S.Ct. 505 , 83 L.Ed.2d 396 (1984); Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980), ce rt. denied, 450 U.S. 931 , 101 S.Ct. 1392 , 67 L.Ed.2d 365 (1981); United States v. Smith, 94 F.3d 204, 207 (6th Cir.1996); Unit…
discussed Cited as authority (rule) United States v. Deleon (2×) also: Cited "see, e.g."
1st Cir. · 2006 · confidence medium
Those courts that have accepted the analogy between pretrial delay and appellate delay have adopted this inquiry almost whole cloth and looked for three kinds of potential prejudice from appellate delay: “(1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of the appeal, and (3) impairment of the convicted person’s grounds for appeal or of the viability of his defense in case of retrial.” Hawkins, 78 F.3d at 351 (internal quotation marks omitted) (quoting Tucker, 8 F.3d at 676); see also Rheuark, 628 F.2d at 303 n. 8.
discussed Cited as authority (rule) State v. Berryman (2×)
N.C. · 2006 · confidence medium
China, 150 N.C.App. at 473-75 , 564 S.E.2d at 68-69 ; Hammonds, 141 N.C.App. at 164 , 541 S.E.2d at 175 ; United States v. Smith, 94 F.3d 204, 207 (6th Cir.1996), cert. denied, 519 U.S. 1133 , 117 S.Ct. 997 , 136 L.Ed.2d 877 (1997); United States v. Hawkins, 78 F.3d 348, 350-51 (8th Cir.), cert. denied, 519 U.S. 844 , 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.), cert. denied, 498 U.S. 963 , 111 S.Ct. 398 , 112 L.Ed.2d 407 (1990); Burkett v. Cunningham, 826 F.2d 1208, 1222 (3d Cir.1987); Un…
discussed Cited as authority (rule) United States v. Toohey (2×) also: Cited "see"
N.M.C.C.A. · 2004 · confidence medium
See Mims v. LeBlanc, 176 F.3d 280, 282 (5th Cir.1999); United States v. Smith, 94 F.3d 204, 206-08 (6th Cir.1996); United States v. Hawkins, 78 F.3d 348, 350-51 (8th Cir.1996); Simmons v. Beyer, 44 F.3d 1160, 1171 (3d Cir.1995); United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir.1994); Harris v. Champion, 15 F.3d 1538, 1546 (10th Cir.1994); United States v. Kimmons, 917 F.2d 1011, 1015 (7th Cir.1990); Simmons v. Reynolds, 898 F.2d 865 (2d Cir.1990); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.1984).
discussed Cited as authority (rule) Toohey v. United States (2×)
C.A.A.F. · 2004 · confidence medium
See, e.g., id.; United States v. Hawkins, 78 F.3d 348, 350 (8th Cir.1996); Hill v. Reynolds, 942 F.2d 1494, 1497 (10th Cir.1991); United States v. Antoine, 906 F.2d 1379 (9th Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Rheuark v. Shaw, 628 F.2d 297, 303-04 (5th Cir.1980); United States v. Johnson, 732 F.2d 379, 381-82 (4th Cir.1984). . 407 U.S. 514, 530 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972). .
examined Cited as authority (rule) Daniel v. State (3×) also: Cited "see"
Wyo. · 2003 · confidence medium
See, eg., United States v. Smith, 94 F.3d 204, 206-07 (6th Cir.1996); United States v. Hawkins, 78 F.3d 348, 350 (8th Cir.1996); United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.1995); Harvis, 15 F.3d at 1557 ; United States v. Antoine, 906 F.2d 1379, 1382 (9th Cir.1990); Simmons v. Reynolds, 898 F.2d 865, 868 (2d Cir.1990); Rheuark, 628 F.2d at 302 ; see also Evitts v. Lucey, 469 U.S. 387, 393 , 105 S.Ct. 830, 834 , 83 L.Ed.2d 821 (1985) (if state has created appellate courts as integral part of system for adjudicating guilt or innocence, procedures used in deciding appeals must…
discussed Cited as authority (rule) United States v. Roland Vaca
8th Cir. · 2002 · confidence medium
The Sentencing Guidelines permit a two-level reduction in the base offense level if a defendant “‘clearly demonstrates acceptance of responsibility for his offense.’” United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996) (quoting U.S.S.G. § 3E1.1(a)).
discussed Cited as authority (rule) United States v. Roland S. Vaca
8th Cir. · 2002 · confidence medium
The Sentencing Guidelines permit a two-level reduction in the base offense level if a defendant “ ‘clearly demonstrates acceptance of responsibility for his offense.’ ” United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996) (quoting U.S.S.G. § 3El.l(a)).
discussed Cited as authority (rule) Campiti v. Matesanz
D. Mass. · 2002 · confidence medium
See United States v. Luciano-Mosquera, 63 F.3d 1142, 1158 (1st Cir.1995); Simmons v. Beyer, 44 F.3d 1160, 1169 (3rd Cir.1995); US. v. Hawkins 78 F.3d 348, 351 (8th Cir.1996); United States v. Tucker, 8 F.3d 673, 676 (9th Cir.1993) (en banc); Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Cody v. Henderson, 936 F.2d 715, 719 (2nd Cir.1991); U.S. v. Bermea, 30 F.3d 1539 , 1568 (5th Cir.1994).
discussed Cited as authority (rule) United States v. Kenneth Ray Martin
8th Cir. · 2001 · confidence medium
Generally, we do not consider ineffective assistance claims that have not first been presented to the district court because such claims “are best evaluated on the basis of facts developed outside the original record,” and are therefore “more properly raised in a habeas corpus petition brought under 28 U.S.C. § 2255 .” U.S. v. Christians, 200 F.3d 1124, 1126 (8th Cir. 1999) (citation omitted); United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir. 1996).
discussed Cited as authority (rule) United States v. Kenneth Ray Martin
8th Cir. · 2001 · confidence medium
Generally, we do not consider ineffective assistance claims that have not first been presented to the district court because such claims “are best evaluated on the basis of facts developed outside the original record,” and are therefore “more properly raised in a habeas corpus petition brought under 28 U.S.C. § 2255 .” U.S. v. Christians, 200 F.3d 1124, 1126 (8th Cir.1999) (citation omitted); United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir.1996).
discussed Cited as authority (rule) Furnish v. United States
E.D. Mo. · 2000 · confidence medium
An ineffective assistance of trial counsel claim "is usually not cognizable on direct appeal `because facts outside the record generally need to be developed to resolve the claim.'" United States v. Jones, 121 F.3d 369, 370 (8th Cir.1997) (quoting United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996)).
discussed Cited as authority (rule) Mountjoy v. Cunningham
D.N.H. · 2000 · confidence medium
See Barker v. Winqo, 407 U.S. 514, 530 (1972); Mims v. LeBlanc, 176 F.3d 280, 282 (5th Cir. 1999); United States v. Smith, 94 F.3d 204, 209 (6th Cir. 1996); United States v. Hawkins, 78 F.3d 348, 350 (8th Cir. 1996); Simmons v. Beyer, 44 F.3d 1160, 1169 (2d Cir. 1995); Latimore v. Spencer, 994 F. Supp. 60, 67 (D.
cited Cited as authority (rule) United States v. Richard Payton, Also Known as Cheese
8th Cir. · 1999 · confidence medium
See United States v. Jones, 121 F.3d 369, 370 (8th Cir.1997); United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, 519 U.S. 844 , 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
discussed Cited as authority (rule) United States v. Leon Bell
8th Cir. · 1999 · confidence medium
See United States v. Mohamed, 161 F.3d 1132, 1136 (8th Cir. 1998) (defendant not entitled to reduction merely because she pleads guilty), petition for cert. filed, No. 98-8243 (U.S. Feb. 16, 1999); United States v. Hawkins, 78 F.3d 348, 352 (1996) (voluntarily admitting involvement in offense does not automatically entitle defendant to reduction), cert. denied, 117 S. Ct. 126 (1996); United States v. Byrd, 76 F.3d 194, 196-97 (8th Cir. 1996) (discussing burden); cf. United States v. Chevre, 146 F.3d 622, 625 (8th Cir. 1998) (defendant may receive reduction if he demonstrates recognition and af…
cited Cited as authority (rule) United States v. Richard Payton
8th Cir. · 1999 · confidence medium
See United States v. Jones, 121 F.3d 369, 370 (8th Cir. 1997); United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, 117 S. Ct. 126 (1996).
discussed Cited as authority (rule) United States v. Demetrius Brown, Also Known as Pondo, Also Known as Darius Dixon, Also Known as Antoine Deonte Moore, United States of America v. Carlos Laron Hewitt, Also Known as Lo, Also Known as Laron Stable, Also Known as Laron Smith, Also Known as Laron Stewart, United States of America v. Michael Lynn Flowers
8th Cir. · 1998 · confidence medium
When a defendant has met this requirement and has an offense level greater than 16, section 3E1.1(b)(2) allows for an additional one-level decrease where he has also "timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently." See also United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
discussed Cited as authority (rule) United States v. Demetrius Brown
8th Cir. · 1998 · confidence medium
When a defendant has met this requirement and has an offense level greater than 16, section 3E1.1(b)(2) allows for an additional one-level decrease where he has also “timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources efficiently.” See also United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 126 , 136 L.Ed.2d 76 -(1996).
discussed Cited as authority (rule) United States v. Morris E. Jones
8th Cir. · 1997 · confidence medium
Save for those exceptional cases in which the result of not considering the claim would be a “‘plain miscarriage of justice or inconsistent with substantial justice,’” United States v. Martin, 59 F.3d 767, 771 (8th Cir. 1995) (citation omitted), a claim of ineffective assistance is usually not cognizable on direct appeal “because facts outside the record generally need to be developed to resolve the claim.” United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, 117 S. Ct. 126 (1996).
discussed Cited as authority (rule) United States v. Morris E. Jones
8th Cir. · 1997 · confidence medium
Save for those exceptional cases in which the result of not considering the claim would be a “ ‘plain miscarriage of justice or inconsistent with substantial justice,’ ” United States v. Martin, 59 F.3d 767, 771 (8th Cir.1995) (citation omitted), a claim of ineffective assistance is usually not cognizable on direct appeal “because facts outside the record generally need to be developed to resolve the claim.” United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
discussed Cited as authority (rule) United States v. John Henry Turner, Jr.
8th Cir. · 1997 · confidence medium
Under the first prong of the Brady analysis, “the government has no affirmative obligation to discover potentially exculpatory information which it neither possessed nor was aware of.” United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996) (quoting United States v. Dunn, 851 F.2d 1099, 1101 (8th Cir.1988)), cert. denied, — U.S. -, 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
discussed Cited as authority (rule) United States v. Bernard Hawkins
8th Cir. · 1996 · confidence medium
We review de novo the district court's application of section 3E1.1, United States v. Barris, 46 F.3d 33, 35 (8th Cir. 1995) (per curiam), and for clear error its attendant factual findings, United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996), petition for cert. filed, (U.S. June 1, 1996) (No. 95-9212).
cited Cited "see" State v. Frausto
Utah Ct. App. · 2002 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996) ("Even if [the defendant's] appeal had been decided in a timely fashion, he still would have failed on the merits.
discussed Cited "see" People v. Rios (2×)
Colo. Ct. App. · 2001 · signal: see · confidence high
See United States v. Hawkins, supra; United States v. Luciano-Mosquera, supra. Incarceration is not "oppressive," and thus does not support a claim of prejudice under Barker, if the absence of a meritorious appeal establishes that the defendant is rightfully incarcerated.
cited Cited "see" United States v. Carl J. Curtis
8th Cir. · 2001 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir.1996); Marbinez-Cruz, 186 F.3d at 1105 .
cited Cited "see" United States v. Anthony King
8th Cir. · 2000 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir. 1996).
discussed Cited "see" United States v. Daniel W. Anderson
8th Cir. · 2000 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.) (ineffective-assistance-of-counsel claim is ordinarily first raised in collateral proceeding because facts outside record generally need to be developed to resolve claim), cert. denied, 519 U.S. 844 (1996).
cited Cited "see" United States v. Kenneth Goings
8th Cir. · 2000 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996).
cited Cited "see" United States v. Kenneth Goings
8th Cir. · 2000 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996).
discussed Cited "see" State v. Lennon
Wash. Ct. App. · 1999 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.) (while no one factor is determinative, no'due process violation can be established absent a showing of prejudice), cert. denied, 519 U.S. 844 (1996).
cited Cited "see" United States v. Flavio Diaz Santana
8th Cir. · 1998 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir.1996), ce rt. denied, — U.S.-, 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
cited Cited "see" United States v. Diaz-Santana
8th Cir. · 1998 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351-52 (8th Cir. 1996), cert. denied, 117 S. Ct. 126 (1996).
discussed Cited "see" United States v. Rickey Layne Keeth
8th Cir. · 1998 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.) (district court's findings of fact in determining acceptance-of-responsibility adjustment are reviewed for clear error), cert. denied, --- U.S. ----, 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996); United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir.1993) (credibility determinations are virtually unreviewable on appeal).
discussed Cited "see" United States v. Rickey Layne Keeth
8th Cir. · 1998 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.) (district court&s findings of fact in determining acceptance-of- responsibility adjustment are reviewed for clear error), cert. denied, 117 S. Ct. 126 (1996); United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993) (credibility determinations are virtually unreviewable on appeal).
cited Cited "see" United States v. William E. Hawkins
7th Cir. · 1998 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348 (8th Cir.), cert. denied, 519 U.S. 844 , 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
cited Cited "see" United States v. David Lee Heath
8th Cir. · 1997 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, 117 S. Ct. 126 (1996).
cited Cited "see" United States v. David Lee Heath
8th Cir. · 1997 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.), cert. denied, — U.S. -, 117 S.Ct. 126 , 136 L.Ed.2d 76 (1996).
cited Cited "see" United States v. Edward J. Clary
8th Cir. · 1996 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996), petition for cert. filed, (U.S. June 1, 1996) (No. 95-9212).
cited Cited "see" United States v. Edward James Clary
8th Cir. · 1996 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996), petition for cert. filed, (U.S. June 1, 1996) (No. 95-9212).
cited Cited "see" United States v. Donald Dean Hartle
8th Cir. · 1996 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir.1996) (standard of review), petition for cert. filed, No. 95-9212 (U.S. June 1, 1996).
cited Cited "see" United States v. Donald Hartle
8th Cir. · 1996 · signal: see · confidence high
See United States v. Hawkins, 78 F.3d 348, 352 (8th Cir. 1996) (standard of review), petition for cert. filed, No. 95-9212 (U.S. June 1, 1996).
discussed Cited "see, e.g." Hoang v. People
Colo. · 2014 · signal: see also · confidence medium
See, e.g., People v. Brewster, 240 P.3d 291, 297 (Colo.App.2009); People v. Whittiker, 181 P.3d 264, 270 (Colo.App.2006) (surveying cases); see also United States v. Hawkins, 78 F.3d 348, 350-51 (8th Cir.1996) (surveying cases). [ 46 To date, other jurisdictions have taken one of two basic approaches to speedy appeal claims.
discussed Cited "see, e.g." Huenefeld v. Maloney
D. Mass. · 1999 · signal: see, e.g. · confidence medium
See, e.g., United States v. Hawkins, 78 F.3d 348, 351 (8th Cir.1996) (“the government has no affirmative obligation to discover potentially exculpatory information which it neither possessed nor of which it was aware”).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
William HAWKINS, Appellant
95-2232.
Court of Appeals for the Eighth Circuit.
Mar 5, 1996.
78 F.3d 348
Allen Schoenberger, Chicago, Illinois, argued, for appellant., Howard J. Marcus, Assistant U.S. Attorney, St. Louis, MO, argued, for appellee.
Fagg, Heaney, Wollman.
Cited by 55 opinions  |  Published
WOLLMAN, Circuit Judge.

After a jury found William Hawkins guilty of five counts of cocaine distribution in violation of 21 U.S.C. § 841(a), the district court [1] sentenced him to 63 months’ imprisonment on each count, to be served concurrently, and four years’ supervised release. Hawkins appeals his conviction and sentence. We affirm.

I.

In 1988, Ted McKinney became an informant for the Federal Bureau of Investigation (FBI) after being confronted with evidence of his criminal activity. With McKinney’s help, the FBI conducted an investigation targeting approximately fifteen individuals. One of the targets of the FBI investigation was William Hawkins, an old friend of McKinney’s.

In November 1988, McKinney and Hawkins had several telephone conversations concerning cocaine. Hawkins sold cocaine to McKinney on five occasions from November 1988 to August 1989. During this time, McKinney introduced undercover FBI Agent John Quinn to Hawkins. Quinn was present during one of the drug transactions. The telephone calls and meetings between McKinney and Hawkins were audio recorded. Some of the meetings were also recorded on videotape.

Hawkins did not dispute that he had sold cocaine to McKinney and Quinn, resting instead on the defense that the government had entrapped him. The jury found Hawkins guilty on all five counts, and the district court sentenced him on March 15, 1991. On March 25, 1991, Hawkins’s trial counsel filed a notice of appeal. For reasons that are not entirely clear, the appeal was not processed by the clerk’s office until May 18, 1995. Hawkins raises several issues on appeal. First, he contends that his due process rights were violated due to the delay in processing his appeal. He also alleges violations of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500, and brings an ineffective assistance of counsel claim. Finally, he claims that the district court erred in denying him a sentence reduction for acceptance of responsibility.

II. Due Process Claim

Although the Supreme Court has never explicitly acknowledged a due process right to a speedy appeal, a number of courts of appeals have recognized that excessive delay in processing appeals can violate due process. See, e.g., Simmons v. Beyer, 44 F.3d 1160, 1169 (3rd Cir.1995); United States v. Tucker, 8 F.3d 673, 676 (9th Cir. 1993) (en banc), cert. denied, — U.S. -, 114 S.Ct. 1230, 127 L.Ed.2d 574 (1994); Harris v. Champion, 15 F.3d 1538, 1558 (10th Cir.1994); Cody v. Henderson, 936 F.2d 715, 719 (2nd Cir.1991). In evaluating appellate delay claims, courts follow the test set out in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972), to determine whether due process was satisfied. Although the issue in Barker was whether the defendant was denied his right to a speedy trial, courts find the criteria set out in that case generally applicable. The factors to consider are: (1) length of delay; (2) reason[*351] for delay; (3) defendant’s assertion of his right; and (4) prejudice to the defendant. Id.

Applying the first factor, we agree with Hawkins that the four-year delay was lengthy. Not every inordinate delay in processing an appeal, however, amounts to a denial of due process. Rheuark v. Shaw, 628 F.2d 297, 303 (5th Cir.1980), cert. denied, 450 U.S. 931, 101 S.Ct. 1392, 67 L.Ed.2d 365 (1981). As to the second factor, the reason for delay is not entirely clear from the record below. Apparently, the clerk’s office misplaced the appeal and did not locate it until Hawkins made an inquiry, so Hawkins clearly was not to blame for the delay. As to the third factor, Hawkins did ultimately pursue appellate review, although he did not inquire about the status of his appeal until more than two years had elapsed since it was filed. Although the first three factors weigh in Hawkins’s favor, he must also show prejudice from the delay to establish a due process violation. See Tucker, 8 F.3d at 676.

With respect to the fourth factor, courts have established three categories of potential prejudice resulting from appellate delay: “(1) oppressive incarceration pending appeal, (2) anxiety and concern of the convicted party awaiting the outcome of the appeal, and (3) impairment of the convicted person’s grounds for appeal or of the viability of his defense in ease of retrial.” Tucker, 8 F.3d at 676 (citation omitted). See also Simmons, 44 F.3d at 1170.

Hawkins cannot show that his incarceration was oppressive if he was rightfully incarcerated. Thus, we must turn to the merits of his appeal. We find them to be meritless.

Hawkins first alleges that the government faded to provide him with discoverable material pursuant to Brady and the Jencks Act. He claims that during the last day of trial he received materials from a case pending against him in the Southern District of Illinois that supported his entrapment defense and provided impeaching information against McKinney. Hawkins failed to make these materials part of the record.

Under Brady, the government is required to “make available to a criminal defendant exculpatory evidence in its possession material to guilt or punishment.” United States v. Stuart, 923 F.2d 607, 612 (8th Cir.), cert. denied, 499 U.S. 967, 111 S.Ct. 1599, 113 L.Ed.2d 662 (1991). Hawkins attempts to hold the Missouri prosecutor accountable for information possessed by the Illinois prosecutor under the theory that all of the information was held by the government and therefore subject to Brady. This assumption is erroneous. We have held that “the government has no affirmative obligation to discover potentially exculpatory information which it neither possessed nor of which it was aware.” United States v. Dunn, 851 F.2d 1099,1101 (8th Cir.1988). At Hawkins’s sentencing hearing, the prosecutor told the court that he was not aware of the discovery materials in the Illinois case. In any event, the “prosecutor has no duty to undertake a fishing expedition in other jurisdictions in an effort to find impeaching evidence.” United States v. Jones, 34 F.3d 596, 599 (8th Cir.1994) (citing Stuart, 923 F.2d at 612), cert. denied, — U.S. -, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995).

Hawkins also alleges that his counsel was ineffective because he failed to: (1) perfect the appeal; (2) call McKinney as a witness in the defense ease-in-chief; (3) establish on the record the content of the materials received from the Illinois case; (4) move for a mistrial or continuance as a result of the belated discovery; and (5) properly interview a defense witness. The government objects to our consideration of this claim and argues that it should be raised in a collateral proceeding pursuant to 28 U.S.C. § 2255.

An ineffective assistance of counsel claim is ordinarily first raised in a collateral proceeding because facts outside the record generally need to be developed to resolve the claim. United States v. Lewin, 900 F.2d 145, 149 (8th Cir.1990). Accordingly, we have declined to “‘consider an ineffective assistance claim on direct appeal if the claim has not been presented to the district court so that a proper factual record can be made.’ ” United States v. Logan, 49 F.3d 352, 361 (8th Cir.1995) (quoting United States v. Kenyon, 7 F.3d 783, 785 (8th Cir.1993)). In Logan, we declined to address an ineffective assis[*352] tance claim on direct appeal despite the defendant’s contention that no factual findings needed to be made by the district court. Id. at 361. In that case, we stated that “[i]f either the district court had addressed this issue or the government did not object to our hearing this issue, we would address it. However, since neither of these conditions are satisfied, we decline to consider this issue on direct appeal.” Id. We find the present case analogous to Logan, and thus we decline to address the effective assistance claim, which Hawkins may raise in a section 2255 proceeding if he so desires.

Regarding the second category of potential prejudice, Hawkins has not shown that his anxiety and concern are greater than any other prisoner pending the outcome of an appeal. See Tucker, 8 F.3d at 676. In assessing the third category, Hawkins shows no impairment of his grounds for appeal because the appeal itself fails on the merits. See id. at 675 (stating that “[ojrdinarily, where the claims asserted on appeal would not entitle the defendant to reversal, appellate delay does not result in prejudice”). See also United States v. Hasting, 461 U.S. 499, 506, 103 S.Ct. 1974, 1979, 76 L.Ed.2d 96 (1983). In other words, even if Hawkins’s appeal had been decided in a timely fashion, he still would have failed on the merits. Thus, Hawkins’s due process rights were not violated, for he has failed to show prejudice.

III. Acceptance of Responsibility

Hawkins also contends that the district court erred in refusing to reduce his base offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. The Sentencing Guidelines permit a two-level reduction in the base offense level if a defendant “clearly demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3El.l(a). The determination ‘“whether a defendant has accepted responsibility is a factual one, depending largely on credibility assessments by the sentencing judge, who can far better evaluate the defendant’s acceptance of responsibility than can a reviewing court.’ ” United States v. Grimes, 899 F.2d 731, 732 (8th Cir.) (quoting United States v. Evidente, 894 F.2d 1000, 1002 (8th Cir.1990)), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990). We review for clear error a district court’s findings of fact in determining a reduction for acceptance of responsibility. United States v. Laird, 948 F.2d 444, 446-47 (8th Cir.1991).

Hawkins argues that he is entitled to the reduction because he admitted the substantive offense. Voluntarily admitting involvement in the offense charged, however, does not automatically entitle a defendant to a reduction for acceptance of responsibility. United States v. Davila, 964 F.2d 778, 784 (8th Cir.1992).

The Presentence Investigation Report (PSR) did not recommend an acceptance-of-responsibility reduction because Hawkins did not cooperate with the government investigation and because he did not voluntarily withdraw from criminal conduct. Relying on the PSR, the district court made a specific finding that Hawkins had not cooperated with the government. Because the district court is in a unique position to evaluate a defendant’s credibility, its decision should not be disturbed unless it is without foundation. Grimes, 899 F.2d at 732. We cannot say that there was no foundation for the district court’s denial of a reduction for acceptance of responsibility in this case.

The judgment and sentence are affirmed.

1

. The Honorable William L. Hungate, United States District Judge for the Eastern District of Missouri.