thirteen months prior to the psychiatric examination and the period from June 1987 to the present. In the first period, discovery was being taken and in the second period the delays were occasioned by the motion to reconsider the denial of the motion to suppress evidence and the subsequent appeal by the State.
Maust relies on the principle that inordinate delay alone may excuse failure to exhaust state remedies inasmuch as the delay can render the state court remedy ineffective. Lowe v. Duckworth, 663 F.2d 42, 43 (7th Cir. 1981) (three and one-half year delay in hearing post-conviction motions, despite petitioner's protests, is excessive); United States ex rel. Smith v. Twomey, 486 F.2d 736, 738 (7th Cir. 1973) (no violation because appeal delays occasioned largely by petitioner's counsel). However, it is difficult to determine exactly how much delay is excessive in this pre-trial situation.
In Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986), exhaustion was excused when no hearing has been held on the petitioner's application for post-conviction review for over two and half years. Five different attorneys were appointed to represent him and there was no evidence that he had caused the delay himself. In Maust's case the delays were occasioned by both the State and the defendant in fairly even measure. While Maust has been incarcerated for many years, the delay prior to the fitness evaluation was a matter of thirteen months and the delay following the notice of appeal has been over two years but has been occasioned by both Maust's counsel and the slow machinations of the State.
In Brooks v. Jones, 875 F.2d 30 (2d Cir. 1989), the court of appeals reversed the lower court's denial of the petition for failure to exhaust state remedies because the petitioner's attorney had not filed a brief after eight years. The Brooks court said that it was unnecessary for the petitioner to first petition for a writ of coram nobis because "it is perfectly apparent, . . . that a prisoner's requests to the state court and requests to state-appointed counsel have been to no avail." Id. at 31. Here, however, Maust has not sought help from the court, although he maintains that he has attempted to appeal to his appointed counsel to no avail.
Most of the cases that apply this principle do so on the basis of the court's failure to act on a petition for one reason or another. See, e.g., Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987) (crowded court calendar delays sentencing over five years despite prisoner's protests); Vail v. Estelle, 711 F.2d 630 (5th Cir. 1983) (court's five-year delay in hearing appeal after fully-briefed); Shelton v. Heard, 696 F.2d 1127 (5th Cir. 1983) (delay of over two years in hearing appeal because of court backlog). While the court has no doubt failed to some extent in its duty to supervise the progress of Maust's case, the delays cannot be attributed solely to the court's inaction.
Maust goes on to address head-on the standard for showing a violation of the sixth amendment right to a speedy trial. Because we do not find that the delays have been so egregious that Maust has been deprived of an effective state remedy, we do not reach the merits on this issue. Because the petitioner has shown neither cause and prejudice nor that the state remedy would be ineffective, his procedural default cannot be overlooked, and we must grant summary judgment to the State and dismiss Maust's petition insofar as it attempts to argue that his right to a speedy trial has been violated.
B. Ineffective Assistance of Counsel
Again, Maust has failed to raise in state court his argument that he was denied effective assistance of counsel. The requirement of the exhaustion, "which is 'principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings,' Rose v. Lundy, 455 U.S. 509, 518, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray, 477 U.S. at 489.
However, ineffective assistance of counsel may be cause for procedural default. Murray, 477 U.S. at 488, 106 S. Ct. at 2645.
To show that his representation has been ineffective, the petitioner must show that his counsel's performance fell below an objective standard of reasonableness and that the deficiencies prejudiced the result. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). To show ineffective assistance of counsel, we must look to the totality of the circumstances, "ever mindful that there exists a strong presumption that counsel rendered reasonably effective assistance." United States v. Muehlbauer, 892 F.2d 664, 668 (7th Cir. 1990). Maust argues that his appointed counsel's performance fell below an objective standard of reasonableness prior to the psychiatric examination because counsel failed to move to set bail or to dismiss pursuant to the Illinois Detainer Act. He also argues that the many continuances that his counsel either requested or agreed to further evidence his ineffectiveness. Maust also argues that he has had ineffective assistance on appeal in part because he has been assigned a number of different appellate counsel and because they have requested several extensions prior to filing the response to the State's appeal.
Again, we are at a loss to evaluate the reasons for the continuances prior to the psychiatric evaluations, although we note that the public defender shares responsibility with the state in almost equal measure for these delays. Nor can we say that such delays, while perhaps not always justified, fall "outside the wide range of professionally competent assistance." Balfour v. Haws, 892 F.2d 556, 562 (7th Cir. 1989), quoting Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. In fact, during the period while Maust was under psychiatric evaluation, the public defender filed a number of motions to suppress and quash arrest. Likewise, following a fitness determination, counsel moved to set bail, moved to dismiss, and successfully moved to reconsider the denial of the earlier motions to suppress and quash arrest. Consequently, Maust's primary argument appears to be that counsel was tardy in making these motions, not that they failed to do so. We cannot say on the record before us that such tardiness falls outside the pale of effective assistance and rises to the level of a constitutional violation.
As for the delays in entering an appeal response, it is true that the process was slowed down considerably by the fact that several different appellate defenders were assigned to the case. The motions for extension argued the need for additional time because counsel had just been assigned to the case and had other pressing matters to attend to. These excuses give cold comfort to Maust, but we cannot say that the requests for extensions constitute ineffective assistance of counsel under the circumstances. As Maust has not convinced us that he has had ineffective assistance of counsel, we need not move to the prejudice prong of the Strickland analysis.
Consequently, we find that Maust has procedurally defaulted on the sixth amendment claim of ineffective assistance of counsel, and we must grant the State's motion for summary judgment and dismiss the petition.
It is with some reluctance that we decline to entertain this petition for a writ of habeas corpus because of procedural default. While our hands are bound by the requirements of comity in this instance (not least because this is a pre-trial matter), we believe that the State's and appointed counsels' behavior has endangered Maust's constitutional rights, and we encourage Maust to take his grievances to a state forum. Maust has not convinced us that we should excuse his failure to exhaust, but we feel that the combination of events that has resulted in Maust's incarceration without benefit of trial should be a matter for grave concern to the Illinois courts.
The wheels of justice have been moving on Maust's behalf, albeit at a snail's pace. The pending appeal is perhaps potentially dispositive of the case, and we trust that the attorneys and the court will move quickly to resolve this matter.
For the foregoing reasons, we grant the State's motion for summary judgment and deny the petitioner's motion. We dismiss the petition for a writ of habeas corpus pursuant to U.S.C. § 2241 because of procedural default.