IN RE CLINTON ELDRIDGE, PETITIONER No. 89-7768 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Prohibition And Or Mandamus To The District Of Columbia Court Of Appeals And The Superior Court Of The District Of Columbia Brief For The Respondents In Opposition OPINIONS BELOW The judment orders of the District of Columbia Court of Appeals denying petitioner's petition for writ of mandamus (Pet. App. C), and denying his motion for summary vacatur of his conviction (Pet. App. E) are not reported. JURISDICTION The petition for a writ of prohibition and/or mandamus was filed on June 4, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1651(a). QUESTION PRESENTED 1. Whether petitioner has been denied due process by the delay in the processing of his appeal from a collateral attack on his conviction. STATEMENT On his guilty plea, entered on May 14, 1984, petitioner was convicted in the Superior Court for the District of Columbia on two counts of rape, in violation of 22 D.C. Code 2801, two counts of assault with intent to commit rape, in violation of 22 D.C. Code 501, one count of attempted rape, in violation of 22 D.C. Code 103 and 2801, two counts of first-degree burglary, in violation of 22 D.C. Code 1801(a), one count of robbery, in violation of 22 D.C. Code 2901, and one count of attempted robbery, in violation of 22 D.C. Code 2901 and 2902. He was sentenced on July 19, 1984, to a total term of imprisonment of 40 to 120 years. /1/ 1. On June 10, 1985, petitioner filed in the superior court a motion under D.C. Code 23-110 to withdraw his guilty plea. /2/ The court held an evidentiary hearing on petitioner's motion beginning on April 30, 1987. On May 26, 1988, the court denied the motion. Petitioner appealed the denial of his motion to the District of Columbia Court of Appeals by notice filed on June 21, 1988. 2. Petitioner thereafter filed in the court of appeals three papers related to his pending appeal in the proceeding for collateral review of his convictions. a. On June 18, 1989, petitioner filed a petition for a writ of mandamus in the court of appeals. (Pet. App. A.) Petitioner complained that the superior court had not transferred the transcripts of trial court proceedings that were to be made part of the record on appeal. Petitioner requested a writ ordering the superior court to transfer all records necessary to complete the record on appeal. b. On August 7, 1989, petitioner filed a motion for summary vacatur of his conviction, arguing that he had been prejudiced by the delay in obtaining transcripts for his appeal. (Pet. App. B.) c. On August 22, 1989, petitioner filed a motion in the court of appeals for disqualification of his appellate counsel and for appointment of new counsel. (Pet. App. E2-E5.) 3.a. On August 28, 1989, the court of appeals denied the petition for a writ of mandamus but ordered counsel for petitioner to file a written report within ten days on the status of the preparation and transfer of the transcripts for the pending appeal. (Pet. App. C.) b. Counsel for petitioner filed such a report on September 6, 1989. According to the report, the transcripts had not been prepared because the division of the superior court responsible for preparing them had not received authorization to do so, which authorization normally occurs upon the division's receipt of Criminal Justice Act vouchers from the superior court judge. Counsel also reported that he had filed the documents necessary for transcript preparation. (Pet. App. D1-D7.) c. Counsel for petitioner submitted another report on the status of the transcripts on October 31, 1989. The second report indicated that preparation of some of the transcripts had begun. (Pet. App. D8-D9.) 4. On December 14, 1989, the court of appeals denied petitioner's motion of August 22 to disqualify counsel and his motion of August 7 for summary vacatur of his convictions. (Pet. App. E1.) 5. On March 22, 1990, petitioner filed in the court of appeals a motion for an emergency court order, and on May 7, 1990, he filed a motion for reconsideration of the court of appeals' orders of August 28 and December 14, 1989. (Pet. App. F1-F6.) The court denied these motions in an order dated August 16, 1990. 6. According to the records of the District of Columbia Court of Appeals, that court has now received all transcripts necessary to completion of the record on appeal in the collateral review proceeding. The records further indicate that the court of appeals will issue a briefing schedule shortly. ARGUMENT Petitioner seeks an extraordinary writ ordering two forms of relief: (1) directing the superior court to complete transfer of the record for his appeal from that court's order denying his motion for post-conviction relief; and (2) directing the court of appeals to grant summary vacatur of his convictions. Petitioner cannot show that either form of relief will be in aid of the Court's appellate jurisdiction, that there are present exceptional circumstances warranting the exercise of the Court's discretionary powers, and that adequate relief cannot be obtained in any other form or from any other court. Rule 20.1 of the Rules of this Court. The petition should therefore be denied. 1. The request regarding completion of the record is moot. We are informed that the record on appeal is now complete and that a briefing order is forthcoming. The writ sought by petitioner would, in this respect, merely order what has already been accomplished. 2. Until the court of appeals enters a final judgment, petitioner's request for summary vacatur of his convictions is premature. If the court of appeals reverses the superior court's denial of petitioner's motion to withdraw his guilty plea, petitioner may seek summary vacatur on remand. See, e.g., United States v. Alston, 412 A.2d 351 (D.C. 1980) (en banc). If the court of appeals sustains the lower court's ruling, petitioner may seek review of the court of appeals' decision by petitioning this Court for certiorari. Swain v. Pressley, 430 U.S. 372, 382 n.16 (1977); 28 U.S.C. 1257. In short, regardless of the outcome of the pending appeal, petitioner's arguments regarding delay in the appeal process will be preserved. For this reason, petitioner cannot show that the relief now sought "cannot be obtained in any other form." Rule 20.1 of the Rules of this Court. Moreover, the outcome of the pending appeal may well influence consideration of petitioner's argument regarding delay. Specifically, affirmance by the court of appeals of the superior court's denial of post-conviction relief will cast serious doubt on petitioner's contention (Pet. 2) that he has been prejudiced by the delay in processing his appeal. See United States v. Lovasco, 431 U.S. 783, 789-790 (1977); United States v. Marion, 404 U.S. 307, 325 (1971); United States v. Loud Hawk, 816 F.2d 1323, 1324 (9th Cir. 1987); Alston, supra, 412 A.2d at 357. Furthermore, it is at least arguable that the amount of time required for the court of appeals to reach a decision should be taken into account when evaluating petitioner's contentions. Cf. id. at 359-361. In sum, a final judgment in the pending appeal is a prerequisite to any further review of petitioner's contentions regarding allegedly prejudicial delay on appeal. The concern for thorough and orderly review, among other considerations, underlies the principle that mandamus does not lie to review an interlocutory order that can be reviewed by appeal or certiorari after final judgment. Ex parte Roe, 234 U.S. 70, 72-73 (1914); R. Stern, E. Gressman & S. Shapiro, Supreme Court Practice 502 (6th ed. 1986) ("Orders which are not appealable by reason of their interlocutory nature or otherwise may not ordinarily be reviewed through any of the extraordinary writs * * *"). This principle requires denial of petitions for extraordinary writs even though hardship "may be imposed on parties who are compelled to await the correction of an alleged error at an interlocutory stage by an appeal from a final judgment." United States Alkali Export Association v. United States, 325 U.S. 196, 202 (1945). This principle applies with full force in this case and requires denial of the petition. CONCLUSION The petition for a writ of prohibition and/or mandamus should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General EDWARD S.G. DENNIS, JR. Assistant Attorney General KATHLEEN A. FELTON Attorney AUGUST 1990 /1/ Petitioner was sentenced to terms of: 10 to 30 years on each of the two counts of rape; one year on the first count of assault with intent to commit rape; five to fifteen years on the second count of assault with intent to commit rape; one year for attempted rape; five to fifteen years on each of the two counts of first-degree burglary; two to ten years for robbery; and one to three years for attempted robbery. The sentences are to run consecutively. /2/ D.C. Code 23-110 establishes a procedure for collateral review of convictions in the superior court comparable to that authorized by 28 U.S.C. 2255 for the United States district courts. Swain v. Pressley, 430 U.S. 372, 375 (1977). Subsection (a) of 23-110 provides in relevant part: A prisoner in custody under sentence of the Superior Court claiming the right to be released upon the ground that (1) the sentence was imposed in violation of the Constitution of the United States or the laws of the District of Columbia, * * * (4) the sentence is otherwise subject to collateral attack, may move the court to vacate, set aside, or correct the sentence. See also D.C. Super. Ct. Crim. R. 32(e), which provides: A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the Court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.