IN THE CASE OF 

Jeffrey G. Toohey, Staff Sergeant 

United States Marine Corps, Petitioner 

v. 

UNITED STATES, Respondent 

No. 04-8019/MC 

Crim. App. No. 200001621 

United States Court of Appeals for the Armed Forces

Decided July 2, 2004 

Counsel

For Petitioner: Pro Se. 

For Respondent: Lieutenant Frank L. Gatto, JAGC, USNR, and 

Commander R. P. Taishoff, JAGC, USN (on brief). 

 

 

 THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION. 
Toohey v. United States, No. 04-8019/MC 

2

PER CURIAM:

 This case involves a request for extraordinary relief 

because of lengthy appellate delay. Petitioner is confined as 

the result of a general court-martial conviction for rape and 

assault. His trial concluded on August 13, 1998. He has 

challenged his conviction and sentence in his direct appeal to 

the Navy-Marine Corps Court of Criminal Appeals. However, 

almost six years after his conviction, Petitioner’s first-level 

appeal as of right remains unresolved. 

BACKGROUND 

 A general court-martial found Petitioner guilty of one 

specification of rape and one specification of assault in 

violation of Articles 120 and 128 of the Uniform Code of 

Military Justice.1

 The court-martial was first called to order 

on May 21, 1998, and adjourned on August 13, 1998. The members 

sentenced Petitioner to confinement for 12 years, reduction 

to pay-grade E-1, forfeiture of all pay and allowances, and a 

dishonorable discharge. The convening authority approved the 

sentence as adjudged and, with the exception of the dishonorable 

discharge, ordered it executed. 

 

1

 10 U.S.C. §§ 920, 928 (1994). 
Toohey v. United States, No. 04-8019/MC 

3

 The filings in this case establish the following 

chronology: 

 Days Total 

 Elapsed Days Since 

 Between Sentence 

Date Event Events Adjudged 

 

 

Aug. 13, 1998 Sentence adjudged -- -- 

 and court-martial 

 adjourned 

Apr. 29, 1999 Record of trial 259 259 

 examined by trial 

 counsel 

June 28, 1999 Military judge 60 319 

 authorizes substitute 

 authentication 

Sep. 28, 1999 Record of trial served 92 411 

 on defense counsel 

Oct. 24, 1999 Staff judge advocate’s 26 437 

 recommendation served on 

 defense counsel 

Oct. 28, 1999 Defense submits Rule for 4 441 

 Courts-Martial 1105 

 clemency petition 

Nov. 24, 1999 Defense submits 27 468 

 response to staff judge 

 advocate’s recommendation 

May 15, 2000 Addendum staff judge 173 641 

 advocate’s 

 recommendation published 

May 18, 2000 Convening authority acts 3 644 

Sep. 20, 2000 Petitioner requests 125 769 

 correction of alleged 

 post-trial processing 

 errors 
Toohey v. United States, No. 04-8019/MC 

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Oct. 11, 2000 Navy-Marine Corps 21 790 

 Appellate Review Activity 

 receives record of trial 

Oct. 26, 2000 Navy-Marine Corps Court 15 805 

 of Criminal Appeals (NMCCA) 

 dockets appeal 

Feb. 14, 2001 Defense files motion 111 916 

 for appropriate relief 

 based on post-trial delay 

Mar. 28, 2002 Petitioner’s brief filed 407 1323 

 at NMCCA 

Dec. 6, 2002 Government’s brief filed 253 1576 

 at NMCCA 

Feb. 6, 2003 Petitioner’s reply brief 62 1638 

 filed at NMCCA 

Feb. 11, 2003 Case submitted to Panel 5 1643 

 3 of NMCCA 

Jan. 13, 2004 Petitioner files motion 336 1979 

 for appropriate relief 

 due to appellate delay 

Jan. 29, 2004 NMCCA denied motion for 16 1995 

 appropriate relief 

July 2, 2004 This opinion issued -- 2150 

The transcript of Petitioner’s court-martial consists of 943 

pages. The complete record of trial is spread over eleven 

volumes. 

 This chronology demonstrates that Petitioner has not 

received his first level appeal as of right more than five years 

and ten months after he was sentenced. It also demonstrates 

that more than three years and eight months have passed since 
Toohey v. United States, No. 04-8019/MC 

5

the Navy-Marine Corps Appellate Review Activity received his 

case. 

DISCUSSION 

 As we noted last term, “[t]his Court has long recognized 

that an accused has the right to a timely review of his or her 

findings and sentence.”2

 This includes a right to a reasonably 

timely convening authority’s action,3

 the reasonably prompt 

forwarding of the record of trial to the service’s appellate 

authorities,4

 and reasonably timely consideration by the military 

appellate courts. In this case, lengthy delay occurred at each 

of those three stages, producing an on-going aggregate delay of 

almost six years. 

 The right to timely appellate review has both statutory and 

constitutional roots. A military appellant’s “right to a full 

and fair review of his findings and sentence under Article 66 

embodies a concomitant right to have that review conducted in a 

timely fashion.”5

 We have observed that the Courts of Criminal 

 

2 Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 

(C.A.A.F. 2003). 

3

 See United States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001) 

("Appellant has a right to a speedy post-trial review of his 

case."). 

4

 See United States v. Dunbar, 31 M.J. 70, 73 (C.M.A. 1990) 

(calling delay in forwarding the record of trial to the 

appellate court “the least defensible of all” post-trial delay). 

5 Diaz, 59 M.J. at 37-38. 
Toohey v. United States, No. 04-8019/MC 

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Appeals’ unique powers and responsibilities “call[] for, if 

anything, even greater diligence and timeliness than is found in 

the civilian system.”6 Additionally, the Due Process Clause 

guarantees “a constitutional right to a timely review.”7 

 Other federal appellate courts have similarly recognized a 

due process right to a reasonably timely appeal.8 The United 

States Court of Appeals for the Sixth Circuit has bluntly 

articulated the rationale for protecting against unreasonable 

appellate delay: “An appeal that needlessly takes ten years to 

adjudicate is undoubtedly of little use to a defendant who has 

been wrongly incarcerated on a ten-year sentence.”9 In its 

brief, the Government expressly acknowledges that the “Due 

Process Clause guarantees the right to a timely appellate review 

of a court-martial.” 

 Federal courts generally consider four factors to determine 

whether appellate delay violates an appellant’s due process 

 

6

 Id. at 39. 

7 Id. at 38. 

8

 See generally Campiti v. Matesanz, 186 F. Supp. 2d 29, 43 (D. 

Mass. 2002)(“Although the Supreme Court has not addressed 

appellate delay in the due process context, seven of the Courts 

of Appeals have held that an appellate delay may constitute a 

due process violation under some circumstances.”), aff’d, 333 

F.3d 317 (1st Cir.), cert. denied, 124 S. Ct. 346 (2003). 

9

 United States v. Smith, 94 F.3d 204, 207 (6th Cir. 1996). 
Toohey v. United States, No. 04-8019/MC 

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rights: (1) length of the delay; (2) reasons for the delay; (3) 

the appellant’s assertion of his right to a timely appeal; and 

(4) prejudice to the appellant.10 These factors are derived from 

the Supreme Court’s speedy trial analysis in Barker v. Wingo.11

 The first factor’s “length of delay” calculation includes 

time caused by “failures of []appointed counsel and delays by 

the court” itself.12 The “length of delay” factor plays two 

roles. “First, the ‘length of the delay is to some extent a 

triggering mechanism,’ and unless there is a period of delay 

that appears, on its face, to be unreasonable under the 

circumstances, ‘there is no necessity for inquiry into the other 

factors that go into the balance.’”13 “Second, if the 

constitutional inquiry has been triggered, the length of delay 

is itself balanced with the other factors and may, in extreme 

 

10 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. 1981); United 

States v. Johnson, 732 F.2d 379, 381-82 (4th Cir. 1980). 

11 407 U.S. 514, 530 (1972). 

12 Simmons v. Beyer, 44 F.3d 1160, 1170 (2d Cir. 1995) (quoting 

Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990)). See also

Taylor v. Hargett, 27 F.3d 483, 486 n.2 (10th Cir. 1994) 

(attributing to the state the time during which the Oklahoma 

Court of Criminal Appeals deliberated on the case). 

13 Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530). 
Toohey v. United States, No. 04-8019/MC 

8

circumstances, give rise to a strong ‘presumption of evidentiary 

prejudice’ affecting the fourth Barker factor.”14 

The first step in evaluating appellate delay is to 

determine whether the “length of delay” triggering mechanism has 

been pulled. This, in turn, requires us to consider a threshold 

question: How much delay is too much? The Tenth Circuit has 

adopted “a presumption of inordinate delay” upon “a two-year 

delay in finally adjudicating a direct criminal appeal.”15 

“[M]ost courts evaluating such delay,” however, “apply the first 

factor on a case-by-case basis.”16 Many factors can affect the 

reasonableness of appellate delay. These include not only such 

universal concerns as length of the record and complexity of the 

issues, but also military-unique considerations such as 

operational commitments that may delay transmission of the 

record to the Court of Criminal Appeals. These variables 

convince us that “there is no talismanic number of years or 

months [of appellate delay] after which due process is 

automatically violated.”17 Whether appellate delay satisfies the 

first criterion is best determined on a case-by-case basis. 

 

14 Id. at 209 (quoting Doggett v. United States, 505 U.S. 647, 

657 (1992)). 

15 Harris v. Champion, 15 F.3d 1538, 1560 (10th Cir. 1994). 

16 Smith, 94 F.3d at 209. 

17 Coe, 922 F.2d at 531. 
Toohey v. United States, No. 04-8019/MC 

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 In this case, Petitioner has made a threshold showing of “a 

period of delay that appears, on its face, to be unreasonable 

under the circumstances.”18 Without analyzing the timeliness of 

each step that has occurred since Petitioner’s court-martial 

ended in August 1998, the aggregate delay facially appears to be 

unreasonable, even for this serious contested case. This 

conclusion is consistent with civilian cases holding that six

years of appellate delay in non-capital felony cases satisfies 

the “length of delay” criterion, thereby requiring a full due 

process analysis.19 We are further convinced that this case 

presents a prima facie case regarding length of delay because 

the Government has not attempted to defend the pace of 

Petitioner’s appeal. 

 Concluding that the aggregate delay in this case appears 

facially unreasonable, however, is merely the beginning of the 

due process analysis. The optimal resolution of this petition 

for extraordinary relief is to provide the Navy-Marine Corps 

Court, in the first instance, with the task of evaluating the 

four appellate delay factors to determine whether a due process 

 

18 Smith, 94 F.3d at 208-09 (quoting Barker, 407 U.S. at 530). 

19 See, e.g., Simmons v. Reynolds, 898 F.2d at 868; Mathis v. 

Hood, 937 F.2d 790, 794 (2d Cir. 1991). 
Toohey v. United States, No. 04-8019/MC 

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violation has occurred and, if so, to determine an appropriate 

remedy. 

 Allowing the Navy-Marine Corps Court to perform this task 

is appropriate for at least two reasons. First, the information 

available to us in this extraordinary relief litigation is 

sparse. While the filings in this Court establish the length of 

the delay and Petitioner’s repeated assertion of his right to a 

timely appeal, they shed little light on the reasons for the 

delay or the resulting prejudice to Petitioner. We have 

recognized that where important facts necessary to resolve an 

issue are unavailable, “a remand to establish a factual record 

normally [is] required.”20 

The Navy-Marine Corps Court possesses Petitioner’s record 

of trial, has access to the issues Petitioner has raised on 

appeal, and can evaluate the strength of those issues. That 

court is well-placed to make the initial determination of 

whether Petitioner’s due process rights have been violated. 

Additionally, if we were to order that the eleven-volume record 

and appellate papers be filed here for our own analysis of these 

factors, we would interfere with the very goal of this 

litigation: the prompt resolution of Petitioner’s case before 

the Navy-Marine Corps Court. 

 

20 United States v. Haney, 45 M.J. 447, 448 (C.A.A.F. 1996). 
Toohey v. United States, No. 04-8019/MC 

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 A second reason why we should allow the Navy-Marine Corps 

Court to resolve this issue arises from that court’s unique 

powers under Article 66(c). Prejudice is a clear requirement 

for an Article III court to provide relief for unreasonable 

post-trial delay.21 Our review involves a determination of 

whether a prejudicial error of law occurred. The Courts of 

Criminal Appeals, however, possess broader powers.22 They may 

issue relief upon a finding that lengthy delay following a 

court-martial conviction renders some portion of the findings or 

sentence inappropriate.23 Even if it finds that the delay in 

this case does not rise to the level of a prejudicial error of 

law--a matter about which we express no opinion--the Navy-Marine 

Corps Court has the authority to nevertheless conclude that some 

form of relief is appropriate. 

 

21 See, e.g., United States v. Luciano-Mosquera, 63 F.3d 1142, 

1158 (1st Cir. 1995) (holding that relief for appellate delay 

requires a showing of prejudice, such as a demonstration that 

the delay impaired the appeal or the defense in the event of 

retrial); Harris, 15 F.3d at 1563-64 (recognizing three typical 

forms of prejudice arising from appellate delay: (1) impairment 

of the grounds for appeal; (2) anxiety supported by a colorable 

state or federal claim that would warrant reversal of the 

conviction or a reduction of sentence; and (3) oppressive 

incarceration). 

22 See Art. 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). 

23 See generally United States v. Tardif, 57 M.J. 219 (C.A.A.F. 

2002). 
Toohey v. United States, No. 04-8019/MC 

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DECISION 

 We grant in part and deny in part the petition for 

extraordinary relief. We conclude that Petitioner has made a 

threshold showing of an appearance of facially unreasonable 

delay since the conclusion of his court-martial. We expect the 

Navy-Marine Corps Court of Criminal Appeals to use its best 

efforts to render a decision on Petitioner’s appeal without 

delay. In deciding Petitioner’s case, the Navy-Marine Corps 

Court will determine whether the lengthy delay in this 

case violated Petitioner’s Fifth Amendment right to due process. 

The court will also determine whether the lengthy delay in this 

case warrants some form of relief. 

 The portion of the petition for extraordinary relief 

requesting an order directing Petitioner’s release from 

confinement and deferral of his sentence, or alternatively 

directing confinement credit of not less than 24 months, is 

denied at this time. However, if the Navy-Marine Corps Court 

fails to issue a decision in this case within 90 days of this 

opinion, we invite Petitioner to notify us of that fact and seek 

further relief. 
Toohey v. United States, No. 04-8019/NA 

 CRAWFORD, Chief Judge (dissenting): 

 Petitioner has raised the issue of post-trial delay before 

the court below and that issue is currently pending before the 

Court of Criminal Appeals.1

 This Court abuses its authority and 

its writ jurisdiction by directing the lower court to rule, and 

suggesting how it should rule, on an issue that is already 

properly before it on direct review. For these reasons, I 

respectfully dissent. 

 The court below is well aware of this Court’s jurisprudence 

in the area of post-trial delay,2 and is quite capable of 

applying that jurisprudence to the facts of this case. It is 

most inappropriate for this Court to seek to influence the 

timetable and decision-making process of a lower court while 

that court is deliberating. A review of the docket of any 

appellate court would reveal that for understandable reasons, 

some cases take longer to decide than others. Further, the 

issue of post-trial delay in this case is not the proper subject 

of a writ. We should not abuse our writ jurisdiction by 

injecting this Court’s views on the substance of this issue into 

 

1

 IX. APPELLANT SUFFERED PREJUDICE DUE TO AN INORDINATE POSTTRIAL DELAY OF OVER 790 DAYS BETWEEN THE DATE OF TRIAL AND THE 

DATE THAT HIS CASE WAS FORWARDED TO THE NAVY-MARINE CORPS COURT 

OF CRIMINAL APPEALS FOR APPELLATE REVIEW. 

2

 United States v. Tardif, 57 M.J. 219 (C.A.A.F. 2002), a 3-2 

opinion with Crawford, C.J., and Sullivan, S.J., dissenting. 

Id. at 225, 228. 
Toohey v. United States, No. 04-8019/NA 

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the deliberations of the court below. This amounts to an 

affront to the judicial independence of the judges below by 

seeking to influence their deliberations in this case. If the 

Petitioner is not satisfied with the decision of the court 

below, he can appeal that decision in the normal course of 

review. 

 On August 13, 1998, contrary to his pleas, Petitioner was 

convicted, by a panel composed of officer and enlisted members, 

of rape and assault in violation of Articles 120 and 128, 

Uniform Code of Military Justice (UCMJ).3

 The members sentenced 

him to confinement for 12 years, forfeiture of all pay and 

allowances, reduction to the lowest enlisted grade, and a 

dishonorable discharge. On May 18, 2000, the convening 

authority approved the findings and sentence. 

 This Court has recognized its authority to (1) “issue all 

writs necessary or appropriate in aid” of its jurisdiction when 

(2) “agreeable to the usages and principle of law.”4

 Petitioner 

satisfies the first prong in relief of a jurisdiction when he 

establishes that this Court has potential jurisdiction over his 

appeal. However, he must also establish that the writ is 

“agreeable to usages and principles of law” by presenting 

 

3

 10 U.S.C. §§ 920 and 928 (2000). 

4

 United States v. Frischolz, 16 C.M.A. 150, 36 C.M.R. 306 

(1966). 
Toohey v. United States, No. 04-8019/NA 

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evidence that the exercise of jurisdiction would be consistent 

with judicial economy;5

 or that normal appellate review could not 

correct the illegality.6 There has been no showing of either in 

this case. Normal appellate review will suffice. 

 While the Supreme Court has not addressed the 

constitutional right to a speedy criminal appeal, “[t]his Court 

has long recognized” the right to a speedy post-trial review of 

the findings and sentence in a court-martial.7 This Court 

partially based the “constitutional right to a timely review 

guaranteed . . . [on] the Due Process Clause.”8 In Diaz, the 

number of cases pending before the Defense Appellate Division 

was noted. Now that backlog has shifted to the Court of 

Criminal Appeals. As the pleadings indicate, there are nearly 

275 cases fully briefed and pending before the Court of Criminal 

Appeals. Nearly 40 of these cases have been fully briefed and 

pending for over a year. This is not a case where counsel has 

not been appointed9

 or an instance where civilian counsel has 

 

5

 Murray v. Haldeman, 16 M.J. 74 (C.M.A. 1983). 

6

 See, e.g., Collier v. United States, 19 C.M.A. 511, 42 C.M.R. 

113 (1970). 

7

 Diaz v. Judge Advocate General of the Navy, 59 M.J. 34, 37 

(C.A.A.F. 2003). 

8

 Id. at 38. 

9

 Cf. Taylor v. Hargett, 27 F.3d 483 (10th Cir. 1994). 
Toohey v. United States, No. 04-8019/NA 

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been appointed and has not been diligently trying to ease 

his/her backlog.10 

 A number of federal courts have addressed the 

constitutional right to a speedy criminal appeal11 and have 

examined the four factors mentioned in the majority opinion. 

But this Court is not a factfinder and not in a position to 

determine whether there are reasonable or unreasonable delays in 

this case. Nor are we in a position to determine whether there 

has been “deliberate intent to harm the accused’s” rights to a 

speedy post-trial review versus “negligence or overcrowded 

courts.”12 Nor can we gather the post-trial information related 

to Petitioner’s confinement status and whether there is 

substantial prejudice. The court below is in a good position to 

evaluate “defendant’s acquiescence” in the delays that have 

taken place and evaluate whether Petitioner’s position to defend 

himself has been “impaired.”13 For these reasons I dissent and 

would deny the request for a writ. 

 

10 Cf. Simmons v. Beyer, 44 F.3d 1160 (3d Cir. 1995). 

11 See, e.g., Elcock v. Henderson, 28 F.3d 276, 279 (2d Cir. 

1994)(no violation of due process for eight-year delay between a 

conviction and appeal when no showing of actual prejudice); 

Heiser v. Ryan, 15 F.3d 299, 303-04 (3d Cir. 1994)(absent 

showing of prejudice, 13-year delay did not violate due 

process). 

12 Doggett v. United States, 505 U.S. 647, 658 (1992). 

13 Id. at 658 n.4.