¶1(specially concurring).
¶2There was no evidence produced — and there is nothing in the record reflecting the basis for Judge Kean’s finding “... that there are no issues of merit upon which to base a hearing for a writ of habeas corpus.” The “Order Denying Petitioner’s Request for Habeas Corpus” is based solely upon “Pursuant to the letter of petitioner’s counsel” the “request” is “DENIED in all respects.”
¶3Post conviction counsel sat on this case for 2¾⅛ years and then wrote a “no-merit” letter to Judge Kean. During this 2V2 year hiatus, there was no action taken by the judiciary of this state, nor post conviction counsel, to hold a hearing on the writ of habeas corpus.
¶4During this 2½ year period, appointed counsel, who ended up arguing against his client's position, should have notified his client to (1) proceed pro se or (2) secure different counsel. Evitts v. Lucey, 469 U.S. 387, 400, 105 S.Ct. 830, 838, 83 L.Ed.2d 821 (1985); Ross v. Moffitt, 417 U.S. 600, 609, 94 S.Ct. 2437, 2443, 41 L.Ed.2d 341 (1974); and Suggs v. United States, 129 U.S.App.D.C. 133, 136, 391 F.2d 971, 974 (1968). It only makes common sense.
¶5Finally, petitioner alleges, and there is no refutation of same, that during this 2½ year period, post conviction counsel talked to his client for a period of approximately 10 minutes. I cannot sustain such procedure. It is fundamentally unfair and hence violates due process, namely a meaningful opportunity to be heard in a meaningful manner. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).