659 F.2d 279 (1st Cir. 1981), 81-1154, Isaac v. Perrin

Docket Nº:81-1154.
Citation:659 F.2d 279
Party Name:Daniel P. ISAAC, Petitioner, Appellant, v. Everett I. PERRIN, et al., Respondents, Appellees.
Case Date:September 25, 1981
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 279

659 F.2d 279 (1st Cir. 1981)

Daniel P. ISAAC, Petitioner, Appellant,


Everett I. PERRIN, et al., Respondents, Appellees.

No. 81-1154.

United States Court of Appeals, First Circuit

September 25, 1981

Submitted Sept. 18, 1981.

Page 280

Eleanor Krasnow, Manchester, N. H., on brief for petitioner, appellant.

Gregory H. Smith, Atty. Gen., and Paul W. Hodes, Asst. Atty. Gen., Crim. Justice Div., Concord, N. H., on brief for respondents, appellees.

Before COFFIN, Chief Judge, CAMPBELL and BREYER, Circuit Judges.

COFFIN, Chief Judge.

Appellant appeals the federal district court's denial of his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 on the grounds that his constitutional right to a speedy trial was violated. Appellant was arrested on August 19, 1977, and arraigned in a New Hampshire state district court under N.H. RSA 632-A:2 for aggravated felonious sexual assault. Unable to

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meet bail, he was confined in the Hillsborough County Jail. Appearing with his court-appointed attorney on September 14, 1977, appellant waived his probable cause hearing and his case was turned over to the state superior court pursuant to the state's two-tiered criminal system. See N.H. RSA 596-A:7. A grand jury indictment was returned on October 4, and his arraignment was scheduled for November 2 in superior court. On that date, his attorney failed to appear and the court appointed a public defender to represent appellant. The public defender protested that his already heavy caseload would preclude him from trying appellant's case until the January 1978 term. The case was accordingly scheduled for February 15, 1978. Bail was continued, and appellant remained incarcerated in county jail.

The prosecutor was advised by letter of January 24, 1978, that the complaining witness, a nine year old girl residing in Indiana, was not yet emotionally prepared to testify in court. The child's psychologist recommended deposition testimony instead. The prosecutor sought a motion for a videotape deposition but this request was denied by a New Hampshire court. He then attempted to procure the girl's testimony pursuant to the Uniform Act to secure attendance of witnesses outside the state in criminal proceedings. N.H. RSA Chap. 613. An Indiana court denied this request and decided that the girl would not be available, pending psychiatric treatment, for three more months. The prosecutor accordingly sought a continuance in New Hampshire superior court on February 15, and appellant objected on speedy trial grounds. A hearing was held the same day, and the court granted a continuance until May 22, 1978. Bail was reduced to $500 but appellant was unable to meet this amount.

In early May, however, the court realized that a jury would not be available on May 22, and so notified appellant who suggested that the trial be moved forward to the week of May 9 when a jury was available. The trial was instead rescheduled for June 19, 1978. Appellant then moved to dismiss the case on speedy trial grounds; a hearing on that motion was held on June 2, and the court ruled that the motion would be granted if the trial was not held on June 19. The trial was held as scheduled, and appellant was found guilty, leading to his present incarceration in New Hampshire State Prison. After an unsuccessful appeal to the New Hampshire Supreme Court, appellant acquired new counsel and filed the present habeas corpus petition in federal court.

Appellant makes two arguments on appeal. First, he reasserts the claim made to the district court below and to the state courts that his Sixth Amendment right to a speedy trial was denied. Second, he alleges that the district court erred in denying his motion for a federal evidentiary hearing. Appellant argues strenuously that because the material facts were not adequately developed at the state court hearings, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), required the district court to hold a hearing to resolve the disputed factual issues. We hold that even if appellant's allegations with respect to the disputed material issues 1 are assumed to be true, his right to a speedy trial was not violated. An evidentiary hearing is therefore unnecessary. See, e. g., Jones v. Morris, 590 F.2d 684, 687 (7th Cir.), cert. denied, 440 U.S. 965, 99 S.Ct. 1513, 59 L.Ed.2d 780 (1979); Spinkellink v. Wainwright,

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578 F.2d 582, 590 (5th Cir. 1978), cert. denied, 440 U.S. 976, 99 S.Ct. 1548, 59 L.Ed.2d 796 (1979); Morris v. Wyrick, 516 F.2d 1387, 1392 (8th Cir.), cert. denied, 423 U.S. 925, 96 S.Ct. 268, 46 L.Ed.2d 251 (1975).

The Supreme Court has established a four-part balancing test to determine whether a defendant's constitutional right to a speedy trial has been violated. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The four factors are the length of the delay, the reasons for the delay, the nature of the defendant's assertion of his right to a speedy trial, and the prejudice caused to the defendant as a result of the delay. Id. at 530; see United States v. Johnson, 579 F.2d 122 (1st Cir. 1978).

"The length of the delay is to...

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