Hakeem v. Beyer

• Decision Date: 31 March 1993
• Docket Number: 91-5884,Nos. 91-5848,No. 91-5884,No. 91-5848,91-5848,s. 91-5848
• Citation: 990 F.2d 750
• Parties: Ali Abdul-Habib HAKEEM a/k/a Thomas Wooten v. Howard L. BEYER; Attorney General of the State of New Jersey, Howard L. Beyer, Superintendent, and Robert J. Del Tufo, Attorney General of the State of New Jersey, Appellants inAli Abdul-Habib Hakeem, Appellant in
• Court: U.S. Court of Appeals — Third Circuit

Page 750

990 F.2d 750

Ali Abdul-Habib HAKEEM a/k/a Thomas Wooten v. Howard L. BEYER; Attorney General of the State of New Jersey, Howard L. Beyer, Superintendent, and Robert J. Del Tufo, Attorney General of the State of New Jersey Appellants in No. 91-5848 Ali Abdul-Habib Hakeem, Appellant in No. 91-5884.

Nos. 91-5848, 91-5884.

United States Court of Appeals Third Circuit.

Argued Sept. 21, 1992.

Decided March 31, 1993.

James A. Plaisted (argued), Judith A. Hartz, Walder, Sondak, Berkeley & Brogan, P.A., Roseland, NJ, for Ali Abdul-Habib Hakeem.

Robert J. Del Tufo, Atty. Gen., of NJ, Mark P. Cronin (argued), Office of Atty. Gen., Div. of Crim. Justice, Appellate Bureau, Trenton, NJ, for Howard L. Beyer, Superintendent, and Robert J. Del Tufo, Atty. Gen. of State of NJ.

Present: HUTCHINSON, ALITO and SEITZ, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellants Howard Beyer, the Superintendent of Trenton State Prison, and Robert Del Tufo, the Attorney General of New Jersey, appeal an order of the United States District Court for the District of New Jersey granting Ali Abdul-Habib Hakeem's (Hakeem) ¹ petition for a writ of habeas corpus. The district court based its order on a holding that a fourteen and one-half month delay in bringing Hakeem to trial it found attributable to the negligence of the state violated the Speedy Trial Clause of the Sixth Amendment to the United States Constitution. Hakeem cross-appeals rulings of the district court rejecting the other grounds he asserted as a basis for habeas relief.

The district court had jurisdiction over Hakeem's petition pursuant to 28 U.S.C.A. § 2254 (West 1977). We have appellate jurisdiction pursuant to 28 U.S.C.A. § 2253 (West 1971) and 28 U.S.C.A. § 1291 (West Supp.1992).

We will affirm the district court on the issues that are the subject of Hakeem's cross-appeal and, therefore, deny Hakeem appellate relief on that cross-appeal docketed at our No. 91-5884. Except for the double jeopardy issue Hakeem raises on his cross-appeal, we do so essentially for the reasons set forth in the district court's opinion. See Hakeem v. Beyer, 774 F.Supp. 276 (D.N.J.1991). ² On the double jeopardy issue, we set forth our reasoning, which differs somewhat from that of the district court, in Part III of this opinion infra.

On the state's appeal at No. 91-5848, we will vacate the district court's order granting Hakeem a writ of habeas corpus on his claim that the state violated his Sixth Amendment right to a speedy trial and remand the case to it for an evidentiary hearing on the cause of the delay. With respect to the cause of the delay we hold that the district court properly disregarded the presumption of correctness that attaches to a finding of fact of a state court under 28 U.S.C.A. § 2254(d) because the state court's finding was not fairly supported by the record as required by § 2254(d)(8). In situations where a state court's finding of fact is not fairly supported by the record, Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), requires the district court to hold a hearing to resolve those material facts that are in dispute. The district court failed to do this with respect to the cause of the delay, a material fact that is genuinely in dispute on the state record in this case. Accordingly we will remand for an evidentiary hearing on the cause of the delay.

Resolution of the speedy trial issue also requires a balancing of the factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), based on appropriate findings of fact and that balancing is a matter for the district court in the first instance. On the record before us, however, we disagree with the district court's decision on which side of the balance some of the factors should be placed and also, to some extent, with the weight it afforded to those factors that go on Hakeem's side. Specifically, we agree with the district court that a fourteen and one-half month delay triggers a Barker inquiry. We also agree with the district court that Hakeem has demonstrated no cognizable prejudice beyond that which is inherent in the fourteen and one-half month delay in bringing him to trial, but we disagree with the district court's conclusion that this delay of itself places the factor of prejudice on Hakeem's side of the balance. We also hold, in partial disagreement with the district court, that Hakeem's assertion of his right to a speedy trial weighs only slightly in his favor.

I.

Between August 14, 1983 and November 3, 1983, the Neighborhood Market Grocery Store (the "Market") located in Newark, New Jersey was robbed four times. On August 14, 1983, three individuals, one armed with a revolver, stole over $100.00. At trial, Elois Johnson (Johnson), the owner, and Joseph Hankerson (Hankerson), a store employee, identified Hakeem as the armed perpetrator. On September 14, 1983, two males again robbed the Market, taking over $100.00. Johnson stated to the police that one of the individuals had robbed his store one month earlier. On October 16, 1983, approximately $200.00 was taken and Johnson informed the police that he believed the same individual was involved in this robbery as well.

The particular robbery that gives rise to this appeal occurred on November 3, 1983. On that day, at approximately 2:50 p.m., three individuals, one armed with a sawed-off shotgun and another with a .38 caliber revolver, entered the Market. They forced Johnson and Hankerson to the back of the store, demanded money and left with between $300.00 and $400.00 in cash and some food stamps contained in a red pouch. Johnson and Hankerson gave the police a description of the robbers and their getaway car. Another witness supplied the police with the car's license number. After the plate was traced to an Oldsmobile owned by Bennie Roberts of Newark, New Jersey, the police established surveillance around Roberts' home.

At approximately 3:35 p.m., police officers stopped a black Oldsmobile fitting the witness's general description of the getaway car. They ordered the three black, male occupants out of the car at gunpoint and frisked them but found no concealed weapons. A search of the car, however, uncovered a loaded 13-gauge sawed-off shotgun partially hidden by a blanket on the rear floor, near where Hakeem had been sitting. The search of the car also revealed a .38 caliber revolver loaded with six hollow-point bullets, four shotgun shells and a red pouch. The driver, Bernie Roberts, and his passengers Mubaarek Hayy (Hayy) and Hakeem were at once arrested.

The police officers placed the three suspects in the back of a patrol car and brought them to the Market for identification. Hankerson and Johnson came outside to view the suspects individually. Both identified Hakeem as one of the robbers. Hakeem was taken to the station house for processing. There, a search of his person produced $15.10 in currency and some food stamps.

At trial, Hakeem vigorously proclaimed his innocence. He stated that just before the robbery he had been visiting his sick father and had then stopped by the offices of the Newark Department of Sanitation to seek employment. There he alleges he spoke with two receptionists. In pretrial interviews that occurred about fourteen months after the alleged visit, the receptionists were unable to corroborate Hakeem's alibi. They were not called at trial. Hakeem's father died prior to trial, in March of 1984.

Hakeem testified he accepted a ride with the two other suspects after he stopped at the Sanitation Department, but knew nothing of the robbery and had never seen the weapons found in the car. He also denied involvement in any of the other robberies and challenged Johnson's identification outside the Market.

On February 7, 1984, a grand jury returned a nine count indictment against Hakeem in connection with the four robberies of the Market. Counts I through III involved the three robberies that occurred before November 3, 1983. The remaining six counts stemmed from the November 3, 1983 robbery of the Market.

On March 7, 1984, Hakeem entered a plea of not guilty to all charges. By a letter dated April 5, 1984 and addressed only to "Honorable Sir," Hakeem complained of excessive bail and that he had not yet been afforded discovery. The letter was forwarded to a state court judge who acknowledged the letter on April 12 and informed Hakeem by form letter that the court was "[f]orwarding a copy to your attorney with instructions to see you immediately and take any required action." Joint Appendix (App.) at 244.

Hakeem asserts that he never met his first appointed defense attorney. He claims he informed his second appointed defender about his alibi on March 23, 1984 but, despite his own repeated requests and the letters forwarded to her by the state judge, she made no attempt to contact his alibi witnesses. Hakeem also expressed dissatisfaction with this defender in a letter to the office of the state public defender in which he asked for the appointment of someone else. That request was refused. Two weeks before trial, Hakeem discharged this second appointed counsel and retained a private attorney. His privately retained counsel then interviewed the two Sanitation Department receptionists and learned they were unable to corroborate Hakeem's story.

In the meantime, on May 5, 1984, Hakeem had presented another pro se request to the state judge seeking dismissal of the charges against him because of unnecessary delay. No other party was served. On May 7, 1984, the state judge acknowledged this second communication from Hakeem and informed him that it too would be forwarded to his counsel. On October 16, 1984, Hakeem claims he executed yet another pro se motion requesting dismissal of the indictment based upon failure to prosecute the case within 180 days of the indictment. Although the record contains a copy of this motion, the prosecutor...