Hill v. Wainwright
| Decision Date | 05 May 1980 |
| Docket Number | No. 79-1038,79-1038 |
| Citation | 617 F.2d 375 |
| Parties | Paul Clifford HILL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, etc., Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard P. Condon, Ellen M. Condon, Tampa, Fla., for petitioner-appellant.
Michael A. Palecki, Tampa, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before TUTTLE, BROWN, and TATE, Circuit Judges.
The petitioner, having exhausted his available state remedies, seeks federal habeas corpus pursuant to 28 U.S.C. § 2254 to invalidate his Florida robbery conviction and sentence to life imprisonment. The petitioner asserts three claims for habeas corpus relief: (1) denial of his right to a speedy trial; (2) failure of the prosecution to disclose evidence favorable to the defense; and (3) denial of effective assistance of counsel. The federal district court after an evidentiary hearing dismissed the habeas petition on the merits. We find no merit in any of the petitioner's claims and, consequently, affirm.
The most substantial issue concerns the petitioner's claim that his constitutional right to a speedy trial was violated by the state's failure to try him after his arrest in February, 1969 until June 3, 1971, despite his alleged repeated requests for an earlier trial.
We have attached as an appendix to this opinion a detailed chronology which both parties accept as accurate. It shows, relevantly to our decision of this appeal, that following the Florida robbery of June, 1968, the petitioner Hill could not be located until he was arrested in Illinois for an unrelated crime in February, 1969. On March 11, 1969, he was sentenced to a 10-15 year sentence on the Illinois charges. We are cited to no reason that Florida could have moved to try him before that date, at the earliest.
On June 19, 1969, a Florida warrant was transmitted to the warden in Illinois. Thereafter (August 12, September 18, and September 29), the petitioner wrote various officials in Florida requesting a speedy trial. The last of these requests was referred to the State's Attorney for the County, who eleven days later wrote Hill advising him to contact the Public Defender for a speedy trial.
On November 6, 1969, a motion was filed in Florida state court by the petitioner not for an immediate trial but to dismiss the Florida robbery charge for want of prosecution. (This motion was thus filed less than three months after the petitioner had first requested a trial on the Florida charges, which request was itself made less than five months after the arrest.) Thereafter, as will be shown more fully below, the petitioner consistently sought from appellate courts, not a speedy trial, but solely the dismissal of the charges against him (for the alleged failure to try him some time after March 11, 1969, 1 when he was convicted in Illinois, and November 6, 1969, when he filed his motion to dismiss the charges against him.) These petitions were filed on March 27, 1970 and September 30, 1970 to the Florida Supreme Court, and on December 16, 1970, to the United States Supreme Ultimately, a central reason for our holding that the defendant's speedy trial rights were not violated is that the delay of the state in bringing him to trial between November 6, 1969, and April 19, 1971, was occasioned by his own pleadings and reiterated appellate petitions insisting, not that he be tried, but that he be not tried and that instead the charges be dismissed.
Court. When the latter tribunal denied certiorari on April 19, 1971, Hill's trial was held on June 3, 1971, within seven weeks of the denial.
Hill suggests that, since no stay had been issued, the state should have proceeded to try him, despite his strenuous contentions that it no longer had any constitutional right to do so. It is, at best, a dubious proposition that, over his protest, the state could have insisted on trying him despite the pendency of proceedings in an appellate court urging that the state had no constitutional right to subject him to trial but, instead, must dismiss the charges. Cf. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The state's position, thus, is that Hill, instead of attempting to obtain a speedy trial, was attempting to construct a technical speedy-trial defense to avoid a trial and conviction. Moreover, despite the state's sluggish response to Hill's earlier requests for trial (which were misdirected by him to state officials other than the local prosecutor), the state was thereafter responsive when Hill (contrary to his stance in a then pending Florida Supreme Court petition) indicated a desire for trial. When Hill wrote the local prosecution on November 21, 1970 requesting an immediate trial, extradition proceedings were commenced within two weeks (twelve days later Hill filed a petition for certiorari with the United States Supreme Court requesting dismissal of the Florida warrant for want of prosecution), and the state set the charge for trial on March 23, 1971 seven weeks after Hill was returned to Florida on January 31. This trial was continued, on Hill's motion of March 17 to stay his trial pending decision by the United States Supreme Court on his petition for certiorari. As noted, trial was commenced on June 3, soon after the high Court denied certiorari on April 19.
The petitioner contends that his constitutional right to a speedy trial was denied by the State of Florida because of the nearly three year delay (two years eleven months and one week) between the original arrest warrant and his trial.
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ." The Sixth Amendment guarantee of a speedy trial prevents undue and oppressive incarceration prior to trial, minimizes anxiety and concern accompanying public accusation, and limits the possibilities that long delay will impair the ability of an accused to defend himself. United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966). The right to a speedy trial has been held applicable to the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
In resolving a speedy trial claim, the courts usually employ the balancing process enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Barker directs a court faced with a speedy trial issue to weigh factors that include the following: (a) the length of delay; (b) the reason for delay; (c) the defendant's assertions of his right; and (d) the prejudice to the defendant. On the present facts, we conclude that the State of Florida tried Hill promptly enough, and that the "unsatisfactorily severe remedy of dismissal" is not appropriate in this case. Id. at 522, 92 S.Ct. at 2188.
The period of delay starts when a person is accused of a crime and ends when the trial begins. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). The arrest, if prior to the indictment This petitioner became an accused and his right to a speedy trial was therefore activated on June 26, 1968 when the arrest warrant was issued. Here the delay of nearly three years serves as a "triggering mechanism" to invoke further analysis. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192.
constitutes the initiation of a prosecution for purposes of applying the Barker speedy trial test. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975).
Closely related to the length of delay is the reason the government assigns to justify the delay. If the postponement is occasioned by the actions of the accused himself, the delay (or any relevant portion of it) may be excused. United States v. Herman, 576 F.2d 1139, 1145 (5th Cir. 1978); Torres v. Florida, 477 F.2d 555, 556 (5th Cir. 1973).
There are varying reasons for the delays between arrest and trial in this case. We conclude that more than two years of the delay is attributable to the petitioner. The state could not, at most, be charged for more than seven to nine months of the delay.
The period of delay between June 26, 1978 and February 7, 1969, approximately seven and one-half months, should not be charged against the government since Hill was at large during that period. United States v. Walters, 591 F.2d 1195, 1202 (5th Cir. 1979). Cf. 18 U.S.C. § 3161(h)(3)(A) (Speedy Trial Act of 1974) (period of delay resulting from absence or unavailability of defendant is not included in computing time within which information or indictment must be filed.) Further, while Illinois was holding the accused for trial on Illinois charges between February 7 (arrest) and March 11, 1969 (sentence), there was little Florida could do to bring Hill to trial.
Hill initiated actions seeking to dismiss the prosecution for want of prosecution and denial of a speedy trial as early as November 6, 1969 by filing a motion to dismiss in the Florida trial court. After that motion was denied, petitioner twice sought writs of mandamus from the Florida Supreme Court directing the dismissal of the charges for want of prosecution because of the denial of a speedy trial. 2 When those efforts likewise failed, the petitioner filed a certiorari petition in the United States Supreme Court (again requesting dismissal of the charges) that was eventually denied on April 19, 1971. 3 Following the denial of the certiorari petition, the state brought the petitioner to trial within seven weeks.
The appellate delay occasioned by petitioner's various legal initiatives should not
be attributed to the state. Moreover, the state was not unreasonable in choosing not to try petitioner while these motions to dismiss were pending. This...
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