Howell v. Barker

Decision Date29 March 1988
Docket NumberNo. 86-1072-HC.,86-1072-HC.
Citation684 F. Supp. 132
CourtU.S. District Court — Eastern District of North Carolina
PartiesWilton HOWELL, Petitioner, v. W.R. BARKER, et al., Respondents.

Wilton Howell, pro se.

Gordon Widenhouse, Raleigh, N.C., for petitioner.

Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., for respondents.

ORDER

BRITT, Chief Judge.

On 8 March 1988 Magistrate Alexander B. Denson filed his memorandum and recommendation* in this petition for a writ of habeas corpus. From the recommendation that the writ be granted, respondents have timely filed objections. The court has fully considered the recommendation of Magistrate Denson and the objections thereto filed by respondents and is convinced that the well-reasoned analysis of Magistrate Denson is correct. Accordingly, the objections of respondents are overruled and the court adopts the recommendation of Magistrate Denson as its own.

The court does agree, however, that the remedy recommended by Magistrate Denson, though legal, appears to the court to be inappropriate. The court agrees with respondents that no reason is now apparent why petitioner would be prejudiced by a retrial.

The petition for writ of habeas corpus is, therefore, allowed, and a writ will issue.

MEMORANDUM AND RECOMMENDATION

ALEXANDER B. DENSON, United States Magistrate.

This case is now before the court on the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by the petitioner, a North Carolina prisoner. Respondents have filed an answer and have moved to have the petition dismissed. On December 29, 1986 petitioner acting pro se filed a memorandum of law in opposition to the respondents' motion to dismiss and on January 11, 1988 he filed a supplemental memorandum of law through his attorney, Gordon Widenhouse.1 Respondents made no filing in response to petitioner's supplemental filing and this matter is now ripe for ruling by this court. On October 12, 1982 in the Superior Court of Bladen County, Honorable Donald L. Smith, Judge Presiding, Petitioner was convicted of armed robbery following a trial by jury. Petitioner was then sentenced to a prison term of not less than nine nor more than forty years. Petitioner appealed his conviction to the North Carolina Court of Appeals which affirmed in an opinion filed April 17, 1984 and reported at 67 N.C.App. 763, 314 S.E. 2d 147. On October 11, 1984, Petitioner filed a motion for appropriate relief in the Superior Court of Bladen County which was denied by the Honorable B. Craig Ellis on February 20, 1985. Throughout the above mentioned proceedings, Petitioner was represented by Jack E. Carter of the Cumberland County Bar. However, Petitioner acting pro se sought appellate review of the denial of his motion for appropriate relief but certiorari was denied on December 19, 1985. Petitioner's January 6, 1986 pro se application for appropriate relief was denied on March 6, 1986 and Petitioner did not seek certiorari to review that denial.

On May 15, 1986, Petitioner sought a writ of habeas corpus from this court, but Petitioner's application was dismissed for non-exhaustion of state remedies on September 9, 1986 by the Honorable James C. Fox.

In the present petition, Petitioner contends that his constitutional rights have been violated because (1) he was denied a speedy trial, (2) he was not served with the arrest warrant until twenty-seven months after the warrant's issuance, (3) his due process rights were violated by the mishandling of the testimony of a state witness, and (4) his motion to suppress the prosecuting witness' identification of him was denied. The respondents inform the court that Petitioner has now exhausted as to all of his contentions presently before the court.

The question presented to the court by Petitioner is whether or not the time lapse between the issuance of the warrant for his arrest and the serving of that warrant violated either his constitutional right to due process or his constitutional right to a speedy trial where the prosecution (1) had completed its investigation of the alleged crime on the date of the issuance of the arrest warrant, (2) had known Petitioner was incarcerated in the jail of a neighboring county for approximately five months after the issuance of the arrest warrant and (3) should have known that Petitioner remained in the custody of the North Carolina Department of Correction for about another thirteen months after leaving the county jail.

The relevant facts are as summarized herein. In Bladen County on September 19, 1979, shortly after 2:30 p.m., Ruby Carlyle was robbed by two men in her grocery store at gun and knife point of the sum of One Thousand Dollars ($1,000.00). On October 31, 1979, Petitioner was being held on unrelated charges as a prisoner in the Robeson County jail and was visited and interrogated by Detective Phillip Little of the Bladen County Sheriff's Department. Later that night at the Robeson County jail Petitioner appeared before Ms. Carlyle in a police line-up. Ms. Carlyle then identified the Petitioner as a man who looked like one of the men who robbed her store. The next day, November 1, 1979, Detective Little sought a warrant for Petitioner's arrest which was issued by a county magistrate on the same day. Though Detective Little knew Petitioner was confined to the Robeson County jail, he neither served the warrant on Petitioner nor delivered it to Robeson County officials for them to serve. Likewise, with regard to the arrest warrant issued from Bladen County, no detainer against Petitioner was filed with the Robeson officials.

Petitioner remained in the Robeson County jail until sometime near the end of March 1980. Upon being released from the Robeson County jail, Petitioner was placed in the custody of the North Carolina Department of Correction and was paroled in April 1981. During Petitioner's period of incarceration, from the November 1, 1979 issuance of the warrant for his arrest until his parole in April 1981, Petitioner was not served with the Bladen warrant for his arrest and the record does not show that he ever knew of the warrant until it was actually served on February 4, 1982. In sum, Petitioner was not served with the arrest warrant until some twenty-seven months after the warrant had been issued, in spite of the fact that the respondents knew his exact whereabouts until the end of March 1980 and should have known of his where-abouts until his release from state custody in April 1981. At no time during the twenty-seven months in which the arrest warrant remained unserved did Petitioner try to avoid or escape respondents.

Petitioner claims that he was denied his rights to due process of law and a fair trial because of respondents' twenty-seven months delay in serving him with the warrant for his arrest. Petitioner complained that he was prejudiced by the pre-trial delay because his alibi witness and former employer, George Ray Hunt, had moved to Florida in the early part of 1980 and could not be located in time to testify at Petitioner's trial which was held on October 12, 1982. Petitioner's brother, Stacy Howell, at the request of Petitioner's attorney, had tried to determine Hunt's Florida location. Howell, asked Hunt's brother-in-law, Charlie Matamoros of Lumberton, about Hunt's whereabouts. Matamoros only knew that Ray Hunt was in Florida and he indicated to Petitioner's brother that he would inform him of Hunt's whereabouts if he could locate him. Stacy Howell did not know Hunt's mother and did not ask her for Hunt's Florida address.

Presumably, if respondents had promptly served the arrest warrant upon Petitioner or had filed a detainer against Petitioner with the Robeson authorities, then Petitioner would have demanded to be tried. N.C. Gen.Stat. § 15-10.2 requires a person in state custody who has a detainer lodged against him to be tried within eight months of his request to be tried. Prompt action also would have given Petitioner notice of the charges against him and would have allowed him to contact (and remain in contact with) his alibi witness who moved from Lumberton, North Carolina no less than if not more than three months after the warrant for Petitioner's arrest had been issued.

The right to a speedy trial, guaranteed under the protections of the Sixth Amendment, is extended only to a putative defendant who has in some way become an accused. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const. amend. VI. (Emphasis supplied). In the case at bar, the Sixth Amendment Speedy Trial provision is inapplicable to Petitioner's situation unless the issuance of an arrest warrant bestows upon the subject of such a warrant the status of "accused."

The Supreme Court discussed the meaning of the term "accused" in connection with the triggering of Sixth Amendment protections in Marion. The Marion court examined a three-year delay between the commission of an offense and the pre-arrest indictment to determine if such a delay violated the defendants' right to a speedy trial. The Court said that the protections of the Sixth Amendment are "activated only when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution." Marion at 313, 92 S.Ct. at 459. On the facts of Marion, the Court held that the defendants had not become accused until they had been indicted. The indictment had been the initial document of record that was related to the criminal prosecution of the defendants—it was the first official document which blamed, incriminated, or charged the defendants with any violation of the law.

Has a person who has not yet been indicted but who has been named in an arrest warrant, which states that there is probable cause to believe that the named person has committed specific criminal acts, been...

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2 cases
  • Howell v. Barker
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 24, 1990
    ...but rejected the magistrate's remedy. The district court held that the writ should issue and ordered a retrial. Howell v. Barker, 684 F.Supp. 132 (E.D.N.C.1988). The State of North Carolina appealed. We Facts and Procedural History On the afternoon of September 19, 1979, Ms. Ruby Carlyle, a......
  • Zdrok v. Deutsch
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • May 2, 1988

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