In re Kominski

• Decision Date: 17 December 1958
• Docket Number: No. 15.,15.
• Citation: 168 F. Supp. 836
• Parties: In The Matter of Benjamin KOMINSKI.
• Court: U.S. District Court — District of Delaware

168 F. Supp. 836

In The Matter of Benjamin KOMINSKI.

No. 15.

United States District Court D. Delaware.

December 17, 1958.

Benjamin Kominski, petitioner, pro se. F. Alton Tybout, Chief Deputy Atty. Gen., for the State.

LAYTON, District Judge.

This is an application for habeas corpus by a prisoner confined in the New Castle Correctional Institution upon a conviction in the Superior Court of Delaware for Robbery. Pursuant to the requirements of Title 28, U.S.C.A. § 2249, the respondent (State of Delaware) filed with the Court copies of the indictment, the plea of the petitioner and the judgment together with a copy of the record of his hearing in the Superior Court.¹ Two reasons are assigned for the petitioner's alleged illegal detention: (1) That, after his arrest in May, 1956, he was not brought to trial within two terms as required by Title 10 Del.C.1953, § 6910² and (2) that he was not afforded a speedy trial under the 6th and/or the 14th Amendments to the Federal Constitution.

A chronological sequence of events may serve more clearly to point up the questions involved. Petitioner was placed on parole in Pennsylvania in May, 1955. In late April or early May, 1956, he was arrested in Pennsylvania and taken to Delaware on charges of Robbery. A detainer was placed against him in Pennsylvania for violation of parole in that State. At the May term, 1956, he was indicted by the Grand Jury in and for New Castle County, Delaware, for Robbery. The case was continued until the September term. While not a matter of absolute certainty, it is highly probable that this was at the request of his court-appointed attorney who testified:

"I don't recall, your Honor, whether it (the continuance) was at my request or not. I do know that the sume that it was at my request because I had been appointed only a case was continued. I would as-week before that."³

At the September term, the case was continued upon the application of the attorney for petitioner's co-defendant. Petitioner's attorney definitely made no objection to this second continuance.⁴ The case was scheduled for trial at the November term on November 20th but, for reasons not appearing, had to be continued until November 28th when it was tried. Two days prior to that, and unknown to petitioner's attorney, petitioner filed a petition for a writ of habeas corpus upon the grounds above set forth. This was denied by Judge Carey of the Superior Court after a full hearing upon the facts and by the Supreme Court of Delaware upon the ground that defendant had not opposed the continuance in September and thus waived any right he might have had. Kominski v. State, Del., 141 A.2d 138. Certiorari was denied by the Supreme Court of the United States, October 13, 1958.

The petition was filed in this Court on November 13, 1958. It alleges the same two reasons assigned as grounds in the Superior Court petition.

There are several reasons why petitioner's first point is completely lacking in validity. First, it was filed too late — just prior to the date of his trial on November 28, 1956. The question was then moot. Second, even if the petition had been filed a substantial time prior to November 28, and had been granted, petitioner was only entitled to release without bail not, as he conceives, to a dismissal of the indictment.⁵ Thirdly, no constitutional question is raised, as I see it, for the point is based upon a statutory right. Fourth, he did not object to the second continuance which ends all debate on the matter.

As to the second point, whether or not based upon the 6th or 14th Amendments to the Federal Constitution, the petitioner's case is equally unconvincing. The Supreme Court of Delaware gave this question careful consideration and concluded that he had waived whatever right to speedy trial he might have had. Kominski v. State, supra. I fully concur in that result.⁶

There was actually a third reason urged before me at the hearing although it was not assigned as a ground in the petition filed in this Court. Neither was it urged in the Delaware Superior or Supreme Courts. The reason is this. Petitioner claims that he asked his counsel to go to Philadelphia to interview two witnesses at a given address. These witnesses, according to petitioner, were night club singers or habitues and would have furnished an alibi. Petitioner did not know their names but claims that he had spent the night of the crime with them on a drinking spree. He asserts that his counsel reported that one of these girls lived at this address but the other did not (he did not find either of them), but that a Philadelphia detective at the trial stated that the address was that of an auditorium. The inference is that petitioner's court-appointed counsel improperly misled him. Some of these facts were testified to by the petitioner before Judge Carey but he did not claim at that hearing that his counsel had misled him. There he was taking the position that failure to be discharged on bail under Title 10 Del.C.1953, § 6910 prevented him from making a personal search for these alleged witnesses.

Now, even if these facts were true, which is highly doubtful, and omitting the important query why petitioner would have named an auditorium as the address of the two witnesses in question, this point cannot be raised for the first time before this Court. Assuming such circumstances afforded a ground of relief, petitioner would first have to pursue his remedy in the State Courts by way of an appeal from his conviction, or if this were denied, then upon a further ...