Kelley v. Kropp

• Decision Date: 14 October 1966
• Docket Number: Civ. A. No. 25562.
• Citation: 259 F. Supp. 417
• Parties: Harvey KELLEY, Petitioner, v. George A. KROPP, Warden State Prison of Southern Michigan at Jackson, Michigan, Respondent.
• Court: U.S. District Court — Western District of Michigan

259 F. Supp. 417

Harvey KELLEY, Petitioner, v. George A. KROPP, Warden State Prison of Southern Michigan at Jackson, Michigan, Respondent.

Civ. A. No. 25562.

United States District Court E. D. Michigan, S. D.

October 14, 1966.

Arthur Allan Smith and John E. English, Detroit, Mich., for petitioner, Kelley.

Frank J. Kelley, Atty. Gen., and Allan D. Chrisholm, Asst. Atty. Gen., for respondent, Kropp.

MEMORANDUM OPINION AND ORDER DENYING WRIT OF HABEAS CORPUS

McCREE, District Judge.

Petitioner, who is presently serving at State Prison of Southern Michigan a sentence of not less than fifteen years with a maximum term of thirty years for robbery armed, filed a petition for writ of habeas corpus asserting that he was denied a speedy trial in contravention of his rights guaranteed under the Constitution of the United States.

Following the hearing on an order to show cause, counsel was appointed for petitioner, a writ of habeas corpus was issued, and an evidentiary hearing was conducted on the merits of petitioner's allegations. I make the following factual findings.

On December 4, 1961, petitioner was transferred from Marquette Prison where he was serving two concurrent sentences, to Detroit, Michigan to answer a warrant which had been issued from the Recorder's Court for the city of Detroit on November 22, 1961 for an alleged armed robbery which was committed in Detroit in September, 1960. Co-defendants named in the warrant were Ronald Gilliam and Joseph Kelley. Petitioner was arraigned on the armed robbery complaint December 6, 1961 and counsel was appointed at that time to represent him. Preliminary examination was held on December 15, 1961, with petitioner's counsel present, and on February 14, 1962 petitioner and his co-defendants were arraigned on the information which had been filed and to which they pleaded not guilty. The case was set for trial on March 6, 1962, was adjourned to March 8, 1962, and was again adjourned to June 28, 1962. On June 21, 1962, petitioner, through his counsel, filed a motion to set the case for trial. This motion was denied June 22, 1962 because the trial was already set to commence June 28, 1962. Nevertheless, the trial was subsequently adjourned to August 16, 1962, then to September 13, 1962, again to December 12, 1962 and finally to December 17, 1962 at which time trial was commenced. Prior to the commencement of the trial the charges against both of petitioner's co-defendants were dismissed. The jury convicted petitioner on December 20, 1962. It should be observed that all of the adjournments were at the request of the prosecution.

The initial question is whether the delay in bringing petitioner to trial amounted per se to a violation of his constitutional rights in the absence of a demonstration of actual prejudice of a substantial nature. Doubtless there is a point at which delay of trial without intervening prejudice to a defendant will constitute a violation of a defendant's constitutional rights. However, for the following reasons I do not find that the delay herein is of that character.

The delay which initially is considered herein is from March 6, 1962, the date the case was originally set for trial until December 17, 1962, when the trial actually commenced. It should be observed that petitioner did not move for a speedy trial until June 21, 1962 and that he was not deprived of his liberty pending trial because he was in custody during the entire time pursuant to convictions not under attack here. A speedy trial without unreasonable or unnecessary delay is guaranteed to all defendants in criminal matters in federal court prosecutions expressly by the Sixth Amendment. The express Constitutional guarantee of the Sixth Amendment does not extend to defendants prosecuted in state rather than federal courts. Copley v. Sweet, 133 F.Supp. 502 (W.D. Mich.1955), aff'd per curiam 234 F.2d 660. The Due Process clause of the Fourteenth Amendment, however, assures state court defendants that proceedings against them must satisfy a standard of fairness. The specific Sixth Amendment guarantee of a speedy trial provides some guidance for giving content to the more general guarantee of the Fourteenth Amendment. Under either Constitutional provision, however, a defendant who desires a speedy trial has the burden of demanding this right by a formal request, either by objecting to adjournment or by some other means of bringing his desire to the court's attention. Failure to make such a demand constitutes waiver of the right. United States v. Haller, 333 F.2d 827 (2nd Cir. 1964) (6th Amend.); Harlow v. United States, 301 F.2d 361 (5th Cir. 1962) (6th Amend.); United States ex rel. Giovengo v. Maroney, 194 F.Supp. 154 (D.C.Pa.1961) (14th Amend.); United States ex rel. Von Cseh v. Fay, 195 F.Supp. 432 (D.C.N.Y.1961) (14th Amend.).

Thus, the date from which the delay attacked by petitioner must be found to have commenced is June 21, 1962, when he moved for a speedy trial, five months before the actual trial date, December 17, 1962. It does not appear that a delay of five months, without more, denies a defendant the...