Maldonado v. Eyman

• Decision Date: 21 April 1967
• Docket Number: No. 21430.,21430.
• Citation: 377 F.2d 526
• Parties: Ernest Paul MALDONADO, Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

377 F.2d 526 (1967)

Ernest Paul MALDONADO, Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Appellee.

No. 21430.

United States Court of Appeals Ninth Circuit.

April 21, 1967.

Ernest P. Maldonado, appellant, in pro. per.

Darrell F. Smith, Atty. Gen. of Ariz., James S. Tegart, Asst. Atty. Gen., Phoenix, Ariz., for appellee.

Before POPE, MERRILL and BROWNING, Circuit Judges.

MERRILL, Circuit Judge:

Appellant seeks release on habeas corpus from Arizona state custody pursuant to state conviction of the crime of burglary. He has appealed from the order of the District Court denying the writ without issuing an order to show cause or holding an evidentiary hearing. Two issues are presented by this appeal.

1. Appellant contends that the delays between arrest, on March 8, 1961, and arraignment, on May 26, 1961, 79 days, and between arraignment and trial, on August 29, 1961, 95 days, were an unconstitutional violation of his right to speedy trial.

That right does not depend on any fixed formula or time limitation, but upon all the circumstances of the case. Relevant factors include reasons for the delay, demands by the accused and treatment of the accused by the police.

"The delay must not be purposeful or oppressive * * * the essential ingredient is orderly expedition and not mere speed." United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627 (1966).

Here defendant gives no indication as to how he was prejudiced by the delay. His confession (with which we deal later) was in no way attributable to delay.¹ Under all of the circumstances we find no violation of constitutional rights. In this respect the District Court is affirmed. See State v. Maldonado, 92 Ariz. 70, 373 P.2d 583 (1962), cert. denied, 371 U.S. 928, 83 S.Ct. 299, 9 L.Ed.2d 236 (1962).

2. Appellant contends that a written confession introduced in evidence on his state trial, was involuntary. The District Court ruled that since the record establishes that the confession was received in evidence without objection, there had been an effective waiver of appellant's right to its suppression.

The state trial transcript was not made a part of the record, and questions remain unanswered which are importantly relevant to the issue of waiver or deliberate bypass of state procedures.

Primarily, the record does not disclose why no objection was made, and it cannot be ascertained on the limited record that failure to object constituted a deliberate bypass. Cf. Kuhl v. United States, 370 F.2d 20 (9th Cir. 1966).

The necessity for remand under these circumstances was explained recently by this court in Pembrook v. Wilson, 370 F.2d 37, 41 (9th Cir. 1966), where we said:

"Since these factual questions cannot be resolved by reference to the record, as we were able to do in Kuhl v. United States, 9 Cir., 370 F.2d 20, the issue of deliberate by-passing can only be determined after `* * * the federal court has satisfied itself, by holding a hearing or by some other means of the facts bearing upon the applicant\'s default.\' Fay v. Noia, 372 U.S. 391, at 439, 83 S.Ct. 822, at 849 9 L. Ed.2d 837.

"Therefore, in the absence of some explanation in the record as to these matters, the district court had no reason, nor have we, to hold that Pembrook deliberately by-passed state procedures. This by-pass question is a matter to be explored in appellee\'s return to the application and at a

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