U.S. ex rel. Spina v. McQuillan, 465

• Citation: 525 F.2d 813
• Decision Date: 16 July 1975
• Docket Number: No. 465,D,465
• Parties: UNITED STATES ex rel. Tobia L. SPINA, Appellant, v. Adam McQUILLAN, Warden, Appellee. ocket 74--2285.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 813

525 F.2d 813

UNITED STATES ex rel. Tobia L. SPINA, Appellant, v. Adam McQUILLAN, Warden, Appellee.

No. 465, Docket 74--2285.

United States Court of Appeals, Second Circuit.

Argued Dec. 19, 1974.

Decided July 16, 1975.

Michael Young, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, on the brief), for appellant.

Arlene R. Silverman, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for appellee.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

TIMBERS, Circuit Judge:

On this appeal from an order entered November 7, 1973 in the Southern District of New York, Charles H. Tenney, District Judge, denying without a hearing a state prisoner's petition for a writ of habeas corpus which claimed that he had been denied his right to a speedy trial, the essential issue is whether, as his present counsel on appeal would have us believe, petitioner did in fact assert his right to a speedy trial during the twenty-six month delay between his indictment and trial.

We hold that he did not and accordingly we affirm.

I.

On November 19, 1969, Tobia L. Spina, then a detective in the New York City Police Department, was indicted, together with Watkins T. Parry, a police lieutenant, for receiving unlawful gratuities, and conspiring to do so, while employed by the police department. Following a jury trial which began January 6, 1972, Spina and Parry were convicted on both counts.

Spina's conviction was unanimously affirmed without opinion by the Appellate Division on January 16, 1973. People v. Spina, 41 App.Div.2d 602, 339 N.Y.S.2d 922 (1st Dept. 1973). Leave to appeal to the New York Court of Appeals was denied on February 18, 1973. Spina remained at liberty on his own recognizance throughout this entire period until March 29, 1973, when he began serving his concurrent sentences of one year on the substantive count and three months on the conspiracy count.

On June 21, 1973, while incarcerated, ¹ Spina filed the instant petition for a writ of habeas corpus. He alleged two constitutional claims: (1) that he had been denied his Sixth Amendment right to a speedy trial within the meaning of Barker v. Wingo, 407 U.S. 514 (1972); and (2) that he had been denied what he asserted to be his Fourteenth Amendment right to equal protection 'as a result of the State and District Attorney's office manipulation of the trial calendar which placed him in a position to be discriminated against.'

In support of these claims, Spina alleged that, during the twenty-six month delay between his indictment and trial, more than thirty adjournments were granted at the request of the district attorney, resulting in Spina's not being brought to trial until the final week of the Knapp Commission hearings on police corruption. He alleged that during this period 'petitioner was ready for and demanded that trial begin.' In a supplemental petition filed August 13, 1973, Spina alleged that this delay resulted in prejudice to him by forcing him to go deeply into debt, breaking up his marriage of twenty-one years, and causing him 'health impairment and inestimable mental anguish and public scorn'. Spina also alleged that the delay resulted in loss of gainful employment, denial of gainful employment in his field of endeavor, and on two occasions denial of 'a high paying position' because he could not be bonded.

In opposing the petition for a writ of habeas corpus, the State alleged that Spina's claims were the same as those he previously had raised in the New York State courts. The State attached to its opposing affidavit a copy of its brief in the Appellate Division in which it had answered Spina's allegations of denial of a speedy trial.

The State's brief essentially recited that just after Spina's case was called on January 6, 1972 his counsel had made an oral motion to dismiss the indictment for failure to prosecute; that Spina's counsel had claimed at that time that the delay was due solely to the State and that at no time had Spina asked for or received an adjournment; and that Spina's counsel had claimed that Spina had been prejudiced through the unavilability of an important defense witness, Chief Albert Seedman, but that, although Seedman had testified at the trial as a character witness for Parry, Spina had not questioned him or called him as a witness.

It further appeared from the State's brief that, contrary to Spina's account of the facts, the delay in trial either was caused by or was consented to by Spina or Parry, or was due to calendar congestion. The State's brief also set forth statements by an assistant district attorney who, in response to Spina's oral motion to dismiss the indictment, had read into the record detailed notations from the case jacket. ² After reciting these notations, the State's brief pointed out that the trial court had denied Spina's motion; urged the Appellate Division to strike Spina's claim of denial of a speedy trial for failure to include in the record the minutes of any pre-trial appearances in support of such claim; and concluded that the trial court had not abused its discretion in denying Spina's motion.

On the basis of the foregoing, the district court filed a written opinion on November 5, 1973 denying Spina's petition. Among the findings made by the district court were the following:

'(U)ntil the commencement of the trial, petitioner's counsel made no demand for trial. Indeed, the numerous delays were either caused by petitioner's and/or Parry's counsel or were consented to by them. On the eve of trial, petitioner's attorney orally moved to dismiss the indictment because of delay in prosecution. He argued that because of the delay, petitioner would be severely prejudiced in that a 'material' witness--Albert A. Seedman--had 'disappeared'. The trial court denied the motion and the trial proceeded. It should be noted that, in the course of the trial, Mr. Seedman was called as a character witness in behalf of petitioner's co-defendant, but petitioner's counsel took no part in the examination of that witness.'

The district court acknowledged that the twenty-six month delay between indictment and trial raised 'the threshold question of whether petitioner was denied his right to a speedy trial.' The court correctly observed, however, that under Barker v. Wingo, supra, 407 U.S. at 530, it was appropriate to weigh such additional factors as the reason for the delay, whether Spina in fact had been prejudiced by the delay, and whether he had asserted his right at any time before trial commenced. Taking these factors into account, the court concluded:

'In view of the fact that petitioner never asserted his right to a speedy trial until the trial was about to begin and in view of the fact that petitioner apparently suffered no prejudice--Seedman was never called to testify in petitioner's behalf and petitioner was free on his own recognizance during the entire period--his claim that his sixth amendment right was infringed is without merit.' ³

From the denial of Spina's petition for a writ of habeas corpus, this appeal was taken.

II.

We turn directly to Spina's claim that the district court erred in denying without a hearing his petition which asserted infringement of his right to a speedy trial. A good starting point is the Supreme Court's admonition in Barker v. Wingo, supra, 407 U.S. at 532, that 'failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.' That is precisely what this case is all about.

Spina contends that his petition set forth a prima facie violation of his right to a speedy trial under Barker v. Wingo, supra. He argues that the district court erred in refusing to credit the allegations of his petition and in resolving factual issues against him by relying on the State's brief in the Appellate Division. He points to his allegations that he demanded that trial begin during the twenty-six month delay, that the delays were caused by the prosecutor and not by Spina, and that he was prejudiced. He criticizes the district court for disbelieving his allegations on the basis of statements made by the assistant district attorney at the pre-trial colloquy in the state court.

If the State's brief were the only portion of the state court proceedings before us, Spina's argument in this respect would be more persuasive. We have obtained and have carefully examined, however, the appendices which were filed in the Appellate Division by Spina and Parry. They include the docket sheets and trial transcript of Spina's case. We have combed through this record and have found nothing whatever to support Spina's claim of denial of a speedy trial.

Bearing in mind the Supreme Court's emphasis in Barker v. Wingo upon the failure to assert the right to a speedy trial, we have exercised particular care in searching the state court record with an eye toward locating any evidence that Spina affirmatively demanded a speedy trial during the twenty-six month period between his indictment and trial. We have found none.

The docket sheets which contain notations of other defense motions make no reference at all to any defense motion for a speedy trial. Although many calendar calls are recorded, there is no record whatever which indicates that Spina ever objected to an adjournment. More important, our scrutiny of the transcript satisfies us that at no point in his argument in the state trial court in support of Spina's motion to dismiss the indictment for failure to prosecute did Spina's counsel ever assert that Spina had affirmatively demanded an early trial, as Spina's counsel on the instant appeal now asserts.

Nor did Spina's brief in the Appellate Division recite that Spina ever demanded a speedy trial. Spina's failure to include any reference to such a demand in his Appellate...