Wells v. Petsock

• Decision Date: 09 July 1991
• Docket Number: K-2894,No. 90-3199,A,90-3199
• Citation: 941 F.2d 253
• Parties: Richard K. WELLS,ppellant, v. George PETSOCK, Superintendent. . Submitted Under Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 253

941 F.2d 253

Richard K. WELLS, K-2894, Appellant, v. George PETSOCK, Superintendent.

No. 90-3199.

United States Court of Appeals Third Circuit.

Submitted Under Rule 12(6) July 9, 1991.

Decided Aug. 16, 1991.

Thomas S. White, Acting Federal Public Defender, Pittsburgh, Pa., for appellant.

Before STAPLETON, COWEN, and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal from a denial of a habeas corpus petition raises the question whether violation of a state's statutorily defined deadline to ensure a prompt trial constitutes a deprivation of the defendant's constitutional right to either a speedy trial or effective assistance of counsel. The petitioner's murder trial commenced 217 days after his arrest, 37 days beyond Pennsylvania's 180-day limit. The defendant did not perfect an appeal but filed post-trial motions which were denied. The trial court, ¹ on reviewing a post-conviction motion, reversed the petitioner's conviction concluding that his constitutional right to a speedy trial was violated.

The Commonwealth took an appeal and the superior court remanded for another evidentiary hearing, after which the trial court again found that the petitioner's constitutional right to a speedy trial was infringed and ordered his release. The superior court affirmed this order and the Commonwealth appealed. The Pennsylvania Supreme Court reversed, holding that the petitioner's counsel was not ineffective by agreeing to the continuance of his client's trial date and, thus, the petitioner's right to a speedy trial was not violated.

The petitioner filed this petition for a writ of habeas corpus in the United States Court for the Western District of Pennsylvania. The magistrate-judge, without granting an evidentiary hearing, submitted a report recommending denial of the writ because the petition did not state a cognizable federal constitutional claim. The district court adopted the report and recommendation of the magistrate-judge and denied the writ. We affirm.

I.

The petitioner, Richard Wells, is currently serving a life sentence for a second degree murder conviction after he and three others robbed and killed an elderly woman. Wells was arrested on July 28, 1975, and his trial was scheduled to commence during the 1975 September Term. Wells' court-appointed counsel shortly thereafter applied for a change of venue on the grounds of prejudicial pretrial publicity. The court denied this motion.

On September 12, 1975, however, the court issued its own motion continuing the case until the February 1976 term of court, beyond the 180-day limit prescribed by Pennsylvania Rule of Criminal Procedure 1100 (Rule 1100). While awaiting trial, Wells was kept in custody in a state high security prison over 200 miles from the trial court.

In November, 1975, the district attorney, seeking to confirm the court's continuance, filed its own motion based on an anticipated shortage of veniremen from which to select a jury for Wells' highly-publicized murder trial, which, according to the trial judge, was the first one held in that county in twenty years. At a brief hearing before the court held in the absence of the defendant, counsel, without consulting with Wells, agreed to have the trial continued until February, 1976. Defense counsel's failure to object or obtain Wells' consent is the focal point of Wells' assignment of error.

Jury selection commenced March 1, 1976, or 217 days after Wells' arrest. Prior to the start of trial, on February 25, 1976, Wells filed with the court a pro se application to dismiss the charges against him under Rule 1100. ² The court summarily denied this application on March 2, 1976.

A trial court judge, hearing Wells' speedy trial petition in 1981, examined the trial transcripts and other evidence in the record, heard argument from counsel, and subsequently entered an order for Wells' release based on the finding that his constitutional right to a speedy trial had been violated. After a Commonwealth appeal, the superior court remanded to the trial court for a determination on the whole trial record, 322 Pa.Super. 380, 469 A.2d 672, including those portions which had not been transcribed at the time of the original review.

On February 24, 1984, the trial court conducted a second hearing, made extensive factfindings, and again ruled in favor of Wells. This time, the superior court affirmed. 345 Pa.Super. 623, 496 A.2d 855. After the Commonwealth appealed, the Pennsylvania Supreme Court reversed. The supreme court stated that the proper resolution of Wells' constitutional claim required reference to the defense counsel's conduct prior to trial because, it declared, "if counsel's decision to agree to the continuance constituted effective representation, then [Wells'] constitutional argument fails." The court found that because of the negative publicity surrounding the murder, the postponement of the trial date benefitted Wells. The court stated,

Considering that the district attorney himself characterized the pretrial publicity as "lurid," we are not prepared to say that the trial counsel's agreement to a 37 day extension to the 1100 Rule was not a reasonable choice. Since the trial court has already foreclosed the possibility of a change of venue, a six month cooling off period was a reasonable alternative and was certainly in [Wells'] best interests.

On habeas review, the magistrate-judge adopted the undisputed factual findings of the state reviewing courts. The magistrate-judge likewise agreed with the Pennsylvania Supreme Court's legal analysis, concluding that, because the delay reasonably could have aided Wells, his counsel was not ineffective and his constitutional right was not breached.

II.

Our review of a federal habeas corpus petition is limited to remedying deprivations of a petitioner's federal constitutional rights. We can take no cognizance of non-constitutional harm to the defendant flowing from a state's violation of its own procedural rule, even if that rule is intended as a guide to implement a federal constitutional guarantee.

In this case, Pennsylvania's 180-day rule does not define the contours of the federal constitutional right to a speedy trial. Cowgill v. Zimmerman, 667 F.Supp. 1083 (E.D.Pa.1987) aff'd 845 F.2d 1010. Indeed, when defining that right, the United States Supreme Court eschewed the rigid limitations contained in state statutes and adopted a more fluid balancing test. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Court identified four factors to determine whether a trial delay infringes the Sixth Amendment right: the length of the delay, the validity of the reasons for the delay, whether the defendant affirmatively asserted his right, and whether the defendant was prejudiced by the delay. Id. at 530-32, 92 S.Ct. at 2191-93.

Here, the petitioner's counsel agreed to the postponed trial date. The petitioner, however, argues that his counsel could not waive Wells' constitutional right to a speedy trial without his consent. Not all constitutional rights must be waived by the defendant personally; only those rights which are fundamental and inherently personal to a criminal defendant, such as the right to testify personally, "can be waived only by the defendant and not by his attorney." U.S. v. Johnson, 555 F.2d 115, 118 (3rd Cir.1977) quoting Winters v. Cook, 489 F.2d 174, 179 (5th Cir.1973); see also, U.S. v. Teague, 908 F.2d 752, 757 n. 4 (11th Cir.1990), rehearing granted, 932 F.2d 899, and cases cited therein. The court in Teague observed,

[M]any of the tactical decisions made by defense attorneys throughout the course of their representation of the defendant "implicitly involve the waiver of constitutional rights" but do not require the defendant's personal consent. However, "[w]here an inherently personal right of fundamental importance is involved, the defendant's [personal] consent is required." Rights that have been found to be inherently personal and of fundamental importance such that only the defendant, not counsel, may waive them include the right to go to trial, the right to be tried by a jury, the right to be represented by counsel, and the right to appeal.

Teague, 908 F.2d at 758 (citations omitted).

We note also that the United States Supreme Court, observing that the right to a prompt trial has its roots in the Magna Carta and earlier ancient sources of law, held that this right "is as fundamental as any of the rights secured by the Sixth Amendment." Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S.Ct. 988, 993, 18 L.Ed.2d 1 (1967). However, because under the four Barker factors Wells' petition does not state facts which arise to a level of a deprivation of the constitutional right to a speedy trial, we do not need to decide whether this right is so fundamental and personal that it can be waived only with the defendant's personal consent.

Turning to the first Barker factor, the length of delay, the United States Supreme Court has observed that the "speedy trial guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an accused while released on bail, and to shorten the disruption of life caused by arrest and the presence of unresolved criminal charges." U.S. v. Loud Hawk, 474 U.S. 302, 311, 106 S.Ct. 648, 654, 88 L.Ed.2d 640 (1986), quoting U.S. v. MacDonald, 456 U.S. 1, 8, 102 S.Ct. 1497, 1502, 71 L.Ed.2d 696 (1982). The length of delay which is presumptively prejudicial and which triggers plenary inquiry into the circumstances surrounding the delay will vary with the particular features of each case. Longer delays can be tolerated, for example, when the crime is very serious or complex. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. In addition, the impairment of liberty resulting from pretrial incarceration is most serious and, thus, the gravity of the...