The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
This a motion under 28 U.S.C. § 2255 by Frank Sherbicki ("petitioner") to vacate a twelve-year prison sentence* imposed upon him by this court on June 2, 1969 upon his conviction for conspiracy to violate the narcotics laws
following a two-week trial which began on March 3 and ended March 14, 1969.
The files and records of the court show that petitioner was arrested on March 13, 1961 on a complaint charging the narcotics conspiracy upon which he was ultimately convicted. Petitioner was then released on his own recognizance by the Commissioner, and between March 13, 1961 and September 30, 1964, when the indictment charging him and eleven others with conspiracy to violate the federal narcotics laws was filed, petitioner's case was adjourned forty-four times on the Commissioner's calendar without opposition.
In the interim, in January 1964, petitioner shot co-defendant Joseph Armone and disappeared. He was a fugitive when the indictment was filed and remained a fugitive during the trial of six of his eleven co-defendants from May 3, 1965 to June 22, 1965.
Petitioner was apprehended on August 21, 1965, pleaded not guilty, and was enlarged on $100,000 bail. This court was then operating under the master calendar system, and we had been assigned to the criminal trial part for the month of October 1965. The Judge assigned to the criminal calendar part, on October 22, 1965, assigned the case to us. However, due to prior trial commitments we were unable to reach the case and promptly returned it to the calendar part for reassignment.
On December 23, 1965, Judge Tenney denied a motion by petitioner to dismiss the indictment for denial of a speedy trial, and a second motion for the same relief was denied by Judge Sugarman on March 25, 1966.
On motion of the government and without objection, petitioner was released from federal custody on July 8, 1966, enlarged on his own recognizance, and the case marked off the trial calendar. Petitioner was then taken into state custody, pleaded guilty to assaulting Joseph Armone, and commenced service of a state sentence of from five to ten years' imprisonment. During the ensuing two years, petitioner made no motion for a speedy trial. The case was again assigned to us on November 27, 1968 for trial in March 1969. On December 12, 1968, Judge Bonsal denied a third motion for a speedy trial on the ground that the case had been assigned for trial in March.
Trial of petitioner and three of his co-defendants
commenced before us on March 3, 1969. Petitioner, at the opening of the trial, again moved for dismissal for denial of a speedy trial and requested a hearing. We declined to interrupt the trial at that stage (see Nardone v. United States, 308 U.S. 338, 342, 60 S. Ct. 266, 84 L. Ed. 307 (1939)) and ruled that a hearing would be held after the trial, if necessary. The motion was renewed after trial, but we were obliged to disqualify because counsel represented that we would be called as a witness (see 28 U.S.C. § 455). Consequently, the motion was referred to Judge Wyatt who ruled that a hearing was not required and on April 15, 1969 denied the motion as frivolous. The motion was then referred back to us and denied on June 2, 1969.
The files and records of the court thus show that the grounds which petitioner now urges as a basis for collateral relief were rejected on the merits by five judges of this court.
Petitioner appealed from the judgment of conviction entered against him on June 2, 1969. The record and briefs on appeal show that the primary ground for reversal asserted by petitioner on direct review was that he had been denied a "speedy trial." The Court of Appeals, finding no unreasonable delay in providing a trial under all of the circumstances, rejected petitioner's claim and affirmed the judgment of conviction sub nom., United States v. Guanti, 421 F.2d 792, 798, 800 (2d Cir.), cert. denied, 400 U.S. 832, 91 S. Ct. 65, 27 L. Ed. 2d 64 (1970).
Petitioner now contends anew that he was denied his constitutional rights under the Sixth Amendment to a speedy trial and "to call witnesses in his behalf." As we have shown, these claims have been fully raised and rejected on direct review and are, therefore, foreclosed now as a basis for collateral relief.
Grounds raised and rejected on direct review cannot be relitigated by an application for collateral relief brought under 28 U.S.C. § 2255. Townsend v. Sain, 372 U.S. 293, 313, 317, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); United States v. Tomaiolo, 378 F.2d 26, 28 (2d Cir.), cert. denied, 389 U.S. 886, 88 S. Ct. 159, 19 L. Ed. 2d 184 (1967).
Our earlier denial of petitioner's fifth motion to dismiss the indictment for alleged denial of a speedy trial was based on our conviction from the irrefutable facts that the last thing petitioner wanted was a trial, "speedy" or otherwise. He never demanded a "speedy trial" until trial appeared imminent. His demands were transparently insincere. Thus, his first two motions to dismiss the indictment for lack of a speedy trial were not made until the case was on the trial calendar. In July 1966, the case was marked off the trial calendar, without objection, and petitioner, more than content to let sleeping dogs lie, made no further feints at a speedy trial until November 8, 1968, when trial again appeared imminent, the case having been restored to the trial calendar in August 1968.
Petitioner's claim that he was denied the right "to call witnesses on his behalf" is also untenable. The Court of Appeals determined that any delay in bringing this case to trial was the fault not of the prosecutor but of the petitioner's own flight from an earlier trial and his failure to demand a speedy trial. The dispersal of any of petitioner's ...