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November 3, 1977


The opinion of the court was delivered by: KNAPP


 In this application for a writ of habeas corpus, petitioner challenges the validity of his conviction and sentence in New York State courts on a robbery charge. He bases his attack on several grounds, alleging: (a) that the conviction was based on insufficient evidence, (b) that the prosecutor's reference in his summation to a co-defendant's confession violated the Bruton rule, (c) that the judge erroneously charged the jury, (d) that petitioner was denied a speedy trial, and (e) that the judge erred in allowing testimony as to petitioner's prior criminal behavior and photographic identifications made of him. Petitioner had raised virtually identical claims on appeal to the New York Supreme Court, Appellate Division, which unanimously affirmed the conviction without opinion. Leave to appeal to the Court of Appeals was denied.

 Only two of petitioner's claims -- the alleged Bruton violation and the speedy trial claim, insofar as it rests on constitutional grounds -- possess the constitutional stature required for federal habeas review. Wainwright v. Sykes (1977) 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497, slip op. at 9. We first consider the claim of undue delay.

 (A). The Speedy Trial Issue

 Petitioner was confined for eleven months while awaiting trial. He claimed undue delay in an unsuccessful pre-trial motion and again on appeal. Petitioner was represented by counsel in both of these proceedings. In the motion he claimed violations of the Sixth Amendment and state statutes; on appeal he merely claimed a violation of a generalized right to speedy trial. His appellate brief expressly relied on C.P.L. § 30.30, *fn1" and in no way asserted a constitutional speedy trial claim. On the contrary, petitioner through counsel specifically urged that "[unlike] a speedy trial motion predicated upon constitutional grounds, a motion made pursuant to § 30.30 is not governed by the five factors recently enunciated in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303. It will succeed or fail purely upon mathematical calculations . . ." (Appellant's Br. at 13). The Taranovich factors, thus expressly labelled irrelevant to petitioner's appeal, are virtually identical to the four factors that Barker v. Wingo (1972) 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, establishes as dispositive of Sixth Amendment claims of undue delay. *fn2" Id. at 530.

 Under these circumstances, we find that petitioner's constitutional claim was not "fairly presented to the state [appellate] court." Picard v. Connor (1971) 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509, see United States ex rel. Johnson v. Vincent (2d Cir. 1974) 507 F.2d 1309.

 It appears that no avenue of relief in state court remains open to petitioner for his constitutional speedy trial claim. *fn3" Accordingly we cannot say that he has failed to exhaust his state remedies. Humphrey v. Cady (1972) 405 U.S. 504, 516, 31 L. Ed. 2d 394, 92 S. Ct. 1048. Cf. United States ex rel. Gibbs v. Zelker (2d Cir. 1974) 496 F.2d 991, 994 n. 6.

 We must therefore consider whether petitioner's failure to raise on appeal a constitutional speedy trial claim bypassed state procedures so as to preclude federal habeas review. In making that determination we are guided by the sequence of Supreme Court cases beginning with Fay v. Noia (1963) 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822, and culminating in last term's decision in Wainwright v. Sykes (1977) 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497. In Fay v. Noia, petitioner Noia had neglected to bring any appeal of his state conviction, and his subsequent coram nobis action was thereby barred. The Court held that Noia was nonetheless entitled to federal habeas review of his claim that the conviction was based upon a coerced confession. The Court asserted that a habeas petition is not barred by procedural defaults unless there had been a "knowing waiver" or "deliberate bypass." Fay v. Noia, 372 U.S. at 439. Subsequent decisions in Davis v. United States (1973) 411 U.S. 233, 36 L. Ed. 2d 216, 93 S. Ct. 1577 and Francis v. Henderson (1976) 425 U.S. 536, 48 L. Ed. 2d 149, 96 S. Ct. 1708 limited the effect of Fay. Francis held that a habeas petitioner's failure to raise pre-trial his objection to a grand jury's composition, as required by state law, barred consideration of that claim in federal habeas, absent a showing of "cause" for the procedural waiver and "actual prejudice" flowing from it. Id. 425 U.S. at 542. This past term in Wainwright v. Sykes, supra, the Court further limited Fay and extended the Francis "cause" and "prejudice" test to a waived objection to the admission of a confession at trial.

 In the wake of Wainwright, it remains unclear which waivers are to be evaluated under the Fay "deliberate bypass" standard and which under the Francis test, the contours of which await more precise definition. Separate concurrences in Wainwright by the Chief Justice and Mr. Justice Stevens shed light on the subject. Taking guidance from their opinions, as well as interpretations of Wainwright by the Second and Eighth Circuits, we discern that the Court is more apt to find a habeas petitioner bound by a bypass with respect to a strategic or tactical decision of the kind normally committed to counsel, than with respect to decisions of the sort entrusted to the defendant himself. *fn4" See Wainwright v. Sykes, supra, 433 U.S. at 91, n. 14, (Burger, C.J. concurring) (Stevens, J. concurring), Estelle v. Williams (1976) 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691, Ennis v. LeFevre 560 F.2d 1072 (2d Cir. 1977) slip op. at 5212, Rinehart v. Brewer (8th Cir. 1977) 561 F.2d 126, 130, n. 6.

 The Second Circuit has recently observed that while "the decision whether to take an appeal . . . is a critical one committed ultimately to the defendant himself, decisions concerning which legal issues will be urged on appeal are uniquely within the lawyer's skill and competence, and their resolution is ultimately left to his judgment." Ennis v. LeFevre, supra, 560 F.2d 1072, slip op. at 5212. In the absence of any showing of "cause" and "prejudice", Francis v. Henderson, supra, we find that petitioner is bound by his counsel's decision not to press the constitutional speedy trial issue on appeal. *fn5" See Ennis v. LeFevre, supra. Accordingly, we find that claim to be inappropriate for habeas review.

 (B). The Bruton Question

 The essence of petitioner's claim of impropriety in the summation and charge is that the prosecutor's reference to the confession of a severed co-defendant was impermissible under Bruton v. United States (1968) 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, and that the jury should have been instructed to that effect. The statement in question was Nathaniel Blair's admission: "I did the cab job . . ." (Trial Transcript at 368). At no point did Blair implicate petitioner. We find this claim to be wholly lacking in merit.

 In summary, we dismiss this petition for habeas relief. We decide the Bruton issue on the merits, dismiss the constitutional speedy trial claim for waiver of state remedy, and dismiss the remaining claims on the grounds ...

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