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October 24, 1979

MACK STUBBS, Petitioner, against DAVID HARRIS, Superintendent, Green Haven Correctional Facility and Attorney General of the State of New York, Respondents.

The opinion of the court was delivered by: KNAPP

On December 8, 1972, at about 5:30 P.M., Ernest Ballestero was stabbed to death on a Brooklyn street. Two months later, petitioner Mack Stubbs was arrested and charged with Ballestero's murder. He was tried before a jury in State court, convicted, and sentenced to a term of fifteen years to life imprisonment, which he is presently serving. He now petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on two grounds. He claims that he was denied his right to a speedy trial in violation of the Sixth Amendment of the United States Constitution; and that his representation at trial by court appointed counsel was so ineffective and so clearly below the minimum standards of competence as to render the proceedings a farce and mockery of justice.

Petitioner's speedy trial claim is based on an eighteen month delay between arrest and trial during which time one David MacDougald who, according to petitioner, would have provided essential alibi testimony became unavailable through death. Petitioner's principal ineffective assistance claim is based on the assertion that his court appointed attorney did not properly prepare or even personally interview prior to the morning of the trial the one alibi witness who actually testified, with the consequence that the witness' testimony was wholly destroyed. For reasons that follow, we must reject both claims.

The State Court Proceedings

 On February 14, 1973 some two months after the event petitioner was arrested and charged with Ballestero's murder. He was arraigned on March 9, 1973, in New York Supreme Court, Kings County. Bail was set at $ 25,000, and an attorney, Barry Agulnick, Esq., was appointed by the court to represent him pursuant to Article 18-B, § 722, of the County Law of New York. Petitioner could not make bail and was remanded to the Brooklyn House of Detention. In May of that year, petitioner moved Pro se for a bill of particulars, and in June and August he moved, again Pro se, for a reduction of bail. These motions were denied. On August 24 petitioner's counsel made an omnibus motion for a bill of particulars, for discovery, and for the suppression of certain evidence. This motion was not decided until December 3. On October 1, counsel moved for the assignment of an investigator pursuant to Article 18-B, § 722, of the County Law, and on November 1 one Herman H. Race was appointed as such.

 On October 10, petitioner filed Pro se a habeas corpus petition with the Appellate Division, seeking his release on the ground that he was being denied his constitutional right to a speedy trial. On November 12, this motion was denied by the Appellate Division for failure to comply with New York Civil Practice Law and Rules § 7002, and referred to New York Supreme Court to be treated as an order to show cause why petitioner should not be released. On referral, the motion was denied on December 3 by order entered January 15, 1974.

 On November 26, 1973, petitioner had moved Pro se for a change of counsel. That motion was granted and new counsel, Barry Kamins, Esq. was assigned on December 18. On January 18, 1974, petitioner, Pro se, re-submitted to New York Supreme Court, Kings County, his habeas corpus petition based on the speedy trial claim. He was informed by the Court Clerk in a letter dated January 24 that the Court would not entertain Pro se applications by defendants who were represented by counsel, and that his motion papers had been forwarded to his attorney of record, Mr. Kamins. On July 16, the People stood ready to go to trial, but petitioner requested an adjournment because an alibi witness was on vacation. That request was granted and the trial began on August 26.

 At trial, the case against petitioner rested almost entirely on the testimony of two eye-witnesses, Lois Ormond and Hattie Freeman. These witnesses testified substantially as follows: they had met petitioner for the first time on December 7, 1972; on the following afternoon the day of the murder they had spent several hours in Ms. Freeman's apartment, drinking and socializing with petitioner, Ernest Ballestero (the deceased) and one James McNeil, allegedly a cousin of petitioner's; at about 5:30 P.M. the five decided to go out to buy food and more liquor; as they were walking in the street, they heard Ballestero exclaim "Oh"; they then saw petitioner pull a long knife out of Ballestero's chest; and petitioner thereupon ran down the street, shouting, "I got him; I got him." Neither Freeman nor Ormond saw the actual stabbing. James McNeil, allegedly the fifth member of the group, did not testify at trial. However, Freeman testified that she had seen McNeil a few weeks prior to trial, and Ormond testified that she had last seen him three or four months before the trial.

 In his defense, petitioner called a single witness, one Willie McNeil, who was no relation to James McNeil. Willie McNeil's direct testimony was to the effect that on December 8, 1972, the day of the murder, he had worked and socialized with petitioner from early in the morning until late in the evening; he and petitioner had been installing carpets in Jersey City and Newark, New Jersey, on that date; and after work at about 7:30 P.M., had gone to visit David MacDougald at the latter's home in Newark. McNeil explained that he was employed as a carpet installer by Perry Carpet Co., a Long Island firm, and that he in turn in December of 1972 had employed petitioner as his assistant. McNeil also testified that he had asked his employer to show him the route slips for December 8, 1972, to refresh his memory, but that he had been told that they no longer existed. Both the direct and cross examinations of McNeil were supposedly concluded on Friday, August 30. However, when court resumed on Tuesday, September 3, he was recalled by the People for further cross-examination. McNeil then testified that over the weekend he had discovered that his work records for December 8, 1972, in fact existed, and that he had consulted them. *fn1" McNeil then proceeded to admit error in having claimed to have worked in New Jersey on the day of the murder, since the records showed that he had been laying carpets in Brooklyn on that day. He insisted, however, that petitioner had been working with him albeit in Brooklyn rather than New Jersey at the time of the murder. He further testified that the New Jersey jobs to which he had originally referred had been performed on the following day, December 9. McNeil did not make any further reference, either on cross or re-direct examination, to any visit to MacDougald's home in Newark.

 MacDougald could not be called to testify because, according to petitioner, he had died in April of 1974, some fourteen months after petitioner's arrest, and four months before the trial.

 The jury found petitioner guilty of murder, and he was sentenced on October 7, 1974. On November 15, 1974, petitioner made a Pro se application to the Supreme Court, Kings County, to vacate judgment on several grounds directed to the weight of the evidence but not to denial of speedy trial or ineffective assistance of counsel. This motion was denied on March 11, 1975, by order entered March 21, 1975, on the ground that Coram nobis does not lie to correct such errors while an appeal is available or pending.

 On October 15, 1974, petitioner appealed to the Appellate Division from his conviction. On this appeal he was represented by Legal Aid counsel. Initially, the appeal was based on the grounds that petitioner had been denied effective assistance of counsel, that the two in-court identifications should have been suppressed, and that he had been unfairly prejudiced by the prosecutor's improper references to him. Subsequently, on June 22, 1976, the Appellate Division granted a motion by petitioner to enlarge the record on appeal to include the oral argument and decision on his speedy trial motion. *fn2" On March 21, 1977, the Appellate Division unanimously affirmed the judgment. People v. Stubbs (2d Dept. 1977) 56 A.D.2d 897, 393 N.Y.S.2d 41. Leave to appeal to the Court of Appeals was denied.


 A) The Speedy Trial Claim

 In Barker v. Wingo (1972) 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, the Supreme Court identified four factors to be applied and balanced by courts on an Ad hoc basis in determining whether a defendant has been deprived of his constitutional right to a speedy trial, 407 U.S. at 530, 92 S. Ct. at 2192: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." In the case before us, almost eighteen months elapsed between arraignment and trial. While this is a substantial period of time especially for a defendant forced to await trial in jail such a delay does not, without a showing of prejudice to the defendant or willfulness by the prosecution, automatically violate a defendant's speedy trial right. Considerably longer delays have been countenanced by the Court of Appeals for this Circuit. See, e.g., United States ex rel. Spina v. McQuillan (2d Cir. 1975) 525 F.2d 813 (twenty-six months); United States v. Nathan (2d Cir. 1973) 476 F.2d 456, 461, Cert. den. 414 U.S. 823, 94 S. Ct. 171, 38 L. Ed. 2d 56, 94 S. Ct. 123, 94 S. Ct. 124 2 (two years); United States v. Fasanaro (2d Cir. 1973) 471 F.2d 717 (four years); United States v. Saglimbene (2d Cir. 1972) 471 F.2d 16, Cert. den. (1973) 411 ...

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