The opinion of the court was delivered by: WEXLER
This is an action for a writ of habeas corpus brought under 28 U.S.C. Section 2254.
On June 4, 1975, petitioner was convicted, following a jury trial, by the New York Supreme Court, Richmond County, on charges of sale and possession with intent to sell heroin.
The New York Supreme Court, Appellate Division, thereafter appointed a series of counsel to represent petitioner on appeal. The appeal was not perfected until late in 1979. Petitioner alleges that this delay was caused by "his indigency, inefficiency of his assigned counsel, and negligence or indifference by the Appellate Division of the New York State Supreme Court, who supervises appellate counsel". Respondent contends that "the delay was largely caused by unfortunate circumstances", and that two years of the delay occurred because the first two attorneys appointed to represent petitioner discovered the existence of conflicts of interest.
On March 17, 1980, the Appellate Division reversed petitioner's conviction and ordered a new trial, primarily on the grounds that petitioner had been denied a public trial. People v. Cousart, 74 A.D.2d 877, 426 N.Y.S.2d 295 (1980). Although petitioner argued in his brief submitted to the Appellate Division that "summary reversal and dismissal of the indictment are mandated as a result of the inordinate delay in the perfection of this appeal", the Appellate Division's only comment on this contention was "we do not reach defendant's other contentions except to note that summary reversal is not required."
On September 18, 1980, petitioner moved that his indictment be dismissed by the New York Supreme Court, Richmond County, "on the grounds of denial of a speedy trial and/or in the interests of justice". In affirmations made in support of this motion, petitioner's counsel argued that dismissal of the indictment was required under the Sixth Amendment right to a speedy trial and the right to effective assistance of counsel, and in the interests of justice. Petitioner's counsel further argued that several defense witnesses who had testified at the first trial were no longer available as a result of the delay, and that a confidential informant (who, according to the prosecution's contentions at the first trial, introduced petitioner to an undercover officer with whom petitioner engaged in an illegal transaction involving the sale of drugs) had become unlocatable due to the delay, and so could not be produced by the prosecution if such production was deemed appropriate by the court at a retrial.
Petitioner's counsel alleges in an affidavit (submitted in connection with the instant petition) that, after the motion papers were filed, numerous conferences between the judge handling the motion and attorneys for both sides were held which were not transcribed; that at these conferences petitioner's counsel argued that a retrial would violate petitioner's right to due process and equal protection; that the judge stated at one of these conferences that there was no question in the judge's mind that petitioner's due process and equal protection rights were violated, and also stated that he was inclined to grant the motion; that on October 27, 1980, an extended colloquy was held in open court which petitioner's counsel unsuccessfully requested be placed on the record; and that during this colloquy, the judge stated that he would deny the motion because he believed that he lacked jurisdiction to dismiss an indictment for a delay in an appeal, and that in his opinion only the Appellate Division had jurisdiction because the basic issue was the delay in the appeal. Respondent's counsel alleges in an affidavit (submitted in response to the affidavit of petitioner's counsel, pursuant to an order of this Court to submit such a response) that she contacted both the judge in question and the Assistant District Attorney who participated in said conferences, and that neither have any recollection of due process arguments having been raised. In any event, the judge denied the motion to dismiss the indictment on October 27, 1980. On December 18, 1980, the judge issued an opinion reading in its entirety as follows:
This court finding no merit in defendant's arguments, denies his motion for dismissal of the indictment on the ground of denial of a speedy trial. The court also denies defendant's motion for dismissal of the indictment in the interests of justice.
Let this constitute the order of the court.
On October 27, 1980, immediately following the denial of the motion to dismiss the indictment, petitioner pled guilty to one count of the indictment. Petitioner was sentenced to five and one-half years to life.
Petitioner then appealed from his conviction to the Appellate Division. In petitioner's brief submitted to the Appellate Division, petitioner argued that the indictment should have been dismissed, citing petitioner's constitutional rights to a speedy trial, due process, equal protection, and effective assistance of counsel. The State of New York, in its brief submitted to the Appellate Division, did not suggest that petitioner had waived the right to assert these arguments. On December 7, 1981, the Appellate Division unanimously affirmed the conviction without opinion. People v. Cousart, 85 A.D.2d 932, 447 N.Y.S.2d 84 (1981).
Petitioner then appealed to the New York Court of Appeals. In petitioner's brief submitted to the Court of Appeals, petitioner raised essentially the same arguments as were raised before the Appellate Division. Further, in discussing the denial of the motion to dismiss the indictment, petitioner stated in his brief submitted to the Court of Appeals:
The court's memorandum decision and order contained no findings or conclusions in support thereof except, "finds no merit in defendant's arguments." (A-32) The record contains no further elucidation. Counsel is constrained not to include in this brief colloquy that does not appear on the record, but will supply same to this court on oral argument, only if requested to do so.
Petitioner's Brief Submitted to the New York Court of Appeals, page 6, note 6. The State of New York, in its brief submitted to the Court of Appeals, did not suggest that petitioner had waived the right to assert any of the arguments raised in petitioner's brief.
On December 14, 1982, the Court of Appeals affirmed the conviction, in an opinion by Judge Jasen, concurred in by Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuschberg, and Meyer. People v. Cousart, 58 N.Y.2d 62, 444 N.E.2d 971, 458 N.Y.S.2d 507 (1982). The opinion rejected on the merits petitioner's claim that his right to a speedy trial under the Sixth Amendment had been violated. The opinion stated that petitioner "was accorded a prompt trial which resulted in his conviction. At that point, the concerns addressed by the Sixth Amendment were served." The opinion also stated that "the State due process requirement of a prompt prosecution is broader than the right to a speedy trial guaranteed by . . . the Sixth Amendment." The opinion went on to state:
The defendant does argue that he was prejudiced in regard to his retrial because several witnesses disappeared during the five-year period his appeal was pending. Had he properly raised this claim to the trial court by asserting a violation of his due process rights, rather than his speedy trial rights, a hearing could have been held to determine the validity of this claim and whether the prejudice was attributable to the delay in the appellate process. In this case, defendant raised only claims that the indictment should be dismissed because his speedy trial right had been violated and that the interests of justice required dismissal of the indictment. This did not properly alert the court to claims of due process violations, or that a hearing might be required. Indeed, the only reference to due process in the motion are as it would relate to defendant's speedy trial rights.
Had the defendant properly alerted the court to potential due process violations, a hearing could have evaluated the claimed prejudice. This court cannot assume, without the benefit of a record compiled at such a hearing or at the retrial, that any prejudice did result. While the disappearance of key witnesses may well amount to prejudice, such cannot be assumed in this case where all those ...