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WORD v. UNITED STATES

August 27, 1985

JERRY WORD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: POLLACK

POLLACK, Senior District Judge:

Jerry Word, pro se, moves, pursuant to 28 U.S.C. § 2255, to vacate and set aside his sentences, primarily on the ground that he was tried within 30 days of a suppressing indictment, allegedly in violation of 18 U.S.C. § 3161(c)(a) of the Speedy Trial Act. For the reasons set forth below, petitioner's motion will be denied.

 On September 8, 1982, petitioner was arrested while attempting to purchase heroin from a government agent. On September 16, 1982, the Grand Jury indicted petitioner on one count of conspiracy to possess heroin with intent to distribute, in violation of 21 U.S.C. § 846; the indictment specified seven overt acts in furtherance of a conspiracy which extended from August 1, 1982, through September 7, 1982. The Grand Jury also indicted Word on one court of attempted possession of one kilogram of heroin with intent to distribute, also in violation of § 846. On November 4, 1982, the government filed a superseding indictment, enlarging the conspiracy, alleging that it commenced on May 1, 1981, and adding three overt acts. The November 4th superseding indictment re-indicted Word on the attempted possession charge.

 Trial on the superseding indictment began on November 29, 1982; on December 1, 1982, the jury returned a verdict of guilty on both the conspiracy and attempt counts. The Court sentenced Word to concurrent 15-year prison terms on each count, a $50,000 fine on each count, and ten years of special parole on the attempt count. In an unpublished opinion, the Court of Appeals affirmed. See United States v. Word, 742 F.2d 1444 (2d Cir. 1983). Subsequently, petitioner filed a pro se § 2255 motion with this Court, raising numerous grounds to vacate his convictions. The Court denied the petition and the Court of Appeals affirmed. See Word v. United States, 762 F.2d 991 (2d Cir. 1985).

 At the time of the petitioner's arrest on September 8, 1982, petitioner filed an affidavit, professing financial inability to retain counsel. On September 8, 1982, counsel was appointed to represent petitioner. On November 28, 1982, the day before the trial was scheduled, the Court received a letter from Wilfred Rice, who claimed that "effective 11-23-82" Word's family had retained him to represent Word. Rice requested a three week adjournment for trial preparation and to accommodate "prior commitments." The Court refused to adjourn a trial date which had been set for two months. Word went to trial, on November 29, with his court-appointed attorney.

 Word now claims that the Court violated his Sixth Amendment right to effective assistance of counsel by denying the three week continuance and denying petitioner counsel of his choice. However, petitioner raised three claims on direct appeal and the Court of Appeals rejected them, holding,

 
"The decision whether to grant a continuance is committed to the sound discretion of the trial judge . . . and the denial of the continuance in the circumstances of this case was a proper exercise of that discretion . . . [Furthermore, Word's] contention that appointed counsel was forced upon him since he could afford to retain counsel is frivolous. Counsel was appointed upon Word's sworn representation that he had no assets with which to retain an attorney."

 Since Word had a full and fair opportunity to litigate these claims on appeal, he is barred from relitigating them on this motion. See Chin v. United States, 622 F.2d 1090 (2d Cir. 1980), cert. denied, 450 U.S. 923, 67 L. Ed. 2d 353, 101 S. Ct. 1375 (1981).

 Petitioner also claims that the Court's refusal to grant a continuance violated 18 U.S.C. § 3161(c)(2). That section provides in pertinent part:

 
"Unless the defendant consents in writing to the contrary, the trial shall not commence less than thirty days from the date on which the defendant first appears through counsel or expressly waives counsel and elects to proceed pro se."

 Petitioner claims that the Court erred in commencing the trial within thirty days of the superseding indictment. Petitioner did not raise this issue at trial or on appeal, although, ironically, he did argue that the government took too long in bringing him to trial, in violation of 18 U.S.C. § 3161(c)(1). Both this Court and the Court of Appeals rejected that argument.

 Petitioner has waived his right to press the § 3161(c)(2) claim on this motion by not raising it at trial. A claim under § 3161(c)(2) may be raised only upon motion of the defendant before or at trial. See 18 U.S.C. § 3161(a)(2) ("If a defendant is not brought to trial within the time limit required by section 3161(c) . . . the information or indictment shall be dismissed on motion of the defendant") (emphasis added).

 Furthermore, there is no reason to depart from the usual rule that petitioner waives a claim unless it has been presented at trial, absent "cause" excusing the procedural default and "actual prejudice" resulting from the default. See United States v. Frady, 456 F.2d 152, 168 (1982). Cf. United States v. Samples, 713 F.2d 298 (7th Cir. 1983) (failure to raise a claim under 18 U.S.C. § 3161(d)(1), waives claim). But see United States v. Daly, 716 F.2d 1499 (9th Cir. 1983), cert. denied, 465 U.S. 1075, 104 S. Ct. 1456, 79 L. Ed. 2d 773 (1984). Petitioner has not alleged any cause for failing to raise the issue, especially in light of the fact that petitioner did raise the § 3161(c)(1) claim at trial. Similarly, petitioner has not alleged that the error "worked to his actual and substantial disadvantage." Frady, 456 U.S. at 170 (emphasis in the original).

 In any event, petitioner's contentions fail on the merits. Petitioner urges this Court to adopt the per se rule, accepted by the Ninth Circuit in United States v. Harris, 724 F.2d 1452 (9th Cir. 1983), "guaranteeing that the defendant is not forced to trial less than thirty days from the date on which the defendant first appears on the indictment on which the defendant ultimately goes to trial." Id. at 1455 (emphasis in the original). See also United States v. Daly, 716 F.2d 1499, 1506 (9th Cir. 1983), cert. denied, 465 U.S. 1075, 104 S. Ct. 1456, 79 L. Ed. ...


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