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November 21, 1986

MELVIN JAMES, Petitioner,
WALTER KELLY, Respondent

The opinion of the court was delivered by: WEXLER


WEXLER, District Judge

 Petitioner pro se Melvin James, has applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's application is denied.


 James was convicted, after a jury trial in County Court, Nassau County, of one count of murder in the second degree and two counts of assault in the first degree. Petitioner was sentenced on February 2, 1982, to an indeterminate term of 18 years to life for murder and two indeterminate terms of 4 to 12 years for assault, all sentences to run concurrently. On May 23, 1983, the Appellate Division of the Supreme Court of the State Of New York ("Appellate Division") unanimously affirmed the judgment of conviction, without opinion. Leave to appeal to the New York Court of Appeals was denied on July 7, 1983.

 On January 13, 1984, the Nassau County Court, in an unreported decision, denied James' post-judgment motion pursuant to New York Criminal Procedure Law ("CPL") 440.10 to vacate judgment. Leave to appeal to the Appellate Division was denied on July 7, 1984.

 On October 10, 1984, James filed his first habeas corpus petition in this Court alleging the following grounds for relief: (1) he was denied the right to a speedy trial as required by the Interstate Agreement on Detainers ("IAD"); (2) he was denied the effective assistance of trial counsel; (3) the prosecution suppressed exculpatory evidence; (4) the trial court lacked jurisdiction because the indictment failed to allege an essential element of the crimes charged; and (5) identification evidence was improperly admitted at trial. On February 7, 1985 this Court dismissed that petition, without prejudice, ruling that petitioner had failed to exhaust his state court remedies with respect to his claim alleging a violation of the IAD.

 James then moved in the County Court of Nassau County for an order vacating judgment. James' motion was denied on September 11, 1985. On January 13, 1986, the Appellate Division denied James' application to appeal the denial of his motion to vacate judgment.

 In the instant petition, petitioner raises the same five grounds for relief enumerated above. In addition, petitioner alleges: (1) he was denied the right to compulsory process and the right to present evidence favorable to his defense; and (2) the verdict was against the weight of the evidence.


 On November 8, 1979, James, accompanied by Dorothea Hunter, attended a concert at the Nassau Coliseum featuring a musical group called "The Jackson Five." One Clinton Barnes, accompanied by Angela Fowler, also attended this concert. The two couples ran into each other while at the Nassau Coliseum that evening. Barnes and Hunter began to argue about money that Hunter allegedly stole from Barnes. James agreed to meet Barnes following the performance to discuss the matter further.

 After the concert, James and Barnes met near the main entrance to the coliseum. The two men began to argue and a struggle ensued. Jimmy Valentino Miles, a friend of James, was also present during the confrontation. James allegedly drew a gun, which had been wrapped in a white jacket, shot Barnes at close range, dropped the white jacket, fired two more shots at Barnes, and then disappeared into the crowd. As a result of the shooting Barnes was killed and one of the three shots fired into him exited his body and lodged in the arm of Belinda Rivers, an uninvolved bystander.

 After the shooting, James and Miles, as well as others who had accompanied them to the concert, fled from the crime scene. James, while living under an assumed name, was arrested and convicted in Georgia on an unrelated charge. On October 14, 1980, the Nassau County Police Department discovered James' presence in a Georgia facility and on the following day sent a warrant to be lodged against him as a detainer. On November 12, 1980, the Nassau County District Attorney sent a request for temporary custody to the Georgia authorities. On December 10, 1980, James was granted parole in Georgia and waived extradition to New York. James' parole became effective on December 22, 1980. On or about that date he was taken from Georgia by the Nassau County Police Department and brought to New York to stand trial.

 At his trial, James argues that Miles had in fact done the shooting. James claimed that as he was retreating from his struggle with Barnes, Miles obtained a gun from the trunk of his car and shot Barnes three times.


 As a first ground for relief, petitioner claims his right to a speedy trial under the IAD, 18 U.S.C. App. 2, has been violated. Congress enacted the IAD in 1970. The purpose of the IAD is to effectuate the "expeditious disposition" of charges outstanding against a prisoner already incarcerated in another jurisdiction, and to "provide cooperative procedures among member states to facilitate such disposition." United States v. Mauro, 436 U.S. 340, 351, 98 S. Ct. 1834, 1842, 56 L. Ed. 2d 329, (1978). The federal government, forty six states and the District of Columbia have entered into agreements under the IAD.

 Article IV of the IAD provides the means by which the "receiving" state can secure the availability of a prisoner, incarcerated in the "sending" state, against whom a detainer has been lodged. Subdivision (C) of Article IV limits the receiving states ability to hold the prisoner pending a disposition. Subdivision (C) provides:

 In respect of any proceeding made possible by this Article, trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary and reasonable continuance.

 18 U.S.C. App. § 2 (IV)(c)(1982); N.Y. Crim. Proc. Law § 580.20(IV)(C)(1984).

 Article VI of the IAD contains a tolling provision applicable to Article IV. Article VI(a) reads:

 In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled wherever and for so long as the prisoner is unable to start trial, ...

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