Appeal from a judgment of the United States District Court for the Southern District of New York (Ward, J.) dismissing appellant's 28 U.S.C. § 2254 petition for a writ of habeas corpus. Appellant claimed his constitutional right to a speedy trial was violated by seven year pre-trial delay. Affirmed.
Oakes, Meskill and Pierce, Circuit Judges.
Henry Rayborn appeals from a judgment of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, dismissing his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Rayborn contended before the district court that the January 26, 1979, judgment of a New York state court convicting him of second-degree murder was unconstitutional because, inter alia, New York state authorities had violated his sixth amendment right to a speedy trial. The district court dismissed Rayborn's petition by memorandum decision dated July 1, 1987, but granted a certificate of probable cause to appeal to this Court. Despite the considerable pre-trial delay in this case, after reviewing the relevant Barker v. Wingo factors, we affirm the dismissal of appellant's petition for a writ of habeas corpus.
On September 9, 1971, Jesse Lee Starks was shot to death in his basement apartment in New York City. Shortly after the Starks homicide, Philadelphia police sent a letter to New York police informing them that they had arrested Henry Rayborn, a suspect in the New York murder case, on an unrelated Philadelphia homicide charge. On October 5, 1971, the Criminal Court of the City of New York issued a warrant for Rayborn's arrest.
Detective Dominick Bologna of the New York City Police Department travelled to Philadelphia the same day and attempted unsuccessfully to execute the arrest warrant on the morning of October 6, 1971. Apparently, Rayborn had been released by the city authorities soon after his September arrest on the Philadelphia homicide charge. After this unsuccessful attempt to locate and arrest Rayborn, Detective Bologna filed the warrant with the Philadelphia Court of Common Pleas, in which Rayborn's local homicide charge was pending, and returned to New York. That same day, Rayborn failed to appear in court in connection with the Philadelphia homicide charge, and that court issued a bench warrant for his arrest.
Other than the events recited above, it is unclear what, if any, additional investigative efforts transpired between September 9, 1971, and July 1974. On July 12, 1974, under circumstances unknown to us, Rayborn was rearrested by the Philadelphia police. Two weeks later, on July 26, 1974, an indictment was filed in New York charging Rayborn with the intentional murder of Jesse Lee Starks in 1971 and unlawful possession of a weapon. Within a week, New York State Supreme Court, New York County, issued a warrant for Rayborn's arrest, based on the July 26th Starks homicide indictment. Although Rayborn apparently had been released again from custody sometime after his arrest on July 12, 1974, in Philadelphia, local police there rearrested Rayborn on the New York warrant one day after it was issued, on July 31, 1974. It appears that Rayborn was informed on that day, for the first time, of the pending New York homicide charge. Rayborn subsequently refused to waive extradition, and the New York County District Attorney's Office commenced extradition proceedings thereafter.
On or about October 30, 1974, the District Attorney's Office obtained an extradition warrant for Rayborn. However, because extradition papers had not been prepared early enough, the Governor of Pennsylvania did not sign them into effect before the expiration of a statutory 90-day period for the submission of such papers. As a result, the Philadelphia court had to release Rayborn on bail in late October 1974. See 42 Pa. Cons. Stat. Ann. §§ 9136, 9138 (Purdon 1982 & Supp. 1988) (incarcerated suspect must be released from custody if state having jurisdiction of the offense allegedly committed by suspect has not filed governor's warrant within 90 days of suspect's incarceration).
In early November 1974, unaware of Rayborn's release, two New York detectives and a New York Assistant District Attorney ("ADA") travelled to Philadelphia to take Rayborn into custody, only to discover that he had been released. At that time, the officers learned that Rayborn was due to appear before the United States District Court for the Southern District of New York in early 1975 in connection with a federal narcotics charge that had been pending against Rayborn since 1966. See United States v. Henry Collins Rayborn, et al., No. 66 Crim. 463 (1966-76, S.D.N.Y.). In either January or February of 1975, however, Rayborn failed to appear in the New York federal court and disappeared.
The record is silent with respect to the period that follows next, between February 1975 and March 1976. On April 23, 1976, however, Rayborn was arrested again in Philadelphia, approximately 14 months after his failure to appear in federal district court. Shortly thereafter, Philadelphia authorities informed New York authorities that Rayborn was once again in custody. Since Rayborn was still opposing extradition to New York at that point, New York and Philadelphia authorities agreed that the latter would prosecute Rayborn first on the Philadelphia homicide charge.
Both the Philadelphia and federal charges against Rayborn were concluded over the course of the next six months. On August 16, 1976, Rayborn pleaded guilty to manslaughter in the Philadelphia Court of Common Pleas. On September 28, 1976, after having been arraigned in New York earlier in July, Rayborn was produced in the United States District Court for the Southern District of New York and pleaded guilty to the illegal sale of heroin in violation of 21 U.S.C. §§ 173 and 174. On or about October 16, 1976, Rayborn was sentenced to a one-to-ten year term of imprisonment on his Philadelphia homicide charge and was committed shortly thereafter to a Pennsylvania State Correctional Institution. On November 16, 1976, Rayborn was returned to New York and sentenced in federal district court to an indeterminate term of not more than five years on his federal narcotics charge, to run consecutively to the state sentence.
On March 22, 1977, Rayborn was delivered to the Bureau of Prisons to begin serving his federal sentence at the United States Penitentiary in Lewisburg, Pennsylvania; subsequently, he was transferred to the United States Penitentiary in Atlanta, Georgia on June 21, 1977, where he remained until October of 1978.
During the period from approximately mid-1976 to April 1978, while Rayborn was serving his sentences, a series of clerical mishaps occurred in the New York District Attorney's Office, and as a result, Rayborn's case was lost in bureaucratic limbo. During 1976, his case was reassigned several times within the District Attorney's Office. Because one of the reassignments was not recorded in the proper files, no particular ADA had responsibility for the case until April 1978, and, as a result, no action was taken by the District Attorney's Office during that period in connection with Rayborn's case.
This lack of oversight continued even though between November 1976 and April 1978 the Philadelphia District Attorney's Office and prison officials at the federal penitentiary in Atlanta attempted to contact the New York District Attorney's Office in order to determine whether it intended to file a detainer against Rayborn while he was in custody. During this period, in September 1977, Rayborn wrote to the District Attorney's Office from federal prison requesting that he be tried on the 1974 indictment, but that office apparently misplaced the letter. On April 7, 1978, after receiving no response to his letter from the New York District ...