delayed arraignment, not on a delay in commencing trial. The D.A. further avers that any delay is attributable to petitioner's refusal to be arraigned.
In Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), the Supreme Court articulated a four-factor test for assessing alleged violations of a criminal defendant's Sixth Amendment right to a speedy trial. These factors are: (1) the length of the delay; (2) the reasons for the delay; (3) whether or not the defendant asserted his right; and (4) prejudice to the defendant. See id. at 530-33. No single factor possesses "talismanic effect," nor is any one factor a "necessary or sufficient condition to the finding of a deprivation of the right of a speedy trial." Id. at 533.
In this case, the length of delay, eighteen months, was considerably shorter than the delays in other cases where courts found no Sixth Amendment violation. See, e.g., United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (delay of twenty-four months is considerably shorter than in cases finding no Sixth Amendment violation); Flowers v. Warden, 853 F.2d 131, 134 (2d Cir.) (no Sixth Amendment violation where sole reason for seventeen month delay in processing defendant's case was court docket congestion), cert. denied, 488 U.S. 995, 102 L. Ed. 2d 588, 109 S. Ct. 563 (1988); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (same principle). Moreover, although the cause of delay is uncertain, nothing in the record suggests that the State of New York intended to delay the trial in this case or that the prosecutor obtained any strategic advantage from the delay. See Barker, 407 U.S. at 531. In addition, Mr. Holmes did not assert his right to a speedy trial until the eve of his second trial. "Although the failure to assert the right does not act as a waiver, such failure will make it difficult for a defendant to assert his right successfully at some later point in time." Rayborn v. Scully, 858 F.2d 84, 92 (2d Cir. 1988), cert. denied, 488 U.S. 1032, 102 L. Ed. 2d 974, 109 S. Ct. 842 (1989); see also Barker, 407 U.S. at 528, 534. Finally, petitioner has not presented any evidence that the delay in commencing his first trial prejudiced his defense. See Rayborn, 858 F.2d at 93; see also United States v. Blanco, 861 F.2d 773, 780 (2d Cir. 1988) ("Since delay can just as easily hurt the government's case, [petitioner's] general claim that the delay impaired her defense also lacks force."), cert. denied, 489 U.S. 1019, 103 L. Ed. 2d 200, 109 S. Ct. 1139 (1989). In fact, Mr. Holmes has not provided any basis for finding that any of the Barker factors should be construed in his favor; petitioner has not even cited the court's decision in Barker. Given that Mr. Holmes successfully had his first conviction overturned, it is difficult to perceive how any delay associated with this first proceeding could constitute prejudice that affected his second trial. See Rayborn, 858 F.2d at 94 ("Courts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice.").
5. Restrictive Cross-Examination
Mr. Holmes asserts that the trial court erred in restricting his counsel's ability to cross-examine Detective Farrell. Petitioner is entitled to review on the merits of this claim. Mr. Holmes has raised this issue on direct appeal and in all three habeas petitions. Thus, it is exhausted and not subject to dismissal due to abuse of the writ. Moreover, he never received a review on the merits of this claim because his prior two petitions were dismissed as "mixed petitions" due to the supposed presence of unexhausted claims. This claim, therefore, is not susceptible to dismissal under 28 U.S.C. § 2244(b) and Rule 9(b).
For the reasons stated above, the claims in Mr. Holmes' petition for a writ of habeas corpus -- the Second Circuit brief claim, as well as those claims based upon allegedly impermissible in-court identifications, denial of a speedy trial, and ineffective assistance of counsel -- are DENIED. The petition is referred to Magistrate Judge Roberts to assess the merits of the sole potentially viable ground in this petition -- that the trial court erred in restricting the cross-examination of Detective Farrell.
DATED: January 15, 1993
New York, New York
David N. Edelstein