The opinion of the court was delivered by: Wexler, District Judge.
Presently before the Court is the habeas petition of David Wood
pursuant to 28 U.S.C. § 2254. For the reasons that follow, the
petition is denied.
On September 10, 1983, in Baldwin, New York, petitioner killed
Debra Drysdale and Douglas McMullen by shooting each three times
at close range with a .357 Magnum handgun. Subsequently,
petitioner turned himself in to the police and admitted
committing these crimes.
On September 15, 1983, petitioner was charged by Nassau County
Indictment 57484 with two counts of intentional murder in the
second degree and two counts of criminal possession of a weapon
in the second degree, pursuant to New York Penal Law § 125.25
and New York Penal Law § 265.03 respectively. Following a jury
trial, petitioner was convicted of all of the counts in the
indictment. On June 12, 1984, he was sentenced to consecutive
indeterminate prison terms of twenty years to life on each of the
murder convictions and concurrent indeterminate terms of
imprisonment of five to fifteen years on each conviction of
criminal possession of a weapon in the second degree.
Petitioner appealed from his conviction to the New York State
Supreme Court, Appellate Division, Second Department (hereinafter
"Appellate Division"), raising three grounds. Petitioner claimed
that he was denied a fair trial because, on the day the trial was
to begin, the court denied him a two-week continuance so that he
could have a particular psychiatrist, Dr. Wroth, testify on his
behalf. Defendant further claimed that he was denied due process
and was convicted in violation of the Double Jeopardy Clause when
the trial judge sent the jury back to continue deliberations
because the form of the verdict was not in accordance with the
court's instructions. Finally, petitioner argued that his
sentence was excessive. In an order and decision dated April 6,
1987, the Appellate Division modified petitioner's sentence, by
ordering that the sentence imposed on the murder convictions run
each other instead of consecutively, and otherwise unanimously
affirmed petitioner's conviction. People v. Wood, 129 A.D.2d 598,
514 N.Y.S.2d 93 (2d Dept. 1987).
By letter dated June 9, 1987, petitioner applied to the New
York Court of Appeals for permission to appeal from the Appellate
Division's decision affirming his judgment of conviction. In that
application, petitioner raised only the first claim that he
raised in the Appellate Division — that he was denied a fair
trial because the court refused to grant a two-week continuance
to secure the presence of Dr. Wroth, who petitioner sought to
call as a witness. Petitioner did not argue in his application to
the Court of Appeals, as he did in the Appellate Division, that
having the jury sent back to correct its verdict denied him a
fair trial and violated the Double Jeopardy Clause. In an order
dated August 19, 1987, Judge Richard D. Simons denied
petitioner's application for permission to appeal to the Court of
Appeals. People v. Wood, 70 N.Y.2d 719, 519 N.Y.S.2d 1055,
513 N.E.2d 1323 (N.Y. 1987).
On December 23, 1997, following respondent's motion to dismiss
the instant petition as untimely, this Court issued a memorandum
and order dismissing the petition as time barred. In light of
Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), the United States
Court of Appeals for the Second Circuit vacated this Court's
decision and remanded the case for further proceedings. Wood v.
Artuz, No. 98-2124 (2d Cir. Sept. 25, 1998).
In his present application, petitioner raises two claims.
First, he contends that the trial court's denial of the
continuance denied him a fair trial and due process. Second, he
contends that the court's decision to send the jury back to
correct the form of the verdict violated his right to due process
and his right not to be twice placed in jeopardy for the same
I. PETITIONER'S CONSTITUTIONAL RIGHT TO DUE PROCESS WAS NOT
VIOLATED WHEN, ON THE DAY THE TRIAL WAS SET TO BEGIN, THE COURT
DENIED PETITIONER'S REQUEST FOR A TWO-WEEK CONTINUANCE
As a general rule, a motion for adjournment at the start of
trial is addressed to the sound discretion of the trial judge. To
show abuse of that discretion, the defendant must demonstrate
both that the court's denial of a continuance was arbitrary and
that the denial substantially impaired his defense. See United
States v. Edwards, 101 F.3d 17, 18 (2d Cir. 1996); United
States v. King, 762 F.2d 232, 235 (2d Cir. 1985).
Although a defendant has a fundamental constitutional right to
present witnesses in his defense, Chambers v. Mississippi,
410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), nevertheless the
question of whether to grant a continuance in order to facilitate
the calling of a particular witness falls under the general rule.
King, 762 F.2d at 235. Applying the general rule stated above
in the context of a denial of a continuance to secure a witness,
courts have looked to four factors: (1) whether due diligence was
exercised to obtain the witness; (2) whether substantial
favorable evidence would be offered by the witness; (3) whether
the witness is available and willing to testify; and (4) whether
the denial of the continuance would materially prejudice the
defendant. See United States v. Rodriguez, 15 F.3d 408, 411
(5th Cir. 1994); United States v. O'Neill, 767 F.2d 780, 784
(11th Cir. 1985); United States v. Walker, 621 F.2d 163, 168
(5th Cir. 1980).