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SWEITZER v. HEWITT

October 8, 1980

Robert J. SWEITZER
v.
Lowell D. HEWITT



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

The present petition for a writ of habeas corpus comes before the court on exceptions filed to the report of U.S. Magistrate John Havas. The petitioner was convicted in the Court of Common Pleas of Blair County, Pennsylvania; in March of 1977 on charges of aggravated assault, robbery, theft and escape. On March 10, 1979, petitioner filed the present action attacking these convictions. He has specified three grounds: alleged violation by the trial court of Pa.R.Crim.P. 140(d) and 142 which relate to the timeliness of petitioner's preliminary hearing, alleged violation by the trial of Pa.R.Crim.P. 1100 which governs the timeliness of petitioner's trial, and the allegedly erroneous giving of an "accomplice charge" to the jury.

 The Magistrate has recommended denying the petition on two grounds. First, the Magistrate had indicated that the record fails to establish that the petitioner has exhausted his state remedies. Alternatively, the Magistrate reports that the errors relied upon by the defendants do not rise to constitutional dimension. The court disagrees and will grant the petition for habeas corpus for reasons that follow.

 I. Exhaustion of State Remedies

 The court is of the opinion that the record does not demonstrate a failure to exhaust state remedies. The Magistrate noted that the only documentation of direct appeal to the Supreme Court of Pennsylvania consists of a per curiam order dated November 20, 1978. The order remanded the case for failure to comply with Pa.R.A.P. 1115, but grants petitioner leave to file an amended petition for allowance of appeal. As the petitioner indicates, however, the Pennsylvania Supreme Court denied a subsequent petition for allowance of appeal on February 13, 1979. *fn1" Respondents do not deny this. Instead, they base their exhaustion argument on petitioner's failure to seek relief under the Pennsylvania Post Conviction Hearing Act (PCHA). The court cannot agree that the petitioner must pursue his PCHA remedy.

 This circuit has held resort to the PCHA unnecessary provided that the state has had one full opportunity to correct any errors of constitutional dimension. See United States ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir. 1978) (raising issue at trial and on direct review suffices to exhaust state remedies); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir. 1975) (PCHA remedy unnecessary after affirmance by Superior Court and denial of allocatur by Supreme Court); United States ex rel. Schultz v. Brierley, 449 F.2d 1286, 1287 (3d Cir. 1971) (exhaustion of "direct appellate remedies" obviates resort to PCHA). Because the court finds that the Pennsylvania courts have had an opportunity to correct the allegations of error, petitioner has exhausted his state remedies. Therefore, the court must proceed to an examination of the merits of petitioner's claims.

 II. Petitioner's Allegations of Error

 A. Timeliness of the Hearings

 In the first two grounds advanced by petitioner, he argues that his preliminary hearing and ultimate jury trial were untimely. In the case of his preliminary hearing, the petitioner alleges a violation of Pa.R.Crim.P. 140(d) (1) which requires that the preliminary hearing follow preliminary arraignment by a period more than three days but less than ten days. The rule, of course, permits extension for cause shown. Furthermore, Rule 142 permits continuances but adds a requirement of noting such continuances on the docket together with the reasons for granting the continuance. Petitioner alleged that the arraigning magistrate set a date for preliminary hearing, *fn2" and that the preliminary hearing occurred some three months after preliminary arraignment without compliance with either Pa.R.Crim.P. 140(d)(1) or 142. *fn3"

 Pa.R.Crim.P. 1100, on the other hand, requires commencement of trial within 180 days of the filing of the complaint unless the time is extended at Commonwealth request. The rule also excludes time from the 180 day calculation under circumstances not relevant here. Again petitioner alleges that the 180 day period had long expired before his trial commenced.

 For each of these timeliness claims the parties have briefed Pennsylvania law thoroughly. This energy, however, has been misdirected. Even if petitioner had suffered from an error of Pennsylvania law, such an error forms no basis for habeas corpus relief unless it results in custody violating the Constitution, law or treaties of the United States. Rose v. Hodges, 423 U.S. 19, 21, 96 S. Ct. 175, 177, 46 L. Ed. 2d 162 (1975); United States ex rel. Hayward v. Johnson, 508 F.2d 322 (3d Cir. 1975). In rare circumstances, a state trial error may vitiate the fairness of a trial, or constitute deprivation of due process. United States ex rel. Choice v. Brierley, 460 F.2d 68, 70-71 (3d Cir. 1972). United States ex rel. Cannon v. Maroney, 373 F.2d 908, 910 (3d Cir. 1967). Petitioner raises no such error in his timeliness claims. Unless the alleged defects in the Pennsylvania proceeding amount to deprivation of the Sixth Amendment right to a speedy trial, this court may grant no relief. *fn4" See United States ex rel. Little v. Twomey, 477 F.2d 767, 770 (7th Cir. 1973) (notwithstanding prisoner allegations of violation of state's speedy trial statute, federal court may consider only violation of federal constitutional right to speedy trial).

 Without a strong showing of prejudice, the length of delay between arrest and the probable cause hearing forms no independent basis for a Sixth Amendment claim. See United States ex rel. Williams v. Russell, 264 F. Supp. 505, 505-06 (E.D.Pa.1967). The delay alleged between arraignment and the preliminary hearing may be considered as part of the overall delay in bringing petitioner to trial because arrest triggers the Sixth Amendment speedy trial protection. Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). The court, therefore, finds that petitioner's first contention lacks merit. The court will, however, consider whether a speedy trial claim exists on the basis of the entire delay between arrest and trial.

 Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972) provides the starting point for any analysis of a speedy trial claim. Barker mandates striking a balance among several factors: the length of the delay, the reasons for the delay, defendant's assertion of the right, and prejudice to the defendant. Id. at 530, 92 S. Ct. at 2191. Of these factors, the length of delay constitutes a threshold inquiry; without a delay which is "presumptively prejudicial" in the "peculiar circumstances" of the case, other factors need not be weighed. Id. at 530-31, 92 S. Ct. at 2191-92.

 The court is satisfied that petitioner has passed this threshold inquiry. Although courts have postulated various delays as sufficient to trigger the balancing process, see, e.g., United States v. Parker, 586 F.2d 422, 430 (10th Cir. 1978) (five-month delay fails to trigger balance test); United States v. West, 164 U.S. App. D.C. 184, 504 F.2d 253, 256 (D.C.Cir.1974) (six-month delay triggers speedy trial), this court will eschew any attempt to quantify the minimum period which will trigger the inquiry. Rather, the court finds that an eleven-month delay in the circumstances of this case triggers review under the Barker test; the Commonwealth's ...


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