The opinion of the court was delivered by: SHAPIRO
NORMA L. SHAPIRO, UNITED STATES DISTRICT JUDGE
This pro se petition for writ of habeas corpus, filed January 9, 1986, pursuant to 28 U.S.C. § 2254 (West 1977 and Supp. 1986) challenges the lawfulness of petitioner's confinement at the State Correctional Institution at Graterford, Pennsylvania. Petitioner contends that the conviction on which he is serving a six- to twelve-year sentence was obtained in violation of his Sixth Amendment right to a speedy trial and his Sixth Amendment right to effective assistance of counsel.
Petitioner was arrested on January 2, 1980, on charges of "rape, assault -- attempt, assault -- bodily injury, assault -- menace, aggravated assault -- attempt serious bodily insury, aggravated assault -- serious bodily injury, recklessly endangering another person, and terroristic threats." On July 9, 1980, a trial before the Honorable Louis D. Stefan, Court of Common Pleas, Montgomery County, resulted in petitioner's conviction of rape and simple assault -- menace. On February 17, 1981, Judge Stefan heard oral argument on post-verdict motions, which he denied on March 2, 1981. Judge Stefan sentenced petitioner on March 13, 1981, to not less than six nor more than twelve years' imprisonment on the rape count; he suspended sentence on the simple assault -- menace count. Petitioner timely filed a motion to reconsider the sentence; Judge Stefan denied that motion on March 23, 1981.
The Superior Count of Pennsylvania, on direct appeal, denied relief and affirmed the judgment of sentence. Commonwealth v. Cowgill, 309 Pa. Super. 622, 455 A.2d 208 (1983). Allocatur was denied by the Supreme Court of Pennsylvania on March 6, 1983.
Petitioner filed a habeas corpus petition with this court on June 18, 1984 (C.A. 84-2949). That petition was denied without prejudice on December 5, 1985, for failure to exhaust state remedies because the petition raised several issues not yet raised in the Pennsylvania courts. See Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1981); Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984).
Following the filing of this second petition, on January 9, 1986, the court referred the matter to Administrative United States Magistrate Tullio Gene Leomporra for report and recommendation. A motion to dismiss was filed by the district attorney of Montgomery County on February 21, 1987. Petitioner filed a "traverse" to the Commonwealth's motion on March 17, 1987. Upon consideration of the pleadings, memoranda, and the state court record in this matter, Administrative Magistrate Leomporra by Report and Recommendation of March 2, 1987, recommended that the petition for writ of habeas corpus be denied and dismissed without an evidentiary hearing. On March 9, 1987, petitioner filed timely objections to the administrative magistrate's Report and Recommendation. Pursuant to 28 U.S.C.A. § 636(b)(1) (West 1968 and Supp. 1987), this court must determine de novo the issues to which petitioner has objected.
The court approves and adopts Administrative Magistrate Leomporra's determination that petitioner had exhausted state remedies available at the time of his federal petition. Report and Recommendation at 3-4; see Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Brown v. Cuyler, 669 F.2d 155, 157 (3d Cir. 1982); 28 U.S.C.A. § 2254(b).
Petitioner objects to the administrative magistrate's finding that his speedy trial rights were not abridged. A balancing test applies. Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972) (well over five-year delay between arrest and trial extraordinary). Four factors to assess in determining whether a particular defendant has been deprived of his right to a speedy trial are: length of delay, reasons for the delay, defendant's assertion of his right, and prejudice to defendant. Id. at 530. The Supreme Court has stated that, "the length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case." Id. In Moore v. Arizona, 414 U.S. 25, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973) (per curiam), the Supreme Court reiterated the need to balance the factors enunciated in Barker. In Moore, the Supreme Court found a three-year delay from charge to trial to be a "close case under Barker v. Wingo " and remanded for further consideration of all of the Barker factors.
The reasons for delay in bringing petitioner to trial relate to the substantial backlog of criminal cases in the Montgomery County court system. While the problems in the court system may have been serious, they do not justify depriving an accused of his Sixth Amendment right to a speedy trial. Cf. Burkett v. Cunningham, 826 F.2d 1208, Slip Op. at 29-34 (3d Cir. 1987). The Constitution requires the Commonwealth to try an accused in a timely fashion. If the Commonwealth is unable to try an accused within the time permitted under the Sixth Amendment, charges would have to be dismissed. For example, the delay in the court system would not justify a delay of several years in bringing an accused to trial. However, the Constitution does not require that an accused be brought to trial within the 180 days that the Pennsylvania speedy trial statute requires.
In addition, petitioner has not made a sufficient showing of prejudice. Petitioner has not alleged that due to the delay his defense was any more difficult to present because of the unavailability of witnesses or their loss of memory. While a sufficiently long delay may constitute prejudice even where it does not result in impairment of a potential defense, see Barker, 407 U.S. at 532 (prejudice assessed inter alia in light of interest in avoiding oppressive pretrial incarceration and minimizing anxiety and concern of accused), the delay of 187 days did not.
Although petitioner's Sixth Amendment right to a speedy trial was not violated, the court is concerned with petitioner's contention that had he waived his right to a jury trial, he would not have been subject to the same delay. Petitioner is correct that "A defendant in a criminal proceeding is entitled to certain rights and protections which derive from a variety of sources. He is entitled to all of them; he cannot be forced to barter one for another. When the exercise of one right is made contingent upon the forbearance of another, both rights are corrupted." Petitioner's Memorandum of Law at 8 (citing United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3d Cir. 1977)). This court recognizes that the state court must exercise discretion in scheduling. However, no accused should be required to waive his or her right to trial by jury to receive a timely trial, but because petitioner received his trial by jury within the time required by the Sixth Amendment, neither of his rights was sacrificed.
Petitioner also objects to Administrative Magistrate Leomporra's determination that he was not denied his Sixth Amendment right to effective assistance of counsel. Petitioner ...