I. The Facts
Tully is presently incarcerated under an assumed name at an undisclosed location under the supervision of the United States Marshal's Service and the Witness Protection Program of the United States Department of Justice. He filed a petition for a writ of habeas corpus in this Court on December 13, 1977, alleging that the State of New Jersey had unconstitutionally denied him his right under New Jersey law to a sentence reduction hearing.
The sentence of which Tully complains was imposed on July 30, 1975 by the Honorable W. Thomas McGann, who was then a Judge of the Superior Court of New Jersey and who is now retired. Judge McGann was informed that Tully had entered into a plea agreement with the State that his sentence of imprisonment would not exceed twenty (20) years. Sentence (for four counts of murder and various other heinous criminal charges) was entered for an aggregate term of twelve (12) to fifteen (15) years imprisonment and was to run concurrently with a sentence of twelve (12) years imposed the previous day by the United States District Court on unrelated charges.
On August 8, 1975, Tully moved in a timely manner for a reduction of sentence pursuant to N.J.Ct. Rule 3:21-10, basing his motion upon his contention that the State had breached a plea bargain agreement. The history of Tully's sentence reduction application is set forth in the opinion of the Court of Appeals, Tully v. Scheu, 607 F.2d 31 (3d Cir. 1979), and will not be repeated at length here. Suffice it to say: By reason of the fact that Tully's then attorney could no longer represent him because his testimony would be required at the hearing, Judge McGann continued the hearing to a date long after the expiration of the 75-day period within which New Jersey's Court Rules require disposition of a sentence reduction application. When the matter finally came on for hearing on May 24, 1976, the State moved to dismiss the proceeding on the ground that the applicable Court Rule precluded acting on the motion after the lapse of seventy-five (75) days. Judge McGann denied the motion, but he was reversed by the Appellate Division of the Superior Court which, in turn, was affirmed by the New Jersey Supreme Court.
Thereafter, Tully's petition for habeas corpus was filed in the United States District Court.
This Court denied Tully's application. On the appeal from the order of denial the Court of Appeals reversed. It stated in its opinion: "New Jersey could not require Tully either to proceed with his original counsel, and thus be deprived of the lawyer's testimony concerning the facts of the plea negotiations, or to forgo counsel and proceed pro se, with his former attorney participating solely as a witness. . . . (W)e are persuaded that the effect of the New Jersey appellate decision that precluded the sentencing judge from deciding appellant's timely motion was to interfere with an individual right deemed paramount to state interests: the constitutional right to counsel at the sentence reduction hearing." 607 F.2d at 36.
Rather than directing that the writ of habeas corpus be granted forthwith, the Court of Appeals gave the State an opportunity to provide Tully with the equivalent of what he would have received had Judge McGann been permitted to proceed, namely, "a meaningful sentence reduction hearing". It was required that such hearing be held "within a reasonable time".
The mandate of the Court of Appeals was entered on September 26, 1979. Thereafter the State of New Jersey scheduled a new sentence reduction hearing for Tully, to be held on December 18, 1979.
On December 4, 1979, Tully filed a motion in this Court for an order granting his application for a writ of habeas corpus on the grounds that no sentence reduction hearing before the State court could be meaningful because:
11. Judge McGann retired from the bench on October 20, 1976, and, through no fault of petitioner's, is no longer available to preside at and to conclude petitioner's sentence reduction hearing;