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October 28, 1982

JULIUS C. TAYLOR, Petitioner,

The opinion of the court was delivered by: BROTMAN

 This is an action for a writ of habeas corpus, 28 U.S.C. § 2254, currently before the court on petitioner's motion for reargument. In an opinion and order filed March 29, 1982, we granted respondents' motion for summary judgment and dismissed the petition. On May 21, 1982, we permitted petitioner to present reargument on the motion. Petitioner has confined his reargument to the issue of ineffective assistance of counsel. See our prior opinion at 4-5.

 The central argument made by petitioner is that the court incorrectly deferred to the state trial court's legal conclusions, rather than independently applying the federal standard for competency of counsel to the factual findings of the state court. In this respect we agree with petitioner. In assessing the claim of ineffective assistance, we stated that the state court's finding that petitioner's trial attorney was competent was "fairly supported by the evidence," and we declined to disturb it. On reconsideration, we believe that we misapplied § 2254(d)(8) to the state court's "finding" of effective assistance. Effective assistance of counsel presents a mixed question of law and fact. Davis v. Heyd, 479 F.2d 446, 450 (5th Cir. 1973). "The 'factual' determinations made by state . . . courts which federal courts must presume to be correct do not include mixed questions of fact and law." Townsend v. Sain, 372 U.S. 293, 309 n.6, 318, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963); Mason v. Balcom, 531 F.2d 717, 721 (5th Cir. 1976). Thus the court is required to defer to the factual findings of the state trial court, but must also determine anew whether the federal legal standard for effective assistance of counsel has been satisfied. Eldridge v. Atkins, 665 F.2d 228 (8th Cir. 1981).

 The crime took place on December 4, 1974, at the premises of a vending machine business establishment on Route 130 in Pennsauken, New Jersey. There were five eyewitnesses, three of whom saw all three of the criminals. These three witnesses were Patrick Caridy, Mildred Caputi, and "J. D." The other two, Jimmy D'Alessandro and John Wagner, saw only one of the three robbers. (T at 423-25, 433).

 Caridy, Caputi and "J.D." testified that three armed men arrived at 10:25 - 10:35 A.M. Caridy and Caputi were tied up, while "J.D." was instructed to show the robbers around the building. One man took "J. D." into the bathroom and raped her. Afterwards, she was tied next to the other victims. The rapist left the scene at about 10:50 A.M. in a vehicle which none of the victims saw. The other two men loaded stolen coins and cigarettes into a van owned by the business, and left in the van approximately ten minutes later.

 After the men left, the victims untied themselves and telephoned the police. The call was received at 11:08 A.M. After the police arrived, Caridy, Caputi and "J. D." gave the following description of the rapist -- black male, 5'8", moustache, glasses, short straight hair, brown leather jacket, brown and black shoes, check pants. (T at 268).

 The petitioner, Julius Taylor, was stopped for speeding by Trooper Gary Stowell on the Atlantic City Expressway at a point approximately eighteen to twenty miles from the scene of the crime, a twenty to twenty-five minute drive. He had been traveling east (that is, away from Route 130), and made a U-turn to travel west. Although Trooper Stowell's summonses and incident report gave the time as "11:00 a.m.," he testified that the time was actually 11:10 to 11:20 A.M., but that he routinely rounded off the time to the last half hour. Petitioner was wearing green sunglasses, a black leather jacket, predominantly red plaid pants, and brown shoes. He is black, 5' 8", and at the time wore a very thin moustache.

 Petitioner got out of his car. The trooper frisked him and asked for his license and registration. He instructed petitioner to stand at the front of the car and checked inside the glove compartment, but did not find the papers. He noticed marijuana residue in the ashtray. (T at 31-33). Trooper Stowell then searched the trunk of the vehicle and found a shotgun. Petitioner was arrested for weapons offenses, searched, handcuffed, and placed in the police car. (T at 34-35). The trooper thoroughly searched the rest of the vehicle and found a handgun and a small knife. A second officer arrived thereafter (T at 38, 54), and other officers arrived later as well. (T at 55). At one point, Stowell heard a radio broadcast reporting the robbery and giving descriptions of the three perpetrators. He responded to the broadcast, stating that he had a suspect matching the description. The reply, from a civilian dispatcher at Mantua State Police Barracks, stated that the time element was not correct. (T at 47). Petitioner said to Trooper Stowell that he was not the suspect since his jacket was brown. He then said something like "Why don't you search my dick?" This statement was admitted as a voluntary incriminating statement at trial. The trooper also testified that petitioner said, "Who would try to steal so much in coin?" It was the trooper's testimony that the broadcast he heard had not mentioned "coin," nor had it reported a rape, and that these statements disclosed petitioner's peculiar knowledge of the crime. Petitioner asserts that he was sitting in the police car during the searches, and heard a broadcast reporting the robbery and rape, which prompted his statement about checking his penis. He denies that he said "in coin."

 At some point during the stop, Trooper Stowell radioed for a tow truck. A report received by the two truck dispatcher showed the time of receiving the call as 11:19 A.M.; however, this evidence was not introduced at trial. Instead, it was uncovered by an investigator preparing for the competency hearing. Stowell testified that he "cleared the scene" of the arrest some time after noon. (T at 52).

 Petitioner was taken to Hammonton State Police Barracks. Stowell called the Pennsauken police and they discussed arranging a lineup at the Gloucester Township station. Stowell then took petitioner to Gloucester Township Police station for arraignment. When they arrived, "J. D." and her fiance, "L. S.", among others, were waiting in a hallway area. "J. D." was able to observe the suspect in the hallway because the station did not have lineup facilities. She viewed him for about a half hour, but she did not positively identify him. She mentioned that the rapist's undershorts were blue. A detective checked petitioner's undershorts, which were bright red. At the trial, the victim and police officers explained this discrepancy by positing that what she thought were blue undershorts had actually been the shirttail of his blue shirt, tucked into his pants. Petitioner maintained, as stated earlier, that his shirt on the day of arrest was red. (T at 585-86).

 The police continued to investigate the crime. Two days later, on December 6, 1974, Patrick Caridy and "J. D." were shown a photographic display; both identified petitioner. John Wagner did not identify him, but did select another person, who could not have been involved. (T at 499). Twelve days after the crime, on December 16, a lineup was conducted, and Caridy and "J. D." identified petitioner. They also identified him at trial. The other witnesses were unable to identify anyone at the lineup or at trial.

 Petitioner asserts his innocence and believes he is the victim of misidentification. He testified that on the morning of December 4, 1974, he did the following. At approximately 9:20 - 9:30 A.M., he withdrew $200.00 in cash from Fidelity Bank in Philadelphia. Afterwards, he went to a nearby shop and purchased a chess set. He then drove to see a friend, Ali Ahmad, who lived in Elm, New Jersey, to play chess. He brought a shotgun and hunting gear in order to do some hunting at his friend's. He had recently purchased the handgun, and brought it to shoot at a target at Ahmad's. He crossed the Walt Whitman Bridge into New Jersey shortly before 10:00 A.M. On the way to Ahmad's, he mistakenly took a wrong exit onto the expressway. He made a U-turn and was pulled over by Trooper Stowell at approximately 10:35 - 10:40 A.M. Ahmad testified at trial that he was expecting petitioner to come over to play chess that day. He did not plan to go hunting with petitioner, he testified, but he did have a target and had extended an "open invitation" to petitioner to hunt on adjacent property owned by his cousin.

 Within days of his arrest, petitioner retained his trial attorney. (HT-1 at 95-96). The six-day trial was conducted from June 9 through June 17, 1975. To review what actions trial counsel undertook during the intervening period, we must turn to the findings and conclusions of the state trial court, rendered after the hearing on petitioner's ...

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