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Wells v. Petsock

filed: August 16, 1991.

RICHARD K. WELLS, K-2894, APPELLANT,
v.
GEORGE PETSOCK, SUPERINTENDENT



Appeal from the United States District Court for the Western District of Pennsylvania; D.C. No. 88-00063E.

Stapleton, Cowen, and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge

This appeal from a denial of a habeas corpus petition raises the question whether violation of a state's statutorily defined deadline to ensure a prompt trial constitutes a deprivation of the defendant's constitutional right to either a speedy trial or effective assistance of counsel. The petitioner's murder trial commenced 217 days after his arrest, 37 days beyond Pennsylvania's 180-day limit. The defendant did not perfect an appeal but filed post-trial motions which were denied. The trial court,*fn1 on reviewing a post-conviction motion reversed the petitioner's conviction concluding that his constitutional right to a speedy trial was violated.

The Commonwealth took an appeal and the superior court remanded for another evidentiary hearing, after which the trial court again found that the petitioner's constitutional right to a speedy trial was infringed and ordered his release. The superior court affirmed this order and the Commonwealth appealed. The Pennsylvania Supreme Court reversed, holding that the petitioner's counsel was not ineffective by agreeing to the continuance of his client's trial date and, thus, the petitioner's right to a speedy trial was not violated.

The petitioner filed this petition for a writ of habeas corpus in the United States Court for the Western District of Pennsylvania. The magistrate-judge, without granting an evidentiary hearing, submitted a report recommending denial of the writ because the petition did not state a cognizable federal constitutional claim. The district court adopted the report and recommendation of the magistrate-judge and denied the writ. We affirm.

I.

The petitioner, Richard Wells, is currently serving a life sentence for a second degree murder conviction after he and three others robbed and killed an elderly woman. Wells was arrested on July 28, 1975, and his trial was scheduled to commence during the 1975 September Term. Wells' court-appointed counsel shortly thereafter applied for a change of venue on the grounds of prejudicial pretrial publicity. The court denied this motion.

On September 12, 1975, however, the court issued its own motion continuing the case until the February 1976 term of court, beyond the 180-day limit prescribed by Pennsylvania Rule of Criminal Procedure 1100 (Rule 1100). While awaiting trial, Wells was kept in custody in a state high security prison over 200 miles from the trial court.

In November, 1975, the district attorney, seeking to confirm the court's continuance, filed its own motion based on an anticipated shortage of veniremen from which to select a jury for Wells' highly-publicized murder trial, which, according to the trial judge, was the first one held in that county in twenty years. At a brief hearing before the court held in the absence of the defendant, counsel, without consulting with Wells, agreed to have the trial continued until February, 1976. Defense counsel's failure to object or obtain Wells' consent is the focal point of Wells' assignment of error.

Jury selection commenced March 1, 1976, or 217 days after Wells' arrest. Prior to the start of trial, on February 25, 1976, Wells filed with the court a pro se application to dismiss the charges against him under Rule 1100.*fn2 The court summarily denied this application on March 2, 1976.

A trial court judge, hearing Wells' speedy trial petition in 1981, examined the trial transcripts and other evidence in the record, heard argument from counsel, and subsequently entered an order for Wells' release based on the finding that his constitutional right to a speedy trial had been violated. After a Commonwealth appeal, the superior court remanded to the trial court for a determination on the whole trial record, including those portions which had not been transcribed at the time of the original review.

On February 24, 1984, the trial court conducted a second hearing, made extensive factfindings, and again ruled in favor of Wells. This time, the superior court affirmed. After the Commonwealth appealed, the Pennsylvania Supreme Court reversed. The supreme court stated that the proper resolution of Wells' constitutional claim required reference to the defense counsel's conduct prior to trial because, it declared, "if counsel's decision to agree to the continuance constituted effective representation, then [Wells'] constitutional argument fails." The ...


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