Appeal from the United States District Court for the District of New Jersey. (D.C. Civil Action No. 90-02243).
Present: Hutchinson, Alito and Seitz, Circuit Judges.
HUTCHINSON, Circuit Judge.
Appellants Howard Beyer, the Superintendent of Trenton State Prison, and Robert Del Tufo, the Attorney General of New Jersey, appeal an order of the United States District Court for the District of New Jersey granting Ali Abdul-Habib Hakeem's (Hakeem)*fn1 petition for a writ of habeas corpus. The district court based its order on a holding that a fourteen and one-half month delay in bringing Hakeem to trial it found attributable to the negligence of the state violated the Speedy Trial Clause of the Sixth Amendment to the United States Constitution. Hakeem cross-appeals rulings of the district court rejecting the other grounds he asserted as a basis for habeas relief.
The district court had jurisdiction over Hakeem's petition pursuant to 28 U.S.C.A. § 2254 (West 1977). We have appellate jurisdiction pursuant to 28 U.S.C.A. § 2253 (West 1971) and 28 U.S.C.A. § 1291 (West Supp. 1992).
We will affirm the district court on the issues that are the subject of Hakeem's cross-appeal and, therefore, deny Hakeem appellate relief on that cross-appeal docketed at our No. 91-5884. Except for the double jeopardy issue Hakeem raises on his cross-appeal, we do so essentially for the reasons set forth in the district court's opinion. See Hakeem v. Beyer, 774 F. Supp. 276 (D.N.J. 1991).*fn2 On the double jeopardy issue, we set forth our reasoning, which differs somewhat from that of the district court, in Part III of this opinion infra.
On the state's appeal at No. 91-5848, we will vacate the district court's order granting Hakeem a writ of habeas corpus on his claim that the state violated his Sixth Amendment right to a speedy trial and remand the case to it for an evidentiary hearing on the cause of the delay. With respect to the cause of the delay we hold that the district court properly disregarded the presumption of correctness that attaches to a finding of fact of a state court under 28 U.S.C.A. § 2254(d) because the state court's finding was not fairly supported by the record as required by § 2254(d)(8). In situations where a state court's finding of fact is not fairly supported by the record, Townsend v. Sain, 372 U.S. 293, 313, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), requires the district court to hold a hearing to resolve those material facts that are in dispute. The district court failed to do this with respect to the cause of the delay, a material fact that is genuinely in dispute on the state record in this case. Accordingly we will remand for an evidentiary hearing on the cause of the delay. Resolution of the speedy trial issue also requires a balancing of the factors set forth in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), based on appropriate findings of fact and that balancing is a matter for the district court in the first instance. On the record before us, however, we disagree with the district court's decision on which side of the balance some of the factors should be placed and also, to some extent, with the weight it afforded to those factors that go on Hakeem's side. Specifically, we agree with the district court that a fourteen and one-half month delay triggers a Barker inquiry. We also agree with the district court that Hakeem has demonstrated no cognizable prejudice beyond that which is inherent in the fourteen and one-half month delay in bringing him to trial, but we disagree with the district court's Conclusion that this delay of itself places the factor of prejudice on Hakeem's side of the balance. We also hold, in partial disagreement with the district court, that Hakeem's assertion of his right to a speedy trial weighs only slightly in his favor.
Between August 14, 1983 and November 3, 1983, the Neighborhood Market Grocery Store (the "Market") located in Newark, New Jersey was robbed four times. On August 14, 1983, three individuals, one armed with a revolver, stole over $100.00. At trial, Elois Johnson (Johnson), the owner, and Joseph Hankerson (Hankerson), a store employee, identified Hakeem as the armed perpetrator. On September 14, 1983, two males again robbed the Market, taking over $100.00. Johnson stated to the police that one of the individuals had robbed his store one month earlier. On October 16, 1983, approximately $200.00 was taken and Johnson informed the police that he believed the same individual was involved in this robbery as well.
The particular robbery that gives rise to this appeal occurred on November 3, 1983. On that day, at approximately 2:50 p.m., three individuals, one armed with a sawed-off shotgun and another with a .38 caliber revolver, entered the Market. They forced Johnson and Hankerson to the back of the store, demanded money and left with between $300.00 and $400.00 in cash and some food stamps contained in a red pouch. Johnson and Hankerson gave the police a description of the robbers and their getaway car. Another witness supplied the police with the car's license number. After the plate was traced to an Oldsmobile owned by Bennie Roberts of Newark, New Jersey, the police established surveillance around Roberts' home.
At approximately 3:35 p.m., police officers stopped a black Oldsmobile fitting the witness's general description of the getaway car. They ordered the three black, male occupants out of the car at gunpoint and frisked them but found no concealed weapons. A search of the car, however, uncovered a loaded 13-gauge sawed-off shotgun partially hidden by a blanket on the rear floor, near where Hakeem had been sitting. The search of the car also revealed a .38 caliber revolver loaded with six hollow-point bullets, four shotgun shells and a red pouch. The driver, Bernie Roberts, and his passengers Mubaarek Hayy (Hayy) and Hakeem were at once arrested.
The police officers placed the three suspects in the back of a patrol car and brought them to the Market for identification. Hankerson and Johnson came outside to view the suspects individually. Both identified Hakeem as one of the robbers. Hakeem was taken to the station house for processing. There, a search of his person produced $15.10 in currency and some food stamps.
At trial, Hakeem vigorously proclaimed his innocence. He stated that just before the robbery he had been visiting his sick father and had then stopped by the offices of the Newark Department of Sanitation to seek employment. There he alleges he spoke with two receptionists. In pretrial interviews that occurred about fourteen months after the alleged visit, the receptionists were unable to corroborate Hakeem's alibi. They were not called at trial. Hakeem's father died prior to trial, in March of 1984.
Hakeem testified he accepted a ride with the two other suspects after he stopped at the Sanitation Department, but knew nothing of the robbery and had never seen the weapons found in the car. He also denied involvement in any of the other robberies and challenged Johnson's identification outside the Market.
On February 7, 1984, a grand jury returned a nine count indictment against Hakeem in connection with the four robberies of the Market. Counts I through III involved the three robberies that occurred before November 3, 1983. The remaining six counts stemmed from the November 3, 1983 robbery of the Market.
On March 7, 1984, Hakeem entered a plea of not guilty to all charges. By a letter dated April 5, 1984 and addressed only to "Honorable Sir," Hakeem complained of excessive bail and that he had not yet been afforded discovery. The letter was forwarded to a state court Judge who acknowledged the letter on April 12 and informed Hakeem by form letter that the court was "forwarding a copy to your attorney with instructions to see you immediately and take any required action." Joint Appendix (App.) at 244.
Hakeem asserts that he never met his first appointed defense attorney. He claims he informed his second appointed defender about his alibi on March 23, 1984 but, despite his own repeated requests and the letters forwarded to her by the state Judge, she made no attempt to contact his alibi witnesses. Hakeem also expressed dissatisfaction with this defender in a letter to the office of the state public defender in which he asked for the appointment of someone else. That request was refused. Two weeks before trial, Hakeem discharged this second appointed counsel and retained a private attorney. His privately retained counsel then interviewed the two Sanitation Department receptionists and learned they were unable to corroborate Hakeem's story.
In the meantime, on May 5, 1984, Hakeem had presented another pro se request to the state Judge seeking dismissal of the charges against him because of unnecessary delay. No other party was served. On May 7, 1984, the state Judge acknowledged this second communication from Hakeem and informed him that it too would be forwarded to his counsel. On October 16, 1984, Hakeem claims he executed yet another pro se motion requesting dismissal of the indictment based upon failure to prosecute the case within 180 days of the indictment. Although the record contains a copy of this motion, the prosecutor's office states that it was not served and neither the Judge's chambers nor the clerk of the state court have any record of how it was processed.
On December 11, 1984, Hakeem filed his first petition for a writ of habeas corpus with the United States District Court for the District of New Jersey alleging: (1) ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution; (2) denial of a speedy trial in violation of the Sixth and Fourteenth Amendments; and (3) the imposition of cruel and unusual punishments in violation of the Eighth and Fourteenth Amendments. The district court dismissed this petition, without prejudice, for failure to exhaust state remedies based on Hakeem's improper filing and service of his motions upon the relevant parties at the state court level. Wooten v. Butler, No. 84-5134 (D.N.J. Mar. 25, 1985).
On January 7, 1985, the New Jersey Superior Court heard and denied a motion to suppress evidence the state had obtained during Hakeem's arrest. State v. Wooten, No. 604-2-84 (N.J. Super. Ct. Jan. 7, 1985). On January 14, 1985, the Superior Court held a hearing pursuant to State v. Sands, 76 N.J. 127, 386 A.2d 378 (N.J. 1978), at which it was determined that all of Hakeem's prior convictions would be admissible for impeachment purposes if he chose to testify at trial. On January 16, 1985, the Superior Court held a Wade*fn3 hearing and determined that the state's out-of-court identifications of Hakeem would be admissible.
The state tried Hakeem's co-defendant, Hayy, immediately before Hakeem. At Hayy's trial as well as at Hakeem's, Hankerson, the store clerk, testified somewhat differently than he had at Hayy's Wade hearing on January 9, 1985. At Hayy's Wade hearing, Hankerson identified Hayy as the individual who carried the shotgun and wore a beard on the day of the November 3 robbery. At both Hakeem's and Hayy's trial, however, Hankerson testified it was Hakeem who held the shotgun and wore a beard.
Hakeem's trial counsel never asked for a transcript of the Wade hearing and the state never supplied him with one, but by the time of Hakeem's trial on January 16, 1985, counsel had obtained the specifics of Hankerson's prior testimony from the court reporter who recorded Hayy's Wade hearing. Thus, at Hakeem's trial on January 16, 1985, the defense knew that Hankerson had changed his description of the perpetrator between the time of Hayy's Wade hearing and Hakeem's trial. Based on this information, Hakeem's lawyer used Hankerson's conflicting prior statement in cross-examining him. After Hankerson admitted the contradiction, the defense did not take him through a line by line examination of the prior testimony. The jury found Hakeem guilty on Counts IV through IX, the charges stemming from the November robbery, but acquitted him on the other charges that stemmed from the three earlier robberies.
On March 7, 1985, the New Jersey trial court enhanced Hakeem's sentences after determining he had the status of a persistent offender under state law. It sentenced Hakeem to twenty-five years imprisonment for armed robbery, eighteen months for aggravated assault, five years for unlawful possession of a firearm and five years for unlawful possession of a sawed off shotgun, all to be served concurrently. In addition, the court sentenced Hakeem to fifteen years for possession of a weapon for an unlawful purpose and eighteen months for unlawful possession of hollow-nosed bullets. It ordered the latter two sentences to be served concurrently with each other but consecutively with the first three and credited Hakeem with the 420 days time served during his pretrial and presentence incarceration.
Hakeem appealed his sentences asserting nine issues. The New Jersey Superior Court, Appellate Division, affirmed the convictions in an unpublished per curiam opinion. State v. Wooten, No. A-3657-84T4 (N.J. Super. Ct. App. Div. June 30, 1988) (per curiam). Hakeem filed a petition for certification nunc pro tunc to the New Jersey Supreme Court. It was denied on February 21, 1989. He then sought post-conviction relief from the New Jersey Superior Court based on his belief that his sentences violated the Fifth and Eighth Amendments. The Superior Court dismissed his petition without prejudice. State v. Wooten, No. 609-2-84 (N.J. Super. Ct. Dec. 8, 1989).
On June 11, 1990, Hakeem filed a pro se habeas corpus petition in the United States District Court for the District of New Jersey alleging seven grounds for relief. Hakeem v. Beyer, 774 F. Supp. at 282-83. The district court held, inter alia, that Hakeem was not denied effective assistance of counsel, the identification testimony used at trial was admissible and the state did not engage in prosecutorial misconduct in refusing to furnish Hakeem's counsel with a copy of the possibly exculpatory transcript. Id. at 286-87, 290. The district court did, however, conclude that Hakeem was denied his Sixth Amendment right to a speedy trial. Id. at 296. It ordered Hakeem discharged from custody but immediately stayed that order pending the outcome of this appeal. Id. at 299. Thereafter, on December 23, 1991, this Court denied Hakeem's motion to vacate the stay.
Hakeem's double jeopardy issue presents a question of law subject to plenary review. See United States v. Garcia, 919 F.2d 881, 885 (3d Cir. 1990); Daniel v. Warden, 794 F.2d 880, 883 (3d Cir. 1986). The district court's determination that Hakeem has established a violation of his constitutional right to a speedy trial is reviewed de novo. Burkett v. Fulcomer, 951 F.2d 1431, 1437-38 (3d Cir. 1991), cert. denied, 120 L. Ed. 2d 921, 112 S. Ct. 3055 (1992). Where an evidentiary hearing is not mandatory, the district court has discretion to determine whether a habeas corpus petitioner is entitled to a hearing and its determination is reviewable for abuse of discretion. Reese v. Fulcomer, 946 F.2d 247, 256 (3d Cir. 1991), cert. denied, 118 L. Ed. 2d 396, 112 S. Ct. 1679 (1992). Because the district court never conducted an evidentiary hearing, we also exercise de novo review over the factual inferences the district court drew from the record. Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 n.5 (3d Cir.), cert. denied, 116 L. Ed. 2d 232, 112 S. Ct. 280 (1991).
The district court concluded that Hakeem's dual convictions and consecutive sentences for first degree armed robbery under N.J. Stat. Ann. § 2C:15-1 (West 1982) and possession of a weapon for an unlawful purpose under N.J. Stat. Ann. § 2C:39-4 (West Supp. 1992) did not place him twice in jeopardy because the Appellate Division of the New Jersey Superior Court determined that the state legislature intended to formulate two specific crimes and punishments. The district court therefore held that the United States Supreme Court's test for double jeopardy announced in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), did not apply. See Hakeem, 774 F. Supp. at 285 (citing Missouri v. Hunter, 459 U.S. 359, 368-69, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983) (state legislature may proscribe separate punishments for single act)). The district court did not consider the problem that a dual conviction creates when one crime is a lesser included component of the other. See Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990); Illinois v. Vitale, 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980). Though the appellate division, in considering Hakeem's direct appeal, held that possession of a weapon is a separate offense from assault, it did not decide whether the legislature intended possession of a weapon to be an offense separate from armed first degree robbery. On this point, other cases decided by the Appellate Division leave New Jersey law unclear. See State v. Jones, 213 N.J. Super. 562, 517 A.2d 1219 (N.J. Super. App. Div. 1986) (holding two sentences permissible). But see State v. Porter, 210 N.J. Super. 383, 510 A.2d 49 (N.J. Super App. Div.) (conviction for weapon possession merged with first degree armed robbery conviction), cert. denied, 523 A.2d 191 (N.J. 1986).
The state court's rejection, without Discussion, of Hakeem's double jeopardy attacks on his dual convictions for robbery and possession does not by itself conclusively establish a legislative intent that would avoid Blockburger. If it did, Blockburger analysis would seldom be necessary on federal habeas because state affirmance of a dual conviction could bring our double jeopardy inquiry to an end. Nevertheless, in Hakeem's case, we are satisfied that his dual convictions survive Blockburger analysis because the two crimes have different elements. See Vitale, 447 U.S. at 416 ("If 'each statute requires proof of an additional fact which the other does not,' the offenses are not the same under the Blockburger test.") (quoting Brown v. Ohio, 432 U.S. 161, 166, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977) (emphasis omitted)). New Jersey's possession statute requires proof that a defendant intended to use the weapon unlawfully.*fn4 Its first degree robbery statute requires mere possession of a weapon at the time the offense is committed without any proof that the actor intended to use or exhibit it.*fn5 Consequently, Hakeem ...