Douglas v. Cathel

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

8-8-2006

Douglas v. Cathel

Precedential or Non-Precedential: Precedential

Docket No. 03-3162

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 03-3162

____________

ROBERT E. DOUGLAS,

Appellant

v.

*RONALD H. CATHEL, Administrator of New Jersey State

Prison;

THE ATTORNEY GENERAL OF THE

STATE OF NEW JERSEY, ZULIMA FARBER*

*Amended, See Clerk’s Order dated 10/25/05

____________

On Appeal from the United States District Court

for the District of New Jersey

D.C. Crim. Action No. 99-cv-05642

(Honorable William H. Walls)

____________

Argued April 25, 2006

Before: FUENTES, STAPLETON, and ALARCÓN,** Circuit

Judges

(Filed: August 8, 2006)

____________

*

Zulima Farber is automatically substituted as Attorney

General of the State of New Jersey pursuant to F.R.A.P.

43(c)(2).

**

The Honorable Arthur L. Alarcón, Senior Judge, United

States Court of Appeals for the Ninth Circuit, sitting by

designation.

Mary Gibbons (Argued)

600 Mule Road

Holiday Plaza III

Toms River, NJ 08757

Counsel for Appellant

Barbara Rosenkrans (Argued)

Office of County Prosecutor

Essex County

50 West Market Street

New Courts Building

Newark, NJ 07102

Counsel for Appellees

OPINION OF THE COURT

____________

ALARCÓN, Circuit Judge.

Robert E. Douglas appeals from the order denying his pro

se petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. Mr. Douglas contends that the District Court failed to apply

the correct standard of review pursuant to the terms of the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”). He also

argues that his Sixth Amendment rights were violated because (1)

he was denied a speedy trial, (2) his counsel was ineffective for

failing to pursue his right to a speedy trial, and (3) he was

effectively denied his right to counsel because he was

unrepresented at a critical stage of the proceedings while he was in

custody on capital charges. We will affirm because we conclude

that the District Court applied the correct standard of review in

determining that the Appellate Division’s decision was not

“contrary to, [or did not involve] an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1).

I

On August 7, 1987, Estella and Charlene Moore lived

together with Charlene’s infant daughter in Apartment 2E in a

2

building in East Orange, New Jersey. Mr. Douglas, whose

nickname is “Skeet” lived next door to the Moore sisters in

Apartment 2D. Georgianna Broadway and Deborah Neal lived

together nearby in Newark, New Jersey. Ms. Broadway and Ms.

Neal were friends of the Moore sisters. Ms. Broadway was

introduced to Mr. Douglas through the Moore sisters.

In late July or early August of 1987, Ms. Broadway had

lunch with the Moore sisters at their apartment. She stayed about

forty-five minutes. Mr. Douglas was also in Apartment 2E at the

same time. After repairing the front door of Apartment 2E, Mr.

Douglas and the Moore sisters sat in the living room area

conversing and consuming mixed drinks. Ms. Broadway sat

approximately twenty feet away in the kitchen area listening to Mr.

Douglas’s conversation with the Moore sisters as she ate her lunch.

On the evening of August 7, 1987, Ms. Broadway visited

the Moore sisters in Apartment 2E. At approximately 5:30 a.m. on

August 8, 1987, Charlene Moore and Ms. Broadway went to sleep

in the bedroom. Mervin Matthews, a friend of the Moore sisters,

arrived at their apartment building at around 6:00 a.m. to drop off

Estella Moore’s keys and cigarettes. As he approached the

building, Mr. Matthews saw Mr. Douglas standing outside the

entrance talking to another gentleman. Mr. Matthews greeted Mr.

Douglas. The two men went upstairs together; Mr. Matthews

entered the Moores’ apartment, while Mr. Douglas entered his own

apartment. About fifteen minutes later, when Mr. Matthews left

the Moores’ apartment, Mr. Douglas also exited his apartment and

joined Mr. Matthews as he walked down the stairs. When Mr.

Matthews left that morning, Mr. Douglas was standing outside the

apartment building.

Kenneth Hampton, an acquaintance of Mr. Douglas’s who

needed a place to stay, spent the night of August 7, 1987 at Mr.

Douglas’s apartment. At around 6:45 a.m. or 7:00 a.m., Mr.

Hampton left the apartment to go outside and catch a ride to work.

He saw Mr. Douglas sitting alone on the front stoop of the

apartment building. The two men spoke briefly and Mr. Hampton

ran to the corner to catch his ride.

Ms. Broadway awakened some time around 7:00 a.m. or

7:30 a.m. and heard Estella Moore speaking to Mr. Douglas in the

kitchen area. Ms. Broadway asked Charlene Moore to bring her

3

Ms. Broadway’s pocketbook and keys from the kitchen. Charlene

Moore complied. Ms. Broadway asked Estella Moore to prepare

a meal for her. Estella Moore brought Ms. Broadway a tray of

Chinese food. Ms. Broadway noticed that Estella Moore had “a

very scared look on her face” when she entered the bedroom. Ms.

Broadway asked Estella Moore “what was wrong.” Estella replied,

“Nothing. Nothing.”

A few minutes later, the bedroom door was pushed open and

six shots were fired in rapid succession. Ms. Broadway did not see

the perpetrator. She received bullet wounds under her chin and on

her right arm. She also was grazed by bullets on her chest and

thumb. The Moore sisters died instantly from close range bullet

wounds. After determining that the sisters were dead, Ms.

Broadway saw the baby’s foot move. The baby was unharmed.

Ms. Broadway placed the baby inside her coat.

Ms. Broadway waited for up to thirty minutes to leave the

apartment building because she was unsure of the perpetrator’s

whereabouts. She drove herself to her residence. When she

entered the apartment, she told Ms. Neal: “Skeet just shot all three

of us and Stella and Charlene is [sic] dead.” Ms. Neal telephoned

the East Orange Police Department to report the homicides. She

indicated that “Skeet,” the occupant of Apartment 2D, was a

possible suspect.

Officer Alfred Rizzolo arrived at Ms. Broadway’s residence

at 9:35 a.m. on August 8, 1987. Ms. Broadway was being treated

by emergency medical service personnel. She appeared to be

nervous, excited, and in a lot of pain. Ms. Broadway told Officer

Rizzolo that “Skeet” had shot her while she was at Apartment 2E

and that “there were two dead bodies in that apartment.”

Sergeant Michael Brown, Officer Ronald Tisdale, and

Officer Ben Powell of the East Orange Police Department

responded to the dispatcher’s call about a double homicide in

Apartment 2E. Sergeant Brown was also informed that the

perpetrator might be in Apartment 2D. Finding the door of

Apartment 2E ajar, the officers entered and discovered Estella and

Charlene Moore lying on the bedroom floor. Each of them had

multiple gunshot wounds. The officers did not find any other

person or weapons in the bedroom. They recovered a round of

ammunition under a radiator in the bedroom.

4

The officers discovered the door of Apartment 2D ajar.

They entered in order to perform a plain-view search for weapons

and/or persons. Captain John Armeno of the East Orange Police

Department arrived at Apartment 2D at 10:00 a.m. He conducted

a search for weapons or “any other thing of evidentiary value.” He

believed it was important to identify the perpetrator quickly.

Captain Armeno removed a photograph of a man from Apartment

2D. The building’s manager identified the man in the photograph

as Mr. Douglas.

Sergeant Ronald Sepe of the East Orange Police Department

took the photograph to the University Hospital where Ms.

Broadway was being treated for her gunshot wounds. Sergeant

Sepe showed the photograph to Ms. Broadway and asked her if the

man in photograph was the person who shot her. Ms. Broadway

nodded her head and told Sergeant Sepe: “Yes.”

Warrants for the arrest of Mr. Douglas and the search of his

apartment were executed later that day. The search of Mr.

Douglas’s apartment yielded “[a]n Ohaus tripple beam scale, a

Derring gram scale, one hand held scale, glass bowl pipe, single

edge razor, one spoon with residue, another spoon with residue,

one bag of suspect marijuana, one bag of suspect marijuana seed,

one pack of suspect cocaine, one black leather holster, two black

leather cestus and one beige Rolodex file.” The Rolodex included

the name Irving Gaskins.

The next day, on August 9, 1987, eleven police officers

went to Mr. Gaskins’s apartment in Newark, New Jersey to locate

Mr. Douglas. Sergeant Sepe, Sergeant Alan Sierchio and four

other police officers from the East Orange Police Department, were

assisted by Sergeant Charles Whitner of the Newark, New Jersey

Police Department Tactical Unit; Officer Wayne Dooley, Officer

George Davey and Officer Thomas Hughes, also of the Newark

Police Department. Sergeants Sepe, Sierchio and Whitner, along

with Officers Hughes, Dooley and Davey, walked up to the third

floor apartment. Sergeant Whitner knocked on the door. They

were admitted by Bonita Allen who indicated that Mr. Douglas was

in the living room.

Upon entering the apartment, the officers observed Mr.

Douglas sitting on the couch in the living room. Sergeant Sepe,

Sergeant Whitner, Sergeant Sierchio, and Officer Dooley

5

approached Mr. Douglas in the living room. Mr. Douglas stood up

as the officers approached him. Mr. Gaskins was seated in the

living room on a chair near the couch. Sergeant Sepe placed Mr.

Douglas under arrest. Sergeant Whitner handcuffed Mr. Douglas

from behind while Sergeant Sepe, who was face-to-face with Mr.

Douglas, performed a protective search. When searching Mr.

Douglas, Sergeant Sepe came across a hard object and announced

that he had found a gun. Sergeant Sierchio moved in closer and

observed Sergeant Sepe lift Mr. Douglas’s shirt and seize a fully

loaded six shot Spesco Taurus .38 caliber revolver from “the front

portion of his pants in the waistband area.” The six rounds in the

weapon were hollow-point bullets. Sergeant Whitner, Officer

Hughes, and Officer Davey also observed Sergeant Sepe remove

the weapon from Mr. Douglas’s waistband area. Sergeant Sierchio

observed Sergeant Sepe remove an additional five rounds of

ammunition, also hollow-point bullets, from Mr. Douglas’s right

front pocket. Prior to patting him down, Sergeant Sepe did not see

the weapon or a bulge in Mr. Douglas’s pants. The weapon was

entirely concealed from view because Mr. Douglas’s shirt was

hanging down over his waistband.

The gun holster located in Apartment 2D bore unique

striation marks matching those found on the weapon recovered

from Mr. Douglas at the time of his arrest. Captain Carl Leisinger,

a ballistics expert, testified that the bullets recovered from the

bodies of the Moore sisters and the spent round recovered in

Apartment 2E were fired from the revolver carried by Mr. Douglas

at the time of his arrest. Captain Leisinger also testified that the

revolver seized from Mr. Douglas had unique striation marks cut

into the flutes of the outside cylinder. This is the only revolver

Captain Leisinger had seen, in examining tens of thousands of

revolvers, that had this particular type of fluting. These unique

striation marks were plainly imprinted on the black leather holster

found in Mr. Douglas’s apartment.

A

Ollie Douglas, an Assistant Deputy Public Defender

(“ADPD”) with the New Jersey Office of the Public Defender for

Essex County (“OPD”), was appointed to represent Mr. Douglas on

August 12, 1987, three days after he was arrested. At the time of

his appointment to represent Mr. Douglas, ADPD Douglas had

6

served as an Assistant Deputy Public Defender for fourteen years.

He had tried two or three capital cases. After interviewing Mr.

Douglas, ADPA Douglas requested that a field investigation be

conducted, rather than telephone contacts, with several individuals

whom Mr. Douglas disclosed might be witnesses to support his

defense. The list of prospective witnesses that Mr. Douglas

suggested should be questioned in person included Mr. Gaskins,

Sheila Tucker, and Michael Tucker.

On October 14, 1987, Mr. Douglas was charged with two

counts of murder, aggravated assault, possession of a handgun

without a permit, and possession of a firearm for an unlawful

purpose in violation of New Jersey law. ADPD Douglas

represented Mr. Douglas at his arraignment on November 18, 1987.

Mr. Douglas entered a not guilty plea. Pursuant to N.J. Ct. R. 3:7-

3(c), the State served a notice of aggravating factors which, if

proven at the penalty phase, would make Mr. Douglas eligible for

the death penalty. Deputy Public Defender (“DPD”) Mayer

Winograd, the head of the Essex County OPD, was also assigned

to represent Mr. Douglas. ADPD Douglas and DPD Winograd met

with Mr. Douglas several times while he was in jail.

On January 21, 1988, DPD Winograd informed Mr. Douglas

that the OPD had conducted a financial investigation and

determined that he was ineligible for legal representation by the

OPD.1 In its investigation, the OPD discovered that Mr. Douglas

owned a house with a market value of $70,000 to $110,000,

depending on its condition. Similar houses in the immediate area

had recently sold for $90,000 and $125,000. DPD Winograd

advised Mr. Douglas that he had “a right to Appeal to the Appellate

Division which has exclusive jurisdiction” over the determination

that he was not entitled to the appointment of counsel based on

indigency. In his letter to Mr. Douglas, DPD Winograd cited State

1

The OPD’s representation was terminated pursuant to

N.J. Stat. Ann. § 2A:158A-15.1. At that time, §2A:158A-15.1

provided that the OPD was responsible for determining whether

an accused was entitled to appointed counsel because of

indigency.

7

v. Nilsen, 214 N.J. Super. 23 (1986).2 A copy of the letter was sent

to Judge Joseph A. Falcone, on January 28, 1988.

On February 2, 1988, Mr. Douglas appeared before Judge

Falcone without counsel. Judge Falcone informed Mr. Douglas of

his right to appeal the OPD’s decision to terminate his

representation. Judge Falcone requested that Mr. Douglas advise

the court in writing of any developments of his attempts to

persuade the OPD that he was entitled to the appointment of

counsel. Judge Falcone also advised Mr. Douglas to consider State

v. Nilsen, 214 N.J. Super. 23 (1986) in deciding whether to pursue

his claim that he was eligible for the appointment of counsel

because he was indigent.

ADPD Douglas provided Mr. Douglas with the name and

address of James Smith, the deputy public defender “charged with

handling appeals in [the OPD’s] appellate section,” along with a

notice of appeal form to facilitate an appeal of the denial of

representation. In a letter dated February 8, 1988, Mr. Douglas

wrote to DPD Smith declaring that he challenged the OPD’s

determination that he was not eligible for representation.

During his next court appearance on February 16, 1988, Mr.

Douglas informed Judge Falcone that he had corresponded with

DPD Smith but had received no reply. Judge Falcone again

informed him of his right to appeal from the decision denying his

eligibility for the appointment of counsel and scheduled the next

appearance on March 21, 1988. He also advised Mr. Douglas that

2

Nilsen holds that “the Public Defender was vested with

the authority to determine the eligibility of applicants for

service.” Nilsen, 214 N.J. Super. at 25 (citing N.J. Stat. Ann. §

2A:158A-1.) In Nilsen, the court explained that the New Jersey

legislature “vest[ed] in the Public Defender the exclusive

authority to determine whether a defendant who has been

indicted is indigent and eligible for representation by the Office

of the Public Defender.” Id. at 26. The Nilsen court also

explained that “[i]f [a] rejected applicant wishes to contest the

rejection, he or she should file an appeal with the Appellate

Division [of the Superior Court] pursuant to R. 2:2-3(a)(2).” Id.

at 27 (citing N.J. Ct. R. 2:2-3).

8

he should inform the court in writing of any developments in his

appeal from the refusal of the OPD to represent him.

When the matter came before the court on March 21, 1988,

and again on April 19, 1988, Mr. Douglas appeared without

counsel. At the April 19, 1988 hearing, Judge Falcone provided

Mr. Douglas with a copy of the Nilsen opinion which set forth the

proper procedure for appealing the OPD’s non-indigency

determination.

On May 16, 1988, Mr. Douglas wrote to New Jersey Public

Defender Alfred A. Slocum, seeking review of the OPD’s non-

indigency determination. He explained to Mr. Slocum that Judge

Falcone had informed him at the April 19, 1988 hearing that DPD

Smith was not authorized to represent him in an appeal from the

decision of the OPD that he was not an indigent entitled to

appointed counsel. He further stated that his inability to receive

envelopes and stamps at the county jail, or use their photocopying

equipment, had prevented him from contacting Mr. Slocum until

the date of the letter.

At a subsequent court appearance on June 14, 1988, Judge

Falcone informed Mr. Douglas that he should submit his appeal of

the denial of appointed counsel to the Appellate Division of the

Superior Court. That same day, Mr. Douglas wrote to Elizabeth

McLaughlin of the Clerk’s Office of the Superior Court of New

Jersey, Appellate Division, seeking review of the determination

that he was not an indigent. He stated in his letter that the property

he owned was worth very little because it had been damaged by

fire and was in need of extensive repairs. Mr. Douglas also

informed Ms. McLaughlin that the cost of repairs would be

$20,000, and that there was a mortgage on the property in the

amount of $8,379.60, as well as water and sewage liens in the

amount of $565.62 plus interest.

Section 2A:158A-15.1 was amended, effective on April 3,

1988. As amended, it transferred the determination regarding

whether a defendant is indigent from the OPD to the court. Mr.

Douglas was informed of this fact by Public Defender Slocum in

a letter dated June 20, 1988. Referring to the then recent

amendment to N.J.S.A. 2A:158A-2, Mr. Slocum wrote that:

9

Effective April 5, 1988 by virtue of

newly enacted legislation, the Office

of the Public Defender was relieved of

the responsibility of determining

indigency. This determination is now

made by the judiciary. Even if you

were to successfully appeal Mr.

Winograd’s determination, the Office

of the Public Defender would not be

able to decide whether you are

indigent or not.

You should immediately write to the

Essex County Criminal Case Manager

requesting that they provide you with

an application for representation by

the Office of the Public Defender. If

they determine that you are eligible

for our services, we will again

undertake your representation.

On July 11, 1988, Jack Trubenbach, Clerk of the Superior

Court of New Jersey, Appellate Division, wrote to Mr. Douglas

informing him that his appeal of the denial of court appointed

counsel was rejected for failure to attach the appropriate

documents. On July 25, 1988, Mr. Douglas wrote to Judge Falcone

to inform the court of his lack of progress in obtaining counsel. He

complained that he was misled by ADPD Douglas as to what was

required for a successful appeal, and expressed general concern

over the progress of his case. He also explained the difficulties he

had experienced obtaining access to the library, to a copy machine,

and other resources necessary for his appeal of the OPD’s denial of

representation, due to his incarceration and placement in protective

custody.3

3

Mr. Douglas’s July 25, 1988 letter stated, in relevant

part:

10

The information forwarded to me by Mr.

Trubenbach makes me painfully aware of the

misleading and erroneous “advise” given to me by

my former Public Defender, Mr. Ollie Douglas,

Esquire, vis a vis the nature and amount of

information required concerning the appellate

procedures. I am shocked than an attorney with

the experience and expertise of Mr. Ollie Douglas

would inform me that a letter would be sufficient,

as if that is all that is required, in such a

complicated matter as the appellate process.

I am very concerned about these proceedings and I

have to wonder as to the intention and/or motive

considering that type and quality of representation

afforded me during the time I was being

represented by the Office of the Public Defender . .

..

Also, I am curious that had I not mistakenly mailed

the letter that I sent to Mr. Slocum, would I have

been informed of the change in the legislation

since the change occurred April 5, 1988 . . . .

As I had stated in previous correspondence, I am in

Administrative Segregation Protective Custody in

the Essex County Jail wherein I am allowed out of

my cell one hour during the day and one hour in

the evening. From June 23, 1988 through July 22,

1988, the telephone was removed from the tier.

For two weeks prior to that the telephone was out

of order. Also, as stated previously, access to the

Law Library is limited to one day a week for one

hour. Often library is cancelled, so we have had

access to the library on the average of once a

month. They copying machine has been operable

only twice on the days I have been able to go to the

library since May, requiring my continuing to have

to send my letters out to be copied so that I may

11

At a hearing on August 18, 1988, Judge Falcone told Mr.

Douglas that “the procedure has changed effective April of this

year. It’s not the Office of the Public Defender that makes the final

decision as to whether or not an individual qualifies for

representation. That decision is now left in the hands of the Court

. . . .” Judge Falcone told Mr. Douglas that the most expeditious

way for him to renew his request for representation would be to

apply directly to the court, rather than continue with the appeal of

the OPD’s non-indigency determination. Judge Falcone explained

that the procedure for obtaining counsel included the filing of

forms and an interview by the probation department. Judge

Falcone directed Probation Officer Frank Caporale to assist Mr.

Douglas in completing the proper form 5A requesting the

assignment of counsel. Mr. Douglas submitted an application for

appointment of counsel with the court. Officer Caporale then

“reported to the PD that defendant was ‘conditionally eligible for

public defender representation.’” Mr. Douglas did not pursue his

attempts to appeal the OPD’s initial non-indigency determination

any further.

On August 26, 1988, Anthony Casale, criminal case

manager for the Superior Court of New Jersey, Criminal Division,

visited Mr. Douglas and informed him that, based on the

information in the OPD’s January 21, 1988 letter, Mr. Douglas was

still ineligible for representation by the OPD.

In a letter dated August 26, 1988 addressed to Judge

Falcone, Mr. Douglas described his interview with Mr. Casale.

Mr. Douglas enclosed photographs of the property he owned and

explained that the property was uninhabitable. Mr. Douglas

complained that Mr. Casale had determined that he was not an

indigent based on the information contained in the January 21,

1988 letter from the OPD terminating representation. On

September 20, 1988, Judge Falcone ordered Mr. Casale to proceed

with a new investigation of Mr. Douglas’s eligibility for the

appointment of counsel.

On October 6, 1988, Judge Falcone received a letter from

Mr. Douglas which was dated September 19, 1988. Judge Falcone

have a copy for my files.

12

summoned Mr. Douglas to appear before him on October 12, 1988

and inquired as to why Mr. Douglas did not mail the letter directly

to him instead of sending it first to Sheila Tucker. This procedure

caused a two-week delay in receiving Mr. Douglas’s mail. Mr.

Douglas explained that the copy machine at the jail was broken so

he had to mail the letter to Ms. Tucker so she could make a copy

and then mail the letter to the judge. Judge Falcone observed that

this was causing lengthy delays in all of Mr. Douglas’s

correspondence to him. Judge Falcone stated that the letter dated

September 19, 1988 brought “quite a bit of additional information

to [his] attention that [he] was never aware of.” Specifically, Judge

Falcone stated that he had been unaware of the considerable efforts

Mr. Douglas had made to obtain counsel on his own, including

contacting and meeting with several private attorneys in August

and September of 1987, all of whom were unable for various

reasons to represent him.

Mr. Casale attended the October 12, 1988 hearing. He

informed the court that he had visited Mr. Douglas’s house and

confirmed that it had been damaged by a fire in 1985 and was

essentially gutted. Mr. Casale also confirmed that there were liens

against the house for taxes and utility bills. He told the court that

he had contacted five private attorneys and asked if they would

represent Mr. Douglas. Each declined to do so. Mr. Casale

recommended that Mr. Douglas be assigned a Public Defender.

Judge Falcone found that Mr. Douglas was an indigent entitled to

representation by the OPD.

On November 2, 1988, DPD Winograd met with Judge

Falcone in his chambers and informed him that ADPD Albert

Kapin and ADPD Joseph Krakora would represent Mr. Douglas.

ADPD Kapin and ADPD Krakora met with Mr. Douglas that same

day.

A pretrial conference was held approximately five months

later on April 3, 1989. At the conference, all of Mr. Douglas’s

pretrial motions were scheduled to be heard on August 7, 1989, and

a trial date was set for September 18, 1989.

Carmeta Albarus, an OPD investigator, interviewed Mr.

Gaskins on July 6, 1989. At the time of Mr. Douglas’s arrest, Mr.

Gaskins was infirm, suffering from emphysema, asthma, and heart

failure. When Mr. Gaskins was interviewed by Ms. Albarus, he

13

was “hooked up” to an oxygen machine and had difficulty talking.

Mr. Gaskins told Ms. Albarus that he did “not see Mr. Douglas

with any weapons” at the time of his arrest. He expressed his

willingness to testify on Mr. Douglas’s behalf. Mr. Gaskins passed

away sometime in September of 1989; the precise date does not

appear in the record.

The court considered pretrial motions on September 6, 7, 12,

19, 20 and 21, 1989 and October 11 and 17, 1989.4 At the close of

argument on October 17, the court indicated that it would render its

rulings on October 26, 1989.

On November 22, 1989, the OPD received a letter from

Michael and Sheila Tucker, two defense witnesses, stating that the

Tuckers were moving to Australia. Sheila Tucker had testified at

the October 11, 1989 hearing on Mr. Douglas’s suppression

motion. On December 21, 1989, ADPD Kapin and ADPD Krakora

wrote to Judge Falcone requesting that the court “set a schedule for

the remaining hearings on the pretrial motion and a date for the

jury selection,” so they could schedule bringing the Tuckers back

from Australia to testify. Id. at 167. The court did not respond to

the request.

On February 22, 1990, while the pretrial motions were still

pending, defense counsel filed a “Notice of Motions to Set Trial

Date and Reduce Bail.” The affidavit of counsel accompanying the

motion reads in its entirety:

1. We represent the defendant Robert

Douglas in this case.

2. This case has been pending since

defendant's arrest on August 8, 1987.

Defendant has been held in the Essex

4

The pretrial motions included a motion to suppress

evidence received from Mr. Douglas at the time of his arrest,

suppression of evidence received from Mr. Douglas’s apartment

on August 8, 1987, motions relating to discovery issues and

issues relative to aggravating factors, dismissal of the indictment

and issues relative to identification.

14

County Jail since that time in lieu of

$500,000 bail. As of February 19,

1990, no dates have been set for the

remaining pretrial hearings or for jury

selection. By letter dated December

21, 1989, we requested that dates be

set, but no response to that letter has

been received.

3. In addition to the prejudice

resulting from defendant’s continued

pretrial incarceration, we assert that

the ongoing delay in this case has

prejudiced him in the following ways:

a) Two defense witnesses -

Sheila and Mickey

Tucker - have moved to

Australia.

b) One potential defense

witness Irving Gaskins -

died in September,

1989.

c) Without knowing the

Court’s rulings on the

pretrial motions, we

have been unable to

finalize trial strategy.

d) We are unable to give

our fact and character

witnesses any guidance

as to the timing of the

trial and we fear that it

15

will be increasingly

difficult to enlist their

cooperation.

e) There is a strong

possibility that the trial

will be further delayed

in the event either side

takes interlocutory

appeals from the

Court’s rulings on the

pretrial motions.

f) Such a long delay between

arrest and trial may create the

impression to the jury that the

defendant’s guilt is not really at

issue -just the punishment to

which he should be subjected.

4. We respectfully request that a trial date be set and

that defendant’s bail be reduced.

On March 9, 1990, Judge Falcone set a trial date of

September 10, 1990 and announced that since he had been

appointed presiding judge of the Criminal Division, he had

reassigned this matter to the Judge Alvin Weiss. On May 18, 1990,

Judge Weiss ruled on the pretrial motions which had been pending

since October 17, 1989.

Jury selection began on September 10, 1990. The trial

commenced on October 30, 1990, some three years after Mr.

Douglas was indicted and approximately two years after ADPD

Kapin and ADPD Krakora were appointed to represent him. On

November 16, 1990, a jury convicted Mr. Douglas on all counts.

The jury did not vote to impose the death penalty. Mr. Douglas

was sentenced to two concurrent terms of life imprisonment. The

Appellate Division of the New Jersey Superior Court affirmed the

16

conviction on June 23, 1995. The New Jersey Supreme Court

denied certification on October 11, 1995.

B

On December 2, 1997, Mr. Douglas filed a petition for post-

conviction relief in the Superior Court of New Jersey, Essex

County (“PCR Court”). He alleged that he was denied his right to

a speedy trial and to the appointment of counsel during a critical

stage in the adversary proceedings. Mr. Douglas also complained

of prosecutorial misconduct and ineffective assistance of counsel.

Mr. Douglas alleged that his counsel was ineffective because they

failed to move for dismissal due to the extended pretrial delay. The

PCR Court granted relief to Mr. Douglas based upon his claim that

his Sixth Amendment right to a speedy trial had been violated. It

denied the remainder of his claims.

The PCR Court applied the four-part test enunciated in

Barker v. Wingo, 407 U.S. 514 (1972) in determining that Mr.

Douglas was denied a speedy trial. In Barker, the Supreme Court

set forth the factors that must be balanced to evaluate a speedy trial

claim as follows: “Length of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the defendant.”

Id. at 530 (citing United States v. Simmons, 338 F.2d 804, 807 (2d

Cir. 1964). With respect to the length of delay, the PCR Court

quoted Hakeem v. Beyer, 990 F.2d 750 (3d Cir. 1993) for the

principle that a delay of 14 months, measured from the date of

arrest until the commencement of trial “is not dispositive in and of

itself, but is sufficiently lengthy to warrant an inquiry into the other

facts.” Transcript of PCR Proceedings, September 25, 1998, at 91

(quoting Hakeem, 990 F.2d at 760). The PCR Court concluded that

“a delay of 30 months to the date they fix the trial [date] and 38

months till you get to trial passes the test of presumptive prejudice

and therefore requires an analysis of the other factors in the case.”

Id.

The PCR Court attributed the reason for delay to the state’s

failure to provide Mr. Douglas with counsel, holding that “[w]hen

the courts and/or the Public Defender’s Office drops the ball, that

still affects the defendant’s rights,” and “the investigation which

should have been undertaken promptly by the public defender was

not undertaken and a limited investigation was done.” Id. at 97.

The PCR Court noted that this was a capital case, requiring early

17

preparation of counsel, id. at 96, and emphasized the errors made

by the trial court and the OPD. Id. at 96-98. The PCR Court

concluded that Mr. Douglas had asserted his rights, stating that it

was “abundantly clear that the defendant was constantly

complaining that he wasn’t getting representation, that he wasn’t

able to establish his innocence and wasn’t able to have his day in

court.” Id. at 91-92. The PCR Court also found prejudice due to

the death of Mr. Gaskins. Id. at 99.

With respect to the ineffective assistance of counsel claim,

the PCR court concluded, after an evidentiary hearing, that Mr.

Douglas’s Sixth Amendment rights had not been violated. As the

PCR Court expressed it, “I do not find that the defendant has

established in any way, shape or form that . . . any errors which

may have been made by counsel were so serious that counsel was

not functioning as the counsel guaranteed the defendant by the 6th

amendment.” Id. at 56.

With respect to the charge that counsel had provided

ineffective assistance by failing to file a speedy trial motion, the

PCR Court credited counsel’s testimony, finding as follows:

“[Counsel] didn’t file the motion to

dismiss for lack of a speedy trial

because that would have required him

to disclose trial strategy. And I think

more importantly, he couldn’t imagine

the motion being granted considering

the nature of the case.”

Id. at 57-58.

The Appellate Division of the Superior Court of New Jersey

(“Appellate Division”) reversed the PCR Court’s ruling that Mr.

Douglas was denied his constitutional right to a speedy trial and

affirmed its disposition of the remaining claims. As to the length

of the delay, the Appellate Division held that “a three-year delay

does not by itself give rise to prejudice or denial of the right to

speedy trial.” State v. Douglas, 322 N.J. Super. 156, 171 (1999)

(citing State v. Long, 119 N.J. 439, 469, 575 A.2d 435 (1990)).

Relying on a study conducted by a New Jersey Governor’s

Commission, the Appellate Division observed “that capital cases

18

in New Jersey are generally not tried for two years following

indictment,” id., and determined that, because Mr. Douglas did not

appear to be entitled to appointed counsel, the PCR Court put too

much emphasis on the OPD’s withdrawal of representation, the

subsequent difficulties in challenging that decision, and the failure

of the trial court to recognize that it was responsible for appointing

counsel as of April 3, 1988. Id. at 172-73.

The Appellate Division determined that the reason for the

delay was the appellate process. “[I]n no event can it be said that

advising defendant of his need to pursue an appeal and reliance by

the courts and PD on that requirement, as required by law at the

time of the PD’s decision, was a deliberate attempt to hamper the

defense.” Id. Regarding the third Barker factor, the Appellate

Division did not specifically discuss whether Mr. Douglas had

preserved his Sixth Amendment right to a speedy trial before the

trial court.

The Appellate Division further held that Mr. Douglas failed

to demonstrate prejudice because “Gaskins died months before the

[February 22, 1990] motion was filed.” Id. at 174. “[A]ny

prejudice concerning Gaskins’ death is merely speculative,” id.,

and, in light of the weight of other evidence presented at trial,

including the testimony of the surviving victim, “the testimony of

all the officers that defendant had a loaded handgun in his

possession at the time of his arrest in the Gaskins’ apartment, and

the discovery of the holster in defendant’s apartment,” Mr.

Gaskins’ testimony would not have impacted the verdict. Id. at

174-75.

The New Jersey Supreme Court denied Mr. Douglas’s

petition for certification.

II

Mr. Douglas filed a petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254 on December 8, 1999.5 The District Court

5

The District Court accurately categorized Mr. Douglas’s

claims as:

(1) denial of speedy trial rights; (2)

erroneous reinstatement of

19

held that Petitioner had not made a substantial showing of the

deprivation of a constitutional right as required under 28 U.S.C.

§ 2254 and denied the petition. Mr. Douglas has filed a timely

appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253.

III

A

Mr. Douglas contends that the District Court applied the

wrong standard of review. We disagree. As the District Court

correctly noted:

[F]ederal habeas corpus relief is

denied to any claim which was

adjudicated on the merits in a state

court proceeding, unless such

application (1) resulted in a decision

that was contrary to, or involved an

unreasonable application of, clearly

established Federal law, as determined

by the Supreme Court; or (2) resulted

indictment; (3) unconstitutional

search and seizure; (4)

unconstitutional arrest warrant; (5)

inadequate representation, including

denial of counsel, constructive denial

of counsel and ineffective assistance

of counsel; (6) denial of fair trial,

including prosecutorial misconduct,

erroneous admission of evidence,

erroneous jury instructions, failure to

declare mistrial and verdict against

the weight of the evidence; (7) denial

of a direct appeal; (8) erroneous

opinion by the Appellate Division;

(9) denial of a speedy appeal and

(10) deprivation of liberty. Douglas

v. Hendricks, 236 F. Supp. 2d 412

(D.N.J. 2002).

20

in a decision that was based on an

unreasonable determination of the

facts in light of evidence presented in

the state court proceeding.

Douglas, 236 F. Supp. 2d at 425 citing 28 U.S.C. § 2254(d).

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme

Court explained that

[u]nder the “contrary to” clause, a

federal habeas court may grant the

writ if the state court arrives at a

conclusion opposite to that reached by

this Court on a question of law or if

the state court decides a case

differently than this Court has on a set

of materially indistinguishable facts.

Under the “unreasonable application”

clause, a federal habeas court may

grant the writ if the state court

identifies the correct governing legal

principle from this Court’s decisions

but unreasonably applies that principle

to the facts of the prisoner’s case.

Id. at 412-413. For the writ to issue, the state court’s application

of federal law must be objectively unreasonable. Lockyer v.

Andrade, 538 U.S. 63, 75-76 (2003).

The District Court correctly quoted the standard of review

set forth in §§ 2254(d)(1) and (2). It also appropriately applied the

Supreme Court and Third Circuit authorities that have interpreted

that standard. The District Court also accurately noted that “[t]he

AEDPA increased the deference federal courts must give to factual

findings and legal determinations of the state courts.” Douglas,

236 F. Supp. 2d at 421.

Mr. Douglas has correctly pointed out that the District Court

in one place misquoted the standard of review under 28 U.S.C. §

2254(d)(2) and that the misstatement was quite similar to one of

two errors we identified in Johnson v. Carroll, 369 F.3d 253, 259

21

(3d Cir. 2004). However, Mr. Douglas’s petition does not turn on

the § 2254(d)(2) standard since he is arguing that his detention is

the result of an unreasonable application of clearly established

Supreme Court precedent to the facts under § 2254(d)(1). He

makes no claim to habeas relief based on any allegedly

unreasonable determination of facts under § 2254(d)(2) and so this

misstatement is not relevant to the present appeal.

B

Mr. Douglas also contends that the District Court erred in

denying relief on his claim that his Sixth Amendment Right to a

speedy trial was violated. The District Court’s legal conclusions

regarding Mr. Douglas’s speedy trial claim are reviewed de novo.

Burkett v. Fulcomer, 951 F.2d 1431, 1437 (3d Cir. 1991) (citing

Lesko v. Owens, 881 F.2d 44 (3d Cir. 1989).

The District Court correctly concluded that it “will not

consider how it would have applied the Barker test because habeas

relief is only available where the state court’s application is

‘objectively unreasonable.’” Douglas, 236 F.Supp. 2d at 425

(quoting Williams, 529 U.S. at 409). The District Court stated that

is was “constrained to deny Petitioner relief on this ground because

the Appellate Division’s decision did not involve an unreasonable

application of clearly established federal law . . . .” Id.

Accordingly, the District Court held that the strict standard set

forth in 28 U.S.C. § 2254(d)(1) compelled the denial of Mr.

Douglas’s habeas corpus petition. This Court is bound by that

same strict standard.

As evidenced by the decision of the Appellate Division,

reasonable jurists may disagree as to the correct disposition of Mr.

Douglas’s speedy trial claim. However, because the decision by

the Appellate Division was not objectively unreasonable, we must

affirm. See Williams, 529 U.S. at 411 (“Under § 2254(d)(1)’s

‘unreasonable application’ clause, then, a federal habeas court may

not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly. Rather,

that application must also be unreasonable.”).

22

The Appellate Division recognized that the three year period

from Mr. Douglas’s arrest to the commencement of trial was of

sufficient length that it was required to make a full inquiry into and

to balance each of the Barker factors to determine whether he was

denied his right to a speedy trial. The record shows that ADPD

Douglas was appointed to represent Mr. Douglas on August 12,

1987, three days after his arrest. The OPD withdrew from

representing Mr. Douglas on January 21, 1988 because it had

concluded that Mr. Douglas was ineligible for appointed counsel.

During that period of representation, ADPD Douglas met with his

client, prepared a witness list, and authorized the interrogation of

potential defense witnesses. Mr. Douglas was not represented by

counsel for nine months and twelve days because of the procedural

confusion caused by the change in the statute transferring the

determination of indigency from the OPD to the trial court.

ADPD Kapin testified during the PCR Court proceedings

that in his experience, it is not uncommon to spend two to three

years preparing for the trial of a capital case. Mr. Douglas’s case

came to trial three years after he was charged.

With respect to the length of the delay, the Appellate

Division noted that three years was not an extraordinary pretrial

period for a capital case, citing data indicating that such cases

commonly take at least two years to get to trial. The court

explained that this was in part due to the fact that counsel were

required to prepare during that period not only a defense to a very

serious charge but also the defendant’s mitigating factor position

for the penalty phase.

In Barker, the prosecution sought and obtained a series of

sixteen continuances to facilitate the prosecution of Silas Manning,

Willie Barker’s cohort. 407 U.S. at 516-17. The prosecutors in

Barker believed they needed to first obtain Mr. Manning’s

conviction in order to avoid the assertion by Mr. Manning of his

privilege against self-incrimination and assure his testimony

against Mr. Barker. Id. at 516. Here, by contrast, the two principal

reasons for the delay were the good faith albeit erroneous

conclusion by the OPD that Mr. Douglas was not an indigent and

the failure of the trial judge to inform Mr. Douglas until August 18,

1988 that, due to a change in the law in April, indigency

determinations were no longer the responsibility of the OPD.

23

While the “ultimate responsibility for such circumstances must rest

with the government rather than with the defendant,” 407 U.S. at

531, the record in this case shows that there was no deliberate

attempt to delay the trial in order to hamper the defense. The trial

court scheduled several hearings in order to learn about Mr.

Douglas’s efforts to retain private counsel and the progress of his

efforts to demonstrate that he was an indigent.

With regard to the reason for the three-year pretrial delay in

this case, the Appellate Division concluded that “[a]ll pretrial time

was productively used once defense counsel were assigned, and

when they asked that a trial date be set, it was fixed in accordance

with a schedule satisfactory to the defense.” Douglas, 322 N.J.

Super. at 171. As to the proceeding period, the court found that

“the judiciary’s failure to be more aggressive in reviewing

defendant’s claim of indigency” was not excusable. At the same

time, it concluded that “in no event [could] it be said that advising

defendant of his need to pursue an appeal and the reliance of the

court and the PD on that requirement . . . was a deliberate attempt

to hamper the defense.” Id. at 171-72.

“A defendant who fails to demand a speedy trial [does not]

forever [waive] his right.” 407 U.S. at 528. However, “failure to

assert the right will make it difficult for [petitioner] to prove that he

was denied a speedy trial.” Id. at 532. A pro se criminal defendant

does not have to make a procedurally perfect assertion of his

speedy trial rights, but must make a “reasonable assertion” of the

right so as to put authorities on notice of his Sixth Amendment

claim. Gov’t of the Virgin Is. v. Pemberton, 813 F.2d 626, 629 (3d

Cir. 1987).

Whether or not the February 22, 1990 motion can be

construed as one for a speedy trial,6 it is clear from the record that

6

When ADPD Kapin was asked at Mr. Douglas’s PCR

hearing whether the February 22, 1990 motion was a “speedy

trial” motion, he stated that “whether it’s called a speedy-trial

motion, I believe the effect was basically the same, we wanted a

speedy trial date . . . .” He also testified, however, that Mr.

Douglas would have been prejudiced by an unsuccessful motion

to dismiss on speedy trial grounds because it would have

revealed his trial strategy.

24

Mr. Douglas made a “reasonable assertion” of his Sixth

Amendment right to a speedy trial. As Mr. Douglas points out in

this appeal, his well-documented efforts to secure counsel are

properly viewed as part and parcel of his efforts to assert his Sixth

Amendment right to a speedy trial. Mr. Douglas’s continuous

requests for counsel were founded, in large part, on his concern

that he be given an opportunity to prove his innocence before

evidence was lost. For example, in his correspondence of May 16,

1988 with Public Defender Slocum, Mr. Douglas expressed

concern over the delay in his case:

During the five months I was being

represented by the Office of the Public

Defender, Essex Region, to my

knowledge, only four statements were

obtained. Three individuals, Mr.

Donald Well [address omitted]; Mr.

Calvin Bonds [address omitted]; and

Mr. Gene Sutton, address unknown,

came to the Office of the Public

Defender to make statements, but no

statements were taken from these

persons.

To prove my innocence, it is

imperative that I have a fair trial with

proper representation and competent

defense presentation.

In his July 25, 1988 letter to Judge Falcone, Mr. Douglas wrote:

“Conducting an investigation, locating witnesses and relying on

memories after a year may be tenuous at best. Day by day the

chances that I may be able to prove my innocence may, perhaps,

become more and more remote.” Mr. Douglas’s assertion of his

right to a speedy trial alone, however, is not sufficient to undermine

the overall reasonableness of the Appellate Division’s Barker

analysis. See Barker, 407 U.S. at 533 (“none of the four factors

identified . . . [is] either a necessary or sufficient condition to the

finding of a deprivation of the right of speedy trial”).

25

Finally, on the question of prejudice, the Barker Court held

that “[i]f witnesses die or disappear during a delay, the prejudice is

obvious.” Barker, 407 U.S. at 532. The Barker Court also

instructed, however, that

[w]e regard none of the four factors

identified above as either a necessary

or sufficient condition to the finding

of a deprivation of the right of speedy

trial. Rather, they are related factors

and must be considered together with

such other circumstances as may be

relevant. In sum, these factors have

no talismanic qualities; courts must

still engage in a difficult and sensitive

balancing process.

Id. at 533.

The Appellate Division concluded that there is

nothing in the record to suggest that

defendant was unduly prejudiced by

the delay which can be attributable to

the assignment of counsel at the outset

of capital proceedings. Such

proceedings would have, of necessity

by virtue of the needs of the defense

team in a capital case, carried beyond

the death of Irving Gaskins or any

other event which defendant points to

as the basis for his claim of prejudice.

Douglas, 322 N.J. Super. at 173.

Mr. Gaskins died in September 1989, approximately twenty-

five months after Mr. Douglas’s arrest. The record shows that the

defense team’s need to prepare for trial and a a possible penalty

phase in a capital case would have continued beyond the date of

Mr. Gaskins’s death. ADPD Kapin testified that in his experience,

“it is not uncommon to spend two to three years in preparing for

26

trial.” Here, the record shows that the defense team was not

prepared to request a trial date until five months after Mr. Gaskins

died. Furthermore, as noted by the Appellate Division

any prejudice concerning Gaskins’

death is merely speculative. . . . [T]he

nature of Gaskins’ statement regarding

what he did not see without a fuller

explanation of what he did observe . .

. does not warrant the granting of post-

conviction relief on the grounds that

defendant was prejudiced by virtue of

the pretrial delay.

Douglas, 322 N.J. Super. at 175. We conclude that the Appellate

Division’s balancing of the Barker factors was not objectively

unreasonable.

C

Mr. Douglas argues that habeas corpus relief should be

granted because he was denied counsel at a critical stage during the

prosecutorial process. “[A] constitutional violation is per se

prejudicial only if the error occurs during a ‘critical stage’ of the

prosecutorial process.” Bell v. Cone, 535 U.S. 685, 695-96 (2002)

(holding that “[a] trial would be presumptively unfair . . . where the

accused is denied the presence of counsel at ‘a critical stage’”).

“The [Supreme] Court has identified as ‘critical stages’ those

pretrial procedures that would impair defense on the merits if the

accused is required to proceed without counsel.” Gerstein v. Pugh,

420 U.S. 103, 122 (1975); see also Coleman v. Alabama, 399 U.S.

1, 9 (1970); United States v. Wade, 388 U.S. 218, 226-27 (1967).

Mr. Douglas was afforded counsel at trial and at every hearing

where the merits of his case were argued. Mr. Douglas has failed

to demonstrate that he was denied counsel at a critical stage in the

proceedings.

D

Mr. Douglas alleges ineffective assistance of counsel on the

ground that his trial counsel failed to move for dismissal due to the

extended pretrial delay. Claims of ineffective assistance of counsel

27

are evaluated pursuant to the standard enunciated in Strickland v.

Washington, 466 U.S. 668 (1984). It has two components. “First,

the defendant must show that counsel’s performance was

deficient.” Id. at 687. When a convicted defendant complains of

ineffective counsel, the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.

Id. at 687-88. “Second, the defendant must show that the deficient

performance prejudiced the defense.” Id. at 687. And Mr. Douglas

must show there is a reasonable probability that, but for counsel’s

unprofessional errors, if any, the result of the proceeding would

have been different. Id. at 694. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

Judicial scrutiny of counsel’s performance must be highly

deferential because “it is all too tempting for a defendant to second-

guess counsel’s assistance after conviction or adverse sentence, and

it is all too easy for a court, . . . to conclude that a particular act or

omission of counsel was unreasonable.” Id. at 689. “A fair

assessment of attorney performance requires that every effort be

made to eliminate the distorting effects of hindsight. . . .” Id.

The District Court correctly concluded that the PCR Court’s

decision, which was affirmed by the Appellate Division without

comment, was not contrary to, nor an unreasonable application of,

the two-part Strickland test. ADPD Kapin testified at the PCR

Court proceedings that he could not imagine that, given the nature

of this case, a motion to dismiss for failure to comply with speedy

trial requirements would have been granted. He stated that he was

more concerned about getting the case set for a trial so it could be

litigated. He also stated that making a motion for a dismissal on

speedy trial grounds would have required disclosure of the defense

trial strategy and, in his opinion, would have been denied. We

agree with the PCR Court that Mr. Douglas has failed to

demonstrate that his attorneys’ performance was defective.

We also agree with the PCR Court’s determination that Mr.

Douglas has failed to demonstrate that he was prejudiced by his

counsels’ failure to move for a dismissal on speedy trial grounds

based on the death of Mr. Gaskins prior to the trial date. As the

Appellate Division observed, “any prejudice concerning Gaskins’

death is merely speculative.” State v. Douglas, 322 N.J. Super. at

174 (addressing the fourth Barker factor in analyzing Mr.

28

Douglas’s Sixth Amendment right to a speedy trial). The Appellate

Division continued,

given the identification of defendant

by Ms. Broadway, the testimony of all

th officers that defendant had a loaded

handgun in his possession at the time

of his arrest in the Gaskins apartment,

and the discovery of the holster in

defendant’s apartment, all as detailed

in our opinion on direct appeal, we

conclude that Gaskins’ death (coming

as it did after the Public Defender’s

interview without an endeavor to

preserve his testimony, the nature of

Gaskins’ statement regarding what he

did observe, and the giving of that

statement long before a motion was

made to fix a trial date) does not

warrant the granting of post-

conviction relief on the grounds that

defendant was prejudiced by virtue of

the pretrial delay.

Id. at 174-75.

We agree with the Appellate Division’s reasoning with

respect to Barker’s fourth “prejudice” factor.7 Mr. Douglas has

7

Judge Stapleton agrees that Mr. Douglas has not satisfied

Strickland’s second prong because a motion to dismiss on

speedy trial grounds would have been unsuccessful. To the

extent our conclusion on this issue or our conclusion regarding

prejudice under Barker, rests on the assertion that Gaskins’s

testimony would not have been helpful to Mr. Douglas, Judge

Stapleton disagrees. In his view, even if Gaskins’s testimony

had been regarded as helpful to the defense, a speedy trial

motion would have been properly denied because, as the

Appellate Division also concluded, there was no causal nexus

between the unexcused nine month delay and the loss of

Gaskins’s testimony; that loss would have occurred even if there

had been no such delay.

29

failed to demonstrate that the Appellate Division’s conclusion, (1)

that his counsel were not ineffective in failing to move for a

dismissal, and (2) that he was not denied a speedy trial due to the

fact that Mr. Gaskins died before trial, was objectively

unreasonable. Accordingly, the decision of the District Court will

be AFFIRMED.

30