ANDERSON, Circuit Judge.
Filimon Castillo Perez ("defendant") appeals from an Order of the district court dismissing his petition for a writ of habeas corpus. He contends that a fifteen month delay between his guilty plea in state court on burglary charges, and sentencing following an habitual criminal proceeding violated his Sixth Amendment right to a speedy trial. He further contends that delay in bringing the habitual criminal charge violated his Fifth Amendment right to due process. Those arguments were presented to and rejected by the New Mexico Court of Appeals, which affirmed defendant's conviction and sentence in state district court. The New Mexico Supreme Court denied certiorari. Defendant then petitioned for a writ of habeas corpus from the federal district court. The United States Magistrate reviewed the case, proposed findings, and recommended dismissal. The district court adopted the proposed findings as its own and dismissed defendant's petition with prejudice. This appeal followed. After reviewing the Record and examining defendant's arguments, we affirm.
On February 2, 1981, defendant was indicted by the Bernalillo County, New Mexico, grand jury on one count of commercial burglary and one count of possession of burglary tools. He was arrested and held in the Bernalillo County Detention Center in lieu of bond. At a hearing on May 15, 1981, he pleaded guilty to both counts, and indicated through his counsel that he wished to be sentenced immediately in order to get to the state penitentiary. At that point, the judge asked the prosecutor what the effect of immediate sentencing would be. He responded that, in his opinion, an immediate sentence could not be suspended or run concurrently with any enhancement sentence later imposed pursuant to the New Mexico Habitual Criminal Act, N.M.Stat.Ann. §§ 31-18-17 to 31-18-20 (1978 & Supp.1981). He also advised the court that his office intended to initiate sentence enhancement proceedings against the defendant pursuant to that Act.
The judge was unwilling to impose a sentence upon defendant until the presentence report was prepared and the habitual offender matter resolved. She stated it was her desire to preserve the option of suspending defendant's underlying sentence and crediting his jail time to the enhancement sentence. The court instructed the prosecutor to begin habitual offender proceedings as soon as possible. Neither defendant nor his counsel made any objection to that reasoning or proposed course of action. However, defendant's counsel stated to the prosecutor that defendant would admit to a fourth habitual offender charge, and wanted to be sentenced promptly.
Approximately nine months later, defendant's former counsel learned that defendant was still in the county jail. He informally inquired of the prosecutor why defendant had not been sentenced, and conveyed defendant's continued desire that sentencing proceedings be promptly concluded. Shortly thereafter, on February 23, 1982, the public defender filed a motion for sentencing. A sentence date was set for March 19, 1982, then continued to April 2, 1982, at defendant's request. At the hearing on April 2, 1982, defendant argued that the case against him should be dismissed because of delay in sentencing. The prosecutor responded by outlining difficulties encountered by his office in obtaining information necessary to the habitual criminal proceeding. He represented that his office was seeking evidence of five previous felonies, although it had material for
On that same day, April 2, 1982, the prosecutor's office filed a supplemental information against defendant under the Habitual Criminal Act charging him with five felonies, including the immediate burglary conviction. Defendant was arraigned on April 30, 1982, and indicated he would contest the charge. On May 4, 1982, trial was set for June 2, 1982, on a trailing docket. On May 6 and May 10, 1982, the public defender's office filed motions to dismiss the supplemental information on grounds that the delay in filing violated state rules of criminal procedure and defendant's constitutional right to a speedy trial.
A hearing on those motions was held on May 28, 1982, at which time most of the points which are raised in this appeal were argued to the trial court. The prosecutor explained to the court his office's attempts to obtain evidence of previous convictions considered necessary for the habitual offender proceedings. The prosecutor explained that the task of gathering the necessary documents had been assigned to a paralegal. Testimony from that individual indicated that evidence with respect to three of the prior felony convictions had been obtained by the end of April 1981; part of the evidence with respect to another conviction was received in May of 1981 and the rest on March 15, 1982, after delays which the paralegal was told to expect. Some possibly unnecessary information with respect to another felony conviction was obtained on April 23, 1982. Both the paralegal and the prosecutor in charge of the enhancement proceeding were under the impression that defendant would admit to the supplemental information once it was prepared. When it was learned that defendant would contest the habitual offender charge, a new information was prepared without one of the convictions in question.
The trial court denied defendant's motion to dismiss, finding that the state's delay was justified and in good faith, and not an attempt to circumvent the state time limit rule. The court also found that defendant was not prejudiced by the delay and in fact may have benefited. Due to defendant's motion to dismiss, the June trial setting was continued until August, and on July 15, 1982, the trial was placed on the trailing docket beginning the week of August 3, 1982. On August 19, 1982, defendant's counsel filed a motion to dismiss certain counts of the supplemental information on the grounds that defendant's prior convictions were invalid because his constitutional rights had been violated. Prior to trial, the court granted the motion with respect to one of the prior felony convictions and denied the motion with respect to all others. A jury trial was held on August 24 and 25, 1982. At the conclusion of the state's case, defense counsel renewed the speedy trial and due process motions, which again were denied. The jury found that defendant had been convicted of four felonies as charged in the habitual offender information. The trial judge began the sentencing hearing immediately after the verdict. At the conclusion of the sentencing hearing, the court sentenced defendant to eighteen months on each of the underlying burglary convictions, to be served concurrently. It then suspended execution of those sentences. In addition, the court sentenced defendant to a mandatory eight years of imprisonment pursuant to the Habitual Offender Act, and one year of parole following his release. R.Vol. I at 171. Defendant received credit for 563 days of presentence confinement.
SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL
A. Delay in Sentencing on the Burglary Conviction.
Defendant claims that the fifteen month delay between his guilty plea and final
Because "the right to a speedy trial is a more vague concept than other procedural rights," Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972), courts are compelled to "approach speedy trial cases on an ad hoc basis," id. at 530, 92 S.Ct. at 2192. Whether a particular individual's rights have been violated "depends upon the circumstances." Pollard v. United States, 352 U.S. at 361, 77 S.Ct. at 486. This determination requires "a functional analysis of the right in the particular context of the case." Barker v. Wingo, 407 U.S. at 522, 92 S.Ct. at 2188.
Certain factors, however, should be taken into consideration. In Pollard the Supreme Court said "[t]he delay must not be purposeful or oppressive." Pollard v. United States, 352 U.S. at 361, 77 S.Ct. at 486. That standard was applied by this court in Whaley v. United States, 394 F.2d at 401, and referred to, in general, in United States v. Sherwood, 435 F.2d at 868. Subsequently, in Barker those implied inquiries into the reason for the delay and the existence of prejudice were amplified and articulated somewhat differently. The Court stated:
Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192 (emphasis added).
We note at the outset that the factors set forth in Barker are guidelines, not rigid tests. As the Court stated, no single factor is "either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." Barker, 407 U.S. at 533, 92 S.Ct. at 2193. Rather, all four factors are to be balanced in light of the facts and circumstances of the case. Id.; see also Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189-90, 38 L.Ed.2d 183 (1973). Obviously, a delay in sentencing involves considerations different from those related to pre-trial delay. The alteration of defendant's status from accused and presumed innocent to guilty and awaiting sentence is a significant change which must be taken into account in the balancing process. Once guilt has been established in the first instance the balance between the interests of the individual and those of society shift proportionately. In this case, after analyzing defendant's arguments within the framework of the factors set forth in Barker, and in the context of defendant's case, we find that the delay in sentencing did not deny him the right to a speedy trial. The details of our analysis follow.
The first question is whether the fifteen month delay between defendant's plea of guilty and sentencing is sufficiently long to trigger the necessity for further inquiry. "Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker v. Wingo, 407 U.S. at 530, 92 S.Ct. at 2192; see also United States v. Jenkins, 701 F.2d 850, 856 (10th Cir.1983); Smith v. Mabry, 564 F.2d 249, 251-52 (8th Cir.1977), cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499 (1978); Trigg v. Tennessee, 507 F.2d 949, 953 (6th Cir.1974), cert. denied, 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 414 (1975). Other courts have rejected speedy trial claims in cases in which the period from the entry of a plea, or from conviction, to sentencing was considerably longer than it was here. See, e.g., Pollard v. United States, 352 U.S. at 354, 77 S.Ct. at 481 (24 months); United States v. Tortorello, 391 F.2d at 587 (29 months). Indeed, in those cases in which courts have viewed delays in sentencing as excessive, the delays have tended to far exceed eighteen months. See, e.g., United States v. Campbell, 531 F.2d at 1333 (six year delay; case remanded for consideration of defendant's allegations of prejudice); Juarez-Casares v. United States, 496 F.2d 190 (5th Cir.1974) (delay of 31 months; sentence vacated and defendant released); United States v. James, 459 F.2d 443 (5th Cir.), cert. denied, 409 U.S. 872, 93 S.Ct. 202, 34 L.Ed.2d 123 (1972) (three-year delay unreasonable, but no relief granted because no prejudice resulted); Brady, 443 F.2d 1307 (4th Cir.
In analyzing the length of delay, it is "impossible to determine with precision when the right has been denied. We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate." Barker, 407 U.S. at 521, 92 S.Ct. at 2187. Nevertheless, we find the delay of some fifteen months from defendant's guilty plea until the time he was sentenced sufficiently long to provoke an inquiry into the other factors identified in Barker.
Accordingly, we next assess the reasons for delay. In so doing we draw guidance from Pollard, a delay in sentencing case. There, the Supreme Court declared that the delay must not be purposeful. 352 U.S. at 361, 77 S.Ct. at 486. For example, the delay must not be the result of a deliberate attempt by the government to hamper the defense, gain a tactical advantage, or to harass the defendant. See Barker v. Wingo, 407 U.S. at 531 n. 32, 92 S.Ct. at 2192 n. 32 (citing Pollard, 352 U.S. at 361, 77 S.Ct. at 485-86; United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 466, 30 L.Ed.2d 468 (1971)). The delay in this case does not approach that category. Instead, the delay sprang from two basic reasons which were entirely justifiable and proper. The first was an attempt by the court and the parties to benefit the defendant by deferring sentencing pending the outcome of an expected habitual criminal charge.
Defendant contends that the court need not have deferred sentencing in order to preserve its options to benefit the defendant at a later sentence enhancement proceeding. But he does not deny the good faith purpose of that initial delay as an attempt to act in his best interests. Furthermore, he fails to identify one iota of real advantage the government gained or could reasonably have been expected to gain by a delay in his sentencing.
Defendant also contends that the government did not require ten and one-half months
Next, we address the question of defendant's assertion of his speedy trial right.
Finally, we turn to the question of prejudice. While a showing of prejudice may not be absolutely necessary in order to find a Sixth Amendment violation, Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189-90, 38 L.Ed.2d 183 (1973), we have great reluctance to find a speedy trial deprivation where there is no prejudice, United States v. Martinez, 776 F.2d 1481 (10th Cir.1985); United States v. Brown, 600 F.2d 248, 254 (10th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 233, 62 L.Ed.2d 172 (1979). This is especially true in a post-conviction situation. In fact, it might be said that once a defendant has been convicted it would be the rarest of circumstances in which the right to a speedy trial could be infringed without a showing of prejudice. Moreover, the necessity of showing substantial prejudice would dominate the four-part balancing test. This is so because of the traditional interests the speedy trial guarantee is designed to protect: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193; United States v. Marion, 404 U.S. at 320, 92 S.Ct. at 2187; see also United States v. Askew, 584 F.2d 960, 962 (10th Cir.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 94 (1979); Smith v. Mabry, 564 F.2d 249, 252-53 (8th Cir.1977). As the Court stated in Barker, the most serious of the interests protected by the speedy trial right is the ability of the defendant to prepare his defense. "If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193. Potential prejudice to an accused in a pretrial situation includes public scorn, deprivation of employment, disruption of family life, and the detrimental impact on the individual when jailed awaiting trial. Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193; Klopfer v. North Carolina, 386 U.S. 213, 221-22, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967).
Most of those interests diminish or disappear altogether once there has been a conviction. Because the rights of society proportionately increase, the prejudice claimed by the defendant must be substantial and demonstrable.
The benefits arguably available to defendant in the penitentiary are entirely speculative not only concerning whether he would have qualified, but also concerning the extent to which he would have participated or benefited. There is no record at all with respect to the alleged medical problem.
Post-conviction, pre-sentence anxiety is briefly mentioned by the defendant, citing State v. Cunningham, 405 A.2d 706 (Del.1979), and Jack v. United States, 341 F.2d 273 (10th Cir.1965). Cunningham was reversed, 414 A.2d 822 (Del.1980), and Jack is distinguishable on its face. There is nothing in the record to support the defendant's contention that he suffered anxiety with respect to the delay in his sentencing or, if so, to what extent. It would be just as reasonable to assume that he was reassured to some degree by the court's solicitude over the possible detrimental effect of immediate sentencing. Furthermore, the anxiety of an accused is not to be equated for constitutional purposes with anxiety suffered by one who is convicted, in jail, unquestionably going to serve a sentence, and only waiting to learn how long that sentence will be.
Having analyzed defendant's argument within the framework of the factors set forth in Barker, we conclude that the delay in sentencing did not deprive the defendant of his right to a speedy trial.
B. Habitual Offender Charge.
The New Mexico Habitual Criminal Act, N.M.Stat.Ann. §§ 31-18-17 to 31-18-20 (1978 & Supp.1981), provides for longer, mandatory sentences to be imposed on repeat felony offenders. "The statute does not create a new offense but merely provides a proceeding for enhancing sentences." State v. Nelson, 96 N.M. 654, 634 P.2d 676, 677 (1981). And, the proceeding itself "is a sentencing procedure and not a trial of an offense." Id.; see also State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965); State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966); Linam v. Griffin, 685 F.2d 369 (10th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447 (1983). From that proposition, defendant argues that the habitual offender proceeding in this case was part of his burglary prosecution. Therefore, he argues the enhancement sentencing was also delayed for at least fifteen months. If so, this argument
Defendant next argues that if the habitual offender proceeding was separate for Sixth Amendment purposes, then there was unconstitutional delay in bringing that charge to trial. He reasons that his speedy trial right attached at the hearing where he pleaded guilty to the burglary charges, because the prosecutor "publicly announced ... his intention to file...." Appellant's Brief at 17. Defendant points to his continued incarceration in the county jail instead of the penitentiary as "`the actual restrains [sic] [of] arrest' on the forthcoming supplemental information," Appellant's Brief at 17 (citing United States v. Marion, 404 U.S. at 307; United States v. Pino, 708 F.2d 523, 527 n. 5 (10th Cir.1983); United States v. McLemore, 447 F.Supp. 1229, 1234-36 (E.D.Mich.1978)). None of those cases stands for the proposition that speedy trial rights attach when the government expresses an intention to file charges, or that continued imprisonment in the county jail instead of removal to the penitentiary amounts to an arrest on a charge not yet filed.
Sixth Amendment speedy trial rights do not apply to preindictment or preinformation delay. "Events which trigger Sixth Amendment protection are the formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge...." United States v. Marion, 404 U.S. at 320, 92 S.Ct. at 2187; United States v. Pino, 708 F.2d at 527 n. 5; United States v. Jenkins, 701 F.2d at 854 n. 4. It is not necessary for us to decide whether the habitual offender charge in this case was a separate proceeding for purposes of the Sixth Amendment speedy trial guarantee.
Accordingly, we hold that defendant was not deprived of his right to a speedy trial with respect to the habitual offender proceeding.
DUE PROCESS CLAIM
Defendant's alternate theory is that the delay in bringing the habitual offender
The district court's judgment dismissing defendant's petition for a writ of habeas corpus is hereby affirmed.
The right to a speedy trial is "fundamental" and is imposed by the Due Process Clause of the Fourteenth Amendment on the states. Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Indeed, the "right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment." Klopfer v. North Carolina, 386 U.S. at 223, 87 S.Ct. at 993.