                                                                                                                           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Precedential or Non-Precedential: Precedential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
