                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-9-2009

Conroy v. Leone
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4929




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"Conroy v. Leone" (2009). 2009 Decisions. Paper 1762.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     ____________

                                     No. 06-4929
                                    _____________

                                 THOMAS CONROY,

                                            Appellant

                                            v.

                         CHARLES C. LEONE;
       *STUART RABNER, The Attorney General Of The State Of New Jersey;
               JOHN L. MOLINELLI, Bergen County Prosecutor

                             *(Pursuant to Rule 43(c), F.R.A.P.)
                                    ____________


                    On Appeal from the United States District Court
                             for the District of New Jersey
                                    No. 05-cv-03792
                     District Judge: Honorable Peter G. Sheridan

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 19, 2008


    Before: BARRY and CHAGARES, Circuit Judges, and COHILL, District Judge 1


                                 (Filed: March 9, 2009)



1
 The Honorable Maurice B. Cohill, Jr., Senior United States District Judge for the
Western District of Pennsylvania, sitting by designation.
                                OPINION OF THE COURT

CHAGARES, Circuit Judge.

       This case comes to us on appeal after Thomas Conroy’s writ of habeas corpus was

denied by the District Court. Conroy argues that his Sixth Amendment right to a speedy

trial was violated in New Jersey state court. For the reasons stated below, we will affirm

the ruling of the District Court.

                                                  I.

       Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts. On June 1, 1998, Nicholas Kyriazis and Mark Vassos

broke into Helen Imperatore’s home in Fort Lee, New Jersey. Her friend and house

assistant, Margaret Madden, was also there. Kyriazis and Vassos threatened to kill the

two women if they did not tell them where money was located. They then tied the women

up, and stole money and jewelry. The homeowner later offered a $10,000 reward for tips

regarding the crime. The next day, acting on such a tip, police went to a jewelry store in

Bloomfield, New Jersey, where the owner told them that Kyriazis had come in earlier

with jewelry and told the owner that he and “Mark” had “done a ‘job’ in Fort Lee” the

night before. The owner consented to a search of the store, and the police recovered

some of the stolen jewelry.

        Later that day, also in Bloomfield, the police saw a car that met the description of

the car that Kyriazis was driving. The police stopped the car and arrested the three people

                                              2
inside, including Conroy. When the police searched the car, they recovered cash as well

as the drug Xanax. Conroy gave the police consent to search his home, and they

subsequently found jewelry matching the description of jewelry that had been stolen the

night before, as well as clothing which had burrs on it which matched burrs outside of the

victim’s home.

       Conroy was later indicted for multiple crimes, including second degree conspiracy

to commit armed robbery and second degree conspiracy to commit theft under N.J. Stat.

Ann. § 2C:5-2; second degree theft by receiving stolen property, N.J. Stat. Ann. § 2C:20-

7; and third degree unlawful possession of Xanax, N.J. Stat. Ann. § 2C:35-10a(1).

Conroy, along with his co-defendants Vassos and Kyriazis, filed various motions to

suppress evidence, and hearings on these motions were held by the state trial court

between August 1, 2000 and October 11, 2000. The motions were denied on October 11,

2000. Vassos was tried between July 11, 2001 and July 26, 2001. On or around

September 19, 2001, Conroy’s counsel filed a motion to dismiss the indictment for lack of

prosecution, and this motion was later denied. Kyriazis was tried between January 7,

2002 and February 4, 2002. Conroy was tried between April 29, 2002 and May 28, 2002.

       A jury found Conroy guilty of conspiring to commit armed robbery and theft,

trafficking in and receiving stolen property, and unlawful possession of Xanax. He was

sentenced to 23 years in prison with seven and a half years of parole ineligibility. His

conviction was affirmed by the New Jersey Superior Court (the Appellate Division) and



                                             3
his petition for certification to the New Jersey Supreme Court was denied on May 25,

2005.

        Conroy then filed a petition for a writ of habeas corpus in the United States

District Court for the District of New Jersey, which was denied. This Court later granted

Conroy’s application for certificate of appealability on the issue of whether his right to a

speedy trial had been violated.

                                             II.

        The District Court had jurisdiction pursuant to 28 U.S.C. § 2254. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We exercise de novo review over

the decision of the District Court. Douglas v. Cathel, 456 F.3d 403, 417 (3d Cir. 2006).

We will deny Conroy habeas relief unless we find that adjudication of “any claim that

was adjudicated on the merits in State Court proceedings” (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 in a decision that was

based on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.” 28 U.S.C. § 2254(d)(1) and (2).

        The issue before this Court is whether the state court merits adjudication involved

an unreasonable application of clearly established federal law.2 Unreasonable in this



2
 The parties do not dispute that there was a state court adjudication on the merits nor do
they dispute that the adjudication was based on a reasonable determination of the facts.
In addition, we note that Conroy has not alleged that the decision of the Appellate

                                              4
context means “objectively unreasonable,” and “. . . a federal habeas court may not issue

the writ simply because [it] 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.” Williams v. Taylor, 529 U.S. 362, 409, 411

(2000).

                                             III.

       The clearly established federal law relevant to this appeal is the portion of the

Sixth Amendment that states “[i]n all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial,” and the Supreme Court’s decision in Barker v. Wingo,

407 U.S. 514 (1972), interpreting this provision. The Supreme Court has set forth a

balancing test to determine whether an accused’s Sixth Amendment speedy trial rights

have been violated. Courts must weigh the “[l]ength of delay, the reason for the delay,

the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530.3

       The length of the delay figures into the speedy trial analysis twice. First, it is used

to determine whether Barker is triggered at all. Hakeem v. Beyer, 990 F.2d 750, 759-60



Division was “contrary to . . . clearly established law as determined by the Supreme
Court.” 28 U.S.C. § 2254(d)(1).


3
  The Court in Barker stated, however, that “none of the four factors” are “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 other such
circumstances as may be relevant.” 407 U.S. at 533.



                                              5
(3d Cir. 1993). If the delay is long enough to trigger Barker, it is then analyzed as “one

factor among several,” and courts should measure the “extent to which the delay stretches

beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett

v. United States, 505 U.S. 647, 652 (1992). Although it did not explicitly so state, the

Appellate Division presumably found the delay long enough to trigger Barker, as it then

conducted its analysis under Barker. This finding was objectively reasonable. Hakeem,

990 F.2d at 755 (finding that a delay of fourteen and one half months “triggers a Barker

inquiry.”).

        Analyzing the case under the Barker factors, the Appellate Division presumably

found the first Barker factor weighed in favor of Conroy, as it stated that it “agree[d] with

the defendant that the delay was lengthy.” Appendix (App.) at Da35. This is an

objectively reasonable interpretation, as Conroy was held four years between his arrest

and trial.

       With regard to the second Barker factor, the Appellate Division found that the case

was “delayed for valid reasons.” App. at Da35. The Appellate Division found that the

case was “complex . . . involving multiple defendants, numerous charges and a variety of

witnesses.” Id. It stressed that Conroy and the other defendants filed “substantial

motions to suppress evidence,” and that “[a] delay caused by a defendant will not weigh

in favor of a finding of a speedy trial violation.” Id. at Da36. Another reason for the

delay was that because there were three defendants who were all tried separately but



                                              6
required testimony from the same witnesses, “all three trials could not proceed

simultaneously and some prioritization was required.” Id.

       On appeal, Conroy argues that the delay was a “deliberate attempt by the state to

hamper the defense.” Appellant Br. at 10. While he acknowledges that the state’s

asserted reason for the delay -- trial strategy -- is “a reasonable reason for the delay,” he

nevertheless contends that “[m]erely stating that it is a trial tactic is not [a] sufficient[,]

valid reason to hold the defendant for nearly four years . . . .” Id. at 11. Despite his

assertions, we find that the Appellate Division’s determination that this factor weighed in

favor of the state was objectively reasonable.

       The Appellate Division relied on more than just a blanket assertion that the factor

weighed in favor of the state because it was “trial strategy” in making this finding.

Indeed, it described the various reasons the trial was delayed, including the actions of

both the state and Conroy, and found that the delay was justifiable. See Doggett, 505

U.S. at 651 (characterizing the second Barker factor as “whether the government or the

criminal defendant is more to blame for that delay. . . .”); id. at 656 (“[P]retrial delay is

often both inevitable and wholly justifiable. The government may need time to collect

witnesses against the accused, oppose his pretrial motions . . .We attach great weight to

such considerations when balancing them against the costs of going forward with a trial

whose probative accuracy the passage of time has begun by degrees to throw into

question.”); Barker, 407 U.S. at 531 (“A deliberate attempt to delay the trial in order to



                                                7
hamper the defense should be weighted heavily against the government. A more neutral

reason such as negligence or overcrowded courts should be weighted less heavily but

nevertheless should be considered. . . .”); Hakeem, 990 F.2d at 770 (finding that once

Barker is triggered, the state must justify the delay). Thus, a finding that this factor

weighed in favor of the state was objectively reasonable.

       With regard to the third Barker factor, the Appellate Division found that Conroy

“delayed in asserting his right to a speedy trial,” not asserting it in a formal motion until

September, 2001, which it found weighed against his claim. App. at Da36.4 Barker

stated that “[t]he defendant’s assertion of his speedy trial right. . . is entitled to strong

evidentiary weight in determining whether the defendant is being deprived of the right.”

407 U.S. at 531-32. We therefore find that it was not objectively unreasonable for the

Appellate Division to find that such a delay weighed against Conroy.

       Finally, the Appellate Division noted that with regard to Barker’s prejudice factor,

Conroy made no “claim that the delay impaired defendant’s ability to defend himself




4
  The Appellate Division found this to be the case despite the fact that Conroy’s counsel
had informally asked about it earlier. App. at Da36. As Conroy himself also implies that
he did not actually ask for it until he made a formal motion, we will not consider whether
the informal request made previously weighs in favor of Conroy. See Conroy Br. at 10-
11.


                                                8
against the charges.” App. at Da36. Therefore, the Appellate Division presumably found

that this factor weighed in favor of the state, which is objectively reasonable.5

       Though we agree that the length of the delay weighs in Conroy’s favor, his delay

in asserting his speedy trial claim coupled with the legitimate reasons given for the delay

plus the absence of any real showing of prejudice by Conroy lead us to find that the

Barker factors here weigh in favor of the state. We hold that the Appellate Division did

not engage in an exercise that “. . . involved an unreasonable application of clearly

established federal law as determined by the Supreme Court” or “resulted in a decision

that was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).




                                              IV.

       We will therefore affirm the District Court’s denial of Conroy’s petition for writ of

habeas corpus.




5
  Conroy included one conclusory sentence in his brief that apparently suggests, for the
first time, that his witnesses suffered prejudice. We find this undeveloped argument has
been waived. See Bagot v. Ashcroft, 398 F.3d 252, 256 (3d Cir. 2005).


                                              9
