Abedon Saiz v. Warden Frank Eyman

Ninth Circuit

Abedon Saiz v. Warden Frank Eyman

446 F.2d 884

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 14, 1971

Docket71-1218

StatusPublished

Cited by6 cases

This text of 446 F.2d 884 (Abedon Saiz v. Warden Frank Eyman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Abedon Saiz v. Warden Frank Eyman, 446 F.2d 884 (9th Cir. 1971).

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Opinion

*885 PER CURIAM:

Abedon Saiz, an Arizona state prisoner, has taken this appeal from a District Court order denying his petition for writ of habeas corpus without an eviden-tiary hearing.

We are not persuaded, in the circumstances of this case, that there was such inordinate delay between the time of the commission of the offense and the time of filing of a formal criminal complaint as to deny due process or the right to speedy trial. Cf. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Penland, 429 F.2d 9 (9th Cir. 1970); York v. United States, 389 F.2d 761 (9th Cir. 1968); Moser v. United States, 381 F.2d 363 (9th Cir. 1967), cert. den. 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 850 (1968). The complaint was filed within the period of the statute of limitations, and the present record fails to show that Saiz was prejudiced by the delay in filing formal charges. Saiz’s bare allegation that delay dimmed his memory of events does not show actual prejudice. See United States v. Bray, 442 F.2d 1064 (9th Cir. 1971); United States v. Penland, 429 F.2d 9 (9th Cir. 1970). The general allegation that three potential witnesses and the robbery victim were unavailable as a result of the delay is too vague to establish that “there is a reasonable possibility that the jury could have reached a different result by considering the asserted evidence foreclosed by delay.” Estrella v. United States, 429 F.2d 397, 400 (9th Cir. 1970). See United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). Moreover, there has been no showing in this case that the delay was the result of purposeful or oppressive Government conduct.

Based as it is on the insufficiency of the allegations of the petition, our decision in this case should not be read to preclude District Court consideration of a future petition containing allegations of prejudice that do meet the standards of Estrella, supra, and Walton, supra.

Affirmed.

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*885 PER CURIAM:

Abedon Saiz, an Arizona state prisoner, has taken this appeal from a District Court order denying his petition for writ of habeas corpus without an eviden-tiary hearing.

We are not persuaded, in the circumstances of this case, that there was such inordinate delay between the time of the commission of the offense and the time of filing of a formal criminal complaint as to deny due process or the right to speedy trial. Cf. United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States v. Penland, 429 F.2d 9 (9th Cir. 1970); York v. United States, 389 F.2d 761 (9th Cir. 1968); Moser v. United States, 381 F.2d 363 (9th Cir. 1967), cert. den. 389 U.S. 1054, 88 S.Ct. 802, 19 L.Ed.2d 850 (1968). The complaint was filed within the period of the statute of limitations, and the present record fails to show that Saiz was prejudiced by the delay in filing formal charges. Saiz’s bare allegation that delay dimmed his memory of events does not show actual prejudice. See United States v. Bray, 442 F.2d 1064 (9th Cir. 1971); United States v. Penland, 429 F.2d 9 (9th Cir. 1970). The general allegation that three potential witnesses and the robbery victim were unavailable as a result of the delay is too vague to establish that “there is a reasonable possibility that the jury could have reached a different result by considering the asserted evidence foreclosed by delay.” Estrella v. United States, 429 F.2d 397, 400 (9th Cir. 1970). See United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969). Moreover, there has been no showing in this case that the delay was the result of purposeful or oppressive Government conduct.

Based as it is on the insufficiency of the allegations of the petition, our decision in this case should not be read to preclude District Court consideration of a future petition containing allegations of prejudice that do meet the standards of Estrella, supra, and Walton, supra.

Affirmed.

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