Hastings, Chief Judge, and Kiley and Major, Circuit Judges.
This action was commenced on application for Writ of Habeas Corpus filed August 10, 1964, to contest the legality of petitioner's detention by respondent in the Indiana State Prison. Respondent filed his return and answer and after hearing, the Court, on July 6, 1965, entered its order denying the application. From this order the appeal comes to this Court.
Petitioner on brief states the contested issues thus:
"1. Does the Speedy Trial Clause of the Sixth Amendment constitute the test of Due Process made obligatory on the states by the Fourteenth?
"2. Under that test, was Petitioner denied a speedy trial where the State deliberately did not try him for a period of three years although he was at all times available for trial, the evidence was at hand, and he did not waive his right to a speedy trial?"
Respondent contends that the Speedy Trial Clause of the Sixth Amendment is not applicable to State Court proceedings but, assuming arguendo to the contrary, that petitioner was not denied a speedy trial because of failure on his part to show that the delay caused by the prosecution was purposeful and oppressive so as to preclude his receiving a fair trial, and that for speedy trial purposes the computation of time should not be based upon the time of the filing of an original affidavit but from the time of the filing of a subsequent affidavit upon which petitioner was convicted.
There is little if any dispute as to the facts, which in the main were stipulated. Even so, the nature of the issues presented calls for their statement in some detail.
On January 29, 1958, petitioner was taken into custody by Evansville police officers in Evansville, Indiana, and confined in the Vanderburgh County Jail in Evansville. On February 3, 1958, the State of Indiana filed in the Vanderburgh County Circuit Court against petitioner a three-count affidavit, charging in Count 1 kidnapping, in Count 2 armed robbery, and in Count 3 automobile banditry. (The alleged kidnapping happened hours after the alleged armed robbery.) Each offense was alleged to have been committed on January 28, 1958, in Vanderburgh County, Indiana.
Petitioner was brought to trial by the State of Indiana on Count 1, and on April 28, 1958, was convicted and sentenced to life imprisonment. On May 28, 1958, he was confined in the Indiana State Prison in Michigan City, Indiana.
Without notice to petitioner, Counts 2 and 3 of the original affidavit were dismissed on June 2, 1958, on motion of the State of Indiana alleging that "the defendant was convicted on Count No. 1."
Petitioner subsequently sought a Writ of Error Coram Nobis, alleging the incompetency of his trial counsel, praying that a Writ of Coram Nobis issue and that the judgment of conviction be set aside. Because of this petition, petitioner was returned to the Vanderburgh County Jail on December 7, 1960. Twelve days later the Writ was granted, without specifying the reasons therefor, and a new trial ordered on Count 1 of the original affidavit.
On December 22, 1960, the State of Indiana filed a new affidavit, charging petitioner with armed robbery. The new affidavit was identical to the original in all respects save only the identity of the affiant.
Petitioner filed a motion to discharge, on March 23, 1961, to which the State of Indiana filed a demurrer, which was sustained April 27, 1961. Petitioner was subsequently convicted by a jury of armed robbery, and sentenced on October 11, 1961, to imprisonment for ten years. The trial court, on November 13, 1961, overruled petitioner's motion for a new trial. On November 14, 1961, petitioner was again confined in the Indiana State Prison in Michigan City, Indiana, pursuant to the commitment issued as a result of the ten-year sentence of October 11, 1961. The conviction was affirmed by the Indiana Supreme Court on October 17, 1963. Finton v. State, 244 Ind. 396, 193 N.E.2d 134 (1963). A petition for Writ of Certiorari was not filed in the United States ...