APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil Action No. 78-00277)
Before Hunter and Sloviter, Circuit Judges, and Meanor,*fn* District Judge.
In December, 1975, the appellant, John H. Bailey, was tried and convicted in a Delaware Superior Court for manslaughter. During his trial, the trial judge instructed the appellant not to discuss his testimony with anybody before the trial resumed the next day. Bailey now challenges that instruction as a denial of his sixth amendment right to counsel. Because we find that the appellant failed to demonstrate that he was deprived of his right to consult with counsel, we will affirm the district court's judgment and deny Bailey's petition for a writ of habeas corpus.
The facts of this case were set forth accurately and succinctly by the district court in its opinion, Bailey v. Redman, 502 F. Supp. 313 (D.Del.1980):
John H. Bailey ... was indicted by the Grand Jury of New Castle County for the crimes of murder in the first degree and possession of a deadly weapon during the commission of a felony. On December 9, 1975, during the third week of his four week trial, petitioner took the stand in his own defense. His direct examination commenced at 10:00 A.M. and continued until the luncheon recess. The trial resumed at 2:00 P.M. and petitioner's direct testimony lasted until mid-afternoon. Cross-examination was not completed by the end of the day and the Court, before recessing, issued the following order to the petitioner:
The Court: ... Mr. Bailey, during the evening recess, I caution you and instruct you that you are not to discuss your testimony with anybody until you have completed your testimony in this case. Do you understand?
The Witness: (Witness nodded affirmatively)
This instruction was neither questioned nor objected to by Bailey's counsel. The Court then recessed from 5:15 P.M. on December 9, 1975 to 10:00 A.M. on the following day, a total of seventeen hours. Petitioner, who was in custody during the trial period, was returned to the Delaware Correctional Center in Smyrna, Delaware for the night. During this seventeen hour recess, the petitioner did not consult with counsel.
The state's cross-examination continued on December 10, 1975. During the morning session petitioner's counsel interposed objections to the scope and repetitive character of the state's cross-examination, but neither questioned the propriety of the previous afternoon's instructions nor asked for permission to consult with his client. Cross-examination was completed later that morning.
Defendant was sentenced on February 5, 1976 to imprisonment for thirty years for the manslaughter and ten years for the felony-weapon offense, with the sentences to run consecutively.
Bailey appealed his conviction through the state courts.*fn1 He did not raise the issue that is now before us, however, until he sought post-conviction relief before the trial court.*fn2 The trial court denied appellant's application for post-conviction relief and the Delaware Supreme Court affirmed that decision on July 17, 1980. Bailey v. State, 422 A.2d 956 (Del.Supr.1980).
Following his state appeals, appellant petitioned the District Court of Delaware for a writ of habeas corpus. 28 U.S.C. § 2254 (1976). He alleged that under Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) and United States v. Venuto, 182 F.2d 519 (3d Cir. 1950), the trial court's ...