Leonard P. Walsh, Senior District Judge.
This matter is before the Court on remand by the United States Court of Appeals for the District of Columbia, United States v. Haywood, 150 U.S. App. D.C. 247, 464 F.2d 756 (decided April 20, 1972). There was a delay of approximately one year from the date of remand until an evidentiary hearing was held on April 5, 1973. This delay was due in part to petitioner's request in August 1972 for leave to discontinue proceedings in forma pauperis and for appointment of counsel. On September 8, 1972 an Order granting leave to retain counsel of petitioner's own choosing was signed by this Court. A status call was set for October 3, 1972, and at the request of petitioner's counsel, who had just entered an appearance as retained counsel, a continuance was granted until November 21, 1972. From this time until April 5, 1973 both counsel for petitioner and counsel for the government requested and received three additional continuances.
On April 5, 1973, pursuant to the remand an evidentiary hearing was held to determine whether the sentence and judgment in this case should be vacated under Title 28, section 2255. The two issues to be presented before this Court were whether there was an illegal search and seizure at petitioner's farm, and whether petitioner had waived his right to object to this search and seizure because of a deliberate by-passing of the orderly procedures available.
Petitioner stands convicted of second degree murder and carrying a dangerous weapon. He is currently on parole from a sentence imposed by this Court on June 17, 1966, of from 6 to 20 years on the second degree murder count, and a concurrent one year sentence for carrying a dangerous weapon. The judgment of the District Court was affirmed, per curiam, on December 16, 1966. Petition for rehearing en banc was denied by per curiam order on February 21, 1967.
On the evening of August 26, 1965, some time around eleven o'clock, Reuben Heldon Harrell, Sr., received a telephone call, and as a result of that call left his apartment. At approximately twelve-thirty A.M., several shots were heard in an alley behind an apartment house located in the 4200 block of Second St., N.W. Reuben Heldon Harrell, Sr. was found shot to death shortly after the shots were heard. The petitioner was positively identified by a witness who testified that he saw Mr. Haywood come out of the alley soon after the shots were fired. At trial there was testimony that Mr. Haywood was seen boarding a bus at the Trailways Station at three A.M. that same morning. The bus was en route to Hagerstown, Maryland, where Mr. Haywood owned a farm. A cab driver remembered driving petitioner from the bus stop in Hagerstown to Mr. Haywood's farm some time after four A.M. The petitioner was arrested on his farm later the same day by Maryland police on an outstanding arrest warrant charging petitioner with first degree murder. After petitioner's arrest, a search warrant was obtained and a search of Mr. Haywood's farm was conducted. The only evidence recovered was a spent bullet and some empty shell casings. Five of the shell cases were found inside the premises. The ballistics expert testified that the slug found on petitioner's farm was a.38 special lead bullet and was manufactured by Remington or Peters Company. The bullets removed from the deceased and from the car door in which the deceased was found were.38 caliber, but were manufactured by either Winchester or Wesson Company. However, the five shell casings recovered inside the premises were manufactured by Winchester. The government expert could not connect the slugs taken from the scene of the crime and the five shell casings as coming from the same weapon. A gunshop owner testified at the trial that he sold Mr. Haywood two.38 caliber revolvers in March and April of 1965. However, defense counsel elicited from the ballistics expert that there were many thousands of.38 caliber revolvers of the same type used to kill Mr. Harrell.
The Court will first make a determination as to whether counsel's failure to object to the evidence at trial or "to raise the issue as to its admissibility on the direct appeal amounted to deliberate bypassing, attributable to appellant . . ." United States v. Haywood, supra.
This Court will follow the guidelines set forth in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963), in evaluating whether there was a deliberate bypass. The Supreme Court in Noia held:
"If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims . . ., whether for strategic, tactical, or any other reasons that can fairly be described as . . . deliberate bypassing . . ., then it is open to the federal court on habeas to deny him all relief . . .". 372 U.S. at 439, 83 S. Ct. at 849.
This Court, after holding a hearing on April 5, 1973, and giving both counsel an opportunity to submit further memoranda, finds that there was an intentional bypassing of the orderly procedures and such bypassing was attributable to petitioner.
At the remand hearing petitioner's trial counsel testified that he had considered the possibility of attempting to suppress the shell cases prior to trial. However, he concluded that from a strategy standpoint the admission of this evidence would help to bolster the defense position that the government's case against Mr. Haywood was a very weak chain of circumstantial evidence. Defense counsel testified that this conclusion was based on several considerations, including the following: Mr. Haywood was not going to testify; there would be independent evidence showing that petitioner had purchased two.38 caliber pistols; the government could make no connection between the shell casings found at the farm and the bullets which inflicted the fatal wounds; and lastly, the search did not produce any.38 caliber revolver that could connect Mr. Haywood with the homicide. Trial counsel's strategy is supported by a careful examination of the trial transcript.
The Government in its opening statement told the jury that they would prove:
"the bullets that entered the deceased's body were from a.38 caliber pistol. We [the prosecution] propose to show that this defendant did have a.38 pistol, . . ." (Tr. 56).
The ballistics expert testified at trial that the murder weapon was either a Colt revolver or a Spanish made copy of a Colt revolver. The ballistics expert on direct examination testified that the Colt revolver was the second most popular weapon in this country. The government expert testified that the deceased was shot by.38 special bullets of the Winchester or Western manufacture. He also testified that the five shell casings were from a.38 Special cartridge manufactured by the Winchester Company. Although the shell casings were of the same caliber and manufacture as the bullets that were used to kill the deceased, the government never referred to these shell casings in either their opening, closing or rebuttal statements to the jury. This was probably because the government experts could not connect any of the evidence found at the farm with the homicide.
The Court believes that there was a deliberate and consistent trial strategy of defense counsel in not objecting to the admissibility of the shell casings recovered from petitioner's farm. In United States ex rel. Cruz v. LaVallee, 448 F.2d 671 (2nd Cir. 1971), cert. den., 406 U.S. 958, 92 S. Ct. 2064, 32 L. Ed. 2d 345, the defendant Cruz argued that the defense counsel's trial strategy could not be considered a waiver of his constitutional right to an evidentiary hearing on the admissibility of his confession at trial. The Appellate Court rejected this contention and stated:
"The Supreme Court stated in Henry v. Mississippi that 'the deliberate by passing by counsel of the contemporaneous-objection rule as a part of trial strategy would have [the] effect' of precluding the defendant from later asserting constitutional claims, even where the trial strategy was adopted by counsel without prior consultation with the defendant. 379 U.S.  at 451-452, 85 S. Ct.  at 569 [13 L. Ed. 2d 408]. A lawyer must be able to determine questions of strategy during trial; and unless there are exceptional circumstances or unless the lawyer is so incompetent as to deprive the defendant of the right to effective assistance of counsel, his decision regarding trial strategy must be binding." 448 F.2d at 679.