Full opinion text
RULING ON MOTION TO ALTER OR AMEND JUDGMENT JOSE A. CABRANES, District Judge: By a motion to alter or amend a judgment entered with the consent of both parties (styled “Motion to Open and Amend Judgment”), the Office of the Chief State’s Attorney, a part of the judicial department of the state government, seeks the reincarceration of a man released from prison by this court; the state had urged his release, pursuant to a writ of habeas corpus issued by the court, after it conceded that it had violated his constitutional right to a speedy trial. Robert J. McCarthy was convicted of murder at a trial held in the Superior Court of the State of Connecticut in January 1977, fully 21 months after he was arrested and charged with the offense. After having pursued state appellate remedies, and having served five years of a twenty-five years-to-life sentence, he petitioned this court for a writ of habeas corpus, alleging that he had been denied the right to a speedy trial guaranteed by the Sixth Amendment to the United States Constitution. The case was referred to United States Magistrate F. Owen Eagan pursuant to 28 U.S.C. § 636(b) and Rule 10, Rules Governing Section 2254 Cases in the United States District Courts. The issuance of a writ was recommended by Magistrate Eagan after a three-day evidentiary hearing. Counsel for the respondent state authorities concurred in the magistrate’s recommendation that a judgment enter for the petitioner and that he be released from prison. After McCarthy’s release, the Chief State’s Attorney discussed the matter with the Chief Court Administrator of the State of Connecticut, and thereafter, upon reconsidering the state’s position, the Chief State’s Attorney moved to undo the results of the earlier representations to this court by his agents and subordinates. The court declines to alter or amend its prior judgment, but intimates no view as to the speedy trial rights of other habeas corpus petitioners. Robert J. McCarthy is today a free man because (1) the state of Connecticut denied his constitutional right to a speedy trial; (2) the state’s attorneys conceded that McCarthy’s rights had been violated; (3) the state’s attorneys consented to the issuance of a writ of habeas corpus and the release of McCarthy from prison; and (4) even were any of those conclusions not beyond doubt, the state’s attorneys failed to raise objections in a timely and proper way to the magistrate’s recommended decision on this matter. The result is limited to the particular circumstances of this case, in which both parties urged the court to grant habeas relief, and in which subsequent application to have the court alter its prior judgment was not made properly under the law. The harsh fact is that the effect of the state’s conduct is the release from imprisonment of a man convicted by a jury of a serious crime. Those who worry about the standards that govern our system of justice will be troubled by this consequence. Yet, however harsh that outcome, the resolution of this case does not present a triumph of form over substance. On the contrary, this court’s decision today is compelled by the necessity that principles of law, whether embodied in the Constitution and laws of the United States, the Federal Rules of Civil Procedure or the local rules of this district court, must remain fixed and secure. The strictures governing court and prosecutor alike are designed to insure that the processes of criminal justice are carried out with care and deliberation, for were the law applied casually and without thought, the result would not be justice, and the enforcers of the law would become merely the custodians of power. Thus, though the holding of this case is limited to its facts, the principles controlling that holding are of more than local significance. The requirement that objections to the recommendations of a United States magistrate be timely filed, the integrity of a judgment of this court entered upon the avowed consent of both parties, and the reliability of the state’s representations: those are the standards at issue in this case. To maintain such principles is not to undermine' our legal system but to assure that it is founded upon the most solid bedrock. Accordingly, the motion to alter or amend the judgment fails for various reasons, any one of which, standing alone, would be sufficient to determine the outcome. The motion is denied. Facts On April 5, 1975, the Norwalk, Connecticut police arrested Robert J. McCarthy, the petitioner, in connection with the shooting of two persons. McCarthy was then charged under state law with the crimes of murder and attempted murder. McCarthy pleaded not guilty to both charges, and elected to be tried by a jury. The trial, originally scheduled for July 10, 1975, was delayed at the request of the state until November 3, 1976 — that is, until nearly nineteen months after McCarthy’s arrest. See Findings of Fact and Recommended Decision (filed Oct. 29, 1981), 554 F.Supp. 1275, 1293-1309 (“Recommended Decision”) at 1293-1298. McCarthy was incarcerated throughout the time he was awaiting trial and sought a trial on numerous occasions during the lengthy period of time between arrest and trial. His first formal request to the Superior Court for a trial (styled “Motion for a Speedy Trial”), Recommended Decision at 1294, was made on August 28, 1975, about six weeks after the original postponement of his trial. This request was opposed by the state’s attorney’s office and denied by the Superior Court on September 16, 1975. Thereafter, McCarthy filed no fewer than three additional motions to have his case dismissed because of the asserted failure to afford him the speedy trial guaranteed by the Sixth Amendment. Neither McCarthy nor his counsel made a single request for a postponement during the period between McCarthy’s arrest and his long-delayed trial. Id. at 1295. When McCarthy was finally brought to trial, on November 3,1976, a mistrial resulted. On January 11, 1977, McCarthy was retried. At trial, the state sought to prove that McCarthy, although not physically present at the scene of the murder, had aided and abetted Jean Siretz, who actually shot the victims. The state’s principal witness was Siretz, who had earlier pleaded guilty to the murder and attempted murder charges, and was sentenced to prison for a period of seven and one-half to fifteen years. On February 2, 1977, McCarthy, who was alleged to have solicited Siretz’s action, was found guilty of the murder itself, and of attempted murder, pursuant to C.G.S. § 53a-8. On March 18, 1977 he was sentenced to concurrent terms of imprisonment of 10 to 20 years, and 25 years to life. Recommended Decision at 1294. After sentencing, McCarthy appealed his conviction, alleging, inter alia, that his right to a speedy trial, as guaranteed by the United States and Connecticut Constitutions, had been violated. On September 4, 1979, the Supreme Court of the State, of Connecticut affirmed McCarthy’s conviction, and, on September 18, 1979 that court denied McCarthy’s motion to reargue his case. State v. McCarthy, 179 Conn. 1, 425 A.2d 924 (1979); Recommended Decision at 1293. Having failed to obtain relief from the Supreme Court of Connecticut, McCarthy, on April 28, 1980, filed a petition for a writ of habeas corpus in the United States District Court for the District of Connecticut. On September 15,1980, McCarthy’s petition was referred to Magistrate Eagan for hearing and a recommended decision. On October 29,1981, after an evidentiary hearing and extensive briefing, the magistrate filed his recommended decision. He concluded that McCarthy had exhausted his state remedies and, therefore, that the district court could properly entertain his constitutional claims. Recommended Decision at 1298-1299. The magistrate then applied the test enunciated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether an individual’s right to a speedy trial had been violated. He found that the length of McCarthy’s pretrial incarceration was presumptively prejudicial, Recommended Decision at 1300; that McCarthy had vigorously and timely sought a speedy trial, id. at 1300-1301; and that there was no acceptable justification for the delay. Id. at 1304. In addition, the magistrate found that the lengthy delay in bringing McCarthy to trial had caused McCarthy actual and substantial prejudice. Id. at 1305; see generally id. at 1299-1309. For these reasons, the magistrate held that McCarthy’s federal constitutional right to a speedy trial had been violated, and recommended that the court grant McCarthy’s petition for a writ of habeas corpus and thereby release him from prison. Id. at 1308-1309. No objection was filed to the recommended decision. In the absence of the court’s approval of the recommended decision (for reasons stated in the record and partly set forth in the margin), counsel for petitioner on December 10, 1981 filed a motion for immediate review and acceptanee of the recommended decision. The court then scheduled a hearing on the recommended decision for January 13, 1982. At that hearing, the duly authorized counsel for respondent, see Findings of Fact (filed Dec. 3, 1982) (“Findings”) (unpublished) ¶¶ 30, 36-37, 42-43, 54, asked the court to enter judgment in favor of McCarthy, to grant McCarthy’s habeas petition, and to release McCarthy from custody. Id. ¶¶ 45-47. The state’s attorney stated that he agreed that McCarthy’s right to a speedy trial, as guaranteed by the United States Constitution, had been violated, although he did not concur with every aspect of Magistrate Eagan’s recommended decision. Id. ¶¶ 31-36, 43; see Certified Official Transcript of Hearing Held on January 13, 1982 (filed Jan. 21, 1982) (“Tr. Jan. 13, 1982”) at 44 — 49. The state’s attorney, who had had significant experience in the handling of habeas cases and who was familiar with questions regarding the requisite exhaustion of state remedies, Findings ¶¶ 13-24, acted after having made an independent assessment of McCarthy’s exhaustion claim and after having concluded that McCarthy had indeed exhausted his state remedies before seeking relief in the federal court. Id. ¶¶ 31-32; see also id. ¶¶ 18, 43-44. Both petitioner and respondent agreed that the court should enter judgment for McCarthy and release him by adopting the result recommended by the magistrate. Id. ¶¶ 35-37, 42-48; Tr. Jan. 13, 1982 at 40-49. Accordingly, on January 15, 1982, the court adopted the magistrate’s recommended decision pursuant to the agreement and consent of counsel for both parties. Judgment in favor of McCarthy was entered on January 18, 1982; the judgment was amended on January 19, 1982 solely for the purpose of stating with particularity that the judgment was entered at the urging of counsel for both respondent and petitioner and with their consent. No appeal was taken from either the January 18,1982 judgment or the January 19, 1982 amended judgment and respondent reports that the state of Connecticut released McCarthy from prison on January 18, 1982 pursuant to the judgment entered on that date. Memorandum in Support of Respondent’s Renewed Motion for Stay of Execution (filed Aug. 24, 1982) at 2. Shortly after the entry of the judgment by consent, and after McCarthy’s release from prison, the Chief State’s Attorney of the State of Connecticut discussed this court’s decision with the Chief Court Administrator of the State of Connecticut. See Findings ¶¶ 50-54; Certified Official Transcript of Hearing Held on May 5, 1982 (filed May 25, 1982) (“Tr. May 5, 1982”) at 175-185. Following that discussion, the Chief State’s Attorney reviewed the state and federal proceedings involving McCarthy, and on January 26, 1982, the Office of the Chief State’s Attorney, see Findings ¶¶ 1-5, filed and served a motion to alter or amend the judgment of the court pursuant to Rule 59(e), Fed.R.Civ.P. The parties thereafter filed memoranda on the motion. Among the issues raised by those memoranda was whether the motion had been filed in a timely fashion and in proper form under applicable rules. On February 4, 1982, the court held a hearing on the motion, after which further briefing by the parties was scheduled. On February 19, 1982, petitioner moved for an evidentiary hearing, and on March 1, 1982 that motion was granted. Following a hearing on May 5, 1982 and the submission of memoranda and proposed findings of fact in late June 1982, the motion was submitted for decision. Discussion The decision whether to alter or amend a judgment pursuant to a proper motion under Rule 59(e) is within the discretion of the district court. 6A Moore’s Federal Practice ¶59.15[4] at 59-294 n. 9 (1982); see also Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77, 78 (3d Cir.1982). In the exercise of that discretion, the court determines that respondent’s motion must be denied. Respondent failed to file a timely objection to the magistrate’s recommended decision. After consenting to the entry of judgment, respondent failed to show that new or unforeseen conditions required the court to alter or amend the judgment so entered. Finally, respondent’s underlying claim, that petitioner had failed to exhaust state remedies, was effectively waived by the state’s attorney. I. Assuming that the motion to alter or amend the judgment was properly served, the court is required to deny the motion without reaching the merits of the respondent’s asserted objections to the magistrate’s recommended decision; the respondent having failed to file and serve a timely objection to the recommended decision, cannot obtain an opportunity to relitigate the recommended decision by filing a Rule 59(e) motion after the entry of final judgment. The statute pursuant to which this case was referred to Magistrate Eagan permits a district judge to “designate a magistrate to conduct hearings ... and to submit to a judge of the court proposed findings of fact and recommendations[.]” 28 U.S.C. § 636(b)(1)(B). The goal of the federal statute providing for the assignment of cases to magistrates is to “ ‘increas[e] the overall efficiency of the federal judiciary,’ ” Nettles v. Wainwright, 677 F.2d 404, 406 (Former 5th Cir.1982) (en banc) (quoting S.Rep. No. 12, 90th Cong., 1st Sess. 11 [1967]) while preserving for litigants the opportunity to have their claims heard by a district judge. See Sick v. City of Buffalo, 574 F.2d 689, 692-693 (2d Cir.1978). To further these goals, parties are afforded an opportunity to obtain de novo review of a magistrate’s recommended decision, but only if they file objections within certain time limits. 28 U.S.C. § 636(b)(1). Requiring a de novo determination absent the filing of a timely objection “would defeat the main purpose of the [federal statute permitting referral to magistrates.]’’ Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980). See also United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982) (per curiam) (extending the rule of Park Motor Mart to criminal cases; “not only was there no objection to the magistrate’s report, but defense counsel moved that it be adopted. And the court, noting first that no objections had been filed, did so.”). Both the federal statute and the rules of procedure governing federal habeas corpus cases require the filing of an objection within ten days of service of a magistrate’s recommended decision. 28 U.S.C. § 636(b)(1); Rule 8(b)(3), Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Corpus Rules”). The rules for magistrates in this district require the filing and service of objections, if any, within fifteen days after the filing of the recommended decision. Rule 2, Local Rules for United States Magistrates, District of Connecticut (“Local Rules for Magistrates”). Under these various rules, a party who files a timely objection to a magistrate’s recommended decision receives a “de novo determination” of the matters to which he has objected. The authority of the district judge to accept, reject, or modify a magistrate’s recommended decision is clear, 28 U.S.C. § 636(b)(1); Rule 8(b)(4), Habeas Corpus Rules; Rule 2, Local Rules for Magistrates; Sick v. City of Buffalo, supra, 574 F.2d at 692-693; Consorcio Constructor Impregilo v. Mack Trucks, Inc., 497 F.Supp. 591, 593 (E.D.Pa.1980), and the authority to “mak[e] final decisions remains at all times with the district judge.” Mathews v. Weber, 423 U.S. 261, 270, 96 S.Ct. 549, 554, 46 L.Ed.2d 483 (1976). “The district judge is free to follow [the magistrate’s recommendation] or wholly to ignore it, or, if he is not satisfied, he may conduct the review in whole or in part anew. The authority — and the responsibility — to make an informed, final determination ... remains with the judge.” Id. at 271, 96 S.Ct. at 554. Absent an objection, “the Judge ultimately responsible may forthwith endorse acceptance of the proposed decision, but may afford the parties opportunity to object to any contemplated rejection or substantial modification of the proposed decision.” Rule 2, Local Rules for Magistrates (emphasis supplied). In this case, the recommended decision was issued on October 29, 1981. Respondent filed no objection to the decision, timely or otherwise. Counsel for respondent, Richard F. Jacobson, an experienced attorney familiar with the general questions of law raised in this case and familiar also with the particular facts of McCarthy’s prosecution, Findings ¶¶ 13, 17-48, was fully authorized to act as attorney for respondent, id. ¶¶ 30, 34-37, and was familiar with the law of habeas corpus, id. ¶¶ 13-24, and the procedures governing recommended decisions of United States magistrates. Id. ¶¶ 38-41. Jacobson concluded, after reviewing the recommended decision, that the petition for a writ of habeas corpus should be granted. Id. ¶32. After consulting with his immediate superior (the State’s Attorney for the Judicial District of Fair-field), id. ¶¶ 33-35, who agreed with his view of the case, id. ¶ 35, Jacobson decided not to file objections to the recommended decision and decided to consent to the entry of judgment for petitioner because that was “the proper course to follow.” Id. ¶¶32, 35, 40 — 41." He appeared at a hearing held in open court on January 13, 1982 and consented to the court’s adoption of the result of the magistrate’s decision. Findings ¶¶ 40-42, 48; Tr. Jan. 13, 1982 at 44-49. Accordingly, on January 18, 1982, the court entered judgment pursuant to the agreement and consent of the parties. It was not until January 26, 1982 — 89 days after Magistrate Eagan issued his recommended decision and 8 days after the entry of judgment for petitioner — that the Chief State’s Attorney questioned the magistrate’s view of the case, by serving a motion to alter or amend the judgment under Rule 59(e), Fed. R.Civ.P. The question presented, therefore, is whether a party who fails to file a timely objection to a recommended decision of a magistrate under applicable law may obtain a review of the court’s judgment, entered pursuant to the magistrate’s recommendation, by serving a Rule 59(e) motion after entry of the judgment. As a general rule, a party who fails to file a timely objection to all or part of a recommended decision waives its right to further review (including appellate review) of those parts of the recommended decision to which it fails to object. John B. Hull, Inc. v. Waterbury Petroleum Products, Inc., 588 F.2d 24, 29-30 (2d Cir.1978), cert. denied, 440 U.S. 960, 99 S.Ct. 1502, 59 L.Ed.2d 773 (1979) (waiver of review by district judge and Court of Appeals, interpreting 28 U.S.C. § 636(b)(1) and the specificity requirements of Rule 2, Local Rules for Magistrates). See also McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.1980), cert. denied, 450 U.S. 996, 101 S.Ct. 1700, 68 L.Ed.2d 197 (1981) (waiver of appellate review); Park Motor Mart, Inc. v. Ford Motor Co., supra, 616 F.2d at 605 (waiver of appellate review); Consorcio Constructor Impregilo v. Mack Trucks, Inc., supra, 497 F.Supp. at 594 (waiver of review by the district court); Webb v. Califano, 468 F.Supp. 825, 830-831 (E.D.Cal.1979) (waiver of review by the district court; “[h]aving failed to object within the time provided, the parties cannot mandate a de novo review; they may only suggest it.”) Those circuits which have deviated from this general rule of waiver have done so merely to hold that a party waives the right to appeal by failing to file a timely objection only in those cases “where it is evident” that the party has been informed of the requirement that it file a timely objection. See Nettles v. Wainwright, supra, 677 F.2d at 408, 410. See also United States v. Walters, 638 F.2d 947, 949-950 (6th Cir.1981) (same). However, even under the notice requirements imposed by the Fifth and Sixth Circuits in the exercise of their supervisory powers — requirements apparently not imposed by the Second Circuit — it is clear that respondent in this case knowingly waived his right to have the district court review the magistrate’s recommended decision; respondent’s experienced counsel elected not to object to the recommended decision, fully knowing the consequences of his election. Findings ¶¶32, 36-41. See also Tr. Feb. 4, 1982 at 114-115. No authority has been brought to the court’s attention to support the notion that a party who has consciously and deliberately elected not to file a timely objection to a magistrate’s recommended decision is permitted to circumvent this well-established principle of waiver by the filing of a timely Rule 59(e) motion, much less by the filing of an untimely and improperly filed Rule 59(e) motion. See note 9, supra. II. Even as the state’s resolve appears to have wavered with respect to the magistrate’s recommended decision, so has the state vacillated in its attitude toward this court’s judgment. As of January 19, 1982, that judgment reflected the consent and urging of both parties. A judgment entered with the consent of the parties has, of course, the same force and effect as any other judgment, Securities and Exchange Commission v. Thermodynamics, Inc., 319 F.Supp. 1380, 1382 (D.Colo.1970), aff’d, 464 F.2d 457 (10th Cir.1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 588 (1973); Nashville, C. & St. L. Ry. Co. v. United States, 113 U.S. 261, 266, 5 S.Ct. 460, 462, 28 L.Ed. 971 (1884). At the same time, a decree entered by consent of the parties is basically contractual in nature, United States v. ITT Continental Baking Co., 420 U.S. 223, 238, 95 S.Ct. 926, 935, 43 L.Ed.2d 148 (1975), and ordinarily may not be modified without consent of the parties, Columbia Artists Management, Inc. v. United States, 381 U.S. 348, 352, 85 S.Ct. 1553, 1555, 14 L.Ed.2d 679 (1965). See generally United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). Because of the interest in finality shared by both parties, by the court, and by society in general, the fact that one party’s consent was defective will not usually suffice to disrupt the decree, see Gilbert v. United States, 479 F.2d 1267 (2d Cir.1973) (per curiam). On January 26, 1982, the state launched what was then an obscure attack (later clarified somewhat, see note 9, supra) on the judgment that had been entered with its consent. Yet the state did not then give, and has not since given, any reason why this court should not apply to the case at bar the often-cited principle stated by Justice Cardozo a half-century ago: “Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned.” United States v. Swift & Co., supra, 286 U.S. at 119, 52 S.Ct. at 464. The court’s amended judgment of January 19, 1982 had put to rest a matter that had been pending for nearly two years, had generated a voluminous file and necessitated numerous hearings, and had finally been resolved with the agreement of all concerned. The state has never alleged that between January 19 and January 26, 1982, there arose “new and unforeseen conditions” of any variety, much less ones evocative of “grievous wrong.” Justice Cardozo’s words were, of course, written with reference to an antitrust consent decree in which important issues of public policy were at stake. The case at bar is not one in which vast sums of money ride on the judgment, nor one in which industrial reorganization will flow from the decision. Nevertheless, a petition for a writ of habeas corpus does involve the court in a quasi-criminal proceeding, and such matters have always been regarded as especially serious by our Constitution and legal system. Accordingly, the importance of finality in criminal matters has been reaffirmed by various doctrines. The constitutional guarantee that a defendant will not be exposed to double jeopardy is one aspect of that concern, see United States v. Wilson, 420 U.S. 332, 343, 95 S.Ct. 1013, 1021, 43 L.Ed.2d 232 (1975), while the recently strengthened view of a plea bargain as a contract capable of specific enforcement derives from the related principle that both prosecutor and defendant will act only after the greatest deliberation and with the recognition that their actions, once taken and recorded before the court, will not lightly be subject to retraction. See, e.g., Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971);, Siegel v. New York, 691 F.2d 620 (2d Cir.1982). The gravity of any criminal proceeding, let alone a prosecution for murder, makes considered determination by the prosecution, no less than by the court, an absolute necessity. It would undermine both the significance of the proceeding and the dignity of the state itself for this or any other court to be forced to assume that the state’s consent to judgment, once given, could casually be withdrawn. III. A. Perhaps recognizing that consent properly given cannot readily be withdrawn, respondent now in effect contends that it never consented to entry of the judgment in the first place. It argues that it could not have properly consented to judgment in this case because petitioner had not exhausted state remedies, and “that the absence of exhaustion cannot be waived or stipulated to, or conceded by the state.” Memorandum in Support of the State’s Motion to Open and Amend Judgment (filed Feb. 1,1982) at 9-10. See United States ex rel. Sostre v. Festa, 513 F.2d 1313, 1314 n. 1 (2d Cir.), cert. denied, 423 U.S. 841, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975). See also United States ex rel. Trantino v. Hatrack, 563 F.2d 86, 96 (3d Cir.1977), cert. denied, 435 U.S. 928, 98 S.Ct. 1499, 55 L.Ed.2d 524 (1978). Respondent now claims that the exhaustion requirement of 28 U.S.C. §§ 2254(b), (e), has not been satisfied because petitioner failed to present fully the factual basis of his claim before the state courts. Memorandum in Support of the State’s Motion to Open and Amend Judgment (filed Feb. 1, 1982) at 2. However, at the very onset of the federal habeas corpus case respondent had admitted petitioner’s claim that “[petitioner has exhausted all the remedies available in the courts of the State of Connecticut as to the claim brought herein.” See Petition for Writ of Habeas Corpus (filed Apr. 28, 1980) at ¶ 3; Return to Petition for Writ of Habeas Corpus (filed May 19, 1980) at ¶ 2. Moreover, Assistant State’s Attorney Jacobson later made an independent assessment of the exhaustion claim and concluded that petitioner had exhausted state remedies and that Magistrate Eagan properly had found that the exhaustion requirement was satisfied. Findings ¶¶ 31-32. It is undisputed on this record that Jacobson has a strong sense of duty and that he does not hesitate to raise the exhaustion claim in behalf of the state where there is merit to the claim. Findings ¶ 18. The circuits have split on the permissibility of a prosecutorial waiver of the exhaustion requirement. “Since the exhaustion requirement of 28 U.S.C. § 2254 ‘is not a jurisdictional concept but simply a flexible matter of comity,’ ” the Fourth Circuit has held that the federal courts may, in the interest of justice and expedition, accept waiver of exhaustion by the state. Jenkins v. Fitzberger, 440 F.2d 1188, 1189 (4th Cir. 1971) (per curiam) (citation omitted). Accord, Houston v. Estelle, 569 F.2d 372, 375-376 (5th Cir.1978) (same; state explicitly conceded that petitioner had exhausted state remedies). Where the state erroneously conceded in its district court pleadings that state remedies were exhausted, the Eighth Circuit refused to recognize a doctrine of inadvertent waiver of exhaustion, but noted that it had in the past recognized express waiver by the state. Davis v. Campbell, 608 F.2d 317, 320 n. 10 (8th Cir.1979) (per curiam). See also United States ex rel. Lockett v. Ill. Parole and Pardon Bd., 600 F,2d 116, 117 (7th Cir.1979) (per curiam) (“Since the exhaustion requirement is not jurisdictional ... an appeals court may in appropriate circumstances decline to dismiss despite the failure to exhaust, as where there has been a full hearing below and exhaustion would be ‘wasteful of judicial energy.’ ”); United States ex rel. Trantino v. Hatrack, supra, 563 F.2d at 95-97 (noting generally the divergence of the interests of state prosecutors and state courts, and acknowledging that “deviation from the exhaustion requirement can only be permitted ‘in those rare instances where justice so requires,’ ” but finding no “rare or extraordinary circumstance” which in that case would permit such deviation). Our own Court of Appeals approved prosecutorial waiver of the exhaustion requirement in Colon v. Fogg, 603 F.2d 403 (2d Cir.1979), ignoring dicta in an earlier case that had glancingly suggested that the statutory requirement of exhaustion of state remedies could not, on the facts of that particular case, be waived by the state. United States ex rel. Sostre v. Festa, supra, 513 F.2d at 1314 n. 1. See generally L. Yackle, Postconviction Remedies § 55 at 240 (1981) (“compliance with the doctrine [of exhaustion] may be conceded or even waived by the state concerned”). In Colon, supra, 603 F.2d at 406-407, the state consented to the amendment of the habeas petition to add a claim of ineffective assistance of counsel, and failed to raise the exhaustion issue until after an evidentiary hearing, some fourteen months after the amendment of the petition. The court found the state’s newly raised exhaustion claim “close to frivolous.” Id. at 406. “Close to frivolous” is a phrase that springs to mind when faced with the state’s contention that at this late stage — where a judgment has been fully executed following its entry by consent and where no new or unforeseen circumstances are alleged to have arisen in the brief period between entry of judgment and the filing of the motion to alter or amend the judgment— the court should reconsider its exhaustion claims. B. The authority of state prosecutors to waive the exhaustion requirement must be considered in light of the unusual relationship of the Chief State’s Attorney’s Office to the Connecticut Judicial Department. See generally J. Jacoby, The American Prosecutor: A Search for Identity 19-28 (1980). Connecticut is one of the few states that retain the early American constitutional structure in which prosecutors are appointed by judges (rather than popularly elected or appointed by the executive) and in which their office is created in the judicial rather than the executive article of the state constitution. Id. Although the American prosecutor is now generally considered an executive officer, in the early republic the prosecutor was “clearly defined as a judicial figure .... As a subsidiary of the courts, he was considered merely an adjunct to the real powers of the courts, the judges.” Id. at 23-24 (emphasis supplied). The early American arrangement of placing state prosecutors in the judicial branch of government survives in Connecticut to this day; the Division of Criminal Justice is an integral part of the Judicial Department of the State of Connecticut and state prosecutors are all appointed by judges and removable only by judges. See Findings ¶¶ 1-8; C.G.S. §§ 51-lb, 51-275 to 51-280, 51-285. See also C.G.S. § 51-279 (submission of “estimates of appropriations” by Chief State’s Attorney to the Chief Court Administrator). The reluctance of some federal courts to find that prosecutors have waived the defense that a petitioner has failed to exhaust his state remedies is founded on principles of comity; the exhaustion requirement is said to “minimize friction between our federal and state systems of justice by allowing the State an initial opportunity to .pass upon and correct alleged violations of prisoners’ federal rights.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 1203, 71 L.Ed.2d 379 (1982), quoting Duckworth v. Serrano, 454 U.S. 1, 2, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam); see also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). These principles accord due “deference and consideration ... to the co-equal judicial systems of the various states,” United States ex rel. Trantino v. Hatrack, supra, 563 F.2d at 96, and “serve[] an interest not of state prosecutors but of state courts.” Id. Where state prosecutors are wholly independent of the state courts it cannot be presumed that they have adequate incentives fully or vigorously to represent the interests of the state courts. In Connecticut, however, the Division of Criminal Justice is “within” and part of the Judicial Department of the State of Connecticut. Findings ¶ 1; C.G.S. §§ 51-275, 51-276. The Chief State’s Attorney (the head of the Division of Criminal Justice) is an employee of the Judicial Department, the head of which is the Chief Justice of the Supreme Court of Connecticut. Findings ¶ 3; .C.G.S. §§ 51-lb, 51-275, 51-278, 51-279. The Chief Justice of the Supreme Court appoints the Chief State’s Attorney, Findings ¶ 4; C.G.S. §§ 51-lb, 51-278(a), and the various state’s attorneys are appointed and removable by the judges of the Superior Court. Findings ¶¶4, 8; C.G.S. §§ 51-278(b), 51-278(g), 51-285. The Connecticut system is not one in which the state’s attorneys have little or no incentive to protect the interests of the state judiciary in federal habeas corpus proceedings. The Division of Criminal Justice represents the state of Connecticut in all federal habeas corpus proceedings in which state prisoners seek to challenge the constitutionality of their convictions in state courts, Findings ¶¶ 15-16; C.G.S. § 51-277. The Division is required by statute to “participate on behalf of the state in all appellate, post-trial and post-conviction proceedings arising out of the initiation of any criminal action[,] whether or not such proceedings are denominated civil or criminal for other purposes.” Id. See generally, Findings ¶¶ 1-16. The duties of state prosecutors under Connecticut law, which include the representation of the state in post-conviction proceedings, have been held to be “entirely consistent with judicial power as prescribed by [Connecticut’s] constitution.” State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973) (emphasis supplied). Indeed, the appointment of state’s attorneys by the judicial branch of Connecticut’s government was upheld against a constitutional attack based, in part, on the principle of separation of governmental powers. Id. See C.G.S. Const. Art. 2. The Connecticut Supreme Court held that such appointments were consistent with the duties and powers of the judicial department, as distinguished from those of the executive department: The functions of a state’s attorney are not purely those of an executive officer. As a representative of the people of the state, he is under a duty not solely to obtain convictions but, more importantly, (1) to determine that there is reasonable ground to proceed with a criminal charge ... (2) to see that impartial justice is done the guilty as well as the innocent; and (3) to ensure that all evidence tending to aid in the ascertaining of the truth be laid before the court, whether it be consistent with the contention of the prosecution that the accused is guilty The state’s attorney, thus, is an officer charged with important duties and responsibilities in the administration of justice. Such duties of a state’s attorney are entirely consistent with judicial power as prescribed by our constitution. State v. Moynahan, supra, 164 Conn, at 568, 325 A.2d 199 (citations omitted) (emphasis supplied). In rejecting the constitutional attack on the system of appointment of prosecutors by judges, Connecticut’s highest court pointed with pride to the enshrinement of this unusual system in 270 years of history. Id. at 570, 325 A.2d 199. In these circumstances, it was neither surprising nor improper for the Chief Court Administrator of Connecticut to have consulted with the Chief State’s Attorney regarding the writ of habeas corpus sought and obtained by McCarthy in the federal court, Findings ¶¶ 50-55; nor was it surprising or improper that the Chief State’s Attorney personally took an interest in the case (however belated) following a conversation with the Chief Court Administrator. Id. It is not only clear that the state’s prosecutors are part of the Judicial Department of the state government, but also, that in the circumstances presented by this particular post-conviction proceeding, the state’s attorneys were mindful of the interests of the Judicial Department of which they form .a part. See, e.g., Findings ¶46. Assistant State’s Attorney Jacobson, in consenting to judgment for petitioner, believed he was protecting the Judicial Department for what he regarded as a more onerous outcome to this litigation. Id. See Recommended Decision at 1300. (Magistrate Eagan “decline[d] for the moment to adopt a rule or plan under which the State must bring a defendant to trial within a specific time frame. Rather, we note to the State our concern for this situation and choose to allow the State to adopt its own remedies rather than constricting its administrative and judicial process with artificial restraints.”). By consenting to the judgment entered on January 18,1982, Jacobson sought to limit the impact of the case, assuring that the decision would be, in his words, “writ[ten] with a fine brush, rather than a broad stroke,” Tr. May 5, 1982 at 76. Questions regarding Connecticut’s historic and vaunted system of placing prosecutors within the judicial department of the state government need not be considered at this time. It is sufficient to note that under the Connecticut system state’s attorneys may and do represent the interests of the state courts in post-conviction proceedings; that in this case, those interests were represented; and, that, in the representation of those interests, the state’s attorneys, after due consideration of the case, concluded (1) that state judicial remedies had been exhausted, and (2) that a judgment should enter for McCarthy because of the state’s conceded violation of McCarthy’s constitutional right to a speedy trial. If there is any state in which it can be said that prosecutors adequately represent the interests of the state courts in habeas corpus proceedings before a federal court it is surely Connecticut. C. Because of the state’s waiver of the exhaustion issue and the various procedural defects in its attempt to raise the issue belatedly, it is not necessary for the court to reach the question of whether petitioner in fact satisfied the exhaustion requirement before coming to federal court. In any event, it is well to recall that the exhaustion doctrine is a doctrine of comity. It is not a license for the state to disregard the rules of procedure applicable to all litigants. Nor is it an injunction that a federal court work overtime to excavate and refine arguments ignored or east aside by the state. Conclusion For the reasons stated above, the motion to alter or amend judgment is denied. FINDINGS OF FACT AND RECOMMENDED DECISION F. OWEN EAGAN, United States Magistrate: Petitioner seeks a federal writ of habeas corpus on the asserted ground that he had been denied his constitutional right to a speedy trial in violation of the Sixth and Fourteenth Amendments of the Constitution of the United States. For reasons hereinafter stated, the court finds that petitioner was denied his right to a speedy trial. Accordingly, the writ of habeas corpus shall be granted. BACKGROUND The petitioner, Robert J. McCarthy, was arrested by the Norwalk, Connecticut police on April 5, 1975 in connection with the shooting of two persons. Subsequently, petitioner was charged with attempted murder in violation of sections 53a-49 (criminal attempt) and 53a-54a (murder) of the Connecticut General Statutes, and murder in violation of sections 53a-54a (murder) and 53a-8 (criminal liability for acts of another) of the Connecticut General Statutes. Petitioner pled not guilty to both charges and elected to be tried by jury. Petitioner’s cases were initially set down for a trial date of July 10, 1975, but at the request of the State were continued until November 3, 1976. Petitioner’s trial commenced on November 3, 1976. On November 16, 1976 a mistrial was declared by the court. Petitioner’s second trial commenced on January 11, 1977 and on February 2, 1977 petitioner was found guilty of both charges brought by the State. He was sentenced to serve concurrent periods of confinement of 10 to 20 years and 25 years to life in the Connecticut Correctional Institution at Somers. The evidence presented by the State at petitioner’s trial was based upon the contention that petitioner, though not physically present at the scene of the crime, aided and abetted Jean Siretz in the shooting of Donald and Victoria Stuart. The State’s principal witness, Jean Siretz, had earlier pled guilty to the actual shooting of the victims and had been sentenced to 7Vz to 15 years in prison. The Connecticut Supreme Court affirmed the actions of the trial court and denied petitioner’s appeal. State v. McCarthy, 179 Conn. 1, 425 A.2d 924 (1979). On September 18, 1979, the Connecticut Supreme Court denied petitioner’s motion to reargue. FINDINGS OF FACT During the course of three days of evidentiary hearings, this court heard detailed testimony concerning petitioner’s claim that he was denied the right to a speedy trial as guaranteed by the Sixth Amendment of the Constitution of the United States. Witnesses included the special public defender appointed to represent petitioner, the attorney retained by petitioner to replace the public defender, the state’s attorney who prosecuted the case against petitioner, an acquaintance of petitioner, and petitioner himself. Numerous exhibits were entered into evidence including but not limited to letters written during pretrial incarceration by petitioner to his attorney, a letter from the State’s principal witness, Jean Siretz, petitioner’s accomplice in the crimes, and three statements made by Jean Siretz to the Norwalk, Connecticut Police. Additionally, the Report of the Chief Courts Administrator, State of Connecticut for the years 1969/1970 and two Reports of the Judicial Department, State of Connecticut for the years 1976 and 1978 were entered into evidence. Finally, petitioner’s trial transcripts were made a part of the record. Proposed findings of fact have been offered by both parties and based upon these, its own observations, and its evaluation of the testimony and exhibits offered at the evidentiary hearing, the court makes the following findings of fact. I. LENGTH OF DELAY 1. Petitioner was arrested by the Nor-walk, Connecticut police on April 5, 1975 and charged in connection with the shootings of Donald and Victoria Stuart. 2. On April 22, 1975 an information was filed by Donald A. Browne, State’s Attorney for Fairfield County, State of Connecticut, charging that petitioner “did intentionally aid one JEAN SIRETZ, while the latter, with intent to cause the death of the said DONALD STUART, did shoot and attempt to cause the death of the said DONALD STUART, in violation of Section 53a-54a and Section 53a-49 of the Connecticut General Statutes.” 3. On June 9, 1975 a true bill of indictment was returned by a Fairfield County Grand Jury charging that petitioner “did intentionally aid one JEAN SIRETZ, while the latter, with intent to cause the death of one VICTORIA STUART, did shoot and cause the death of the said VICTORIA STUART, in violation of Section 53a-54a and Section 53a-8 of the Connecticut General Statutes.” 4. Petitioner pled not guilty to both charges and elected to be tried by a jury of twelve. 5. Petitioner’s initial trial commenced on November 3, 1976, eighteen months and twenty-eight days after his arrest. 6. Petitioner’s initial trial ended in a mistrial on November 16, 1976 when Jean Siretz, a prosecution witness, introduced testimony that the court deemed highly prejudicial to petitioner. 7. Petitioner was again brought to trial on January 11, 1977, twenty-one months and six days after his arrest. 8. On February 2, 1977 petitioner was found guilty of both charges and on March 18, 1977 was sentenced to concurrent sentences of 10 to 20 years and 25 years to life in prison. II. PETITIONER’S ASSERTION OF HIS RIGHT TO A SPEEDY TRIAL 9. On August 28, 1975 petitioner, by his counsel, Special Public Defender, Joseph M. Brophy, filed a Motion for Speedy Trial in the Connecticut Superior Court in which petitioner requested that his case “be set down immediately for trial.” Said motion was opposed by the State and denied by the court on September 16, 1975. 10. On December 19, 1975 petitioner filed a Motion to Dismiss in the Connecticut Superior Court on the ground that the State had failed to afford him a speedy trial in violation of the Sixth Amendment to the Constitution of the United States. Said motion was opposed by the State and denied by the court on January 21, 1976. 11. On June 16, 1976 petitioner filed a second Motion to Dismiss for want of a speedy trial in the Connecticut Superior Court. Said motion was opposed by the State and denied by the court on July 20, 1976. 12. On September 15, 1976 petitioner, represented by new counsel, Attorney Warren A. Luedecker of the law firm of Friedman & Friedman, filed a third Motion to Dismiss in the Connecticut Superior Court on the ground that the State had failed to afford him a speedy trial in violation of the Constitution of the United States and the Constitution of the State of Connecticut. Said motion was opposed by the State and denied by the court on September 30, 1976. 13. On November 3, 1976, prior to the start of his initial trial, petitioner orally renewed his third Motion to Dismiss in the Connecticut Superior Court. Said motion was opposed by the State and denied by the court on that date. 14. On November 16, 1976 after petitioner’s initial trial had ended in a mistrial, petitioner made an oral motion for an immediate trial in the Connecticut Superior Court. Despite this motion, petitioner’s second trial was delayed for almost two months, until January 11, 1977. 15. On January 11, 1977, prior to the start of his second trial, petitioner again orally renewed his third Motion to Dismiss for want of a speedy trial in the Connecticut Superior Court. Said motion was opposed by the State and thereafter denied by the court. 16. Fourteen months and six days elapsed between the time petitioner first asserted his right to a speedy trial and the start of his initial trial. 17. Sixteen months and fourteen days elapsed between petitioner’s initial assertion of his right to a speedy trial and the start of his second trial. III. REASONS FOR THE DELAY 18. Neither petitioner nor his counsel made any requests for continuances during the entire length of the delay between petitioner’s arrest and subsequent trials. 19. No portion of the delay between petitioner’s arrest and subsequent trials was caused by petitioner’s actions in retaining the law firm of Friedman & Friedman as his counsel in place of Special Public Defender Joseph M. Brophy in July, 1976. 20. Petitioner made efforts to ensure that this change in counsel would not contribute to the delay in his case. Before Friedman & Friedman took over his defense, petitioner discussed his case thoroughly with Gerry Spiegel of that firm and he provided Attorney Spiegel with copies of all materials that he had concerning his case. 21. Petitioner paid Friedman & Friedman a retainer with money he inherited from his grandfather’s estate and Friedman & Friedman undertook their representation of petitioner with a clear understanding that petitioner wanted an immediate and speedy trial. Petitioner’s retained counsel promised petitioner that they would not delay his trial in any manner. 22. The State offered the following reasons to support its argument that the case against petitioner was factually complex: difficulty in obtaining corroborative evidence; problems with conflicting evidence; problems with inconsistent lab reports; problems with a large number of witnesses whose credibility was at issue; and uncertainty as to whether petitioner’s accomplice, Jean Siretz, would testify against petitioner. 23. All seventeen of the witnesses called by the State in the presentation of its case against petitioner were known and available to the State within days after petitioner was arrested and incarcerated on April 5, 1975. 24. Donald Stuart, a victim, was released from Norwalk Hospital one month after he was injured. He did not require further hospitalization nor was he ever placed under the care of a psychiatrist. 25. All statements of State’s witnesses turned over by the State to the defense pursuant to then Section 2163 of the Connecticut Practice Book were in the possession of the State on or prior to April 8, 1975 — three days after petitioner’s arrest. Not one of the seventeen witnesses called by the State in the presentation of its case against petitioner gave any statements after April 8, 1975 which related to the subject matter of his testimony at petitioner’s trial. 26. Twenty-six of the twenty-seven exhibits presented by the State at petitioner’s trial were known and available to the State within a few weeks after petitioner was arrested and incarcerated on April 5, 1975. 27. Assistant State’s Attorney Dominick Galluzzo, prosecutor of both petitioner’s and Jean Siretz’ case, made a tactical decision in the summer of 1975 to try Jean Siretz’ case first because it was the stronger of the two. 28. The State, in its prosecution of petitioner, was presented with a number of legal questions concerning the interpretation of Connecticut General Statutes, sections 53a-8 through 53a-13, on aiding and abetting. 29. The legal issues contributed to the tactical decision by the State to proceed with the case against Jean Siretz before proceeding against petitioner. 30. There is no evidence that the State conducted lengthy plea negotiations with Jean Siretz or her counsel. 31. The sentence recommended by the State in Jean Siretz’ case — lxh to 15 years— and her receiving that sentence was not in any way related to her giving testimony at petitioner’s trial. 32. Assistant State’s Attorney Dominick Galluzzo did not talk to Jean Siretz until after she had pled guilty to reduced charges in September, 1976 and at the time he first talked with her, it was neither understood nor assumed that Jean Siretz would testify against petitioner in connection with his case. 33. The State was prepared to proceed to trial against petitioner regardless of whether or not Jean Siretz had testified. 34. The case against petitioner would not have been as strong had Jean Siretz not testified. 35. After Jean Siretz pled guilty to reduced charges in September, 1976 the State made a tactical decision to delay petitioner’s trial to ensure that Jean Siretz would be sentenced by its outset. Said decision resulted in a delay of almost two months. 36. The State’s rationale for delaying petitioner’s trial until after Jean Siretz was sentenced was not to obtain the testimony of Jean Siretz, but rather to make her appear more credible in the eyes of the jury. 37. During the period of the delay in petitioner’s case and Jean Siretz’ case, the office of State’s Attorney for Fairfield County followed a general practice of scheduling murder cases in chronological order. According to statements made by State’s Attorney Donald Browne in open court before Superior Court Judge George Saden, the State implemented a policy whereby it drew up a list of murder cases pending in inverse order of time and it tried the oldest case first. 38. In preparing petitioner’s case and in determining when to schedule his case, the State gave little or no consideration to the fact that petitioner had repeatedly asserted his right to a speedy trial. Whether or not a speedy trial motion was pending made no difference and was immaterial to the State’s preparation and scheduling of cases. 39. Court backlogs and congested dockets contributed substantially to the delay in both petitioner’s case and Jean Siretz’ case. 40. Court backlogs and congested dockets had long existed in the courts of Fair-field County and in courts throughout the State of Connecticut prior to the pendency of petitioner’s case. 41. Court backlogs and congested dockets became progressively worse during the decade immediately preceding petitioner’s arrest and subsequent trials. 42. On July 1, 1966, the Superior Court of Connecticut began the fiscal year with 430 cases pending. By July 1, 1970 that figure had increased to 1,939 cases, of which 75% were awaiting disposition in Fairfield, Hartford and New Haven counties. By July 1, 1976 that figure had increased to 3,848 and by July 1, 1978 it had reached 3,862. 43. From July 1,1966 to July 1,1978 the number of cases pending in the Superior Court at the beginning of the fiscal year increased from 430 to 3,862, an increase of almost 800%. 44. During this period in which court backlogs and congested dockets were becoming progressively worse, the percentage of funds allocated to the State judicial system was steadily reduced. 45. During the 1964-1966 biennium, the State appropriated 3% of its general fund to the Judicial Department. By 1974-1975, the percentage of the general fund allocated to the Judicial Department had declined to 2.04% and by 1976-1977 it had declined even further to 1.8%. During 1977-1978 this percentage remained at 1.8%. 46. For a long period of time prior to petitioner’s arrest and subsequent trials, State officials had been warned and were aware of the serious nature of the problems in the State courts. The State courts were cognizant of the need for additional personnel and expanded court facilities in order to keep up with the expected substantial increases in the number of civil and criminal cases filed in the 1970’s. 47. The Connecticut State judicial system was inadequately staffed and seriously underfinanced at the time of petitioner’s arrest and subsequent trials. IV. PREJUDICE TO THE DEFENDANT 48. Petitioner was incarcerated on April 5, 1975 and remained incarcerated continuously during the entire length of the delay between his arrest and subsequent trials because he was unable to raise enough money to post the bond set in his case. 49. On April 7, 1975 petitioner was placed in the Bridgeport Correctional Institution — the new jail on North Avenue— where he remained incarcerated continuously until March 18, 1977, the date he was sentenced in connection with these charges. 50. At the time of his arrest, petitioner was employed refurbishing yachts. The period of incarceration disrupted petitioner’s employment as he was not again employed until he was transferred to the Connecticut Correctional Institution at Somers after he was sentenced. 51. Throughout the period of his pretrial incarceration at the North Avenue jail, petitioner was not provided a job or allowed to work because the bond set in his case was greater than $10,000. 52. During the time between petitioner’s arrest and subsequent trials, he had no regular source of income other than gifts he received from his aunt and he was unable to meet all of his financial obligations. 53. Petitioner incurred and exhibited a great deal of anxiety throughout the period of his pretrial incarceration. 54. Dr. Joel Albert, psychiatrist at the Bridgeport jail prescribed various medications to relieve petitioner’s anxiety. Pri- or to his incarceration, petitioner never had a prescription to ease anxiety. 55. Petitioner had very limited access to a telephone, and therefore was unable to contact witnesses on his own behalf. Rather, he had to rely almost totally on the efforts of his attorneys in contacting witnesses and preparing his defense. 56. The only telephone available to petitioner in the Bridgeport jail was the telephone located inside his counselor’s office. In order to make a telephone call, petitioner had to file a written request identifying the person he wanted to call and what he wanted to say. Thereafter, if the request was granted, the counselor would usually make the call and then give petitioner a slip telling him what the person said in response to his message. Petitioner was generally not allowed to make any calls on his own. 57. Petitioner made numerous complaints to his attorneys and to prison officials about his limited access to a telephone. 58. State officials failed to turn over exculpatory statements of Jean Siretz to petitioner or his counsel despite the fact that on April 24,1975 petitioner had filed a Motion for Discovery requesting in paragraph one, “Any and all exculpatory information or material in the possession, control and custody of the state.” 59. Assistant State’s Attorney Richard Jacobson filed a disclosure to petitioner’s Motion for Discovery on June 11, 1975 which stated in paragraph one that, “The State’s file contains no exculpatory information or material.” At the time he made this statement, the State was in possession of conflicting statements made by Jean Siretz. Two of the three written statements and one oral statement of Jean Siretz in the possession of the State exculpated petitioner of any involvement in the crimes with which he was charged. 60. The State never turned over the statements of Jean Siretz and petitioner did not learn of the exculpatory information contained in said statements until sometime after Friedman & Friedman assumed his defense in July, 1976 when Warren Luedecker, petitioner’s attorney, discovered this information through his own investigative efforts. 61. Peter Schaffer and Rick Seraphin were included on the list of witnesses that petitioner supplied to Special Public Defender Joseph Brophy in June, 1975. 62. Petitioner continually stressed the importance of Peter Schaffer and Rick Seraphin as witnesses on his behalf, and petitioner continually expressed his concern to his attorneys about contacting them and having Schaffer and Seraphin available as witnesses at his trial. 63. Peter Schaffer and Rick Seraphin left the State of Connecticut during the delay between petitioner’s arrest and subsequent trial and both were outside of the State at the time of petitioner’s trials in November, 1976 and January, 1977. 64. Rick Seraphin joined the Navy and left the State of Connecticut in October, 1975. At the time of petitioner’s trials in November, 1976, and January, 1977 Seraphin was stationed in Hawaii. 65. Peter Schaffer left the State of Connecticut on approximately September 15, 1975 and relocated in Denver, C