Howard Floyd Tucker v. Charles L. Wolff, Jr., Warden, Nevada State Prison

In a Nevada state trial, Tucker was convicted of burglary and his conviction was affirmed on appeal. Tucker v. State, 92 Nev. 486 , 553 P.2d 951 (1976). In the district court, Tucker petitioned for a writ of habeas corpus. A magistrate recommended against granting the writ. The district court adopted the magistrate’s recommendation, and, without an evidentiary hearing, denied relief. Tucker appeals. Because two issues require further consideration by the district court, we vacate its judgment and remand the case.

I. SPEEDY TRIAL

Tucker was arrested in a business establishment in Carson City, Nevada, in the early hours of August 11, 1974. He has been in custody continuously since that time. After a preliminary hearing, he was arraigned on September 9, 1974, and pleaded not guilty. The court set his trial for May 20, 1975. Disregarding the month between arrest and arraignment, Tucker was in custody for nearly nine months awaiting trial.

The state asserts that the cause of the delay was the trial court’s congested docket. Tucker claims that, regardless of cause, the delay constituted a per se denial of his Sixth Amendment right to a speedy trial. This circuit has not adopted a per…