dissenting.
I regret that I cannot join the two learned and experienced appellate judges on this panel because, in my judgment, their reasoning is seriously flawed in numerous respects and the result is extremely unfair. Their analysis misapplies the substantive principles clearly stated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1971) and Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973). Furthermore, in their factfinding the majority ignores the procedural requirements of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and miscon: strues the unambiguous language of 28 U.S.C. § 2254(d). Even beyond these problems, I am dismayed that these judges have failed to address the crucial legal question raised by the petitioner: How can one demonstrate a complete loss of memory for purposes of showing actual prejudice in a speedy trial context? The resolution of this issue is avoided through reliance on an illogical syllogism: A man claims an inability to defend himself against a criminal charge because the passage of time has eradicated his memory of his whereabouts at the time of the crime; the jury finds him guilty; therefore, the man is lying. I cannot accept such reasoning and I cannot accept the result in this case.
Petitioner, John Terry, was arrested on November 14, 1977 and charged with robbing the Clark gas station at the corner of 26th Street and Broadway in Gary, Indiana, on March 5, 1975. The arrest warrant had been outstanding for thirty-two months. The only explanation for the delay is that Terry’s address on the arrest warrant was stated to be 1968 instead of 1978 Roosevelt Place, Gary, Indiana.1 The state court noted that there was no evidence that Terry ever left Gary during that period, used an alias, or tried to avoid discovery in any way, Terry v. State, 400 N.E.2d 1158, 1160 (Ind. App.1980). He lived at 1978 Roosevelt Place from 1971 to 1976 when he moved to another address in Gary. He was employed during the entire thirty-two months in the municipal area and, in fact, was an employee of the City of Gary for two years during that period.
Prior to trial, Terry filed a Motion to Dismiss on the basis of the violation of his right to speedy trial. That motion was denied. The transcript of that hearing, if one was made, is not a part of the state court record and thus we do not know if any findings of fact were made.
Terry’s case came to trial on August 14, 1978. The state’s case was not strong. Only two witnesses testified: Arthur Baker, the gas station attendant-victim; and Joe Starks, the investigating officer. Baker testified that he was the only employee working that night at the Clark station but that a friend, Melvin Dungan, was there keeping him company. Two men spoke to Dungan about losing money in the soda machine and Dungan sent Baker to help them. When Baker started to open the soda machine the men pulled guns, took him in the alley, and robbed him. The next day Baker picked out Terry’s picture from a book of mug shots. The alleged accomplice was never identified or located. Dungan, although an eyewitness, never identified anyone, nor did he make any statement to the police. He also did not testify at trial.2 *1223No guns, clothes, fingerprints or other tangible evidence linking Terry to the crime were ever offered into evidence.
Thus, the crucial evidence was Baker’s identification of Terry. However, even that testimony had significant weaknesses. At a pretrial deposition, Baker testified that he was able to identify Terry because he had gone to high school with him approximately twenty years earlier at Roosevelt High School in Gary. However, the defense obtained documentary evidence proving that Terry had gone to Booker T. Washington High School in Jonesboro, Arkansas and had never gone to Roosevelt. In discovery, the defense revealed this evidence to the prosecutor who then informed Baker of this flaw in his testimony. At trial, Baker testified that he knew Terry from seeing him on the streets and in a local pool hall. While admitting that he had originally thought he had gone to school with Terry, he claimed that after giving it more thought he decided that he had been mistaken. Baker repeatedly denied on cross-examination that the state’s attorney, or anyone else, had told him before trial that there was any evidence that Terry did not go to Roosevelt High School. However, after a recess in the trial, the prosecutor put Baker back on the stand. Baker then admitted that he had been told earlier of the contradictory evidence and that he had lied when he denied it because he was afraid if he told the truth it would hurt the state’s case.
Detective Starks then took the stand and testified to his investigation of the crime, which consisted of taking a statement from Baker and having him look at mug shots. He also testified that Terry used to hang around Starks’ barber shop on West 25th Street (about two blocks from the Clark station) in the late 1960’s and early 1970’s. After Starks’ testimony, the state rested.
The defendant took the stand3 and testified that he had gone to Booker T. Washington High School in Jonesboro, Arkansas and this was corroborated by documentary evidence. He also stated that he had lived near 25th Street in the late 1960’s and early 1970’s and had his hair cut regularly by Joe Starks. He testified that he had gone to the Clark station for gas a few times when he lived in the neighborhood,4 but did not recall ever seeing Baker. He specifically denied committing the crime alleged and testified regarding his memory loss.
Q. Now, you’ve heard the testimony that’s been given here today by the complaining witness. Calling your attention to March 5,1975, do you recall where you were at that time?
A. No.
Q. You have no idea where you were?
A. No.
Q. Were you at the Clark Service Station?
A. No, sir. R. 246.
******
Q. [T]hink carefully. Can you recall where you were on March 5, 1975?
A. No, sir.
Q. You have no idea where you were at that time?
A. No, sir, it’s been so long ago. R. 261.
The state obtained no significant admissions or contradictions on cross-examination.
Based on this evidence, the jury found Terry guilty of robbery. At sentencing, the trial judge stated that he was surprised by the verdict but he refused to set it aside. Terry was sentenced to 10-25 years incarceration.
*1224A divided Indiana Court of Appeals affirmed the conviction. Terry v. State, supra. In addressing Terry’s speedy trial claim, the court analyzed the four factors stated in Barker, supra. It found that the delay between the filing of the charge and the arrest was presumptively prejudicial and that the record was “susceptible to the inference that the state was negligent.” 400 N.E.2d at 1160. The court also noted that “Terry suffers no adverse inference from his failure to assert his [speedy trial] rights since he was unaware of the pendency of the charge,” Id On the issue of prejudice, the majority focused on the alleged impairment to Terry’s defense caused by the delay:
Terry makes no showing of any actual impairment. There are no factual contentions that witnesses died or were unavailable or were unable to remember. 400 N.E.2d at 1161.
Based on their determination that Terry had shown no prejudice, the majority concluded that he had not been denied his right to a speedy trial.
The weakness in the majority’s reasoning was clearly demonstrated in Judge Staton’s dissent:
The resulting prejudice to him is clear. The majority’s conclusion that Terry must show actual prejudice is reminiscent of the proverbial “dog-chasing-its-tail”. If Terry had been able to reconstruct the events in his life on the date of the robbery, he might have been able to structure some type of defense. As it was, this was impossible.
* * * * *
In practical terms, could we reconstruct our activities on a day which occurred over two and one-half years ago? I doubt it. 400 N.E.2d at 1164.
Having obtained no relief in the state courts,5 Terry filed a Petition for Writ of Habeas Corpus in the United States District Court for the Northern District of Indiana. His petition was denied. In its memorandum opinion, the court essentially tracked the reasoning of the state appellate court as to the first three factors stated in Barker.
On the final issue of prejudice it also analyzed the alleged impairment to Terry's defense:
However, what defense which might have been raised is left to speculation, [sic] Petitioner has not shown a sufficient causal relationship between the delay and any actual prejudice. Such a claim is the ideal defense fabrication. The Court is unwilling to say that the petitioner has been significantly prejudiced by a memory loss which is so complete as to be only conjecture. Memo p. 7.
This reasoning has no merit, and I believe that it is significant that the majority herein does not adopt it. Terry’s attempted defense is obvious from the record. He tried to demonstrate to the jury that he was somewhere else on the night of March 5, 1975. This is commonly known as an alibi defense. The causal connection between the delay and the impairment to the defense is also obvious. Due to the passage of time, he could not recall where he was that night and thus could not produce any corroborating witnesses or evidence. Furthermore, such a claim is not the ideal defense fabrication since loss of memory in itself is neither a denial nor a defense to a charge of robbery. If the petitioner had really intended to present a fabricated defense, he would have concocted a specific alibi and obtained someone to corroborate it.
On this appeal, the majority has- denied the petition on a new rationale not proposed by any of the prior courts. They conclude that Terry was lying when he testified at trial regarding his lack of memory:
Terry’s argument fails, in part, because it depends upon the truthfulness of his trial testimony. The jury heard all the incriminating evidence as well as Terry’s testimony. The jury had the opportunity to observe Terry’s demeanor on the witness stand and to judge his credibility. The jury did not believe him. By returning a verdict of guilty, we may assume that the jury found that Terry did recall his whereabouts and activities on *1225the night of March 5, 1975, and that his loss of memory was merely a convenient alibi.6
I detect a lack of logic in this reasoning. It is an elemental principle of jurisprudence that the preclusive effect of a general guilty verdict extends only to those facts necessary to support the elements of the crime charged. Loss of memory is neither a denial nor a defense to any element of the crime of robbery. Therefore, the jury’s verdict of guilty is not a proper predicate for a finding by this court that Terry lied when he testified to his loss of memory.
More importantly, the court cannot logically rely on the jury verdict to reject Terry’s constitutional argument. In Barker, the court stated:
[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system. 407 U.S. at 532, 92 S.Ct. at 2193.
Terry has argued that he was unable to present an adequate defense because of the delay caused by the state’s negligence in executing the warrant. The majority is now saying, in essence, the jury found you guilty and therefore we do not need to reach the issue of whether you had a fair trial.
The majority attempts to buttress its reliance on the jury’s verdict by suggesting that 28 U.S.C. § 2254(d) creates a presumption that the jury’s alleged finding on Terry’s memory loss is correct.7 However, by its own terms § 2254(d) applies to state court findings “evidenced by a written finding, written opinion, or other reliable and adequate written indicia.” Neither of the state courts to address this case made such a finding or even suggested that such an inference was permissible. A general verdict of guilty cannot be elevated to this level with regard to a factual finding unrelated to the guilt of the accused.
There cannot even be the semblance of a full and fair hearing unless the state court actually reached and decided the issues of fact tendered by the defendant, Townsend v. Sain, 372 U.S. 293, 313-314, 83 S.Ct. 745, 757-758, 9 L.Ed.2d 770 (1963).
Even assuming that § 2254(d) applied in this situation, Terry’s speedy trial argument clearly states a claim within the meaning of the exception provided in 28 U.S.C. § 2254(d)(6):
... that the applicant did not receive a full, fair and adequate hearing in the State court proceeding.
Therefore, Terry’s constitutional claim cannot be avoided even under that rationale.
The majority also contends that Terry’s claim must fail because he had not satisfied his burden of demonstrating actual prejudice. First, they attack petitioner’s reliance on Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973) for the proposition that an affirmative showing of prejudice is not necessary to prove a denial of the right to speedy trial. The majority states in footnote 3:
[W]e read Moore as proscribing the use of the prejudice factor as the “triggering mechanism” for consideration of the other three factors.
How they read it that way is a mystery to me. In Moore, the Arizona Supreme Court had rejected Moore’s speedy trial claim stating:
Therefore since Dickey [Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970) ] and Barker require a showing of prejudice in order to reverse, we cannot say that defendant was prejudiced *1226and his claim of lack of speedy trial is not tenable. State v. Moore, [109 Ariz. 111] 506 P.2d 242, 245 (Ariz.1973).
The United States Supreme Court vacated the judgment and remanded, stating:
The state court was in fundamental error in its reading of Barker v. Wingo and in the standard applied in judging petitioner’s speedy trial claim. Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial. [Emphasis supplied] 414 U.S. at 26, 94 S.Ct. at 189.
This language is unambiguous and requires no interpretation. Nowhere in Moore was the term “triggering mechanism” used or discussed. Furthermore, the Court in Moore relied on the following language from Barker:
We regard none of the four factors identified above [including prejudice] as either a necessary or sufficient condition to the finding of a deprivation of the right to speedy trial. [Emphasis supplied.] Barker, 407 U.S. at 533, 92 S.Ct. at 2193 quoted in Moore, 414 U.S. at 26, 94 S.Ct. at 189.8
That language is also clear. Thus, the petitioner properly relied on Moore for the proposition it clearly states and for which it has been cited on numerous occasions, United States v. Quinones, 516 F.2d 1309, 1311 (1st Cir.), cert. den. 423 U.S. 852, 96 S.Ct. 97, 46 L.Ed.2d 76 (1975); United States v. MacDonald, 632 F.2d 258, 269 (4th Cir.1980); United States v. Campbell, 531 F.2d 1333, 1335 (5th Cir.), cert. den. 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 121 (1977); Trigg v. State of Tennessee, 507 F.2d 949, 954 fn. 11 (6th Cir.), cert. den. 420 U.S. 938, 95 S.Ct. 1148, 43 L.Ed.2d 414 (1975); United States v. Anderson, 621 F.2d 292, 294 (8th Cir.), cert. den. 449 U.S. 1021, 101 S.Ct. 588, 66 L.Ed.2d 483 (1980); United States v. Henry, 615 F.2d 1223, 1232 fn. 12 (9th Cir.1980).9
Despite the fact that under Barker and Moore Terry was not required to demonstrate actual prejudice, I believe that he has prevailed as to that factor. Every court that has reviewed his case has found that the thirty-two month delay was “presumptively prejudicial.” The state has never contested that proposition. Yet no court has given Terry the benefit of that presumption. That presumption is especially important in this case because due to the nature of the claim it is impossible for the petitioner to give a detailed presentation of the prejudice. The majority suggests that Terry should have requested an evidentiary hearing in the district court on the issue of his memory loss.10 However, the state has never contested his assertion of memory loss except to make the weak argument that the jury’s verdict impliedly found that he was lying. Even if a hearing were held, what more could Terry do but repeat his state court testimony? Surely,. no other witness would be competent to testify to Terry’s ability to remember the events of March 5,1975. Such a hearing would be an exercise in futility.
Even though Terry is entitled to the presumption of prejudice, that should not mean that he automatically prevails on the fourth Barker factor. I believe it would be appropriate in this type of case to require that there be a reasonable possibility that the jury could have reached a different result *1227by considering the asserted evidence foreclosed by delay, see United States v. Walton, 411 F.2d 283, 288 (9th Cir.1969); Estrella v. United States, 429 F.2d 397, 400 (9th Cir.1970). If there was overwhelming evidence against the petitioner we might be justified in looking askance at a claim of lack of memory and loss of evidence. However, in this case the only incriminating evidence against Terry was the identification testimony of Baker which, as discussed previously, had significant weaknesses. Furthermore, we have the statement by the trial judge that he was surprised by the verdict. Under these circumstances I believe there is a reasonable possibility that if Terry had been able to present a specific alibi the jury could have reached a different result. Therefore, I believe that Terry has prevailed as to the fourth factor of Barker.
Barker requires that in analyzing a speedy trial claim we must apply a balancing test, utilizing the four factors stated therein, which weighs the conduct of both the prosecution and the defendant. Every court to review Terry’s case has concluded that he prevails on the first two factors since the thirty-two month delay was presumptively prejudicial and caused solely by the state’s negligence. The courts have also agreed that the third factor, the defendant’s assertion of his right to speedy trial, has little significance in the context of this case. As to the fourth factor, I believe that under the analysis proposed above Terry must prevail. Therefore, balanced against Terry’s conduct and situation is only the state’s inexcusable failure to perform its constitutional duty to make a diligent, good-faith effort to bring him to trial, see Smith v. Hooey, 393 U.S. 374, 383, 89 S.Ct. 575, 579, 21 L.Ed.2d 607 (1969). Under the standard of Barker, Terry has clearly demonstrated a denial of his constitutional right to speedy trial and his entitlement to the Writ of Habeas Corpus.
In summary, I would note that the parties agree that this is a case of first impression.11 In its memorandum before the district court, the respondent stated:
In a sense this case presents a unique situation for the Court’s consideration. Respondents have been unable to find any case dealing with a delay between the filing of the information and arrest where the delay was not attributable to the defendant.
Furthermore, this is the first reported case in which a petitioner has made a reasonable claim of total memory loss in a speedy trial context. However, all the courts which have reviewed Terry’s claim have failed to address the issue of how a person can demonstrate prejudice in this type of situation. Instead, they have resorted to intellectual short cuts to avoid the question squarely presented by the record in this case. The Indiana Court of Appeals begged the question by saying Terry hadn’t demonstrated prejudice, the district court simply obscured the issue, and the majority here has concluded, on an insufficient basis, that Terry is lying. The obvious answer to the question is that petitioner cannot show specific examples of actual prejudice in this situation and that he cannot reasonably be required to satisfy such an impossible burden. As discussed above, I believe the principles of Barker and Moore provide the necessary analytical framework for resolving Terry’s claim. Based on those principles, I agree with Judge Staton that Terry was denied his constitutional right to a speedy trial and *1228that as a result of that denial his trial was unfair. In my opinion, this is the one petition in a thousand in which the writ should be granted.
Accordingly, I would grant the Writ of Habeas Corpus and release the petitioner.
. This explanation was offered for the first time in the district court; there is no mention of it in the state court record. Furthermore, there is no evidence in the record of any attempt to serve the warrant or to correct the misinformation.
. Despite the fact that Dungan did not take the stand, he was permitted to testify through inadmissible hearsay elicited from Baker by the state’s attorney:
Q. Do you know whether or not Melvin Dungan can identify any one?
A. He said that he could remember one of them.
Q. Do you know which one?
A. Him.
*1223Q. Do you know whether or not he ever identified any one in this case?
A. I don’t think he went to the police station. And I seen him a few times after this, but it had been a little while. R. 183-184.
I note, however, that the record does not reflect any objection by defense counsel to this prejudicial hearsay.
. Terry had never been convicted of any felony at the time of trial.
. This must be the testimony that the majority relies on for the statement “Sometime prior to the robbery, Terry had frequented the vicinity of the gas station.” There is no evidence that Terry was ever near the gas station before the robbery except Starks’ testimony relating to events 3-5 years prior to the alleged crime.
. It is undisputed that Terry has exhausted his state remedies.
. The majority’s description of Terry’s memory loss as a “convenient alibi” is a gross mischaracterization. As noted above, loss of memory , is not a defense to the crime of robbery and thus it cannot be an alibi. Furthermore, as the result of his case clearly demonstrates, Terry’s inability to recall his activities on the night of March 5, 1975 was hardly convenient. But what is particularly unfathomable to me is that the majority, and apparently the district court, actually believe that this man went to trial with the strategy of lying about his ability to remember his whereabouts on the night of the crime. That would hardly be the tactic of a sane defendant.
. It is interesting to note that no party or court has previously contended that § 2254(d) was applicable to this case.
. This principle was recently reiterated in United States v. Eight Thousand Eight Hundred and Fifty Dollars, - U.S. -, -, 103 S.Ct. 2005, 2012, 76 L.Ed.2d 143 (1983) in identical terms.
. Recently, this Court stated in United States v. Deleon, 710 F.2d 1218 (7 Cir.1983):
The fourth and final factor is prejudice to the defendant because of the delay. With respect to this factor Deleon notes that according to Moore v. Arizona, 414 U.S. 25, 26 [94 S.Ct. 188, 189, 38 L.Ed.2d 183] (1973), an affirmative showing of prejudice by the defendant is unnecessary. P. 1222.
While the panel in that case did not construe Moore, I believe it is significant that it did not take issue with Deleon’s interpretation of that case’s holding.
. If the majority believe that an evidentiary hearing is appropriate, it has a duty to remand the case for that purpose, Townsend v. Sain, 372 U.S. at 312, 83 S.Ct. at 756, and not permit petitioner’s claim to “founder in a procedural morass,” see Harris v. Nelson, 394 U.S. 286, 292, 89 S.Ct. 1082, 1086, 22 L.Ed.2d 281 (1969).
. The district court noted that the similarity of State v. Cornell, 440 Ohio Misc. 29, 335 N.E.2d 891 (1975) to this case caused him “some consternation.” While that case is certainly favorable to the appellant, the facts are less egregious than those here. In Cornell the defendant was arrested on January 10, 1972, but was officially informed on February 12, 1972 that the charge against him was dismissed. What he was not told was that the reason the charge had been dismissed was because the grand jury had Indicted him on February 8, 1972 for the same occurrence. He was unaware of this fact until he was arrested again some thirty-five months later on the same charge (despite his continual availability). The court in Cornell granted the defendant’s motion to dismiss the charge. While that case bears some similarity to this case, the defendant in Cornell at least had reason to focus on the time frame of the alleged crime and thus was not subject to the complete and reasonable memory loss which has so damaged Terry.