Donovan v. Delgado
| Citation | 339 F. Supp. 446 |
| Decision Date | 15 October 1971 |
| Docket Number | Civ. No. 545-71. |
| Parties | David W. DONOVAN, Petitioner, v. Gerardo DELGADO, Warden, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
COPYRIGHT MATERIAL OMITTED
David W. Donovan, pro se.
Ulpiano Crespo, Dept. of Justice, Com. of P. R., San Juan, P. R., for respondent.
Petitioner filed on July 23, 1971, a Petition for Habeas Corpus and a Motion for Dismissal of Warrant alleging that he was and continues to be denied a fair and speedy trial, in violation of his constitutional rights as a citizen of the United States of America, in relation to Warrant No. 68-860, lodged against him by the Commonwealth of Puerto Rico, on June 7, 1968. Motion to file and proceed in forma pauperis was granted by the Court.
It is petitioner's contention that although he has been available and amenable to process and the judicial authorities of Puerto Rico have the obligation to see that he receives a speedy trial, said authorities have denied him, without any legal or just cause, his right to a speedy trial in violation of his constitutional rights under the Sixth Amendment of the United States Constitution, as recently expounded by the Supreme Court in Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607.
The petition further alleges that the petitioner has requested a fair and speedy trial in relation to the charge via petitions made in July 1968 and in July 1969, and that he has sent countless letters to the Commonwealth Superior and Supreme Courts and to all officials concerned requesting said speedy trial and that said communications show that it has been the petitioner who has taken all the initiative in this matter. Petitioner also alleges that he has taken all the necessary steps in relation to exhausting the legal remedies available in the Commonwealth of Puerto Rico before submitting this petition for habeas corpus. It is petitioner's final contention that as a result of the delay, his defense in the pending criminal proceeding has been irrevocably prejudiced, in that defense witnesses are no longer available; for which reason, he requests this Court to grant the petition of habeas corpus to bring about the dismissal of warrant No. 68-860.
The petitioner is presently under the custody of the Commonwealth of Puerto Rico in lieu of a detainer honored by the authorities at the United States Penitentiary in Leavenworth, Kansas, where he was committed upon the imposition of three concurrent sentences of 15 years by the United States District Court for the District of Massachusetts after the petitioner pleaded guilty to three indictments charging him with bank robbery. Said detainer and the transfer of the petitioner to the Commonwealth of Puerto Rico authorities, is based on a warrant of First Degree Murder and on comity, so that the petitioner can be tried in the Commonwealth Courts, with the understanding that he, after trial, be returned to the federal authorities at the U. S. Penitentiary, Leavenworth, Kansas.
The petitioner is awaiting trial in Criminal Number G-70-2439 in the Commonwealth of Puerto Rico, tentatively scheduled to be held on September 16, 1971.1
In attention to the petition filed on July 23, 1971, this Court, on August 9, 1971, issued an Order to Show Cause why a petition for habeas corpus should not be granted.
A hearing on the Order to Show Cause was held on August 20, 1971. On said hearing, the respondent contended that the continuances on the petitioner's case, had been granted by the state court on motions by the petitioner and of his assigned counsel in the state criminal proceeding. The hearing was continued, so as to allow the respondent to present documents in evidence showing the continuances in the state prosecution and also to give an opportunity to the attorney for the petitioner on said proceedings to be present.
On August 27, 1971, the respondent filed a Return to the Order to Show Cause, supported by a Memorandum of Law, moving the Court to dismiss the petition for Writ of Habeas Corpus on the grounds that: (a) the petitioner has failed to exhaust all available state remedies; (b) the Commonwealth of Puerto Rico has been diligent in trying to bring the petitioner to trial in Puerto Rico and has acted in good faith; (c) the delays in bringing the petitioner to trial have been caused by acts of petitioner himself and of other persons out of the control and supervision of the Commonwealth of Puerto Rico; and (d) from the fact of the petition, even viewed in the most favorable light to petitioner, the jurisdiction of this Court cannot be inferred.
On that same day, the Court heard argument from the petitioner and the respondent in relation to the Order to Show Cause. The petitioner and the respondent submitted to the Court all documents related to their contentions. The matter was submitted to determine jurisdiction by this Court.
On the basis of the foregoing and the documentary evidence introduced by the parties herein, this Court makes the following
On March 27, 1968, an arrest warrant was issued against the petitioner by the Commonwealth of Puerto Rico, charging him with first degree murder that allegedly took place on March 26, 1968.
The petitioner was arrested by the Federal Bureau of Investigations at Boston, Massachusetts and placed under the custody of the United States Marshal Office at Boston, Massachusetts.
The Commonwealth of Puerto Rico learned that the petitioner was detained by said officers and on April 1968, initiated proceedings to get the petitioner extradited to Puerto Rico.
On March 25, 1968, a complaint had been issued by the U. S. Commissioner in Boston, Massachusetts, charging the petitioner with bank robbery. Three Indictments were returned by a Grand Jury for the offense. On August 5, 1968, the petitioner pleaded guilty in two of the indictments, and was sentenced on October 28, 1968 to concurrent sentences of 15 years. Subsequently, on November 21, 1968, on a plea of guilty on the third indictment for bank robbery, the petitioner was sentenced for 15 years to be served concurrently with the previous sentences and at the U. S. Penitentiary, Leavenworth, Kansas.
On December 26, 1968, the Commonwealth of Puerto Rico lodged a detainer against the petitioner on the United States Penitentiary, Leavenworth, Kansas. The Commonwealth informed, on January 21, 1969, the authorities at said Penitentiary, that they would extradite if necessary.
On July 10, 1969, the petitioner sent to the United States District Court in San Juan, Puerto Rico, a petition for fair and speedy trial or dismissal of warrant, petition for writ of habeas corpus ad prosequendum.2 The Clerk of the United States District Court sent said petition to the Acting Administrative Judge of the Superior Court, Criminal Section in San Juan, Puerto Rico, who acknowledged receipt on July 30, 1969.
Said petition requested that a Writ of Habeas Corpus Ad Prosequendum, be issued or that the warrant issued by the Commonwealth of Puerto Rico against him be dismissed for lack of speedy trial as expounded in Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607.
On September 9, 1969, the Superior Court of Puerto Rico issued the requested Habeas Corpus Ad Prosequendum ordering the Warden of the United States Penitentiary, Leavenworth, Kansas, to deliver the petitioner to the United States Marshal for the District of Puerto Rico, in order that he be brought before the Commonwealth Superior Court so as to continue all criminal proceedings against the petitioner.
The documents submitted by the respondent reflect that the petitioner, between November 1969 and April 1970, wrote various letters to the Commonwealth judicial authorities requesting a speedy trial and a Writ of Habeas Corpus Ad Prosequendum.
On December 16, 1969, the Chief Judge of the Superior Court, Criminal Section, wrote the petitioner a letter acknowledging receipt of many of his letters and sending him a copy of the Order entered by the Superior Court on September 9, 1969, granting the Writ of Habeas Corpus Ad Prosequendum.
The record also reflects that on April 15, 1970, the Superior Court of the Commonwealth of Puerto Rico, issued an Order to Show Cause why the Habeas Corpus Ad Prosequendum issued on September 16, 1969, should not be dismissed. On May 5, 1970, said Writ was dismissed by reason of mootness, due to the fact that no agreement had been reached between the Commonwealth of Puerto Rico and the United States Attorney General in relation to the honoring of said Writ.3
On June 11, 1970, after the U. S. Attorney General through the Director of the Bureau of Federal Prisons had authorized the federal officers involved to honor the Writ of Habeas Corpus Ad Prosequendum, requested by the Commonwealth of Puerto Rico, the Commonwealth Superior Court again issued the Writ.
The record also reflects that on May 29, 1970, the Supreme Court of Puerto Rico issued an Order denying the petitioner a petition for habeas corpus and further stating that to the effect of the speedy trial requested by the petitioner, the matter should be notified to the Legal Aid Society in order that the petitioner should be granted said legal aid in the court of first instance.
From the record, it also appears that the petitioner filed on June 29, 1970, a Petition for Habeas Corpus and Motion for Dismissal of Warrant in the United States District Court for Puerto Rico.
The record reflects that on July 16, 1970, the United States Marshal for the District of Massachusetts, delivered the petitioner to the U. S. Marshal for the District of Puerto Rico in accordance with the Writ of Habeas Corpus Ad Prosequendum, issued on June 11, 1970.
On August 12, 1970, the prosecuting attorney for the Commonwealth of Puerto Rico, filed a complaint against the petitioner charging him with the commission of First...
To continue reading
Request your trial
- Mellinger v. Laird
-
Balthazar v. Superior Ct. of Com. of Mass.
...v. Manson, 527 F.2d 363, 366 (2nd Cir. 1975), cert. granted, 425 U.S. 957, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976); Donovan v. Delgado, 339 F.Supp. 446, 454 (D.P.R.1971); but see Foley v. Commonwealth, 310 F.Supp. 1330 (D.Mass. 1971). Authority is split, therefore, as to whether exhaustion can......
-
Pagan v. Rivera, Civ. No. 384-72.
...the state, considerations of practical efficiency, interest of federal courts and regard for the rights of the prisoners. Donovan v. Delgado, D.C., 339 F.Supp. 446. (decision entered on October 15, 1971). Cf. Figueroa Rodríguez v. Concepción Martínez, Civil No. 193-72 (Order entered March 1......
-
Garcia v. Ramirez
...consideration of practical efficiency, interest of the federal courts and regards for the rights of the prisoners. Donovan v. Garardo Delgado, 339 F.Supp. 446, 1971. Orderly procedure requires that when a federal court is asked to issue a writ of habeas corpus in a case of a person held und......