Echevarria v. Bell

• Citation: 579 F.2d 1022
• Decision Date: 29 June 1978
• Docket Number: No. 78-1205,78-1205
• Parties: Jose William ECHEVARRIA, Petitioner-Appellant, v. Griffin BELL, Attorney General of the United States, Warden W. R. Nelson, Metropolitan Correctional Center, and State of Illinois, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1022

579 F.2d 1022

Jose William ECHEVARRIA, Petitioner-Appellant, v. Griffin BELL, Attorney General of the United States, Warden W. R. Nelson, Metropolitan Correctional Center and State of Illinois, Respondents-Appellees.

No. 78-1205.

United States Court of Appeals Seventh Circuit.

Argued April 28, 1978.

Decided June 29, 1978.

P. Sveinbjorn Johnson, Chicago, Ill., for petitioner-appellant.

John Prusik, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before FAIRCHILD, Chief Judge, MARKEY, Chief Judge of the Court of Customs and Patent Appeals, ¹ and BAUER, Circuit Judge.

MARKEY, Chief Judge.

Appeal from an order of the United States District Court for the Northern District of Illinois, case No. 77 C 2772, dismissing petitioner's motion for issuance of a writ of habeas corpus. We affirm.

Background

On October 21, 1975, petitioner Echevarria was sentenced to prison on a federal charge. On November 16, 1976, upon petition of the respondent State of Illinois, pursuant to the Interstate Agreement on Detainers Act (Act), Ill.Rev.Stat. ch. 38 (1973), Echevarria was removed from federal to state custody, to stand trial on an unrelated state charge and was lodged in the County Jail. On November 24, 1976, on Echevarria's own motion, the mittimus previously issued to the County Jail was withdrawn, Echevarria was returned to federal custody, and was lodged in the Metropolitan Correctional Center virtually across the street from the County Jail. On December 13, by order of the state court, he was remanded to the custody of the Cook County Sheriff. On February 2, 1977, Echevarria pleaded guilty to the state charge, and was sentenced to serve a state prison term concurrent with his federal term. On November 17, 1977 Echevarria filed an amended petition for a writ of habeas corpus under 28 U.S.C. § 2254(b), ² alleging that a violation of Article IV(e) of the Act, Ill.Rev.Stat. ch 38, § 1003-8-9(a), ³ occurred when he was returned to federal custody on November 24, 1976, without his having been tried on the state charge. The district court dismissed the petition for failure to show exhaustion of state remedies. ⁴ This court issued a certificate of Probable Cause in view of the alleged violation of the Act.

On appeal, Echevarria argues that, as envisioned in § 2254(b), circumstances existed relieving him from the requirement of exhausting state remedies; specifically, that in Neville v. Friedman, 67 Ill.2d 488, 10 Ill.Dec. 575, 367 N.E.2d 1341 (1977) and in People v. Dye, 69 Ill.2d 298, 13 Ill.Dec. 695, 371 N.E.2d 630 (1977), the Illinois Supreme Court denied relief where the record disclosed a continuance granted at defendant's request, and that there is no reason to believe that the Illinois courts would now take a different position. Echevarria cites federal court decisions, ⁵ allegedly contrary to the position set forth in Neville and Dye, as indicating that Illinois courts are in disagreement with federal law as defined in those decisions.

Issues

The issues are (1) whether the Act is a law of the United States conferring jurisdiction on this court under 28 U.S.C. § 2254(a); ⁶ and (2) whether the circumstances here relieved Echevarria of the requirement that he exhaust his state remedies. ⁷

OPINION

1. Jurisdiction Under 28 U.S.C. § 2254(a)

Illinois argues that no issue involving the violation of "Laws . . . of the United States" is presented here. We disagree.

Under the Act, prisoners have both state and federal rights. Art. I, § 10, cl. 3 of the United States Constitution provides: "No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State . . ." Congress has given consent in advance "to any two or more States to enter into agreements . . . for cooperative effort . . . in the prevention of crime and in the enforcement of their respective criminal laws . . ." 4 U.S.C. § 112(a) (1970). The Act is an agreement for cooperative effort in the enforcement of the signatory states' criminal laws. "The construction of a compact sanctioned by Congress under art. I, § 10, cl. 3, of the Constitution presents a federal question." ⁸ Petty v. Tennessee-Missouri Bridge Commission 359 U.S. 275 at 278, 79 S.Ct. 785 at 788, 3 L.Ed.2d 804 (1959) (citing Delaware River Commission v. Colburn, 310 U.S. 419 at 427, 60 S.Ct. 1039, 84 L.Ed. 1287 (1940)), and "involves a federal 'title, right, privilege or immunity.' " Colburn, 310 U.S. at 427, 60 S.Ct. at 1041. ⁹ Thus an allegation of a state prisoner, that he has been denied rights under the Act, is an allegation that he is in custody in violation of a law of the United States, and the requirement for federal habeas corpus jurisdiction under 28 U.S.C. § 2254(a) is met. ¹⁰

2. Exhaustion of State Remedies

Exhaustion is not a jurisdictional requirement, and does not go to the power of the district court to hear petitions for writ of habeas corpus. United States ex rel. Wilson v. Rowe, 454 F.2d 585 at 588 (7th Cir. 1972). However, as this court said in that case, Id. at 589, "the principle of comity gives continued real viability to the (exhaustion) doctrine which should be followed unless the state processes are demonstrably ineffective to protect the rights of the petitioner." ¹¹

" When a federal court is unable to determine unequivocally that an issue has been considered and ruled upon by the state courts, comity requires that the initial determination of the issue be made by the state courts." Tyler v. Swenson, 527 F.2d 877 at 880 (8th Cir. 1976) (citing Fay v. Noia,372 U.S. 391 at 420, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). See also United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974).

Whether a three-week period of federal custody, following eight days after removal to state custody under the Act, and granted at a prisoner's request violates Article IV(e) of the Act has not been decided by the Illinois courts. The cases cited by Echevarria, Neville and Dye, supra, are sufficiently distinguishable on their facts from those in the present case, that it cannot be determined "unequivocally that (the) issue has been considered and ruled upon by the state courts . . ."

In Neville, a single issue was presented:

Does article IV(e) of section 3-8-9(a) of the Unified Code of Corrections require the dismissal of indictments pending against a defendant who, as a result of a lengthy, indefinite trial continuance granted at his request, has been returned to the sending jurisdiction without objection on his behalf?

67 Ill.2d at 491, 367 N.E.2d at 1342.

In Dye, the court stated:

We believe that the reasoning of Neville is applicable to the situation before us today. And, while we are aware of certain dissimilarity between the facts in Neville and those in the case at bar, we do not feel that the differences are controlling. Both prisoners were returned to the places of their original imprisonment, the Federal penitentiary in Terre Haute, during the length of Continuances granted at their own request. As in Neville (67 Ill.2d at 494, 367 N.E.2d at 1344), we regard this to be a highly significant fact.

69 Ill.2d at 303, 371 N.E.2d at 632 (emphasis added). In the present case, no continuance Per se was involved. Echevarria was returned to federal custody at his own request, and prior to the state trial, but nothing of evidence indicates that a continuance was requested or ordered. The net result was that Echevarria spent three weeks of his pretrial detention on the state charge in federal, rather than state, custody. Whether his state trial was delayed, either by action of state or federal authorities or by his own action ¹² in requesting transfer of custody, does not appear in the record.

Echevarria's argument, that the Illinois courts have, and therefore would, disregard certain federal decisions allegedly requiring issuance of the writ he seeks, is without merit. The federal cases allegedly disregarded in Neville and Dye Ricketson, Mauro, and Sorrell, supra note 3 are distinguishable.

In Ricketson, defendant, while serving a sentence in state prison, was taken to federal court on three separate occasions for arraignment, deposition, and disposition of pre-trial motions Before any detainer was filed by the United States. This court therefore held that the Act was inapplicable and the failure to try defendant before return to state custody was irrelevant. Because the court was not called upon to interpret Article IV(e), its statement relied on by Echevarria, that ". . . there are no exceptions to the requirement that defendant not be returned to state custody untried," 498 F.2d at 373, is of limited, if any precedential value and cannot in itself be presumed to be either persuasive, or controlling upon Illinois' interpretation of Article IV(e). In Ricketson, this court was not looking beyond the facts there presented, nor could it have considered the ramifications of its statement in other contexts, ". . . the contemplation of which (was) precluded by the exigencies of deciding a particular case presented on a limited record developed by present parties." Leannais v. Cincinnati, Inc., 565 F.2d 437 at 441 (7th Cir. 1977).

Similarly, the quotation from Mauro relied upon by Echevarria, "The participating parties to the Agreement have . . . solemnly promised that his (defendant's) trial will be expeditious and will take place before he is returned on penalty of a dismissal of the indictment with prejudice," 544 F.2d at 593, cannot be considered controlling. In Mauro, each defendant separately moved for dismissal of his indictment prior to trial, on the ground of violation of Article IV(e) of the Act, which motions were granted, Id. at 590, and the issue in Mauro was whether a writ of habeas corpus ad prosequendum issued by the United States should be treated as a detainer under the Act. Id. at 591.

Sorrell is equally distinguishable. There, defendant was twice removed from state prison to...