816 F.2d 220 (5th Cir. 1987), 86-3193, Dickerson v. State of La.

Docket Nº:86-3193.
Citation:816 F.2d 220
Party Name:Johnny DICKERSON, Petitioner-Appellant, v. STATE OF LOUISIANA, et al., Respondents-Appellees.
Case Date:May 13, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 220

816 F.2d 220 (5th Cir. 1987)

Johnny DICKERSON, Petitioner-Appellant,

v.

STATE OF LOUISIANA, et al., Respondents-Appellees.

No. 86-3193.

United States Court of Appeals, Fifth Circuit

May 13, 1987

Rehearing Denied June 25, 1987.

Page 221

Caleb Didriksen, (Court-appointed), New Orleans, La., for petitioner-appellant.

Gail K. Sheffield, Charles V. Genco, Asst. Dist. Attys., Amite, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GARWOOD, JOLLY and HILL, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

Johnny Dickerson appeals the denial of his petition for a writ of habeas corpus. He contends that his sixth amendment right to a speedy trial has been violated and also that his fourteenth amendment due process rights have been violated. We conclude that a pre-trial habeas remedy is not available to consider the merits of his sixth amendment speedy trial claim or his due process claim. Accordingly, we affirm.

I.

Dickerson was arrested by Louisiana officials on murder and kidnapping charges after he had finished serving a federal sentence on September 18, 1986. While still serving his federal sentence, a detainer was lodged against Dickerson with federal prison officials in connection with the murder and kidnapping charges.

The alleged murder and kidnapping for which Dickerson was arrested occurred on April 25, 1981, in Tangipahoa Parish, Louisiana. Dickerson had been arrested by state officials on January 19, 1981, for receiving stolen goods and was released on bond. He was free until February 2, 1982, when he was arrested for aggravated assault by state officials and again released on bond. After that he was free for six months until arrested for a firearms violation by the FBI on August 22. Shortly thereafter, on September 2, Dickerson was convicted of the federal firearms violation; he served his sentence in various federal prisons until he was released on September 18, 1986.

On February 3, 1983, while Dickerson was in a federal prison, two arrest warrants were signed by a judge of a Louisiana state court. 1 The arrest warrants alleged respectively that Dickerson committed first degree murder and aggravated kidnapping. After these warrants were issued, the Tangipahoa Parish Sheriff's Office wanted to extradite Dickerson from the federal prison in Harrisburg, Pennsylvania, where Dickerson was being held. However, federal officials told the sheriff's office that they would not release Dickerson while he was in federal custody. The sheriff's office was told by federal officials that the only thing the sheriff's office

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could do was issue a detainer. Accordingly, Detective Westmoreland of the sheriff's office then placed a detainer on Dickerson with federal prison officials based on the arrest warrants. 2 On February 15 the sheriff's office was advised of the acceptance and placement of the detainer.

Dickerson first requested a speedy trial on the murder and kidnapping charges in affidavit form on March 12, 1983. On April 27 Dickerson wrote the state court for information concerning his motion for speedy trial. The matter was set for hearing on June 15; the hearing was held, but the result is unknown and there is no transcript of the hearing in the record. On July 20 another hearing on the motion was held, but again there is no result in the record, and again no transcript was made. It appears, however, that the motions were denied.

In October 1983 Dickerson wrote further motions requesting a speedy trial; these motions were apparently filed with the state court in late October or early November. On December 21 Dickerson was advised by a letter from the clerk of the 21st Judicial District Court that it no longer had any outstanding charges or warrants for his arrest but that the clerk's office had no information regarding any detainers that might have been placed on him. 3

During this time Dickerson was also pursuing other avenues of relief regarding the detainer. On October 8, 1983, through a request for an administrative remedy from the United States Department of Justice, Dickerson asked that the detainer be removed from his file. On October 19 the government advised him that Louisiana needed to file for a writ ad prosequendum. On November 28 Dickerson's request to the government for an administrative remedy was denied; the government responded that two arrest warrants filed by the sheriff's office in Tangipahoa Parish with federal prison officials were outstanding and remained in effect. Furthermore, since Louisiana was not a member of the Interstate Agreement on Detainers Act (the Detainers Act), 18 U.S.C.App., the government informed Dickerson that he could not request disposition under the Detainers Act. 4

On December 14 Dickerson filed a request for an appeal of the government's denial of his request for an administrative remedy; that request was denied on December 22.

On January 3, 1984, Judge Fogg of the state district court denied a request to discharge Dickerson from state custody. Dickerson subsequently filed further motions with the district court as well as an application for a writ of mandamus with the state court of appeals. On January 10 the Louisiana First Circuit Court of Appeal denied the writ and other relief. Dickerson then filed another motion for a speedy trial in the state district court.

On January 24, 1984, the government advised Dickerson that it could not force Louisiana to try him, that it had verified with the state court that the arrest warrants were valid and outstanding, and that consequently it would not remove the detainer.

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On January 30 Dickerson filed another motion for a speedy trial with the state court. On February 15 he filed a notice of appeal from Judge Fogg's ruling of January 3, and on March 16 he filed another motion in state court asking the court to dismiss the charges along with a brief in support of the motion. On May 30 the state appeals court denied Dickerson's request for appeal and for supervisory writs, 450 So.2d 1080 (La.Ct.App.1984).

On July 3, 1984, Dickerson again requested the federal government to remove the detainer. On December 2 Dickerson renewed his request for information from the federal government about the detainers. Eight days later, on December 10, Dickerson was advised that the detainer had been placed by the Tangipahoa Parish Sheriff's Office. He filed another petition for a speedy trial in the state court that same day.

On January 28, 1985, the chief criminal deputy of the sheriff's office wrote the manager of the United States Penitentiary Administration Systems and informed him that he (the deputy) intended to have Dickerson arrested for murder and kidnapping. On January 31 Dickerson filed another petition for a writ of habeas corpus ad prosequendum with the state court. In his petition, Dickerson again asked that he be tried as quickly as possible; alternatively, he asked the court to dismiss the charges against him with prejudice for violation of his sixth amendment right to a speedy trial. At this point, however, the state had not yet indicted Dickerson on any specific charges. The state court apparently denied the motion. Dickerson subsequently applied for remedial writs from the Louisiana Supreme Court; although the record does not reflect when this was done, on February 8 the Louisiana Supreme Court denied his application. On May 14 Dickerson filed two more motions for a speedy trial in the state court.

Having seemingly exhausted all potential state remedies, Dickerson filed a petition for habeas corpus relief in federal district court on June 15, 1985. In his pro se petition Dickerson asserted again that his sixth amendment right to a speedy trial had been violated; Dickerson also asserted that his due process rights under the fourteenth amendment had been violated. Although his petition is somewhat ambiguous, he apparently asked the court to order the removal of his detainer, to order Louisiana to grant him a speedy trial, or to dismiss the murder and kidnapping charges against him because of the long delay by Louisiana officials. 5

On February 8, 1986, the district court denied Dickerson's petition for habeas corpus relief on jurisdictional grounds under section 2254. 6 The court reasoned that since Dickerson had never been arrested, charged, tried or convicted of any charges by Louisiana, no judgment had been rendered by a Louisiana state court that would provide a federal court with jurisdiction of his petition under section 2254(b). The court also stated in the alternative that Dickerson's sixth amendment rights had not yet attached since he had not been formally charged by the state. On February 19 the court entered a final judgment denying Dickerson's requested relief. Dickerson subsequently filed a notice of appeal.

At oral argument additional facts about Dickerson's custody were revealed. After

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Dickerson was released from federal prison on September 18, 1986, he was brought to Louisiana when the detainer was activated. Dickerson was then arrested and brought before a Tangipahoa Parish grand jury on November 13 and was indicted that day for one count each of first degree murder, aggravated kidnapping, and armed robbery. At his arraignment on November 24, Dickerson pled not guilty; his trial was set for April 27, 1987. Dickerson is currently being held in the Lafayette Correctional Center awaiting trial. 7

II.

Our task then is to determine whether Dickerson is entitled to raise his speedy trial 8 and due process claims through federal habeas corpus proceedings before Louisiana has tried him on state charges when his constitutional claims can be raised at his state trial.

A.

...

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