Klein v. Kindt, 90-2051
| Decision Date | 18 December 1991 |
| Docket Number | No. 90-2051,90-2051 |
| Citation | 960 F.2d 151 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. John M. KLEIN, Petitioner/Appellant, v. Tom KINDT, Warden, United States Penitentiary, Terre Haute, Indiana and Attorney General of the State of Illinois, Respondents/Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before POSNER, COFFEY and RIPPLE, Circuit Judges.
John Klein, a federal prisoner, seeks to set aside a detainer filed against him by state officials as being in violation of his due process rights. See 28 U.S.C. § 2254. The district court summarily dismissed Klein's habeas corpus petition under Rule 4 of rules governing § 2254 cases, finding the claim frivolous. We affirm.
In May of 1981 Illinois police arrested the petitioner on charges of theft and burglary, and he was released on bond. In June of 1982 the FBI arrested him for bank robbery and held him in custody. One month later the state court issued a writ of habeas corpus ad prosequendum, requesting the United States marshal to produce the petitioner for his state trial. The petitioner was then convicted and the state court sentenced him to a maximum of six years in prison. After sentencing, that court issued a mittimus 1 directing the sheriff to take petitioner to the Illinois Department of Corrections, after which he would be taken to the Department of Public Safety to serve his time. The court, however, expressed some doubt as to whether the sheriff could comply with the mittimus, as Klein was then in federal custody, having been loaned to the state for prosecution only. This doubt was well-founded, as the sheriff did not take the petitioner to state prison officials, but rather delivered him back to the United States marshal.
The petitioner remained in federal custody, and in September of 1982 was convicted of bank robbery in federal district court and sentenced to nineteen years. He began serving this term in the federal penitentiary. In 1983 the Circuit Clerk of Calhoun County, Illinois contacted federal officials and lodged a detainer against Klein requiring that he be returned to serve his Illinois sentence at the end of his federal sentence. The clerk's letter specifically stated that "[petitioner's Illinois] sentence does not run concurrent with the sentence he received in Missouri." R.Doc. 1, Exhibit E. Petitioner sought to have his state and federal sentences run concurrently in 1984, but the state denied his request as untimely. See Ill.Rev.Stat., ch. 38 § 1005-8-4(a) (). A 1987 request to withdraw the detainer was also denied. Petitioner then filed this habeas corpus action, alleging that he was denied due process when the sheriff turned him over to the United States marshal instead of complying with the mittimus, and so the time spent in federal custody should be applied to his Illinois sentence.
The petitioner does not challenge the state court's refusal to make his state and federal sentences run concurrently. Rather, his claim is that the sheriff deprived him of due process by giving him to the federal authorities instead of taking him to the state prison as the mittimus directed. The state argues that Klein defaulted this claim by not raising it in a state post-conviction petition or appealing his motions for concurrent sentences or to withdraw the detainer. Klein's attorney seems to agree that there may have been a procedural default, stating that he cannot find any evidence that Klein appealed his state court motions, but requests that we remand the case so that he can attempt to demonstrate "cause and prejudice" to the district court. Klein's habeas corpus petition, however, plainly states that he did appeal his state court motions. R.Doc. 1, at 4. One of those motions was to withdraw the state's detainer, the same relief sought here. Though the state motion may have been based on different grounds than the instant petition, it seems likely that Klein has not defaulted his claim. In any event, we see no need to remand for an inquiry into "cause and prejudice" because we can decide the case on the merits today, thus determining the petitioner's rights as quickly as possible. Cf. Granberry v. Greer, 481 U.S. 129 (1987) (); Server v. Mizell, 902 F.2d 611 (7th Cir.1990) ().
Klein contends that the sheriff's failure to follow the mittimus subjected him to an excessive jail term. If the sheriff had delivered him to the state jail instead of to federal authorities, he argues, his sentence would have commenced and remained running until it expired, even during incarceration on the federal charge. Thus, he concludes, since he spent over six years in the federal penitentiary he has served his entire state sentence, and the state has no right to hold him.
To analyze this claim we must first examine the state court's authority over Klein. Klein was brought to state court under a writ of habeas corpus ad prosequendum. Such writs are used when it is necessary to remove a defendant from one jurisdiction in order to be prosecuted in the proper jurisdiction. See Carbo v. United States, 364 U.S. 611 (1960); United States v. Codgell, 585 F.2d 1130 (D.C.Cir.1978). The writ is also used when a prisoner has been charged by two sovereigns and the sovereign with custody must deliver the prisoner to be tried by the other. United States ex rel. Moses v. Kipp, 232 F.2d 147, 149-50 (7th Cir.1956). The sovereign with prior custody is known as the "sending" sovereign or state, while the sovereign prosecuting the prisoner is known as the "receiving" sovereign or state. In this case, for example, Klein was being held on federal charges in Missouri, but had to be taken to Illinois in order to be tried on the pending state charges. Ad prosequendum writs are generally construed as tools by which the sending sovereign loans a prisoner to the other. Crawford v. Jackson, 589 F.2d 693, 695 (D.C.Cir.1978); Morgan v. United States, 380 F.2d 686, 693 (9th Cir.1967); Hill v. United States, 186 F.2d 669, 671 (10th Cir.1951); see also United States ex rel. Moses v. Kipp, 232 F.2d 147, 150-51 (7th Cir.1956). The receiving sovereign's custody over the prisoner is temporary and limited to the purpose of prosecution and sentencing, and the sending sovereign decides whether it will waive its prior right to the prisoner. See Hernandez v. United States Attorney General, 689 F.2d 915, 919 (10th Cir.1982) (); Kipp, 232 F.2d at 151 (); Hayward v. Looney, 246 F.2d 56, 57 (10th Cir.1957) ( ); Lundsford v. Hudspeth, 126 F.2d 653, 655-56 (10th Cir.1942) ().
The threshold question in this case, then, is whether the federal marshal ever surrendered custody of Klein to the state; if he did not then the sheriff never had the authority to take him to begin his state sentence, and his failure to do so would not violate any constitutional...
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