Reed v. Clark

• Decision Date: 27 April 1993
• Docket Number: No. 90-3264,90-3264
• Parties: Orrin Scott REED, Petitioner-Appellant, v. Dick CLARK, Superintendent, and Attorney General of Indiana, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 209

984 F.2d 209

Orrin Scott REED, Petitioner-Appellant, v. Dick CLARK, Superintendent, and Attorney General of Indiana,

Respondents-Appellees.

No. 90-3264.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1992.

Decided Jan. 19, 1993.

Rehearing and Rehearing In Banc

Denied April 27, 1993.

Thomas J. McCarthy (argued), Jerold S. Solovy, Barry Sullivan, Scott I. Hamilton, Sharon L. Beckman, Jenner & Block, Chicago, IL, for petitioner-appellant.

Michael A. Schoening, Wayne E. Uhl (argued), Dist. Attys. Gen., Sharon L. Wright, Federal Litigation, Indianapolis, IN, for respondents-appellees.

Before POSNER and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

While serving time in federal prison, Orrin Scott Reed was indicted by Indiana on a charge of theft. Indiana asked the United States to deliver Reed for trial under the Interstate Agreement on Detainers. Indiana took custody of Reed on April 27, 1983. Article IV(c) of the IAD provides that "trial shall be commenced within one hundred twenty days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court ... may grant any necessary or reasonable continuance." Indiana thus had until August 25, 1983, to put Reed on trial or extend the time for "good cause shown in open court". Article V(c) prescribes dismissal of the charges, with prejudice, as the consequence of excessive delay.

Reed's trial began on October 18, 1983. Reed consented to a postponement from the scheduled date of September 13, but even that date was beyond the 120 days the IAD allows. He was convicted and sentenced to 34 years' imprisonment as an habitual offender. The Supreme Court of Indiana affirmed, concluding that Reed (who was serving as his own counsel) should have alerted the trial judge during hearings on June 27 and August 1 at which the trial date was set and then postponed. Reed v. State, 491 N.E.2d 182, 185 (Ind.1986). Had Reed reminded the judge of the 120-day limit during either of these hearings, instead of burying his demand in a flood of other documents, the court could have complied with the IAD's requirements.

                A collateral attack in state court foundered when the inferior courts treated the Supreme Court's decision as conclusive.   Reed then turned to federal court, which did not mention the state court's reason and instead held that Reed's many motions accounted for "a significant amount of the delay" and thus established "good cause" under Article IV(c)
                

A federal court may grant collateral relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). That principle immediately disposes of Reed's argument that Indiana failed to comply with its own procedures for establishing his status as an habitual offender. The premise is wrong, for the Supreme Court of Indiana, whose word on questions of state law is authoritative, concluded that the state had followed its own rules. 491 N.E.2d at 188-89. But it would not matter if Indiana were out of compliance with state law. "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, --- U.S. ----, ----, 112 S.Ct. 475, 480, 116 L.Ed.2d 385 (1991). See also, e.g., Jones v. Thieret, 846 F.2d 457 (7th Cir.1988). Nothing is to be gained by insisting, as Reed does, that Indiana violated the Constitution by misapplying its laws. Metamorphosing state into constitutional law is inconsistent with many decisions. E.g., Snowden v. Hughes, 321 U.S. 1, 8-11, 64 S.Ct. 397, 401-02, 88 L.Ed. 497 (1944); Archie v. Racine, 847 F.2d 1211, 1216-18 (7th Cir.1988) (in banc).

The Interstate Agreement on Detainers also is a state law--but because it is an interstate compact, it is a law of the United States as well. Carchman v. Nash, 473 U.S. 716, 719, 105 S.Ct. 3401, 3403, 87 L.Ed.2d 516 (1985); Cuyler v. Adams, 449 U.S. 433, 438-42, 101 S.Ct. 703, 706-09, 66 L.Ed.2d 641 (1981). Recognizing that violations of federal statutes are less likely than violations of the Constitution to lead to collateral relief, see United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), Reed tries to "constitutionalize" the IAD, but this maneuver works no better on the IAD than on Indiana's rules for establishing habitual-offender status. Reed contends: "[T]he IAD's mandatory language establishes a liberty interest protected by the due process clause of the Fifth and Fourteenth Amendments. The State of Indiana therefore violated Mr. Reed's due process guarantees and his IAD right when the State failed to try him within 120 days." Yet all the IAD does is prescribe procedures: hearing before transfer, trial within 120 days of arrival, and so on. Procedures for adjudication are neither "liberty" nor "property" for constitutional purposes. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Statutes and rules establish liberty or property interests only to the extent they prescribe substantive rules of decision. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460-63, 109 S.Ct. 1904, 1908-10, 104 L.Ed.2d 506 (1989); Wallace v. Robinson, 940 F.2d 243 (7th Cir.1991) (in banc); Doe v. Milwaukee County, 903 F.2d 499 (7th Cir.1990). When a state does not comply with a procedure specified in a statute or rule, it has violated that statute or rule, nothing more. Reed can succeed on this collateral attack, therefore, only by persuading us to reopen a statutory question decided adversely to him by the Supreme Court of Indiana.

Although § 2254(a) permits a court to issue a writ of habeas corpus to end custody that violates laws of the United States, the Supreme Court has yet to decide when such relief is appropriate. Indeed, the Court has yet to decide whether Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), which authorizes reexamination of subjects addressed by state courts, applies to claims based on federal statutes. Nothing in the text of § 2254 suggests a difference between the treatment of statutory and constitutional arguments, but the Court nonetheless has been chary of equating the two, lest collateral review become a rerun of the direct appeal. Sunal, Hill, and Timmreck say that statutory arguments ordinarily may not be raised collaterally. These cases were decided under 28 U.S.C. § 2255, which applies to federal prisoners, but the language of § 2254 and § 2255 is identical in all material respects, and the Court has concluded that the two are "identical in scope". Davis, 417 U.S. at 343, 94 S.Ct. at 2304.

Sunal and its successors hold that there is a difference between "custody in violation of the ... laws ... of the United States" and a violation of those laws by the state. "To show that 'the custody'--and not simply the custodian--violates the law, the prisoner must at a minimum trace the prejudicial effect of the error." White v. Henman, 977 F.2d 292, 295 (7th Cir.1992). Davis and Hill call on us to search for "exceptional circumstances" amounting to "a fundamental defect which inherently results in a complete miscarriage of justice". 417 U.S. at 346, 94 S.Ct. at 2305, quoting from 368 U.S. at 428, 429, 82 S.Ct. at 471, 472. Unfortunately, such formulas rarely settle concrete disputes. What is "exceptional" depends on your point of view. Some courts have concluded that the IAD does not create a "fundamental" right and that violations rarely if ever result in a "miscarriage of justice". E.g. Fasano v. Hall, 615 F.2d 555 (1st Cir.1980); Edwards v. United States, 564 F.2d 652 (2d Cir.1977); Kerr v. Finkbeiner, 757 F.2d 604 (4th Cir.1985); Metheny v. Hamby, 835 F.2d 672 (6th Cir.1987); Greathouse v. United States, 655 F.2d 1032 (10th Cir.1981); Seymore v. Alabama, 846 F.2d 1355 (11th Cir.1988). Others have reached a contrary conclusion, pointing to the IAD's remedy: dismissal with prejudice. Surely it is a miscarriage of justice to hold in prison a person who should have been released outright, these courts believe. United States v. Williams, 615 F.2d 585, 589-90 (3d Cir.1980); Gibson v. Klevenhagen, 777 F.2d 1056 (5th Cir.1985); Cody v. Morris, 623 F.2d 101 (9th Cir.1980). Controversy has developed within two of these circuits as judges debate which parts of the IAD are "fundamental" and which are not. E.g., Cooney v. Fulcomer, 886 F.2d 41, 44 (3d Cir.1988); Carlson v. Hong, 707 F.2d 367, 368 (9th Cir.1983). Our circuit has not taken a position on this subject. We have recognized that the IAD is a law of the United States without delineating the circumstances under which its violation leads to collateral relief. Webb v. Keohane, 804 F.2d 413 (7th Cir.1986); Esposito v. Mintz, 726 F.2d 371 (7th Cir.1984).

Verbal analysis of "fundamental defect" or "miscarriage of justice" or "exceptional circumstances" is unlikely to get us anywhere. The meaning of "custody in violation of the ... laws ... of the United States" must depend in large measure on why federal courts ever reexamine decisions reached by state courts. State courts may be hostile to federal norms, and as a practical matter the Supreme Court of the United States can review only a tiny fraction of all state decisions. Constitutional rights, insulated from popular control, are most likely to engender hostility; a majority may very much wish to do things otherwise. Statutory rights are more likely to enjoy majority support, with a correspondingly...