Birdwell v. Skeen

• Decision Date: 03 June 1991
• Docket Number: Civ. A. No. TY-90-186-CA.
• Citation: 765 F. Supp. 1270
• Parties: David Andrew BIRDWELL, Applicant, v. Jack SKEEN, et al., Defendants-Respondents.
• Court: U.S. District Court — Eastern District of Texas

765 F. Supp. 1270

David Andrew BIRDWELL, Applicant, v. Jack SKEEN, et al., Defendants-Respondents.

Civ. A. No. TY-90-186-CA.

United States District Court, E.D. Texas, Tyler Division.

June 3, 1991.

David Andrew Birdwell, pro se.

Peter H. Barrett, Biloxi, Miss., Steven Michael Bozarth, Atty. General's Office, Austin, Tex., Connie R. DeArmond, Asst. U.S. Atty., Topeka, Kan., for defendants-respondents.

MEMORANDUM OPINION

JUSTICE, District Judge.

Before the court for resolution is an application for the writ of habeas corpus filed by David Andrew Birdwell, pursuant to 28 U.S.C. § 2254. In his application, Birdwell attacks the validity of his Texas convictions for aggravated bank robbery and aggravated kidnapping.

Statement of Facts

In 1985, the applicant, Birdwell, pled guilty to federal bank robbery charges; and in 1986, he was convicted in Smith County, Texas, of aggravated kidnapping and aggravated bank robbery. All three of these convictions stem from the June 25, 1985, armed robbery of a Smith County bank. To facilitate this bank robbery, the applicant kidnapped a woman, locked her in the trunk of her car, used her car to drive to the bank, and then abandoned the car at a time when the woman was still locked in the trunk.

On July 25, 1985, applicant was arrested by federal authorities in Mississippi on federal bank robbery charges. Almost immediately, plea negotiations began involving applicant, the federal authorities, and the Smith County Criminal District Attorney's office. Two days after applicant's arrest in Mississippi, the Honorable Jack Skeen, Jr., Criminal District Attorney of Smith County, sent a letter offering not to prosecute applicant for aggravated robbery, if he pled guilty to the federal bank robbery charge pending against him, and also pled guilty to the pendant aggravated kidnapping charge in state court.

In the fall of 1985, state indictments were returned against applicant in Texas, for aggravated bank robbery and aggravated kidnapping. On December 5, 1985, applicant appeared before the United States District Court for the Southern District of Mississippi in accordance with Federal Rule of Criminal Procedure 20. The court accepted a plea agreement between applicant and the United States, wherein applicant agreed to plead guilty to the federal charge of bank robbery. Attached to the plea agreement, and incorporated therein, was the letter from Jack Skeen, Jr., to applicant and his attorney. From the transcript of the proceedings, it is clear that this letter was a strong inducement to applicant to enter into the plea agreement, United States v. Applicant, 887 F.2d 643, 646 (5th Cir.1989)¹, and that applicant thought that its incorporation into the federal plea agreement had the effect of binding the State of Texas to the terms set out in the letter. After the court accepted applicant's guilty plea, it sentenced him to a twenty-year prison sentence.

On April 16, 1986, Jack Skeen, as Criminal District Attorney of Smith County, lodged a detainer against applicant with the Federal Prison authorities in Leavenworth, Kansas, where applicant was then incarcerated. On May 19, 1986, the Criminal District Attorney's office received a request from the applicant for a final disposition of the charges pending against him in Texas. This request was in compliance with the Interstate Agreement on Detainers ("IAD"), to which Texas and the United States are both signatories.

The IAD sets out procedures whereby prisoners incarcerated under the authority of one signatory jurisdiction who have a detainer lodged against them for charges in another signatory jurisdiction may demand that the charges against them be prosecuted within 180 days. If the charges are not prosecuted within the 180 day time limit, they must be dismissed. See Texas Crim.Proc.Code art. 51.14.

On August 6, 1986, applicant was brought to Smith County, for disposition of the outstanding indictments against him. His attorney filed a motion to dismiss the indictments under the Texas Speedy Trial Act. The Smith County District Court originally set the motion down for a hearing on August 22, 1986.

At that hearing, the prosecutor announced that he considered applicant's motion for dismissal to be a breach of his agreement to plead guilty to the charge of aggravated kidnapping, and added that if applicant persisted with his motion, the prosecution would consider the plea agreement to no longer be in effect. The applicant's attorney announced that he was ready to proceed on the motion to dismiss, but did not respond directly to the prosecutor's allegation that applicant's motion constituted a violation of the plea agreement.

The prosecution then requested a one week continuance because its principal investigator on the case had suffered an injury. The trial judge granted the prosecution's request, and the hearing was held three weeks later on September 12, 1986. Applicant's motion was overruled on the same day that the hearing was held.

On November 11, 1986, applicant filed a motion, to the effect that the 180-day time period in which he must be tried under the IAD would lapse on November 16, 1986, and demanding that his case be scheduled on November 17, 1986, in place of the trial of another individual who was not in pretrial detention. No response was made to this motion.

On November 25, 1990, the applicant filed a motion to dismiss his indictment, because he had not been tried within the 180 day time period prescribed by the IAD. On December 2, 1986, applicant came before the District Court of Smith County for trial. Prior to the start of the trial, applicant's counsel urged consideration of the November 25 motion to dismiss. The court overruled applicant's motion, and stated: "The Court will state into the record that this is the first available trial date the court has been able to provide and overrules the motion."

Applicant was then tried before the court, and on December 3, 1986, was sentenced to two seventy-five year sentences, to run consecutively, and to run consecutive to his federal sentence.

Application for Writ of Habeas Corpus under 28 U.S.C. § 2254

In his application for writ of habeas corpus under 28 U.S.C. § 2254, applicant alleges that the state violated the Interstate Agreement on Detainers by not trying him within 180 days of when the Criminal District Attorney received notification of applicant's request for disposition of his state charges.

Applicant properly exhausted his state remedies, as required by 28 U.S.C. § 2254(b). He directly appealed his conviction to the Twelfth Court of Appeals of the State of Texas, sitting in Tyler, and thereafter sought discretionary review of that court's denial of relief with the Texas Court of Criminal Appeals. The Court of Criminal Appeals declined to hear his appeal.

In his direct appeal, applicant challenged his conviction under the IAD, the ground for which he claims relief in his application for the writ of habeas corpus. Two recent decisions by the U.S. Court of Appeals for the Fifth Circuit have held that if an applicant for federal writ of habeas corpus has presented his claims for relief to the Texas Court of Appeals on direct review, and to the Texas Court of Criminal Appeals in a petition for discretionary review, the applicant has fully exhausted his state remedies. Myers v. Collins, 919 F.2d 1074 (5th Cir.1990); Burnett v. Collins, No. 90-4617 (5th Cir. Nov. 30, 1990). Therefore, applicant's claim is ripe for review on its merits.

Article III(a) of the IAD, Tex.Crim.Proc. Code Art. 51.14, states that a prisoner

shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for final disposition to be made of the indictment, information, or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

The files of the Smith County District Court regarding applicant's state convictions reflect that requests for disposition of his indictment and a notice of his place of imprisonment were signed by applicant and the warden of the United States Penitentiary at Leavenworth, Kansas, respectively, on May 8, 1985, and that copies of these documents accompanied a May 14, 1985, letter from the Administrative Systems Supervisor of the federal penitentiary to Criminal District Attorney Jack Skeen. Copies were also sent to the clerk of the state district court in Smith County. Copies of return receipts indicating that the Smith County District Clerk's Office, as well as the Smith County Criminal District Attorney's Office, received these documents on May 19, 1985, were attached to applicant's objections to the Magistrate's Report regarding his application for the writ of habeas corpus, which was filed July 30, 1990.

The 180 day period referred to in Article III(a) of the IAD begins to run when a prisoner's request for disposition of pending charges is delivered to the prosecuting authority and to the court of the jurisdiction where the detainer is lodged. Gibson v. Klevenhagen, 777 F.2d 1056, 1058 (5th Cir.1985); Ravenscraft v. State, 753 S.W.2d 741, 742 (Tex.Ct.App. — Austin, 1988).² Therefore, under the IAD, Texas authorities had 180 days from May 19, 1985, in which to bring applicant to trial, excluding any periods for which the Texas state court had issued a continuance for good cause in open court.

Applicant was brought to trial on December 2, 1986, 197 days after the IAD trial period began. However, if the postponement of the hearing on applicant's motion to dismiss from August 22 to September 12 was the result of a reasonable and necessary continuance granted in open court, then the 21 days between August 22 and September 12 may be...