Diggs v. Owens

• Decision Date: 06 November 1987
• Docket Number: No. 86-5855,86-5855
• Citation: 833 F.2d 439
• Parties: Charles DIGGS, Appellant, v. David OWENS, Superintendent and John Daughn, Warden.
• Court: U.S. Court of Appeals — Third Circuit

Page 439

833 F.2d 439

Charles DIGGS, Appellant, v. David OWENS, Superintendent and John Daughn, Warden.

No. 86-5855.

United States Court of Appeals Third Circuit.

Argued Sept. 29, 1987.

Decided Nov. 6, 1987.

Thomas M. Blewitt (argued), Asst. Federal Public Defender, Scranton, Pa., Melinda C. Ghilardi, Asst. Federal Public Defender, Harrisburg, Pa., George E. Schumacher, Federal Public Defender, Pittsburgh, Pa., for appellant.

Richard A. Lewis, Dist. Atty., Yvonne A. Okonieski (argued), Deputy Dist. Atty., Harrisburg, Pa., for appellees.

Before SEITZ, GREENBERG and ROSENN, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

Charles Diggs appeals from the district court's denial of his petition for a writ of habeas corpus. He contends that: (1) he was improperly tried for first degree murder and kidnapping in the Court of Common Pleas for Dauphin County, Pennsylvania, in violation of Articles IV(c) and IV(e) of the Interstate Agreement on Detainers Act (IADA); (2) certain rulings of the trial judge in the criminal action denied him due process and equal protection of the law, and infringed his right to compulsory process; and (3) his attorneys, at trial and on appeal, in the criminal action were constitutionally ineffective. The court has jurisdiction under 28 U.S.C. Sec. 1291.

I. Facts

In 1975, Diggs was indicted for kidnapping and first degree murder in Dauphin County but he remained at large until May 17, 1976 when federal agents arrested him in Philadelphia on unrelated charges. When the Dauphin County District Attorney learned of Diggs' arrest he forwarded capiases for the charges to the appropriate state authorities in Philadelphia and to the United States Marshal for the Eastern District of Pennsylvania. In July 1976, while he was still a federal prisoner, Diggs was convicted of bank robbery in the United States District Court in Trenton, New Jersey, and on August 3, 1976 he pleaded guilty to bank robbery in the United States District Court for the Eastern District of Pennsylvania in Philadelphia. On or about August 19, 1976, Diggs was transferred to state custody for disposition of charges in Philadelphia. On September 9, 1976, he was sentenced on the Eastern District bank robbery charges. He then was tried in the state court in Philadelphia in October and December 1976 but both cases resulted in mistrials. Subsequently, on December 28, 1976, pursuant to writs of habeas corpus ad prosequendum served on state and federal authorities in Philadelphia, Dauphin County acquired custody of Diggs for the first time.

After his arraignment in Dauphin County on the kidnapping and murder charges, Diggs was returned to Philadelphia for a third trial where he remained in state custody until the United States Marshal, pursuant to an order of a federal district judge, entered without the knowledge or consent of the prosecuting authorities in Dauphin County, removed him from state custody and transferred him to the Metropolitan Correctional Center in New York City. After a brief stay at the Center, the Marshal returned Diggs to federal custody in Pennsylvania. When the Dauphin County District Attorney learned that Diggs had been removed from state custody, he secured another writ of habeas corpus ad prosequendum so that Diggs would be available for the scheduled trial date of February 14, 1977. The writ was served on the federal authorities who honored it and returned him to Dauphin County where he remained until the completion of his trial. The trial, however, did not start until April 18, 1977 due to a defense requested postponement and disposition of pretrial motions.

At the trial a prosecution witness, Jack Singer, testified that he had been a party to a conversation among Diggs, Martha McIver and Kenny Shank in which Diggs admitted his role in the murder. Diggs' attorney, who was surprised by this testimony, obtained a continuance to enable him to locate McIver who was under subpoena and Shank who was not. McIver appeared at the trial and contradicted Singer's testimony but Diggs' attorney asked for an additional continuance so that Shank, who was incarcerated, apparently in the Philadelphia area, could be brought to court. This request, however, was denied and thus the trial was completed without him.

After the completion of the prosecution's case, Diggs moved for a mistrial arguing that Dauphin County detectives had coerced his brother into silence depriving him of exculpatory testimony. In support of this motion Diggs produced a letter, allegedly written by his brother after an encounter with several Dauphin County detectives, stating that the detectives had warned his brother that if he testified he would be prosecuted for a robbery. Diggs' brother was present at the trial but when called by Diggs as a witness he invoked his Fifth Amendment privilege against self-incrimination and refused to testify on advice of his attorney who was also present. The judge upheld the claim of privilege and denied a request by Diggs' attorney for permission to ask the witness whether he was asserting his privilege in response to official intimidation. Diggs was convicted and received a life sentence for first degree murder and a consecutive ten to 20 year term for kidnapping. His motions for arrest of judgment and a new trial were denied in a reported opinion. Commonwealth v. Diggs, 100 Dauph. 318 (1978).

Diggs, represented by a retained attorney, appealed to the Pennsylvania Superior Court. Diggs alleges that he instructed this attorney to raise the alleged ineffectiveness of trial counsel as an issue but the attorney did not do so. While Diggs himself filed a brief dealing with this issue, the Superior Court nevertheless affirmed the convictions and sentences. Commonwealth v. Diggs, 273 Pa.Super. 121, 416 A.2d 1119 (1979). Thereafter, Diggs obtained a new attorney and instructed him to argue the ineffectiveness of both trial counsel and his first appellate counsel in a petition for review before the Pennsylvania Supreme Court. Even though this second appellate counsel failed to argue the ineffectiveness issue, Diggs' petition was granted and a third appellate counsel was appointed to argue his appeal. On June 17, 1982, however, the Pennsylvania Supreme Court dismissed the appeal as improvidently granted. 498 Pa. 360, 446 A.2d 600 (1982). This habeas corpus action followed.

II.

Interstate Agreement on Detainers Act (IADA)

The IADA, to which Pennsylvania and the United States are parties, establishes procedures by which a member state, including the United States, may procure a prisoner from another member jurisdiction for trial. ¹ The IADA may be triggered when the state in which the trial is to be had, the receiving state, lodges a "detainer" with the state in which a prisoner is incarcerated, the sending state. The prisoner is transferred when the receiving state presents a "written request for temporary custody" to the appropriate authorities in the sending state. ² Once the prisoner arrives in the receiving state, Article IV(c) of the IADA requires that his trial start within 120 days. The IADA further provides in Article IV(e) that if the prisoner is returned to the sending state before trial, the charges against him must be dismissed. Diggs contends that these speedy trial and anti-shuttling provisions were violated in his prosecution.

Diggs relies largely on United States v. Mauro, 436 U.S. 340, 349, 98 S.Ct. 1834, 1841-42, 56 L.Ed.2d 329 (1978), in which the Supreme Court held that a writ of habeas corpus ad prosequendum issued by a federal district court is not a "detainer" for purposes of the IADA although, when preceded by a proper detainer, the writ can serve as a "written request for temporary custody" which, if honored, will trigger the speedy trial and anti-shuttling provisions of the IADA. Building his argument on Mauro, Diggs contends that the Dauphin County capiases were detainers under the IADA so that his transfer to that county pursuant to the writ of habeas corpus ad prosequendum triggered the IADA. Thus, in his view, his return to federal custody after his arrival in Dauphin County required the dismissal of the kidnapping and murder indictments. See Casper v. Ryan, 822 F.2d 1283, 1289 n. 9 (3rd Cir.1987). He further contends that he is entitled to relief because his trial did not commence within 120 days of his transfer to Dauphin County.

Diggs' argument, however, faces one major obstacle; namely that in United States v. Williams, 615 F.2d 585, 592-93 (3rd Cir.1980), we ruled Mauro is not retroactive. See also Brown v. Mitchell, 598 F.2d 835, 837-39 (4th Cir.1979), cert. denied, 449 U.S. 1123, 101 S.Ct. 939, 67 L.Ed.2d 109 (1981). Diggs seeks to circumvent Williams by urging that we abandon that decision on the basis of Griffith v. Kentucky, --- U.S. ----, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). In Griffith the Supreme Court announced that "a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a 'clear break' with the past." --- U.S. at ----, 107 S.Ct. at 716. Diggs reasons that since his conviction was pending on direct review when Mauro was decided in 1978, that case should now be given retroactive effect in this habeas corpus case.

Griffith, however, was concerned with the retroactive application of the constraints on a prosecutor in jury selection established in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986), and thus dealt with constitutionally mandated procedures. The fact that Griffith involves constitutional law is demonstrated by the Court's indication that it was reviewing the three pronged analysis of claims for retroactivity of "new constitutional rules of criminal procedure" adopted 21 years earlier in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). See Griffith,...