Gray v. Benson

• Decision Date: 31 October 1978
• Docket Number: Civ. A. No. 77-3041.
• Citation: 458 F. Supp. 1209
• Parties: James O. GRAY, Petitioner, v. C. L. BENSON, Warden, Respondent.
• Court: U.S. District Court — District of Kansas

458 F. Supp. 1209

James O. GRAY, Petitioner, v. C. L. BENSON, Warden, Respondent.

Civ. A. No. 77-3041.

United States District Court, D. Kansas.

October 31, 1978.

COPYRIGHT MATERIAL OMITTED

Howard L. Eisberg, Kansas City, Mo., for petitioner.

James P. Buchele, U. S. Atty., Roger M. Theis, Asst. U. S. Atty., Topeka, Kan., for respondent.

MEMORANDUM AND ORDER

O'CONNOR, District Judge.

Petitioner, an inmate at the United States Penitentiary, Leavenworth, Kansas, filed this action pursuant to 28 U.S.C. § 2255 asserting that the federal indictment, which resulted in his current sentence, should have been dismissed under Article IV(e) of the Interstate Agreement on Detainers, 18 U.S.C. Appendix (1978 Supp.) hereinafter referred to as the IAD.

The facts are fully set out in a prior Memorandum and Order of this court, Gray v. Benson, 443 F.Supp. 1284 (D.Kan.1978). Therefore, only the most significant factual findings are summarized here:

1. On March 19, 1976, the Government lodged a detainer against Gray while he was a Missouri prisoner in the state penitentiary.

2. Thereafter, Gray was removed from state custody pursuant to a federal writ of habeas corpus ad prosequendum, and appeared before this court for a Rule 5 hearing and arraignment on the federal charges.

3. On June 14, 1976, he was "returned to the original place of imprisonment" without being tried.

4. On August 12, 1976, petitioner was again brought before this court by writ of habeas corpus ad prosequendum where he entered a plea of guilty and was sentenced to the six-year term he is now serving.

In Gray v. Benson, supra, we held that the actions of the federal government in this case, specifically the lodging of a detainer followed by a request for temporary custody in the form of a writ of habeas corpus ad prosequendum, were sufficient to place in motion the operation of the Detainers Agreement. The necessary consequence of this holding was that the transfers between the Missouri prison and the District of Kansas were subject to the provisions of Article IV(e) of the Agreement. That section reads:

"(e) If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment . . ., such indictment . . . shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice."

We further found in our prior order that the facts of this case "unmistakably evidence a violation of Article IV(e) . . .."

One issue remains in this case. It is the government's contention that even if the court determines that Article IV(e) is applicable and has been violated, petitioner Gray waived any rights he may have had thereunder by failing to raise this claim prior to entering a plea of guilty. The court, finding this to be a difficult question and one of first impression in our circuit, requested that additional briefs be submitted by both parties. The private attorney representing petitioner, and the Assistant United States Attorney have diligently complied with that request. Having thoroughly considered the arguments and authorities presented by both sides, as well as other relevant judicial decisions rendered subsequent to our previous order, the court is prepared to rule on this final issue.

At the outset, it is noted that the question whether a right or privilege has been waived or forfeited is one of law and does not require an evidentiary hearing. See United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); United States v. Nolan, 571 F.2d 528, 533 (10th Cir. 1978).

A prefatory discussion of jurisdiction is necessary to respond to the government's contention that this court may not consider a petition for post-conviction relief which asserts a violation of the Interstate Agreement on Detainers. A federal court may entertain a prisoner's application for relief under 28 U.S.C. § 2255 "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . .." We have jurisdiction to entertain this application for the reason that petitioner is claiming his sentence was imposed in violation of federal law, specifically, the IAD. We are also inclined to exercise jurisdiction over this particular application for the additional reason that upon the filing of this action the fundamental or nonfundamental character of the federal right at issue had not been adequately determined.

The government properly cites Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), and Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1973), for the proposition that a claim may be raised by way of a § 2255 motion only if it is either constitutional or involves a fundamental defect. However, the Supreme Court expressly limited its holding in Hill by explaining that it was there concerned with the bare allegation that Rule 32(a) of the Federal Rules of Criminal Procedure was not complied with. The court pointed out that it did not decide the issue of whether a violation of the same rule might warrant federal habeas corpus review if aggravating circumstances, such as prejudice, were alleged as well. In the instant case this court was faced with the complicating circumstances that the claim was based upon a novel construction of a relatively new federal statute by another district court, and included allegations of prejudice and inadequacy of defense counsel. Thus, we took jurisdiction to determine if petitioner was entitled to relief under § 2255 on this unique claim.

It is not intended that our entertaining this particular application, in the wake of the stir caused by the initial decision in United States v. Mauro, 414 F.Supp. 358 (E.D.N.Y.1976), be interpreted as wholly discordant with recent cases which hold that a violation of the IAD may not be raised in a collateral proceeding. Edwards v. United States, 564 F.2d 652 (2nd Cir. 1977); see also United States v. Palmer, 574 F.2d 164 (3 Cir. 1978). In fact, the conclusion we reach in this matter is based upon reasoning consistent with that found in those decisions.

Having decided that jurisdiction should be exercised in the instant case, we proceed to determine the remaining substantive issue of whether a criminal defendant, after entering a voluntary guilty plea, is entitled to a dismissal of the indictment because of the government's violation of Article IV(e) of the IAD. We hold that this right under the Act does not survive a defendant's voluntary plea of guilty. Bambulas v. United States, No. 76-87-C3 (D.Kan., September 7, 1977), aff'd 571 F.2d 525 (10th Cir. 1978); United States v. Draper, No. 78-3040 (D.Kan., September 26, 1978).

In reaching this conclusion we initially had to ascertain the nature of the right protected by Article IV(e). The right this section is intended to secure is that of a prisoner to rehabilitation free of the interruptions occasioned by repeated transfers. United States v. Ford, 550 F.2d 732, 742 (2nd Cir. 1977), aff'd United States v. Mauro, ___ U.S. ___, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978).

In our prior order we held that the right to uninterrupted rehabilitation is waivable. It is a right that chiefly inures to the benefit of the prisoner and therefore may be waived by his actions. United States v. Ford, 550 F.2d at 742. To hold otherwise would foreclose any prisoner's request for pre-trial return to the sending jurisdiction for a parole hearing or other legitimate purpose since it would result in automatic dismissal of the indictment. Moreover, a contrary holding would be anomalous in light of the waivability of such fundamental, constitutional rights as the right to counsel or to a jury trial. United States v. Palmer, supra. Thus, we remain convinced, despite petitioner's vigorous statutory construction argument, that the right to unimpeded rehabilitation under the IAD is waivable.

There are basically two separate methods by which criminal defendants may yield or lose fundamental rights. One method is that of "waiver" which means that the accused has engaged in conduct which may be characterized as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). A separate concept is that of "procedural default" which involves the manner in which an accused may forfeit rights by not asserting them prior to or during trial.

The right of a prisoner to uninterrupted rehabilitation is purely statutory and certainly does not embody a fundamental constitutional right of the sort which can be waived only under the strict standard of Johnson v. Zerbst, supra.¹ Strawderman v. United States, 436 F.Supp. 503 (E.D.Va.1977); See also United States v. Williams, 544 F.2d 1215 (4th Cir. 1976) (right to two counsel under 18 U.S.C. § 3005). As pointed out in the government's brief, "almost without exception, the requirement of a knowing and intelligent waiver has been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973).

Clearly Article IV(e) of the IAD amounts to nothing more than a procedural rule, and the right it protects in no way affects the fairness and accuracy of the factfinding procedure. Nor does it preserve or affect other due process or trial rights. Rather, it involves an unrelated right to rehabilitation without interruption in connection with incarceration on a prior sentence. Thus, a claim under IV(e) can hardly be construed as jurisdictional, United States v. Palmer, supra. The fact that Congress has provided a stringent remedy for violation of the rule does not alter the procedural nature or nonfundamental basis of the rule itself.

Petitioner's challenge to his plea might more appropriately be...