Gray v. Benson

• Decision Date: 13 January 1978
• Docket Number: Civ. A. No. 77-3041.
• Citation: 443 F. Supp. 1284
• Court: U.S. District Court — District of Kansas
• Parties: James O. GRAY, Petitioner, v. C. L. BENSON, Warden, Respondent.

443 F. Supp. 1284

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

Civ. A. No. 77-3041.

United States District Court, D. Kansas.

January 13, 1978.

Gerald N. Jeserich, of Carson, Fields & Boal, Kansas City, Kan., Howard L. Eisberg, Kansas City, Mo., for petitioner.

James P. Buchele, U. S. Atty., Mary K. Briscoe, Asst. U. S. Atty., Topeka, Kan., for respondent.

MEMORANDUM AND ORDER

O'CONNOR, District Judge.

Petitioner, James O. Gray, brings this action pursuant to 28 U.S.C. § 2255 challenging the validity of his federal conviction and six-year sentence as violative of the Interstate Agreement on Detainers Act, 18 U.S.C.Appendix (1977 Supp.). Petitioner claims that Articles III and IV of the Agreement were violated by the United States. On this basis he asserts that the federal indictment and his conviction and sentence based thereon are void and that he is entitled to be free of his federal confinement.

The following facts are undisputed. While petitioner was in state custody by virtue of an unrelated conviction and sentence under Missouri state law, a complaint was filed against him in the District of Kansas, charging violation of 18 U.S.C. § 2314 and § 2; a warrant issued on January 27, 1976.

On March 19, 1976, a detainer against petitioner was lodged with the Warden of the Missouri State Prison by the United states Marshal for the Western District of Missouri on the basis of the outstanding federal complaint and warrant. Petitioner was given a copy of the detainer and warrant but was neither informed nor aware of his rights under the Agreement.

Petitioner alleges he subsequently wrote a letter to the United States Attorney requesting that disposition be made of the detainer. The letter was received by the United States Attorney in Kansas City, Kansas, the prosecuting official, on April 27, 1976.

The next day, April 28, 1976, the Assistant United States Attorney petitioned for and was granted a writ of habeas corpus ad prosequendum, 28 U.S.C. § 2241(c)(5). The writ was issued by the undersigned judge, and directed the United States Marshal to produce petitioner for prosecution and trial before this court on May 6, 1976. Pursuant to this writ, petitioner was removed from state custody and brought before this court for a Rule 5 hearing and arraignment. He was indicted on May 27, 1976. Petitioner remained in federal custody until June 14, 1976, at which time he was returned by the United States Marshal to the Missouri State Prison. On this date petitioner moved to dismiss the federal indictment on the basis of denial of his right to a speedy trial.

Petitioner was held in state custody at the Missouri prison until August 12, 1976, when his removal to the District of Kansas was again accomplished by writ of habeas corpus ad prosequendum. Petitioner remained in federal custody until September 14, 1976.

Meanwhile, on August 20, 1976, pursuant to advice from his former attorney, petitioner withdrew his speedy trial motion and entered a plea of guilty to one count of the indictment. On September 7, 1976, petitioner was sentenced to a consecutive term of six (6) years.

On September 14, 1976, petitioner was again returned to Missouri where he completed service of his state sentence. On December 9, 1976, his federal sentence commenced and it is currently being served at the United States Penitentiary in Leavenworth, Kansas.

Petitioner filed the present motion to vacate sentence shortly after he became aware of the remedial provisions of the Interstate Agreement on Detainers.

Both the State of Missouri and the United States are signatories to the Agreement. Rev.Mo.Stat., §§ 222.160-222.220; 18 U.S.C. App. (1977 Supp.). In seeking to void his federal conviction and six-year consecutive sentence petitioner relies on Sections III and IV of the Agreement. Section III pertinently provides:

"(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty 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 a final disposition . . .. The request of the prisoner shall be accompanied by a certificate . . . stating specific information."

Petitioner alleges that he wrote a letter to the U. S. Attorney requesting disposition of the detainer in this action. However, it is clear from the letter and petitioner's allegations that his actions were not sufficient to trigger Article III of the Act. For example, he did not cause the request to be delivered to the appropriate court and he did not include the necessary certificate. Thus, the remedy provided by Section III(d) cannot be claimed under these facts.

In the alternative, petitioner relies on Section IV which provides:

"(a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available . . . upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated . . .."

. . . . .

"(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."

Petitioner Gray contends that the Government triggered Section IV of the Agreement by issuing a writ of habeas corpus ad prosequendum after having filed a detainer with his state custodian. Respondent counters that the Agreement does not apply to transfers effectuated by writs of habeas corpus ad prosequendum under 28 U.S.C. § 2241(c)(5). Respondent also argues that, even assuming the provisions of the Agreement were applicable and violated, petitioner has waived any rights he may have had thereunder in that he failed to raise his present contention before entering a plea of guilty.

Obviously, the first question to be answered when a remedy is claimed under a particular statute is whether or not the statute applies. As can be noted from the above-quoted portions, the Interstate Agreement on Detainers clearly sets forth conditions precedent to its applicability.

The first prerequisite is that a detainer must have been lodged against the prisoner seeking relief under the Act. This is evident from the statutory language that the appropriate officer is entitled to have made available "a prisoner against whom he has lodged a detainer."

In some of the cases relied upon by petitioner the issuance of a writ of habeas corpus ad prosequendum is the sole governmental action effectuating the transportation of a state prisoner to a federal jurisdiction for trial. In our case the Government lodged a detainer prior to and in addition to issuing a writ of habeas corpus. Under the first situation, it is the view of this court that the Detainer's Act does not apply, for the simple reason that no detainer has been lodged. Petitioner presents the more substantial argument that in this case the Government, by lodging a regular detainer and then commanding his appearance by a federal writ of habeas corpus invoked Article IV(a) of the Agreement. We find this conclusion inescapable by the very terms of that provision. Where a detainer has been lodged and a written request for temporary custody is thereafter made, be it by writ of habeas corpus or other means, Article IV of the Agreement has been triggered.

In reaching this conclusion we have attempted to review thoroughly the current case law in this area. Several opinions have been rendered recently on motions to dismiss indictments or to vacate sentences based upon the remedial provisions of the Agreement. Out of those decisions we discern two main propositions which have been variously rejected or accepted by the deciding courts. The case which seems to have sparked a number of claims under the Agreement, United States v. Mauro, D.C., 414 F.Supp. 358 (1976), laid down both these rules. In that case the Eastern District of New York held that (1) whenever the provisions of the Agreement are available for securing the presence of a prisoner for a federal prosecution, the Act is the exclusive means for doing so; and (2) the writ of habeas corpus ad prosequendum, 28 U.S.C. § 2241(c)(5), constitutes a detainer within the meaning of the Interstate Agreement on Detainers. At petitioner's urging we have considered these principles as a basis for his claim to relief, and at respondent's insistence we have considered the cases which reject these notions.

We disagree with both of the propositions stated in Mauro; yet we conclude that the Agreement was activated under the facts of the instant case. For this reason, we find it necessary to fully disclose our reasoning in rejecting Mauro.

The earliest pronouncement we have discovered of the proposition that the Agreement is the exclusive means of transferring a state prisoner is in U. S. ex rel. Esola v. Groomes, 520 F.2d 830 (3rd Cir. 1975). Since then that opinion has been cited and the principle applied in United States v. Mauro, 544 F.2d 588 (2nd Cir. 1976), U. S. App. pending; United States v. Randall, 429 F.Supp. 18 (D.D.C.1977); United States v. Kenaan, 422 F.Supp. 226 (D.Mass.1976); and United States v. Sorrell, 413 F.Supp. 138 (E.D.Pa.1976).

We note that in each of the above cases the federal government is the ...