Harvey v. United States, 85-0621-CV-W-1.
| Decision Date | 29 August 1985 |
| Docket Number | No. 85-0621-CV-W-1.,85-0621-CV-W-1. |
| Citation | 615 F. Supp. 1046 |
| Parties | Walter L. HARVEY, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Western District of Missouri |
Walter L. Harvey, pro se.
William L. Webster, Atty. Gen., George Cox, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
MEMORANDUM AND ORDERS
On June 7, 1985 this Court entered an order directing the Department of Corrections of Missouri to state on or before July 1, 1985 the circumstances under which it obtained custody of the petitioner and to attach copies of any documents pertaining to the designation of the petitioner's place of confinement. That order pointed out that petitioner's application for habeas corpus alleged that he had been "illegally transferred out of federal custody and into the custody of the Missouri Department of Corrections" and that the Missouri Department of Corrections was therefore "without jurisdiction and authority to retain custody" of the petitioner. In order to be of assistance, this Court directed attention to 18 U.S.C. § 4082 which authorizes the Attorney General of the United States to designate the place of confinement where a sentence imposed by a federal court shall be served.
On June 28, 1985 an Assistant Attorney General of the State of Missouri, as attorney for the Missouri Department of Corrections and Human Resources, filed a response to this Court's June 7, 1985 Order which simply stated that on June 25, 1985, the Supreme Court of Missouri reversed a death sentence imposed after a jury verdict of guilty rendered in the Circuit Court of Boone County, Missouri. The Assistant Attorney General added that he had been in contact with the St. Louis County Prosecuting Attorney who had advised him that the petitioner would soon be returned to the custody of St. Louis County for re-trial. For reasons neither stated nor apparent, the Assistant Attorney General stated that the Supreme Court of Missouri's reversal of petitioner's State court conviction somehow rendered this case moot.
On July 3, 1985 petitioner filed a traverse to the response filed by the Assistant Attorney General which accurately pointed out that the action of the Supreme Court of Missouri in connection with petitioner's State court conviction had no effect on the question presented by petitioner's application for federal habeas corpus. Petitioner again alleged that he was not being held in State custody in compliance with 18 U.S.C. § 4082. Petitioner's traverse prayed that he be returned forthwith to the custody of the Attorney General of the United States. Petitioner also filed a request for a protective order which would prohibit petitioner's placement in one of Missouri's County jails.
On July 9, 1985 this Court entered its memorandum which expressly found that the June 28, 1985 response filed by the Assistant Attorney General did not comply with this Court's June 7, 1985 Order and entered a second order directing compliance with its initial order on or before July 19, 1985.
Thereafter, on July 19, 1985 the Assistant Attorney General filed a further response which stated in substance that the Records Office at the Missouri State Penitentiary has informed counsel that no documents existed in petitioner's file that might relate to how the Missouri Department of Corrections may have obtained custody of the petitioner pursuant to any federal statute. That response further stated that the "United States Attorney would appear to be the appropriate authority to represent the federal prison authorities in this area." How or why the federal prison authorities were to be considered as parties in a habeas corpus proceeding that presented the question of whether petitioner was being legally held by the State was not explained. The most recent filed response also advised this Court that the petitioner had most recently been removed from the Missouri State Penitentiary and is presently being held in the St. Louis County Jail, Clayton, Missouri, as a pretrial detainee. The Assistant Attorney General then stated that his office does not represent St. Louis County, is not involved in the re-trial of the petitioner, and that the appropriate party in this instance would be the St. Louis County Prosecuting Attorney. The response did not attempt to state why or how the St. Louis Prosecuting Attorney could be considered as an "appropriate party" in this habeas corpus proceeding.
Because of the Assistant Attorney General's failure to comply with two orders of this Court, his suggestion that this Court make inquiry of persons other than the persons alleged to have custody of the person detained, and, most important, the advice that petitioner had been transferred from the Missouri Penitentiary at Jefferson City to the St. Louis County Jail, the Court requested the Chief Probation Officer of this Court to obtain accurate information in regard to the manner in which the Missouri Department of Corrections obtained custody of the petitioner as alleged in petitioner's application for federal habeas corpus was filed.
A single telephone call by the Chief Probation Officer led to the production of the following documents: Warden O'Brien's August 9, 1984 letter to Superintendent Wyrick of the Missouri Department of Corrections at Jefferson City, attached hereto as Exhibit A; Warden Armontrout's August 22, 1984 letter to Warden O'Brien, attached as Exhibit B; a copy of the Section 4082 order transferring petitioner from the United States Penitentiary at Leavenworth, Kansas to the United States Penitentiary at Marion, Illinois, attached hereto as Exhibit C; a copy of the Section 4082 transfer order from the United States Penitentiary at Marion, Illinois to the Missouri Department of Corrections for the concurrent service and execution of the State court sentence imposed by the Circuit Court of Boone County, Missouri before its recent reversal by the Supreme Court of Missouri, attached as Exhibit D; and a copy of a memorandum forwarded to the federal authority by H.F. Lauf, Records Officer of the Missouri Department of Corrections, advising that the petitioner had been received by the Missouri State Penitentiary on March 19, 1985 attached as Exhibit E.
The Court has been advised that the first knowledge that the Federal Bureau of Prisons had of the transfer of the petitioner from the Missouri penitentiary at Jefferson City to the St. Louis County Jail was obtained as a result of the inquiry made by the Chief Probation Officer of this Court. We attach hereto as Exhibit F a copy of a Section 4082 order designating the St. Louis County Jail for the service of Mr. Harvey's federal sentence. Needless to say, the Federal Bureau of Prisons was unhappy to learn, solely as a result of this Court's independent inquiry, that petitioner's State court conviction has been reversed by the Supreme Court of Missouri and that the petitioner had been moved to the St. Louis County Jail for re-trial without notice to the federal authorities. Warden O'Brien's August 9, 1984 letter (Exhibit A) made clear that "It is essential that we be notified concerning any change in his petitioner's status."
The independent research required by the inadequate responses made by the Assistant Attorney General of the State of Missouri required this Court to also ascertain that petitioner was convicted in the United States District Court for the Eastern District of Missouri of numerous federal crimes for which he was given an aggregate term of 120 years imprisonment. The Judgment and Commitment Order entered by the United States District Court for the Eastern District of Missouri on June 6, 1983 was affirmed by the Court of Appeals for the Eighth Circuit in United States v. Harvey, 756 F.2d 636 (8th Cir.1985).
Section 4082 of Title 18 of the United States Code in its pertinent part provides that:
Genovese v. Ciccone, 331 F.Supp. 1117, 1118 (W.D.Mo.1971), appropriately stated that "under the provisions of Section 4082, Title 18, United States Code, the place of a federal prisoner's confinement is vested in the discretion of the Attorney General or his authorized delegate." That case added that "in the absence of exceptional circumstances or the denial of a federal constitutional or statutory right, the exercise of that discretion will not be reviewed in the Courts."
As a result of this Court's independent research, it is obvious that the St. Louis County Jail has been appropriately designated pursuant to the authority conferred by Section 4082 as the place of confinement where petitioner's federal sentence shall be served. An order will therefore be entered denying the petition for habeas corpus.
A further order, however, will be entered requiring the Assistant Attorney General of the State of Missouri to advise this Court as to whether Warden O'Brien's August 9, 1984 letter to Superintendent Wyrick, attached as Exhibit A, and whether Warden Armontrout's August 22, 1984 response to Warden O'Brien's letter, attached hereto as Exhibit B, were in petitioner's file as maintained by the Missouri Department of Corrections. That response shall further state what effort was made, if any, to obtain the information from the Federal Bureau of Prisons that this Court was...
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Harvey v. Mo. Dep't of Corr., CASE NO. 13-3188-SAC
...of Missouri an application for habeas relief under 28 U.S.C. § 2241, challenging his transfer to the MODOC. See Harvey v. United States, 615 F.Supp. 1046 (W.D.Mo. 1985). The court denied relief, stating that "it is obvious that the [MODOC] has been appropriately designated pursuant to the a......
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Harvey v. Mo. Dep't of Corr.
...to confine him because his transfer from federal to state custody did not comply with 18 U.S.C. § 4082. See Harvey v. United States, 615 F.Supp. 1046, 1048 (W.D.Mo. 1985). In his subsequent traverse, petitioner sought his return to BOP custody and a protective order to prohibit his placemen......
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Harvey v. Mo. Dep't of Corr.
...of the Attorney General or his authorized delegate," and that discretion had been appropriately exercised. Harvey v. United States, 615 F. Supp. 1046, 1048 (W.D. Mo. 1985). Also in 1985, however, the Missouri Supreme Court vacated Harvey's death sentence and remanded the case for retrial. H......