Kane v. State of Virginia

Citation419 F.2d 1369
Decision Date19 January 1970
Docket NumberNo. 13018,13240 and 13427.,13018
PartiesMichael Glen KANE, Appellant, v. STATE OF VIRGINIA, Appellee. Dale H. SUTHERLAND, Appellant, v. STATE OF MARYLAND et al., Appellees. Clifford E. PERRY, Appellant, v. SIXTH JUDICIAL CIRCUIT OF MARYLAND, MONTGOMERY COUNTY, Maryland and Circuit Court for Pinellas County, Florida, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

James P. Jones, Abingdon, Va. (court-assigned counsel) (Penn, Stuart & Miller, Abingdon, Va., on brief), for appellants.

W. Luke Witt, Asst. Atty. Gen. of Virginia, for appellee State of Virginia.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. of Maryland (Francis B. Burch, Atty. Gen. of Maryland, on brief), for appellees State of Maryland, Sixth Judicial Circuit of Maryland and others.

Before WINTER and BUTZNER, Circuit Judges, and WIDENER, District Judge.

BUTZNER, Circuit Judge:

In these consolidated appeals, federal and Virginia prisoners, claiming denial of the right to speedy trials, seek writs of habeas corpus to bar prosecutions evidenced by detainers lodged against them by other states. We hold that after a prisoner has exhausted available state remedies, he may be afforded this relief.

I.

Michael G. Kane, a prisoner serving a five-year sentence at the federal penitentiary, in Marion, Illinois, alleges the following facts: On October 13, 1966, a police officer of the City of Newport News, Virginia, filed a detainer at the federal prison charging Kane with grand larceny by check. Between April and December 1967, Kane wrote the officer three times requesting a speedy trial and withdrawal of the detainer. He received no reply.

Kane then turned to the Virginia courts for relief. On April 2, 1968, he filed a "Motion for a Quick and Speedy Trial" in the state trial court asking that he be returned immediately to Newport News for trial. He received no answer to this motion. On June 28, 1968, he petitioned the Supreme Court of Appeals of Virginia for dismissal of the charge against him and removal of the detainer on the ground that he had been denied a speedy trial. On October 16, 1968, the Court summarily denied relief because Kane's motion did not present a justiciable issue.

Meanwhile, on September 17, 1968, Kane wrote to the Governor of Virginia. He related his efforts to obtain a speedy trial and stated that his detainer disqualified him from participation in a study release program. The letter was forwarded to the Newport News prosecutor, who, on September 30, 1968, wrote Kane stating that he would not authorize withdrawal of the detainer and that "it is the intention of the authorities of this city to prosecute you on the charge as soon as you are available to be taken into our custody free of federal charges."

Kane then filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Virginia, which denied his application on October 30, 1968.

Dale H. Sutherland is a federal prisoner in the District of Columbia Penitentiary at Lorton, Virginia. Early in 1966, officers of Anne Arundel County, Maryland, filed a detainer against him based on an indictment for storehouse breaking. Since 1966, Sutherland has mailed various papers to the Circuit Court of Anne Arundel County including requests for discovery, a speedy trial, and a writ of habeas corpus to obtain dismissal of the charges. In June 1966, the judge informed Sutherland that these motions and petitions cannot be heard until he is returned to Anne Arundel County.

Sutherland then sought dismissal of the charges in the United States District Courts for the District of Maryland and the Eastern District of Virginia. Both denied relief, and Sutherland has appealed from the judgment entered in the Eastern District of Virginia.

Clifford E. Perry, a Virginia prisoner, complains of detainers filed by authorities in Maryland and Florida. He alleges the following facts concerning the Maryland detainer: In February of 1966, Montgomery County police filed a detainer against him for housebreaking and larceny. In April 1967, Perry requested a speedy trial, but an administrative assistant of the trial court informed him that he would have to arrange for his own transportation from the Virginia prison to Maryland.

Concerning the Florida charge, Perry alleges that in 1966, officers of Pinellas County filed a detainer for automobile larceny against him. He petitioned the Circuit Court of Pinellas County for dismissal of the charge, and on December 9, 1966, the court denied his motion on the ground that he had never filed a demand for a speedy trial.

In March 1969, Perry sought dismissal of the detainers in the United States District Court for the Western District of Virginia. The court recognized that it could transfer the petition to federal courts in Florida and Maryland, but decided that it was preferable to dismiss it.

II.

In Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S.Ct. 988, 995, 18 L.Ed.2d 1 (1967), the Court described the right to a speedy trial secured by the Sixth Amendment1 as "one of the most basic rights preserved by our Constitution," and held that through the Fourteenth Amendment it was applicable to the states. Klopfer was soon followed by Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), in which the Court held that upon the demand of a prisoner confined in another jurisdiction a state has "a constitutional duty to make a diligent, good-faith effort to bring him" to trial. 393 U.S. at 383, 89 S.Ct. at 579. Smith put to rest a frequently criticized but widely held view that a state bringing charges against a prisoner confined by another state or the federal government need make no effort to prosecute him until he is released from custody.2 In reaching its conclusion, the Court noted that each of the fifty states guarantees the right to a speedy trial, and it reiterated "that this constitutional guarantee has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system: `1 to prevent undue and oppressive incarceration prior to trial, 2 to minimize anxiety and concern accompanying public accusation and 3 to limit the possibilities that long delay will impair the ability of an accused to defend himself.'" 393 U.S. at 377, 89 S.Ct. at 577. To these may be added the likelihood that the prosecutor's delay will thwart the public's interest in the prompt ascertainment and punishment of the guilty. See Peyton v. Rowe, 391 U.S. 54, 62, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).

Since Smith was decided on direct appeal from the Supreme Court of Texas, the Court had no occasion to discuss application of its principles to federal habeas corpus. Thus the question of whether a prisoner who has exhausted state remedies can assert his Sixth Amendment rights to bar pending state prosecutions or whether he must await his state court trial to present this defense was neither presented nor answered.

There can be no doubt that the writ may be issued by federal courts to release a prisoner who has been convicted in violation of his right to a speedy trial, even though the delay resulted from his detention in another state. Pitts v. North Carolina, 395 F.2d 182 (4th Cir. 1968); Luckman v. Burke, 299 F.Supp. 488, 493 (E.D.Wis.1969). And in May v. Georgia, 409 F.2d 203 (5th Cir. 1969), the Fifth Circuit significantly extended the use of the writ by applying Smith's principles to a prisoner who had not yet been tried. There a Florida prisoner complained that despite his demands, Georgia had not brought him to trial upon an indictment on which a detainer had been filed. The court held that if the prisoner had made sufficient demands for trial, the writ should issue subject to the right of Georgia to attempt to obtain the prisoner from Florida. The court noted that if Florida declined to deliver the prisoner, its refusal could be tested in federal court because "it would tend to interfere with the prisoner's Sixth Amendment rights." 409 F.2d at 205 n. 5.

Here, unlike the possibility that confronted Georgia, there is no doubt that Virginia could have obtained Kane, and Maryland could have obtained Sutherland for trial. Both are federal prisoners, and it is the policy of the Bureau of Prisons to comply with a writ of habeas corpus ad prosequendum issued by a state court. Moreover, the Bureau encourages "the expeditious disposition of prosecutions in state courts against federal prisoners." Smith v. Hooey, 393 U.S. 374, 381 & n. 13, 89 S.Ct. 575, 578, 21 L.Ed.2d 607 (1969). Cf. Rees v. Commonwealth, 203 Va. 850, 127 S.E.2d 406, 410 (1962), cert. denied, 372 U.S. 964, 83 S.Ct. 1088, 10 L.Ed.2d 128 (1963). And there can be little doubt that Maryland and Florida could have obtained Perry from Virginia. Temporary release of a Virginia prisoner to another state for trial is expressly authorized by Va. Code Ann. § 53-303 (1967). None of the delays in these cases resulted from inability of the prosecuting states to obtain the prisoners for trial. On the contrary, the prosecutors, after demand, did not make a diligent effort to obtain the prisoners as required by Smith.

Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), and Word v. North Carolina, 406 F.2d 352 (4th Cir. 1969), are persuasive authority for holding that a federal remedy is presently available. In Peyton, prisoners attacked future sentences which were consecutive to the sentences they were then serving. Overruling McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), the Supreme Court held that for the purposes of federal habeas corpus, the prisoners were in custody under both the present and future sentences. Consequently, the prisoners could attack the constitutionality of their future sentencees without awaiting the expiration of their present sentences.

In Word, Virginia prisoners complained of North Carolina...

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