Kiendra v. Hadden

• Decision Date: 24 May 1985
• Docket Number: D,No. 741,741
• Citation: 763 F.2d 69
• Parties: Victor E. KIENDRA, Plaintiff-Appellant, v. John T. HADDEN, Warden, Federal Correctional Institute, Ray Brook, New York, Defendant-Appellee. ocket 84-2348.
• Court: U.S. Court of Appeals — Second Circuit

Page 69

763 F.2d 69

Victor E. KIENDRA, Plaintiff-Appellant, v. John T. HADDEN, Warden, Federal Correctional Institute, Ray Brook, New York, Defendant-Appellee.

No. 741, Docket 84-2348.

United States Court of Appeals Second Circuit.

Argued April 11, 1985.

Decided May 24, 1985.

Victor E. Kiendra, pro se, for plaintiff-appellant.

David R. Homer, Asst. U.S. Atty., N.D.N.Y., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., N.D.N.Y., Syracuse, N.Y., of counsel), for defendant-appellee.

Before MANSFIELD, KEARSE and PRATT, Circuit Judges.

GEORGE C. PRATT, Circuit Judge.

The sole question presented on this appeal is whether the district court properly denied and dismissed defendant Victor E. Kiendra's application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241. For the reasons discussed below, we reverse and remand with a direction to the district court.

BACKGROUND

While incarcerated in the Rhode Island state penitentiary, Kiendra was convicted by the United States District Court for the District of Rhode Island of interstate transportation of stolen motor vehicles. The district court (Pettine, C.J.) sentenced Kiendra to three years of imprisonment, and directed, "Said sentence to commence when the defendant is released from the sentence now being served at the Rhode Island Adult Correctional Institution." Based on the district court's judgment and commitment order, the United States Marshals Service lodged a federal detainer with state correctional officials on March 27, 1981.

State authorities released Kiendra at the expiration of his state sentence on September 16, 1981. Kiendra contends that when the date for his release from state custody approached, state correctional officials contacted the federal marshals to arrange for his transfer to federal custody, but were informed that the marshals had no interest in Kiendra and no longer wanted to assume custody.

Shortly thereafter, on October 20, 1981, Providence police arrested Kiendra on an unrelated state charge. After Kiendra entered a guilty plea to the new charge, the Rhode Island Superior Court (DeRobbio, J.), aware of the federal detainer, sentenced him to a four-year prison term to be On October 28, 1982, Kiendra requested the state court to clarify its sentence. The court (DeRobbio, J.) reaffirmed the sentence the next day, and ordered Kiendra's immediate transfer to federal custody, but the marshals apparently took no action. When Kiendra subsequently filed a petition for habeas corpus relief, the state court (Kiley, J.) issued another order for Kiendra's transfer to federal custody. Again, the marshals apparently did nothing. It was not until the completion of Kiendra's state sentence on February 17, 1984, that federal marshals took him into custody and transported him ultimately to the federal correctional facility in Ray Brook, New York, to begin serving the three-year federal sentence.

served in a federal penitentiary, and to run concurrently with his three-year federal sentence. The state court notified the federal marshals, but, according to Kiendra, they still declined to take custody. State authorities then placed Kiendra in the state penitentiary.

On May 9, 1984, Kiendra filed this habeas corpus petition pro se alleging that his release from state custody in September 1981 rendered the federal detainer invalid and that federal authorities were detaining him in violation of the Interstate Agreement on Detainers Act (IADA), 18 U.S.C.App. Sec. 2.

On August 14, 1984, the government filed an affidavit in opposition to Kiendra's petition, arguing that he had not cited any applicable law to support his assertion that the detainer was invalid and that he had incorrectly relied on the IADA. In an August 29, 1984 report-recommendation, United States Magistrate Ralph W. Smith agreed with the government and recommended dismissal of the petition.

Although a return receipt card indicates that the mailing department at Ray Brook received a copy of the report-recommendation on September 7, 1984, Kiendra claims that he never got a copy, and that since he was unaware of it, he failed to file timely objections. He did, however, file an affidavit on September 19, 1984 in opposition to the government's August 14 affidavit, in which he argued for the first time that he was entitled to credit on his federal sentence for time served on his state sentence.

On September 21, 1984, the United States District Court for the Northern District of New York (Foley, J.) adopted the magistrate's report-recommendation and dismissed the petition. By letter dated September 24, 1984, Kiendra informed the district court that he had never received the magistrate's report-recommendation and requested the court to "reopen" the petition so he could file a response. Finding that the objections in Kiendra's opposing affidavit would have been unavailing even if timely filed, the district court denied the request for reconsideration and reaffirmed the dismissal. This appeal followed.

DISCUSSION

The district court correctly rejected Kiendra's assertion that the federal authorities were holding him in violation of the IADA. The terms of the IADA apply only when a person is serving a prison term and a detainer from another jurisdiction has been lodged against the prisoner on the basis of "any untried indictment, information, or complaint". 18 U.S.C.App. Sec. 2, Art. III(a) (Supp.1981). Since the federal marshals lodged their detainer against Kiendra on the basis of the district court's judgment and order of commitment, and not on an untried matter, the IADA affords him no relief. Hernandez v. United States, 527 F.Supp. 83, 85 (W.D.Okla.1981); see United States v. Roach, 745 F.2d 1252, 1254 (9th Cir.1984); Hopper v. United States Parole Commission, 702 F.2d 842, 846 (9th Cir.1983).

In his opposing affidavit, Kiendra had asserted that he was entitled to credit against his federal sentence for time served in the state penitentiary. The government argues that this claim is not properly before us since it was not presented in the district court but was raised for the first time "in appellant's brief on appeal." See Wedra v. Thomas, 671 F.2d 713, 718 (2d Cir.1982), cert. denied, 458 U.S. 1109, 102 S.Ct. 3491, 73 L.Ed.2d 1372 (1982). Although it is true that Kiendra did not present this claim in his petition, he did assert it in his opposing affidavit, which the docket sheet indicates was filed two days before the district court issued its first order on September 21. Further, the district court's September 28 order indicates that it did consider and reject this claim. Moreover, since the district court had the opportunity to review this claim, and in view of Kiendra's contention that he failed to file timely objections to the magistrate's report-recommendation because he never received a copy of it, the claim is properly before us. Cf. LaBruna v. U.S. Marshal, 665 F.2d 439, 442 (2d Cir.1981) (where the liberty of an individual is at stake, and in the absence of countervailing considerations, we see no valid reason to remand to the district court to consider a claim raised for the first time on appeal). Accordingly, we turn to the merits of Kiendra's claim.

The federal judgment and commitment order directed that Kiendra's sentence was to commence upon his release from the sentence then being served on the first state charge. Yet, when the federal marshals were informed that Kiendra was due for release from the state...