Lawrence v. Blackwell

• Decision Date: 31 March 1969
• Docket Number: Civ. A. No. 11472.
• Citation: 298 F. Supp. 708
• Parties: Donald W. LAWRENCE; David C. Allen; William L. R. Harmon; Donald H. McClelland; William J. Martell; Jimmie E. Raines; Edwin I. Schwartz; and all others similarly situated v. Olin G. BLACKWELL, Warden, U. S. Penitentiary, Atlanta et al.
• Court: U.S. District Court — Northern District of Georgia

298 F. Supp. 708

Donald W. LAWRENCE; David C. Allen; William L. R. Harmon; Donald H. McClelland; William J. Martell; Jimmie E. Raines; Edwin I. Schwartz; and all others similarly situated v. Olin G. BLACKWELL, Warden, U. S. Penitentiary, Atlanta et al.

Civ. A. No. 11472.

United States District Court N. D. Georgia, Atlanta Division.

March 31, 1969.

Bruce R. Jacob, Thomas E. Baynes, Jr., William H. Traylor, Atlanta, Ga., for plaintiffs.

Theodore E. Smith, Asst. U. S. Atty., Atlanta, Ga., for the United States.

Thomas Wade Bruton, Atty. Gen., Jacob L. Safron, Staff Atty., Dept. of Justice, State of N. C., Raleigh, N. C., for defendants Bounds and Hayes.

Henry Wade, Criminal Dist. Atty., Malcolm Dade, Asst. Dist. Atty., Dallas, Tex., for defendants Decker and Wade.

Wm. E. Spence, Sol. Gen., Hinson McAuliffe, Frank A. Bowers, Asst. Sol. Gens., Crim. Court of Fulton County, Atlanta, Ga., for defendant Spence.

MacDonald Gallion, Atty. Gen. of Ala., David W. Clark, Asst. Atty. Gen., for defendant Morgan.

ORDER

EDENFIELD, District Judge.

This case presents important questions concerning the effect of state detainers on the right of federal prisoners to a speedy trial under the Sixth Amendment. The case is brought as a class action by several inmates at the United States Penitentiary in Atlanta, each of whom allegedly has criminal charges pending against him in one or more state courts. The state defendants have each filed detainers against these inmates pursuant to the outstanding state charges. These detainers are filed with the Sheriff of Fulton County, Georgia, and in the records office of the Atlanta federal penitentiary.

These prisoners seek to represent the class of Atlanta penitentiary inmates with state charges outstanding for at least the length of time they have been pending against the named plaintiffs. Because of previous actions in the case, Plaintiffs Lawrence, Crosby, and Martell, and those individuals representing Jefferson County and Dallas County, Texas, and Pima County, Arizona, have been stricken as parties.

Plaintiff Allen is currently serving a six-year federal sentence imposed in June, 1966. He has had Florida charges continuously pending against him for grand larceny since 1965. Plaintiff Harmon has been in continuous federal custody since a two-year sentence was imposed in April, 1967. Since May, 1963, he has had a pending Florida charge for breaking and entering and grand larceny. Plaintiff McClelland is serving a federal sentence imposed in August, 1966. In December, 1965, McClelland was charged by Florida authorities with forgery, and in July, 1966, with cheating and swindling by the State of Georgia, all of which are still pending. Plaintiff Raines is in federal custody pursuant to an eight-year sentence levied in June, 1966. In September, 1966, he was charged with escape in North Carolina, a charge still pending. Plaintiff Schwartz is serving a three and one-half year sentence, given in September, 1967, and has outstanding a fraudulent check charge by Fulton County, Georgia, as well as a charge of cheating, swindling, and unlawfully disposing of mortgaged property, filed by Houston County, Georgia, and a charge of forgery by the State of Alabama. All of these prisoners have detainers issued against them, pursuant to state charges, except Raines, who has a "fugitive warrant" against him, and all except Plaintiff Allen allege affirmative action in seeking a speedy trial. Plaintiffs ask for declaratory and injunctive relief for themselves and their class, under 28 U.S.C. § 2201, 5 U.S.C. § 702, and 42 U.S.C. § 1983. Specifically, they ask this court to declare that the restrictions imposed upon them at the federal penitentiary because of the detainers violate their constitutional rights and ask that their enforcement be enjoined. They also ask for a declaration that the pending detainers are null and void and that an injunction be issued forbidding defendants from "filing, giving effect to, honoring, pursuing or enforcing in any manner or method the detainers now pending against plaintiffs and the criminal charges represented by said detainers." The defendants do not deny the existence of the pending state charges or the plaintiffs' demands for a speedy trial.

Plaintiffs' allegations are met by summary judgment motions filed by the United States and by the defendant States. The brief of the United States seeks to justify the prison restrictions imposed because of the outstanding state detainers. The States argue that this court lacks jurisdiction over them and that federal prisoners have no constitutional right to a speedy trial on state charges.

I. JURISDICTION OVER STATES

The states of Texas, Florida, Alabama, and North Carolina are beyond the jurisdiction of this court, absent a special provision. The plaintiffs urge that Rule 4(d) (7) of the Federal Rules of Civil Procedure permits service of process either in the manner prescribed by federal law or in "the manner prescribed by the law of the state in which the district court is held." Therefore, they contend that the Georgia long-arm statute, Ga.Code § 24-113.1, can be used to secure jurisdiction of the non-resident defendants. While Rule 4(d) (7) does permit the use of applicable state laws, the court holds that the Georgia long-arm statute cannot be used to secure the necessary service of process over the representatives of the states outside Georgia.

First, it overtaxes the imagination to conceive that the long-arm statute was designed to cover situations such as this one. The statute itself provides that:

"A court of this State may exercise personal jurisdiction over any non-resident, or his executor or administrator, as to cause of action arising from any of the acts, ownership, use or possession enumerated in this section, in the same manner as if he were a resident of the State, if in person or through an agent, he

"(a) Transacts any business within this State; or

"(b) Commits a tortious act within this State, except as to a cause of action for defamation of character arising from the act; or

"(c) Owns, uses or possesses any real property situated within this State."

Plaintiffs argue that subsection (a) is satisfied because the out-of-state defendants are involved in the business of apprehending the plaintiffs and work through the Sheriff of Fulton County, who, as their agent, accepts their detainers. This interpretation of subsection (a) stretches the normal meaning of "business" out of all proportion. Plaintiffs cite no authority to support their unusual construction and the court can think of none. Plaintiffs also urge that subsection (b) of § 24-113.1 is satisfied since the defendants breached a duty by failing to bring the plaintiffs to trial. They contend that a common law tort is not necessary only a breach of a duty making defendants liable in damages—yet they have nowhere in their complaint asked for damages. Any harm to the plaintiffs here comes from the inaction of the defendants, none of which was "within this State". Moreover, the court cannot conceive that a state's failure to grant a speedy trial is a "tortious act" within the purpose and intent of the statute. Plaintiffs also argue that the Sheriff of Fulton County, who accepted the defendants' detainers, could be served as the agent of the defendants. But, the Sheriff does not become an agent for purposes of service simply by recognizing the existence of a state's intent to secure custody of a prisoner now in another jurisdiction.¹

Nevertheless, failure to secure jurisdiction of these defendants is not fatal to the plaintiffs' action. As will become evident, the court will not compel any action by these defendants but merely declare the rights of the plaintiffs in an action in which the court clearly has jurisdiction. It will be left to other courts to effectuate these rights.

II. RIGHT TO SPEEDY TRIAL FOR FEDERAL PRISONER ON STATE CHARGE AND REMEDY TO EFFECTUATE THE RIGHT

Until recently it would have been clear that a federal prisoner had no right to a Sixth Amendment speedy trial on state charges, and therefore could not remove any detainer lodged in furtherance of the state charge. Troyan v. United States Government, 240 F.Supp. 383 (D.Kan., 1964); United States ex rel. Masucci v. Follette, 272 F.Supp. 563 (S.D.N.Y., 1967); Gregory v. Page, 289 F.Supp. 316 (E.D.Okl., 1968). The law seemed clear that:

"When the court of one sovereign takes a person into its custody on a criminal charge he remains in the jurisdiction of that sovereign until it has been exhausted, to the exclusion of the courts of the other sovereign. That rule rests upon principles of comity, and it exists between federal and state courts. * * * But either the federal or a state government may voluntarily surrender its prisoner to the other without the consent of the prisoner, and in such circumstances the question of jurisdiction and custody is purely one of comity between the two sovereigns, not a personal right of the prisoner which he can assert in a proceeding of this kind." Wall v. Hudspeth, 108 F.2d 865, 866 (10th Cir., 1940).

Thus a state could have rested until the prisoner's federal custody terminated before affording him a trial on pending state charges. Henderson v. Circuit Court, 392 F.2d 551 (5th Cir., 1968); McCary v. Kansas, 281 F.2d 185 (10th Cir., 1960), cert. denied, 364 U.S. 850, 81 S.Ct. 94, 5 L.Ed.2d 73 (1960). As recently as January 23, 1969, the Fifth Circuit held that:

"Appellant has no right at this time to assert in federal court the denial of a speedy state trial." May v. State of Georgia, No. 26736, 5th Cir., Jan. 23, 1969.

However, by a two-step process, a federal prisoner now has a Sixth Amendment right to a speedy trial on a pending state charge. The first step in the process occurred with the Supreme Court's holding in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). For the first time, the Sixth Amendment...