Mabery v. Garrison

• Citation: 405 F. Supp. 134
• Decision Date: 26 June 1975
• Docket Number: No. 74-231-CRT.,74-231-CRT.
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Fred MABERY, Plaintiff, v. Sam P. GARRISON, Warden of Central Prison, Raleigh, North Carolina, and Nicholas Ferraro, District Attorney, Queens County, New York, Defendants.

405 F. Supp. 134

Fred MABERY, Plaintiff, v. Sam P. GARRISON, Warden of Central Prison, Raleigh, North Carolina, and Nicholas Ferraro, District Attorney, Queens County, New York, Defendants.

No. 74-231-CRT.

United States District Court, E. D. North Carolina, Raleigh Division.

June 26, 1975.

Fred Mabery, pro se.

Ralph L. McMurry, Asst. N. Y. Atty. Gen., New York City, for defendant Ferraro.

Jacob L. Safron, Asst. Atty. Gen., Raleigh, N. C., for defendant Garrison.

BUTLER, Chief Judge.

Plaintiff, Fred Mabery, a state prisoner, has been granted leave to file in forma pauperis a civil rights action pursuant to 42 U.S.C. § 1983 seeking a declaratory judgment, injunctive relief, and damages. The gravamen of Mabery's complaint is his allegation that he was removed from North Carolina and transported to New York, incommunicado, for trial on New York charges without being afforded procedural due process and in violation of 18 U.S.C. § 3182 and N.C.G.S. § 148-89 North Carolina's codification of the Interstate Agreement on Detainers.

FACTS

Mabery was convicted of rape and kidnapping in North Carolina at the October 2, 1972 Session of the Pitt County Superior Court and sentenced to life imprisonment on each charge. However, on September 12, 1972, an indictment was returned in the Supreme Court of the County of Queens, State of New York, charging Fred A. Mabery with the crimes of first degree robbery, second degree kidnapping, second degree grand larceny, and third degree grand larceny. On August 22, 1973, Mabery filed a Motion for a Speedy Trial in the Queens County Supreme Court which the court denied as premature, the District Attorney having advised the court that New York would take steps to bring Mabery into the jurisdiction of the Supreme Court of New York for the purpose of trial. Thereupon, pursuant to the Interstate Agreement on Detainers, of which both the States of North Carolina and New York are members, N.C. G.S. § 148-89 and Section 669-b of the Code of Criminal Procedure of the State of New York, the Assistant District Attorney of the State of New York for the County of Queens completed Form 7 of the Agreement on Detainers and forwarded it, by letter of transmittal dated September 27, 1973, to the Honorable Sam Garrison, Warden of North Carolina Central Prison. On October 31, 1973, Thomas J. Flaherty, Deputy Chief of the Indictment and Investigation Bureau of the Office of the District Attorney of Queens County, forwarded a signed copy of Form V, "Request for Temporary Custody", pursuant to the Interstate Agreement on Detainers, to James P. Smith, Senior Administrative Assistant in the Department of Social Rehabilitation and Control of the State of North Carolina. By letter dated November 6, 1973, the Honorable James P. Smith, Senior Administrative Assistant of the Department of Social Rehabilitation and Control and North Carolina's Agreement Administrator of the Interstate Agreement on Detainers, advised the Honorable James E. Holshouser, Jr., Governor of the State of North Carolina, of the Governor's options under the Interstate Agreement. By letter dated November 7, 1973, Mr. Smith was advised that Governor Holshouser approved the request of Michael F. Armstrong, District Attorney for Queens County, New York, for temporary custody of Fred Mabery for trial under the terms of the Interstate Agreement on Detainers.

However, Mabery apparently changed his mind once it became apparent he was to be returned to the State of New York to stand trial on the charges pending in the Supreme Court of Queens County. On November 29, 1973, an Application for Writ of Habeas Corpus and Restraining Order was filed on Mabery's behalf by John C. Brooks, Esquire. A Show Cause Order was entered November 29, 1973, by the Honorable A. Pilston Godwin, Jr., Judge of the Superior Court of North Carolina, setting the matter down for hearing on December 3, 1973. The matter came on to be heard before the Honorable Henry A. McKinnon, Jr., Judge of the Superior Court of North Carolina, on December 3, 1973. Judge McKinnon found that the Form V filed on November 6, 1973, by Michael F. Armstrong, District Attorney for Queens County, specifically requested the temporary custody of one "Fred A. Newbery" and that Fred Mabery had therefore not received valid notice of the request. Judge McKinnon thereupon entered an Order dated December 3, 1973, directing the Warden to refuse to release the body of Fred Mabery until "there has been a reapplication for his temporary custody by proper authorities in said State New York in accordance with the provisions of G.S. § 148-89, Article IV(a); there has been given to the inmate, Fred Mabery, proper notice of any such application; and there has been a renewed approval of said inmate's removal from the State of North Carolina by the Governor of said State in accordance with the requirements of G.S § 148-89, Article IV(a)." On December 5, 1973, the Honorable James E. Holshouser, Jr., Governor of the State of North Carolina, withdrew approval for Mabery's temporary custody pursuant to Judge McKinnon's Order. The Governor noted that the New York District Attorney's Office may choose to renew the request for Mabery's custody.

The New York authorities did choose to renew their request for Mabery's temporary custody under the terms of the Interstate Agreement on Detainers and by letter of transmittal dated December 7, 1973, Thomas J. Flaherty, Deputy Chief of the Indictment and Investigations Bureau of the Queens County District Attorney, forwarded a copy of Form V of the Agreement on Detainers requesting the temporary custody of Fred A. Mabery. By letter dated December 10, 1973, James P. Smith, Agreement Administrator, once again advised Governor Holshouser of his options under the Interstate Agreement. A copy of this letter was also sent by certified mail, to John Brooks, Esquire, Attorney for Mabery. On December 12, 1973, Governor Holshouser approved the request for the temporary...