Mars v. United States

• Decision Date: 18 December 1978
• Docket Number: Crim. A. No. 4-82908. Civ. A. No. 7-70165.
• Citation: 463 F. Supp. 87
• Parties: Joseph Herbert MARS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of Michigan

463 F. Supp. 87

Joseph Herbert MARS, Petitioner, v. UNITED STATES of America, Respondent.

Crim. A. No. 4-82908. Civ. A. No. 7-70165.

United States District Court, E. D. Michigan, S. D.

December 18, 1978.

Federal Defender Office by Kenneth R. Sasse, Deputy Federal Defender, Detroit, Mich., for petitioner.

United States Attorney's Office, James K. Robinson, U.S. Atty. by Kenneth R. Fitzpatrick, Asst. U.S. Atty., Detroit, Mich., for respondent.

OPINION

FEIKENS, District Judge.

In United States v. Mars, 443 F.Supp. 774, (E.D.Mich.1978) (hereinafter "Mars"), the petitioner brought a motion to vacate his federal bank robbery conviction on the ground that the government had violated the Interstate Agreement on Detainers Act, 18 U.S.C. App. ("IAD") in securing his conviction. I denied that motion for the reasons set forth in Mars. The petitioner appealed and on November 7, 1978, the United States Court of Appeals for the Sixth Circuit remanded the case for consideration in light of United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) aff'g United States v. Ford, 550 F.2d 732 (2d Cir. 1977). The court of appeals gave the following instructions.¹

1. Determine the date from which the delay in trying Mars should be calculated for the purpose of determining whether IV(c), 18 U.S.C. App. was violated.

2. Determine whether IAD itself was violated.

3. Determine whether § 2255 is an appropriate way in which to raise IAD claims.

4. Determine whether Mars waived his IAD claims by failing to raise them before trial.

5. Decide whether the Supreme Court's decision in Mauro is retroactive.

1. The date from which the 120 day period in IV(c) should be calculated is July 24, 1975, the date of his third release to federal custody. Therefore, because only 53 days elapsed between Mars' arrival in federal custody and his trial, no violation of IV(c) has occurred in this case, even under United States v. Mauro.

Mars argues that the 120 day period should be calculated from February 13, 1975, the date on which he first came into federal custody. However, he fails to note that the complaint which initiated the federal authorities' involvement was dismissed for lack of progress on April 22, 1975. IV(a) specifies that prisoners are transferred under the IAD only when an indictment or complaint is pending. For purposes of this conviction, this did not occur until July 24.

2. However, even though IV(c) was not violated, IV(e) would have been violated under the interpretation of the IAD in United States v. Mauro. On July 24, 1975, Mars was taken into federal custody by a writ of habeas corpus ad prosequendum, and on July 31 he was returned to state custody without having been tried.

3. As to whether a § 2255 motion is a proper way to raise an IAD claim, I conclude that the court of appeals has effectively foreclosed a negative answer, at least on the facts of this case. If the court did not believe § 2255 appropriate it would have dismissed this petition instead of remanding. Were I free to decide this question, I would follow United States v. Edwards, 564 F.2d 652, 653 (2d Cir. 1977) and Hitchcock v. United States, 580 F.2d 964, 966 (9th Cir. 1978) and hold that IAD claims may not be raised in § 2255 motions.

4. Although Mars may raise his IV(e) claim here, by failing to raise it until now, he has waived it.

Mars contends that he did not waive the IAD's protections because the rights conferred by the IAD are forfeited only upon knowing and intentional relinquishment. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

I disagree. The rights conferred by the IAD have been analogized to those that arise from jurisdictional statutes, statutes of limitations, speedy trial statutes and removal statutes. (See Government's Court of Appeals Brief, pp. 11-12). It is not necessary to decide which of these is most appropriate in order to hold that IAD rights may be waived by failing to present them at trial or on appeal. As the Supreme Court said in Schneckloth v. Bustamonte, 412 U.S. 218, 237, 93 S.Ct. 2041, 2052, 36 L.Ed.2d 854 (1973), "the requirement of a knowing and intelligent waiver has generally been applied only to those rights which the Constitution guarantees to a criminal defendant in order to preserve a fair trial." The rights flowing from the IAD are not related to trial fairness.

Though no case has come to my attention which directly addresses the issue at hand, several cases hold the IAD may be waived in a variety of contexts. In Gray v. Benson, 443 F.Supp. 1284, 1294 (D.Kan.1978), the court discussed many of these cases and noted in dicta that IAD rights could be waived. In United States v. Palmer, 574 F.2d 164, 167 (3d Cir. 1978), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978), the court found that a guilty plea waived a IV(e) violation. In Strawderman v. United States, 436 F.Supp. 503, 504 (E.D.Va.1977), the court held that an IAD claim was not a jurisdictional defect and hence was waived by a guilty plea, citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In United States v. Cyphers, 556 F.2d 630, 637 (2d Cir. 1977) (Timbers, J., dissenting in part and concurring in part), cert. denied, 436 U.S. 950, 98 S.Ct. 2858, 56 L.Ed.2d 792 (1978), it was stated that the IAD was waived because it was not raised before trial. Judge Timbers reasoned that the purpose of the IAD is to deter certain delays in bringing defendants to trial. Because the government cannot rely on prisoners to fail to raise the IAD before trial, no deterrent purpose would be served by allowing the IAD to be raised after trial. See also United States v. Scallion, 548 F.2d 1168, 1174 (5th Cir. 1977), cert. denied, 436 U.S. 943, 98 S.Ct. 2843, 56 L.Ed.2d 784 (1978).

Similarly, some courts say that IV(e) claims are waived if the prisoner requests to be transferred from the transferee state to the transferor state before trial. United States v. Scallion, supra, 548 F.2d at 1170; United States v. Ford, supra, 550 F.2d at 742; United States v. Mauro, 436 U.S. at 364, 98 S.Ct. 1834 (no waiver of IV(c) claims because prisoner raised speedy trial claim).

The Sixth Circuit Court of Appeals' finding that the prisoner did not waive his IAD claim by failing to present it before trial in United States v. Eaddy, 563 F.2d 252, 255 (6th Cir. 1977) does not compel a contrary result. There the prisoner raised a speedy trial claim before trial—Mars did not. Moreover, the Court of Appeals expressly left open the waiver question in its remand. Had it thought the matter foreclosed it would have so indicated.

5. The Retroactivity of Mauro

The final question—the retroactivity of the Supreme Court's decision in United States v. Mauro—is the weightiest one presented.

Briefly, Mauro held that where, as here, the government lodges a detainer against a prisoner in state custody and then procures him by a writ of habeas corpus ad prosequendum, the IAD applies, because writs of habeas corpus ad prosequendum are "written requests for temporary custody." In Mars, I held that they were not.

If United States v. Mauro is given retroactive effect, and the other issues here are resolved in his favor, Mars' federal conviction will be void. I hold, however, that United States v. Mauro should not be applied retroactively.²

In support of his retroactivity claim, petitioner cites United States v. Estate of Donnelly, 397 U.S. 286, 294-5, 90 S.Ct. 1033, 1038, 25 L.Ed.2d 312, which states, although

. . . the United States, like other parties, is entitled to adhere to what it believes to be the correct interpretation of a statute . . . it is only in rare cases that decisions construing federal statutes might be denied full retroactive effect . . ..

Mars contends that United States v. Mauro is not one of the "rare cases" referred to.³ Although I do not gainsay the Supreme Court, a canvass of pertinent authority leads me to conclude that the petitioner is in error on this question.

There has been substantial recent development in the doctrine of non-retroactivity. The case of Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971) is particularly instructive in this regard. That case involved a claim that the decision in Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969) should be given retroactive application. Rodrigue held that the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., should govern injuries sustained on fixed structures located on the Shelf. This holding resulted in a shorter statute of limitations being applied to the plaintiff's claim than had applied when he filed his suit. Under the old rule, his claim was timely while under the new interpretation of the Act, his claim was barred. The Supreme Court held that the decision in Rodrigue should not apply retroactively and in so doing provided a useful synopsis of the history of the doctrine of non-retroactivity. The Court stated:

In recent years, the nonretroactive application of judicial decisions has been most conspicuously considered in the area of the criminal process. But the problem is by no means limited to that area. The earliest instances of nonretroactivity in the decisions of this Court — more than a century ago — came in cases of nonconstitutional, noncriminal state law. It was in a noncriminal case that we first held that a state court may apply its decisions prospectively. And, in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases. Id., 404 U.S., at 105-106, 92 S.Ct., at 355. citations omitted footnotes omitted

This discussion, in addition to being of general interest in this case, is especially pertinent in another regard. It disposes quickly of a contention that petition...