Moore v. Whyte

• Decision Date: 13 May 1980
• Docket Number: No. 14633,14633
• Citation: 266 S.E.2d 137,164 W.Va. 718
• Parties: Samuel L. MOORE v. William WHYTE, Superintendent, Huttonsville Correctional Center.
• Court: West Virginia Supreme Court

Page 137

266 S.E.2d 137

164 W.Va. 718

Samuel L. MOORE v. William WHYTE, Superintendent, Huttonsville Correctional Center.

No. 14633.

Supreme Court of Appeals of West Virginia.

May 13, 1980.

Syllabus by the Court

1. The Agreement on Detainers, to which West Virginia is a party, is activated when a detainer is lodged against a prisoner in another party jurisdiction. W.Va. Code, 62-14-1 et seq.

2. A writ of habeas corpus ad prosequendum is a "written request for temporary custody" under the Agreement on Detainers.

3. If West Virginia obtains custody of a prisoner against whom a detainer has been lodged, the prisoner must be tried within one hundred twenty days of his arrival in the State, absent a good cause motion for a continuance made in open court, or the charge must be dismissed with prejudice. Code, 62-14-1, Agreement on Detainers, Article V(c).

4. If West Virginia obtains custody of a prisoner against whom a detainer has been lodged and returns him to the original place of confinement before trying him, the charges must be dismissed with prejudice. Code, 62-14-1, Agreement on Detainers, Article IV(e).

5. A party state to the Agreement on Detainers is presumed to know its terms and must comply with it.

Michael B. Victorson, Charleston, for petitioner.

Chauncey H. Browning, Atty. Gen., Richard L. Gottlieb, Ann V. Dornblazer, Asst. Attys. Gen., Charleston, for respondent.

HARSHBARGER, Justice:

Moore protests his confinement, claiming that he was convicted and sentenced in violation of the Interstate Agreement on Detainers, W.Va. Code, 62-14-1.

He was indicted on March 30, 1972, for armed robbery by a Logan County grand jury while he was in the Atlanta federal penitentiary. A Logan County prosecutor sent a capias and letter to the U.S. Marshal stating:

Please find enclosed herewith a capias for the arrest of one Sam Moore. I hereby request that you place this capias with the proper institution as a holder for our office against said Sam Moore.

The Marshal forwarded the warrant to the warden in Atlanta, who acknowledged the letter and responded:

If the inmate is wanted by you and you desire to file a detainer, it will be necessary for you to forward to us a certified copy of your warrant.

On July 27, 1972, an attested copy of the indictment was sent to Atlanta with a letter from the prosecutor requesting that you place same as a detainer against Samuel Moore and in the event he should be released please notify our office and we will make arrangements to have him returned to West Virginia.

Confirmation that the detainer had been received was sent from Atlanta on August 8, 1972.

Then, the Logan County Circuit Court signed two writs of habeas corpus ad prosequendum on the 14th and 23rd of August, 1972. ¹ Both required Moore's presence on September 14 for prosecution. Moore was returned to West Virginia, brought before the Logan County Court on three separate occasions in September, and without having been tried was returned to Atlanta on October 7.

On December 1, 1972, the Logan County prosecutor's office again requested that he be brought here. He was returned on January 31, 1973 for trial on February 20; but on that day the prosecution moved for a continuance, which was granted by the court, and Moore was finally tried on March 27. He was convicted of armed robbery and sentenced to serve twenty years in the penitentiary. He filed petitions for habeas corpus in circuit court and here. The circuit court denied the petition.

Did the state violate Articles IV(c), IV(e), and V(c) of the Agreement (Code, 62-14-1)? Article IV(c) ² requires that a prisoner's trial commence within 120 days of his arrival in the state, unless good cause for a continuance is shown in open court. If Article IV(c) is violated, Article V(c) ³ requires the court to dismiss the charge with prejudice. This remedy, dismissal with prejudice, is also provided in Article IV(e) ⁴ if the state returns the prisoner to the jurisdiction of his original confinement without having tried him.

The government recognizes that the United States Supreme Court decision in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978) holds with its companion case, United States v. Ford, 550 F.2d 732 (2d Cir. 1977), affirmed, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), that state behavior identical to this violates the Agreement and requires dismissal of the charge. Because Mauro was not decided until 1978, and petitioner was There is no doubt that much confusion existed pre-Mauro about whether a federal writ of habeas corpus ad prosequendum constituted a detainer. This interpretive problem arose because the IAD rules are not triggered until a detainer is lodged. If a detainer is filed against the prisoner, the "receiving state" may obtain custody of him by sending a "written request for temporary custody" to the "sending state." Agreement, Article IV(a). ⁵ Then when a prisoner is brought into the receiving state, he must be tried within 120 days and may not be returned to the sending state before trial. If the receiving state fails to meet these conditions, the charges must be dismissed with prejudice, as noted supra.

tried in 1973, the state argues that it reasonably relied on prior decisions to determine what conduct would comply with the Agreement.

The federal government was frequently obtaining custody of state prisoners by writs of habeas corpus ad prosequendum, per 28 U.S.C. § 2241(a) and (c)(5). As a party to the IAD, if those writs were detainers, the federal government would be obliged to abide by the 120-day and no-return rules. By 1977 five circuits had decided the issue and were split three ⁶ to two ⁷ in favor of holding that the federal writs of habeas corpus ad prosequendum did not constitute detainers under the Agreement. Surprisingly, these are the cases that the state cites to support its position. Based on this split of opinion among the circuits, which did not arise until 1977, it claims it was justified in failing to follow the terms of the Agreement in 1972 and 1973. If nothing else, the state's argument is temporally inaccurate. Prosecutors in Logan County in 1972 could not possibly have "reasonably relied" on authorities that did not surface until 1977.

The issue here and the issue in the cases cited as authority for the state's behavior differ markedly. Those cases speak to whether or not a federal writ of habeas corpus ad prosequendum is a detainer. In United States v. Mauro, supra, United States v. Kenaan, supra, United States v. Scallion, supra, and Ridgeway v. United States, supra, no separate detainer was filed. Here a detainer was lodged before the writ of habeas corpus ad prosequendum.

Although the Agreement does not define detainer, the legislative reports leading to its adoption by the United States Congress state that a detainer "is a notification filed with the institution in which a prisoner is serving sentence, advising that he is wanted to face pending criminal charges in another jurisdiction." S.Rep.No.91-1356, 91st Cong., 2d Sess. (1970); H.R.Rep.No.91-1018, 91st Cong., 2d Sess. (1970). Our own court has defined a detainer as "a writ or instrument, issued or made by a competent officer, authorizing the keeper of a prison to keep in his custody a person therein named." State v. Arrington, 147 W.Va. 753, 762, 131 S.E.2d 382, 388 (1963). A capias accompanied by a letter requesting that a prisoner be held in custody pending arrival of state officers was held to be a detainer in State v. Arrington, supra. The The question is whether writs of habeas corpus ad prosequendum, issued by a state court judge, are "written request(s) for temporary custody" within the meaning of Article IV(a) of the Agreement; not whether they are detainers. ⁹ Mauro determined that federally issued writs of habeas corpus ad prosequendum are written requests which activate the procedural requirements of Articles IV and V of the Agreement if a detainer had previously been lodged. ¹⁰

Logan County prosecutor's office, following an identical procedure except that it more clearly and specifically requested that a detainer be lodged, ⁸ intended to and did issue a detainer for Samuel Moore. The lodging of the detainer was even confirmed by Atlanta authorities. Therefore, any analogy to those circuit cases again fails.

It would be impossible to construe these documents as anything but written requests for temporary custody. Not only do they request custody of the prisoner, they recite that he is being removed "to be prosecuted as Defendant in indictments returned against him . . . and immediately after the said Defendant shall then and there be prosecuted as aforesaid, and after all proceedings are concluded" he will be returned.

A party state to the Agreement is presumed to know its terms and must comply with it. Enright v. United States, 434 F.Supp. 1056 (S.D.N.Y.1977); 437 F.Supp. 580 (S.D.N.Y.1977). And therefore, after lodging the detainer against Moore and having him returned, West Virginia was obliged to try him within 120 days of his arrival, and not return him before he was tried; or it would forfeit its right to try him at all under the indictment. Agreement, Articles IV(c), IV(e), and V(c). Moore was kept in West Virginia for nearly two months, until October 7, 1972, and then returned to Atlanta without having been tried. This violates Article IV(e). In addition, Article IV(c) required that he be tried by January 14, 1973 (within 120 days) unless a good cause motion for a continuance had been granted in open court with the prisoner present. The record does not reveal any such motion before January 14, 1973, and the state does not argue that one existed.

The language in Articles IV(e) and V(c) has been held to be mandatory. United States v. Ford, 550 F.2d 732, 744 (2d Cir. 1977), affirmed, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). This State by failing to comply must dismiss...