Petition of Gay

• Decision Date: 17 January 1990
• Citation: 548 N.E.2d 879,406 Mass. 471
• Parties: Petition of David Francis GAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 879

548 N.E.2d 879

406 Mass. 471

Petition of David Francis GAY.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 4, 1989.

Decided Jan. 17, 1990.

Milly Whatley, Committee on Public Counsel Services, for petitioner.

Abbe L. Ross, Asst. Atty. Gen., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

While incarcerated at Massachusetts Correctional Institution, Gardner, in May, 1988, petitioner, David Francis Gay, received formal notification that two detainers ¹ had been filed against him by the State of California. ² The detainers alleged that Gay had committed burglary and a parole violation in California. On May 23, 1989, pursuant to his rights under the Interstate Agreement on Detainers (Agreement), to which both Massachusetts and California are parties, see St.1965, c. 892, and Cal.Penal Code § 1389 (West 1982), Gay requested final disposition of the charges underlying both detainers. The California Parole and Community Service Division received Gay's request on May 31, 1988.

The Agreement requires that Gay "be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint" charged in the detainers. Art. III(a), St.1965, c. 892. It is undisputed that Gay complied with the requirements of this provision. California however, took no action with respect to the burglary detainer within the 180-day time limit specified in art. III(a) of the Agreement. ³

Gay was paroled from his Massachusetts sentence on March 31, 1989, and took up residence in Northampton. On June 14, 1989, he was arrested there on a warrant issued by the Governor of the Commonwealth commanding his return to California to face the burglary charge. Gay subsequently filed a petition for a writ of habeas corpus in the Superior Court. He contends that the Governor's warrant under which he is being held is invalid due to California's failure to bring him to trial within 180 days as provided in the Agreement. Due to this failure, Gay argues, he ceased to be a fugitive from justice on the expiration of the 180-day period, and the Governor of the Commonwealth therefore lacked jurisdiction to issue a warrant for his arrest and extradition.

A judge of the Superior Court considered Gay's petition and reasoned that "neither the [Agreement] nor any other source authorizes a sending State (here, Massachusetts) to dismiss or otherwise invalidate a charge in the receiving State (here, [California] ) underlying a detainer for noncompliance with the [Agreement] or even to inquire into such compliance." Cross v. Commissioner of Correction, 27 Mass.App.Ct. 1154, 1155, 539 N.E.2d 74 (1989). That inquiry, concluded the Superior Court judge, can be made only in a California court. Accordingly, an order entered denying Gay's habeas corpus petition. Gay appealed, and we transferred the appeal to this court on our own motion. We affirm the order dismissing the petition for habeas corpus.

Before addressing the merits of this case, we find it helpful briefly to outline the various statutory and constitutional provisions that play a part in our analysis. The Agreement, St.1965, c. 892, is an interstate compact ⁴ designed to facilitate the "expeditious and orderly disposition" of detainers. Agreement, art. I. Also relevant to our inquiry is the Uniform Criminal Interstate Rendition Law (Rendition Law), G.L. c. 276, §§ 11-20R (1988 ed.). ⁵ That law also provides a mechanism for the orderly transfer of individuals to face criminal charges in another State. A primary difference between these statutes, which is relevant here, is that the Rendition Law applies to fugitives in general, whereas the Agreement applies only to prisoners. See Dodson v. Cooper, 705 P.2d 500, 502 (Colo.1985), cert. denied, 474 U.S. 1084, 106 S.Ct. 857, 88 L.Ed.2d 896 (1986). ⁶ Finally, both statutes must be construed in light of, and harmonized with, the extradition clause of the Federal Constitution, U.S. Const., art. IV, § 2, cl. 2. ⁷

With this background in mind, we now address the issue presented in this case: does a court of a sending State (here, Massachusetts) have jurisdiction to grant a habeas corpus petition predicated on the apparent failure of a receiving State (here, California) to comply with the Agreement? In answering this question, we must look to the language of both the Agreement and the Rendition Law. Gay appears to rest his argument solely on the Agreement. However, since he was not incarcerated at the time of his arrest on the Governor's warrant, the authority for ordering this extradition, if any exists, can be found only in the Rendition Law. Thus, we must ask whether noncompliance with the Agreement precludes the Rendition Law's requirements from being met. This inquiry compels us to interpret both statutes.

In order to issue a warrant under the Rendition Law, the Governor must find that the person demanded is "substantially charge[d]" with a violation of the receiving State's law. See G.L. c. 276, § 14 (1988 ed.). The fact that the Governor has issued an extradition warrant in this case provides prima facie evidence that this requirement, and all other applicable statutory prerequisites to extradition, have been met. See Michigan v. Doran, 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521 (1978). To refute this showing, Gay must produce "clear and satisfactory" evidence that he is not in fact "substantially charge[d]" with a violation of California law. See Upton, petitioner, 387 Mass. 359, 363, 439 N.E.2d 1216 (1982).

However, the ways in which Gay can make this showing in the context of a habeas corpus challenge in a sending State's court are strictly limited by the extradition clause of the Federal Constitution. The United States Supreme Court has observed that the extradition clause and implementing Federal legislation contemplate swift return of the individual to the receiving State. See Sweeney v. Woodall, 344 U.S. 86, 89-90, 73 S.Ct. 139, 140-141, 97 L.Ed. 114 (1952). "To allow plenary review in the [sending] state of issues that can be fully litigated in the [receiving] state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, sec. 2." Michigan v. Doran, supra 439 U.S. at 290, 99 S.Ct. at 536. Thus, "[o]nce the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the [receiving] state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive." Id. at 289, 99 S.Ct. at 535. See Upton, petitioner, supra 387 Mass. at 361, 439 N.E.2d 1216 (sending State's scope of inquiry under Rendition Law limited to factors enunciated in Michigan v. Doran).

Gay argues that he is not a "fugitive," and thus may not be extradited pursuant to a Governor's warrant. His argument lacks merit. For extradition clause purposes, a "fugitive" is one who is charged with committing a crime in a State and who subsequently leaves that State, for whatever reason. See Appleyard v. Massachusetts, 203 U.S. 222, 227, 27 S.Ct. 122, 123, 51 L.Ed. 161 (1906). Once having been charged and having fled the State, that person remains a fugitive until the charges against him are dropped. See Giardino v. Bourbeau, 193 Conn. 116, 127, 475 A.2d 298 (1984). Under this definition, it is clear that Gay is a fugitive. He has been charged with violating California's burglary statute, and is now present in Massachusetts. Furthermore, the charges against him have not been dropped by a California court.

Gay responds by arguing that, although no California court has expressly dismissed the burglary charge against him, a Massachusetts court nonetheless may treat that charge as having been dropped. While Gay's argument is not precisely formal in this regard, we sense that he is resting this argument on either of two principles: (1) that the California charge was dismissed by operation of law (namely under the terms of the Agreement) upon the expiration of the 180-day period; or (2) that a Massachusetts court has jurisdiction to dismiss a California charge due to noncompliance with the Agreement.

There is no basis in the language of the Agreement to support either theory. By its plain language, the Agreement provides that when the charges underlying a detainer are not disposed of within 180 days, "the appropriate court of the jurisdiction where the indictment, information or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect." Agreement, art. V(c). This indicates not only that some judicial action is required to dismiss the charges, but that only the courts of the receiving jurisdiction have the power to take such action. See Cross v. Commissioner of Correction, 27 Mass.App.Ct. 1154, 1155, 539 N.E.2d 74 (1989). See also In re Fabricant, 118 Cal.App.3d 115, 120, 173 Cal.Rptr. 245 (1981); Giardino v. Bourbeau, 193 Conn. 116, 126, 475 A.2d 298 (1984); State ex rel. Chamberlain v. Martinco, 288 Minn. 231, 234, 179 N.W.2d 286 (1970); State v. West, 79 N.J.Super. 379, 386, 191 A.2d 758 (1963). ⁸

We therefore conclude that Gay remains a fugitive from California law, even assuming that California has violated the Agreement by not disposing of his pending burglary charge within 180 days. ⁹ Because he remains a fugitive, Gay has no basis upon which to challenge the issuance of the Governor's warrant providing for his extradition to California. ¹⁰

The order dismissing the petition for a writ of habeas...