Piper v. Estelle

• Citation: 485 F.2d 245
• Decision Date: 27 September 1973
• Docket Number: No. 73-2320. Summary Calendar.,73-2320. Summary Calendar.
• Parties: Thomas J. PIPER, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

485 F.2d 245 (1973)

Thomas J. PIPER, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.

No. 73-2320. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 27, 1973.

Thomas J. Piper, Jr., pro se.

Dunklin Sullivan, Asst. Atty. Gen., Austin, for respondent-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

The instant appeal arises from the denial of a writ of habeas corpus. While on parole from a 1961 Texas conviction, Thomas J. Piper was charged by the State of Texas with robbery by assault. A separate federal prosecution for violations of the firearms registration laws grew out of the same activity. Piper was convicted and sentenced on both the state and federal charges. Texas, which had revoked Piper's parole immediately after his arrest on the robbery charge, released him to federal custody to permit him to begin serving the firearms sentence. Thereafter, a detainer was filed with federal authorities to require his ultimate return to Texas to complete the service of the remainder of the 1961 sentence from which he had been paroled and to serve the new sentence for robbery by assault. Piper claims here that so much of the detainer as relates to the completion of service of his 1961 sentence is void. He argues that both by their action and inaction Texas officials have waived jurisdiction over him as to his former conviction within our holding in Shields v. Beto, 370 F.2d 1003 (5th Cir. 1963). We affirm the order of the district court holding that this case is not within Shields.

Shields v. Beto was not intended to constitute a trap for unwary state officials. It is founded upon the due process clause of the Fourteenth Amendment and requires that "action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice" Shields at 1004. The facts in Shields are not at all analogous to those in the case at bar. Before expiration of the Texas sentence he was then serving, Shields had been extradited to Louisiana to complete a jail term. Texas filed no detainer, and Shields was ultimately released on parole in Louisiana. Eighteen years after his release and 28 years after his extradition to Louisiana, Texas sought to compel Shields to serve the remainder of his Texas sentence. We held that under these circumstances Texas had demonstrated such a lack of interest in Shields as to waive jurisdiction over him.

In cases based upon the principles of Shields it is not sufficient to prove official conduct that merely evidences a lack of eager pursuit or even arguable lack of interest. Rather the waiving state's action must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with "fundamental principles of liberty and justice" to require a legal sentence to be served in the aftermath of such action or inaction.

Piper alleges that there are three manifestations of lack of interest in him by Texas: (1) refusal to return him to the Department of Corrections to complete his 1961 sentence immediately after the revocation of his parole; (2) failure to file a detainer against him until 22 months after his parole revocation; and (3) a statement by a Texas official to a United States Attorney that Piper's parole had not been revoked when it in fact had been. Reliance on (2) and (3) is misplaced. There was no reason to file a detainer...