EDWARDS, Circuit Judge.
It is a requirement of the law of our land that it be enforced in accordance with the procedures contained therein. Justice Felix Frankfurter summarized the justification for this sometimes onerous burden:
"The safeguards of 'due process of law' and 'the equal protection of the laws' summarize the history of freedom of English-speaking peoples running back to Magna Carta and reflected in the constitutional development of our people. The history of American freedom is, in no small measure, the history of procedure." Malinski v. New York, 324 U.S. 401, 413-14, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (emphasis added).
This is the second time this case has been before this court. After the first appellate hearing, we remanded the case to the District Court for resolution of certain additional issues of fact deemed essential to proper resolution. Many of the facts which produce the legal issues with which we deal were set out in our remand opinion:
"Petitioner-appellant perfected this appeal from an order of the district court denying his petition for habeas corpus relief . . . . The petition, as does this appeal, represents a collateral attack on his conviction in a Michigan state court of first degree murder.
"So far as they are pertinent to this opinion, the facts established by the record are that while appellant was serving a sentence for an unrelated offense in the State of New York, he was on June 27, 1968, brought back to Michigan pursuant to the Interstate Agreement on Detainers to face charges of assault with intent to commit murder and of first degree murder. He was indicted for both offenses, and a trial concluded on October 8, 1968, on the assault charge, resulted in his conviction of the lesser included offense of
assault with intent to do bodily harm less than murder. Thereafter, a first degree murder trial was scheduled for October 23, 1968, but on October 11, 1968, appellant filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan and the state authorities continued the trial pending a determination of the habeas corpus action. The district court dismissed the habeas corpus petition on November 7th and in a trial conducted from December 16, 1968, to December 20, 1968, appellant was found guilty of first degree murder and sentenced to life imprisonment.
"Following procedures not here material, appellant was returned to New York and then transported back to Michigan, where he is presently serving sentences imposed for the assault and murder convictions in the custody of the respondent-appellee.
"It is concluded that appellant's contention that Michigan waived its right to imprison the appellant on the murder conviction when its authorities returned him to New York after he had begun serving the life sentence in Michigan through administrative mistake is without merit. However, his other contention requires consideration.
"That contention arises out of the fact that the Interstate Agreement on Detainers requires that a person returned thereunder must be brought to trial within a 120 day period, and 173 days intervened between appellant's return to Michigan and the murder trial. The Michigan state court of appeals held that because the delay beyond the 120 day period resulted from appellant's institution of the habeas corpus proceedings, and the trial commenced within a reasonable time after the disposition thereof, the period of limitation had been tolled. The district court agreed with petitioner that the habeas corpus proceeding did not toll the 120 day period, but held that the Interstate Agreement, which it properly found provided a basis for the present attack, was nevertheless not violated because the stay in the proceedings resulted from the granting of valid continuances in the murder trial. It is this determination by the trial court which is particularly under attack in this appeal and which forms the basis for the remand which we conclude to be required.
"In regard to such continuances, appellant strenuously argues that no delay in the murder trial should have been granted except for good cause shown in an open court proceeding, following notification to him, and after affording him an opportunity to be present with counsel. While not presently passing on the legal consequences of such failures (if any occurred), we observe that the present record affords no proper basis for consideration of the issue sought to be raised.
"It is therefore directed that the district court determine on the basis of an evidentiary hearing or otherwise whether the continuances were on the basis of good cause shown after notification and with appellant (or) counsel present. If there was failure to observe one or more of these provisions, the court should then determine whether prejudice to the appellant resulted therefrom, and if not, whether non-prejudicial violation of the Compact nonetheless mandates vitiation of the trial and sentence and dismissal of the indictment.
"Remanded."
Stroble v. Egeler, 547 F.2d 339 (6th Cir. 1977).
On remand the District Judge resolved the fact disputes as follows:
"This court has conducted an evidentiary hearing and counsel for the parties have been given a full opportunity to argue the questions involved. The findings of the court follow.
"II. Compliance with Article IV(c) in granting continuances.
"A. The continuance of October 10, 1968 and the continuance of December 2, 1968 were granted for "good cause" as required by Article
IV(c) of the Interstate Agreement. When a defendant has been involved in a highly publicized trial lasting for more than a week and ending on October 8, a delay from an October date for the murder trial to December 2, to be certain that a fair trial can be had is for good cause. When the judge to whom the case is assigned is on trial on the day the matter is set for trial, a delay of two weeks to get a judge is for good cause.
"B. The continuances granted on October 10, 1968 and December 2, 1968 were " necessary" and "reasonable" as required by Article IV(c). The delay on December 2 was necessary to be certain that a fair trial could be had, and the time period was reasonable for the same reason, even though a new jury could have been drawn as early as November. The extra month to December 2 provided a reasonable time to permit the publicity surrounding the defendant as a result of the early October trial to subside. The delay from December 2 to December 16 was necessary because the judge to whom the case was assigned was on trial and it was reasonable being only for a period of two weeks.
"C. Neither the continuance of October 10, 1968 nor the continuance of December 2, 1968 was granted in "open court" as required by Article IV(c).
"D. The term "in open court" in Article IV(c) means that there must be a judge present in a courtroom conducting the proceedings in which the continuance is granted.
"E. Compliance with the Article IV(c) requirement of "the prisoner or his counsel being present" is unclear from the evidence presented. The record is clear that the petitioner was not present. It is not clear, however, whether petitioner's counsel was present at the time of the granting of the continuances.
"F. The evidence presented indicates that it is reasonably probable that the defendant or his counsel agreed to the continuances and that these continuances were approved by a judge within a few days of the time the clerk granted them.
"III. Prejudice and dismissal of the indictment under Article IV(e).
"A. The petitioner has shown no prejudice that resulted from the delay in his murder trial.
"B. The Interstate Agreement does not require a showing of prejudice before an indictment must be dismissed for violation of the time provisions of the Agreement."
The District Judge then denied the writ because in his view the 120 day limitation had been "tolled."
"IV. Tolling of the time period because of two separate charges under Article VI(a) of the Interstate Agreement.
"A. The defendant was charged with two different offenses, assault with intent to commit murder and murder, and returned to the state on June 27, 1968 to face both charges.
"B. The trial date for the assault with intent to commit murder charge was set on August 15, 1968 and the trial of the assault charge was begun October 2 and concluded on October 8, 1968. On August 15, 1968, the murder charge was set for trial on October 23, 1968.
"C. A person who is preparing for the trial and on trial on a charge of assault with intent to commit murder is "unable to stand trial" for the second offense from the time the first charge is assigned for trial within the meaning of Article VI(a) of the Interstate Agreement. If the state had attempted to try both charges during this time or had required the defendant to prepare
for the trial of these two serious crimes at the same time, prejudice to the defendant would have resulted. This is clearly a reason why under the agreement a person would be "unable to stand trial."
"D. Petitioner was thus "unable to stand trial" under Article VI(a) on the murder charge for 54 days, and the period of time under the Interstate Agreement was tolled for a...
