Young v. Mabry

• Decision Date: 07 December 1978
• Docket Number: No. PB-C-77-104.,PB-C-77-104.
• Citation: 471 F. Supp. 553
• Parties: James Earl YOUNG v. James MABRY, Commissioner, Arkansas Department of Correction.
• Court: U.S. District Court — Eastern District of Arkansas

471 F. Supp. 553

James Earl YOUNG v. James MABRY, Commissioner, Arkansas Department of Correction.

No. PB-C-77-104.

United States District Court, E. D. Arkansas, Pine Bluff Division.

December 7, 1978.

Wayne Zakrzewski, Little Rock, Ark., for petitioner.

Catherine Anderson, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

ROY, District Judge.

This action is before the Court on a petition for habeas corpus relief filed pursuant to 28 U.S.C., Sec. 2254.

On April 2, 1970 petitioner James Earl Young and his wife, Doris Jean Young, were charged by information filed in Pulaski County Circuit Court, State of Arkansas, with the crime of possession of stolen property in violation of Ark.Stat.Ann. Sec. 41-3938 (Repealed). Petitioner was charged in that same information with being a habitual criminal offender, in violation of Ark.Stat.Ann. Sec. 43-2328 (Repl. 1977), alleging he had previously been convicted of at least five felonies. The causes were severed and petitioner was tried and convicted on May 24, 1972, and a thirty-one year penitentiary sentence was imposed. The conviction was affirmed on appeal to the Arkansas Supreme Court, see Young v. State, 254 Ark. 72, 491 S.W.2d 789 (1973) and petitioner's subsequent motion before that Court for post-conviction relief was denied by per curiam order issued July 2, 1976.

Petitioner thereafter sought relief in federal district court by filing, on April 21, 1977, pro se motions for habeas corpus relief and for permission to proceed in forma pauperis, the latter request having been granted and counsel appointed to represent him in these proceedings.

With petitioner appearing represented by his court-appointed attorney, on June 8, 1978 a full scale evidentiary hearing was held before the Honorable Terry L. Shell, who took the matter under advisement after setting a schedule for briefs to be submitted to the Court. Unfortunately, Judge Shell's death on June 25, 1978 intervened prior to his determination of the merits of this case. However, petitioner's counsel did comply with the dates as set by Judge Shell and on June 29 submitted a post-trial brief. On July 17, 1978, at the request of this Court, petitioner's attorney indicated by letter that petitioner was agreeable to having the case decided on the basis of the record made at the June hearing.

In the meantime, petitioner filed two pro se motions for writs of mandamus with the United States Court of Appeals for the Eighth Circuit, both of which were denied on June 22 and August 30, 1978 respectively. In the Order entered the latter date, the Eighth Circuit Court of Appeals directed the United States District Court to order the respondent/State of Arkansas to file its post-trial brief and to indicate whether it was in agreement that disposition of the case could be made on the record made at the previous hearing. In compliance with this directive, this Court, having been assigned the case subsequent to Judge Shell's death, entered the indicated Order on September 5, 1978, which resulted in a request for another full scale evidentiary hearing by the State of Arkansas. In light of this request, the Court informed the Assistant Attorney General representing the respondent that its brief could be submitted after the second hearing as a post-trial brief as had been previously ordered. However, the State submitted what became, in light of the foregoing events, a pre-trial brief on September 14, 1978, and a full scale evidentiary hearing was held before this Court on September 15, 1978, as previously scheduled.

Because of matters raised in respondent's pre-trial brief and at the evidentiary hearing, petitioner's counsel requested additional time to respond thereto and asked to present additional evidence, if necessary, at a continuation hearing. In accordance with this request, the record was left open for ten days. However, both counsel were able to stipulate as to certain evidentiary matters with the stipulations filed on October 19, 1978, and becoming part of the record of the September evidentiary hearing. Both sides were permitted to, and have submitted supplemental and reply briefs, respectively, and the record is now closed as to evidentiary matters and for purposes of further argument.

In addition to the formal pleadings and briefs filed by the attorneys of record, petitioner submitted a pro se pleading styled "A Letter Requesting to Dismiss The Proceedings" which was filed in open court at the September hearing. Although, as alleged therein, certain briefing dates were not met by respondent, this Court finds that, in light of the subsequent events from the date of the June hearing, petitioner has not suffered any prejudice because of that delay nor because a second evidentiary hearing was held in this case.

The sudden and tragic death of our colleague, Judge Shell, caused the trial docket assigned to him to be held in abeyance while at the same time created an awesome and tremendous caseload for the district judges sitting in the Eastern District of Arkansas. At the time of his death, Judge Shell had several matters under advisement and besides reassigning these cases for determination, procedures had to be implemented for notification as to whether the parties desired rehearings or were in agreement that decisions could be rendered on the records previously made. The Court formulated the policy that if one party requested a rehearing, such request would be followed.

Petitioner's cause of action was heard by this Court as if no previous hearing had been held. This has resulted in this Court having the advantage of hearing the testimony of the witnesses in open court instead of reviewing the same from the cold record, as well as giving the attorneys the opportunity to present fresh legal arguments but-tressed by any factual averments which may have come to light subsequent to the June 8 hearing.

Furthermore, had it become necessary for this Court to render its decision from the record of the previous hearing, it would have been necessary to get a transcript of those proceedings which would have further delayed ultimate disposition. The Assistant Attorney General who represented respondent at the September hearing was not the same as counsel at the June hearing. It would have been impossible for her to submit a post-trial brief until she had an opportunity to review the transcript of the previous hearing.

In view of all these circumstances, this Court is unable to say that petitioner has suffered any prejudice as a result of any technical non-compliance by the State or as a result of a second hearing on the merits. Therefore, petitioner's motion to dismiss is denied.

In his initial pro se petition, petitioner raised three points which he alleged entitle him to habeas corpus relief. After an extensive evidentiary hearing and from the arguments in the briefs submitted by counsel, Point One appears to be the only area of major contention between the parties. This Court feels, however, that all three points should be discussed and decided for a full disposition of this case. Both attorneys have favored the Court with excellent and exhaustive briefs on all three points, and there is little dispute as to the factual developments of this case. The following memorandum opinion constitutes this Court's findings of fact and conclusions of law in accordance with Rule 52, Fed.R. Civ.P.

I.

Petitioner first alleges that he should be granted relief under his habeas corpus petition because the State of Arkansas failed to comply with the speedy trial provisions imposed under the Interstate Agreement on Detainers Act, Ark.Stat.Ann. Sec. 43-3201 et seq. (Repl.1977) (hereinafter referred to as the IAD or the Agreement), and as a result his correlative protected constitutional rights to a speedy trial and due process have been violated. It is this contention that has given the Court the most serious concern.

The chronological series of events can be ascertained from the transcript of the state proceedings as supplemented by the evidentiary hearing and stipulation entered of record. State criminal charges were filed against petitioner on April 2, 1970, but because several continuances were granted, (mostly at the request of petitioner and because of, in one instance, his failure to appear on the date set for trial), and other pretrial delays,¹ he was not brought to trial until over two years later. The relevant interim events for purposes of the speedy trial claim commence with the date of July 29, 1971 when petitioner began serving a federal sentence at the United States Penitentiary in Atlanta, Georgia. On September 29, 1971, the State of Arkansas lodged a detainer against the petitioner as notification to the federal institution in which he was incarcerated at the time that he was wanted to face pending criminal charges in this State.

Petitioner alleges that on October 4, 1971, while incarcerated in Georgia, he filed a pro se petition for a speedy trial on the charges pending against him in Arkansas. He was unable to substantiate this allegation by documentary evidence at the hearing, but he did testify that he took his pro se petition to his parole officer, asked him to notarize it and mail it to the proper authorities in Arkansas. Attached as Exhibit C to the Stipulation is a copy of what appears to be this notice petition, for it is a pleading styled Petition for Speedy Trial or Dismissal wherein defendant James Earl Young states there has been no attempt to bring him to trial on the state criminal charges of possession of stolen property. This pleading was notarized on October 4, 1971 by the caseworker at the United States Penitentiary in Georgia. Also attached as Exhibit C is petitioner's accompanying affidavit which is stamped RECEIVED, Oct. 8, 1971, PROSECUTING ATTORNEY. These two documents entered into the record pursuant to the Stipulation establish that the Office of the Prosecuting...