Joseph Herbert Mars v. United States

MARS, Joseph Herbert

Petitioner-Appellant, America,

UNITED STATE S

Respondent-Appellee.

No. 79-5043. of Appeals, States

Sixth Circuit.

Argued June 1979.

Decided Jan. Rehearing

Rehearing and En Banc April

Denied Sasse, Detroit, Mich., peti-

Kenneth R. tioner-appellant. Robinson, Atty., K. S.U. Francis James. Zebot, Detroit, Mich.,

L. respondent-ap- pellee. EDWARDS, Judge,

Before Chief Circuit MERRITT, and CELEBREZZE and Circuit Judges.

CELEBREZZE, Judge. Circuit appeal This is before the court on from a entered the district denying appellant’s pe court after remand tition judgment pursuant for relief from F.Supp. (E.D.Mich. U.S.C. 2255. 463 On September appellant H. Joseph Mars was convicted of bank rob bery 2113(a) in violation of 18 U.S.C. year prison received a ten term to run con secutively with a six-month term for crimi contempt.1 presented nal The issues appellate review three: whether a vio Agreement lation of the Interstate on De tainers Act2 IAD or [hereinafter Act] 2255; Under whether U.S.C. appellant’s failure to raise his IAD claim trial constitutes a waiver Act; claim for relief under the whether Court’s decision in United States v.

receive application retroactive to the facts guilty contempt App. 1. Mars was found of criminal 2. 18 U.S.C. 2.§ obey directing for his refusal a court order produce handwriting exemplar. time, that the Government had the reasons stated violated Ar case. For the instant

of IV(e)4 by removing ticle of IAD below, we affirm. returning custody from and him to state Background I. Factual proceeding trial on without to the federal Initially, the district court denied charges.5 16,1975, July was indicted on Mars petition Mars’ because it concluded that rob- Michigan for bank of Eastern District prosequendum ad corpus writ of habeas was 2113(a). At of U.S.C. bery not a “written for custo serving was indictment Mars the time his dy availability” meaning within the to prison pursuant term year a two-fifteen IV(e) trigger Art. and therefore did not robbery. Prior for armed a state conviction appealed Mars provision’s sanctions. Government indictment to his federal court, we remanded to this and to facility state correctional directed to had reconsideration the district court for Mars. against a detainer officials Supreme Court’s decision in into 24, was taken July 1975 Mars On Mauro, 340, United States v. 436 U.S. to writ habe custody pursuant federal 1834, (1978).6 S. Ct. 31, ad July prosequendum. On as again custody On remand the district court denied to state Mars was returned appellant’s his motion for relief. The court having been tried on federal without prosequendum ad the Mauro decision should not be subsequent held that charges. A 11, 1975, and effect and even if it September accorded retroactive writ issued on custody. retroactively Mars effec- again applied, taken into federal was had Mars was fed being any by failing convicted on his to tively tried and waived IAD After state objection Mars was returned to to or trial.7 eral indictment raise his August 1975.3 This court custody on appeal This followed. February on Mars’ conviction

affirmed II. Discussion 1977. 551 F.2d Mauro, United States v. 21, 1977, petitioned the Mars January On 56 L.Ed.2d pursuant to 28 district court for relief alleged, the first Court held that U.S.C. § IV(c) equally applicable appellant’s Art. again on alle- was into federal to 3. Mars taken 3, 1975, sentencing, gations. the dis- December trict court year imposed a ten and one-half Thereafter, imprisonment. Mauro, term of Mars was 6. United States v. Reformatory. returned Ionia State 56 L.Ed.2d was decided while pending appeal. its this case was first part: specifically pertinent validi- provides decision undercut the IV of Mauro 4. Art. ty primary for the court’s basis district indictment, (e) If trial is not had on necessary A denial relief. remand was information, contemplated complaint here- determine three basic issues: whether Mauro by prior prisoner’s being returned applied retroactively; Sec- whether original place imprisonment pursuant appropriate tion 2255 is an means to raise IAD indictment, hereof, V(e), infor- article claims; and whether Mars waived of his mation, complaint shall not be of IAD claims. effect, further force or and the court shall dismissing prej- an enter order the same with particu- not The district did decide the udice. lar issue of whether way alleged Appellant to raise an IAD violat- claim. The district court also the Government effectively IV(c) claiming held that our remand had ed foreclosed Art. Act Govern- negative reasoning answer if within 120 we believed ment failed to commence his trial days inappropriate custody. 2255 was an his vehicle for relief arrival into federal we would never have remanded the That on that Mars case. district court determined had into remand days arrival conclusion was erroneous. We remanded the case cognizability of his IV(c) been tried within 120 specific instructions to was not decide the that Art. was, argued vigorously issue and our violated. This issue was appellate practice, appel- Regardless with established appeal by appellant. accordance to have that relief, initially issue decided in the dis- arguing basis lant’s fervor in IV(e) concerning court. following Art. trict discussion lodges the Federal Government federal charges, if the decision in [o]nce against a detainer with state States v. supra, given retroactive officials, Agreement by ex- the Government indeed violated Art. applicable press terms becomes and the IV(e) of the Act. comply provi- must with its Our initial inquiry must be whether Mars’ And once a detainer has been sions. prayer for relief based on the Government’s lodged, precipitat- had United States violation of the IAD is problems very ed the with which the Section 2255 prisoner entitles a Agreement concerned. is Because at that pursuant incarcerated to a judg point policies underlying Agree- ment of conviction post-conviction relief fully implicated, ment are we see no rea- grounds: on four imposed sentence vio give unduly meaning son to restrictive lates the constitution or laws of the United request to the term “written tempo- States; the court that entered the judg rary custody.” It matters not whether ment of jurisdiction conviction lacked to do presents the Government au- so; the sentence exceeds the maximum au sending thorities in piece State with a law; by thorized or the sentence “is other paper “request temporary labeled subject wise to collateral attack.” Hill v. custody” corpus or with a writ of habeas States, 424, United 426-27, 368 U.S. 82 S.Ct. prosequendum demanding ad prison- 468, 470, 7 (1962); L.Ed.2d 417 Huff v. presence er’s in federal court on a certain States, 860, United (8th 599 F.2d 863 Cir. day; in either case the United States is able obtain present case does not involve a claim

prisoner. Because the detainer remains of a constitutional violation nor is there lodged against prisoner until the un- doubt that the possessed trial court jurisdic- derlying charges finally resolved, tion appellant over the and the crime in- Agreement requires disposition that the Thus, volved.8 Mars’ 2255 claim for speedy relief and that it be obtained before must rest upon the allegation prisoner that his con- sending returned to the viction was in violation of the State. The fact “laws of States,” viz., brought IAD, violation of before the by District Court or “is subject otherwise means of a writ of habeas ad collateral at- tack.” prosequendum in way no reduces the need for prompt disposition In Davis States, v. United 333, 417 U.S. charges underlying the detainer. In this 2298, 94 S.Ct. L.Ed.2d 109 situation clearly permit would the Supreme Court stated that every not assert- United States to obliga- circumvent its ed error of law can be raised on a motion Agreement

tions under the to hold that for 2255 relief. In Davis the Court artic- prosequendum an ad may writ not be ulated the appropriate inquiry for deter- tempo- considered written mining when an asserted error may of law rary custody. form the basis for 2255 relief. We must “ 361-62, (footnote Id. at 98 S.Ct. at 1848 determine whether the error was ‘a fun- omitted). damental defect inherently results in a complete of the detainer which had been miscarriage justice’ and Mars, lodged against subsequent his remov- whether . presents] excep- ‘[i]t al custody pursuant from state to an ad tional circumstances where the need for the writ, prosequendum his return remedy and to state by afforded the writ of habeas cor- ” having been tried on pus apparent.’ without his Id. at 94 S.Ct. at suggest 1979), specifically 8. The seems to that a violation contrary, dissent Cir. held to the deprives jurisdictional “[njeither of the IAD is a trial stated does a violation of Article IV proceed power automatically strip with criminal subject court of the trial court of jurisdiction proceedings underlying on the indictment. Our decision in matter over the criminal Eaddy, (6th charges upon lodged.” 595 F.2d which the detainer was 1978); Edwards v. United Hill v. United 564 F.2d quoting 1977).9 424, 428, (2d 7 L.Ed.2d Timmreck, Accord, (1962). an alternative There exists basis L.Ed.2d which to affirm the upon (1979). Eaddy, In United States v. court. district appellant’s In our view instant 1979) 595 F.2d seri does rise to level of for relief not “prisoner rights by held that created IAD justifying 2255 relief. The ousness Agreement are waived forfeiture [IAD] prisoners charged with criminal of provides or default if raised protections concern important fenses appellant trial.” In the timing pro notice of various ing waived claim for relief have ceedings against The violation of the them. through his had under IAD failure to Mars, viz., protection asserted IAD “prior raise his or with was not returned to state he Eaddy, As we stated in allow a trial.” “[t]o having tried federal out been first on his prisoner to of Agree assert violations charges, falls short of “fundamental far stage, beyond ment the trial without a “complete miscarriage of causing defect” cause, showing ‘encourage piece would “exceptional or of circumstances” justice” litigation meal of claims error might justify Appellant 2255 relief. that policy undercut of achieving and display failed to how the Government’s has ” prompt judgments.’ and final at 595 F.2d any way IAD has in affect violation (citations omitted). 346 impugned- integrity the fact ed or remaining The issue to be decided con- finding process Additionally, trial. at his retroactivity Supreme cerns record an examination of the does not dis Mauro, v. Court decision in any close that violation Mars caused 340, 1834, 98 56 329 436 U.S. L.Ed.2d S.Ct. harm, pending either his defense to in above, unless we (1978). As stated accord charge to his status the state federal or Mauro deci- application retroactive system. Mars has failed to demon in the violation of the IAD occurred sion no transfers state and strate between our case. conclusions any prej caused actual waived IAD claim appellant has udice. 2255 is not an have had and that Therefore, join we the view of our broth- appellant’s IAD vehicle to raise second, eighth, ers ninth circuits claim, today whether we need not decide case, that in instances similar to the present Mauro applica- receive retroactive IAD claims are not under a mo- tion.10 v. United tion for See Huff 2255 relief. Accordingly, the district Hitch- (8th 599 1979); F.2d 860 Cir. v. cock United (9th 580 F.2d is affirmed. 964 Cir. Appellant actually prejudiced by argues the violations or that his that since has granted properly rights relief asserted before the trial to a state 28 properly U.S.C. 2254 not vindicated. for a violation IAD in court were Anderson, (6th Stroble v. 587 F.2d 830 Cir. only disclosed one case research has 10. Our denied, 1289, cert. 440 U.S. S.Ct. 99 Mitchell, discussing v. In Brown 598 this issue. appel 59 L.Ed.2d 499 we should accord 1979) (4th refus- the fourth circuit 835 F.2d lant the same relief under Stroble § 2255. apply v. Mauro States retroactive- United ed to presented this court was not with the issue retroactivity ly. in this area discussion of For a cognizability of IAD 2254 violations under § Huson, 97, 92 v. 404 U.S. Oil Co. Chevron see Therefore, did nor we decide that issue. we (1971); Linkletter v. S.Ct. find the dispositive Stroble decision not Walker, 85 S.Ct. L.Ed.2d 381 U.S. scope of § 2254 or 2255 relief. Denno, (1965); Stoval v. point following At this we add the caveat. (1967). also See 18 L.Ed.2d today Our decision does not foreclose § Calandrella, F.2d 236 States governmental relief for violations of the IAD petitioner instances where can he was show

EDWARDS, proposal Judge, dissenting. approved was reviewed Chief sponsored by jointly conference join I cannot Respectfully I dissent. Association, Correctional American holding the Interstate that a Governments, Council of State the Na Act for which Agreement on Detainers Association, tional Parole Probation and Congress provided the sanction of dismissal Legislative and the New York Joint Com cog- prejudice indictment with not Cooperation.17 mittee on Interstate Fol- corpus. nizable squarely held in United States Among persons the 60 in attendance at the representatives conference were of the United Department States of Justice. (1978)that the IAD is a federal L.Ed.2d 329 lowing Agree- the endorsement of the provision law. The IAD which was admit- conference, ment by this the Council of provides: tedly violated here State Governments included it within its “(e) If is not had on indict- trial Suggested Legislation Program State ment, information, complaint contem- prisoner’s be- plated hereby to the Agreement, adopted the form place ing original returned to the of im- the United States other member V(e), here- prisonment pursuant to article jurisdictions, findings upon sets of, indictment, information, forth com- Art. I. plaint shall be of further which is based and force “charges outstanding and the court shall enter an order It notes dismissing prejudice.” same against the with on un- prisoner, a detainers based indictments, informations, or com- tried just provision quoted the to Since served plaints securing speedy in and difficulties deprive jur- the federal district court of all persons already trial of incarcerated in trial, over isdiction Mars’ the defect in this jurisdictions, produce other uncertainties hardly could record more “fundamental.” prisoner which programs obstruct of Stroble, In United States F.2d 830 treatment and rehabilitation.” Accord- denied, cert. ingly, encourage to is the S.Ct. 59 L.Ed.2d 499 expeditious disposition charges of such granted a writ of provide cooperative procedures and to 2254 because of IV(e) of violation Art. of among member to States facilitate such the Interstate Agreement on Act. Detainers disposition. Stroble, we specific followed the inter The provisions Agree central IV(e) pretation the Art. IAD which ment are Art. Ill and Art. IV. Article the Supreme Court had provides III a procedure by pris which a adopted Mauro, in United States supra : against oner whom detainer been a has In United States v. filed can speedy disposition demand a (1978) charges giving the to the rise detainer. Supreme the pur- Court has defined the The warden of the in which institution pose of article IV and traced the role of prisoner the is required incarcerated is adopting in States it. inform promptly of the source and The Joint Committee on Detainers was against contents lodged detainer later auspices reconstituted under the him and right request of his final the Council of State Governments. Then disposition III(c). charges. Art. If known as the Committee on Detainers prisoner request, does such Sentencing and Release make a of Persons jurisdiction Offenses, Multiple Accused of it held that filed the detainer meetings must bring 1955and which days.18 resulted him to within trial development approval sev good For open court, cause shown with prisoner either the or present, his counsel proposals concerning eral detainers. jurisdiction having over the matter Among the proposals was a draft version grant any necessary or reasonable continu Agreement. April 1956 this ance. request oper- 111(a). prisoner’s Art. IV(e) requires And Art. receiving disposition request the final as a for ates try prisoner on State the outstand- underlying detain- charges untried of all ing charge before returning him to the State, Art. by that against him ers filed he was previously impris- State which a waiver of 111(d),and is deemed to be oned: 111(e). extradition. Art. “If trial had on indict- ment, information, means which provides IV or complaint Article con- a lodged has detainer prosecutor templated hereby prior who prisoner’s prisoner in another State can against a being returned to the original place of disposi prisoner’s presence secure imprisonment pursuant V(e) to article charges. outstanding Once tion of hereof, indictment, information, or prisoner, against has filed detainer complaint shall not be further made have him availa prosecutor can force or and the court shall en- officials of the by presenting to the ble dismissing ter an order the same with prisoner incarcerat State prejudice.” temporary cus request “a written ed V(c) similarly provides Article . . Art. tody availability or “indictment, information, complaint or IV(a) Article states: the basis of which the detainer has been jurisdiction appropriate “The officer of lodged” dismissed shall be if the indictment, information, in which complaint pending prisoner untried brought period is not to trial within the entitled to shall be have against lodged a detain- whom he IV(c). specified in Art. imprisonment serving who is a term of er and in ance tion of unequivocal Thus Art. IV is in its lan- any party State made available accord- V(a) upon presenta- article hereof guage is the interpretation and so a written custo- application availability dy authorities added). (Emphasis Court. prisoner is the State in which the incarcerat- of ed: F.2d at 836-838. Provided, having jurisdiction That the court of dismissal the indict- sanction indictment, information, complaint such shall have recorded, provided Art. IV for of the duly approved, ment failure and trans- further, request: provided That mitted the there And receiving compact try the party to thirty days period shall be a after prisoner days within 120 the same sanc- receipt by authorities before applicable government tion here where the honored, request period be within which the the Governor sending disap- State returning before him to try failed prove or state. availability, upon either own his motion prisoner.” upon motion of It is clear to me that the same identical Mauro, supra [, 1842-43. at S.Ct.] required sanction was and is in relation IV(a). required of court in this case as was this limitations, important previously Two Stroble. to, prosecuting placed referred on however, opinion, holds that majority authority pres- once has obtained Agree- clear of the Interstate this violation prisoner pursuant to Art. IV. ence of a cognizable Act “is not ment Detainers IV(c) Art. states that 2255” “the vio- ... because respect proceeding made “[i]n protection asserted lation article, trial possible by shall this far short of a ‘funda- Mars . . falls hundred, and commenced within one ”... that “the defect’ mental days pris- of the twenty of the arrival involve . . case does not State, but for receiving oner in the possessed jurisdic- court that the trial doubt court, the good open cause shown in- appellant and the crime tion over the being present, prisoner his counsel not dis- “the record does volved” and that having jurisdiction the court Mars the violation caused close necessary or rea- may grant any matter harm.” sonable continuance.” fact, however, (1979), the serving .Supreme Mars is a 10-

year prison term conviction on comply federal after held that failure to Court exact an indictment as to which federal law in the detail with Rule of the Federal Rules of Agreement on Detainers Act had Interstate Procedure, Criminal was not required under the admitted specifically Timmreck, corpus. the defend- record “such indictment facts in this possible ant was sentence but warned any further . shall not be of force mandatory three-year not of an additional enter an and the court shall order failure parole term. The Timmreck was a dismissing prejudice.” same with is, procedural minor of a rule. It violation Stroble, recognized As su- course, cry a far from a violation of law pra : Congress judged which the serious stringent enforcement sanction of Ar- enough statutory to warrant declaration (“dismissal V(c)

ticle indictment that the indictment must be dismissed with prejudice”) requires showing no of prejudice. prejudice. Cognizability thorough- under 2255 was states, District of When Colum- ly analyzed by Mr. Justice in his Stewart bia, Government, opinion for court in Davis v. United acting through Congress and the Presi- States, 417 U.S. dent, I.A.D., entered into the each of the (1974): L.Ed.2d 109 participants yielded some small meas- the Solicitor General contends that we sovereignty. Agreement ure of its affirm was written with meticulous care. It of Appeals petitioner’s because the claim anticipated possibility even (Brief is not “of constitutional dimension” might terms have effects harsh if em- 34) for United States thus is not ployed by state igno- officials who were cognizable in a proceed- 2255 collateral Agreement specif- rant of its terms. The outset, ing. At the we note that ically provided: position support Government’s finds scant party agreement “Each State to this permits the text which designate who, shall acting officer assert a that his

jointly with party like officers other is “in confinement the Consti- promulgate shall rules and reg- tution or laws of the United States.” carry ulations to more effectively out added.) (Emphasis provisions agree- terms and of this ment, provide, and who shall within It argued forcefully dissenting ain State, and without the information nec- opinion today language, that this essary operation to the effective of this appears in the first paragraph agreement.’.’ Art. VII. qualified by para- somehow the third The Agreement provided also in Article graph statute, provides: of the IX, agreement “This be liberally shall “If the the judgment court finds that construed so as to pur- effectuate its jurisdiction, was without rendered poses.” 587 F.2d at 839-840. that the sentence was imposed not au- There be that can no doubt open thorized law or otherwise to squarely found in Stroble that a violation of attack, collateral or that there has been the triggered IAD which the sanction of or infringement a denial prejudice” dismissal the “with indictment rights constitutional as was a federal law and that we to the judgment render vulnerable to cognizance corpus took in a habeas action. attack, the shall collateral vacate and set the Further; no side shall case relied the upon by majority discharge prisoner or resentence opinion sup- the serves to port grant the result reached him or a new trial or correct therein. United the Timmreck, States v. may appear appropriate.” 99 S.Ct. sentence as REHNQUIST ground that is in person] the Mr. Justice “[a The dissent language or laws the in violation Constitution suggestion that rejects any (Empha- other- the . . treaties of United States.” concerning “sentence[s] added.) Furthermore, en- although can collateral attack” sis open to wise REHNQUIST un- that a confinement of Mr. dissent Justice de- compass a “laws of violates the view sentence rides the that the words “otherwise der that States,” this contending that collateral are open to attack” intended to United re- remaining language phrase,” at post, reduce “a catch-all would be of con- infringement history “a denial garding legislative fully supports that Indeed, rights” surplusage. to Congress recommending stitutional to view. is that 2255“does the dissent § nub of eventually what became Judi- § illegal an ‘confinement’ speak on Habeas cial Conference Committee conviction, illegal . or even of Procedure that Corpus state mo- “[t]he Post, at illegal sentences.” but rather all remedy broadly tion covers situations Although (Emphasis original.) in ‘open where the sentence is to collateral surely analysis of 2255 microscopic § this remedy, attack.’ As a it is intended language is statutory shows that corpus.” broad as as habeas lacking precision, the result- somewhat microscopic reading of No can § dissenting opinion ing that the shadow simple escape either the clear and lan- disap- totally the statute cast over would authorizing habeas guage of cor- legislative history. of its pears pris- pus ground relief “on [the makes history clear That of the . in violation oner] prisoners afford federal intended to was laws ... of the United States” or scope habe- to federal remedy identical history unambiguous legislative show- pointed out in as As the Court corpus. ing that 2255 was intended mirror Hayman, v. United States operative effect. [263], 96 L.Ed. 232 72 S.Ct. 342-344, Id. at at 2303.1 “history of Section 2255 shows Mauro recognize post I one case passed at the instance of the that it was support Eighth Circuit does from practical dif- Judicial Conference meet opinion prepared position taken administering had arisen in ficulties that court. See Huff v. United jurisdiction corpus of the fed- habeas 1979).2 In 862-63 addi- F.2d history of eral Nowhere in the courts. support tion there is dicta which lends any purpose do we find Section 2255 panel. our opinion drafted for rights of collater- impinge upon prisoners’ Edwards opinion Circuit’s v. Second upon al their convictions. On attack (2nd 564 F.2d 652 to mini- contrary, the sole was however, authority is not for our encountered in habe- mize the difficulties since it was decided to the now hearings by affording the same corpus as controlling case of rights another and more convenient supra. Thus, doubt there can be no forum.” Stroble, supra, grounds for relief under § that the directly point. Circuit case I encompassed by only Sixth equivalent to those overruling no basis for it sub silen- general can find statute, is available on or otherwise. under which relief tio Magistrate 1. v. in connection with those [federal See also Kaufman (1969). Thereafter, charges. was income he re- tax] trial.” turned to state to await Our v. United 580 F.2d 964 Hitchcock case does not such brief instant deal (9th the Ninth Circuit found that from state for the removal plaintiff’s claims were not prompt appearance in a re- federal court of habeas 2255 where “Pursuant to a writ custody. turn to state prosequendum, was taken from ad July brought before a state case con- posed by this issue

The third Mau- INC., Petitioner, v. COPYSETTE, not United States whether or cerns HURON effect. given retroactive be ro should v. in a presented issue and if When LABOR RELATIONS NATIONAL inclined to case, presently I am proper BOARD, Respondent. holding of the Fourth Cir- agree with the should not No. 77-1626. v. Mauro cuit that which have retroactively to cases applied Appeals, United States Court Mauro. Brown prior to See become final Circuit. Sixth Mitchell, 837-38 F.2d Feb. view, however, that our of the fact appellaté process current case was Mauro, supra, was

when United States

decided, retro- delay I would decision on the

activity presented until we are with a issue complet-

case which had been initiated and decided.

ed before Mauro was

For the reasons stated above the writ

should issue.

ORDER. EDWARDS, Judge,

Before Chief CELE- MERRITT, Judges.

BREZZE Circuit

Plaintiff-appellant’s petition for rehear-

ing having come on to be considered and of judges regular of this who are in majority having

active service less than a banc, ordering

favored consideration en

petition panel referred to the been appearing appeal,

heard the and it further petition rehearing presents for no

issues which were not considered

panel Judge Edwards and with Chief

adhereing to his dissent. petition

IT ORDERED IS

rehearing hereby be and denied. Boonstra, Gregory Kopacz, M.

Earl R. Gossett, Dykema, Spencer, Goodnow & Detroit, Mich., petitioner. Trigg, Moore, Higman, Victoria Elliott Elinor Stillman, Counsel, Deputy Associate Gen. Deitch, B., Lynne Washington, R. D. N. L. C., Farkas, Region Emil Director N. L. C. Cincinnati, Ohio, B., respondent. R.

Case Details

Case Name: Joseph Herbert Mars v. United States

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 7, 1980

Citation: 615 F.2d 704

Docket Number: 79-5043

Court Abbreviation: 6th Cir.