Tomas L. KOWALAK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 79-5177.
United States Court of Appeals, Sixth Circuit.
March 31, 1981.
645 F.2d 534
Argued June 18, 1980.
When a community is dissolved, the employee‘s spouse is thus entitled to be recognized as the owner of one-half the value of the right-to-share, insofar as attributable to the contributions paid into the fund as deferred compensation to the employee during the existence of the community.
In this quotation and elsewhere in the opinion both in T.L. James and in Sims, the Louisiana Supreme Court stressed that this interest of the spouse must be recognized “when the community is dissolved.” Sims v. Sims, 358 So.2d at 923, and “the right-to-share is a community asset which, at the dissolution of the community, must be so classified.” T.L. James, 332 So.2d at 851.
At the time the Edward J. Myers, Opal Myers marital community was dissolved there was no pension plan, there was no incorporeal movable right to be recognized even in the most contingent sense. There was nothing. Nothing was “acquired” during the existence of the community. It would be a distortion of the Louisiana law as exemplified in the T.L. James and the Sims cases to find a retroactive creation of a legal right in the community many years after the community had been dissolved. No cases in Louisiana law gives any indication that such an extreme principle, disturbing to so many established legal rights, should be found in the
Recognizing the “great deference” which this Court gives the interpretation of local law by the district judge, Black v. Fidelity & Guar. Ins. Underwriters, 582 F.2d 984, 987 (5th Cir. 1978), we conclude that the holding of the district court denying right of survivorship benefits to Opal Myers under Louisiana law should be affirmed, 488 F.Supp. 704.
The decision of the district court that ERISA does not preempt the Louisiana community property law is not before this Court on appeal. In any event, since the claim by Opal Myers is denied under Louisiana law, the issue of the effect of ERISA as possibly barring what otherwise might be a valid claim by Opal Myers is removed.
The decision of the district court denying Opal Myers’ claim of pension survivorship benefits from Plumbers by virtue of the earlier existence of a marital community with Edward J. Myers is AFFIRMED.
Edward Wishnow, Southfield, Mich., for petitioner-appellant.
James K. Robinson, U. S. Atty., Steven D. Weyhing, Asst. U. S. Atty., Detroit, Mich., for respondent-appellee.
Before EDWARDS, Chief Judge, MERRITT, Circuit Judge, and PECK, Senior Circuit Judge.
The defendant-appellant perfected this appeal from an order of the district court denying him relief under a motion filed pursuant to
If trial is not had on any indictment, information, or complaint contemplated herein prior to the prisoner‘s being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Appellant‘s contention was and is that he was entitled to the entry of “an order dismissing [the charge against him] with prejudice.”
The conviction which appellant collaterally attacks in his
On January 12, 1976, defendant-appellant had been arrested and charged under the federal complaint. At that time he was an
On April 1, pursuant to a second writ of habeas corpus ad prosequendum, appellant was again taken into federal custody, and on April 9 he pleaded guilty in the United States District Court to armed bank robbery. Thereafter, on April 12, he was returned to Jackson. Pursuant to still another writ of habeas corpus ad prosequendum, appellant was again brought back to federal custody, and on June 16 sentence was imposed, and he was again returned on that day to Jackson. On that day a federal detainer was also placed on the appellant, and receipt of the detainer was formally acknowledged on June 21, 1976, by the Superintendent of Records at Jackson.
On March 9, 1978, appellant filed the
In his memorandum opinion, the district judge stated that “[i]t is clear that in this case the provisions of the IAD were violated,” and neither party takes issue with that mixed finding of fact and conclusion of law. Implicit in that determination is the conclusion that, contrary to the government‘s argument, the fact that the first federal detainer was placed in the prison file at Jackson without a formal acknowledgment of such receipt having been recorded is without legal significance. Thus there is no occasion for a remand for the taking of evidence on this point. We adopt the district court‘s implicit conclusion as to the validity of that detainer.
In Mars v. United States, 615 F.2d 704 (6th Cir.), cert. denied, 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980) we held that a claim for relief on the ground of a violation of Art. IV(e) of the IAD was not cognizable under
In United States v. Eaddy (Eaddy II), 595 F.2d 341 (6th Cir. 1979), we held that the rights created by Article IV of the IAD are nonjurisdictional and waivable. We decided that Mr. Eaddy had forfeited his right to raise an IAD Article IV(e) violation by failing to assert it prior to or during trial in the district court. We reaffirmed this holding in Mars, where we concluded that that appellant had also waived any claim for relief under the IAD through his failure to raise that claim before trial. 615 F.2d at 707. The dissent appears to take the position that Eaddy and Mars are in conflict with our decision in Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In Stroble we granted
In the present case the appellant first raised his IAD claim after he had entered a plea of guilty and had been sentenced. A valid guilty plea is generally regarded as a waiver of all nonjurisdictional defects or errors. E. g., Franklin v. United States, 589 F.2d 192 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979); Camp v. United States, 587 F.2d 397 (8th Cir. 1978). This rule has been applied in the context of claims under the IAD. Camp, supra; United States v. Palmer, 574 F.2d 164, 167 (3d Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3097, 57 L.Ed.2d 1138 (1978) (“[T]he violation of a statutory provision such as Article IV(e) is not sufficiently important to deny a court jurisdiction to entertain a guilty plea where the defendant fails to raise the issue in a timely manner.“) It should be noted that in Palmer, which the district court entirely adopted, the defendant was the apparent beneficiary of a plea bargain. See 574 F.2d at 166 n. 3. One reading of Palmer is that a defendant is barred from asserting a possible IAD violation after a plea, when defendant has made a “rational and voluntary decision to accept the benefits of pleading guilty.” Id. at 166.
As we stated in Eaddy and reaffirmed in Mars, “to allow a person to assert violations of the Agreement [IAD] beyond the trial stage, without a showing of cause ... would ... undercut the policy of achieving prompt and final judgments.” 595 F.2d at 346; 615 F.2d at 707. Obviously, to permit the raising of IAD questions after a plea of guilty, entry of judgment, and sentencing involves the same concerns. We therefore conclude that entry of a plea of guilty is just as surely a waiver of the right to raise IAD violations as was the commencement of trial in Eaddy and in Mars. Both pleading guilty and standing trial are the sort of “affirmative request to be treated in a manner contrary to the procedures prescribed by Article IV(c) or (e)” that may constitute a voluntary waiver of IAD rights. 595 F.2d at 344.
The most disconcerting matter raised by the appellant‘s pro se petition to the district court concerned the competence of his former counsel. Appellant alleged that his defense counsel did not inform him of his rights under IAD and advised appellant that he could only fulfill his wish to remain in federal custody by pleading guilty to the federal charges against him. These allegations raise grave doubts about the quality of assistance which appellant received in making his guilty plea. Appellant‘s assertions are uncontradicted by the scant record before us, and it is clear that his former counsel was unaware of or chose to ignore the provisions of the IAD. In these circumstances we can only conclude that the district court abused its discretion in denying appellant‘s
This court‘s remand should not be interpreted as expressing or intimating a view on the question whether the failure of counsel to advise her client of his rights under the IAD is per se ineffective assistance of counsel.
Reversed and remanded for an evidentiary hearing.
EDWARDS, Chief Judge, dissenting in part and concurring in part.
I disagree strongly with the refusal to enforce the law set forth in the Interstate Agreement on Detainers and its interpretation by the United States Supreme Court in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978), and this court‘s interpretation in Stroble v. Anderson, 587 F.2d 830 (6th Cir. 1978), cert. denied, 440 U.S. 940, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). See also Mars v. United States, 615 F.2d 704, 708 (6th Cir.) (Edwards, dissenting), cert. denied, 449 U.S. 849, 101 S.Ct. 138, 66 L.Ed.2d 60 (1980).
I concur, however, with remand for consideration of the issue of ineffectiveness of counsel.
Notes
Article IV(c) requires a receiving state to begin a detainee‘s trial within 120 days. Mauro held that insistence by a defendant on a speedy trial stage, without a showing of cause would ... undercut the policy of achieving prompt and final judgments.” 595 F.2d at 346; 615 F.2d at 707. Obviously, to permit the raising of IAD questions after a plea of guilty, entry of judgment, and sentencing involves the same concerns. We therefore conclude that entry of a plea of guilty is just as surely a waiver of the right to raise IAD violations as was the commencement of trial in Eaddy and in Mars. Both pleading guilty and standing trial are the sort of “affirmative request to be treated in a manner contrary to the procedures prescribed by Article IV(c) or (e)” that may constitute a voluntary waiver of IAD rights. 595 F.2d at 344.
trial was sufficient to invoke this provision, even though the IAD was not specifically named in defendant‘s motions. See 436 U.S. at 364-65, 98 S.Ct. at 1849. This factual analysis would have been pointless if the Court were of the opinion that IAD rights could not be waived.
Neither of the two defendants in Mauro and the consolidated case had pleaded guilty. Nor had the defendant in Stroble. See 587 F.2d at 832.