Petition — Foran v. Metz

Supreme Court, U. &

FILED

In The

MAY 7 1979

Supreme Qourt uf the United EAP onan, ccm

-_-—— <—

>

October Term, 1978

nw T8"1LE82

JOHN FORAN,

Petitioner,

Vs.

HON. PAUL METZ, as Superintendent of Great Meadow

Correctional Facility.

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR’ THE

SECOND CIRCUIT

ROBERT EE. GREEN

Attorney for Petitioner

118-21 Queens Boulevard

Kew Gardens, New York 11415

(212) 261-3000

2208 LUTZ APPELLATE PRINTERS, ING

law and Financial Printing

South River, NJ New York, N.Y. Philadelphia, Pa) Washington, 1D ¢

(201) 257-6850 (212) K40-9494 (215) 5643-5587 (202) 7R4-72RK

TABLE OF CONTENTS

Page

Opinions and Judgment Below ...........0:e eee ee eeeee 2

PA cis. « cicRe cde GEwURS dE besa c eb ee eccceseces 2

I UII bc a caleesnecedcccccnessacconvensccces 2

SE EE Dec eU cede bad saedaesonscvscrsreccacecs 2

each crease pacceconvcveccsas 4

Reason for Granting the Writ:

Petitioner's Fourteenth Amendment rights to due process

of law were denied by failing to bring him to trial within

one hundred eighty days of the lodging of a detainer with

the warden of the federal penitentiary in which he was

serving a federal sentence and one hundred twenty days

of his arrival within State jurisdiction. .............. 14

EES ne EI ee rr 22

TABLE OF CITATIONS

Cases Cited:

Strunk v. United States, 412 U.S. 434 (1973) ............ 20

United States v. Favaloro, 493 F.2d 623 (2nd Cir. 1974) .. 20

United States v. Ford, 550 F.2d 732 (2nd Cir. 1977) ... 15, 18

Walker v. King, 448 F. Supp. 58 (S.D.N.Y. 1978) ....... 19

ul

Contents

Page

Statutes Cited:

Ef ay ee re PP ee ree re eter er eT ee Cee 2

De ea ee ieee cakegens | OANA Se ere ae 18

ee EE aN cea es SC KENS Ko RRR EA eae TOES e ae ek 18

New York Criminal Procedure Law, Section 580.20 ..... 2, 16

United States Constitution Cited:

ES coin see ee eases sh eb hud dak Veea wks O8 %, 19

FINN PRIN ns cc aciawd caso boss 6-4 oe eae us ES: 14

APPENDIX

Judgment of the United States Court of Appeals for the

GON ne aa WEl bd daea ed KAR cae PeUeb Es Gee la

Memorandum Decision of the United States District Court

for the Southern District of New York ............0e. 3a

4

In The

Supreme Court of the United States

——_@—

October Term, 1978

No.

JOHN FORAN,

Petitioner,

VS.

HON. PAUL METZ, as Superintendent of Great Meadow

Correctional Facility,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner respectfully petitions for a writ of certiorari for

leave to appeal from the judgment of the United States Court of

Appeals for the Second Circuit, entered on the 6th day of April,

1979, affirming the judgment entered in the United States

District Court for the Southern District (Cannella, J.), entered

the 9th day of January, 1979, dismissing petitioner's petition for

a writ of habeas corpus to release him from custody pursuant to

a judgment of conviction entered on the 18th day of February,

1975 in New York County Supreme Court, sentencing him to a

term of seven to twenty-one years, affirmed by the Appellate

Division, First Department without opinion and leave having

been denied to appeal to the New York Court of Appeals.

OPINIONS AND JUDGMENT BELOW

The judgment ot the United States Court of Appeals tor the

Second Circuit entered April 6th, 1979, affirming the judgment

dismissing the petition for a writ of habeas corpus was affirmed

on the opinion below of the Hon. John M. Cannella, 78 Civ. 81

(S.D.N.Y. Jan. 9, 1979), to the extent that it found no violation

of the Interstate Agreement on Detainers (Appendix, la)

JURISDICTION

The jurisdiction of this Court ts invoked for a petition fora

writ of certiorari to review the affirmance of the United States

Court of Appeals for the Second Circuit pursuant to 28 U.S.C.

§1254.

QUESTION PRESENTED

|. Does the tatlure of State authorities to bring a federal

prisoner to trial within the limitations periods prescribed in the

Interstate Detainer Act deprive the prisoner of his constitutional

rights secured by the speedy trial safeguards of the Sixth

Amendment and due process of law safeguard of the Fourteenth

Amendment?

2. Do the limitations periods prescribed in the Interstate

Detainer Act, for bringing a prisoner from another jurisdiction

to trial, take into account ordinary cause for delay of the trial,

such as motion practice, and thereby prohibit extensions of the

limitations periods prescribed for such ordinary cause?

STATUTE INVOLVED

Section 580.20, New York Criminal Procedure Law

provides:

we

“ARTICLE I

(a) Whenever a person has entered upon a

term of imprisonment in a penal or correctional

institution of a party state, and whenever during

the continuance of the term of imprisonment

there is pending in any other party state any

untried indictment, information or complaint on

the basis of which a detainer has been lodged

against the prisoner, he shall be brought to trial

within one hundred cighty days after he shall

have caused to be delivered to the prosecuting

officer and the appropriate court) of — the

prosecuting officer's jurisdiction written notice of

the place of his imprisonment and his request for

a final disposition to be made of the indictment,

information or complaint, provided that for good

cause shown in open court, the prisoner or his

counsel being present, the court) having

jurisdiction of the matter may = grant any

necessary or reasonable continuance. . . .”

“ARTICLE IV

(c) In respect of any proceeding made

possible by this Article, trial shall be commenced

within one hundred twenty days of the arrival of

the prisoner in the receiving state, but for good

cause shown in open court, the prisoner or his

counsel being present, the court having

jurisdiction of the matter may grant) any

necessary or reasonable continuance.”

4

STATEMENT OF THE CASE

On the 30th day of March, 1973, the Grand Jury of New

York County Supreme Court indicted petitioner John Foran

and co-defendants Charles Cumella and James Mooney, for

attempted murder and assault in the first degree. The cause for

the accusation was the shooting of Monroe Robinson that took

place on the 2Ist day of September, 1972, at 5:00 A.M. on

Lenox Avenue, near 116th Street. Robinson was accompanied

by Rose Ann Sessoms at the time. Trial commenced October 17,

1974. Petitioner was tried jointly with co-defendants Cumella

and Mooney. Robinson, although shot several times, survived

the attack,

The suspects, although arrested on September 21, 1972,

were not indicted until March 30, 1973. All three were treed on

bail. However, Cumella and petitioner had pending indictments

against them on unconnected federal charges and were brought

to trial and convicted. On the 12th day of September, 1973, they

were sentenced by the United States District Court for the

Eastern District of New York. In September of 1973, counsel for

petitioner requested Assistant District Attorney Michael Toolan,

to obtain custody of petitioner from. the Superintendent of

Lewisburg Correctional Facility pursuant to the provisions of

the Interstate Detainer Agreement in order to face the pending

State charges.

However, it was not until the 20th day of March, 1974, that

petitioner was produced at the Manhattan House of Detention,

pursuant to a warrant issued by Supreme Court Justice Joseph

A. Martinis lodged as a detainer for petitioner on the 24th day

of January, 1974 with the warden of the federal penitentiary in

Lewisburg, where petitioner was then serving his federal

sentence.

Petitioner moved the court on the 13th day of June, 1974,

returnable the 24th day of June, to dismiss the indictment for

denial of a speedy trial.

On July &, 1974, Justice Gerald P. Cullen, made light of

petitioner's right to-a speedy trial:

“What you call a speedy trial, I'd like to know.

You can't spell it out in black and white. There ts

no such thing. Speedy trial is when everyone ts

ready and prepared to go. That kind of situation

happens about once every eight months. No. 1,

everybody has to be here, including the

defendants. We have to have a Part, the District

Attorney's witnesses and everything else. Nobody

is ready to die but they all do sooner or later, so

what's the sense of talking about speedy.”

Petitioner not only moved to dismiss for denial of a speedy trial,

but objected to any further adjournment. Although the case was

put over for one week, to July 15, 1974, Assistant District

Attorney Irom made the announcement that Assistant District

Attorney Toolan, in charge of the prosecution, was going on

vacation “starting Thursday. He won't be here next Monday

anyway.” The following colloquy ensued:

“Mr. Green: That is unfortunate, but I don't

think that should be any legal reason for an

adjournment.

Mr. Irom: I'm not saying it is. I'm just

saying he won't be here.

Mr. Green: | don't know how many

Assistant D.A.’s there are in N.Y. County, but

there are many others who can try the case.

The Court: | suppose there are counselor,

but you know as well as I do that when a lawyer

will come in and say “I’m not familiar with the

case, T'll have to check it out’ and all that stuff.

So you are back where you started from.”

6

Ihe court delayed the case in order to decide petitioner's

motion for a speedy trial. On July 22,1977, the case was again

adjourned over objection of petitioner, with Assistant District

Attorney Toolan sti!l away on vacation, to afford the court

additional time to decide the motion to dismiss the indictment

for denial of a speedy trial. The motion was denied.

Petitioner then moved the court, in writing, returnable July

26, 1974, to dismiss the case for deley in excess of 120 days from

the time he was produced pursuant to the Interstate Detainer

Agreement. Petitioner also objected to any further delay for any

reason indicating his readiness to proceed to trial. The court put

the case over, sua sponte, over objection on grounds the

Assistant District Attorney was still on vacation.

On the Ist day of August, 1974, the office of the District

Attorney continued to treat lightly petitoner’s motion to dismiss

the indictment for failure to bring him to trial in the required

120 days from his arrival in the jurisdiction.

Justice Melia, to whom the case was transferred, reminded

Assistant District Attorney Littman, substituting for Toolan still

on vacation, of the serious question raised:

“The Court: Mr. Littman, we have a

question of law here whether or not this Court

has any jurisdiction whatsoever to even grant an

adjournment. Now, you say you're not familiar

with the case, and I can understand that, but as

far as the law is concerned, the District Attorney

is responsible for coming in here with some

answers to this question.”

When pressed, Assistant District Attorney Littman gave the

following explanation for the delay:

“Mr. Littman: | am aware of the agreement

on detainers. My understanding is, if a good

7

cause is shown, there is always reason for the

matter to be tried after 120 days.

| would suggest to this Court, and I can only

suggest it in the broadest terms because as I said

before, I'm not intimately familiar with the facts,

that (a) good cause shown may be shown by the

fact there are approximately 400 defendants

incarcerated -400 outstanding homicide cases to

be tried in Manhattan, of which

The Court: Mr. Littman

Mr. Littman: Your Honor, if I could just

The Court: Mr. Littman, no, I'm not letting

you finish. I,don’t want, on a serious matter like

this, for someone to step in the courtroom and

speak like that. This is a very serious legal

question. The least the District Attorney owes to

the Court is a responsible affidavit, and, in an

instance of this kind, a memorandum of law,

which should be here now.”

Over objection of petitioner, the case was further adjourned to

August 8th. Thus, instead of commencing the trial, the court

delayed the case to afford the District Attorney opportunity to

submit a memorandum of law to try to justify delay in the past,

disregarding delay at that very time.

On August 5, 1974, the case again appeared on the

calendar. Assistant District Attorney Toolan was back by then

from his vacation. Petitioner made it clear that he was ready to

proceed to trial at that time. Assistant District Attorney Toolan

made the following representation:

“Your Honor, as I stated in a prior affidavit

with Justice Culkin on the motion which I

answered before leaving on vacation, the People

stated that they would be ready to proceed with

the trial of this action in the August term, and

the Court ordered at that time that the case be

tried during the August term.”

Counsel for petitioner made his position clear:

“Mr. Green: The first motion was not based

on the interstate agreement on detainers. It was

just a motion addressed to the fact the People did

not prosecute. hat was returnable originally

June 24th. Now, the 120 days then expired July

16th. When that ran, then I made my second

motion... .”

The court then affirmed that unless the indictment is dismissed

9

A short history of this case, Judge. The

defendants were arrested in September, 1972. In

November they waived the case to the grand jury.

Apparently the case was presented twice to the

grand jury and an indictment was handed up in

April of 1973. The defendant Foran’ was

sentenced in September of 1973 to seven years in

Federal Penitentiary. One hundred twenty days

after that the sentence was reduced by one year,

which has nothing to do with this case. | notified

Mr. Toolan in September 1973 that the

defendants were, in fact, incarcerated in the

federal prison in Lewisburg, that I wished they be

returned and they wanted to proceed to trial.

Mr. Toolan in his affidavit opposing a

‘previous motion to dismiss for lack of

for violation of the Sixth Amendment right to a speedy trial or prosecution states that on October 2nd_ he

denial of the Interstate Detainer Agreement, the case would informed the Court, in open Court, that he

proceed to trial on August 8th: would produce the def idants back to this

“The Court: Well, I adjourned it until the

8th; that is, the two motions. Now I'll give Mr.

Toolan—it’s because Mr. Toolan was on

vacation last week that I put it over to the 8th, so

I'll leave the 8th stand with the understanding

that if I rule against the defense on that day, both

sides proceed right to trial.”

On August 8, 1974, petitioner pressed his motion to dismiss the

indictment:

“Mr. Green: If your Honor, pleases, in

behalf of defendant John Foran, as the Court

well knows, this is a motion to dismiss the

indictment, with prejudice, pursuant to the

Interstate Agreement on Detainers.

jurisdiction pursuant to the Interstate Agreement

on Detainers. They were not produced, and as

the Court well knows, it was not incumbent upon

the defendants to produce themselves but rather

upon the prosecution to have them produced.

They were not produced until March of 1974. I

believe the exact date, Judge, was March 19,

1974.

Now, since that time, Judge, the defendant

Foran has been ready on each and every

occasion. He has never requested an

adjournment. His motions had been made in

Motion Part 30 prior to his sentence in the

federal court.

It is my position, Judge, that this indictment

should be dismissed, with prejudice, due to the

10

failure of the People to try this defendant within

120 days.

Now, Mr. Toolan, in his affidavit in

Opposition, cites one reason for the adjournment,

that he was engaged starting March 21st before

another judge of this court. I don’t doubt this as

a fact, Judge. However, when Mr. Toolan

produced these defendants for trial in March, it

could mean only one thing, that the People of the

State of New York were ready to try them, be it

Mr. Toolan or be it one of the other hundred or

more assistants in the prosecutor's office. | don't

believe, Judge, the fact that Mr. Toolan himself

was engaged is a legal excuse for any delay

caused in this case.

As i said, the defendants had been arrested

in September, 1972, and certainly if Mr. Toolan

could not proceed, it was incumbent upon him to

give this file to another assistant district attorney,

particularly since he had told the Court the

October before that he would produce these

prisoners, and producing them had to mean only

one thing legally, Judge, that when they were

produced, he was ready to try them.

Now, Mr. Toolan cites another reason,

vacation. | returned from my vacation to try this

case. | don’t believe a vacation by an assistant

district attorney is a reason, when the case will be

two years old in September, nor are vacations by

any officers of the Police Department any reason,

particularly, again, Judge, he talked about

vacations in July when the defendants were

produced before this Court, before this

jurisdiction, the March prior to that.

11

I respectfully submit to this Court, Judge,

that the statute is specific, that they must be tried

within the 120 days unless good cause is shown,

and | would respectfully submit to this Court

that Mr. Toolan or the D.A.’s office has not

shown good cause.

1 would like to point out, Judge, that on

each time a motion was made to dismiss, the

People were never ready. Every application,

every adjournment in this case since the return of

the defendants regarding my client John Foran

has been at the application of the People.”

When the court raised the issue that defendant Cumella had

brought on a motion to inspect the Grand Jury minutes and to

dismiss the indictment, or in the alternative, for a bill of

particulars, it was developed that petitioner had made such

motion, but prior to his federal conviction. Moreover, it was

further developed that said motion could have been resolved in a

matter of days, and that, indeed, the 120 day period to bring a

defendant returned to the jurisdiction for trial, contemplates that

the usual motions will be made during that period since the

presumption is that the prosecution is ready for trial when it

produces them.

Assistant District Attorney Toolan. replied:

“Now I listed in my answering affidavit to

Mr. Green's papers to show oniy the

chronological history that I was on vacation in

July. Certain adjournments occurred in July on

the motions and | wasn't here. In closing my

affidavit, the Court will note I never cited in my

application I was on vacation as a good-cause

basis. I did cite for the Court's benefit the fact

that certain key witnesses were unavailable,

through no fault of the People, and I was on trial

12

for approximately 30 days during the 120 day

period, and . ‘so I'd like to point out to the Court

that in May of this year the Administrative Judge

of this Court, Justice Ross, conferenced all old

homicide cases. Each assistant was almost

required to be in court on a daily basis in Part 36

on the Conference Calendar to aid and assist in a

disposition of the tremendous backlog of prison-

homicide cases, and this deponent in these papers

was ‘n court almost on a daily basis in that

instance and | cite that as certainly good cause.”

The court denied the motion, ruling as follows:

“Now, ne ground presented by the District

Attorney was the fact he was on trial for the

period set forth. Certainly that is good cause.

Counsel for the defense at that point would

have the District Attorney's office immediately

transfer that case to another assistant to try.

Well, there is no such requirement. Indeed, that

is most unreasonable. .. . That was a necessary

and reasonable postponement for that reason.

Now there was an omnibus motion pending

for part of the time. That is as to one defendant.

Mr. Green says, “Well, you can’t hold that against

me and my client.’ If that be a reasonable

argument, it would then flow that Mr. Green is

saying the District Attorney then would have to

go to trial as against the other two, and then

later, after the omnibus motion was decided, go

io trial with the third. Well, that’s an unnecessary

waste of court time which is a luxury that we

cannot indulge ourselves in today with the

crowded calendar situation that we have.

13

There was a motion pending. Till that

motion is decided, within a reasonable time, and

certainly the time indicated is not unreasonable, a

motion made dated May 3rd and decided May

30th, “74, | think that was a necessary and

reasonable continuance under the circumstances

of the calendar conditions in this court, in this

county.

Then there is something to do with

availability of witnesses and the District

Attorney’s vacation. Mr. Green, in effect, says

the District Attorney isn't entitled to a vacation.

That’s what it adds up to. If the District Attorney

could not go on vacation because he had a case

to try he would never get one because he always

has a case to try.

Under all of the facts and circumstances, it

seems to me that this statute has not been

violated and that the modification necessary or

reasonable for a continuance prevails.

Accordingly, the motion to dismiss on that

ground is denied. The People answered that,

outside of that, they're ready for trial. The

motion is denied.”

However, the court still did not afford petitioner a trial

until October 17, 1974, twenty-five months after his arrest for

the crime, thirteen months after his demand to be produced for

trial pursuant to the Interstate Detainer Agreement, seven

months after his production within the jurisdiction for trial, and

seventy days after denying his motion to dismiss the indictment

for failure to bring him to trial within one hundred twenty days.

14

REASON FOR GRANTING THE WRIT

Petitioner's Fourteenth Amendment rights to due process of

law were denied by failing to bring him to trial within one

hundred eighty days of the lodging of a detainer with the warden

of the federal penitentiary in which he was serving a federal

sentence and one hundred twenty days of his arrival within State

jurisdiction.

On the 21st day of September 1972, the day of the assault,

petitioner and co-defendants, Cumella and Mooney, were

arrested for attempted murder. Not untit March of 1973, did a

Grand Jury finally hand down an indictment, charging them

with the crime. Thereafter, petitioner and Cumella_ were

convicted upon a plea of guilty in the United States District

Court for the Eastern District of New York, for the crime of

extortion. Petitioner was sentenced to a seven year term, later

reduced to six years, and sent to Lewisburg Correctional Facility

for execution of his sentence. ;

In September of 1973, pursuant to the Interstate Detainer

Agreement, codified in Section 580.20, New York Criminal

Procedure Law, petitioner's attorney demanded of Assistant

District Attorney Michael Toolan that petitionc: be returned to

the jurisdiction to face the pending attempted murder

indictment. Toolan immediately commenced proceedings to

return petitioner for trial. On the 24th day of January, 1974, a

detainer was lodged with the warden of the federal penitentiary

at Lewisburg. On March 20, 1974, petitioner was produced in

New York City for such purpose. It is undisputed that petitioner

was not brought to trial within the required one hundred eighty

days of the filing of the detainer on January 24, 1974. On appeal

to the Appellate Division, First Department, the State argued

that the one hundred eighty day period did not commence to

run at any time because counsel for petitioner gave the District

Attorney oral notice, rather than written notice to produce

petitioner for trial. Short shift can be made for such frivolous

15

argument. The fact is that Assistant District Attorney loolan

did not object to oral notice and proceeded to comply with the

provisions of the “Interstate Agreement” by immediately taking

steps to return petitioner and Cumella for trial, lodging a

detainer on the 24th day of January, 1974 with the warden of

Lewisburg penitentiary. (At this time, co-defendant Mooney was

still out on bail.)

Assistant District Attorney Toolan made no objection to

the oral notice afforded him, but complied with the provisions of

the Interstate Detainer Agreement to the extent of lodging a

detainer with federal prison authorities, thereby starting the

running of the applicable Statute of Limitations. Therefore,

Assistant District Attorney Toomey waived written notice by

accepting oral notice and acting on it. Nor does he make any

showing how oral notice prejudiced the State.

The next issue is whether the State made any application in

“open court” for an extension of the respective required one

hundred eighty day and one hundred twenty day periods

required for trial, for “good cause” or otherwise. The record is

clear that no such extension was requested. Instead, on the

arrival of petitioner on March 20, 1974 within the jurisdiction,

Mr. Toolan went to trial on another case, without making any

application to afford petitioner opportunity to be heard. In

United States v. Ford, 550 F.2d 732 (2nd Cir. 1977), the court of

appeals wrote, “We have previously emphasized outside of the

context of the Detainers Act, the importance of granting the

defendant an opportunity to be heard before granting an

extended criminal trial continuance.” The Ford court also held

that calendar congestion is no excuse for the deprivation of a

speedy trial, within the framework of the Interstate Detainer

Agreement.

Thus, it is not necessary to go beyond the one hundred

eighty day requirement. The burden was on the prosecution to

bring petitioner to trial within such period. The prosecution

°

16

failed to do so and failed to make an open court application for

an extension on a showing of reasonable grounds for delay.

Indeed, had petitioner been brought to trial promptly upon his

arrival in New York, the one hundred eighty day requirement

would probably have been met. It is submitted that the one

hundred eighty day requirement is for the purpose of affording a

prosecutor opportunity to produce a prisoner and the longer it

takes to produce him, the shorter the time he has to bring him to

trial once he has been returned to the jurisdiction. Assuming the

one hundred eighty days began to run on January 24, 1974 when

the detainer was lodged, the State lost jurisdiction to bring

petitioner to trial when it failed to do so by July 24, 1974.

When a prisoner has been immediately returned to the

jurisdiction for trial, the outside time for bringing him to trial is

one hundred twenty days, as set forth in Section 580.20, supra:

“(c) In respect to any proceeding made

possible by this Article, trial shall be commenced

within one hundred twenty days of the arrival of

the prisoner in the receiving state, but for good

cause shown in open court, the prisoner or his

counsel being present, the court having

jurisdiction of the matter may grant any

necessary or reasonable continuance.”

it is strongly submitted that any interpretation afforded Section

580.20 to afford the prosecution one hundred eighty plus one

hundred twenty days to bring a prisoner to trial is clearly

fallacious. It is submitted that subdivision (c) is only applicable

where a prisoner has been produced within sixty days of his

demand. It serves to shorten the period of time the State has to

bring him to trial, not to lengthen it. The purpose of the

Interstate Detainer Agreement is to drastically abbreviate the

period of time afforded the State to bring a prisoner to trial, in

order not to interfere with rehabilitation programs, parole

programs and the like, on the sentence he is already serving, and

to reduce tension by the prisoner in order to keep him in a

mental frame for such rehabilitation programs.

17

The State further violated the provisions of the Interstate

Detainer Agreement, since petitioner was not brought to trial

until seven months from his arrival within the jurisdiction.

Prior to his trial and conviction in federal court, in 1973

petitioner had moved to inspect the Grand Jury minutes and to

dismiss the indictment and in the alternative for discovery and a

bill of particulars in New York County Supreme Court, which

motion was promptly disposed of. Subsequent to his return to

the jurisdiction to face the pending State charges, the only

motions he made was to suppress evidence and to dismiss the

indictment for denial of a speedy trial. To urge that a motion to

dismiss an indictment for denial of a speedy trial, justifies

delaying a trial that at all times the prisoner has demanded is

bootstrap reasoning. Thus, petitioner was not the cause of any

delay, by any motion practice initiated by him. Nor does a

motion to suppress evidence stay the 120 day limitation period,

since the purpose of affording the State 120 days to bring a

defendant to trial is to afford opportunity for such motion.

Indeed, a suppression hearing properly occurs at the beginning

of trial. Moreover, it is presumed that the State is ready to try a

sentenced prisoner when it demands his return and produces him

within the jurisdiction. The reason for the one hundred eighty

day and one hundred twenty day allowable delays in

commencing trial is to afford the parties opportunity for

reasonable motion practice. There is nothing within the

statutory provisions that excludes the running of time for the

period it takes to dispose of motions.

In addition, the State has urged that Cumella caused delay

by making the identical motion that has been made by petitioner

a year before to inspect the Grand Jury minutes and dismiss the

indictment or in the alternative for discovery and a bill of

particulars. ‘Since this motion had already been decided on

petitioner's application, no more than a week was reasonable to

dispose of it on Cumella’s application, assuming arguendo that

the making of such motion creates an excludable event.

18

Petitioner has quoted extensively trom the minutes ot

adjournments following his return to the jurisdiction, that

refutes the argument of the State that succeeded in the appellate

division and the district court and court of appeals that

petitioner was the cause for the delay. At all times, petitioner

was ready to proceed to trial. I ts true that Mooney, who was

free on bail, was not pressing for a trial and his attorney even

tried to delay through the guise of other engagements. However,

Mooney, on bail, did not have the right to impair petitioner’s

Interstate Detainer Act rights. There was no valid cause for the

court to have delayed the case beyond the hundred twenty day

period. Up to the running of the one hundred twenty day period,

the defendants were always ready, while the prosecutor was not.

The record clearly shows that on August 8, 1974, the court

denied petitioner's motion to dismiss the indictment for failure

to afford him a trial within one hundred twenty days, and then

delayed the trial another seventy days to October 17, 1974. The

record is also replete with the cause for delay, to wit, Mr.

Toolan’s other obligations, including a thirty day trial in which

he participated, appearances in various calendar clearing parts

and vacation. Such grounds are not sufficient cause for delay.

United States v. Ford, 550 F.2d 732 (2nd Cir. 1977).

Initially, the district court questioned whether federal

habeas corpus is an available remedy for a State prisoner raising

the issue of the violation of his rights under the Interstate

Detainer Act, pointing to case law in the Second Circuit,

holding that such issue is not available for a federal prisoner on

a petition brought pursuant to 28 U.S.C. §2255, the federal

post conviction relief statute. However, the reason for its

nonavailability on a Section 2255 motion, is that the latter is

only available for matters not appearing upon the record. A

violation of the Interstate Detainer Act appears on the record,

and therefore, must be raised on direct appeal. On a federal

habeas corpus petition brought pursuant to 28 U.S.C. §2254,

the prisoner is confined to the raising of issues that appear on

the record and that were raised and rejected by State court.

‘

19

Since an Interstate Detainer Agreement issue appears on the

record and raises a constitutional issue, it is cognizable on

federal habeas corpus. In Walker v. King, 448 F. Supp. 580

(S.D.N.Y. 1978), the Southern District faced this question and

held that a federal court may properly entertain a State

prisoner’s claim for violation of the Interstate Detainer

Agreement in a federal habeas corpus proceeding. In that case,

like the one at bar, the State prisoner had been serving a federal

sentence when returned to State court to face State criminal

charges. The federal habeas corpus court held that the Interstate

Detainer Agreement must be strictly construed. The State must

‘ respond to a federal prisoner's demand to be tried within 180

days. The court held that even returning a State prisoner,

subsequent to his plea of guilty, but prior to pronouncement of

sentence, to federal custody, violates his rights under the Act,

and calls for his release on federal habeas corpus. The court

reasoned that the purpose of the Act was to minimize

interference with rehabilitation programs and the tension

accompanying the uncertainty of pending charges, and therefore,

its provisions must be strictly construed.

The district court conceded that petitioner was not brought

to trial within the required 120 day limitation period from the

time he was produced within State court jurisdiction and

calculates that the delay was a full 92 days beyond what 1s

permitted by the Act. This 92 day delay must be read in

conjunction with the more than two year delay in bringing

petitioner to trial for this serious crime from the date of his

arrest on September 21, 1972, which combine to spell out a clear

Sixth Amendment violation of his right to a speedy trial coupled

with his due process of law rights under the Interstate Detainer

Act.

The court below rationalized justification for the illegal

delay, by proceeding to exclude certain periods, without

justification. Thus, a co-defendant made a discovery motion,

which took twenty eight days to decide, which the court

20

excluded from the one hundred twenty day requirement.

However, petitioner had made an identical discovery motion at

the preliminary stages of this indictment and before his federal

conviction. The State has made no showing why it did not

immediately consent to make the same discovery to the co-

defendant as had been ordered for petitioner. The State is

certainly not privileged to engage in unnecessary litigation with a

co-defendant and then exclude that time from the one hundred

twenty day requirement. Nor did the habeas corpus court

properly exclude the time to adjudicate petitioner’s motions to

dismiss the indictment for denial of a speedy trial and violation

of the Interstate Detainer Agreement. Indeed, what the court

clearly overlooked was that the State court was in flagrant error

in denying the two motions made to dismiss the indictment for

violation of the Interstate Detainer Agreement, or at the very

least, to order an immediate trial.

The Interstate Detainer Agreement allows for a one

hundred twenty day delay in bringing a prisoner to trial —

rather than requiring an immediate trial — to allow for motion

practice, to allow for limited calendar congestion, to allow for

possible vacations of prosecutorial personnel and the like. The

court below, in justifying the delay based upon such ordinary

incidents, overlooked the very fact that by allowing the

prosecutor one hundred twenty days to start trial is sufficient to

allow for ordinary delay for motion practice and the like.

Overcrowded court dockets and understaffed prosecutors has

never been considered an impressive basis for delaying a trial.

Strunk v. United States, 412 U.S. 434 (1973). Therefore, when a

statute fixes a time for bringing a defendant to trial, it is

presumed that a prosecutor who delays up to the limit of the full

time allotment to commence the trial has done so because of

such ordinary type factors. Those very same type incidents

cannot be drawn upon a second time to justify delay beyond the

statutory limitation period. United States v. Favaloro, 493 F.2d

623 (2nd Cir. 1974) Indeed, the time limit is in the nature of a

Statute of Limitations, that is not subject to revival, absent the

21

most extraordinary of circumstances. The Supreme Court in

United States v. Mauro, 98 U.S. 1834 (1978) used language that

made it abundantly clear that the time period fixed in the

Interstate Detainer enactment must be treated as a Statute of

Limitations, subject to revival only under the most

extraordinary of circumstances. The Court wrote:

“We view Article IV(c) as requiring

commencement of trial within 120 days whenever

the receiving State initiates the disposition of

charges underlying a detainer it has previously

lodged against a state prisoner.”

Such language does not allow for exclusion of periods of time

that are ordinarily part of the trial development process. It

would seem that nothing short of inaccessibility to a crucial

witness or the mental incapacity of the defendant or the like

could justify tolling this Statute of Limitations period.

Nor does the Interstate Detainer Agreement allow for

engagements of trial counsel for a co-defendant to whittle away

the rights of petitioner under the statute.

Indeed, in Mauro, the Supreme Court pointed out that

prior to its enactment “detainers were allowed to remain lodged

against prisoners for lengthy periods of time, quite often for the

duration of a prisoner’s sentence.” It was to eliminate substantial

interference with prison rehabilitation programs and to relieve

prisoner anxiety that the statute was enacted. What the court

below overlooked was that the statute serves rehabilitation needs

of a convicted defendant against whom further additional

charges are pending, not the administration of the criminal

judicial process and therefore, the time limitations must be

strictly construed.

22

CONCLUSION

This Court has never ruled whether the limitations periods

prescribed in the Interstate Detainer Agreement are true

limitations periods causing abatement of the criminal actions

falling within their purview and if so. whether ordinary events in

the prosecution of a criminal case, such as motion practice, may

properly extend the limitation period for bringing a defendant to

trial.

For the foregoing reasons, petitioner prays that this petition

for a writ of certiorari be granted.

Respectfully submitted,

Robert E. Green

Attorney for Petitioner

la

APPENDIX

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

Ata stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on the 6th day of April one thousand nine

hundred and seventy-nine.

Present:

Hon. William H. Mulligan

Hon. William H. Timbers

Hon. Ellsworth A. Van Graafeiland

Circuit Judges,

JOHN FORAN,

Appellant,

against

HON. PAUL METZ, as Superintendent of Great Meadow

Correctional Facility,

Appellee.

79-2018

2a

Judgment

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Southern District

of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the order of said District

Court be and it hereby is affirmed on the opinion below of the

Hon. John M. Cannella, 78 Civ. 81 (S.D.N.Y. Jan. 9, 1979), to

the extent that it found no violation of the Interstate Agreement

on Detainers.

s/ William H. Mulligan

William H. Mulligan

s/ William H. Timbers

William H. Timbers

s/ Ellsworth A. Van Graafeiland

Ellsworth A. Van Graafeiland

3a

MEMORANDUM DECISION OF THE UNITED STATES

DISTRICT COURT OF THE SOUTHERN DISTRICT OF

NEW YORK

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOHN FORAN,

Petitioner,

-against-

HON. PAUL METZ, as Superintendent of Great Meadow

Correctional Facility,

Respondent.

78 Civ. 81

(JMC)

CANNELLA, D.J.:

Petition for a writ of habeas corpus is denied. 28 U.S.C. §

2254.

Petitioner is presently confined at Auburn Correctional

Facility pursuant to a judgment of the New York County

Supreme Court convicting him, after a jury trial, of attempted

murder. On February 18, 1975, petitioner was sentenced to a

term of imprisonment of seven to twenty-one years. The

judgment of conviction was affirmed, without opinion, by the

Appellate Division of the New York Supreme Court and leave

to appeal to the New York Count of Appeals was denied.

Petitioner seeks a writ of habeas corpus, pursuant to 28

US.C. § 2254, claiming that his state court trial was

unconstitutional because:

4a

Memorandum Decision

|. The Court refused to instruct the jury that a

reasonable doubt of the guilt of petitioner might

result from the lack of evidence against him, in

violation of the Fourteenth Amendment.

2. The use of evidence against petitioner seized

from the vehicle in which he was a passenger

after he was illegally detained by the police for

two hours, without charges or probable cause,

violated his Constitutional rights secured by the

Fourth Amendment.

3. A twenty-five month delay from his arrest in

bringing petitioner to trial, as well as delays in

excess of 180 days and 120 days, respectively,

from his demand to be brought to trial and from

his production in the jurisdiction from the

institution where he was serving a_ Federal

sentence, deprived petitioner of his

Constitutional right to a speedy trial secured by

the Sixth Amendment.

Petition for a Writ of Habeas Corpus, at 14. The facts pertinent

to each of these claims are incorporated into the discussion

below.

Jury Instructions

To prevail on his claim that the jury instructions in the state

court trial invalidated his conviction, petitioner must establish

“not merely that the instruction is undesirable, erroneous, or

even ‘universally condemned,’ but that it violated some right

which was guaranteed to the [petitioner] by the Fourteenth

Amendment.” Cupp v. Naughten, 414 U.S. 141, 146 (1973).

Sa

Memorandum Decision

In this regard, the trial transcript! discloses that following

the judge's charge, petitioner took exception to that portion of

the instructions defining “reasonable doubt.” Petitioner

requested that the jury be instructed “that a reasonable doubt

may arise from the evidence presented or from the lack of

evidence presented by the Prosecution.”? The trial court denied

this request but did charge further on the definition of

reasonable doubt.'

In United States v. Caruso, 358 F.2d 184 (2d Cir.), cert.

denied, 385 U.S. 862 (1966), the United States Court of Appeals

tor the Second Circuit confronted the precise alleged error that

petitioner asserts in support of his request for a writ of habeas

corpus. In Caruso, on direct appeal from a federal conviction,

the late Judge Anderson rejected the argument as follows:

The remaining question raised on this appeal

concerns the refusal of the trial judge to charge

that reasonable doubt is a doubt which, in the

exercise of reason, may arise not only from a

consideration of all the evidence in the case but

also trom a lack of evidence. It would not have

been error for the court to charge as requested,

but this court has not made it a requirement that

the trial judge, in charging on reasonable doubt,

include the words “from a lack of evidence” or

“trom a want of evidence.” United States v.

Rinaldi, 301 F.2d 576, 578 (2d Cir. 1962). The

charge as a whole correctly conveyed to the jury

the concept of reasonable doubt. ae

Id. at 186-87. Similarly, in the instant case, the Court concludes

that there was no error in the state court jury instructions on the

concept of reasonable doubt.

6a

Memorandum Decision

Fourth Amendment

On September 21, 1972, at 5:00 a.m., the vehicle in which

petitioner was a passenger was stopped by several police cars in

Central Park. At the time, petitioner was seated in the front

passenger's seat, with codefendant Cumella in the driver's seat,

and codefendant Mooney in the rear passenger seat. The police

conducted an on-the-spot search of the car, but upon

discovering no evidence, brought the car and its three occupants

to the local police station for further investigation.

Approximately two hours later, they again searched the car and

this time found a spent .38 cartridge shell on the floor just

behind the driver’s seat. The police then arrested the petitioner

and his two companions. Sometime thereafter, they learned that

the car was registered to and owned by codefendant Cumella’s

wife.

Pursuant to New York law, Justice Harold Birns presided

over a three-day pretrial hearing on the motions by petitioner

and his codefendants to suppress the cartridge shell found in the

car. Movants claimed that the evidence had been seized without

a warrant and without probable cause, in violation of the fourth

amendment. On September 3, 1974, Justice Birns denied the

motion to suppress. At the trial, before Justice Evans, the

cartridge shell was received in evidence over petitioner's

objection. Tr. 958-59. On appeal, petitioner renewed this

objection. His brief to the Appellate Division contains nineteen

pages of argument that the search of the car violated the fourth

amendment. See Brief for Appellant Foran at 3-5, 2440, People

v. Mooney, 53 A.D.2d 1065, 385 N.Y.S.2d 694 (Ist Dep't 1976).

In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court

sharply curtailed federal habeas review of state convictions by

stating:

7a

Memorandum Decision

where the State has provided an opportunity for

full and fair litigation of a Fourth Amendment

claim, the Constitution does not require that a

State prisoner be granted federal habeas corpus

relief on the ground that evidence obtained in an

unconstitutional search or seizure was introduced

at his trial.

Id. at 482 (footnote omitted). Petitioner argues that Stone does

not control the outcome here because his opportunity to litigate

his fourth amendment claim in the state courts “cannot be

classed as ‘fair’ where the Court makes a finding that the police

were justified in detaining suspects and their vehicle, to await the

coming of daylight in order to conduct a fruitful search.”

Petitioner's Reply Memorandurn of Law, at 5.4 What petitioner,

in effect, suggests is that under Stone, a federal court may

characterize state court procedures as “unfair,” and hence review

the fourth amendment claim, where the outcome is erroneous.

The Second Circuit has emphatically rejected this interpretation:

“we have no authority to review the state record and grant the

writ simply because we disagree with the result reached by the

state courts.” Gates v. Henderson, 568 F.2d 830, 840 (2d Cir.

1977) (en banc), cert. denied, 434 U.S. 1038 (1978). According to

the court in Gates, the merits of a habeas petitioner’s fourth

amendment claim are irrelevant if he had an opportunity to

litigate it fully and fairly. The Court finds that Foran was given

that opportunity. Six police officers testified at the three-day

suppression hearing, the transcript of which comprises 417

pages. Petitioner renewed his objections at trial and on appeal

and cannot complain that he was in any way precluded from

utilizing state court procedures. Under Stone and Gates,

therefore, the Court may not review the merits of petitioner's

fourth amendment claims.

8a

Memorandum Decision

Speedy Trial

On September 21, 1972, petitioner was arrested, arraigned

on a complaint and admitted to bail. The grand jury proceedings

initially were delayed because the complaining witness was still

in the hospital. The case was presented to the Grand Jury in

October 1972, but no bill was filed. The case was presented to

the Grand Jury again and, on March 30, 1973, petitioner and his

codefendants were indicted for attempted murder and assault.

On April 11, 1973, petitioner was arraigned on the

indictment and entered a plea of not guilty. On May 11, 1973,

petitioner moved (1) to dismiss the indictment, (2) for a bill of

particulars and other discovery, and (3) for inspection of the

grand jury minutes. On June 29, 1973, the discovery aspects of

petitioner's motion were granted in part by Justice Sutton and

the prosecutor was given thirty days to comply. On July 9, 1973,

Justice Sutton denied petitioner’s motion to inspect the grand

jury minutes and dismiss the indictment.

Meanwhile, petitioner was indicted on unrelated federal

charges. These proceedings culminated on September 12, 1973,

when petitioner was sentenced to a seven-year term of

imprisonment, following his conviction on a plea of guilty to

extortion in the United States District Court for the Eastern

District of New York. Thereupon, petitioner was remanded to

the federal correctional facility in Lewisburg, Pennsylvania, for

execution of his sentence. Petition for a Writ of Habeas Corpus,

at 5.

That same day, September 12, 1973, petitioner’s state court

case appeared on the calendar. Understandably, petitioner did

not appear. The prosecutor informed the court of petitioner’s

federal sentence and that the People would attempt to secure

petitioner's presence for trial by a writ of habeas corpus ad

prosequendum. See N.Y. Crim. Proc. Law § 580.30 (McKinney

9a

Memorandum Decision

1971). In December 1973, federal authorities informed the state

prosecutor that they would not honor the writ, allegedly because

of overcrowding at the New York City federal detention facility.

The prosecutor informed the state court of this situation on

January 16, 1974, and indicated that he would seek production

of the petitioner pursuant to the Interstate Agreement on

Detainers. N.Y. Crim. Proc. Law § 580.20 (McKinney 1971); 18

U.S.C. app. (Supp. 1978). )

On January 22, 1974, according to an endorsement on the

state court docket sheet, Justice Martinis took the following

action: “Defendant incarcerated in U.S. Penitentiary, Lewisburg

Pa. Bail is Exonerated and Bench Warrant lodged.” On Jasiunty

24, 1974, federal authorities received the prosecutor's request

and, on February 12, 1974, advised him that petitioner leat

available for return to New York. On or about March 19, 1974

State agents brought petitioner to New York City. ;

| From March 21, 1974, to April 21, 1974, the prosecutor

assigned to petitioner’s case, was engaged in a murder trial on an

unrelated indictment filed three months before petitioner's. See

Respondent's Brief, at 49, People v. Mooney, 53 A.D.2d 1065.

= N.Y.S.2d 694 (Ist Dep't 1976) [hereinafter cited as

Respondent’s Brief”].

According to petitioner, between March 1974 and June

1974: “Case appeared on calendar numerous times. People never

ready. Defense consistently prepared to proceed.” Brief for

Appellant Foran, at 50, People v. Mooney, 53 A.D.2d 1065, 385

N.Y.S.2d 694 (Ist Dep't 1976). On May 2, 1974, a new attorney

was substituted for one of petitioner's codefendants. On May 3

1974, this attorney made certain discovery motions which “ie

denied on May 30, 1974. On June 14, 1974, and June 24, 1974.

the Prosecutor was granted adjournments because of the

unavailability of police witnessess who were on vacation

Respondent's Brief, at 50. |

10a

Memorandum Decision

On June 13, 1974, petitioner filed a motion, returnable June

24, 1974, seeking to dismiss the indictment for denial of a speedy

trial, presumably pursuant to state law. Petitioner 8

Memorandum of Law, at 6 (filed Jan. 9, 1978); see N.Y. Crim.

Proc. Law §30.20 (McKinney Supp. 1978-79). On the return

date, one of the petitioner’s codefendants was granted leave to

join in the motion and the prosecutor was granted an

adjournment until July 8, 1974 to serve responding papers.

Transcript of Proceedings, at 2 People v. Foran, No. 6387/72

(N.Y. County Sup. Ct. June 24, 1974) (Culkin, J.). On July 8,

1974, the prosecutor filed his response to petitioner’s motion and

the court adjourned the motion, over petitioner’s objection, to

July 15, 1974, for decision. Transcript of Proceedings, at 2, 7,

People v. Foran, No. 6387/72 (N.Y. County Sup. Ct. July 8,

1974) (Culkin, J.). On July 17, 1974, Justice Culkin denied the

motion to dismiss with leave to renew if petitioner was not

brought to trial by September 1974. Justice Culkin held that

petitioner had not sought a speedy adjudication, that he had

acquiesced in much of the delay by failing to object to

adjournments; that the prosecutor had acted reasonably in

attempting to obtain petitioner from the federal authorities; and

that time required to answer and decide petitioner's motions for

discovery and dismissal should be excluded from the speedy trial

time limitations. Respondent's Brief, at 50-51.

On July 16, 1974, petitioner filed his third motion to

dismiss, returnable July 26, 1974, this time alleging a violation of

the Interstate Agreement on Detainers. Petitioner's

Memorandum of Law, at 7; Respondent’s Brief, at 51. On the

return date, the court adjourned the motion, over petitioner's

objection, to August |, 1974, since the prosecutor assigned to the

case was on vacation and had not filed a response. Transcript of

Proceedings, at 2-3, People v. Foran, No. 6387/72 (N.Y.

County Sup. Ct. July 26, 1974) (Culkin, J.). On August |, 1974,

the prosecutor had not yet returned from vacation and the court

granted an adjournment to August 8, 1974 for the prosecutor to

lla

Memorandum Decision

serve his responding papers. Transcript of Proceedings, at 4-7,

People v. Foran, No. 6387/72 (N.Y. County Sup. Ct. August 1,

1974) (Melia, J.). On August 5, 1974, the prosecutor appeared

and announced that he had just returned from a three-week

vacation but, subject to the decision on the motion, the People

were ready for trial. Transcript of Proceedings, at 2-6, People v.

Foran, No. 6387/72 (N.Y. County Sup. Ct. August 5, 1974)

(Melia, J.). On August 8, 1974, the prosecutor filed his Opposing

papers and Justice Melia heard argument on the motion.

Following the argument, the court denied the motion from the

bench. Justice Melia observed that under the Interstate

Agreement on Detainers, the court was empowered to “grant

any necessary or reasonable continuance.” N.Y. Crim. Proc.

Law §580.20 (Art. IV(c)) (McKinney 1971). The court found

that the continuances granted during the time the prosecutor

was engaged in another trial were necessary and reasonable and

that the District Attorney should not have been required to

assign another assistant to the case. Further, the court found

that the time during which the codefendant’s discovery motion

was pending (May 3, 1974 to May 30, 1974) was a necessary and

reasonable continuance and did not warrant a severance of

petitioner's trial; that the adjournments ‘granted because of the

unavailability of prosecution witnesses were necessary and

reasonable; and that the adjournments granted because of the

prosecutor's vacation were necessary and reasonable. The court.

therefore, found that the Interstate Agreement on Detainers had

not been violated and, accordingly, denied the motion to

dismiss. Transcript of Proceedings, at 27-29, People v. Foran,

No. 6387/72 (N.Y. County Sup. Ct. August 8, 1974).

Thereupon, counsel for a codefendant represented to the court

that he was scheduled to commence a trial of a nineteen-count

federal indictment, in the United States District Court for the

Southern District of New York. on August 20, 1974. He further

Stated that the defendants and witnesses in that case were

travelling to the trial trom Florida and that he expected the trial

would consume more than thirteen actual trial days. For these

12a

Memorandum Decision

reasons, counsel for petitioner's codefendant requested an

adjournment until the conclusion of the federal trial. The court,

noting the possibility of prejudice to petitioner and the other

codefendant, denied the application and marked petitioner's case

ready for trial. Transcript of Proceedings, at 30-36, People v.

Foran, No. 6387/72 (N.Y. County Sup. Ct. August 8, 1974).

Shortly thereafter, petitioner and his two codefendants

moved for a hearing on their motions to suppress certain

physical evidence and statements. Justice Birns presided over the

three-day suppression hearing, discussed earlier. Transcript of

Proceedings, People v. Mooney, No. 6387/72 (N.Y. County

Sup. Ct. August 12-14, 1974). On September 3, 1974, the motion

to suppress was denied. In an affidavit dated September 16,

1974, counsel for one of petitioner's codefendants informed the

court that he was engaged in a trial in federal court and asked

that the case be adjourned. Respondent's Brief, at 52.

On October 16, 1974, petitioner filed his fourth motion to

dismiss the indictment, this one alleging a failure to prosecute.

Petitioner’s trial commenced the following day, October 17,

1974. The court reserved decision on petitioner’s pending

motion, Tr. 37-39, and denied it at the conclusion of the trial.

Tr. 1417.

Petitioner now comes to this Court seeking a writ of habeas

corpus on the ground that the pretrial delays in state court

denied him his sixth amendment right to a speedy trial. The

Supreme Court has identified four factors that a court should

consider in passing on such claims: “Length of delay, the reason

for the delay, the defendant's assertion of his right, and prejudice

to the defendant.” Barker v. Wingo, 407 U.S. 514, 530 (1972). In

the instant case, the total delay between arrest and trial was less

than twenty-five months. The time between arraignment on the

indictment and commencement of the trial was eighteen months.

The Court does not find these delays to be presumptively

l3a

Memorandum Decision

prejudicial. See United States v. Tanu, No. 78-1255 (2d Cir

Nov. 17, 1978) (federal trial commenced more than four itis

after arrest, and more than twenty months after dismissal sf

State indictment for the same transaction, did not violate sixth

amendment).

| As to the reason for the delay, the Court finds no evidence

of “[a] deliberate attempt to delay the trial in order to hamper

the defense,” Barker v. Wingo, supra, at 531, on the part of the

state court prosecutor. Rather, the delay is attributable to time

required to decide petitioner’s pretrial motions, the difficulty in

securing petitioner's presence from federal authorities, actions of

petitioner's codefendants, the prosecutor's engagement in

another criminal trial, and the prosecutor’s summer vacation.

| Although petitioner maintains that he sought a speedy

adjudication of the state court charges as early as September

1973, Justice Culkin found otherwise. In this regard, the Court

notes that petitioner's first motion to dismiss for failure to afford

him a speedy trial was not made until June 13, 1974, some

twenty-two months after his arrest. The prosecutor answered

ready for trial on August 5, less than two months later, and the

trial actually commenced on October 17, 1974.

| Finally, in his submission to this Court, petitioner makes no

claim whatsoever of any prejudice occasioned by the delay. At

his state court trial petitioner called no witnesses. Moreover.

petitioner was continued on bail following his arraignment on

the indictment. Although he was in state custody from March

20, 1974, this was a result of his federal sentence and not the

state court indictment.

| Upon consideration of the record of petitioner’s state court

trial, the Court finds no basis for invalidating petitioner's

conviction and sentence on sixth amendment grounds.

l4a

Memorandum Decision

Interstate Agreement on Detainers

The threshold issue, with regard to petitioner's claim based

on the Interstate Agreement on Detainers, concerns the

appropriate scope of review. The United States Court of

Appeals fro the Second Circuit has held that a violation of the

Interstate Agreement on Detainers, is not a basis for habeas

corpus relief under 28 U.S.C. §2255. Edwards v. United

States, 564 F.2d 652 (1977); see Williams v. Maryland, 445 F.

Supp. 1216, 1220 (D. Md. 1978). And since “there can be no

doubt that the grounds for relief under §2255 are equivalent to

those encompassed by §2254, the general federal habeas corpus

statute,” Davis v. United States, 417 U.S. 333, 344 (1974), there

is no reason for a different result under section 2254. On the

other hand, the United States Court of Appeals for the Seventh

Circuit has held that

an allegation of a state prisoner, that he has been

denied rights under the [Interstate Agreement on

Detainers], is an allegation that he is in custody

in violation of a law of the United States, and the

requirement for federal habeas corpus

jurisdiction under 28 U.S.C. §2254(a) is met.

Echevarria v. Bell, 579 F.2d 1022, 1025 (1978) (footnote

omitted). The United States Court of Appeals for the Sixth

Circuit, taking yet another approach, has implied that something

more than a bare violation of the time limitations of the

Interstate Agreement on Detainers would have to be shown

before a federal habeas corpus court could invalidate a state

conviction. Stroble v. Egeler, 547 F.2d 339 (6th Cir. 1977) (per

curiam). In Stroble, the court remanded the denial of a writ of

habeas corpus for an evidentiary hearing to determine whether

the continuances granted in the state court trial “were on the

y

1Sa

Memorandum Decision

basis of good cause shown after notification and with

[petitioner] and counsel present.” 547 F.2d at 341. The Sixth

Circuit further instructed the district court that,

[i}f there was a failure to observe one or more of

these provisions, the court should then determine

whether prejudice to the [petitioner] resulted

therefrom, and if not, whether non-prejudicial

violations of the [Interstate Agreement on

Detainers] nonetheless mandates vitiation of the

trial and sentence and dismissal of the

indictment.

Id.

} This Court is of the opinion that a violation of the time

limitations, contained in Articles IIIa) and IV(c) of the

Interstate Agreement on Detainers, provides no independent

basis for the grant of a writ of habeas corpus under 28 U.S.C. §

2254. Rather, such claims should be a factor to consider in

determining whether a petitioner's sixth amendment speedy trial

rights were violated. See Barker v. Wingo, 407 U.S. 514, 530

(1972). Nevertheless, the dismissal of petitioner’s claims need not

be based solely on that ground. Even upon construing this

developing area of the law most favorably to the petitioner, and

reviewing his claims de novo, the Court concludes that the time

limitations of the Interstate Agreement on Detainers were not

violated.

It is now clear that a writ of habeas corpus ad

prosequendum is not a “detainer” for purposes of the Interstate

Agreement on Detainers. People v. Squitieri, 91 Misc.2d 290,

397 N.Y.S.2d 888 (N.Y. County Sup. Ct. 1977); cf United States

v. Mauro, 436 U.S. 340 (1978). Accordingly, the time limitations

of the Interstate Agreement on Detainers did not begin to run

l6a

Memorandum Decision

until the bench warrant issued by Justice Martinis was lodged as

a detainer against petitioner with the warden of the federal

penitentiary in Lewisburg on January 24, 1974.

The 120-day limit of Article 1V(c) of the Agreement, rather

than the 180-day limit of Article III(a), is applicable here since

the petitioner was actually produced in New ‘York City on

March 19, 1974, less than sixty days after the issuance of the

bench warrant. Accordingly, if there had been no necessary or

reasonable continuances, petitioner's trial should have begun by

July 17, 1974. Since his trial did not commence until October 17,

1974, ninety-two days later, the question for the Court 1s

whether the full ninety-two days can be attributed to necessary

and reasonable continuances that were granted for good cause

shown in open court, the petitioner or his counsel being present.

See N.Y. Crim. Proc. Law § 580.20 (Art. IV(c)) (McKinney

1971).

Although the thirty days (March 21, 1974 to April 21, 1974)

that the prosecutor was engaged in another criminal trial would

be good cause for a continuance, nothing in the record suggests

that the prosecutor sought a continuance on this basis.

Accordingly, this period cannot be excluded Irom the time

limitations of the Interstate Agreemert on Detainers.

However, the twenty-eight days (May 3, 1974 to May 30,

1974) during which petitioner’s codefendant’s discovery motion

was pending may be excluded. Petitioner had notice of the

motion and made no objection to the delay it would engender.

The ten-day adjournment, granted to the prosecutor (June

14, 1974 to June 24, 1974) was based upon the unavailability of

police witnesses and was granted in open court. From June a.

1974 through September 3, 1974 (seventy-one days), petitioner's

pre-trial motions were made and decided. Two motions sought

dismissal of the indictment for denial of a speedy trial and the

17a

Memorandum Decision

third, made nearly two years after arrest, sought suppression of

physical evidence. Thereafter, counsel for one of petitioner's

codefendants sought adjournments because of other

engagements.

Petitioner argues that the time required to decide his three

motions to dismiss for delay should not be excluded from any

computation of time limitations. The Court disagrees. Where a

criminal defendant seeks an adjudication on an issue that would

preclude a trial, he cannot thereafter argue that the time

required to decide his claim should be held against the state for

purposes of computing limitations of time. In the instant case.

petitioner made three pretrial motions to dismiss the indictment.

each alleging a delay in prosecution. The Court declines to hold

that state courts must decide such motions immediately upon

filing on pain of dismissal of the indictment for delay.

Petitioner also argues that the delay caused by the pretrial

motions of one of his codefendants and by the engagement of

counsel for the other codefendant should not be attributed to

him. In further support of this argument he claims that his trial

should have been severed from that of one of his codefendants

“for subscantive reasons.” Petitioner's Memorandum of Law, at

33. however, petitioner made no claim regarding a severance in

his brief to the Appellate Division nor did he press any conflict

with his codefendants in the pretrial motions filed in the trial

court. Accordingly, the Court rejects this argument as well.

Finally, petitioner points to the prosecutor’s three-week

summer vacation and argues that this was neither a necessary

nor reasonable ground for continuance. Again the Court

disagrees. As Justice Melia pointed out, in denying petitioner's

third speedy trial motion, “[i]f the district attorney could not Z0

on vacation because he had a case to try, he would never get one

because he always has a case to try.” Transcript of Proceedings,

at 29, People v. Foran, No. 6387/72 (N.Y. County Sup. Ct.

18a

Memorandum Decision

August 8, 1974). Other judges, in the analagous context of the

federal Speedy Trial Act, 18 U.S.C. § 3161 ef seq., agree that

reasonable vacation periods for counsel should be excluded from

the applicable time limitations. See Second Circuit Judicial

Council Speedy Trial Coordinating Committee, Proposed

Guidelines Under the Speedy Trial Act, at 38 (Nov. 20, 1978).

Moreover, in the instant case, the prosecutor answered ready for

trial on August 5, 1974, only nineteen days after the limitations

of the Interstate Agreement on Detainers would have expired,

had there been no continuances.

In sum, at least 109 days of delay are directly attributable to

motion practice by petitioner and his codefendants, and the

unavailability of police witnesses. Thus, the fact that petitioner's

trial did not commence until ninety-two days after the otherwise

applicable limitation of the Interstate Agreement on Detainers,

does not make a violation of that statute.

CONCLUSION

For the foregoing reasons, the petition for a writ of habeas

corpus is denied. 28 U.S.C. § 2254.

SO ORDERED.

s/ John M. Cannella

JOHN M. CANNELLA

United States District Judge

Dated: New York, N.Y.

January 9, 1979. v

19a

Memorandum Decision

rOeOrnorTes

| Following the filing of the petition, the Court advised

counsel for petitioner that it would require transcripts of the

state court suppression hearing and other pretrial proceedings.

Alter several unsuccessful attempts to obtain the transcripts,

from counsel for the codefendants in the state court trial,

petitioner's attorney subpoenaed the transcripts from the Clerk

of the New York County Supreme Court. Thereafter, in August,

1978, the minutes were delivered to the Court.

2 Transcript of Proceedings, at 1384, People v. Mooney,

No. 6387/72 (N.Y. County Sup. Ct., Oct. 17 - Nov. 6, 1974). At

the request of counsel for both parties, the various transcripts

referred to have not been docketed as exhibits in order to avoid

the expense of duplication. Upon the filing of this Decision the

transcripts shall be returned to counsel, on condition that these

be made available in any subsequent court proceedings

[hereinafter, specific pages of the trial transcript will be cited as

“Tr. —.”).

3 Tr. 1390-91. The trial court initially instructed the jury on

the issue of reasonable doubt as follows:

In all criminal cases including this one the

Defendants are presumed to be innocent of the

charges made against them. This presumption

continues throughout the Trial, throughout the

testimony, throughout summations and even

during my instructions to you. It continues as a

presumption unless and until you, by your

verdict of guilty, have decided that the

presumption has been overcome by the evidence

or until you decide by your verdict of not guilty

that the presumption has become an established

20a

Memorandum Decision

fact. The burden of overcoming the presumption

is not on the Defendants but it is on the

Prosecution.

In order for the Prosecution to overcome

this presumption, the charges against the

Defendants must be proved in a manner which

we call beyond a reasonable doubt. A reasonable

doubt is defined as an actual doubt you are

conscious of after going over in your minds the

entire case, giving consideration to all of the

testimony and exhibits and to every part of the

evidence. Guilt does not have to be established as

a mathematical certainty in order to be

established beyond a reasonable doubt.

Reasonable doubt is a doubt which arises

from the evidence for some good reason. It is not

merely a vague or imaginary doubt. It is not a

mere whim, not a guess, not surmise, neither is a

reasonable doubt a subterfuge to which a juror

might resort in order to avoid doing a

disagreeable duty.

If on a consideration of the entire case with

all of the evidence, including the testimony and

exhibits together with such inferences, such

conclusions as fair minded and intelligent men

and women have the right to draw from the facts

which have been established from the evidence

and which you believe, if you have such a belief

in the Defendant’s guilt of any offense charged

against the Defendant, that a prudent and

reasonable person would feel it safe to act on that

belief on matters of the highest concern to

himself, then you may safely say that the

2la

Memorandum Decision

Prosecution’s case with respect to that offense

has been established beyond a reasonable doubt.

However, if you have a reasonable doubt, as |

have defined it, as to whether the Defendants’

guilt has been satisfactorily shown as to any

offense charged against that Defendant, then that

Defendant is entitled to a verdict of not guilty as

to that offense.

Ir. 1332-34. Following the exceptions, the judge supplemented

his charge, in part, as follows:

Ladies and gentlemen, if you do not find any

fact beyond a_ reasonable doubt, then the

Defendant is entitled to the benefit of that doubt.

There are some facts you may find beyond a

reasonable doubt and some you may not find

beyond a reasonable doubt. If the facts that you

find beyond a reasonable doubt lead to a

conclusion of guilt, then that conclusion has been

reached beyond a reasonable doubt. It is not

necessary that every individual fact be proved

beyond a reasonable doubt. But sufficient facts to

establish the guilty of a Defendant: beyond a

reasonable doubt in the entire case must be

proved.

Tr. 1395-96.

4 In Rakas v. Illinois, 47 U.S.L.W. 4025 (U.S. Dec. 5,

1978), the Supreme Court held that an automobile passenger

qua passenger has no legitimate expectation of privacy in the

area under the seat of a car. Consequently, in that case, a

warrantless seizure of incriminating evidence from this area did

not violate the petitioners’ fourth amendment rights. /d. at 4031.