# Petition — Foran v. Metz

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 830

## Text

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

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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

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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.

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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

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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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0171%3A1. Public record. Not legal advice.